said George Francis and by vertue of the said Warrant the said George Francis and the said Defendant Sampson ut ejus serviens per ejus mandatum the aforesaid Beasts in execution for the Debt and Costs aforesaid took and seised and caused them to be appraised and they were appraised at 11 l being the true value of them and deteined them quousque praed ' W. Bealy the aforesaid sum of 11 l to the said George Francis to the use of the said Sheriff pro deliberation ' averiorum illorum habend ' solvisset prout eis bene licuit quae sunt idem resid ' transgress ' praed ' unde praed ' Willielmus Bealy se modo queritur absque hoc quod ipse idem Johannes Sampson est culpab ' de captione c. ad aliquod tempus ante praed ' secundum diem Augusti vel post praed ' Quindend ' Sancti Martini hoc parat ' est verificare And to this the Plaintiff demurred This Case was spoken to the last Term and then Pollexfen Chief Justice and Rokeby were of Opinion for the Plaintiff and Powell and Ventris for the Defendant and it was again argued at the Bar this Term and by the Opinion of the Chief Justice Powell and Rokeby Iudgment was given for the Plaintiff The Chief Justice and Rokeby held the Plea to be naught chiefly because the Defendant pleads that he detained the Chattel till the Plaintiff had paid so much Mony to the use of the Sheriff whereas it should have been to the use of the Plaintiff at whose suit the Execution was The Chief Justice said that he found no Authority in Law that warranted the delivering of the Goods back to the Plaintiff especially upon payment of part of the Mony vide 1 Cro. 404. Stringar versus Stanlack but here the taking of the Mony to the use of the Sheriff made him a Trespasser for it could not be done in pursuance of the Execution He also said that one Farr in the time of King Charles the Second by colour of a Writ of Execution came into the House and carried away the Goods and it was adjudged Felony He also said that if this manner of Pleading should be allowed admitting that the Bayliff had agreed to take the Mony to the Sheriffs proper use how should the Plaintiff be let in to a Replication in this manner of Pleading to put the matter in issue Rokeby said Parols font Plea and that it must be here taken that the Mony was paid to the proper use of the Sheriff and in pleading the matter is to be taken most strongly against him that pleads Another matter they went upon is that in the justification the Defendant saith he detained the Cattle till 11 l was paid to Francis whereas the Declaration chargeth him with detaining till 11 l was paid to the Defendant and so Francis answers nothing to the payment alledged to himself Note The Chief Justice cited the Case of Thompson and Clarke 1 Cro. 504. where 't is said that the Sheriff cannot deliver the Defendants Goods to the Plaintiff in satisfaction of the Debt neither ought they to be delivered to the Defendant against whom the Execution is but they ought to be sold and the apprisement is not material for the Goods upon a Fieri facias need not to be appraised as they must be upon Elegit 1 Cro. 584. in Palmers Case In the Case of Goodyers and Ince 2 Cro. 246. upon an Elegit it was held that the Sheriff could not sell a Term to the Plaintiff himself that took out the Elegit Powell was of Opinion that the Plea was good in that point of paying the Mony to the use of the Sheriff for he hath an interest or special property in the thing taken in Execution 1 Cro. 639. the Sheriff may bring trespass against one that takes Goods after they are seised in Execution Wilbraham and Snow 2 Saunders 47. resolved that in such Case the Sheriff may bring Trover But he held the Plea insufficient for the other exception because the Declaration is of a Detainer till the Mony was paid to Francis and the Defendant And in the Plea the Iustification is of the detaining till the Mony was paid to Francis He took another Exception also that the Defendant had not shewn that there was a retorn made of the Warrant to the Sheriff and cited Br ' Tit. Trespass 566. but that was not much insisted upon because the Warrant was not directed to the Defendant here but to Francis and another and the Defendant ought not to be punished for the omission of the Bayliffs in not retorning the Warrant Vpon a Mesn Proces the Bayliff who acts by a Warrant from the Sheriffs is not liable in Trespass if the Sheriff does not retorn the Writ Ventris was of Opinion for the Defendant as to the first matter the payment to the use of the Sheriff he thought ought to be taken upon the whole matter set forth in the Plea that it was paid to the particular and special use of the Sheriff viz. that he might have the Mony in Court as the Writ commands and the Warrant mentions and it was a strained construction to take it to be to the proper use of the Sheriff it would not have been proper to say paid to the Bayliff to the use of the Plaintiff because 't is not the Plaintiffs Mony till 't is paid to him in the Case of Benson and Flower 3 Cro. and Jones 115. it was resolved that if the Plaintiff became Bankrupt the Commissioners could not assign the Mony that had been levied at the Plaintiffs suit upon Execution or remaining in the Sheriffs Hands or in Court a Barr is good to a common intent 2. The pleading of the payment to Francis and not said to Francis and the Defendant tho' it does not precisely answer the Declaration yet he held it well enough because payment to Francis is a payment to both because it is set forth that they acted joyntly in pursuance of the Warrant and averring that the matters pleaded were idem residuum transgressionis was sufficient answer of the Allegation in the Declaration of payment to both He put this Case one brings Trespass against A. that he simul cum B. took his Cattle and detained them quosque he made a Fine with the said A. and B. for the delivery of them A. the Defendant pleads that a Rent was granted to B. with a clause of Distress and that the said B. and A. as his Servant and by his command took the Cattle by way of Distress and detained them till the Plaintiff paid the arrear to B. quae est eadem transgressio Would it not have been good Again If this payment must be taken to be to the proper use of the Sheriff and so not in pursuance to the Execution yet he held that the Plaintiff here could not maintain an Action of Trespass that in regard that he is particeps criminis
c. Quibus lectis auditis idem Querens dicit quod cognitio praed ' in forma praed ' fact ' materia in eadem content ' ac factum indentat ' praed ' in forma praed ' fact ' minus sufficien ' in lege existunt c. and the Defendant joyned in Demurrer It was argued for the Plaintiff that there is no sufficient Grant by this Indenture for it is said to be made between Nicholas of the one part and Elizabeth and Nicholas Cossen junior of the other part and then recited the Surrender of a former Grant after which came the words hath Given and Granted and by these Presents doth Give and Grant c. and no Grantor names but if it should be taken for a Grant from Nicholas Cossen 't is a Grant to Elizabeth an her Heirs and the habend ' cannot alter the Premisses in the limitation of the Estate in the Grant of a Rent and the Defendants in their Plea set forth that the said Elizabeth was seised of the said Rent for her Life ut de libero Tenemento so there is a material variance between the Indenture and the Plea The Court were of Opinion as to the first matter that it was a good Grant the Indenture being between Nicholas Cossen of the one part and Elizabeth of the other part and then after a recital saith hath Given and Granted to Elizabeth c. That must be taken that Nicholas Cossen hath Given and Granted and that the Conisans setting her forth to be seised for Life whereas there passed an Estate in Fee was a material variance The Cheif Justice