covenanted with Sir Edward Sackvil to levy a fine to him of that land before the fine acknowledged the eldest brother dyed and the question was whether the youngest shall be compelled to levy the fine and presidents were commanded to be searched concerning that matter Note that it was said that where a commission issued out of the Court of wards to 4 persons or to any 2 of them and one of them refuse to be a Commissioner and the other 3 sit as Commissioners and he who refused was sworn and examined by them as a witness and ruled that this is good for though he refused to be a Commissioner yet he is not excluded to be sworn as a witness In evidence to the Iury the case was that Tenant in taile bargained and sold his land to I. S. and his heires and I. S. sold to the heire of the Tenant in taile being of full age and Tenant in taile died and the heire in taile claimed to hold his estate and the doubt was whether he was remitted or no Hobert was of opinion that after the death of the Tenant in taile that the heire is remitted for if Tenant in taile bargain and sell his land the issue in taile may enter and where his entrie is lawful there if he happâ— the possession he shall be remitted Hutton and Warberton Iustices contrary For at the first by the bargain and sale the son had fee and then the estate of the son may not be changed by the death of the father he being of full age when he took this estate and this was in an Ejectione firme of land which concerns Sir Henry Compton and the Lord Morley and Mounteagle White against Williams VVHite brought an action of accompt against Williams as his Bayliff to his damages 100. l. the Defendant pleaded he never was his Bayliff and it was found against him and the Iudgement was given that he should render an accompt and at the day the Defendant made default Ideo consideratum est per Curiam quod Querens recuperet versus predict Defendent 42. l. 10. s. and upon that the Defendant brought a writ of error and assigned for error that the Court gave Iudgement of the value without inquiring of the value and it was holden by Gaudy and Fenner only present that the Iudgement ought to be given which the Plantiff had counted of Baron Altham contrarie for the Court may in discretion give a lesser summe Hill 43. Eliz. B. R. vide 14. E 3. Accompt 109. 20. E. 3. 17. Sir George Topping against King VVA st was assigned in the cutting of Elmes and other Trees to such a price and Iudgement was given for the Plantiff by nihil dicit and a writ of inquiry of dammages issued upon that and the Iury found to the dammages of 8. s. and upon this Davies the Kings Serjeant moved to have a new writ of inquiry and that the old writ shall not be returned for the dammages are too litle Winch said all is confessed by the nihil dicit Hobert The Iury here have found the value and presidents were commanded to be searched and Hobert said that if an information is for ingrossing of 1000 quarters of corn and Iudgement is given by nihil dicit and a writ of enquiry issues which findes him guilty of 100. yet this is good And not that at another day the case was moved again it was between Sir George Topping and King and it was said if a man recover in waste by nihil dicit and a writ of inquiry issues the Iury in this case may inquire of the dammages but not of the place wasted for this is confessed and so are the presidents according and Hobert said if the Defendant is bound by the nihil dicit as to the place wasted for what cause shall not he be bound as to the dammages and by all the Court if the jury finde dammages only to 8. s. the Plantiff shall not have Iudgement for it ought to be above 40. s. Hob. this is in the discretion of the Court in this case and it was also said in this case that upon the grant of all the trees and after the grantee cut them and new ones grow upon the slumps which in time will be trees that in this case the grantee shall have them also by Hobert Wetherly against Wells in an action for words VVEtherly against Wells in an action upon the case for these words thou hast stollen hay from Mr. Bells racks and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of Iudgement because he had not shewed what quantity was of that and perchance it may be of so little a value that it is not fellony and the rather because it is hay from the Racks but Hobert contrary that Iudgement shall be given against the Defendant for the Plantiff for it hath been adjudged lately in this Court that where a man was charged with petty Larceny to steal under the value of 12. d. that an action of the case will lie for the discredit is not in the value but the taking of that with a fellonious intent and yet it had been adjudged in this Court that where one said of another thou art a thief and hast stolen my trees that in this case an action will not lie but this is by reason of the subsequent words trees for it is said Arbor dum crescit lignum dum crescere nescit And Winch said that it had been adjudged actionable to say thou art a thief and hast stolen my corn and yet perchance not exceed 2. or 3. grains and Warberton said that it had been adjudged in the Kings Bench that where one said thou art a thief and stollest the corn out of my field that no action will lie The Earl of Northumberland and the Earl of Devon NOte that in the case of the Earle of Northumberland and the Earle of Devon execution issued out for dammages recovered against the Bayliff of the Earle of Northumberland by the name of I. S. of D. and there was I. S. the father and I. S. the son and the father being dead the son issued his writ of Idemptitate nominis and he prayed to have a supersedeas and Warberton demanded of Brownlow if he had any such president to award a supersedeas in such case who answered no and Warberton and Hutton being only present said that they will advise of that Sir George Sparke Prescription IN a Replevin for the taking of a horse in 5. acres of land in such a place and the Defendant avowed as Bayliff to Sir George Spark and shewed that Sir George Spark and all those whose estate he had in the land had used time beyond the memory of man to have herbage and pasturage in all the 5. acres when that was not sowen and upon this plea the Plantiff demurred Ashley argued for the Plantiff that the prescription is void and this is not
recovery here the Term is saved and yet for the time the lessee was seised to his own use but because that the fine was Preparatory to inable him to suffer the recovery now in this case after the recovery suffered that will look back to the first agreement of the parties and so the Statute hath saved the Term and for that reason if the Statute do save a Term which is of small account much more a freehold and so he prayed judgement for the defendant see more after The case of Hilliard and of Sanders entred Mich. 20. Jac. Rot. 1791. HIlliard brought a replevin against Michael Sanders for the taking of Beasts in a place called Kingsbury and the Defendant avowed and shewed that Sir Ambrose Cave was seised in his demeasne as of fee of Kingsbury where the place in which c. is parcel and 14. Feb. 16. Eliz. granted a rent charge of 42. l. 8. s. 4. d. to one Thomas Bracebridg and to the heirs of Thomas upon Alice to be ingendred the remainder to the right heirs of Thomas and Thomas had issue John and Thomas died and then Iohn his son died having issue Anne the wife of the Avowant in whose right he avowed for the rent of half a year c. 21. l. 4. s. 2. d. due at W. in Bar of which avowrie the Plantiff pleaded that true it is that Sir Ambrose Cave was seised of the Mannor c. and he made the grant according and that Sir Ambrose Cave died seised and that the said Mannor descended to Mary his daughter as daughter and heir to him who was married to one Mr. Henry Knowles and shewed that he was seised and then shewed that the 12. Iac. it was agreed between the said Sir Thomas Bracebridg and Alice his wife Mich. 22. Jac. C. P. and the said Henry Knowles and mary his wife that for the extinguishment and final determination of the said rent that Thomas and Alice should levie a fine to Henry and Mary of the said lands and Tenements aforesaid by the name of the Maniior of Kingsbury 300. Acres of land and of divers other things but no mention was made of the rent and this fine was upon Conusance of right as that which they had c. and also they released all the right which they had in the land to Henry and to Mary and then shewed that after the death of Mary this land descended to two daughters one being now married to the Lord Willoughby the other to the Lord Paget under whom the Plantiff claimed to which the avowant said by protestation that there was no such agreement and for plea that the rent was not comprised and upon that it was demurred in Law and now Serjeant Attoe this Term argued for the Plantiff and the substance of his argument was in this manner Attoe said the case was Tenant in tail of a rent charge agreed with the Tenant of the land to extinguish that and that he would levie a fine of the land to the land Tenant which is upon Conusance of right and upon release which fine is levied accordingly whether this cuts off the tail of the rent and I hold that it will and I do not finde any opinion in all the Law against this but only the opinion of Thornton in Smith and in Stapletons case in Plowden which I do not esteem to be a binding authoritie and the case is Tenant in tail of a rent disseised the land Tenant and levied a fine with proclamation of the same fine to a stranger now said Thornton this shall not bar the issue in tail of the rent because the fine was only levied of the land and he cited this to prove another case which is Tenant in tail of land accepted a fine of a stranger as that which he had c. and he rendered to him a rent and he said that his issue may avoid that rent and this case I grant because the rent was not intailed but for the other case I openly denie that and there is much difference between those two cases for a fine levied of the land may include the rent as well as the land but it is impossible that a fine of rent should include the land and our case here is pleaded to be of the land and of the rent and a fine of the land may carry the rent inclusively because it is a fine of a thing intailed yea it is not a new thing that rent should be carried inclusively by way of extinguishment in the case of a feofment and then á fortiori in a fine which is a feofment upon Record and especially when it is levied on purpose to extinguish the rent and the Statute of fines is more strong for that is of any lands Tenements and hereditaments any wayes intailed to any person c. but this rent is an hereditament intailed to the person who levied the fine and this which is carried inclusively is within the Statute nay if a man had nothing in the land yet if it was intailed to him who levied the fine this shall bar the estate tail for ever as if Tenant in tail made a feofment to G. S. and after that he did levie a fine to a stranger of the same land that in this case the issue shall never avoid this and yet neither the Conusor nor the Conusee had any thing in the land and see for Archers case Cook 3. where the issue in tail levied a fine in the life of his ancestor and a good bar and yet there he had but a possibilitie and so was the case of Mark-williams Mich. 19. Jac. Rot. 763. C. B. where all the distinctions were made for Henry Mark-williams was heir apparant to his Mother who was Tenant in tail and he levied a fine in the life of his Mother and died without issue and then his Mother died and it was ruled that this did not bar the sister heirs because she may have that and never make mention of her brother but in our case if the rent had been granted in fee it had been no question but that a meer release will extinguish that and I think a fine with proclamation is as forcible to extinguish a rent which is intailed as a release is for a rent in fee another reason is this is a fine directly of the rent though this is by the name of land and also this is upon Conusance of right c. and also in that he released and remised to the Conusees all his right in the said land but a case out of Bendloes Reports may be objected Tenant in tail accepted a fine of the land and rendred that for life ruled the issue is not barred but first I do not allow this case to be good law but if it be good law the reason is because he accepted only a fine of the land and for that it only extends to that and not to the rent as if a man is seised
of 3. acres and he accepts a rent of two of them which render of them all this is void for one acre and lastly by a feofment of land by warranty a rent is discharged 21. H. 7. and here I conceive that the replication to the bar of the avowrie is not good for his plea is that the rent in this case is not comprised and that is a point in law whether it is comprised or no for if we do take issue upon that we shall draw the trial here from the Court to the jury in the Countie which is not good and so upon all the matter I pray judgement for the Plantiff in the replication The argument of Davenport Serjeant DAvenport Serjeant to the contrary and he said the case is as hath been recited and the question is whether the rent so granted in tail is by this agreement of the parties and by the fine of the land whether it hath extinguished the rent and I hold this conveyance which only passeth the rent by implication is no bar to the issue in tail within the Statute of fines for where it is said that a fine was levied of the rent by the name of the land and made no mention of the rent this will not carry the rent and yet I agree this fine to be a feofment upon record and to be a bar against the parties who levied that but not against the issue if this had been before the Statute of fines it is no question this had been no bar against the issue for it is the express book 13. Ed. 3. avowrie 12. and 26. H. 7. 4. Tenant in tail of a rent made a feofment in fee of the rent with warrantie and there it is said that the warrantie did not extend to issue quoad the rent but now our case is upon the Statute of 32. H. 8. which saith that a fine shall be a bar of my lands Tenements and hereditaments any way intailed but yet I conceive that this requires that the fine be levied expresly of that and not by way of conveyance and so the case of Smith and Stapleton by Thornton who said that this was granted to him to be law which must needs be meant it was granted by the Court or by the Councel of the other side and the reason of that is because it ought to be levied of that expresly and there it is said if Tenant intail of an advowson do levie a fine of the nomination that shall not bar the issue and yet in effect that is the advowson and because it is not levied of that expresly it is not good and then for the precedent agreement that is indeed that the fine shall be for the extinguishment of the rent and what then will that prove that the fine was levied of the rent and here the writ of Covenant was not brought of the rent and yet I agree that agreements which do lead uses of fines will qualifie them against the very nature of the fine as the case of the Lord Cromwel and Puttenham in Dyer but I do not hold the agreement will extend over the nature of the fine and therefore this being a rent in gross it may pass by the name of land and the averment here is contrary to that which doth appear upon the Record and then not comprised is a good plea but this shall not be tried by the Countrie but by the Record as 12. H. 7. 