of Norfolke and Marshall and their Authority and Jurisdiction was absolute and their Judgements not reversable unlesse by Parliament and this appeares by the Statute of 5. Ed. 3. chap. 2. that they might hold Plea of things which did not concerne them of the household and also the words of the Statute of Articuli super chartas chap. 3. 28. Ed. 1. provides that the Marshalsey shall not hold Plea of free hold of covenant nor of any other contract made between the Kings people but only of Trespasse made within the Kings house or within the Verge and of such Contracts and Covenants which one of the honse made with another of the house and within the house and in no other place where Trespasse is Limited to the Kings house or within the Virge but no restraint that the parties shall be of the Kings House or otherwise it shall not be intended which shall be only those which are of the Kings House insomuch that the Trespasse is limited to be made within the Virge also he sayd it was a statute made 30 Ed. 1. which provides that if any causes arise amongst the Citizens of London only that this shall be tryed amongst the Citizens but if it be between them of the House it shall be tryed by them of the House by which it appears that they may hold plea between Citizens of London where none of the parties are of the Kings House also the statute of 6 Ed. 3. chapter 2. provides that in Inquests they shall be there taken by men of the Country adjoyning and not men of the Kings Houshold if it be not betwixt men of the Kings Houshold if it be not for Contracts Covenants and Trespasses made by men of the Kings Houshold of one part and that the same House which referrs to the statute of Articuli super chartas before cited and this expounds and so the Statute of 10 Ed. 3. chapter 2. provides that in Inquests they are to be taken in the Marshalsey that the same inquests shall be taken of men the Country thereabouts and not by People of the Kings House if it be not of Covenants Contracts or Trespasses made by people of the same House according to the Statute made in time of the Grand Father of the said now King and according to that the use hath been that is if none of the parties of were the Kings house then the tryal had been by the men of the country adjoyning And if one of the parties be of the house and another not then the tryall is by party Juries and if both the parâ—ies be of the house then all the Jury hath used to be of the house and if the Cause be between Citizens of London then the tryall hath used to be by Citizens of London and in the Book of Entries the same plea was pleaded in false Imprisonment 9 10. and the Register fol. 1 1. A. in action upon escape in Trespasse and to the Books of 7 H. 6. 30. 10 H. 6. Long 5 Ed. 4 19 Ed. 4. 21 Ed. 4. He saith that none of these Books are in action of Trespasse but one onely and that is mistaken in the principall point and so may be mistaken in one by case And the Booke of 10 H. 6. 30. is directly in the point but Brooke in abridgement of that saith that the practise and usage of the Court was otherwise But it may be objected that this is Indebitatus assumpsiâ— which is in nature of an action of debt and founded upon contract he said that Fitzherbert in his Natura Brevium said that there are two sorts of Trespasses that is General and upon the Case and Trespasse is the Genus and the other are the Species and that the action is founded upon breach of promise which is the Trespasse as for not making of a thing which he hath promised to doe and it is Majesteale breve and not breve formatuâ— and so is an action of Trover and Conversion or Assumpsit are Writs of Trespasse but admit that no yet action of false Imprisonment doth not lye for hee ought not to dispute the authority of the Court for the duty of his Office is only to be obedient and diligent for otherwise he should be judged of the Judg And who by the appointment of the Judge doth any thing doth not seem to do it deceitfully because it is of necessity he should obey and 14 H. 8. 16. a Justice of Peace awarded a Warrant to arrest a man for suspition of Felony where his Warrant was void and yet the party to whom it was directed justifies the making of the Arrest by force of that And 12. H. 7. 14. Capias was awarded to the Sheriff without original yet it was a sufficient Warrant to the Sheriffe and 22 Assis 64. Court awarded a Warrant where they had no Jurisdiction and yet it was a sufficient Warrant for him to whom it was directed And so in Mansells case if the Sheriffe execute an habere facias sesinam awarded upon a void Judgement this is a sufficient Warrant for him So in this case allowing that the Court hath no Jurisdiction yet the Plaintiff cannot be retained by this action but is put to his Writ of Error or to his action upon the Statute and so he concluded and prayed Judgment for the Defendant Hutton Serjeant for the Plaintiff argued to the contrary and hee intended that Judgment should be given for the Plaintiff for the matter and also for the Parties and that the Judgement and all other proceedings in the Marshalsey were meerly void and he denyed that they had originally such absolute jurisdiction as Fleta pretended for originally that was only for the preservation of the peace as it appears by the stile of the Court and also by the diversities of the Courts and that Criminall causes which require expedition are there only tryable and that civill causes are incroached of later times and it was necessary to be restrained and reformed by Parliament And it appears by the Statute of Articuli super Chartas that they have encroached to hold plea for free-hold and for that the Court which is mentioned in Fleta cannot be otherwise intended then the Kings Bench which then followed the Kings Court And also that they have not incroached only upon matters as to hold plea for Free-holds but also to persons and place where Contracts and Trespasses were made and this was the cause of the making of the said Statute And to this action of Trespasse for indebitatus assumpsit there begun he intended that it is for another thing of which they could not hold plea and it might be criminall for Civill is that which begun by contract and it is part of the commutative Justice for which is recompence given by one party to another and is not founded upon the Contract but is translated to an action of Trespass which manner of Trespass is not within the Statute and so he intended that
c. and that the Plaintif was sued there by J. S. and that hee was summoned and upon a nihill returned a capias issued according to the Custome c. And that he being an Officer there did arrest and the Court ruled him to plead the Custome particularly for holding the Court and to prescribe c. And here it is shewn that the Maior is a Justice of Peace And it doth not appear whether he did it as a Justice of Peace or Maior as 14. H. 7 8. A Justice of Peace cannot command his servant to arrest one without a Warrant in writing in his absence And Popham chiefe Justice said That although the Judges knew the Authority of the Maior by which they arrested men yet because it did not appear to them judicially as Judges it must be pleaded And a Justice of Peace cannot command his servant to arrest one if not in his presence which was granted And Fennor Justice said that the servant is not an Officer to the Maior as he is a Justice of Peace but the Constable and Walker also added that the Plea was that the Maior commanded to imprison him presently without shewing any cause which was held naught for the maior ought to temper his Authority according to Law For the Judges cannot imprison without shewing cause but them and the Maior both may command an Officer to arrest a man without shewing the cause for else before he shall be examined he may invent and frame an excuse and the accessories will flye away And Williams Justice finds that it was incertain for the Plaintif by what authority he commanded it whether as Maior or Justice of Peace and his power as a Justice of Peace the Judges knew by common Law but his power as a Maior they knew not if it be not shewed by pleading and Judgement HVggins versus Butcher Trin. 4. Jac. The Plaintif declared that the Defendant such a day did assault and beat his Wife of which she dyed such a day following to his damage 100 l. And Serjeant Foster moved that the Declaration was not good because it was brought by the Plaintiff for a Battery done upon his Wife And this being a personall wrong done unto the woman is gone by her death And if the woman had been in life hee could not have brought it alone but the woman must have joyned in the Action for the damages must be given for the wrong offered to the body of the woman which was agreed And Tanfield said that if one beat the servant of J. S. so that he die of that beating the Master shall not have an Action against the other for the battery and loss of service because the servant dying of the extreamity of the beating it is now become an offence against the Crown and turned into Felony and this hath drowned the particular offence and prevails over the wrong done to the Mr. before And his action by that is gone which Fennor and Yelverton agreed to BRown versus Crowley Pasch 5. Jac. Action of Trespass brought against Croyley for wounding the Plaintif upon the hinder part of the left legge being rendred in Latin super posteriorem partem levis libaei and the Jury found for the Plaintiff And Harris moved in Arrest of Judgment for hee said that these words levis libaei made the Declaration vitious for the incertainty for he said that levis signified light and it was an improper word for left and that judgment ought to be respited for the incertainty And Yelverton argued that judgment ought to be given for the Plaintiff for he said the Declaration was not vitious for if the Plaintiff had declared generally that he had wounded broken or evill intreated him and had omitted those other words it had been sufficient and then the adding of those words which were not materiall but for damages did not make the Declaration vitious and he said that levus leva levum was Latin for left And whereas he hath said that he strook him super posteriorem partem levis libaei where it should have been levis libaei it was but false Latin and the Declaration shall not be made naught for false Latin And Popham said that hee shewing upon which part of the body the wound was were laid only to incense damages for the Declaration had been sufficient though they had been omitted And Justice Fennor agreed to Popham and he said it had been judged that where a man brought an Action against another for calling him strong Theife and the Jury only found that he called him Theife but not strong Theif yet the Plaintiff recovered for this word strong was to no other purpose then to increase dammages and Judgement was given for the Plaintif VIccars versus Wharton Pasch 5. Jac. Viccars brought an action of false imprisonment against Wharton and others and shews that he was imprisoned two dayes and two nights without meat or drink The Defendants come and shew that King Edward the 1. by his Letters Patents did incorporate one Village in Nottingham-shire with Bailiffs and Burgesses and that the King did ordain and make those Burgesses Justices of the Peace there and that the Defendant was Bailiâ—â— and a Justice of Peace there and that the Plaintiff did speak divers opprobrious and contumelious words of the Defendant by reason whereof they imprisoned him And shews further that the Bailiffs have used from the time of the making their Patent to imprison the disturbers of the Peace and it was held a naughty plea for a custome could not be shewn in such a manner And Tanfield held in this case that a man could not prescribe to be a Justice of peace but Justice Williams held he might prescribe to be a conservator of the Peace And Tanfield held that the King might grant that all the Burgesses and their Heires should be Burgesses which Justice Williams denyed HAll versus White Pasch 5. Jac. An action of Trespass brought against the Defendant for impounding the Plaintiffs Cattel the Defendant justifies for Common And upon that they were at issue in Derby-shire and the Jurors being sworn the Bailiff found one Bagshaw one of the Jurors rending of a Letter concerning the said cause and shewed it to the Judg and a verdict given by the Jury And this matter moved in the then Kings Bench to quash the verdict but denyed by the whole Court because the Letter and the Cause was not certified by the Postea and made parcell of it for otherwise the examination of that at the Barre after the verdict shall never quash it And so it was adjudged between Vicary and Farthing 39. Eliz. where a Church Book was given in Evidence of which you shall never have remedy except it be entred and made parcell of the Record BVtler versus Duckmonton Trin. 5 Jacobi In Trespasse upon a speciall Verdict the Case was that no demised Land to a woman if she should live sole and unmarried
