without danger of their health Not guilty pleaded Verdict for the Plaintiff The Plaintiff prayeth Iudgment and doth offer for Authorities in this Case Smith and Mopham 4 Ass 3 4 E 3.37 5 E 3.47 new Book of Entries fol 19. in 5 Jac. between Smith and Mopham an action upon the case for erecting a Tan-fat with averment of corrupting the Aire and water to the annoyance of the Plaintiff and adjudged for the Plaintiff after Verdict Coke lib 4. Aldreds case pleaded in new Book of Entries fol 106. an action of the case for erecting a Hogsty Ad nocumentum aeris adjudged 22 H 6.14 by Newton an action upon the case lyeth expresly Blande against Mosely Trin. 29 Eliz Bland against Mosely an action of the case for stopping Lights in London adjudged a void Prescription to build so high that the Neighbors lights are therby stopped in a City Old Book of Entries fol 406. in the Edition 1596. action upon the Case brought for annoying a Piscary with a Gutter that came from a Dye-house 1. And there an action brought against a Dyer Quia fumos foeditat alia sordida juxta parietes querentis posuit per quod parietes putridae devenerunt ob metum infectionis per horridum vaporem c. ibid. morari non audebat 13 H 7.26 An action lyeth against a Glover because he with a Lime-pit so corrupted the water that the Tenants departed F. N. B. 185. b. A Writ lyeth to the Major of a City to cleanse the Streets from filth wherby infection might grow By which cases it appeareth that although Sea-cole be a necessary Fuell to be used and that Brew-houses are necessary yet the Rule in Law is Sic utere tuo ut alienum inon laedas And Chimneys Dye-houses and Tan-fats are also necessary but so to be used that they be not prejudiciall to their Neighbors And in this Case the Iury found that this new Brew-house and Privy was maliciously erected to deprive the Plaintiff of the benefit of his Habitation and Office and that the Plaintiff was hereby damnified as in the Declaration is alledged And upon Conference and Consideration of the Case all the Iudges did concur that Iudgment should be given for the Plaintiff THE TABLE Reciting the heads of all the PRINCIPALâ— CASES in this BOOK A ACcompt payment by the appointment of the Plaintiff is no good plea before Auditors where the issue was Ne unque receivor 133 Acceptance of a new Lease makes a surrender 104 Action of the case for giving evidence 11 Action brought by the Committee of a Lunatick 16 Action by the Feme for Frank-bank before admittance 18 Action brought for Rent by the Husband of a Feme to whom the land was granted by a former Husband by his Will untill the Daughter of the Devisor came to the age of eighteen years with a Condition 36 Act on brought against an Attorney for procuring a Judgment to be entred against the Plaintiff and a speciall plea therupon 125 Amendment in a Judgment 41 Amendment where it shall be 41 42 56 81 82 83 84. Act of the Court shall be amended 92 Amendment shall not be of the Pledges left out in the Imparlance Roll upon Bill by an Attorney 92 Amendment of the Proclamation of a Fine 122 Annuity to commence after eight years contained in the Will and no mention therof in the Will by which it is given 32 Annuity out of the clear gains of the Allome Mines 33 Arbitrement of all actions untill the date of the Award 9 Administrators cannot plead that the Intestate died outlawed 53 Advowson in grosse for life 88 Assumpsit by the Husband to the Wife before marriage 17 Assumpsit upon request to procure assent 39 Assumpsit in consideration to maintain Suit in defence of a Common and the Title therof 89 Assumpsit in consideration of forbearance 46 Assets need not to be alledged in an action upon the case against Executors 27 Arbitrements 29 Assumpsit lies not for Rent 34 Assise of Darrein presentment abates by a Quare Impedit 3 Avowry for Homage 50 Attaint how a Prisoner convicted and let at large shall be brought to execution 21 Avowry for Rent granted to the Father without alledging that it was arrear after the death of the Father 55 B. BAil insufficient taken by the Sheriff no action lies for it 120 Bail discharged where the Principall died before the return of the Capias 47 Bail action lies not against the Sheriff for taking insufficient bail 77 Baron and Feme at Exigent whether the Feme shall have Supersedeas alone 86 Bankrupt how the distribution of his Estate shall be 37 Bankrupt upon a fraudulent conveyance 42 Bar recovery in trespasse for taking of Goods is no Bar to an action of the case of Trover 81 Buggery 116 Bylawes 5 Burglary 20. 33 C. CHallenges 24 Condition not to be assistant to another in any action and after he bring a Writ of Error with another upon a iudgment against him and the other 40 Condition to levy a Fine who ought to do the first act 48 Condition to perform Covenant c. concerning Rent where demand is necessary inde 114 Condition to resigne a Benefice upon request 111 Consideration of forbearance 46. 108 Consideration to save one harmlesse if he being an Inn-keeper would safely keep a Prisoner 55 Consideration to confess a Iudgment and a promise therupon to defer the entry therof 63 Consideration that if the Obligor would pay the money the Obligee would deliver up the Bond 76 Consideration Ex post facto 84 Consideration that wheras one was indebted to the Plaintiff in seven pounds for keeping an Horse if the Plaintiff would deliver the Horse the Defendant promised to pay the seven pounds 101 Conspiracy 49 Copyhold may be extinguished without actuall surrender 65 Copyhold land enclosed where the Lord hath a Feild course if it be a forfeiture or no 102 Costs upon Non-suits where the Plaintiff hath no cause of action 16 Costs shall not be allowed upon the Statute of 5 Eliz. for Perjury 22 Costs against an Informer upon a Statute repealed 35 Costs shal not be allowed against Executors 69 Costs shall be allowed against Executors upon Non-suit in a Writ of Ravishment of Ward 78 Councel to what persons it shall be allowed to Prisoners arraigned 133 Counter-plea to the view 44 Custome of London to give security for the payment of Orphans Portions 30 Custome of Copyholders to make a Lease for years 101 Covenant of an Apprentice and when an Infant shall be bound therby 63 D. DEvise to a Feme a tearm upon condition 36 Debt against a Sheriff for monies returned levied by him 11. 32 Demand not necessary in Avowry for a Rent-charge 23 Demand of Rent with a Nomine poenâ—e 114 Demand of Rent where necessary or not 42 Discontinuance where Tenant in â—ail and he in Reversion joyn in a Lease pur aut vie 126 Devise of a fee after a
and Beaumount 77 Specot and Shere 91 Simpsons case 92 Shudsouth and Fernell 107 T. TImberly and Calverley 47 Tadcaster and Hallowell 47 Thompson and Green 105 Trugeon and Meron 128 W. WIlde and Woolf 41 Wolley and Bradwell Wrotheys Case Sir George Walker and VVorsley 83 VValcot and Hind 14 PASCH 15 JACOBI Combes versus Inwood THE first day which I sate at the Bench after the day in which I was sworn Ejectione suma A Conveâ—ance delivered to be enrolled and yet not inâ—â—lled shall be accounted a Record i. e. Thursday the twenty second of May A Iury was at the Bar from the County of Surrey in an Ejectione firmae brought by Combes against Inwood upon a Lease made by one John Stockwood which was Heir to one Edward Stockwood and was for a Farm in Chertsey called Haylwick And upon Evidence the Case appeared to be thâ—â—s Edward Stockwood was seised in fee and about the 29 Hen 8. this Land was supposed to be conveyed to King Hen. 8. in fee for the enlargement of the Honour of Hampton but no Deed nor any other matter of Record was in being to prove this originall Conveyance and many Arguments were used to prove that there was never any such Conveyance because there was not one of any such conveyance named in the Act of 31 H 8. But of the other part it was proved that this Land had continued in exchange as the Land of H 8. all his life by divers accounts and that it had been enjoyed by divers Leâses made by Edward 6. and Queen Elizabeth and Rent paid for them And that in the year 16 Eliz. she granted it in Fee-farm to the Earl of Lincoln and under that Title the Land had been quietly enjoyed untill of late time And the Court delivered their opinion That it there were a Deed by which Stockwood conveyed the Land to H 8 and that brought into the Court of Augmentation although this Deed be not found nor inrolled yet it is a sufficient Record to intitle the King and it is a Record by being brought into Court and there received to be inrolled And the Report of the case in Lord Dyeâ— fol 355.19 Eliz. was not as it is there reported for it was for Bormiâ— Inne and it was adjudged a good conveyance and in this case the Iury found for the Defendant Trin. 14 Jac. Rotulo 769. Steward versus Bishop Words STeward brought an Action upon the Case for certain words against Bishop because that the Defendant said Steward is in Leicester Gaol for stealing an Horse and other Cattell the Defendant pleaded not guilty and the Iury found for the Plaintiff and Damages to thirty pounds And it was moved in Arrest of Iudgment by Serjeant John Moore that the Action doth not lye for the words do not affirm and Deed or Act or Offence but that he was in prison upon suspition of an Offence And it is the Ordinary speech and communication by way of interrogation What is such a one in prison for For stealing And all the Kalenders are such a one for stealing of a Horse such a one for Murther Vide Coke lib 4. he is detected for Perjury is not actionable And to say such words of a Iustice of Peace or an Attorney peradventure it shall be otherwise yet it seems all one if it touch not him in his Profession To say that I. S. was in Newgate for forging of Writs will not maintain an Action and so adjudged in Nowels case and Iudgment was given that the action will not lye Pasch 15 Jac. ONe brought and Action upon the Case and counted that the Defendant in consideration that the Plaintiff would take such a woman to his Wife promised to pay twenty pounds when he shall be therto requested after the marriage Request where it shall not be alledged and that the Plaintiff such a day had married the said Woman and the Defendant though often requested did not pay the aforesaid twenty pounds And it was moved in Arrest of Iudgement that he had not shewn any particular request but yet Iudgment was affirmed for the Plaintiff for this action is grounded upon the promise which imports Debt and not upon any collaterall matter which makes it a duty by the performance of a collaterall Act upon the request Trin. 15 Jac. Resolved upon the Statute of 3 H. 7. Cap. 2. VPon divers Assemblies at Serjeants Inne of all the Iudges to consider by the direction of the Star-Chamber whether by the Statute of 3 H 7. cap 2. the taking of any Woman against her will and the marrying or deflowring of her be Felony or only of such a Woman which hath Substance or Goods or Lands or otherwise be an Heir apparent the body of the Act seems to be generall viz. He that shall take any Woman so against her will And it was said that it were a great inconvenience that it shall be Felony to take an Heir apparent of a poor man or to take a Woman which hath but a very small Portion and of mean Parentage and as it was said of a Woman in a red Peticote and that it shall not be felony to do and commit the said Offence in taking the Daughter of an Earl or some other great man of the Realm But it was resolved that the body of the Act was incorporated to the Preamble for it had been adjudged that if one take a Woman with an intent to marry her or deflower her c. and doth it not this is not Felony and this rests only upon the Preamble then it shall have relation as well to such a Woman which is before named viz. Maid Widow or Wife having substance and to an Heir apparent and to no other And so it was taken in a Case in the Star-Chamber by the like resolution 10 Jac. between Baker and Hall and the Lord chief Baron said Baker and Hall that it had been adjudged that no Appeal did lye upon this Statute and all the Presidents in effect warrant this resolution vide Stamford fol. 37. Statute 1 H. 4. Cap. 14. COnsideration upon the Statute 1 H 4. Cap 14. was had how the word Appeals shall be intended before the Constable and Marshall And 26 Eliz. Doughties Case Doughties case Petition was made to the Queen by the Heir to make a Constable and Marshall but she would not Admitting that the King get a Commission of the Office of a Constable and Marshall whether the King may have any remedy before them by Indictment or information by the Attorney generall Mich. 15 Jac. Andrews versus Hacker AN Assise of Darrein Presentment was brought by Andrews against Hacker and the Earl of Salop Assise and against the Arch-bishop of York for the Church of Gothur in the County of Nottingham the Assise was brought to the Bar and when the Iury appeared the Arch-bishop made default and the others appeared and pleaded in abatement of the Writ that the same
Court 12 E. a. granted a Rent-charge of two shillings out therof to John Milleton and Walter Milleton In Replevin one makes Conusance derive his Estate from one as Cosin and Heir and shews not how John Milleton dies and Walter survived and died seised and this Rent descended to one John Milleton of P. as Cosin and Heir to the aforesaid Walter and he was seised in Fee and one John Dinham was seised in Fee of one house and twenty acres of Land in Pensons and by Deed shewn in Court exchanged them with the said John Milleton for the said Rent and Walter de la Therne being seised of the Land out of which the Rent issued attorned and gave Seisin of the Rent to John Dinham wherby he was seised in Fee of the Rent and conveyed the Rent by three discents to this John Dinham for whom the Defendant makes Conuzance for ten shillings for five years arrear And the Plaintiff demurs generally upon the Conuzance And the cause was that it is not shewn how John Milleton is Cosin and Heir to Walter upon the discent First if it be good as this Case is viz. That he claimes not as Cosin and Heir but makes Title under him by conveyance afterwards Also because the Defendant makes Conuzance and is a stranger Secondly if it be but forme And this Case was argued at Bench briefly in Trin. 16. And I was of opinion because that this is the Conuzance of a Bayliff and it is a discent in one blood to which Dinham is a stranger and because that a good Issue might be taken therupon as it is alledged And if it had been a case of Bastardy the Iury might have tryell it therfore it is good by the Common Law and differs from a Formedon for there he which brings it is privy vide 41 Eliz. 13 14 in a Scire facias good without shewing how 33 H. 6. 34. Sir T. C. Case 27 H. 6. 2. 4 E. 3. 43. vide 19 E. 3. Quare impedit 58. And if it were not good by the Common Law yet it was but form and aided by the Statute of 27 Eliz cap. 5. vide in Doctor Leifeilds Case lib 10. fol 94. And Iustice Winch agreed with me but Warburton to the contrary and argued strongly that it was substance and was very materiall and he relied upon the Book in the 38 H 6. 17. and he put the cases of 11 H 6. 43. 8 H 6. 22. 2 H 2. and Wimbish and Talbois case Plowden There is debate and argued two against two and no Iudgment given because that it is not shewn Comment Cosin vide 2 H 5. 7. a good Issue there is no such Ancestor a generall Demurrer confesse not the matter as in Debt upon a Bill he plead payment and the Plaintiff demur that Demurrer doth not confesse the payment Lord Hobart would not speak of the Common Law but it seemed good to him by the Statute The Title of the Act is An Act for furthering of Justice Definitive Iustice and Interlocutery The Statute takes not away form but the intrappings and snares of form No place where the Obligation is made cannot be tried by them affirmatively Hough and Bamfields case matter and no form and so Dyer 319. But the point of Cousinage which comes by videlicet is form And if the case of Wimbish and Talbois had been at this day it should bee aided and Iudgment for the Defendant Sheriff ought to deliver the Moyety by meets and bounds IT was argued by the Court that upon an Elegit the Sheriff ought to deliver the Moyety by meets and bounds and if it be so that the Conuzor be Ioynt-tenant or Tenant in Common then it ought to be so specially alledged and contained in the return Pasch 16 Jac. Drury versus Fitch Case DRury an Attorney of this Court brought an action upon the case against Fitch one of the Serjeants of London for saying I arrest thee for Felony and after not guilty pleaded the Plaintiff was Non-suited Costs upon Non-suit where the Plaintiff hath no cause of action And now it was moved that no costs should be given to the Defendant because that the words will not beare action and therfore Iudgment shall be given Quod nil capiat per billam And they vouched one President in Grewstons case in Ban. Reg. vide that now by the last Statute costs shall be given to the Defendant in all cases where the Plaintiff should have costs if he recover but in such case where the Plaintiff if he recover shall not have costs the Defendant upon the Non-suit of the Plaintiff shall not have costs But it seemed to Lord Hobart that in this case the costs are for vexation and this is more vexation if he had no cause of action vide 29 H 8. fol 32. It is there resolved that an action lies for the costs notwithstanding a Writ of Error brought And the last day of this Term the Court was of opinion that the action lies for the words for it is more then these I charge thee with Felony and if the Action lies not yet the Defendant shall have costs for it was such an Action in which the Plaintiff ought to have costs if he recover Vpon motion in Court by the direction of Iustice Warburton who had caused a Iury to be drawn by reason of the slendernesse of the matter and for avoiding the charge of a speciall Verdict the Case was A Copyholder was a Lunatick and the Lord committed the custody of his Land to one which brought an Action of Trespasse Action brought by the Committee of a Lunatick which is a Copyholder and whether it ought to be brought by him or by the Lunatick was the question And the opinion of the Court was that the Committee was but as Bayliff and hath no Interest but for the profit and benefit of the Lunatick and is as his Servant and it is contrary to the nature of his Authority to have an Action in his own name for the interest and the Estate and all power of Suits is remaining in the Lunatick And it was ruled in this Court that a Lunatick shall have a Quare impedit in his own name vide Beverlies case Coke lib 4. the diversity between a Lunatick and an Ideot and H 8. Dyer fol 25. And though when Guardian in Socage as it was adjudged makes a Lease for years his Lessee shall have an Ejectione firmae yet there the Guardian hath the Interest and is accountable therfore But in this case the Committee hath no Interest but is as a Servant appointed by the Lord to keep the possession for him who is not able to keep it for himself Lord Hobart and the Court also agreed that the Lord of a Mannor hath not power to commit or dispose of the Copyhold of a Lunatick without speciall Custom no more then a man shall be Tenant by the Curtesie c. of a Copyhold
inclosing Woods but suffering them to lye open after cutting by the space of one month he alledged the cutting the tenth of April and the lying open untill the second of May which was not a month And upon Not guilty pleaded it was found for the Plaintiff and upon motion in Arrest of Iudgment it was awarded that the Defendant eat inde sine die and no costs And the Lord Hobart said that this Statute was made for the ease of the Subject and for avoiding and preventing of vexations and therfore did enumerate all the cases in which the Informer could not prevail and had many words that the Statute of 23 of H. 8. or any other Statute doth not give expresly costs upon demurrer and this is not within 23 H. 8. if upon discontinuance And now the matter passe against the informer be it by Verdict or Iudgment all is one for the makers of this Statute intended to curb all vexatious Informers And if it shall be suffered that Informers may inform upon Statutes not in force and pay no costs that would open a Window to the great vexation of the Subjects And for Presidents not inflicted upon they are of little esteem And I concurred and though Verdict be found for the Informer yet there being no Statute there can be no Offence and it is in Law as not guilty And this case is within the meaning and Letter of the Statute for the Statute intend costs where the cause passe against the Informer be it by default of matter or form Winch doubted of this speciall case because the matter is found for the Informer but he agreeh if it were upon Iudgment upon demurrer or speciall Verdict costs should be given And Iustice Warburton was of opinion that there should be no costs in this case for he is not capable to sue where the Statute is discontinued And so if the Venue be misawarded and he said that he had conference with the Lord chief Baron who also held that there should be no costs in this case And so the matter rests Blackburnes Case Norff. Debt AN action of Debt was brought by I. S. against Blackburne upon a Lease for a year and so from year to year And upon Nil debet pleaded the Iury gave a speciall Verdict to this effect A Devise to a Feme of a term upon condition Wells seised of Land in Fee devised them to his Daughter and her Heirs when she come to the age of eighteen years and that his Wife should take the profits of the Land to her use without any account to be made untill the Daughter come to the age of eighteen years And made his Wife his Executor and died And it was provided that the Wife should pay the old Rent and find the Daughter at School untill she could read and write English the Feme enters and proves the Will takes Husband and dies the Husband assign this term to the Lessor who brought this Action And it was found that all the Conditions were performed and that the Daughter was within the said age of eighteen viz. thirteen years And the sole question was whether it be a term for years in the Wife and whether when she takes Husband he shall have it after the death of his Wife and it was ruled clearly that it is and it being by Will it is a good Lease Another question was if this trust of Education be Quasi a Limitation personall and with intent that the Lease shall not be to the Wife any longer then she may educate her Daughter And it was agreed that it was not for any one may educate her and find her at School and there it is without any default in the Wife for it is the act of God and therfore Judgment for the Plaintiff Trin. 17 Jac. Whittingtons Case IVdgment in Debt against Ferdinand Earl of Derby Scire facias Sci. fac by the Baron and Feme the death of one of them shall abate it at the Suit of I. Whittington and his Wife she being Administrator to her Husband who had the Iudgment who brought a Sci. fac upon the Iudgment against 30. Ter-tenants they appear and all besides 3. plead that at the time of the Iudgment Ferdinand the Earl was seised in tail c. And the Plaintiff had Iudgment against the three with a cesset executio and afterwards Whittington the Husband died and this is surmised and entred vpon Record viz. the death of the Baron after the Darrein continuance and whether the Writ shall abate or no was the question And per totam Curiam the Writ shall abate for the Wife there cannot recover as a Feme sole and though this Writ be judiciall yet it is in nature of an Originall for she might have had an action of debt upon the Iudgment and ought to have that action solely after the year untill the Statute of Westminster 2. which give Scire facias and to this Writ they may plead But in Writs Iudiciall which are only Writs for the doing of execution there the death of one shall not abate it vide 19 Ass 10. 25 E 3. and vide Reads case Coke lib 10. fol. 134. Ruggles Case IN Ruggles Case upon the motion of Serjeant Arthure upon the Statute of 1 Jacobi cap. 15. concerning Bankrupts How the distribution of the Estate of a Bankrupt shall be a Commission was sued out by some of the Creditors and they pursued it and the Land was sold and it being opposed they defended their severall Suits and prevailed by a tryall at Bar And after other Creditors which before would neither partake nor aid them came and prayed to be joyned with them And the Commissioners doubted upon the Statute whether they might allow them to be joyned and the words of the Statute are That it shall be lawfull for any of the Creditors of the Bankrupt within four months after the Commission sued forth and till distribution shall be made by the said Commissioners for the payment of the Bankrupts Debts as in such case hath been used to partake and joyn with other Creditors that shall sue out the said Commission the said Creditors so joyning to contribute to the charges of the said Commission and if the Creditors came not in within four months then the Commissioners to have power to distribute It was resolved that the Commissioners may sell and prepare for distribution presently upon the execution of the Commission but untill the four months are passed they may not proceed to distribution for the Creditors which inhabite in the remote part of the Realm peradventure cannot have notice and it may be carried so secretly that if they might distribute presently that they which sued out the Commission should be only satisfied when indeed there was no default in the others Also it was resolved that the offer of Creditors to be joyned and before they be partakers is not an affectuall offer without offering to be contributory
