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
and Beaumount 77 Specot and Shere 91 Simpsons case 92 Shudsouth and Fernell 107 T. TImberly and Calverley 47 Tadcaster and Hallowell 47 Thompson and Green 105 Trugeon and Meron 128 W. WIlde and Woolf 41 Wolley and Bradwell Wrotheys Case Sir George Walker and VVorsley 83 VValcot and Hind 14 PASCH 15 JACOBI Combes versus Inwood THE first day which I sate at the Bench after the day in which I was sworn Ejectione suma A Conveâ—ance delivered to be enrolled and yet not inâ—â—lled shall be accounted a Record i. e. Thursday the twenty second of May A Iury was at the Bar from the County of Surrey in an Ejectione firmae brought by Combes against Inwood upon a Lease made by one John Stockwood which was Heir to one Edward Stockwood and was for a Farm in Chertsey called Haylwick And upon Evidence the Case appeared to be thâ—â—s Edward Stockwood was seised in fee and about the 29 Hen 8. this Land was supposed to be conveyed to King Hen. 8. in fee for the enlargement of the Honour of Hampton but no Deed nor any other matter of Record was in being to prove this originall Conveyance and many Arguments were used to prove that there was never any such Conveyance because there was not one of any such conveyance named in the Act of 31 H 8. But of the other part it was proved that this Land had continued in exchange as the Land of H 8. all his life by divers accounts and that it had been enjoyed by divers Leâses made by Edward 6. and Queen Elizabeth and Rent paid for them And that in the year 16 Eliz. she granted it in Fee-farm to the Earl of Lincoln and under that Title the Land had been quietly enjoyed untill of late time And the Court delivered their opinion That it there were a Deed by which Stockwood conveyed the Land to H 8 and that brought into the Court of Augmentation although this Deed be not found nor inrolled yet it is a sufficient Record to intitle the King and it is a Record by being brought into Court and there received to be inrolled And the Report of the case in Lord Dyeâ— fol 355.19 Eliz. was not as it is there reported for it was for Bormiâ— Inne and it was adjudged a good conveyance and in this case the Iury found for the Defendant Trin. 14 Jac. Rotulo 769. Steward versus Bishop Words STeward brought an Action upon the Case for certain words against Bishop because that the Defendant said Steward is in Leicester Gaol for stealing an Horse and other Cattell the Defendant pleaded not guilty and the Iury found for the Plaintiff and Damages to thirty pounds And it was moved in Arrest of Iudgment by Serjeant John Moore that the Action doth not lye for the words do not affirm and Deed or Act or Offence but that he was in prison upon suspition of an Offence And it is the Ordinary speech and communication by way of interrogation What is such a one in prison for For stealing And all the Kalenders are such a one for stealing of a Horse such a one for Murther Vide Coke lib 4. he is detected for Perjury is not actionable And to say such words of a Iustice of Peace or an Attorney peradventure it shall be otherwise yet it seems all one if it touch not him in his Profession To say that I. S. was in Newgate for forging of Writs will not maintain an Action and so adjudged in Nowels case and Iudgment was given that the action will not lye Pasch 15 Jac. ONe brought and Action upon the Case and counted that the Defendant in consideration that the Plaintiff would take such a woman to his Wife promised to pay twenty pounds when he shall be therto requested after the marriage Request where it shall not be alledged and that the Plaintiff such a day had married the said Woman and the Defendant though often requested did not pay the aforesaid twenty pounds And it was moved in Arrest of Iudgement that he had not shewn any particular request but yet Iudgment was affirmed for the Plaintiff for this action is grounded upon the promise which imports Debt and not upon any collaterall matter which makes it a duty by the performance of a collaterall Act upon the request Trin. 15 Jac. Resolved upon the Statute of 3 H. 7. Cap. 2. VPon divers Assemblies at Serjeants Inne of all the Iudges to consider by the direction of the Star-Chamber whether by the Statute of 3 H 7. cap 2. the taking of any Woman against her will and the marrying or deflowring of her be Felony or only of such a Woman which hath Substance or Goods or Lands or otherwise be an Heir apparent the body of the Act seems to be generall viz. He that shall take any Woman so against her will And it was said that it were a great inconvenience that it shall be Felony to take an