commence and he is seised in Fee and may hold it charged with both the Rents 2 H 5. 7. 5 H 5. 34. Ass 15. And this Estate surrendred is in Esse as to the benefit of strangers but not as to the benefit of him who accepted it for hee is seised in Fee vide Lillingstons case And the Court was of opinion that the Rent was revived and that the Contract is now determined Nota that this grant to Humphrey the Son for years was but upon confidence to assign it over If Grantee of an Estate for life of a Rent take an Estate for life of part of the Land and surrender it yet the Rent is not revived for it was extinct in this case if he had granted his interest quere and if he had granted his interest over to I. S. and he had surrendred it that shall not revive the Rent because that he had by his granting over of his interest discharged of the Rent extinguish it quaere but in the principall case the Rent was suspended by the acceptance of the Lease and is revived by the surrender And it was agreed that where Lessee for years surrender to which the Lessor agree and accept it the possession and the interest is in him without entry Hil. 3 Car. Sandford versus Cooper SAndford brought a Scire facias against Cooper to have execution of a Iudgment for sixteen pounds Sci. fac which Iudgment was de Oct. Hil. An. 2 Car. And one being returned Ter-tenant pleaded that after the Iudgment viz. 22 Jan. he against whom the Iudgment was viz. John Bill acknowledged a Statute-staple and sheweâ— that by that the Land was extended and after upon liberate delivered in Execution and demand Iudgment wherupon the Plaintiff demurred And the sole question was to what day the Iudgment shall have relation for it appears in the pleading To what day a Judgment shall have relation that the twentieth day of January was the day of Essoin and it seemed to the Court that the Iudgment should have relation to the first day of this return as well as if it had been a return in the Tearm viz. 15 Hil. for otherwise it should be uncertain And he may be Non-suited upon this day vide 5 Eliz. Dyer fol. 200. That a recovery being in the first return the Warrant of Attorney made and dated the fourth day is taken to be a Warrant after Iudgment and vide 33 E 6. fol 45 46. the principall case there If a Nisi prius taken after the day of Essoin shall be good and it is adjudged not for the first day is the return And it was agreed that in Common Parlance the first day of the Tearm is the fourth day viz. If one be obliged to appear or to pay monies the first day of such a Tearm Loquendum est ut vulgus But the Law relate the Iudgment to the first day of every return vide Dyer 361. a Release pleaded after the Darrein Continuance which was dated the one and twentieth of January which was the day after the Essoin day and it was not good for it ought to be before the utas Hillarii Gillinghams case And my Brother Harvey and Crook vouched one Gillinghams case viz. A Release of all Iudgments before the fourth day and after the day of Essoin would not release this Iudgment which was de Octab. Hil. vide many cases vouched to this purpose 4 E 3.34 H 6. 20. a Writ of Error brought after the utas and before the fourth that is good and brought after Iudgment vide 22 H 6. 7. a. a Writ of Error ought to be brought after the Iudgment rendred or otherwise no Execution shall be stayed And all the Court gave Iudgment for the Plaintiff in this Scire facias Hil. 3 Car. Holt versus Sambach Trin. 2 Car. Rot. 731. Replevin Tenant for life with a remainder to him in tail expectant and remainder in fee grant a rent in fee afterwards had fee by fine SIr Thomas Holt brought Replevin against Thomas Sambach in which upon Demurrer the Case was Sir William Catesby being Tenant for life of Land the remainder in tail to Robert his Son the remainder in Fee granted a Rent of ten pounds by the year out therof to William Sambach in Fee and Sir William and Robert his Son levied a Fine with Proclamations which was to the use of the said Sir William in Fee and afterwards the said Sir William enfeoffed Sir Thomas Holt and died Robert had Issue Robert and died And the Court was of opinion that this Grant in Fee is good for he had an Estate for life in possession and an Estate of remainder in tail and remainder in Fee in himself to charge and then the Fee-simple passe by the Grant And although that Robert the Son might have avoided it yet when he had barred the estate-Estate-tail c. by Fine to the use of Sir William now Sir William Catesby had by this acceptance of this Estate to himself avoided the means by which he might have avoided the Rent And although that in Bredons case in the first Book when Tenant for life and he in the remainder in tail joyn in a Fine rendring Rent to Tenant for life that passeth from every one that which lawfully might passe and that the Rent continue after the death of him in the remainder in tail without Issue yet in this case the Estate is barred by the Fine and united to that Estate which William the Grantor had and now William is seised in Fee and this Rent made unavoidable The Case was well argued by Henden and Davenport but it appeared that the Conusance was for twenty shillings part of the rent of fifty pounds behind and for fifty pounds parcell of two hundred pounds arrear for Nomine poenae and did not say in his Avowry that he was satisfied of the rest And therfore Iudgment was given for the Plaintiff vide 20 E 4. 2 a. 48 E. 3. 3. Chichley versus the Bishop of Ely Quare Impedit DAme Dorothy Chichley brought a Quare Impedit against Nich Bishop of Ely and Mark Thompson the Incumbent for the Church of Wimple and counted that Thomas Chichley was seised of the Advowson of the said Church in Fee as in grosse and presented to it being void Edward Marshall which was Instituted and Inducted and afterward the said Thomas Chichley died seised and the Advowson descended to his Son and Heir Sir Thomas Chichley Traverse upon Traverse who by his Deed indented c. for the increase of the Ioynture of the Plaintiff granted the said Advowson to Thomas East and Edward Anger and their Heirs to the use of the said Plaintiff for life and afterwards to the use of the Heirs Males of the body of Sir Thomas Chichley and that by force therof she was seised for life And the Church being hold by the death of the said Edward Marshall she presented and the
reasons the Court gave Iudgment for the Plaintiff And Serjeant Ward argued well and vouched divers good Cases The Writ of Detinue supposeth properly in the thing demanded vide 50 E. 3. 6. Cook versus Cook WIlliam Cooke alias Barker brought an Action of Wast against George Cook alias Barker and count against him as Tenant for life How a Writ of Wast shall be where there is a lease for life remainder in fee. of the Lease of George Cook and intitle himself to the Reversion Ex assignatione of the said George and shews that George Cook being seised in Fee and the Ter-tenant in Socage devised the Land to the Defendant for life the remaineer in tail to the Plaintiff And upon the Count the Defendant demurred And the Question was how the Writ should be where a Lease is made for life the remainder in Fee for it cannot be Quod de ipso tenet And it seems that the Writ shall be speciall upon the Case as a Fine levied to one for life the remainder in Fee the Writ shall be speciall upon the Case And it seems that it shall never be Ex assignatione but where the Reversion is granted over vide 38 E 3. fol. 23. the direct Case and vide 38 H. 6. fol. 30. in the Writ of Consimili casu vide F N B fol 207. in the Writ of Consimili casu qui illud tenet ad vitam D. ex Assignatione praedicti B. quam I. filius heres R. qui quidem R. illud praefat D. demisit ad eundem terminum inde fecit praefat B. c. The Estate for life with a Remainder over is but one Estate and it was a question at Common Law if he in remainder shall have an action of Wast vide 41 E 3. 16. 42 E 3. 19. 50 E. 3. 3. Reg. 75. But at this day the Law is cleer that he in remainder shall have an action of Wast F N B fol 207. but these Books prove that the Writ of Wast ought to be Ex divisione non ex assignatione Mich. 6 Caroli Case Words AN action of the case was brought for these words Thou art a Theef and hast stoln one Passions Lamb and marked it and denied it And upon Not guilty pleaded and Verdict for the Plaintiff Serjeant Ashley moved in Arrest of Iudgment because that it is not shewn whose Lamb for Passions is no word of any signification without the name of Baptisme And the Court was of opinion that the Count was good for it had been sufficient to call him Theef and then the subsequent matter and words aggravate and contain matter of Felony And it is a generall Rule that when the first words are actionable the latter words which toll the force therof ought to be such as do not contain Felony Babbington versus Wood. BAbbington brought an action of debt against Wood upon an Obligation of 600 l. the Condition was That if Wood resign a Benefice upon request that then the Obligation should be void A Condâ—tion to resign a Benefice upon request And the Condition was entred the Defendant demurred and Iudgment in Banco Regis pro querente And upon Error brought Iudgment was affirmed in the Exchequer Chamber for this Obligation is not voidable by the Statute of 14 Eliz. which makes Obligations of the same force as Leases made by Parsons of their Gleaves viz. Per non residency And it doth not appear by the Plea of the Defendant that it was not an Obligation bona fide which might be lawfull As if a Patron which hath a Son which is not yet fit to be presented for default of age and he present another with an agreement that when his Son comes to the age of 24. years be shall resign it it is a good Obligation And this Case viz. an Obligation with Condition to resign had been adjudged good in the case of one Jones An 8 Jac. And the Councel said that he who is presented to a Church is married therto Jones Case and it is like as if a man who hath married a Wife should be bound to be divorced from her or not co-habit with her these Conditions are void But these resemble not our Case Wilson versus Briggs WIlson brought an action of Account against Briggs as Bayly of his Mannor in the County of Cambr. Tryall of an action of Account upon receit in two Counties and also as Bayly to another Mannor in the County of Suff. And this action was brought in the County of Cambr. and found for the plaintiff and Iudgment to account and found in the arrearages and Iudgment given And now the Defendant brought a Writ of Error Iudgment was reversed because it was mis-tryed for it should be tryed at the Bar by severall Ven. fac to be directed to the severall Sheriffs First it is agreed that a writ of Account against one as Bayliff of his Mannor cannot be brought