Plaintiff SMith versus Bolles Sheriff of London Pasc 9. Jac. rotulo 1353. In case for that the name of the Sheriffs were omitted on the venire fac And for that cause one Judgement given for the said Smith was reversed by Writ of Error And for that Misprision Smith brought such Action of the Case HArris versus Adams If thou hadst had thy Right thou hadst been hanged for breaking of Paches House the words not actionable Thou art a Thief thou hast stollen the Town-beam meaning the Town of Wickham Serjeant Hutton of opinion the Action would lie STephens Attourney versus Battyn for words Thou hast cozened M. Windsor of his Fee and I will sue thee for it in the Star-chamber for that thou didst not come for Windsor Judgement for the Plaintiff Trin. 11. Jac. BRadley versus Jones Trin. 11. Jac. rotulo 3390. The Plaintiff brings his Action upon the Case for unjust vexation The Defendant had exhibited Articles against the Plaintiff to have the good Behaviour against him and took his Oath before Doctor Cary one of the Masters of the Chancery and afterwards the Defendant ceased prosecution there and obtained from the Kings Bench a Supplicavit to have the good Behaviour there And the Court was of opinon that the Action would lie because he prosecuted in the Kings Bench and not in the Chancery But the Court said that if he had prosecuted in the Chancery though the Articles had been scandalous yet no Action would have lyen for a man shall not be punished for mistaking the Law for he may be misadvised by his Counsel BRooks versus Clerk Pasch 11. Jac. rotulo 307. Action brought for these words His Son Brooks hath deceived me in a Reckoning for Wares And his Debt-book which he keepeth for Sale of Wares in his Shop is a false Debt-book and I will make him ashamed of his Calling Hubbart and Nichols against the Plaintiff and Warburton for the Plaintiff Pasch 11. Jac. rotulo 2147. Action of the Case brought for a Nusance for building the Defendants House so near the Plaintiffs that a great part of it superpends And the Plaintiff in the conveying his Title shews a Lease for years made to him if the Lessor should so long live and doth not aver the Life of the Lessor but saith that by vertue of the Demise the Plaintiff hath been and then was thereof possessed and adjudged sufficient MOrton versus Leedell Hill 10. Jac. rotulo 1783. Action of the Case for these words He meaning the Plaintiff is a lying dissembling Fellow and a mainsworn and forsworn Fellow And Judgement for the Plaintiff after divers motions THomas Attourney versus Axworth Pasch 11. Eliz. rotulo 352. Action of the Case for these words This is John Thomas his writing and he hath forged this Warrant meaning a Warrant made by Buller Sheriff of that County upon a Capias prosecuted out of the Court of Common Pleas by M. H. against the Defendant and directed to the Sheriff ROw versus Alport Mich. 11. Jac. rotulo 1527. Action upon the Case brought for suing in the Admiral Court for a thing done upon the Land and not upon the high Sea BRay versus Ham Trin. 13. Jac. rotulo 1994. Action of the Case for these words Thou art a cozening Knave and thou hast cozened me in selling false Measure in my Barley and the Countrey is bound to curse thee for selling with false Measure and I will prove it and thou hast changed my Barley which I bought of thee And the Plaintiff sets forth in his Declaration that he was Bayliff to W. C. and H. C. of certain Lands in P. for three years and during the said time had the care and selling of divers Corn and Grain growing upon the same Land and after Triall and Verdict for the Plaintiff it was moved in Arrest of Judgement that the Action would not lie but the Court were of a contrary opinion and Judgement was given for the Plaintiff BRown versus Hook Pasch 13. Jac. rotulo 234. Action of the Case for these words Brown is a good Attourney but that he will play on both sides And it was moved in Arrest of Judgement that those words would not bear an Action but the Court held they were actionable but did not give Judgement because the Plaintiff did not shew in his Declaration that the words were spoken of himself STober versus Green Mich. 11. Jac. rotulo 1â91 Action of the Case for these words Thou didst keep and sell by false Weights and in 24. s. bestowing thy Weights were false two Ounces and thy Man will be a Witness against thee and I will prove it The Defendant pleaded that the Plaintiff occupied one Shop and kept unlawfull Weights and by such Weights sold by reason whereof he said these words Videlicet Thou didst keep and sell by unlawfull Weights and in 24. s. bestowing thy Weights were false an Ounce and three quarters and thy Man c. And traversed the words in the Declaration and it was adjudged a naughty Traverse for that the words in the Bar and justified by the Defendant are actionable AGar versus Lisle Mich. 11. Jac. rot 318. Action of Trover brought in York-shire the Defendant justifies for Toll at Darnton in Durham and traverse c. The Court doubts of his Traverse being onely for the County of York whereas it ought to be any where else generally And Hobart said the Bar was nought because in the justification no conversion was sufficiently alleadged And note that if a man doth a thing which is allowable by the Law as to distrain Cattle and impound them that is no conversion but if he work them it is a conversion AVstin versus Austin Trin. 10. Jac. rotulo 3558. In Troyer the Defendant pleads that before the time that the Plaintiff supposes the Goods to come to the Defendants hands one S. A. was possessed of the Goods and amongst other Goods sold them to the Defendant but kept them in his own hands and afterwards sold them to the Plaintiff by reason whereof the Plaintiff was possessed and afterwards looses them and they came to the Defendants hands who converts them as it was lawfull for him to do The Plaintiff demurs and it was held a naughty Bar for it amounts to a Non cul And Cook doubted whether the Court should compell the Defendant to plead Non cul or award a Writ of Injury And a Writ of Inquire was awarded ALlyns versus Sparkes al. Trin. 8. Jac. rotulo 1606 Action of the Case brought for stopping up the Plaintiffs way and the Plaintiff declares that one H. B. was seised of the Mannour of M. of which two Acres were customary Land and that the Lord of the Mannour had for himself and his customary Tenants for the said two Acres a certain high-way in by and thorow c. And that the Lord of the Mannour granted the said two
Iac. against Invocation c. for these words The Devil appeareth to thee every night in the likeness of a black Man riding on a black Horse and thou conferrest with him and whatsoever thou dost ask he doth give it thee and that is the reason thou hast so much money and this I will justifie Judgement for the Plaintiff In Trover Judgement by Nihil dic and Exception taken to the Declaration to stay the filing the Writ of Inquiry because no day of the conversion was in the Declaration and by two Judges held naught Mich. 14. Iac. PArker versus Parker Hill 12. Iac. rotulo 426. In Trover after a Verdict it was moved in Arrest of Judgement that the imparlance Roll was entred with Spaces for the possession and conversion but both those Spaces in the Issue were filled up and held good The Imparlance was entred Mich. 12. Iac. rotulo 547. WHitepain versus Cook Pasch 12. Iac. For words Thou art a Rogue and I will prove thee a Rogue no Judgement STone versus Bates A man may well incourage one that was robbed to cause the Felon to be indicted and accompany him to the Assizes and this shall be lawfull for to do without incurring the danger of an Action upon the case upon conspiracy but if he knew that he was not robbed then he is in danger of the Action upon the case COpe and his Wife administratrix Plaintiffs versus Lewyn Trin. 12. Iac. rotulo 1714. An Action upon the case brought upon a promise made to the Intestate and in the Court omits to shew the Administration and after Triall that Fault moved in Arrest of Judgement and the whole Court was of opinion that he should not have his Judgement for it did not appear that he was Administrator for at the Common Law no Administration lay but the Ordinary ought to have the Goods HArvey Attourney versus Bucking Mich. 12. Iac. rotulo 842. Action of the case for slanderous words He meaning the Plaintiff shewed me first a Bill of fourty pounds without a Seal meaning the said Bill by the said E. as aforesaid sealed and delivered and afterwards he shewed me the same Bill with a Seal and he meaning the Plaintiff hath forged the Seal of the same Writing meaning the Seal of the said Bill by the said E. as aforesaid sealed and delivered The Defendant traverses the words and a Verdict for the Plaintiff and it was alleadged in Arrest of Judgement that the Declaration was naught for that it did not directly appear that there was any communication between the Plaintiff and Defendant concerning the Bill but onely in the inuendo which will not maintain the Action and Judgement arrested MOrton versus Leedall Hill 10. Iac. rotulo 1783. Action upon the case for these words He is a lying and dissembling Fellow and a mainsworn Fellow And a Verdict for the Plaintiff And afterwards it was moved in Arrest of Judgement that the Action would not lie but at length Judgement was given for the Plaintiff And Serjeant Hutton cited the like case adjudged in t Barnes He is a mainsworn Villain ãâã Skipwash SKipwash versus Skipwash Hill 14. Iac. rotulo 3472. Action upon the case that whereas the Defendant in consideration that the Plaintiff would marry one A. B. did assume to pay the Plaintiff twenty pounds when he should after the Marriage be thereunto requested The Plaintiff alleadges no special Demand and that Fault was moved in Arrest of Judgement Hobart and Wynch were for the Plaintiff Warburton for the Defendant JOtham versus Ball Hill 12. Jac. rotulo 1920. Action upon the case for slanderous words Videlicet Your Master Euseby meaning the Plaintiff is a Rogue a Rascall and Forger of Bonds the Plaintiff laid a Colloquium between the Defendant and one R. G. And after Verdict moved in Arrest of Judgement for that it did not expresly appear that the said R. G. at the time of speaking the words was Servant to the Plaintiff and Judgement was stayed by the Court. COddington versus Wilkin for words Trin. 12. Iac. He is a Theif and why will you take a Theifs part spoken 1. Martii 10. Iac. The Defendant justifies the words because the Plaintiff stole Sheep The Plaintiff by way of replication sets forth a general Pardon granted such a time and further saith that if any Felony were committed it was before the general Pardon made and shews himself to be a Subject and no person excepted in the Pardon The Defendant demurs The Court were of opinion that by the Pardon both the Punishment and Fault were taken away and that the wrong was done to the King by the Common Law and the King being the supreme Head if he pardons the party is cleared of the wrong As if a Villain be infranchised he from thenceforth is no Villain Note if a man upon good consideration promise to become bound to another by his Obligation to do an Act and if he do not become bound Action upon the case will lie against him and the Plaintiff is not bound to tender him an Obligation but the Defendant hath took it upon himself to do it RIchards versus Carvamell Action of the case brought and counts for non-payment of money at the Plaintiffs next coming into the County of Somerset and avers that such a day he came into the County of Somerset Videlicet apud T. in Com. Somerset and that the Defendant though often requested hath not paid And Exception taken because the Plaintiff did not alleadge in his count that he gave notice to the Defendant when he came into the County of Somerset but not allowed and Judgement given for the Plaintiff And note when a man assumes to pay money or do any thing upon condition the Defendant may take Issue upon the condition and needs not plead Non assumpsit but if he pleads Non assumpsit then he confesses the performance of the condition which mark AVstin versus Jarvis Trin. 13. Jac. rotulo 2180. The Plaintiff declares that such a Day and Year he bought of the Defendant a Horse for a peice of Gold of the value of 22. s. by him to the Defendant then in hand paid and for a 11. l. to be paid to the Defendant at the Day of Death or Marriage of the Plaintiff which should first happen for payment of which 11. l. the Plaintiff should bring to the Defendant one sufficient man to be bound together with the Plaintiff to the Defendant the Defendant in consideration thereof assumes to deliver the said Horse to the Plaintiff when he should be thereunto requested and the Plaintiff avers that such a Day he brought the Defendant one sufficient man Videlicet I. A. de B. Yeoman to be bound together with the Plaintiff to the said Defendant for the payment of the said 11. l. and shews that he requested the Defendant to deliver the said Horse yet the Defendant hath not delivered
omit to take them every other year I cannot take them in the third year But for Rent and such other things that are in the Render I ought to have it when ever I demand it as it best pleases me And note that in such case one prescribed for eight Loads of Wood to be cut and taken as appertaining to a Messuage which was held naught by the whole Court for the Prescription should be laid for Estovers to be imployed upon Repairs of the said Messuage or to be spent in it for a man cannot prescribe to have a Prescription to come and cut down my Wood which is as much as I that have the Free-hold can do For the claim to take and sell my Wood cannot be good And the Court held it a good Prescription to prescribe to have Common every other year although you shew not the Commencement as to shew what time of the year when it begins If a man hath Common of Pasture in divers Closes and parcels of Ground where he hath some Land of his own there and in all other cases where one is to prescribe he need not to make his Title to every peice but to say he hath Common in loco in quo c. in t alia and need not to speak of the rest of the Land in the residue of the Feild because he hath Land of his own Common appendant belongeth to arrable Land not to Pasture Land If two Issues be joyned and in the awarding the Venire facias these words Videlicet Quoad triandum tam exit istum quam praedictum alium exit superius junct were omitted and after a Verdict such Default was moved in Arrest of Judgement and the Exception over-ruled and held good notwithstanding that omission The whole Court were of opinion that local things shall not be made transitory by laying the Action in a forrain Shire as for Corn growing in one Shire and an Action of Trover brought in another COmes Cumbr. versus Comitem Dorset It was moved by the Defendant that whereas the Plaintiff had prosecuted a Distring Jur. and onely eleven of the Jury appeared and the Inquest remained to be taken for want of Jurors and that at such time neither Plaintiff nor Defendant desired a Tales and afterwards the Defendant in another Terme prayed a Tales of that Writ which the Plaintiff had prosecuted and the Court denied to grant it because he prayed not a Tales when the Distress was retorned and if he would have a Tales he must purchase anew a Plur. distring and if then the Jury fill not the Defendant may pray a Tales and the Court ought to grant it And note upon the first Habeas Corpus the Defendant shall not have a Tales but in Default of the Plaintiff IF the Chamberlain of the County Palatine of Chester make an insufficient Return to the Court of Common Pleas upon a Writ issued out of that Court the Sheriff shall be amerced because the Sheriff is the Officer responsible to the Court. The King hath power to make and create a Leet anew where none was before A Distress is incident of Right but in a Court Baron a Prescription must be laid to distrain J. Rogers versus Powell My Lord Cook held that the Surrender of a Copy-hold in Tail is not any Discontinuance and Justice Foster of the same opinion In Doctor Husseys case in a Ravishment de gard wherein the Judgement is penal the Habeas Corpus was denied by the Court to be amended being a blank Writ after a Verdict but was adjudged Error For the Proviso in the Statute of Jeofailes 18 Eliz. excepts Actions upon penal Statutes One Jury was impannelled of the Town of Southampton and called to the Bar and made Default and the men of that Town shewed to the Court a Grant made to the Inhabitants of that Town that no Return should be made of the men of that Town to be of any Jury and prayed the Allowance of their Charter and the Court appointed them to plead their Charter and it was done accordingly TRier versus Littleton A special Verdict was found whether Fraud or not Fraud and the Jury did not finde the Fraud expresly but they found Circumstances that the Deed might seem thereby to be fraudulent but the Court will not adjudge it Fraud where the Jury do not expresly finde the Fraud for the Judges have nothing to do with matter of Fact and so by the whole Court no Fraud Tenant for Life Remainder for Life Remainder in Tail Remainder in Fee the first Tenant for Life suffereth a Recovery the Remainder in Tail is barred although the second Estate for Life be no party Baron Feme seised of the Wives Land for Life of the Wife Remainder to the Husband and Wife in Tail and afterwards the Husband doth bargain and sell the Land by Deed inrolled and a Precipe is brought against the Bargainee and he voucheth them in Remainder this is a good Recovery to barr the Estate Tail If an Information be brought against three upon the Statute of Maintenance and two of them appear and the third doth not appear the Plaintiff may declare against the two that do appear before the other appears for it is but a Trespass and Contempt as in Trespass and Conspiracy but it is otherwise in Debt upon a joynt Contract for there the Plaintiff cannot declare against one untill the Process be determined against the other by the opinion of the whole Court If Judgement be entred in Trespass of Oct. Hillarii the Writ to inquire of Damages may bear teste of any other Return of that Terme besides of Octab. Hillarii for the Terme is as one Day and so hath been adjudged upon a Writ of Error in the upper Bench but it is otherwise held in the Common Pleas. If a Bargain and Sale be void in part it is void in all If an Officer or priviledged person of the Court of Common Pleas sue another priviledged man of any other Court whatsoever yet he of the Common Pleas that first sued shall force the other priviledged person to answer in the Common Pleas but if a priviledged man be sued with another as Executor no Priviledge lies Summons and Severance lies between Executors Plaintiffs and if one of the Executors be outlawed or excommunicated he may be demanded and if he comes not shall be severed by an award without Process after he hath appeared and the other shall proceed without him but if he had not appeared then Summons and Severance shall issue out against him FLetcher versus Robson An Extent upon a Statute Merchant issued out against Robson the Cognisor and the Sheriff returned that the Cognisor was possessed of divers Goods and seised of Lands which he delivered to the Cognisee and that the Cognisee accepted of the Land and because the Sheriff did not return that he had not any other Lands Goods or Chattels it was
Court onely which may not step the âudges mouthes but that they ought to judge according to Law and this was the opinion of Popham Yelverton Gaudy but Fennor doubted for he thought the awarding of the Capias oneây erroneous and not void and Serjeant Tanfield and the Attorney General shewed a precise Judgement in the Case 21 Eliz. in the Exchequer Clâment Pastons Case against whom an Action of Debt was brought for suffering one to escape who was taken by vertue of a Capias upon a Recognisance and the three Judges held strongly their opinion PVdsey versus Newsam Mich. 1. Jacobi An Action of Debt brought upon an Obligation for five hundred pounds with a Condition that if the Defendant before Mich. do make knowledge and suffer c. all and every such reasonable Act and things whatsoever they be for the good and lawfull assuring and sure making of the Mannour of D. to J. S. and his Heirs that then c. The Defendant pleads that before Mich. the Plaintiff had not reasonably required the Defendant to make any reasonable Act or Acts which should be for the good and lawfull assuring of the Mannor of D. The Plaintiff replies that such a Day before Mich. he requested the Defendant that he would convey and assure the Mannour of D. to J. S. according to the tenour of the Condition and upon this they were at Issue and found for the Plaintiff and it was moved in Arrest of Judgement that no sufficient Breach was assigned for the Plaintiff ought to have required one Assurance in certain which he would have had made but the Exception was over-ruled and adjudged that the Issue was well joyned and the Condition broken for by the Condition the Defendant is to make all and every Act whatsoever for the Assurance of the Mannour of D. in so much that if the Plaintiff should request one Fine Feoffment or Recovery or Bargain and Sale the Defendant ought to make all but they held he was not bound to make an Obligation or Recognisance for the injoying the Mannour for that is but collateral Security is no Assurance And when the Plaintiff requires the Defendant to convey the Mannour generally the Defend at his peril ought to do it by any kinde of Assurance and if upon such Request the Defendant should make a Feoffment of the Mannour yet if the Plaintiff afterwards request one Fine the Defendant ought to acknowledge one Fine also and so upon severall Requests he ought to make severall Assurances and so in making the Request general he had well pursued the Condition and the Defendant ought at his perilââ¦ake every Assurance by the opinion of the whole Court ELlis versus Warnes Trin. 2. Jacobi An Action of Debt brought upon a Bond for a hundred and twenty pounds and the Case upon the pleading was that Warnes was indebted to one Ader a hundred pounds upon an usurious Contract and that Ader was indebted to Ellis in a hundred pounds for which Warnes and Ader were obliged to the Plaintiff and Debt being brought upon that Obligation Warnes pleads the Usury between him and Ader to avoid the Bond Ellis the Plaintiff replies that Ader before the making the Bond was indebted to him in a hundred pounds a just and true Debt for Payment whereof VVarnes and Ader were bound to him in the Bond in Suit and that he was not in any wise knowing of the Usury between Warner and Ader and Warnes demurrs to this Plea and adjudged by Gaudy Yelverton and W. for the Plaintiff for it is not Usury in the Plaintiff but onely between Warnes and Ader to which the Plaintiff being not privy shall not be prejudiced for although the Statute of Usury is to be taken most strongly for the suppressing of Usury yet it must be between such parties as use Corruption and not to punish the innocent as the Plaintiff but if no Debt had been due to the Plaintiff before then it had been clearly Usury for there had been no lawfull Cause to make the Bond to him but onely to countenance the Corruption between VVarnes and Ader and Yelverton said that if the Defendants Plea be good then every man may be defrauded of his just Debt for if the Barr shall be good by Corruption between the Debtor and Surety to which the Creditor is a meer stranger a man may loose his Debt which is mischievous but Popham and Fennor doubted of the Plaintiffs Replication that he ought to have took a Traverse upon the Defendants Barr which ought not to be for how should he traverse a thing which could be within his knowledge and to which he was no party HArgrave versus Rogers Mich. 2. Jacobi Action of Debt brought and Bail given that A. upon eight Dayes warning shall appear to an Action to be brought by B. for the same Debt and if A. shall be condemned in the Suit and not pay it then the Bail would answer B. the Condemnation and B. brought his Action against A. in which A. was condemned and did not pay by reason whereof B. brought an Action of Debt against the Bail upon the Recognisance and set forth the Suit against A. and the Condemnation and that he had not satisfied it but shewed not that it had eight Dayes warning to appear to the Action and Fennor and Yelverton held that he need not shew it for the Condition of the Recognisance depends upon two Clauses one the Appearance at 8. Dayes warning the other is the satisfaction by the Bail if P. should not pay the Condemnation comprehended in these words And and in this Case the Action was brought upon the second Clause to wit the Default of P. because he had not answered the Condemnation and therefore needlesse to meddle with that part of the Condition But if the Action had been brought if the first Clause then B. ought to have shewed in certain the Warning to have been given by 8. Dayes but Popham Gandy and W. were of a contrary opinion and that the Plaintiff of necessity ought to shew the Warning to have been given 8. Dayes because that part of the condition is not to be performed between parties but an Estranger for A. is an Estranger and the Bail is bound as well to answer such Condemnation in such Action as shall be brought upon the eight Dayes Warning given for that is the ground of all and it is no reason that A. by his voluntary Appearance without eight Dayes Warning should prejudice his Bail but otherwise it had been if the Condition had been between A. and B. for then if A. would appear without such Warning it is his folly and no injury is done to one that is willing and according to this opinion the Plaintiff discontinued his Suit and the Defendants were ordered to put in new Bail with mark SIr Rich. Campion vers Hill Pasch 3. Jac. An Action of Debt brought upon the Stat. of E. 6. for not setting forth of Tithes
forth divers payments by him made and amongst other payments shews that he had payed to M. Fawn named in the Condition sixty pounds for a Legacy due by the Will of the said Ed. A. the payment of which sixty pounds was disallowed by that Court and by the Order of the Chancery sixty five pounds paid for not allowing the first sixty pounds to Ed. A. the Son which sixty and five pounds the Defendant had not repaid though thereunto requested and so he was damnified to which Replication the Defendant demurrs and the opinion of the whole Court after a great Debate was against the Plaintiff for the Plaintiff in his Replication had alleadged two Causes to inforce his Damage the first was that the Plaintiff in his Answer in the Chancery had alleadged the payment of sixty pounds to M. F. for a Legacy due to her by the Will and that such Allegation was rejected by the Court of Chancery and neither of those matters are certainly alleadged but by way of Implication and not expresly for he ought to have shewn that a Legacy of sixty pounds was given to M. F. by the Will of E. A. for although the Will of E. A. is recited in the Condition in the Date against which Recitall the Defendant may not be admitted to say that he made no such Will yet the Legacy given to M. F. is not recited in the Condition if not in the General against which the Defendant may take a Traverse that Eáw. A. did not bequeath such a Legacy of sixty pounds and upon that a good Issue may be taken And secondly the Plaintiff sayes that the payment of the said sixty pounds was disallowed by the Court of Chancery and doth not appear in the Replication where the Chancery was at that time to wit whether at Westminster or at any other place and it is issuable and triable by a Jury whether any such Order of Chancery were made or not for the Orders there are but in Paper and are not upon Record to be tried by Record but by a Jury and the Plaintiff perceiving the opinion of the Court against him prayed that he might discontinue his Suit which was granted by the whole Court but Quaere of this it being after a Demurrer WEaver versus Clifford Pasch 44. Eliz. rotulo 453. The Plaintiff brought an Action of Debt upon an Escape against Clifford and declares that one A. was bound to the Plaintiff in one Recognisance of a hundred pounds to be paid at a Day at which Day A. made Default of Payment and the Plaintiff sued out two Scire fac and upon the second Scire fac a Nihil was returned and the Plaintiff had Judgement to recover and afterwards he sued out a Levari fac and a Nihil being returned the Plaintiff prosecuted a Capias ad satisfaciend by vertue of which Writ the Defendant being then Sheriff took the said A. and afterwards at D. in the County of S. permitted him to go at large to which the Declaration the Defendant demurred Damport for the Defendant and he shewed the cause of the Demurrer to be because a Capias upon the Recognisance did not lie and he divided the Case into two parts first whether a Capias would lie in the Case and secondly whether the Sheriff would take the Advantage of such a naughty Processe and as to the first it seemed to him that a Capias would not lie because it appeared by Herberts 5. Repub. fol. 12. And Garnons Case 5. Rep. fol. 88. that the Body of the Defendant was not liable to Execution for Debt by the Common Law but onely in Trespasse where a Fine was due to the King or that he was accountant to the King and the Plaintiff could have no other Processe but a Fieri facias within the year and if the year were passed then he might have a new Original in Debt But now by the Statute of Marlbrig cap. 23. And Westm. 2. cap. 11. a Capias is given in Account and by the 25 E. 3. c. 17. Capias is given in Debt and Detinue and by the 19 H. 7. c. 9. the like Processe is given in Case as in Debt and Trespasse and the 23 H. 8. c. 14. a Capias is given in a Writ of Annuity and Covenant but Statute gives a Capias in this Case and therefore it remaines as it was at Common and by that it would not lie which is also apparent by the Recognisance for that is that if the Debt shall be levied of the Goods and Chattels Lands and Tenements c. and doth not meddle with the Body and by an expresse Authority 13 14 Eliz. Dier 306. Puttenhams Case it is held that the Chancery hath no Authority to commit the Defendant to the Fleet upon a Recovery in a Scire facias upon a Recognisance because the Body is not liable And for the second point it seemed to him that the Sheriff should take Advantage of this which should be as void and as null whereof a stranger may take benefit and to prove this he took this Difference when a Processe will not lie and where it is disorderly awarded as if an Exigent be sued out before a Capias or an Execution before Judgement for if that Processe be originally supposed there the Processe is but erroneous in Druries Case 8. Rep. 142. 34 H. 6. 2. b. But if the Action it self will not maintain the Processe as a Capias in Formedon there that Processe is as void and null and he took another Diversity when the Capias is taken by the Award of the Court when Judgement is given that he shall recover for in that Case it shall remain good untill it be reversed because it is the Act of the Court and so is Druries Case to be intended but if the party himself take it it is at his own peril as here it is for the Plaintiff hath onely pleaded that he prosecuted c. which is as void to the party who sued it out and he shall have no benefit of it but the Sheriff shall not be punished for false Imprisonment because he is not to examine the illegality or validity of the Processe for the 11 H. 4. 36. If a Capias issue out without any Original and the party be taken the Sheriff shall not be punished and for these Reasons he prayed Judgement for the Defendant Noy was for the Plaintiff and he agreed that at the Common Law no Action did lie in this Case as it hath been said but he was of opinion that this Case is within 25 E. 3. cap. 17. for the intention and drift of the Statute was to give speedy remedy to recover Debts and the Action is all one in the eye of the Law as if it had been done by Original which in the equity of the Statute And a Capias lies upon a Recognisance against a Surety for the Peace and upon a Scire facias against the Bail in the Upper Bench. As to
an inquiry of damages between the Plaintiffs and Dawby according to the Award upon the Roll which is the warrant for the Venire facias and it was shewed that the Jury knew nothing of the matter for which they were warned for they ought to have onely given their Verdict against Scullard and not against Dawby and it was likened where two matters are in Issue and they give a Verdict for one and nothing for the other it is naught for all And this was the opinion of the whole Court except Justice Williams who relyed upon 9. Eliz. Dyer Sir Anthony Cook and Wottons Case in partition against two one confessed the Action and the other pleaded to Issue and the Venire facias was to try the Issue between the Plaintifs and the two Defendants and it was amended by the opinion of the Court But marke the difference for no damages are to be recovered in partition but it is otherwise in Trespass and therefore in Cooks Case it was found by the Court that it was as if a meer stranger to the Record had been named in the Venire facias WInckworth against Man Mich. 5. Jacobi The Plaintiff declares for a Trespass in one Acre of Land in D. and abuts that East West North and South and upon not guilty pleaded the Jury found the Defendant guilty in halfe an Acre within written and moved in Arrest of Judgment because upon the matter no Trespass had been found for there is no such moity bounded as the Plaintiff had declared for the whole Acre is onely bounded by the Plaintiff containing his Trespass within those bounds and the Defendant ought to be found a Trespassor within those bounds for otherwise it is not good and it is impossible for the moity of one Acre to be within those bounds But the whole Court except Fenner were of opinion that the Plaintiff should have his Judgement for if the Plaintiff layeth his Action for a Trespass committed in one Acre and the Jury find that onely to be in one foot of it it is good and here they have found the Trespass in the moity of the Acre bounded which is sufficient in this Action where damages onely are to be recovered but if it had been in Ejectment the Verdict had been naught for it is incertaine in what part he should have his Writ of Habere facias possessionem BVckwood against Beale Mich. 5. Jacobi In an action of Trespass it was sayd by the Court That if a Sheriff execute a Capias and there is no Originall to warrant it he is excused it for he is not to examine whether the Originall be sued out or no and for this Trewyrmards Case 38 H. 8. And so if a Bailiff execute a Process made to him by the Steward for damages recovered in the Mannor in a thing in which they had no authority to hold Plea The Bailiff is excused and shall not be punished because he is not to examine the jurisdiction of the Court 7 H. 4. 27. 22 Ed. 3. 22. Ass But if Process come to the Sheriff to arrest J. S. and he arrest J. N. or to make execution of the Goods of J. S. and he make execution of the Goods of I. N. he is a Trespassor for in this Case he must take notice at his perill of the Person and the Goods for when he arrests I. N. or does execution upon his Goods he doth it without warrant And so if I. S. sue a Replevin to the Sheriff to replevin his Cattell and I. S. comes to the Sheriff and shews him the Cattell of I. N. and saith they are his Cattell and he makes replevin of the Cattell he is a Trespassor to I. N. and the Sherif may have an Action of Trespass against I. S. for his false information for the Sherif must at his owne perill take notice whose Cattell they be 3 H. 7. 14 H. 4. but if there be any fraud in the matter he may averr that MOnrey versus Johnson An Action of Trespass brought for entring into a mans House The Defendant pleads that he was a Constable c. And it was held by the whole Court that a Constable may justifie his entry into the House of any man for Felony or Treason STrickland against Thorpe Pasch 6. Jacobi Thorpe brought an Action of Trespass against Strickland wherefore he broke his close the 20. of June 3 Jacobi with a continuance thereof untill the sixth of November after and upon a not guilty pleaded it was found for the Plaintif and Judgment entred but it was entred nothing of the Fine because it is pardoned And upon a Writ of Errour brought he assigned for Errour that the Judgment should have been entred with a Capiatur because the King and Parliament pardoned all offences before the 25. of September and therefore the Trespass being alleadged to have been continued untill the sixth of November following onely part of the Trespass was pardoned and therefore as to that it should have been a Capiatur but the whole Court were of opinion that the Judgment was well entred for the first Trespass which was by force and Armes being pardoned all that depends on that was pardoned and the continuance of the Trespass being onely as to the entring and consuming the Grasse is for increase of damages onely but not for the Kings Fine for the first entry being only with force and Arms makes the Trespass REpps against Bonham Trin. 6. Jacobi The Case in Trespass was that a Feofment was made of three Acres to R. Repps and Mary his Wife for their lives and afterwards to the first second and third Son of the body of the sayd Mary and after to the heirs of the body of the said Mary by the said Richard to be begotten and they had no Son but one Daughter Richard levies a Fine of the Land and Mary dyes the Plaintif enters and the Defendant pleads Richards Fine and adjudged that the Plaintif is not barred by the Fine for Richard had onely an Estate for life and the Estate tayle was in the woman only by the opinion of the five Justices for they said that the Husband is only named to declare what heir of the body of the woman should inherit and not any Heir but such an Heir as Richard her present Husband should beget And if the limitation had been to the Heirs of the body of the woman by her Husband and by I. S. to be begotten the Inheritance had been only in the woman but by the last words for if shee had no Heirs by her Husband and afterwards marries I. S. the Heirs that shee should have by I. S. should inherit And they were all of opinion that the Inheritance was only in the woman because the word Heir which makes the estate of inheritance is annexed only to the body of the woman but if it had been to the Heirs which the Husband should have got of the body of the woman there the
Disseisin and Doddridge sayd It would be mischeivous if it should Hill 6. Iac. In the Common Pleas that if in the Common Barre in Trespass the place in the Common Barre is alledged to be Blackacre the Plaintiff may plead that it is his Free-hold and then it was held by the whole Court that an abuttall of one side is sufficient without alledging it of every side SWaine against Becket An Action of Trespass brought for cutting down of Trees And upon a speciall verdict the question was that whereas there is a Mannor wherein are Copi-holders for life which have used to lopp Trees growing upon the Copy-holds for their necessary fire and repairing of their customary Tenements the Lord of the Mannor maketh a Lease of the Mannor for yeares excepting the Trees the Lessee of the Mannor granteth a copy for life the Copy-holder loppeth the Trees growing on his Copy-hold whether by law he might do it or no was the doubt of the Jury And it was held by all the Court that the Copy-holder might lopp the Trees because he is in by the custome which is above the Lords Estate after he is admitted and that the copy-hold doth not depend upon the Lords interest And that the Trees excepted and the Soil remained parcell of the Mannor because the Lease was but for years but if the Lease had been for life it had been otherwise because it had been severed from the Mannor And whereas it was objected that the Tenant should not be in a better condition then his Author it was answered that a Lord of a Mannor at will may grant a copy for life or in fee and it is good If the Lord cut down all the Trees so that the Copy-holder can have no lopping he may have his Action upon the Case against the Lord as it was adjudged in Gosnolds case If the Lord sell away his waste and the Copy-holder dye and the Lord grant a new copy he shall have his Common If the Lord sell away the Trees so that the Copy-holder cannot have Estovers because the Bargainee felleth down the Trees the Copy-holder shall have his Action against the Bargainee Common and lopping are incident to the copy-hold Judgment for the Defendant HArris against Ap-John An Action of Trespasse brought the Defendant pleads not guilty and verdict found for the Plaintif And in Arrest of Judgment it was alledged that the venire facias was de placito debiti and so also was the habeas corpus and it should have been de placito transgressionis And it was amended by the whole Court MYnwinnock against Bligh Trin. 16. Jacob. rotulo 1697. An action of Trespasse brought for breaking the Plaintiffs Close done Septemb. in the 13. year of King James The Defendant pleads as to part of the Trespasse in award and that the Defendant submits himself to the award the 15. yeare and that the Arbitrators in the 13. yeare which was before the submission made the Award and traverses that he was guilty of the Trespasse after the award made And the Plaintiff replies that the Arbitrators the said day in the 13. year made not any award c. And after Tryall exception was taken that the issue was ill joyned being of a thing that was void yet notwithstanding Judgment was given for the Plaintiff and they resembled to a payment upon a single Bond and conditions performed at a Feast not contained in an Obligation Trin. 15. Jac. rotulo 3044. An Action of Trespass brought wherfore by force and armes his Goods and Chattels to wit a thousand posts and forty railes took and caryed away and damages given intire and after a verdict exception taken because Rales was pretended to be no Latine word nor to have any exception but Judgment was given for the Plaintiff DVncomb against Randoll Hil. 9. Jac. rotulo 2267. Three issues in Trespasse One issue was upon a prescription to wit that they had accustomed to have for himselfe his Farme and Tenants of the same Mannor common of pasture in the said c. for all his Sheep which are levant and couchant in and upon the Demesne Lands of W. which lye and are in A. aforesaid every yeare And exception was taken for the uncertainty because it did not appear that those were demesne Lands which lye in A. for it was ill pleaded and ought to be averred but notwithstanding it was held good after a tryal and Judgment was given for the Plaintiff and in this case an exception was taken to the venire facias because it was of A. and of the Mannor of C. and because it was made in this manner to wit de visu de A. and de visu manerij de C. but it was disallowed because against the form used in the Common Pleas. DOwnes against Skrymsher Trin. 9. Iac. rotulo 334. An Action of Assault and Battery brought and there was a Demurrer upon the Evidence And the case was that the Defendant the day specified in the Declaration said that the Plaintiff assaulted the Defenant and in defence of himselfe justifies the beating the Plaintiff replies that he did it of his own wrong without any such cause and in the Evidence the Defendant maintained that the Plaintiff beate him the day mentioned in the Declaration and in the same place And the Plaintiff perceiving that gave in evidence that the Battery was made another day and place to wit c. which was the cause of the speciall verdict for if there be two Batteries made between the Plaintiff and Defendant at divers times the Plaintiff is bound to prove the Battery made the same day in his Declaration and shall not be admitted to give another day in evidence by the opinion of the whole Court HEydon against Mich. 8. Jac. rotulo 839. An Action of Battery brought against three two of them pleaded not guilty and Judgment by non sum informat against the third and the two were found guilty for all And the Jury gave damages severally against one a 100 l. and against the other a 100 s. and what Judgement should be given was the question and at first the Court was of opinion that the Plaintiff should not have Judgment at all for where the Defendants are found guilty of all the Trespass in this case the damages shall be intire but if one shall be found guilty of part or at another time in this case the damages shall be severall otherwise not And they thought a Venire de novo ought to issue out because the Jury had mis-behaved themselves in severing the damages but afterwards it was resolved that the damages that were given by the first Jury to wit one 100 l. should be recovered against all the Defendants in that Writ named and that in Trespass the first Jury taxes the damages for the whole Trespass and that shall bind all the Defendants and therefore execution was given against all the Defendants for the hundred pounds Trin. 9. Jam. rotulo 1835.
