profits have accrued to them or any of them by the making of Allome since the making of the said Indenture wherupon the Plaintiff demur 1. And Iudgment was given for the Plaintiff for it is one good Grant of an Annuity to charge their persons And so of a Grant of an Annuity to be paid out of such Coffers or Bags vide 9 H. 6. Margery Parkers case vide 22 H. 6. 12. 2. Also the limitation is to perceive of the clear gaines and plead it by the Counter-part of the Indenture and that ought not to be but they should have demanded Oyer of the Deed and then either demur or plead that the same Deed was granted over c. 3. It is not averred that no other person received or made any clear gain but only that the Defendant made no clear gain Burglary MEmorand At the Assises holden at Winchester in the last Circuite before the Lord chief Baron Tanfield it being the third Circuite which I went with him It was a question whether one which had a Shop in the dwelling house of another and he which had the Shop work'd therin in the day but never lodged there and yet he had a house out of the Shop to the Street if this Shop be broken in the night and divers Goods stoln out therof if it be Burglary Burglary And the Lord chief Baron and I resolved that it was no Burglary because that by the severance therof by Lease to him which had it as a Shop and his not inhabiting therin it was not any Mansion house or dwelling house ergo no Burglary but ordinary Felony Mich. 15 Jac. Adavis versus Flemming Case AN action of the Case was brought for these words Thou hast forsworn thy self before the Councell in the Marches innuendo in the Marches of Wales in a Suit which I have there and I will sue thee for Perjury Words And after issue of Not guilty pleaded and Verdict for the Plaintiff It was moved in Arrest of Iudgment by Chibborn that the Common Law takes no notice of any such Councels and they are to meddle according to instructions and if it be not warranted therby then no Oath wherupon any remedy And therfore it was adjudged that if one say another is forsworn or perjured in Canterbury Court no action lies for we cannot take any notice of any Court in Canterbury which hath power to administer an Oath But Serjeant Harris said that this Councell of the Marches is established by 27 H 8 cap 32. and have power to examine Witnesses and to administer an Oath and is also mentioned in the Statute 5 Eliz. that Perjury committed before the Councellors of the Marches shall be punished by this Statute And the Court was of opinion that the action well lies for the Councell of Marches without innuendo is sufficient for there is no other Councell of Marches And as the Court take notice of the Court of requests for if one saies another is perjured there it is actionable so of this Court which is established by Statute and concern the King and therof the Iudges ought to take notice Iudgment for the Plaintiff And by Lord Hobart if one saies another is forsworn in the Common place an action lies Mich. 17 Jac. Bayshaw versus Walker Case AN action of the case was brought for saying Thou art a filtching Fellow and didst filtch four pounds from me And after Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words were not actionable And so the Court resolved for the word siltching is dubious and may be by Cousenage by shifting by deceit and is not Felony but by Implication and it is not good to enlarge actions for words Plaintiff Nil capiat per breve Green versus Harrington Case Assumpsit lies not for Rent PEter Green brought an action upon the case against Thomas Harrington and counts that wheras the Defendant such a day was indebted to him in ten pounds for the rent of one House and land which he had demised to him for one year then past the Defendant promised to pay it upon request and upon issue Non Assumpsit it was found for the Plaintiff and moved in Arrest of Iudgment by Chibborn that no action lies upon this promise because it is Debt for the rent for Land and the Assumpsit is of a lesse nature as if one he indebted upon an Obligation and that being forfeited he promised to pay it no action lies for the Debt is due upon the Obligation Albanies case And the opinion of the Court accorded This was ruled in Albanies case of Lincolnâ— Inne in Banco Regis Trin. 17 Jac. Rot. 1849. Castilion versus Smith AN action of Covenant was brought by Sir Edward Castilion against Thomas Smith as Executor Covenant Iudment against Executors for Covenant broken by them shall be De bonis testatoris Iohnson and Barker a breach assigned by act done by the Executors and after Verdict it was moved if Iudgment should be De bonis propriis by reason the breach was made by the Executors And it was resolved that it should be de bonis testatoris And where the Writ is in the Detinet only there the Iudgment shall be de bonis testatoris vide the like Iudgment Hil. 33 Eliz. Rot 1143. between Johnson and Barker Pies Case PIe exhibited an Information upon the Statute of the 35 of Eliz. for converting of a house in London into many dwelling houses and upon Not guilty pleaded the Defendant is found guilty But be cause the said Statute is discontinued by the 43 Eliz Costs against an Informer and there is now no such Statute the Court upon motion in Arrest of Iudgment award that the Defendant eat inde sine die And whether the Defendant in this case shall have costs upon the Statute of 18 Eliz. cap. 5. was the question The words of the Statute are if any Informer willingly delay his Suit or discontinue or be non-suited or shall have the matter or the tryall passe against him by Verdict or Iudgment in Law he shal pay costs 1. Object It was objected that this Statute doth not extend but only to penall Statutes which then were in Esse Answ To which it was answered by the Court that this Statute was a perpetuall direction to all Informers 2. Object It was objected that if there be no Statute then there is no Informer 3. Object In this case Verdict is sound for the Informer and he may be presumed to be ignorant And there is no reason that he shall pay costs for default of his Councell 4. Object There is no Iudgment against him but that the Defendant eat inde sine die and that is no other then an exception in stay of Iudgment Keldridges case And a President was cited by Henden 25 Eliz. Banco Regis there upon an Information against Keldridge and another upon the Statute of 35 H. 8. for not
are not Affirmative or Positive but a supposition only as if he had said Nowels case I will indite him for such a matter it was vouched to be adjudged 51 Eliz. in Nowels case that to say of an Attornaâ—â— That he was Cooped for forging Writs maintain an action And 14 Eliz. He is infected of the Robbery and he smelleth of the Robbary adjudged actionable In balls case There is never a Purse cut in Northamptonshire but Ball hath a part of it will not bear action But the Court would not declare their opinion Quia sub spe Concordiae Griggs Case GRigg which is the Examiner at Chester preferred there this Bill in the Chancery vocat the Exchequer Prohibition â—i Chester against one which inhabite within the same County and another which inhabite in London being executors to one to whom the said Grigg was indebted by Obligation which Obligation was put in suit in the Court of Common Pleas and there proceed to processe before the Bill exhibited and the Bill concern equity of an Agreement that the Testator had promised that one Robert Grigg should assign a lease of Tithes to the Plaintiff in consideration of his entry into the said Obligation and if he could not procure it that then the Obligation should not be prejudiciall to him and he which was distributing in Chester answered therto And an Order was made by Sir Thomas Ireland Vice-Chamberlain that Processe should be awarded to him which dwelleth in London And an Inquisition was granted to stay the proceedings at Common Law And afterwards upon the motion of Serjeant Hitcharâ— Sir Thomas Ireland was in Court and shew all that he could to maintain the Iurisdiction viz. That the Contract was made in the County Palatine and that the priviledge pursued the Plaintiff and ipse qui est reus non potest eligere c. Yet it was resembled to ancient Demesn and Guildable And by Lord Hobart he which inhabit at Doveâ— by this way may be inforced to come and answer to a Bill in Chester which would be infinite trouble and the matter is transitory And it was resolved that the Court of Chester had not power in this case but it belonged to the Chancery of England And a Prohibition was granted Hil. 20 Jac. ONe case was in the Kings Bench viz. Trespasse Baron and Feme brought in action of Trespasse Quare clausum fregit Trespasse by Baron and Feme for breaking the Close of the Baron for the Battery of the Wife and for Battery of the Feme the Defendant pleaded a License to enter into the Close made by the Baron and not guilty as to the Battery And the Court was moved in Arrest of Iudgment because the Husband and Writ could not ioyn for the weaking of the Close of the Baron the Writ shall abate for all But the Lord chief Iustice and Iustice Dodderidge were of opinion that the Plaintiff should have Iudgment And it seems that the Law is clear accordingly vide 9 E 4. 51. Trespasse by the Husband and Wife for the Battery of them both the Iury found so much for the Battery of the Husband and so much for the Battery of the Wife and so Damages assessed severally because the Wife could not soon with the Husband in an action for the Battery of the Husband for that part the Writ shall abate and for the Battery of the Wife they shall recover for for that they ought or joyn in an action vide 46 E 3. 3. Baron and Feme brought Trespasse for the Battery and Imprisonment of the Wife and the Writ was ad damnum ipsorum and yet good vide 9 H 7. in the case of Rescous and 22 E 4. 4. there is a good diversity when the Writ is falsified by the shewing of the party himself and when it is found by Verdict And Iustice Haughton and Iustice Chamberlain were of opinion that the Writ should abate for it is apparent that as to the Trespasse Quare clausum fregit the Wife had no cause of action But this case being debated at Serjeants Inn in Chancery Lane at the Table the Lord chief Baron was of opinion that Plaintiff should have Iudgment for that part and he held the Writ good in part and Reddenda singula singulie Meâ—enest issint as it seems no more then in the case of 9 E 4. for there the Writ shall avate for part And if an action of forgery of Deeds be brought against two for forging and publishing and found that one forged and the other published the Plaintiff shall have Iudgment Howell versus Auger Trespasse IN an action of Trespasse brought by Noy Howell against Auger for breaking of a house and five acres of Land in Fresham upon Non Culp pleaded the Iury gave a speciall Verdict Devise of a Fee after a Fee Robert Howell seised of the Land in Question and of other Land by his Will in writing devised this Land to Dorothy his Wife for life and devised this Land to Thomas Howell his younger Son to him and his Heirs in Fee under the Condition which shall be afterwards declared And the other Land was also devised to Dorothy for life and to the Plaintiff and his Heirs in Fee under the Condition hereafter limited If Dorothy died before the Legacies paid then he will that they shall be paid by Noy and Thomas his Sons portion-like out of the Houses and Lands given them And if either of my Sons dye before they enter or before the Legacies paid or before either of them enter Then I will that the longer liver shall enjoy both parts to him and his Heirs And if both dye before they enter then his Executors or one of them to pay the Legacies and to take the profits till they be paid and a year after and made Dorothy his Wife and Christopher Roys his Executors and died Dorothy entred the Plaintiff Noy by his Deed In 33 Eliz. in the life of Dorothy released to Thomas all his right c. with Warranty Release of Lands devised before they be vested Thomas by his Will devised the Land for which the action is brought to Agnes his Wife and died in the life of Dorothy and before Legacies paid Dorothy died and Agnes entred and took to Husband Henry Ayleyard who leased to the Defendant upon whom Noy entred and the Defendant re-entred And Si super totam Materiam c. And this Case was well argued at Bar in two Terms and the first question was If this Devise of a Fes after a Limitation be good or not much was said for it and they relyed upon a case which was adjudged in the Kings Bench between Pell and Brown of such a limitable Fee Pell and Brown And many Cases put that this operate as a future Devise Executory as well as one may by his Will Devise that if his Son and Heir dye before he marry or before that he come to the age of
Demandant proceeds with the Issue And at the Nisi prius the Tenant relying upon the Non-suit it appeared not by whom the Petit Cape is awarded And now upon motion by Serjeant Henden who relyed upon the Non-suit and that the Essoin was allowable by the Statute of Westminster 2. post exitum habeat unicam Essoniam but it was ruled and the Prothonatories all said that it had been the constant use that no Essoins are allowed in Dower which is festinum remedium vide Stat. 12 E 2. cap 1. hath tolled the Essoin of the Service of the King in many cases and given to the Demandant in many cases power ad callumpniand Essoniam And the words of the Statute are Non jacet in breve de dote quia videtur deceptio prorogatio juris vide Dyer 324. There after the Issue joyned Essoin at the day of the Venire facias though no Venire facas be sued out but only awarded upon the Roll. Mich. 21 Jac. Linleys Case An Information against an under Sheriff for taking of 30 s for making of a Warrant upon a Capias ad satisfaciendum AN Information was exhibited against Linley under Sheriff to Sir Gny Palmes Sheriff of York vpon the Statute 32 H 6 and it was shewn that he being under Sheriff a Capias ad satisfaciendum was delivered to him to Arrest one Francis Lancaster upon a Iudgment for a hundred and three pounds The Defendant Colore officii took of the Plaintiff thirty shillings for making of a Warrant upon this Writ against the form of the Statute wherby he hath forfeited forty pounds Vpon not guilty pleaded and Verdict against the Defendant it was alledged in arrest of Iudgment that the making of a Warrant upon a Capias ad satisfaciendum which is for Execution is not within the Statute because the Statute speaks first of Fees to be taken upon the Arrest of the party when he is bailed viz. twenty pence to the Sheriff and four pence to the Baily then appoints that the Sheriff lets to Bail every one that is taken upon Bill or Plaint besides them which are taken for execution Outlawry c. and then comes the clause That nothing shall be taken for making of any Precept or Warrant but four pence and provision for the Obligation Condition and Fee and that all Obligations taken by any Sheriff Colore officii that these shall be void and that for every offence committed against the Statute he shall forfeit forty pounds The Lord Hobart inclined that this making of the Warrant upon the Capias ad satisfaciendum and the taking of thirty shillings is within this Statute and he resembled it to Dive and Maninghams case in Plowden where an Obligation taken of one in Execution is void by this Statute vide that the clause in this Statute for the Obligation is absolute without any restraint but that all obligations taken by colour of his Office with any other Conditions are made void This taking of thirty shillings for making of a Warrant upon a Capias ad satisfaciendum is extortion at the Common Law for which he may be indited but whether it be within this Statute or no is doubtfull Another Exception was taken to this Information That it doth not appear by this that this Writ of Capias was directed to the Sheriff of York or to any other Sheriff And then admitting this to be a Capias ad satisfaciendum directed to the Sheriff of Lincoln and it is delivered by an ignorant hand to the Sheriff of York to make a Precept therupon and he makes a Precept and takes thirty shillings this is not within the Statute also Colore officii will not serve for it is generall and it ought to be shewn that it was a Capias and to whom it was directed And although that all Processe should be generally directed to the Sheriff yet some may be to the Coroners or some by the mis-prision of the Clerks may be omitted as Jacobus Dei gratia c. tibi precipimus and say not Vice-Comiti Eboracensi salutem And an Information ought to be certain to all common intents and it is like to an Indictment And in an action upon the case against an Attorney because that he Corruptive and in deceit of the Plaintiff and in his name had acknowledged satisfaction to his damage and saies not wheras Revera non fuit satisfactus that is not good And the Court was of opinion for this cause that the Plaintiff should not have his Iudgment Bickner versus Wright AN action upon the case was brought by Richard Bickner against John Wright Case Prescription for the making of a Cony-borough in damage of his Common The Plaintiff prescribe to have Common omni tempore anni and saies not Quolibet anno And after Verdict adjudged good Trin. 22 Jac. Goldenham versus Some GGoldenham brought a Writ of Dower against John Some Dower Judgment in Dower upon Voucher who vouched the Heir of the Husband who entred into the Warranty and said that he had no Assets The Demandant had Iudgment for her Dower because nothing is said to the contrary against the Tenant with a Cesset executio untill the Warranty be determined And the Tenant which vouched when the tryall was at Assises made default but it was said that it should be the default of the Vouchee for he was dead before the Assises And now it was moved that the Demandant might have execution And by Henden it was said that the Voucher is not determined for he might vouch the Heir of the Vouchee But it seemed that the Voucher was determined and that he shall have the benefit of his Warranty by Scire facias out of the Iudgment but the Court doubted if the Plaintiff shall have Iudgment against the Vouchee conditionally if he had Assets if not against the Tenant or absolutely vide 3 H 6. 17. Dyer 202. there it is conditionall vide Dyer 256. there the Iudgment is against the Tenant upon Vouchee of the Heir in Ward to the King and that presently with a Cesset executio vide 46 E 3. 25. If the Vouchee be Counter-pleaded the Demandant shall have Iudgment presently vide 48 E 3. 5. Br Voucher 38. the Iudgment shall be against the Heir conditionally which is vouched in Dower vide 2 H 4. 8. there upon the Voucher of the Heir which makes default upon the Summons sequatur suo periculo the Iudgment is against the Heir conditionally if not against the Tenant and so Iudgment against one not party to the Suit and which never appeared And in this case the Iudgment against the Tenant with a Cesset executio may be good because that it doth not appear by any of their Pleas but that the Demandant is confessed to have her Dower none of them say that he is ready to render her Dower as the Heir ought when he enter into the Warranty This Term Serjeant Finch moved the case
