said Goe not to such a one c. it is actionable without question Slander of one in his Trade will bear an action And so all being connexed alike it ought to be intended that he killed him in respect of his skill In Cases of Defamation Sir George Hasting's Case Thou didst lye in wait to kill me with a Pistoll were actionable So if one touch another in respect of his skill in that that he professes it will maintain an action c. And Yelverton to the same purpose for there is a difference between a Profession and a particular Calling As if words are spoken of one that is a Iustice of Peace he ought to shew that he was then a Iustice of Peace for he is removable and may be changed every Quarter Sessions But as to a Calling the Calling of every man is his Free hold 43 E. 3. Grant of an Annuity to one pro consilio and he professes Divinity Physick and Law there the grant is pro consilio generally for Physick if that be his usuall Profession And it is intended that a man alwayes dyes in his Calling If he said to I. S. Thou art a murtherer it shall not be intended of Hares for the Iudges are not to search so far for construction Loquendum ut vulgus intelligendum et sapiens If one sayes of a Merchant Put not your Son to him for hee 'l starve him to death These words are actionable for that that it comes within the compasse of the disgrace of his Profession And so of a School-master Put not your Son to him for hee 'l come away as very a dunce as he went Harvey If one sayes of a Iudge He is a corrupt Iudge it cannot be meant of his body to be corrupt but it shall be intended of his Profession Peitoes Case before HEnden for the Defendant the Case is thus A Rent is granted for life out of Lands which descend to the Heir and he makes a Lease of parcell of the Land to the Grantee for years who surrenders the term Whether the Rent shall revive or suspend during the term And it was said by him it shall revive First For that that it is the act of him who is lyable to the Rent to accept the surrender And there is a difference where there is a determination barely by the act of the party there it shall not be revived For the first 21 H. 7. 9. Tenant in Tayl of a Rent is infeoffed of Land and he makes a Feoffment of Land with a warranty to B. with Voucher as of land discharged of that Rent And so it is 19 H. 6. 55. Ascue put this Case Grantee of a rent in Fee and Donee in Tayl of Land infeoffs the Grantee who grants that over and afterwards the issue in Tayl recovers in a Formedon yet the rent shall not be revived But if it had been the joynt act of the parties as so by surrender it should have been revived First It is clear that if a Chattell personall be suspended by Sute it shall be gone for ever As if a Feme marries the Obligor 11 H. 7. 25. unless suspension be in anothers right if it be by the act of the party there it shall be revived As if a Feme Executrix marry with the Obligor and he dyes the suspension is determined and they are revived against the Executors 7 H. 6. 2. In one Gascoines Case Lessee surrenders to the Lessor upon condition the rent be suspended but if the Lessor enter for conditions broken the Rent is revived Which in effect is our case A rent is granted to the Daughter and the land descends to her and her other Sister who make partition The Rent is revived for it is the joynt act of both parties Plow 15. If a man had a Rent and disseises the Tenant of the land and after the Disseisee re-enters Where there is a revivor of the land there is a revivor of the Rent for the disseisin was the cause of the suspension and that now is gone Secondly Because that when the Lessee for years surrenders the term is determined to all purposes and the Lessor is in of his Estate is Fee and there is a diversity of surrender in respect of a stranger for to a stranger it may have Essence after surrender But as to himself it is otherwise extinct And he cannot say that it had any Essence 5 H. 5. 12. But in respect of a stranger it ha's continuance as if an Executor surrenders yet it shall be assets And all acts done upon Lessee for ltfe before surrender shall have a continuance after And so he prayed Iudgement for the Avowant But more after Wakeman against Hawkins IT was said That if an Executor was sued in this Court by Originall he shall not put in Bayl. But if he be arrested in an inferiour Court and removed by Habeas corpus he ought to put in Bayl. Stamford and Coopers Case STamford and Coopers Case was thus I. S. acknowledges a Statute to Cooper the 22 January and afterwards he confesses a Iudgement to Stamford the 23 of January next ensuing the Statute And it is extended And Stamford brought a Scire fac against Cooper to wit now because he ought not to have the land by Elegit And the Question was whether the Iudgement by relation shall defeat the Statute And it was resolved That the Iudgement shall have relation to the Essoin day which is the 20 day of Ianuary for that is the first day of the term legally and the fourth day after is the first day of the Term open Dyer 361. Pla. 10. A Release was pleaded after the last continuance and it bore date the 21 of Ianuary which was after the day of Essoin de Octab. Hil. And for that nought because that it came late for it ought to have been after the last continuance and before the last day c. 33 H 6. 45. Nisi prius was taken after the day of the return and before the fourth day after and adjudged nought because that the day of the return which is the Utas is the first day of the term and the fourth day after but a day of Grace and that is the difference If a man be obliged to pay money the first day of the Term he shall not pay it but upon the fourth day after for that is the first day in all common acceptance But in all legall proceedings the first day is the Essoin day And so it was adjudged 16 Eliz. And in the Kings Bench it was in one Williams Case A Iudgement was given the 20 of Ianuary and a Release of all Errours the 21 Ianuary and adjudged that that bars the Iudgement given the 20 Ianuary although it was not entred the fourth day after A Iustice in the Kings Bench examined an Infant upon inspection the Essoin day and found him to be under age and would not permit him to confess a Iudgement although that he would
himself from all rights as concerning himself yet the Donor shall by force of this Statute which at the Common law he could not And if the Donor will release all his right in the Land to the Donee after a discontinuance by Feoffment his release though it will extinguish no right to the very Land yet it will extinguish Rents which proves that the Donee by his Feoffment cannot dismiss himself of all his right but that by the Statute of West his alienation is disabled as to that but that the Donor may avow for the Rent But wheresoever Tenant in tayl suffers a Recovery or levies a Fine the Rents together with the entayl ceases And the answer as to that is imperfect to resemble it to the Case of tenant in see simple doth alien and yet the Lord may avow upon him for the Cases have no resemblance for as Littleton well distinguisheth when Tenant in fee hath departed with his whole Estate he is no more Tenant to the Lord to avow upon though the Lord if he Will may avow upon him for the arrerages and if the Lord after future alienation release to him all his rights in the Land the Release is void to release the Rents and Services in all which it differs materially from the other Case and it is an equall proportion of the Law That when the Lord aliens his signory the Tenant is to he acquainted that all Arrearages may be paid that he may have no after-reckonings for after notice and the Arrerages paid the avowrie vanisheth Now for the Heir in tayl claiming from his Ancestor after his Feoffment by descent from him thereby allowing a right to remain in him against his Feoffment The Case is more difficult because during the Feoffor there can be no motion of that right neither by the Feoffor who hath hard himself nor his Issue because his Right is not yet come yet let me put this Case upon the Statute 11 H. 7. upon the opinion of Mountague Chief Iustice If Tenant in tayl Iointress make a Feoffment the person to whom the land doth belong after her death may enter and hold it according to his right Now till such Entry there is a discontinuance but when the Issue enters he is an Heir intayl et quasi eins per discent But now generally when Tenant in tayl hath made a Feoffment and dies the Heir shall bring a Formedon in the Discender and shall count that descendere debet from that Ancestor that made the discontinuance performam doni and therefore the Writ saith discendit jus it is as much devenit jus It is true that regularly a Feoffment bars all former rights and future rights yet respect to be had to Estrangers Albanies Case 2 Rep. Archers Case 1 Rep. 66. 9 H. 7. And therefore in Archers Case Lands were demised to one fore life remainder to his first Heir male Tenant for life made a Feoffment in fee and died his next Heir was barred of his right for ever by the Feoffment A man seised of Land by right of his Wife makes a feoffment in fee and then the Estate is made back to the Wife she is thereby remitted and her Husband shall never be Tenant by the Courtesie and therefore well resolved if Tenant in tayl discontinue and levy fine with Proclamations is no bar to the Estate tayl Now this Case is irregular because it standeth by Act of Parliament which is able to make the same Act good to one purpose or person and void or voidable to another as the Statute of Ecclesiastical persons and binds the party but is void or voidable against the Successors and shall nevertheless when they enter be in by succession And that there is still a right remaining in the Tenant in tayl appears in that he hath still in him a power to bind it more finally and totally by fine and recovery if he pursue them rightly and therefore note Cuppledikes Case If Tenant in tayl with divers remainders over make a Feoffment and Feoffee vouch not the Feoffee Tenant in tayl in possession but the first in Remainder by the Statute the Feoffees are not bound but are remitted and Maunsells Case there is cited where one recovery is a bar to 3 several Intayls with double voucher And this is called jus extinguendi which he could not extinguish and discharge if not in him and in his power and therefore there is no cause to frame Abeyances needless and in vain but the Law allows not nor admits not but in Cases of necessity as in the vacancy of Bishops Parsons and other Ecclesiastical persons or the like Remainders to right Heirs upon Freehold abeyances are not allowed but where the original Estate required them or where the consequences of Estates and Cases do require them As for the first in Case of single Corporations Bishops Deans and Parsons which must dye and a vacancy of freehold or a Remainder to the right Heirs of I. S. yet living Or Secondly in Case of congruity as if a man gives a Warranty and die his Heir in ventre sa mere may not be vouched but if there be Heir he may be vouched and a Vouchee may take and plead a Release quasi tenens or may lease a Fine to the Defendant of the Land in Question But for Estates that of their own nature and origination creation are perfect and intire as this Estate entayl is the Law permits not vain affected abeyance or fictions by the voluntary Act of the party as this to no good which should preserve a right to serve the Heir and to defraud the King which was one of the principal reasons for the making the Statute 27 of H. 8. for the transferring of uses into possession Vses being but a kind of abeyance and shift to kéep the profits to the use and defraud the King and Lords of their Escheats and them that had a right to know against whom to bring their Actions Littleton was confounded in himself when he made an abeyance of totum statum suum and yet made an Estate for life which is condemned in Walsinghams Case by the Iudges Again though fictions take place amongst common person the King is not bound by fictions and therefore the King is not bound by his remainders by recompence feigned upon a common recovery warrant collateral binds not the King but warranty with real and actual Assets nor the King is not bound by Estoppels of his own recitall certa scientia as it is in Altenwoods Case And I hold plainly that as the Land in possession is distinctly and literally given to the King so the right is as literally directly and plainly given to the King by discharge of that ancient right whereof formerly it was bound for when the Statute saith that the King should have the Lands saving the right of all persons other than the Offenders and their Heirs and such as claim to their use it is plain that the eye of the Statute was not