ancient Demesne that this shall not alter the tenure insomuch that it is meerly personall and the damages are the principall which are to be recovered and in 21 Edw. 4. 10. b. the difference is shewed between ejectione firme and quare ejecit infra terminum for one lyes against the Lessor or other Ejector immediately and the other lyes against the Feoffee of the other immediate Ejector and the first is by force of armes and the other not and it alwayes lyes against him that is in by Title and the first against him which is the wrong doer and hee intended that the agreement with one of these Defendants is good for it is satisfaction and discharges the action as release the which every one which hath it may plead and here it is pleaded with satisfaction that is obligation upon which the Plaintiff may have action and so he concluded and prayed Judgement for the Defendants Wynch Justice argued this case notwithstanding that hee had not heard any argument at the Barr this being the first case that he argued after he was made Justice of this Court and he delivered his opinion that the agreement was a good Barre and he said that the difference is where the thing to be recovered is in the Realty and where it is in the Personalty as it is agreed in Blakes Case 6 Coke 43. b. So that here the only question is if this action be in the Realty or in the Personalty and it seems to him that it is in the Personalty and that it is of the nature of Trespass and the tearm is not anciently to be recovered as it is 6. R. 2. Fitz. Na. Bre. and it is within the statute of 4 Edw. 3. Chap. 6. which gives action to Executors for goods carryed away in the life time of the Testator as it is 7 H. 4. 6. b. And to objection that ancient Demesne is a good plea and for that is in the Realty and hee said and so it is in Accompt and Accompt is not in the Realty and the reason why it shall not be a Barr in Assise is in so much that there the Free-hold shall be recovered but this fails here so in Waste also this toucheth the Inheritance but here the Inheritance doth not come in question but the tearm only and it doth not appeare to the Court that it concerns Inheritance for it may be betwixt the Lessor or another which claims under him and the Lessee And if a Husband which hath a tearm in right of his Wife submits himself to Arbitrement this shall not bind the Wife but shall bind the Husband and shall be a Barr if the Wife hath not Interest and so he concluded that Judgment shall be given for the Defendants and that the agreement is a good Barr. Foster Justice intended that the agreement is a good Barr in an Ejectione firme c. And it seems that it is no question but that the action is personall and yet hee agreed that ancient Demesne is a good plea. So in debt receipt of part hanging the Writ abates all the Writ And 21 Ed. 4. 10. b. Two Tenants in Common were of a Tearm and 7 H. 4. 6. b. Executors shall have an action upon Entry made in the time of their Testator by the statute of 4 Edw. 3. Chap. 6. and in this the Plaintiff shall recover his Tearm but he denyed that the reversion is reduced by the recovery nor revested in the Lessor till the Lessee enter And to the Objection that the Realty and Inheritance may come in question in this that is not to the purpose for so it may in an action of Trespasse And he intended there is no difference between agreement and Arbitrement and agreed that none of those is a plea where the Inheritance or Free-hold comes in question And he conceived that Arbitrement for free-hold is not good unlesse the submission be by Deed indented for by Obligation with Condition is not sufficient 11 H. 4. 44. b. and it is not in difference 14 H. 4. that in ravishment of ward submission may be without Deed insomuch as it is in the personalty and he intended that there is no difference between that and Ravishment of Ward and Ward is but Chattâll so is tearm which may be sold by word as well âs the possession may be sold by word so may the right of that be extinct by word And as if a may be bound to pay a certain summe of money at a certaine day and the Obligee accept parcell in satisfaction before the day and that is very good So in this case acceptance of a summe of lesse value may be a satisfaction of such personall thing 4 H. 8. Dyer 1. 8 Edw. 6. Dyer 19 H. 6. 9 H. 7. And so he concluded that for that nothing is to be recovered but Chattell that for that the agreement shall be good plea. Warburton Justice agreed that the agreement should be good in Ejectione Firme insomuch that this is meerely personall And he argued that it is no Plea in assise insomuch that this is reall and there the Free-hold is to be recovered and this is the reason that waging of Law lieth in Debt upon arbitrement insomuch that the seale of the Arbitrators is not annexed unto it and for that to him it is but only matter in Deed 13. Ed. 4. And he intended that agreement with satisfaction is as much as Arbitrement for a personall thing cannot be satisfaction for a reall thing and that is the cause that it cannot be a Barr in Debt upon arrerages of accompt insomuch that that is founded upon Record and is a thing certaine And in wast it is no Plea insomuch that this is a mixt Action if it be against a Lessee for life otherwise if it be against a Lessee for yeares for a Tearme is taken in 7. H. 4. 6. b. to be within the word Goods and an Executor may have an Action upon that of goods carried a way in the life of the Testator And though that the Entry abate the Writ yet this doth not prove that it is more then a Tearme and though that the Tearme determine hanging the Writ this shall not abate the Action but the Plaintiff shall recover Dammages and in Ravishment of Ward Summons and Severance lies and the Body of the Heire shall be recovered and so in Quare Impedit Summons and Severance lies and the presentment shall be recovered and Dammages and yet the principall is but presentmemt which is but a Chattell and for that agreement shall be a Barr and so he concluded that Judgement shall be given for the Defendant and that the agreement is a good Plea Coke cheife Justice agreed that the agreement is a good Plea he thought that that savered of Realty for that that the Tearme is to be recovered and of the personalty in respect of the Dammages which are to be recovered and that in all Actions where money or Dammages
Grant his Intent was cleerly to pass all but Williams if he had sayd Totum Molendinum suum or all his Estate in the Mill there paradventure it should haue been otherwise and so a difference where he saith he grants the Mill and all his Estate in that and where he grants all his Estate in the Mill for in the first case all passes by the Grant of the Mill and these words which are after are but words explanatory as ârooke sayd and it was adjourned And after in Easter Tearm next insuing Hitcham the Queens Attorney came again and prayed that the Judgment be affirmed and Yelverton of Grayes Inne sayd that he hath considered of Nokes Case 4. Coke and this was all one with this case for the case was thus A man lets a House in London by these words demise Grant c. That the Lessee should injoy the House during the Tearm without eviction by the Lessor or any claiming from or under him and the Lessor was bound to peform all Covenants Grants Articles and Agreements as our case is and there by the whole Court that the sayd express Covenant qualifies the generalty of the Covenants by the Words Demise and Grant which is all one with our case for first he granted Totum Molendinum and after covenant that he should injoy c. against himself and all which claime in by from or under him and after binds himself to perform all Grants Covenants Articles and Agreements and so it seems to him that it is au expresse Covenant in this Case as well as in other and qualifies the generall Covenant implyed by the word Grant and then the Grantee being outed by a title Paramount no Action of Debt upon such Obligation and prayed that the Judgment be reversed and the Justices sayd they would consider Nokes Case and the next day their opinions were prayed again and the cheife Justice sayd that he had seen Nokes case and said that there is but a small difference between the cases but he sayd that some diflemay be collected For first in our case is a Recitall of the Estate of the Grantor that is that all belongs to him as Survivor and for that this was a manner of Inducement of the Grantee to be more willing and forward to accept of the Grant and to give the more greater consideration for it but in Nokes case there is no recitall and so this may be the diversity Secondly In Nokes Case the Tearm past all in Interest at the first and the Grantee or Lessee had once the effect of this Lease in Interest of the Lessor but in this case when two Tenants in Common and one grants Totum molendinum there passes but a half at the first and so the grant is not supplyed for the other halfe and then if the speciall Covenant shall qualify the generall c. The Grantee shall not have any remedy for a half at all and this may be the other diversity but admitting that none of these will make any difference then he sayd that all the Court agreed that this point in Nokes Case was not adjudged but this was a matter spoken collaterally in the case and the case was adjudged against the Plaintiff for other reasons for that that he did not shew that he which evicted this Tearm had title Paramount for otherwise the Covenant in Law was not broken and for this reason Judgment was given against the Plaintiff and not upon the other matter and so the whole Court against Nokes Case And the cheif Justice sayd that to that which is sayd in Nokes case that otherwise the speciall Covenant shall be of no effect if it cannot qualify the generalty of the Covenant in Law he sayd that this serves well to this purpose that is that if the Lessor dyes and any under the Testator claim the Estate that the Action of Covenant in this case lies against his Executors which remedy otherwise he cannot have for if a man makes a Lease by these words Devise and Grant and dyes Action of Covenant doth notly against his Executors as it is sayd in the 9. Eliz. Dyer 257. But otherwise upon expresse Covenant and then this expresse speciall Covenant shall be to this purpose And also it seems to him that if a man devise and grant his Land for years and there are other Covenants in the Deed that in this case if the Lessor binds himself to perform all Covenants that he is not bound by his Bond to perform Covenants in Law and he cited that to this purpose the Books of 22 H. 6. and 6 Ed. 6. B. Tender that if a man makes a Lease for yeares rendring Rent this is Covenant in Law as it is sayd 15 H. 8. Dyer and a man shall have Debt or Covenant for that and yet if a man binds himself in a Bond to perform all Covenants where there are other Covenants in the Deed and after doth not pay the Rent no action of Debt lyeth upon this Obligation nor the nature of the Debt altered by that and he sayd that the Munday next they would pronounce Judgment in the Writ of Errour accordingly if nothing shall be sayd to the contrary and nothing was sayd Hillary 7. Jacobi 1609. In the Kings Bench. Bartons Case THE Case was this A man was taxed by the Parish for Reparations of the Church and the Wardens of the Church sued for this Taxation in the spirituall Court and hanging this Suit one of the Wardens released to the Defendant all Actions Suits and Demands and the other sued forward and upon this the Defendant there procured a Prohibition upon which matter shewed in the Prohibition was a Demurre joyned and Davenport of Grayes Inne moved the Court for a Consultation and upon all the matter as he sayd the point was but this If two Wardens of a Church are and they sue in the Court Christian for Taxation and one Release if that shal barr his Companion or not And it seems to him that this Release shall not be any Barr to his Companion or Impediment to sue for he sayd that the Wardens of a Church are not parties interested in Goods of the Church but are a speciall Corporation to the Benefit of the Church and for that he cited the Case in 8 Ed. 4. 6. The Wardens of the Church brought Trespass for goods of the Church taken out of their possession and they counted Ad damnum Parochianorum and not to their proper damage and the 11 H. 4. 12. 12 H. 7. 27. 43 H. 7. 9. Where it is sayd expresly that the Wardens of the Church are a corporation only for the Benefit of the Church and not for the disadvantage of that but this Release sounds to disadvantage of the Church and for that seems to him no Barr also this Corporation consists of two persons and the Release of one is nothing worth for he was but one Corps and the moyity of the Corps could not release
the foundation is of Saint Paul and where it is a person certain but all the name is not so precisely recyted and to that which is sayd by my Brother Williams that no difference between conveiance made to them and by them I agree to him with this difference that is if conveyance be made to them of what by presumption in Law they are knowing and are parties as a Fine levied to them and such like but of a Devise it is not presumed that they have knowledge of that till the Death of the Devisor and he conceived that the Lease is voyd and this Decree shewed hath not changed his opinion but he moved the parties again to an agreement and would not as yet give Judgment Hitcham the Queens Attorney moved the Court for a Prohibition and the case was this two Merchants covenanted by Deed with their Factor to allow him ten pound a Moneth for his Wages and one Merchant sealed the Deed in England and the other sealed that upon the Sea and the Factor came and sued the Merchants in the Admiralty for his wages and by the Court insomuch that one of them sealed it upon the Land this is not any thing done upon the Deepe Sea and for that Prohibition was granted to him Upon a Motion made by Wincolt of the Middle Temple to dissolve a Prohibition granted to the spirituall Court upon a Libel for Tithes there the Court took this rule that when a Consultation is lawfully granted there a new Prohibition shall not be granted upon the same Lâbell and yet they qualified that with this difference that is when a Consultation is granted upon any fault of the Prohibition in form by the Mâsprision of the Clark or by mis-pleading of any Statute in that or such like there a new Prohibition may be granted upon the same Libell but if Consultation be granted upon the right of the thing in question there a new Prohibition shall not be granted upon the same Libell see the Statute of 5 Ed. 3. Pasch 9. Jacobi 1609. In the Kings Bench. BRomehead and Spencer Plaintiffs Rogers Defendant where an Action of Debt was brought by the Plaintiffs against the Defendant as Administrator during the minority of one J. S. and the Plaintiffs shew in their count that the said J. S. at the time of the Writ brought was and yet is within age of one and twenty years and verdict passeth against the Defendant and Crewe moved in arrest of Judgment that the Declaration was insufficient for they have declared that the Executor was within the Age of one and twenty years and the Administration during the nonage shall cease when the Infant comes to the Age of seventeen years so that he may be of the age of 17. 18. 19. or 20. years and yet the Administration ceaseth and so of Action against Administrator and so was the Opinion of all the Justices and the Judgment was stayed upon that according to the resolution of Piggotts Case 15. Coke 29. a. PLomer against Hockhead the Plaintiff declares in Ejectione firme upon a Lease made to him by three Husbands and their wives and that the Defendant ejected him and at the Issue upon not guilty and in evidence to prove this Lease and the delivery of that was shewed a Letter of Attorney made by the Husbands and their wives and the councel of the Defendant takes exception to the Declaration for they have declared upon a Lease by three Husbands and their Wives with a Letter of Attourney to make delivery and a married Wife cannot make a Letter of Attorney And so this is not a Lease of the Wives and so the Plaintiff had declared upon no Lease And the opinion of all the Court was that a married Wife could not make a Letter of Attorney And Williams Justice compared this to the case of an Infant as if an Infant makes a Feoffment or a lease and delivers that with his hand this is not but voidable But if it be executed by Letter of Attorney that is a disseisin to him but by Flimming and Williams if the Plaintiffs had declared upon a Lease made by the Husbands only this had been very good Thomas Malin Plaintiff in Replevin against Thomas Tully the case was The Queen Mary was seised of a Park called Eestwood Park in her Demesne as of Fee as in Right of her Crown and so being seised by her Letters Patent's let the said Park to two for their lives and after died And the Queen Elizabeth by her Letters Patents recyting the said Lease for lives and that the said Lessees were alive granted the said Park to Humphrey Lord Stafford and his Wife and to the Heires of the said Lord Stafford of the Body of the said Wife lawfully begotten And by the said Patent the same Queen by these words Ac de Ampliori et Vberiori Gracia Nostris Volumus et Declaramus quod si Predictus Dominus Stafford Solvat seu Solvi faciat prefacto Dominae Reginae 20 s. ad talâm Diem Tunc Concedimus quod predictus Dominus Stafford habebit revertionem predictam sibi et Heredibus suis And the Lord Stafford paid the said sum of twenty shillings according to the said Letters Patents and if he shall have Fee-simple or not was the question And it was objected that he shall not have it for the words of the Patent are that if the Lord Stafford paies the money Tunc concedimus the which words seeme that the Grant shall take effect in futuro and it was not a present Grant but when the money shall be paid then shee granted but it seemes to the Justice that it was a good Grant immediatly to take effect upon the payment of the money and the condition was precedent till that be performed the reversion remaines in the Queen Eliz. And the Queen might grant by one selfe same Patent as by diverse See 10. Assise 13. 7. Ed. 3. 8. Ed. 2. Feoffments and that the reversion shall not extinguish the Estate Tayl but they may well be together but otherwise it is of an Estate for yeares or for life Warburton Justice that the King is specially favoured in the Law and for that he shall not be inforced to attend in case as other persons ought to make attendance And for that in case where a common person may make a good Grant the King also may make a good Grant and in the case at the Barr if the Grant had been made by a common Person it had been good without question But the first objection that hath been made was that where a man hath made a Lease for life or for years upon condition to have Fee there the particuler Estate shall be drowned upon the increasiing of the Estate but the Statute of Westminster 2. preserves the Estate tayl that it shall not be drowned and that the Fee in this case doth not vest till the condition be performed for if the
REPORTS OF Diverse Choice CASES in LAW TAKEN By those late and most judicious Prothonotaries of the Common Pleas RICHARD BROWNLOW JOHN GOLDESBOROUGH Esq rs WITH DIRECTIONS HOW TO proceed in many Intricate Actions both Reall and Personall shewing the Nature of those Actions and the Practice in them excellently usefull for the avoyding of many Errours heretofore committed in the like Proceedings fit for all Lawyers Attorneys and Practisers of the Law Also a most Perfect and exact Table shewing Appositely the Contents of the whole Book Solon ãâã ãâã ãâã ãâã ãâã LONDON Printed by Tho Roycroft for Matthew Walbancke at Grays-Inne Gate and Henry Twyford in Vine Court in the Middle Temple 1651. THE PUBLISHER TO THE READER THese Reports coming unto my hands under the Commendations of men of so much sufficiency in the knowledge of the Lawes I could doe no lesse then fear that it would prove too obvious a neglect of Common good to keepe them in the darke therefore here I present them to the World to the end that all men may take that benefit by them now being in Print which some few only have hitherto injoyed by private Copies And indeed I thinke I shall put it beyond dispute when I name the two worthy and late famous Prothonotaries M r. Brownlow M r. Goldesborough whose Observations they were that they will both profit and delight the Reader since there are contained under these heads viz. Actions upon the Case Covenant Account Assise Audita querela Debt upon almost all occasions Dower Ejectment Formedon Partition Quare Impedit Replevin Trespas Wast Many excellent conclusions as well of Law as of the manner of pleadings Demurrers Exceptions Essoins Errors and the qualities of many VVrits with other various and profitable Learning in which may be found the number of the Roll for so many as have had the luck of a full debate and definitive sentence And for the rest though there is no Judgment in them so as to determine what the Law is yet at least they will afford a very considerable compensation for the Readers pains by opening unto him such matters as are apt for Argumentation and may acquaint his Genius with the manner of Forensall Disputations from which benefit to detain you any longer will deserve a Censure therefore I remit you to the matter it self which I am confident the Printers faults excused will easily effect its owne praise beyond my Ability SPECIALL OBSERVATIONS AND RESOLUTIONS OF THE JUDGES OF THE COMMON PLEAS Vpon severall Actions upon the Case there depending and adjudged PEdley versus Langley Hill 14. Ja. rotulo the Plaintiff brought his Action for these words You are a Bastard for your Father and Mother were never married The Defendant pleads that the Plaintiff was a Bastard and justifies the words laid and it was held by the Court that this Issue should be tried by the Countrey and not by the Bishop as in other Cases SMayles one of the Attourneys c. versus Smith for these words he meaning the Plaintiff took corruptly five Marks of Brian Turnor being against his own Client for putting off and delaying an Assize against him and after a Verdict exception was taken against the Declaration for that the Plaintiff did not expresly alledge that at the time of speaking the words He was an Attourney but layd it that he had been an Attourney The Court held the words would bear Action MAle versus Ket Hill 14. Jac. rotulo 1506. for these words William Male did steal my Corn out of my Barn Judgement for the Plaintiff The Court held that an Action would lie for these words You are a Thief and have stollen a Cock which was but Petty Larceny COwte versus Gilbert Hill 10. Jac. rotulo 3176. Thou art a Thief and hast stollen a Tree Judgement that the Plaintiff should take nothing by his Writ The like Thou art a Thief and hast stollen my Maiden-head no Action HArding versus Bulman Hill 15. Jac. The Plaintiff declares that in such a Term he had brought an Action of Case against B. for scandalous words to which he pleaded not guilty and at that Triall gave in Evidence to the Jury to take away the Plaintiffe Credit and Reputation that the Plaintiff was a common Lyar and recorded in the Star-chamber for a common Lyar by reason whereof the Jury gave the Plaintiff but very small Damage to the Plaintiffs Damage of c. The Defendant pleads not guilty And it was moved in Arrest of Judgement that the Action would not lie And of that opinion the Court seemed to be BRidges one of the Attourneys versus Playdell for words You meaning the Plaintiff have caused this Boy meaning A. W. then present to perjure himself Judgement for the Plaintiff STone versus Roberts Mich. 15. Jac. rotulo 635. for these words Thou art a Witch and an Inchanter for thou hast bewitched Stronges Children no Action lies but if thou say Thou art a Witch and hast bewitched Children and that they are wasted and destroyed they are actionable SCarlet versus Stile Trin. 14. Jac. rotulo 541. for these words Thou didst steal a Sack and Curricomb and I will make thee produce it and thou didst steal my Fathers Wood and didst give it to a Whore The Defendant justifies that such a day the Goods were stollen and there was a common fame and report that the Defendant had stollen them and upon that report the Plaintiff did vehemently suspect that the Defendant had stollen them and thereof did inform a Justice of the Peace and complaining of the Defendant to the Justice and informing him of the Premises did speak the words before mentioned If a Felony be committed it is good cause to arrest one for Felony but not to speak words to defame one If there be two Issues in severall Counties in Trover and one is tried and Judgement and Execution of the Costs and Damages and afterwards the other Issue is tried and Costs thereupon the last is erronious as to the Costs Broccas Case Note Trover was brought against Husband and Wife for Goods which came to the hands of Husband and Wife the Conversion was alleadged to be by the Husband alone for the Wife could not convert And the Court held that the Action would not lie against the Wife MOse versus Canham Mich. 6. Jac. rotulo 508. The Plaintiff declares that one Levet was indebted in such a summ and for the payment thereof had delivered to the Plaintiff divers Goods of the said Levets the Defendant in consideration that the Plaintiff would deliver to the Defendant the said Goods promises to pay the Plaintiff the money due from Levet and exception was taken to the Declaration for that the certainty of the Goods were not expressed and for that the consideration was but collateral Another Exception for that the Plaintiff might grant the Goods over but the Court held the contrary And Judgement for the
Berwick Gaol for stealing of a Mare and other Beasts and after a Verdict for the Plaintiff it was moved in Arrest of Judgement that the words were not actionable and so it was adjudged for that he did not directly say the Plaintiff was a Thief but onely implied Hill 15. Iac. rotulo An Exception taken to a Declaration in Trover brought by an Administrator because he declares that whereas he was possessed of divers Goods and Chattels as of his own proper Goods and should have said as was pretended as of the Goods and Chattels of the intestate at the time of his Death but the Exception was over-ruled by the Court. Exception to an Action of the case brought and the Plaintiff declares that whereas the Plaintiff had delivered the Defendant unum statum salis Anglicae a Bushel of Salt pretending that statum had another proper signification but because it was shewed to the Court that statum by one Dictionary was Latine for a Bushel Judgement was given for the Plaintiff In Trover it is usual to prove no more but that you requested the Goods and the Defendant refused to deliver them this is a Conversion When a Justification arises upon a Sale then I need traverse no more but the place alleadged and not go to the whole County but where it is a transitory Trespass as for Battery taking of Goods and the like then the whole County must be traversed CAtford versus Osmond Mich. 16. Jac. rotulo 1063. Action of Trover brought for two Steers the Defendant being an Attourney of the Common-pleas justifies the taking as Under-sheriff by reason of Process from the Exchequer to levy of the Occupiers of the Lands of divers persons in a Schedule in the said Writ named the Debts therein specified and doth not recite the Schedule and he being Under-sheriff took the Steers in the Land of the Plaintiff which was lately one Stones who was Debtor to the King in 59. s. being behinde upon the Land and Exception was taken for that it was not directly alledged that the Land such a Day was the Land of the said S. The Writ commanded to levy the summs in the said Schedule mentioned and if they could not to take their Bodies and it was adjudged a good Warrant to levy of the Occupiers of the Lands that were the said S. 59. s. COles versus Flaxman Hill 14. Jac. rotulo 2175. Action of the case brought for disturbing the Plaintiffs Common The Defendant pretends Title to the Common by reason of Common appurtenant to certain customary Land of part of which he conveys a Title to himself but not of the whole and the Question was whether it were Common appurtenant or appendant and if appurtenant it could not be divided KEymes versus Moxham Trin. 15. Jac. rotulo 559. Action of the case brought for a promise made at C. for the Delivery of a Mare which the Plaintiff delivered the Defendant to plow his ground in P. And shews the Defendant did so excessively and immoderately labor and work the said Mare that the Mare died The Defendant confesses the promise and that the Mare at the time of the Delivery was infirm and that he worked her moderately and traverses the excessive labouring of the Mare and after a Verdict it was moved in Arrest of Judgement that it was mis-tried because the Venn was of C. which was naught and there was no place alleadged where the excessive labouring was for the Venn ought to come from that place where the laboring was HArbin and his Wife versus Green Trin. 14. Jac. rotulo 2263. Action upon the case brought for not grinding his Corn at the Plaintiffs Mill and shews that the Bishop of Salisbury was seised of four customary Mils called A. in his Demesne as of Fee in right of his Bishoprick and prescribes that all Inhabitants and Residents within the City of Salisbury holding any ancient Mesuages of the said Bishop in right of his Bishoprick were time out of minde used and ought to grinde all their Corn whatsoever spent in their houses or exposed to sale in the said City at the said Mils of the said Bishop and no where else without the licence of the said Bishop and to pay Toll therefore to the said Bishop his Successors Bishops or their Farmors for the time being and in consideration thereof the Bishop his Successors or Farmors for the time being of the said Mils time out of minde have been used and accustomed at their own charges from time to time to keep and maintain a Servant expert in grinding as well by night as day there attending to grinde their Corn as soon as conveniently might be and the Plaintiff shews that such a Day the Defendant was and yet is an Inhabitant in one ancient Mesuage in the said City held of the Bishop and so possessed intending to deprive the Plaintiff of the profit of his Mill did such a day grinde divers sorts of Corn in other Mils without the Bishops leave to his damage of c. The Defendant pleads Non cul The Jury finde the Defendant guilty for a longer time then the Plaintiff had interest in the Mill and gave Damages intire and upon a Motion in arrest of Judgement adjudged naught GResley versus Lother and his Wife Executrix of R. B. and declares that communication was had between the Testator in his life and the Plaintiff concerning a Marriage to be had and solemnized between one T. B. son and heir apparent of the said R. B. and Jane Daughter of the Plaintiff and heir apparent of John F. deceased the said Testator such a Day and Year in consideration that the Plaintiff at the special instance and request of the said R. B. then and there would agree that the said T. B. should marry the said J. promised to pay 20. l. and adjudged a good consideration GOwland versus Mason Hill 17. Jac. rotulo Action of the case for these words I charge him with Felony for taking of money out of the pocket of Henry Sparry and I will prove it and the Court was divided in opinion whether the words would maintain an Action or no. SMith and his Wife versus Stafford Executor of Stafford Hill 15 Jac. rotulo 906. Action of the case brought upon a promise made to the Woman when she was sole in consideration the Woman would marry the Testator he promises that if the Woman should over-live the Testator that then he would leave her worth 100. l. and they averr that she did marry him and after the Husband died and did not leave her worth 100. l. and the Defendant pleads Non assumpsit and found for the Plaintiff and it was moved in Arrest of Judgement that by the Inter-marriage the Promise was drowned and released Three Judgeââ¦r the Plaintiff and one for the Defendant The like Observations in Actions of Covenant DRury versus Allen al. Mich. 6. Jac. rotulo 926. Action of Covenant
agreement was not by him performed CRockhay versus Woodward Hill 15. Jac. rotulo 2001. An Action of Covenant brought upon this Writing Videlicet Memorandum that I John Woodward do promise and assume unto B. C. to pay to him such Moneys or other Goods as Josias my son shall imbessell mispend or wrongfully detain of his during the time of his being Apprentice with him within three Moneths next after request to me in that behalf made and due proof made of such imbesselling or wrongfull detaining in witness c. and the Plaintiff shews that the Defendants son did imbessell Goods of his Masters and shewed what Goods and left out in his Declaration these words Videlicet and due proof likewise made of such imbesselling or wrongfull detaining The Defendant demands Oyer of the Writing and pleads that he did not imbessell and it was tried for the Plaintiff and after Triall Exception taken because the Plaintiff did not alleadge any proof made and for that reason Judgement was arrested BRagg Assignee of Bragg versus Wiseman Executor of Fitch Mich. 12. Jac. rotulo 538. Action of Covenant brought and the case was this that Fitch and his Lady were seised of Land in right of his Wife for terme of her life and joyn together in a Lease by Deed indented in which were these words demise and grant and afterwards Fitch dieth the Lady enters and avoids the Lease and maketh a new Lease to a stranger whereupon an Electione firme is brought against the first Lessee and Judgement thereupon and the first Lessee put out of Possession whereupon the first Lessee brings his Action of Covenant against the Executors of Fitch upon the words demise and grant The Defendant demurrs The words were have demised granted and to farm letten for years if the Wife should so long live and Judgement for the Difendant A Covenant in Law shall not be extended to make one do more then he can which was to warrant it as long as he lived and no longer The Law doth not binde a man to an inconvenience If Tenant for Life make a Lease for twenty years and covenant that the Defendant shall injoy it during the terme that shall be during his Life for the terme endeth by his Death but otherwise it is if the Covenant be during the terme of twenty years by the word Demise an Action of Covenant lieth although he never enter and this word Demise implieth as much as Dedi concessi An Action of Covenant brought for that the Defendant covenants to bring again a Ship Perils and Damages of Sea onely excepted and he to excuse himself saith that the Hollander in a warlike manner by force and armes took the Ship and much doubt was where the Issue should be tried and the opinion of the Court was that the Action should be tried where it was laid COwling versus Drury Action of Covenant brought for that the Defendant did not pay a Rent with which the Land was charged the Defendant replies he was to injoy the Land sufficiently saved harmless and answers not the Breach and adjudged a naughty Bar by the whole Court SElby versus Chute Trin. 11. Jac. rotulo 3804. Action of Covenant brought and the Breach was alleadged that the Plaintiff should quietly injoy the Land demised to him and he shews that Chute exhibited a Bill in Chancery against him pretending the Lease was made in trust and it was decreed to be otherwise and whether the exhibiting this Bill was a Breach of Covenant there being no Disturbance at Common Law was the Question and the Court were of opinion that it was no Breach of Covenant for it was no Disturbance at Common Law nor Entry and the Law could not take notice of it and Judgement for the Defendant HOlder versus Tailor Pasch 11. Jac. rotulo 1358. An Action of Covenant brought upon this Covenant that the Lessee should repair the House provided alwayes and it was agreed that the Lessee should have such necessary Timber to be allowed and delivered by the Lessor and the Breach was that the House wanted Reparations and that so many Loads of Timber were necessary and that the Lessor allowed them according to the form and effect of the Indenture and a general Request laid and Exception was taken to the Declaration for that the Plaintiff did not alleadge a special request to the Defendant and that it was laid in the Declaration that a stranger brought the Timber which was held to be naught by the whole Court for it amounted to an Entry upon the Lessees Possession Exception taken to a Breach laid in Covenant for Repairs because it was generally alleadged and not shewed in what but being after a Verdict it was helped by the opinion of the whole Court TIsdale versus Essex Trin. 12. Jac. rotulo 2131. Action of Covenant brought upon these words covenant promise and agree that the Lessee should quietly occupy and injoy the Lands demised for and during the terme of seven years and the Plaintiff shews that an Estranger entred upon the Land and shews not that he entred by Title and the Court was of opinion that it was naught because it did not appear that he had a good Title to enter Dedit concessit imply a Warranty for Life and Judgement was given for the Defendant because the Breach was naught HIcks versus Action of Covenant brought and the Land alleadged to be in Weston alias Weston Vnderwood and the Venn was de visu de VVeston Vnderwood and it was alleadged by the Defendant that the Venn was mis-awarded because it was not of VVeston onely but the Court was of a contrary opinion that it was well awarded and Judgement for the Plaintiff CAstilion al. versus Smith Exec. Smith Trin. 17. Jac. rotulo 1849. Action of Covenant brought against the Defendant and the breach of Covenant alleadged to be in the time of the Executor and the Judgement was entred of the Goods of the Testators the Breach was for plowing of Land contrary to Covenant RIdent versus Took Hill 13. Jac. rotulo 3516. Action of Covenant brought to discharge the Plaintiff of a single Bill in which he was bound for the Debt of the Defendant and he alleadges for Breach non-payment and a Suit and recovery at Law for the Money which remained in force The Defendant pleaded that he paid the Money at the Day and thereof gave the Plaintiff notice before the purchasing his Writ the Plaintiff demurs and the Court held the Plea naught and Judgement for the Plaintiff Actions upon Account WIlloughby against Small An Action of Account brought against the Defendant as Receiver of the Plaintiffs Money The Defendant pleads that he never was Receiver where he hath a Release from the Plaintiff whereby he shall lose the benefit of his Release for that he cannot give that in Evidence upon such Issue The Process herein is Summons Pone Distress and upon a Nichil returned
adjudged insufficient and a new Writ awarded but many held that in the case of a Cognisor it was well enough but not in the case of a Purchasor If one knowledge a Statute and after a Judgement is had against the Cognisor now against the Cognisor the Statute shall be preferred but not against an Executor If a man plead a Bond knowledged to the King in the Exchequer it must be averred to be a true Debt If a Debt be assigned to the King in this case no priority of Execution If one staul a Debt by 20. s. a year this shall not stay my Execution the Court were of opinion that an Extent would not be good at Barwick for the Writ runs not there If a Judgement be given in a Court of Record it shall be preferred in case of an Executor before a Statute But if a man acknowledge a Statute and afterwards confess a Judgement and if the Land be extended upon the Judgement the Cognisee shall have a Scire facias to avoid the Extent upon the Judgement otherwise in case of Goods for therein first come first served for if I have a Judgement against one and afterwards he acknowledgeth a Statute and by vertue of the Statute the Goods of him being dead were taken in the Executors hands then upon the Judgement a Scire facias was sued and afterwards a Fieri facias of the Testators Goods it was held that the Goods first extended were lawfully extended and shall be good A Judgement was had against Sir Fr. Freeman and an Extent came to the Sheriff and afterwards and before any thing was thereupon done one Fieri facias against the Executor upon a Judgement given before the acknowledging the Statute was delivered to the Sheriff and the Question was whether the Extent or Fieri facias shall be first executed And note if the Land be first extended upon the Statute and afterwards an Elegit upon a Judgement obtained before the acknowledging the Statute come also to the Sheriff the moity of the Land extended shall be delivered to the Plaintiff upon the Judgement HIll 15. Jac. The case of Villainage is within the Statute of Limitation and in the case of M. Corbet it was held that the Prescription of the Seisin of the Plaintiff and his Ancestors as Villain was more then needeth and the Issue thereupon taken was good by the whole Court after Exception taken thereupon and Judgement was given for the Plaintiff In every Elegit the Sheriff must return and set out the moity distinctly unless they be Tenants in common and in that case he must return the special matter An Extent issued out against one Greisley by the name of Greisley Esquire who was at the time of suing out the Writ made Knight and Baronet and it was naught and the Plaintiff prosecuted a new Writ MIch 10. Jacobi A Tenant by Statute Staple or Elegit that hath extended an Abbots Lease or a Lease made out of an Abbots Lease is not bound to shew it because he cometh in by Act of Law but any other that cometh in under the Lease must shew it by the opinion of the whole Court And note that in Hillary 10. Jac. two Inquisitions taken at several Dayes by several Juries upon one Statute Merchant were adjudged naught one was taken of the Land and the other for Land and Goods and Extent of the whole fourth part was naught for it should be of the moity of the fourth part and mark it was of a Lease which was but a Chattell and the Sheriff might have sold it as Goods but seeing he had extended it in this case he should receive benefit but as in a common Extent COmyrrs versus Brandling A Lessee that had a Lease of the value of 100. l. and after the Teste of the Elegit and before the Sheriff had executed the Elegit assignes his terme to one who assignes it over to the Plaintiff in the Scire facias and afterwards and before the last Assignement the Sheriff executes the Elegit and delivers the Lease to the Plaintiff tenend c. for satisfaction of the Debt which came to but 43. l. 6. s. 8. d. it was held by all the Judges that the Sheriff could not deliver the Lease at another value then what the Jury had found it at and the Sale made by the Sheriff is as strong as if it had been made in open Market and that all the Goods and Chattels are bound after the Teste of the Elegit and cannot be sold by the Owner after the Teste of the Writ If a later Extent be avoided by an ancient Extent after the ancient Extent is satisfied the later Extent shall have the Land according to his first Extent without any re-extent by the opinion of Serjeant Hutton if the Husband charge the Lease of the Wife and dieth the Wife shall hold the Land discharged HIll 12. Jac. The Earl of Lincoln against Wood the Earl of Lincoln did arrest Wood upon a Capias upon a Statute Merchant Wood being in Execution obtained in the Chancery an Audita Quaerela and did put in Bail there and had a Supersedeas and was discharged of his Imprisonment and the Audita Quaerela and Bail sent into the Common Pleas to be proceeded on The cause of the Audita Quaerela was grounded upon the performance of the Defeasons of a Statute and after this case was debated for the Bailment of Wood and held by the Court to be good it was allowed of If the Act for Dissolution of Monasteries had not given the Land to the King the Founders ought to have had them And if an Hospital or religious House is impeached upon the Statute of Superstitious uses it must be proved to be regular for they must be religious that are dissolved by E. 6. JOules versus Joules Alderman purchased Land of one against whom a Judgement was given long before the Purchase and the Vendor afterwards became unable to pay the Judgement and long after the Plaintiff in the Judgement purchased a Scire facias against the Defendant and had Judgement against the Defendant by Default and afterwards had an Elegit and by vertue of that the Sheriff extends the Land of Joules the Purchasor who prayes the aid of the Court because the whole Land was not extended but he was forced to bring his Audita Quaerela If I make a Lease for years reserving a Rent during my Life and my Wives Life if I die the Rent is gone because she is a stranger she shall never have the Rent because she hath no Interest in the Land if one of them die nothing can survive to the other and a Limitation must be taken strictly otherwise it is by way of Grant that shall be taken strongly against the Grantor If 2. Tenants in common joyn in a Lease for years to bring an Ejectment and count Quod cum dimisissent c.
