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
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
of the obligation and so had disabled himself afterwards and the obligor is bound that a fine shall be leavied this is to be understood of a good and a lawfull fine and not a fine in name only and he put the case that I let for years and after Covenant to make a feofment to I. S. this lease for years is a breach of the Condition though at the time of the Covenant made the lease for years was made Iustice Winch thought the contrary for this disability is by the act of a stranger and for that the obligor may not take any certain notice of that and therefore if I am obliged to you that I. S. shall enfeoffe you of his Mannor and at the time I. S. had made a feoffement of two or three acres of the same Mannor yet if he enfeoffe you of that which he was seised at the time of the obligation this is a good performance of the Condition though that 2. or 3. acres were disjoyned from that before and so in this case the obligor being a stranger to the estate of I. S. if I. S. make such an estate as he had at the time of the obligation made this is sufficient upon which he concluded that the Plantiff shall not have judgement but afterward judgement was commanded to be entered for the Plantiff according to the opinion of Hobert and Hutton Hoels case HOels case upon a special verdict was to this effect a man was seised of 2. acres of land in fee and had 2. sones and he devised both the acres to his wife for life the remainder of one acre to his eldest son in fee the remainder of the other acre to his youngest son in fee upon this condition in manner and form following if either of my sonnes die before my depts and legacies are paid or before either of my sonnes enter into their part that then the longest liver shall have both parts to him and to his heires in fee and the devisor died and Hoel the Plantiff being the eldest sonne in the life of his mother released all his interest and his demand in this to his younger brother and the doubt was whether this condition was gone by this release and Attoe argued that it was gone for Littleton saith that every land may be charged one way or other see Anne Mayowes case Release Coo. 1. Albaines case power of revocation released see more of this afterwards Trin. 20. Jac. C. P. Whitgift aganist Sir Francis Barrington IN Replevin the Defendant avowed as Baliff to Sir Francis Barrington and that Whitgift the Plantiff held certaine land of Sir Francis Barrington by escuage et quendam reditum and that the said Sir Francis was seised by the hands of Whitgift his very Tenant and for homage he avowed and upon this the Plaintiff demurred first because he had avowed for homage and had not shewed how nor in what manner the homage is due whether in respect that the tenancy come to him by discent or by purchase and for that this general allegation is naught for by Hendon Serjeant all the presidents in such avowryes made mention of the title to the homage as 4. E. 4. in avowry for homage the tenure is shewed and a discent alleadged or a purchase of the land and in no book or in any president that he ever yet saw did he see such a general allegation in avowry for homage but he agreeth the book of the 44. E. 3. 42. if the avowry is upon tenant by the curtesie this general allegation is good but otherwise of a tenant in fee simple and for that he alledged the second E. 3. avowry in a replevin the Bishop avowed for homage due by the Plantiff and exception was taken because it was not shewed in whose time the death of the ancestor was whether in his own time or the time of his predecessor and ruled to be evill for his avowry being his title he ought to shew that in certaine and so in our case Hobert this case doth not prove our case for in our case prima facie it is certain to all intents and purposes and I cannot see how an avowry may be better made and Finch at the barre vouched a president in the book of entries title horse de son fee secondly where such a avowry as in our case is made and then Hendon moved that the avowrie is not good for he had shewed the tenure by homage and by escuage and rent de quo quidem redditu he was seised c. and this is also repugnant for when he said that he was seised of the rent by the hands of the Plaintiff this is a seisin of the homage as Bevils case is and then by his own shewing because the seisin of the rent is a seisin of the homage he shall not have the homage of the Plantiff Thirdly admitting this point against him and that the seisin of the rent is not seisin of the homage yet the pleading is not good for when he expresly alleadged seisin of the rent in this manner de quo quidem redditu he was seised this excluded the seisin of any other services but only of the rent which is expresly alleadged and therefore in our case he ought to have alleadged generally de quibus serviciis he was seised and to leave this to the construction of the Law and he vouched 13. H. 7. 31. Serjeant Harvy to the same intent for though perchance no good reason may be given wherefore the pleading shall be such and that the seisin of the homage ought to be expressed yet because all the presidents are so the course of pleading shall not be altered and all the presidents shew a seisin of the homage see the book of entries 597. and 598. Serjeant â—owse to the contrary the book of the 19. E. 2. Recovery 224. is that the alleadging of the seisin or escuage as in our case of tent is a sufficient avowry for homage and 29. H. 3. such an allegation of the seisin of rent was made in avowry for fealty and good Hutton if the book of the 19. E. 12. be as Towse had alleadged it is all one with our case Hobert seems the avoury is good notwithstanding this last exception for perchance he was not actually seised of the homage by the hands of the Tenant himself and then by his own shewing his avowry shall abate and he demanded of Brownlow if there were any such president of an avowry who answered no. Hobert if the continual pleading be as my brother Harvy had alleadged we will not alter the course of pleading but in my opinion in reason none may plead in better manner or form and Hutton being only present agreed and then Hobert commanded the presidents to be searched concerning that matter and Finch at the barre being of Councel with the avowant said that till the resolution in Bevils case it was a great question whether the seisin of the rent was the
after his death it shall remain to his son and his wife in fee and the book is that this Covenant will raise an use also if this Covenant and agreement will not amount to raise an use then it is not to any use or purpose at all and by consequence the consideration of the marriage is void also and an action of Covenant will very well lye without any such consideration of marriage and so he concluded and prayed judgement for the Defendant adjourned Mich. 20. Jac. C. P. Johnson against Norway IOhnson brought an action of Trespass against Norway of Trespass made in a piece of ground and the Defendant pleaded that 14. H. 7. Roger Le Strange and Anne his wife were seised of the Mannor of D. and one Giles Sherington Abbot of C. was seised of an acre of land in fee and held this of the said Roger Le-Strange as of the Mannor of D. aforesaid and that the 22. H. 7. the Abbot and all the Monks died by which the said land escheated to Roger c. and the Mannor discended to his son and heire after his death who conveyed the Mannor of which the acre is parcel after the escheat by mean conveyance to Hobert in fee and that Hobert 12. Eliz. infeoffed one Wright of the Mannor of which the said acre is parcel and so justified by a conveyance from Wright to the Defendant the Plantiff replied by protestation that the Abbot was not eligible and for plea he said that the aforesaid Hobert 10. Eliz. infeoffed I. S. of the said acre of land absque hoc that he infeoffed Wright of the sad Mannor of which the said acre is parcel and upon this the Defendant demurred generally And Serjeant Attoe argued for the Plantiff that the Plea of the Defendant is evil and then though the replication of the Plantiff is not good yet the Plantiff shall have judgement and he cited Turners case Hobert it is true Cook 8. if the replication be meerly void then it is as you had said but if the replication be the title of the Plantiff and that be insufficient there the Plantiff shall not have judgement though the plea in barre was evil Attoe agreed that if it appear by the Plantiffs own shewing that he had no cause of action and that he had no title he shall not have judgement but here he had made a good title by the lease of the said acre of land and though our traverse is evil and sounds in doubleness yet the Defendant had demurred generally and so he had lost the advantage of the doubleness or of the negative pregnant for if a maâ— plead double matter this is only matter of form and not of substance and therefore after verdict it is good as hath been adjudged but he proceeded in his argument and he said that the barre of the Defendant is not good for by his own shewing this acre of land is not parcel of the Mannor for by the dissolution of the Monastery by the death of all the Monks the land shall go to the founders and donors and not to escheat to the Lord of which that is holden as appears 2. H. 6. 7. and 5. H. 7. if an annuity or rent be granted to an Abbot in fee and the Abbot and all his Monks do die the annuity or the rent is extinct and shall not escheat see the Deane of Norwiches case Coo. 3. agreed that by the death of the Abbot and his Covent the corporation is dissolved and then the possession shall go to the founders and shall not escheat to the Lord of the Mannor of which the Land was holden and he said that this point is proved cleerly by the Statute of the 27. H. 8. and 31. H. 8. of Monasteries in which Statutes there is an express saving to all persons except to the donors and to their heires and no mention is made of the saving of the right of those of whom the land was holden and that proves cleerly that if the makers of the Statute had thought that the land had escheated to the Lords they would have excepted them in the saving of the act as they had excepted the Donors and Founders for if otherwise the lands and possessions shall escheat to the Lords of which the land was holden they are within the saving of the Statute and then it will follow that after the death of all the Monks as at this day that the Lords shall have the land by escheat which the Sages of the Law never dreamt of who made that Statute that any thing may accrew to the Lord and therefore they provided only for the title of the Donors and Founders which is an argument that they thought that upon the dissolution of the Monesteries that the lands shall go to the Founders and the same he thought concerning a corporation at this day as of Suttons Hospital c. and so he concluded that because in the barre of the Defendant he claimed to hold from the Lord to whom he supposed the land to escheat and did not claim c. by his own shewing the barre is not good and though our replication and traverse is not good yet the Plantiff shall have judgement But admitting that the barre is good yet the replication and traverse is good and then judgement shall be given for the Plantiff and the case is the Defendant pleaded a feofment of the Man 12. Eliz. to Wright after that he had shewed the escheat of an acre the Plantiff replied that the 10th Eliz. the Feofor infeoffed C. of the acre of land absque hoc that he was infeoffed of the Mannor of which the acre is parcel and Attoe argued that the traverse is good and he alleadged 38. H. 6. 49. the same traverse and here when the Defendant had pleaded that the acre escheated and had alleadged a Feofment of the Mannor and had not expresly alleadged a Feofment of the acre the Plantiff may traverse that which is not expresly alleadged because this destroyes the very title of the Defendant and he cited for that 34. H. 6. 15. a writ of priviledge in trespass as a Servant to an auditor of the exchequer the Plantiff replied that he was servant to him in husbandry absque hoc that he was his servant to waite and attend upon him in his office and it was holden a good traverse and yet that was not expresly alleadged by the Defendant Hobert chief Iustice said that the traverse is not good for by the Feofment which was made the 12th Eliz. he had confessed and avoyded the Feofment which was made 10th Eliz. and so there needed no traverse and therefore he said the great doubt of the case will be upon the barre of the Defendant whether by the death of the Abbot and the Monks the land escheat to the Lords of whom that was holden or whether that shall go to the Donors and to the Founders and he thought that the land shall escheat to which
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
reason the factor may sell the goods without ready money and this is good reason for perchance the goods are of that nature that they will not keep without perishing by which clearly it appears that if I deliver goods to another to Merchandise and to sell he may sell them without ready money but if my factor or Bailiff will sell them to one which he knows wâ—ll prove a Bankrupt without ready money this is not good but secondly he held the custome as it is here alledged not to be good for then the partie shall have no remedy for his money except the factor will go into Spain and sue the Bill and the laws of Merchants are special laws for their benefit and not for their prejudice and this custome as it is alledged is too large but if he had alledged that such Bill taken by the factor shall be as good and effectual to the Mr. as if it had been taken in his own name this had been good besides the custome is not good for it is alledged to be that when the factor had delivered the Bill to the owner of the goods this shall be a discharge to him who was the factor and here is no time set within which this may be delivered and so for ought is shewed it may be delivered 10. years after which may be good and to that which had been said that the laws of Merchants are national laws he denied that for every Kingdome had its proper and peculiar laws and though this is the law of Spain and national to them yet this ought to be reasonable or else it shall not binde and judgement was commanded to be entered for the Plantiff Hobert and Winch being only present It was ruled that he who had land in a parish who did not inhabit there shall be chargable to the reparation of the Church but not to the buying of ornaments of the Church for that shall be levied of the goods of the parishioners and not of their lands by Sir Henry Yelverton and said to be so formerly adjudged In trespas the Defendant pleads that one such was possessed of a term for years and bring so possessed by his last will and Testament devised that to the Defendant and died after whose death the Defendant entered and was possessed by vertue of the devisee upon which plea the Plantiff demurred generally and Hutton thought this plea prima facie to be good though the Defendant had not expresly alledged that the devisee died possessed but his plea implies that for he had said that he entered by vertue of the devisee and was possessed and this only matter of form and not matter of substance and no cause of general demurrer which Winch also granted that this was also matter of form and not matter of substance Gage against Johnson for his fees GAge brought an action against Iohnson as his servant and Solicitor to the Defendant in a suit in the Kings Bench taking for every Term 3. s. 4 d. for his fees and for this he brought his action of debt and Serjeant Hitcham moved in arrest of judgement and he urged the case of Samuel Leech an Attourney of this Court in an action upon the case brought by him upon a promise to pay so much for the solliciting of a cause of the Defendant and the