Common Law there notwithstanding he shall recover costs also So in our Case these being Acts of Creation which give remedy where there was no remedy before shall be taken strictly according to the Letter and shall not extend to such penalties as in our case And upon this difference he cited the Cases in Pilfords case and especially the Case upon the Statute of 5 E. 6. of Ingrossers the Plaintiff shall not recover costs but only the penalty given by the Statute grounded upon 37 H. 6. 10. I agree That there be many Presidents in the Common 〈◊〉 That damages have been allowed in our very Case but that is the use of the Clerks and passed sub silentio without any solemn debate or controversie Vide Greislies case and the first Case of the Book of Entries Presidents and Judgments in this Court Pasch. 33 Eliz. Rot. 292. Halesworth against Chaffely A Judgment of the Common Pleas was reversed for this very point M. 36 Eliz. Ruddal and Wilds Case M. 44 45 Eliz. Rot. 22. Shepwiths Case Avowry for relief a stronger case Judgment was reversed because damages was assessed Hill 14 Iac. Rot. 471. Leader against Standwell in a Replevin Avowry was made for an Amercement in a Leet and found â—or the Dâ—fendant and damages assessed But the Entry upon the Record was thus Super quo nullo habito respectu c. The Plaintiff was discharged of the damages because nulla damna debent esse adjudicanda per Legem terrae but he shall have his costs But it was objected by Justice Crook That by the Statute of 4 Iac. c. 3. which giveth costs and damages to the Defendant in certain Actions there specified where the Plaintiff shall recover damages and that where the Plaintiff is Non-suit or verdict pass against him That Demurrer hath been construed to be within that Statute Notwithstanding that it is an Act of Creation I agree that and answer that Demurrer is within that Statute and the mischief of it but it is not so in our Case for in our Case there is no such mischief For there is no colour to extend it beyond the words of the Statute For which cause I conclude that the Judgment in this case ought to be reversed 65. A Clerk of the Court dwelling in London was chosen Churchwarden and prayed a Writ of Priviledge which was granted And it was agreed by the whole Court That for all Offices which require his personal and continual attendance as Churchwarden Constable and the like he may have his Priviledge but for Offices which may be executed by Deputy and do not require attendance as Recorder and the like from which the Justices themselves shall not be exempt for them he shall not have his Priviledge And where he hath his Priviledge for the not obeying thereof an Attachment lieth Swift against Heirs in Debt upon the Statute of 2 E. 6. for setting out of Tythes 66. THe doubt in this Case did arise upon two several Indentures found by special verdict which were made by the Vicar and Subchauntors Corrols of Lichfield one 2 E. 6. the other 2 3 Phil. Mar. The Question upon the Indenture of 2 E. 6. was Whether the Grant upon the Habendum be a grant of a Freehold to begin at a day to come or not The chief Justice Justice Crooke and Justice Barckley were clear of Opinion That it was a grant of a Freehold to begin at a day to come And for that the Case is thus In the Indenture of 2 E. 6. there is a recital of a former Lease for years And by this Indenture in 2 E. 6. another Lease was to begin after the first Lease determined the remainder in Fee to another And upon that the three Justices before were clear in their Judgments That it was a Grant of Freehold to begin at a day to come which without doubt is void 8 H. 7. 39 H. 6. and Bucklers case 3 Rep. And in 8 H. 7. the difference is taken betwixt the grant of a Rent in esse and Rent de novo A Rent de novo may be granted in futuro but not a Rent which is in being But Justice Iones in this Case was of Opinion That here is not any grant of a Freehold to begin at a day to come because in this case the Lease doth begin presently because the Lease recited is not found by the Jury and therefore now it is all one as if there had been no Lease at all contrary in the case of the King because it passeth a good estate of Inheritance to the Grantee And therefore if I make a Lease for years unto a man after the expiration of such a Lease where in truth there is no such Lease in being the Lease shall begin presently The Question upon the Indenture of 2 3 P. Mar. was no more but this The Vicar and Subchauntors of Lichfield made a Grant of all their Tithes in Chesterton and name them in certain and in specie as Tithe-wool Tithe Geese Pigs Swans and the like and that in a distinct clause with especial Exception of four certain things After which came this clause All which were in the Tenure of Margaret Pâ—toe And the Jury sound that none of these Tithes were in hâ—r Tenure And whether that Grant were void or not was the Question And resolved by the whole Court nullo contradicente That the Grant notwithstanding this fallâ— reciâ—al was good For these reasons But first it was resolved That where they grant all their Tithes in Chesterton that it is a good grant and hath sufficient and convenient certainty 13 E. 4. and â—â—â—lands Case There are two Generalities 1. Absolute 2. Genâ—â—al in particular â—o here And in our Case it is as câ—râ—ain that demand in an Action may be for them by the name of all their Tithes in Chesterton So in the like manner an Action of Ejectione firme will lie For an Ejectione firme will 〈◊〉 for Tithes as it hath been adjudged here If the King grant all his Lands it is altogether incertain and void but if the King grant all his Lands in Dale or which came to him by the dissolution of such an Abby it is good because it is a generalâ—y in particular And it was agreed that convenient certainty is sufficient And therefore it was said by Justice Iones That if I grant all my Rents in Dale which I have of the part of my Mother that he conceives the same to be good The first reason wherefore this grant shall be good notwithstanding the false recital was this because the words here All which c. are not words of denotation or restriction but of suggestion or affirmation and therefore shall not make void the Grant And here the difference was taken between the Case of a common person and of the King Suggestion which is false in the Case of the King makes the Patent void but contrary in the case of a common person And
therefore iâ— the King be deceived either in point of profit or in point of Title his Grant is void 9 H. 6. Where he is not deceived in point of profit he shall not avoid the Grant 26 H. 8. The second reason That a Deed ought to be construed Vt res magis valeat quam pereat 34 H. 6. A man having a Reversion deviseth his land in Manibus thereby the Reversion passeth 9 E 4. 42. Release of all Actions against Prior and Covent shall be construed and intended all Actions against the Prior only for an Action cannot be brought against the Covent Farther by this construction you would avoid this deed and by the Rule of Law the deed and words of every man shall be taken very strong against himself ut res magis valeat as is said before And it is against reason to conceive that it was the meaning of the parties that nothing should pass A third reason was because the grant was a distinct clause of it self And the words which were objected at the Bar to be restrictive were in another distinct clause and therefore shall not restrain that which was before for words restrictive ought to be continued in one and the same sentence Wherefore they having granted all their Tithes in Chesterton by one clause the false recital afterwards in another clause shall not make the grant void See 3 4 Eliz. Dyer in Wast 31 Eliz. the Lord Wenworths Case in the Exchequer upon this Rule of distinct clauses And Atkins and Longs case in the Common Pleas upon which cases Justice Iones did rely The fourth reason was That construction ought to be made upon the whole Deed And it appeareth by the context of the Deed That it was the meaning of the parties to grant the Tithes by the Deed. Further the Exception of the four things sheweth That it was the meaning of the parties to grant all things not excepted as the Tithes in this Case For exceptio firmat Regulam And to what purpose should the Exception be if they did not intend to pass all other things not excepted See 4 Car. Hâ—skins and Trâ—ncars Case Sir Robert Napwiths Case 21 Iac. cited by the chief Jâ—â—tice to that purpose Wherefore it was agreed by the whole Court that Judgment should be given for the Defendant And the Opinion of the Court was clear also That although some of the Tithes had been in the Tenure of Margaret Petâ—e that yet the grant was good And that was after Argument upon the Demurrer to avoid all scruples to be after made by Counsel because it was conceived That some of the Tithes were in her Tenure Crisp against Prat in Ejectione firme 67. THe Case upon the four Statutes of Bankrupts viz. 34 H. 8. 