profits thereof as in Colliers Case 6 Rep. where one devised Land to his Wife and with the profits that she should bring up his Daughter and that after her death the Estate should remain to his Brother paying to other persons 40 s. and the value of the Land was 3 l. per annum and agreed there that the Brother had a Fee-simple and this diversity was resolved in that case That if the Devise had been to the Brother to the intent that he should maintain his Daughter with the profits or pay out of the profits thereof so much to one and so much to another that this is but an Estate for life for he is sure to have no loss so is it if it be to pay certain sums yearly under the value of the Land for he may pay it out of the profits and is sure to be no loser And this is in effect our very case For first the Charge is imposed for Dower which cannot be intended to exceed the annual value of the Land Secondly it is to be payd out of the Land and therefore there is no charge imposed upon the person of the Devisee but onely upon the Land devised to him so that he takes the Land with this charge and when his Estate determines in the Land yet the charge does always remain upon the Land and the Devisee is discharged thereof and therefore this charge may as well be if he have an Estate for life as if he have a Fee-simple And as to that in Borastons Case 3 Rep. fo 20. b. between W. Allock and Hammond where a Copyholder devised his Land paying to his Daughter and to each of his younger Sons 40 s. within two years after his death and surrendered accordingly and dyed and agreed that the Devisee had an Estate in Fee although the annual profits exceeded the mony that was to be payd and the Reason is plain for it is not limited to be payd out of â—â—e Land or profits but is a payment in gross and it may happen that the Devisee may dye before he can receive so much of the profits And afterwards viz. Trinit 17 Jacob. All the Barons scil Tanfield Bromley and Denham delivered their Opinions severally That Henry and Michael Lock had an Estate onely for their lives because there is no express words in the Devise to make any greater Estate to pass and the condition or clause of the charge imposed by the Wtill does not necessarily imply that they should have a greater Estae then for life for such Estate may satisfie both these clauses as well as an Estate in Fee and the condition is more proper to be annext to an Estate for life then in Fee Judgment Wherefore they resolved That Iudgment should be given for the Plaintiffs but because Sir Thomas Muschamp one of the Plaintiffs dyed hanging the Action no Iudgment could be enter'd Trinit 16 Jacob. Wood against Searl and Jeo IN an Action of Trespass for that the Defendants the 16 of December 15 Jacob. ten Hides of Leather of the Plaintiffs amounting to the value of 10 l. at Tiverton did take and carry away ad damnum 20 l. c. The Defendants as to the force and arms pleaded Not guilty and as to the residue they said that the City of Exeter is and time out of minde was an ancient City and that within the said City there is and for all the said time was a Society of the Art of Cordwainers incorporate by the name of The Master Assistants Wardens and Commonalty of Cordwainers of the City of Exeter and that the said Master Assistants and Wardens have used for all the said time to make By-laws for the government and profit of the said Society and to impose reasonable Fines and punishments upon the breakers thereof And that the 24 of July 44 Elizab. the Master Assistants and Wardens did ordain That no person Burgess or Foreigner not being a Brother of the said Society should make sell or offer to sell or procure to be sold within the aforesaid City of Exon the County or liberty thereof any Boots Shooes Pantofles Pumps or Startops or any other wares belonging to the said Art under pain of forfeiting to the said Master and Wardens for the time being for every offence such sum not exceeding 40 s. as shall be assessed by the Master Wardens and Assistants or the greater part of them and that if any person of the said Society or any other exercising the said Art or any thing concerning the same inhabiting within the said City or the County or liberty of the same who shall break the said Order shall refuse to pay such sum as shall be assessed upon true proof first thereof had of the breach of the said Order that it shall be lawful for the said Master Assistants and Wardens or any three of them taking with them a Constable Bayliff or Serjeant of the Mace or other fit Officer of the Kings to enter into the House Booth Shop Warehouse or Cellar of such person so refusing and there by the discretion of the said Master Assistants and Wardens or the greater part of them to distrain any of their goods then being within the said Houses c. for the said sums forfeited