for a Legacy and that upon the Statute of 23 H 8. cap. 9. And Henden said that a Prohibition might not be granted for two causes First The Statute is general That no person c. then there is a proviso That this Statute does not extend to any probate of Wills in the Prerogative Court Then a Legacy cannot be recovered in any other Court. For if a Will be proved there no inferiour Ordinary will meddle with that Will and alwaies they had the execution of all Wills proved there in that Court Secondly It is pretended that the party is cited out of a particular Iurisdiction But that is not a Iurisdiction within this Statute For no Iurisdiction is intended but where there is an Ordinary But in the Tower of London there is no Ordinary But it is but as a Lord of a Mannor who had probate of Wills which is but a lay Iurisdiction c. Thirdly There is no Ecclesiastical Iurisdiction there But Davenport replyed That although for the present time no Ecclesiastical Iurisdiction is executed there because the Lord is dead Yet Spiritual Iurisdiction is executed there Hutton said If there he cause de bonis notabilibus Then the Archbishop had the Prerogative and might cause the proving of the Will But it stood with reason That where an Executor is tyed to perform the Will which may be there sued and the property of sute ought to be there where there is cause of Prerogative Harvey If there be cause of Prerogative and proof of the Will in the Prerogative Court Yet in the inferiour Iurisdiction the party will be compelled to prove the Will also But by Crook and Hutton minus juste An Action of Battery AN Action of Battery is brought against two and one dies before tryall and it was entred upon the Roll But the Venire facias was awarded against both and dammages assest And by Yelverton it cannot be amended For it was not the Act of the Court but of the Iury So that now dammages cannot be severed For although he may have the entire dammages against which he will yet if they be severd you will then oust him of his Election Quod non fuit negatum A Prohibition IN a Motion for a Prohibition where the Ordinary would make distribution It was agréed Richardson being absent That if the Ordinary commits Administration to the Wife of the Intestate that he cannot revoke that But if he grant Administration to one as Prochein de Sank and another more near of Blood comes He may revoke And because the Administration being granted all the power of the Ordinary is determined and then he cannot make distribution And if the Administration be one time justly granted the Grantée had a just Interest which cannot be revoked And although it was urged that those Prohibitions were not granted untill of late time yet they say those things passed Sub silentio Yelverton They cannot grant Admistration before a division was made And by Crook and Harvey An Action upon the Case lyes against the Ordinary if he will not grant Administration where he ought And at an other day it was moved by Finch Recorder That such a Prohibition could not issue in one Davyes Case And Richardson said That because that that Case was a Case of Extremity For Davyes had not any thing or portion allotted him by his Father who was dead And his Mother who was Administratrix turned him out of her House without any maintenance stopped the Prohibition which was granted before And said that it was in the discretion of the Court to grant such a Prohibition or not But Harvey and Crook said secretly betwéen themselves that it was not in the discretion of the Court. Garton against Mellowes AN action of Battery was brought by Garton against Mellowes And the Plaintiff pleaded a Recovery by the same Plaintiff for the same Battery in the Kings Bench against another who joyned in the Battery And the Piaintiff replies Nul tiel Record Vpon which they were at issue and the Record was brought in at the day assigned And these variances were objected for to make it fail of a Record And first The award of the Dist jurat in the Kings Bench is Coram domino Rege and there it was Coram domino nuper rege But not allowed For the King died before the Plea there and then it ought to be so pleaded Secondly That in one Record the Plaintiff is Generosus in the other Armiger Brampston said That that was such a variance which could not be amended Dyer 173. One recovers in debt by the name of I. Cives and Sadler And the Defendant brought Error and removes the Record inter I. Civem Salter c. And it was rul'd that the Record was not well removed upon that Writ Dyer 178. Plo. 8. Vpon Nul tiel Record there was a variance in the day of the Return of the Exigent and in the place where the Outlary was pronounced And adjudged a variance which could not be mended And now here there cannot be an amendment because it is after tryall And by amendment there might be a cause of changeing the Plea For he took that Issue by reason of the variance and after verdict there cannot be an amendment Mich. 2 Jac. Kings Bench Tayler and Fosters Case In an Ejectione firm upon a Lease made 10 Iunii and upon not guilty pleaded it was found for the Plaintiff And in Error it was assigned for error that the Imparlance roll was 10 Iunii and Issue roll the 12 Iunii and it appeared there was a rasure And it was agréed that if it was after verdict it could not be amended Atthowe This variance is not substantiall And the cases put do not make to this case For Salter and Sadler are two severall Trades And it cannot be intended the same man for he may vary in his action as he pleases But the Court said nothing to that Exception Thirdly In the Record of Nisi prius there was another fault It was agréed that a Material variance cannot be amended Yelverton said That he might have new Execution For he pleaded a recovery and execution in Bar and that they came to take whereof he had failed For that it stood now as another battery For it does not appear by the Declaration of the Plaintiff c. Smith against Sacheverill AN Action of Wast is brought by Smith against Henry Sacheverill and declares Whereas Henry Sacheverill the Grandfather was seised of these Lands he levyed a Fine of them to the use of himself for life with power to make a Lease for three lives and after to Smith his son for his life the remainder to the first begotten son of Smith in tayle The Grandfather makes a Lease for three lives and dyes and Smith and his first begotten son bring this Action of Wast against the Lessee and they assigne their wast in killing red Deer in a Park and upon nul wast pleaded it was
found for the Plaintiff and Finch Recorder moved in arrest of Iudgement first for that they assigne the wast in a Park where the wast is in Land c. Secondly Because that that Action did not lye for them both alike for if the Grandfather and he in the remainder in tayle had joyned in a Lease yet they could not joyne in wast The Books are If Tenant for life and he in the remainder joyn in a Lease they may also joyn with wast 21 H. 8 14. Although 19 H. 7. be put otherwise And 2 H. 5. Sir William Langfords Case Two joynt Tenants to the Heirs of one of them and they make a Lease for life And it was adjudged that they might joyn in wast for the Tenant for life had a reversion for life and had not made any Forfeiture If the Grandfather and he in remainder had joyned in a Lease and afterwards in wast it had been naught for the lease came out of the first root And it was resolved Tr. 2 Jac. Kings Bench Poole and Browses Case That one in remainder cannot have wast where there is an intermediate Estate for life Yelverton and Hutton did not believe the Case of 2 Jac. Crook If there be Tenant for life with such a power c. of Lands held in capite he may make Leases for life without Licence of Alienation and well proves this cause Yelverton and Hutton For the wast being assigned in a Park it is good for a Park is Land Sed adjournatur Hodges against Franklin TRover and Conversion is brought by Hodges against Franklin The Defendant pleads sale of the Goods in Marlborough which is a Market overt and the Bar was well pleaded and an Exception was taken For that that it is not said that Toll was payed It was said by Hutton That there are divers places where no Toll is to be paid upon sale in Market And yet the property is changed and Iudgement accordingly Grimston against an Inn-keeper IN an Action upon the Case it was said at the Bar and not gain-sayed That they ought to say in the Declaration Trasiens hospitavit for if he board or sojourn for a certain space in an Inne and his Goods are stollen the Action upon that is not maintainable And for omission although the Verdict was given for the Plaintiff Iudgement was given Quod nihil capiat per billam upon fault of the Declaration and he paid no Costs Wilkins against Thomas IT was said by the whole Court That a consideration is not traversable upon an Assumpsit but they ought to plead the generall issue and the Consideration ought to be given in Evidence Ireland against Higgins IReland brought an Action upon the Case against Higgins for a Greyhound and counts that he was possessed ut de bonis suis propriis and by Trover came to the Defendant and in consideration thereof promised to re-deliver him It seemed to Yelverton that the Action would not lye and the force of his Argument was that a Grey-hound was de fera natura in which there is no property sed ratione fundi live Deer and Coneys and vouchd 3 H. 6. 56. 18 E. 4. 24. 10 H. 7. 19. for a Hawk for Hares are but for pleasure but Hawks are Merchandable This difference in 12 H. 8. is allowed so long as a Dogge is in the possession of a man an Action of Trespasse lyes detinue or replevin But no Action if he was out of his possession and so had not a property then there is no consideration which is the foundation of an Action Hutton to the contrary and said the whole argument consisted upon false grounds as that a Dogge is ferae naturae Which if it were so he agreed the difference in 12 H. 8. But he intended that a Dogge is not ferae naturae for at first all Beasts were ferae naturae but now by the industry of man they are corrected and their savagenesse abated and they are now domesticae and familiar with a man as Horses and a tame Deer if it be taken an Action lyes Rogers of Norwich recovered Damages pro molosso suo interfecto And 12 H. 8. So of a Hound called a Blood-hound And a Dogge is for profit as well as for pleasure For a Dogge preserves the substance of a man in killing the Vermine as Foxes And now is not an Horse for the pleasure of a man for a man may goe on foot if he will and an Horse is meat for a man no more than a Dogge Therefore an Action may lye for the one as for the other And for a Hawk he ought to shew that it was reclaimed for they are intended ferae naturae One justifies in 24 Eliz 30. for a Battery because he would have taken away his Dogge from him A Repleavin was brought for a Ferret and Nets and a Ferret is more ferae nat than a Dogge Seale brought 25 Eliz. Trespass for taking away his Blood-hound and there it was said to be well laid And then now if he has a property the consideration is good enough to ground an Assumpsit It is adjudged that a feme dowable The heir promises to endow her before such a day and the Action is maintainable upon that by the Court Intraturudic pro quer if no other matter were shewed by such a day Jenkins Case HE brought an Action upon a promise to the Plaintiff That if he marryed her with the assent of her Father she would give him 20. l. Adjudged a good consideration by the Court. 3 Car. rot 414 Sir Edward Peito against Pemberton SIr Edward Peito is Plaintiff against Pemberton in a Replevin and the Defendant was known as Bayliff to H. Peito and said that H. Peito the Grandfather had granted a Rent for life to H. Peito the Son to commence after his death The Plaintiff confesses the grant but sayes that after the death of Peito the Grandfather these Lands out of which the Rent issued descended to Peito the father who made a Lease for a thousand years to the Grantee and dyes The Avowant confesses the Lease but sayes that before the last day of payment he surrendred to the Plaintiff Vpon which there was a Demurer and the question was whether the surrender of the Lease would revive the rent Harvey If he had assigned the Lease to a stranger the rent had been suspended 5 H. 5. One grants a rent charge who had a reversion upon a Lease for life to commence immediately there the question was when the Lease was surrendred whether the rent now became in esse because that the Lease which privileged the Land from distresse is now determined in the hands of the Grantor himself Crook If the Grantor had granted reversion to a stranger and the surrender had been to him It was clear that the suspension had been for the term Hutton If a man seised of a rent in Fee takes a Lease of Lands out of which c. for years and dyes the
