was adjudged against the Plaintiffe as in a Valore Maritagii if the Defendant will shew that hee tendered a mariage whereas it is not needfull for him so to do yet if the same be not true and issue be taken upon it Judgement shall be given against him wherefore hee concluded for the Plaintiffe The principall Case was adjourned Trinit 10 Jacobi in the Common Pleas. 270 GOODMAN and GORE 's Case GOodman brought an Assize against Gore and others for erecting of two houses at the West end of bis Wind-Mill per quod ventus impeditur c. And it was given in Evidence That the said houses were situate about eighty feet from the said Mill and that in height it did extend above the top of the Mill and in length it was twelve yards from the Mill and notwithstanding this neernesse the Court directed the Jury to find for the Defendant And in that Evidence it appeared by a Deed procured by the Plaintiff himself That his Wife was Joint-tenant with him and therefore it was holden by the Court That the Assize brought in his own name alone was not well brought And Cook Chief Justice also said That the Count was not good by reason of these words viz. Per quod ventus impeditur for he said That these were the words of an Action upon the Case and not of an Assize But the Clarks said That such was the usuall forme ad quod non fuit responsum and in that Case it was said obiter by Cook Chief Justice That if the Husband and Wife be Joint-tenants and the Husband sowes the Land and dieth and the Wife doth survive that she shall have the embleements Trinit 10. Jacobi in the Common Pleas. 271 HARDINGHAM's Case IN an Action of Trespass Quare clausum fregit the Defendant did justifie That he did enter and distrain for an Amercement in the Sheriffs Torne which was imposed upon the Plaintiffe for enchroaching upon the Kings High-way without shewing that the same was presented before the Justices of Peace at their Sessions as the Statute of 1. E. 4. cap. 2. requireth Haughton Serjeant for stay of Judgement in this Case said That the Statute is That the Justices of Peace shall award Process against the person who is so indicted before the Sheriffe which was not done in this Case And he said That the Statute did not extend to Amercements only in Trespasses Quare vi armis but to every other Trespass for the Statute speaks of Trespasses and other things which shall be extended to all Trespasses Cook Chief Justice said That the Statute of 1. E. 4. cap. 2. did not extend to Trespasses which were not contra pacem as the encroachment in this Case is for otherwise the Lord of a Leet could not distrain for an amercement without such presentmennt before Justices of the Peace And although the Statute speaks of Felony Trespass c. the same is to be meant of other things of the same nature which is proved by the clause in the Statute viz. That they shall be imprisoned which cannot be in the principall Case at Bar. Warburton and Winch Justices agreed in opinion with Cook Chief Justice Trinit 10. Iacobi in the Common Pleas. 272 FRAUNCES and POWELL's Case IT was moved for a Prohibition to the Spirituall Court for citing the Plaintiffe out of his Diocess upon the Statute of 23. H. 8. and by the Libel it appeared That Powell the Defendant had complained against the Plaintiffe in the Court of Arches for scandalous words spoken in the Parish of Saint Sepulchers London Cook Chief Justice held That a Prohibition would lie unlesse the Bishop of London had given liberty to the Arch-Bishop of Canterbury to entermeddle with matters within London for he said that in the Statute of 23. H. 8. there is a clause of exception in case where such liberty is given by the inferior Diocesan and therefore a day was given by the Court to procure a certificate of the opinion of the Civilians whether such authority given by the Inferiour Ordinary to the Arch-Bishop were Warranted by there Law or not for the Statute of 23. H. 8. is so and then if the authority be lawfully granted no prohibition will lye And Cook said that the Statute of 23. H. 8. was made but in affirmance of the common Law as appears by the books of 8. H. 6. and 2. H. 4. For there it is said that if one be excomenge in a forrain Dioces that the same is void coram non judice and he said that the principal cause of making of the said Statute was to maintain the Jurisdiction of Inferiour Diocesses But it was holden that if the Plaintiff had defamed the Defendant within the Peculiar of the Arch-Bishop that in such case he might be punished there although that he did inhabit within any remote place out of the Peculiar of the Arch-Bishop and in this Case it was said that the Arch-Bishop had in thirteen Parishes in London Peculiar Jurisdiction It was adjorned Trinit 10. Jacobi in the Court of Wards 273 COTTONS Case SIR John Tirrel Tenant in Capite made a Lease unto Carrel for 1000. years and further covenanted with Carrel and his Heirs that upon payment of five Shillings that he and his heirs would stand seised of the same Lands unto the use of Carrel and his Heirs And in the Deed there were all the ordinary clauses of a conveyance bona fide viz. That the Lessee should enjoy the Lands discharged of all Incumbrances and that he would make further assurance c. Carrel assigned this Lease to Cotton who died in possession his Heir within age and in two Offices the Jury would not find a Tenure because it was but a Lease for years And in a que plura the matter came in question in the Court of Wards And Cook Chief Justice of the Common Pleas and Tanfeild Chief Baron of the Exchequer were called for Assistants to the Court of Wards and they were of opinion that because it was found by the Offices that Cotton died in possession that the same was sufficient to entitle the King to Wardship of the Lands But before the Judges delivered there opinions the Lessee was compelled to prove the Sealing of the Lease by witnesses which was dated 12. years before For if they have no sufficient witnesses to prove the Sealing of the Lease without all doubt there was sufficient matter found to entitle the King viz. that the party died in possession which shall be intended of an estate in Fee simple till the contrarie be proved But the two Justices moved the Attorney That he would not trouble himself with the proof of a matter in fact For they said It was confessed on all sides that there was such a Lease and that the Assignee of it died in possession of the Land and therefore they said that they were cleer of opinion that the Heir of such a Lessee who died in possession should be
