Leonard Barley Plantiff and Foster Defendant it was agreed without scruple by Winch and Hutton Iustices only present in the Court that if a man infeoff another to the use of A. for life and after his death to the use of his daughter till B. pay her a 100. l. and then to other uses c. to the use of B. I. in this case the daughter had not any remedy for the 100. l. if B. will not pay that except he make a new promise and then upon that she shall have an action upon the case upon which if shee recover and have satisfaction the use will arise to B. but otherwise not though she have judgement to recover that and whether this same is discharged is triable by the record of the recovery John Theaker's case NOte that one Iohn Theaker was seised of certain lands and died in Ianuary last and his wife was married to one Duncombe within a week after and one Alphonsus Theaker entered into the land as Cozen and heir to Iohn Theaker deceased and the wife of Iohn Theaker who was dead gave out words that she was with child by her first husband and upon that Alphonsus Theaker had a writ de ventre inspiciendo directed to the Sheriff of London to inquire by 21. Knights and 12 women in the presence of the Knights whether she was with child or no and the Sheriff executed that and returned that they thought that she should be brought to bed within 20. weeks and upon that it was prayed that the Court would award according to Bracton that she may be taken into custody and that she may have divers women of fashion which may attend her daily till she is delivered that no deceit may be contrived against Alphonsus to deceive him but the Court would not agree to that though there was a president urged Hill 39. Eliz. Rot. 1200. Sir Percival Willoughby and the Lady Willoughby his brothers wife in this Court but the Court awarded that she should not be taken and detained from her husband but that a writ should issue to the Sheriff of Surrey whither the woman was now removed to return divers sufficient women which may resort to her daily till she is delivered which was done accordingly Fosters case FOster brought an action of debt of 300. l. against C. upon 2. obligations dated 20. December to pay him 150. l. c. and averred he had not paid that and did not say nor any part of that and Bing took exception to that in arrest of judgement because he had not averred that he had not paid any part of that and perchance he had paid part but not all but Hutton said that it is very good though this be upon several bonds and it any be paid it ought to come of the other part to shew that Woolsey was outlawed at the suit of Iones in an action of debt upon an obligation and the Capias ut legatum was taken out of the Court of the common pleas where he was outlawed in Trinity Term 21. Iac. and in December following Woolsey was warned to be at the Town of Shrewsbury to chuse Burgesses and before the day a binding process did issue out of the Marshes of Wales against Woolsey after Iones had delivered the Capias ut lagatum to the Sheriff to take Woolsey and the same morning that the election was Woolsey was taken upon the Capias ut lagatum but he was suffered to go and to give his voice in the election and then the Baileys of the Marches of Wales arrested him upon the process and because the Bailiffs of the Sheriff would not suffer the Bailiffs of the Marches to take him away from them there was gathered a great riotous companie on both sides but the Bailiffs of the Sheriff took him away and they and all them who took their parts were sued in the Marches for the withstanding their Bailiffs and upon this Harris moved for a Prohibition and the Court c. Winch and Iones said that if he is outlawed bona fide it shall be granted for the Bailiffs of the Sheriff had lawfully arrested him and it is lawful for them to keep him and for others to assist them and Winch said that if the persons which stood by had refused to help them this had been also sinable and it was said that the suffering him to go to the election was not any signe of a fraudulent arrest nay if the partie himself had consented to a fraudulent arrest upon a Capias ut lagatum this had not been punishable though they had known that there had been binding Process out against him because the arrest the detainer was lawful and agreed in the principal case that a Prohibition shall be granted and it was said that the other side are punishable because they did not aide the Sheriff for the officers of the other side were the cause of the Riot Sir Michael Wharton and Sir Edward Hide IT was agreed without scruple between Sir Michael Wharton and Sir Edward Hide that if a man in an avoury convey a good estate for years to two and one release to another that is not good without the shewing of a deed in that case Michael Bone and the Bishop of Norwich IT was agreed between Michael Bone and the Bishop of Norwich in trespas that by the lease of a Grange and all houses and buildings thereupon and belonging or let heretofore to one Edward Garrard that in this case if it may not be proved that the Tithes were not let to Garrard then they will not pass by this lease for it is not possible that Tithes shall pass as appurtenances to a grange because that they are of several natures except as Winch said that the Grange is the Gleab for if it is then the Rectory may pass by this name William Trist and Cawtrel at the suit of Heath WIlliam Trist and Cawtrel were bound in an obligation of 40. l. to one Heath who brought an action of debt upon that and recovered at the assizes and now it was moved in arrest of judgement that this was a mistrial for the venire facias was between Heath and Iohn Trist and the Sheriff returned that to be between Heath and William Trist and for this variance he shall not have judgement in the Case Hutton said in the case between Mankleton and Allen. MAnkleton and Allen that is a man had goods taken from him which taking he supposeth to be fellony but it is not and he complains to a Iustice of peace of that who commits the offender and bindes the other to prosecute and he accordingly preferred a Bill at the Sessions and the other is acquitted and the opinion of Hutton in this case was that this is not punishable by an action upon the case in the prosecuter for that shall never be maintained without apparant malice in the prosecutor Blunt and his wife against Hutchinson BLunt and his wife brought a quare Impedit
if one be named in the venire facias Gregory is returned George there needs not amendment if it be in a Tales otherwise in a principal pannel 66 Action for words he is as arrant a Thief as any is in England the Plantiff needs not aver that there are Thieves in England for the difference is when the words relate to a particular place and when to an intire Realm and so when it is tied to one kinde of fellonie 70 89 Action upon the case where it lieth for a malitious prosecution at the Sessions 73 An action by the Obligee for the Obligor saying he had forged the bond but if he had said to another that he was a forger and had forged false writings no action lies 76 Action upon the case upon a contract in London to Table with the Plantiff at A. in N. and he then and there assumed to pay 4. s. by the week where the action must be brought 78 An action upon a promise against a Parson in consideration that the Plantiff would better his Tithes by Planting hops that he would allow him 40. s. an acre for his charge if that be a good consideration 80 Action upon the case where it lieth against an Attorney for convinous pleading 90 Action by an Attorney for saying he had forged writings and deserved to lose his ears lieth not 90 91 An action against a Sheriff whethâ—r it lies in the Countie where the return of the extent was made or where the land lies 100 Averment against the Sheriffs return where good and where not 100 Amendment where the venire facias habeas Corpus and the pannel agree but the Jury Rolâ— differs 101 Action of the case upon a promise 101 Action for saying the Plantiff stole a ring and had been hanged but for me lieth 102 Action upon a promise where the time and place of the request ought to be expressed 102 103 112 113 Aâ—bitrators amongst other things award interest mony whether good for all or part 114 120 Action by Serjeant Hitcham for saying I doubt not but to prove Sir Robert Hitcham hath spoken Treason 123 124 B A Bail where he is not liable to the judgement until default be in the principal or if the principal die 61 62 C A Commission to 4. or 2. of them and one refuseth the other sit the 4th may be a witness 45 Condition to save harmless he plead in the affirmative he must show how 9 A Coppiholder releaseth to his Companion it is good without admittance 3 A Coppiholder where he may inclose or dig for Marle and where not 8 A Covenant to injoy without the let of the Grantors c. or by their procurement 4 A Custome for a Coppiholder to cut trees at his pleasure is void 1 If Tenant in antient Demesne devise his lands the Devisee shall have fee 1 Covenant See fine Costs where they shall be given against an Administrator 11 A Condition to surrender coppihold he pleads he did it not good because he shewed not when the Court was holden 11 A Commission to seise for recusancie they seise an advowson the Kâ—ng grants to I. S. who presents and is disturbed by the Universitie of Oxford to whom the presentation belongs 11 12 13 Costs upon a Nonsuit at a nisi prius whether assessible by the Court or by the Judge of Assize 16 Common claimed to 600 acres and certain Messuages and lands and that he was disturbed by digging common Borrowes and doth not say he was seised at the timâ— much good matter 16 17 Custome of Merchants in Bills of Exchange varietie of good matter 24 Condition to free the nâ—xt avoidance from incumbrance the Grantors heir presents if that be a breach 25 Custome to have a widdowes estate and the husband is attainted if it holds 27 Condition that I. S. shall levie a fine to the Obligee who sued not a writ of Covenant the Plantiff replies that before c. I. S. had made a feofment of c. whether the Obligee must sue a writ of Covenant 29 30 A Condition contingent where extract by release 30 31 54 55 56 Covenant to make assurance by advice so that it be within Norfolk or Citie of N. a fine is advised not good because not shewed where it should be levied 32 33 Covenant not to alien an advowson without assent the Plantiff saith he had aliened c. good although he had not said by deed 34 Covenant where it raiseth a present use and where not 35 36 37 59 60 Custome touching Marchants and nationall lawes 52 Church shall be repaired by him who hath land there though he be no inhabitant but not lyable for the ornaments thereof 53 Coppiholder what act by him will make forfeiture 62 Covenant by a draper against his apprentice for defrauding him the Defendant pleads the Statute 5. Eliz. and that thereby there ought to be a certificate that his father had 40 s. per annum freehold which was not done here 63 64 If a Coppiholder sels his land to a Lessee of the Mannor it is good 67 Condition in a Will where nothing vesteth till it be performed 69 Costs not to be paid where the Plantiff mistakes his action 69 Covenant brought by an Executor the Defendant pleads giving of an horse in full satisfaction which the Testator accepted 76 A Court of equitie if it doth decree against a maxime in law as benefit of Survivorship a prohibition lieth 79 Covenant that he was seized of a good estate in fee and had good authoritie to sell and that no reversion was in the King c. 91 92 93 Condition where it shall be precedent and where subsequent 105 106 107 108 c. 115 116 c Costs not discharged although the offence be pardoned 125 Commendam See King D IN dept after imparlance alwayes ready is a good Plea 4 Distress gone as to the nomine Paenae if the rent be expired 7 A Declaration where it shall be mended in matter of substance 20 Damages where good in part especially after verdict 27 28 Debt against an Administrator who pleads outlawrie in the intestate no good Plea 33 58 A man soweth land and deviseth to I. S and dies before severance whether the devisee or Executor shall have the Corn 51 A Devise for years if an entrie by him must be pleaded 53 Declaration see new assignment Dower a Tenant pleads a fine levied by her husband and that the wife had not claimed within the Statute 4. H. 7. she replied she brought a writ which abated and this writ now brought was by Journeys accompts 66 Debt for rent must be brought by a privie in estate only where the land lies otherwise of a Privie in estate and contract 69 Debt upon a bond the Plantiff saith he had not paid the money and did not say nor any part thereof good for that must come of the other part to shew 72 Debt upon a bond to perform an award the Defendant
