made a Feoffment to the use of himself for life the remainder in tail to I. S. He in the remainder Levied a Fine And the Counsel of the Marches upon a surmise That the Tenant for life died seised according to their Instructions would settle the possession upon the heir of Tenant for life against the Conusee For their Instructions were made That where a man had the possession by the space of three years that the same should be settled upon him until trial at Law were had But the whole Court was against it because it doth appear that he had but an estate for life and so the possession appertained to him in the remainder And here it was said by Justice Barckley that their Opinion hath been That the possession of Tenant for life should be the possession of him in the Remainder as to this purpose Note that the Principal case here was although the Case before put was also agreed for Law thus Tenant in Tail levied a Fine to the use of himself for Life the remainder in Fee to I. S. and died In that Case the Council in the Marches would settle the possession upon the heir of Tenant in tail against the Purchaser who held in by the Fine which had bar'd the estate tail by which the Issue claimed and the whole Court was against it for which cause a Prohibition was granted 80. Habeas corpora was directed to the Porter of Ludlore to bring the bodies of Iohn Shielde and William Shielde into the Kings Bench the case shortly as appears upon the retorn was this Powell the Father brought a Bill in the nature of an Information against the said Iohn and William Shield before the Council of the Marches in Wales for an unlawful Practice Combination and Procurement of a clandestine Marriage in the night betwixt Mary Shield a Maid-servant and the Son of Powell who was a Gentleman of good credit and worth the Parson also being Drunk as he himself sware and the same also being without Banes or Licence for which offence they were severally Fined to the King and an hundred Marks damages given to the Plaintiff and farther ordered by the Council that they should be imprisoned till they paid their several fines to the King and damages to the Party and found Sureties to be bound in Recognisance for their good behaviour for one year and till they knew the farther Order of the Council and these were the causes which were retorned And upon this retorn Glynn who was of Counsel with the Prisoners moved many things and many of them as was conceived by the Court altogether impertinent But the Objections which were pertinent were these First That the Councel of the Marches as this case is have no Jurisdiction because the clandestine Marriage is a thing meerly Spiritual and therefore not within their instructions The second was That they have exceeded their Instructions in that they have given damages to the party above fifty pounds For by their Instructions they ought not to hold Plea where the Principal or Damages exceed fifty pounds But as to the first he said there may be this Objection That they did not punish them for the clandeâ—â—inâ— Marriagâ— which in truth is a thing meerly Spiritual but for the unlawful Practise and Combination and for the execution of it To which he answered That they have not Juristiction of the Principal and therefore not of the Accessory here note that it was afterwards said by Bramston Chief Justice That the unlawful Practise and Combination was the Principal and the clandestine Marriage but the Accessory which was not contradicted by any Farther it was objected by Glynn That they were Imprisoned for the damages of the Plaintiff and it doth not appear whether it was at the Prayer of the Party as he ought by the Law Bankes the Kings Atturny-General contrary And as to the first Their Instructions give them power to hold Plea of unlawful Practises and Assemblies And this is an unlawful Practise and Assembly and therefore within their Instructions And although that Heresie and clandestine Marriage and such offences per se are not within their Instructions yet being clad with such unlawful circumstances and practises they are punishable by them As to the second he said The Instruction which restraineth them that they do not hold Plea above fifty pounds is only in civil Actions at the several suit of the party But there is another Instruction which gives them power where the cause is criminal to assess damages according to the quality of the Offence and at their discretions As to the third Objection he said That the Retorn being that they were in execution for the damages it ought to be meant at the Prayer of the Party otherwise it could not be For which causes he prayed thâ—â— the Prisoners might be remanded And the whole Court Crooke being absent were clear upon this Retorn That they should be remanded because it appeareth that their Fines to the King were not payed And