because that the particular estate was determined The cause of forfeiture was because that the Copiholder had made a lease for life Pasch 8. Iacobi in the Common Pleas. 242 Dr. NEWMAN's Case IN this Case it was said by Cook Chief Justice That it had of late time been twice adjudged that if Timber trees be oftentimes topped and lopped for fuell yet the tops and lops are not Tithable for the body of the trees being by law discharged of Tithes so shall be the branches and therefore he that cutteth them may convert them to his own use if he please Pasch 8. Jacobi In the Exchequer Chamber 243 KERCHER's Case AN Action upon the Case was brought in the Common Pleas upon a simple contract made by the Testator which afterwards came into the Exchequer Chamber before all the Judges Cook in the Common Pleas was of opinion that the Action would lie Tanfield Chief Baron said That in these cases of Equitie it were most reason to enlarge and affirme the Authoritie of the Common law then to abridge it and the rather because the like Case had been oftentimes adjudged in the Kings Bench and there was no reason as he said that there should be a difference betwixt the Courts and that it would be a Scandall to the Common Law that they differed in opinion Afterwards at another day the Case was moved in this Court And Walmesley Justice doubted if as before But Foster held that the Action was maintainable And Cooke desired that Presidents might be searched And he said That he could not be perswaded but if the Executor be adverred to have Assetts in his hands sufficient to pay the specialties but that he should answer the debt Note the money demanded was for a Marriage portion promised by the Testator Pasch 8. Jacobi in the Common Pleas. 244 ADAMS and WILSONS Case Note It was said That when a false Judgement passeth against the Defendant he may pray the Court that it be entred at a day peremtory so as he may have Attaint or a Writ of Error And Cook Chief Justice said That if Judgment in the principall Action be reversed the Judgment given upon the Scire facias shall also be reversed because the one doth depend upon the other Walmesley in this Case said That it had been the usual course of this Court That if one deliver a plea unto An Aturney of the Court as the Last Terme and it is not entred that now at another Terme the Defendant might give in a new plea if he would because the first is not upon Record Pasch 8. Iacobi in the Common Pleas. 245 CULLINGWORTH's Case IF one be bounden in an Obligation That he will give to J. S. all the Goods which were devised to him by his father in Debt brought upon such an Obligation the Defendant cannot plead that he had not any Goods devised unto him for the Bond shall conclude him to say the contrary Vide 3. Eliz. Dyer 196 Rainsford Case Pasch 8. Iacobi in the Common Pleas. 246 QUOD's Case QVod had Judgement in an Action upon the case at the Assizes and damages were given him to Thirty Pound Hutton Serjeant moved in Arrest of Judgement That the Venire facias was de duodecim and that one of them did not appear so as there was one taken de circumstantibus and the entry in the Roll was That the said Jurour exactos venit but the word Juratus was omitted And for that cause the Judgement was stayed Mich. 8. Jacobi in the Common Pleas. 247 STONE 's Case STone an Atturney of the Court was in Execution in Norfolk for One thousand Pound and by practice procured himself to be removed by Habeas corpus before Cook Chief Justice at the Assizes in Lent and escaped to London and in Easter Terme the Bailiffe took him again and he brought an Action of false Imprisonment against the Bailiffe and it was holden by the Court That the fresh Suit had been good although he had not taken him in the end of the year if enquiry were made after him and so by consequence the Action was not maintainable Mich. 8. Jacobi in the Star-Chamber 248 MARRIOT's Case NOte It was agreed in this Case for Law That the Sheriffe cannot collect Fines or issues after a generall pardon by Parliament and therefore one Thorald the under Sheriffe of N. who did so was questioned and punished in the Star-Chamber Mich. 8 Jacobi in the Common Pleas. 249 JOLLY WOOLSEY's Case JOlly Woolsey of Norfolk brought an Action of Trespass against a Constable of Assault and Battery and Imprisonment the Defendant as to the Assault and Battery pleaded Not guilty and justified the imprisonment by reason of a Warrant directed unto him by a Justice of Peace for the taking and to imprison the Plaintiffe for the keeping of an Ale-house contrary to the Statute 12 Feb. 5. El. whereas the Statute was 12 Feb. 5. Ed. 6. and the matter was found by speciall Verdict And it was holden by all the Justices That the misrecitall of the Act was not materiall for it being a generall Act the Justices ought to take knowledge of it And Cook Chief Justice said That a man cannot plead Nul tiel Record against an Act of Parliament although that in truth the Record be imbezelled if the Act be generall because every man is privy to it Mich. 8. Iacobi In the Common Pleas. 250 NEWMAN and BABBINGTON's Case IT was resolved in this Case That if Debt be brought against an Executor who pleads that he hath fully administred and it is found that he hath Assets to 40l. whereas the Debt is 60l l that a Judgement shall be given for the 60l. against the Defendant and upon that Judgment if more Assets come after to the Executors hand the Plaintiffe may have a Scire facias Mich. 8. Jacobi in the Common Pleas. 251 WALLER's Case NOte It was said by Cook Chief Justice That if the King present one to a Benefice and afterwards presenteth another who is admitted instituted and inducted the same is a good repeal of the first presentation And he said That if the Lord doth present his Villain to the Church the same is no enfranchisement of him for that presentation is but his commendation And if the King will present a French man or a Spaniard they shall not hold the Benefice within this Realm for that the same is contrary to a special Act of Parliament Mich. 9. Jacobi in the Common Pleas. 252 NOte It was holden by all the Justices That Perjury cannot be commited in the Court of the Lord of Copy-holds or in any Court which is holden by Usurpation otherwise is it in a Court Leet or Court Baron which is holden by Title Trinit 8. Jacobi in the Common Pleas. 253 BURY and TAYLOR's Case IN an Ejectione firme brought upon Not guilty pleaded by the Defendant it was given in Evidence to the Jury to this effect viz. That one J. S. who did