Pollexfen seemed to incline that it was a Rent-charge for Life for the power of Distress was given to her only for Life and a Rent-seck in Fee and that it was as a Grant of two several Rents and then the Pleading was good But the other Justices held it was one entire Rent and that she had it with a Priviledge of Distress during her Life only but leave was given to amend the Conisans upon payment of Costs Dod versus Dawson SCire Facias upon a Recognizance of Bail in this Court upon condition That if Iudgement should be had against the Principal in an Action of Debt for 2000 l in this Court that he should pay the Debt and Damages recovered or render his Body in Execution to the Prison of the Fleet and sets forth that he recovered the said Debt of 2000 l and 12 l pro damnis Termino Pschae 4 Jacobi Secundi nuper Regis and that the Defendant did not pay the said Mony nor render himself in Execution c. The Defendants plead to this Scire fac ' that the Mony praetextu cognitionis praed ' in praed ' brevi de Scire fac ' mentionat ' de Terris Catallis c. praed ' Defendentis fieri ad usum praed ' Timothei Dod levari non debet quia dicunt quod Narratio super qua Judicium praed ' in praed ' Brevi de Scire fac ' mentionat ' obtent ' fuit versus ipsum Willielmum Dawson seu aliqua alia narratio in placito debiti non fuit exhibit ' in Curia hic in Termino Paschae Anno Regni dicti nuper Regis primo quo Termino recognitio praed ' facta fuit nec ad aliquod tempus infra duos terminos post praed ' Terminum Paschae proxime sequen ' unde pro defectu Narr ' per praefatum Timotheum Dod versus praefat ' Willielmum Dawson in eadem Cur ' ante finem praed ' duorum terminorum praed ' summa duarum mille librarum per cursum legis de Terris Catallis praed ' Defend ' vel eorum alicujus fieri levari non debent hoc parat ' sunt verificare unde pet ' Judicium c. To this the Plaintiff demurs and Iudgment was given for the Plaintiff for altho' by course of the Court if the Defendant lie in Prison two whole Terms without any Declaration put in he may get a Rule to be discharged yet if a Declaration be afterwards delivered and Iudgment thereupon 't is a good Iudgment and the Bail will be liable in such case Rogers versus Bradly IN a Replevin for taking of a Cow apud Liscard in Cornwall in a certain place there called the Underway The Defendant made Conusans as Bayliff to William Trewman and Thomas Coll and sets forth that Joseph Mark diu ante c. was seised in Fee of a Close called Underway parcel of the Mannor of Liscard of which the place where was and is parcel according to the Custom of the said Mannor and being so seised the 9th day of January Anno Domini 1663. demised to Sampson Rogers the Premisses for 99 years from the Date of the Indenture if A. B. c. should so long live tendring 10 l yearly Rent by virtue whereof the said Rogers entred and the said Joseph Mark being seised of the Revertion in Fee secundum consuetudinem Manerii praed ' upon the first day of February Anno 1663. supradict ' at a Court of the said Mannor then held did surrender in Manus Domini Caroli Secundi nuper Regis Angliae c. adtunc Domini Manerii praed ' secundum consuetudinem Manerii praedict ' the aforesaid Revertion and Rent to the use of the said Trewman and Coll and their Heirs to which said T. and C. at the Court praed ' Dominus Rex per quendam Thomam Moulton adtunc Seneschal ' suum Manerii praed ' did grant the said Revertion and Rent to hold to them and their Heirs according to the Custom of the said Mannor and by virtue thereof the said T. and C. became seised of the said Revertion and Rent in their Demesn as of Fee according to the Custom of the said Mannor and for five years Rent ending at Michaelmass c. bene cognoscunt captionem c. To this the Plaintiff replied and the matter in the Replication was frivolous and Demurrer thereupon But the Court gave Iudgment for the Plaintiff because the Conusans was insufficient for the Lands whereupon the Distress was taken being Freehold for so they must be taken to be tho' it is shewn that Mark was seised according to the Mannor because it is not said at the Will of the Lord could not be conveyed by Surrender in Court and an admittance without an Especial Custom to pass them in that Form and 't is not enough to say that he surrendred them secundum consuetudinem Manerii but the Custom should have been fully set forth viz. quod infra Manerium praed ' de tempore c. talis habebatur consuetudo c. but here the Custom is by Implication 1 Cro. 185 Vaughan 253. 2 Leon. 29. Lade versus Baker and Marsh Kanc ' ss THOMAS BAKER Nicholaus Marsh sum̄ fuer ' ad respondend ' Philippo Lade Gen ' de placito quare ceper ' averia
loco in quo c. pro eisdem quadraginta octo libr ' de reddit ' praed ' sic aretro existen ' juste c. ut in terris distriction ' praedict ' Nich. As in Lands charged with the Distress Marsh modo defend ' in forma praedict ' onerat ' obligat ' c. Demurrer Et praedictus Philippus Lade dic ' qd ' per aliqua per praed ' Thomam Baker Nicholaum Marsh superius in advocatione praed ' alleg ' iidem Thomas Baker Nicholaus Marsh captionem averiorum praedictorum in praedicto loco in quo c. justam cognoscere non debent quia dicit qd ' placitum praed ' per eosdem Thomam Baker Nicholaum Marsh modo forma praed ' superius placitat ' materiaque in eodem content ' minus sufficien ' in lege exist ' ad captionem averiorum praedictorum in praedicto loco in quo c. justam cognoscend ' ad quod idem Philippus Lade necesse non habet nec per Legem Terrae tenetur aliquo modo respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' placit ' in hac parte idem Philippus Lade pet ' judic ' dampna sua praed ' occatione captionis injuste detentionis averiorum praedictorum sibi adjudicari c. Joynder Et praedict Thomas Nicholaus ex quo ipsi sufficien ' materiam in Lege ad ipsum Nicholaum captionem averiorum praedictorum in praedicto loco in quo c. justam advocand ' Et ad ipsum Thomam ut Ballivum ipsius Nicholai eandem captionem in eodem loco justam cognoscend ' in advocare cognitione suis praedictis superius allegaver ' quam ipsi parat ' sunt verificare quam quidem materiam praedictus Philippus non dedic ' nec ad eam aliqualit ' respond ' pet ' judicium retorn ' averiorum praedictorum unacum dampnis c. sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedictis hic usque à die Sancti Michaelis in tres septimanas de audiend ' inde Judicio suo eo qd ' iidem Justic ' hic inde nondum c. Lade versus Baker Marsh REplevin for taking his Cattle at Barrham in Kent in a place there called the Fourteen Acrees The Defendant Baker made Conusans and Bailiff of Nicholas Marsh and saith that diu ante praed ' tempus quo c. one Robert Lade was seised in fee of the said 14 Acres and by his Deed indented dated 1 Octob. 