the very Common Law see Ouleys case 19. Eliz. in Dyer but Hutton doubted whether this bond is void by the Common Law because the Statute of the 23. H. 6. inflicts so great specialty upon the Sheriffs for extortion and after judgement was Commanded to be entred for the Defendant in the action if no other matter be shewed to the contrary before such a day In trespas quare vi et armis one such being his servant cepit et adduxit at D. in Essex the Defendant pleaded that he was a vagrant in the same Countie and he not having notice that he was servant to another he retained him and it was moved by Finch if I retain the servant of another man in the same Countie where I and his Mr. inhabit this is not justifiable though in veritie I had not notice of that and this according to the express book of the 19. Ed. 3. 47. Hobert the book may not be law for it is a hard matter to make me take notice of every servant which is retained in the same Countie and yet perchance if this retainer be upon the Statute of labourers at the Sessions this is notorious and I ought to take notice of that at my peril but it is otherwise of a private retainer for though it is within the same Countie yet being a private matter in fact the Law will not compel me to take notice of that at my peril otherwise if this be matter of record 2. H. 4. 64. and Hobert and Winch seemed to agree and then Finch moved that the Plantiff had charged the Defendant with his servant by cepit et adduxit and the Defendant excused himself and never traversed cepit et adduxit see 11. H. 4. Hutton and Hobert the receiving and the entertaining of a servant may not be said to be vi et armis Mr. Spencers case HArvy Serjeant came to the barre and demanded this question of the Court in the behalf of Mr. Spencer a man was seised of land in fee and sowed the land and devised that to I. S. and before severance he died and whether the devisee shall have the Corn or the executor of the devisor was the question and by Hobert Winch and Hutton the devisee shall have that and not the executor of the devisor and Harris said 18. Elizabeth Allens case that it was adjudged that where a man devised land which was sowed for life the remainder in fee and the devisor died and the devisee for life also died before the severance and it was adjudged that the executor of the Tenant for life shall not have that but he in remainder and Winch Iustice said that it had been adjudged that if a man devise land and after sowe that and after he dies that in this case the devisee shall have the Corn and not the executor of the devisor nota bene Dodderidge against Anthony Entred Mich. 19. Jac. Rot. 1791. ENt. Mich. 19. Jac. Rot. 1791. Peter Dodderidge brought an action of accompt against one Anthony and he declared that he deâ—ivered to the Defendant so many pieces of cloath called Bridge-water red to be sold at Bilbo in Spain and the Defendant said that he sold the same cloath at Bilbo in Spain for 40. l. 18. s. English to be paid in May next insuing the sale which was in November before and over he alledged the Custome of Merchants to be that if any Merchant had goods in the same Kingdome to be sold to another Merchant and he sell the goods to be paid at a day to come and this is done before a publick Notary and thereby a Bill signed and acknowledged to him in his name who sold the goods and that if the Merchant who so sold the goods delivered the Merchant who was owner of the goods this Bill so taken in his name this shall be a discharge to him of the goods and he averred that he sold them to a Spanish Merchant and that he took a Bill accordingly and at London offered that Bill to the Plantiff who refused that and upon this plea the Plantiff demurred Attoe argued that the plea is not good because he had not alledged that the partie who takes such a Bill may plead that and the Custome is also alledged with an if if the party sell and if he take the Bill and not with positive averment that he may so sell and may so take the Bill which being delivered to the owner of the goods shall be a discharge to the factor who sold the goods and here this custome is not good by the Common Law for if I deliver goods to another to sell and he sell them to be paid the money at a day to come this is not good for he ought by his sale to make a compleat contract and if I sell my horse for 10. l. I may retain the horse till the money is paid for till then the contract is not compleat and so in this case and here the Plantiff shall have an action of accompt upon this delivery and if he sell them otherwise or do not sell them for ready money he had gone beyond his Commission and this Custome is unreasonable that the Bill shall be taken in his name who sold the goods but perchance if the custome had been alleadged to take the Bill in the name of the owner of the goods this had been good but in our case the owner of the goods may not sue nor have any remedy for his goods except the factor will go into Spain and sue the said Bill and it is unreasonable to leave this to the pleasure of my factor whether I shall have any remedy for my goods sold and it is very unreasonable that I shall be paid with a Bill which may not be sued and here the Plantiff is a stranger to the Custome of Spain and shall not be bound by that Serjeant Harris to the contrary the Custome which is alledged is good among Merchants though it is not good according to our Common Law and so if two Merchants trade joyntly and one of them dies before severance of the goods yet his executor shall have his part and not the Survivor and so by the law of Merchants a man cannot wage his law in debt upon a simple contract by which it is apparant that the laws of Merchants differ from our laws and indeed the laws of Merchants are National laws and that this is the Custome in Spain is confessed by the demurrer and then we may not examine that by the reason of our laws and the laws of Merchants ought to be favoured for trading sake which is the life of every Kingdome and by the law of Merchants a Bill without seal is good and yet by our law it is but an escrowl and so I pray judgement for the Defendant Hobert chief Iustice when the Merchant had delivered goods to the factor to sell he had made the factor negotiator gestorum and for that
prayed judgement in the case for the Defendant Finis M. 20. Jac. The Bishop of Glocester against Wood before NOw the case between the Bishop of Glocester and Wood was adjudged Hobert and Winch being only present and first it was resolved by them that when the Bishop let parcel as 20. acres for life and after he lets the Mannor it self to another rendring rent in this case the rent issues out of the intire Mannor for if in debt for the rent the lessor do declare upon a demise of the Mannor omitting the reversion of this parcel the declaration is evill and upon non dimisit pleaded it shall be found against him Secondly this they held that the Herriot reserved shall go with the reversion and if this do not go with the reversion to the lessee of the Mannor yet the Plantiff shall not have the Herriot and then though the Defendant had not good title to the Herriot yet if the property of the Herriot do not appertain to the Plantiff he shall not have a trover and conversion for the Defendant had the first possession and judgement was commanded to be entred for the Defendant if no other cause was shewed before next thursday Hill 20. Jac. C. P. Bulloigne against William Gervase Administrator BUlloigne brought an action of debt upon an obligation of 12. l. against William Gervase Administrator to I. S. and the Defendant pleaded that the intestate died outlawed and that the outlawrie alwayes continued in force and upon this the Plantiff did demur generally and it was argued by Attoe for the Plantiff for the plea is not good for this is a plea only by way of argument that he shall not be charged for this debt because he had not assets and in this case this outlawrie ought to be given in evidence upon nothing in his hands being pleaded and it ought not to be pleaded in barre for by possibility the outlawrie may be reversed and then the Administrator shall be charged if he had any goods and he vouched a case in this Court Trin. 27. Eliz. Rot. 2954. Worley against Bradwel and Dame Manners his wife Administratrix to Sir Thomas Manners and the feme pleaded outlawrie in the intestate and the Plantiff demurred generally and it was adjudged to be no plea and note that the record was brought into the Court and read accordingly Hitcham Serjeant to the contrary the record in Manners case was not well pleaded for the Defendant only shewed that a Capias ad satisfaciendum issued against the Testator and did not shew any recovery or judgement against him and that was the reason of the judgement in that case and the Plantiff here ought to have demurred specially as the case of 27. of Eliz. for otherwise he shall not have advantage of this plea and the plea is only evil for the manner for it is apparant that by the outlawrie of the Testator all his goods are forfeit and this is the reason of the book of 16. E. 4. 4. it is a good plea in an action of debt to plead an outlawrie in the Plantiff and to demand judgement of the action and not judgement of the writ for the debt is forfeit to the King by the outlawrie Hobert Hutton and Winch the president shewed by Attoe is not answered for though the pleading of the outlawrie is without shewing of a recovery and judgement yet the outlawrie is good till it is reversed and Hutton said that in some cases an Executor or Administrator had goods though the Testator died outlawed as if the Testator let for life rendring rent and the rent is behinde and after the Testator is outlawed and dies this shall not be forfeit but his Executors shall have the rent and if a man make a feofment upon condition that the feoffor pay 100. l. to the feoffee and his heirs or Executors and the feoffee is outlawed and the feoffor pay the money to his Executors as he may well the Executors and not the King shall have that also if the Testator is outlawed and he devise his land to his Executors to be sold these moneys shall not be forfeit and they shall agree that the plea was not good notwithstanding the general demurrer for he who will barre another by an argumentative plea his plea ought to be infallible to all intents and purposes and so it is not here for the Executors and the Administrators may be charged by the having of goods though the Testator was outlawed and for that the plea of the Defendant is not good in substance and the general demurrer is good by Hobert and by him if we suffer this plea then the Defendant will keep the goods and not reverse the outlawrie nor yet satisfie the King also if he had not goods the Defendant may plead plene Administravit or nothing in his hands and give this outlawrie in evidence See 8. E. 4. 6. 3. H. 6. 32. 39. H. 6. 37. by the opinion of Prisot and also see the case in E. 4. 5. a case to this purpose and also note well that it was said concerning the case of Manners that a writ of error was brought of that afterwards and that the case remains till this day undetermined Buckley against Simonds Ent. 18. Jac. Rot. 2120. NOw at this day the case of Buckley and Simonds was argued by Iustice Hutton and by Winch and the case was briefly this Anne Buckley Administrator to Andrew Buckley her Husband was Plantiff in a quare Imp. against John Simonds John Prior and Robert Pierce Alias Price for disturbing her to present to the Church of D. and shewed that Andrew Buckley Grandfather of the Husband of the Plantiff was seised of the said advowson in gross and presented one I. S. and he died after whose death the advowson discended to Richard Buckley and that the Church became void and that one Richard Williams usurped upon the said Richard Buckley then being within age and that Richard Buckley also died and by his death the said advowson discended to Andrew Buckley as brother and as heir to Richard and that the Church became void and before the presentment by Andrew and within 6. moneths Andrew died and that the Administration of the goods of Andrew were committed to the Plantiff and that she presented within 6. moneths and the Defendants disturbed her and the Defendants pleaded in barre and confessed the seisin of the Grandfather as is alledged in the declaration and they said that the said Andrew Buckley 14. Eliz. by his Indenture made between the said Andrew Buckley on the one part and John Preston of the other part by which the said Andrew Buckley by the same Indenture covenanted with Preston in consideration of a marriage to be had between John Buckley and Elizabeth Preston daughter of John Preston he covenanted with him and his heirs that immediately after he death of him and of his wife the said advowson inter alia shall be to the said John Buckley