Rent 5 R. 2. Annuity 21. Debitum Judex non leperat Then when it does not appear that the Action lyes for the 15. s. for the half year and the Iury assessed Damages intirely it is voyd as 10 Rep. 130. Osborns Case And it appears that by his computation of time it is not a year and an half from the time of the Assumpsit made Richardson said That it is not secundum ratum for then he might divide the Rent and no day is limited for the payment of it for if a Lease be made for two years or at will paying annually at Michaelmas 30. s. and the Lease is determined after half of the year although that it be by the Lessee himself he cannot make any Rent But Yelverton said that that is not a Rent but a collaterall sum And debt does not lye for that And in the Declaration it is said Quod permisit ipsum reentrare and does not say what time which was nought by all but Hutton And it ought to be also that he did de facto re-enter Hutton said There being it is said So long as you shall occupy the Land you shall pay annually c. That he may demand half of the year But the whole Court against him and so Pro hoc tempore judgement was stayed Grange and his Wife against Dixon A Lease was made by Baron and Feme and another Feme and the Lessee Covenants by the same Indenture to find sufficient mans meat and horse meat to the Baron and Feme and to the other Feme or to their Servants at their coming to London at his house in Southwark The Baron and Feme dye and the other Feme takes an husband The Opinion of the Iustices was that he was not bound to find sustenance for the husband but only for the wife or for her servants and not for both at one and the same time because the Covenant was in the disjunctive But it was doubted if he shall find them Victualls for one meal only at their coming or for all the time of their staying there Johnson against Williams and Uxor IT wad said If an Obligation be made by a Feme sole and afterwards she takes an husband and an Action of debt be brought upon that Obligation against the Baron and Feme and they deny the Deed the Baron shall be taken for the Fine as well as the wife for the wife had nothing whereof to pay the Fine And so in Trespasse against Baron and Feme dum sola fuit and they are both found guilty both shall be taken for the Fine which the Prothonotaryes agreed Jeakill against Linne IN a Writ of Covenant the Plaintiff counts upon an Indenture of Lease of the Parsonage of Dale by which the Defendant Covenanted to pay him the Rent the which he had not payed And the Defendant said that before any day of payment of the said Rent incurred one A. Ordinary of the same place sequestred the said Parsonage for non payment of the first fruits Iudgement If an Action c. And by the Court that is not a Plea for he does not shew that any Act was done by the Plaintiff himself in his default Nor he does not confesse and avoid the interest of the Lessor as to say that the Lessor was a disseisor and made a Lease to him after that the disseisee re-entred and so he might confesse and avoid the Lease notwithstanding the Deed indented But he cannot say that the Lessor had nothing at the time of the Lease made And if the Defendant had been bound in an Obligation for the payment of the said Rent in debt brought upon that that should not have been a Plea for he had bound himself to pay the said Rent And the occupation is not materiall where the Lease is for years or for life But otherwise of a Lease at will Davies against Fortescue IF a man it was said be seised of a Mannor whereof there are divers Copy-holders admittable for life or for years and he Leases the Mannor to another for term of life the Lessor may make a Demise by Copy in reversion to commence after the death of the first Copy-holders and that is good enough But the custome of some Mannors is to the contrary and that is allowed Doyly an Infants Case A Man seised of Lands makes a Feoffment in Fee by Deed indented rendring a Rent with a clause of Distresse and afterwards he is bound in a Statute and the day is incurred Vpon which an Execution is awarded to the Conusee and upon the Extent the Sheriff returns that the party was dead and that he had extended the said Rent And the heir of the Conusor being within age because the Rent was extended during his nonage brought an Audita querela and Hutton said That it is maintainable enough because there is an Exception in the Writ of Extent That if Land be descended to any Infant that the Sheriff shall surcease to extend And although that Writ issued against the party himself who made the Conisance yet when it appears by the return of the Sheriff that he is dead the Infant shall be aided by an Audita querela or otherwise the Extent shall be void which is made upon the possession of the Infant Jeffryes Case IN a Formedon the Plaintiff counts of a gift to his Father and to his heirs of his body ingendred during the life of I. S. and makes the descent to him during the life of I. S. And Yelverton seemed that the Writ is good enough for a Tayle may be made so determinable as well as a Fee simple And if a man Warrant Lands to the Feoffee and his heirs against him and his heirs during the life of I. S. That he had a Fee simple in the Warranty determinable upon the life of I. S. So here Warberlyes Case IN a Writ De valore maritagii it was moved by Henden If the Lord shall recover his Damages according to the value of the Land held of him only or according to all his Lands held also of others And Hutton and Crook said that the value of the Marriage shall be accounted as well in respect of the lands held of him as of other lands held of other Lords by Posteriority or in Soccage for there the woman by the Marriage to him shall be more advanced And the better the advancement is the better is the Marriage of the heir and the person more to be esteemed Norbery against Watkins ONe Devises the Mannor of S. to two and their heirs betwéen them to be equally divided so that they shall have part and portion alike If by that they have a Ioynt-tenancy or a Tenancy in common was the Question because there was an Act to be done for making the division And if the words had béen equally to be divided by I. S. it had béen clear that they had béen Ioynt-Tenants But Harvey said That upon such a gift made to them if the
one of them dyed before partition yet their heirs should hold severally according to the intent of the Will for otherwise the Surviver should hold place which against the will of the Devisor Northens Case A Man seised of a Mannor having all the Goods of Felons de se within the same Mannor and makes a Lease for years of parcell of the same Mannor to a man and afterwards makes another Lease of the same Lands to commence after the determination surrender or forfeiture of the first Lease The first Lessée was a Felo de se the Lord Lessor of the Mannor enters into the lands Leased as forfeit and the second Lessée ousts him and it séemed to Crook that the Entry was lawfull enough Harvey said That the Lessor to whom the Frank-Tenement belonged entring into the land the Frank-Tenement drowned the lesser Estate and the Lease for years is extinct in the Frank-Tenement And it was said That therefore the first Lease extinguisht But if before that the Lord had aliened the Mannor saving to him the liberty and after had entred for the Forfeiture the second Lessée could not enter for it is not any determination of the first Lease Crook said That if the Lessor infeoffed the first Lessée of the Mannor that is a determination of the first Lease and the second Lessée may enter The Bishop of Winchester against Markham THomas Bishop of Winchester brought an Action upon the Statute of West 1 cap. 4. de scandalis magnatum against Markham for that he preferred a slanderous Bill against him before the President of the Councel surmising that he was a covetous and malicious Bishop And the Opinion of the Court was That the words were sufficient to maintain the Action A man seised of a Mannor held in Chivalry devises two parts of it to two men in severalty and all the Remnant he devises to his heirs in Tayle the remainder over in Fée Hutton said It seems to me that the devise is voyd for the third part to the heir for he might devise the two parts by his Testament and he had done all that he could doe by the Statute and then the devise of the third part is out of the warranty of the Statute for it is not reason that by the limitation of the third part the which he could not doe that the devise of the residue which was one time good shall be defeated which Harvey granted but Crook to the contrary for although the two parts were devised by the premisses of the Testament and the third part in the end of it yet in operation of Law the one part is not before the other but the will is intire and took effect in all its parts at one and the same time by the death of the Devisor By which it seemed for the benefit of him in the remainder that he shall take the third part devised to him for if a man seised of three Acres of land held in Chivalry and devises them severally to three severall persons in Fee the heir shall have the third part of every of the three Acres and not the Acre last devised which Hutton granted So also for the benefit of a third person he ought to be judged in the third part as a Purchaser and not of an Estate by descent and so is the better Opinion in 3 H. 6. But if he had devised the Tenements to his Son in Taile without limitation over of the remainder there he might choose to be in of the Estate limited by the Devise or as heir Hutton I doubt of that for the Book is not agreed 3 H. 6. Wilkinsons Case THe Baron seised of lands makes a Feoffment upon condition to enfeoff him and his wife for life the remainder over to a stranger in Fee Atthow demanded if the Feoffee shall be bound to make the Feoffment before request made by the Baron Hutton and Crook thought that a request ought to be made by the husband And because the particular Estate which is the foundation of the remainder limited to the stranger ought to be made to the husband who is party to the condition and it is his will to take the Estate for life or refuse it and the Feme is at his will But if the Baron dyes then it behooves him to make the Feoffment to the wife without request because she is a stranger to the condition by Act in Law And so where she dyes also before the Feoffment the Estate ought to be made to him to whom the remainder is limited without any request Yelverton But if the condition was to re-enfeoffe the Feoffor and a stranger there it behoves the Feoffee to tender the Feoffment to the stranger for he had not notice of the condition and he ought to be party to all the Estate And by the Livery made to him the Feoffor shall take well enough Waterton against Loadman VVaterton makes a Feoffee to the use of Loadman in Fee to the use of another in Tayle the remainder to his right heirs in Fee Cestui que use in Tayle dyes the first Feoffees enter for to recontinue the use Crook said That when Tenant in Tayle in use makes a Feoffment nothing passes but for his own life For it had been agreed where cestui que use pur vie makes a Feoffment in Fee for it was not a Forfeiture of his Estate because nothing passed but for his life then when the Feoffee dyes during the life of cestui que use in Tayle that cannot be any descent of the Fee but as an Estate for life the which determines by the death of cestui que use in Tayle And all the Iustices were of the same Opinion for the descent was when he had not any Title of entry for by the Feoffment he had a Title during the life of cestui que use in Tayle Wherefore during his life they could not enter nor make continuall claim But if the descent had been after the death of cestui que use in Tayl then otherwise it shall be for they had a Title to enter before the descent and by their laches they are told of that Hutton seemed That the Feoffees cannot enter in that case for they cannot have the same Estate that they had before the alienation of cestui que use in Tayl for by the Feoffment the Estate of the Fee simple which was to their right heirs passes clearly and it is lawfully in the Feoffee Wherefore if they enter to re-continue the use in Tayl where they shall he seised of another Estate where they shall be seised of a Fee simple also and so there shall be two Estate of Fee simple of the same land which is inconvenient But the Iustices said That cestui que use in Tayl had no other remedy unless by the Entry of the Feoffees Harris against Marre A Man seised of certain lands in Fee makes a Feoffment in Fee to his use and afterwards makes his will by which he devises That
