out of Repair Secondly The whole is Sequestred whereas it ought to have been but in proportion to the Charge of Repairing and should be certainly expressed what it required Thirdly The Sequestration is to remain by the Sentence until the Judge should take further Order Whereas it ought to have been but until the Repairs had been done These Exceptions the Court held fatal and therefore gave no Opinion as to the Matter in Law but did incline that there could be no Sequestration for being made Lay Fee the Impropriation was out of their Jurisdiction and it was now only against the Person as against a Layman for not Repairing the Church And they said in case of Dilapidations the whole ought not to be Sequestred but to leave a proportion to the Parson for his Livelyhood Anonymus IN an Ejectment upon a Special Verdict the sole Point was Whether a Lease for a year upon no other Consideration than reserving a Pepper Corn if it be demanded shall work as a Bargain and Sale and so to make the Lessee capable of a Release And it was Resolved that it should and that the Reservation made a sufficient Consideration to raise an Use as by Bargain and Sale Vid. 10 Co. in Sutton's Hospitals Case Rozer versus Rozer AN Indebitatus Assumpsit pro parcell ' Corii ad specialem instantiam requisitionem of the Defendant sold and delivered to J.S. Et sic inde Indebitat ' existens the Defendant promised to pay Vpon Non assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that there is no Promise laid and no Reason to presume a Promise when 't is the very ground of the Action tho' after a Verdict And admitting there were a Promise yet it being Collateral it did not make a Debt but should have been brought as an Action upon the Case Mo. 702. and Dyer 230. And hereupon Judgment was stayed Tho' as I hear in the King Bench about two years since between Danbey and Kent they held such a Case well enough after a Verdict Quaere Termino Sanctae Trinitatis Anno 33 Car. II. In Communi Banco Page versus Kirke IN an Action of Trespass upon Not Guilty at the Assizes in Suffolk a Verdict was found for the Plaintiff and 10 s Damages and 40 s Costs and Judgment entred accordingly And an Action of Debt was brought upon the Judgment and the Defendant pleaded Specially the Statute 22 23 of Car. II. ca. 9. against Recovering more Costs than Damages where the Damages are under 40 s in Trespass unless certified by the Judge that the Title was chiefly in question the Words of the Statute being If any more Costs in such Action shall be awarded the Judgment shall be void To which the Plaintiff Demurred and the Plea was held Insufficient because the Verdict was for 40 s Costs and not Costs increased by an Award of the Court. 2. If the Judgment were Erroneous yet it was hard to make it avoidable by Plea notwithstanding that the Words of the Statute are Shall be void Termino Sanctae Michaelis Anno 33 Car. II. In Communi Banco Onslowes Case HE brought an Action against a Bayliff being the chief Magistrate of a Corporation for that although he were chosen one of the Burgesses to serve in Parliament for the Corporation by the greater Number c. yet the Bayliff to disappoint him of sitting and to bring trouble c. upon him did return another Person in the Indentures together with him to his Damage c. Vpon Not Guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Action would not lie And of that Opinion were the whole Court viz. North Chief Iustice Wyndham Charlton and Levins for they said they had no Iurisdiction of this Matter the principal part thereof being a Retorn in Parliament No Action before the Statute H. 6. c. did lie against a Sheriff or chief Officer of a Corporation for a False-retorn and the Courts at Westminster must not enlarge their Iurisdiction in these matters further than those Acts give them That there were no Presidents of any Actions at the Common Law save Nevils Case in the late times and Sir Samuel Bernardistons Case both which miscarried In the Long Parliament there were a great many double Retorns but no Actions had been brought which is a great Argument that no such Action lies as Littleton argues upon the Statute of Merton of disparaging an Heir Termino Paschae Anno 35 Car. II. In Communi Banco The Lord Conwallis's Case THE Case was Isaac Pennington a Copyholder of the Mannor whereof my Lord Conwallis is now feised committed Treason in the matter of the Murder of King Charles the First and then about Anno 1655. surrendred into the hands of the Lord of the Mannor his Copyhold Lands to the use of some of his Children who were admitted In 1659. the Mannor was aliened to the Lord Conwallis then came the Act of Attainder 12 Car. 2. whereby Tychburn with other Regicides were attainted and thereby it was Enacted That all their Mannors Messuages Lands Tenements Rents Reversions Remainders Possessions Rights Conditions Interests Offices Annuities and all other Hereditaments Leases for Years Chattels Real and other things of that nature whatsoever they be shall stand forfeited to the King c. Provided that no Conveyance Assurance Grant Bargain Sale Charge Lease Assignment of Lease Grants and Surrenders by Copy of Court Roll c. made to any Person or Persons other than the Wife or Wives Child or Children Heir or Heirs of such Person or Persons c. After which Attainder c. the Lord of the Mannor caused the Lands to be seised and brought an Ejectment The First Point Was whether in Case of Treason or Felony the Lord can seise before Conviction or Attainder And the Court seemed to be of Opinion that no Seisure could be till Attainder without Special Custom but they agreed the presentment of the Homage was not necessary to precede a Seisure or to entitle the Lord to take the advantage of a Forfeiture but in case of a Capital Crime it would be unreasonable and inconvenient to permit the same to be tried or controverted in a Civil Action before the Conviction appeared upon Record Secondly Whether this were such a Forfeiture as the Lord was bound to take notice thereof for if no notice then the acceptance of the Surrender c. would not preclude him from taking advantage of the Forfeiture And the Court inclined that the Lord should be presumed to take notice in this Case as he shall in the Case of Failer of Suit of Court Non-paiment of Rent c. Vide 2 Cro. Matthews and Whetton 233. Thirdly Whether the Mannor being conveyed away before the Attainder shall purge the Forfeiture Iustice Levins said That although no advantage of this Forfeiture can be taken till Attainder yet after Attainder it has relation and
redd ' unius anni mediet ' redd ' unius anni per quem talia terrae vel tenementa sic alienat ' tent ' fuer ' in Manerio praed ' nomine finis pro alienatione and lays a Custom to distrain for the said Alienation Fine and then sets forth an alienation of the said Messuage and Premisses by the said Sir John Sabin to one Walter Tyndall in fee and shews that the said Walter Tyndall made another alienation in fee to one Christopher Yates and so sets forth that there were two Fines due upon the said alienations after the rate aforesaid amounting to 18 l 7 s and 7 d ob and that he as Bayliff of the said Dean and Chapter captionem praed ' bene cognoscit in praed ' loco in quo ut in parcell ' tenement ' praed ' To this the Plaintiff demurred and it was spoken to at the Bar the last Term and likewise this Term The main thing was that the Custom as it was laid was not good for the Alienation Fine is set forth to be due upon the Alienation of any parcel of Lands or Tenements held of the said Mannor to have a year and halfs Rent by which the Lands or Tenements so aliened were held so that if the 20th part of an Acre be aliened a Fine is to be paid and that of the whole Rent for every parcel is held at the time of the alienation by the whole Rent and no apportioning thereof can be but subsequent to the Alienation and this the whole Court held an unreasonable Custom and it is set forth it could not be otherwise understood than that a Fine should be due viz. a year and halfs Rent upon the Alienation of any part of the Lands held by such Rent The Court doubted also whether the Custom was good as to the claiming an Alienation Fine upon an Alienation for Life because by that the tenure of the Lands aliened is not altered for the Reversion is still held as before by the same Tenant Judicium pro Quer ' Colley versus Helyar IN an Action of Debt for 34 l the Plaintiff declared against the Defendant an Attorney of this Court praesente hic in Cur. in propria persona sua upon a Bond of 34 l The Defendant pleads in Bar quoad quinque libras sex solid tres denar of the aforesaid 34 l that the Plaintiff post confectionem Scripti Obligat ' praedict ' scilicet vicesimo c. anno c. ê‘ quoddam Scriptum suum acquietantiae cognovisset se accepisse habuisse de praed Defendente 5 l 6 s and 3 d in part solutionis majoris summae and pleaded a frivolous Plea as to the rest of the Mony to which the Plaintiff demurred And it was argued that the Acquittance under the Plaintiffs Hand and Seal for 5 l 6 s and 3 d part of the Mony due might have been pleaded in bar of the whole and that if the Defendant here had relied upon it it would have barred the Plaintiff of the whole Vide for that matter Hollingwoth and Whetston Sty 212. Allen 65. Beaton and Forrest Note there the payment was since the Action brought and pleaded in abatement where it was said that it could not be so pleaded without an Acquittance Vide Kelw. 20. 162. 3 H. 7. 3 B. receipt of parcel pending the Writ 7 Ed. 4. 15. a. But it seems clear by the Book of Edw. 4. 207. Mo. 886. Speak versus Richards That if part be received and an Acquittance given before the Action it is a Bar only of so much but it seems the Action must be brought for the whole Dickman versus Allen. Cantabr ' ss Case brought against the Defendant for not folding his Sheep upon the Plaintiffs Land according to Custom The Colledge of St. Mary and St. Nicholas seized in Fee jâ—re Collegii ABRAHAMUS ALLEN nuê‘ de Grancester in Com' praedicto Yeom ' attach ' fuit ad respondend ' Roberto Dickman Gen ' de placito transgr ' suê‘ Casum c. Et unde idem Robertus per Robertum Drake Attorn ' suum queritur quare cum Praepositus Scholares Collegii Regalis Beatae Mariae Sancti Nicholai in Cantabr ' in Com' praed ' seisit ' fuissent de uno Capitali Messuagio cum pertinen ' in Grancester in Com' praedicto ac de centum sexaginta acris terrae arrabil ' jacen ' in Communibus Campis de Grancester praedicta cum pertinen ' in dominico suo ut de feodo in jure Collegii sui praedicti iidemque Praepositus Scholares omnes ill quorum statum ipsi habuer ' de in tenementis praed ' cum pertinen ' a tempore cujus contrarii memoria hominum non existit habuer ' habere consuever ' ê“ se Firmariis Tenentibus suis eorundem A Custom for all the Tenants to sold their Landlords Land Tenementorum cum pertinen ' libertatem Faldagii Anglicê Foldage omnium Ovium Ovibus suis ê“priis Ovibus tenen ' occupatorum ê“ tempore existen ' quorundam Messuagiorum Terrarum in Villa de Coton in Com' praed ' qui a tempore cujus contrarii memoria hominum non existit respective usi fuer ' Common of Vicinage intercÌ„oiare causa vicinagii in quibusdam Communibus Campis de Grancester praed ' cum Ovibus suis in super praed ' Messuagiis terris suis in Coton praed ' Levant and Couchant levan ' cuban ' except ' suor ' depascen ' infra Communes Campos territoria de Grancester praedicta a vicesimo quinto die Martii usque primum diem Novembris quolibet anno suê‘ praedictas centum sexaginta acras terras arabil percipiend ' From such a day to such a day faldand ' tanquam ad tenementa praedicta cum pertinenciis pertinen ' praedictisque Praeposito Scholaribus Collegii praed ' de Tenementis praedictis cum pertinen ' The Principal and Scholars demise to the Plaintiff by Indenture in forma praedicta seisit ' existen ' Praepositus Scholares postea scilicet decimo nono die Octobris Anno Domini millesimo sexcentesimo octogesimo primo apud Grancester praedictam quodam Johanne Coppleston Sacrae Theologiae Professor ' adtunc Praeposito Collegii praedicti existen ' ê‘ quandam Indenturam inter ipsos Praepositum Scholares ex una parte quendam Johannem Wittewronge Mil Barronet ' ex altera parte factam cujus alteram partem Sigillo cÌ„oi ipsorum Praepositi Scholarium signat ' idem Robertus Dickman hic in Cur ' profert cujus dat' est eisdem die anno dimiser ' ad firmam tradider ' eidem Johanni Wittewronge Tenementa praedicta cum pertinen ' Habendum habend ' occupand ' praefat ' Johanni Assign ' suis a tempore confectionis Indenturae illius usque plenum finem terminum viginti
ann ' For 21 years extunc ê“x ' sequen ' plenar ' complend ' finiend ' Virtute cujus dimissionis praedictus Johan ' in TenÌ„ta praed ' cum pertinen ' Lessee enters intravit fuit inde possessionat ' Et sic inde possessionat ' existen ' idem Johannes postea scilicet decimo die Augusti Anno Domini millesimo sexcentesimo octogesimo secundo apud Grancester praedictam dimisit ad firmam tradidit eidem Roberto Dickman Tenementa praedicta cum pertinen ' habend ' occupand ' And Demised to the Plaintiff eidem Roberto Assign ' suis a Festo Sancti Michaelis ArcÌ„hi tunc ê“x ' sequen ' usque plenum finem terminum sex annorum extunc ê“px ' sequen ' plenar ' For six years complend ' finiend ' virtute cujus dimissionis idem Robertus in crastino dicti Festi Sancti Michaelis Arch ' Anno Domini milesimo sexcentesimo octogesimo secundo supradicto in Tenementa praedicta cum pertinen ' intravit fuit inde possessionat ' The Lessee Enters usque finem expirationem ejusdem termini praedictus tamen Abrahamus praemissorum non ignarus sed machinans fraudulenter intendens ipsum Robertum minus rite praegravare ac eum de faldagio praedicto ut praefertur habend ' impedire ac de prosicuo commoditate inde totaliter deprivare diu ante finem termini praedicti ult ' mentionat ' scilicet primo die Maii Anno Regni Domini Jacobi secundi nuper Regis Angliae tertio Oves videlicet ducent ' Oves ipsius Abrahami in Communes Campos de Grancester praed ' ibidem depasturand ' The Cause of Action posuit Oves ibidem eun ' depascend ' extunc usque decimum diem Septembris tunc ê“x ' sequen ' existen ' ante finem termini praedicti ult ' mentionat ' custodivit continuavit sed Oves ill ' in aut super praedictas centum sexaginta acras terrae arrabilis ipsius Roberti vel in aut super aliquam inde parcellam minime faldavit sicut ipse debuisset nec permisit ipsum Robertum habere beneficium faldagii earun-praedicto Abrahamo duran ' eodem termino non existen ' tenen ' For not Folding his Sheep according to Custom sive occupatore aliquorum messuag ' sive terrarum in Villa de Coton praed ' de quibus tenen ' sive occupator ' inde ê“ tempore existen ' a tempore cujus contrarii memoria hominum non existit usi fuer ' intercoicÌ„are Causa vicinagii in praedictis Communibus Campis de Grancester praedict ' cum Ovibus suis praedict ' ut praefertur per quod idem Robertus ê“ficuum advantagium faldagii Ovium praedictorum super praedictas centum sexaginta acras terrae arabil ' quibus ipse gaudere debuisset ê‘ tempus illud omnino ê‘didit amisit ad dampnum ipsius Roberti quadraginta librarum inde ê“duc ' Sectam c. Per quod the Plaintiff lost the benefit of Foldage Et praedictus Abrahamus per Richardum Pyke Attorn ' suum ven ' defend ' vim injur ' quando c. Not Guilty pleaded Et dic ' qd ' ipse in nullo est culpabilis de pÌ„missis praedictis suê‘ius ei imposit ' ê“ut praedictus Robertus su ê‘ius versus eum queritur Et de hic pon ' se suê‘ Patriam Et praedictus Robertus similiter Ideo praecept ' est Vic' qd ' venire fac ' hic a die Sanct ' Trin ' in tres septimanas duodecim c. ê‘ quos c. Et qui nec c. ad recogn ' c. quia tam c. Dickman versus Allen. IN an Action upon the Case the Defendant declared That the Provost and Scholars of Kings College in Cambridge were seised in Fee in jure Collegii of a Messuage in Grancester in Cambridge and 160 Acres of Arable Land lying in the Common Fields of Grancester aforesaid and the said Provost c. and all those whose Estate they have in the Tenements aforesaid have time whereof c. for themselves their Farmers and Tenants of the said Tenements libertatem Foldagii Anglicè Foldage omnium Ovium except c. euntium depascentium infra Communes Campos Territoria de Grancester praed ' super praed ' centum sexaginta Acras Terrae ê‘cipiend ' foldand ' tanquam ad praed ' Tenement ' ê‘ertinent ' and then sets forth a Lease made by the Provost and Scholars to Sir John Witwrong of the said Messuage and 160 Acres for 20 years which said Sir John let them to the Plaintiff for six years by virtue whereof the Plaintiff entred and was possessed and the said Defendant Praemissorum non ignarus did put 200 Sheep into the Common Fields of Grancester aforesaid and there kept and depastured them for a certain time sed Oves illas in aut super praed ' centum sexaginta Acras Terrae Arab ' ipsius Quer ' vel in aut super aliquam inde parcell ' minime foldavit sicut ipse debuisset nec permisit ipsum Querentem habere beneficium faldagii earundem and shews how the Defendant was not within exception by which the Plaintiff lost the profit of the Foldage c. and laid it to his damage of 40 l The Defendant pleaded not guilty and a Verdict was for the Plaintiff And it was moved in Arrest of Iudgment that the Plaintiff had not in his Declaration set forth a sufficient Cause of Action for he saith that the Defendant had not folded his Sheep upon the 160 Acres as he ought and it is not set forth that the Custom was for the Owner of the Sheep to bring his Sheep to fold them upon the said Lands But it was objected on the Plaintiffs part that the word Foldagium did imply as much and it was the usage in Norfolk and Suffolk for the Owner of the Sheep to put his Sheep into the Lords Land and fold them there for which the Lord provided Hurdles and prepared the Fold to receive them and of this Faldagium a Fine was levied of inter al' as is reported in 1 Ed. 3. fo 2. and the usage in Norfolk and Suffolk is there mentioned And it was said in a Possessory Action 't is enough to say sicut debuit without setting forth any particular Custom or Prescription And Dent and Olivers Case was cited 2 Cro. 122. where an Action was brought for disturbing of him in taking of Toll ad Feriam ipsius le Plaintiff spectan ' and it was moved after Verdict that he made no Title by Prescription or Custom to the Toll and it was held by the Court to be sufficient in a possessory Action to say ad Feriam suam spectant ' So also in an Action for stopping of a way belonging to his House without setting forth any Prescription between St. John and Moody a
loco in quo c. pro eisdem quadraginta octo libr ' de reddit ' praed ' sic aretro existen ' juste c. ut in terris distriction ' praedict ' Nich. As in Lands charged with the Distress Marsh modo defend ' in forma praedict ' onerat ' obligat ' c. Demurrer Et praedictus Philippus Lade dic ' qd ' per aliqua per praed ' Thomam Baker Nicholaum Marsh superius in advocatione praed ' alleg ' iidem Thomas Baker Nicholaus Marsh captionem averiorum praedictorum in praedicto loco in quo c. justam cognoscere non debent quia dicit qd ' placitum praed ' per eosdem Thomam Baker Nicholaum Marsh modo forma praed ' superius placitat ' materiaque in eodem content ' minus sufficien ' in lege exist ' ad captionem averiorum praedictorum in praedicto loco in quo c. justam cognoscend ' ad quod idem Philippus Lade necesse non habet nec per Legem Terrae tenetur aliquo modo respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' placit ' in hac parte idem Philippus Lade pet ' judic ' dampna sua praed ' occatione captionis injuste detentionis averiorum praedictorum sibi adjudicari c. Joynder Et praedict Thomas Nicholaus ex quo ipsi sufficien ' materiam in Lege ad ipsum Nicholaum captionem averiorum praedictorum in praedicto loco in quo c. justam advocand ' Et ad ipsum Thomam ut Ballivum ipsius Nicholai eandem captionem in eodem loco justam cognoscend ' in advocare cognitione suis praedictis superius allegaver ' quam ipsi parat ' sunt verificare quam quidem materiam praedictus Philippus non dedic ' nec ad eam aliqualit ' respond ' pet ' judicium retorn ' averiorum praedictorum unacum dampnis c. sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedictis hic usque à die Sancti Michaelis in tres septimanas de audiend ' inde Judicio suo eo qd ' iidem Justic ' hic inde nondum c. Lade versus Baker Marsh REplevin for taking his Cattle at Barrham in Kent in a place there called the Fourteen Acrees The Defendant Baker made Conusans and Bailiff of Nicholas Marsh and saith that diu ante praed ' tempus quo c. one Robert Lade was seised in fee of the said 14 Acres and by his Deed indented dated 1 Octob. 24 Car. 1. between him of the one part and Nicholas Marsh Grandfather of the said Nicholas Marsh of the other part and produceth the said Deed in Court in consideration of 100 l paid to him by the said Nicholas Marsh the Grandfather did grant to the said Nicholas Marsh and his Heirs an annual Rent of 8 l to be issuing out of all that Capital Messuage with the appurtenances in Barham aforesaid and out of all Lands and Hereditaments in Barham aforesaid to the said Messuage belonging and then in the occupation of the said Robert Lade unde praedict ' locus in quo est praed ' tempore quo c. fuit parcell ' to be paid at our Lady Day and Michaelmas by equal portions with power to distrain if the said Rent or any part thereof were behind And the Defendant further saith that by virtue of the said Grant the said Nicholas Marsh the Grandfather became seised in Fee of the said Rent and being so seised by his Will in Writing dated the 28th of November 1654 devised the said Rent to Richard Marsh and his Heirs and died by virtue whereof the said Richard Marsh became seised in Fee of the said Rent and being so seised diu ante praedict ' Tempus quo c. viz. 10 Aug. 32 Car. 2. nuper Regis by his Deed indented between him of the one part and the said Nicholas Marsh the Defendant Son of the said Richard of the other part cujus Scripti alteram partem Sigillo praedict ' Richard Marsh omitting sigillat ' idem Thomas Baker the Defendant hic in Cur ' profert for and in consideration of Natural Love and affection which he bore to the said Nicholas now Defendant his Son and the sum of 5 l yearly by him the said Nicholas to the said Richard Marsh during the Life of the said Richard secured to be paid and for divers other good causes and considerations concessit assignavit transposuit to the said Defendant Nich. Marsh and his Heirs the said Annuity or yearly Rent of 8 l to the use of the said Nicholas Marsh the Defendant and his Heirs prout per idem Scriptum Indentat plenius apparet Virtute cujus quidem concessionis assignationis ulterius mentionat vigore Statuti Anno Regni Hen. 8. nuper Regis Angliae vicesimo septimo de usibus in possessionem transferend praedict Nich. Defend ' fuit adhuc est seisit de praedict annual reddit c. and for 48 l for six years arrear at Michaelmas next-before the taking of the Cattle to the said Nicholas the Defendant bene cognoscit ut Ballivus ipsius Nicholai c. To this the Defendant demurs First It is not sufficiently shewn that the Place where c. was charged with the Rent for the Rent is granted out of a Messuage with the appurtenances in Barham and out of all the Lands in Barham aforesaid to the said Massuage belonging and then in the occupation of the said Robert Lade unde praedict locus in quo est tempore quo c. fuit parcell and tho' it were parcel at the time of the Distress taking it might not be belonging to the said House or in the tenure of Lade at the time of the Rent granted which should have been shewn and of that Opinion were the Court. Secondly In the Deed by which the Defendant Nicholas Marsh claims it is said sigillo praedict Rich. Marsh omitting sigillat Sed non allocatur for it is said before that per Scriptum indentat factum inter c. he granted and that is enough Thirdly Here is a grant of the Rent from Richard Marsh pleaded without any Attornment or Enrollment To which it was answered by the Counsel for the Defendant that it appeareth that the Grant was made in Consideration of Natural Affection as well as Mony and so it shall enure as a Covenant to stand seised and for this the Case of Crossing and Scudamore was cited Pas 23 Car. 2. Rot. 871. where in Ejectment it was found by Special Verdict that Nicholas Hele was seised of Lands in Fee and that he made a Deed to Jane Hele enrolled within six Months by which he did for and in consideration of Natural Love Augmentation of her Portion
these Defendants were entitled to these Costs and he that did not appear might release them to the Plaintiff but they said that if there should appear to the Covin between the Lessor of the Plaintiff and the Defendant who did not appear to release the Costs the Court supposed that they might correct such Practice when it should be made appear Bright versus Addy AN Action of Trespass Quare clausum fregit was brought by Baron and Feme Pollexfen Chief Justice was of Opinion that the Feme could not be joyned tho' it was her Land Ventris contra For this Action will survive and they have election either to joyn or to bring it alone 1 Brown l. 21. 1 Ro. Abr. 348. Hob. 189. 1 Cro. 96. 3 Cro. Tregniel and Reeve Mo. 5. In an Action of Forcible Entry upon the Wives Land after the Coverture she was joyned with the Husband Adjornatur Anonymus IN an Assumpsit against the Administratrix the Defendant pleaded quod ipsa non assumpsit instead of the Intestate After Verdict a Repleader was awarded and no Costs to either party upon a Repleader Marks versus Nottingham THe Defendant pleaded in Abatement that the Plaintiff was dead at such a place before the Action brought The Court doubted whether such Plea could be received but upon view of Rastall's Entries 161. pl. 6. where the like Plea was Powell and Ventris conceived it to be a good Plea Pollexfen Ch. Justice and Rokeby said that that in Rastall differed because there were two Plaintiffs so that Issue might be joyned with the other Plaintiff Sed vide librum where the Replication to that Plea is that W.H. praedict ' R.B. Attornat ' praed ' J. which J. was pleaded to be dead nomine pro ipso J. Magistro suo dicit quod breve praed ' ratione praeallegat ' cassari non debet quia dicit quod praed ' J. superstes in plena vita existit viz. apud L. in Com. N. non mortuus prout praed ' W. superius allegavit hoc petit quod inquiratur per Patriam praed ' W. similiter c. Adjornatur Haselwood versus Mansfield IN Debt for 150 l the Plaintiff declared upon a Charter-party which contained divers mutual Agreements and in performatione conventionum praed ' ex parte dicti Magistri ipse obligasser se dicto Mercatori in penali summa 150 l ad performationem convention ' praed ' ex parte dicti Mercator ' obligasset se dicto Magistro c. in simili penali summa 150 l c. And this Action was brought by the Master of the Ship against the Merchant The Defendant pleaded an Insufficient Plea to which there was a Demurrer But it was moved that the Declaration was Insufficient for when it comes to the Penalty on the Merchants part it is only obligasset se omitting ipse or ipse praed ' Mercator obligasset se so 't is not expresly declared that the Defendant was bound And of that Opinion were Pollexfen Chief Justice Powell and Rokeby Ventris contra For it is obligasset se dicto Magistro so none but the Merchant can be understood to be bound and if it were ipse obligasset it had been good and that is understood But Judgment was given for the Defendant Snode versus Ward IN an Indebitat ' assumpsit for Goods sold The Defendant pleaded quod ipse infra sex annos proxime ante diem impetrationis Brevis Originalis ipsius Quer ' non assumpsit To which the Plaintiff demurred 1. Because the late Statute of 1 Willielmi Mariae for reviving of Process doth Enact That the Time from the 11th of December 1688 to the 13th of February then next following should not be accounted as any part of the Time upon the Statute of Limitations And therefore the Defendant should have pleaded that he did not assume within six years and so many days as were between the 11th of December and the 13th of February And it was said so had the Pleading been ever since the said Statute But the Court Resolved that the Pleading might be still in such manner as before the Statute For the Statute is that those Days shall be no part of the time and therefore pleading non assumpsit infra sex annos is to be understood of Six years exclusive of those Days between the 11th of December and the 13th of February 2. Another Exception was taken to the Plea for that it is ante impetrationem Brevis Original ' ipsius Quer ' and doth not say praed ' brevis and so it may be referred to some other Writ the Plaintiff might have Pollexfen Chief Justice inclined that it was naught for this Cause Adjornatur Vid. 8 Co. 57. The Earl of Rutland's Case He pleads that he was seised of the Park of Clipsham and granted officium Parci sui and not said praed ' Parci and held it good Vid. 2. Cro. 288. Burton and Eyre Humphreys versus Bethily IN an Action of Debt upon a Penal Bill where the Defendant was to pay 10 s upon the 11th of June and 10 s more upon the 10th of July next following and so 10 s every three Weeks after till a certain Sum were satisfied by such several payments And for the true payment thereof the Defendant obliged himself in the Penal Sum of 7 l The Plaintiff in facto dicit pleaded that the Defendant did not pay the said Sum or any part thereof upon the several days aforesaid unde actio accrevit for the 7 l The Defendant pleaded that he paid 10 s upon the 11th of June hoc paratus estve rificare c. The Plaintiff Replyed that he did not pay it hoc petit quod inquiratur per Patriam To which the Defendant demurred The Plea was held altogether Insufficient But then Pollexfen Chief Justice observed that the Declaration was naught for he should have declared that the Defendant failed in payment of one of the Sums which would have been enough to have entitled him to the Penalty but he says The said several Sums of Money or any of them and this is double and he inclined that it was not aided by Answering over or by the General Demurrer Adjornatur Vide Saunders and Crowley 1 Ro. 112. Thompson versus Leach IN an Ejectment by Thomas Thompson against Sir Simon Leach and divers other Defendants upon the Demise of Charles Leach of the Mannor of Bulkworthy and divers Messuages Lands and Tenements Vpon Not Guilty pleaded a Special Verdict was found to this effect Viz. That Nicholas Leach was seised in Fee of the said Mannors Lands and Tenements in the Declaration and by his last Will in Writing bearing date the 9th day of December in the 19th year of the Reign of the late King Charles the Second devised the Premisses to his Brother Simon Leach for Life remainder to the first Son of the Body of the said Simon and the Heirs Males of the