opinion was that the action will not lie for it is in nature of maintenance for a Solicitor may not lay out money for his Clyent and if an action upon the case will not lie then much less an action of debt and Hobert said that a Councellor may take fees of his Clyent but he may not lay out or expend money for him and the same law of an Attourney for if he did disburse money for him he doubted much what remedy he should have and he further said a servant may follow business for his Mr. and may take money for his labour for if I retain my servant generally he is not bound to follow my suits at law except at his pleasure for that is an extraordinary service and for that if I will say to my servant that if he will follow my business at Westminster I will give him so much for his pains my servant in this case is not without his remedy but if his service is coupled with Soliciting to take money for his pains his opinion was that no action will lie to which the other justices also agreed and they arose Wright against Black before NOw the case of Wright and of Black was moved again and the case was that Wright had brought an action upon the case against Black and Black for that the Defendants intending to make away his good name and to cause him to lose his goods did maliciously and without cause at Norwich in the County of Norfolk prefer a Bill of indictment at the Sessions of peace containing that the Plantiff stole two bundles of fetches and also did cause and entice one I. S. to give in evidence that the indictment was good and true by reason of which he was bound to Answer that at the next Assiles and there he was accquitted and whether the action was maintainable was the question and Attoe argued that the action is maintainable though it is not shewed that the Bill of indictment was found and he vouched a case which was Hill 10. Iac. B. R. Rot. 921. between Whorewood and Cordery and his wife Defendants which case and judgement was after affirmed in the Exchequer Chamber upon a writ of error and the case was that the Plantiff declared that the Defendants intending to take away his good name did charge him to have ravished Dorothie Coxe and maliciously exhibited a Bill of indictment containing that the Plantiff did felloniously ravish the said Dorothie their daughter and did give this in evidence to the Grand jury who found Ignoramus and yet it was adjudged that an action lies and he cited a case the 19. Iac. in B. R. Deney against Ridgy where was only an indictment preferred concerning the stealing of a horse and no more and yet an action lies Hobert chief Iustice said that if seemed to him that it is actionable for this is as great a scandal to give this in evidence to the Grand jury as to publish this upon an Alebench and as the course of Iustice ought not to be stopped so neither ought the good name of man in things which concern his life be taken away without good cause and I have heard that judgement was given another Term for the Plantiff but quere better of that Hoes case HOes seised of land in fee he devised that to his wife for life the remainder of one parcel of that to Thomas his eldest son the remainder of the other parcel to his youngest son in fee and this devised was with proviso that the feme shall pay his legacies and also his will was that in case his wife died before the payment of his debts and legacies
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
Leonard Barley Plantiff and Foster Defendant it was agreed without scruple by Winch and Hutton Iustices only present in the Court that if a man infeoff another to the use of A. for life and after his death to the use of his daughter till B. pay her a 100. l. and then to other uses c. to the use of B. I. in this case the daughter had not any remedy for the 100. l. if B. will not pay that except he make a new promise and then upon that she shall have an action upon the case upon which if shee recover and have satisfaction the use will arise to B. but otherwise not though she have judgement to recover that and whether this same is discharged is triable by the record of the recovery John Theaker's case NOte that one Iohn Theaker was seised of certain lands and died in Ianuary last and his wife was married to one Duncombe within a week after and one Alphonsus Theaker entered into the land as Cozen and heir to Iohn Theaker deceased and the wife of Iohn Theaker who was dead gave out words that she was with child by her first husband and upon that Alphonsus Theaker had a writ de ventre inspiciendo directed to the Sheriff of London to inquire by 21. Knights and 12 women in the presence of the Knights whether she was with child or no and the Sheriff executed that and returned that they thought that she should be brought to bed within 20. weeks and upon that it was prayed that the Court would award according to Bracton that she may be taken into custody and that she may have divers women of fashion which may attend her daily till she is delivered that no deceit may be contrived against Alphonsus to deceive him but the Court would not agree to that though there was a president urged Hill 39. Eliz. Rot. 1200. Sir Percival Willoughby and the Lady Willoughby his brothers wife in this Court but the Court awarded that she should not be taken and detained from her husband but that a writ should issue to the Sheriff of Surrey whither the woman was now removed to return divers sufficient women which may resort to her daily till she is delivered which was done accordingly Fosters case FOster brought an action of debt of 300. l. against C. upon 2. obligations dated 20. December to pay him 150. l. c. and averred he had not paid that and did not say nor any part of that and Bing took exception to that in arrest of judgement because he had not averred that he had not paid any part of that and perchance he had paid part but not all but Hutton said that it is very good though this be upon several bonds and it any be paid it ought to come of the other part to shew that Woolsey was outlawed at the suit of Iones in an action of debt upon an obligation and the Capias ut legatum was taken out of the Court of the common pleas where he was outlawed in Trinity Term 21. Iac. and in December following Woolsey was warned to be at the Town of Shrewsbury to chuse Burgesses and before the day a binding process did issue out of the Marshes of Wales against Woolsey after Iones had delivered the Capias ut lagatum to the Sheriff to take Woolsey and the same morning that the election was Woolsey was taken upon the Capias ut lagatum but he was suffered to go and to give his voice in the election and then the Baileys of the Marches of Wales arrested him upon the process and because the Bailiffs of the Sheriff would not suffer the Bailiffs of the Marches to take him away from them there was gathered a great riotous companie on both sides but the Bailiffs of the Sheriff took him away and they and all them who took their parts were sued in the Marches for the withstanding their Bailiffs and upon this Harris moved for a Prohibition and the Court c. Winch and Iones said that if he is outlawed bona fide it shall be granted for the Bailiffs of the Sheriff had lawfully arrested him and it is lawful for them to keep him and for others to assist them and Winch said that if the persons which stood by had refused to help them this had been also sinable and it was said that the suffering him to go to the election was not any signe of a fraudulent arrest nay if the partie himself had consented to a fraudulent arrest upon a Capias ut lagatum this had not been punishable though they had known that there had been binding Process out against him because the arrest the detainer was lawful and agreed in the principal case that a Prohibition shall be granted and it was said that the other side are punishable because they did not aide the Sheriff for the officers of the other side were the cause of the Riot Sir Michael Wharton and Sir Edward Hide IT was agreed without scruple between Sir Michael Wharton and Sir Edward Hide that if a man in an avoury convey a good estate for years to two and one release to another that is not good without the shewing of a deed in that case Michael Bone and the Bishop of Norwich IT was agreed between Michael Bone and the Bishop of Norwich in trespas that by the lease of a Grange and all houses and buildings thereupon and belonging or let heretofore to one Edward Garrard that in this case if it may not be proved that the Tithes were not let to Garrard then they will not pass by this lease for it is not possible that Tithes shall pass as appurtenances to a grange because that they are of several natures except as Winch said that the Grange is the Gleab for if it is then the Rectory may pass by this name William Trist and Cawtrel at the suit of Heath WIlliam Trist and Cawtrel were bound in an obligation of 40. l. to one Heath who brought an action of debt upon that and recovered at the assizes and now it was moved in arrest of judgement that this was a mistrial for the venire facias was between Heath and Iohn Trist and the Sheriff returned that to be between Heath and William Trist and for this variance he shall not have judgement in the Case Hutton said in the case between Mankleton and Allen. MAnkleton and Allen that is a man had goods taken from him which taking he supposeth to be fellony but it is not and he complains to a Iustice of peace of that who commits the offender and bindes the other to prosecute and he accordingly preferred a Bill at the Sessions and the other is acquitted and the opinion of Hutton in this case was that this is not punishable by an action upon the case in the prosecuter for that shall never be maintained without apparant malice in the prosecutor Blunt and his wife against Hutchinson BLunt and his wife brought a quare Impedit
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
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
plea for the Plantiff to say that he was seised till the Defendant disseised him absque hoc that C. enfeoffed him and for that reason he ought to traverse the feofment made by B. for the other was but a mean conveyance see Dyer 107. in Trespass the Defendant conveyed to the donee by 5. or 6. discents by dying seised of the estate taile in every of them the Plantiff confessed the intaile and conveyed to him by feofment made by the heir of the donee which was a discontinuance and took traverse to the dying seised of the same feoffor and ruled to bee evil for he ought to traverse the most antient discent 43. H. 3. 7. Secondly it is evil because he had confessed the seisin of E. 6. and the grant by the same King to Wyat and so had confessed and avoyded the seisin of the same King and then the Law will not suppose that E. 6. purchased that again and for that the traverse of his dying seised is evil when he had sufficiently confessed and avoided that before as Dyer 336. in Vernons case a discent was pleaded to the heire from his ancestor the other party said that the ancestor devised that to him absque hoc that this discended to him as son and heire and ruled to be evil for a traverse needs not when he had confessed and avoyded that before Vide 14. H. 8. Sir William Meerings case 26. H. 8. 4. by Fithzherbert but Brook in the abridgement of the same case said that if the traverse is evil then he had waved the plea before and all was evil 7. E. 4. by Littleton for hereby the representation of Queen Eliz. she had gained the inheritance to the Crown and then the traverse being evil he had waved the former plea which was good without traverse and this seisin in the Crown is not answered but by way of argument as here 14. H 6. 17. he ought to traverse absque hoc that he died in his homage 20. E. 4. 5. 35. H. 6. 32. Serjeant Iones to the contrary and as to that which hath been said that the presentment is alleaged to be in jure coronae and the confessing the presentment is a plea by way of argument to which he answered that the record is not so but the seisin of the advowson is alleadged by discent to Elizabeth Queen by force of which she was seised in jure coronae and Iones argued that the traverse is good for every plea in barre ought either to be traversed and denied or confessed and avoided and here that ought to be traversed Dyer 208. 312. in avowry for a rent charge and seisin was alleadged in the grantor of the land in fee and the Plantiff said he was seised in taile he ought to traverse that he was seised in fee and a good traverse Hill 2. Iac. in C. B. Rot. 1921. Edwards against D. it was pleaded that such a man was seised in fee of a rent charge and the other confessed that he was seised in fee and that a long time before he enfeoffed one I. S. there he ought to traverse that he was seised at the time of the grant see the new book of Entryes Tavener and Gooches case in a Qu. Impedit And a note by the Lord Cooke also he said that after the grant there may be an usurpation and so the dying seised in the case of an advowson in gross ought to be traversed â—e 21. E. 4. 1. 20. E. 4. 14. and as to that which hath been said against the protestations he answered it ought to be traversed and for that the rest ought to be taken by protestation and in some cases the conveyance is traversable see Cromwels and Andrews case And so he concluded and prayed judgement for the Plantiff Note that he said that it was adjudged in that Court 2. Iac. in the case of the Bishop of Winchester that two usurpations gaine the advowson from the King And the reason was because the King by an usurpation may gaine an advowson in him out of a Common person and if the King Vsurpe and the right patron present he is remitted Hobert by such usurpation the possession is gained from the King but not the right and note that upon the argument in the principal case by Bawtry and Iones it was ruled by Hobert Warberton and Hutton that if the Defendant do not shew better cause by such a day judgement shall be given against him and Hutton said that he had studied the case and found no doubt but that the traverse is good Winch was absent in the Chancery M. 19. Iac. C. P. IT was moved for a prohibition by Harris Serjeant to the Court of Audience because that the Plantiff was sued there for saying to one thou art a Common Quean and a base Quean and Harris said that a prohibition had been granted in this Court for saying to one that she was a piperly Queen and it was the case of Man against Hucksler and Finch said though the words are not actionable in our Law they are punishable in the spiritual Court for the word Quean in their Law implies as much as whore but Hobert said that this word Quean is not a word of any certain sense and is to all intents and purposes and individuum Vagum and so in certain see more after Note that it was said by Justice Warberton that it was adjudged in the case of one Ablaine of Lincolns Inne that if a man made a lease for years rendering rent and the lessee or a stranger promise upon good consideration to pay the rent that in this case no action upon the case will lye for it is a rent and is a real thing and Hutton Justice being only present agreed this was upon the motion of Finch Serjeant Mic. 43. Eliz. in the Kings Bench in an action upon the case he declared how he let certain land to the Defendant for years in consideration of which the Defendant promised to pay him for the farm aforesaid 20. l. and Hitcham moved that the action will not lye because it appears to be for a rent for which an action of debt lyes but by Gaudy Fenner and Clench it is not a rent but a summe in gross and for that reason because he promised to pay that in the consideration of a lease cleerly an action upon the case lyes but Sir John Walter replyed that a writ of error was brought of this case of Simcocks in the exchequer chamber and the matter in law was assigned for error and it was ruled that no action upon the case will lye for Walmsley said this was a rent for of necessity there ought to be supposed a commutation between the lessor and lessee and that the lessor demanded of the lessee how much he would give for that and then he answered 20. l. this made an entire contract and for that reason an action of debt lyes and not an action upon the case and Savil and
