do so it is void And for that he cited Clegat and Batchellers Case before that the obligation in such Case is void and he said that the reason which was given by one why the Bond should be void was grounded upon the Statute of Magna Charta cap. 29. which wills That no freeman should be ousted of his Liberties but per legem terrae and he said that the word Liberties did extend to Trades and Reeve said that by the same reason you may restrain a man from using his Trade for a time you may restrain him for ever And he said that he was confident that you shall never find one Report against the Opinion of Hull 2 H. 5. For the other part of the difference he cited Hill 17 Iac. in this Court Rot. 1265. and 19 Iac. in the Kings Bench Braggs case in which Cases he said it was adjudged against the Action upon a Bond but with the Action of the Case upon a promise that it would lie But note that all the Judges viz. Foster Reeve and Crawley Bankes being absent held clearly that if the condition be against the Law that all is void and not the condition only as was objected by Evers and it was adjorned Apsly against Boys in the Common Pleas in a Scire facias to execute a Fine upon a Grant and Render Intrat Trin. 16 Car. Rot. 112. 239. THe Case upon the Pleading was this A fine upon a Grant and Render was levied in the time of E. 4. upon which afterwards a Scire facias was brought and Judgment given and a Writ of seisin awarded but not executed Afterwards a fine Sur coâ—usans de droit come ceo c. with Proclamations was levied and five years passed and now another Scire facias is brought to execute the first fine to which the fine Sur conusance de droit come ceo is pleaded so as the only Question is Whether the fine with Proclamations shall bar the Scire facias or not Serjeant Gotbold for the Plaintiff it shall not bar and his first reason was because not executed 1 Rep. 96 97. and 8 Rep. 100. If a disseisor at the Common Law before the Statute of Non-claim had levied a fine or suffered Judgment in a Writ of Right until Execution sued they were no bars and a fine at Common Law was of the same force as it is now and if in those Cases no bar at Common Law until Execution that proves that this interest by the fine upon grant and render is not such an interest as can bar another fine before execution Besides this Judgment by the Scire facias is a Judgment by Statute and Judgment cannot be voided but by error or attaint Further a Scire facias is not an Action within the Statute of 4 H. 7. and therefore cannot be a bar 41 E. 3. 13. 43 E. 3. 13. Execution upon Scire feci retorned without another plea and it is not like to a Judgment for there the party may enter but not here Besides it shall be no bar because it is executory only and in custodia legis and that which is committed to the custody of the Law the Law doth preserve it as it is said in the 1 Rep. 134. b. and he compared it to the Cases there put and a fine cannot fix upon a thing executory and the estate ought to be turned to a right to be bound by a fine as it is resolved in the 10 Rep. 96. a. 9 Rep. 106. a. Com. 373. And the estate of him by the first fine upon grant and render is not turned to a right by the second fine Lastly the Statute of 4 H. 7. is a general Law and in the affirmative and therefore shall not take away the Statute of West 2. which gives the Scire facias and in proof of that he cited 39 H. 6. 3. 11 Rep. 63. 68. and 33 H. 8. Dyer 15. I agree the Case which hath been adjudged that a fine will bar a Writ of Error but that is to reverse a Judgment which is executed but here the Judgment is not executed and therefore cannot be barred by the fine wherefore he prayed Judgment for the Plaintiff Note that it was said by the Judges that here is no avoiding of the finâ— but it shall stand in force but yet notwithstanding it may be barred and they all said that he who hath Judgment upon the Scire facias upon the first fine might have entred and they strongly inclined that the Scire facias is barred by the fine and doth not differ from the Case of a Writ of Error but they delivered no opinion Taylers Case 240. THe Case was thus The Issue in Tail brought a Formedon in Descend and the Defendant pleaded in Bar and confessed the Estate Tail but said that before the death of the Tenant in Tail I. S. was seised in fee of the lands in question and levied a fine to him and five years passed and then Tenant in Tail died whether this plea be a bar to the Plaintiff or not was the Question and it rested upon this Whether I. S. upon this general Plea shall be intended to be in by disseisin or by feoffment for if in by disseisin then he is barred if by feoffment not and the opinion of the whole Court was clear without any debate that he shall be intended in by disseisin and so the Plaintiff is Bar as the Books are 