13 Eliz. 1 Iac. and 21 Iac. was thus Ralph Brisco 9 Iac. purchased Copyhold to him and his Son for their lives the Remainder to the Wife in Fee 11 Iac. he became an Inholder and about twelve years after a Commission of Bankrupt is obtained against him And thereupon the Copyhold-land is sold by the Commissioners to the Defendant Ralph Brisco dieth and his Son Iohn Brisco entred and made the Lease to the Plaintiff The Defendant entred upon him and he brought an Ejectione firme And Judgment was given upon solemn argument by the Justices for the Plaintiff The first point was Whether an Inholder be a Bankrupt within these Statutes And it was resolved by all the Justices viz. Iones Crook Barckley and Bramstone chief Justice that an Inholder quatenus an Inholder is not within these Statutes Justice Barckley and Justice Iones one grounded upon the special Verdict the other upon the Statutes did conceive That an Inholder in some cases might be within these Statutes Justice Barckley did conceive upon this special Verdict that this Inholder was within them because it is â—ound That he got his living by buying and selling and using the Trade of an Inholder And he conceived upon these words Buying and selling in the verdict and getting his living thereby although that the Jury have also found him an Inholder that the same is within the Law And he agreed That he who liveth by buying or selling and not by both is not within the Law but in our case the Jury have found both And it hath been adjudged That he who buys and sells cattle and stocks his ground with them that he may be a Bankrupt within those Statutes I agree that a Scrivener was not within 13 Eliz. for he doth not live by buying and selling but by making use of the monies of other men but now he is within 21 Iac. But in our case the Inholder buys his grass hay and grains and provision also for his Guests and by selling of them he lives But he agreed That if the Jury had found that he was an Inholder only and not that he did get his living by buying and selling that in that case he was out of the Law And for these reasons he did conceive That this Inholder as by the special Verdict is found was within the Statutes of 13 Eliz. and 21 Iacobi Justice Iones An Inholder may be or not be within these Laws upon this difference That Inholder who gets his living meerly by buying and selling as many of the Inholders here in London do they are within these Statutes But those who have Lands of their own and have hay and grain and all their provisions of their own as many have in the Country those are not within the Statutes Farther he said That buying and selling doth not make men within these Statutes for then all men should be within the Statutes but they ought to be meant of them who gain the greatest part of their living thereby and live chiefly or absolutely thereby But Bramston chief Justice and Justice Crook were clear of Opinion that an Inholder could not be a Bankrupt neither by the Statutes nor according as it is found by the special Verdict And their reason was because that an Inholder doth not live by buying and selling for he doth not sell any thing but utter it He which sells any thing doth it by way of contract but an Inholder doth not contract with his Guests but provides for them and cannot take unreasonable rates as he who sells may and if he doth he may be Indicted of Extortion which the seller cannot Wherefore they concluded that an Inholder is not within the Statute of 13 Eliz. 1 Iac. Justice Crook remembred these Cases Webb an Inholder of Vxbridge brewed in his house and sold his Beer to his Guests And it was adjudged in the Exchequer that it was not within the Statute of Brewers And Bedells Case who being a Farmer bought and sold cattle and adjudged that he was not a Bankrupt within these Statutes And he put thâ—se cases upon this reason That where the Statutes said Get their living by buying and selling that it ought to bâ—â—or the greater part that they gain
killed B. inter horam decimam undecimam was adjudged to be naught And he took many exceptions all which were disallowed by the Court. For which cause Sir Matthew prayed his Clergy and had it Pasch. 17º Car. in the Common Pleas. Weeden against Harden 128. CUstome to pay Tithes in kinde for Sheep if they continue in the Parish all the year but if they be sold before shearing-time but an half-penny for every one so sold. And custome in the same Parish also to pay no Tithes of Loppings or Wood for fire or Hedges c. The first is an unreasonable custom for by such means the Parson shall be defeated of his Tithes But the last custom is good by the whole Court Sir Edward Powells Case 119. THe Lady Powell sued Sir Edward Powell her husband in the High Commission Court for Alimony Whereupon a Prohibition was prayed in this Court and granted Serjeant Clark who argued for the Prohibition The Spiritual Court cannot meddle with any thing which is not redressable by them they may compel a man tractare uxoreâ— or Divorce them but not grant Alimony which doth appertain to the Judges of the Common Law 7 8 H. 3. there is a Writ directed to the Sheriff to set out reasonable Estoverâ— for the Alimony of the wife President since the Statute of 1 Eliz. where Prohibitions have been granted in this Case viz. Sir William Chenyes Case Mich ' 8 Iac. in Comm ' Banâ—â— who committed Adultery and was separated and the wiâ—e sued for Alimony and a Prohibition granted P. 8 Iac. A Prohibition granted And by the Statute of 1 Eliz. they have not power to hold Plea of Alimony The words of the Statute are Reform Redress c. And it is not apt to say that Alimony shall be Reformed or Redressed And besides Alimony is a Temporal thing and chargeth a mans Inheritance and therefore they shall not intermeddle with it Serjeant Rolls contrary She may sue for Alimony in the Ecclesiastical Court but if they proceed to Fine or Imprisonment then a Prohibition lieth They have power of Separation which is the principal and therefore of Alimony which is Incident And the High Commission have the same power given to them by the Statute of 1 Eliz. as the Spiritual Court hath and therefore they may meddle with Alimony And where it was before objected The great inconvenience to the party by the citing him out of his Diocess for by that he should lose the advantage of his Appeal Rolls said It was good for any within the Province and that is the Court of the Province Banks Chief Justice Although that there be Presidents that the High Commission have hoâ—den Plea of Alimony and granted the same yet it was not Law And although though that Alimony be expressed in their Commission that doth not make it Law if it be not within the Statute As to the citing out of the Diocess he conceived the Commission should be useless if they might not do it and therefore he granted a Prohibition Crawly Reeve and Foster Justices agreed But they doubted whether the citing out of the Diocess were good or not for the great prejudice which might ensue to the party in losing his Appeal And in answer to the Objection of Rolls the Chief Justice said That the Ecclesiastical Court had not Jurisdiction of Alimony but if