expressly that he recover treble damages yet because it did amount to so much if the words of the sentence be joyned together It was directed that a special Prohibition in which the Statute and the whole matter is to be mentioned be awarded And in this case it was agreed by the whole Court That the Statute of 2 â— 6. for substraction of Tythes meerly doth not give any damages but if the Tythe be first set forth and then they are substracted there because the Parson had once an interest in them he shall recover treble damages And the principal Case was resembled by Warburton Justice to the case of Waste that if the Jury give damages 20l l there the Court shall treble the damages and make the same 60l and so it was done in the principal case Hill 11 Iacobi in the Common-Pleas 342. GIPPE's Case A Man Libelled for Tythes in the Spiritual Court the Defendant alleadged a Modus Decimandi and thereupon had a Prohibition and afterwards the Plaintiffe in the Prohibition did not prove his suggestion within six months and therefore the Court granted a Consultation because the Law hath appointed a certain time within which time the suggestion is to be proved Otherwise the Parson should be delayed and prejudiced in his Tythes and so it was adjudged in Parson Bugs case Mich. 8. Jacobi in this Court Hill 11 Jacobi in the Kings Bench. 343. CROSSE and STANHOP's Case AN action of false Imprisonment was brought against the Defendant and two other Justices of Peace of the County of York The Defendants justified the Imprisonment by reason of the Statute of 1 M. cap. That it should not be lawful for any maliciously and contumeliously to molest or disquiet any person or persons which are Preachers or after should be Preachers And the Plaintiffe demurred upon the Plea in Bar generally and two Exceptions were taken to the Pleading 1. Because the words of the Statute were misrecited for the words of the Statute are in the disjunctive maliciously or contumeliously And the opinion of the Court was that when the precedent subsequent words disjunctive are all of one sense that the word Or is all one with the copulative but where they are of divers natures as by word or deed it is otherwise The second Exception was That where the words were by the greater part of the Justices the Recital was by the better part of the Justices But notwithstanding these Exceptions it was adjudged against the Plaintiffe Pasch 12 Iacobi in the Kings Bench. 344. CARTWRIGHT's Case CArtwright prayed a Prohibition and the Case was this A. lying sick upon his bed made his Will and afterwards said unto his Executors named in the Will I will that B shall have twenty pounds more if you can spare it And the Executor answered and said Yes forsooth but no Codicil was made of the same Legacie And a Bill was preferred in the Spiritual Court for the Legacie whereupon the Executor prayed a Prohibition And it was holden by this Court that although this Court hath not power to hold plea of the thing Libelled for there in the Spiritual Court yet it hath power to limit the Jurisdictions of other Courts and if they abuse their authority to grant a Prohibition Vid. 2 H. 4. 10. But it was doubted whether the Spiritual Court as this case is might give remedy to the person for the Legacie For the same not being annexed to the Will by a Codicil it was but fidei commissum and so the doubt was Whether the Spiritual Court might hold plea of it For if they cannot hold plea of it then in this case a Prohibition may be lawfully granted although that this Court have not power nor jurisdiction of the thing it self The Court would be advised of it and therefore it was adjourned Pasch 12 Iacobi in the Kings Bench. 345. Sir CHRISTOPHER HEYDON's Case GOdsall Shepard Smith brought an Assise of Novel disseisin against Sir Christopher Heydon which was tryed at the Assises in Norfolk before Sir Tho. Fleming Lord Chief Justice of England and Justice Dodderidge which was found for the Plaintiffs and Judgment was given for them in the Court of Common-Pleas And thereupon Sir Christopher Heydon brought a Writ of Error in the Kings Bench and assigned for Error That whereas the Judgment was given upon his own Confession the Judgment was entred That the Plaintiffs did recover per visum Recognitorum Assise predict And after argument in the Kings-Bench it was adjudged by the whole Court that the Judgment given in the Common-Pleas should be affirmed notwithstanding the Error assigned And now to reverse the Judgment given in the Kings Bench he brought another Writ of Error in Parliament Cook Chief Justice said That the Clarks of the Chancery ought not to make a Writ of Error to the Parliament unlesse they have the Kings licence so to do And it was agreed by the whole Court that a Writ of Error lieth in Parliament upon the Transcript of the Record without bringing of the Record it self in Parliament For the Parliament is holden at the Kings pleasure and may be dissolved before the Errors be discussed and so the Record it self cannot be brought here again because the Parliament which is a higher Court was once possessed of it 8 H. 5. Error 88. The same Law in Error upon a Judgment given in Ireland 5 E. 2. Error 89. where only the Transcript of the Judgment is removed For if the Record it self should be brought into England it might be that before it came hither it shall be drowned in the sea and it is dangerous to commit a Record to the mercy of the winds and sea And Error lieth to reverse a Fine upon the Tenor of the Record and it is not necessary to bring the Fine it self because there is not any Chirographer in this Court to examine it At another day the same Term George Crook and Noy took five Exceptions to the said Writ of Error the first was Because the Writ doth recite the Judgment to be in Assis capt coram Tho. Fleming Capital Justiciar ad Placita Johannem Dodderidge milit unum Justic ad Placit coram nobis tent And the Exception was because that this latter addition was not to them both Dodderidge Justice held that the same was no good Exception to abate the Writ of Error because the omission is only in the addition of Honour which is surplusage and the Person is certain and his power appears to take the Assise and that Exception is not in point of jurisdiction but of denoting of the person and therefore is like the Case in 19 Eliz. Dyer 356. which is a stronger Case and 6 E. 6. Dyer 77. Haughton and Cook contr But Crook Justice did agree with Dodderidge that the addition of the same was but surplusage and that the Writ had been well enough without it Cook Chief Justice held the contrary For then he varieth from their