in another County but only in that County where the land lies vi 8 E. 3. fol 46. Fitz. Acc. 93. see there that two actions of Account brought against one for receit in two Counties And there it is said that it being upon a day that he may have one writ and count in the two Counties But to that it is said that that proves not but that he might have two Writs wherby it might be awarded that he should answer But in this case it was resolved that it was a mis-tryall for it ought to be by two Ven. fac and tryed at Bar and it is not aided by the Statute of 21 Jac cap 13. Trin. 8 Car. Purnell versus Bridge Hil. 6 Car. Rot. 1235. Fine to two and the heirs of one to the use of them two in fee. HEnry Pernell brought Replevin against William Bridge Robert Bridge and two others William Bridge plead Non cepit and the other made Conusance and upon Demurrer the case was such Richard Braken was seised in Fee of sixty acres of arrable Land and forty eight acres of Meadow and Pasture wherof the place in which c. was parcell And he the sixth of Febr. An 18 Eliz. by Deed granted an Annuity or Rentcharge of thirteen pounds six shillings out therof to Edward Steward in Fee payable at the Feast of Saint Peter or within eight and twenty daies after And if it be arrear for eight and twenty daies after the said Feast that then he forfeit for every Fine after forty shillings with a clause of Distresse as well for the said Rent as for the said forty shillings if it shall be arrear Edward Steward seised of the Rent died wherby it descended to Ioan Iermy Wife of Thomas Iermy Daughter and Heir of the said Edward Steward and they being seised therof in the right of the said Ioan An. 41 Eliz. in Crastino animarum levied a Fine of the said Rent to Robert Brook and Isaac Iermy and to the Heirs of Robert which Fine was to the
this Arraingnment the Iudges assistant sate with their heads covered as the ancient use hath been But the Serjeant at Armes was commanded to make Proclamation That the Iudges and all the Lords not being his Peers and all of the Privy Councell should be covered and others not And this was only in relation to the precedent usage and the right which appertain to the Iudges For in Parliament they being called by Writ use to be covered as oft as the Lord Chancellor or Keeper of the Great Seal which is Speaker puts on his Hat But now it is used that they put not on their Caps untill they have been requested by the Lord Speaker And when they are called into the Star Chamber or to Errors in the Exchequer Chamber they set covered with their Caps Pasch 7 Car. Risam versus Goodwin Mich. 5 Car. Rot. 2512. IN a Writ of Scire facias brought by William Risam against John Goodwin and Richard Peat Administrators of Thomas Cammon the Case was such The Court of Common Bench award not execution upon a Judgment given in grand Sessions in Wales The now Plaintiff William Risam recovered against Thomas Cammon a hundred pounds Debt and ten shillings Costs at the Grand Sessions holden at Carmâ—rthen and execution awarded and Nulla bona returned And upon Surmise that the said Thomas Cammon was dead and that the now Defendants had taken Letters of Administration a Scire facias issued against them and Nichil returned and after a Writ of Execution and that afterwards being returned by the Sheriff of the County Nulla bona testatoris a Writ issued to the Sheriff of the County of the Town of Carmarthen who returned Devastavit And because that the now Defendants had not Goods within the said County or within the County of the Town of Carmarthen or Jurisdiction of the Grand Sessions the Plaintiff procured a Certiori to the Justices of the Grand Sessions who certified the Record to the Chancery and by Mittimus it came to the Common Bench with directions Quia executio judicii praedicti adhuc restat faciend Mandant quod at the prosecution of the Plaintiff Vos fieri faciat de more secundum legem consuetudinem regni nostri Angliae fuit faciend Wherupon a Writ of Scire facias was awarded to the Sheriff of Hereford against the said Defendants to which they appeared And after many Imparlances they demurred upon the insufficiency of the Writ of Scire facias And this case was argued by Berkley for the Plaintiff and by Henden for the Defendant And the Cases put by Berkley were F N. B 243. a. b. 39 E. 6. 3 4 Ass in ancient Demesne and for the Damages surmised that he had nothing within ancient Demesne 21 E 3. 49. 21 H 7. 33. 8 Ass 27. 30 H 6 7. 3 H 4. 15. 1 Justitutes 59. in Frankalmoigne That Wales is parcel of England 1 E 3. Jurisdiction 45. 22 H 6. 58. 47. E 3. 6. 3. E 3. Quare Impedit 38. 35 H 5. 30. 19 H 6. 12. 52. vide the Statute of 34 H 8. for Wales and Writs of Error Henden argued to the contrary and his first reason was 1. That this Court of the great Sessions is an inferiour Court 2. The Record it self comes not but a Transcript 3. The Statute of 34 H 8. hath appointed the Execution and that should be pursued 4. This Innovation is perillous and never put in practice And he relyed upon the diversity When Iudgment in a peculiar inferiour Court comes into the Kings Bench or into this Court by Writ of Error and is affirmed then the Superiour supplies it and add strength to the Iudgment But when Iudgment is given in a Court of a Corporation and that is removed by Certiorari and sent by Mittimus that shall not be executed there vide 45 E 3. 25. Formedon in London vide 14 E 3. Tryals 23. 15 E 3. Record 35. New Book of Entries the last case in Writ of Error vide 8 E 3. 10. 26 H 6 8. 3 H 6. 16. 7 H 4. 8. 14 H 4. 25. H 5. 11. And he relyed upon 21 H 7. 35. and the case of 39 H 6. 3 4. and the case of ancient Demesne 7 H 9. 18. 37 H 6. 16. Dyer 369. And upon this Case the Iudges consulted and agreed that the Writ was insufficient And so Iudgment was given against the Plaintiff But it was said that upon this Iudgment so sent to this Court the Plaintiff might bring an action of Debt and so have execution But to make this Court an Instrument to serve an inferiour Court and to extend their Iurisdiction by this way as it were by a Windlace it is not lawfull Hil. 7 Car. Napper versus Sanders Pasch 6 Car. Rot. 1148. IN an Ejectione firmae brought by Robert Napper against Henry Sanders upon a Lease by Deed indented made by John Napper and Elizabeth his Wife and Francis Sanders upon Not guilty pleaged Remainder where it shall be said Contingent the Iury gave a speciall Verdict wherupon the Case was such Margaret Sanders seised in Fee makes a Feoffment to the use of her self for life without impeachment of Wast and after to the use of the Feeoffees for eighty years if one Nicholas Sanders and Elizabeth his Wife should live so long and if the said Elizabeth survive Nicholas her Husband then to the use of the said Elizabeth for life without impeachment of Wast and after the decease of the said Elizabeth to the use of Postumus Sanders Son of the said Nicholas and Elizabeth in tail And for default of such Issue to the use of Elizabeth Wife of the said Iohn Napper and Dorothy Sanders and the said Francis Sanders one of the Lessors and to the Heirs of their bodies remainder to the right Heirs of Margaret the Feoffor And there was a clause in the said Indenture that the intent of the Estate for years to the Feoffees was that the said Elizabeth Sanders might have the profits and not Nicholas her Husband who was a Prodigall Margaret Sanders dies and Dorothy dies without Issue the Feoffee enter Elizabeth Sanders dies Nicholas is yet alive and Posthumus dies without Issue Iohn Napper and his Wife and the said Francis entred and were possessed untill the Defendant as Son and Heir of the said Margaret entred and ousted them Et si super totam Materiam c. And the sole question was whether the remainder in tail to Posthumus and the remainder in tail to Elizabeth and Francis were contingent or executed And it was resolved by all the Court that the remainders were not contingent in the Estate for life which was to come to Elizabeth Sanders the Wife of the said Nicholas but were vested presently And it was agreed that the Estate for life if she survive her Husband was contingent and when that had hapned being by way of Limitation of an use it shall be interposed when the Contingent
happen as in Chudleys case Coke lib 1. fol 133. a Feoffment to the use of the Feoffor for life and after his death to his first Son which shall be afterwards born for his life and so to divers And afterwards to the use of I. D. in tail It is resolved that all the uses limited to-persons not in Esse are contingent but the uses to persons in Esse vest presently and yet these contingent uses when they happen vest by interposition if the first Estate for life which ought to support them be not disturbed And in this case it was a good Estate for life in Margaret And then gives the remane in the Feoffees for eighty years if Nicholas and Elizabeth Sanders so long should live and if Elizabeth survive Nicholas then to Elizabeth for her life and after her decease to Posthumus in tail and after his decease to the said three Daughters in tail so that there the Estate for years determines upon the death of Elizabeth and so also the Estate for life to Elizabeth which was contingent determines by his death And the Lord Darbies case a Feoffment to the use of Edward The Lord Derbies case late Earl of Derby in tail and then to the use of the two Feoffees for eighty years if Henry late Earl of Darby should so long live and after his decease to Ferdinand and to the Heirs Males of his body and for default of such Issue to the use of William now Earl of Derby And it was adjudged that the remainders vest presently And this possibility that Henry might have over lived the eighty years will not make the remainders contingent And in a Suit which was at Lancaster between Farrington and another Farringtons case upon a speciall Verdict there found about 8 Jac. and many times argued at Serjeants Inn it was afterwards adjudged a good remainder and not contingent And the same case in this Court upon a Scire facias for two have executor of certain Land for debt recovered against the Earl of Derby which Land was intailed by the same Conveyance c. brought against the Earl of Bridgwater and his Wife one of the Co-heirs of Ferdinand Earl of Derby was adjudged in this Court vide Borastons case Coke lib 3. fol 20. 14 Eliz Dyer 314. Lovies case Coke lib 10. 27 H 8. 24. 38 E 3. 26. 5 E 3. 27. 