therefore although that the other matters had been adjudged for them yet they ought to be remanded for that one And as to the Objections which were made the Court agreed with Mr. Attorney except in the point of Damages and for the same reasons given by him But as to the point of the Damages whether they have gone beyond their Instructions and so exceeded their power in giving above fifty pounds damages or not It seemed to the Court they had and as it seemed to them if the Retorn had been That the Kings Fines were paid it would have been hard to maintain that the assessing above fifty pounds damages was not out of their Instructions but because the Kings Fines were not paid they were Remanded without respect had thereunto for the reasons given before 81. It was said by the Court That when Judgment is given in this Court against another and Execution upon it and the Sheriff levieth the mony the Lord Keeper cannot order that the mony shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it for notwithstanding such Order he may call for it And it was farther said by the Court That an Attachment shall not be granted against the High Sheriff for the contempt of his Bayliffs And a Writ of Error is a Supersedeas to an Execution but then there ought to be notice given to the Sheriff otherwise if he notwithstanding serve the Execution he shall not run in contempt for which an Attachment shall be granted 82. Serjeant Callis came into Court and moved this case Chapman against Chapman in Trespass done in Lands within the Dutchy of Cornwal which were Borough-English where the custome was that if there were an estate in Fee in those Lands that they should go to the younger Son according tthe custome but if in Tail the should descend to the Heir at Common Law And it was moved by him that the custom was not good because it cannot
of peace are coram non judice 27. pl. 63. Presentments taken in an Hundred-Court are coram non judice 75 pl. 115. Corporation Churchwardens in London are a Corporation and may purchase Lands to the benefit of the Church but Churchwardens in the Country though a Corporation are capable onely to purchase Goods to the benefit of the Church 67. pl. 104. Covenant A man makes a Lease and that the Lessee shall have conveniens lignâ—m non succidend ' vendeâ—d ' arbores the Lessee cuts down Trees the Lessor may bring an Action of Covenant 9. pl. 22. Lessee of a house Covenants to repair it with convenient necessary and teneatable Râ—parations in Covenant the Lesser alleadgeth a breach in not repairing for want of Tyles and daubing with Morter and doth not shew that it was not tenentable therefore nought 17. pl. 39. A man by Deed conveys Land to his second Son by these words I do give and grant this Land to I. S. my second Son and his Heirs after my death and no livery made and dyes the Estate passeth not by Covenant and therefore the Son taketh nothing 50. pl. 78. Covenant with two severally and good 103. pl. 176. Counsel Counsellors Counsel saith to his Client that such a contract is Simony and he saith that Simony or not Simony he will do it and thereupon the Counseller maketh this Simoniacal contract this is no offence in him 83. pl 136. Custom and Perscription By the Custom of London a man may transfer over his Apprentices to another 3. pl. 6. By the Custom of London the Mayor may restrain any man from setting up his Trade within the City in a place unapt for it and for his disobedience may imprison him 15. pl. 34. Custom to cut Grass in the soyl of another to strow the Church good Custom 16. pl. 38. Custom or Prescription in non decinando by a Hundred is good but not by a Parish or particular Town 25. pl. 59. A Law or Ordinance where the Custom will warrant it that he that puts in his beasts in the Common beyond such a limit or bound shall pay 3 s. 6 d. is a good Law 28. pl. 64. Custom that if a man have see in Land that it shall descend to the youngest Son and if Tail that then to the Heir at Common Law is a good Custom 54. pl 82. Prescription to have Common for all beasts commonable is naught but for all beasts commonable levant and couchant is good 83 pl. 137. A Hille hath a Chappel and buries at the Mother-Church and for this have time cut of mind repaired parcel of the wall of the Church it is good for to excuse them from repairing the Church Inhabitants of a place prescribe to repair the Chappel of ease and in regard of this that they have been time out of minde freed from all reparations of the Mother-Church good prescription 91. pl. 151. Hille hath a Chappel of ease and a Custom that those with in such a precinct ought to find a Rope for the third Bell and repair part of the wall of the Mother-Church in consideration of which they have been freed of payment of any Tythes to the Mother-Church whether this be a good Custom or not quaere ubi supra Damage Cleer WHat Damage Cleer is and the prejudice that a man may have in this that he cannot have his Judgement before that he hath payed the Damage cleer 76. pl. 226. Damages and Cost Heir apparent ravished of full age his Fatâ—er shall not recover Damages 5 pl. 8. In Attaint the Verdict was affirmed and the Defendant in the Attaint prayed Costs but was denyed by the Court. 