Selected quad for the lemma: lord_n
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A26658
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Select cases in B.R. 22, 23, & 24 Car. I Regis reported by John Aleyn ... ; with tables of the names of the cases and of the matters therein contained, also of the names of the learned councel who argued the same.
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England and Wales. Court of King's Bench.; Aleyn, John.
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1681
(1681)
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Wing A920; ESTC R19235
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80,917
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114
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Statute of 27 H. 8. which reduces the possession to the Vse recites that by conveyances to Vse the King lost his escheats and purchases of Aliens c. l. 1. 124. a. Now Trusts being of the same nature at this day they are ruled according as Vses were at the Common Law and therefore if a Woman conveys a term in Trust for her self and takes Husband and dies he shall not have the Trust by survivorship but the Administrators of the Wife should have it 4. Inst 87. a. Witham's Case But Roll said that it hath béen since resolved that the Husband shall have it in that case And Mainard said that the Alien himself had no remedy in equity for the Vse at Common Law nor for a Trust at this day for he could not compell the Feoffees to execute it 2. If the King should have the Trust yet he cannot seise the Land by Law for the Alien himself had not that power his remedy if he should have any was only in the Chancery 3. The Land it self being Copyhold the King cannot have it 1. Because it is not transferrable by act in Law without the concurrence of the Lord for the prejudice that may accrue to him in losing his Fine c. 2. Because the King cannot perform the services incident to the Tenure and yet in default thereof the L. could not take advantage of the forfeiture as against the King 3. It would be an injury to strangers that should have right to the Copyhold for the King is not to be impleded in the Lords Court where only remedy is to be taken 4. The Estate is too base for the King to hold On the contrary it was said 1. That the King should have had a Vse limited to an Alien at the Common Law and by the same reason that he was to have the Land purchased by Aliens viz. That the Realm should not be impoverished by strangers and Vses at the Common Law were not properly things in action but Inheritances descendible by the rules of the Common Law and would have passed by grant or devise by the name of Hereditaments as Hale said And he said that the preamble of the Statute of 27 H. 8. is not to be intended as though the King should not have remedy for the profits when the Vse was discovered but that the Lands were so craftily conveyed that the Vse could not be discovered Now the case is the same of a Trust 2. The King be virtue of this Trust may seise the Land for though the profits only are given him by the Trust yet he hath not any direct means to be satisfied of those profits unless he may seise the Land And therefore 5 H. 5. 3. where a Manor with an advowson appendant was granted to the use of one who was after outlawed and upon an avoidance the King brought a Quare impedit and had a Writ to the Bishop And Hales said that 19 Jac. in Sir John Dacke's Case in Scaccar ' to whom the King granted a term to the use of the Lord who was attainted of Felony upon great deliberation with all the Iudges it was resolved and accordingly decréed that the Trust should be forfeited to the King and the interest of Sir John also 3. Now that the Estate of the Copyholder is fixed by the Custome there is the same reason for that as for any other Inheritance And this Term the Court took an exception to the Commission which was only to enquire what Lands c. the Alien had but no Capias in manus in it and therefore it was resolved that the seisure was unduly made and therefore they did not openly declare their opinion upon the matter in Law But Bacon said that an Alien at the Common Law could not compell the Feoffees to execute an Vse And Roll said that though the King should have the Vse yet he could not seise the Land it self by Law but by equity he might have a Decrée for the Land and so was Sir John Dack's Case And the Court doubted what Iudgment should be given the Verdict being found for the King And the rule was that cesset intratio judicii c. for they held that they could not give any Iudgment but afterward Termino Paschae 24 Car. the opinion of the Court being changed they directed the Case should be argued And Hale argued for the King that no Iudgment could be given against him because the Record of the Inquisition is still remaining in the Chancery and this Court hath no power to procéed but only to trial of the Issue and upon the Verdict for the very Record as to that is in this Court and yet he said that the Record after the Trial hath béen remanded into the Chancery and Iudgment given there but the tenour only of the Inquisition is here as appears by the Entry c. but if it had béen brought in per manus proprias of the Kéeper of the Great Seal then the whole Record had béen here and so Iudgment should have béen given upon the whole Record And he took this difference that when the tenour of a Record being removed the Court where the Original Record resides cannot proceed then the Court where the tenour is may procéed upon the tenour And therefore if the tenour of a Fine be certified upon a Certiorari out of the Tower or Treasury into the Chancery and sent into the Common Pleas by Mittimus Execution may be awarded there upon the tenour 39 H. 6. 4. a. So if the tenour of a Iudgment in a Writ of Annuity be certified out of the rescript in the Common Pleas into the Chancery and sent thither by Mittimus they may award execution there upon the tenour 34 H. 6. 2. d. because in those cases there are no other Iustices that can proceed upon the Record it self but where the Iudges where the very Record resides may procéed thereupon notwithstanding any tenour certified in such cases there can be no proceeding upon the tenour As if the tenour of a Iudgment in ancient demesn be certified in Chancery and sent by Mittimus into the Common Pleas no Scire facias lieth thereupon because the Court of Ancient Demesn may still procéed to execution upon the Record it self 39 H. 6. 3. h. c. So in our case the Chancery may still procéed to seisure upon the Inquisition affirming it to be good 14 E. 4. 7. a. And therefore this Court cannot procéed upon the tenour of it for thence might ensue a clashing of the Courts the one affirming it and the other quashing it and for these reasons he prayed that the former rule might stand But it was answered by Maynard and resolved by the Court that Iudgment ought to be given against the King because the whole Record is virtually here otherwise they should be bound up to the Verdict so that Iudgment should be given according to that though it appear upon the whole Record that the King had no
