is scriptum and for the time the Defendant ought to have alleged that he bad not convenient time Tender if the truth were so but here doth appear convenient time and it is not necessary for the Plaintiff to tender the Obligation but the Defendant ought to do it at his own perill and to pay the mony in convenient time after the mariage and the other is not bound to demand it Intendment nor to be at the charge to make the Obligation Bacon Iustice to the same effect and said the words ought to be intended of a writing obligatory according to common intendment Time and the meaning of the parties although it be not so expressed and it cannot be meant of a promise by parol for there are no presidents in Law for verbal securities but only for securities in writing and the word in debita juris forma implies so much otherwise here would be only one promise to make good another promise Pasc 9 Iac. rot 361. Banc. Reg. 21 Iac. upon a Writ of Error in the Exchequer-Chamber the former Iudgement was affirmed and the breach here assigned meets with the Assumpsit for it is that he did not become bound per c. and so the breach is well assigned 2ly Here appears in the Declaration to be two Months for the performing the promise which is a convenient time and there doth not appear any hinderance and the Defendant was bound to do it without request and there is no necessity for the Plaintiff to make an election of the time when he will have it done The Court bid the Plaintiff take his Iudgement except better matter were shewed on Monday following Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible entry To quesh an Endictment The Exception was that the forcible entry is said is to be made in messuagium sive tenementum which is incertain But Roll Chief Iustice doubted whether the exception was good or not because it was messuagium sive tenementum and the word Messuage may be good though Tenemen tum be not But it was quashed upon another exception The King against VVood. Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment taken at a Sessions against one Wood for getting the horse of another man into his possession To quash an Endictment by using another mans name and a false token The exceptions taken against it were 1. The Endictment doth not say that it was contra Statutum But to this the Court answered that it was an offence at the Comon Law and the Endictment lay at the Common Law and therefore it need not to be expressed to be contra formam Statuti 2ly It doth not shew what the false token was nor in whose name it was used But Roll chief Iustice took another exception viz. that the Endictment was that the Defendant did the fact nuper and that is so general a word that no answer can be given to it And for that it was quashed Twigg against Roberts Mich. 24 Car. Banc. Reg. Hil. 22 Car. rot 956. AN Action of Debt was brought against an Executor in Bristow upon a Custom of concessit solvere by him to pay a Debt due by the Testator upon a simple contract and a verdict and a Iudgement for the Plaintiff Error to reverse a Iudgment in Debt against an Executor The Defendant brought a Writ of Error in this Court to reverse the Iudgment and the Error assigned was that the custom of bringing an Action of Debt upon a concessit solvere is not a good custom Custom Wager of Law because it hindrers the party to wage his Law as by the Law he may do Walker of Councel with the Defendant in the Writ of Error argued that it was a good custom because the party is not thereby hindred of a tryal and there are customs in London which are against the Common Law as for example for the Recorder to give Iudgement upon an exigent The Court desired to see the book and to have presidents brought them And said This Custom had been allowed against the party that made the contract but the doubt is whether it be good against an Executor for a concessit solvere is without any consideration And Roll chief Iustice said that this custom doth break three rules of the Law Barker against Denham Mich. 24 Car. Banc. Reg. Trin. 23 Car. rot 1280. BArker brought an ejectione firmae against Denham Special verdict in an Ejectione firmae and upon not guilty pleaded an issue was joyned and the reupon a special verdict was found that by the Custom of the manour whereof the Lands in question were held a Copyholder might surrender his Copyhold out of Court into the hands of two customary Tenants to the use of another and at the next Court the party to whose use the Copyhold was so surrendred used to be admitted and That there was such a surrender made here but that the party to whose use the Copyhold was so surrendred dyed before the next Court and so was not admitted The question was whether he dying before his admittance shall be said to be a Copyholder by the Custom of the manour or no. Descent Hales Argued that he is not a Copyholder within the Custom and then if this Custom hinder not the Lands shall descend according to the rules of the Common Law for so is it of all Copyhold Lands if a speciall custom hinder not and here 1. the words of the Custom are to be considered and 2ly Custom how they are to be expounded and for this he cited 49 E. 3. f. 19.22 E. 3.2 E. 4. f. 24. A Custom shall be construed according to the Common apprehension of the lay gens and a Custom shall be interpreted according to the most effectual operation of the Law 3 H. 7.5 Doct. and Stud. 48.21 H. 7. f. 33.44 Ass f. 10.4 H 8. Dyer 28. A denyal actual by a Copyholder to pay his rent is a forfeiture Forfeiture not an implicative denyal lib. intrat f. 238. And by a surrender of a Copyhold before admittance the surrendree hath no real possession and the heir of a Copyholder before his admittance holds by the Copy of his Ancestor and so he hath title but the surrenderee can have no title before admittance Title and he cited Rawlins and Iones his case and Spurlins case A surrender before admittance is but a a consent of the party to part with the estate but passeth it not and after administration it should have no relation to the surrender Twisden for the Defendant Relation 1. He agreed that a Copyholder before admittance is not perfect in his Estate but yet the admittance shall relate to the surrender and both shall be accounted one entire Act contrary to other learnings 2ly The Son is in by descent and the descent must be ruled by the custom and he is now
him out of any County to the Courts at VVestminster notwithstanding the Statute Hamond against Kingsmill Pasc 1649. Banc. sup HAmond a Iustice of peace brought an Action upon the Case against Kingsmill Arrest of in an action â—â—r words for speaking these several words of him viz. Mr Hamond did of his own head put into Mores confession that he stole the Lambs And 2ly That he was a debauched man and is not fit to be a Iustice of Peace Vpon not guilty pleaded and a verdict for the Plaintiff The Defendant moved in Arrest of Iudgement that none of the words were actionable or at least the last words are not and so Iudgement cannot be given For the first words he said they ought to be taken in mitiori sensu and they may have a good construction viz. that he framed the confession without being helped by any other body And for the second words that he was a debanched man they cannot touch his office at the present Mich. 24 25. Eliz. C. Banc. 1. because they are spoken in the preterperfect tence not in the present tence The Court said that the words was a debauched man are incertain words Therefore take Iudgement for the first words and nil capiat per billam for the second except cause shewed to the contrary Iennings against Lee. Pasc 1649. Banc. sup IEnnings brought an Action of Assault and Battery against Lee For a repleader because an immaterial issue joyned The Defendant pleaded non cul to the Battery and pleaded a special justification as to the Assault It was prayed there might be a repleader granted because the issue joyned is immaterial The Councel on the other side prayed for Iudgement Wild held that there is an Issue joyned for the Record faith so and the Iury have found the Issue and if it be ill it is not helped by the Statute and so there can be no Iudgement All issues are not joyned by an expresse affirmative and an expresse negative for if it be but by implication it is good enough An immaterial Issue is not helped by the Statute but an informall issue is helped and here the issue is immaterial 32 Eliz. Lovelace and Griffin rot 934. Trin. 22 Car. Coles case rot 932 Banc. Reg. 23 Car. More and Clipson and prayes for a repleader Serjeant Parker on the other side said the cases cited were not to the purpose as to the Case at the Bar for here is a good issue joyned to one thing pleaded if not to the rest Roll chief Iustice held that where there is an immaterial issue there ought to be a Repleader and it is not helped by the Statute and there can be no Iudgment for the matter is not putin tryal Repleader and for this cause it would be unreasonable to give Iudgement Ieofail Issue and this is an immaterial issue Trin. 9 Car. entred Mich. 8 Car. rot 366. Tayler and Sparks an affirmative and an implyed negative make a good issue though it be not an express negative Therefore replead Hurd against Lenthall Hill 1649. Banc. sup Entred Mi h. 1649. rot 568. VPon a special verdict in an ejectione firmae Question upon the words of a will whether a joyntenancy or a tenancy in Common The Case upon the words of a Will was this Lands were devised to two daughters equally to be divided and to the Surviver of them and to the Heirs of the Body of the Surviver of them Maynard held that here is a joyntenancy because otherwise the Will cannot take effect in all parts Hales held that there is a tenancy in Common and not a joyntenancy nor any crosse remainders Roll Chief Iustice said That the words equally to be divided in a Will Ioyntenant Tenant in common do make a tenancy in Common by construction but in a grant it would be otherwise but here upon the entire Will it doth not appear that the Lands should be divided but that there should be a Surviver And the Land was intended for a security for a portion and that the devise should stand till the monyes should be paid And in a Will the last words of it do explain the first words but it is not so in a grant Will. Grant All the Iudges agreed in opinion with the chief Iustice and Iudgement was given for the Plaintiff nisi causa c. Pasc 1649. Banc. sup THe Court was moved for a Certiorari For a certiorari to the Lord Maiors court of London Certiorari to the Lord Maiors Court of the City of London to remove an information exhibited in that Court against a Woodmonger of London grounded upon an Act of Common Councell The Court answered we cannot do any thing in it if it should be removed hither if it be grounded upon an act of Common Councel but if the Act of Common Councell be against Law we may grant a Certiorari Adjourned till Friday next to hear Councell on both sides Lamb against Duff Pasc 16â—â— Banc. sup VPon an Affidavit the Court was enformed that Lamb had arrested Duff after a verdict found for Lamb against him to the intent For false practice that he may have him in Custody when the Iudgement is entred against him and for no other cause as appears by his own confession it was therefore prayed the party may be set at large The Court made answer that this was a strange and an irregular course and ought not to be If one take out a latitat against one and have no cause of Action against him the party may have an Action of the Case for it Case Attach nt Take an attachment if he will not discharge the party or else let him shew cause to morrow why he should not discharge him Hollingworth against VVhetstone Pas 1649. Banc. sup HOllingworth brought an Action of Debt upon a single obligation against Whetstone Demurrer to a plea in debt upon a single obligation Bar. Abatement The Defendant pleaded payment of part of the sum since the Action brought in Bar of the Action To this Plea the Plaintif demurred The Court answered the plea was not good in Bar of the Action but in abatement of the Writ it had been good Therefore let the Defendant shew cause why Iudgement should not be against him upon the demurrer Gibbon against Kent Pasch 1649. Banc. sup Pasch 24 Car. rot 60. A Writ of Error was brought to reverse a Iudgement given in the Common Pleas Error to reverse a judgement in debt upon the Statute of 2 Ed. 6 in an Action of Debt brought upon the Statute of 2. Ed. 6. for the not setting forth of Tithes The Errors assigned were 1. That it doth not appear that the Lands sowed do lye in the Parish that is laid in the Declaration 2ly The Plaintiff hath not intitled himself well to his Action for the Statute of 3â— H. 8. is taken away by the Statute of 13 Eliz. 3ly The Statute is
Iustice answered Denied It appears not to us but that the Parliament was sitting at the time and peradventure it will be made appear at the tryal Therefore plead and go to tryal and then move in Arrest of judgement if you have any thing to move Page and Parr Hill 1654. Banc. sup Trin. 1654. rot 1687. PAge brought an Action of Covenant upon a Covenant conteined in an Indenture of a demise for years Covenant upon an Indenture for the not paying the rent reserved by the Indenture according to the Covenant The Defendant pleads in bar that the Plaintif entred into part of the land demised before the rent due for which the Action was brought and so had suspended his rent The Plaintif replyed the Defendant did re-enter and so was possessed as in his former estate Suspension of ren and to this replication the Defendant demurred and for cause he shewed that here was no confession and avoidance or traverse of the plea in bar Roll chief Iustice Have you shewed that he continued in possession until the rent grew due for you ought to shew that he entred and was possessed untill after the rent-day but here you have only said that he was possessed in his former right Nil capiar per Billam Therefore nil capiat per Billam nisi Hill 1654. Banc. sup VPon an Affidavit read in Court Not to plead till costs paid assessed in a former Action that 20 l. costs were taxed upon a non-sute in an Action of Trespass and Ejectment brought to the Bar and that the Plaintif had not payed them nor was to be found and yet had brought another Action for the same land The Court was moved that the Defendant might not be ruled to plead to this second Action until the Plaintif had paid the costs taxed upon the former non sute and that another Plaintif might be named or that security might be given to pay the costs if the Plaintif should be non-sute again Shew cause The rule was to shew cause why it should not be so Hill 1654. Banc. sup DArcy moved that an Endictment of Michaelmas Term last might be amended in the Caption But Roll chief Iustice answered To amend an Endictment of a former Term denied It cannot be if it be of the last Term but had it been an endictment of this Term it might have been amended Hill 1654. Banc. sup THe Court was moved to quash an Endictment for entring forcibly upon a Tenant for years against the Statute of 21 Iacobi To quash an Endictment and the Exception was that the Endictment doth not say that he entred manu forti Roll chief Iustice answered The Statute is only that if one enter by force and the words manu forti are not expressed in the Act Therefore move it again if you will Hill 1654. Banc. sup A Habeas Corpus cum causa was granted for Elizabeth Bayne To discharge a prisoner turned over to the Mareschal For a habeas corpus ad subjiciendum to the intent to charge her with an Action and upon the return thereof she was committed to the Mareschal Wild moved that she might be discharged because the return of the Habeas Corpus is erronious But Roll chief Iustice answered It could not be whereupon he moved for another Habeas Corpus for her ad subjiciendum to be directed to the Mareschal which was granted Hill 1654. Banc. sup THe Court was moved to quash an Endictment preferred against one for practising Phisick not being skilfull in the profession To quash an Endictment for practising Phisick without licence and not having a License to practice from the College of Phisicians The Exceptions were 1. That no Endictment at the Common Law lies for the offence supposed to be committed for it is not an offence against the Common Law and 2ly an Endictment upon the Statute lies not and so no Endictment lies And upon these Exceptions it was quashed The Protector and Hart. Hill 1654. Banc. sup ONe Hart committed to the Gatehouse appeared in Court upon the return of a Habeas Corpus granted for him To remand a prisoner appearing upon a Habeas Corpus and turned over Denied and upon the prayer of his Councel the return was filed upon which it was moved on his behalf that he might be remanded to the Keeper of the Gatehouse and not turned over to the Mareschal to the intent to save his fees but the Court said it could not be because upon filing of the return there ought to be entred upon it a Committitur to the Mareschal whereby he becomes his prisoner Torret and Frampton Hill 1654. Banc. sup Trin. 1653. rot 178. VPon a special Verdict the Case was this Special verdict upon a Devise A man deviseth his lands to his wife for her life the remaindar to A. B. and C. and their heirs respectively for ever The question was whether A. B. and C. were joynt tenants or tenants in common Serjeant Twisden held that they were joynt renants Whether joynt tenancy or a tenancy in common and that this case differs from Radcliffs case and cited Wilds case in the 6 Rep. that a Will must be clear and conspicuous but so it is not here and here is no enforcement by these words respectively and they do relate to the persons and not to the lands bequeathed and a Covenant made by three respectively is a joynt Covenant and not a several Covenant and the word respectively hath relation to the survivorship which may happen betwixt the parties and a devise to one and his heir is a fee-simple Latch For the Defendant held that here is a tenancy in Common and not a joynt tenancy for the Estate ought to be whole out either a tenancy in Common or whole out a joynt tenancy and this of necessity for there cannot be a joynt tenancy for life and several inheritantes in the remainder and Littletons ground proves this to be so And 2ly It is against all construction to be otherwise as the word respectively is here placed and Ratclifs case which is not so strong a case as this case proves it to be so and although the word respectively may sometimes make a distribution of heirship as hath been objected viz. of several heirships yet here the placing of the word respectively shews it cannot be so Distribution of heirship and this using of the word is not operative but idle if here should be a joynt tenancy for the law says as much though the word respectively were left out and the word would be the more idle in explicating a thing so obvious to common understanding and no ways doubtfull and therefore we cannot think but that these extraordinary words do enforce an extraordinary construction and not a common one and an idle application and this comes not within the rule objected for the certainty for this word hath a proper meaning to make a several distribution
Hales on the other side Argued that the King shall have the trust and laid these two grounds 1. That there may be a trust raised upon the surrender of a Copyhold and 2ly that the surrender settles the trust in the Alien and cited 11 H. 4.26 and he said these things were considerable 1. Whether the King shall have any thing and what he shall have 2. Whether he shall have a use for an Alien at the Common law or a trust 3. Whether he shall have a trust raised out of a use And for the first he said that the trust was not a thing meerly in Action but an hereditament and partly in possession and cited Cooks Institutes 469. and said the reason why an Alien may not purchase lands is because that this Kingdom might not be impoverished thereby by transporting the revenues of the land into a forein Country and putting a part of it under the subjection of a forein Prince and the same reason comes to the case in question and therefore is not to be suffered and every Alien that purchaseth is said to purchase to the use of the King and so shall it be in this case and although a thing meerly in Action is not transferable to a Common person yet is it transferrable to the King but this case is stronger for the King for here is not a thing meerly in Action but mixed with an interest and it is no reason but that the law which was made to meet with the subtility of such Alien purchasors should take place here and it cannot be said that that law was made to give remedy to the King for that he had before and a Feoffment now made in trust for an Alien is all one with a use at the Common law and he cited 19. Jac. that trusts made to St. Iohn Daccombe of Annuityes for the Lord Summersett attainted of Treason were adjudged to be forfeited and he held Daccombe that there is no difference between a trust raised out of a Copyhold and other lands and if he hath an interest here in the profits the seisure is good though he have no interest in the land for the land may be seised by the profits 5 H. 5. fol. 9. Title But Rolle Iustice demanded of Hales how the King shall be intitled to the profits of the land where he is not intitled to the land it self and said that the Chancery cannot compell one to Execute a trust for an Alien Chancery and that a trust was invented only to avoid the Statute of uses and said that a trust is not a thing in Action Trust but may be an inheritance or a Chatell as the case falls out Adjourned postea White and Pynder Pasc 23 Car. Banc. reg Mich. 22 Car. rot 440. IN an Action of Trover and Conversion Demurrer upon an evidence there was a demurrer joyned upon the evidence and thereupon the Court directed the Iury to find damages for the Plaintiff if upon the argument of the demurrer the law should be adjudged for him and then the parties desired the Iury might be discharged and referred the matter to the Iudges to determine the law upon the evidence In this case Rolle Iustice took this difference to wit between pleading of a Record Record and giving a Record in evidence to a Iury. Plea If it be pleaded it must be sub pede sigilli or else the Iudges cannot judge of it But if it be given in evidence though it be not sub pede sigilli the Iury may find it Evidence if they have other good matter of inducement to prove it And the partyes in this case were advised by the Court for their own expedition to let there to be issued a venire facias de novo and to waive the demurrer upon the evidence because it was not good nor could bring the matter in question before them that they might determine it for one party saith there is a writ and the other saith there is not a writ which is bare matter of fact and not for us to determine but for a Iury and the demurrer ought to have been whether the writ be good or whether it be bad and should have admitted that there was a writ tyel quel and then had the whole matter come legally before us to wit whether the evidence given to the Iury be sufficient for them to find a verdict for the Plaintiff upon the issue joyned or not But the Court will advise Hamond and Kingsmill Pasc 23 Car. Banc. Reg. HAmond brings an Action upon the case against Kingsmill for these words Arrest of Iudgement in an Action of the Case for words spoken of him in relation as he is a Iustice of peace to wit Mr. Hamond did put in of his own head these words in an examination taken by him viz. I. S. did steal twenty sheep of such a mans and for speaking these other words of him Hamond was a debauched man and is not fit to be a Iustice of peace and hath a verdict against the defendant who moves in Arrest of Iudgement that neither the former nor the latter words were actionable for for the former words that he did of his own head put in words into the examination are words uncertain and dubious what is meant by them whether that he added any thing of his own invention to the examination which was not confessed by the examinant or that he only put the substance of the matter confessed into words of his own endicting and if he did no more that was justifiable and so it shall be taken here rather than in a worse and strained construction to ground an Action upon and for the second words to say that he was a debauched man and not worthy to be a Iustice of peace they cannot be scandalous for they are spoken of him in relation to what he was in time past before he was a Iustice of peace and not as he was at the time of the speaking and it is no scandall to say a man hath been debauched for it may be he is now otherwayes But for the first words it was answered by the Councel on the other side that they were actionable for they must be taken according to Common construction viz. that he had added not only words of his own invention to the examination but the matter it self expressed in those words which was not confessed by the examinant And as to the latter words it was answered they were also Actionable and a Case was cited where Iudgement was given against the Defendant for saying of one that he was a corrupt Iudge Rolle Iustice was of opinion Case that the first words were Actionable but not the second for words saith he ought to be taken according to usuall and Common construction though they are not to be strained for otherwise a man may be abused by subtility and shall have no remedy and Iudgement may be given
to his heir in the singular number And he argued that the word heir includes heirs because it is Nomen Collectivum Next Whether the devising the land to Richard for his natural life and after to his heir for ever makes any difference in the Case and he held it did not and said that Archers case that is objected by the other side differs much from this for there the words are restrained for it is Proximo Haeredi and not Haeredi generally as it is in our Case and there the words next heir are not words of limitation but of purchase and to decipher the person but not to limit the estate and in our case if there should not be a limitation Richard should only take for life which is not the intent of the Will as may appear by the passages and clauses of it And Thomas and Kemishes case in 5 Car. in this Court makes an end of our Case Neither doth the adding of the word in perpetuum make a difference in the Case for if the words had béen omitted the same estate had passed to the Tenant Richard and his Estate is not enlarged by them 2ly The words in perpetuum relate to all the Estate and not to any particular Estate and so the surrender made by R. Hunt is good Next of all supposing that it be a limited Estate and a contingent remainder the question will then be whether this contingent remainder be destroyed or no and I conceive it is because the particular Copyhold estate which must support this contingent remainder is destroyed and the Law is the same in that point in Copyhold cases as it is in other cases at the Common Law for Copyholds are directed by the rules of the Common Law 13 Iac. Banc. Reg. It is also held that there is the same rule to support a contingent remainder of a Copyhold as there is of Land at the Common Law Next it is to be considered whether the particular Copyhold estate be extinguished or not And it is cléer that it is for the customary Estate is in the Lord who hath the Fée simple which cannot both stand together and so there is no estate to support the contingent remainder Copyhold and consequently all objections are by this answered 1. That the surrender shall not do wrong 2ly That the surrender destroys not the Custom Turner on the other side argued that only an estate passeth to Richard for life and that the word Heir is not a word of limitation to make the Ancestor take a Fée simple neither shall the word Heir be taken Collective here but singulariter and so according to the common sence number and matter ought it to be construed And Nowns Collective in the singular number do not signifie the same thing that they do in the plurall number as may be proved by other examples and there is no proper name to signifie one particular Heir in Law if the word Heir in the singular number shall not do it Shellyes case 1. Rep. f. 101. â—ooks institut f. 8.1 Rep. Archers case And there are two Iudgements in the Common pleas in the very point as I am informed by the Attorney on our side In a Will the word Heir shall not be taken Coliective out in the natural grammaticall sence and not as a word of art but it is otherwise taken perchance in conveyances which are made by men of Art and learned in the Laws whereas wills are made commonly by lay gents and unskilfull in the Law And the rule is that words shall be interpreted to make all the parts of a déed in which they are to stand together and to bear sence and to be in esse and effectual which cannot be here if the word heir shall be taken Collective but may be if it be taken singulariter Hob. rep Stukely and Butlers case Next if the word heir should be taken Collective then the Estate for life would merge 30 El. C. B. Hill 3 Iac. C. B. Hiller and Lewis his case 3ly Rich. hath only an Estate for life if it were otherwise the Testator would have otherwise expressed it and he hath well expressed an estate for life and no other Estate in him If one grant 4. parts of his mannor it shall passe 4. parts of 5. and not all For the other poynt the contingent remainder is not here destroyed by the destruction of the Copyhold Estate for Copyhold Estates do not depend one upon another as Estates of the Common Law do and here is one in esse to take the Estate Another question he spoke to viz. whether a Lessee at will being ousted by a stranger can reenter and he held he cannot for he hath but a meer right 38 H. 6. f. 27. Fortescue and Yelverton 3. Iac. Banc. Reg. rot 501. Carpenter and Collins But to this Roll chief Iustice Entry and Nicholas Iustice answered that he may enter notwithstanding it hath been heretofore controverted and the reason is because he hath the primer posseâ—sion Roll chief Iustice enclined that the contingent remainder is not destroyed because it doth not here depend upon the particular Estate but it ought to expect till the remainder happen and he conceived that the word heir and heirs were all one here by the intent of the partyes and the frame of the conveyance Ask Iustice said that it is a good Estate of Fee simple conditionall executed in Richard Ierman Iustice The intent in a Will if it be not contrary to Law ought to be taken and there must be words to make the intent appear and these words must stand together and shall not be made void and he conceived the contingent remainder not destroyed Adjourned till the next Term. Postea Port against Midleton Hill 1650. Banc. sup A Writ of Error was brought to reverse a Iudgement given in an Action of debt upon an obligation Error to reverse a judgment in debt and the Error insisted upon was in the entring of the Iudgement which was quod recuperet Debitum suum and doth not say praedictum Roll chief Iustice answered Delivery Escrow that the debt is confessed by the party and the question is whether the deed was delivered as an escrow or not but it was delivered to the party himself and therefore could not be delivered as an escrow Ierman Iustice said that debitum suum without praedictum is not good for the word praedictum is verbum operativum Ask Iustice as Roll and there is but one debt Implication and the word ideo in the record implyes it to be the same debt Nicholas to the same effect The rule was affirmetur nisi causa die Iunae sequenti Hill 1650. Banc. sup AN administrator had a Iudgement against one to recover a debt due to the Intestate and then the Administrator dyed Intestate For a scire facias to revive a judgement denyed Scire facias and another took out new letters of administration de bonis non
