Plaintiff had before brought a Quare impedit against the Defendants for the same Church which Writ was returned and that they did appear to defend it First we must know that this Assise shall be taken only in the Common Bench vide Mag Char cap 13. Assize of Darrein presentment abate by a Quare â—â—pedit then the Arch-bishop making default and the Assise being awarded against him by default if the other Defendants plead to the Assise yet the Assise shall not be presented because an Assise shall not be taken by parcels and therfore a Resummons shall be awarded against the Arch-bishop and the same for the Iury. But the other Defendants pleading their Plea to the Writ the Court was of opinion that it was a good Plea in abatement of the Writ for the Quare impedit is a Writ of a higher nature vide Regist fol 30. That if he against whom an Assise of Darrein presentment is brought brings a Quare impedit the Darrein presentment shall abate And the Statute of West 2. cap 5. saies it may be in the Election of one whether he will have an Assise of Darrein presentment or Quare impedit ergo he cannot have them both And if an Assise of Darrein presentment be brought and after that a Quare impedit for one avoidance the Assise shall abate for the Quare impedit is higher in his nature that is for the right and for the possession And Iustice Warburton vouched 10 Ed 3 Statham in Darrein presentment 3. If a man shall have a Quare impedit and also an Assise of Darrein presentment of one and the same Advowson pending at one and the same time the Darrein presentment shall abate and the Quare impedit shall stand because that it is of an higher nature By Hank and Hill it was urged that the Quare impedit was not depending untill he had appeared and it is not pleaded that he did appear but vide 2 Ed 4. fol that it is depending when it is returned And in a Quare impedit by the Earl of Bedford against the Bishop of Exeter Bedford versus the Bishop of Exeter it was adjudged Pasch 15 Jac. that he could not have two Quare impedits of one Church and for one avoidance And in this Case the whole Court agreed that the plea was good in abatement of the Writ and awarded that the Assise should abate Mich. 14 Jac. Rot. 3297. Shaw versus Taylor Wigorn. Replevin Where the Lord shal lose his Heriot when the Tenant have not any Beasts BRidget Shaw brought a Replevin against George Taylor for the taking of an Horse at Northfield in a place called Little falling the Defendant makes Cognizance as Bayliff to Sir Thomas Gervas because that one Richard Shaw was seised of an House and divers Lands of which the place where c. was parcell in his Demesn as of Fee and them held of the said Sir Thomas Gervas as of his Mannor of Northfield by Fealty and Rent of twenty pounds and rendring and paying after of every Tenant dying therof seised one Heriot and alledged Seisin and that he died seised And that for one Heriot so due and not delivered he distrained in the place in which c. as within the Fee The Plaintiff plead in Bar to the Avowry and takes the whole Tenure by protestation and for Plea saies that the said Richard Shaw at the time of his death had no Beasts wherof a Heriot might or could be rendred upon which the Defendant demurrs And upon the matter it seemed to the Court that if he had not any Beasts than the Lord must lose it for it is a casuall thing if he have it unlesse the Custom or Tenure be to have the best Beast or such a summ And if he had conveyed it away and so prevented him by any fraud then the Statute of 13 Eliz. had provided remedy but where there is nothing of any such thing which may be rendred at the time of the death there the King must lose his right And it was resolved by the Court that the Cognizance was not good for it ought to be certain i. e. for the best or two best Beasts and not generally for one Heroit and not shewing what thing in certain vide 3 Eliz Dyer 199. A Heriot is Quaedam prestatio c. and see there the Plea that there was no Beast at the time of his death And the opinion of the Court was also that the Bar to the Avowry was not good because the Issue is tendred to a thing not alledged for in the Avowry he made not mention of any beast but generally of one Heriot which is not certain And therfore it was awarded that the Plaintiff should recover and should have a return c. and Damages Pasch 14 Jac. Rot. 907. Norris versus Stapes Goldsborough Berk. RObert Norris and Thomas Trussells Wardenâ— and the Society of Weavers in the Burrough of Newbury Deâ— 1. By lawes in the County of Berkshire brought an Action of Debt for five pounds against John Stapes and Count that Queen Eliz. by her Letters Patents 14. of Octob An 44. at the request of the Inhabitants there using the Art of Weaving and to the intent that Corruption therin might be taken away and avoided c. did grant to all Weavers within the said Town to be a Body Politick by the name of the Wardens and Society c as before and to have perpetuall succession power to purchase to plead and to be impleaded And also power to make Laws and Ordinances agreeable to reason and not in any wise contrary and repugnant to the Laws and Statutes of the Realm for the well Government of the Society Apprentices and Servants and all using the Trade of weaving or selling of any thing therto belonging within the same Burrough and power to inflict punishment by Imprisonment Fine or Amercement upon the Offenders And granted further that the said Wardens and Society shall have the survey of those Lawes and the benefit of the Forfeitures And that no other person born within or without the said Burrough shal exercise the Art of weaving within the said Burrough if he shall not be admitted therto by the Wardens and Society And they recite the Act of 19 H 7. cap 7. of not putting of any Law or Ordinance in execution before it shall be allowed by the Lord Chancellor Treasurer and two chief Iustices or three of them or before both the Iustices of Assise in their Circuits upon pain of forfeiting forty pounds And shew that one Cuthbert Goodwin and John Hame Wardens of the said Society with the greater part of the said Society 1. Maij 45 Eliz. at the Guildhall within the said Burrough made divers Lawes and Ordinances for the Government of Weavers and that the 18 Novemb. 1 Jac. the said Orders were confirmed by the Lord Chancellor Lord Treasurer and Lord Anderson one of the chief Iustices among which one
before the return because it is another Action and the Sheriff might have paid it to the Plaintiff though he return that he had the money ready to be delivered to him for if he had after that paid it to the Plaintiff that was good satisfaction and he might as well pay it after he had levied it and before the return as he might pay it after the return and then Nil debet is a good Plea But it was objected that by the return 15 Mich. that he had the money ready and that after the acquittance his return should conclude him And it was said that it would not for it is in another Action and stands therwith 22 E 4.38 One vouched as Heir may be bound to Warranty by his Father and if he bring an Assise De morte Antecestoris and the Tenant plead Bastardy it is no Estoppell that the Defendant vouched him as Heir before The Acquittance or Release is good before the return and not like unto Hoes Case of Bail Coke lib 5.71 or 5 Eliz Dyer 217. Release of Actions and Suits will not release a Covenant before it be broken Object That the Acquittance or Release is pleaded only by recitall Res To this it was answered that he had paid the two hundred and fifty pound seventeen shillings eight peace which the Plaintiff had accepted and the Plaintiff by Demurrer had confessed the Deed and all that is contained therin then it appears that he is satisfied and that the release in matter as it is recited shall be an Estoppell vide 46 Eliz. 13. But it seemed that it is no Estoppell by the reciting in the Release that which is in possession but that afterward he might well say that he was not in possession at the time of the Release and all the Court agreed that the Acquittance or Release and receit of the money is a good Bar as to two hundred and fifteen pounds seventeen shillings eight pence and so it was adjudged But whether an Action of Debt lies against the Sheriff upon this return is questionable yet that it is not any Contract Account or Loane upon which three properly an Action of Debt lies as it is said M. 18. E. 4.23 and 41. E. 3.10 and 42 E. 3.9 When money is delivered to be delivered over that no Debt lies if it be not delivered over but Account vide 34 H. 6. 