that he had Assets at the Day of the Writ purchased and it had been found for the Plaintiff now the Plea is made good If an Action of Debt be brought against two Executors and one of them onely appear and confess the Action the Judgement shall be against both of them of the Goods of the Testators in the hands of all the Executors and the Damages of him that appeared onely TRin. 16. Jac. rotulo 988. Houldsworth versus Barker An Action of Debt brought upon a Bill the Defendant pleads the Bill was delivered to the Plaintiff upon a Condition not performed and it was held a naughty Plea by the whole Court HIll 13. Jacobi rotulo 842. Harrison al. at the Suit of Fleet. An Action of Debt brought for 32. l. and the Plaintiff counts upon an Emisset Harrison pleads that he and the other do not detain from the Plaintiff the said 32. l. nor any Penny thereof and the other pleads to Issue and a special Entry made that the Issue should remain untill the said Harrison had perfected his Law or made Default and he at the Day did wage his Law and Judgement was that the Plaintiff should take nothing by his Writ PAsch 16. Jac. rotulo 1200. Rayson versus Winder An Action of Debt brought upon an Obligation with a Condition to perform an Award which was good in part and void in part and the Breach assigned upon the good part and the Award was to pay Money but no time of Payment afterwards it was demanded the Award is good GAsington versus Burcher Knight Turner Jones and Bowden for 1800. l. Burcher was outlawed Turner and Jones appeared by Supersedeas and Bawden appeared by another Attorney and the Plaintiff declared against them three that appeared upon an Account Turner offered to wage his Law and the others plead Nil debent per patriam and the Court was moved pretending that Turner shal not be admitted to wage his Law because the Defendants should not sever in Plea but the Court upon sight of divers Presidents were of another opinion although it was urged that Turner Jones joyned in a Supersedeas and therefore pretend that Turner should not sever in Plea from Jones that pleaded Nil debet per patriam but that Exception was disallowed for although two appear by Supersedeas yet they may vary in Plea MIch 16. Jac. rotulo 581. and the Imparlance entred 16. Jac. rotulo 1727. An Action of Debt brought by Lee versus Arrowsmith upon an Emisset for divers Parcels and upon an Account and the Parcels and Account amounted to the summ of 300. l. but in the Imparlance Roll the Parcels and summ accounted for did not amount to 300. l. by 6. l. And this variance was moved in Arrest of Judgement after a Verdict but the Court were of opinion that it was amendable because Ball the Attorney made Oath that he commanded his Clerk to summ the Account for 6. l. to maintain his Writ and therefore the Roll was amended HIll 36. Eliz. rotulo 1908. Action of Debt brought by Gage versus Gilbert upon an Obligation for 500. l. bearing Date first of February Anno 25. Eliz. The Defendant pleads a general Release made to him by the Plaintiff bearing Date after the making of the Bond of all Dues and Demands whatsoever except an Award made between the Plaintiff and one G. W. why R. R. then dead and one Obligation of 500. l. for performance of the said Award bearing Date 29. April 25. Eliz. and whether these words bearing Date 29. April shall have reference to the Arbitrement or Bond was the Question upon a Demurrer upon the Replication in which the Plaintiff shewed the special matter that the Award was made the 29. April and that the Bond was made the said first of February and it was adjudged that these words bearing Date should have reference to the Award and not to the Bond. And if the Heir pleads Ciens per discent besides one Acre if the Plaintiff please he may have Execution of that Acre or if the Plaintiff plead that he hath Assets beyond that Acre and it be found that he hath ten Acres more the Plaintiff shall have Execution of the Land onely and not of his person as it is where the Heir pleads that he hath nothing by Discent generally and it is found against him that Land and all other his Land which he hath and his Body are liable to the Judgement by a Capias ad satisfaciend Fieri facias or Elegit If a man be retained in London to serve beyond Sea he may have his Action for his Wages in England in any County And the like of an Obligation bearing Date at Roan in France it may be sued in England alleadging the place to be in such a County where he brings his Action And note that Debt may be brought in the Common Pleas without Original against any Officer or Minister of the said Court by Bill exhibited to the Court but no Process of Outlary lies upon that and the Judgement upon that is that the Plaintiff shall recover his Debt and Costs and shall have an Attachment ad satisfaciendum but no Exigont for because it is not by Original and all the Process by Bill shall be returnable at a Day certain but no Bill lies against a Serjeant at Law And note that the Judges Serjeants and Officers Clerks Attorneys and Ministers of the Court may have an Attachment of Priviledge out of the said Court without an Original to arrest any to them indebted or for any personal cause to proceed upon it as if it were by Original but no Process of Outlary lies thereupon and such Process of Attachment shall be returnable at a Day certain and not at the common Return and they may be returned from Day to Day If a man be bound to perform an Award of Arbitrators and they make an Award accordingly that one shall pay Money he may have his Action of Debt for the Money and declare upon the Award and afterward may have another Action upon the Obligation for not performing the Award by the opinion of the whole Court Mich. 5. Caroli An Action of Debt brought by an Executor the Defendant pleads an Outlary in the person of the Executor and demands Judgement if he ought to answer his Writ the Plaintiff demurrs in Law to that Plea and Judgement was given that the Defendant should answer over WOlly versus B. and his Wife Trin. 37. Eliz. rotulo 1306. An Action of Debt brought by Husband and Wife as Executrix the Defendant pleads in Barr an Outlary in the Testator by an Estranger which is in its force and upon a Demurr and solemn Debate adjudged a naughty Barr. Trin. 40. Eliz. rotulo 507. The like Plea pleaded to an Executor that brought an Action of Debt and adjudged no Plea And Dixon Administrator of Collins exhibited a Bill against
in the upper Bench. BRownsworth versus Trench Trin. 10. Iacobi rotulo 3628. An Action of Debt brought upon an Escape against a Bailiff of a Liberty and after a Triall Exception was taken to the Declaration because it was not alleadged therein that the Sheriff made a Warrant to the Bailiff upon the Execution but it was onely alleadged that at A. aforesaid by vertue of the Warrant aforesaid he took the Prisoner and saith not within his Liberty aforesaid and the Exception was held void Trin. 10. Iacobi An Action of Debt brought by Executors and the Defendant pleads that the Plaintiffs were not Executors and tried and found for the Defendant and the Defendant upon the Statute for Costs desired Costs because the Jury found against the Plaintiff that he was not Executor and if a Verdict passe against one that is not an Executor he shall pay Costs but Costs were denied by the whole Court for the Jury might finde an untruth BAlder versus Blackborn Trin. 16. Iacobi rotulo 465. An Action of Debt brought for Rent reserved upon a Lease for years the Case this Land was devised to a Woman in this manner that she should have the profits of the Land untill the Daughter of the Devisor should be eighteen years old and the Woman made the Lease in question reserving Rent and afterwards married and then died and if the Husband after her Death should have the Land untill the Daughter of the Devisor came to eighteen years old was the question and adjudged he should hold the Land for the Devise of the profits is the Devise of the Land and is not like a Lease made by a Guardian in Socage which ends by the Deâ⦠of the Guardian the Declaration was for one Mesuage demised the fourth of May 15. Jac. for one year and so from year to year as long as both parties should agree paying twenty four pounds by the year and Nil debet per patriam was pleaded and the Jury found it specially that one I. W. was seised of the Tenement and held it in Socage and made it his last Will in writing and by that did devise to A. his Daughter the said Tenement and her Heirs for ever at the full Age of eighteen years the words of the Will were Item I will that my Wife and Executrix shall have the Education of my Daughter with the portion of Money and profits of my Land to her own use without account untill my Daughters Age aforesaid provided she shall pay the out-rents and keep her Daughter at School and by that Will made his Wife Executrix and the said W. died and his Wife survived and took upon her the Executorship and married with one P. the Woman performed the Condition and afterwards died and Judgement was given for the Plaintiff that it was a terme and that the Husband should have it An Action of Debt was brought against an Executor and the Case was thus Administration was committed to one during the minority of the Executor who wasted the Goods of the Testator and after the Executor attained the Age of seventeen years an Action of Debt was brought against the Executor and the opinion of the Court was prayed whether he might plead generally ne unques Executor or excuse himself by pleading the special matter and the Court doubled but most safe to plead the special matter An Action of Debt was brought for Rent reserved by Indenture payable at two Feasts or within twenty daies then next following and the Plaintiff declared upon a Lease for the Rent and because ten pound at the Feast of the Anunciation 10. Jacobi was behind and unpaid the Action was brought the Defendant pleads Non demisit and a Verdict for the Plaintiff and after a Triall exception was taken to the Declaration because it was not alleadged that the Rent was arrere at that Feast and twenty daies after but it was not allowed after a Verdict because he should have taken advantage thereof before RAtliff versus Executors Pasch 15. Jacobi An Action of Debt brought upon an Obligation to perform Covenants in an Indenture The Defendant pleads performance of the Covenants the Plaintiff alleadges a breach upon this Covenant that the Lessee should injoy the Land without any lawfull interruption or disturbance of the Lessor or his Executors and shewes that the Executors entred upon him in the Land and outed him and shews not any interruption for any just cause and adjudged good in the upper Bench. WHitton versus Bye Trin. 16. Jacobi It was adjudged in the upper Bench in an Action of Debt brought by a Lessor against a Lessee for years for Rent reserved during the Tearme being behind and unpaid that a Release pleaded to be made by the Lessor to the Lessee six years before the Rent was arrere of all Demands was a good Barr One cannot reserve a Rent to a stranger it must be reserved according to the privity WAinford Administrator Kirby versus Warner Trin. 13. Jacobi rotulo 1906. An Action of Debt brought upon a Bond to which the Defendant pleads that the intestate was indebted to him in such a sum and that he retained c. in his hands to satisfie himself of the Debt due to him And that he had not assets over to satisfie the Plaintiff to which Plea the Plaintiff demurrs because he did not plead generally fully administred but an Exception was taken because he shewed not that the Condition of the Bond was for payment of Money STone versus Goddard Trin. 14. Jacobi rotulo 2258. An Action of Debt brought upon divers Emissets of divers Wares Videlicet unum ahenum for five shillings unum scabum for six shillings and so divers other words which the Court could not understand what they signified in regard no Anglice was put to them and the Defendant pleaded Nil debet per patriam and the Jury gave a Verdict for the Plaintiff and Damages given for the whole Debt and moved in Arrest of Judgement and Judgement that the Plaintiff should have no Judgement for the insufficiency of his Declaration WEeks versus Wright unum Clericorum R. B. The Plaintiff exhibited a Bill against the Defendant for Money due upon an Obligation and Issue was joyned and the Cause tried and a Verdict for the Plaintiff and after Triall the Defendant moved in Arrest of Judgement that the Bill was not filed that it was not helped by the Statute of Jeofayles nor within that Statute for it is an Original but afterwards the Court granted that a new Bill should be filed so that the matter might be put to arbitrement and if the Arbitrators could not determine the matter the Court would And note the Court seemed to be of an opinion that the want of a Bill is not helped by the Statute WItchoct Linesey versus Nine Trin. 9. Jacobi rotulo 726. An Action of Debt brought upon an Obligation to perform the Covenants contained in an
Puttenhams Case the Reason because he was not in Execution before And for the second Objection although the Capias did not lie yet it is but Error for if the Court had Jurisdiction to hold plea of the Cause although the Process be naughtily awarded it is but Error of which the Sheriff shall not take benefit and therefore if a Woman have recovered in Dower and hath Damages in the Common Pleas and thereupon the party takes a Capias for the Damages and the party be taken and suffered to go at large it is an Escape 10 Hen. 7. 23. and if a Capias be awarded in the Common Pleas after the Record removed it is but Error and so ruled 13 E. 3. Title Barr 253. But if the Court hath no Jurisdiction in the cause as a Formedon brought in the upper Bench as it is 1 R. 3. 4. or an Appeal in the Common Pleas or where a Writ is awarded out of the Chancery returnable in Chester these are void and coram non Judice and there ought not to be any arrest upon such a Writ and he cited a Case Trin. 31. and 37. Eliz. in the Exchequer Woodhouse and Ognells Case ruled accordingy and as concerning the difference taken there is no other form of pleading but only quod prosecutus fuit quoddam c. without saying that it was by the award of the Court and the Court at that time did strongly incline that it was but Error at the most but Mich. 11 Ja. It was adjudged by the whole Court that the Capias could not ly and that it was onely Error of which the Sheriffe shall not take the benefit KKetleys Case Pasch 11 Jac. An Action of Debt brought for arrearages of Rent brought against R. upon a Lease for years the Defend pleads in Barr that the time of the Lease made he was within age to which the Plaintiff demurres and upon the first reading of the Record the question was whether a Lease made to an Infant be void and it was said it should be void otherwise it might be very prejudiciall to Infants whom the Law intends not to be of sufficient discretion for the mannaging of Land and also the Rent may be greater then the value of the Land to the great impoverishing of the Infant and took this difference where it is for the apparant benefit of the Infant a sa Lease made by an Infant rendring Rent and the like and when it is but an implied benefit as here for the Law intends that every Lease is made for the benefit of the Lessee although prima facie it seems to be but tail and trouble but the Court held it onely voidable as Election for if it be to the Infants benefit be that benefit apparant or implied it shall be void in no Case prima facie as 21 H. 6. 31. b. but the Infant may at his Election make it void for he shall before the Rent day come refuse and waive the Land an Action of Debt will not ly against him for otherwise such a Lease shall be more strong then any Fine or Record and great mischeif would insue and as to the prejudice it well be answered for if more Rent be reserved then the value of the Land he ought to have set it forth that it might have appeared to the Court which is not done for then clearly he should not have been bound for there had been no profit to the Infant as Russells Case is 5 Rep. 27. for if an Infant release it is not good except he hath received the money and it also appears by 21 H. 6. that if he did not enter and manure the Land that an Action of Debt would not ly against him but the principall Case was without colour for the Rent and taking the profits were Land as one day of the Reservation and secondly it was not shewed that the Rent was of greater value and thirdly the Defendant was of full age before the Rent day came HIggins Case Pasch 11 Jac. Action of Debt brought by Higgins against Yelverton was of an opinion at the Barr that if one be arrested upon a Processe in that Court and he puts in Bail and afterwards the Plaintiff recovers that he might at his Election take out his Execution either against the principall or Bail but if he took the Bail or arrested him or had him in Execution for the Debt although he had not full satisfaction he could not meddle with the Plaintiff but if two be Bail although one bee in Execution yet he may take the other also and Coderidge Justice was of the same opinion and Man the secondary said it was the daily practice there and so if the principall be in Execution he cannot take the Bail HAukinson versus Sandilands 11 Jacobi The Plaintiff brought an Action of Debt upon an Obligation for forty pounds against the Defendant who demanded Oyer of the Condition and afterwards pleads that the Obligation was made and delivered by him and one M. who is still living at D and demands Judgement of the Writ to which the Plaintiff demnrres the words of the Obligation were Noverint universi c. adquam solucionem bene fideliter faciend Obligamus nos vel quemlibet nostrum And whether this was should be accounted a Writ Obligation or Severall at the Election of the Plaintiffe was the question and Ger. Cook was of opinion that it should be brought against both and his onely reason was that at most the Plaintiffe had but an Election for the word vel could not be taken for et as it is 11 H. 7. 13. a Grant made to J. S. at J. D. is void and 20 H. 6. grant to two to them or to the Heires of one of them is not good and then if he had only an Election he hath made that already for the Defendant hath pleaded and averred that is was made by two joyntly by the appearance whereof he hath agreed to take it accordingly but Yelverton argued in this manner that although the words in an Obligation be not proper and apt yet if they be substantiall it is enough and therefore 28 H. 8. 19. utrumque nostrum is adjudged good and the 21 R. 2. 939. ad quam quidem solucionem obligamus nos singulos nostrum is adjudged severall and joint and for a direct authority he cited 7 H. 4. 66. where an Obligation was nos vel alterum nostrum and the Plaintiff brought severall Precipes and adjudged good that he might make it severall or joynt and all the Judges were clearly of an opinion that the Action was well brought for as it hath been said the Plaintiff had his Election and that Election would be said to be executed by the joynt Delivery for there was no cause to make Election untill the Bond was perfected and therefore though one delivers it at one time and the other at another yet the Plaintiff may have a caput Precipe if he
will for the Election is in bringing the Action and the words vel and are but Synonimaes and Champions Case Plowden 286. is taken for vel and the 21 E. 3. 29. in Mallories Case u is taken for and therefore they gave Judgement that the Defendant should answer over FReeman versus Shield Trin. 11 Jacobi and adjudged Pasch 12 Jacobi Freeman brought an Action of Debt upon an Obligation against Shield and proved Oyer of the Condition which was that if the Defendant should stand to the Award and Arbitrement of J. S. that then c. the Defendant pleads that the Arbitrators awarded that whereas there was no suit in the Chancery depending against the Plaintiff for divers matters that the Plaintiff should be acquitted of that suit and of all the matters contained in the same Bill and the Defendant further alledges that he did not make any prosecution of the said Bill but that the Plaintiff stands acquitted thereof the Plaintiff replies that the Defendant after the said Award such a year and day did exhibit a new Bill which did contain the same matter which the first Bill had and set forth at large both the Bills by which it appeared to the Court that it was so to which Plea the Defendant Demurres and the cause of the Demurrer onely was because the Plaintiff had pleaded that the Defendant had exhibited a new Bill but had not alledged any Processe taken forth upon the same Bill and if this be a breach of the award is the question Govin was for the Plaintiff and he was of opinion that it was a breach for the words were quod staret acquietatus and to be acquitted is not onely to be intended of an actuall disturbance or molestation but if the party be put in fright or is liable to any Processe it is a breach 8 Ed. 4. 27. a Condition to save one harmlesse if a Capias be awarded against him although it be not executed yet it is a forfeiture of the Bond nay though it was never delivered to the Sheriff for otherwise the Plaintiff should be in continuall care trouble for fear lest the Defendant should do it and so the Defendant may dally with him a long time which shal be mischievous therefore it may be resembled to 9 H. 7. where if a man sell a thing with warranty to pay for it at a day to come if the thing sold be corrupt the party may have his Action of deceit before the day of payment because it is in the others power to bring his Action and so it is in the Defendants power to serve the Plaintiff with Processe when he pleases and therefore it is a breach Coventry for the Defendant first because it is no such Process as can prejudice for neither goods nor Body shall be taken and therefore is not like the Cases before cited And secondly it is not such a process as our law respects or regards for a Bill is but as a Petition Haughton Justice was of the same opinion with the rest of the Judges but adjourned untill Hill 11. Jac. and an Exception taken because the Defendant had not answered the Declaration for the Condition is that he should be acquitted the Defendant pleaded that he hath been acquitted and Cook was of opinion that it was good and Pasch 12. Jac. Judgement was given for the Defendant by the whole Court KIpping versus Swain Trin. 11. Jacobi The Plaintiff brought an Action of Debt against Swain upon the Statute of 2 E. 6. for not setting forth of Tithes and declares whereas the Plaintiff being Proprietor of the Rectory of B. in the County of c. for the term of seven years and that the Defendant was Occupier of Lands within the same Parish for six moneths by a Devise made the tenth of March Anno decimo Jacobi And that the Defendant 27. Aug. the year aforesaid did cut his Corn there growing and that the tenth of September then next following the Defendant being Subdit dicti Domini Regis carried away the said Corn not setting out the Tenth according to the Statute and upon a Nil debet pleaded it was found for the Plaintiff and it was moved in Arrest of Judgement first because of the Plaintiffs own shewing he had no cause of Action against the Defendant for the interest of the Defendant in the Land was determined before the Tithes were carried away but the Court were of opinion that it was no Exception for although his interest in the Land was gone yet he remained Owner of the Corn for if Corn is cut although a stranger take them away before severance yet an Action will lie against him upon this Statute for otherwise the intent of the Statute may easily be defeated Another Exception was taken because the Plaintiff said he was Subdit dicti Domini Regis which is a Fault incurable for the Statute referrs Subdit to his politick capacity but Dicti goes to his natural and sole capacity and so the force of the Statute shall be determined by his Death and for this cause an Indictment upon the 8 H. 6. Contra pacem dicti Domini had been severall times reversed and of this opinion were three Judges but Haughton doubted of it and so it was adjourned PEnniworth versus Blawe Trin. 11. Jacobi The Plaintiff brought an Action of Debt upon an Obligation and prayed Oyer of the Condition which was that he should stand to the Arbitrement of J. S. of all Suites Quarrels Controversies and Debates from the beginning of the World untill the making the Obligation so that the Award be made in writing under the hand and seal of N. S. and should be delivered to the parties before such a Day c. and observe that the Sealing and Delivery of the Obligation was at twelve a clock the first of May the Defendant pleads in Barr that the Arbitrators made an Award and did deliver that to the parties above-said but said further that in the morning and before twelve a clock the first of May aforesaid one Debate and Controversie did arise between the parties concerning a Trespasse committed by the Plaintiff the same morning of which the Defendant gave notice to the Arbitrator before twelve a clock of the said first of May concerning which Trespasse the Arbitrator made no Award and therefore pretends the Award to be void and demands Judgement to which the Plaintiff demurrs and Yelverton being for the Plaintiff that the Plea was not any Answer to the Plaintiff and therefore Judgement ought to be given for the Plaintiffs Action is grounded upon an Obligation as single and the thing which helps the Defendant is the Condition indorsed to stand to the Award of S. the which is restrained so that it be delivered under the hand and seal and if the Defendant will plead the Condition against the Plaintiff he must plead it to be performed and executed according to the Submission by the
Arbitrator for else the Bond remaines as single and so in this Case the Defendant pleads that the Arbitrator made an Award and that it was delivered by the Arbitrator but whether it was delivered in writing or under his hand according to the Submission is not pleaded and therefore it is no Answer to the Plaintiff for he hath not pleaded an Award made according to the Condition and therefore the Bond is single Yea Cook argued for the Defendant and said that the Plaintiff by the Demurrer had confessed that the Arbitrator had made no Award as the Defendant had pleaded and then he shal never have Judgement for if it may judicially appear to the Court that the Plaintiff had no Cause of Action he shall never have Judgement and that the Plaintiff ought to have averred and joyned with a Traverse of that the Defendant pleaded to wit that the Arbitrator had made an Award and delivered it in writing under his hand and seal without that c. and as to the other matter of the Trespasse the same Day and so he might have demanded Judgement for his Plea doth but amount to the general Issue that the Arbitrators made no Award but Yelverton answered that it could not be pleaded in any other manner then he had pleaded it because he could not traverse it because the Defendant himself had pleaded that he made an Award and although the Demurrer confesse all matters in Deed yet they are such onely as are well pleaded as Burtons Case 5. Rep. 69. And also although the Award pleaded cannot be intended the same Award specified in the Condition yet the Plaintiff had good cause of Action and all the Court Fleming being absent were of opinion that the Plaintiff ought to recover for the Reasons before alleadged but as for that point whether the Controversie that grew in the morning should be arbitrated because there cannot be a fraction of Dayes it was not argued nor any opinion of the Court delivered onely Cook cited 5 E. 4. 208. that the Arbitrator ought to arbitrate of that because the Condition was of all matters untill the making the Obligation WHeeler versus Hayden Trin. 11. Jacobi W. Parson of the Church of A. brought an Action of Debt against the Defendant for Arrerages of Rent and declared upon a Lease made to the Defendant for four years if the Plaintiff did so long live and continue Parson c. and upon a Non demisit pleaded the Jury found an especial Verdict to wit that the Plaintiff had leased it to the Defendant for four years if the Plaintiff shall so long live onely and whether this Verdict was found for the Plaintiff or Defendant was the Question and Cook Serj. seemed that it was found for the Plaintiff for the main matter was that he should lease it if he so long lived and the subsequent words are of no effect because they contained no more then by the Law was before spoke of for the Law sayes that if he be non-resident or if he resign or be deprived that the Lease shall be determined like to the 30. Ass 8. A Lease to two and the longest Liver of them and the 17 E. 3. 7. A. A Lease to one of Land and a House for years and that the Lessee may make good profit of it this last Clause in both is idle and Dallidge was of the same opinion but Yelverton against them for the Plaintiff had intituled himself to the Action by such a Cause and if he fail in that it is his folly and shall not recover for the Lease upon which he declared had two Determinations the first by Death the second by removing and the Jury had found the Lease onely upon the first Determination and therefore various in substance and therefore the Jury have found against the Plaintiff as if a Lease be made by Baron and Feme if they shall so long live continue married both of them ought to be found Haughton to the same purpose for when a Parson makes a Lease if he shall so long live he doth take upon himself that he will do no Act by which the Lease shall be determined but onely by his Death for otherwise an Action of Covenant will lie against him but if the other Clause be added to wit and shall so long continue Parson then he may resign or be non-resident without danger and so there is great difference between the Verdict and Declaration and it was adjourned the Court being divided in opinion Dower MIch 6. Jacobi Dower may be brought as well against the Heir himself as against the Committee of the Ward but if an Infant be in Ward to a Lord in Chivalry the Dower shall be brought against the Guardian in Chivalry If Dower be brought against one who is not Tenant of the Free-hold the Tenant before Judgement shall be received and upon Default of the Tenant and after Judgement he may falsifie MIch 9. Jac. Dower demanded of the third part of Tithes of Wooll and Lamb in three several Townes and it was demanded of the Court how the Sheriff should deliver Seisin and the Court held it the best way for the Sheriff to deliver the third part of the tenth part and the third tenth Lamb Videlicet the thirtieth Lamb. In Dower against the Lord Morley the Tenant at the Day of taking of the Inquest after the Jury had appeared and before the Jury were sworn made Default and a Pety Cape was awarded and the Tenant at the Day in Banck informed the Court that the Tenant is but Tenant for Tenant for Life and that the Reversion is in one P. who at the Return in Banck ought to be received to save his Title and the Court appointed him at the Return of the Pety Cape to plead his Plea HIH. 13. Jacobi Allen and his Wife Demandants versus Walter in Dower of a Free-hold in Munden Magna Munden Parva B. the Sheriff returned Pleg de prosequend J. D. R. R. And the Names of the Summoners J. D. R. F. And after the Summons made and by the space of fourteen Dayes and more before the Return of the said Writ at the most usual Church Door of Munden Magna where part of the Tenements lay upon the 27. of October being the Lords Day immediately after Sermon ended in that Church he publikely proclaimed all and singular things contained in that Writ to be proclaimed according to the Form of the Statute in that behalf made and provided L. P. Ar. Vic. And Exception was taken to the Return because Proclamation was not made at the Doors of the Churches where the Lands lay and the Court held it not necessary but it was sufficient to make Proclamation at any of the Churches but the Return was insufficient because he said that he had caused to be proclaimed all and singular in that Writ contained and sayes not what and the Demandant released his Default upon the grand Cape CLefold versus
A special Verdict in an Ejectione firme the Question was upon the words of the Will which were that her Husband had given all to her and nothing from her and whether these words imply a consent and so an Agreement to the Devise of the Husband or no. And Foster Warburton and Walmsley that it was an Assent but Sir Edward Cook was of a contrary opinion and note she was made sole Executrix and she proved the Will and Justice Foster held it to be an Assent in Law The property of Goods cannot be in obayance they must be in the Executor Administrator or Ordinary and Warburton held that the words made an Assent and said that when the Bond is delivered to one to the use of another untill he dis-assent it is his Deed but when he dis-assenteth then it is not his Deed Ab initio if a Lease be given by Will to divers and made one of them his Executor in this Case the Executor must make his special Claime else he must have it as Executor and Sir Edward Cook held that the general Entry and proof of the Will is no Assent she must first have it as an Executor before she can have it as a Legatee a Legacy is waiveable but if the Law work it in me whether I will or no then I cannot waive it and therefore he held she should enter specially ROlles versus Mason Hill 6. Jacobi rotulo 2613. An Ejectment brought and the Question grew upon two Customes one was that the Copy-holder for Life may name to the Lord of the Mannour who should be his Successor in the Copy-hold and the other that the Copy-holder for Life may cut down all the Trees of wrong upon the customary Land and the third Question was whether the second Lessee of the Mannour may take advantage of the pretended Forfeiture for cutting down the Trees by the Law a Copy-holder shall have house-boot free-boot and hedge-boot and common of Turbary to burn in his house but he cannot sell them A Copy-holder by Custome may name his Successor and if the Lord refuse to admit him the Homage may set a reasonable Fine and so he shall be admitted The Lessee of the Mannour may take advantage of the Forfeiture but in this Case it is no Forfeiture and the Copy-holder may cut downe Trees for he hath a greater Estate then a sole Tenant for Life because he shall name his Successor APrescription goeth to one man and a Custome to many and Judgement for the Defendant MAson versus Strecher alios Pasch 7. Jacobi rotulo 606. An Ejectment brought for the Mannour of P. it was held by the Court that the consent of a Servant in the absence of him who is possessed of the Terme shall not out his Master of the Possession because the Servant hath no interest in the Land CRamporne versus Freshwater Pach 8 Jacobi rotulo 2742. An action of Debt brought upon an Ejectment the Plaintiff was non-suit upon his own Evidence because he declared upon a Devise made for three years and it was confessed by the Plaintiff that the Lands were Copy-hold Land and that the Plaintiff had not license to demise them for three years neither could he prove that by any custome he could demise them for three years without a license and so the Lessor was taken for a Disseisor by the opinion of the Court. CAffe versus Randall Trin. 9. Jac. rotulo 3299. An Ejectment brought against Randall and his Wife the Ejectment made by the Wife and not guilty pleaded and tried and it was moved in Arrest of Judgment because the Issue was pleaded in this manner Et dicunt quod ipsi in nullo sunt culpabiles c. And the Ejectment was made by the woman alone and ought to have been that she was not guilty and upon examination of the Plea Rol and Record of Nisi prius it appeared to the Court that the Plea Roll was right but the Record of Nisi prius mistaken but Serjeant Barker said that at the time when the Record of Nisi prius was tried the Plea roll agreed with the Record and was afterwards amended and Waller the prothonotary confessed that he amended the plea rol as upon his private examination of the roll but without notice that there was a Record sent down to try that Issue and therefore the Court ordered that the Record of Nisi prius should be amended according to the Plea roll which was done accordingly PAts versus Chitty Trin. 9. Iac. rotulo 2151. vel 2151. An Action of ejectment brought the Defendant pleads a concord with satisfaction in Bar the Plaintiff demurs and it was held by Winch and Foster a good Plea because the Action is not only in the realty for he recovers damages and possession which are meer Chattells Secondly Because the Defendant pleads the satisfaction as in discharge of that Action and all others and ten shillings for rests Warburton of the same opinion and he vouched the like case satisfaction is good Plea in a Quare impedit wherein a man recovers the presentation And Cook said that in all Actions wherein money or Damages are recoverable as well wherein the Defendant might wage his Law as wherein he might not it is a good Plea Pasc 3. Jacobi rotulo 1033. Eden and Blake but in matters where one Free-hold or Inheritance is recoverable concord is no Barr and in dower recompence in other Lands or Rent is no Barr. But by petition in Chancery but Rent Issuing out of the same Land demanded is a good Barr and in all Actions Quare vi armis wherein process of Outlary lies by the common Law concord or an Award is a good Barr 38 H. 6. title Barr satisfaction in trespass by an Estranger is a good Barr although it be without notice of the trespassor by the opinion of the whole Court CRaddock versus Iones Trin. Iacobi rotulo 2284. An Ejectment brought and declares upon a Lease made by W. Cotton Knight the Defendant pleads not guilty and makes a challenge and praies a venire facias to the Coroners because the Sheriff is Cozen to the Lessors Wife which is not a principle challenge but by favour and after a Triall and Verdict it was amended in arrest of the Judgment because it was mistried and Barker vouched a case in the Exchequer Chamber in 43 El. upon a Writ of Error between Higgins and Spicer upon a Venire facias awarded in the like manner and it was adjudged to be mistryed and it was then agreed that misconveyance of process is where one Writ is awarded in place of another to an Officer which of right ought to execute that process and he returns it this is helped after a Verdict by the Statute But if a writ be awarded to an Officer who ought not to execute that process and he returns it this is a mistriall and not helped by the Statute and Warburton said that Dyer
sides they shall recover costs and dammages LEe versus Edwards Trin. 19 Jacobi rotulo 470. The Case was in Replevin a Copy-holder claims Common in another mans Land the Lord infeofleth the Copy-holder of his Copy-hold Land whether he hath now lost his Common and held that he had but if a Copy-holder hath Common in the Lords waste and the Lord inseofeth him of the Copy hold with all Commons the Common is not gone Oabel versus Perrot Hill 9 Jacobi rotulo 2734. Tenant in Tail hath power to make a Lease for 89 years if three persons live so long and reserving the old Rent due and payable yearly and he maketh a grant in Reversion for years and whether that be good or no was the Question there being a Lease for life in possession the second Lease was for 89 years if three live so long for the matter in Law the Court held the Lease good but for want of an averment of the life of c. the Plea was not good ROberts versus Young Hill 9 Jacobi routlo 1835. the Defendant in a Replevin pleads that he offered amends and doth not shew that he offered it before the impounding of the Cattle and adjudged an ill Plea and the offer of amends cannot be made to him that maketh cognisance BAcon versus Palmer Trin. 12 Jacobi rotulo 3947. A Copy-holder in Replevin prescribes to have Common of pasture appurte nant to the Copy-hold the other party pleads an Extinguishment of Common because the Lord had inclosed Land lying in another field in which field and in the other field the Lord had Common by cause of vicinage and note that in Common for cause of vicinage if one inclose part it is an extinguishment of all the Common SHarp versus Emerson Mich. 12. Jacobi The Defendant makes avowry for Homage Fealty and Rent the Plaintiff prayes in aid and hath a Summmons in aid and at the return of the Summons the Prayee in aid was Essoined and after the Ession the Defendant moved the Court that the Homage might be put out of the Avowry which was entred with by consent of parties was raised out of the Will ARundell versus Blanchard and Jackson Pasch 13 Jacobi rotulo 2037. The taking in Replevin was supposed to be at Southwark and one of the Defendant pleads non cepit and the other Bailiff of the Governors of the possessions revenues and good of the Free-Grammar-School of c. for the Parishoners for the Parish of Saint Olaves in Southwark in the County of Surrey and the Advowry was made for damage fesant the Plaintiff prescribed for a way belonging to his house in the Parish of Saint Olaves in Southwark and the Venire facias was of Southwark in the Parish of Saint Olaves in Southwark and exception taken to that and held good because one Defendant had pleaded non cepit and another exception was because he had not shewed when the Corporation begun and held an idle exception for one need not shew when they were incorporated another exception was because the name of one of the Jury was mistaken because in the Return of the Venire it was to Lisney of Croydon and in the Pannell of the Habeas Corpus it was written to John Lisney of Croydon and because in sound it is all one and the Sheriff made oath that he was the man that was returned in the Venire facias the Return was amended in Court and Judgement given by the whole Court for the Plaintiff PAin versus Mascall Hill 12 Jacobi rotulo 3400. The Lord avows the taking of one Mare as for Rent behind so for the fourth part of a Releif and doth not expresse the same due for the releif and for the Rent the Plaintiff pleads tender and demurres for the Releif because he had not expressed the same and because he had distrained one thing for the Rent and Releif pretending that if one cause passe against him and another for the Avowant that he could not have a Return habend but the Court were of a contrary opinion but if two men shall distrain one and the same Mare for two severall causes and one hath Judgment for himselfe and the other for himselfe In this case no return habend can be made of the Mare BRown versus Goldsmith Trin. 13. Jacobi rotulo 607. A Court of Pipowders is incident to a Fine and a Court Baron to a Mannor And a Court Baron cannot be separated from a Mannor for it is a wealth to a Mannor the like of a Court of Pipowder to a Fair by the grant of a Mannor with cum pertinencijs the Court passes for it is an incident inseparable to the Mannor and a man cannot grant his Court but he may grant the profits of his Court. MAgistri socij Collegij Emanuel is in Cambridg The writ was adjudged naught in replevin because they had distrayned in their proper names for a Corporation as Maior and Comonalty cannot distrain in their own persons but by their Bayliff The Court held that the Sheriff could not take a Bond in replevin but must take pledges according to the old custome JVid versus Bungory Trin. 8. Jac. rotulo 3059. The Defendant shews that one was seised of Land in fee and held it by Knights service of a Mannor and for the rent of two Cocks and two Hens and the Lord grants the third part of the Mannor to another who avows for the seruice and the Cocks and Hens and held he could not alone avow for that joynt service but the other should joyn with him WEnden versus Snigg Trin. 11. Jac. rotulo 1137. In replevin the question was upon a Lease for life made to three to have and to hold to them the said A. B. and C. and every of them for the term of their lives and the longest liver of them successively one after another as they are writ in order And the question was whether this was a remainder or no and it was held to be a remainder upon the reading of the Record but if the grant had been only successively not saying as they are named in the writing it had been naught because he could not tell who should begin THorold versus Hadden Trin. 11. Jac rotulc 451. In replevin a Juror was returned by the name of Payly and in the distress the name was T. P. and in the Pannell he was written Baily and tryed by that name of Baily and moved in arrest of Judgment for the mistaking of the name And the Court held that if the right name was sworn yet notwithstanding the mistake it was good for if the name in venire was not mistaken all was good and the Sheriff ought to amend his misprision and the Court demanded if any one could swear that Paly was sworn and one then present in Court made oath that Paly was sworn and the Court ordered that it should be amended
a Fee simple conditionall and not an Estate tayl and he said that the sole question was if the Statute of Westminster 2. conevrted and changed Fee simple conditionall of copy-hold into an Estate tayl for if it be not an Estate tayl within this Statute it shall not be an Estate tayl at all for Littleton saith before the making of the said Statute these Estates were Fee simple conditionall and for that cannot be by prescription also he said that copy-hold Estate was so base an Estate that at the Common Law a copy holder had no remedy but only in the Court of the Lord But as to Littleton who sayth that he may have a Formedon in discender to that he saith that the Heire which hath Fee simple conditionall may have it by the Common Law for this was at the Common Law before the making of that Statute of Westminster 2. As it appears by 4. Ed. 2. Formedon 50. 10. Ed. 2. Formedon 55. And by Bendlowes in the Lord Barkleys case in the Commentaries 239. b. by Benlose where it is said by him that a Formedon in discender was not at the Common Law but in a speciall case where an Assise of Mortdancester would not serve the Issue that is if a man had Issue a Sonn and his Wife died and after that he takes another Wife and Land was given to him and to his second Wife and to the Heires of their two Bodyes begoten and they have another Sonn and the Wife dies and after the Father dies and a stranger abates there he sayth that before the Statute the youngest Soon could not have an Assise of Mortdancester and for that he shall have a Formedon in discender which was no other but a writ founded upon his Case see 10 of Ed. 2. Formedon 55. And for that when Littleton speakes of an Estate tayl of copy-hold that ought to be understood of Fee taile which may be Fee simple conditionall and so Littleton may be reconciled ãâã will well agree with himself also it seems that Copy-hold is ouââf the intent and meaning of the Statute of Westminster 2. For at the common Law in ancient times this was base Estate and not more in reputation then villinage and also if such an Estate then might be created of that which shall be perpetuall and no means to barr it for surrender of that doth not make any discontinuance and Recovery was not known till 12. Ed. 4. and he saith that in ancient time the name of Copy-holder was not well known for in ancient time they were called Tenants in Villinage and Tenants by copy is but a new terme see Fitzherberts Natura Brevium 12. b. and the old Tenures fol. 2. and Bracton lib. 2. charter 8. In gifts made to servants calleth them Villaines and Sokemen and in the old Tenures it is said that the Lords may expell them and upon this he inferred that if it be so baseâ Tenure though it be of Lands and Tenements yet they shall not be intended to be within the intent of the makers of the Statute of Westminster 2. and also by a second reason that is that it was not the intent of the makers of the Statute that this should extend to any Lands but only to those which are free Lands for the parties are called Donees and Feoffees and the will of the Giver should be observed according to the forme in the Charter of his gift manifestly expressed by which it appears that it ought to be of such Land of which a gift may be made and also the Statute provides that if the Donee levy a fine that in right it should be nothing by which also it appears as to him it seemed that it ought to be of such Land of which a fine may be levied And also for a third reason which was the great Inconvenience which would ensue upon it for then the Donees have no meanes to dispose of that nor give that for the advancement of his Wife nor her Issues and also the Lord shall loose his signiory for the Donee shall hold of him in Reversion and not of the Lord and it is resolved in Heydens Case 3 Coke 8. a. That when an act of Parliament alters the service Tenure Interest of the Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act shall not extend to Copy-holders see the opinion of Manwaod cheife Baron there and he agreed that admitting it shall be an Estate taile that then Surrender shall not make discontinuance and so he concluded and prayed Judgment for the Plaintiffe his Clyent see Hill and Vpchars Case which was adjudged in the Kings Bench and the principall case was adjourned untill the first Saturday of the next Tearme See Hillari 7. Jacobi in this Book in Replevin the Plaintiff was non-suited between the same parties See also Pasche 9. Jacobi 149. Hillary 1610. 8. Jacobi in the Common Bench. Wallop against the Bishop of Exeter and Murray Clark IN a Quare impedit the case was Doctor Playford being Chaplaine of the King accepted a Benefice of presentation of a common person and after he accepted another of presentation of the King without any dispension both being above the value of eight pound per annum if the first Benefice was void by the Statute of 21 H. 8. chapter 13. or not was the question for if that were void by the acceptance of the second Benefice without dispensation then this remaines a long time voide so that the King was intituled to present by Laps and presented the Plaintiff the Statute of 21 H. 8. provides that he which is Chaplain to an Earle Bishop c. may purchase license or dispensation to receive have and keep two Benefices with cure provided that it shall be lawfull to the Kings Chaplaines to whom it shall please the King to give any benefices or promotions spirituall to what number soever it be to accept and receive the same without incurring the danger penalty and forfeiture in this Statute comprised upon which the question was if by this last Proviso Chaplaine of the King having a Benefice with cure above the value of eight pound per annum of the presentation of a common person might accept another Benefice with cure over the value of eight pound also of the presentation of the King without dispensation the words of the Statute by which the first Church is made void are and be it enacted that if any parson or parsons having one Benefice withcure of Soules being of the yearly value of eight pound or above accept and take any other with cure of Soules and be instituted and inducted in possession of the same that then and immediately after such possession had thereof the first Benefice shall be adjudged in the law to be void See Hollands case 4. Cooke 75. a. This case was not argued but the point only opened by Dodridge Serjeant