the case of Proxies Davis Rep. 4. It is said the King has power and that by the Antient Law of the Realm to Visit Reform and correct all Abuses and Enormities in the Iurisdiction Spiritual so that an Offence of this nature is a Violation of the Kings Justice and a Transgression of the Rules of his Administration This is indeed the case of all Crimes of a publick nature the King is most evidently injured by them the Indictments run contra coronam dignitatem c. Now who should have the Forfeiture but he that hath the greatest share in the Injury Again by giving of this Forfeiture to the King the end and design of the Statute is like to be best answered By the Preamble the Statute appeareth to be made that worthy persons might be advanced to places where Iustice was to be administred and who is best to be entrusted with this but the King The Court having given these Reasons they came to consider what had been insisted on at the Bar in the behalf of the Bishop It was said that all the Jurisdiction Ecclesiastical in the Diocess was originally placed in the Bishop and the case of Gastrill and Jones 2 Ro. Rep. 646 647. was cited where it is said That the Iudicial power of the Archdeacon was derived from the Bishop he is called Vicarius Episcopi and Oculus Episcopi T is true there are some Archdeacons that have Iurisdictions peculiar and exempt but that is by Prescription or Custom these are taken notice of by Godolphin But there is nothing found of that in the Verdict and so must be taken to be the common case of an Archdeacon and that was agreed It was said this offence was reckoned Simony in the Canon Law And the Bishop had the correction of it as in Smithes Case Owens Rep. 87. This was compared to the Cases of inferiour and subordinate Officers which when they are forfeited the superiour takes advantage as in the Earl of Pembrooks Case and Sir H. Bickly Popham 119. The Keeper of a Walke in a Forest forfeited this went to him that had the custody of the Forest so in Bridgman's Rep. 27. He that hath Liberty of a Park in a Forest when forfeited it goeth to the Lord of the Forest 39 H. 6. 32. The Keeper of the Marshalsey of the Kings Bench forfeited his Office the Duke of Norfolk Great Marshal of England took advantage of it To these Cases it was said by the Court That they differed much from the Case at the Bar. First In the Cases cited the Inferior Officer is put in by the Superior and in some Cases to answer for his miscarriage ubi respondeat Superior they are Offices incident as the County Clark to the Sheriff Mittons Case 4 Co. and Scroggs Case of the Exigenter to the Chief Justice of the Common Pleas Dyer 175. But here the Bishop doth not put in the Register of the Archdeacons Court He may make one to supply that place if it falls void when the Archdeaconry is vacant but then the next Archdeacon removeth him and puts in another Secondly The Forfeitures in the Cases cited were upon Breaches of Conditions in Law annexed to the Offices and t is a Rule in Law that the Grantor is to take advantage of the Breach of all Conditions but we are in case of a Forfeiture for offending against an Act of Parliament And the Court said tho' it might be supposed originally the Jurisdiction within the Diocess was lodged in the Bishop yet the Archdeacons Court hath time out of mind been settled as a distinct Court 4 Inst 339. and the Statute of 24 H. 8. cap. 12. takes notice of the Consistory Court which is the Bishops Court and the Archdeacons Court from which there lies an Appeal to the Bishops Court in 2 Ro. Rep. 150. Chivertons Case The Archdeacon is said to have a Court of himself and that the Courts of Westminster take notice thereof Thâ—s may be resembled to the Case of the Torn and Leet in the County the Leet is supposed to have been derived out of the Torn and yet upon the Forfeiture of a Leet it shall not go to the Sheriff As to the second Point it was resolved by the Court That the King might in this Case make a Register before Office found It was agreed That where an Estate of Freehold was forfeited to the King by Act of Parliament that an Office would be requisite to vest it in the King and that by the Statute of 5 Edw. 6. against the sale of Offices all the Estate and Interest c. of the Offender is forfeited But Pollexfen Chief Justice conceived this was not an Estate in the Archdeacon but only a Power to appoint a Register and in the nature of a chose en Action like the case of Offices in the King where the King may grant or nominate to the Office but hath not the Office in him to use or execute But he conceived and with that the rest of the Court agreed that however as to the present vacancy the right to supply that was a Chattel separate from the Inheritance and the King might supply the present avoidance before any Office found tho' it be admitted that the right of nomination in point of Estate should not vest in the King before Office found Where the Kings Tenant dies seised of an Advowson or in case of an Outlawry tho' the Estate is not in the King before Office yet if the Church becomes void the King shall present before Office 20 Edw. 4. 11. The case so put of an Advowson appendant Stamf. Prerog 54. B. T is a Transitory Chattel the present avoidance Lanes Rep. 43 64. 1 Ro. Rep. 326. and Jones Rep. 425. So the Body of the Ward is in the King before Office In Case of Simony the King shall present without Office Sed nota 31 Eliz. giveth the Presentation pro hac vice only And the Court said that the Verdict found that the Plaintiffs had a Grant from the Archdeacon also so that if nothing be in the King till Office it must remain in the Archdeacon so his Grant will be good till Office found There are no disabling words in the Statute but only shall Lose and Forfeite so quacunque via data the Plaintiffs ought to have Iudgment Harris versus Parker Ante ult ' Term. IN an Action of Debt for 99 l Rent the Plaintiff Declared upon two Demises which he laid at the Parish of St. Martin in the Fields in Middlesex of a Messuage and divers Lands quae praemissa sunt struat ' jacent ' existent in super acclivitatem de Hampstead Anglicè the rise of Hampstead Hill to hold for seven years reserving upon each Demise eighteen pounds yearly Rent The Defendant pleaded Actio non quia dicit quod praed ' Johannes Harris tempore dimiss ' praed ' nihil habuit in Tenementis praedict ' unde c. The Plaintiff Replied That long before the
ipse paratus est verificare Quam quidem materiam praedicta Priscilla non dedic ' nec ad eam aliqualit ' respondit set verificacon ' illam admittere omnino recusavit ut prius per ' Judic ' quod praed ' Priscilla ab accone sua praed ' versus eum habend ' praecludatur c. Et quia Justic ' hic se advisare volunt de super pÌ„missis praed ' priusquam Judic ' inde reddant dies dat' est partibus praed ' hic usque à die Sancti Michaelis in tres Septimanas de audiendo inde Judicio suo eo quod idem Justic ' hic nondum inde c. Priscilla Web Widow versus Moore THe Plaintiff Declared in an Action upon the Case upon Five several Promises one whereof was upon a Quantum meruit for finding Meat and Drink for the Defendant at his Request The Defendant pleaded in Bar an Outlawry of the Plaintiff in this manner viz. Quod quidam S.C. al' scilicet Termino Sanctae Trinitat ' anno regni nuper Regis Jacobi secundi tertio implacitavit pÌ„d ' Priscillam in Cur ' dicti nuper Regis de Banco hic de placito trangres praedict ' quae Priscilla pro eo quod non venit in praedict ' Cur ' de B. praed ' praefat ' S. C. inde responsur ' secundum legem consuetud ' hujus regni Angl ' in Exigendo posita fuit ad utlagand ' in Com' Wiltes ' ea ratione postea scilicet quinto decimo die Maij anno regni dicti nuper Regis quarto in Com' Wiltes ' praed ' debito juris modo ad Sectam praed ' S. C. waviata fuit adhuc waviata existit prout per recordum processum inde eadem Cur ' dicti nuper de Banco praed retornat ' modo residens plen ' liquet Quae quidem Utlagaria adhuc in suis robore effectu remanet minime reversat ' seu annihilat ' hoc parat ' est verificare per Recordum illud unde pet ' Judicium si action ' c. And to this Plea the Plaintiff Demurred 1. For the Outlawry could not be pleaded in Bar to an Assumpsit upon a Quantum meruit for there is no certainty of Debt appearing till the thing comes to be valued and so cannot be forfeited It was doubted Whether Debt upon a Simple Contract was forfeited till 4 Co. Slade's Case But it was Resolved by the Court in this Case that the Outlawry was a good Plea in Bar for the Consideration created a Debt tho' that Debt was not reduced to a certain Sum. Markham and Pitt in 3 Leon. 205. Outlawry pleaded in Bar to Trover where it lies all in Damages But this Action arose upon a property of Goods which would have been forfeited 3 Leon. 197. where the King had granted all Forfeitures that accrued to him by the Outlawry of J. S. and the Grantee brought an Action But an Exception was taken to the pleading of the Outlawry for it ought to have been set forth that the Plaintiff did not appear upon the Exigent and upon that waviata fuit debito juris modo is too general Fitzherb Account 91. Traverse 31. Stamford 148. And of this the Court doubted and appointed to search Presidents of the Pleading Et Adjornatur Kempe versus Cory al' Quod vide ante ultimo Termino THe Case was now moved again and as to the Matter in Law it was held clear that where A. is seised of a Third part in Common and B. of the other two parts in Common with A. and A. let his Third part reserving Rent and B. puts in his Cattle or a Stranger by his License that such Cattle are not Distrainable for the Rent But the Doubt was because the Avowry was in loco in quo ut in super praedict ' tertiam partem c. Whether the Plaintiff should not have traversed the Taking in tertia parte tantum Vide the Case of Newman and Moor in Hob. 80. 103. And note there that the Traverse was held unnecessary And the Court held clearly that it would have been impertinent to make a Traverse in this Case for the Matter in the Avowry was confessed and avoided CASES Adjudged upon Writs of ERROR IN THE Exchequer Chamber Termino Sancti Michaelis Anno 1 W. M. BY Pollexfen Chief Justice Powell Justices Rokeby Justices Ventris Justices Atkyns Chief Baron Nevill Barons Lechmore Barons Turton Barons Willows versus Lydcot VPon a Writ of Error upon a Iudgment in Ejectment in B.R. which was brought for a Messuage in St. Martins in the Fields Vpon the General Issue pleaded and a Special Verdict found the Point was to this effect William Shelton was seised in Fee of the said Messuage and of dvers other Messuages situate in the said Parish of St. Martin and other Parishes and made his Will in Writing and thereby Devised his Houses in the other Parishes to divers Charitable Vses and then devised to one Edward Harris and Mary his Wife the Messuage in question for their Lives and then in the following Clause the better to enable his Wsfe to pay his Legacies he devised all his Messuages Lands Tenements and Hereditaments whatsoever within the Kingdom of England not above disposed of to have and to hold to her and her Assigns for ever and made her Executrix And the Verdict was found That Edward Harris and Mary his Wife were dead and that the Testator left sufficient to his Wife to pay his Legacies without the Reversion of the said Messuages devised to Harris and his Wife That the Lessor of the Plaintiff was Heir at Law to the Testator and that the Defendants claimed from Anne Wife of the Testator c. si super totam materiam c. And Judgment was given in the Kings Bench for the Plaintiff And upon a Writ of Error brought in the Exchequer-Chamber it was this Term Argued before the Justices and Barons and by the Opinion of them all the Judgment was Reversed For they held that there were words in the Devise to the Testators Wife that would carry the Reversion of this House as an Hereditament undisâ—oâ—d of Vide the Case of Whâ—eler and Walroon in Allen's Rep. 28. one having a Mannor and other Lands in Somerset-shire Devised the Mannor to A. for Six years and part of the other Lands to B. in Fee and then comes this Clause and the rest of my Lands in Somersetshire or elsewhere I give to my Brother and it was adjudged by the word Rest the Reversion of the Mannor passed as well as the Lands not Devised before A Case about 20 years ago was cited by the Counsel for the Defendant in the Writ of Error between Bowyer and Milbanke in a Borough where a Nuncupative Will would pass Lands by the Custom a man upon his Death-Bed being asked about his Will said I Give All to my Mother and repeated the
void if Livery had been made It was Resolved not to enure as a Covenant to stand seised because the Deed was void in the frame of it The Lords affirmed the last Judgment given by the Lords Commissioners c. and held that no Vse would arise With the concurrent Opinion of Baron Nevil Justice Eyre and Justice Ventris THE ARGUMENT OF Mr. Iustice Ventris IN THE EXCHEQUER-CHAMBER UPON A Writ of ERROR out of the Kings-Bench Christopher Dighton Gent Plaintiff versus Bernard Greenvil Esq Defendant THE Plaintiff brought a Writ of Error upon a Judgment in an Action of Trespass and Ejectment in the Kings-Bench given for the Defendant where the Plaintiff declared upon the Demise of Theophilus Earl of Huntington of a Moeity of the Mannor of Marre and of divers Messuages Lands and Tenements lying in Marre Bentley in Baln in the County of York and also of the Demise of Robert Earl of Scarsdale of the other Moiety of the said Mannor and of the Demise of Elizabeth Lewis of the entire Mannor of Marre and that by Vertue of these several Demises he entred and was possessed until ejected by the Defendant Vpon Not Guilty pleaded the Jury found the Defendant Not Guilty of the Trespass and Ejectment upon the Demise of Elizabeth Lewis and as to the Demises of the several Moieties by the said Earls they found a Special Verdict to this effect Viz. That Thomas Lewis the 9 of April 20 Jac. 1. before the Mayor of Lincoln acknowledged a Statute Merchant to William Knight for 1200 l to be paid at the Feast of St. Philip and Jacob then next following and that the said Money was not paid at the day and that William Knight the 16 of November 1629. made his last Will and one Isaack Knight his Executor and died that Isack proved the said Will and in Trinity Term 20 Car. 1. sued a Cap. si laicus out of the Common Pleas against the said Thomas Lewis directed to the Sheriff of Lincoln returnable in Tres Trin. who returned quod laicus fuit sed not fuit inventus in balliva sua upon which issued a Writ hearing Teste the 7 of July 23 Car. 1. Vic Eborum to estate the Goods and Chattels and all the Lands and Tenements of the said Thomas Lewis tempore Recognitionis debiti praed ' returnable Mense Michael upon which the said Sheriff returns an Inquisition taken the 11 of October then next following whereby Thomas Lewis was found seised of divers Lands and Tenements parcel of the Lands in the Declaration mentioned to be demised by the said Earls which he the same day caused to be delivered to the said Isack to hold by Extent as his Free-hold until he should be satisfied of his said Debt with his Damages and Costs They further find That the said Thomas Lewis and one John Levet and Thomas Lever the 20 of Novemb. 13 Car. 1. acknowledged a Recognizance in nature of a Statute Staple before the Lord chief Justice Brampston to Richard Gerrard for 1000 l payable at Christmass then next following which Money was not paid at the day and that upon a Certificate of the said Recognizance in the Chancery by John Gerrard surviving Executor of Richard Gerrard the 22 of June 24 Car. 1. there issued a Cap. si laicus and an Extent against the said Thomas Lewis to the Sheriff of the County of York retainable in Craft animar ' prox ' at which day the Sheriff returned all Inquisition by him taken whereby it appeared that the said VVilliam Lewis tempore Recogn ' debiti praed ' was sessed in Fee of the Mannor of Marre and of divers Messuages Lands and Tenements being the same Lands in the Declaration mentioned to be devised by the said Earls and the 29 of Novemb. 