36. a. 9 E 4.50 And the Court inclined that in this Case Debt lies for it is a generall Contract In Dowses Case the Sheriff levy part and do not return it but the party pay it Debt lies against the Sheriff And if money be delivered to buy Land if he buy it not Debt lies or Account Mich. 15 Jac. Rot. 636. Stone versus Roberts STone brought an Action upon the Case against Roberts for these words The Plaintiff is a Witty and an Inchaunter Case and hath bewitched the Children of one Strong And Iudgment for the Plaintiff Words For though Witch is a word of malice and familiarly used to old poor women and therfore no Action lies yet here it is coupled with a Deed by which the Plaintiff is drawn in danger of his life by the Statute of 1 Jac. Hil. 15 Jac. Rot. 710. Crawley versus Kingswell RIchard Crawley Plaintiff in Roplevin against Richard Kingswell Replevin for taking of one Cow at C. the Defendant makes Conuzance for ten pounds Rent-service come Bayliff to his Father the Plaintiff confesse the Tenure but alledge that at our Lady day which was one day of payment he was upon parcell of the Land Rent tendered at the day and there was ready and offered to pay it and remained there till after the setting of the Sun The Defendant replyed and protestando that he made no such tender for plea saith that after that and before the Distresse viz. such a day he at this Close demanded the Rent and none came there to tender or pay it for which he did distrain and praies a return c. and avers that the Plaintiff nor any other neither at the time of the distresse nor at any time after offered to pay the Rent wherupon the Plaintiff demurred and it being argued by Hendon and John Moore it was adjudged by the whole Court that the Defendant shall have a return And a diversity was taken between this and Homage where one makes a tender to the party and he refuse there he cannot distrain because it is a personall thing which cannot be performed as payment of a Rent may by another hand vide Litt. fol 35.21 E 4.17.7 E 4.4.20 H. 6.13 Also it was agreed that the tender there by the Tenant at the day is not materiall but if he had tendred it when the Distresse was taken the taking should be tortious 30 Ass 38. vide 22 H 6.36 37.21 E 4. b. 45 E. 3.9 vide Litt. 7. fol 28. Demand necessary only for a Penalty 26 Eliz. Certain Cases vouched in an Action for words GIttings Plaintiff in the Exchequer against Redserve Gittings is a cousening Knave and so I have proved him before my Lord Mayor for selling me a Saphire for a Diamond the Action does not lye And by Manwood if A. saies of B. Thou art a cousening Knave and hast cousened me of five hundred pounds no Action lies which the Court agreed Banco Regis 30 Eliz. George versus Whitlock HE is a cousening Knave and consened a poor man of a hundred pounds and all the Georges are cousening Knaves no action lies Hil. 30 Eliz B. R. Walcot Plaintiff versus Hind HE is a cousening Knave and hath cousened me of forty pounds adjudged no action lies And upon Error brought in the Exchequer Iudgment was affirmed and it is said that our Law takes no notice what a Cousener is Trin. 37 Eliz. Brookes Case HE is a false Knave and keeps a false Debt Book for he chargeth me with the receit of one peece of Velvet which is false not actionable Mich. 37 and 38 Eliz. Charter versus Hunter THou art a Pilfring Merchant and hast Pilfred away my Goods from my Wife and my Children not actionable A Butcher and his Wife brought an action upon the Case against B. and his Wife and shew that the Plaintiff used the Trade of a Butcher and that his Wife in his absence sold and delivered flesh and the words were that the Wife of the Plaintiff is a cousening woman and hath cousened one of her Neighbours of four pounds And it was alledged over that she the Defendant would bring good proof of it and adjudged that an action lies not Trin. 13 Jac. Rot. 650. Heard versus Baskerfield Brownlâ—wâ— Devon WIlliam Heard Plaintiff Replevin against Richard Baskerfield in Replevin for taking two Cowes at Brood the Defendant makes Conuzance as Bayliff to John Dinham Esquire and shows that Walter de la Therne was seised in Fee of twenty acres of Land wherof c. And by his Deed shewn in
Court 12 E. a. granted a Rent-charge of two shillings out therof to John Milleton and Walter Milleton In Replevin one makes Conusance derive his Estate from one as Cosin and Heir and shews not how John Milleton dies and Walter survived and died seised and this Rent descended to one John Milleton of P. as Cosin and Heir to the aforesaid Walter and he was seised in Fee and one John Dinham was seised in Fee of one house and twenty acres of Land in Pensons and by Deed shewn in Court exchanged them with the said John Milleton for the said Rent and Walter de la Therne being seised of the Land out of which the Rent issued attorned and gave Seisin of the Rent to John Dinham wherby he was seised in Fee of the Rent and conveyed the Rent by three discents to this John Dinham for whom the Defendant makes Conuzance for ten shillings for five years arrear And the Plaintiff demurs generally upon the Conuzance And the cause was that it is not shewn how John Milleton is Cosin and Heir to Walter upon the discent First if it be good as this Case is viz. That he claimes not as Cosin and Heir but makes Title under him by conveyance afterwards Also because the Defendant makes Conuzance and is a stranger Secondly if it be but forme And this Case was argued at Bench briefly in Trin. 16. And I was of opinion because that this is the Conuzance of a Bayliff and it is a discent in one blood to which Dinham is a stranger and because that a good Issue might be taken therupon as it is alledged And if it had been a case of Bastardy the Iury might have tryell it therfore it is good by the Common Law and differs from a Formedon for there he which brings it is privy vide 41 Eliz. 13 14 in a Scire facias good without shewing how 33 H. 6. 34. Sir T. C. Case 27 H. 6. 2. 4 E. 3. 43. vide 19 E. 3. Quare impedit 58. And if it were not good by the Common Law yet it was but form and aided by the Statute of 27 Eliz cap. 5. vide in Doctor Leifeilds Case lib 10. fol 94. And Iustice Winch agreed with me but Warburton to the contrary and argued strongly that it was substance and was very materiall and he relied upon the Book in the 38 H 6. 17. and he put the cases of 11 H 6. 43. 8 H 6. 22. 2 H 2. and Wimbish and Talbois case Plowden There is debate and argued two against two and no Iudgment given because that it is not shewn Comment Cosin vide 2 H 5. 7. a good Issue there is no such Ancestor a generall Demurrer confesse not the matter as in Debt upon a Bill he plead payment and the Plaintiff demur that Demurrer doth not confesse the payment Lord Hobart would not speak of the Common Law but it seemed good to him by the Statute The Title of the Act is An Act for furthering of Justice Definitive Iustice and Interlocutery The Statute takes not away form but the intrappings and snares of form No place where the Obligation is made cannot be tried by them affirmatively Hough and Bamfields case matter and no form and so Dyer 319. But the point of Cousinage which comes by videlicet is form And if the case of Wimbish and Talbois had been at this day it should bee aided and Iudgment for the Defendant Sheriff ought to deliver the Moyety by meets and bounds IT was argued by the Court that upon an Elegit the Sheriff ought to deliver the Moyety by meets and bounds and if it be so that the Conuzor be Ioynt-tenant or Tenant in Common then it ought to be so specially alledged and contained in the return Pasch 16 Jac. Drury versus Fitch Case DRury an Attorney of this Court brought an action upon the case against Fitch one of the Serjeants of London for saying I arrest thee for Felony and after not guilty pleaded the Plaintiff was Non-suited Costs upon Non-suit where the Plaintiff hath no cause of action And now it was moved that no costs should be given to the Defendant because that the words will not beare action and therfore Iudgment shall be given Quod nil capiat per billam And they vouched one President in Grewstons case in Ban. Reg. vide that now by the last Statute costs shall be given to the Defendant in all cases where the Plaintiff should have costs if he recover but in such case where the Plaintiff if he recover shall not have costs the Defendant upon the Non-suit of the Plaintiff shall not have costs But it seemed to Lord Hobart that in this case the costs are for vexation and this is more vexation if he had no cause of action vide 29 H 8. fol 32. It is there resolved that an action lies for the costs notwithstanding a Writ of Error brought And the last day of this Term the Court was of opinion that the action lies for the words for it is more then these I charge thee with Felony and if the Action lies not yet the Defendant shall have costs for it was such an Action in which the Plaintiff ought to have costs if he recover Vpon motion in Court by the direction of Iustice Warburton who had