the evidence of the party or by others by his procurement in the same manner As it was in an appeal upon a fresh sute at the Common-law It was said by all That although the custome was of Burgage lands in soccage Yet if the Lands came by gift or otherwise to tenure in Chief or service of Chivalry That that now changes not the Custome which alwaies goes with the Land and not with the tenure As the Lands in Gavelkind by the Custome are soccage tenure Yet if they are changed to service of Chivalry the Custome is not altered But that all the heirs shall inherit It was agreed by all That if sir persons compass and imagine to levy war against the King And there is an agreement betwéen them that two shall do such an act in such a Country and the other two another act in such a County And so divers acts by divers in several Counties for to assemble the people against the King And after two do the Act according to their purpose and assemble the people and the other do nothing Yet the Act done by two upon the agreement is Treason in all But otherwise it is if there had been only a compassing c. and not any agreement and afterwards one of them does the act unknowing to the others there it is not Treason but in those that doe the fact and not in the others As it happened in the Case betwéen the King and an other Wilkins against Thomas IT was adjudged upon good advise That if an Infant he impleaded by any precipe of his Lands And loses by defending Now he shall have a Writ of Error And because that he was within age at the time of the Iudgement it shall be reversed And the Infant shall be restored to all that he lost As it happened in the Case of John Ware against Anderson and others in the County of York lost while they were infra aetatem Where it appeared that they appeared by their Guardian admitted to them by the Court to the Grand cape and that they were within age But there was an inspection by Nurses and Friends and they were found not to be within age John Symons against Thomas Symons NOte it was said by all the Iustices That if the Disseisee enter upon the Feoffee or Lessee of the Disseisor That he shall not have an Action of the Trespass for the same Trespass against the Feoffee or Lessee Because that they come in by a Title And at Common law before the Statute of Gloc. No dammages for mean occupation against the Feoffee or Lessee Bromleys Case IF a man steal goods and be arraigned upon an Indictment of felony and the goods are valued to 6 s. and the Iury upon their verdict say That he is guilty of the said goods but that the value was but 6 d. That is a good verdict And the Iustices shall vanish him as for patty Larcenny In the same manner it is If a man be arraigned for willfull murther and the Iury find it but Manslaughter That is a good verdict by all the Iustices Pease against Thompson A Man seised of Lands in see makes a feoffment from that day to divers to the use of his Wife for her life and after to the use of the heirs of the body of the Feoffor The Feme dies and the Feoffor makes a Lease for years and dies Now her Issue shall not avoid that Lease because a man cannot have Heirs in his life So that at the time of the death of the Feme there was none to take by the remainder And for that the Feoffor had the fee the Lease is good and shall bind the Heir As if a Lease be made for life the Remainder to the right Heirs of I. S. and I. S. dies in the life of the Lessee then the remainder is good otherwise not but it shall revert But otherwise it shall be peradventure in such a Case in a demise Hillary 3 Car. Com. Banc. Skore against Randall SKore brought Debt against Randall and recovered and had execution by Elegit and it was found by the Inquisition that the Defendant was seised of the moyety of a Messuage and Lands for life and other Lands in right of his Wife And the Sheriff returns that virtute brevis et deliberat feci meditatem omnium praemissorum cum pertinentiis c. Nec non duo pomaria nec non unum clausum vocat c. And that he had delivered the moyety of the Lands in right of his Wife and his Chattells and recites them and that Elegit was filed And the Question was whether he might have a new Elegit Because that the Sheriff ought to have delivered to him the moyety of the moyetic of the Lands held in Ioint-tenancy So that the Tenent by Elegit might be Tenant in Common for a fourth part with the Ioynt tenants as it was agreed But also by that Delivery he had but in effect the eighth part For the other Ioynt-tenants may occupy the Land delivered with him in Common Richardson said For part of the Lands and goods in right of his Wife the return is good And being filed he cannot have a new Election For if part shall be evicted you cannot have a new Extent upon the Estate But if it had been in the Genitive Case Duorum pomorariorum c. it had been good But it was granted by the Court That the Plaintiff makes a surmise that the Sheriff male se gessit in the Execution of that Elegit and then he may have a new Elegit at his peril c. Edward Thomas against John Morgan et al. EDward Thomas brought an Ejectione firmae against Morgan Kemmis and others and upon Not guilty pleaded a speciall Verdict was given to this effect for Morgan and Kemmis for the other some were dead before issue and the other not guilty and they found a Iudgement dated 12 Sept. 23 Eliz. and deliver'd the 15 Iunii next ensuing Which was between the then Bishop of St. Davids of the one part and Richard Thomas of the other part And it was in consideration of a Marriage to be had between him and the Daughter of the Bishop That before the end of Hillary Term next ensuing he would levy a Fine of all those Lands and all the other lands in Mountmouth and that should be to Thomas Morgan and Roger Sise of Lincoln-Inne And that he suffered a recovery with double voucher to the uses in the Indenture But the words are that the Conusees should stand seised to the use And by Atthowe the Recovery is idle for the uses shall be executed and then there shall be no Tenant to the Precipe viz. That of all the Lands mentioned in the Indenture Morgain and Sise shall stand seised to the only uses hereafter c. that is to say They shall be seised of in part of the Lands and Tenements that is so much thereof as shall amount to the clear value of
not but a liberty given by the Conisee to the Conisor to be at large That does not release the Execution Dolbins Case IN a Replevin the parties were at Issue and the Plaintiff sued a Venire f. c. returnable such a day at which day the Sheriff does not return the Writ Wherefore the Avowant by Ward prayed a Venire fac with a proviso for him And it was granted by the whole Court Fossams Case A Man after the Statute of 27 H. 8. makes a Feoffment in Fee to the use of himself for term of his life and after his decease to the use of I. S. and his Heirs The Feoffor does waste And I. S. brought his Action of Waste And now if his Writ shall be general or special was the Demur in Iudgement And Hutton and the other Iustices were clearly of opinion That the Plaintiff ought to have a special Writ And so it was adjudged afterwards Doswell against Iames. IN Debt brought upon an Obligation Iames shews that the Obligation was endorsed with a Condition to perform all the Covenants comprised in an Indenture and he pleads that all the Covenants were fulfilled And does not shew in certainty the Covenants nor how they were performed And Hitcham said that the Plea was not good For there is a Diversity when one pleads in the Affirmative and when in the Negative For if in the Affirmative he shews in the certainty how the Condition or Covenants were performed And there is no diversity in my opinion between the Conditions which were upon the dorsed Obligation and the Covenants in the Indenture And it is to be thought that he who knows more of the Truth should shew it in his Plea And therefore he who pleads the Affirmative shews how the Conditions are performed Because it lyes much in his knowledge Whether he hath performed them or not But where he pleads in the Negative otherwise it is For there he is not to shew the certainty And yet I will agree that if one brings an Action of Debt upon an Obligation indorsed with a Condition The Defendant may plead the Conditions performed generally But otherwise it is of Covenants in an Indenture And in an Obligation with a Condition endorsed if he pleads the Conditions performed and he shews what thing he hath done If it be in the Affirmative he ought to shew the certainty of it also So that for that cause the Plea will not avayl Also it is incertain and doubtfull to the Iury. For if in that Case we are at Issue upon such a general Plea Although it shall be tryed by the Iury Yet it would be strange to enquire of such general things Wherefore c. Gerrard against Boden AN Annuity was brought by Gerrard against the Parson of B. And the Plaintiff counts That the said Parson granted an Annuity of 40 l. pro bono consilio suo imposter impenso for term of life of the said Parson And for 30 l. of arrerages this Action was brought Finch thought the Count not to be good And first it is to be considered If that Annuity might be assigned and granted over or not And as I think it cannot For an Annuity is not but as a sum of mony to be paid to the Grantee by the Grantor And not at all to the realty if the Land be not charged by express words in the same Deed. And to prove it If a man grant an Annuity to me and my Heirs without naming of my Heirs If the Annuity be denied it is gone Because my Person is only charged with the Annuity and not the Land So if a man grants to you the Stewardship of his Mannor of D. and to your Heirs you cannot grant that over And so of a Bayliwick But peradventure it may be said That an Annuity may be granted over in this Case Because in the Habendum It is said to the Assignees of the Grantee But that is nothing to the purpose as I think For I take a difference when a thing comes in the Habendum of a Deed which declares the Premises of the Deed For there it shall be taken effectuall but otherwise not As if Lands be given to a man and his Heirs habendum sibi haered de corpore suo procreat That is a good tayl But if a thing comes in the Habend which is repugnant to the Premises of the Deed and to the matter of the thing which is given by the Deed Then the Habend is void for that parcel As in the Case at Bar it is meerly contrary to the nature of the Annuity to be assigned over to another And there is no remedy given for it but an Action and it is Common learning that a thing in Action cannot be assigned over unless it be by the grant of the King Also by their Declaration they have acknowledged it to be no more than a chose in action Then a Rent seck for which he had not any other remedy but an Action after Seisin For he said that he was seised in his Demesn as of Franktenement of the Rent aforesaid Then it ought to be a Rent-seck For of no other Rent can a man be seised in his Demesn because they lye in prend As of Advowsons common for years and of Estovers And I will not agree that difference put by Littleton in his Book to this purpose For of such things which lye in manual occupation or receipt A man shall not say that he was seised in his Demesn as of a Rent Because it lyes in the prend Pasc 4 Car. Com. Hanc And in the 21 E. 4. The Case is doubtfull And Crawley of the same opinion Hitcham of the contrary And at another day Hutton said that the parties were agreed Hitcham We desire to have your opinion notwithstanding for our learning Hutton said We are agreed that the Annuity may be granted over and it is not so much in the personalty as hath been argued by Finch And in some Books it is said that a Release of personal Actions is not a Plea in a Writ of Annuity Groves against Osborn THe Case was thus A man makes a Lease for life the Remainder for life upon Condition that if the second Lessee for life dye in the life of the first Lessee That the Remainder in fee shall be to another And it was said That that Remainder might commence upon that Condition well enough It was said by Atthowe That where a Remainder depends upon a determination of another Estate So that none shall take any Estate by the Remainder upon Condition then the Remainder is good As if a man give Lands to A. for life upon Condition that if I. S. pay me 40 s. before such a day That the Remainder shall be to him That is a good Remainder But when an Estate is to be defeated by a Remainder depending upon that Then the Remainder is not good As if I lease Lands for life upon Condition That if the Rent be in