and prayed Iudgment for he said the ancient Books were many for Iudgment conditionally but some to the contrary viz. when the Heir is vouched within the same County and is within age there Iudgment presently against the Tenant with a Cesset executio And when the Heir enter into the Warranty and is taken to render the Dower there is Iudgment against the Heir and that the Tenant shall hold in peace But he said that Mich Ashburnham against Skinner 38 39 Eliz. Rot. 1208. Mary Ashburnham brought Dower against Skinner who vouched the Heir of the Husband in the same County who presently entred en le garranty and said that he had no Assets there the Iudgment was given presently against the Tenant with a Cesset executio And after the Issue was tryed and found that the Heir had not Assets and the Wife had Execution but it was said that Error was brought therupon yet the Feme continued the Possession Henden said that the Tenant otherwise shall lose the benefit of his Warranty vide 13 H 4. Judgment 241. The Court adjudged this case for the Demandant upon view of the said President of 38 39 Eliz. And as this case is the Demandant upon necessity ought to have Execution because that the Tenant which ought to have the benefit of the Warranty made default And if it was so that the Vouchee was dead the Tenant shall not have any other Voucher for the Dower ought not to suffer delay And likewise when Iudgment is given against the Tenant with a Cesset executio all is one as a conditionall Iudgment against the Tenant for if Assets be found then Quia compertum est c. with Iudgment against the Heir and that the Tenant shall hold in peace It was objected that Iudgment ought to be conditionally at first and not to give one Iudgment against the Tenant and afterwards if Assets be found another Iudgment against the Heir but that is no inconvenience Some say that when such Iudgment is given against the Tenant with a Cesset executio there if Assets be found the Demandant shall not have execution against the Heir but against the Tenant and he shall have ad valentiam Quaere Potter versus Browne Case Words NIcholas Potter brought an action upon the case against Browne for these words spoken of the Plaintiff He is as arrant a Theef as any is in England and he broke up the Plummers Chest with other mens Tools which stood in my Lord of Suffolks house and took money out of it The Defendant pleaded Not guilty and Verdict for the Plaintiff And upon the motion of Henden to Arrest and Richardson to have Iudgment The Court resolved that the Plaintiff should not have Iudgment The first reason is because that there is not any affirmative directly that he is a Theef but as arrant a Theef as any is in England And avers not that there is any Theef in England And the Law will not presume any thing that is evill Iniquum in lege non presumitur And as Lacies case was He is as great a Theef as any is in Warwick Goal He ought to aver that there was a Theef there at the time of the speaking of the words And it is the same reason in this case Then the latter words are ambiguous and admit of a double interpretation and the better shall be taken Querens nil capiat per breve Mich. 22 Jac. Methell versus Peck MEthell brought an action upon the Case against Peck and count Case that the Defendant in consideration that the Plaintiff had paid to one Playford forty pounds to the use of the Defendant Where the request of a collaterall thing shall be alledged and by his appointment he assured upon request to deliver an Obligation in which he and another should be obliged to the Plaintiff in a hundred pounds And that the Defendant Licet saepius postea requisitus did not deliver the said Obligation upon Non assumpsit pleaded Verdict for the Plaintiff And it was moved in Arrest of Iudgment by Hitcharn that the Plaintiff had not alledged any sufficient request by shewing such a day and such a place which is issuable And being collaterall matter the request is part of the substance of the action But where it is upon Debt or Contract and not severed from the duty then a Licet saepius requisitus is sufficient But the Court were of opinion that the Plaintiff shall have Iudgment and yet they agreed the diversity when a Request shall be alledged as part of the thing to be performed and when it is but implyed in the Debt For when it is collaterall there it ought to be alledged and for the time it is sufficient viz. Postea but the place of the Request is omitted And if Issue had been tendred therupon it might be supplyed afterwards where it shall be tryed where the action was brought And Non assumpsit allowes the request as if the Defendant had pleaded concord and satisfaction the Request is not to be proved in Evidence vide 10 H 7. 16. But it is said that this Judgment was reversed in the Kings Bench because that the Request being upon Collaterall matter which was the cause of the Action it is materiall Mich. 22 Jac. Ejectione firmae AN Ejectione firmae brought and counted upon a Lease at Haylesam of Tenements there The Defendant pleads that Haylesam ubi tenementa praedicta jacent is within the Cinque-Ports Ubi breve Domini Regis non currit and plead to the Iurisdiction The Plaintiff reply Town shall be intended al the Town that the Tenements are in the County of Lancaster absque hoc that the Town of Haylesam is within the Cinque-Ports wherupon the Defendant demur and adjudged no cause of demurrer For Haylesam is all Haylesam and the Court will not intend any Fractions in the Town viz. that part shall be in the Cinque-Ports and part without as it was affirmed the truth was but that ought to come upon the shewing of the Defendant an his Bar vide 50 E 3. 5. Sir William Ellinghams case Defend respond oust THE FIRST YEAR OF KING CHARLES Termino Pasch Hitcham versus Brook SIR Robert Hitcham Serjeant at Law and to the King Case brought an action upon the case against one Brook a Iustice of the Peace and which had been Sheriff of Suffolk and count that he for divers years last past had been one of the Kings Serjeants and had demeaned himself well and loyally in the discharge of his duty and had gained good opinion and had acquired by his practice a good Estate for the maintenance of him and his Family The Defendant said Words I doubt not but to prove that the Plaintiff hath spoken Treason Innuendo Treason against the King Verdict was found for the Plaintiff And it was moved in Arrest of Iudgment that these words are not actionable First because no time is alledged
and diversity of opinion which was between the Lord chief Justice and the Lord Hobart the now Lord Keeper and the Lords by an Order respited this matter as to the Fine of the Plaintiff and gave damages to the Defendant and referred it to the opinion of all the Justices And they all una voce except Iustice Harvey who insisted upon the damages given to the party that they should not be pardoned agreed that the Contempt and Offence for the scandalous Bill exhibited was pardoned and not within the Exception for it cannot be intended that the Plaintiff exhibited a Bill upon which he should not be fined but this exception was of that which was laid to the charge of the Defendant and the Defendant may have his remedy at Common Law and the Contempt which is accidentall to the Offence is pardoned and by consequence the Fine Pasch 2 Car. Crane versus Crampton Case CRane brought an action upon the case sur assumpsit against Crampton and count that in consideration of moneys paid the Defendant did assume to give to the Plaintiff a Ruff-band at the day of his marriage And he alledged in facto that such a day and at such a place he was married Notice and that the Defendant notwithstanding that he was requested such a day and a year after the said marriage had not given to the Plaintiff the said Ruff And upon Non assumpsit it was found for the Plaintiff and moved in Arrest of Iudgment that the Plaintiff had not alledged any notice given to the Defendant of his marriage And by the opinion of me and my two Brothers Harvey and Yelverton Iudgment was given for the Plaintiff For the Defendant ought to take notice therof at his perill unlesse he had provided to deliver the Ruff after marriage and after notice therof for if he ought to have notice no place being agreed upon where it shall be given then he should be compelled to enquire and to find him and give notice and paradventure he could never give him notice Also it is agreed if one be obliged to pay to another twenty pounds within three months after he come from Rome there shall no notice be given of his return but the Obligor ought to take notice at his perill And if it were with a Condition that I. S. that is not party to the Obligation shall do such a thing there shall not be notice And this case of an Obligation is more strong for there is a penalty and if it were to pay ten pounds when a Fair shall be at Dale there he ought to take notice And they agreed the case of 8 E 4. fol. _____ an Obligation to perform an Arbitrement there no notice is necessary for it is the act of a third person And if any notice be requisite the Request imply it as it was adjudged in the Kings Bench between Hodges and Baldwin Hodges and Baldwins case But my Brother Crook seemed to be of a contrary opinion for when the duty arise upon the notice there notice ought to be Iudgment pro Querente Laicon versus Barnard Lincoln LAicon Plaintiff against Barnard one of the Attorneys of this Court Case for Trover and Conversion of a hundred Sheep the Defendant said that he brought Debt in the County Court of Lincoln Recovery in trespass for taking of goods is no baâ— to an action upon the case sur trover against one Hacliff for two hundred and eighty pounds upon an Obligation by Iustices and recovered and that these Sheep were delivered to him in Execution as the Sheep of the said Hacliff And that afterwards and before this action the Plaintiff brought an action of Trespasse against the now Defendant for taking of these Sheep Quare caepit abduxit And it was found for the Plaintiff and Damages to two pence And averred that they were the same Sheep and the Plaintiff replyed that the Damages found by the Iury were only for the taking and chasing and not for the value And that this Action was for another Trespasse wherupon the Defendant demurred and it was adjudged for the Plaintiff for for any thing that appears which the Defendant hath confessed upon his Demurrer it is not for the same Trespasse Also the Damages of two pence cannot be given for the value of the Sheep Also the Plaintiff when a Trespasse is done to him may retake his Goods and yet he shall have an action of Trespasse for the taking of them And every taking viz. abduxit import a chasing and no man will say that by the recovery in Trespasse when the Plaintiff had his Goods that therby the Defendant shall have the property But it is true that if the Plaintiff recover the value therby he waves the property and by this way the Defendant shall have the property vide 2 R. 3. 14. 4 H 7. 5. 6 H 7. 8. and Iudgment for the Plaintiff Yelverton at first baesitavit but afterwards agreed Pasch 2 Car. Wades Case AN action upon the case was brought by a Feme Case as Administratrir against the Lady Wade Executrix of Sir William Wade Non assumpsit was pleaded the Venire facias was well but the Hab Corp. Nisi pr. was entred the Plaintiff Where the Nisi prius shall be amended c. and the Defendant Executrix of Sir H Wade c. And it was amended by the Court and there was the difference taken that when the Nisi prius is so mistaken that if it should be amended the Iury should be prejudiced viz. that it may falsifie their Verdict then it shall not be amended but in this case it is but the Writ by which the Iury is warned to appear And the authority of the Iustice of Nisi prius is not by that but by the Juras which was well and as it ought to be Also they have their Authority by the Statute of Westm 2. vide Dyet 106. In Wootons Case there the Jurat was well and omitted in the Nisi prius Anthony Coke Also the Issue was between Wooton and Cooke and Temple where Temple had confessed the action vide there that many omissions of the Record of Nisi prius are to be amended Brown was of the contrary opinion to Walsh Weston and Dyer Trin. 2 Car. Farrington versus Arrundell Entred Hil. 22 Jac. Rot. 4462. Debt AN action of Debt was brought by Lionell Farrington Qui tam pro se quam pro Domino Rege Debt upon a penall Statute is not gone by the death of the King c. against Thomas Arrundell upon the Statute of 23 Eliz. for not coming to Church and the Defendant demurred upon the Count And then King James died And if this action be abated or not by the death of the King was the Question Vide the Statute of the 1 E. 6. cap. 7. vide Coke lib 7. fol 30. And concerning this was diversity of opinion in the Common Bench for my Brother
refusall was within the time of six years and it was adjudged for the Plaintiff because that the request is the cause of the Action for without it he could not have his action And the sole matter upon which Davenport insisted was that this was a Contract by the Husband wherupon the Plaintiff might have an action of Debt against him and then it is but an Assumpsit in Law and the request is not cause of action And therfore he said as well as Debt lies upon the delivery of Cloath to a Taylor for the making Garments therof so an action of Debt lies for the summ accompanying the speciall matter viz. for the payment of so much as the making shall be reasonably worth vide Coke lib 4. fol 147. so Debt lies as well against the said Sir Arthur upon this promise being made then and there he vouched 34 E 1. Fitz Debt 167. vet N. B. fol 62. 30 E 3. 18. 19. 27 H 8. Tatams case But the Court inclined that no action of Debt lay against Sir Arthur upon this Assumpsit but only an action of the case upon the request Mich. 4 Car. Treford versus Holmes Case Assumpsit in consideration of forbearance TReford brought an action upon the Case against Holmes as Executor and counted that wheras the Testator was indebted to the Plaintiff the Defendant in consideration that the Plaintiff would forbear the said Debt for a reasonable time assumed to pay it And this promise was made in December and he shew forbearance untill March next And upon Non assumpsit pleaded and Verdict for the Plaintiff Serjeant Thinn moved in Arrest of Iudgment that it is no sufficient consideration for the incertainty of the time if it had been for a little time it had not been good But the Court adjudged it good for the Court ought to judge of the time whether it be reasonable vide Isaac Sidleys case before Then he moved another Exception which was that he had not shewn and averred in the Count that the Defendant had Assets at the time of the promise vide Coke lib 9. fol 93. 94. Baines Case that ought to come on the other part or otherwise it shall be upon Evidence if it be necessary And Iudgment for the Plaintiff Mich. 5 Car. A strange increase of Water in Westminster-Hall MEmorand That on Friday the twenty third day of October by reason of the greatnesse of the Spring-tyde and a great Flood the Hall of Westminster was so full of water that neither the Serjeants could come to the Bar nor any stand in the Hall for there was a Boat that rowed up and down there and therfore all that was done my Brother Harvey went to the Stairs which came out of the Exchequer and rode to the Treasury and by this way went and set in the Court and Adjourned all the Iuries for it was the fourth day del tres Mich. And after that we were in the Exchequer Chamber and heard four or five motions of the Prothonatories there This comming into Court was not of necessity unlesse it had been the Essoin day or that the Court should be Adjourned as Craft Animar The Chancery and Kings Bench sate for they came by the Court of Wards Freeman versus Stacy Mich. 5 Car. BEtween Freeman and Stacy upon a speciall Verdict the Case was y The Plaintiff count upon a Lease by Indenture for one and twenty years rendring Rent and in debt for the arrearages of this Rent it appears that the arrearages of the Rent for which the action was brought were due six years and more before the action brought And the Lord Richardson was of opinion Arrearages of Rent reserved by Indenture is not within the act of 21 Jac. of Limitations that Iudgment should be given against the Plaintiff because the Statute of the 21. of King James cap. 16. extends to Debts for arrearages of Rent expresly But I and my Brother Harvey and Brother Yelverton concurred that this action of Debt being upon a Lease by Indenture is not limited to any time by this Statute but is out of it and shall be brought as before the making of this Statute The words are All actions of debt grounded upon any lending or Contract without specialty All actions of Debt for arrearages of Rent c. And this is an action upon a Contract by specialty 4 H 6. 31. he ought to declare upon the Indenture and it is a Contract viz. a Lease And there is cause of using the Indenture every half year And it was resembled to the case upon the Statute of 32 H 8. of Limitation a Rent-charge which is founded upon a Deed or a Reservation of a Rent upon a Fee-â—â—mple by Deed are not within the Statute of Limitation And nothing in this Statute was intended to be limited which was founded upon a Deed And the words Debt for arrearages of Rent are supplyed and satisfied by the arrearages of Rent upon a Demise without Deed. And as to the Obligation that he proof of payment might be wanting when the occasion is brought so long after the Rent became due that might be objected to Debt upon an Obligation where the day of payment is for a long time past And afterward the Lord Richardson mutata opinione agreed with us And Iudgment was given for the Plaintiff Trin. 6 Car. Shervin versus Cartwright SHervin brought a Writ De rationabile parte bonorum against Cartwright and counted of Custom in the County of Nottingham Rationabl pars bonorum is not within the â— Statute of 21â— Jac. of Limitations and shew all specially and the conclusion was that he detaineth particular Goods of the party Plaintiff which appertained to him as his part and portion And upon Non detinet pleaded it was found that the Plaintiff was intituled to this Action many years before the Statute of 21 Jac. and that he had not brought his action within the time limited by the said Statute And upon the speciall Verdict the Case being argued by Serjeant Ward for the Plaintiff it was adjudged for the Plaintiff First because that this Action is an Originall Writ in the Register and is not mentioned in the said Act and though that the Issue is Non detinet yet this is no action of Detinue for a Writ of Detinue lies not for money unlesse it be in bags but a Rationabile parte bonorum lies for money in Pecuniis numeratis vide the Book of Entries Rationabile parte bonorum And this action lies not before the Debts be paid And the Account was that therby it might be known for what it should be brought and that in many cases requires longer time then the Statute gives Another reason was that Statutes are not made to extend to those cases which seldom or never happen as this case is but to those that frequently happen Also this Statute tolls the Common Law and shall not be extended to equity And upon all these