the words are found generally but yet admitting that the last words are actionable yet the Plantiff shall not have judgement for the damages are intirely given and for that reason void see more and Bedles case cited in Osborns case Cook 10. Harris Serjeant to the contrary for an Auditor is an officer of trust and he took an oath when he entered into his office and his receiving fees which are not due are also extortion and the words of Cousâ—â—age shall have also relation to the office as in Barkleys case you are a corrupt man an action lyes and Haywel and Stakleys case of a Iustice of the peace and Sir Miles Fleetwoods case he being receiver of the Court of wards one called him Mr. deceiver and ruled action lies and tunc et ibidem shall have relation to the same time in which the said words were spoken and so he prayed judgement for the Plantiff and it was adjourned till another time See after Good against Bawtry GOod brought an Ejectione firme against Bawtry for ejecting him of certain lands in Creeting St. Maries in Creeting St. Olaves and in Creeting omnium sanctorum and a Venire facias issued to try the issue to Summon 12. men de vicineto de Creeting St. Mary Creeting St. Olaves and Creeting omnium omitting Sanctorum and it was now moved in arrest of judgement by Attoe Serjeant that the Venire facias was not good for it ought to be of all the Creetings and the Court blamed the Clark very much for his negligence but it was adjourned till another time A man lett an advowson for 40. years and the lessee covenanted that he would not alien without the assent of the lessor and he shewed all the matter because he had aliened to I. S. without his assent and the Defendant pleaded that he had not aliened without his assent and upon that they were at issue and it was found for the Plantiff and now it was moved in arrest of judgement because he had not laid that the alienation was by deed for an advowson may not pass without deed and Hobert said if a man will declare in an ejectione firme of a lease made by the husband and the wife without deed this is not the lease of the wife without deed or yet if the Defendant will plead not guilty or non dimisit and this is found for the Plantiff the Plantiff shall have judgement for this shall be intended to be by deed which was granted by Winch Iustice being only present that the breach was well laid and he alleadged a president 43. Eliz. a man avowed and had not shewed that this was by deed and the Defendant pleaded non concessit and found for the avowant and he had judgement but Hobert denyed this case but afterwards in the principal case it was adjudged that the breach was well laid and the Plantiff had judgement In a formedon in reverter the Tenant was essoyned and the vouchee also appeared the case was essoyned and he had day over till octabis Michaelis And then the Attorney of the Defendant would have been essoyned and it was argued by Hendon Serjeant that he shall not be essoyned and yet he agreed if the vouchee had not appeared the Tenant might have been essoyned againe 13. E. 3 essoyne the 8. and the same Law of the vouchee be returned tarde but if the vouchee appeare and is essoyned there the Tenant shall not be essoyned againe and so is the express â—ook of the 3. H. 7. 17. 9. E. 3. 39. and the reason is because by the appearance of the vouchee the Tenant is out of the Court c. and it was adjourned till another day and at that day it was resolved by the Court that the Attorney shall be essoâ—ned and this was upon the view of a like judgement in the case of the Earl of Clanrickard and Hobert said that in that case the Roll of the 3. H. 7. was searched for and could not be found and Towse urged 22. H. 6. and 13. E. 3. essoyne 8. Sir Henry L. Warden of the Fleet. RIchardson Serjeant moued for the warden of the Fleet Sir Henry L. and his motion was that whereas one I. S. was in execution in the Custody of the Warden of the Fleet for 300. l. and he made an escape and he at whose suite he was in execution brought an action upon this escape against the Warden of the Fleet and he shewed that the Warden upon fresh suit had taken him again and he prayed that the Plantiff may not proceed in his action for though the Warden of the Fleet may plead this though the action was brought before the retaking of the party yet he prayed for the saving of charges that the action may be stayed and he said that there was such a case in this Court against Harris deputy Warden to Sir Henry L. upon such an escape and he pleaded to the issue and after he retook the prisoner and in this case the Court had also relieved Harris if the issue had not been joyned but Hobert let the Plantiff be brought here present in Court and then we will speak to that point Gell against White Gell against White and others and he declared in action of Trespass but the writ was general but the declaration was quare vi et armis bona et catalla sua ceperunt et asportaverunt viz. tertiam partem unius dishei plumbei Anglice the third part of a dish of lead Ore and it was moved that the Plantiff shall not have judgement for the variance between the writ and the declaration and though it is objected that here is nor any original writ at all for in verity there was not any yet the declaration is contrary to it self for if in a replevin the Plantiffs writ is de bonis et Catallis and his declaration is of a taking of a horse this is not good and so here bona viz. tertiam partem c. for this particular thing may not be said to be goods and Chattels and Harris Serjeant moved that the Attorney might be banished the Court for declaring without a writ according to the express book 20. H. 6. Hobert good reason adjourned till another time Anne Buckley against Simonds Mich. 18. Jac. Rot. 2120. ENtered Mich. 18. Jac. Rot. 2120. Anne Buckley was Plantiff in a Quare Imp. against Simonds and the case in effect was that Andrew Buckley Grandfather of the husband of the Plantiff did Covenant by indenture with Preston that before such a day his Son should marry the daughter of Preston And Covenanted to convey 6. l. 13. s. per Annum of rent issuing out of land to hold to them during the life of the Covenanted and his wife and after this he Covenanted for him his hetres and assignes that after the death of the Covenantor and his wife the land to which the advowson in question is appendant shall remain come and be unto the said
Infant was not bound by this Covenant at the Common Law and no Collateral covenant shall be maintainable upon the Statute for this being against an Infant it shall be taken strictly as a custome that one shall infeoffe yet that custome will not warrant him to lease and release and as to that which had been said that it is incident to every retainer to serve truly and faithfully that is very true and an action upon the case lies upon a covenant in law but not upon the covenant in fact he ought to have Collateral securitie which was also confessed by Hutton and he said moreover that the retainer is for the benefit of the Infant that he learn his Trade but the covenant here is for his disadvantage and for the advantage of his Mr. and for that reason it is void as if an Infant had covenanted to pay 10. l. for the learning of his Trade when his time was up Winch Iustice contrary to that last point for he thought the covenant to be incident to the retainer and good though he is an Infant as an Infant who levyes a fine is also inabled to make an indenture to lead the uses and note that Hutton and Hobert said also that the barre of the Defendant is good viz. the pleading of the want of the certificate and for that reason the replication of the Plantiff that he had 40. s. per annum is evil and though the rejoynder of the Defendant is evil and a departure yet it appears that the Plantiff had not any cause of action and for the covenant they said that they two are strong in their opinions and upon that Winch agreed also that judgement shall be given against the Plantiff and Attoe moved the Court what remedy the Plantiff may have for the loss is 500. l. and per totam â—uriam he shall not have an action of accompt for that lies not against an Infant being an apprentice Coo. 11. 89. and the Court said that as to the retainer and the damage it is no more then if an Infant had been retained by word and there is not any remedy but an action upon the case and Attoe said that they had thought to have brought an action of Trover and conversion and he doubted whether that will lie and after the Court said to him you had best to bring an action upon your case and it was afterwards ordered by Arbitrement Oxford and his wife against Goldington IN a Prohibition for Oxford and his wife against Goldington to the Court of Audience for they are sued there for a legacie devised to the Plantiff by one George Cotton and this is as they are Administrators to one William Cotton who was executor of the said George for that he libelled against the Plantiffs in the Prohibition in the Court of Audience and had shewed that they had goods of the first Testator and a Prohibition was awarded and Finch moved for a consultation and he said if by the spiritual Law an Executor wasts the goods of the Testator and after dies intestate that in this case his Administrator shall answer that viz. the debts and the legacies of the first Testator and Doctor Pope who was present in the Court said that the Law was so and so he said the Common Law was that is the Statute of 31. E. 3. which gives the same remedy against an Administrator as against an Executor if the Executor die intestate for it is the interest of the first Testator upon which the Administrator shall be committed to the next of the Kin and if none will take that upon them then the Administration of the Executor ought and ought to take several letters of Administration for that and if no letters of administration is taken and yet he meet with the goods he shall be charged as an Executor of his own wrong and if no goods be of the first Testators then it is no reason that he should be charged and the Statute of 31. E. 3. gives no remedy per Curiam but against the immediate Administrator and if the case be as you have alledged then the Legatee or the debtee is at no damage or mischief for he may sue the Administrator of the first Testator if he had goods or any other who had goods as Executor of his own wrong and if none will take letters nor yet meddle with the goods then the debtee or the Legatee may take letters of Administration himself and so no consultation was awarded but the Prohibition stood Avis against Gennie and others ONe Avis brought an action of Trespass of his close broken against Gennie and two others and the writ was general but in the the declaration he affirmed that to be in Ayring half a Rood and in digging another half Rood and after in his new assignement shewed that to be a Sellion containing by estimation and acre and it was found for the Plantiff and damages assessed to 20. s. and now it was moved in arrest of judgement by Attoe because the new assignement is more large then the declaration and the opinion of the Court was that because this was but an action of Trespas where damages only is to be recovered that this is very good but otherwise it is perthance if that had been in an ejectione firme Brigs case BRigs brought a Prohibition against another and alledged that the Dean and Chapter of D. was seised of the Mannor and the Defendant being Vicar sued to have Tithe in Court Christian and shewed that time beyond memory c. they had held that discharged of Tithes for them and their Tenants and that they let that to the Plantiff and it was moved by Hendon Serjeant that the Dean and the Chapter are a bodie Politique and temporal which are not capable of this prescription in non decimando Coo. 2. the Bishop of Winchesters case Hobert said that the Dean and Chapter are a bodie spiritual and are annexed to the Bishop throughout all England and if the Bishop is capable of that as it is plain he is then the Dean and Chapter is also capable of that which was granted by Hutton but Winch doubted for Winch said he may be a lay man and for that the Plantiff ought to averre that he is a spiritual person Hutton confessed that the Dean may be a lay man as was the Dean of Durham by special licence and dispensation of a King but that is rare and a special case and is not common and general and therefore not to be brought as an example which was also granted by Hobert chief Iustice and upon that day was given over to the Defendant to shew cause wherefore the Prohibition shall not be granted Anne Summers case in Dower A Writ of Dower was brought by Anne Summers against the Tenant of the land and he pleaded a fine with proclamations levyed by her husband 14. Iac. in which year the husband died and the wife had not claimed within the Statute