payment of 72 l. And he alleges that the Defendant did not become bound in the Statute but that he himself delivered possession as soon as he could And upon non-assumpsit pleaded it was found for the Plaintiff And Atthowe moved in Arrest of Iudgement It is not a good consideration or promise He said that there was a Colloquium and an Agreement and in Consideration thereof c. That is not a good Consideration And the second Consideration that he delivered c. tam citius quam potuit It is not good for it is uncertain For it may be a year or two years or a day after And the other promise to pay 8 l. in the hundred deferendo diem And there is not any deferring the day for it is not shewn that it is due before and that he shall be bound in a Statute and that no sum is expressed which is uncertain Richardson There is a good Consideration and a good promise There was an Agreement touching the sale of a Banck and an acre of Land and take all alike and that perfects the Agreement And it is plain that the Agreement was for 72 l. and the delivery of the possession or making of assurance is not any Consideration But the promise is all the Consideration And he might have omitted the averment of the delivery of the possession But there is a cross and mutual promise upon which the Action might lye As many times it had been adjudged in this Court and in the Kings Bench. And for the words tam citius quam potuit the Law appoints the time scilicet so soon as he can go remove his goods things out of the House c. As in Case where one sels goods for mony the Vendee shall have for telling the mony And so here at the most till request be made And although it is not expressed in what sum he shall be bound by the Statute Yet it appears that it is for the payment of 72 l. And then the sum ought to be double in which he is bound As if one arbitrate that he pay 72 l. and enters into an Obligation for the payment of it That shall be in the double sum In which Case he said that he could shew several Iudgements of it Crook If one promise to me divers things some of which are certain It is good But also for the time of the delivery there the Law adjudges of that And the sum of the Statute shall be double as it had been said But for the Case of the Arbitrament it is adjudged contrary as 5 Salmons Case And admit that it be uncertain It is a reciprocal Assumpsit and an Action will lye upon that Hutton If a promise to enter into an Obligation there ought to be a reasonable sum as the Case requires for it And in this Case it being in a Statute which is more penal than an Obligation I conceive the same sum of 72 l. will serve And for the time of the delivery of the possession It ought to be in convenient time or upon request As 2 H. 6. And the Law adjudges of the inconveniences of time And although that he fails in the sum of his promises the end of his promise is good enough and the other is not concluded by that Action But he might allege other considerations in actions brought by him Yelverton There is but one promise against another And the sum in the Statute ought to be the same sum As the Case where an Annuity is granted of 20 l. untill the Grantee be advanced to a benefice That ought to be a benefice of the same value But I doubt whether it should be double Harvey It is there by way of promise And then one promise is the consideration of another and there is no breach for it ought to be upon request And then the Action being brought upon that side the request cannot be alleged and one promise good against another Then be the sum what it will ought the Defendant to be bound single or double The Assumpsit not being performed all agreed that the Action well lies A Verdict against an Infant NOte that it was said If a verdict pass against an Infant and the Defendant dies after verdict and it is shewn Iudgement shall not be given against him For the Court does not give Iudgement against a dead man and that is matter apparent and the other is doubtfull matter Fortescue against Jobson A Man seised of certain Lands hath Issue two Sons and devises one part of his Land to the eldest Son and his Heirs and the residue to the youngest Son and his Heirs And if both dye without Issue that then it shall be sold by his Executors and dyes The eldest Son dies without Issue And the opinion of Hutton That the Executors could not sell any part before that both are dead For the youngest Son hath an Estate tayl in Remainder in the part of his eldest Brother So that the Executors cannot sell it And if they do sell it yet that shall not prejudice the younger Brother So long as he hath Heirs of his Body Richardson said That although that the eldest Son aliens and after dies without Issue That the Exâ—…cutors may make sale For that that no interest was given to them But only an Authority to sell the Lands Dicksons Case A Writ de partitione fac against two the one appears and grants the Partition the other makes default Hutton said a Writ shall issue to the Sheriff to make Partition but cesset executio untill the other comes For Partition cannot be by Writ but between the whole Otherwise it is of Partition by agreement Rothwells Case IF a Man makes a Lease for life and the Lessee for life makes a Lease for years And afterwards purchases the reversion and dies within the Term yet the Lease for years is determined And the Heir in reversion may oust him and avoid But if one will make a Lease for years where he had nothing and afterwards purchases the Land and the Lessor dies If that be by Deed indented The Heir shall be estopped to avoid it By Hutton Crook and Richardson Sir Charles Foxes Case THe Case of Sir Charles Fox was now moved again by Henden It was objected that there ought to be an express demand at the day or otherwise he ought not to distreyn But first it appears that he had a good Title to the Rent then there being a verdict found he ought to have Iudgement upon the Statute But not admit that Yet the Demand is good for the words are legitime petit and no time expressed And although the Demand is after the day yet it is sufficient for all the arrerages for the words are tunc et ibidem but c. And the Difference is between the Demand which intitles to the Action and to the thing it self Maunds Case 7 Rep. 20. 40 Eliz. between Stanley and Read Where it was agreed That the day
only upon the Land in possession but also the rights to the same the one in point of Giving The other in point of renouncing The Land in possession could be but in one that is in the Offenders and so it was given but the rights to the same Lands might be in sundry persons in the Offendor or in his Heirs or in Strangers Now when the Statute saith the King shall have the Land without saving the Rights of the Offendors or his Heirs or any claiming to their use Tenant in tayl discontinues and after disseiseth his Discontinuee and is attainted of Treason he forfeits his Estate gained by the Disseisin and also his right of Entayl for he cannot take benefit of his ancient Right against the King by force of the Statute of 26 H. 8. and 32 of H. 8. and this agrees with the reason and the rule in the Marquess of Winchesters Case for if the Traytor have right to a Strangers land that shall not be given to the King for the quiet of the Stranger being Possessor for the quiet of his possesion but such right shall be given to the King being Possessor for the quiet of his possession and the word Hereditament in the Statute 26 H. 8. are both sufficient and fit to carry such right in such Cases and no man will dispute but they are sufficient to save naked rights to the Lands of strangers therfore it is not for the count of words but because it is alleged it was not meant so it was said in Digbies Case and so hath Antiquity expounded it for the good of the Subject against the King and against the letter of the Law But can any man imagine that the Parliament that gave the Land to the King should leave a right in the Traytor in the same Land to defeaf him again of it since the Statute gives the right and the Land and this gives a forfeiture of all rights belonging to the Person attainted of Treason and their Heirs for the benefit of the Kings forfeiture is of so great importance that if it be not taken as large as I take it it is an avoiding of all the Statute even that 33 H. 8. cap. 20. for though they have the word Rights in both Statutes even that of 33. doth not include the right of Action to the Lands of Estrangers by an Equity against the Letter So for this time the Case was abruptly broken off by reason the King had sent for all the Iudges of every Bench. Springall against Tuttersbury IN Springall and Tuttersburies Case It was agreed by the Court If a verdict be given at a nisi prius and the Plaintiff or Defendant die after the beginning of the Term yet Iudgement shall be entred for that relates to the first day of the term Overalls Case ONe Overall was sued in London and for that that he was of the Common Bench a Writ of Privilege issued which is a Supersedeas and staid the Sute wholly and not removed the Cause And if the Plaintiff had cause of Action he ought to sue here And then by the course of the Court a Clark shall not put in bayl Foxes Case THe Lord Keeper in the Star-chamber cited one and Butchers Case to be adjudged 38 Eliz. An Vnder-Sheriff makes his Deputy for all matters except Executions and restrained him from medling with them And it was adjudged a void Exception So if it be agreed and covenanted between them that the Deputy should not meddle with matters of such a value It is a void Covenant And that was agreed by Richardson to be good Law Hil. 5 Car. Com. Banc. Overalls Case IT was agreed at another day in Overalls case by all the Clarks and Prothonotaries of the Court that the Course always was that if an Atturney or Clark be sued here by bill of Privilege he needs not put in bail But if he be sued by original and taken by a Capias as he may be if the Plaintiff wil Then he ought to put in bail quod nota MEmorandum that on Sunday morning in the next term ensuing which was the 24. day of Ianuary Sir Henry Yelverton puisne Iudge of the Common Bench dyed who before had been Attourney general to King Iames and afterwards incurring the displeasure of the King was displaced and censured in the Star-chamber and then he became afterwards a practicer again at the bar from whence he was advanced by King Charls to be a Iudge He was a man of profound knowledge and eloquence and for his life of great integrity and piety and his death was universally bewailed Termino Hill 5 Car. Com. Banc. Honora Cason against the Executor of her Husband HOnora Cason sues Edward Cason Executor of her Husband and declares by bill original in nature of debt pro rationabili parte bonorum in the Court of Mayor and Aldermen of London and alleges the custom of London to be That when the Citizens and Fréemen of London die their goods and chattels above the debts and necessary funeral expences ought to be divided into three parts and that the wife of the testator ought to have the one part and the Executors the second part to discharge Legacies and dispose at their discretion And the children of the Testator male or female which were not sufficiently provided for in the life of the Father to have notwithstanding the Legacies in the will the third part And the custom is that the Plaintiff in this action ought to bring into the Court an inventory and sue before the Mayor and Aldermen And that she had here brought an Inventory which amounted to 18000 l. so that her third part was 6000 l and demanded it of the Executor who unjustly detained c. And it was removed to the Common bench by writ of Privilege And now Hitcham Serjeant moved for a procedendo And the Court séemed to be of the opinion to grant it Because that the custom is that the sute ought to be before the Mayor and Aldermen and then if they retain the action here the custom would be overthrown But they agreed that a rationabile parte bonorum may be remanded here and that they may proceed upon it in this Court And that there be divers presidents to this purpose And they agreed that a rationabile parte bonorum is the original writ by the Common Law and not grounded upon the Statute of Magna Charta But that it does not lie but where such a custom is which custom they ought to extend to all the Province of York beyond Trent Richardson chief Iustice said that in the principal case The Plaintiff in London might have declared without alleging the custom As it is in 2 H. 4. Because that the custom is well known But otherwise Where custom ought to be shewed and where not where an action is upon the custom in a place where the custom does not extend There it ought to be shewn And afterwards at another