use of the said Robert and Isaac and their Heirs for ever by force therof and of the Statute 27 H 8. they were seised of the said Rent in Fee and after the said Robert died and Isaac survived and is yet seised Per jus Accrescendi and for Rent arrear c. and for the said forfeiture of forty shillings they avow wherupon the Plaintiff demur And upon Conference between the Iudges they all agreed that by this Fine which granted to Brook and Jermy and the Heirs of Brook to the use of Brook and Jermy and their Heirs that they were in by the Statute of 27 H 8. and were Ioyn-tenants of the Rent for otherwise there would be such a Fraction of the Estato that Brook should be in by the Common Law and Jermy by the Statute and that is not according to the Statute And it appears that the use was limited by the Fine it self and not by any Indenture And the principall reason is upon the Statute of 27 H 8. which is where two or three are seised to the use of one or two of them Cestui que uâ—e shall be adjudged to have such Estate in possession as they have in use Iudgment pro Defendent Memorand That in this Term a motion was made for the filing of a Writ of Entry in a Common Recovery suffered by Sir John Smith upon a Purchase and all was well done and the Writ made and sealed Filing of a Writ of Entry many Termes after but by the negligence of the Attorney it was not filed and it was Unanimo assensu resolved that it should be filed and that after the death of Sir John Smith for it is but to perfect a Common Recovery which is a Common Conveyance And this was denied in the case of one Allonson for there Error was brought and Diminution alledged and a Certificate that there was no Writ by the Custos brevium And it is ordinary to file these Writs at any time within a year without motion Mich. 8 Car. Harbert versus Angell CHarles Harbert Plaintiff against Angell Case Words in an action upon the case of words which were Thou art a Theef and hast cousened my Cosin Baldwin of his Land And after Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words would not maintain action And at the first Iustice Crawley and Iustice Vernon were of opinion that the former part of the words were actionable and that they were not extenuated by the subsequent words but they agreed if it had been for thou hast robbed c. it would be otherwise And the Lord Heath and Iustice Hutton were of a contrary opinion and that the words And and For are in this case to have one effect and declare what Theef he intended And they relyed on Birtridges case Coke lib 4. And upon this diversity of opinion the Lord Heath conferred with the Iustices of Serjeants Inn in Fleetstreet and we with the Lord Richardson and they all agreed that the subsequent words explained his intent and meaning viz. the Robbery and cousening of the Land And Verba sunt accipienda in mitiori sensu As to say Thou hast stoln my Corn it shall be intended Com growing so in Arrowes case Arrowes case 19 Jac. Thou art a Theef and hast stoln ten Cart-loads of my Furzes adjudged not actionable for it shall be intended of Furzes growing Quaerens nil capiat per breve Ram versus Lamley Norff. RAm brought an action upon the case against Lamley and declared That wheras he was Bonus legalis homo and free a suspitione feloniae the Defendant maliciously want to the Major of Linn and requested a Warrant of him being a Iustice of Peace against the Plaintiff for stealing his Ropes The Major said to him Be advised and look what you do the Defendant said to the Major Sir Words I will charge him with flat Felony for stealing my Ropes from my Shop Quorum quidem verborum c. And after Not guilty pleaded and Verdict for the Plaintiff Hitcham moved in Arrest of Iudgment And the Court unanimously resolved that these words being spoken to the Iustice of Peace when he came for his Warrant which was lawfull would not maintain an action for if they should no other would come to a Iustice to make complaint and to inform him of any Felony Quaerens nil capiat per breve Mich. 8 Car. Lamb versus West Trin. 8 Car. Rot. 333. SIr John Lamb Knight brought Replevin against Thomas West and count Replevin that the Defendant took his Beasts at Blisworth in quodam loco vocat Thorny Close The Defendant avowed as Bayliff to Sir William Sheapherd and derived Title by a Lease to Michael West for ninety years if he and Thomas West the Defendant Demand of Rent and one Hutton West should so long live And the said Michael 19. Aprilis An 20 Jac. granted a Rent-charge of ten pounds per annum to the said William Shepheard and his Executors out of the place in which c. for the residue of his Tearm to be paid at the house of Thomas West in S. And the said Mich. granted that if the Rent he arrear by eight and twenty daies being lawfully demanded at the said house he should forfeit twenty shillings for every day that it should he arrear and if it be arrear by six months being lawfully demanded at the said house then he might distrain for that and the Nomine poenae And for Rent arrear by a year after demand due c. he makes Conuzance And therupon the Plaintiff demurred generalls And after many Arguments at Bar the Iustices delivered shortly their opinions severally and all argued that it is a Rent-charge and then a Distresse is incident to a Rent-charge which is in its creation a Rent-charge as well as if one makes a Lease for life or years rendring Rent and if it be lawfully demanded then it shall be lawfull to distrain for it None will deny but that he may distrain for this Rent without any demand And the diversity is between a Penalty and a Rent for if the Avowry had been for any part of the Nomine poenae then without actuall demand at the day he could not have distrained therfore vide Maunds case Coke lib 7. fol 28. And all agreed that when a Distresse is for Homage if it be once tendred and refused he cannot distrain without demand vide Litt 34. 21 E 4. 6. 16 17. 7. E 4. 4. That where a Rent is reserved upon a Lease and an Obligation to pay it yet that alters not the nature of the Rent 22 H 6. a good case Rent is reserved upon a Lease and an Obligation to perform Covenants that extends not to the Rent reserved but if it be to pay the Rent then it shall be demanded there it is said that if Rent be tendred and refused the Lord or Lessor may distrain without demand It was agreed that
happen as in Chudleys case Coke lib 1. fol 133. a Feoffment to the use of the Feoffor for life and after his death to his first Son which shall be afterwards born for his life and so to divers And afterwards to the use of I. D. in tail It is resolved that all the uses limited to-persons not in Esse are contingent but the uses to persons in Esse vest presently and yet these contingent uses when they happen vest by interposition if the first Estate for life which ought to support them be not disturbed And in this case it was a good Estate for life in Margaret And then gives the remane in the Feoffees for eighty years if Nicholas and Elizabeth Sanders so long should live and if Elizabeth survive Nicholas then to Elizabeth for her life and after her decease to Posthumus in tail and after his decease to the said three Daughters in tail so that there the Estate for years determines upon the death of Elizabeth and so also the Estate for life to Elizabeth which was contingent determines by his death And the Lord Darbies case a Feoffment to the use of Edward The Lord Derbies case late Earl of Derby in tail and then to the use of the two Feoffees for eighty years if Henry late Earl of Darby should so long live and after his decease to Ferdinand and to the Heirs Males of his body and for default of such Issue to the use of William now Earl of Derby And it was adjudged that the remainders vest presently And this possibility that Henry might have over lived the eighty years will not make the remainders contingent And in a Suit which was at Lancaster between Farrington and another Farringtons case upon a speciall Verdict there found about 8 Jac. and many times argued at Serjeants Inn it was afterwards adjudged a good remainder and not contingent And the same case in this Court upon a Scire facias for two have executor of certain Land for debt recovered against the Earl of Derby which Land was intailed by the same Conveyance c. brought against the Earl of Bridgwater and his Wife one of the Co-heirs of Ferdinand Earl of Derby was adjudged in this Court vide Borastons case Coke lib 3. fol 20. 14 Eliz Dyer 314. Lovies case Coke lib 10. 27 H 8. 24. 38 E 3. 26. 5 E 3. 27. 30. E 3. Collthurst and Bemchins case was urged that the remainder limited to B. for life and after that C. hath married Ja. S. then to the use of C. in Fee this is contingent and is collaterall And this case is not like to that And after Argument at Bar this Term it being argued before that the Lord Richardson was there who was of the same opinion we all concurred and Iudgment was entred for the Plaintiff Pasch 8 Car. Metcalfe versus Hodgson Case MEtcalfe brought an action upon the case against Hodgson and Wharton late Sheriffs of the City of York and count That wheras time out of memory c. there hath been a Court of Record holden before the Sheriffs of the said City upon the Bridge called Ousbridge An action of the case lies not against a Sheriff for taking of insufficient Bail being Iudges and that in this Court every one having cause of action arising within the said City had used to commence any action for debt there and that the Defendants being arrested by their bodies the Sheriffs had used to take Bayle of them and to let them to Bayle finding sufficient sureties and that the Sheriffs are also and time out of memory have been Keepers of the Gaol there And wheras the Plaintiff had brought an action against one Smith and recovered the now Defendants being Sheriffs had taken insufficient Bail of him c. And upon Not guilty pleaded it was tryed before the Lord chief Baron at York for the Bail are supposed to be taken at Wakefield but that was not alledged for any thing which appears to be out of their Iurisdiction And the Iury contrary to the direction of the Lord chief Baron gave Verdict for the Plaintiff And after many motions in Arrest and praying of Iudgment it was resolved that this act was done by them as Iudges and for this Iudiciall Act no action lay And though that the Bail by the event appear to be insufficient yet there is no remedy by action upon the case it being without fraud or corruption and not for reward And this Case differs nothing from the ordinary cases of all insufficient Bailes taken by any of the Kings-Bench Common Bench or Exchequer And that they having two Authorities in una persona it shall be taken to be done by that Authority by which they have power to vail and that is as Iudges of the Court and not as Gaolers for by this they have no power to Bail any and in this capacity they are only subject to an escape vide Dyer 163. Error cannot be assigned in that which the Court of Common Bench do as Iudges vide 12 E 4. 19. Conspiracy lies not for that which a Iustice doth as Iudge of Record Quaerens nil capiat per breve Mich. 8 Car. Hickes versus Mounford Trin. 7 Car. Rot. 514. Replevin REplevin brought by Walter Hickes against Simon Mounford and others the Defendants make Conusance as Bayliffs to Sir John Elliot Executor of Richard Giddy And that the place contain twenty acres and was parcell of the Mannor of Trevelun And that Thomas Archbishop of York and Cardinall and three others were seised of the Mannor wherof c. in Fee Traverse of a day and the third of June 11 H 8. by Deed inrolled granted to King H. 8. a Rent-charge of fifty Marks per annum out therof in Fee with clause of Distresse and convey the Rent by discent to E. 6. Mary and Elizabeth who by her Letters Patents granted it to Richard Giddy for life who made the said Sir John Elliot his Executor and died and for such a summ arrear they Avow c. The Plaintiff pleaded in Bar to this Avowry and confessed the Seisin of the said Arch-bishop and the others and said that the said Arch-bishop and the others the fourth of June 11 H 8. enfeoffed Peter Edgecombe in Fee of the said Mannor who conveyed it to Richard Edgecombe Knight who entred and licensed the Plaintiff to put in his Beasts which he did and that they were there untill by the Defendants distrained absque hoc that the said Arch-bishop and the others the aforesaid 3. June 11 H 8. granted the said Rent to the said King and his Heirs Modo forma prout the Defendants alledged Et hoc paratus est verificare The Defendants say that the Arch-bishop and the others granted the Rent to the King modo forma as they had alledged and Issue therupon and the Iury found That the said Arch-bishop and the others 11 H 8. recovered this Land against Sir
the Award of Costs were in full force and effect But that afterwards viz. such a time as well the said Iudgment de non pros as the said Iudgment of thirty pounds Debt against the now Plaintiff were evacuated wherupon the Defendant demurred And it having been often debated by Hitcham for the Defendant and Henden for the Plaintiff And now upon Oyer of the Record and of the Iudgment the Court gave Iudgment for the Plaintiff And the Lord Finch said that this action upon the case is grounded upon two misdemeanours 1. The procurement of the said Iudgment for Edw. L. after a Non pros entred for the Defendant And though the Iudgment was erroneous yet the now Plaintiff was vexed and imprisoned therby which indeed is the cause of this action 2. The taking therof unlawfully when the first Iudgment de non pros was in force and the Plea of Nil tiel Record go only to one of the Causes And admitting that there was never a Iudgment de non pros but that the Defendant had unlawfully procured a Iudgment and taken Execution therupon and procured the Plaintiff to be taken in Execution and Imprisoned this is cause of action And to that he hath not answered and therfore he ought to have pleaded Not guilty to that which he takes by protestation Iudgment pro quaerente Pasch 11 Car. Baker versus Hucking Adjudged B. Rs. Tenant in tail and he in Reversion make a I. case Pro ut aut vic TEnant in tail and he in Reversion joyn by Deed in a Lease for life he in Reversion devise the Land by his Will to one in Fee and dieth Tenant in tail dies without Issue and the Heir of him in Reversion and the Devises claim the Land And the sole question is if this Lease be a Discontinuance and it was adjudged a Discontinuance and then the Devise void for he had not a Reversion And the difference was taken when Tenant for life and he in Reversion joyn in a Lease by Deed for without Deed it is first a Surrender Discontinuance and then the Lease or Feoffment of him in Reversion it shall be the Lease of Tenant for life so long as he live and after the Lease of him in Reversion and yet they shall joyn in a Writ of Wast And in this case there is no question but if the Lease had been made solely by Tenant in tail that then it were a Discontinuance and the joyning of him in Reversion alters it not for that amounts to nothing but as a Confirmation and is not like to Bredons case Coke lib 1. fol 76. Where Tenant for life and he in remainder in tail levy a Fine for every one there passeth that which lawfully he may And upon Argument it was adjudged that it was a Discontinuance and not the Lease of him in Reversion but his Confirmation Iustice Crooke differed in opinion Mich. 11 Car. Lashbrookes Case Somerset LEwes Lashbrook an Attorney of this Court brought an action of Trespasse against I. S. for entring into his house and breaking his Close And in the new Assignment he alledged the Trespasse to be in a house called the Entry and in a house called the Kitchin and in his Garden and in one Close called the Court. The Defendant as to the force c. and to all besides the Entry plead Not guilty And as to his entry into the Court and Kitchin A Warrant to four and two of them execute it and the Tenements aforesaid of the new Assignment he plead that he had brought an action against a woman for Trespasse and had so proceeded that he recovered and had execution directed to the Sheriff of Somersetshire and therupon a Warrant directed to four speciall Bayliffs to arrest the said Woman and two of them at Minehead in the County of Somersetshire arrested her and carried her to the house of the Plaintiff in Minehead being a Common Inn and the Defendant entred into the said houses called the Entry and Kitchin and the Tenements aforesaid of the new Assignment to speak to the Bayliffs and to warn them to keep her safe And as soon as he could he returned wherupon the Plaintiff demurred And now Henden took two Exceptions the first was 1. That the Defendant had not pleaded to all the Closes but that was over-ruled for he justified in the tenements aforesaid of the new Assignment 2. The second was that the Warrant to the Bayliffs was to all and not Conjunctim and Divisim and therfore it should be by all and not by two only To that it was answered and resolved that when a Sheriff makes such a Warrant which is for the Execution of Iustice that may be by any of them for it is Pro bono publico And the very Case was adjudged 45 Eliz between King Hebbs Coke Littleton 181. b. And Iudgment was given for the Defendant Hil. 11 Car. Davies Case Hereford DAvies an Attorney of this Court brought an action upon the case for these words If I list I can prove him Perjured Words And the opinion of the Court was that they were not actionable for there is not any Affirmative that he was perjured but a thing which is Arbitrary and saies not that he would do it Iudgment pro Defend Mich. 7 Car. Rot. 1097. Alston versus Andrew Suff. Pâ—ter Alston Executor of Peter Alston brought an action of Debt upon an Obligation of a hundred and twenty pounds against William Andrew The Obligor and the Obligee make the same person Executor and Edward Andrew and count That the Defendants and one Francis A. became obliged to the Testator c. and that they did not pay it is the said Testator in his life nor to the now Plaintiff and one Francis Andrew Co-executor with the Plaintiff who is summoned and the Plaintiff admits to prosecute alone without the same Francis c. The Defendants demand Oyer of the Obligation which is entred in haec verba and plead that Francis A. in the said Writing named after the making therof made the said Francis Andrew and Barb. A. his Executors and died And that the said Francis A. accepted the Burthen of the Testament And after the said Peter Alston the Testator made his will and Constituted the Plaintiff and the said Francis his Executors and died Et hoc paratus est verificare unde c. wherupon the Plaintiff demur Trugeon and Meron Mich 2 Jac. Rot. 2663. Garret Trugeon Plaintiff against one Anthony Meron and others the Administrators of Benjamin Scrivin upon a single Bill The Defendants demand Oyer of the Bill wherby it appears that one John Simcocks was obliged to the said Trugeon joyntly and severally with the said Scrivin Quibus lectis auditis the Defendants sayd that the said Simcocks died intestate and that the Administration of his Goods was granted to the now Plaintiff who accepted the Burthen of the Administration and Administred the Plaintiff demurred
was that none should use the Art of Weaving within the said Burrough or should have any Loom in his house or possession to have any benefit therby unlesse he had been an Apprentice to the said Art within the said Burrough for the space and term of seven years or had used the said Art within the said Burrough for five years before the making of the said Ordinance or shall be admitted therto by the Wardens and Society upon pain of forfeiture for every month twenty shillings And they further shew that after the said Ordinance made and confirmed the Defendant such a day before his inhabiting in the said Burrough and after such a day that one William Godwin being then Warden of the Weavers gave notice to the Defendant of the said Ordinance and that he afterwards c. during five months continued using the said Trade there and that he had two Looms in his possession where he had not been an Apprentice nor used the said Art for five years as before c. by which he forfeited to them five pounds viz for every month twenty shillings The Defendant pleaded Nil debet and after Verdict for the Plaintiffs it was moved by Arrest of Iudgment that this Ordinance was not reasonable and upon Arguments and Conference without arguments at the Bench it was agreed that the Ordinance was against Law and Iudgment against the Plaintiffs And Lord Hobart in Hil 15 Jac declared that we were all of opinion that Iudgment should be given against the Plaintiffs And he repeated the Case and the reasons of this Iudgment because the Ordinance was that none should use the Trade of Weaver nor have any Loom in the Town unlesse he had served c. before the making of this Ordinance so that all Apprentices which serve after shall be excluded unlesse they shall be admitted by them which is unreasonable And the Plaintiffs do not convey to themselves any good Title to be Wardens but as to the principall point of making such a restraining Ordinance the Court did not deliver any opinion Mich. 15 Jac. Rot. 2327. Dorrell versus Andrews SUsan Dorrell brought an action of Debt against Sir Eusebius Andrews London Debt The Visn of a Town within a Parish and John Cope for eighty five pounds and count upon a Lease made by her to the Defendants by Indenture by which she demised one Capitall Messuage Mannor or House called Causton within the Parish of Dunchurch in the County of Warwick and all the Stables c. in Causton aforesaid The Defendant protesting that the Rent was not behind for Plea saies that before any Rend arrear the Plaintiff entred into severall parts of the house and him dispossessed and upon that they were at issue and the Venice facias was de vicineto de Causton within the Parish of Dunchurch And it was moved in Arrest of Iudgment that the Venire facias should be of the Parish only and not of Causton for Causton is not alledged as a Town but the name of a house And the Court resolved that the Ven. fac was good for Causton is alledged as a Town in the Parish of Dunchurch and that by the addition and generall words in the Demise in which also there was an exception of part of the House as Mannor-house at Causton aforesaid so that the house is alledged to be in Causton in the Parish of Dunchurch if all be considered And if it appear that Causton is a Town or Village in the Parish of Dunchurch it will be without any doubt good And my Lord Hobart said that it had been divers