it is that if the Lord had seisin of more then the very services in this case it may not be avoyded in avowry and no fall tenure shall be avoyded c. but when he joyns another falsity and that is in the quantity of land now the false quantity of the rent had made the tenure traversable and the judgement was commanded to be entred accordingly Trin. 19. Jac. Thomas Bull Executor c. against Fankester THomas Bull Executor of William Bull brought an action against Fankester and declared that the Defendant enfeoffed his Testator in certaine land and that he covenanted for him and his heirs that he was seised of a good estate in fee and he alleadged the breach upon which they were at issue and now Attoe moved in arrest of judgement first because the Plantiff sueing as Executor had not shewed the Will for it hath been adjudged here that if a man bring an action as executor and do not shew the Will that the Defendant may demurre upon that because it is matter of substance but Hobert said it is very good because the Defendant had admitted him to be responsible but it is true he might have demurred upon the declaration as we often times adjudged here secondly Attoe said that the covenant being made with the heire the executor shall not have an action of covenant for it is annexed to the land which was granted by Hobert and Winch being only present in the Court. Note that it was said at the barre and agreed by Hobert that if the debtor make the dettee his executor he may now retain in debt against him and safely plead plene administravit if he had no other goods and shall not be driven to his special plea and so it had been agreed often times in this Court Parson and Morlees case PArson and Morlees case it was said that the Lord Chancellour presented to a venefice which belonged to the King which was above the yearly value of 20. l. per annum and this was referred to Hobert chief Iustice and to Tanfield chief Barron to certifie whether this was meerly void it remained good till it was avoyded Harris against Wiseman HArris had procured a prohibition against Wiseman who had libelled in the spiritual Court against the Plantiff for a frat in the Church which did belong to his house and it was said by Hobert and Winch only present that a man or a Lord of a mannor who had any Isle or a seat in the Church c. and he is sued for that in the spiritual Court he shall have a prohibition but not every common parishioner for every common seat and upon the first motion at the barre in this case day was given over to the Defendant to shew cause wherefore that a prohibition shall not be granted and the Defendant not having notice of that after the day the Plantiff had a prohibition and now after the day he shewed a good cause and upon that a supersedeas was granted to stay the prohibition in that case Aylesworth against Harrison AYlesworth against Harrison in debt against an executor the question was whether he may plead plene Administravit and give in evidence a debt in which the Testator was indebted to him or whether he may plead the special matter that plea amounting but to the general issue and it was argued by Harris Serjeant the Defendant may plead the special matter and shall not be bound to the general issue to leave that to the lay people who may suppose such a retainer to be an administration and he vouched the 15. E. 4. 18. if a man illiterate seale a deed which is read to him in another manner c. and he delivers that as an escrow to be delivered over as his deed upon conditions performed and this is delivered over before the conditions performed he may in this case plead the special matter and conclude so not his deed or if he will he may plead the general issue of non est factum and so is 39. H. 6. in dower the Tenant said that before marriage the husband infeoffed him and that after the Tenant let to him at Will and that the husband continued possession during his life absque hoc that he was seised of such an estate of which she might have dower and exception was taken there because that this only amounts to the general issue and yet ruled to be good for the lay people may conceive such a continuance of possession during the life of the lessee to be such an estate of which the wife may have dower if this were put upon the general issue and in our case because he had liberty to plead specially or generally he prayed that the Defendant may be admitted to plead specially and that he may not be bound to the general issue Serjeant Hendon to the contrary if one plead a plea which amounts to the general issue see Layfields case Coo. 10. and though in Woodwards case commentaries there was such a plea pleaded yet this doth not prove the contrary for in the same case no exception was taken by the Plantiff and presidents do prove that the Defendants in this kind have been compelled to plead the general issue Hobert if no special matter may be alleadged to the contrary the Defendant shall be compelled to plead the general issue and this is good discretion in the Court to take away the perplexity of pleading because one plea is as good as the other to which Winch being only present agreed and it was ordered that the Defendant here plead accordingly In debt against the heire upon the obligation of his father and in the declaration the Plantiff omitted these words obligo me et hered es meos c. and after error brought the Plantiff prayed that this might be amended because it was the misprision of the Clark only Hobert and Winch said that this shall not be amended for it is a matter of substance but because the clark who made this misprision was a good clark day was given over c. Widdow Archers case IN debt against the Widdow of Archer being executrix of her husband and the Plantiff declared that neither the Testator in his life nor the executrix after his death had paid that omitting those words licet saepius requisitus c. and evil but this omission was amended Sir Edward Grubham against Sir Edward Cooke SIr Edward Grubham brought an audita querela against Sir Edward Cooke upon a recognizance of 4000. l. and this was acknowledged to the use of his Mother and shewed that the conusor had infeoffed him and another in the land and that the conusee had sued execution only against him and it was found for the Plantiff and it was so moved in arrest of judgement by Ashley Serjeant first because he had not shewed in this audita querela when the Statute was certified nor yet the Teste nor yet the return of the writ of extent
within the Statute and â—hirdly he had not shewed what time he was received that so it might appeare that he was an apprentice but for half a year and such a retainer is not within the Statute fourthly the conclusion of the information is contrary to the form of the Statute yet this doth not aide the imperfection of the information for such information only extends to matter of circumstance and not to matter of substance Finch Serjeant contrary that the retainer of an apprentice who departs out of the service of his Mr. without a testimonial is within the Statute of the 5th of Eliz. for the same branch is general there being no person who departs c. and an apprentice is a person which departs secondly the clause of the Statute is be it enacted that none of the forementioned retained persons c. and an apprentice is a person which is in a special manner named before Mich. 19. Jac. and therefore he is within the express words of the same branch Thirdly the form of the testimonial proves that for it is I. W. servant to such c. and an apprentice is such a servant Hobert chief Iustice said that it was never the intent of the Statute to make an infant who is an apprentice to be within the danger of the same Statute for an infant at the age of 14. years may be bound to be an apprentice and the punishment which is given by the same Statute is that such person shall be whipt as a Rogue which plainly proves the Statute intends only those who are of full age and if other construction shall be made perchance that the sonne of a gentleman may be punished as a Rogue by such departure and he held that if an apprentice depart with his Mrs. goods delivered to him that in this case he is not within the Statute of the 21. H 8. as another servant is and Serjeant Finch said that there is an express exception and if that had not been that an apprentice had been within the danger of the law but Hobert said that he doubted much whether an apprentice had been within that Statute though the Proviso had not been made but this proves that the makers of the Statute thought this to be a hard matter to make an infant who is apprentice to be within the danger of the same law and for that reason the proviso of the Statute was made Winch said to which Hutton agreed that when the Defendant had pleaded nihil debet and this was found for the Plantâ—ff yet he may move in arrest of judgement if the matter be not within the Statute adjurned In a replevin the Defendant said that he hâ—d property in the beasts absque hoc that the property was to the Plantiff and so prayed judgement of the writ and it was found for the Plantiff and now Harvey Serjeant moved in arrest of judgment for in no book is found such a traverse as this that the Plantiff had not property but only that the property was to the Defendant and secondly the conclusion of the plea is not good for he ought to conclude to the writ and not to the action Hobert 6. H. 7. is that an action of detinue affirmes the property at the time of the action but a repleviant the time of the taking and two men may have such property in the same thing that every of them may have a replevin and Hutton said that when the Defendant in the replevin claimed property he ought to conclude to the action and Hendon Serjeant being only at the barre and not of councell in the case said that the book of entries is that he shall traverse the property of the Plantiff as in the principal case Hutton Iustice said that this was never seen by him but they all agreed that this being after verdict judgement shall be given for the Plantiff Trehern against Claybrook Ent. Tr. 18. Jac. Rot. 650. TRehern against Claybrook in a debt upon a lease for yeares the jury gave a special verdict to this effect that Iohn Trehern Grandfather of the Plantiff was seised of land in fee and let this for forty yeers rendring rent for which the action is brought and that he devised the reversion to the Plantiff in catle the remainder to Leonard Trehern in taile with divers remainders over and with provises in the same will that for the raising of a stock for the Plantiff and for him in remainder his will was that one Griffith and Anne his wife being daughter of the devisor should have the profits and rent of the said land to their own use until the time that the Plantiff and the said Leonard Trehern accomplish the age of 21. years provided alwayes and upon this condition that the said Griffith and his wife within 3 moneths of his decease enter into bond to the overseers of his will in such a summe and in such a penalty as shall be thought fit by the said overseers and this bond to be made by their advice and if the said Griffith and Anne his wife do refuse to be bound as is aforesaid then the overseers shall have the rents and the profits c. and the jury found over that he made two executors and 3. who were overseers and that the 3. October 16. Iac. died and that within 3. weeks after the death of the devisor the executor read the will to the overseers but they found that the overseers did not remember that and if upon all the matter Griffith and Anne his wife had not performed the condition was the question and that if not the reversion was in the Plantiff And the point in law upon the verdict was whether Griffith and Anne his wife ought of their perils to tender the bond within 3. moneths or whether the overseers ought to make the first act and to tender the bond and the penalty for them to seal and Towse Serjeant argued that Anne and Griffith her husband ought to tender the bond at their peril for he said that the condition did precede the estate and therefore if they will have the benefit of the devise then he ought to tender the obligation and vouched Corbets case and 18. Eliz. the devise of land upon condition to pay money he ought to pay that at his perill Attoe Serjeant contrary and yet he agreed that if the condition was to precede the estate then the law was as Towse had said but here he said the estate precedes the condition for all the profits are devised to Griffith and to Anne his wife during the minority of the Plantiff by which it is apparent the estate is presently in the devisees and by consequence the estate precedes the condition and then the sole doubt will be whether Griffith and Anne his wife ought to procure the overseers to make the obligation and to limit the condition or whether the overseers ought to make this first they being the parties instrusted by the Will
doth not lye for for it is not averred that there was any fellony committed also Iustice Hutton held that in this case the declaration is not good because it is not expresly alleadged with an eo quod that the Plantiff stole the Vetches but only an indictment preferred containing such a matter and Iustice Winch said that the framing of an indictment in a Court of record is not any cause of an action for it is a proceeding in an ordinary Course of justice and for that reason ought not to be punished by an action upon the case for that will deterre and scare men from the just prosecutions in the ordinary way of justice Hobert chief Iustice was of a contrary opinion and yet he said that it is true that the ordinary Course of justice ought not by any means to be hopped or hindred and as that may not be obstructed so neither may the good name of a man in any thing which concerns his life be taken away and impeached without good cause for Courts of justice were not erected to be stages to take away the good name or fame of any man and therefore by the common law if two do maliciously conspire to judict a man without cause though the indictment it self be good and legally drawn yet a writ of conspiracy lies against those which caused this indictment to be preferred and it is as great a slander to preferre a Bill of indictment to the grand jury and to give this in evidence to them as it is to declare that in an ale house and as to the declaration he held that to be good without any averment of an indictment indeed and the indictment in writing and the preferring that to the grand jury containes the scandal and I am of opinion that an action upon the case lyes well see more after Easter 20. Jac. C. P. Hill against Waldron Easter 20. Jac. C. P. HIll against Waldron in an action of debt upon an obligation the condition was that I. S. shall levy a fine to the obligee before such a day of such land the Defendant pleaded that the obligee had not sued forth any writ of covenant the replication was that before the obligation made I. S. had made of feofment in fee of the same land to I. S. and that the feoffee continued in possession at the time of the making of the obligation and upon this the Defendant demurred and in this case two points were moved first when I am obliged that I. S. who is a stranger shall levy a fine to the obligee whether in this case the obligee is bound to sue a writ of covenant and it was argued by Serjeant Harvy that not yet he agreed that if the condition was that the obligor shall levy a fine to the obligee in this case the obligee ought to do the first act viz. to sue a writ of covenant as Palmers case Cooke 5. but otherwise when the fine is levied by a third person for there the obligor had took all upon him 4. H. 7. 