supposed to be done in fee and so seised did demise the same for years by deed to the Plaintiff reserving rent in which deed was a clause of reentry for non payment of the rent and afterwards made his last Will in writing and dyed by which will be gave the said land in qua c. to the Defendant and that after the rent was behind and that he for the non payment of the rent according to the Covenant in the deed by virtue of the clause of reentry did enter intot he lands which is the same breaking of the Fence and entry for which the Plaintiff brings his Action and demands Iudgement if the Plaintiff ought to have his Action To this Plea the Plaintiff demurs and shews for cause That it doth not shew that the lease made to the Plaintiff is a lease of the land in which the Trespasse is supposed to be done 2ly Licence The Defendant doth not shew that he did â—nter into the land by leave of the Executor which he ought to have done for though the land was devised to him by will yet he cannot enter into the land without leave of the Executor The Court ordered the Defendant to shew cause why Iudgement should not be given against him upon his plea. and Long. Mich. 23 Car. Banc. Reg. THe Plaintiff brought an Action upon the Case for these words spoken of him Arest of Iudgment in an action for words Long is a murtherer and hath bewitched my Child and was the death of my Child and obteins a verdict The Defendant moves in arrest of Iudgement and takes these exceptions to the Declaration 1. That it is not said that the Child was bewitched to death 2ly It doth not express whether the Child bewitched was born alive or not To this the Court said Felony that the bewitching of the Child is Felony though it do not dye by it And to the second exception That the Court doth not take notice of a Child if it be dead-born and they will intend it was born alive and Roll Iustice said that these words Thou didst kill my Masters Cook Averment have been adjudged actionable although the Plaintiff did not aver that his Master had a Cook Therefore let the Plaintiff take his Iudgement if better matter be not shewn Saturday next Carver against Pierce 23 Car. Banc. Reg. CArver brings an Action upon the Case against Pierce for speaking these words of him Arrest of Iudgement in an action for VVords Thou art a Thief for thou hast stollen my Dung and hath a Verdict The Defendant moved in arrest of Iudgement that the words were not actioanble for it is not certain whether the Dung be a Chattel or part of the Free-hold and if so it cannot be Theft to take it but a Tresspass and then the Action will not lye Chattel Bacon Iustice Dung is a Chattel and may be stollen But Roll Iustice answered Dung may be a Chattel and it may not be a Chattel for a heap of Dung is a Chattel but if it be spread upon the Land it is not and said the word Thief here is actionable alone Felony and there are no subsequent words to mitigate the former words for the stealing of Dung is Felony if it be a Chattel Bacon Iustice said It doth not appear in this Case of what value the Dung was and how shall it then be known whether it be Felony or pety Larceny To this Roll answered the words are scandalous notwithstanding and actionable though the stealing of the Dung be not Felony The rule was to move it again Tuesday next Mich. 23. Car. Banc. Reg. A Writ of Error was brought in this Court to reverse a Iudgement given in the Marshals Court Error to reverse a Iudgment for discontinuance in the Process Discontinuance and the exception taken was that there was a dicontinuance in the process and so there ought to have been no Iudgement and therefore the Iudgement given is erroneous and that there was a Discontinuance it thus appears The Continuance was ad proximam Curiam and it appears upon the retorn of the Venire facias that that was no Court day for it was the three and twentyeth day of the Month whereas Friday on which day the Court was held was not the 23 day and so there is Error in the continuance Roll Iustice said the former Continuance was to the 9th day and from thence to the 15th and that is but six daies and so wants of the time Iudgement Bacon Iustice Where there is a Discontinuance the Court hath no power to give Iudgement and so the Iudgement is here erroneous and therefore let it be reversed nisi causa c. Mich. 23 Car. Banc. Reg. LEssee for years of Lands by Deed Demurrer to a Plea in an action of Covenant brings an Action of Covenant against the Lessor and declares that the Lessor had covenanted that he should peaceably and quietly enjoy the Lands let during the Term and that a Stranger entred upon him and ousted him within the Term. To this Declaration the Defedant demurs Roll Iustice said that the Covenant in this Case is broken though it be a Stranger that entered and ousted the Lessee Walker of Councel with the Defendant took this difference where a Stranger enters upon the Lessee and doth a Trespass and where he enters and outs the Lessee in the former Case he said Covenant the Covenant is not broken but in latter it is broken Iudgement was given for the Plaintiff except cause should be shewn Monday next Thynn against Thynn Mich. 23 Car. Banc. Reg. Hill 23 Car. rot 1658. THynn brought an Action of Dower against Thynn Error to reverse a Iudgement in Dower Return Proclamation and hath a Iudgement by default and thereupon a Writ of Enquiry issued out to the Sheriff who delivered seisin of the Dower recovered and returned the Writ upon this Iudgement The Defendant brings a Writ of Error and assigns these Errors in the Record 1. The original Writ appears not to be returned according to the Statute for the year doth not appear when it was returned 2ly The Proclamation made by the Sheriff appears not to be where the Land lyes 3ly Summons The return doth not mention that the Proclamation was after the Summons as it ought to be as it is Hob. Reports in Allens Case 4ly It is not said that he did make Proclamation upon the Land 5ly It appears not that the Proclamation was in the Parish where the Summons was as the Statute directs To these exceptions Hales of Councel on the other side answered To the first Return that the retorn of the original Writ shall be intended to be in the year of the Reign and not of the Age of the King though the word Reign be omitted To the second the Lands lye in divers Parishes and Proclamation at the Church of any of the Parishes is good
between what the Law directs and what the devise directs all the difference is in the manner how his Son Iohn shall come to the Estate 3 4 Phil. Mar. Dyer 134. 37 Eliz. A man seised in fee had issue two Daughters and devised the Lands to them and to their Heirs and it was questioned whether they were Ioynt tenants and I conceive they are and where one omits a thing in a conveyance which the Law supplies this shall not hurt and he cited Iennings and Pollards Case 6 Car. Hales on the other side argued that the Son takes by purchase and not by descent for the devise is not to the Son in present but after the death of the Testators wife and if he had the Lands by descent he should have them presently VVaiver It is true the Son might have waived the taking by purchase and might have taken by descent but here prima facie he shall be intended to be in by purchase and not descent for here doth not appear to be any actual waiver of the purchase and the Son doth here as I conceive take by way of remainder and not by way of reversion And as to the verdict I conceive it is not good for it doth not shew how the lands are held whether in Chivalry or Socage and so it appears not whether the Testator had power to devise all of them or not for if they be held in Chivalry he can devise but two parts of them as the Statute directs 2ly It appears not that the Testator had but one Son by his first wife 3ly It is not shewed that the Lands are parcel of the Mannor 4ly It doth not appear in whose possession the Lands are Roll chief Iustice said Lands that are given by Will shall be intended to be socage tenure Intention if the contrary do not appear And he held that the devise is void and that it is not in the power of Iohn the Son to make the election to take by descent or by purchase at his pleasure but he must of necessity take the Land as the Law directs which is by descent Maxim and it is against a maxim in Law to give a thing to such a person to whom the Law gives it if it had not been so given 3 4 Phil. Ma. Dyer 134. and therefore the Plaintif ought to have Iudgement And as to the verdict he hath primer possession Verdict and therefore if the other make no title the verdict is for him and good enough Bacon Iustice to the same intent viz. that the Heir doth here take by descent and not by purchase for this the Law says and he cannot alter it and cited Foscues Case 4 Car. and a Case in 7 Iac. And so judgement was given for the Plaintif Franck against Burt and others Mich. 24 Car. Banc. Reg. THe Plaintif brought an Action of Trespass for breaking of his House For costs for the Desendant upon non-sute of the Plaintif and carrying away his Goods at the Tryal the Plaintif was non-sute The Plaintif moved that there was error in the Declaration and therefore there could have béen no Iudgement and prays that he may be spared costs Roll chief Iustice answered that heretofore it hath been made a question whether the Plaintif being non-sute should pay costs Cests but since the Statute of 4 Iac. it is clear he ought to pay costs for the vexation of the Defendant and so it hath béen ruled here and you are out of Court now by being non-sute and therefore you must pay costs And therefore except better matter be shewed let them be paid Mich. 24 Car. Banc. Reg. THe Court was moved for a Prohibition to the great Sessions of Carnarvan in Wales to stop a sute in an English Bill of Equity exhibited there For a prohibition to the great Sessions at Carnarvan in Wales whereas by the Bill it appears there is no matter of Equity in the Case but only matter tryable at the Law The Court answered if they proceed there against Equity we cannot hinder them There was wont to be an Agent here from the Commissioners there for us to confer with in such cases as these but it seems there is not any here now Therefore give notice Prohibition and let them shew cause the next Term why a Prohibition should not be granted Mich. 24 Car. Banc. Reg. VPon reading of a retorn made by the Sherifs of the City of Norwitch upon a Habeas corpus directed unto them for one Chambers It was said by the Court How a Habeas corpus to an inferiour Court should be retorned Retorn that it hath been ruled That upon a Habeas Corpus to an inferiour Court to remove Corpus cum causa they ought to retorn all the causes that are depending there concerning the party that hath the Habeas Corpus if any of the causes depending be for above five pound of which they ought not to hold Plea and therefore because all the causes were not retorned here upon the retorn of this Habeas Corpus The Court held the retorn was not good and ordered that it should be amended upon pain of ten pounds by Monday next Raph against Davye Mich. 24 Car. Banc. Reg. RAph brought an Action of the Case against Davy for speaking these words of her to the Plaintifs mother Arrest of judgement in an action for words viz. Your Daughter innuendo the Plaintif is a brazen faced Whore and deserves to be hanged and for speaking these other words to the Plaintif herself viz. you Huswife are a Thief and have stollen my Purse The Plaintif had a verdict The Defendant moved in arrest of Iudgement Averment that the Plaintif doth not aver that her Mother had not any other Daughter besides herself and so it is uncertain whether the words were spoken of her or no. But the Court held it was well enough without such averment because the Declaration is that the Defendant habens colloquium of the Plaintif did speak the words and that makes it certain enough And therefore bid the Plaintif take her Iudgement Jennings against Lee. Mich. 24 Car. Banc. Reg. IEnnings brought an Action of Assault and Battery against Lee. The Defendant pleads a special plea Arrest of Iudgement in an action of assault and battery and justifies The Plaintif replies de injuria sua propria and upon this an Issue is joyned and a verdict found for the Plaintif The Defendant moved in arrest of Iudgement that the replication was not good because it answers not the special matter pleaded nor takes any traverse by an absque tali causa as it ought to do and so there is no issue joyned and consequently there can be no Iudgement Roll chief Iustice said that the replying de injuria sua propria Traverse Issue Ieofails and not traversing absque tali causa is not good for there is not an affirmative and a negative and so
for cause shews 1. That the breach of this promise was in the Testators life time and therefore the Action should have béen brought against him and is not now to be brought against the Executor 2ly The Testator did not promise that his Executors should deliver the goods but that he would deliver them upon request Request and there appears no request to be made to the Testator as there ought to have been 15 Iac. Hob. rep f. 300. Bodwells Case But Roll chief Iustice answered Executor That an Executor may be charged upon a collateral promise if there were a breach of it in the Testators life time and here is a good request and goes to all Therefore let the Plaintif take his judgement except better matter be shewed to the contrary and Osborne Mich. 1649. 1 Reipub. Ang. Banc. super THe Plaintif brought an Action upon the Case upon two several promises the Defendant pleaded non assumpsit Arrest of Iudgement in an Action upon the case Issue and upon this an issue was joyned and a verdict found for the Plaintif The Defendant moved in arrest of iudgement and for cause shews that there is no issue joyned as to the second promise alleged for he doth not conclude with petit quod inquitatur per patriam and yet there is a verdict found upon both the promises The Iudgement was arrested till the other should move Mich. 1649. Banc. super VPon a special Verdict the case was this A Case upon a special verdict argued Tenant for life the remainder for life the remainder in tayl the remainder to the right heirs of him in the remainder for life the remainder man in tayl levies a fine in the life of tenant for life And the question was whether by the levying of this fine the estate tayl were discontinued or no. To prove that the estate tayl was discontinued these Books were cited 1 H 7.22 Lit. Cap. Discents Sect. 34.14 Ed 3. Fitz. Avâ—wry 117.3 Ed 3. Fitz. grants 60.15 Ed. 4 9.2 Rep. Butlers case 5. Cooks Lit. f. 25. Pasch 13 Car. Hungates Case Banc. Reg. Dyer 339. Twisden to the contrary argued that the estate is not altered neither to the right nor by way of Estople 46 Edward 3. f. 23. Estople An Estople supposeth a thing to be done and therefore if the thing be impossible which is alleged by way of estople it can be no estople And one shall not be construed to doe wrong by an Act which may be interpreted so that by it he may doe no wrong Brooks Abridgement Grants 49. Roll chief Iustice The matter here is not how the estates shall pass and how to make them good but the Question is upon the forfeiture Forfeiture for he levies the fine as of an estate in possession and not of a reversion in fée and this is not upon the rule in Bredons case 13 Car. Sir Julius Caesars case an Acceptance of an estate or an Attornment by Tenant for life to a stranger is a forfeiture Jerman Iustice held there was no forfeiture But the Court said the Verdict was ill sound and therefore ordered it should be amended that the whole matter in Law might come in question Amendment Gray against Walye Mich. 1649. Banc. sup VVAlye brought an Action upon the Case against Gray Arrest of judgement in an Action upon the case for speaking these words of him viz. Iack Walye was questioned for stealing of a gray Mare with a snip in her ear and hue and cry went out after him and he durst not shew his face hereabouts The Plaintif had a Verdict and the Defendant moved in Arrest of Iudgement that the words were not actionable because they were general and uncertain words and it doth not appear the party was damnified by them nor how long ago they were spoken Roll chief Iustice said that the party was defamed by speaking of them and he hath laid it that he lost his Credit thereby Therefore let the Plaintif have his Iudgement except better matter be shewn But Nicholas Iustice doubted whether they were actionable or no. And Ask Instice nihil dixit Mich. 1649. Banc. sup AN Attorney of this Court that was within age Error against at Attorney in Court for appearing propria persona being within age Error in fact appeared to an Action propria persona and pleaded to issue and had a verdict and a judgment for him and upon this a writ of Error was brought here it being an error in fact because that being within age did not appear per guardianum nor by his Attorney and it was said that it is not helped by the Statute of Ieofails though it be after verdict And thereupon the Court stayed the Execution Mercer against Rule Mich. 1649. Banc. sup THe Court was moved For a Supersedeas attachment for taking out execution after a writ of Error brought and allowed Supersedeas Attachment Execution That a writ of Error was brought to reverse a Iudgement and that it was received and allowed and notwithstanding the Plaintif that had the Iudgement had taken out execution and thereupon it was prayed for a supersedeas to supersede the execution and for an Attachment against the party for his contempt to the Court. And it was urged by the Councel that moved That after a writ of Error is received and allowed the hands of the Court that gave the Iudgement are foreclosed from granting out execution and that the writ of Error is in it self a Supersedeas and cited Dyer 283. and therefore concluded that the execution is not well issued forth Twisden of Councel on the other side said that the writ of Error was not duly pursued because the roll was not marked and therefore the party might well take out execution But Roll chief Iustice answered that the writ was well pursued though the roll were not marked Yet if neither the roll be marked Notice nor notice given to the Attorney on the other side of the bringing the writ of Error if the party procéed to take out execution it is no contempt to the Court otherwise it is a contempt Contempt Supersedeas And it is the duty of the Clerk of the Errors to mark the roll and not the Attorneys and therefore take a Supersedeas quia improvide emanavit to stop execution Pym against Morgan alias Bambery and Baselye Mich. 1649. Banc. sup Hill 24 Car. rot 1062. IN an Ejectione firmae brought for the Mannor of Caledown Argument upon a special verdict in an Ejectione firmae The Defendant pleads Not guilty and upon this the Iury find a special verdict to this effect That Sir Thomas Morgan was seised in fée amongst other lands of the lands in question and that in 13 Car. he made a settlement of these lands to himself for life the remainder to his daughter Mary for life the remainder to the heirs of the first Tenant for life with a power of revocation