caused a Iury to be drawn by reason of the slendernesse of the matter and for avoiding the charge of a speciall Verdict the Case was A Copyholder was a Lunatick and the Lord committed the custody of his Land to one which brought an Action of Trespasse Action brought by the Committee of a Lunatick which is a Copyholder and whether it ought to be brought by him or by the Lunatick was the question And the opinion of the Court was that the Committee was but as Bayliff and hath no Interest but for the profit and benefit of the Lunatick and is as his Servant and it is contrary to the nature of his Authority to have an Action in his own name for the interest and the Estate and all power of Suits is remaining in the Lunatick And it was ruled in this Court that a Lunatick shall have a Quare impedit in his own name vide Beverlies case Coke lib 4. the diversity between a Lunatick and an Ideot and H 8. Dyer fol 25. And though when Guardian in Socage as it was adjudged makes a Lease for years his Lessee shall have an Ejectione firmae yet there the Guardian hath the Interest and is accountable therfore But in this case the Committee hath no Interest but is as a Servant appointed by the Lord to keep the possession for him who is not able to keep it for himself Lord Hobart and the Court also agreed that the Lord of a Mannor hath not power to commit or dispose of the Copyhold of a Lunatick without speciall Custom no more then a man shall be Tenant by the Curtesie c. of a Copyhold
that the Plea is not good Harris argued for the Defendant for three reasons 1. Because by the Lease this was included vide 21 H 6. 61. grant of Conuzance c. gives power to make a Steward tempore E. 1. Fitz. 41. 2 E. 2. Bar 237. grant to fish in a Pond yet he cannot make a Trench 2. The Coles are the Inheritance and the bettering of them is the bettering of the Inheritance 3. For the profit of the Common-wealth 14 H 8. 18. 20 Eliz Dyer 361. Altams case Trench to make a Meadow the better is no wast vide 22 H 6. 6. digging of certain Loads of Gravell for the amending of the Land vide 12 H 4 5. And for telling this ought not to be answered any other way then by justifying of the Imployment and the Plaintiff may reply upon the sale if he will and the case is long debated 5 E 4. 10. vide Dyer 37. Malenders case And the last day of this Term the Lord Hobart declared that we were all of opinion that the Plea is not good for there though the Lease be of Mines and by vertue therof the Lessee might open new Mines as in Sanders case Coke lib 5. fol. 12. there it shall be intended of new Mines which in themselves is wast if it had not been by speciall words And the digging of a Mine is an impairing of the Inheritance and a great benefit to the Lesses and therfore if Lessee for years build a new house if he cut Trees off the same Lands for the making therof it is wast 17 E 2. Fit wast 118. And no more then one may make a Brick Kilne and burn Brick or a Lyme Kilne and burn Lyme with wood growing upon the ground and sell the Brick or Lyme no more may the Defendants in this case cut down wood for the making and supporting of these Mines for Coles which they sell vide 41 E 3. 17. And so Iudgment was given for the Plaintiff Edmonds Case MEmorand That at the Assises holden at Winchester in Lent 15 Jac. one William Edmonds was indicted of Burglary because that he Burglariter and feloniously did break the house of one Richard Heydon in the night at Ramsey Burglary and the Iury gave a speciall Verdict We find that Richard Heydon and Christian his Wife were both in Bed and at rest in an upper Chamber in the Mansion house of the said Richard Heydon and that the said William Edmonds then was and yet is the Servant and Apprentice of the said Richard and that he then lay in another Chamber of the said house remote from the Bed-chamber of his said Master and Dame and that there was a Door with a Latch at the Stairs foot of the said Bed-chamber of the said Heydon but none at the Stair-head being the entrance into the said Bed-chamber of the said Heyedon We find that the said William at the said time in the Indictment drew the Latch of the Stair-foot door and opened the said door being then latched and went up the Stairs and entred into the Bed-chamber of his said Master with an intent to murther the said Heydon and that he did then and there with an Hatchet with an intent to murther his said Master strike and grievously wound him and gave him fifteen wounds on the head and other parts of his body And if upon the whole matter c. And this speciall Verdict was shewn by the Lord chief Baron Tanfield unto all the Iudges of Serjeants Inne in Chancery Lane viz. Iustice Warburton Crook Baron Bromely Iustice Dodderidge Houghton Winch and Hutton And they all besides Winch which doubted agreed that it was Burglary and afterwards in the same Term at a meeting in Serjeants Inne in Fleetstreet it was shewn to Mountague Hobart and Denham which concurred Mich 16 Jac. Staffords Case FAlse Imprisonment was brought by Sir John Stafford the Defendant justifie Matter of Record tryed by the Country that Bristoll is an ancient City and that time wherof memory c. there hath been a Court holden there before the Sheriffs c. and justifie that there was a Plaint levied and Iudgment and that the now Plaintiff was taken in execution The Plaintiff replyed Quod non fuit aliqua querela levata according to the custom and requires this Quod inquiratur c. And it was tryed at Bristoll and found for the Plaintiff and damages twenty six pounds And it was moved in Arrest of Iudgment that this being matter of Record viz. the entry of the Plaint in a Court of Record it shall be tryed by the Record and not by the Country And it was adjudged that the tryall was good because that it is not meerly Record but whether it was according to the Custom And Non prosecutus est ullum breve is tryable by the Country Quaere if the King grant by Patent to hold plea under forty shillings if it be a Court of Record Sir Walter Rawleys Case MEmorand that on Friday the 23. of October upon conference between all the Iustices of England whether a privy Seal was sufficient it being directed to the Iustices of the Kings Bench to command them to award execution against Sir Walter Rawley which was attainted of Treason at Winchester Mich. 1 Jacobi How Prisoners which are attainted of Treason set at large shall be brought to execution before Commissioners of Oyer and Terminer or how they should proceed before execution be awarded It was resolved by all that he ought to be brought to Bar by Habeas Corpus to the Lieutenant of the Tower and then demanded if he could say any thing why execution should not be awarded for the proceedings against him being before Commissioners they are delivered only into the Court of Kings bench or they might have remained in a Bag or a Chest and no Roll made therof and so long time passing it is not a Legall course that he should be commanded by a privy Seal or great Seal to be executed without being demanded what he hath to say for he might have a pardon or he might say that he is not the same person As if one be Outlawed of Felony and taken he shall not be presently hanged but he shall be brought to Bar and so demanded c. And upon this resolution a privy Seal came to the Iustices of the Kings Bench commanding them to proceed against him according to Law And therupon a Habeas Corpus was awarded and Octob 28. he came to the Bar being brought by the Lievtenant and there he was demanded of whether he had any thing to say why c. and there he shewed that the King had imployed him as Generall of a Voyage and hath given him power De vita membris upon others And whether this did amount to a pardon or no he knew not The Attorney-generall said that the King pardoned no Treasons by any Implication but it ought to be by speciall words Then he said