and upon it the case sell out to be thus Special verdict in an ejectione firmae A having lands in see simple and also goods and chatels to the value of 5 l. only in Tavestock made his Will and devised to his wife totum statum suum viz. his whole Estate paying his Debts and Legacies and his Debts and Legacies did amount to the value of 40 l. Hales made 2 questions 1. Whether the lands passe to the wife by the Will or not 2ly If they do what estate passeth to her in the Lands For the first he argued that the lands do passe to the wife 1. Because the generality of the words do include the lands as well as the goods for the words are his whole Estate so that nothing is excluded 9 E. 4. a release of all Actions is held a release of all Actions that the party had in all his capacities 2ly The ordinary maner of spéech doth shew that he intended to devise his lands as well as his goods Riches case Mich. 45. Eliz. C. Banc. A devise of all his rents was held to passe all the partyes lands Also the subject matter in fact doth prove this to be his intent and although here is not a collateral averment to prove the intention but a collateral proof to declare the Testators intent this may be admitted to ascertain the Court of his meaning as it is in the case of proving an Act of Parliament In the Lord Cheneys case an averment standing with a Will was accompted allowable though an averment against a Will be not In Cooper and Lanes case 35 Eliz. a devise seigniori puero where the Testator had a Son and a Daughter was held a good devise to the Son although puer signifies as well a Daughter as a Son and the Daughter there was elder than the Son and Hill 8. Car. In Bartler and Rodes case in B. R. a devise of all his lands in Dale if he had leases as well as lands there passed not the leases For the 2d point he argued that a fee simple passed 1. Because his whole Estate is devised and that is to be applyed as well to the lands as to the goods 2ly Because in regard that there is a consideration for it to wit that the wife shall pay his Debts and discharge his Legacies and whereas it is objected that it is not said she shall pay all his Debts I answer that it shall be so intended Here is land and goods mentioned and not land only and it is found that the goods only are not sufficient to pay the Debts and also the goods were liable to the payment of the Debts without this expression in the Will and therefore the land must be intended to be devised And for the verdict it is not material to find the lands to be held in socage for they shall be intended to be so held because it is the most antient Tenure for where the Law creates a Tenure it shall be socage Tenure 2ly Lands may possibly be deviseable although they be not held in socage for if they be neither held by socage nor chivalry yet they are deviseable Dyer 307. Neither is it material to find the Debts and Legacies paid for it is a condition here an not a limitation and there is a person to take advantage if the condition be broken this is a special verdict the breaking of the condition if it had béen broken would have appeared upon evidence therefore it is not necessary to aver it it is in case of a Fee simple which is an Estate intended to continue Devise Roll chief Iustice held that the lands did passe for so he said the common understanding imports and the words do go to the value of the estate 1. It comprehends the thing to wit the land 2ly The extent of the Estate given viz. Fee simple and so it shall be here intended and the words paying his Debts and Legacies doth enforce this construction for they are to be paid presently which cannot be if the lands passe not in Fee and so the aberment it is but to supply the meaning of the Testator and stands very well with the Will and is not so collaterall as it is in Cheyneys case And for the verdict the lands shall be intended to be socage lands Intendment as being the most Common Tenure except the contrary were shewed on the other part Denham and Bakers case Mich. 24 〈◊〉 entred Trin. 23. rot 12.80 and the words paying his Debts and Legacies are words of condition and not of limitation Ierman ad idem and said Condition̄ Limitation when we say a man is a man of a great Estate we mean his Estate in lands as well as goods Nicholas and Ask Iustices to the same effect but Ask said he doubted of the verdict because no Legacies are found and this is part of the case Iudicium pro querente nisi Antea Pickering and Emma Trin. 1651. Banc. sup EMma obteined a Iudgement against Pickering For a supersedeas upon an audita querela brought and had satisfaction upon it and gave a release to the Defendant yet afterwards takes out a capias ad satisfaciendum against him whereupon he brings his Audita querela and moves the Court that he may have a supersedeas to the capias ad satisfaciendum The Court desired to see the release and upon view thereof The rule was that the party should proceed in his audita querela but said they would grant no supersedeas because the release was ambiguous Custodes c. against Rivett Trin. 1651. Banc. sup VPon a rule of Court to shew cause why an Attatchment should not be granted against one Cause why an Attatchment should not be granted for proceeding to a tryal in an iuferior Court notwithstanding a habeas corpus directed to remove the cause An Affidavit was made that the proceeding to tryal was because it was supposed the habeas corpus was against the Statute of 21 Iac. The Court answered you ought to have returned this matter upon your return and not to have proceeded against the habeas corpus but let the Secondary examine the matter and then move again Return But it is dangerous to execute the Iudgement if the Statute be not against the habeas Corpus The Custodes against my Lord Morley Trin. 1651. Banc. sup THe Court was moved on the behalf of the Lord Morley for a Certiorari to remove an Endictment preferred against him at the Sessions of Peaco at Hicks Hall upon the Statute against hearing of Mass For a Certiorari to remove an Endictment The Court answered that they would advise but that they did not see how a Certiorari could be granted at the prayer of the party but they said at the prayer of the Councel for the State it may be granted Baker against Smith Trin 1651. Banc. sup BAker brought an Action upon the Case against Smith and
be undestood eight hangings Roll chief Iustice A pair is properly when one of the things so called cannot be properly used without the other but yet the words may be also understood so many couple and here you cannot intend the words to mean so many suits of hangings and you might have expressed your meaning by so many pieces of hangings and therefore it seems doubtfull Ierman Iustice Here the words do not expresse the number of the things as they do when you say a pair of Oxen or the like Nicholas as Ierman Ask Iustice A pair is incertain for that word may be meant more than two in number as when you say a pair of cards and a pair of hangings in some places is meant a suit of hangings Roll chief Iustice If it be so then it is more incertain the word hangings may be good enough but how can the number be known Curia advisare vult Afterwards the Court moved the Defendant to suffer the Plaintiff to amend his Declaration and to plead anew and to consent to a new tryall Askwiths Case Hill 1652. Banc. sup THe Court was moved to quash an order of Sessions made at Durham against Askwith Motion to quash an order of Sessions for not serving the office of a Constable or finding an other able person to serve the place for him being elected according to the custom of the place where he was elected to serve The Exception taken was that it is not shewed that he was elected at a Court Leet and the Sessions have no power to elect a Constable Roll chief Iustice He is a Constable elected by a by-Law By Law it is not necessary there should be any other election then according to the custom and he must serve in his turn or contribute to the charge for another to serve for him Custom and this is a good custom used in many places and I do find one my self in my turn in one place and make no use of my privilege to avoid it Another exception was taken that the complaint made of the party was that he would neither serve the office nor contribute for another to serve it and the order is only that he refused to contribute and so is not warranted by the custom by which he hath an election to serve or contribute Quashed nisi c. Hill 1652. Banc. sup A Prisoner was brought into Court by a habeas corpus out of the Fleet to the intent to turn him over to the Marshalsea to charge him with an Action here Creditor examined upon oath it his debt were reall whereupon the creditor was examined upon his oath whether the debt was real for which he surmised he would bring his Action and upon making oath thereof the Prisoner was turned over accordingly Nota. Smith against Holyman Hill 1652. Banc. sup IT was moved in arrest of Iudgement in an Action upon the case upon an Assumpsit Arrest of Iudgement in Assumpsit False English and Exceptions taken 1. That the Defendants Christian name was mistaken And 2ly That the jurata was erroneous for it says in a plea of dept instead of a plea of debt and the Iudgement was arrested for dept written with a P. is no word though it sound like debt written with a B. Custodes and Howell Gwin Hill 1652. Banc. sup HOwell Gwin was brought to the Bar being convicted for forgeing of a deed Iudgement against one convicted of forgery and was demanded what he could say why Iudgement should not be given against him Boynton of Councel with the Prisoner moved the Court that in regard there was an information of perjury depending here against the witnesses upon whose Testimony the Prisoner was convicted of the perjury and that the Prisoner doth endeavour to proceed with all the speed that is possible against them in this information that the Iudgement may be stayed in the mean time against him Roll chief Iustice answered if they be found guilty of the perjury they shall be punished but we will give Iudgement against your Clyent in the mean time which was done accordingly in these words following Iudgement for forgery viz. you are convicted of forgeing a deed by putting a dead mans hand unto it therefore the Court gives this Iudgement against you that you are fined at a hundred pound and shall stand on the pillory two hours before the Hall dore with a paper on your head shewing the nature of your offence Memorandum the party cut off a dead mans hand and put a pen and a seal in it and so signed and sealed and delivered the deed with the dead hand and swore that he saw the deed sealed and delivered Mich. 1652 Banc. sup MRs. Lucy Fotherby was brought into Court to be turned over into the Marshalsea out of the Fleet with an intent to charge her with an Action of debt Against this it was urged that she was a Prisoner in the Fleet A Prisoner turned over committed thither by an order of the Court of Chancery Prisoner But Roll chief Iustice answered this order is nothing to hinder her turning over if the debt be reall and so upon proof that the debt was reall she was turned over Locky and Dumiloe Hill 1652. Banc. sup Hill 1650. rot 1462. VPon a special verdict in an ejectione firmae the case fell out to be this Special verdict in an ejectione firmae I. S. seised of lands in Fée makes a lease of it to I. D. at Will A. B. puts the Tenant at Will out of possession and after the Tenant at Will enters and takes a lease at Will of him that put him out of possession the question was whether he should hold the land by virtue of his first lease or by virtue of his second agreement To this Roll chief Iustice said if one make a lease at Will to one and he be ousted Will. Determination and then enter again and take a new estate the Will is determined but a stranger cannot determine his Estate without his consent but here he hath determined his first Estate by his new contract with the disseisor of his Lessor And he said if Livery and Seisin be made upon one Acre of land in the name of two Acres it is good for both the Acres for it is not necessary that the party that gives the livery should go to all the land mentioned in the deed of Feoffment Livery and Seisin And he also said that if Tenant at Will cuts down a tree upon the land which he holds at Will by this Act he hath determined his Will Drake and Drake Hill 1652. Banc. sup DRake brought an Action against Drake for these words Arrest of Iudgement in an Action for words viz. Thou hast preached lyes in the Pulpit the Plaintiff being a master of Arts and incumbent of a living Wadham VVindham held the words actionable because they were spoken of the Plaintiff in relation to his
secrets of his Clyents cause Not to disclose a Clyents cause and thereupon he was forborn to be examined Pilkinton and Bagshaw Pasch 1655. Banc. sup VPon a tryal to be had at the Bar between Pilkington and Bagshaw Tryal at the Bar. the Plaintif would not put in his writ that the tryal might goe on Whereupon Roll chief Iustice bid the Cryer to call the Attorney of the Plaintif to appear and to bring in the writ upon pain of 20 l. and said Pain of 20 l. Attorney put out of the Roll. Non-sute upon the Record that if he brought it not in he should be put out of the Roll. Serjeant Maynard moved that if he brought not in the writ that the Plaintif might be called non-sute upon the Record which Roll chief Iustice answered might well be because the parties have day in Court by the Record or Roll afterwards the Sollicitor who had the writ brought it in yet Roll chief Iustice said There shall notwithstanding the writ be brought in be 20 l. fine set upon him for his trifling with the Court. The Protector and Sumner Pasch 165â— Banc. sup SErjeant Bernard moved that Sumner that appeared in Court upon his habeas corpus directed to the Kéeper of Northampton Gaol might be bailed To bail a prisoner denied for that having killed two men upon the Highway the Iury had found it Man-slaughter se defendendo Roll chief Iustice answered The Iuries conclusion is contrary to their premises Therefore let the prisoner be sent to Northampton Gaol whence he came yet that may not be for the fact was done in Peterborough Tryal Writ ad reâ—piendum and therefore he cannot be tryed at Northampton therefore let him be sent to Peterborough Gaol with a writ ad recipiendum to the Gaoler there to take charge of him Pilkington versus Bagshaw Pasch 1655. Banc. sup IN a Tryal at the Bar in a Trespass and Ejectment betwixt Pilkington and Bagshaw Trespass and Ejectment the question being whether Copyhold lands may be entailed by the custom of the Manor It was said that if Tenant in tail and the issue in tail of Copyhold lands in tail joyn in a surrender in a Court Baron of the Copyhold lands Estopel Copyhold lands in tail Customary entail Fine State enjoyed Seisure of Cepyhold lands that this is not an estopel for it ought to be by fine or deed indented And Roll chief Iustice said that Copyhold lands in tail are not within the Statute of Westm 2. but it is a Customary entail like in its nature to another entail and such an estate must be docked by fine or by some other customary way It was also said by him that if Copies of Court Rolls be shewed to prove a Customary estate the enjoynment of such estates must also be proved otherwise the proof is not good It was also said upon the evidence That a seisure by the Lord made of Copyhold entailed lands within the Manor of Wakefield in Yorkshire is in the nature of a recovery to deck the entail and that the manner of doing it is either for the Copyholder to let his Copyhold for more years than he ought or to refuse to do his service and then the Lord seifes the lands for a forfeiture and grants it to another by the consent of the Copyholder that made the forfeiture It was then also said by Roll chief Iustice Custom that a Custom cannot be urged for a thing that had its beginning since Rich. the 1. if a Record can be shewed to the contrary Common recovery Recompense in value Custom Copyhold destroyed It was also said by him that a common recovery suproseth a recompence in value to all persons who lost the estate by the recovery He said also that he conceived that there could be no such Custom to cut off entails of Copyhold lands by the forfeiture and seisure of the Lord for his seisure upon the forfeiture destroys the Copy-hold estate by the Common Law for it is in the Lords election after the seisure whether he will grant the estate again or no and you do not prove that the Custom binds him to it Nota. Harris and Pasch 1655. Banc. sup THe Court was moved in the Case of one Harris To amend an old judgement Denied that the entry of a judgement twelve years past might be amended upon the Roll. But Roll chief Iustice answered It cannot be after so long time past Pasch 1655. Banc. sup VPon a writ of Error brought to reverse a fine levied by an Infant being a Feme Covert Day to inspect an Infant The Court was moved for a day to bring in the party that levied the fine to be inspected by the Court which was granted and at the day she was brought into the Court and viewed and two witnesses deposed that she was within age at the time of the fine levied Entry upon the Roll. which was entred upon the Roll upon which the Issue was tryed Pasch 1655 Banc. sup IT was said by Roll chief Iustice Election That if there be two Kinsmen in equal degree of kindred to the Intestate it is in the election of the Ordinary to which of them he will grant Letters of Administration Pasch 1655. Banc. sup AN Outlawry was reversed Outlawry reversed because the place where the County Court was held is not shewed in the secundo exactus Pasch 1655. Banc. sup IT was moved that there was a judgement given in the Common Pleas To affirm a judgement a writ of Error depending and thereupon the Defendant brought his writ of Error to reverse the judgement in this Court and since pending the writ of Error the partses were agréed and therefore they desired the judgement might be affirmed because that otherwise satisfaction of the judgement cannot be acknowledged upon the Roll because the Court of Common Pleas were forclosed to do any thing further upon the judgement given there by reason of the writ of Error But Roll chief Iustice answered It cannot be Denied for you shew no cause why we should affirm the judgement and therefore we will make no rule in it but enter satisfaction upon the Roll if you will at your own peril Pasch 1655. Banc. sup IT was said by Roll chief Iustice that an Action upon the case will lie against one that brings vexatious actions against another Action upon the Case for vexation or for entring of Actions of a great value to force his adversary to put in great bail where he hath but small cause of Action Nota. Trevanian and Penhollow Trin. 1655. TRevanian brought an Action upon the case against Penhollow for speaking of these words of him Plea to an Action on the Case Thou hast taken a false Oath at the Assizes and art false forsworn The Defendant pleads that the Plaintif had agréed to accept of 3 Iuggs of Beer from him in satisfaction The Plaintif
to the surrender or otherwise the admittance is not good Thurle and Madison Mich. 1655. Banc. sup IN a Tryal at the Bar between Thurle and Madison Enrolment of a Deed. It was said by Glyn chief Iustice that if divers persons do seal a Deed and but one of them acknowledge the Déed and the Déed is thereupon enrolled this is a good enrollment within the Statute and may be given in evidence as a Deed enrolled Evidence at a Tryal It was then also said that if a deed express a consideration of money upon the purchase made by the Deed yet this is no proof upon a tryal Consideration that the monies expressed were paid but it must be proved by witnesses MEorandum Copy proved That upon the same Tryal an Act of Parliament produced in point for the selling of Delinquents estates was sworn to have been examined by the Parliament Roll and that it was a true Copy before it was read in evidence Nota. VVood and Gunston Mich. 1655. VPon a motion for a new tryal between Wood and Gunston Memorandum New tryal for miscarriage of the Iury. upon a supposition of excessive damages given by the Iury in an Action upon the case tryed at the Bar for words viz. Calling the Plaintif Traytor c. 1500 l. being the damages given It was said by Glyn chief Iustice that if the Court do believe that the Iury gave their verdict against their direction given unto them the Court may grant a new Tryal And a new Tryal was gronted in this Case after a full debate had by Councell on both sides Culliar and Iermin Mich. 1655. Banc. sup CUlliar brought an Action upon the Case upon a promise and declared Arrest of judgement upon a promise that the Testator of the Defendant in consideration that the Plaintif would mary such a Woman did promise that he would leave him half his Estate at his death and thereupon he did mary the party and yet he did not leave him half his estate at his death Vpon a verdict found for the Plaintif it was moved in arrest of judgement that the Declaration was not good for whereas the promise was that the Defendant should leave him half of all his estate which might be intended both of his real and also of his personal Estate and of any estate in reversion as well as of an estate in possession the Plaintif only says that the Testator died worth 3000 l. in possession and that he did not leave him half of that estate and it may be he left him part of his real estate or estate in reversion to the full value of half his whole estate But Glyn chief Iustice disallowed the exception and gave judgement for the Plaintif Iudgement Lance and Blackmore Mich. 1655. Banc. sup Hill 1654. rot 191. LAnce an Executor brought an Action upon the Case against Blackmore Arrest of judgement in an Action upon the Case upon a pro and declared that in consideration that the Testator would suffer the Defendant to enjoy such a Close of land the Defendant did assume and promise to pay 53 s. a year for the rent thereof for so long time as he should enjoy it and for so much rent due for it for so long time in the Testators life time and for so much rent due since his death he brings the Action Vpon non assumpsit pleaded a verdict was found for the Plaintif and entire dammages given It was moved in arrest of Iudgement That an Action of the Case doth not lie it being for the non-payment of rent which follows the nature of the land and doth sound in the realty for which a personal Action lies not 2ly Here doth not appear by the Daclaration Personal act on Consideration to the any consideration to ground the promise upon for the Declaration is that if the Testator in her life time would permit the Defendant to enjoy the Close then c. and it is not averred Averment that the Testator did in her life time suffer the Defendant to enjoy the Close Glyn chief Iustice If a promise be made to the Testator the Executor may have an Action Executor and it is a good consideration as to him for the executor is representative of the Testator And 2ly An Action upon the Case will not lie for rent upon a promise in law but upon a special promise of the party to pay it Promise in Law Special as our Case is it will lie Ingram and Fawset Mich. 1655. Banc. sup IN this Case it was said by Glyn chief Iustice Administratâ—r must shew how Administrator That if an Administrator bring an Action against an Administrator it is not necessary for the Plaintif to shew by whom the letters of Administration were granted unto the Defendant but he must shew by whom the letters of Administration were granted to himself to entitle himself to the Action for if it appear not to the Court that he is Administrator he cannot sue by that name Mich. 1635. Banc. sup IT was said by Wild and agreed by Whitwick one of the Masters of the Vpper Bench office How far special bayl is lyable for the principal that if an Attorny do appear for one in the Vpper Bench special bayl is entred for his Clyent to that Action that that Bayl is not bound to stand Bayl to all other Actions that shall be declared in against the party upon the by but the Attorny for him is bound to appear for him in all such Actions and to put in Common bayl Wagstaff and Tempest Mich. 1655. Banc. sup IT was said by Glyn chief Iustice upon evidence given in a Tryal at the Bar Dispensation with a forfeiture of an Estate bayl between VVagstaff and Tempest that if tenant for life do levy a Fine of the Lands he is so seised of whereby he should forfeit his estate yet if he in the remainder will joyn with the Tenant for life in declaring the uses this is a dispensation with the forfeiture and Le Gay Mich. 1655. Banc. sup THe Court was enformed For a time to accompt before Auditors that in an Action of Accompt brought there was a verdict that the Defendant should accompt before Auditors and that Auditors were assigned and the parties were now before the Auditors and thereupon it was moved on the Defendants part that this Court would grant him time to accompt for the reasons alleged But Wild answered that it was not proper to move here for the Auditors are now Iudges of the matter Auditors Iudges by the Statute and may give time if they see cause To which Glyn chief Iustice agreed and said the Auditors are Iudges by the Statute and therefore move before them and trouble not us with it Sergeant Bradshaw and Procter Mich. 1655. Banc. sup IN the Case of Sergeant Bradshaw and Mr. Procter of Grays Inne Challenge to an array no part of