24 Car. 1. between him of the one part and Nicholas Marsh Grandfather of the said Nicholas Marsh of the other part and produceth the said Deed in Court in consideration of 100 l paid to him by the said Nicholas Marsh the Grandfather did grant to the said Nicholas Marsh and his Heirs an annual Rent of 8 l to be issuing out of all that Capital Messuage with the appurtenances in Barham aforesaid and out of all Lands and Hereditaments in Barham aforesaid to the said Messuage belonging and then in the occupation of the said Robert Lade unde praedict ' locus in quo est praed ' tempore quo c. fuit parcell ' to be paid at our Lady Day and Michaelmas by equal portions with power to distrain if the said Rent or any part thereof were behind And the Defendant further saith that by virtue of the said Grant the said Nicholas Marsh the Grandfather became seised in Fee of the said Rent and being so seised by his Will in Writing dated the 28th of November 1654 devised the said Rent to Richard Marsh and his Heirs and died by virtue whereof the said Richard Marsh became seised in Fee of the said Rent and being so seised diu ante praedict ' Tempus quo c. viz. 10 Aug. 32 Car. 2. nuper Regis by his Deed indented between him of the one part and the said Nicholas Marsh the Defendant Son of the said Richard of the other part cujus Scripti alteram partem Sigillo praedict ' Richard Marsh omitting sigillat ' idem Thomas Baker the Defendant hic in Cur ' profert for and in consideration of Natural Love and affection which he bore to the said Nicholas now Defendant his Son and the sum of 5 l yearly by him the said Nicholas to the said Richard Marsh during the Life of the said Richard secured to be paid and for divers other good causes and considerations concessit assignavit transposuit to the said Defendant Nich. Marsh and his Heirs the said Annuity or yearly Rent of 8 l to the use of the said Nicholas Marsh the Defendant and his Heirs prout per idem Scriptum Indentat plenius apparet Virtute cujus quidem concessionis assignationis ulterius mentionat vigore Statuti Anno Regni Hen. 8. nuper Regis Angliae vicesimo septimo de usibus in possessionem transferend praedict Nich. Defend ' fuit adhuc est seisit de praedict annual reddit c. and for 48 l for six years arrear at Michaelmas next-before the taking of the Cattle to the said Nicholas the Defendant bene cognoscit ut Ballivus ipsius Nicholai c. To this the Defendant demurs First It is not sufficiently shewn that the Place where c. was charged with the Rent for the Rent is granted out of a Messuage with the appurtenances in Barham and out of all the Lands in Barham aforesaid to the said Massuage belonging and then in the occupation of the said Robert Lade unde praedict locus in quo est tempore quo c. fuit parcell and tho' it were parcel at the time of the Distress taking it might not be belonging to the said House or in the tenure of Lade at the time of the Rent granted which should have been shewn and of that Opinion were the Court. Secondly In the Deed by which the Defendant Nicholas Marsh claims it is said sigillo praedict Rich. Marsh omitting sigillat Sed non allocatur for it is said before that per Scriptum indentat factum inter c. he granted and that is enough Thirdly Here is a grant of the Rent from Richard Marsh pleaded without any Attornment or Enrollment To which it was answered by the Counsel for the Defendant that it appeareth that the Grant was made in Consideration of Natural Affection as well as Mony and so it shall enure as a Covenant to stand seised and for this the Case of Crossing and Scudamore was cited Pas 23 Car. 2. Rot. 871. where in Ejectment it was found by Special Verdict that Nicholas Hele was seised of Lands in Fee and that he made a Deed to Jane Hele enrolled within six Months by which he did for and in consideration of Natural Love Augmentation of her Portion
Ground tanquam ad Mesuag ' praed ' spectant ' pertinent ' de jure habere debet and that the Defendant stopped it up ad damnum c. The Defendant pleaded a frivolous Plea to which there was a Demurrer It was Objected on the Defendant's part that the Declaration was insufficient because the Plaintiff did not prescribe for the Way nor otherwise entitle himself to it than by a possession of the Messuage and that he had and ought to have a Way to the said Messuage belonging And a difference was taken between this and Dent and Oliver's Case 2 Cro. 43. where one alledged himself to be seised in Fee of a Mannor and had a Fair there and that the Defendant disturbed him to take Toll And in 2 Cro. Stackman and West there is a Prescription laid in the Dean and Chapter who had the Fee for the Way But it was Objected That a Corporation could not prescribe in a Que Estate but it was held well being but inducement to the Action And the Court here held the Declaration sufficient being but a possessory Action And a Case was said to be so Adjudged in this Court between the same parties Anno primo Jacobi secundi Vide the Case of Saint John and Moody upon the like Point Woodward al' versus Fox IN an Indebitat ' Assumpsit for 200 l for so much Money received by the Defendant for the use of the Plaintiffs The Defendant pleaded Non assumpsit and upon that a Special Verdict was found That in the Year 1681. before the Promise supposed c. John Hammond was and yet is Archdeacon of Huntington within the Diocess of Lincoln and that the Bishop of Lincoln is Patron of the Archdeaconry and that the Office of Register of the Court of Archdeaconry was time out of mind grantable by the Archdeacon for the Term of three Lives and that the said John Hammond in the said Year 1681. for 100 l sold and granted to Simon Michael and John Juce for their Lives the said Office of Register it being an Office concerning the administration of Justice and that by Colour thereof they enjoyed the Office till Juce died which was in 1687. and soon after in the same year the said Simon Michael died in the possession of the said Office and that Hammond was no ways Convicted of selling the said Office upon any prosecution at Law or otherwise And they further said That Thomas Bishop of Lincoln in the said Year 1687. after the Death of Juce and some time before the Death of Michael granted the said Office of Register to the Defendant Fox and set forth the Grant in haec verba which mentioned the said Registers Office to be void by the Statute of the 5 6 Ed. 6. against Sale of Offices and that thereupon it belonged to the said Bishop to grant the said Office by virtue of which the said Fox became seised of the said Office prout lex postulat And they find afterwards that in the same Year that Juce and Michael died Hammond being Archdeacon as aforesaid granted the said Office to the Plaintiffs Woodward Masters and Gilbert for their Lives and that they entred upon the said Office and became seised thereof ê“ut lex postulat And they find that the Bishops Grant was Afterwards Confirmed by the Dean and Chapter and they find that afterwards viz. the 22 of Octob. Anno regni Willielmi Mariae primo the said King and Queen their Letters Patents under the Great Seal reciting that the said Office appertained to Their Majesties to grant by the said Statute of Edward the 6th did grant the said Office of Register to the said Plaintiffs Woodward Masters and Gilbert for their Lives and that by virtue thereof they entred upon and exercised the said Office and received divers Fees and Profits thereunto belonging and that the Defendant having notice thereof did take divers Fees and Profits of the said Office amounting to 30 l claiming them to his own use c. and if upon the whole Matter c. Vpon this Special Verdict there were these Points moved The first Point was Whether this Office of Register could be granted for Lives This was not much insisted on by the Defendants Council it having been usually granted and so found by the Verdict 3 Cro. Young and Fowler 's Case a Grant in Reversion of the Registers Office was allowed being warranted by Usage and so in 3 Cro. Young and Stoel But unless there have been such Vsage 't is not grantable in Reversion Vide 3 Cro. Walker and Sir John Lamb. The second Point was Whether the Grant of this Office in Consideration of Money is void by the Statute of the 5th and 6th of Edward the 6th against Sale of Offices That Point was also waved it being Resolved in Dr. Trevor's Case 12 Co. 78. 2 Cro. 269. forasmuch as it concerned Administration of Justice The third Point was That the Statute of 5 Ed. 6. Enacting That the person who takes any Money for any Office shall lose and forfeit all his Right to any such Office c. Whether the King or the Bishop shall take advantage of this Forfeiture in regard the Statute doth not express who shall dispose of the Office in such case Co. Lit. 159. a. And it was said on the part of the Plaintiff That when a Statute gives a Forfeiture and not said to whom the King shall have it 11 Co. 60. a. unless there be a particular party grieved as upon the Statute of 2 Ed. 6. of Tythes and yet it was for some time before it was setled that the Parson should have the treble Value in that Case And this agrees with the Reason of the Common Law things that are nullius in bonis the King shall have them as extra Parochial Tythes 11 H. 4. 