of Parent 42 Imparlance what plea after 42 Judgment Arrested 2 Judgment reversed because the Sheriff was not named in the Venire facias 3 Iudgment arrested 5 Justification not good where 5 Justification amounting to a not guilty naught 5 Innuendo will not help the action 7 9 Imparlance Roll supplyed by the issue 9 Juror committed 44 Judgment upon a By-law 48 49 Judgment pleaded in Bar by Executor 49 Judgment against Executors 53 Imparlance amended 53 Judgment arrested for improper words Sans Anglice 82 Jeofaile the statute not helping where 82 Judgment reversed by Error in the disjunctive 88 Intendment upon a Will 89 Judgment reversed in an inferiour Court why 97 Judgment reversed for Errour in the judgment 99 Judgment reversed for changing the Defendants addition 100 Judgment priority considerable 102 Judgment reversed for not shewing in what Court a deed was enrolled 115 Judgement reversed for want of words in the Tales 115 116 Implication not allowed of in a surrender where 128 Judgment in an Eject firmae 129 Interest what 136 Judgment reversed by Writ of Error non obstante a verdict the Statute of 18. Eliz. 106 Imparlance what is pleadable after 138 Joynture what 139 Interest in possession and in future the difference 148 Implication not intended where 153 Judgment arrested for that the plea was naught 172 Jurors name mistaken was amended upon constat de persona Iudgment arrested for not shewing in what place the Messuage did lie to which Common did belong 188 Iury challenge 194 Iudgment it 's nature as to the Plaintiff and Defendant 194 Issue helped by the Statute of Jeofailes where 200 Iudgement reversed because the writ of Enquiry was before a wrong Officer 203 Imprisonment justified by the commandment of the Maior of London naught where 204 Justice of Peace cannot command his servants to arrest in his absence without Warrant 205. Iustification in Trespass for a way 212. Iustification not good where 218. Iustification speciall pleaded in Battery 226. Issue of things in severall places 229. K. KIngs Title not lost 164 Knight ought to be returned in the Pannell where 193. L. LAw Gager lies not if the except be per manus proprias 25 Lease to two determined upon the death of one where 30. Lease of a Reversion sans Attornament where good 30. Legacy of Land not suable for in Court Christian 32. Legacy of a Chattell suable for in Court Christian 34. Locallity not to be made transitory 35. Limitation is taken strictly grant aliter 39. Lessee at will cannot grant over his Estate 43. Law mistaken where it is hurtfull 41. Letters of Administration ought to be shewed 9. Law waged where 53. Law wager by a false party 55. Letter of an attorny where naught 94. 95. Law Gager lies not in debt for sallery 60. Law Gager where 70. 65 Lessee at will if he determine his Will Devis au yet shall pay the intire Rent 90. Lease to try a Title of Lands in the hands of many 129. Lease to be executed by Letter of an Attorney how 129. Lease made to three for their lives with a Covenant that the Land should remain to the survivor for 90 years is a good Interest in the Survivor 136. London how houses passe without inrollment 141. 142. Liberty to make Leases 169. Lease for life to three where it was naught 175. Lord of Parliament not appearing shall forfeit 100 l. 193. Lunatick where an Action ought to brought in his name 197. Levant and Couchant is certainly fufficient 198. M. MIstryall the Ven. fac mistaken 17 Mistake of the Iury 18 Misprision of the Clerk amended 26 Monasteries dissolved onely those Regular 39 Mistake by the Court no prejudice 42. Mistriall 7. Missworn fellow Actionable 9. Medietas Linguae where 45. Master chargeable where 64 Misprision of the Clerk amended after tryall 88. Mannor by that name what will passe 155. Mistake of a day of an Act by way of Bar not prejudicial 196. Marshalsey hath no authority to hold plea of Debt except one party be of the houshold 199 Marshalsey no Iurisdiction 199. 200. Master cannot have an Action for the loss of Service if the Servant die of the beating 205. N. NOtice not necessary 10 Non est inventus where the party did escape 12 Nusance where it lyeth 4. Non damnificatus pleaded 7 Noverint for non assumpsit 8. Notice where needfull 46. Nul tiel Record pleaded to a Plea of Outlawry 84. Non damnificatus pleaded 118. Nisi prius amended by the Roll 133 Nonage tryed where it is alledged not where the Land lies 150. 151. Non-tenure pleaded 153. Nisi prius the Record amended upon motion 156 Nullum tempus occurrit Regi 166. Negativum praegnans 172. Non residency the Statute 13 El. a generall Law 208. New Asignment where not good 217. Bar to it 236. Nihil dicit 237. 238. Non omittas 240. O ORdinary cannot make a division 32. Ordinary his power 45. Outlawry no Plea where 55. Outlawry in the Testator 55. Originall want of it after verdict no Error 97. Obligation discharged why 98. 99. Originall against four count against three without a Simulcum adjudged naught 130 Ordinary and Patron their severall Rights 202. P. PArdon generall de effect 10. Promise by an Infant not good 11 Papist to a Bishop actionable 12. Proviso implicit where good 14. Perjured knave actionable 15. Proviso 18 19. Pyracy no excuse in an Action of Covenant 21. Plea in abatement 27 in Assise 28. Premunire in a Parson 30. Pleas severall cannot be in a joint debt or contract 30. Proof how far extendible 33 Where required and where not 34. Pardon crimen legitur non tollitur 34. Priviledge from Arrest where not to be allowed 84 Prender and Render the difference 34. 35. Prescription where good 35 Property not altered upon a Scire facias 41. Punishment corporall not to be imposed for the default of a deputy where 45. Proviso Executory and executed the difference 8. Priviledge respective 47 Payment where peremptory 49 Plea made good by verdict 52 Payment when upon demand 52 Pardon generall pleaded 56. Plea to a Bond taken by the Sheriff 58. Payment to the Heir and not to the exceutor where good 64. Priviledge of an Vniversity where not to be allowed 75. Plene adm nistravit no Plea where 77 78. Proprietor sufficient 88. Priviledge of Parl. pleaded 92 Plea naught for want of traverse 98. Primo deliberat shall not be pleadded sans traverse 105. Propriety of goods cannot be in abeyance 132. Prescription and custome do differ how 132. Processe misawarded where helped by the Statute 134. Plea where it shall be in discharge but not in Barr of an obligation 109. Partition Processe in it 156. For whom it lies 157 Partition error in the first Judgement 157. Partition in another Writ was pleaded Presentment of a Clerk by words good 162. Patrons 6 moneths 165. Proprietate probanda 167. Plea naught 173. Pannell of hab corp
21 H. 8. grants administration to one which is next of Blood that he cannot repeale it but Coke cheife Justice seemed the contrary and that he incurred the penalty of the statute only And if an Administration be granted to one which is next of Blood upon which the first Administrator brings an action of debt hanging that upon suggestion that the first Administration is void another Administration is granted and it seems that this second Administration granted upon this suggestion shall be repealed from the first though it be generall and without any recitall of it But if the second be declared by sentence to be void from the beginning then the first remains good Action upon the Case was brought for these words that is thou hast killed I. S. And it seems that the action doth not lye for a man may kill another in execution and as Minister of Justice or in Warr in which things killing is justifiable Michaelmasse 1611. 9. Jacobi in the Common Bench George Barney against Thomas Hardingham IN Trespasse for breaking the House and taking of a Cowe the Defendant pleades that the King and all those whose Estates he hath in the hundred have had Turne and at the Court held such a day it was presented that the Plaintiff hath incroached upon the high Way for which he was amerced and the amercement was affirmed by two Justices of peace according to the Custome of the Turne aforesaid And that he being Bayliff of the hundred by vertue of a Warrant to him in due manner made and directed hath entred the said house and taken the said Cowe for distresse for the said amercement and carrying it away which is the same Trespasse and so demands Judgement upon which Plea the Plaintiff Demurred And by Haughton Serjeant for the Plaintiff the Plea in Barr is not good and first he conceived that it was not good insomuch that the King hath made his Prescription by whose Estate and he intended that he could not make his Prescription by whose Estate insomuch that this lies in grant as it is 12. H. 7. 15. where it is agreed that by nothing which lieth in grant a man may Prescribe by whose Estate Also the Plea is that the King was seised in his Demesne as of Fee where it ought to be in Fee only insomuch that it is a thing only in Jurisdiction or Signiory and not Manurable as in 8. H. 7. 7. H. 4. 30. assis In an Action of Debt upon Reservation made upon Lease of a Mannor and hundred it is agreed that the hundred is not in Demesne nor Manurable Also the Plea is not good insomuch that it is not Pleaded before whom the Turne shall be held And allwaies when a man claimes a Court by Patent he ought to shew before whom his Court shall be held otherwise it shall not be good so of Conusance of Pleas otherwise it is if it be in a Turne for that shall be intended a certaine ancient Court See 44. Ed 5. 17. 1. H. 4. 6. 6. H. 4. 1. Also the Statute of Magna Charta chap. 35. requires that it should be held in the accustomed place and so it ought to be alledged or otherwise it is against the Statute and for that it shall not be good for it is of the nature of Sheriffs Turne and derived out of that See the book of Entries in Replevin 2. Also the Statute of Magna Charta chap. 14. appoints that the officers shall be the Sheriffe and this is not pleaded but generally by two Justices of Peace upon their Oath And also it is not pleaded to what Sum the amercement was made Also it is pleaded that he being a Bayliffe of the Hundred by vertue of a Warrant to him in due manner directed and made hath taken the distresse and doth not plead the Warrant certainly nor the place where it was made And for that the Plea is not good Also he pleades that he took and led away the Cowe in name of distresse and he ought to say that he took it and impounded it for that he tooke it and carried it away imports that he tooke it to his owne use 9. Ed. 4. 2. 20. Ed. 4. 6. And so he concluded that the Barr is not good and praied Judgement for the Plaintiff And Barker Serjeant for the Defendant conceived that the Prescription for the Hundred by which the Estate was very good and for that See 12. H. 7. 17. a. 8. H. 7. 13. H. 7. Also he intended that the title to the Court is very good notwithstanding that it is expressed before that it shall be held insomuch that the Law takes notice of the Turne of the Sheriffe and that he is Judge of that and that the Affirance is very good insomuch that this is according to the Custome of the Turne aforesaid And the Warrant of the Baylifâ—e is very well pleaded and more is pleaded then need for it is the duty and appertaineth to his office to gather the amercements and he might do that without Warrant by force of his office But if it be upon plaint between party and party otherwise it is and for that see the book of Entries 553. And also the charge in the Action is for that that he took and carried away and of that he made Justification and he cannot Plead otherwise and to the whose Estate c. That a man cannot Prescribe to have a thing by whose Estate which lieth meerely in grant without shewing of a Deed yet when that is appurtenant to another thing as here the Court is to a Hundred it may very well that do and 33. H. 8. B. Leete when the penalty is Presented by the Jury it selfe there needs not any affirance And so he concluded that the Plea in Barr is very good and praied Judgement upon that for the Defendant And Coke cheife Justice said that Turne of the Sheriffe is derived of Turner which signifies to ride a Circuit and so of that is derived Turner and of that the Turne of the Sheriffe and of this is derived the Hundred and from this the Leete And it seems to him that he ought to plead before that the Court shall be held insomuch that it is against Right and so it was adjourned Michaelmas 1611. 9. Jacobi in the Common Bench. Hill against Upchurch NOTE that Coke cheife Justice saith that it was adjudged in 27. of Eliz. For the Mannor of Northhall in the County of Essex that admitting that a Copy-hold may be Intailed by the Statute that then Custome that a surrender shall be a Barr or discontinuance of such Estate tayl is good for as well as the Estate may be created by Custome as well it may be Barred or discontinued by Surrender by Custome Brandons Case NOTE if a Mannor or other signiory be extended upon a Statute and a Ward falls which is a sufficient value to make satisfaction of the Extent yet this shall not be