heir and an authority cannot divest them out of him this is not like to the surrendring of Copyhold lands into the hands of the Lord for such a surrender cannot be revoked but this authority may be revoked But which is more the Verdict here doth not find that the two Attorneys are customary Tenants of the Manor but only by way of recital which is not good for they ought to have been found to directly nor doth it appear that they were customary Tenants at the time of the admittance of the party neither is there any possession or title found in the Defendant and so the Plaintif having primer possession the Defendant is culpable neither is it found that the Customary Tenant who gave this authority had an estate in fee-simple in the lands and if he had but an estate for life he could not make such a Letter of Attorney neither is the authority given warranted by the Custom and so he prayed judgement for the Plaintif Wilmot for the Defendant As to the authority he said that it was good and did well enough survive the party that gave it because it is supported with a special direction from the party that gave it 1 H. 7.8 and this is the reason that an Executor may sell lands of the Testator after his death viz. because his authority is so supported 21 E. 4. f. 8. 31 E. 1. Fitz. Grants 45. And here in our case the heir hath neglected his advantage and therefore shall not now be admitted to take it But besides the authority here given is more than a bare authority for it is backed with the circumstances of time persons and of a Custom which is not of a slight esteem in Law and by such a Custom which is very reasonable for it is but to enable the party to dispose of his own lands and far more unreasonable Customs than this are allowed in our Law as that in Kent for an Infant of 15 years of age to have power to sell his lands neither is this Custom contrary to any positive rule of Law for it is here to create the authority to begin after the parties death that created it and so it is not to determine with his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and this Custom extends but within the Manor which is but to a small compass of ground and so the publique is not much concerned in it and the case of 17 Car. in this Court Bambridge and Whaddons case differs from our Case for that was not supported with a custome as this is And it doth appear by the Record that Dalby the Attorney is a customary Tenant and the admission is also found by the Verdict to be secundum consuetudinem Manerii and so that is well enough and then one cannot gain a Copyhold estate by disseisin and so no primer seisin shall be intended as was urged on the other side and it is also found that the Copyholder was seised Roll chief Iustice It will be a hard matter to maintain the Custom Custom if it be not found that the Copy-holder was seised in fee of the Copyhold lands 2ly It is not here found that the land is demisable according to the will of the Lord and so it may be free land and then the custom doth not extend unto it nor is it found that the parties to whom the Letters of Attorney were made were Copyhold Tenants Disseisin And the primer possession will make a disseisin here by the Defendant if the custom be not-well found and so judgement must be for the Plaintif Devise And I cannot see how the Custom can be good it being against the rules of Law Surrender A man cannot devise Copyhold lands and this case is worse but he may surrender to the use of his last Will. If you will not consent to a new tryal we will advise for it is a hard case and my Brothers have not been attended with Books Mich. following Iudgement was given for the Plaintif nisi It was moved again and the Court would advise Postea Batchelour against Parsons Trin. 1651 Banc. sup Mich. 1652. rot 381. BAtchelour brings a writ of Error to reverse a Iudgement given against him for Parsons in an Action of Debt in the Common Pleas and the Error assigned was Error to reverse a judgement in debt that there are two Declarations in the Record one in the Emparlance Roll the other in the Plea Roll and the Original certified upon the writ of Error doth not warrant the first Declaration for it was filed after it Hales answered that the Record is good enough if the Original dowarrant the last Declaration for this is the common course used in the Common Pleas as the Clarks there do inform me there are many Cases like this in the Common Pleas. Wild of Councel on the other side answered that this is a strange course for they ought first to file the Original because it is the beginning and ground-work of the sute and it not being so done here the Iudgement is given without an Original this is a judgement by default and the imparlance is part of the sute Roll chief Iustice Imparlance Intendment Certiorari The Imparlance Roll is the principal part of the sute and to consound things by intendment that the imparlance may be touching another sute is not good and it matters not what the Custom is in the Common Pleas if it be against Law and both Rolls ought to be certified here Ierman Iustice ad idem Roll chief Iustice All the Record in the Common Pleas which is in the custody of the chief Iustice there ought to be certified by him upon the Retorn of the Writ of Error and here the Imparlance Roll is in his custody and therefore he ought to certifie it and if there be two writs of Error Error and one is good and the other naught we will take the best to affirm the judgement The Original ought not to be fitted to the Declaration but the Declaration to the Original because the Original is the foundation of the sute and therefore the course used in the Common Pleas is a preposterous course Original viz. to declare against the Defendant and after to file an original against him to warrant the Declaration It is here certifyed to be one Record and how can we take the emparlance Roll to be part of the Record it being not certyfied with it and if there be variance between the emparlance Roll and the plea Roll Variance it is Error We will advise but we must not suffer new wayes yet we are loth notwithstanding to reverse Iudgements given in the Common pleas Therefore shew cause next term why the Iudgement should not be reversed Kirman against Iohnson Trin. 1651. Banc. sup IN an ejectione firmae brought by Kirman against Iohnson a special verdict was found
enough 2ly It doth not appear that there are divers Churches in New-Sarum where the Proclamation was made To the third exception the Proclamation is said to he made prout breve postulaâ— and that shall be supposed duly done and implies all requisite circumstances and he cannot make another return and it is impossible to be otherwaies To the fourth it is not necessary to retorn the place of the Summons and it is said that it was made secundum formam Statuti which supplies the rest And to this the Court said that the words secundum formam Statuti extend far And Roll Iustice said that Proclamaiton in one place was good in all Holhead of Councel with the Plaintiff in the Writ of Error proceeded and took these exceptions in the demand of the Dower 1. The demand is generally de rectoria which is not good Demand Rector for the incertainty of it for there may be a Rector of a College of a Province of a Bishoprick as well as of a Parish-Church and therefore it ought to have been de Rectoria Ecclesiae parochialis de c. 12 H. 4. f. â—9 pl. 1. 2ly The demand decimarum is too general and not good and it ought to have been decimarum granorum soeni c. for the demand de omnimodis decimis quibuscunque is too general 11 Rep. Herberts case 1. To these exceptions Hales answered that a demand in a Writ of Dower need not to be so exact as in other original Writs for original Writs are not alterable but ought to answer the forms in the Register To the second he said that rectoria shall be intended the Rectory of a Church and the Statute extends not to this besides the place of the Rectory is described which makes it certain enough To the third it is not necessary to express the Tithes particularly and the demand being of the Rectory it compriseth all the Tithes also the demand is de omnimodis decimis which is a general demand and compriseth all and is not de decimis only for that might be incertain Holhead The demand is de rectoria de omnimodis decimis which is a demand of one thing twice and that is not convenient for by this means the party may recover dammages twice and the Court will be also inveagled by this means and it matters not though we have not pleaded to this for the Court ought to take notice of it Notice because it is in the original Writ Next there is no form in the Count for cum pertinentiis is informal for it refers to the Parish and not to the Mannour 27 E. 3. f. 86. Pl. 3. Haleâ— This is but a variance in form and is not material and also it shall be intended to refer to the Mannour and not to the Parish Holhead The demand is not warranted by the Writ for the Vill and Parish are not named in the Writ but are named in the demand 11 Rep. Arondels case Hales The demand is not de rectoria in Tymsbury but de Tymsbury and is the denomination of the thing demanded Tithes Parissi and not of the Vill where it lyes Holhead It is not said where the Tithes extend and they may extend to divers Vills as a Parish may 19 E. 3. f. 9. Hales Here is one demand and it includes all the Tithes Roll Iustice You have demanded the Rectory in Tymber and not the Rectory of Tymber and by the grant of ones Mannour in Dale no more of it passeth than what doth lye in Dale and here it shall be intended so much of the Tithes as are in Tymber Holhead Here is a demand of Dower of such things whereof Dower lyes not viz. of a quarry of Stones and it appears not that the Quarry was open in the life of her Husband and if it were yet it is improper to demand it by the name of a Quarry Hales the word Quarry is a good word well-known what it means for Quarrera is an old wel-known Latine word for it Dower and she is as well dowable of it as of a Mine of Coles and it shall be intended to be open because she demands it by that name of a Quarry Holhead The demand of the Dower is also of a Hundred of which a Woman is not dowable because it is an entire thing and cannot be divided and the demand should have been de tertia parte proficuorum hundredi To this Roll Iustice answered then by your reason she shall never keep a Court. Hales It is well enough demanded for a demand shall be of the thing it self and not of the profits of it for the profits were not in the Husband but he was seised of the Hundred and the profits are a thing incertain Holhead The execution of the Habere facias fesinam is not well executed for by it two third parts are assigned for Dower and that is more than the demand Hales That is but a repetition of the thing demanded Holhead A thing not demanded at all is assigned for Dower viz. view of Frank pledge Hales That is but an incident to another thing that is demanded viz. the Hundred and by the demand of the Hundred the view of Frank-pledge is demanded and all other incidents to the Hundred Holhead Here is an assignment also of all tenures and she cannot have Homage because she is a Woman Hales She shall have all tenures which she is capable of and so all shall be understood in this place and no other she shall have Holhead The Iudgement is also if 15 Copiholds Tenements which lately were Copiholds Roll Iustice This is good enough and what loss have you by it Holhead The Assignment is also of the 3d. part de Copicia de Structuris and other words there are which are also incertain And there is error in the assignment of dammages for the dammages are assigned ultra valorem terrae which is against the Statute Roll Iustice Dammages Iudgement the Statute is an addition of the value and dammages for the Iudgement is perfect without returning the Writ of the dammages and so hath been adjudged in the Common pleas Holhead Here is an ill suggestion of the Feme for the suggesteth that her Husband dyed seised in fee of all the Lands out of which she demands her Dower and that is not true for he dyed seised of part of them in tayl To this the Court said that is not material if he dyed so seised that she ought to have Dower Holhead Dammages are given ultra valorem which I conceive is not good Roll Iustice It is well enough for dammages are given and the value by the Statute Holhead The retorn of the Elegit is not good Hales That is another Record and appears not now in the Court Roll Iustice The Elegit hath no reference to the former Record Holhead There is one error in fact and that is confessed by your joyning in demurrer Doubleness Roll
is scriptum and for the time the Defendant ought to have alleged that he bad not convenient time Tender if the truth were so but here doth appear convenient time and it is not necessary for the Plaintiff to tender the Obligation but the Defendant ought to do it at his own perill and to pay the mony in convenient time after the mariage and the other is not bound to demand it Intendment nor to be at the charge to make the Obligation Bacon Iustice to the same effect and said the words ought to be intended of a writing obligatory according to common intendment Time and the meaning of the parties although it be not so expressed and it cannot be meant of a promise by parol for there are no presidents in Law for verbal securities but only for securities in writing and the word in debita juris forma implies so much otherwise here would be only one promise to make good another promise Pasc 9 Iac. rot 361. Banc. Reg. 21 Iac. upon a Writ of Error in the Exchequer-Chamber the former Iudgement was affirmed and the breach here assigned meets with the Assumpsit for it is that he did not become bound per c. and so the breach is well assigned 2ly Here appears in the Declaration to be two Months for the performing the promise which is a convenient time and there doth not appear any hinderance and the Defendant was bound to do it without request and there is no necessity for the Plaintiff to make an election of the time when he will have it done The Court bid the Plaintiff take his Iudgement except better matter were shewed on Monday following Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible entry To quesh an Endictment The Exception was that the forcible entry is said is to be made in messuagium sive tenementum which is incertain But Roll Chief Iustice doubted whether the exception was good or not because it was messuagium sive tenementum and the word Messuage may be good though Tenemen tum be not But it was quashed upon another exception The King against VVood. Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment taken at a Sessions against one Wood for getting the horse of another man into his possession To quash an Endictment by using another mans name and a false token The exceptions taken against it were 1. The Endictment doth not say that it was contra Statutum But to this the Court answered that it was an offence at the Comon Law and the Endictment lay at the Common Law and therefore it need not to be expressed to be contra formam Statuti 2ly It doth not shew what the false token was nor in whose name it was used But Roll chief Iustice took another exception viz. that the Endictment was that the Defendant did the fact nuper and that is so general a word that no answer can be given to it And for that it was quashed Twigg against Roberts Mich. 24 Car. Banc. Reg. Hil. 22 Car. rot 956. AN Action of Debt was brought against an Executor in Bristow upon a Custom of concessit solvere by him to pay a Debt due by the Testator upon a simple contract and a verdict and a Iudgement for the Plaintiff Error to reverse a Iudgment in Debt against an Executor The Defendant brought a Writ of Error in this Court to reverse the Iudgment and the Error assigned was that the custom of bringing an Action of Debt upon a concessit solvere is not a good custom Custom Wager of Law because it hindrers the party to wage his Law as by the Law he may do Walker of Councel with the Defendant in the Writ of Error argued that it was a good custom because the party is not thereby hindred of a tryal and there are customs in London which are against the Common Law as for example for the Recorder to give Iudgement upon an exigent The Court desired to see the book and to have presidents brought them And said This Custom had been allowed against the party that made the contract but the doubt is whether it be good against an Executor for a concessit solvere is without any consideration And Roll chief Iustice said that this custom doth break three rules of the Law Barker against Denham Mich. 24 Car. Banc. Reg. Trin. 23 Car. rot 1280. BArker brought an ejectione firmae against Denham Special verdict in an Ejectione firmae and upon not guilty pleaded an issue was joyned and the reupon a special verdict was found that by the Custom of the manour whereof the Lands in question were held a Copyholder might surrender his Copyhold out of Court into the hands of two customary Tenants to the use of another and at the next Court the party to whose use the Copyhold was so surrendred used to be admitted and That there was such a surrender made here but that the party to whose use the Copyhold was so surrendred dyed before the next Court and so was not admitted The question was whether he dying before his admittance shall be said to be a Copyholder by the Custom of the manour or no. Descent Hales Argued that he is not a Copyholder within the Custom and then if this Custom hinder not the Lands shall descend according to the rules of the Common Law for so is it of all Copyhold Lands if a speciall custom hinder not and here 1. the words of the Custom are to be considered and 2ly Custom how they are to be expounded and for this he cited 49 E. 3. f. 19.22 E. 3.2 E. 4. f. 24. A Custom shall be construed according to the Common apprehension of the lay gens and a Custom shall be interpreted according to the most effectual operation of the Law 3 H. 7.5 Doct. and Stud. 48.21 H. 7. f. 33.44 Ass f. 10.4 H 8. Dyer 28. A denyal actual by a Copyholder to pay his rent is a forfeiture Forfeiture not an implicative denyal lib. intrat f. 238. And by a surrender of a Copyhold before admittance the surrendree hath no real possession and the heir of a Copyholder before his admittance holds by the Copy of his Ancestor and so he hath title but the surrenderee can have no title before admittance Title and he cited Rawlins and Iones his case and Spurlins case A surrender before admittance is but a a consent of the party to part with the estate but passeth it not and after administration it should have no relation to the surrender Twisden for the Defendant Relation 1. He agreed that a Copyholder before admittance is not perfect in his Estate but yet the admittance shall relate to the surrender and both shall be accounted one entire Act contrary to other learnings 2ly The Son is in by descent and the descent must be ruled by the custom and he is now