years notwithstanding his advancement and he resigned during the 3. years and issue there taken upon the resignation and this case proves all the partes of our case first that the King may dispence and that by his dispensation he is compleat person to resign and if he do resigne during the years the King shall not have the prerogative to present again for that was satisfied with the dispensation and also when the King came to his prerogative by subjects means he ought to take that as it falls for otherwise he loses that quite vide Bastervils case Coo. 7. and another reason is if it be not satisfied then the King shall have another which is mischievous and this being a new case such president is not to have more favour then the necessitie of the Law will require and so my opinion is that it is all one as if it had for life and there is a good case 9. Ed. 3. 20. where the King had 2. presentments vide the case but it was upon another reason but the case of 21. H. 7. 8. Frowike where the grantee of the next avoydance had judgement to recover and the incumbent resigned so that it is the second presentment yet the Plantiff shall have the effect of his judgement and he had a writ to the Bishop quere the application for I did not well heare that but in our case if the prerogative of the King was not satisfied yet it ought to appear that when he presented Gee he had no title but that was an usurpation and if the King was not satisfied then the Plantiff shall not have judgement for then Gee was an usurper and upon that declaration the Plantiff shall be barred but now for the last point admit that the King was satisfied of his prerogative by his presentation of Gee whether the Plantiff had lost his course I think he had in the first place the words of the devise are the first the next avoydance which shall hap after the death of Athur Basset now it hath been objected that the King had the first by his prerogative and therefore he shall have the second I think in this case Brook presentation 52. is a strong case where a presentation was granted to one and after to another when the first is void and ruled that the second grantee shall not have the second and so Dyer 35. it ought to be taken according to the words for otherwise he shall not have any for modus et Conventio uniunt Legem and the case of quare Impedit 152. proves something to this purpose for a man had 4. advowsons and granted the next which should hap of them to I. S. and he died and the heir assigned the wife for her Dower one Mannor to which the advowson was appendant which first became void and ruled that the Grantee shall not have that against the feme and then it was moved by Thorpe that he shall have the second but Shard said certainly never which proves that if the turn of the Grantee was taken from him by the indowment of the feme he had lost that for ever the like case is the 15. H. 7. 7. 14. H. 7. 22. moved by Mordant that the Grantee of the third shall have the fourth when the wife is indowed of the third which case is brought to prove a case which without question is not law and that is that the King being Gardian of the Grantee of the next avoydance and he grant that in this case the heir shall have that at his full age which without question is now law for by the same reason his course may be the 20. but there are two rules from this which seem to cross this opinion one rule is that the words of the grantor shall be taken most strong against himself and the other that the Grantor shall not be received to avoid his own grant as it is said in Davenports case Coo. 8. but yet these rules are to be intended where the words are compleat for as the case is the 13. Ed. 3. Grant 65. that where the husband and his wife are joynt Tenants for life and he in reversion grant the lands only which the husband held in this case nothing passeth for the reversion was expectant upon a lease which the husband and wife held nay I will cite one case where a man by his own Act shall avoid his own grant in a quare Impedit Elmes against Taylor where a man was seised of the Mannor to which the advowson was appendant and he granted the third next avoydance and after against his own grant he usurped and it was adjudged that by this usurpation he had gained the advowson to be appendant to his Mannor again and that the Grantee had lost his course and so the case in Dyer 283. where the Church was void and the patron granted the next avoidance tunc vacant to another and this pro hac unica vice tantum and there resolved that the grant was not good and that it should not extend to another and so in our case it shall not extend to a second another reason is if the King had a prerogative he is bound and every derivative estate under him for he shall not be in better case then the grantee for he was bound by the law of the land and for that it is equitie and it is Iustice that the estate of the grantee should be bound and so in this case like to the case in Plowden 207. and Dyer 231. where by Act of Parliament the possessions of an Abbot were bound now if afterwards the Abbot made a lease for years or granted the next avoydance and then after they came to the King he shall avoid the grant for the interest of the Grantor was bound by Act of Parliament and see the case of the universitie of Oxford Coo. 10. where a man before he was a recusant convict he granted the next avoydance and after he became a recusant convict and then the Church became void now the grantee shall not present for his interest was bound by Act of Parliament and so he must take it and here it behoves him to take that as it is bound with the prerogative of the King and so upon all the matter he hath lost his title and he concluded that the Plantiff shall be barred The argument of Justice Winch. WInch Iustice of the same opinion but because his argument was much to the purpose of that with Hutton and the Lord Hobert therefore I will not Report that verbatim and Winch said I will speak to the last point which was moved by my brother Hutton and I hold that where he had the first granted to him now he shall have none at all for it is punctually expressed that he shall have the first and that shall not extend to the next which may be granted but I grant if two coparceners had an advowson and the eldest presented and
years then this is void by resignation and so is the case of Packhurst that when he resignes during the years of the Commendam the Patron shall have that and not the King and so also my opinion is clear that if he had died within the 6. years limitted by the Commendam that the King shall not have that for then it is void by death and not by the assumption of the Bishoprick which book proves directly that a Commendam may be aswel for years as for life but yet I do not hold that upon those temporary Commendams if the Bishop continued Parson during the years and made no Act to impeach that then is a void cause S. the assumption of the Bishoprick and then when that is determined the supension is determined and it is void by the original cause S. by the assumption of the Bishoprick and this Commendam doth not turn the second or first Patron to any prejudice for the incumbent is still in by the presentation of the Patron and the determination of the Commendam is not any cause of the avoidance of the benefice but this is quasi non causa which is causa stolida as the Logicians do term it but in this case the assumption is the cause of the Cession and it is like to the case of 25. Ed. 3. 47. where the King brought a quare Impedit against the Arch-Bishop of York for a Prebendary vide the case and ruled in that case that the confirmation of the King had not taken away his title to present and the reason was because the confirmation had not filled the Church but continued that full which was full before and here this temporarie Commendam may not restrain the King to present afterwards for this is not a presentation and therefore may not take away the title of the King and here the Plantiff hath not well expressed it for he hath not shewed in this Court that the presentation of the King was lawful neither that Chardon held that by vertue of the Commendam for all the 6. years but only that the Church became void by the Laws of England and that is not sufficient and then if all before were for the Plantiff yet the question is whether he hath lost his turn and I think that he hath omnis argumentatio est à notoribus and the first is better known then the second and the second may not be the first and there when the devise gave him the first it is idle to say that he shall have the second for that departs from the meaning of the words and in every grant the law implies quantum in se est and no man may say that the devisor did intend to warrant that from antient Titles and so the Lord Hobert concluded his argument and said his opinion was that the Plantiff shall be barred and judgement was commanded to be entred accordingly Mich. 22. Jac. C.P. Michaelmas Term in the two and twentieth year of King James in the Common Pleas. DAvenport moved for the amendment of a Record where a recovery was suffered of lands in Sutton in the Countie of York and the indenture of bargain and sale was by the right name and the indenture of uses by the right name but the writ of entrie was of the Mannor of Sulton and upon the examination of the parties to be recovery that the recovery was to no other uses then is expressed and mentioned in the said indenture this was to be amended Sheis against Sir Francis Glover SHeis brought an action upon the case against Sir Francis Glover and shewed for the ground of his action that where one Harcourt was bound to the Plantiff in a Recognizance c. upon which the Plantiff took forth an elegit and the Defendant being the Sheriff of the Countie took an inquisition upon that upon which it was extended but he refused to deliver this to the Plantiff but yet he returned that he had delivered that and upon that he brought his Action and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Serjeant Hendon and the reason he shewed was because he laid his action in an improper Countie for though the return was in Middlesex where the Action was brought yet because the land lies in Oxfordshire where the seisin ought to be delivered the place is Local and for that the Action ought to be brought there and now Serjeant Breamston argued that the Action was well brought in Middlesex for this being but a personal thing he may bring that in either of the Counties as 14. Ed. 4. 