24 pl. 55. A man distraiâ—s for a Penalty asseâ—â—ed by Custom and distrainable by Custom and upon a Beplevin brought Judgement was given for the Avowant and Damage assessed and whether Damage ought to have been given or not quaere 38. pl. 64. Where Damages entire shall be nought and where not 47. pl. 76. 96. pl 166. 47. pl. 76. Where Costs and Damages shall be recovered upon a Penal Law where not 56. pl. 88. 61 pl. 95. Prisoner removing himself by Habeas corpus shall pay the costs of the removal otherwise where he is removed by the Plaintâ—ff 89. pl. 143. In an Accompt a man shall recover Damages upon the second Judgement 99. pl. 171. Debt A Sheriff levies money upon a Fieri fa cias Debt will lie against him and if he dyes against Executors 13. pl 33. In Debt upon an Accompt it sufficeth to say that the Defendant was indebted to the Plaintiff upon an Accompt pro diversis mercimoniâ—â— without reciting the particulars 102. pl. 175. 105. pl. 182. Defamation If a man Libel in Court Christian for calling of him Drunkard Prohibition lies See Tit. Prohibition 1. D. Libelled in the Ecclesiastical Court for these words She is a beaâ—â—ly quâ—an a 〈◊〉 qâ—ean a copper-â—os'd qâ—ean and 〈…〉 and hath 〈◊〉 500 l. and 〈…〉 with whorâ—s and Regâ—â—s upon which a Prohibition was prayed and granted 89. pl. 144. A woman Libelled in the Spiritual Court against one for calling her Jade upon which a Prohibition was prayed and granted but if it be Libelled for calling one whore or bawd no Prohibition lies 99. pl. 170. By the Custom of London an Action lies for calling a woman Whore and ruled a good Custom 107. pl. 184. Default Appearance Administrator of one Outlawed for murder brought Error to reverse the Outlawry and was allowed to appear by Attorney 113. pl. 190. Demands Demandable Grantee of a Rent to be paid at the house and if the Rent be behinde and lawfully demanded at the house that then it shall be lawful for the Grantee to distrain whether a distress upon the Land be a sufficient demand as this Case is or not quaere 147. pl. 218. Denizen Alien Merchant goes beyond Sea and marries an Alien who have Issue the Issue is a Denizen 91. pl. 150. Deprivation Where a Church shall be void without sentence of Deprivation See Title Void Voidable Devises Devise of Goods to one for life the Remainder to another the Remainder is void 106. pl. 183. Divorce A man divorced causâ adulterii is within the Proviso of the Statute of 1 of King Iames ca. 11. but not a man divorced causâ— saevitiae 101. pl. 175. Discontinuance A man may Nonsuit without the consent of the Court but not Discontinue without the Courts consent 24. pl. 54. Dispensations Whether the King by a Non obstante in his Charter of Pardon may dispense with the Statute of 13 R. 2. ca. 1. or noâ— quaere If you peruse this Case you shall finde much excellent learning upon that point in what Case the King may dispense with Statutes in what not 213. pl. 250. Distress Horses traced together are but one Distress Fetters upon a Horse-leg may be distrained with the Horse 91. pl. 149. Distribution Whether the Ordinary after Debts and Legacies
doubted thereof and did conceive that no costs should be given in this case and that upon Pilfords case 10 Rep. As to the Presidents he said that they did not bind him for perhaps they passed sub silentio And afterwards it was adjorned Johnson against Dyer 96. IN an Action upon the Case for words the Defendant having speech with the Father of the Plaintiff said to him I will take my Oath that your Son stole my Hens For which words the Plaintiff brought the Action But did not aver that he was his Son or that he had but one Son And it was holden by the whole Court Crooke being absent that the plea was not good Leake and Dawes Case 97. LEake brought a Scire facias in the Chancery against Dawes to avoid a Statute and the Case as it was moved by Serjeant Wilde was such Hopton acknowledged a Statute to Dawes and afterwards conveyed part of the Land liable to the Statute to I. S. who conveyed the same to Leake the plaintiff and afterwards the Conusor conveyed other part of the Land to Dawes the Defendant who was the Conusee by bargain and sale the Conusee extended the Lands of Leake the Purchaser who thereupon brought this Scire facias to avoid the Statute because that the Conusee had purchased parcel of the Land liable to the Statute and so exâ—inguished his Statute And this case came by Mittimus into the Kings Bench. And here it was