they had yet all the Jurisdiction of the Spiritual Court is not given to the High Commission by the Statute of 1 Eliz. And they all agreed That they might as well charge my Land with a Rent-charge as grant Alimony out of it and a Prohibition was granted 130. No Sequestration can be granted by a Court of Equity until the Proces of contempt are run out And by Reeve and Foster Justices The granting of Sequestration of things â—â—llateral as of other Lands or Goods is utterly illegal 131. Whereas upon Suggestion of a Modus decimandi a Prohibition was granted now a Consultation was prayed as to Offerings and granted because the Modus c. doth not go to the personalty 132. Upon a Jury retorned a stranger who was not one of the Jury caused himself to be sworn in the name of one who was of the Jury And he against whom the Verdict passed moved the Court for a new Trial upon that matter But the Court would not give way to it because it appeareth to them that he is sworn upon Record But all the Court agreed that he might be Indicted for that Misdemeanour and by Reeve and Foster Justices the parties may have an Action upon the Case against him 133. It was taken for a Rule by the Court That no Amendment should be after a Verdict without a consent 134. Trover and Conversion against husband and wife and declared that they did convert ad usum corum The Jury found the wise not guilty And by the Court this naughty Plea is made good by the Verdict Sir Richard Greenfields Case in the Kings Bench. 135. THou innuendo Captain Greenfield hast received mony of the King to buy new Saddles and hast coâ—sened the King and bought old Saddles for the Troopers Tâ—ver It is not actionable 8 Car. The Mayor of Tivertoâ— case One said of him That the Mayer had cousened all hâ—â— Brethren c. not actionable 9 Iac. in the Kings Bench Thaâ— the Overseers of the Poor had cousened the poor of their Bread not actionable 26 Eliz. in the Kings Bench Kerby and Wallers case Thou art a false Knave and hast cousened my twâ— Kinsmen not actionable K. is a cousening Knave not actionable 18 Eliz. in the Kings Bench. Serjeant Fenner hath cousened me and all my Kindred is not actionable Words are actionable either in respect of themselves or in relation to the person of whom they are spoken where Liberty is infringed the Estate impaired or Credit defamed there they aâ— actionable Mich. 29 H. 8. Rot. 11. Villain is not actionable Morgan and Philips case That he is a Scot actionable because he is an Alien born Hill 1. Car. in Com. Ban. Siâ— Miles Fleetwoods case Mr. Receiver hath cousened the King actionable in respect of his Office of Receivership And seâ— it was afterwards adjudged upon Error brought in the Kings Bench. If these words had been spoken of the Kings Saddler they had been actionable for thereby he might lose his Office but there is no such prejudice in our case and he is of another Imployment and is but for a time only But by Heath Justice and Bramston Chief Justice the words are actionable for it is not material what imployment he hath under the King if he may lose his imployment or trust thereby And it is not material whether the imployment be for life or years c. 136. A Lawyer who was of Counsel may be examined upon Oath as a Witness to the matter of Agreement not to the validity of an assurance or to matter of Counsel And in examining of a Witness Counsel
same after by Copy that they agreed might be a Question Serjeant Rolls at another day argued that the Copyhold was destroyed by the Kings grant but he agreed that it is not reason that the Patent should be utterly void for that he said would overturn all the Kings grants for there is not any Patent that ever recited Copyhold and therefore the Question is whether the Copyhold be destroyed or not and he argued that it is because there needeth not auy recital of Copy-hold Br. Pat. 93. It is agreed that where the King grants Land which is in lease for term of years of one who was attainted or of an Abby or the like that the grant is good without recital of the lease of him who was attainted c. For he shall not recite any lease but leases of Record and therewith agreeth 1 Rep. 45. a. and Dyer fol. 233. pl. 10 11. Now he said there is no Record of these Copyholds and therefore there needs not any recital of them and therefore the King is not deceived Further he said that no man is bounden to inform the King in this Case and therefore the King ought to take notice and then the reason of the Case of a common person comes to the Kings Case because the Copyhold was not demiseable for time as before according to the nature of a Copyhold and therefore of necessity is destroyed and the Court as I said before did conceive the Case questionable Burwell against Harwell in a Replevin 247. THe Case was shortly thus A man acknowledged a Statute and afterwards granted a Rent-charge the land is extended the Statute is afterwards satisfied by â—ffluxion of time and the grantee of the rent did distrain and whether he might without bringing a Scire facias was the Question And the Case was several times debated at the Bar and now upon solemn debate by the Judges at the Bench resolved But first there was an exception taken to the pleading which was that the avowant saith that the Plaintiff took the profits from such a time to such a time by which he was satisfied that was said to be a plea only by argument and not an express averment and therefore was no good matter of issue and of this opinion was Justice Heath in his argument but Bramston Chief Justice that it is a good positive plea and the Plaintiff might have â—raversâ—d without that that he was satisfied modo forma and in Plowd Comment in Buckley and Rice Thomas 〈…〉 ut cum tam quam are good issues Now for the point in Law Justice Mallet was for the Avowant that the distress was lawful the grantee of the Rent cannot have a Scire facias because he is a stranger and a stranger cannot have a Scire facias either to account or have the land back again The Cases which were objected by my Brother Rolls viz. 32 E. 3. tit Scire facias 101. Br. Scire facias 84. Fitz. Scire facias 134. That the feoffee shall have a Scire facias do not come to our Case for here the grantee of the Rent is a stranger not only to the Record but to the Land which the feoffee is not Further it was objected that the Grantee of the Rent claims under the conusor and therefore shall not be in a better condition than the Conusor there are divers Cases where grantee of a rent shall be in better condition than the Conusor the Lord Mountjoyes Case a man makes a lease for years rendring rent and afterwards acknowledgeth a Statute and afterwards grants over the rent now it is not extendable Besides it was objected that if this should be suffered it would weaken the assurance of the Statute and disturb it I agree that may be but if there be not any fraud nor collusion it is not material and then he being a stranger if he cannot have a Scire facias he may distrain it is a Rule in Law Quod remedio distituitur ipsa re valet si culpa absit 21 H. 7. 33. Where there is no Action to avoid a Record there it may be avoided by averment c. 18 E. 4. 9. 5 Rep. 110. 32 Eliz. Syers Case a man indicted of felony done the first day of May where it was not done that day he cannot have an averment against it but his feoffee may 12 H. 7. 18. The King grants my land unto another by Patent I have no remedy by Scire facias 19 E. 3. Br. Fauxifer of recovery 57. F. N. B. 211. 20 E. 3. 6. 9 E. 4. 38. a. A man grants a rent and afterwards suffers a recovery the grantee shall not falsifie the recovery because he is a stranger to the recovery but he may distrain which is the same Case in effect with our Case for which cause I conceive that the distress is good and that the Replevin doth not lie Justice Heath the distress is unlawful for he ought to have a Scire facias clearly the conusor ought to bring a Scire facias See the Statute of 13 E. 1. Fulwoods Case 4 Rep. 2 R. 3. 