15. E. 4. if I am bound to marry the daughter of I. S. and she will not marry me yet I have forfited my obligation and so here he ought to leavy a fine at his perill and at his own costs or at the costs of the obligor But admitting that the obligee ought to sue a writ of covenant because it appears by the replication that before the obligation made I. S. had made a feofment over and that the feoffee did continue possession at the time when the fine was to be leavied and therefore the obligee needs not to sue forth any writ of covenant because he who is to leavy the fine had disabled himself to perform that and he urged Sir Anthony Maines case where Cooke 5. the party needs not to tender a Surrender because that he who had the reversion had granted that over before the Surrender was to be made Serjeant Hendon to the contrary for he argued that the obligation is not forfeit except the obligee sue a writ of covenant and there is no difference between this case and when the obligor himself was to leavy a fine for the obligor had not undertaken for the whole fine but only that I. S. shall acknowledge a fine and if the obligor shall be compelled at his perill to sue a writ of covenant then you will construe the condition to extend to an unlawfull act for it shall be maintenance in him to sue forth a writ of covenant he vouched a case P. 4 Iac. Rot. 1548. Burnell against Bowle the condition of the obligation was that I. S. shall acknowledge a judgement in this Court to I. D. and in debt upon this obligation the Defendant pleaded that the Plantiff had not sued forth any orginall writ and it was holden a good plea and for the second point he held that the obligee ought to sue this writ of Covenant though that I. S. had dismissed himself of the land for the words are general that I. S. shall leavy a fine and this he ought to do though no estate pass by the fine for a fine upon release shall be a good performance of the Condition but otherwise if it had been to make a feofment in fee for a man cannot make a feofment except he be seised of the land at the time as 31. E. 3. debt 164. a man was obliged to present the obligee to such a Church and the obligee took a wife by which he had disabled himself to be a person yet the obligor ought to present him for otherwise he shall forfeit his obligation and so in this case Hobert and Hutton as to the first point held the barre to be good and that the obligee ought to sue forth the writ of Covenant for Hobert said he ought to do that for it is no reason to compel the obligor who is a stranger to the estate which passeth by the fine to sue a writ of Covenant and for that reason if I am bound to compel you to come upon such land to take a feofment I am not bound that the other make a livery of seisin but if the case was that I was obliged to you that I. S. shall leavy a fine to I. N. in such case the fine ought to be leavied at my peril though that I. N. will not sue a writ of Covenant Hutton according but Winch doubted of the case and as to the second point Hutton and Hobert agreed that the obligee as this case is needs not to sue a writ of Covenant because that I. S. had made a feofment of the land before and so had disabled himself at the time of the obligation for now it is impossible to leavy a good fine for if he should enter into the land and put out the feoffee this were not good within the condition and Hutton said it ought to be agreed that if I. S. had made a feofment after the time of the making
son and his wife and upon a demurrer the question was whether this Covenant did raise a present use to the Son and to his wife or whether this only rests in Covenant and Harris Serjeant argued that no present use will arise by this Covenant for first all other Covenants in the indenture are in the future for the words are that the lands shall remain and come c. and therefore till the death of the Covenantor the fee simple is in him and no use will arise for it shall be in the election of the Covenantor what estate he will make to his Son for he himself shall interpret his intent and the difference in our books is when the words are in the present tense and when in the future and for this he cited 22. H. 7. by Iustice Rede if a man Covenant that land shall discend remain or revert he said this did not give any present interest because the wors are in the future and it is in the election of the Covenantor how and in what manner the land shall pass and there he put the case that if I give my horse or my Cow to I. S. there the Donee had election to take at his pleasure the one or the other because the words are in the present tense but if the words are that I will give a horse or a Cow there the Donor had election which he shall have because the words are in the future the Lord Borroughs Covenanted 34. H. 8. Dyer 55. with another in frank marriage with his son that immediately after his death his son shall enjoy the use of his land of inheritance according to the course as then they stood and the question was whether the see simple was presently out of the Covenantor and the opinion was that it was not because it was but a Covenant and did not change the fee simple and so is Dyer 96. Sir Thomas Seymor promised and Covenanted by indenture in consideration that the Covenantee had granted land to him that he would leavy a fine to Wimbish and Pennoy of other lands which fine should be to Sir Thomas Seymor for life the remainder to the Covenantee in taile and no fine was levied and the question was whether any use was raised by this Covenant to the Covenantee and the opinion of the book is that not because it is in the future and he cited the 20. H. 7. 10. the Duke of Buckingham in consideration that the Lord Henry his brother was to marry the Lady Wiltshire he Covenanted with Bray and with others that the Mannors of D. and of S. shall be to the Lady and to her heirs of her body begotten by the said Lord and after the Duke granted to the Lord Henry and his wife for their lives and it was argued whether this second grant is good or no for if it is then the first Covenant will not work to raise an use to the feme and the book left that as a quere and if it be then he argued that in the principal case no present use is raised but that this rests meerly in Covenant and so he prayed judgement for the Plantiff Serjeant Hendon to the contrary for he thought this will raise a present use and that this was the intent of the parties that this should raise a present use for the intent was to advance them first during their lives with the rent and after the death of the Covenantor and his wife with the land it self and therefore of necessity this will raise a present use for a bare action of Covenant may not be any advancement at all and the rather here because they who take benefit of this are strangers to the Covenant and not Preston himself for as it appears by 3. H. 7. a stranger shall not take benefit by a Covenant and therefore he said the intentions of the parties was to raise an use for otherwise there shall be no advancement at all And further the words in the indenture are Covenant and grant and if no use is raised then this word grant is idle and every word shall be so expounded that they may take effect and the word Covenant is insufficient of it self to pass an estate in land or to have any estate in signification other then to a meer Covenant and to be obligatory as is put Co. 2. Cromwels case Tirrels case there vouched a lease for years provided and it is Covenanâ—ed and agreed there the Covenant is a condition and also a Covenant and 8. Ass 1. 12. it is agreed that if I Covenant that an other shall have my land for 7. years this a good lease of the land it self and it was adjudged here Tr. 2. Jac. Rot. 1696. accordingly and in our case this word Covenant and grant is also sufficient to raise an use and to give an interest in the land it self and yet he agreed that if there was an other act to be made by the Covenantor or the Covenantee that then no use will arise but it shall rest only in Covenant Dyer 162. there are Covenants between the Lady Vere and Sir Anthony Wingfield her son that the said Lady would convey to her son by a recovery and that after 6. moneths the said Sir Anthony shall make an estate to his Mother for life and there it is doubted whether the use is changed within the 6. moneths and it was holden that it was not Mich. 20. Jac. C.P. for then it is impossible that the Covenants should be performed and in that case it is in the power of the Covenantor to make an act that the Covenants shall not be performed and therefore Covenants will not raise an use but in our case no act of the Covenantor may hinder that this use shall arise and therefore good and for that the difference is Dyer 296. which is entered 11. Eliz. the Roll of which I have seen the father upon the marriage of his son promised to the friends of his wife that after his death his son shall have his land to him and his heirs and the book is ruled that this did not change the use and the reason was this Covenant was by words and not in writing but it was not doubted if this Covenant had been by writing but that the Covenant will raise an use which is all one with our case and so was Callard and Callards case 37. Eliz. stand forth Eustace reserving to my wife and my self I give to thee and thy heires and there it was doubted whether any use will arise to the son and ruled that not because this was by words only but it was also agreed that if these words had been by writing they had been sufficient to raise an use to the son and he cited Dyer 232. before the Statute of the 27. H. 8. A Covenanted and agreed with B. that upon the marriage of his son with the daughter of the other that he would retain his land for life and that
his son and to Elizabeth Preston and to the heirs of John and so the Defendant claimed by vertue of a lease for 1000. years made by Iohn Buckley and the Plantiff demanded Dyer of the Indenture which was read to this effect that Andrew Buckley by the said Indenture covenanted with Preston that in consideration of a marriage between his son and the daughter of Preston that he will grant a rent charge of 6. l. 13. s. out of his land at Weymouth and at Melcombe Regis payable at 4. usual feasts and he Covenanted for him and his heirs that he would convey the land in Melcombe Regis and Wike Regis to such persons as Preston should appoint provided that the said Andrew Buckley and his wife may injoy that during their lives without impeachment of waste and covenanted that immediately after their deaths the lands shall immediately remain come and be to the said Iohn Buckley and Elizabeth his wife and that the advowson of Bradway shall remain come and be to the said Iohn Buckley and Elizabeth his wife and upon all the matter the question was whether by this last covenant an use will arise of the advowson in Bradway to Iohn Buckley for if an use is raised to him then this lease made by him is good and by consequence the title of the Defendants is good to present to this advowson and if not then the fee alwayes remained in Andrew Buckley the Grandfather and by devise discends did come to Andrew Buckley the Husband of the Plantiff and thâ—n the quare Impedit is maintainable And Hutton began his argument he argued that no use will arise to Iohn Buckley by this Indenture for when a man will raise an use by way of covenant there are 4. necessary things which ought to concur First is a sufficient consideration as of blood or marriage or other Collateral considerations as if I covenant with you that when you infeoffe me of certain land I will stand seised to the use of you and your heirs this is good but if the consideration be for money then this ought to be inrolled or otherwise no use will arise the second point is there ought to be a deed to testifie this agreement for otherwise no use will arise as was resolved 38. Eliz. in Collard and Collards case Thirdly he who covenants ought to be seised of the laâ—d at the time of the covenant as was resolved 37. Eliz. in Yelvertons case a man covenanted to stand seised to the use of his son of such lands as he should afterwards purchase and it was holden void because he was not seised at the time of the covenant and lastly the uses must agree with the rules of the Common law Cook 1. and he cited Chudleys case a man covenanted to stand seised to the use of one for years the remainder to the right heirs of I. S. this remainder is void though this is by way of covenant and use for the free-hold may not be in abeyance and so if I will at this day bargain and sell my lands in fee they shall not pass without the word heirs for it was not the intention of the said Statute to raise uses in such mannor contrary to the rules of the Common law or uses which are uncertain and in our case the intent was that no present use shall arise for out of the same land is granted a rent charge to Iohn Buckley and Eliz. his wife by which it appears plainly that it was not their intent that any present use should arise by the delivery of the indenture and if the use do not arise presently upon the delivery of the Indenture it shall never arise at all also the intent appears for it is that the land shall remain free from incumberances and this sounds only in covenant and for this reason the covenants shall be of the same nature and lastly the covenant is that the land shall remain and be and this is altogether incertaine and for this no use will arise because this failes of words as if I covenant to leave my lanâ— to my son after my death this will not raise an use to my son no more then if I covenant with the friends of my wife that after my death she shall have my goods this will not make my wife to be Executor and he vouched 21 H. 7. 17. 34. H. 8. 59. the Lord Borroughs case Dyer 355. 166. 324. and so be concluded that judgement ought to be given for the Plantiff Iustice Winch argued to the same purpose and he said the first part of the covenant contains that there shall be a marriage before such a day if the parties shall agree and the second part is a covenant that the feme shall have 6. l. 13. s. for her joynture and if this covenant executed an use of the land presently then this destroyes the joynture which was not the intention of the parties Thirdly there is another covenant to convey Coppihold land and if this covenant do raise an use then it will follow that Iohn Buckley shall have the land though the marriage do take effect and besides the covenant doth create an use presently or not at all and then when this use is to be raised by this covenant which contains in that nothing but future and Executory matter this will not create a present use and he cited the books which were vouched at the barre and by Hutton and so he concluded that this covenant will not raise an use presently to Iohn Buckley and that judgement ought to be given for the Plantiff And at another day the case was argued by Hobert chief Iustice for the Plantiff and that no use will arise by this covenant and he said if I will covenant to make assurance of my land to my son or to a stranger this covenant is meerly nugatorie and will not raise an use but on the contrary if I will covenant to stand seised to the use of my son though there is also a covenant to make further assurance yet this will raise a present use for the covenant is declaratory and not obligatory and so is Dyer 235. and there was no word to assure the land or to stand seised to uses but only that the land shall come remain and be in tail or in fee and there was no word to assure the land and this case is agreeable to the case of 21. H. 7. 18. by Rede that no use will arise and the reason is plain because the covenantor had election in which manner he shall have that whether by discent or in any other manner for if I covenant that my land shall descend to my son after my death no use will arise by this covenant and he put the case in Chudleys case that if a man covenant that after his death his son shall have his land in tall it is said that the son shall have an estate executed by the Statute of 27. H. 8. and the