answered that if it is meerly Collateral then it shall not go to the successor of the Bishop but to his executors as if the lessee had covenanted or obliged himself to pay this Herriot to the successor he may not have benefit of this obligation but the executor of the Bishop who was lessor shall have that and so he said that the argument made by Hendon is against him for if it be meerly Collateral then this shall not go to the successor and though the lessee of the Mannor may not have it the Plantiff shall not have a Trover and Conversion as he said before but he held this good by way of reservation for modus conventio vincunt legem and as to that which hath been said that the Herriot is to be paid upon the death of a stranger and not upon the death of the lessee himself to this he answered that this is nothing for the payment shall be out of the beasts of the lessee and not out of the beasts of a stranger and so he concluded and prayed judgement for the Defendant Rives case SAlmon avowed for a rent charge and he shewed that Sir Robert Rives had a rent charge granted to him and he further shewed a discent of that to the son and heir of Sir Robert and shewed that the rent was behinde unpaid to him viz. to his son and heir and he avowed as Bailiff to the son and exception was taken to the avowry because it is not expresly alleadged in whose time the rent was due whether in the time of the father or in the time of the son for if it is behinde in the time of the father the son may not distrain for that but it was resolved that the avowry was very good for in asmuch that he had shewed that the rent was not paid to the son this implied the rent was due to the son and not to the father An Executor brought a Scire Facias upon a judgement given for the Testator in debt by him and the Defendant would have pleaded the death of the Testator between the verdict and the judgement per Curiam he was not suffered for he may not plead this in a Scire Facias but the Defendant is put to his writ of error In Trespass for beasts taken in London and the Defendant justified to taking as a distress upon a lease of land in Kent and the Plantiff replied that the Defendant sold the beasts in London and so not a good plea to bring the Trial out of Kent and to have that tried in London which note Batterseys case AN action upon the case was brought against one Hordecre upon an assumpsit and he declared that the Defendant had arrested one Battersey by vertue of a Commission of Rebellion out of the Cinque ports and that the Plantiff keeping a Common Inne the Defendant brought the said Battersey to his Inne and requested the Plantiff to keep him a day and a night and promised in consideration there upon that he would save him harmless and he shewed that he kept the prisoner accordingly and that the said Battersey brought an action of false imprisonment against him and recovered against him upon which the action accrewed and upon non assumpsit pleaded it was found for the Plantiff and now it was moved in arrest of judgement because he had not shewed that the said Battersey was lawfully arrested and imprisoned and then if a man will without cause arrest a man and promise in this case no action will lie for it is no consideration because that the imprisonment is unlawful but Hobert chief Iustice Hutton and Winch contrary for be the imprisonment lawful or not lawful he might not take notice of that as if I request another man to enter into another mans ground and in my name to drive out the beasts and impound them and promise to save him harmless this is a good assumpsit and yet the act is Tortious but by Hutton where the act appears in it self to be unlawful there it is otherwise as if I request you to beat another and promise to save you harmless this assumpsit is not good for the act appears in it self to be unlawful but otherwise it is as in our case when the act stands indifferent but Hobert said it may be there is a difference between a publick officer and a private man for if the Sheriff arrest a man unlawfully and promise as before this is a good assumpsit but perchance otherwise of a private man as here but in the principal case the Defendant had pleaded non assumpsit and this implies a Lawful imprisonment for otherwise the Defendant might have given the unlawful imprisonment in evidence and judgement was commanded to be entered for the Plantiff Claworthy against Mitchel CLaworthy against Mitchel in a replevin the Defendant avowed for a rent and shewed that his father was seised and let for years rendring rent and he died and that the reversion descended to him and for rent behinde he avowed in barre of which avowry the Plantiff said that the father devised the reversion to another and the other maintained his avowry and traversed the devise and it was found that the devise was only of two parties and not of the third part for in very truth the land was holden by Knights service and all this was found by special verdict and for whom the jury had found was the question and it was argued by Hendon that this verdict is found for the avowant and he vouched 32. H. 8. Brook issue 8. in a precipe quod reddat if the issue be whether A. and B. infeoffed the Tenant and it is found that A. infeoffed him but not that A. and B. infeoffed him the issue is found against the Tenant see 14. E. 4. and Dyer 260. in debt upon a lease for years of divers parcels of land and upon non demisit pleaded it is found quod demisit all except one parcel this is found for the Plantiff and â—rin 15. Iac. Rot. 2022. Allen against Soper in a replevin for a horse and avowed for damage fesant and the Defendant claimed Common for his beasts Levant and Couchant upon his land and some in this case were found Levant and Couchant and others not and it was found against the Plantiff and he said in this case when the Defendant had alleadged a devise of all the land and upon this issue is joyned and it is found that part is devised and not all this is found against the Plantiff because the issue is joyned upon a particular and a special point whether all was devised or no and yet he agreed that upon a general issue as in trespass in 20. acres of land and the Defendant is found guilty but only in one yet the Plantiff shall have judgement but not where the issue is joyned upon a particular point as here but admitting that the Plantiff shall have judgement yet the avowant shall have return
to be good for though that shall be void for the interest yet it shall be good for the residue and then the non payment is a breach of the condition for where an award is made for a thing against the law and for another which doth stand with the law this is good for one and void for the others so here Secondly this award is not for interest but rather for the damage for the forbearance of the money but admit that this were for direct usury yet that is not void my brother Bridgman had cited a case where an assumpsit for usury was void I know well what the judgement was for I was of Councel in the case and much was said in that against usury and Glanvil was cited Lib. 9. cap. 14. which said that an usurer did forfeit his goods but that is to be intended of such who live by the common oppression of the people and there was not any precedent found where a contract for usury was void Noy the 26. Ed. 3. 24. debt is brought for money given for usury and admitted and the Statute of the 13. Eliz. and 37. H. 8. which were made against usury shall be frivolous if such contract shall be meerly void for they made only such contracts to be void as were made for above 10. in the 100. and so I pray judgement for the Plantiff An action upon the case was brought for calling one thief and the other did justifie the words and said that he was possessed of a Heifer which was privately taken from him and that upon search he found that in the possession of the Plantiff with his ears cut off and marked with the Mark of the Plantiff and it was ruled that this was not a good justification for the matter is not sufficient but he ought to have expresly averred that the Heifer was stole from him and accordingly it was adjudged Hill 22. Jac. C. P. Hillary Term in the two and twentieth year of King James in the Common Pleas. THe residue of the case between Cooper and Edgar and now this Term Serjeant Crook argued the case for the Plantiff and after a recital of the case he said that the general question is whether the Lady Cesar had any estate by this fine or whether the old estate for life remains for if she had the one or the other then it shall be against the Plantiff and he said the points which I will insist upon are four First whether these words do make a precedent or a subsequent condition for if the uses do not arise till there be a failing of the payment then it is on my side but if the uses do arise before then indeed it is against me and I hold that no use will arise till there is a default in payment in which I will observe that the words are all in one period and one sentence and till the first of September the use wil remain in Robert Foyne for here the same is voluntarie and it is without any consideration and then what doth the Law say till the condition was performed the use was in him and his heirs the grand doubt is whether si here made a precedent or a subsequent condition and I hold that si is alwayes a note of a precedent condition if it may stand with the law and with the intentions of the parties but if it doth cross either of those then that is a subsequent condition and yet I agree if si is annexed to an estate which passeth by liverie then this is a subsequent condition and the same if it be annexed to a grant which is executed but if it is annexed to a grant which is executory then that is a note of a precedent condition and so is Bracton lib. 2. fol. 190. where there is an example and the placing that first or last is not material and in the case of an use which is executory as this is there till the if is performed nothing will pass Plowden 172. nay the case of 14. H. 8. by Brooks and by Brundwel if I covenant that another shall have my land when he marries my daughter no use will arise till he marrie her and the case of Colthirst proves my difference both the wayes for the lease was made to Henry and his wife for life the remainder to William si ipse inhabitaret c. and if he die in the life of Henry or his wife that then it shall remain to Peter there the first si is a precedent condition for if he do not die in the life of them then Peter shall take nothing by that and to this purpose there is a notable case 13. H. 6. 