16. for it is only to inform the Court that the partie had mistaken the Law and shall be tried by the Court and not by a jury in the Countrie as Attoe said and so upon the whole matter of the case I conclude my argument and pray judgement for the Avowant see after Hill 22. Iac. The residue of Michaelmas Term in the two and twentieth year of King James Ralph Holt and Rand against Robert Holt. RAlph Holt and Rand were joyntly and severally bound in an Obligation to Robert Holt and he took out Proces against them by several Praecipes and he had two several judgements and took out two several Executions against them of one Test S. a fieri facias against Rand and a Capias ad satisfaciendum against Holt and the question was whether the writs were well awarded and whether when one is Executed the other is discharged and Serjeant Crew urged 15. H. 7. 15. if after a Capias executed Sir Gilbert Dabenhams case he may not have a scire facias against the same partie and he cited a case to be adjudged in the 13. year of King James between Crawley and one Lidcat where two joynt obligors and the obligee did sue them and had two several judgements against them and he took an elegit against one and a Capias against the other and he who was taken upon the Capias brought his audita querela by which he was discharged of the execution for in so much that he had taken an elegit against one he is concluded to take any Process against the other as well as against him who had the elegit sued against him and so is Cook 1. 31. and yet some books are if the fieri facias is served for part he may have a Capias for the residue and so is the 18. Ed. 4. and â—0 Ed 4. 3. but here the fieri facias was executed for all and for that no Capias ad satisfaciendum shall issue in this case but Waller one of the Prothonotaries câ—â—ed a case in this manner that if a noble man and another be bound in an obligation as before and the obligee had such a judgement as here in this case he may have an elegit against the noble man because that the first Process against him is by summons and distress and he may have a Capias against the other or a fieri facias but Hutton denied this case and said that he shall have the same execution against both for as this ought to be one satisfaction quo ad ec sati factionem so this ought to be one for the manner also and though in this case that the Capias was not well awarded and Harvey Iustice agreed to that Methol against Peck MEthol brought an action upon the case against Peck upon an assumption and he declared that in consideratâ—on that the Plantiff would pay unto one Plaford 52. l. to the use of Peck such a day c. Peck promised to redeliver his bond in which he was bound in the said summe when he should be requâ—sted to that and he said that he paid the 52. l. to the use of Peck and that the said Defendant had not delivered the said obligation licet saepius postea requisitus fuisset and upon the issue of non assumpsit it was found for the Plantiff and now it was moved in arrest of judgement because he had not shewed the day and the place of the request but the Court c. Hobert Hutton and Harvey were of opinion that judgement
ought to maintain the award but to shew the breach for it shall be otherwise if it be found against him and then Hendon answered to the other exception that this is not for direct usury but is rather for the damage which he sustained by the forbearance of the money and yet if it were for interest it is good and then as to that which now had been agreed by my brother Bridgman that contracts and obligations for usury are good I say then by the same reason an award for that is good for whatsoever a man may contract for the same thing may be awarded if the contract will bear that and usury is not malum in se but only malum prohibitum and is good by our law and here in this case though the Arbitrator was deceived in the summe yet after the award made it is altogether certain and an implied recompence is sufficient in this case but the Court said that the casting up of the accompts did not make an award for it is not a good Calculation but the ending of the controversies that doth make the award but yet the opinion of the Court in this case was that the award was good for an Arbitrement shall not be taken absolutely upon the bare words and the Court did command the parties to come before them upon the morrow in the Treasury and as it seems this was for mediation to make an agreement for the opinion seemed to be for the Plantiff The case of Hilliard and Sanders argued by the Court. IUstice Harvey this Term did argue the case of Hilliard and Sanders which see before and after a brief recital of the case he said that his opinion was that the avowant shall not have return because that by the fine of the lands the rent is extract and I am induced to be of this opinion by two things the first is the agreement and tâ—e other is the favourable exposition of the Statute of fines to settle repose and quiet and I will first shew the efficacie of fines at the common law 21. Ed. 4. the Pryor of Binghams case it is laid for a ground and rule in law if a thing be contained in a fine either expresly or implicitly this is very good and so is 44. Ed. 3. 22. 37. H. 6. 5. for a fine is no more then an agreement and therefore it is called in latin Concordia and then see if by any words you may pass this rent by the fine and though the word rent is not there yet if it be so infolded in the lands that is good with that it is very good and for that 3. H. 7. 16. 17. 21. H. 7. proves that by a feofment of the land the rent doth pass and wherefore not by fine then and this shall be within the Statute of 4. H. 7. and 32. H. 8. and a case may be out of the Statute of 32. H. 8. and yet be within the Statute of the 4. H. 7. as the 2. Ed. 3. in Dyer though the feme after the death of the husband she may enter upon the discontinues of the husband yet if she do not within 5 years she shall be barred and now you see that the construction of these Statutes was alwayes to settle repose and quietness for if such a construction should be made according to the opinion of Chornton in Smith and Stapletons case then it will be mischievous and for his opinion it was only in the way of arguing and yet I conceive he had the good opinion of the Reporter and without all question it is a case of as hard a construction as that is of Archers case where the heir who nothing had in the land in the life of his father did levie a fine this is a bar for ever and the reason is because it is of a thing which is intailed and he cited a case in Bendloes Reports where a discontinuee was disseised by Tenant in tail who levied a fine and the discontinuee entred and then proclamations passed that in this case the issue was barred truly I do agree the case of 36. H. 8. that that a fine levied of land did not bar him who had title of Common or a way the reason is because there is no privitie but in our case there is a privitie and by Margaret Podgers case a Coppiholder is within this Statute and in our case the rent passeth especially in regard of the agreement as in the Lord Cromwels case and he cited a case primo Jacobi between Gage and Selby in an ejectione firme where Gage was Tenant in tail and he levied a fine to I. S. in fee and after he levied another fine to the use of himself for life the remainder over and his brother brought a writ of error to reverse the first fine and ruled that he may not for the second fine had barred him of any writ of error and so I conclude the fine had extinguished the rent The argument of Justice Hutton to the contrary HUtton contrary the fine had not barred the rent in which I will consider the nature of fines at the Common Law and they were of mightie and great esteem and force as appears by the great solemnitie which is used in them as is prescribed in the Statute of fines 18. Ed. 1. de modo Levandi fines and he agreed that such a fine by Tenant in fee simple will pass that inclusively for by the release of all his right in the land a Signiorie is gone I agree also that a fine is but an agreement but yet it must work according to the nature of the thing as upon a writ of Measne or of right of advowson a fine may be levied and yet it is not levied of the lands but of the advowson or Signiorie and so if the writ of covenant be one thing and the agreement of another thing then it is not good and first I will prove that at the Common law fines have been rejected when the writ of covenant did not contain the thing of which the fine is to be be levied and if at the Common law a fine was levied of rent there ought to be a writ of covenant of that 18. Ed. 2. fines 123. and there the rule is given that it is against reason to hold covenant of that which never was and the rent there never was before but ought to begin then and yet it is clear a man may create a rent by fine but he shall not have a writ of covenant of that when it was not in esse before and because the concord may not varie from that therefore it was not received 38. Ed. 3. 17. Knevet put the rule that a fine may not be of more then is in the writ of covenant and when a fine is properly levied of that it is by way of release Fitz. fine 100. and so I conceive here the rent doth not pass Secondly here no man may plead that any fine is levied of
of Tithes and good because they are a spiritual bodie 65 In a Prohibition upon a suit for a Legacie the Executor shewed he had not assets to pay the debts and the spiritual Court would not allow that allegation yet no Prohibition 78 Prohibition to the Marches of wales because a Legatee sued there for 500. l. good before a decree but not after 78 Prohibition see Court of equitie c. 79 Prohibition to the Marches of Wales for requiring an accompt of an Administrator 103 Proces against two Obligors by several precipes and thereupon several Executions whether the writs are well awarded 112 A parco fracto where it lies against the Lord of the Soil and where not except the Cattle come out 80 81 Prohibition to the delegates a pardon not allowed of there 125 Q IN a Quare impedit adjudged that nothing ought to be questioned after induction the spiritual Court there 63 R TEnant in tail sells to I. S. in fee who sells to the heir of Tenant in tail being of full age the father dies if the son be demitted 5 A replevin c. the Defendant saith that all those c. had used to have pasturage in c. when it was not sowed the Prescription is good 7 In a return of Rescous there needeth no addition 10 Replevin for rent issuing out of six acres the avowant must prove that the grantor was seised of 6. acres or more 15 Replevin in the Plantiff claimeth propertie without that the propertie was in the Defendant the Traverse not good yet judgement for the Plantiff because after verdict 26 In Return of an extent by the Sheriff surplusage hurteth not 27 Replevin the Defendant avowed for homage and shewed not how it was due if good 31 Replication although evil where the Plantiff shall have judgement if the Defendants plea be vitious 37 A Riotous quarrel about an arrest between the Sheriffs Bailiffs and the Bailiffs of the Marches of Wales 72 Release an avowrie not good without pleading it by deed 72 A Rent-charge granted and a Covenant if it happen to be behinde then the land to be alwayes open to distress whether this be a distinct covenant or not 74 87 Replevin for rent the Defendants say that the land was parcel of a Chaunterie which came to the King by the Statute wherein the right of others was saved the Plantiff replies that the land is out of the fee of the Defendant no good plea but he might have Traversed the Tenure that at the making of the Statute the land was not holden of him 77 A Record amended where the bargain and sale and deed of uses were by the right name but the writ of entrie was of another name 99 100 Rent granted in fee by Tenant for life and him in remainder in tail levied a fine a good grant 102 Rent-charge whether it be extinct by a fine of the land to the Ter-tenant and a release unto him 109 110 111 121 122 S SCire facias the Defendant pleads a feofment the Plantiff traverses and the jury found a feofment to other uses whether this shall be intended the same feofment which was pleaded 32 Scire facias by an Executor upon a judgement for the Testator the Defendant cannot plead the Testators death between the verdict and judgement but he must bring a writ of error 48 Simonie a grant of a next avoidance for monie the Parson being readie to die is Simonie 63 A Sheriff by force of a Capias utlagatum to inquire what lands c. cannot put the partie out of possession 78 Statute-Merchant if good in regard no day of payment is limited largely and learnedly argued by the Court 82 83 c. Servant taken away See Trespas T TIthes See Prescription Trespass the Defendant saith that I. S. was seised in right of his wife and that she died seised and that he as heir c. the Plantiff replied that she died not seised he ought to have said that she died not sole seised 7 Trespass in Yorkshire Justification in Durham without that that guiltie in Yorkshire good because it is local 7 A Traverse to a presentation where good and where not 13 14 Tenure where it is Traversable and where the seisin 18 Tithes not due of Cattle for the diarie 33. Trespass for Beasts taken in London Justification upon a lease of land in Kent Replied that the Defendant sold them in London no good plea to bring the trial out of Kent 48 Trespass for taking ones servant lieth not upon a private retainer otherwise if it were at the Sessions 51 Tithe giuen by the Pope to the Vicar and the Copie of the Bull only was shewed in evidence not good 70 Tithes cannot be appurtenant to a Grange except the Grange be the Gleab 72 73 Traverse where good and where not 113 U VEnire facias omitting part of the venue if good 34 Variance between the writ and Declaration where good 35 A feofment to the use of A. for life and after to the use of his daughter till B. pay her 100. l. here the daughter hath no remedie for this 100. l. without a promise 71 A Ventre inspiciendo awarded and returned but the Court would not agree that she should be detained from her second husband but attended by divers women till her deliverie 71 Variance between the venire facias and the Sheriffs return no judgement in that case 73 W IN Waste judgement by nihil dicit and upon an inquirie the jury found 8. s. damages what judgement shall be given 5 Wager of Law upon a Bill of Exchange 24 Writs a difference wherein there is an error in the original and where in the judicial writ that is amendable 73 Waste although for a time it is punishable yet after the action may revive 79 86 Writ against husband and wife as an Inheritrix the husband dies if the writ abate 102 Errata PAge 1. line 2. 27. for do read Doa p. 2. l. 4. r. lieu p. 4. l. 2. 22. r. 300. pa. 8. l. 36. r. Hendon and so throughout p. 12. in the Title r. Duncombe against the Vniversitie of Oxford p. 12. l. 14. r. 38. H. 8. cap. 39. p. 14. in the Title r. Sir George Savile against Thornton p. 15. l. 21. r. communication p. 16. l. 12. r. 7. Jac. cap. 5. p. 17. l. 47. r. Maines and l. 17. r. sic and also p. 17. 18. in the Margent r. Trin. p. 21 l. 51. r. 39. Eliz. p. 23. l. 9. r. till p. 26 l. 28 for writ r. Action and for Action r. writ p. 27. l. 12. for he r. they p. 28. l. 34. r. may not p. 29. in the Margent r. Easter p. 29. l. 33. for S. r. N. p. 33. l. ultim r. Moore p. 36. l. 43. r. Titterels p. 45. l. 20. r. demandable p. 50. l. 35. r. Bar p. 51. l. 22. r. a penalty p. 53. l. 16. r. may not p. 54. l. 44. r. Estate p. 57. l. 19. r. in our case p. 58. l 50 r. 16. E. 4. p. 68. l. 5. r. estray p. 71. l. 26. r. 12. Note in p. 72. l. 7. Wolseys case ought to have been printed by it self p. 77. l. 4. r. avoided p. 88. l. 4. r. Finch p. 90. l. 15. r. continuance p. 100. l. 21. for preservation r. perswasion and l. 34. for entire r. entrie p. 109. in the Margent for Trin. r. Mich. p. 112. l. 25. r. thought p. 114. l. 18. for interested r. interest