which was Obligamus nos vel quemlibet nostrum adjudged to be joint and severall at the Plaintiffs Election Action of Debt upon an Obligation to perform an award and the breach assigned for exhibiting a chancery Bill and adiudged no Breach Action of Debt for Tithes the Defendants time ended before the Coâ—n carried yet held good for the Plaintiff An Action will lie against a stranger that shall carry away the Corn before the Severance Dower may be brought against the Heir or Committee of the Ward Nota. He in Reversion received after Default made by Tenant for Life Return of the Sheriff adjudged insufficient being too general No Writ of Error lies untill the value be inquired upon Implication not good in a Surrender though it be in a Will Challenge because the Sheriff married the Daughter of the Lessors Wife and held no cause Nota. How to execute a Lease to try a Title the Land being in many mens hands Originall against four and count against 3. without a Simulcum and held naught The intent of a will must be certain and agreeable to Law Nota. How to execute a Lease by Letter of Atturney A Venire facias of the Parish adjudged good A mistake of the Cursitor in the Originall amended after Triall Nota. Though the Defendants Plea be naught yet the Plaintiff shall not recover because he shewed not any Title by his replication The question is upon the Statute of 32 H. 8 upon Feoffements made by Husbands during the coverture A verbal averment shall not overthrow a will The mistaking of the Town not hurtfull in a Will Property of Goods cannot be in obayance Difference between Prescription and Custome Copihold Land cannot be demised for three years without license or custome Record of Nisi prius amended by the Roll. Concord with satisfaction a good Plea in Eiectment Misconveyance of process what it is and helped by the Statute A feme covert cannot make a Letter of Atturney to deliver a Lease upon the Land When a demand shall be made to the person and when upon the Land A Lease made to three for their lives with a Covenant that the Land should remaine to the survivor of them for ninety yeares a good interest in the survivor A precise Verdict makes the Declaration good which otherwise is naught A demand of Rent to avoid a Lease upon a condition ought to be in the most open place After an Imparlance cannot plead in abatement 22 H. 6. 6. Foxlies Case 5 Rep. 111. The day of a Copihold of Court roll traversed and adjudged naught Houses in London passe by the delivery of a bargain and sale without inrolment An Ejectment will not lye de aquae cursu A Servant is a sufficient Ejector if he dwell with the pretended owner He that is a Purchaser of Copihold hath nothing in it nor can he surrender to another before admittance How an Abatement shall be traversed 1 E. 4. acr 1 E. 4. 9. acr The Bill amended after a Writ of Error brought and before the Record was removed Where the Prenomen destroyesthe quantity inthe declation Where words in a Declaration shall be voyd rather then the Declaration shal be voyd Nonage shall be tryed where it is alleadged and not where the Landlyes Essoin lies in a writ brought by Journes account although he was essoined upon the first Writ By Deed an implicationbe intended Nota. By the Name of a Mannour the Land in all the Villiages will pass Nota. Action brought by the Servant in his own name part of the Goods being his Masters Nota. Nota. The Record of Nisi prius amended upon motion The Process in Partition Error in Partition upon the first Judgement Defendant pleads he had brought a Writ for the same land and adjudged no plea. Process in a Quare Impedit Exception taken to the Venire and over-ruled Severall Quare impedits may be brought against severall men Admittance of a Resignation by fraud takes not away the Kings Title The state is determined by the death of Tenant in Tail A presentment by words good Nota. A subsequent debt to the Qu. related to award an assurance made upon good consideration The King hath lost his presentation by the Clerks death Defendant pleads another writ depending against the said Bishop good The Bishopsplea shall not prejudice the Incumbent Nota. Liberty to make Leases A devise for years in confidence the condition must goe to the estate and not to the use The scisin of rent reserved upon a Feosment within the time of limitation not to be traversed Nota. The beast of a stranger shall not be distreined for rent except they have been upon the land some time Demand not necessary in a Replevin for rent Nota. Exctâ—tion to the advowry too late after judgment entred Replevin not within the statute of 3. Iac. Iudgment arrested for that the plea was naught Nota. Nota. The Plea naught for want of amendment Amends made to the Bailiff not good If one inclose part it is an Extinguishment of Common for cause of vicinage Avowry amended after Entry by consent One of the Juroâ—s names mistaken in the Pannell of the Return and amended upon the Sheriffes Oath that he was the same man If two men distrain one Mare and both have Judgement no Return Court Baron in order to the Mannor Nota. Nota. A lease for life to three to hold successively naught The pannell of the Habeas Corpus amended upon Oath Nota. Atturnment not necessary for a Copy-holder Demand necessary for a Nomine pene Common Appurtenant and purchase part the Common is gone but not if Appendant Nota. Nota. Demand of Rent service upon the Land sufficient Nota. A Commoner may take the cattell of the Lord damage fesant Judgment arrested for not shewing in what place the Messuage did lye to which the Common did belong Common when the field and acres unsown the sowing of parcell shal not debar him of his common in the residue When a Deed is perfected and delivered as a Deed one agreement after pleaded in defeasance thereof and when the agreement is parcell of the Original contract it may be pleaded The Defendant in his Demurrer â—nswers not the whole Declaration and Judgement reversed The mistake of the day of an Act by way of Bar not prejudiciall A confession after an issue joyned refused A Constable cannot detaine one but for Felony Marshalsey hath no authority to hold plea in debt except both are of the Houshold Judgment before a wrong Officer erroneous The Court could not mitigate damages in trespass which was locall The Defendant justifies the imprisonment by the command of the Maior of London and naught Just of Peace cannot command his servant to arrest in his absence without warrant in writing If a servant be beaten dye the Mr. shall not have an action for the losse of his service Declaration shall not abate for false Latin A man cannot prescribe to be a Justice of the Peace If
REPORTS OF Diverse Choice CASES in LAW TAKEN By those late and most judicious Prothonotaries of the Common Pleas RICHARD BROWNLOW JOHN GOLDESBOROUGH Esq rs WITH DIRECTIONS HOW TO proceed in many Intricate Actions both Reall and Personall shewing the Nature of those Actions and the Practice in them excellently usefull for the avoyding of many Errours heretofore committed in the like Proceedings fit for all Lawyers Attorneys and Practisers of the Law Also a most Perfect and exact Table shewing Appositely the Contents of the whole Book Solon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed by Tho Roycroft for Matthew Walbancke at Grays-Inne Gate and Henry Twyford in Vine Court in the Middle Temple 1651. THE PUBLISHER TO THE READER THese Reports coming unto my hands under the Commendations of men of so much sufficiency in the knowledge of the Lawes I could doe no lesse then fear that it would prove too obvious a neglect of Common good to keepe them in the darke therefore here I present them to the World to the end that all men may take that benefit by them now being in Print which some few only have hitherto injoyed by private Copies And indeed I thinke I shall put it beyond dispute when I name the two worthy and late famous Prothonotaries M r. Brownlow M r. Goldesborough whose Observations they were that they will both profit and delight the Reader since there are contained under these heads viz. Actions upon the Case Covenant Account Assise Audita querela Debt upon almost all occasions Dower Ejectment Formedon Partition Quare Impedit Replevin Trespas Wast Many excellent conclusions as well of Law as of the manner of pleadings Demurrers Exceptions Essoins Errors and the qualities of many VVrits with other various and profitable Learning in which may be found the number of the Roll for so many as have had the luck of a full debate and definitive sentence And for the rest though there is no Judgment in them so as to determine what the Law is yet at least they will afford a very considerable compensation for the Readers pains by opening unto him such matters as are apt for Argumentation and may acquaint his Genius with the manner of Forensall Disputations from which benefit to detain you any longer will deserve a Censure therefore I remit you to the matter it self which I am confident the Printers faults excused will easily effect its owne praise beyond my Ability SPECIALL OBSERVATIONS AND RESOLUTIONS OF THE JUDGES OF THE COMMON PLEAS Vpon severall Actions upon the Case there depending and adjudged PEdley versus Langley Hill 14. Ja. rotulo the Plaintiff brought his Action for these words You are a Bastard for your Father and Mother were never married The Defendant pleads that the Plaintiff was a Bastard and justifies the words laid and it was held by the Court that this Issue should be tried by the Countrey and not by the Bishop as in other Cases SMayles one of the Attourneys c. versus Smith for these words he meaning the Plaintiff took corruptly five Marks of Brian Turnor being against his own Client for putting off and delaying an Assize against him and after a Verdict exception was taken against the Declaration for that the Plaintiff did not expresly alledge that at the time of speaking the words He was an Attourney but layd it that he had been an Attourney The Court held the words would bear Action MAle versus Ket Hill 14. Jac. rotulo 1506. for these words William Male did steal my Corn out of my Barn Judgement for the Plaintiff The Court held that an Action would lie for these words You are a Thief and have stollen a Cock which was but Petty Larceny COwte versus Gilbert Hill 10. Jac. rotulo 3176. Thou art a Thief and hast stollen a Tree Judgement that the Plaintiff should take nothing by his Writ The like Thou art a Thief and hast stollen my Maiden-head no Action HArding versus Bulman Hill 15. Jac. The Plaintiff declares that in such a Term he had brought an Action of Case against B. for scandalous words to which he pleaded not guilty and at that Triall gave in Evidence to the Jury to take away the Plaintiffe Credit and Reputation that the Plaintiff was a common Lyar and recorded in the Star-chamber for a common Lyar by reason whereof the Jury gave the Plaintiff but very small Damage to the Plaintiffs Damage of c. The Defendant pleads not guilty And it was moved in Arrest of Judgement that the Action would not lie And of that opinion the Court seemed to be BRidges one of the Attourneys versus Playdell for words You meaning the Plaintiff have caused this Boy meaning A. W. then present to perjure himself Judgement for the Plaintiff STone versus Roberts Mich. 15. Jac. rotulo 635. for these words Thou art a Witch and an Inchanter for thou hast bewitched Stronges Children no Action lies but if thou say Thou art a Witch and hast bewitched Children and that they are wasted and destroyed they are actionable SCarlet versus Stile Trin. 14. Jac. rotulo 541. for these words Thou didst steal a Sack and Curricomb and I will make thee produce it and thou didst steal my Fathers Wood and didst give it to a Whore The Defendant justifies that such a day the Goods were stollen and there was a common fame and report that the Defendant had stollen them and upon that report the Plaintiff did vehemently suspect that the Defendant had stollen them and thereof did inform a Justice of the Peace and complaining of the Defendant to the Justice and informing him of the Premises did speak the words before mentioned If a Felony be committed it is good cause to arrest one for Felony but not to speak words to defame one If there be two Issues in severall Counties in Trover and one is tried and Judgement and Execution of the Costs and Damages and afterwards the other Issue is tried and Costs thereupon the last is erronious as to the Costs Broccas Case Note Trover was brought against Husband and Wife for Goods which came to the hands of Husband and Wife the Conversion was alleadged to be by the Husband alone for the Wife could not convert And the Court held that the Action would not lie against the Wife MOse versus Canham Mich. 6. Jac. rotulo 508. The Plaintiff declares that one Levet was indebted in such a summ and for the payment thereof had delivered to the Plaintiff divers Goods of the said Levets the Defendant in consideration that the Plaintiff would deliver to the Defendant the said Goods promises to pay the Plaintiff the money due from Levet and exception was taken to the Declaration for that the certainty of the Goods were not expressed and for that the consideration was but collateral Another Exception for that the Plaintiff might grant the Goods over but the Court held the contrary And Judgement for the
