made a Feoffment to the use of himself for life the remainder in tail to I. S. He in the remainder Levied a Fine And the Counsel of the Marches upon a surmise That the Tenant for life died seised according to their Instructions would settle the possession upon the heir of Tenant for life against the Conusee For their Instructions were made That where a man had the possession by the space of three years that the same should be settled upon him until trial at Law were had But the whole Court was against it because it doth appear that he had but an estate for life and so the possession appertained to him in the remainder And here it was said by Justice Barckley that their Opinion hath been That the possession of Tenant for life should be the possession of him in the Remainder as to this purpose Note that the Principal case here was although the Case before put was also agreed for Law thus Tenant in Tail levied a Fine to the use of himself for Life the remainder in Fee to I. S. and died In that Case the Council in the Marches would settle the possession upon the heir of Tenant in tail against the Purchaser who held in by the Fine which had bar'd the estate tail by which the Issue claimed and the whole Court was against it for which cause a Prohibition was granted 80. Habeas corpora was directed to the Porter of Ludlore to bring the bodies of Iohn Shielde and William Shielde into the Kings Bench the case shortly as appears upon the retorn was this Powell the Father brought a Bill in the nature of an Information against the said Iohn and William Shield before the Council of the Marches in Wales for an unlawful Practice Combination and Procurement of a clandestine Marriage in the night betwixt Mary Shield a Maid-servant and the Son of Powell who was a Gentleman of good credit and worth the Parson also being Drunk as he himself sware and the same also being without Banes or Licence for which offence they were severally Fined to the King and an hundred Marks damages given to the Plaintiff and farther ordered by the Council that they should be imprisoned till they paid their several fines to the King and damages to the Party and found Sureties to be bound in Recognisance for their good behaviour for one year and till they knew the farther Order of the Council and these were the causes which were retorned And upon this retorn Glynn who was of Counsel with the Prisoners moved many things and many of them as was conceived by the Court altogether impertinent But the Objections which were pertinent were these First That the Councel of the Marches as this case is have no Jurisdiction because the clandestine Marriage is a thing meerly Spiritual and therefore not within their instructions The second was That they have exceeded their Instructions in that they have given damages to the party above fifty pounds For by their Instructions they ought not to hold Plea where the Principal or Damages exceed fifty pounds But as to the first he said there may be this Objection That they did not punish them for the clandeâ—â—inâ— Marriagâ— which in truth is a thing meerly Spiritual but for the unlawful Practise and Combination and for the execution of it To which he answered That they have not Juristiction of the Principal and therefore not of the Accessory here note that it was afterwards said by Bramston Chief Justice That the unlawful Practise and Combination was the Principal and the clandestine Marriage but the Accessory which was not contradicted by any Farther it was objected by Glynn That they were Imprisoned for the damages of the Plaintiff and it doth not appear whether it was at the Prayer of the Party as he ought by the Law Bankes the Kings Atturny-General contrary And as to the first Their Instructions give them power to hold Plea of unlawful Practises and Assemblies And this is an unlawful Practise and Assembly and therefore within their Instructions And although that Heresie and clandestine Marriage and such offences per se are not within their Instructions yet being clad with such unlawful circumstances and practises they are punishable by them As to the second he said The Instruction which restraineth them that they do not hold Plea above fifty pounds is only in civil Actions at the several suit of the party But there is another Instruction which gives them power where the cause is criminal to assess damages according to the quality of the Offence and at their discretions As to the third Objection he said That the Retorn being that they were in execution for the damages it ought to be meant at the Prayer of the Party otherwise it could not be For which causes he prayed thâ—â— the Prisoners might be remanded And the whole Court Crooke being absent were clear upon this Retorn That they should be remanded because it appeareth that their Fines to the King were not payed And therefore although that the other matters had been adjudged for them yet they ought to be remanded for that one And as to the Objections which were made the Court agreed with Mr. Attorney except in the point of Damages and for the same reasons given by him But as to the point of the Damages whether they have gone beyond their Instructions and so exceeded their power in giving above fifty pounds damages or not It seemed to the Court they had and as it seemed to them if the Retorn had been That the Kings Fines were paid it would have been hard to maintain that the assessing above fifty pounds damages was not out of their Instructions but because the Kings Fines were not paid they were Remanded without respect had thereunto for the reasons given before 81. It was said by the Court That when Judgment is given in this Court against another and Execution upon it and the Sheriff levieth the mony the Lord Keeper cannot order that the mony shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it for notwithstanding such Order he may call for it And it was farther said by the Court That an Attachment shall not be granted against the High Sheriff for the contempt of his Bayliffs And a Writ of Error is a Supersedeas to an Execution but then there ought to be notice given to the Sheriff otherwise if he notwithstanding serve the Execution he shall not run in contempt for which an Attachment shall be granted 82. Serjeant Callis came into Court and moved this case Chapman against Chapman in Trespass done in Lands within the Dutchy of Cornwal which were Borough-English where the custome was that if there were an estate in Fee in those Lands that they should go to the younger Son according tthe custome but if in Tail the should descend to the Heir at Common Law And it was moved by him that the custom was not good because it cannot