an Obligation of 2000 l. for the payment of 1000 l. The Defendant appears and imparls and after imparlance pleads in Abatement of the writ that he is Earl of Nova Albion in Ireland and ought to be impleaded by that name and not by the name of Edmund Plowden Knight upon this plea the Plaintif demurred 1. Because it came in after imparlance whereas a plea in abatement of a writ ought to be pleaded before imparlance 2ly Plea The plea is sâ—ivolous for he pleads that he was Earl of Nova Albion before he entred into the bond which he cannot now plead Estoppel for he is estopped to plead so by his own déed which testifies the contrary Roll chief Iustice said it is a dilatory plea for he is but a Knight here though he be an Earl in Ireland and his own Obligation stops him from pleading as he doth And therefore let him shew cause why he shall not plead in chief within a week otherwise let Iudgement be entred Vid. antea VVats and Dix Hill 1649 Banc. sup Entred Trin. 24 Car. rot 1529. AN ejectione firmae was brought for certain lands in Lincolne Shire and upon not guilty pleaded Argument upon a special verdict in an ejectione firmae there was a special verdict found to this effect I. S. being seised of the Lands in question in Fée made a Feoffment there of to A. B and C. D. and to their Heirs till they should maite a Lease of the said Lands for divers years to certain uses to begin at the Feast of Philip and Jacob next comming The Feoffees enter and make a lease for years of the Lands to begin from the Feast of Philip and Iacob next The question was whether the Feoffees have made such a Lease as the deed of Feoffment directs and so the uses are raised thereupon or whether it shall be intended another lease and not warranted by the Feoffment and so no uses raised Latch held that the Lease is not warranted by the deed of Feoffment and that there are no uses raised for the words at the Feast and the words from the Feast make several beginnings of the Lease and so here is another Lease made than the deed intended 2ly It is not in effect and intention the lease of the parties because it is not made according to their directions and so there are no uses raised for the authority is not pursued nor the precedent condition observed and so the lease hath another beginning and another ending and so it must be another Lease Fitzh graunts 63. And here is not the same reversion intended to the party viz. his Son Watson because it is upon another Lease and so a different reversion And although the Iury might have found the intent of the party and so the same Lease yet they have not found it 2. rep Crumwells case 5. rep Earl of Rutlands case and if the Iury find evidence only and not matter of fact the Court can give no Iudgement 9. rep Downhams case the meaning of the party ought to be found Oxfords case 10. rep 11. Iac. Banc. Reg. Isack and Clarkes case 3 Ed. 6. Bendloes Reports As to the second point viz. whether the use shall result to the Feoffor or remain in the Feoffees he held that it doth result to the Feoffor and remains not in the Feoffees For first there was no other thing intended to be in the Feoffees than to make the lease good and that is not here done and Dyer 300. cited is not to this purpose The intention of the parties is not prevalent in directing of uses and Dyer 300. may be applyed to our case to determine the use 4. rep 82. Barbers case Mich. 2 3 Eliz. Bendloes Reports the use reverted Dyer 16 Eliz. Humphrestons case An estate ought to be made in convenient time otherwise the use is to revert out of the Feoffees to the Feoffor according to his first estate 3ly For the question whether a good estate passe to Elizabeth and the others he held that there did a good Estate passe either by bargain and sale or otherwayes But it is good by bargain and sale notwithstanding it be upon consideration past which is no consideration and the other consideration expressed to raise the use hurts not and here is a good consideration Mich. 8 Iac. Gosman and Carington C. B. There was no good consideration but a curtesie 13. and 14 Eliz. Horwoods case there was a good consideration although there be no monies paid but land for land 2ly If it doe not pass by way of bargain and sale yet it shall pass by way of Covenant to stand seised to uses and the consideration expressed is good to raise the uses Bedles case 7 Rep. these considerations cannot be silenced by the considerations of bargain sale nor shall the intent to pass it by way of bargain sale hurt it if he take by way of use yet it makes not the joyn tenancy operate as a tenancy in Common so it is the same lease declared upon and not divers and there is no disseisin by the entry of the Lessee at election for though he be not Lessee by the Lease intended yet he is Lessee by the one Lease or the other for the Lease is made either by the Feoffor or by the Feoffee and so he prayed judgement for the Plaintiff Pannell for the Defendant put the case at large and made these questions 1. Whether here be such a Lease as the first Indenture doth direct 2ly If the use do not arise where the estate is 3ly Whether there be a good bargain and sale 4ly Whether there be a good consideration to make a bargain and sale 5ly If there be not a good bargain and sale whether it shall enure by way of Covenant to stand seised to a use and he said if all these points be not for the Plaintif all is against him and he held that the words at and from are all one as to signifie the intent of the parties The words have here an extraordinary signification according to time and place and at or in a place are all one and the word at may be satisfied with time precedent or subsequent quae incontinenter fiunt inesse dicuntur et instans est indivisibile and he denied Berwicks case in the 5th Report to be law And here is no need of a forced construction for the intent of the party appears by the case 8 rep 91. For the second point if the Lease be not good and no use raised then where the estate of the land is And he held that it is in the Feoffees not withstanding for here the use is limited but not in the cases put on the other side And here was a fee simple determinable but it being become impossible it is a fee absolute Trin. 18 Car. Roll and Bois and Dyer 300. is mistaken in putting of the case on the other side And it cannot result for
And as to the second the Court held that it shall be intended that the Posts and Pales were not fixed to the ground Amendment and there is no necessity to express how many Posts and how many Pales the Defendant took Intendment and it is not material whether they were fixed or not But the Court would advise and ordered Councel to spake again to it Popham against White Mich. 1650. Banc. sup AN Action of Trover an Coversion was brought Exception to a Declaration in a Trover and Conversion wherein the Plaintif declared pro Arboribus Twisden of Councel with the Defendant argued that the Declaration was not good because a Trover cannot lie de Arboribus Roll chief Iustice he may declare de Arboribus if he say that he was possessed sicut de Arboribus suis propriis But Ierman Iustice doubted Therefore the Court would advise Martin against Hendlye Mich. 1650. Banc. sup MArtin brought an Action of Debt against Hendlye a Sherif for an escape and had a Verdict against him Arrest of Iudgement in an action of Debt against a Sherif for an escape Advantage The Defendant moved in Arrest of Iudgement and took these exceptions 1. That the Action was brought by the Plaintif as an Administrator for the escape which was made in the life of the Intestate only 2ly That there is no Capias issued to the Sherif The Court answered That the Sherif cannot take advantage of an erronious process but the first exception is good for the Action ought to be brought in the Detinet only the Plaintif being but an Administrator Detinet who recovers not to his own use Therefore stay Iudgement till the Plaintif move Dethick against Mich. 1650. Banc. sup DEthick moved for a Prohibition to the Admiralty for preferring an Endictment there For a prohition to the Admiralty Prohibition Certiorari which is not within the Statute touching the Admiralty and so they have no jurisdiction of the cause The Court answered that a Prohibition lies not in cases of Felony but if there be Cause it may be removed by Certiorari But we will advise Bennet and the Hundred of Hartford Mich. 1650. Banc. sup IN a tryal at Bar between the inhabitants of Hartford and Bennet a Caryer upon an Action brought against them upon the Statute of Winchester Evidence by one of the lury to the rest Evidence for a robbery committed within that Hundred upon his servant It was said by the Court that if either of the parties to a tryall desire that a Iuror may give evidence of something of his own knowledge Examination Where a hundred shall be charged for a robbery or where not to the rest of the Iurors that the Court will examine him openly in Court upon his oath and he ought not to be examined in private by his companions And it was also said that if a robbery be done in crepusculo the Hundred shall not be charged but if it be done by cleer day light whether it be before Sun rise or after Son set it is all one for the Hundred shall be charged in both cases Mich. 1649. Banc. sup SErjeant Earl A Iury being ready at the Bar for a tryal challenged the Atray for want of Hundreders A challenge of the array f r want of Hundredors the manner of it and delivered in the challenge in writing to Woodward the Clark of the Court to be read But the Court interrupted him and said to the Serjeant you ought first to read it your self in French which he accordingly did and afterwards Woodward read it in Latin Twisden of Councel on the otherside said that the challenge was taken to no purpose for the Iury was returned by the Secondary by rule of Court and the Hundreders were put out by the consent of the parties But the Court answered that the consent of the parties was to no purpose to avoid the challenge but that it was a good challenge Consent Challenge Tales and there cannot be a tales granted upon a challenge for default of Hundreders and therefore the panel was quashed and a new Iury ordered to be returned by the Sheriff In this case it was said that after the first man of a Iury is sworn the Array cannot be challenged Cage against Dod. Mich. 1650. Banc. sup VPon a tryal betwen Cage and Dod touching a Copyhold it was said by the Court that a Copyholder for life cannot prescribe against his Lord What copy-holder may prescribe against his Lord and what nor but a Copyholder in fee may for he hath the Copyhold in the nature of Land of inheritance And also that if a Copyholder for life cut down tymber trees the Lord may take them And that if an under Lessee for years of a Copyholder cut down tymber Forfeiture it shall not be a forfeiture of the Copy-holders estate The Countesse Rivers Mich. 1650. Banc. sup THe Countesse Rivers put in her plea of Privilege of Peerage into Court A Plea of privilege of peerage by Countess Privilege and prayed by Sejeant Glin of her Councel that it might be read and allowed Vpon which it was read by Woodward Clark of the Court. After which Roll chief Iustice said it is questionable whether a Countess made so by patent only for her life be privileged or no therefore let her remain in the Custody of the Sheriff till Saturday and not be turned over to the Custody of the Mareschall and then move it again Postea Burton against Low Mich. 1650. Banc. sup BUrton brought an Action of debt against Low Demurrer in debt upon a Sheriffs bond upon a Sheriffs bond given by Low to the Sheriff being arrested by him by virtue of an Attatchment directed to him out of the Chancery the condition of the Bond was that the Defendant should appear on such a day in Cancellaria apud Westmonasterium ubicunque suerit The Defendant pleads in Bar the Statute of 3 H. 6. she Plaintiff demurred to this plea. Moseley of Councell with the Defendant argued that the Bond upon which the Action was brought was void and against the Statute 1. Because the party is bound to appear in a Court which is not a fixt Court and so incertain namely the Court of Chancery at Westminster whereas the Chancery is a moveable Court and not fixt to Westminster or any other place 2ly The condition of the Obligation is impossible for it is that the Defendant shall appear in the Chancery at VVestminster wheresoever it shall be and it is impossible for him to appear at VVestminster and at another place at the same time 3ly The Bond varies from the Statute in some things and enjoyns more than the Statute requires in other things VVilmot on the other side held that the Bond is not within the Statute because the King is not within the Statute as was held 13 Car. 7 H. 4. f. 44. 5 rep VVhelpdales case Dyer 119. Roll chief
he was taken and imprisoned The Defendant pleaded an award made by Sir John Rivers and Sir Nicholas Miller two Iustices of Peace between the parties in Bar. Twisden of Councel with the Plaintif said that the award doth not bind the Plaintif for the award concerns only the speaking of the words and speaks nothing of the imprisoment And 2ly the Award is not good for there is not satisfaction made by it on both parties Wild of Councel with the Defendant held that the Declaration was not good and that therefore he needs not to justifie the plea for though it should be ill yet the Plaintif can have no judgement and he said the Declaration was naught because it alleged no day when nor place where the Defendant charged the Plaintif with the felony and made him to be imprisoned Twisden answered that there is a place alleged and that though there were none yet it is well enough for part and judgement may be given for that To which Roll chief Iustice agréed Wild replyed then the plea is good But the Court answered it is not and what say you to the Arbitrement Wild answered it was good to which Ierman and Ask Iustices assented Roll chief Iustice answered It is a benefit to the Parish and so to the Overseers of the poor Nicholas Iustice to the same purpose Roll chief Iustice said that the Declaration is ill and the Plea also for the Plea is entire Declaration Plea and yet goes not to all the matter alleged in the Declaration but the plea is only to part of them and therefore if any part of the Declaration be good judgement ought to be given against the Defendant for that part and the plea in Bar is naught so judgement ought to be entirely for the Plaintif But it is to be considered concerning the damages Rosyer against Langdale Hill 1650. Banc. sup Pasch 1650. rot 100. ROsyer an Executor brought an Action upon the Case upon an Assumpsit against Langdale a Feme Administratrix Error to reverse a judgement in an Assumpsit by an Executor against an Administratrix and declares that the Defendant in consideration that he would forbear sute until she had taken out Letters of Administration did assume and promise to pay unto him the Plaintif a certain sum of money owing unto him by the Intestate Vpon Issue joyned and a Verdict and a Iudgement for the Plaintif The Defendant brought a writ of Error to reverse the Iudgement And Baldwin of his Councel took these Exceptions 1. That the Plaintif had set forth no consideration in his Declaration for the Assumpsit for all that is alleged is that the Plaintif should forbear sute till the Defendant had taken out Letters of Administration which is no consideration at all for the Defendant was not lyable to be sued as Administratrix until she had taken out Letters of Administration except there were a cause depending as here is not And he cited Hob. rep Bidwell and Cottons case That if there be a sute commenced though there be no cause for it yet forbearance to sue is a good cause to ground an Assumpsit upon Assumpsit A second Exception was that the Venire facias is not awarded per Curiam nec in Curia Roll chief Iustice held the 1. a good Exception for the Defendant was not chargeable before Letters of Administration taken forth if she do not intermedle with the goods of the Intestate and it doth not appear here that she did neither is the Defendant compellable to take forth Letters of Administration for they may be granted to the next of Kin if the Ordinary pleaseth according as the Statute ordains Ierman Nicholas and Ask Iustices to the same intent thereupon the rule was reversetur nisi c. But because Day being of Councel on the other side took some Exceptions to the writ of Error and the retorn thereof It was adjourned Staples Hill 1650. Banc. sup THe Court was moved to supersede a scire sacias brought by a prisoner of the Marshalsea For a Supersedeas to a Scire sacias upon the late Act for discharging of poor prisoners because the Certificate of the cause for which he was a prisoner was false and so the procéedings erronious for the party was in execution for Trespass which is not within the Statute made for the prisoners 2ly Because there was no due notice given to the party at whose sute he lay in execution as the Statute doth direct there should The Court ordered to view the Certificate 〈◊〉 Den uneâ— and to file it otherwise there should be no proceedings upon the scire facias and directed the party to demur upon the scire facias if it be not good because the matter alleged cannot be pleaded to it Custodes against Arskot Hill 1650. Banc. sup MAynard moved the Court for one Arskot that was outlawed for murther For time to bring a Writ of Error and had leave to bring his writ of Error that he may have longer time to bring it because the King uses to sign the writ and the Parliament had not ordered who shall do it now and therefore the Attorney General must advise with the Parliament about it which cannot spéedily be done Thereupon time was granted till the Attorney could conveniently do it Newcomin against Leigh Hill 1650. Banc. sup Pasch 16â—0 rot 52. LEigh did assume and promise unto Newcomin Whether a good Assumpsit that if Newcomin would take one Loe for his Debtor in the room of one Cooper and would spare Loe until such a time for the money that then he would pay the money to Newcomin if he did not and upon this Assumpsit Newcomin brought his Action against Leigh The question was whether this were a good Assumpsit And the Court held it was not because it is a collateral thing and he doth not say that he will discharge Cooper and so Newcomin may sue Cooper notwithstanding the Assumpsit For though it may be it was the intention of the parties to discharge Cooper yet it appears not so by the words of the Assumpsit set forth And it was then said by Roll. That if I promise to pay to Iohn a Down a Debt which Iohn a Stile oweth to Iohn a Down Nudum pactum this is nudum pactum Bawsy and Lowdall Hill 1650. Banc. sup Pasch 1650. rot 275. VPon a special verdict in an Action of Trespasse and Ejectment Special Verdict upon the devise of a Copyhold in Fee the case in effect was this A man seised of Copyhold lands in fée devisable by Custom deviseth them in this manner I give and bequeath my lands c. to my son Richard during his natural life and after to the heir of his body for ever Hales of Councel with the Plaintif made these questions 1. whether by the words of the Will a Fee-simple at the Common Law passeth because there is an estate to Richard for life and after