him according to his promise The Defendant pleads Non assumpsit And a Verdict for the Plaintiff and moved in Arrest of Judgement for that the Plaintiff at the time of the Contract was an Infant and that he could not perform his promise by reason of his Infancy and therefore the promise void and another Exception for that it was not alleadged in what sum the Plaintiff and his Surety offered to be bound and Judgement was that the Plaintiff Nihil capiat per breve JAcob versus Songate Trin. 9. Jac. rotulo 2776. An Action upon the case brought for this word Perjured The Defendant justifies that it was found by Verdict that the Plaintiff was perjured but no Judgement entred upon that Verdict And whether the Plea were good being there was no Judgement was the Question and it was adjudged no Bar because no Judgement was given in the first-Action and so Judgement entred for the Plaintiff CRuttall versus Hosener Pasch 16. Iac rotulo Action of the case for these words He meaning the Plaintiff hath caught the French Pox and brought them home to his Wife And Judgement for the Plaintiff THornton versus Iepson The Plaintiff being a Currier brought an Action upon the case for these words He is a common Barretor but the words would not lie for a man of that Profession but would lie for a Justice of Peace or Lawyer IReland versus Smith Hill 9. Iac. rotulo Action upon the case brought for these words You Norgate take part against me with Ireland who is a Papist and hath gotten a Pardon from the Pope and can help thee to one if thou wilt The Plaintiff laid a communication between the Defendant and Norgate and alleadges himself of the age of 40. years and not above because it might appear to the Court that he was born within Queen Elizabeths Reign The Court held the Action would not lie as it was adjudged in Halls case and for this word Papist no Action will lie If I deliver my Goods to you to keep and I request them and you deny the Delivery of them now an Action of Trover will lie otherwise it is without a Deniall if I distrain Cattle I must not use them WArter versus Freeman Mich. 15. Iac. rotulo 1941. Action upon the case brought for that the Defendant sued out a Fieri facias upon a Judgement which he had against the Plaintiff upon which Judgement the Defendant had before sued out a Fieri facias and the Sheriff of Oxford had upon the first Fieri facias returned that he had levied the Debt and Damages and that they remained in his hands for want of Buyers and the Defendant knowing that the Sheriff had levied the Debt and Damages and intending to charge him again prosecuted another Fieri facias and that the Sheriff had again levied the said Debt and Damages and hath paid the Debt and Damages to the Plaintiff to wit at Westminster in Com. Middlesex where the Action was brought and Judgement after Debate was given for the Plaintiff though the Defendant alleadged that the Fieri facias was an Act in Law and so no cause of Action against him PArkhurst versus Powell vic Denbigh Mich. 15. Iac. rotulo An Action of the case for a false Return of a Capias utlagat and declares that he prosecuted a Capias utlagat directed to the Sheriff of Denbigh where the Defendant inhabited and delivered the said Writ to the Sheriff to be executed and the Defendant being then in the company of the Sheriff and might safely have arrested him did not but suffered him to escape and returned that he was not to be found and upon Not guilty pleaded it was tried in the County of Middlesex where the Action was brought and moved in Arrest of Judgement that the Triall ought to be in Denbigh because the not arresting was the principal matter but because the Action was grounded upon double matter the Plaintiff had his Election to bring his Action either in the County of Denbigh or Middlesex by the whole Court BLand versus Edmonds Pasch 16. Jac. rotulo 444. Action upon the Case brought for these Words Videlicet George Bland is a troublesome Fellow and he did combine with thee to trouble the Countrey and I hope to see thee at the next Sessions indicted for Barratry or for sheep-stealing as George Bland was at the last Sessions for Bland was indicted the last Sessions for sheep-stealing And it was held by the whole Court that those Words would not bear an Action the Plaintiff layed the Words to be spoken to one Jo. Eagle and the Declaration was held naught and insufficient because it was not averred that the Plaintiff was not indicted at the Sessions BRadshaw versus Walker Hill 16. Jac. rotulo Action upon the case brought for these words Videlicet Thou art a filching Fellow and didst filch from A. B. 4. l. And Judgement that the Plaintiff should take nothing by his Writ for it shall not be intended that he stole the money ADams versus Fleming Hill 16. Jac. rotulo 890. Action of the case brought for these words Videlicet He hath forsworn himself before the Councel of the Marches meaning the Councel of the Marches of Wales in the Suit I had against him there and I will sue him for Perjury there And after Verdict for the Plaintiff moved in Arrest of Judgement that the words were not actionable for their uncertainty because the Court could not take notice that they had authority to hold plea in matters of record Judgement for the Plaintiff for these words Thou art a false forsworn Knave for thou didst take a false Oath before a Judge of Assise to hang a man GOre versus Colthorpe Trin. 5. Jac. rotulo The Declaration was in consideration that the Plaintiff would give credit to E. C. then servant to the Defendant for any thing the said E. should deal for to the use of the Defendant with the Plaintiff promised that he would see the Plaintiff contented that which the said E. should deal for with the Plaintiff for the use of the Defendant any way when the said Defendant thereof after it should become due should be requested and a special Verdict by which it was found that the Defendant promised to see the Plaintiff contented that which the above named E. C. should deal with the Plaintiff for the use of the said Defendant any way The Judgement of the Court was that the Verdict did not maintain the Declaration because for collaterall matters which are not Duties a Request is material and are not like a Duty as for Debt which is due and no Day of payment expressed that shall be alleadged to be when he shall be thereunto requested generally For if I sell my Horse for ten pounds and no Day of payment that shall be alleadged in the Count Cum inde requisitus esset And one case of Peters was cited which was
for the intent of a Will must be certain and agreeable to Law and there must not an intent out of the words of the will be sought out and the whole Court held that the Plaintiff was barred YOung versus Radford Pasch 10 Jacobi Rotulo 1515. Action upon an Ejectment brought and the Jury found a speciall Verdict and the Case was that Elizabeth Rudford was possessed of a house full thirty years and she took a Husband the Husband and Wife morgage the Term the Wife dies and the Husband redeems the Land and marries another wife and then dies and makes his Wife Executrix and she maries the Lessor The Defendant takes Administration of the Goods of the first Woman and it was held void and Judgement for the Plaintiff PEttison versus Reel Pasch 12 Jacobi Rotulo 2350. An ejectment brought and Triall and Verdict for the Plaintiff and exception taken in arrest of Judgement to the Venire Facias because this word Juratum was omitted for the Writ was posuerunt se in illam and omitted the word Juratum and this was amended by the Court. When a Title is to be tryed upon an Ejectment and a Lease to be executed by Letter of Attorney the course is this that the Lessor do seal the Lease onely and the Letter of Attorney and deliver the Letter of Attorney but not the Lease for the Attorney must deliver that upon the Land and upon an Ejectruent brought of Lands in two villages of a house and forty Acres of Land in A. and B. and a speciall Entry in the Land adjoyning to the house to wit the putting in of a Horse which was drove out of the Land by the Defendant and this was adjudged a good Entry for the Land in both the Villages by the opinion of the whole Court ARden versus Mich. 12 Jacobi The Plaintiff delivers that whereas such a day and year at Curdworth in the said County did demise to the Plaintiff two Acres of Land with the Appurtenances in the Parish of C. and the Venire facias was of the Parish of C. and after a verdict exception was taken because it was not of Curdworth but it was adjudged good by the Court and to prove the Lease made Lanheston an Attorney swear that the Lessor sealed the Lease and subscribed it but did not deliver it and by word gave authority to one W. to enter into the Land and to deliver the Lease upon the Land to the Plaintiff as his Deed and by that authority he entred and delivered the Lease as his Deed to the Plaintiff and it was adjudged good MArsh versus Sparry Hill 14 Jacobi Rotulo 1859. An Ejectment brought ex dimissione G. W. and the Originall was made ex divisione and after a Triall Serjeant Hitchaw moved the Court that the Originall might be amended and make ex dimissione and the Court granted it and the Cursitor was ordered to amend it and also in the end of the Originall it was written Barnabiam and it should have been Barnabas and that also was ordered to be amended by the Court. CRadock versus Jones Trin. 14 Jacobi Rotulo 2284. An Ejectment brought upon a Demise made by Cotton Knight the Defendant pleads not guilty and a Challenge to the Sheriff and prayes a Venire facias to the Coroners because the Sheriff is cozen to the Plaintiff and shews how and because the Defendant did not deny it a Venire facias was awarded to the Coroners and after a verdict it was alledged in arrest of Judgement because it was not a principall Challenge and a Venire facias de novo awarded to the Sheriff PArkin versus Parkin 13 Hill Jacobi Rotulo 979. And Ejectment brought and verdict and after a Triall Exception taken to pleading of a Deed inrolled the Action was brought in the County of York and pleaded thus ut infra sex menses tunc proximos sequent coram milite uno Justic c. in West-Riding Com. Eborum ad pacem c. conservand Assign W. C. Clerico pacis ibidem debito modo de Recor. irrotulat and Exception was because the inrollment was not made according to the Form of the Statute because it did not appear that the Justice before whom the Deed was inrolled was a Justice of the Peace of the County of York but of the West-Riding and it was not alledged that the Land did ly in the West-Riding and note that the Defendants Plea in Barr was insufficient because the Defendant did not confesse nor avoid the Count and the Plaintif by his Replication doth not shew any Title to the Land because it did not passe by the inrollment and so he hath lost his Suit and although the Barr be insufficient yet notwitstanding the Plaintif shall not recover GReenely versus Passy Hill 5 Iacobi Rotulo 808. An Ejectment brought the Defendant pleads not guilty and the Jury found it Specially that one Woodhouse was seised of Land in Fee and did infeof the Husband and Wife to have and to hold to the said Husband and Wife and the Heirs of their bodies between them to be begotten by vertue of which Feofment the Husband and Wife were seised of the whole Land in Fee Tail to wit c. the Husband infeofs the youngest Sonne of the land in Fee and afterwards the Husband dies and the woman survives and afterwards she dies before any Entry by her made into the Land and further find the lessor to be the eldest son of their bodies and that the younger Son infeoffed the Defendant and afterwards the eldest Sonne entred into the Land and made the lease in the Declaration and whether the Entry of the eldest Son was lawfull or no was the question upon the Statute of 32 H. 8. that Fines or Feoffements made by the Husband c. during coverture be or make any discontinuance c. or be hurtfull to the said wife or her Heirs and Sir Edward Cook held that the Heir is not barred of his Entry by the Statute PAcy versus Knollis Trin. 6. Iacobi Rotulo 291. An Ejectment brought the Defendant pleaded not guilty and the Jury found it Specially and the question is upon the words of the Will to wit And I give to Katharine my Wife all the Profits of my Houses and Lands lying and being in the Parish of Billing and L. at a certain street there called Broke-street and the Jury found that there was not any Village or Hamlet in the said County called Billing and that the Land supposed to be devised lieth in Byrling-street no mans verbal Averment shall be taken or admitted to be contrary to the Will which is expresly set out in the Will If I have two Thomas to my Sonnes and I give it to Thomas it shall be intended my youngest Son because my eldest Son should have it by Discent the Will was held by all the Court to be good HEllam versus Ley Trin. 7. Jacobi rotulo 2718.