say per scriptum obligatorium and to conclude that it was secundum formam statuti will not help it but in a Verdict it was agreed to be good 76. pl 117. Apothecary brought an action upon the case upon a promise for divers wares medicines of such a value the Desendant pleads in bar that he payed to the Plaintiff tot tantas denariorum summas as the medicines were worth and shews no sum in certain and therefore naught 77. pl. 120. A. and B. were bound to stand to and observe such order and decree as the Kings Counsel of the Court of Requests should make A. brought an action against B. and pleaded that the Counsel of the King of the said Court made such order and decree and that the Defendant did not observe it the Defendant pleaded that the King and his Counsel did not make the decree which is naught 78. pl. 126. Where a bad plea shall be made good by Verdict See Title Verdict 2. If a man plead an affirmative plea as that he hath saved the Plaintiff harmless and doth not shew how it is naught otherwise of a negative plea as non damniâ—icatus c. 121. pl. 200. What shall be said to be an argumentative plea what not 207. pl. 247. Pleas of the Crown Bayliffs endeavour to break open a house to serve an Execution upon the owner who not desisting upon his threats he shot and killed one of them it is not murder but man-slaughter 3 pl. 7. Many notable resolutions upon the Statutes of Winchester and 27 Q. of Robberies 10 pl. 28. Pledges Judgement reversed for want of Pledges 17. pl. 40. In a Replevin brought in an inferior Court and no Pledges de retorno habendo taken by the Sheriff according to the Statute of W. 2. ca. 2. upon the plaint removed into the Kings Bench that Court may find Pledges and that any time before Judgement 46. pl. 72. Presentments in Courts Presentments taken in an Hundred Court were quashed because that it is not the Kings Court and therefore coram â—on judice 75. pl. 115. Priviledge If the Clerk of a Court be elected into any office which requâ—res his personal constant attendance as Churchwarden or the like he shall have his priviledge otherwise not as for watching and warding and the like 30. pl. 65. Ordered by the upper House of Parliament 16 Caroli that onely menial servants or such as tend upon the person of a Knight or Burgess should be priviledged from arrest 92. pl. 157. Debt against a husband and his wife as executrix who are sued to the Exigent and at the retorn of it the husband being an officer in the Exchequer came into Court and demanded his priviledge and whether as this case is he shall have it or not quâ—ere 149. pl. 219. Prohibition A man libelled in the Ecclesiastical Court against one for these words Thou art a drankard and usest to be drunk thrice a week upon which a Prohâ—bition was prayed and granted 6. pl. 11. 66. pl. 103. If the Ecclesiastical Court proceed upon a Canon which is contrary to the Common Law Statute Law or Custom a Prohibition lies 22. pl. 50. 67. pl. 74. Two joynt Tenants of Tythes the one sues in the Ecclesiastical Court without the other or a Feme Covert solely for deâ—amation this is no cause of Prohibition 25. pl. 26. pa. 47. pl. 112. See pa. 93. pl. 112. Upon a Petition to any Ecclesiastical Judge without suit there no Prohibition lies 45. pl. 70. A man is compellable in the Ecclesiastical Court to repair a way which leads to the Church but upon a Libel there to repair a highway a Prohibition lies 45. 70. Tenant in Taâ—l levyed a Fine to the use of himself for life the Remainder in see to I. S. and died the Counsel of the Marches wou'd settle the possession upon the Heir of the Tenant in Taâ—l against the purchasor upon which a Prohibition was granted 51. pl. 79. Libel for Tythes for barren Cattle upon a suggestion that the party had no cattle but for plough and pale Prohibition was granted the same Parson libelled for Tyth of Coneys upon which a Prohibition was also granted 58. pl. 87. No Prohibition after sentence in the Ecclesiastical Court 73. pl. 111 92. pl. 156. Many men recover Costs in the Spiritual Court one of them releases the others sue there for their costs this is no came of Prohibition Baron and Feâ—â—e recover costs there for defaming the wife the Baron releases this will not baâ— the wife 73 pl. 112. See pa 25. pl. â—6 pa. 4â— pl. 〈◊〉 Contract betwixt the Vicar and a 〈◊〉 shiâ—ner to pay so much for 〈…〉 Tythes the Vicar dies his 〈…〉 in the Ecclesiastical Court for them 〈◊〉 on which a Prohibition was granted by reason of the real contract which is a temporal thing 8â— l. 1â—0 Libel in the Ecclesiastical Court for these words 〈…〉 upon which a Prohibition was granted 89. pl. 144. Where the Ecclesiastical Court hath conâ—sance of the cause though they proceed erroneously a Prohibition will not lie 92. pl. 152. See pa. 98. pl. 169. 〈◊〉 The Ecclesiastical Courts may hold plea of an excuse for not going to Church and no Prohibition lies 93. pl. 162. Where there are several Moâ—â—ses there several Prohibitions shall be granted where one Moaâ—s onely though divers parties all shall have but one Prohibition 94. pl. 163. If the Ecclesiastical Court proceed against a man without Citation where they have Jurisdiction no Prohibition lies the remedy is by way of Appeal 98. pl. 169. See pa. 92. pl. 152. 〈◊〉 Legatee may sue an executor in the Spâ—ritual Court for to assent to a Legacy Assets or not Assets may be tried by them and no Prohibition lies 96. pl. 167 A woman Libelled against another for calling of her lade upon which a Prohibition was granted but for Whore or Eawd no Prohibition lies quaere whether or not for Quan 99. pl. 1â—0 If a man be sued in the Court of Requests to account there a Prohibition lies See Title Sâ—â—â—â—stratica 1. 2. A man exhibited a 〈◊〉 in the Court of Requests for moneys due upon an account upon which a Prohibition was granted for that it is no 〈◊〉 than Debt upon an account further they referred the 〈…〉 the 〈◊〉 to â—â—â—ers which 〈…〉 of Prohibition 102. pl. â— 5 〈…〉 If a Ship â—e taken at Sea whether b Letters of Mart or by â—itacy if it be sold infra coâ—pus conitatus and the party Libels against the vendee in the Admiralâ—y a Prohibition lies 110. pl. 188. Upon deciding of Actions in an inferiour Court a Prohibition lies 141. pl. 214. Property In Trover and Conversion for a Hawk if he doth not say that it was reclaimed the Action will not lie for that it doth not appear he had a property in it and to say that he was possessed of it ut de bonis suis propriis will not