3 Rep. 87. a. Plow Com. Stowels Case and Bankes Chief Justice said that it shall not be intended that Tenant in Tail had made a feoffment to bar his issues unless it be shewed and it lies on the other part to shew it and a feoffment is as well an unlawful Act as a dissâ—isin for it is a discontinuance Commins against Massam in a Certiorare to remove the proceedings of the Commissioners of Sewers 241. THe Case upon the proceedings was thus Lessee for years of Lands within a level subject to be drowned by the Sea covenanted to pay all assessments charges and taxes towards or concerning the reparation of the premisses A wall which was in defence of this level and built straight by a sudden and inevitable Tempest was thrown down one within the level subject to be drowned did disburse all the mony for the building of a new wall and by the order of the Commissioners a new wall was built in the form of a Horshooe afterwards the Commissioners taxed every man within the level towards the repaying of the sum disbursed one of which was the lessee for years whom they also trusted for the collecting of all the mony and charge him totally for his land not levying any thing upon him in the reversion and also with all the damages viz. use for the mony Lessâ—e for years died the lease being within a short time of expiration his executor enters and they charge him with the whole and immediately after the years expired the executors brought this
made a Feoffment to the use of himself for life the remainder in tail to I. S. He in the remainder Levied a Fine And the Counsel of the Marches upon a surmise That the Tenant for life died seised according to their Instructions would settle the possession upon the heir of Tenant for life against the Conusee For their Instructions were made That where a man had the possession by the space of three years that the same should be settled upon him until trial at Law were had But the whole Court was against it because it doth appear that he had but an estate for life and so the possession appertained to him in the remainder And here it was said by Justice Barckley that their Opinion hath been That the possession of Tenant for life should be the possession of him in the Remainder as to this purpose Note that the Principal case here was although the Case before put was also agreed for Law thus Tenant in Tail levied a Fine to the use of himself for Life the remainder in Fee to I. S. and died In that Case the Council in the Marches would settle the possession upon the heir of Tenant in tail against the Purchaser who held in by the Fine which had bar'd the estate tail by which the Issue claimed and the whole Court was against it for which cause a Prohibition was granted 80. Habeas corpora was directed to the Porter of Ludlore to bring the bodies of Iohn Shielde and William Shielde into the Kings Bench the case shortly as appears upon the retorn was this Powell the Father brought a Bill in the nature of an Information against the said Iohn and William Shield before the Council of the Marches in Wales for an unlawful Practice Combination and Procurement of a clandestine Marriage in the night betwixt Mary Shield a Maid-servant and the Son of Powell who was a Gentleman of good credit and worth the Parson also being Drunk as he himself sware and the same also being without Banes or Licence for which offence they were severally Fined to the King and an hundred Marks damages given to the Plaintiff and farther ordered by the Council that they should be imprisoned till they paid their several fines to the King and damages to the Party and found Sureties to be bound in Recognisance for their good behaviour for one year and till they knew the farther Order of the Council and these were the causes which were retorned And upon this retorn Glynn who was of Counsel with the Prisoners moved many things and many of them as was conceived by the Court altogether impertinent But the Objections which were pertinent were these First That the Councel of the Marches as this case is have no Jurisdiction because the clandestine Marriage is a thing meerly Spiritual and therefore not within their instructions The second was That they have exceeded their Instructions in that they have given damages to the party above fifty pounds For by their Instructions they ought not to hold Plea where the Principal or Damages exceed fifty pounds But as to the first he said there may be this Objection That they did not punish them for the clandeâ—â—inâ— Marriagâ— which in truth is a thing meerly Spiritual but for the unlawful Practise and Combination and for the execution of it To which he answered That they have not Juristiction of the Principal and therefore not of the Accessory here note that it was afterwards said by Bramston Chief Justice That the unlawful Practise and