that the Husband was subject to that then by consequence it was intended that all persons which were chargeable by the common Law shall be chargeable by the Statute and by the action which is formed upon that and by the common Law the Husband was chargeable and by consequence shall be chargeble by the Statute and he intends that there would be difference between actuall wrongs and others which are come by omission and if the VVife be the person which did the wrong then she shall be punished as well by Statute as she was before by the common Law also she shal be out-lawed and it hath been agreed that Ravishment of Ward shall be maintainable against the Husband and the wife if they both are Ravishers and also if the wife be Ravisher before marriage and after takes a Husband the Husband shall be charged with the damages and his Body shall be imprisoned and by consequence shall be abjured also shee may make an Executor by the consent of her Husband but admitting that she could not then the remedy is given against the Heir and she shall be within this Statute as well as other Statutes made in the time of the said King as the Statute of Westminster 1. 37. And shall be a Disseisor with force and shall be imprisoned whether the Husband joyn with her or not as it is adjudged 16 Assise 7. for all Statutes which provide for actuall wrong a married VVife shall be intended within them as it is 9 H. 4. 6. But the pleading of Joyntenancy there the Plea is the act of the Husband and so fayling of Record upon the Statute of 34 Ed. 3. as it is 16 Assise 8. for the Husband propounds the exception but if the VVife propounds the exception then she shall be within the Statute and shall be imprisoned 21 Assise So if a married VVife make actuall disseisin with force she shall be imprisoned 9 H. 4. 7. b. 8 Ed. 3. 52. 22 Ed. 2 Damages 20. 27 H. 6. Ward 118. And so the President Trinity 33 H. 8. Rot. 347. in a case between Thomas Earle of Rutland against Lawrence Savage and his VVife in Ravishment of Ward at the Nisi prius the Defendants make default and the Judgment was that the Husband and the VVife should be taken and upon that he inferred that the Husband should be subject and charged with the damages and so it is taken upon the statute of 35. Eliz. That the Husband shall be charged with Debt for the Recusancy of the VVife and shall be imprisoned for the not payment of it as to the verdict it seems that this is good and it shall be intended the VVard was marryed by the Defendants as in 33 Ed. 3. Verdict 48. It is found by verdict that Mulier enters and resolved that this shall be intended in the life of the Bastard or otherwise it is nothing worth and in Fulwoods case 4 Coke the Jury found that the Defendant acknowledged himself to be bound and that shall be intended according to the statute of 23 H. 8. and so here though that it be not found that the VVard was married by these Defendants yet it shall be so intended notwithstanding that nothing is found but only that he appeared married and so he concluded and prayed Judgment for the Plaintiff This case was sollemnly argued this Tearme by all the Justices that is Coke and Walmesley Warberton and Foster and upon their selemn arguments Coke and Walmesley were of opinion that a married wife is not within the statute and Warberton and Foster were of the contrary opinion and so by reason of their contrariety in opinion the Judgment was staid Trinity 9. Jacobi 1611. in the Common Bench. Burnham against Bayne THE case was A Man seised of divers Lands the halfe of them were extended by Elegit and before Judgement was had against him a new Elegit Awarded and if all the halfe which remaines or but the halfe of that which was the fourth part of all should be extended was the question And it was agreed by all the Justices that but the halfe of that which remaines and not the halfe of all which he had at the time of the Judgement But the halfe of that which he had at the time of the Elegit And if all which remaines be extended the Extent shall be void by all the Justices see 10. Ed. 2 Execution 137 16. E. 2. Execution 118. And here the principall case was A man hath a Rent of forty pound reserved upon a Lease for years and two Judgments in Debt were had against him at the Suit of Sir Thomas Cambell and three Judgments at the Suit of the Plaintiff the halfe was first extended by Elegit upon the first Judgment had at the Suit of Sir Thomas Cambell and after upon the Judgment had at his Suit the halfe of the residue was extended and after upon the Judgment at the Suit of the Plaintiff all the residue was extended and all the Justices agreed that the Extent was void for they ought to extend but the halfe of that which remaines and that was but the fourth part Trinity 9. Jacobi 1611. In the Common Bench. Trobervill against Brent THE Case was A man makes a Lease for yeares rendring Rent and after grants the Reversion for life to which Grant the Lessee for years attornes the Grantee acknowledgeth a statute and after surrenders his Estate the Conusee extends the Statute and distraines for the Rent and in Replevin avowes for the cause aforesaid and adjudged that the Avowry was good Agreed that Creditor may sue the Executors and the Heir of the Debtor also but he shall have but one Execution with satisfaction see the Statute of 23 H. 8. for such course in the Exche quer Note that no Court of Equity may examine any matter of Equity after Judgment which was precedent the Judgment see the Statute of 4 H. 4. chapt 23. Trinity 9. Jacobi 1611. In the Common Bench. Hamond against Jethro THe case was this Edward Hamond was Plaintiff in Debt upon a Bill against VVilliam Jethro and the Bill was made in this manner Memorandum that I VVilliam Jethro do owe and am indebted unto Edward Hamond in the Sum of ten pound for the payment whereof I binde my self c. In witnesse and after the in witnesse it was thus subscribed Memorandum that the said VVilliam Jethro be not compelled to pay the said ten pound untill he recovers thirty pound upon an obligation against A. B. c. And in the Count was no mention made of this Subscription but this appears when the Defendant prayes hearing of the Bill the which was then entered Verbatim of Record and upon that the Defendant demurred in Law Harris Serjeant for the Plaintiff agreed that if it had been in the Body of the Bill it ought to have been contained in the Count to inable the Plaintiff to his action but that which is after in witnesse
shall be barred And the second those which have Right title or interest accrued after the Fine levied by reason of any matter which preceded the Fine and in both cases the Estate which is barred ought to be turned into a right or otherwise it shall not be barred the which cannot be here for the estate is given by the Custome and it is to have his beginning after the Death of the first Tenant and though that the first Tenant commit Forfeiture yet he in remainder cannot enter for his time is not yet come as in 45 Ed. 3. is a collaterall Lease with warranty to the Tenant for life in possession this shall not be a barr insomuch that it is made to him which hath possession so if a man make a Feoffment upon condition and the Feoffee levy a Fine with proclamations and five yeares passe and the condition is broken the Feoffee may enter at any time otherwise if the Fine had been levied after the condition broken and so if the Lord be intituâed to have Cessavit and Fine is levied by the Tenant and five yeares passe he shall be barred and this was the cause of the Judgment in Saffins case insomuch as the Lessee had present interest to enter and this was altered into a Right by the Feoffment and then the Fine was a Barr but here he in Remainder hath no right till after the Death of him which was the first Tenant and then his right to the possession begins and then if a Fine had been levied with proclamation this shall be a Barr and so he concluded that Judgment should be entered for the Plaintiffe Coke cheife Justice accordingly and he agreed also that the sole question is if by acceptance of a Bargaine and sale by the first Tenant for life the Remainder be turned into a right and he sayd that right sometimes sleepeth but it never dyes but this shall be intended the right of the Law and not right of Land for that may be barred by Writ of Right at the Common Law and he intended that Copy-holdes are within the Statutes of Fines be they Copy-hold for life yeares in tayl or in fee for the third part of the Realme is in Copy-holdes and two parts in Lease for yeares and if these shall not be within the Statute then this doth not extend to three parts of the Realme and it is agreed in Heydons case 3 Coke 8. a. That when an act of Parliament doth not alter the Tenure Service Interest of Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act of Parliament shall extend to Copy-holds and also it is resolved to be within the Statute of 32 H. 8. Of Maintenance and also it is within the expresse Letter of this which containes the word Interest and Copy-holder hath interest and so also of Tenant by Statute Merchant then the question will be if the acceptance of a Bargaine and sale turnes that to a right and he intended that his Estate for life remaines though that it is only passive in acceptance of Bargain and sale and for that it shall not be prejudice more then if Tenant at will accepts a Bargaine and Sale for his Estate at will this notwithstanding remaines but if Lessee for years or life accepts a Fine upon conusance of right this is a forfeiture insomuch that it is a matter of record and it shall be an estoppel to say that he did not take Fee by that doth not admit the Reversion to be in another also insomuch that the Bargain and sale was executed by the Statute for this cause it shall not be prejudice as it was adjudged in the Lady Greshams case in the Exchequer 28 Eliz. Where two severall conveyances were made with power of Revocation upon tender of ten pound and adjudged by act of Parliament that a revocation was good and also that no license of alienation shall be made insomuch that it was by act of Parliament which doth no wrong and it is for the Trespasse for which the party ought to have license and if it be not Trespasse there need no license before hand nor pardon afterwards So if a man makes a Lease for yeares remainder for yeares the first Lessee accepts Bargaine and Sale this shall not turn these in remainder to prejudice Thirdly it seemes to him also that notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for life remains in Esse and is not determined For this differs from an Estate of Land for it shall not be subject to a Rent granted by the Lord the first Estate remaines till all the remainders are determined for the first tenant for life cannot surrender to the Lord also it is customary estate for by the Common Law this being granted to three successively this shall be determined and extinct for the third part for they three take into possession and the word successively shal be taken as void but here the Custome appoints that the remainder shall not have his beginning till the death of the first-Tenant and that they should take by succession and for that there is a difference between this customary Estate and other Estates at the Common Law and other surrenders for if a Copy-holder surrender to the use of another for life nothing passeth but for life only the Lord hath not any remainder by this Surrender and if this Tenant for life commits forfeiture he in reversion shall not take advantage of that and if at the Common Law Tenant for life remainder for life or in fee be and the first Tenant for life makes a Feoffment and after levies a Fine and resolved that he in reversion should not be bound till 5 years are incurred after the death of the 1. Tenant for life for then his title of Entry first accrues in apparancy and before that is in secrecy of which he in remainder is not held to take notice and so in this case he in remainder shall not be bound till five yeares are incurred after the death of the first Tenant and the rather insomuch as the first Estate remaines for that that the first Tenant was only passive and not active and so he concluded that Judgement shall be given for the Plaintiff insomuch that the Fine was no Bar and upon this concordance of all the three Justices in opinion no other Justices being present this Tearm Judgment was entered accordingly Pasche 1612. 10. Jacobi in the Common Bench. Danyell Waters against the Deane and chapter of Norwich IN covenant The case was this in 37 H. 8. the then Deane and Chapter of Norwich made a Lease to one Twaits for fifty yeares which ended 35 Eliz. in time of Ed. 6. The then Dean and Chapter surrendred all their possessions to the King which those newly endowed and incorporated by the name of Deane and Chapter of the foundation
is a stranger and doth not know if these Defendants are Executors or Administrators as it is said by Danby 9 Edw. 4. 13. And he conceived that the plea is good that the Defendants have not goods besides the goods which do not amount c. And divers presidents were cyted by him to this purpose as Trin. 18. Eliz. Rot. 1405. between Blanekson and Frye Hillary 40 Eliz. Rot. 902. Smalpeeces case and Trin. 44 Eliz. Rot. 1900. between Goodwin and Scarlet in all which the pleadings were all one with the plea in question and no exceptions taken to that and infinite other presidents may be shewed in the point for which cause he demanded Judgment for the Defendants Coke cheife Justice seemed that in an action brought against one as Executor he may plead that Administration was committed to him for such intent that the dead dyed Intestate and demands Judgment if action without traverse that he was Executor and with this agreed 1 Ed. 4. 2. a. 20 H. 6. 23. And so if the Ordinary be charged as Executor he may plead that he administred as Ordinary without traverse that he was Executor but only shewed that the party dyed Intestate and the Plaintiff ought to reply that he made a Will and the Defendant proved that and traverse that he dyed Intestate and with this agreed 9 Edw. 4. 33. and 1 Edw. 4. 11. And if an action be brought against Executor of his own wrong hee may plead that administration is granted to such an one and the Party dyed Intestate and demand Judgment if action for he shall not be charged for more goods then came to his hands But if a man administer of his own wrong and after rightfull administration is committed to him yet he may be charged as Executor of his own wrong insomuch that Right of action is attached in him But this seems for the goods that he hath administred before rightfull administration committed unto him And he cyted 14 Eliz. Dyer 305. b. where in debt brought against one as Executor which pleads never Executor nor ever administred as Executor and the Plaintiffe replies that he administred as Executor of the Will c. and so to Issue And in Evidence the Defendant shews Letter of administration to him committed of goods of the dead by which he administred them and before that he did not administer and this seems there to be good Evidence but the Book was Quere of that and for that he would rather plead that in abatement of the Writ and so the Book inclined also And he conceived here that the medling with the goods here by the Defendant as Administrator made him Executor of his own wrong insomuch that it was for Funeralls and when it is a work of Charity and the other is to preserve them And the Defendant hath not conveyed himselfe to be Executor insomuch that he said that administration was committed to him by an Arch-Deacon and he doth not say that Administration of right belonged to him to commit insomuch that hee hath but a sub-ordinate Jurisdiction And the Common Law doth not take notice that he nor no other but the Ordinary hath such power and for that the power of all which have such subordinate and peculiar Jurisdiction is pleaded that ought to be shewed as it seems by 1 Ed. 4. 2. a. b. 22 H. 6. 23. And the rather when this is pleaded by the Administrator himselfe which ought to have notice of that and make title to himselfe and if so it be then he conceived that the Recovery by Hornego was void and so all the goods confest remain as Assets Also he conceived that if the Executor allow a Writ to suffer Judgment to be had against him upon a Writ which is abateable he shall not have allowance of that but this shall be returned as Devastavit as in 10 Edw. 3. 503. a. If the Tenant vouch when he might have abated the Writ he shall lose the benefit of his Warranty So here and Com. Manwells case 12. a. 22 H. 6. 12. ãâã Also he conceived if a man be charged as Administrator where he is no Administrator he cannot plead that he never administred as Administrator but he ought to traverse the Commission of Administration as it appears by 21 H. 6. 23. And it seems also to him and by 9 Edw. 4. 33. that if a man be an Executor of his owne wrong and after administration is committed to him and he is charged as Executor after administration committed that the Writ shall abate otherwise if administration be committed hanging the Writ So if a man be made Executor and hee not knowing of that Iues letters of Administration he shall be named Administrator and if after when he hath notice of the Will he proves it then he shall be impleaded by the name of Executor for in such manner as the power is given to him by the Bishop he shall be charged and it seemes though that he plead where he is Administrator and is sued as Executor or otherwise in such manner that hee might have abated the Writ or suffer Judgment yet the Writ shall abate and he intended also that Executor of his owne wrong might pay debts due to another and shall be discharged and shall not be charged with more then he hath in his hands And if two Executors are joyntly sued and one confesse the action this shall bind him and his companion also for so much as he hath in his hands But if an Executor of his own wrong confesse the action this shall not prejudice him which is rightfull Executor and so he conceived that judgment ought to be given for the Plaintiff Warburton Justice conceived that the Barr is good notwithstanding that he did not shew that the Arch-Deacon had power to grant Administration insomuch it is no Inducement and the Defendant doth not relie upon it as Littleton saith in Trespasse where the Defendant pleades that it was made by two and the Plaintiff releases to one and if the Defendant pay due Debts it is not materiall whether he have Authority or not though that it be in another respect As if a man be Indicted of man-slaughter and aquitted and after is Indicted of Murder by the same man he may pleade another time aquitted insomuch that these are matters of substance But here it is but of forme and then if it be not shewed it is not materiall But the matter upon which he relied was insomuch that the Action was brought against two Executors and one hath confessed the Action And he intended without question that if this shall bind his companion and for that he will not dispute the other questions but declares his opinion cleerely that the Plaintiff ought to have Judgement against both these Defendants upon the confession of one and this shall bind his companion Wynch Justice conceived that the Plea is good by Administrator without traverse insomuch that it is to the Writ as it
this common being annexed to the Land though that the Estate be increased yet the common remaines his second reason was of the manner of conveiance and that was by confirmation and if that conveiance had been by Feoffment peradventure the common had been gone But a confirmation enures allwaies upon an Estate precedent and though that this somtimes inlargeth the Estate yet this doth not alter the Estate as to any priviledges annexed to it his third reason was of the matter of the confirmation and that is that he hath confirmed it with the appurtenances and this seemes to him admitting that the common had been extinct yet these words with the appurtenances amount to a new grant of a common as in the case of Corody in 22 Ed. 4. 17. and 18. If the King grant to one such a Corody as I. S. had he shall have so much bread and beere as I. S. had so here when he grants and confirmes that with the appurtenances this is with all such priviledges as I. S. had so here when he confirmes with the appurtenances this is with all the priviledges that the old Estate had and so this should be a grant of such common as was annexed to that and so it seemed to him for these reasons that the common remaines to which it was said by Davies of the other part that he agreed al the manners of Prescriptions but he denied that it was a locall Prescription that is to Land but only to an Estate and this proves well the words of the Prescription for the Copy-holder ought to prescribe that is that every customary Tenant within the Mannor c. So he hath his common in respect that he is customary Tenant and this is in respect of the Estate which he hath by the Custome and not in respect of the Land and that this shall not enure as a new Grant he cited a case to be adjudged Michaelmasse 43. and 44. Eliz. in the Kings Bench Rot. 367 Where in Trespasse the Defendant justifies the lopping of Trees in the wast of the Lord where the custome was that every Copy-holder might shride the Trees in the wast of the Lord and that he was a Copy-holder there and the Lord granted to him the Inheritance of his Copy-hold with all such Lands Tenements and Commons of Estovers pertaining to the Copy-hold and adjudged that insomuch that the Customary Estate was distroied this custome was not now annexed to the Land but being determined with the Estate cannot be said appertaining to it and for that the Justification ill and it seemed to him to be all one with the principall case and it was adjourned and after in Michaelmasse Tearme 8. Jacobi It was adjudged that the Common was extinct and not revived Hillary 7. Jacobi 1609. In the Kings Bench Proctor against Johnson THE Case hath depended seven yeares in this Court upon a Writ of Error was this Two Joynt Tenants for yeares of a Mill one grants his Estate severally to another and dies the Grantee doth not enter yet The other reciting the Lease to him made and to his companion joyntly and that his companion died so that all belonged to him as Survivor as he intended grants all the Mill to Johnson and all his Estate Right and Interest in that And covenants that the Grantee there shall continue discharged and aquitted of all Charges and Incumbrances or other Act or Acts done by him and after binds himselfe in a Bond to performe all Grants Covenants and Agreements contained in the Indentures according to the intent and meaning of the parties and after the Grantee of his companion entered into the halfe and the question was If the Bond were forfeit or not and it was adjudged in the Common Bench that the Obligation was forfeited And the matter was argued this Tearm in this Court by Yelverton of Grayes Inne that the Bond shall not be forfeited for the Bond was with Condition to performe all Grants c. According to the true intent and meaning of the parties and then let us see what was the intent of the parties and suerly this appeares by the recitall in the Indenture and for that he said that all appeares to him as survivor as he conceived so that he was doubtfull of that and for that his meaning was that if he had all then to grant all and if he had but a moity then to grant but the moity and this proves well the words subsequent where he saith that he granted the Mill and all his Estate Right and Interest in that so that he did not intend to grant more then his Estate and these words subsequent qualifie the generall words precedent and so it seemes to him that the Obligation shall not be forfeited And Sir Robert Hitcham the Queens Attorney to the contrary and that the Bond was forfeited for he hath bound himself to perform all grants and he hath not performed his Grant for he granted all the Mill and then though but a moity passeth yet he shall forfeit his Bond if the moity be evicted and for that if a man which hath nothing in the Mannor of D. makes a Lease by Deed indented to J. S. and binds himself to performe all Grants though that nothing passes yet if he enter and be ejected he shall have Debt upon his Obligation and he cited one Yelvertons Case to be adjudged but did not tell when where a man which hath nothing in the Mannor of Dale covenants with J. S. to stand seised to the use of him and his Heirs at Michaelmas and before Michaelmas he purchases the Mannor of Dale and it was resolved that no use shall be raised at Michaelmas for he had not the Mannor at the time of the Covenant and also it was resolved that no Action of Covenant lies upon the Covenant but he sayd that it is a cleer Case that if he had entred into a Bond to perform all Covenants in the Indenture that the Bond shall be forfeited though that he could not have action of Covenant upon the Covenant and also he sayd that he well agreed the Case of the Lady Russell which was adjudged also but Nescio quando where a man made a Lease for years of the Mannor of Dale except one Acre the Lessee binds himself to perform all agreements and after the Lessee enters into the Acre this shall be no breach of the condition for this exception is no agreement for nothing shall be sayd an agreement in an Indenture but that which passeth in Interest and so he sayd that though that the Lessee cannot have an Action of Covenant in the principall Case insomuch that this is so speciall yet the Bond shall be forfeited upon these Words grants and agreements and the Covenant special doth not qualify the generall express grant and after four Justices that is Flemming the cheife Justice Willams Yelverton and Crooke were of opinion that the Bond is forfeited and this for the generalty of the
Michaell then it is cleer that the Lessor hath no remedy by way of distress for the Tearm is ended before and by Action of Debt upon the Contract he hath no remedy as it seems as this case is for the Contract is that the Rent shall be paid yearly during the Tearm then when the Tearm is ended the contract is determined and for that the cheife Justice sayd That if a man makes a Lease at Michaelmas for a yeare rendring Rent yearely at our Lady day and the ninth of October which is after Michaelmas that the Lessor hath not any remedy for the Rent of the last halfe yeare for that is not reserved to be payd yearly according to the contract And Yelverton Justice agreed that the Lessee hath election as above but he saith when that is behinde the tenth day after Michaelmas then the Lessor shall bring his Action of Debt and declare that the Rent was behinde at the Feast of Saint Michaell and shall not make mention of the ten dayes after and Coke Justice sayd That it seems to him that the Lessee shall not have the benefit of these ten dayes after the last Feast for the words of the Lease are rendring Rent yearly during the tearme at the Feasts aforesayd or ten dayes after so that the Lessee shall have the benefit of these ten dayes during the tearme but not after then he shall not have these after the last Feast of Saint Michaell for then shall the tearme be ended And after in Trinity Terme 8 Jacobi The Case was moved againe and then Flemming cheife Justice conceived That the Lessee shall not have ten dayes after the last Feast and this upon construction to be made reasonably for otherwise the Tearm being ended the Contract should be determined with the Tearm and so the Lessor should be without remedy for his Rent and he sayd that reservations are not taken so strictly according to the letter And for that he cited the case of Hill and Granger in the Com. fol. 171. Where a man makes a Lease for a year And the Lease was made in August rendring Rent yearely at the Annunciation of our âady and Michaelmasse upon condition of Re-entry In this case the first payment shall be at the next Michaelmasse after the making of the Lease and not at the Annunciation of our Lady though this is first in words and this by reasonable construction for otherwise this word Yearely shall not be supplied and of this see the Action and so he said in this case Rent is reserved yearely during the Tearme at the Feasts of the Annunciation of our Lady or Michaelmasse or ten daies after he shall not have ten daies after the last Feast But Williams held his old opinion that the Lessor hath no remedy for the last halfe years Rent and it was adjourned Hillary 7. Jacobi in the Kings Bench. Grymes against Peacocke IN Terspasse for his Close broken The Defendant justifies that it was used within the Mannor of D. that every Farmer of such a house and averred that that had been allwaies let to Farme had Common in the Lords wast The house came into the hands of the Lord in Possession And he granted the house and the wast to J. S. in Fee J. S. Bargaines and Sells the house to J. N. with all Commons Profits and Commodities used occupied and pertaining to the same And after grants the wast to another If the Grantee of the house shall have Common in the wast was the question And Yelverton argued that the Common was gone for if he shall have Common this shall enure as a new Grant of a Common but this cannot so enure for two reasons First when a man will grant a Common he ought to shew the place in certaine where the Grantee shall have this Common or otherwise the Grant is void But here no place is shewed and for that it cannot enure as a new Grant of a Common Secondly If that be a new Grant yet this hath reference to the usage that is Quod Vsitatum est c. And this Vsitatum is void for it seemes to him that Lessee for yeares cannot alledge a usage for every Vsitatum ought to go in one selfe same currant not interrupted as in ths case of a Coppy-hold But here every new Lease is a new contract and so the usage is interrupted and then the Grant having the reference to the usage and that is void usage nothing shall passe by this Grant and for that in Long 5. Ed 4. 40. If a custome be against Law And that is confirmed by the Act of Parliament this is void confirmation for it hath reference to a void custome so here this Grant hath reference to the usage and for that it seemes to him that the Common is gone Hutton Serjeant to the contrary and that the Grantee of the Messuage shall have common for this usage is not a thing by strictnesse in Law appertaining to the Land but this hath gained his reputation that that shall passe very well in a conveiance by apt words And for that it will not be denied but if a man makes a Lease for years to one and grants him Common for all his Kine c. And after this Lease expires and he makes a new Lease and grants such Commons as the first Lessee had that this shall be a good grant of Common to the Lessee So he said in this case this grant of the house with all profits and commodities used occupied and appertaining to the said Messuage shall be said a grant of such Common which other Lessees of this Manner have used and this by reasonable construction in Law to make good the conveiances of Lay-men according to the common speaking for Benigne sunt Faciende Interpritationes Chartarum c. and for that he cited the case of Hill and Grange in the Comment Where the case was That a man made a Lease for yeares of a house and a hundred Acres of Land appertaining to that though the Land be not appurtenant to the house yet insomuch that this hath been usually occupied with the house this shall passe as appertaining to it and so 26. Assis 38. A man makes a Lease for life rendring Rent and after grants over the Rent to J. S. and dies The Heire grants and confirmes to the Grantee and his Heires the same Rent with clause of distresse and the Tenant for life dies now is the Rent reserved upon the Estate for life determined and yet this shall enure as a new grant of another Rent in quantity So in Sir Moyle Finches Case the case of uses and Durham in Ejectione Firme A Lease was pleaded of a Mannor whereof the feilds in which c. Were parcell And Issue was joyned Quod non Demiset Manerium And upon this Issue found it was that there were not any Free-holders but diverse Copy-holders and this was allwaies knowne by the name of a Mannor and it was adjudged that
Chancellor and University of Oxford commanding them that they should remove the University to such a place till the Parliament should be ended And after he sent his Writ to them againe which was directed to the Chancellor and University by which he wild that they should returne againe the Parliament being ended by which Writ he conceived that it appeares that the University was not Locall And this for two reasons First insomuch that this Writ was directed to the Chancellor and University and every Writ is directed to a person and not to a place Secondly the Writ that he should move and remove the University which is a thing impossible to do if it should be a place The other Record was 49. Ed. 3. And this declares that there was contention between the Schollers of Cambridge and the Townesmen there and the Schollers went to Northampton and there they made a Petition to the King that they might erect a University and the King sent his Writ to the Maior commanding him that he would not suffer the Schollers to remaine there and that he would there erect a University which proves that a University may be erected at the Kings pleasure and so cannot a place then admitting that a Corporation may consist upon a place yet the University not being a place that shall not be any prejudice to omit it And he cited a case which was adjudged as he said in the 26. of Eliz. which was thus The Deane and Canons of Winsor made a Lease for years by the name of Deane and Canons of new Winsor And this was adjudged no variance and the case of 5. Ed. 4. 5. of the Abbot of Saint Maries in York which see there and he said the Lord Norths Case was thus That Christ Church in Oxford was incorporate by the name of Deane and Canons of Christ Church in Oxford And they made a Feoffment by the name of the Deane and Canons of Christ Church in the University of Oxford and adjudged a good Feoffment And he said that in the argument of this case it was said by Gaudy that if a corporation were made of Dale and after Dale is made into a City they may make a Lease by the name of a City of Dale and the Lord Popham as he said put these cases That is that if a Corporation be founded of Oxford And that they made a Lease by the name of c. In the Precincts of Oxford this shall be a good Lease yet a thing may be within the Precincts of another place and not in the place and in the 32. Eliz. was the case of one Jermin and Wylles that if a Corporation be made by the name of Deane and Chapter of Saint Maries in Exceter is good But they agreed in this case as he said that if it appeare that they cannot be intended allone otherwise it should be and he conceived in the principall case that it is not necessarily that it should be intended the same place and for that he conceived in all those cases that the Lease shall be good and he said that there were neer two hundred Leases upon the same Title for which c. And after this it was argued in Michaelmasse Tearme 1609. 7. Jacobi by the Justices And the opinion of Crook and Williams Justices was that the Lease was good But Fenner and Yelverton to the contrary and Flemming cheif Justice argued that the Lease was not good but he said this should not be absolutely his opinion but moved a composition betwixt the parties But insomuch that the matter was not compounded in the same Michaelmasse Tearme Judgement was praied And Williams Justice brought into the Court a decree out of the Court of Wards concerning the Case which is put in 7. Eliz. Dyer and 1. Coke Porters Case And upon the decree appeares that an Information being exhibited there against the Master and fellows of Trinity Colledge in Cambridge concerning certain Land they made Title to by a Devise made to them by the name of Masters Fellows and Schollers of Trinity Colledge in Cambridge and this Devise was made four and five of Phil. and Mary and the Decree recyted that upon this were two great Doubts and Questions conceived First If this Devise were good and also by the Statute of 1. and 2. Phil. and Mary which inabled to devise to spirituall Corporations And the second point was That where they were incorporated by the name of Master Fellows and Schollars De sancta and Individua Trinitate in the University and Town of Cambridge if this devise made to them by the name of Master Fellowes and Schollers of Trinity Colledge in Cambridge was good and the Decree rehearsed that the opinion of all the Justices in England was First That it was a good Devise within the Statute of one and two Phillip and Mary as it is reported in the Booke before cited Secondly That this was not such a mis-naming of the Corporation which made the Devise voyd and Williams Justice produced this Record as he sayd to fortify his opinion And he conceived no difference between a Grant and a Devise nor no difference when an Estate or conveyance made unto them and conveiance made by them and for that he cited the Case in the 19 H. 8. in Dyer where if a man devise Land to the Abbey of Saint Peters where the foundation is Saint Paul this is a voyd devise and so in a grant And Crooke Justice to the same Intent Yelverton Justice to that Decree shewed by my Brother Williams I conceive a great Difference First a Will and a grant for in case of a Will it sufficeth if they be described by a name by which the Intent of the Devisor may be sufficiently known and a man is intended to be Inops consilij at the time of the Devise made and for that that he hath not any to instruct him oâ the precise name of the Corporation for which c. And Fenner Justice to the same intent and if a man devise to one and his Assignes as it is a Fee-simple in case of a Devise so it is not in grant and so devise to one and his Children is an Estate Tayl in case of Devise but not in a grant Flemming cheife Justice to the same intent and to the Decree he sayd that this is as good Law as ever he heard in his life but yet he conceived also that there is a great difference between a Grant and a Devise as if a man devise to a Monke the Remainder over this is a good remainder so devise to one the Remainder over and the particular Tenant refuse this is good in a Devise contrary in grant and to the case which is put by my Brother Williams out of the 19 H. 8. Dyer there is a great difference where there is not any such person at all to take there the Devise shall be void as where the Devise to the Abbot of Saint Peter where
Booke of 33 H. 6. 47. is but the opinion of Prisot and Lacon And the principall case there depends upon another point Fitz. 246. before cyted is but a quere and Eitz himself doubted of it and the book of 44 Edw. 3. Fitz. Execution 41. is but the opinion of Percye But the Judgment upon the principall point is otherwise And the principall case in Blunfields case 5 Coke was upon another point also as it appears by the Booke and so he concluded with the Judgment before cyted to be in the Kings Bench Pasche 43 Eliz. between Williams and Cuttris which was direct in the point according to his opinion and prayed Judgement for the Defendants in the Scire Facias and it is adjourned This Case was argued in Trinity Tearm next ensuing by all the Judges of the Common Pleas and first Foster the youngest Judg argned that the death of the Defendant in Prison being in Execution was no satisfaction but the Plaintiffe may have a new execution against his Executors for he said it was an old saying That debts went before deadly sinne And that every one ought to satisfie his debts by the Law of God before Legacies given to charitable uses And so by the Law of the Realm if it be not the default of the Plaintiffe as it was not in our Cause for the death of the Defendant in Prison was the act of God and the Executors have confessed by pleading that they have assets and the Plaintiff hath nothing but griefe and pain and he said as before that at the Common Law no Capias lay till the Statutes of Marlebridge Chap. 23. and Westminster the 2. Chap. 11. Capias was given in Accompt and then the statute of 25 Edw. 3. Chap. 17. gives such like Processe in debt which was in Accompt and then in Accompt Capias ad Computandum lyes and in debt Capias ad Satisfaciendum And if in Accompt the Defendant was adjudged to accompt and Capias ad Computandum be awarded and he taken by force of that and committed to Prison and here dyes a new Writ shall be awarded So in debt if the Defendant be taken by Capias ad satisfaciendum new Writ shall be awarded against his Executors see 1 Edw. 3. 24. 1 H. 7. 5 Coke 92. Blundfields case for it is only the default of the Defendant that the debt is not satisfied and for that it is no reason that the Plaintiff should be prejudiced by that and 11 H. 4. 44. and 45. by Skreene Debt upon an Escape doth not lye against the Executor of the Sheriff but new Processe shall be awarded against the Prisoner which is escaped for a man shall not take advantage of his own wrong as in the case of Littleton If the sonn makes disseisin and enfeoffs the Father which dyes the sonne shall not take advantage of this Discent because he was particeps criminis and he said it was no wrong to any if execution were made of the goods of the Testator and it is mischievous to the Plaintiffe for he shall loose his debt And to the Objections which have been made that there is an end of Processe when the Defendant is taken by Capias and dyes in Execution the which he agreed as long as the Defendant lived but after his death he may make new election 47 Ed. 3. Fitz. Execution 41. by Percye And it appears by the pleading in 17 Ed. 3. That Judgment Execution without satisfaction is no Plea in Bar. And also he cyted the Register 285. and Fitz. Na. Bre. 246. 19. Ed. 3. 21 H. 6. 5. where the Plaintiff had effectual execution which was satisfaction 44 Ed. 3. 21 Edw. 4. 1 Edw. 4. 8 H. 7. 16 H. 7. to the same purpose for which Dodridge cyted them before And also he said that the Judges have always had respect to the satisfaction of Debts and for that would not bayle one in Execution upon a Writ of Errour where Errour indeed was assigned but suffers him to remain in Prison till the Judgment were reversed But here the Plaintiff hath neither Bale nor any satisfaction but griefe and pain And in the 21 of H. 7. the Sheriff returned that the Defendant had no land but lands in use and was adjudged that he should execute the Elegit upon these Lands such was the respect that the Judges have to Executions and to the Case of 35 H. 6. 47. This is but the opinion of Lacon which erred in the principall case and may as wel erre in this point and his opinion also is so intricately penned that he cannot understand it And Martins opinion also in 7 H. 6. 7. is against the Judgment of the principall case And to the Objection that the Party had determined his Election by the Execution of the Capias he agreed to that with this difference that is if the Plaintiff sue Scire facias the Sheriff levyed part that this notwithstanding the Plaintiff may have Capias for the residue and so Elegit after Fieri facias or Capias for there is not any Entry made of awarding of fieri facias or Elegit But the Plaintiff only sued that out of the Court see 44 Edw. 3. 18 Ed. 4. 31 Ed. 3. 17 Ed. 3. 20 Ed. 2. 22 Assis 17. H. 7. 1. And so he coucluded that the Judgment shall be given for the Plaintiff in the scire facias Warburton Justice conceived the contrary that is that the Plaintiff in the Scire facias shall be barred And he agreed and said that none will deny but that Debts shall be paid but that ought to be according to the rules of the Law For by the Common Law the body of the Defendant was not lyable to execution and then it is to examine in what cases he is at this day subject to execution and though in Trespasse Capias lyes at the Common Law but in Debt no Capias lyes till the Statute of 25 Edw. 3. which gives the same processe which was in Accompt and this is as well in the Originall processe as in the Judiciall and Elegit was first given by the statute of Westminst 2. And this was of the half of the Land But Levari facias was at the Common Law of the profits of the Land That in debt Acceptance and Election binds the party and so this remains for the said Statutes being in the affirmative doth not take away that nor abate it and by that if Conusee of a statute accepts Land extended at too high a value he is bound by that 22 Edw. 3. 32. H. 6. 15 H. 7. And that when the Party hath Judgment he hath election to have execution by Fieri facias Elegit or Capias for he hath determined his Election So if he makes his Election of a Capias at first he cannot have Elegit after 30 Edw. 3. adjudged 32 Edw. 3. Processe 52. according Long 5 of Edw. 4. by Markeham and others and the reason which is given in
22 Assise 24. 48 Ed. 3. 8. Register 47. And in case that one common person hath any Office which he cannot exercise by a Deputy yet if he be imployed in the Kings service as if he be made Ambassador out of the Realm or other such imployment he may during his absence make a Deputy and this shal not be forfeiture of his Office and an Earl in ancient time was not only a Councellour of the King but by his Degree was Prefectus sive prepositus commitatus as it appears by Cambden 106 107. Comes prefectus Satrapas which is Prepositus comitatus and was in place of the Sherif at this day and when that he was Sherif though that he had the custody of the county committed unto him which was a great trust yet then by the Common Law he might make an under Sherif which was but a Deputy the like Holinsheads Chronicle 463. Amongst the customes of the Exchequer he called the under Sheriff Senescallus which agreed with the Definition before for he held the place of Sherif himself and by the statute of Westminster 8. chapt 39. It is sayd that Vice comes est viccarius commitatus and if a Barony discend upon the Sheriff yet he shall continue Sheriff 13. Eliz Dyer and Britton 43. If a Rybaud strike a Baron or a Knight he shall loose his Land And Tenant by Knights service may execute it by Deputy 7. Ed. 3. Littleton And if it be so in the case of a Sheriff which hath the County committed to him that he may make a Deputy by the Common Law upon that he inferred that the Steward which hath but the Mannors of the King committed to him that he may make a Deputy And also he said that the words in the last clause that is Volentes precipentes that the Officers and the Subjects should be attendant expoundes and declares the intent of the Queen for the words are Omnibus premisses and the Grant of the Office of the Stewardship is one of the premisses and so he concluded upon these reasons that Judgement shall be given for the Plaintiff and that the Grant was good and the Action wel maintainable And oâ this opinion were Warburton and Foster Justices And Judgement was given accordingly this Trinity Tearm 8. Jacobi And Coke cheife Justice remembred a Report made by him and Popham cheife Justice of England upon reference made to them that this Patent was good and that the Earle of Rutland might exercise this Office by Deputation and he conceived that there were other words in the Patent which were found by the Jury that the said Earle should have the said Office Cum omnibus Juribus Jurisdictionibus c. as full c. as any other Patent hath been had and withall the Appurtenances and it seemed that a former Patentee had power by expresse words to execute that by a Deputy and he conceived though these words Adeo plene c do not inlarge the Estate yet this inlargeth the Jurisdiction of the Officer as in 43. Ed. 3. 22. Grant is made by the King of a Mannor to which an advowson is appendant Adeo plene tam amplis modo forma c. And these words past the advowson without naming that and he said it was adjudged Hillary 40. Eliz. in Ameridithes case where the case was the Queen granted a Mannor Adeo plene intigre in tam amplis modo forma as the Countesse of Shrewshury or any other had the same Manno r and Queen Kathrin had the same Mannor and diverse liberties with it of great value during her life and adjudged that these liberties should passe also by this Patent by these words and so in the principall case if the former Patent had been found also by the Jury and so was the opinion of Popham and him and was certified accordingly FINIS A Table of the Second Part. ARch-Bishops Jurisdiction 1 2. 28. Admiralties Jurisdiction 10 11. 13 16 17. 26. 29. 31. 37. Arbitrement satisfaction what 31. 131. Assumpsit 40 41. 273. Arrianisme one committed for it 41. Assets 47. Almony 36. Apurtenant what shall be said 53 Action sur Case by a Commoner for words 55. 84. 100. 119. 122. Avowry the whole plea 62 63. 102 Agreement what 72 Account 76 Audita Querela 81. 83. 168 Atturnment good by one under age where and why 84 Award void 100 Age not allowed in Dower 118 Administration repealable 119 Accord with satisfaction good plea where where not 131 Attorney ought to finde Baile in an Originall not Bill 134 Action sur Assumpsit 137 Assuâpsit against an Executor where maintainable 138 Assets in Formedon what 138 Attachment 144. 168 Assent to a Legatee 173 Ayd prayer 191 Attachment for contempt of the Court 216 Accessary null unlesse there is Principall 220 Assignment of an estate suspended 225 Assise of novel Disseisin 229 Abatment of brief per entry 231 232 Abatement de facto and by plea differ in what 235 Agreement and Arbitrement good pleas where 132 Agreement by word to keepe backe tythes 17 Admiralls Commission for measuring of Corne 29 Administration during minority of c. 83 Atturney brings Debt for Trees 99. Arbitrement 130. 131. Arrest of Judgment 167. Acts what to make an Executor de seu tort 184. Attachment of Priviledge for an Estate against the Marshall c. 266. Assise where it may lye sans view 268. Assise the Recognitors challenged ibid Ajournment of the Tearm 278. Annuity or Writ of Covenant where 273. Arbitrement submission and revocation 290. Approvement of Common 297. Account 308. Award submission 309. Arbitrement 310 Arbitrement who it binds 323. Assise del Office 328. B BIshop not displaceable 7. Baron alone cannot sue for not setting forth Tithes without the feme proprietory 9 Ballast granted to Trinity House a Monopoly 13. Baron and Feme joyn where 66. Baron Judgment against an Executor 83 Baron how chargeable pur sa feme 92. 93. 95. Bar in trespass 121. By-Laws whom they bind 180. To what extended 258. Baron and feme take by intirity where 226. Barwick whether part of England or Scotland 270. Bayle 293 Banckrupt actionable 299. C CHase an action not to be divided 56 Cui in vita of Copy-hold 79. Custome for pound breach 90. Common Recovery 16. Copiholder shall hold charged where 208. Confirmation to a copiholder destroys common 209 210. Consultation after it no Prohibition grantable upon the same Libell 247. Cape grand Petit 253 Cause of a commitment traversable 266. Count in trespass after the teste del Breife 273. Covenant to pay Rent 273 Continuance Ibidem Chellenge 275 Customes of London argued by the Justices 284. 285. 286. Certiorari 312. Capias ad satisfaciendum no satisfactory execution 312. 313. 314. 315. 316. Copy-hold at common Law 44. Creditor may sue both heireand Executor 97. Court of Equity not proper after Judgment 97. Copyhold intayled 121. Covenants direct and collaterall how they differ 136.