Prender and that he might have an Assise or justifie for Damage feasant And he which hath the fore-crop is he which hath the Free-hold 15 E. 2. Fitz. Prescription 51. And the very case in temps E. 1. Fitz. Prescription 55. and this sole feeding might have Commencement by Grant and therfore a good Prescription Iudgment for the Avowant Trin. 19 Jac. Wilson versus Stubbs WIlson brought Replevin against Ralph Stubbs Replevin The Defendant avow as Bayliff to the Earl of Northumberland for Amercements within a Leet at Toxcliffe And upon Issue joyned and tryall at the Common Pleas by Default it was alledged Supersedeas upon Indempnitate nominis that Ralph Stubbs was dead and the Plaintiff would proceed and had Iudgment Damages and Costs sixteen pounds and a Capias awarded to the Sheriff of York and Ralph Stubbs the Son as is supposed is taken and had an Indempnitate nominis which Writ being directed to the Iustices they award a Supersedeas And now upon divers motions the sixteen pounds was brought in Court and they proceed upon the Indempnitate nominis The question was if the Supersedeas lye therupon being that it is only a surmise and matter en fait and lies properly and more frequently for preventing an Arrest upon Outlawry and after that the party is taken upon the Outlawry vide 5 E. 4. 23. vide lib Intrat and it is matter not frequent in use and is in nature of an Audita Querela and the party shall find surety to pay the Debt if it be found that he be not another person And the Court inclined strongly that it is no Supersedeas but it is much in the discretion of the Court vide lib Intrat 5 E. 4. 36. bone Case and fol. 51. 53. Mich. 19 Jac. Allen versus Swift Case ALlen brought an action of the case against Swift and declared That wheras he bargained and sold that is to say Merchandized for Lead in the County of Derby Words and therby hath acquired money towards his livelyhood The Defendant said of him He is a Bankrupt and is not able to pay his debts but will run the Country It was found for the Plaintiff and moved in Arrest of Iudgment by Serjeant Harvey that the action lay not because that the Plaintiff shewed not that he used it as his Trade nor that he gained his living by buying and selling Also he is entituled Gentleman But the Court hold that the action would well lye and it had been adjudged 14 Eliz. That a Tanner shall have an action for such words Mayes versus Sidley Case Consideration of forbearance MAyes brought an action of the case against Sir Isaac Sidley and count that wheras one was indebted unto the Plaintiff in a hundred pounds by Obligation the Defendant in consideration that the Plaintiff at his request would forbear to sue the said party and if he did not pay it the Defendant would And upon Non assumpsit pleaded and Verdict for the Plaintiff Hitcham moved that is no good consideration for it is uncertain for if he forbear one hour one day this is a forbearance And he resembled it to Palmers Case forbear him a little while and if he do not pay it I will This was adjudged for the Plaintiff in Banco Regis but afterward by a Writ of Error it was reversed And he cited a President which was shewn of the 36 of Eliz. where the case was the same in effect with this And Iudgment reversed but it might be for other Errors And the Court inclined that this action lye for when it is alledged that he did forbear it shall be intended of such a forbearance by which the party had ease and benefit and shall be a competent and convenient time and that shall be convenient time as in other cases As Tenant pur auter vie shall have convenient time to remove his goods after the death of Cestui que vie And it shall be convenient time to purchase a Writ by Iourneys Accounts And it was said that there were many Presidents of this case and of the like actions for if he doth not forbear convenient time then it is no consideration and it being left indefinite the Law will judge of the convenient time but it was adjourned and after the first day of Hil. 21 Jac. This case was moved by Hitcham and he said that the Writ and Count vary for the Writ is Per magnum tempus distulit And the Count saith that he did forbear for the space of a year and more Also no time is put in the Writ but is in the Count and that he did forbear by a year and more after that so that it doth not appear that he did forbear till the Writ purchased for that appear to be half a year after the year passed and he ought to forbear it totally Richardson answered him that the breve Writ did not comprehend the time and circumstance but the matter and substance and â—ot at large for then it should not be breve As in a case sur Trover no day in the Writ but in the Count and forbearance of a year and more being alledged and issue taken and found for the Plaintiff it shall not be intended that he had sued and not forbeared till the commencement of that Suit And it is like to a grant of a Rent pleaded without Deed and issue joyned upon non concessit and it is found Concessit and good for it shall be intended effectuall c. And the Court shewed their Iudgment and concurred that Iudgment should be given for the Plaintiff And this difference was taken when the promise appear to be such that it shall not be any benefit to the party in whose behalf it was requested as forbearance for an hour or a little time there it is not good but where it is generall and not limited to any time that shall be a 〈◊〉 ill forbearance or at least a forbearance for a convenient time and that ought to be alledged for such a time which the Court shall adjudge a convenient time Lord Hobart agreed but he said that it is not a totall forbearance for then it should be that he should not sue him at all but that he will forbear is good by the subsequent forbearance and there is no variation between the Count and the Writ but the Count illustrateth and amplifies the Writ Iudgment pro querente Pasch 20 Jac. Suggs versus Sparrow IN a Scire facias against the Bail Scire facias he plead that after the Iudgment and before any Writ of Capias was sued out against the Principall he died And upon Demurrer the Court adjudged it a good plea Bayle is discharged where the Principall died before Capias awarded Tadcaster against Hollowell Timberley and Calverly and iâ— this case a Iudgment was cited Hil 10 Eliz. Tadcaster brought debt against Hallowell Hobs was Bail and the Plaintiff recovered The
are not Affirmative or Positive but a supposition only as if he had said Nowels case I will indite him for such a matter it was vouched to be adjudged 51 Eliz. in Nowels case that to say of an Attornaâ—â— That he was Cooped for forging Writs maintain an action And 14 Eliz. He is infected of the Robbery and he smelleth of the Robbary adjudged actionable In balls case There is never a Purse cut in Northamptonshire but Ball hath a part of it will not bear action But the Court would not declare their opinion Quia sub spe Concordiae Griggs Case GRigg which is the Examiner at Chester preferred there this Bill in the Chancery vocat the Exchequer Prohibition â—i Chester against one which inhabite within the same County and another which inhabite in London being executors to one to whom the said Grigg was indebted by Obligation which Obligation was put in suit in the Court of Common Pleas and there proceed to processe before the Bill exhibited and the Bill concern equity of an Agreement that the Testator had promised that one Robert Grigg should assign a lease of Tithes to the Plaintiff in consideration of his entry into the said Obligation and if he could not procure it that then the Obligation should not be prejudiciall to him and he which was distributing in Chester answered therto And an Order was made by Sir Thomas Ireland Vice-Chamberlain that Processe should be awarded to him which dwelleth in London And an Inquisition was granted to stay the proceedings at Common Law And afterwards upon the motion of Serjeant Hitcharâ— Sir Thomas Ireland was in Court and shew all that he could to maintain the Iurisdiction viz. That the Contract was made in the County Palatine and that the priviledge pursued the Plaintiff and ipse qui est reus non potest eligere c. Yet it was resembled to ancient Demesn and Guildable And by Lord Hobart he which inhabit at Doveâ— by this way may be inforced to come and answer to a Bill in Chester which would be infinite trouble and the matter is transitory And it was resolved that the Court of Chester had not power in this case but it belonged to the Chancery of England And a Prohibition was granted Hil. 20 Jac. ONe case was in the Kings Bench viz. Trespasse Baron and Feme brought in action of Trespasse Quare clausum fregit Trespasse by Baron and Feme for breaking the Close of the Baron for the Battery of the Wife and for Battery of the Feme the Defendant pleaded a License to enter into the Close made by the Baron and not guilty as to the Battery And the Court was moved in Arrest of Iudgment because the Husband and Writ could not ioyn for the weaking of the Close of the Baron the Writ shall abate for all But the Lord chief Iustice and Iustice Dodderidge were of opinion that the Plaintiff should have Iudgment And it seems that the Law is clear accordingly vide 9 E 4. 51. Trespasse by the Husband and Wife for the Battery of them both the Iury found so much for the Battery of the Husband and so much for the Battery of the Wife and so Damages assessed severally because the Wife could not soon with the Husband in an action for the Battery of the Husband for that part the Writ shall abate and for the Battery of the Wife they shall recover for for that they ought or joyn in an action vide 46 E 3. 3. Baron and Feme brought Trespasse for the Battery and Imprisonment of the Wife and the Writ was ad damnum ipsorum and yet good vide 9 H 7. in the case of Rescous and 22 E 4. 