Combination was the Principal and the clandestine Marriage but the Accessory which was not contradicted by any Farther it was objected by Glynn That they were Imprisoned for the damages of the Plaintiff and it doth not appear whether it was at the Prayer of the Party as he ought by the Law Bankes the Kings Atturny-General contrary And as to the first Their Instructions give them power to hold Plea of unlawful Practises and Assemblies And this is an unlawful Practise and Assembly and therefore within their Instructions And although that Heresie and clandestine Marriage and such offences per se are not within their Instructions yet being clad with such unlawful circumstances and practises they are punishable by them As to the second he said The Instruction which restraineth them that they do not hold Plea above fifty pounds is only in civil Actions at the several suit of the party But there is another Instruction which gives them power where the cause is criminal to assess damages according to the quality of the Offence and at their discretions As to the third Objection he said That the Retorn being that they were in execution for the damages it ought to be meant at the Prayer of the Party otherwise it could not be For which causes he prayed thâ—â— the Prisoners might be remanded And the whole Court Crooke being absent were clear upon this Retorn That they should be remanded because it appeareth that their Fines to the King were not payed And therefore although that the other matters had been adjudged for them yet they ought to be remanded for that one And as to the Objections which were made the Court agreed with Mr. Attorney except in the point of Damages and for the same reasons given by him But as to the point of the Damages whether they have gone beyond their Instructions and so exceeded their power in giving above fifty pounds damages or not It seemed to the Court they had and as it seemed to them if the Retorn had been That the Kings Fines were paid it would have been hard to maintain that the assessing above fifty pounds damages was not out of their Instructions but because the Kings Fines were not paid they were Remanded without respect had thereunto for the reasons given before 81. It was said by the Court That when Judgment is given in this Court against another and Execution upon it and the Sheriff levieth the mony the Lord Keeper cannot order that the mony shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it for notwithstanding such Order he may call for it And it was farther said by the Court That an Attachment shall not be granted against the High Sheriff for the contempt of his Bayliffs And a Writ of Error is a Supersedeas to an Execution but then there ought to be notice given to the Sheriff otherwise if he notwithstanding serve the Execution he shall not run in contempt for which an Attachment shall be granted 82. Serjeant Callis came into Court and moved this case Chapman against Chapman in Trespass done in Lands within the Dutchy of Cornwal which were Borough-English where the custome was that if there were an estate in Fee in those Lands that they should go to the younger Son according tthe custome but if in Tail the should descend to the Heir at Common Law And it was moved by him that the custom was not good because it cannot
therefore iâ— the King be deceived either in point of profit or in point of Title his Grant is void 9 H. 6. Where he is not deceived in point of profit he shall not avoid the Grant 26 H. 8. The second reason That a Deed ought to be construed Vt res magis valeat quam pereat 34 H. 6. A man having a Reversion deviseth his land in Manibus thereby the Reversion passeth 9 E 4. 42. Release of all Actions against Prior and Covent shall be construed and intended all Actions against the Prior only for an Action cannot be brought against the Covent Farther by this construction you would avoid this deed and by the Rule of Law the deed and words of every man shall be taken very strong against himself ut res magis valeat as is said before And it is against reason to conceive that it was the meaning of the parties that nothing should pass A third reason was because the grant was a distinct clause of it self And the words which were objected at the Bar to be restrictive were in another distinct clause and therefore shall not restrain that which was before for words restrictive ought to be continued in one and the same sentence Wherefore they having granted all their Tithes in Chesterton by one clause the false recital afterwards in another clause shall not make the grant void See 3 4 Eliz. Dyer in Wast 31 Eliz. the Lord Wenworths Case in the Exchequer upon this Rule of distinct clauses And Atkins and Longs case in the Common Pleas upon which cases Justice Iones did rely The fourth reason was That construction ought to