times adjudged that on the Allegation of a thing done at the Town of Dale in the Parish of Sale that the Ven. fac of the Parish is good for though the Parish may contain more Towns yet it is not to be presumed but that it is of one Continent if the contrary appear not by the Record vide for that Pasch 9 Jac. between the Lord Candish and Sir George Savill c. There was another exception taken to the pleading Candish and Savill which I have not transcribed Trin. 14 Jac. Rot. 755 Swaine versus Holman RIchard Swaine Plaintiff Brownlow Dors. Wast against Thomas Holman and Elizabeth his Wife brought Wast and declared of a Lease made Anno the 8. of Eliz by the Queen under the Exchequer Seal to William Jolliff Thomas Jolliff and Elizabeth Jolliff for three lives and that William and Thomas were dead and convey the remainder to the King that now is and from him to the Plaintiff and that the Defendant Elizabeth took H. to Husband which did wast c. The Defendants confesse the Lease death and marriage as above c and say that the said Holman and Elizabeth his wife 2. Feb 40 Eliz. surrendred as well all their Estate of the said Elizabeth as the Letters Patents to the intent that the Queen should make a new Lease to the said Elizabeth and to Humphrey Holman and to Roger Holman for their lives successively which surrender the Queen accepted and the third of Febr next made such Demise and this they are ready to aver c. The Plaintiff replies and joyns Issue upon the Surrender and Demise in manner and form and the Issue was tried by a Venue which came from Westminster and the Iury found this speciall Verdict viz. the new Lease made the third of Felic in which it is recited that she had surrendred the Estate and the Letters Patents and the Queen as well in consideration of the surrender of the Letters Patents as in consideration of the payment of twenty Nobles made by the new Lease and the Iury found that the Demise made the third of Febr was with the consent of the said Thomas Holman and that the said Thomas Holman and Elizabeth his wife agreed therto and held in claiming by the said Demise And it was adjudged by the Lord Hobart and others the Iustices that the Plaintiff should have Iudgment First the consideration which procured the new Lease is the Surrender and the Surrender is not absolute but defeisable if the wife survive or if the Husband will disagree and therfore the Lord Hobart said that if Feme Lesses for years takes Husband and after the Feme takes a new Lease of the Queen for life this extinguisheth the term but if the Husband disagree then the Lease for yeers is revived And as in Barwicks Case the surrender of all the Estate where he had made a Lease for years before or where the Lease which he surrendred was void the new Lease made 〈◊〉 consideration therof is vein for the Surrender which is the consideration ought to be a good surrender of the former Estate And therfore if Lessee for life of the Blemise of the King surrender conditionally and the King reciting that he had surrendred all his Estate makes a new Lease this shall be intended an absolute Estate for a conditionall surrender within three years of
without Custom nor the Lord cannot commit during the Minority of an Infant Copyholder without Custom Hil. 15 Jac. Rot. 906. Smith versus Stafford Brownlow Suff. ANdrew Smith and Anne his Wife Case against Richard Stafford Executor of Jeremy Stafford in an Action upon the Case the Plaintiff counts that wheras there was Communication had of a Marriage between the said Anne when she was sole and the said Jeremy Where inter-marriage release a promise made by the Husband to the Wife before marriage the said Jeremy in consideration that the said Anne would take him to her husband promised that if after the Marriage the said Jeremy dyed living the said Anne he would leave the said Anne worth a hundred pounds and aver that she did marry the said Jeremy which died and did not leave her worth a hundred pounds And upon Non assumpsit the Iury found for the Plaintiff and in Arrest of Iudgment it was alledged that this intermarriage had extinguisht the action vide 11 H 7. 4 21 H. 7. 30. Coke 8. 136. there in Sir John Needhams case many cases are put vide Hoes case that a Release do not discharge Bail before Iudgment for it is contingent vide one Iudgment Hil 6. Jac. in the Kings Bench Rot 132. Thomas Belcher and Elizabeth his Wife Belcher and Hudson against Edmond Hudson an Action upon the case in consideration that the said Elizabeth at his request would take one Thomas Mason his familiar Friend to her Husband he assumed and promised that if the said Elizabeth survived the said Mason that he would pay yearly to her forty shillings for her maintenance and shews that therupon she did take the said Mason to her Husband and survived him and then married with the Plaintiff the Defendant pleads a Release from Mason of all Actions Demands c. and it was adjudged no sufficient release But Lord Hobart said that if he had released all promises that would have discharged the Defendant vide 4 Eliz Release of all Actions Suits Quarrels c. doth not release a Covenant before it be broken but otherwise of a release of all Covenants as it appears in Dyer 57. though the principall case was a release of all Covenants untill such a day and Covenants were broken before and not discharged for it being broken before there was no Covenant as to that Vide Lampets case Coke lib 10. 51. the reason of the release in Hoes case was because that it was contingent and uncertain and 17 Eliz a Lease to the Husband and Wife for life the Remainder to the Survivor of them for one and twenty years the Baron grant it over and survive yet it is void because it was contingent And the Lord Hobart said that the promise was released by the inter-marriage and so shall be in the case of an Obligation for Fortior est dispositio legis quam hominis and he held that strongly to be Law but Iustice Winch and Iustice Hutton held the contrary and that the Law will not work a release contrary to the intent of the parties and that the marriage which is the cause do not destroy that which it self creates Trin. 6 Jac. Jurden versus Stone Glocest EIectment upon a Lease made by Alice Remington of a Copyhold in South Corny Walter B. Copyholder in Fee married the said Alice And there was a Custom in the Mannor that the Wife shall have the Copyhold as of Franck-banck during her Widowhood Where a woman may enter in and bring an action tâ—â— beâ—â—â— Franck bank before admittance Si tam diu casta viveret and had used to challenge it and the Lord granted it as appears by divers admittances of women and this Wife after the death of her Husband came into Court and challenged her right of Franck-bank and prayed to be admitted and that the Steward refused and she made a Lease for one year to the Plaintiff and if he might bring this action by reason the woman was not admitted for it was agreed that no Fine was due to the Lord was the question And upon the Evidence it was resolved by the Court that this Estate ariseth out of the Estate of the Husband And as Lord Hobart said it budded forth of the first Estate and it seemed that where Tenant for life is admitted that shal be the admittance of him in remainder Also if the Free-hold of the Copyhold be granted over and the Husband dies there there cannot be any admittance and yet she may enter and in this case if any admittance had been necessary she had done all that she could do and that amounts to an admittance in Law to an Estate created by the Custom and by the act of God and Law A Tenant alieu and the Feoffee tender the services and gives notice the Lord refuse this is sufficient and the Lord shall be compelled to avow upon him Continuall claim amounts to an entry Pasch 16 Jac. Rot. 444. Blands Case Case GEorge Bland brought an Action upon the Case against A. B. the Defendant having some communication with one Eagle said that he was a troublesome fellow and he doubted not but to see him indicted at the next Assises for Barretry or Sheep-stealing as George Bland was Words for George Bland was indicted the last Assises for stealing of Sheep and it was not averred that he was not indicted but that he was of good fame It was moved in Arrest of Iudgment that it is not actionable and so was the opinion of the Court for it is not a direct affirmative vide the case of Steward against Bishop before fol. 1. And if one saies I suspect you for stealing my Horse And Iudgment was given for the Defendant Trin. 16 Jac. Darcy versus Askwith Brownlow Ebor. JOhn Lord Darcy of Ashton brought an action of Wast against Robert Askwith now Knight and John Marshall Wast and assigne the wast in Woods viz. In cutting down and selling two Oakes foure Ashes in a Close called Tisley Close two Okes in Parsons croft one Ash in Pinder croft and sixty one Oakes in Preston Lands Wast in cutting of wood to make Cole mines and in divers other Closes in Swillington and Preston The Defendant plead a Lease of the Mannor of Swillington to him for years and also of the Mines and justifie the shrowding of the Trees to make Punchons Poles and Stakes and other Vtensils in and about certain Pits called Cole-mines in one of the Closes without which the Defendants could noâ— dig and take Coles out of the said Pits and aver imployment about of the said Cole-mines justifie the cutting of other trees for the making of Instruments for the extracting of the water out of the said Pits and that without which they could not dig any Coles and they were necessary for the digging of Coles and for supporting the Pits and aver the Imployment And therupon the Plaintiff demurred And we all agreed
he had nothing else to say but submit himself to the mercy of the King And there execution was awarded and a Roll made therof and so it was done in Lepu's case as the President was shewn and he was committed to the Sheriffs of London and Middlesex and by them he was brought to the Gatehouse and the next day which day the Lord Mayor of London came to Westminster to take his Oath he was beheaded in the great Court at Westminster and he died in a good and religious manner and spake much without any fear of death submitted himself to the Block and by his death gained great reputation in this life and by the grace and mercy of God remission of his sins and eternall life afterwards c. Bishop and others FAther Tenant in tail hath Issue two Sons the Father with the eldest Son makes a Feoffment with Warranty the eldest Son dies Lineall Warranty and after the Father dies the younger Son brought his Formedon and this Feoffment with warranty of the eldest Son is pleaded in Bar and upon Demurrer Iudgment for the Demandant For it is but a lineall Warranty and then without Assets it is no Bar for though the eldest Son dye in the life of the Father yet the younger Son by possibility might have the Land as Heir to him Mich. 16 Jacobi AN action of Debt was brought upon the Statute of 5 Eliz. for perjury against one that was produc't as a Witnesse in an action of Trespasse and deposed falsely And upon Nil debet pleaded the Plaintiff was non-suit Costs shal not be allowed upon a non-suit in an action brought upon the Statute 5 Eliz. of Perjury And whether the Defendant should have costs or no was moved by Serjeant Harvy and that stands upon the words of the Statute of 23 H. 8. cap. 16. the words are In any Action Suit Bill upon the Case or upon any Statute for any Offence or wrong personall immediatly supposed to be done to the Plaintiff The opinion of the Court was that the Defendant should not have costs upon this non-suit because that this action is founded upon a Statute made long after the making of that Statute Also this is not an immediate wrong to the Plaintiff but to the Secondary for it is an immediate wrong to the truth and such Statutes which are intended by this Act shall be like to Trespasse done to the party himself as Ravishment of Ward Also it is not aided by the Statute of 4 Jacobi cap 3. for that gives costs to the Defendant where the Plaintiff shall have costs if he recover And Mr. Brownlow the Prothonatory said that it had been ruled so before for the Plaintiff should not have costs if he recover because the Act 5 Eliz. gives a Penalty viz. a forfeiture of twenty pounds against the Witnesse and forty pounds against the Suborner and so the Plaintiff if he had recovered should not have had any costs and therfore it is not aided by the Statute of 4 Jacobi Mich. 16 Jacobi Conesbies Case THe Lady Conesby being the Wife of Sir Ralph Conesby was cited into the Ecclesiasticall Court by Mr. Watts Prohibition who had married Elizabeth the Grand-child of the Father of Sir Ralph to which Grand-child by Will one Legacy of a hundred pounds was devised and that was pass 3 Jac. by the Lady Conesby Executor of the first Testator and upon payment an Acquittance under the hand and Seal of the said Watts was c. in the presence of two Witnesses now dead And this being denied and they allowing of no proof by comparison of hands nor by circumstances but only proof of them which wrote it or of them which saw them subscribe And by their Law an Acquittance of the Husband for a Legacy to the Wife without the Wife is not sufficient also if Watts himself will deny it upon his Oath there it shall stand against all proofs A Prohibition was granted upon the motion of Serjeant John Moore and after Serjeant Harvy had said all that he could say Trin. 16 Jac. Rot. 954. Kind versus Ammery KInd Plaintiff in a Replevin against Ammery Replevin The Avowry was for a Rent-charge and the Grant was of a rent of twelve pounds payable at two Feasts Demand not necessary in an Avowry for a Rent-charge and if it vs behind for the space of a month after any of the said Feasts it being lawfully demanded that he might distrain and for Rent arrear at the Annunciation and by the space of a month after and not paid he distrained And the Plaintiff demurred upon this Avowry and shewes for cause that it is not shewn that the Avowant made any demand before the Distresse And Serjeant Harris relied upon a Case which was An 31 Eliz. as he said and vouched the number Roll Bosdens case that upon demurrer between Bosden and Downes there the Avowry was not good for the same cause And Maunds case Coke lib. 7 fol. 28. implies that it ought to be demanded but it is not issuable if it be at the day or after And he said it was debated 31 Eliz. whether it was form or substance which shall not need to be shewn upon Demurrer But the Court agreed that no actuall demand was necessary to procede the Distresse in this case but that the Distresse is a demand But if the Grant has been penned in this form if it be arrear at such a Feast and for a month after demand that then he may distrain otherwise it is for there the Distresse is limited to the month after the demand And so it was adjudged in this Court between Coppleston and Langford Trin. 3. Car. Rot. 2865. Copplestone Langford Replevin between Beriman and Bower Avowry for Rent granted out of ten acres of Land in Crediton payable at such a Feast upon the Town stone upon the Key in Barnstable if it be lawfully demanded with clause of Distresse and the Distresse was before demand and upon demurrer it was resolved a good Distresse without demand vide Dyer 348. Booton against the Bishop of Rochester A Quare impedit was brought by Booton against the Bishop of Rochester who pleads that he claims nothing but as Ordinary and yet pleads further that the Clerk which the Plaintiff present had before contracted with the Plaintiff Simoniacally Insufficient return on a Writ in Quare Impedit to the Arch bishop and therfore because he was Simoniacus he refused him and that the Church was then void and so remained void wherupon the Plaintiff had a Writ to the Arch-bishop of Canterbury who returned that before the coming of this Writ viz. 4 July the Church was full of one Mr. Doctor Grant ex collatione of the said Bishop of Rochester which had collated by Laps and this return was adjudged insufficient First it is clear that though the six months passe yet if the Patron present the Bishop ought to admit although it
to the charges But to offer any particular summ is not necessary because they know not what summ is disbursed and that is to be assessed by the Commissioners And the words for the charge of the Commission is to be extended to all charges arising in suing forth the Commission and in execution and defence therof Also it was resolved that at any time before the distribution made they may come and pray to be joyned But after the four months passed and any distribution made though it be but of part then they come too late For by this means the distribution which is made and wherby some of the Creditors shall receive more shall be utterly avoided and another proportion made which was not the intent of the Statute Pasch 18 Jac. Mason versus Thompson Case AN action upon the case was brought for these words I charge thee with Felony for taking money forth from Iohn Spaci's Pocket and I will prove it Words Henden moved in Arrest of Iudgment that these words were not actionable First because that it is not any direct affirmative that he is a Felon and for that he vouched a case as he said adjudged in the Kings Bench Masters bear Witnesse that he is a Theef The second reason was because that the matter subsequent do not contains matter which must of necessity be Felony but stands indifferent For if it be not privily and secretly it is not Felony and it may be by way of sport or trespasse For as one said That he is a Theef and stole his Timber it is not actionable for it might be Timber cut or Timber growing so to say That he stole his Corn or his Apples or his Hope For in Mitiorem partem verba sunt accipienda And it seemed to the Lord Hobart that the first words viz. I charge thee with Felony are actionable for the Constable if he be there present ought to apprehend him therupon and it is a plain Affirmative I arrest thee of high Treason Iustice Winch prima facie held that the words were actionable and not qualified by the subsequent words as it should be if he had said For thou hast stoln my Apple Trees standing in my Orchard that could not be Felony but it is not so there for it may be Felony and ex causa dicendi it shall be taken Felony in these words for taking money c. Warburton and Hutton was of opinion that the Action lay not This Case was moved in Mich. 18 Jac. And then the opinion of the Court praeter Warburton qui haesitavit was that the Action did not lye Ideo memorand quod quetens nil capiat per breve Trin. 18 Jac. Hall versus Woollen JOhn Hall an Attorney of this Court Case Consideration of an Asâ—urâ—p sit brought an action upon the case against Woollen and declared that wheras the Defendant was possessed of an House and Land in Mekon Mowbray in the County of Leicester for one term of the Lease of Sir John Woodward And wheras one Webb was in communication of buying the said Lease of Woollen and Woollen could not sell it without the assent of Sir John W. The Defendant in consideration that the Plaintiff would procure licence of the said Sir John he promised to pay to him so much as he should disburse and deserve therfore And averred that he did procure a License and delivered it to the Defendant and disbursed such a summ and deserved for his labour such a summ and the Defendant upon the Count did demur And the question was whether that were a good consideration or no for it did not appear that there was any condition to restrain him from making an Assignment and if I promise that wheras I am obliged to A. if you will procure B. which is a stranger to make a Release therof to me I will pay you forty pounds though it be done at my instance no action lies for it is apparant that B. could not release the Obligation But it was adjudged that is a good consideration for it appears that there was privity between them and it may be that he had promised that he would not assign it without his licence And in good discretion it was convenient to have it also it was at his instance and for his satisfaction And it hath been adjudged if one promise forty pounds to another if he can procure the assent of the Mother of a woman though he may do it without such consent yet it is a good consideration Mich. 18 Jac. Clerk versus Wood. CLerk brought an action upon the case against one Wood Case alias Warren and count that he was seised of an house and twenty acres of land c in Thursfield and that he and all those whose Estate he hath have had a Common in seven acres in Thursfield And that he and all those c. have had one way leading through the said seven acres Ven. fac upon prescription for a way in divers Townâ— and from thence into one Common way leading to Buntingford and from Buntingford to Blakeley And that the Defendant had plowed and turned up the seven acres and estopped the way The Defendant pleaded not guilty and the Venire facias awarded de Tursfield And it was moved in Arrest of Iudgment by Serjeant Jones that it ought to be from all the Towns through which he claim his way for he ought to prove it in evidence viz. that he had a way or otherwise he is not endamnified But it was resolved that the tryall was good for Not guilty is properly a deniall of trespasse and disturbance and though he ought to prove title to the way yet it is sufficient if he prove title to the way by and through the seven acres upon evidence And yet if the Prescription had been traversed then he ought to prove all the way any the tryall shall be from every Town through which the way is pleaded to be extended quod vide 10 E. 4. fol. 10. where it was in two Counties and the Venire facias shall be from both and the tryall shall not be by Nisi prius vide the case between Reyner and Waterhouse supra Mich. 16 Jac. Rot. 2344. Lamb versus Thompson Debt A Condition not to be assisting to another hinders him not to bring a Writ of Error joyntly with him EDmund Lamb brought an action of Debt against Richard Thompson upon an Obligation of forty pounds the Condition whereof was If the Defendant shall not be assisting or any waies aiding unto Thomas Elme or any other person for the said Thomas Elme in any Actions Suits Vexations c. to be commenced and prosecuted against the said Plaintiff c. That then c. the Defendant pleaded Negative The Plaintiff reply that he such a day brought Trespasse against the said Thomas Elme and the now Defendant and had Iudgment and that the Defendant joyned with him in a Writ of Error in hinderance of the