Heir apparent of a poor man or to take a Woman which hath but a very small Portion and of mean Parentage and as it was said of a Woman in a red Peticote and that it shall not be felony to do and commit the said Offence in taking the Daughter of an Earl or some other great man of the Realm But it was resolved that the body of the Act was incorporated to the Preamble for it had been adjudged that if one take a Woman with an intent to marry her or deflower her c. and doth it not this is not Felony and this rests only upon the Preamble then it shall have relation as well to such a Woman which is before named viz. Maid Widow or Wife having substance and to an Heir apparent and to no other And so it was taken in a Case in the Star-Chamber by the like resolution 10 Jac. between Baker and Hall and the Lord chief Baron said Baker and Hall that it had been adjudged that no Appeal did lye upon this Statute and all the Presidents in effect warrant this resolution vide Stamford fol. 37. Statute 1 H. 4. Cap. 14. COnsideration upon the Statute 1 H 4. Cap 14. was had how the word Appeals shall be intended before the Constable and Marshall And 26 Eliz. Doughties Case Doughties case Petition was made to the Queen by the Heir to make a Constable and Marshall but she would not Admitting that the King get a Commission of the Office of a Constable and Marshall whether the King may have any remedy before them by Indictment or information by the Attorney generall Mich. 15 Jac. Andrews versus Hacker AN Assise of Darrein Presentment was brought by Andrews against Hacker and the Earl of Salop Assise and against the Arch-bishop of York for the Church of Gothur in the County of Nottingham the Assise was brought to the Bar and when the Iury appeared the Arch-bishop made default and the others appeared and pleaded in abatement of the Writ that the same
it is not deminâ—tion of his Honor to be sworn concerning that which he would not have to be put upon his Honor. Also it is a good Rule Testi non jurato non est credend in judicio And Princes are sworn to all their Leagues and Confederacies which is called Jeramâ—ntum confirmationis Hil. 2 Car. Winsmore versus Hobart Trin. 27 Eliz. Rot. 850. Wilts IN an Ejectione firmae brought by Thomas Winsmore against Michaâ—l Hobart upon a Lease made by Edward Long the Iury gave a speciall Verdict Habendum to parties not named in the Deed. William Lord Sturton seised of the Tenements in the Count in Fee by Indenture demised them to Thomas Hobart habendum to the said Thomas Hobart and to the said Michael Hobart Iohn Hobart and Henry Hobart Sons of the said Thomas for their lives and the life of the Survivor of them successively By vertue wherof the said Thomas entred and was seised for life And the Lord Sturton granted the Reversion to Thomas Long in Fee to whom Thomas Hobart attorned Thomas Long devised it to Edward Long in tail Edward Long died seised and the Reversion descended to Edward his Son the Lessor of the Plaintiff Thomas Hobart and Henry died Michael and Iohn survived Michael entred Thomas Long entred upon him and made a Lease to the Plaintiff who entred and was possessed untill the Defendant ousted him And Judgment was given for the Plaintiff The Habendum was void as to all them which were not parties to the Deed. Pasch 3. Car. Hartox and Cock's Case Entred Pasch 2 Car. Rot. 1761. Hertf. A Quare Impedit was brought by George Hartox and Cocks against the Bishop of Lincoln Advowson in grosse for life Lord Keeper of the great Seal Mary Hewes and David Dublin Clark for the Church of Essington The Issue being joyned by the Incumbent upon the Appendancy the Evidence given to the Plaintiff to prove it was such Henry 6. was seised of the Mannor in Fee and granted it to Mary his Consort for life Habendum una cum advocatione of the said Church The Queen Mary presented and after there was a Presentment by Laps then the said Queen presented again And afterwards Edward the fourth seised of the said Mannor presented and then Henry the seventh and Henry the eighth And the King Edward the sixth granted the Mannor and other Mannors and the Advowson to Sir Iohn Pawlet in Fee reserving Tenure in Capite for the Maonnrs and Socage Tenure for the Advowson And the said Sir Iohn Pawlet granted the Mannor and the Advowson to William Tooke in Fee who presented the last Incumbent and under this Title the Plaintiffs entitle themselves The Defend said that the said Wil. Took was seised of the said Advowson and it defended to William Tooke the Son and granted the next avoidance and it came to Mary Hâ—wes who presented the Defendant Dublin and the Evidence to prove that it was in grosse was Henry the third being seised in Fee of the Mannor of Essinton made a Lease therof to his Brother for life and excepted the Advowson and then upon the expressing of the Advowson upon the Grant of Edward the sixth and the reservation of severall Tenures And this was their Evidence And Serjeant Henden maintained that by this exception of the Advowson when it was granted for life made it to be in grosse for ever And he vouched 38 H 6. 