13. Ed. 4. 19. expresly in the point and to the second objection that had been made that an Averment may not be against the return of the Sheriff to that Breamston answered that in an other Action an Averment may be against the return of the Sheriff though not in the same Action as 5. Ed. 4. but it was agreed to have a new trial by the preservation of the Iustices for otherwise it seemed the opinion of the Court was that the Plantiff shall have judgement upon the reasons urged by Serjeant Breamston Mary Baker against Robert Baker an Infant in Dower MAry Baker brought a writ of Dower against Robert Baker an Infant who did appear by his Gardian and he pleaded that his father who was husband of the demandant was seised of a Messuage and of land in Socage and devised that to the demandant for her joynture in full satisfaction of all Dower and he shewed that after the death of his father the demandant did enter into the said Messuage and land and was seised of that by vertue of the devise and to that the demandant did replie by protestation that he did not devise and for plea confessed the seisin of the husband and her own entrie but she further shewed that the Infant who was then Tenant was but of the age of 14. years and that she entred as Gardian in Socage to the Infant and disagreed to accept of that by vertue of the devise and traversed the entire and the agreement and it was said by the Court that his bar is good though it had been more pregnant to have alledged that she entred virtute legationis praedictae and so was seised and after it was said that the Replication was very good without the traverse for this was not expresly set down but that was but meerly the consequence of the plea which in veritie was not traversable Hickman against Sir William Fish HIckman had judgement for 600. l. and 10. l. damages against Sir William Fish and he acknowledged satisfaction for 410. l. of the said debt and damages and after there was an agreement between them that if Sir William did not pay the residue by such a day that then it should be lawful for Hickman to take out execution against the said Fish without suing of any scire facias though it was after
within the Statute and â—hirdly he had not shewed what time he was received that so it might appeare that he was an apprentice but for half a year and such a retainer is not within the Statute fourthly the conclusion of the information is contrary to the form of the Statute yet this doth not aide the imperfection of the information for such information only extends to matter of circumstance and not to matter of substance Finch Serjeant contrary that the retainer of an apprentice who departs out of the service of his Mr. without a testimonial is within the Statute of the 5th of Eliz. for the same branch is general there being no person who departs c. and an apprentice is a person which departs secondly the clause of the Statute is be it enacted that none of the forementioned retained persons c. and an apprentice is a person which is in a special manner named before Mich. 19. Jac. and therefore he is within the express words of the same branch Thirdly the form of the testimonial proves that for it is I. W. servant to such c. and an apprentice is such a servant Hobert chief Iustice said that it was never the intent of the Statute to make an infant who is an apprentice to be within the danger of the same Statute for an infant at the age of 14. years may be bound to be an apprentice and the punishment which is given by the same Statute is that such person shall be whipt as a Rogue which plainly proves the Statute intends only those who are of full age and if other construction shall be made perchance that the sonne of a gentleman may be punished as a Rogue by such departure and he held that if an apprentice depart with his Mrs. goods delivered to him that in this case he is not within the Statute of the 21. H 8. as another servant is and Serjeant Finch said that there is an express exception and if that had not been that an apprentice had been within the danger of the law but Hobert said that he doubted much whether an apprentice had been within that Statute though the Proviso had not been made but this proves that the makers of the Statute thought this to be a hard matter to make an infant who is apprentice to be within the danger of the same law and for that reason the proviso of the Statute was made Winch said to which Hutton agreed that when the Defendant had pleaded nihil debet and this was found for the Plantâ—ff yet he may move in arrest of judgement if the matter be not within the Statute adjurned In a replevin the Defendant said that he hâ—d property in the beasts absque hoc that the property was to the Plantiff and so prayed judgement of the writ and it was found for the Plantiff and now Harvey Serjeant moved in arrest of judgment for in no book is found such a traverse as this that the Plantiff had not property but only that the property was to the Defendant and secondly the conclusion of the plea is not good for he ought to conclude to the writ and not to the action Hobert 6. H. 7. is that an action of detinue affirmes the property at the time of the action but a repleviant the time of the taking and two men may have such property in the same thing that every of them may have a replevin and Hutton said that when the Defendant in the replevin claimed property he ought to conclude to the action and Hendon Serjeant being only at the barre and not of councell in the case said that the book of entries is that he shall traverse the property of the Plantiff as in the principal case Hutton Iustice said that this was never seen by him but they all agreed that this being after verdict judgement shall be given for the Plantiff Trehern against Claybrook Ent. Tr. 18. Jac. Rot. 650. TRehern against Claybrook in a debt upon a lease for yeares the jury gave a special verdict to this effect that Iohn Trehern Grandfather of the Plantiff was seised of land in fee and let this for forty yeers rendring rent for which the action is brought and that he devised the reversion to the Plantiff in catle the remainder to Leonard Trehern in taile with divers remainders over and with provises in the same will that for the raising of a stock for the Plantiff and for him in remainder his will was that one Griffith and Anne his wife being daughter of the devisor should have the profits and rent of the said land to their own use until the time that the Plantiff and the said Leonard Trehern accomplish the age of 21. years provided alwayes and upon this condition that the said Griffith and his wife within 3 moneths of his decease enter into bond to the overseers of his will in such a summe and in such a penalty as shall be thought fit by the said overseers and this bond to be made by their advice and if the said Griffith and Anne his wife do refuse to be bound as is aforesaid then the overseers shall have the rents and the profits c. and the jury found over that he made two executors and 3. who were overseers and that the 3. October 16. Iac. died and that within 3. weeks after the death of the devisor the executor read the will to the overseers but they found that the overseers did not remember that and if upon all the matter Griffith and Anne his wife had not performed the condition was the question and that if not the reversion was in the Plantiff And the point in law upon the verdict was whether Griffith and Anne his wife ought of their perils to tender the bond within 3. moneths or whether the overseers ought to make the first act and to tender the bond and the penalty for them to seal and Towse Serjeant argued that Anne and Griffith her husband ought to tender the bond at their peril for he said that the condition did precede the estate and therefore if they will have the benefit of the devise then he ought to tender the obligation and vouched Corbets case and 18. Eliz. the devise of land upon condition to pay money he ought to pay that at his perill Attoe Serjeant contrary and yet he agreed that if the condition was to precede the estate then the law was as Towse had said but here he said the estate precedes the condition for all the profits are devised to Griffith and to Anne his wife during the minority of the Plantiff by which it is apparent the estate is presently in the devisees and by consequence the estate precedes the condition and then the sole doubt will be whether Griffith and Anne his wife ought to procure the overseers to make the obligation and to limit the condition or whether the overseers ought to make this first they being the parties instrusted by the Will
doth not lye for for it is not averred that there was any fellony committed also Iustice Hutton held that in this case the declaration is not good because it is not expresly alleadged with an eo quod that the Plantiff stole the Vetches but only an indictment preferred containing such a matter and Iustice Winch said that the framing of an indictment in a Court of record is not any cause of an action for it is a proceeding in an ordinary Course of justice and for that reason ought not to be punished by an action upon the case for that will deterre and scare men from the just prosecutions in the ordinary way of justice Hobert chief Iustice was of a contrary opinion and yet he said that it is true that the ordinary Course of justice ought not by any means to be hopped or hindred and as that may not be obstructed so neither may the good name of a man in any thing which concerns his life be taken away and impeached without good cause for Courts of justice were not erected to be stages to take away the good name or fame of any man and therefore by the common law if two do maliciously conspire to judict a man without cause though the indictment it self be good and legally drawn yet a writ of conspiracy lies against those which caused this indictment to be preferred and it is as great a slander to preferre a Bill of indictment to the grand jury and to give this in evidence to them as it is to declare that in an ale house and as to the declaration he held that to be good without any averment of an indictment indeed and the indictment in writing and the preferring that to the grand jury containes the scandal and I am of opinion that an action upon the case lyes well see more after Easter 20. Jac. C. P. Hill against Waldron Easter 20. Jac. C. P. HIll against Waldron in an action of debt upon an obligation the condition was that I. S. shall levy a fine to the obligee before such a day of such land the Defendant pleaded that the obligee had not sued forth any writ of covenant the replication was that before the obligation made I. S. had made of feofment in fee of the same land to I. S. and that the feoffee continued in possession at the time of the making of the obligation and upon this the Defendant demurred and in this case two points were moved first when I am obliged that I. S. who is a stranger shall levy a fine to the obligee whether in this case the obligee is bound to sue a writ of covenant and it was argued by Serjeant Harvy that not yet he agreed that if the condition was that the obligor shall levy a fine to the obligee in this case the obligee ought to do the first act viz. to sue a writ of covenant as Palmers case Cooke 5. but otherwise when the fine is levied by a third person for there the obligor had took all upon him 4. H. 7. 