24. Car. 1. a Liberate was sued out returnable in quinden ' Hillar ' to the said Sheriff who returned that the 29 of Novemb. 24. Car. 1. he had caused to be delivered the said Mannor Messuages Lands and Tenements to the said John Gerrard to hold as his Free hold until he should be satisfied his said Debt will his Damages and Costs They further find That Thomas Lewis and Thomas Lever the 27 of May 15 Car. 1. acknowleged a Recognizance in nature the of a Statute Staple before the Lord Chief Justice Brampston to Sir Gervase Elwaies and William Burroughs for 5000 l payable at the Feast of St. John the Baptist next following which Money was not paid at the day and that upon a Certificate of the said Recognizance in Chancery by the said Sir Gervase Elwaies and William Burroughs the 10 of Decemb. 15 Car. 1. there issued out a Cap. si laicus and an Extent against the said Thomas Lewis directed to the Sheriff of the County of York returnable in Quinden ' Hill prox at which day the Sheriff returned on Inquisition by him taken whereby it appeared that the said William Lewis tempore Recogn ' debiti praed ' was seised in Fee of a Capital Messuage in Marre and of divers Messuages Lands and Tenements being the same Lands mentioned in the Declaration to be demised by the said Earls and that the 10 of Febr. 15 Car. 1. a Liberate ' was sued out returnable in Quidden ' Pasch to the said Sheriff who returned that he had caused to be delivered the said Lands and Tenements to the said Sir Gervase Elwaies and William Burroughs to hold as their Free hold until they should be satisfied the said Debt with their Damages and Costs They find that Thomas Lewis was seised of all the Lands mentioned in the said several Inquisitions at the respective times of his acknowledgment of the said Statute and Recognizance They find that the 15 of July 1651. Isaack Knight and John Gerrard by their respective Deeds granted their said several extended interests to one Edward Lewis by vertue whereof the said Edward Lewis became possessed of the Mannor and the Tenements praed Edwardo sic possessionat existente praedictoque Thoma Lewis de Manerio omnib ' premissis seisit ' existen ' in actual reali possessione inde the said Thomas Lewis by his Indenture of Lease and Release dated the 25 and 26 of May 1657. for 4000 l conveyed the said Mannor and Premisses to John Lewis and his Heirs in which there is a Covenant to Levy a Fine before the end of Trinity Term then next ensuing and that accordingly in Trinity Term 1657. The said Thomas Lewis did Levy a Fine come ceo with Proclamations of the said Mannor and Premises to the said John Lewis to the uses in the said Indenture mentioned by vertue whereof the said John Lewis was seised in Fee of the said Mannor and Premises And that John Lewis being thereof so seised the 21 day of July 1670 made his last Will and Testament in Writing and thereby devised the said Mannor and Tenements to Edward Lewis and the Heirs Males of his Body and for want of such Issue to his
TRin. 20 Car. 2. Rot. 719. A Custom that Lands should descend always to the Heirs Males viz To the Males in the Collateral Line excluding Females in the Lineal was held good Which it was said was allowed anciently in the Marches of Scotland in order to the Defence of the Realm which was there most to be looked to tho' it is said in Davis's Reports That the Custom of Gavelkind which was pretended in Ireland and Wales to divide only between Males was naught But the former Custom was adjudged good in this Court Hill 18 Car. 2. Rot. 718. Foot versus Berkly BErkly had Iudgment in an Ejectment in Communi Banco and Execution of his Damages and Costs Foot brings Error and the Judgment is affirmed Whereupon Berkly prays his Costs for his delay and charges but could not have them For no Costs were in such case at the Common Law and the Statute of 3 H. 7. cap. 10. gives them only where Error is brought in delay of Execution so 19 H. 7. cap. 20. And here tho' he had not Execution of the Term yet he had it of his Costs If one hath Iudgment in a Formedon in Remainder and before Execution the Tenant brings Error the Judgment is affirmed yet he shall pay no Costs because none were recoverable at first 1 Cro. Ante. Weyman versus Smith A Prohibition was prayed to the Mayor and Court of Bristol Suggesting that a Plaint was Entred there for 66 l and that the Cause of Action arose in London and not in Bristol and so out of their Iurisdiction Note An Affidavit was also made thereof and this is upon Westm cap. 35. and so is F.N.B. 45. Vnless the party pleading in Bar or Imparling admits the Iurisdiction of the Court 2 Inst Tarlour and Rous versus Parner AN Account brought by the Plaintiffs as Churchwardens against the Defendant the former Churchwarden for a Bell c. The Defendant pleads That it lacked mending and that by the Assent of the Parishioners it was delivered to a Bell Founder who kept it until he should be paid To which the Plaintiff Demurred For this Plea is no bar of the Account but a good Discharge before Auditors But it was said on the other side That the Matter pleaded shewed that the Defendant was never Accountable therefore it might be in Bar. The contrary whereof is Adjudged in the same Case in terminis 1 Rolls 121. between Methold and Wyn and so was the Opinion of the Court here But then it was alledged that the Declaration was not good for there were two Plaintiffs and yet it is quod reddat ei compotum and it is de bonis Ecclesiae whereas it should have been bonis Parochianorum For the first the Court said that it should be amended for it was the default of the Clerk But the other was doubtful For the Presidents were affirmed to be both ways but they rather inclined that the Declaration was not good for that cause Anonymus AN Indictment of Forcible Entry in unum Messuagium vel domum Mansional ' quaere if not uncertain and other Lands and Tenements tent ' ad voluntat ' Dom ' secundum consuetudinem Manerii and doth not express what Estate For which the Court held it ought to be quashed for the Statutes 8 H. 6. and R. 2. extend only to Freeholds and the Statute in King James's time to Leases for years and Copyholds And here tho' he saith at the Will of the Lord according to the Custom of the Mannor yet 't is not sufficient because he saith not by Copy of Court Roll. And it was Adjudged in 1653 in this Court that none of the Statutes extended to Tenants at Will Martyn versus Delboe IN an Assumpsit the Plaintiff Declared That he was a Merchant and the Defendant being also a Merchant was Indebted to him in 1300 l And a Communication being had between them of this Debt the Defenant promised him in Consideration thereof That he should have Share to the Value of his said Debt in a Ship of the Defendants which was then bound for the Barbadoes and that upon the Return of the Ship he would give him a true Account and pay him his proportion And sets forth That the Ship did go the said Voyage and returned to London and that after the Defendant with some other Owners had made an account of the Merchandize returned in the said Ship which amounted to 9000 l and that the Plaintiffs Share thereof came to 1700 l which he had demanded of the Defendant and he refused to pay it c. To this the Defendant pleads the Statue of Limitations and the Plaintiff Demurred Alledging that this Action was grounded upon Merchants Accounts which were excepted out of the Statute Tho' if an Action be brought for a Debt upon an Account stated between Merchants the Statute is pleadable as was Adjudged in this Court last Hillary Term between Webber and Perit yet here there being no Account ever stated between the Plaintiff and Defendant it is directly within the Statute And of that Opinion were Keeling and Rainsford But Twisden inclined otherwise because the Plaintiff declares upon an Account stated and tho' between Strangers yet he bringing his Action upon it admits it Et Adjornatur Nota Every Parish of Common Right ought to Repair the High-ways and no Agreement with any person whatever can take off this Charge which the Law lays upon them Crispe and Jackson versus The Mayor and Commonalty of Berwick IN Covenant after Verdict for the Plaintiff it was moved in Arrest of Judgment that there was a Mis-Trial the Venire being awarded to an adjoyning County Which the Court after Hearing of Arguments in it Ruled it to be well enough but one of the Plaintiffs died before the Court had delivered their Opinions It is prayed notwithstanding that Judgment might be Entred there be no default in the Plaintiffs but a delay which came by the act of the Court and that it was within the Statute of this King That the death of the Party between Verdict and Judgment should not abate the Action and that it was in the discretion of the Court whether they would take notice of the Death in this case for the Defendant hath no Day in Court to plead there being no Continuances entred after the Return of the Postea 1 Leon. 187. Isley's Case Latches Rep. 92. And the Court were of Opinion that Judgment ought to be Entred and there being no Continuances it may be as if immediately upon the Return of the Postea Ante. Lion versus Carew THe Case was A Lease was made to two for 99 years if three Lives should so long live and this to commence after the end of a Lease for Life Reddend ' a certain yearly Rent and two Work-days in Harvest post principium inde reddend ' inde 3 l nom ' Harriotte post mortem of the Lessees or either of them and reddend ' two Capons at Christmass post
Ejectment the Case upon a Special Verdict was to this effect Sir John Danvers being seized of the Lands c. in Tail with the Fee expectant Anno 1646 and in 1647 levied a Fine to the same uses as he was before seized save that a power was reserved to make Leases for any number of years and without reserving any Rent Sir John Danvers did after become Guilty of Treason in Murdring of King Charles the first in 1648 and died in 1655. In 13 Car. 2. cap. 15. the Statute commonly called the Statute of Pains and Penalties Enacts That sundry of the Offenders in that execrable Treason of which Sir J. D. was one should amongst other Penalties there inflicted forfeit all their Lands Tenements and Hereditaments Leases for years Chattels real and interest of what nature or quality soever See the Act of 14 of this King The Lands were by Patent granted to the Duke of York who let them to the Defendant And John Danvers Heir of Sir John Danvers entred and made the Lease to the Plaintiff It had been several times argued at the Bar and this Term Iudgment was given by the Court for the Defendant And Rainsford Chief Justice delivered the Opinion of the Court and the Reasons for himself Twisden Wild and Jones as followeth The question being Whether an Estate Tail were forfeited by the words of the Act of 13 Car. 2. It was observed that all Estates were Fee simple at the Common Law and forfeitable W. the 2. de donis was the first Statute that protected Estates Tail from Alienations and from all Forfeitures of all kinds and so continued until the 12 E. 4. Taltarums Case from which time common Recoveries have been held not to be restrained by the Statute de donis and by the way it must be considered that Perpetuities were never favoured Then came the Statute of 4. H. 7. of Fines which with the explanation of the 32 H. 8. have been always resolved to bar the Issues in Tail so as to Alienations Estates Tail were set free but were not forfeitable no not for Treason until the 26 H. 8. by which they became subjected to Forfeitures in case of Treason and so by 5 E. 6. But 't is true these Statutes extend only to Attainders and 33 H. 8. Vests the Lands c. in the Kings possession without Office Thus having considered the History and Progress of Estates Tail the reasons why such an Estate should be construed to be forfeited upon this Act of 13 Car. 2. are these First The Crime mentioned is of the same nature and with the same aggravations as in 12 Car. 2. by which the Offenders are attainted of Treason c. for they are called Perpetrators of that execrable Treason with many Expressions to the like effect which was looked upon as an offence of that hainous nature that the same Parliament Enacted An Anniversary Humiliation throughout the whole Kingdom to be perpetually observed upon the account of it as if not only they that acted it but the whole Kingdom and their Posterity like to another Original sin were involved in the Guilt of it Nati natorum qui nascuntur ab illis And therefore the Punishment shall not be mitigated in any other manner than is expresly provided by that Act. Secondly It is proved by the generally and comprehensions of the words which are made use of viz. Possessions Rights Hereditaments of what nature soever Interests which does as well signifie the Estate in the ting as that wherein the Estate is which can have no effect if not extended to Estates Tail We must observe also that at the making of this Act entailed Lands were not protected from Forfeitures and tho' 26 H. 8. extends only to Cases where the Offender is attainted yet 't is of good direction to the Judges in Cases of like nature and 't is plain that by this Act of 13 Car. 2. the Offenders were looked upon in pari gradu with these attainted for when the Proviso comes to save the Estates of Strangers c. in trust for whom the Offenders were seized It is said notwithstanding any of the Convictions or Attainders aforesaid Thirdly It is to be observed that the Act takes notice that divers of the Offenders included in this Act were dead now in regard most Lands are known to be entailed if the Act had not intended such Estates to be forfeited it would signifie nothing indeed if the Offenders had been alive it might have been somewhat satisfied with the Forfeiture during their Lives But as the case was it should be of no effect at all after making a great noise of Forfeitures and Confiscations the Act would have been but a Gun charged only with Powder or as in the Fable Parturiunt Montes c. Fourthly It is manifest that the Parliament did not intend that the Children or Heirs of the Persons within the Penalties of the Act should have any benefit of their Estates for in the saving which is made for Purchasers upon valuable Considerations the Wives Children and Heirs of the Offenders are excepted then surely if they would bar them of the benefit of their Purchases à fortiori from inheriting to an Estate Tail especially of a voluntary Entail that seems to be made with a prospect of this Treason which was perpetrated a year after and such an Entail as scarce the like was ever seen before that a power should be reserved to make Leases for any number of years and without Reservation of any Rent By which it is manifest that Sir John Danvers that committed the Treason was fully Master of the Estate Again all Conveyances are avoided by the Act unless such as were upon valuable Consideration which this Fine was not The great case which has been insisted upon by way of objection is Trudgeons Case Co. Litt. 130. Estates Tail were not forfeited upon the Statute of Praemunire but during the Offenders Life For answer to that it must be observed that that Forfeiture is upon the Statute of 16 R. 2. at which times Estates Tail were under thè protection of the Statute de donis but since that time the Judges have not been so strict in expounding Statutes concerning Estates Tail as appears by Adams and Lamberts Case 4 Co. That an Estate Tail given for a superstitious use was within the Statute of 1 E. 6. cap. 4. where the words are generally and not so large as in our case nor so much to demonstrate the intent as is in our Act to extend to Estates Tail wherefore Iudgment was given for the Defendant Note They that argued for the Defendant endeavoured to maintain that if it should be admitted that Entails were not forfeited by the Act yet the Estate of Sir John Danvers in those Lands would be forfeited in regard he levied a Fine in 1647 and the Act of 13 Car. 2. extends to all Lands c. whereof the Persons therein mentioned were seized c. since 1646 and he being