13. Quare Impedit by the King against the Abbey of Sion and the Incumbent there by the Exception of the Advowson it was become in grosse and there one said at least during the Estate for life and that is all which is implyed by the Book for the Iudgment is for the King because that it being not appendant is passed not by the Grant by the Habendum una cum c. And though that the Court unement agreed that it is but in grosse for the Estate for life and that it is all one as if the King had granted the Advowson which is appendant for life and the Grantee dies and the Advowson is appendant again and yet he insisted and persisted to have a speciall Verdict found therupon And I moved my Brother Yelverton that before we admit of a speciall Verdict as it hath been used in former times to go to the Iudges of the Kings Bench and to put the case to them to know their opinion and when he came again and declared it we put it upon the Iury to try the matter and they came in and found for the Plaintiff And after that the Demurrer which was joyned for the other Defendant Mary was by consent entred for the Plaintiff vide Dyer 34 in appeal vide 7 H. 6. 37. Chidley's Case CHidley brought a Quid juris clamat and had Iudgment against the Defendant and the Plaintiff had made a Warrant to his Attorney for the receiving of his Attornment Quid juris clamat and the Defendant would have attorned but would not do his Fealty And the Presidents were that he ought to be sworn in Court and the entry of the Iudgment is that he did attorn And fecit fidelitatem and so he was sworn in Court vid. 37 H 6. 14. If he refuse to attorn being in Court he shall be committed for contempt Moyle said that that is Attornment but Prisot said that he should not have a Writ of Wast nor arraign an Assise untill he assent Trin. 3 Car. Rot. Humbleton versus Buck. Lincoln SImon Humbleton brought an action upon the case against Buck Case Assumpsit in consideration of defending Suit in maintenance of a Title of Common and counted that wheras a Controversie was between the Inhabitants and Tenants of Fletam and one Palmer for and concerning the having of Common in one parcell of Land which was a Sea-bank in which they had Common of Pasturs for taking by Cattell and also by taking and cutting the Grasse And wheras the said Palmer had brought an action of Trespasse against the now Plaintiff for entry made by him in the said close and for taking his Grasse pretending that the said Land in which he claimed Common was his severall and free from their claim of Common the Defendant in consideration that the Plaintiff had given to him a Iugg of Beer and that he at the request of the Defendant would prosecute and defend â—he said Suit for the maintenance of their Common against the said Palmer untill the determination therof he promised to pay to the Plaintiff one moyety of his charges and over and besides twenty pounds and that therupon he defended the said Suit and pleaded Not guilty and at the tryall therof Palmer was non-suited and that that was for the maintenance of the Common and that he expended in defence and prosecution of the said Suit forty pounds The Defendant confessed all the Inducement and also a promise sub modo and sayd that the said Palmer had brought Trespasse to which the Plaintiff had
to him and he will pay for the making therof that is a good consideration vide Coke lib 8. fol 147. And in this case all the Court were of opinion that the consideration was good for wheras he might have detained the Horse untill he had been paid for the pasture and feeding he at the speciall request of the Defendant had delivered the Horse to him to the use of the Owner which is to the prejudice of the Plaintiff and alienest to him to whose use he was delivered And Iustice Harvey vouched a case which was in this Court adjudged which was in consideration that the Plaintiff had promised to pay to the Defendant ten pounds at a day according to the Condition of an Obligation the Defendant promised to deliver the Obligation and adjudged a good Consideration Turner versus Hodges THe Custom of the Mannor of _____ is found to be for the Copyholders without the