that he agreed if one say of another that he was foresworn in a Court which is not a Court of record that none action will lye because the party is not punishable for that in perjury but in our case the commission issued out of the high Commission Court which Court to the examination of witnesses is in nature of a temporal Court and had been confirmed by act of Parliment and Serjeant Harvey argued to the contrary that the first words are not actionable and then the subsequent words are uncertain and yet if one say of another that he was foresworn at the Common Pleas barre the words are actionable for it shall be intended that this was upon examination in the execution of Iustice Hobert if a man is foresworn in a Court Baron before the Steward this is perjury but in our case the words are altogether uncertain for it doth not appear what authority the Commissioners had nor yet in what manner he was forsworn and Iustice Hutton said if one man say of another he was foresworn before the Bishope of S. this is not actionable but if one say of another that he was forsworn before the Bishop of S. upon examination by him by vertue of a Commission issuing out of the Chancery this is actionable and Hutton agreed to the case of the Court Baron the same Law by him if that be in a Court Leete but in the principal case Iudgement was arrested Wase against Pretty Ent. Hill 16. Jac. Rot. 1716. WAse against Pretty Ent. Hill 16. Iac. Rot. 1716. in an ejectione firme the case was that one joynt Coppiholder did release to his companion and the question was whether this is good without surrender and admittance for it was objected if this shall be good then a Coppihold shall pass without the assent of the Lord but it was resolved by Hobert Warberton and Winch Hutton being absent that the release is good and Warberton said that by Littleton if 3. Ioyntenants are and one of them release to another he to whom the release is made is in by the releasor but if there are but two then he is in by the Lord or from the first conveyance Winch if two Ioyntenants are in capite and one release to the other the King shall not have a fine for this Alienation but Hobert said that the practice is otherwise at this day but he said that when one joynt Tenant releases to another he is in by the first conveyance and in the case in question the release shall be good without surrender and admittance for the first admittance is of them and of every of them and the ability to release was from the first conveyance and admittance it seems if a Tenant in Capite alien upon condition and afterwards he enters for the condition broken he shall not pay a fine for such an alienation Hitcham Serjeant said that if land be given to two upon condition that they shall not alien and one releaseth to the other this is no breach of the condition Hobert if the King grant you his demeasnes you shall not have his Copihold Winch said that it was adjudged in this Court that where one erected a house so high in Finsbury fields by the wind mills that the wind was stopped from them that it was adjudged in this case that the house shall be broken down Goddard against Gilbert GOddard brought an action upon the case against Gilbert for these words thou art a thiefe and hast stolen 20 loads of my furzes and upon not guilty pleaded it was found for the Plantiff and it was moved in arrest of judgement by Hitcham that these words are not actionable for though the first words of themselves had been actionable yet when those words are coupled with other words which do extenuate them it is then otherwayes for if a man say thou art a thiefe and hast stollen my apples or my wood it shall be intended that the apples and the wood were growing and he said there is no difference to say in this case you are a thiefe and have stollen 20 loads of my furzes but it was said by Iustice Warberton that the furzes shall be intended to be cut for that is the most natural and proper signification of the words and Hobert chiefe Iustice said that it is true that it is the most proper signification of the words but yet they are furzes when they are growing as well as when they are cut down and Hobert chief Iustice said if a man say of another thou art a thief and hast stollen my corn in this case the words shall be taken in the better sence and judgement in the principal case ought to be arrested and it was the opinion of him and of Winch that there is no difference where a man said thou art a thief and hast c. and thou art a thief for c. ut supra but it was adjourned Winch Iustice said I was of counsel in the Kings Bench in a case where a man had a window in the backside of his house and another man erected a wall within a yard and half of that in his own ground and adjudged in an action upon the case that the wall shall be broken down Warberton certainly this was an antient house but Winch said that made no difference It was ruled that after imparlance in debt upon an obligation the Defendant shall be received to plead that he was alwayes ready to pay notwithstanding it was strongly urged 13. Eliz. Dyer 306. is to the contrary Gilbert Lewings against Nicholas March. GIlbert Lewings brought an action of covenant against Nicholas March and deâ—lared that Charles Cornwallis had granted the next avoydance to the Church of D. to Thomas March and that Nicholas March was his Executor and that Nicholas March assigned this to Gilbert Lewings his executors and assignes to present to the same Church when that shall become void and covenanted that the same person who shall be so presented by him shall have and enjoy that without the let or disturbance of the said Charles Cornwallis or Nicholas March or any of them or any by their procurement and after Gilbert Lewings presents I. S. and after I. W. presented an other claiming the first and next avoydance by the procurement of Charles Cornwallis and ruled that the declaration was not good for it ought to say that Charles Cornwallis granted to I. w. the next avoydance and procured him to disturbe and that by his procurement he was disturbed Athow It seems to me to be but little difference to say he disseised me by the procurement of I. S. and he commanded I. S. to disseise me and he did that accordingly at his command Sir Edward Sackvil against Earnsby VPon a motion made by Sir Randal Crew in the behalf of Sir Edward Sackvil against Earnsby the case was that two brothers were seised of land to the eldest for life the remainder to the youngest in tail and they
seisin of the homage and therefore perchance it will be hard to finde my antient president they adjourned and at another day Hutton and Winch being only present judgement was given for the avowant against Whitgift and Hutton said that he had spoke with the other Iustices and they agreed Vpon a motion made by Towse the case was this a man made a lease for one year and so from year to year during the Will of the lessor and lessee rendring rent and the lessee died and the rent was behinde and by Winch being only present if the rent is behinde in the time of the lessee and he dies an action of debt is maintainable against his Executor in the detinâ—t only and so I conceive if that was behinde after his death he may have an action in the debt and the detinet or in the detinet only to which Brownlow agreed Secondly Winch said that when a man made a lease for a year and so from year to year at the pleasure of the parties that this is a lease for 3. years and not for two Thirdly he doubted if the lessee hold over his term so that he is tenant at sufferance what remedy the lessor had for his rent Vpon the reading of a record the case was that a Scire facias issued against the land Tenant to have execution of a judgement given against Ferdinando Earl of Darby in the 15. Eliz. and the Defendant pleaded that a long time before the said Ferdinando any thing had in the land one Edward Earl of Darby was seised of the land and being so seised 3. Mar. infeoffed I. S. to the use of the Lord Strange and his wife in tail the remainder over to the said Ferdinando and made the said Ferdinando heire to the estate taâ—le and pretended that by this meanes the land should not be liable to this judgement because it was intailed to Ferdinando and of such estate he died seised the Plantiff traversed the feofment made by Edw. Earl of Darby and the jury found that the feofment was made by Edward Earl of Darby to the same persons as the Defendant had pleaded but this was to the use of the feoffor for life the remainder over to the Lord Strange and his wife the remainder as before and whether this shall be intended the same Feofment which the Defendant had pleaded was the question because the estate for life was omitted and upon the special verdict that was the question and Attoe said that if the jury had found this feofment made to other feoffees though the estate had agreed this should be found against the Defendant and Winch Iustice said that there was such estate found as had taken away the execution or extent and the estate for life is not material but it was adjourned till another day A man Covenanted to make such assurance as shall be devised by the counsel of the Plantiff so the same assurance be made within the county of Norff. or the Citty of Norwich and the Plantiff assigned the breach and shewed that in this case his Councel devised that a fine should be leavied of the same land which was not done and it was moved by Serjeant Attoe that in this case the breach was not well laid because he had not shewed where his councel devised that the fine should be leavied In the case of a prohibition in case of a libel in the Ecclesiastical Court for the tithes of Cattles the Plantiff alleadged that those Cattle of which Tithes were demanded are for his Dairy and for the plough and Winch being only present said that the parson shall not have Tithes of such Cattle but if he bred up Cattle to sell it is otherwise secondly the Plantiff in the prohibition alleadged that time beyond memory the parishoners had paid a half peny for the Tithe of a Calf and a penny for a Cow and that upon a day limitted they use to bring this to the Church and to pay this to the Vicar and now the Vicar had libelled in the spiritual Court against them to compel them to bring it home to his house and Winch said that this is no occasion of a prohibition for they agree in the modus but vary in the place of payment and this is not matter of substance and for that reason no prohibition will lie Vpon the reading of a record the case was that the father made a feofment to the use of himself for life the remainder to his son and his wife and to the heires of the body of the son and this was for a joynture for his wife and the father died and the son also died and whether this was a good joynture was the question for all this matter was pleaded in barre of dower brought by the wife and it was ruled to be no good joynture for the feme notwithstanding that the father died in the life of his son and Hutton said if a man made a feofment to the use of himself for life the remainder to his Executors for years the remainder to his wife for a joynture this will be no good joynture within the Statute of joyntures though the feme here had the immediate franktenement In an action of debt against an Administrator who pleads outlawry in the Testator and it was moved that this was no plea for he had taken the Administration upon him Winch a man who is outlawed may not make an executor for if he meet with his goods he shall answer for them to the King and for that reason it seems to be a good plea 3. H. 6. 32. and Brownlow chief Prothonotary said that he could shew a president 27. Eliz. where this is adjudged to be no plea and Iustice Winch said to him shew that president if any such be and upon Tuesday after he shewed that and then Winch agreed Auditor Curle for words AUditor Curle brought an action upon the case and in his declaration he set forth the Statute of 32. H. 8. for the erection of the Court of Wards and that the same Statute appointed the Auditor of the same Court and shewed that the Plantiff was an Auditor of the same Court and that the Defendant such a day and at such a place said of him you have taken money for ingrossing of feodaries innuendo accompts and tunc et ibidem you are a Cozner and live by Cozning and I will prove that to be Coznage and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Finch Serjeant of the King that the Plantiff shall not have judgement upon this verdict for the first words are not actionable for the taking of money for the ingrossing of feodaries are insensible and then the inuendo will not help nor aid that also the words in the second place are not actionable because he had not said that he was a Cozning officer and so he had not expresly applied that to his office and
simple shall alwayes be supposed to have continuance if the contrary is not shewed to that he answered that is not so for the book of the 7. H. 7. 8. if in barre of assise the Tenant said that I. S. was seised and gave this is not good because he had not shewed quod fit seisitus existens dedit c. which being in a plea in barre is more strong then in a declaration to prove that a fee shall not be intended to have continuance without an express allegation and so he concluded that the declaration is naught but by Hobert Winch and Hutton it is very good notwithstanding this objection and Winch cited the 13. Eliz. in Ejectione firme where the life of the person was not cleerly alleadged but the declaration only was that the lessor was and yet is seised which was a sufficient averment of the life of the person and so the declaration is good and another exception was taken to the declaration by Hitcham Serjeant because that the Plantiff had declared that the Defendant had made conney borroughs and with the aforesaid conneys had eat up the grass where he had not alleadged any storeing of the coney borroughs before with coneys and then it is impossible they should eat up the grass to the prejudice of the Plantiff but to this it was answered by Serjeant Attoe that though the declaration as to that is naught yet the diging of the coney borroughs is to his prejudice and sufficient to maintaine the action which the Court granted and as to the matter in law Attoe argued for the Plantiff and recited the case to be that E. 3. granted to the Deane and Chapter of Windsor that they shall have free warren in the lands which yet they had not purchased and of which they were not seised at the time whether this is a good grant and shall extend to take effect after the purchase see Buckleys case and be argued that it is not a good grant and he put a difference between a warren and other priviledges which are flowers of the Crown which may be granted infuturo but a warren never was a flower of the Crown and for that reason a grant de bonis et cattallis fellon et fugitivorum may be granted and yet not be in esse at the time of the grant for it is a flower of the Crown and it is said 44. E. 3. 12. that the King may not grant a warren in other mens lands but only in the land of the grantee and upon this he concluded that this grant shall not extend to land after purchased and the rather because it is in the nature of a licence which shall be taken strictly see 21. H. 7. 1. 