illam modo forma praed ' fact ' necesse non habet nec per legem terrae tenentur respondere Et hoc parat ' sunt verificare Unde pro defectu sufficien ' Narration ' ipsius Francisci in hac parte ijdem Edwardus Walterus pet ' Judicium qd ' praed ' Franciscus ab actione sua praedicta versus eos habend ' praecludatur c. Et praedictus Franciscus dic ' qd ' Joynder in Demurrer narratio praedicta materiaque in eadem content ' bon ' sufficien ' in lege existunt ad ipsum Franciscum actionem suam praedictam inde versus praed ' Edwardum Walterum habend ' manutenend ' Quam quidem materiam idem Franciscus parat ' est verficare Unde ex quo praedict ' Edwardus Walterus ad narrationem praed ' non responder ' nec materiam in ead ' content ' aliqualit ' dedixer ' idem Franciscus pet ' judicium dampna sua occasione fractionis conventionis praed ' sibi adjudicari c. Et quia Justic ' c. Morly versus Polhill IN an Action of Covenant the Plaintiff declared as Executor to George Morly late Bishop of Winchester and sets forth that Brian the Predecessor of the said Bishop had demised a Rectory and certain Lands to J. S. for 21 years who had assigned it to the Testator of the Defendant and that the Lessee covenanted with Brian and his Successors to repair the Chappel of the Church and the Barns c. and assigned a breach in the not xepairing by the Testator of the Defendant in the life of George Morly and that the Lease afterwarns expired To this the Defendant demurred for that it was pretended that the Executor of the Bishop could not bring this Action for the Covenant was with the Predecessor Bishop and his Successors and cited the Cases of Real Covenants 1 Inst 384 385. A Parcener after partition Covenants to acquit the other Parcener of a Suit and the Covenantee assigns the Assignee shall not bring Covenant But the whole Court gave Iudgment for the Plaintiff and that the Executor is here well entituled to the Action for the Breach in the Testators time Wright versus Wyvell IN an Ejectment the Plaintiff declared upon a Demise of Dorothy Hewly and upon a Special Verdict the Case appeared to be thus That Christopher Hewly was seised of the Premisses in Fee and made his Will in this manner I make my last Will in manner following As concerning my Personal Estate First I give and bequeath unto Ann Hewly my Wife the sum of Six Hundred Pounds to be paid unto William Weddall of Eastwick Esq and it 's for the full payment of the Lands lately purchased of the said Mr. Weddall by the said Christopher Hewly and is already estated in part of a Joynture to Ann my said Wife during her natural Life being of the value of Sixty Seven Pounds per annum That of Wiskow York and Malton the Lands and Tenements there amounting to the yearly value of Sixty Three Pounds in all One Hundred and Thirty Pounds which being also estated upon my said Wife it is in full of her Joynture And after this he gives several Legacies and the rest of his Personal Estate he gave to his Wife and made her Executrix Then they find that he had made no settlement of the Premisses or of any part of them upon his Wife and that the Lessor of the Plaintiff was Heir at Law to Christopher Hewly and that Ann the Wife is still living So that the sole Question was whether the Lands should pass to the Wife upon these words in the Will and divers Cases were put upon implicit Devises as that his Feoffees should stand seised to the use of J. S. has been held a good Devise to J. S. tho' there were no Feoffees 3 Leon. 167 162. Devise to his eldest Son after the death of his Wife there the Wife takes tho' nothing expresly devised to her After Arguments heard on both sides by the Opinion of Pollexfen Chief Justice Rokeby and Ventris Iudgment was given for the Plaintiff against the Opinion of Powell Here it appears indeed that the Testator took it that she had the Land but it appears he did not intend to devise any thing by the Will for he mentions that she was estated in it before and in the Cases of Implicit Devises there is no reference to any Act that should have conveyed the Land to the Devisee before but the Will there passes the Land by Construction and Implication Again This Devise is introduced with this Clause as to the disposing of my Personal Estate and throughout the Will he giveth only Personal Things Again This recital comes in as part of another Clause of an express Devise of the Six-Hundred Pounds But Powell relied upon the Case in Mo. 31. A man made a Will in this manner I have made a Lease to J. S. paying but 10 s Rent this was held a good Lease by the Will To which it was answered That the Case there was of little authority for it did not appear how that matter came in question or in what Court or in what Action and said only fuit tenus 3 Eliz. And Iudgment here was given for the Plaintiff Bowyer versus Milner IN a Formedon against several Tenants one appeared and was Essoigned and then another appeared and it was moved whether he could be Essoigned by reason of the Statute of W. 1. c. 43. which seems to be that Parceners or Ioyntenants should have but one Essoign and that they should not fourch Cut ' Contra. The Statute is to be understood of Essoigns after appearance and so is the Book of 28 Ed. 3. 18. it is said to have been the Law of the Times for Tenants to fourch before appearance and so is Co. 2. Inst 250. Hob. 8 46. The Case of Essoigns if the Tenant voucheth two one Essoign may be cast for each of them singly Vid. Stat. of Glouc. c. 6. Anonymus IN an Action of Trespass de Uxore abducta cum bonis viri to his damage of 10000 l Upon Not Guilty pleaded and a Trial at the Bar the Return of the Jury was Octab ' Trin. and the Appearance Day was die Mercurij at which day the Jury appeared but it being appointed for the keeping of a solemn Fast by the King's Proclamation the Jury was adjourned to the Day following and then the Jury and Parties being at the Bar a Plea was offered by the Defendants Counsel puis darrein continuance that the Plaintiff was Excommunicated and produced it under the Seal of the Court and begun their Plea thus Ad hunc diem viz. die Jovis prox ' post Octab ' Trin ' c. So that the Plea came too late for it should have been pleaded die Mercurij for tho' the Jury was adjourned to Thursday yet all Matters were entred as upon Wednesday So this Plea did appear upon the
nuper Vic' quoddam debitum quadragint ' librar ' fieri levari facerent quod capt ' seisit ' fuit in manus dicti nuper Regis per Thomam Rawlinson Mil ' Thomam Fowle Mil ' nuper Vic' Midd ' vicesimo secundo die Januarii anno regni dicti nuper Regis secundo Quodque per Judicium Baron ' dicti Scaccarii dict' nuper Regis apud Westm ' postea reddit ' recuperat ' fuit per dict' nuper Regem versus praefat ' Radulph ' Davis Ita quod denar ' ill ' cum sic levassent iidem nuper Vic' scilicet Johannes Parsons Basil ' Firebrace haberent coram tunc Baron ' de Scaccario apud Westm ' praedict ' à die Sancti Michaelis in tres Septiman ' anno regni dicti nuper Regis Quarto dict' Cur ' ejusdem nuper Regis tunc ibidem ad usum ipsius nuper Regis solvend ' Virtute cujus quidem brevis Praerogativi praed ' The Sheriffs thereupon seized the Goods iidem Vic' scilicet Johannes Parsons Basil ' Birebrace seisire fecerunt omnia bona catalla praedict ' Radulphi Davis in balliva ejusdem nuper Vic' prout breve Praerogativ ' in se exigebat requirebat Quae quidem bona catalla per appretiator ' per eosdem nuper Vic' scilicet Johannem Parsons Basil ' Firebrace nominat ' And Appraised them apprecr ' fue ' ad viginti septem libras quinque solidos novem denar ' quos quidem viginti septem libras quinque solidos novem denar ' iidem nuper Vic' scilicet Johannes Parsons Basil ' Firebrace habuer ' coram Baron ' de Scaccario dicti nupar Regis apud Westm ' praedict ' ad diem locum in brevi Praerogativo praedict ' content ' dict' Cur ' ejusdem nuper Regis tunc ibidem ad usum ipsius nuper Regis solvend ' prout per breve Praerogativ ' praedict ' eis praecept ' fuit Et praedict ' nuper Vic' scilicet Johannes Parsons Basil ' Nulla alia bona Firebrace ulterius dicunt quod praedict ' Radulphus null ' aliqua alia sive plura bona catalla terr' aut tenementa die Utlagar ' praedict ' seu unquam postea habuisset in balliva sua quae extendi appretiar ' seu in manus dicti nuper Regis cap ' potuer ' praeterquam bona catalla praedict ' ut praefertur seisit ' virtute brevis Praerogativi praed ' Et hoc parat ' sunt verificare Et pet ' Judicium si praed ' Johannes Dawson action ' suam praedictam inde versus eos habere debeat c. Demurrer Et praedict ' Johannes Dawson ' dicit quod praed ' placitum praedict ' Johannis Parsons Mil ' Basil ' Firebrace Mil ' superius in barram placitat ' ac mteria in eodem content ' minus sufficien ' in lege existunt ad ipsum Johannem Dawson ab actione sua praedict ' versus praefat ' Johannem Parsons Mil ' Basil ' Firebrace Mil ' habend ' praecludend ' quodque ipse ad placitum illud modo forma praedict ' placitat ' necesse non habet nec per legem terrae tenetur respondere Et hoc parat ' est verificare Unde pro defect ' sufficien ' Respons ' praedicti Johannis Parsons Basil ' Firebrace Mil ' in hac parte placitat ' Idem Johannes Dawson pet ' Judicium dampna sua occasione Transgr ' illius sibi adjudicari c. Joynder Et praedict ' Johannes Parsons Basil ' Firebrace ex quo ipsi sufficien ' materiam in placito suo praedicto ad praedict ' Johannem Dawson ab actione sua praedict ' versus eos habend ' praecludend ' superius allegaver ' quam ipsi parat ' sunt verificare quam quidem materiam praedict ' Johannes Dawson non dedicit nec ad eam aliqualiter respond ' sed verificationem illam admittere omnino recusat iidem Johannes Parsons Basil ' Firebrace pet ' Judic ' quod praed ' Johannes Dawson ab actione sua praedict ' versus eos habend ' praecludatur c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedict ' hicusque à die Sancti Michaelis in tres Septimanas de audiend ' inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Dawson versus The Sheriffs of London IN an Action upon the Case against Sir John Parsons and Sir Basil Firebrace Sheriffs of London The Plaintiff Declared That whereas one Ralph Davis was Indebted to him in 25 l and to recover it he brought an Original Writ Returnable in the Common Pleas and for that the said Davis did not appear he prosecuted him to an Outlawry in London And the said Davis was Outlawed and thereupon the Plaintiff took out a Capias Utlagatum in Trinity Term 4 Jacobi nuper Regis directed to the Defendants then Sheriffs of London by which Writ they were commanded to enquire what Goods and Chattels Lands and Tenements the said Davis had at the time of the Outlawry or at any time since and to Extend and Apprize the same and to Return such Extent in tres Septimanas sci ' Michael ' and that they should take the said Davis c. Which Writ was delivered to the Defendants then Sheriffs of London And altho' the said Davis had at the time of the Outlawry and after divers Goods and Chattels to the value of 40 l and more within the Bailywick of the said Sheriffs which they might have taken apprized and extended yet not regarding the Duty of their Office non solum ipsum Regem de eo quod ad ipsum pertinet occasione Utlagariae praedict ' defraudare verum etiam ipsum Johannem Dawson ab assecutione recuperatione debit ' praedict ' retardare they did not take seize or extend the said Goods but neglected and refused to do it and at the Day of the Return of the Writ falsly deceitfully and fraudulently Returned that the said Davis had no Goods and Chattels Lands or Tenements at the time of the Outlawry or ever after within their Bailywick in Dom Regis contemptum Curiae hic illusionem in Sectae ipsius Quer ' dilationem retardationem ad damnum Quadraginta◠Librarum To this the Defendant pleaded That before they made any Enquiry of the Goods c. of the said Davis viz. the 23d of July Anno regni nuper Regis Jacobi Secundi quarto a Prerogative Writ was issued out of the Exchequer to them the said Sheriffs directed whereby they were commanded to levy a certain Debt of 40 l of the Goods and Chattels Lands and Tenements of the said Davis which was taken and seised into the hands of the said late King by Rawlinson and
Fowle late Sheriffs of Middlesex and which was recovered by the said late King in the Court of Exchequer against the said Davis c. by virtue of which Writ they seized all the Goods of the said Davis in their Bailywick which were apprized at 27 l which they Returned into the Exchequer as the Writ required and the said Davis had no other Goods or Chattels Lands or Tenements within their Bailywick at the time of the Outlawry or ever after c. To this the Plaintiff Demurred and the Court held the Plea insufficient for they set forth that the Predecessor Sheriffs had seised and taken the Debt into the Kings hands so that Execution seemeth to be had before the Defendants were Sheriffs But Judgment was given against the Plaintiff for the Court held that the Action would not lye for the party who has an Outlawry that because the Sheriff upon the Cap ' utlagatum neglects to extend or seize the Goods and Lands of the Outlawed person for that is the Kings loss And tho' it was pretended that the Sheriff extending an seizing would be a means to enforce the Defendant to appear to the Plaintiffs Action the Court said that it was so remote as not to be considered as a ground to support an Action but if it had been shewn that the Sheriffs might have taken his Body and had neglected to do it there might have been more reason to support this Action So Judgment was given quod Querens nil capiat per breve Sir Thomas Gower's Case HE had upon a Commission made an Attorney in order to suffer a Recovery this Term which was done the last Assizes at York And the Court was now moved in behalf of the Heir in Tail to stop the passing of the Common Recovery and several Affidavits were produced to satisfie the Court that Sir Thomas Gower since the said Assizes died in Ireland and the Court being satisfied of the truth thereof did stay the passing of the Recovery and they said if it should pass it would be Erroneous Bealy versus Sampson Lincoln ' ss Trespass for Impounding of his Cattel quousque finem fecit of 10 l JOHANNES Sampson ' nuper de Mawvis Enderby in Com' praedict ' Yeoman attach ' fuit ad respondend ' Willielmo Bealy de placito quare ipse simulcum Georgio Francis nuper de Stamton ' in Com' praedict ' Labourer Vi armis averia ipsius Willielmi pretii quadraginta librarum apud Halton cum Beckeringe nuper invent ' cepit imparcavit ea ibidem sic imparcat ' quousque idem Willielmus finem undecim librarum pro deliberatione eorundem inde habend ' cum praedict ' Johanne Georgio fecisset detinuit alia Enormia ei intulit ad grave