moved by Serjeant Wilde for Dawes the Defendant in arrest of Judgment And taken by him for Exceâ—â—ion That the bargain and sale is alledged to be made to Dawes but it is not shewed that it was by Deed inrolled but yet it is pleaded That Virtute cujus viz. of Bargain and Sale the Conusee was seised and doth not shew that he entred And here it was said by the Court There are two points First Whether an Inrolment shall be intended without pleading of it Secondly Admitting not what Estate the Bargaineâ— hath as this Case is As to the first Justice Iones took this difference Where a man pleads a bargain and sale to a stranger and where to himself In the first case he need not plead an Inrolment but contrary in 〈…〉 Barckley agreed it and took another difference betwixt a Plea in Bar and a Count In a Count if a man pâ—â—ad a grant of a Reversion without attorâ—ment it is good contrary in Bar so in this Case The second question is admitting that the Deed shall be intended not to be inrolled without pleading What estate Dawes the Conusee hath before Entry the Deed not being inrolled For it was agreed by the whole Court That if he be a disseior or if he hath but an estate at will that the Statute is suspended And first whether he hath an estate at will at the common Law or not without Entry Barckley that he had But Iones and Bramston contrary and it seemed that he had an estate at will by the Statute And put the case of feoffment in Bucklers case 3. Rep. Where the Feoffee entreth before Livery that he hath an estate at will and Barckley agreed therein with him for the possibility of inrolment But Iones conceived that an estate at will could not be executed by the Statute And it was adjorned Curtisse against Aleway 98. THe Case was thus A woman was dowable of certain Land within the Jurisdiction of the Council of the Marches of which I. S. died seised She accepted a Rent by parol of the Heir out of the same Land in satisfaction of her Dower And afterwards there was a Composition betwixt them for defalcation of that Rent Afterwards there was an Action brought before the Council of the Marches for the Arrerages of the Rent where the question was Whether the Rent were in satisfaction of her Doweâ— or not and it was moved by Moreton for a Prohibition And it was granted by the Court because the same did concern Freehold of which they have not Jurisdiction for by the express Proviso of the Statute of 34 H. 8. of holding of plea of Lands Tenements Hereditaments or Rents But because that it appeared by the Bill that the woman was dead so as the realty was turned into the personalty viz. into Debt And therefore it was conceived by Evers Attorney of the Marches That although it was not within the Jurisdiction before yet being now turned into a personal Action that they have Jurisdiction But Iones and Barckley Justices were of a contrary Opinion and Iones said That an Action of Debt for Arrerages would not lie before them because it touched the realty which was denied by none but Evers Attorny Edwards against Omellhallum 99. IN a Writ of Error to reverse a Judgment given in Ireland in an Ejectione firme the Case was this as it was found by special verdict A Mortgager made a Lease for years by Deed indented and afterwards performed the Condition and made a Feoffment in Fee the Lessee entred upon the Feoffee who re-entred and the Lessee brought an Ejectione firme And the only question as it was moved by Glynn was Whether this Lease which did inure by way of Estople should binde the Feoffee or no and by him it did and Rawlyns case in the 4 Rep. 53. expresly and 1 2 Phil. Mar. Dyer agreeth And the whole Court Crooke only absent without any argument were clear That it should binde the Feoffee for all who claim under the Estople shall be bound thereby vid. Edriches case 13 H. 7. 100 Serjeant Iermayn came into the Court and shewed cause why a Prohibition should not be granted in the case of Skinner before who Libelled for Tythes of Coppice rooted up He agreed that for timber-trees above the growth of twenty no Tithes should be paid and so he said was the common Law before the Statute of 45 E. 3. which was but a confirmation of the Common Law And he said That as the body of the tree is priviledged so are the branches and root also which is a proof that where the body is not priviledged there neither shall be the root â—or branches And in our Case he Libels for roots of underwoods and the underwood it self being titheable therefore the roots shall be also tithable And he said that the 〈…〉 are not parcel of the Land But Justice Barckley was against it for they are not crescentia nor renovantia as Tithes ought to be and therefore no Tithes ought to be paid for them and he said that a Prohibition hath many times been granted in the like cases But Dr. Skinner did alledge a custome for the payment of Tithes of them And upon that they were to go to trial And here it was said that Dr. Skinner had used to have some special particular benefit of the Parishioners in lieu of Tithe of Roots And thereupon Barckley said That it is a Rule where the Parishioner doth any thing which he is not compellable by the Law to do
