to Charles late Lord Sturton Father to the said Iohn Lord Sturton and the said Charles Lord Sturton disseised the said Lady Sturton and levied a Fine of the said Land to Cottington and his Heirs with Proclamations according to the Statute and warranted it against him and his Heirs And the said Lord Charles dyed before the Proclamations past and the Warranty descended upon the said John Lord Sturton after which and before the Proclamations past the said Lady Sturton entred upon the said Cottington after which the said Lady died and after her death and all the Proclamations past the said John Lord Sturton as Heir in Tail entred and made the Lease to the said Okes upon whom Cottington the Defendant entred as under the right of the said Cottington the Conusee And I perceiving the Court strongly to incline upon the matter of Warranty that it shall bar the entry of the Heir and make a discontinuance against him according to the inference which is taken by Littleton in his Chapter of Discontinuance because the truth was and so acknowledged to the Court although it were omitted in the Verdict that the said Charles Lord Sturton was attained of Felony and Murther and so the blood corrupted between the said Charles and John Lord Sturton wherby in a new Action the Garranty had not hurt the Title of the said Lord John I then moved the Court upon the other point of the Fine with Proclamations and the Court also agreed in this point if the Warranty had not been that yet the Fine with Proclamations shall bar the said John Lord Sturton notwithstanding the entry made by the Lady Sturton were before the Proclamations past because that notwithstanding his regresse made the Reversion remains in Cottington not defeated by his regresse in respect of the Statute whch makes that the Fine remains effectuall against the Heir in Tail if nothing be done by him to undo it before the Proclamations past as by claim regresse and the like but the Act of a stranger shall not help him wherby Iudgment being therupon given against the said Okes the said John Lord Sturton stood satisfied and the Cottingtons enjoy the Land to this day wheras if this opinion of the Court had not been on a new Action the said Sir John might have been relieved against the Warranty And Gaudy said that this was a very good Case for the point upon the Statute in this case Earl of Shrewsbury versus Sir Thomas Stanhop 8. GIlbert Earl of Shrewsbury brought a Scandalum Magnatum against Gilbert Earle of Shrewsbury against Sir Thomas Stanhop in a Scandalum Magnatum Sir Thomas Stanhop Knight and it was upon the Statute Tam pro Domina Regina quam pro seipso c. For that communication was had between the said Sir Thomas and one Francis Fletcher of divers things touching the said Earl the said Francis at such a day and place said to the said Thomas My Lord the said Earl meaning is a Subject innuendo that the said Earl was a Subject of the now Queen the said Sir Thomas then and there said of the said Earl these slanderous words to wit he intending the said Earl is sorry for that meaning that the said Earl was sorry that he was then a Subject to our said Soveraign Lady the Queen that is his grief meaning that it was grief to the said Earl that the said Earl was Subjâ—ct to the Queen to the damage of the said Earl of 20000 l. To which the said Sir Thomas Stanhop said that a question was formerly moved between the said Earl and the Defendant touching the subversion and drawing away of certain Weares heretofore erected by the said Sir Thomas at Shelâ—ord in the said County of Nott. where the Action was brought to oust the River of Trent there that for the subversion therof a Petition was exhibited to the privy Councell of the Queen before the speaking of the said words by certain Inhabitants of the County of Lincoln and divers other places not known to the Defendant with the privity allowance and knowledge of the said Earl which Petition at the time of the speaking of the said words depended before the said Councell not determined wherupon at the day and place comprised in the Declaration there was Communication between the said Defendant and the said Francis Fletcher concerning their purpose to have the said Wears subverted and touching the said Petition upon which the said Francis said to the said Defendant the matter meaning the Petition aforesaid hanging undetermined before the Councell aforesaid is to be heard before the privy Councel meaning the aforesaid Councell of the Queen and what their Honours meaning the Councell aforesaid determine my Lord the aforesaid Earl meaning will willingly obey To which the said Francis then there answered saying My Lord the aforesaid Earl meaning is a Subject upon which the said Defendant they then having speech as well of the said Petition as of the order therupon to be taken by the said Councell answered saying the words comprised in the Declaration meaning that he was sorry and grieved that he was subject to the order to be made upon the Petition aforesaid by the said Councell and averred that this was the same speech upon which the Action was grounded upon which it was demurred in Law and for cause shewn according to the Statute it was alledged that the bar was defective because it is not alledged at what place nor by whom nor against whom the Petition was exhibited and also because that by the Bar the matter of the Declaration is not confessed avoided or traversed and also that the Bar was insufficient And it seemed to Fennor that the matter of the Bar had been sufficient if it had been well pleaded but the Plaintiff alledgeth the words to be spoken in one sence in the Affirmative and the Defendant shews matter also in the Affirmative which proves the words to be spoken in another sence then the Declaration imporrs and two Affirmatives can never make a good Issue and therfore the Defendant ought to have taken a traverse to that which is comprised in the Declaration and for want of this traverse the plea in Bar is not good Gawdy said that the Bar is not sufficient neither in matter nor form not in matter because that wheras Fletcher said that the said Earl was a Subject this can have no other sence but that he was a Subject to the Queen in his Allegiance and her Soveraignty and so much is drawn out of the course of their former speech and therfore the answer which the Defendant made to it refers to his subjection of alleagiance and not to the matter of obedience which he owed to the order of the said Councell and if it cannot have any other sence in good understanding he cannot help himself now by an Innuendo which is in it selfe according to common intendment contrary to that which the nature of the words
Harrison Erringtons case 202p Hebborns case 206p I JEne and Chesters case 151p Jenningâ— Maystâ—â—â— case 102b Jorden Ayliffs case 168b Jenkin and Vivians case 201p K. Kettle and Masons Case 50p King and Berys Case 57p Kellies Case 104p Kirton and Hoxtons case 115p The King and Brigs case 150p Kebles case 18â—b Knights case 187b King Merricks case 2o L Lee and Browns case 128p Lewes and Jeofferies case 153p Lemasons and Dicksons case 189p Laurking and Wylds case 126p Leechford and Saunders case 194b Liverel and Rivets case 206b Lathams case 210b M MIchels case 8b Morgans case 52p Morgan and Tadcastles case 55p Montague and Jeofferies case 108p Mounson and Wests case 110p May and Kets case 129p Middletons case 131p May and Samuels case 134p Mingies case 135p Sir Arthur Mannarings case 145p Morley and Sir Richard Molineuxs case 1â—5p Millen and Fandries case 161p March and Fandries case 161p March and Newmans case 163p Mayor of Maidstons case 180p Mills and Parsons case 199b O OAks and the Lord Sturtonrs case 65b Overton and Sydalls case 120p Old and Estgreens case 160b Owen Wards case 187b P PIgots case 94p Porramor and Veralds case 101p Pollard and Lutterells case 108p Sir John Pools case 128p Powels case 139p Pack and Metholds case 160p Probe and Maynes case 192b Petit and Robinsons case 203p Ployden and Symes case 205p R ROper and Ropers case 106b Robinson Walkers case 127p Rawlinson and Greens case 127p Rones case 133p Richardson and Cabells case 142p Sir George Reynalds case 165p Ryman and Bickleys case 129p Reynor and Hallets case 187p Rochester and Rickhouse case 203p Rosse and Harvies case 206b Risley and Hains case 209p S STocks case 37p Smiths case 53p Southwell and Wards case 91p Sawyer and Hardies case 99p Stainings case 102p Scot and Mainys case 109p Strowd and Wyllis case 114p Southern and Howes case 143p Silvesters case 148p Stone and Withipoles case 152p Sary and Pigots case 166p Sharp and Rasts case 181p Snaggs case 187b Sherry and Richardsons case 15p Smithers case 169b Scheverel Dales case 193p Sanders Meritors case 200p Staple Kings case 206b Savile Wortleys case 207p Sparman Sherwoods case 222p T THompson Traffords case 8p Taunton Raries case 106p Tailours case 133p Thurman Coopers case 188p Talbot and Sir Walters