alias Heriots with the appurtenances whereof the said Close called Pipers Down was parcell which tenement and Close were parcell of the said manour and was then and had been time out of mind demised and demiseable in Fee by Copy of Court roll of the said manour did build a new messuage upon the said Tenement and did afterwards by his Letters patents under the great seal grant the office of Keeper and keeping of the said messuage to Iohn Gate for term of his life with all the Lands Tenements c. thereto belonging or adjacent and did also by the same Letters patents give and grant unto the said Iohn Gate amongst other things the Lands belonging to the said new built messuage whereof the said Close called Pipers down was part for Term of his life for the exercising of the said office with an averment in the plea that before that time there was no such office of the keeping of the said house and that the King did not know nor was at the time of the grant enformed that the said Tenement and Lands whereof the said Close was parcell were Copyhold of the said manour After the grant made to Iohn Gate as aforesaid H. the 8. dyed seised of the said manour of the reversion of the said Messuage and Close after the death of Iohn Gate and thereby Ed. the 6. became sofâ—ed of them in like manner and from Ed. the 6. they came to Quéen Mary Then Iohn Gate dyes and after his death Quéen Mary enters upon the said manour and Messuage whereof the said Close was a parcell and afterwards by her Letters Patents under her broad Seal doth grant the Manour and Messuage and Premises unto Susan Tong and her heirs for ever From Susan Tong by mean conveyance the said Manour Messuage and Premises came to Humphry White and his heirs and afterterwards Humphrey White being seized thereof in Fée did by his indenture of lease demise the said Manour Messuage and Premises to Leigh for 60. years to begin from Mich. before the making of the indenture afterward Humphrey White grants away the reversion of the said Manour Messuage Premises to Sir John Branch afterwards Sir Iohn Branch grants this reversion to Vdall Vdall grants it to Bathurst and Bathurst grants it to Thomas Boothby the Ancestor of Thomas Boothby whose Baily doth here make the avowry Afterwards Robert Leigh who had the lease of the said Manour and Premises as aforesaid for 60 years deviseth the residue of this lease then unexpired by his last Will and Testament unto Robert Leigh his Son and dyes Robert Lee the son being possessed of the residue or remainder of this Term for 60. years by virtue of the said Will did at his court held for the said Manour of Chingford grant the said Messuage with the appurtenances and Lands thereunto belonging whereof the said Close was parcell unto Edmund Lee his brother to hold of the same Manour in Fée at the will of the Lord by Copy of Court Roll of that Manour Edmund Lee was thereupon admitted accordingly Afterwards the said lease for 60. years made by Humphrey White unto Robert Leigh the Father expires Afterwards Thomas Boothby who had the reversion of the said Manour and Premises as abovesaid entred as in his reversion upon the said Manour and Premises and dyed seised thereof leaving issue Thomas Boothby his Son Thomas Boothby the Son enters into the said Manour and Premises and claims the said Messuage with the apurtenances with the lands thereunto belonging whereof the Close called Pipers down was parcell and was granted by Robert Leigh unto Edmund Leigh by Copy of Court Roll as aforesaid as parcell of the demaines of the said Manour of Chingford and doth deny it to be Copyhold and to the intent to try the title thereof did by the Avowant his Bailiff distrein the Cattel in the said Close as damage feasant in his soil and Freehold This Case was argued first by Arthur Harris of Lincolnes Inn who argued for the Plaintiff viz. he that brought the replevin and in his argument he made the generall question in the Case to be whether the close called Pipers Down in which the distress was taken were at the time of the distress taken demiseable by Copy of Court Roll or whether the Custom was not destroyed and he held it was demiseable and that the custom was not destroyed and hereupon he made four questions 1. Whether the grant of the new house to Sr. Iohn Gate per nomen officii of keeper thereof were a good grant 2ly Whether the King not being enformed at the time of the grant that the house was Copyhold tenure he was not deceived in his grant 3ly Whether by this grant the Custom was not destroyed 4ly Whether the Kings Patentee hath not the same privilege to grant this house c. again by Copy of Court Roll after the death of Sr. Iohn Gate And as to the 1. of these 4. questions he cited 8 E. 4. by Chock and 21 E. 4.79 and Mich 5 Car. Banc. Reg. Monsons case and Pasc 14 Car. Banc. Reg. Messand and Butterfields Case and 5 E. 4. f. 8. and Dyer 269. Savages Case To the 2d question he held that the King was not here enformed of his right and consequently he was deceived and therefore ought not to be prejudiced by his grant which he should be if he had not liberty to demise this house again by Copy of Court Roll after the death of Sr. Iohn Gate and he said that there are two rights in the King 1. At the Common Law and 2ly a customary right and of this Customary right or his jus concedendi he was not enformed and he cited these books 3 H. 7.10 rep 49.8 H. 625 Br. Ayd 45 4. H. 6.1 2 R. 3. Hunsons Case and he said that the book of 5 H. 7. f. 1. which is objected is not to purpose for the protestation is not well taken 19 H. 6. a protestation is to supply a matter which is not so here 41 E. 3. Fitzh protest 9.22 H. 6.37 Br. protestation 6. Plowd Coment Gresbrooks and Foxes Case and 20 Eliz. Burrell and Holcrofts Case 2ly The King is not enformed here in his grant in matter in Law as he ought to be and therefore his grant shall not turn to his prejudice 1 rep 52.18 H. 8. Lovels Case Pasc 2 Eliz. Sr. Thomas Mores Case 1. rep â—3 16 Jac. Needlers case and whereas it is said that the words ex certa scientia in the patent do declare that the King was enformed I answer that those words do intend no more but that the King was enformed of matters of fact and not of matters in Law and the Kings grant shall only be taken secundum intentionem and whereas it may be objected that by the granting of the Estate for life unto Sr. Iohn Gate the custom is destroyed I answer that this being in the Case of the King it is an extraordinary Case and not
is a Iudgement well given Plea and it is too late to assign it for Error But the Court advised Postea Kerman against Iohnson Trin. 1651. Banc. sup Trin. 1649. rot 153. KErman brought an Action of Trespass and Ejectment against Johnson Special verdict in Trespass and Ejectment and upon a special Verdict found the Case was this A man devised to I. S. his whole estate paying his debts and Legacies and dies possessed of Goods and Chattels to the value of five pounds only and dyed also seised in fee of divers lands and was indebted forty pounds at the time of his death The question was whether the lands passed by the Devise Barry of Councel with the Plaintif argued that the lands did pass because that wills ought to receive a favourable construction And 2ly The intent of the Testator is to be considered who by the words all his estate did mean to comprehend as well his land as his goods and chattels for there is no restraint of the words here 7 Ed. 3.10 The word estate is a word of large extent and extends as well to the real as personal estate if it were in Case of grant much more in the case of a Will And there is another word used here to explain the Testators meaning to be to devise his lands as well as his goods and that is the word All which comprehends all manner of estates without exception Next if the land should not pass his debts and Legacies cannot be paid according to the express intent of the Testator and the intent of the party ought to be satisfied although the words be not proper because it is in a will though it might be other wise in a grant And whereas it is objected that the Iuries finding of the value of the debts and Legacies is to no purpose because the will cannot be helped by the averment of the Iury. I answer that averments if they stand with the will may be received to make the Testators intent to appear But besides this is not an averment only but a true stating of the Case to the intent to find out the Testators meaning 3ly The devisee of the land is not made Executor but Trustee or Devisee this is since the Statute of Devises 32 H. 8. The 2. question is what estate the Devisee hath in the lands I conceive he hath Fee simple because he hath all the Estate which must be the largest and that is Fee-simple Hob. rep pl. 280. The word whole goes both to the quantity and quality of an estate also And here the consideration that he is to pay all his Debts and Legacies is a good consideration to pass the fee-simple of his lands and though there may be a surplusage after the Debts and Legacies paid this hinders nothing for it is his intent that the Devisee shall have that surplusage and so he prayed Iudgement for the Plaintif Twisden for the Defendant argued that either nothing passeth by the Will or if any thing then only an estate for life passeth He agreed that improper words may sometimes pais things yet sometimes proper words will not passe things viz. if the intent of the party appear to be contrary 24 Eliz in the Earl of Northumberlands case A Devise of all his Iewels did not pass his Collar of Esses and his Iewels annexed to his Parliament Robes and the words here are not that he deviseth all his estate in his lands but his whole estate generally and if the words here should pass the lands yet the fee simple passeth not but only an estate for life in the lands which do pass nor do the words paying his Debts and Legacies cause the Fee-simple to pass for here is no likelyhood of any loss to the Executor for the words are not that he shall pay all his Debts and Legacies and if he be an Executor as the contrary appears not he shall not be charged with more than the personal estate will discharge The words do amount to a Condition and it is not found that there are any Debts or Legacies paid and so it is not performed and the heir may well enter into the lands in question for the Condition broken 2ly The Verdict doth not find how the lands are held whether in Socage or by Knights service and so it appears not whether they can be devised or no and they shall not be intended to be Socage lands Dyer f. 207. Hill 32 El. rot 2. and Pell and Browns case 3ly It is not found that the Testator dyed seised of the lands as it ought to have been and he prayed Iudgement for the Defendant Special Verdict Roll. chief Iustice to the second Exception to the Verdict answered that in a Special verdict it is not necessary to find whether lands be held in Sorage or by Knights Service and he said that the words in the Will do goe to the nature and extent of the estate as Barry urged and he doubted how the verdict shall supply the Will if it be defective for that is only to make the intent of the Will certain Adjourned to be argued again Postea Marshal against Ledsham Trin. 1651. Banc. sup MArshal as Administrator brings an Action of Debt for rent Arrest of Judgement in Debt and upon a Verdict found for the Plaintif the Defendant moved in Arrest of Iudgement and takes exception that the Plaintif had not shewn by whom the Letters of Administration were granted unto him as he ought to do but only says that the Administration debito more commissa fuit But it was answered that it is too late to move this Exception after a Verdict for the Iury have now found that the Administration was duly granted and the Letters of Administration were produced in Court and therefore not necessary to shew who granted them Declaration and it was said that in a Declaration it is not necessary to shew by whom Letters of Administration are granted or to say they were granted by him Cui pertinuit or per loci illius Ordinarium But in a Plea in Bar it is otherwise for this is not the cause of the Action Plea and effect of the sute but to shew they have been in the Spiritual Court Judicium nisi pro quaerente was afterwards given Antea Giles against Timberley Trin. 1651. Banc. sup Mich. 1650. rot 176. AN Ejectione firmae vi et armis was brought in the Common Pleas Error to reverse a judgement in an Ejectione firmae and a judgement given for the Plaintif upon a nihil dicit and in a writ of Error brought in this Court to reverse the judgement the Error assigned was in the judgement which was entred thus Ideo consideratum est quod recuperet and the word Capiatur was omitted which ought not to be because the Action is a Trespass vi et armis Roll chief Iustice said It is an ill course they use in the Common Pleas to enter
the judgement so in this Action Iudgement for by this course the Plaintif shall gain his possession of the land and the Defendant cannot bring his writ of Error until the writ of Enquiry returned and the Iudgement perfected Error which it may be will never be for when the Plaintif hath gotten possession of the lands he will little regard the damages Therefore let the judgement be reversed Antea Elyott against Blague Trin. 1651. Banc. sup ELyott brought an Action upon the Case against Blague for speaking these words of him viz. Thou art a Bastard getting Rogue Arrest of Iudgement in an Act on for words and hadst a Bastard at Oxford and art a pocky rogue and for ought I know thou hast filled my Bed full of the French pox and no such pocky rogues shall lie with me Vpon not guilty pleaded and a Verdict found for the Plaintif it was moved in Arrest of Iudgement that the words were not actionable because some of them were adjectively spoken and others uncertain and some of them clearly not actionable But Twisden answered that if the words were taken together as they were spoken they were very scandalous and actionable and cited one Colyers and Lydyers case 1 Can To which the Court agreed and ruled the Plaintif to take his judgement except better cause should be shewn Custodes against Iinkes Trin. 1651 Banc. sup SErjeant Bernard moved to discharge an Order of Sessions made against a Feme Covert to keep a Grand child of hers To discharge an Order of Sessions Order of Sessions because a Feme Covert was not bound by such an Order Roll chief Iustice answered that her Husband is bound to keep his wifes Grandchild by the Statute but in regard that the Husband is not charged by the Order but the wife who is covert is only charged Therefore let the Order be quashed Trotman against Standard Trin. 1651. Banc. sup Trin. 1650. rot 1768. IN an Action upon the case a special verdict was found Special verdict in an action on the case upon which the case fell out to be this Two being seised of lands in Fée did make a charter of feoffment unto two others and to their heirs and in the deed was a letter of Attorney to enter into the lands in the name of the seoffors and make livery and seisin according to the effect of the deed and livery of seisin was made to one of the Feoffees by the Attorney in the absence of the other Feoffee The question was whether here were a good livery and seisin or not 2ly Whether the letter of Attorney was good or no in regard it had false latin in it for the letter of Attorney was made by two and the words of it are pro me in nomine meo to make livery which are words of the singular number whereas they ought to be of the plurall Hales as to the 2d question held the letter of Attorney good enough because the authority given to the Attorney proceeds from both the Feoffors and therefore the words shall be intended to be the words of both of them as spoken by them severally And he also argued that the letter of Attorney was well executed to both the Feoffees because it was by deed and he cited 15 E. 4 f. 18. and he said if the livery had been made by the Feoffor himself it had been good without question and there is no difference between that and our case because it is made according to the effect of the deed and the Feoffee who is present is Attorney for the Feoffee that is absent to receive livery for him and the effect of the letter of Attorney is executed although the words are not Cooks Lit. f. 5. and Hoxon and Polts case in the Exchequer 34 Eliz. Boltons case Livery made to the husband was held a good Livery to the wife also Latch of Councel on the other side made two questions 1. Whether here was a good authority 2ly Whether it was well executed For the first he argued that here was no authority given to the Attorney to enter into the lands in the name of both the Feoffors for the words are that he should enter in nomine meo which cannot comprehend both of them the words being in the singular number and he agreed that Livery made by the Feoffor himself to one in the name of both had been good but here the livery is by Attorney and an Attorney hath nothing but a bare authority given him which ought to be strictly pursued especially it being to passe away an Estate He also took exceptions to the special verdict and said that the tryal upon which the verdict was found was directed out of the Chancery to discover a fraud and the verdict finds nothing according to the direction and so it ought to be set a side besides the verdict in it self is incertain for it is of 300 Acres of land generally which is incertain and so the Plaintiff can have no Iudgement for the Declaration warrants not the verdict for the Declaration mentions Houses and Cottages besides the 300 Acres of land 2ly The verdict doth not find the date of the Indenture and the Title to the land is to commence a die datus Hales answered 1. It shall be intended the day of the date 2ly It shall take effect after the delivery if there be no day of the date expressed And to that exception to the verdict that there are not so many Acres conteined in it as are expressed in the Declaration he answered that the Iudgement shall go to all which is land in kind only and shall not extend to Houses and Cottages and there appears to be a residuum or surplusage Verdict Roll chief Iustice said that it is incertain by the verdict what lands are meant for there are 400 Acres of land and four messuages and four Cottages and 40 Acres of medow in the Declaration and so there appears to be a residuum besides the land found in the verdict which makes it to be incertain what is found And though it should be a verdict for part and be uncertain for the rest although the Plaintiff will relinquish his damages for the rest this will not help it for there must be two Iudgements and the verdict is ill as to that which is found yet he held that it might be good without relinquishing the damages at all because the verdict is good for so many Acres as are in the Declaration and it shall be intended that the Iury mistook the number of the Acres and intended by the verdict no more than the arrable land Ierman and Nicholas Iustices doubted whether there be a verdict at all because the Iury have not found the things conteyned in the Declaration Roll chief Iustice and Nicholas mutate opinione held the verdict good but said it would have béen otherwise upon a demurrer and it was said that if one declare for 40 l. and the
and upon it the case sell out to be thus Special verdict in an ejectione firmae A having lands in see simple and also goods and chatels to the value of 5 l. only in Tavestock made his Will and devised to his wife totum statum suum viz. his whole Estate paying his Debts and Legacies and his Debts and Legacies did amount to the value of 40 l. Hales made 2 questions 1. Whether the lands passe to the wife by the Will or not 2ly If they do what estate passeth to her in the Lands For the first he argued that the lands do passe to the wife 1. Because the generality of the words do include the lands as well as the goods for the words are his whole Estate so that nothing is excluded 9 E. 4. a release of all Actions is held a release of all Actions that the party had in all his capacities 2ly The ordinary maner of spéech doth shew that he intended to devise his lands as well as his goods Riches case Mich. 45. Eliz. C. Banc. A devise of all his rents was held to passe all the partyes lands Also the subject matter in fact doth prove this to be his intent and although here is not a collateral averment to prove the intention but a collateral proof to declare the Testators intent this may be admitted to ascertain the Court of his meaning as it is in the case of proving an Act of Parliament In the Lord Cheneys case an averment standing with a Will was accompted allowable though an averment against a Will be not In Cooper and Lanes case 35 Eliz. a devise seigniori puero where the Testator had a Son and a Daughter was held a good devise to the Son although puer signifies as well a Daughter as a Son and the Daughter there was elder than the Son and Hill 8. Car. In Bartler and Rodes case in B. R. a devise of all his lands in Dale if he had leases as well as lands there passed not the leases For the 2d point he argued that a fee simple passed 1. Because his whole Estate is devised and that is to be applyed as well to the lands as to the goods 2ly Because in regard that there is a consideration for it to wit that the wife shall pay his Debts and discharge his Legacies and whereas it is objected that it is not said she shall pay all his Debts I answer that it shall be so intended Here is land and goods mentioned and not land only and it is found that the goods only are not sufficient to pay the Debts and also the goods were liable to the payment of the Debts without this expression in the Will and therefore the land must be intended to be devised And for the verdict it is not material to find the lands to be held in socage for they shall be intended to be so held because it is the most antient Tenure for where the Law creates a Tenure it shall be socage Tenure 2ly Lands may possibly be deviseable although they be not held in socage for if they be neither held by socage nor chivalry yet they are deviseable Dyer 307. Neither is it material to find the Debts and Legacies paid for it is a condition here an not a limitation and there is a person to take advantage if the condition be broken this is a special verdict the breaking of the condition if it had béen broken would have appeared upon evidence therefore it is