dampnum ipsius Willielmi Et contra pacem domini Regis nunc c. Et unde idem Willielmus per Johannem Fancourt Attorn ' suum queritur quod praedict ' Johannes simulcum c. primo die Februar ' anno regni domini Regis nunc c. tertio vi armis c. averia viz. quatuor boves quatuor vaccas ipsius Willielmi pretii c. apud Halton cum Beckeringe praedict ' nuper invent ' cepit imparcavit ea ibidem sic imparcat ' quousque idem Willielmus finem undecim librar ' pro deliberatione eorundem inde habend ' cum praed ' Johanne Georgio fecisset detinuit Et alia Enormia c. ad grave dampnum c. Et contra pacem c. Unde dic ' quod deteriorat ' est dampnum habet ad valenc ' quadraginta librar ' inde produc ' sectam c. Et praedict ' Johannes Sampson per Stephan ' Malton Attorn ' suum ven ' defend ' vim injur ' quando The Defendant pleads a seizure by the Sheriff by virtue of a Fieri facias Non culp ' to part c. Et quoad Venire vi armis seu quicquid quod est contra pacem dicti dn̄i Regis nunc dic ' quod ipse non est inde culpabilis prout praedict ' Willielmus superius versus eum queritur Et de hoc pon ' se super patriam Et praedict ' Williel ' similit ' Et quoad resid ' Transgr ' praedict ' superius fieri supposit ' idem Johannes dic ' quod praedict ' Willielmus actionem suam praedict ' inde versus eum habere non debet quia dic ' quod ante praedict ' tempus quo Transgr ' praed ' Fieri facias issued out of the Court of Common Pleas. superius fieri supponitur scilicet quintodecimo die Junii anno regni dicti domini Regis nunc tertio emanavit extra Cur ' dicti domini Regis de Banco hic scilicet apud Westm ' quoddam breve dicti domini Regis nunc de Fieri fac ' versus praedict ' Willielm ' ad sectam ipsius Johannis tunc Vic' Com' Lincoln ' direct ' per quod quidem breve dictus dom ' Rex nunc praefat ' tunc Vic' Com' Lincoln ' praecepit quod de terris catallis praedict ' Willielmi in balliva ejusdem Vic' Fieri fac ' tam quoddam debitum decem librar ' quod praedict ' Johannes Sampson in Cur ' dicti domini Regis coram Justic ' ejusdem domini Regis apud Westm ' recuperasset versus eum quam quadragint ' solid ' qui eidem Johanni Sampson in eadem Cur ' dicti domini Regis adjudicat ' fuer ' pro dampnis suis quae habuisset occasione detent ' debiti illius qd ' denar ' ill ' haberet coram Justic ' dicti domini Regis apud Westm ' a die Sancti Martini in quindecim dies ad reddend ' praefat ' Johanni de debito dampnis praedict ' unde convict ' fuit quod quidem breve postea ante rētorn ' ejusdem brevis necnon ante praedict ' tempus quo Delivered to the Sheriff c. scilicet secundo die Augusti anno tertio supradicto apud Halton in Com' praedict ' cuidam Antonio Eyre Ar ' tunc Vic' Com' Lincoln ' existen ' deliberat ' fuit in forma juris exequend ' Virtute cujus quidem brevis praedict ' Vic' praedict ' Com' Lincoln ' postea ante retorn ' ejusdem brevis necnon ante praedict ' tempus quo The Sheriff made his Warrant c. scilicet eodem secundo die Augusti Anno tertio supradicto apud Halton praedict ' pro executione brevis praedict ' habend ' fecit quoddam Warrant ' suum in scriptis sigillo Officii sui Vic' sigillat ' ballivo Wapentag ' de Wraggoe necnon praedict ' Georgio Francis Balliv ' ejusdem Vic' ea vice tantum direct ' per quod quidem Warrant ' praedict ' Vic' praedict ' Com' Lincoln ' eis cuilibet eorum conjunctim divisim mandavit quod de terris catallis praedicti Willielmi
Georgius Johannes non sum ' fuer ' nec in eodem brevi de Scire fac ' nominat ' nec in praedicto retorno ine retornat ' tenentes praedictorum duorum Messuagiorum cum pertin ' vel aliqnor ' tenementorum quae fuer ' praedicti Willielmi Wormell praedicto tempore redditionis Judicii praedicti idem Paris pet ' Judic ' de brevi illo Et quod idem breve cassetur c. Et praedictus Robertus dic ' quod praed ' placitum praed ' Demurrer to the Plea Paris superius in forma praedicta placitat ' ac materia in eodem content ' minus sufficien ' in lege existunt ad praedict ' breve de Scire fac ' praefat ' Vic' Norf. direct ' cassand ' vel ad ipsum Robertum ab executione sua versus praefat ' Paris de debito dampnis praedict ' levand ' de terris ten̄tis praed ' cum pertin ' unde idem Paris tenens ut praefertur retornat ' existit repellend ' seu retardand ' quodque ipse ad placit ' illud modo forma praed ' placitat ' necesse non habet nec per legem terrae tenetur respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' placiti praedicti Paris in hac parre idem Robertus petit Judicium quod breve suum praedict ' bon ' adjudicetur necnon execution ' suam versus praefat ' Paris de debito dampnis praed ' de terris tenementis praed ' cum pertin ' unde dictus Paris tenens ut praefertur retornat ' existit levand ' fibi adjudicari c. Et praedictus Paris ex quo ipse sufficien ' Joynder in Demurrer materiam in lege in placito suo praedicto ad praedict ' breve de Scire fac ' praefat ' Vic' Norf. direct ' cassand ' ad praedict ' Robertum ab executione sua praedicta retardand ' superius allegavit quam ipse parat ' est verificare quam quidem materiam praedictus Robertus non dedic ' nec ad eam aliqualit ' respondit sed verification ' illam admittere omnino recusat Unde ut prius pet ' Judic ' de brevi praedict Et quod idem breve cassetur c. Et quia Justic ' hic se advisari volunt de super praemissis priusquam Judic ' inde reddant dies dat' est partibus praedict ' hic usque à die sancti Michaelis in tres Septimanas de audiendo inde Judicio suo eo quod Justic ' hic inde nondum c. Prynne versus Sloughter IN a Scire facias upon a Judgment recovered in Trinity Term Anno 19 Car. 2. nuper Regis in this Court against William Wormell Esq in 200 l Debt to warn the Tertenants of the said Wormell if they could shew any thing why Execution should not be c. which was directed to the Sheriffs of London who returned that there were no Tertenants in their Bailywick upon which a Testatum scire fac ' went to the Sheriff of Norfolk to warn the Tertenants there and the Sheriff returned the said Sloughter Tenant of a Messuage c. which the said Wormell was seised of at the time of the Judgment and that there was no other Tertenants in balliva sua Sloughter appeared and demanded Iudgment of the Writ of Scire fac ' quia dicit quod diu ante emanationem ejusdem brevis tempore emanationis inde quidam Geo. Underhill Jer. White were and still are seised of two Messuages c. in Thames Ditton in the County of Surry ultra praeter Tenementa praedict ' in retorno ejusdem brevis de Scire fac ' superius specificat ' of which the said Wormell was seised c. Unde ex quo praed ' Georgius Jeremias non summon ' fuer ' nec in eodem brevi de Scire fac ' nominat ' nec in praedict ' retorno inde retornat ' tenentes c. idem Sloughter petit Judicium de brevi illo quod idem breve cassetur To this Plea the Plaintiff demurred and Serjeant Pemberton Argued that it was no Plea in Scire fac ' to say that there were Tertenants in another County than where the Scire sacias was brought tho' it might be if the Tenants were in the same County Especially this Plea is not to be admitted since the Statute of 16 17 Car. 2. c. 5. which was made to prevent delay of Execution upon Judgments Statutes and Recognizances and Enacts that when any Judgment c. shall be extended the same shall not be delayed or avoided by occasion that any part of the Lands and Tenements extendible axe or shall be omitted out of such Exten◠saving the Remedy for Contribution against such persons as shall have any of the Lands extendible Which Statute was at first temporary and made perpetual by 22 23 Car. 2. cap. 2. The Court were of Opinion that as to the Matter of the Plea that it might be pleaded And when one Tertenant is Returned summoned upon a Scire fac ' he may plead that there are other Tertenants tho' in another County and this will put the Plaintiff to take out a Scire facias against them Vid. for that the Lady Greshams Case Mo. 429. and Clarke and Hardwick's Case Mo. 524. Vid. Dy. 331. B. semble Cont. In a Scire fac ' for a Tertenant in the nature of an Audita Querela it was held that the Tertenant returned Could not plead there was another Tertenant not warned Vid. 1 Roll. Rep. 57. Holland and Lee it seems to be made a Doubt But the whole Court held that such Matter might be pleaded and the Statute of 22 23 Car. 2. does not extend to this Case for that is when an Extent is executed and the Tertenant brings an Audita querela he shall not drive the Plaintiff to extend anew but the Extent shall stand and he shall have Contribution against the rest But the Pleading in this Case was altogether ill and insufficient for it is pleaded in Abatement of the Writ which it ought not to be but he should have demanded Iudgment si ipse ad breve praed ' in forma praed ' retorn ' respondere compelli debeat and so is the Conclusion in Jefferson and Dawson's Case 2 Sand. 23. and in Clarke's Case in Mo. 524. And then he sheweth that the said George and Jeremy were not summoned nec in eodem brevi de Scire fac ' nominat ' nec in eodem retorno retornat ' which is naught for the Sheriff of Norfolk could not summon or return those Tenants being in another County But then it was shewn on the part of the Defendant that the Record of the Scire fac ' was wrong for it was tituled Alias prout patet Term ' Sancti Michaelis ultimo praeterito and then sets forth a
late Case and if this sicut debuit is not sufficient 't is laid further in the Declaration that he did not permit the Plaintiff to have the benefit of this Foldage But the Court held the Declaration insufficient for that there is no Authority in any Book of Law to shew that the word Faldagium did imply so much as was pretended on the Plaintiffs part Faldagium is to have Sheep folded in his ground as Falde cursus is a Sheep-walk or feed for his Sheep and if it be the usage in case of Foldage for the Owner of the Sheep to bring his Sheep to the Fold it ought to have been so set forth for the Court cannot take notice of the private usages of Countries and if the Faldagium did imply what the Plaintiff would have it then it should have been set forth that the Plaintiff had set up a Fold in the Land where the Sheep were to have been folded for he was to do the first act which must have been shewn if all the particulars had been set forth and sicut debuit is not enough here for the obscurity of the word Faldavit so that it doth not appear to the Court what ought to have been done on the Defendants part and to say non permisit Querentem habere beneficium Faldagii was not good without shewing how he disturbed him as 8 Co. in Francis Case Sed nota That was upon Demurrer but here 't is not said non permisit the Plaintiff habere Faldagium or non permisit eum faldare but non habere beneficium faldagii so that it was not certain what was meant for the Sheep might be folded and yet he might be deprived of the benefit of the foldage And the Chief Justice said here the Prescription is laid to have the Sheep going infra Communes Campos Territoria de Grancester to be folded and Territoria is a word unknown in the Law so no certainty in the Prescription Note Here a Prescription is laid in a Body Aggregate in a que Estate but that was held to be well enough because for a thing appurtenant to the Mannor Vide 2 Cro. 673. Kelw. 140. B. 1 Inst 121. a. But for the Reasons above mentioned the Iudgment was stayed by the Opinion of the whole Court George versus Butcher DEbt upon a Bond. The Defendant demands Oyer of the Condition which was to perform certain Articles of Agreement and the Defendant set forth the Articles made between the Defendant of the first part the Plaintiff of the second part and Rebecca Morse Widow Joseph Morse Samuel Morse John Morse Daniel Morse Nathaniel Morse Robert Morse and Thomas Morse Sons of the said Rebecca of the third part by which it was recited that a Marriage was intended between the Defendant Butcher and the said Rebecca by means whereof the Defendant would become possessed of her Personal Estate and in consideration thereof the Defendant covenanted by the said Articles inter al' having also recited that Robert Morse deceased Father of the said Joseph Morse Samuel Morse John Morse Daniel Morse Nathaniel Morse Robert Morse and Thomas Morse had by his Will bequeathed cuilibet ipsorum praed ' Josepho Samuel ' Johan ' Daniel ' Robert ' Tho' omitting Nathaniel the sum of 50 l with the Plaintiff that the said Defendant would pay praed ' Josepho Samuel ' Johan ' Nathaniel ' Robert ' Tho' praedict ' seperal ' legationes vel summas quinquaginta librat ' And the Defendant pleads further that he paid to the said Joseph Samuel John Daniel Robert and Thomas the said several sums of 50 l and shewed performance of all the other Articles And to this the Plaintiff demurred because that he did not shew that he paid 50 l to Nathaniel Morse and expresly covenanteth to pay to the said Nathaniel and the rest the said several Legacies or sums of 50 l Sed non allocatur for in the recital of the said Bequest by the Will there is nothing mentioned to have been bequeathed to Nathaniel and tho' he covenants to pay to Nathaniel as well as the rest yet it is legationes vel summas praed ' and there being no Legacy to Nathaniel and that appearing by the recital of the Will his Covenant shall not oblige the Defendant to pay him any thing Et sic Judicium ê“ Defendente Trethewy versus Ellesdon IN Replevin The Plaintiff declared of taking his Cattle in a place called the Barnclose in Branwell in the County of Cornwall The Defendant made Conusance as Bayliff of Elizabeth Cossen and shews that Nicholas Cossen was seised in Fee of a Messuage and Lands of which the place where was and is parcel and being so seised the 9th of September in the fourteenth year of the late King Charles the Second by his Deed indented produced in Court did grant to the said Elizabeth Cossen an annual Rent of 10 l to be issuing out of the Premisses to have to the said Elizabeth and her Assigns for term of her Life payable at the usual Feasts and in case it were arrear that it should be lawful for her to distrain by virtue whereof the said Elizabeth Cossen who is still living became seised of the Rent for her Life and avers that the usual Feasts are our Lady Midsummer Michaelmass and Christmass and for 40 l for four years Rent ending at Michaelmass 1688. the Defendant took the said Cattle as a Distress for the arreat of Rent c. The Plaintiff demanded Oyer of the Indenture which was read containing as followeth viz. This Indenture made the 29th day of September c. between Nicholas Cossen c. of the one part and Elizabeth Cossen c. and Nicholas Cossen the younger Son of the said Elizabeth of the other part of witnesseth That whereas the said Elizabeth Cossen hath given and surrendred into the hands of the said Nicholas Cossen one Indenture of Lease of an Annuity dated the 15th of March 1657. of ten pounds yearly going out of all that his Barton and Demesn called Melder for a term yet to come as in and by the said Indenture of Lease more fully and at large appeareth hath Given Granted and Confirmed and in and by these Presents doth Give Grant and Confirm unto the said Elizabeth Cossen her Heirs and Assigns by these Presents one Annuity or Yearly Rent of ten pounds to be issuing and going out of all that his Barton c. to Have Receive and take yearly the said Annuity to the said Elizabeth Cossen and Nicholas Cossen the younger and the Survivor and Survivors of them at the usual Feasts in the Year by equal Portions and if it shall happen the said Yearly Rent to be behind after any of the said Feasts that then it shall and may be lawful to and for the said Elizabeth during her Natural Life and so the said Nicholas Cossen the younger after her Death to enter into the Premisses and distrain c. In Witness whereof