3 H 6. 14. 32. there it is well argued and the better opinion that it is only by argument And a man outlawed may make an Executor and this Executor may have a Writ of Error to reverse the Outlawry And therupon and upon the view of the Record in Woolleys case the Court gave Iudgment that it is no plea. Lightfoot versus Brightman Covenant LIghtfoot brought on action of Covenant against Brightman and count that the Defendant being possessed of an Advowson in grosse for tearm of years covenanted that he would not grant nor assign his Interest to any Grant of an Advowson pleaded without alledging to be by deed good if the issue be taken upon collaterall matter without offer therof first to the Plaintiff and that he should have it fifty pounds better cheap then any other and alledge breach of the Covenant that he granted the said Advowson and his tearm therin over without offering it to the Plaintiff and Issue joyned upon non concessit and found by Verdict quod concessit and damages fifty pounds And it was moved in Arrest of Iudgment that it is not alledged that the Grant upon which the Issue is joyned was by Deed and then no breach assigned I at the first was of opinion that the Iudgment should stay but after upon advisement I concurred with Serjeant Hobart and Iustice Winch that it was averred by the Verdict for now it being a perfect Grant it shall be intended that upon the Evidence a Deed was shewn as upon Issue joyned upon Grant of a Reversion where it is not alledged that it was by Deed or that the Tenant atturned yet if it be found it shall be good And so in Avowry for a Rent-charge where the Grant therof is pleaded not by Deed and Issue is joyned fur concessit and found quod concessit that is good by the Verdict like to Nichols case Coke lib 5. Debt upon a Bill payment pleaded and Issue found for the Plaintiff he had Iudgment But it seems if it had been found for the Defendant the Plaintiff shall have Iudgment for the Bar confesse the action as in the 9 H. 6. Debt upon an Obligation the Defendant plead that he delivered it to the Plaintiff to be his Deed when certain Conditions were performed And he pleaded that the Conditions were not performed if it be found accordingly yet the Plaintiff shall have Iudgment Coke lib 2. fol 61. Wiscots case a Lease by Baron and Feme which ought to be by Deed pleaded generally and found the Plaintiff had Iudgment vide Smith and Stâ—plâ—tons case Mich. 20 Jac. Chittle versus Sammon CHittle against Sammon in Replevin Replevin Avowry for Rent granted to the Father in see without alledging that it was arreare after the death of the Father Counsance for Rent as Bayliff to Sir John Reves upon a Grant out of the Land wherof the place in which c. was parcell upon a Grant made to the Father of Sir John and for Rent arrear c. Issue was joyned upon this point if the place was parcell of the Land out of which the Rent was granted and found by Verdict that it was And now moved by Attho in Arrest of Iudgment that it is not alledged that this Rent was arrear after the death of the Father as it ought to be and therfore it may be intended that this Rent was arrear in the life of the Father But the Court agreed and resolved that it was good after Verdict for now it is pleaded that it was arrear and not paid to him Ergo it was due to him and though it might have been more fully pleaded yet after Verdict it is sufficient Fletcher versus Harcot AN action upon the case was brought by Fletcher of Otely against Harcot and count Case that wheras the Defendant had arrested one Batersby by a Commission of rebellion Assumpsit in consideration that the plaintiff being an Hostler would keep a Prisoner to save him harmlesse issuing out of the Court of the Lord President and Councell of the North as he affirmed And wheras the Plaintiff keeps a common Inne in Otely and had kept it by the space of five years and had entertained men The Defendant requested the Plaintiff to keep the said Batersby in his Inne at Otely by the space of one night as a Prisoner and that he would keep and save him harmlesse and shew that he had kept him for that night as a Prisoner And Batersby afterward brought an action of false Imprisonment against him for the said keeping of him in his house and that he had expended and laid out in defence thereof ten pounds And that he had required him to save him harmlesse and he refused Non assumpsit found for the Plaintiff and moved by Harvey in Arrest of Iudgment that it is no sufficient consideration because it doth not appear that he had lawfully arrested the said Batersby for it is not affirmatively alledged but as he said Also it doth not appear that the recovery in the action of false Imprisonment was for the same cause but in that he had misinformed for it was in the Record Pro custodia praedicta ex causa praedicta And for the other matter the Lord Hobart seemed at first to doubt if it did not appear that it was a lawfull Arrest then there was no consideration But because the diversity when the consideration appears to be for doing of a thing which is unlawfull As if one at the request of I. S. promise to better I. D. and he promise to save him harmlesse this is a void Consideration But if one request I. S. to enter into the Mannor of Dale and drive out Cattle and that he will save him harmlesse if he doth so and after Trespasse be brought against him and recovery had he shall have his action So if a Sheriff pretending to have a Writ where he hath none arrest one and request an Inne-keeper to entertain him in his house or hire one to conduct the Prisoner to the Gaol and promise to keep him without Damage if an Action be brought and recovery had therupon the party shall have an action of the case against the Sheriff upon this promise for he which doth a thing which may be lawfull and the illegallity therof appear not to him he which imploys the party and assume to save him harmlesse shall be charged And Iudgment was entred for the Plaintiff Mich. 20 Jac. Parkers Case Debt Hue and Cry AN action of Debt was brought against the Hundred of _____ in the County of Stafford by William Parker upon the Statute of Winchester cap 1 2. reciting the Statute That forasmuch as Robberies do daily encrease Murthers and burning of houses and Theft be more often used then they have been heretofore Amendment of a false Abreviation and Felons cannot be attainted by the Oathes of the Iurors which had rather suffer strangers to be robbed and
in a Garden then minutae decimae And it was agreed by the Court that it might have been so found that it should be Majores decimae and prâ—â—diall as if all the Profits of the Parsonage consist of such Tithes And so of other things which in their own nature are minutae may become majores if all the profit of the Parish consist therin As in some Countries a great part of the Land within the Parish is Hemp or Lime or Hops there they are great Tithes and so it may be of Wholl and Lambs Beddingfields Case Pasch 3 Jac. in the Kings Bench Beddingfeilds case Farmer to the Dean and Chapter of Norwich who had the Parsonage Impropriate and had used to have Tithes of Grain and Hay and the Vicar had the small Tithes And a Feild was planted with Saffron which contain forty acres And it was adjudged that the Tithes therof belong to the Vicar Potmans case There was a Case in this Court as it was vouched by Henden 3 Jac. between Potman a Knight and another And the question was for Hops in Kent and adjudged that they were great Tithes but as for Hops in Orchards or Gardens these were resolved to belong to the Vicar as Minutae decimae There was a Case in this Court for tithe of Weild which is used for Dying and that was in Kent and it was sown with the Corn and after the Corn is reaped the next year without any other manurance the said Land brings forth and produce Weild And that was a speciall Verdict whether the Vicar shall have the tithe of it or the Parson but one of the parties died before any Iudgment And if Tobacco he planted here yet the tithes therof are Minutae decimae And all these new things viz. Saffron Hops Wood c. if it doth not appear by materiall circumstances to the contrary shall be taken as Minutae decimae And so this case was adjudged for the Defendant Hil. 1 Car. Townley versus Steele FRancis Townley and three others the Executors of William Peacock brought a Writ of Ravishment of Ward against Richard Steele and Anne his Wife for the Ravishment of the body of Ralph Smith Cosin and Heir of Ralph Smith In Ravishment of Ward brought by Executors are Non-suited whether they shall pay costs and count of the Tenure by Knights-service in Ralph Smith of William Peacock and that Ralph Smith died the said Ralph his Cosin and Heir being within age and that William Peacock the Testator seised of the body and died possessed therof and made them his Executors and they being possessed of the said Ward the Marriage of whom belong to them the Defendants Rapuere illum abduxere And upon Not guilty pleaded the Iury was at Bar and the Plaintiffs after Evidence were Non-suited And whether the Defendants shall have costs in this case was the question upon the Statute of 23 H. 8. cap. 15. or by the Statute of 4 Jac. cap. 3. And it being argued by Davenport and Attho the Court this Term the chief Iustice being absent gave their opinions And Iustice Crook argued that they should not have costs and put many cases when Executors bring actions they shall not pay costs and so is Common Experience after the Statutes which is the best Interpreter of the Law And if it should be otherwise Executors would be discouraged to bring actions for the debts of their Testator And Iustice Harvy was of the same opinion but Iustice Yelverton and Hutton to the contrary And they agreed that in all actions brought by Executors upon Contracts Obligations or other things made to the Testator there shall be no costs for that is not within the Statute viz. Contracts or Specialties made to the Plaintiff or if an action be De bonis asportatis in the life of the Testator or upon any Tort supposed to be done not immediatly to the Plaintiff there shall be no costs because that the Statute gives not costs in these cases 20 Mariae Debt upon a Demise for years if the Plaintiff shall be Non-suited there shall be costs for it is upon Contract though in some sort reall But in this case though the Plaintiffs are named Executors and their Title is derived from their Testator yet the action is brought upon an immediate Tort done to themselves and it is within the very words of the Statute and this Statute which is to prevent Vexatious Suits shall be taken favourably If Executors have a Lease for years and they demise it rendring rent and for Rent arrear they bring an action it shall be in the Debet and Detinet and they shall pay cost if they be Non-suited and yet their Title is as Executors but it is founded upon their own Contract so if they bring an action of Trespasse for the taking of Goods which came to their possession which Goods were in truth tortiously taken by the Testator and he died possessed therof and they being Non-suited they shall pay costs And Executors in actions brought against them shall pay costs and if they have no Goods of the Testator it shall be De bonis propriis And vide that upon Contracts made by them or Rent arrear in their time the action shall be in the Debet and Detinet vide Coke lib 5 Hergraves case But when Debt in brought by Executors and recovery had and after a recovery an escape and Debt upon this escape this shall be in the Deticet only according to the first cause of action And this Ravishment of Ward is an action within the Statute of 23 H 8. and the Statute of Westminster â— gives no Damages and therfore costs by the Statute of Glocester cap 1. and the Statute of 4 Jac. inlarge the actions and not the persons Hil. 1 Car. Beverley versus Power VPon an Assembly this Term of all the Iustices at Serjeants Inne by vertue of an Order of the Star-chamber made the last Term at reading the Case was Iames Beverley was Plaintiff against Robert Power Pardon and Mary Beverley and others which Bill was exhibited Hil 16 Iac. and the Bill was for scandalous matter not examinable in this Court and for other matter which was examinable and Witnesses examined and published And then the 19. of Febr. 21 Iac. the generall Pardon is made by Parliament by which all Offences Contempts and Misdemeanors del 20. Decemb. before except such Offences contempts c whereof or for which any Suite or Bill within eight years before was exhibited into the Star-chamber and there remaining to be prosecuted this last day of this present Parliament And afterwards viz. Mich. 1 Caroli the Cause came to hearing at the Suit of the Defendant and upon the hearing Power was fined two hundred pounds and for the abuse and contempt to the Court for exhibiting the scandalous matter the Plaintiff was fined five hundred pounds and for damage to the Defendant five hundred marks And yet because of the difficulty
Yelverton and I were opinion that the Debt is gone for it is at the suit of the King and Iudgment is given for the King And there shall be an answer to the King And we relyed upon the cases vouched by the Lord Coke but Iustice Harvey and Crook to the contrary And upon conference with all the Iustices of Serjeants Inne it was resolved that this action was at the suit of the party for he might be Non-suited vide 25 H 8. Br. Non-suit that the Informer may be Non-suited vide 6 E. 2. Fitz Non-suit 13. when the Iury come again to deliver their Verdict the King cannot discharge them and be Non-suited and the King cannot discharge this action And his Attorney reply not as in an Information Clotworthy versus Clotworthy Amendments Debt SImon Clotworthy brought an action of Debt against John C. Cosin and Heir of Bartholmew C. And the Imparlance Roll is Quod cum praedictus B. cujus consanguineus heres idem Johannes est viz. filius Johannis Clotworthy fratris praedicti B. C. And upon the Plea Roll upon which Iudgment is given this space was perfected and Iudgment for the Plaintiff and now the Defendant brought a Writ of Error and it was moved to be amended And if the Imparlance Roll shall be amended which is the foundation of the subsequent Rolls is the question For it is commonly holden that the Plea Roll shall he amended by the Imparlance but not e converso Hil. 18 Jac. Rot. 67â— Walker versus Worsley Amendments WAlker brought an action of Debt against Worsley Debt as Son and Heir of Thomas W. in the Imparlance Roll which was entred Mich 18 Jac Rot 576. the words which bind the Heir were omitted viz. Ad quam quidem solutionem obligasset se Heredes suos but they were in the Plea Roll And after Iudgment that was assigned for Error in the Kings Bench and it was amended in the Common Bench by the Court vide there that it was by the fault and mis-prision of the Clerk who had the Obligation and so amendable by the Statute of 8 H 6. cap 15. 1. Hil. 9 Jac. Rot. 516. Govard versus Dennet GOvard against Dennet and Iudgment and the name of the Attorney viz. Henry was omitted in the Imparlance Roll and it was in the Plea Roll Henry and after Error brought it was amended Mich. 16 Jac. Rot. 581. Arrowsmith's Case THe Imparlance Roll Trin 16 Jac Rot 1727. Debt for three hundred pounds against Arrowsmith for part sur emisset and the other part sur in simul computasset And in the Imparlance Roll both parcells did not amount to three hundred pounds but wanted six pounds therof and after Error brought it was amended Pasch 12 Jac. Rot. 420. Godhow versus Bennet REplevin by Godhow against Bennet divers spaces in the Imparlance Roll were supplyed in the Plea Roll after Verdict Hil. 12 Jac. Rot. 420. Parker versus Parker THe Imparlance Roll was Mich 12 Jac Rot 547. Parker against Parker in Trover and Conversion the Imparlance Roll wanted the day and year of the possession and conversion but the Issue Roll was after the Verdict and motion in Arrest of Iudgment amended Mich. 2 Car. Crocker versus Kelsey JOhn Canterson and Agnes his Wife Tenants in speciall tail had Issue a Son Lease made by Feme in speciall tail viz. John and John the Father died John the Son levied a Fine with Proclamations to the use of himself in Fee Agnes leased to John Herring and Margaret his Wife Lessors to the Plaintiff for one and twenty years rendring Rent c. by vertue wherof they entred Agnes died John the Son entred and afterward the said John Herring and Margaret his Wife entred And the said John the Son made his Will in writing and by that devised the Land to Kelsey the Defendant and another in Fee and died John Herring and Margaret leased to Crocker the Plaintiff who entred and being ousted by Kelsey brought Ejectione firmae And this speciall Verdict being found Iudgment was given for the Plaintiff and now affirmed upon Error brought in the Exchequer Chamber Mich. 2 Car. Franklin versus Bradell FRanklin a Woman servant brought an action upon the case upon a promise against John Bradell Consideration in an Assumpsit ex post facto And count that wheras she had served the Defendant and his Wife and done to them loyall service the Defendant after the death of his Wife in consideration of the service which the Plaintiff had done to the Defendant and his Wife promised to pay her thirteen shillings four pence upon request and alledged request and non-payment And after Verdict for the Plaintiff it was moved in Arrest of Iudgment upon the Book of 13 Eliz. Dyer that this is no sufficient consideration because that it is not alledged that the Plaintiff at the request of the Defendant had served him Also it was not sufficient because that it was done after the service performed And it was answered that it was a good consideration and that the service was to the benefit of the Defendant And therfore in consideration that the Plaintiff had married the Daughter of the Defendant he promise to pay twenty pounds it is a good consideration and so in consideration that you have been my surely to such a man for such a Debt I promise to save you harmlesse And in consideration that the Plaintiff was Baile for the Defendant he promised to give him a Horse this is good And in consideration that I.S. being a Carpenter had well built my house I promise to give him five pounds And Iudgment for the Plaintiff Hil. 2 Car. Hearne versus Allen. Entred 22 Jac Rot 1875. Oxford 1. RIchard Hearne brought an Ejectione firmae against John Allen Ejectione firmae for two acres of Land in Langham upon a Lease made by Anne Keene which was the Wife of Edward Keene and upon Not guilty pleaded a speciall Verdict was found Richard Keene was seised of an house in Chippin-norton Devise and of two acres of Land there in Fee and of two acres of Meadow in Langham in Fee used with the said Messuage which were holden in Socage And by his Will in writing dated the 20. May 30 Eliz. he devised the said house Cuni omnibus singulis ad inde pertinentibus vel aliquo modo spectantibus to Tho. K. and his Heirs for ever And for want of Heirs of him the said Thomas then to one Anne K. the Daughter of the Devisor and her Heirs for ever And for default c. then to Iohn K. his Cosin and his Heirs for ever And by the same Will devised his Goods and all his Lands to Eliz. his Wife during her Widow-hood and died Elizabeth his Wife entred Thomas the Son entred upon the Wife and disseised her and having enfeoffed one Edward K. in Fee died and Tho. K. also died without Issue Edward K. by his Will devised