Lacens case 146p Turner and Dennis case 169 V VAughans case 134p W WOod and Downings case 10p Webly and Skinners case 85p Wood and Matthews case 102p Westcot and Cottons case 130p Wrenhams case 135p Wootton and Byes case 136p Wards case 144p Webb and Paternosters case 151p Westermans case 151p Wales case 160p Welden and Bâ—sies case  Wicks case 186b Williams and Vaughans case 186b Willers case 197b Whelhorseys case 208p Woodroof and Vaughans case 210q CASES Reported by S R. JOHN POPHAM Knight Lord chief Justice of ENGLAND In the time of Queen ELIZABETH and written with his own hand in French and now faithfully done into English to which are added some remarkable CASES Reported by other Learned and Judicious Pens since his death Fenner versus Fisher Mich. 34. and 35. Eliz. Reginae in the Kings Bench IN Trespasse brought by Iustice Fenner against Andrew Fisher for a Trespasse done in the Parsonage house of Cravfords in the County of Kent 30. Maij 34. of the Queen the Defendant pleaded that one 〈…〉 was seised of the same Messuage in his Demesne as of see and being so seised the 〈…〉 day of in the same year did demise it to the Defendant for two years from such a Feast then last past by virtue of which he entred and was possessed untill the Plaintiff claiming by colour of a Deed made of the sayd Wrighâ— where nothing passed by the Deed upon which the Defendant entred c. The Plaintiff replies by protestation that the sayd Wrighâ— was not seised as the Defendant hath alledged And for Plea saith that the sayd Wright did not let it to the Defendant as the Defendant hath alledged upon which being at Issue and found for the Plaintif Ackinson moved that Iudgment ought not to be given for the plaintiff because that he hath not made any Title by his Replication for by 9 E. 4. 49. In Trespasse the Defendant pleads in Bar and gives colour to the Plaintiff it is taken for a Rule that the Plaintiff ought to make Title Cook answered that he needs not to make Title in this case but that it sufficeth to traverse the Bar without making a Title and sayd that in 22 E. 4. Fitzh Trespass It is adjudged that in Trespasse the Plaintiff may traverse the Bar without making Title in his Replication and here in as much as it is acknowledged by the Defendant that Wright did demise it to the Plaintiff and that this is a Lease ta will at the least not defeated by his own shewing but by the Lease made to Defendant this being traversed and found against the Defendant The Plaintiff by the acknowledgment of the Defendant himself hath a good Title against him to enter into the Land and by it the Defendant by his Re-entry is become Trespassâ—â— to the Plaintiff and he sayd that in 2 E. 4. fol. In Trespasse where the Defendant pleads that he let the Land to the Plaintiff for another mans life and that he for whose life it was was dead upon which he entred and it is adjudged that it sufficeth for the Plaintiff to maintain that Cestuy vie was yet living without making any other Title And yet these reasons Cleoch and Gawdy held the Replication good to which Popham sayd that we as Iustices ought not to adjudge for the Plaintif where a good formall bar is pleaded as here it is But wherby the Record it self which is before us we cannot see that the Plaintiff hath good cause of Action And therefore I agree that in Trespasse in some cases the Plaintiff may traverse the Bar or part of it without making any other Title then that which is acknowledged to the Plaintiff by the Bar but this alwaies ought to be where a Title is acknowledged to the Plaintiff by the Bar and by another means destroy by the same Bar for there it sufficeth the Plaintiff to traverse that part of the Bar which goeth to the destruction of the Title of the Plaintiff comprised in the Bar without making any other Title but if hee will traverse any other part of the Bar he cannot do it without making an especiall Title to himself in his Replication where by the Bar the first possession appeareth to be in the Defendant because that although the Traverse there be found for the Plaintiff yet notwithstanding by the Record in such a Case the first Possessions will yet appear to be in the Defendant which sufficeth to maintain his Regresse upon the Plaintiff and therefore the Court hath no matter before them in such a Case to adjudge for the Plaintiff unlesse in cases
to attend and be assistant to the Iustices Sheriffs or other Ministers of the King in the doing of it 3. AT the same time it was also resolved by them all except Walmsley Fennor and Owen in the Case of one Richard Bradshaw and Robert Burton who with others lately by word entred themselves into an agreement one with another to rise and put themselves into Armes and so to go from one Gentlemans house to another and so from house to house to pull down Inclosures generally that this so appearing by their own confession or by two Witnesses according to the Statute is high Treason by the Statute of 13 Eliz. cap. 1. The words of which Statute are That if any intend to levy War against the Queen and this maliciously advisedly and expresly declare or utter by any words or sayings that this shall be high Treason For all agreed that Rebellion of Subjects against the Queen hath Rebellion of Subjects high Treason been alwaies high Treason at the Common Law for the Statute of 25 E. 3. cap. 1. is that levying of War within the Realm against the King is Treason and Rebellion is all the War which a Subject can make against the King But Walmsley and the others with him said that the Statute of 1 Mar cap. 12. 10. That if any to the number of twelve or more assemble themselves to the intent to pull down Inclosures Pales and the like with force and continuing together after proclamation according to the Statute to go away by the space of an hour or do any of the Offences mentioned in the Statute that this is Felony So that if these Actions had been Treason at the Common Law it had been to no purpose to have made it Felony And it seemed to them that the resistance ought to be with force to the Queen before that such Acts shall be said Treason But all the other Iustices agreed and so it was put in ure lately in the case of the Prentices of London that if any assemble themselves with force to alter the Laws or to set a price upon Victualls or to lay violent hands upon the Magistrate as upon the Major of London and the like and with force attempt to put it in action that this is Rebellion and Treason at Common Law and yet this Statute of 1 Mariae makes it in such a case but Felony And they put a diversity between the cases of pulling down Inclosures Pales c. comprised in the Statute of 1 Mar. for those are to be understood where diverse to the number of twelve or more pretending any or all of them to be injured in particular as by reason of their common or other Interest in the Land inclosed and the like and assembling to pull it down forcibly and not to the cases where they have a generall dislike to all manner of Inclosures and therfore the assembling in a forcible manner and with Armes to pull them down where they have any Interest wherby they were in any particular to be annoyed or grieved is not Treason but the case here tending to a generality makes the act if it had been executed to be high Treason by the câ—uâ—se of the Common Law And therfore the intention appearing as the case is here it is Treason by the Stâ—tute of 13. aforesaid Periam in some manner doubted of the principall case but to intend to rise with force to alter the Laws to set price upon any Victuals or to use force against a Magistrate for executing his Office of Iustice and the like he said that they were cleerly Treason by the Statute of 13. aforesaid if it may appear by expresse words or otherwise as the said Statute mentions for all these tend against the Queen her Crown and Dignity and therfore shall be as against the Queen her self And if it had been put in practice it had been Treason at the Common Law Here ends the LORD POPHAM'S REPORTS An addition of certain Select CASES in the time of KING JAMES and KING CHARLES Trin. 15. Jac. In the Kings Bench entred Hill Jac. Rot. 194. Brooks Case IN an Ejectione firmae brough by one Brook against Brook the Case was thus Iohn Wright a Copyholder in Fee 10 Eliz. surrendred his Land into the hands of the Lord by the hands of Tenants according to the Custom c. without saying to whose use the Surrender should be And at the next Court the said Iohn Wright was admitted Habendum to him and his Wife in Tail the remainder to the right Heirs of Iohn Wright and the Wife of Iohn Wright now Defendant was seised from the time of Where upon surrender of Copyhold land no use is limited to whole use iâ— shall be the admittance untill this day And it was objected by the Counsell of the Plaintiff that the surrender was void because no use was limitted and therfore by constitution of Law ought to be to the use of the Surrender as if a Feoffment be made and no Use limited it shall be to the Use of the Feoffor or as it is in Sir Edward Cleers Case Coke lib. 6. 