house and then by his Will deviseth his houses called the Swan The rooms of the Lyon which A. occupied with the Swan shall pass by the Devise although of right those rooms do belong to the Lyon-house Pasc 36 Eliz. Ewer and Heydon's Case A man hath a house and divers lands in W. and also a house and lands in D. And by his Will he deviseth his house and all his lands in W. D. there the house which is in D. doth not pass for his intent and meaning plainly appears that his house in D. doth not pass But if he had devised all his lands in W. and had not spoken of the house the house had passed A Case was in the Common-Pleas betwixt Hyam and Baker The Devisor had two Farms and occupied parcel of one of the Farms with the other Farm and devised the Farm which he had in his possession The part of the other Farm which he occupied with it did pass with the Farm devised Dodderidge Justice The Devise is in the Case at Bar All his Farm called Locks to his eldest Son and all his Farm called Brocks to his younger Son And the Land in question was purchased long after that the Devisor purchased Brocks but that Land newly purchased was not expresly named in the Will and therefore it shall discend to the heir viz. the eldest Son Land is not parcel of a house and in strictness of Law cannot appertain to a house Yet Land is appertaining to the Office of the Fleet and the Rolls but that is to the Office which is in another nature then the Land is For the Land newly purchased the Jury did not find the same to be usually occupied with Brocks it shall not pass with Brocks although it be occupied together with Brocks I do occupie several Farms together and then I devise one of the Farms called D. and all the lands to the same belonging the other Farms shall not pass with it although they be occupied all together Haughton Justice What time will make lands to belong unto a house All the profits of the lands used with the house for a small time will serve the turn Ley Chief Justice There are two manner of belongings One belonging in course of Right and another belonging in case of Occupation To the first belonging there ought to be Prescription viz. time out of mind But in our Case Belonging doth borrow some sense from occupying for a year or a time And then another year to occupie it will not make it belonging in the later sense In strictness of Law Land cannot be said to belong to a house or land but in vulgar reputation it may be said belonging And in such case in case of grant the Land will not pass as appertaining to Land C. 4. part Terringham's Case But in our Case it is in case of a Will Usually occupied is not to be meant time out of mind Here other lands were belonging to Brocks and so the words of the Will are satisfied But it might have been a Question if there had been no other lands belonging to it Dodderidge Justice If the Devisor had turned all the profits thereof to Brocks then it had passed by the Will Ley Chief Justice This occupying of it promiscuously doth make it belong to neither At another day Ley Chief Justice said Here is nothing which makes it appear to us that this Land doth belong to Brocks For the Jury find not that it was occupied either with Brocks or Locks and so this Land belongs to neither of them Dodderidge There is not any Question in the Case It is not found that it doth belong And then we must not judge it belonging The ground of this question ariseth out of the matter of fact and it ought to be found at the least that it is appertaining in Reputation Haughton The Jury find that Knight was seised of Brocks and of lands belonging to it And that he was seised of Locks and of lands belonging to that And lastly they find that he was seised of this Land in question but they do not find that it was any wayes belonging to Brocks or Locks It was adjudged for the Plaintiff and that the Land did not pass by the Devise but that it did discend to the heir Trin. 21 Jacobi in the Kings Bench. 448. SELY against FLAYLE and FARTHING IN an Ejection Firme the Verdict was found for the Defendant Three of the Jurors had Sweet-meats in their pockets and those three were for the Plaintiffe untill they were searched and the Sweet-meats found with them and then they did agree with the other nine and gave their Verdict for the Defendant Haughton Justice It doth not appear that these Sweet-meats were provided for them by the Plaintiffe or Defendant and it doth not appear that the said three Jurors did eat of the Sweet-meats before the Verdict given And so I conceive there is not any cause to make void the Verdict given but the said three Jurors are fineable Dodderidge Justice Whether they eat or not they are fineable for the having of the Sweet-meats with them for it is a very great misdemeanour And now we cannot tell which of the Jurors the three were and because it was not moved before the Jurors departed from the Bar it is now too late to examine the Jurors for we do not know for which three to send for The nine drew the three which had the Sweet-meats to their opinions and therefore there is no cause to stay Judgment But if the three Jurors had drawn the nine other to them then there had been sufficient cause to have stayed the Judgment but as this case is there is no cause And therefore per Curiam Judgment was given for the Defendant according to the Verdict Trin. 21 Iacobi in the Kings Bench 449. NOte It was vouched by George Crook and so was also the opinion of the whole Court That by way of Agreement Tythes may pass for years without Deed but not by way of Lease without a Deed. But a Lease for one year may be of Tythes without Deed. Trin. 21 Iacobi in the Kings Bench. 450. THe Plaintiffe recovered in Debt in the Kings Bench and a Capias ad Satisfaciendum was awarded and immediately upon the awarding of the Capias the Defendant dyed Quaere if in such case an Action of Debt lieth against the special Bail The Executors having nothing a Scire-facias doth not lie against the Bail And in the Common-Pleas in that case the Court was divided two Judges being against the other two Judges Ideo quare Trin. 21 Jacobi in the Kings Bench. 451. LEONARD's Case IN a Scire facias to have Execution of a Recognizance the Case was That a special Supplicavit for the Peace was directed out of the Chancery to A. and B. Justices of the Peace and to the Sheriffe of the County of c. to take a Recognizance of L. M. N. for the Peace and good behaviour and the