legalis monet ' Angl ' praed ' vicesimo octavo die Aprilis devenisset Decoctor Anglicè a Bankrupt infra Statut ' fact ' And became a Bankrupt contra Decoctores Anglice Bankrupts Et Jur ' praedict ' ulterius super Sacrum ' suum praed ' dicunt quod Termino Paschae anno regni dicti domini Regis nunc primo quoddam Judicium recuperac ' in Cur ' And a Judgment recover'd against him for 1000 l domini nostri Regis nunc coram ipso Rege apud Westm ' praed ' habit ' fuer ' pro mille libr ' de debito necnon septuagint ' tribus solid ' quatuor ' denar ' de dampn ' prout per record ' Judic ' praed ' in Cur ' dicti domini Regis coram ipso Rege apud Westm ' remanen ' plenius liquet apparet Et Jur ' praedict ' ulterius super Sacrum ' suum praed ' A Fieri fac ' issued out upon it dicunt quod quoddam breve de Fieri fac ' Jur ' praedict ' modo hic in evidenc ' osten ' super Judicium praed ' ê‘ praefat ' Aliciam Toplady emanat ' prosecut ' fuisset Vic' London ' direct ' per quod quidem breve mandat ' fuit Vic' London quod de bon ' catall ' praed Johannis Toplady in balliva sua Fieri fac ' tam praed ' mille libr ' de debito quam praedict ' septuagint ' tres solid ' quatuor denar ' qui eidem Aliciae in eadem Cur ' coram dicto domino Rege adjudicar ' fuer ' pro dampnis suis quae sustin ' tam occon ' detencon ' debiti illius qui pro misis custag ' suis per ipsum circa Sectam suam in hac parte apposit ' denar ' ill ' habeat ' coram dicto domino Rege apud West ' die lunae prox ' post CrinÌ„ Ascencon ' Domini ad reddend ' praefat ' Aliciae pro debito dampn ' praedict ' Quod quidem breve de Fieri fac ' postea scilicet vicesimo nono die Aprilis anno ult ' supradict ' deliberat ' fuit per praedict ' Aliciam pÌ„fat ' And delivered to the Sheriff Benjamino Thorowgood Thomae Kinsey tunc Vic' London existen ' in forma Jur ' exequend ' quodque praedict ' Benjaminus Thorowgood Thomas Kinsey praedict ' Georgius Benson tunc existen ' un ' Servien ' ad Clav ' eorundem Vic' per eor ' Warrant ' super praed ' breve de Fieri fac ' per ordin ' direccon ' praed ' Aliciae postea scilicet eodem vicesimo nono die Aprilir non antea bona catalla in Narr ' ipsor ' Nicholai Sabian ' menconat ' in custod ' ipsor ' A Serjeant at Mace by Order and direction of the Sheriffs seize the Goods in Execution That after seizure and before sale a Prerogative Process issued out against the Goods The Writ found inter verba Benjamini Thomae Kinsey receperunt asportaver ' seisiver ' Et Jur ' praedict ' ulterius super Sacram ' suum praed ' dixer ' quod duran ' tempore quo bon ' catall ' praedict ' sic fuer ' in custod ' praedict ' Vic' ac ante aliquam vendicon ' vel disposicon ' inde fact ' quidam Process vocat ' an Extent extra Cur ' dom ' Regis de Scaccario apud Westm versus praedict ' Johannem Toplady prosecut ' fuisset Tenor cujus quidem ê“pcess Jur ' praedict ' modo hic in evidence ostens sequitur in haec verba ss Jacobus Secundus Dei gratiâ Angl ' Scot ' Franc ' Hiberniae Rex fidei defensor ' c. Vic' London salutem cum Richardus Holder Edwardus Cooke ambo Mercat ' de Roodlane Richardus Powney Winecooper de Marklane London per scriptum suum obligator ' sigillis suis sigillat ' geren ' dat' septimo die Novembr ' anno regni nostri primo deven'tent ' in nobis quadragint ' libr ' bonae legalis monet ' Angl ' solvend ' ad certum diem pÌ„terit ' eas nobis nondum solver ' Inquisition found nec solvi fecer ' ut dicitur Cumque per quandam Inquisicon ' indentat ' capt ' apud Guihald ' Civit ' Lond ' scituat ' in Paroch ' sancti Laurentii in veteri Judaismo in Warda de Cheape ejusdem Civitat ' primo die Maij anno regni nostri secundo coram vobis praefat ' Vic' Civit ' The Bankrupt indebted London virtute brevis nostri de extend ' sub sigillo Scaccarii nostri versus praefat ' Ric. Holder vobis direct compert exist per Sacrum Daniel Man al. probor legal hom Civitat praedict ' quod quidam Johannes Toplady de London Vintner praedict ' die caption pÌ„dict ' Inquisicon indebitat exist praefat ' Richardo Holder in summa Centum sexagint librar bonae legalis monet Angl. pro tant denar debit pro Vin. per eundem Ric. Holder praedict ' Johanni Toplady vendit deliberat Quam quidem summam Centum sexagint librar praedict ' vos praefat ' Vic. dicto die caption Inquisition praedict ' virtute brevis pÌ„dict ' in manus nostras cap. seisiri fecistis ê“put per breve praed ' retorn ejusdem pred' Inquisicon eidem brevi annex in Scacc. nostrum certificat ibidem in custod Rememoratoris nostri remanen plenius apparet Nosque de dictis Centum sexagint libr. nobis jam debit omni celeritate qua poter ' satisfieri volen quod est Justum vob praecipimus quod non omitt propter aliquam libertat quin in ead ingred tam per Sacrum proborum legal-hominum de balliva vestra vel aliter per Sacrum testimonium aliquorum proborum legalium hominum de eadem balliva vestra per quos rei veritas melius scire poterit quam omnibus al. viis mediis modis quibus melius sciveritis aut poteritis diligenter Inquir quas terr quae ten cujus annui valoris praedict ' Ad Inquirend ' what Goods and Chattels Lands and Tenements Johannes Toplady habuit in dicta balliva vestra dicto primo die Maij anno regni nostri secundo quo die nobis primo debitor inde devenit seu unquam postea hucusque necnon quae cujusmodi bon catall cujus pretii Ac quae debit credit Specialit denar Sum. praedict ' Johannes Toplady modo habet in dicta balliva vestra eaque omnia singula praedict ' bon catall terr tenementa debit credit Specialit ' And to Extend them in quibuscunque manibus denar Sum. in quorumcunque man jam exist per Sactum praefat proborum legalium hominum diligent appretiari extendi ac in manus nostras capiatis
it could not appear upon the Record but that the Verdict was against the Plaintiff upon the mistake of the Action whereas here it appears upon the Matter at large set forth in the Special Verdict that Judgment was given against the Plaintiffs upon the Merits of of the Cause And the Court were of Opinion that the Plea in Bar was good in this Case but they took the Case of Putt and Royston to be a Case of the same nature For tho' the Issue were General yet in regard of the Averments which in every such Plea there must be it appears to the Court that the Matter was the same as well as here it doth upon the Special Verdict and if it were not the same so that the Plaintiff was barred to the former by mistaking the Nature of his Action the Averment might be traversed Therefore by reason of that Case Adjudged and the Importunity of the Plaintiffs Leave was given by the Court to speak further to the Case the next Term. The Earl of Mountague versus The Lord Preston IN an Action on the Case for the Profits of the Office of Master of the King's Wardrobe the Plaintiff Declared That King Charles the Second in the 23th year of his Reign granted him a Patent to hold the said Office for Life reciting a former Grant thereof to the Earl of Sandwich and the Surrender of that Grant And that the Defendant by colour of a Patent granted to him in the First year of the late King James had entred upon the Office and taken the Profits and had deprived the Plaintiff of the whole benefit and profit of the Office Vpon Not guilty pleaded it came to a Trial at the Bar this Term and it was insisted upon for the Defendant That the Plaintiffs Patent having recited a former Grant that they must prove that Grant to have been surrendred To which it was Answered That if they took advantage of the Recital they must admit all that was recited as well the Surrender as the Grant And of that Opinion was the Court. Then the Defendant produced the Earl of Sandwich's Patent and this the Court held would put the Plaintiff to prove a Surrender And a Surrender was shewn in Evidence accordingly Note It was said in an Action of this Nature that it is not necessary to shew every particular Sum received by the Defendant But it is a good Evidence for the Damage to shew the Profit of the Office communibus annis Anonymus AFter an Extent upon a Statute and a Liberate out of this Court the Writ was Habere fac ' terr' tenementa instead of Liberari facias and it was moved to amend the word Habere in the Writ and to make it Liberari And after divers Motions the Court Ordered the Amendment to be accordingly because it is a Judicial Writ 8 Co. 157. a. 1 Cro. 709. A Writ of Enquiry was awarded to the Sheriffs of London and it was quod Inquirat instead of Inquirant and it was amended Vid. the Case of Walker and Riches 3 Cro. 162. and the Case of Keer and Guyn Hob. 90. but in that Case the Roll was wrong in a very material thing for it was not said in the Elegit the Lands and Tenements of the Defendant Anonymus AN Action of Debt was brought in this Court for a Sum of Money recovered in the Hundred Court and the Defendant was admitted to wage his Law tho' at first the Court doubted Vid. Mo. 276. for a Wager of Law to an Action of Debt brought for an Amercement in a Court Baron Note When the Defendant hath his Hand upon the Book before he is sworn the Plaintiff is to be called and he may be Non-suited The Defendant is to bring his Compurgators but they may be less than Eleven and they are sworn de credulitate Anonymus AN Action was brought for speaking of these words of the Plaintiff He broke my House like a Thief And upon Not guilty pleaded a Verdict was found for the Plaintiff And the Court held the words not to be Actionable Anonymus IN an Action for Words spoken of the Plaintiff in saying He was a Clipper and Coiner After Verdict upon Not guilty pleaded it was moved in Arrest of Judgment that the Words did not charge him with Clipping and Coining of Money and Clipping and Coining might be apply'd to many other things But the Court held the Words to be Actionable in regard of the strong Intendment and such Words are understood by those that heard them to mean Clipping and Coining of Money Anonymus AN Attorney brought an Action for that the Defendant said of him He is a Cheating Knave and not fit to be an Attorney After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Communication of his Profession and the Words did not necessarily relate to his Practice But the Court held the Action would lye for saying That he was not fit to be an Attorney shewed plainly that Cheating Knave had reference to that Anonymus UPon a Motion for a New Trial it appeared that the Solicitor for the Plaintiff who also was an Attorney had wrote two Letters to two of the Jury before the Trial importuning them to Appear and setting forth the Hardships that his Client had suffered in the Cause and how he had Verdicts for his Title The Court set aside the Trial for this Cause and Committed the Solicitor to the Fleet for this Misdemeanor being Embracing of a Jury and before his Discharge made him pay Ten pounds to the party towards the Charges of the Trial. Pretious versus Robinson THe Cause being at Issue in Hillary Term last a Venire was awarded and a Jury Retorned upon it and in Easter Term after another Venire was awarded and a Trial was by a Jury Returned upon the two Venire's Vpon this the Court set aside the Verdict for there was no Authority for the two Venire's so all the Proceedings thereupon are void and not aided by the Statute of 16 Car. 2. Cooke versus Romney AN Action of Covenant was brought against two and it was quod teneat conventionem instead of teneant and after a Writ of Error brought it was moved that it might be amended and made teneant It was Objected That False Latin in an Original could not be amended as hos breve for hoc breve so in Waste destrictionem for destructionem Blackamore's Case 8 Co. But the Court granted the Motion and ordered the Amendment And it was said of late days it had been done in case of a word Mistaken in an Original as in Ejectment divisit for dimisit Vid. in Blackamore's Case the like 159. b. Imaginavit for imaginatus est was amended Anonymus IN Trover and Conversion for a Mare Vpon Not guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Mare was said ad valentiam and it should have been pretii Sed non
praedict ' that upon the 24th of November aforesaid a Writ of Extendi facias was awarded to the Sheriffs of London against the said Calvert for the said Debt of 5000 l commanding him to Enquire per Sacramentum proborum legalium hominum c. what Goods Chattels Debts Specialties Sums of Money c. the said Calvert then had and to extend and seise them into the Kings hands in whole hands soever they then were that the King might be thereout satisfied of the said Debt juxta formam Statuti pro hujusmodi deb ' dicti domini Regis recuperand ' Which Writ was Returnable the 26th of the said November and upon the 24th was delivered to the then Sheriffs of London who upon the 25th day of the said November by virtue of the said Writ took an Inquisition per Sacramentum c. by which it was found that the said Defendant Cramlington upon the 24th of the said November was indebted to the said Calvert in 500 l for Money received by him to the use of the said Calvert and that the Defendant made a Bill of Exchange dated the 10th of the said November directed to the said Ryder to pay to the said Price to the use of the said Calvert the Sum of 500 l and that the same was due to the said Calvert at the time of the Inquisition taken and that the said Sheriffs did thereupon seise the Debt and Bill of Exchange into the Kings hands secundum exigentiam brevis praedict ' and Returned the said Writ and Inquisition c. into the Exchequer prout per Recordum c. plenius apparet by virtue of which the King became lawfully entituled to the said 500 l and Bill of Exchange aforesaid And the Defendant further saith That afterwards scilicet the 9th of December Anno primo c. a Writ of Extendi facias was awarded out of the said Court of Exchequer against the said Defendant Cramlington for the said 500 l and thereupon be paid the said 500 l upon the 15th day of January Anno primo supradictio to the use of the King in plena exoneratione satisfactione praedict ' ult ' mentionat ' brevis de extendi fac ' praedict ' Billae excambij summae quingent ' librarum per Inquisitionem praed ' sic ut praefertur compertum c. and concludes with Averments viz. That he the Defendant Cramlington is the same so named with him in the Extent and that the 500 l the Bill of Exchange c. in the Inquisition found are the same with them mentioned in the Declaration c. and so demands Iudgment of the Action To this Plea the Plaintiffs Demurred And after divers Arguments Judgment was given in the Kings-Bench for the Plaintiffs in Easter Term in the first year of King William and Queen Mary And now it came to be Argued upon a Writ of Error in the Exchequer Chamber First It was alledged for Error that the Custom is laid so general viz. not only to extend to Merchants but all others so that it must be at the Common Law if to be allowed at all Sed non allocatur For in the Case of Sarsfield and Witherly lately Adjudged it was Resolved That a person not being a Merchant drawing a Bill of Exchange was bound according to the Vsage of it amongst Merchants and in Declarations upon Bills of Exchange the whole Matter is to be set forth specially Secondly There was as appears by the Bill of Exchange 25 Day given for the payment of it after the Date of the Bill whereas here the Request and Refusal is upon the 25th day after the Date Sed non allocatur For as the Bill is set forth it is to pay the Money ad viginti quinque dies post datum and this