18. If a Feoffment be made by one to the use of his last Will he hath the use in the mean time 2. That the admittance was not available to passe an Estate to the Wife for she was not named in the Premisses but only in the Habendum and the Office of an Habendum is to limit the Estate and not the person and therfore it is said in Throgmorten and Tracies Case in Plowd com That if one be named to take an Estate in the Habendum where he was not named at all in the Premisses this is not good But it was resolved by the whole Court for the first point that the subsequent Act shâ—ll explain the Surrender for Quando abest Provisio partis adest provisio legis And when the Copyholder accepts a new admittance the Law intends that the Surrender generally made was to such an Vse as is specified in the admittance and the Lord is only as an Instrument to convey the Estate and as it were put in trust to make such an admittance â—s he who surrenders would hâ—ve him to make And Crook Iustice said Fides adhibita fidem obligat For the second point it was also agreed by the Court that the Wife shall take by this admittance albeit she were not named in the Premisses but only in the Habendum and they agreed that in Feoffments and Grants the party that is not named in the Premisses shall not take by the Habendum and therfore Throgmorton and Tracies Case as to this point is good Law But this case of a Copyhold is like to the case of a Will or to the case of Frank-marriage in which it is sufficient to passe an Estate albeit the party be only named in the Habendum and if it should be otherwise the Estates of many Copyholders would be subverted And so they resolved that Iudg-should be
REPORTS AND CASES COLLECTED BY THE LEARNED SIR JOHN POPHAM KNIGHT Late LORD CHIEF-JUSTICE OF ENGLAND Written with his own hand in French and novv faithfully Translated into English To which are added some Remarkable CASES Reported by other Learned Pens since his death With an Alphabeticall Table wherein may be found the Principall Matters contained in this Booke LONDON Printed by Tho Roycroft for John Place and are to be sold at his Shop at Furnivals Inne Gate in Holborn 1656. TO THE READER Courteous Reader ALbeit the name of the Compiler of the greatest part of the ensuing REPORTS for Denominatio fit a parte majori meliori would be a sufficient invitation to any understanding Reader not only to cast his Eye upon but seriously to peruse them yet because these two Questions may and no doubt will and that upon good ground be made as 1. Why they should lye so long in private hands vvithout being exposed to the publique vievv 2. Why they should be now Printed To the first I answer That by the handsome composure and connexion of them it may and that very probably be conjectured that the honourable Compiler at first intended them for the publique but they after his death comming into private hands they who became possessors of them did rather intend their owne and their friends private knowledge and advantage by them then to let others communicate therein for it hath not formerly been neither yet is a thing unusuall for the great and learned Professors of the Law to ingrosse into their owne hands the best and most authentick REPORTS for their better help credit and advantage in the course of their practise which being unknown to other men they cannot upon sudden occasions be ready to make answer thereunto and that might be the reason why they have not been as yet published To the second I answer that the Copy out of which this Translation was made comming out of the Library of a reverend and Learned Sergeant at Law now deceased and said therin to be written with the proper hand-writing of the Lord POPHAM a good ground to conceive that it was Authentick the Gentleman in whose hands it was was earnestly importuned for the Copy that so it might be made publique to whose importunity there was at last a condâ—ssention so as such due care might be taken both in the Translation and Printing as not to prejudice the Author or the matter therein contained And whether that condition be fully performed shall be now left to the candid interpretation of the judicious Reader who cannot but know that some Errata's let the Printer or Correcter be never so carefull will follow the Presse but it is hoped that nothing materiall or substantiall is committed or omitted to the prejudice of the Work or of the Compiler thereof There is an addition of some later Cases in the time of King JAMES and the late King CHARLES which were taken by judicious Pens as will evidently appear by the Cases themselves and I dare say that whoever reads them will neither think his Time or Money mispent they being such as are well digested and very practicall I shall adde this one thing more that the principall end of this Edition is the advancement of knovvledge and to impart the good thereof to those who heretofore vvanted vvhat is hereby made publick vvhich may peradventure be a means to invite others more learned to publish other things of the like nature for the benefit of Students and Professors of the Lavv. THE NAMES OF THE PRINCIPALL CASES and other CASES vouched in this BOOKE P. Stands for Principall Case B. Stands for Avouched Case A Â fol. ARton and Hares case 97p Arthur Johnsons case 106p Austins case 183b Arnold and Dichtons case 183p Austen and Monks case 186p Audâ—ey and Joices case 176b Abbingtons case 196b Arrunstels case 201b B LOrd Burleighs case 26b Bullock and Diblers case 38p Burtons and Wrightmans case 56p Baynes case 84p Butler and Bakers case 87p Burtons case 100p Baskervill and Brooks case 132p Brett and Cumberlands case 136p Bennet and Westbechs case 137p Sir Baptist Hixe case 130p Bernard and Beales case 146p Brabin and Tradurus case 140p Blaxton and Heaths case 145p Sir John Bingleys case 147p Bowyer and Rivets case 153p Bowry and Wallingtons case 159p Block and Harris case 168b Brole and Michels case 173b Bidles case 179b Sir William Burtons case 180p Beven and Cowlings case 183p Barker and Ringroses case 184p Buffeild and Byburos case 188p Brokesbyes case 189b Brookes case 125p Sir Robert Browne and Sir Robert Strowds case 198p Bell and Stranguryes case 203b Bagnols case 206p C CRocker and Dormars case 22p Caesar and Curtines case 35p Callard and Callards case 47p Cawdry and Attons case 59p Case of Armes 1â—1p Cowper and Smiths case 128p Lord Chandos and Scullers case 145b Constable and Cloberys case 161p Challoner and Mores case 167b Chamberlains case 185b Calf and Neiols case 185p Cadmor and Hildersons case 186b Chambers case 202p Crab and Tookers case 204p Caryes case 207p D DAcres and Culpeppers case 19b Davies and Gardiners case 36p Dillon and Fraines case 70p Dabridgcourts case 85b Dickenson and Greenhows case 156p Day and Drakes case 170b Dabborn and Martins case 177p Drope and Theyars case 178p Dickar and Molands case 200p Desmond and Johnsons case 201b E EArl of Bedfords case against Russell 3p Sir Francis Englesfields case 18p Edwards and Halinders case 46p Earl of Shrewsbury and Sir Tho. Stanhops case 66p Eton and Monnys case 98p Everets case 107p Earl of Pembroke against Sir Henry Barkley 116p Earl of Shrewsburys case 132p Earl of Northumberland and Dewels case 141p Empson and Bathirsts case 176b F FEnner and Fishers case 1p Sir Moile Finches case 2â—p Forth and Halboroughs case 39p Finch and Riseleys case 53p Sir Moile Finch and Frogmortons case 53b Fulwood and Wards case 86p Fennors case 109p Fulcher and Griffins case 140p Foster and Taylors case 196p G GIbbons and Maltyards case 6p Gravener and Brookes case 32p Geilles and Rigewayes case 41p Greenhingham Heydons case 98p Goodale and Wyats case 99p Glover and Humbles case 120b Gouldwels case 131p Godfrey and Owens case 148p Gilbert and Hoptons case 152p Gores case 173b Goodwin and Willoughbys case 177p Giffords case 186b Goldsmith and Goodwyns case 186b Sir Henry Gemhams case 144p Goods case 211p H HUnt Gotelers case 5p Hayes Allens case 13p Haycock Warnfords case 24p Hughes Robothams case 30p Humble and Olivers case 55p Halâ— Pearts case 60p Harry and Farceys case 61p Sir Rowland Heywards case 95p Herbin Chards case 96p Hall Arrowsmiths case 105p Holme Gees case 112p Havengate Hares case 126. 147p Harlo Wards case 127b Hare Brickleys case 128b Hide and Whistlers case 146p Hodges and Mores case 164p Hemdon and Crowches case 167b Holcome and Evans case 169b Hobs and Tadcasters case 186b Hord Paramours case 201b Higgs case 201b