make a mingling of their Offices Vi. 13 E. 4 10 E. 3. By Hill and Herle For Trials out of the Chancery the Chancery and Kings Bench are but as one Court and if the Record come not in duely as it should the Court was never well seised of the Record Ley Chief Justice The coming of the Writ to the hands of one or two of the Commissioners shall not stay the Commission but the receipt of the one of them is the receit of them all having notice of it and the others may joyn with him to whom the Commission is delivered So it is in all cases every one of the Commissioners are interessed therein upon notice and not he only to whom the Commission is delivered If one Justice of peace taketh a Recognizance and dieth before it be certified the Certiorari shall be directed to the other Justice to certifie it if it come to his hands and he may retorn the Recognizance and it shall not be directed to the Executors of the Iustice who have not the Recognizance for the Certiorari is but the hand for the Court to receive it for otherwise the King might lose the benefit of the Recognizance And in our Case the Sheriff by a special Commission hath Authority to take the Recognizance and to retorn it upon Record One may do part of the Office as to make and take the Recognizance and the other may retorn it but one cannot execute a thing in part and another in another part the taking of the Recognizance by the two Justices doth exclude the Sheriff from medling with the taking or making of it but it doth not hinder him but that he may retorn it well enough and the Writ or Commission is general Vicecomiti which may extend as well to the new Sheriff as to the old Sheriff The Case was adjourned for by two Iudges the Supplicavit and Recognizance were not well retorned by the new Sheriff but Ley Chief Justice was against them Quaere Trin. 21 Iacobi in the Kings Bench. 452. RANDAL and HARVEY's Case THe Case was Harvey in consideration that Brown might go at large who was arrested at the suit of Randal gave his word that Brown should pay the money at such a day certain and for non-payment of the money Randal brought his Action against Harvey and being at issue upon the promise it was found for the Plaintiff Yelverton moved in arrest of Iudgment that the arrest of Brown was not warrantable by Law and that being the consideration the Promise was void and he said A man cannot make another his Attorney to arrest another man without Deed neither can the Sheriff give Warrant to his Baylie to arrest another without a Deed sealed And in the principal case Randal gave one a VVarrant to T. being an Attorney to demand receive and recover money from Brown but it did not appear by the Declaration that the VVarrant was by Deed in writing George Crook said that it was no Exception For be the Arrest lawfull or unlawfull yet he said the consideration was good Randal gave to his Attornie Authority to receive demand and recover thereby he gave him Authority to arrest Brown because the arrest is incident to the Recoverie 2 R. 2. Grants One grants to another all the Fish in his Pond he may fish with Nets For when he giveth the principal the incidents do follow VVhen Brown had yieldded himself to be lawfully arrested and then Harvey in consideration that Brown might go at liberty made the promise the same was good The Declaration was That Randal gave Authority to T. being an Attorney to receive deliver and recover the Debt by force of which Letter of Attorney T. did arrest Brown and so in the Declaration it is shewed that the Warrant was a Letter of Attorney Yelverton 34 H. 6. In Debt upon a Recoverie in the 5 Ports If a man will declare and set forth a thing in particular if he faileth in any thing it overthroweth his Action But if a man alledge generally a Recoverie in the 5 Ports then the same is good enough I agree the Case of 9 E. 4. Where a man gives leave to another to lay Pipes of Lead through his Lands that he may dig the ground to lay them there because it is incident to it And I agree the Case of 2 R. 2. for there the one thing cannot be done without the other viz. the Fish cannot be taken without Nets but in this Case the partie might have come by his money by Outlawrie and so there needed no arresting of the partie Ley Chief Justice If he had declared debito modo arrestatus it had been generally good and it must be intended that the Arrest was by vertue of a Letter of Attorney For he alledges that he gave him Authority to recover and then he shall have and use the means to recover as to arrest the partie or to outlaw him Haughton Justice Things incident and accessary may be comprehended in the principal as to dig for to mend the Pipe 9 E. 4. Because he grants him leave to lay them in the ground and so he may dig and justifie the same for the amending of the pipes If A. Licence B. to hunt in his Park and to kill a Deer yet B. cannot carry away the Deer for that is not incident to the thing granted In this case the Declaration is not good for he ought to set forth that the VVarrant was by Deed in writing and yet one may plead a Judgment generally quod debito modo he recovered and the same is good but here in this case he ought to set forth and shew the VVarrant and Authority by which he was arrested but not so in the case of pleading of a Judgment because there it doth refer to matter of Record Dodderidge Justice The promise was to free him from the arrest and if the arrest was unlawfull then there was no consideration and so by consequent the promise was void It ought to be shewed that Brown was lawfully arrest and if the arrest had been only matter of inducement and no cause of the Action then it had been sufficient to have said debito modo arrestatus but in this case the arrest it self is material and the Plaintiff hath shewed that the arrest was per debitum legis Cursum by vertue of a VVarrant of Attorney and it doth not appear but that it was a Letter of Attorney to deliver Seisin and so because the Plaintiff hath not shewed the arrest to be lawfull there was no good consideration whereupon to ground the promise and so no cause of Action Yelverton took another Exception viz. That the Plaintiff doth not shew that the arrest was per breve Regis or how it was Chamberlain Justice If the partie had brought an Action of false Imprisonment this Plea had not been good and in this case there appeareth to be no good consideration for it doth not appear that it was a
