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
and died by whose death the Church became void the which was the first and the next avoydance after the grant and Harcourt presented Cardon and that the said Arthur Basset so being seised in fee 18. Octobris 17. Eliz. by his will in writing devised to Iohn Basset his son the first and next avoydance of the Church aforesaid which first and next avoydance hapned after the death of the said Arthur Basset and that the said Iohn Basset was possessed of the said next avoydance and the said Chardon being incumbent 29. of September 37. Eliz. he was elected Bishop of Down in Ireland and he being so Elect the Queen by her letters 37. of her Raign considering the smalness of the said Bishoprick that it was not able to maintain him in his episcopal dignitie ex gratia sua speciali concessit Lycensavit et potestatem dedit to the said Chardon Bishop elect that he with the said Bishoprick the rectory of Tedbome in comendum ad huc recepire et fructus de c. in usus suos convertere disponere et applicare valeat et possit habendum that in Comendam for 6. years and within the 6. years he was consecrated and after the Term of the 6. years the Church became void per legis Anglie and that the Queen by her prerogative presented one Bee who was admitted instituted and inducted and the Plantiff conveyed from Iohn Basset his title by his grant of the next avoydance and shewed that the said Church became void by the death of Gee and that the vacation by the death of Gee is the next avoydance after the death of Arthur Basset by reason whereof the Plantiff presented and was disturbed and upon his decla ration Edwards the patron demurred and the Bishop claimed nothing but as ordinary and Manering pleaded and confessed the seisin of Arthur Basset and the grant to Manwood and the presentation by Harcourt of Chardon and the devise to Iohn Basset but he shewed that after the death of Arthur Basset the Acre to which the advowson is appendant descended to Thomas Basset as c. and he being so seised the Church became void by the death of Chardon who had the next avoydance after the death of Arthur Basset and that this remained void by 2. years after his death by which the Queen presented by Lapse the said Gee who was admitted c. and Thomas Basset conveyed that to Edwards and that became void by the death of Gee and that he presented the said Mannering c. absque hoc quod praedicta vacatio Ecclesiae praedictae post Mortem de Gee was the first and next avoydance after the death of Arthur Basset as the Plantiff had alleadged and upon this bar the Plantiff demurred and it was argued by the Councel of both sides on several dayes and in Michaelmas Term ensuing it was argued by the Court but because that Harvey was newly made Iustice he did not argue the case but Iustice Hutton began The argument of Justice Hutton ANd Iustice Hutton after a recital of the case said that his opinion was that the Plantiff should be barred and in the first place it is to be considered whether the King had any title at all to present by the Creation of Chardon to be Bishop Secondly admit that he had title whether he had dispensed with that and by his dispensation he had satisfied his prerogative Thirdly admit that the King had title and that this was not satisfied with the Commendam whether the grantee had lost his turn and as to the first point it ought to be agreed that when a parson is made a Bishop that he is discharged of the Church by the Common Law and so is the 45. Edw. 3. 5. and Dyer 159. petit Broo. 116. and this is an avoydance by Cession and for any thing that I see in our books the King had not any title to present except that he himself was patâ—on but because that did not happen fully in question here I will not deliver any opinion but I will say what our antient books do lay 41. Edw. 35. adjudged that the King shall not present to a prebendary where the prebend was made Bishop and the tithe which the King had to present was by reason that the temporalities of the Bishoprick of which he was prebend was in his hands and see the 7. H. 4. 25. a good case 11. H. 4. 37. Dyer 228. and for Brooks presentation 61. that is but the report of the Chancellor who had that in presentation but our Common Law doth not warrant any such thing and then for the second point whether the King had dispenced with his prerogative and in the first place we are to know that these Commendams were at the first but to see the cure served and by the opinion of Pollard the ordinary is to see the cure served though that be charged with such rents that none would have it and for that Commendams were at the first good but now if the King had title then that began per the consecration otherwise he shall never have it and so is 41. Edw. 3. 5. if consecration doth not give that he shall never have it and hereby his grant to hold that in Commendam he had dispenced with this prerogative and if this had been granted to him for his life none will deny but that he had dispenced with his prerogative and shall never take advantage of that again afterwards and no more in this case for he is incumbent to all intents and purposes for Fitz N B. 36. he may have a Spoliation and yet in this case he is parson and Bishop and now that the King may dispence with that it is not to be doubted and I will compare that with the like cases A. 6. Eliz. Dyer 252. where the King granted the Custody of the land and heir of his Tenant if he died his heir being within age and this grant was to Cantrel and it was agreed to be good and Wardship is as Royal an antient perrogative as any appertains to the Crown and 3. H. 6. title grant 61. the King may grant the temporalities of the Bishoprick before it is void which in my opinion is Cosen German to our case out of which book I conclude the King may dispence and by the dispensation he is full parson and this is for his life for the King may not make him incumbent except it be for life like to the case of Dyer fo 52. where the patron and the ordinary made a confirmation of a lease for part of the time which was made by the parson and agreed that this shall stretch to the whole time and no better case may be put then the case of Packhurst in Dyer 22. 8. where Packhurst was incumbent of the Church of Cleave and was made Bishop of Norwich but before he was created Bishop he had a dispensation from the Arch-Bishop to retain that in Commendam for 3.