15 H. 7. and the reason why a Scire facias is granted is because that when a possession is setled it ought to be legally evicted Besides it doth not appear in this Case when the time expired besides costs are to be allowed in a Statute as Fulwoods Case is and â—he same ought to be judged by the Court and not by a Jury which is a reason which sticks with me see the Statute of 11 H. 6. it is objected that the Grantee of the rent cannot have a Scire facias it will be agreed that the conusor himself cannot enter without a Scire facias and I conceive à fortiori not the Grantee of the Rent I do not say here there is fraud but great inconvenience and mischief if arrerages incurred for a great time as in this Case it was shall be all levied upon the conusee for any small disagreement as for a shilling without any notice given to him by Scire facias and he should be so ousted and could not hold over I hold that of necessity there ought to be a Scire facias and he ought to provide with the Grantor to have a Scire facias in some fit time but I hold that the Grantee here may well have a Scire facias I agree the Cases where it is to avoid a Record there ought to be privity as the Books are but here hâ— doth not avoid the Record but allows it for the Scire facias ought to be only to account 38 E. 3. The second conusee of a Statute shall have a Scire facias against the first conusee and I conceive that by the same reason the Grantee of the rent here shall have it and in that Case there is no privity betwixt the first conusee and the second conusee for which cause he did conclude that the distress was unlawful and that the Repleâ—in would
REPORTS OR NEW CASES WITH Divers Resolutions and Judgements given upon solemn Arguments and with great deliberation AND The Reasons and Causes of the said Resolutions and Judgements COLLECTED By JOHN MARCH of Grayes Inne BARRESTER LONDON Printed by M. F. for W. Lee M. Walbanke D. Pakeman and G. Beadel M.DC.XLVIII REPORTS Easter-Term 15º CAROLI In the Kings Bench. IT was agreed by Justice Iones and Justice Barckley the Lord Chief Justice and Justice Crook being absent That if the Sheriff do arrest a man upon mesne processe and return a Cepi corpus and that the Defendant was rescued that no Action lieth against the Sheriff But if the party be taken upon an Execution an Action upon the Case lieth against him and so is the express Book of 16 E. 4. 2 3. Br. Escape 37. upon which Book Justice Iones said That it was adjudged in this Court as above is said 2. It was agreed by the Court That if a man in pleading derive an Estate from another man and doth not shew what Estate he had from whom he deriveth his Estate that is a good cause of Demurrer And Justice Iones said That if a man claim a Rent by Grant out of the Land of any other man it is not sufficient for him to say That such an one was seised and concessit but he ought to express of what Estate he was seised So is Dyer But in this Case it was agreed That the shewing of what Estate c. ought to be material to the maintenance and support of the Estate which he claimeth otherwise it is not necessary 3. An Action upon the Case for words was brought by one who was Journey-man and â—ore-man of a Shoomakers-shop which was his living and livelihood for these words viz. It is no matter who hath him for he will Cut him out of doors And farther the Plaintiff did aver that the common acceptance of these words amongst Shoomakers is That he will begger his Master and make him run away and shewed that he was particularly endamnified by speaking of those words And the Court was clear of Opinion that the Action would lie And these Rules were taken and agreed For some words an Action will lie without particular averment of any damage as to call a man Thief Traytor or the like these are malum in se And some words will not bear Action without particular averment of some damage as to say Such a one kept his wife basely and starved her these words of themselves will bear no Action but if the party of whom the words were spoken were in election to be married to any other and by speaking of these words is hindred there with such Averment they will bear an Action It was farther agreed That the words ought to be spoken to one that knows the meaning of them otherwise they are not actionable as in the principal Case they were spoken to a Shoomaker but if they had been spoken to any other who knew the meaning of them it had been all one And therefore scandalous words which are spoken to one in Welsh or any other Language which the party to whom they are spoken doth not understand are not actionable And it was agreed That some words which are spoken although of themselves they are not actionable yet being equivalent with words which are actionable they will bear an Action And therefore it was said by Justice Iones That in York-shire as I remember Straining of a Mare is as much as Buggering and because these do amount to as much with averment they will bear Action And all words which touch a man in his livelihood and profession will bear Action And the Opinion of the Court also was that the Averment ought to be That in this and shew it specially the Plaintiff was damnified and so it was agreed upon these Reasons that the Action did lie 4. The Opinion of the Court was upon a Judgment given there there ought to be two Scire facias one against the Principal the other against the Bail but one only is sufficient in the Common Pleas and that two Nichils returned do amount to Scire feci 5. There was a Contract made at Newcastle that a ship should sail from Yarmouth to Amsterdam and there was an Action of Debt brought upon the Contract at Newcastle and it was adjudged that the Action would not lie and the difference was taken betwixt a particular and limited Jurisdiction as in this case Newcastle is and a general Jurisdiction as one of the Courts at Westminster hath for in the first Case no particular Jurisdiction shall hold plea of a thing which is done in partibus transmarinis although the Original as the Contract in the principal Case be made in England but contrary in case of general Jurisdiction as any the Courts at Westminister have 6. The Custome of London is that any man in London may pass over or put over his Apprentices to any other man within the City King and Cokes Case 7. WIlliam Marshal and other Bailiffs had an Execution viz. a Capias ad satisfaciend ' against Coke and others which Bailiffs came to Coke's house and lay one night in his out-houses privily and the next morning they came to his dwelling-house and gave him notice of the Execution but Coke shut the doors of his house close so as the Bailiffs could not enter whereupon they brake the Glass-windows and the Hinge of the door endeavouring to enter whereupon Coke commanded them to be gone or he would shoot them notwithstanding which they did continue their ill-doing whereupon Coke shot Marshal one of the Bailiffs and whether this was Manslaughter or Murder was the Question And Rolls argued that it was not Murder for these causes 1. Because the act of the Bailiffs in breaking of the Glass and the Hinge of the door was an unlawful act and was at their pâ—ril Where the Kings Officer may break the house to serve any mean Process or Execution the differences are such as are in Semaynes Case C. 5. part 91 92. 1. betwixt Real and Personal Actions In Real Actions they may break the house to deliver seisin to him who recovereth contrary in Personal Actions 2. There is a difference in the case of the King and of a common person where the King is party in some cases his Officers may justifie the breaking of a house but not in the case of a common person 13 E. 4. 9. 18 E. 4. 4. 4 Rep. 4 9 Rep. 69. And therefore if they could not justifie the breaking of the house at the suit of a common person then in the principal Case they did a thing which was not warranted by Law and therefore the killing of one of them was not Murder But clearly if the Bailiffs had lawfully executed their Office then it had been Murder 2. It was not Murder because the person was in his House which is his Castle and defence which is a place priviledged by the Law 26. Ass.