so that it doth not exceed the treble value of the sums forfeited and to detain the same Yet nevertheless if the owner within thirty days shall satisfie the penalty then they shall redeliver the goods And if he doth not satisfie that then the said Master Wardens and Assistants or the greater part of them have power to appraise the goods taken by the oath of six persons and thereupon to sell them and to restore the surplussage to the owner And the Defendants said That at the said time in which c. and time out of minde there was and ought to be a Master two Wardens and twelve Assistants of the said Society within the said City and no more and that the said Edward the sixth of December and before and ever since was Master and the said William and Thomas Payn were Wardens That the 29 of July 15 Jacob. the Plaintiff at the said City then being an Inhabitant within the said City and no Brother of the said Society did make divers Shooes and them there to sale did expose and that the said Master and Wardens and one J. G. T. K. R. J. W. T. K. T. C.G. and J. G. being seven and the major part of the said Assistants the thirtieth of July the 15 Jacob. did impose upon the Plaintiff 33 s. 4. d. for the said offence And they said further that the Plaintiff committed the like offence the seventh of October 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and Assistants and the like offence the 20 of Novemb. 15 Jacob. and 33 s. 4 d. imposed by the Master Wardens and eight of the Assistants and the like offence the second of December 15 Jacob. and 33 s. 4
d. imposed the third of December the same year by the Master and Wardens and nine Assistants All which sums do amount to 6 l. 13 s. 4 d. That the sixth of December the 15 Jacob. the Plaintiff had notice of the said sums so imposed and although he thereupon payd 19 s. parcel thereof yet he did refuse to pay the residue which refusal the 16 of December was duly proved before the said Master and Wardens wherefore the 16 of December 15 Jacob. the Master Wardens and Assistants taking with them John Sowland a Serjeant of the Mace did take the said ten Hides in the said City in the name of a Distress and took them away detained them for thirty days after the said Distress and because the Plaintiff did not pay the residue of the said 6 l. 13 s. 4 d. nor agreed for the same the said Master and Wardens and T. B. C. G. M. A. T. K. J. G. M. B. K. J. W. T. and R. T. being the major part of the Assistants after the said thirty days viz. 17 Jan. 15 Jacob. at the said City did cause the said Hides to be appraised by the oaths of R. S. c. six approved men of the said City who appraised them at 7 l. and the said Defendants and Thomas Payn and the major part of the said Assistants did sell them for 7 l. and they said that the surplusage amounted to 25 s. 8 d. and no more which the said William and Thomas Payn with the assent of the Master and greater part of the Assistants before the Suit to wit the seventh of January in the same year at the said City did offer to pay to the Plaintiff but he refused to accept thereof Absque hoc that the Defendants are guilty at Tiverton or any other place out of the said City of Exeter Vpon which Plea the Plaintiff demurred And I conceive that Iudgment ought to be given for the Plaintiff And herein I will not stand at this time to argue whether the Custom will warrant this By-law because there hath been a resolution in the Case in the 8 Rep. fol. 125. for London onely I observe that the Customs of London are confirmed by Act of Parliament but so are not the Customs of Exeter But admitting that the Custom will warrant this By-law to restrain a legal Trade or Art within the said City yet I conceive this By-law is utterly voyd for three causes and if it were good yet have not the Defendants pursued the same in taking and selling of the goods and that for two causes And as to the first the Defendants have exceeded their Custom in the extent of this By-law as to the place for the Society of the Art is alledged to be within the City of Exeter and then they alledg the Custom to be That they have used to make By-laws for the better Government and profit of the said City so that all the Custom is confirmed to the City but the By-law does exceed this for it is That none shall make sell or offer to sell any Shooes c. within the City or the County of Exon the which is not warranted by the Custom as in 5 Rep. Chamberlain of London's Case it was ordained That if any Citizen or stranger should send any Cloth to sell within the City before it shall be brought to Blackwell-Hall to be viewed and searched this is resolved to be good although it do binde a stranger but the reason thereof is given because the offence is committed within the City whereupon I observe that they can make no Order to extend without the