17. Vid. 5. Co. in Sir Henry Constable's Case The Soil of Navigable Rivers and derelict Lands was with this difference If the Sea leaves the Land gradatim and for but a little quantity the Owner of the Land shall have it but if in a great quantity at a time it goes to the King Davis Rep. 5. 6. Vid. Siderfin 86. Dyer 126. 'T is true at the Common Law where a person hath an Interest in that which is Forfeited he shall have the benefit of it as if a Park-keeper forfeit it shall go to the Owner of the Park And in Sir John Breon's Case Bridgm. 27. where the Earl of Lancaster gave License to make a Park in his Forest and the party forfeited his Office the Earl had the advantage of it In those cases the thing is forfeited to him from whom it was granted as a Copyholder forfeits to his Lord and Tenant for Life to him in Reversion but here the Bishop hath nothing to do with the Office of Register he cannot dispose of it in the time of Vacancy of the Archdeaconry The Verdict finds that his Office is to Register the Acts in the
sua occon ' non performacon ' promissionem assumpconem ill ' sibi adjudicari c. The Defendant joyns in Demurrer Et praedict ' Johannes Carter ex quo ipse sufficien ' materiam in lege ad praefat ' Johan ' Every ab accone sua praedict ' versus eum praecludend ' superius allegavit quam ipse parat ' est verificare Ac quam quidem materiam praedict ' Johannes Every non dedic ' nec ad eam aliqualit ' respond ' sed verificacon ' ill ' admittere omnino recusat ut prius pet ' Judicium Et quod praedict ' Johannes Every ab accone sua praedict ' inde versus eum habend ' praecludatur c. Et quia Justic ' hic se advisare volunt de super praemiss inde partes praedict ' posuer ' se in Judicium Cur ' priusquam Judicium inde reddant dies dat' est partibus praedict ' hicusque à die Sancti Michaelis in tres Septimanas de audiendo inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Et tam quoad triand ' exitum praed ' inter partes praedict ' superius junct ' per patriam triand ' quam ad inquirend ' quae dampna praedict ' Johan ' Every sustinuit occone praemiss superius menconat unde partes praed ' posuer ' se in Judicium Cur ' si contingat Judic ' inde pro praed ' Johan ' Every versus praefat ' Johannem Carter inde reddi Praecept ' est Vic' quod Venire fac ' hic à die Sanctae Trinitatis in tres Septimanas duodecim c. per quos c. Et qui nec c. Ad recogn ' c. quia tam c. Every versus Carter IN an indebitat ' Assumpsit the Plaintiff declared upon several Promises The Defendant pleaded the Statute of Limitations The Plaintiff replied That before the six years were elapsed he prosecuted an Original against the Defendant Returnable coram tunc Justiciariis Jacobi secundi nuper Dom. Regis apud Westm ad respondent ' eidem Johanni Every eo intentione quod praed Johannes Carter capietur Et idem Johannes Every super comparentiam praed ' Johannis Carter in eadem Cur ' ad sectam ipsius Johannis pro recuperatione damnor ' suor ' occasione non performationis promiss illor ' superius mentionat ' narraret quodque praed ' Johannes Carter infra sex annos proxime ante diem impetrationis ejusdem brevis Original ' in hac parte Assumpsit super se modo forma prout c. Et hoc petit quod inquitatur per patriam Et praed ' Johannes Carter petit auditum praed ' brevis Original ei legitur in haec Verba Jacobus secundus c. Vicecom ' Staff ' salutem Si Johanes Every Ar ' fec ' te securum de clamore suo prosequend ' tunc pon ' per vadios salvos plegios Johannem Carter c. quod sit coram Justiciariis nostris apud Westm ' c. ostens ' quare vi et armis clausum ipsius Johannis Every apud Tutbury fregit alia emormia ei intulit ad grave damnum c. Quo lecto audito idem Johannes Carter dicit quod praed ' Johannes Every ad monstrand ' idem breve Original ' superius replicando mentionat ' ad Warr ' narrationem suam praed ' modo versus eundem Johannem Carter fact ' admitti feu recipi non debet quia dicit quod breve Original ' unde praed ' Johannes superius modo narravit est de placito quare cum praed ' Johannes Carter indebitatus fuisset eidem Johanni Every c. ad quod quidem breve Original ' ipso eodem Johanne Carter in Cur ' his comparente praed ' Johannes Every superinde versus eund ' Johannem Carter de placito in eodem brevi Original ' ult ' specificat ' narravit non super breve Original ' praed ' per praed ' Johannem Every superius replicando mentionat ' ad Warrantizand ' Narr ' praed ' hoc parat ' est verificare unde petit Judic ' c. To this the Plaintiff Demurred for it was said that it was according to the course which of late time had obtained in this Court to declare in any Action upon a Clausum fregit as they do upon a Latitat in the Kings Bench. The Court agreed it was the practite now settled in the Court to take out such Original in a Clausum fregit and to declare super Assumpsit or the like but whether this were sufficiently set forth in the Plaintiffs Replication for he mentions nothing of the course of the Court but that he prosecuted such a Writ ea intentione to declare And the Court being informed that there were a great many Presidents in this manner the Court appointed them to be looked into Et Adjornatur Lade versus Barker IN Replevin the Plaintiff declared of a taking at a place called the 14 Acres at Barham in Kent The Defendant avowed for that Robert Lade being seised in Fee of the said 14 Acres by Indenture between him and Nicholas Marsh in Consideration of One hundred pounds paid unto him by the said Nicholas granted a Rent of 8 l per Annum to the said Nicholas and his Heirs out of the Premisses with power to distrain and the said Nicholas being seised in Fee of the said Rent by his Will in Writing devised the said Rent to Richard Marsh Son of the said Nicholas and his Heirs and died seised as aforesaid Anno 1675. And the said Richard Marsh being seised in Fee of the said Rent by Vertue of the said Devise by Indenture dated the 10 of Aug. 32. Car. 2. nuper Regis between him the said Richard of the one part and Nicholas Marsh Son of the said Richard of the other part which Indenture the Defendant produced in Court in Consideration of a natural Love to the said Nicholas his Son and 5 l in Money to be paid Annually to the said Richard during his Life he did give and grant to the said Nicholass Marsh his Heirs and Assigns the said Rent of 8 l per Annum to the use of the said Nicholas Marsh his Heirs and Assigns And then the Defendant saith further in this manner Quae quidem concessio ult ' mentionat ' nullo attornamento vel alia Executione superinde fact ' existen ' praeter solam sigillationem deliberationem inde operavit per viam conventionis praed ' Richardi Marsh stare seisit ' ad usus in eadem concessione mentionat ' per quod vigore Statuti fact ' c. de usibus in Possessionem transferen ' praed ' Nicholaus Marsh fuit adhuc est seisit ' de praed ' annuitate octo librarum in Dominico suo ut de feodo and for 4 l Arrear of the said Rent as Bayliff to the said Nicholas Marsh he makes Conisans