use of the Kings Bench is never to enter the Admission but only to recite it in the Count vide 11 H 7. Rot 412. In a Writ of Right by Baron and Feme and another Feme Infants there per custodes good vide 8 E 4 5. for the Mainprise entred in another Term lib Intractionum fol 366. It was vouched by Croke and affirmed by Yelverton in one Simpsons case in Durham Simpsons case where the Tenant was by Prochein amy where it should be by Guardian was Error The Presidents are that an Infant when he sue may be by Guardian or Prochein amy the one or the other but when he is sued it shall be by Guardian Mich. 3 Car. Wolfe versus Hole WOlfe an Attorney Plaintiff against Hole by a Writ of Priviledge Amendment and he Count upon an Assumpsit And after Verdict given and Iudgment a Writ of Error was brought and moved that there was a default in the Imparlance Roll viz. fault de trover pledges which was as it ought to be in the Plea Roll And it was moved that it might be amended and after debate at Bar by Henden and Davenport it was resolved that the not finding of Pledges is not matter of form but matter of substance and it concerns the King for if the cause to amerce the Plaintiff the Iudgment is Ideo le Plaintiff ses pledge sont Amerce and that it is not aided by the Statute of 18 Eliz. quod quaere and vide 12 Eliz Dyer 288. there is a Case written by me that An 17 Jac was amended after the Verdict and in one Hillaries case and vide thâ—re in Dyer that the Plaintiff when he is sued by Priviledges ought to find pledges and that as well as when a Bill is filed against an Attorney But now because that it was assigned for Error and that if it be amendable the Iustices of the Kings Bench would amend it this Court would not but if it had been in the Imparlance Roll and omitted in the Plea Roll it should be amended vide 18 E 4. 9. that Pledges may be entred at any time Hil. 2. Car. Rot. 565. Hilton versus Paule RIchard Hilton brought an action of Trespasse against Robert Paule Trespasse Which shall be said a Parish Church within the act of 43 Eliz. for the maintenance of thâ— poor for the taking of a Saddle at Stoke-Goldenham And upon Not guilty pleaded the Iury gave a speciall Verdict Viz. That the Parish of Hinkley was de temps dont memory c. and yet is an ancient Rectory and a Church Parochiall And that the Town of Stoke-Goldenham is an ancient Town and parcell of the Rectory of Hinkley And that from the time of H. 6. and afterwards untill this time there hath been and is in the Town of Goldenham a Church which by all the said time hath been used and reputed as a Parish And that the Inhabitants of Stoke-G by all the said time had had all Parochiall Rights and Church-wardens And that the Towâ—â— of Stoke-Goldenham is distant two miles from Hinkley And the Verdict concluded it it should seem to them that Stoke Goldenham is a Parish for the relief of Poor within the Statute of 43 Eliz. cap. 2. then they find for the Plaintiff if not for the Defendant And this Case was argued by Serjeant Barkley and he vouched Linwood fol 89. and said that there is Ecclesia major minor and a dependant Church upon the principall and another Church and which is found to be used and reputed ergo it is not a Parish And that the Exception of the Chappell of Foulnes which by the Statute is made a Parish proves that Chappell and Parish are not within the Statute he vouched 4 E 4. 39. and 5 E 4. to prove that divers Town may be one Parish And the Lord Richardson said that it is a clear case that this is a Parish within the intent of the Statute of 43 Eliz. for the relief of Poor And that the Church-wardens and Overseers of Stoke-Goldenham might assesse for the relief of the Poor And though it be found that after the time of H. 6. and untill now it had been used as a Parish Church that doth not exclude that it was not used so before And a Reputative Chantery is within the Statute of Chantries 1 E 6. And this Statute being made for the relief of the Poor and that they might not wander therfore the intent of the Statute is to confine the relief to Parishes then in esse and so used And every one of the Court delivered their opinion and concurred And so Iudgment was given for the Plaintiff Hil. 3 Car. Peto versus Pemmerton Mich. 3 Car. Rot. 414. Replevin SIr Edward Peto Knight brought Replevin against Robert Pemmerton and Giles Thompson The Defendants made Conusance as Bayliffs to Humphrey Peto Where Grantee of a Rent-charge takes a Lease of part of the Land and surrenders it the Rent shall be revived and that Humphrey the Father of the said Humphry was seised of the place in which c. in Fee and by his Deed granted the Rent of six pounds to the said Humphrey his Son for life out therof to Commence after the Death of the Grantor and shewed that Humphrey the Father died and for Rent arrear c. The Plaintiff in Bar to the Avowry confesse the grant and seisin of the Land and that the said Humphrey died seised of the Land out of which the Rent was granted and that that descended to William and from William to the Plaintiff who entred and demised to the said Humphrey the Son parcell of the Lands unde c. for five hundred years by force of which Lease the said Humphrey had entred and was possessed The Defendants replyed that afterwards and before any part for which they made Conusance was arrear the said Humphrey the Son surrendred the said Lease to Sir Edward Peto to which surrender the said Sir Edward agreed wherupon the Plaintiff demurred And this Case was argued by Henden and he said that when the act of him which had the Rent made the suspension his act alone could not revive it But a Rent suspended might be revived by the act of Law or by the joynt act or agreement of the parties by whom the suspension was made 21 H. 7. 7. 19 H 6. 4. 19 H 6. 45. 7 H 6. 2. As for the personall things when they are suspended they are extinct unlesse it be in auter droit as if Feme Executrix take the Debtor to Husband and the Baron dies the Wife shall have an action of Debt against his Executors One reason in this case is because that by the surrender which is accepted the Contract is determined and that is by the act of both And by the surrender the Estate for years is extinguisht to all purposes as to that to which the surrender was made as if he had granted a Rent now it shall
commence and he is seised in Fee and may hold it charged with both the Rents 2 H 5. 7. 5 H 5. 34. Ass 15. And this Estate surrendred is in Esse as to the benefit of strangers but not as to the benefit of him who accepted it for hee is seised in Fee vide Lillingstons case And the Court was of opinion that the Rent was revived and that the Contract is now determined Nota that this grant to Humphrey the Son for years was but upon confidence to assign it over If Grantee of an Estate for life of a Rent take an Estate for life of part of the Land and surrender it yet the Rent is not revived for it was extinct in this case if he had granted his interest quere and if he had granted his interest over to I. S. and he had surrendred it that shall not revive the Rent because that he had by his granting over of his interest discharged of the Rent extinguish it quaere but in the principall case the Rent was suspended by the acceptance of the Lease and is revived by the surrender And it was agreed that where Lessee for years surrender to which the Lessor agree and accept it the possession and the interest is in him without entry Hil. 3 Car. Sandford versus Cooper SAndford brought a Scire facias against Cooper to have execution of a Iudgment for sixteen pounds Sci. fac which Iudgment was de Oct. Hil. An. 2 Car. And one being returned Ter-tenant pleaded that after the Iudgment viz. 22 Jan. he against whom the Iudgment was viz. John Bill acknowledged a Statute-staple and sheweâ— that by that the Land was extended and after upon liberate delivered in Execution and demand Iudgment wherupon the Plaintiff demurred And the sole question was to what day the Iudgment shall have relation for it appears in the pleading To what day a Judgment shall have relation that the twentieth day of January was the day of Essoin and it seemed to the Court that the Iudgment should have relation to the first day of this return as well as if it had been a return in the Tearm viz. 15 Hil. for otherwise it should be uncertain And he may be Non-suited upon this day vide 5 Eliz. Dyer fol. 200. That a recovery being in the first return the Warrant of Attorney made and dated the fourth day is taken to be a Warrant after Iudgment and vide 33 E 6. fol 45 46. the principall case there If a Nisi prius taken after the day of Essoin shall be good and it is adjudged not for the first day is the return And it was agreed that in Common Parlance the first day of the Tearm is the fourth day viz. If one be obliged to appear or to pay monies the first day of such a Tearm Loquendum est ut vulgus But the Law relate the Iudgment to the first day of every return vide Dyer 361. a Release pleaded after the Darrein Continuance which was dated the one and twentieth of January which was the day after the Essoin day and it was not good for it ought to be before the utas Hillarii Gillinghams case And my Brother Harvey and Crook vouched one Gillinghams case viz. A Release of all Iudgments before the fourth day and after the day of Essoin would not release this Iudgment which was de Octab. Hil. vide many cases vouched to this purpose 4 E 3.34 H 6. 20. a Writ of Error brought after the utas and before the fourth that is good and brought after Iudgment vide 22 H 6. 7. a. a Writ of Error ought to be brought after the Iudgment rendred or otherwise no Execution shall be stayed And all the Court gave Iudgment for the Plaintiff in this Scire facias Hil. 3 Car. Holt versus Sambach Trin. 2 Car. Rot. 731. Replevin Tenant for life with a remainder to him in tail expectant and remainder in fee grant a rent in fee afterwards had fee by fine SIr Thomas Holt brought Replevin against Thomas Sambach in which upon Demurrer the Case was Sir William Catesby being Tenant for life of Land the remainder in tail to Robert his Son the remainder in Fee granted a Rent of ten pounds by the year out therof to William Sambach in Fee and Sir William and Robert his Son levied a Fine with Proclamations which was to the use of the said Sir William in Fee and afterwards the said Sir William enfeoffed Sir Thomas Holt and died Robert had Issue Robert and died And the Court was of opinion that this Grant in Fee is good for he had an Estate for life in possession and an Estate of remainder in tail and remainder in Fee in himself to charge and then the Fee-simple passe by the Grant And although that Robert the Son might have avoided it yet when he had barred the Estate-tail c. by Fine to the use of Sir William now Sir William Catesby had by this acceptance of this Estate to himself avoided the means by which he might have avoided the Rent And although that in Bredons case in the first Book when Tenant for life and he in the remainder in tail joyn in a Fine rendring Rent to Tenant for life that passeth from every one that which lawfully might passe and that the Rent continue after the death of him in the remainder in tail without Issue yet in this case the Estate is barred by the Fine and united to that Estate which William the Grantor had and now William is seised in Fee and this Rent made unavoidable The Case was well argued by Henden and Davenport but it appeared that the Conusance was for twenty shillings part of the rent of fifty pounds behind and for fifty pounds parcell of two hundred pounds arrear for Nomine poenae and did not say in his Avowry that he was satisfied of the rest And therfore Iudgment was given for the Plaintiff vide 20 E 4. 2 a. 48 E. 3. 3. Chichley versus the Bishop of Ely Quare Impedit DAme Dorothy Chichley brought a Quare Impedit against Nich Bishop of Ely and Mark Thompson the Incumbent for the Church of Wimple and counted that Thomas Chichley was seised of the Advowson of the said Church in Fee as in grosse and presented to it being void Edward Marshall which was Instituted and Inducted and afterward the said Thomas Chichley died seised and the Advowson descended to his Son and Heir Sir Thomas Chichley Traverse upon Traverse who by his Deed indented c. for the increase of the Ioynture of the Plaintiff granted the said Advowson to Thomas East and Edward Anger and their Heirs to the use of the said Plaintiff for life and afterwards to the use of the Heirs Males of the body of Sir Thomas Chichley and that by force therof she was seised for life And the Church being hold by the death of the said Edward Marshall she presented and the
to him and he will pay for the making therof that is a good consideration vide Coke lib 8. fol 147. And in this case all the Court were of opinion that the consideration was good for wheras he might have detained the Horse untill he had been paid for the pasture and feeding he at the speciall request of the Defendant had delivered the Horse to him to the use of the Owner which is to the prejudice of the Plaintiff and alienest to him to whose use he was delivered And Iustice Harvey vouched a case which was in this Court adjudged which was in consideration that the Plaintiff had promised to pay to the Defendant ten pounds at a day according to the Condition of an Obligation the Defendant promised to deliver the Obligation and adjudged a good Consideration Turner versus Hodges THe Custom of the Mannor of _____ is found to be for the Copyholders without the License of the Lord of the Mannor they being seised in Fee may make any Lease for a year Custom in a Mannor to make aâ— Lease for years or many years and when they dye that â—â—e 〈◊〉 shall cease and that the Heir or Heirs may enter It was moved in Arrest of Iudgment that this was a bad Custom and that the Copyholders had by Custom an Inheritance and might by the generall Custom of the Ream make a Lease for one year And that tenor the generall Custom of the Realm but the Custom of every Mannor within the Realm vide Coke lib 4. fol 26. in Melwiches Case Custom creates the Estate and the Custom is as ancient as the Estate and is casuall and upon the Act of God and is reasonable that the Heir who is to pay the Fine should have the Possession And yet a Custom that if the Copyholder had surrendred to the Lord that the Lease should be void had been a 〈◊〉 Custom because that he might subvert and destroy by his own act that Estate that he himself had made and he which took the Lease haâ—ing notice of the Custom takes the Lease at his perill for otherwise he might have procured the License of the Lord and then by this License the Lord had dispenced therwith and that is as it were the Confirmation of the Lord For if a Copyholder makes a Lease for twenty years with the License of the Lord and after dies without Heirs yet the Lease shall stand against the Lord by reason of his License which amounts to a Confirmation And the Plaintiff had Iudgment Hil. 4 Car. EJectione firmae was brought and count upon a Lease made by Husband and Wife Lease by Baron and Feme without reservation of any Rent and that was by Indenture And upon Not guilty pleaded a speciall Verdict was given in which the sole question was Whether this Lease was made by Baron and Feme being there was no Rent reserved therby It was objected that this Lease could not be made good by the Feme by any acceptance and therfore it is not the Lease of the Feme no more then if the Verdict had found that the Lease was by an Infant and no Rent reserved that had been a void Lease But it is contrary of a Baron and Feme for the Baron had power and the Feme joyning in the Lease it is not void for she may affirm the Lease by bringing a Writ of Wast or she may accept Fealty And so was the opinion of the Court and Iudgment entred accordingly vide Coke lib 2. fol 61. in Wiscots case Count of a Lease by Baron Feme and shew not that it was by Deed and yet good vide Dyer 91. Pasch 5 Car. Paston versus Utber JOhn Paston brought Ejectione firmae against Barnard Utber upon a Lease made by Mary Paston And upon Not guilty pleaded a speciall Verdict was found at the Bar and the Case was thus Custom that the Lord have a Feild-course over the Lands of his Coppyholders if the Tenant inclose it is no forfeifture Barnard Vtber seised of the said Land to him and his Heirs by Copy of Court-Roll according to the Custom of the Mannor of Binham And that within that Mannor there is such a Custom that the Lord had had one field course for five hundred Ewes in the North-field and the West-field wherof these fifteen acres were parcell from the Feast of Saint Michael if the Corn were inned and if it were not then after the Corn were inned untill the Feast of the Annunciation if it were not before that time sown again with Corn in all the Lands of the Copyholders not inclosed And that it is a Custom that no Copyholder may inclose any Copyhold Land without the License of the Lord And if any be inclosed without License then a reasonable fine should be assessed by the Lord or his Steward for the Inclosure if the Lord would accept therof And it is also a Custom that if the Lord will not accept therof then the Copyholder which so incloseth shall be punished at every Court after untill he open that Inclosure And the said Vtber inclosed the 15. acres with an Hedge and Fence of Quick-set 3. feet deep and 6. feet broad and that he had left 4. spaces of 9. feet broad in the said 15. acres And that the said Vtber was required by the Steward to lay open the said Inclosure and he did it not whereupon there was a command to the Bayliff to seise them as forfeit which was done And the said Mary being Seignoress of the Mannor entred and leased to the Plaintiff and the Defendant entred upon him Serjeant Davenport argued that it is a forfeiture and against the Custom which creates the Feildage for the Lord as well as the Estate of Copyhold for the Tenant and that this leaving of four spaces is a fraud and device and that it is against his Fealty and is to the damage of the Lord and a thing unlawfull vide Dyer 245. 34 E. 1. Formedon 88. 15 A 7. 10. 29 E 3. 6. That if the Tenant inclose the Commoner may break his hedges And though by Littleton an Inclosure which is a Disseisin is a totall Inclosure wherby he which hath the rent cannot come to distrain yet this also is an Inclosure because that it obstructs the feild-course for they cannot come so freely without interuption or damage for the hedges may deprive the Sheep of their wooll And he compared it to the case of 3 H. 7. 4. One is obliged to make an Estate of his Mannor of Dale if he alien part and then make a Feoffment the Condition is broken and vide 5 E 3. fol 58. a Recognizance with Condition to make a Feoffment to I. S. of the Mannor if he alien part therof he forfeit his Recognizance he vouched 42 E 2. 5. and Coke lib 4. that deniall of Services or making of Wast is a forfeiture 22 H 6. 18. 41 E 3. Wast 82. Dyer 364. And though that the Lord may