where the Plaintiff shews a speciall Title under the Possession of the Defendant As for example In trespasse for breaking of his Close the Defendant pleads that J. G. was seised of it in his Demesne as of fee and enfeoffed J. K. by virtue of which he was seised accordingly and so being seised enfeoffed the Defendant of it by which he was seised untill the Plaintiff claiming by calour of a Deed of Feoffment made by the sayd J. G. long before that he enfeoffed J. K. where nothing passed by the sayd Feoffment entred upon which the Defendant did re-enter here the Plaintiff may well traverse the Feoffment supposed to be made by the sayd J. G. to the sayd I. K. without making Title because that this Feoffment only destroies the Estate at will made by the sayd I. G. to the Plaintiff which being destroyed he cannot enter upon the Defendant albeit the Defendant cometh to the Land by Disseisin and not by the Feoffment of the sayd I. K. for the first Possession of the Defendant is a good Title in Trespasse against the Plaintiff if he cannot shew or maintain a Title Paramounâ— But the Feoffment of the sayd I. G. being traversed and found for him he hath by the acknowledgment of the Defendant himself a good Title against him by reason of the first Estate at will acknowledged by the Defendant to be to the Plaintiff and now not defeated But in the same case he cannot traverse the Feoffment supposed to be made to the sayd I. K. to the Defendant without an especiall Title made to himself for albeit that I. K. did not enfeoff the Defendant but that the Defendant disseised him or that he cometh to the Land by another means yet he hath a good Title against the Plaintiff by his first Possession not destroyed by any Title Paramount by any matter which appeareth by the Record upon which the Court is to adjudge and with this accord the opinion of 31 4. 1. That the materiall matter of the Bar ought alwaies to be traversed or other wise that which upon the pleading is become to be materiall and that which the Plaintiff traversed here to wit the Lease made by Wright to the Defendant is the materiall point of the Bar which destroyeth the Title Paramount acknowledged to the Plaintiff by the colour given in the Bar which is good without another Title made So note well the diversity where in pleading in Trespasse the first Possession is acknowledged in the Plaintiff by the Bar and where it appeareth by the pleading to be in the Defendant and where and by what matter the first Possession acknowledged in the Plaintiff by the Bar is avoided by the same Bar And upon this Iudgment was given for the Plaintiff as appeareth in 34. and 35. Eliz. Rol. Earl of Bedford versus Eliz. Anne Russell Mich. 34. and 35. Eliz. 2. IN tho Court of Wards the Case was thus between the now Earl of Bedford In the Court of Wards and Elizabeth and Anne the Daughters and Heirs of John late Lord Russell which was put ten times to all the Iustices to be resolved Francis late Earl of Bedford was seised of the Mannor of Baruake Chaldon c. in Commitatu Dorset in his Demesne as of see and so seised the fourth year of Queen Eliz. of it enfeoffed the Lord S. John of Bletsoe and others in see to the use of himself for forty years from the date of the sayd Deed and after to the use of the sayd John then his second Son and the Heirs Males of his body and for default of such Issue then to the use of the right Heirs of the sayd Earl the Feoffor for ever Afterwards Edward Lord Russell Son and Heir apparant to the sayd Earl dyed without Issue and after the sayd John Lord Russell dyed without Issue Male having Issue the sayd two Daughters afterwards to wit 27 Eliz. the sayd Francis Earl of Bedford by Indenture made between him and the Earl of Cumberland and others in consideration of the advancement of the Heirs Males of the body of the sayd Earl which by course of descent should or might succeed the sayd Earl in the name and dignity of the Earldome of Bedford and for the better establishment of his Lordships Mannors and Hereditaments in the name and blood of the sayd Earl covenanted and grantes with the sayd Covenantees that he and his Heirs hereafter shall stand seised of the sayd Mannors amongst others to the use of himself for life without impeachment of Waste and after his decease to the use of Francis the Lord Russell and the Heirs Males of his body for default of such Issue to the use of Sir William Russell Knight his youngest Son and the Heirs Males of his body with diverse Remainders over after which the sayd Francis Lord Russell tyed having Issue Edward the now Earl of Bedford and after this the sayd Francâ—s late Earl of Bedford dyed also and after the Daughters of the sayd John Lord Russell or the now Earl of Bedford shall have these Mannors of Barunke c. was the question and upon this it was argued by Cook Sollinton and others for the Daughters that an use at Common-law was but a confidence put in some to the benefit and behoof of others and that Conscience was to give remedy but for those for whose availe the confidence was and that was in this Case for the sayd Daughters which were the right Heirs to the sayd Francis late Earl of Bedford upon the first conveyance made 41 Eliz. for the confidence that he put in the Feoffees as to the profits that he himself was to have was but for the forty years and how can any other say that he shall have any other Estate when he himself saith that he will have it but for forty years and therefore in this case his right Heir shall take as a Purchasor by the intent of the Feoffor which hath power to make a disposition of the use at his pleasure and his pleasure as appeareth was to have it so and it is not as if the use had been limitted to be to himself for life with such a Remainder over in which Case the use of the Fee by the operation of Law ought to execuse in himself for the Free-hold which was in him before As where Land is given to one for life the Remainder to his right Heirs he hath a Fee-simple executed but here he shall have but an Estate for forty years precedent and that the Fee-simple cannot be executed by such a limitation made to the right Heirs but in case of an Estate for years only precedent such a limitation to his right Heirs afterwards is not good but in case of an use it is otherwise for it may remain to be executed to be an use in Esse where the right Heir shall be and therefore not to be resembled to an Estate made in Possession And an Vse is alwaies to be
be avoided and in the same manner here But Popham took a diversity where the Possession or the Estate of the Queen is determined and where not for where the Estate is determined there the Subject may enter into the Land without Office or ouster le main But where the Possession continues there the party shall not come to it unlesse by petition Monstrans de droit officio or the like and therfore hee said that if the Queen had an Estate pur auter vie or depending upon any other Limitation if it be determined according to the Limitation the party who hath interest may enter so in the case of the Devise put before And if a Lease be made for life the Remainder in Tail the Reversion in Fee and he in the Remainder in Tail levy a Fine Sur conusance de droit come ceo que il ad de son done to a stranger with proclamations according to the Statute and afterwards the stranger convey the Remainder to the Queen her Heirs and Successors and after the Tenant for life dies and after he in the Remainder in tail dies without Issue now may he in the Remainder in Fee enter because the Estate of the Queen is determined But here the Queen hath a Fee-simple in her self but determinable upon the Estate-tail which yet remaineth which Fee-simple in Reversion cannot be divested out of the possession of the Queen but by matter of Record of so high nature as it is in her to wit by Petition Monstrans de droit or the like As if a Reversson or Remainder be alienated in Mortmain the claim of the Lord sufficeth therâ— to vest the Reversion in the Lord for the Alienation but if the Reversion or Remainder of which such a claim was made be conveyed to the King his remedy is now by Office Monstrans de droit or Petition for claim will not now serve him for this shall be to divest the possession out of the Queen which by such means cannot be done no more then where a Reversion or Remainder is granted to the Queen upon Condition but he ought to have an Office to find the performance of it if it be to be performed by matter in pais and without Monstrans de droit or otherwise it shall not be divested out of the Queens possession yet in the case of a common person a claim will divest it out of them but not so of the Queen And these cases Gawdy agreed but he conceived that in the case in question the claim made determines the Estate of the Queen which is made by means of the Fine upon the Statute And Popham denied the case put in 7 H. 6. to be Law as it is put upon the opinion of Strange there for it is cleer that the claim there does not divest any possession which was in the King by means of the Wardship and if this be not therby defeated the claim does not help the Disseisee against the Descent and this appeareth fully by Littleton who saith so of a Claime which avoids a Descent to wit that it ought to be such upon which the Disseisee may upon every such Claim made