License of the Lord of the Mannor they being seised in Fee may make any Lease for a year Custom in a Mannor to make aâ— Lease for years or many years and when they dye that â—â—e 〈◊〉 shall cease and that the Heir or Heirs may enter It was moved in Arrest of Iudgment that this was a bad Custom and that the Copyholders had by Custom an Inheritance and might by the generall Custom of the Ream make a Lease for one year And that tenor the generall Custom of the Realm but the Custom of every Mannor within the Realm vide Coke lib 4. fol 26. in Melwiches Case Custom creates the Estate and the Custom is as ancient as the Estate and is casuall and upon the Act of God and is reasonable that the Heir who is to pay the Fine should have the Possession And yet a Custom that if the Copyholder had surrendred to the Lord that the Lease should be void had been a 〈◊〉 Custom because that he might subvert and destroy by his own act that Estate that he himself had made and he which took the Lease haâ—ing notice of the Custom takes the Lease at his perill for otherwise he might have procured the License of the Lord and then by this License the Lord had dispenced therwith and that is as it were the Confirmation of the Lord For if a Copyholder makes a Lease for twenty years with the License of the Lord and after dies without Heirs yet the Lease shall stand against the Lord by reason of his License which amounts to a Confirmation And the Plaintiff had Iudgment Hil. 4 Car. EJectione firmae was brought and count upon a Lease made by Husband and Wife Lease by Baron and Feme without reservation of any Rent and that was by Indenture And upon Not guilty pleaded a speciall Verdict was given in which the sole question was Whether this Lease was made by Baron and Feme being there was no Rent reserved therby It was objected that this Lease could not be made good by the Feme by any acceptance and therfore it is not the Lease of the Feme no more then if the Verdict had found that the Lease was by an Infant and no Rent reserved that had been a void Lease But it is contrary of a Baron and Feme for the Baron had power and the Feme joyning in the Lease it is not void for she may affirm the Lease by bringing a Writ of Wast or she may accept Fealty And so was the opinion of the Court and Iudgment entred accordingly vide Coke lib 2. fol 61. in Wiscots case Count of a Lease by Baron Feme and shew not that it was by Deed and yet good vide Dyer 91. Pasch 5 Car. Paston versus Utber JOhn Paston brought Ejectione firmae against Barnard Utber upon a Lease made by Mary Paston And upon Not guilty pleaded a speciall Verdict was found at the Bar and the Case was thus Custom that the Lord have a Feild-course over the Lands of his Coppyholders if the Tenant inclose it is no forfeifture Barnard Vtber seised of the said Land to him and his Heirs by Copy of Court-Roll according to the Custom of the Mannor of Binham And that within that Mannor there is such a Custom that the Lord had had one field course for five hundred Ewes in the North-field and the West-field wherof these fifteen acres were parcell from the Feast of Saint Michael if the Corn were inned and if it were not then after the Corn were inned untill the Feast of the Annunciation if it were not before that time sown again with Corn in all the Lands of the Copyholders not inclosed And that it is a Custom that no Copyholder may inclose any Copyhold Land without the License of the Lord And if any be inclosed without License then a reasonable fine should be assessed by the Lord or his Steward for the Inclosure if the Lord would accept therof And it is also a Custom that if the Lord will not accept therof then the Copyholder which so incloseth shall be punished at every Court after untill he open that Inclosure And the said Vtber inclosed the 15. acres with an Hedge and Fence of Quick-set 3. feet deep and 6. feet broad and that he had left 4. spaces of 9. feet broad in the said 15. acres And that the said Vtber was required by the Steward to lay open the said Inclosure and he did it not whereupon there was a command to the Bayliff to seise them as forfeit which was done And the said Mary being Seignoress of the Mannor entred and leased to the Plaintiff and the Defendant entred upon him Serjeant Davenport argued that it is a forfeiture and against the Custom which creates the Feildage for the Lord as well as the Estate of Copyhold for the Tenant and that this leaving of four spaces is a fraud and device and that it is against his Fealty and is to the damage of the Lord and a thing unlawfull vide Dyer 245. 34 E. 1. Formedon 88. 15 A 7. 10. 29 E 3. 