proceed by fiue to enforce him to lay it open yet these Affirmative Customs do not toll the Negative And to prove that the Lord had an Inheritance therin he vouched 14 E 2. Fitz. Grant 92. A Rent granted to one and his Heirs out of the Mannor of Dale which he hold of the Mannor of D. this is an Inheritance And if this shall not be a forfeiture then this Customary Inheritance which the Lord had in the feild-course might be tolled at the will and pleasure of the Copyholder Serjeant Hitcham argued strongly to the contrary First That it is no Inclosure because that all is not inclosed Secondly The forfeiture of a Copyhold is alwaies by some thing done to the Copyhold land it self but this is done as it is supposed to the feild-course of the Lord which is not Copyhold and it is better for the Copyhold and makes the land better and also the Feild-course is therby made better and more beneficiall to the Lord and therfore the Copyhold land is not altered but is meliorated and it is like so the case in Dyer 361. Althams case after no Wast done the Evidence was that a Trench was made in a Meadow by which the Meadow was Meliorated and adjudged no wast which might be given in evidence But he said that in Brooks case at the first comming of Popham to be chief Iustice it was adjudged that if a Copyholder build a new house it is a forfeiture for that altoreth the nature of the thing and put the Lord to more charge So if Tenant for yeare makes a Hay-yard in the land that is wast He said that this Custom is qualified by taking a Fine if he would or by imposing a pain in the Court to enforce the Defendant to lay it open And all the Court were of opinion that this is no forfeiture for the reasons before and that this Feild-course is a thing which commence by agreement and is but a Covenant and not of common right And Forfeitures which are odious in Law shall be taken strickly Trin. 5 Car. Starkey versus Tayler Case STarkey an Atterney of this Court brought an action upon the case against one Mr. Tayler of Lincolns Inn for saying of these words to him Words Thou art a common Barretor and a Judas and a Promoter And it was moved in Arrest of Iudgment that these words maintain not action for the generality and uncertainty that he shall be called a common Barretor And the chief Iustice seemed to be of opinion that those words are not more then if he had said That he was a common Brabler or Quarreller But it was urged by Serjeant Hicham that the action lies and that it is a generall Rule Quod sermo relatur ad personam As in Birchley's Case He is a corrupt man And in Mores Case it was said of an Attorney That he was a cousening Knave And if these words were spoken of a common person he doubted if they were actionable but being spoken of an Attorney action lies And if these words were spoken of Iudge without doubt they were actionable And in this case being spoken of an Attorney who is a Minister of Iustice and who hath the Causes of his Clients in his hands to gain them or to lose them The Statute of Westminster saies the Sheriffs are charged to expell all Barretors out of their Countries And in the Statute of 34 E. 3. is the description of a common Barretor and his punishment who is a stirrer of false and unjust Suits and that he shall be imprisoned during the pleasure of the King bound to his good behaviour and fined And Littleton in his Chapter of Warranties faith they are hired to keep Possessions and therfore an action lies But to say of another man That he is a common Barretor is not actionable unlesse he saith that he is convicted Hil. 3 Car Rot. 1302. Watt versus Maydewell Leicest WIlliam Watt brought an Ejectione firmae against Laurence Maydewell Where acceptance of a new Lease for years makes a surrender of the former upon a Lease made by Robert Rome upon Not guilty and a speciall Verdict found the Case was thus Francis Griffith seised of Land in Fee by Indenture bearing date the fourteen of November and 14 Iac. demised the said Land wherof c. for one and forty years to Robert Rome rendring two shillings Rent to commence from the Annunciation which shall be An 1619. and after the same year by another Indenture bearing date the third of December 15 Iac. to commence from the Annunciation last demised the same Lands for ninety nine years to Dame Frances Perroint who entred and was therof possessed And after that the said Francis Griffith by another Indenture the same year bearing date the fourteen day of November 16 Iac. to commence from the seventeenth of November An. 1619. devise it to the said Robert Rome for one and forty years who accepted it and afterwards entred and being possessed made his Will and appointed Executors and died the Executors administred and made the Lease to the Plaintiff who was possessed untill he was ousted by the Defendant And the only question of this Case was if the acceptance of the second Lease by Robert Rome had determined discharged or extinguished the former Lease And after Argument it was adjudged for the Plaintiff the reason was because that by the Lease made to the Lady Perpoint for ninety nine years and her Entry Francis Griffith had but a Reversion and could not by his Contract made afterwards with Robert Rome give any Interest to Robert Rome This Lease made to Robert Rome viz. his former Lease was good in Interest being to commence at a day to come and is grantable over and may be surrendred or determined by matter in Law before the Commencement therof as if he take a new Lease to commence presently which see in 37 H. 6. 29. 22 E. 4. for it tuures in Contract And in this case it had been without question that the taking of the new Lease had been a surrender of the former if it were not by reason of the Lease for ninety nine years which is for so great a number of years that disables him to contract for one and forty years 37 H. 6. 17. 18. 14 H. 7. 3. Dyer 140. Vide Smith and Stapletons case in Plowden If a man makes a Lease for one and twenty years and after makes a Lease for one and twenty yeares by Paroll that is meerly void but if the second Lease had beene by Deed and hee had procured the former Lease to Attorn he shall have the Reversion vide Ive's Case Coke lib 5. fol 11. there it is adjudged that the acceptance of a Leese for years to Commence at a day to come is a present surrender of a former Lease These Cases were vouched in this Case Baker and Willoughby Serjeant Bakers Case in the Court of Wards with the Lady Willoughby that a
if Rent he reserved at the time of the Distresse and it be refused and a Distresse taken that is Tortious 30 Ass 36. 20 H 6. 31. 48 E 3. 9. 2 H 6. 4. And in this case it was said that Reddenda singula singulis that the demand shall be used when the Penalty of the Rent comes in question and not for the Rent And though it be reserved payable at another place thal changeth not the Rent but it is issuable out of the Land and distrainable upon the Lands And lastly it hath been divers times adjudged that the Rent is payable upon the Land 1 Jac Rot 1818. Nich and Langford Skinner and Amery Borman and Bower In Replevin between Nich and Langford Trin 16 Jac. Rot. 954. Between Skinner and Amery vide before between Crawley and Kingswell Trin 3 Car Rot 2865. Rent reserved payable out of the Land And although that the Iudgment is by confession after demurrer yet it was for the reason afore recited Iudgment for the Defendant The Lord Audley's Case Wilts JUratores pro Domino rege super sacramentum suum present Quod Martinus Dominus Audley nuper de Fountell Gifford in Comitatu Wilts Aegideus Broadway de Fountell Gifford praedict in Comitatu praedicto generosus timorem Dei prae oculis suis non habentes Indictment for Rape sed Instigatione Diabolica moti seducti vicessimo die Junii Anno regni Domini nostri Caroli dei Gratia Angliae Scotiae Franciae Hiberniae fidei defensoris sexto Apud Fountell Gifford praedict Comitatu praedicto vi armis c. in super Annam Dominam Audley Uxorem praefati Domini Martini Audley in pace Dei dicti Domini Regis ibidem Existent insult fecerunt Et praedictus Aegidius Br. praedictam Annam Dominam Audley vi armis contra voluntatem ipsius Annae ad tunc ibidem violenter felonicae rapuit ac ipsam Annam ad tunc ibidem contra voluntatem suam violenter felonice carnaliter cognovit contra pacem Domini Regis nunc coron dignitat suas contra formam statuti in hujusmodi casu edit provis Et ultim Juratores praedicti dicunt super sacramentum suum praedict Quod praedictus Martinus Dominus Audley praedicto vicesimo die Junii An. sexto supradicto Apud Fountell Glifford praedictam in Comitatu praedicto felonice fuit presens auxilians Confortans abettans procurans â—adjuvans manutenens praedictum Egidium Br. ad feloniam praedictum in forma praedicta felonice faciend perpetrand contra pacem dicti Domini Regis nunc Coronam dignitatem suas ac contra formam statuti praedicti Wilts IUratores pro Domino Rege super sacramentum suum present Quod Martinus Dominus Audley nuper de Fountell Gifford in Comitatu Wilts Deum prae oculis non habens nec naturae ordinem respiciens Indictment for Buggery sed instigatione Diabolica motus seductus primo die Junii An. Regni Domini nostri Caroli c. sexto Apud Fountell Gifford praedictam in dicto Comitatu Wilts in domo Mansionali ejusdem Martini Domini Audley ibidem vi armis in quendam Florence Fitz-Patrick Yeoman insult fecit cum eodem Florente F. ad tunc ibidem nequit Diabolice felonice contra naturam rem veneream habuit ipsumque F. ad tunc ibidem carnaliter cognovit peccatumque illud Sodomiticum detestabile abominandum Anglice vocat Buggery inter Christianos non nominandum ad tunc ibidem cum eodem Florence F. nequit Diabolice felonice contra naturam Commisit perpetravit in magnam Dei Omnipotentis displicentiam ac totius humani generis dedecus ac contra pacem dicti Domini Regis nunc Coronam dignitatem suâ—s contra formam statuti in hujusmodi casu edit provis The like Indictment for the same Offence with the same person 10 June the same year at new Sarum in the Mansion house of the said Martin c. Memorand That these Indictments were sound 6 April An. 7 Car. at new Sarum by vertue of a Commission before Edward Lord Georges Nich. Hide Knight chief Iustice ad placita c. Thomas Richardson chief Iustice de Banco John Denham Knight one of the Barons c. Edward Hungerford Knight Walter Vaughan Knight Laurence Hide Knight Thomas Fanshaw Knight by Letters Patents Ipsius Domini Regis pro eis quibuscunque tribus vel pluribus eorum inde Confect ad Inquirendum c. Memorand That the 25. day of April An. 7 Car. A Commission was made for the Arraignment of the said Lord Audley upon the said severall Indictments by his Peers in which the Lord Coventry Lord Keeper of the Great Seal was made high Steward And the Peers were in number twenty seven And he pleaded Not guilty And one question was propounded to the Iudges which did attend viz. The Lord chief Iustice of the Kings Bench the Lord chief Iustice of the Common Pleas the Lord chief Baron Baron Denham Iustice Jones Iustice Whitlock Iustice Harvey and Iustice Crook If the Wife might be produced as a Witnesse against her Husband Where a Wife may give Evidence against her Huâ—band And it was resolved that in case of a common person between party and party she could not according to the opinion in Cokes first Institutes fol 6. but between the King and the party upon an Indictment she may although it concerns the Feme her self as she may have the Peace against her Husband Buggary sans Penetration Also it was reported to the Lords by the Lord chief Iustice when they were demanded whether this matter of Fact being as it was proved that Pollution and using of a man upon his Belly Sodomitically without penetration was Buggery by the Statute of 25 H 8. the Lord Richardson was of a contrary opinion upon the Conference yet his opinion was involved in the generall But as he said to me their opinions we delivered only upon this case and upon these examinations if the Lords gave credit to the matter in fact that it was Buggery but they gave not a generall opinion that may be a rule in other cases but upon the foulnesse and abominablenesse of this Fact And afterwards the Lords were not unanimously resolved that it was Buggery but this Point was resolved that they ought to believe and give credit to the Law as the Iudges had declared it And it seems that they could not give a speciall Verdict upon this tryall for it never was seen Also the Commission determines after Iudgment given And the Staff of the high Steward shall be broken And after long debate they seriatim laying their hands upon their hearts as the Mannor is said that he was guilty of Rape beside the Lord North. And for the Buggaries twelve of the Lords acquitted him and fifteen found him guilty and so he had Iudgment And at
Peter Edgecombe and it was to the intent of granting the Rent to the King and his Heirs and then of the recovery of the Mannor out of which c. to the said Sir Peter Edgecombe in tail the remainder to the King and they being seised by their Deed dated the third of June 11 H 8. sealed and delivered which is found in haec verba and that it was inrolled afterwards viz. 7. June granted the said Rent to H 8. Et si super totam materiam the Court adjudged it a Grant by Deed the third of June 11 H 8. then for the Defendant c. And upon Argument at Bar and conference had we all declared our opinion and agreed that Iudgment should be given for the Defendants The first reason was that the Issue is joyned upon the Grant modo forma and not upon the day as is offered by the Traverse but upon the Grant modo forma And the matter found is generally as is alledged vide Littleton Title Release that modo forma avoid and prevent the matter of day and goes solely to that which is materiall And by any thing which appears by the Verdict there is no intervening matter after the third day and before the seventh when the Deed was enrolled and then it is a good Grant of the third of June vide H 7 31. Then the speciall Conclusion found which is contrary to Law shall not conclude the Iudges to give Iudgment according to Law And so Iudgment was given for the Defendants Mich. 8 Car. Col. versus Wilkes SAmpson Cole brought an action of Debt upon the Statute of 2 H. 6. against Leonard Wilkes Tryall at the Bar Debt Debt upon the Statute of the 2 E. 6. for Tithes A Lease was made to two they enter and occupy and set not out their Tithes Debt was brought against one of them it lies not But here it was found that one only occupyed the Land and therfore the action well lies Sir John Gerards case And a Case was shewn Mich 8 Jac. An action of Debt was brought upon this Statute by Sir John Gerard against two Tenants in Common and it appeared that one of them set out his Tithe and that the other afterwards took it and carried it away and adjudged that the action lies only against him which carried it away Pasch 9 Car. Strilley's Case Amendment of the proclamation of a fine VPon motion made in this Court for the amendment of a Proclamation of a Fine levied by Strilley of Lands in Nottinghamshire Mich 11 Eliz. The Proclamations endorsed by the Chirographer upon the Fine were well but in the Transcript and Note of the Fine which is delivered to the Custos brevium by the Chirographer according to the Statute the second Proclamation was entred to be made the twentieth of May where it should have been the twenty third day of May and that by the misprision of the Clerk And it was moved that that might be amended And the Court was of opinion that it should be amended for the Ingrossement upon the Fine by the Chirographer is the foundation and that being well it is sufficient Warrant to amend the other And the Court was of opinion that it was a good Fine without any amendment But it being the misprision of the Clerk it shall be amended as in the case Coke lib 8. Blackamores case The Proclamation made and entred before the Originall shall be amended And it was objected that this Fine and Proclamations as they found in the Office of the Custos brevium are exemplified under the Great Seal and therfore by a Clause in the Statute of 23 Eliz cap. 3. could not be amended after such exemplification To that it was answered that that Statute extends only to Fines before levied which should be exemplified before the first day of June An 1582. And the latter clause in the said Statute doth not extend but to Fines exemplified according to the said Statute And therfore it was awarded to be amended Pasch 9 Car. Glasier versus Heliar Sussex Case GLasier brought an action upon the case for words against Heliar and shewed that three Colliers being in an house in Sussex were feloniously burnt in the said house and shewed that two or three men were indicted convicted and executed for the said Murther the Defendant knowing therof and intending to bring the Plaintiff in perill of his life Words as accessary to the said Murther sayd to him Thou didst bring Faggots a mile and a half to the burning of the Colliers And after Verdict for the Plaintiff and motion in Arrest of Iudgment it was adjudged that the words were actionable For if a Mansion-house be burnt feloniously to say You brought fire to set in the Thatch of the house which is burnt it is actionable Iudgment pro quaerente Smith versus Cornelius Southamp JOhn Smith Town-Clark of Southampton Case brought an action upon the case against one Cornelius an Attorney of this Court and shew that the Plaintiff was of good fame and Town-Clark of the Major and Burgesses of Southampton and was their Scribe and had the custody of all Rolls Pleas and Certificates Words and other proceedings before the Major and Burgesses in the Court before them to be holden And the Defendant intending to draw him into Infamy and to cause him to lose his Office said to him Thou hast made many false Certificate to the Major and Burgesses in that Court and the more thou stirrest in it the more it will stink And it was adjudged that these words are not actionable 1. Because that it is not alledged that there was any Colloquium concerning his Office of Town-Clark 2. Because that it appears not in the Count that the making of Certificates belong to his Office but only that he had the custody of them 3. It might be false and yet no blame to him if he did know them to be false or that he had made them false maliciously And therfore Iudgment was given for the Defendant And this Case was moved again by Hitcham the first day of Trinity Term next And then Iudgment was affrmed Hil. 9 Jac. Edwards versus Laurence Trin. 9 Car. Rot. 2488. Suff. RAchel Edwards brought an action of Trespasse against Richard Laurence for breaking of her Close Trespasse The Defendant in Bar to the new Assignment plead Traverse of Seisin that before the time of the Trespasse supposed to be done one Francis Tayler was seised in Fee of the Tenements wherof c. and so being seised died wherby it descended to Francis his Son and Heir who being seised therof 8 Car. demised it to the Defendant for two years by vertue wherof he entred and gives colour to the Plaintiff by a Grant made to him by Francis the Father where nothing passed therby and so iustifie The Plaintiff replyed that long before Francis Tayler the Son had any thing one Francis Tayler Grand-father of
the Award of Costs were in full force and effect But that afterwards viz. such a time as well the said Iudgment de non pros as the said Iudgment of thirty pounds Debt against the now Plaintiff were evacuated wherupon the Defendant demurred And it having been often debated by Hitcham for the Defendant and Henden for the Plaintiff And now upon Oyer of the Record and of the Iudgment the Court gave Iudgment for the Plaintiff And the Lord Finch said that this action upon the case is grounded upon two misdemeanours 1. The procurement of the said Iudgment for Edw. L. after a Non pros entred for the Defendant And though the Iudgment was erroneous yet the now Plaintiff was vexed and imprisoned therby which indeed is the cause of this action 2. The taking therof unlawfully when the first Iudgment de non pros was in force and the Plea of Nil tiel Record go only to one of the Causes And admitting that there was never a Iudgment de non pros but that the Defendant had unlawfully procured a Iudgment and taken Execution therupon and procured the Plaintiff to be taken in Execution and Imprisoned this is cause of action And to that he hath not answered and therfore he ought to have pleaded Not guilty to that which he takes by protestation Iudgment pro quaerente Pasch 11 Car. Baker versus Hucking Adjudged B. Rs. Tenant in tail and he in Reversion make a I. case Pro ut aut vic TEnant in tail and he in Reversion joyn by Deed in a Lease for life he in Reversion devise the Land by his Will to one in Fee and dieth Tenant in tail dies without Issue and the Heir of him in Reversion and the Devises claim the Land And the sole question is if this Lease be a Discontinuance and it was adjudged a Discontinuance and then the Devise void for he had not a Reversion And the difference was taken when Tenant for life and he in Reversion joyn in a Lease by Deed for without Deed it is first a Surrender Discontinuance and then the Lease or Feoffment of him in Reversion it shall be the Lease of Tenant for life so long as he live and after the Lease of him in Reversion and yet they shall joyn in a Writ of Wast And in this case there is no question but if the Lease had been made solely by Tenant in tail that then it were a Discontinuance and the joyning of him in Reversion alters it not for that amounts to nothing but as a Confirmation and is not like to Bredons case Coke lib 1. fol 76. Where Tenant for life and he in remainder in tail levy a Fine for every one there passeth that which lawfully he may And upon Argument it was adjudged that it was a Discontinuance and not the Lease of him in Reversion but his Confirmation Iustice Crooke differed in opinion Mich. 11 Car. Lashbrookes Case Somerset LEwes Lashbrook an Attorney of this Court brought an action of Trespasse against I. S. for entring into his house and breaking his Close And in the new Assignment he alledged the Trespasse to be in a house called the Entry and in a house called the Kitchin and in his Garden and in one Close called the Court. The Defendant as to the force c. and to all besides the Entry plead Not guilty And as to his entry into the Court and Kitchin A Warrant to four and two of them execute it and the Tenements aforesaid of the new Assignment he plead that he had brought an action against a woman for Trespasse and had so proceeded that he recovered and had execution directed to the Sheriff of Somersetshire and therupon a Warrant directed to four speciall Bayliffs to arrest the said Woman and two of them at Minehead in the County of Somersetshire arrested her and carried her to the house of the Plaintiff in Minehead being a Common Inn and the Defendant entred into the said houses called the Entry and Kitchin and the Tenements aforesaid of the new Assignment to speak to the Bayliffs and to warn them to keep her safe And as soon as he could he returned wherupon the Plaintiff demurred And now Henden took two Exceptions the first was 1. That the Defendant had not pleaded to all the Closes but that was over-ruled for he justified in the tenements aforesaid of the new Assignment 2. The second was that the Warrant to the Bayliffs was to all and not Conjunctim and Divisim and therfore it should be by all and not by two only To that it was answered and resolved that when a Sheriff makes such a Warrant which is for the Execution of Iustice that may be by any of them for it is Pro bono publico And the very Case was adjudged 45 Eliz between King Hebbs Coke Littleton 181. b. And Iudgment was given for the Defendant Hil. 11 Car. Davies Case Hereford DAvies an Attorney of this Court brought an action upon the case for these words If I list I can prove him Perjured Words And the opinion of the Court was that they were not actionable for there is not any Affirmative that he was perjured but a thing which is Arbitrary and saies not that he would do it Iudgment pro Defend Mich. 7 Car. Rot. 1097. Alston versus Andrew Suff. Pâ—ter Alston Executor of Peter Alston brought an action of Debt upon an Obligation of a hundred and twenty pounds against William Andrew The Obligor and the Obligee make the same person Executor and Edward Andrew and count That the Defendants and one Francis A. became obliged to the Testator c. and that they did not pay it is the said Testator in his life nor to the now Plaintiff and one Francis Andrew Co-executor with the Plaintiff who is summoned and the Plaintiff admits to prosecute alone without the same Francis c. The Defendants demand Oyer of the Obligation which is entred in haec verba and plead that Francis A. in the said Writing named after the making therof made the said Francis Andrew and Barb. A. his Executors and died And that the said Francis A. accepted the Burthen of the Testament And after the said Peter Alston the Testator made his will and Constituted the Plaintiff and the said Francis his Executors and died Et hoc paratus est verificare unde c. wherupon the Plaintiff demur Trugeon and Meron Mich 2 Jac. Rot. 2663. Garret Trugeon Plaintiff against one Anthony Meron and others the Administrators of Benjamin Scrivin upon a single Bill The Defendants demand Oyer of the Bill wherby it appears that one John Simcocks was obliged to the said Trugeon joyntly and severally with the said Scrivin Quibus lectis auditis the Defendants sayd that the said Simcocks died intestate and that the Administration of his Goods was granted to the now Plaintiff who accepted the Burthen of the Administration and Administred the Plaintiff demurred