can't be if not paid at the Five and twentieth day Thirdly The Matter chiefly insisted upon for Error was That the 500 l was appointed to be paid to Price for the use of the Calvert so the right and interest of the Money was in Calvert by whomsoever it should be received and then it might well be seised for the Debt which Calvert did owe to the King But the Court held that the Seisure for the King ought not to have been in this case 1. For that tho' it were to be paid for Calvert's use yet this was but a Trust and the Right of the Money was in Price As if Goods be given to A. to the use of B. the property of the Goods is in A. Otherwise if Money be delivered to A. to pay to B. there the Right of the Money is in B. and he may bring an Action of Debt 2. Here the Bill is Endorsed over to be paid to the Plaintiffs before any Seisure or the Writ of Extent was issued forth and the Custom is expresly laid that an Endorsment might be as in the Case here which Custom is confessed and that determines the Right and Interest in the Money of him that makes the Endorsment and puts it in the Plaintiffs Wherefore the Judgment was affirmed Termino Sanctae Trinitatis Anno 2 W. M. In Scaccario Burchett versus Durdant IN a Writ of Error upon a Iudgment in an Ejectment in the Kings-Bench where the Plaintiff Mary Durdant declared upon the Demise of William Durdant of two Messuages 100 Acres of Land c. in Chobham in the County of Surrey Vpon Not guilty the Jury gave a Special Verdict That Henry Wicks was seised in Fee of the Premisses and by his Will in writing dated the 6th of June 1657. be Devised in the words following Viz. I give to my Cousin John Higden and his Heirs during the Life only of Robert Durdant my Kinsman all those my Messuages c. in Chobham in the County of Surrey upon this Trust and Confidence That he the said John Higden and his Heirs shall permit and suffer the said Robert Durdant during his Life to have and receive the Rents and Profits thereof which shall yearly grow due and payable he the said Robert committing no Waste And from and after the Decease of Robert Durdant then do I give the said Lands and Premisses in Chobham unto the Heirs Males of the Body of him the said Robert Durdant now living and to such other Heirs Male and Female as he shall hereafter happen to have of his Body and for want of such Heirs then to the use and behoof of my Cousin Gideon Durdant and the Heirs of his Body and for want of such Heirs the same to be and remain to the right Heirs of me the said Henry Wicks They find that Wicks died the 2d of December 14 Car. 2. seised as aforesaid and that John Higden entred and was seised prout lex postulat and by Deed bearing date the 1st of Jan. 14 Car. 2. reciting the said Will and that the said Robert Durdant and Gideon Durdant had Contracted with the said John Higden for the sale of the said
Mesuages Lands and Premisses And to the intent that the Contingent Remainder by the said Will limited to the Heirs Males and Females of the Body of the said Robert Durdant might be extinguished and destroyed he the said John Higden by the appointment of the said Robert Durdant did surrender his Estate in the Premisses to the said Gideon Durdant and by the said Deed it was Covenanted That the said Robert Durdant John Higden and Gideon Durdant should levy a Fine of the Premisses which should be to the use of the said John Higden and his Heirs They find that a Fine was levied accordingly in Easter Term 15 Car. 2. They find That Robert Durdant died on the 19th of August 20 Car. 2. and that John Higden after in 20 Car. 2. upon a valuable Consideration in money enfeoffed John Burchet of the Premisses and that the said Burchet died the 1st day of October in the same year and that the Premisses from him came to the Defendant Burchet who entred into the Premisses and became seised prout lex postulat And they find That Robert Durdant as well at the time of the said Will making as at the death of the said Henry Wicks had an only Son called George Durdant who was also Godson to the Testator and that the said George Durdant died and that William Durdant Lessor of the Plaintiff was his Son and Heir and entred and made the Demise prout c. si super totam materiam c. Vpon his Special Verdict Iudgment was given in the Kings-Bench for the Plaintiff And the Court here afterwards having heard the Case thrice Argued did affirm the Iudgment And the first Point spoken to was Whether the Estate did not execute in Robert Durdant by the Statute of 27 H. 8. of Uses For if so he would be seised of an Estate tail and then Burchet would have a good Title It is clear Lands may be Devised to the use of another as in Popham 4. 'T is true a Devise implies a Consideration and will lodge the Estate in the Devisee if no Vse be limited upon it Here it is Devised to John Higden and his Heirs upon trust and confidence that he should permit and suffer c. The word Trust is proper for the Limitation of an Use and the Estate shall Execute unless it be first limited to the use of a man and his Heirs in Trust for another there the Intention is that it should be only a Trust and here Robert Durdant is restrained only from doing waste which shews that he intended he should take an Estate or else he could not commit waste But Lands may be Devised to an Use tho' the Statute of Wills is since the Statute of Uses Mo. 107. 1 Cro. 343. The Court over-ruled this Point and Resolved it to be only a Trust in Robert Durdant for the words are That Higden should permit him to take the profits which shews that the Estate was to remain in Higden And for the restraint of waste it was proper for Higden was to permit Robert Durdant to have the possession but the Testator would not have him to commit waste or spoil The second and principal Point was Whether the Remainder to the Heirs of Robert Durdant now living did vest in George Durdant or was a Contingent Remainder It was much urged That one could not take in the Life of his Ancestor by the name of Heir for nemo est haeres viventis in the 1 Co. Archer's Case A Devise to Robert Remainder to the next heir Male of Robert and to the heirs Males of the Body of that heir Male this is Resolved to be a Contingent Remainder during the Life of Robert and it was said in that Case that the next heir Male is as much a designation of a person as an Heir now living He that will take by purchase by the name of Heir must be a compleat Heir to all intents Co. Littl. 24. b. 2 Leon 70. Chaloner and Bowyer 's Case upon a Devise But it was Resolved that this was a Remainder vested in George Durdant for the Remainder being limited to the Heirs of the Body of Robert Durdant now living and George being found to be then the only Son it was a sufficient designation of the person and as much as if it had been said to his Heir apparent and such an one is called Heir sometimes in proceedings in Law where the greatest strictness of phrase is used as in Writs of Ravishment of Ward Quare filium haeredem rapuit 2 Inst 439. Westm 2. cap. 35. 25 Ed. 3. the Statute of Treasons Treason to kill the Heir of the King The third Point was Whether George Durdant took an Estate Tail or only an Estate for Life for it was Objected that if the words Heirs of the Body were taken for the description only of the person who should take then he must take only for Life But the Court held that they would make an Estate Tail for Heirs is nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number A Devise to one for life Remainder to the heir Males of his Body for ever this is an Estate Tail in the Devisee Pawsey and Lowther in Rol. Abr. 2. Part 253. But in case the first words viz. Heirs of the Body now living would carry but an Estate for Life to George Durdant yet the subsequent words would make an Entail in him viz. and to such other Heirs Male and Female as he should hereafter happen to have of his Body this would clearly vest an Entail in George he being Heir of the Body of Robert and surviving Robert So the Judgment was affirmed Sed Nota as to the second Point the Lord Chief Baron Atkyns and Justice Powell seemed to be an Opinion that the Remainder was Contingent But in regard the Point had been upon a Writ of Error brought in the House of Lords upon a Judgment given in the Kings-Bench in another Case upon the same Will adjudged to be a Remainder vested they conceived themselves bound by that Judgment in the House of Lords Paschae Anno 2 Willielmi Mariae Memorandum BY an Order of the King and Council 1 Willielmi Mariae the Judges were Ordered to meet and all of them except Gregory Eyre and Turton were assembled at the Lord Chief Justice's Chamber to give their Opinion concerning Colonel Lundy who was appointed Governour of London Derry in Ireland by the King and Queen and had endeavoured to betray it and afterwards he escaped into Scotland where he was taken and brought Prisoner into England and Committed to the Tower Whether admitting he were guilty of a Capital Crime by Martial Law committed in Ireland he might be sent thither from hence to be Tryed there in regard of the Act of Habeas Corpus made Anno 31 Car. 2. which Enacts That no Subject of this Realm shall be sent over Prisoner to any Foreign parts But
and that Isaack Knight his Executor took a Capias thereupon out of the Common-Pleas Now it being a Statute-Merchant it ought first to have been certified into the Chancery and from thence a Capias should be issued out Returnable in the Court of Common-Pleas And so the Statute of Acton Burnel 30 Ed. 3. Enacts and so is Fitz. N.B. 130. whereas here the Capias goes out of the Common Pleas and for ought appears was the first step towards the execution of this Statute for it doth not appear that it was ever certified or that the Court had any Record before them to award this Capias upon and so the Execution is quite in another manner than the Statute provides and in a new Case introduced by the Statute and therefore it seems to be void and if so then the Statute of Knight could not be assigned so as to pass the Interest of it to Edward Lewis and the Fines will have no effect upon it and indeed it puts it clean out-of the Case before us as if it had never been acknowledged and the Interest of that Statute must be still in the Executor of Knight But then admitting it to have been extended and consequently well assigned together with Gerrard's Statute to Edward Lewis if so I take it to be drowned in Gerrard's Extent As to that the Case is no more than this that after the Statute is extended there comes another Extent upon a puisne Statute for 't is found that Gerrard's Statute was extended after Knight's Statute whether the Estate by Extent upon the puisne Statute be in the nature of a Reversional Interest for if so then when the Interest of the first Extent and the latter comes into one person the first must be drowned for an Estate for years or other Chattel Interest will merge in a Chattel in Reversion that is immediately expectant And that is Hughes and Robotham's Case in the 1 Cro. 302. pl. 32. If a Lease for years be made and then the Reversion is granted for years with Attornment the Lessee may surrender to the Grantee and the Term will drown in the Reversion for years To which it is Objected That an Extent is rather in the nature of a Charge upon the Land than an Interest or Estate in the Land it self In the Case of Haydon and Vavasor versus Smith in Mo. 662. an Extent is thus described that it is onus reale inhaerens gremio liberi tenementi tout temps Executory as the words of that Book are If the Tenant by an Extent purchase the Inheritance of part of the Lands extended the whole falls So a release of the Debt will immediately determine the Extent and it has been compared to one that enters into Lands by virtue of a power to hold until the arrear of Rent is satisfied It is true an Extent is an Execution given by the Statute Law for the satisfaction of a Debt and therefore the release of the Debt must determine the Estate by Extent because the Foundation of it is removed and so if the Inheritance of part of the Land extended comes to the Conusee it destroys the whole Extent whereas if a Lessee for years purchaseth the Reversion of part the Lease holds for the rest But in case of an Extent if it should be so the Conusee would hold the residue of the Land longer because the Profits that should go in satisfaction of the Debt must be less and this would be to the wrong of him in the Reversion But in other respects an Extent makes an Estate in the Land and hath all the properties and Incidents of and to an Estate and doth in no sort resemble such an Interest as is only a Charge upon the Land An Interest by Extent is a new Species of an Estate introduced by Statute Law Our Books say that 't is an Estate treated in imitation of a Freehold and quasi a Freehold but no Book can be produced that says that 't is quasi an Estate The Statute of 27 Ed. 3. cap. 9. Enacts That he to whom the Debt is due shall have an Estate of Freehold in the Lands and the Statute of 13 Ed. 1. de Morcatoribus say That he shall have Seisin of all the Lands and Tenements When a Statute is extended it turns the Estate of the Conisor into a Reversion and so are the express words in Co. 1 Inst 250. b. and so the Objection That he does not hold by Fealty is answered and there are no Tenures that are to no purpose but he that enters by virtue of a power to hold till satisfied an Arrear of Rent he leaves the whole Estate in the Owner of the Land and not a Reversion only If a Lease for years be made reserving Rent and then the Lessor acknowledge a Statute which is extended the Conisee after the Extent shall have an Action of Debt for the Rent and distrain and avow for the Rent as in Bro. tit Stat. Merch. 44. and Noy fo 74. but he that enters by a Power to hold for an Arrear of Rent shall not He in Reversion may release to the Tenant by Extent which will drown the Interest and emerge his Estate according as it is limited in the Release Co. 1 Inst 270. b. 273. Tenant by Statute may forfeit by making a Feoffment Mo. 663. He is to Attorn to the grant of the Reversion 1 Roll. 293. and is liable to a Quid juris clamat 7 H. 4. 19. b. Tenant by Extent may surrender to him in Reversion 4 Co. 82. Corbet's Case therefore these Cases are to shew That an Extended Interest makes an Estate in the Lands as much as any Demise or Lease And I take it the consequence of that is That when an Estate by Extent is evicted by an Extent upon a prior Statute as Elwaies and Burroughs Extent was by the Extent of Knight's Statute or where the prior Statute is first extended and then a Statute of later date is extended as Gerrard's Statute is found to be extended after the Extent upon Knight's Statute In both these Cases the Extent upon the puisne Statute will be in the nature of a Reversional Interest A Reversion is every where thus described viz. An Estate to take effect in possession after another Estate determined 'T is not in nature of a future Interest as a Term for years limited to commence after the end of a former Term for such an one shall not have the Rent upon a former Lease as I have shewn before but he that extends upon a Lessee for years shall for the Liberate gives a present Interest to hold ut liberum tenementum but indeed cannot take effect in possession by reason of a prior Extent or by prior Title And this is the very case of a Reversion which is an actual present Interest tho' it be to take effect in possession after another Estate Now I conceive it will plainly follow from this That Knight's Statute is drowned in Gerrard's