City This By-law does exceed their power in the things prohibited and that in two things First That none shall make any Boots Shooes c. within the City or County whereby every man is restrained to make such things for his own use or for his Master or Family and such restraint is clearly against Law and Reason for although that Companies of Trades in Cities and Towns are allowed by the Law yet they cannot by any Custom restrain a man from making any thing pertaining to their Art for his private use and therefore if this By-law had been That none should use the Art of a Shoomaker within the City this had been good but to restrain any that he may not make Shooes for himself within the City this is voyd Vide Cooks 8 Rep. 129. Wagons Case where it was resolved That he might make Candles for his own use and so every one may bake and brew for their own use Furthermore the Defendants have not alledged any Custom That none shall make any Shooes c. within the City c. except those of the Society but onely that they may make By-laws for the good government and profit of the Society of the Art and the making of Shooes for ones private use is nothing concerning their Society and this is proved by the resolution in the said Case and by the Statute of the fifth of Elizab. That none shall use any Art in which he hath not been educated as Apprentice for seven years yet it is lawful for any to bake or brew or to make any manufacture for his private use without any offence to the Statute So Cooks 8 Rep. 125. Sir George Farmers Case He as Lord of the Mannor of Torcester did prescribe to have a Bakehouse and no other Baker should sell bread there this was a good Custom but to restrain any from baking for himself cannot be a good Custom And the Case of the Taylors of Ipswich 11 Rep. fol. 55. Order That none should use the Trade of a Taylor until he be presented to the Master and Wardens and allowed by them yet one may make Clothes for his Master and Family in case the said constitution were good This By-law does restrain other persons to use their Arts for it is That none shall do any thing pertaining to the Art of Shoomakers and it is apparent that many things do pertain to the Art of a Shoomaker which are to be done by other Artificers for all things belong to the Art which of necessity must be used with the Art and without which the Art cannot be used as Leather which is to be made by the Tanner Lasts which are to be made by the Last-maker Auls by the Smith Threed and divers other things and all these by this By-law are prohibited not onely to be sold but also to be made by any not being of their Society The penalty imposed by this By-law is not warranted by the Law nor by their Custom for that ought to be reasonable and ought to be exprest to the end that the Court may judg whether it be reasonable or not and therefore it is resolved in Wagons Case That the Pain ought to be reasonable 1. In respect of the manner thereof and therefore it ought not to be by imprisonment for that is against Magna Charta cap. 29. as it was adjudged in Clarks Case
5 Rep. fol. 64. 2. In regard of the quality and therefore it is much debated in Wagons Case if the penalty of 5 l. were reasonable or not but here no certain penalty is set down but left to the discretion of any of the Shoomakers of Exeter and that is against the course of all Laws for when a Law is made it is necessary that the penalty thereof should be known to the end men might not offend But admitting this Order to be good yet have not the Defendants pursued the same in the taking of this Distress and that for two Reasons They have distrained before their time for the Order is That if any refuse to pay the sum assessed that then upon due proof thereof they may distrain c. and then they plead that the refusal of the Plaintiff to pay the same was duly proved before the Master and Wardens which is insufficient for when it is said upon due proof this is intended upon proof by Verdict as in 10 Ed. 4. 11. On a Bond with condition that if the Obligor proves that it was the will of A. that B. shall make an Estate to the Obligor c. this proof must be by Verdict but if it be to be proved before J. S. there it is sufficient to produce witnesses that will testifie the same and so in the fourth and fifth of Queen Mary where Buckland was bound to the Lord Ewers to produce before the said Lord sufficient witnesses to discharge a certain debt due by B. to the Lord and he pleaded that he produced W. and A. before the said Lord and that they proved that he did not ow the said Debt and agreed to be no good Plea because he did not shew how the proof was made before the said Lord. So that this Plea is utterly insufficient 1. Because no such proof can be made before the Master and Wardens as is intended by the Order 2. Because the Defendants have not shewn how the proof was made so that the Court might judg whether it were sufficient or not and so in 22 Ed. 4. 