30. E 3. Collthurst and Bemchins case was urged that the remainder limited to B. for life and after that C. hath married Ja. S. then to the use of C. in Fee this is contingent and is collaterall And this case is not like to that And after Argument at Bar this Term it being argued before that the Lord Richardson was there who was of the same opinion we all concurred and Iudgment was entred for the Plaintiff Pasch 8 Car. Metcalfe versus Hodgson Case MEtcalfe brought an action upon the case against Hodgson and Wharton late Sheriffs of the City of York and count That wheras time out of memory c. there hath been a Court of Record holden before the Sheriffs of the said City upon the Bridge called Ousbridge An action of the case lies not against a Sheriff for taking of insufficient Bail being Iudges and that in this Court every one having cause of action arising within the said City had used to commence any action for debt there and that the Defendants being arrested by their bodies the Sheriffs had used to take Bayle of them and to let them to Bayle finding sufficient sureties and that the Sheriffs are also and time out of memory have been Keepers of the Gaol there And wheras the Plaintiff had brought an action against one Smith and recovered the now Defendants being Sheriffs had taken insufficient Bail of him c. And upon Not guilty pleaded it was tryed before the Lord chief Baron at York for the Bail are supposed to be taken at Wakefield but that was not alledged for any thing which appears to be out of their Iurisdiction And the Iury contrary to the direction of the Lord chief Baron gave Verdict for the Plaintiff And after many motions in Arrest and praying of Iudgment it was resolved that this act was done by them as Iudges and for this Iudiciall Act no action lay And though that the Bail by the event appear to be insufficient yet there is no remedy by action upon the case it being without fraud or corruption and not for reward And this Case differs nothing from the ordinary cases of all insufficient Bailes taken by any of the Kings-Bench Common Bench or Exchequer And that they having two Authorities in una persona it shall be taken to be done by that Authority by which they have power to vail and that is as Iudges of the Court and not as Gaolers for by this they have no power to Bail any and in this capacity they are only subject to an escape vide Dyer 163. Error cannot be assigned in that which the Court of Common Bench do as Iudges vide 12 E 4. 19. Conspiracy lies not for that which a Iustice doth as Iudge of Record Quaerens nil capiat per breve Mich. 8 Car. Hickes versus Mounford Trin. 7 Car. Rot. 514. Replevin REplevin brought by Walter Hickes against Simon Mounford and others the Defendants make Conusance as Bayliffs to Sir John Elliot Executor of Richard Giddy And that the place contain twenty acres and was parcell of the Mannor of Trevelun And that Thomas Archbishop of York and Cardinall and three others were seised of the Mannor wherof c. in Fee Traverse of a day and the third of June 11 H 8. by Deed inrolled granted to King H. 8. a Rent-charge of fifty Marks per annum out therof in Fee with clause of Distresse and convey the Rent by discent to E. 6. Mary and Elizabeth who by her Letters Patents granted it to Richard Giddy for life who made the said Sir John Elliot his Executor and died and for such a summ arrear they Avow c. The Plaintiff pleaded in Bar to this Avowry and confessed the Seisin of the said Arch-bishop and the others and said that the said Arch-bishop and the others the fourth of June 11 H 8. enfeoffed Peter Edgecombe in Fee of the said Mannor who conveyed it to Richard Edgecombe Knight who entred and licensed the Plaintiff to put in his Beasts which he did and that they were there untill by the Defendants distrained absque hoc that the said Arch-bishop and the others the aforesaid 3. June 11 H 8. granted the said Rent to the said King and his Heirs Modo forma prout the Defendants alledged Et hoc paratus est verificare The Defendants say that the Arch-bishop and the others granted the Rent to the King modo forma as they had alledged and Issue therupon and the Iury found That the said Arch-bishop and the others 11 H 8. recovered this Land against Sir
the Award of Costs were in full force and effect But that afterwards viz. such a time as well the said Iudgment de non pros as the said Iudgment of thirty pounds Debt against the now Plaintiff were evacuated wherupon the Defendant demurred And it having been often debated by Hitcham for the Defendant and Henden for the Plaintiff And now upon Oyer of the Record and of the Iudgment the Court gave Iudgment for the Plaintiff And the Lord Finch said that this action upon the case is grounded upon two misdemeanours 1. The procurement of the said Iudgment for Edw. L. after a Non pros entred for the Defendant And though the Iudgment was erroneous yet the now Plaintiff was vexed and imprisoned therby which indeed is the cause of this action 2. The taking therof unlawfully when the first Iudgment de non pros was in force and the Plea of Nil tiel Record go only to one of the Causes And admitting that there was never a Iudgment de non pros but that the Defendant had unlawfully procured a Iudgment and taken Execution therupon and procured the Plaintiff to be taken in Execution and Imprisoned this is cause of action And to that he hath not answered and therfore he ought to have pleaded Not guilty to that which he takes by protestation Iudgment pro quaerente Pasch 11 Car. Baker versus Hucking Adjudged B. Rs. Tenant in tail and he in Reversion make a I. case Pro ut aut vic TEnant in tail and he in Reversion joyn by Deed in a Lease for life he in Reversion devise the Land by his Will to one in Fee and dieth Tenant in tail dies without Issue and the Heir of him in Reversion and the Devises claim the Land And the sole question is if this Lease be a Discontinuance and it was adjudged a Discontinuance and then the Devise void for he had not a Reversion And the difference was taken when Tenant for life and he in Reversion joyn in a Lease by Deed for without Deed it is first a Surrender Discontinuance and then the Lease or Feoffment of him in Reversion it shall be the Lease of Tenant for life so long as he live and after the Lease of him in Reversion and yet they shall joyn in a Writ of Wast And in this case there is no question but if the Lease had been made solely by Tenant in tail that then it were a Discontinuance and the joyning of him in Reversion alters it not for that amounts to nothing but as a Confirmation and is not like to Bredons case Coke lib 1. fol 76. Where Tenant for life and he in remainder in tail levy a Fine for every one there passeth that which lawfully he may And upon Argument it was adjudged that it was a Discontinuance and not the Lease of him in Reversion but his Confirmation Iustice Crooke differed in opinion Mich. 11 Car. Lashbrookes Case Somerset LEwes Lashbrook an Attorney of this Court brought an action of Trespasse against I. S. for entring into his house and breaking his Close And in the new Assignment he alledged the Trespasse to be in a house called the Entry and in a house called the Kitchin and in his Garden and in one Close called the Court. The Defendant as to the force c. and to all besides the Entry plead Not guilty And as to his entry into the Court and Kitchin A Warrant to four and two of them execute it and the Tenements aforesaid of the new Assignment he plead that he had brought an action against a woman for Trespasse and had so proceeded that he recovered and had execution directed to the Sheriff of Somersetshire and therupon a Warrant directed to four speciall Bayliffs to arrest the said Woman and two of them at Minehead in the County of Somersetshire arrested her and carried her to the house of the Plaintiff in Minehead being a Common Inn and the Defendant entred into the said houses called the Entry and Kitchin and the Tenements aforesaid of the new Assignment to speak to the Bayliffs and to warn them to keep her safe And as soon as he could he returned wherupon the Plaintiff demurred And now Henden took two Exceptions the first was 1. That the Defendant had not pleaded to all the Closes but that was over-ruled for he justified in the tenements aforesaid of the new Assignment 2. The second was that the Warrant to the Bayliffs was to all and not Conjunctim and Divisim and therfore it should be by all and not by two only To that it was answered and resolved that when a Sheriff makes such a Warrant which is for the Execution of Iustice that may be by any of them for it is Pro bono publico And the very Case was adjudged 45 Eliz between King Hebbs Coke Littleton 181. b. And Iudgment was given for the Defendant Hil. 11 Car. Davies Case Hereford DAvies an Attorney of this Court brought an action upon the case for these words If I list I can prove him Perjured Words And the opinion of the Court was that they were not actionable for there is not any Affirmative that he was perjured but a thing which is Arbitrary and saies not that he would do it Iudgment pro Defend Mich. 7 Car. Rot. 1097. Alston versus Andrew Suff. Pâ—ter Alston Executor of Peter Alston brought an action of Debt upon an Obligation of a hundred and twenty pounds against William Andrew The Obligor and the Obligee make the same person Executor and Edward Andrew and count That the Defendants and one Francis A. became obliged to the Testator c. and that they did not pay it is the said Testator in his life nor to the now Plaintiff and one Francis Andrew Co-executor with the Plaintiff who is summoned and the Plaintiff admits to prosecute alone without the same Francis c. The Defendants demand Oyer of the Obligation which is entred in haec verba and plead that Francis A. in the said Writing named after the making therof made the said Francis Andrew and Barb. A. his Executors and died And that the said Francis A. accepted the Burthen of the Testament And after the said Peter Alston the Testator made his will and Constituted the Plaintiff and the said Francis his Executors and died Et hoc paratus est verificare unde c. wherupon the Plaintiff demur Trugeon and Meron Mich 2 Jac. Rot. 2663. Garret Trugeon Plaintiff against one Anthony Meron and others the Administrators of Benjamin Scrivin upon a single Bill The Defendants demand Oyer of the Bill wherby it appears that one John Simcocks was obliged to the said Trugeon joyntly and severally with the said Scrivin Quibus lectis auditis the Defendants sayd that the said Simcocks died intestate and that the Administration of his Goods was granted to the now Plaintiff who accepted the Burthen of the Administration and Administred the Plaintiff demurred