7. where a man made two his executors and if they did refuse to administer then he made two others within 3. moneths after his death and ruled that in the mean time they are not executors and yet si was placed in the subsequent place there and there was a case H. 33. Eliz. between Iennings and Cawman where a man made his will and devised his lands to his son for 3. years and afterwards appointed that if his wife whom he made Executrix did not suffer him to injoy that for 3. years that the son shall be executor and the question was whether the feme was executor in the mean time and there Anderson said that this was a precedent condition but the other Iustices were against him because it was a thing of continuance and there they agreed the case of Colthirst that the word si ipse inhabitaret are a subsequent condition because it is a thing of continuance which may be infringed and broken every year and there was a case in this Court 29. Eliz. Rot. 854. between Iohnson and Castle where a man devised his term to his youngest son if he lived to the age of 25. years and did pay to his eldest brother so much money and agreed no estate passeth till the age of 25. years and payment of the money and the reason was that a devise executory may depend upon a precedent condition and so here the use is executory and nothing passeth till there is a failing of the payment like to the case of the 15. H. 7. where a grant is made upon condition that if the Grantee perform such a thing he shall have such an Annuitie there nothing doth pass presently and so 21. Ed. 3. 29. where a man was bound in an obligation not to infeoff when he came to the house of Ancestor c. vide the case and here in our case because the condition is that if he do not pay that then she shall have it to her and her heirs therefore it is a precedent condition and if the use had been limited to him if he marrie his daughter such a day in the mean time no use will arise because the limitation is to him upon a thing not executed and this being all in one sentence no use will arise in the
TERM In the 19. of KING JAMES in COMMON BENCH Easter Term. 19. Jac. IT was said by Warberton Iustice that in the time when Anderson was chief Justice of this Court that it was adjudged that where a Coppiholder alleadged a custom within a Mannor to be that every Coppiholder may cut trees at his pleasure that this custome is against common Law and also his opinion was that where a custome was alleadged to be that if a Tenant in antient Demesne devise his land to another without other words expressing his intent that the devisee shall have the fee simple Hobert inclined to this opinion and by Hutton and Winch he shall have fee by the custome and accordingly it was adjudged Norton against Lakins Ent. Hill Jac. NOrton against Lakins Ent. Hill 18. Jac. in debt upon an obligation the condition was to stand to the arbitrement of J. S. and the Defendant pleaded that he made no arbitrement the Plantiff shewed the award and the breach And the case in effect was that the Plantiff and the Defendant put themselves upon the arbitrement of J. S. of all matters between them till the first of March 18. Iac. and he made an award that each shall release to the other matters and differences between them till the ninth day of March 18. Jac. and it was argued by Serjeant Henden that the award is void for by their release the obligation upon which this action is brought is discharged but it was ruled to be a good award for though it shall be void for that part of the award yet it shall be good for the rest but Winch doubted of the case Reynolds against Poole Ent. Hill 18. Jac. Rot. 641. REynolds against Pool Ent. Hill 18. Iac. Rot. 641. Reynolds libelled in the spiritual Court against Pool for the Tithes of a Park and Pool prayed to have a prohibition and he shewed that he and all those whose estate he had in the Park had held this as a Park till the 11. of Eliz. at which time it was disparked and that time beyond memory c. the occupiers had used to pay to the vicar of the parish a Buck in Summer and a doe in winter in lieu and satisfaction of all Tithes due to the Vicar And it was argued by Serjeant Henden that this is not a sufficient cause to grant a prohibition because that now the Park is destroyed and sowed and so the prescription fails for it was annexed to the Park secondly the question is for the Tithes of corn and those do appertain to the Parson and not to the Vicar and he cited a case between Hawk and Collins in this Court there the prescription was that he and all those whose estate he had had used to pay to the Vicar a certain thing in leâ—u and satisfaction of all Tithes due to the Parson and for this a prohibition was denyed Sherley he had preserved that he had used to pay this to the Vicar and this shall be intended for Tithes due to the Vicar and not to the Parson Serjeant Ashley to the contrary and that the prescription is good for this extends to the soyle and not to the Park Hobert said that Tithes of corn are sometime payable to the Vicar and not alwayes to the Parson for put the case that at the time of the derivation of the Vicarage out of the Parsonage the composition was that the Vicar shall have the Tithes of that Park in thâ—s case by reason of such general terms he shall have the Tithe of hay corn deer or any other thing which grows in that And the composition being made before time of memory no man can say but that it was made in such manner and the case of Okenden Cowper in this Court in which the Court was divided differed from this case for there the prescription was to pay a Buck arising and coming out of the Park and there was no deer left in the Park and Hutton agreed for there he destroyed his own prescription and he agreed with Bracies case put after for there was a contrariety in the prescription Warberton the case of Bracie in this Court was that the Parson libelled against him for the Tithe of corn where this was due to the Vicar and not to the Parson and denyed him for that reason for he may not plead the title of another man and the Parson and the Vicar ought to agree among themselves but in our case no Tithes are to be set out and for that reason he may plead this but it seems to me that the prescription shall go to the soyle and not to the Park when it is destroyed he shall pay Tithes in kind as a garden or an orchard so long as it is used as a garden or an orchard that the occupier of that shall pay a peny now if this be ploughed and converted to other use he shall pay Tithes in kinde and Hobert agreed to the case of the garden or orchard for the penny is paid for the herbs or fruite Winch was absent and Hutton said that the prescription shall go to the soyle and the Vicar by prescription may have the herbs of the glbe of the Parson Hobert the Park is only an appellation or name of land and this name or appellation may not pay Tithes but the land it self and put the case that a man had al-wayes paid 10. s. for the Tithes of a meadow and after he sowed that with corn here for the payment of this 10. s. he is discharged Warberton I deny the case of the meadow and so it was adjorned Bartlet against Bartlet Trin Jac. Rot. 1784. TR. 18. Iac. Rot. 1784. Richard Bartlet brought an action upon the case against Thomas Bartlet and he declared upon an accompt and shewed that the Defendant was found in arrerages in 20. l. which he promised to pay when he should be requested and now the Plantiff had not laid any day or place of request in his declaration and Ashley moved in arrest of Iudgement that the declaration is not good for the request is also parcel of the promise but Hobbert chief Iustice said that when a man brings an action upon the case for a thing which was originally a debt the Plantiff need not lay any time or place of the request but when the action is brought for a Collateral thing there he ought to lay a day and place of the request and so it was adjudged according in the same case King against Bowen Ent. Trin. Jac. Rot. 1755. KIng againk Bowen entered Tr. 18. Iac. Rot. 1755. William King brought an action upon the case against Iohn Bowen for these slanderous words spoken of him King is a false foresworn knave and took a false oath against me at a commission at Witham and the Defendant Iustified the words and it was found for the Plantiff and Henden said that it had been alleadged in arrest of Iudgement that the words are not actionable and he said
covenanted with Sir Edward Sackvil to levy a fine to him of that land before the fine acknowledged the eldest brother dyed and the question was whether the youngest shall be compelled to levy the fine and presidents were commanded to be searched concerning that matter Note that it was said that where a commission issued out of the Court of wards to 4 persons or to any 2 of them and one of them refuse to be a Commissioner and the other 3 sit as Commissioners and he who refused was sworn and examined by them as a witness and ruled that this is good for though he refused to be a Commissioner yet he is not excluded to be sworn as a witness In evidence to the Iury the case was that Tenant in taile bargained and sold his land to I. S. and his heires and I. S. sold to the heire of the Tenant in taile being of full age and Tenant in taile died and the heire in taile claimed to hold his estate and the doubt was whether he was remitted or no Hobert was of opinion that after the death of the Tenant in taile that the heire is remitted for if Tenant in taile bargain and sell his land the issue in taile may enter and where his entrie is lawful there if he happâ— the possession he shall be remitted Hutton and Warberton Iustices contrary For at the first by the bargain and sale the son had fee and then the estate of the son may not be changed by the death of the father he being of full age when he took this estate and this was in an Ejectione firme of land which concerns Sir Henry Compton and the Lord Morley and Mounteagle White against Williams VVHite brought an action of accompt against Williams as his Bayliff to his damages 100. l. the Defendant pleaded he never was his Bayliff and it was found against him and the Iudgement was given that he should render an accompt and at the day the Defendant made default Ideo consideratum est per Curiam quod Querens recuperet versus predict Defendent 42. l. 10. s. and upon that the Defendant brought a writ of error and assigned for error that the Court gave Iudgement of the value without inquiring of the value and it was holden by Gaudy and Fenner only present that the Iudgement ought to be given which the Plantiff had counted of Baron Altham contrarie for the Court may in discretion give a lesser summe Hill 43. Eliz. B. R. vide 14. E 3. Accompt 109. 