Demurrer to the Replication Joynder in Demurrer 241 7. Debt upon a By-Law made by a Corporation by Prescription 243 The Declaration sets forth That the Town of G. is Antiqua Villa a Corporation time out of mind Power to implead and be impleaded A Custom to make By-Laws for good Government of the Corporation and to impose Penalties Custom to elect a Bayliff annually 243 The By Law sets forth Forfeiture for the Breach The Defendant elected Bayliff for the year then next following who refused to execute the Office per quod Actio accrevit The Defendant pleads the Act of 13 Car. 2. 244 The Act set forth 245 And alledges that he is and at the time aforesaid was a Protestant Dissenter and had not received the Sacrament according to the Rites of the Church of England with a year before his Election and that the said Election by virtue of the said Act was void The Plaintiff demurs The Defendant joyns 246 8. Debt for Rent upon two several Demises by Lease Parol 249 The first Demise Exception Habendum Reddendum Entry Rent arrear Actio accrevit 250 The second Demise Exception Habendum Reddendum Rent arrear Actio accrevit 251 The Defendant pleads That the Plaintiff Nihil habuit in tenementis tempore dimissionis it should have been temporibus demissionis ibid. The Plaintiff replies That before the several Demises one J. S. demised to him for 41 years the said J. S. having then full Power Right and Title to make such Demise by virtue of which he entred and was possest and demised to the Defendant 252 The Defendan demurs The Plaintiff joyns in demurrer 253 Distress and Avowry Vide Replevin E Error 1. ERror in the Exchequer Chamber The Style of the Court 286 The Writ of Error 287 The Return of the Writ The Memorandum and Declaration in a special Action of the Case for not grinding at an Ancient Mill. Seisin of the Mannor and Mill. The Plaintiff Farmer of the Mill habuit habere debuit the Toll 288 The Defendant Occupier of an Ancient Messuage which ought to grind at his Mill. That the Defendant erected a Hand-Mill and ground therewith ratione cujus the Plaintiff lost his Toll The Defendant imparles and pleads Not guilty 289 Postea Tales Verdict for the Plaintiff The Judgment The Placita in the Exchequer Chamber 190 The General Errors assigned A Scire facias ad audiendum Errores prayed and awarded The Defendant in the Writ of Error appears and pleads in nullo est Erratum 291 2. The Placita in the Exchequer Chamber The Writ of Error 296 The Return of the Writ The Placita 297 The Memorandum and Declaration upon an Inland Bill of Exchange The Custom set forth That any Merchant or other person vel Ordini suo super visum acceptavit sic per Indorsamentum appunctuaret pro valore recept ' c. Upon Refusal to pay the Merchant or other person to become chargable 298 Avers That the Defendant being a Merchant at N. drew a Bill upon one J. S. in London payable to one P. or Order for Value received The Bill presented to J. S. and accepted by him P. orders payment to the Plaintiff J. S. had Notice and the Money demanded of him but refused payment of which the Defendant had Notice 299 And became chargable and thereupon promised payment but tho' after requested non solvit 300 The Defendant Protestando that there is no such Custom for Plea says That one C. an Excise-man paid the Defendant the Money in question being the Kings Money to the intent that it should be paid to the King and the Defendant at C's request drew the Bill That C. was then indebted to the King prout per Record ' Scaccarij 301 That an Extent issued out thereupon ad inquirendum The Writ delivered to the Sheriffs of London An Inquisition taken by them 302 The Money and Bill of Exchange seised and returned into the Exchequer The King became Entituled An Extent issued out to the Sheriff of N. for the levying the Money and the Money paid thereupon Averment of una eadem persona 304 Et una eadem Billa Et una eadem Summa The Plaintiff demurs to the Plea especially Causes of demurrer The Defendant joyns in demurrer 304 Eleven Continuances 304 305 306 The Loquela and Proceedings revived by Act of Parliament 1 W. M. Judgment for the Plaintiff upon the demurrer A Writ of Enquiry awarded 306 The Inquisition return'd Damages found Judgment for the Plaintiff 307 Mill and Toll Vid. Error 1. Outlawry pleaded Vid. Action on the Case 8. Prerogative Process Vid. Action on the Case 3. Error 2. Trover 2. Quantum meruit Vid. Action on the Case 8. R Rent Vid. Debt 3. 8. Replevin 1. THe Plaintiff Declares for taking and detaining 8 Cows c. The Defendant acknowledges the taking as Bayliff to the Dean and Chapter of Canterbury 131 Sets forth that they are Lords of the Mannor of M. That J. S. was seized of the Locus in quo parcel of the said Mannor and held it of the Dean and Chapter by Fealty Rent and Suit of Court Sets forth a Custom for the Lord to have a year and an halfs Rent upon every Alienation and power to distrain for it Shews the Alienation and the Purchasers Entry and that there was so much due for a Fine by Custom and because the same was unpaid the Defendant distrained infra feodum c. 132 133 The Plaintiff demurs to the Conizance The Defendant joyns in demurrer 134 2. Against two Defendants One of which avows the other acknowledges the taking as Baily to the former 145 They set forth that long before the taking R.L. and L.L. were seized in Fee of the Locus in quo and by Deed granted an Annuity to the Ancestor of the Avowant and his Heirs issuing out of certain Lands of which the Locus in quo was parcel with power of Distress Conditionally to be void upon payment of 100 l on a certain day then to come which was not paid c. 146 147 And for six years Rent Arrear the Distress was made which the one Defendant bene advocat and the other bene cognoscit as in the Lands charged with the Distress The Plaintiff demurs to the Avowry and Conizance The Defendants joyn 148 3. The Plaintiff declares for taking his Colt c. 210 The Defendant avows for Damage fesant and sets forth that E. M. being seized in Fee demised the Locus in quo to the Avowant to hold at Will That he entred and was possest and took the Cold Damage fesant prays Judgment and a Return and Costs and Damages according to the Statute The Plaintiff pleads in Bar to the Avowry That E. M. demised the Locus in quo to him before the pretended Demise to the Defendant to hold for 6 years That he entred and was possest and that the Defendant took his Colt there absque hoc that E. M. demised to
for his and their parts and behalfs do in all things well and truly stand to obey abide perform fulfil and keep the Award Order Arbitrament Vmpirage Final End and determination of such Vmpire as the said Francis Barlow and Robert Soresby shall nominate between the said Parties of and concerning the Premisses so as the said Vmpire do make his Award or Vmpirage of and concerning the Premisses by Writing or word of Mouth on or before the sixteenth day of April aforesaid then this Obligation to be void or else to remain in full force strength and virtue Quibus lectis audit ' idem Johanne Eyre dic ' qd ' praedict ' Burrowes Trippett action ' suam praedict ' inde versus eum virtute scripti obligatorii praed ' hic in Cur ' ê“lat ' habere non debet quia dic ' qd ' praed ' Franc ' Barlow Rob ' Defendant pleads that the Arbitrators made no Award Soresby in conditione praed ' suê‘ius mencÌ„onat ' post confectionem Script ' Obligat ' praed ' hic in Cur ' ê“lat ' infra tempus praed ' in condicÌ„one praed ' in ea parte limitat ' nullum fecer ' Arbitrium Ordinem Arbitramentum final ' finem vel determination ' in Scriptis vel per verbum oris de super praemissis in Conditione praedict ' superius mentionat ' in t ' praefat ' Burrowes Trippet praedict ' Johannem Eyre Et praedict ' Johannes Eyre ulerius dic ' quod praedict ' Franciscus Barlowe Robertus Soresby post confection ' Scripti obligatorii praed ' hic Cur ' prolat ' infra tempus Conditione praedict ' in ea parte limitat ' scilicet decimo die Aprilis anno tertio supradicto apud London praedict ' in paroch ' Warda praedict ' nominaver ' quendam Franc ' Jessopp Ar ' But they named an Umpire who made no Award in Writing or by word of Mouth fore Umpirator ' inter praedict ' Burrowes Trippet praefat ' Johannem Eyre de super praemissis praedict ' quodque praedict ' Franc ' Jessopp sic ut praefertur Umpirator nominat ' infra tempus ei Conditione praedict ' in ea parte limitat ' nullum fec ' Arbitrium sive Umpiragium aut determination ' de concernen ' praemiss praed ' The Plaintiff Replies and says That true it is that the Arbitrators nor A. B. by them first chosen Umpire made no Award but they say that afterwards the Arbitrators chose one J. N. who made an Award per Scriptum vel verbum oris Et hoc parat ' est verificare Unde pet ' Judicium si praedict ' Burrowes Trippet actionem suam praedict ' inde versus eum virtute scripti Obligatorii praedict ' habere debeat c. Et praedict ' Burrowes dic ' quod ipse per aliqua praeallegat ' ab actione sua praed ' versus pÌ„fat Johannem habend ' praecludi non debet quia dic ' quod bene verum est quod praedicti Franciscus Robertus in Conditione praedict ' superius nominat ' post confeccÌ„onem scripti Obligatorii praed ' infra tempus praedict ' in Conditione praedict ' in ea parte limitat ' nullum fecer ' arbitrium Ordinem arbitramentum final ' finem vel determinationem in scriptis per verbum oris de super praemissis in Conditionc praedicta superius mentionat ' in t ' praefat ' Burrowes praedict ' Johannem Eyre ac qd ' praed ' Francisc ' Barlowe Robertus Soresby ante decimum sextum diem Aprilis in Conditione praedict ' mentionat ' scilicet die loco in placito praed ' mentionat ' nominaver ' praedict ' Franc ' Jessopp Ar ' fore Umpiratorem inter praed ' Burrowes praefat ' Johannem sed praed ' Burrowes ulterius dic ' quod praedict ' Franc ' Jessopp adtunc ibidem fore Umpirator ' in t ' eundmÌ„ Burrowes praefat ' Johannem de super praemiss penitus recusavit Et superinde praedict ' Francisc ' Barlowe Robert ' postea adtunc ibidem sciliêt praedicto decimo die Aprilis Anno tertio supradicto apud London ' praed ' in paroch ' Warda praed ' nominaver ' quendam Cornel ' Clarke Armig ' fore Umpirator ' in t ' praedict ' Burrowes praefat ' Johannem Eyre de super praemiss praed ' Et idem Burrowes ulterius dic ' quod praed ' Cornelius postea ante praed ' decim ' sextum diem Aprilis in Conditione praed ' mentionat ' scilicet quartodecimo die Aprilis anno tertio supradicto apud London ' praed ' in paroch ' Warda preadict ' suscepto super se onere Umpiragii praed ' ore tenus Anglicè by word of Mouth arbitravit ordinavit quod praed ' Johannes solveret praedict ' Burrowes septuagint ' libras super decimum nonum diem Maii tunc prox ' sequen ' apud dom ' Johannis Ellison in Sheffeild in Com' Eborum in t ' duodecimam tertiam horas post meridiem ejusdem diei Et quod post talem solutionem super eundem diem apud eundem locum praed ' Burrowes Johannes Eyre un ' eorum alteri invicem sigillarent general ' Relaxationes praed ' tamen Johannes Eyre licet sepius requis praed ' septuagint ' libras eidem Burrowes non solvit juxta formam effectum Umpiragii praed ' Et hoc parat ' est verificare unde pet ' Judicium debitum dampna sua sibi adjudicari c. The Defendants special Demurrer Et praed ' Johannes dic ' quod praedict ' Placitum praed ' Burrowes superius replicando placitat ' ac materia in eodem content ' minus sufficien ' in lege existunt ad praedict ' Burrowes actionem suam praedict ' versus eundem Johannem habend ' manutenend ' quodque ipse ad placitum ill ' modo forma praed placitat necesso non habet nec per legem terrae tenetur respondere hoc parat ' est verificare unde pro defectu sufficien ' Replication ' praedict ' Burrowes in hac parte idem Johannes pet ' Judicium Et quod praed ' Burrowes ab actione sua praed ' versus eum habend ' praecludatur Causes of Demurrer c. Et pro causis morationis in lege ipsius Johannis in hac parte idem Johannes juxta formam Statuti in hujusmodi Casu nuper edit ' provis ' ostend ' Cur ' hic demonstrat ' has causas subsequen ' videlicet quod non constat per Replication ' ill ' quod idem Johannes habuit notitiam quod arbitrator ' praed ' nominaver ' praed ' Cornelium Clarke fore Umpirator ' inter partes praed ' vel quod praedictus Cornelius habuit aliquam authorital ad faciend ' aliquod Umpirag ' vel fore Umpirator ' inter easdem partes de
necesse non habet nec per legem terrae tenetur respondere Et hoc parat ' est verificare unde pro defectu sufficien ' placiti in hac parte idem Thomas Dowse pet ' judicum dampna sua occatione fraction ' convention ' praed ' in hac parte sibi adjudicari c. Et praed ' Johannes Cale dic ' qd ' placitum praed ' per ipsum Johannem modo forma praed ' placitat ' materiaque in eadem content ' A Joynder in Demurrer bon ' sufficien ' in lege existit ' ad Cur ' dict' Domini Dominae Regis Reginae nunc hic a cognitione placiti praedict ' habend ' praecludend ' quod quidem placitum materiaque in eadem content ' idem Johannes parat ' est verificare probare prout praed ' Cur ' c. Et quia praed ' Thomas Dowse ad placitum illud non respond ' nec ill ' hucusque aliqualit ' dedic ' idem Johannes Cale pet ' Judicium si Cur ' dictorum Dom ' Dominae Regis Reginae nunc hic placitum illud ulterius cognoscere velit Hen. Trinder Et quia Justic ' hic se advisare volunt de super praemissis unde partes praed ' superius posuer ' se in Judicium Cur ' priusquam Judicium inde reddant dies dat' est partibus praed ' hicusque in Octabis Sancti Hilarii de audiendo inde judicio suo eo qd ' iidem Justic ' hic inde nondum c. Et quoad triand ' separal ' exit ' praed ' inter partes praed ' per patriam triand superius junct Prec est Vic. qd venire fac hic ad praefat Terminum duodecim c. per quos c. Et qui nec c. ad recogn c. Quia tam c. Dowse versus Cale IN an Action of Covenant brought by Thomas Dowse as Assignee of Thomas Dowse his Father Assignee of Arthur Stanhope Edward Rosseter John Wolstenholm and Thomas Bristow Assgnees of John late Earl of Clare against John Cale Executor of Richard Cale The Plaintiff set forth a Lease by Indenture made by the said Earl of Clare the 9th of December 1647. to the said Richard Cale of three Messuages in the Parish of St. Clement Danes in Middlesex to hold from Christmas Day then next following for 41 years rendring 20 l yearly Rent and further sets forth that the said Richard Cale by the said Indenture Covenanted with the said Earl his Heirs and Assigns to pull-down the said three Houses and would in the same place build three as good and substantial Houses in all respects as the said Richard Cale had for some short time before built for himself in Fleetstreet Ac eciam That he would during the said term well and sufficiently repair all the Houses so agreed to be built ac eciam omnia singula Canal ' Angelicè Sewers Sentinas Anglicê Sinks Elicia Anglicè Drains paviamenta fact ' vel fiend ' in pro cum omnibus requisitis necessar ' reparationibus ac dicta dimissa praemissa ac domus edificia superinde fore erect ' edificat ' eorum quodlibet bene sufficienter reparat ' supportat ' manutent ' in fine vel citiori determinatione dicti termini pacifice quiete relinqueret sursum redderet dicto Com' Haered ' Assign ' suis prout per Indentur ' praed ' c. By virtue of which said Demise the said Richard Cale entred and was possessed and the said Earl being seised of the Reversion by Lease and Release dated the 6th and 7th of August 1662. conveyed the said Reversion to the said Arthur Stanhop Edward Rossiter John Wolstenholm and Thomas Bristow and their Heirs to the use of the said John Earl of Clare during his Life and after his Decease to the use of the said Stanhop Rossiter Wolstenholm and Bristow for one thousand years next after the date of the said Indenture and that after the said Earl of Clare died and the said Stanhop Rossiter Wolstenholm and Bristow became possessed of the Reversion of the Premisses for the said term of 1000 years and upon the 7th of June 1668. by an Indenture between Gilbert Earl of Clare and the said Stanhop Rossiter Wolstenholm and Bristow of the one part and Thomas Dowse Father of the Defendant of the other part they granted to the said Thomas Dowse the Reversion of the said