years or but for 7 years And it seemed to Hutton that the Lease was confirmed but for 7 years But Richardson was of the contrary opinion and took a difference where they confirm the Estate and where they confirm the Land for 7 years That Confirmation confirms all his Estate But where they confirm the Land for 7 years That Confirmation shall not enure but according to the Confirmation And that difference was agreed by Crook and all the Sergeants at the Bar. And afterwards Hutton said That that was a good Case to be considered and to be moved again Jacobs's Case A Man was indicted at Newgate For that he feloniously vi armis had robbed a man in a certain Kings foot-way leading to London from Highgate And upon that he was arraigned found guilty And having his judgment he prayed his Clergy for that he was a Clark And the Iustices of Gaol delivery doubted if he should have his Clergy or not Because the Statute if any man be taken upon Felony committed on the High way he shall not have his Clergy But the Indictment was in this case that the Felony was done in alta via reg pedestri So that the words are not alta via regia nec in magna via regia nec in via regia For if that word pedestri had been put out of the Indictment he should not have had his Clergy clearly Some of the Iustices were of opinion that that word added in the Indictment made that he should not have his Clergy The Lord chief Baron of the contrary opinion Perkins against Butterfield HItcham moved to the Iustices If one takes Beasts Dammage feasant and impounds them in an House and leaves the Door open So that the Owner may sée them and give them sustenance And afterwards for default of Sustenance they dye in the Pound Whether he who distreyned them shall be charged or not Hutton when one takes Beasts Dammage feasant in his Land It is at his Election if he will impound them in an open place where the Pound is or in some place in his own Land And if he impound them in the common Pound and the Beasts dye the Owner has no remedy But if they be impounded upon the Soyl where they did the Dammage or in the Houses of him who distreyned them and they dye for want of Food In this he who took them shall be charged For the Common Pound is common to all Persons so that they may come to give them food Otherwise in this case For there the Owner cannot have notice where he hath made his Pound Richardson of the same opinion And I believe that the Owner shall have an action upon his Case against the Owner for the recovery of the value of his Cattell For trespass does not lye For the taking of them and the impounding was lawfull And it is reason that he should recover the value of them by an Action For if the Owner had come to have given them food the Terre-tenant would have an action against him Hitcham The taking of them is made a Trespass ab initio when the Beasts dyed in Pound Wimberly against Taylor et alios VVImberly had entred a Plaint in a Court Baron against two jointly for taking of his Goods And the Plaintiff had removed the Plaint by a Recordare joyntly as the Plaint is And now at this time the Plaintiff counts of taking of Goods severally So that it varies from the Plaint and the Recordare also And Ward moved that the Writ might abate And so it was adjudged by Hutton and the Iustices Wilkinsons Case IT was moved at the Bar If a Man makes a Lease for years to I. S. I. N. and I. D. If the aforesaid I. S. c. should so long live And now one of the Lessées is dead If the whole Lease should be determined or not was the Question And Hutton and Harvey said That it was without doubt that the Lease was determined by the death of one of them But if the words had been generally If the Lessées should so long live and had not named them Then perchance it should have béen more doubtfull The Executors of Tomlins's Case ATthowe demanded this Question of the Iustices A Lease is made for years the Lessée grants over his Estate and reserves to him and his Heirs during the term a certain Rent If the Executors or the Heir of the heir shall have that Rent And it séems to me that it shall enure to the heir well enough As a Grant made by the Grantee of the estate of the same Rent So the Heir shall take by the Grant Harvy May the Heir take Chattel as Heir to his Father And this Rent is but a Chattel And in the Book of Assise there is a Case where Lands are given to I. S. et uni haeredi suo et uni haeredi ipsius haeredis tantum And that was taken to be no Fee-simple Nor no such Estate that the Heir might claim as Heir to his Father But I am in doubt of your Case truly For which I will advise Hitcham Vpon that I have seen a Diversity Where Lands are given to I. S. et haeredi suo et haeredi haeredis I. S. In that Case he shall have a Fée-simple Otherwise it is where Lands are given to I. S. et haeredi suo There no Fee-simple passes Richardson There no Fee-simple passes in any of the Cases And it was said in the Argument That Lessee shall not have Trespass vi et armis against his Lessor Whiddon's Case A Man devises by his Testament to his Daughrer Jane all his Land in D. habendum sibi et haered de corpore suo legitime proc And by the same Testament he devises to his Daughter Anne all his Land in the tenure of I. S. in the County of Hertford Whereas in truth D. was in the County of Hertford and parcel of the Lands were in the tenure of I. S. Whether Jane shall have the Lands in D. in the tenure of I. S. by the first words Or Anne shall have them by the last words Harvey The Testator had given them by his first words to Jane Wherefore he cannot revoke his Gift and give it afterwards to another Daughter But all the Iustices were of the contrary opinion A Case of Executors IF Executors come to the Ordinary for to prove the Will He ought to prove it ex communi jure And that he may do without great examination of the Witnesses But if other Executors come afterwards to prove a later Will Then the Ordinary ought to be circumspect in the probation of that Will and to do it by proofs For that is de mero Jure And it is the better and of more effect by Atthowe Challoner against Ware A Man makes a Lease for years reserving a certain rent payable at the Feast of St. Michael And for default of payment at the said day and by the space of 40 daies after That
Iurisdiction of this Court it ought not to be received without Oath c. But if in Covenant or debt for money to be paid at another place he pleads payment accordingly or the Covenants performed in the place limited which was out of the Iurisdiction it ought to be received without Oath quod not Double delay BY the course of the Court double delay cannot be allowed as if the Defendant in debt plead that the Plaintiff is a Recusant convicted and had a special imparlance afterwards the Plaintiff conforms The Defendant cannot plead Outlawry in the Plaintiff Iohn Felton's Case MEmorand quod Thursday 29 die Novembr 1628. Iohn Felton was arraigned in the Kings Bench for the murther of George Duke of Buckingham And the Iustices of the Common Bench demanded of the Serjeants of the King who were present in the Kings Bench what was done with Felton And Ashley answered That he had confessed the fact and that the ordinary sentence of death was given against him But they marvelled that for so notorious offence the sentence was not that he should be hanged in chains Yelverton That any other sentence than the ordinary sentence cannot be given But after that he is dead his body was at the disposition of the King which was not denyed by the other Iustices Turner against Hodges TUrner brought Trespasse quare clausum fregit against Hodges The Defendant said that loco in quo c. is Copyhold and that the Lord Dudley is seised of the Mannor of Sedgley and granted the Copyhold in Fee to Roger Turner and he makes a Lease to the Defendant Hodges for a year The Plaintiff replies that there is custom within that Mannor If a Copyholder makes a lease without licence of the Lord for a year and dies within the term it shall be void against the heir And upon the issue of Nul tiel record it was found for the Plaintiff And Atthowe prayed Iudgement and shews that the custom is good and not contrary to reason 4 rep 26. It was resolved that lessee of a Copyhold without licence for a year may maintain an Eject firm for his term is warranted by the Law by force of the general custom of the Realm But that ought to be intended by the custom within every Mannor within the Realm Whatsoever a Copiholder does is by Custom The Case here is that it shall be void by the death of the Lessor which is an Act of God That was that if Copiholder made a Lease for years and afterwards aliens that to be void against the Alienee would be unreasonable 39 Eliz. There was a Case referred to the Iudges out of Chancery which was debated in Sergeants Inne Littleton 59 b. Armesstrong Lord of a Mannor prescribes that a Copiholder upon the change of every Lord should pay a Fine But by all the Iudges it was ruled a void Custom For the Lord might change his Mannor every day But if it had béen That after the death of the Lord he should have a Fine That is a good custom For it is the act of God So in our Case the custom is void against his Heir which is by the act of God In some Cases a custom alters the nature of a Free-hold land 5 Rep. 84. Perrymans Case A Feoffment shall not be good untill it be presented in the Court of the Mannor a good custom If a free-hold estate may be controlled by a custom a multo fortiori a Copi-hold estate Barkley argued on the other side Although it be found for the Plaintiff Yet if the custome be void a void custome is no custome And for that it is said in the Earl of Lecesters case That a void custome cannot be confirmed by Act of Parliament And that is a void custome We ought to consider the nature of a Copyhold Inheritance By the Common law it is but an Estate at will But the Common law so takes notice to establish it by a custome That there may be possessio Fratris of it and he may have Trespass against his Lord. If Tenant at will be out-lawed his Estate is determined But Copyhold is not determined or forfeited by Out-lawry As it was adjudged 44 Eliz. So that the Law takes notice of it as of an other Estate of Inheritance Where an Heir after his death may enter as Heir at Common law and have Trespass because that it descends At Common law he had power to make a Lease for a year For it is not the custome of the Mannor that he may make such a Lease For then it is pleaded If a Copiholder makes a Lease for divers years without alleging a custome or Licence of the Lord he cannot maintain an Ejectione firm against his Lord but perhaps against a Stranger It may be then if it be the very Law if he may make a Lease for one year if this custome be good It will be contrary to the very liberty of the Estate 19 Eliz. Dyer Solomons Case Custom that Tenant in Fee-simple shall not make a Lease for more than 5 years is void So Littleton says That a Condition that the Feoffee should not alien was void And a Condition that Tenant in tayl should not suffer a Common recovery is void Because that it restrains that Liberty which is annexed to the Estate And for the difference between the Father and the Heir in our Case there is not any difference For the Heir is all one with Father and in loco patris For he might have Trespass by discent of a Copihold Sir William Herberts Case And then if the Father shall be bound by the Lease so shall the Heir Richardson said That Iudgement ought to be given for the Plaintiff Copihold as it is created by Custome so in all it is guided by Custome For at the Common law a Copiholder could not make a Lease for a year But because that it is a general custome of all Mannors in England For it is not but a meer Estate at will by the Common law Then this custome is not against the Liberty of the Estate For a Custome inables that the Lease and a Custome ought to destroy it upon a Contingency as here by the death of the Father For that the Lord may know his Tenant And therefore the Case is reasonable and not to be compared to the case of a Freehold in Dyer A Freehold may be restrained by Custom And yet a Freeholder may be restrained by custome As antient demesn which he passes by the delivery of a Turf or a pair of Gloves and it is not convenient for it is at the peril of him who takes the Lease Copyholder makes a Lease for a year But if he dye within the year his Heir within age it shall be void against the Lord. So that the Lord during the nonage shall have the Copihold to hold for his Services is a good Custome And so in our Case Hutton agreed That at the Common law it might be restrained by custome