have an Action of Trespasse or Assise against the Dissessor or him who is in possession if he continue his possession after such Claim made which cannot be in this case where the possession is in the King which cannot be defeated by such a Claim And in the Lord Dyer where the Feoffee or Mortgagee of Lands holden of the Queen in Capite by Knights Service died before the day of Redemption his Heir being within age wherby upon Office found the Queen had the Wardship of the body and land of the Heir after which the Mortgagee at the day of redemption made payment and of this also an Office was found yet he could not enter either before or after Office but upon Monstrans de droit therupon he had his Ouster le main And the reason why a Claim shall serve in this case between common persons is because that by such Claim the thing it self is devested out of him who had it before and therby actually vested in him who made the claim As where a Villain purchase a Reversion by the Claim of the Lord the Reversion is actually in him as it is of a Possession by Entry But where he is put to his Claim to devest any thing out of a common person he is put to his Suit to devest it out of the Queen Aad to say that Bret should not take advantage of this Conveyance made to make it good by the Fine I think the Law to be clear otherwise as to this point for the Statute of Fines was made tor the security of Purchasors and Possessors of Land and therfore taken more strongly against them who pretend Right or Title and for the greatest advantage that may be for the Possessors of Lands and therfore the Possessor by what ever means he can may make his Fine to be forceable And therfore the Fine upon this Statute differeth much from a Fine at Common Law for where at Common Law an Infent being a Disseisor was disseised by one who levies a Fine and the year and the day passe without claim of the first Disseisee now was the first Disseisee barred yet if afterwards the Infant who was not bound by the Fine enter the first Disseisee may enter upon him because that by this entry the Fine at Common Law was utterly defeated But now by the Statute such a Fine being levied with Proclamations the first Disseisee not pursuing according to the Statute is barred for ever And although the Infant enter at full age and undoes the Fine as to himself yet this Fine remains alwaies to bar the first Disseissee and makes that the Infant hath now Right against all the world and so now takes advantage therof And this is the intent of the Statute for the repose of Controversies and Suits and the quiet of the people And if I procure a Fine to be levied on purpose to bar another of his Action which he may have against me for the Land yet I shall take advantage of this Fine and the other shall have no advantage against me because of this Covin for if this should be admitted it will countervail the benefit which is intended to be by means of the Statute of Fines And if a Disseisor enfeoffee another upon Condition to the intent that a Fine with Proclamations shall be levied to the Feoffee to bar the Disseisee and after the Disseisee is barred the Disseisor enter for the Condition he shall yet take advantage of the Fine against the Disseisee And Popham put a case which was in this Court 23 Eliz. upon a speciall Verdict which was between Okes Plaintiff upon the Demise of John late Lord Sturton of Cottington which was this The Lord Sturton was Tenant for life of certain Lands in Lighe in the County of Somerset the remainder in Tail
the Assise in manner and form as the Writ supposeth And further that the said West therof disseised the said Mounson namely of the Tenements in the will of one Mounson And did not find either the words of the Will nor the Will it self what it was c. And the Iustices of Assise upon this Verdict upon advice with the other Iustices gave Iudgment that the Plaintiff shall recover c. upon which a Writ of Error was brought in the Kings Bench where it was moved that the Iudgment was erroneous First because the Iury have not found that the Defendant was Tenant of the Free-hold agreeing with the form of the Plea for the Writ of Assise doth not suppose him to be Tenant of the Free-hold and therfore the Verdict in this point not fully found The second Error is that the Seisin of the Plaintiff is not required of according to the charge given to them as well as the Disseisen for the charge was that they should enquire of the Seisen of the Plaintiff c. But to both these the Court answered that the Verdict is well enough notwithstanding these exceptions for every Assise brought supposeth that there is a Disseisor and a Tenant named in it then this Assise being brought against a sole person supposeth him to be a Disseisor and Tenant also and therfore the Verdict saying that he was Tenant as the Writ supposeth is now as strong in this case as if they had found that he was Tenant of the Free-hold for the Tenant of the Free-hold ought to be named in the Writ But if the Assise had been brought against two or more such a Verdict had not been good for it sufficeth if any of them be Tenant of the Freehold and then the Writ doth not suppose one to be Tenant more then another but supposeth one Tenant to be named in the Writ And therfore in such a case the finding ought to be speciall to wit that such a one is Tenant of the Free-hold or that there is a Tenant of the Free-hold named in the Writ But where one only is named in the Writ to be Disseisor and Tenant it is sufficient to find as here for by this it is certainly found that he is Tenant of the Free-hold And for the other point although it be a good direction for the Iudges to the Iury wherby they may the better perceive that there ought to be a Seisin in him or otherwise there cannot be a Disseisen by the other yet in Deed he cannot be a Disseised who was not then seised But the Assise having found the Disseisen the Seisen in Law is found included in the Disseisen But for the point moved that the Verdict was not perfect in as much as they found the Disseisen with a Nisi it seemed to Gawdy that the Iudgment upon this Verdict was erronious as where a Verdict in another Action is imperfect a Venire facias de novo shall be awarded to try the Issue again And if Iudgment be given upon such a Verdict it is error so here the Verdict in this point being incertain there ought to have been a Certificate of Assise to have this better opened But the three other Iustices held as the case is that the Verdict in this point is certain enough for that which cometh before the Nisi as it is placed is meerly nugator as in the case of the Lord Stafford against Sir Rowland Heyward the Iury found Non assumpsit but if such Witnesses say true as they believe they did Assumpsit c. it was but a meer nugation But it seemed to Popham that if the Verdict had been if the words of the Will do not passe the Land then that he disseised and if they passe then that he did not disseise there if the words of the Will be not found the Verdict had been all imperfect but here the Verdict is full and perfect before the Nisi c. and therfore the Iudgment was affirmed Holme versus Gee 8. A Formedon in Descender was brought by Ralph Holme Demandant against Henry Gee and Elizabeth his Wife Tenants and the Case wâ—s thus Ralph Langley and others gave two Messuages and a Garden with the Appurtenances in Manchester to Ralph Holme the great Grandfather of the Demandant and to the Heirs of his body begotten after which the same great Grand-father by Deed indented dated 20. September 14 H. 7. enfeoffed Iohn Gee of one of the said Messuages and of the said Garden rendring yearly to the said great Grand-father and his Heirs 13 s. 4 d. a year at the Feasts of S. Michael and the Annunciation by equal portions after which the said Iohn Gee died seised of the said Messuages and Garden and it descended to Henry Gee his Son and Heir after which the said great Grand-father by his Indenture bearing date 6. Martii 12 H. 8. enfeoffed the said Henry Gee of the other Messuages rendring also to him and his Heirs yearly 13 s. 4 d. at the said Feast aforesaid by equal portions after which Holme the great Grand-father died Stephen Holme being his Son and next Heir who was seised of the Rents aforesaid and afterwards also died seised Robert Holme being his Son and Heir after which the said Henry Gee died seised of the said two Messuages and Garden and they descended to Eliz. his Daughter and Heir who took to Husband one Richard Shalcroft and had Issue the said Elizabeth wife of the said Henry Gee Tenant in the Formedon after which the said Richard Shalcroft and his wife died after which and before the marriage had between the said Henry Gee and Elizabeth now Tenants in the Formedon the said Elizabeth enfeoffed one Richard Greensearch of the said Messuages and Garden after which to wit at the Feast of the Annunciation of our Lady 3 Eliz. the said Henry Gee husband to the said Elizabeth paid 13 s. 4 d. for the said Rent reserved as is aforesaid to the said Robert Holme after which to wit on Munday next after the Assumption of our Lady at Lancaster before the Justices there a Fine was levied with Proclamations according to the Statute between Thomas Aynsworth and Thomas Holden then being seised of the Tenements aforesaid Complainants and the said Henry Gee and Eliz. his wife Deforceants of the Tenements aforesaid wherby the Conusance was made to the said Thomas and Thomas who rendred them to the said Henry Gee and Eliz. his wife and to the Heirs of their bodies the Remainder to the right Heirs of the said Henry the five years past after the Proclamations in the life of the said Robert Holme after which the said Robert died and Ralph his Son and Heir brought the Formedon upon the Gift first mentioned and the Tenants plead the said Fine with Proclamations in Bar and the Demandant replyed shewing the severall discontinuances made by the great Grand-father as aforesaid and the acceptance of the said Rent by the said Robert by the hands of