choose their Church-wardens and they chose two the Parson chose a third The Official of the Bishop gave Oath to one of them chosen by the Parish but refused to swear the other and would have sworn the party chosen by the Parson but the Parish was against it upon which the Parson Libelled in the Ecclesiastical Court And a Mandat was here praid That the Official swear the other who was chosen by the Parish and a Prohibition to stay the Suit in the Ecclesiastical Court. Upon the Mandat the Justices doubted and desired that Presidents and Records might be searched and at length upon many Motions Presidents and Records shewed a Mandat was granted But there being Suit in the Ecclesiastical Court bâ— the other whom the Parson chose a Prohibition was granted without any difficulty But at first the Counsel prayed a Prohibition for not swearing the other which the Court refused to grant because there was no proceeding in the Ecclesiastical Court and a Prohibition cannot be granted where there is no proceeding by way of Suit Vaughan against Vaughan in Action upon the Case upon Assumpsit 51. THe Defendant did promise that he would make such a Conveyance of certain Lands and pleaded That he had made it but did not shew the place where it was made And the Court was clear of Opinion that he need not for it shall be intended upon the Land And so in case of performance of Covenants it is not needful to shew the place where c. Norrice and Norrices Case 52. COpy-holder for life where the custome is That if the Tenant die seised that he shall pay a Heriot The Lord granted the Seigniory for 99 years if the Tenant should so long live And after that he made a Lease for 4000 years Tenant for Life is disseised or more properly ousted and died Here were two Questions 1. Whether there were any Heriot to be paid and admitting there were yet who should have it whether the Grantee for 99 years or he who had the 4000 years And the Court was clear of Opinion in both points without any argument 1. That a Heriot was to be paid not withstanding that the Tenant did not die seised because he had the estate in right and might have entred although he had not the possession And Justice Barckley compared it to the Case in C. 3. Rep. 35. a. in Butler and Bakers Case where a man hath one acre of Land holden in Capite and a hundred acres of Socage Land and afterwards he is disseised of the Capite Land and afterwards makes his will of all his Socage Land in that case he is a person having of Capite Land as the Statute speaks And yet that right of Capite Land shall make the devise void for the third part for notwithstanding the disseisin yet he is Tenant in Law And as to the second point the Court was clear of Opinion also That he in remainder or he that had the Estate for 4000 years for note the Action was brought by him in the Remainder for the Heriot should not have it And their reason was because the Tenant for life was not the Tenant of him who had the future interest of 4000 years but of him who had the interest for 99 years But they were not clear of opinion that the Grantee for 99 years should have the Heriot Justice Barckley was that the Grantee for 99 years should have it But Justice Iones there being then none in Court but they haesitavit And the reason of the doubt was because that eo instante that the Tenant died eodem instante the estate of the Grantee for 99 years determineth Justice Iones put this Case A Seigniory is granted for the life of the Tenant the remainder over in fee the Tenant dieth Who shall have the Ward Justice Barckley said he who is Grantee of the particular estate but Iones seemed to doubt it Vide 44 E. 3. 13. Lewes against Jones in a Writ of Error 53. JUdgment was given for Iones against Lewes in an Action brought in the Common Pleas And Lewes here brought a Writ of Error and assigned for Error That he was an infant at the time of the Action brought against him And that he appeared by Attorney whereas he ought to appear by Guardian or procheine amy The defendant pleaded in avoidance of this Writ of Error That there was no Warrant of Attorney The Plaintiff allegando shewed the Error before And the Defendant pleaded in nullo erratum est And the Judgment was reversed But the Opinion of the Court was That the better way had been for the Plaintiff to have demurred in Law for there being no warrant of Attorney there was no appearance at all and so are the Books 38 E. 3. and 14 E. 4. 54. In Vtburt and Parhams Case it was agreed That a man may be Non-suit without leave of the Court but he cannot discontinue his Suit without consent of the Court. Davis and Bellamies Case in Attaint 55. THe Defendant brought Attaint and the Verdict was affirmed and Costs prayed upon this Rule that where the Plaintiff shall have costs there the Defendant shall have costs But they were denied by the Court for that ought to be taken in the original Action and not in case of Attaint But upon the restituatur there costs shall be given but that is in the original Action 56. If two joynt-tenants be of a Rectory and one sueth for Tithes by himself only it is nâ— cause of Prohibition So if a Feme Covert sue solely upon a desamation a Prohibition shall not be granted 57. The Sheriff of a County made a Warrant Balâ—ivis suis to arrest the body of such a man and the Bayliffs of the Liberâ—y return a Rescous And Exception was taken to it because that the Warrant was Ballivis suis and the Return was made by those who were not his Bayliffs and it was adjudged for the Liberty might be within his Bayliwick and so are all the Presidents And there was another Exception because the place of the Rescous was not shewed and for that the Book of 10 E. 4. was cited for there the Rescous was adtunc ibidem and did not shew the place To that it was answered by the Court and agreed that adtunc ibidem is altogether incertain if the place be not shewed but in the principal Case the place was shewed at the first and always after that tunc ibidem only without naming of the place and adjudgâ—d good For that tunc ibidem throughout the Declaration hath reference to the place first shewed and it was adjudged good 58. Outlawry was reversed for this Error because that the Exigent was Secund exactus ad Com' meum ibidem c. 59. A Hundred may prescribe in Non decimando and it is good for it is the custome of the County which is the best Law which ever was But a Parish or a particular Town cannot prescribe in Non decimando And