4. there is a good diversity when the Writ is falsified by the shewing of the party himself and when it is found by Verdict And Iustice Haughton and Iustice Chamberlain were of opinion that the Writ should abate for it is apparent that as to the Trespasse Quare clausum fregit the Wife had no cause of action But this case being debated at Serjeants Inn in Chancery Lane at the Table the Lord chief Baron was of opinion that Plaintiff should have Iudgment for that part and he held the Writ good in part and Reddenda singula singulie Meâ—enest issint as it seems no more then in the case of 9 E 4. for there the Writ shall avate for part And if an action of forgery of Deeds be brought against two for forging and publishing and found that one forged and the other published the Plaintiff shall have Iudgment Howell versus Auger Trespasse IN an action of Trespasse brought by Noy Howell against Auger for breaking of a house and five acres of Land in Fresham upon Non Culp pleaded the Iury gave a speciall Verdict Devise of a Fee after a Fee Robert Howell seised of the Land in Question and of other Land by his Will in writing devised this Land to Dorothy his Wife for life and devised this Land to Thomas Howell his younger Son to him and his Heirs in Fee under the Condition which shall be afterwards declared And the other Land was also devised to Dorothy for life and to the Plaintiff and his Heirs in Fee under the Condition hereafter limited If Dorothy died before the Legacies paid then he will that they shall be paid by Noy and Thomas his Sons portion-like out of the Houses and Lands given them And if either of my Sons dye before they enter or before the Legacies paid or before either of them enter Then I will that the longer liver shall enjoy both parts to him and his Heirs And if both dye before they enter then his Executors or one of them to pay the Legacies and to take the profits till they be paid and a year after and made Dorothy his Wife and Christopher Roys his Executors and died Dorothy entred the Plaintiff Noy by his Deed In 33 Eliz. in the life of Dorothy released to Thomas all his right c. with Warranty Release of Lands devised before they be vested Thomas by his Will devised the Land for which the action is brought to Agnes his Wife and died in the life of Dorothy and before Legacies paid Dorothy died and Agnes entred and took to Husband Henry Ayleyard who leased to the Defendant upon whom Noy entred and the Defendant re-entred And Si super totam Materiam c. And this Case was well argued at Bar in two Terms and the first question was If this Devise of a Fes after a Limitation be good or not much was said for it and they relyed upon a case which was adjudged in the Kings Bench between Pell and Brown of such a limitable Fee Pell and Brown And many Cases put that this operate as a future Devise Executory as well as one may by his Will Devise that if his Son and Heir dye before he marry or before that he come to the age of
Copyhold to one which is admitted Copyholder extinguisheth the Right of the Copyhold by Deed And if a Copyholder release to the Lord that extinguisheth the Copyhold although it be contrary to the nature of a Release to give a possession It was agreed here that this Copyhold is not extinct but the Lord which is Lessee for years Dominus pro tempore may grant it by Copy de novo Mich. 21 Jac. Aris versus Higgins ARis brought an action upon the case against Higgins for saying these words He is a Theef and hath stol◠my Corn Case Words and made me no satisfaction And it was found for the Plaintiff and afterwards moved in Arrest of Iudgment that these words were not actionable for Verba ambigua in mitiori sensu sunt accipienda And therfore Coke lib 4. fol 19. Thou art a Theef for thou hast stoln Apples out of my Orchard or thou hast robbed my Hop gound the latter words qualifie the generality of the former Also an Innuendo will not make either the person or the matter certain Coke lib 4. fol 10. Barham did burn my Burn Innuendo a Barn with Corn not actionable and that he had not satisfaction that proves that it was for Corn growing for otherwise if it were Felony the party shall not have satisfaction But Iustice Winch was of opinion that the action lay and that the words He is a Theef he hath stoln my Corn are both actionable and not like to Robbing my Orchard or stealing my Apples in my Orchard for Apples in an Orchard are commonly upon the Trees And as to the words Thou hast made me no satisfaction these do not qualifie the former words Thou art a Theef and hast stoln a bundle of Fitches adjudged actionable Iustice Jones was of the same opinion for stealing of his Corn shall be intended of Corn severed for otherwise it is acres of Corn or Corn growing Serjeant Hobart was of opinion that the words shall be intended in mitiori sensu And we all agreed that that which qualifies or extenuates words ought to be full and not ambiguous Rud versus the Bishop of Lincoln Quare Impedit IN a Quare impedit brought by Edward Rud against the Bishop of Lincoln Lord keeper Drury and Stubbin for the Church of Dackworth upon Evidence at Bar these Points were resolved in the Court. Quare Impedit 1. When one usurps upon a Lease for years that this Usurpation gains the Fee and puts the very Patron out of possession And though by the Statute of Westminster 2. cap. 5. he in reversion after the Lease may have a Quare Impedit when the Church is void or may present and if he present and his Clerk be admitted and inducted that then he is remitted yet untill it be recovered or his Clerk be in the Usurper hath the Fee and against him lies the Writ of Right and that descends to his Heirs and his Wife shall be endowed 2. When the King present one by Laps not having any Title of Laps and a recovery is had against him in a Quare Impedit by one which had no Title If this gain the Patronage And it is clear the King had no Title to present and although he which comes in by such Laps is not Incumbent nor gains the Patronage yet he is Incumbent as to all Ecclesiasticall matters to have Offerings Tithes c. for it is only as to the rightfull Patronage no gaining of the Patronage but he may present vide Greens case Coke lib. 6. fol. 29. 3 It was resolved by the Court that when one recover in a Quare Impedit although that no Writ be awarded to the Bishop yet if upon non presentment the Bishop will admit and institute his Clerk and he is Inducted And that is good as wel as a man may enter without a Writ of Habere factas seisinam after recovery so may the Patron which hath recovered in a Quare Impedit present and that being accepted and Institution and Induction pursuing therupon it is good 4. Also whore the Issue was whether the Church was void at the time of the presentment of Palu or not and it appears that the case was that Thomas Rud after the Church was void by the death of Clement Rud and after that one Taxall was presented by Laps and Admitted Instituted and Inducted where the King had not Title the said Thomas Rud having good Title to present made a writing of presentation of the said Paul and after be it then exhibited to the Bishop or no The said Thomas Rud brought a Quare Impedit and recovered and afterwards this Presentation is exhibited to the Bishop and he admit institute and makes a Mandate for Induction which also is afterward done accordingly Now the Issue being whether the Church was void at the time of the Presentation of Pain the time of this Presentation shall now be the time of exhibiting therof after the Judgment And then as to Rud which had recovered against him the Church was then void for whensoever the Bishop had the Presentation exhibited at that time he ought by the Law to admit institute and give a Mandate for Induction the then Church is void But after the Judgment the Bishop ought to accept that and admit and institute Ergo at that time the Church was void and that is to be the time of the Presentation 5. When one having good Title to present and an Incumbent by Usurpation is admitted instituted and inducted and after that the Patron present and the Bishop refuse and after the Patron recover and then he which had this Presentation exhibite it to the Bishop this is now a good Presentation and the Patron cannot revoke or give him a new Presentation but if the Patron before the death of the Incumbent makes Letters of Presentation that is void because he had no Title to present Hil. 20 Jac. Rot. 1942. Pleydell versus Gosmoore Wilts EDmond Pleydell brought an action of Trespasse against Richard Gosmoore Trespasse Where one may fetter an Estray and William G. for the taking and chasing of a Colt and fettering of him with a Continuando as to the fettering The Defendant convey the Mannor of Sharston to Francis Earl of Hertford And that the Earl and all those whose Estates c. had the Estrayes which come within the said Mannor 〈◊〉 that the Tithing-men for the time being seised the Estrayes and proclaimed them at the next Market or Fair c. and kept them untill they be claimed or forfeited And that he was a Tithing-man and seised this Colt as an Estray and because this Colt was so feirce c. that he could not be kept in Pasture he fettered him and kept him in his Pasture within the Mannor and that for the space of two weeks and the Plaintiff having notice claimed him and had him delivered c. The Plaintiff demurred generally Attho said that he had not avorred that he continued feirce
