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A47716 The second part of Reports and cases of law argued and adjudged in the courts at Westminster in the time of the late Q. Elizabeth, from the XVIIIth to the XXXIIId year of her reign collected by that learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases and of the matters contained in the book.; Reports and cases of law argued and adjudged in the courts at Westminster. Part 2 Leonard, William. 1687 (1687) Wing L1105; ESTC R19612 303,434 242

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it there And it was said If the Court there should not allow the Plea that they should incur the offence of contempt of this Court and the other party should have a Prohibition CCXXV. Sir Richard Buckley 's Case Mich. 32 Eliz. In the King's-Bench SIR Richard Buckley was indicted upon the Statute of Praemunire of 13 and 15 R. 2. and the effect was That whereas one Griffeth Matthew had murthered one Robert Footman at Beaumarris and whereas one Owen Wood prosecuted the said Griffeth Matthew for the said murther The said Griffeth Matthew Praemissorum non ignarus sed intendens the said murther a Curia Dominae Reginae ad aliud examen c. pro quodam supposito contemptu Curiae Admiralitatis traxit in placitum the said Owen Wood coram Julio Caesar in the Court of Admiralty holden at Islington supposing the said murther to be done upon the high Sea and thereupon caused him to be arrested and being under arrest to enter Bond unto the Lord Admiral that he should not prosecute the said murther against the said Griffeth Matthew nor examine any witnesses concerning the said murther and that the said Sir Richard Buckley was abettor and procurator of the said Griff. Mathew therein To this Indictment many Exceptions were taken by Coke In placitum pro quodam contemptu and doth not shew the contempt in certain for it is too general and so not good See 18 Ass for the stealing of certain Sheep without shewing what Sheep they were is not a good Indictment And here he doth not say concerning the said murther or concerning the premisses 2 Although that the matter of the Indictment be true yet the Stat. of Praemunire doth not extend to it for the Statute inflicts a punishment as well upon the Iudge scil the Admiral as upon the party See 10 H. 4. 164. If one Libelleth in the Court of Admiralty for a thing done upon the Land and it appeareth upon the Libel that the thing was done upon the Land and they notwithstanding that hold Plea of it A Praemunire lieth upon it But if the same doth not appear within the Libel then it is not within the Statute but a Prohibition shall onely issue So in the case of Tithes If the Parson sueth for Tithes severed from the nine parts and that appeareth in the Libel the same suit is within the Statute of Praemunire and that was Cardinal Woolsey's Case 3 It is alledged That Sir Richard Buckley procured him to do it but it is not shewed any place where the procurement was had And that was resolved in the Case of the Lord Paget 1 Len. 5. and the Bishop of Coventrey and Lichfield where the Bishop was indicted That he commanded J. S. to enter into the Close of the Lord Paget and to do a trespass there and because the place of the commandment was not set forth in the Indictment the Bishop was discharged M. 25 and 26 Eliz. Another matter was objected because that the words are That the said Sir Richard Buckley did abet and procure in hac parte without shewing what thing As to this last Objection The Court was of opinion that the words in hac parte did refer to the whole offence contained in the Indictment Wray It is hard That the matter of the Indictment should be within the Statute of Praemunire for by the suit it is supposed That the offence was done upon the sea and the Admiral hath jurisdiction to punish murthers committed upon the sea so in some degree the Admiral hath Conusance to enquire of Murther but if they hold plea of any thing of which in no degree they have Conusance it is otherwise And as to the place where the commandment was made the Court was clear of opinion that it ought to be shewed CCXXVI Hooper 's Case Mich. 32 Eliz. In the King 's Bench. JOhn Hooper 1 Cro. 198. alias Bartholomew of D. c. was indicted upon the Statute of 8 H. 6. Of forcible Entry and Exception was taken to the Indictment in default of addition of the place c. For the addition is here after the alias dict and so there is no addition and therefore