her true and natural complexion I need not say any thing in commendation of the Common Laws they do so sufficiently and clearly speak their own worth not only in our own land but even through the Christian if I may not say the whole known world The fruit that every one from him that sits on the Throne to her that grindeth at the Mill throughout this nation in the tender preservation of our Religion Lives Liberties and Properties do lowdly proclaim their excellency and do justly claim our reverent esteem of them and their sweet influence which our Neighbour Nations do partake of from their light and heat hath purchased an honourable name and repute amongst them Though no doubt but other Kingdomes and Republiques have many excellent written and established Laws sutable to the particular constitutions of the people and to their several frames of government and amongst the rest the Civil or imperial Laws yet they all want many remarkable excellencies that are in the Common Laws of England and the proceedings therein and amongst the rest to instance in no more they are very deficient in this way used in our Law for many ages past of reporting and leaving to posterity the learned arguments of councel at the Bar and of the grave and profound resolutions of the reverend Iudges in the decision of Cases arising and controverted amongst us and this way how sightly soever it be now esteemed of by many amongst us yet is by Strangers much valued and was heretofore so much set by amongst us and thought so highly advantageous to the publique that the wisdome of this State did then think fit to appoint grave and judicious men encouraged by an annual stipend to attend and perform this task and therefore I hope that he who hath undertaken this hard labour freely and voluntarily in relation to the publique good without hope of reward is so far from deserving blame and reproof that he is rather to be cherished and countenanced in these his endeavours by those in authority and not to be rashly and uncharitably calumnicated or censured by any but to be favourably interpreted and received as one that makes it his aim to be accompted a true lover of the Common Laws and really honoureth the profession and Professors thereof Inner Temple May the 19th 1658. William Style An Alphabetical TABLE OF THE NAMES OF THE CASES A SIr Maurice Abbots case Pag. 13 14 Abbot and Vaughan Pag. 450 Acton and Ayres Pag. 346 Adston and Hunter Pag. 206 Allen and Reeve Pag. 88 Allens Case Pag. 255 Allen and Holden Pag. 287 288 Andrews Case Pag. 9 Andrews and Baily Pag. 139 Count Arondels Case Pag. 26 Count Arondel Shandois case Pag. 371 372 Archer and Holbidg Pag. 185 Arnold and Floyd Pag. 473 476 Sir Anthony Ashly Cooper and St. John vid. C Ashby and Child Pag. 384 Ashworth and Sir Tho. Stanley Pag. 364 Askwiths case Pag. 362 Atwood and Monger Pag. 378 379 Atlee and the Lady Baltinglass Pag. 475 Avery and Kirton Pag. 175 176 Aylet and Stellam Pag. 100 Aylet and Oates Pag. 121 125 Ailet and Watless Pag. 246 Ayre and Sills Pag. 131 Ayre and Pimcomb Pag. 164 Ayre and Hawksworth Pag. 382 B BAcon and Ramsey Pag. 460 Barnaby and Goodale Pag. 1 2 Basely and Basely Pag. 16 Barker and Martyn Pag. 19 37 Barly and Martyn Pag. 20 Barrets case Pag. 23 Baker and Edmonds Pag. 62 63 Banister and Wright Pag. 137 Barlyes case Baker and Denham Pag. 145 146 Barber and Pomeroy Pag. 175 Barnewell and Grant Pag. 190 Bambury and Basely Pag. 160 161 180 181 182 195 196 197. Barmeston and Gale Pag. 213 Bernard and Levit Pag. 227 Barcock and Tompson Pag. 281 288 323 324 Batisford and Yates Pag. 195 Batchellour and Parsons Pag. 292 293 Baker and Smith Pag. 295 303 304 Barnard and King Pag. 306 307 Bainton and Cheeke Pag. 353 354 355 Baker and Andrews Pag. 357 358 Barjar and Windham Pag. 385 Barker and Elmer Pag. 412 Banisters case Pag. 405 Baxters case Pag. 35 Bankes and Pratt Pag. 420 421 428 Barker and Weston Pag. 425 Baker and Ramsey Betsworth and Betsworth Pag. 10 Beal and Wyman Pag. 240 Benskin and Herrick Pag. 388 Bennet and the Hundred of Hartford Pag. 233 Bedwell and Fenwick Pag. 393 394 Bigford and Topsam Pag. 209 Bird and Christopher Pag. 389 Bishop and Fitzherbert Pag. 298 Boomer and Pate Pag. 32 Boone and Sheeres Pag. 79 Bowes and Broadhead Pag. 155 Bolton and Wills Pag. 214 Bowles and Clark Pag. 228 Boomer and Cleve Pag. 231 Bois and Cranfield Pag. 239 Booth and Lambert Pag. 276 277 Bowyer and Tantulyar Pag. 155 Boyle and Scarborow Pag. 395 396 440 441 442 443 444 Bocking and Symons Pag. 400 Bond and Martyn Pag. 353 Sir William Bronkers case Pag. 16 Burnet and Bird Pag. 54 Burwell and Lancaster Pag. 109 Burges and Dinham Pag. 114 115 Butler and Long Pag. 117 Burraston and Herbert Pag. 155 Burton and Low Pag. 212 213 233 Buckston and Shurlock Pag. 340 Busfield and Norden Pag. 471 Burrel and Lancastre Pag. 109 Burcher and Orchard Pag. 349 350 Bunnyworth and Gibbs Pag. 419 Blackwell and Ashton Pag. 50 Blackden and Harvey Pag. 220 Bronge and More Pag. 428 Broome and Evering Pag. 8 Sergeant Bradshaw and Procter Pag. 464 Bruer and Southwell Pag. 27 58 63 Brooke and Brooke Pag. 61 Brereton and Monington Pag. 115 Bragg and Nitingall Pag. 140 141 Browne and Poynes Pag. 147 Brook and Hogg Pag. 164 165 Brooke and Brooke Pag. 170 171 Brungy and Lee Pag. 178 Bryan and Stone Pag. 239 Browne and Nelson Pag. 317 318 Bryan and Twite Pag. 328 Brock and Vernon Pag. 339 340 Brightwell and Robson Pag. 368 369 Bromefield and Williamson Pag. 407 408 Bynion and Trotter Pag. 231 Byron and Stonehowse Pag. 328 329 C CApell and Alleyne Pag. 49 Carver and Pierce Pag. 66 73 Castle and Dynely Pag. 92 93 Cages case Pag. 129 Cave and Oseby Pag. 156 Carew and Bawd Pag. 167 168 Cane and Golding Pag. 169 170 176 177 Cater and Startuâ—e Pag. 217 Cane and Pell Pag. 229 Cage and Dod Pag. 233 234 Cantrell and Stephens Pag. 300 Sir Charls Coot and Plunket Pag. 125 Cook and Fincham Pag. 18 Cooke and Alleyne Pag. 20 Conesby and Fairefax Pag. 23 24 Colson and Bedloe Pag. 58 Cornish and Cowsye Pag. 118 119 Collins and Page Pag. 124 125 Coles and Sibsey Pag. 156 178 Compton and Alleyne Pag. 162 Coswells case Pag. 182 Colson and Rea Pag. 195 Cooke and More Pag. 195 Sir Anthony Ashley Cooper and St. John Pag. 130 131 Cowlye and Lockton Pag. 205 Coleman and Blunden Pag. 255 Collyns and Syllye Pag. 265 Cotterel and Theoballs Pag. 297 298 313 314 Comport and Beech Pag. 214 Cooks and Chambers Pag. 439 440 Conye and Lawes Pag. 472 473 Curtice and Columbine Pag. 19 20 Cutsworths case Pag. 153 154 Custodes and Outwell Newton and Tyd Pag. 178 179 180 184 185 191 192 Custodes and Montague and Lydall
the tryal good without it and thereupon day was given to shew cause why the Iudgement should not be aâ—firmed Pasch 23 Car. the Iudgement was affirmed Andrews Case Hill 22 Car. Banc. Reg. A Recognizance was acknowledged at Serjeants Iune in Fleetstreet Where a Scire facias upon a recognisance shall be brought and delivered and enrolled at Westminster The Court held that it was at the election of the Recognisee to bring his Scire facias either in London where the Recognizance was acknowledged or in Midlesex where it was delivered and enrolled But adjourned Afterwards viz. Pasc 23 Car. the Court held that the Scire facias ought to be where the recognizance is taken and not where it is recorded for there it begins to be a Record but this being in the Common Pleas it was good both ways and thereupon the party had his judgement Rooke and Knight 22 Car. Mich. Mich. 22 Car. rot 381. A Iudgement given in the Court at Dym Church Demurrer to a Scire facias upon a judgement removed out of the Cinqne Ports by Certiorari in the Kings Bench. a limb of one of the Cinque Ports was removed by a certiorari into the Kings Bench and thereupon issued a Scire facias for the Defendant to shew cause why the Plaintiff should not have execution upon the judgement to this the Defendant appears and demurs and takes these exceptions 1. That it is not expressed where Dim Church is 2ly In the retorn of the alias certiorari it is said sicut prius and not sicut alias 3ly the Sheriff in the reforn is not namned Knight and Baronet neither doth he name himself by his name of Baptism and Surname But the Court did over-rule all these exceptions and gave judgement for the Plaintif AN action of the Case was brought for these words Action upon the Case for words Thou hast stoll'n my wood and the Court inclined the words were actionable but not if he had said thou hast stoll'n my Trees and it was said that a precipe will lie of a wood for it shall be intended of woody ground adjourned Pracipe Helliar and Grace his VVife Pasch 23 Car. Banc. Reg. AN action upon the Case was brought by Helliar and his wife Action upon the Case upon an Assumpsit upon a promise made unto them during the Coverture and it was moved a verdict being given for the Plaintifs in arrest of judgment that the Action ought to have been brought in the name of the Husband only and not by the husband and wife and a case to prove it was cited out of Dyer Dyer 91. and upon this exception the judgement was arrested till the other should shew cause to the contrary And in this case it was said by the Court that if an Obligation be made to baron and feme that it is the better opinion Joynt action that the baron may bring an action upon this obligation in his own name only and not name his wife or else he may at his election bring the action in the name of himself and his wife joyntly Betsworth and Betsworth Pasch 8 Maii 23 Car. Banc. Reg. It was moved for a Prohibition to the Prerogative Court upon a surmise that the party did endeavour to barstardise one that was legitimate But the other party answered that the surmise was not true and urged that the sute in the Praerogative Court was only Prâ—hibition to the Praerogative Court whether Letters of administration were by them well granted or no and not concerning Bastardy as the surmise sets forth and therefore desires the Prohibition may not be granted and for confirmation thereof the case was put which was this Betsworth had a wife called Bridget who died after he takes another wife called also Bridget and dies intestate Bridget the second wife takes Letters of administration of the goods and chatels of her husband deceased the son of Betsworth sues in the Praerogative Court to repeal these Letters of Administration upon pretence that Bridget the first wife of Betsworth was yet living In this case the Court delivered these positions following Jurisdiction 1. That one ought not to sue in the Ecclesiastical Court to Bastard an issue Ordinary but at the Common Law 2. Where the Ordinary hath granted Letters of Administration to one that ought to have them they ought not to be repealed by them 3. Where a sute is in the Ecclesiastical Court for lands and goods Prohibition a Prohibition may be granted as to the lands and they may procéed there notwithstanding as to the goods 4. That in this Case at the Bar neither Bastardy of the issue nor mariage is in question as is surmised but only the validity of the Letters of Administration Incidents and that the other things are but as incident to the matter in question 5. That wife or not wife is triable at the Common Law but whether lawfully maried or not Tryal is tryable in the Spiritual Court 6. Where a thing is tryable in the Spiritual Court and there is also a matter incident to it which is tryable at the Common Law there a Prohibition shall not be granted Prohibition Evidence 7. That a thing concluded in the Ecclesiastical Court touching lands cannot be given in evidence in a tryal at Law for Land 8. If the Common law differ from the Civil Law touching the legality or non legality of a thing if they will proceed according to their Law a Prohibition lies because the Common Law is to be preferred The rule of Court was Prohibition That a Prohibition should be granted and that the other should demur upon it and so it might be debated whether a Prohibition would lie or not and to stay in the Spiritual Court in the mean time Pasch 23 Car. Banc. Reg. ONe brought an Action upon the Case against I. S. for preferring a bill of Endictment against him Arrest of judgement in an action upon the case for stealing of a Mare and that the grand Iury found an ignoramus whereby he was discharged the Plaintiff obtains a Verdict against the Defendant The Defendant takes these exceptions to the declaration in Arrest of Iudgement 1. That it doth not appear thereby that the Party who preferred the bill of Endictment gave any evidence to the grand Iury touching the bill 2ly It appears not that the Plaintiff was bound over to answer the Felony and consequently was not molested â—y it and so he can have no Action But the Court stayed the Iudgement to another day upon the exceptions taken Case and sayed that an Action upon the Case lies for procuring one to be Endicted Endictment although the party himself do it not and that one may exhibit a bill of Endictment to a grand Iury without Oath grand Jury and they may notwithstanding find the bill and although it be exhibited upon Oath they are not bound to
the goods were found by the Baron and Feme and were converted ad usum suum whereas it ought to be in the plural number to wit ad usum eorum or ad usum of Pew and his wife for as it was it supposed the Conversion to be made only by the Husband which is contrary to the Action it self which is brought against both Upon this Iudgement was stayed till the other should move Long and Bennet 23 Car. Banc. Reg. LOng brings an Action upon the Case against Bennet and declares that he would not suffer him to take unum Acrum ligni which he had sold to him in such a place Arrest of Iudgement in an Action upon the Case After a Verdict for the Plaintiff it was moved in Arrest of Iudgement that the Declaration ought to have been unum Acrum bosci and not ligni for that was uncertain The Court said they would Advise of the exception Declaration because it was in an Action of the Case The same Term Iudgement was given because Damages only were to be recovered and the words used were but inducements to describe the thing for which Damages only were demanded yet it might have been more properly expressed Barker and Martyn Pasc 23 Car. Banc. Reg. THe Plaintiff brings an Action of Trespasse Arrest of Iudgement in an Actâ—on of Trespass and declares against the Defendant for breaking his house and taking away quinque Instrumenta ferrea Anglice Fetters and a verdict was for the Plaintiff It was moved in Arrest of Iudgement that the word Instrumentum is not a word that signifies Fetters but that it is so general a word that it may expresse any other thing as well and that the Anglice joyned with it to interpret what it means cannot help it because there is a proper Latin word which might and ought to have been used to expresse Fetters by Rolle Iustice said that by the Statute all pleadings ought to be in Latine Pleadings and every particular thing therein ought to be expressed by a Latin word if there be a proper Latin word for it as here there is and therefore the proper Latin word being not used but another which cannot signifie the thing the Anglice doth no good but part of the Declaration shall be judged to be in English and so it cannot be good And judgement thereupon was stayed till the other sould move Curtice and Columbine Pasc 23. Car. Banc. Reg. Mich. 22 Car. rot 433. CUrtice brings an Action upon the Case against Columbine upon an Assumpsit by paroll to find meat drink lodging Error to reverse a Iudgement in an Action upon an Assumpsiâ—â— c. for the Plaintiff and to teach him the trade of a mercer This agreemet was afterwards by consent of both partyes put into writing Vpon the tryal the Plaintiff obteins a Verdict upon the paroll agreement and hath Iudgement thereupon The Defendant brings his Writ of Error in this Court and Assignes for Error that there was no Assumpsit declared upon or proved sufficient to warrant the Verdict and Iudgement because that by reducing the Agreement to writing the paroll agreement became ipso facto void and so no Action could be brought upon it but it ought to have been brought upon the Agreement expressed in the deed and the issue ought to have been joyned upon that and not upon the verball Agreement which is void The rule of Court was to shew cause why Iudgement should not be reversed Barker and Martin Pasc 23 Car. B. R. BArker brings an Action of Trespass for an Assault and Battery against Martin simul cum Arrest of Iudgement in Trespasse c. and hath a Verdict against him It was moved in Arrest of Iudgement that the Action ought to have been brought particularly against the other Trespassors together with the Defendant and not against the Defendant in particular with a general simul cum against the rest which is uncertain and signifies nothing against the rest and the rather because the Action is commenced by bill and not by original although it could not be good though it were by original but it was said by Rolle Iustice that it may be the Plaintiff could not Arrest the other Trespassors Trespasse and that he will do it when he can and that he may well proceed against them at divers times as he can take them but that whensoever he shall have had satisfaction for the Trespass done him from any one of them he cannot proceed against any of the rest and it was ruled that Iudgement should be entred Cook and Allen. Pasc 23 Car. Banc. Reg. A Iudgement given in an inferior Court was reversed in this Court Iudgement reversed because the Venire was ill inferior Court Common pleas because the Venire was Venire facias c. and did not shew from what place the Venire should bee which by Rolle Iustice ought to have been expressed at large it being in an inferior Court and not with an c. although the use of the Common pleas be to make the Venire short with an c. The King and Holland Entred 16 Car. Argued Pasc 23 Car. Banc. Reg. THe case was in effect this An argument upon a special Veâ—dict A Copyhold was surrendred to I. S. in trust that Holland an Alien should take the profits thereof to his own use and benefit upon this an inquisition was taken for the King and this matter found whereupon the lands were seised into the Kings hands and upon a tryall concerning these lands a special Verdict was found comprising the aforesaid matter The case was argued against the Kings Title by Mountague of the Middle Temple and for the Kings title by Hales of Lincolnes Inn. The substance of Mountagues Argument was 1. To consider the nature of the trust 2. The nature of the land out of which the trust was raised and for the first he held because it was a trust for an Alien to take the profits of the land and in that the Alien had no estate in the land therefore the King could not have it as he might have had the land if the Alien had had any Estate in it and he said that this trust was a thing only in Action and lies in privity and not to be seised upon by another and said a Villein was a parallel Person in law to an Alien in respect of purchasing of lands and had a Copihold been surrendred thus in trust for a Villein the Lord should not have seised it and this is but a trust not Executed which is in the nature of a use at the Common law and not as it is now by the Statute besides this trust is raised out of Copyhold lands and therefore the King cannot seise the lands which the Alien hath not for if he should the Lord of whom the land is held would be preiudiced and he cited Beverlyes case 4. rep 126 and a case in 23 Eliz
the mony is not paid a Iudgement is obtained against White for the mony White makes his will and makes his Heir at law his Executor and dyes leaving lands to descend White as Heir brings a Writ of Error to reverse this Iudgement It was argued by the Councell of the Plaintiff in the Writ of Error that the Writ did lye because although the Action in the former Iudgement was but a personal Action yet in this Case the Land of the Heir may be charged by the Iudgement Heir Elegit for an elegit may be thereupon taken out to charge â—is Lands and therefore the Iudgement concerns him as Heir as well as Executor and therefore it is reason he should bring a Writ of Error to reverse the Iudgement because he may be prejudiced by it Executor And a Case in Trin. 29 Eliz. rot 631. Banc. Reg. was cited that the Heir is pridy to the Iudgement and therefore shall have a Writ of Error Error and he is not meerly terr-Tenant 13 E. 4.2 Roll Iustice the terr-Tenant sole shall not have a Writ of Error upon an extent Error And in the Case at the barr the Heir is not privy to the Iudgement and the extent is only upon him as terr-Tenant and he is not made privy to the Iudgement by the extent but after Execution he may have a Writ of Error and he said Bail the Bail cannot bring a Writ of Error upon the Iudgement given against the Principal and the same reason is here and it will be very hard to maintain this Writ of Error Adjourned to the next term Terry and Baxter Trin. 23 Car. Banc. Reg. Pasc 23 Car. rot 394. TErry brings an Action of Debt upon an Assumpsit against Baxter Demurrer upon an Dclaration in Assumpsit to stand to an award to stand to an Award The Defendant pleads nul arbitrement the Plaintiff sets forth the award and assigns a breach The Defendant demurs and for cause shews that part of the award was to pay 5 l. to the poor of the Parish of D. which was not within the submission and so the award was not good Rolle Iustice answered if the award be void to the 5 l. Award good in part i a good award awarded to be paid to the poor yet it is good to the rest for it is perfect as to the ending of all differences between them which are submitted and therefore shew cause on Monday next why judgement should not be given for the Plaintiff Morefield and VVebb Trin. 23 Car. Banc. Reg. Pasc 23 Car. rot 50. VVEbb brings an Action upon the Case against Morefield in the palace Court at Westminster Error to reverse a Iudgement in an Action upon the Case and hath a Iudgement Morefield brings a Writ of Error in this Court to reverse the Iudgement and Assigns these Errors 1. It is not shewed in the Declaration that the cause of Action was infra jurisdictionem palatii But Rolle Iustice answered Iurisdiction that it was shewed to be infra jurisdictionem Curiae and that was good enough for the Court is alleged to be held by Letters patents Retorn A 2d Exception was that there was not fifteen dayes for the retorn of the Venire facias as there ought to be But to this Rolle Iustice also answered that the Court is held by Letters patents and therefore it may be retornable within fifteen dayes though by the usual course of the Common law it cannot And therefore ordered the Plaintiff in the Writ of Error to shew better matter otherwise Iudgement should be affirmed against him The King and Holland Trin. 23 Car. Banc. Reg. THe Case between the King and Holland was moved again For quashing an inquisition for the King Inquisition and the Councell against the King moved that the inquisition found for the King to entitle him to the use of the Copyhold might be quashed because the King cannot be intitled to such a use because it is a thing in privity only and cited the Statute of 27 H. 8. of uses Vse and Cooks 1. rep 123 and said that the King cannot be intitled ot Copyhold lands of an Alien much lesse to the use of Copyhold lands Copyhold King VVrong Protection Trust if he should 1. The Lord would be wronged which the King ought not to do but to protect his subjects for the protection of the subject is not only matter of honour to the King but also of trust in the Crown 2ly A stranger is wronged by it 3ly The Copyholder of the Manor cannot have remedy for the injury done him Sute for he ought to sue in the Lords Court and not else where and here he cannot do it and the rule in law is de minimis non curat lex and it is much lesse for the honnour of the King to have a Copyhold estate Honour which is a base tenure But it may be objected that if the King shall not have this use he shall be in a worse condition than a subject To this it is answered that he shall be so in cases which touch his royalty and may be a disparagement to him Copyhold which indeed doth not make him in a worse condition though it may seem so but it is more for his honor and a Copyhold is an estate at the will of the Lord and ought to be protected by the Lord and the King cannot be Tenant at will to any Alien Trust and therefore cannot have a Copyhold estate and an Alien is not capable of a trust because it is a thing in Action which an Alien cannot have and therefore he cannot derive it from him Twisden for the King in his Argument considered 1. Whether the King can have a use at the Common law which is for an Alien 2. Whether a trust differs from a use for the first he said that an Alien may purchase lands Alien Praerogative and a use at the Common law but he cannot retain them therefore the King shall have them by his Praerogative and a use is not a thing in privity but is an Antient inheritance at the Common law 2ly There is no confidence annexed to cestui que use or to the Feoffor but may be disposed of 3ly Things privity in Action may be given to the King Privity and a use is an inheritance in the nature of a Chattell 4ly A use is grantable over Privity and therefore may be given to the King and the meaning of the word lost in the Statute is to be intended that it may be lost for the difficulty of finding such subtile conveyances and not that the right was really lost Trust And for a trust it is but a new name given to a use and invented to Defraud the Statute of uses and a trust of a Copyhold is all one with another trust for it is the taking of the profits of the land and not the Estate in
the land and the King shall have it And to that which is said that the King cannot be a Copyholder it is not so clear for I conceive the contrary for a surrender of a Copyhold to him is good and of a use too and he cited these books 9 H 6. fol. 25.20 B. 3. f. 3.11 rep 91. Rolle Iustice said that a Trustee or cestuy que trust cannot take the profits of the land Cestuy que trust Equity Outlawry Law Equity but hath only his remedy in equity for the Estate in the land is only in the party trusted and the King shall not have the profits of the land upon an Out-lawry against the cestuy que use or cestuy que trust And Law and Equity ought not to be confounded therefore if the King hath equity for a thing he ought not to sue for it at the Common law so is it in this case at the bar Adjourned Chapel and Drew 23 Car. Banc. Reg. Hill 11 Car. rot 921. IN this case the party being attainted of felony Exception to a pardon for Felony Pardon pleaded his Charter of Pardon and Claims thereby to be restored to his Goods and Chattels forfeited to the King by the felony and the Question was whether as the Pardon was penned he should be restored or no the words of the Pardon upon which the Question grew were these pardonavit remisit relaxavit and it was held that he was not by these words to be restored to his Goods and Chattels for the words do not amount to a Surrender in case of a ommon person much less in case of the King and there ought to have been the word restituit Roll Iustice said this Pardon was drawn by Noy Attorny General and was too short Felony Tryal and it was said by him that if one be committed to the Gaol for one felony the Iustices may enquire and try the party for another felony for which he was not committed Tylers Case Trin. 23 Car. Banc. Reg. AN action of Debt was brought against Tyler upon an Obligation to stand to an Award Demurrer to a Replication and the Plaintiff declares of an Arbitrement made the 28th day of May in such a year ready to be delivered up the nine and twentyeth day of May in the same year The Defendant pleads nullum Arbitrium The Plaintiff replies that the Award was made by the Vmpire the 28th of May ready to be delivered up upon the same 28th day of May and to this replication the Defendant demurs and shews for cause that the Plaintiff had set forth double matter one in his Declaration and the other in his Replication for the Award set forth in the Declaration and that set forth in the Replication cannot be intended to be one and the same But Roll Iustice answered that the Issue to be tryed is not to be taken upon the day of the Award made and therefore it requires no answer Demmurres and so cannot be double and one ought not to demur for the doubleness of the matter upon a thing upon which no Issue can be taken and â—â—led better matter should be shewn or else Iudgement should be given for the Plaintiff Estwick and the City of London Trin. 23 Car. Banc. Reg. THe Case of Estwick and the City of London was again argued by Serjeant Glynn for the City Argument in the Case of the VVrit of Restitution to a Common-Councel-mans place Restitution Custome in his Argument he insisted upon three particulars why Estwick could not be restored to his place of a common-Councel-man 1. That a common-Councel-man may be removed or suspended from his place at pleasure by the custome of the City 2ly That he cannot be restored by Law 3ly No restitution can be in this case as it now stands First the custom to remove a common-Councel-man is good for it first began by agreement and such a custome is good at the common law much more here and it is not an unreasonable custome although it may seem so prima facie like as it is in the case of a Lord that feiseth the Lands of his Villein and in the case of a Copyholder that for feiteth his Estate by the felling of Timber A second reason is it agrees well with the nature and condition of the office of a common-Councel-man to be subject to this Custome Tryal and we know that many things shall be tryed by Custome contrary to the course of the common law 3ly We see that the order of the Parliament is a rule to try matters concerning their Members and so it is here in the Citie to try their Members 4ly If it should not be so it would prove destructive to the City by waiting till such an offender might be removed by a course in Law which is far more tedious than this customary way To the second point he said that by Law there can be no restitution to this office and this is proved by the very nature of the Writ of Restitution which is to restore the party to a freehold or some other matter of profit neither of which can be in our case and a writ of Restitution is to restore one to a possession where one may not be restored by an ordinary way neither doth the Statute of Magna charta extend to our case for a common-Councel-mans place is merely grounded upon the custome of the City and not upon the Common law and he said there are three grounds for a Writ of Restitution 1. A contempt to the King 2ly A hurt to the Common-wealth 3ly Particular dammage to the party but none of these is in our cause and therefore there is no cause for a Writ of Restitution The case of Sir Iames Baggs having a Writ of Restitution was because he was deprived of his Trade and Freedom Constable Church warwarden free-hold and our case differs from the case of a Constable or a Church warden or any case that can be cited for a Church warden is an officer in relation to the Common wealth for the execution of Iustice wherof the Common law takes notice and likewise a Constable is a known Officer to minister Iustice in relation to the publique Recorder so is it of a Recorder of a Corporation and so they all differ from our case For authority to this point in 17. Iac. but moved first 16 Iac. Warren a common-Councel-man of Coventry was denyed upon the retorn of his Writ to be restored and our case and retorn is more strong against the Plaintiff and Burman a Gentleman of one of the Inne of Court being expelled could not be restored by a Writ of Restitution and lately a common-Councel-man was removed for not taking the Protestation For the third point whether upon the Writ it self as this case is there can be any restitution made I conceive not because it is directed to the Maior and Commonalty and Citizens of the City of London and so