although another take away part of my Common yet no action lyeth As if one beat my servant lightly except the Master lose his service no action lieth And if my friend come and lye in my house and set my neighbours house on fire the action lyeth against me and Judgment for the Plaintiff HAtton versus Hun Trin. 13. Jacobi rotulo 3314. In Trespasse and Imprisonment the Defendant justifies by vertue of a Capias and the Plaintiff did afterwards escape and he being Sheriffe did follow him by vertue of the said Warrant taken upon the Capias the Plaintiff replies that he escaped by license of the Sheriffe and traverses the latter taking by vertue of the Warrant and the Court held the traverse idle because the Plaintiff had sufficiently confessed and avoided and if he escaped by the Sheriffs License that ought to be the thing put into issue and not the traverse PAtry versus Wilsh Trin. 9. Jacobi rotulo 1055. An action of Trespass brought wherefore by Force and Armes he broke the Plaintiffs Close and eat his Grasse c. The Defendant justifies for common of pasture and saith that he was seised in Fee of one Messuage with the appurtenances in G. and used to have common for all his Cattell levant and couchant upon the said Messuage And it was moved after a verdict in arrest of Judgment by Sergeant Nichols that the plea was insufficient because the certainty of the Cattell was not expressed as for 200. or the like but the Court held the contrary that levant and couchant is a certainty sufficient and all the Books prescribe for a Common by reason of a Messuage RInghall versus Wolsey Mich. 11. Jacobi rotulo 820. An action of Trespass brought wherefore by force and Armes the servant of the Plaintifs out of the service of the said Plaintiff hath taken and laid to be at H. The Defendant justifies that one was possessed of Corn at S. And that the said servant by the command of his Master had carried away the Corn and that the Owner came to the defendant being Constable and prayed him to detain the servant untill hee could procure a Warrant of a Justice of Peace and traverses that he is guilty at H. The Plaintiff demurres that it was held by the Court a naughty plea First because the Constable could not detain any man but for Felony And secondly the traverse is naught because the Trespass is in the same County and so he might have justified as well in H. as in S. DArney versus Hardington Pasch 9. Jacobi rotulo 1857. An action of Trespass brought to which the Defendant pleads a justification for an Amerciament set in the Sheriffs turn to which Justification exceptions were taken First because the Defendant justified by vertue of a precept to him lawfully granted saith not at what place Secondly he prescribes for the turn to be held and doth not any or what estate c. And Hutton said that a prescription for a turn or one hundred Court by what estate is naught because a hundred is not manurable but lies in grant but he ought to have said that the King and all they that were seised of the said Hundred have had and from the time c. And my Lord Cook said that a prescription by what estate for a thing incident to a Mannor is good for an Hundred that lies in grant it is naught And he and Warburton held that except it was shewed before whom the turn was held it was naught because where any thing is taken by common right as the Sheriffs turn it ought to be holden before the Sheriff as in the prescription it ought to be shewed before whom the turn was held or else it would be naught ROberts versus Thacher al. Hill 11. Jac. rotulo 1928. An action of Trespass brought wherefore by Force and Arms the Close and House of the Plaintif at A. did break and a certain Cow price c. took The Defendant saith that the Plaintiff ought not to have his Action against him because he saith that the Close House is one Messuage c. in A. aforesaid and that before the time in which c. such a one was possessed of the said Cow as of his own proper Cow to wit at A. aforesaid and being thereof so possessed certain Malefactors unknown to the said c. before the said time in which c. the said Cow out of the possession of the said B. did feloniously steal take and lead away whereupon he made Hue and Cry and thereupon hee had intelligence came and was in the possession and custody of the Plaintiff and B. upon notice thereof did request the Defendant to ask the Cow of the Plaintiff and to bring her c. By reason whereof the Defendant the said time in which came to the said Messuage by the usuall way by and through the said Close c. to demand c. And the Defendants then there finding the aforesaid Cow in a wall'd parcell of the Messuage they took the Cow from thence and brought her to the said B. and to him delivered her as c. which is the same Trespass to which plea the Plaintiff demurres and it was adjudged a naughty Justification for these reasons First because it doth not appear but that the Plaintiff had good right to the Cow Secondly because the Defendant took the Cow without demand And thirdly it is not pleaded that the Defendants were servants to the said B. R. and that he did it by his command and therefore Judgment given for the Plaintiff HAll versus Stanley al. Pasch 9. Jacobi rotulo 2289. An action of false imprisonment The Defendant as to the whole Trespass except the Battery and Imprisonment and keeping in prison not guilty And as to that pleads that the Marshals Court is an ancient Court c. and so justifies because the Plaintiff was the pledg of T. C. to the Defendant in an action of trespass upon the case in an indebilat assumpsit generall and thereupon a Judgment against C. and a Capias awarded and a non est invent returned and thereupon a capias awarded against Hall the pledge according to the custome by vertue whereof the said Hall was taken and detained and traverses that he was guilty c. of any imprisoning the Plaintiff before such a day and averres that they are the same persons And the Plaintiff replies that neither R. C. nor T. T. at the time of exhibiting the Bill were of the houshold c. The Defendant demurs and Judgment for the Plaintiff and the whole Court agreed that the Marshalls Court could not hold Plea Covenants and Contracts except both of them were of the houshold of the King and all the matters of which they could hold plea were Trespass Covenants and Contracts of the houshold and within the verge to wit within twelve miles of the Court and Doddridge said that before the Statute of 28
times used to have a Dispensation from the Archbishop and if the Incumbent in this Case should preach Heresie as the Attorney and Popham said the Ordinary might correct him for the parson is not exempted out of his Jurisdiction but his Parsonage onely but by Gawdy and the rest the Ordinary could not meddle with him for the Parson is priviledged in respect of the place but the Patron may commission and examine the matter and thereupon out and deprive him and so it happened in Coverts Case as Gawdy and Williams said wherein the Bishop of Winchester was the Donor of such a Donative 13 E. 4. LEe versus Lacon 3. Jac. In trespass the action was Land in the County of Salop and not guilty pleaded and the venire facias was made with a space for Salop but Salop was not named there And by vertue of that Writ the Sheriffe of Salop impannelled the Jury and found for the Plaintiff and the matter above specified was moved in Arrest of Judgment to wit that the venire facias was vicious and so a mistriall but by Fenner and Williams it was to be accounted his if no venire facias had been awarded And so indeed by the Statute of Jeofailes for the County to wit Salop is omitted and left out and so the Sheriffe of Salop had no power nor authority to summon the Jury because the Writ which is his Warrant is generall to the Sheriff and not naming of any County but the Court held it to be the best way to amend it and they put this difference For when the action is laid in Salop and upon a special pleading the issue is drawn into a forreign County there the entry and award of the venire upon the Will is speciall to wit to the Sheriff of that County where the issue arises to be tryed and in such case a venire facias with a blanâ—k shall not be good because it cannot be judged to which of the Sheriffs the venire was to be awarded and upon that incertainty it shall be naught but when the generall issue is taken or the matter is triable in the same County where the action is laid there the venire facias is awarded generally and must of necessity be intended to be the Sheriffe of that County where the action is laid and cannot be otherwise intended and for this reason it was but the default of the Clerk which is amendable and so it was amended BAylie versus Moon Trin. 3. Jacobi An action of Battery brought in Plymouth Court before the Major and Bailiffs there and not guilty pleaded but afterwards the issue was waived and Judgment was given for the Plaintiff and a Writ to enquire of damage was awarded to the Serjeant of the Mace that by the oath of twelve c. he should inquire and the Writ was made returnable at the next Court before the Maior and Baylifs And upon a Writ of Errour brought it appeared by the Record certified that the Writ to inquire of damages was taken before the Maior of Plymouth who was also Judg of the Court and for that cause reversed for the Writ warrants the inquiry to be before the Serjeant of the Mace who by the writ for that purpose is made a distinct Officer and so an inquiry before the Maior is not warranted by any writ And so by consequence a Judgment to recover those damages taxed before a wrong Officer to whom the Writ was not directed is erroneous which was granted by the whole Court LAxworth versus West Mich. 3. Jacobi Trespass brought for the taking of Hay severed from the ninth part of Elthorp in the County of Warwick the Defendant to part pleads not guilty and to the residue pleads a devise of the Parsonage made by Lepworth to the Defendant at Wapenbury in the same County and to inable the devise for tithes in L. alledges L. to be a Hamlet in Wapenbury to the intent that the whole Tithes may pass and upon a non devisavit the venn was of Wapenbury and found for the Plaintif that T. L. did not devise it and the other issue of not guilty found for the Defendant and moved in Arrest of Judgment that the venu was mistaken because it was of Wapenbury only and not of Elthorp and they of W. could not try a matter in E. And although it was answered that the Defendant himself by his plea had confessed that E. was but an Hamlet yet the Court held the venu mistaken for when the Plaintif declares of a Trespass in E. This by generall intendment is presumed to be a Village of which Village the matter which is there in question ought to be tryed and although the Defendant had alledged Elthorp to be but an Hamlet yet it was but to inable the devise and doth not extend to the issue before joyned upon the not guilty for part for in that issue both parties agree that Elthorp is a Village and it is a perfect issue taken which hath not any coherence with the other issue of non devisavit but if the Defendant had to the whole issue pleaded the devise as his excuse and had alledged E. to be an Hamlet of W. and that only been in issue there the venu awarded had been good of W. only but in this case it was adjudged that the venire was mis-awarded and that the Plaintif should have a venire facias de novo DElves versus Wyer Mich. 3. Jacobi The Plaintiff brought an action of Trespasse for breaking his Close and for cropping 200. Pear-trees and 100. Apple-trees and damage found to 40. l. And the Court was moved by Richardson for that the damages might be mitigated because he produced an Affidavit whereby it appeared that the party himself before the Action brought would have took 5 l. but denyed for the Court said that they could not diminish the damages in Trespass which was locall and therefore could not appear to them and the damages might well amount to 40 l. for cropping of an Orchard and so Judgment entred WOody's case Mich. 3. Jacobi Woody brought an action of false imprisonment and Battery against two who justifie and set forth that London is an ancient City and that the Maior of London is a Justice of Peace and that the Defendants were Serjeants of the Mace according to the custome of the City and that the Lord Maior to wit one Lee commanded them to arrest the Plaintif for causes to them unknown but to him known and to imprison him c. Walter moved that this Justification was insufficient because they only shewed that they were Serjeants at Mace duely elected according to the custome of the City but do not shew the Custome and Authority that they have to make Serjeants and to arrest as it is 4. H. 4. 36. in trespass the Defendant justifies that the Tower of London is within the City of London and time out of mind c. one Court was there used