therefore iâ— the King be deceived either in point of profit or in point of Title his Grant is void 9 H. 6. Where he is not deceived in point of profit he shall not avoid the Grant 26 H. 8. The second reason That a Deed ought to be construed Vt res magis valeat quam pereat 34 H. 6. A man having a Reversion deviseth his land in Manibus thereby the Reversion passeth 9 E 4. 42. Release of all Actions against Prior and Covent shall be construed and intended all Actions against the Prior only for an Action cannot be brought against the Covent Farther by this construction you would avoid this deed and by the Rule of Law the deed and words of every man shall be taken very strong against himself ut res magis valeat as is said before And it is against reason to conceive that it was the meaning of the parties that nothing should pass A third reason was because the grant was a distinct clause of it self And the words which were objected at the Bar to be restrictive were in another distinct clause and therefore shall not restrain that which was before for words restrictive ought to be continued in one and the same sentence Wherefore they having granted all their Tithes in Chesterton by one clause the false recital afterwards in another clause shall not make the grant void See 3 4 Eliz. Dyer in Wast 31 Eliz. the Lord Wenworths Case in the Exchequer upon this Rule of distinct clauses And Atkins and Longs case in the Common Pleas upon which cases Justice Iones did rely The fourth reason was That construction ought to be made upon the whole Deed And it appeareth by the context of the Deed That it was the meaning of the parties to grant the Tithes by the Deed. Further the Exception of the four things sheweth That it was the meaning of the parties to grant all things not excepted as the Tithes in this Case For exceptio firmat Regulam And to what purpose should the Exception be if they did not intend to pass all other things not excepted See 4 Car. Hâ—skins and Trâ—ncars Case Sir Robert Napwiths Case 21 Iac. cited by the chief Jâ—â—tice to that purpose Wherefore it was agreed by the whole Court that Judgment should be given for the Defendant And the Opinion of the Court was clear also That although some of the Tithes had been in the Tenure of Margaret Petâ—e that yet the grant was good And that was after Argument upon the Demurrer to avoid all scruples to be after made by Counsel because it was conceived That some of the Tithes were in her Tenure Crisp against Prat in Ejectione firme 67. THe Case upon the four Statutes of Bankrupts viz. 34 H. 8. 13 Eliz. 1 Iac. and 21 Iac. was thus Ralph Brisco 9 Iac. purchased Copyhold to him and his Son for their lives the Remainder to the Wife in Fee 11 Iac. he became an Inholder and about twelve years after a Commission of Bankrupt is obtained against him And thereupon the Copyhold-land is sold by the Commissioners to the Defendant Ralph Brisco dieth and his Son Iohn Brisco entred and made the Lease to the Plaintiff The Defendant entred upon him and he brought an Ejectione firme And Judgment was given upon solemn argument by the Justices for the Plaintiff The first point was Whether an Inholder be a Bankrupt within these Statutes And it was resolved by all the Justices viz. Iones Crook Barckley and Bramstone chief Justice that an Inholder quatenus an Inholder is not within these Statutes Justice Barckley and Justice Iones one grounded upon the special Verdict the other upon the Statutes did conceive That an Inholder in some cases might be within these Statutes Justice Barckley did conceive upon this special Verdict that this Inholder was within them because it is â—ound That he got his living by buying and selling and using the Trade of an Inholder And he conceived upon these words Buying and selling in the verdict and getting his living thereby although that the Jury have also found him an Inholder that the same is within the Law And he agreed That he who liveth by buying or selling and not by both is not within the Law but in our case the Jury have found both And it hath been adjudged That he who buys and sells cattle and stocks his ground with them that he may be a Bankrupt within those Statutes I agree that a Scrivener was not within 13 Eliz. for he doth not live by buying and selling but by making use of the monies of other men but now he is within 21 Iac. But in our case the Inholder buys his grass hay and grains and provision also for his Guests and by selling of them he lives But he agreed That if the Jury had found that he was an Inholder only and not that he did get his living by buying and selling that in that case he was out of the Law And for these reasons he did conceive That this Inholder as by the special Verdict is found was within the Statutes of 13 Eliz. and 21 Iacobi Justice Iones An Inholder may be or not be within these Laws upon this difference That Inholder who gets his living meerly by buying and selling as many of the Inholders here in London do they are within these Statutes But those who have Lands of their own and have hay and grain and all their provisions of their own as many have in the Country those are not within the Statutes Farther he said That buying and selling doth not make men within these Statutes for then all men should be within the Statutes but they ought to be meant of them who gain the greatest part of their living thereby and live chiefly or absolutely thereby But Bramston chief Justice and Justice Crook were clear of Opinion that an Inholder could not be a Bankrupt neither by the Statutes nor according as it is found by the special Verdict And their reason was because that an Inholder doth not live by buying and selling for he doth not sell any thing but utter it He which sells any thing doth it by way of contract but an Inholder doth not contract with his Guests but provides for them and cannot take unreasonable rates as he who sells may and if he doth he may be Indicted of Extortion which the seller cannot Wherefore they concluded that an Inholder is not within the Statute of 13 Eliz. 1 Iac. Justice Crook remembred these Cases Webb an Inholder of Vxbridge brewed in his house and sold his Beer to his Guests And it was adjudged in the Exchequer that it was not within the Statute of Brewers And Bedells Case who being a Farmer bought and sold cattle and adjudged that he was not a Bankrupt within these Statutes And he put thâ—se cases upon this reason That where the Statutes said Get their living by buying and selling that it ought to bâ—â—or the greater part that they gain