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
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
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
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
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
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
simple shall alwayes be supposed to have continuance if the contrary is not shewed to that he answered that is not so for the book of the 7. H. 7. 8. if in barre of assise the Tenant said that I. S. was seised and gave this is not good because he had not shewed quod fit seisitus existens dedit c. which being in a plea in barre is more strong then in a declaration to prove that a fee shall not be intended to have continuance without an express allegation and so he concluded that the declaration is naught but by Hobert Winch and Hutton it is very good notwithstanding this objection and Winch cited the 13. Eliz. in Ejectione firme where the life of the person was not cleerly alleadged but the declaration only was that the lessor was and yet is seised which was a sufficient averment of the life of the person and so the declaration is good and another exception was taken to the declaration by Hitcham Serjeant because that the Plantiff had declared that the Defendant had made conney borroughs and with the aforesaid conneys had eat up the grass where he had not alleadged any storeing of the coney borroughs before with coneys and then it is impossible they should eat up the grass to the prejudice of the Plantiff but to this it was answered by Serjeant Attoe that though the declaration as to that is naught yet the diging of the coney borroughs is to his prejudice and sufficient to maintaine the action which the Court granted and as to the matter in law Attoe argued for the Plantiff and recited the case to be that E. 3. granted to the Deane and Chapter of Windsor that they shall have free warren in the lands which yet they had not purchased and of which they were not seised at the time whether this is a good grant and shall extend to take effect after the purchase see Buckleys case and be argued that it is not a good grant and he put a difference between a warren and other priviledges which are flowers of the Crown which may be granted infuturo but a warren never was a flower of the Crown and for that reason a grant de bonis et cattallis fellon et fugitivorum may be granted and yet not be in esse at the time of the grant for it is a flower of the Crown and it is said 44. E. 3. 12. that the King may not grant a warren in other mens lands but only in the land of the grantee and upon this he concluded that this grant shall not extend to land after purchased and the rather because it is in the nature of a licence which shall be taken strictly see 21. H. 7. 1. 6. And Hobert chief Iustice said that this word demeans is derived of the French words en son manies and though the Lord of the mannor had the waste in his hands yet he had not the common and as to the confirmation by Ed. 4. they all agreed that this will confirm nothing to him but what was granted by E. 3. himself and then as to the licence pleaded that is of no effect for first the licence is pleaded to be made to one Sir Cha. Haydon and the Defendant did claime under him and this licence was made by the father which will not binde the son who had the land to which the common is appendant after the death of his father for a common may not be extinguished without deed and Hobert and all the Court agreed that the licence of the father will not binde the son and by the Court if nothing is shewed to the contrary within a week judgement shall be given for the Plantiff Davies against Turner DAvies brought a replevin against Turner and he declared of the taking in a place called the Holmes and the Defendant made conusance as bayliff to Sir George Bing for that one Clap held certain land of him by 20. s. rent and suite of Court and for the rent he avowed and alleadged seisin by the hands of Clap the Plantiff said that Chap held 40. acres of land by 9. s. rent fealty and suite of Court absque hoc that he held modo et forma and upon this it was demurred and the single point was this in auowry the Tenant alleadged c. and the question is whether he ought to traverse the tenure or the seisin and it was argued by Henden Serjeant that he ought to traverse the seisin and that the traverse of the tenure is not good and besides here is double matter for the conclusion sounds in barre of the avowry and in abatement of the avowry see a good case 18. H. 6. 6. for the falsness of the quantity of the land and the falsness of the quantity of rent the on goes in barre the other in abatement of the avowry 47. E. 3. 79. 5. H. 6. 4. and affirmed for good law And as to the second point he held the seisin to be traversable and not the tenure and first he said there was a difference between pleading in barre of avowry and in the abatement of the avowry for in barre of the avowry there the seisin is is not traversable by Frowick 21. H. 7. 