amended upon oath 175. Partes ad finem nihil c. pleaded 179 Prescription for Common of pasture 177. Prescription to distrain for amendment in a Court Baron must be not in a Court Leet 183. Prescription in a good estate good for a thing incident though it be in grant 198. Prescription to be a Iustice of peace where good how naught 206. 207 Prescription good matter and various 215. 216 Possession how it enters 230 231. Posse Comitatus where it may be raised 240. Q. QVeen cannot be an Officer to the King 28 Quantity in a Declaration may be destroyed by a per nomen 145. Quare impedit Process in it 158 Quare impedit the Judgement in it 158 Quare impedit essoyn in it how and for whom 159. Quare impedit Iudgement in it where execution shall be by the Metropolitan 159. Quare impedit severall against severall men 161. Quod permittat 227. R. REquest where it is necessary 13 Release of Baron where it is no Bar 15 Rent arrear no plea in an action of Covenant 19 Release where not to be given in Evidence 24 Request upon a bond what is sufficient 30 Rent reserved where gone 32 Rent proportioned 33 Return of a Sheriff insufficient 37 Return of 21 Iurors naught 41 Rogue not actionable 9 Rieus per deceit 54 Release how and where good 62. 63 Repleader awarded 64 Release where good in respect of time 70 Release of all demands its force 81 116. Request to make assurance generally good 85 Release in Law 91 Reversioner received for default of Tenant for life 127 Return insufficient why 127 Replication not good 131 Rent received at Michaelmas or within ten dayes after 105 Reservation of Rent how to be construed 108 109 Record removed unto the Exchequer 145 146 Resignation by fraud takes not away the Kings Title 161 Replevin where and how 168 Replevin not within the Statute 3 Jac. 172 Returno habendo 173 Replevin place omitted not good 176 Resignation of a Benefice 201 Release to Tenant at sufferance void 201 Recognizance sued 225 S. SVit in Chancery is no disturbance 23 Sheriffe amerced for the false Re-return of another 36 Summons severance where 37 Statute preferred before a judgement where 37 38 Supersedeas granted where 40 Subboth where punishable 44 Scandall for keeping a false Debt-booke actionable 4 Suing in a wrong Court where actionable 4 Scandall for false measures actionable 4 Scandall for invocation of Spirits 8 Sheriffe his authority in executions 50 Scire facias for whom 57 Satisfaction what is not 70. where it is held naught 73 Steward of a Leet within the Stat. of Edward 6. 73 Successor not Executor when hee shall take benefit 94 Supersedeas upon a Writ of Error 153 Servant brought an Action nomine proprio part of the goods being his Masters 155 Seisin of Rent within the time of limitation not traversable 170 Surrender of a Copy-holder how it works 181 Sheriffe where his performance is good where naught 210 211 Scire Facias where it is proper 226 Seisin of a part of service is seisin of the whole 230 Submission to Arbitrators 232 Seu Assault Demesne pleaded in Battery 233 T. TRover where 12 Trover against an Administrator good where 16 Tenant at the time of Writ purchased where good 27 Tenant at will and at sufferance do differ 30 Tithes discharged where 31 Tithes where not suable for by the statute 31 Tithes in kind renewed where 32 Trees devised to pay Debts 32 Tithes where not of boughes 33 Tithes not set forth where action 34 Tales prayed denyed where 35 Tearm whole adjudged as one day 37 Trees in the high-way whose 42 Tryall where 49 Tenants in Common 83 Tithe of what trees to be paid 95 Tithes cannot be leased without Deed 99 Tryall upon Ejectment good matter vide 147 148 Tenant in taile his death where it determineth Estates by him granted 161 Tenant in tail grants a rent charge 179 Tales awarded 183 Trespass what process 193 Trespass is joynt or severall at the Plaintiffs election 196 Trespass laid in an Acre and the Iury found in a Rood yet it is good 210 Trespass difference 'twixt it and Rep'evin 214 Tort Demesne where good in issue where not 215 V. VAriance betwixt Count the writ of Inquiry 15 Ven mis-awarded 23 View to be there where an Office is performed 27 Villianage within the statute of limitation 38 Vse upon what 40 Venire Facias mendable where 43 Vsury what where not 52 Uncore Prist where pleadable 61 Verdict speciall 75 Venire Facias mis-awarded 76 Uncore Prist for to grant where naught 76 Venire Facias the Defendants name mistaken 79 Vsurious contract pleaded 86 Variance betwixt the specialty and Count 96 Verdict speciall upon non demisit 126 Venire Facias of the Parish adjudged good 130 Venire Facias to the Coroners ib. Verdict speciall in Ejectment 131 Verdict precise sometimes makes the Declaration good which otherwise would be naught 137 Venire Facias exception taken and over-ruled 161 Vsurpation upon the King 163 Venire Facias whence 176 Vsury the statute pleaded 180 Venire Facias de novo 194. 204. 219 Venire Facias vitious why 209 Verdict finding substance though not circumstances yet good 213 214. Venire one out of two places in the same County 228 W. WHere arrant not actionable 16 Words implyed not actionable 16 Will good by notes 44 Words actionable 2 3. Witch not actionable 2. 14 Warrant of Attorney 46 Words after the Clause of his testatus of what force they are 59 VVrit originall where abated by death 64 Will must be certain and according to Law 130 Will not to be avoided by averment 131 Will mistakes in many cases tollerable 132 Words void rather then the Declaration where 146 Warranty Collaterall pleaded in a Formedon 153 Writ another depending pleaded 163 Withernam awarded 167 168 Words of double intendment how to be construed 192 193 Wast where it lyeth for what judgment in it 237 238 Waste inquiry of it ibid. Waste who shall joyne in the action 238 Waste against whom it lies 239 240 Waste sparsim ibid. The times when these severall Officers of the Court of Common Pleas were admitted to their severall Offices Thomas Spencer Ar. Pasch 33. Eliz. Henery Compton Miles balnei Circa An. 5. Car. Jo. Glyn serviens ad Legem 5. Febr. 19. Car. Johannes Foorde 27. Jan. 27. Eliz. Gulielmus Nelson 15. Novem. 25. Eliz. Richardus Brownelow 9. Oct. 32. Eliz. Thomas Cory 9. Oct. 14. Car. Zacharias Scot. 9. Oct. 27. Eliz. Thomas Crompton 10. May 7. Jac. Johannes Goldesborough 7. May 11. Jac. Johannes Gulston 15. Oct. 16. Jac. Richardus Barnard 9. Febr. 19. Car. Johannes Pynsent Ult. May 20. Car. Laurentius Rardford 30. Oct. 23. Elizabeth Hugo Browker 28. November 31. Eliz. Thomas Waller 23. Jan. 5. Jac. Robertus Moyle 7. May 3. Car. Geo. Farmer 16. Oct. 14. Car. Gulielmus Anderson 12. 1. May
be avoyded and also he seemed that they could not examine any lay man upon his Oath But in causes Matrimoniall and Testamentary and he said that so was the common Law before the making of that Statute of Articulis cleri as it appears by a Canon made by Ottamon which was a Legate A Latere from the Pope in the 22 H. 3. and Canonicall by which is recited that where such were drawn in length because that lay men were examined upon their Oathes and therfore it was provided that lay men should be examined upon their Oathes although it did not concern causes Testamentary nor Matrimoniall the custome of England to the contrary thereof notwithstanding see Fitzherberts Natura brevium 41. a. Cromptons Justice of Peace fol. 59. b. Register 36 b. and Hyndes Case 18. Eliz. or the Margin in Scrogs case Dyer 175. b. So also Lamberts Justice of Peace that those things are to be given in Charge by the Justice of Assise and Coke saith that the Writ in the Register was framed before the Statute of Articuli cleri And also he cited one Lees Case who was committed for hearing of a Masse and refused to be examined upon that upon his Oath and had a prohibition and so he agreed that a Prohibition should be granted and upon that it was awarded accordingly Note that a Prohibition was granted to the high commission Court for that that they examined the lawfullnesse of a Marryage Symonds against Greene. NOte one suit was before the high Commissioners and 16. were brought by Pursivants before them for that that they were present at a Clandestine marraige and it was urged that this was not to be punished by any inferior Ordinary in any of their consistories for the contract was made in the Diocesse of the Bishop of Worcester and the marriage in the Diocesse of Glocester and the Preist which married them inhabited in the Diocesse of Oxford And yet Prohibition was awarded and the Justices were of the opinion that every of them for which the Pursivant was sent might have an action of false imprisonment against him for they cannot use any other processe but cytation only Admirall Court NOte that it was urged by Haugton that the intent of the Statute of 13 R. 2. chapter 5. Was not to Inhibite the Admirall Court to hold Plea of any thing made beyond Sea but only of things made within the Realme which pertaines to the common Law and is not in prejudice of the King or common Law if he hold plea over the Sea and that this was the intent of the Statute appeares by the preamble But to this Coke saith that the office of the Admirall was an ancient office though it hath been otherwise conceived by some for he hath seen Records and Libells and proceedings in the time of King Iohn where he was called Marina Anglie in the time of Ed. 3. And also he said that the words of the Statute are in the negative That is that the Admirall nor his Deputy doe not meddle from henceforth of any thing done within the Realme but only or things done upon the Sea and he said that it was adjudged in one Wrights case that a thing made at Constanticople shall notbe tried in the Admiralty for itought to be made upon the deep Sea otherwise they shall hold no trial of that see 48. or 50. of Ed. 3. 2 Ed. 2 F obligation and if a man be slaine or murthered beyond Sea the offender shall not be punished in the Admiralty Walmesly and Warburton Justices agree that if a thing be done beyond the Sea and may be tried by the common law there the admirall Court shall have no Jurisdiction But if an obligation beares date beyond Sea or be so locall that it cannot be tried by the common law there if the Admirall hold Plea of that Prohibition shall not be awarded for it is not to the prejudice of the King nor of the common law But if the party can have his remedy by the common law the common law shall be preferred And if at the common law one matter comes in question upon a conveyance or other Instrument made beyond Sea according to the course of the civill law or other law of the Nations where it was made the Judges ought to consult with the Civilians or others which are expert in the same law and according to their information give Judgement though that it be made in such forme that the common law cannot make any construction of it Michaelmas 8. Jacobi 1610. in the common Bench. IF a Parson agree contract withme that I shall keep back my own tithes if that be made after that I have sown my Corn and for the same year only this shall be good and if the Parson sue in the spirituall Court for tithes I shall have a prohibition but if it be for more years then one or before the Corn be sowed this shall not be good by Coke and Foster against Warburton and Coke said it was adjudged in the Kings Bench in Parson Boothes Case that a contract made with a parishioner for keeping back of his tithes for so many years as he shall be Parson was not good and so it was Wellowes Case here also but it was agreed by them all that such a contract or agreement for the tithes of any other was void but only of the party himself which was party to agreement and that ought to be made by way of keeping them back See before Easter 8. of James See 20 H. 6. and the 21. H. 7. 21. b. Pasche 1611. 9. Jacobi in the Common Bench. THE question was upon a motion to have a Prohibition to the President and Councell of Wales if that shall be granted without action hanging And Coke cheife Justice said that the Record of the booke of 38. H. 6. agreed with the Report and is witnesse John Prisott and 2. Ed. 4. Is adjudged in the point but yet he advised that there shall be information Walmesley Justice said that this is no action But Coke Foster and Warburton said that it is an action fufficient upon which a Prohibition shall be granted and Coke said that if they hold Plea of a thing out of their Instructions he would grant Prohibition without action hanging But if they proceed in erronious manner in a thing which is within their Instructions he would not grant Prohibition without action hanging or Information Sir William Chanceys Case SIr William Chancey was cited before the Ordinary of the Diocesse of Peterbrough and sentenced to do Pennance for Adultery and this he commuted and after that he lived in Adultery with one in his house and had two Bastards by her and continued in Adultery with her for many yeares and for that he was cited before the high Commissioners and for that that he would not allow his wife competent allimony who had seperated himselfe from her company in respect that he lived in
elect him See the Statute of 25 H. 8. That a Canon against Common Law confounds the Roiall Prerogative of the King or Law of God is void and Custome of the Realme cannot be taken away but by act of Parliament See 21 Ed. 4. 44. the Abbot of Saint Albones hath a Charter of the King to be discharged of Collection of tenthes granted by Parliament or Convocation The Clergy grants tythes in Convocation there is a clause in the grant that no one of them who shal be chosen to be collector shal be discharged of collection by colour or force of any Letters Patents and after they return the Abbot of St. Albones Collector who pleads his Letters Patents in discharge of Collector and resolved by the Court that the clause in the grant of tenthes doth not take away the exemption of discharge by the Letters Patents granted And it was resolved that if the Parish clark misdemene himselfe in his office or in the Church he may be sentenced for that in the Ecclesiasticall court to Excommunication but not to Deprivation And after Prohibition was granted by all the court and held also that a Prohibition lyeth as well after sentence as before Trinity 8. Jacobi Common Bench. ON was cited to appear in the Prerogative Court of Canterbury which was out of the Diocesse of Canterbury and upon that he praied Prohibition upon the Statute of 32. H. 8. Which willeth that none shall be cited to appeare out of his Diocesse without assent of the Bishop and Prohibition was granted And yet it was said that in the time of H. 8 and Reigne of Mary that the Arch Bishops of Canterbury had used to cite any man dwelling out of his Diocesse and within any Diocesse within his Province to appeare before him in the Prerogative Court and this without the assent of the Ordinary of the Diocesse But it was resolved by the Court that this was by force of the power Legantine of the Arch-Bishop that as Lynwood saith ought to be expressed in the Prohibition for the Arch-Bishop of Canterbury York Pisa and Reymes were Legati nati and others but Legates a Latere Hillary 1610. 