time or not The first hath been granted that there ought to be assent for the great inconvenience which might happen to Executors if Legatees might be their own carvers and so are all our Books except 2 H. 6. 16. and 27 H. 6 7. which seem to take a difference where the Legacie is given in certain and in specie there it may be taken without assent but where it is not given in certain there it cannot but he held clearly the Law to be otherwise that although it be given in certain yet the Legatee cannot take it without assent of the Executor for so the Executor should be subject to a Devastavit without any fault in him or any means to help himself which should be very inconvenient Then the second thing here to be considered is Whether there be an assent or not It is clear that if an Executor enter generally he shall be in as Executor and not as Legatee for that is best for him to prevent a Devastaviâ— and it is as clear that if he declare his intention to be in as Legatee that then he shall be so then the Question here is Whether the words in our Case be a sufficient declaration of the mind of the Executor to take the same as Legatee in the right of his wife or not and I hold that it is He agrees that the second words are not so weighty as the first but he held the first words are sufficient of themselves to make an assent and when he saith that then it remains to the Holloways that proves that he took notice thereof as a Legacie and that he would have it in that right although in truth the devise by Iohn Holloway was void so as it could not remain to them For the third he held that the assent came in due time otherwise it might be very prejudicial to Legatees for else by that means they may be many times defeated of their Legacies for put Case that an Executor will not assent and the Legatee dieth before he can compel him to assent or that the Legatee dieth in an instant after the devisor in the 5 Rep. Princes Case it is resolved that an Infant under 17 may not assent to a Legacie nor the administrator Durante minori aetate then put case that the Legatees die during the administration durante minori aetate in whose time there cannot be an assent It would be a vâ—ry great mischief if that in any of these Cases the Legatees should be defeated of their Legacies when by possibility they could not use any means to get them wherefore he held clearly that the assent of the Executor after the death of the Legatee came in good time and therefore he concluded for the Plaintiff Bramston Chief Justice also for the Plaintiff For the first point he held that there is a good assent and he said that Mannings Case hath the very words which our Case hath but my Lord Cooke did not speak of these words in the Report of the Case because he conceived that the payment of the money was a sufficient assent to the Legacie but further I conceive that it differs fully from Mannings Case for there it is found expresly that the Executor had not Assets and therefore it should be hard to make him assent by implication thereby to subject himself to a Devastavit for as I conceive an Executor shall never be made to assent by implication where it is found that he hath not Assets but there ought to be an express assent by reason of the great prejudice which might come unto him but in our Case it is not found that Lowe had not Assets an Infant cannot assent without Assets but if there be then it shall bind him and perhaps that was the reason that my Lord Coke did not report any thing of these words whether they were an assent or not and his passing over them without saying any thing of them seems partly to grant and agree that they did not amount to an assent A man deviseth unto his Executor paying so much and he payeth it it is a good assent to the Legacie so is Matthew Mannings case 8 Rep. and Plowden Comment Welâ—den and Elkingtons case and he said that an assent is a perfecting act which the Law favours and therefore he said that it was adjudged that where an Executor did contract with the devisee for an assignment of the Term to him devised that it was a good assent to the Legacie For the second point also he held clearly that the assent came in due time for otherwise it should be a great inconvenience for by that means it should be destructive to all Legacies for of necessity there ought to be an assent of the Executor and if he will not assent and the Legatee dieth before he can compel him to assent or if the Legatee dieth immediately after the Devisor before any assent to the Legacie in the first Case it should be in the power of the Executor who is a stranger to prejudice me and in the latter Case the Act of God should prejudice me which is against two Rules of Law that the Act of a stranger or the act of God shall not prejudice me wherefore without question the assent comes in due time Besides If a Legatee dieth before assent to a Legacie the same shall be assets in the hands of his Executors and the Legatee before assent hath an interest demandable in the Spiritual Court An Executor before probate shall not have an Action but he may release an Action because that the right of the Action is in him so in this Case although that the Legatee before assent hath not an interest grantable yet he hath an Interest releasable A man surrenders copyhold-Copyhold-Land to the use of another and the surrenderee dieth before admittance yet his heir may be admitted and this Case is not like those Cases put at the Bar where there is but a meer possibility and not the least Interest as where the grantee of a reversion dieth before Attornment or the devisee before the devisor in those Cases the parties have but a meer possibility and therefore countermandable by death but it is otherwise in our Case as I have shewed before and therefore I conclude that here is a good assent and that in due time and therefore that the Ejectione firme brought by the Plaintiff well lieth Dale and Worthyes Case 212. DAle brought a Writ of Error against Worthy to reverse a Judgment given in the County-Palatine of Chester and the Writ of Error bore Teste before the Plaint there entred and whether the Record were removed by it or not was the Question and the Court viz. Mallet Heath and Bramston were clear of opinion without any solemn debate that the Record was not removed by that Writ of Error because that if there be not any plaint entred at the Teste of the Writ how can the Processus according to the Writ be removed
the Corporation spake these words of the Plaintiff to his Brethren of the Corporation He praedict the Plaintiff innuendo is an ignorant man and not fit for the place and he said that by reason of speaking of these words that they refused to elect him Steward and whether these words were actionable or no was the Question This case was argued twice in Trinity-Term by Callis and Gotbold Serjeants and the Judges seemed to incline to opinion That the words were Actionable but yet no judgment is given Selden against King in Common Pleas Trin. 17 Car. Regis 218. IN a Replevin the Case was thus A man granted a rent out of certain Lands and limited the same to be paid at a house which was another place off the Land and in the grant was this clause that if the rent were behind and lawfully demanded at the house that then it should be lawful for the grantee to distrein the Rent was afterward behind and the grantee distreined and upon traverse taken upon the demand whether this distress upon the Land which had been good in Law if there had not been a special limitation of demand at a place off the Land be a good demand as this Case is was the point Mallet Serjeant the distress is a demand in it self and there needs not any other demand although the rent be to be paid off the Land as here And it was adjudged in this Court about 3 years past that the distress was a sufficient demand but I confess that a Writ of Error is brought in the Kings Bench and they incline there to reverse it and there is no difference where the rent is payable upon the Land where not and so it was adjudged Trin. 3 Car. Rot. 1865 or 2865. betwixt Berriman and Bowden in this Court and he cited also Fox and Vaughans Case Pasch. 