15. E. 4. if I am bound to marry the daughter of I. S. and she will not marry me yet I have forfited my obligation and so here he ought to leavy a fine at his perill and at his own costs or at the costs of the obligor But admitting that the obligee ought to sue a writ of covenant because it appears by the replication that before the obligation made I. S. had made a feofment over and that the feoffee did continue possession at the time when the fine was to be leavied and therefore the obligee needs not to sue forth any writ of covenant because he who is to leavy the fine had disabled himself to perform that and he urged Sir Anthony Maines case where Cooke 5. the party needs not to tender a Surrender because that he who had the reversion had granted that over before the Surrender was to be made Serjeant Hendon to the contrary for he argued that the obligation is not forfeit except the obligee sue a writ of covenant and there is no difference between this case and when the obligor himself was to leavy a fine for the obligor had not undertaken for the whole fine but only that I. S. shall acknowledge a fine and if the obligor shall be compelled at his perill to sue a writ of covenant then you will construe the condition to extend to an unlawfull act for it shall be maintenance in him to sue forth a writ of covenant he vouched a case P. 4 Iac. Rot. 1548. Burnell against Bowle the condition of the obligation was that I. S. shall acknowledge a judgement in this Court to I. D. and in debt upon this obligation the Defendant pleaded that the Plantiff had not sued forth any orginall writ and it was holden a good plea and for the second point he held that the obligee ought to sue this writ of Covenant though that I. S. had dismissed himself of the land for the words are general that I. S. shall leavy a fine and this he ought to do though no estate pass by the fine for a fine upon release shall be a good performance of the Condition but otherwise if it had been to make a feofment in fee for a man cannot make a feofment except he be seised of the land at the time as 31. E. 3. debt 164. a man was obliged to present the obligee to such a Church and the obligee took a wife by which he had disabled himself to be a person yet the obligor ought to present him for otherwise he shall forfeit his obligation and so in this case Hobert and Hutton as to the first point held the barre to be good and that the obligee ought to sue forth the writ of Covenant for Hobert said he ought to do that for it is no reason to compel the obligor who is a stranger to the estate which passeth by the fine to sue a writ of Covenant and for that reason if I am bound to compel you to come upon such land to take a feofment I am not bound that the other make a livery of seisin but if the case was that I was obliged to you that I. S. shall leavy a fine to I. N. in such case the fine ought to be leavied at my peril though that I. N. will not sue a writ of Covenant Hutton according but Winch doubted of the case and as to the second point Hutton and Hobert agreed that the obligee as this case is needs not to sue a writ of Covenant because that I. S. had made a feofment of the land before and so had disabled himself at the time of the obligation for now it is impossible to leavy a good fine for if he should enter into the land and put out the feoffee this were not good within the condition and Hutton said it ought to be agreed that if I. S. had made a feofment after the time of the making
reversion for life of the Grandfather is no dispensation to the estate of the lessee for though the action was suspended during his life yet now it is on foot again and in many cases an estate may be dispunishable of waste and yet by matter ex post facto this shall be punishable viz. where the first privitie of the estate was determined as in case a lease for years be without impeachment of waste and then the lessor releases to the lessee c. the first privity is gone and he is now punishable in an action of waste and here in our case there was no absolute dispensation but only for the time and yet perchance though the estate is subject to waste in the creation yet if the lessor will afterwards by his deed grant that this shall be dispunishable this may priviledge him but here is no such matter in the case at the bar and of this opinion was the Court and Winch said that there was no difference where the Franke tenement is intercedent for if this be not punishable yet the particular estate shall not participate of that priviledge of him in the remainder and Iones Iustice said if the particular estate had been extracted and drawn out of that estate for life in that case that had been dispunishable but it was agreed by Hendon Serjeant that the Plantiff in his declaration had declared of a waste after the estate for life was determined and they found that this was made in the time of him in reversion for life and so differed but the Court was of opinion that this was nothing to the purpose for it is only a variance from the time and not from the matter for it is not material whether this was before his death or after his death because in both cases this is punishable but day was given over to shew other causes Portington and Beamount IT was argued clearly in the case between Portington and Beamount that if the Court of the Councel of York which is a Court of equitie do decree against a maxime in law as against a joynt Tenant who had that by Survivorship that the heir of his companion shall have the Moietie that in this case a prohibition shall be granted except that during the lives of the parties it was agreed that there shall not be any Survivorship and then they hold plea upon that equitie and then good In Dower it was agreed clearly that if the Tenant shew that before the husband any thing had in the land A. was seised of the same land in fee and leâ— that for years rendring rent and granted the reversion to the husband of the Plantiff who died seised of the said reversion and so demanded judgement if the demandant shall have Dower c. this is no plea in bar of Dower but proves she had title of Dower but this saves the lease for years and she shall have judgement only of the reversion and of the rent and also she doth save to the Tenant damages and the demandant shall be indowed of the reversion Summers against Dugs SUmmers brought an action upon the case upon a promise against Dugs and he shewed in his declaration that the Defendant was rector of the Rectorie of D. and that he and all his predecessors had used to have all manner of Tithes and said that he the Plantiff occupied 100. acres of land in the same parish and shewed that the Defendant promised to the Plantiff that in consideration that he would plant his lands with Hops and so make the Tithes to be the better the Defendant promised to the Plantiff to allow him towards every acre which he shall so plant 40. s. towards the charge in planting them and he shewed that he planted an acre at the request of the Defendant and so upon the promise brought the action and now it was moved whether this was a good consideration to ground an action because the Tithes are not bettered by the planting of that with Hops but by the growing of them and the increase of them and he had not averred that the Tithes were of better value then they were before and it was also moved that he may not have an action for the Rood c. but this afterwards was referred to Arbitrement but the Court said if the Plantiff had shewed in his declaration that he might have made more benefit of that by other means then that by the planting of it with Hops the Tithes also being bettered then it had been more cleare Philip Holman against Tuke PHillip Holman was executor of George Holman and he brought an action of debt against George Tuke and declared upon a lease made by himself by the name of Philip Holman executor of the Testament of George Holman deceased of such land and the said land was delivered to him in execution of a Statute by extent which Statute was made to this Testator and this lease was for years if the Plantiff should so long continue seised by force of the Statute and it was rendring 100. l. per annum and for 3. years rent behinde he brought his action in the debet and in the detinet and also in the declaration he averred that he did continue seised so long by vertue of the extent and Serjeant Bing demurred in law because he said the action ought to be brought in the detinet only because he had brought the action as executor but Hendon and the Court c. Iones and Hutton to the contrary because the lease was made by himself and Hutton said in the case there is difference between a personal contract and real and it was said that an executor shall never be forced to bring his action in the detinet only where he need not name himself to be an executor which note well It was agreed in a case by Hobert that where a man brought an action de parco facto and declared upon the breach of a pound and also of the taking out of beasts and the Defendant as to the taking out of the beasts pleaded not guilty and as to the breaking of the pound he said that he was Lord of the Soil upon which the pound stood and thaâ— he brake of the Lock and put a lock of his own and Hobert said in this case that he ought to plead the general issue for in verity this is not any broach of the pound except the beast come out of it and Iones Iustice was of an opinion that if he put out the beasts he may not have this action because the freehold was in him but he ought to have a special action upon the case Entred in Easter Term in the 19th year of King James Rot. 1672. Ellen Goldingham against Sir John Saunds ELlen Goldingham brought an action of Dower against Sir Iohn Saunds to be indowed of the third part of the Mannor of Goldingham and he vouched the son to warranty as son and heir to Christopher Goldingham husband of
the year and afterwards the money not being paid Hickman sued forth a Capias ad satisfaciendum against Sir William Fish directed to the Sheriff of Bedfordshire for 210. l. and now upon a habeas Corpus Sir William Fish was brought to the bar and Serjeant Crawley moved for a supersedeas for him because the writ emanavit improvide c. and by the Court it is a cause to discharge him of the execution for the Capias ought to have issued for 200. l. only and he ought to have sued a scire facias though this was after the year because the Proces was not continued but they said withall it was in their discretion whether they will grant a supersedeas for they may put the Defendant to his writ of error It was ruled that if an action of debt was brought and the venire facias to trie the issue is in placito debiti and so is the habeas Corpus and the Pannel but in the Iury Roll of the nisi prius at the latter end of the jurata there it is placito transgressionis and agreed in this case this is amendable or in this case it is good without amendment Wen against Moore THomas Crew Serjeant did move in arrest of judgement where one Wen brought an Action upon the case against Moore and upon non assumpsit it was found for the Plantiff and he said that the Colloquium was laid to be at Bourn in the Countie of Lincoln and the venire facias was de Vicineto de Born without the letter u. and for that reason that they are several Towns therefore error for if the entire Town is omitted the trial is insufficient but the Court held this to be very good without amendment and shall be intended to be the same Town It was moved in arrest of judgement by Serjeant Finch that where one had brought an Action upon the case against one and shewed that the Defendant in consideration of 12. d. given to him by the Plantiff he assumed and promised that if the Plantiff may prove that he cut quandam arborem upon the land of Sir Francis Vain tunc crescent that he would give to him 10. l. and this being proved by the Plantiff it was now moved in arrest of judgement that quandam arborem is an individual tree and it ought to be aliquam arborem and another cause was alledged because it was not shewed that this was upon the land of Sir Francis Vain then growing but only he had said growing and that may be for perchance he purchased the land