6. And Hobert chief Iustice said that this word demeans is derived of the French words en son manies and though the Lord of the mannor had the waste in his hands yet he had not the common and as to the confirmation by Ed. 4. they all agreed that this will confirm nothing to him but what was granted by E. 3. himself and then as to the licence pleaded that is of no effect for first the licence is pleaded to be made to one Sir Cha. Haydon and the Defendant did claime under him and this licence was made by the father which will not binde the son who had the land to which the common is appendant after the death of his father for a common may not be extinguished without deed and Hobert and all the Court agreed that the licence of the father will not binde the son and by the Court if nothing is shewed to the contrary within a week judgement shall be given for the Plantiff Davies against Turner DAvies brought a replevin against Turner and he declared of the taking in a place called the Holmes and the Defendant made conusance as bayliff to Sir George Bing for that one Clap held certain land of him by 20. s. rent and suite of Court and for the rent he avowed and alleadged seisin by the hands of Clap the Plantiff said that Chap held 40. acres of land by 9. s. rent fealty and suite of Court absque hoc that he held modo et forma and upon this it was demurred and the single point was this in auowry the Tenant alleadged c. and the question is whether he ought to traverse the tenure or the seisin and it was argued by Henden Serjeant that he ought to traverse the seisin and that the traverse of the tenure is not good and besides here is double matter for the conclusion sounds in barre of the avowry and in abatement of the avowry see a good case 18. H. 6. 6. for the falsness of the quantity of the land and the falsness of the quantity of rent the on goes in barre the other in abatement of the avowry 47. E. 3. 79. 5. H. 6. 4. and affirmed for good law And as to the second point he held the seisin to be traversable and not the tenure and first he said there was a difference between pleading in barre of avowry and in the abatement of the avowry for in barre of the avowry there the seisin is is not traversable by Frowick 21. H. 7. 73. which opinion he held for good law for it is agreed in Bucknels case Co. 9. he may not say that he held of a stranger absque hoc that the avowant was seised but otherwise it is when that goes in abatement of the avowry Secondly he said that the seisin is the principal thing and the principal thing ought to be traversed for if a man had seisin of many services seisin shall never be ayded till the Stat. of magna charta see Bucknels case Cook 9. and here the seisin is the most meterial thing and the most proper see 37. H. 6. Bro. Avowry 76. ne tiendra is no plea for a stranger to the avowry but he ought to answer to the seisin Thirdly the cause for which the seisin is traversable see a notable case per Danby 7. E. 4. 29. for the beginning of the services may be time beyond memory c. and for that reason may not be tried see 20. E. 4. 17. 22. H. 6. 3. 26. H. 6. 25. by Newton he may traverse the tenure Attoe contrary 13. H. 7. 25. to this it was answered that the number Rolle may not be found 5. H. 7. 4. 13. H. 6. 21. 21. H. 7. 22. by Frowick and Kingsmil Harvey to the contrary the case was that the Defendant made conusance as Bayliff to Sir George Bing for this that Chap held a messuage c. by certain rent and by suite of Court and the other said that he held 40. acres by 9. s. and suite of Court absque hoc that he held the messuage and the land modo et forma and he argued that it was a good traverse of the tenure and not double which was granted by Hobert and by Winch being only present and Hobert said true
doth not lye for for it is not averred that there was any fellony committed also Iustice Hutton held that in this case the declaration is not good because it is not expresly alleadged with an eo quod that the Plantiff stole the Vetches but only an indictment preferred containing such a matter and Iustice Winch said that the framing of an indictment in a Court of record is not any cause of an action for it is a proceeding in an ordinary Course of justice and for that reason ought not to be punished by an action upon the case for that will deterre and scare men from the just prosecutions in the ordinary way of justice Hobert chief Iustice was of a contrary opinion and yet he said that it is true that the ordinary Course of justice ought not by any means to be hopped or hindred and as that may not be obstructed so neither may the good name of a man in any thing which concerns his life be taken away and impeached without good cause for Courts of justice were not erected to be stages to take away the good name or fame of any man and therefore by the common law if two do maliciously conspire to judict a man without cause though the indictment it self be good and legally drawn yet a writ of conspiracy lies against those which caused this indictment to be preferred and it is as great a slander to preferre a Bill of indictment to the grand jury and to give this in evidence to them as it is to declare that in an ale house and as to the declaration he held that to be good without any averment of an indictment indeed and the indictment in writing and the preferring that to the grand jury containes the scandal and I am of opinion that an action upon the case lyes well see more after Easter 20. Jac. C. P. Hill against Waldron Easter 20. Jac. C. P. HIll against Waldron in an action of debt upon an obligation the condition was that I. S. shall levy a fine to the obligee before such a day of such land the Defendant pleaded that the obligee had not sued forth any writ of covenant the replication was that before the obligation made I. S. had made of feofment in fee of the same land to I. S. and that the feoffee continued in possession at the time of the making of the obligation and upon this the Defendant demurred and in this case two points were moved first when I am obliged that I. S. who is a stranger shall levy a fine to the obligee whether in this case the obligee is bound to sue a writ of covenant and it was argued by Serjeant Harvy that not yet he agreed that if the condition was that the obligor shall levy a fine to the obligee in this case the obligee ought to do the first act viz. to sue a writ of covenant as Palmers case Cooke 5. but otherwise when the fine is levied by a third person for there the obligor had took all upon him 4. H. 7. 15. E. 4. if I am bound to marry the daughter of I. S. and she will not marry me yet I have forfited my obligation and so here he ought to leavy a fine at his perill and at his own costs or at the costs of the obligor But admitting that the obligee ought to sue a writ of covenant because it appears by the replication that before the obligation made I. S. had made a feofment over and that the feoffee did continue possession at the time when the fine was to be leavied and therefore the obligee needs not to sue forth any writ of covenant because he who is to leavy the fine had disabled himself to perform that and he urged Sir Anthony Maines case where Cooke 5. the party needs not to tender a Surrender because that he who had the reversion had granted that over before the Surrender was to be made Serjeant Hendon to the contrary for he argued that the obligation is not forfeit except the obligee sue a writ of covenant and there is no difference between this case and when the obligor himself was to leavy a fine for the obligor had not undertaken for the whole fine but only that I. S. shall acknowledge a fine and if the obligor shall be compelled at his perill to sue a writ of covenant then you will construe the condition to extend to an unlawfull act for it shall be maintenance in him to sue forth a writ of covenant he vouched a case P. 4 Iac. Rot. 1548. Burnell against Bowle the condition of the obligation was that I. S. shall acknowledge a judgement in this Court to I. D. and in debt upon this obligation the Defendant pleaded that the Plantiff had not sued forth any orginall writ and it was holden a good plea and for the second point he held that the obligee ought to sue this writ of Covenant though that I. S. had dismissed himself of the land for the words are general that I. S. shall leavy a fine and this he ought to do though no estate pass by the fine for a fine upon release shall be a good performance of the Condition but otherwise if it had been to make a feofment in fee for a man cannot make a feofment except he be seised of the land at the time as 31. E. 3. debt 164. a man was obliged to present the obligee to such a Church and the obligee took a wife by which he had disabled himself to be a person yet the obligor ought to present him for otherwise he shall forfeit his obligation and so in this case Hobert and Hutton as to the first point held the barre to be good and that the obligee ought to sue forth the writ of Covenant for Hobert said he ought to do that for it is no reason to compel the obligor who is a stranger to the estate which passeth by the fine to sue a writ of Covenant and for that reason if I am bound to compel you to come upon such land to take a feofment I am not bound that the other make a livery of seisin but if the case was that I was obliged to you that I. S. shall leavy a fine to I. N. in such case the fine ought to be leavied at my peril though that I. N. will not sue a writ of Covenant Hutton according but Winch doubted of the case and as to the second point Hutton and Hobert agreed that the obligee as this case is needs not to sue a writ of Covenant because that I. S. had made a feofment of the land before and so had disabled himself at the time of the obligation for now it is impossible to leavy a good fine for if he should enter into the land and put out the feoffee this were not good within the condition and Hutton said it ought to be agreed that if I. S. had made a feofment after the time of the making
of the obligation and so had disabled himself afterwards and the obligor is bound that a fine shall be leavied this is to be understood of a good and a lawfull fine and not a fine in name only and he put the case that I let for years and after Covenant to make a feofment to I. S. this lease for years is a breach of the Condition though at the time of the Covenant made the lease for years was made Iustice Winch thought the contrary for this disability is by the act of a stranger and for that the obligor may not take any certain notice of that and therefore if I am obliged to you that I. S. shall enfeoffe you of his Mannor and at the time I. S. had made a feoffement of two or three acres of the same Mannor yet if he enfeoffe you of that which he was seised at the time of the obligation this is a good performance of the Condition though that 2. or 3. acres were disjoyned from that before and so in this case the obligor being a stranger to the estate of I. S. if I. S. make such an estate as he had at the time of the obligation made this is sufficient upon which he concluded that the Plantiff shall not have judgement but afterward judgement was commanded to be entered for the Plantiff according to the opinion of Hobert and Hutton Hoels case HOels case upon a special verdict was to this effect a man was seised of 2. acres of land in fee and had 2. sones and he devised both the acres to his wife for life the remainder of one acre to his eldest son in fee the remainder of the other acre to his youngest son in fee upon this condition in manner and form following if either of my sonnes die before my depts and legacies are paid or before either of my sonnes enter into their part that then the longest liver shall have both parts to him and to his heires in fee and the devisor died and Hoel the Plantiff being the eldest sonne in the life of his mother released all his interest and his demand in this to his younger brother and the doubt was whether this condition was gone by this release and Attoe argued that it was gone for Littleton saith that every land may be charged one way or other see Anne Mayowes case Release Coo. 1. Albaines case power of revocation released see more of this afterwards Trin. 20. Jac. C. P. Whitgift aganist Sir Francis Barrington IN Replevin the Defendant avowed as Baliff to Sir Francis Barrington and that Whitgift the Plantiff held certaine land of Sir Francis Barrington by escuage et quendam reditum and that the said Sir Francis was seised by the hands of Whitgift his very Tenant and for homage he avowed and upon this the Plaintiff demurred first because he had avowed for homage and had not shewed how nor in what manner the homage is due whether in respect that the tenancy come to him by discent or by purchase and for that this general allegation is naught for by Hendon Serjeant all the presidents in such avowryes made mention of the title to the homage as 4. E. 4. in avowry for homage the tenure is shewed and a discent alleadged or a purchase of the land and in no book or in any president that he ever yet saw did he see such a general allegation in avowry for homage but he agreeth the book of the 44. E. 3. 42. if the avowry is upon tenant by the curtesie this general allegation is good but otherwise of a tenant in fee simple and for that he alledged the second E. 3. avowry in a replevin the Bishop avowed for homage due by the Plantiff and exception was taken because it was not shewed in whose time the death of the ancestor was whether in his own time or the time of his predecessor and ruled to be evill for his avowry being his title he ought to shew that in certaine and so in our case Hobert this case doth not prove our case for in our case prima facie it is certain to all intents and purposes and I cannot see how an avowry may be better made and Finch at the barre vouched a president in the book of entries title horse de son fee secondly where such a avowry as in our case is made and then Hendon moved that the avowrie is not good for he had shewed the tenure by homage and by escuage and rent de quo quidem redditu he was seised c. and this is also repugnant for when he said that he was seised of the rent by the hands of the Plaintiff this is a seisin of the homage as Bevils case is and then by his own shewing because the seisin of the rent is a seisin of the homage he shall not have the homage of the Plantiff Thirdly admitting this point against him and that the seisin of the rent is not seisin of the homage yet the pleading is not good for when he expresly alleadged seisin of the rent in this manner de quo quidem redditu he was seised this excluded the seisin of any other services but only of the rent which is expresly alleadged and therefore in our case he ought to have alleadged generally de quibus serviciis he was seised and to leave this to the construction of the Law and he vouched 13. H. 7. 31. Serjeant Harvy to the same intent for though perchance no good reason may be given wherefore the pleading shall be such and that the seisin of the homage ought to be expressed yet because all the presidents are so the course of pleading shall not be altered and all the presidents shew a seisin of the homage see the book of entries 597. and 598. Serjeant â—owse to the contrary the book of the 19. E. 2. Recovery 224. is that the alleadging of the seisin or escuage as in our case of tent is a sufficient avowry for homage and 29. H. 3. such an allegation of the seisin of rent was made in avowry for fealty and good Hutton if the book of the 19. E. 12. be as Towse had alleadged it is all one with our case Hobert seems the avoury is good notwithstanding this last exception for perchance he was not actually seised of the homage by the hands of the Tenant himself and then by his own shewing his avowry shall abate and he demanded of Brownlow if there were any such president of an avowry who answered no. Hobert if the continual pleading be as my brother Harvy had alleadged we will not alter the course of pleading but in my opinion in reason none may plead in better manner or form and Hutton being only present agreed and then Hobert commanded the presidents to be searched concerning that matter and Finch at the barre being of Councel with the avowant said that till the resolution in Bevils case it was a great question whether the seisin of the rent was the