be made upon the whole Deed And it appeareth by the context of the Deed That it was the meaning of the parties to grant the Tithes by the Deed. Further the Exception of the four things sheweth That it was the meaning of the parties to grant all things not excepted as the Tithes in this Case For exceptio firmat Regulam And to what purpose should the Exception be if they did not intend to pass all other things not excepted See 4 Car. Hâ—skins and Trâ—ncars Case Sir Robert Napwiths Case 21 Iac. cited by the chief Jâ—â—tice to that purpose Wherefore it was agreed by the whole Court that Judgment should be given for the Defendant And the Opinion of the Court was clear also That although some of the Tithes had been in the Tenure of Margaret Petâ—e that yet the grant was good And that was after Argument upon the Demurrer to avoid all scruples to be after made by Counsel because it was conceived That some of the Tithes were in her Tenure Crisp against Prat in Ejectione firme 67. THe Case upon the four Statutes of Bankrupts viz. 34 H. 8. 13 Eliz. 1 Iac. and 21 Iac. was thus Ralph Brisco 9 Iac. purchased Copyhold to him and his Son for their lives the Remainder to the Wife in Fee 11 Iac. he became an Inholder and about twelve years after a Commission of Bankrupt is obtained against him And thereupon the copyhold-Copyhold-land is sold by the Commissioners to the Defendant Ralph Brisco dieth and his Son Iohn Brisco entred and made the Lease to the Plaintiff The Defendant entred upon him and he brought an Ejectione firme And Judgment was given upon solemn argument by the Justices for the Plaintiff The first point was Whether an Inholder be a Bankrupt within these Statutes And it was resolved by all the Justices viz. Iones Crook Barckley and Bramstone chief Justice that an Inholder quatenus an Inholder is not within these Statutes Justice Barckley and Justice Iones one grounded upon the special Verdict the other upon the Statutes did conceive That an Inholder in some cases might be within these Statutes Justice Barckley did conceive upon this special Verdict that this Inholder was within them because it is â—ound That he got his living by buying and selling and using the Trade of an Inholder And he conceived upon these words Buying and selling in the verdict and getting his living thereby although that the Jury have also found him an Inholder that the same is within the Law And he agreed That he who liveth by buying or selling and not by both is not within the Law but in our case the Jury have found both And it hath been adjudged That he who buys and sells cattle and stocks his ground with them that he may be a Bankrupt within those Statutes I agree that a Scrivener was not within 13 Eliz. for he doth not live by buying and selling but by making use of the monies of other men but now he is within 21 Iac. But in our case the Inholder buys his grass hay and grains and provision also for his Guests and by selling of them he lives But he agreed That if the Jury had found that he was an Inholder only and not that he did get his living by buying and selling that in that case he was out of the Law And for these reasons he did conceive That this Inholder as by the special Verdict is found was within the Statutes of 13 Eliz. and 21 Iacobi Justice Iones An Inholder may be or not be within these Laws upon this difference That Inholder who gets his living meerly by buying and selling as many of the Inholders here in London do they are within these Statutes But those who have Lands of their own and have hay and grain and all their provisions of their own as many have in the Country those are not within the Statutes Farther he said That buying and selling doth not make men within these Statutes for then all men should be within the Statutes but they ought to be meant of them who gain the greatest part of their living thereby and live chiefly or absolutely thereby But Bramston chief Justice and Justice Crook were clear of Opinion that an Inholder could not be a Bankrupt neither by the Statutes nor according as it is found by the special Verdict And their reason was because that an Inholder doth not live by buying and selling for he doth not sell any thing but utter it He which sells any thing doth it by way of contract but an Inholder doth not contract with his Guests but provides for them and cannot take unreasonable rates as he who sells may and if he doth he may be Indicted of Extortion which the seller cannot Wherefore they concluded that an Inholder is not within the Statute of 13 Eliz. 1 Iac. Justice Crook remembred these Cases Webb an Inholder of Vxbridge brewed in his house and sold his Beer to his Guests And it was adjudged in the Exchequer that it was not within the Statute of Brewers And Bedells Case who being a Farmer bought and sold cattle and adjudged that he was not a Bankrupt within these Statutes And he put thâ—se cases upon this reason That where the Statutes said Get their living by buying and selling that it ought to bâ—â—or the greater part that they gain