73. which opinion he held for good law for it is agreed in Bucknels case Co. 9. he may not say that he held of a stranger absque hoc that the avowant was seised but otherwise it is when that goes in abatement of the avowry Secondly he said that the seisin is the principal thing and the principal thing ought to be traversed for if a man had seisin of many services seisin shall never be ayded till the Stat. of magna charta see Bucknels case Cook 9. and here the seisin is the most meterial thing and the most proper see 37. H. 6. Bro. Avowry 76. ne tiendra is no plea for a stranger to the avowry but he ought to answer to the seisin Thirdly the cause for which the seisin is traversable see a notable case per Danby 7. E. 4. 29. for the beginning of the services may be time beyond memory c. and for that reason may not be tried see 20. E. 4. 17. 22. H. 6. 3. 26. H. 6. 25. by Newton he may traverse the tenure Attoe contrary 13. H. 7. 25. to this it was answered that the number Rolle may not be found 5. H. 7. 4. 13. H. 6. 21. 21. H. 7. 22. by Frowick and Kingsmil Harvey to the contrary the case was that the Defendant made conusance as Bayliff to Sir George Bing for this that Chap held a messuage c. by certain rent and by suite of Court and the other said that he held 40. acres by 9. s. and suite of Court absque hoc that he held the messuage and the land modo et forma and he argued that it was a good traverse of the tenure and not double which was granted by Hobert and by Winch being only present and Hobert said true
seisin of the homage and therefore perchance it will be hard to finde my antient president they adjourned and at another day Hutton and Winch being only present judgement was given for the avowant against Whitgift and Hutton said that he had spoke with the other Iustices and they agreed Vpon a motion made by Towse the case was this a man made a lease for one year and so from year to year during the Will of the lessor and lessee rendring rent and the lessee died and the rent was behinde and by Winch being only present if the rent is behinde in the time of the lessee and he dies an action of debt is maintainable against his Executor in the detinâ—t only and so I conceive if that was behinde after his death he may have an action in the debt and the detinet or in the detinet only to which Brownlow agreed Secondly Winch said that when a man made a lease for a year and so from year to year at the pleasure of the parties that this is a lease for 3. years and not for two Thirdly he doubted if the lessee hold over his term so that he is tenant at sufferance what remedy the lessor had for his rent Vpon the reading of a record the case was that a Scire facias issued against the land Tenant to have execution of a judgement given against Ferdinando Earl of Darby in the 15. Eliz. and the Defendant pleaded that a long time before the said Ferdinando any thing had in the land one Edward Earl of Darby was seised of the land and being so seised 3. Mar. infeoffed I. S. to the use of the Lord Strange and his wife in tail the remainder over to the said Ferdinando and made the said Ferdinando heire to the estate taâ—le and pretended that by this meanes the land should not be liable to this judgement because it was intailed to Ferdinando and of such estate he died seised the Plantiff traversed the feofment made by Edw. Earl of Darby and the jury found that the feofment was made by Edward Earl of Darby to the same persons as the Defendant had pleaded but this was to the use of the feoffor for life the remainder over to the Lord Strange and his wife the remainder as before and whether this shall be intended the same Feofment which the Defendant had pleaded was the question because the estate for life was omitted and upon the special verdict that was the question and Attoe said that if the jury had found this feofment made to other feoffees though the estate had agreed this should be found against the Defendant and Winch Iustice said that there was such estate found as had taken away the execution or extent and the estate for life is not material but it was adjourned till another day A man Covenanted to make such assurance as shall be devised by the counsel of the Plantiff so the same assurance be made within the county of Norff. or the Citty of Norwich and the Plantiff assigned the breach and shewed that in this case his Councel devised that a fine should be leavied of the same land which was not done and it was moved by Serjeant Attoe that in this case the breach was not well laid because he had not shewed where his councel devised that the fine should be leavied In the case of a prohibition in case of a libel in the Ecclesiastical Court for the tithes of Cattles the Plantiff alleadged that those Cattle of which Tithes were demanded are for his Dairy and for the plough and Winch being only present said that the parson shall not have Tithes of such Cattle but if he bred up Cattle to sell it is otherwise secondly the Plantiff in the prohibition alleadged that time beyond memory the parishoners had paid a half peny for the Tithe of a Calf and a penny for a Cow and that upon a day limitted they use to bring this to the Church and to pay this to the Vicar and now the Vicar had libelled in the spiritual Court against them to compel them to bring it home to his house and Winch said that this is no occasion of a prohibition for they agree in the modus but vary in the place of payment and this is not matter of substance and for that reason no prohibition will lie Vpon the reading of a record the case was that the father made a