it is not deminâ—tion of his Honor to be sworn concerning that which he would not have to be put upon his Honor. Also it is a good Rule Testi non jurato non est credend in judicio And Princes are sworn to all their Leagues and Confederacies which is called Jeramâ—ntum confirmationis Hil. 2 Car. Winsmore versus Hobart Trin. 27 Eliz. Rot. 850. Wilts IN an Ejectione firmae brought by Thomas Winsmore against Michaâ—l Hobart upon a Lease made by Edward Long the Iury gave a speciall Verdict Habendum to parties not named in the Deed. William Lord Sturton seised of the Tenements in the Count in Fee by Indenture demised them to Thomas Hobart habendum to the said Thomas Hobart and to the said Michael Hobart Iohn Hobart and Henry Hobart Sons of the said Thomas for their lives and the life of the Survivor of them successively By vertue wherof the said Thomas entred and was seised for life And the Lord Sturton granted the Reversion to Thomas Long in Fee to whom Thomas Hobart attorned Thomas Long devised it to Edward Long in tail Edward Long died seised and the Reversion descended to Edward his Son the Lessor of the Plaintiff Thomas Hobart and Henry died Michael and Iohn survived Michael entred Thomas Long entred upon him and made a Lease to the Plaintiff who entred and was possessed untill the Defendant ousted him And Judgment was given for the Plaintiff The Habendum was void as to all them which were not parties to the Deed. Pasch 3. Car. Hartox and Cock's Case Entred Pasch 2 Car. Rot. 1761. Hertf. A Quare Impedit was brought by George Hartox and Cocks against the Bishop of Lincoln Advowson in grosse for life Lord Keeper of the great Seal Mary Hewes and David Dublin Clark for the Church of Essington The Issue being joyned by the Incumbent upon the Appendancy the Evidence given to the Plaintiff to prove it was such Henry 6. was seised of the Mannor in Fee and granted it to Mary his Consort for life Habendum una cum advocatione of the said Church The Queen Mary presented and after there was a Presentment by Laps then the said Queen presented again And afterwards Edward the fourth seised of the said Mannor presented and then Henry the seventh and Henry the eighth And the King Edward the sixth granted the Mannor and other Mannors and the Advowson to Sir Iohn Pawlet in Fee reserving Tenure in Capite for the Maonnrs and Socage Tenure for the Advowson And the said Sir Iohn Pawlet granted the Mannor and the Advowson to William Tooke in Fee who presented the last Incumbent and under this Title the Plaintiffs entitle themselves The Defend said that the said Wil. Took was seised of the said Advowson and it defended to William Tooke the Son and granted the next avoidance and it came to Mary Hâ—wes who presented the Defendant Dublin and the Evidence to prove that it was in grosse was Henry the third being seised in Fee of the Mannor of Essinton made a Lease therof to his Brother for life and excepted the Advowson and then upon the expressing of the Advowson upon the Grant of Edward the sixth and the reservation of severall Tenures And this was their Evidence And Serjeant Henden maintained that by this exception of the Advowson when it was granted for life made it to be in grosse for ever And he vouched 38 H 6. 13. Quare Impedit by the King against the Abbey of Sion and the Incumbent there by the Exception of the Advowson it was become in grosse and there one said at least during the Estate for life and that is all which is implyed by the Book for the Iudgment is for the King because that it being not appendant is passed not by the Grant by the Habendum una cum c. And though that the Court unement agreed that it is but in grosse for the Estate for life and that it is all one as if the King had granted the Advowson which is appendant for life and the Grantee dies and the Advowson is appendant again and yet he insisted and persisted to have a speciall Verdict found therupon And I moved my Brother Yelverton that before we admit of a speciall Verdict as it hath been used in former times to go to the Iudges of the Kings Bench and to put the case to them to know their opinion and when he came again and declared it we put it upon the Iury to try the matter and they came in and found for the Plaintiff And after that the Demurrer which was joyned for the other Defendant Mary was by consent entred for the Plaintiff vide Dyer 34 in appeal vide 7 H. 6. 37. Chidley's Case CHidley brought a Quid juris clamat and had Iudgment against the Defendant and the Plaintiff had made a Warrant to his Attorney for the receiving of his Attornment Quid juris clamat and the Defendant would have attorned but would not do his Fealty And the Presidents were that he ought to be sworn in Court and the entry of the Iudgment is that he did attorn And fecit fidelitatem and so he was sworn in Court vid. 37 H 6. 14. If he refuse to attorn being in Court he shall be committed for contempt Moyle said that that is Attornment but Prisot said that he should not have a Writ of Wast nor arraign an Assise untill he assent Trin. 3 Car. Rot. Humbleton versus Buck. Lincoln SImon Humbleton brought an action upon the case against Buck Case Assumpsit in consideration of defending Suit in maintenance of a Title of Common and counted that wheras a Controversie was between the Inhabitants and Tenants of Fletam and one Palmer for and concerning the having of Common in one parcell of Land which was a Sea-bank in which they had Common of Pasturs for taking by Cattell and also by taking and cutting the Grasse And wheras the said Palmer had brought an action of Trespasse against the now Plaintiff for entry made by him in the said close and for taking his Grasse pretending that the said Land in which he claimed Common was his severall and free from their claim of Common the Defendant in consideration that the Plaintiff had given to him a Iugg of Beer and that he at the request of the Defendant would prosecute and defend â—he said Suit for the maintenance of their Common against the said Palmer untill the determination therof he promised to pay to the Plaintiff one moyety of his charges and over and besides twenty pounds and that therupon he defended the said Suit and pleaded Not guilty and at the tryall therof Palmer was non-suited and that that was for the maintenance of the Common and that he expended in defence and prosecution of the said Suit forty pounds The Defendant confessed all the Inducement and also a promise sub modo and sayd that the said Palmer had brought Trespasse to which the Plaintiff had
fee 60 Devise and what said in tail inde 85 Dower barred by Joynture 51 E. ELegit the Sheriff ought to deliver the Moyety by meets and bounds 16 Essoign though the Writ be not returned 28 Essoin upon return of an alias Summons 43 Essoine shall not be allowed in Dower after Issue 69 Error in omission of additions 41 Estate derived from one and shews not how 15 Exâ—cutors to what intents they shall be before probat of the Will 30 Executor the same person made by the Obligor and by the Obligee 128 Execution shall be de bonis testatoris where the Executors breake the Covenants of the Testator 35 Execution shall not be awarded upon Iudgment given in the grand Sessions of Wales 117 Extortion 53 78 Estrayes where they may be fettered 67 F. FIne to two and the Heirs of one to the use of them two and their Heirs 112 Fine de Oct. puris where the Caption was 14. February 135 G. GRant of an Advowson without alledging it to be by Deed 54 Grantee of a Rent-charge takes a Lease of part of the Land and after surrenders it the Rent shall be revived 94 Tenant for life with a Remainder to him in tail expectant and remainder to him in fee 96 Grant a Rent in fee and after had fee by Fine 96 H. HEriot where the Lord shall loose it when the Tenant hath none 4 Habeas Corpus liberty cannot be given to a Prisoner therby 129 Habendum void to parties not named in the Deed 88 Hue and Cry and Debt upon that Statute 125 I. INdempnitas nominis and supersedeas inde 45 Infant where he shall appear by Guardian and where by Prochein amy 92 Inditements for Rape and Buggery 115 Inns how they may be erected or restrained 99 Information against a Subject for Extortion 53 Information where it shall be brought 98 Intermarriage where it is a release of a promise c. before marriage 17 Jurisdiction a Plea therto where part of the land lies in the Cinque Ports 74 Judgment to what day it shall have relation 95 Joynture bars Dower 51 L. A Lord where he may be sworn 87 Lease by Feme in speciall tail 84 Lease by Baron and Feme without reservation of any rent 102 Lease where the acceptance of a new Lease makes a surrender of the former 104 N. NOtice where it shall be upon a promise 80 Nusances 136 O. OUtlawry where it may be pleaded 53 Obligation by the Sheriff where void 52 Office of a Park-keeper is good if the King dispark the Park 86 Obligation to levy a Fine before a day who shall do the first act 48 P. PArdon 79 Parliament what shall be said a Session 61 Pleas severall and by severall Defendants upon joynt Contracts 26 Prescription for a way and no place to which c. issue joyned on the Prescription 10 Prescription to have Herbage 45 Prescription to have Deer in discharge of Tithes 57 Plea as Heir and shews not how 15 Prescription to have Common omni tempore anni without saying quolibet anno 1 Plea of Grant of an Advowson without alledging by Deed 54 Prohibition 22 Prohibition to Chester 59 Q. QVire Impedit c. 31. 36 Quid juris clamat 89 Quod permittat 28 R. REcord shall be good where the conveyance is delivered to be inrolled but is not inrolled 1 Release of land devised before it be vested 60 Rationabile parte bonorum 109 Recovery if the Town be omitted therin the Land doth not passe 106 Record matter of Record tryed per pais 20 Remainder where it shall be said Contingent 118 Rent tendred at the day 13 Rent Assumpsit lies not for it 34 Rescous by the Plaintiff in the first action 98 Request where necessary 2. 73. 106 Return insufficient of a Writ of Quare Impedit 24 S. Statutes What shall be said a Parish Church within the Statute of 43 Eliz. 93 Resolves upon the Statute of 3 H. 7. cap. 2. 2 Resolves upon 35 Eliz. cap. 1. concerning Sectaries 61 Resolves upon 5 Eliz. concerning Aliens 132 Resolves upon the Statutes concerning Souldiers 134 Upon the Statute of Hue and Cry 125 Statute-Merchant without day of payment 42 Statute of Limitations extends not to Arrearages of Rent reserved upon Indenture 109 So De rationable parte bonorum 109 Debt upon a poenall Statute is not gone by the death of the King 82 Sci. fac against a Sheriff to have Execution of monies returned levied by him 32. 