the Actions brought by the other Creditors But Justice Bramston contrà That the damages were well assessed because that the Actions brought by the Creditors were added for aggravation only and the cause of the Action was the Arrest and Imprisonment like the case where a man speaks words which are in part actionable and others only put in for aggravation and damages is assessed for the whole it is good There was a third Error assigned That the Venire facias was de Warda omnium Sanctorum de Bristow without shewing in what Parish Childe against Greenhil 77. CHilde brought Trespass against Greenhill for Fishing in seperali piscaria of the Plaintiff and declared that the Defendant pisces ipsius cepit c. And Verdict found for the Plaintiff And it was moved by Saint-Iohn in Arrest of Judgement because the Plaintiff declared of taking of pisces suos whereas the Plaintiff they being ferae naturae hath not property in them Register 94 95. and F. N. B. and Book Entries 666. No count that the Defendant cepit pisces ipsiuâ— but ad valentiam c. without ipsius So Fines Case in Dyer 7 H. 6. 36. 10 H. 7. 6. 12 H. 8. 10. by Brudnell 13 E. 4. 24. 7 Rep. case of Swannes And the Book of 22 H. 6. 59. is over-ruled by the case of Swannes 34 H. 6. 24. And the same is matter of substance and therefore not helped after Verdict An Action of Trover and Conversion against husband and wife quia converterunt is not good and it is not helped after Verdict because it is matter of substance Rolls for the Defendant I agree that lepores suos or pisces suos without any more is not good But where he brings an Action of Trespass for taking them in his Soil there it is good because it is within his Soil So in our case for taking pisces suos in his several Piscary and with this difference agree 22 H. 6. 59. 43 E. 3. 24. so Regist. 93 102. 23 H. 6. tit Tresp 59. 14 H. 8. 1. and the Book of 43 E. 3. saith That in Trespass the Writ shall not say Damam suam if he do not say that it was taken in his Park or Warren or saith damam domitam or as the Book is in 22 H. 6. in my Soil or Land and by Newton he shall say there damas suis. And admit that it was not good yet I hold that it is helped after Verdict because it is not matter of Substance for whether they be pisces suos or not the Plaintiff shall recover damages Justice Barckly It is true that in a general sense they cannot be said pisces ipsius but in a particular sense they may and a man may have a special or qualified property in things which are ferae naturae three ways ratione infirmitatis ratione loci ratione privilegii and in our case the Plaintiff â—ath them by reason of Priviledge And it was agreed by the whole Court That Judgment should be affirmed upon the very difference taken by Rolls that where a man brings Trespass for taking pisces suos or lepores suos c. and the like that the Action will not lie But if he bring Trespass for fishing in his several Piscary as in our Case or for breaking of his Close and taking lepores suos c. there it will lie Pitfield against Pearce 78. IN an Ejectione firme the Case was thus Thomas Pearce the Father was seised of Lands in Fee and by Deed in consideration of Marriage did give and grant this Land to Iohn Pearce the now Defendant his second Son and to his Heirs after his death and no Livery was made Thomas Pearce died the Eldest Son entred and made a Lease to the Plaintiff who entred and upon Ejectment by the Defendant brought an Ejectione firme Twisden The only question is whether any estate passeth to the Son by the Deed and it was said there did and that by way of Covenant And it was agreed That in this Case if Livery had been made it had been void because that a Freehold cannot begin at a day to come But I may Covenant to stand seised to the use of my Son after my death So a man may surrender a Copyhold to take effect after a day to come Com. 301. So a man may bargain and sell at a day to come 1 Mar. Dyer 96. Chudleighs Case 129. 20 H. 6. 10. A use is but a trust betwixt the parties and 7 Rep. 400. There need not express words of Covenant to stand seised to an use 25 Eliz. Blithman and Blithmans case 8 Rep. 94. Besides these words dedi concessi are general words and therefore may comprehend Covenant and words shall be construed that the Deed may stand if it may be 8 Ass. 34. 7 E. 3. 