20. E. 3. 17. Sir George Topping against King VVA st was assigned in the cutting of Elmes and other Trees to such a price and Iudgement was given for the Plantiff by nihil dicit and a writ of inquiry of dammages issued upon that and the Iury found to the dammages of 8. s. and upon this Davies the Kings Serjeant moved to have a new writ of inquiry and that the old writ shall not be returned for the dammages are too litle Winch said all is confessed by the nihil dicit Hobert The Iury here have found the value and presidents were commanded to be searched and Hobert said that if an information is for ingrossing of 1000 quarters of corn and Iudgement is given by nihil dicit and a writ of enquiry issues which findes him guilty of 100. yet this is good And not that at another day the case was moved again it was between Sir George Topping and King and it was said if a man recover in waste by nihil dicit and a writ of inquiry issues the Iury in this case may inquire of the dammages but not of the place wasted for this is confessed and so are the presidents according and Hobert said if the Defendant is bound by the nihil dicit as to the place wasted for what cause shall not he be bound as to the dammages and by all the Court if the jury finde dammages only to 8. s. the Plantiff shall not have Iudgement for it ought to be above 40. s. Hob. this is in the discretion of the Court in this case and it was also said in this case that upon the grant of all the trees and after the grantee cut them and new ones grow upon the slumps which in time will be trees that in this case the grantee shall have them also by Hobert Wetherly against Wells in an action for words VVEtherly against Wells in an action upon the case for these words thou hast stollen hay from Mr. Bells racks and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of Iudgement because he had not shewed what quantity was of that and perchance it may be of so little a value that it is not fellony and the rather because it is hay from the Racks but Hobert contrary that Iudgement shall be given against the Defendant for the Plantiff for it hath been adjudged lately in this Court that where a man was charged with petty Larceny to steal under the value of 12. d. that an action of the case will lie for the discredit is not in the value but the taking of that with a fellonious intent and yet it had been adjudged in this Court that where one said of another thou art a thief and hast stolen my trees that in this case an action will not lie but this is by reason of the subsequent words trees for it is said Arbor dum crescit lignum dum crescere nescit And Winch said that it had been adjudged actionable to say thou art a thief and hast stolen my corn and yet perchance not exceed 2. or 3. grains and Warberton said that it had been adjudged in the Kings Bench that where one said thou art a thief and stollest the corn out of my field that no action will lie The Earl of Northumberland and the Earl of Devon NOte that in the case of the Earle of Northumberland and the Earle of Devon execution issued out for dammages recovered against the Bayliff of the Earle of Northumberland by the name of I. S. of D. and there was I. S. the father and I. S. the son and the father being dead the son issued his writ of Idemptitate nominis and he prayed to have a supersedeas and Warberton demanded of Brownlow if he had any such president to award a supersedeas in such case who answered no and Warberton and Hutton being only present said that they will advise of that Sir George Sparke Prescription IN a Replevin for the taking of a horse in 5. acres of land in such a place and the Defendant avowed as Bayliff to Sir George Spark and shewed that Sir George Spark and all those whose estate he had in the land had used time beyond the memory of man to have herbage and pasturage in all the 5. acres when that was not sowen and upon this plea the Plantiff demurred Ashley argued for the Plantiff that the prescription is void and this is not
seisin of the homage and therefore perchance it will be hard to finde my antient president they adjourned and at another day Hutton and Winch being only present judgement was given for the avowant against Whitgift and Hutton said that he had spoke with the other Iustices and they agreed Vpon a motion made by Towse the case was this a man made a lease for one year and so from year to year during the Will of the lessor and lessee rendring rent and the lessee died and the rent was behinde and by Winch being only present if the rent is behinde in the time of the lessee and he dies an action of debt is maintainable against his Executor in the detinâ—t only and so I conceive if that was behinde after his death he may have an action in the debt and the detinet or in the detinet only to which Brownlow agreed Secondly Winch said that when a man made a lease for a year and so from year to year at the pleasure of the parties that this is a lease for 3. years and not for two Thirdly he doubted if the lessee hold over his term so that he is tenant at sufferance what remedy the lessor had for his rent Vpon the reading of a record the case was that a Scire facias issued against the land Tenant to have execution of a judgement given against Ferdinando Earl of Darby in the 15. Eliz. and the Defendant pleaded that a long time before the said Ferdinando any thing had in the land one Edward Earl of Darby was seised of the land and being so seised 3. Mar. infeoffed I. S. to the use of the Lord Strange and his wife in tail the remainder over to the said Ferdinando and made the said Ferdinando heire to the estate taâ—le and pretended that by this meanes the land should not be liable to this judgement because it was intailed to Ferdinando and of such estate he died seised the Plantiff traversed the feofment made by Edw. Earl of Darby and the jury found that the feofment was made by Edward Earl of Darby to the same persons as the Defendant had pleaded but this was to the use of the feoffor for life the remainder over to the Lord Strange and his wife the remainder as before and whether this shall be intended the same Feofment which the Defendant had pleaded was the question because the estate for life was omitted and upon the special verdict that was the question and Attoe said that if the jury had found this feofment made to other feoffees though the estate had agreed this should be found against the Defendant and Winch Iustice said that there was such estate found as had taken away the execution or extent and the estate for life is not material but it was adjourned till another day A man Covenanted to make such assurance as shall be devised by the counsel of the Plantiff so the same assurance be made within the county of Norff. or the Citty of Norwich and the Plantiff assigned the breach and shewed that in this case his Councel devised that a fine should be leavied of the same land which was not done and it was moved by Serjeant Attoe that in this case the breach was not well laid because he had not shewed where his councel devised that the fine should be leavied In the case of a prohibition in case of a libel in the Ecclesiastical Court for the tithes of Cattles the Plantiff alleadged that those Cattle of which Tithes were demanded are for his Dairy and for the plough and Winch being only present said that the parson shall not have Tithes of such Cattle but if he bred up Cattle to sell it is otherwise secondly the Plantiff in the prohibition alleadged that time beyond memory the parishoners had paid a half peny for the Tithe of a Calf and a penny for a Cow and that upon a day limitted they use to bring this to the Church and to pay this to the Vicar and now the Vicar had libelled in the spiritual Court against them to compel them to bring it home to his house and Winch said that this is no occasion of a prohibition for they agree in the modus but vary in the place of payment and this is not matter of substance and for that reason no prohibition will lie Vpon the reading of a record the case was that the father made a feofment to the use of himself for life the remainder to his son and his wife and to the heires of the body of the son and this was for a joynture for his wife and the father died and the son also died and whether this was a good joynture was the question for all this matter was pleaded in barre of dower brought by the wife and it was ruled to be no good joynture for the feme notwithstanding that the father died in the life of his son and Hutton said if a man made a feofment to the use of himself for life the remainder to his Executors for years the remainder to his wife for a joynture this will be no good joynture within the Statute of joyntures though the feme here had the immediate franktenement In an action of debt against an Administrator who pleads outlawry in the Testator and it was moved that this was no plea for he had taken the Administration upon him Winch a man who is outlawed may not make an executor for if he meet with his goods he shall answer for them to the King and for that reason it seems to be a good plea 3. H. 6. 32. and Brownlow chief Prothonotary said that he could shew a president 27. Eliz. where this is adjudged to be no plea and Iustice Winch said to him shew that president if any such be and upon Tuesday after he shewed that and then Winch agreed Auditor Curle for words AUditor Curle brought an action upon the case and in his declaration he set forth the Statute of 32. H. 8. for the erection of the Court of Wards and that the same Statute appointed the Auditor of the same Court and shewed that the Plantiff was an Auditor of the same Court and that the Defendant such a day and at such a place said of him you have taken money for ingrossing of feodaries innuendo accompts and tunc et ibidem you are a Cozner and live by Cozning and I will prove that to be Coznage and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Finch Serjeant of the King that the Plantiff shall not have judgement upon this verdict for the first words are not actionable for the taking of money for the ingrossing of feodaries are insensible and then the inuendo will not help nor aid that also the words in the second place are not actionable because he had not said that he was a Cozning officer and so he had not expresly applied that to his office and