son and his wife and upon a demurrer the question was whether this Covenant did raise a present use to the Son and to his wife or whether this only rests in Covenant and Harris Serjeant argued that no present use will arise by this Covenant for first all other Covenants in the indenture are in the future for the words are that the lands shall remain and come c. and therefore till the death of the Covenantor the fee simple is in him and no use will arise for it shall be in the election of the Covenantor what estate he will make to his Son for he himself shall interpret his intent and the difference in our books is when the words are in the present tense and when in the future and for this he cited 22. H. 7. by Iustice Rede if a man Covenant that land shall discend remain or revert he said this did not give any present interest because the wors are in the future and it is in the election of the Covenantor how and in what manner the land shall pass and there he put the case that if I give my horse or my Cow to I. S. there the Donee had election to take at his pleasure the one or the other because the words are in the present tense but if the words are that I will give a horse or a Cow there the Donor had election which he shall have because the words are in the future the Lord Borroughs Covenanted 34. H. 8. Dyer 55. with another in frank marriage with his son that immediately after his death his son shall enjoy the use of his land of inheritance according to the course as then they stood and the question was whether the see simple was presently out of the Covenantor and the opinion was that it was not because it was but a Covenant and did not change the fee simple and so is Dyer 96. Sir Thomas Seymor promised and Covenanted by indenture in consideration that the Covenantee had granted land to him that he would leavy a fine to Wimbish and Pennoy of other lands which fine should be to Sir Thomas Seymor for life the remainder to the Covenantee in taile and no fine was levied and the question was whether any use was raised by this Covenant to the Covenantee and the opinion of the book is that not because it is in the future and he cited the 20. H. 7. 10. the Duke of Buckingham in consideration that the Lord Henry his brother was to marry the Lady Wiltshire he Covenanted with Bray and with others that the Mannors of D. and of S. shall be to the Lady and to her heirs of her body begotten by the said Lord and after the Duke granted to the Lord Henry and his wife for their lives and it was argued whether this second grant is good or no for if it is then the first Covenant will not work to raise an use to the feme and the book left that as a quere and if it be then he argued that in the principal case no present use is raised but that this rests meerly in Covenant and so he prayed judgement for the Plantiff Serjeant Hendon to the contrary for he thought this will raise a present use and that this was the intent of the parties that this should raise a present use for the intent was to advance them first during their lives with the rent and after the death of the Covenantor and his wife with the land it self and therefore of necessity this will raise a present use for a bare action of Covenant may not be any advancement at all and the rather here because they who take benefit of this are strangers to the Covenant and not Preston himself for as it appears by 3. H. 7. a stranger shall not take benefit by a Covenant and therefore he said the intentions of the parties was to raise an use for otherwise there shall be no advancement at all And further the words in the indenture are Covenant and grant and if no use is raised then this word grant is idle and every word shall be so expounded that they may take effect and the word Covenant is insufficient of it self to pass an estate in land or to have any estate in signification other then to a meer Covenant and to be obligatory as is put Co. 2. Cromwels case Tirrels case there vouched a lease for years provided and it is Covenanâ—ed and agreed there the Covenant is a condition and also a Covenant and 8. Ass 1. 12. it is agreed that if I Covenant that an other shall have my land for 7. years this a good lease of the land it self and it was adjudged here Tr. 2. Jac. Rot. 1696. accordingly and in our case this word Covenant and grant is also sufficient to raise an use and to give an interest in the land it self and yet he agreed that if there was an other act to be made by the Covenantor or the Covenantee that then no use will arise but it shall rest only in Covenant Dyer 162. there are Covenants between the Lady Vere and Sir Anthony Wingfield her son that the said Lady would convey to her son by a recovery and that after 6. moneths the said Sir Anthony shall make an estate to his Mother for life and there it is doubted whether the use is changed within the 6. moneths and it was holden that it was not Mich. 20. Jac. C.P. for then it is impossible that the Covenants should be performed and in that case it is in the power of the Covenantor to make an act that the Covenants shall not be performed and therefore Covenants will not raise an use but in our case no act of the Covenantor may hinder that this use shall arise and therefore good and for that the difference is Dyer 296. which is entered 11. Eliz. the Roll of which I have seen the father upon the marriage of his son promised to the friends of his wife that after his death his son shall have his land to him and his heirs and the book is ruled that this did not change the use and the reason was this Covenant was by words and not in writing but it was not doubted if this Covenant had been by writing but that the Covenant will raise an use which is all one with our case and so was Callard and Callards case 37. Eliz. stand forth Eustace reserving to my wife and my self I give to thee and thy heires and there it was doubted whether any use will arise to the son and ruled that not because this was by words only but it was also agreed that if these words had been by writing they had been sufficient to raise an use to the son and he cited Dyer 232. before the Statute of the 27. H. 8. A Covenanted and agreed with B. that upon the marriage of his son with the daughter of the other that he would retain his land for life and that
the very Common Law see Ouleys case 19. Eliz. in Dyer but Hutton doubted whether this bond is void by the Common Law because the Statute of the 23. H. 6. inflicts so great specialty upon the Sheriffs for extortion and after judgement was Commanded to be entred for the Defendant in the action if no other matter be shewed to the contrary before such a day In trespas quare vi et armis one such being his servant cepit et adduxit at D. in Essex the Defendant pleaded that he was a vagrant in the same Countie and he not having notice that he was servant to another he retained him and it was moved by Finch if I retain the servant of another man in the same Countie where I and his Mr. inhabit this is not justifiable though in veritie I had not notice of that and this according to the express book of the 19. Ed. 3. 47. Hobert the book may not be law for it is a hard matter to make me take notice of every servant which is retained in the same Countie and yet perchance if this retainer be upon the Statute of labourers at the Sessions this is notorious and I ought to take notice of that at my peril but it is otherwise of a private retainer for though it is within the same Countie yet being a private matter in fact the Law will not compel me to take notice of that at my peril otherwise if this be matter of record 2. H. 4. 64. and Hobert and Winch seemed to agree and then Finch moved that the Plantiff had charged the Defendant with his servant by cepit et adduxit and the Defendant excused himself and never traversed cepit et adduxit see 11. H. 4. Hutton and Hobert the receiving and the entertaining of a servant may not be said to be vi et armis Mr. Spencers case HArvy Serjeant came to the barre and demanded this question of the Court in the behalf of Mr. Spencer a man was seised of land in fee and sowed the land and devised that to I. S. and before severance he died and whether the devisee shall have the Corn or the executor of the devisor was the question and by Hobert Winch and Hutton the devisee shall have that and not the executor of the devisor and Harris said 18. Elizabeth Allens case that it was adjudged that where a man devised land which was sowed for life the remainder in fee and the devisor died and the devisee for life also died before the severance and it was adjudged that the executor of the Tenant for life shall not have that but he in remainder and Winch Iustice said that it had been adjudged that if a man devise land and after sowe that and after he dies that in this case the devisee shall have the Corn and not the executor of the devisor nota bene Dodderidge against Anthony Entred Mich. 19. Jac. Rot. 1791. ENt. Mich. 19. Jac. Rot. 1791. Peter Dodderidge brought an action of accompt against one Anthony and he declared that he deâ—ivered to the Defendant so many pieces of cloath called Bridge-water red to be sold at Bilbo in Spain and the Defendant said that he sold the same cloath at Bilbo in Spain for 40. l. 18. s. English to be paid in May next insuing the sale which was in November before and over he alledged the Custome of Merchants to be that if any Merchant had goods in the same Kingdome to be sold to another Merchant and he sell the goods to be paid at a day to come and this is done before a publick Notary and thereby a Bill signed and acknowledged to him in his name who sold the goods and that if the Merchant who so sold the goods delivered the Merchant who was owner of the goods this Bill so taken in his name this shall be a discharge to him of the goods and he averred that he sold them to a Spanish Merchant and that he took a Bill accordingly and at London offered that Bill to the Plantiff who refused that and upon this plea the Plantiff demurred Attoe argued that the plea is not good because he had not alledged that the partie who takes such a Bill may plead that and the Custome is also alledged with an if if the party sell and if he take the Bill and not with positive averment that he may so sell and may so take the Bill which being delivered to the owner of the goods shall be a discharge to the factor who sold the goods and here this custome is not good by the Common Law for if I deliver goods to another to sell and he sell them to be paid the money at a day to come this is not good for he ought by his sale to make a compleat contract and if I sell my horse for 10. l. I may retain the horse till the money is paid for till then the contract is not compleat and so in this case and here the Plantiff shall have an action of accompt upon this delivery and if he sell them otherwise or do not sell them for ready money he had gone beyond his Commission and this Custome is unreasonable that the Bill shall be taken in his name who sold the goods but perchance if the custome had been alleadged to take the Bill in the name of the owner of the goods this had been good but in our case the owner of the goods may not sue nor have any remedy for his goods except the factor will go into Spain and sue the said Bill and it is unreasonable to leave this to the pleasure of my factor whether I shall have any remedy for my goods sold and it is very unreasonable that I shall be paid with a Bill which may not be sued and here the Plantiff is a stranger to the Custome of Spain and shall not be bound by that Serjeant Harris to the contrary the Custome which is alledged is good among Merchants though it is not good according to our Common Law and so if two Merchants trade joyntly and one of them dies before severance of the goods yet his executor shall have his part and not the Survivor and so by the law of Merchants a man cannot wage his law in debt upon a simple contract by which it is apparant that the laws of Merchants differ from our laws and indeed the laws of Merchants are National laws and that this is the Custome in Spain is confessed by the demurrer and then we may not examine that by the reason of our laws and the laws of Merchants ought to be favoured for trading sake which is the life of every Kingdome and by the law of Merchants a Bill without seal is good and yet by our law it is but an escrowl and so I pray judgement for the Defendant Hobert chief Iustice when the Merchant had delivered goods to the factor to sell he had made the factor negotiator gestorum and for that
against Hutchinson and made title to present to the Church in the right of his wife and after the issue joyned and before the venire facias the wife died and the Plantiff shewed that himself had took out a venire facias in his own name and upon that Harris demurred in law because he supposed that the writ was abated but Winch was of opinion that the writ was not abated because this was a Chattel vested in the husband during the life of the wife Ferrers against English IN an action upon the case upon a promise between Ferrers and English and upon non assumpsit it was found for the Plantiff and now it was moved in arrest of judgement that the venire facias was not well awarded for it was proecipimus quod tibi venire facias Duodecim liberos et Legales homines Coram Henrico Hobert apud Westmonasterium where that ought to be Coram Iusticiariis nostris and therefore the writ being insufficient it is not amendable and for that he cited the case where the venire facias was awarded to th Coroner and that ought to be awarded to the Sheriff and this adjudged to be erroneous this case was answered that this was the custome and there was a case alledged to be adjudged 30. Eliz. between Cesor and Story where a Capias did issue out of this Court in this form Ita quod habeas Corpus ejus Coram Iusticiariis omitting apud Westmonasterium and this was reversed for error but this was answered to be in an original which ought to be precise in every point but Serjeant Crook said that because this was but judicial process and the trial is taken upon the habeas corpus that it is amendable for in all cases where the roll is right though there be an error in the venire facias yet this is amendable Sir Robert Nappers case A Rent was granted to Sir Robert Napper and if it happen that this annual rent to be behinde that then the land shall at all times be open and subject to distress of the Grantee according to the true form and effect of the said indenture and upon all the pleading a demurrer was joyned and the sole doubt was whether the last words were a distinct covenant by themselves for if they are then the obligation is forfeit for the lands are not open to distress because that the mother of Sir Robert held that till the age of 24. years or whether they are part of the former covenant and then the former worde will qualifie that because there was not any act made by him to the contrary and it was argued by Bawtrie that they are all one covenant for they charge the land with the Annuitie and he covenants that this shall be open to distress and it is all one matter and thing and is therefore a covenant and where one covenant doth depend upon another there one expounds the other so Dyer in Throgmortons case 151. and he urged many cases which are cited there and he cited the Lord Cromwels case where words of proviso are placed between words of covenants yet they will work according to the intent of the persons and there it is said that ex antecedentibus et consequentibus fiat relatio and so it appears to him that this referred to the estate which Sir Thomas had from his father and that he made nothing to impeach or to alter that and he cited the case of Sir Moile Finch though by the fine the Mannor of Beamstone was destroyed yet in the said indenture free egress and regress was reserved to the Courts for the Lady Finch afterwards an other