the party was discharged and it was holden in this Case That Uxor is a good addition and where the husband and wife are indicted and the husband be indicted of such a place although the wife hath no addition of place yet the same is good enough but Ive said That in that case there needs not any place CCXXVII Mich. 32 Eliz. In the King 's Bench. A. Was Indicted for not repairing of a Bridge lying in such a high-way which A. is bound to repair by reason of his land adjoyning and the Indictment was That the Bridge was so ruinous Ita quod Ligei Dominae Reginae per eam transire non possunt and concluded ad nocumentum eorund c. and that was challenged because it doth not say Ad nocumentum omnium subditorum for otherwise it may be intended a private way of which a man cannot be indicted but the party grieved shall have his Action upon the Case But the Exception was not allowed but the Indictment is good enough For the words of the Indictment are Sic quod Ligei Dominae Reginae illuc pertransire non possunt i. e. all the Liege people and Subjects of the Queen and then ad nocument eorund amounts to as much as ad commune nocumentum c. and for that cause the Indictment was holden good enough CCXXVIII Ashpernon 's Case Mich. 32 Eliz. In the King 's Bench. ONE Ashpernon was Indicted at the Sessions in the County of Sussex for an unlawfull assembly and entry into the Close of one A. called The Parsonage land before two Iustices of Peace there and exception was taken to it because it is not set down in the Indictment that one of the Iustices was of the Quorum but that the exception was disallowed for the Indictment is sufficient if none of them be of the Quorum for they may enquire but not determine Another exception was because the contents of the Close is not set down in the Indictment scil the number of the acres nor if it be arrable pasture or Meadow but that was disallowed also for this is but an Indictment of trespass contrary it is upon an Indictment upon the Statute of 8 H. 6. Postea 186. for there the party grieved is to have restitution but so he is not here Another exception was taken because that in the Indictment no time is set down when the trespass was done but onely of the assembly but that was disallowed also for both shall be taken to be done together all at one time CCXXIX Leveret and Townsend 's Case Mich. 32 Eliz. In the King 's Bench. 1 Cro. 198. 3 Len. 263. IN an Action upon the Case for disturbing him of his common The Plaintiff declared That he was seised in Fee of a Messuage and certain
of it is taken away by the act of the Plaintiff himself CLIV. Heal 's Case Pasch 30 Eliz. In the King's-Bench HEal a Bencher of the Inner Temple being at the Bar Wiat another Apprentice at Law informed the Court against the said Heal and shewed That where his Client had obtained a Iudgment in the King's-Bench The said Heal being of Council with the other part did advise his Client to bring the party who had obtained the Iudgment into the Chancery and he procured an Order against him Co. 3 Inst 12. 123 124. 4 Inst 86 91. by which he was cast into Prison Which matter Heal could not excuse but submitted himself to the Court saying That he had seen a precedent which induced him so to doe and that was the Case of one Prince Princes Case where a Iudgment given in this Court was drawn into question and examined in the Chancery But the Iustices said That the same was an ill precedent and against the Statute of 4 H. 4. which is That no Iudgment be undone but by Error or Attaint CLV Gray and Constable 's Case Pasch 30 Eliz. In the King's-Bench SIR Thomas Gray covenanted with the Lady Constable That where he is possessed of a Lease for twenty one years of certain Lands That he will assure convey and assign the said Lease to one Nevil excepting the two last years of the said twenty one years and he said Sir Tho. Gray was bound in a Bond to perform the Covenants of the said Indenture upon which Indenture the Lady brought Debt against the said Sir Tho. Gray who pleaded the Conditions and the performance of them The Plaintiff replicando said That the Defendant non assuravit conveiavit transposuit Anglice set over the said Lease upon which they were at issue And at the day of the Nisi Prius it was moved by Cooper and Beaumont That the Issue was misjoined for the Defendant pleads as the Covenant it self is That he had assured conveyed and assigned the Lease and so pleaded the performance of other Covenants