4 Car. in this Court and Sir Iohn Lambes case Trin. 18 Car. Rot. 333. in this Court both adjudged in the point and he cited many other Judgments Iermyn Serjeant contrary that the distress is no sufficient demand as this Case is he ought to demand it at the place appointed by the grant for it is part of the grant and the words of the grant ought to be observed 28 H. 8. Dyer 15. and in the Comment 25. a. it is said that Modus legem dat donationi and therefore by the same reason that the grantor may appoint the time and place of payment as here he hath done by the same reason he may appoint a place for the demand and that he shall make that demand before he distrein for the same is neither repugnant nor impossible nor against the Law and therefore good and by consequence ought to be observed and then he answered the Cases which were cited to be adjudged against him In Symmons Case in the Kings Bench there it was resolved that a distress was a demand in Law and a demand in Law is as strong as a demand in fact as it was said by Justice Barckley in debate of that Case But note that in that Case there was no time in certain limited and further in that Case the Rent was payable upon the land and therefore in that Case I agree that a distress will be a good demand because that the demand is to be made upon the land but it is not so in our Case In Sands and Lees case Trin. 20 Iac. in this Court there also the rent was payable upon the land Berriman and Bowdens Case Trin. 3 Car. cited before I agree was our very Case in point but there Judgment was given upon Confession and therefore doth not rule our Case and in Sir Iohn Lambes Case there was no Judgment given and therefore that doth not rule our Case but Melsam and Darbies case M. 6 Car. Rot. 389. in the Kings Bench a Case in the point where Judgment was reversed upon a Writ of Error there brought for want of demand and Selden and Sherleys case in that Court a Case also in the point was reversed Mich. 16 Car. in the Kings Bench upon a Writ of Error brought for want of demand wherefore I conclude that there ought to have been an actual demand at the house according to the grant in our Case and therefore the Traverse in this Case taken by the grantor is well taken Note that Justice Crawley said that Lambes Case was adjudged that there needed no demand and he said that there were three Judgments accordingly in this Court but Rolls Serjeant said that Darbies Case was reversed in the Kings Bench for want of a demand But note that Foster and Reeve Justices did incline that there should be a demand and so Bankes Chief Justice for he said that it is part of the contract and like a condition precedent for as in a condition precedent a man ought to perform the condition before he can take any thing by the grant so in this Case the grantee ought to make a demand to enable him to distrein for before the demand he is not by the manner of the grant which ought to be observed entitled to a distress wherefore he give direction to the Counsel that they would view the Records and shew them to the Court and further he said to them that where it appeareth that the Rent was demandable upon the land that those cases were not to the purpose and therefore wished that they would not trouble the Court with them Levet and Sir Simon Fanshawes Case in Common Pleas Trin. 17. Car. Regis 249. LEvett brought debt against Sir Simon Fanshawe and his Wife as Executrix of another and sued them to the Exigent and at the return of the Exigent the Defendant Sir Simon Fanshawe came in voluntarily in Court and prayed his Priviledge because he was an Officer of the Exchequer and whether he should have his priviledge in that case or not was the question and that rests upon two things First because he is sued as this case is meerly for conformity and necessity-sake and in the right of another viz. in the right of his wife as Executrix And secondly because he demands his priviledge at the Exigent Whitfield Serjeant that he ought to have his priviledge and he cited Presidents as he said in the point as Pasch. 44 Eliz. in the Exchequer Iames Ashtons case sâ—rvant to the Treasurer and Pasch. 23. Iac. Rot. 131. Stantons case also in the Exchequer in both which cases he said husband and wife were sued in the right of the wife and the husband had his priviledge But he cited a Case which was nearer our Case and that was Hill 8. Iac. in the Exchequer Wats and Glovers case where husband and wife were sued in the right of the wife as Executrix and he said that it was over-ruled that the husband should have his priviledge 22 H. 6. 38. and 27 H. 8. 20. in those Cases the husband and wife were sued in the right of the wife and yet the husband
Case because it is but one clause the whole grant is void Another difference is Where the distinct clause is repugnant and where not where it is repugnant there it is void and the grant good quia utile per inutile non vitiatur But in our Case as I have said before it is one intire sentence M. 13. or 23 Iac. in this Court Rot. 679. Sympson and Southwells Case the very Case with our Case There was a surrender of a Copy tenant to the use of an Infant in ventre sa mier after the death of the surrenderor and there it was resolved by all the Judges except Dodderidge that the surrender was void First because it was to the use of an Infant in ventre sa mier and Secondly because it was to begin in futuro which is contrary to the rule in Law and Copy-tenants as it was there said ought to be guided by the rules of Law but Dodderidge doubted of it and he agreed the Case at Common Law that a freehold could not commence in futuro but he doubted of a Copyhold and he put the Case of surrender to the use of a Will But he said that Judgment was afterwards given by Coke Chief Justice in the name of all the other Judges that the surrender was void and therefore Quod querens nihil capiat per billam wherefore he concluded that the surrender was void and prayed the Judgment of the Court. Langhams Case 237. LAngham a Citizen and Freeman of London was committed to Newgate by the Court of Aldermen upon which he prayed a Habeas corpus which was granted upon which return was mane First it is set forth by the return that London is an ancient City and Incorporate by the name of Mayor Comminalty and Citizens and that every Freeman of the City ought to be sworn and that a Court of Record had been held time out of mind c. before the Mayor and Aldermen And that there is a custom that if any Freeman be elected Alderman that he ought to take an Oath cujus tenor sequitur in haec verba viz. You shall well serve the King in such a Ward in the Office of Alderman of which you are elected and you shall well intreat the people to keep the Peace and the Laws and Priviledges within and without the City you shall well observe and duly you shall come to the Court of Orphans and Hustings if you be not hindred by Command of the King or any other lawful cause you shall give good counsel to the Mayor you shall not sell Bread Ale Wine or Fish by retail c. Then is set forth a custome that if any person be chosen Alderman he shall be called to the Court and the Oath tendred to him and if he refuse to take it then he shall be committed until he take the Oath Then is set forth that by the Statute of 7 R. 2. all the customs of the City of London are confirmed And lastly is set forth that the 11 of Ian. Langham being a freeman of London and having taken the Oath of a freeman was debito modo electus Alderman of Portsoken-ward and being habilis idoneus was called the first of February to the Court of Aldermen and the Oath tendred to him and that he refused to be sworn in contemptum Curiae contra confuetudines c. wherefore according to the custom aforesaid he was committed by the Court of Aldermen to Newgate until he