enough 2ly It doth not appear that there are divers Churches in New-Sarum where the Proclamation was made To the third exception the Proclamation is said to he made prout breve postulaâ— and that shall be supposed duly done and implies all requisite circumstances and he cannot make another return and it is impossible to be otherwaies To the fourth it is not necessary to retorn the place of the Summons and it is said that it was made secundum formam Statuti which supplies the rest And to this the Court said that the words secundum formam Statuti extend far And Roll Iustice said that Proclamaiton in one place was good in all Holhead of Councel with the Plaintiff in the Writ of Error proceeded and took these exceptions in the demand of the Dower 1. The demand is generally de rectoria which is not good Demand Rector for the incertainty of it for there may be a Rector of a College of a Province of a Bishoprick as well as of a Parish-Church and therefore it ought to have been de Rectoria Ecclesiae parochialis de c. 12 H. 4. f. â—9 pl. 1. 2ly The demand decimarum is too general and not good and it ought to have been decimarum granorum soeni c. for the demand de omnimodis decimis quibuscunque is too general 11 Rep. Herberts case 1. To these exceptions Hales answered that a demand in a Writ of Dower need not to be so exact as in other original Writs for original Writs are not alterable but ought to answer the forms in the Register To the second he said that rectoria shall be intended the Rectory of a Church and the Statute extends not to this besides the place of the Rectory is described which makes it certain enough To the third it is not necessary to express the Tithes particularly and the demand being of the Rectory it compriseth all the Tithes also the demand is de omnimodis decimis which is a general demand and compriseth all and is not de decimis only for that might be incertain Holhead The demand is de rectoria de omnimodis decimis which is a demand of one thing twice and that is not convenient for by this means the party may recover dammages twice and the Court will be also inveagled by this means and it matters not though we have not pleaded to this for the Court ought to take notice of it Notice because it is in the original Writ Next there is no form in the Count for cum pertinentiis is informal for it refers to the Parish and not to the Mannour 27 E. 3. f. 86. Pl. 3. Haleâ— This is but a variance in form and is not material and also it shall be intended to refer to the Mannour and not to the Parish Holhead The demand is not warranted by the Writ for the Vill and Parish are not named in the Writ but are named in the demand 11 Rep. Arondels case Hales The demand is not de rectoria in Tymsbury but de Tymsbury and is the denomination of the thing demanded Tithes Parissi and not of the Vill where it lyes Holhead It is not said where the Tithes extend and they may extend to divers Vills as a Parish may 19 E. 3. f. 9. Hales Here is one demand and it includes all the Tithes Roll Iustice You have demanded the Rectory in Tymber and not the Rectory of Tymber and by the grant of ones Mannour in Dale no more of it passeth than what doth lye in Dale and here it shall be intended so much of the Tithes as are in Tymber Holhead Here is a demand of Dower of such things whereof Dower lyes not viz. of a quarry of Stones and it appears not that the Quarry was open in the life of her Husband and if it were yet it is improper to demand it by the name of a Quarry Hales the word Quarry is a good word well-known what it means for Quarrera is an old wel-known Latine word for it Dower and she is as well dowable of it as of a Mine of Coles and it shall be intended to be open because she demands it by that name of a Quarry Holhead The demand of the Dower is also of a Hundred of which a Woman is not dowable because it is an entire thing and cannot be divided and the demand should have been de tertia parte proficuorum hundredi To this Roll Iustice answered then by your reason she shall never keep a Court. Hales It is well enough demanded for a demand shall be of the thing it self and not of the profits of it for the profits were not in the Husband but he was seised of the Hundred and the profits are a thing incertain Holhead The execution of the Habere facias fesinam is not well executed for by it two third parts are assigned for Dower and that is more than the demand Hales That is but a repetition of the thing demanded Holhead A thing not demanded at all is assigned for Dower viz. view of Frank pledge Hales That is but an incident to another thing that is demanded viz. the Hundred and by the demand of the Hundred the view of Frank-pledge is demanded and all other incidents to the Hundred Holhead Here is an assignment also of all tenures and she cannot have Homage because she is a Woman Hales She shall have all tenures which she is capable of and so all shall be understood in this place and no other she shall have Holhead The Iudgement is also if 15 Copiholds Tenements which lately were Copiholds Roll Iustice This is good enough and what loss have you by it Holhead The Assignment is also of the 3d. part de Copicia de Structuris and other words there are which are also incertain And there is error in the assignment of dammages for the dammages are assigned ultra valorem terrae which is against the Statute Roll Iustice Dammages Iudgement the Statute is an addition of the value and dammages for the Iudgement is perfect without returning the Writ of the dammages and so hath been adjudged in the Common pleas Holhead Here is an ill suggestion of the Feme for the suggesteth that her Husband dyed seised in fee of all the Lands out of which she demands her Dower and that is not true for he dyed seised of part of them in tayl To this the Court said that is not material if he dyed so seised that she ought to have Dower Holhead Dammages are given ultra valorem which I conceive is not good Roll Iustice It is well enough for dammages are given and the value by the Statute Holhead The retorn of the Elegit is not good Hales That is another Record and appears not now in the Court Roll Iustice The Elegit hath no reference to the former Record Holhead There is one error in fact and that is confessed by your joyning in demurrer Doubleness Roll
Executors in such cases 14 H. 4. fol. 29. Fitzh Tit. responder 7 E. 6. Dyer 81.10 rep 128. And said the verdict hath found it in the debet and detinet which shall be intended to be true 9 Ed. 4.41.17 Jac. Paul and Mordyes Case in the Common pleas and 7 Iac. Smith and Nicholas Case and prayes Iudgement for the Plaintiff Hales for the Defendant argued that the Declaration is not good 1. He said the Action is good in the detinet because the profits of the land let which are over and above the rent to be paid for it reserved upon the lease shall be only assets in the Executors hands Difference Contract 2. It cannot be good both wayes and the Term is in him as Executor not the rent and there is a difference between contracts Executory and contracts Executed but it may he said the rent to be paid may be more than the profits of the land is worth â— answer this shall not be presumed in law if it be not so shewed 43 Ass pl. 23.16 H 7. fol. â— The Action is brought for all the rent incurred therefore it shall not be presumed that the land is not worth the rent that is paid for it Verdict and as for the verdict it shall help nothing for a verdict shall not supply a necessary part of a Declaration omitted and if he owes then he detains and I conceive Hargraves Case to be good Law though denyed by the Councell on the other side and here the privity of the contract is not determined and so prayes Iudgement for the Defendant Roll Iustice It is for the advantage of the Executor to bring the Action in the detinet for then he sh ll be charged only for the goods of the Testator and not for his proper goods and it may be the land is lesse worth than the rent and that the partyes have consented the Action should be brought in this maner Bacon Iustice cited Pawls Case Mich. 17 Iac. But entred Pasc rot 346. That the Action may be brought in the debet and detinet and if the Plaintiff will bring his Action here in the detinet it is not for your disadvantage and he may at his election bring it either way Roll Iustice Here the verdict answers the point of the issue and therefore is good The Court ruled the Plaintif to take his Iudgement except better cause shewn to the contrary William against Tyrer Hill 23 Car. Banc. Reg. Pasc 23 Car. rot 224. VVIlliam brought an Action of Trover and Conversion against Tyrer for certain goods of the Plaintiff the Plaintiff hath a verdict Arrest of Iudgement in Covenant The Defendant moved in arrest of Iudgement and took these exceptions to the Declaration 1. The Plaintiff declares pro tribus duodenis fili Anglice dosens of thread Declaration which is incertain for it may be three dosen pound of thread or skenes of thread or ounces of thread To this it was answered that it cannot be otherwise expressed and the words dosens of thread is used amongst Merchants and well known unto them what is meant by them 2ly He declares for so many pounds Muscat in stead of Nucum Muscat ram Anglice Nutmegs But this exception was mistaken for the record was otherwise and besides it was with an Anglice which makes it certain The Court ruled Iudgement to be entred except cause shewed for the Plaintif Rawson against Bargue Hill 23 Car. Banc. Reg. THe Case between Rawson and Bargue being an Action of Debt upon the Statute of 2 E. 6. for not setting forth of Tithes â— Arguments whether a free Chapel or no and the Iudges opinions wherein upon a speciall verdict the question was whether the Church were a free Chapel given to the King within the Statute of 1 Ed. 6. was again argued by Latch for the Plaintiff and by Brown for the Defendant Latches argument was to this effect 1. He said that the Law sayes it is presentative although it be not and 2ly It is sufficiently found to be a parochial Church yet it is not material whether it be found so or no. Next the words of the Statute do not extend to give donatives to the King 3ly It is not given to the Crown and although the Declatation and verdict be that it is a free Chapell yet it is not comprehended as a Chapel presentative Lit. 94. The word free makes a distinction of things and the party ought not to confound things Free Chapel and a free Chapel is alwayes interpreted for a Church donative and not presentative The right investiture of Churches was challenged from the foundation of them untill within this 400 years it was altered by the Common law Seldens History of Tithes fol. 392. and upon that alteration the name of a free Chapel came Reg. 41. It is said to be free from ecclesiasticall jurisdiction Fitz. tit Brief 6.0.3 Ed. 3. Fitz. Tit. Ayde du roy 33.14 H. 4.11.22 H. 6.25.22 H. 6.27 by Danbye 26 H. 6. Fitz. grants 12. Nat. brev 33 E. 34. f. 27 E. 3.84 Cowels interpretor Tit. free Chapel And in all Statutes the word free Chapel is meant of donatives Stat. 26 H. 8. cap. 3. Stat. 37 H. 8. cap. 4. Stat. 1 Ed. 6. cap. 14. Regist 307. But it is objected that free Chapels extend to presentatives Presentation Donative because they are with cure Lit. Com. 344. a donative may be parochial 7 E. 3. f. 4. To this I answer Churches had cure of souls when they were donatives To the 2d point by the meaning of the Statute it appears Tenure Frank-almoigne that only donatives were intended as the preamble of it doth declare And all Chapels are held in Frank almoigne as well as donatives and so all may be given to the King by the same reason Another objection is that the word Capella is superstitious and therefore being of a superstitious foundation it is given to the King and Cowels Interpretor is urged to prove the word to be so derived To this I answer that Sir Henry Spelman as learned an Author as Cowell in his glossary rejects Cowells derivation of the word Capella and saith that Capella is used promiscuously for any upper covering And though the name were superstitious yet that makes not the Chapel to be so for so the Church of St. Andrew or St. Dunstan should be superstitious and given to the King by the Statute There is a double preamble of the Statute 1. A recitall of another Statute Preamble and the taking away of other superstitious uses Preamble of the Statute 37 H. 8.22 Ed 4. cap. 7.8 rep 137. beasts of the Forest are not Cattel 3. rep The marques of Winchesters Case Com. 204. That some generals may be taken in a restrained sence 9 H. 6.36 Interpretation Words of a Statute ought not to be interpreted to destroy naturall Iustice The stile also of the Act doth not shew that donatives are only intended
between what the Law directs and what the devise directs all the difference is in the manner how his Son Iohn shall come to the Estate 3 4 Phil. Mar. Dyer 134. 37 Eliz. A man seised in fee had issue two Daughters and devised the Lands to them and to their Heirs and it was questioned whether they were Ioynt tenants and I conceive they are and where one omits a thing in a conveyance which the Law supplies this shall not hurt and he cited Iennings and Pollards Case 6 Car. Hales on the other side argued that the Son takes by purchase and not by descent for the devise is not to the Son in present but after the death of the Testators wife and if he had the Lands by descent he should have them presently VVaiver It is true the Son might have waived the taking by purchase and might have taken by descent but here prima facie he shall be intended to be in by purchase and not descent for here doth not appear to be any actual waiver of the purchase and the Son doth here as I conceive take by way of remainder and not by way of reversion And as to the verdict I conceive it is not good for it doth not shew how the lands are held whether in Chivalry or Socage and so it appears not whether the Testator had power to devise all of them or not for if they be held in Chivalry he can devise but two parts of them as the Statute directs 2ly It appears not that the Testator had but one Son by his first wife 3ly It is not shewed that the Lands are parcel of the Mannor 4ly It doth not appear in whose possession the Lands are Roll chief Iustice said Lands that are given by Will shall be intended to be socage tenure Intention if the contrary do not appear And he held that the devise is void and that it is not in the power of Iohn the Son to make the election to take by descent or by purchase at his pleasure but he must of necessity take the Land as the Law directs which is by descent Maxim and it is against a maxim in Law to give a thing to such a person to whom the Law gives it if it had not been so given 3 4 Phil. Ma. Dyer 134. and therefore the Plaintif ought to have Iudgement And as to the verdict he hath primer possession Verdict and therefore if the other make no title the verdict is for him and good enough Bacon Iustice to the same intent viz. that the Heir doth here take by descent and not by purchase for this the Law says and he cannot alter it and cited Foscues Case 4 Car. and a Case in 7 Iac. And so judgement was given for the Plaintif Franck against Burt and others Mich. 24 Car. Banc. Reg. THe Plaintif brought an Action of Trespass for breaking of his House For costs for the Desendant upon non-sute of the Plaintif and carrying away his Goods at the Tryal the Plaintif was non-sute The Plaintif moved that there was error in the Declaration and therefore there could have béen no Iudgement and prays that he may be spared costs Roll chief Iustice answered that heretofore it hath been made a question whether the Plaintif being non-sute should pay costs Cests but since the Statute of 4 Iac. it is clear he ought to pay costs for the vexation of the Defendant and so it hath béen ruled here and you are out of Court now by being non-sute and therefore you must pay costs And therefore except better matter be shewed let them be paid Mich. 24 Car. Banc. Reg. THe Court was moved for a Prohibition to the great Sessions of Carnarvan in Wales to stop a sute in an English Bill of Equity exhibited there For a prohibition to the great Sessions at Carnarvan in Wales whereas by the Bill it appears there is no matter of Equity in the Case but only matter tryable at the Law The Court answered if they proceed there against Equity we cannot hinder them There was wont to be an Agent here from the Commissioners there for us to confer with in such cases as these but it seems there is not any here now Therefore give notice Prohibition and let them shew cause the next Term why a Prohibition should not be granted Mich. 24 Car. Banc. Reg. VPon reading of a retorn made by the Sherifs of the City of Norwitch upon a Habeas corpus directed unto them for one Chambers It was said by the Court How a Habeas corpus to an inferiour Court should be retorned Retorn that it hath been ruled That upon a Habeas Corpus to an inferiour Court to remove Corpus cum causa they ought to retorn all the causes that are depending there concerning the party that hath the Habeas Corpus if any of the causes depending be for above five pound of which they ought not to hold Plea and therefore because all the causes were not retorned here upon the retorn of this Habeas Corpus The Court held the retorn was not good and ordered that it should be amended upon pain of ten pounds by Monday next Raph against Davye Mich. 24 Car. Banc. Reg. RAph brought an Action of the Case against Davy for speaking these words of her to the Plaintifs mother Arrest of judgement in an action for words viz. Your Daughter innuendo the Plaintif is a brazen faced Whore and deserves to be hanged and for speaking these other words to the Plaintif herself viz. you Huswife are a Thief and have stollen my Purse The Plaintif had a verdict The Defendant moved in arrest of Iudgement Averment that the Plaintif doth not aver that her Mother had not any other Daughter besides herself and so it is uncertain whether the words were spoken of her or no. But the Court held it was well enough without such averment because the Declaration is that the Defendant habens colloquium of the Plaintif did speak the words and that makes it certain enough And therefore bid the Plaintif take her Iudgement Jennings against Lee. Mich. 24 Car. Banc. Reg. IEnnings brought an Action of Assault and Battery against Lee. The Defendant pleads a special plea Arrest of Iudgement in an action of assault and battery and justifies The Plaintif replies de injuria sua propria and upon this an Issue is joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement that the replication was not good because it answers not the special matter pleaded nor takes any traverse by an absque tali causa as it ought to do and so there is no issue joyned and consequently there can be no Iudgement Roll chief Iustice said that the replying de injuria sua propria Traverse Issue Ieofails and not traversing absque tali causa is not good for there is not an affirmative and a negative and so
for cause shews 1. That the breach of this promise was in the Testators life time and therefore the Action should have béen brought against him and is not now to be brought against the Executor 2ly The Testator did not promise that his Executors should deliver the goods but that he would deliver them upon request Request and there appears no request to be made to the Testator as there ought to have been 15 Iac. Hob. rep f. 300. Bodwells Case But Roll chief Iustice answered Executor That an Executor may be charged upon a collateral promise if there were a breach of it in the Testators life time and here is a good request and goes to all Therefore let the Plaintif take his judgement except better matter be shewed to the contrary and Osborne Mich. 1649. 1 Reipub. Ang. Banc. super THe Plaintif brought an Action upon the Case upon two several promises the Defendant pleaded non assumpsit Arrest of Iudgement in an Action upon the case Issue and upon this an issue was joyned and a verdict found for the Plaintif The Defendant moved in arrest of iudgement and for cause shews that there is no issue joyned as to the second promise alleged for he doth not conclude with petit quod inquitatur per patriam and yet there is a verdict found upon both the promises The Iudgement was arrested till the other should move Mich. 1649. Banc. super VPon a special Verdict the case was this A Case upon a special verdict argued Tenant for life the remainder for life the remainder in tayl the remainder to the right heirs of him in the remainder for life the remainder man in tayl levies a fine in the life of tenant for life And the question was whether by the levying of this fine the estate tayl were discontinued or no. To prove that the estate tayl was discontinued these Books were cited 1 H 7.22 Lit. Cap. Discents Sect. 34.14 Ed 3. Fitz. Avâ—wry 117.3 Ed 3. Fitz. grants 60.15 Ed. 4 9.2 Rep. Butlers case 5. Cooks Lit. f. 25. Pasch 13 Car. Hungates Case Banc. Reg. Dyer 339. Twisden to the contrary argued that the estate is not altered neither to the right nor by way of Estople 46 Edward 3. f. 23. Estople An Estople supposeth a thing to be done and therefore if the thing be impossible which is alleged by way of estople it can be no estople And one shall not be construed to doe wrong by an Act which may be interpreted so that by it he may doe no wrong Brooks Abridgement Grants 49. Roll chief Iustice The matter here is not how the estates shall pass and how to make them good but the Question is upon the forfeiture Forfeiture for he levies the fine as of an estate in possession and not of a reversion in fée and this is not upon the rule in Bredons case 13 Car. Sir Julius Caesars case an Acceptance of an estate or an Attornment by Tenant for life to a stranger is a forfeiture Jerman Iustice held there was no forfeiture But the Court said the Verdict was ill sound and therefore ordered it should be amended that the whole matter in Law might come in question Amendment Gray against Walye Mich. 1649. Banc. sup VVAlye brought an Action upon the Case against Gray Arrest of judgement in an Action upon the case for speaking these words of him viz. Iack Walye was questioned for stealing of a gray Mare with a snip in her ear and hue and cry went out after him and he durst not shew his face hereabouts The Plaintif had a Verdict and the Defendant moved in Arrest of Iudgement that the words were not actionable because they were general and uncertain words and it doth not appear the party was damnified by them nor how long ago they were spoken Roll chief Iustice said that the party was defamed by speaking of them and he hath laid it that he lost his Credit thereby Therefore let the Plaintif have his Iudgement except better matter be shewn But Nicholas Iustice doubted whether they were actionable or no. And Ask Instice nihil dixit Mich. 1649. Banc. sup AN Attorney of this Court that was within age Error against at Attorney in Court for appearing propria persona being within age Error in fact appeared to an Action propria persona and pleaded to issue and had a verdict and a judgment for him and upon this a writ of Error was brought here it being an error in fact because that being within age did not appear per guardianum nor by his Attorney and it was said that it is not helped by the Statute of Ieofails though it be after verdict And thereupon the Court stayed the Execution Mercer against Rule Mich. 1649. Banc. sup THe Court was moved For a Supersedeas attachment for taking out execution after a writ of Error brought and allowed Supersedeas Attachment Execution That a writ of Error was brought to reverse a Iudgement and that it was received and allowed and notwithstanding the Plaintif that had the Iudgement had taken out execution and thereupon it was prayed for a supersedeas to supersede the execution and for an Attachment against the party for his contempt to the Court. And it was urged by the Councel that moved That after a writ of Error is received and allowed the hands of the Court that gave the Iudgement are foreclosed from granting out execution and that the writ of Error is in it self a Supersedeas and cited Dyer 283. and therefore concluded that the execution is not well issued forth Twisden of Councel on the other side said that the writ of Error was not duly pursued because the roll was not marked and therefore the party might well take out execution But Roll chief Iustice answered that the writ was well pursued though the roll were not marked Yet if neither the roll be marked Notice nor notice given to the Attorney on the other side of the bringing the writ of Error if the party procéed to take out execution it is no contempt to the Court otherwise it is a contempt Contempt Supersedeas And it is the duty of the Clerk of the Errors to mark the roll and not the Attorneys and therefore take a Supersedeas quia improvide emanavit to stop execution Pym against Morgan alias Bambery and Baselye Mich. 1649. Banc. sup Hill 24 Car. rot 1062. IN an Ejectione firmae brought for the Mannor of Caledown Argument upon a special verdict in an Ejectione firmae The Defendant pleads Not guilty and upon this the Iury find a special verdict to this effect That Sir Thomas Morgan was seised in fée amongst other lands of the lands in question and that in 13 Car. he made a settlement of these lands to himself for life the remainder to his daughter Mary for life the remainder to the heirs of the first Tenant for life with a power of revocation