6. That if the Tenant inclose the Commoner may break his hedges And though by Littleton an Inclosure which is a Disseisin is a totall Inclosure wherby he which hath the rent cannot come to distrain yet this also is an Inclosure because that it obstructs the feild-course for they cannot come so freely without interuption or damage for the hedges may deprive the Sheep of their wooll And he compared it to the case of 3 H. 7. 4. One is obliged to make an Estate of his Mannor of Dale if he alien part and then make a Feoffment the Condition is broken and vide 5 E 3. fol 58. a Recognizance with Condition to make a Feoffment to I. S. of the Mannor if he alien part therof he forfeit his Recognizance he vouched 42 E 2. 5. and Coke lib 4. that deniall of Services or making of Wast is a forfeiture 22 H 6. 18. 41 E 3. Wast 82. Dyer 364. And though that the Lord may
proceed by fiue to enforce him to lay it open yet these Affirmative Customs do not toll the Negative And to prove that the Lord had an Inheritance therin he vouched 14 E 2. Fitz. Grant 92. A Rent granted to one and his Heirs out of the Mannor of Dale which he hold of the Mannor of D. this is an Inheritance And if this shall not be a forfeiture then this Customary Inheritance which the Lord had in the feild-course might be tolled at the will and pleasure of the Copyholder Serjeant Hitcham argued strongly to the contrary First That it is no Inclosure because that all is not inclosed Secondly The forfeiture of a Copyhold is alwaies by some thing done to the Copyhold land it self but this is done as it is supposed to the feild-course of the Lord which is not Copyhold and it is better for the Copyhold and makes the land better and also the Feild-course is therby made better and more beneficiall to the Lord and therfore the Copyhold land is not altered but is meliorated and it is like so the case in Dyer 361. Althams case after no Wast done the Evidence was that a Trench was made in a Meadow by which the Meadow was Meliorated and adjudged no wast which might be given in evidence But he said that in Brooks case at the first comming of Popham to be chief Iustice it was adjudged that if a Copyholder build a new house it is a forfeiture for that altoreth the nature of the thing and put the Lord to more charge So if Tenant for yeare makes a Hay-yard in the land that is wast He said that this Custom is qualified by taking a Fine if he would or by imposing a pain in the Court to enforce the Defendant to lay it open And all the Court were of opinion that this is no forfeiture for the reasons before and that this Feild-course is a thing which commence by agreement and is but a Covenant and not of common right And Forfeitures which are odious in Law shall be taken strickly Trin. 5 Car. Starkey versus Tayler Case STarkey an Atterney of this Court brought an action upon the case against one Mr. Tayler of Lincolns Inn for saying of these words to him Words Thou art a common Barretor and a Judas and a Promoter And it was moved in Arrest of Iudgment that these words maintain not action for the generality and uncertainty that he shall be called a common Barretor And the chief Iustice seemed to be of opinion that those words are not more then if he had said That he was a common Brabler or Quarreller But it was urged by Serjeant Hicham that the action lies and that it is a generall Rule Quod sermo relatur ad personam As in Birchley's Case He is a corrupt man And in Mores Case it was said of an Attorney That he was a cousening Knave And if these words were spoken of a common person he doubted if they were actionable but being spoken of an Attorney action lies And if these words were spoken of Iudge without doubt they were actionable And in this case being spoken of an Attorney who is a Minister of Iustice and who hath the Causes of his Clients in his hands to gain them or to lose them The Statute of Westminster saies the Sheriffs are charged to expell all Barretors out of their Countries And in the Statute of 34 E. 3. is the description of a common Barretor and his punishment who is a stirrer of false and unjust Suits and that he shall be imprisoned during the pleasure of the King bound to his good behaviour and fined And Littleton in his Chapter of Warranties faith they are hired to keep Possessions and therfore an action lies But to say of another man That he is a common Barretor is not actionable unlesse he saith that he is convicted Hil. 3 Car Rot. 1302. Watt versus Maydewell Leicest WIlliam Watt brought an Ejectione firmae against Laurence Maydewell Where acceptance of a new Lease for years makes a surrender of the former upon a