Premisses for and during the residue of the term of 1000 years to which the said Richard Cale being then possessed of the term demised to him as aforesaid of the Premisses did attorn and the said Richard Cale being so possessed in the year 1672. died having made his last Will and the Defendant Executor thereof who after the decease of the said Richard entered into the said demised Premisses and became possessed and the said Thomas Dowse Father to the Plaintiff died possessed of the Reversion aforesaid in the year of our Lord 1686. having made his Will and thereby devised the said Reversion to the Plaintiff for his life and after his decease to Thomas Dowse Son of the Plaintiff and to the Heirs of his Body and made the Plaintiff Executor of his said Will who caused the same to be proved and did claim the Reversion of the said Premisses ratione legationis praed ' and thereupon became possessed thereof for the residue of the said term of 1000. years then to come and unexpired And the said Richard Cale being possessed by vertue of the Demise aforesaid altho' he the said Thomas Dowse performed all the Covenants to be performed as aforesaid on the part of the said John late Earl of Clare his Heirs and Assigns the said Defendant did not perform the Covenants which were to be performed on the part of the said Richard Cale his Executors and Administrators and in facto dicit the said John Cale being possessed of the Premisses after the decease of the said Thomas Dowse Father of the Plaintiff before the end of the said term of one and forty years viz. the 13th of September 1684. did permit one House of the value of 200 l erected upon the Premisses by the said Richard Cale in his life time to fall down and to be wholly ruinated and the said John Cale at the end of the said term which ended at Christmas Anno Dom. 1688. left the said House so prostrated and ruined contra formam conventionis praed ' And assigns another Breach for that he permitted the Pavement of the Yard to be broken and in decay and at the end of the term left it so in decay for want of repair and that he suffered the Tiles and one hundred yards of Walling of four Houses upon the Premisses erected by the said Richard Cale in his life-time during the term to be broken and in decay for want of Repairs and so the said John Cale left them
the putting them to Sue severally as they must do at Law But here there is but part of them that Sue and then they appear to be Officers in the Ship that Sue and so not to have this Priviledge of the Common Seamen to Sue for it was alledged that this practice had been obtained but of late and in favour to them and here it appears that the Contract for the Wages was joynt with the Owners and they have sued but two of them and so they shall be charged with the whole But the Court denied the Prohibition for they have been ever alowed to proceed for Marriners Wages and tho' the Plaintiffs have an employment in the Ship as Purfer Boatswain or the like they are Marriners as well as others and may sue in the Admiral Court for their Wages and they having Iurisdiction shall proceed in their own way tho' different from our Law as to the joyning of all the Plaintiffs or Defendants and if the Proceeding be not according to their Law the Remedy lies there Note It was said by one of the Admiralty that tho' the Suit be against some of the Owners the course there is not to charge them with the whole but according to their proportionable parts Adams versus Cross IN a Replevin against Cross and two others for taking of divers Goods at Ware in quodam loco vocat ' a Messuage there The Defendants made Conusance as Bayliffs of Jane Cross and they say that before the Caption she was seised in her Demesn as a Fee at the Will of the Lord of the Mannor according to the Custom of the Mannor of and in the aforesaid Messuage which said Messuage is and time out of mind hath been parcel of the said Mannor and demised and demisable by Copy of Court Roll c. and being so seised 24 June 1687. she demised the said Messuage to the said Adams from thenceforth at Will reserving for so long time as the said Adams should hold it the yearly Rent of 8 l by equal Quarterly payments By virtue of which Demise the said Adams entred and was and yet is possessed and for 14 l being a Year and three Quarters Rent ending at the Feast of the Nativity of St. John Baptist last past they as Bayliffs to the said Jane distrained the said Goods being in the House c. To this Avowry the Plaintiff pleaded an insufficient and frivolous Bar and now took Exceptions to the Avowry for that the said Jane Cross is therein set forth to have been seised in Fee of the said Messuage at the Will of the Lord according to the Custom of the Mannor and sheweth no admission from the Lord whereas a Copyholder cannot plead his Estate without setting forth an Admission or Grant from the Lord 4 Co. 22. b. But the Court resolved in this Case there need not be shewn any Admittance for the Title did not come in question If one pleads a particular Estate for life or years generally the commencement of it is to be shewn but if a Lessee for years Let for a lesser Term reserving a Rent in an Action of Debt for the Rent he may set forth that at the time of the Lease he was possessed of the Land ê“ termino diversorum annorum adtunc adhuc ventur ' and being so possessed demised to the Defendant c. without shewing the beginning of his Term and how derived for 't is but an inducement to the Action And Judgment was given for the Avowant Clarke versus Tucket IN an Action of Trespass for entring of his House and taking of four Pewter Dishes of the Plaintiffs The Defendant pleaded the Letters Patents of Edward the 4th whereby the Company of Taylors in the City of Exeter were Incorporated and by the said Letters Patents they were to keep a Feast every year upon the Feast-day of St. John the Baptist in some place of the City belonging to them and there to make Orders and By-Laws c. And that the said Corporation at a Meeting held the 20th of March in the 21st year of the Reign of the late King Charles the Second did make an Ordinance or By-Law That if any person being Master or one of the Chief Wardens of the Corporation aforesaid at any of their Assemblies should reproach or revile the Master or any of his Brethren or any of the Common Council of the Corporation he should forfeit 6 s and 8 d And if any other person or persons of the said Bodies should revile or use any unhandsom Speech of the Master Wardens or any of the said Council he should forfeit 3 s and 4 d the said Fines to be levied by Distress upon a Warrant under the Corporation Seal and by sale of the Offenders Goods after Four days Notice given to the Fine so set forth and an Allowance of the By-Law by the Justices of Assize according to the Statute of Henry the 7th And further saith That the Plaintiff being a Member of the said Corporation and having Notice of the said By-Law did at an Assembly of the said Master and Wardens in the Common Hall say of the said Master and Wardens in the said Corporation these words viz. The Masters ipsos Magistrum Custod ' innuendo are all a Company of Pickpocket Rogues and divers other very scurrilous and reproachful Words were set forth to have been there spoken of the said Master and Wardens by the Plaintiff whereby the Plaintiff forfeited 3 s and 4 d by the said By-Law which was demanded of him and by him neglected to be paid by the space of six Days Whereupon the said Master made his Warrant directed to the Defendant commanding him to Levy the said 3 s and 4 d by distress and sale of the Goods of the Plaintiff And the Defendant by virtue of the said Warrant did enter into the Plaintiffs House being then open and took the Goods in the Declaration mentioned Nomine districtionis prout ei bene licuit And to this Plea the Plaintiff demurred and Judgment was given for the Plaintiff For a Corporation cannot make a By-Law to have a Forfeiture levied by the sale of Goods 8 Co. 127. nor for Forfeiture of Goods And here tho' the Defendant only Distrained neither is the Defendant charged with selling the Goods in the Declaration yet the By-Law being void as to the selling is void in toto and no Justification can be upon it It was also said at the Bar That the Distress was excessive to distrain so many Dishes for 3 s and 4 d Indeed a man cannot sever a Distress and therefore in some cases a Distress of great value as a Cart and Horses may be taken for a small matter because not severable but here he might have taken some of the Dishes But the Court did not regard that Exception because it did not appear of what value the Dishes were Again it was said That they ought to have made the By-Law upon St. John Baptists Day To