that is naught for it is a several Lease of their Moities and you must declare Quod cum one of them demised one moity and the other the other moity and good If a Tenant in Socage hath Issue and die his Issue being under the age of 14. years the next Freind of the Heir to whom the Inheritance cannot descend shall have the Guard of the Land untill the Heir come to the age of 14. years and he is called Guardion in Socage and in pleading a Lease for Life you are never to alleadge the place where the Lease was made because it passeth by Livery which was executed upon the Land He that pleads a Demise ought to shew that the Lessee entred and he that pleads a Descent ought to shew that he entred and an Exchange is a good Plea in Bar but it shall never be adjudged a good Exchange except this word Escambium be used in the Charter of Exchange HOpkins versus Radford A Defendant shall take no benefit of his own wrong In Sir James Harringtons case the Original was returned Quinque Pasch and the issue joyned that day and the Venire facias returned that day and held naught by the Court upon the first motion A future Lease cannot be surrendred but drowned For things in Action a Deed of Gift is void as Debts without Specialty although he say Goods Chattels and Specialties but for other Debts by Specialty and Goods it is good and for the Debts in Action after the Death of the Party Administration is to be granted and the Administrator is to have the Goods RAiner versus Mortimer One had Judgement upon a Scire facias to have Execution and a Capias ad satisfaciendum returnable 15. Martini and that Writ was returned Album Breve and a Testatum thereupon and the Defendant taken and this matter was moved to the Court and a Supersedeas prayed that the Testatum issued out erroneously because the Capias was not returned and it was granted by the whole Court because the Capias was not returned One seised in Fee may bargain and sell grant and demise Land to others and their Heirs to the use of one for years because he hath a Fee-simple but Lessee for years cannot bargain and sell his Lease to the use of one for years If a Marriage is intended between two men and one of them in consideration that the other hath upon the Marriage assured Land to his Son he doth assume to pay to my Son such a Summ immediately after the Marriage if the Money be not paid the Son must have the Action and not the Father MIch 5. Jacobi 61. One Jury-man appear in Court and when he came to the Barr to be sworn he informed the Court that he was eighty years old and prayed to be dischargâd and the Court could not grant it nor pass him by and swear others without committing Error except the Parties would consent for it is Error to skip a Juror who is returned if he appear and therefore the Juror was drawn by the consent of the Parties TRin. 6. Jacobi Upon a Levari facias out of a Court Baron Goods cannot be sold without a Custome to sell the Goods and if Goods be attached by Pone out of a Court Baron the Defendant shall not lose his Cattle otherwise it is if it be a Process out of the Common Pleas then the Defendant loseth his Cattle for not appearing if you lay that you have a Court time out of minde to be held before a Steward you must shew what Pleas you have used to have Conusance of A Sheriff returned but 21. onely upon a Venire facias and at the Triall ten onely appeared and a Decem tales was awarded and tried and Verdict for the Plaintiff and this matter was moved in Arrest of Judgement for that the Sheriff had returned but 21. and the Court were of opinion that if 12. of them had appeared that it had been good notwithstanding but because 10. onely appeared of the principal therefore it was naught and Judgement arrested for that cause If a Juror be sworn of the principal and the Jury remain when the Jury comes again he shall be sworn again TRin. 6. Jac. rotulo 251. Dunnall versus Giles A special Verdict and the Question was a man being possessed of a terme devises the whole terme to A. for Life and if he dies within the terme to B. during the minority of C. and that C. when he comes to full age shall have the Remainder of the terme and held a good Devise To devise Land or Terme or Lease all one it is an Executory Devise If one surrender Land to the use of an Estranger that is to resty the use in Reversion for the Land is in him immediately If a man hath a Rent in esse you cannot grant that in Reversion after your Death but if I surrender to the use of one after my Decease is not good by his opinion of Warburton and Daniel If the Sheriff shall by vertue of a Fieri facias levy the Debt and Damages of a man and make a Return that the said Goods remain in his hands for want of Buyers the Property remains still in the Defendant although the Sheriff hath Possession of the Goods A Sheriff may sell Goods levied upon a Fieri facias out of his County In Watermans case the Issue was whether a Copy-holder in one Town had Common in Land lying in another Town and the Plaintiff shews that he is Lord of the Hundred of C. within which Hundred one of the Villages lie and prayes a Venire facias of the Town next adjoyning to the said Hundred and it was granted and tried and Exception to the Triall for that the Venire was not of both Villages An Alien born being no free Denizen may defend and bring a Writ of Error and it is no Plea to say that he is an Alien born Note by the Common Law the Lord of the Mannour may come and take away a Tree cut down upon the Copy-hold Land by his Copy-holder without laying a special Custome for it If there be an unlawfull Marriage as the Brother doth marry his Sister and they have Issue and one of them dieth before any Divorce had between them now after the Death of one of them the Issue cannot be bastarded as in Cordies case 39 E. 43. 22 E. 4. After a general Imparlance one cannot plead an Outlary in Barr to an Action of Trespass or Case but it must be pleaded in abatement except he be outlawed after the last Continuance for you shall plead nothing in Barr but what goeth to the pit of the Action now the Damages in Trespass or Case are not forfeited by Outlary as Debt because of the incertainty To the Owner of the Soil on both sides of the way of common right belong the Trees that grow in the Lane whether
open any Chest which is locked and take the Goods in that in Execution and if he doth it not an Action of Case will lie against him In Debt if it be demanded by Original the Process is Summons Attachment and Distress and for Default of sufficiency upon a Nichil returned Process to the Outlary if the Summons or Attachment be returned an Essoyn lies And Wager of Law lies if the Count be upon a simple Contract And if the Parties be living which made the Contract or Debt against an Heir the Writ shall be brought in the Debet but when it is brought against an Executor or Administrator or of Chattels it shall be in the Detinet tantum The Judgement in Debt where the Demand is in the Debet detinet is to recover the Debt Damages and Costs of Suit and the Defendant in misericordia but if the Defendant denies his Deed then a Capias for his Fine issues out And if the Original be in the Detinet for Chattels then the Judgement is to recover the thing in Demand or the value thereof and Costs and Damages and the Process of Execution is a Distress to deliver the Chattels or the value and Damages And if the cause of Action be against Executors or Administrators the Judgement is to recover the Debt and Damages of the Testators Goods if the Executor hath so much in his hands and if he hath not then the Damages of the Executors or Administrators proper Goods And if the Sheriff upon a Scire facias return a Devastavit then a Fieri facias or Elegit may be sued out to levy the Debt and Damages of the Executors or Administrators proper Goods And if the Executor plead that he never was Executor and it is found against him that he hath administred but one Penny the Judgement shall be to recover the Debt and Damages of the Executors own Goods Debt brought upon a Record the Execution shall be brought where the Record remaines MIch 9. Jac. rotulo 2304. Throckmorton Administrator versus Hobby The Aministrator releases and afterwards the Administration is revoked and declared by Sentence to be void and null and then the Release is void TRin. 9. Jac. rotulo 917. Brookesby Vaux versus M. Tresham Executor of the Testament of T. T. and Exception was taken to the Defendants pleading because the Defendant pleads divers Statutes to divers persons and the Plaintiff shews that some were by fraud and that others were for performance of Covenants that were not broken and for other Statutes that they were satisfied and the Defendant in pleading a Statute by three sayes two of them did not pay and doth not say that the three nor any of them have not paid In pleading of a Statute it must be generally pleaded that it is a true Debt And my Lord Cook held that a man without a Defeasance may plead that the Statute was acknowledged for Payment of a lesser summ and it was held that if the Count be good and the Plea naught and Replication naught if it appears that the Plaintiff had good cause of Action the Plaintiff shall have Judgement And Warburton said that one may plead generally that the Statute was acknowledged by fraud without shewing the special matter SPeak versus Richards The Plaintiff brought an Action of Debt for Money levied by the Sheriff upon a Levari facias and not paid to the Plaintiff upon the Sheriffs Return upon the Levari issued out of the Chancery and that it would well lie But note the Plaintiff had concluded his Demurrer ill for he demurring to the Defendants Plea which was grounded upon a Release should have demanded Judgement if the Defendant should be admitted to plead a Release which was made after the Sheriff had made his Return TRin. 15. Jac. rotulo 1630. Parson versus Middleton Action of Debt brought to be tried in Durham and the Record sent to the Chancellor of Durham because the Bishops Sea was empty and before the Day given by the Judges a Bishop was elected and he sent the Record and not the Chancellor MIch 15. Jac. rotulo 2118. Maddock versus Young The Plantiff brought an Action of Debt for an Escape against the Sheriff upon a Capias utlegat after Judgement the Defendant pleads that there was no such Record of the Recovery of the Debt and Damages to which Plea the Plaintiff demurrs pretending he had not directly and plainly answered the Declaration but Judgement was given for the Defendant Where a Capias is not the Process a Capias ad satisfaciendum is not the Execution and no Capias lies against a Countess or Baroness and at Common Law no Capias ad satisfaciendum would lie but onely where the Action was Vi armis but onely a Levari facias MIch 14. Jac. rotulo 3140. Bawkey versus Isted An Action of Debt brought upon the Statute of E. 6. for not setting forth of Tithes of Land lying within the Parish of Horsted parva the Defendant pleads Nil debet per patriam and after Triall and a Verdict Exception was taken to the Venire facias because the Venire facias was of Horsted parva and not of the Parish of Horsted parva but the Court were of opinion that it might be either of the Town or Parish of Horsted parva and Judgement was given for the Plaintiff because both the Town and Parish were named in the Record An Action of Debt brought against an Administrator who pleads that the Intestate was indebted to him and that he had fully administred and that he had no Goods or Chattels which were the Intestates beyond Goods and Chattels to the value of 10. l. which the Administrator retains towards satisfaction of the said Debt to him due the Court were of opinion that the Administrator ought to plead generally fully administred else the Debtor should be prejudiced in taking Issue upon that Plea the Case was between Fox and Andrew PAsch 6. Jac. rotulo 751. Sharpley versus Hurrell Action of Debt brought upon an Obligation and the Defendant pleads the Statute of Usury and sets forth that one Ship went a fishing to New-found-land which Voyage might be performed within eight Moneths the Plaintiff delivered fifty pounds to the Defendant to pay sixty pounds upon the Return of the Ship to Dartmouth from fishing and if the Ship should not come to New-found-land by reason of Leakage or Tempest should return to Dartmouth then the Defendant should pay the principal Debt and if the Ship should never return he should pay nothing and it was held by the Court that it was not Usury for if the Ship stayed at the New-found-land two years he should pay but 60. l. An Action of Debt brought against an Executor who pleads that he had nothing in his hands at the time of the Writ purchased and saith not nor any time after the Plea is not good but if the Plaintiff had took Issue
Fawden an Attorney of the Common Pleas and he pleads in Barr an Outlary against the Administrator and adjudged no Plea MIch 4. Ed. 4. rotulo 144. An Action of Debt was brought against J. R. de W. in Com. L. Chapman the Defendant appeared by his Attorney and offered to wage his Law and essoyned and at that Day the Plaintiff appeared and the Defendant being solemnly required one J. R. came to answer the Plaintiff as Defendant in that Action in his proper person and offered to wage his Law the Plaintiff said that J. R. now appearing to wage his Law ought not to be admitted because the said J. R. is not that person which the Plaintiff prosecutes because this I. R. appearing is I. R. de W. in Com. L. Jun. Chapman and he who the Plaintiff prosecutes is I. R. de W. in Com. L. Sen. Chapman both of them at the purchasing the Plaintiffs Writ living at W. and that he agreed with the Defendant so to do therefore because I. R. de c. hath not appeared to wage his Law prayes Judgement the Defendant confesses such matter and sayes that he beleiving that the Writ was prosecuted against him appeared by his Attorney and offered to wage his Law and prayes to be discharged of the Debt and the other I. R. being exacted appeared not and the Court would advise but no Judgement for the Plaintiff HIll 26. Eliz. rotulo 420. The Lessor makes a Lease by Indenture for years and the Lessee grants over his whole Terme and the Lessor grants over the Reversion and it was adjudged that the Grantee of the Reversion should have an Action of Debt for the Arrears of Rent against the Assignee of the terme and not against the first Lessee HIll 43. Eliz. Pasch 41. Eliz. rotulo 425. An Action of Debt brought against an Executor in the Debet detinet for Rent due in the time of the Executor upon a Lease made to the Testator upon a Judgement given in the upper Bench and that Judgement was reversed in the Exchequer because it was not in the Detinet alone but afterwards in the upper Bench. Int. dominum Rich. Frank Administrator for Arrears due after the Death of the Intestate it was adjudged good in the Debet detinet and also in the Common Pleas Trin. 11. Jac. rotulo 2013. MIch 30. 31. Eliz. rotulo 907. An Action of Debt brought to which the Defendant pleads an Outlary against the Plaintiff in its force the Plaintiff replies the general Pardon granted by Parliament the Defendant demurrs and Judgement that he should answer over MIch 40. 41. Eliz. Ralph Rogers brought an Action of Debt upon an Obligation of 400. l. and Judgement was entred by the Clerk upon a Nichil dic that the said Roger should recover c. and for that Default the Defendant brought his Writ of Error to reverse the Judgement given for Ralph and when the Record was certified the Judges of the then Kings Bench would not proceed And afterwards the Judges of the Common Pleas upon a motion and before another Writ of Error brought amended the Mistake of the Clerk And Justice Walmsley would have committed Keale the Clerk to the Fleet for his carelesness but afterwards the Amendment was withdrawn by the Court and upon further advice the Roll made as it was before An Action of Debt was brought upon a single Bill for Payment of Money upon Demand and the Plaintiff declares generally that he often had requested c. and Serjeant Harris demurres to the Declaration and the opinion of the Court was that he ought to plead yet if the Defendant had demanded Oyer of the Bill and upon that have demurred it had been a good Demurrer because one special Demand was in the Bill and no special Demand alleadged in the Count. MIch 3. Iac. Burnell versus Bowes Action of Debt brought upon a Bond and the Plaintiff in the Imparlance Roll had counted upon a Bond made the tenth of March and an Imparlance thereupon untill the next Terme and in the next Terme he declared as of a Bond made the tenth of May and the Defendant pleaded per Dures and it was entred of Record and the next Terme after Entry thereof the Plaintiff moved that that Mistake might be amended and at first it was denied to be amended because the Defendant had pleaded to it and by that Amendment his Plea should be altered as if he had pleaded that it was not his Deed and the cause of his pleading that Plea was the the Mistake and if that Mistake should be amended he would be trised and overthrown and upon the first motion it was denied to be amended but afterwards granted to be amended by the whole Court for the Imparlance was entred Hillar first of James and the Issue was Pasch second of James but the Defendant was admitted to plead a new at his pleasure MIch 3. Jac. rotulo 2575. Fitch versus Bissie An Action of Debt brought upon an Obligation with a Condition to pay Money yearly according to the forme and effect of the Indenture made between the Plaintiff and Defendant the Defendant pleads that there was not any such Indenture made between the Plaintiff and Defendant as is in the Condition supposed and the Plaintiff demurrs upon that Plea for that the Defendant is estopped to plead that Plea KIng and his Wife Executrix of J. Wright Plaintiffs brought a Scire facias after the said Executrix came to full Age against Death and his Wife Administratrix of W. D. to have Execution of a Judgement had by J. D. and H. E. Administrators during the minority of the Executrix upon a Bond entred into to the Testator and whether a Scire facias lay by the Executrix or no was the Question and by the better opinion of the Court it did not lie MAyor and Burgesses of Linn Regis in Norfolk Mich. 10. Jac. rotulo 2413. brought an Action of Debt upon a Bond against one Pain and it was Ad respondendum Majori Burgensibus de Linn Regis in Comitatu Norfolciae Pain pleads that it was not his Deed and a special Verdict was found that the Mayor and Burgesses were incorporated by the name of Majores Burgenses Burgi de Linn non per aliud And whether the omission of this word Burgi should barr the Plaintiffs was the Question and Judgement was given by Cook Warburton and Nichols for the Plaintiff for Cook said that if the essential part of the Corporation was named it was sufficient and in this case the Mayor and Burgesses was one essential part and Linn Regis is another essential part and those two were duly expressed and sufficient to maintain the Action and Cook said that those words Et non per aliud shall be intended to be Non per aliud sensum non literae and of the same opinion were the other Judges there NIchols versus Grimwin Mich.
arbitrated or else it is void and in every award there must be satisfaction of that which was awarded POwel versus Crowther trin 9. Jacob. rotulo 313. det port e un three executors which appeared at several terms and plead severally ne unques execut the plaintiff proceeds to triall against one of them and was non-suit And then one of the other defendants take the record down by proviso and the plaintiff was again non-suit and both the defendants desire costs before the third issue was tried but costs was onely given to the first and denied to the second for his trial was erroneous because by the first triall the originall was determined If a defendant wage his law no excuse of sickness or water can save his default but in real actions he may excuse himself by such accidents If the condition of a Bond be to discharge a messuage of all incumbrances there one may plead generally that he did discharge it of all incumbrances but if it be to discharge it of such a Lease there he must shew how NOrton versus Sims Pasch 11. Iacob rotulo 346. debt upon a Bond entred into by an under Sheriff to his high Sheriff that the under Sheriff shall not meddle with the execution of executions and shall discharge the Sheriff from all escapes and the plaintiff shewes a breach in the under Sheriff for an escape by reason whereof the Sheriff paid the debt and damages question was whether this covenant be good or not Judgment for the plaintiff A high Sheriff may make an under Sheriff to be at will An under Sheriff hath the same authority an high Sheriff hath it is a void condition to save a man harmless from all men but good if it be special if the condition be to discharge and acquit I must shew how An under Sheriff was before the Conquest A Bond made to the Sheriff by the under Sheriff to discharge of all escapes this is good and lawful If any part of the condition of a Bond be against a Statute-law it is void in all but otherwise if part be against the common-law See Boswels case 10. Rep. when a man is under Sheriff he may do all ministerial things the Sheriff may do but not judicial If the under Sheriff will covenant that he will not meddle with executions above 20. l. this covenant of his own accord is good if a Sheriff binde his under Sheriff that he shall not return Venire Facias nor intermeddle with executions untill he be acquainted it is against Law and naught by all the Court A Bond to perform divers Covenants some against Law and others lawfull it is good for lawfull things and void for the rest The Death of one of the Parties in an Original Writ doth abate the Writ it is otherwise in a Judgement If Husband and Wife sue a Scire facias and the Husband dieth the Scire facias shall abate for it is no more a judicial Writ but as it were an Original to revive a Judgement The Court were of opinion in the case of Sir H. Dowckray that where he had delivered Money to his Servant to provide Victuals and the Servant buyes the Victuals in his Masters name and payes not for them and afterwards an Action is brought against the Master for the Money and he offers to wage his Law and the Court held he could not safely wage his Law because the Victuals came to his own use and therefore he is chargeable and must have his Remedy against his Servant But if the Master did forbid the Tradesman to deliver any Wares except his Man paid for them in that case if the Tradesman deliver Wares the Master may safely wage his Law as it was adjudged in Sir H. Comptons case MAntell versus Gibbs Trin. 7. Jacobi rotulo 1254. An Action of Debt brought upon an Obligation to which the Defendant pleads that an Estranger was imprisoned by another stranger and kept in Prison untill the Defendant as Surety of the stranger made the Bond and it was held a naughty Plea and a Repleader awarded ALston versus Walker Mich. 6. Jacobi rotulo 1342. Land was Mortgaged and a Promise that if the Mortgager at such a time and place should pay the Money to the Mortgagee his Heirs or Assignes that then the Mortgage should be void the Mortgagee died and the Money was paid to his Executors and it was adjudged to be no performance of the Condition for the Executor was not named and the Money ought to be paid to the Heir who should have the Land if the Money were unpaid and not the Executor STurges versus Dean Trin. 7. Jacobi rotulo 2915. An Action of Debt brought upon a Bill for Money to be paid within fifteen Dayes after his Return from Ierusalem he proving his being there the Defendant pleads that he did not prove-his being there to which the Plaintiff demurrs he making proof that is if it be true Sir Edward Cook and Daniel held that the proof should be made upon the Triall and the proof should be subsequent But Warburton and Foster held that the proof shall be precedent because it was restrained to a certain time but it had been otherwise if no time had been appointed NOrton versus Goldsmith Trin. 7. Iac. rotulo 3100. An Action of Debt brought upon an Obligation with a Condition that Chamberlain his Under-sheriff should not meddle with Executions beyond such a summ and alleadges a Breach for intermeddling with Executions contrary to the Condition and the opinion of the whole Court was that the Bond was void PAin versus Nichols Trin. 8. Iac. rotulo 134. An Action of Debt brought upon the Statute of Ed. 6. for not setting forth of Tithes and the Plaiutiff declared as well for Prediall Tithes for he might well bring his Action and for other Tithes as of Lamb and Wooll for which no Action would lie and upon a Triall the Jury found for all as well for those that would as would not bear an Action and after a Verdict this Exception was taken and Judgement arrested BOoth versus Davenant Trin. 8. Iacobi rotulo 805. A Bail taken in the then Kings Bench and an Action of Debt brought upon that Recognisance which was that if it happened the Defendant in that Action to be convicted then the Manucaptors granted and every of them granted that as well the Debt as Damages and Costs which should in that Action be adjudged the Plaintiff should be levied upon their Lands and Chattels And in Easter Terme 7 Iacobi the Defendant upon a Capias ad satisfaciendum awarded against him did not render his Body but afterwards Mich. 7. Jacobi he did render his Body and the Court accepted of it and discharged the Bail and whether the Bail should be discharged or not was the Question and the Court held the Bail should be discharged and Judgement was given for the Defendant RAyson versus Winder Pasch
of the Statute are to have and injoy and Winch said it was within the Statute and so the Office of a Cursitor was within that Statute Exception was taken to an Action of Debt brought upon the Statute of E. 6. for not setting out of Tithes because the certainty of Loads of Corn were not expressed but it was held good notwithstanding HAwes versus Birch Hill 12. Jacobi rotulo 1843. An Action of Debt brought upon a Bond of 6. l. for the payment of 3. l. upon the 16. of April The Defendant pleads that an Estranger at the Defendants request the said 16. of April made an Obligation to the Plaintiff in lieu of the first Debt and adjudged naught by the whole Court for one thing in Action cannot be a satisfaction for another thing in Action but this being done by a stranger is good by no means Pasch 12. Jacobi The Court was of opinion that if Money be tendred and none ready to receive it and afterwards he to whom the Money is payable demands the Money and the other refuse to pay and afterwards an Action is brought and a Tender pleaded the Court held that the Defendant should pay Damages from the time that the Money was demanded FLeet versus Harrison Hill 13. Jac. rotulo 841. An Action of Debt brought against two Defendants one of them pleads Nil debet per patriam and the other lets a Judgement go by Default and he that waged his Law at the Day appointed performed it and Judgement that the Plaintiff should take nothing by his Writ for a Respectuatur of the Judgement was entred untill the other had done his Law WIlliamson versus Spark Mich. 13. Jac. rotulo 3511. Upon a cire facias brought against the Bail upon an Attachment of Priviledge The Defendant pleads a Release made after the Verdict and before Judgement which was before the Recognisance was forfeited and if the Recognisee may release before the Damages are ascertained or no was the Question and it seemed he might An Action of Debt brought against a Baker for a Fine imposed on him in a Court Leet and an Exception was taken because it was not alleadged that he sold Bread against the Assise of Bread made to sell for a man may make and bake Bread for his own use under the Assise limited BAcon versus Pain Trin. 14. Jac. An Action of Debt brought and declare that such a Day and Year the Defendant was a Brewer and for one Year then next following and that the Defendant the said Day at K. bought of the Plaintiff the fourth part of the Grains that the Plaintiff that Year next following should make in brewing for 3. l. to be paid upon Request The Defendant pleads that he ought him nothing and after a Triall an Exception was taken to the Declaration because the Plaintiff did not aver that he made Grains in that Year LOrd versus Huxly An Action of Debt brought on a Judgement thereupon and the Defendant taken in Execution upon that Judgement and afterwards the Plaintiff became Felo dese by which the Almoner seised of all his Goods and afterwards the Almoner would have acknowledged satisfaction of the Debt and Damages in that Judgement and doubted that he could not SAwyer versus Crompton Hill 14. Jac. rotulo The Plaintiff brought an Action of Debt for Costs given before the Judges of the Marshalsey newly erected 9 Jac. by Letters Patents of the same King within the Virge And the Plaintiff declared that whereas at the Court of the said King for the Houshold held at S. in S. within the Virge of the Houshold then at Whitehall such a Day and Year before T. B. Knight Marshall c. and F. B. c. Judges of the said Court to hear and determine all Pleas personal within the Virge between Persons not being of the Houshold arising by vertue of Letters Patents bearing Date such a Day and Year in due manner made came c. and the Court held a repugnancy in the Count and the whole Court against the Plaintiff If it had been brought upon the ancient Court it must be between two of the Houshold and they held that cost lay and the Exception was because the Plaintiff had not shewed the Grant to hold the Court. If a Bond be made to one and he doth not say in the Bond that it shall be paid to the Obligee in this case the Plaintiff must shew that it is to be paid to him though not expressed in the Bond. HOnne Executor of R. Hutton and E. May Pasch 40. Eliz. rotulo 433. An Action of Debt brought upon an Obligation with a Condition that the above bound T. G. or his Heirs do or shall at any time before the Purification of the blessed Virgin which shall be in the year 1596. according to the Custome of the Mannour c. Surrender into the hands of the Lord of the same Mannour for the time being all those c. to the use of the said R. Hutton his Heirs and Assignes for ever in such wise as the said R. Hutton his Heirs and Assignes shall or lawfully may by the custome of the Mannour be admitted c. or if after such Admittance the Premises shall be recovered against the said Rich. his Heirs or Assignes by one W. K. within four years then if he shall pay upon notice c. The Defendant pleads that the Plaintiff ought not to have his Action because the said R. Hutton after the making of the Bond and before the said Feast of the Purification which was in the year 1696. to wit the sixth of October 38 Eliz. at B. died The Plaintiff demurs and Judgement for the Plaintiff If one be indebted to one and he dieth intestate and after his Death Administration is committed to the Debtor this is no Release of the Debt If he marry the Executrix of the Debtee and the Executrix dieth the Husband shall be charged with the Debt after her Death VAughan versus Chambers Trin. 20. Eliz. rotulo 145. An Action of Debt brought upon a Bond the Defendant pleads the Statute of Usury and shews a corrupt Agreement for Money lent in the year 32. to be paid in 33. and afterwards in 35. a new Bond given for part of the first summ and it was pretended that this Bond was void but it was adjudged because the first Bond was no Corruption the later should not be LEech Attorney versus Phillips Executor of Phillips rotulo 3415. An Action of Debt brought for soliciting a Cause in the upper Bench and it was adjudged by the whole Court that an Action of Debt for Solicitors Fees would not lie but ought to bring an Action of the Case and afterwards the Court held an Action of the Case would not lie PAsch 12. Jac. Grove versus Jourdain An Action of Debt brought against an Administrator who pleads that the intestate was indebted to him
Indenture the Covenant was for quiet injoying without let trouble interruption c. The Plaintiff assigned his Breach that he forbad his Tenant to pay his Rent this was held by the Court to be no Breach unlesse there were some other Act and the Defendant pleaded that after the time the Plaintiff said that he forbad the Tenant to pay the Rent the Tenant did pay the Rent to the Plaintiff LEvel versus Hall Pasch 9. Jac. rotulo 805. An Action of Debt brought upon an Obligation to which the Defendant pleads that the Plaintiff brought another Action upon the same Bond in London to which the Defendant there had pleaded Non est factum and it was there found that it was not the Defendants Deed and in London the Entry is upon such a Verdict that the Defendant shall recover Damages against the Plaintiff and that the Defendant should be without day c. but no Judgement that the Plaintiffe should take nothing by his Writ and therefore no Judgement to be barred in another Suit but barr the Plaintiffe for it is onely a triall and no Judgement and the Plea was adjudged naught by the whole Court MIch 15. Jac. Rotulo 2215. One made another his Executor and that Executor died and made another his Executor and the last Executor refused to own his first Will as to his goods and this matter was pleaded in his Action of Debt brought by an Administrator of the Goods of the first Executor pretending the Administration was void although the Executor refused to be Executor as to the Goods and the Court held the Administration void for the Executor cannot be Executor for part at his own Election and not for part and the Defendant pleaded that the Executor should not bring his Action as Administrator but as Executor WHerwood versus Shaw Mich. 44. and 45 Eliz. Shaw Executor of A. brought an Action of Debt against Wherwood Administrator of Feild upon a Bill made by Field to A. by which Feild doth acknowledge himself to have received of one P. forty l. to be equally divided between the said A. and B. to their use and upon a Judgement given in the Common Pleas Wherwood brings a Writ of Error and the Judgement was affirmed the matters moved were i. because the forty pounds was given to be equally divided between A and B. therefore they were Tenants in common of it and Shaw should have joyned B. in the Action with himself as Tenants in common are to joyn in personall action but over-ruled that in this case there were severall Debts to wit twenty pound to one and twenty pounds to the other as in case of ten pounds rent reserved upon a Lease to wit five pounds at the Feast of Michaelmas and five pounds at the Feast of the Annunciation yet it is but one Rent and this case is not to be resembled to the Cases of Interest as in the 20 Eliz. where Land or Lease be giuen to two equally to be divided for there they are Tenants in common The second thing moved was whether Debt or account did ly and adjudged that although no contract was between the parties yet when either money or goods are delivered upon consideration to the use of A. A. may have an Action of Debt and of that opinion was Mountain 28 H. 8. in Core and Woods Case and also there is a President of such Actions of Debt in the Book of Entries BRoad versus Owen Mich. 44 and 45 Eliz. The Plaintiffe brought an Action of Debt upon the Statute of 5 Eliz for Perjury against the Defendant the case was thus one Low was Plaintiffe against Brode in the high Court of Chancery and upon Bill and Answer such matter appeared to the Lord Keeper that he ordered that one Labourer should become party to the Bill against Brode and afterwards one Commission issued out of Chancery between Labourer and Brode to examine Witnesses by which Commission Owen the now Defendant was examined on the behalf of Labourer and did depose directly for Labourer against Brode by reason whereof one Order and Decree was made in the Chancery against Brode and for that cause Brode brought his Action of Debt against Owen upon the Statute of Perjury 5 Eliz. for one party grieved by the Oath and Deposition of another and Owen demurrs in Law and by the opinion of Gaudy and Yelverton Justices the Action would not lie for the words of the Statute are where a man is grieved and damnified by a Deposition in one Suit between party and party and in this Case it appeared that Labourer was no party to the Suit but came in by an Order and no Bill depending either against him or brought by him and so out of the Statute for it is penall and to be taken strictly and quaere if he in the Reversion joyn in aid and is grieved and prejudiced by an Oath and Deposition may maintain an Action of Debt upon this Statute for he may undoubtedly by the Common Law have an Attaint GReen versus Gascoin Pasch 1. Jacobi An Action of Debt brought upon an Obligation for an hundred pounds to which the Defendant pleads in Barr to the Action an Outlary against the Plaintiff and shews it incertain the Plaintiff replies Nul tiel record and the Defendant had Day till the next Term to bring in the Record and in the mean time the Plaintiff reverses the Outlary by which it is become in Law no Record according to the 4 H. 7. 12. And Yelverton moved the Court for the Defendant that although in Law there was a Failer of the Record yet the Defendant ought not to be condemned but shall answer over according to the 6. of Eliz. Dier fol. 228. where it is adjudged that Failer of the Record is not peremptory and so adjudged for it was no Default in the Defendant his Plea being true at such time as it was pleaded with mark WEaver versus Clifford Action of Debt brought for an Escape the Case was thus upon the Nichils returned against a Conusor in Chancery a Capias was awarded out of the Chancery against him by vertue of which he was taken by the Sheriff and suffered to escape and adjudged that no Action would lie against the Sheriff in this Case for a Capias lies not upon a Recognisance but onely a Scire facias and therefore when a man is taken upon the Capias he is not a Prisoner by the course of Law for the Law hath not ordained any means to arrest him and is therefore in Custody without Warrant and no Escape and it is an illegal Commitment and so is the âratuâe of Westminster the 2. to bâ constâued which gâ⦠Action against the the Gaolor to wit where the party is in Execution by course of Law and although the Chancery doth award a Capias upon a Recognisance and that there are divers Preââlents of it et it is bât the use of that
that if it had been by Writ he must have shewed it but need not it being by Plaint if the truth appear in that and if a man bring his Action as Assignee he need not shew it in his Plaint if the truth appear in the Declaration but it is otherwise in an Original and a Plaintiffe in Kings Bench as an originall but not in all things and if the Plaint be incertain the Defendant in that Court shall plead in Abatement of the Plaint as to an Original in the Common Pleas and at last two Presidents were shewen one between Champion and Hill and the other between Merrick and Wright that were allowed without naming of the Plaintiff Rector in the Queritur and Judgement was given for the Plaintiff by the whole Court Note it was agreed by all the Court of Kings Bench Mich. 5. Jac. and hath many times been ruled that if a man sell his Tithes for years by word it is good but if the Parson agree that one shall have his Tithes for seven years by word it is not good by the opinion of Fleming Cheif Justice because it amounts to a Lease and he held strongly that Tithes cannot be leased for years without a Deed. COb versus Hunt Hill 5. Jac. Cob sued a Prohibition in the Common Pleas against Hunt Parson of D. in Kent and suggests a Modus demandi as to part of the Tithes demanded against him in the Spiritual Court and as to the residue suggests a Contract executed and performed between him and the Parson in satisfaction of the residue and because he proved not his Suggestion within six Moneths Hunt the Parson had a Consultation and Costs assessed by the Court to fifty shillings and Damages fifty shillings by the Statute of the 2 E. 6. they shall be doubled but in truth no Judgement was given to recover them because these words Videlicet Ideo considerat fuit qd recuperet was omitted yet Hunt thinking that all was certain and perfect brought an Action of Debt in the Common Pleas for the Costs c. and declared of all the matter above and that the Damages were assessed upon which it was adjudged that he should recover c. and that the Costs were not paid Per quod Actio c. And had a Judgement against Cob by Non sum informat and thereupon Cob brought his Writ of Error as well in the Record and Processe c. of the Prohibition as of the Record and Processe in the Action of Debt for the Costs and assigne the general Error but Yelverton assignes two Errors in special first that there was no Judgement in the Prohibition for Recovery of the Costs but onely an Assessement of Costs without any more which is not sufficient for the Assessement of Costs onely is but matter of Office in Court but no Judgement of Court to binde which was confessed by the whole Court The second Error was that no Costs ought to be assessed or adjudged in the Cause above because the Prohibition is grounded solely upon the Modus decimandi which needs proof and upon the Contract between the parties which requires no proof and the Suggestion being intire and part of it needing no proof they could not give any Costs for that is onely where the whole matter in the Suggestion needs proof and therefore the mixing the Contract with the manner of Tithing priviledges the whole as to the matter of Costs but they might grant a Consultation as to that part of the Suggestion which concerned the manner of Tithing but not for the rest which was granted by the whole Court and so both the Judgements were reversed which mark MArkham versus Mollineux Hill 1. Jac. Mollineux sued out an Original in the Common Pleas in an Action of Debt upon a Bond against Markham by the name of John Markham Alderman de D. and all the mean Processe are continued against him by the name of Alderman Markham he appeared and the Plaintiff declared against him by the name of Markham of D. Esquire and afterwards the parties were at Issue and it was found for the Plaintiff and Judgement entred and it was reversed by Writ of Error because it did not appear that that Markham was the same Markham against whom the Original was prosecuted and the Processe continued but it seemed rather that he was another person by reason of his severall Additions of Alderman and Esquire which mark OLiver versus Collins Pasch 6. Jacobi The Plaintiff brought an Action of Debt upon the Statute for not setting forth of Tithes and shews that he is Parson of the Parish Church of Little Lavar in Com. Essex and that the Defendant had so many Acres within the Parish of Little Lavor sowed with Wheat whereof the tenth severed from the ninth part came to eight and twenty pounds and shews that the Defendant at Little Lavor aforesaid took and carried away the Wheat without setting forth the Tithes contrary to the Statute by reason whereof he forfeited threescore Pounds and upon Nil debet pleaded it was found for the Plaintiff and moved in Arrest of Judgement first that the Statute was mis-recited for whereas the the Plaintiff declared that the 4. Novemb. 2 E. 6. it was inacted it was said that there was no such Statute for the Parliament commenced 1 E. 6. and continued by prorogation untill the 4. Novemb. 2 E. 6. and therefore the Plaintiff was mistaken in that but that Exception was not allowed for there were an hundred Presidents against it and in respect of the continual use in that form as the Plaintiff had declared the Court said that they would not alter it for that was to disturb all the Judgements that were ever given in that Court. And secondly it was objected that the matter was mis-tried and there ought to be a new Triall because the Venire facias was of Parva Lavar whereas by their pretence it ought to have been of the Parish of Little Lavar to which Yelverton made Answer that the Triall was well enough for by that Action no Tithe is demanded nor recovered but the Defendant is onely punished for his Contempt against the Statute in not setting forth his Tithe and the wrong done to the Plaintiff complained of is laid onely in the Village of Little Lavor and not in the Parish for all the places in the Declaration where the Parish is named are onely matter of Conveyance and inducement to the Action and not of the substance for the substance is onely that where the wrong and grievance is done to the Plaintiff and that arises onely in Parua Lavor which was granted by the whole Court upon a grand Debate at severall Dayes and Judgement was given for the Plaintiff and the like Judgement was given between Barnard and Costerdam in an Action upon the same Statute upon the last point for the Venn and this hath been twice adjudged but in Costerdams Case which concerned the Earl