that then his two sons shall pay them and if it happen that either of them die before his debts and legacies paid or before either of them do enter into his part that thou the other shall have all the land in fee and after the devisor died and in the life of the mother the eldest son released to the youngest all his right title Claim and demand to the land which was devised to him by his father and after the wife died and two points came in question in this case First whether this limitation is good Secondly whether the release is good and it was argued by Richardson Serjeant that this limitation of the Statute by way of devisee is good and he vouched Dyer 330. Clarks case and 4. Eliz. Goldley and Buckleys case a man devised to his son and his heirs provided that if his personal estate did not suffice to pay his debts and legacies that then his lands shall be to another and he vouched Brown and Pells case which was adjudged in Banco Regis the case was that a man had two sons William the eldest and Thomas the youngest and he devised his lands to Thomas his son and his heirs provided that if Thomas died without issue living that then William shall have the land and it was resolved that this was good to William by way of executory devise and in that case doubt was moved whether if Thomas suffer a recovery whether this shall take away the estate of William and it was holden by all the Court except Doderidg that it shall not but all agreed that this devise upon the future contingency is good and so he concluded that if the youngest son die in the life of the Mother and before the legacies are paid the land shall remain to the Plantiff according to the intent of the devisor but the other doubt is when the Plantiff did release all his right and claim to the other whether this release will extinguish this future possibility and he held that it will not and he said that he had seen the case of Lampet Coo. 10. and there the release of a possibility is penned as in our case and if any word discharge this possibility it is this word right but if the resolution of that book had not been against him he would have argued that this right was not sufficient to extinguish this future possibility but that there ought to be a more apt and proper word but he said he would not argue against books but he said that which he would insist upon was the distinguishing of possibilities for there are two manner of possibilities the one is Common and ordinary the other is more remote and forreigne And first there is a possibility which is Common and necessary and this depends upon an ordinary casualty as a lease for life the remainder to the right heirs of I. S. for it is apparant that the right heirs of I. S. may take by this and such a possibility may be released and a possibility which is remote and forreigne is as if a lease be made for life the remainder to another during the life of the lessee for life or a lease for life the remainder to the Corporation of B. those remainders are void but yet by possibility they may be good for in the first case the Tenant for life may enter into religion and in the latter case the King may make Corporations and yet because such possibilities are not usual the remainders are void see Coo. 2. Chamleys case where such a remote possibility may not be released if a man give land to one which is married and to another woman which is married and to the heirs of their two bodies ingendred this is a good estate tail for there is a common possibility that they may intermarry but if the gift be to a man and to two women who are married and to the heirs of their bodies ingendred they shall not have an estate tail executed for it is a remote and forreigne possibility and an imbrodery of estates which the law will not allow nor respect see the Rector of Chedingtons case that such a possibility as in our case may not be released for first here the mother ought to be dead before the Plantiff shall have land Secondly legacies ought to be paid Thirdly Thomas ought to be dead and till all these possibilities hap the Plantiff shall have nothing in the land and for that it is a remote possibility which is not gone by the release for as it is said when a possibility shall be gone by a release there ought to be a good foundation upon which the release may operate secondly the possibility which is released ought to be necessary and Common but in our case it is not necessary that the son shall enjoy it in the life of his mother and also the mother may in a short time pay the legacies and then neither of the sons shall have the land by which circumstances it is apparant that this is not a Common or an ordinary possibility but is a remote and forraigne expectancy which shall not be gone by this release and this differs from Lampets case for there was a possibility of a Chattel which as it may easily be created so it may easily be destroyed but in our case it is a franktenement which as that requires a greater ceremony in the creation and for that it will require a greater matter to destroy and to extinguish that and it is said in Woods case cited in Shelleys case Coo. 1. that if a man covenant with A. that if I. S. infeoffed him of the Mannor of D. that then he will stand seised to the use of him and his heirs of the Mannor of B. and the Covenantee died and the said I. S. infeoffed the Covenantor in such case the heir shall be inward and yet it is only a possibility which descends which possibility of an use may not be discharged or released and yet in that case there was a possibility which is more Common and ordinary then in our case for there was a possibility that I. S. should make the feofment and so say a good foundation upon which the release may operate and he put the case that I. shall let for so many years as I. S. shall name if I. S. name it is good and yet he held if I. S. release before the nomination that this release is meerly void because he had only a possibility and as to Digs case Coo. 1. there a power of Revocation may be released and good reason for the Covenantor who released had the bird in his own hand and for that it was no remote possibility but there it is said that if the power be limited to an estranger there the stranger may not release and he also agreed Albanies case for there the power to release was upon the death of a man only but in our case it is upon death and other
contingencies by which these remote possibilities shall not be released Hoes case Coo. 5. there a release of all actions and demands to the Bailee made this void and in the case of Brown and Pell which was remembred before it was the opinion of all the Court against Judge Doderidge that where the devise was to the son in fee and if he died without issue living that then his eldest brother shall have that if in this case the second son suffer a recovery yet this had not destroyed the possibility which the eldest brother had to have the land and if a common recovery which is matter of record and the common assurance of the realm will not take away this possibility a fortiori a release which is but matter of fact and so he concluded and prayed judgement for the Plantiff Bawtry to the contrary and he said that if this remainder shall be good then the inconvenience which the judges had alwayes endeavoured to take way shall be on foot again as in the case of Chamley and Corbets of springing uses for if it shall be lawful for a man to limit a fee upon a Collateral condition or limitation then there shall be a perpetuitie and for this if any litteral construction shall be made upon such conveyances this will introduce dangerous events to inheritances and for that he held that limitation to the Plantiff to be meerly void for when the land is devised in fee this devisee by this had an absolute estate in fee and it shall be strange to give this to another though this be by way of devise for though the will of every man shall be supplied by the intent of the devisor yet his intent ought to stand with the rules of the law and otherwise his intent shall revert and for that he cited 29. H. 8. a man made two executors provided that one of them shall not administer here the intent did plainly appear and yet because the intent is contrary to the power which the law gives to every executor therefore it is void and it is put for a bare rule in Corbets case that such a conveyance which a man may not make in his life time by act executed he may not make by his Will but a man may not make such a conveyance by act executed in his life time for as it is said in Colthirsts case if a man let for life the remainder for life upon condition that if the first lessee do such a thing that then the land shall remain over to a stranger this remainder is void for when the land is given before this second limitation is meerly void and also the case is put that if a man give lands in fee upon condition the remainder over this remainder is void for the other had an estate in fee before by which it is apparant that when an estate is one time lawfully vested in any certain person there no limitation may give that to a stranger by any act executed in his life at the common law and then it shall not be good by way of devise 28. H. 8. Dyer a term was devised for years the remainder over and it was adjudged by Baldwin and by Shelley that the remainder in that case is void for when the devisor had given his term he may not limit this remainder over though this be by way of devise and this may be good law notwithstanding Lampets case for there the lease was devised and not the land and for that reason may be a difference and he vouched the case which was remembred by Richardson 29. H. 8. 33. and then as to the second point he held that the release was good admitting the first point to be against him for if the eldest son had any right by this release then this word right in the release will destroy and extinguish that and this possibility is not remote and forraigne for the condition or limitation is annexed to the estate and is not a subsequent condition which creates an estate and this depends upon an ordinary casualty which is common to all men and the payment of debts and of legacies is incident and common to every executor and as for Albanies case Coo. 1. the case was that a man had a power to revoke uses upon the death of a stranger without issue and resolved that this power may be released and yet his power depended upon two contingencies death and death without issue and the case is also there put if A. infeoffe B. upon condition that if B. Survive C. and then if A. and his heirs pay to B. 10. l. that then he shall enter in this case there are many contingencies involved in one conveyance and yet it is there said that these contingencies may be released and in Lampets case Coo. 10. there are six reasons wherefore such a contingencie may be released and our case is within all the reasons which are there mentioned for the words in the release as have been remembred by my brother Richardson are all one with our case and the first reason is because this is a Chattel which as it may be easily created so it may be easily destroyed to this he gave answer that this remainder of a Term was an interest to him who released and so in our it is an interest of a remainder to the Plantiff and for that the release is good Secondly it is a maxime in Law that every land may be charged one wayes or another and we are within this reason also for if this estate be in the Plantiff then this may be released Thirdly the foundation of every act ought to be regarded for Grants case there vouched destroyes the possibility with a fine by reason of the original act the fourth reason there remembred is because that if the devisee had been dead his Executor shall have the interest the same reason in our case if the Plantiff had been dead before the remainder or the contingencie hap yet his heir shall have that See Shelleys case the fifth reason is the legacie was in present though this was to take effect in futuro and so in our case the Will is in present though the state is to take effect in futuro and sixthly it shall be against reason to establish such a perpetuity of a Chattel and so in our case it shall be against reason to establish a perpetuity of a franktenement and the release is very well penued for it is of all his title right and claim to the reversion and remainder which the father devised to the Plantiff and so the release is not general but this is a particular and special release of that which was devised to him by his father and Hoes case Coo. 5. is not like to our case for first there the duty was altogether incertain and secondly the condition there did precede the duty but in our case the condition is annexed to the estate and so he concluded and