Co. lib. 8. Baspoles case and 7 H. 6. 40. accordingly The same Term in the same Court Vaughans Case THomas Dedham had to Apprentice one Holland who got his Main with Child and afterwards departed from his Masters Service and staid a whole night with Vaughan his Kinsman and Dedham procured a Warrant from S. Stephen Soame a Iustice of Peace that the Constable should bring the said Apprentice to order according to Law and because that Vaughan perswaded him to withdraw himself so that he should not be taken by virtue of the Warrant he was indited And it was agreed that it was lawfull for Vaughan to lodge and relieve him albeit he knew his misdeeds they being no Treason or Felony But Haughton Iustice took exception to the Inditement because no place appeared where he perswaded him to withdraw himself from the Warrant or in truth that he did hide himself from the Warrant for if he did not so the perswasion was nothing And Doderidge took another exception to the Warrant because the Statute saith that two Iustices of which one of them shall be of the Quorum shall proceed in such cases against the Malefactor and that they shall compell the party to allow means for the education of the Infant or otherwise the Offendor shall suffer corporall punishment and so this Warrant not being speciall according Pasch 16. Jac. In the Star Chamber Wrennums Case SIr Henry Yelverton Attorney-generall exhibited an Information in the Star Chamber against one Wrennum Ore tenus because he had divers times petitioned the King against Sir Francis Bacon Lord Chancellor pretending that the said Lord Bacon had done great Injustice to him in granting an Injunction and awarding Possession of Land against him for which he had two decrees in the time of the former Chancellor And also he made a Book of all the proceedings in the said cause between him and one Fisher and dedicated and delivered it to the King in which he notoriously traduced and scandalised the said Chancellor saying that for this unjust decree he his Wife and Children were murthered and by the worst kind of death by starving And that now he having done unjustly he must maintain it by speaking untruths and that he must use his authority Wit Art and Eloquence for the better maintenance therof with other such like scandalous words And the Attorney cited a president 2 Jac. Where one Ford for an offence in the like manner against the late Chancellor was censured in this Court that he should be perpetnally imprisoned and pay the fine of 1000 l. and that he should ride upon a Horse with his face to the tail from the Fleet to Westminster with his fault written upon his head and that he should acknowledge his offence in all the Courts at Westminster and that he should stand there a reasonable time upon the Pillory and that one of his ears shall be cut off and from thence shall be carried to Prison again and in the like manner should go to Cheapside and should have his other ear cut off c. And because they conceived that the said Wrennum had wronged the said Lord Chancellor in the said suggestion they all agreed in his censure according to the said President See for such matter 19. Ass 5. 9 H. 8. Sir Rowland Heywards case and 21 H. 8. Cardinall Wolseys case The same Term in the Kings Bench. Mingies Case AWrit of Annuity was brought by Mingy which was granted Pro Consilio impenso impendendo the Defendant pleaded in Bar that he carried a Bill to the Plaintiff to have him set his hand to it and because he refused Annuity pro Consil impenso c. he detained the said Annuity And per Curiam this is no plea for he is bound to give advice but not to set his hand to every Bill for this may be inconventent to him The same Term in the same Court THe Case was this A Lessee for years was bound in a Bond to give up the possession of the Land demised to the Lessor or his Assigns at the end of the Term the Lessor assigns over his Interest and the Assignee requires the Lessee to perform the Condition who answers that he knew not Notice where requisite whether he were the Assignee and therupon refuseth And the question was whether he had broken the Condition and it was adjudged that he had for he hath taken upon him so to do and it is not like a Condition annexed to an Estate as Co. lib. 5. Mallories case or Co. lib. 6. Greens case where the Patron presented his Clark to a deprivation yet the Ordinary ought to give the Patron notice of the deprivation for it is a thing Spirituall of which a Lay-man shall not be bound to take notice It was moved that a man riding upon a Horse through the water was Dead and. drowned and by the Coroners Inquest it was found that his death was caused Per cursum aquae and the Horse was not found a Deodand and per Curiam they did well for the water and not the Horse was the cause of his death The same Terme in the same Court. Wooton versus Bye THe case was this A man made a Lease for years rendring Rent and upon payment of the Rent the Lessor made an Acquittance by a release of all Actions Duties and Demands from the beginning of the World to Release of all Demands bars a future Rent the day of the date And whether the Rent to come were released by it was the question And it was moved by Crook at the Bar that it was not for a Covenant in future shall not be released by such words yet a release of all Covenants will be good in such a case as the Book is in Dyer 57. so Hoes case Co. lib. 5. 70. b. such a release will not discharge a Bail before Iudgment But it was answered and resolved by the Court that such a Release will discharge the Rent to come for this word Demand is the most large and ample word in a Release that may be as Littleton saith and in Co. lib. 8. Althams case and in Hoes case Co. lib. 5. one was Bail for the Defendant the words wherof are conditionable Scil. Si contigerit predict defendent debit damna illa prefat Quer. minime solvere c. So that before Iudment it is altogether incertain and therfore cannot be released but in the case at the Bar he hath Jus ad rem though not in re as Crook Iustice said The same Term in the same Court. Bret versus Cumberland IN a Writ of Covenant the case was thus Queen Elizabeth by her Letters Patents made a Lease of certain Mills rendring Rent in which Lease were these words to wit That the said Lessee his Executors Administrators and Assigns should from time to time repair the Mills and so leave them at the end of the Term the Lessee assigns over his Term the Queen also
Living And Mountague chief Iustice said that this word Bribing doth not import that he took a Bribe and therfore this word and all the other words but corrupted Knave are idle but these words impeacheth him in his Office for it hath reference to that and therfore is actionable And Iudgment was given accordingly The same Term in the same Court Sir Baptist Hickes Case in the Star Chamber SIr Baptist Hickes having done divers Pions and Charitable Acts to wit had founded at Camden in Glocestershire an Hospitall for twelve poor and impotent men and women and had made in the same Town a new Bell tunable to others a new Pulpit and adorned it with a Cushion and Cloath and had bestowed cost on the Sessions House in Middlesex c. one Austin Garret a Copyholder of his Mannor of Camden out of private malice had framed and writ a malicious and invective Letter to him in which in an ironicall and deriding manner he said that the said Sir Baptist had done these charitable works as the proud Pharisee for vain-glory and oftentation and to have popular applause and further in approâ—rtous manner taxed him with divers other unlawfull Acts And it was resolved by the Court that for such private Letters an Action upon the case doth not lye at Common Law for he cannot prove his case to wit the publishing of it but because Where a private Letter is punishable as a Libell it tends to the breach of the Peace it is punishable in this Court