fee 60 Devise and what said in tail inde 85 Dower barred by Joynture 51 E. ELegit the Sheriff ought to deliver the Moyety by meets and bounds 16 Essoign though the Writ be not returned 28 Essoin upon return of an alias Summons 43 Essoine shall not be allowed in Dower after Issue 69 Error in omission of additions 41 Estate derived from one and shews not how 15 Exâ—cutors to what intents they shall be before probat of the Will 30 Executor the same person made by the Obligor and by the Obligee 128 Execution shall be de bonis testatoris where the Executors breake the Covenants of the Testator 35 Execution shall not be awarded upon Iudgment given in the grand Sessions of Wales 117 Extortion 53 78 Estrayes where they may be fettered 67 F. FIne to two and the Heirs of one to the use of them two and their Heirs 112 Fine de Oct. puris where the Caption was 14. February 135 G. GRant of an Advowson without alledging it to be by Deed 54 Grantee of a Rent-charge takes a Lease of part of the Land and after surrenders it the Rent shall be revived 94 Tenant for life with a Remainder to him in tail expectant and remainder to him in fee 96 Grant a Rent in fee and after had fee by Fine 96 H. HEriot where the Lord shall loose it when the Tenant hath none 4 Habeas Corpus liberty cannot be given to a Prisoner therby 129 Habendum void to parties not named in the Deed 88 Hue and Cry and Debt upon that Statute 125 I. INdempnitas nominis and supersedeas inde 45 Infant where he shall appear by Guardian and where by Prochein amy 92 Inditements for Rape and Buggery 115 Inns how they may be erected or restrained 99 Information against a Subject for Extortion 53 Information where it shall be brought 98 Intermarriage where it is a release of a promise c. before marriage 17 Jurisdiction a Plea therto where part of the land lies in the Cinque Ports 74 Judgment to what day it shall have relation 95 Joynture bars Dower 51 L. A Lord where he may be sworn 87 Lease by Feme in speciall tail 84 Lease by Baron and Feme without reservation of any rent 102 Lease where the acceptance of a new Lease makes a surrender of the former 104 N. NOtice where it shall be upon a promise 80 Nusances 136 O. OUtlawry where it may be pleaded 53 Obligation by the Sheriff where void 52 Office of a Park-keeper is good if the King dispark the Park 86 Obligation to levy a Fine before a day who shall do the first act 48 P. PArdon 79 Parliament what shall be said a Session 61 Pleas severall and by severall Defendants upon joynt Contracts 26 Prescription for a way and no place to which c. issue joyned on the Prescription 10 Prescription to have Herbage 45 Prescription to have Deer in discharge of Tithes 57 Plea as Heir and shews not how 15 Prescription to have Common omni tempore anni without saying quolibet anno 1 Plea of Grant of an Advowson without alledging by Deed 54 Prohibition 22 Prohibition to Chester 59 Q. QVire Impedit c. 31. 36 Quid juris clamat 89 Quod permittat 28 R. REcord shall be good where the conveyance is delivered to be inrolled but is not inrolled 1 Release of land devised before it be vested 60 Rationabile parte bonorum 109 Recovery if the Town be omitted therin the Land doth not passe 106 Record matter of Record tryed per pais 20 Remainder where it shall be said Contingent 118 Rent tendred at the day 13 Rent Assumpsit lies not for it 34 Rescous by the Plaintiff in the first action 98 Request where necessary 2. 73. 106 Return insufficient of a Writ of Quare Impedit 24 S. Statutes What shall be said a Parish Church within the Statute of 43 Eliz. 93 Resolves upon the Statute of 3 H. 7. cap. 2. 2 Resolves upon 35 Eliz. cap. 1. concerning Sectaries 61 Resolves upon 5 Eliz. concerning Aliens 132 Resolves upon the Statutes concerning Souldiers 134 Upon the Statute of Hue and Cry 125 Statute-Merchant without day of payment 42 Statute of Limitations extends not to Arrearages of Rent reserved upon Indenture 109 So De rationable parte bonorum 109 Debt upon a poenall Statute is not gone by the death of the King 82 Sci. fac against a Sheriff to have Execution of monies returned levied by him 32. 11 Sci. fac by Baron and Feme the death of the one shall abate it 37 Sci fac against the Sheriff for taking insufficient Pledges 77 Surrender by Baron and Feme of the Estate of the Feme for life and the King in consideration therof makes a new Lease 7 Suspension of things where they may be revived 94 Supersedeas by the Wife upon an Exigent against Husband and Wife 86 T. TEnder of Rent at the day 13 Tithes and action therupon 121 Tithes of Wood and small tithes 77 Trespass by Baron and Feme for breaking the Close of the Baron and for the Battery of the Wife 59 Tryall where nul tiel vill it pleaded 31 Traverse upon Traverse 96 Traverse of a day 121 Town shall be intended whole Town 74 Traverse of Seisin 123 Tenure by Castleguard is Socage Tenure 91 Tryall of Treason how it shall be 131 Tryall of an action of Account upon receit in two Counties 111 Tryall of matter of Record by the Country 20 Trover and Conversion the Defendant justifie without confession of the Conversion 10 Treason persons attainded therof and set at large how they shall be brought to execution 21 V. VEnire fac from a Towne within a Parish 6 Ven. fac from divers Towns 27 39 Ven. fac where nul tiel vill is pleaded 31 Ven. fac of a Visne from a place known in a Town without making it from the Town 106 View counterpleaded 44 View upon a Quod permittat 28 Usurpation 66 Judgment in Dower upon Voucher 71 W. VVAter increase thereof in Westminster Hall 108 Waifes where they may be fettered and other learning therupon 67 Warrant to four and two only execute it 127 Warranty lineall bind not without Assets 22 Wast in cutting wood to make Cole-mines 19 Wast and inquiry of damages theron 45 Wast how the Writ shall be made where a Lease for life is made the remainder in fee 110 Writs and filing therof 112 WORDS I. S. is in Leicester Gaole for stealing a Horse 2 Welsh words 8 He is a cousening Knave and so I have proved him before my Lord Major for selling of me a Saphire for a Diamond 13 George is a cousening Knave and cousened a poore man of a hundred pounds and all the Georges are Knaves 14 He is a cousening Knave and hath cousened me of forty pounds 14 He is a false Knave and keeps a false Debt-book for he chargeth me with the receit of a peice of Velvet which is false 14 Thou art a pilfering Merchant and hast pilfered away my Goods from my Wife and Children 14 She is a cousening woman and hath cousened one of her Neighbours of four pounds and I will bring good proof of it 14 I doubt not but to see you indited for Sheep stealing 18 Forgery spoken of an Attorny 29 Thou hast forsworn thy self in the Councell before the Marches 34 Thou art a filching fellow and didst filch four pounds from me 34 I charge thee with Felony for taking money out of I. S. pocket and I will prove it 38 I have matter enough against thee for I. S. hath found Forgery against thee and can prove it 41 Forsworn where actionable and where not 44 He is a Bankrupt spoken of one not a Tradesman 45 He is a Bankrupt spoken of a Baker without alledging him to be a common Baker 49 Cousening Knave whether actionable or not 52 I will have him hanged for robbing in the high-way 58 Thou art a Theef and hast stoln my Corn 15 He is as arrant a Knave as any in England 72 I doubt not but to prove that the Plaintiff hath spoken Treason 75 Thou art a common Barretor a Judas a Promoter spoken of an Attorney 104 Thou art a Theef and hast stoln Passions Lamb and marked it and he denied it 110 Thou art a Theef and hast cousened my Cosin Baldwin of his Land 113 I will charge him with flat Felony for stealing my Ropes from of my Shop 113 Thou didst bring Faggots a mile and halfe to burn the Colliers 123 Thou hast made many false Certificates to the Major and Burgesses in that Court 123 Trust him not he is not worth four pence of a Tradesman 125 If I list I can prove him perjured 127 Thou old Witch thou old Whore I will have thee hanged if I can do it 132 I accuse Mr. Justice Hutton of high Treason 131 He is a Witch and an Inchanter and hath bewitched the Children of Strong 13 Errata PAge 1. line 28. for Bormis Inn read Bozuni's Inn p. 3. l. 19. r. grant p. 7 l. 25. blot out by p. 13. l. 2. r Witch p. 22. l. 20. for to the Secondary r. secondarily p. 24. l. 27. r. of p. 28. r. Quod permittat p. 49. l. 8. r. entire l. 24. r. Ignoramus l. 36. r. Lord Hobart the same p. 54. l. 18. the same L. 38. p. 56. l. 42. r. Vicaridge l. 54. r. folk p. 61. l. 9. r. vested p. 65. l. 37. r. Lord Hob. p. 76. l. 38. r. sold p 81. l â—â— r. Justices p. 88. r. Hartopp p. 99. l. 25. r. unwholesome p. 104. l. 35. r. Perpoint l ult r. demised p. 105. l. 23. r. Lessee l. 33. after One add Grants proximam Advocationem to and after l. ult r. admitted p. 107. l. 10. r. founded l. 15. r. trimming p. 109. l. 24 r. objection l. 25. r. Action p. 110. l. 14. r. property l. 19. the Ter-tenant r. and held the said lands l. 37. r. dimisione p 112. l. 10. r. time l. 24. put out which granted p. 214. l. 8. r. agreed l. 35. r. rendred p. 116. l. 5. r. Georges p. 117 l. 24. r. Certiorari p. 119. l. 23. r. her l. 35. r. to p. 130. l. penult r. according
Plaintiff had before brought a Quare impedit against the Defendants for the same Church which Writ was returned and that they did appear to defend it First we must know that this Assise shall be taken only in the Common Bench vide Mag Char cap 13. Assize of Darrein presentment abate by a Quare â—â—pedit then the Arch-bishop making default and the Assise being awarded against him by default if the other Defendants plead to the Assise yet the Assise shall not be presented because an Assise shall not be taken by parcels and therfore a Resummons shall be awarded against the Arch-bishop and the same for the Iury. But the other Defendants pleading their Plea to the Writ the Court was of opinion that it was a good Plea in abatement of the Writ for the Quare impedit is a Writ of a higher nature vide Regist fol 30. That if he against whom an Assise of Darrein presentment is brought brings a Quare impedit the Darrein presentment shall abate And the Statute of West 2. cap 5. saies it may be in the Election of one whether he will have an Assise of Darrein presentment or Quare impedit ergo he cannot have them both And if an Assise of Darrein presentment be brought and after that a Quare impedit for one avoidance the Assise shall abate for the Quare impedit is higher in his nature that is for the right and for the possession And Iustice Warburton vouched 10 Ed 3 Statham in Darrein presentment 3. If a man shall have a Quare impedit and also an Assise of Darrein presentment of one and the same Advowson pending at one and the same time the Darrein presentment shall abate and the Quare impedit shall stand because that it is of an higher nature By Hank and Hill it was urged that the Quare impedit was not depending untill he had appeared and it is not pleaded that he did appear but vide 2 Ed 4. fol that it is depending when it is returned And in a Quare impedit by the Earl of Bedford against the Bishop of Exeter Bedford versus the Bishop of Exeter it was adjudged Pasch 15 Jac. that he could not have two Quare impedits of one Church and for one avoidance And in this Case the whole Court agreed that the plea was good in abatement of the Writ and awarded that the Assise should abate Mich. 14 Jac. Rot. 3297. Shaw versus Taylor Wigorn. Replevin Where the Lord shal lose his Heriot when the Tenant have not any Beasts BRidget Shaw brought a Replevin against George Taylor for the taking of an Horse at Northfield in a place called Little falling the Defendant makes Cognizance as Bayliff to Sir Thomas Gervas because that one Richard Shaw was seised of an House and divers Lands of which the place where c. was parcell in his Demesn as of Fee and them held of the said Sir Thomas Gervas as of his Mannor of Northfield by Fealty and Rent of twenty pounds and rendring and paying after of every Tenant dying therof seised one Heriot and alledged Seisin and that he died seised And that for one Heriot so due and not delivered he distrained in the place in which c. as within the Fee The Plaintiff plead in Bar to the Avowry and takes the whole Tenure by protestation and for Plea saies that the said Richard Shaw at the time of his death had no Beasts wherof a Heriot might or could be rendred upon which the Defendant demurrs And upon the matter it seemed to the Court that if he had not any Beasts than the Lord must lose it for it is a casuall thing if he have it unlesse the Custom or Tenure be to have the best Beast or such a summ And if he had conveyed it away and so prevented him by any fraud then the Statute of 13 Eliz. had provided remedy but where there is nothing of any such thing which may be rendred at the time of the death there the King must lose his right And it was resolved by the Court that the Cognizance was not good for it ought to be certain i. e. for the best or two best Beasts and not generally for one Heroit and not shewing what thing in certain vide 3 Eliz Dyer 199. A Heriot is Quaedam prestatio c. and see there the Plea that there was no Beast at the time of his death And the opinion of the Court was also that the Bar to the Avowry was not good because the Issue is tendred to a thing not alledged for in the Avowry he made not mention of any beast but generally of one Heriot which is not certain And therfore it was awarded that the Plaintiff should recover and should have a return c. and Damages Pasch 14 Jac. Rot. 907. Norris versus Stapes Goldsborough Berk. RObert Norris and Thomas Trussells Wardenâ— and the Society of Weavers in the Burrough of Newbury Deâ— 1. By lawes in the County of Berkshire brought an Action of Debt for five pounds against John Stapes and Count that Queen Eliz. by her Letters Patents 14. of Octob An 44. at the request of the Inhabitants there using the Art of Weaving and to the intent that Corruption therin might be taken away and avoided c. did grant to all Weavers within the said Town to be a Body Politick by the name of the Wardens and Society c as before and to have perpetuall succession power to purchase to plead and to be impleaded And also power to make Laws and Ordinances agreeable to reason and not in any wise contrary and repugnant to the Laws and Statutes of the Realm for the well Government of the Society Apprentices and Servants and all using the Trade of weaving or selling of any thing therto belonging within the same Burrough and power to inflict punishment by Imprisonment Fine or Amercement upon the Offenders And granted further that the said Wardens and Society shall have the survey of those Lawes and the benefit of the Forfeitures And that no other person born within or without the said Burrough shal exercise the Art of weaving within the said Burrough if he shall not be admitted therto by the Wardens and Society And they recite the Act of 19 H 7. cap 7. of not putting of any Law or Ordinance in execution before it shall be allowed by the Lord Chancellor Treasurer and two chief Iustices or three of them or before both the Iustices of Assise in their Circuits upon pain of forfeiting forty pounds And shew that one Cuthbert Goodwin and John Hame Wardens of the said Society with the greater part of the said Society 1. Maij 45 Eliz. at the Guildhall within the said Burrough made divers Lawes and Ordinances for the Government of Weavers and that the 18 Novemb. 1 Jac. the said Orders were confirmed by the Lord Chancellor Lord Treasurer and Lord Anderson one of the chief Iustices among which one
before the return because it is another Action and the Sheriff might have paid it to the Plaintiff though he return that he had the money ready to be delivered to him for if he had after that paid it to the Plaintiff that was good satisfaction and he might as well pay it after he had levied it and before the return as he might pay it after the return and then Nil debet is a good Plea But it was objected that by the return 15 Mich. that he had the money ready and that after the acquittance his return should conclude him And it was said that it would not for it is in another Action and stands therwith 22 E 4.38 One vouched as Heir may be bound to Warranty by his Father and if he bring an Assise De morte Antecestoris and the Tenant plead Bastardy it is no Estoppell that the Defendant vouched him as Heir before The Acquittance or Release is good before the return and not like unto Hoes Case of Bail Coke lib 5.71 or 5 Eliz Dyer 217. Release of Actions and Suits will not release a Covenant before it be broken Object That the Acquittance or Release is pleaded only by recitall Res To this it was answered that he had paid the two hundred and fifty pound seventeen shillings eight peace which the Plaintiff had accepted and the Plaintiff by Demurrer had confessed the Deed and all that is contained therin then it appears that he is satisfied and that the release in matter as it is recited shall be an Estoppell vide 46 Eliz. 13. But it seemed that it is no Estoppell by the reciting in the Release that which is in possession but that afterward he might well say that he was not in possession at the time of the Release and all the Court agreed that the Acquittance or Release and receit of the money is a good Bar as to two hundred and fifteen pounds seventeen shillings eight pence and so it was adjudged But whether an Action of Debt lies against the Sheriff upon this return is questionable yet that it is not any Contract Account or Loane upon which three properly an Action of Debt lies as it is said M. 18. E. 4.23 and 41. E. 3.10 and 42 E. 3.9 When money is delivered to be delivered over that no Debt lies if it be not delivered over but Account vide 34 H. 6. 36. a. 9 E 4.50 And the Court inclined that in this Case Debt lies for it is a generall Contract In Dowses Case the Sheriff levy part and do not return it but the party pay it Debt lies against the Sheriff And if money be delivered to buy Land if he buy it not Debt lies or Account Mich. 15 Jac. Rot. 636. Stone versus Roberts STone brought an Action upon the Case against Roberts for these words The Plaintiff is a Witty and an Inchaunter Case and hath bewitched the Children of one Strong And Iudgment for the Plaintiff Words For though Witch is a word of malice and familiarly used to old poor women and therfore no Action lies yet here it is coupled with a Deed by which the Plaintiff is drawn in danger of his life by the Statute of 1 Jac. Hil. 15 Jac. Rot. 710. Crawley versus Kingswell RIchard Crawley Plaintiff in Roplevin against Richard Kingswell Replevin for taking of one Cow at C. the Defendant makes Conuzance for ten pounds Rent-service come Bayliff to his Father the Plaintiff confesse the Tenure but alledge that at our Lady day which was one day of payment he was upon parcell of the Land Rent tendered at the day and there was ready and offered to pay it and remained there till after the setting of the Sun The Defendant replyed and protestando that he made no such tender for plea saith that after that and before the Distresse viz. such a day he at this Close demanded the Rent and none came there to tender or pay it for which he did distrain and praies a return c. and avers that the Plaintiff nor any other neither at the time of the distresse nor at any time after offered to pay the Rent wherupon the Plaintiff demurred and it being argued by Hendon and John Moore it was adjudged by the whole Court that the Defendant shall have a return And a diversity was taken between this and Homage where one makes a tender to the party and he refuse there he cannot distrain because it is a personall thing which cannot be performed as payment of a Rent may by another hand vide Litt. fol 35.21 E 4.17.7 E 4.4.20 H. 6.13 Also it was agreed that the tender there by the Tenant at the day is not materiall but if he had tendred it when the Distresse was taken the taking should be tortious 30 Ass 38. vide 22 H 6.36 37.21 E 4. b. 45 E. 3.9 vide Litt. 7. fol 28. Demand necessary only for a Penalty 26 Eliz. Certain Cases vouched in an Action for words GIttings Plaintiff in the Exchequer against Redserve Gittings is a cousening Knave and so I have proved him before my Lord Mayor for selling me a Saphire for a Diamond the Action does not lye And by Manwood if A. saies of B. Thou art a cousening Knave and hast cousened me of five hundred pounds no Action lies which the Court agreed Banco Regis 30 Eliz. George versus Whitlock HE is a cousening Knave and consened a poor man of a hundred pounds and all the Georges are cousening Knaves no action lies Hil. 30 Eliz B. R. Walcot Plaintiff versus Hind HE is a cousening Knave and hath cousened me of forty pounds adjudged no action lies And upon Error brought in the Exchequer Iudgment was affirmed and it is said that our Law takes no notice what a Cousener is Trin. 37 Eliz. Brookes Case HE is a false Knave and keeps a false Debt Book for he chargeth me with the receit of one peece of Velvet which is false not actionable Mich. 37 and 38 Eliz. Charter versus Hunter THou art a Pilfring Merchant and hast Pilfred away my Goods from my Wife and my Children not actionable A Butcher and his Wife brought an action upon the Case against B. and his Wife and shew that the Plaintiff used the Trade of a Butcher and that his Wife in his absence sold and delivered flesh and the words were that the Wife of the Plaintiff is a cousening woman and hath cousened one of her Neighbours of four pounds And it was alledged over that she the Defendant would bring good proof of it and adjudged that an action lies not Trin. 13 Jac. Rot. 650. Heard versus Baskerfield Brownlâ—wâ— Devon WIlliam Heard Plaintiff Replevin against Richard Baskerfield in Replevin for taking two Cowes at Brood the Defendant makes Conuzance as Bayliff to John Dinham Esquire and shows that Walter de la Therne was seised in Fee of twenty acres of Land wherof c. And by his Deed shewn in