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
Harvey and Blacklock in this Court where the Defendant pleaded such plea in all points as here as to the Fettering for the Defendant fettered the horse of the Plantiff because he was so fierce and so wild to one of his own horses and so continued till he delivered him to the Plantiff and because the horse died within the year the Plantiff brought his action and upon this plea pleaded by the Defendant it was demurred in law and judgement was given for him for Cook who was then chief Iustice said that a horse may be of 40. or 100. l. price and it shall be intollerable to allow such Nusance and secondly he had not made proclamation and so trespass lies against and so in our case Harris Serjeant to the contrary for when the Lord of a Mannor takes an estate he had some kinde of property before the year is expired and for that reason he may detain the estray against the owner till amends is made to him 44. E. 3. 14. 29. E. 3. 6. by Knevet 20. H. 7. by Vavasor and Frewick and if he had property against the owner himself he may use that with moderation to make some benefit of that especially in case of necessity as 22. Assise 5. 6. a man may justifie the beating another if he be in a rage and 6. E. 4. 8. one may justifie the felling of a tree in the ground of another in case of necessity and here is no other way to restrain this Savage Colt and so the justification is good but in this case it was resolved by Hobert Winch and Hutton Iones being in the Chancery First when a beast comes within the Mannor of another Lord this is a trespas but after the seisure for an estray it is a possession of the estray in the Lord and the beginning of property as Hutton used the term so that he may have an action of trespass against any stranger which takes that out of his possession and if he estray into the land of another he may him retake Secondly it was resolved that if the Lord make not proclamation in convenient time that this possession became tortious for the law necessarily imposeth it upon the Lord of the Mannor that he make Proclamation because that otherwise the owner may not come to the knowledge of him Thirdly that the estray within the year is as a pledge in the Custody of the law till amends be made to the Lord and for that reason the Lord may not work him no more then he can work a distress Fourthly it was resolved that if the estray goe into the Mannor of another Lord and the last Lord claims that as an estray the first Lord had lost that but not before claim Fifthly Hutton and Winch agree that he might Fetter the Colt being so fierce and wild for he is answerable for the trespas and wrong which he makes in the land of his neighbours and also to the owner if he lose him and therefore it is unreasonable that he may not keep him safe for his indempnity and that is not like to the case 27. Assise which was urged of the other side also they said fettering is the usual way in the Country to restrain wild horses and therefore if it be in an ordinary manner as he Fetters his own there is not any remedy against the Defendant Hobert chief Iustice was against that last point for the Lord may not hold him in arcta custodia as a prisoner because he had rather the keeping of an estray the the property and for that if the estray go into the land of another Lord the first may not take him again if the other claims him as an estray for the possession was rather in regard of his Mannor then in regard of himself and therefore he shall not answer for the wrong which he doth in the lands of others for the possession is in regard of his Mannor and his Fettering is an abuse and he may not neither use nor abuse an estray and he said over that the Defendant had not well pleaded for another reason because he had not shewed that he proclaimed him in the next market Town within convenient time which convenient time ought to be adjudged by the Court and he said the Lord may not keep him else where within the year then within the Mannor Winch Iustice said the Defendant ought to proclaim an estray ut supra if the year be past for by that he gains an absolute propertie but here where no property is devested he needs not to proclaim him within the year and Hobert commanded this case to be moved again see the last case but one in the book Ruled that after imparlance in debt upon an obligation the Defendant shall be admitted to plead alwayes ready though the 13. Eliz. in Dyer was urged to the contrary Hill 21. Jac. C. P. Hillary Term in 21 year Iac. C. P. Trehern against Claybrook TRehern brought an action of debt against Claybrook upon a lease for years and upon nihil debet pleaded and a special verdict the case was to this effect the Grandfather of the Plantiff was seised of lands in Southwark and he made a lease for years of that to the Defendant at London rendring 45. l. rent and after he devised the reversion to the Plantiff in fee and in his will he set forth that his intent was that his Executors shall have the reversion during the Term upon condition that they enter into bond to pay 34. l. per annum at 4. usual Feasts during the Term and he further devised that this bond shall be made by the advise of his overseers and he limitted all this to be done within 6. moneths after his decease and if his Executors refuse his will was that his overseers shall take the profits upon the same condition and appointed that both obligations be made to the Plantiff and the devisor died and the Executors within 3. moneths shewed the will to the overseers but no obligation was offered to be made within the 6. moneths and the Plantiff required the Executors to enter into the obligation and to pay the rent which was not done and he claimed the reversion and brought his action afterwards in London where the lease was made and not in Southwark where the land did lie and this case was twice argued by Councel at the barre and now it was argued by the 3. Iustices Hobert being absent And Iones Iustice moved a point which was not moved at the barre viz. that the Plantiff is devisee of the reversion and so is privie in estate only and for that reason the action ought to be brought in Southwark where the land lies and not in London where the contract was made but the lessor himself had liberty to bring the action where he pleased in regard of the privitie of estate and contract and so was it adjudged in the Kings Bench between Glover and Humble and here though this be
in capite and others in Soccage and he made a devise of all his fee simple lands and left only his lands in tail to descend to the heir which doth not amount to a full third part this is a good devise of all the fee simple lands and this case was also admitted that where the Lord Norrice gave land to Sir Edward Norrice his youngest son and to the heirs of the bodie of the father and then the Lord Norrice died and after Sir Edward died without issue that the son of the eldest Brother who was then dead shall take that as heir in tail and that he in this case had that by a descent from Sir Edward Norrice his Vncle which also doth clearly prove that in this Sir Edward Norrice son of the Lord Norrice was in this case Tenant in tail The residue of Easter Term in the two and twenty year of King James Stephens and Randal IN replevin between Stephens and Randal who made Conusance as Bailiff to the Earl of Bath and he shewed that such land was parcel of such a Chantrey which came to King Edward 6. by the Statute of 1. Edward 6. and also he pleaded the saving of the said Statute by which the right of others was saved and pleaded all incertain and shewed that so much rent was behinde upon which he made Conusance as c. to which the Plantiff replied that the land is out of the fee and signiorie of the Earl of Bath c. and this was ruled to be no plea for he confessed so much in his avoury and this avoury is not for rent service for the signiorie is extinct by act of Parliament but this is for rent reserved by the saving of the act of Parliament and this is a rent seek and yet is destrainable for the priviledge which was before but he may traverse the tenure that at the time of the making of the Statute nor never after this was holden of the said Earl of Bath Priest and King Priest and King in an action of which was entered between them Trin. 21 Iac. Rot. 3595. and this was debated between the Iudges and the Prothonotaries and the case was that two were bound for the appearance of an other and judgement was given against the debtor now if upon the capias he come and offer his bodie and the Plantiff refuse that yet that discharges the sureties but the Prothonotaries said that notwithstanding this refusal he may take a Capias against him within the year because that at the first he might have had a fierie facias or an elegit quere of that but Winch thought that in this case he ought to have a fierie facias but if he had come upon the Capias and had no suerâ—tes and he refuse to take him and this is so entred now quere if he had not discharged him Hendon moved the Court for a prohibition to the spiritual Court and suggested that one had libeld in the spiritual Court for a legacie and the Executor shewed that he had not assets to discharge the debts of the Testator and that Court would not allow this allegation and upon this he prayed to have a prohibition and it was the opinion of the Court that no prohibition shall be granted for the legacie is a thing meerly which is determinable in the spiritual Court and no other Court may have Conusance of that and this is also a thing which doth consist meerly in the discretion of the Court and resolved that in a thing which meerly doth rest in discretion of the Court in this case no prohibition shall be granted Henry Good against Thomas Good IT was agreed in the case by the Court between Henry Good and Thomas Good that if the devisee of 500. l. sue in the Marches of Wales for this legacie that a prohibition is grantable for though the Court of the Common pleas had no power to hold plea of that yet because that the thing is only triable in the Ecclesiastical Court a prohibition may be granted to reduce that to its proper Court and though the instruction of the Court of the Marches be to hold plea of all such things wheresoever there is no remedie at the Common Law yet this is to be understood of matters of equitie and not to take the jurisdiction from the spiritual Court for in verity the King may not do that by his Letters pattents but yet the Court agreed that if the Executor do suffer a decree against him in the Court of the Marches and not come to them at the first to be releived it is now meerly in the descretion of the Court whether they will grant that or no for that is a means to lengthen suits and to make the more delay before he do recover his legacie If a Capias ut legatum issueth to the Sheriff to take the partie and to enquire what lands and Tenements he had and the Sheriff findes by inquisition that he is seised of many lands and continues possession in them and the Sheriff do out me I shall have an action of trespass John Marriots case SErjeant Crawley moved this case in arrest of judgement in the case of Iohn Marriot and he declared upon a contract to table with the Plantiff at Ashton in Northamptonshire ad tunc ibidem superse assumpsit to pay 4. s. by the week for his diet and Crawley moved that this ought to have bin tried in Northamptonshire for these words ad tunc et ibident refer to Northamptonshire which was next before and not to London Hutton said that it ought to refer to London otherwise it was idle and it is to be intended of the time and the place where the promise was made but it was said if the issue had been whether he was tabled or no this shall be tried there Giles Bray against Sir Paul Tracie GIles Bray brought an action of waste against Sir Paul Tracie and in his declaration he conveyed a good tearm to the Defendant and a reversion to himself and upon a general issue a special verdict was found to this effect that Sir Edmund Bray was seised of this land in his demeasne as of fee and he being so seised 16. Eliz. made this lease for divers years to I. S. and he being so seised of the reversion conveyed that to the use of himself for life without impeachment of waste and then to the use of Edward Bray his eldest son and to Dorothie his wife and to the heirs males of the said Edward upon the said Dorothie to be ingendred and then Edward died having issue in tail the Plantiff and then this lease was assigned to Tracie and then Dorothie died and then the waste was committed and then Edmund the Grandfather died and the question was whether in this case an action of waste will lie or no. The argument of Serjeant Harris HArris argued that the waste doth lie for the priviledge or despensation which was annexed to the
reversion for life of the Grandfather is no dispensation to the estate of the lessee for though the action was suspended during his life yet now it is on foot again and in many cases an estate may be dispunishable of waste and yet by matter ex post facto this shall be punishable viz. where the first privitie of the estate was determined as in case a lease for years be without impeachment of waste and then the lessor releases to the lessee c. the first privity is gone and he is now punishable in an action of waste and here in our case there was no absolute dispensation but only for the time and yet perchance though the estate is subject to waste in the creation yet if the lessor will afterwards by his deed grant that this shall be dispunishable this may priviledge him but here is no such matter in the case at the bar and of this opinion was the Court and Winch said that there was no difference where the Franke tenement is intercedent for if this be not punishable yet the particular estate shall not participate of that priviledge of him in the remainder and Iones Iustice said if the particular estate had been extracted and drawn out of that estate for life in that case that had been dispunishable but it was agreed by Hendon Serjeant that the Plantiff in his declaration had declared of a waste after the estate for life was determined and they found that this was made in the time of him in reversion for life and so differed but the Court was of opinion that this was nothing to the purpose for it is only a variance from the time and not from the matter for it is not material whether this was before his death or after his death because in both cases this is punishable but day was given over to shew other causes Portington and Beamount IT was argued clearly in the case between Portington and Beamount that if the Court of the Councel of York which is a Court of equitie do decree against a maxime in law as against a joynt Tenant who had that by Survivorship that the heir of his companion shall have the Moietie that in this case a prohibition shall be granted except that during the lives of the parties it was agreed that there shall not be any Survivorship and then they hold plea upon that equitie and then good In Dower it was agreed clearly that if the Tenant shew that before the husband any thing had in the land A. was seised of the same land in fee and leâ— that for years rendring rent and granted the reversion to the husband of the Plantiff who died seised of the said reversion and so demanded judgement if the demandant shall have Dower c. this is no plea in bar of Dower but proves she had title of Dower but this saves the lease for years and she shall have judgement only of the reversion and of the rent and also she doth save to the Tenant damages and the demandant shall be indowed of the reversion Summers against Dugs SUmmers brought an action upon the case upon a promise