the Actions brought by the other Creditors But Justice Bramston contrà That the damages were well assessed because that the Actions brought by the Creditors were added for aggravation only and the cause of the Action was the Arrest and Imprisonment like the case where a man speaks words which are in part actionable and others only put in for aggravation and damages is assessed for the whole it is good There was a third Error assigned That the Venire facias was de Warda omnium Sanctorum de Bristow without shewing in what Parish Childe against Greenhil 77. CHilde brought Trespass against Greenhill for Fishing in seperali piscaria of the Plaintiff and declared that the Defendant pisces ipsius cepit c. And Verdict found for the Plaintiff And it was moved by Saint-Iohn in Arrest of Judgement because the Plaintiff declared of taking of pisces suos whereas the Plaintiff they being ferae naturae hath not property in them Register 94 95. and F. N. B. and Book Entries 666. No count that the Defendant cepit pisces ipsiuâ— but ad valentiam c. without ipsius So Fines Case in Dyer 7 H. 6. 36. 10 H. 7. 6. 12 H. 8. 10. by Brudnell 13 E. 4. 24. 7 Rep. case of Swannes And the Book of 22 H. 6. 59. is over-ruled by the case of Swannes 34 H. 6. 24. And the same is matter of substance and therefore not helped after Verdict An Action of Trover and Conversion against husband and wife quia converterunt is not good and it is not helped after Verdict because it is matter of substance Rolls for the Defendant I agree that lepores suos or pisces suos without any more is not good But where he brings an Action of Trespass for taking them in his Soil there it is good because it is within his Soil So in our case for taking pisces suos in his several Piscary and with this difference agree 22 H. 6. 59. 43 E. 3. 24. so Regist. 93 102. 23 H. 6. tit Tresp 59. 14 H. 8. 1. and the Book of 43 E. 3. saith That in Trespass the Writ shall not say Damam suam if he do not say that it was taken in his Park or Warren or saith damam domitam or as the Book is in 22 H. 6. in my Soil or Land and by Newton he shall say there damas suis. And admit that it was not good yet I hold that it is helped after Verdict because it is not matter of Substance for whether they be pisces suos or not the Plaintiff shall recover damages Justice Barckly It is true that in a general sense they cannot be said pisces ipsius but in a particular sense they may and a man may have a special or qualified property in things which are ferae naturae three ways ratione infirmitatis ratione loci ratione privilegii and in our case the Plaintiff â—ath them by reason of Priviledge And it was agreed by the whole Court That Judgment should be affirmed upon the very difference taken by Rolls that where a man brings Trespass for taking pisces suos or lepores suos c. and the like that the Action will not lie But if he bring Trespass for fishing in his several Piscary as in our Case or for breaking of his Close and taking lepores suos c. there it will lie Pitfield against Pearce 78. IN an Ejectione firme the Case was thus Thomas Pearce the Father was seised of Lands in Fee and by Deed in consideration of Marriage did give and grant this Land to Iohn Pearce the now Defendant his second Son and to his Heirs after his death and no Livery was made Thomas Pearce died the Eldest Son entred and made a Lease to the Plaintiff who entred and upon Ejectment by the Defendant brought an Ejectione firme Twisden The only question is whether any estate passeth to the Son by the Deed and it was said there did and that by way of Covenant And it was agreed That in this Case if Livery had been made it had been void because that a Freehold cannot begin at a day to come But I may Covenant to stand seised to the use of my Son after my death So a man may surrender a Copyhold to take effect after a day to come Com. 301. So a man may bargain and sell at a day to come 1 Mar. Dyer 96. Chudleighs Case 129. 20 H. 6. 10. A use is but a trust betwixt the parties and 7 Rep. 400. There need not express words of Covenant to stand seised to an use 25 Eliz. Blithman and Blithmans case 8 Rep. 94. Besides these words dedi concessi are general words and therefore may comprehend Covenant and words shall be construed that the Deed may stand if it may be 8 Ass. 34. 7 E. 3. 9. But I agree that if the intent appeareth that it shall pass by transmutation of possession that there it shall be so taken but here his intent doth not appear to be so for if there should be Livery then the son should take nothing for the reason before given which is against his meaning Mich. 21 Iac. Rot. 2220. Buckler and Simons Case Dyer 202. Vinions case The cases cited before are in the future tense but the words are here I give c. 36 Eliz. Callard and Callards Case Stand forth Eustace reserving an estate to my self and my wife I do give thee my Land and the better Opinion was That in that case it did amount to a Livery being upon the Land for his intent is apparent Mich. 41 42 Eliz. Trelfe and Popwells Case adjudged in such case That an use shall be raised For which it was concluded that in this case there is a good estate raised to Iohn Pearce by way of Covenant Rolls I conceive that not estate is raised to Iohn Pearce by this conveyance It was objected That it shall inure by way of Covenant to raise an use I agree that if the meaning of the party may appear that he intended to pass his estate by way of raising of an use otherwise not And here is no such appearance Foxes Case in 8 Rep. is a stronger case and here it doth not appear that he meant to pass it by way of use But by the word give he intended transmutation of possession 8 Rep. Bedells case Mich. 18. Car. Rot. 2220. in the Common Pleas it was adjudged That a gift of a Remainder after the death of the grantor was void wherefore he concluded for the Plaintiff and so Judgment was given by the whole Court And Justice Iones said When a man makes a doubtful Conveyance it shall be intended a Conveyance at the Common Law And it shall not be intended that the Father would make him Tenant for life only punishable of wast Mich. 15º Car ' in the Kings Bench. 79. IT was moved for a Prohibition to the Counsel of the Marches and the Case was such A man seised of Lands in Fee