that the Plea is not good Harris argued for the Defendant for three reasons 1. Because by the Lease this was included vide 21 H 6. 61. grant of Conuzance c. gives power to make a Steward tempore E. 1. Fitz. 41. 2 E. 2. Bar 237. grant to fish in a Pond yet he cannot make a Trench 2. The Coles are the Inheritance and the bettering of them is the bettering of the Inheritance 3. For the profit of the Common-wealth 14 H 8. 18. 20 Eliz Dyer 361. Altams case Trench to make a Meadow the better is no wast vide 22 H 6. 6. digging of certain Loads of Gravell for the amending of the Land vide 12 H 4 5. And for telling this ought not to be answered any other way then by justifying of the Imployment and the Plaintiff may reply upon the sale if he will and the case is long debated 5 E 4. 10. vide Dyer 37. Malenders case And the last day of this Term the Lord Hobart declared that we were all of opinion that the Plea is not good for there though the Lease be of Mines and by vertue therof the Lessee might open new Mines as in Sanders case Coke lib 5. fol. 12. there it shall be intended of new Mines which in themselves is wast if it had not been by speciall words And the digging of a Mine is an impairing of the Inheritance and a great benefit to the Lesses and therfore if Lessee for years build a new house if he cut Trees off the same Lands for the making therof it is wast 17 E 2. Fit wast 118. And no more then one may make a Brick Kilne and burn Brick or a Lyme Kilne and burn Lyme with wood growing upon the ground and sell the Brick or Lyme no more may the Defendants in this case cut down wood for the making and supporting of these Mines for Coles which they sell vide 41 E 3. 17. And so Iudgment was given for the Plaintiff Edmonds Case MEmorand That at the Assises holden at Winchester in Lent 15 Jac. one William Edmonds was indicted of Burglary because that he Burglariter and feloniously did break the house of one Richard Heydon in the night at Ramsey Burglary and the Iury gave a speciall Verdict We find that Richard Heydon and Christian his Wife were both in Bed and at rest in an upper Chamber in the Mansion house of the said Richard Heydon and that the said William Edmonds then was and yet is the Servant and Apprentice of the said Richard and that he then lay in another Chamber of the said house remote from the Bed-chamber of his said Master and Dame and that there was a Door with a Latch at the Stairs foot of the said Bed-chamber of the said Heydon but none at the Stair-head being the entrance into the said Bed-chamber of the said Heyedon We find that the said William at the said time in the Indictment drew the Latch of the Stair-foot door and opened the said door being then latched and went up the Stairs and entred into the Bed-chamber of his said Master with an intent to murther the said Heydon and that he did then and there with an Hatchet with an intent to murther his said Master strike and grievously wound him and gave him fifteen wounds on the head and other parts of his body And if upon the whole matter c. And this speciall Verdict was shewn by the Lord chief Baron Tanfield unto all the Iudges of Serjeants Inne in Chancery Lane viz. Iustice Warburton Crook Baron Bromely Iustice Dodderidge Houghton Winch and Hutton And they all besides Winch which doubted agreed that it was Burglary and afterwards in the same Term at a meeting in Serjeants Inne in Fleetstreet it was shewn to Mountague Hobart and Denham which concurred Mich 16 Jac. Staffords Case FAlse Imprisonment was brought by Sir John Stafford the Defendant justifie Matter of Record tryed by the Country that Bristoll is an ancient City and that time wherof memory c. there hath been a Court holden there before the Sheriffs c. and justifie that there was a Plaint levied and Iudgment and that the now Plaintiff was taken in execution The Plaintiff replyed Quod non fuit aliqua querela levata according to the custom and requires this Quod inquiratur c. And it was tryed at Bristoll and found for the Plaintiff and damages twenty six pounds And it was moved in Arrest of Iudgment that this being matter of Record viz. the entry of the Plaint in a Court of Record it shall be tryed by the Record and not by the Country And it was adjudged that the tryall was good because that it is not meerly Record but whether it was according to the Custom And Non prosecutus est ullum breve is tryable by the Country Quaere if the King grant by Patent to hold plea under forty shillings if it be a Court of Record Sir Walter Rawleys Case MEmorand that on Friday the 23. of October upon conference between all the Iustices of England whether a privy Seal was sufficient it being directed to the Iustices of the Kings Bench to command them to award execution against Sir Walter Rawley which was attainted of Treason at Winchester Mich. 1 Jacobi How Prisoners which are attainted of Treason set at large shall be brought to execution before Commissioners of Oyer and Terminer or how they should proceed before execution be awarded It was resolved by all that he ought to be brought to Bar by Habeas Corpus to the Lieutenant of the Tower and then demanded if he could say any thing why execution should not be awarded for the proceedings against him being before Commissioners they are delivered only into the Court of Kings bench or they might have remained in a Bag or a Chest and no Roll made therof and so long time passing it is not a Legall course that he should be commanded by a privy Seal or great Seal to be executed without being demanded what he hath to say for he might have a pardon or he might say that he is not the same person As if one be Outlawed of Felony and taken he shall not be presently hanged but he shall be brought to Bar and so demanded c. And upon this resolution a privy Seal came to the Iustices of the Kings Bench commanding them to proceed against him according to Law And therupon a Habeas Corpus was awarded and Octob 28. he came to the Bar being brought by the Lievtenant and there he was demanded of whether he had any thing to say why c. and there he shewed that the King had imployed him as Generall of a Voyage and hath given him power De vita membris upon others And whether this did amount to a pardon or no he knew not The Attorney-generall said that the King pardoned no Treasons by any Implication but it ought to be by speciall words Then he said
profits have accrued to them or any of them by the making of Allome since the making of the said Indenture wherupon the Plaintiff demur 1. And Iudgment was given for the Plaintiff for it is one good Grant of an Annuity to charge their persons And so of a Grant of an Annuity to be paid out of such Coffers or Bags vide 9 H. 6. Margery Parkers case vide 22 H. 6. 12. 2. Also the limitation is to perceive of the clear gaines and plead it by the Counter-part of the Indenture and that ought not to be but they should have demanded Oyer of the Deed and then either demur or plead that the same Deed was granted over c. 3. It is not averred that no other person received or made any clear gain but only that the Defendant made no clear gain Burglary MEmorand At the Assises holden at Winchester in the last Circuite before the Lord chief Baron Tanfield it being the third Circuite which I went with him It was a question whether one which had a Shop in the dwelling house of another and he which had the Shop work'd therin in the day but never lodged there and yet he had a house out of the Shop to the Street if this Shop be broken in the night and divers Goods stoln out therof if it be Burglary Burglary And the Lord chief Baron and I resolved that it was no Burglary because that by the severance therof by Lease to him which had it as a Shop and his not inhabiting therin it was not any Mansion house or dwelling house ergo no Burglary but ordinary Felony Mich. 15 Jac. Adavis versus Flemming Case AN action of the Case was brought for these words Thou hast forsworn thy self before the Councell in the Marches innuendo in the Marches of Wales in a Suit which I have there and I will sue thee for Perjury Words And after issue of Not guilty pleaded and Verdict for the Plaintiff It was moved in Arrest of Iudgment by Chibborn that the Common Law takes no notice of any such Councels and they are to meddle according to instructions and if it be not warranted therby then no Oath wherupon any remedy And therfore it was adjudged that if one say another is forsworn or perjured in Canterbury Court no action lies for we cannot take any notice of any Court in Canterbury which hath power to administer an Oath But Serjeant Harris said that this Councell of the Marches is established by 27 H 8 cap 32. and have power to examine Witnesses and to administer an Oath and is also mentioned in the Statute 5 Eliz. that Perjury committed before the Councellors of the Marches shall be punished by this Statute And the Court was of opinion that the action well lies for the Councell of Marches without innuendo is sufficient for there is no other Councell of Marches And as the Court take notice of the Court of requests for if one saies another is perjured there it is actionable so of this Court which is established by Statute and concern the King and therof the Iudges ought to take notice Iudgment for the Plaintiff And by Lord Hobart if one saies another is forsworn in the Common place an action lies Mich. 17 Jac. Bayshaw versus Walker Case AN action of the case was brought for saying Thou art a filtching Fellow and didst filtch four pounds from me And after Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words were not actionable And so the Court resolved for the word siltching is dubious and may be by Cousenage by shifting by deceit and is not Felony but by Implication and it is not good to enlarge actions for words Plaintiff Nil capiat per breve Green versus Harrington Case Assumpsit lies not for Rent PEter Green brought an action upon the case against Thomas Harrington and counts that wheras the Defendant such a day was indebted to him in ten pounds for the rent of one House and land which he had demised to him for one year then past the Defendant promised to pay it upon request and upon issue Non Assumpsit it was found for the Plaintiff and moved in Arrest of Iudgment by Chibborn that no action lies upon this promise because it is Debt for the rent for Land and the Assumpsit is of a lesse nature as if one he indebted upon an Obligation and that being forfeited he promised to pay it no action lies for the Debt is due upon the Obligation Albanies case And the opinion of the Court accorded This was ruled in Albanies case of Lincolnâ— Inne in Banco Regis Trin. 17 Jac. Rot. 1849. Castilion versus Smith AN action of Covenant was brought by Sir Edward Castilion against Thomas Smith as Executor Covenant Iudment against Executors for Covenant broken by them shall be De bonis testatoris Iohnson and Barker a breach assigned by act done by the Executors and after Verdict it was moved if Iudgment should be De bonis propriis by reason the breach was made by the Executors And it was resolved that it should be de bonis testatoris And where the Writ is in the Detinet only there the Iudgment shall be de bonis testatoris vide the like Iudgment Hil. 33 Eliz. Rot 1143. between Johnson and Barker Pies Case PIe exhibited an Information upon the Statute of the 35 of Eliz. for converting of a house in London into many dwelling houses and upon Not guilty pleaded the Defendant is found guilty But be cause the said Statute is discontinued by the 43 Eliz Costs against an Informer and there is now no such Statute the Court upon motion in Arrest of Iudgment award that the Defendant eat inde sine die And whether the Defendant in this case shall have costs upon the Statute of 18 Eliz. cap. 5. was the question The words of the Statute are if any Informer willingly delay his Suit or discontinue or be non-suited or shall have the matter or the tryall passe against him by Verdict or Iudgment in Law he shal pay costs 1. Object It was objected that this Statute doth not extend but only to penall Statutes which then were in Esse Answ To which it was answered by the Court that this Statute was a perpetuall direction to all Informers 2. Object It was objected that if there be no Statute then there is no Informer 3. Object In this case Verdict is sound for the Informer and he may be presumed to be ignorant And there is no reason that he shall pay costs for default of his Councell 4. Object There is no Iudgment against him but that the Defendant eat inde sine die and that is no other then an exception in stay of Iudgment Keldridges case And a President was cited by Henden 25 Eliz. Banco Regis there upon an Information against Keldridge and another upon the Statute of 35 H. 8. for not
to the charges But to offer any particular summ is not necessary because they know not what summ is disbursed and that is to be assessed by the Commissioners And the words for the charge of the Commission is to be extended to all charges arising in suing forth the Commission and in execution and defence therof Also it was resolved that at any time before the distribution made they may come and pray to be joyned But after the four months passed and any distribution made though it be but of part then they come too late For by this means the distribution which is made and wherby some of the Creditors shall receive more shall be utterly avoided and another proportion made which was not the intent of the Statute Pasch 18 Jac. Mason versus Thompson Case AN action upon the case was brought for these words I charge thee with Felony for taking money forth from Iohn Spaci's Pocket and I will prove it Words Henden moved in Arrest of Iudgment that these words were not actionable First because that it is not any direct affirmative that he is a Felon and for that he vouched a case as he said adjudged in the Kings Bench Masters bear Witnesse that he is a Theef The second reason was because that the matter subsequent do not contains matter which must of necessity be Felony but stands indifferent For if it be not privily and secretly it is not Felony and it may be by way of sport or trespasse For as one said That he is a Theef and stole his Timber it is not actionable for it might be Timber cut or Timber growing so to say That he stole his Corn or his Apples or his Hope For in Mitiorem partem verba sunt accipienda And it seemed to the Lord Hobart that the first words viz. I charge thee with Felony are actionable for the Constable if he be there present ought to apprehend him therupon and it is a plain Affirmative I arrest thee of high Treason Iustice Winch prima facie held that the words were actionable and not qualified by the subsequent words as it should be if he had said For thou hast stoln my Apple Trees standing in my Orchard that could not be Felony but it is not so there for it may be Felony and ex causa dicendi it shall be taken Felony in these words for taking money c. Warburton and Hutton was of opinion that the Action lay not This Case was moved in Mich. 18 Jac. And then the opinion of the Court praeter Warburton qui haesitavit was that the Action did not lye Ideo memorand quod quetens nil capiat per breve Trin. 18 Jac. Hall versus Woollen JOhn Hall an Attorney of this Court Case Consideration of an Asâ—urâ—p sit brought an action upon the case against Woollen and declared that wheras the Defendant was possessed of an House and Land in Mekon Mowbray in the County of Leicester for one term of the Lease of Sir John Woodward And wheras one Webb was in communication of buying the said Lease of Woollen and Woollen could not sell it without the assent of Sir John W. The Defendant in consideration that the Plaintiff would procure licence of the said Sir John he promised to pay to him so much as he should disburse and deserve therfore And averred that he did procure a License and delivered it to the Defendant and disbursed such a summ and deserved for his labour such a summ and the Defendant upon the Count did demur And the question was whether that were a good consideration or no for it did not appear that there was any condition to restrain him from making an Assignment and if I promise that wheras I am obliged to A. if you will procure B. which is a stranger to make a Release therof to me I will pay you forty pounds though it be done at my instance no action lies for it is apparant that B. could not release the Obligation But it was adjudged that is a good consideration for it appears that there was privity between them and it may be that he had promised that he would not assign it without his licence And in good discretion it was convenient to have it also it was at his instance and for his satisfaction And it hath been adjudged if one promise forty pounds to another if he can procure the assent of the Mother of a woman though he may do it without such consent yet it is a good consideration Mich. 18 Jac. Clerk versus Wood. CLerk brought an action upon the case against one Wood Case alias Warren and count that he was seised of an house and twenty acres of land c in Thursfield and that he and all those whose Estate he hath have had a Common in seven acres in Thursfield And that he and all those c. have had one way leading through the said seven acres Ven. fac upon prescription for a way in divers Townâ— and from thence into one Common way leading to Buntingford and from Buntingford to Blakeley And that the Defendant had plowed and turned up the seven acres and estopped the way The Defendant pleaded not guilty and the Venire facias awarded de Tursfield And it was moved in Arrest of Iudgment by Serjeant Jones that it ought to be from all the Towns through which he claim his way for he ought to prove it in evidence viz. that he had a way or otherwise he is not endamnified But it was resolved that the tryall was good for Not guilty is properly a deniall of trespasse and disturbance and though he ought to prove title to the way yet it is sufficient if he prove title to the way by and through the seven acres upon evidence And yet if the Prescription had been traversed then he ought to prove all the way any the tryall shall be from every Town through which the way is pleaded to be extended quod vide 10 E. 4. fol. 10. where it was in two Counties and the Venire facias shall be from both and the tryall shall not be by Nisi prius vide the case between Reyner and Waterhouse supra Mich. 16 Jac. Rot. 2344. Lamb versus Thompson Debt A Condition not to be assisting to another hinders him not to bring a Writ of Error joyntly with him EDmund Lamb brought an action of Debt against Richard Thompson upon an Obligation of forty pounds the Condition whereof was If the Defendant shall not be assisting or any waies aiding unto Thomas Elme or any other person for the said Thomas Elme in any Actions Suits Vexations c. to be commenced and prosecuted against the said Plaintiff c. That then c. the Defendant pleaded Negative The Plaintiff reply that he such a day brought Trespasse against the said Thomas Elme and the now Defendant and had Iudgment and that the Defendant joyned with him in a Writ of Error in hinderance of the
Defendant brought a Writ of Error in the Exchequer Chamber upon a new Statute and after divers terms Hall died and after the Plaintiff was non-suited without mention made of his death Tadcaster brought two Scire facias against Hobs and upon two Nihils had Iudgment Hobs brought an Audita Querela alledging the death of Hallowell before Scire facias and before Capias and it was adjudged that the Audita Querela well say and Hil 4 Jac Rot 975. between Timberley and Calverly Scire facias brought against the Bail and he pleaded that the Principall died before Capias returned against him And Iudgment upon argument given against the Plaintiff The like Iudgment between Iustice Williams and the Sureties of one Vaughan Hil. 19 Jac. Rot. 312. or 3125. Walrond versus Hill London Debt WAlrond brought an action of debt upon an Obligation of three hundred pounds against William Hill with Condition that if Thomas Harris and Elizabeth his Wife One bound to levy a Fine before such a day who shall do the first act before the end of Easter Term next shall levy a Fine before the Iustices of the Common Pleas by due course of Law to the use of the Plaintiff that then c. the Defendant pleaded that before the end of the said Easter Term the Plaintiff did not purchase any Writ of Covenant pro fine leuand wherupon a Fine might be levied according to the course of Law The Plaintiff replyed that the fifteenth of April the said Thomas for money enfeoffed another of parcel of the Land that was to be conveyed by the Fine And that the said Thomas and Elizabeth his Wife have not any Estate or Interest in the said parcell so conveyed wherof they may levy a Fine And upon this Replication the Defendant demurred And upon argument at Bar by Serjeant Harvey for the Plaintiff and Serjeant Henden for the Defendant the first question was If the Bar be good Intant que le Defendent est oblige That Thomas Harris and Elizabeth his Wife shall levy a Fine he ought to procure that to be done at his perill semble al 4 H. 7. 3 H. 6. Condition that John S. a stranger shall take Alice D. to his Wife before Mich. If I. S. refuse the Obligation is forfeited And therfore it was urged that he ought to procure a Writ of Covenant at his perill But the Lord Hobart held that the Plaintiff ought to procure the Writ of Covenant to have made himself capable of the Fine And he put this case if I. S. be obliged that I. D. shall enfeoff I.N. the Obligee such a day I. N. ought to be upon the Land or ought to make a Letter of Attorney to receive the Livery or otherwise the Obligation is not forfeited And when a Covenant is to levy a Fine he which is to do the first act c. vide Palmers case Coke lib 5. fol 127. 4 E. 3. 39. 18 E. 3. 27. 11 H. 4 18. 21 E 4. 2. The second question was whether this Obligation be ferfeited being that the said Thomas Harris had made a Bargain and Sale of part of the Land to another before so that he was disabled at the time to levy a Fine And we all agreed that the Condition was impossible and is all one as if he had disabled himself afterwards as in Maynes case Coke lib 5. 21. where the Covenant was to make a new Lease upon surrender of the former Lease there if he which ought to make the new Lease disables himself to make a new Lease and to accept of the Surrender by granting the Reversion for years he ought not to do the first act viz. Surrender but the Covenant is broken And in this case it is all one as if one who had granted the Reversion for years or for life Covenant that he upon Surrender will make a new Lease he had broken this Covenant being disabled at the time And it was said and agreed by the Court that the Fine to be levied ought to be an effectuall Fine which might operate to convey the Land according to the Covenant Burnell and Brook One case was vouched in this case to be between Burnell and Brook where the Condition was that he should acknowledge a Iudgment and a good Bar that the Plaintiff had not purchased an Originall Writ for he ought to make himself capable of Iudgment acknowledged to him vide 34 E. 1. Fitz Debt 164. A Condition that if he present the Obligee to a Benefice that then c. Though the Obliges taken Wife by which he is disabled to take it put he ought to present and offer him to the Ordinary to refuse him Vide 28 E 4. 6. where parcell of the Land was recovered yet Debt lies for entry Damages recovered in a Court of ancient Demeasn which case was then vouched but it is not much to the purpose And afterwards we all agreed that the Plaintiff should have Iudgment Hord versus Cordery A President was shewn which was thus IN the County of Wiltes Richard Hord Clerk Vicar of Chute Case brought an action upon the Case against William Cordery and Bridget his Wife and Dorothy Cox Conspiracy for one malicious confederacy of charging the Plaintiff with the felonious Raye of the said Dorothy Cox and procured him to be examined before Sir Anthony Hungerford a Iustice of Peace and therupon was bound in a Recognizance to appear at the next generall Sessions of the Peace at Devises and from thence was bound over to the Assises And there the Defendants An 15 Jac before Sir Thomas Flemming and Tanfield Iustices of Assise preferred one Bill of Indictment of their malice aforesaid and by the procurement of the said William and B. the said Dorothy shewed to the grand Inquest whether it were true or false And the Iury perceiving the malice and the falsiâ—y did not find it to be true and gave their Verdict by Ignorance Vpon Not guilty pleaded by William and Bridget and non informatus by Dorothy the Iury found for the Plaintiff and after a Writ of Error An 15 Jac and 20 marks costs for the delay Ego vidi recordum est bien pleivement aver que il ne ravish le feme est ent Hil. 10 Jac. Rot. 92. 1. 1. Trin. 20 Jac. Hawkins versus Cutts HAwkins brought an action upon the case against Cutts Case and declared that he was of good Fame c. and for the space of eight years last past had used the Art and Mystery of a Baker Pandopatoritae and had gained his living by buying and selling the Defendant said of him He is a Bankrupt Knave And not guilty Words it was found for the Plaintiff And in Arrest of Iudgment it was moved that it is not shewn that he was a common Baker neither had used the Trade but used the Art and Mystery of a Baker And there is as Serjeant Hobart said as much skill