40. the Lord Lisles Case upon a Bond that if the Defendant shewed sufficent discharge of a Rent c. who pleaded that he did offer to shew a sufficient discharge and agreed to be no Plea for he ought to shew what discharge that the Court might judg thereof So in the ninth Report Case of the Abbot of Strata Marcella fol. 34. in a Quo Warranto the Defendant pleaded that the Abbot had and used divers liberties which he could not have without a Charter and resolved no Plea unless by reason of the Statute of the 32 of H. 8. cap. 20. for reviving of Liberties The Order is That upon refusal to pay the penalty and upon proof thereof the Master c. may enter into the House Booth Shop Ware-house or Cellar of the Offendor and there to distrain any of his goods c. And the Defendants have not averred that these goods were taken in any of the said places but onely at the City of Exeter Judgment And at last it was adjudged that the Plea was not good A TABLE OF THE PRINCIPAL MATTERS Contained in this BOOK Action and what words bear Action ACtion brought by a Master for beating his servant not good without saying per quod servitium amisit 48 Where no particular averment need to be in a Declaration for scandalous words 60 Thou and Waterman did kill thy Masters Cook good action ib. Grant to one against whom an action lies not to sue him within a year not good 117 Advowson The nature of it and how and in what manner to be granted 95 96 Affinity and Consanguinity Who shall be taken to be proximus Consanguinieus in a Devise 15 Appearance Where to be in person and where by Attorney 73 74 Where the Husband shall appeare alone and where with his Wife 74 Arbitrement Where the Arbitrement in part shal be a good award for that part although the agreement be to end all controversies 90 91 Authority and Licence To revoke how to be performed 21 Authorities and Licenses strictly to be performed 114 115 License not to be assigned over ib. Ayd Who shall have ayd of the King 87 88 89 Baron and Feme WHere the Husband shall appear alone his Wife being within age and where she shall appear by her Guardian with her husband 74 75 Vid. Appearance Buying and selling Things sold and warranted by the Vendor to be good In what cases good 127 Diversity between things necessary and not necessary as to the warranting of them 128 By-Law How a Custom to make By-Laws to restrain a legal Trade or Art shal be good and how not 140 141 Common WHat priviledge the Owner of the soil hath in a Common and what priviledge the Commoner hath 5 10 Vid. Prescription Remedy for him that is disturbed of his Common 10 Commoner may distraine damage feasant ib. Prescription to hunt and kill Conies in a Common not good 11 Prescription of Common in a Forest Vid. Prescription Condition and Limitation WHat time shall be limited in Law to make an estate upon Condition 41 Conspiracy Where Jurors cannot be said to be guilty of Conspiracy Vid. Jury Conspiracy cannot be where the Indictment is insufficient 132 Copyhold What shall be taken to imply an admittance 82 Copyholder necessary to be admitted and what estate he hath without admittance 82 83 Where the estate surrendred remains until admittance 84 Court and Processe in Courts Records of a Court the effectuall proofs of the Law of things tried in that Court 21 Presidents and Costome of a Court makes a Law in that Court ib. Devises Testator and Executor c. WHere words of limitation comming after the estate in a Devise shall abridge the estate devised 1 2 3 Devise to a man and his heirs quod si contingat c. where those words shall make a limited fee or estate Tail or other estate 3 Where the Act of the Executor shal not be said to be the Act of the Testator 47 Where an Executor shall not have choice to take as a Devisee 54 Where the assent of the Executor to the devise of the Land shall not be accounted any Execution as to the Devise of the Rent out of the same Land and where otherwise 55 Where a perpetual charge devised to be paid out of Land shall make the party that is to pay the same tenant in fee-simple 85 How far the intent of the Devisor shall be admitted and how largely observed 85 105 106 135 Dower Certainty ought to be in the demand of Dower as wel as in the writ 56 Ecclesiastical Persons WHere the confirmation of the Patron and Ordinary of a charge made by the Incumbent is good and where not 95 Leases made by the Incumbent and confirmed by Patrons or others where good and where not ib. Leases made by the Incumbent which are void and what are voidable and