9. But I agree that if the intent appeareth that it shall pass by transmutation of possession that there it shall be so taken but here his intent doth not appear to be so for if there should be Livery then the son should take nothing for the reason before given which is against his meaning Mich. 21 Iac. Rot. 2220. Buckler and Simons Case Dyer 202. Vinions case The cases cited before are in the future tense but the words are here I give c. 36 Eliz. Callard and Callards Case Stand forth Eustace reserving an estate to my self and my wife I do give thee my Land and the better Opinion was That in that case it did amount to a Livery being upon the Land for his intent is apparent Mich. 41 42 Eliz. Trelfe and Popwells Case adjudged in such case That an use shall be raised For which it was concluded that in this case there is a good estate raised to Iohn Pearce by way of Covenant Rolls I conceive that not estate is raised to Iohn Pearce by this conveyance It was objected That it shall inure by way of Covenant to raise an use I agree that if the meaning of the party may appear that he intended to pass his estate by way of raising of an use otherwise not And here is no such appearance Foxes Case in 8 Rep. is a stronger case and here it doth not appear that he meant to pass it by way of use But by the word give he intended transmutation of possession 8 Rep. Bedells case Mich. 18. Car. Rot. 2220. in the Common Pleas it was adjudged That a gift of a Remainder after the death of the grantor was void wherefore he concluded for the Plaintiff and so Judgment was given by the whole Court And Justice Iones said When a man makes a doubtful Conveyance it shall be intended a Conveyance at the Common Law And it shall not be intended that the Father would make him Tenant for life only punishable of wast Mich. 15º Car ' in the Kings Bench. 79. IT was moved for a Prohibition to the Counsel of the Marches and the Case was such A man seised of Lands in Fee
that it was his own horse but quendam equum and for that reason by the whole Court the Judgment was affirmed More of the Case of Leake against Daweâ— 108. SErjeant Mallet for the Plaintiff That the Scire faâ—â—â—s is good notwithstanding the exceptions for these reasons First because it is not a Declaration but a Writ which is not drawn by Counsel and it is to declare the matter briefly but if it were in a Declaration yet I hold it good because he saith that it was modo adhuc seisitus existit which as I conceive helps it and besides it is not his title but the title of his Adversary which he is not bound to plead so exactly as his own title See for that 14 Eliz. Dyer 204. 2 Car. beswixt Green and Moody in Audita Querela he shewed that there was Debt brought upon a Lease for years to begin at a day to come and did not shew whether the Lessee entred before the day or not so as he might be a disseisor and yet notwithstanding it being in Audita querela which is an equitable Action it is good Hil. 1 Iac. betwixt Blackston and Martin in this Court a Scire facias was brought to avoid a Statute and it was shewed that the Defendant was Tenant but doth not shew how Tenant but it said ad grave damnum which could not be if he were not lawful Tenant and therefore adjudged good notwithstanding that general allegation See new Book of Entries Mollins case 98 99. a strong case to this purpose Besides he said That here issue was taken upon another point Whether he bargained or not and therefore he conceived in this Scire facias that it is not hâ—râ— needful to shew the Inrolment and for these reasons prayed Judgment for the Plantiff Serjeant Wild for the Defendant That the shewing of the Inrolment is not helped by the Issue joyned being matter of substance for he saith that virtute cujus and of the Statute of 27 H. 8. of uses that the Defendant was seised and we ought not to intend an Estate by any other means or seisin than himself hath alledged And thâ—refore it ought to be adjudged upon his own pleading whether the Defendant hath any estate without inrolment or entry by force of the Statute of Uses And I conceive he hath not True it is that all circumstances ought not to be pleaded but the substance viz. the Inrolment and therefore it ought to be pleaded as Fulmerston and Stewards case is in the Commentaries and 2 Eliz. Dyer And no estate passeth without Inrolment not a Fee-simple for then there ought to be Inrolment according to the Statute and no estate at will can pass without Entry for that is as opposit ' in objecto that a man shall be tenant at will against his will for his Entry proves his intent to hold at will For Littleton saith By force whereof he is possessed so that there ought to be possession to make an Estate at will And in case of a Lease for years although it be true that he is a Lessee for years to many purposes before Entry yet an Entry ought to be pleaded And Dyer 14. is non habuit non occupavit is no good plea in a Lease for years contrary in the case in a Lease at will which is a strong proof that he is not Lessee at will before entry 3 Iac. betwixt Bellingham and Fitzherbert 5 El. Dyer 10 Eliz. Mockets case Mich. 15 