not necessary to aver it it is in case of a Fee simple which is an Estate intended to continue Devise Roll chief Iustice held that the lands did passe for so he said the common understanding imports and the words do go to the value of the estate 1. It comprehends the thing to wit the land 2ly The extent of the Estate given viz. Fee simple and so it shall be here intended and the words paying his Debts and Legacies doth enforce this construction for they are to be paid presently which cannot be if the lands passe not in Fee and so the aberment it is but to supply the meaning of the Testator and stands very well with the Will and is not so collaterall as it is in Cheyneys case And for the verdict the lands shall be intended to be socage lands Intendment as being the most Common Tenure except the contrary were shewed on the other part Denham and Bakers case Mich. 24 〈◊〉 entred Trin. 23. rot 12.80 and the words paying his Debts and Legacies are words of condition and not of limitation Ierman ad idem and said Condition̄ Limitation when we say a man is a man of a great Estate we mean his Estate in lands as well as goods Nicholas and Ask Iustices to the same effect but Ask said he doubted of the verdict because no Legacies are found and this is part of the case Iudicium pro querente nisi Antea Pickering and Emma Trin. 1651. Banc. sup EMma obteined a Iudgement against Pickering For a supersedeas upon an audita querela brought and had satisfaction upon it and gave a release to the Defendant yet afterwards takes out a capias ad satisfaciendum against him whereupon he brings his Audita querela and moves the Court that he may have a supersedeas to the capias ad satisfaciendum The Court desired to see the release and upon view thereof The rule was that the party should proceed in his audita querela but said they would grant no supersedeas because the release was ambiguous Custodes c. against Rivett Trin. 1651. Banc. sup VPon a rule of Court to shew cause why an Attatchment should not be granted against one Cause why an Attatchment should not be granted for proceeding to a tryal in an iuferior Court notwithstanding a habeas corpus directed to remove the cause An Affidavit was made that the proceeding to tryal was because it was supposed the habeas corpus was against the Statute of 21 Iac. The Court answered you ought to have returned this matter upon your return and not to have proceeded against the habeas corpus but let the Secondary examine the matter and then move again Return But it is dangerous to execute the Iudgement if the Statute be not against the habeas Corpus The Custodes against my Lord Morley Trin. 1651. Banc. sup THe Court was moved on the behalf of the Lord Morley for a Certiorari to remove an Endictment preferred against him at the Sessions of Peaco at Hicks Hall upon the Statute against hearing of Mass For a Certiorari to remove an Endictment The Court answered that they would advise but that they did not see how a Certiorari could be granted at the prayer of the party but they said at the prayer of the Councel for the State it may be granted Baker against Smith Trin 1651. Banc. sup BAker brought an Action upon the Case against Smith and
in London and the Bill was found against him But Roll chief Iustice answered It cannot be granted upon a motion Good behaviour but you must prefer Articles against him here upon Oath and then you may move for it and if there appear cause in the Articles it shall be granted Mich. 1651. Banc. sup THe Court was moved for a writ to swear one in the Office of a Maior For a Writ to swear one in the Office of a Maior of a Town to which he was elected for the Borough of Trevenny in Cornewall because the old Maior did not swear him in due time as he ought to do but did adjourn the Court before it was done Roll chief Iustice answered that there is no president to swear such an Officer yet ordered that notice should be given to the Town and presidents to be brought into Court if any were to warrant it Whitway against Pinsent Mich. 1651. Banc. sup Pasc 1651. rot 61. A Man made a lease of lands for years by deed Demurrer to a plea in Covenants and covenanted that the Lessée his Assigns should enjoy them during the Term the Lessor made the Defendant his Executor dyed The Lessee assigns over his Term a Stranger enters upon the Assignee the Assignee takes 40 l. in satisfaction for his being ejected of the Assignor and afterwards brings an Action of Covenant against the Executor of the Lessor the Defendant The Defendant pleads the acceptance of the 40 l. of the Assignor in satisfaction of the wrong done him in Bar of the Action and to this plea the Plaintiff demurred Bar. The question here was whether the Action of Covenant did lye against the Defendant since that the Plaintiff had received 40 l. of his Assignor in satisfaction Roll chief Iustice said that here is a double Covenant one of the Lessor and the other of the Assignor and therefore the party may have two Actions Action and therefore he is not here barred to bring this second Action though he have barred himself by the acceptance of the 40 l. from bringing an Action against his Assignor and the Defendant hath not pleaded that the 40 l. was given in satisfaction of both the Covenants for then it had been otherwayes Ierman Iustice to the same effect That they are several Covenants by several deeds and both the parties are severelly bound and satisfaction given by one of them is not the satisfaction of the other And he said if Lessee for years assign over his Term the Lessor having notice thereof and he accept the rent from the assignee he cannot demand the rent of the Lessee afterwards yet he may sue other Covenants conteined in the lease against him as for reparations or the like The rule was for the Plaintiff to take his Iudgement nisi Mich. 1651. Banc. sup SErjeant Glyn moved for a certiorari to remove an endictment of forcible entry that was once before removed hither For a certiorari to remove an endictment and after sent down by a procedendo because the Iustices below will not grant restitution Roll chief Iustice answered There is a plea put in and in such case it is not usual to grant a certiorari yet it may be that it may be granted therefore let the other side shew cause on Monday next why it should not be granted Cantrell against Stephens Mich 1651. Banc. sup CAntreli brought an Action upon the case against Stephens for stopping his way in a Meoow called Madbrook in the parish of Redriff in Kent Arrest of judgement for an Action upon the case for stopping a way upon not guilty pleaded and a verdict found for the Plaintiff It was moved in arrest of Iudgement that the Plaintiff as Lessee to the Haberdashers company of London claimed to have a way for them whereas they having let the land cannot have the way but the Lessée in possession 2ly The prescription is not rightly applyed for it ought to be for them to have a way pro tenentibus et occupatoribus suis which is not so here Twisden answered it shall be intended Tenants and Occupyers to the Haberdashers though it be not said suis Latch said that a prescription per que estate is good in an Action upon the Case because no land is claimed and Green on the same side said the exception taken was helped by the verdict Wild on the other side said that it doth not appear that the Tenant who brings the Action comes in by the Haberdashers who claim the way and so he cannot prescribe to have it Prescription and the prescription ought to be laid pro tenentibus subtenentibus which Roll chief Iustice denyed and said that it is laid that the Haberdashers were seised in Fée postea huc usque and so they have the Fée at the time and may prescribe but it had been better for the party to have shewed that he was their Tenant but it being after a verdict the question is whether it be not helped Vpon reading the Record Roll chief Iustice observed that it appeared not whose Occupyer and Tenant the Plaintiff is but only by way of argument but said the question is whether the verdict do help it and he inclyned it did not Verdict because the Action is brought by the Tenant who hath not entitled himself to the Action for he hath made only a title to the way in the Haberdashers Title but hath derived no Estate from them to himself At another day Roll chief Iustice said we must not take things by intendment and here is a failer in the very gist of the Action for the Plaintiff hath not entitled himself to the Action for he hath no interest for it appears not how he is Ocupyer of the land for he doth not say he is Ocupator suus and as he hath laid the Declaration the Company ought to have brought the Action Ierman Iustice to the same effect and said that upon a demurrer it had been cleerly naught and the verdict here doth not help it for no title appears for the Plaintiff and the verdict cannot give him that he had not before Nicholas and Ask Iustices to the same effect Roll If it had been Ocupator suus I doubt it would not make the Declaration good because it shews not by what title So The rule was nil capiat per billam nisi Tayler against Web. Mich. 1651. Banc. sup Hill 1650. rot 240. IN an ejectione firmae upon a lease for 7 years there was a special verdict found Special verdict in an ejectione firmae and the questions in the Case grew upon the words of a Will that were false orthography viz. I do make my Cosen Giles Bridges my Solle Ayeare and my Yexecutor meaning my sole Heir and Executor Powis of Councel with the Plaintiff held that the Will was good to make Giles Briges the Testators Heir and Executor notwithstanding the mis-writing of the words
the Arbitrators have all of it to agree in and till it is ended the Vmpire hath no power at all otherwise the submission would be repugnant in it self The rest of the Iudges concurred in all and so ruled That the Plaintif all capiat per billam nisi Theoballs against Newton Mich. 1651. Banc. sup ONe was sued upon the Statute of Inmates and the distringas jurata bare date on a Sunday and out of Term and so is erronious The question here was whether it be not helped by the Statutes of Ieofails of 18 Eliz. and 21 Iac. Roll chief Iustice held Ieofails that the Statutes extend not to penal Laws although it be ambiguously penned nor to any processes grounded upon them for the Proviso exempts the Original action and by consequence all processes depending upon it are excepted Venire de novo so that here is no good tryal but there shall be a venire de novo nisi Tayler and Webb Mich. 1651. Banc. sup THe Case of Tayler and Webb which arose upon a special verdict upon these words of Will Special Verdict upon the words of a Will viz. I make my Cosen Giles Bridges my soll ayere and yexecutor was again moved and argued by Hales and he made three questions 1. Whether any estate passeth by the words of the will 2ly If any what estate passeth 3ly Whether the false Orthography doth hurt the Will For the first he said that by making one his sole heir his land passeth to him The word heir is to be considered either in relation to an Ancestor and so one cannot make one his heir or it may be considered in relation to a thing to be inherited to wit lands or tenements and so one may make another his heir and thus a Custom may make one a mans heir as it is in Borough English and an accident may thus also make one a mans heir as it is in the Case of possessio fratris Coundens case Hob. Rep. Case 947. And here it is all one to make one his heir and to make hint heir of hislands and the reasons are First the word heir here cannot have any other relation than to the Testators lands for he cannot make him his heir otherwise and the words may be more reasonably intended so 2ly The words carry in them the plain intention of the Devisor that the party should have his lands although the words are not very proper â— H. 7. A devise of lands to his son after the death of his wife passed an Estate for life to the wife although no such Estate was expressed in the Will so here although no expresse Estate of land be devised yet the Devisee shall have the lands by the intent of the Devisor 3ly In ordinary speech if one make such an one his Heir it is intended that he gives him his lands 8 Car. in the C. B. in Spurt and Bents case A devise of his inheritance was held a devise of his lands and Trin. 3. Iac. in Terryes case A devise of all his rents in tayl passed his lands because in vulgar acceptance it is the rents of lands and in Pits and Sands case in this Court A devise of all his free lands in Holford did passe a portion of Tithes and in the case of one Iohnson a devise of all his estate passed all his lands And the words cannot bear the fence to make him Executor according to the Civill Law as hath been objected for the Will shall be intended as it is to be an English mans Will and so the word Heir in it shall he interpreted according to out Law and not the Civill Law and even in the Civill law to make one his Heir doth convey unto him all his lands for he is haeres testamentarius although not haeres legitimus And in this Will here are two expressions for the party is made Heir and Executor which two words cannot signifie one thing for that would be an idle expression 4ly There are some clauses in the Will which shew the intent of the Testator was to convey his lands if it were needful to make use of them 1. There are several annuities for the Devisee to pay 2ly He directs him where the conveyances and assurances of his lands were laid up which plainly shew he meant he should have his land 3ly The words Heir and Executor are joyned together to shew that he gives him all his lands and goods else one of the words must be imperfect and ineffectual which shall not be intended For Authority 7 E. 6. Br. devise 38. by devising that one Son shall be Heir to the other it shall be intended of lands so in construction of law it shall be here intended that the Devisor made him Heir of his lands Hob. Reports in Sparkes and Burnells case William and Anthony shall be each others Heir and it is not said of land yet adjudged that it shall be so meant and so is it in our case and if I have lands in see simple and make one my heir it shall be intended that he shall have my lands in see simple although I say not that I make him Heir of my lands For the second question the reasons before expressed do also shew that the lands are passed in Fee as it is in Purnells and Hambletons case for the word Heir shall relate to the same Estate that the party had in the land who makes the other his Heir 8 Iac. Inkersals case For the 3d point whether here shall be any good devise at all by reason of the false English he said it was all one and to as good effect as if the words were all true English and neither the incongruity nor the insufficiency of the words shall hurt the Will as it is pretended For 1. This is not in case of pleading or of writs but in conveyance of lands It is true that in the former it doth hurt because writs and pleadings may be amended if they be naught but it is fatal in conveyances for they cannot be amended as in Trotman and Standards case Trin. 1651. in this Court it was held that impropriety of words shall not hurt it they can admit of a good construction Desinet in piscem mulier formosa superne 2ly This is in a Will which is such an instrument that is much favoured in Law and therefore to be favourably construed 3ly This is an English Will and admits of much variety of dialects and therefore is not to be critically interpreted Neither are there here any insignificant or missignificant words as hath been objected but significant for the sound of the word as it is written is the same as if it had been rightly spelled for Ayer and Heir sound both alike As in 3 H. 4. f. 4 Baxter and Baxster sounded alike 2ly If the word Heir might receive any other sence yet it cannot do so here because there are other words joyned to it to declare and signifie that the
Court Twisden on the other side confessed the Books were so but here the Battery is not apparent and the wound is internal and not to be viewed by the Court. Roll chief Iustice said 3 things are considerable 1. whether the Court can increase the damages 2ly Whether the wound be apparent and 3ly Whether the damages given be too small The Court upon view of the party and examination of Chirurgions and Witnesses on both sides upon Oath did conclude that they might increase the damages and that the wound was apparent and that the damages were too small and therefore they increased them to 400 l. and said they would not encrease them more because they could not inquire into all the circumstances of the fact as the jury might but they thought fitting to encrease them in some proportion because the offence was great and such outragious Acts are not to be slightly punished VVallis against Bucknal Hill 1651. Banc. sup VPon a special verdict found in an Ejectione firmae the case sell out to be this Special Verdict in an Ejectione firmse A Copyholder of inheritance made a Letter of Attorney to two joyntly and severally to surrender his Copyhold lands in Fee to certain uses after his death according to the Custom of the Manor The question made by Ellis of Councel with the Plaintif was whether the Custom was good or not he argued that it was not a good Custom In Sir Iohn Davis Reports it is said a Custom must be reasonable and a Custom may be reasonable when it is but against a particular Law and not a general Law but the Custom here thus to convey land is against a general Law Particular Customs may be against publique interest pro bono public but if they be not as in our case they are not they are not good Pro bono publico Next an authority given ought to be Countermandable and to determine at the death of the party but this is not so and therefore it is no good authority 19 E. 3. f. 5. 2ly None can give an authority to another to do a thing which he could not do himself but here it is otherwise and therefore it is not a good authority 3ly By the death of the Copyholder the lands are setled in the heir and this authority given shall not devest them and this is not like the surrendring of lands into the hands of the Lord for a surrender cannot be revoked but this authority is revokable Next the Verdict doth not find that the 2 Attorneys are Customary tenants but only by way of recital which is not good nor doth it appear they were customary tenants at the time of the admittance and here is not found any possession or title in the Defendant and so the Plaintif having primer possession the Defendant is guilty neither is it found that the customary Tenant had see-simple in the land And if he had but an estate for life he could not make such a letter of Attorney Also the authority given is not warranted by the Custom set forth Wilmot of Councel with the Defendant said That this authority here is supported with a special direction which may survive the party that gives it 1 H. 7.8 And an authority may survive the party that gives it else how can an Executor sell lands by the authority given unto him 21 E. 4. f. 8. 31. E. 1. Fitzherb 45. and as for the heir he hath neglected his advantage it he had any and cannot now take it But besides the authority here given is more than a bare authority for it is backed with circumstances of time and person and here is also a Custom to support it and this Custom is a reasonable Custom for it is but to enable a man to dispose of his own lands and there are far more unreasonable Customs than this allowed in our law as the Custom of Kent for one of the age of 15 years to be enabled to sell his lands and this Custom is not against any positive rule of Law for the custom is to create the authority to begin after his death and so it is not to determine by his death for till then it begins not and the Custom here is but to alien lands which is no strange thing and it is extended but within a small compass of land and so cannot be very prejudicial to the publique And Bambridge and Whaddons case 17 Car. in this Court cited on the other side doth differ from this case for tâ—ere was no Custom to support it And it doth appear here by the Record that Dalby the Attorney is a customary Tenant and the admission here is found to be secundum consuetudinem Manerii And one cannot gain a Copyhold estate by disseisin and so here can be no primer seisin intended and it is found the Copyholder is seised Roll chief Iustice said It will be hard to maintain the Custom Custom if it be not found that the party was seiâ—â—d in see of the Copyhold lands But 2ly it is not here found that the land is demisable according to the will of the Lord and so it may be free land then the custom doth not reach it Neither is it found that the 2 Attorneys were Copyhold Tenants and the primer possession here will make a disseisin by the Defendant if the Custom be not well found and then it is for the Plaintif and I cannot see how the Custom can be good it being against the rules of Law for a man cannot devise a Copyhold and here the case is worse Devise but he may surrender to the use of his last Will and Testament At another day Wilmot to the Exception taken That it is not found that the two Attorneys were Tenants of the Manor said there is so much found as shall make them be presumed to be Tenants of the Manor for it is found that the party is admitted secundum consuetudinem Manerii which cannot be a good admittance if they were not Tenants Roll chief Iustice answered to be admitted secundum consuetudinem goes â—o the Admittance not to the Letter of Attorney But we will advise At another day Twisden prayed judgement for the Plaintif and insisted upon the Exception that the two Attorneys were not found customary Tenants for one of them is not mentioned at all and the other is found so only by way of recital and so they have not entitled themselves to the Custom and then the Defendant hath no title The Court ruled to shew cause Saturday following why the Plaintif should not have judgement Antea Custodes against Tawny and Norwood Hill 1651. Banc. sup TAwny and Norwood were jointly endicted for blasphemous words severally spoken by them Endictment for speaking blasphemous words upon the late Statute made against blasphemy and were convicted the parties being removed hither by Habeas Corpus It was urged that the Endictment was not good because it was joynt whereas the words being