afterwards and before the Action brought and so it might be growing though not tunc crescent at the time of the promise but the Court c. Winch Hutton and Harvey seemed that the declaration was good for they said there is no question if quandam had been out this had been good for it is the singular number and he that certain or be that incertain yet by the verdict it is made certain that this is a tree and also those words tunc crescent do refer to the time when the tree was feld and not to the promise Holman against Sir Thomas Pope and Elizabeth his wife SErjeant Hendon moved in a case where an Action was brought by one Holman against Sir Thomas Pope and Elizabeth his wife as daughter and heir to Sir Thomas Watson and pending the writ Pope died and he moved that the writ ought not to abate because it is brought against her as daughter and heir where the land is assets in which the husband had nothing like to the case of an Executrix who brings her action in her own name and the name of her husband and pending the writ the husband dies the writ shall not abate but Justice Harvey said this case of Executors was adjudged against him and Hobert chief Justice was of opinion that the writ shall not abate but day was given over in that case Sir Thomas Holbeach against Sambeach IN the case between Sir Thomas Holbeach and Sambeach in a replevin where a demurrer was joyned the case was this one being Tenant for life and he in remainder in tail joyned in a grant of a rent in fee out of that and then they joyned in the levying of a fine to a stranger and his heirs and in this case it was said that the estate of the grantee of the rent which before was determinable is now made absolute and a judgement was also cited to be in that case lately adjudged to which the Court seemed to agree and they said if this be the point they will give judgement presently Crompton against Philpot. HEndon Serjeant moved in arrest of judgement in a case for Philpot a crier of this Court where one Crompton had recovered 40. l. damages against him in an action upon the case for words spoken against Crompton c. he innuendo the Plantiff stole a ring and had been hanged for that but for me and it was said in the first place that it doth not expresly appear that the words were spoken of the Plantiff himself neither is this introduced by any precedent Colloquium as it ought for otherwise the innuendo will not aide it but in veritie the declaration was that the words were spoken de eodem Richardo innuendo c. and also he said that the words are not actionable because that no value is exprest but it was ruled if that were but petie Larcenie the action lies but the Court gave no absolute opinion in the case for they were willing to compound for the poor man The residue of Michaelmas Term in the two and twentieth year of King James Brown and Ware against Barker BRown and Ware brought an action agaist Barker and they declared that whereas there was a suit depending between the Plantiffs and other Coppiholders of such a mannor in the Chancery against Brook their Lord and that one Woolsey was there Clark and that he for his fees and for the procuring of a decree had disbursed 14. l. and that there being a Communication between the Plantiff and the Defendant concerning the same he being a Coppiholder of the same Mannor that in consideration that they would pay to Woolsey 14. l. he would pay to the Plantiffs 40. s. upon request and the Plantiff shewed that they had paid the 14. l. and that the Defendant had not paid the 40. s. Licet postea saepius requisitus fuisset and upon non assumpsit pleaded it was found for the Plantiffs and now it was moved in arrest of judgement by Crook Serjeant First because he is a stranger to the suit for he had not alledged that the Defendant was a partie and then it is no consideration but this was over-ruled because they paid the 14. l. upon his request the second exception was that this postea saepius requisitus was not sufficient in this case because that he ought to express the certaintie when and the place where the request was made
ought to maintain the award but to shew the breach for it shall be otherwise if it be found against him and then Hendon answered to the other exception that this is not for direct usury but is rather for the damage which he sustained by the forbearance of the money and yet if it were for interest it is good and then as to that which now had been agreed by my brother Bridgman that contracts and obligations for usury are good I say then by the same reason an award for that is good for whatsoever a man may contract for the same thing may be awarded if the contract will bear that and usury is not malum in se but only malum prohibitum and is good by our law and here in this case though the Arbitrator was deceived in the summe yet after the award made it is altogether certain and an implied recompence is sufficient in this case but the Court said that the casting up of the accompts did not make an award for it is not a good Calculation but the ending of the controversies that doth make the award but yet the opinion of the Court in this case was that the award was good for an Arbitrement shall not be taken absolutely upon the bare words and the Court did command the parties to come before them upon the morrow in the Treasury and as it seems this was for mediation to make an agreement for the opinion seemed to be for the Plantiff The case of Hilliard and Sanders argued by the Court. IUstice Harvey this Term did argue the case of Hilliard and Sanders which see before and after a brief recital of the case he said that his opinion was that the avowant shall not have return because that by the fine of the lands the rent is extract and I am induced to be of this opinion by two things the first is the agreement and tâ—e other is the favourable exposition of the Statute of fines to settle repose and quiet and I will first shew the efficacie of fines at the common law 21. Ed. 4. the Pryor of Binghams case it is laid for a ground and rule in law if a thing be contained in a fine either expresly or implicitly this is very good and so is 44. Ed. 3. 22. 37. H. 6. 5. for a fine is no more then an agreement and therefore it is called in latin Concordia and then see if by any words you may pass this rent by the fine and though the word rent is not there yet if it be so infolded in the lands that is good with that it is very good and for that 3. H. 7. 16. 17. 21. H. 7. proves that by a feofment of the land the rent doth pass and wherefore not by fine then and this shall be within the Statute of 4. H. 7. and 32. H. 8. and a case may be out of the Statute of 32. H. 8. and yet be within the Statute of the 4. H. 7. as the 2. Ed. 3. in Dyer though the feme after the death of the husband she may enter upon the discontinues of the husband yet if she do not within 5 years she shall be barred and now you see that the construction of these Statutes was alwayes to settle repose and quietness for if such a construction should be made according to the opinion of Chornton in Smith and Stapletons case then it will be mischievous and for his opinion it was only in the way of arguing and yet I conceive he had the good opinion of the Reporter and without all question it is a case of as hard a construction as that is of Archers case where the heir who nothing had in the land in the life of his father did levie a fine this is a bar for ever and the reason is because it is of a thing which is intailed and he cited a case in Bendloes Reports where a discontinuee was disseised by Tenant in tail who levied a fine and the discontinuee entred and then proclamations passed that in this case the issue was barred truly I do agree the case of 36. H. 8. that that a fine levied of land did not bar him who had title of Common or a way the reason is because there is no privitie but in our case there is a privitie and by Margaret Podgers case a Coppiholder is within this Statute and in our case the rent passeth especially in regard of the agreement as in the Lord Cromwels case and he cited a case primo Jacobi between Gage and Selby in an ejectione firme where Gage was Tenant in tail and he levied a fine to I. S. in fee and after he levied another fine to the use of himself for life the remainder over and his brother brought a writ of error to reverse the first fine and ruled that he may not for the second fine had barred him of any writ of error and so I conclude the fine had extinguished the rent The argument of Justice Hutton to the contrary HUtton contrary the fine had not barred the rent in which I will consider the nature of fines at the Common Law and they were of mightie and great esteem and force as appears by the great solemnitie which is used in them as is prescribed in the Statute of fines 18. Ed. 1. de modo Levandi fines and he agreed that such a fine by Tenant in fee simple will pass that inclusively for by the release of all his right in the land a Signiorie is gone I agree also that a fine is but an agreement but yet it must work according to the nature of the thing as upon a writ of Measne or of right of advowson a fine may be levied and yet it is not levied of the lands but of the advowson or Signiorie and so if the writ of covenant be one thing and the agreement of another thing then it is not good and first I will prove that at the Common law fines have been rejected when the writ of covenant did not contain the thing of which the fine is to be be levied and if at the Common law a fine was levied of rent there ought to be a writ of covenant of that 18. Ed. 2. fines 123. and there the rule is given that it is against reason to hold covenant of that which never was and the rent there never was before but ought to begin then and yet it is clear a man may create a rent by fine but he shall not have a writ of covenant of that when it was not in esse before and because the concord may not varie from that therefore it was not received 38. Ed. 3. 17. Knevet put the rule that a fine may not be of more then is in the writ of covenant and when a fine is properly levied of that it is by way of release Fitz. fine 100. and so I conceive here the rent doth not pass Secondly here no man may plead that any fine is levied of