should take the Oath haec fuit causa c. To this retorn many exceptions were taken Maynard the retorn is insufficient for matter and form for form it is insufficient for the debito modo electus without shewing by whom and how is too general then it is insufficient for the matter for he is imprisoned generally and not until he takes the Oath which utterly takes away the liberty of the subject for by this means he may be imprisoned for ever Besides here is no notice given to him that he was chosen Alderman but they elect him and then tender him the Oath without telling him that he was chosen Alderman and therefore the retorn not good for it ought to be certain to every intent Further the Oath is naught and unreasonable for he ought to forswear his Trade for if he sell Bread Ale Wine or Fish before now he must swear that he shall never sell them by retail after which is hard and unreasonable for perhaps he may be impoverished after and so necessitated to use his Trade or otherwise perish wherefore for these reasons he conceived that the Retorn was insufficient Glynn upon the same side that the Retorn is insufficient and he stood upon the same exceptions before and he conceived that notice ought to be given to him that he was chosen Alderman for this reason because of the penalty which he incurs which is imprisonment and he compared it to the Cases in the 5 Rep. 113. b. 8 Rep. 92. That the feoffâ—e of Land or a Bargain of a reversion by Deed indented and inrolled shall not take advantage of a condition for not payment of Rent reserved upon a lease upon a demand by them without notice given to the lessee for the penalty which insues of forfeiture of his Term. So in our Case he shall not incur the penalty of imprisonment for refusing to be sworn without notice given him that he 〈…〉 chosen Alderman He took another exception to the Oath because he is to swear that he shall observe all Laws and Customs of the said City generally which is not good for that which was lawful before pâ—radventure will not be lawful now for some Customs which were lawful in the time of R. 2. are now superstitious and therefore are not to be kept Further it is to keep all the customs within and without the City which is impossible to do Wherefore for these reasons he conceived the Retorn not to be good and prayed that the prisoner might be discharged Saint-Iohn Sollicitor of the same side The custom to imprison is not good Besides here the imprisonment is general so that he may be imprisoned for ever which is not good and the Statute confirms no customs but such as are good customs I agree that a custom for a Court of Record to fine and for want of payment to imprison may be good because the custom goes only to fine and not to imprisonment the Case of 1 H. 7. 6. of the custom of London for a Constable to enter a house and arrest a Priest and to imprison him for incontinencie comes not to our Case for that is for the keeping of the peace which concerns the Commonwealth as it is said in the Book and therefore may be good but it is not so in our Case A Corporation makes an ordinance and injoyns the observance of it under pain of imprisonment it hath been adjudged that the Ordinance is against the Statute of Magna Charta that Nullus
do so it is void And for that he cited Clegat and Batchellers Case before that the obligation in such Case is void and he said that the reason which was given by one why the Bond should be void was grounded upon the Statute of Magna Charta cap. 29. which wills That no freeman should be ousted of his Liberties but per legem terrae and he said that the word Liberties did extend to Trades and Reeve said that by the same reason you may restrain a man from using his Trade for a time you may restrain him for ever And he said that he was confident that you shall never find one Report against the Opinion of Hull 2 H. 5. For the other part of the difference he cited Hill 17 Iac. in this Court Rot. 1265. and 19 Iac. in the Kings Bench Braggs case in which Cases he said it was adjudged against the Action upon a Bond but with the Action of the Case upon a promise that it would lie But note that all the Judges viz. Foster Reeve and Crawley Bankes being absent held clearly that if the condition be against the Law that all is void and not the condition only as was objected by Evers and it was adjorned Apsly against Boys in the Common Pleas in a Scire facias to execute a Fine upon a Grant and Render Intrat Trin. 16 Car. Rot. 112. 239. THe Case upon the Pleading was this A fine upon a Grant and Render was levied in the time of E. 4. upon which afterwards a Scire facias was brought and Judgment given and a Writ of seisin awarded but not executed Afterwards a fine Sur coâ—usans de droit come ceo c. with Proclamations was levied and five years passed and now another Scire facias is brought to execute the first fine to which the fine Sur conusance de droit come ceo is pleaded so as the only Question is Whether the fine with Proclamations shall bar the Scire facias or not Serjeant Gotbold for the Plaintiff it shall not bar and his first reason was because not executed 1 Rep. 96 97. and 8 Rep. 100. If a disseisor at the Common Law before the Statute of Non-claim had levied a fine or suffered Judgment in a Writ of Right until Execution sued they were no bars and a fine at Common Law was of the same force as it is now and if in those Cases no bar at Common Law until Execution that proves that this interest by the fine upon grant and render is not such an interest as can bar another fine before execution Besides this Judgment by the Scire facias is a Judgment by Statute and Judgment cannot be voided but by error or attaint Further a Scire facias is not an Action within the Statute of 4 H. 7. and therefore cannot be a bar 41 E. 3. 13. 43 E. 3. 13. Execution upon Scire feci retorned without another plea and it is not like to a Judgment for there the party may enter but not here Besides it shall be no bar because it is executory only and in custodia legis and that which is committed to the custody of the Law the Law doth preserve it as it is said in the 1 Rep. 134. b. and he compared it to the Cases there put and a fine cannot fix upon a thing executory and the estate ought to be turned to a right to be bound by a fine as it is resolved in the 10 Rep. 96. a. 9 Rep. 106. a. Com. 373. And the estate of him by the first fine upon grant and render is not turned to a right by the second fine Lastly the Statute of 4 H. 7. is a general Law and in the affirmative and therefore shall not take away the Statute of West 2. which gives the Scire facias and in proof of that he cited 39 H. 6. 3. 11 Rep. 63. 68. and 33 H. 8. Dyer 15. I agree the Case which hath been adjudged that a fine will bar a Writ of Error but that is to reverse a Judgment which is executed but here the Judgment is not executed and therefore cannot be barred by the fine wherefore he prayed Judgment for the Plaintiff Note that it was said by the Judges that here is no avoiding of the finâ— but it shall stand in force but yet notwithstanding it may be barred and they all said that he who hath Judgment upon the Scire facias upon the first fine might have entred and they strongly inclined that the Scire facias is barred by the fine and doth not differ from the Case of a Writ of Error but they delivered no opinion Taylers Case 240. THe Case was thus The Issue in Tail brought a Formedon in Descend and the Defendant pleaded in Bar and confessed the Estate Tail but said that before the death of the Tenant in Tail I. S. was seised in fee of the lands in question and levied a fine to him and five years passed and then Tenant in Tail died whether this plea be a bar to the Plaintiff or not was the Question and it rested upon this Whether I. S. upon this general Plea shall be intended to be in by disseisin or by feoffment for if in by disseisin then he is barred if by feoffment not and the opinion of the whole Court was clear without any debate that he