his guardian and therefore let the Iudgement be reversed nisi Fortune against Johnson Hill 1651. Banc. sup THe Court was moved for an attachment against Iohnson upon an affidavit For an attachment for putting one out of possession that he had ejected one out of possession that was put in by a habere facias possessionem and that in a very riotous manner and had imprisoned the party so put out of possession and others Windham on the other side by way of answer said that the party came into the land by virtue of an eign Iudgement and an extent upon it Roll chief Iustice answered here is title against title therefore take your course in law for we will make no rule in it Crosthwayt and the Hundred of Lowdon Hill 1651. Banc. sup CRosthwayt brought an Action upon the Statute of Winchester of robberyes Arrest of Iudgement in an Action upon the Statute of Winchester for robbery against the Hundred of Lowdon for being robbed of 160 l. and had a verdict against the Hundred It was moved in arrest of Iudgement that the Action upon the Statute did not lye for the party that brought it for it appears that he was not robbed but that the mony was taken out of a portmantle which was carryed by the postboy and that only the Plaintiffs hand was upon one end of the portmantle so that the post-boy was robbed and not the Plaintiff But Roll chief Iustice answered Robbery Possession there is no question but that this was a robbery of the Plaintiff and it is all one as where my Servant is robbed in my presence and there the goods shall be said to be in my possession and so is it here and therefore let Iudgement be entred nisi Tayler and Web. Hill 1651 Banc. sup THis case formerly argued at the Bar and broken on the Bench Special Verdict upon the words of a will and some opinion delivered in it was again moved by Maynard and argued by him And he said that by the Will no land passeth because lands are not mentioned in it neither is there any necessary implication that the Testator intended to devise his lands for the making one his Heir and enjoyning him to pay an annuity doth not convey the lands to him and the Will doth not say that he makes him his Heir of his lands but generally his Heir which by the civill Law may be of goods and for the enjoyning him to pay the annuity this may be out of other lands in consideration of the personal estate given unto him In Danyel and Vblies case a gift made by a Feme coparcener of her purparty of land did not convey the lands in Fée In Marshes case the Father gave his lands to his two Sons to be equally divided it was adjudged there that only an Estate for life passed and here is nothing at all expresly given In Gilbert and Withers case Mich. 20 Iac. It was adjudged that there ought not to be made such a construction of a Will as is not agreable to Law And this is only a logical Will by way of argument and not a grammatical Construction or Interpretation and positive Will Roll chief Iustice answered to make a construction of a Will where the intent of the Testator cannot be known is intentio caeca sicca but here although the words of the Will be not proper yet we may collect the Testators meaning to be by making of the party his Heir that he should have his lands and it is all one as if he had said Heir of his lands and here he not only makes him his Heir but his Executor also Will. and therefore if he shall not have his lands the word Heir is meerly nugatory and to no purpose for by being Executor only he shall have the goods and as it hath been observed he is in this case haeres factus though not natus Ierman Iustice to the same effect and said that the word Heir implyes two things 1. That he shall have the lands 2ly That he shall have them in Fee simple Nicholas and Ask Iustices concurred and so it was ruled that Iudgement should be given for Sir Iohn Bridges the Devisee nisi Lockoe against Palfriman Hill 1651 Banc. sup Hill 1651 rot 1002. VPon a special verdict found in an ejectione firmae Special verdict in an ejectione firmae the case fell out to be this Tenant for life the remainder to Baron and Feme and their Heirs Baron and Feme suffer a recovery The question was whether the Heirs of the Feme were bound by this recovery because the Feme being covert it was conceived she was not Tenant to the praecipe because it appears not she was examined and so nothing was recovered from her It was argued that this recovery did bind the Feme 1. because if a precipe be brought against one who hath nothing in the land the writ only is abatable Fitz. Tit. Droyt 29. Next an Estople with recompence excludes not only parties and privies but also strangers as it is in Shellyes case and 3 Iac. C. B. in Duke and Smiths case 15 E. 4 f. 28 In 43 Ed. 3. f. â—8 was the first mention of examination of a Feme upon a Recovery and she shall be intended to be examined here if it be requisite for it is not found she was not examined and in Br. Abridg. recovery in value 27 23 H. 8. It is held that a Feme Covert is barred by a Common recovery and this hath been the continual practice since that time and whereas it is objected that a colourable recovery doth not bind a Feme Covert it is answered that this is not a colourable recovery but a judicial matter of Record and is brought upon an original and there is an intended recompence to the Feme and to urge that there is no Tenant to the praecipe is an objection which reaches to the common practice of assurances and therefore not to be admitted and in time they might have counterpleaded the voucher but now they cannot avert this matter against the Record 19 E. 3. estople 9. and though the Feme be not examined yet she shall be bound by this recovery though in a fine it is otherwise where there is no recompence in value as here there is and in a fine the Iudge ex officio is bound to examine the Feme but not in a recovery nor is there any practice of it in Law 13 Ed. 3 Iudgement 29. A partition made by writ shall bind a Feme Covert because she hath a recompence so is it upon a partition made upon Record in Chancery And by the Barons surviving the Feme here the recompence both not survive to the Baron but shall go to the Heirs of the Feme Br. recovery in value 27 2 Iac. C. B. here is a reall Estate in the Baron and Feme Hales on the other side made the question to be whether by a recovery
be undestood eight hangings Roll chief Iustice A pair is properly when one of the things so called cannot be properly used without the other but yet the words may be also understood so many couple and here you cannot intend the words to mean so many suits of hangings and you might have expressed your meaning by so many pieces of hangings and therefore it seems doubtfull Ierman Iustice Here the words do not expresse the number of the things as they do when you say a pair of Oxen or the like Nicholas as Ierman Ask Iustice A pair is incertain for that word may be meant more than two in number as when you say a pair of cards and a pair of hangings in some places is meant a suit of hangings Roll chief Iustice If it be so then it is more incertain the word hangings may be good enough but how can the number be known Curia advisare vult Afterwards the Court moved the Defendant to suffer the Plaintiff to amend his Declaration and to plead anew and to consent to a new tryall Askwiths Case Hill 1652. Banc. sup THe Court was moved to quash an order of Sessions made at Durham against Askwith Motion to quash an order of Sessions for not serving the office of a Constable or finding an other able person to serve the place for him being elected according to the custom of the place where he was elected to serve The Exception taken was that it is not shewed that he was elected at a Court Leet and the Sessions have no power to elect a Constable Roll chief Iustice He is a Constable elected by a by-Law By Law it is not necessary there should be any other election then according to the custom and he must serve in his turn or contribute to the charge for another to serve for him Custom and this is a good custom used in many places and I do find one my self in my turn in one place and make no use of my privilege to avoid it Another exception was taken that the complaint made of the party was that he would neither serve the office nor contribute for another to serve it and the order is only that he refused to contribute and so is not warranted by the custom by which he hath an election to serve or contribute Quashed nisi c. Hill 1652. Banc. sup A Prisoner was brought into Court by a habeas corpus out of the Fleet to the intent to turn him over to the Marshalsea to charge him with an Action here Creditor examined upon oath it his debt were reall whereupon the creditor was examined upon his oath whether the debt was real for which he surmised he would bring his Action and upon making oath thereof the Prisoner was turned over accordingly Nota. Smith against Holyman Hill 1652. Banc. sup IT was moved in arrest of Iudgement in an Action upon the case upon an Assumpsit Arrest of Iudgement in Assumpsit False English and Exceptions taken 1. That the Defendants Christian name was mistaken And 2ly That the jurata was erroneous for it says in a plea of dept instead of a plea of debt and the Iudgement was arrested for dept written with a P. is no word though it sound like debt written with a B. Custodes and Howell Gwin Hill 1652. Banc. sup HOwell Gwin was brought to the Bar being convicted for forgeing of a deed Iudgement against one convicted of forgery and was demanded what he could say why Iudgement should not be given against him Boynton of Councel with the Prisoner moved the Court that in regard there was an information of perjury depending here against the witnesses upon whose Testimony the Prisoner was convicted of the perjury and that the Prisoner doth endeavour to proceed with all the speed that is possible against them in this information that the Iudgement may be stayed in the mean time against him Roll chief Iustice answered if they be found guilty of the perjury they shall be punished but we will give Iudgement against your Clyent in the mean time which was done accordingly in these words following Iudgement for forgery viz. you are convicted of forgeing a deed by putting a dead mans hand unto it therefore the Court gives this Iudgement against you that you are fined at a hundred pound and shall stand on the pillory two hours before the Hall dore with a paper on your head shewing the nature of your offence Memorandum the party cut off a dead mans hand and put a pen and a seal in it and so signed and sealed and delivered the deed with the dead hand and swore that he saw the deed sealed and delivered Mich. 1652 Banc. sup MRs. Lucy Fotherby was brought into Court to be turned over into the Marshalsea out of the Fleet with an intent to charge her with an Action of debt Against this it was urged that she was a Prisoner in the Fleet A Prisoner turned over committed thither by an order of the Court of Chancery Prisoner But Roll chief Iustice answered this order is nothing to hinder her turning over if the debt be reall and so upon proof that the debt was reall she was turned over Locky and Dumiloe Hill 1652. Banc. sup Hill 1650. rot 1462. VPon a special verdict in an ejectione firmae the case fell out to be this Special verdict in an ejectione firmae I. S. seised of lands in Fée makes a lease of it to I. D. at Will A. B. puts the Tenant at Will out of possession and after the Tenant at Will enters and takes a lease at Will of him that put him out of possession the question was whether he should hold the land by virtue of his first lease or by virtue of his second agreement To this Roll chief Iustice said if one make a lease at Will to one and he be ousted Will. Determination and then enter again and take a new estate the Will is determined but a stranger cannot determine his Estate without his consent but here he hath determined his first Estate by his new contract with the disseisor of his Lessor And he said if Livery and Seisin be made upon one Acre of land in the name of two Acres it is good for both the Acres for it is not necessary that the party that gives the livery should go to all the land mentioned in the deed of Feoffment Livery and Seisin And he also said that if Tenant at Will cuts down a tree upon the land which he holds at Will by this Act he hath determined his Will Drake and Drake Hill 1652. Banc. sup DRake brought an Action against Drake for these words Arrest of Iudgement in an Action for words viz. Thou hast preached lyes in the Pulpit the Plaintiff being a master of Arts and incumbent of a living Wadham VVindham held the words actionable because they were spoken of the Plaintiff in relation to his
professision and cited one Hinkes case where these words spoken of the Plaintif being a Brasier were held actionable viz. Thou hast cozened me of a Pan. And if one say to another Thou hast poisoned a man If the man be dead the words are actionable although he doe not say that he did it wilfully The Court enclined the words are actionable because they are scandalous And the rule was Iudicium nisi c. Hill 1652. Banc. sup VVAdham Windham moved for a Certiorari to remove an Endictment preferred against one in Newgate Motion for a Certiorari to remove an Endictment Roll chief Iustice He lies there for murder and is outlawed thereupon yet take a Certiorari to remove the Record for his fact was the stabbing of a man and stabbing is in its nature but felony Felony Murther and is not murther although the party cannot have his Clergy for it by reason of the Statute made by King Iames against Stabbing else by the Common Law he might have had it Ashworth and Sir Tho. Stanley Hill 1652. Banc. sup VPon a Verdict given for the Plaintif in an Ejectione firmae Arrest of Iudgement in an Ejectione firmae Damages Ejectione firmae It was moved in Arrest of Iudgement That the Ejectment is laid to be of three Messuages or Tenements and a Toft which as to the Messuages or Tenements is incertain Roll chief Iustice You move too soon for it may be the Plaintiff will release the damages as to the Messuages or Tenement and take his judgement only for the toft and the Action lies well enough for that Hill 1652. Banc. sup TWisden moved to discharge Sir Thomas Revell and others of their recognisances for the peace in which they were bound the last Michaelmas Term Motion to discharge recognizances of the peace because the Affidavit upon which they were bound was only to this effect That the Prosecutor goes in fear of his life when he goes into such parcels of land whereas in truth those lands are setled upon Sir Thomas Revell by decree in Chancery and the Prosecutor hath also brought 18 several Actions against the Tenants of the lands and hath declared against none of them and there are four Affidavits against the first Affidavit Green on the other side said that the party is in Court and says he is still in fear of his life Peace and prays he may not be discharged But because upon reading the Affidavits and examining the matter it appeared to the Court that they were bound to the peace upon malice and for vexation they were discharged Hill 1652. Banc. sup BY Roll chief Iustice Who ought to repair High-ways of Common right All High ways of common right are to be repaired by the Inhabitants of that Parish in which the way lies But if any particular person will enclose any part of a way or waste adjoyning he thereby takes upon him to repair that which was so enclosed Massey and Aubry Hill 1652. Banc. sup AN Action of Debt was brought upon an Obligation to stand to an Award Arrest of judgement in debt upon an Obligation to stand to an Award The Defendant pleaded that the Arbitrators made no Award The Paintif replies that the Vmpire made an award and sets it forth and assigns the breach and upon issue joyned and a verdict for the Plaintif It was moved in Arrest of Iudgement that the assignment of the breach was not good for the incertainty of it for the breach is assigned upon but a part of the Award for the breach assigned is that the Defendant should pay the Arrears of rent due after the purchase of certain lands and doth not shew what these Arrears are But Roll chief Iustice said That the words since the purchase thereof seem to make this certain yet stay till the other moves At another day the case was moved again and the same exception insisted upon by Barry of the Inner Temple who formerly moved it Hales held the Exception not good and that the breach was well assigned because though it seem uncertain of it self yet it relates to a thing which makes it certain As an Award for one to deliver to another all the goods in such a Shop which belonged to him hath been held to be good But Barry answered That it is utterly incertain and that there is nothing in the Award which can make it certain and here is a four-fold incertainty in the Award 1. It cannot be known what these arrears are that are awarded to be paid 2ly It appears not by the Award for what lands these arrerages of rent awarded to be paid are due for there are no lands mentiond but only two leases of land 3ly It appears not by whom the arrerages are due 4ly It appears not to whom the arrerages are due Roll chief Iustice All the matter is whether it appears that these arrerages of rent awarded to be paid were in question or no and it seems they were because the lease and the rent thereupon reserved are both in question but it is not certain what these arrears of rent are and so the party that is awarded to pay them cannot tell what sum of mony he is to pay Ierman Iustice said he may know because he was Tenant of the land Barry replyed he cannot know when the purchase was made and the arbitrement is that the party shall pay all the arrears since the purchase Curia advisare vult At another day the case was again moved by Barry and exceptions taken that the breach was assigned upon a thing not submitted unto or awarded to be performed And secondly The award is incertain in many things First It appears not what rent was due to be paid but only by implication which is not good Secondly It appears not for what the rent is due nor 3ly How much rent is due and Salmons case in the 5. rep was cited Also it was objected that the award was not finall and concluding and therefore not good Also the Award is unreasonable and for that cause also it is not good and he cited 21 E. 4. f. 40. and 17 E. 4. f. 51. and prayed for the Defendant that judgement might be stayed Hales on the other side prayed for judgement said That the Arbitrators were not to ascertain particularly the rent to be paid but it is sufficient for them to make the Award touching all the differences betwixt the parties and an averment may ascertain the particular things being they are only matters of fact although one may not be admitted by an averment to supply an Award in a matter wherein it was in the substance of it defective before Roll chief Iustice What certainty is there by the Award that the party shall enjoy all his right in the two leases in difference between the parties for the payment of the rent Both parties know what rent is due reserved by the leases but how can the party know what the