it turns the Avowry into a Justification in our Case so as you shall not make us Trespassers but that we may well justifie to save our damages Crawley Justice that the Avowry is turned into a Justification and that there is sufficient substance in the Plea to answer the unjust taking the distress Justice Reeve that it is good by way of Avowry for the distress being lawfully taken at the time it shall not take away his avwry therefore he shall have Retorn for that was as a gage for the rent and therefore differs from the other Cases Justice Foster put this Case at the Common Law Distress was taken and before avowry Tenant for life died Whether he shall avow or justifie But all agreed that at the least the Avowry is turned into a Justification but it was adjourned 179. The Court demanded of the Protonotharies Whether a man might make a new assignment to a special Bar and they said no but to a common Bar only viz. that the Trespass if any were was in Bl. Acre there ought to be a new assignment by the Plaintiff but Reeve and Crawley Justices the other being absent held clearly that the Plaintiff might make a new assignment to a special Bar and further they said that the Plaintiff if he would might trise the Desendant upon his Plea but we will not suffer him to do so because that his Plea is meerly to make the Plaintiff to shew the place certain in his Replication in which the Trespass was done 180. The Disseisee levieth a Fine by Reeve and Crawley Justices it shall not give right to the Disseisor because that this Fine shall enure only by way of Estoppel and Estoppels bind only privies to them and not a stranger and therefore the Disseisor here shall not take benefit of it and therefore they did conceive the 2 Rep. 56. a. to be no Law Vid. 3 Rep. 90. a 6 Rep. 70. a. 181. Serjeant Callis prayed a Prohibition to the Court of Requests for cause of priority of Suit but by Foster and Crawley Justices the other being absent priority of Suit was nothing the Bill being exhibited there before Judgment given in this Court 182. The Case of White and Grubbe before being moved again it was said in this case by Reeve and Foster Justices that where a man is indebted unto another for divers wares and the debt is superannuated according to the Statute of 21 Iac. cap. 16. and afterwards they account together and the party found to be indebted unto the other party in so much mony for such wares in that Case although that the party were without remedy before yet now he may have debt upon accompt because that now he is not bound to shew the particulars but it is sufficient to say that the Defendant was indebted to the Plaintiff upon accompt pro diversis mercimoniis c. 183. A Prohibition was prayed unto the Council of the Marches of Wales and the Case was thus A man being posfessed of certain goods devised them by his will unto his wife for her life and after her decease to I. S. and died I. S. in the life of the wife did commence Suit in the Court of Equity there to secure his Interest in Remainder and thereupon this Prohibition was prayed And the Justices viz. Banks Chief Justice Crawley Foster Reeve being absent upon consideration of the point before them did grant a Prohibition and the reason was because the devise in the remainder of goods was void and therefore no remedy in equity for Aequitas sequitu◠legem And the Chief Justice took the difference as is in 37 H. 6. 30. Br. Devise 13. and Com. Welkden Elkingtons Case betwixt the devise of the use and occupation of goods and the devise of goods themselves For where the goods themselves are devised there can be no Remainder over otherwise where the use or occupation only is devised It is true that heir looms shall descend but that is by custome and continuance of them and also it is true that the devise of the use and occupation of Land is a devise of the land it self but not so in case of goods for one may have the occupation of the goods and another the Interest and so it is where a man pawns goods and the like For which cause the Court all agreed that a Prohibition should be awarded Trin. 17º Car. in the Kings Bench. 