feofment to the use of himself for life the remainder to his son and his wife and to the heires of the body of the son and this was for a joynture for his wife and the father died and the son also died and whether this was a good joynture was the question for all this matter was pleaded in barre of dower brought by the wife and it was ruled to be no good joynture for the feme notwithstanding that the father died in the life of his son and Hutton said if a man made a feofment to the use of himself for life the remainder to his Executors for years the remainder to his wife for a joynture this will be no good joynture within the Statute of joyntures though the feme here had the immediate franktenement In an action of debt against an Administrator who pleads outlawry in the Testator and it was moved that this was no plea for he had taken the Administration upon him Winch a man who is outlawed may not make an executor for if he meet with his goods he shall answer for them to the King and for that reason it seems to be a good plea 3. H. 6. 32. and Brownlow chief Prothonotary said that he could shew a president 27. Eliz. where this is adjudged to be no plea and Iustice Winch said to him shew that president if any such be and upon Tuesday after he shewed that and then Winch agreed Auditor Curle for words AUditor Curle brought an action upon the case and in his declaration he set forth the Statute of 32. H. 8. for the erection of the Court of Wards and that the same Statute appointed the Auditor of the same Court and shewed that the Plantiff was an Auditor of the same Court and that the Defendant such a day and at such a place said of him you have taken money for ingrossing of feodaries innuendo accompts and tunc et ibidem you are a Cozner and live by Cozning and I will prove that to be Coznage and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Finch Serjeant of the King that the Plantiff shall not have judgement upon this verdict for the first words are not actionable for the taking of money for the ingrossing of feodaries are insensible and then the inuendo will not help nor aid that also the words in the second place are not actionable because he had not said that he was a Cozning officer and so he had not expresly applied that to his office and
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
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
years then this is void by resignation and so is the case of Packhurst that when he resignes during the years of the Commendam the Patron shall have that and not the King and so also my opinion is clear that if he had died within the 6. years limitted by the Commendam that the King shall not have that for then it is void by death and not by the assumption of the Bishoprick which book proves directly that a Commendam may be aswel for years as for life but yet I do not hold that upon those temporary Commendams if the Bishop continued Parson during the years and made no Act to impeach that then is a void cause S. the assumption of the Bishoprick and then when that is determined the supension is determined and it is void by the original cause S. by the assumption of the Bishoprick and this Commendam doth not turn the second or first Patron to any prejudice for the incumbent is still in by the presentation of the Patron and the determination of the Commendam is not any cause of the avoidance of the benefice but this is quasi non causa which is causa stolida as the Logicians do term it but in this case the assumption is the cause of the Cession and it is like to the case of 25. Ed. 3. 47. where the King brought a quare Impedit against the Arch-Bishop of York for a Prebendary vide the case and ruled in that case that the confirmation of the King had not taken away his title to present and the reason was because the confirmation had not filled the Church but continued that full which was full before and here this temporarie Commendam may not restrain the King to present afterwards for this is not a presentation and therefore may not take away the title of the King and here the Plantiff hath not well expressed it for he hath not shewed in this Court that the presentation of the King was lawful neither that Chardon held that by vertue of the Commendam for all the 6. years but only that the Church became void by the Laws of England and that is not sufficient and then if all before were for the Plantiff yet the question is whether he hath lost his turn and I think that he hath omnis argumentatio est à notoribus and the first is better known then the second and the second may not be the first and there when the devise gave him the first it is idle to say that he shall have the second for that departs from the meaning of the words and in every grant the law implies quantum in se est and no man may say that the devisor did intend to warrant that from antient Titles and so the Lord Hobert concluded his argument and said his opinion was that the Plantiff shall be barred and judgement was commanded to be entred accordingly Mich. 22. Jac. C.P. Michaelmas Term in the two and twentieth year of King James in the Common Pleas. DAvenport moved for the amendment of a Record where a recovery was suffered of lands in Sutton in the Countie of York and the indenture of bargain and sale was by the right name and the