it turns the Avowry into a Justification in our Case so as you shall not make us Trespassers but that we may well justifie to save our damages Crawley Justice that the Avowry is turned into a Justification and that there is sufficient substance in the Plea to answer the unjust taking the distress Justice Reeve that it is good by way of Avowry for the distress being lawfully taken at the time it shall not take away his avwry therefore he shall have Retorn for that was as a gage for the rent and therefore differs from the other Cases Justice Foster put this Case at the Common Law Distress was taken and before avowry Tenant for life died Whether he shall avow or justifie But all agreed that at the least the Avowry is turned into a Justification but it was adjourned 179. The Court demanded of the Protonotharies Whether a man might make a new assignment to a special Bar and they said no but to a common Bar only viz. that the Trespass if any were was in Bl. Acre there ought to be a new assignment by the Plaintiff but Reeve and Crawley Justices the other being absent held clearly that the Plaintiff might make a new assignment to a special Bar and further they said that the Plaintiff if he would might trise the Desendant upon his Plea but we will not suffer him to do so because that his Plea is meerly to make the Plaintiff to shew the place certain in his Replication in which the Trespass was done 180. The Disseisee levieth a Fine by Reeve and Crawley Justices it shall not give right to the Disseisor because that this Fine shall enure only by way of Estoppel and Estoppels bind only privies to them and not a stranger and therefore the Disseisor here shall not take benefit of it and therefore they did conceive the 2 Rep. 56. a. to be no Law Vid. 3 Rep. 90. a 6 Rep. 70. a. 181. Serjeant Callis prayed a Prohibition to the Court of Requests for cause of priority of Suit but by Foster and Crawley Justices the other being absent priority of Suit was nothing the Bill being exhibited there before Judgment given in this Court 182. The Case of White and Grubbe before being moved again it was said in this case by Reeve and Foster Justices that where a man is indebted unto another for divers wares and the debt is superannuated according to the Statute of 21 Iac. cap. 16. and afterwards they account together and the party found to be indebted unto the other party in so much mony for such wares in that Case although that the party were without remedy before yet now he may have debt upon accompt because that now he is not bound to shew the particulars but it is sufficient to say that the Defendant was indebted to the Plaintiff upon accompt pro diversis mercimoniis c. 183. A Prohibition was prayed unto the Council of the Marches of Wales and the Case was thus A man being posfessed of certain goods devised them by his will unto his wife for her life and after her decease to I. S. and died I. S. in the life of the wife did commence Suit in the Court of Equity there to secure his Interest in Remainder and thereupon this Prohibition was prayed And the Justices viz. Banks Chief Justice Crawley Foster Reeve being absent upon consideration of the point before them did grant a Prohibition and the reason was because the devise in the remainder of goods was void and therefore no remedy in equity for Aequitas sequitu◠legem And the Chief Justice took the difference as is in 37 H. 6. 30. Br. Devise 13. and Com. Welkden Elkingtons Case betwixt the devise of the use and occupation of goods and the devise of goods themselves For where the goods themselves are devised there can be no Remainder over otherwise where the use or occupation only is devised It is true that heir looms shall descend but that is by custome and continuance of them and also it is true that the devise of the use and occupation of Land is a devise of the land it self but not so in case of goods for one may have the occupation of the goods and another the Interest and so it is where a man pawns goods and the like For which cause the Court all agreed that a Prohibition should be awarded Trin. 17º Car. in the Kings Bench. 184. A Man was sued in London according to the custom there for calling a woman Whore upon which a Habeas corpus was brought in this Court and notwithstanding Oxfords case in the 4 Rep. 18. a. which is against it a Procedendo was granted and it was said by Serjeant Pheasant who was for the Procedendo and so agreed by Bramston Chief Justice and Justice Malle◠That of late times there have been many Procedendo's granted in the like case in this Court 185. An Orphan of London did exhibite a Bill in the Court of Requests against another for discovery of part of his estate And Serjeant Pheasant of Counsel with the Defendant came into this Court and Prayed a Prohibition upon the custom of London That Orphans ought to sue in the Court of Orphans in London but the whole Court which were then present viz. Chief Justice Bramston Heath and Mallet Justices were against it because that although the Orphan had the Priviledge to sue there yet if he conceive it more secure and better for him to sue in the Court of Requests then he may waive his priviledge of suing in the Court of Orphans and sue in the Court of Requests for quilibet potest renunciare juri pro se intraducto c. and Heath said that he always conceived the Law against the Case of Orphans 5 Rep. 73. b. But which is stronger in this Case the Court of Orphans did consent to the Suit in the Court of Requests and therefore there is no reason that the Defendant should compel the Infant to sue there wherefore they would not grant a Prohibition but gave day until Mich. Term to the Defendants Counsel to speak further to the matter if they could Trin. 17º Car. in the Common Pleas. Dewel against Mason 186. IN an Action upon the Case upon an Award the case was this The Award was that the Defendant should pay to the Plaintiff eight pound or three pound and Costs of suit in an Action of Trespass betwixt the Plaintiff and Defendant as appears by a note under the Plaintiffs Attorneys hand ad libitum defendentis c. And the Plaintiff doth not aver that a note was delivered by the Attorney of the Plaintiff to the Defendant and the Defendant pleaded Non assumpsit and it was found for the Plaintiff and it was moved in arrest of Judgment for the reason given before Rolls contrary that there needs no averment and he said it was Wilmots case adjudged in this Court Hill 15 Car. where the Case was that the Defendant should