not from Morgan their Father It was answered that there is the same reason to provide for Morgans state that was rightly conveyed from him before the year 1641. as of a strangers so deriving from Morgan It is also objected that the Trustees for Pymm and the Common wealth shall have Morgans lands and they shall not be said to be forfeited It was answered that the Act distributes no more than is forfeited which can be no more than Morgan had at that time 2ly The Parliament took no notice that Morgan was seized in fee simple nor what estate he had 3ly After the estate of Mary Morgan ended the reversion in fee returns to Thomas Morgan so that Mary hath but a particular estate and the Ordinance may be satisfied though Mary Morgans estate be not forfeited for the reversion may be forfeited and the particular estate preserved as Cleres Case is and the saving is not here repugnant as it is objected nor destroyes the generality of the Ordinance for it is here satisfyed And the Parliament doth not take notice of the conveyance made by Thomas Morgan nor of any other estate than that he had at the time of the making of the Ordinance otherwise there would be a great inconvenience but it is objected that the Sons claiming under Thomas Morgan are excluded out of the saving It was answered that although they are yet they are not excluded out of the body of the Act Dyer 273 â— o Eliz and here the excepting of the interest of the Daughters in the saving hath its effect viz. the estate which they have of Thomas Morgan after 1641. which shall be given by the Ordinance and not that which they had before and so prayed judgement for the Plaintif viz. Mary Morgans lessee Maynard for the Defendant viz. Pymms heir said That the Act is the rule to measure our case by and that the Act doth take away the right of all the Children and that the saving helps none but strangers and notwithstanding the recompense reserved for Pymm if the estate shall be short it is intended of such an estate not within the saving and the estate of the Children is not within the saving and here is not a general gift but these lands particularly And in this case Morgan had power to revoke his settlement and so there is no breach made by the Ordinance of Common Iustice as is objected because he had an interest in the estate notwithstanding the settlement And all parts of the Act stand very well here together upon the best construction of it according to the makers intent If I grant all my trees fruit-trees will not pass but if I except all my Apple-trees all other fruit-trees pass and the inheritance in Morgan doth not satisfie the Act and so prayed Iudgement for the Defendant Roll chief Iustice said Mr. Maynard you mistake the first part of the Ordinance for do you think that the Ordinance looks further back than 1641. in other lands not expressed and he seemed to encline for the Plaintif but the other Iudges for the Defendant But the Court concluded that it was a great case and deserved great consideration and therefore ordered That it should be argued again the first Saturday the next Term. Mich. 1649. Banc. sup THe Court was moved upon an Assidavit for a Habeas Corpus for one committed for suspition of felony For a Habeas Corpus for one comitted for suspition of felony for uttering counterfeit money because the Iustices will not bail him Roll chief Iustice said It is dangerous to remove such a prisoner and there is a Commission of Oyer and Terminer to try such Offenders and we have no Copy of the Mittimus now but if you bring it we will make some rule in it Mittimus If the prisoner be bailable if the Iustice will not bail him Case bring your Action against him Coswell Mich. 1649. Banc. sup ONe Coswell outlawed moved to reverse the Outlawry upon these exceptions 1. Instead of proxim there is used px for an abbreviation of it To reverse an Outlawry Abbreviation without any dash 2ly Instead of Infra scr the abbreviation of infra scriptam there is used infra sr And for these exceptions it was quashed Dell and Brown Mich. 1649. Banc. sup IT was moved formerly to reverse a Iudgement in an Action of Trespass for the taking away of three Cowes because the Declaration doth not say neither pretii nor ad valentiam as to two of the Cowes Error upon â— Iudgement in Trespass Serjeant Earl moved for Iudgement notwithstanding that exception for he said it was not necessary to express either and urged 19 E. 2. br f. 842. and Pas 20 Ed. 3. f. 2.8 H. 6. reg 97. b. But Roll chief Iustice answered That which you urge is against the received opinion Declaration for if they he live Cattel that are taken it ought to be pretii but if dead it ought to be ad valentiam Therefore shew cause before the end of the Term why the Judgement should not be reversed Spry against Mill. Mich. 1649. Banc. sup Pasc 1649. rot 208. SPry brought a writ of Error to reverse a Iudgement given against him upon a nihil dicit in an Action of Trover and Conversion for a Mare in the Court at Lanceston in Cornewall Error to reverse a judgement upon a nihil dicit in a Trover and Conversion and these Errors were assigned 1. In the judgement it is said ideo ad eandum Curiam consideratum est whereas it ought to be per eandem Curiam 2ly It is recuperare debeat whereas it ought to be debet But Roll chief Iustice answered that is well enough in a judgement upon a nihil dicit 3ly In the awarding of the Venire it is praeceptum fuerit 4ly It is for the Iury to enquire in forma praedicta 5ly The Defendant is not demanded To this Roll chief Iustice said The Defendant did appear and so that is not material Judgement 6ly It is said Consideratum suit and it should be Consideratum est Roll chief Iustice said that was a good exception for the incertainty of the words Vpon this Error Prestwood the Councel on the other side moved that the Record is not removed Certiorari for the Certiorari to remove it was directed to the Maior and the Recorder and the Record is returned by the Maior and Deputy recorder Roll chief Iustice said It appears not to us that the Recorder hath power to make a Deputy Therefore advise upon it and so will we Postea Mich 1649. Banc. sup A Retorn made by an Officer of the Admiralty for one committed by their warrant was read To discharge a prisoner upon a return by an Officer of the Admiralty and it was prayed by Hales of Councel with the Prisoner that the retorn might be filed and the Prisoner discharged for these reasons 1. the party was committed for rescuing
14. 4ly He prescribes that the lands are not pleadable elsewhere which is not true for in some cases they are pleadable here in this Court Nat. Brev. 19 D. and so prayed judgement for the Plaintif Roll chief Iustice demanded why is there not a special demurrer here Special Demurrer After imparlance one may plead that the lands are antient demesne for a plea of lands in antient Demesne to the jurisdiction of the Court differs from other pleas pleaded to the jurisdiction of the Court It is true that parcel of a Manor of antient demesne is pleadalbe at the Common Law but lands held of the Manor are pleadable in the Court of the Lord. Adjourned to be heard Tuesday following Afterwards it was moved again and Roll chief Iustice said that after imparlance this plea is not good because by it he hath admitted the jurisdiction of the Court And therefore lâ—â— him shew cause why he should not plead in chief Pascall against Sparing Hill 1649. Banc. sup Pasch 1649. rot 75. A Writ of Error was brought to reverse a Iudgement given in an Action in Bristow upon a Concessit solvere by the Defendant Error to reverse a judgement in Debt for Concessit solvere Declaration Roll chief Iustice said that an Action of Debt did well lie upon a Concessit solvere by the custom of Bristow and so is it in London 28 H. 6. 1 E. 4. f. 6. Another Error assigned was that it is said that the party recovered the damages per juratores Compert whereas it ought to be Assess for this is the proper word but this exception was also over-ruled Latch took another exception that there wants the words pro misis et custagiis in the assessing the damages and so it doth not appear for what the damages are assessed And for this the Iudgement was reversed except better matter shewn Damages Iennings against Lee. Hill 1649. Banc. sup GEnnings brought an Action of Trespaâ—s of an assault and battery against Lee and his wife Whether an issue well joyned for an assault and battery made by the wife the Feme pleads a special plea of justification that it was in defence of her Husband The Plaintif replies de injuria sua propria upon this there was an issue joyned and a verdict for the Plaintif it was moved in Arrest of Iudgement that the issue was nor well joyned because the replication was not good and so the verdict not good and so there can be no Iudgement Serjeant Parker prays judgement for the Plaintif for he held the replication was good and so a good Issue joyned and if there be not yet it is helped by the Verdict Issue or else by the Statute of Ieofails or if not yet it is at least good in part And the issue here doth imply a negative although there be not a direct negative but an affirmative in the words of it And 6 E. 4 16 b. in a Replevin and 9 H. 5. f. 1. b. there are good issues joyned in the affirmative because they imply a negative Trin. 18 Jac. Banc. reg Aldridge and Walthalls case and here wants only a Traverse which is but only matter of form and not material 2ly The Verdict hath made the issue good although it be not well joyned 5 H. 7. f. 15. 3ly If the Verdict helps it not yet the Statute of Ieofails helps it 5 Rep. Nichols case 19 Eliz. Dallisons Reports 8 9 Eliz. Bendloes Reports and 14 Car. Banc. Reg. 4ly If the Statute help not yet it is well enough because it is good in part and for part it is well found and damages shall be intented to be given for that which is well found Damages 9 H. 7. f. 4. 16 H. 7. f. 1â— 10 Rep. James and Osburns case 3 Iac. Banc. Reg. Bigrane and Selling Mich. 1649. Desmond Osborn this case the Court denied Roll chief Iustice said Issue if there be 2 issues and one issue is not well joyned and damages be given entire this is not good but will make all naught 40 Ed. 3. f. 40. 18 Iac. Aldridges case 16 Iac. Iones and Gates adjudged and he said that the material thing is not here put in issue and so the issue is immaterial and there is a Ieofail and the damages being given entire there can be no judgement given Jeâ—â—ail Ierman Iustice did differ in opinion and said if the Defendant plead an immaterial thing and the Plaintif joyn issue and it be found for him he shall have judgement otherwise where the plea is partly material partly immaterial for there the issue ought to be upon the material thing otherwise there can be no judgement It was adjourned till Thursday following The Case was this An Action of Assault and Battery and wounding was brought the Defendant pleads non cul to the wounding and justifies the Assault and Battery in defence of her Husband in keeping possession of certain lands The Plaintif replied de injuria sua propria and doth not traverse absque tali causa The Iury find entire damages for all whereas there is not a perfect issue joyned as to the Assault and Battery for want of the Traverse Postea Hodges against Iane. Hill 1649. Banc. sup IN an Arrest of Iudgement in this case the question was Whether debt lie against an Executor sur concessit solve of the Testator Wager of Law Debt Executor Whether an Action do lie against an Executor upon a Concessit solvere of the Testator upon a special custom Roll chief Iustice held that it doth not for this would be to charge an Executor in an Action of Debt where he may by the Law wage his Law and an Action of Debt lies not against an Executor upon a simple contract made by the Testator And he said that the reason for Ley gager is because it is intended that as well as the contract to pay money may be in private so may also the payment be made in private Adjourned Giaves against Drake Hill 1649. Banc. sup IN an Action of Trover and Conversion for divers parcels of Houshold stuff an Exception was taken to the Declaration Arrest of Iudgement in a Trover and Conversion because the Plaintif amongst other things had declared pro sex parcellis plumbi cinerii Anglice Pewter Porringers whereas the word parcellis is uncertain for a parcel doth consist of many things in number and so sex parcelli cannot be properly applyed to six Porringers but if it had béen sex peciis it had been better though that be also incertain Hales held it was all one as if it had béen pro sex peciis plumbi Cinerii Roll chief Iustice enclined it was well enough because though the words are not so proper yet the description is good enough Declaration Words Ierman Iustice was of the same opinion But Nicholas Iustice held that the Latin is not good for if there be proper words for a thing they ought to
judgement in a trover and conversion Prestwood moved that the record is not certified for it is returned by one who is not Iudge there Abatement for it is returned by the Maior Aldermen and Deputy-recorder whereas the writ of Error was to return a record before the Maior Aldermen and Recorder 1 E. 5. f. 3. Jordan and Tompkins case 1648. Upon this the writ of Error was abated Wats against Dix Hill 1649. Banc. sup Trin. 24. Car. rot 1529. THis case was again argued Argument whether a lease well made according to direction of Deed in trust by Hales for the Plaintif and by Twisden for the Defendant I could not hear Hales but imperfectly Therefore I omit his Argument Twisden that argued for the Defendant put the case briefly thus A Feofment was made of lands to I. S. in fee until he should make a lease of 21 years to A. B. from the feast of Philip and Iacob I. S. makes a lease for 21 years to begin at the feast of Philip and Iacob And he held this was a good Lease made according to the direction of the Deed. 2ly If it be not a good Lease yet the use shall not revert to the Feoffor 3ly He held that there is neither a good bargain and sale nor doth it work by way of use For the first point he held if it had been by way of pleading it had not been good in pursuance of the Agreement otherwise it is being found by verdict but here the agreement and the intention of the parties is satisfied and the variance is not considerable de minimis non curat lex 10 Iac. Hob. f. 120. 38 E. 3. f. 7. Waste 35. 2ly In the Iudgement and estimation of men at and from are accompted to be all one in signification In the Stat. of 32 H. 8. it is so taken and in the Stat. of 27 H. 8. of enrollments and words shall be construed according to common intendment And if there be a variance yet the use rests in the Feoffees and shall not revert to the Feoffor for the word until is an Adverb of time Borastons case Sir Andrew Corbets case â—1 Rep. f. 85. Dyer 300. 3 Eliz. Mores Reports 3 Iac. Sir Guy Fairfax case if they make not the estate the estate remains in them And if it do not remain in the Feoffees yet it cannot revert to the Feoffor for he hath conveyed from himself all the estate that he had and if it return to the Feoffor it is a disseisin 2 Rep. Butlers case And for the bargain and sale that cannot be good for here is no Consideration but that which is past and not continuing which is no good Consideration Plow Com. 302.15 Car. Burton and Sherly 2ly The Consideration if there be any is not meritorious for ought any thing appears the monies may not be discharged which are laid out and so the Defendant remains unsatisffed and so there can be no Consideration Allens case 23 Car. 3ly If the debt be discharged yet it cannot raise a use for here is no monies paid but a debt And a use is not raised here because it was the intent of the parties to pass the land by way of bargain and sale Ed. Foxes case 13 Eliz. Plowd 32. 11 Car. Whitfield and Pierce rot 438. And if one intend to pass an estate out of himself he may do it either by the Common law or by Statute law Roll chief Iustice said if lands are passed for money only the déed ought to be enrolled but if it be for money and natural affection Enrollment Vse it is not needfull to enroll it but the lands will pass without enrolment And so here the land passes one way or other and if the use will rise all the other points are out of dores And there is here a continuing consideration to raise a use But the main question is whether the use riseth to the Feoffor if not all the other points are gone And he held that here was only a meer matter of trust the intent is not that the Feoffees shall have any thing by the not performing the trust but the use shall be to the Feoffor And there can be no disseisin in the case And here is a material difference in point of law in the making of this lease Lease for it is made for one day more then was agreed by the deed for that lease was to begin from the feast of Philip and Iacob and this lease is made to be begin at the Feast of Philip and Iacob Ierman Iustice held that the intent of the parties is performed and that there is no material difference and held for the Defendant Nicholas Iustice said here is no performance of the agreement for all the parties agreed not to this Lease for it is made for longer time than was agreed and he held that the use shall be to the other parties by contingency and that here is no disseisin Ask Iustice said all the difficulty is whether the lease be made or not and he held it was a good lease according to the agreement and said that the intent is not that the Feoffees shall have any thing but that it shall result to the Feoffor Roll chief Iustice said Intent the intent of the parties shall not be implyed against the direct rules of Law Nil capiat per Billam nisi c. Pendarvis against Dawkes Hill 1649. Banc. reg PEndarvis brought an Action of Accompt against Dawkes for divers sums of mony as his receiver Arrest of Iudgement in Accompt The Defendant pleads that as to all except ten pounds ne unques receptor upon this an issue was joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement that it doth not appear what ten pounds they are that are menrioned in the plea and so it is incertain whether they be part of the monies for which the Action is brought Roll chief Iustice said he ought to have expressed what ten pounds it is for as it is it is incertain and so not good Venire de novo Therefore take a venire facias de novo for though the issue be not well joyned yet the Declaration is good Cowley against Locton Hill 1649. Banc. reg Trin. 24 Car. rot 932. IN a writ of Error to reverse a judgement given in an Action of Debt upon an Obligation the case was this Writ of Error to reverse a Iudgement ment in Debt One was bound in an Obligation for the payment of certain sums of money to a Feme sole the Feme takes Baron and dies I. S. takes out Letters of Administration of the goods and Chattels of the Feme and brings an Action of Debt upon the Obligation against the Obligor The Obligor pleads that by the entermariage of the Feme the Debt due upon the Obligation became due to the Baron and demands Iudgement Si Actio Chose in Action To this Plea the
words of a will which were these I give all my free lands wheresoever to my Brother Iohn Sanders and his heirs upon condition that he suffer my wife to enjoy all my Freelands in Holford for life the Testator having only a portion of tithes of inheritance in Holford and no lands The question here was whether this portion of tithes shall be accompted free lands within the intent of the will and so the wife be to have them during her life Twisden held the tithes were not devised by the will to the Feme for if I devise my fee-simple lands to Iohn a Stile and his heirs tithes do not pass by this devise for tithes are a collateral thing arising out of land and not part of the land it self 42 Ed. 3. f. 13. 10 Iac. Moyle and Ewers case 31 Eliz. Perkins and Hyndes case In the will here they pass not for there are no words in the will to devise them nor can the words he so expounded and here are other lands devised to satisfie the words of the will A term for years hath more relation to land than tithes and a term could not have passed by the words of the will Next the second Clause doth not pass the tithes for there is no such thing as is expressed in it but if it should pass to the wise by implication yet it cannot pass to Iohn Sanders the Brother for there are neither expresse words nor any implication to devise this portion of tithes to him but the contrary rather is to be collected from the Will Wadham Windham on the other side answered that the Testator calls the tithes in Holford his free lands It is true generally that by the devise of lands tithes do not pass but in a will by the intent of the Devisor they may pass and the word land includes all real things in common intention and legal construction as Lutrels Case is 1 Mar. Bro. Tit. Elegit An Elegit may be of a rent and tithes have a nearer relation to land than rent have 2ly Here is an apparent intention to devise the tithes for he explains his meaning in his second clause of the Will that he intends tithes by the word lands 44 Eliz. Com. Banc. Gery against Gery the question there was what passed by the word rents whether lands passed The words were as to all my lands in Dale I devise my rents c. and here the matter comes in by a Proviso which enlarges the matter Trin. 3 Iac. Fitz. Williams case One devised all his goods Iewels and Plate excepting his lease in C There it was adjudged that all his other Leases passed 4 Ed. â— Br. grants 51. Another circumstance in the Will enforceth this construction viz. the word wheresoever which word expresseth the intent of the Devisor to be so otherwise that word will be idle and to no purpose Hob. rep Stukely and Butlers case It may also appear out of the body of the Will for it appears thereby that his Daughter was provided for in his will by his personal estateâ— and that the intention was to dispose of his lands to the Heir and his Copyhold lands which he had in Holford were surrendred at the time of the making of the Will and so the devise cannot refer to them and besides this is called free lands which distinguisheth them from Copyhold lands and so he prayed judgement for the Plaintif Roll chief Iustice There is a Condition annexed to the Devise Condition that his wife shall enjoy this land though the words in the Will are not very proper to erpress it but we must consider them as used in a Will not in a conveyance Nicholas Iustice said the Devisor himself calls them free-holds and this distinguisheth them from Copyhold lands Adjourned till Saturday following to be argued again Dowse against Masters Pasc 1651. Banc. sup DOwse brought an Action of Debt upon an Indebitatus Assumpsit against Masters for five pound Demurrer to a plea in Debt upon Indebitatus assumpsit in which the Defendant pleaded that he did deliver bils to the Plaintif to the value of 6 l. in which the Plaintif was indebted to him which bills the Plaintif did accept in full satisfaction the Plaintif replyed protestando that he was not indebted to the Defendant that he did not receive bills to the value of 6 l. in satisfaction Vpon this a Demurrer was joyned Roll chief Iustice said Plea the Plea of the Defendant is ill for he doth not say that he delivered the Bills in full satisfaction but that the Plaintif received them in full satisfaction which is not good for the Plaintifs receiving of the Bills must be as they were delivered and not other ways and that is not expressed Therefore let the Plaintif take his judgement nisi c. Ross against Lawrence Pasch 1651. Banc. sup ROss brought an Action of the Case against Lawrence for speaking these Welch words of him viz. Dedingues Will Rols in mudon Arrest of Iudgement in an Action upon the case for Welch words Englished which are in English William Ross hath forsworn himself upon Issue joyned and a verdict for the Plaintif the Defendant moved in Arrest of Iudgement that the words are not actionable as they are rendred in English and so the Action lies not Roll chief Iustice If the words sound in Welch that the Plaintif was perjured yet if the Plaintif do English them in English which doth not amount to perjury it is ill Case and an action will not lie for them Therefore let judgement be stayed Peck against Ingram Pasch 1651. Banc. sup PEck brought an Action upon the Case upon an Assumpsit and declares Arrest of Judgement in an action upon the case upon an Assumpsit that the Defendant in consideration that she the Plaintif would leave her Fathers house and come to the House of the Defendant in such a place did assume and promise unto her that he would mary her and that thereupon she did leave her Fathers House and did come to the Defendants House et obtulit se in maritagium conjungi and because he had not performed his promise Actio accrevit Vpon issue joyned and a verdict found for the Plaintif the Defendant moved in Arrest of Iudgement and took Exceptions that the Plaintif did not shew in her Declaration when she left her Fathers House and came to the Defendants house nor that she gave him any notice thereof Wild moved for judgement notwithstanding the Exceptions for he said though it be not expresly said that she gave the Defendant notice when she came to his House yet it is said quod obtulit se in maritagium conjungi which implies the Defendant had notice and besides here is no need of notice for the Assumpsit is that if she will come to the Defendants house he will marry her and it is not said that when she comes he will marry her so that he is bound by
to be measured by ordinary rules of Law And 2ly Antient grants are to be construed as the Law was at that time when they were made 9. rep 27.6 rep 48. 〈◊〉 H. 7. 〈◊〉 14 E. 3. Fitzh Scire facias 23. and the King is not bound by a general custom as Common persons are 35 H. 6.29 by Prisot 22 Ed. 3. The King shall not pay a heriot upon the purchase of heriatable Lands and we shall find that many maximes of Law upon serious scanning of them are not so certain to be relyed on as they are commonly held to be 5. rep Knights Case Pasc 3 Eliz. B. R. Conisby and Risby Dyer 10 Eliz. and the patentee of the King shall have the same privilege that the King should have had if he had not granted the Letters patents 27 Eliz. Stubs and Rigfords case At another day Arthur Harris spake again to the point that the King had no legall intent to destroy the Copyhold Estate by his patent and therefore it should not be destroyed and cited Grotius de jure belli et pacis 343. and that no such intent can appear in the words of the patent and cited 7. rep Inglefields Case and 17 E. 3. f. 19. and Cooks Institutes 373. and 1. rep 46. and Plow 333. and as to the last point he argued that the Patentée of the King shall be in the same condition as to the reviving of the Copyhold Estate as the King should have been if he had not made the grant because that the King hath the Fee and he may grant it as he pleaseth Dyer 16 Eliz. 337.1 rep 31.10 Eliz. Dyer 266.24 Ed. 3. Fitz. Tit. guard 27. and no priority can be pleaded against the King nor against his Patentee Hill 30 Eliz. Stubs and Rightwayes Case an Action of Accompt against Executors doth lye only for the King It is true that prerogatives inseparable and annexed to the person of the King cannot be granted away by the King but prerogatives separable may be granted away 12 H. 4. Fitzh guard 81. The Grantee of the Grantee of the King shall have the prerogative of the King by reason of the thing granted by the King Brook praerog 17. 21 H. 7.2 Br. entre congeable 4â—â— The King may distrein for a rent seck but not his Grantee because it is a prerogative executory and not executed for in such case it is otherwayes and as to the objection to the cause of the demurrer set forth that the Concessit is not answered because it only sayes mentionat esse concessum I hold it well enough but if it should not be yet it is helped for both partyes do agree in the setting forth of the Letters Patents 34 Eliz. B. R. in Harâ— and Smiths case and the grant is confessed in our rejoynder and though the demurrer should not be good yet the Avowant cannot have Iudgement for he hath not entitled himself to the Action as appears by his grant for his grant is void and cannot take effect rep 46.8 rep 201.39 Eliz. in the Chequer Chamber Where 2. Manours are granted by the name of one of them the grant is not good And in our case Thomas Boothby had nothing in the land at the time of making of the deed of Covenant to stand seised to use as it appears by the Avowants own pleading and the postea cannot help it Dyer 111. Clarks Case Hill 15 Iac. entred Trin. 15 Iac. rot 29. Desmons case 20 H. 615. Hales on the other side argued for the Avowant and prayes a return of the Cattel distreyned first he put the Case at large And he said that the Plaintiff hath not well set forth the Kings grant in his bar and so it is all one as if he had not set it forth at all Plowd 563. and he hath disputed that which we have not alleged and the sur rejoynder is but argumentaive and not positive and nothing appears to the Court and he hath quite mistaken his course and way But admitting the case and the points to be as they are made viz. 1. Whether the new Office be well granted because the word Constituimus is omitted 2. Whether the grant for life be good 3. Whether the grant of the Copyhold for life be a suspension of the Copyhold estate or an extinguishment of it which is the great question in the Case For the 1 point I hold that here is a good grant of this new Office and that the word Constituimus is not necessary because that there are special fées also newly granted 2ly This is not an Office in gross consisting and resting upon it self but it is a relative Office or an imployment incident in the interest of the house granted and therefore the word Constituimus is not here necessary Dyer 200. 3ly If it be not a formal Office yet here is a good grant of an employment to which a recompence may be added although an Assize cannot be brought for it 3 Ass Trin. 6 Iac. Abercromies Case And here the protestation that the King was not informed that this was Copyhold land is unnecessarily alleged and therefore it is not of necessity it should be answered and if it be not well set forth it is not material For the 2 question whether the King was deceived in his grant he said that the King needed not to take notice of any former estates and that the Statute expresseth that it is not necessary to recite them 24 H. 8. 2â— To the 3 point the chief question whether the Copyhold estate be suspended or extinguished he held it was extinguished and cited Knights case Alton woods case and said that the rules of the Civil Law ought not to be applyed to the Common Law nor to be cited to perplex the proceedings thereof and were this in the case of a Common person without doubt the Copyhold estate would be destroyed 20 Eliz. by Popham and Fenn and the King here hath the Fee simple and there is no difference between the case of the King and of a Common person in this regard a thing which will not pass by the King without notice will not pass with notice and here is no prejudice to the King in not taking notice whether by the Patent the Custom to grant Copyhold estates be destroyed or not and here is a necessary consequence in Law that the custom is destroyed because the King that had the fee in the Manor hath suspended the Copyhold by his grant All the Arguments used on the other side are to destroy the Kings grant and the cases put do all differ from our case and do stand upon their own bottoms Nor shall the King be intended to be mis-conusant of his particular grant such as this is although he may be in a general grant lib. Ass 21. pl. 19. Pasch 12 Car. C. B. Glover and Edgars case and it would be a great mischief if the Copyhold estate should be revived As to the last point whether the