Iac. betwixt Coventry and Stacie resolved that a release to the Bargainee before Inrolment is not good And by consequence he hath not an estate at will before Inrolment or Entry made for if he had the Release should be good 18 H. 8. the Lord Lovells case that no estate at Will Lastly Parrolls font plea and the case of a man shall not be taken to be otherwise than he hath pleaded it and he having pleaded that virtute cujus and of the Statute of Uses that the Defendant was seised he shall be concluded thereby 5 H. 7. A man shewed that another licenced him to enter into his land and occupy for a year it is not good but he ought to plead it as a Lease Besides the virtute cujus is not traversable as the 11 Rep. Pridle and Nappers case is Rolls accord and he said That if it shall be construed That the Conusee shall have an estate by Disseisin the Plaintiff ought to plead it that the Defendant was seised by way of disseisin And where it was objected That this is a Writ and not a Declaration he answered It is a Writ and Declaration also and therefore he ought to declare his case at large and the defect of the Conveyance viz. the want of Inrolment is not supplied by the virtute cujus And he having made that his Title you ought to judge upon it and not otherwise But the whole Court viz. Bramston Ch. Just. Crooke Iones and Barckley Justices That the Scire facias was good for it was said that the Defendant perquisivit sibi heredibus suis and concludes virtute cujus and of the Statute of Uses he was seised which is a good averment that he hath a Fee and it was not material how he hath it and he need not shew his Title so fully being a stranger to it And this being an equitable Action if the Court upon this Writ shall conceive sufficient matter upon which the Plaintiff may bring his Action it is good and the Court ought to give Judgment for him for being but matter of form it is not material unless a Demurrer had been special upon it And wheresoever there is damnification there the Court ought to give Judgment for the Plaintiff notwithstanding a defect of form in the Writ And Barckley said That if a man be seised of Bl. acre and Wh. acre and acknowledgeth a Statute and afterwards makes a Lease for years of Wh. acre the remainder over in Fee then the Conusee purchase Bl. acre and extendeth the land of the Lessee for years he held that he in the remainder should have an Audita querela or a Scire facias for the damnification which came to his interest And he held that he who had but interesse termini should have an Audita querela That one jointly only might have an Audita querela and that the death of one of them should not abate the Writ And he held that Cestui que use before the Statute might have an Audita querela all which proves it to be but an equitable Action upon which the Law doth not look with so strict an eye as upon other Actions And as to the Objection which was made by Râ—lls that he ought to shew That the Conusee had an estate by disseisin Iones was against that for that no man is bound to betray his Title And for these reasons it was adjudgâ—d by the whole Court That the Judgment should be affirmâ—d 109. A Writ of
of peace are coram non judice 27. pl. 63. Presentments taken in an Hundred-Court are coram non judice 75 pl. 115. Corporation Churchwardens in London are a Corporation and may purchase Lands to the benefit of the Church but Churchwardens in the Country though a Corporation are capable onely to purchase Goods to the benefit of the Church 67. pl. 104. Covenant A man makes a Lease and that the Lessee shall have conveniens lignâ—m non succidend ' vendeâ—d ' arbores the Lessee cuts down Trees the Lessor may bring an Action of Covenant 9. pl. 22. Lessee of a house Covenants to repair it with convenient necessary and teneatable Râ—parations in Covenant the Lesser alleadgeth a breach in not repairing for want of Tyles and daubing with Morter and doth not shew that it was not tenentable therefore nought 17. pl. 39. A man by Deed conveys Land to his second Son by these words I do give and grant this Land to I. S. my second Son and his Heirs after my death and no livery made and dyes the Estate passeth not by Covenant and therefore the Son taketh nothing 50. pl. 78. Covenant with two severally and good 103. pl. 176. Counsel Counsellors Counsel saith to his Client that such a contract is Simony and he saith that Simony or not Simony he will do it and thereupon the Counseller maketh this Simoniacal contract this is no offence in him 83. pl 136. Custom and Perscription By the Custom of London a man may transfer over his Apprentices to another 3. pl. 6. By the Custom of London the Mayor may restrain any man from setting up his Trade within the City in a place unapt for it and for his disobedience may imprison him 15. pl. 34. Custom to cut Grass in the