the matter and the form but he objected that where it is said that he did drive quoddam gestatorium that gestatorium is a word incertain and that therefore the Information should be insufficient but he agreed that notwithstanding that that it was good by reason of the Auglicè for that reduceth it to certainty and he cited the Case betwixt Sprigge and Rawlinson Pâ—seh 15 Car. in this Court where the Case was that a man brought an Ejectione firme de uno repositorio which word was put for a Warehouse and resolved that it was naught for the incertainty but the Chief Justice here said that it had been good if it had been explained by an Anglicè and so he said it was resolved in that Case and therefore he agreed that the Information here was good notwithstanding that exception by reason of the Anglicè this offence is an offence against the Commonwealth and such an offence for which a man may be indicted for it is â—aid in the Information to be ad nocumentum Ligeorum Domini Regis wherefore he agreed that the Judgment should be a fine with Capiatur and he said that it cannot be part of the Judgment in this Case that the Defendant should repair it because it is said in the Information expresly thaâ— the Parishioners ought to repair it and the Chief Justice said and so Justice Heath which I before omitted that the Township cannot have their Actions for so there should be multiplicity of Actions which the Law will not suffer but he conceived that if any man had a special and peculiar damage then he might have his Action otherwise not as if a man were bound by prescription or tenure to repair that place called Lobbe-Lane or any part of it then he might have his action upon the Case against the defendant otherwise not he agreed that the fine should be secundum quantitatem delicti but yet not too high because the other Parishes may have their Information in like manner against the Defendant but he agreed to adjorn the setting of the fine Southward against Millard 209. IN an Ejectione firme the Defendant pleaded Not Guilty Upon which a special Verdict was found Nicholls possessed of a Term for 1000 years devised the same to E. his daughter for life the remainder to Iohn Holloway and made Lowe the Husband of the Daughter his Executor and died Iohn Holloway devised his interest to Henry and George Holloway and made Oliver and others his Executors and died afterwards Lowe spake these words If E. my wife were dead my estate in the premisses were ended and then it remains to the Holloways E. died the Executors of Iohn Holloway made the Lease to the Plaintiff and Lowe made the Lease to the Defendant who entred upon the Plaintiff who brought Ejectione firme and whether upon the whole matter the Defendant were guilty or not of the trespass and ejectment supposed the Jury referred to the Court and the points upon the Case are two First whether the words spoken by Loâ—e the Executor be a sufficient assent to the devise or not admitting that it is then the Second Point is Whether thâ— assenâ— came in due time or not as to the interest of Iohn Holloway in the remainder because he died before the words spoken which should make the assent and as to that the pâ—int is no other but that the Legatee dieth before assent to the Legacie whether assent afterwards came too late or that the Legacie shall be thereby lost or not that is the Question and by Justice Mallet it is a good assent and that in due time And here some things ought to be cleared in the Case First that the devise to Iohn Holloway in the Remainder is good by way of executory devise Secondly that the devise by Iohn Holloway to Henry and George is a void devise because but a possibility Thirdly that the assent to the first devise is an assent also to him in the remainder And lastly that if an Executor enter generally he is in as Executor and not as devisee all which are resolved in Lampetts and in Matthew Mannings Case Now these Cases being admitted the Question is Whether that Lowe the Executor here hath made a sufficient Declaration to take the Term as Devisee in the right of his wife or not for he hath his Election to take it as executor or in the right of his wife and as I conceive he hath made a good Election to have it as Legatee in the right of his wife The last words viz. That then it remains to the Holloways which is impossible by Law to be because that the devise to them was void he did not waigh because but additional and the first words of themselves are sufficient to make an assent it is not a transferring of an Interest but an assent only to it which was given by the first Testator and after assent the devisee is in by the first Testator and that being but a perfecting Act like an Attornment and admittance of a copy-holder the Law always favours it for the Law delights in perfection and therefore an assent by one Executor shall binde all so an assent by one Infant-Executor above 14 years shall binde the other so an assent to the particular Tenant is good to him in the Remainder Admittance of a Copyholder for life is admittance of him in the remainder which Cases shew that an assent being but a perfecting act the Law shall always make a large construction of it and he said that Mannings case in the 8 Rep. is the very Case with our Case as it appeareth in the pleading of it in the new Book of Entries 149. b. and also in Mannings Case aforesaid but that Case was not resolved upon that point for the devise there was paying so much and the devisee being also executor payed the money and therefore it was ruled to be a sufficient assent to the Legacie and therefore our case may be doubted notwithstanding that case and for my part I conceive it a good assent to the Legacie in our Case And for the second point I hold that the assent comes in due time to settle the Remainder although that Iohn Holloway were dead before for otherwise by this common casualty of death which may happen so suddenly that an assent cannot be had before or by the wilful obstinacie of the Executor that he will not assent Legatees should be defeated of their Legacies which would be a great inconvenience Besides I hold that the devise by Iohn Holloway was void he having but a possibility at the time of the devise and therefore that it remain to his Executors and by consequence that the Ejectione firme brought by their Lessee will lie Justice Heath acc for the Plaintiff Three things are here considerable First whether there need any assent at all of the Executor to a Legacie Secondly whether here be an assent or not Thirdly whether this assent come in due