against Dugs and he shewed in his declaration that the Defendant was rector of the Rectorie of D. and that he and all his predecessors had used to have all manner of Tithes and said that he the Plantiff occupied 100. acres of land in the same parish and shewed that the Defendant promised to the Plantiff that in consideration that he would plant his lands with Hops and so make the Tithes to be the better the Defendant promised to the Plantiff to allow him towards every acre which he shall so plant 40. s. towards the charge in planting them and he shewed that he planted an acre at the request of the Defendant and so upon the promise brought the action and now it was moved whether this was a good consideration to ground an action because the Tithes are not bettered by the planting of that with Hops but by the growing of them and the increase of them and he had not averred that the Tithes were of better value then they were before and it was also moved that he may not have an action for the Rood c. but this afterwards was referred to Arbitrement but the Court said if the Plantiff had shewed in his declaration that he might have made more benefit of that by other means then that by the planting of it with Hops the Tithes also being bettered then it had been more cleare Philip Holman against Tuke PHillip Holman was executor of George Holman and he brought an action of debt against George Tuke and declared upon a lease made by himself by the name of Philip Holman executor of the Testament of George Holman deceased of such land and the said land was delivered to him in execution of a Statute by extent which Statute was made to this Testator and this lease was for years if the Plantiff should so long continue seised by force of the Statute and it was rendring 100. l. per annum and for 3. years rent behinde he brought his action in the debet and in the detinet and also in the declaration he averred that he did continue seised so long by vertue of the extent and Serjeant Bing demurred in law because he said the action ought to be brought in the detinet only because he had brought the action as executor but Hendon and the Court c. Iones and Hutton to the contrary because the lease was made by himself and Hutton said in the case there is difference between a personal contract and real and it was said that an executor shall never be forced to bring his action in the detinet only where he need not name himself to be an executor which note well It was agreed in a case by Hobert that where a man brought an action de parco facto and declared upon the breach of a pound and also of the taking out of beasts and the Defendant as to the taking out of the beasts pleaded not guilty and as to the breaking of the pound he said that he was Lord of the Soil upon which the pound stood and thaâ— he brake of the Lock and put a lock of his own and Hobert said in this case that he ought to plead the general issue for in verity this is not any broach of the pound except the beast come out of it and Iones Iustice was of an opinion that if he put out the beasts he may not have this action because the freehold was in him but he ought to have a special action upon the case Entred in Easter Term in the 19th year of King James Rot. 1672. Ellen Goldingham against Sir John Saunds ELlen Goldingham brought an action of Dower against Sir Iohn Saunds to be indowed of the third part of the Mannor of Goldingham and he vouched the son to warranty as son and heir to Christopher Goldingham husband of
Plantiff in Hammond which indenture rehearseth that King Henry the eight was seised of this land in his demeasne as of fee in the right of his Crown from him conveyed that to Ed. 6. who in the 7. year of his Raign by his letters patents bearing date at Westminster he granted that to one Fitz Williams to Hilton in fee as by his letters patents may appear they being so seised by indenture which bore date c bargained and sold that to Henry Hoskins and to Proud also recited that Proud releaseth to the said Hoskins all his right as by the said release may appear and conveyed that to Iohn by discent and so the said Iohn being seised he and his son Peter made this conveyance to the Plantiff upon a good consideration in which they did covenant with the Plantiff in this manner and the said Iohn and Peter for them and there heirs do Covenant and grant to and with the Plantiff c. that they the said Peter and Iohn Hoskins according to the true meanâ—â—ing of the said indenture were seised of a good estate in fee simple and that the said Iohn and Peter or one of them have good Authoritie to sell that according to the intent of the said indenture and that there was no reversion or remainder in the King by any Act or Acts thing or things done by him or them and the Plantiff laid the breach that neither Iohn nor Peter had a lawful power to â—â—ll the Defendant pleaded that Iohn had a good power to sell that according to the intent of the said indenture notwithstanding any Act or Acts made by him or his faâ—her or by any claiming under them and upon that the Plantiff demurred and the case was now argued by the Court and Iones Iustice began and said that his opinion was that the Plantiff shall be barred the case being upon construction of covenants and the sole question is whether they are several covenants or only one covenant and I held that they are all one covenant and those words for any Act or Acts do relate to the two other precedent sentences and so it is all but one covenant though this stand upon several parts for if these words were placed in the fore-front there had been no question but that this had been but one covenant and this made no difference when it is set before and when it is set after and the repeating of that had been toutalogie for if I covenant I will build a house at Dale Sale and a vale of Brick here Brick shall refer to them all because it is tied in one entire sentence and covenant and so if I covenant with you that I will goe with you to Canterbury to Salisbury and Coventrie here the word goes relates to all 3. as in the case of Sir Henry Finch the rent was granted out of the Mannor of Eastwel and not of the Messuage lands and Tenements lying and being in the Parish of Eastwel or else where in the same Countie belonging thereto and resolved that land which is not parcel of the Mannor is not charged with the rent because it is all but one sentence and one grant and cited the case of Althams case and Hickmots case where special words will qualifie general words where they are all in one sentence and so I conceive they are but one covenant Cook 8. 9. especially in the intents of the parties and upon the intents of all the parties of the deed for when a deed is doubtful in construction the meaning must be gathered from all the parties of that but yet that is tied with two cautions that it be not against any thing expressed by the said indenture but only in case where it is doubtful Cook 2. 5. so Cheineys case and Baldewins case a habendum will destroy an implied premisses Cook 4. but not an expressed and so in Nokes case an express particular covenant qualifies the generalty of the implyed covenant like to the case which was 32. Eliz. in the Court of Wards between Carter and Ringstead Cook 8. where Carter was seised of lands in Odiham and of the Mannor of Stoy and there covenanted that he would Levie a fine to his son of all his lands in Odiham in tail and for the Mannor of Stoyes that should be to the use of his wife now these subsequent words drew that out of the tail according to the intent of the parties and so in our case and I also take an exception to the form of the declartion for he conveyes that to Fitz Williams and to Proud and Hoskins by the name of all his lands and Tenements which were in the tenure of Anne Parker and did not aver that these lands for which the Covenant was made were in her hands and for that it is not good and for these reasons I conceive the Plantiff shall be barred The argument of Hutton Justice HUtton to the contrary I hold that they are 3. several Covenants and yet I agree the cases afore cited and the reason is they are all included in one sentence for it is the care of the Purchasor that he had an owner of the land before he purchase for that which is the ground of assurances that he is seised in fee and hereafter that the Covents that this is free from incumberances made by him and that he had good title to alien which strikes at the very root of assurances and my first reason is because here are several parties and they covenant that one of them is seised of a good estate and that they or one of them had power to alien that for it may not stand with the intents of the indentures to buy of him who had no title and might not sell and also the last Covenant is meerly in the negative that they have made no Act or Acts by which the reversion shall be in the King and that is all one as if the word Covenant had been added in every clause of the sentence and Covenants in law may be qualified by express Covenants but if a man made a lease for years upon condition to pay 20. l. in this case an entrie by the law is implyed for default of payment but yet if it added that if it be behinde he may enter and retain till he is satisfied of the 20. l. now in this case this had taken away the implyed Covenant and condition but every express Covenant must be taken most beneficially for the Covenantee and in Nokes case it is said that an express Covenant controuls an implied one but he may use either of them at his pleasure and election and I grant Henry Finches case to be good law for there is not any clause or sentence till after the Alibie but yet in Dyer 207. they are distinct sentences and shall receive several constructions and so here the matter being several they shall receive divers constructions and he Covenanted that
he was seised in fee and that he had power to alien that and this was to encourage the Purchasers and for the form he needs not aver that this was in the hands of Anne Parker for he had confessed that in the bar that he came lawfully to that and besides the Covenant is broken though he never was seised and so I conceive that the Plantiff shall have judgement Winch to the same intent it is true if it had been all but one Covenant then if it had been no question this had not been broken but I think they are several Covenants like to the case of Sir Robert Napper lately adjudged also the first two Covenants are in the affirmative and the other in the Negative and for that they ought to be answered with several pleas and these kinde of assurances are the Common assurances and therefore they ought to be interpreted favourably for the Purchasers and Iohn was not deceived in these Covenants for they brought down upon the deed an estate in fee and it is also agreed if the word Covenant and grant had been divers times added to the several clauses then they had been several Covenants and now it is all one word and made those to be several Covenants and words of relation never will controul that which is certainly put down before and so he concluded in this case the Plantiff shall have judgement to recover Hobert chief Iustice to the contrary every deed ought to be construed according to the intention of the parties and the intents ought to be adjudged of the several parts of the deed as a general issue out of the evidence and intent ought to be picked out of every part and not out of one Word only and here Peter joyned with his father to strengthen the assurance and Iohn had not only his own estate but the estate of Proud and it is plain he never meant to intangle himself with other Conveyances then those which he and Proud had made and I hold this to be no independent Covenant and it is all bound with one clause S. for any Act or Acts made by them c. and it is confessed if these words had been placed in the forefront that then they should relate to all and it is as clear as if they were and the first reson is that the intent appears only to undertake for himself because he should but have part of the land and for that he was to warrant his evidence and to that end he was to deliver to him his title at large in the said indenture and here he had made the Plantiff privie to every several conveyance of that to inform the Purchaser of it and will you also intangle him with a covenant you might have taken notice of his title and it appears to be the very intents of the parties that you should take notice of the title and inform your selves concerning the same Secondly this is a sentence which may be taken both wayes and I say it is agreed that if it had begun with these words notwithstanding any Act or Acts c. that then it shall be all construed by this and I never saw any difference I grant they are several Covenants in point of fact but not in point of obligation for there are not several words of binding nay I say if he had released this last he had released all but it hath been said that one is in the negative and the other is in the affirmative but I do not value that and it hath been said that this is the Common assurance of the Realm and if other construction shall be made then no man shall be sure of his own we had given him leave to say that no reversion nor remainder is in the King by any Act by him made and the King may not have any reversion and he seised in fee also this clause standing indifferent whether this shall be referred to all or not and then the question is how the Court will adjudge of that for my part I take it that this may stand with the intent of all the parties of the deed but take that as you take it that this destroyes all for if he is absolutely seised in fee what matter is where the reversion is and yet if the reversion was in the Crown and not by his Act you confess that may not charge him which is expresly against the first Covenant if this be distinct by it self but take that indifferently and all the parties will stand together Nappers case hath no affinity with this for questionless there were several Covenants for in that indenture it did not appear what estate Sir Thomas Eearsfield had and for that reason nothing might be collected out of that but he had a present estate but in our case all is contained in the bodie of the indenture and Nokes case is a strong case and stronger then the case at the bar is for thereupon construction of all the parties of the deeds the special warrantie controuls the general warranty and the reason is no man will take an express special warranty when the intent is that he shall have a general warranty there was a case lately ajudged between the Earl of Clanrickard and his wife against the Countess of Leicester where the Lady pleaded that she was Tenant in Dower where in veritie she had the revesion in fee expectant upon a Term for life and they conveyed all the estate the Lady had in Dower and then they covenanted that they would convey all their estate to the Lord of Leicester and his heirs during the life of his wife and then Covenanted that they would convey all their estate to the Earl of Leicester and his heirs for ever in the aforesaid land and it was resolved that though such Covenant will raise an use to the partie who ought to have that and so the reversion will pass if there had been no more words now it was but during the life of the Lady for that third part for the Covenant was but to strengthen an estate and not to convey it and so he concluded that the Plantiff should be hard and after it was said by the Court that this case was not of weight to be brought into the Exchequer Chamber and therefore the Court advised that the parties would agree quere for the residue in the Exchequer Chamber concerning that Entred Hill 18. Jac the case of Comendams Richard Woodley against the Bishop of Exeter and Mannering RIchard Woodley brought a quare Impedit against the Bishop of Exeter and Mannering who was Parson of the said Church and he declared that Arthur Basset was seised of an acre of land to which the said Advowson was appendant in his demeasne as of fee and that he the 13. Octobris 13. Eliz. granted the next advowson to one William Manwood who was then incumbent in the said Church who by his will 20. November made one Harcourt his executor