covenantor shall have an estate for life and so the law makes in that case fractions of estates as the case of the Lord Seymor Dyer 96. seems to accord with this and besides those two books he said he could not finde any book which will warrant that and for that reason he held those two books to be no law for if I Covenant that my son shall have my land after my death this will not raise an estate to me by implication for life and an estate to my son and so by such means to change my estate in fee for an estate for life without more words for the word covenant in his proper and native signification is only obligatorie and yet it had been alwayes conceived sufficient to raise an use to him who is not partie to that as if I covenant with a stranger that I will stand seised of my land to the use of my son this will raise an use to my son and yet neither my son nor the covenantee may have an action of covenant but an use will very well arise to my son as if a man bargain and sell his land in consideration of 100. l. paid by I. S. though in this case the consideration ariseth from a stronger yet that will pass the use to the bargainee and in case of covenant it is not this word covenant only which creats the use but it is rather the agreement of the parties which is testified by the covenant for if sufficient agreement appears there will not need this word covenant as if I will agree and declare to stand seised to the use of my son by which it appears that the word covenant is onely declarative of the intentions of the parties and then in the principal case the covenant is not that the son shall have the land but that the land shall come remain and be to him and those words are incertain as 21. H. 7. redert come or discent and for that reason it is all one with the law of the same case and then void to raise any use for the incertainly and then when Andrew Buckley covenants that his son shall have his lands and no words to inforce his intention and for that reason the intention shall be lyable to an action of covenant and not to change his estate which he had in fee for an estate for life by this covenant but if he had expresly covenanted that in consideration of marriage of his son that he would hold his land for life and after this should be to his son this will change the estate which was in fee for an estate for life but in our case the covenant being general and left to the indifferent construction of the law the word covenant shall be taken in his proper and native signification and this is obligatorie and so he concluded that this covenant being at the first to grant a rent and was executory and the last part of that is executory for assurance and the limitation of the estate to the son being intangled between these two Covenants this shall be of the same nature and by consequence the covenant is obligatorie only and will raise no use to the son and so he concluded that judgement shall be given for the Plantiff and it was commanded to be entered accordingly Sparrow against Sowgate IN debt by Sparrow against Sowgate who declared that the Defendant became Bail for one Richard Sowgate in Banco Regis against whom the Plantiff had brought a Bill of debt of 77. l. and now the Defendant bound himself in a Recognizance of 77. l. upon which the action is now brought that in case judgement should be given against the said Richard Sowgate that he shall satisfie the said judgement or render his bodie to prison for in this case no part was impossible for after the judgement the principal may render himself in B. R. to the Marshal for the redemption of his suretie and that is the Common course there as he said but he agreed the case to be otherwise if a scire facias issue out of the Kings Bench against the Bail for there the death of the principal is a good plea for a scire facias doth not lie there till default is assigned in the principal in his not comming upon the capias ad satisfaciendum which may not be when he is dead Note that but yet before any capias it is clear he may have an action of debt Sir Robert Hitcham Serjeant of the King to the contrary and he alledged this to be the constant course in the Kings Bench that the Bail is never chargable till there is default assigned in the principal upon the recorn of the Capias ad satisfaciendum which may not be here for the principal is dead and he agreed the case of the other side that when a man is to do two things though the one is become impossible yet he ought to perform the other but when it is in the election of one to make either the one or the other then it is otherwise see Dyer 262. and so he concluded for the Defendant Hobert chief Iustice said that it is inconvenient that the Plantiff shall be forced to sue his Capias ad satisfaciendum against the partie before he have execution against the Bail for perchance he will sue a fieri facias or an elegit against him and that the Corps of the partie will not satisfie him and Browlow Prothonotary said that it had been adjudged in this Court that such plea is not good Winch the course of the Kings Bench is that default shall be assigned upon the retorn of the principal before the Bail shall be charged and though the Plantiff refuse to take his bodie after he had made his election to take his fieri facias or elegit he shall never more resort to the Bail which was granted by Hobert and Hutton as to that last point and it was holden by all the Court that if the principal render his bodie though the Plantiff refuse to take that yet that is a discharge of the Bail and also it was agreed by Hutton Hobert and by Winch that if the course of the Kings Bench be such that the Bail shall not be forfeit till there is a default assigned in the principal the same course also shall be followed here and per Curiam if the course of the Kings Bench be such that such Capias is necessary to be awarded that then a convenient time shall be allowed for the principal to render his bodie gratis and if the principal do die before such time the Bail is discharged but it was said by Winch if he die before convenient time and the Capias is awarded that such death shall not discharge the Bail note that Iones Iustice said that he thought in this case that it is necessary that the principal render himself gratis for when he is let to Bail the law supposeth him to be alwayes in custodie
of the 4. H. 7. cap. 24. the demandant replied that 15. Iac. she brought a writ of Dower against the now Tenants and against two others and that the writ abated by the death of the two others and that she brought a writ by Iourneys accompts the Tenant replied that the others were not Tenants but one Sir Iohn Web and it was moved that this rejoynder was evil for they confessed that they themselves are Tenants by which the writ is good against them at the least Hobert if she brought a writ of Dower against one who is not Tenant that is not any claim within the Statute but if she brought a Dower against 4. who are Tenants and two die and she bring a writ against the others by Iourneys accompts this is a good claim within the Statute though the second writ was after the time limitted but quere here if the two who died were not Tenants Trin. 21. Iac. C. P. Harvey against the Hundred of Chelsam HArvey brought an action upon the Statute of Winchester of Hue and cry against the Hundred of Chelsam and it is found for the Plantiff and a writ of error was brought and all the record was certified and now the Plantiff prayed two things may be amended the first is the title of the action for upon the roll it is an action upon the case it should be an action upon the Statute but it was said by Hobert that it shall not be amended for the Statue of the 18th of Eliz. did not give amendments upon indictments or upon popular actions or actions upon penal Statutes and cited a judgement in Doctor Husses case Coo. 9. 71. which was reversed in Banco Regis upon default in pleading being upon a penal Statute and so in Mich. Term last Judictari for Indictari and adjudged that it shall not be amended and the second point was upon the venire facias where was one Gregory retorned as appears by the names of the Iury but the Clark of the Assise returned one George and it was entered upon the roll and certified in the record to the Kings Bench and per totam Curiam there needs no amendment for that name of George where it should be Gregory being in the tales de circumstantibus and not in the principal panel and it was also by consent of the parties and as to the first point all the Court agreed with Hobert and for the second point Hobert said that if that variance had been material it should not be amended for we will not make a new certificate for the Court of the Kings Bench may choose to credit the first or the second certificate and so we submit our judgements to the censure and pleasure of another Court which we will not do and in the great case of Fulger 18. Iac. where we made such a new certificate though it was adjudged according to our opinion yet they would not credit our last certificate and therefore we will not make a certificate again which note well Hasset against Hanson HAsset brought an ejectione firme against Hanson and upon a general issue and a special verdict the case was this that one Woodhouse was lessee for years of the King of a Mannor and I. S. was a Copiholder of a Tenement of inheritance and the Coppiholder bargained and sold his Coppihold land in such a Town to the lessee of the Mannor and this was by indenture and the indenture was to this effect that he bargained and sold all his lands and Tenements as well Coppiholds as other land bought of Iohn Culpepper in such a Town and it was found that the lessee of the Mannor entered in the Coppihold and occupied and after that the said I. S. died after whose death W. S. his heir was admitted as heir of I. S. upon the presentment of the homage that I. S. died seised and that the said W. is his heir and that at the same Court W. S. Surrendered to the use of the Plantiff and he was admitted and it was argued by Richardson for the Plantiff and by Attoe for the Defendant And these insuing points were agreed by the Iustices S. by Hobert Winch Hutton and Iones and first it was said by Hobert that though a Coppiholder may not convey his Coppihold to a stranger without Surrender and admittance yet he may grant his estate to the Lord of the Mannor out of the Court by bargain and sale for the custome is not between the Lord and his Tenants but between themselves only Secondly Winch said that the admittance of the Lord viz. the lessee of the Mannor amounts to a grant to him who had a title but it is otherwise if it is to him who was in by wrong as by disseissin Coo 4. 