Patentee shall be in the same condition as the King was he said that it is not material whether he be or no as to the Case in question and rested upon the 3 question If the King hath free warren in land and grants the land and mentions not the warren yet the warren passeth by the grant And here out Avowry stands pro confesso because the Plaintif hath made no title A grant of a Manor per nomen maneriorum is a good grant of the Manor and here is a good grant and if not yet it is helped by the Statute of 3 4 Phil. Mar. C. 1. 1 H. 7. f. 28 and the Postea here refers not to the grant of the Copy and here is no ouster alleged and if there be there is do disseisin but it passeth an estate for will between the parties Roll chief Iustice It would be dangerous to make the Patent void because the King took no notice of the Copyhold estate and this point is not fit to be argued A thing not materially alleged in pleading is not necessarily to be answered and it is not necessary to create such an Office as this is for it is but an employment The great question is whether after the death of Sr. Iohn Gate the Copyhold estate can be revived or not in the case of the King It may be dangerous whether it be one way or the other As to the pleading we will not make it ill if it may be good Argue the great point again for it is a difficult point and of great consequence Ierman Iustice to the same effect and enclined that the King had no intent to destroy the Copyhold and he held that the Office was well granted because it was but an imployment Nicholas Iustice inclined that the Copyhold was destroyed At another day Wadham Windham argued for the Plaintif and first he put the case at large and then said that 1. It appears by the replication that the Avowant hath no title 2. He confesseth that the Plaintif hath a Title Queen Mary seised of the Manor of Chingford Comitis whereof Pipers Down is parcel grants it per nomen duorum illorum maneriorum and it is not averred that she had two Manors First it is considerable whether the Patent be good by the Common Law 2ly Whether if not yet it be made good by the Statute of H. 8. and he held 1. That it is not good at the Common Law because it is incertain and wants sufficient words and here is an apparent falsity for he hath two Manors and he grants but one and if the King have two Manors and grant them per nomen Manerii this is not a good grant As tithes belonging to a Rectory cannot pass by the name of a portion of tithes neither do all the Statutes of Confirmation of Patents confirm less or greater values granted than are comprised in the Letters Patents 41 Eliz. Pasons case in the Exchequer A presentation to a Rectory where it ought to be ad Medietatem Rectoriae is not a good presentation 2. rep Dodingtons Case Dyer â—31 An ill grant is not helped by the Statute because it is not named 2ly A false suggestion is not helped by the Statute of 34 H. 8. 3 Car. Sir Hatton Farmers case and in our case here is a mistake of a thing and not of the name for it is a Manor for Manors and so there is no true meaning and therefore it cannot be helped by the Statute Pasch 1 Iac. rot 216. C. B. Dawson against Pickering The Queen was seised of two Manors viz. of Rushworth and of Dale and granted the Manor of Rushworth habendum the Manor of Rushworth with the Manor of Dale and it was held an ill grant at the Common Law and not helped by the Statute But it is objected that this Manor may be known by the name of two Manors and so in our case although the King was seised of one Manor and granted this Manor habendum per nomen duorum Maneriorum this is good Mich. 22 H. 6. pl. 16. f. 13. To this the answer is that it cannot be pleaded per nomen without an averment that there are two Manors 2 Ed. 4. f 28. the last case There is a difference between a feofment and a release a feofment may be pleaded per nomen without an averment but a release cannot be so pleaded for in a feofment the livery operates to pass the land 22 H. 6. Hill f. 39. pl. 9.13 and Dyer the Serjeants Case where there is certainty there needs no averment but it is not so in our Case 1 H. 7. f. 28. and it is a forein intendment to suppose that one Manor of Chingford Comitis shall be known by the name of the two Manors of Chingford Comitis and we need not plead by a non concessit because the Avowant hath made no title and so he can have no return 1 H. 7. f. 28. 6 H 7. f. 6. and here is no certainty added to make it certain by the words illorum quod nuper perquisivimus de c. To the second point The Avowant hath confessed the Plaintifs title for he hath confessed that K. H. the 8th hath made it a Copyhold and if the Copy be good our title is good As to the question whether when a Copyhold comes to the King and he leaseth it this doth not so destroy the Copyhold that when the lease is out it may not be Copyhold again I hold that if a Common person lease a Copyhold the Copyhold is destroyed but it is not so where the King leaseth it as it is in our case which ought not to be measured by the Common rule of Law for the Law of the Crown over-rules the Common Law and the Law of Custom 22 E. 3. The King is not bound by Custom as a common person is 35 H. 6. The King having Gavelkind lands may destroy the Custom which runs with such lands pro tempore only and the Kings grant shall not enure to a secondary operation as Knights case is and here is no prejudice to any person that the Copyhold estate should be revived here the consequence may be severed and it is not necessary and therefore the lease of the Copyhold not naming it Copyhold is good As to the Objection made that it is no benefit to the King to make it Copy-hold again the answer is That it is a prejudice to take away a mans privilege and liberty if there were no other inconvenience but here is more for there may be prejudice by losing the Common c. And the rule that a Custom is an entire thing and cannot be apportioned shall not bind the King although it do bind common persons and the Statute makes not the grant good as to the reversion The Copyhold is demised and yet shall be demisable hereafter and so it may be pleaded for pleading follows the Law A Custom interrupted in the right is gone for ever
the grant of the Office of the Custody of the house is a good lease for life notwithstanding it was Copyhold and it is not necessary to recite in the grant that it is Copyhold 2. That after the estate for life is determined the King may grant the house and land again by Copy of Court Roll because the Kings grants shall be taken favourably and not extended to two intents where there is no necessity for it as there is not here and we are not here to intend a collateral intent and so the Copyhold is not destroyed for the Law takes care to preserve the inheritance of the King for his Successors and it may be a benefit to the King to have it continue Copyhold viz. to have Common c. and his election is also destroyed if he may not have it Copyhold So Iudgement was given for the Plaintif nisi Pawsey and Lowdall Pasc 1651. Banc. sup Pasc 1650. rot 275. IN this Case formerly argued Roll chief Iustice Iudgement reversed upon a special Verdict touching a Devise of Copyhold lands and Nicholas and Ask Iustices agreed that the devise of the Copyhold here is a devise to the Heirs of the Father and so a Fee-simple and that the party comes not in as a purchaser and for this cause the judgement was reversed nisi As to the other point whether the surrender of a Copyhold by a Tenant for life be good in this case the Court delivered no opinion Antea Trundall and Trowell Pasch 1651. Banc. sup Hill 1650. rot 670. IN this Case it was held that Tenant in antient Demesn cannot after imparlance plead antient Demesn for he hath made a full defence Where antient Demesne cannot be pleaded for he says Defendit vim et injuriam quando c. which implyes all the rest Mich. 22 Car. Banc. Reg. Yet it was ruled to be again spoken to Peck against Ingram Pasch 1651. Banc. sup THis Case formerly spoken in was moved again and Latch held Whether a good notice that the words obtulit se in maritagium conjungi was a good notice upon the whole matter and therefore that the Action did well lye Roll chief Iustice answered this is a personal thing and ought to be offered to the party himself otherwise it is no notice and that doth not appear here and if there be no notice implyed then the Action lies not and Holmes and Twists case is that there ought to be notice if the thing be to be done by the party himself otherwise if it be to be done by a stranger so is it here but the question only is if notice be implyed here or not Ierman Iustice said there is no tender of mariage if the other party be not there The rule was for the Plaintif to take his Iudgement Rooke against Smith Pasch 1651. Banc. sup ROoke brought an Action upon the case against Smith for speaking these words of him Thou art a poor fellow Arrest of Iudgement in an Action upon the Case for words and art not able to pay 2s in the pound and art not able to pay thy debts Vpon an Issue joyned and a Verdict for the Plaintif the Defendant moved in Arrest of Iudgement that the words are not actionable for 1. the Plaintif is not by them charged with the crime of being a Bankrupt and so there is no particular losse to him 2ly It is not showed that the Plaintiff got his living by buying and selling or that he is indebted and 11. Iac. Brook and Clarks case was cited Twisden on the other side answered that the Plaintiffs credit was impaired by the words and by his credit his livelyhood is in part mainteyned And he cited Viccary and Barns case Adjourned to the next Term. Wild afterwards moved again for Iudgement because the words being spoken of a tradesman he conceived them to be actionable Maynard on the other side held them not actionable because there is no particular damage alleged to grow to the Plaintif by speaking of them and because there is no crime objected against the Plaintiff for poverty is no crime but a man may be poor and honest at the same time and he cited two cases to be adjudged that a particular damage ought to be alleged And said that these Actions are not favoured in Law and therefore if the words be not cleerly Actionable it was not reason to make a forced construction of them to make them so Next the Plaintiff hath not averred that he was able to pay all his debts for all the things bought but only of a debt contracted by the buying of the Oyl mentioned Twisden denyed the cases put by Maynard of the particular damage and held the words actionable Roll chief Iustice said a man may be a Bankrupt and yet be honest for he may become so by accident Averment and not of purpose to deceive his creditors But here is no need for the Plaintiff to shew he had a particular losse by the words for it is enough that he is generally scandalised by them neither is it necessary for him to averr that he was able to pay all his debts as Maynard hath alleged Therefore let the Plaintiff have his Iudgement nisi Antea Owen against Jevon Trin. 1651. Banc. sup Pasc 1651. rot 211. OWen brought an Action of the case against Ievon for speaking these words of her Arrest â—f judgement in Action for words viz. This is the whore that my man Cowell begat a bastard on and spent all my mony upon and the quean hath been too long in Town to my ease Vpon an issue joyned and a verdict for the Plaintiff Twisden for the Defendant in arrest of Iudgment urged that the words are not actionable because there is no special losse or damage alleaged by the Plaintiff hapning to her by reason of the words said that in one Lighfoot and Pigots case it had béen ruled that an Action lies not for saying a woman had a Bastard and he cited also Winter and Barnards case Trin. 1650. in this Court. Vpon these reasons Iudgment was stayed till the other side should move Iay against Iay. Trin. 1651. Banc. sup Trin. 1650. rot 1350. THis case formerly put and spoken to Argument in a special verdict touching the consideration of the words of a will was again spoken unto by Latch wherein he made this question viz. whether the limitation to I. and his Heirs were good or not and he held it was not good for he said that such limitation in case of a freehold is void He confessed that in the case of Pell and Brown 17 Iac. rot 44. the contrary was adjudged but that there did appear such apparent inconvenience in it that upon it the Court was afterwards divided and 21 Iac. in the Serjeants case it was made a flat quaere and ever since it hath been disputable whether a contingent devise be good or not and in Iacob and Tellings case it is not
pacty who is to assign the dower may agrée that the dower shall be assigned without bounding it For consensus tollit errorem But dower ad ostium ecclesiae must be more certain Dower Mich. 43 44 Eliz. Bullock and Finches case Hill 4 Iac. C. B. Roll chief Iustice Of Common right a feme ought to be endowed per metas bundas where the Sheriff assigns dower who is an officer of the Law and ought to prevent incumbrance and disputes But it may be assigned generally of the third part in some cases Consent and the partyes may agree against Common right and here both partyes agreed to take dower in this Manor And though here the termer for years of the land who is a third person be prejudiced by this assignment yet this alters not the case because it is only an estate for years and toucheth no freehold Nicholas and Ask Iustices as Roll. Ierman Iustice If dower be of a third part it ought to be by metes and bounds generally but if it be of a moyety it is not so or if the partyes consent it shall be otherwise Roll if the Sheriff assign dower and do it not per metas bundas it is Error Error if it might have been so assigned and where a feme cannot be endowed per metas bund as she may enter without assignment Iudgement was given for the Defendant nisi c. Smith against the Earl of Dorset Trin. 1651. Banc. sup SMith moved the Court against the Earl of Dorset Motion for an attatchment for disobeying a rule of Court Attatchment for an attatchment for disturbing of him in the possession of certain Lands contrary to the rule of this Court for the Plaintiff to have possession The Court answered that for only disturbing his possession there ought not to be an attatchment granted but if he be put out of possession he shall have an attatchment The Councel replyed that the partyes cattel were driven off from the land which they conceived was an ousting of the party from his possession To this the Court answered that this seemed to be a putting out of possession And therefore ordered that the Defendant should shew cause why an attatchment should not be granted Owen against Ievon Trin. 1651. Banc. sup Pasc 1651. rot 211. THis case formerly spoken unto in arrest of Iudgement and then stayed Iudgement prayed in an Action for words was again moved and Iudgment prayed for the Plaintiff by Serjeant Glyn who argued that the words were actionable because if they were true the party of whom they are spoken is punishable by the Statute of 7 Iac. with corporal punishment and besides the words were spoken since the last Statute made against Adultery which doth aggravate the words and make them more actionable Iudgement was given for the Plaintiff nisi In this case it was said by the Court that it was adjudged in one Thecker and Duncombes case that a woman may have a child in 38. weeks and that a woman by cold or hard usage may go with child above 40 weeks Antea Nelson against Tompson Trin. 1651. Banc. sup Trin. 24 Car. rot 343. NElson brought an action of the Case against Tompson Demurrer in an Action upon the Case upon a promise and did declare that the Defendant in consideration that the Plaintif would cease to prosecute a sute in Law against him did assume and promise unto the Plaintif that he would pay unto him 8 l. the charges of sute which he had been at for breach of this promise Actio acrevit sets forth his damage To this Declaration the Defendant demurs in Law takes this Exception viz. That there is no time nor place set forth where or when he did forbear to sue the Defendant as it ought to be because it is a traversable matter But Roll chief Iustice answered It is not necessary to allege a place of a negative thing to be done viz. to say that he did not prosecute the sute in such a place or at such a time for he ought to surcease prosecution in all places and at all times Therefore let judgement be for the Plaintif except better matter be shewn Friday next Lydaâ—e and Lyster Trin. 1651. Banc. sup Mich. 1650. rot 387. AN Action of Debt was brought upon an Obligation made to a Bishop and his Commissary for the payment of Debts and Legacies Iudgement in Debt upon a Bond reversed the Action was brought by an Executor and judgement given by Default against the Defendant the Iudgement was reversed by a Writ of Error because the Action was brought in the Debet and Detinet whereas it ought to have been brought in the Detinet only because it was brought by an Executor Saunders against Ritch Trin. 1651 Banc. sup Hill 1649. rot 758. IN an Action of Trespass and Ejectment upon a special verdict found The Case fell out to be this Special Verdict in Trespass and Ejectment A man by his last Will and Testament devised all his Fée simple land wheresoever to his Brother upon condition that he suffer his wife to enjoy all his free lands in Holford during her life and the jury found that the Testator had only a portion of tithes in Holford The question was whether the portion of tithes did pass to the wife by this devise Merifield held That the Tithes passed not by the devise because the word lands cannot extend to tithes for that would be a very forced construction and cited Trin. 17 Iac. Banc. Reg. Knight and Knights case and Mich. 39 40 Eliz. Entred 38 Eliz. rot 269. Yow and Hardings case Banc. Reg. That Houses are not devisable by the name of lands and he said that the word wheresoever makes no difference as to make the tithes pass and though there be an implication and an intent in the Testator here to dedevise the tithes yet that will not serve because there wants words to express this intent and though this be in a will yet there must be words used to support the intent of the Testator for wills must be ruled by the rules of the Common Law Ashinghurst and Curtice his case Mich. 7 Iac. Hob. rep 34. the last Edition Mich. 42 43 Eliz. Banc. Reg. a devise of Lands extend not to tithes for tithes are not lands but a meer collateral thing to them and have no relation to them Mich. 1. Iac. rot 192. Mills and Hides case Banc. Reg. 11 Rep. Bridle and Napers case f. 13. b. Trin. 42 Eliz. B. Reg. Sherwood and Winston held that tithes cannot be appendant to a Manor 1 Rep. 111. Albanies case and here are no words in the Proviso to pass the tithes It is true that tithes may lie in tenure and that an Action of debt lies for them but that is by the Statute 19 Eliz Dyer f. 354. The word land in a will doth not extend to tithes and heirs ought not to be
heir and an authority cannot divest them out of him this is not like to the surrendring of Copyhold lands into the hands of the Lord for such a surrender cannot be revoked but this authority may be revoked But which is more the Verdict here doth not find that the two Attorneys are customary Tenants of the Manor but only by way of recital which is not good for they ought to have been found to directly nor doth it appear that they were customary Tenants at the time of the admittance of the party neither is there any possession or title found in the Defendant and so the Plaintif having primer possession the Defendant is culpable neither is it found that the Customary Tenant who gave this authority had an estate in fee-simple in the lands and if he had but an estate for life he could not make such a Letter of Attorney neither is the authority given warranted by the Custom and so he prayed judgement for the Plaintif Wilmot for the Defendant As to the authority he said that it was good and did well enough survive the party that gave it because it is supported with a special direction from the party that gave it 1 H. 7.8 and this is the reason that an Executor may sell lands of the Testator after his death viz. because his authority is so supported 21 E. 4. f. 8. 31 E. 1. Fitz. Grants 45. And here in our case the heir hath neglected his advantage and therefore shall not now be admitted to take it But besides the authority here given is more than a bare authority for it is backed with the circumstances of time persons and of a Custom which is not of a slight esteem in Law and by such a Custom which is very reasonable for it is but to enable the party to dispose of his own lands and far more unreasonable Customs than this are allowed in our Law as that in Kent for an Infant of 15 years of age to have power to sell his lands neither is this Custom contrary to any positive rule of Law for it is here to create the authority to begin after the parties death that created it and so it is not to determine with his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and this Custom extends but within the Manor which is but to a small compass of ground and so the publique is not much concerned in it and the case of 17 Car. in this Court Bambridge and Whaddons case differs from our Case for that was not supported with a custome as this is And it doth appear by the Record that Dalby the Attorney is a customary Tenant and the admission is also found by the Verdict to be secundum consuetudinem Manerii and so that is well enough and then one cannot gain a Copyhold estate by disseisin and so no primer seisin shall be intended as was urged on the other side and it is also found that the Copyholder was seised Roll chief Iustice It will be a hard matter to maintain the Custom Custom if it be not found that the Copy-holder was seised in fee of the Copyhold lands 2ly It is not here found that the land is demisable according to the will of the Lord and so it may be free land and then the custom doth not extend unto it nor is it found that the parties to whom the Letters of Attorney were made were Copyhold Tenants Disseisin And the primer possession will make a disseisin here by the Defendant if the custom be not-well found and so judgement must be for the Plaintif Devise And I cannot see how the Custom can be good it being against the rules of Law Surrender A man cannot devise Copyhold lands and this case is worse but he may surrender to the use of his last Will. If you will not consent to a new tryal we will advise for it is a hard case and my Brothers have not been attended with Books Mich. following Iudgement was given for the Plaintif nisi It was moved again and the Court would advise Postea Batchelour against Parsons Trin. 1651 Banc. sup Mich. 1652. rot 381. BAtchelour brings a writ of Error to reverse a Iudgement given against him for Parsons in an Action of Debt in the Common Pleas and the Error assigned was Error to reverse a judgement in debt that there are two Declarations in the Record one in the Emparlance Roll the other in the Plea Roll and the Original certified upon the writ of Error doth not warrant the first Declaration for it was filed after it Hales answered that the Record is good enough if the Original dowarrant the last Declaration for this is the common course used in the Common Pleas as the Clarks there do inform me there are many Cases like this in the Common Pleas. Wild of Councel on the other side answered that this is a strange course for they ought first to file the Original because it is the beginning and ground-work of the sute and it not being so done here the Iudgement is given without an Original this is a judgement by default and the imparlance is part of the sute Roll chief Iustice Imparlance Intendment Certiorari The Imparlance Roll is the principal part of the sute and to consound things by intendment that the imparlance may be touching another sute is not good and it matters not what the Custom is in the Common Pleas if it be against Law and both Rolls ought to be certified here Ierman Iustice ad idem Roll chief Iustice All the Record in the Common Pleas which is in the custody of the chief Iustice there ought to be certified by him upon the Retorn of the Writ of Error and here the Imparlance Roll is in his custody and therefore he ought to certifie it and if there be two writs of Error Error and one is good and the other naught we will take the best to affirm the judgement The Original ought not to be fitted to the Declaration but the Declaration to the Original because the Original is the foundation of the sute and therefore the course used in the Common Pleas is a preposterous course Original viz. to declare against the Defendant and after to file an original against him to warrant the Declaration It is here certifyed to be one Record and how can we take the emparlance Roll to be part of the Record it being not certyfied with it and if there be variance between the emparlance Roll and the plea Roll Variance it is Error We will advise but we must not suffer new wayes yet we are loth notwithstanding to reverse Iudgements given in the Common pleas Therefore shew cause next term why the Iudgement should not be reversed Kirman against Iohnson Trin. 1651. Banc. sup IN an ejectione firmae brought by Kirman against Iohnson a special verdict was found
in London and the Bill was found against him But Roll chief Iustice answered It cannot be granted upon a motion Good behaviour but you must prefer Articles against him here upon Oath and then you may move for it and if there appear cause in the Articles it shall be granted Mich. 1651. Banc. sup THe Court was moved for a writ to swear one in the Office of a Maior For a Writ to swear one in the Office of a Maior of a Town to which he was elected for the Borough of Trevenny in Cornewall because the old Maior did not swear him in due time as he ought to do but did adjourn the Court before it was done Roll chief Iustice answered that there is no president to swear such an Officer yet ordered that notice should be given to the Town and presidents to be brought into Court if any were to warrant it Whitway against Pinsent Mich. 1651. Banc. sup Pasc 1651. rot 61. A Man made a lease of lands for years by deed Demurrer to a plea in Covenants and covenanted that the Lessée his Assigns should enjoy them during the Term the Lessor made the Defendant his Executor dyed The Lessee assigns over his Term a Stranger enters upon the Assignee the Assignee takes 40 l. in satisfaction for his being ejected of the Assignor and afterwards brings an Action of Covenant against the Executor of the Lessor the Defendant The Defendant pleads the acceptance of the 40 l. of the Assignor in satisfaction of the wrong done him in Bar of the Action and to this plea the Plaintiff demurred Bar. The question here was whether the Action of Covenant did lye against the Defendant since that the Plaintiff had received 40 l. of his Assignor in satisfaction Roll chief Iustice said that here is a double Covenant one of the Lessor and the other of the Assignor and therefore the party may have two Actions Action and therefore he is not here barred to bring this second Action though he have barred himself by the acceptance of the 40 l. from bringing an Action against his Assignor and the Defendant hath not pleaded that the 40 l. was given in satisfaction of both the Covenants for then it had been otherwayes Ierman Iustice to the same effect That they are several Covenants by several deeds and both the parties are severelly bound and satisfaction given by one of them is not the satisfaction of the other And he said if Lessee for years assign over his Term the Lessor having notice thereof and he accept the rent from the assignee he cannot demand the rent of the Lessee afterwards yet he may sue other Covenants conteined in the lease against him as for reparations or the like The rule was for the Plaintiff to take his Iudgement nisi Mich. 1651. Banc. sup SErjeant Glyn moved for a certiorari to remove an endictment of forcible entry that was once before removed hither For a certiorari to remove an endictment and after sent down by a procedendo because the Iustices below will not grant restitution Roll chief Iustice answered There is a plea put in and in such case it is not usual to grant a certiorari yet it may be that it may be granted therefore let the other side shew cause on Monday next why it should not be granted Cantrell against Stephens Mich 1651. Banc. sup CAntreli brought an Action upon the case against Stephens for stopping his way in a Meoow called Madbrook in the parish of Redriff in Kent Arrest of judgement for an Action upon the case for stopping a way upon not guilty pleaded and a verdict found for the Plaintiff It was moved in arrest of Iudgement that the Plaintiff as Lessee to the Haberdashers company of London claimed to have a way for them whereas they having let the land cannot have the way but the Lessée in possession 2ly The prescription is not rightly applyed for it ought to be for them to have a way pro tenentibus et occupatoribus suis which is not so here Twisden answered it shall be intended Tenants and Occupyers to the Haberdashers though it be not said suis Latch said that a prescription per que estate is good in an Action upon the Case because no land is claimed and Green on the same side said the exception taken was helped by the verdict Wild on the other side said that it doth not appear that the Tenant who brings the Action comes in by the Haberdashers who claim the way and so he cannot prescribe to have it Prescription and the prescription ought to be laid pro tenentibus subtenentibus which Roll chief Iustice denyed and said that it is laid that the Haberdashers were seised in Fée postea huc usque and so they have the Fée at the time and may prescribe but it had been better for the party to have shewed that he was their Tenant but it being after a verdict the question is whether it be not helped Vpon reading the Record Roll chief Iustice observed that it appeared not whose Occupyer and Tenant the Plaintiff is but only by way of argument but said the question is whether the verdict do help it and he inclyned it did not Verdict because the Action is brought by the Tenant who hath not entitled himself to the Action for he hath made only a title to the way in the Haberdashers Title but hath derived no Estate from them to himself At another day Roll chief Iustice said we must not take things by intendment and here is a failer in the very gist of the Action for the Plaintiff hath not entitled himself to the Action for he hath no interest for it appears not how he is Ocupyer of the land for he doth not say he is Ocupator suus and as he hath laid the Declaration the Company ought to have brought the Action Ierman Iustice to the same effect and said that upon a demurrer it had been cleerly naught and the verdict here doth not help it for no title appears for the Plaintiff and the verdict cannot give him that he had not before Nicholas and Ask Iustices to the same effect Roll If it had been Ocupator suus I doubt it would not make the Declaration good because it shews not by what title So The rule was nil capiat per billam nisi Tayler against Web. Mich. 1651. Banc. sup Hill 1650. rot 240. IN an ejectione firmae upon a lease for 7 years there was a special verdict found Special verdict in an ejectione firmae and the questions in the Case grew upon the words of a Will that were false orthography viz. I do make my Cosen Giles Bridges my Solle Ayeare and my Yexecutor meaning my sole Heir and Executor Powis of Councel with the Plaintiff held that the Will was good to make Giles Briges the Testators Heir and Executor notwithstanding the mis-writing of the words