11 Sci. fac by Baron and Feme the death of the one shall abate it 37 Sci fac against the Sheriff for taking insufficient Pledges 77 Surrender by Baron and Feme of the Estate of the Feme for life and the King in consideration therof makes a new Lease 7 Suspension of things where they may be revived 94 Supersedeas by the Wife upon an Exigent against Husband and Wife 86 T. TEnder of Rent at the day 13 Tithes and action therupon 121 Tithes of Wood and small tithes 77 Trespass by Baron and Feme for breaking the Close of the Baron and for the Battery of the Wife 59 Tryall where nul tiel vill it pleaded 31 Traverse upon Traverse 96 Traverse of a day 121 Town shall be intended whole Town 74 Traverse of Seisin 123 Tenure by Castleguard is Socage Tenure 91 Tryall of Treason how it shall be 131 Tryall of an action of Account upon receit in two Counties 111 Tryall of matter of Record by the Country 20 Trover and Conversion the Defendant justifie without confession of the Conversion 10 Treason persons attainded therof and set at large how they shall be brought to execution 21 V. VEnire fac from a Towne within a Parish 6 Ven. fac from divers Towns 27 39 Ven. fac where nul tiel vill is pleaded 31 Ven. fac of a Visne from a place known in a Town without making it from the Town 106 View counterpleaded 44 View upon a Quod permittat 28 Usurpation 66 Judgment in Dower upon Voucher 71 W. VVAter increase thereof in Westminster Hall 108 Waifes where they may be fettered and other learning therupon 67 Warrant to four and two only execute it 127 Warranty lineall bind not without Assets 22 Wast in cutting wood to make Cole-mines 19 Wast and inquiry of damages theron 45 Wast how the Writ shall be made where a Lease for life is made the remainder in fee 110 Writs and filing therof 112 WORDS I. S. is in Leicester Gaole for stealing a Horse 2 Welsh words 8 He is a cousening Knave and so I have proved him before my Lord Major for selling of me a Saphire for a Diamond 13 George is a cousening Knave and cousened a poore man of a hundred pounds and all the Georges are Knaves 14 He is a cousening Knave and hath cousened me of forty pounds 14 He is a false Knave and keeps a false Debt-book for he chargeth me with the receit of a peice of Velvet which is false 14 Thou art a pilfering Merchant and hast pilfered away my Goods from my Wife and Children 14 She is a cousening woman and hath cousened one of her Neighbours of four pounds and I will bring good proof of it 14 I doubt not but to see you indited for Sheep stealing 18 Forgery spoken of an Attorny 29 Thou hast forsworn thy self in the Councell before the Marches 34 Thou art a filching fellow and didst filch four pounds from me 34 I charge thee with Felony for taking money out of I. S. pocket and I will prove it 38 I have matter enough against thee for I. S. hath found Forgery against thee and can prove it 41 Forsworn where actionable and where not 44 He is a Bankrupt spoken of one not a Tradesman 45 He is a Bankrupt spoken of a Baker without alledging him to be a common Baker 49 Cousening Knave whether actionable or not 52 I will have him hanged for robbing in the high-way 58 Thou art a Theef and hast stoln my Corn 15 He is as arrant a Knave as any in England 72 I doubt not but to prove that the Plaintiff hath spoken Treason 75 Thou art a common Barretor a Judas a Promoter spoken of an Attorney 104 Thou art a Theef and hast stoln Passions Lamb and marked it and he denied it 110 Thou art a Theef and hast cousened my Cosin Baldwin of his Land 113 I will charge him with flat Felony for stealing my Ropes from of my Shop 113 Thou didst bring Faggots a mile and halfe to burn the Colliers 123 Thou hast made many false Certificates to the Major and Burgesses in that Court 123 Trust him not he is not worth four pence of a Tradesman 125 If I list I can prove him perjured 127 Thou old Witch thou old Whore I will have thee hanged if I can do it 132 I accuse Mr. Justice Hutton of high Treason 131 He is a Witch and an Inchanter and hath bewitched the Children of Strong 13 Errata PAge 1. line 28. for Bormis Inn read Bozuni's Inn p. 3. l. 19. r. grant p. 7 l. 25. blot out by p. 13. l. 2. r Witch p. 22. l. 20. for to the Secondary r. secondarily p. 24. l. 27. r. of p. 28. r. Quod permittat p. 49. l. 8. r. entire l. 24. r. Ignoramus l. 36. r. Lord Hobart the same p. 54. l. 18. the same L. 38. p. 56. l. 42. r. Vicaridge l. 54. r. folk p. 61. l. 9. r. vested p. 65. l. 37. r. Lord Hob. p. 76. l. 38. r. sold p 81. l â—â— r. Justices p. 88. r. Hartopp p. 99. l. 25. r. unwholesome p. 104. l. 35. r. Perpoint l ult r. demised p. 105. l. 23. r. Lessee l. 33. after One add Grants proximam Advocationem to and after l. ult r. admitted p. 107. l. 10. r. founded l. 15. r. trimming p. 109. l. 24 r. objection l. 25. r. Action p. 110. l. 14. r. property l. 19. the Ter-tenant r. and held the said lands l. 37. r. dimisione p 112. l. 10. r. time l. 24. put out which granted p. 214. l. 8. r. agreed l. 35. r. rendred p. 116. l. 5. r. Georges p. 117 l. 24. r. Certiorari p. 119. l. 23. r. her l. 35. r. to p. 130. l. penult r. according
without Custom nor the Lord cannot commit during the Minority of an Infant Copyholder without Custom Hil. 15 Jac. Rot. 906. Smith versus Stafford Brownlow Suff. ANdrew Smith and Anne his Wife Case against Richard Stafford Executor of Jeremy Stafford in an Action upon the Case the Plaintiff counts that wheras there was Communication had of a Marriage between the said Anne when she was sole and the said Jeremy Where inter-marriage release a promise made by the Husband to the Wife before marriage the said Jeremy in consideration that the said Anne would take him to her husband promised that if after the Marriage the said Jeremy dyed living the said Anne he would leave the said Anne worth a hundred pounds and aver that she did marry the said Jeremy which died and did not leave her worth a hundred pounds And upon Non assumpsit the Iury found for the Plaintiff and in Arrest of Iudgment it was alledged that this intermarriage had extinguisht the action vide 11 H 7. 4 21 H. 7. 30. Coke 8. 136. there in Sir John Needhams case many cases are put vide Hoes case that a Release do not discharge Bail before Iudgment for it is contingent vide one Iudgment Hil 6. Jac. in the Kings Bench Rot 132. Thomas Belcher and Elizabeth his Wife Belcher and Hudson against Edmond Hudson an Action upon the case in consideration that the said Elizabeth at his request would take one Thomas Mason his familiar Friend to her Husband he assumed and promised that if the said Elizabeth survived the said Mason that he would pay yearly to her forty shillings for her maintenance and shews that therupon she did take the said Mason to her Husband and survived him and then married with the Plaintiff the Defendant pleads a Release from Mason of all Actions Demands c. and it was adjudged no sufficient release But Lord Hobart said that if he had released all promises that would have discharged the Defendant vide 4 Eliz Release of all Actions Suits Quarrels c. doth not release a Covenant before it be broken but otherwise of a release of all Covenants as it appears in Dyer 57. though the principall case was a release of all Covenants untill such a day and Covenants were broken before and not discharged for it being broken before there was no Covenant as to that Vide Lampets case Coke lib 10. 51. the reason of the release in Hoes case was because that it was contingent and uncertain and 17 Eliz a Lease to the Husband and Wife for life the Remainder to the Survivor of them for one and twenty years the Baron grant it over and survive yet it is void because it was contingent And the Lord Hobart said that the promise was released by the inter-marriage and so shall be in the case of an Obligation for Fortior est dispositio legis quam hominis and he held that strongly to be Law but Iustice Winch and Iustice Hutton held the contrary and that the Law will not work a release contrary to the intent of the parties and that the marriage which is the cause do not destroy that which it self creates Trin. 6 Jac. Jurden versus Stone Glocest EIectment upon a Lease made by Alice Remington of a Copyhold in South Corny Walter B. Copyholder in Fee married the said Alice And there was a Custom in the Mannor that the Wife shall have the Copyhold as of Franck-banck during her Widowhood Where a woman may enter in and bring an action tâ—â— beâ—â—â— Franck bank before admittance Si tam diu casta viveret and had used to challenge it and the Lord granted it as appears by divers admittances of women and this Wife after the death of her Husband came into Court and challenged her right of Franck-bank and prayed to be admitted and that the Steward refused and she made a Lease for one year to the Plaintiff and if he might bring this action by reason the woman was not admitted for it was agreed that no Fine was due to the Lord was the question And upon the Evidence it was resolved by the Court that this Estate ariseth out of the Estate of the Husband And as Lord Hobart said it budded forth of the first Estate and it seemed that where Tenant for life is admitted that shal be the admittance of him in remainder Also if the Free-hold of the Copyhold be granted over and the Husband dies there there cannot be any admittance and yet she may enter and in this case if any admittance had been necessary she had done all that she could do and that amounts to an admittance in Law to an Estate created by the Custom and by the act of God and Law A Tenant alieu and the Feoffee tender the services and gives notice the Lord refuse this is sufficient and the Lord shall be compelled to avow upon him Continuall claim amounts to an entry Pasch 16 Jac. Rot. 444. Blands Case Case GEorge Bland brought an Action upon the Case against A. B. the Defendant having some communication with one Eagle said that he was a troublesome fellow and he doubted not but to see him indicted at the next Assises for Barretry or Sheep-stealing as George Bland was Words for George Bland was indicted the last Assises for stealing of Sheep and it was not averred that he was not indicted but that he was of good fame It was moved in Arrest of Iudgment that it is not actionable and so was the opinion of the Court for it is not a direct affirmative vide the case of Steward against Bishop before fol. 1. And if one saies I suspect you for stealing my Horse And Iudgment was given for the Defendant Trin. 16 Jac. Darcy versus Askwith Brownlow Ebor. JOhn Lord Darcy of Ashton brought an action of Wast against Robert Askwith now Knight and John Marshall Wast and assigne the wast in Woods viz. In cutting down and selling two Oakes foure Ashes in a Close called Tisley Close two Okes in Parsons croft one Ash in Pinder croft and sixty one Oakes in Preston Lands Wast in cutting of wood to make Cole mines and in divers other Closes in Swillington and Preston The Defendant plead a Lease of the Mannor of Swillington to him for years and also of the Mines and justifie the shrowding of the Trees to make Punchons Poles and Stakes and other Vtensils in and about certain Pits called Cole-mines in one of the Closes without which the Defendants could noâ— dig and take Coles out of the said Pits and aver imployment about of the said Cole-mines justifie the cutting of other trees for the making of Instruments for the extracting of the water out of the said Pits and that without which they could not dig any Coles and they were necessary for the digging of Coles and for supporting the Pits and aver the Imployment And therupon the Plaintiff demurred And we all agreed