of Clanrickard with whom Yelverton was of Councel it was resolved that if the Issue be upon the custome of Tithing and that it be found against the Defendant he shall pay the value expressed by the Plaintiff in his Declaration for because by the collateral matter pleaded in Barr the Declaration is in whole confessed SMith versus Smith Trin. 6 Jacobi one Bisse made K. his Wife and John his Sonne being one year old Executors and K. solely proved the Will and afterwards married the Plaintiff and they two brought an Action of Debt as Executors against the Defendant and the Defendant pleads in abatement of the Bill that John was made Executor with K. and is yet in life and not named the Plaintiffes reply that John was but of the age of one year and that K. proved the Will and had Administration committed to her during the minority and that John is and was at the time of the Writ purchased within the age of seventeen years and upon that Yelverton demurred and adjudged for the Defendant that the Bill should abate for both of them in truth were Executors and ought to be named in the Action and although by the Administration granted during the minority K. had the full power yet the Infant ought to be named he being Executor GOmersall versus Ask Trin. 6. Iacobi The Defendant brought an Action of Debt against the Defendant as Administrator of her Husband upon two former Judgements given in two Actions of Debt against the intestate and shews the recoveries the Defendant pleads that the intestate entred into a recognisance 35 El. in Chancery to Sir Henry Bechel and shows that after the Judgements had by the Plaintiff Sir H. obtained a Judgement against the intestate upon the Recognisance and that she hath not assets to satisfie the Plaintiff of the intestates Goods beyond Goods that are chargeable and liable to the Judgement upon the Recognisance to which Plea the Plaintiff demurres and by Fennor and Williams justifies the Plea in Barr was good for although the Plaintiffes Judgements mentioned in his Actions are before Sir H. Judgement yet because the Plaintiff by his Action doth not demand Execution of the Judgements but onely his Debt recovered for this Action brought it as an originall and in the same Court as if he did demand the Debt upon the first Obligation and therefore because the Plaintiff had not sued out a Scire facias to execute the first Judgements but had prosecuted a new originall the Plea is good and allowable as it had been upon the said Obligation but Yeluerton and Fleming were of a contrary opinion for the Plea had not been good against the intestate himself and the Executor or Administrator represents his person and therefore the Plea is not good but onely in excuse of a Devastavit and they were of opinion that the Action brought by the Plaintiff was in nature of a Scire facias for he demanded the Debt in another course then it was at first for that Debt which was but matter of escript is now become by the Judgement to be Debt upon Record and of so high a nature that the Judgement being in Force he can never have an Action upon the Obligation which is adjuged in Higgins Case Co. 6 Rep. but Cook doubted and the Plaintiff dying the Court did not resolve APleton versus Baily Mich. 6. Jacobi Apleton as Executor of Apleton brought an Action of Debt against Baily for the Arrerages of diverse Rents as well Copy-hold Rents as Free-hold Rents pertaining to a Mannor whereof the Testator was seised and thereof died seised and the Rents were not paid to him in his life time by reason whereof they belonged to the Plaintiff as Executor And the Defendant though he was requested had not paid against the form of the Statute of the 32 H. 8. And the Court that the Action did not ly for the Arrerages of Copy-hold Land for the Statute of the 32 H. 8. doth not extend to them but only to Rents out of Free Land Secondly It lies not for the Rent of free Land because the Plaintiff hath not shewed in his Declaration that the Defendant had attorned to the Testator in his life And although in pleading it is good to alledge a Feoffment of a Mannor without pleading any Livery or of any Attornment of Tenements but when the Rent of any Free-hold Land comes in Debate it behoves both the Owner of the Mannor and and his Executor that demands it to convey the privity between the Tenant and the Lord which ought to be by attornment for Rents and Services rest not without Attornment which mark PEirson versus Ponuteis Mich. 6. Jacobi The Plaintiff as Executor of Peirson brought an Action of Debt against Jo. Ponuties of London Merchant that he should render to him three and thirty pounds twelve shillings in that the Defendant 5. Oct. 1598. at London c. By his Bill obligatory hath acknowledged himself to owe to the Testator 1518. Florens Polish which then amounted to thirty three pounds twelve shillings to be paid to the Testator Ad solucionem festi purificat c. Called Candlemas day next insuing and to that payment had obliged himself by the same Bill And the Plaintiff avers that Predicti soluciones dicti festi purificat c. Next after the making the Bill were according to the use of Merchants the twentieth of February 1598. Yet the Defendant had not paid the 1518. Florence Polish or the thirty three pounds twelve s. to the Testator nor to the Plaintiff The Defendant pleads Non est factum and found against him and moved in arrest of Judgment that the Declaration was not good because first the payment of Candlemas is not known in our Law but that was not allowed for that which is unknown in ordinary intendment is made manifest and helped by the Averment in the declaration because that payment among Merchants is known to be upon the twentieth of February and the Judges ought to take notice of those things that are used amongst Merchants for the maintenance of traffick and the rather because the Defendant doth not deny it but pleads non factum by which he confesses the Declaration to be true in that averment Secondly it was objected that as the Case is the use of Merchants is not materiall because the Testator by any thing that appears was not a Merchant but it was not allowed because the defendant that bound himself to pay was a Merchant and the Testator ought to take the Bill as the defendant would make it and he chose to make the payment according to the use of Merchants and not according to the Ordinary intercourse between party and party which mark this by the whole Court TAlbot versus Godbold Mich. 6. Jac. Godbold 28 Eliz. sealed a Bill to the Plaintiff made in this manner memorandum that I have received of Edw. Talbot who was the Plaintiffes Testator to the
to the breach if it had been assigned yet the Court ought to be satisfied that the Plaintiffe had good cause of Action to recover otherwise they should not give Judgement and although a Verdict is given for the Plaintiff yet this imperfection in the Replication is matter of substance and is not helped by the Statute by the opinion of the whole Court except Justice Williams BArwick versus Foster Mich. 7 Jacobi Action of Debt brought for Rent the cause was thus the Plaintiff leased certain Lands to the Defendant at Mich. 1 Jacobi for five years yielding and paying Rent at our Lady Day and Mich. yearly or within ten dayes after and for rent behind at the last Mich. the Plaintiff declares as for Rent due at the Feast of Saint Michael and prima facie it seemed to the whole Court but Crook that the Action would not ly but that the Rent for the last quarter was gone for it was not due at Michaelmas as the Plaintiff had declared for his own shewing it is payable and reserved at Michaelmas or within ten dayes after although the Lessee might pay it at Michaelmas Day yet it is not any Debt which lies in demand by any Action untill the ten dayes be passed and the reservation being the Lessors Act it shall be taken most strongly against himself and although the end of the Term is at Michaelmas before the ten dayes untill which time the Rent is not due and because at that time the Term is ended the Lessor shall loose his Rent as if a Lessor die before Michaelmas Day the Executor shall not have the Rent but the Heir by discent as incident to the Reversion and if the Lessee should pay the Rent to the Lessor at Michaelmas day and the Lessor should dye before the tenth Day his Heir being a Ward to the King the King shall have it again for of Right it ought not to be paid untill the tenth day according to the 44 E. 3. but this Case being moved again in Hillary Term Fleming Fennor and Yelverton changed their opinion and held that the Lessor should have the Rent for it was reserved yearly and the ten dayes shall be expounded to give liberty to the Lessee within the Term for his ease to protract the payment but because the ten dayes after the last Michaelmas are out of the Term rather then the Lessor shall loose his Rent yearly the Law rejects the last ten dayes MOlineux versus Molineux Hill 7 Jacobi An Action of Debt brought against Mo. upon an Obligation as Heir to his father the Defendant pleads that he hath nothing by discent but twenty Acres in D. in such a County the Plaintiff replies that the Defendant had more Land by discent in S. to wit so many Acres and upon this they are at Issue and found for the Defendant that he had nothing by discent in S. by reason of which the Plaintiff could recover and had his Judgement to have Execution of the twenty Acres in D. upon which Judgement in the Common Pleas the Defendant brought his Writ of Error and assigned for Error a discontinuance in the Record of the Plea from Easter Term to Michaelmas Term after and whether this were helped by the Statute of 18 Eliz. because it was after a Verdict was the question and adjudged to be out of the Statute and that it was Error for the Judgement was not grounded upon the Verdict but onely upon the confession of the Defendant of Assetts and the Verdict was nothing to the purpose but to make the Defendants confession more strong and therefore the Statute of the 18 of Eliz. is to be intended when the triall by Verdict is the means and cause of the Judgement which mark and therefore the Judgement was reversed the Law seems to be the same if the Plainiiff brings an Action of Debt for forty pounds and declares for twenty pounds upon a Bill and twenty pounds upon a non tenet and the Defendant confesses the Action as to the money borrowed and they are at issue as to the money demanded by the Bill which Passes also for the Plaintif by reason wherof he hath Judgement to recover the forty pounds demanded and the Damages assessed by the Jurors and Costs intire in which Case if there be a discontinuance upon the Roll it seems that all shall be reversed notwithstanding the verdict for the verdict is not the onely cause of the Judgement but the Confession also and the Costs assessed intirely for both but yet inquire of this It was adjudged by the whole Court that in those Cases where an Executor is Plaintiff touching things concerning the Testament and is non-suited or the verdict passes against him that he shall not pay Costs upon the new Statute of 4 Jac. for the Statute ought to have a reasonable intendment and it cannot be presumed to be any fault in the Executor who complains because he cannot have perfect notice of what his Testator did and so it was resolved also by all the Judges of the Common Pleas. GOodier versus Jounce Trin. 8 Jacobi Jounce recovered in the common Pleas a hundred and thirty pounds against Goodier in Crastino Animar 6 Jacobi and the eight and twentieth of November the same Term being the last Day of the Term the Plaintiff proved an Elegit against Goodier to the Sheriffs of London where the Action was laid and to the County Palatine of Lancaster returnable Crastino Purificationis after which was granted by the Court and by the Elegit to the County Palatine it appeared that it was grounded upon a Testat returned by the Sheriffs of London that Goodier had nothing in London where in truth they never made such a Return and upon that Elegit by a Jury impannelled before the Sheriff of Lancaster a Lease of Tithes was extended for fifty nine years then to come at the value of a hundred pounds which the Sheriff delivered to J. the Plaintiff as a Chattell of Goodiers for a hundred pounds and returned it and that Goodier had no more Goods c. and thereupon Goodier brought a Writ of Error in the upper Bench and assigned for Error that no Return was made by the Shetiffs of London nor filed in the common Pleas as was supposed in the Elegit and it was adjudged Error for although the Plaintiff might have an Elegit as he desired in the common Pleas immediately both into London and Lancashire but seeing he waived the benefit thereof and grounded his Execution upon a Testatum which was false it was Error in the Execution for as it appears 18 H. 6. 27. and 2 H. 6. 9. that a Testatum is grounded upon a former Return filed that the party had nothing in the County where the Action was brought and because it appeared upon Record that the prayer of the Elegits was made the eight and twentieth of November the last day of the Term and by the Testatum it is supposed
that the Sheriffes of London had returned quindena Martini which is before the eight and twentieth of November that the Defendant had nothing in London which seemed to be contrary to the Record yet that is not materiall but makes the matter more vitious for it may well be that since the Judgement was Crastino animarum a Testatum might not issue out returnable Quindena Martini and it shall be the Plaintiffes fault that he did not file it and it shall be presumed to be such a Writ as the Plaintiffs own Processe doth recite and note that the whole Court did adjudge in this Case that Goodier should be restored to the Term again and although it was valued by the Jury but at a hundred pounds and delivered to Jounce the Plaintiff to hold as his own Goods and Chattells yet Goodier shall have it again from Jounce for he being the party himself it is in Law but a bare delivery in specie and therefore ought to be restored in specie again and doth not absolutely alter the property but attends upon the Execution to be good or naught as the Execution is and so it was adjudged before in Robothams Case and also in Worrells Case as Mr. Noy said to Yelverton but it had been otherwise if the sute had been to an estranger by the Sheriff of the Term for a hundred pounds according to the opinion of 28 Eliz. Dy. for it is the parties folly that he doth not pay the Judgement and if such sales should be made void none would buy Goods of the Sheriff by reason whereof many Ex ecutions would remain undone and this by the opinion of the whole Court SMith versus Newsam and his Wife Mich. 6 Jacobi The Plaintiff as Son and Heire of Geo. S. his father brought an Action of Debt against the Defendant for twenty Marks and declares that his father April the twenty seventh 25 Eliz. leased to the Defendant one house c. in B. in the County of Bedford from Michaelmas next following for one and twenty years yielding and paying during the Term if the Father should so long live thirty pounds at our Lady day and Michaelmas by equall portions and yeelding and paying to the Heires and Assignes of the Father after his death twenty Marks at the Termes aforesaid by vertue whereof the Defendant entred and occupied from Michaelmas 35 Eliz. c. the Father dyed the fourth of May 7 Jur. at B. and because twenty Marks for a half years Rent were behinde the Action was brought the Defendant demurred to the Declaration and adjudged against the Plaintiff for the clause by which the Court is reserved to the Heirs gives but twenty Marks for the whole year and not twenty Marks every a year and therefore the Plaintiff had mistaken his demand in suing for twenty Marks for one half year for these words ad Terminos praedictos are onely the time of payment of the twenty Marks which were to be paid as the thirty pounds were and although in the clause that reserved the Rent to the Heirs the words by equall portions were omitted yet the Law will supply them as it is in the 13 H. 9. Avowry 2. 40. Rent granted to be taken at two Termes of the year and they named it shall be intended by equall portions although the Deed makes mention of that for the reservation being the Act of the Lessor shall be taken most strongly against him and his Heirs and therefore shall have but twenty Marks for all the whole year and no more as in Perkins 22 two tenements in common make a Lease rendring ten shillings it shall be five shillings to each of them March 171. according to it the second cause of the Judgement was because the Plaintiff brought this Action as Heire to his Father and doth not shew in his Declaration that the Reversion descends to him and the Rent demanded is incident to the Reversion discended and so the Plaintiff doth not make any Title to have the Rent which mark and Judgement was given that the Plaintiff should take nothing by his Bill NEale versus Sheffeild Trin. 8. Jacobi rotulo 782. The Plaintiff brought an Action of Debt upon an obligation for fourteen pounds the condition was that if the Defendant should pay seven pounds to the Plaintiff upon the birth-day of the Child of John living which God shall send after the Date of the Bond then c. The Defendant pleads that the Plaintiff after the making of the Obligation and before the birth of any Infant of the said J. living to wit the 1. September 7. Jacobi was indebted to the Defendant in one load of Lime to be delivered upon request and the same day it was agreed between them at L. that if the Defendant would discharge the Plaintiff of the said load of Lime that then in consideration thereof the Plaintiff would discharge the Defendant of the said Obligation and would accept the said load of Lime which the Plaintiff accepted in discharge of the Obligation and did then acquit the Defendant of the said Obligation and demands Judgement to which Plea the Plaintiff demurres and adjudged for the Plaintiff for two causes first because the Defendant had pleaded his Barr in discharge of the Obligation whereas he should have pleaded it in discharge of the same contained in the Condition of the Obligation for it is not a Debt simply by the Obligation but the performance or breach of the Condition makes it to be a Debt for the Obligation is proved by the Condition so that if the Condition be not discharged the Obligation remains in his force and the matter in the Barr is not pleaded in discharge of the Condition but of the Obligation and therefore it is not good which mark Secondly it appears that the Condition it self cannot be discharged for the seven pounds is not due nor payable untill the Birth of the Childe of John living which is a meer Contingency and remote possibility whether he shall ever have a Childe or no and therefore it resting in Contingency whether it will ever be a Debt or no it cannot be discharged for a possibility cannot be released as it hath been adjudged in Carters Case and it is not to be resembled to the Case where the Condition is to pay Money at a Day to come for that may be discharged presently for it is presently a Duty although it be not demandable untill the Day and therefore because it cannot be known whether the Day will ever come wherein John will have a Childe and because it is no Debt nor Duty therefore it cannot be discharged by the opinion of the whole Court DOdson versus Keyes Mich. 8. Jacobi The Plaintiff brought an Action of Debt upon an Obligation for ten pounds and declares that the Defendant 23. Octob. 1608. at M. became bound to the Plaintiff in ten pounds to be paid upon request the Defendant demands Oyer of the Obligation which
Carr. The Tenant in Dower before the value inquired of and Damages found brought a Writ of Error and by the opinion of the whole Court a Writ of Error would not lie for the Judgement is not perfect untill the value be inquired upon The Demand in Dower was of the third part of two Messuages in three parts to be divided and the Judgement was to recover Seisin of the third part of the Tenements aforesaid with the Appurtenances to hold to him in severally by Meets and Bounds and adjudged naught because they are Tenants in common and the Judgement ought to be to hold to him together and in common but if it had been in three parts divided it had been good Actions in Ejectment ALlen versus Nash Hill 5. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and a special Verdict upon a Surrender of Copy-hold Land which was to the use of the second Son for Life after the Death of the Tenant and his Heirs and it was adjudged not to be good in a Surrender for though it be good in a Will yet Implication is not good in a Surrender and in Copy-hold Cases a Surrender to the use c. this no use but an Explanation how the Land shall go if the Lord grant the Land in other manner then I appoint it is void if there be found Joynt-tenants and one Surrender to the use of his Will it was a Breach of the Joinder and the Will good EYer versus Bannaster Trîn 16. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and declared upon a Lease made by Ed. Kynaston to which the Defendant pleads not guilty and the Plaintiff alleadges a Challenge that the Wife of the Sheriff is Cosin to the Plaintiff and desires a Venire facias to the Coroners and the Defendant denied it and so a Venire was made to the Sheriff and at the Assises the Defendant challenges the Array because the Pannell was arrayed by the Sheriff who married the Daughter of the Wife of the Lessor and note the first Challenge was made after the Issue joyned and at the Assises the Defendant challenged as above and a demurrer to it and Hutton held that a Challenge could not be after a challenge except it were for some cause that did arise after the challenge made and that the party ought to rely upon one cause of challenge though he had many causes observe the Defendant could not challenge the Array untill the Assises but Husband held that a Challenge might be upon a Challenge but this challenge was adjudged naught by all the Judges HIll versus Scale Trin. 16 Jacobi rotulo 5. 18. the Plaintiff brought an Ejectione firmae and declares upon a Demise made to the Plaintiff by J. C. bearing date the first of January anno 15. and sealed and delivered the twelfth of January following to hold from Christmasse then last past for two years the Jury found a speciall Verdict and found the Lease and a Letter of Atturney to execute the Lease in this manner that the Lessor was seised of the Land in Fee and being so seised he made signed and sealed an Indenture of a Demise of the said Tenements and found it in haec verba this Indenture c. and they further found that the Lessor the said fifth day of January did not deliver the said Indenture of Demise to the Plaintiff as his Deed but that the Lessor the said fifth day of January by his writing bearing Date the same Day gave full power and authority to one C. to enter into all the premises and to take possession thereof in the name of the Lessor and after possession so taken to deliver the said Indenture of Demise to the Plaintiff upon any part of the premises in the name of the Lessor and find the Letter of Atturney in haec verba To all c. whereas I the said J. C. by my Indenture of Lease bearing date with these Presents have demised granted and to Farm let c. for and during the Term of two years c. and they further find that the said C. such a day as Atturney to the Lessor by vertue of that writing did enter into the Tenements aforesaid and took possession thereof to the use of the Lessor and immediately after possession so taken the said C. did deliver the said Indenture of Demise upon the Tenements as the Lessors Deed to the Plaintiff to have c. and the doubt was because the Lessor in the Letter of Attorney and said that whereas he had demised and if it were a Demise then the Letter of Attorney was idle but notwithstanding the Court gave Judgement for the Plaintiff WEeks versus Mesey An Ejectione firmae brought against two and one of them was an estranger and was in the house and the principall would not appear and the other appeared and pleaded non informat and the Court was acquainted with the proceedings and the Plaintiff prayed an habere facias possessionem and the Court told the Plaintiff that by that Writ and recovery he could not remove him that had Right when a Lease is made to bring an Ejectment of Land in divers mens hands then they must enter into one of the parcells and leave one in that place and then must he go unto another and leave one there and so of the rest and then after he hath made the last Entry there he sealeth and delivereth the Lease and then those men that were left there must come out of the Land and this is a good executing of the Lease and Pasch the ninth of James the Court held that an Ejectment would not ly of Common pasture or of Sheep-gate BEamont versus Cook Trin. 13 Jacobi An exception taken in Ejectment because the Originall was teste the very same day that the Ejectment was made and adjudged good by the whole Court and one Goodhall brought an originall in Ejectment against Hill and three others and the Plaintiff counts against three of the Defendants and no simulcum against the fourth and this matter was moved in arrest of Judgement And the Judgement was stayed by the whole Court COronder versus Clerk Hill 10 Jacobi rotulo 3315. Action upon an Ejectment brought the Jury found it specially upon a Devise the words of the Will were to my right Heires Males and posterity of my name part and part like the question was who should have the Land and the Court held the Land must go to the Heire at the Common Law and not according to the words of the Will because they cannot consist with the grounds of Law a Will must be construed in all parts the brother cannot have it by the Devise because he is not Heir and the Daughters cannot for they are not Heirs and posterity and therefore neither of them could have it because they are not Heirs and posterity because they that take it must be Heir and posterity
matter of form For if the Jury finde a prior grant of the Queen to the Plaintiffs Lessor although it be at another Court it is sufficient and so by consequence the day is not materiall in substance which mark But Williams Justice and the rest held the traverse to be naught for by that the Jury should be bound to finde the Copy such a day by such a Steward which ought not to be and that it was matter of substance not helped by the Statute of 18 Eliz. DArby versus Bois Hill 5. Jacobi An Ejectment brought for an House in London and upon not guilty pleaded The Jury found a speciall Verdict And the case was Tenant in tail of divers Messuages in London 7 January 44 Eliz bargains and sels the said Houses to J. S. and delivers the Deed from off the Land the 8. of January the same yeer Indentures of Covenants were made to the intent to have a perfect recovery suffered of those houses and the ninth of January after a Writ of right is sued in London for those Messuages returnable at a day to come And the tenth of January the same yeer the Tenant in tail makes livery and seisin to J. S. of one of those Houses in the name of all And the other Messuages were in Lease for yeers and the Lessees did not atturn And the question was if the Messuages passed by the bargain and sale or by the livery And it was adjudged that they passed by the bargain and sale And Yelverton took a difference between severall Conveyances both of them Executory and where one of them is executed presently as in Sir Rowland Heywoods Case where divers Lands were given granted leased bargained and sold to divers for yeers the Lessees were at election whether they would take by the bargain and sale upon the Statute of 27 H 8. or by the demise at the Common Law But otherwise it is if one be executed at first for then the other comes too late as it is in this Case for by the very delivery of the bargains and sale the Land by the custome of London passes without inrollment for London is excepted and this custome was found by the Verdict And therefore it being executed and the Conveyance being made perfect by the delivery of the Deed without any other circumstances the livery of sesin comes too late for it is made to him that had the Inheritance of the Messuage at that time And the possession executed hinders the possession executory for if a bargain and sale be made of Land and before inrollment the bargain takes a deed of the said Land this hinders the inrollment because the taking of the livery did destroy the use which passed by the bargain and sale which was granted by the Court. And another reason was given because it appeared that the intent of the parties was to have the Land passe by the bargain and sale because it was to make a perfect Tenant to the Precipe as appears by the subsequent acts as the Indentures Covenant and the bringing the Writ of Right c. All which will be made frustrate if the livery of seisin shall be effectuall and when an Act is indifferent it shall be taken most neer to the parties intents that may be if a man hath a Mannor to which an advowson is appendant and makes a Deed of the Mannor with the appurtenances And delivers the Deed but doth not make livery of seisin yet now although the Deed in it self was sufficient to passe the Advowson yet because the party did not intend to passe it in Posse but as appurtenant if the Mannor will not passe no more shall the Advowson passe alone as it was agreed 14 Eliz in Andrews Case Which mark And the whole Court gave Judgment accordingly that the Defendant who claimed under the bargain sale should enjoy the Land CHalloner versus Thomas Mich. 6. Jacobi A Writ of Error was brought upon a Judgement given in Ejectment in the Courâ of Carmarthen and Yelverton assigned the Error because the Ejectment was brought de aquae cursu called Lothar in L. and declares upon a Lease made by D. de quidam rivulo aquae cursu And by the opinion of the whole Court the Judgement was reversed for rivulut seâ aque cursus lye not in demand nor doth a precipe lye of it nor can livery and seisin be made of it for it cannot be given in possession but as it appears by 12 H. 7. 4. the Action ought to be of so many Acres of Land covered with water but an Ejectment will well lye by if a stang for a precipe lies of them and a woman shall be indowed of the third part of them as it is 11. E. 3. But if the Land under the water or River do not pertain to the Plaintiffe but the River onely then upon a disturbance his remedy is onely by Action upon the Case upon any diversion of it and not otherwise Which observe VVIlson versus Woddell Mich. 6. Jacobi The Grand-father of the Plaintiffe in an Ejectment being a Copy holder in fee made a surrender thereof to L Woddell in fee who surrendred it to the use of Margery I. for life who is admitted c. But L Woddell himself never was admitted The Grandfather and Father dye the Son who is Plaintiffe was admitted and enters upon the Land Margery being then in possession and the Defendant then living with her as a servant in those Tenements and this was the speciall verdict And Judgment was given for the Plaintiffe And the Court was of an opinion that the Defendant was found to be a sufficient Trespassor and Ejector though he be but a Servant to the pretended owner of the Land because the Verdict found that the Defendant did there dwell with Margery And in such case he had the true title and had made his entry might well bring his Action against Master or Servant at his election And perhaps the Master might withdraw himself that he could not be arrested And secondly it was adjudged that the surrender of J. S. of a Copy-hold is not of any effect untill J. S. be admitted Tenant And if I. S. before admittance surrender to a stranger who is admitted that that admittance is nothing worth to the estranger For J. S. had nothing himself and so he would passe nothing and the Admittance of his grantee shall not by implication be taken to be the admittance of himself for the admittance ought to be of a Tenant certainly known to the Steward and entred in a Roll by him and it was held that the right and possession remained still in him that made the surrender and that is descended to his Heir who was the Plaintiffe And they took a difference between an Heir to whom the Copy descended for he may surrender before admittance and it shall be good because he is by course of the Law foe the custome that makes him Heir
the use of her eldest Son in tayl c. With power to her self at any time to make Leases for one and twenty years and before the Lease in being expired she made another Lease to B. for one and twenty years to commence after the determination of the first Lease And as to the third part of the Land she made a Lease of that for one and twenty years after the death of one Carn who in truth never had any estate in the Land and afterwards she dyes the first Lease expires And I the Son enters and makes a Lease to the Plaintiffe And the Defendant claims under B. the Lessee And adjudged for the Plaintiffe for by such a power she could not make a Lease to comence at a day to come but it ought to be a Lease in possession and not in interest to comence in future nor in reversion after another estate ended but the Law will judge upon the generall power to make Leases without saying such ought to be Leases in Possession for if upon such power she might make Lease upon Lease she might by infinite Leases detain those in Reversion or Remainder out of the Possession for ever which is against the intent of the parties and against reason and adjudged accordingly Trin. 30 Eliz. Earle of Sussex case 6 Rep. 33. And Justice VVilliams said that when he was a Serjeant it was so adjudged in the Common Pleas in the Earle of Essex Case and Judgement by the the whole Court BRasier versus Beal Trin. 10 Jacobi Upon an especial Verdict in Ejectment the Case was that a Copy-holder in Fee of the Mannour of B. in the County of Oxford by license of the Lord lease the Land in question for sixty years to M. if he should live so long rendring Rent with a Condition of re-entry the Copy holder surrenders to the Lessor of the Plaintiff in Fee who demands the Rent upon the Land which being not paid he entred and made a Lease to the Plaintif without any Argument the Court seemed to be of opinion that the Entry of the Lessor was not congeable for Copy-hold land is not within the Statute of 32 H. 8. of Conditions nor the Lessor such an Assignee that the Statute intends for at the Common Law a Copy-holders Estate is but an Estate at will custome hath onely fixed his Estate to continue which Custome goes not to such collateral things as Entries upon Condition for such an Assignee of a Copy-holder being onely in by Custome is not privy to the Lease made by the first Copy-holder nor onely by him but may plead his Estate immediately under the Lord by the opinion of the whole Court ODingsall versus Jackson Mich. 10. Jac. In Ejectment the Declaration was that the Defendants intraverunt and that he did eject expulse and amove in the singular number and after a Verdict for the Plaintiff upon Not guilty pleaded the Defendant shewed this matter to the Court in Arrest of Judgement for the Declaration is incertain in that point because it cannot be known which of the Defendants did eject the Plaintiff for by his own shewing it appears that the Ejectment was but against one and upon that Declaration the Jury could not finde all the Defendants guilty for by the Plaintiffs supposal one onely did eject him but the Court gave Judgement for the Plaintiff that the Declaration should be amended in that point for it was but the Clerks fault and so it was and upon an Evidence in an Ejectment by the Lessees of Cresset and Smith Yelverton said that if a man comes into a Copy-hold tertiously and is admitted by the Lord and afterwards he makes a Lease for three Lives which is a Forfeiture of his Estate yet if he that hath the pure Right to the Copy-hold release to the wrong-doer that it is good for untill the Lord enter he is Tenant in fait and if the rever as Copy-holder 4 Rep. 15. But Walter seemed of another opinion and therefore quaere what benefit he shall have by the Release In an Ejectment the Plaintiff declared of an Ejectment of decem acris pisar and upon the general Issue it was found for the Plaintiff and it was moved in Arrest of Judgement because the Plaintiff had declared de decem acris pisar which is not good for Pease are not known by the Acre and therefore he should have declared de decem acris tene pisis seminaris as if a man will demand Land covered with water he must say decem acras terrae aqua co opertas but the whole Court held it good for in a common acceptance ten Acres of Pease or ten Acres sowed with Pease is all one and so is the opinion of Catesby 11 E. 4. 1. And the man the Secondary said that so it had been adjudged in the Exchequer Chamber upon a Writ of Error MEerton versus Orib Trin. 11. Jacobi Orib brought an Ejectment against Meerton in the Common Pleas 6 Jacobi of a Cole-mine in Durham in the County Palatine there the Defendant pleaded not guilty and it was found for the Plaintiff before the Justices Itinerantes there upon which Judgement the Defendant brought a Writ of Error and assigned for Errour that the Plaintif appeared by an Attourney whereas it ought to have been by Guardian being under age And upon an Issue that he was of full age was tryed at Durham and found that he was within age but the Plaintif had license to discontinue his Writ of Errour and brought a new Writ of Errour Quod coram nobis residat And declared that M. was inhabiting at Westminster in the County of Middlesex and being within age appeared by an Attorney the Defendant in the Writ of Errour confessed that he was inhabiting at Westminster but that he was at full age at the time And upon the tryall in Middlesex it was found that M. was under age And it was alleadged in Arrest of Judgement and it depended a long time that it was a mistryall and the doubt and question was onely whether the tryall at Westminster in this Case was good And Davenport and Yelverton were of opinion that it was not good for the Errour assigned was done at Durham and because they there have the best notice of it it ought to have been there tryed As if Errour be in a Record it shall be tryed where the Record is 19 H. 6. 79. Secondly This is a reall Action in which the Land shall be recovered and therefore though the Issue be upon a collaterall matter yet it shall be tryed where the Land lyes because it concernes the realty but if it had concerned the person onely it had been otherwise and this difference is taken by Montham 19 H. 6. 10. And therefore if a Feoffment be made upon payment c. If upon an Assise brought the Defendant plead payment in another place yet it shall be tryed where the Land lyes And so likewise if the Issue should be which
is the eldest Son although they alleadge their births in severall Counties yet it shall be tryed where the Land lyes and so in that Case a Release of all his right was pleaded against him and he pleaded that he was within age and borne in another County yet it shall be tryed where the Land lyes and so adjudged 7 H. 4. 8. and 17 E. 3. 36. b. 19 H. 6. 15. Nay though the Espousals be alleadged to be in another County yet it shall be tryed where the Land lyes and adjudged 7 H. 4. 8. And Davenport inferrs from 36 H. 6. 9. A grand Cape against one he comes and pleads that he was within age at the time of the first Cape which shall be tryed where the Land lyes And another exception was taken because the Venire facias was not well awarded for it was directed to the Sheriff of Middlesex that he should cause to come twelve Coram nobis apud westmonasterium which is not good for that Court follows the King and may be removed to any place and therefore it ought to have been Vbicunque fuerimus in Anglia but all the Judges Fleming being absent after mature deliberation held the tryall at Middlesex good for they took this difference in their answer to the rule layd downe that what concernes the realty it shall be tryed where the Land lyes for when nonage or the birth are alleadged to intitle one to the Land demanded as if in an Assise the Tenant pleads a discontinuance the Demandant sayes he was within age at the time or to debarr another of Land that he was borne before marriage in these Cases because the Inheritance of the Land depends upon it although they be alleadged in another place yet they shall be tryed where the Land lyes 19 H. 6. And so it is 39 H. 6. 49. b. to be intended but if nonage or birth be pleaded as matter dehors and not to the disabling of the title to the Land but to another purpose as here it is to the person because he could not appeare by Attorney in this Case it shall be tryed where the Infancy is alleadged As if in a Formedon in the Remainder the Tenant pleads nonage in the Plaintiff and prayes that the Plea may stay untill his full age if Issue be taken upon it it shall be tryed in the place where it is alleadged And as to the Exception to the Venire facias the Roll is right which warrants the Writ and therefore they held it was but the Writers fault and should be amended and Doddridge and Cook held the Triall good if Infancy be alledged the Triall shall be by inspection during his Nonage as it is 17 E. 3. Account 121. and 11 H. 4. 115. 25. Ass 2. and 48 E. 3. 11. and the 11. Rep. f. 30. but if his Age upon inspection remains doubtfull then the Judges may swear the party and examine Witnesses And 25 E. 3. 44. and 50 E. 3. 5. but if the Infant come to full Age it shall be tried by the Countrey 33 H. 8. and they took this Difference in what place it should be tried for if the Action be reall it shall be tried where the Land lies as it is 21 E. 3. 28. 28 E. 3. 17. 44 Assis 10. 46 E. 3. 7. 13 H. 4. 3. and if both places be in one County then the venire facias shall be of both 22 E. 3. 11. H. 4. 75. but if nonage be alledged in a personall Action the Triall shall be where the writ is brought 43. H. 6. 40. in Debt the Defendant pleaded infancy and that he was born in such a place yet the Venire facias was awarded of that place where the Action was brought and 43 H. 6. 40. Prisot was of the same opinion and the Law is the same when it concerns the person as in misnomer or that he is not the same person and so in the Case in question although the Action be brought in one place and the nonage pleaded in another County yet it shall be tried where the Action was brought and therefore the Action being brought in Midd. the triall of Midd. is good for a writ of Error is of the nature of an Originall which is personall and they held the Venire facias should be amended being but a matter of Form and that it was no mistriall it being awarded at a right place and likewise the will is right which warrants it and therefore it is but a misprision and no mistriall and the Venire facias shall be amended according to the will and Judgement was given for the Plaintiff in the writ of Error Formedon BRigham versus Godwin The Formedon did abate by the death of one of the Demandants and upon a new writ brought by Journes accounts the Tenant was Essoined and it was moved by the demanded that the Essoin should be quashed because the Tenant was Essoined upon the first writ but the Essoin was allowed by the Court but it was held by the Court that if the Tenant had the view upon the first Writ he should never have the view again at the Common Law we might have had a new Essoin upon view as often as he brings a new writ and Husband held that if by the Common Law it is to be granted the Statute doth not abridge it two views do not ly upon one writ at the common Law and if this shall be accounted but one Writ the view lieth not but in this case the Tenant did relinquish the view because he had day to plead NEvill versus Nevil Mich. 15 Jac. rotulo 77. Formedon in le Discender the writ was generall and the Count was upon a Feofment made after the Statute of uses and a speciall verdict whether the Deed warrant the Count the verdict is whether upon the whole matter the said A. N. gave the moity of the third part of the Mannor c. for default of Issue of the Bodies of either the said G. and D. to the use of either of them surviving and of the Heires males of his Body to be begotten or no the Jury are wholly ignorant the writ was to the use of G. and D. and of the Heirs males of the Bodies of the said G. and D. lawfully to be begotten and for default of such issue male of the Body of either of them then to the use of either of them having issue male of his Body lawfully begotten and for default of such issue male of both the Bodies of the said G. D. or either of them lawfully to be begotten then to the use c. By Deed an implication cannot be intended if there be not apt words otherwise it is in a Will for this is but a gift to a man and his Issue for this gift is but to both of them for life and severall inheritances Bishop al. versus Cossen Trin. 16 Jac. rotulo 62. In Formedon the Tenant pleaded a warranty and pretends
Writ of Error against Matthew upon a Judgement given in a Quare impedit against the King in the Common Pleas of the Church of A. and the Question was whether a double usurpation upon the King doth so put him out of Possession that he shall be forced to his Writ of Right and it was adjudged in the Common Pleas against the opinion of Anderson that he was put to his Writ of Right but a Writ of Error being brought upon that Judgement in the Common Pleas the Judgement was reversed by the opinion of Popham Yelverton Williams and Tamfeild Fennor being of a contrary opinion and they alleadged two Reasons first because the Right of Patronage and the Advowson it self being an Inheritance in the Crown upon Record the Law will so protect it that no force or wrong done by a Subject it shall be devested out of the King for there is a Record to intitle him but there is no matter of Record against him for a Presentationby a Subject is but matter in fait the which Act although it be mixed with the judicial Act of the Bishop to wit Institution yet it shall not prejudice the King being onely grounded upon the wrong of a Subject and the second Reason was because no man can shew when the Usurpation upon the King should commence and begin for it is not to be doubted but that the King after six Moneths passed if the Incumbent cy might have presented for plenarty is no plea against him and Nullnm tempus occurrit Regi and after that Usurpation upon the King the Court doubted not but that the Patronage was still in the King and Popham said that a Confirmation being made by the King to such a Presentee is good to establish his Possession against a Recovery in a Quare impedit by the King afterwards but that it should not inure to any purpose to amend the Estate of the Usurper for he gaines no Posaession by the Presentation against the King but the Release to him made by the King is void as to so much as is in posaession and during the life of the first Presentee the whole Court did not doubt but that the King might present and then the Death of the Incumbent could not make that to be an Usurpation which was not an Usurpation in his life for his Death is a Determination of the first wrong which will rather help then injure the King and Tanfeild said that so it had been resolved in the Common Pleas 23 24 Eliz. in one Yardleys Case for in that Case there was not any Induction for which reason Judgement was not entred but they were all of the same opinion as the Court then was and onely 43 E. 3. 14. 14 E. 3. and 18 E. 3. are against it and Popham said that a Quare impedit was by the Common Law but it was onely upon a Presentment to wit Induction but if the Incumbent was to be inducted then at the Common Law a Writ of Right of Advowson onely lies DIgby versus Fitzch Trin. 14. Jacobi rotulo It was said in this Case by Justice VVarburton that the Presentment is the Posaession in a Quare impedit as in Rent the receiving and in common the taking of the profits and in a Quare impedit one ought to shew in his Title a Presentation either by himself or one of those under whom the Plaintiff claimes as in a Writ of Right of an Advowson one must shew a Presentation in himself or in his Ancestors whose Heir he is plenarty in a Quare impedit shall be tried by the Bishop for the Church is full by Institution onely in common persons Cases but in the Kings Case the Church is not full untill the Clerk be inducted but whether a Church be void or not shall be tried by the Countrey for of Voidency the Countrey may take notice Actions upon Replevins IF the Cattel be distrained the party that owes them may have a Replevin either by Plaint or Writ at his pleasure and if it be by plaint in the countrey and the Bailiff return to the Sheriff that he cannot have the view of the Beasts to make deliverance then the Sheriff ought to inquire of that by Inquest of office and if it be found that the Beast be not to be had then he ought to award a Withernam and if the Sheriff will not do it then an Attachment shall issue against the Sheriff to the Coroners and after that a Distresse and if a Withernam be granted and a nihil returned upon the Withernam he shall have an alias plures and so infinitely and a second deliverance lies after a Withernam and note that sometimes a Withernam lies after a Withernam as when the Plaintiff is non-suit and after a Return habend and that the Beasts are not to be found that the Beasts of the Plaintiff are taken in Withernam and the Plaintiff appears and alleadges that the Defendant had the cattel first taken and prayes Delivery And if the Defendant when the Sheriffe comes to make replevin of the cattel claims property then at the return of that writ another writ de proprietate probanda shall issue to the Sheriff by which writ the Sheriffe is commanded that taking with him custodibus placitorum c. he shall enquire of the property And if it be found that the property was to the Plaintiff then a redeliverance shall be made the Plaintiff and an Attachment against the Defendant to answer for the contempt in taking and unjustly deteyning the cattell of the Defendant appear upon the plures withernam he shall gage deliverance presently And if the Defendant in Court claims the property and it be found against him the Plaintiff shall recover the value of the cattell and his dammages And if the Defendant plead in abatement of the writ that the property is in the Plaintiff and one other c. and the Plaintif confesse it by which the writ shall abate by an award upon the Role and a return habend be awarded to the Defendant yet the Plaintif shall have a new replevin and the return shall not be irreplegiable for the Statute of Westm the second doth not help a false writ or abatement of a writ but the Plaintif may have a new writ from time to time but it helps non-suits in replevin for if he be non-suit he shall not have a new replevin but a writ of second deliverance And if the Defendant upon the return habend adjudged for him cannot have the return of the Beasts and the Sheriff returns upon the return habend that the cattel first taken are dead he may have a Scire facias against the pledges and upon a nihil return upon that he may have a Scire facias against the Sheriff for insufficient pledges are no pledges and the party may relinquish his withernam and fall upon the pledges or the Sheriffe And if cattell be put into a Castle or Fortress the Sheriffe