of peace are coram non judice 27. pl. 63. Presentments taken in an Hundred-Court are coram non judice 75 pl. 115. Corporation Churchwardens in London are a Corporation and may purchase Lands to the benefit of the Church but Churchwardens in the Country though a Corporation are capable onely to purchase Goods to the benefit of the Church 67. pl. 104. Covenant A man makes a Lease and that the Lessee shall have conveniens lignâ—m non succidend ' vendeâ—d ' arbores the Lessee cuts down Trees the Lessor may bring an Action of Covenant 9. pl. 22. Lessee of a house Covenants to repair it with convenient necessary and teneatable Râ—parations in Covenant the Lesser alleadgeth a breach in not repairing for want of Tyles and daubing with Morter and doth not shew that it was not tenentable therefore nought 17. pl. 39. A man by Deed conveys Land to his second Son by these words I do give and grant this Land to I. S. my second Son and his Heirs after my death and no livery made and dyes the Estate passeth not by Covenant and therefore the Son taketh nothing 50. pl. 78. Covenant with two severally and good 103. pl. 176. Counsel Counsellors Counsel saith to his Client that such a contract is Simony and he saith that Simony or not Simony he will do it and thereupon the Counseller maketh this Simoniacal contract this is no offence in him 83. pl 136. Custom and Perscription By the Custom of London a man may transfer over his Apprentices to another 3. pl. 6. By the Custom of London the Mayor may restrain any man from setting up his Trade within the City in a place unapt for it and for his disobedience may imprison him 15. pl. 34. Custom to cut Grass in the soyl of another to strow the Church good Custom 16. pl. 38. Custom or Prescription in non decinando by a Hundred is good but not by a Parish or particular Town 25. pl. 59. A Law or Ordinance where the Custom will warrant it that he that puts in his beasts in the Common beyond such a limit or bound shall pay 3 s. 6 d. is a good Law 28. pl. 64. Custom that if a man have see in Land that it shall descend to the youngest Son and if Tail that then to the Heir at Common Law is a good Custom 54. pl 82. Prescription to have Common for all beasts commonable is naught but for all beasts commonable levant and couchant is good 83 pl. 137. A Hille hath a Chappel and buries at the Mother-Church and for this have time cut of mind repaired parcel of the wall of the Church it is good for to excuse them from repairing the Church Inhabitants of a place prescribe to repair the Chappel of ease and in regard of this that they have been time out of minde freed from all reparations of the Mother-Church good prescription 91. pl. 151. Hille hath a Chappel of ease and a Custom that those with in such a precinct ought to find a Rope for the third Bell and repair part of the wall of the Mother-Church in consideration of which they have been freed of payment of any Tythes to the Mother-Church whether this be a good Custom or not quaere ubi supra Damage Cleer WHat Damage Cleer is and the prejudice that a man may have in this that he cannot have his Judgement before that he hath payed the Damage cleer 76. pl. 226. Damages and Cost Heir apparent ravished of full age his Fatâ—er shall not recover Damages 5 pl. 8. In Attaint the Verdict was affirmed and the Defendant in the Attaint prayed Costs but was denyed by the Court. 24 pl. 55. A man distraiâ—s for a Penalty asseâ—â—ed by Custom and distrainable by Custom and upon a Beplevin brought Judgement was given for the Avowant and Damage assessed and whether Damage ought to have been given or not quaere 38. pl. 64. Where Damages entire shall be nought and where not 47. pl. 76. 96. pl 166. 47. pl. 76. Where Costs and Damages shall be recovered upon a Penal Law where not 56. pl. 88. 61 pl. 95. Prisoner removing himself by Habeas corpus shall pay the costs of the removal otherwise where he is removed by the Plaintâ—ff 89. pl. 143. In an Accompt a man shall recover Damages upon the second Judgement 99. pl. 171. Debt A Sheriff levies money upon a Fieri fa cias Debt will lie against him and if he dyes against Executors 13. pl 33. In Debt upon an Accompt it sufficeth to say that the Defendant was indebted to the Plaintiff upon an Accompt pro diversis mercimoniâ—â— without reciting the particulars 102. pl. 175. 105. pl. 182. Defamation If a man Libel in Court Christian for calling of him Drunkard Prohibition lies See Tit. Prohibition 1. D. Libelled in the Ecclesiastical Court for these words She is a beaâ—â—ly quâ—an a 〈◊〉 qâ—ean a copper-â—os'd qâ—ean and 〈…〉 and hath 〈◊〉 500 l. and 〈…〉 with whorâ—s and Regâ—â—s upon which a Prohibition was prayed and granted 89. pl. 144. A woman Libelled in the Spiritual Court against one for calling her Jade upon which a Prohibition was prayed and granted but if it be Libelled for calling one whore or bawd no Prohibition lies 99. pl. 170. By the Custom of London an Action lies for calling a woman Whore and ruled a good Custom 107. pl. 184. Default Appearance Administrator of one Outlawed for murder brought Error to reverse the Outlawry and was allowed to appear by Attorney 113. pl. 190. Demands Demandable Grantee of a Rent to be paid at the house and if the Rent be behinde and lawfully demanded at the house that then it shall be lawful for the Grantee to distrain whether a distress upon the Land be a sufficient demand as this Case is or not quaere 147. pl. 218. Denizen Alien Merchant goes beyond Sea and marries an Alien who have Issue the Issue is a Denizen 91. pl. 150. Deprivation Where a Church shall be void without sentence of Deprivation See Title Void Voidable Devises Devise of Goods to one for life the Remainder to another the Remainder is void 106. pl. 183. Divorce A man divorced causâ adulterii is within the Proviso of the Statute of 1 of King Iames ca. 11. but not a man divorced causâ— saevitiae 101. pl. 175. Discontinuance A man may Nonsuit without the consent of the Court but not Discontinue without the Courts consent 24. pl. 54. Dispensations Whether the King by a Non obstante in his Charter of Pardon may dispense with the Statute of 13 R. 2. ca. 1. or noâ— quaere If you peruse this Case you shall finde much excellent learning upon that point in what Case the King may dispense with Statutes in what not 213. pl. 250. Distress Horses traced together are but one Distress Fetters upon a Horse-leg may be distrained with the Horse 91. pl. 149. Distribution Whether the Ordinary after Debts and Legacies