and art used by Bakers of Bread in private mens houses as by common Bakers And every â—ooman which bake in private if she be a good Housewife use the art and mystery of a Baker And if a man had said generally that he had gained his living by buying and selling and not shewn what Trade he had used it is not good Therfore the Trade ought to be alledged and so sufficiently that the Court may judge him such a person as is within the Statute of Bankrupts Also Winch said that it is not alledged that he gained his living by buying and selling any thing which concerne his Trade And I was of the same opinion and relyed upon the case of 11 H. 4. 45. An nation upon the case against an Inn. keeper and shewed that he was lodged there and his Horse was stoln And the Defendant pleaded a plea that he delivered to him the Key of the Stable c. And by the Court the Writ shall abate because he did not shew that he was a common Hostler And therfore Iudgment arrested And the Court agreed that if the Count were good the words would maintain an action for a Baker is a Trade mentioned in the Statute 5 Eliz. but it ought to be a Common Baker Trin. 20 Jac. Whiteguift versus Eldersham Second deliverance JOhn Whiteguift brought a Writ of second deliverance against Richard Eldersham for taking of his Cattle at Clanding in quodam loco vocat Corles Paud. The Defendant makes Conuzance as Bayliff to Sir Francis Barrington because that the place c. was parcell of the Mannor of Curles and that John Curles was seised before the time Avowry c. therof and held it of Sir Francis Berrington as of his Mannor of Clanding by Knights servies viz. by Homage Fealty survitium scuti and by the Rent of ten pounds payable yearly at two Feasts of which Rent the said Sir Francis was seised by the hands of the said John Whiteguift as by the hands of his very Tenant in his Demsn as of sea and Avow put Homage infect wherupon the Plaintiff demur And shew for cause that the Defendant had not shewn any Title to have Homage of the said John and that the Cognizance is repugnant and no sufficient Seisin alledged of the Services and that the shewing of the Seisin is not formall vide Bevils case Coke lib 4. fol 6. Seisin of Rent is the Seisin of the Services and he might have traversed the Tenure and the other party ought to shew whether he had done Homage before vide 44 E. 3. 41. when an Avowry is upon the Baron for the Homage of the Feme it is sufficient Avowry without shewing that he had Issue by her and yet if he had not Issue he could not avow upon the Baron but that ought to come on the other party vide 5 E. 2. Fitz. Avowry 209. A man avow for Homage and alledge Seisin of Esenage without Homage and good And after upon motion this Term Iudgment was entred for the Defendant Trin. 20 Jac. Sherwells Case MAry Sherwell brought a Writ of Dower Dower and in But therto it was pleaded that the Father of the Husband of the Demandant was seised of one house and sixty acres of Land in Fire and made a Feoffment to the use of himself for life and after to the use of the Husband and the said Mary for their lives Joynture which bars Dower for the Ioynture of the said Mary the remainder to their Heirs And that afterward the Father died in the life of the Husband and aftre the Husband died And adjudged that this is no Ioynture to bar Dower according to the opinion in Varnons Case because that the Estate of the Wife at the Commencement take not effect immediatly after the death of the Husband Et quod abinitio non valet tractu temporis non convalefeit And if a Feoffment to the use of the Baron for life the remainder to I. S. for years remainder to the Feme for her Ioynture this is not a Ioynture he bar Dower Trin. 20 Jac. Francis Curle versus James Cookes AN action of the case was brought and Count Case that the King by his Letters Patents An 12 Jac. reciting the Statute of 31 H. 8. for erecting of the Court of Wards and the Officers therof and that two persons shall be named by the King and his Successors who shall be Auditors of the Land of the Kings Wards And reciting the Statute of 33 H. 8. for the making of the Master of the Wards and Liveries and his power had made him the Plaintiff one of his Auditors and granted to him the Fees due and accustomed to be had and 40. Marks fee and gave power to him as one of his Auditors according to the said Statute and to exercise it with the Fees in as ample a manner as others had used And averred that at the time of the Patent made and at all times after the erection of the said Court the Auditors had engrossed all the Accounts of the Feodaries and that they had taken therfore two shillings and shewed that he was sworn and exercised that Office and shewed the Oath specially and that he had by vertue therof ingrossed divers Accounts of the Feddaries and had taken therfore two shillings and that the Defendant having conference with the Plaintiff concerning his Office and his bone gesture therin said to him You have received money for ingrosement of Feodaries innuendo the said Fees for ingrosement of the Accounts of the Receivers Feodaries and other Officers aforesaid which I will prove is Cousenage And then and there spoke further You are a Couseâ—er innuendo the said Francis decepisse Dominum Regem 8. subditor in executione officii praedicti and you live by Cousenage deceptionem dicti Domini Regis subditorum shorum in executione officii ful Non Culp verdict pro Plaintiff and Damages thirty three pounds It was moved in Arrest of Iudgment by Attho that first it is alledged that the Fee of two shillings is lawfull and that he said You have received monies for ingrossement of Feodaries which I will prove is Cousenage innuendo the Fees aforesaid which are lawfull and then by his own shewing it is not Cousenage 2. It is insensible Ingrossements of Feodaries for they cannot be ingrossed but their Accounts 3. That Ad tunc ibidem for the other words are for other words spoken at another time of the same day and they are not actionable for they do not relate to his Office Also the words will not maintain action for the word Cousenage is generall and of an ambiguous interpretation and therfore no action lies for that And he resembled it to Sir Edmund Stanhops case He hath but one Mannor and hath got it by swearing and forswearing Midlemore and Warlow And to the Case of Midlemore and Warlow An. 30 Eliz. Thou art a cousening Knave and hast cousened me
3 H 6. 14. 32. there it is well argued and the better opinion that it is only by argument And a man outlawed may make an Executor and this Executor may have a Writ of Error to reverse the Outlawry And therupon and upon the view of the Record in Woolleys case the Court gave Iudgment that it is no plea. Lightfoot versus Brightman Covenant LIghtfoot brought on action of Covenant against Brightman and count that the Defendant being possessed of an Advowson in grosse for tearm of years covenanted that he would not grant nor assign his Interest to any Grant of an Advowson pleaded without alledging to be by deed good if the issue be taken upon collaterall matter without offer therof first to the Plaintiff and that he should have it fifty pounds better cheap then any other and alledge breach of the Covenant that he granted the said Advowson and his tearm therin over without offering it to the Plaintiff and Issue joyned upon non concessit and found by Verdict quod concessit and damages fifty pounds And it was moved in Arrest of Iudgment that it is not alledged that the Grant upon which the Issue is joyned was by Deed and then no breach assigned I at the first was of opinion that the Iudgment should stay but after upon advisement I concurred with Serjeant Hobart and Iustice Winch that it was averred by the Verdict for now it being a perfect Grant it shall be intended that upon the Evidence a Deed was shewn as upon Issue joyned upon Grant of a Reversion where it is not alledged that it was by Deed or that the Tenant atturned yet if it be found it shall be good And so in Avowry for a Rent-charge where the Grant therof is pleaded not by Deed and Issue is joyned fur concessit and found quod concessit that is good by the Verdict like to Nichols case Coke lib 5. Debt upon a Bill payment pleaded and Issue found for the Plaintiff he had Iudgment But it seems if it had been found for the Defendant the Plaintiff shall have Iudgment for the Bar confesse the action as in the 9 H. 6. Debt upon an Obligation the Defendant plead that he delivered it to the Plaintiff to be his Deed when certain Conditions were performed And he pleaded that the Conditions were not performed if it be found accordingly yet the Plaintiff shall have Iudgment Coke lib 2. fol 61. Wiscots case a Lease by Baron and Feme which ought to be by Deed pleaded generally and found the Plaintiff had Iudgment vide Smith and Stâ—plâ—tons case Mich. 20 Jac. Chittle versus Sammon CHittle against Sammon in Replevin Replevin Avowry for Rent granted to the Father in see without alledging that it was arreare after the death of the Father Counsance for Rent as Bayliff to Sir John Reves upon a Grant out of the Land wherof the place in which c. was parcell upon a Grant made to the Father of Sir John and for Rent arrear c. Issue was joyned upon this point if the place was parcell of the Land out of which the Rent was granted and found by Verdict that it was And now moved by Attho in Arrest of Iudgment that it is not alledged that this Rent was arrear after the death of the Father as it ought to be and therfore it may be intended that this Rent was arrear in the life of the Father But the Court agreed and resolved that it was good after Verdict for now it is pleaded that it was arrear and not paid to him Ergo it was due to him and though it might have been more fully pleaded yet after Verdict it is sufficient Fletcher versus Harcot AN action upon the case was brought by Fletcher of Otely against Harcot and count Case that wheras the Defendant had arrested one Batersby by a Commission of rebellion Assumpsit in consideration that the plaintiff being an Hostler would keep a Prisoner to save him harmlesse issuing out of the Court of the Lord President and Councell of the North as he affirmed And wheras the Plaintiff keeps a common Inne in Otely and had kept it by the space of five years and had entertained men The Defendant requested the Plaintiff to keep the said Batersby in his Inne at Otely by the space of one night as a Prisoner and that he would keep and save him harmlesse and shew that he had kept him for that night as a Prisoner And Batersby afterward brought an action of false Imprisonment against him for the said keeping of him in his house and that he had expended and laid out in defence thereof ten pounds And that he had required him to save him harmlesse and he refused Non assumpsit found for the Plaintiff and moved by Harvey in Arrest of Iudgment that it is no sufficient consideration because it doth not appear that he had lawfully arrested the said Batersby for it is not affirmatively alledged but as he said Also it doth not appear that the recovery in the action of false Imprisonment was for the same cause but in that he had misinformed for it was in the Record Pro custodia praedicta ex causa praedicta And for the other matter the Lord Hobart seemed at first to doubt if it did not appear that it was a lawfull Arrest then there was no consideration But because the diversity when the consideration appears to be for doing of a thing which is unlawfull As if one at the request of I. S. promise to better I. D. and he promise to save him harmlesse this is a void Consideration But if one request I. S. to enter into the Mannor of Dale and drive out Cattle and that he will save him harmlesse if he doth so and after Trespasse be brought against him and recovery had he shall have his action So if a Sheriff pretending to have a Writ where he hath none arrest one and request an Inne-keeper to entertain him in his house or hire one to conduct the Prisoner to the Gaol and promise to keep him without Damage if an Action be brought and recovery had therupon the party shall have an action of the case against the Sheriff upon this promise for he which doth a thing which may be lawfull and the illegallity therof appear not to him he which imploys the party and assume to save him harmlesse shall be charged And Iudgment was entred for the Plaintiff Mich. 20 Jac. Parkers Case Debt Hue and Cry AN action of Debt was brought against the Hundred of _____ in the County of Stafford by William Parker upon the Statute of Winchester cap 1 2. reciting the Statute That forasmuch as Robberies do daily encrease Murthers and burning of houses and Theft be more often used then they have been heretofore Amendment of a false Abreviation and Felons cannot be attainted by the Oathes of the Iurors which had rather suffer strangers to be robbed and
to passe without pain then to indite the Offenders of whom great part be flock of the same Country c. And upon Nil debet pleaded it was found for the Plaintiff And it was moved by Serjeant Bawtry that the Writ had recited the Statute otherwise then it was for the Writ saies Indicari pro indictari and it ought to be written by this Abbreviation Indicāuri And the word Indictari is a word by it self and he resembled it to Freemans case Coke lib 5. fol 45. Fecit vastum vendicōnem destrictionem for destructionem and not amendable Also Coke lib 4. S. Cromwells case upon the Statute of Rich 2. de scandalis magnatum the word Messoignes is said Messuages and not amendable Harris answered that the Cursitor had a Note drawn which was well and it was only his mis-priston Secondly that there is no such Passive Verb as Indicari and so being insensible shall be amended And for that vouched 11 H 6. 2. 14. adjudged upon the Statute of forging of false Deeds Immaginavit were it should be Immaginatus est and amended 3. This Abbreviation is sufficient Also he said that it is only the preamble of the Statute wherupon the action is not founded but upon the body of the Act. Sir George Wrothies case in Ejectment the word Demisit was amended and made Divisit Brickhead against the Bishop of Yorke and Cooke for the Ticaridge of Leeds the Writ was Vacariam and for that the Cursitor was examined and his Instruction being Vicariam it was amended there An 14 Jac. 1. The Lord Hobart inclined strongly that it should be amended by the instruction which was delivered to the Cursitor but as to that Winch and I differed because that this matter of Instruction is not a thing which ought to be informed by the party as all matters of fact are As whether it be a Vicaridge or a Church or in debt for twenty pounds in the Instruction and he make it thirty pounds that shall be amended But in this case it is matter of skill and no difference between this case and Freemans case And in debt if he had Instruction in the Debet and Detinet and makes the Writ in the Detinet only that shall not be amended 2. The Lord Hobart inclined that this recitall is but in the Preamble and may be omitted to which we disagreed he inclined that the Abbreviation was sufficient to supply all the word This Case being long debated the Court Ex assensu ordered that the Defendants should give 80 l. to the Plaintiff Mich. 10 Jac. Rot. 641. Poole versus Reynold IOhn Poole brought a Prohibition against Richard Reynold Farmer of the Moyety of the Rectory of Colleton Prohibition Prescription to have Deer out of a Park in discharge of all Tithes and after the Park is disparked with the Chappell of Shute annexed to the said Rectory And the Surmise was that of time wherof memory within the Parish of Colleton there was a Rectory appropriate and the Cappell of Shute annexed therto Et una Vicaria perpetua ejusdem Ecclesiae de Colleton dotat And wheras the said John Poole for six years last past had occupied one house a hundred acres of Land twenty acres of Meadow forty acres of Pasture called Shute Park in Shute aforesaid within the Parish of Colleton which said Tenements were anciently a Park and now dis-parked which Park De temps d'out memory c. untill the dis-parking therof was used and filled with Deer and severed from other Land and was dis-parked An. 10 Eliz. and converted into the said house a hundred acres c. And that all the Occupyers of the said Park called Shute Park de temps d'out memory c. untill the dis-parking had paid to the Vicar there his Farmer or Deputy one Buck of the Summer season within that time upon request and one Doe of the Winter season within that time c. in discharge of all Tithes of the said Park untill the dis-parking and after the dis-parking in discharge of all Tithes of the said Tenements which they had accepted for all the time aforesaid untill the dis-parking and after or otherwise agreed with the Vicar for them And traversed this Prescription and found for the Plaintiff And now in Arrest of Iudgment it was moved by Henden that this Prescription extends to the Land quatenus it is a Park and that being destroyed the Prescription is gone for a Tenurs to cover a Wall or Thatch an house if the party destroy or pull it down the Tenure is extinct 32 E 14 Avowry And it shall be presumed that this was by grant when it was a Park which is collected by the thing which is to be paid and if it be to be paid or delivered out of the Park then it is determined vide Lutirels case Coke lib 4 Also this Prescription is against the benefit of the Church and shall not be enlarged And the Wood which is sold out of the Park shall not be discharged 14 Jac. in Conyers case in this Court Conyers case Prescription that the person had two acres of Meadow given in discharge of all Tithes of Hay ground viz. of all the Meadow in the Parish it any arrable Land be converted into Meadow it extends not to discharge that vide Lutirels case Coke lib 4 fol 86. That an Alteration in prejudice of the party determine the Prescription but vide the principall case there adjudged that building of new Mills in the same place and converting of Fulling Mills into Corn Mills alter not the Prescription vide Terringhams case lib 4. He which hath Common purchased part of the Land all is extinct for it is his own act And he cited a case which was in this Court argued at Bar and afterwards at Bench between Cooper and Andrewes Mich 10 Jac Rot 1023. for the Park of Cowhurst vide 32 E 1 Fitz avowry 240.5 E 2. Fitz annuity 44.20 E 4.14.14 E 4.4 But this case was adjudged for the Plaintiff Quod stet prohibitio and that which is by the name of Park is for the Land and is annexed to the Land by the name of Park if the Prescription had been to pay a Buck or a Doe out of the Park then it would alter the case But it is generall and had been paid also after the Park dis-parked viz. the tenth of Eliz. And the case of Cowper and Andrewes was the third shoulder of every Deer which is killled in the Park and two shillings in money and that case was never adjudged Hil. 10 Jac. Meredith versus Bonill Case HUgh Meredith a Iustice of Peace in the County of Monmouth brought an action upon the case against Bonill Words for these words I will have him hanged for robbing on the high way and for taking from a man five pounds and an Horse After Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words were not actionable for they
when the Plaintiff is supposed to speak Treason and it might be when he was an Infant or that it is pardoned To which it was answered by the Court First That these words ought to be alledged as they were spoken and that was Indefinite 2. The time is not materiall unlesse the Defendant make it materiall by his plea viz. When he was in giving Evidence for the King against a Traytor and then he repeated such words or when that the Plaintiff was frantick and of that he intended and so justifie there the time may come in question 2. The second Exception was that there is not any expresse affirmative to that it was answered by the Court that it was more then an Affirmative for he had as he said proof therof and not a report or hearsay And if one say it is reported c. that will not bear action unlesse he justifie the report by charging it upon him which was the Author of the report 3. Also it was objected that the speaking of treason was not treason But it was holden clearly that it is as well as Preaching or writing Et Index animi Sermo 4. Also it is not said what treason and it may he high or petit treason To which it was answered that when he speaks generally of treason it shall be intended according to the common intendment which is treason against the King vide Sir William Mulgraves case Coke lib 4. And two Cases were vouched to be adjudged in the Point Johnson and Atewod one between Johnson and Atewood 8 Eliz. Thou hast spoken Treason and I will hang thee for it adjudged actionable The other was between Pewall and Vardoffe Pewall and Vardoffe 9 Jac. Thou hast spoken treason and I will prove it adjudged actionable And it was resolved by all that the Plaintiff should have his Iudgment Flight versus Gresh Case THomas Flight brought an action upon the case against Gresh and count that wheras the Plaintiff and one Baleman were bound in an Obligation to the Defendant In consideration that the Obligor pay the summ the Obligee assume to deliver the Bill for the payment of such a summ at such a day The Defendant in consideration that the Plaintiff would pay to him the laid summ at the day assumed to deliver the Obligation to the Plaintiff and shewed that he had paid the money at the day and the Defendant did not deliver it but after sued it and recovered and had the Plaintiff in prison in execution by the space of a year The Defendant protestando that he did not assume for plea saith that the Plaintiff did not pay it and therupon Issue and found for the Plaintiff And it was moved by Serjeant Gwin that this action lies not for want of consideration for the Plaintiff did nothing but that which he was obliged to do and no profit to the Defendant for if he had not paid the summ the Obligation had been forfeited And he resembled it to the case of 9 E 4. 19. An accord in Trespasse that the Defendant should deliver to the Plaintiff his Evidences and permit him to enter into his Land is no good Bar So in an Arbitrement 12 H 7. that the one permit the other which was disseised to enter and that he should give to him his Charters and Evidences is not good And he vouched one to be resolved in the Kings Bench Greenwood and Becket between Greenwood and Becket where one had forfeited three Bills in consideration that the Plaintiff will pay the three severall summs three daies after he would deliver them to the Plaintiff And the Court was of opinion that it was no sufficient consideration Richardson to the contrary and said that the payment without Suit was for the advantage of the Obligee to be sure of his money and may be more available to him at this time then the forfeiture afterwards And he vouched a Case to be adjudged that where one had bought Cattle in a Market and had paid for them and the party which had bouoght them because that he which bought them had them in possession and would not deliver them in consideration that the party would deliver them promised to pay him a certain summ an action lies therupon And the opinion of the Court was that the action lay for for any thing that appears the monies were paid before the time that in Law they might be paid viz. before the setting of the Sun And it is without question if a man to whom money is to be paid come to the party the same day and pray him to pay it in the morning and that in considerations therof promise to pay him five pounds to abate five pounds or to deliver an Obligation this is good And a voluntary promise to do that which is in good conscience good and just for him to do shall bind him and the rather because he had benefit viz. to be sure of the performance And the forfeiture is but means to obtain the principall summ And if one had Iudgment and in consideration that he will not sue execution the other promise to pay it is good And because that in this case it appears that by the non-performance of this promise the Plaintiff had prejudice and the Iury had found solvit the Plaintiff had Iudgment Hil. 21 Jac. Rot. 3150. Trevors versus Michelborne EDmond Trevors brought a Scire facias against Michelborne Sheriff of Surrey Sci. fac Sci. fac against the Sheriff for taking of insufficient Pledges for the returning of insufficient Pledges in a Replevin brought by one Ray against the now Plaintiff in which the said Richard Ray made default wherupon a Retorn habend was awarded an Averia elongata returned and then a Withernam and then a Nichil c. And for this taking of insufficient Pledges this Scire facias is brought upon Westminster 2. cap. 2. And the Defendant demurred Somerford and Beamont vide the lake President Hil 11 Jac. Rot. 3563. between Somerford and Beamont Hil. 1 Car. Uvedall versus Tindall Enter Hil. 21 Jac. Rot 705. Southamp SIr Richard Uvedall brought an action of Trespasse against William Tindall Clark Vicar of Alton Trespasse What things are smal tithes and what great and John Loveland for taking bona Cattella and count for the taking of two Carectac glaci Anglice Wood And upon Not guilty pleaded the Iury gave this speciall Verdict Viz. For the Moyety of a Lead of Wood Si videbitur Curiae quod decimae glasi ne sunt minutae decimae then the Defendants not guilty but si sunt minutae decimae then they are guilty And this case was argued at Bar by Serjeant Bridgeman adn Serjeant Henden And the Court unement agreed that for ought that here appears this Verdict being found without any circumstance that this Wood shall be taken to be Minuta decimae It was agreed by Henden that if it had been found Wood growing