mony and thereupon the Defendant moved to have the moniés out of Court Roll chief Iustice Peremptory The Plaintiff hath lost his mony â—y this verdict therefore let him shew cause why the Defendant should not have them for it is peremptory to the Plaintiff Franklin Mich. 1653. Banc. sup IN an Action of Accompt the Defendant was adjudged to accompt Motion for Merchants to be joyned to Auditors assigned to receive an accompt and Auditors were assigned The Court was moved that they would order to joyn some Merchants to the Attorneys on either side to help them to mannage the Accompt because the Attorneys were not skilfull in such businesses Roll chief Iustice We can make no rule for this but you may by consent advise with Merchants to assist you in drawing up the Accompts Mich. 1653. Banc. sup BY Roll chief Iustice One burned in the hand may be a Witness one that hath been burned in the hand for Felony may notwithstanding be a witness in a Cause for he is in a capacity to purchase Lands and his fault is purged by his punishment Townsend and Barker Mich. 1653. Banc. sup Trin. 1653. rot 743. TOwnsend brought an Action upon the Case against Barker Arrest of judgement in an action for words that had béen a Copartner with him in trade for speaking these words of him You are a cosening Knave and did cosen me of 1200 l. at one time and that was in making an accompt in the year 1648. Vpon a verdict for the Plaintiff it was moved in arrest of Iudgement that the words are not actionable because though they he spoken of a Tradesman yet they are not spoken of him in reference to his Trade but in reference to an Accompt and although by way of reduction and consequence they may reflect upon his honesty yet they are not actionable and though his reputation be impaired by speaking them yet he cannot be endicted for cosening in his Trade by reason of them because they are spoken of a singular and particular abuse and not of a general cosening used in his Trade and an Action upon the Case lies not for words which are only scandalous by way of reduction and if the words should hinder the party to get a Partner hereafter to trade with him yet he may use his Trade and so cannot be prejudiced nor are the words that he cheated him but that he cosened him which are not of so violent a construction Wild on the other side said that here is a Partnership which is necessary to the driving of a Trade and without which it cannot be so well driven and the Accompt is incident to all Partnerships and prayed for Iudgement Roll chief Iustice If the Copartnership continued the words were actionable without doubt for then they must be spoken of him in the way of his Trade Case but here the Partnership being ended makes the matter more considerable but yet as it is the words are scandalous and may hinder him from getting a Partner for the time to come and it may be he cannot mannage his Trade without a Partner and although an Accompt be a private thing yet the Plaintiff is disgraced by the speaking of the words and none will deal with a man that will cosen his own Partner and we must countenance Trade and Traffique and mens credits and the Accompt is not so collateral a thing to trade as Hales objects as is the hiring of a shop to trade in or the like German Iustice ad idem and said that Copartnership is necessary to support Trade and the keeping of a true Accompt is the principal thing between Partners Nicholas and Ask Iustices ad idem Judicium nisi pro querente Bird and Christopher Mich. 1653. Banc. sup IN this Case upon giving of an evidence in a Trespass and Ejectment Extinguishment of a Proviso in a Deed. it was said by Roll chief Iustice that if I do enfeoff I. S. with a Proviso contained in the Deed that it shall be lawfull for me to revoke this Feoffment and afterwards I levy a fine to I. S. of the same Land this is an extinguishment of the Proviso of revocation Olive and Tong. Mich. 1653. Banc. sup Trin. 1651. rot 1426. Vpon a special Verdict in an Action of Trespass and Ejectment Special Verdict in a Trespass and Ejectment the Case in effect was this One whose Sirname was Mills seised of Gavelkind-lands in Kent in fee by his last Will and Testament devised these Lands to Elizabeth his Daughter in tayl with a Proviso in the Will that if his Daughter Elizabeth did mary one of his own Sirname that then she should have the Lands in fee-simple Elizabeth maried one whose Sirname was Mill but commonly called and known by the name Mills also The question was whether she had maried one of such a Sirname whereâ—â— according to the Proviso in the Will she had a fee-simple in the Lands â—evised unto her or whether his Sirname should be accompted a distinct name from the Testators so that Elizabeth by the Will could only have an Estate in tayl in the Lands devised unto her It was argued first that the name Mill and Mills shall not be said to be one and the same name no more than if she had maried one of a clear differing Sirname in sound yet commonly called also Mills could she have been said to have maried one of his own Sirname and the Proviso here is not a particular pointing out of the person whom his Daughter should mary but a general limitation directing her to mary one of his own Sirname and this ought to have been punctually followed because the name was used to induce the affection of the Devisor to enlarge the estate given by him If he had devised his Land to his Daughter E. if she shall mary a Protestant or an Earl she must mary one that is really so and not one called or only reputed so And as to the objection that this construction would make contrariety in the Will which is not to be admitted this will not be if the Will be taken compositive as it is penned or together and not abstractive and taken to pieces and if it should not be intended that she should mary one who in truth was of his name there would be a contradiction in the Will and here is an Emphasis in the word Own which must be meant his real name and not of a reputative name Roll chief Iustice If a Iuror be retorned by the name of Mills and is sworn by the name of Mill shall this be a mistryal quasi non and the words found alike as Baxter and Backster At an other day the Case was put again by Hales and argued for the Plaintiff and he made divers points in the Case but I could not well hear him but the only point insisted on was the point formerly spoken to and the sum of his Argument was that we are in
Owner may devise and the Custom is that every Owner in fee-simple may devise and the Custom shall go to Land and holds to reversions as well as to lands in possession At another day it was argued that the devise was not good for the word Owners cannot extend to all sorts of Owners for it extends not to an Infant Owner of such Houses for he cannot devise therefore the words must receive a limited construction and therefore I conceive the word Owner extends only to an absolute Tenant in fee-simple and not to a reversioner in fee for a Custom must as hath been said be taken strictly 12 E. 4. f. 3.21 E. 4. f. 24. 2ly In true construction this Owner in fee in remainder shall not be said Owner but the Tenant in tayl is Owner and so here is not Owner ex vi termini 3ly Here is but a possibility of fee-simple in him which is not grantable or devisable 2 Ed. 4.1 and the Statute of Westm 2d helps not to the Custom for that Statute is within memory of man 26 H. 8. f. 4.22 Ass Pl. 78. And upon the very finding of the verdict it cannot be good for by the Verdict no title is found for the Defendant Latch on the other side held that here is a good devise warranted by the Custom for here is an Estate within the very letter of the Custom for he is true Owner of the House in fee-simple although it be not in present possession for he hath fee-simple in it and hath it to his own benefit in such an Estate as it is and the word Owner is a general word and comprehendeth all manner of Ownerships 2ly It is within the reason of the Custom for it intends the same benefit to Owners in reversion as it doth to Owners in possession and is indifferent unto all Estates And although a Custom shall be taken strictly yet it shall also be taken reasonably as having respect to the benefit of the party and there can be no reason alleged to be against this devise 26 H. 8.4 A remainder in fee shall go according to the Custom whether by the Custom Lands in fee shall go the Custom shall go to all things issuing out of the Land and so to all Estates in the Land Dyer 148. and here is more than a possibility devised 4 5 Phil. Mar. Benloes It is ruled that a fee-simple expectant shall go to the youngest Son by the Custom where the Custom was that the youngest Son should have the Lands of which his Ancestor dyed seised and as to the Verdict here is a good title found for the Defendant Roll chief Iustice The verdict is imperfect for the Ejectment is against Baron and Feme and the Feme is found Ejector by the verdict and nothing is found concerning the Baron Venire de novo therefore you must have a Venire de novo if you will not agree to amend the Verdict according to the notes if the notes will warrant it Afterwards a Venire de novo was awarded by consent Pendarvis and Saint Aubin Hill 1654. Banc. sup Trin. 1653. rot 723. IN an Action of Accompt the Defendant pleads ne unques receptor Plea before Auditors upon this an Issue was joyned and an imperfect verdict found and thereupon a Venire de novo was awarded and the Iury found for the Plaintiff and the Defendant adjudged to accompt before Auditors The Defendant pleads before the Anditors that he had delivered over part of the monies To this the Plaintiff demurs and shews for canse that this Plea is contrary to the Verdict for that is that he should accompt for all and here he would accompt but for part only Windham for the Plaintiff argued that this cannot be a good plea before Auditors in discharge of the accompt but it goes in bar of the accompt Dyer 196. 41 E. 3. f. 31.22 H. 6.25 and in Boynton and Cheeks Case lately in this Court such a Plea was adjudged not good And it would be michievous if it should be otherwise in reserving such matter to be tryed again Twisden on the other side said it is a good plea before Auditors to say that he received the monies to deliver over and there are four opinions in the Books how this matter should be pleaded â—o E. 3. Br. Acc. 8â— hold â— that this Plea is pleadable before Auditors and this plea is in discharge of the Accompt and therefore pleadable before Auditors 12 H. 4.18 and in Baynton and Cheeks Case cited the judgement was not given upon this point Roll thief Iustice The Books generally are that this plea is in bar of the Accompt Plea Bar. but here your plea of delivery over hath made it a plea in bar and it would be mischievous to plead it now for this would cause one and the same issue to be twice tryed and then there may be contrary Verdicts which would be inconvenient Therefore let judgement be for the Plaintiff Stavely and Ulithorp Hill 1653. Banc. sup AN Action of Debt was brought upon the Statute of 2 Ed. 6. for not setting forth of Tithes and a Verdict was given for the Plaintiff Arrest of Iudgement in an action for not setting forth of Tâ—hs It was moved in arrest of judgement that the Statute was mis-recited because it was not said the Parliament in which it was made was held by prorogation as in truth it was But Latch answered that it is not mis-recited for it is true that the Parliament was held upon the 9th of November Recital as we have alleged though we have not expressed it to be held by prorogation and we conceive it is not necessary to express it to be so held for the Presidents are contrary as in Cooks Entry tit Prohibition Roll chief Iustice The Parliament is not said to be begun and held but only to be held and therefore it is well enough Iudgement was given for the Plantiff nisi Postea Dorman and Snag Hill 1653. Banc. sup AN Action upon the Case was brought upon two promises Arrest of judgement in an Action upon two promises viz. to pay so much mony upon a certain day and 2ly to save the Plaintiff harmless c. Vpon issue joyned and a verdict found for the Plaintiff it was moved in arrest of judgement that the Plaintiff did not shew how the Defendant hath not saved the Plaintiff harmless but only sayes generally that he did not save him harmless and so he may bring another Action for the same thing The Court was then of opinion that it was not good to say generally that the Defendant did not save him harmless but he ought to shew in what particular as if I assume and promise to one to give him all the mony in my Purse I must shew how much mony was in it and aver that I gave it him At another day Sergeant Clark moved for judgement whom Latch seconded and said here is a good breach
Iustice answered Denied It appears not to us but that the Parliament was sitting at the time and peradventure it will be made appear at the tryal Therefore plead and go to tryal and then move in Arrest of judgement if you have any thing to move Page and Parr Hill 1654. Banc. sup Trin. 1654. rot 1687. PAge brought an Action of Covenant upon a Covenant conteined in an Indenture of a demise for years Covenant upon an Indenture for the not paying the rent reserved by the Indenture according to the Covenant The Defendant pleads in bar that the Plaintif entred into part of the land demised before the rent due for which the Action was brought and so had suspended his rent The Plaintif replyed the Defendant did re-enter and so was possessed as in his former estate Suspension of ren and to this replication the Defendant demurred and for cause he shewed that here was no confession and avoidance or traverse of the plea in bar Roll chief Iustice Have you shewed that he continued in possession until the rent grew due for you ought to shew that he entred and was possessed untill after the rent-day but here you have only said that he was possessed in his former right Nil capiar per Billam Therefore nil capiat per Billam nisi Hill 1654. Banc. sup VPon an Affidavit read in Court Not to plead till costs paid assessed in a former Action that 20 l. costs were taxed upon a non-sute in an Action of Trespass and Ejectment brought to the Bar and that the Plaintif had not payed them nor was to be found and yet had brought another Action for the same land The Court was moved that the Defendant might not be ruled to plead to this second Action until the Plaintif had paid the costs taxed upon the former non sute and that another Plaintif might be named or that security might be given to pay the costs if the Plaintif should be non-sute again Shew cause The rule was to shew cause why it should not be so Hill 1654. Banc. sup DArcy moved that an Endictment of Michaelmas Term last might be amended in the Caption But Roll chief Iustice answered To amend an Endictment of a former Term denied It cannot be if it be of the last Term but had it been an endictment of this Term it might have been amended Hill 1654. Banc. sup THe Court was moved to quash an Endictment for entring forcibly upon a Tenant for years against the Statute of 21 Iacobi To quash an Endictment and the Exception was that the Endictment doth not say that he entred manu forti Roll chief Iustice answered The Statute is only that if one enter by force and the words manu forti are not expressed in the Act Therefore move it again if you will Hill 1654. Banc. sup A Habeas Corpus cum causa was granted for Elizabeth Bayne To discharge a prisoner turned over to the Mareschal For a habeas corpus ad subjiciendum to the intent to charge her with an Action and upon the return thereof she was committed to the Mareschal Wild moved that she might be discharged because the return of the Habeas Corpus is erronious But Roll chief Iustice answered It could not be whereupon he moved for another Habeas Corpus for her ad subjiciendum to be directed to the Mareschal which was granted Hill 1654. Banc. sup THe Court was moved to quash an Endictment preferred against one for practising Phisick not being skilfull in the profession To quash an Endictment for practising Phisick without licence and not having a License to practice from the College of Phisicians The Exceptions were 1. That no Endictment at the Common Law lies for the offence supposed to be committed for it is not an offence against the Common Law and 2ly an Endictment upon the Statute lies not and so no Endictment lies And upon these Exceptions it was quashed The Protector and Hart. Hill 1654. Banc. sup ONe Hart committed to the Gatehouse appeared in Court upon the return of a Habeas Corpus granted for him To remand a prisoner appearing upon a Habeas Corpus and turned over Denied and upon the prayer of his Councel the return was filed upon which it was moved on his behalf that he might be remanded to the Keeper of the Gatehouse and not turned over to the Mareschal to the intent to save his fees but the Court said it could not be because upon filing of the return there ought to be entred upon it a Committitur to the Mareschal whereby he becomes his prisoner Torret and Frampton Hill 1654. Banc. sup Trin. 1653. rot 178. VPon a special Verdict the Case was this Special verdict upon a Devise A man deviseth his lands to his wife for her life the remaindar to A. B. and C. and their heirs respectively for ever The question was whether A. B. and C. were joynt tenants or tenants in common Serjeant Twisden held that they were joynt renants Whether joynt tenancy or a tenancy in common and that this case differs from Radcliffs case and cited Wilds case in the 6 Rep. that a Will must be clear and conspicuous but so it is not here and here is no enforcement by these words respectively and they do relate to the persons and not to the lands bequeathed and a Covenant made by three respectively is a joynt Covenant and not a several Covenant and the word respectively hath relation to the survivorship which may happen betwixt the parties and a devise to one and his heir is a fee-simple Latch For the Defendant held that here is a tenancy in Common and not a joynt tenancy for the Estate ought to be whole out either a tenancy in Common or whole out a joynt tenancy and this of necessity for there cannot be a joynt tenancy for life and several inheritantes in the remainder and Littletons ground proves this to be so And 2ly It is against all construction to be otherwise as the word respectively is here placed and Ratclifs case which is not so strong a case as this case proves it to be so and although the word respectively may sometimes make a distribution of heirship as hath been objected viz. of several heirships yet here the placing of the word respectively shews it cannot be so Distribution of heirship and this using of the word is not operative but idle if here should be a joynt tenancy for the law says as much though the word respectively were left out and the word would be the more idle in explicating a thing so obvious to common understanding and no ways doubtfull and therefore we cannot think but that these extraordinary words do enforce an extraordinary construction and not a common one and an idle application and this comes not within the rule objected for the certainty for this word hath a proper meaning to make a several distribution