the year and afterwards the money not being paid Hickman sued forth a Capias ad satisfaciendum against Sir William Fish directed to the Sheriff of Bedfordshire for 210. l. and now upon a habeas Corpus Sir William Fish was brought to the bar and Serjeant Crawley moved for a supersedeas for him because the writ emanavit improvide c. and by the Court it is a cause to discharge him of the execution for the Capias ought to have issued for 200. l. only and he ought to have sued a scire facias though this was after the year because the Proces was not continued but they said withall it was in their discretion whether they will grant a supersedeas for they may put the Defendant to his writ of error It was ruled that if an action of debt was brought and the venire facias to trie the issue is in placito debiti and so is the habeas Corpus and the Pannel but in the Iury Roll of the nisi prius at the latter end of the jurata there it is placito transgressionis and agreed in this case this is amendable or in this case it is good without amendment Wen against Moore THomas Crew Serjeant did move in arrest of judgement where one Wen brought an Action upon the case against Moore and upon non assumpsit it was found for the Plantiff and he said that the Colloquium was laid to be at Bourn in the Countie of Lincoln and the venire facias was de Vicineto de Born without the letter u. and for that reason that they are several Towns therefore error for if the entire Town is omitted the trial is insufficient but the Court held this to be very good without amendment and shall be intended to be the same Town It was moved in arrest of judgement by Serjeant Finch that where one had brought an Action upon the case against one and shewed that the Defendant in consideration of 12. d. given to him by the Plantiff he assumed and promised that if the Plantiff may prove that he cut quandam arborem upon the land of Sir Francis Vain tunc crescent that he would give to him 10. l. and this being proved by the Plantiff it was now moved in arrest of judgement that quandam arborem is an individual tree and it ought to be aliquam arborem and another cause was alledged because it was not shewed that this was upon the land of Sir Francis Vain then growing but only he had said growing and that may be for perchance he purchased the land afterwards and before the Action brought and so it might be growing though not tunc crescent at the time of the promise but the Court c. Winch Hutton and Harvey seemed that the declaration was good for they said there is no question if quandam had been out this had been good for it is the singular number and he that certain or be that incertain yet by the verdict it is made certain that this is a tree and also those words tunc crescent do refer to the time when the tree was feld and not to the promise Holman against Sir Thomas Pope and Elizabeth his wife SErjeant Hendon moved in a case where an Action was brought by one Holman against Sir Thomas Pope and Elizabeth his wife as daughter and heir to Sir Thomas Watson and pending the writ Pope died and he moved that the writ ought not to abate because it is brought against her as daughter and heir where the land is assets in which the husband had nothing like to the case of an Executrix who brings her action in her own name and the name of her husband and pending the writ the husband dies the writ shall not abate but Justice Harvey said this case of Executors was adjudged against him and Hobert chief Justice was of opinion that the writ shall not abate but day was given over in that case Sir Thomas Holbeach against Sambeach IN the case between Sir Thomas Holbeach and Sambeach in a replevin where a demurrer was joyned the case was this one being Tenant for life and he in remainder in tail joyned in a grant of a rent in fee out of that and then they joyned in the levying of a fine to a stranger and his heirs and in this case it was said that the estate of the grantee of the rent which before was determinable is now made absolute and a judgement was also cited to be in that case lately adjudged to which the Court seemed to agree and they said if this be the point they will give judgement presently Crompton against Philpot. HEndon Serjeant moved in arrest of judgement in a case for Philpot a crier of this Court where one Crompton had recovered 40. l. damages against him in an action upon the case for words spoken against Crompton c. he innuendo the Plantiff stole a ring and had been hanged for that but for me and it was said in the first place that it doth not expresly appear that the words were spoken of the Plantiff himself neither is this introduced by any precedent Colloquium as it ought for otherwise the innuendo will not aide it but in veritie the declaration was that the words were spoken de eodem Richardo innuendo c. and also he said that the words are not actionable because that no value is exprest but it was ruled if that were but petie Larcenie the action lies but the Court gave no absolute opinion in the case for they were willing to compound for the poor man The residue of Michaelmas Term in the two and twentieth year of King James Brown and Ware against Barker BRown and Ware brought an action agaist Barker and they declared that whereas there was a suit depending between the Plantiffs and other Coppiholders of such a mannor in the Chancery against Brook their Lord and that one Woolsey was there Clark and that he for his fees and for the procuring of a decree had disbursed 14. l. and that there being a Communication between the Plantiff and the Defendant concerning the same he being a Coppiholder of the same Mannor that in consideration that they would pay to Woolsey 14. l. he would pay to the Plantiffs 40. s. upon request and the Plantiff shewed that they had paid the 14. l. and that the Defendant had not paid the 40. s. Licet postea saepius requisitus fuisset and upon non assumpsit pleaded it was found for the Plantiffs and now it was moved in arrest of judgement by Crook Serjeant First because he is a stranger to the suit for he had not alledged that the Defendant was a partie and then it is no consideration but this was over-ruled because they paid the 14. l. upon his request the second exception was that this postea saepius requisitus was not sufficient in this case because that he ought to express the certaintie when and the place where the request was made
after the promise and the 14. l. paid and he said there is a difference where a thing is a present dutie and where it is a dutie upon request or upon any Collateral Act there the request is traversable otherwise when it is a dutie upon a contract or upon an obligation there Licet saepius c. is sufficient and according to this it was adjudged Hill 18. Iac. Rot. 1894. debt upon an arbitrement between one Prideaux and Walcot for the payment of 340. l. upon request and it was alledged there that he had not paid that Licet saepius requisitus and it was adjudged that in this case it was not sufficient because it was not a dutie presently but upon the request and the place where the request was made ought to be put in certain and he cited another case H. 16. Iac. between Hill and Moor adjudged in this point of assumpsit as in our case for where it becomes to be a debt payable upon request there ought to be alledged a time and place of the request and so H. 30. Eliz. one Welborns case where a man promised to pay so much money for costs of a suit when he should be requested to pay that and there after verdict judgement was arrested and Hobert said that the request is part of the cause of the Action and for that it ought to be set down precisely and there ought to be a promise broken and such a promise upon which an issue may be taken Bubles case IT was argued in the case of Buble who was Administrator during the minoritie of an Infant that the Court of the Marches of Wales have no Authoritie to force such an Administrator to accompt before them but only the Ecclesiastical Court and if they intermeddle in any such thing this Court may grant a Prohibition The great case of Cooper and of Edgar in Ejectione firme I In Ejectione firme between Cooper and Edgar for diverse lands in Norfolk upon a lease made by Downey and his wife for 5. years and upon the general issue the jury gave a special verdict to this effect that one Henry Foyne was seised ofland in his demeasne as of fee and 9. April 34. Eliz. infeoffed Iustice Windham and others to the use of Anne his wife for life the remainder to him and his right heirs in fee and then Henry died and that the reversion discended to Robert Foyne as son and heir to Henry and he being so seised of the reversion 11. Iun. 10. Iac. by indenture made between Robert and Anne his Mother who was Tenant for life it was agreed that Robert should levie a fine of that in Trinity Term and this fine was to be to the use of Anne and her heirs for ever if Robert did not pay or cause to be paid to Anne 10. l. upon the first of September next and if he pay then it shall be to other uses S. to the use of the same Anne for life of that part of which she was seised and of the residue to the use of Robert and his heirs and they found over that the fine was levied to the same uses the same term and they found over that Robert died at the age of 20. years and a 11. moneths and this was before the first of September and it was found that one Anne and Elizabeth under whom the Plantiff did claim were sisters and heirs to Robert and that they had not any notice of the use nor of the indenture and that they did not pay the money upon the first of September but that afterwards they entred and made the lease c. and the Defendant claimed under Anne who is now the Lady Cesar and now if upon all the matter the Defendant be guilty was the question And Crawley Serjeant argued for the Plantiff and the substance of his argument was in this mannor and first he said that he conceived the points to be upon the special verdict either to concern the antient estate or the new estate of the Lady Cesar and here we are also to consider whether the uses are well created and stand good by the indenture and by the fine without the help of the special verdict and first I will not dispute when an Infant levies a fine and dies before the reversal of that whether his heir may avoid that and this is ruled in Cooks Reports 10. H. 7. 16. that this may not be because that this trial ought to be by inspection which now may not be when he is deed but that which I will insist upon in the first place is this when an infant made an indenture to declare the uses of a subseqent fine and he doth after that at another time levie a fine generally without expressing of any use in the fine whether he may any wise enter and avoid the uses of the same fine or whether the law of necessity doth adjudge the fine to be to the same uses without the help of any Averment and I hold that he may avoid those uses which do stand upon this difference that it is incongruous to reason that if the law admits a man to be of abilitie to levie a fine then at the same instant or after he may declare the uses because it it is intended that he is of full age and if this had been a fine with grant and render in which there is alwayes an use expressed as 26. H. 8. 2 that the grant of an Infant is absolutely void but I do agree the case in Beckwiths case of a feme Covert Cook 2. or of a man of nonsane memory that their declaration of that subsequent use is good because that the fine which is levied by them is a perpetual Bar and conclusion and by such means there disposal doth conclude them for ever but it is otherwise of an infant for he may avoid the fine by error during the minoritie and the opinion of the book of 46. Ed. 3. 34. is that if an infant do alien a rent he may bring a dum fuit infra aetatem which seems to infer that the grant of an infant is not absoluely void I answer that is but the admission of the Court and 15. 7. 4. if an infant made a deed and at full age he inrolled that this is a conclusion for him to denie that for this inrolment is an affirmance of that and the reason of that is because this is an affirmance of the same thing but here the fine and the uses are distinct and for that they are voidable and for the other point the derdict had found that the fine was levied to the uses aforesaid whether that had established the uses and made them unavoidable so long as the fine is in force and I hold that it had not for it is no more then ad usus supra dictos and it had not bettered the uses for they had no reference to aide the uses like to the case of the Earl of Leicester
mean time the second point is whether the heir of Robert Foyne may pay that or is bound to perform that then the law dispenceth with that for it is limited if Robert do not pay and so it is personall to him like to the case in Plowden when a thing is reserved to be made by the person of a man no other man may perform that neither the heir nor yet the Executor as in Dyer 66. 8. H. 4. 19. 21. Ed. 3. 29. where the heir is not named he is not charged and 10. Ed. 4 12. 11. Ed. 3. 16. and so in this case because it is personally limited to Robert Foyn and ergo if he do die there the law will not compel the heir and that is the reason of Littletons case fol. 76. for there though the father Morgaged and the son is not named in the condition yet because he had an interest in the condition he may perform that and so the case fol. 77. the feoffee of the feoffee may perform that though it is annexed to the first feoffee only and this is for the salvation and safety of his estate and in the first case being in A. Morgage the law said that the heir shall not be prejudiced but when it is a voluntarie Act and in point of discretion to the father there the son may not perform that and here the law had prevented the father in the point of election ergo it is discharged and it is like to the case of the Countess of Arundel where a thing is annexed to the person of a man no other may perform it and so here the heir may not perform that for it is discharged by the death of Robert Thirdly admit that he may perform that then the question is whether default of notice may not excuse and here the Lady was a partie to this condition in the indenture and here the ignorance of the fact may excuse and when the law doth put a man upon a necessitie there it will excuse him as 44. Ed. 3. 61. and 50. Ed. 3. 39. and so the Law will not impose a necessitie of notice upon him The residue of the case of Cooper and Edgar by Serjeant Crook BVt Crook said that he being heir is bound to take notice but for answer to that I will cite you one express case Francis case Cook 8. for there the heir was not bound to take notice of the proviso in the feofment without notice given to him of it Winch that case directly complies with our case and so Farmers case Cook 3. lessee for years in possession levies a fine that doth not bar the reversioner because he continued in possession at the same time and he had not notice of that and here if the Ancestor had not died seised there had been some colour that he might have had notice and this differs from Littletons case where the heir may pay the Morgage that in that case he ought to take notice at his peril because he did not die seised Corbets case and see 4. Coo. 8. where land is given to executors to take the profits there resolved that default of notice doth not hurt them but they shall hold against the heir now for that last point whether the estate for life is saved by the Statute of the 27. H. 8. or whether it is gone by the acceptance of the fine and I think it is gone and yet I agree if it had been lessee for years it had been within the saving of the Statute because he is but a conduit pipe to convey that but in our case when it is by limitation of the use then it will not be saved because that it is by her own provision that the use is so limited to her and so the law will not aid that and by the common Law it is an express determination of the estate 1. H. 7. also the cases of Tenant for years being within the saving of the Statute doth in no sort help this case for it may well stand with the estate but out of the freehold the uses do arise and besides the law will not provide for him who had not provided for himself as 5. H. 7. 