22. which was granted by all the Court. Thirdly Iones Iustice said that the bargain is void for it is of all lands and Tenements bought of Iohn Culpepper and it was not found by verdict nor yet averred by the party that the land was bought of Culpepper which Hobert and Hutton granted and Hutton cited 2. E. 4. 29. but Winch to the contrary as to that point but they all agreed that the Plantiff shall have judgement and accordingly so it was done Mich. 21. Jac. C. P. M. 21. Iac. in C. P. Pleadal against Gosmore PLeadal an Attorney of the Common pleas brought an action of trespas against Gosmore and he declared of the taking of a Mare Colt in May and of the retainer till the first of Iuly and that the Defendant held him in Compedibus Anglice in fetters diversis vicibus temporibus by which she Colt was much the worse and the Defendant pleaded that the Countess of Hartford was Tenant for life of the Mannor of Sherstone within which the taking of the Colt is supposed to be and that the Lords of the Mannor time before memory c. had used to have estrayes and used to seise them by their Bailiffs and to proclaim them according to the Law of the land and that the said Mare Colt came within the Mannor such a day and the Defendant as Bailiff to the said Countess seised that as an astray and made proclamation according to the Law and when the Mare Colt was so fierce and wild that he could not came that nor keep that out of the lands of his neighbours he Fettered her as to him bene licuit and he detained her till the first of Iuly at which day the Plantiff came to him and told him that this was his Mare Colt upon which the Defendant delivered her which is the same Trespas c. and upon that the Plantiff demurred and Attoe argued that the plea was not good for matter of Law for a man may not Fetter an estray Colt as appears in the like case 27. Assises and the reason is because satisfaction shall be given for his damages which he made to the Defendant and he cited a case adjudged in that point 8. Iac. Trin. between
years then this is void by resignation and so is the case of Packhurst that when he resignes during the years of the Commendam the Patron shall have that and not the King and so also my opinion is clear that if he had died within the 6. years limitted by the Commendam that the King shall not have that for then it is void by death and not by the assumption of the Bishoprick which book proves directly that a Commendam may be aswel for years as for life but yet I do not hold that upon those temporary Commendams if the Bishop continued Parson during the years and made no Act to impeach that then is a void cause S. the assumption of the Bishoprick and then when that is determined the supension is determined and it is void by the original cause S. by the assumption of the Bishoprick and this Commendam doth not turn the second or first Patron to any prejudice for the incumbent is still in by the presentation of the Patron and the determination of the Commendam is not any cause of the avoidance of the benefice but this is quasi non causa which is causa stolida as the Logicians do term it but in this case the assumption is the cause of the Cession and it is like to the case of 25. Ed. 3. 47. where the King brought a quare Impedit against the Arch-Bishop of York for a Prebendary vide the case and ruled in that case that the confirmation of the King had not taken away his title to present and the reason was because the confirmation had not filled the Church but continued that full which was full before and here this temporarie Commendam may not restrain the King to present afterwards for this is not a presentation and therefore may not take away the title of the King and here the Plantiff hath not well expressed it for he hath not shewed in this Court that the presentation of the King was lawful neither that Chardon held that by vertue of the Commendam for all the 6. years but only that the Church became void by the Laws of England and that is not sufficient and then if all before were for the Plantiff yet the question is whether he hath lost his turn and I think that he hath omnis argumentatio est à notoribus and the first is better known then the second and the second may not be the first and there when the devise gave him the first it is idle to say that he shall have the second for that departs from the meaning of the words and in every grant the law implies quantum in se est and no man may say that the devisor did intend to warrant that from antient Titles and so the Lord Hobert concluded his argument and said his opinion was that the Plantiff shall be barred and judgement was commanded to be entred accordingly Mich. 22. Jac. C.P. Michaelmas Term in the two and twentieth year of King James in the Common Pleas. DAvenport moved for the amendment of a Record where a recovery was suffered of lands in Sutton in the Countie of York and the indenture of bargain and sale was by the right name and the indenture of uses by the right name but the writ of entrie was of the Mannor of Sulton and upon the examination of the parties to be recovery that the recovery was to no other uses then is expressed and mentioned in the said indenture this was to be amended Sheis against Sir Francis Glover SHeis brought an action upon the case against Sir Francis Glover and shewed for the ground of his action that where one Harcourt was bound to the Plantiff in a Recognizance c. upon which the Plantiff took forth an elegit and the Defendant being the Sheriff of the Countie took an inquisition upon that upon which it was extended but he refused to deliver this to the Plantiff but yet he returned that he had delivered that and upon that he brought his Action and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Serjeant Hendon and the reason he shewed was because he laid his action in an improper Countie for though the return was in Middlesex where the Action was brought yet because the land lies in Oxfordshire where the seisin ought to be delivered the place is Local and for that the Action ought to be brought there and now Serjeant Breamston argued that the Action was well brought in Middlesex for this being but a personal thing he may bring that in either of the Counties as 14. Ed. 4. 13. Ed. 4. 19. expresly in the point and to the second objection that had been made that an Averment may not be against the return of the Sheriff to that Breamston answered that in an other Action an Averment may be against the return of the Sheriff though not in the same Action as 5. Ed. 4. but it was agreed to have a new trial by the preservation of the Iustices for otherwise it seemed the opinion of the Court was that the Plantiff shall have judgement upon the reasons urged by Serjeant Breamston Mary Baker against Robert Baker an Infant in Dower MAry Baker brought a writ of Dower against Robert Baker an Infant who did appear by his Gardian and he pleaded that his father who was husband of the demandant was seised of a Messuage and of land in Socage and devised that to the demandant for her joynture in full satisfaction of all Dower and he shewed that after the death of his father the demandant did enter into the said Messuage and land and was seised of that by vertue of the devise and to that the demandant did replie by protestation that he did not devise and for plea confessed the seisin of the husband and her own entrie but she further shewed that the Infant who was then Tenant was but of the age of 14. years and that she entred as Gardian in Socage to the Infant and disagreed to accept of that by vertue of the devise and traversed the entire and the agreement and it was said by the Court that his bar is good though it had been more pregnant to have alledged that she entred virtute legationis praedictae and so was seised and after it was said that the Replication was very good without the traverse for this was not expresly set down but that was but meerly the consequence of the plea which in veritie was not traversable Hickman against Sir William Fish HIckman had judgement for 600. l. and 10. l. damages against Sir William Fish and he acknowledged satisfaction for 410. l. of the said debt and damages and after there was an agreement between them that if Sir William did not pay the residue by such a day that then it should be lawful for Hickman to take out execution against the said Fish without suing of any scire facias though it was after
if one be named in the venire facias Gregory is returned George there needs not amendment if it be in a Tales otherwise in a principal pannel 66 Action for words he is as arrant a Thief as any is in England the Plantiff needs not aver that there are Thieves in England for the difference is when the words relate to a particular place and when to an intire Realm and so when it is tied to one kinde of fellonie 70 89 Action upon the case where it lieth for a malitious prosecution at the Sessions 73 An action by the Obligee for the Obligor saying he had forged the bond but if he had said to another that he was a forger and had forged false writings no action lies 76 Action upon the case upon a contract in London to Table with the Plantiff at A. in N. and he then and there assumed to pay 4. s. by the week where the action must be brought 78 An action upon a promise against a Parson in consideration that the Plantiff would better his Tithes by Planting hops that he would allow him 40. s. an acre for his charge if that be a good consideration 80 Action upon the case where it lieth against an Attorney for convinous pleading 90 Action by an Attorney for saying he had forged writings and deserved to lose his ears lieth not 90 91 An action against a Sheriff whethâ—r it lies in the Countie where the return of the extent was made or where the land lies 100 Averment against the Sheriffs return where good and where not 100 Amendment where the venire facias habeas Corpus and the pannel agree but the Jury Rolâ— differs 101 Action of the case upon a promise 101 Action for saying the Plantiff stole a ring and had been hanged but for me lieth 102 Action upon a promise where the time and place of the request ought to be expressed 102 103 112 113 Aâ—bitrators amongst other things award interest mony whether good for all or part 114 120 Action by Serjeant Hitcham for saying I doubt not