indenture of uses by the right name but the writ of entrie was of the Mannor of Sulton and upon the examination of the parties to be recovery that the recovery was to no other uses then is expressed and mentioned in the said indenture this was to be amended Sheis against Sir Francis Glover SHeis brought an action upon the case against Sir Francis Glover and shewed for the ground of his action that where one Harcourt was bound to the Plantiff in a Recognizance c. upon which the Plantiff took forth an elegit and the Defendant being the Sheriff of the Countie took an inquisition upon that upon which it was extended but he refused to deliver this to the Plantiff but yet he returned that he had delivered that and upon that he brought his Action and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Serjeant Hendon and the reason he shewed was because he laid his action in an improper Countie for though the return was in Middlesex where the Action was brought yet because the land lies in Oxfordshire where the seisin ought to be delivered the place is Local and for that the Action ought to be brought there and now Serjeant Breamston argued that the Action was well brought in Middlesex for this being but a personal thing he may bring that in either of the Counties as 14. Ed. 4. 13. Ed. 4. 19. expresly in the point and to the second objection that had been made that an Averment may not be against the return of the Sheriff to that Breamston answered that in an other Action an Averment may be against the return of the Sheriff though not in the same Action as 5. Ed. 4. but it was agreed to have a new trial by the preservation of the Iustices for otherwise it seemed the opinion of the Court was that the Plantiff shall have judgement upon the reasons urged by Serjeant Breamston Mary Baker against Robert Baker an Infant in Dower MAry Baker brought a writ of Dower against Robert Baker an Infant who did appear by his Gardian and he pleaded that his father who was husband of the demandant was seised of a Messuage and of land in Socage and devised that to the demandant for her joynture in full satisfaction of all Dower and he shewed that after the death of his father the demandant did enter into the said Messuage and land and was seised of that by vertue of the devise and to that the demandant did replie by protestation that he did not devise and for plea confessed the seisin of the husband and her own entrie but she further shewed that the Infant who was then Tenant was but of the age of 14. years and that she entred as Gardian in Socage to the Infant and disagreed to accept of that by vertue of the devise and traversed the entire and the agreement and it was said by the Court that his bar is good though it had been more pregnant to have alledged that she entred virtute legationis praedictae and so was seised and after it was said that the Replication was very good without the traverse for this was not expresly set down but that was but meerly the consequence of the plea which in veritie was not traversable Hickman against Sir William Fish HIckman had judgement for 600. l. and 10. l. damages against Sir William Fish and he acknowledged satisfaction for 410. l. of the said debt and damages and after there was an agreement between them that if Sir William did not pay the residue by such a day that then it should be lawful for Hickman to take out execution against the said Fish without suing of any scire facias though it was after
recovery here the Term is saved and yet for the time the lessee was seised to his own use but because that the fine was Preparatory to inable him to suffer the recovery now in this case after the recovery suffered that will look back to the first agreement of the parties and so the Statute hath saved the Term and for that reason if the Statute do save a Term which is of small account much more a freehold and so he prayed judgement for the defendant see more after The case of Hilliard and of Sanders entred Mich. 20. Jac. Rot. 1791. HIlliard brought a replevin against Michael Sanders for the taking of Beasts in a place called Kingsbury and the Defendant avowed and shewed that Sir Ambrose Cave was seised in his demeasne as of fee of Kingsbury where the place in which c. is parcel and 14. Feb. 16. Eliz. granted a rent charge of 42. l. 8. s. 4. d. to one Thomas Bracebridg and to the heirs of Thomas upon Alice to be ingendred the remainder to the right heirs of Thomas and Thomas had issue John and Thomas died and then Iohn his son died having issue Anne the wife of the Avowant in whose right he avowed for the rent of half a year c. 21. l. 4. s. 2. d. due at W. in Bar of which avowrie the Plantiff pleaded that true it is that Sir Ambrose Cave was seised of the Mannor c. and he made the grant according and that Sir Ambrose Cave died seised and that the said Mannor descended to Mary his daughter as daughter and heir to him who was married to one Mr. Henry Knowles and shewed that he was seised and then shewed that the 12. Iac. it was agreed between the said Sir Thomas Bracebridg and Alice his wife Mich. 22. Jac. C. P. and the said Henry Knowles and mary his wife that for the extinguishment and final determination of the said rent that Thomas and Alice should levie a fine to Henry and Mary of the said lands and Tenements aforesaid by the