and the rather in this case because it tends to a publike wrong for if it should be unpunished it would not only deter and discourage Sir Baptist from doing such good Acts but other men also who are well disposed in such cases and therfore as the Arch-bishop observed this was a wrong 1. To Piety in respect of the cost bestowed on the Church 2. To charity in regard of the Hospitall 3. To Iustice in consideration of the Session House and these things were the more commendable in Sir Baptist because he did them in his life time For as Mountague chief Iustice observed they who do such acts by their Will do shew that they have no will to do them for they cannot keep their Goods any longer And he only took a diversity where such a Letter concerns publike matter as they did or private in which case it is not punishable But the Lord Coke said that it was the opinion of the Iudges in the Lord Treasurers case when he was Attorney that such a private Letter was punishable in this Court and therupon he had instructions to exhibit an Information but the Lord Treasurer Jacens in extremis was content to pardon him and so it was resolved between Wooton and Edwards And Sir Francis Bacon Lord Chancellor said that the reason why such a private Letter shall be punished is because that it in a manner enforceth the party to whom the Letter is directed to publish it to his friends to have their advice and for fear that the other party would publish it so that this compulsary publication shall be deemed a publication in the Delinquent and in this case the party was fined at 500 l. The same Term in the same Court. Bernard versus Beale AN Action upon the case was brought for these words viz. That the Words That the Plaintiff had two Bastards 36. yeaâ—s since Plaintiff had two Bastards 36. years ago upon the report wherof he was in danger to have been divorced And it was resolved that for Defamation there was no remedy but in the Spirituall Court if he had no temporall lesse therby and therfore it is not sufficient to ground an Action to say that he was in danger to be diverced but thâ—t he was De facto divorced or that he wâ—s to have a presentment in marriage as it is in Anne Devies case Co. lib. 4. The same Term in the same Court. Brabin and Tradums Case THe Case was That the Church-wardens of D. had used time out of mind to dispose and order all the Seats of the Church wherupon they disposed of a Seat to one and the Ordinary granted the same Seat to another and his A Prohibition for a Seat in the Church Heirs and excommunicated all others who afterwards should sit in the Seat and a Prohibition was prayed and granted for this grant of a Seat to one and his Heirs is not good for the Seat doth not belong to the person but to the house for otherwise when the person goes out of the Town to dwell in another place yet he shall retain the Seat which is no reason and also it is no reason to excommunicate all others that should sit there for such great punishments should not be imposed upon such small Offenders an Excommunication being Traditio diabola In the same Term in the same Court. Fulcher versus Griffin THe Parson of D. covenanted with one of his Parishoners that he should A Parson covenant that his Parishoners shall pay no Tithes pay no Tithes for which the Parishoner covenanted to pay to the Parson an annuall summ of money and afterwards the Tithes not being paid the Parson sued him in the Court Christian and the other prayed a Prohibition And it was agreed that if no interest of Tithes passe but a bare Covenant then the party who is sued for the Tithes hath no remedy but a Writ of Covenant And the better opinion of the Court in this case was that this was a bare Covenant and that no interest in the Tithes passe The custody of a Copyholder that was a Lunatick was committed to Darcies case in the Common Pleas. I. S. and for Trespasse done upon his Land it was demanded of the Court in whose name J. S. should bring the action and their opinion was that it should be in the name of the Lunatick Trinity 16. Jac. In the Kings Bench. The Earl of Northumberlands Case THe Earl of Northumberland being seised of the Mannor of Thistleworth in which he had a Leet to be holden twice a year to wit within a moneth after Easter and a moneth after Michaelmas and Henry Devell being a Free-holder of the said Mannor erected a new Dove-coat at Heston within the Precinct of the said Leet which was presented at the Leet for a common Nusance for which Devell was amerced 40 s. and was commanded to remove it upon pain of 10 l. for the which a Distresse was taken by Henry Sanders and others as Bailiffs to the said Earl wherupon Devell brought a Replevin and they made Avowry and justified as Bayliffs and prescribed that they used to make by-laws to redresse common Nusances and also prescribed in the Distresse And the point in question was whether the new erecting of a Dove-coat by a Free-holder were a common Nusance punishable Whether the erecting of a Dove-coat be a common Nusance in the Leet And it was resolved by the whole Court upon
levied yet the Vse shall be directed by the originall Indenture and therfore 6 Rich. 2. A Feoffment is made to two and their Heirs and afterwards a Fine is levied upon it for further assurance to the use of them and the Heirs of one of them yet it shall go to the use of both for it shall be respected according to the original agreement where there are divers assurances for the perfecting of one and the same thing 16 E. 3. tit Age. A Daughter had a Seigniory by descent a Tenancy Escheats a Son is born he shall have the Land see Sharoes case in 4 Mar. Dyer and in Chadleighs case all looks to the originall agreement and therfore variance of time shall not hinder the originall agreement as 33. Ass the Servant inâ—ends to kill his Master and afterwards the Master puts him out of his Service and then he kills him this shall be petty Treason in the Servant 28 H. 6. Two are bound in a Bond at severall times and yet he shall declare against both as upon the first delivery 11 H. 7. it is adjudged that if a Deed be delivered by an Infant and afterwards it is again delivered when he comes of full age And see Mallories case Finches case and Borastons case Nunc tunc quando are a demonstration of the time and not of the matter and so they concluded that the Vse shall rise upon the first Indenture and not upon the Fine or Replevin brought but Doderidge and Haughton Iustices contra Trin. 17. Jac. In the Kings Bench. Silvesters Case JOhn Silvester promised to John B. that if he would marry his Daughter that he would give with her a Childs part and that at the time of his death he would give to her as much as to any of his Children excepting his eldest Son and afterwards he made his Executors and died I. B. brought an action upon the case against the Executors upon this Promise and shewed that the Executor had not given him a Childs part and that such a younger Son of the Testators had a 100 l. given him And it was resolved by the Court that the promise of a Childs part is altogether incertain but being so much as any of his Children had and then shewing that the younger Son had a 100 l. this was certain enough and therupon Iudgment was given for the Plaintiff The same Term in the same Court. Godfrey and Owen COrnelius Godfrey was Plaintiff in an action upon the case for Words He is a very Varlet and seeks to supâ—res his brothers Will c. words against Owen Defendant and the words were these to wit He is a very Varlet and seeks to suppresse his Broâ—hers Will he makes shew of Religion but he is a very Hypocrite And the words were spâ—ken of a Merchant to one who gave him much credite in his Trade Mountague chief Iustice said that the words which are actionable in such a case ought to touch the Plaintiff in his Profession which these do not do Et relata ad personam intelligi debent secundum conditionem personae for in the suppressing of his Brothers Will the case might be such that he might well do it for perhaps there may be an after Will made And for calling him Hypocrite lies not in the conusance of the Common Law for GOD only can judge of the heart of man and therfore these words do not touch the Plaintiff as he is a Merchant Doderidge Iustice Words ought to tend some way to the ruine of the party or otherwise they are not actionable and Iudgment was given Quod quere nil capiat per billam Mich. 17. Jac. In the Star Chamber Sis John Bingleys Case IN Sir John Bingleys case in the Star Chamber it was resolved by the two chief Iustices Mountague and Hobart and agreed by the Lord Verulam Lord Chancellor and Sir Edward Coke that if an Information be exhibited there which begins with divers particular misdemeanours and conclude in the generall that 1. The matter included in the generall charge ought to be Ejusdem generis 2. They ought to exceed the particulars expressed in number 3. They ought not to be greater or more capitall wherupon Mountague