and after dyeth or decayeth in his Estate his Co-trustees shall not be charged or be compelled in this Court to answer for the receits of him so dying or decayed unless some purchase fraud or evil dealing appear to have been in them to prejudice their trust for they being by Law Ioyntenants or Tenants in common every one by Law may receive either all or as much of the profits as he can come by And it being the case of most men in these days that their personal Estates do not suffice to pay their debts prefer their children and perform their Wills they are enforced to trust their friends with some part of their real Estate to make up the same either by the sale or perception of profits and if such of these friends who carry themselves without fraud should be chargeable out of their own Estates for the faults and deficiencies of their Co-trustees who were not nominated by them few men would undertake any such trust And if two Executors be and one of them waste all or any part of the Estate the Devastavit shall by Law charge him onely and not his Co-executor and in that case Equitas sequitur Legem there having been many presidents resolved in this Court that one Executor shall not answer nor be charged for the act or default of his companion And it is no breach of trust to permit one of the trustees to receive all or the most part of the profits it falling out many times that some of the Trustees live far from the Lands and are put in trust out of other respects then to be troubled with the receit of the profits But his Lordship and the said Iudges were of opinion that if two Trustees were and one of them without warrant of the party that trusteth him or of a Court of Equity assigneth his Estate and the Assignee doth receive the profits and becometh non-solvent he that made the Assignment shall answer it for him but the other original Trustee shall answer for no more then what he receiveth himself because the Assign cometh not in by him or his assent or appointment and that in case if the original Trustee that did not make the Assignment receive the whole profits and become non-solvent neither the Assignor nor the Assignee shall be answerable for them and if an Obligation be made to two in trust and one of them release the whole debt as by law he may this shall not charge his companion for any part and albeit in all presumption this case hath often happened yet no president hath been produced to his Lordship or the Iudges that in any such Case the Co-trustee hath been charged for the act or fault of his companion and therefore it is to be presumed that the current and clear opinion hath gone that he is not to be charged it having not till of late been brought in question in a case that by all likelyhood hath frequently happened But his Lordship and the said Iudges did resolve that if upon the proofs or circumstances the Court be satisfied that there be Dolus malus or any evil practice fraud or ill intent in him that permitted his companion to receive the whole profits he may be charged though he received nothing And his Lordship and the said Iudges did declare that in this particular Case they did not finde any material proof against Mr. Townley to make his case worse then the general case aforesaid but rather better except onely for the three half years Rent which he joyned in acquittance with Mr. Forster for the receit of the profits alone by Mr. Forster is no breach of trust in Mr. Townley and Mr. Challoner when he came of full age took Mr. Forster for his Debtor And therefore it is ordered and decreed That so much of the said Decree as chargeth Mr. Townley with any more of the profits then the three half years for which he joyned in acquittance shall be reversed but as for those three half years profits if the same were not disbursed or imployed for the use of Mr. Challoner then for so much thereof as hath not been so disbursed or imployed the said Complainant Mr. Townley ought to be answerable and the Defendant may call the Plaintiff before Mr. Page one of the Masters of this Court to audite the account touching these three half years if any difference be thereabouts And lastly it is ordered that the Recognizances given on the Plaintiffs part to perform the Order of this Court be discharged Trinit 13 Jacob. Allen against Wedgwood IN an Action of Debt on a Bond of 100 l. made the 23 of April 1610. The Defendant demands Oyer of the Obligation and Condition which was That if the Defendant did perform all and every such Article and Articles of Agreement and every parcel and particular point thereof being dated the day of this Obligation taken between the Defendant and Plaintiff with the consent of both parties concluded and agreed upon and sealed with the seal of the Defendant that then the Oligation to be voyd And he demanded also Oyer of the Articles which were as followeth Memorandum It is agreed between the Defendant of the one part and the Plaintiff of the other part and the Defendant doth condescend and agree for him his Heirs Executors Administ c. with the Plaintiff his Heirs Executors c. in manner and form following Impr. The Defendant for him his Heirs c. doth demise set and to farm let to the Plaintiff his Heirs Executors c. the Mannor-house or Messuage called Sowdley Hall with all the Lands which were sometimes in the Tenure of Reynold Sowdley with all the appurtenances thereunto belonging being in great Sowdley in the Parish of Chosendine in the County of Salop. Item The Defendant is to make a Lease of the said Mannor for term of three lives to the Plaintiff or his Assigns and they to enter after the expiration of such Lease or Leases as are lawfully made by Iohn Sowdley if any be Item If there be any Lease or lawful bargain made thereof that then at the expiration thereof the Plaintiff is to nominate the names of three such persons as shall be expressed in the aforesaid Lease which is to be made to the said Plaintiff by the said Defendant Item If there be none made thereof that then the Plaintiff is to enter upon the said Mannor at the Anunciation 1612. Item The Plaintiff is to have and enjoy the same paying yearly during the three lives for and according to the Rent it was set for in the time of the Father of Iohn Sowdley Item The Plaintiff is to pay the Defendant when the said Plaintiff or his Assigns shall enter upon the said Mannor 20 l. for a fine Item The Defendant may at any time so long as he is unmarryed resort unto the said Mannor at such time as the Plaintiff shall inhabit there or have the profit thereof and finde good entertainment for
as of his Freehold whereupon Issue was joyned and found for the Plaintiffs and adjudged that they should have execution against Sir John Whitbrook whereupon the Sheriff was commanded to deliver the said lands to the Plaintiffs in execution and the sixteenth of June 12 Jacob. the said Tenements were found to the value of eighty shillings and were delivered to the said Executors in execution The twenty seventh of March 11 Jacob. Hanging the Writ of Scire facias the said Sir John Whitbrook did demise to the Defendant one Messuage and ten acres of Meadow parcell of the premisses Habendum from the said twenty seventh day for the term of three years by force whereof he entred and was possessed The sixteenth of June 12 Jacob. the said Executors did enter into the Tenements in the Inquisition mentioned whereof the said Messuage five acres of Land and ten of Meadow are parcell and did out the Defendant The one and thirtieth of August 13 Jacob. Robert Faldoe made the Lease to the Plaintiff and they found the Ejectment and prayed the advice of the Court. And I conceive Iudgment ought to be given against the Plaintiff For that a Tenant in Taile cannot charge the Land no more then he can alien 3 Ed. 3. 46. so in the 18 Ed. 4. 5. 21. If Tenant in Taile do sell the Trees and dye the Vendee cannot have them and the 17 Ass 21. Tenant in Tail acknowledgeth a Statute and dies the Issue enters and the Conusee does sue execution and enters and the Issue brings an Assise and recovers because this is a Disseisin to him and 11 H. 7. 21. 31 Ed. 3. 22. 14 Ass 3. Tenant in Tail grants a Rent and dies and the Issue enfeoffs a stranger adjudged that he shall hold the Land discharged for it was discharged by the entry of the Issue and 26 Ass 38. If Tenant in Tail doth charge the Land and dye and the Issue enters and pâ—yes the Rent and then after confirms the Rent this is good But in Brook Grants 73. contrary for the charge was avoided by the entry of the Issue But admit that this Recognizance shall bind the Issue in Tail yet it shall not bind the Termer but he shall avoid it 1 H 7. 9 7 H. 7. 11. and in the 30 Assise 10. the Tenant pleads recovery by Action tryed against a stranger and did aver the Estate of the Ancestor of the Demandant to be between his Title and the Recovery the Demandant said that the stranger was enfeoffed with Warranty and did not plead this and so did Fauxesie and Iudgment was awarded for him And although that this Lease was made after the Teste of the Scieri facias it is not materiall because the Lessor had good power to make a Lease and the Land was not subject to the execution and therefore the Lease here is good and cannot be avoided but only by the default of the Lessor in not pleading the Estate-tail and that is especially aided by the Statute because the Statute does aid the Lessee against such fâ—igned Recoveries against the Lessor and it is no Recovery untill the Iudgment had at which time the Lessee had a good Lease not subject to the execution 21. H. 6. 13. 14. He who comes to the Reversion hanging the Praecipe quod reddat against the Tenant for life shall be received by the Statute of Westm 2. cap. 3. and 16 H 7. 