Court Twisden on the other side confessed the Books were so but here the Battery is not apparent and the wound is internal and not to be viewed by the Court. Roll chief Iustice said 3 things are considerable 1. whether the Court can increase the damages 2ly Whether the wound be apparent and 3ly Whether the damages given be too small The Court upon view of the party and examination of Chirurgions and Witnesses on both sides upon Oath did conclude that they might increase the damages and that the wound was apparent and that the damages were too small and therefore they increased them to 400 l. and said they would not encrease them more because they could not inquire into all the circumstances of the fact as the jury might but they thought fitting to encrease them in some proportion because the offence was great and such outragious Acts are not to be slightly punished VVallis against Bucknal Hill 1651. Banc. sup VPon a special verdict found in an Ejectione firmae the case sell out to be this Special Verdict in an Ejectione firmse A Copyholder of inheritance made a Letter of Attorney to two joyntly and severally to surrender his Copyhold lands in Fee to certain uses after his death according to the Custom of the Manor The question made by Ellis of Councel with the Plaintif was whether the Custom was good or not he argued that it was not a good Custom In Sir Iohn Davis Reports it is said a Custom must be reasonable and a Custom may be reasonable when it is but against a particular Law and not a general Law but the Custom here thus to convey land is against a general Law Particular Customs may be against publique interest pro bono public but if they be not as in our case they are not they are not good Pro bono publico Next an authority given ought to be Countermandable and to determine at the death of the party but this is not so and therefore it is no good authority 19 E. 3. f. 5. 2ly None can give an authority to another to do a thing which he could not do himself but here it is otherwise and therefore it is not a good authority 3ly By the death of the Copyholder the lands are setled in the heir and this authority given shall not devest them and this is not like the surrendring of lands into the hands of the Lord for a surrender cannot be revoked but this authority is revokable Next the Verdict doth not find that the 2 Attorneys are Customary tenants but only by way of recital which is not good nor doth it appear they were customary tenants at the time of the admittance and here is not found any possession or title in the Defendant and so the Plaintif having primer possession the Defendant is guilty neither is it found that the customary Tenant had see-simple in the land And if he had but an estate for life he could not make such a letter of Attorney Also the authority given is not warranted by the Custom set forth Wilmot of Councel with the Defendant said That this authority here is supported with a special direction which may survive the party that gives it 1 H. 7.8 And an authority may survive the party that gives it else how can an Executor sell lands by the authority given unto him 21 E. 4. f. 8. 31. E. 1. Fitzherb 45. and as for the heir he hath neglected his advantage it he had any and cannot now take it But besides the authority here given is more than a bare authority for it is backed with circumstances of time and person and here is also a Custom to support it and this Custom is a reasonable Custom for it is but to enable a man to dispose of his own lands and there are far more unreasonable Customs than this allowed in our law as the Custom of Kent for one of the age of 15 years to be enabled to sell his lands and this Custom is not against any positive rule of Law for the custom is to create the authority to begin after his death and so it is not to determine by his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and it is extended but within a small compass of land and so cannot be very prejudicial to the publique And Bambridge and Whaddons case 17 Car. in this Court cited on the other side doth differ from this case for tâ—ere was no Custom to support it And it doth appear here by the Record that Dalby the Attorney is a customary Tenant and the admission here is found to be secundum consuetudinem Manerii And one cannot gain a Copyhold estate by disseisin and so here can be no primer seisin intended and it is found the Copyholder is seised Roll chief Iustice said It will be hard to maintain the Custom Custom if it be not found that the party was seiâ—â—d in see of the Copyhold lands But 2ly it is not here found that the land is demisable according to the will of the Lord and so it may be free land then the custom doth not reach it Neither is it found that the 2 Attorneys were Copyhold Tenants and the primer possession here will make a disseisin by the Defendant if the Custom be not well found and then it is for the Plaintif and I cannot see how the Custom can be good it being against the rules of Law for a man cannot devise a Copyhold and here the case is worse Devise but he may surrender to the use of his last Will and Testament At another day Wilmot to the Exception taken That it is not found that the two Attorneys were Tenants of the Manor said there is so much found as shall make them be presumed to be Tenants of the Manor for it is found that the party is admitted secundum consuetudinem Manerii which cannot be a good admittance if they were not Tenants Roll chief Iustice answered to be admitted secundum consuetudinem goes â—o the Admittance not to the Letter of Attorney But we will advise At another day Twisden prayed judgement for the Plaintif and insisted upon the Exception that the two Attorneys were not found customary Tenants for one of them is not mentioned at all and the other is found so only by way of recital and so they have not entitled themselves to the Custom and then the Defendant hath no title The Court ruled to shew cause Saturday following why the Plaintif should not have judgement Antea Custodes against Tawny and Norwood Hill 1651. Banc. sup TAwny and Norwood were jointly endicted for blasphemous words severally spoken by them Endictment for speaking blasphemous words upon the late Statute made against blasphemy and were convicted the parties being removed hither by Habeas Corpus It was urged that the Endictment was not good because it was joynt whereas the words being
willingly kept a Bawdy house and then he is not punishable Pepes on the other side held the words to be actionable and cited Hill 3 Car. Elsey and Harisons case thou art a whore and a Bawd to thy daughter and keeps a Bawdy house which words were adjudged actionable 24 H. 6.14.38 39. Eliz. In the Lady Barkleys case the keeping of a Bawdy house is an offence punishable at the Common Law and therefore the words spoken are actionable Case Roll chief Iustice To call one whore in London is Actionable And the words here are actionable for the keeping of a Bawdy house is a crime punishable at the Common Law for the party may be endicted for it and it shall be intended to be a common Bawdy house although it be not so expressed Endictment and the Plaintiff is scandalised by the speaking of the words Ierman Nicholas and Ask Iustices were of the same opinion Iudgementt was given for the Plaintiff nisi Snelgrave and Bosvile Pasc 1652. Banc. sup Mich. 1651. rot 200. BOsvile brought an Action of debt against Snelgrave Debt against an heir upon an obligation as Heir unto his Father upon an Obligation entred into by him unto the Plaintiff the Defendant pleads riens per discent jour del bref the Plaintiff replyes that he had lands by descent and upon this an issue is joyned and the Iury find he had lands by descent and name them particularly and upon this a Iudgement is given for the Plaintiff in the Common pleas that he shall recover his debt of the lands descended upon this Iudg ment a writ of Error was brought here and the Error assigned was that the Iudgement ought to have been given generally against the Defendant and not particularly of the lands descended 2ly the Iury ought not to have found what lands particularly the Heir had by descent but generally that he had lands by descent because the issue is general whether he had lands by descent or not and therefore the Iudgement given upon this ill verdict is not good Roll chief Iustice The Iudgement is unwarrantable for the verdict is against the issue joyned Iudgement Verdict and the Iudgement here ought to have been generall of all the lands and goods and against the person of the Heir for his false plea and not particular to recover of certain lands as it is here for this is not so good a Iudgement for the Plaintiff as the general Iudgement is and this Iudgement may be against the Plaintiffs mind Error for any thing doth appear to the contrary and a like Iudgement was reversed in Alleâ—n and Holdens case in this Court Ierman Nicholas and Ask of the same opinion And thereupon the Iudgement was reversed Floyd against Morgan Pasc 1652. Banc. sup A Writ of Error was brought to reverse a Iudgement in an Action of Trespasse for taking away of certain Houshold stuff Error to reverse a judgment a trespasse for taxing away of of goods and the Error assigned was that the Declaration was incertain for that it wanted latin words to expresse the things for which the Action was brought for the Declaration is for the taking away of quoddam instrumentum ferri Anglice a gridiron et quoddam instrumentum ferri Anglice a morter et quaedam instrumenta ferri Anglice brandirons which are words utterly incertain for the generality of them what they may signifie Roll chief Iustice My Iudgement is that the Iudgement is erroneous for we must not take meanings because we are bound up to proceed by the rules of the Law and Statutes and we are to consider here whether there be Latin words in the Declaration as there ought to be to expresse the things for which the Action is brought and certainly this word quoddam instrumentum ferri is too general to expresse any thing and the Anglice added to it will not help it for if the word precedent in it self be not fit Latin to expresse the thing the Anglice subsequent is litle to be regarded Anglice Declaration and these words being incertain the Declaration must be incertain and so the Defendant cannot know what to answer to it or how to defend himself as he ought to do which may prove very prejudicial to him Ierman Iustice Issue The issue cannot be certain if the Declaration be incertain and by the Common Law and Statute Law our pleadings must be Latin and where there are not elegant Latin words to expresse things we may use those which they call barbarous words if they be known for use makes a language and where there are no Latin words we may coyn words and add an Anglice to them and here the Declaration is as incertain also for the number of the things as for the nature of them for here is quaedam instrumenta ferri which may signifie any number be it more or lesse Nicholas and Ask ad idem And so the Iudgement was reversed nisi Antea Brian against Twite Pasc 1652. Banc. sup AN Action upon the Case was brought for speaking these words of the Plaintiff Arrest of Iudgement in an Action for words you are a whore and have plaid the whore with so many men you cannot number them upon not guilty pleaded and a verdict for the Plaintiff it was moved in arrest of Iudgement that the words are not actionable for the saying the party had plaid the whore are words incertain and do not enforce any Act of whoredom to be done by her but Ierman Iustice gave Iudgement for the Plaintiff for he said the words should be construed to a common intendment THe Court was moved for Iudgement upon a verdict given 2 years since Motion for Iudgement denyed and the cause stayed till now by the Committee of indempnity but it was denyed because it was the last day of the Term. Nota. Pasc 1652. Banc. sup IT was shewed for cause why a certiorari should not be granted to remove an indictment of battery Certiorari to remove an endictment against an Attorney of his Court preferred at a Sessions of the peace in the Country that the bill was found there and the party hath entred into a recognisance there to go to a tryal the next Sessions Roll chief Iustice The recognisance may be also removed by the certiorari and what hurt can it be if the endictment be removed and the tryal had at the assises and if it be removed hither we will not quash the endictment but the party shall plead and carry it down and try it at the next assises at his own charge Byron against Stonehowse Pasch 1652. Banc. sup Trin. 1651. rot 1658. A Writ of Error was brought to reverse a Iudgement given in a writ of dower in the Common Pleas Error to reverse a judgment in dower in the common pleas the Errors assigned were that the Iudges of the Common Pleas had set a side the verdict given by default by the Iudge of
professision and cited one Hinkes case where these words spoken of the Plaintif being a Brasier were held actionable viz. Thou hast cozened me of a Pan. And if one say to another Thou hast poisoned a man If the man be dead the words are actionable although he doe not say that he did it wilfully The Court enclined the words are actionable because they are scandalous And the rule was Iudicium nisi c. Hill 1652. Banc. sup VVAdham Windham moved for a Certiorari to remove an Endictment preferred against one in Newgate Motion for a Certiorari to remove an Endictment Roll chief Iustice He lies there for murder and is outlawed thereupon yet take a Certiorari to remove the Record for his fact was the stabbing of a man and stabbing is in its nature but felony Felony Murther and is not murther although the party cannot have his Clergy for it by reason of the Statute made by King Iames against Stabbing else by the Common Law he might have had it Ashworth and Sir Tho. Stanley Hill 1652. Banc. sup VPon a Verdict given for the Plaintif in an Ejectione firmae Arrest of Iudgement in an Ejectione firmae Damages Ejectione firmae It was moved in Arrest of Iudgement That the Ejectment is laid to be of three Messuages or Tenements and a Toft which as to the Messuages or Tenements is incertain Roll chief Iustice You move too soon for it may be the Plaintiff will release the damages as to the Messuages or Tenement and take his judgement only for the toft and the Action lies well enough for that Hill 1652. Banc. sup TWisden moved to discharge Sir Thomas Revell and others of their recognisances for the peace in which they were bound the last Michaelmas Term Motion to discharge recognizances of the peace because the Affidavit upon which they were bound was only to this effect That the Prosecutor goes in fear of his life when he goes into such parcels of land whereas in truth those lands are setled upon Sir Thomas Revell by decree in Chancery and the Prosecutor hath also brought 18 several Actions against the Tenants of the lands and hath declared against none of them and there are four Affidavits against the first Affidavit Green on the other side said that the party is in Court and says he is still in fear of his life Peace and prays he may not be discharged But because upon reading the Affidavits and examining the matter it appeared to the Court that they were bound to the peace upon malice and for vexation they were discharged Hill 1652. Banc. sup BY Roll chief Iustice Who ought to repair High-ways of Common right All High ways of common right are to be repaired by the Inhabitants of that Parish in which the way lies But if any particular person will enclose any part of a way or waste adjoyning he thereby takes upon him to repair that which was so enclosed Massey and Aubry Hill 1652. Banc. sup AN Action of Debt was brought upon an Obligation to stand to an Award Arrest of judgement in debt upon an Obligation to stand to an Award The Defendant pleaded that the Arbitrators made no Award The Paintif replies that the Vmpire made an award and sets it forth and assigns the breach and upon issue joyned and a verdict for the Plaintif It was moved in Arrest of Iudgement that the assignment of the breach was not good for the incertainty of it for the breach is assigned upon but a part of the Award for the breach assigned is that the Defendant should pay the Arrears of rent due after the purchase of certain lands and doth not shew what these Arrears are But Roll chief Iustice said That the words since the purchase thereof seem to make this certain yet stay till the other moves At another day the case was moved again and the same exception insisted upon by Barry of the Inner Temple who formerly moved it Hales held the Exception not good and that the breach was well assigned because though it seem uncertain of it self yet it relates to a thing which makes it certain As an Award for one to deliver to another all the goods in such a Shop which belonged to him hath been held to be good But Barry answered That it is utterly incertain and that there is nothing in the Award which can make it certain and here is a four-fold incertainty in the Award 1. It cannot be known what these arrears are that are awarded to be paid 2ly It appears not by the Award for what lands these arrerages of rent awarded to be paid are due for there are no lands mentiond but only two leases of land 3ly It appears not by whom the arrerages are due 4ly It appears not to whom the arrerages are due Roll chief Iustice All the matter is whether it appears that these arrerages of rent awarded to be paid were in question or no and it seems they were because the lease and the rent thereupon reserved are both in question but it is not certain what these arrears of rent are and so the party that is awarded to pay them cannot tell what sum of mony he is to pay Ierman Iustice said he may know because he was Tenant of the land Barry replyed he cannot know when the purchase was made and the arbitrement is that the party shall pay all the arrears since the purchase Curia advisare vult At another day the case was again moved by Barry and exceptions taken that the breach was assigned upon a thing not submitted unto or awarded to be performed And secondly The award is incertain in many things First It appears not what rent was due to be paid but only by implication which is not good Secondly It appears not for what the rent is due nor 3ly How much rent is due and Salmons case in the 5. rep was cited Also it was objected that the award was not finall and concluding and therefore not good Also the Award is unreasonable and for that cause also it is not good and he cited 21 E. 4. f. 40. and 17 E. 4. f. 51. and prayed for the Defendant that judgement might be stayed Hales on the other side prayed for judgement said That the Arbitrators were not to ascertain particularly the rent to be paid but it is sufficient for them to make the Award touching all the differences betwixt the parties and an averment may ascertain the particular things being they are only matters of fact although one may not be admitted by an averment to supply an Award in a matter wherein it was in the substance of it defective before Roll chief Iustice What certainty is there by the Award that the party shall enjoy all his right in the two leases in difference between the parties for the payment of the rent Both parties know what rent is due reserved by the leases but how can the party know what the
arrears are which are accrewed since the purchase Award for how can he know when the purchase was made for it is made by a stranger and what if the stranger will not tell him when he made it so that me thinks the Award is unreasonable and then it cannot be good The rule was Nil capiat per Billam Nisi c. Hill 1652. Banc. sup THe question being upon a motion in Arrest of judgement in an Action brought for money paid upon a Bill of Exchange brought by a wrong person Question in Arrest of Iudgement in an Action upon a Bill of exchange to whom the Bill belonged not and a verdict for the Defendant Twisden said That if money be paid to a wrong person upon a Bill of Exchange if the wrong person do shew the Bill by the Custom of Merchants this is a good payment and the party that paid it shall not be charged again Wild It is doubtfull whether the Custom be so or not But Roll chief Iustice said Custom here is a verdict for the Custom and therefore it were well if the parties would agree to a new tryal but if they will not take your judgement because the verdict hath found it a good custom Custodes against the Inhabitants of Stoneham in Suffolk Hill 1652. Banc. sup THe Inhabitants of the Parish of Stoneham in Suffolk were indicted for not repairing a High-way Motion to set a fine upon a conviction for not repairing a High-way and a verdict found against them The Court was moved that a good fine may be set upon them because the way is not yet amended and a Traveller that passed that way hath lost his horse since the Tryal by reason the way was so bad so that the Horse brake his Leg. Twisden on the other side moved the fine might be respited because there was a contest between this Parish and another which of them ought of right to repair the way and in regard this Parish is very poor and lastly because the way cannot be amended until Summer and then it shall be done Roll chief Iustice The fine shall be set upon you for not repairing it already because the verdict found you ought to do it and the Country suffers by your neglect Fine Distringas Therefore take a Distringas to levy a fine of twenty pounds of the Parishioners for not repairing it Hill 1652. Banc. sup VVIld moved the Court that paying costs the Plaintiff might have a rule to discontinue his Action because there is such a travers now taken that the title of the land in question can never come to be disputed Roll chief Iustice Motion for the Plaintif to discontinue his Action You may do this by the course of the Court without motion therefore why move you for it But I conceive your reason is because there is a peremptory rule of Court upon you to try the cause this next Term and now you move to avoid the contempt you may fall into for disobeying that rule Contempt if you should not go to a tryal Yet pay good costs and discontinue your Action Q. Nota. Hill 1652. Banc. sup THe Court was moved that a Feme that was sued only as an Executrix might be discharged upon putting in Common Bail Motion that Common bail might be accepted Roll chief Iustice It is the common course if there be no special cause of Action against an Executor as a Devastavit or the like for Common Bail to be admitted Hill 1652. Banc. sup HOdsden One of the Attorneys of this Court For an Imparlance was together with another made a Lessee in an Ejectment Lease and would not grant an Imparlance to the Defendant as the usual course is because he is an Attorney of this Court and so claims his privilege Privilege that the Defendant may answer him this term or else he will enter judgement against him for want of a plea. Q. what was done hereupon Hill 1652. Banc. sup IN the case of one Hoff the Court was moved to confirm a rule made between the Plaintifs Attorney and the Defendants Motion to confirm a rule for a Tryal at the Bar. Roll chief Iustice Let it be so for if the Attorneys agrée to reasonable things we will not oppose them Rule But the Attorneys ought not to make rules of themselves Hill 1652. Banc. sup BOynton moved for a Deer-stealer that was convicted at the Sessions in London upon an Endictment preferred against him upon the late Act made against stealing of Deer and removed hither by a Habeas Corpus Exceptions to a retorn of a Habeas Corpus that the Retorn might be filed and took this Exception viz. That it appears not in what Parish the offence was committed as it ought to doe Roll chief Iustice Here is a conviction and a judgement in the Case and the party is in Execution and therefore bring your writ of Error if the judgement be erronious for we will not overthrow it for a fault in the retorn of the Habeas Corpus But because it did appear to the Court that the party was convicted behind his back they moved the Councel to advice of a way how he may come to a fair tryal for the satisfaction of the party Error and of the people For it is a hard case and let the Marshal take him in the mean time And we will also advise Hill 1652 Banc. sup BY Roll chief Iustice If a sum of money be to be levied upon a Corporation it may be levied upon the Maior or chief Magistrate How money is to be levied upon a Corporation or upon any person being a Member of the Corporation This was spoken in the Case of the Town of Colchester in Essex Nota. Hill 1652. Banc. sup THe Court was moved that a Sherif might be ordered to retorn a Writ upon a pain Motion for a Sheriff to return his writ Pain Affidavit Sugestion But Roll chief Iustice answered let him return it but not upon a pain because here is no Affidavit to prove that he refused to return it but only the suggestion of the Councel at the Bar. Hill 1652. C. B. BY Pinsent protonotary of the common place Who may defend a title in Trespasse and ejectment If one move that the title of land doth belong unto him and that the Plaintiff hath made an ejector of his own and thereupon prayes that giving security to the ejector to save him harmlesse he may defend the title this Court will grant it but will not compell the Plaintiff to confesse the lease entry and ouster except he will be ejector himself But it is not so in the Court of the upper Bench for there in both cases they will compell him to confesse lease entry and ouster But Q. for I have not known it so ruled Hill 1652. Banc. sup AN order of Sessions made at Arondell in Sussex for paying so much money
and upon this the Defendant demurred and upon the Demurrer the Case was this A Lease was made for one year the Lessee covenants for him and his Assigns to pay the rent so long as he and they shall have the possession of the thing let the Lessee assigns over his Term the Term expires the Assignee continues the possession after the Term expired and for rent behind by the Assignee after the expiration of the Term the Lessor brings the Action and the question was whether here be such an Assignee that the Action will lie against or not Roll chief Iust held that though here be not an Assignée strictly Assignee Covenant according to the rules of Law yet that he shall be accompted such an Assignee as is to perform the Covenants made between the parties and ruled the Defendant to shew cause why the Plaintif should not have judgement Nota. Wood and Markham Hill 1653. Banc. sup VPon an Ejectione firmae brought For a restitution after an habere facias possessionem executed and a Tryal thereupon had a Verdict was found for the Plaintif but upon an agreement made betwéen the Plaintif and the Defendant the Defendant was to hold the land recovered the remainder of his Term to come and according to this agreement he held it for 2 years but afterwards before his term expired the Plaintif takes out an habere facias possessionem and executes it Serj. Bernard moved for the Defendant upon this matter shewed to the Court That the Defendant might have a rule for restitution But Roll chief Iustice answered It cannot be Restitution but you must have your Action upon the Case against the Plaintif for not performing his agreement Case for the Act seems to be unconscionable Masters and VVallis Hill 1653. Banc. sup Pasch 1652. rot 581. A Writ of Error was brought in this Court to reverse a Iudgement given in the Common Pleas in an Action of Trespass quare vi et armis and the Error assigned was Error to reverse a judgement in Trespass quare vi et aâ—mis that the Trespass is concluded to be contra pacem c. but doth not say publicam Twisden answered that it is well enough because the Action was comment'd by Original but if it had been by Bill it would have been otherwise Roll chief Iustice It is the use in the Common Pleas to make such short recitals but in the beginning of the Record here it is recited at large and if it were not recited at large it would not be good Recital but for the matter it self it is matter of substance and generally it ought to be concluded to be contra pacem publicam yet it is good here as it is for the reasons before alleged Affirmetur judicium nisi c. Hill 1653. Banc. sup VVIld moved against a Sherif that he may not be admitted to file the retorn of a writ directed to him Against filing a return of a writ because an Action upon the Case is depending against him for not returning this writ and if he should now be admitted to file the return he would thereby abate our Action Roll chief Iustice If the writ be not filed it shall not be filed till the Court be moved but he cannot file it as of this Term though he should file it for the return of the writ as it seems is long since past but if the retorn be already filed you move too late Swan and Fenham Hill 1953. Banc. sup Trin. 1650. rot 1072. IN an Action of Trepass and Ejectment a special Vâ—rdict was found Special verdict in Trespass and Ejectment and in it this Custom viz. That the Owners of Houses in the Town of New-Castle in fee simple may devise them by Paroll but not Tenants in tayl and it was further found that the Testator was seised of the Houses in question in fee tayl in possession and of the remainder of them in fee-simple and so seised did devise them by Paroll The question was whether this devise was warranted by the Custom Shafto argued that the Custom did not warrant this devise because Customs are not to be enlarged by construction but are to be taken strictly and according to the letter because they run in abridgement of the Common-law and so are not to be favoured 9 E. 3. f. 38.11 H. 4. f. 33.5 H. 6. f. 51. Next here are immaterial words found in the Verdict for if it be the Custom for Tenant in fee-simple to devise yet this extends not to tenant in tayl 27 H. 6. f. 5.21 E. 4. f. 24. and a devise of rent to be issuing out of these Houses is not good within the Custom although that a rent doth follow the nature of the Land 22 Assis pl. 78.26 H. 8.54 It is true Cook in his Littleton f. 111. saith that one may devise a rent in remainder but I deny this for the authorities of the Books are against him An estate in remainder is not Assets nor can be devised 3 H. 7. f. 23 24. a condition goes to an Estate tayl not to a fée-simple in remainder 6 Rep. f. 33. And here is but a power of an Estate and not an Estate in possession Lit. sect 137. And the finding here that the Tenant in tayl did die without issue is not material for this could not be known at the time of the devise and the devise takes its effect in the time of the Devisor 27 H. 8. Dyer 45.5 Eliz. Dyer Bishops Case 1 Rep. Archers Case f. â—6 2ly Here is no Custom found to intitle the party for a Town cannot have a Custom as it is here found though a Borough may 22 Ass 178 and this is not found to be an antient Vill 7 H. 6. Dyer 22 H. 6. Fitzh praescript 47. Next the Custom is not found that Burgers may devise as it ought to be Turner Iohn on the other side held that some Estate doth pass by the Will and it matters not what Estate passeth and the Owners of Houses in our Case shall be intended to be Tenants in fee-simple and it is not necessary that they be Tenants in fee in possession Perkins devises Plowd 262. Dyer 22.22 Eliz 371. p. 5. and the Custom here found is no more but an ordinary Custom common to other Boroughs and it shall not be intended a special Custom And this case may be resembled to Cases upon the Statute of 32 34 H. 8. for devising of Lands 10 Rep. f. 81. Trin. 34 Eliz. Benefilds Case there cited and 35 Eliz. Howards Case which prove that reversions may be devised Nat. brev 199. a. Perkins Devises Pl. 540. is the very Case in question and the Cases put on the other side come not to our Case Roll chief Iustice It is not necessary in a special Verdict to be so precise as in pleading Special verdict but something may be supplyed and the verdict hath found that he was Owner and that the
make a ditch or raise up a bank to hinder my way to my Common I may justifie the throwing of it down and the filling of it up Mich. 1655. BY Glyn chief Iustice Damages in Dower If a Feme bring a writ of dower and recover and the Defendant die the feme shall have her damages against the Terr-Tenants Mich. 1655. A Writ of Error quod coram vobis residet is when a writ of Error is brought to reverse a judgement given in the Common pleas Error quod coram vobis residet what it is or other Court where the Record was formerly removed into the Court of the Vpper Bench and by reason of the death of the party or for some other cause rests undetermined by reason of the abatement of the former writ of Error Le pool and Tryan Mich. 1655. Banc. sup VVIld moved for a prohibition to the Court of Admiralty to stay a tryal there in a Trover and Conversion For a prohibition to the admiralty in which they procéed upon a pretence that the goods in question were taken upon the High Sea and that by the late Act they have exclusive power in all such cases which is not so Glyn chief Justice It was resolved in Cremers and Cokelyes case so adjudged that they have no such power Therefore take a prohibition nisi c. Morden and Hart. Mich. 1655. Banc. sup MOrden brought an Action of debt upon an Obligation to stand to an Award against Hart. Vpon nil debet pleaded Arrest of judgement in debt upon an Obligation to stand to an Award and a verdict for the Plaintif it was moved in Arrest of judgement and the exception taken was that the Award was made but of one part and so not binding to all the parties submitting The case was this One Stephens and Body on one part also Hart on the other part submitted to stand to the Award The Arbitrators awarded that Body should pay a certain sum of money unto Hart in satisfaction for the differences betwixt Body and Stephens on the one part and Hart on the other part which was objected could not be good for the money paid by one could not be in satisfaction for another and so the Award is not made to conclude all the parties submitting for Stephens was not concerned in it and the Award is with an Ita quod which ought to be a general Award and include all parties and therefore if it be void in part it is void in all But Green on the other side answered though the Award should be naught in part yet it may be good as to Body that paid the money and the moneys ought to be received as they are paid and that is for Body and Stephens and may be well in satisfaction for both of them It was also urged by Howell on the same side that it appears that Body and Stephens are partners and this will make an end of the matter for then the money paid by one of them may satisfie for the other Award in part Glyn chief Iustice Here is a good Award betwéen two of the parties that submitted but there appears nothing to be awarded as to Stephens the third party for it doth not appear that he can take any benefit by the Award of the money to be paid by Body or that it can be any satisfaction for him but only for Body Iudgement for the Defendant Iudgement for the Defendant nisi c. Busfield and Norden Mich. 1655. Banc. sup A Writ of Error was brought by Busfield against Nordon to reverse a judgement given in the Court Military of Rippon in an action upon an indebitatus assumpsit for wares sold Error to reverse a judgement upon an indebitatus assumpsit by the Bail wherein there being a judgement given against the principal a scire facias issued out against the Ball and a judgement was thereupon and against him the bail thereupon brings a writ of Error to reverse both these judgements and assigns for Error that there was no issue joyned in the first judgement and that being erronious Bail cannot reverse the principal judgement The writ abaed and being the ground upon which the scire facias did issue forth whereupon the second judgement was given the second judgement cannot be good Glyn chief Iustice But the principal judgement ought to be reversed by the principal and not by the bail and therefore the writ of Error is not well brought by the bail therefore let it abate Vidian and Fletcher Mich. 1655. Banc. sup VPon view of an Infant brought into Court of to be inspected Scire facias for an Infant to â—everse a fine levâ—ed ouâ—ing Covertuâ—e who had during coverture joyned with her husband in levying a fine of her lands she was by the Court adjudged within age whereupon a scire facias issued out to the terr-Terr-tenants who came in and pleaded that she was of full age at the time of the fine levied upon which plea issue was joyned and a tryal was had at the Assizes and a Verdict for the Plaintif who now came in Court and prayed for judgement upon the Verdict Glyn chief Iustice The Court is to judge of the Infancy Iury not to try Infancy and not the Iury and therefore you have not proceeded duly but the proceedings do no hurt for we judge she was within age Fine reversed Therefore let the fine be reversed nisi c. Nota. and the hundred of Crondon Mich. 1655. Banc. sup AN Action of Trespass upon the case was brought against the Hundred of Crondon in Hampshire upon the Stat. of Winchester Arrest of Judgement in an Action upon the Statute of Huc and Câ—yes Case Statute by one that was robbed within the hundred upon the tryal a verdict passed for the Plaintif It was moved on the behalf of the Hundred in Arrest of judgement 1. That the Plaintif had mistaken his Action for whereas he hath brought a general Action of Trespass upon the case he ought to have brought an Action upon the Statute 2ly He declares that he took his Oath before I. S. a Iustice of Peace in the County Whereas it should be for the County 3ly He hath not expressed that he took his Oath before a Iustice assigned to keep the Peace 4ly There is no issue joyned 5ly He saith that he took his Oath 20 days but doth not say next before as the Statute directs Windham on the other side answered to the first Exception that it is usual of latter times to declare in an Action upon the Case generally To the second he said it is no exception for a Iustice of Peace is not an Officer affâ—red to a place Serjeant Twisden But it doth not appear that you took your Oath 20 days before your Original sued out Glyn chief Iustice That appears well enough upon the Record Variation But the writ here is in an Action upon the case
he was taken and imprisoned The Defendant pleaded an award made by Sir John Rivers and Sir Nicholas Miller two Iustices of Peace between the parties in Bar. Twisden of Councel with the Plaintif said that the award doth not bind the Plaintif for the award concerns only the speaking of the words and speaks nothing of the imprisoment And 2ly the Award is not good for there is not satisfaction made by it on both parties Wild of Councel with the Defendant held that the Declaration was not good and that therefore he needs not to justifie the plea for though it should be ill yet the Plaintif can have no judgement and he said the Declaration was naught because it alleged no day when nor place where the Defendant charged the Plaintif with the felony and made him to be imprisoned Twisden answered that there is a place alleged and that though there were none yet it is well enough for part and judgement may be given for that To which Roll chief Iustice agréed Wild replyed then the plea is good But the Court answered it is not and what say you to the Arbitrement Wild answered it was good to which Ierman and Ask Iustices assented Roll chief Iustice answered It is a benefit to the Parish and so to the Overseers of the poor Nicholas Iustice to the same purpose Roll chief Iustice said that the Declaration is ill and the Plea also for the Plea is entire Declaration Plea and yet goes not to all the matter alleged in the Declaration but the plea is only to part of them and therefore if any part of the Declaration be good judgement ought to be given against the Defendant for that part and the plea in Bar is naught so judgement ought to be entirely for the Plaintif But it is to be considered concerning the damages Rosyer against Langdale Hill 1650. Banc. sup Pasch 1650. rot 100. ROsyer an Executor brought an Action upon the Case upon an Assumpsit against Langdale a Feme Administratrix Error to reverse a judgement in an Assumpsit by an Executor against an Administratrix and declares that the Defendant in consideration that he would forbear sute until she had taken out Letters of Administration did assume and promise to pay unto him the Plaintif a certain sum of money owing unto him by the Intestate Vpon Issue joyned and a Verdict and a Iudgement for the Plaintif The Defendant brought a writ of Error to reverse the Iudgement And Baldwin of his Councel took these Exceptions 1. That the Plaintif had set forth no consideration in his Declaration for the Assumpsit for all that is alleged is that the Plaintif should forbear sute till the Defendant had taken out Letters of Administration which is no consideration at all for the Defendant was not lyable to be sued as Administratrix until she had taken out Letters of Administration except there were a cause depending as here is not And he cited Hob. rep Bidwell and Cottons case That if there be a sute commenced though there be no cause for it yet forbearance to sue is a good cause to ground an Assumpsit upon Assumpsit A second Exception was that the Venire facias is not awarded per Curiam nec in Curia Roll chief Iustice held the 1. a good Exception for the Defendant was not chargeable before Letters of Administration taken forth if she do not intermedle with the goods of the Intestate and it doth not appear here that she did neither is the Defendant compellable to take forth Letters of Administration for they may be granted to the next of Kin if the Ordinary pleaseth according as the Statute ordains Ierman Nicholas and Ask Iustices to the same intent thereupon the rule was reversetur nisi c. But because Day being of Councel on the other side took some Exceptions to the writ of Error and the retorn thereof It was adjourned Staples Hill 1650. Banc. sup THe Court was moved to supersede a scire sacias brought by a prisoner of the Marshalsea For a Supersedeas to a Scire sacias upon the late Act for discharging of poor prisoners because the Certificate of the cause for which he was a prisoner was false and so the procéedings erronious for the party was in execution for Trespass which is not within the Statute made for the prisoners 2ly Because there was no due notice given to the party at whose sute he lay in execution as the Statute doth direct there should The Court ordered to view the Certificate 〈◊〉 Den uneâ— and to file it otherwise there should be no proceedings upon the scire facias and directed the party to demur upon the scire facias if it be not good because the matter alleged cannot be pleaded to it Custodes against Arskot Hill 1650. Banc. sup MAynard moved the Court for one Arskot that was outlawed for murther For time to bring a Writ of Error and had leave to bring his writ of Error that he may have longer time to bring it because the King uses to sign the writ and the Parliament had not ordered who shall do it now and therefore the Attorney General must advise with the Parliament about it which cannot spéedily be done Thereupon time was granted till the Attorney could conveniently do it Newcomin against Leigh Hill 1650. Banc. sup Pasch 16â—0 rot 52. LEigh did assume and promise unto Newcomin Whether a good Assumpsit that if Newcomin would take one Loe for his Debtor in the room of one Cooper and would spare Loe until such a time for the money that then he would pay the money to Newcomin if he did not and upon this Assumpsit Newcomin brought his Action against Leigh The question was whether this were a good Assumpsit And the Court held it was not because it is a collateral thing and he doth not say that he will discharge Cooper and so Newcomin may sue Cooper notwithstanding the Assumpsit For though it may be it was the intention of the parties to discharge Cooper yet it appears not so by the words of the Assumpsit set forth And it was then said by Roll. That if I promise to pay to Iohn a Down a Debt which Iohn a Stile oweth to Iohn a Down Nudum pactum this is nudum pactum Bawsy and Lowdall Hill 1650. Banc. sup Pasch 1650. rot 275. VPon a special verdict in an Action of Trespasse and Ejectment Special Verdict upon the devise of a Copyhold in Fee the case in effect was this A man seised of Copyhold lands in fée devisable by Custom deviseth them in this manner I give and bequeath my lands c. to my son Richard during his natural life and after to the heir of his body for ever Hales of Councel with the Plaintif made these questions 1. whether by the words of the Will a Fee-simple at the Common Law passeth because there is an estate to Richard for life and after
is a Iudgement well given Plea and it is too late to assign it for Error But the Court advised Postea Kerman against Iohnson Trin. 1651. Banc. sup Trin. 1649. rot 153. KErman brought an Action of Trespass and Ejectment against Johnson Special verdict in Trespass and Ejectment and upon a special Verdict found the Case was this A man devised to I. S. his whole estate paying his debts and Legacies and dies possessed of Goods and Chattels to the value of five pounds only and dyed also seised in fee of divers lands and was indebted forty pounds at the time of his death The question was whether the lands passed by the Devise Barry of Councel with the Plaintif argued that the lands did pass because that wills ought to receive a favourable construction And 2ly The intent of the Testator is to be considered who by the words all his estate did mean to comprehend as well his land as his goods and chattels for there is no restraint of the words here 7 Ed. 3.10 The word estate is a word of large extent and extends as well to the real as personal estate if it were in Case of grant much more in the case of a Will And there is another word used here to explain the Testators meaning to be to devise his lands as well as his goods and that is the word All which comprehends all manner of estates without exception Next if the land should not pass his debts and Legacies cannot be paid according to the express intent of the Testator and the intent of the party ought to be satisfied although the words be not proper because it is in a will though it might be other wise in a grant And whereas it is objected that the Iuries finding of the value of the debts and Legacies is to no purpose because the will cannot be helped by the averment of the Iury. I answer that averments if they stand with the will may be received to make the Testators intent to appear But besides this is not an averment only but a true stating of the Case to the intent to find out the Testators meaning 3ly The devisee of the land is not made Executor but Trustee or Devisee this is since the Statute of Devises 32 H. 8. The 2. question is what estate the Devisee hath in the lands I conceive he hath Fee simple because he hath all the Estate which must be the largest and that is Fee-simple Hob. rep pl. 280. The word whole goes both to the quantity and quality of an estate also And here the consideration that he is to pay all his Debts and Legacies is a good consideration to pass the fee-simple of his lands and though there may be a surplusage after the Debts and Legacies paid this hinders nothing for it is his intent that the Devisee shall have that surplusage and so he prayed Iudgement for the Plaintif Twisden for the Defendant argued that either nothing passeth by the Will or if any thing then only an estate for life passeth He agreed that improper words may sometimes pais things yet sometimes proper words will not passe things viz. if the intent of the party appear to be contrary 24 Eliz in the Earl of Northumberlands case A Devise of all his Iewels did not pass his Collar of Esses and his Iewels annexed to his Parliament Robes and the words here are not that he deviseth all his estate in his lands but his whole estate generally and if the words here should pass the lands yet the fee simple passeth not but only an estate for life in the lands which do pass nor do the words paying his Debts and Legacies cause the Fee-simple to pass for here is no likelyhood of any loss to the Executor for the words are not that he shall pay all his Debts and Legacies and if he be an Executor as the contrary appears not he shall not be charged with more than the personal estate will discharge The words do amount to a Condition and it is not found that there are any Debts or Legacies paid and so it is not performed and the heir may well enter into the lands in question for the Condition broken 2ly The Verdict doth not find how the lands are held whether in Socage or by Knights service and so it appears not whether they can be devised or no and they shall not be intended to be Socage lands Dyer f. 207. Hill 32 El. rot 2. and Pell and Browns case 3ly It is not found that the Testator dyed seised of the lands as it ought to have been and he prayed Iudgement for the Defendant Special Verdict Roll. chief Iustice to the second Exception to the Verdict answered that in a Special verdict it is not necessary to find whether lands be held in Sorage or by Knights Service and he said that the words in the Will do goe to the nature and extent of the estate as Barry urged and he doubted how the verdict shall supply the Will if it be defective for that is only to make the intent of the Will certain Adjourned to be argued again Postea Marshal against Ledsham Trin. 1651. Banc. sup MArshal as Administrator brings an Action of Debt for rent Arrest of Judgement in Debt and upon a Verdict found for the Plaintif the Defendant moved in Arrest of Iudgement and takes exception that the Plaintif had not shewn by whom the Letters of Administration were granted unto him as he ought to do but only says that the Administration debito more commissa fuit But it was answered that it is too late to move this Exception after a Verdict for the Iury have now found that the Administration was duly granted and the Letters of Administration were produced in Court and therefore not necessary to shew who granted them Declaration and it was said that in a Declaration it is not necessary to shew by whom Letters of Administration are granted or to say they were granted by him Cui pertinuit or per loci illius Ordinarium But in a Plea in Bar it is otherwise for this is not the cause of the Action Plea and effect of the sute but to shew they have been in the Spiritual Court Judicium nisi pro quaerente was afterwards given Antea Giles against Timberley Trin. 1651. Banc. sup Mich. 1650. rot 176. AN Ejectione firmae vi et armis was brought in the Common Pleas Error to reverse a judgement in an Ejectione firmae and a judgement given for the Plaintif upon a nihil dicit and in a writ of Error brought in this Court to reverse the judgement the Error assigned was in the judgement which was entred thus Ideo consideratum est quod recuperet and the word Capiatur was omitted which ought not to be because the Action is a Trespass vi et armis Roll chief Iustice said It is an ill course they use in the Common Pleas to enter
the judgement so in this Action Iudgement for by this course the Plaintif shall gain his possession of the land and the Defendant cannot bring his writ of Error until the writ of Enquiry returned and the Iudgement perfected Error which it may be will never be for when the Plaintif hath gotten possession of the lands he will little regard the damages Therefore let the judgement be reversed Antea Elyott against Blague Trin. 1651. Banc. sup ELyott brought an Action upon the Case against Blague for speaking these words of him viz. Thou art a Bastard getting Rogue Arrest of Iudgement in an Act on for words and hadst a Bastard at Oxford and art a pocky rogue and for ought I know thou hast filled my Bed full of the French pox and no such pocky rogues shall lie with me Vpon not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of Iudgement that the words were not actionable because some of them were adjectively spoken and others uncertain and some of them clearly not actionable But Twisden answered that if the words were taken together as they were spoken they were very scandalous and actionable and cited one Colyers and Lydyers case 1 Can To which the Court agreed and ruled the Plaintif to take his judgement except better cause should be shewn Custodes against Iinkes Trin. 1651 Banc. sup SErjeant Bernard moved to discharge an Order of Sessions made against a Feme Covert to keep a Grand child of hers To discharge an Order of Sessions Order of Sessions because a Feme Covert was not bound by such an Order Roll chief Iustice answered that her Husband is bound to keep his wifes Grandchild by the Statute but in regard that the Husband is not charged by the Order but the wife who is covert is only charged Therefore let the Order be quashed Trotman against Standard Trin. 1651. Banc. sup Trin. 1650. rot 1768. IN an Action upon the case a special verdict was found Special verdict in an action on the case upon which the case fell out to be this Two being seised of lands in Fée did make a charter of feoffment unto two others and to their heirs and in the deed was a letter of Attorney to enter into the lands in the name of the seoffors and make livery and seisin according to the effect of the deed and livery of seisin was made to one of the Feoffees by the Attorney in the absence of the other Feoffee The question was whether here were a good livery and seisin or not 2ly Whether the letter of Attorney was good or no in regard it had false latin in it for the letter of Attorney was made by two and the words of it are pro me in nomine meo to make livery which are words of the singular number whereas they ought to be of the plurall Hales as to the 2d question held the letter of Attorney good enough because the authority given to the Attorney proceeds from both the Feoffors and therefore the words shall be intended to be the words of both of them as spoken by them severally And he also argued that the letter of Attorney was well executed to both the Feoffees because it was by deed and he cited 15 E. 4 f. 18. and he said if the livery had been made by the Feoffor himself it had been good without question and there is no difference between that and our case because it is made according to the effect of the deed and the Feoffee who is present is Attorney for the Feoffee that is absent to receive livery for him and the effect of the letter of Attorney is executed although the words are not Cooks Lit. f. 5. and Hoxon and Polts case in the Exchequer 34 Eliz. Boltons case Livery made to the husband was held a good Livery to the wife also Latch of Councel on the other side made two questions 1. Whether here was a good authority 2ly Whether it was well executed For the first he argued that here was no authority given to the Attorney to enter into the lands in the name of both the Feoffors for the words are that he should enter in nomine meo which cannot comprehend both of them the words being in the singular number and he agreed that Livery made by the Feoffor himself to one in the name of both had been good but here the livery is by Attorney and an Attorney hath nothing but a bare authority given him which ought to be strictly pursued especially it being to passe away an Estate He also took exceptions to the special verdict and said that the tryal upon which the verdict was found was directed out of the Chancery to discover a fraud and the verdict finds nothing according to the direction and so it ought to be set a side besides the verdict in it self is incertain for it is of 300 Acres of land generally which is incertain and so the Plaintiff can have no Iudgement for the Declaration warrants not the verdict for the Declaration mentions Houses and Cottages besides the 300 Acres of land 2ly The verdict doth not find the date of the Indenture and the Title to the land is to commence a die datus Hales answered 1. It shall be intended the day of the date 2ly It shall take effect after the delivery if there be no day of the date expressed And to that exception to the verdict that there are not so many Acres conteined in it as are expressed in the Declaration he answered that the Iudgement shall go to all which is land in kind only and shall not extend to Houses and Cottages and there appears to be a residuum or surplusage Verdict Roll chief Iustice said that it is incertain by the verdict what lands are meant for there are 400 Acres of land and four messuages and four Cottages and 40 Acres of medow in the Declaration and so there appears to be a residuum besides the land found in the verdict which makes it to be incertain what is found And though it should be a verdict for part and be uncertain for the rest although the Plaintiff will relinquish his damages for the rest this will not help it for there must be two Iudgements and the verdict is ill as to that which is found yet he held that it might be good without relinquishing the damages at all because the verdict is good for so many Acres as are in the Declaration and it shall be intended that the Iury mistook the number of the Acres and intended by the verdict no more than the arrable land Ierman and Nicholas Iustices doubted whether there be a verdict at all because the Iury have not found the things conteyned in the Declaration Roll chief Iustice and Nicholas mutate opinione held the verdict good but said it would have béen otherwise upon a demurrer and it was said that if one declare for 40 l. and the