in a Garden then minutae decimae And it was agreed by the Court that it might have been so found that it should be Majores decimae and prâ—â—diall as if all the Profits of the Parsonage consist of such Tithes And so of other things which in their own nature are minutae may become majores if all the profit of the Parish consist therin As in some Countries a great part of the Land within the Parish is Hemp or Lime or Hops there they are great Tithes and so it may be of Wholl and Lambs Beddingfields Case Pasch 3 Jac. in the Kings Bench Beddingfeilds case Farmer to the Dean and Chapter of Norwich who had the Parsonage Impropriate and had used to have Tithes of Grain and Hay and the Vicar had the small Tithes And a Feild was planted with Saffron which contain forty acres And it was adjudged that the Tithes therof belong to the Vicar Potmans case There was a Case in this Court as it was vouched by Henden 3 Jac. between Potman a Knight and another And the question was for Hops in Kent and adjudged that they were great Tithes but as for Hops in Orchards or Gardens these were resolved to belong to the Vicar as Minutae decimae There was a Case in this Court for tithe of Weild which is used for Dying and that was in Kent and it was sown with the Corn and after the Corn is reaped the next year without any other manurance the said Land brings forth and produce Weild And that was a speciall Verdict whether the Vicar shall have the tithe of it or the Parson but one of the parties died before any Iudgment And if Tobacco he planted here yet the tithes therof are Minutae decimae And all these new things viz. Saffron Hops Wood c. if it doth not appear by materiall circumstances to the contrary shall be taken as Minutae decimae And so this case was adjudged for the Defendant Hil. 1 Car. Townley versus Steele FRancis Townley and three others the Executors of William Peacock brought a Writ of Ravishment of Ward against Richard Steele and Anne his Wife for the Ravishment of the body of Ralph Smith Cosin and Heir of Ralph Smith In Ravishment of Ward brought by Executors are Non-suited whether they shall pay costs and count of the Tenure by Knights-service in Ralph Smith of William Peacock and that Ralph Smith died the said Ralph his Cosin and Heir being within age and that William Peacock the Testator seised of the body and died possessed therof and made them his Executors and they being possessed of the said Ward the Marriage of whom belong to them the Defendants Rapuere illum abduxere And upon Not guilty pleaded the Iury was at Bar and the Plaintiffs after Evidence were Non-suited And whether the Defendants shall have costs in this case was the question upon the Statute of 23 H. 8. cap. 15. or by the Statute of 4 Jac. cap. 3. And it being argued by Davenport and Attho the Court this Term the chief Iustice being absent gave their opinions And Iustice Crook argued that they should not have costs and put many cases when Executors bring actions they shall not pay costs and so is Common Experience after the Statutes which is the best Interpreter of the Law And if it should be otherwise Executors would be discouraged to bring actions for the debts of their Testator And Iustice Harvy was of the same opinion but Iustice Yelverton and Hutton to the contrary And they agreed that in all actions brought by Executors upon Contracts Obligations or other things made to the Testator there shall be no costs for that is not within the Statute viz. Contracts or Specialties made to the Plaintiff or if an action be De bonis asportatis in the life of the Testator or upon any Tort supposed to be done not immediatly to the Plaintiff there shall be no costs because that the Statute gives not costs in these cases 20 Mariae Debt upon a Demise for years if the Plaintiff shall be Non-suited there shall be costs for it is upon Contract though in some sort reall But in this case though the Plaintiffs are named Executors and their Title is derived from their Testator yet the action is brought upon an immediate Tort done to themselves and it is within the very words of the Statute and this Statute which is to prevent Vexatious Suits shall be taken favourably If Executors have a Lease for years and they demise it rendring rent and for Rent arrear they bring an action it shall be in the Debet and Detinet and they shall pay cost if they be Non-suited and yet their Title is as Executors but it is founded upon their own Contract so if they bring an action of Trespasse for the taking of Goods which came to their possession which Goods were in truth tortiously taken by the Testator and he died possessed therof and they being Non-suited they shall pay costs And Executors in actions brought against them shall pay costs and if they have no Goods of the Testator it shall be De bonis propriis And vide that upon Contracts made by them or Rent arrear in their time the action shall be in the Debet and Detinet vide Coke lib 5 Hergraves case But when Debt in brought by Executors and recovery had and after a recovery an escape and Debt upon this escape this shall be in the Deticet only according to the first cause of action And this Ravishment of Ward is an action within the Statute of 23 H 8. and the Statute of Westminster â— gives no Damages and therfore costs by the Statute of Glocester cap 1. and the Statute of 4 Jac. inlarge the actions and not the persons Hil. 1 Car. Beverley versus Power VPon an Assembly this Term of all the Iustices at Serjeants Inne by vertue of an Order of the Star-chamber made the last Term at reading the Case was Iames Beverley was Plaintiff against Robert Power Pardon and Mary Beverley and others which Bill was exhibited Hil 16 Iac. and the Bill was for scandalous matter not examinable in this Court and for other matter which was examinable and Witnesses examined and published And then the 19. of Febr. 21 Iac. the generall Pardon is made by Parliament by which all Offences Contempts and Misdemeanors del 20. Decemb. before except such Offences contempts c whereof or for which any Suite or Bill within eight years before was exhibited into the Star-chamber and there remaining to be prosecuted this last day of this present Parliament And afterwards viz. Mich. 1 Caroli the Cause came to hearing at the Suit of the Defendant and upon the hearing Power was fined two hundred pounds and for the abuse and contempt to the Court for exhibiting the scandalous matter the Plaintiff was fined five hundred pounds and for damage to the Defendant five hundred marks And yet because of the difficulty
it is not deminâ—tion of his Honor to be sworn concerning that which he would not have to be put upon his Honor. Also it is a good Rule Testi non jurato non est credend in judicio And Princes are sworn to all their Leagues and Confederacies which is called Jeramâ—ntum confirmationis Hil. 2 Car. Winsmore versus Hobart Trin. 27 Eliz. Rot. 850. Wilts IN an Ejectione firmae brought by Thomas Winsmore against Michaâ—l Hobart upon a Lease made by Edward Long the Iury gave a speciall Verdict Habendum to parties not named in the Deed. William Lord Sturton seised of the Tenements in the Count in Fee by Indenture demised them to Thomas Hobart habendum to the said Thomas Hobart and to the said Michael Hobart Iohn Hobart and Henry Hobart Sons of the said Thomas for their lives and the life of the Survivor of them successively By vertue wherof the said Thomas entred and was seised for life And the Lord Sturton granted the Reversion to Thomas Long in Fee to whom Thomas Hobart attorned Thomas Long devised it to Edward Long in tail Edward Long died seised and the Reversion descended to Edward his Son the Lessor of the Plaintiff Thomas Hobart and Henry died Michael and Iohn survived Michael entred Thomas Long entred upon him and made a Lease to the Plaintiff who entred and was possessed untill the Defendant ousted him And Judgment was given for the Plaintiff The Habendum was void as to all them which were not parties to the Deed. Pasch 3. Car. Hartox and Cock's Case Entred Pasch 2 Car. Rot. 1761. Hertf. A Quare Impedit was brought by George Hartox and Cocks against the Bishop of Lincoln Advowson in grosse for life Lord Keeper of the great Seal Mary Hewes and David Dublin Clark for the Church of Essington The Issue being joyned by the Incumbent upon the Appendancy the Evidence given to the Plaintiff to prove it was such Henry 6. was seised of the Mannor in Fee and granted it to Mary his Consort for life Habendum una cum advocatione of the said Church The Queen Mary presented and after there was a Presentment by Laps then the said Queen presented again And afterwards Edward the fourth seised of the said Mannor presented and then Henry the seventh and Henry the eighth And the King Edward the sixth granted the Mannor and other Mannors and the Advowson to Sir Iohn Pawlet in Fee reserving Tenure in Capite for the Maonnrs and Socage Tenure for the Advowson And the said Sir Iohn Pawlet granted the Mannor and the Advowson to William Tooke in Fee who presented the last Incumbent and under this Title the Plaintiffs entitle themselves The Defend said that the said Wil. Took was seised of the said Advowson and it defended to William Tooke the Son and granted the next avoidance and it came to Mary Hâ—wes who presented the Defendant Dublin and the Evidence to prove that it was in grosse was Henry the third being seised in Fee of the Mannor of Essinton made a Lease therof to his Brother for life and excepted the Advowson and then upon the expressing of the Advowson upon the Grant of Edward the sixth and the reservation of severall Tenures And this was their Evidence And Serjeant Henden maintained that by this exception of the Advowson when it was granted for life made it to be in grosse for ever And he vouched 38 H 6. 13. Quare Impedit by the King against the Abbey of Sion and the Incumbent there by the Exception of the Advowson it was become in grosse and there one said at least during the Estate for life and that is all which is implyed by the Book for the Iudgment is for the King because that it being not appendant is passed not by the Grant by the Habendum una cum c. And though that the Court unement agreed that it is but in grosse for the Estate for life and that it is all one as if the King had granted the Advowson which is appendant for life and the Grantee dies and the Advowson is appendant again and yet he insisted and persisted to have a speciall Verdict found therupon And I moved my Brother Yelverton that before we admit of a speciall Verdict as it hath been used in former times to go to the Iudges of the Kings Bench and to put the case to them to know their opinion and when he came again and declared it we put it upon the Iury to try the matter and they came in and found for the Plaintiff And after that the Demurrer which was joyned for the other Defendant Mary was by consent entred for the Plaintiff vide Dyer 34 in appeal vide 7 H. 6. 37. Chidley's Case CHidley brought a Quid juris clamat and had Iudgment against the Defendant and the Plaintiff had made a Warrant to his Attorney for the receiving of his Attornment Quid juris clamat and the Defendant would have attorned but would not do his Fealty And the Presidents were that he ought to be sworn in Court and the entry of the Iudgment is that he did attorn And fecit fidelitatem and so he was sworn in Court vid. 37 H 6. 14. If he refuse to attorn being in Court he shall be committed for contempt Moyle said that that is Attornment but Prisot said that he should not have a Writ of Wast nor arraign an Assise untill he assent Trin. 3 Car. Rot. Humbleton versus Buck. Lincoln SImon Humbleton brought an action upon the case against Buck Case Assumpsit in consideration of defending Suit in maintenance of a Title of Common and counted that wheras a Controversie was between the Inhabitants and Tenants of Fletam and one Palmer for and concerning the having of Common in one parcell of Land which was a Sea-bank in which they had Common of Pasturs for taking by Cattell and also by taking and cutting the Grasse And wheras the said Palmer had brought an action of Trespasse against the now Plaintiff for entry made by him in the said close and for taking his Grasse pretending that the said Land in which he claimed Common was his severall and free from their claim of Common the Defendant in consideration that the Plaintiff had given to him a Iugg of Beer and that he at the request of the Defendant would prosecute and defend â—he said Suit for the maintenance of their Common against the said Palmer untill the determination therof he promised to pay to the Plaintiff one moyety of his charges and over and besides twenty pounds and that therupon he defended the said Suit and pleaded Not guilty and at the tryall therof Palmer was non-suited and that that was for the maintenance of the Common and that he expended in defence and prosecution of the said Suit forty pounds The Defendant confessed all the Inducement and also a promise sub modo and sayd that the said Palmer had brought Trespasse to which the Plaintiff had
reasons the Court gave Iudgment for the Plaintiff And Serjeant Ward argued well and vouched divers good Cases The Writ of Detinue supposeth properly in the thing demanded vide 50 E. 3. 6. Cook versus Cook WIlliam Cooke alias Barker brought an Action of Wast against George Cook alias Barker and count against him as Tenant for life How a Writ of Wast shall be where there is a lease for life remainder in fee. of the Lease of George Cook and intitle himself to the Reversion Ex assignatione of the said George and shews that George Cook being seised in Fee and the Ter-tenant in Socage devised the Land to the Defendant for life the remaineer in tail to the Plaintiff And upon the Count the Defendant demurred And the Question was how the Writ should be where a Lease is made for life the remainder in Fee for it cannot be Quod de ipso tenet And it seems that the Writ shall be speciall upon the Case as a Fine levied to one for life the remainder in Fee the Writ shall be speciall upon the Case And it seems that it shall never be Ex assignatione but where the Reversion is granted over vide 38 E 3. fol. 23. the direct Case and vide 38 H. 6. fol. 30. in the Writ of Consimili casu vide F N B fol 207. in the Writ of Consimili casu qui illud tenet ad vitam D. ex Assignatione praedicti B. quam I. filius heres R. qui quidem R. illud praefat D. demisit ad eundem terminum inde fecit praefat B. c. The Estate for life with a Remainder over is but one Estate and it was a question at Common Law if he in remainder shall have an action of Wast vide 41 E 3. 16. 42 E 3. 19. 50 E. 3. 3. Reg. 75. But at this day the Law is cleer that he in remainder shall have an action of Wast F N B fol 207. but these Books prove that the Writ of Wast ought to be Ex divisione non ex assignatione Mich. 6 Caroli Case Words AN action of the case was brought for these words Thou art a Theef and hast stoln one Passions Lamb and marked it and denied it And upon Not guilty pleaded and Verdict for the Plaintiff Serjeant Ashley moved in Arrest of Iudgment because that it is not shewn whose Lamb for Passions is no word of any signification without the name of Baptisme And the Court was of opinion that the Count was good for it had been sufficient to call him Theef and then the subsequent matter and words aggravate and contain matter of Felony And it is a generall Rule that when the first words are actionable the latter words which toll the force therof ought to be such as do not contain Felony Babbington versus Wood. BAbbington brought an action of debt against Wood upon an Obligation of 600 l. the Condition was That if Wood resign a Benefice upon request that then the Obligation should be void A Condâ—tion to resign a Benefice upon request And the Condition was entred the Defendant demurred and Iudgment in Banco Regis pro querente And upon Error brought Iudgment was affirmed in the Exchequer Chamber for this Obligation is not voidable by the Statute of 14 Eliz. which makes Obligations of the same force as Leases made by Parsons of their Gleaves viz. Per non residency And it doth not appear by the Plea of the Defendant that it was not an Obligation bona fide which might be lawfull As if a Patron which hath a Son which is not yet fit to be presented for default of age and he present another with an agreement that when his Son comes to the age of 24. years be shall resign it it is a good Obligation And this Case viz. an Obligation with Condition to resign had been adjudged good in the case of one Jones An 8 Jac. And the Councel said that he who is presented to a Church is married therto Jones Case and it is like as if a man who hath married a Wife should be bound to be divorced from her or not co-habit with her these Conditions are void But these resemble not our Case Wilson versus Briggs WIlson brought an action of Account against Briggs as Bayly of his Mannor in the County of Cambr. Tryall of an action of Account upon receit in two Counties and also as Bayly to another Mannor in the County of Suff. And this action was brought in the County of Cambr. and found for the plaintiff and Iudgment to account and found in the arrearages and Iudgment given And now the Defendant brought a Writ of Error Iudgment was reversed because it was mis-tryed for it should be tryed at the Bar by severall Ven. fac to be directed to the severall Sheriffs First it is agreed that a writ of Account against one as Bayliff of his Mannor cannot be brought in another County but only in that County where the land lies vi 8 E. 3. fol 46. Fitz. Acc. 93. see there that two actions of Account brought against one for receit in two Counties And there it is said that it being upon a day that he may have one writ and count in the two Counties But to that it is said that that proves not but that he might have two Writs wherby it might be awarded that he should answer But in this case it was resolved that it was a mis-tryall for it ought to be by two Ven. fac and tryed at Bar and it is not aided by the Statute of 21 Jac cap 13. Trin. 8 Car. Purnell versus Bridge Hil. 6 Car. Rot. 1235. Fine to two and the heirs of one to the use of them two in fee. HEnry Pernell brought Replevin against William Bridge Robert Bridge and two others William Bridge plead Non cepit and the other made Conusance and upon Demurrer the case was such Richard Braken was seised in Fee of sixty acres of arrable Land and forty eight acres of Meadow and Pasture wherof the place in which c. was parcell And he the sixth of Febr. An 18 Eliz. by Deed granted an Annuity or Rentcharge of thirteen pounds six shillings out therof to Edward Steward in Fee payable at the Feast of Saint Peter or within eight and twenty daies after And if it be arrear for eight and twenty daies after the said Feast that then he forfeit for every Fine after forty shillings with a clause of Distresse as well for the said Rent as for the said forty shillings if it shall be arrear Edward Steward seised of the Rent died wherby it descended to Ioan Iermy Wife of Thomas Iermy Daughter and Heir of the said Edward Steward and they being seised therof in the right of the said Ioan An. 41 Eliz. in Crastino animarum levied a Fine of the said Rent to Robert Brook and Isaac Iermy and to the Heirs of Robert which Fine was to the