184. A Man was sued in London according to the custom there for calling a woman Whore upon which a Habeas corpus was brought in this Court and notwithstanding Oxfords case in the 4 Rep. 18. a. which is against it a Procedendo was granted and it was said by Serjeant Pheasant who was for the Procedendo and so agreed by Bramston Chief Justice and Justice Malle◠That of late times there have been many Procedendo's granted in the like case in this Court 185. An Orphan of London did exhibite a Bill in the Court of Requests against another for discovery of part of his estate And Serjeant Pheasant of Counsel with the Defendant came into this Court and Prayed a Prohibition upon the custom of London That Orphans ought to sue in the Court of Orphans in London but the whole Court which were then present viz. Chief Justice Bramston Heath and Mallet Justices were against it because that although the Orphan had the Priviledge to sue there yet if he conceive it more secure and better for him to sue in the Court of Requests then he may waive his priviledge of suing in the Court of Orphans and sue in the Court of Requests for quilibet potest renunciare juri pro se intraducto c. and Heath said that he always conceived the Law against the Case of Orphans 5 Rep. 73. b. But which is stronger in this Case the Court of Orphans did consent to the Suit in the Court of Requests and therefore there is no reason that the Defendant should compel the Infant to sue there wherefore they would not grant a Prohibition but gave day until Mich. Term to the Defendants Counsel to speak further to the matter if they could Trin. 17º Car. in the Common Pleas. Dewel against Mason 186. IN an Action upon the Case upon an Award the case was this The Award was that the Defendant should pay to the Plaintiff eight pound or three pound and Costs of suit in an Action of Trespass betwixt the Plaintiff and Defendant as appears by a note under the Plaintiffs Attorneys hand ad libitum defendentis c. And the Plaintiff doth not aver that a note was delivered by the Attorney of the Plaintiff to the Defendant and the Defendant pleaded Non assumpsit and it was found for the Plaintiff and it was moved in arrest of Judgment for the reason given before Rolls contrary that there needs no averment and he said it was Wilmots case adjudged in this Court Hill 15 Car. where the Case was that the Defendant should
do so it is void And for that he cited Clegat and Batchellers Case before that the obligation in such Case is void and he said that the reason which was given by one why the Bond should be void was grounded upon the Statute of Magna Charta cap. 29. which wills That no freeman should be ousted of his Liberties but per legem terrae and he said that the word Liberties did extend to Trades and Reeve said that by the same reason you may restrain a man from using his Trade for a time you may restrain him for ever And he said that he was confident that you shall never find one Report against the Opinion of Hull 2 H. 5. For the other part of the difference he cited Hill 17 Iac. in this Court Rot. 1265. and 19 Iac. in the Kings Bench Braggs case in which Cases he said it was adjudged against the Action upon a Bond but with the Action of the Case upon a promise that it would lie But note that all the Judges viz. Foster Reeve and Crawley Bankes being absent held clearly that if the condition be against the Law that all is void and not the condition only as was objected by Evers and it was adjorned Apsly against Boys in the Common Pleas in a Scire facias to execute a Fine upon a Grant and Render Intrat Trin. 16 Car. Rot. 112. 239. THe Case upon the Pleading was this A fine upon a Grant and Render was levied in the time of E. 4. upon which afterwards a Scire facias was brought and Judgment given and a Writ of seisin awarded but not executed Afterwards a fine Sur coâ—usans de droit come ceo c. with Proclamations was levied and five years passed and now another Scire facias is brought to execute the first fine to which the fine Sur conusance de droit come ceo is pleaded so as the only Question is Whether the fine with Proclamations shall bar the Scire facias or not Serjeant Gotbold for the Plaintiff it shall not bar and his first reason was because not executed 1 Rep. 96 97. and 8 Rep. 100. If a disseisor at the Common Law before the Statute of Non-claim had levied a fine or suffered Judgment in a Writ of Right until Execution sued they were no bars and a fine at Common Law was of the same force as it is now and if in those Cases no bar at Common Law until Execution that proves that this interest by the fine upon grant and render is not such an interest as can bar another fine before execution Besides this Judgment by the Scire facias is a Judgment by Statute and Judgment cannot be voided but by error or attaint Further a Scire facias is not an Action within the Statute of 4 H. 7. and therefore cannot be a bar 41 E. 3. 13. 43 E. 3. 