pleaded Not guilty absque hoc that the said suit and tryall was for the said Common And Issue being joyned it was found for the Plaintiff and Damages to twenty pounds And in Arrest of Iudgment it was moved that now it appears that it was not for the maintenance of the Title of Common that it could not be for the tryall therof because he did not plead the Title of Common which had been the proper apt way for the tryall therof And when the Iury find that which is contrary and repugnant to Law that is repugnant and not good And this case was strongly argued by Serjeant Davenport in Arrest of Iudgment and by Attho for the having of Iudgment And first he said That although there was a Parlance and Communication concerning the Common yet the promise is to defend this action brought by Palmer and is pro defentione of the Common not generally but against Palmer and the promise is to pay the Moyety of the Charges if he prosecute the said Suit untill the determination therof so that if it had been found against the now Plaintiff the now Defendant ought to have paid the Moyety of the said charges And it is not agreed that he shall plead title by Prescription for the Common but that he should prosecute it untill the determination of the Suit for the maintenance of the Common And the Court gave Iudgment for the Plaintiff for it might be for the maintenance of their Common against Palmer for if he had not the Soil therof but had inclosed it as part of his Wasts the Plaintiff could not plead the Title to Common without admitting the Soil and Free-hold to be in Palmer And if one had been of councell and to advise a Plea if he had not discovered that Palmer had no Title he would have advised him to have pleaded Not guilty for if the said Palmer had no Title to the Soil which the now Plaintiff could not know it should be found against him and so this Plea might have been in maintenance of Common And the Lord Richardson who at first doubted now concurred and sayd that he was fully satisfied Trin 3. Car. Chapman versus Chapman Debt REbecca Chapman brought an action of Debt against Henry Chapman upon an Obligation with Condition to perform the Covenants contained in certain Indentures The Defendant pleaded a generall performance the Plaintiff replyed and shewed that she made a Lease to the Defendant of certain Cole-pits rendring eighty pounds Rent and that the Defendant did not pay the Rent at the day Obligation conditioned for the payment of Rent demand is not necessary to be alledged after generall performance pleaded wherupon the Defendant demurred And it was adjudged upon Argument for the Plaintiff but the matter upon which the Defendant justified came not in question viz. If the Plaintiff ought to have demanded the Rent And that the Obligation had not altered the nature of the Rent it being generall to perform all Covenants and the reason is apparent for when the Defendant plead performance of all the payments that is intended an actuall payment for he cannot now rejoyn that he made tender for that shall be a departure from his Plea And that was the reason of the Iudgment which was Pasch 43 Eliz. between John Specot Plaintiff Specot and Shere and Emanuel Shere Defendant upon the like case in debt upon an Obligation wheras the Defendant had granted an Annuity or Rent of six and twenty shillings eight pence to the Plaintiff for one and twenty years the Condition was that if the said Shere perform all the Covenants c. conteined in the said Writing so that the Plaintiff may enjoy the Rent according to the intent therof then c. the Defendant recited the Deed and pleaded performance the Plaintiff replyed that the Defendant had not paid the said eight and twenty shillings eight pence upon such a Feast wherupon the Defendant demurred and adjudged for the Plaintiff And the Lord Coke in his private Book as the Lord chief Baron said had shewn this reason If the Defendant had pleaded specially That he was upon the Land and ready to pay and to make tender but the Plaintiff did not come to demand it then the Plaintiff ought to shew that he did demand it which seems to be agreed 14 E 4. 4. 2 H. 6. 57. 11 E 4. 10. 21 E 4 42. but Brook 6 E 6. Tender makes this diversity when the Condition is expressed to pay the Rent that alters the nature of the Rent But otherwise when it is to perform Covenants And the Iudgment given in the Kings Bench was affirmed Trin. 3 Car. Stephens versus Oldsworth IN a Quare Impedit brought by Stephens and Cross against Oldsworth and Holmes for the Church of Lechamseed the Incumbent pleaded Quare Impedit Tenure that he was Parson Imparsonee to the Church of the presentation of the King and confessed the Seisin of Sir Anthony Greenwood under whom by the grant of the next avoidance the Plaintiffs claim but said that the said Sir Anthony held the said Mannor of the King per redditum ac wardam Castri Dower to be paid yearly 8 s. 1 d. ob q. And among other matters which I omit it was resolved that it was Socage Tenure for a Rent for Castleguard is Socage vide Littleton 26. Coke lib 4. fol 6. 5 E 4. fol. 128. F.N.B. 256. a Mich. 3 Car. Young versus Young Formedon in Descender Act of Court shall be amended IN a Formedon in the Descender brought by Young against Young the Demandant was within age and was admitted to prosecute by his Guardians and that appears by a generall admittance before Iustice Jones And this admittance was first entred in the remembrance of Gulstons Office and afterwards in the Plea Roll And the Demandant which is admitted by the Court viz. per Guardianos ad hoc per Curiam admissus and there the Concessit per Curiam quod prosequatur per Gardianos is entred and so is the Roll upon the View And in the Philizers Roll the recitall is That the Demandant per Gardianos admissus obtulit se And in this Roll the Concessit per curiam of admitting the Demandant to prosecute by his Guardian is not entred And after Verdict and Iudgment for the Demandant a Writ of Error was brought and that assigned for Error And it was moved that it might be entred upon the Philizers Roll. And it was resolved by all the Court that it should be supplyed and entred upon the Philizers Roll and the principall reason was because that this admittance by his Guardians is the act of the Court and not like to the entry of the Warrant of Attorney nor to the Essoin Roll vide Dyer 330. otherwise it is of Admission by Prochein ami Where an Infant ought to appeare by Gardian and where by Prochein amy vide Rawlins case Coke lib. 4. fol 53. The
Defendants disturbed her The said Bishop died and the Defendant plead that he is parsona imparsonata ex presentatione Domini Regis nunc And said that Sir Thomas Chichley was seised in Fee of the said Advowson and also of the Mannor of Preston and divers other Lands in the County of Cambridge which Mannors and Lands were holden of King James in Capite by Knights-service and being so seised he died and that this Advowson and the Mannor descended to Thomas Chichley his Son and Heir who at the time of his death was within age And that afterwards by force of a Writ of Diem clausit extremum this matter was found wherby the King seised the body and was possessed of the Mannor and of the Advowson and that the said King James died the King which now is suscepit regimen hujus regni and was possessed and the Church became void And the King by his Letters Patents under the great Seal presented the Defendant Thompson and traversed the Grant made by Sir Thomas Chichley to Thomas East and Edward Anger of the said Advowson as the Plaintiff had alledged The Plaintiff replyed protestandâ— that the Defendant is not Parson Imparsonee and that the Plea is insufficient Pro placito dicit quod non habetur aliquod tale recordum talis inquisionis post mortem praedicti Thomae Chichley militis modo forma prout wherupon the Defendant demurred And after many Arguments at Baâ— by Attho Henden Davenport and Hedley it was adjudged for the Defendant And that the Title of the Plaintiff being traversed brought to have been maintained and not to traverse other matter alledged by the Defendant for Traverse upon Traverse is only when the matter traversed is but Inducement Also it appears fully that the King is entituled to this Presentation though there was not any Office vide 21 E 4. 