name of the Maniior of Kingsbury 300. Acres of land and of divers other things but no mention was made of the rent and this fine was upon Conusance of right as that which they had c. and also they released all the right which they had in the land to Henry and to Mary and then shewed that after the death of Mary this land descended to two daughters one being now married to the Lord Willoughby the other to the Lord Paget under whom the Plantiff claimed to which the avowant said by protestation that there was no such agreement and for plea that the rent was not comprised and upon that it was demurred in Law and now Serjeant Attoe this Term argued for the Plantiff and the substance of his argument was in this manner Attoe said the case was Tenant in tail of a rent charge agreed with the Tenant of the land to extinguish that and that he would levie a fine of the land to the land Tenant which is upon Conusance of right and upon release which fine is levied accordingly whether this cuts off the tail of the rent and I hold that it will and I do not finde any opinion in all the Law against this but only the opinion of Thornton in Smith and in Stapletons case in Plowden which I do not esteem to be a binding authoritie and the case is Tenant in tail of a rent disseised the land Tenant and levied a fine with proclamation of the same fine to a stranger now said Thornton this shall not bar the issue in tail of the rent because the fine was only levied of the land and he cited this to prove another case which is Tenant in tail of land accepted a fine of a stranger as that which he had c. and he rendered to him a rent and he said that his issue may avoid that rent and this case I grant because the rent was not intailed but for the other case I openly denie that and there is much difference between those two cases for a fine levied of the land may include the rent as well as the land but it is impossible that a fine of rent should include the land and our case here is pleaded to be of the land and of the rent and a fine of the land may carry the rent inclusively because it is a fine of a thing intailed yea it is not a new thing that rent should be carried inclusively by way of extinguishment in the case of a feofment and then á fortiori in a fine which is a feofment upon Record and especially when it is levied on purpose to extinguish the rent and the Statute of fines is more strong for that is of any lands Tenements and hereditaments any wayes intailed to any person c. but this rent is an hereditament intailed to the person who levied the fine and this which is carried inclusively is within the Statute nay if a man had nothing in the land yet if it was intailed to him who levied the fine this shall bar the estate tail for ever as if Tenant in tail made a feofment to G. S. and after that he did levie a fine to a stranger of the same land that in this case the issue shall never avoid this and yet neither the Conusor nor the Conusee had any thing in the land and see for Archers case Cook 3. where the issue in tail levied a fine in the life of his ancestor and a good bar and yet there he had but a possibilitie and so was the case of Mark-williams Mich. 19. Jac. Rot. 763. C. B. where all the distinctions were made for Henry Mark-williams was heir apparant to his Mother who was Tenant in tail and he levied a fine in the life of his Mother and died without issue and then his Mother died and it was ruled that this did not bar the sister heirs because she may have that and never make mention of her brother but in our case if the rent had been granted in fee it had been no question but that a meer release will extinguish that and I think a fine with proclamation is as forcible to extinguish a rent which is intailed as a release is for a rent in fee another reason is this is a fine directly of the rent though this is by the name of land and also this is upon Conusance of right c. and also in that he released and remised to the Conusees all his right in the said land but a case out of Bendloes Reports may be objected Tenant in tail accepted a fine of the land and rendred that for life ruled the issue is not barred but first I do not allow this case to be good law but if it be good law the reason is because he accepted only a fine of the land and for that it only extends to that and not to the rent as if a man is seised
ought to maintain the award but to shew the breach for it shall be otherwise if it be found against him and then Hendon answered to the other exception that this is not for direct usury but is rather for the damage which he sustained by the forbearance of the money and yet if it were for interest it is good and then as to that which now had been agreed by my brother Bridgman that contracts and obligations for usury are good I say then by the same reason an award for that is good for whatsoever a man may contract for the same thing may be awarded if the contract will bear that and usury is not malum in se but only malum prohibitum and is good by our law and here in this case though the Arbitrator was deceived in the summe yet after the award made it is altogether certain and an implied recompence is sufficient in this case but the Court said that the casting up of the accompts did not make an award for it is not a good Calculation but the ending