Lease made by Robert Rome upon Not guilty and a speciall Verdict found the Case was thus Francis Griffith seised of Land in Fee by Indenture bearing date the fourteen of November and 14 Iac. demised the said Land wherof c. for one and forty years to Robert Rome rendring two shillings Rent to commence from the Annunciation which shall be An 1619. and after the same year by another Indenture bearing date the third of December 15 Iac. to commence from the Annunciation last demised the same Lands for ninety nine years to Dame Frances Perroint who entred and was therof possessed And after that the said Francis Griffith by another Indenture the same year bearing date the fourteen day of November 16 Iac. to commence from the seventeenth of November An. 1619. devise it to the said Robert Rome for one and forty years who accepted it and afterwards entred and being possessed made his Will and appointed Executors and died the Executors administred and made the Lease to the Plaintiff who was possessed untill he was ousted by the Defendant And the only question of this Case was if the acceptance of the second Lease by Robert Rome had determined discharged or extinguished the former Lease And after Argument it was adjudged for the Plaintiff the reason was because that by the Lease made to the Lady Perpoint for ninety nine years and her Entry Francis Griffith had but a Reversion and could not by his Contract made afterwards with Robert Rome give any Interest to Robert Rome This Lease made to Robert Rome viz. his former Lease was good in Interest being to commence at a day to come and is grantable over and may be surrendred or determined by matter in Law before the Commencement therof as if he take a new Lease to commence presently which see in 37 H. 6. 29. 22 E. 4. for it tuures in Contract And in this case it had been without question that the taking of the new Lease had been a surrender of the former if it were not by reason of the Lease for ninety nine years which is for so great a number of years that disables him to contract for one and forty years 37 H. 6. 17. 18. 14 H. 7. 3. Dyer 140. Vide Smith and Stapletons case in Plowden If a man makes a Lease for one and twenty years and after makes a Lease for one and twenty yeares by Paroll that is meerly void but if the second Lease had beene by Deed and hee had procured the former Lease to Attorn he shall have the Reversion vide Ive's Case Coke lib 5. fol 11. there it is adjudged that the acceptance of a Leese for years to Commence at a day to come is a present surrender of a former Lease These Cases were vouched in this Case Baker and Willoughby Serjeant Bakers Case in the Court of Wards with the Lady Willoughby that a
font and twenty years that then I. S. shall have the Land and it shall be good vide Dyer 33. Coke lib 10.46 Lampets case But Tuesday the eleventh of February the Lord Hobart by our direction because that we were streightned of time and Howell was so importunate for Iustice that we could not argue delivered the opinion of the Court that Iudgment should be given for the Defendant And he declared that as to the point of a Fee-simple which he called the mounting of one Fee-simple upon another we now declared no opinion But we all without difficulty resolved that this release of Noy be it a Condition or not had discharged it And as to him it is an Interest used by the Devise but not executed untill it happen And therfore in Lampers case there the Release discharged it for there he had no Title executed but vested and commenced and so may have Noy Howell the Plaintiff in this case and it is not like to an Heir in the life of the Father for be is a stranger and he hath no Title at all and yet his Release with Warranty bars him and here this Release is accompanied with Warranty of which nothing was spoken Also as to Noy it is a Condition according to the words of the Will and therfore sans question that Noy had barred himself The Vacation after Hil. 20 Jac. MEmorand That on Munday the seventeenth of February at Serjeants Inn upon the assembly of all the Iustices to take consideration upon the Statute of 35 Eliz. cap. 1. for the Abjuration of Sectaries the Atturney-generall and Serjeant Crew being there Resolutions upon the Statute of Eliz. cap. 1. concerning Sectaries after the perusall of the Statute and the Continuances therof it was first upon debate considered whether this Statute was in force or discontinued and upon the perusall of the Proviso in the Statute of Subsidy and upon reasoning the matter these Points were resolved 1. If a Parliament be assembled and divers Orders made What shall be said a