this rent for this is forced in by the name of land which is absurd and contrary and here is not any fine levied directly of the rent nor any Silver of the King paid for that but only by the judgement of consequence and now for the Statutes of fines whether it is a fine within these Statutes and I hold that it is not and I am of opinion that if the rent had been behinde before all the dayes of proclamation pass and the issue had accepted that he is remitted and the same law is if Tenant in taile of such a rent and he acknowledge such a fine with proclamations and the proclamations pass now if his issue had accepted the rent before the proclamations passed he is remitted and now for the Statute of 32. H. 8. that is not taken by equitie because it is a Statute of explanation which regularly may not be inlarged and so appears in Butler and Bakers case and now for the agreement it self that is not any thing for this is by a contrary name which may not be good like to the case of the Lord Cromwel for there was an agreement to raise a rent by fine but here is an agreement to pass a rent by another name and will any man say that if a man agree to levie a fine of rent by the name of an advowson that this will pass the rent and I think that the case of Thornton is good law and so is also the case which is put after that of the advowson and yet I agree if Tenant in tail do accept a fine with render to another for years that shall bar him because that doth not work a discontinuance but otherwise where it is for life and so in my opinion the rent remains and the avowant shall have judgement The argument of the Lord chief Justice Hobert HObert to the contrary the short question is whether the rent is extinct by the fine of the land and I hold that it is and it is agreed it is a bar against the parties themselves though not against the issue and that being granted I see no second reason wherefore the issue shall not be barred and first I am of opinion that this plea of not comprised it is not good because this fine doth work by way of release but it was said at the bar that things ought to pass litterally in a fine which I denie and also every informalitie of a fine which is cause to reject that is not a cause to frustrate that when that is levied and the words of the Statute are of any lands Tenements or hereditaments any wise intailed and if there be any word in the conveyance which will carry that it is sufficient and it shall be put upon the construction of the law and as to that that the fine shall be according to the writ of covenant but I say if there be no writ of covenant then there is no departure but it was said that the Silver of the King was not paid which I also denie for it was paid inclusively and the words of the Statute are of any thing any wise intailed and Tenant in taile had as great power to pass that by fine as Tenant in fee simple and for the case of Thornton I know he was a learned man but let it suffice that he was so esteemed but for his opinion I do utterly denie that and I do denie the case put by my brother Hutton of the Piscary for I hold if a man had a Piscary in another mans land and levies a fine of that by the name of land this will pass the Piscary clearly and so the same if a man have an office appertaining to land intailed and a fine is levied of that by the name of the land this shall bar the issue and I denie that Statutes of explanation shall alwayes be taken litterally for it is impossible that an Act of Parlâ—ament should provide for every inconvenience which happens and so the case of Godfrey and Wade adjudged that the fine of the youngest son may not bar the eldest and yet within the words the eldest was heir to him but this word heir shall be expounded as his heir and so we use to expound the Statute of 4. H. 7. which is an original Statute and bindes parties and privies and here the eldest brother is not privie for he claimes before him and so I conclude that the rent is gone and judgement was given accordingly Sir Robert Hitcham against Brooks SIr Robert Hitcham Serjeant of the King brought an action upon the case against Brooks and set forth in his declaration that he was one of his Majesties Serjeants at law and that the Defendant spoke these words of him I doubt not but to prove he innuendo Sir Robert Hitcham hath spoken treason and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Hendon first because it is not a direct affirmation that he spake treason but he doubts not but to prove that like to Penticosts case which was adjudged here where one Baker said of him I will prove that Penticost was perjured and no action will lie because he did not directly affirm that he was perjured Secondly because he had not shewed when he spoke those words and perchance it was in his infancie or lunacie or before the general pardons Thirdly here is not any allegation of any conference had of the King before and the speach of Treason is not Treason but when there is an intent to commit that and words shall be taken in the best sence as the case of Stanhop Cook 4. and so in the case between the Earl of Shrewsbury and Sir Thomas Stanhop one laid to Sir Thomas Stanhop that the Earl is a subject nay said Sir Thomas that is his grief and adjudged those words are not actionable and yet the words might be taken as if he had repined to have a Soveraign but the words were taken in the best sence Finch to the contrary this is more then a bare affirmation for he said he doubted not but to prove that asmuch as if he had said I am sure of that and Mich. 16. Iac. Sidnams case where one said I think in my conscience that if Sir Iohn Sidnam might have his will he would kill the King and all his good subjects and adjudged upon a writ of error brought of that the words are actionable and so in Whorewoods case so sure as you beleeve that God rules the world and that the King rules the Kingdome so sure did Whoorwood steal such goods and adjudged to be actionable and yet perchance the partie to whom he spake did not beleeve either of them and so Woods case 18. Iac. I will call him in question for killing of a man I will pawn my shirt but I will hang him and so here and prayed judgement for the Plantiff Ashley Serjeant contray words which may be taken
of Tithes and good because they are a spiritual bodie 65 In a Prohibition upon a suit for a Legacie the Executor shewed he had not assets to pay the debts and the spiritual Court would not allow that allegation yet no Prohibition 78 Prohibition to the Marches of wales because a Legatee sued there for 500. l. good before a decree but not after 78 Prohibition see Court of equitie c. 79 Prohibition to the Marches of Wales for requiring an accompt of an Administrator 103 Proces against two Obligors by several precipes and thereupon several Executions whether the writs are well awarded 112 A parco fracto where it lies against the Lord of the Soil and where not except the Cattle come out 80 81 Prohibition to the delegates a pardon not allowed of there 125 Q IN a Quare impedit adjudged that nothing ought to be questioned after induction the spiritual Court there 63 R TEnant in tail sells to I. S. in fee who sells to the heir of Tenant in tail being of full age the father dies if the son be demitted 5 A replevin c. the Defendant saith that all those c. had used to have pasturage in c. when it was not sowed the Prescription is good 7 In a return of Rescous there needeth no addition 10 Replevin for rent issuing out of six acres the avowant must prove that the grantor was seised of 6. acres or more 15 Replevin in the Plantiff claimeth propertie without that the propertie was in the Defendant the Traverse not good yet judgement for the Plantiff because after verdict 26 In Return of an extent by the Sheriff surplusage hurteth not 27 Replevin the Defendant avowed for homage and shewed not how it was due if good 31 Replication although evil where the Plantiff shall have judgement if the Defendants plea be vitious 37 A Riotous quarrel about an arrest between the Sheriffs Bailiffs and the Bailiffs of the Marches of Wales 72 Release an avowrie not good without pleading it by deed 72 A Rent-charge granted and a Covenant if it happen to be behinde then the land to be alwayes open to distress whether this be a distinct covenant or not 74 87 Replevin for rent the Defendants say that the land was parcel of a Chaunterie which came to the King by the Statute wherein the right of others was saved the Plantiff replies that the land is out of the fee of the Defendant no good plea but he might have Traversed the Tenure that at the making of the Statute the land was not holden of him 77 A Record amended where the bargain and sale and deed of uses were by the right name but the writ of entrie was of another name 99 100 Rent granted in fee by Tenant for life and him in remainder in tail levied a fine a good grant 102 Rent-charge whether it be extinct by a fine of the land to the Ter-tenant and a release unto him 109 110 111 121 122 S SCire facias the Defendant pleads a feofment the Plantiff traverses and the jury found a feofment to other uses whether this shall be intended the same feofment which was pleaded 32 Scire facias by an Executor upon a judgement for the Testator the Defendant cannot plead the Testators death between the verdict and judgement but he must bring a writ of error 48 Simonie a grant of a next avoidance for monie the Parson being readie to die is Simonie 63 A Sheriff by force of a Capias utlagatum to inquire what lands c. cannot put the partie out of possession 78 Statute-Merchant if good in regard no day of payment is limited largely and learnedly argued by the Court 82 83 c. Servant taken away See Trespas T TIthes See Prescription Trespass the Defendant saith that I. S. was seised in right of his wife and that she died seised and that he as heir c. the Plantiff replied that she died not seised he ought to have said that she died not sole seised 7 Trespass in Yorkshire Justification in Durham without that that guiltie in Yorkshire good because it is local 7 A Traverse to a presentation where good and where not 13 14 Tenure where it is Traversable and where the seisin 18 Tithes not due of Cattle for the diarie 33. Trespass for Beasts taken in London Justification upon a lease of land in Kent Replied that the Defendant sold them in London no good plea to bring the trial out of Kent 48 Trespass for taking ones servant lieth not upon a private retainer otherwise if it were at the Sessions 51 Tithe giuen by the Pope to the Vicar and the Copie of the Bull only was shewed in evidence not good 70 Tithes cannot be appurtenant to a Grange except the Grange be the Gleab 72 73 Traverse where good and where not 113 U VEnire facias omitting part of the venue if good 34 Variance between the writ and Declaration where good 35 A feofment to the use of A. for life and after to the use of his daughter till B. pay her 100. l. here the daughter hath no remedie for this 100. l. without a promise 71 A Ventre inspiciendo awarded and returned but the Court would not agree that she should be detained from her second husband but attended by divers women till her deliverie 71 Variance between the venire facias and the Sheriffs return no judgement in that case 73 W IN Waste judgement by nihil dicit and upon an inquirie the jury found 8. s. damages what judgement shall be given 5 Wager of Law upon a Bill of Exchange 24 Writs a difference wherein there is an error in the original and where in the judicial writ that is amendable 73 Waste although for a time it is punishable yet after the action may revive 79 86 Writ against husband and wife as an Inheritrix the husband dies if the writ abate 102 Errata PAge 1. line 2. 27. for do read Doa p. 2. l. 4. r. lieu p. 4. l. 2. 22. r. 300. pa. 8. l. 36. r. Hendon and so throughout p. 12. in the Title r. Duncombe against the Vniversitie of Oxford p. 12. l. 14. r. 38. H. 8. cap. 39. p. 14. in the Title r. Sir George Savile against Thornton p. 15. l. 21. r. communication p. 16. l. 12. r. 7. Jac. cap. 5. p. 17. l. 47. r. Maines and l. 17. r. sic and also p. 17. 18. in the Margent r. Trin. p. 21 l. 51. r. 39. Eliz. p. 23. l. 9. r. till p. 26 l. 28 for writ r. Action and for Action r. writ p. 27. l. 12. for he r. they p. 28. l. 34. r. may not p. 29. in the Margent r. Easter p. 29. l. 33. for S. r. N. p. 33. l. ultim r. Moore p. 36. l. 43. r. Titterels p. 45. l. 20. r. demandable p. 50. l. 35. r. Bar p. 51. l. 22. r. a penalty p. 53. l. 16. r. may not p. 54. l. 44. r. Estate p. 57. l. 19. r. in our case p. 58. l 50 r. 16. E. 4. p. 68. l. 5. r. estray p. 71. l. 26. r. 12. Note in p. 72. l. 7. Wolseys case ought to have been printed by it self p. 77. l. 4. r. avoided p. 88. l. 4. r. Finch p. 90. l. 15. r. continuance p. 100. l. 21. for preservation r. perswasion and l. 34. for entire r. entrie p. 109. in the Margent for Trin. r. Mich. p. 112. l. 25. r. thought p. 114. l. 18. for interested r. interest