of the controversies that doth make the award but yet the opinion of the Court in this case was that the award was good for an Arbitrement shall not be taken absolutely upon the bare words and the Court did command the parties to come before them upon the morrow in the Treasury and as it seems this was for mediation to make an agreement for the opinion seemed to be for the Plantiff The case of Hilliard and Sanders argued by the Court. IUstice Harvey this Term did argue the case of Hilliard and Sanders which see before and after a brief recital of the case he said that his opinion was that the avowant shall not have return because that by the fine of the lands the rent is extract and I am induced to be of this opinion by two things the first is the agreement and tâ—e other is the favourable exposition of the Statute of fines to settle repose and quiet and I will first shew the efficacie of fines at the common law 21. Ed. 4. the Pryor of Binghams case it is laid for a ground and rule in law if a thing be contained in a fine either expresly or implicitly this is very good and so is 44. Ed. 3. 22. 37. H. 6. 5. for a fine is no more then an agreement and therefore it is called in latin Concordia and then see if by any words you may pass this rent by the fine and though the word rent is not there yet if it be so infolded in the lands that is good with that it is very good and for that 3. H. 7. 16. 17. 21. H. 7. proves that by a feofment of the land the rent doth pass and wherefore not by fine then and this shall be within the Statute of 4. H. 7. and 32. H. 8. and a case may be out of the Statute of 32. H. 8. and yet be within the Statute of the 4. H. 7. as the 2. Ed. 3. in Dyer though the feme after the death of the husband she may enter upon the discontinues of the husband yet if she do not within 5 years she shall be barred and now you see that the construction of these Statutes was alwayes to settle repose and quietness for if such a construction should be made according to the opinion of Chornton in Smith and Stapletons case then it will be mischievous and for his opinion it was only in the way of arguing and yet I conceive he had the good opinion of the Reporter and without all question it is a case of as hard a construction as that is of Archers case where the heir who nothing had in the land in the life of his father did levie a fine this is a bar for ever and the reason is because it is of a thing which is intailed and he cited a case in Bendloes Reports where a discontinuee was disseised by Tenant in tail who levied a fine and the discontinuee entred and then proclamations passed that in this case the issue was barred truly I do agree the case of 36. H. 8. that that a fine levied of land did not bar him who had title of Common or a way the reason is because there is no privitie but in our case there is a privitie and by Margaret Podgers case a Coppiholder is within this Statute and in our case the rent passeth especially in regard of the agreement as in the Lord Cromwels case and he cited a case primo Jacobi between Gage and Selby in an ejectione firme where Gage was Tenant in tail and he levied a fine to I. S. in fee and after he levied another fine to the use of himself for life the remainder over and his brother brought a writ of error to reverse the first fine and ruled that he may not for the second fine had barred him of any writ of error and so I conclude the fine had extinguished the rent The argument of Justice Hutton to the contrary HUtton contrary the fine had not barred the rent in which I will consider the nature of fines at the Common Law and they were of mightie and great esteem and force as appears by the great solemnitie which is used in them as is prescribed in the Statute of fines 18. Ed. 1. de modo Levandi fines and he agreed that such a fine by Tenant in fee simple will pass that inclusively for by the release of all his right in the land a Signiorie is gone I agree also that a fine is but an agreement but yet it must work according to the nature of the thing as upon a writ of Measne or of right of advowson a fine may be levied and yet it is not levied of the lands but of the advowson or Signiorie and so if the writ of covenant be one thing and the agreement of another thing then it is not good and first I will prove that at the Common law fines have been rejected when the writ of covenant did not contain the thing of which the fine is to be be levied and if at the Common law a fine was levied of rent there ought to be a writ of covenant of that 18. Ed. 2. fines 123. and there the rule is given that it is against reason to hold covenant of that which never was and the rent there never was before but ought to begin then and yet it is clear a man may create a rent by fine but he shall not have a writ of covenant of that when it was not in esse before and because the concord may not varie from that therefore it was not received 38. Ed. 3. 17. Knevet put the rule that a fine may not be of more then is in the writ of covenant and when a fine is properly levied of that it is by way of release Fitz. fine 100. and so I conceive here the rent doth not pass Secondly here no man may plead that any fine is levied of
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
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