c. The Plaintiff assigned the breach in this Quod non assuravit conveiavit transposuit Anglice set over which word transposuit is not in the Covenant nor in the pleading of the performance thereof and the English word set over although it sounds the same with assigning doth not help the matter and if the Latin word doth not agree with the matter non refert of the English word although in the Plea there be this word Anglice set over Note the Covenant was ut supra The Plaintiff assigned the breach Quod non assuravit conveiavit transposuit Anglice set over c. And the Defendant pleaded Quod assuravit conveiavit transposuit Anglice set over c. And the Court was clear of opinion That the Issue for that cause was not well joined And afterwards by the assent of the parties it was amended CLVI Doghead 's Case Pasch 30 Eliz. In the King's-Bench Hutt 35. Hob. 250. Antea 110. 1 Cro. 177. And. 116. AN Information was upon the Statute of 27 Eliz. cap. 4. by the party grieved which Statute gives unto the King one moyety of the value and the other moyety to the party grieved The Plaintiff was nonsuit It was holden by the Court that he shall not pay costs and damages by the Statute of 18 Eliz. for the Statute as the Title of the same doth imply is to redress Disorders in common Informers and so is the Preamble and the words also of the clause of costs and damages are Every such Informer and so by Ive Secondary of the Crown-Office An Action given to the party grieved is not a popular Action and the Statute of 18 Eliz. extends onely to popular Actions CLVII Cony and Chomley 's Case Pasch 30 Eliz. In the King's-Bench IN an Ejectione Firmae after Verdict in Arrest of Iudgment it was moved That the Plaintiff had declared in Ejectione Firmae Quod cum Robertus Diggon per Indenturam suam gerent dat 20 Maii 1 Cro. 773. 890. dimisit c. where he ought to have said iisdem die anno For although the Indenture bear date ut supra yet it may be that it was delivered at another day and then it doth begin to be a Demise And if in an Action upon the Case upon Assumpsit to pay money upon request although it be found for the Plaintiff yet if no day be put in the Declaration when the request was made but onely licet saepius requisitus in case where a request ought to be made there the Plaintiff shall not have Iudgment as it hath been oftentimes adjudged Quod omnes Justiciarii concesserunt But yet afterwards notwithstanding the Objection aforesaid Iudgment was given for the Plaintiff CLVIII Marsh and Jones 's Case Mich. 29 and 30 Eliz. In the Common-Pleas IN a Replevin the Case upon the Evidence was 3 Len. 114. That before the Statute of Quia Emptores terrarum a man made a Feoffment in Fee to hold of him by the service solvendi post quamlibet vacationem sive alienationem the value of the annual profits of the Lands And it was holden by the Court That the value shall be intended such a value as was the value at the time of the Feoffment made and not as it is improved by succession of time CLIX. Willoughby 's Case Mich. 29 and 30 Eliz. In the King's-Bench WIlliam Willoughby and two other were indicted 1 Cro. 3 Len. 216. That whereas the Parson of the Church of D. and all his predecessours have used to have Common in such a place the said Willoughby c. vi armis c. had inclosed it and the Inclosure was upon their own Lands It was moved That upon this matter they ought not to be indicted but the party grieved is put to his Action as where a Presentment is made of a Disseisin See 27 Ass 20. And it was the Case of one Morden Morden's Case 1 Cro. Madox Case 29 Eliz. upon the stopping of a Way upon his own Land And it was said That if it should be upon the Lands of another it were not material for it is but a hindrance from the taking of Common which cannot be vi armis Also it was said That the Indictment is recorded and certified as found before the Iustices of Assise and Gaol-delivery and they cannot take such Presentments And although the said Iustices of Assise and Gaol-delivery were in rei veritate also Iustices of the Peace yet the Indictment being recorded and certified to be taken before them in quality of Iustices of the Peace will not help it for the Court shall not respect any other authority but that which appeareth upon Record and therefore for the causes aforesaid they were discharged by the Court. CLX Collet and Robston 's Case Error Hill. 30 Eliz. In the King's-Bench 3 Len. 149. COllet and Andrews recovered in a