fine was levied of all the lands and Tenements except the Mannor of Beamstone where in verity that was destroyed before and yet the judges did construe this to be a good exception because this was in verity the intent of the parties and there they made a construction upon the covenants which did lead the fine and upon the latter indenture which did direct the others and so the principal case in Althams case the judges did not only adjudge upon the first words of the lease but upon altogether and he cited the case of Hickmote where the exception extends to all the parties of the precedent deed and Hendon argued to the contrary that they were several covenants and yet he granted all the cases cited by Bawtrie but said they all stood upon this difference where it is a joynt thing and where it is a several thing as here and for that reason that ought not to be applies to that for they are distinct sentences and not joynt as is expressed in Sir Henry Finches case Coo. 6. and they ought to be construed as distinct covenants for otherwise they shall not take effect at all for then he had not any remedy for the rent which is expresly against the intentions of the parties and Crawley Serjeant said that if the two first covenants were according to the title and the last was only conditional if the rent was behinde that then it should be open to distress and the Court seemed that they were several covenants but judgement was respited for that time and the same Term the case was moved again by Hendon that they were distinct covenants and that this was the scope of the indenture and the intention of the parties that this should begin presently and secondly the two covenants are of several natures and if the third covenant be not several then it is idle for all is implied in the first and day was further given to advise of that but the opinion of the Court seemed to be for the Plantiff See after Trin. 22. Iac. Westlie against King VVEstly against King in debt the bond did bear date the 11th of February 18. Iac. and this was to perform an award Ita quod the ward be made before Easter of all controversies depending between them in the Star chamber and the Defendant pleaded that there was no award made in the mean time and the other shewed the award and assigned the breach and the Defendant replied that before the award was made c. upon the 16th of March they discharged the Arbitrators and so concluded as at the first they made no award and now Serjeant Davenport moved that he had not maintained his bar quod non fecerit tale arbitrium and have given the discharge in evidence for now it appears that the bond is forfeit but Hutton said that the Plantiff ought to have shewed this discharge and so he had shewed the forfeiture and he said further that the rejoynder is an affirmation of the bar if they were discharged then they made no award and this notwithstanding shewed a forfeiture of the bond but not upon the point which the Plantiff had alledged and Winch said though this is is so yet it appears that the Plantiff had cause of action by all the record before and day was given over in the case
and at that day the Court was of opinion that judgement shall be given for the Plantiff for by the rejoynder the Defendant had shewed that he had forfeited the bond though that be another matter then is in the replication and so he shall have judgement super totam materiam according to the judgement in Francis Case Coo. 8. for their the declaration stood good though the Plantiff had not cause of action in the same manner yet because it appeared he had cause of action he shall have judgement Weaver against Best VVEaver against Best in debt for 48. s. in the debet and detinet and for 2. shirts in the detinet only and he declared that the Defendant such a year retained the Plantiff to be his servant in husbandry giving him 48. s. and a shirt by the year and he shewed that he retained him for the next year and he averred that he served him and they were at issue upon nihil debet and the Plantiff had a verdict for him and it was now moved in arrest of judgement by Serjeant Brigman because he had not shewed that his retainer was according to the Statute of the 5th of Eliz. which Statute limitteth the form of there retainer and their wages and other things and he had not shewed the place where service was and also he had joyned two debts in one action one in the debet and detinet the other in the detinet only and Winch Iustice said that the Statute of the 5. Eliz. extends to such as are retained in husbandry and therefore other retainers are left as they were before the Statute at the Common law and this shall be intended to be a retainer according to the Statute if the contrary be not shewed by the other partie for his retainer was for a year and therefore it shall be intended that the wages was appointed by the Iustices and it was also said by the Court that if the justices of the peace in this kinde do neglect to set down the wages yet a servant may bring an Action upon his own contract also it was said that he needs not to shew the place where he served for if he did no service yet if he did not depart it is very good and for the other matter it was clear that he may bring his Action so by several precipes in one writ Thornes case IT was agreed clearly between Thorn and C. that where an obligation is made and the obligor and the obligee conferred about it and the obligor said to the obligee that he had forged this this is actionable for here it refers to a certainty but if he had said to the other thus he was a forger and had forged falsâ— writings no action will lie for the words are to general in that case also it was agreed clearly by the Court the Sheriff may not arrest a man upon a Capias after the time of the return of the writ Grasier against Wheeler Grasier as Executor brought an action of Covenant against Wheeler upon a lease made by the Testator rendring rent and this was made by I. S. and the Defendant covenanted that the lessee should pay the rent and the Plantiff assigned the breach in non-payment of 30. l. to the Testator such a day when it was due and for 10. l. due in his own time and the attorney of the Defendants as to the 10. l. pleaded non sum informatus and as to the other he pleaded that the Defendant paid to the Testator 7. l. in money and a horse in full satisfaction of all the said 30. l and that the Testator accepted that in full satisfaction and the Plantiff said that this was paid to the Testator for another debt absque hoc that he received that in satisfaction of the 30. l. and now Devenport argued that the issue was misjoyned for the issue ought to have been taken upon the payment and not upon the acceptance and he cited Pinnels case Coo. 5. where the payment in full satisfaction ought to be pleaded precisely and he said that he agreed to the case of Nichols Coo. 5. where the issue was joyned upon payment upon a single Bill and found that this was not paid and the Plantiff had judgement but if the issue had been found for the Defendant that had not been aided by the Statute for though it had been paid yet that was no bar Bridgman contrary and he said the difference is where the issue is joyned upon a matter alledged by the adverse partie and they are at issue upon a point which is not material that is aided by the Statute of the 18. Eliz. and where no issue at all is joyned there is not any help Winch Iustice said that this is an issue which will make an end of the matter And at another day this Tearm Serjeant Harvey moved the case again in arrest of judgement because the issue is joyned upon the acceptance which is not material and he cited Fowkes case depending in this Court debt upon an obligation and the Defendant pleaded the acceptance of another obligation in satisfaction which in verity is no bar and issue was taken upon that and it was doubted whether this being insufficient be aided by the Statute or not Bridgman Serjeant said to the contrary and he said as before that because the issue is taken upon the allegation of the Defendant if it is not good yet it is aided by the Statute of 32. H. 8. and Hutton said this is a full issue and as to the traverse said it is a material issue for he pleaded that he accepted them for another thing absque hoc that he accepted them in satisfaction of the 30. l. which is the most proper issue for he said it is clear that he may say that he accepted them for part c. and good and so here The Countess of Barkshire and Sir Peter Vanlore in Dower IT was agreed clearly in Dower between the Countess of Barkshire and Sir Peter Vanlore that if the Tenant plead never seised to have Dower and in verity the husband of the demandant had an estate but that was by disseisin which is avouched by the entrie of the deseissee who had a title paramont this is no title by which she may have Dower though they are at issue upon this plea and also it was agreed that if a man had a good estate by bargain and sale from him who had right to alien that and yet after he accepts a fine upon conusance of right as that c. from the other partie though in this case this be a conclusion to the parties between whom the fine was to denie that the land was of the gift of the Conusor and so that he was seised yet it is not any conclusion to the jurors to finde the verity of the matter in fact and that he had nothing of the gift of the Conusor also it was agreed in that case if a man held lands
Plantiff in Hammond which indenture rehearseth that King Henry the eight was seised of this land in his demeasne as of fee in the right of his Crown from him conveyed that to Ed. 6. who in the 7. year of his Raign by his letters patents bearing date at Westminster he granted that to one Fitz Williams to Hilton in fee as by his letters patents may appear they being so seised by indenture which bore date c bargained and sold that to Henry Hoskins and to Proud also recited that Proud releaseth to the said Hoskins all his right as by the said release may appear and conveyed that to Iohn by discent and so the said Iohn being seised he and his son Peter made this conveyance to the Plantiff upon a good consideration in which they did covenant with the Plantiff in this manner and the said Iohn and Peter for them and there heirs do Covenant and grant to and with the Plantiff c. that they the said Peter and Iohn Hoskins according to the true meanâ—â—ing of the said indenture were seised of a good estate in fee simple and that the said Iohn and Peter or one of them have good Authoritie to sell that according to the intent of the said indenture and that there was no reversion or remainder in the King by any Act or Acts thing or things done by him or them and the Plantiff laid the breach that neither Iohn nor Peter had a lawful power to â—â—ll the Defendant pleaded that Iohn had a good power to sell that according to the intent of the said indenture notwithstanding any Act or Acts made by him or his faâ—her or by any claiming under them and upon that the Plantiff demurred and the case was now argued by the Court and Iones Iustice began and said that his opinion was that the Plantiff shall be barred the case being upon construction of covenants and the sole question is whether they are several covenants or only one covenant and I held that they are all one covenant and those words for any Act or Acts do relate to the two other precedent sentences and so it is all but one covenant though this stand upon several parts for if these words were placed in the fore-front there had been no question but that this had been but one covenant and this made no difference when it is set before and when it is set after and the repeating of that had been toutalogie for if I covenant I will build a house at Dale Sale and a vale of Brick here Brick shall refer to them all because it is tied in one entire sentence and covenant and so if I covenant with you that I will goe with you to Canterbury to Salisbury and Coventrie here the word goes relates to all 3. as in the case of Sir Henry Finch the rent was granted out of the Mannor of Eastwel and not of the Messuage lands and Tenements lying and being in the Parish of Eastwel or else where in the same Countie belonging thereto and resolved that land which is not parcel of the Mannor is not charged with the rent because it is all but one sentence and one grant and cited the case of Althams case and Hickmots case where special words will qualifie general words where they are all in one sentence and so I conceive they are but one covenant Cook 8. 9. especially in the intents of the parties and upon the intents of all the parties of the deed for when a deed is doubtful in construction the meaning must be gathered from all the parties of that but yet that is tied with two cautions that it be not against any thing expressed by the said indenture but only in case where it is doubtful Cook 2. 5. so Cheineys case and Baldewins case a habendum will destroy an implied premisses Cook 4. but not an expressed and so in Nokes case an express particular covenant qualifies the generalty of the implyed covenant like to the case which was 32. Eliz. in the Court of Wards between Carter and Ringstead Cook 8. where Carter was seised of lands in Odiham and of the Mannor of Stoy and there covenanted that he would Levie a fine to his son of all his lands in Odiham in tail and for the Mannor of Stoyes that should be to the use of his wife now these subsequent words drew that out of the tail according to the intent of the parties and so in our case and I also take an exception to the form of the declartion for he conveyes that to Fitz Williams and to Proud and Hoskins by the name of all his lands and Tenements which were in the tenure of Anne Parker and did not aver that these lands for which the Covenant was made were in her hands and for that it is not good and for these reasons I conceive the Plantiff shall be barred The argument of Hutton Justice HUtton to the contrary I hold that they are 3. several Covenants and yet I agree the cases afore cited and the reason is they are all included in one sentence for it is the care of the Purchasor that he had an owner of the land before he purchase for that which is the ground of assurances that he is seised in fee and hereafter that the Covents that this is free from incumberances made by him and that he had good title to alien which strikes at the very root of assurances and my first reason is because here are several parties and they covenant that one of them is seised of a good estate and that they or one of them had power to alien that for it may not stand with the intents of the indentures to buy of him who had no title and might not sell and also the last Covenant is meerly in the negative that they have made no Act or Acts by which the reversion shall be in the King and that is all one as if the word Covenant had been added in every clause of the sentence and Covenants in law may be qualified by express Covenants but if a man made a lease for years upon condition to pay 20. l. in this case an entrie by the law is implyed for default of payment but yet if it added that if it be behinde he may enter and retain till he is satisfied of the 20. l. now in this case this had taken away the implyed Covenant and condition but every express Covenant must be taken most beneficially for the Covenantee and in Nokes case it is said that an express Covenant controuls an implied one but he may use either of them at his pleasure and election and I grant Henry Finches case to be good law for there is not any clause or sentence till after the Alibie but yet in Dyer 207. they are distinct sentences and shall receive several constructions and so here the matter being several they shall receive divers constructions and he Covenanted that