8. Jacobi in the Common Bench. Beareblock against Reade IN an Action of Debt brought by Beareblocke against Reade Administratrix to her Husband upon a Judgement given in this Court The case was this the Plaintiffe had Judgment against the Husband and after sued him to an Vtlagary and upon that he brought a Writ of Errous and removed the Record into the Kings Bench and reversed the Judgement for the Vtlagary But the first Judgment was affirmed and then the Husband acknowledged a Statute and dyed And the Wife took out Letters of Administration and then the Statute is extended against the Wife and all the goods which shee had of the Intestates taken in execution After which Beareblock in the Kings Bench sueth a Scirefacias upon the said Judgment against the said Administratrix to have execution and shee pleads upon that the said Statute in Barre and the extent of that and that more then that shee hath nothing to satisfie and this was adjudged a good plea. And then the Plaintiffe being not satisfied he hrought an action of debt upon the said Judgment in this Court and in Barr of that the Wife pleaded all this matter in Barr as aforesaid upon which the Plaintiffe demurred in Law and the Judges seemed to incline that this was no Barr for though that the Wife hath not any means to aide her selfe or to prevent the extent of the Statute yet it seemed to them that this should not prevent the execution upon the Judgement and that the Wife might have Audita quaerela against the Connusee of the Statute and so to make the extent void It was not argued at this day but the point only opened see 3. Eliz. Dyer 7. H. 6. See Pasche 9. Jacobi the Residue Petty against Evans IN an Ejectione firme brought by the Lessee of a Copy-holder it is sufficient that the count be generall without any mention of the License if the Defendant plead not guilty then the Plaintiff ought to shew the Lycense in Evidence But if the Defendant plead specially then the Plaintiff ought to plead the License certainly in his replication and the time and place when it was made and in this case the Plaintiff replied that the copy-holder by License first then had of the Lord did demise and did not shew what estate the Lord had nor the place nor time when it was made and all the Justices agreed that it is not good For the License is traversable for if a copy-holder without License of the Lord make a Lease for yeares The lessee which enters by calour of that is a Disseisor and a Disseisor cannot maintain an Ejectione Firme and the Defendant cannot plead that the Plaintiff by license did not demise for this is a pregnant negative also it ought to appeare what estate the Lord had for he cannot give license to make a lease of longer time in the Tenancy then he hath in the signiory And for that if he be Lessee for life of a Mannor and he licenses a copi-holder to make a Lease for 21. yeares of a copy-hold and then the Lessee for life dies the license is for that determined though that the copy-holder be of Inheritance for the Inheritance of the Lord is bound by that And for that the Plaintiff replies that the copy-holder by license of the Lord first therefore had made the Lease that is not good by Coke and Walmesley expresly and though that the Defendant confesse the Replication by Implication by pleading Yet this shall not ayd the Plaintiff for that it is insufficiently pleaded which note Hillary 8. Jacobi 1610. in the Common Bench. IN action upon the case upon an Assumpsit the Plaintiff counts that when he such a day at the speciall instance and request of the Defendant lent to the Defendant the same day ten pound And that the Defendant the same day in consideration thereof assumed and promised to the Plaintiff to pay the same summ of ten pound at an other day to come And it was moved in arrest of Judgement that the consideration was too generall and for that the action not maintainable and all the Justices but Foster seemed the consideration was good but Foster it seems was in some doubt of that but Judgement was entred for the Plaintiff according to the verdict And Coke cheife Justice said that such a like action was maintained against Kercher his Chaplain as Executor of his Father and it seems for good Law Legates Case ONe Legate was committed to Newgate Prison for Arrianisme for denying of the Trinity by the high Commissioners and it was moved on the behalfe of Legate to have a habeas Corpus and it was granted and it was said by Coke cheife Justice that the Statute of 5. H. 4. Chapter 10. Inhibits Justices of peace to commit any man to
for the matter it is not within the Statute and then for the persons also he intended that it is not within the Statute and this appears by the words of the Statute of 28. Edw. 1. Articuli super Chartas and to that 10. H. 6. 130. it is adjudged that Judgement in such case there given is void and Coram non Judice so 7 H. 6. 30. expresses the cause to be insomuch that none of the parties are of the houshold of the King 4 H. 6. 8. 19 Edw. 4. 8. 5. Edw. 4. 32 H. 6. Rot. 27. And he cyted also Michelburns Case to be adjudged upon a Writ of Error in the Kings Bench 38 Eliz. That they could not tender a Plea in Trospasse for Trover and Conversion if none of the parties were of the Kings house and further he said that when a Court hath Jurisdiction and errs in matter of proceedings or in Law there the Execution made by force of their Process shall be lawfull But where the Judgement is void by default of Jurisdiction as in this Case there it is otherwise as 10 H. 6. 13. Recovery of Land in the Spirituall Court is void so Formedon commenced Judgment given upon that before the Judges of Assises void So 36 H. 6. 32. Recovery of Land in Wales in this Court is void and 8 Edw. 4. 6. Recovery of Land in ancient demesne is avoidable by Writ of Deceipt But in the other cases before the Judgment and Recovery is absolutely void and Coram non Judice for default of Jurisdiction So in 9 H. 7. 12. b. Recovery of Land in Durham Chester or Lancaster here is void for the same cause And in this case also the said Statute makes that void by expresse words see the statute of Articuli super Chartas Chap. 3. And to the case of 14 H. 8. before cyted of Warrant awarded by Justice of Peace he agreed that insomuch that the Justice of Peace had Jurisdiction of causes of Felony and erred only in the forme and manner of his proceedings and so in all the other cases which were put of the other part And also hee agreed that a Writ of Error may be well maintained if such Judgement which is void as it was in Michelburns case for the party may admit the Judgment to be but voidable if he will And to the exceptions to the pleading that is that the authority is not prosecuted 1 Postea that is such a day which was before the Judgment and yet it seems good and that in the first the authority was very well prosecuted in the 2 Postea was sufficient and the other words that is such a day is but surplusage and so he concluded and prayed Judgment for the Plaintiff and it was adjourned Michaelmas 1611. 9. Jacobi In the Common Bench. Peto against Checy and Sherman and their Wives Triâ— 9. Jacobi Rot. 1151. IN Trespasse and Ejectione firme the Defendants pleaded that one of the Defendants made agreement with the Plaintiff for the said Trespasse and Ejectment with satisfaction and demands Judgment if action upon which the Plaintiff demurred in Law and it was argued by Nicholls Serjeant for the Plantiff that the agreement was no plea though it be said by Keble in the 11. H. 7. 13. That though it be a Plea in Ravishment of Ward quare Impedit and quare ejecit infra terminum insomuch that they are actions personall But Wood denyed that insomuch that Inheritance is to be recovered and in Ejestione firme tearm shall be recovered and for that it shall not be spoken and of this is Wood expresly in the 13. H. 7. 20. b. That in Ejectione firme agreement shall not be a plea insomuch that the tearm is to be recovered which is the thing in demand And there also it is agreed that in Waste brought against Lessee for yeares in the Tenet agreement is good plea and so Vavasor intended if it be in the Tenet but not if it be brought against Lessee for life And also he intended that by Recovery in Ejectione firme more shall be recovered then the tearm only for by that the reversion shall be also reduced and for that the Inheritance is drawn in question and it is said in 11. H. 7. 13. that it shall not be a plea in Assise insomuch that there the Free-hold is to be recovered and by the same reason hee intended that shall be no plea insomuch that more is to be recovered then in Assise for there the Tenant only shall recover the free-hold and his damages but here the Tearm and the Inheritance also are reduced and revested And this is the reason also which is given in 11. H. 7. 13. b. by Fisher That if a man make a Lease for years rendering Rent and after brings Debt for the Rent behind the Defendant cannot wage his Law notwithstanding that the action is personall But this is more high in his nature as it is there said and yet there nothing shall be recovered but only damages for which a man may have satisfaction Also he intended that it was not well pleaded that is that such agreement was had between the Plaintiff and one of the Defendants and betwixt those shall be intended those two only and also Ipsum and Alios by his commandâ—ment and doth not shew that this was made by the other two by his commandement and so he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant that the Plea is good and that the nature of the Action is only Trespasse by force and arms and differs from a Quare ejecit but Ejectione firme differs from predict infra terminum and lyes against the immediate Ejector but Quare ejecit lyeth against him which hath title as he in reversion 7 H. 4. 6. b. Ejectione firme was brought by Executors of Land let to their Testator for years upon outing of the Testator by the statute of 4 Edw. 3. Chap. 6. which gives action for the Executors of goods taken out of the possession of their Testator and it seems to him also that proces of Outlawry lyes in an Ejectione firme but in Quare ejecit infra terminum only summons So it is 11. H. 7. 13. There is a great difference between Waste and this for there the Process is Distress and other speciall Process But so is it not here but only the Process which is in other generall actions of Trespasse and so is the expresse opinion of Keble in 11. H. 7. 13. That in ravishment of Ward Quare Impedit and quare ejecit infra terminum that agreement is a good plea and yet all these trench upon the Realty and in ejectione firme if the tearm expire hanging the action this shall not abate the Writ but the Plaintiffe shall have Judgement for his damages otherwise in a Quare ejecit infra terminum And it was resolved 20 Eliz. That if an ejectione firme be brought at the common Law of Lands in
the Subjects Et Rex censetur habere omnes Artis in sermo pectoris and he hath here pursued the Course of the best Phisitians that is Removens promovens removens Improbos illos qui nullis bonae conscientiae fiducia profitabantur audaces promovens ad sanitatem And for that the Phisitian ought to be profound grave discreete grounded in learning and soundly Studied and from him commeth the medicine which is removens promovens And it is an old rule that a man ought to take care that he do not commit his Soul to a young Divine his Body to a young Phisitian and his Goods or other Estate to a young Lawyer for in Juveni Theologo est Conscientiae detrimentum in Juveni Legislatori bursi detrimentum et in Juveni Medico Cimitorij incrementum for in these cannot be the privity discretion and profound learning which is in the aged And he denied that the Colledge of Phisitians is to be compared to the University for it is subordinate to that Cantabrigia est Academiae nostrae nobilissima totius Regni occulus et sol ubi humanitas et doctrina simul fluant But he said when he names Cambridge he doth not exclude Oxford but placeth them in equall Rank But he would allwaies name Cambridge first for that was his Mother And he saith that there is not any time Pro non bene faciendo utendo et exequendo for this non suscipit Manus et Minus for so a man may greviously offend in one day and for that in such a case his punishment shall be by Fines amercements Imprisonments of their Bodies and other waies c. But if practise well though it be not an offence against the Letters Patents and the Statutes yet the punishment shal be but pecuniary and shall not be Imprisoned for if he offend the Body of a man it is reason that his Body shall be punished for Eodem modo quo quis delinquit eodem punietur but if a grave and learned Doctor or other come and practise well in London by the space of three weekes and then departs he is not punishable by the said Colledge though that they be without admition for peradventure such a one is better acquainted with the nature and disposition of my Body and for that more fit to cure any Malady in that then another which is admitted by the Colledge and he said that it was absurd to punish such a one for he may practise in such manner in dispite of the Colledge for all the Lords and Nobles of the Realme which have their private Phisitians which have acquaintance with their Bodies repaire to this City and to exclude those of using their advise were a hard and absurd exposition for the old verse is Corporis auxilium medico committe sodali And also he said that the said President and Colledge cannot commit any Phisitian which exerciseth the said faculty without admission for the space of a Month nor bring their Action before themselves nor levy that by any other way or meanes But ought to have their Action or exhibit an Information upon the Statute as it appears by the Book of Entries for they â—ught to pursue their power which is given to them by the Statute for otherwise the penalty being given the one Moytie to them and the other to the King they shall be Judges in Propriacausa and shall be Summoners Sheriffs Judges and parties also which is absurd for if the King grant to one by his Letters Patents under the great Seale that he may hold Plea although he be party and if the King doth not appoint another Judge then the Grantee which is party the Grant is void though that it be confirmed by Parliament as it appeares by 8. H. 6. 44. Ed. 3. The Abbot of Readings Case for it is said by Herle in 8. Ed. 3. 30. Tregores Case that if any Statutes are made against Law and Right and so are these which makes any man Judge in his own cause and so in 27. H. 6. Fitz. Annuity 41. that the Statute of Carlile will that the order of Cistertians and Augustines which have Covent and Common Seale that the Common Seale shall be in keeping of the Prior which is under the Abbot and foure others which are the most Sages of the house and that any Deed sealed with the Common Seale which is not so in keeping shal be void and the opinion of the Court that this is a void Statute for it is impertinent to be observed being the Seale in their keeping the Abbot cannot seale any thing with it and when that it is in the hands of the Abbot it is out of their keeping ipso facto And if the Statute shall be observed every common Seale shall be defeated by one simple surmise which cannot be tryed and for that the Statute was adjudged void and repâ—gnant And so the Statute of Glocester which gives Cessavit after Cesser by two yeares to be brought by the Lessor himselfe was a good and equitable Statute But the Statute of Westminster 2. chap. 3. which gives Cessavit to the Heire for Cesser in time of his Ancester and that that was Judged an unreasonable Statute in 33. Ed. 3. for that that the Heire cannot have the arrerages due in the time of his Father according to the Statute of Clocester and for that it shall be void And also the Physitians of the Colledge could not punish any by Fyne and also by Imprisonment for no man ought to be twice punished for one offence and the Statute of 1. Mariae doth not give any power to them to commit for any offence which was no offence within the first Statutes and for that he ought not to be committed by the said Statute of 1. Mariae But admitting that they may commit yet they have mistaken it for they demand the whole hundred shillings and one halfe of that belongs to the King And also they ought to committ him forthwith as well as Auditors which have Authority by Parliament to commit him which is found in arrerages But if he do not commit him forthwith they cannot commit him afterward as it appeares by 27. H. 6. 9. So two Justices of the peace may view a force and make a Record of that and commit the offenders to Prison but this ought to be in Flagranti Oriente And if he do not commit those immediately upon the view he cannot commit them afterwards and the Physitians have no Court but if they have yet they ought to make a Record of their commitment for so was every Court of Justice But they have not made any Record of that And Auditors and Justices of Peace ought to make Records as it appeares by the Book of Entries So that admitting that they may commit yet they ought to do it forthwith but in this case they cannot commit till the party shall be delivered by them for this is against Law and Justice and no