who makes conisance as Bailiff of Sir Ed. Br. for a common Fine which was assessed upon the Plaintiff who was resident within the Leet of his Master The Plaintiff replies that Sir Edw. by his deed had released to him all rents services exactions and demands out of his Mannor except suit of Court the Defendant demurred And Nichols that suit of Court for which this common Fine was set is excepted and therefore the common Fine is not released by that but is excepted also a common Fine is assessed when the Jurors in the Leet do conceal that which they ought to find and with which they are charged and therefore the release being for exactions out of the Land And this is not for any thing by reason of the Land but because he doth misbehave himself and by the opinion of the whole Court a release of all demands doth not discharge a man of his suite to a Leet by reason of his residency because a Leet is the Kings Court to which every leige-Subject is to come and perform his allegiance to him And also because suit of Court is inseparably inoident to a Court leet which cannot be released PAllets Case Pasch 5. Jacob. In a replevin in which Pallet was Plaintiff the case was such where a man made a Lease of Lands of which Land he was seized by a good Title and of Land of which he was seised of a defeasible Title for years rendring rent and in the replevin the Lessor avows for the whole rent The Plaintiff in the replevin saith that after the lease made the Disseisee had entred upon part of the Land and a demurrer Sergeant Hicham moved for the Advowant that he ought to have a return for he agreed that the rent should have been apportioned but he said that if a man avows for many things and he hath right but to one he shall have a returh habend 5. H. 7. and 9. H. 7. And 4. Ass Pl. 6. where a man brings an assise for rent and hath right but to part yet he shall recover for that part and cited the opinion of Popham put in Walkers Cafe in the third Rep. 24. when rent reserved upon a Lease for years should be apportioned If a man in an action of debt demands more then hee ought yet upon a nil debet pleaded the Lessor shall recover so much as shall be apportioned and assessed by the Jury and shall be barred as to the residue But Yelverton was of another opinion for he said as this case is the Avowant shall not have a return habend But if the apporciament had been made by the Jury he should have had a return habend but in this case the apporciament must be made by the Judges to whom the quantity of the Land cannot appear and therefore they cannot make apportiament for they all agreed that the apportiament ought to be accotding to the value of the Land and not according to the quantity And to prove this he cited Hubberd and Hammonds Case 43. Eliz. co lib. 427. As where the Fines of Copyholders upon admittance are uncertain the Lord cannot exact excessive Fines and if the Copyholder deny to pay it it shall be determined by the opinion of the Judges before whom the matter depends and upon a demurrer to the evidence to a Jury upon the confession or proof of the annuall value of land the annuall value ought to appear to the Judges but in this case the value doth not appear to them and therefore they cannot make any apportiament and therefore the Avowant shall not have a return habend But Tâanfield held the Avowant should have a return habend for the whole rent for the Judges could not apportion this because the value did not appear and the eviction is matter of privity which ought to be discovered by the Lessee and he should give notice to the Lessor and he ought to shew the value of the Land from which he is inriched to the Judges And Popham is of the same opinion for he said the value of the Land ought to be shewed by the Lessee for every one ought to plead that which is in his knowledg and that was in the Lessee's knowledg and not the Lessor and Fenner of the same opinion but Yelverton and Williams against it for Yelverton said that it appeared that part of the Land was evicted and therefore it ought to be apportioned but because the value did not appear to the Judges it could not be apportioned Williams said that if the Lessee surrender part the Lessor need not shew the value and Popham agreed to that because the acceptions of the Lessor had made him privy to it KEnrick versus Pargiter Trin. 6. Jacobi The Defendant justifies the taking of the Cattell damage fesant upon a surmise of a custome that the Plaintiff being Lord hath the place in which c. wholly to himself untill Lammas day and after that day it is common for the Tenants and the Plaintiff is not to put in but only three horses c. And because the Plaintiff after Lammas put in more cattell then three horses the Defendant took them damage fesant as it was lawfull for him to do And issue was joyned upon the custome and found against the Plaintiff and Yelverton shewed in arrest of Judgment that the Defendant could not take the Cattell damage fesant for it appears that the Defendant is only a Commoner and it also appears that the place in which c. is the soile of the Plaintiff and the Cattell cannot be taken damage fesant upon his ground no more then the Tenant can have an Action of Trespass against his Lord guare vi armis c. in regard of his Seigniory as it is in Littleton and 5. H. 7. But the Court said that the matter of taking the Cattell did not come into question for nothing was in issue but the custome which is found against the Plaintiff for if the Plaintiff would have taken advantage of that he ought to have demurred And although by that he had confessed the custom yet whether such Commoner could have taken the Lords Cattell would then properly have come into debate And by Fenner Williams and Cook the taking the Lords Cattel damage fesant was good for by the custom the Lord is to be excluded but only for his stint and the Lord may well be stinted and the whole vestive and benefit of the soile is the Commoners and they have no other remedy to preserve the benefit they have in feeding their Cattell but by taking the Cattell of the Lord if he offends And the Custome hath made the Lord as meer a stranger as any other and without doubt the Commoner might take the Cattell of a stranger 15. H. 7. The chief Justice and Yelverton doubted of it And although the Commoners by the custome had gained the sole feeding in the land of the Lord Yet they ought to have shewed the custome and also the usage
City the Plaintiff surmising that the Sheriff and Coroners are Citizens of that City may pray a Venire facias to the next County of the body of the County or of the next Villiages in the next County And if the challenge of Kindred be not rightly alleadged in the challenge it matters not if it be Kindred and if a Venire facias be quashed because it was returned by the Under Sheriff who was Kin to him or other good cause it shall be quashed and the Venire facias shall be returned by the high Sheriff with words in it that the Under Sheriff shall not intermeddle with it And if the Array be challenged and affirmed the Defendant may after challenge the Poll and must shew his cause of challenge presently And if the Land in question lye in foure Hundreds if foure of any Hundred appeare it is good and note That the challenge of the Array shall be drawne in Paper and delivered presently after the Jury appeares and the Defendant is not bound to make good his challenge with these words Et hoc parat est ver iscare c. And those that try the principall challenge may also try the challenge upon the Tales if the King had been party alone no challenge was to be allowed but if the suit had been in the name of another who sued as well for the late King as for himselfe in a Writ to inquire of waste after a distress no challenge to the Poll lyes It is good cause to challenge a Juror because he was attainted in a conspiracy or attaint or if any Juror was put into the Pannell at the desire of the party it is good cause of challenge to the Array And if a Jury of two Counties and both Arrayes are challenged two of one County shall try the Array of that County and two of the other County shall try the Array of the other County and they shall not joyne untill they be sworne of the Principall and two of one Hundred and two of the other Hundred doe suffice if in Trespass the Defendant justifie as a Servant to the Lord and by his commandement It is good cause of challenge to the Juror that he is a Tenant to the Lord although the Lord be no party to the Record and if Process by challenge is awarded to the Coroners the Process afterwards shall not goe to the Sheriff although there be another Sheriff but after Judgement execution shall issue to the new Sheriff And where a man challenges the Polls of the principall Pannell he afterwards shall not challenge the Array of the Tales and if the Array be quashed it is entred upon Record but if it be affirmed then it is not entred If Trespass be done in diverse Townes in one Shire they may all be joyned in one Writ to wit why by force and armes the Closes and Houses of the Plaintiff at A. B. and C. have broken and c. WOlsey versus Sheppard Constable The Constable being Defendant justifies the Imprisonment by reason that the Plaintiff kept one Alehouse against the forme of a Statute of Queen Elizabeth and therefore by the warrant of two Justices he was committed to Prison and Issue was that he did not keep an Alehouse against the forme of the Statute aforesaid and indeed the Statute was made in Edw. 6. time and the Jury found that he did keep an Alehouse against the Statute in Edw. 6. time And the Court held the mistaking of the day of the Act is not prejudiciall by way of barr but by way of count it must be layd truly GLasbrook versus Einsey Pasch 16. Jacobi in Assault and Battery the Defendant pleaded not guilty and the next terme after the Writ of Venire facias was awarded the Defendants Attorney would have confessed the Action by Relicta verificatione which the Plaintiff did deny to receive having took out his Venire and that those Errors which had escaped in the proceedings by that confession were not holpen as they are after tryall and it was much controverted by the Court whether the Defendant without the consent of the Plaintiff might confesse the Action and the Court was in severall opinions but because the Plaintiff always prays for the confession it seemed he might refuse the confession and afterwards it was adjudged the confession should not be received because it appeared to the Court to be but a practice to lessen the Plaintiffs Damages COok versus Jenman Trin. 12. Jacobi rotulo 329. An Action of Trespass and Battery was brought the last day of October 10 Jacobi The Defendant as to the force and armes sayes nothing but pleads generally that he and one in the sayd last day of October did joyntly enter into the Plaintiffs at S. and did then and there assault the Plaintiff and that afterwards to wit such a day and yeare the said Plaintiff did by his Writing c. release c. the said R. of all Actions c. And avers it to be the same Trespass whereof the Plaintiff complained and the Plaintiff traverses without this that the Trespass c. was joyntly done and demurrer upon this Plea pretending the Trespass is severall and not joynt and so no satisfaction but it was held a good Plea for the Battery was joynt or severall at the Plaintiffs election to have his Action against one or other And a satisfaction by one is a satisfaction for all and the Plaintiff cannot have severall dammages but one dammage against them all and he hath his choice as in Heydens Case to have the best dammages COok versus Darston Mich. 15. Jacobi An Action of Trespass brought by the Committee of a Lunatique being a Copy-holder to whom the Lord had committed the Lunatique and a stranger sowed the Land and the question was whether the Committee or the Lunatique should have the Action and the Court held the Action should be brought in the name of the Lunatique YOunge versus Bartram Battery brought by the Plaintiff against Husband and Wife and two others the Woman and one of the others without the Husband plead not guilty and the Husband and and the other plead Son assault demesne and tryed and alleadged in arrest of Judgement because the Wife pleaded without her Husband and Judgement stayed and a Repleader by the whole Court CRogate versus Morris If a stranger come over a Common the Lord may have an action but not the Commoner for the petty Trespas multiplicity of actions wil not take away my action except it be a damage whereby I lose my Common I can have no action If a stranger come and eat up my Common a Free-holder may bring an Assize of common for it is a Disseisin for a Disseisin of Common is the taking away the profits of the Common And an action of case will lye against the Lord for cutting down the body of the tree when the Tenant should have the loppings if the Commoner may have his Common
l. as it appears by Fleta and Brian the authority of the Marshall was absolute in civill and criminall causes at the Common Law and that Statute restrains them for Debts but not for Trespasse of what nature soever and therefore see the Statute of 30 l. 1. 5 E. 3. ch 2. and 10 E. 3. ch 2. Swaffe versus Solley Trin. 14 Jacobi rotulo 689. An Action of Trespass brought wherefore he took his Close the Defendant justifies for a way the Plaintiff replies that he did the Trespass of his own wrong without any cause alledged and so an Issue joyned and after a Verdict for it was moved in arrest of Judgement that the Issue was not well reined and prayed a new Triall because the Issue ought to be speciall but that exception was disallowed and adjudged that it was helped by the Statute of Jeofails by the opinion of the whole Court PLaint versus Thirley Hill 6 Jacobi rotulo 161. An Action of Trespass brought wherefore by force and Arms the Goods and chattells of the plaintif did take and impound the Defendant pleaded the common Barr and the plaintif assigns the place and are at issue upon that and after a verdict it was moved in arrest of Judgement that there was no Issue joyned because the Lands are not in question and so no assignment necessary and Judgement was stayed but afterwards upon a motion Judgement was given for the plaintif because the Issue was holpen by the Statute of Jeofails and there was the like case upon a Demurrer in the court of common pleas Trin. 4 Jacobi rotulo 1131. CHild versus Heely 13 Jacobi rotulo 3381. vel 381. An Action of Trespass brought wherefore by force and Arms the Close Hedges and Gates of the Plaintiff at W. did break and his grass with walking over it did destroy and other his Grass with Cattell did eat and consume the plaintiff assigned one Close of pasture called Drew and another close called Sutton one other close called L. and the Defendant as to the Trespass except the breaking of the close called G. and P. and the treading c. with his feet and eating with his cattell in the said close called P. and E. not guilty and as to the breaking of the close c. saith the plaintif ought not to have his Action because he saith that E. 6. was seised of the Mannour of W. of which one Messuage c. was copy-hold and shews the custome for a way and another custome for a Common and conveys the Copy-hold to himself and justifies as to the pedibus ambulandi and as to the Trespasse with the Cattell justifies for Common the Plaintif replies as to the Trespass pedibus ambulandi that it was of his own wrong without any cause alledged and traverses the way and as to Trespass with the Cattell demurres and the cause of the Demurrer was as it appeared by motion because in the justification of the Cattell the Defendant had not alledged any custome for Common and so the Plaintif could not take any Issue of that custome but had alledged a custome for the way as for the common and the court were of opinion that it was well pleaded and Judgement upon the Demurrer for the Defendant FAirchild versus Gair Pasch 3 Jac. An Action of Trespasse brought for the tiths of the Church of B. and therein a speciall verdict was as followeth the Defendant was collated to this Church of B. being a Donative by A. and B. the Patrons and that the Church was exempt from the Jurisdiction of any Ordinary the Defendant resigned to A. and C. who was a stranger and to other persons who had no Interest his Church of B. with all Rights c. and afterwards the persons passe their Rights to D. who collates and interests the Plaintiff in the Church by reason whereof he seised the Tithes in question and the Defendant took them and concludes that upon the matter c. and if the Resignation be good then they find for the Plaintiff otherwise for the Defendant and by the opinion of the whole Court Judgement was given for the Plaintiffe for the Resignation was good both in respect of the thing resigned and of the person to whom it was made for it being a Donative and exempt from ordinary Jurisdiction the Resignation must be into his hands and the Incumbent shall not be constrained to keep the Church whether he will or no if the Patron will not accept it and because there is no person to whom the Resignation can be made but onely into the hands of the Patron it is good and although the Resignation be to one Patron and to a stranger it is good to both the Patrons and void as to the stranger and the more strong it is because of the following words to wit to all persons whatsoever which words involve all that have any manner of interest and then seeing it is found that D. who collated the Plaintiff and the Estate of both the Patrons although no agreement be found of the Patrons it is not materiall and the resting of the Plaintiff in the Church is good to give him power to take the profits by reason of the primer possession and although the Defendant did resigne but the Church onely yet it is good to all that appertains to the Church and that which the Defendant may have as Rector there 6 E. 3. is that if the Patron grant Ecclesiam that will passe the Avowson but Herlethen said that was in ancient time and therefore not so then to which the court seemed to agree and the court waived the Dispute of any other thing but onely the Resignation for of that onely the Jury doubted and was onely referred to the court but Popham chief Justice said that if the Patron would not collate any man to such a Donative there was no way to compell him but he is left to his own conscience and he might in time of the vacancy take the profits and sue for the Tithes in the spirituall court for such Donatives at first grow by consent of all persons who have any manner of Right or Interest to wit the Ordinary and Parishioners but Gawdy Fenner Yelverton and Williams against him that the Ordinary might compel him to collate any clerk for the Rectory is only exempted from the power of the Ordinary and not the Patron and that is onely as to charges to be taxed upon the church for the ordinary attendance in a Visitation and such like and Popham said that although the Church in execution of the charge is spirituall yet the patron may collate and a meer lay man as the King may make a temporall man a Dean which hath often happened but all the other Judges were against him in case of the person which is meerly spritual but as to the Deanery they did agree it for the function is temporall but yet Williams said that lay men who have Deaneries ought to have and at all
intaile had been in both 19. H. 6. 75. And the like Law if it had been to the Heirs which the Husband should beget of the body of the woman Little 82. 6. HOrn against Widlake Mich. 6. Jac. An action of Trespass brought wherefore he broke his Close and spoiled his Grass in D. The Defendant pleads that in the Close wherein the Plaintiff supposes the Trespass to be done time out of mind there hath been a foot-way for all people passing in by and through the said Close untill such a day and that such a day the Plaintiff plowed up the said Foot-way and sowed it with Corn and laid thorns on the sides of it And further pleads that in the said Close neer the said ancient Foot-way the Plaintiff before the Trespass supposed to be committed left and set out another Foot-way for all people who would use that new way which way since it was laid forth hath been used by all Foot-passengers by reason whereof the Defendant the time in which c. went in the way so laid forth unto such a place c. which is the same trespass c. and demands judgment c. and the Plaintiff demurs and adjudged against the Plaintiff because the Plaintiff made the first wrong in stopping up the ancient way and had assigned a new way for passengers And therefore the Defendants plea is good by way of excuse as to the Plaintiff for it is not fit he should punish the Defendant against his own agreement As if there were a Foot-way through the Close of I. S. over an hedg and I should remove the hedg into a new place if passengers in using their way goe over the hedg where it is newly placed and fixed they shall not be punished for that for it arises of the Act and wrong of the Plaintiff himselfe and volenti non fit injuria As if water run by the Land of M. and M. stop the water-course so that it surround my ground if now abate this hee shall not have an action against me for entring into his Close because the stoppage was his own Act and the same law in the principall case And although the Defendant hath pleaded generally that the Plaintiff hath set out a way and shews not where it is is not materiall for that which is common to all cannot be assigned to any particular person which was the opinion of the whole Court except Justice Yelverton MEtham versus Barker Mich. 6. Jacobi An action of Trespass brought for that the Defendant the first of August in the fifth yeare the Plaintifs Close at L. in the County of Suffolke hath broken and entred and spoiled his Grass with his Cattel c. The Defendant pleads that in the time when the Trespass c. the free-hold of the Land where c. was in Sir Jo. T. And that the Defendant as servant and by his commandement hath entred and put in his Cattell The Plaintiff replyed that true it was that the Free-hold was in Sir John T. But said that a long time before the Trespasse c. Sir Iohn leased the Close to the Plaintiff at will by reason whereof he entred and was possessed untill the Defendant did the Trespass and traverses without that that the Defendant by the command of Sir Io. entred and put in his Cattell and the Defendant demurred and adjudged against the Plaintiff for the plea in Barre is good and in no wise avoided by the Replication for the Replication must be good only by way of Title And the Plaintiff doth not intitle himselfe to any good Lease at will for he doth not alledg indeed any Seisin in Sir Iohn or any possession in him out of which a Lease at will may be derived And although a Declaration may be good to a common intent and in debt upon a Lease as 21. H. 7. is the Plaintiff may declare that he devised And need not alledg a seisin in himself when he made the Lease c. Yet when a title is made by Barre or Replication as 2 E. 4. 9. is that ought to be certain to all intents because it is traversable and because the Defendant had made a good Justification in Law that ought to be answered by the Plaintiff with a good title to wit that Sir I. T. was seised and made a Lease to him at will which is not so done but it is all one as if he should have replyed that Robin-Hood in Barnwood stood without that by the command of Sir Iohn c. which observe And this by the opinion of Fennor Williams and Cook being only then in Court and Judgment was given accordingly GOodman against Ayling Mich. 6. Jac. An action of Trespass brought that the Defendant the 8. of February 4. Iacobi broke the Plaintiffs house and took and carried away one Brasse Chafer of the Plaintiffs price 20 s. The Defendant pleads that the house is parcell of halfe a yard Land in P. and that it was holden of H. Earl of North as of his Mannor of W. by homage fealty escuage incertain suit of Court inclosure of the Park-pale rent one pound of Comyn and for the Rent behind for three years and the homage and fealty of Th. P. Tenant thereof the Defendant as servant of the Earl and by his command justified the Entry and taking c. The Paintiff replies that the house was held of R. Stanley as of his Mannor of Lee without that that it was held of the Earl in manner and form and upon this they were at issue and the Jury found it was held of the Earl as of his Manner of P. by homage fealty inclosure of the pale rent of a pound of Comyn and no otherwise And if it seemed to the Court that it was not held in manner and form they found for the Plaintiff c. And adjudged for the Defendant for although the verdict did not agree with the plea in manner and form of the tenure yet it agreed in substance in the point for which the taking was to wit that the Land was holden of the Earl and that suffices for there is difference between a Replevin and Trespass For in Replevin because the Avowant is to have return it behoves the Avowant to make a good Title in all things but otherwise it is in Trespasse for there the Defendant is bound only to excuse the Trespass and therefore if there be any tenure it suffices for if the Lord or Bayliffe in his right distrains for that which is not due yet he shall not be punished in Trespass as Littleton 114. for the manner and form And 9. H. 7. which mark by the whole Court and Fleming Justice vouched the 33 H. 8. Dyer 48. B. where the issue was whether a Villain regardant c. or free And the Jury found a Villain in grosse yet it was held good for the substance of the Villianage and of the issue were found H. 5. Jac. rotulo 834.
in the name of Baptisme onely it would be otherwise and secondly although the party had admitted her to have the same name yet the Sherff in pleading had taken expresse Conusance of the contrary and had made it appear to the Court that it was not according to his authority and therefore he shall be punished but the whole Court was of a contrary opinion for first the Scire facias was according to the Judgement in the Common Pleas and well then might all the subsequent Processe be according in course of Law but if the Husband had come upon the Scire facias and shewed how that she was covert then the Action ought to be against both of them and secondly the parties themselves in all the proceedings throughout have all admitted that she is the same person and that she had the same name and therefore this differs from the 10 E. 4. 15. and therefore they shall be concluded from saying the contrary and although the Sheriff had shewed the marriage that was but a bare allegation and suggestion of the Sheriff and it appears not judicially whether it were so or no and thirdly it would be dangerous for the Sherif to return a Non est inventus for because the parties have admitted her name to be so in all the proceedings the Sheriff shall be estopped also as the 3 H. 7. 10. and then an Action of the Case would ly upon the false Return or if the Woman should be in the company of the Sheriff and the party shew her to the Sheriff she might escape CArrill against Baker Trin. 11 Jacobi The Plaintiff brough an Action wherefore by force and Arms he entred into his Warren and digged his Land and chased his Conies and took them the Defendant pleads to all except to the entring the Warren chasing the Conies and digging the Land not guilty and as to the entring of the Warren chasing of the Conies and digging the Land he pleads an especiall Justification to wit that he had Common there time out of mind and because the Plaintiff stored the Borrows there with Conies and made new holes by reason whereof the Defendants sheep feeding there fell into them to their great damage the Defendant did with a Ferret chase the Conies and stopped up the holes with the earth digged out c. and upon that Plea the Plaintiff demurred and George Crook was of opinion that it was not a good justification and the Question was single whether a Commoner might drive out Conies which surcharged the Land and he conceived he could not for the Freehold and possession of the Land is in the Terr-Tenant onely and the Commoners cannot intermeddle with it for a Commoner hath onely the grasse of the Land and not absolutely neither to do with it what he pleases but onely to take it with the mouths of his Cattel and for this see 12 H. 8. 2. a. and 27 H. 6. 10. and 13 H. 8. 16. the espleas in a Quod permittat is alledged in taking the grasse with the mouths of his Beasts and for that see 22 Assis 48. 10. E. 4. 4. and 46 Ed. 3. 23. if a stranger put in his Cattell the Commoner cannot have an Action of Trespass and 13 H. 8. 15. ruled that if a Commoner dig the Land to make a trench he is a trespassor but he may drive out or distrain for doing damage and 15 H. 7. 12. 13 H. 7. 13. and 12. H. 8. 2. a. because after a manner he hath interest in the grasse which is spoiled and consumed by the Cattell of the stranger but although he may drive out and distrain the Cattell of an estranger yet he cannot meddle with the Lords Cattel or the Terr-Tenants although there be more then reasonable as in Fitzherberts Na. brev 125. D. and 8 E. 3. 30. if the Lord surcharge the Common The Commoner may have an Assise against the Lord and if he be a copy-holder he shall have an Action of the case 9 Rep. 112. but the Lord may distrain H. 9. Ja. Kings Bench a prescription for a Commoner to kill Conies of the Lords is not good and he cited Pasch 43 Eliz. Kings Bench rotulo 234. Belly and Laughorns Case the Lord may use the Sale as he pleases but as his Case is the Commoner although Tenant of the Land cannot kill the Conies with his Ferret For a free Warren in such a precinct is a charge upon the Land in what hands soever it comes but if he hath a Warren adjoyning and the Conies come into the Lands of another out of the Precinct then he may kill the Conies and he cited Boslers and Hardies Case in the Common Pleas and for an express authority he cited Old and Conies case Hill 29 Eliz. and Sir Robert Fitcham he was against it and he agreed he could not kill the Conies but as to the digging he took this difference if a Commoner makes any thing de novo in the Land he is a Trespassor as it is adjudged in the Case of a trench before and the like but if a commoner amends and reforms a thing abused it is no Trespass and therefore if the Land were full of Mole hills he may dig them down 13 H. 8. and 42 Assis if the Lord make a Hedge the commoner may pluck it down 23 E. 3. 6. a. See if the Lord make a Pond in the Land the commoners may dig and let the Water out and therefore holes that were made long in a hurt and Damage to the Land the commoner may put the earth digged out again into its place Secondly the Defendant hath shewed that the Cony holes were made by the Plaintiff himself and he shall never take advantage of his own wrong and Thirdly the Law will allow every man to preserve his inheritance and it cannot be preserved any other way for if he should bring his Assise yet he in that shall recover but Seisin and no Reformation of the Trespass and wrong done and the opinion of the Court seemed to incline for the Plaintiff and Doddridge Justice said that a Lord or his Feoffee may make new conie-Borrows lawfully for they are necessary for the preservation of the conies but one fault found by Justice Haughton in the pleading nothing was done for the Plaintif declared for entring into his Warren the Defendant pleads to all but the Warren digging and chasing not guilty and as to the digging and chasing he justifies for common here but answers nothing as to the Warren neither by confession or traverse and therefore all was discontinued as Herlackendons Case is Co. 4. Rep. and to this the whole court Fleming being absent agreed WAldron against Moore Trin. 11. Ja. The Plaintiff brought an Action of trespass against Moore wherefore his Close called Gerleford at Rentesbury in the County of Devon by force and Arms hath broken and entred c. The Defendant pleads that a long time before the Trespass was supposed to be done one
BAnks against Barker Hill 12. Jac. rotulo 1979. In an Action of Trespass the venire facias was well awarded upon the case of the venu in Westown and of the Mannor of D. and the Writ of Venire was mistaken to wit of the venu of Westown and exception being taken after tryall the Court was moved for the amending of the venire facias by the roll and it was denyed because the Jury did come of another venu then they ought by the Law of the Land to come and therefore could not be amended but afterwards the Court seemed to be of an opinion that the awarding of the venu in the roll was mistaken because it was of the venu of the Villiage and Mannor and it should have been of the Mannor only being to try a custome of the Mannor FOrrest against Headle Hill 13. Jac rot 1123. An Action of Trespass brought and a continuando of the Trespass unto the day of the shewing forth the Plaintifs Originall to wit the 20. day of November which day was after the shewing forth of the Originall and because the Jury gave damages for the whole time which ought not to be it was proved that the Judgment upon the verdict might stay but by the whole Court the videlicet was held idle and Judgment given for the Plaintiff COcks against Barnsley Hill 10. Iac. rotulo 2541. An Action of Trespass brought and a speciall verdict found and the question was whether Land held in ancient Demesne was extendable for debt and an action of Trespass brought for that cause And Justice Nichols held it was extendable for otherwise if it should not be extendable there would be a fayler of Justice for if a Judgment should be had against a man that had no other Land but what was in ancient Demesne and that it could not be extendable there would be a fayler of Justice which the Law doth not allow of but an Assize or a re-disseisin doth not lye of Land in ancient Demesne because of the Seisin that must be given by the Common Law and it would be prejudicial to the Lord which the Law allows not and Wynch and Hubbard were of the same opinion For ancient demesne is a good plea where the Free-hold is to be recovered or brought in question but in an action of Trespass it is no plea. And note that by this execution neither the Free-hold nor Possession is removed but only the Sheriffe enters to make execution upon a Judgment had in the Common bench in debt which is a proper Action to be brought there WRight and his Wife against Mouncton Hill 12. Iac. rotulo 43. An Action of Trespass brought to which the Defend pleaded not guilty And the Husband only made a challenge that he was servant to one of the Sheriffs and prayes a processe to the Coroners and the Defendant denies the challenge and therefore notwithstanding the challenge the Venire issued to the Sheriffs and after a tryall exception was taken because the woman did not joyne in the challenge and it was held that the Husband and Wife should joyn in the challenge although the cause of challenge proceded from the Husband only but after tryall it was helped by the Statute of Ieofailes and judgment given for the Plaintiff BIde against Snelling Hill 16. Iac. rotulo 1819. An Action of Ejectment brought and also a Battery in one and the Writ and after a verdict it was moved in Arrest of Judgment because the Battery was joyned with the Ejectment The damages were found severally and the Plaintiff had released the damages for the Battery and prayed Judgment for the Ejectment Winch held the Writ naught but Judgment was given for the Plaintiff notwithstanding STeward and his Wife against Sulbury An Action of Trespass brought wherefore by Force and Armes the Close of the Wife while she was sole at D. hath broken and the wood of the said D. to the value of 1005. there lately growing hath cut down and carried away and in his Count shews that he hath cut downe two acres of wood and exception was taken because he declared of so many acres of wood and not of so many loads of wood to wit twenty c. loads and held by the Court to be a good exception BLackeford against Althin Trin. 14. Jac. rotulo 3376. An action of Trespass brought wherefore by Force and Armes a certain Horse of the said Plaintiffs took away c. The Defendant conveys to himselfe a certain annuity granted to him by one John Hott The Plaintiff shews that one William Hott Father of the said Iohn Hott the Grantor was seised of Land in Fee which Land was Gavel-kind Land and devised it to his Wife for life the remainder to Iohn Hott the Elder and Iohn Hott the Younger his Sonne and the Heirs of their bodies And afterwards William dyed and the Woman entred and was seised for life and the two sonnes entred and were seised in tayl and being so seised Iohn Hott the younger had issue Iohn Hott c. and traverses without this that Iohn Hott the Father at the time of granting the annuity was seised of the Tenements aforesaid with the appurtenances in his Demesne as of fee as c. And the Defendant as before saith that the said J. H. the Father at the time of the granting the annuity aforesaid was seised and after the tryall it was moved in Arrest of Judgment supposing it was mistried because the issue was that the said J. H. the Father at the time of the grant c. And it doth not appear that the said J. H. was nominated Father neither could it appear that the said J. H. was the Father and so the word Father was idle and the Court were of opinion that it was helped by the Statute of Ieofailes and the word Father was idle and judgment was given for the Plaintiff A. brought an Action of Battery against the Husband and Wife and two others the Wife and one of the others without the Husband pleads not guilty and the Husband and the other pleaded seu assault demesne and tryed and alledged in arrest of Judgment because the Woman pleaded without her Husband and Judgment was stayed and a Repleader alledged and this case was confirmed by a case which was between Yonges and Bartram HArvy against Blacklole Trin. 8. Jacobi rotulo 1749. An Action of Trespass brought wherefore by force and Armes his Mare so strictly to a Gelding did fetter that by that fettring the Mare aforesaid did dye If a stranger take a Horse that cometh and strayeth into a Mannor the Lord may have his action of Trespass If my stray doth stray out of my Mannor and goeth into another Mannor the day before the yeare be ended I cannot enter into the other Mannor to fetch out the stray If I take an Horse as a stray and onother taketh him from me the Action lyeth not by the Owner against the second taker
for the matter it is not within the Statute and then for the persons also he intended that it is not within the Statute and this appears by the words of the Statute of 28. Edw. 1. Articuli super Chartas and to that 10. H. 6. 130. it is adjudged that Judgement in such case there given is void and Coram non Judice so 7 H. 6. 30. expresses the cause to be insomuch that none of the parties are of the houshold of the King 4 H. 6. 8. 19 Edw. 4. 8. 5. Edw. 4. 32 H. 6. Rot. 27. And he cyted also Michelburns Case to be adjudged upon a Writ of Error in the Kings Bench 38 Eliz. That they could not tender a Plea in Trospasse for Trover and Conversion if none of the parties were of the Kings house and further he said that when a Court hath Jurisdiction and errs in matter of proceedings or in Law there the Execution made by force of their Process shall be lawfull But where the Judgement is void by default of Jurisdiction as in this Case there it is otherwise as 10 H. 6. 13. Recovery of Land in the Spirituall Court is void so Formedon commenced Judgment given upon that before the Judges of Assises void So 36 H. 6. 32. Recovery of Land in Wales in this Court is void and 8 Edw. 4. 6. Recovery of Land in ancient demesne is avoidable by Writ of Deceipt But in the other cases before the Judgment and Recovery is absolutely void and Coram non Judice for default of Jurisdiction So in 9 H. 7. 12. b. Recovery of Land in Durham Chester or Lancaster here is void for the same cause And in this case also the said Statute makes that void by expresse words see the statute of Articuli super Chartas Chap. 3. And to the case of 14 H. 8. before cyted of Warrant awarded by Justice of Peace he agreed that insomuch that the Justice of Peace had Jurisdiction of causes of Felony and erred only in the forme and manner of his proceedings and so in all the other cases which were put of the other part And also hee agreed that a Writ of Error may be well maintained if such Judgement which is void as it was in Michelburns case for the party may admit the Judgment to be but voidable if he will And to the exceptions to the pleading that is that the authority is not prosecuted 1 Postea that is such a day which was before the Judgment and yet it seems good and that in the first the authority was very well prosecuted in the 2 Postea was sufficient and the other words that is such a day is but surplusage and so he concluded and prayed Judgment for the Plaintiff and it was adjourned Michaelmas 1611. 9. Jacobi In the Common Bench. Peto against Checy and Sherman and their Wives Triâ 9. Jacobi Rot. 1151. IN Trespasse and Ejectione firme the Defendants pleaded that one of the Defendants made agreement with the Plaintiff for the said Trespasse and Ejectment with satisfaction and demands Judgment if action upon which the Plaintiff demurred in Law and it was argued by Nicholls Serjeant for the Plantiff that the agreement was no plea though it be said by Keble in the 11. H. 7. 13. That though it be a Plea in Ravishment of Ward quare Impedit and quare ejecit infra terminum insomuch that they are actions personall But Wood denyed that insomuch that Inheritance is to be recovered and in Ejestione firme tearm shall be recovered and for that it shall not be spoken and of this is Wood expresly in the 13. H. 7. 20. b. That in Ejectione firme agreement shall not be a plea insomuch that the tearm is to be recovered which is the thing in demand And there also it is agreed that in Waste brought against Lessee for yeares in the Tenet agreement is good plea and so Vavasor intended if it be in the Tenet but not if it be brought against Lessee for life And also he intended that by Recovery in Ejectione firme more shall be recovered then the tearm only for by that the reversion shall be also reduced and for that the Inheritance is drawn in question and it is said in 11. H. 7. 13. that it shall not be a plea in Assise insomuch that there the Free-hold is to be recovered and by the same reason hee intended that shall be no plea insomuch that more is to be recovered then in Assise for there the Tenant only shall recover the free-hold and his damages but here the Tearm and the Inheritance also are reduced and revested And this is the reason also which is given in 11. H. 7. 13. b. by Fisher That if a man make a Lease for years rendering Rent and after brings Debt for the Rent behind the Defendant cannot wage his Law notwithstanding that the action is personall But this is more high in his nature as it is there said and yet there nothing shall be recovered but only damages for which a man may have satisfaction Also he intended that it was not well pleaded that is that such agreement was had between the Plaintiff and one of the Defendants and betwixt those shall be intended those two only and also Ipsum and Alios by his commandâment and doth not shew that this was made by the other two by his commandement and so he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant that the Plea is good and that the nature of the Action is only Trespasse by force and arms and differs from a Quare ejecit but Ejectione firme differs from predict infra terminum and lyes against the immediate Ejector but Quare ejecit lyeth against him which hath title as he in reversion 7 H. 4. 6. b. Ejectione firme was brought by Executors of Land let to their Testator for years upon outing of the Testator by the statute of 4 Edw. 3. Chap. 6. which gives action for the Executors of goods taken out of the possession of their Testator and it seems to him also that proces of Outlawry lyes in an Ejectione firme but in Quare ejecit infra terminum only summons So it is 11. H. 7. 13. There is a great difference between Waste and this for there the Process is Distress and other speciall Process But so is it not here but only the Process which is in other generall actions of Trespasse and so is the expresse opinion of Keble in 11. H. 7. 13. That in ravishment of Ward Quare Impedit and quare ejecit infra terminum that agreement is a good plea and yet all these trench upon the Realty and in ejectione firme if the tearm expire hanging the action this shall not abate the Writ but the Plaintiffe shall have Judgement for his damages otherwise in a Quare ejecit infra terminum And it was resolved 20 Eliz. That if an ejectione firme be brought at the common Law of Lands in