he had nothing else to say but submit himself to the mercy of the King And there execution was awarded and a Roll made therof and so it was done in Lepu's case as the President was shewn and he was committed to the Sheriffs of London and Middlesex and by them he was brought to the Gatehouse and the next day which day the Lord Mayor of London came to Westminster to take his Oath he was beheaded in the great Court at Westminster and he died in a good and religious manner and spake much without any fear of death submitted himself to the Block and by his death gained great reputation in this life and by the grace and mercy of God remission of his sins and eternall life afterwards c. Bishop and others FAther Tenant in tail hath Issue two Sons the Father with the eldest Son makes a Feoffment with Warranty the eldest Son dies Lineall Warranty and after the Father dies the younger Son brought his Formedon and this Feoffment with warranty of the eldest Son is pleaded in Bar and upon Demurrer Iudgment for the Demandant For it is but a lineall Warranty and then without Assets it is no Bar for though the eldest Son dye in the life of the Father yet the younger Son by possibility might have the Land as Heir to him Mich. 16 Jacobi AN action of Debt was brought upon the Statute of 5 Eliz. for perjury against one that was produc't as a Witnesse in an action of Trespasse and deposed falsely And upon Nil debet pleaded the Plaintiff was non-suit Costs shal not be allowed upon a non-suit in an action brought upon the Statute 5 Eliz. of Perjury And whether the Defendant should have costs or no was moved by Serjeant Harvy and that stands upon the words of the Statute of 23 H. 8. cap. 16. the words are In any Action Suit Bill upon the Case or upon any Statute for any Offence or wrong personall immediatly supposed to be done to the Plaintiff The opinion of the Court was that the Defendant should not have costs upon this non-suit because that this action is founded upon a Statute made long after the making of that Statute Also this is not an immediate wrong to the Plaintiff but to the Secondary for it is an immediate wrong to the truth and such Statutes which are intended by this Act shall be like to Trespasse done to the party himself as Ravishment of Ward Also it is not aided by the Statute of 4 Jacobi cap 3. for that gives costs to the Defendant where the Plaintiff shall have costs if he recover And Mr. Brownlow the Prothonatory said that it had been ruled so before for the Plaintiff should not have costs if he recover because the Act 5 Eliz. gives a Penalty viz. a forfeiture of twenty pounds against the Witnesse and forty pounds against the Suborner and so the Plaintiff if he had recovered should not have had any costs and therfore it is not aided by the Statute of 4 Jacobi Mich. 16 Jacobi Conesbies Case THe Lady Conesby being the Wife of Sir Ralph Conesby was cited into the Ecclesiasticall Court by Mr. Watts Prohibition who had married Elizabeth the Grand-child of the Father of Sir Ralph to which Grand-child by Will one Legacy of a hundred pounds was devised and that was pass 3 Jac. by the Lady Conesby Executor of the first Testator and upon payment an Acquittance under the hand and Seal of the said Watts was c. in the presence of two Witnesses now dead And this being denied and they allowing of no proof by comparison of hands nor by circumstances but only proof of them which wrote it or of them which saw them subscribe And by their Law an Acquittance of the Husband for a Legacy to the Wife without the Wife is not sufficient also if Watts himself will deny it upon his Oath there it shall stand against all proofs A Prohibition was granted upon the motion of Serjeant John Moore and after Serjeant Harvy had said all that he could say Trin. 16 Jac. Rot. 954. Kind versus Ammery KInd Plaintiff in a Replevin against Ammery Replevin The Avowry was for a Rent-charge and the Grant was of a rent of twelve pounds payable at two Feasts Demand not necessary in an Avowry for a Rent-charge and if it vs behind for the space of a month after any of the said Feasts it being lawfully demanded that he might distrain and for Rent arrear at the Annunciation and by the space of a month after and not paid he distrained And the Plaintiff demurred upon this Avowry and shewes for cause that it is not shewn that the Avowant made any demand before the Distresse And Serjeant Harris relied upon a Case which was An 31 Eliz. as he said and vouched the number Roll Bosdens case that upon demurrer between Bosden and Downes there the Avowry was not good for the same cause And Maunds case Coke lib. 7 fol. 28. implies that it ought to be demanded but it is not issuable if it be at the day or after And he said it was debated 31 Eliz. whether it was form or substance which shall not need to be shewn upon Demurrer But the Court agreed that no actuall demand was necessary to procede the Distresse in this case but that the Distresse is a demand But if the Grant has been penned in this form if it be arrear at such a Feast and for a month after demand that then he may distrain otherwise it is for there the Distresse is limited to the month after the demand And so it was adjudged in this Court between Coppleston and Langford Trin. 3. Car. Rot. 2865. Copplestone Langford Replevin between Beriman and Bower Avowry for Rent granted out of ten acres of Land in Crediton payable at such a Feast upon the Town stone upon the Key in Barnstable if it be lawfully demanded with clause of Distresse and the Distresse was before demand and upon demurrer it was resolved a good Distresse without demand vide Dyer 348. Booton against the Bishop of Rochester A Quare impedit was brought by Booton against the Bishop of Rochester who pleads that he claims nothing but as Ordinary and yet pleads further that the Clerk which the Plaintiff present had before contracted with the Plaintiff Simoniacally Insufficient return on a Writ in Quare Impedit to the Arch bishop and therfore because he was Simoniacus he refused him and that the Church was then void and so remained void wherupon the Plaintiff had a Writ to the Arch-bishop of Canterbury who returned that before the coming of this Writ viz. 4 July the Church was full of one Mr. Doctor Grant ex collatione of the said Bishop of Rochester which had collated by Laps and this return was adjudged insufficient First it is clear that though the six months passe yet if the Patron present the Bishop ought to admit although it
Plaintiff to have execution against the said Thomas Elme and so was aiding and assisting unto the said Thomas Elme Wherupon the Defendant demurred and it was adjudged by the Court that this prosecution of a Writ of Error to discharge himself of an erroneous Iudgment is no breach of the Condition no more then if the Plaintiff had released and he had brought an Audita Querela And it shall be intended in this case of a Suit to be solely commenced by the said Thomas Elme and if he will restrain him that he joyn not in a Writ of Error it ought to be precisely contained in the Condition and shall not be taken by a large Exposition to the forfeiture of an Obligation by a generall and ambiguous sentence It was urged that the Defendants had power to have severall Writs of Error 11 H 6. 9. But the Court resolved that being the Costs were joynt they ought to joyn vide Coke lib 6. fol 25. but the release of one will not bar the other vide 34 H 6. 42. 35 H 6. 10. that this Suit is in discharge of the Defendant and not to charge the Plaintiff and therfore the Condition is not broken vide Dyer 253. A Condition to suffer a Lessee quietly to enjoy the word suffer guide all the sentence in favour of the Obligor and Iudgment cannot be reversed in part and stand for the other part or be reversed against one and stand in force against the other except in speciall cases As where Infant Tenant for life and he in remainder of full age levy a Fine that shall be reversed as to the Infant and stand for the remainder for it is no other then as a Conveyance Mich. 18 Jac. Powell versus Ward AN action of the case was brought for these words Case Words I have matter enough against thee for Iohn Halden hath found forgery against thee and can prove it And after Verdict it was resolved by the Court that the words are too generall will not maintain an Action no more then if one said that another had forget a Warrant for it might be a Warrant for a Buck and this is not right Affirmative Sherley versus Underhill A Quare impedit brought by George Sherley Baronet Quare Impedit Error in Quare Impedit against Underhill and Bursey for presenting to the Vicaridge of the Church of Nether Elington and count of a Nomination as appendent to the Mannor of Elington and Issue therupon for they pretend it to be appendent to the Rectory of Elington And it was found for the Plaintiff at Warwick Assises and Iudgment there for him and a Writ to the Bishop and therupon a Writ of Error was brought in the Kings Bench and it was to remove a Record which was between George Sherley Knight and Baronet and the truth was that Sir George is not neither was named Knight by all the Record And therfore the opinion of the Court was that the word Knight is part of the name and so no Record was removed And it is so materiall that the addition where there is none or the omission where it is Knight makes it no such Record and they perceiving it discontinued their Writ Memorand That though Iudgment was given at the Assises the Writ of Error was directed to the Lord Hobart and the Record is demurrant in the Court of Common Berich And now it was moved that the Iudgment might be amended for it was Quod recuperet presentationem suam ad Ecclesiam praedictam And the value sound of the Church aforesaid And it should be Quod recuperet praesentationem ad vicariam Ecclesiae valorem vicariae Ecclesiae And it was urged that it was not the mis-prision of the Clerk but of the Court and Iudgment erroneous in point of Law is not amendable for if it be Quod capiatur where it should be Quod sit in miserecordia it is not amendable But it was resolved and so awarded by the Court that it should be amended And the reason is because the Verdict is generall and they found for the Plaintiff and the Iudgment ought to agree with the Verdict But it is solely mis-prise by the default of the Clerk for the Record precedent is in every part and in the Issue and Verdict Vicariam Ecclesiae And by the Statute 8 H. 6. cap. 15. that is amendable for the mis-prison of the Clerk in the Record shall be amended though it be in the Iudgment Wilde and Woolfe Mich. 33. 