Session of Parliament and a Writ of Error brought and the Record delivered to the higher house and divers Bills agreed but no Bills signed That this is but a Convention and no Parliament or Session as it was An. 12 Jac. in which as it was affirmed by them which had seen the Roll it is entred that it is not any Session or Parliament because that no Bill was signed vide 33 H 6 Brook Parliament 86. every Session in which the King signes Bills is a Parliament 2. It was agreed that if divers Statutes be continued untill the next Parliament or next Session and there is a Parliament or a Session and nothing done therin as to continuance all the said Statutes are discontinued Beriatim Jones Chamberlain Hutton Denham Haughton Dodderidge Winch and Bromley declared their opinions that this Statute is discontinued And that the Statute of Subsidy is a Parliament and that every Parliament is a Session but not e converso for one Parliament may have divers Sessions as the Parliament 1 Jac had four and ended An 7 Jac. vide 33 H 6. Br. Parliament 86. And that this Proviso is not to any other purpose but to continue their proceedings in the same Estate as if this Act had not been made and if this Proviso had not been then this Statute had been discontinued by this act of Subsidy but when this ends and is determined then is the Session ended then it is a Session scilicet a Parliament which ought to be pleaded at the Parliament holden c. and all the Commissions of Subsidy are accordingly and the Proviso call it a Session Then this being done the Lord chief Baron did not deliver any opinion for he said that he had not considered the Statute and afterward it was desired that the Lords would deliver their opinions and therupon the Lord Hobart declared his opinion accordingly That it seemed to him that it was a Session and that it was not safe to meddle with such Law and that he would never refuse to declare his opinion with his Brethren After the Lord chiefe Iustice Ley made a long discourse concerning the purpose and intent of Parliament scilicet That it was not their purpose to destroy so good Lawes and therfore it was not any such Session as was within the intent of the preceding Parliament which was that these should determine when it is a Parliament or Session in which good Lawes are made And Doderidge said that it was fit to see the Commission and that that which hath been said was not to bind any one but every one spoke what then he was advised of and peradventure might change upon better consideration And afterwards upon Tuesday on an Assembly of the two chief Iustices the chief Baron Iustice Haughton Baron Denham Hutton Chamberlain and Jones the Attorney-generall brought the Commission de 12 El. June 1. and that had these words Pro eo quod nullus Regalis Assensus nec responsio per nos praestat fuit nullum Parliamentum nec aliqua Sessio Parliamenti lata aut tent fuit They have power to adjourn this Parliament thus begun And the Commission to dissolve this Parliament 38. Feb. An. 19 Jac. had the same words saving that he recite that he had given his Royall assent to an act of Subsidy by which was intended that it should not be a Session And upon view of the Commission the Lord chief Iustice moved that the King was mistaken in this that he had given power to dissolve this Parliament which had not any Session and if it be a Session then he had no power to dissolve it and then it is as it were a recesse and a Parliament cannot be discontinued or dissolved but by matter of Record and that by the King alone and if the Parliament yet continue then this Statute also continue during the Parliament by the Proviso but that would not serve for first it is against the intent of the King and against his Proclamation And also the case is truly put in the Commission as to the matter in fact and he is not mis-informed but mistaken in the Law and then the Commission for the dissolving is good semblable to the Lord Shandoi's Case and other Cases vide in Cholmleys case But because that all the Iudges were not at this Conference therfore it was deferred untill the next Term and in the interim the Grand Secretary and the Attorney-generall were to inform the King that the Statute is obscure and had not been put in ure and that we could not agree Mich. 20 Jac. Rot. 2805. Bawtry versus Skarlet Sussex JOhn Bawtry Clerk Case brought an action upon the case against Benjamen Skarlet one of the Attorneys of this Court by Bill and count In consideration that the Plaintiff will confesse Judgment the Attorney promise to defer the entry of the Judgment c. that wheras one William Carter Trin. 20 Jac.