parcel of it for in the one Case the Visne shall be of the Manor in the other not Vide 9. Eliz. Dyer ar But it was said That in this Case the Modus did extend only to things in Stangrave and therefore the Visne should be of Stangrave only Nichols Justice said That although the Parish be a Town and of one name yet the Visne shall be from the Parish to which the Court agreed And in the principall Case the Pleading was That the Manor was in Parochia and the Modus alledged to be in Parochia and the Prohibition de Parochia and therefore the Venire facias ought to be de Parochia and not de Manerio or de Villâ—â— Cook cited 4. E. 4. and 23. E. 4. that in Trespass de Parochia is a good addition for it shall not be intended that there are two Towns in one Parish And it was said by the Court in this Case That before the Statute of 2. E. 6. all Prohibitions to the Spirituall Court were quia secutus est de Laico feodo for when a man had a Modus dicimandi the Corn and other things were lay things Then it was moved by a Serjeant at Bar That at the Assizes where the tryall of the Modus decimandi was one of the principal Panel did appear only upon the Venire facias and the question was If in such Case a tales might be awarded de circumstantibus And it was holden by the Court that such tales might be well awarded and 10. Eliz. Dyer vouched to prove the same It was also said by the Court That at the common Law if not in appeal the tales might be of odd number as quinque tales or novem tales but now since the Statute of 35. H. 8. the tales may be even or odd as pleaseth the party But it was adjudged in this Case That in no Case where a triall is at the Bar shall any Tales de circumstantibus be awarded And so are all the Presidents Mich. 11. Jacobi in the Common Pleas. 292 LEIGHTON against GREEN and GARRET THomas Leighton an Administrator durante minori 〈◊〉 of J. S. did libell in the Court of Admiralty against the Defendants and shewed in the Libel That there were Covenants made betwixt them by a Charter party they being Owners of the Ship called the Mary and John of Lynn that the Defendants should victuall the said Ship for a Voyage into Denmark and that the Ship should be staunch and without leak And shewed in his Libel that the Ship being upon the Seas did spring a leak by reason of which the Plaintiff did lose a great part of the Freight of the said Ship consisting in divers Commodities viz. Coney skins The Defendant pleaded That the Covenants were made infra Portum de Lynn And further pleaded That the Plaintiffe had before that time brought an Action of Covenants against the same Defendant upon the same Deed in which Action the Plaintiffe was Non-suit and it was adjudged That it was a good Plea in Bar and thereupon a Prohibition was awarded to the Court of Admiralty Cook Chief Justice in this Case said That charter party est charta partita and is all one in the Civil Law as an Indenture is in the Common Law And in this Case it was adjudged That the Triall should be there where the contract was made and so was it adjudged in Constantine and Gynns Case Where the Originall Act was in England and the subsequent matter upon the Sea the Tryall shall be where the Originall Act is done And so it was agreed in this Case that the Tryal should be Mich. 11. Jacobi in the Star-Chamber 293 MILLER against REIGNOLDS and BASSET SIr Henry Mountagu the Kings Serjeant did informe the Lords in the Star-Chamber How that the Defendants had conspired and practised Malitiosè to draw the Plaintiffs life in question being a man of One thousand Pounds per annum and otherwise very rich The Case was shortly thus Basset the Defendant was Tenant unto the Plaintiffe of a house in R. in Kent rendring a Rent the rent was behind and the Plaintiff demanded his Rent of him the Defendant told him That he was not able to satisfie him the Rent but he promised to give unto the Plaintiffe all his Goods in satisfaction of the Rent or so many of them as should countervaile the Rent and it was agreed betwixt the Plaintiff and the Defendant Basset that the Goods should be apprised by two men which was done accordingly and the Plaintiff came to the Defendants house at the time the said Goods were apprised but it was deposed and proved did not go out of the room where the apprisement was made at the time he was in the said house which was the 10 of May 7. Jacobi ar Afterwards the Defendants Reignolds being an Atturny at Law and Basset did conspire to accuse the Plaintiffe because that when he came to the Defendant Bassets house at the time of the apprising of the said Goods that the Plaintiffe went up into an upper Chamber in the said house and broke up a Chest and out of the same took a Gold Ring 10. s. in Money and the Defendant Bassets Lease of his house and thereupon brought the Plaintiff before divers Justices of the Peace who upon Examination of the matter found no ground of suspicion against the Plaintiff and therefore they did not bind him over to the Sessions to answer the same Accusation After this the Defendants made severall motions to the Plaintiff that he would give unto them 300l. and so he should be acquitted and there should be no proceeding against him and because the Plaintiffe refused so to do they told him that divers Courtiers had begged his Estate of the King and that the same was granted unto them when as in truth there was not any thing moved to any Courtier of any such matter but all this was said in a shew only to the end they might get great sums ef mony from him And in that matter they layed the scandall upon S. Rob. Car then Viscount Rochester that he was made privy to it who then was the Kings Maj. great Favorite And when all this could not prevail to gain any Composition from the Plaintiff the Defendants did prefer a Bill of Indictment at the Assizes in Kent against the Plaintiff and there upon Evidence given unto the Grand Jury they found an Ignoramus upon the Bill and divers other plots and divises were contrived by the Defendants all to the end the Plaintiff might lose his life his estate And this matter came to Sentence before the Lords and the Bill proved in every point and circumstance as well by the confession of the Defendants themselves as by divers writings depositions of witnesses and letters read and shewed in open Court and it was said by the whole Court of Lords in this case that this was a very great offence and an offence in Capite and that if such