3â— Eliz 230. vide Dyer 258. Also Mich. 33. 34 Eliz Rot 230. between Wilde and John Woolfe Ideo considerat est quod praedictus Thomas Wild recuperet versus praedictum Thomas Woolfe where it should be John and Error was brought and it was amended Stepney and Woolfe 42 Eliz Rot 693. An action of the case by Stepney against John Morgan Woolfe Id. consid quod recuperet versus praedictum Morgan Woolfe and there was no such Defendant but John Morgan Woolfe and it was amended upon Error brought in the Exchequer Chamber And vide Coke lib 8. fol. 164. Blackamores case more cases upon this learning where the mis-prison of the Clerk in the entry of the Iudgment of a thing which is apparent and not of necessity shall be amended as in Mis-prision of the summ of Arrerages before and pending the Writ of Annuity shall be amended vide 9 Eliz Dyer 258. Mich. 18 Jac. Sir Thomas Wentworths Case Replevin SIr Thomas Wentworth brought Replevin the Defendant avowed for a Rent granted Demand of Rent with a Nomine poenae after Issue joyned upon other matter and a Nomine poenae and shews not any Demand of the Nomine poenae But the Issue was tryed and found upon other matter viz. Non concessit And now it was moved in Arrest of Iudgment that he avowed for a Nomine poenae and did not alledge any demand therof yet Iudgment was given for the Avowant For it is matter confessed and the Action is a request viz. the Avowry for he is there the Actor And it is but a Circumstance collaterall to the right And in Actions upon the Case founded upon a promise after request a Licet saepius requisit shall be a sufficient Allegation of a request Davies Case Statute-Merchant without day of payment ONe Davies acknowledged a Statute-Merchant at Glocester in three hundred pounds and the Statute did not limit any day of payment and yet an Extent was sued And upon motion by Serjeant Harris a Supersedeas was awarded for that is no Statute for they had not pursued the Authority given by the Statute For the Statute of Acton Buanell 11 E. 1. saies if the Debt be not paid at the day And though Debt upon an Obligation is payable presently if the day be not expressed yet there the Statute appoint a day certain Pasch 15 Jac. Rot. 1714. Cartwright versus Underhill Trover and Conversion AN action of Trover and
Defendant brought a Writ of Error in the Exchequer Chamber upon a new Statute and after divers terms Hall died and after the Plaintiff was non-suited without mention made of his death Tadcaster brought two Scire facias against Hobs and upon two Nihils had Iudgment Hobs brought an Audita Querela alledging the death of Hallowell before Scire facias and before Capias and it was adjudged that the Audita Querela well say and Hil 4 Jac Rot 975. between Timberley and Calverly Scire facias brought against the Bail and he pleaded that the Principall died before Capias returned against him And Iudgment upon argument given against the Plaintiff The like Iudgment between Iustice Williams and the Sureties of one Vaughan Hil. 19 Jac. Rot. 312. or 3125. Walrond versus Hill London Debt WAlrond brought an action of debt upon an Obligation of three hundred pounds against William Hill with Condition that if Thomas Harris and Elizabeth his Wife One bound to levy a Fine before such a day who shall do the first act before the end of Easter Term next shall levy a Fine before the Iustices of the Common Pleas by due course of Law to the use of the Plaintiff that then c. the Defendant pleaded that before the end of the said Easter Term the Plaintiff did not purchase any Writ of Covenant pro fine leuand wherupon a Fine might be levied according to the course of Law The Plaintiff replyed that the fifteenth of April the said Thomas for money enfeoffed another of parcel of the Land that was to be conveyed by the Fine And that the said Thomas and Elizabeth his Wife have not any Estate or Interest in the said parcell so conveyed wherof they may levy a Fine And upon this Replication the Defendant demurred And upon argument at Bar by Serjeant Harvey for the Plaintiff and Serjeant Henden for the Defendant the first question was If the Bar be good Intant que le Defendent est oblige That Thomas Harris and Elizabeth his Wife shall levy a Fine he ought to procure that to be done at his perill semble al 4 H. 7. 3 H. 6. Condition that John S. a stranger shall take Alice D. to his Wife before Mich. If I. S. refuse the Obligation is forfeited And therfore it was urged that he ought to procure a Writ of Covenant at his perill But the Lord Hobart held that the Plaintiff ought to procure the Writ of Covenant to have made himself capable of the Fine And he put this case if I. S. be obliged that I. D. shall enfeoff I.N. the Obligee such a day I. N. ought to be upon the Land or ought to make a Letter of Attorney to receive the Livery or otherwise the Obligation is not forfeited And when a Covenant is to levy a Fine he which is to do the first act c. vide Palmers case Coke lib 5. fol 127. 4 E. 3. 39. 18 E. 3. 27. 11 H. 4 18. 21 E 4. 2. The second question was whether this Obligation be ferfeited being that the said Thomas Harris had made a Bargain and Sale of part of the Land to another before so that he was disabled at the time to levy a Fine And we all agreed that the Condition was impossible and is all one as if he had disabled himself afterwards as in Maynes case Coke lib 5. 21. where the Covenant was to make a new Lease upon surrender of the former Lease there if he which ought to make the new Lease disables himself to make a new Lease and to accept of the Surrender by granting the Reversion for years he ought not to do the first act viz. Surrender but the Covenant is broken And in this case it is all one as if one who had granted the Reversion for years or for life Covenant that he upon Surrender will make a new Lease he had broken this Covenant being disabled at the time And it was said and agreed by the Court that the Fine to be levied ought to be an effectuall Fine which might operate to convey the Land according to the Covenant Burnell and Brook One case was vouched in this case to be between Burnell and Brook where the Condition was that he should acknowledge a Iudgment and a good Bar that the Plaintiff had not purchased an Originall Writ for he ought to make himself capable of Iudgment acknowledged to him vide 34 E. 1. Fitz Debt 164. A Condition that if he present the Obligee to a Benefice that then c. Though the Obliges taken Wife by which he is disabled to take it put he ought to present and offer him to the Ordinary to refuse him Vide 28 E 4. 6. where parcell of the Land was recovered yet Debt lies for entry Damages recovered in a Court of ancient Demeasn which case was then vouched but it is not much to the purpose And afterwards we all agreed that the Plaintiff should have Iudgment Hord versus Cordery A President was shewn which was thus IN the County of Wiltes Richard Hord Clerk Vicar of Chute Case brought an action upon the Case against William Cordery and Bridget his Wife and Dorothy Cox Conspiracy for one malicious confederacy of charging the Plaintiff with the felonious Raye of the said Dorothy Cox and procured him to be examined before Sir Anthony Hungerford a Iustice of Peace and therupon was bound in a Recognizance to appear at the next generall Sessions of the Peace at Devises and from thence was bound over to the Assises And there the Defendants An 15 Jac before Sir Thomas Flemming and Tanfield Iustices of Assise preferred one Bill of Indictment of their malice aforesaid and by the procurement of the said William and B. the said Dorothy shewed to the grand Inquest whether it were true or false And the Iury perceiving the malice and the falsiâ—y did not find it to be true and gave their Verdict by Ignorance Vpon Not guilty pleaded by William and Bridget and non informatus by Dorothy the Iury found for the Plaintiff and after a Writ of Error An 15 Jac and 20 marks costs for the delay Ego vidi recordum est bien pleivement aver que il ne ravish le feme est ent Hil. 10 Jac. Rot. 92. 1. 1. Trin. 20 Jac. Hawkins versus Cutts HAwkins brought an action upon the case against Cutts Case and declared that he was of good Fame c. and for the space of eight years last past had used the Art and Mystery of a Baker Pandopatoritae and had gained his living by buying and selling the Defendant said of him He is a Bankrupt Knave And not guilty Words it was found for the Plaintiff And in Arrest of Iudgment it was moved that it is not shewn that he was a common Baker neither had used the Trade but used the Art and Mystery of a Baker And there is as Serjeant Hobart said as much skill
and art used by Bakers of Bread in private mens houses as by common Bakers And every â—ooman which bake in private if she be a good Housewife use the art and mystery of a Baker And if a man had said generally that he had gained his living by buying and selling and not shewn what Trade he had used it is not good Therfore the Trade ought to be alledged and so sufficiently that the Court may judge him such a person as is within the Statute of Bankrupts Also Winch said that it is not alledged that he gained his living by buying and selling any thing which concerne his Trade And I was of the same opinion and relyed upon the case of 11 H. 4. 45. An nation upon the case against an Inn. keeper and shewed that he was lodged there and his Horse was stoln And the Defendant pleaded a plea that he delivered to him the Key of the Stable c. And by the Court the Writ shall abate because he did not shew that he was a common Hostler And therfore Iudgment arrested And the Court agreed that if the Count were good the words would maintain an action for a Baker is a Trade mentioned in the Statute 5 Eliz. but it ought to be a Common Baker Trin. 20 Jac. Whiteguift versus Eldersham Second deliverance JOhn Whiteguift brought a Writ of second deliverance against Richard Eldersham for taking of his Cattle at Clanding in quodam loco vocat Corles Paud. The Defendant makes Conuzance as Bayliff to Sir Francis Barrington because that the place c. was parcell of the Mannor of Curles and that John Curles was seised before the time Avowry c. therof and held it of Sir Francis Berrington as of his Mannor of Clanding by Knights servies viz. by Homage Fealty survitium scuti and by the Rent of ten pounds payable yearly at two Feasts of which Rent the said Sir Francis was seised by the hands of the said John Whiteguift as by the hands of his very Tenant in his Demsn as of sea and Avow put Homage infect wherupon the Plaintiff demur And shew for cause that the Defendant had not shewn any Title to have Homage of the said John and that the Cognizance is repugnant and no sufficient Seisin alledged of the Services and that the shewing of the Seisin is not formall vide Bevils case Coke lib 4. fol 6. Seisin of Rent is the Seisin of the Services and he might have traversed the Tenure and the other party ought to shew whether he had done Homage before vide 44 E. 3. 