but to prove Sir Robert Hitcham hath spoken Treason 123 124 B A Bail where he is not liable to the judgement until default be in the principal or if the principal die 61 62 C A Commission to 4. or 2. of them and one refuseth the other sit the 4th may be a witness 45 Condition to save harmless he plead in the affirmative he must show how 9 A Coppiholder releaseth to his Companion it is good without admittance 3 A Coppiholder where he may inclose or dig for Marle and where not 8 A Covenant to injoy without the let of the Grantors c. or by their procurement 4 A Custome for a Coppiholder to cut trees at his pleasure is void 1 If Tenant in antient Demesne devise his lands the Devisee shall have fee 1 Covenant See fine Costs where they shall be given against an Administrator 11 A Condition to surrender coppihold he pleads he did it not good because he shewed not when the Court was holden 11 A Commission to seise for recusancie they seise an advowson the Kâ—ng grants to I. S. who presents and is disturbed by the Universitie of Oxford to whom the presentation belongs 11 12 13 Costs upon a Nonsuit at a nisi prius whether assessible by the Court or by the Judge of Assize 16 Common claimed to 600 acres and certain Messuages and lands and that he was disturbed by digging common Borrowes and doth not say he was seised at the timâ— much good matter 16 17 Custome of Merchants in Bills of Exchange varietie of good matter 24 Condition to free the nâ—xt avoidance from incumbrance the Grantors heir presents if that be a breach 25 Custome to have a widdowes estate and the husband is attainted if it holds 27 Condition that I. S. shall levie a fine to the Obligee who sued not a writ of Covenant the Plantiff replies that before c. I. S. had made a feofment of c. whether the Obligee must sue a writ of Covenant 29 30 A Condition contingent where extract by release 30 31 54 55 56 Covenant to make assurance by advice so that it be within Norfolk or Citie of N. a fine is advised not good because not shewed where it should be levied 32 33 Covenant not to alien an advowson without assent the Plantiff saith he had aliened c. good although he had not said by deed 34 Covenant where it raiseth a present use and where not 35 36 37 59 60 Custome touching Marchants and nationall lawes 52 Church shall be repaired by him who hath land there though he be no inhabitant but not lyable for the ornaments thereof 53 Coppiholder what act by him will make forfeiture 62 Covenant by a draper against his apprentice for defrauding him the Defendant pleads the Statute 5. Eliz. and that thereby there ought to be a certificate that his father had 40 s. per annum freehold which was not done here 63 64 If a Coppiholder sels his land to a Lessee of the Mannor it is good 67 Condition in a Will where nothing vesteth till it be performed 69 Costs not to be paid where the Plantiff mistakes his action 69 Covenant brought by an Executor the Defendant pleads giving of an horse in full satisfaction which the Testator accepted 76 A Court of equitie if it doth decree against a maxime in law as benefit of Survivorship a prohibition lieth 79 Covenant that he was seized of a good estate in fee and had good authoritie to sell and that no reversion was in the King c. 91 92 93 Condition where it shall be precedent and where subsequent 105 106 107 108 c. 115 116 c Costs not discharged although the offence be pardoned 125 Commendam See King D IN dept after imparlance alwayes ready is a good Plea 4 Distress gone as to the nomine Paenae if the rent be expired 7 A Declaration where it shall be mended in matter of substance 20 Damages where good in part especially after verdict 27 28 Debt against an Administrator who pleads outlawrie in the intestate no good Plea 33 58 A man soweth land and deviseth to I. S and dies before severance whether the devisee or Executor shall have the Corn 51 A Devise for years if an entrie by him must be pleaded 53 Declaration see new assignment Dower a Tenant pleads a fine levied by her husband and that the wife had not claimed within the Statute 4. H. 7. she replied she brought a writ which abated and this writ now brought was by Journeys accompts 66 Debt for rent must be brought by a privie in estate only where the land lies otherwise of a Privie in estate and contract 69 Debt upon a bond the Plantiff saith he had not paid the money and did not say nor any part thereof good for that must come of the other part to shew 72 Debt upon a bond to perform an award the Defendant
of Tithes and good because they are a spiritual bodie 65 In a Prohibition upon a suit for a Legacie the Executor shewed he had not assets to pay the debts and the spiritual Court would not allow that allegation yet no Prohibition 78 Prohibition to the Marches of wales because a Legatee sued there for 500. l. good before a decree but not after 78 Prohibition see Court of equitie c. 79 Prohibition to the Marches of Wales for requiring an accompt of an Administrator 103 Proces against two Obligors by several precipes and thereupon several Executions whether the writs are well awarded 112 A parco fracto where it lies against the Lord of the Soil and where not except the Cattle come out 80 81 Prohibition to the delegates a pardon not allowed of there 125 Q IN a Quare impedit adjudged that nothing ought to be questioned after induction the spiritual Court there 63 R TEnant in tail sells to I. S. in fee who sells to the heir of Tenant in tail being of full age the father dies if the son be demitted 5 A replevin c. the Defendant saith that all those c. had used to have pasturage in c. when it was not sowed the Prescription is good 7 In a return of Rescous there needeth no addition 10 Replevin for rent issuing out of six acres the avowant must prove that the grantor was seised of 6. acres or more 15 Replevin in the Plantiff claimeth propertie without that the propertie was in the Defendant the Traverse not good yet judgement for the Plantiff because after verdict 26 In Return of an extent by the Sheriff surplusage hurteth not 27 Replevin the Defendant avowed for homage and shewed not how it was due if good 31 Replication although evil where the Plantiff shall have judgement if the Defendants plea be vitious 37 A Riotous quarrel about an arrest between the Sheriffs Bailiffs and the Bailiffs of the Marches of Wales 72 Release an avowrie not good without pleading it by deed 72 A Rent-charge granted and a Covenant if it happen to be behinde then the land to be alwayes open to distress whether this be a distinct covenant or not 74 87 Replevin for rent the Defendants say that the land was parcel of a Chaunterie which came to the King by the Statute wherein the right of others was saved the Plantiff replies that the land is out of the fee of the Defendant no good plea but he might have Traversed the Tenure that at the making of the Statute the land was not holden of him 77 A Record amended where the bargain and sale and deed of uses were by the right name but the writ of entrie was of another name 99 100 Rent granted in fee by Tenant for life and him in remainder in tail levied a fine a good grant 102 Rent-charge whether it be extinct by a fine of the land to the Ter-tenant and a release unto him 109 110 111 121 122 S SCire facias the Defendant pleads a feofment the Plantiff traverses and the jury found a feofment to other uses whether this shall be intended the same feofment which was pleaded 32 Scire facias by an Executor upon a judgement for the Testator the Defendant cannot plead the Testators death between the verdict and judgement but he must bring a writ of error 48 Simonie a grant of a next avoidance for monie the Parson being readie to die is Simonie 63 A Sheriff by force of a Capias utlagatum to inquire what lands c. cannot put the partie out of possession 78 Statute-Merchant if good in regard no day of payment is limited largely and learnedly argued by the Court 82 83 c. Servant taken away See Trespas T TIthes See Prescription Trespass the Defendant saith that I. S. was seised in right of his wife and that she died seised and that he as heir c. the Plantiff replied that she died not seised he ought to have said that she died not sole seised 7 Trespass in Yorkshire Justification in Durham without that that guiltie in Yorkshire good because it is local 7 A Traverse to a presentation where good and where not 13 14 Tenure where it is Traversable and where the seisin 18 Tithes not due of Cattle for the diarie 33. Trespass for Beasts taken in London Justification upon a lease of land in Kent Replied that the Defendant sold them in London no good plea to bring the trial out of Kent 48 Trespass for taking ones servant lieth not upon a private retainer otherwise if it were at the Sessions 51 Tithe giuen by the Pope to the Vicar and the Copie of the Bull only was shewed in evidence not good 70 Tithes cannot be appurtenant to a Grange except the Grange be the Gleab 72 73 Traverse where good and where not 113 U VEnire facias omitting part of the venue if good 34 Variance between the writ and Declaration where good 35 A feofment to the use of A. for life and after to the use of his daughter till B. pay her 100. l. here the daughter hath no remedie for this 100. l. without a promise 71 A Ventre inspiciendo awarded and returned but the Court would not agree that she should be detained from her second husband but attended by divers women till her deliverie 71 Variance between the venire facias and the Sheriffs return no judgement in that case 73 W IN Waste judgement by nihil dicit and upon an inquirie the jury found 8. s. damages what judgement shall be given 5 Wager of Law upon a Bill of Exchange 24 Writs a difference wherein there is an error in the original and where in the judicial writ that is amendable 73 Waste although for a time it is punishable yet after the action may revive 79 86 Writ against husband and wife as an Inheritrix the husband dies if the writ abate 102 Errata PAge 1. line 2. 27. for do read Doa p. 2. l. 4. r. lieu p. 4. l. 2. 22. r. 300. pa. 8. l. 36. r. Hendon and so throughout p. 12. in the Title r. Duncombe against the Vniversitie of Oxford p. 12. l. 14. r. 38. H. 8. cap. 39. p. 14. in the Title r. Sir George Savile against Thornton p. 15. l. 21. r. communication p. 16. l. 12. r. 7. Jac. cap. 5. p. 17. l. 47. r. Maines and l. 17. r. sic and also p. 17. 18. in the Margent r. Trin. p. 21 l. 51. r. 39. Eliz. p. 23. l. 9. r. till p. 26 l. 28 for writ r. Action and for Action r. writ p. 27. l. 12. for he r. they p. 28. l. 34. r. may not p. 29. in the Margent r. Easter p. 29. l. 33. for S. r. N. p. 33. l. ultim r. Moore p. 36. l. 43. r. Titterels p. 45. l. 20. r. demandable p. 50. l. 35. r. Bar p. 51. l. 22. r. a penalty p. 53. l. 16. r. may not p. 54. l. 44. r. Estate p. 57. l. 19. r. in our case p. 58. l 50 r. 16. E. 4. p. 68. l. 5. r. estray p. 71. l. 26. r. 12. Note in p. 72. l. 7. Wolseys case ought to have been printed by it self p. 77. l. 4. r. avoided p. 88. l. 4. r. Finch p. 90. l. 15. r. continuance p. 100. l. 21. for preservation r. perswasion and l. 34. for entire r. entrie p. 109. in the Margent for Trin. r. Mich. p. 112. l. 25. r. thought p. 114. l. 18. for interested r. interest