to him and he will pay for the making therof that is a good consideration vide Coke lib 8. fol 147. And in this case all the Court were of opinion that the consideration was good for wheras he might have detained the Horse untill he had been paid for the pasture and feeding he at the speciall request of the Defendant had delivered the Horse to him to the use of the Owner which is to the prejudice of the Plaintiff and alienest to him to whose use he was delivered And Iustice Harvey vouched a case which was in this Court adjudged which was in consideration that the Plaintiff had promised to pay to the Defendant ten pounds at a day according to the Condition of an Obligation the Defendant promised to deliver the Obligation and adjudged a good Consideration Turner versus Hodges THe Custom of the Mannor of _____ is found to be for the Copyholders without the License of the Lord of the Mannor they being seised in Fee may make any Lease for a year Custom in a Mannor to make aâ— Lease for years or many years and when they dye that â—â—e 〈◊〉 shall cease and that the Heir or Heirs may enter It was moved in Arrest of Iudgment that this was a bad Custom and that the Copyholders had by Custom an Inheritance and might by the generall Custom of the Ream make a Lease for one year And that tenor the generall Custom of the Realm but the Custom of every Mannor within the Realm vide Coke lib 4. fol 26. in Melwiches Case Custom creates the Estate and the Custom is as ancient as the Estate and is casuall and upon the Act of God and is reasonable that the Heir who is to pay the Fine should have the Possession And yet a Custom that if the Copyholder had surrendred to the Lord that the Lease should be void had been a 〈◊〉 Custom because that he might subvert and destroy by his own act that Estate that he himself had made and he which took the Lease haâ—ing notice of the Custom takes the Lease at his perill for otherwise he might have procured the License of the Lord and then by this License the Lord had dispenced therwith and that is as it were the Confirmation of the Lord For if a Copyholder makes a Lease for twenty years with the License of the Lord and after dies without Heirs yet the Lease shall stand against the Lord by reason of his License which amounts to a Confirmation And the Plaintiff had Iudgment Hil. 4 Car. EJectione firmae was brought and count upon a Lease made by Husband and Wife Lease by Baron and Feme without reservation of any Rent and that was by Indenture And upon Not guilty pleaded a speciall Verdict was given in which the sole question was Whether this Lease was made by Baron and Feme being there was no Rent reserved therby It was objected that this Lease could not be made good by the Feme by any acceptance and therfore it is not the Lease of the Feme no more then if the Verdict had found that the Lease was by an Infant and no Rent reserved that had been a void Lease But it is contrary of a Baron and Feme for the Baron had power and the Feme joyning in the Lease it is not void for she may affirm the Lease by bringing a Writ of Wast or she may accept Fealty And so was the opinion of the Court and Iudgment entred accordingly vide Coke lib 2. fol 61. in Wiscots case Count of a Lease by Baron Feme and shew not that it was by Deed and yet good vide Dyer 91. Pasch 5 Car. Paston versus Utber JOhn Paston brought Ejectione firmae against Barnard Utber upon a Lease made by Mary Paston And upon Not guilty pleaded a speciall Verdict was found at the Bar and the Case was thus Custom that the Lord have a Feild-course over the Lands of his Coppyholders if the Tenant inclose it is no forfeifture Barnard Vtber seised of the said Land to him and his Heirs by Copy of Court-Roll according to the Custom of the Mannor of Binham And that within that Mannor there is such a Custom that the Lord had had one field course for five hundred Ewes in the North-field and the West-field wherof these fifteen acres were parcell from the Feast of Saint Michael if the Corn were inned and if it were not then after the Corn were inned untill the Feast of the Annunciation if it were not before that time sown again with Corn in all the Lands of the Copyholders not inclosed And that it is a Custom that no Copyholder may inclose any Copyhold Land without the License of the Lord And if any be inclosed without License then a reasonable fine should be assessed by the Lord or his Steward for the Inclosure if the Lord would accept therof And it is also a Custom that if the Lord will not accept therof then the Copyholder which so incloseth shall be punished at every Court after untill he open that Inclosure And the said Vtber inclosed the 15. acres with an Hedge and Fence of Quick-set 3. feet deep and 6. feet broad and that he had left 4. spaces of 9. feet broad in the said 15. acres And that the said Vtber was required by the Steward to lay open the said Inclosure and he did it not whereupon there was a command to the Bayliff to seise them as forfeit which was done And the said Mary being Seignoress of the Mannor entred and leased to the Plaintiff and the Defendant entred upon him Serjeant Davenport argued that it is a forfeiture and against the Custom which creates the Feildage for the Lord as well as the Estate of Copyhold for the Tenant and that this leaving of four spaces is a fraud and device and that it is against his Fealty and is to the damage of the Lord and a thing unlawfull vide Dyer 245. 34 E. 1. Formedon 88. 15 A 7. 10. 29 E 3. 6. That if the Tenant inclose the Commoner may break his hedges And though by Littleton an Inclosure which is a Disseisin is a totall Inclosure wherby he which hath the rent cannot come to distrain yet this also is an Inclosure because that it obstructs the feild-course for they cannot come so freely without interuption or damage for the hedges may deprive the Sheep of their wooll And he compared it to the case of 3 H. 7. 4. One is obliged to make an Estate of his Mannor of Dale if he alien part and then make a Feoffment the Condition is broken and vide 5 E 3. fol 58. a Recognizance with Condition to make a Feoffment to I. S. of the Mannor if he alien part therof he forfeit his Recognizance he vouched 42 E 2. 5. and Coke lib 4. that deniall of Services or making of Wast is a forfeiture 22 H 6. 18. 41 E 3. Wast 82. Dyer 364. And though that the Lord may
Court 12 E. a. granted a Rent-charge of two shillings out therof to John Milleton and Walter Milleton In Replevin one makes Conusance derive his Estate from one as Cosin and Heir and shews not how John Milleton dies and Walter survived and died seised and this Rent descended to one John Milleton of P. as Cosin and Heir to the aforesaid Walter and he was seised in Fee and one John Dinham was seised in Fee of one house and twenty acres of Land in Pensons and by Deed shewn in Court exchanged them with the said John Milleton for the said Rent and Walter de la Therne being seised of the Land out of which the Rent issued attorned and gave Seisin of the Rent to John Dinham wherby he was seised in Fee of the Rent and conveyed the Rent by three discents to this John Dinham for whom the Defendant makes Conuzance for ten shillings for five years arrear And the Plaintiff demurs generally upon the Conuzance And the cause was that it is not shewn how John Milleton is Cosin and Heir to Walter upon the discent First if it be good as this Case is viz. That he claimes not as Cosin and Heir but makes Title under him by conveyance afterwards Also because the Defendant makes Conuzance and is a stranger Secondly if it be but forme And this Case was argued at Bench briefly in Trin. 16. And I was of opinion because that this is the Conuzance of a Bayliff and it is a discent in one blood to which Dinham is a stranger and because that a good Issue might be taken therupon as it is alledged And if it had been a case of Bastardy the Iury might have tryell it therfore it is good by the Common Law and differs from a Formedon for there he which brings it is privy vide 41 Eliz. 13 14 in a Scire facias good without shewing how 33 H. 6. 34. Sir T. C. Case 27 H. 6. 2. 4 E. 3. 43. vide 19 E. 3. Quare impedit 58. And if it were not good by the Common Law yet it was but form and aided by the Statute of 27 Eliz cap. 5. vide in Doctor Leifeilds Case lib 10. fol 94. And Iustice Winch agreed with me but Warburton to the contrary and argued strongly that it was substance and was very materiall and he relied upon the Book in the 38 H 6. 17. and he put the cases of 11 H 6. 43. 8 H 6. 22. 2 H 2. and Wimbish and Talbois case Plowden There is debate and argued two against two and no Iudgment given because that it is not shewn Comment Cosin vide 2 H 5. 7. a good Issue there is no such Ancestor a generall Demurrer confesse not the matter as in Debt upon a Bill he plead payment and the Plaintiff demur that Demurrer doth not confesse the payment Lord Hobart would not speak of the Common Law but it seemed good to him by the Statute The Title of the Act is An Act for furthering of Justice Definitive Iustice and Interlocutery The Statute takes not away form but the intrappings and snares of form No place where the Obligation is made cannot be tried by them affirmatively Hough and Bamfields case matter and no form and so Dyer 319. But the point of Cousinage which comes by videlicet is form And if the case of Wimbish and Talbois had been at this day it should bee aided and Iudgment for the Defendant Sheriff ought to deliver the Moyety by meets and bounds IT was argued by the Court that upon an Elegit the Sheriff ought to deliver the Moyety by meets and bounds and if it be so that the Conuzor be Ioynt-tenant or Tenant in Common then it ought to be so specially alledged and contained in the return Pasch 16 Jac. Drury versus Fitch Case DRury an Attorney of this Court brought an action upon the case against Fitch one of the Serjeants of London for saying I arrest thee for Felony and after not guilty pleaded the Plaintiff was Non-suited Costs upon Non-suit where the Plaintiff hath no cause of action And now it was moved that no costs should be given to the Defendant because that the words will not beare action and therfore Iudgment shall be given Quod nil capiat per billam And they vouched one President in Grewstons case in Ban. Reg. vide that now by the last Statute costs shall be given to the Defendant in all cases where the Plaintiff should have costs if he recover but in such case where the Plaintiff if he recover shall not have costs the Defendant upon the Non-suit of the Plaintiff shall not have costs But it seemed to Lord Hobart that in this case the costs are for vexation and this is more vexation if he had no cause of action vide 29 H 8. fol 32. It is there resolved that an action lies for the costs notwithstanding a Writ of Error brought And the last day of this Term the Court was of opinion that the action lies for the words for it is more then these I charge thee with Felony and if the Action lies not yet the Defendant shall have costs for it was such an Action in which the Plaintiff ought to have costs if he recover Vpon motion in Court by the direction of Iustice Warburton who had caused a Iury to be drawn by reason of the slendernesse of the matter and for avoiding the charge of a speciall Verdict the Case was A Copyholder was a Lunatick and the Lord committed the custody of his Land to one which brought an Action of Trespasse Action brought by the Committee of a Lunatick which is a Copyholder and whether it ought to be brought by him or by the Lunatick was the question And the opinion of the Court was that the Committee was but as Bayliff and hath no Interest but for the profit and benefit of the Lunatick and is as his Servant and it is contrary to the nature of his Authority to have an Action in his own name for the interest and the Estate and all power of Suits is remaining in the Lunatick And it was ruled in this Court that a Lunatick shall have a Quare impedit in his own name vide Beverlies case Coke lib 4. the diversity between a Lunatick and an Ideot and H 8. Dyer fol 25. And though when Guardian in Socage as it was adjudged makes a Lease for years his Lessee shall have an Ejectione firmae yet there the Guardian hath the Interest and is accountable therfore But in this case the Committee hath no Interest but is as a Servant appointed by the Lord to keep the possession for him who is not able to keep it for himself Lord Hobart and the Court also agreed that the Lord of a Mannor hath not power to commit or dispose of the Copyhold of a Lunatick without speciall Custom no more then a man shall be Tenant by the Curtesie c. of a Copyhold
font and twenty years that then I. S. shall have the Land and it shall be good vide Dyer 33. Coke lib 10.46 Lampets case But Tuesday the eleventh of February the Lord Hobart by our direction because that we were streightned of time and Howell was so importunate for Iustice that we could not argue delivered the opinion of the Court that Iudgment should be given for the Defendant And he declared that as to the point of a Fee-simple which he called the mounting of one Fee-simple upon another we now declared no opinion But we all without difficulty resolved that this release of Noy be it a Condition or not had discharged it And as to him it is an Interest used by the Devise but not executed untill it happen And therfore in Lampers case there the Release discharged it for there he had no Title executed but vested and commenced and so may have Noy Howell the Plaintiff in this case and it is not like to an Heir in the life of the Father for be is a stranger and he hath no Title at all and yet his Release with Warranty bars him and here this Release is accompanied with Warranty of which nothing was spoken Also as to Noy it is a Condition according to the words of the Will and therfore sans question that Noy had barred himself The Vacation after Hil. 20 Jac. MEmorand That on Munday the seventeenth of February at Serjeants Inn upon the assembly of all the Iustices to take consideration upon the Statute of 35 Eliz. cap. 1. for the Abjuration of Sectaries the Atturney-generall and Serjeant Crew being there Resolutions upon the Statute of Eliz. cap. 1. concerning Sectaries after the perusall of the Statute and the Continuances therof it was first upon debate considered whether this Statute was in force or discontinued and upon the perusall of the Proviso in the Statute of Subsidy and upon reasoning the matter these Points were resolved 1. If a Parliament be assembled and divers Orders made What shall be said a Session of Parliament and a Writ of Error brought and the Record delivered to the higher house and divers Bills agreed but no Bills signed That this is but a Convention and no Parliament or Session as it was An. 12 Jac. in which as it was affirmed by them which had seen the Roll it is entred that it is not any Session or Parliament because that no Bill was signed vide 33 H 6 Brook Parliament 86. every Session in which the King signes Bills is a Parliament 2. It was agreed that if divers Statutes be continued untill the next Parliament or next Session and there is a Parliament or a Session and nothing done therin as to continuance all the said Statutes are discontinued Beriatim Jones Chamberlain Hutton Denham Haughton Dodderidge Winch and Bromley declared their opinions that this Statute is discontinued And that the Statute of Subsidy is a Parliament and that every Parliament is a Session but not e converso for one Parliament may have divers Sessions as the Parliament 1 Jac had four and ended An 7 Jac. vide 33 H 6. Br. Parliament 86. And that this Proviso is not to any other purpose but to continue their proceedings in the same Estate as if this Act had not been made and if this Proviso had not been then this Statute had been discontinued by this act of Subsidy but when this ends and is determined then is the Session ended then it is a Session scilicet a Parliament which ought to be pleaded at the Parliament holden c. and all the Commissions of Subsidy are accordingly and the Proviso call it a Session Then this being done the Lord chief Baron did not deliver any opinion for he said that he had not considered the Statute and afterward it was desired that the Lords would deliver their opinions and therupon the Lord Hobart declared his opinion accordingly That it seemed to him that it was a Session and that it was not safe to meddle with such Law and that he would never refuse to declare his opinion with his Brethren After the Lord chiefe Iustice Ley made a long discourse concerning the purpose and intent of Parliament scilicet That it was not their purpose to destroy so good Lawes and therfore it was not any such Session as was within the intent of the preceding Parliament which was that these should determine when it is a Parliament or Session in which good Lawes are made And Doderidge said that it was fit to see the Commission and that that which hath been said was not to bind any one but every one spoke what then he was advised of and peradventure might change upon better consideration And afterwards upon Tuesday on an Assembly of the two chief Iustices the chief Baron Iustice Haughton Baron Denham Hutton Chamberlain and Jones the Attorney-generall brought the Commission de 12 El. June 1. and that had these words Pro eo quod nullus Regalis Assensus nec responsio per nos praestat fuit nullum Parliamentum nec aliqua Sessio Parliamenti lata aut tent fuit They have power to adjourn this Parliament thus begun And the Commission to dissolve this Parliament 38. Feb. An. 19 Jac. had the same words saving that he recite that he had given his Royall assent to an act of Subsidy by which was intended that it should not be a Session And upon view of the Commission the Lord chief Iustice moved that the King was mistaken in this that he had given power to dissolve this Parliament which had not any Session and if it be a Session then he had no power to dissolve it and then it is as it were a recesse and a Parliament cannot be discontinued or dissolved but by matter of Record and that by the King alone and if the Parliament yet continue then this Statute also continue during the Parliament by the Proviso but that would not serve for first it is against the intent of the King and against his Proclamation And also the case is truly put in the Commission as to the matter in fact and he is not mis-informed but mistaken in the Law and then the Commission for the dissolving is good semblable to the Lord Shandoi's Case and other Cases vide in Cholmleys case But because that all the Iudges were not at this Conference therfore it was deferred untill the next Term and in the interim the Grand Secretary and the Attorney-generall were to inform the King that the Statute is obscure and had not been put in ure and that we could not agree Mich. 20 Jac. Rot. 2805. Bawtry versus Skarlet Sussex JOhn Bawtry Clerk Case brought an action upon the case against Benjamen Skarlet one of the Attorneys of this Court by Bill and count In consideration that the Plaintiff will confesse Judgment the Attorney promise to defer the entry of the Judgment c. that wheras one William Carter Trin. 20 Jac.