14 H 7. and then all the Titles of the King should be answered and therfore the deniall of the Office is not materiall for if he dies seised the King may present without Office vide Bendoes case 21 Eliz Rot 1378. Crachford against Gregory Lord Dacren when the King is entituled by Office to an Advowson though the very Title be in a stranger yet if the Church be void and he which hath Title present this is but Vsurpation Vide 17 H 7. Kel 43. 11 H. 8. ibid. fol. 200. vide 21 E 4. 1. 5 E 4. 3. or 13. of things which lye in Grant the King is in actuall possession Crachfords case 20 E 4. 11. Stamf. fol 54. 2. R 3. issue 7. 28. 23 H 8. Kel 97. new Book of Entries fol 130. vide there that Traverse is allowed to be taken upon Traverse vide for that 9 H 7. 9. 10 E â— 49. Dyer 107. 10 E 4. 2. 3. 6 E. 3. â— When two Titles appear for the King as here the dying seised of the Advowson of Sir Thomas C. who also died seised of the Mannor of Preston holden in Capite that is a good Title and the Office found is another Title and â—oth ought to be answered in case of the King vide for that matter 37 H 6. 6. 24 H 3. 27. 46. E. 3 25 9 H 6. 37. 39 H 2. 4. 40 E 3. 11. In case of severall charges to the King although the King be not party yet they ought to be answered Hedley Serjeant argued for the Plaintiff that the presentment of the King tolls all the right of the Plaintiff and therfore only ought to be answered and he ought not to traverse the Title of the Plaintiff which by the Plea was toll'd but notwithstanding that he answered not the dying seised of the Advowson and the Tenure by which the King is intituled upon the Office and therfore all is one And the Plaintiff had waved his Title and not maintained it And therfore Iudgment was given for the Defendant Pasch 4 Car. Congham's Case Rescous by the Plaintiff in the primer action IN an action upon the Case against Congham and his Wife That wheras the Plaintiff hath recovered in Debt against one and had a Writ of Capias ad satisfaciendum directed to the Sheriff of Cambridgeshire and the Sheriff had arrested the party and had him in Execution for the Debt the Defendants rescued the party and he escaped Vpon Not guilty pleaded the Feme was found guilty of the Rescous And it was moved in Arrest of Iudgment by Aleph that this action lies not because that Debt lies against the Sheriff And the Sheriff shall have an action for the Rescous vide F N B. 102. And properly this action of Rescous lies where it is upon mean processe and that is for the delay by the Rescous and damage may be greater or lesser accordingly And the Rescous is according to the condition of him which is arrested for if he may be easily taken again and that he becomes not more poor that then the damage is the lesse vide 16 E 4. fol. 3. But after divers motions at Bar Iudgment was given for the Plaintiff And the Lord Richardson held strongly that it lies And this Tort may be punisht at the Suit of the party who had damage therby viz. the party the Sheriff or Baily And Harvey and Crook agreed but Yelverton and my self doubted therof because that it is an immediate wrong to the Sheriff or Baily and the party had no prejudice in common presumption because that his action is transferred to the Sheriff who hath more ability to satisfie him Farrington versus Caymer LIonell Farrington qui tam pro se quam pro c. brought an Information against William Caymer Information where it shall be brought upon the Statute of 23 H. 8. cap. 4. against Ale-brewers and Bear-brewers for selling Bear at higher prises then were assessed by the Iustices upon Not guilty pleaded the Plaintiff had a Verdict at Norfolk Assises And it was moved in Arrest of Iudgment that the Information was brought in the Common Bench and yet it was brought and tryed in the proper County where the Offence was committed wheras by 33 H. 8. cap 10. 37 H 8 cap 7. 21 Jac cap 4. it ought to be brought in the Country and not in the Common Pleas. And upon grand deliveration and hearing of councell of either part the Court resolved that Iudgment should be given for the Plaintiff And first it was agreed that wheras by the Statute of 23 H. 8. cap. 4 which appoint that the Iustices of Peace assesse the prises of Barrels and other Vessels of Beer and that they which sell against that rate forfeit six shillings c. to be recovered by action of Debt Bill Plaint or Information in any Court of Record in which no wager of Law c. and gives one Moyety to the party which will sue and the other to the King no action may be brought in any Court of Record but onely in one of the four Courts of Record at Westminster
refusall was within the time of six years and it was adjudged for the Plaintiff because that the request is the cause of the Action for without it he could not have his action And the sole matter upon which Davenport insisted was that this was a Contract by the Husband wherupon the Plaintiff might have an action of Debt against him and then it is but an Assumpsit in Law and the request is not cause of action And therfore he said as well as Debt lies upon the delivery of Cloath to a Taylor for the making Garments therof so an action of Debt lies for the summ accompanying the speciall matter viz. for the payment of so much as the making shall be reasonably worth vide Coke lib 4. fol 147. so Debt lies as well against the said Sir Arthur upon this promise being made then and there he vouched 34 E 1. Fitz Debt 167. vet N. B. fol 62. 30 E 3. 18. 19. 27 H 8. Tatams case But the Court inclined that no action of Debt lay against Sir Arthur upon this Assumpsit but only an action of the case upon the request Mich. 4 Car. Treford versus Holmes Case Assumpsit in consideration of forbearance TReford brought an action upon the Case against Holmes as Executor and counted that wheras the Testator was indebted to the Plaintiff the Defendant in consideration that the Plaintiff would forbear the said Debt for a reasonable time assumed to pay it And this promise was made in December and he shew forbearance untill March next And upon Non assumpsit pleaded and Verdict for the Plaintiff Serjeant Thinn moved in Arrest of Iudgment that it is no sufficient consideration for the incertainty of the time if it had been for a little time it had not been good But the Court adjudged it good for the Court ought to judge of the time whether it be reasonable vide Isaac Sidleys case before Then he moved another Exception which was that he had not shewn and averred in the Count that the Defendant had Assets at the time of the promise vide Coke lib 9. fol 93. 94. Baines Case that ought to come on the other part or otherwise it shall be upon Evidence if it be necessary And Iudgment for the Plaintiff Mich. 5 Car. A strange increase of Water in Westminster-Hall MEmorand That on Friday the twenty third day of October by reason of the greatnesse of the Spring-tyde and a great Flood the Hall of Westminster was so full of water that neither the Serjeants could come to the Bar nor any stand in the Hall for there was a Boat that rowed up and down there and therfore all that was done my Brother Harvey went to the Stairs which came out of the Exchequer and rode to the Treasury and by this way went and set in the Court and Adjourned all the Iuries for it was the fourth day del tres Mich. And after that we were in the Exchequer Chamber and heard four or five motions of the Prothonatories there This comming into Court was not of necessity unlesse it had been the Essoin day or that the Court should be Adjourned as Craft Animar The Chancery and Kings Bench sate for they came by the Court of Wards Freeman versus Stacy Mich. 5 Car. BEtween Freeman and Stacy upon a speciall Verdict the Case was y The Plaintiff count upon a Lease by Indenture for one and twenty years rendring Rent and in debt for the arrearages of this Rent it appears that the arrearages of the Rent for which the action was brought were due six years and more before the action brought And the Lord Richardson was of opinion Arrearages of Rent reserved by Indenture is not within the act of 21 Jac. of Limitations that Iudgment should be given against the Plaintiff because the Statute of the 21. of King James cap. 16. extends to Debts for arrearages of Rent expresly But I and my Brother Harvey and Brother Yelverton concurred that this action of Debt being upon a Lease by Indenture is not limited to any time by this Statute but is out of it and shall be brought as before the making of this Statute The words are All actions of debt grounded upon any lending or Contract without specialty All actions of Debt for arrearages of Rent c. And this is an action upon a Contract by specialty 4 H 6. 