were these viz. Thou usest me now as thy Wife did when she stole my goods Mich. 11. Iacobi in the Common-Pleas 332. ROES and GLOVE 's Case AN action of Debt was brought upon a Bond in Mich. Term 9 Jac and in Hillary Term after the parties were at issue upon the Statute of Usurie and it was found against the Defendant Afterwards Ter. Trin. a Writ of Error was brought retornable Mich. 10. Jacobi in which Term no Errors were assigned And afterwards in Hillary Term following two Errors were assigned the one That there was no such Statute as the Statute of 37 H. 8. of Usurie which was against what he had before confessed by his Plea the second Error was That whereas J. S. of Exeter was retorned of the Jury it was assigned for Error that J. S. of another place was sworn upon the Inquest and in this Case the Court advised the Defendant in the Writ of Error to plead In nullo erratum est By which the Court did seem to incline that they were no Errors Mich. 11. Iacobi in the Common-Pleas 333. BRADLEY and JONES Case IN an action upon the Case the case was That the Defendant did exhibite Articles against the Plaintiff in the Chancery before Dr. Cary and there swore the Articles and afterwards he sued in the Kings Bench and had Process out of that Court upon the Articles sworn in Chancery and for this an action upon the Case was brought and it was adjudged that the action would lie The articles exhibited in the Chancery were That the Plaintiff being an Attorney at Law was a Mainteinor of Juries and Causes and a Barretor and the Defendant prayed the Peace against him in the Kings Bench. And in this Case it was resolved 1. That a man might pray the Peace or Good Behaviour of any other man in any of the Kings Courts but then it must be done in due form of Law and if he do it so no action upon the Case will lie as it was resolved 27 Eliz. in Cutler and Dixons case in the Kings Bench. But it was agreed that if a man sueth in a Court which hath not jurisdiction of the Cause an action upon the Cause will lie but not where the Court hath jurisdiction of the Cause 2. It was resolved That the action did lie in the Case at Bar because he did exhibite the articles in Chancery and did not pursue them there For when he had sworn the articles in the Chancery he could not have a Supplicavit out of the Kings Bench and the Oath and Affidavit in the Chancery doth remain as a Scandal upon Record And Hobart Chief Justice said That every Court ought to intermeddle with their own proper causes and that two Courts are not to joyn in one punishment for punishment is not to be by parcels And he said That if a man claimeth right to the Land of another he is not punishable for it but if he make title vnto a Stranger then he shall be punished for every one ought to meddle with his own business 3. It was resolved That when a thing doth concern the Commonwealth the same doth concern every one in particular And so it is lawful for any man to require the Good behaviour of another for the publique good Interest etenim reipublicae ut maleficia punientur 4. It was resolved that the action did lie because the Defendant made the articles in Chancery but a colour of the Good Behaviour and although that the Kings Bench might grant the Good Behaviour without any articles preferred yet when first they begin in another Court they ought to follow the cause there And Hobart the Chief Justice in this case said that an Attorney may not labour Jurors in the behalf of his Client for that is Imbracery Mich. 11. Iacobi in the Common-Pleas 334. FIAL and VARIER's Case IN an Action upon the Case upon an Assumpsit the Case was this A man did promise to stand to the Arbitrement of J. S. J. D. if they made their Arbitrement and Award within ten dayes and if they do not make their Award within ten dayes that if they nominate an Umpier and he make an Award within the said ten dayes that then c. J. S. J. D. did not make any Award within ten dayes but the fourth day after the Submission they did nominate J. N. to be Umpier who made an Award within the said ten dayes and the Defendant would not perform the Award wherefore the Plaintiffe brought the action Sherley Serjeant It is repugnant For the first Arbitrators had the whole ten dayes to make their Award and then cannot the Umpier make an Award within the said ten dayes But the opinion of the whole Court was that the action would lie and that it should be construed thus viz. That if an arbitrement and award be made within ten dayes by the first Arbitrators or by the Umpier For the first Arbitrators may examine the matter for two or three dayes and if they cannot make any award then the Umpier shall have the rest of the ten dayes to make the award and so it was adjudged Mich. 11. Iacobi in the Common-Pleas 335. COLT and GILBERT's Case AN action upon the Case brought for these words He is a Thief and stole a Tree adjudged that the action would lie for the later words do not extenuate the former But Thou art a Thief for thou hast robbed my Orchard are not actionable v. C. 4 par Bretridges Case Mich. 11. Iacobi in the Common-Pleas 336. BROOK's Case AN action upon the Case was brought for words The Plaintiffe set forth in his Declaration That he was a Mercer by his trade and did sell wares and commodities in his shop and did keep divers Books of his trade and Debt-books and that the Defendant said unto Mr. Palmer being the Plaintiffs Father-in-law these words of the Plaintiffe viz. Your Son-in-Law Brooks deceived me in a Reckoning and he keepeth in his shop a false Debt-book And I will shame him in his Calling Nichols Justice and Hobart Chief Justice were of opinion that the action would not lie for those words 1. Because the words single of themselves are not any â—lander and when words will bear an action it ought to be out of the force and strength of the words themselves 2. The first words Thou hast deceived me in a Reckoning will bear no action because it is impossible but that Tradesmen and Merchants which keep Debt-books will sometimes mistake one Figure for another and so the same doth turn to the prejudice and damage of another against the will of the party himself And so the subsequent words He keepeth a false Debt-book are not actionable because it may be falsified by the Servants of the party and not by the Defendant himself and also it may be false written Et interest reipublicae ut sit finis litium and it should be a cause of many Suits if such a nice construction