soyl of another to strow the Church good Custom 16. pl. 38. Custom or Prescription in non decinando by a Hundred is good but not by a Parish or particular Town 25. pl. 59. A Law or Ordinance where the Custom will warrant it that he that puts in his beasts in the Common beyond such a limit or bound shall pay 3 s. 6 d. is a good Law 28. pl. 64. Custom that if a man have see in Land that it shall descend to the youngest Son and if Tail that then to the Heir at Common Law is a good Custom 54. pl 82. Prescription to have Common for all beasts commonable is naught but for all beasts commonable levant and couchant is good 83 pl. 137. A Hille hath a Chappel and buries at the Mother-Church and for this have time cut of mind repaired parcel of the wall of the Church it is good for to excuse them from repairing the Church Inhabitants of a place prescribe to repair the Chappel of ease and in regard of this that they have been time out of minde freed from all reparations of the Mother-Church good prescription 91. pl. 151. Hille hath a Chappel of ease and a Custom that those with in such a precinct ought to find a Rope for the third Bell and repair part of the wall of the Mother-Church in consideration of which they have been freed of payment of any Tythes to the Mother-Church whether this be a good Custom or not quaere ubi supra Damage Cleer WHat Damage Cleer is and the prejudice that a man may have in this that he cannot have his Judgement before that he hath payed the Damage cleer 76. pl. 226. Damages and Cost Heir apparent ravished of full age his Fatâ—er shall not recover Damages 5 pl. 8. In Attaint the Verdict was affirmed and the Defendant in the Attaint prayed Costs but was denyed by the Court. 24 pl. 55. A man distraiâ—s for a Penalty asseâ—â—ed by Custom and distrainable by Custom and upon a Beplevin brought Judgement was given for the Avowant and Damage assessed and whether Damage ought to have been given or not quaere 38. pl. 64. Where Damages entire shall be nought and where not 47. pl. 76. 96. pl 166. 47. pl. 76. Where Costs and Damages shall be recovered upon a Penal Law where not 56. pl. 88. 61 pl. 95. Prisoner removing himself by Habeas corpus shall pay the costs of the removal otherwise where he is removed by the Plaintâ—ff 89. pl. 143. In an Accompt a man shall recover Damages upon the second Judgement 99. pl. 171. Debt A Sheriff levies money upon a Fieri fa cias Debt will lie against him and if he dyes against Executors 13. pl 33. In Debt upon an Accompt it sufficeth to say that the Defendant was indebted to the Plaintiff upon an Accompt pro diversis mercimoniâ—â— without reciting the particulars 102. pl. 175. 105. pl. 182. Defamation If a man Libel in Court Christian for calling of him Drunkard Prohibition lies See Tit. Prohibition 1. D. Libelled in the Ecclesiastical Court for these words She is a beaâ—â—ly quâ—an a 〈◊〉 qâ—ean a copper-â—os'd qâ—ean and 〈…〉 and hath 〈◊〉 500 l. and 〈…〉 with whorâ—s and Regâ—â—s upon which a Prohibition was prayed and granted 89. pl. 144. A woman Libelled in the Spiritual Court against one for calling her Jade upon which a Prohibition was prayed and granted but if it be Libelled for calling one whore or bawd no Prohibition lies 99. pl. 170. By the Custom of London an Action lies for calling a woman Whore and ruled a good Custom 107. pl. 184. Default Appearance Administrator of one Outlawed for murder brought Error to reverse the Outlawry and was allowed to appear by Attorney 113. pl. 190. Demands Demandable Grantee of a Rent to be paid at the house and if the Rent be behinde and lawfully demanded at the house that then it shall be lawful for the Grantee to distrain whether a distress upon the Land be a sufficient demand as this Case is or not quaere 147. pl. 218. Denizen Alien Merchant goes beyond Sea and marries an Alien who have Issue the Issue is a Denizen 91. pl. 150. Deprivation Where a Church shall be void without sentence of Deprivation See Title Void Voidable Devises Devise of Goods to one for life the Remainder to another the Remainder is void 106. pl. 183. Divorce A man divorced causâ adulterii is within the Proviso of the Statute of 1 of King Iames ca. 11. but not a man divorced causâ— saevitiae 101. pl. 175. Discontinuance A man may Nonsuit without the consent of the Court but not Discontinue without the Courts consent 24. pl. 54. Dispensations Whether the King by a Non obstante in his Charter of Pardon may dispense with the Statute of 13 R. 2. ca. 1. or noâ— quaere If you peruse this Case you shall finde much excellent learning upon that point in what Case the King may dispense with Statutes in what not 213. pl. 250. Distress Horses traced together are but one Distress Fetters upon a Horse-leg may be distrained with the Horse 91. pl. 149. Distribution Whether the Ordinary after Debts and Legacies