31. he ought to declare upon the Indenture and it is a Contract viz. a Lease And there is cause of using the Indenture every half year And it was resembled to the case upon the Statute of 32 H 8. of Limitation a Rent-charge which is founded upon a Deed or a Reservation of a Rent upon a Fee-â—â—mple by Deed are not within the Statute of Limitation And nothing in this Statute was intended to be limited which was founded upon a Deed And the words Debt for arrearages of Rent are supplyed and satisfied by the arrearages of Rent upon a Demise without Deed. And as to the Obligation that he proof of payment might be wanting when the occasion is brought so long after the Rent became due that might be objected to Debt upon an Obligation where the day of payment is for a long time past And afterward the Lord Richardson mutata opinione agreed with us And Iudgment was given for the Plaintiff Trin. 6 Car. Shervin versus Cartwright SHervin brought a Writ De rationabile parte bonorum against Cartwright and counted of Custom in the County of Nottingham Rationabl pars bonorum is not within the â— Statute of 21â— Jac. of Limitations and shew all specially and the conclusion was that he detaineth particular Goods of the party Plaintiff which appertained to him as his part and portion And upon Non detinet pleaded it was found that the Plaintiff was intituled to this Action many years before the Statute of 21 Jac. and that he had not brought his action within the time limited by the said Statute And upon the speciall Verdict the Case being argued by Serjeant Ward for the Plaintiff it was adjudged for the Plaintiff First because that this Action is an Originall Writ in the Register and is not mentioned in the said Act and though that the Issue is Non detinet yet this is no action of Detinue for a Writ of Detinue lies not for money unlesse it be in bags but a Rationabile parte bonorum lies for money in Pecuniis numeratis vide the Book of Entries Rationabile parte bonorum And this action lies not before the Debts be paid And the Account was that therby it might be known for what it should be brought and that in many cases requires longer time then the Statute gives Another reason was that Statutes are not made to extend to those cases which seldom or never happen as this case is but to those that frequently happen Also this Statute tolls the Common Law and shall not be extended to equity And upon all these
use of the said Robert and Isaac and their Heirs for ever by force therof and of the Statute 27 H 8. they were seised of the said Rent in Fee and after the said Robert died and Isaac survived and is yet seised Per jus Accrescendi and for Rent arrear c. and for the said forfeiture of forty shillings they avow wherupon the Plaintiff demur And upon Conference between the Iudges they all agreed that by this Fine which granted to Brook and Jermy and the Heirs of Brook to the use of Brook and Jermy and their Heirs that they were in by the Statute of 27 H 8. and were Ioyn-tenants of the Rent for otherwise there would be such a Fraction of the Estato that Brook should be in by the Common Law and Jermy by the Statute and that is not according to the Statute And it appears that the use was limited by the Fine it self and not by any Indenture And the principall reason is upon the Statute of 27 H 8. which is where two or three are seised to the use of one or two of them Cestui que uâ—e shall be adjudged to have such Estate in possession as they have in use Iudgment pro Defendent Memorand That in this Term a motion was made for the filing of a Writ of Entry in a Common Recovery suffered by Sir John Smith upon a Purchase and all was well done and the Writ made and sealed Filing of a Writ of Entry many Termes after but by the negligence of the Attorney it was not filed and it was Unanimo assensu resolved that it should be filed and that after the death of Sir John Smith for it is but to perfect a Common Recovery which is a Common Conveyance And this was denied in the case of one Allonson for there Error was brought and Diminution alledged and a Certificate that there was no Writ by the Custos brevium And it is ordinary to file these Writs at any time within a year without motion Mich. 8 Car. Harbert versus Angell CHarles Harbert Plaintiff against Angell Case Words in an action upon the case of words which were Thou art a Theef and hast cousened my Cosin Baldwin of his Land And after Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words would not maintain action And at the first Iustice Crawley and Iustice Vernon were of opinion that the former part of the words were actionable and that they were not extenuated by the subsequent words but they agreed if it had been for thou hast robbed c. it would be otherwise And the Lord Heath and Iustice Hutton were of a contrary opinion and that the words And and For are in this case to have one effect and declare what Theef he intended And they relyed on Birtridges case Coke lib 4. And upon this diversity of opinion the Lord Heath conferred with the Iustices of Serjeants Inn in Fleetstreet and we with the Lord Richardson and they all agreed that the subsequent words explained his intent and meaning viz. the Robbery and cousening of the Land And Verba sunt accipienda in mitiori sensu As to say Thou hast stoln my Corn it shall be intended Com growing so in Arrowes case Arrowes case 19 Jac. Thou art a Theef and hast stoln ten Cart-loads of my Furzes adjudged not actionable for it shall be intended of Furzes growing Quaerens nil capiat per breve Ram versus Lamley Norff. RAm brought an action upon the case against Lamley and declared That wheras he was Bonus legalis homo and free a suspitione feloniae the Defendant maliciously want to the Major of Linn and requested a Warrant of him being a Iustice of Peace against the Plaintiff for stealing his Ropes The Major said to him Be advised and look what you do the Defendant said to the Major Sir Words I will charge him with flat Felony for stealing my Ropes from my Shop Quorum quidem verborum c. And after Not guilty pleaded and Verdict for the Plaintiff Hitcham moved in Arrest of Iudgment And the Court unanimously resolved that these words being spoken to the Iustice of Peace when he came for his Warrant which was lawfull would not maintain an action for if they should no other would come to a Iustice to make complaint and to inform him of any Felony Quaerens nil capiat per breve Mich. 8 Car. Lamb versus West Trin. 8 Car. Rot. 333. SIr John Lamb Knight brought Replevin against Thomas West and count Replevin that the Defendant took his Beasts at Blisworth in quodam loco vocat Thorny Close The Defendant avowed as Bayliff to Sir William Sheapherd and derived Title by a Lease to Michael West for ninety years if he and Thomas West the Defendant Demand of Rent and one Hutton West should so long live And the said Michael 19. Aprilis An 20 Jac. granted a Rent-charge of ten pounds per annum to the said William Shepheard and his Executors out of the place in which c. for the residue of his Tearm to be paid at the house of Thomas West in S. And the said Mich. granted that if the Rent he arrear by eight and twenty daies being lawfully demanded at the said house he should forfeit twenty shillings for every day that it should he arrear and if it be arrear by six months being lawfully demanded at the said house then he might distrain for that and the Nomine poenae And for Rent arrear by a year after demand due c. he makes Conuzance And therupon the Plaintiff demurred generalls And after many Arguments at Bar the Iustices delivered shortly their opinions severally and all argued that it is a Rent-charge and then a Distresse is incident to a Rent-charge which is in its creation a Rent-charge as well as if one makes a Lease for life or years rendring Rent and if it be lawfully demanded then it shall be lawfull to distrain for it None will deny but that he may distrain for this Rent without any demand And the diversity is between a Penalty and a Rent for if the Avowry had been for any part of the Nomine poenae then without actuall demand at the day he could not have distrained therfore vide Maunds case Coke lib 7. fol 28. And all agreed that when a Distresse is for Homage if it be once tendred and refused he cannot distrain without demand vide Litt 34. 21 E 4. 6. 16 17. 7. E 4. 4. That where a Rent is reserved upon a Lease and an Obligation to pay it yet that alters not the nature of the Rent 22 H 6. a good case Rent is reserved upon a Lease and an Obligation to perform Covenants that extends not to the Rent reserved but if it be to pay the Rent then it shall be demanded there it is said that if Rent be tendred and refused the Lord or Lessor may distrain without demand It was agreed that