13. Execution upon Scire feci retorned without another plea and it is not like to a Judgment for there the party may enter but not here Besides it shall be no bar because it is executory only and in custodia legis and that which is committed to the custody of the Law the Law doth preserve it as it is said in the 1 Rep. 134. b. and he compared it to the Cases there put and a fine cannot fix upon a thing executory and the estate ought to be turned to a right to be bound by a fine as it is resolved in the 10 Rep. 96. a. 9 Rep. 106. a. Com. 373. And the estate of him by the first fine upon grant and render is not turned to a right by the second fine Lastly the Statute of 4 H. 7. is a general Law and in the affirmative and therefore shall not take away the Statute of West 2. which gives the Scire facias and in proof of that he cited 39 H. 6. 3. 11 Rep. 63. 68. and 33 H. 8. Dyer 15. I agree the Case which hath been adjudged that a fine will bar a Writ of Error but that is to reverse a Judgment which is executed but here the Judgment is not executed and therefore cannot be barred by the fine wherefore he prayed Judgment for the Plaintiff Note that it was said by the Judges that here is no avoiding of the finâ— but it shall stand in force but yet notwithstanding it may be barred and they all said that he who hath Judgment upon the Scire facias upon the first fine might have entred and they strongly inclined that the Scire facias is barred by the fine and doth not differ from the Case of a Writ of Error but they delivered no opinion Taylers Case 240. THe Case was thus The Issue in Tail brought a Formedon in Descend and the Defendant pleaded in Bar and confessed the Estate Tail but said that before the death of the Tenant in Tail I. S. was seised in fee of the lands in question and levied a fine to him and five years passed and then Tenant in Tail died whether this plea be a bar to the Plaintiff or not was the Question and it rested upon this Whether I. S. upon this general Plea shall be intended to be in by disseisin or by feoffment for if in by disseisin then he is barred if by feoffment not and the opinion of the whole Court was clear without any debate that he shall be intended in by disseisin and so the Plaintiff is Bar as the Books are 3 Rep. 87. a. Plow Com. Stowels Case and Bankes Chief Justice said that it shall not be intended that Tenant in Tail had made a feoffment to bar his issues unless it be shewed and it lies on the other part to shew it and a feoffment is as well an unlawful Act as a dissâ—isin for it is a discontinuance Commins against Massam in a Certiorare to remove the proceedings of the Commissioners of Sewers 241. THe Case upon the proceedings was thus Lessee for years of Lands within a level subject to be drowned by the Sea covenanted to pay all assessments charges and taxes towards or concerning the reparation of the premisses A wall which was in defence of this level and built straight by a sudden and inevitable Tempest was thrown down one within the level subject to be drowned did disburse all the mony for the building of a new wall and by the order of the Commissioners a new wall was built in the form of a Horshooe afterwards the Commissioners taxed every man within the level towards the repaying of the sum disbursed one of which was the lessee for years whom they also trusted for the collecting of all the mony and charge him totally for his land not levying any thing upon him in the reversion and also with all the damages viz. use for the mony Lessâ—e for years died the lease being within a short time of expiration his executor enters and they charge him with the whole and immediately after the years expired the executors brought this
the Actions brought by the other Creditors But Justice Bramston contrà That the damages were well assessed because that the Actions brought by the Creditors were added for aggravation only and the cause of the Action was the Arrest and Imprisonment like the case where a man speaks words which are in part actionable and others only put in for aggravation and damages is assessed for the whole it is good There was a third Error assigned That the Venire facias was de Warda omnium Sanctorum de Bristow without shewing in what Parish Childe against Greenhil 77. CHilde brought Trespass against Greenhill for Fishing in seperali piscaria of the Plaintiff and declared that the Defendant pisces ipsius cepit c. And Verdict found for the Plaintiff And it was moved by Saint-Iohn in Arrest of Judgement because the Plaintiff declared of taking of pisces suos whereas the Plaintiff they being ferae naturae hath not property in them Register 94 95. and F. N. B. and Book Entries 666. No count that the Defendant cepit pisces ipsiuâ— but ad valentiam c. without ipsius So Fines Case in Dyer 7 H. 6. 36. 10 H. 7. 6. 12 H. 8. 10. by Brudnell 13 E. 4. 24. 7 Rep. case of Swannes And the Book of 22 H. 6. 59. is over-ruled by the case of Swannes 34 H. 6. 