name So by Custome as the Custome that if a Copy-holder will sell his Copy-hold Estate that he which is next of blood to him shall have the refusall and if none of his blood then he which Inhabits in the neerest part of the part of the ground shall have it before a stranger giving for that as much as a stranger would and the Lord shall have him for his Tenant whether he will or no for it shall be intended that so it was agreed at the first and it is reasonable and if it had not been ruled and adjudged before yet he conceived it might now be a rule and adjudged insomuch that it is so reasonable and good and for the second custome that is for the custome of cutting of Trees by such Copy-holder which hath such priviledge he conceived also that it was good But he agreed that a bare Tenant for life cannot be warranted by custome to do such an Act as it was here adjudged between Powell and Peacock But here he had a greater Estate then for life for he hath power to make another Estate for life and shall have as great priviledge as Tenant after possibility c. which is in respect of Inheritance which once was in him and he may do it for the possibility which he hath to give to another Estate as it is agreed in 2. Ed. 4. that a Lease fo a hundred yeares is Mortmain in respect of the continuance of it so here for the Estate may continue by such power of nomination for many lives in perpetuity and that as when at the Common Law they have in reputation and opinion of Law a greater Estate may cut and sell Trees so here insomuch that the Estate comes so neere to Inheritance he conceived that he might cut the Trees by the custome and that the Custome is good and so he concluded that Judgement should be given that the Plaintiff should be barred in respect of Customes and then to the third that is when a man lets Land and by the same Deed grants the Trees to be cut at the will and pleasure of the grantee there the Lessee hath distinct Interest But if the Lessor by one selfe same clause had demised the Land and the Trees there the Intendment is But notwithstanding that there are severall clauses and that he hath distinct Interests yet he conceiveth that the Trees remaine parcell of the Inheritance and free-hold till they are cut and are severed only in Interest that is that may be felled and devided by the Axe for Tythes shall not be paid for them if they exceed the growth of twenty yeares not it shall not be Felony for to cut those and burn them And it is not like to an Advowson for that may be severed and for that he conceived that if the Custome had not warranted the Cutting and Selling that the Copy-holder had forfeited his Estate and that the Lord might very well have taken advantage of it and 29. assis 29. A man sells Trees to be cut at Michaelmasse insuing and before Michaelmasse Haukes breed in them the seller shall have them by which it appeares that the property is not altered So that though they are not parcell of the Mannor yet they are parcell of the Free-hold insomuch that they are not severed in Facto And he agreed that Lessee for yeares of a Mannor shall take advantage of Forfeiture and need not any presentment by the Homage and Littleton fol. 15 saith that the Lord may enter as in a thing Forfeited unto him and so for attainder of Felony And if a Copy-holder makes a Lease for yeares by which he forfeits his Copy-hold Estate And after the Lord grants the Mannor for yeares the Lessee of the Mannor shal take advantage of this Forfeiture made before he had any Estate in the Mannor without any presentment by the Homage But here in this case the Custome warrants the cutting of the Trees by the Copy-holder and for that he concluded all the matter as above that the Plaintiff should take nothing by his Writ Coke cheife Justice agreed and he said that Fortescue and Littleton and all others agreed that the Common Law consists of three parts First Common Law Secondly Statute Law which corrects abridges and exp'aines the Common Law The third Custome which takes away the Common Law But the Common Law Corrects Allows and Disallows both Statute Law and Custome for if there be repugnancy in Statute or unreasonablenesse in Custome the Common Law Disallowes and rejects it as it appeares by Doctor Bonhams Case and 8 Coke 27. H. 6 Annuity And he conceived that there are five differences between Prescription and a Custome And all those as pertenent to this cause First in the beginning Pugnant ex Diametro for nothing may be good by prescription but that which may have beginning by grant and also prescription is incident to the Person and Custome to some place and holds place in many Cases which cannot be by grant as in 11 H. 4. Lands may be devised by Custome and so discent to all the Sons as in Gavelkind and to the youngest Son in Eurrough English and others like which cannot have their beginning by Grant but prescription and Custome are Brothers and ought to have the same age and reason ought to be the Father and Congruence the Mother and use the Nurse and time out of memory to Fortifie them both Secondly they vary in quality for prescription is for one man only and Custome is for many if all but one be not dead Thirdly they vary in extent and latitude for prescription extends to Fee-simple only but Custome extends to all Interests and Estates whatsoever as appeares by pleading for Tenant in tayl for life or yeares cannot prescribe in what Estate nor against the Lord in his Demesnes but they ought to alledge the Custome and against a stranger they ought to prescribe in the name of the Lord and for that prescription b. Copy-holder of Inheritance may sell the Trees is not good but such Custome is good and 5. Ed. 3. 24. And the old Reports 196. One Tenant being a Free-holder prescribes to have Windfalls and all Trees-which are withered in the Top and if the Lord makes them in Cole to have so much in money And so if they sell and this for Sale and this was not-good insomuch that it is alledged in the person as prescription but if it had been alledged as Custome and to be burnt in his house then it shall be good as appendant and 14. Ed. 3. Barr 227. Wilby saith to be adjudged that prescription to have Turbary to be burnt in his house is good but not to sell and 11. H. 6. 17. accordingly by which it appeares that this may be very well by Custome and cannot be by prescription Thirdly he conceived that where a man may create an Estate without nomination there he may create that by nomination And also that which may be done by the
doth not pass till Livery and Seisin be made Also the intent of the parties is not that they shall pass together for if the intent were otherwise the Law would not devide them as it was adjudged Hillary 15. Eliz. in the Lord Cromwells case where Tenant in Tayl was of a Mannor with the Reversion to his right Heirs and he by his Deed gives and grants the Mannor and the Reversion of that and includes Letter of Attorney within the Deed to make Livery but Livery was not made and yet the Reversion doth not pass for his intent appeares that it should pass by Livery and Seisin and not by grant and also in Androwes case the Advowson appendant to a Mannor shall not pass without inrolment of Bargaine and Sale yet there were words there that that might passe by Grant for this was against their intent otherwise if a man makes a Lease for life or years of a Mannor and grants the Inheritance of the Advowson by the same Deed and so of the case of 23 Eliz. Dyer 374. Lessor deviseth Grants and to farm lets the Mannor and the Trees and they passe joyntly and the Reason is insomuch that it is but a Joynt sentence and not severall as it is here also he intended that the life of the Lessee for life is not averred and for that he shall be intended to be dead and for that it is a severall grant of the Trees of the Free-hold for the Interest of them is setled in his Executors for if he had made Sale of them before that the Copy-holder had cut them down then that had not been forfeiture see 5. H. 7. 15 Ed. 4. 14 Eliz. Dyer And then the Case is this Tenant for anothers life of a Mannor makes a Lease for yeares of the Free-hold of which an Estranger hath a Copy-hold Estate for life in Esse Lessee dies and he conceived that the Copy-holder shall not be an occupant for it ought to be Vacua Possessio and this was the reason of the judgment in Adams Case in 18 Eliz. Where a man makes a long Lease for years and after intending to avoyd this Lease makes a Lease to another old man for anothers life to the intent that the Lessee for yeares should be occupant when the old Lessee died and so drowned his Tearm and after the Lessee died and resolved that the Lessee for years shall not be an occupant insomuch that there was not Vacua Possessio and for this it seems to him that if Lessee for anothers life makes a Lease for years and dyes that the Lessee for yeares shall not be an occupant notwithstanding that he made speciall claim and that for the reason aforesaid but he agreed that a Lessee for anothers life makes a Lease at will and dies there the Lessee at Will shall be an Occupant insomuch that his Estate is determined and yet there is not Vacua Possessio according to 38 H. 6. 27. But he did not say there should be an occupant in these cases but cyted Bracton fol. 8. that if the Sea leave an Island in the midst of that the King shall have it and not Occupanti conceditur and so he concluded that the Plaintiff shall be barred and that Judgment shall be entred for the Defendant which was done accordingly and it was afterwards agreed upon motion in this case whether it would not make difference if the Trees were cut by the Copy-holder before that he hath made his nomination or not notwithstanding it was objected that when he hath made his nomination then he was only bare Tenant for life and the Priviledge executed and he in Remainder was also Tenant for life only for he cannot nominate till he comes to be Tenant in possession but this notwithstanding insomuch that they had power to make nomination that is the first Tenant again if the second died in his life time and the second if the first died in his life time and so the Peiviledge continues all the Justices continued of their opinions and according to that Judgment was entred for the Defendant and that the Plaintiff should be barred and should take nothing by his Writ Trinity 8. Jacobi 1610. in the Kings Bench. The Lord Rich against Franke. THE Lord Rich brought an action of Debt against Franke Administrator of one Franke and this was for a rent reserved upon a Lease for yeares made to the Intestate and the Action was brought in the Debet and Detinet for rent due in the time of the Administrator and verdict for the Plaintiff and after moved in Arrest of Judgement by the Councell of the Defendant that this Action ought to be brought in the Detinet only and not in the Debet and Detinet and Chibborn of Lincolnes Inne conceived that the Action was well brought in the Debet and Detinet and to that he sayd that Hargraves case 5 Coke is so reported to be adjudged but he saith that he hath heard the councell of the other part insisted upon that that this Judgment was reversed and for that he would under favour of the Court speake to that And hee conceived that the Action so brought is well brought for three Reasons The first shall be drawn from the nature of the Duty and to that the Case rests upon this doubt that is if the Administrator is now charged for this Rent as upon his own duty or as Administrator and it seems to him not as Administrator but as upon his own duty for he saith that it is not Debt nor duty till the day of payment as Littleton takes the diversity in his Chapter of Release between Debt upon an obligation and a Rent and the day not being incurred in time of the Intestate this cannot be his duty therefore that ought to be duty in the Administrator and to the cases of 19 H. 8. 8. Where the Executor of a Lessee for twenty years which had made a Lease for ten years rendring Rent brought action of Debt against the Lessee for ten years for rent incurred in the time of the Executor and this is in the Detinet only and the Case of 20 H. 6. 4. Where an Executor brings an action of Debt upon Arrerages of Account of an Assignement of Auditors by themselves in the Detinet only and he sayd that in these Actions the Executors were Plaintiffs and in all actions brought by Executors where they are Plaintiffs and the thing recovered shall be Asset the Action shall be brought in the Detinet but in our case they are Defendants and so the diversity and to the Objection that may be made to this Contract out of which this duty grows and arises it was made by the Intestate and not by the Administrator himself and so this is a duty upon the first Privity of the contract he answered that there is great difference when a thing comes due by the Contract of the Testator alone and ought to be payed in his time in
which the Executors are to be charâed meerly as Executors there the Writ shall be in the Detinet but when the thing grows due in part upon the contract of the Intestate and part by the Occupation of the Administrator as in our case there it shall be brought in the Debet and Detinet he cited a Case which was adjudged 26 El. in the Common bench between Scrogs the Lady Gresham where it was resolved that the Lady Gresham was made chargeable to the Debts of her Husband by act of Parliament and Action of Debt brought against her in the Debet and Detinet and debated if this were well brought and after Argument adjudged that it was well brought in the Debet and Detinet for though she was not chargeable for the Debts of her Husband upon his own Contract yet where an act of Parliament hath made her chargeable and a Debtor and for that reason the Action shall be brought against her in the Debet and Detinet and to the principal case he cited the Case of 11 H. 6. 7. Where it it said by Babington Newton that if a man be Lessee for years and is in arrears for his Rent and makes his Executors and dyes and the Executors enter into the Land and occupy in this case for the Arrerages due in time of the Testator Action shall be brought against them in the Detinet but for Rent due in their own occupation the action shal be brought in the Debet and Detinet for that it rises upon their own occupation and with this agrees 20 H. 6. 4. And he sayd that he would demand this case of the Councell of the other part that is a man hath a Lease for yeares as Administrator and Rent incurrs in his time and he makse his Executors and dyes and Administration of the Goods of the Intestate is committed over to another against whom shall the Action be brought for the Rent that is against the Executors of the first Administrator or against the second Administrator and it seems cleerly to him against the Executors of the first Administrator for their Testator had taken the profits which case proves that they shall not be charged meerly as Executors or Administrators but as takers of the profits c. And Occupiers of the land And this was his second reason of the nature of Profits insomuch that they were raised by the personall labour of the Executor or Admistrator and are their Goods as he sayd and they have them not meerly as Executors or Administrators and for that the Action is well brought as it is and he sayd that the Heir for Debt of the Father shall be charged in the Debet and Detinet and yet this was the contract of his Father but he is charged in respect that he hath the land and the occupation and profits of that so here insomuch that the Executors have the profit of the Tearm by the same reason they shall be charged in the Debet and Detinet and he resembled the case to a case put in Fitz. Na. Brâ⦠In his Writ of Debt where a woman sole hath a lease for years and takes a Husband and the Rent incurrs and the wife dies the Husband shall be charged in the Debet and Detinet for this rent and the reason is because he hath taken the profits so here the Administrator hath taken the profits and is not answerable for the Profits unless they amount to more then the rent is And by the same reason the action is well brought against him as it is The third and last reason was for the Inconveniency and to that he sayd if this Action be brought in the Debet and Detinet there is no inconvenience but if it should be brought in the Detinet only then should the Administrator be charged but of the Goods of the dead where if he be not charged of his own proper Goods peradventure he shall not be so carefull to pay his rent but would stop the Lessor in his Action which should be trouble and vexation and so by this reason also he concluded the Action well brought in the Debet and Detinet and this was gaynsayd by Towse George Crooke and Harris of the other part and it seems to them that it should be in the Detinet only insomuch that the cause of this Action growes of the contract of the Testator and the Tearm is Assets in their hands and the Administrator hath the Tearm as Administrator and by the same reason the Occupation shall be as Administration and by consequence he shall be charged as Administrator and not otherwise and then the Action shall be brought against him in the Detinet only and that he shall be charged as Administrator they cited the Book of 14 H. 4. 28. Where it is sayd if a man hath a lease for years and makes his Executors and the rent incurrs in their time and action of Debt is brought against them and they make default he which first ãâã all come by distress shall answer according to the Statute of 9 Ed. 3. chapter 5. which Book proves directly as they say that they are charged as Executors and not otherwise and then it followes that the Action should be in the Detinet so it seems to them that in all Actions where they are named Executors or Administrators that the Action shall be brought against them in the Detinet only but in this action they ought to be named Executors or Administrators for he doth declare of a lease made to the Intestate and for that it seems it shall be brought in the Detinet only and this was the reason of Yelverton Justice which was of their opinion only against the other Justices and to that which was sayd that an Action shall be brought against the Heir in the Debet and Detinet for the Debt of his Ancestor they answered that this is now become the proper Debt of the Heir but it is not so in the case of an Executor or Administrator And it seems to Towse that if an Administrator hath a Lease for twenty yeares and makes a Lease for ten yeares rendring Rent and brings an Action for this Rent that the Action shall be brought in the Detinet only for that this is a new contract made by the Administrator and he hath gained new Reversion because it was derived out of the Lease for twenty yeares and so this shall be of the same nature and the Rent shall be Assets in his hands and in proofe of this he cited the book in 17. Ed. 3. 66. Where an Executor sold the Goods of the Testator and the Vendee made an Obligation to them for the money and the Executors brought an Action of Debt upon the Obligation and this was brought in the Detinet only And the exception was taken because it was duty of their owne contract and for that the Writ should be in the Debet and Detinet and yet the Writ
cited the book of 24 Ed. 3. Where a Tales was returned by the Sheriff of Middlesex and the party challenged the Jury because he sued the Sheriff for the death of his Servant and this was a principall challenge for in such case his life was in question the same Law in case of Maintenance and Champerty for the Law hath inflicted great punishment upon such Offences so these matters tend to utter subversion of his Estate and life but otherwise in Actions of Trespasse and so he concluded no principall challenge To the abatement of the Writ it seemes no Error First he conceived that there is no entry and for the reason that Crooke had given before that is because he entred to hunt and not to keep possession and hath not shewed any Warrant to kill the Buck and he cited the book of the 5. of Ed. 4. fol. 60. Where Babington brought an Assise of the house of the Fleete and hanging the Assise Babington came to the Jury within the house when they had the View with his Councell to shew Evidence for the view and this was not any entry to abate the Writ and so the entry to hunt is an entry for another purpose then an entry to keep possession not being by warrant as it is not found and for that no entry to abate the Writ But admitting that this had been an entry to abate the Writ yet being a thing which doth not abate the Writ without Plea and that cannot be pleaded as the case is he conceived was no Error but if it had been a thing which abated the Writ in Facto without Plea then to give Judgement upon a Writ abated is Error As if the party die hanging the Writ or if a woman sole brings an Assise and takes a Husband hanging the Assise or if the Plaintiff in a Assise be made Judge of Assise as the 15. of Assise in all these cases the Writ is abated in Facto without Plea But entry shall not abate the Writ without Plea and so it seemes to him no error But he conceived that there were two other errors for which he reversed the Judgement The first was that this Assise was de Libero Tenemento in Clepson and the plaint was of the keeping of the Park of Clepsom and of the Herbage and Paunage of the Parke aforesaid called Clepsom and made his Title for Herbage and Paunage of the Park of Clepsom and so he conceived that there is variance between the Plaint and the Title and Park of Clepsom and Clepsom cannot be intended one without speciall averment and for that he conceived it to be errour And to that he cited the case of twelve Assises two Where in attaint the first originall was of the Mannor of Austy and the Attaint was of the Mannor of Auesty and yet for that that the Attaint is founded upon the Record and not upon the Originall and the Record was of the Mannor of Auesty this was very good but the Booke saith that this variance between the Originall and the Record was sufficient to reverse the Record for errour and the case in 42 of Ed. 3. Where Scire facias was brought of Tenements in Eastgrave and the Fine was of Tenements in Deepgrave and for the variance the Writ abated and in the case of 5 Coke 46. Formedon was brought of the Mannor of Isfeild and the Tenant pleads in barr a recovery of the Mannor of Iffeild and this shall not be amended unlesse it appear that this is a misprision of the Clark or by other averment he cited also the case of 3 H. 4. 8. Scire facias upon garnishment in a Writ of Detinue of writings the Originall name John Scripstead and the Scire facias was made Iohn Shiplow and therefore agreed that he shall sue a new Scire facias so he said in the Principal case the Plaint being of Herbage and Paunage of Clepson Parke aad the title being at Clepsom Parke these shall not be intended to be the same Parke without averment and there in no averment in our case and for that such variance is such errour that shall reverse the Judgment The second errour for which he reversed the Judgment was that which was moved by Justice Crook that the Jury have not found any seisin of the Paunage for it seemed to him that a Horse could not take Seisin of paunage and for that he defined paunage and he sayd that Linwood title-Tithes saith the Paunagium est pastus Porcorum as of Nuts and Akornes of trees in the wood and Crompton saith that this is Pastus Porcorum and he saith that Paunagium is either used for Paunage or the Paunage it self and the Statute of Charta de Foresta saith that every Freeman may drive his Hoggs into our royall Wood and shall have there Paunage but he doth not say Horses or other Beasts but he conceived that if the Earle of Rutland had right in the Park that this had been sufficient seisin of Herbage and Paunage also for Hoggs will feed upon grass as well as upon Akornes and he cited the Book of 37 H. 6. saith that Seisin to maintain an Assise ought not to be of a contrary nature to the thing of which seisin is intended to be given but in one case only and that is where the Sheriff gives seisin of a Rent by a Twig or by a Clod of Earth and this is in case of necessity for the Sheriff cannot take the Money out of the purse of the Tenant of the Land and deliver seisin of that and for that he cited the case in 45 Ed. 3. Where Commoner comes to the Land where he ought to have Common and enters into the Land and the Lord of the Waste or the Grantor of the Common outs him he cannot have an Assise of his Common upon this outing for this was not any seisin of the Common so it is in this case the Horses cannot take Seisin of the Paunage and so there is no seisin or disseisin found by the Jury and then no Assise and this being after Judgment no abridgment may be of the Plaint and so for these last reasons he reversed the Judgment And at another day the case was rehearsed again and argued by Yelverton and Fenner Justices but I did not hear their Arguments insomuch that they spake so low but their opinions were declared by the cheife Justice and Yelverton affirmed the Judgment in all First he held that this entry shall not abate the writ Secondly admit that it is abated yet being between Verdict and Judgment shall not be assigned for errour Thirdly he held that no principall challenge Fourthly he held both the grants good Fifthly that Clepsam and Clipsam are all one and not such variance that shall make Errour And lastly that a Horse may well take Seisin of Paunage and Fenner agreed in all but he held that this was a principall challenge and not being allowed this
one and his Heires Males this is void for uncertainty of the Estate then it is so averred in our case if there be not sufficient recitall and certainty and to the recitall that is good without question for she recites that she hath granted that to Markham for ifâ and Markham is yet alive and so the recitall good Then for the certainty he said that the rule is that if the certainty be declared by expresse words or if the King may reduce that to a certainty the Grant of the King shall not be defeated and for that he cited the case of Information of Mines Comment But if the King grant to me all Mines in the Land of J. S. There I shall have all Mines Royall for the Law saith the King cannot have other Mynes in the Soil of a Subject but Mines Royall and so there the Law supplies the Grant so that they be Mines Royall though not expressed in the Grant in certaine so he said in the principall case that the Queen hath expresly recited that she hath granted the Herbage and Paunage for life to Markham and that Markham was yet alive and after grants that to the Earle of Rutland and doth not say when that shall begin the Law saith that shall begin after the death of Markham for before that it cannot begin But if the Queen had exprest in the Letters Patents that this shall begin forthwith then this had been void as the Lord Gaudy said in Altonwoods Case 1 Coke fol. 51. And so he concluded the Title of the Earle of Rutland good So he affirmed the Judgement in all But Williams was very peremtory for the conceit of Paunage that it was not good Seisin But after Crooke Justice recanted his opinion of that and insomuch that there were three which concluded for the reversing of the Judgement And yet for every point there were three against two It was doubted if this Judgement should be reversed or not And they said that they would advise with the rest of the Judges and after that it was moved againe by Serjeant Nicholls in the next Trinity Tearme and Yelverton and the cheife Justices would have the Judgement affirmed but Williams Fenner and Crooke to be reversed and note well this President where Judgement was reversed and yet for every point there were three Contra two or foure Contra one see the first Judgement in the Common Bench Michaelmasse 6. Jacobi afterwards Termino Pasche 7. Jacobi 1609. In the Kings Bench. Trinity Colledge Case THE Case was this King Henry the eight Incorporated the Schollers of Trinity Colledge in Cambridge by the name of Masters Fellowes and Schollers Collegij Sanctae et Individuae Trinitatis in the Town and University of Cambridge and in the 6. Ed. 6. They made a Lease by the name of Master and Fellowes of Trinity Colledge in Cambridge leaving out the University And if this Lease were good or not was the question And Yelverton argued that this was not a good Lease and that for the misnaming of the Corporation And to that he said to every Corporation two things were incident That is name and place and if any of those fayl and be not certainly recited in a Lease the Lease shall not be good And he conceived that this Corporation is founded upon two places and that one of them That is the University is left out and for that cause the Lease is nothing worth for if a Corporation hath two names one of them cannot be omitted as it is in the first of Mary Dyer 96 97. and 4. Mary 140. and 150. 11. Eliz. Dyer 278. 35. H. 6. 5. and 6. No more then when it consists of two places one of them may be left out And for that if they had been incorporated by the name of Master and Fellowes of Trinity Colledge in Norfolke and Suffolke in a Lease they could not leave out Norfolke or Suffolke but both the places ought to be incerted And by him in the principall case if the Lease had been made by the name of the Master and Fellowes of Trinity Colledge in the Town and leave out the University of Cambridge without question this shall be void so here this being impliedly omitted shall be as strong as if it had been by expresse words excluded so in the making of every Corporation the intent of the Founder is to be considered and for that it seemes the intent of the King in placing that in both places was first to erect a Colledge and that to grace the Town and then he hath placed them in the University and this was for the instruction in good Arts and Learning and so for these benefits they have of both these places nor one nor the other may be left out And if the King had been incorporated by the name of Master and Fellowes of Trinity Colledge in Cambridge and in the Market place of Cambridge There though that the Market place was parcell of the Town of Cambridge yet it seemes to him that this cannot be left out for peradventure the Founder hath a speciall reason to place that there that is to have all things necessary for them more neer unto them Also where any stranger demands any possession of them in Precipe Quod Reddat or such like he ought to ensue them certainly and precisely Then a Fortiore where they depart with their possessions by their own Act there they shall not be unknowing of their one names And Walter of the inner Temple argued to the contrary and he conceived that the Lease is good and first he argued the ground which hath been taken of the other part that is that every corporation ought to be in a certain place and he conceived that there is a certaine place in this place that is the Town of Cambridge And to that that is said that this Corporation is founded upon two places he denied that all together for no more then one materiall Body may be but in one place Simul and Semel no more may it be in a Body Corporate which hath allwaies his resemblance to a Body naturall and for that he denied the case which hath been put of the other part of Norfolk and Suffolk And he cyted the opinion of the Lord Popham in Buttons Case in which the Lord North was Interested that a Corporation cannot be limited to a County as Probos Homines of such a County or Trinity Colledge in such a County but it ought to be restrained to some certaine place or one County or a Town But admit that the Corporation may be founded upon two places yet he faith that a University is not Locall but Personall And to this purpose he cyted two Records one in 48 H. 3. Which was this King H. 3. Intending to keep a Parliament at Oxford and knowing that the place was not sufficient to contain all those which should be there assembled and the Schollers together sent his Writ which was directed to the
Subject may do it but till he be delivered by due course of Law for the commitment is not absolute but the cause of that is traversable and for that ought to justifie for speciall cause for if the Bishop returnes that he refuses a Clark for that he is Schismaticus Inveteratus this is not good but they ought to returne the particuler matter So that the Court may adjudge of that Though it be a matter of Divinity and out of their Science yet they by conference may be informed of it and so of physick And they cannot make any new Laws but such only which are for the better government of the old and also he said plainly that it appeares by the Statute of 1. Marie That the former Statutes shall not be taken by equity for by these the President and Commons have power to commit a Delinquent to Prison and this shall be intended if they shall be taken by equity that every Goaler ought to receive him which is so committed But when it is provided by 1. Marie specially that every Goaler shall receive such offenders That by this appeares that the former statute shall not be taken by equity And so he concluded that Judgement shall be entred for the Plaintiff which was done accordingly Trinity 7. Jacobi 1609. In the Common Bench. IN Debt upon escape brought by John Guy an Attorney of the Common Bench by an Attachment of priviledge against Sir George Reynell Kt. Deputy Marshall of the Prison of the Kings Bench the Defendant pleads his priviledge that is that he was Deputy Marshall and he ought not to be sued in other Court then in the Kings Bench according to the ancient Custome and Jurisdiction of the sayd Court upon which the Plaintiff demurred and upon argument of both parties it was adjudged that the Defendant should not have his Priviledge and the principall reason was for that the Plaintiff was an Attorney and ought to have his priviledge in the Common Bench and for that that this Court was first possessed of the Suit it shall not be stayed because of the Priviledge of the Defendant in another Court see 9 Ed. 4. 53. the last case where it is agreed that one of the Courts may send Supersedeas to another for there it is agreed that if an Accountant in the Exchequer be sued in the Common Bench he shall send Supersedeas to them to surcease and if he be sued in the Kings Bench these of the Exchequer will shew the Record that he is accountable for they cannot make Supersedeas to the King and the Plea is there held Coram Rege c. And he shall be dismissed for he may be sued in the Exchequer and also 10 Ed. 4. 4. b. It appears that if one which hath cause to have priviledge in the Common Bench sue an Attachment as our case is against a Clark of the Kings Bench such Writ shall not be allowed for that that the Common Bench was first seised of the Plea by their Plea and the Priviledge of the common Bench is as ancient as the Priviledge of the Kings Bench and one Court is as ancient as the other for every of them is before time of memory and it is by prescription Walmesley sayd that the Possessory shall be preferred Quia melior est conditio possidentis but he agreed that if the priviledge of one Court be not so ancient as the other then the most ancient shall be preferred and it was agreed that though there be Difference in respect of parties or though that the attendance of one be of more necessity then the other as it was objected in this Case that the Defendant ought to attend otherwise he shall loose his office to that it was answered and resolved that the cause of the Suit in the Common Bench was voluntary and the attendance of the Attorney or Clark more necessary then of the Defendant for hee may exercise his Office by a Deputy but a Clark or an Attorney cannot for their office is Opus Laboris But the Office of the Defendant is only Opus Labrum and he is to deal with Gyves and Irons and such like so that in this Case the Office and place of a Clark or Attorney is to be preferred before the Office of Marshall but admitting that one Inferiour Officer of the Common Bench which is to have his priviledge sue a superiour Officer of the Kings Bench which is also to have his Priviledge there this shall not make any difference And so was the opinion of all the Court and upon this Judgment was given that the Defendant should answer over Trinity 7. Jacobi 1609. in the Common Bench. IN Assise between William Parson alias Chester Plaintiff against Thomas Knight alias Rouge Cross tenant for the office of one of the Heraulds called Chester the Recognitors of the Assise had view at a Funerall at Westminster where the Officer ought to attend and it was objected that this was no good view for it was not in any place certain where the Recognitors may put the Demandant in Possession and the Disseisin was alledged to be at Westminster at the sayd Funerall and it seems that the view was good but admitting that it were not good It seemes to Coke cheif Justice that the Assise in this case well lies without view for the Office is universall as the Office of the Clark of the Market and an Assise for Tithes and the Office of the Tennis Court these are universall and not annexed to any place and for that an Assise wel lies for them without view but for an Office in the Common Bench view may well be made in the Court for the Court is alwaies held in a certain place but for an Office in the Kings Bench Quere Inquit Coke for this ought to follow the Court of the King by the Statute of Articuli Cleri Chapter 3. But Walmesley Justice that this Court cannot be sitting in Clouds but in some place or other and for that the view ought to be here made and then Coke sayd by the same reason the Office of the Herauld cannot be exercised in the Clouds but at Funeralls and by this the view ought to be made there also but the Opinion of all the Court was that the view was well made the Tenant in Assise also challenged diverse of the Recognitors for that they were of a former Jury upon the same question and this was agreed to be a principall cause of challenge but the Court would not allow of that without shewing the Record but allowed that to be a cause of challenge for favour and for that they were tryed by their Companions being sworn to speak the Truth and they were found to be indifferent and for Seisin for the Demandant in the Assise it was shewed that diverse Fees were due to the sayd Office as seven pound for every day that he attended upon the Kings person and for the Dubbing of
against three Executors two of them are out lawed and the third pleads and Verdict against him and it was resolved that the Judgement shall be against all by the Statute of 9. Ed. 3. for they all are but one Executor and the Cost shall be against him which pleades if the others confesse or suffer Judgement by default And there shall be but one Judgement and not diverse see 17 Ed. 3. 45. b. 11 H. 6. Upon a Venire Facias awarded the Sheriff returnes but 21. and the Habeas Corpora was against 21. only and this was also returned and upon that ten appeared and upon this Tales was awarded and triall had and but ten of the principall Pannell sworne And this was Error but if twelve of the principall Pannell had appeared and served it seemes that it shall not be error for so it was resolved in Graduers case where twenty three were returned but twelve appeared and tryed the Issue and this was resolved to be good and no error Michaelmasse 7 Jacobi 1609. In the common Bench. Buckmer against Sawyer A Man seised of Land in Gaelvelkind hath Issue three Daughters that is A. B. and C. deviseth all his Land to A. in tayl the remainder of one halfe to B. in tayl the remainder of the other halfe to C. in tayl and if B. died without Issue the remainder of her Moytie to C. and her Heires and if C. died without Issue the remainder of her Moytie to B. and her Heires the Devisor dies A. and B. dies And the question was if C. shall have a Formedon in remainder only or severall Formedons for this Land And it seemed to all the Justices that one Formedon lieth well for all for that that it was by one selfe same conveiance though that the Estate come by severall deaths and this Action was to be brought by the Heire of C. after the death of C. See the three and four Phil. and Mary Dyer Note that after appearance of a Jury and after that divers of them were sworn others were challenged so that it could not be taken by reason of default of Jurors But a new Distringas awarded and at the day of the returne of that these which were sworn before appeared and then were challenged But no challenge shall be allowed for that that they were sworn before if it be not of after time to the first appearance Michaelmasse 7. Jacobi 1609 In the Common Bench. Baylie against Sir Henry Clare BAYLIE against Sir Henry Clare the Writ was of two parts without saying in three parts to be divided And it seemed to Nicholls Serjeant which moved this that it was not good but error But the opinion of the Court was that it was good See 17. Ed. 3. 44. 19. Ed. 3 breife 244. 17. Assise with this difference that if there are but three parts and two are demanded there it is good without saying in three parts to be devided for when parts are demanded it is intended all the parts but one and that it is only one which remaines see the Register fol. 16. 12. Assise And it was adjudged in the Kings Bench in the case of one Jordan that demand of two parts where there are but three parts is good see 39. H. 6. Salford against Hurlston in Formedon which demanded two parts where there is but three and so of three parts where there is but four it is good without saying in three or four parts to be divided But if a man grant his part this shall be intended the halfe for Appellatio partis dimidium partis contenetur and a Writ of Covenant ought to be of two parts without saying in three parts to be divided for so is the forme and if in such case in three parts to be divided be incerted the Writ shall abate see Thelwell in his digest of Writs 146. and by Coke if a man bring Ejectione Firme for ten Acres and by evidence it appeares that he hath but the halfe Ex vigore Juris it shall not be good but he said he would submit his opinion to the Judgement of ancient Judges of the Law which have often time used the contrary Note that the Husband may avoid his Deed that he hath Sealed by the duresse of Imprisonment of his Wife or Son But not of his Servant and so Mayor and Commonalty may avoid a Deed sealed by duresse of Imprisonment of the Mayor for it is Idemptity of person between the Husband and the Wife See 21. Ed. 4. and 7. Ed. 4. A man may avoid Seâsin for payment of Rent by coersion of distresse but not his Deed. Michaelmasse 7. Jacobi 1609. In the Common Bench. Payn and Mutton IN an Action upon the case by Payne against Mutton the Plaintif counts that the Defendant called him Sorcerer and Inchantor And agreed by all the Justices that Action doth not lie for Sorcerer and Inchantor are those which deale with charmes or turning of Bookes as Virgill saith Carminibus Circes socios mutavit ulissis which is intended Charmes and Inchantments and Conjuration is of Con et nico that is to compell the Divell to appeare as it seemes to them against his will but which is that to which the Devill appeares voluntarily and that is a more greater offence then Sorcery or Inchantment which was adjudged that Action doth not lie for calling a man Witch and said that he bewitched his Weare that he could not take any Fishes Dodridge the Kings Serjeant saith that an Action lieth for calling a woman gouty pockye Whore and said that the Pox had eaten the bottome of her Belly out and so it was adjudged that it lieth well for these words get thee home to thy pokey Wife the Pox hath eaten off her Nose But for the Pox generally Action doth not lie But if he saiâh that he was laid of the Pox then Action well lieth for then it shall be intended the great Pox. Note that in Prohibition and Replevin the Defendant may have nisi prius by Proviso without default of the Defendant for he himselfe is re vera Defendant and there are two Actors that is the Plaintiff and Defendant But the Court appointed that Presidents should be searched the Plaintiff is not bound to prosecute Cum Effectu in this Court as he is in the Kings Bench And it was agreed that the manner of Pleading was agreement as for Returno Habendo in the Replevin and Pro consultatione habenda in the Prohibition Michaelmas 7. Jacobi 1609. In the Common Bench Miller and Francis MYLLER Plaintiff in Replevin against Thomas Francis the case was Richard Francis was seised of Land held in Socage and deviseth that to John his eldest Son for a hundred yeares the Remainder to Thomas his second Sonn for his life and made his four other youngest Sonns his Executors and after made a Feoffment to the sayd uses the Remainder to the sayd John his eldest Son in tayl
in Prison and agreed that if 2 Precipes are contained in one Originall there shall be but one satisfaction But if one be taken by Capias and remains in Execution Capias shall be awarded against the other and he shall remain in Prison till satisfaction be had for execution is no satisfaction as it is said in 29 H. 8. b. Execution 132. adjudged See 4 Ed. 4. 38. 5 Ed. 4. 4 H. 7. 8. And Hillaries case 33 H. 6. And to the third that is that the Debt remains after the taking of the body in execution and agreed that when execution is made of goods or lands no Debt remains but otherwise it is of execution of the Body as it appears by 29 H. 8. before cyted B. Execution 132. and 41 Assis 15. where a man was condemned in Damages in Trespass and committed to Prison by Capias and escaped the Gaoler dyed the Plaintiff prayed debt against his Executors and could not have it for they are not charged without specialty and the Plaintiff alleadged that the Defendant was vagrant in the County of M. and prays Capias to the Sheriff of M. to take him and it was granted for his remedy against the Sheriff was determined and this proves also that the Debt remains after escape scire facias is licet Judicium redditum sit tamen executio restat ad huc facienda de debito for the body is but as a pledg the form of the Writ in the Register Capias ad satisfaciendum and not in satisfaction which proves that there is no satisfaction but upon the payment of the money his body shall be delivered out of Prison this is execution with satisfaction for there are two Executions that is Medius finalis the first is the Capias the second Satisfaction which is Vltimus Finis And it is a good rule quod nihil videtur factum ubi aliquid restat faciendum and here is aliquid faciendum that is Satisfaction for in all acts there is a beginning progression and consummation Consummation in this case fails Mors est horendum divortium which is the act of God And when the act of God hath delivered him which lyes in prison for his own default it is no reason that the Plaintiff should be prejudiced 43 Ed. 3. 27. A man enfeoffs the Father with Warranty which infeoffs an estranger which enfeoffs the son the father dyes the son may vouch for it is the act of God And to the Mischiefs nec crudelis creditor nec delicatus debitor sunt audiendi for they play at Bowls and keep Hospitality in the Prison Or if a man be arrested and makes a tumult and is slain in indeavouring to break the Prison and breaks his Neck it is no reason that he by such act should defraud the Plaintiff of his Debt the opinions against him are coupled with absurdities as 7 H. 6. 8. Martins opinions is also imparted with absurdity 33 H. 6. 48. The opinion of Lacon is also coupled with another absurdity and 22 Assis b. Execution is also coupled with absurdity that is if the Defendant escape this determines the debt and is satisfaction and 15 Edw. 3. Quare Impedit 174. in Writ of Right of Advowson the Plaintiff hath Judgment and habere facias sesinam in the life time of the Incumbent and after his death sues Scire Facias the first is Execution but not with satisfaction and the last is satisfaction for by this he hath the fruit of his Judgment So 19 Ed. 3. Execution 12. a younger statute is extended and Liberate sued executed and returned And after an elder statute is extended and after satisfaction of that he that hath the youngest may sue Scire Facias and have execution of the youngest So of Beasts distrained and put into the Pound and there dye he which distrayned may distrayâ again for this is no satisfaction of his Rent 14. H. 4. 4. 15 Edw. 4. 10. 11 Eliz. Dyer 280 And so Capias ad computandum is not Accompt nor Capias ad acquietandum Acquital Register 30. 39. 285. And it is said in Bract. lib. 7. Chap. 17. Sunt brevia Magistralia fârmata the first are made by Masters of the Chancery the others which are Originall by Cursitors which are founded by acts of Parliament and cannot be changed without Parliament and as Fitzherbert in his Preface to his Na. Bre. saith that every Art and Science hath certain Rules and Foundations to which a man ought to give faith credence and the Writ of Fieri facias being founded upon a Statute and the form that executio adhuc restat facienda he saith that this was the Judgment of the Parliament that the first Execution was not Satisfaction But as the Writ is also in the Register 245 That where a man is condemned in Trespasse and committed to prison detinendum quousque he satisfie the party by this it appears that he is but a pledge And Fitz. Na. Bre. 63. 65. 67. and Register If a man be taken by Capias Excommunicatum ad satisfaciendum parendum Clavibus Ecclesiae and is delivered by Writ which issues improvide another Writ of Capias shall be awarded And to the matter of Election he agreed that if Elegit were awarded the party cannot have Fieri facias nor Capias for there is Entry made quod Elegit sibi executionem de meditate But when Fieri facias or Capias is awarded no entry at all is made But if any of them are returned executed then he cannot resort to another Processe and with this difference agrees all the Books of 15 H. 7. 15. 21 H. 7. 19. 30 Ed. 3. 24. 31 Edw. â3 Process 52. 19 H. 6. 4. 34 H. 6. 20. 45 Edw. 3. 19. 50 Edw. 3. 4. and 5. 18 Edw. 4. 11. 20 Edw. 4. 13. 11 Eliz. Dyer 296. And to the case of Williams and Cuttrys cyted to be adjudged 43 Eliz. the which he cyted as Lambs case he said in this was many apparent Errors in forme of pleading so that the matter in Law cannot come to Judgment 35 H. 6. Prisot seemed that by the law of God the Imprisonment of the body of a man was no satisfaction for by that the Creditor may sell his Debtor and his Children for the payment of his Debts Matth. chap. 18 vers 24. 4 Kings 4 Chap. vers 1. Matth. chap. 5. Luke chap. 12. And so he agreed with Foster in opinion and concluded that the death of the Defendant in the action of Debt was no satisfaction nor determination of the Processe nor of the election But that the Plaintiff may have new Execution against the Executors and by consequence that Judgment shall be given for the Plaintiff in the Scire facias but no Judgment was given for that there was equality of opinions that is Coke and Foster against Walmesley and Warburton Danyel being dead and for that it was adjourned Pasche 8. Jacobi 1610. See Hillary 7. Jacobi the beginning Chalke