Action because they imply an act done And Roll said that where one said Where is that long lock't shagg-hair'd murdering Rogue And a stranger asked him who do you mean He said Greene of Fauseet the words were judged actionable so he said where one said Bring home the Cushion you stole the words were adjudged actionable But the Iudgment was stayed for further advice Dent versus Scott Trin. 22 Car. Rot. 1151. IN an Action of the Case upon an Indebitatus Assumpsit for Wares it was found by special Verdict Acc'on sur Case that the Wares were sold to the Defendants Wife for convenient Apparel which she wore and if c. And the Opinion of the Court was clear for the Plaintiff for the Wife may charge the Husband for Necessaries as Apparel Dyet and Lodging in case that the Husband doth not provide them for her But if the Husband allow a stipend to the Wife for these things and it be paid her then they held she could not charge him And Roll said that this was endeavoured to be proved at the trial and because it could not he would have had the Iury found generally for the Plaintiff And Bacon said that he and the other Iudges have lately certified the Lords in Parliament accordingly but for a flaw in the Declaration which was in considerat ' quod venderet deliberaret and no averment of any sale or delivery Iudgment was given against the Plaintiff because the Declaration was insufficient and so entered Note also that the promise in this Case is laid to be made by the Husband and the sale and delivery made to him but then it must be deliberasset for if it were in consideration quod venderet deliberaret to him then it may be questioned whether a Sale and Delivery to the Wife would make good the averment Dunsh versus Smith Hil. 23 Car. Rot. 37. IN an Action of Debt Debt brought by an Executor for the arrears of a Rent-charge upon the Statute of 32 H. 8. The Plaintiff declares that the Defendant in the life of the Testator did enter into the Land out of which the Rent was issuing and occupied it and took the profits thereof by the space of five years and demands the arrears of the Rent for the time And after a Verdict for the Plaintiff Mainard moved that the Action will not lye for the arrears against the Occupiers for the Statute gives it against the Tenants of the Land To which Hale answered That at the Common Law the Action lay against him that took the profits of the Land and against the Husband that was seized in right of his Wife C. 4. f. 49. 2. That this Action is given in lieu of a Distress and the Beasts of the Occupiers were chargeable to the Distress 3. That it would be convenient that the Plaintiff should be compelled to inquire out in whom the Estate was of right But Iudgment was stayed And Roll doubte◠of the Case but inclined against the Plaintiff Pasc 24 Car. B. R. Harvy versus Thorne Pasc 24 Car. Rot. 472. IN an Action upon the Case Case against an Executor the Plaintiff declares that upon a treaty of a Marriage it was agréed betwéen the Plaintiff and the Testator that he should pay to the Plaintiff 100 li. and whilst that should be unpaid he should pay the Plaintiff 10 li. per Annum which Agréement was made Anno 1618. And the Action was brought for all the arrears by the space of 28 years The Defendant pleaded the Statute of Limitations whereupon the Plaintiff demurred And upon the motion of Hale who advised the Attorney to bring the Action for all the arrears that it appeared that all could not be barred by the Statute Iudgment was given for the Plaintiff no Counsel being retained in the Cause for the Defendant Loder versus Hampshire IN Debt Debt upon a singel Bill of 50 li. the Defendant after Imparlance pleaded That after the last continuance the Defendant had paid the Plaintiff 5 li. parcel of the 50 li. and demanded Iudgment of the Bill Whereupon the Plaintiff demurred and because the Defendant did not alledge that he had an Acquittance which he ought to produce At the motion of Earle Iudgment was given against the Defendant that he should answer over c. C. 5 E. 4. 139. a. Dod versus Robinson Trin. 23 Car. Rot. SLander Slander The Plaintiff declares that the last of March 13 Car. he was Instituted and Inducted into a Parsonage in Ireland and executed the Office of a Pastor in that Church by the space of four years after and the Defendant said of him He was a Drunkard a Whoremaster a common Swearer and a common Lyar and hath preached false Doctrine and deserves to be degraded And after a Verdict for the Plaintiff it was moved by Hale in arrest of Iudgment 1. That the words in themselves are not actionable because the Crimes charged impute no Civil or Temporal damage to the Plaintiff for which he may have Action But the Opinion of the Court was clear for the Plaintiff in that point for that the matters charged are good cause to have him degraded whereby he should lose his Fréehold which is a temporal damage to him Then it was objected That he did not lay that he was Parson when the words were spoken To which it was answered by the Court That it should be intended he continued Parson because he had a Fréehold in the Parsonage during his life But it was further urged That inasmuch as he hath laid a special time during which he exercised the Office of a Pastor it shall not be intended that he continued so longer then himself hath laid it And of this the Court doubted but inclined for the Plaintiff Morefield Webb Pasc 23 Car. Rot. 51. Acc'on fur Case IN a Writ of Error upon Iudgment in the Palace Court at Westminster In an Action upon the Case upon a Promise and a Verdict for the Plaintiff It was moved for Error that the Habeas Corpora Jurator̄ was not returned served but that there was a Pannel of the Names of the Iurors annexed to it which Case is aided by the Statute of 21 Jac. which aids when there is not any return upon the Writs of Ven. Fac. Hab. Corpora et Distring so as a Panel of the Names of the Iurors be returned and annexed to the said Writs And two Objections were made 1. That this Statute extends only to such by Writ and in this Court it is by Precept and not by Writ 2. It appears that this Court was erected by Letters Patents 6 Car. which was after the Statute But it was resolved 1. That it is within the Intention of the Statute which doth provide amendment in any Action Suit Plaint Bill or Demand And Roll said that it is questionable if this Statute extends to the Grand Sessions in Wales and Iustice Jones was angry that it was made a Question