5. In a Writ of Entry or Disseisin he in the remaiâ—der does pray to be received the Demandant traverseth that he hath nothing in Reversion at the time of the Writ purchased and could not for if he purchased the Remainder hanging the Writ he shall be received And Hill 14 Jacob. All the Court did agree Judgment that the Lessee for the Lease made after the Verdict against the Issue in Tail could not falsifie wherefore Iudgment was given for the Plaintiff Penson against Mootham IN an Action of Covenant for that by Indenture Tripartite dated the fifth Decemb. 12. Jacob. It was between Abraham Baker by the name of Abraham Baker Owner of the moyety of a Ship called the Grissell of L. and of the Ship called the Peregrine of L. and of a Pinnace called the Hopewell of L. on the first part and the Plaintiff by the name of H. P. Owâ—er of the other moyety of the said Ships and Pinnace on the second part and the Defendant by the name of Ja. Mortham Nautestrategi dicti Itineris Anglice generall of the said Voyage N. N. B. W. and D. E. by the names of N.G. Naute magister dictae navis vocat le Peregrine B. W. Naute magister dict navis vocat the Grissell and D. E. Naute Magister of the said Pinnace and severall persons named in a Schedule annexed to the said Indenture on the third part It is testified and doth appeare that the said Owners had furnished and set forth and the said Victualer had victualed the said Ships as well for Trade as for Discovery and had delivered them to the said Generall Masters and Officers pro itinere faciend in such manner and to such an Island in the West-Indies or otherwise as it should be most profitable to the said parties at the discretion of the said Generalls and according to certain Articles of the Commissioners bearing date with the said Indenture and after their Voyage to return to the Port of London And that the said Generalls and each of the said Masters and Officers severally for each ones proper and severall part and not the one for the other did Covenant for themselves their Executors and Administrators with the said Owners severally and their severall Executors c. in manner c. and that they the said Generalls or the severall Masters and Officers their Executors or Assignes at any time during the said Voyage should go beyond the Cape of Good hope nor should do or commit any spoyle or losse to any of the Subjects of our Lord the King nor to any other person or persons being subject or in subjection to any Prince or Principality being in league or amity with our King nor shall do any thing whereby any detriment prejudice trouble or damage may come to the said Ships or Pinnace or any of them or to the said Owners or any of them respectively Breach 1 And that although the Plaintiff had performed all c. yet the said D.E. and the Commissioners aforesaid in the said Ship called the Hope-well during the said Voyage to wit the eighth day of March upon the high Sea neer the Isle of Saint Jago by force and armes did take and spoyle one Spanish Frigot laden with Rice c. which Sip and Goods were the Ship and Goods of divers persons who were Subjects to the King of Spaine the which King then was and yet is in amity and league with the King and the Defendant and the other Commissioners comming to the said Island did divide the said Goods amongst
did deliver them to the said William Sadock and that it was then well known to the said William that the said Iewels were artificial and counterfeit and that the Defendant did command the said William that he should transport the said Iewels into Barbary where he knew the Plaintiff did reside and did further give authority to the said William to sell the said Iewels to the then King of Barbary or to any other person that would buy them And the Iury found that the said William went into Barbary and there knowing the said Iewels to be artificial and counterfeit did shew them to the Plaintiff for good and true Iewels and did request the Plaintiff to sell and utter them to the said Mully Sydan for good and right Iewels for the Defendant affirming to the Plaintiff that the said Iewels were worth 14400 Ounces of Barbary Mony amounting to 810 l. English Mony and that the Plaintiff not suspecting the said Iewels to be artificial and counterfeit but conceiving them to be good and true Iewels did receive them of the said William and presented them to be sold to the said King as good and true Iewels and procured the said King to buy them not being of the value of 3000 Ounces of Barbary Mony amounting to 168 l. 15 s. of English Mony for 14400 Ounces of Barbary Mony amounting to 810 l. English Mony and the Plaintiff then and there did receive the said sum of the said King for the said Iewels for the Defendant and payd the same to the said William who after the receit thereof immediately conveyed himself out of Barbary to London and did there pay the said sum to the Defendant and that afterwards the said King perceiving the said