use of the said Robert and Isaac and their Heirs for ever by force therof and of the Statute 27 H 8. they were seised of the said Rent in Fee and after the said Robert died and Isaac survived and is yet seised Per jus Accrescendi and for Rent arrear c. and for the said forfeiture of forty shillings they avow wherupon the Plaintiff demur And upon Conference between the Iudges they all agreed that by this Fine which granted to Brook and Jermy and the Heirs of Brook to the use of Brook and Jermy and their Heirs that they were in by the Statute of 27 H 8. and were Ioyn-tenants of the Rent for otherwise there would be such a Fraction of the Estato that Brook should be in by the Common Law and Jermy by the Statute and that is not according to the Statute And it appears that the use was limited by the Fine it self and not by any Indenture And the principall reason is upon the Statute of 27 H 8. which is where two or three are seised to the use of one or two of them Cestui que uâ—e shall be adjudged to have such Estate in possession as they have in use Iudgment pro Defendent Memorand That in this Term a motion was made for the filing of a Writ of Entry in a Common Recovery suffered by Sir John Smith upon a Purchase and all was well done and the Writ made and sealed Filing of a Writ of Entry many Termes after but by the negligence of the Attorney it was not filed and it was Unanimo assensu resolved that it should be filed and that after the death of Sir John Smith for it is but to perfect a Common Recovery which is a Common Conveyance And this was denied in the case of one Allonson for there Error was brought and Diminution alledged and a Certificate that there was no Writ by the Custos brevium And it is ordinary to file these Writs at any time within a year without motion Mich. 8 Car. Harbert versus Angell CHarles Harbert Plaintiff against Angell Case Words in an action upon the case of words which were Thou art a Theef and hast cousened my Cosin Baldwin of his Land And after Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words would not maintain action And at the first Iustice Crawley and Iustice Vernon were of opinion that the former part of the words were actionable and that they were not extenuated by the subsequent words but they agreed if it had been for thou hast robbed c. it would be otherwise And the Lord Heath and Iustice Hutton were of a contrary opinion and that the words And and For are in this case to have one effect and declare what Theef he intended And they relyed on Birtridges case Coke lib 4. And upon this diversity of opinion the Lord Heath conferred with the Iustices of Serjeants Inn in Fleetstreet and we with the Lord Richardson and they all agreed that the subsequent words explained his intent and meaning viz. the Robbery and cousening of the Land And Verba sunt accipienda in mitiori sensu As to say Thou hast stoln my Corn it shall be intended Com growing so in Arrowes case Arrowes case 19 Jac. Thou art a Theef and hast stoln ten Cart-loads of my Furzes adjudged not actionable for it shall be intended of Furzes growing Quaerens nil capiat per breve Ram versus Lamley Norff. RAm brought an action upon the case against Lamley and declared That wheras he was Bonus legalis homo and free a suspitione feloniae the Defendant maliciously want to the Major of Linn and requested a Warrant of him being a Iustice of Peace against the Plaintiff for stealing his Ropes The Major said to him Be advised and look what you do the Defendant said to the Major Sir Words I will charge him with flat Felony for stealing my Ropes from my Shop Quorum quidem verborum c. And after Not guilty pleaded and Verdict for the Plaintiff Hitcham moved in Arrest of Iudgment And the Court unanimously resolved that these words being spoken to the Iustice of Peace when he came for his Warrant which was lawfull would not maintain an action for if they should no other would come to a Iustice to make complaint and to inform him of any Felony Quaerens nil capiat per breve Mich. 8 Car. Lamb versus West Trin. 8 Car. Rot. 333. SIr John Lamb Knight brought Replevin against Thomas West and count Replevin that the Defendant took his Beasts at Blisworth in quodam loco vocat Thorny Close The Defendant avowed as Bayliff to Sir William Sheapherd and derived Title by a Lease to Michael West for ninety years if he and Thomas West the Defendant Demand of Rent and one Hutton West should so long live And the said Michael 19. Aprilis An 20 Jac. granted a Rent-charge of ten pounds per annum to the said William Shepheard and his Executors out of the place in which c. for the residue of his Tearm to be paid at the house of Thomas West in S. And the said Mich. granted that if the Rent he arrear by eight and twenty daies being lawfully demanded at the said house he should forfeit twenty shillings for every day that it should he arrear and if it be arrear by six months being lawfully demanded at the said house then he might distrain for that and the Nomine poenae And for Rent arrear by a year after demand due c. he makes Conuzance And therupon the Plaintiff demurred generalls And after many Arguments at Bar the Iustices delivered shortly their opinions severally and all argued that it is a Rent-charge and then a Distresse is incident to a Rent-charge which is in its creation a Rent-charge as well as if one makes a Lease for life or years rendring Rent and if it be lawfully demanded then it shall be lawfull to distrain for it None will deny but that he may distrain for this Rent without any demand And the diversity is between a Penalty and a Rent for if the Avowry had been for any part of the Nomine poenae then without actuall demand at the day he could not have distrained therfore vide Maunds case Coke lib 7. fol 28. And all agreed that when a Distresse is for Homage if it be once tendred and refused he cannot distrain without demand vide Litt 34. 21 E 4. 6. 16 17. 7. E 4. 4. That where a Rent is reserved upon a Lease and an Obligation to pay it yet that alters not the nature of the Rent 22 H 6. a good case Rent is reserved upon a Lease and an Obligation to perform Covenants that extends not to the Rent reserved but if it be to pay the Rent then it shall be demanded there it is said that if Rent be tendred and refused the Lord or Lessor may distrain without demand It was agreed that
happen as in Chudleys case Coke lib 1. fol 133. a Feoffment to the use of the Feoffor for life and after his death to his first Son which shall be afterwards born for his life and so to divers And afterwards to the use of I. D. in tail It is resolved that all the uses limited to-persons not in Esse are contingent but the uses to persons in Esse vest presently and yet these contingent uses when they happen vest by interposition if the first Estate for life which ought to support them be not disturbed And in this case it was a good Estate for life in Margaret And then gives the remane in the Feoffees for eighty years if Nicholas and Elizabeth Sanders so long should live and if Elizabeth survive Nicholas then to Elizabeth for her life and after her decease to Posthumus in tail and after his decease to the said three Daughters in tail so that there the Estate for years determines upon the death of Elizabeth and so also the Estate for life to Elizabeth which was contingent determines by his death And the Lord Darbies case a Feoffment to the use of Edward The Lord Derbies case late Earl of Derby in tail and then to the use of the two Feoffees for eighty years if Henry late Earl of Darby should so long live and after his decease to Ferdinand and to the Heirs Males of his body and for default of such Issue to the use of William now Earl of Derby And it was adjudged that the remainders vest presently And this possibility that Henry might have over lived the eighty years will not make the remainders contingent And in a Suit which was at Lancaster between Farrington and another Farringtons case upon a speciall Verdict there found about 8 Jac. and many times argued at Serjeants Inn it was afterwards adjudged a good remainder and not contingent And the same case in this Court upon a Scire facias for two have executor of certain Land for debt recovered against the Earl of Derby which Land was intailed by the same Conveyance c. brought against the Earl of Bridgwater and his Wife one of the Co-heirs of Ferdinand Earl of Derby was adjudged in this Court vide Borastons case Coke lib 3. fol 20. 14 Eliz Dyer 314. Lovies case Coke lib 10. 27 H 8. 24. 38 E 3. 26. 5 E 3. 27. 30. E 3. Collthurst and Bemchins case was urged that the remainder limited to B. for life and after that C. hath married Ja. S. then to the use of C. in Fee this is contingent and is collaterall And this case is not like to that And after Argument at Bar this Term it being argued before that the Lord Richardson was there who was of the same opinion we all concurred and Iudgment was entred for the Plaintiff Pasch 8 Car. Metcalfe versus Hodgson Case MEtcalfe brought an action upon the case against Hodgson and Wharton late Sheriffs of the City of York and count That wheras time out of memory c. there hath been a Court of Record holden before the Sheriffs of the said City upon the Bridge called Ousbridge An action of the case lies not against a Sheriff for taking of insufficient Bail being Iudges and that in this Court every one having cause of action arising within the said City had used to commence any action for debt there and that the Defendants being arrested by their bodies the Sheriffs had used to take Bayle of them and to let them to Bayle finding sufficient sureties and that the Sheriffs are also and time out of memory have been Keepers of the Gaol there And wheras the Plaintiff had brought an action against one Smith and recovered the now Defendants being Sheriffs had taken insufficient Bail of him c. And upon Not guilty pleaded it was tryed before the Lord chief Baron at York for the Bail are supposed to be taken at Wakefield but that was not alledged for any thing which appears to be out of their Iurisdiction And the Iury contrary to the direction of the Lord chief Baron gave Verdict for the Plaintiff And after many motions in Arrest and praying of Iudgment it was resolved that this act was done by them as Iudges and for this Iudiciall Act no action lay And though that the Bail by the event appear to be insufficient yet there is no remedy by action upon the case it being without fraud or corruption and not for reward And this Case differs nothing from the ordinary cases of all insufficient Bailes taken by any of the Kings-Bench Common Bench or Exchequer And that they having two Authorities in una persona it shall be taken to be done by that Authority by which they have power to vail and that is as Iudges of the Court and not as Gaolers for by this they have no power to Bail any and in this capacity they are only subject to an escape vide Dyer 163. Error cannot be assigned in that which the Court of Common Bench do as Iudges vide 12 E 4. 19. Conspiracy lies not for that which a Iustice doth as Iudge of Record Quaerens nil capiat per breve Mich. 8 Car. Hickes versus Mounford Trin. 7 Car. Rot. 514. Replevin REplevin brought by Walter Hickes against Simon Mounford and others the Defendants make Conusance as Bayliffs to Sir John Elliot Executor of Richard Giddy And that the place contain twenty acres and was parcell of the Mannor of Trevelun And that Thomas Archbishop of York and Cardinall and three others were seised of the Mannor wherof c. in Fee Traverse of a day and the third of June 11 H 8. by Deed inrolled granted to King H. 8. a Rent-charge of fifty Marks per annum out therof in Fee with clause of Distresse and convey the Rent by discent to E. 6. Mary and Elizabeth who by her Letters Patents granted it to Richard Giddy for life who made the said Sir John Elliot his Executor and died and for such a summ arrear they Avow c. The Plaintiff pleaded in Bar to this Avowry and confessed the Seisin of the said Arch-bishop and the others and said that the said Arch-bishop and the others the fourth of June 11 H 8. enfeoffed Peter Edgecombe in Fee of the said Mannor who conveyed it to Richard Edgecombe Knight who entred and licensed the Plaintiff to put in his Beasts which he did and that they were there untill by the Defendants distrained absque hoc that the said Arch-bishop and the others the aforesaid 3. June 11 H 8. granted the said Rent to the said King and his Heirs Modo forma prout the Defendants alledged Et hoc paratus est verificare The Defendants say that the Arch-bishop and the others granted the Rent to the King modo forma as they had alledged and Issue therupon and the Iury found That the said Arch-bishop and the others 11 H 8. recovered this Land against Sir
are not Affirmative or Positive but a supposition only as if he had said Nowels case I will indite him for such a matter it was vouched to be adjudged 51 Eliz. in Nowels case that to say of an Attornaâ—â— That he was Cooped for forging Writs maintain an action And 14 Eliz. He is infected of the Robbery and he smelleth of the Robbary adjudged actionable In balls case There is never a Purse cut in Northamptonshire but Ball hath a part of it will not bear action But the Court would not declare their opinion Quia sub spe Concordiae Griggs Case GRigg which is the Examiner at Chester preferred there this Bill in the Chancery vocat the Exchequer Prohibition â—i Chester against one which inhabite within the same County and another which inhabite in London being executors to one to whom the said Grigg was indebted by Obligation which Obligation was put in suit in the Court of Common Pleas and there proceed to processe before the Bill exhibited and the Bill concern equity of an Agreement that the Testator had promised that one Robert Grigg should assign a lease of Tithes to the Plaintiff in consideration of his entry into the said Obligation and if he could not procure it that then the Obligation should not be prejudiciall to him and he which was distributing in Chester answered therto And an Order was made by Sir Thomas Ireland Vice-Chamberlain that Processe should be awarded to him which dwelleth in London And an Inquisition was granted to stay the proceedings at Common Law And afterwards upon the motion of Serjeant Hitcharâ— Sir Thomas Ireland was in Court and shew all that he could to maintain the Iurisdiction viz. That the Contract was made in the County Palatine and that the priviledge pursued the Plaintiff and ipse qui est reus non potest eligere c. Yet it was resembled to ancient Demesn and Guildable And by Lord Hobart he which inhabit at Doveâ— by this way may be inforced to come and answer to a Bill in Chester which would be infinite trouble and the matter is transitory And it was resolved that the Court of Chester had not power in this case but it belonged to the Chancery of England And a Prohibition was granted Hil. 20 Jac. ONe case was in the Kings Bench viz. Trespasse Baron and Feme brought in action of Trespasse Quare clausum fregit Trespasse by Baron and Feme for breaking the Close of the Baron for the Battery of the Wife and for Battery of the Feme the Defendant pleaded a License to enter into the Close made by the Baron and not guilty as to the Battery And the Court was moved in Arrest of Iudgment because the Husband and Writ could not ioyn for the weaking of the Close of the Baron the Writ shall abate for all But the Lord chief Iustice and Iustice Dodderidge were of opinion that the Plaintiff should have Iudgment And it seems that the Law is clear accordingly vide 9 E 4. 51. Trespasse by the Husband and Wife for the Battery of them both the Iury found so much for the Battery of the Husband and so much for the Battery of the Wife and so Damages assessed severally because the Wife could not soon with the Husband in an action for the Battery of the Husband for that part the Writ shall abate and for the Battery of the Wife they shall recover for for that they ought or joyn in an action vide 46 E 3. 3. Baron and Feme brought Trespasse for the Battery and Imprisonment of the Wife and the Writ was ad damnum ipsorum and yet good vide 9 H 7. in the case of Rescous and 22 E 4. 4. there is a good diversity when the Writ is falsified by the shewing of the party himself and when it is found by Verdict And Iustice Haughton and Iustice Chamberlain were of opinion that the Writ should abate for it is apparent that as to the Trespasse Quare clausum fregit the Wife had no cause of action But this case being debated at Serjeants Inn in Chancery Lane at the Table the Lord chief Baron was of opinion that Plaintiff should have Iudgment for that part and he held the Writ good in part and Reddenda singula singulie Meâ—enest issint as it seems no more then in the case of 9 E 4. for there the Writ shall avate for part And if an action of forgery of Deeds be brought against two for forging and publishing and found that one forged and the other published the Plaintiff shall have Iudgment Howell versus Auger Trespasse IN an action of Trespasse brought by Noy Howell against Auger for breaking of a house and five acres of Land in Fresham upon Non Culp pleaded the Iury gave a speciall Verdict Devise of a Fee after a Fee Robert Howell seised of the Land in Question and of other Land by his Will in writing devised this Land to Dorothy his Wife for life and devised this Land to Thomas Howell his younger Son to him and his Heirs in Fee under the Condition which shall be afterwards declared And the other Land was also devised to Dorothy for life and to the Plaintiff and his Heirs in Fee under the Condition hereafter limited If Dorothy died before the Legacies paid then he will that they shall be paid by Noy and Thomas his Sons portion-like out of the Houses and Lands given them And if either of my Sons dye before they enter or before the Legacies paid or before either of them enter Then I will that the longer liver shall enjoy both parts to him and his Heirs And if both dye before they enter then his Executors or one of them to pay the Legacies and to take the profits till they be paid and a year after and made Dorothy his Wife and Christopher Roys his Executors and died Dorothy entred the Plaintiff Noy by his Deed In 33 Eliz. in the life of Dorothy released to Thomas all his right c. with Warranty Release of Lands devised before they be vested Thomas by his Will devised the Land for which the action is brought to Agnes his Wife and died in the life of Dorothy and before Legacies paid Dorothy died and Agnes entred and took to Husband Henry Ayleyard who leased to the Defendant upon whom Noy entred and the Defendant re-entred And Si super totam Materiam c. And this Case was well argued at Bar in two Terms and the first question was If this Devise of a Fes after a Limitation be good or not much was said for it and they relyed upon a case which was adjudged in the Kings Bench between Pell and Brown of such a limitable Fee Pell and Brown And many Cases put that this operate as a future Devise Executory as well as one may by his Will Devise that if his Son and Heir dye before he marry or before that he come to the age of
font and twenty years that then I. S. shall have the Land and it shall be good vide Dyer 33. Coke lib 10.46 Lampets case But Tuesday the eleventh of February the Lord Hobart by our direction because that we were streightned of time and Howell was so importunate for Iustice that we could not argue delivered the opinion of the Court that Iudgment should be given for the Defendant And he declared that as to the point of a Fee-simple which he called the mounting of one Fee-simple upon another we now declared no opinion But we all without difficulty resolved that this release of Noy be it a Condition or not had discharged it And as to him it is an Interest used by the Devise but not executed untill it happen And therfore in Lampers case there the Release discharged it for there he had no Title executed but vested and commenced and so may have Noy Howell the Plaintiff in this case and it is not like to an Heir in the life of the Father for be is a stranger and he hath no Title at all and yet his Release with Warranty bars him and here this Release is accompanied with Warranty of which nothing was spoken Also as to Noy it is a Condition according to the words of the Will and therfore sans question that Noy had barred himself The Vacation after Hil. 20 Jac. MEmorand That on Munday the seventeenth of February at Serjeants Inn upon the assembly of all the Iustices to take consideration upon the Statute of 35 Eliz. cap. 1. for the Abjuration of Sectaries the Atturney-generall and Serjeant Crew being there Resolutions upon the Statute of Eliz. cap. 1. concerning Sectaries after the perusall of the Statute and the Continuances therof it was first upon debate considered whether this Statute was in force or discontinued and upon the perusall of the Proviso in the Statute of Subsidy and upon reasoning the matter these Points were resolved 1. If a Parliament be assembled and divers Orders made What shall be said a Session of Parliament and a Writ of Error brought and the Record delivered to the higher house and divers Bills agreed but no Bills signed That this is but a Convention and no Parliament or Session as it was An. 12 Jac. in which as it was affirmed by them which had seen the Roll it is entred that it is not any Session or Parliament because that no Bill was signed vide 33 H 6 Brook Parliament 86. every Session in which the King signes Bills is a Parliament 2. It was agreed that if divers Statutes be continued untill the next Parliament or next Session and there is a Parliament or a Session and nothing done therin as to continuance all the said Statutes are discontinued Beriatim Jones Chamberlain Hutton Denham Haughton Dodderidge Winch and Bromley declared their opinions that this Statute is discontinued And that the Statute of Subsidy is a Parliament and that every Parliament is a Session but not e converso for one Parliament may have divers Sessions as the Parliament 1 Jac had four and ended An 7 Jac. vide 33 H 6. Br. Parliament 86. And that this Proviso is not to any other purpose but to continue their proceedings in the same Estate as if this Act had not been made and if this Proviso had not been then this Statute had been discontinued by this act of Subsidy but when this ends and is determined then is the Session ended then it is a Session scilicet a Parliament which ought to be pleaded at the Parliament holden c. and all the Commissions of Subsidy are accordingly and the Proviso call it a Session Then this being done the Lord chief Baron did not deliver any opinion for he said that he had not considered the Statute and afterward it was desired that the Lords would deliver their opinions and therupon the Lord Hobart declared his opinion accordingly That it seemed to him that it was a Session and that it was not safe to meddle with such Law and that he would never refuse to declare his opinion with his Brethren After the Lord chiefe Iustice Ley made a long discourse concerning the purpose and intent of Parliament scilicet That it was not their purpose to destroy so good Lawes and therfore it was not any such Session as was within the intent of the preceding Parliament which was that these should determine when it is a Parliament or Session in which good Lawes are made And Doderidge said that it was fit to see the Commission and that that which hath been said was not to bind any one but every one spoke what then he was advised of and peradventure might change upon better consideration And afterwards upon Tuesday on an Assembly of the two chief Iustices the chief Baron Iustice Haughton Baron Denham Hutton Chamberlain and Jones the Attorney-generall brought the Commission de 12 El. June 1. and that had these words Pro eo quod nullus Regalis Assensus nec responsio per nos praestat fuit nullum Parliamentum nec aliqua Sessio Parliamenti lata aut tent fuit They have power to adjourn this Parliament thus begun And the Commission to dissolve this Parliament 38. Feb. An. 19 Jac. had the same words saving that he recite that he had given his Royall assent to an act of Subsidy by which was intended that it should not be a Session And upon view of the Commission the Lord chief Iustice moved that the King was mistaken in this that he had given power to dissolve this Parliament which had not any Session and if it be a Session then he had no power to dissolve it and then it is as it were a recesse and a Parliament cannot be discontinued or dissolved but by matter of Record and that by the King alone and if the Parliament yet continue then this Statute also continue during the Parliament by the Proviso but that would not serve for first it is against the intent of the King and against his Proclamation And also the case is truly put in the Commission as to the matter in fact and he is not mis-informed but mistaken in the Law and then the Commission for the dissolving is good semblable to the Lord Shandoi's Case and other Cases vide in Cholmleys case But because that all the Iudges were not at this Conference therfore it was deferred untill the next Term and in the interim the Grand Secretary and the Attorney-generall were to inform the King that the Statute is obscure and had not been put in ure and that we could not agree Mich. 20 Jac. Rot. 2805. Bawtry versus Skarlet Sussex JOhn Bawtry Clerk Case brought an action upon the case against Benjamen Skarlet one of the Attorneys of this Court by Bill and count In consideration that the Plaintiff will confesse Judgment the Attorney promise to defer the entry of the Judgment c. that wheras one William Carter Trin. 20 Jac.