24. And the same is matter of substance and therefore not helped after Verdict An Action of Trover and Conversion against husband and wife quia converterunt is not good and it is not helped after Verdict because it is matter of substance Rolls for the Defendant I agree that lepores suos or pisces suos without any more is not good But where he brings an Action of Trespass for taking them in his Soil there it is good because it is within his Soil So in our case for taking pisces suos in his several Piscary and with this difference agree 22 H. 6. 59. 43 E. 3. 24. so Regist. 93 102. 23 H. 6. tit Tresp 59. 14 H. 8. 1. and the Book of 43 E. 3. saith That in Trespass the Writ shall not say Damam suam if he do not say that it was taken in his Park or Warren or saith damam domitam or as the Book is in 22 H. 6. in my Soil or Land and by Newton he shall say there damas suis. And admit that it was not good yet I hold that it is helped after Verdict because it is not matter of Substance for whether they be pisces suos or not the Plaintiff shall recover damages Justice Barckly It is true that in a general sense they cannot be said pisces ipsius but in a particular sense they may and a man may have a special or qualified property in things which are ferae naturae three ways ratione infirmitatis ratione loci ratione privilegii and in our case the Plaintiff â—ath them by reason of Priviledge And it was agreed by the whole Court That Judgment should be affirmed upon the very difference taken by Rolls that where a man brings Trespass for taking pisces suos or lepores suos c. and the like that the Action will not lie But if he bring Trespass for fishing in his several Piscary as in our Case or for breaking of his Close and taking lepores suos c. there it will lie Pitfield against Pearce 78. IN an Ejectione firme the Case was thus Thomas Pearce the Father was seised of Lands in Fee and by Deed in consideration of Marriage did give and grant this Land to Iohn Pearce the now Defendant his second Son and to his Heirs after his death and no Livery was made Thomas Pearce died the Eldest Son entred and made a Lease to the Plaintiff who entred and upon Ejectment by the Defendant brought an Ejectione firme Twisden The only question is whether any estate passeth to the Son by the Deed and it was said there did and that by way of Covenant And it was agreed That in this Case if Livery had been made it had been void because that a Freehold cannot begin at a day to come But I may Covenant to stand seised to the use of my Son after my death So a man may surrender a Copyhold to take effect after a day to come Com. 301. So a man may bargain and sell at a day to come 1 Mar. Dyer 96. Chudleighs Case 129. 20 H. 6. 10. A use is but a trust betwixt the parties and 7 Rep. 400. There need not express words of Covenant to stand seised to an use 25 Eliz. Blithman and Blithmans case 8 Rep. 94. Besides these words dedi concessi are general words and therefore may comprehend Covenant and words shall be construed that the Deed may stand if it may be 8 Ass. 34. 7 E. 3. 9. But I agree that if the intent appeareth that it shall pass by transmutation of possession that there it shall be so taken but here his intent doth not appear to be so for if there should be Livery then the son should take nothing for the reason before given which is against his meaning Mich. 21 Iac. Rot. 2220. Buckler and Simons Case Dyer 202. Vinions case The cases cited before are in the future tense but the words are here I give c. 36 Eliz. Callard and Callards Case Stand forth Eustace reserving an estate to my self and my wife I do give thee my Land and the better Opinion was That in that case it did amount to a Livery being upon the Land for his intent is apparent Mich. 41 42 Eliz. Trelfe and Popwells Case adjudged in such case That an use shall be raised For which it was concluded that in this case there is a good estate raised to Iohn Pearce by way of Covenant Rolls I conceive that not estate is raised to Iohn Pearce by this conveyance It was objected That it shall inure by way of Covenant to raise an use I agree that if the meaning of the party may appear that he intended to pass his estate by way of raising of an use otherwise not And here is no such appearance Foxes Case in 8 Rep. is a stronger case and here it doth not appear that he meant to pass it by way of use But by the word give he intended transmutation of possession 8 Rep. Bedells case Mich. 18. Car. Rot. 2220. in the Common Pleas it was adjudged That a gift of a Remainder after the death of the grantor was void wherefore he concluded for the Plaintiff and so Judgment was given by the whole Court And Justice Iones said When a man makes a doubtful Conveyance it shall be intended a Conveyance at the Common Law And it shall not be intended that the Father would make him Tenant for life only punishable of wast Mich. 15º Car ' in the Kings Bench. 79. IT was moved for a Prohibition to the Counsel of the Marches and the Case was such A man seised of Lands in Fee