is appurtenant or appendant the Grantee shall have Common Pro Rata but if a commoner purchase parcell of the Land in which he hath Common appurtenant that this extincts all his Common And it was agreed that Common may be appendant to a Carve of Land as it appeares by the 6 Ed. 3. 42. and 3. Assise 2. as to a Mannor but this shall he intended to the Demesnes of the Mannor and so a Carve of Land consists of Land Meadow and Pasture as it appeares by Tirringhams case 4. Coke 37. b. And Common appendant shall not be by prescription for then the Plea shall be intended double for it is of common Right as it appeares by the Statute of Morton chap. 4. And the common is mutuall for the Lord hath Right of Common in the Lands of the Tenant and the Tenant in the Lands of the Lord And it was urged by Nicholls Serjeant that the Common shall be apportioned as if it were Rent and that the Lessee shall have Common for his Lease and then the Lessor hath no Common appurtenant or appendant to the two Virgats of Land and for that the Prescription was not good Coke cheife Justice if it had been pleaded that he had used to have Common for the said Beasts Levant and Couchant upon the said Land there had been no question but it should be apportioned for the Beastes are Levant and Couchant upon every part as one day upon one part and another day upon another part and for that extinguishment or suspention of part shall be of all as if a man makes a Leafe of two Acres of Land rendring Rent and after bargaines and sells the reversion of one Acre there shall be an apportionment of the Rent as well as if it had been granted and attornment And he agreed that if a man have Common appurtenant and purchase parcell of the Land in which he hath Common all the Common is extinct but in this case common appendant shall be apportioned for the benefit of the Plow for as it is appendant to Land Hyde and gain And in the principall case there was common appendant for it was pleaded to be belonging to two Virgats of Land and for commonable Beastes And he conceived also that the prescription being as appertaining to such Land that this shall be all one as if it had been said Levant and couchant for when they are appurtenant they shall be intended to Plow Manure Compester and Feed upon the Land And also he conceived that the right of Common remaines in the Lessor and for that he may prescribe for after the end of the Tearme shall be returned and in the intermin he may Bargain and sell and the Vendee shall have it and shall have common for his Portion And Walmesley Justice agreed to that and that during the Tearme the Lessor shall be excluded of his Common for his proportion Foster Justice agreed and that the possession of the Lessee is the possession of the Lessor but he conceived when the Lessor grants to the Lessee six acres of Land in such a feild where the Land lies and then the Beasts were taken in another feild And so they agreed for the matter in Law and also that the pleading was ill and so confesse and avoid the prescription But upon the traverse as it is pleaded the Jury shall not take benefit of it and Judgement was given accordingly Termino Pasche 7. Jacobi 1609 In the Common Bench. THOU art a Jury man and by thy false and subtill means hast been the Death and overthrow of a hundred men for which words Action upon the case for slander was brought and it seemed to Coke cheife Justice that it did well lye if it be averred that he was a Jury man and so of Judge and Justice for Sermo relatus ad personam intelligo debet de qualitate persone as Bracton saith and in the like Action brought by Butler it was not averred that he was a Justice of Peace and resolved that an Action upon the case doth not lye But Walmesley Justice conceived that an Action doth not lye for one Juror only doth not give the Verdict but he is joyned with his Companions and it is not to be intended that he could draw his Companions to give Verdict against the truth and false and subtill means are very generall Warburton Justice agreed with Coke and conceived that the Action well lies being averred that he was a Jury man as if one calls another Bankrupt Action well lies if it be alledged that the Plaintiff was a Tradesman and it is common speaking that one is a Leader of the Jurors and a man may presume that other Jurors will give Verdict and may take upon him the knowledge of the Act. Walmesley conceived that the Action did not lye for that the words are a hundred men which is impossible and for that no man will give any credit to it and for that it is no slander and for that Action doth not lye no more then if he had sayd that he had kild a thousand men But Coke Warburton Daniell and Foster agreed that the number is not materiall for by the Words his malice appears and for that they conceived that the Action doth well lye Pasch 7. Jacobi 1609. In the Common Bench. Denis against More ANthony Denis Plaintif in Replevin William More Defendant the case was this Two joynt Lessees for life were the Remainder or Reversion in Fee being in another person he in Reversion grants his Reversion Habendum the aforesaid Reversion after the death surrender or forfeiture of the Tenant for life it hapneth that the Lease determines for the life of the Grantee and Remains to another for life and resolved that this shall be a good grant of the Reversion to the first effect of Possession after the Deaths of the Tenants for life according to the 23 of Eliza. Dier 377. 27. And it shall not be intended to passe a future interest as if it were void of the other party and so was the opinion of all the Court see Bucklers case 2. Coke 55. a. and Tookers case 2. Coke 66. Upon a Fine the first Proclamation was made in Trinity Tearm 5. Jacobi And the second in Michaelmas Tearm 5. Jacobi And the third in Hillary Tearm 6. Jacobi where it should be in Hillary Tearm 5. Jacobi And the fourth and fifth in Easter Tearm 6. Jacobi And this was agreed to be a palpable Errrour for the fourth Proclamation was not entered at all and the fifth was entered in Hillary Tearm 6. Jacobi where it should have been in Hillary Tearm 5 Jacobi and it shall not be amended for that it was of another Tearm and the Court conceived that this was a forfeiture of the Office of the Chirographer for it was an abusing of it and the Statute of 4. H. 4. 23. and Westminster 2. Are that Judgement given in the Kings Court shall stand untill
extortion 151 Jeofailes stat 168 Judgment arrested 182 Joynt Tenants for years of a Mill and grants c. 212 Judgment in a Writ of errour 215 Intendment where 234 Judgment Sur breife abatest errour 235 Imprisonment unlawfull 20 Impropriation 24 Instruction for the Presidents of Wales 29 Judgment reversed for the Outlawry only and confirmed for the other 39 Joynture 52 53 Information sur stat 21. H. 8 chap. 13. For non-residency 54 Judgment voyd 127 Informer exhibits a Bill in the Star chamber 151 Imprisonment for a force when or not 266 Justices of Peace and Auditors ought to make Record where and when Ibid. Indemptitas nominas 270 Jurors from two countyes 272 Infant levies a Fine brings errour 278 279 K KIngs Grant voyd for defect in recitall 241 King is specially favored in the Law 249 Kings Patent how to be taken 250 L LIcense from the Ordinary where 1 License how many kinds 3 27 Legates Jurisdictions ibidem License to a Copyholder when pleadable by whom 40 Limitation and Condition their difference 68 Levant couchant what 101 Lease by a Dean 134 Livery voyd where 135 Libellous Letters 152 Law of England of what it consists 198 Lateran Councell concerning Tithes 24 License to appropriate 25 License to a Copy-holder 40 Lord of a Mannor inclose the Demesnes 168 Letter of Attorney cannot be made by a wife 248 London the custome for an Inn-holder 234 Lease to determine upon limitation 292 Letters Patents how expounded 323 License in a Forrest 323 M MArriage disagreed to at yeares of consenting c. 36 Misnosmer in an obligation what it effects 48 Marriage a gift of all goods personall 91 Merchant 4 sorts 99 Meale accounted dead victual within the stat 5 Ed. 6 chap. 14. 116 Mayme is fellony 220 Modus decimandi 33 Murther sur Thames where tryable 37 Maxime in law 43 Misnosmer of a corporation 243 Mainténance 271 Minister arrested 301 Marshall court its jurisdiction 125 126 127 N NOn-suit 41 Nisi prius record amended 41. Non-residencie the statute 21 H. 8. 13 expounded 54 Non-suit after verdict 219 Nisi prius by proviso for whom 276 Notice where requisite 278 O ORdinary cannot imprison 4 Ordinary may imprison a preist by 1. H. 7. 4. Ibid Obligation taken for a legacy incourt court Christian 11 Ordinary may transmit 28 Office granted by a Bishop 137 Occupancy where â—02 Outlary in fellony was reversed 229 Offences exorbitant what 19 20 Obligation to performe covenants 167 Officers gradâ—all of the Kings bench who 282 Obligation with condition against law or impossible 281 Outlary 313 Office exerciseable by deputy where 334 335 P PRohibitionupon the stat of 13 H. 8 chap. 9 Polygamy punishable where and how 7 Prohibitionjoynt and severallcounts 7 Prohibition surle stat de simony 7 for not settingforth of tythes 9 Prescription for tythes 31 33 34 Prohibition to the admiralty 34 to court Baron 34 Prison private and common 41 Prescription for inhabitants 178 Prohibition for common 47 Prescription none after consultation duly granted 36 Parson deprived for drunknesse 37 Proofe what 57 Priviledg out of higher court to inferiour 101 Payment directed how 107 108 Patent of a Judge 122 Papist that not actionable 166 Possibility resonable where 173 Prescription and custome do differ wherein 198 Prescription 210 211 Prohibition to court Christans 215 Prerogative del roy 219 Prescription for waife and stray 219 Paunagium quid 236 Prohibition good sans action pendecit 17 Priviledg determined 22 Processe from the admiralty 29 Prohibition not grantable after consultation 36 Possessio fratris 43 Plurality with dispensation 45 Pardon of one attaint pro false verdict 47 Prescription where good where not 64 Per que servitia 84 Prescription for beasts sans number 101 Physitians colledge the authority 256 Physitans examined by whom 257 Priviledg of attorney allowed before the Deputy Marshall where 267 Partition without naming the parts good where 275 Prohibition to the Court of request 297 Copyholder prescribeth Pro ligno combustibuli 330 Q QUare impedit 45 Quo warranto 217 Quare ejecit infra terminum 133 Quare clausum fregit where it lieth 322 Quare Vi Armis where it will and of what 331 332 334 R RIght to a spirituall Office is temporall 12 Residency where 13 Ravishment against feme covert 59 91 92 93 Replevin 84 52 149 Right the Writ 138 Remainder in a Chattell 173 Release where not good 190 Release of one Church warden shall not bind the other 216 Restitution to the Heir of an accessory where the principall reversed the outlawry 220 Reservation of Rent at Michaelmas ten or dayes after 220 Reservation not taken strictly 221 Right to a tearm not grantable 226 Revocation the power when suspended 228 Return of the sheriff where good 145 Revocation of uses 157 Remainder of a Chattell 173 Request where necessary 176 Release of Dower by Fine 175 Replevin 248 Re-entry after possession executed 253 Release 254 Return of writs granted to a corporation 270 Replevin 297 Release 300 S STatutes ecclesiasticall by whom to be expounded 2 3 Surrender an attornment where 51 Scire fac by baile 76 Scire fac against an Executor 83 Surrender by Cognisor c. 97 Statutes pro bono publ taken by equity 110 111 Summons in Dower 122 Scire facias for whom 145 Seisin of a Rent p. vicâ—â—nt 237 Submission awarded 48 Survivorship not aâ—ongst Merchants 99 Statute penall 112 Scire facias speciall non-tenure a goodplea 146 Seisin to have Assise what sufficient 241 Slaunder of an Attorney what 252 Slaunder 272 276 299 Sheriffs power what 281 Vnder sheriff how limited ibid Sheriff may limit the Authority of his Vnder Sheriff 282 Sheriff committed for taking undue Fees 283 Suit begâ—n hanging another 293 Statutes how to be understood 305 306 307 T TYthes what Lands are free of them P. 8 21 22 23 24 Taxes for Church-Reparations and other like dutyes who are chargeable and how 10 Tithes not grantable P. Parol unless by way of Retainer 11 Tithes where discharged by unity of possession 26 Transmission of causes where 27 Tenant in Dower disseised 41 Tayl its incidents 67 By Copyhold custome 77 Its Creation and nature 79 Testibus lies what comes after no part of the Deed 99 Town cannot be corporate without the assent of the Major part c 100 Trespass for a commoner good 149 By the Lord against the commoner 168 Trespasse for assault 182 Tales challenged 235 Tythes their antiquity 24 Tythes of what not payable 32 33 Trespasse for breaking of a close 65 Teste of a ven fac amended post verdict 102 Trespasse for imprisonment 124 125 Tenant pur view with warranty 191 Testatum where no writ issued 209 Tythes not paid for seven yeares of what 257 Tayl 271 Trade with Infidells without licence 296 U VEn fa. amended after verdict 102 Voucher P. attorney 167 Voucher sur bre abateable the danger 185 Verdict speciall 187 188 189 Verdict doth not cast