and died by whose death the Church became void the which was the first and the next avoydance after the grant and Harcourt presented Cardon and that the said Arthur Basset so being seised in fee 18. Octobris 17. Eliz. by his will in writing devised to Iohn Basset his son the first and next avoydance of the Church aforesaid which first and next avoydance hapned after the death of the said Arthur Basset and that the said Iohn Basset was possessed of the said next avoydance and the said Chardon being incumbent 29. of September 37. Eliz. he was elected Bishop of Down in Ireland and he being so Elect the Queen by her letters 37. of her Raign considering the smalness of the said Bishoprick that it was not able to maintain him in his episcopal dignitie ex gratia sua speciali concessit Lycensavit et potestatem dedit to the said Chardon Bishop elect that he with the said Bishoprick the rectory of Tedbome in comendum ad huc recepire et fructus de c. in usus suos convertere disponere et applicare valeat et possit habendum that in Comendam for 6. years and within the 6. years he was consecrated and after the Term of the 6. years the Church became void per legis Anglie and that the Queen by her prerogative presented one Bee who was admitted instituted and inducted and the Plantiff conveyed from Iohn Basset his title by his grant of the next avoydance and shewed that the said Church became void by the death of Gee and that the vacation by the death of Gee is the next avoydance after the death of Arthur Basset by reason whereof the Plantiff presented and was disturbed and upon his decla ration Edwards the patron demurred and the Bishop claimed nothing but as ordinary and Manering pleaded and confessed the seisin of Arthur Basset and the grant to Manwood and the presentation by Harcourt of Chardon and the devise to Iohn Basset but he shewed that after the death of Arthur Basset the Acre to which the advowson is appendant descended to Thomas Basset as c. and he being so seised the Church became void by the death of Chardon who had the next avoydance after the death of Arthur Basset and that this remained void by 2. years after his death by which the Queen presented by Lapse the said Gee who was admitted c. and Thomas Basset conveyed that to Edwards and that became void by the death of Gee and that he presented the said Mannering c. absque hoc quod praedicta vacatio Ecclesiae praedictae post Mortem de Gee was the first and next avoydance after the death of Arthur Basset as the Plantiff had alleadged and upon this bar the Plantiff demurred and it was argued by the Councel of both sides on several dayes and in Michaelmas Term ensuing it was argued by the Court but because that Harvey was newly made Iustice he did not argue the case but Iustice Hutton began The argument of Justice Hutton ANd Iustice Hutton after a recital of the case said that his opinion was that the Plantiff should be barred and in the first place it is to be considered whether the King had any title at all to present by the Creation of Chardon to be Bishop Secondly admit that he had title whether he had dispensed with that and by his dispensation he had satisfied his prerogative Thirdly admit that the King had title and that this was not satisfied with the Commendam whether the grantee had lost his turn and as to the first point it ought to be agreed that when a parson is made a Bishop that he is discharged of the Church by the Common Law and so is the 45. Edw. 3. 5. and Dyer 159. petit Broo. 116. and this is an avoydance by Cession and for any thing that I see in our books the King had not any title to present except that he himself was patâ—on but because that did not happen fully in question here I will not deliver any opinion but I will say what our antient books do lay 41. Edw. 35. adjudged that the King shall not present to a prebendary where the prebend was made Bishop and the tithe which the King had to present was by reason that the temporalities of the Bishoprick of which he was prebend was in his hands and see the 7. H. 4. 25. a good case 11. H. 4. 37. Dyer 228. and for Brooks presentation 61. that is but the report of the Chancellor who had that in presentation but our Common Law doth not warrant any such thing and then for the second point whether the King had dispenced with his prerogative and in the first place we are to know that these Commendams were at the first but to see the cure served and by the opinion of Pollard the ordinary is to see the cure served though that be charged with such rents that none would have it and for that Commendams were at the first good but now if the King had title then that began per the consecration otherwise he shall never have it and so is 41. Edw. 3. 5. if consecration doth not give that he shall never have it and hereby his grant to hold that in Commendam he had dispenced with this prerogative and if this had been granted to him for his life none will deny but that he had dispenced with his prerogative and shall never take advantage of that again afterwards and no more in this case for he is incumbent to all intents and purposes for Fitz N B. 36. he may have a Spoliation and yet in this case he is parson and Bishop and now that the King may dispence with that it is not to be doubted and I will compare that with the like cases A. 6. Eliz. Dyer 252. where the King granted the Custody of the land and heir of his Tenant if he died his heir being within age and this grant was to Cantrel and it was agreed to be good and Wardship is as Royal an antient perrogative as any appertains to the Crown and 3. H. 6. title grant 61. the King may grant the temporalities of the Bishoprick before it is void which in my opinion is Cosen German to our case out of which book I conclude the King may dispence and by the dispensation he is full parson and this is for his life for the King may not make him incumbent except it be for life like to the case of Dyer fo 52. where the patron and the ordinary made a confirmation of a lease for part of the time which was made by the parson and agreed that this shall stretch to the whole time and no better case may be put then the case of Packhurst in Dyer 22. 8. where Packhurst was incumbent of the Church of Cleave and was made Bishop of Norwich but before he was created Bishop he had a dispensation from the Arch-Bishop to retain that in Commendam for 3.
years then this is void by resignation and so is the case of Packhurst that when he resignes during the years of the Commendam the Patron shall have that and not the King and so also my opinion is clear that if he had died within the 6. years limitted by the Commendam that the King shall not have that for then it is void by death and not by the assumption of the Bishoprick which book proves directly that a Commendam may be aswel for years as for life but yet I do not hold that upon those temporary Commendams if the Bishop continued Parson during the years and made no Act to impeach that then is a void cause S. the assumption of the Bishoprick and then when that is determined the supension is determined and it is void by the original cause S. by the assumption of the Bishoprick and this Commendam doth not turn the second or first Patron to any prejudice for the incumbent is still in by the presentation of the Patron and the determination of the Commendam is not any cause of the avoidance of the benefice but this is quasi non causa which is causa stolida as the Logicians do term it but in this case the assumption is the cause of the Cession and it is like to the case of 25. Ed. 3. 47. where the King brought a quare Impedit against the Arch-Bishop of York for a Prebendary vide the case and ruled in that case that the confirmation of the King had not taken away his title to present and the reason was because the confirmation had not filled the Church but continued that full which was full before and here this temporarie Commendam may not restrain the King to present afterwards for this is not a presentation and therefore may not take away the title of the King and here the Plantiff hath not well expressed it for he hath not shewed in this Court that the presentation of the King was lawful neither that Chardon held that by vertue of the Commendam for all the 6. years but only that the Church became void by the Laws of England and that is not sufficient and then if all before were for the Plantiff yet the question is whether he hath lost his turn and I think that he hath omnis argumentatio est à notoribus and the first is better known then the second and the second may not be the first and there when the devise gave him the first it is idle to say that he shall have the second for that departs from the meaning of the words and in every grant the law implies quantum in se est and no man may say that the devisor did intend to warrant that from antient Titles and so the Lord Hobert concluded his argument and said his opinion was that the Plantiff shall be barred and judgement was commanded to be entred accordingly Mich. 22. Jac. C.P. Michaelmas Term in the two and twentieth year of King James in the Common Pleas. DAvenport moved for the amendment of a Record where a recovery was suffered of lands in Sutton in the Countie of York and the indenture of bargain and sale was by the right name and the indenture of uses by the right name but the writ of entrie was of the Mannor of Sulton and upon the examination of the parties to be recovery that the recovery was to no other uses then is expressed and mentioned in the said indenture this was to be amended Sheis against Sir Francis Glover SHeis brought an action upon the case against Sir Francis Glover and shewed for the ground of his action that where one Harcourt was bound to the Plantiff in a Recognizance c. upon which the Plantiff took forth an elegit and the Defendant being the Sheriff of the Countie took an inquisition upon that upon which it was extended but he refused to deliver this to the Plantiff but yet he returned that he had delivered that and upon that he brought his Action and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Serjeant Hendon and the reason he shewed was because he laid his action in an improper Countie for though the return was in Middlesex where the Action was brought yet because the land lies in Oxfordshire where the seisin ought to be delivered the place is Local and for that the Action ought to be brought there and now Serjeant Breamston argued that the Action was well brought in Middlesex for this being but a personal thing he may bring that in either of the Counties as 14. Ed. 4. 13. Ed. 4. 19. expresly in the point and to the second objection that had been made that an Averment may not be against the return of the Sheriff to that Breamston answered that in an other Action an Averment may be against the return of the Sheriff though not in the same Action as 5. Ed. 4. but it was agreed to have a new trial by the preservation of the Iustices for otherwise it seemed the opinion of the Court was that the Plantiff shall have judgement upon the reasons urged by Serjeant Breamston Mary Baker against Robert Baker an Infant in Dower MAry Baker brought a writ of Dower against Robert Baker an Infant who did appear by his Gardian and he pleaded that his father who was husband of the demandant was seised of a Messuage and of land in Socage and devised that to the demandant for her joynture in full satisfaction of all Dower and he shewed that after the death of his father the demandant did enter into the said Messuage and land and was seised of that by vertue of the devise and to that the demandant did replie by protestation that he did not devise and for plea confessed the seisin of the husband and her own entrie but she further shewed that the Infant who was then Tenant was but of the age of 14. years and that she entred as Gardian in Socage to the Infant and disagreed to accept of that by vertue of the devise and traversed the entire and the agreement and it was said by the Court that his bar is good though it had been more pregnant to have alledged that she entred virtute legationis praedictae and so was seised and after it was said that the Replication was very good without the traverse for this was not expresly set down but that was but meerly the consequence of the plea which in veritie was not traversable Hickman against Sir William Fish HIckman had judgement for 600. l. and 10. l. damages against Sir William Fish and he acknowledged satisfaction for 410. l. of the said debt and damages and after there was an agreement between them that if Sir William did not pay the residue by such a day that then it should be lawful for Hickman to take out execution against the said Fish without suing of any scire facias though it was after
when the law had adjudged by inspection him to be at full age when he levies a fine he shall never come after the fine is levied and said that he was within age at the time of the limitation of the uses nay I will cite one case to shew how cautelous and warie the law is in adjudging by inspection Poynts case where an infant brought a writ of error to reverse a fine and day was given till Octabis Mich. to be adjudged by inspection and before the day the Term was adjourned till Mense Michael but between Octabis Mich. and Mense Mich. he came of full age and yet upon Octabis Mich. upon the Essoyne day Justice Crook took his inspection de bene esse and it was ruled that now he may not avoid the fine but he was forced to compound for the Land and so the 6. Iac. was one Randals case who reversed a Statute by reason of his minoritie by audita querela and the last judgement for some error in that was reversed and then he brought a new audita querela when he was of full age and he cited all the proceedings upon the first and adjudged that the audita querela doth lie and so here when the law inables him to levie a fine the same inables him to declare the uses and now for the first point whether this be a precedent or a subsequent condition for that is the fair Helena for which we fight and yet I agree with my Brother Crawley that in some Cases there shall be a transposition of Terms and the parts in the proposition in some cases if is a note of a subsequent condition and for this the judgement of the case in Colthirsts case where a remainder was limited si ipse inhabitare vellet and to be a subsequent condition and so I will not denie but that if a man make a feofment in fee upon condition that if the feoffee pay 20. s. then he shall hold to him and his heirs it is no question but the fee simple passeth and it is a subsequent condition to reduce that but secondly this doth better agree with the intents of the parties and for the first the fine is levied to the use of the Conusee and the Conusee is now in by the Common Law but defeasable upon condition afterwards Secondly the intents of the parties plainly do appear that he shall have the land to the use of her and her heirs if Robert do not pay 10. l. and if he doth then to other uses now if no former use had been expressed by which this will result those last words will and I say no mean use will result but it shall be to the use of the Conusee and those words for ever though they adde nothing to the estate of Anne yet they serve to shew the intentions of the parties that if he do not pay then it shall be to the use of Anne and her heirs and if he paid then that she should have that for life but it is absolutely against the intents of the parties that she shall have neither and for that of necessitie to supplie the intents of the parties this shall be a subsequent condition like to the case where a man levies a fine to the intent that the Conusee suffer a recovery against him now of necessitie to have the intents of the parties fulfilled the fine shall be to the use of the Conusee for this time though none is expressed for otherwise it would result and so in this case that the intentions of the parties may be performed this shall be a subsequent condition The residue of the argument of Serjeant Finch NOw for the second point admit that this is a precedent condition whether by the death of Robert before the first of September the condition is become impossible to be performed because that the letter of the condition is that if Robert Foyn pay to the said Anne c. and I hold others are inabled in Law to perform that and that Robert his heirs or Executors may pay that and a thing which is implied or supplied by the Law is aswell as if it had been expressed as between Corbet and Cottow 39. Eliz. a bond to appear such a return of the Term at Westminster and the Term is adjourned before the day to Hartford and ruled that he ought to appear where the Term is and so in many cases where the words are short and curtailed the law will supplie that 41. Ed. 3. 