when the Plaintiff is supposed to speak Treason and it might be when he was an Infant or that it is pardoned To which it was answered by the Court First That these words ought to be alledged as they were spoken and that was Indefinite 2. The time is not materiall unlesse the Defendant make it materiall by his plea viz. When he was in giving Evidence for the King against a Traytor and then he repeated such words or when that the Plaintiff was frantick and of that he intended and so justifie there the time may come in question 2. The second Exception was that there is not any expresse affirmative to that it was answered by the Court that it was more then an Affirmative for he had as he said proof therof and not a report or hearsay And if one say it is reported c. that will not bear action unlesse he justifie the report by charging it upon him which was the Author of the report 3. Also it was objected that the speaking of treason was not treason But it was holden clearly that it is as well as Preaching or writing Et Index animi Sermo 4. Also it is not said what treason and it may he high or petit treason To which it was answered that when he speaks generally of treason it shall be intended according to the common intendment which is treason against the King vide Sir William Mulgraves case Coke lib 4. And two Cases were vouched to be adjudged in the Point Johnson and Atewod one between Johnson and Atewood 8 Eliz. Thou hast spoken Treason and I will hang thee for it adjudged actionable The other was between Pewall and Vardoffe Pewall and Vardoffe 9 Jac. Thou hast spoken treason and I will prove it adjudged actionable And it was resolved by all that the Plaintiff should have his Iudgment Flight versus Gresh Case THomas Flight brought an action upon the case against Gresh and count that wheras the Plaintiff and one Baleman were bound in an Obligation to the Defendant In consideration that the Obligor pay the summ the Obligee assume to deliver the Bill for the payment of such a summ at such a day The Defendant in consideration that the Plaintiff would pay to him the laid summ at the day assumed to deliver the Obligation to the Plaintiff and shewed that he had paid the money at the day and the Defendant did not deliver it but after sued it and recovered and had the Plaintiff in prison in execution by the space of a year The Defendant protestando that he did not assume for plea saith that the Plaintiff did not pay it and therupon Issue and found for the Plaintiff And it was moved by Serjeant Gwin that this action lies not for want of consideration for the Plaintiff did nothing but that which he was obliged to do and no profit to the Defendant for if he had not paid the summ the Obligation had been forfeited And he resembled it to the case of 9 E 4. 19. An accord in Trespasse that the Defendant should deliver to the Plaintiff his Evidences and permit him to enter into his Land is no good Bar So in an Arbitrement 12 H 7. that the one permit the other which was disseised to enter and that he should give to him his Charters and Evidences is not good And he vouched one to be resolved in the Kings Bench Greenwood and Becket between Greenwood and Becket where one had forfeited three Bills in consideration that the Plaintiff will pay the three severall summs three daies after he would deliver them to the Plaintiff And the Court was of opinion that it was no sufficient consideration Richardson to the contrary and said that the payment without Suit was for the advantage of the Obligee to be sure of his money and may be more available to him at this time then the forfeiture afterwards And he vouched a Case to be adjudged that where one had bought Cattle in a Market and had paid for them and the party which had bouoght them because that he which bought them had them in possession and would not deliver them in consideration that the party would deliver them promised to pay him a certain summ an action lies therupon And the opinion of the Court was that the action lay for for any thing that appears the monies were paid before the time that in Law they might be paid viz. before the setting of the Sun And it is without question if a man to whom money is to be paid come to the party the same day and pray him to pay it in the morning and that in considerations therof promise to pay him five pounds to abate five pounds or to deliver an Obligation this is good And a voluntary promise to do that which is in good conscience good and just for him to do shall bind him and the rather because he had benefit viz. to be sure of the performance And the forfeiture is but means to obtain the principall summ And if one had Iudgment and in consideration that he will not sue execution the other promise to pay it is good And because that in this case it appears that by the non-performance of this promise the Plaintiff had prejudice and the Iury had found solvit the Plaintiff had Iudgment Hil. 21 Jac. Rot. 3150. Trevors versus Michelborne EDmond Trevors brought a Scire facias against Michelborne Sheriff of Surrey Sci. fac Sci. fac against the Sheriff for taking of insufficient Pledges for the returning of insufficient Pledges in a Replevin brought by one Ray against the now Plaintiff in which the said Richard Ray made default wherupon a Retorn habend was awarded an Averia elongata returned and then a Withernam and then a Nichil c. And for this taking of insufficient Pledges this Scire facias is brought upon Westminster 2. cap. 2. And the Defendant demurred Somerford and Beamont vide the lake President Hil 11 Jac. Rot. 3563. between Somerford and Beamont Hil. 1 Car. Uvedall versus Tindall Enter Hil. 21 Jac. Rot 705. Southamp SIr Richard Uvedall brought an action of Trespasse against William Tindall Clark Vicar of Alton Trespasse What things are smal tithes and what great and John Loveland for taking bona Cattella and count for the taking of two Carectac glaci Anglice Wood And upon Not guilty pleaded the Iury gave this speciall Verdict Viz. For the Moyety of a Lead of Wood Si videbitur Curiae quod decimae glasi ne sunt minutae decimae then the Defendants not guilty but si sunt minutae decimae then they are guilty And this case was argued at Bar by Serjeant Bridgeman adn Serjeant Henden And the Court unement agreed that for ought that here appears this Verdict being found without any circumstance that this Wood shall be taken to be Minuta decimae It was agreed by Henden that if it had been found Wood growing
use of the Kings Bench is never to enter the Admission but only to recite it in the Count vide 11 H 7. Rot 412. In a Writ of Right by Baron and Feme and another Feme Infants there per custodes good vide 8 E 4 5. for the Mainprise entred in another Term lib Intractionum fol 366. It was vouched by Croke and affirmed by Yelverton in one Simpsons case in Durham Simpsons case where the Tenant was by Prochein amy where it should be by Guardian was Error The Presidents are that an Infant when he sue may be by Guardian or Prochein amy the one or the other but when he is sued it shall be by Guardian Mich. 3 Car. Wolfe versus Hole WOlfe an Attorney Plaintiff against Hole by a Writ of Priviledge Amendment and he Count upon an Assumpsit And after Verdict given and Iudgment a Writ of Error was brought and moved that there was a default in the Imparlance Roll viz. fault de trover pledges which was as it ought to be in the Plea Roll And it was moved that it might be amended and after debate at Bar by Henden and Davenport it was resolved that the not finding of Pledges is not matter of form but matter of substance and it concerns the King for if the cause to amerce the Plaintiff the Iudgment is Ideo le Plaintiff ses pledge sont Amerce and that it is not aided by the Statute of 18 Eliz. quod quaere and vide 12 Eliz Dyer 288. there is a Case written by me that An 17 Jac was amended after the Verdict and in one Hillaries case and vide thâ—re in Dyer that the Plaintiff when he is sued by Priviledges ought to find pledges and that as well as when a Bill is filed against an Attorney But now because that it was assigned for Error and that if it be amendable the Iustices of the Kings Bench would amend it this Court would not but if it had been in the Imparlance Roll and omitted in the Plea Roll it should be amended vide 18 E 4. 9. that Pledges may be entred at any time Hil. 2. Car. Rot. 565. Hilton versus Paule RIchard Hilton brought an action of Trespasse against Robert Paule Trespasse Which shall be said a Parish Church within the act of 43 Eliz. for the maintenance of thâ— poor for the taking of a Saddle at Stoke-Goldenham And upon Not guilty pleaded the Iury gave a speciall Verdict Viz. That the Parish of Hinkley was de temps dont memory c. and yet is an ancient Rectory and a Church Parochiall And that the Town of Stoke-Goldenham is an ancient Town and parcell of the Rectory of Hinkley And that from the time of H. 6. and afterwards untill this time there hath been and is in the Town of Goldenham a Church which by all the said time hath been used and reputed as a Parish And that the Inhabitants of Stoke-G by all the said time had had all Parochiall Rights and Church-wardens And that the Towâ—â— of Stoke-Goldenham is distant two miles from Hinkley And the Verdict concluded it it should seem to them that Stoke Goldenham is a Parish for the relief of Poor within the Statute of 43 Eliz. cap. 2. then they find for the Plaintiff if not for the Defendant And this Case was argued by Serjeant Barkley and he vouched Linwood fol 89. and said that there is Ecclesia major minor and a dependant Church upon the principall and another Church and which is found to be used and reputed ergo it is not a Parish And that the Exception of the Chappell of Foulnes which by the Statute is made a Parish proves that Chappell and Parish are not within the Statute he vouched 4 E 4. 39. and 5 E 4. to prove that divers Town may be one Parish And the Lord Richardson said that it is a clear case that this is a Parish within the intent of the Statute of 43 Eliz. for the relief of Poor And that the Church-wardens and Overseers of Stoke-Goldenham might assesse for the relief of the Poor And though it be found that after the time of H. 6. and untill now it had been used as a Parish Church that doth not exclude that it was not used so before And a Reputative Chantery is within the Statute of Chantries 1 E 6. And this Statute being made for the relief of the Poor and that they might not wander therfore the intent of the Statute is to confine the relief to Parishes then in esse and so used And every one of the Court delivered their opinion and concurred And so Iudgment was given for the Plaintiff Hil. 3 Car. Peto versus Pemmerton Mich. 3 Car. Rot. 414. Replevin SIr Edward Peto Knight brought Replevin against Robert Pemmerton and Giles Thompson The Defendants made Conusance as Bayliffs to Humphrey Peto Where Grantee of a Rent-charge takes a Lease of part of the Land and surrenders it the Rent shall be revived and that Humphrey the Father of the said Humphry was seised of the place in which c. in Fee and by his Deed granted the Rent of six pounds to the said Humphrey his Son for life out therof to Commence after the Death of the Grantor and shewed that Humphrey the Father died and for Rent arrear c. The Plaintiff in Bar to the Avowry confesse the grant and seisin of the Land and that the said Humphrey died seised of the Land out of which the Rent was granted and that that descended to William and from William to the Plaintiff who entred and demised to the said Humphrey the Son parcell of the Lands unde c. for five hundred years by force of which Lease the said Humphrey had entred and was possessed The Defendants replyed that afterwards and before any part for which they made Conusance was arrear the said Humphrey the Son surrendred the said Lease to Sir Edward Peto to which surrender the said Sir Edward agreed wherupon the Plaintiff demurred And this Case was argued by Henden and he said that when the act of him which had the Rent made the suspension his act alone could not revive it But a Rent suspended might be revived by the act of Law or by the joynt act or agreement of the parties by whom the suspension was made 21 H. 7. 7. 19 H 6. 4. 19 H 6. 45. 7 H 6. 2. As for the personall things when they are suspended they are extinct unlesse it be in auter droit as if Feme Executrix take the Debtor to Husband and the Baron dies the Wife shall have an action of Debt against his Executors One reason in this case is because that by the surrender which is accepted the Contract is determined and that is by the act of both And by the surrender the Estate for years is extinguisht to all purposes as to that to which the surrender was made as if he had granted a Rent now it shall
And the proof therof see Coke lib 6. fol 19. Gregories case and Dyer 236. a. Then the principall and sole point will be if this Offence will be by the act of 33 H 8. cap 10. made presentable and punishable by the Iustices of Peace at their six weeks Sessions and it was unanimously agreed that it is not First because the preamble of the act recite that the Offences recited therin escape punishment and for their more speedy and effectuall punishment and repeat the particulars but therin name not Brewers by expresse words and it cannot be intended that the intent of the Statute was to give them at their six weeks Sessions to intermeddle with things not determinable at their generall Sessions And it was objected by Aâ—tho that Lambert and Crompton had put it as an Article of their charge To which it was answered that it was in some respect inquirable at Common Law viz. Misdemeanors in Bear-brewers Conspiracies and agreements to sell at such prises and the making of wholsome Beer Also it might be that they â—ake the Law to be upon the Statute of 23 H 8. that the Sessions being a Court of Record was within this act that saies in any Court of Record And then if it be not suable by Information before the Iusticeâ— of Peace the consequence is plain that the Statute of 21 Jac. cap 4. extends not therto and the Statute of 37 of H 8. makes not any thing in this case but tolls the six weeks Sessions and makes it inquirable at the generall Sessions Ideo Iudgment for the Informer June 19. An. 22. Jac. MEmorand That upon a Conference at Serjeants Inn in Fleet-street it was resolved and agreed by the Lord chief Iustice Sir James â—ea the Lord Hobart Baron Bromley Baron Denham Iustice Hutton and Iustice Jones That any one may erect an Inn for lodging of Travellers without any allowance or License Resolutions concerning Innes and who may keep an Inne and how they may be suppressed as well as any one before the Statute of 2 E 6. might have kept a Common Alehouse or as at this day one may set up to keep hackney Horses or Coaches to be hired by such as will use them And all men may convert Barley into Mault untill they be restrained by the act of Parliament made for that purpose And as all men may set up Trades not restrained by the Act of 5 Eliz. which directeth no man that hath not been bound or served as an Apprentice by the space of seven years or by restraint of setting up Trades in Corporations by such as be not free by the like reason all men may use the Trade of Inne-keeping unlesse it could be brought to be within the Statute of 2 E 6. which hath never been taken to be subject to that Statute in point of license And vide that an Hostler is chargable to the party which is his Guest for the restoring of that which is lost in his House and that by the Common Law of the Realm vide 11 H 4. fol 45. see also 11 H 4. fol 47. That in an action upon the case brought by the School-master of Glocester for erecting another School to his prejudice adjudged that no action lies and also it is there said that if I have a Mill and another erect another Mill by which I lose my Custom no action lies unlesse he disturb the water And it was said by the chief Iustice that it was so resolved before by the Iudges and that Iustice Doderidge Iustice Haughton and Iustice Chamberlain were of the same opinion and so now was my Brother Crew the Kings Serjeant who went the Circuit of Surrey Kent and Essex but the chief Baron Tanfield was of a contrary opinion And it seemed to him that Innes were licensed at first and Originally by the Iustices in Eire but nothing could be shewne to that purpose But all the Iustices were of a contrary opinion and said that that was the ground that begot the Patent and Commission to Mounperson viz. That the King might licence them if the Iudges might And it was said by the Lord chief Iustice that there was not any such thing in the Eires but because that strangers which were aliens were abused and evilly intreated in the Inns it was upon complaint therof provided that they should be well lodged and Inns were assigned to them by the Iustices in Eire The second question was if an Inn be erected in a remote and inconvenient place so that it is dangerous to Travellers and there harbour men of bad same which are apt to commit Robbery whether that might be suppressed And as to that all agreed that it is a common Nusance and may be suppressed and that to be by Indictment and presentment to which the party may have his Traverse The third question was whether when one which had erected an Inn be a man of bad behaviour and such a person as is not fit to keep an Inn how it should be aided and helped And it was agreed by all that upon Indictment or presentment therof he may have his Traverse and if he be convicted then to be suppressed viz. that he which had so misdemeaned himself should not keep it as an Inn nor use it But that it being an Inn it may be used afterwards by another Fourthly how and by what way or means the multitude of Inns might be prevented by being suppressed or redressed upon complaint or how the number might be stinted This Point seemed to be difficult and to contradict the resolution upon the first question And therfore it was agreed that they should advise concerning it and the best way is that they be strictly inforced to keep the Assise and not to suffer any to tipple in their Inns and by this way they would desist from their Trade Mich. 4 Car. Mackerney versus Ewrin RIchard Mackerney brought an action upon the case against Jeffrey Ewrin and count Case That whereaâ— one I. S. was indebted to the Plaintiff in seven pounds four shillings for pasture feeding and Oates for an Horse kept in the Stable of the Plaintiff Consideration in an Assumpsit The Defendant in consideration that the Plaintiff at his request would deliver the Horse to him to the use of the said John S. promised to pay the said seven pounds four shillings And upon Non Assumpsit pleaded and Verdict for the Plaintiff Serjeant Callis moved in Arrest of Iudgment that it is no good consideration for the Plaintiff had not any property in the Horse and he is not is do any other thing then the Law injoyn him to do As if I lose my goods and another find them and in consideration that he will deliver them to me I promise to pay him two hundred pounds that is not sufficient matter to ground an Assumpsit therupon But if a Taylor had made a Sute of Apparell for I. S. and I. D. request him to deliver it