who was censured for Adultery with the wife of Stock and censured as here And an House was broken to apprehend and a Prohibition was afterwards granted for that that nullus liber homâ— c. ought to be imprisoned c. without lawfull proceedings Secondly 23 H. 1. 8. appears the particular course of proceeding in Spiritual causes Richardson The first part of the sentence is not part of the punishment But that she shall be taken untill she gave security c. And it is not but agreeable to the Ecclesiastical course For if she be taken by a Writ de excommunicat capiendo and then to perform the sentence or make agreement for the second part It is express within their power Brampstone said she is a feme Covert and part of the sentence is impossible scil that she should pay the Fine and then by that means the imprisonment would be perpetual Yelverton They cannot imprison without bayl Their Commission does not give them such power And at another day Richardson said That it was out of the High Commission and the Fine estreated For that now no Prohibition may be granted c. Smith et al. against Pannel SMith et alioc Church wardens of Bignel in Essex presented to the Arch-deacon that one Pannel was a Rayler and a sower of Discord amongst his Neighbours Whereupon the Arch-deacon inioyned him purgation et sur motion the Court granted a Prohibition for this Case belongs more perhaps to the Leet than to the Spiritual Court unless the rayling were in the Church or any waies tending to the Ecclesiastical rights Wats against Conisby ELizabeth Wats Wife of Edward Wats libelled in the Spiritual Court against Iane Conisby for a legacy of 100 l. the Defendant pleaded a Release of Wats the Husband after mariage and there were no Witnesses to the release to prove the same in regard they were dead and therfore it was not allowed but upon averment of the party that there were Witnesses that could prove the Release to be the hand of the party and that had heard the party confess so much that he had subscribed to the Release Prohibition was granted concerning this averment Lashes Case IOhn Lash brought to the Bar by a Habeas corpus cum causa directed to the Mair Aldermen and Sheriffs of London who certified the cause as followeth That there hath been a Court of Orphans time out of mind in London and that the custome hath been that if any Freeman or Free-women die leaving Orphans within age unmaried that they have had the custody of their Bodies and Goods And that the Executors or Administrators have used to exhibite true Inventories before them and for the Debts due to the deceased to become bound to the Chamberlane to the use of the Orphans in a reasonable sum to make a true account upon Oath of them after they be received And if they refuse to become bound to commit them till they become bound and then sheweth that one Joan Cather Widow being a Free woman-Fishmonger died leaving divers Orphans and that Iohn Lash was Administrator and had exhibited an Inventory of 1000 l. debt unreceived and was required by this Court to give bond in 1000 who refused per quod And it was alleged for the Prisoner by Sergeant Atthowe that he was already bound in the Ecclesiastical Court to make account and so he should be twice bound also he was inform'd that there was no such custom for Widdows of Freemen But the Court resolved that they could not examine the truth of the custom but the validity of it and they held it reasonable if it were true which is returned but if the Ecclesiastical Court would impugn a lawfull custom the Court would grant a Prohibition Scot against Wall SCot moved to have a Prohibition that whereas he had 20 acres of wheat and had set out the tenth part for tithe the Defendant pretending that there was a custom of tithing that the Owner should have 54 Sheaves and the Parson 5 and so he sued for tithes for that there was no such custom for the Court said that the modus decimandi must be sued for as well in the Ecclesiastical Court as for the tith it self and if it be allowed between the parties they shall proceed there but if the custom be denyed it must be tryed at the Common law and if it be found for a custom consultation must be granted if not then the Prohibition is to stand Farmer against Sherman IOhn Farmer brought Prohibition and the Case was thus And Abbot having a Privilege to be discharged of tithes quam diu manibus propriis c. in the time of E. 4. made a gift in tayl 31 H. 8. the Abby was dissolved question whether upon the clause of discharge of tithes within the Statute of Monasteries the Donee and his Heirs should be discharged and held that he should not for that Statute dischargeth none but as the Abbot was discharged in the time of the dissolution so that they must claim the Estate and discharge under the Abbot but if by a common recovery the reversion had been barred before or after the Statute it had been otherwise Napper against Steward NApper against Steward the Parson had a Prohibition against divers of his Parishioners that libelled in the Spiritual Court to make proof by Witnesses of divers manner of tithing in perpetuam rei memoriam Hide against Ellis A Prohibition for Hide against Ellis farmor of the rectory of Stanfield in Com. Berks prescribed that all tenants and occupyers of meadow had used to cut the grass to strow it abroad called Tetting then gathered it into wind-rows and then put it into grass-cocks in equal parts without any fraud to set out the tenth cock great or small to the Parson in full satisfaction as well of the first as of the latter math Vpon traverse of the custom it was found for the Plaintiff exception was taken that the custom was void because it imports no more than what every Owner ought to do and so no recompence for the 2 maths But the Court gave Iudgement for the Plaintiff for dismes naturally are but the tenth of the Revenew of any ground and not of any labour or industry where it may be divided as in gross it may though not in corn and in divers places they set out the tenth acre of Wood standing and so of grass and the Iury having found out his form of tithing there it is sufficient and the like Iudgment upon the like custom in the Kings Bench Pasc 2 lac rot 191 or 192. inter Hall Symonds Int. Hil. 2 Car. rot 2445. Bells Case AN action of Debt was brought by Bell upon an Obligation against one as heir of the Obligor scil Brother and Heir And the Defendant pleads riens per discent from the Obligor And upon that issue there was a speciall verdict found that the Obligor seised of Lands which descended to his Son
W. who died seised of the Lands which descended to his Vncle who was the Defendant Crawley Two things are required to maintain the action Whether the Defendant be heir Secondly who held lands by descent from the Obligor now is heir at Common law And now the heir by the Mannor shall be charged in debt as well as the Heir at Common law Dyer 228. All Brothers in Gavelkind shall be charged 11 H. 7. 12. The heir of the party of the mother shall be charged and so shall Bastardeign 4 E. 3. 14. Heir by Borrough-English And in this Case R. is not heir but by the Mannor Yet he shall be charged 32 Eliz. Dyer 368. by 4 the Iustices And the Defendant here had Lands by descent from the Obligor by which he shall be charged which was agreed by the whole Court But by Richardson It is not sufficient that he be heir in Blood and heir by the Mannor But he ought to have also Land to him by descent from the Obligor But here the Plea is that the Land descended to him immediately And for that you ought to have pleaded that the Obligor died and Lands descended to W. his Son and Heir who died without issue seised of the said Land which descended to R. his Vncle as Brother and heir to the Obligor Quod fuit concessum per totam Curiam Grays Case HEnden shewed cause that a prohibition should not be granted to the Ecclesiastical Court where the case was That one Brother had taken administration and the other would have distribution of the goods of the intestate And said that issues might enforce distribution of it And it is grounded upon Magna Charta cap. 18. Where there is a saving to the wife and the issues their reasonable part And upon the same reason that there may be a division between the issues so there may be between the Brothers but more remote degrees have no distribution And it is hard that one Brother shall have the whole estate and the others nothing And the Ordinary here is the most indifferent man to make distribution Hutton if the eldest son had lands descended to him and the youngest took Administration It is reason that the eldest shall have distribution And by him and Harvey a Writ de rationabile parte bonorum lies only where there is a custom And they said if it should be admitted that the Ordinary should distribute to the Brothers by the same reason he may to more remote degrees And he declared their opinions that many terms before they were against those distributions But they said That now the Ordinary would have an Obligation before they granted a Prohibition and they coloured their Obligation with the Statute of 31 E. 3. cap. 11. That an Administrator shall be count able to the Ordinary And Harvey said that be knew where a man that was rich died and the Ordinary had 600 l. to pious uses before he would grant administration But he said that in the time of Sir Iohn Bennet such an Obligation was questioned and they would not endure the tryal of it Hutton said that now for that that they could not distribute they might invent a new way scil divide the Administration As if the Estate be 400 l. they might grant Administration of the Goods of the value of 100 l. to the other But by him and Harvey That is illegally granted Doctor Wood and Greenwoods Case DOctor Wood libels against Greenwood in the Ecclesiastical Court for tithes of Wool Wood and Apples c. And he shews that he was Vicar there and that the 8 E. 1. there was a composition that the Parson should have the tithes of Grain and Hay praeterea the Viccar should have Alteraginum And for that that those tithes did not belong to the Viccar he prayed a prohibition And Henden objected that the Parishioner ought to set forth his tith and not dispute the Title of the Parson or Viccar But the Viccar ought to come in the Spiritual Court pro interesse suo but notwithstanding that and notwithstanding the Viccar refuses to claim those tithes that always within memory they have been paid to the Parson yet a prohibition was granted And in the end upon this Composition power is reserved to th◠Ordinary if any doubt or obscurity be in the composition to expound or determine it And if he please to encrease the part of the Viccar And there was not power of diminution As by Hutton It is also usual in such compositions And they say that the word Alteraginum shal be expounded according to the use As if wood had always been paid to the Viccar by vertue of this word so it shall continue otherwise if not And so it had been ruled in the Eschequer And upon that president it was ruled accordingly in this Court And by them wood is minuta decima as in the case of St. Albans it was ruled Sir Richard Dorrel against Blagrave SIr Richard Dorrell was Plaintiff in action of debt upon an Obligation of 400 l. against Blagrave who demanded oyer of the condition which was that if Blagrave fulfilled and kept all Covenants and agreements in an Indenture c. between him and the Plaintiff which on his part is to be performed and kept Then the Defendant pleads that he had performed all the Covenants on his part to be performed c. And the Plaintiff shews that Blagrave the elder by his Indenture granted a rent of 20 l. per annum to one that he intended to marry for her joynture which was to commence after his death And that it was out of all his lands in Watchfield And afterwards by the same Indenture he Covenants that he was seised of a good and perfect estate in Fee simple of lands and tenements in Watchfield to the value of 40 l. per annum And he assigns for breach that Blagrave was not seised of an Estate in Fée of the lands and tenements aforesaid in Watchfield Whereupon the Defendant demurred And Heidley moved two questions First that admitting the breach here well assigned yet the obligation is not forfeited And then when the Defendant is bound that he perform all Covenants on his part to be performed and not to the Covenants broken As if Lessee for years rendring a rent at Michaelmas and the Annunciation covenant to pay the rent at a day and afterwards he fail and then a Stranger is bound that he perform all Covenants c. That extends to the failer of payment which is past here in our case And by the whole Court not allowed For by such means all assurances of England should be deluded And now in this case the Indenture and the Obligation shall be sealed and delivered at the same time But if the Obligation had been sealed afterwards at another day yet it was allowed For by Richardson Suppose that the Condition of the Obligation recites the grant c. And the condition is that if the land