17. a feofment to two to infeof another if one die the survivor may make that and yet it was not said that the Survivor may and so is Brook joyntenants 62. and conditions 290. words in the Copulative may be taken in the disjunctive and there cannot be a more apt case then Littleton fo 76. where though there are the words of the feoffor and the feoffee only yet the heirs of the feoffor or the feoffee of the feofee may perform that for the words being so the Law supplies them and if there is any difference between our case and Littletons then our case is the strongest for Littletons case are to defeat an estate which shall be taken strictly and if his case be taken so favourably then much more in our case and we see the words taken strictly when they are to defeat an estate as that 3. of Eliz. a lease was made for years upon condition that if lessee do not pay then that the lessor or his Assignes may enter and afterwards the lessor granted the Reversion and now adjudged that the grantee may not enter because it failes of the word heirs in the reservation of the condition and for that reason the lessor had but an estate for life in the condition which he may not transfer to another because he had not fee in the condition and there was a case adjudged Pasch 41. Eliz. where a man was bound to infeof the obligee and his heirs and in this case the obligee died and the Executors sued the obligation and adjudged that they shall be barred because he made an estate to the heirs of the obligee and so is the principal case of the 10. H. 7. and Dyer 14. where a man covenanted that he will build a house his Executors may make that and so here it may be performed by his heirs and therefore it is not discharged and now for the third point admit that it is become impossible whether the use will arise and I hold that it will arise and in that I take this difference between a fine or feofment and an obligation upon condition to make such Acts for the condition of the obligation is taken onely for the benefit of the obligors and therefore if that do become impossible by the Act of the law the obligation is saved but here the limitation of the uses are the words of the Conusor and therefore shall be taken more strongly against him in which I put this case if a man
this rent for this is forced in by the name of land which is absurd and contrary and here is not any fine levied directly of the rent nor any Silver of the King paid for that but only by the judgement of consequence and now for the Statutes of fines whether it is a fine within these Statutes and I hold that it is not and I am of opinion that if the rent had been behinde before all the dayes of proclamation pass and the issue had accepted that he is remitted and the same law is if Tenant in taile of such a rent and he acknowledge such a fine with proclamations and the proclamations pass now if his issue had accepted the rent before the proclamations passed he is remitted and now for the Statute of 32. H. 8. that is not taken by equitie because it is a Statute of explanation which regularly may not be inlarged and so appears in Butler and Bakers case and now for the agreement it self that is not any thing for this is by a contrary name which may not be good like to the case of the Lord Cromwel for there was an agreement to raise a rent by fine but here is an agreement to pass a rent by another name and will any man say that if a man agree to levie a fine of rent by the name of an advowson that this will pass the rent and I think that the case of Thornton is good law and so is also the case which is put after that of the advowson and yet I agree if Tenant in tail do accept a fine with render to another for years that shall bar him because that doth not work a discontinuance but otherwise where it is for life and so in my opinion the rent remains and the avowant shall have judgement The argument of the Lord chief Justice Hobert HObert to the contrary the short question is whether the rent is extinct by the fine of the land and I hold that it is and it is agreed it is a bar against the parties themselves though not against the issue and that being granted I see no second reason wherefore the issue shall not be barred and first I am of opinion that this plea of not comprised it is not good because this fine doth work by way of release but it was said at the bar that things ought to pass litterally in a fine which I denie and also every informalitie of a fine which is cause to reject that is not a cause to frustrate that when that is levied and the words of the Statute are of any lands Tenements or hereditaments any wise intailed and if there be any word in the conveyance which will carry that it is sufficient and it shall be put upon the construction of the law and as to that that the fine shall be according to the writ of covenant but I say if there be no writ of covenant then there is no departure but it was said that the Silver of the King was not paid which I also denie for it was paid inclusively and the words of the Statute are of any thing any wise intailed and Tenant in taile had as great power to pass that by fine as Tenant in fee simple and for the case of Thornton I know he was a learned man but let it suffice that he was so esteemed but for his opinion I do utterly denie that and I do denie the case put by my brother Hutton of the Piscary for I hold if a man had a Piscary in another mans land and levies a fine of that by the name of land this will pass the Piscary clearly and so the same if a man have an office appertaining to land intailed and a fine is levied of that by the name of the land this shall bar the issue and I denie that Statutes of explanation shall alwayes be taken litterally for it is impossible that an Act of Parlâ—ament should provide for every inconvenience which happens and so the case of Godfrey and Wade adjudged that the fine of the youngest son may not bar the eldest and yet within the words the eldest was heir to him but this word heir shall be expounded as his heir and so we use to expound the Statute of 4. H. 7. which is an original Statute and bindes parties and privies and here the eldest brother is not privie for he claimes before him and so I conclude that the rent is gone and judgement was given accordingly Sir Robert Hitcham against Brooks SIr Robert Hitcham Serjeant of the King brought an action upon the case against Brooks and set forth in his declaration that he was one of his Majesties Serjeants at law and that the Defendant spoke these words of him I doubt not but to prove he innuendo Sir Robert Hitcham hath spoken treason and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Hendon first because it is not a direct affirmation that he spake treason but he doubts not but to prove that like to Penticosts case which was adjudged here where one Baker said of him I will prove that Penticost was perjured and no action will lie because he did not directly affirm that he was perjured Secondly because he had not shewed when he spoke those words and perchance it was in his infancie or lunacie or before the general pardons Thirdly here is not any allegation of any conference had of the King before and the speach of Treason is not Treason but when there is an intent to commit that and words shall be taken in the best sence as the case of Stanhop Cook 4. and so in the case between the Earl of Shrewsbury and Sir Thomas Stanhop one laid to Sir Thomas Stanhop that the Earl is a subject nay said Sir Thomas that is his grief and adjudged those words are not actionable and yet the words might be taken as if he had repined to have a Soveraign but the words were taken in the best sence Finch to the contrary this is more then a bare affirmation for he said he doubted not but to prove that asmuch as if he had said I am sure of that and Mich. 16. Iac. Sidnams case where one said I think in my conscience that if Sir Iohn Sidnam might have his will he would kill the King and all his good subjects and adjudged upon a writ of error brought of that the words are actionable and so in Whorewoods case so sure as you beleeve that God rules the world and that the King rules the Kingdome so sure did Whoorwood steal such goods and adjudged to be actionable and yet perchance the partie to whom he spake did not beleeve either of them and so Woods case 18. Iac. I will call him in question for killing of a man I will pawn my shirt but I will hang him and so here and prayed judgement for the Plantiff Ashley Serjeant contray words which may be taken
if one be named in the venire facias Gregory is returned George there needs not amendment if it be in a Tales otherwise in a principal pannel 66 Action for words he is as arrant a Thief as any is in England the Plantiff needs not aver that there are Thieves in England for the difference is when the words relate to a particular place and when to an intire Realm and so when it is tied to one kinde of fellonie 70 89 Action upon the case where it lieth for a malitious prosecution at the Sessions 73 An action by the Obligee for the Obligor saying he had forged the bond but if he had said to another that he was a forger and had forged false writings no action lies 76 Action upon the case upon a contract in London to Table with the Plantiff at A. in N. and he then and there assumed to pay 4. s. by the week where the action must be brought 78 An action upon a promise against a Parson in consideration that the Plantiff would better his Tithes by Planting hops that he would allow him 40. s. an acre for his charge if that be a good consideration 80 Action upon the case where it lieth against an Attorney for convinous pleading 90 Action by an Attorney for saying he had forged writings and deserved to lose his ears lieth not 90 91 An action against a Sheriff whethâ—r it lies in the Countie where the return of the extent was made or where the land lies 100 Averment against the Sheriffs return where good and where not 100 Amendment where the venire facias habeas Corpus and the pannel agree but the Jury Rolâ— differs 101 Action of the case upon a promise 101 Action for saying the Plantiff stole a ring and had been hanged but for me lieth 102 Action upon a promise where the time and place of the request ought to be expressed 102 103 112 113 Aâ—bitrators amongst other things award interest mony whether good for all or part 114 120 Action by Serjeant Hitcham for saying I doubt not but to prove Sir Robert Hitcham hath spoken Treason 123 124 B A Bail where he is not liable to the judgement until default be in the principal or if the principal die 61 62 C A Commission to 4. or 2. of them and one refuseth the other sit the 4th may be a witness 45 Condition to save harmless he plead in the affirmative he must show how 9 A Coppiholder releaseth to his Companion it is good without admittance 3 A Coppiholder where he may inclose or dig for Marle and where not 8 A Covenant to injoy without the let of the Grantors c. or by their procurement 4 A Custome for a Coppiholder to cut trees at his pleasure is void 1 If Tenant in antient Demesne devise his lands the Devisee shall have fee 1 Covenant See fine Costs where they shall be given against an Administrator 11 A Condition to surrender coppihold he pleads he did it not good because he shewed not when the Court was holden 11 A Commission to seise for recusancie they seise an advowson the Kâ—ng grants to I. S. who presents and is disturbed by the Universitie of Oxford to whom the presentation belongs 11 12 13 Costs upon a Nonsuit at a nisi prius whether assessible by the Court or by the Judge of Assize 16 Common claimed to 600 acres and certain Messuages and lands and that he was disturbed by digging common Borrowes and doth not say he was seised at the timâ— much good matter 16 17 Custome of Merchants in Bills of Exchange varietie of good matter 24 Condition to free the nâ—xt avoidance from incumbrance the Grantors heir presents if that be a breach 25 Custome to have a widdowes estate and the husband is attainted if it holds 27 Condition that I. S. shall levie a fine to the Obligee who sued not a writ of Covenant the Plantiff replies that before c. I. S. had made a feofment of c. whether the Obligee must sue a writ of Covenant 29 30 A Condition contingent where extract by release 30 31 54 55 56 Covenant to make assurance by advice so that it be within Norfolk or Citie of N. a fine is advised not good because not shewed where it should be levied 32 33 Covenant not to alien an advowson without assent the Plantiff saith he had aliened c. good although he had not said by deed 34 Covenant where it raiseth a present use and where not 35 36 37 59 60 Custome touching Marchants and nationall lawes 52 Church shall be repaired by him who hath land there though he be no inhabitant but not lyable for the ornaments thereof 53 Coppiholder what act by him will make forfeiture 62 Covenant by a draper against his apprentice for defrauding him the Defendant pleads the Statute 5. Eliz. and that thereby there ought to be a certificate that his father had 40 s. per annum freehold which was not done here 63 64 If a Coppiholder sels his land to a Lessee of the Mannor it is good 67 Condition in a Will where nothing vesteth till it be performed 69 Costs not to be paid where the Plantiff mistakes his action 69 Covenant brought by an Executor the Defendant pleads giving of an horse in full satisfaction which the Testator accepted 76 A Court of equitie if it doth decree against a maxime in law as benefit of Survivorship a prohibition lieth 79 Covenant that he was seized of a good estate in fee and had good authoritie to sell and that no reversion was in the King c. 91 92 93 Condition where it shall be precedent and where subsequent 105 106 107 108 c. 115 116 c Costs not discharged although the offence be pardoned 125 Commendam See King D IN dept after imparlance alwayes ready is a good Plea 4 Distress gone as to the nomine Paenae if the rent be expired 7 A Declaration where it shall be mended in matter of substance 20 Damages where good in part especially after verdict 27 28 Debt against an Administrator who pleads outlawrie in the intestate no good Plea 33 58 A man soweth land and deviseth to I. S and dies before severance whether the devisee or Executor shall have the Corn 51 A Devise for years if an entrie by him must be pleaded 53 Declaration see new assignment Dower a Tenant pleads a fine levied by her husband and that the wife had not claimed within the Statute 4. H. 7. she replied she brought a writ which abated and this writ now brought was by Journeys accompts 66 Debt for rent must be brought by a privie in estate only where the land lies otherwise of a Privie in estate and contract 69 Debt upon a bond the Plantiff saith he had not paid the money and did not say nor any part thereof good for that must come of the other part to shew 72 Debt upon a bond to perform an award the Defendant