Iewels to be artificial and counterfeit caused the Plaintiff to be arrested and imprisoned and detained him in prison three months until he had repayd to the said King the said 14400 Ounces of Barbary Mony for the said Iewels and that the Plaintiff did give notice to the Defendant of all the said premisses and requested him to repay him the said sum as the Plaintiff had alledged But they said that the Defendant did not command the said William that he should conceal the pravity or counterfeiting of the said Iewels or that he should repair to the Plaintiff and shew him the said Iewels for good and true Iewel and to require the Plaintiff to sell or utter the said Iewels to the said King or other person that would buy them and that he received the price for them as for good and true Iewels as by the Declaration is supposed And if it seem to the Court upon the whole matter that the Defendant is guilty they found for the Plaintiff and did assign 642 l. damages and four Marks costs and if not then they found for the Defendant And I conceive that Iudgment ought to be given against the Plaintiff and that this Action does not lie against the Defendant for four Reasons It does appear by the Plaintiffs own Declaration that these Iewels were not counterfeit but onely of a less value then the mony for which they were sold for although the plaintiff in his declaration termeth them to be counterfeit Iewels yet he acknowledgeth them to be worth 168 l. 15 s. or as neer that value as may be for in as much as he averred them not to be of the value of 168 l. 15 s. this being his own averment it shall be taken most strongly against himself scil that they were very near that value and if they were of that value it appears to the Court that they could not be counterfeit although they were not of so great value as was payd for them And the value and estimation of Iewels is always as the Buyer will account of them and esteem them as Michaelm 38 and 39 Elizab. Common Bench where Davenport brought an Action on the Case against Sympson wherein the Plaintiff declared that he was possest of an Ewer of silver to the value of 500 l. and did give the same to A. to transport beyond Sea and to sell the same there and to give an account thereof to him and that A. had broken it and converted it to his own use whereupon the now Plaintiff brought his Action on the Case against A. ad damnum 500 l. whereupon they were at issue and the Defendant did maliciously depose that it was worth but 180 l. whereupon the Iury gave but 200 l. damages And adjudged that the Action would not lie and chiefly because that the value of such things are so uncertain that some value them higher then others Also the Verdict doth vary from the Declaration in three material points 1. The Defendant doth not direct his Servant to the Plaintiff 2. The Defendant did not command him to conceal the counterfeitness of the Iewels 3. He did not command the Servant to sell them as good Iewels No Action on the Case lies although this fact had been done by the Defendant himself as 11 Ed. 4. 6. If one sells Clothes and doth warrant them to be so long and they are not an Action on the Case lies but there ought to be an express warranty and that ought to be made at the time of the sale or else no Action lies And F. N. B. 94 C. If one doth sell a Horse and warrant him to be sound and he is not an Action lies so if one sells corrupt Wine and warrants it to be good an Action lies but unless he warrant the Horse or Wine to be good no Action lies for the Buyer is at his peril and his eyes and his taste must be his judges in this case and in 7 H. 4. 14. The Plaintiff declared that the Defendant sold corrupted Wine to him knowing the same to be corrupted the Defendant said that he gave the Plaintiff a taste of the Wine and that he agreed that it was good Wine and adjudged the Action would not lie and 13 H. 4. 1. If one sells a Horse that is blinde and warrants him to be sound no Action lies because I may see whether he be blinde or not but otherwise where he hath a disease in his body which I cannot discern Montague He ought to have shewed that he was legally imprisoned and compelled to pay the Mony for otherwise he cannot have an Action as in 13 H. 4. 6. A diversity in sale of things between those things that are necessary and not necessary as Iewels also the said William was authorized by the Defendant to sell the Iewels and he cannot authorize another and therefore that which the Plaintiff hath done was without any warrant from the Defendant The Defendant did not require his Servant to conceal the counterfeitness of the said Iewels nor to request the Plaintiff to sell them and therefore all that the Servant did to the Plaintiff was of his own voluntary act for which he must answer and not his Master for a Master shall answer for no