shall be intended in by disseisin and so the Plaintiff is Bar as the Books are 3 Rep. 87. a. Plow Com. Stowels Case and Bankes Chief Justice said that it shall not be intended that Tenant in Tail had made a feoffment to bar his issues unless it be shewed and it lies on the other part to shew it and a feoffment is as well an unlawful Act as a dissâ—isin for it is a discontinuance Commins against Massam in a Certiorare to remove the proceedings of the Commissioners of Sewers 241. THe Case upon the proceedings was thus Lessee for years of Lands within a level subject to be drowned by the Sea covenanted to pay all assessments charges and taxes towards or concerning the reparation of the premisses A wall which was in defence of this level and built straight by a sudden and inevitable Tempest was thrown down one within the level subject to be drowned did disburse all the mony for the building of a new wall and by the order of the Commissioners a new wall was built in the form of a Horshooe afterwards the Commissioners taxed every man within the level towards the repaying of the sum disbursed one of which was the lessee for years whom they also trusted for the collecting of all the mony and charge him totally for his land not levying any thing upon him in the reversion and also with all the damages viz. use for the mony Lessâ—e for years died the lease being within a short time of expiration his executor enters and they charge him with the whole and immediately after the years expired the executors brought this
paid may inforce a Distribution or not quaere 65. pl. 102. 93. pl. 158. Double Plea Where two things are alleadged and the one of necessity onely or by way of inducement and the party relies onely upon the other that is no double Plea 55. pl. 84. 74. pl. 113. Ejectione Firme Ejectone Firme de uno repositorio nought for the incertainty 96 pl. 166. Ejectione Firme de tanto unius messuagii c. qâ—aâ—tum â—â—at super ripam is nought for the incertainty and so where the Tâ—over of the Jury is such it is nought 97. pl 168. Elegiâ— Upon an Elgit there needs no Liberate otherwise upon a Statute Note the Elegit excepts averia Caruâ—â— 117. pl. 194. Equity Certain special Cases where there shall be remedy in Eqâ—ity where not pa 83. pl. 1â—8 88. pl. 141 90. pl. 145. 93. pl. 159. 99. pl 1â—1 102 pl. 175. 105. pl. 182. 106. pl. 183. 129. pl. 207. Errors In Error to reverse a Judgement in Debt upon an Arbitrament Judgement was reversed first because that in the reference to the Arbitrament there was no word of the submission Secondly because that the entry of the Judgement was considâ—ratum est and per Curiam omitted 7. pl. 16. In an Actâ—on for words Judgement was reversed because that it was averred that the words were spoken inter diversos ligeos and doth not say Cives of the place where they have such an acceptation as also for that the Judgement was Consideratum est and per Curiam Omitted 15 pl 37. In Trespass the Defendant justifies by a special Custom by Vertue of which he did it and doth not say quae est eadem transgressio for which Judgment was reversed 16. pl. 38. Judgment was reversed for want of Pledges 17 pl. 40. Outlawry was reversed because it did not appear where the party outlawed was inhabitant as also for that it did not appear that Proclamations were made at the Parish-church where c. 20. pl. 46. Judgement reversed for the appearance of an Infant by Attorney 24. pl. 53. Oâ—tlawry reversed because the Exigent was Secund. exact ' ad Com' Meum â—bm ' c. 25. pl. 58. A. Wife of I. S. intestate promises to B. to whom Administration was committed that if he would relinquish Administration at the request of C. and permit A. to Administer that A. would c. in Assumpsit by B. he shewed that he renounced Administration and permitted A. to Administer but doth not shew that it was at the request of C. by Barkley Just. it is Error 55. pl. 86. Judgement ought not to be judged erroneous by implication 56. pl. 88. 61. pl. 95. A Writ of Error upon Dower well lies before the Retorn of the Writ of Enquiry of damages but whether a Writ of Error lies in an Ejectione firme before Judgment given upon the Writ of Enquiry quaere 88. pl. 142. Want of Warrant of Attorney for the Plaintiff after Judgment upon nihil dicit is Error and not amendable 121. pl. 201. 129. pl. 209. Writ of Error bearing Teste before the Plaint entered is nought otherwise where is bears Teste before Judgment 140. pl. 112. In an Ejectione firme the Writ was 〈◊〉 armis but it wanted in the Count and whether this is error or amendable or not quaere 140. pl. 213. Escape Upon mean Process if the Sheriff retorn a Cessi and Rescous no Action lies against him for the escape otherwise in case of Execution 1. pl. 1. Estoppel Morgager makes a Lease for years by Deed indented after performs the condition and makes a Feoffment in â—ee the Feoffee claiming undeâ— the Estoppel shall be bound by the Lease 64. pl. 99. If a man bind himself to deliver any thing he is estopped to say that he hath it not 74. pl. 113. Estoppel binds only parties 105. pl. 180. Evidence to an Inquest upon Issues joyned Depositions taken in the Ecclesiastical Court cannot be given in evidence at Law though the parties were dead 120. pl. 198. Executions prayer in execution A second Execution cannot be granted before the retorn of the former 47. pl. 73. Where a man is imprisoned for the Kings Fine and upon a Habeas coâ—pus it is retorned that he is in Execution also for the Damages of the party it ought to be intended at the prayer of the party 5a pl. 80. Executor Administrator An Executor or an Administrator may maintain an Action for any Coâ—tâ—â—ct made to the Testator or Inâ—estate or for any thing which riseth ex contractu 9. pl. 23. Administrator of an Executor shall not sue a Scire Faâ— ' upon a Judgement given for the Testator 9. pl. 24. A Sheriff levies moneys upon a Fâ—â—ri Fas ' and dies Debt will lie against his Executors 13. pl 33. Whether the Executor of a Phâ—llizer shall have the profits of the Writs which are to â—e subscribed with his name or his Successor quaere 90. pl. 147. Expositors of Statutes The Judges are the sole Expositors of Acts of Parliament though they concâ—rn Spiritual matters 90 pl. 148. Extinguishment and Suspension Three covenant joyntly with two severally after one of the covenantors marries one of the covenantâ—es whether the covenant be good or not 103. pl. 176. Fine to the King IF a Carrier spoil the High-ways by drawing a greater weight than is warrantable by the Custom of the Realm he is â—inable to the King 145. pl. 210. Fines of Lands Disseisee levies a Fine to a stranger this doth not give the right to the Disseisor 105 pl. 180. Tenant for life the Reversion to an Ideot an Uâ—cle Heir apparant to the Ideâ—â— levies a Fine and dies Tenant for life dâ—eth the Ideâ—t dies whether the Issue of Uncle who levied the Fire â—â—albe barred by this or not quaere 4. pl. 164. 146. pl. 216. Forcible Entry Restitution cannot be awarded to the Plaintiff if it doth appear that he hath seisin yet the King shall have his Fine and if the Indictment be adtunc adhuc the Defendant keeps the possession forcibly where the Plaintiff was in possession Re-restitution shall be awarded 6. pl. 12. Forgery To forge a Will in writing though without a Seal is forgery within the Statute of 5 Q. ca. 14. Freehold What shall be said a grant of a Freehold to commence at a day to come what not 31. pl. 66. Gardeins of a Church WHere the Custom is for the Parishoners to chuse the Churchwardens the Person by colour of the Cannon cannot chuse one and if the Minister of the Bishop refuse to swear one of them chosen by the Parish a Mandat lies to inforce him to it and if the Parson thereupon doth Libel in the Ecclesiastical Court a Prohibition lies 22. pl. 50. 67. pl. 104. The Gardeins of a Church in London are a Corporation and may purchase Lands to the use of the Church and in the Country they are a Corporation capable to purchase Goods to the