proceed by fiue to enforce him to lay it open yet these Affirmative Customs do not toll the Negative And to prove that the Lord had an Inheritance therin he vouched 14 E 2. Fitz. Grant 92. A Rent granted to one and his Heirs out of the Mannor of Dale which he hold of the Mannor of D. this is an Inheritance And if this shall not be a forfeiture then this Customary Inheritance which the Lord had in the feild-course might be tolled at the will and pleasure of the Copyholder Serjeant Hitcham argued strongly to the contrary First That it is no Inclosure because that all is not inclosed Secondly The forfeiture of a Copyhold is alwaies by some thing done to the Copyhold land it self but this is done as it is supposed to the feild-course of the Lord which is not Copyhold and it is better for the Copyhold and makes the land better and also the Feild-course is therby made better and more beneficiall to the Lord and therfore the Copyhold land is not altered but is meliorated and it is like so the case in Dyer 361. Althams case after no Wast done the Evidence was that a Trench was made in a Meadow by which the Meadow was Meliorated and adjudged no wast which might be given in evidence But he said that in Brooks case at the first comming of Popham to be chief Iustice it was adjudged that if a Copyholder build a new house it is a forfeiture for that altoreth the nature of the thing and put the Lord to more charge So if Tenant for yeare makes a Hay-yard in the land that is wast He said that this Custom is qualified by taking a Fine if he would or by imposing a pain in the Court to enforce the Defendant to lay it open And all the Court were of opinion that this is no forfeiture for the reasons before and that this Feild-course is a thing which commence by agreement and is but a Covenant and not of common right And Forfeitures which are odious in Law shall be taken strickly Trin. 5 Car. Starkey versus Tayler Case STarkey an Atterney of this Court brought an action upon the case against one Mr. Tayler of Lincolns Inn for saying of these words to him Words Thou art a common Barretor and a Judas and a Promoter And it was moved in Arrest of Iudgment that these words maintain not action for the generality and uncertainty that he shall be called a common Barretor And the chief Iustice seemed to be of opinion that those words are not more then if he had said That he was a common Brabler or Quarreller But it was urged by Serjeant Hicham that the action lies and that it is a generall Rule Quod sermo relatur ad personam As in Birchley's Case He is a corrupt man And in Mores Case it was said of an Attorney That he was a cousening Knave And if these words were spoken of a common person he doubted if they were actionable but being spoken of an Attorney action lies And if these words were spoken of Iudge without doubt they were actionable And in this case being spoken of an Attorney who is a Minister of Iustice and who hath the Causes of his Clients in his hands to gain them or to lose them The Statute of Westminster saies the Sheriffs are charged to expell all Barretors out of their Countries And in the Statute of 34 E. 3. is the description of a common Barretor and his punishment who is a stirrer of false and unjust Suits and that he shall be imprisoned during the pleasure of the King bound to his good behaviour and fined And Littleton in his Chapter of Warranties faith they are hired to keep Possessions and therfore an action lies But to say of another man That he is a common Barretor is not actionable unlesse he saith that he is convicted Hil. 3 Car Rot. 1302. Watt versus Maydewell Leicest WIlliam Watt brought an Ejectione firmae against Laurence Maydewell Where acceptance of a new Lease for years makes a surrender of the former upon a Lease made by Robert Rome upon Not guilty and a speciall Verdict found the Case was thus Francis Griffith seised of Land in Fee by Indenture bearing date the fourteen of November and 14 Iac. demised the said Land wherof c. for one and forty years to Robert Rome rendring two shillings Rent to commence from the Annunciation which shall be An 1619. and after the same year by another Indenture bearing date the third of December 15 Iac. to commence from the Annunciation last demised the same Lands for ninety nine years to Dame Frances Perroint who entred and was therof possessed And after that the said Francis Griffith by another Indenture the same year bearing date the fourteen day of November 16 Iac. to commence from the seventeenth of November An. 1619. devise it to the said Robert Rome for one and forty years who accepted it and afterwards entred and being possessed made his Will and appointed Executors and died the Executors administred and made the Lease to the Plaintiff who was possessed untill he was ousted by the Defendant And the only question of this Case was if the acceptance of the second Lease by Robert Rome had determined discharged or extinguished the former Lease And after Argument it was adjudged for the Plaintiff the reason was because that by the Lease made to the Lady Perpoint for ninety nine years and her Entry Francis Griffith had but a Reversion and could not by his Contract made afterwards with Robert Rome give any Interest to Robert Rome This Lease made to Robert Rome viz. his former Lease was good in Interest being to commence at a day to come and is grantable over and may be surrendred or determined by matter in Law before the Commencement therof as if he take a new Lease to commence presently which see in 37 H. 6. 29. 22 E. 4. for it tuures in Contract And in this case it had been without question that the taking of the new Lease had been a surrender of the former if it were not by reason of the Lease for ninety nine years which is for so great a number of years that disables him to contract for one and forty years 37 H. 6. 17. 18. 14 H. 7. 3. Dyer 140. Vide Smith and Stapletons case in Plowden If a man makes a Lease for one and twenty years and after makes a Lease for one and twenty yeares by Paroll that is meerly void but if the second Lease had beene by Deed and hee had procured the former Lease to Attorn he shall have the Reversion vide Ive's Case Coke lib 5. fol 11. there it is adjudged that the acceptance of a Leese for years to Commence at a day to come is a present surrender of a former Lease These Cases were vouched in this Case Baker and Willoughby Serjeant Bakers Case in the Court of Wards with the Lady Willoughby that a
Peter Edgecombe and it was to the intent of granting the Rent to the King and his Heirs and then of the recovery of the Mannor out of which c. to the said Sir Peter Edgecombe in tail the remainder to the King and they being seised by their Deed dated the third of June 11 H 8. sealed and delivered which is found in haec verba and that it was inrolled afterwards viz. 7. June granted the said Rent to H 8. Et si super totam materiam the Court adjudged it a Grant by Deed the third of June 11 H 8. then for the Defendant c. And upon Argument at Bar and conference had we all declared our opinion and agreed that Iudgment should be given for the Defendants The first reason was that the Issue is joyned upon the Grant modo forma and not upon the day as is offered by the Traverse but upon the Grant modo forma And the matter found is generally as is alledged vide Littleton Title Release that modo forma avoid and prevent the matter of day and goes solely to that which is materiall And by any thing which appears by the Verdict there is no intervening matter after the third day and before the seventh when the Deed was enrolled and then it is a good Grant of the third of June vide H 7 31. Then the speciall Conclusion found which is contrary to Law shall not conclude the Iudges to give Iudgment according to Law And so Iudgment was given for the Defendants Mich. 8 Car. Col. versus Wilkes SAmpson Cole brought an action of Debt upon the Statute of 2 H. 6. against Leonard Wilkes Tryall at the Bar Debt Debt upon the Statute of the 2 E. 6. for Tithes A Lease was made to two they enter and occupy and set not out their Tithes Debt was brought against one of them it lies not But here it was found that one only occupyed the Land and therfore the action well lies Sir John Gerards case And a Case was shewn Mich 8 Jac. An action of Debt was brought upon this Statute by Sir John Gerard against two Tenants in Common and it appeared that one of them set out his Tithe and that the other afterwards took it and carried it away and adjudged that the action lies only against him which carried it away Pasch 9 Car. Strilley's Case Amendment of the proclamation of a fine VPon motion made in this Court for the amendment of a Proclamation of a Fine levied by Strilley of Lands in Nottinghamshire Mich 11 Eliz. The Proclamations endorsed by the Chirographer upon the Fine were well but in the Transcript and Note of the Fine which is delivered to the Custos brevium by the Chirographer according to the Statute the second Proclamation was entred to be made the twentieth of May where it should have been the twenty third day of May and that by the misprision of the Clerk And it was moved that that might be amended And the Court was of opinion that it should be amended for the Ingrossement upon the Fine by the Chirographer is the foundation and that being well it is sufficient Warrant to amend the other And the Court was of opinion that it was a good Fine without any amendment But it being the misprision of the Clerk it shall be amended as in the case Coke lib 8. Blackamores case The Proclamation made and entred before the Originall shall be amended And it was objected that this Fine and Proclamations as they found in the Office of the Custos brevium are exemplified under the Great Seal and therfore by a Clause in the Statute of 23 Eliz cap. 3. could not be amended after such exemplification To that it was answered that that Statute extends only to Fines before levied which should be exemplified before the first day of June An 1582. And the latter clause in the said Statute doth not extend but to Fines exemplified according to the said Statute And therfore it was awarded to be amended Pasch 9 Car. Glasier versus Heliar Sussex Case GLasier brought an action upon the case for words against Heliar and shewed that three Colliers being in an house in Sussex were feloniously burnt in the said house and shewed that two or three men were indicted convicted and executed for the said Murther the Defendant knowing therof and intending to bring the Plaintiff in perill of his life Words as accessary to the said Murther sayd to him Thou didst bring Faggots a mile and a half to the burning of the Colliers And after Verdict for the Plaintiff and motion in Arrest of Iudgment it was adjudged that the words were actionable For if a Mansion-house be burnt feloniously to say You brought fire to set in the Thatch of the house which is burnt it is actionable Iudgment pro quaerente Smith versus Cornelius Southamp JOhn Smith Town-Clark of Southampton Case brought an action upon the case against one Cornelius an Attorney of this Court and shew that the Plaintiff was of good fame and Town-Clark of the Major and Burgesses of Southampton and was their Scribe and had the custody of all Rolls Pleas and Certificates Words and other proceedings before the Major and Burgesses in the Court before them to be holden And the Defendant intending to draw him into Infamy and to cause him to lose his Office said to him Thou hast made many false Certificate to the Major and Burgesses in that Court and the more thou stirrest in it the more it will stink And it was adjudged that these words are not actionable 1. Because that it is not alledged that there was any Colloquium concerning his Office of Town-Clark 2. Because that it appears not in the Count that the making of Certificates belong to his Office but only that he had the custody of them 3. It might be false and yet no blame to him if he did know them to be false or that he had made them false maliciously And therfore Iudgment was given for the Defendant And this Case was moved again by Hitcham the first day of Trinity Term next And then Iudgment was affrmed Hil. 9 Jac. Edwards versus Laurence Trin. 9 Car. Rot. 2488. Suff. RAchel Edwards brought an action of Trespasse against Richard Laurence for breaking of her Close Trespasse The Defendant in Bar to the new Assignment plead Traverse of Seisin that before the time of the Trespasse supposed to be done one Francis Tayler was seised in Fee of the Tenements wherof c. and so being seised died wherby it descended to Francis his Son and Heir who being seised therof 8 Car. demised it to the Defendant for two years by vertue wherof he entred and gives colour to the Plaintiff by a Grant made to him by Francis the Father where nothing passed therby and so iustifie The Plaintiff replyed that long before Francis Tayler the Son had any thing one Francis Tayler Grand-father of
and Iudgment against the Plaintiff 8 E 4. 3. 21 E 4 2. Lit. 264. b. 20 E 4. 17. If the Debtee makes the Debtor and others his Executors the Debt is discharged Mich 9 Car. Banco Regis Rot 373. Anne Dorchester Executrix of Anne Row Dorchester and Webb Plaintiff against William Webb in Debt upon an Obligation of five hundred pounds the Defendant demanded Oyer wherby it appears that the Defendant and one John Dorchester were obliged joyntly and severally in the said Obligation The Defendant plead in Bar that the said John Dorchester made the Plaintiff his Executrix who proved the Will and had Goods sufficient in her hands to pay the said Debt The Plaintiff reply that before the death of the said Anne Row the Obligee she had fully Administred all the Goods of the said John Dorchester Demurrer and Iudgment for the Plaintiff And in this case it is not shewn that the said Francis and Peter or any of them proved the Will of the said Obligee or that they administred his goods or that they had any goods of the Obligor to administer at the time of the death of the Obligee as it ought to have been shewn And the said Francis Executor of the Obligee and also of the Obligor refused to be Executor to the Obligee and never Administred and never meddled with the Goods of the Obligee and so the Debt is not released in Law as by the said Case and former Iudgment appears This case had been often argued by Serjeant Hedley and of the other part by Serjeant Hitcham and affirmed that once Iudgment was given for the Defendant but it yet depends Trin. 12 Car. MEmorand Vpon Petition exhibited to the King by the Prisoners of quality which were in execution in the Fleet Liberty may not be given to Prisoners by force of a Habeas Corpus Kings Bench and Marshalsey to have liberty in the time of Infection and for preservation of their lives to have liberty by Writs of Habeas Corpus to go into the Country upon security to be given to the Warden and Marshall for their return The King out of his great care of their safety referred their Petition to the Lord Keeper Coventry and that he with the advice of the Iudges should consider by what way it might be done And the eighteenth day of June we attended the Lord Keeper at Durham-house And therupon conference and consideration of a former Resolution which was at Reading in Mich. Term last before the said Lord Keeper where were present all the Iudges besides my self That these abusive Habeas Corpus were not lawfull and that the Warden and Marshall were then called and warned that they should not suffer their Prisoners to go into the Country as they had used to do by colour of such Writs This which followes was subscribed WEE are of Opinion that the Writ of Habeas Corpus is both Ancient and Legall But as the Writ doth not so no Rule can Authorize the Keeper of the Prison to give liberty to his Prisoner by colour of such Writ but the same is an abuse against Law and an Escape in the Keeper if he let the Prisoner go by such Writ We find that neither in the twenty fourth year of Eliz. when the Term was Adjourned to Hertford Nor in the 34. of Eliz. in which year it was Adjourned to Hertford Nor in the 35. of Eliz. in which year it was Adjourned to St. Albans Nor in 1 Jac. in which year the Term was Adjourned to Winchester Nor in the first of King Charles in which year it was Adjourned to Reading In all which years there were great and dangerous Infections of the Plague there was no such course to set Prisoners out of Prison by Habeas Corpus but we find it a Novelty begun of late years But We think that if the danger of Infection shall grow so great as it shall be found necessary to provide for the safety of the Prisoners who may at all times provide for themselves by paying their Debts and yeilding obedience to Justice then a course may be taken that some certaine house may be assigned for the Warden of the Fleet in some good Town remote from the Infection and the like for the Marshall of the Kings Bench in some other Town where they may remove such Prisoners as have been Petitioners to his Majesty and there keep them as Prisoners Sub arcta salva Custodia as they should be kept in their proper Prisons and not to be as House-keepers in their own houses and by this means they will have the like to avoid the Infection as other Subjects have and not make the Infection a cause to abuse their Creditors or delude the course of Justice John Bramsion 1. Richard Hutton 2. George Crooke 3. George Vernon 4. Francis Crawley 5. Humph. Davenport 6. William Jones 7. Thomas Trevor 8. Robert Barkley 9. Richard Weston 10. To Sir John Bramston Knight Lord chief Justice of England My very good Lord I Have acquainted his Majesty with your resolution and your Brethren about Writs of HABEAS CORPUS his Majesty doth exceedingly approve the same And hath commanded me to let you know that his Majesty would not recede from that which you have certified And praies you and the rest of my Lords the Judges to observe it constantly attending to that resolution under your hands Hampton Court 19 June 1636. Your Lordships assured Tho. Coventrey C. S. Mich. 14 Car. MEmorand That 28. Aprilis 14 Car. Iustice Hutton argued in the Exchequer Chamber in the Case Adjourned thither upon a Scâ—re facias by the King against Hampden for Ship-money in which he was of opinion that as well for the matter as for the form upon divers exceptions to the pleading Iudgment should be given against the King Afterwards viz. 4. Maij. Thomas Hanson Batchelor of Divinity and Parson of Creake in Northamp came to the Court of Common Bench Iustice Hutton and Iustice Crawley then being there giving Rules and Orders and said Words against Justice Hutton I accuse Mr. Justice Hutton of high Treason for which he was committed to the custody of the Warden of the Fleet by Iustice Crawley and after by the direction of the King he was indicted in the Kings Bench and convicted and fined to five thousand pounds to the King And Iustice Hutton preferred his Bill against him there and recovered ten thousand pound Dameges Lord Digbies Case MEmorand That in the Parliament holden primo Car. It was resolved by the Iudges upon conference concerning the Lord Digby That when any Peer shall be proceeded against for Treason that ought to be by Indictment and that being done Where tryall of Treason by the Statute of 3 Jac. cap. 4. shall be and how then the King is to appoint a Peer to be Steward for the time and then to proceed to Arraign him or otherwise to transmit this Indictment by Certiorari to the Parliament and there