7. if a man made a gift intaile rendring rent the Law will not raise any other tenure and it is a rule in law that a man shall not take an estate by implication where he had expresly limited an estate to himself and to that purpose there was a good case Hill 13. Eliz. between Richmond and Bowcher where a lease was made rendring rent to the lessor his executors and his assigns and there the lessor died and it was ruled in that case that the Executors nor the assignes shall not have that nor the heir for it was not reserved to him and in 16. Iac. one Farmers case where such a lessee for years took a feofment with an intent to suffer a recovery but he continued in possession two terms after before he suffered the recovery and yet it was adjudged the Term for years was saved but here he being Tenant of the freehold this may not stand with the limitation of the uses and so I pray judgement for the Plantiff The argument of Davenport Serjeant DAvenport to the contrary after a Recital of the case said that he thought this to be a subsequent condition for here are two uses limited and so there is two conditions for the first if if he do not pay this is subsequent and the estate doth proceed but the other is precedent and the estate is subsequent and the sole difference when if makes a precedent and when a subsequent condition is upon the words for in this case words make the case and if the estate is limited first and then the condition seems annexed in words to determine that in that case it is a subsequent but if the Act is first appointed to be made and then the estate is limited by express words there the estate will not begin till the tunc is performed and so is the very difference 14. H. 8. 22. and there the principal case is adjudged to be subsequent and upon that difference is 15. H. 7. and Coo. 7. where the estate is first limited and then the condition is after that and the meaning of the parties was that the Lady shall have the fee if the other will not redeem that and I desired to be tried by no other cases then those which my brother Crook had cited Mary Portingtons case si is a proper word to determine an estate and then the estate ought to be before and for the difference between things executed and things Executory under favour that is no difference but that is as the words are placed and I denie the case of Executors put by my brother Crook and so I say it is a present estate but it is defeasable after by payment but now for the second point whether it was discharged by the death of Robert or whether
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
and at that day the Court was of opinion that judgement shall be given for the Plantiff for by the rejoynder the Defendant had shewed that he had forfeited the bond though that be another matter then is in the replication and so he shall have judgement super totam materiam according to the judgement in Francis Case Coo. 8. for their the declaration stood good though the Plantiff had not cause of action in the same manner yet because it appeared he had cause of action he shall have judgement Weaver against Best VVEaver against Best in debt for 48. s. in the debet and detinet and for 2. shirts in the detinet only and he declared that the Defendant such a year retained the Plantiff to be his servant in husbandry giving him 48. s. and a shirt by the year and he shewed that he retained him for the next year and he averred that he served him and they were at issue upon nihil debet and the Plantiff had a verdict for him and it was now moved in arrest of judgement by Serjeant Brigman because he had not shewed that his retainer was according to the Statute of the 5th of Eliz. which Statute limitteth the form of there retainer and their wages and other things and he had not shewed the place where service was and also he had joyned two debts in one action one in the debet and detinet the other in the detinet only and Winch Iustice said that the Statute of the 5. Eliz. extends to such as are retained in husbandry and therefore other retainers are left as they were before the Statute at the Common law and this shall be intended to be a retainer according to the Statute if the contrary be not shewed by the other partie for his retainer was for a year and therefore it shall be intended that the wages was appointed by the Iustices and it was also said by the Court that if the justices of the peace in this kinde do neglect to set down the wages yet a servant may bring an Action upon his own contract also it was said that he needs not to shew the place where he served for if he did no service yet if he did not depart it is very good and for the other matter it was clear that he may bring his Action so by several precipes in one writ Thornes case IT was agreed clearly between Thorn and C. that where an obligation is made and the obligor and the obligee conferred about it and the obligor said to the obligee that he had forged this this is actionable for here it refers to a certainty but if he had said to the other thus he was a forger and had forged falsâ— writings no action will lie for the words are to general in that case also it was agreed clearly by the Court the Sheriff may not arrest a man upon a Capias after the time of the return of the writ Grasier against Wheeler Grasier as Executor brought an action of Covenant against Wheeler upon a lease made by the Testator rendring rent and this was made by I. S. and the Defendant covenanted that the lessee should pay the rent and the Plantiff assigned the breach in non-payment of 30. l. to the Testator such a day when it was due and for 10. l. due in his own time and the attorney of the Defendants as to the 10. l. pleaded non sum informatus and as to the other he pleaded that the Defendant paid to the Testator 7. l. in money and a horse in full satisfaction of all the said 30. l and that the Testator accepted that in full satisfaction and the Plantiff said that this was paid to the Testator for another debt absque hoc that he received that in satisfaction of the 30. l. and now Devenport argued that the issue was misjoyned for the issue ought to have been taken upon the payment and not upon the acceptance and he cited Pinnels case Coo. 5. where the payment in full satisfaction ought to be pleaded precisely and he said that he agreed to the case of Nichols Coo. 5. where the issue was joyned upon payment upon a single Bill and found that this was not paid and the Plantiff had judgement but if the issue had been found for the Defendant that had not been aided by the Statute for though it had been paid yet that was no bar Bridgman contrary and he said the difference is where the issue is joyned upon a matter alledged by the adverse partie and they are at issue upon a point which is not material that is aided by the Statute of the 18. Eliz. and where no issue at all is joyned there is not any help Winch Iustice said that this is an issue which will make an end of the matter And at another day this Tearm Serjeant Harvey moved the case again in arrest of judgement because the issue is joyned upon the acceptance which is not material and he cited Fowkes case depending in this Court debt upon an obligation and the Defendant pleaded the acceptance of another obligation in satisfaction which in verity is no bar and issue was taken upon that and it was doubted whether this being insufficient be aided by the Statute or not Bridgman Serjeant said to the contrary and he said as before that because the issue is taken upon the allegation of the Defendant if it is not good yet it is aided by the Statute of 32. H. 8. and Hutton said this is a full issue and as to the traverse said it is a material issue for he pleaded that he accepted them for another thing absque hoc that he accepted them in satisfaction of the 30. l. which is the most proper issue for he said it is clear that he may say that he accepted them for part c. and good and so here The Countess of Barkshire and Sir Peter Vanlore in Dower IT was agreed clearly in Dower between the Countess of Barkshire and Sir Peter Vanlore that if the Tenant plead never seised to have Dower and in verity the husband of the demandant had an estate but that was by disseisin which is avouched by the entrie of the deseissee who had a title paramont this is no title by which she may have Dower though they are at issue upon this plea and also it was agreed that if a man had a good estate by bargain and sale from him who had right to alien that and yet after he accepts a fine upon conusance of right as that c. from the other partie though in this case this be a conclusion to the parties between whom the fine was to denie that the land was of the gift of the Conusor and so that he was seised yet it is not any conclusion to the jurors to finde the verity of the matter in fact and that he had nothing of the gift of the Conusor also it was agreed in that case if a man held lands
have Dower because the feme is dowable of them for this sufficeth to say that he had assets generally 7. Ed. 2. Dower 184. out of which I conclude that this voucher is not like to other vouchers but this is onely to secure the estate of the Purchasers and then as to the president I answer first it was found there that the vouchee had nothing and also it was never debated for a writ of error was brought of that and nothing done for this was referred to Arbitrement and so I pray that no writ of seisin may be awarded and the Court semed to be of opinion that the judgement may be conditional chiefly Hobert and Iones vehemently but now they said because that judgement is once given they are not to reverse their own judgements and to give another judgement and now it is as if he had no assets but yet that doth not aide an erroneous judgement given before and therefore if the Tenant will be relieved he ought to bring his writ of error but it was said that if this judgement was to be given again this was as it should be because that is all one now as if he had not assets and the judgement stood as it was Potter against Brown NOw the case of Potter and Brown was moved again and Hendon took two exceptions as before first for default of averment and secondly the words are not actionable for it was adjudged in Lanes case if one say of another that he is as arrant a Thief â—s any is in the Goal of Warwick this is not good without averment that there are Thieves in Warwick Goal and here it shall be so for the law doth not suppose that there are Thieves in England and besides here in this case the subsequent words do qualifie the other for the words under the for ought to be of such a thing as is Theft and that is not so in our case Serjeant Richardson to the contrary the last words do not qualifie but rather aggravate them for he gives a reason of his speach and this taking is to be understood with a fellonious intent for the first words do charge him to be a Thief and therefore the last words shall be intended that he took them with a fellonious intent for he did not only charge him in the general but in particular but the Court c. Hobert Hutton and Winch said that the Plantiff shall not have judgement because he failes of averment for he did not say expresly that he is a Thief but as arrant a Thief as any is in England and we are not to enquire after words except they are plain for if one say he was in Warwick Goal for stealing of a Horse adjudged not to be actionable and we may not presume that there are Thiefes in England and so judgement was arrested Adams against Ward INtra Trin. 21. Iac. Rot. 1845. note that it was said in an action upon the case between one Adams and Ward an Attorney that whereas one Hennings sued Adams in an action of debt and Adams retained Ward to be his Attorney and gave him warrant to plead the general issue and Ward suffered the judgement by nihil dicit that this was not any cause of an action except it was by Covin and for that if Adams had not laid in his declaration that this was by Covin he should not have recovered and at another day it was agreed that the Covin was not traversable by Plea but only in evidence at the Bar. Cook against Cook in Dower IN a writ of Dower between Cook and Cook they were at issue and at the day of nisi prius the Defendant pleaded that the demandant had entred and was seised and yet is seised since the last contrivance c. Octabis Sancti Hillarii ultimo quo die continetur usque ad hunc diem c. vicesimum diem Februariâ— which in verity was the day of the nisi prius and it was demurred upon this Plea for two causes the first was because he had not shewed that the Tenant was disseised for otherwise it shall not abate the action and to say that the demandant was seised was not sufficient for though this implies so much that the other was disseised yet here it ought to be expresly alledged but the Court spake nothing to this but Winch thought this to be very good according to Dyer 76. there the entrie is pleaded only and yet good but they resolved that the pleading of the continuance is not good for it is from one Term to another nisi prius justiciarii Venerint c. and he ought to have precisely shewed that but the question now was whether the demandant shall have judgement to have seisin or have apetite Cape only and Iustice Hutton said that it was adjudged in Sir Henry Browns case that if a man pleaded an insufficient Plea after the last continuance there the Plantiff shall have judgement as if the first issue had been tried for him and for this he cited the new book of entries fo 57â— and this may not be a judgement by default for they both appeared and therefore he shall have the same judgement as if the first issue had been tried for him and it was said in this case though the Defendant did demur generally yet this is very good The residue of Trinity Term in the 22. year of King James GOdsel an Attorney brought an action upon the case for words and he laid in his declaration that the Defendant spoke those words among other Master Godsel is a knave for he forged false deeds for which he was imprisoned at York and should have lost his ears and the jury found only these words Godsel is a forger of writings and deserves to lose his ears and Hendon moved in arrest of judgement that the words which are found are not the words in the declaration for the words were there that he forged deeds and it is only found to be writings and it was adjudged in this Court between Brown and Ellis that for saying an Attorney had forged writings no Action will lie for they are too general and besides it doth not at all appertain to him to make writings and so for Nowels Case he is Cooped up for forging of writings and it was adjudged not to be actionable and so to say he is a forger of writings by which he had cozned fatherless Children the words are not actionable because he did not say Deeds and upon this motion and reason the judgement in this case was arrested This case is Entred Hillarie the 21. Jac. Roll. 550. Sir George Trenchard against Peter Hoskins TRenchard brought an Action of Covenant against Peter Hoskins and declared upon an indenture bearing date the 19th of September 44. of Eliz. made between Iohn Hoskins father of the Defendant and the Defendant on the one part and the Plantiff on the other parte by which they bargained and sold certain lands to the