son and his wife and upon a demurrer the question was whether this Covenant did raise a present use to the Son and to his wife or whether this only rests in Covenant and Harris Serjeant argued that no present use will arise by this Covenant for first all other Covenants in the indenture are in the future for the words are that the lands shall remain and come c. and therefore till the death of the Covenantor the fee simple is in him and no use will arise for it shall be in the election of the Covenantor what estate he will make to his Son for he himself shall interpret his intent and the difference in our books is when the words are in the present tense and when in the future and for this he cited 22. H. 7. by Iustice Rede if a man Covenant that land shall discend remain or revert he said this did not give any present interest because the wors are in the future and it is in the election of the Covenantor how and in what manner the land shall pass and there he put the case that if I give my horse or my Cow to I. S. there the Donee had election to take at his pleasure the one or the other because the words are in the present tense but if the words are that I will give a horse or a Cow there the Donor had election which he shall have because the words are in the future the Lord Borroughs Covenanted 34. H. 8. Dyer 55. with another in frank marriage with his son that immediately after his death his son shall enjoy the use of his land of inheritance according to the course as then they stood and the question was whether the see simple was presently out of the Covenantor and the opinion was that it was not because it was but a Covenant and did not change the fee simple and so is Dyer 96. Sir Thomas Seymor promised and Covenanted by indenture in consideration that the Covenantee had granted land to him that he would leavy a fine to Wimbish and Pennoy of other lands which fine should be to Sir Thomas Seymor for life the remainder to the Covenantee in taile and no fine was levied and the question was whether any use was raised by this Covenant to the Covenantee and the opinion of the book is that not because it is in the future and he cited the 20. H. 7. 10. the Duke of Buckingham in consideration that the Lord Henry his brother was to marry the Lady Wiltshire he Covenanted with Bray and with others that the Mannors of D. and of S. shall be to the Lady and to her heirs of her body begotten by the said Lord and after the Duke granted to the Lord Henry and his wife for their lives and it was argued whether this second grant is good or no for if it is then the first Covenant will not work to raise an use to the feme and the book left that as a quere and if it be then he argued that in the principal case no present use is raised but that this rests meerly in Covenant and so he prayed judgement for the Plantiff Serjeant Hendon to the contrary for he thought this will raise a present use and that this was the intent of the parties that this should raise a present use for the intent was to advance them first during their lives with the rent and after the death of the Covenantor and his wife with the land it self and therefore of necessity this will raise a present use for a bare action of Covenant may not be any advancement at all and the rather here because they who take benefit of this are strangers to the Covenant and not Preston himself for as it appears by 3. H. 7. a stranger shall not take benefit by a Covenant and therefore he said the intentions of the parties was to raise an use for otherwise there shall be no advancement at all And further the words in the indenture are Covenant and grant and if no use is raised then this word grant is idle and every word shall be so expounded that they may take effect and the word Covenant is insufficient of it self to pass an estate in land or to have any estate in signification other then to a meer Covenant and to be obligatory as is put Co. 2. Cromwels case Tirrels case there vouched a lease for years provided and it is Covenanâ—ed and agreed there the Covenant is a condition and also a Covenant and 8. Ass 1. 12. it is agreed that if I Covenant that an other shall have my land for 7. years this a good lease of the land it self and it was adjudged here Tr. 2. Jac. Rot. 1696. accordingly and in our case this word Covenant and grant is also sufficient to raise an use and to give an interest in the land it self and yet he agreed that if there was an other act to be made by the Covenantor or the Covenantee that then no use will arise but it shall rest only in Covenant Dyer 162. there are Covenants between the Lady Vere and Sir Anthony Wingfield her son that the said Lady would convey to her son by a recovery and that after 6. moneths the said Sir Anthony shall make an estate to his Mother for life and there it is doubted whether the use is changed within the 6. moneths and it was holden that it was not Mich. 20. Jac. C.P. for then it is impossible that the Covenants should be performed and in that case it is in the power of the Covenantor to make an act that the Covenants shall not be performed and therefore Covenants will not raise an use but in our case no act of the Covenantor may hinder that this use shall arise and therefore good and for that the difference is Dyer 296. which is entered 11. Eliz. the Roll of which I have seen the father upon the marriage of his son promised to the friends of his wife that after his death his son shall have his land to him and his heirs and the book is ruled that this did not change the use and the reason was this Covenant was by words and not in writing but it was not doubted if this Covenant had been by writing but that the Covenant will raise an use which is all one with our case and so was Callard and Callards case 37. Eliz. stand forth Eustace reserving to my wife and my self I give to thee and thy heires and there it was doubted whether any use will arise to the son and ruled that not because this was by words only but it was also agreed that if these words had been by writing they had been sufficient to raise an use to the son and he cited Dyer 232. before the Statute of the 27. H. 8. A Covenanted and agreed with B. that upon the marriage of his son with the daughter of the other that he would retain his land for life and that
of the 4. H. 7. cap. 24. the demandant replied that 15. Iac. she brought a writ of Dower against the now Tenants and against two others and that the writ abated by the death of the two others and that she brought a writ by Iourneys accompts the Tenant replied that the others were not Tenants but one Sir Iohn Web and it was moved that this rejoynder was evil for they confessed that they themselves are Tenants by which the writ is good against them at the least Hobert if she brought a writ of Dower against one who is not Tenant that is not any claim within the Statute but if she brought a Dower against 4. who are Tenants and two die and she bring a writ against the others by Iourneys accompts this is a good claim within the Statute though the second writ was after the time limitted but quere here if the two who died were not Tenants Trin. 21. Iac. C. P. Harvey against the Hundred of Chelsam HArvey brought an action upon the Statute of Winchester of Hue and cry against the Hundred of Chelsam and it is found for the Plantiff and a writ of error was brought and all the record was certified and now the Plantiff prayed two things may be amended the first is the title of the action for upon the roll it is an action upon the case it should be an action upon the Statute but it was said by Hobert that it shall not be amended for the Statue of the 18th of Eliz. did not give amendments upon indictments or upon popular actions or actions upon penal Statutes and cited a judgement in Doctor Husses case Coo. 9. 71. which was reversed in Banco Regis upon default in pleading being upon a penal Statute and so in Mich. Term last Judictari for Indictari and adjudged that it shall not be amended and the second point was upon the venire facias where was one Gregory retorned as appears by the names of the Iury but the Clark of the Assise returned one George and it was entered upon the roll and certified in the record to the Kings Bench and per totam Curiam there needs no amendment for that name of George where it should be Gregory being in the tales de circumstantibus and not in the principal panel and it was also by consent of the parties and as to the first point all the Court agreed with Hobert and for the second point Hobert said that if that variance had been material it should not be amended for we will not make a new certificate for the Court of the Kings Bench may choose to credit the first or the second certificate and so we submit our judgements to the censure and pleasure of another Court which we will not do and in the great case of Fulger 18. Iac. where we made such a new certificate though it was adjudged according to our opinion yet they would not credit our last certificate and therefore we will not make a certificate again which note well Hasset against Hanson HAsset brought an ejectione firme against Hanson and upon a general issue and a special verdict the case was this that one Woodhouse was lessee for years of the King of a Mannor and I. S. was a Copiholder of a Tenement of inheritance and the Coppiholder bargained and sold his Coppihold land in such a Town to the lessee of the Mannor and this was by indenture and the indenture was to this effect that he bargained and sold all his lands and Tenements as well Coppiholds as other land bought of Iohn Culpepper in such a Town and it was found that the lessee of the Mannor entered in the Coppihold and occupied and after that the said I. S. died after whose death W. S. his heir was admitted as heir of I. S. upon the presentment of the homage that I. S. died seised and that the said W. is his heir and that at the same Court W. S. Surrendered to the use of the Plantiff and he was admitted and it was argued by Richardson for the Plantiff and by Attoe for the Defendant And these insuing points were agreed by the Iustices S. by Hobert Winch Hutton and Iones and first it was said by Hobert that though a Coppiholder may not convey his Coppihold to a stranger without Surrender and admittance yet he may grant his estate to the Lord of the Mannor out of the Court by bargain and sale for the custome is not between the Lord and his Tenants but between themselves only Secondly Winch said that the admittance of the Lord viz. the lessee of the Mannor amounts to a grant to him who had a title but it is otherwise if it is to him who was in by wrong as by disseissin Coo 4. 22. which was granted by all the Court. Thirdly Iones Iustice said that the bargain is void for it is of all lands and Tenements bought of Iohn Culpepper and it was not found by verdict nor yet averred by the party that the land was bought of Culpepper which Hobert and Hutton granted and Hutton cited 2. E. 4. 29. but Winch to the contrary as to that point but they all agreed that the Plantiff shall have judgement and accordingly so it was done Mich. 21. Jac. C. P. M. 21. Iac. in C. P. Pleadal against Gosmore PLeadal an Attorney of the Common pleas brought an action of trespas against Gosmore and he declared of the taking of a Mare Colt in May and of the retainer till the first of Iuly and that the Defendant held him in Compedibus Anglice in fetters diversis vicibus temporibus by which she Colt was much the worse and the Defendant pleaded that the Countess of Hartford was Tenant for life of the Mannor of Sherstone within which the taking of the Colt is supposed to be and that the Lords of the Mannor time before memory c. had used to have estrayes and used to seise them by their Bailiffs and to proclaim them according to the Law of the land and that the said Mare Colt came within the Mannor such a day and the Defendant as Bailiff to the said Countess seised that as an astray and made proclamation according to the Law and when the Mare Colt was so fierce and wild that he could not came that nor keep that out of the lands of his neighbours he Fettered her as to him bene licuit and he detained her till the first of Iuly at which day the Plantiff came to him and told him that this was his Mare Colt upon which the Defendant delivered her which is the same Trespas c. and upon that the Plantiff demurred and Attoe argued that the plea was not good for matter of Law for a man may not Fetter an estray Colt as appears in the like case 27. Assises and the reason is because satisfaction shall be given for his damages which he made to the Defendant and he cited a case adjudged in that point 8. Iac. Trin. between