41. when an Avowry is upon the Baron for the Homage of the Feme it is sufficient Avowry without shewing that he had Issue by her and yet if he had not Issue he could not avow upon the Baron but that ought to come on the other party vide 5 E. 2. Fitz. Avowry 209. A man avow for Homage and alledge Seisin of Esenage without Homage and good And after upon motion this Term Iudgment was entred for the Defendant Trin. 20 Jac. Sherwells Case MAry Sherwell brought a Writ of Dower Dower and in But therto it was pleaded that the Father of the Husband of the Demandant was seised of one house and sixty acres of Land in Fire and made a Feoffment to the use of himself for life and after to the use of the Husband and the said Mary for their lives Joynture which bars Dower for the Ioynture of the said Mary the remainder to their Heirs And that afterward the Father died in the life of the Husband and aftre the Husband died And adjudged that this is no Ioynture to bar Dower according to the opinion in Varnons Case because that the Estate of the Wife at the Commencement take not effect immediatly after the death of the Husband Et quod abinitio non valet tractu temporis non convalefeit And if a Feoffment to the use of the Baron for life the remainder to I. S. for years remainder to the Feme for her Ioynture this is not a Ioynture he bar Dower Trin. 20 Jac. Francis Curle versus James Cookes AN action of the case was brought and Count Case that the King by his Letters Patents An 12 Jac. reciting the Statute of 31 H. 8. for erecting of the Court of Wards and the Officers therof and that two persons shall be named by the King and his Successors who shall be Auditors of the Land of the Kings Wards And reciting the Statute of 33 H. 8. for the making of the Master of the Wards and Liveries and his power had made him the Plaintiff one of his Auditors and granted to him the Fees due and accustomed to be had and 40. Marks fee and gave power to him as one of his Auditors according to the said Statute and to exercise it with the Fees in as ample a manner as others had used And averred that at the time of the Patent made and at all times after the erection of the said Court the Auditors had engrossed all the Accounts of the Feodaries and that they had taken therfore two shillings and shewed that he was sworn and exercised that Office and shewed the Oath specially and that he had by vertue therof ingrossed divers Accounts of the Feddaries and had taken therfore two shillings and that the Defendant having conference with the Plaintiff concerning his Office and his bone gesture therin said to him You have received money for ingrosement of Feodaries innuendo the said Fees for ingrosement of the Accounts of the Receivers Feodaries and other Officers aforesaid which I will prove is Cousenage And then and there spoke further You are a Couseâ—er innuendo the said Francis decepisse Dominum Regem 8. subditor in executione officii praedicti and you live by Cousenage deceptionem dicti Domini Regis subditorum shorum in executione officii ful Non Culp verdict pro Plaintiff and Damages thirty three pounds It was moved in Arrest of Iudgment by Attho that first it is alledged that the Fee of two shillings is lawfull and that he said You have received monies for ingrossement of Feodaries which I will prove is Cousenage innuendo the Fees aforesaid which are lawfull and then by his own shewing it is not Cousenage 2. It is insensible Ingrossements of Feodaries for they cannot be ingrossed but their Accounts 3. That Ad tunc ibidem for the other words are for other words spoken at another time of the same day and they are not actionable for they do not relate to his Office Also the words will not maintain action for the word Cousenage is generall and of an ambiguous interpretation and therfore no action lies for that And he resembled it to Sir Edmund Stanhops case He hath but one Mannor and hath got it by swearing and forswearing Midlemore and Warlow And to the Case of Midlemore and Warlow An. 30 Eliz. Thou art a cousening Knave and hast cousened me
font and twenty years that then I. S. shall have the Land and it shall be good vide Dyer 33. Coke lib 10.46 Lampets case But Tuesday the eleventh of February the Lord Hobart by our direction because that we were streightned of time and Howell was so importunate for Iustice that we could not argue delivered the opinion of the Court that Iudgment should be given for the Defendant And he declared that as to the point of a Fee-simple which he called the mounting of one Fee-simple upon another we now declared no opinion But we all without difficulty resolved that this release of Noy be it a Condition or not had discharged it And as to him it is an Interest used by the Devise but not executed untill it happen And therfore in Lampers case there the Release discharged it for there he had no Title executed but vested and commenced and so may have Noy Howell the Plaintiff in this case and it is not like to an Heir in the life of the Father for be is a stranger and he hath no Title at all and yet his Release with Warranty bars him and here this Release is accompanied with Warranty of which nothing was spoken Also as to Noy it is a Condition according to the words of the Will and therfore sans question that Noy had barred himself The Vacation after Hil. 20 Jac. MEmorand That on Munday the seventeenth of February at Serjeants Inn upon the assembly of all the Iustices to take consideration upon the Statute of 35 Eliz. cap. 1. for the Abjuration of Sectaries the Atturney-generall and Serjeant Crew being there Resolutions upon the Statute of Eliz. cap. 1. concerning Sectaries after the perusall of the Statute and the Continuances therof it was first upon debate considered whether this Statute was in force or discontinued and upon the perusall of the Proviso in the Statute of Subsidy and upon reasoning the matter these Points were resolved 1. If a Parliament be assembled and divers Orders made What shall be said a Session of Parliament and a Writ of Error brought and the Record delivered to the higher house and divers Bills agreed but no Bills signed That this is but a Convention and no Parliament or Session as it was An. 12 Jac. in which as it was affirmed by them which had seen the Roll it is entred that it is not any Session or Parliament because that no Bill was signed vide 33 H 6 Brook Parliament 86. every Session in which the King signes Bills is a Parliament 2. It was agreed that if divers Statutes be continued untill the next Parliament or next Session and there is a Parliament or a Session and nothing done therin as to continuance all the said Statutes are discontinued Beriatim Jones Chamberlain Hutton Denham Haughton Dodderidge Winch and Bromley declared their opinions that this Statute is discontinued And that the Statute of Subsidy is a Parliament and that every Parliament is a Session but not e converso for one Parliament may have divers Sessions as the Parliament 1 Jac had four and ended An 7 Jac. vide 33 H 6. Br. Parliament 86. And that this Proviso is not to any other purpose but to continue their proceedings in the same Estate as if this Act had not been made and if this Proviso had not been then this Statute had been discontinued by this act of Subsidy but when this ends and is determined then is the Session ended then it is a Session scilicet a Parliament which ought to be pleaded at the Parliament holden c. and all the Commissions of Subsidy are accordingly and the Proviso call it a Session Then this being done the Lord chief Baron did not deliver any opinion for he said that he had not considered the Statute and afterward it was desired that the Lords would deliver their opinions and therupon the Lord Hobart declared his opinion accordingly That it seemed to him that it was a Session and that it was not safe to meddle with such Law and that he would never refuse to declare his opinion with his Brethren After the Lord chiefe Iustice Ley made a long discourse concerning the purpose and intent of Parliament scilicet That it was not their purpose to destroy so good Lawes and therfore it was not any such Session as was within the intent of the preceding Parliament which was that these should determine when it is a Parliament or Session in which good Lawes are made And Doderidge said that it was fit to see the Commission and that that which hath been said was not to bind any one but every one spoke what then he was advised of and peradventure might change upon better consideration And afterwards upon Tuesday on an Assembly of the two chief Iustices the chief Baron Iustice Haughton Baron Denham Hutton Chamberlain and Jones the Attorney-generall brought the Commission de 12 El. June 1. and that had these words Pro eo quod nullus Regalis Assensus nec responsio per nos praestat fuit nullum Parliamentum nec aliqua Sessio Parliamenti lata aut tent fuit They have power to adjourn this Parliament thus begun And the Commission to dissolve this Parliament 38. Feb. An. 19 Jac. had the same words saving that he recite that he had given his Royall assent to an act of Subsidy by which was intended that it should not be a Session And upon view of the Commission the Lord chief Iustice moved that the King was mistaken in this that he had given power to dissolve this Parliament which had not any Session and if it be a Session then he had no power to dissolve it and then it is as it were a recesse and a Parliament cannot be discontinued or dissolved but by matter of Record and that by the King alone and if the Parliament yet continue then this Statute also continue during the Parliament by the Proviso but that would not serve for first it is against the intent of the King and against his Proclamation And also the case is truly put in the Commission as to the matter in fact and he is not mis-informed but mistaken in the Law and then the Commission for the dissolving is good semblable to the Lord Shandoi's Case and other Cases vide in Cholmleys case But because that all the Iudges were not at this Conference therfore it was deferred untill the next Term and in the interim the Grand Secretary and the Attorney-generall were to inform the King that the Statute is obscure and had not been put in ure and that we could not agree Mich. 20 Jac. Rot. 2805. Bawtry versus Skarlet Sussex JOhn Bawtry Clerk Case brought an action upon the case against Benjamen Skarlet one of the Attorneys of this Court by Bill and count In consideration that the Plaintiff will confesse Judgment the Attorney promise to defer the entry of the Judgment c. that wheras one William Carter Trin. 20 Jac.