Hill 4 Car. Com. Banc. that is a good Grant and charges the Heir although it first commenced upon him Yelverton said he charges himself And the Grant is for him and his heirs And warranty which is so granted to commence 40 years after although the Father dye before the commencement of it yet it binds the Heir And so it is of an Obligation to be paid 40 years after Quod concessum fuit Beckrows Case IN one Beckrows Case in evidence to the Iury c. Beckrows intending to a mary a Widdow makes a conveyance by Deed of Feoffment of his Land to several uses by which he setled his Land upon the issue of the Feme having issue by a former wife But after the mariage he by much importunity procured the Déed of conveyance into his hands out of the custody of the Wife and also an Obligation which makes mention of it and it was for performance of Covenants and then he cancelled the Deed and the Obligation and took off the seal from them And afterwards settles his Land upon his former Children and dies having Issue by his last wife And in actions under these conveyances It was permitted by the Court that the cancelled Deed should be read in evidence But first there should be Testimony given of the truth of that practice before it should be read c. A Copiholders Case IT was said by Richardson to Harvey privately That there is almost no Copyhold in England but the Fine in truth is uncertain For if the Rolls make it appear that some time a lesser and sometime a greater sum had been paid for a Fine that is an uncertain Fine And he said that he was of Councel in a Case where the Iury found that the Fine was certain And afterwards by Bill in Chancery It was decreed upon search of the Rolls to be a Fine incertain And that is now the ordinary course scil by decree in Chancery Francis Bill against Sir Arthur Lake FRancis Bill was Plaintiff in an Assumpsit against Sir Arthur Lake who assumed to the Plaintiff that in consideration that he would make for his wife certain apparel and prepare stuff and lace for it That he would pay for the stuff and making as much as should be required And he shews that he provided Sattin and Gold-lace and made the Apparel and shews of what value the Stuff was and what he deserved for his labour which amounted to the value of 39 l. and that he required the Defendant such a day to pay him which was within six years before the action brought but the promise was laid to be 7 years before The Defendant pleads the Statute of Limitations and that the Plaintiff did not bring his Action within the six years after the promise made nor within the 3 years after the Parliament ended But he does not shew when it ended Vpon which there was a Demurrer And by the Court the ending of the Parliament néeds not to be shewn here For the Question is not upon the 3 years after the ending of the Parliament but upon the matter in Law whether an Action ought to be brought within six years after the promise or after the request Richardson said That it ought to be within six years after the promise Here are two causes of Action for the words of the Statute are within six yenrs afcer the cause of Action the promise and the request and the promise is the principal Trin. 5 Car. Com. Banc. and the Action took its denomination from that scil an action of the Case upon an Assumpsit And if there be a demand which is the case of Action Here it will be answered the promise for a Request without promise is no cause of Action And the mischief that the Statute intended to remedy was that a man was should not be put to the proof of the matter de facto so long time after And if the request is said to be the cause of Action the promise may be laid 20 years before and although that may be proved But the other 3 Iustices were against him and said That the intention of the Statute is within 6 years after the cause of the Sute given which is not untill after request As if one promised to another so much when he should mary his Daughter The 6 years there shall be after the mariage Or if one promise such a sum to one at his return from Rome or such a place from whence it is not impossible to return within six years The payment shall be after the return and there is not a cause of Action before and also the promise and the Request are intire For the request is part of the promise and the promise is not intire untill the request They agréed if a man makes a request and suffer the 6th year to pass before an action brought and then makes a new request And this Case was more strong because the consideration was future Heidley said there was a difference where the request is necessary and where it is alleged but for form As if I sell a Horse for 10 l. generally and after the 6 years brought an Action upon the Case upon an Assumpsit against the Vendee and shews in his Declaration that he was to be paid when he would require it licet saepius requisit c. within the six years Here the Plaintiff is barred For it was due by the contract and the request is but formal If a man brings an Action within the 6 years and afterwards is non-suted for want of request shewen where it was necessary and makes a new request after the 6 years and brings his Action It is good Which was granted by the Court. And in this Case the Court taxed Henden for advising the Defendant to plead the Statute and hazard it upon Demurrer When he might have tryed first the matter in fact But Henden said it was dangerous not to plead the Statute For the opinion of the Kings Bench and Exchequer seemed to be that it ought to be pleaded By the Court when it is apparent within the Record that the Action is brought after the 6 years certainly they doubted not but the Statute ought to be shewn in arrest of Iudgement But the doubt is when a general issue is pleaded in an Assumpsit or Trespass and it does not appear in the Trespass or Assumpsit that it was above the six years the Statute now may be given evidence Trin. 5 Car. Com. Banc. Starkey against Taylor STarkey an Attorny of the Common Bench brought an Action against Taylor for slanderous words and declares that he being an Attorney of the Common Bench of honest fame c. and that he gained much by that profession which was his Livelihood the Defendant maliciously and to hinder him in his profession spoke these words of him Thou art a Common Barrettor thou art a Iudas and a Promoter and a Destroyer and a Viper and a Villain and
But by the Court it is after verdict For the Original for part cannot be applyed to this Declaration and it shall not be taken as the Original for it And then there is no Original which is aided by the Statute and so it had been frequently ruled By Harvey it was one Blackwells Case here where the Writ was bona catalla cepit and the Declaration was viz. unicum discum plumbi And that was ruled to be no Original The Wife of Cloborn against her Husband THe Wife complains against her Husband in the Spiritual Court Causa saevitiae For that he gave her a box on the ear and spat in her face and whirled her about and called her damned whore Which was not by Libel but by verbal accusation after reduced to writing The Husband denies it the Court ordered the Husband to give to his Wife 4 l. every week pro expensis litis and Alimony Barkley and Henden moved for a Prohibition The Sute is originally Causa saevitiae and as a Case that they assesse Alimony And now for a ground of a Prohibition It was said that Cloborn chastised his wife for a reasonable Cause by the Law of the Land as he might which they denyed and said that they had Iurisdiction in these matters de saevitia c. And afterwards that the wife departed and that they were reconciled again And then that reconciliation took away that saevitia before as reconciliation after elopement Richardson It was said here that the Sute was now held and without Libel but that is no ground of a Prohibition for he proceeded upon that matter reduced in Articles and we cannot grant a Prohibition if they proceed to their form For we are not Iudges of their form But if they will deny a Copy of the libell a Prohibition lies by the Statute And you you 'l say that an Husband may give reasonable chastisement to his Wife and we have nothing to do with it But only that the Husband may be bound to his good behaviour by the Common law And the sentence in causa saevitiae is a mensa thoro and we cannot examine what is Cruelty and what not And certainly the matter alleged is Cruelty For spitting in the face is punishable by the Star-chamber But if Mr. Cloborn had pleaded a Iustification and set forth a Provocation to him by the wife to give her reasonable castigation Then there would be some colour of a Prohibition Henden We have made such an Obligation as it is absolutely refused Hutton Perhaps he is in contempc and then they will not admit any Plea As if one be out-lawed at Common law be cannot bring an Action But the Plaintiff they advised to tender a Iustification and if they refused it then to move for a Prohibition Bachus and Hiltons Case HUtton cited one Bachus and Hiltons Case in the Kings Bench Where a Bill was of Lands 17 Maii and the Declaration 20 Mail which was after and so the Original before the trespass and after verdict Because it was mistaken Iudgement was stayed Mortimores Case AMhurst desired the opinion of the Court in this Case Copiholder is ousted and so the Lord disseised and the Copiholder releases all his right to the Disseisor and dies his Heir enters and brings trespass against the Disseisor who pleads his Franktenement And by the Court the Release is clearly void the Disseisor never being admitted Copiholder But they ought not to teach him how to plead And Hitcham cited a Case in which he was of Councel Two Copiholders in fee the one release to the other by Deed. And that was adjudged a good Release which was now also agreed by the Court. Earl of Mulgrave Ratcliffes Case Intratur Exchequer Chamber 18 Iac. Rot. Argued by Sergeant Atthowe D' e Mercurii post festum Sanctae Margaret 17 Edwardi 2d Iohn de Malo lacu gave to Peter de Malo lacu and the Heirs of his body the Castle and Mannor of Mulgrave by divers mean conveiances the Land came to Sr. Ralph Bigod 11 Ian. 6 H. 8. Sr. Ralph Bigot made a Feoffment to William Euer and others to the use of his last Will and died and the right of the Land together with the Entayl and the use also after the Will performed descended to Sr. Francis Bigot 10 Dec. 28 H. 8. Sir Francis Bigod made a Feoffment to Iohn and others to the use of himself and Katherine his wife and the Heirs of their bodies and they had issue Ralph Bigod and Dorothy then the Statute 16 H. 8. cap. 13. for forfeiture for treason is made and 26 Maii 29 H. 8. Sir Francis Bigod was attainted of Treason committed 7 Ian. 28 H. 8. and was executed and Katherine survived H. 8. by the special act of attainder of Sir Francis Bigod and his forfeiture is made 4 Novem. E. 6. Ralph Bigod Son of Katherine and Sir Francis was restored in blood and died without issue Dorothy maried Boger Ratcliff and they had Issue Francis Ratcliff 5 Octob. 8 Eliz. Katherine died and Francis Ratcliff died having issue Roger Ratcliff 1 Febr. 34 Eliz. Francis Ratcliff Roger Ratcliff entred 11 Aug. 33 Eliz. Office found for the Quéen 28 April 34 Eliz. The Quéen by Letters Patents granted the same to Edward Lord Sheffield and the Heirs males of his body begotten at the rate of 9. 18. 3 d. Roger Ratcliff upon the whole matter sued his Monstrare de droit in the Exchequer and had Iudgement for him and Writ of Error being brought by the Lord Sheffield to reverse the Iudgement formerly given in the Case Points 2. First whether Francis Bigod who had Estate in special tayl in possession had also any right in the antient entayl left in him at the time of his Attainder or whether it were not in abeiance in respect of the Feoffment made 21 H. 8. and whether that right did accew unto the King by the Attainder of Francis and the general Statute of 26 H. 8. cap. 13. or by the particular act of Attainder of 31 H. 8. and I am of opinion that there was a right of the old entayl remaining in him and that the King ought to have it together with that estate in special entayl in possession freed and discharged thereof as long as the Estate entayl endured In the handling of this point I shall occasionally speak of rights of Actions real given or not given to the King upon Attainder of Treason by force of Statute 26 of H. 8. or of the general Statute of 33 H. 8. for this Statute is so near of kin to that conservation of antient Rights that we must foresee that we do not in the Iudgement of this Cause prejudice the Statute ex aliqua Secondly Whether there be a Remitter in the Case after Attainder of Treason and if there be such a Remitter here when the Remitter begins and in whom whereas nothing hath as yet been distinctly said I am of opinion that there