Commission was to A. B. and the Sheriff cuilibet eorum The Supplicavit was delivered to the two Iustices who took a Recognizance from L. but M. N. could not be found The Sheriffe was afterwards out of his Office because his year of Sheriffwick expired The new Sheriffe made a Retorn That M. N. non sunt inventi in balliva mea And also Retorned That A. B. had taken a Recognizance of L. as appeareth per quandam schedulam huic annex in haec verba c. This Case was argued and 21 H. 7. 20. 21. vouched That if the Writ be first delivered to the Sheriffe then he only is for to execute the Writ and retorn the Supplicavit But if it be first delivered to the Iustices then they ought to execute it and retorn it 9 E. 4. 31. A Supplicavit is a Iudicial Writ and cannot be executed by a Deputy but a Ministerial Writ may be executed by a Deputy In this case the succeeding Sheriffe did retorn the Writ and it was not directed unto him And the same being delivered to the Chancellor whether the same should be a Record or not was the Question 4 H. 7. 17. Debt was brought upon an Obligation The Kings Serjeant prayed the Bond for the King because that the Plaintiffe was a person Outlawed Bryan Iustice You ought to bring a Writ of Detinue to recover the Bond which is a legal course for the King And so in this case here is no Record for the King because the Recognizance comes not in by a legal course viz. a lawful Retorn for it was retorned by the new Sheriffe and also by him who did not execute the Commission Heath said cleerly There was no Record for the King and vouched 21 H. 7. 20 21. Note the whole Case there 1. Where it is said In casu superiori ipse Justiciarius qui primo illud breve de Supplicavit recepit tota executione ejusdem Brevis tantummodo tenetur reliqui sociorum suorum tangent dictum Breve exonerentur Justiciarius hanc recipiens nomine suo proprio illud retornabit And in our Case it was directed to the Sheriffe and Iustices and being delivered to the Iustices the Sheriffe had not to do to make Certificate of it and in this case he is but as a private man This suit is a Scire facias to have Execution upon the said Recognizance A Dedimus potestatem is directed to two and one of them doth execute it the other cannot certifie it for the Execution of it ought to be upon his own knowledge A Record taken by one cannot be certified by another for if it be it is not any Record upon which a Scirefacias can be awarded In our Case the Justices made the Record and the Sheriffe did certifie it Ley Chief Justice When the Recognizance is put to writing or Notes of Remembrance taken of the Recognizance before the Commissioners it is immediately a Record One takes Notes of a Recognizance and dyeth He to whose hands the Notes come may certifie the same for it is a perfect Record by the taking of the Notes of Remembrance But that is to be understood when no Writ is directed to Commissioners but when a Justice takes is In our Case the Sheriffe may retorn the Writ ex officio and also retorn That executio istius brevis patet in quadam schedula annexa And it doth not appear but that the now Sheriffe was at the Execution of this Commission But admit that he was not yet now the Writ being retorned into the Chancery your pleading and taking issue upon another matter hath made it a good Record And therefore I hold that the Judgment ought to be given for the King according to the Verdict Haughton Justice Judgment cannot be for King If the Record doth not come duly into the Chancery according to course of Law it is not any Record upon which there can be any Procution If a Judge take a Fine and dyeth before it be certified a Certiorari ought to be directed to the Executors of the Judge v. 2 H. 7. 10. but the Certiorari ought not to be to a stranger If two Iustices of Peace have Commission to take a Recognizance and one of them taketh it and dyeth the Certiorari must be to his Executors and not to the other Iustice In this Case the Record came into the Chancery by undue course The Commission was several Cuilibet eorum and those who took upon them the Execution thereof are now made Officers by the express words of the Writ and it is not so here retorned and therefore Iudgment ought to be against the King A Dedimus potestatem is directed to four to take a Fine of Lands in several Counties Two of them take it in one County and they certifie it and the two other take it in another County and they certifie it None of the Certificates are good Dodderidge Iustice Iudgment ought to be against the King There are two Questions in the Case 1. Whether the Sheriffe as this Case is may onely make the Retorn 2. Admitting that he cannot but the same being retorned and the Chancery accepting of it and sending it to this Court whether we can damn the Record 1. This is a special Recognizance upon the grievance of the party and by the Kings Commission they are made especial Iudges in this case And when the party who sues delivers the same to the two Justices the Sheriff cannot entermeddle therewith for then the Justices ought to retorn the Recognizance by vertue of that Commission 21 H. 7. 20 21. there the Case is direct in the point That they to whom the Writ is first delivered they only are to execute it and retorn it for they only have power by vertue of the special Commission The Writ was against three and two of them are not to be found The Sheriff cannot retorn Non sunt inventi for the two by force of this Commission and he is not to make his Retorn as a Minister or Officer to the other because the Writ is Judicial If a Challenge be to the Sheriff and Coroners and process is directed to Esliors they are to execute the process as particular Officers by vertue of the Writ and they are to retorn the same and not the Sheriff because their authority is by vertue of a special Writ To the 2. point it hath been said That the Record is in the Chancery and the partie hath pleaded to it to issue and it is now sent into this Court and now fault is found with it but not before Though all this be so yet we cannot accept of it here if it have not due proceedings If process be directed to the Coronors for Challenge to the Sheriff and then a new Sheriff is made against whom there is no cause of challenge yet the Coronors must execute and finish the process and not the new Sheriff for the Law will not endure that Offficers do