secrets of his Clyents cause Not to disclose a Clyents cause and thereupon he was forborn to be examined Pilkinton and Bagshaw Pasch 1655. Banc. sup VPon a tryal to be had at the Bar between Pilkington and Bagshaw Tryal at the Bar. the Plaintif would not put in his writ that the tryal might goe on Whereupon Roll chief Iustice bid the Cryer to call the Attorney of the Plaintif to appear and to bring in the writ upon pain of 20 l. and said Pain of 20 l. Attorney put out of the Roll. Non-sute upon the Record that if he brought it not in he should be put out of the Roll. Serjeant Maynard moved that if he brought not in the writ that the Plaintif might be called non-sute upon the Record which Roll chief Iustice answered might well be because the parties have day in Court by the Record or Roll afterwards the Sollicitor who had the writ brought it in yet Roll chief Iustice said There shall notwithstanding the writ be brought in be 20 l. fine set upon him for his trifling with the Court. The Protector and Sumner Pasch 165â— Banc. sup SErjeant Bernard moved that Sumner that appeared in Court upon his habeas corpus directed to the Kéeper of Northampton Gaol might be bailed To bail a prisoner denied for that having killed two men upon the Highway the Iury had found it Man-slaughter se defendendo Roll chief Iustice answered The Iuries conclusion is contrary to their premises Therefore let the prisoner be sent to Northampton Gaol whence he came yet that may not be for the fact was done in Peterborough Tryal Writ ad reâ—piendum and therefore he cannot be tryed at Northampton therefore let him be sent to Peterborough Gaol with a writ ad recipiendum to the Gaoler there to take charge of him Pilkington versus Bagshaw Pasch 1655. Banc. sup IN a Tryal at the Bar in a Trespass and Ejectment betwixt Pilkington and Bagshaw Trespass and Ejectment the question being whether Copyhold lands may be entailed by the custom of the Manor It was said that if Tenant in tail and the issue in tail of Copyhold lands in tail joyn in a surrender in a Court Baron of the Copyhold lands Estopel Copyhold lands in tail Customary entail Fine State enjoyed Seisure of Cepyhold lands that this is not an estopel for it ought to be by fine or deed indented And Roll chief Iustice said that Copyhold lands in tail are not within the Statute of Westm 2. but it is a Customary entail like in its nature to another entail and such an estate must be docked by fine or by some other customary way It was also said by him that if Copies of Court Rolls be shewed to prove a Customary estate the enjoynment of such estates must also be proved otherwise the proof is not good It was also said upon the evidence That a seisure by the Lord made of Copyhold entailed lands within the Manor of Wakefield in Yorkshire is in the nature of a recovery to deck the entail and that the manner of doing it is either for the Copyholder to let his Copyhold for more years than he ought or to refuse to do his service and then the Lord seifes the lands for a forfeiture and grants it to another by the consent of the Copyholder that made the forfeiture It was then also said by Roll chief Iustice Custom that a Custom cannot be urged for a thing that had its beginning since Rich. the 1. if a Record can be shewed to the contrary Common recovery Recompense in value Custom Copyhold destroyed It was also said by him that a common recovery suproseth a recompence in value to all persons who lost the estate by the recovery He said also that he conceived that there could be no such Custom to cut off entails of Copyhold lands by the forfeiture and seisure of the Lord for his seisure upon the forfeiture destroys the Copy-hold estate by the Common Law for it is in the Lords election after the seisure whether he will grant the estate again or no and you do not prove that the Custom binds him to it Nota. Harris and Pasch 1655. Banc. sup THe Court was moved in the Case of one Harris To amend an old judgement Denied that the entry of a judgement twelve years past might be amended upon the Roll. But Roll chief Iustice answered It cannot be after so long time past Pasch 1655. Banc. sup VPon a writ of Error brought to reverse a fine levied by an Infant being a Feme Covert Day to inspect an Infant The Court was moved for a day to bring in the party that levied the fine to be inspected by the Court which was granted and at the day she was brought into the Court and viewed and two witnesses deposed that she was within age at the time of the fine levied Entry upon the Roll. which was entred upon the Roll upon which the Issue was tryed Pasch 1655 Banc. sup IT was said by Roll chief Iustice Election That if there be two Kinsmen in equal degree of kindred to the Intestate it is in the election of the Ordinary to which of them he will grant Letters of Administration Pasch 1655. Banc. sup AN Outlawry was reversed Outlawry reversed because the place where the County Court was held is not shewed in the secundo exactus Pasch 1655. Banc. sup IT was moved that there was a judgement given in the Common Pleas To affirm a judgement a writ of Error depending and thereupon the Defendant brought his writ of Error to reverse the judgement in this Court and since pending the writ of Error the partses were agréed and therefore they desired the judgement might be affirmed because that otherwise satisfaction of the judgement cannot be acknowledged upon the Roll because the Court of Common Pleas were forclosed to do any thing further upon the judgement given there by reason of the writ of Error But Roll chief Iustice answered It cannot be Denied for you shew no cause why we should affirm the judgement and therefore we will make no rule in it but enter satisfaction upon the Roll if you will at your own peril Pasch 1655. Banc. sup IT was said by Roll chief Iustice that an Action upon the case will lie against one that brings vexatious actions against another Action upon the Case for vexation or for entring of Actions of a great value to force his adversary to put in great bail where he hath but small cause of Action Nota. Trevanian and Penhollow Trin. 1655. TRevanian brought an Action upon the case against Penhollow for speaking of these words of him Plea to an Action on the Case Thou hast taken a false Oath at the Assizes and art false forsworn The Defendant pleads that the Plaintif had agréed to accept of 3 Iuggs of Beer from him in satisfaction The Plaintif
to the surrender or otherwise the admittance is not good Thurle and Madison Mich. 1655. Banc. sup IN a Tryal at the Bar between Thurle and Madison Enrolment of a Deed. It was said by Glyn chief Iustice that if divers persons do seal a Deed and but one of them acknowledge the Déed and the Déed is thereupon enrolled this is a good enrollment within the Statute and may be given in evidence as a Deed enrolled Evidence at a Tryal It was then also said that if a deed express a consideration of money upon the purchase made by the Deed yet this is no proof upon a tryal Consideration that the monies expressed were paid but it must be proved by witnesses MEorandum Copy proved That upon the same Tryal an Act of Parliament produced in point for the selling of Delinquents estates was sworn to have been examined by the Parliament Roll and that it was a true Copy before it was read in evidence Nota. VVood and Gunston Mich. 1655. VPon a motion for a new tryal between Wood and Gunston Memorandum New tryal for miscarriage of the Iury. upon a supposition of excessive damages given by the Iury in an Action upon the case tryed at the Bar for words viz. Calling the Plaintif Traytor c. 1500 l. being the damages given It was said by Glyn chief Iustice that if the Court do believe that the Iury gave their verdict against their direction given unto them the Court may grant a new Tryal And a new Tryal was gronted in this Case after a full debate had by Councell on both sides Culliar and Iermin Mich. 1655. Banc. sup CUlliar brought an Action upon the Case upon a promise and declared Arrest of judgement upon a promise that the Testator of the Defendant in consideration that the Plaintif would mary such a Woman did promise that he would leave him half his Estate at his death and thereupon he did mary the party and yet he did not leave him half his estate at his death Vpon a verdict found for the Plaintif it was moved in arrest of judgement that the Declaration was not good for whereas the promise was that the Defendant should leave him half of all his estate which might be intended both of his real and also of his personal Estate and of any estate in reversion as well as of an estate in possession the Plaintif only says that the Testator died worth 3000 l. in possession and that he did not leave him half of that estate and it may be he left him part of his real estate or estate in reversion to the full value of half his whole estate But Glyn chief Iustice disallowed the exception and gave judgement for the Plaintif Iudgement Lance and Blackmore Mich. 1655. Banc. sup Hill 1654. rot 191. LAnce an Executor brought an Action upon the Case against Blackmore Arrest of judgement in an Action upon the Case upon a pro and declared that in consideration that the Testator would suffer the Defendant to enjoy such a Close of land the Defendant did assume and promise to pay 53 s. a year for the rent thereof for so long time as he should enjoy it and for so much rent due for it for so long time in the Testators life time and for so much rent due since his death he brings the Action Vpon non assumpsit pleaded a verdict was found for the Plaintif and entire dammages given It was moved in arrest of Iudgement That an Action of the Case doth not lie it being for the non-payment of rent which follows the nature of the land and doth sound in the realty for which a personal Action lies not 2ly Here doth not appear by the Daclaration Personal act on Consideration to the any consideration to ground the promise upon for the Declaration is that if the Testator in her life time would permit the Defendant to enjoy the Close then c. and it is not averred Averment that the Testator did in her life time suffer the Defendant to enjoy the Close Glyn chief Iustice If a promise be made to the Testator the Executor may have an Action Executor and it is a good consideration as to him for the executor is representative of the Testator And 2ly An Action upon the Case will not lie for rent upon a promise in law but upon a special promise of the party to pay it Promise in Law Special as our Case is it will lie Ingram and Fawset Mich. 1655. Banc. sup IN this Case it was said by Glyn chief Iustice Administratâ—r must shew how Administrator That if an Administrator bring an Action against an Administrator it is not necessary for the Plaintif to shew by whom the letters of Administration were granted unto the Defendant but he must shew by whom the letters of Administration were granted to himself to entitle himself to the Action for if it appear not to the Court that he is Administrator he cannot sue by that name Mich. 1635. Banc. sup IT was said by Wild and agreed by Whitwick one of the Masters of the Vpper Bench office How far special bayl is lyable for the principal that if an Attorny do appear for one in the Vpper Bench special bayl is entred for his Clyent to that Action that that Bayl is not bound to stand Bayl to all other Actions that shall be declared in against the party upon the by but the Attorny for him is bound to appear for him in all such Actions and to put in Common bayl Wagstaff and Tempest Mich. 1655. Banc. sup IT was said by Glyn chief Iustice upon evidence given in a Tryal at the Bar Dispensation with a forfeiture of an Estate bayl between VVagstaff and Tempest that if tenant for life do levy a Fine of the Lands he is so seised of whereby he should forfeit his estate yet if he in the remainder will joyn with the Tenant for life in declaring the uses this is a dispensation with the forfeiture and Le Gay Mich. 1655. Banc. sup THe Court was enformed For a time to accompt before Auditors that in an Action of Accompt brought there was a verdict that the Defendant should accompt before Auditors and that Auditors were assigned and the parties were now before the Auditors and thereupon it was moved on the Defendants part that this Court would grant him time to accompt for the reasons alleged But Wild answered that it was not proper to move here for the Auditors are now Iudges of the matter Auditors Iudges by the Statute and may give time if they see cause To which Glyn chief Iustice agreed and said the Auditors are Iudges by the Statute and therefore move before them and trouble not us with it Sergeant Bradshaw and Procter Mich. 1655. Banc. sup IN the Case of Sergeant Bradshaw and Mr. Procter of Grays Inne Challenge to an array no part of
make a ditch or raise up a bank to hinder my way to my Common I may justifie the throwing of it down and the filling of it up Mich. 1655. BY Glyn chief Iustice Damages in Dower If a Feme bring a writ of dower and recover and the Defendant die the feme shall have her damages against the Terr-Tenants Mich. 1655. A Writ of Error quod coram vobis residet is when a writ of Error is brought to reverse a judgement given in the Common pleas Error quod coram vobis residet what it is or other Court where the Record was formerly removed into the Court of the Vpper Bench and by reason of the death of the party or for some other cause rests undetermined by reason of the abatement of the former writ of Error Le pool and Tryan Mich. 1655. Banc. sup VVIld moved for a prohibition to the Court of Admiralty to stay a tryal there in a Trover and Conversion For a prohibition to the admiralty in which they procéed upon a pretence that the goods in question were taken upon the High Sea and that by the late Act they have exclusive power in all such cases which is not so Glyn chief Justice It was resolved in Cremers and Cokelyes case so adjudged that they have no such power Therefore take a prohibition nisi c. Morden and Hart. Mich. 1655. Banc. sup MOrden brought an Action of debt upon an Obligation to stand to an Award against Hart. Vpon nil debet pleaded Arrest of judgement in debt upon an Obligation to stand to an Award and a verdict for the Plaintif it was moved in Arrest of judgement and the exception taken was that the Award was made but of one part and so not binding to all the parties submitting The case was this One Stephens and Body on one part also Hart on the other part submitted to stand to the Award The Arbitrators awarded that Body should pay a certain sum of money unto Hart in satisfaction for the differences betwixt Body and Stephens on the one part and Hart on the other part which was objected could not be good for the money paid by one could not be in satisfaction for another and so the Award is not made to conclude all the parties submitting for Stephens was not concerned in it and the Award is with an Ita quod which ought to be a general Award and include all parties and therefore if it be void in part it is void in all But Green on the other side answered though the Award should be naught in part yet it may be good as to Body that paid the money and the moneys ought to be received as they are paid and that is for Body and Stephens and may be well in satisfaction for both of them It was also urged by Howell on the same side that it appears that Body and Stephens are partners and this will make an end of the matter for then the money paid by one of them may satisfie for the other Award in part Glyn chief Iustice Here is a good Award betwéen two of the parties that submitted but there appears nothing to be awarded as to Stephens the third party for it doth not appear that he can take any benefit by the Award of the money to be paid by Body or that it can be any satisfaction for him but only for Body Iudgement for the Defendant Iudgement for the Defendant nisi c. Busfield and Norden Mich. 1655. Banc. sup A Writ of Error was brought by Busfield against Nordon to reverse a judgement given in the Court Military of Rippon in an action upon an indebitatus assumpsit for wares sold Error to reverse a judgement upon an indebitatus assumpsit by the Bail wherein there being a judgement given against the principal a scire facias issued out against the Ball and a judgement was thereupon and against him the bail thereupon brings a writ of Error to reverse both these judgements and assigns for Error that there was no issue joyned in the first judgement and that being erronious Bail cannot reverse the principal judgement The writ abaed and being the ground upon which the scire facias did issue forth whereupon the second judgement was given the second judgement cannot be good Glyn chief Iustice But the principal judgement ought to be reversed by the principal and not by the bail and therefore the writ of Error is not well brought by the bail therefore let it abate Vidian and Fletcher Mich. 1655. Banc. sup VPon view of an Infant brought into Court of to be inspected Scire facias for an Infant to â—everse a fine levâ—ed ouâ—ing Covertuâ—e who had during coverture joyned with her husband in levying a fine of her lands she was by the Court adjudged within age whereupon a scire facias issued out to the terr-Terr-tenants who came in and pleaded that she was of full age at the time of the fine levied upon which plea issue was joyned and a tryal was had at the Assizes and a Verdict for the Plaintif who now came in Court and prayed for judgement upon the Verdict Glyn chief Iustice The Court is to judge of the Infancy Iury not to try Infancy and not the Iury and therefore you have not proceeded duly but the proceedings do no hurt for we judge she was within age Fine reversed Therefore let the fine be reversed nisi c. Nota. and the hundred of Crondon Mich. 1655. Banc. sup AN Action of Trespass upon the case was brought against the Hundred of Crondon in Hampshire upon the Stat. of Winchester Arrest of Judgement in an Action upon the Statute of Huc and Câ—yes Case Statute by one that was robbed within the hundred upon the tryal a verdict passed for the Plaintif It was moved on the behalf of the Hundred in Arrest of judgement 1. That the Plaintif had mistaken his Action for whereas he hath brought a general Action of Trespass upon the case he ought to have brought an Action upon the Statute 2ly He declares that he took his Oath before I. S. a Iustice of Peace in the County Whereas it should be for the County 3ly He hath not expressed that he took his Oath before a Iustice assigned to keep the Peace 4ly There is no issue joyned 5ly He saith that he took his Oath 20 days but doth not say next before as the Statute directs Windham on the other side answered to the first Exception that it is usual of latter times to declare in an Action upon the Case generally To the second he said it is no exception for a Iustice of Peace is not an Officer affâ—red to a place Serjeant Twisden But it doth not appear that you took your Oath 20 days before your Original sued out Glyn chief Iustice That appears well enough upon the Record Variation But the writ here is in an Action upon the case