cited the Statute which speaks of Deans and other Spirituall persons upon which it hath been resolved that Bishops are not within it for they are of a higher degree and the principall reason of these rules was because that a man cannot possibly make a defence because he knews not what will be objected against him and upon this Sir John Bingley was discharged at this time for the most transcendent Offence that was objected against him to wit concerning Captain Baugh and other Pirates to whom the King of his grace and bounty had given 200 l. to make them Loyall Subjects But Sir John Bingley Colore officii had defrauded them of almost An Officer â— his own wrong all of it for the want wherof some of them died miserably and the rest became Pirates again But Sir John Bingley made many protestations of his innocence in this mâ—tter And it was holden also that one might be an Officer of his own wrong as their might be an Executor of his own wrong And this was Sir John Bingleys case for somthing in the information for he committed Extortion Colore officii The same Term in the Star Chamber THe Attorney-generall put in an Information against divers Dutch Merchants for buying and transporting of many great summs of Gold and Silver Bullion And it was said by the Court that divers Statutes had been made for redresse of this mischief as the Statute of 5 R. 2. the Offenders wherof ought to forfeit all they may and by another Statute in 17 E. 4. this Offence was made Felony to continue for seven years But the Court would not now punish them upon any Statute for it was an offence at common To carry Gold and Silver out of the Realm punishable at Common Law Law and therfore punishable in this Court And Sir Edward Coke said that if any be to be punisht upon a penal Statute it ought to be within two or three years at least after the offence committed for the Informer hath but a year to sue and the King two years for the most part The Statutes of 37 E. 3. and 5 E. 6. Prohibite the buying of Coin and that it is so at the Common Law see 21 E. 3. 60. and Plow 215. and not only he that buyes but he that sels also offends in it for it is a Prerogative only belonging to the King and it is his Coin and none can put a value upon it but himself which is a Flower of his Crown Hobart chief Iustice of the Common Pleas as one shall be punished for ingrossing any Commodity a Fortiori one shall be punished for ingrossing and buying of a great quantity of money all other Commodities being thereby ingrossed for money is the Mistresse of commerce Pecunia
my Furze And after Verdict for the Plaintiff it was moved in Arrest of Iudgment thâ—t these words were not actionable But it wâ—s said on the other side that to say thou art a Theef is actionable and the subsequent words are in the Copulative and enure as a confirmation of the precedent words But if it had been for Thou hast stoln my Furze this had been â—n explanation of the precedent words and therfore in that case the action would not have been And it was answered and resolved by the Court that the word and in some cases shall be taken as the word for and so it shall be in this case and therfore adjudged that the action lies Mich. 22. Jac. In the Star Chamber TWo men came Ore tenus into the Star Chamber for stealing of the Kings Deer and were fined a 100 l. a peece and three years Imprisonment unlesse it would please he King to release them sooner and before Fines in the Star Chamber for killing the Kings Deer they should be released of their Imprisonment to be bound to their good behaviour And it was observed by the Attorney-generall that the offence was the greater in regard that the King had but one darling pleasure and yet they would offend him in that And it was said by some of the Court that it was a great folly and madnesse in the Defendants to hazard themselves in such a manner for a thing of so small value as a Deer was The Lord President said that Mr. Attorney was the best Keeper the King had of his Parks in regard he brings the Offenders into this Court to be punished The Lord Keeper said that the Defendants in such a case being brought Ore tenus â—re not allowed to speak by their Counsell and yet these men have had their Counsell but it was Peters Counsellors meaning their sorrow and contrition at the Bar which much moved him so that if his vete might prevail he would set but 20 l. fine upon them In the same Term in the same Court THe Lord Morley and Sir Richard Mollineax being beyond Sea their Sollicitor in their names exhibited a scandalous Bill in the Star Chamber against the Bishop of Chichister and after their return this continued so for three years without any disclaiming therof by them and now the matter being questioned they said that it was not done with their privity But because they had not disclaimed the Fact before they were fined a 100 l. to the King and a 100 l. to the Bishop for Damages and the Bill was to be taken of the File The same Term in the same Court. Lewes Plaintiff versus Jeoffreys and others Defendants THe Plaintiffs Brother had been a Suitor to a woman which matter proceeded to a Contract and afterwards the Defendant Jeoffreys hapned to be a Suitor to her also wherupon being Rivalls they fell out and the Plaintiffs Brother called the Defendant Jackanapes which was taken very ill by the Defendant being a Iustice of Peace in the County of Worcester and the other being but a mean man in respect of him so that he told him that if he would meet him on Horse-back he would fight with him afterwards one of the Sons of the Defendant went to the said Brother being upon his own Land and gave him a mortall wound wherupon a friend on the behalf of the party wounded came to the Defendant being a Iustice of Peace and brought him a peece of his Skull to the end that his Son should be forth coming at the next Assises declaring to him the danger of death the man was in wherupon the Defendant took a Recognisance of 10 l. of his Son and of his sureties of 5 l. a peece to answer this at the next Assise And in the mean time the party died of the said wound and the Son did not appear at the Assises and the Iudges of Assise fined the Defendant 100 l. for taking such slender security for the appearance of his Son which was paid and yet notwithstanding the Defendant was fined 200 l. more for this offence and also 200 l. for his misdemeanor in his challenge albeit the Defendant A Challenge fined in the Star Chamber was of the age of 63 years and so it seems that he intended to fight with him But he being a Iustice of Peace who is Conservator pacis he did against his oath to do any thing which may tend to the breach of the Peace And for the other matter it was said by the Court that the Defendant being Father to the offendor it had been better for him to have referred this matter to another Iustice of Peace or at least to have had the assistance of another And the party being in such great danger of death his son was not bailable Hillary 1. Car. In the Kings Bench. Bowyer versus Rivet THe case was thus Sir William Bowyer 12. Jac. recovered against Sir Thomas Rivet in an Action of debt Sir William made his wife his Exceutrix and died the wife made Bowyer her Executor and died then Sir Thomas Rivet died Bowyer brought a Scire facias to have execution upon the Iugment against Sir Thomas Rivet the younger as Heir apparant to the Land to him descended from Sir Thomas Rivet who pleaded Riens per descent from Sir Thomas Rivet and it was found that he had two acres and a half of Land by discent and it was prayed by Goldsmith that Iudgment might be given against Sir Thomas Rivet generally for he said that this false Plea shall charge him and his own Lands and cited Plowden 440. where in debt against an Heir upon his false Plea his own Lands shall become liable to the debt and Co. lib. 3. 11. b. Sir William Herberts case where the case was upon a Scire facias against the Heir as it is in this case But on the other part it was argued by Richardson the Kings Serjeant Banks and all the Iustices that Execution shall be awarded in no other manner against the Heir then it should be against his Ancestor or other Purchasor to wit of a Moyety of that which he had by discent for as much as in this case he cannot be to this purpose charged as Heir but he ought to be charged as Ter-tenant and as a Purchasor and a Purchasor shall never hurt himself but his false Plea And Banks argued that the Heir in this case is charged as a Purchasor and the false Plea of a Purchasor shall never charge himself 33 E. 3. Fitz. Execution 162. and 6 E 3. 15. and that in this case he is charged as Ter-tenant appears by three reasons 1. Debt will not lye against an Heir but where he is bound as Heir but in this case Execution is to be sued against him as another Ter-tenant Dyer 271. 11 E. 3. 15. and in 27 H. 6. Execution 135. and Co. lib. 3. 12. b. That in Iudgment upon Debt or Recognisance the Heir is charged and