Septembris Anno Domini millesimo sexcentesimo octogesimo octavo supradicto apud parochiam praed ' in Com' praedict ' And took Husband cepit in virum quendam Samuelem Carter per quod iidem Samuel Maria in praedict ' peciam terrae stabula praed ' intraverunt fuerunt inde possessionat ' Ipfisque Samuel Maria sic inde possessionat ' existen ' The Husband and Wife entred and were possest praedict ' Samuel Maria dict' Willielm ' ad ejus propr ' onera custagia facere Aquaductale Anglicè a Drayn ad Aquam vacuam Anglicè the waste Water à suis Domibus in forma praed ' aedificat ' fact ' per praedict ' peciam terrae stabula praedict ' in magnam Canalem Anglicè Main Shoar in Six Bell-yard praed ' The Breach assigned abducend ' juxta vim formam effectum Indenturae praed ' non permiserunt sed praedict ' Willielm ' facere Aquaductale Anglicè a Drayn ad Aquam vacuam Anglicè waste Water in dictis domibus per praed peciam terrae stabula praedict ' in magnam Canalem Anglicè Main Shoar in Six Bell-yard praedict ' abducend ' recusaverunt adhuc recusant licet ad ill ' permittend ' iidem Samuel Maria per eundem Willielm ' Target postea scilicet primo die Augusti Anno Domini millesimo sexcentesimo octogesimo nono apud parochiam Sancti Jacobi praed ' in Com' praedict ' requisit ' fuerunt ' non tenuit set infregit ill ' p̄fat ' Willelmo hucusque tenere omnino contradixit adhuc contradic ' Unde dic ' quod deteriorat ' est dampnum habet ad valenciam Centum librarum Et inde produc ' sectam c. Et praedict ' Elizabetha per Johannem Tissar Attorn ' suum venit defendit vim injur ' quando c. The Defendant pleads That he permitted the Plaintiff to make a Drayn according to his Covenant Et dic ' quod praedict ' Willielm ' Target acconem suam praedict ' versus eum habere non debet Quia dic ' quod praedict ' passagium dictis praemissis praefat ' Willielmo di missis pertinens est scituat ' in praedict ' parochia Sancti Jacobi Westm ' praedict ' ducit à praedict ' dom ' praefat ' VVillielmo ut praefertur dimiss usque ad Six Bell-yard praed ' in praedict ' parochia Sancti Jacobi VVestm ' quodque quoddam Aquaductale Anglicè a Dray◠ad Aquam vacuam Anglicè the waste Water à dictis dom ' in praedict ' magnam Canalem fossam Anglicè Main Shoar in Six Bell-yard praedict ' abducend ' in per passagium praedict ' convenient ' fieri potuit potest quodque ipsa eadem Elizabetha post confecconem dimissionis praed ' praefat ' Willielmo ut praefertur factae scilicet praedict ' decimo sexto die Novembris anno regni dicti nuper Regis Jacobi quarto supradicto apud parochiam Sanctae Margaretae VVestm ' That he permitted and gave liberty praed ' permisit libertatem dedit praefat ' VVillielm ' ad ejus onera custagia facere Aquaductale in per passagium praedict ' ad Aquam vacuam à dictis dom ' in praed ' magnam Canalem Fossam in Six Bell-yard praed ' abducend ' per quod idem VVillielmus aquaductale ill ' in per passagium praed ' ad libitum suum facere potuisset si voluisset set hoc facere penitus recusavit Et hoc parat ' But the Plaintiff refused it est verificare unde petit Judicium si p̄dict ' VVillielmus acconem suam praed ' versus eam habere debeat c. The Plaintiff Demurs Et praedictus VVillielmus dicit quod praedict ' placitum praedict ' Elizabeth ' superius in Barram placitat ' ac materia in eodem content ' minus sufficien ' in lege existunt ad ipsum VVillielmum ab accone sua praed ' versus praefat ' Elizabetham habend ' praecludend ' quodque ipse ad placitum illud modo forma praedictis placitat ' necesse non habet nec per legem terrae tenetur respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' respons ' praed ' Elizabethae in hac parte placitat ' idem VVillielmus pet ' Judicium dampna sua occon ' fraccon ' convenconis praedict sibi adjudicari c. The Defendant joyns in Demurrer Et praedict ' Elizabetha ex quo ipse sufficien ' materiam in lege ad praedict ' VVillielm ' ab accone sua praedict ' versus ipsam Elizabetham habend ' praecludend ' superius allegavit quam ipsa parat ' est verificare Quam quidem materiam praedict ' VVillielmus non dedit ' nec ad eam aliqualit ' respond ' sed verificacon ' ill ' admittere omnino recusat pet ' Judicium Et quod praedict ' VVillielmus ab accone sua praedict ' versus eam habend ' praecludatur c. Et quia Cur ' dicti domini Regis dominae Reginae hic de Judicio suo de super praemissis reddend ' nondum advisatur dies inde dat' est partibus praedictis hic usque de audiendo inde Judicio suo eo quod Justic ' hic inde nondum c. Target versus Loyd IN an Action of Covenant the Plaintiff Declared That by Indenture made at Saint Margarets in Westminster between the Defendant by the name of Elizabeth Loyd of the Parish of Saint Margarets Westminster c. and the Plaintiff c. Testatur That the Plaintiff had demised to the Defendant all those two Messuages c. lying and being in Market-Lane in the Parish and County aforesaid with all Ways Passages c. to hold for one and twenty years reserving 24 l yearly Rent and the Plaintiff set forth divers Covenants in the Indenture to be performed on his part viz. That he should repair and enlarge the Passage belonging to the Premisses c. and then sets forth that the Defendant by the said Indenture for her self her Executors Administrators and Assigns did Covenant with the Plaintiff that she her Executors Administrators and Assigns would permit the Plaintiff at his proper Costs to a make a Drain to convey the wast Water from the said Houses demised as aforesaid to the main Shore in Six Bell Yard prout per Indentur ' p̄d ' plen ' liquet and then shewed that he entred and became possessed by vertue of the said Demise and that the Defendant had broke the said Covenant eo quod that she being possessed of a Term for years then and yet to come of a certain parcel of Land and two Stables lying between the demised Premisses and the said main Shore in Six Bell Yard and by which the Drain aforesaid ought to run from the said Houses into the main Shore aforesaid
void if Livery had been made It was Resolved not to enure as a Covenant to stand seised because the Deed was void in the frame of it The Lords affirmed the last Judgment given by the Lords Commissioners c. and held that no Vse would arise With the concurrent Opinion of Baron Nevil Justice Eyre and Justice Ventris THE ARGUMENT OF Mr. Iustice Ventris IN THE EXCHEQUER-CHAMBER UPON A Writ of ERROR out of the Kings-Bench Christopher Dighton Gent Plaintiff versus Bernard Greenvil Esq Defendant THE Plaintiff brought a Writ of Error upon a Judgment in an Action of Trespass and Ejectment in the Kings-Bench given for the Defendant where the Plaintiff declared upon the Demise of Theophilus Earl of Huntington of a Moeity of the Mannor of Marre and of divers Messuages Lands and Tenements lying in Marre Bentley in Baln in the County of York and also of the Demise of Robert Earl of Scarsdale of the other Moiety of the said Mannor and of the Demise of Elizabeth Lewis of the entire Mannor of Marre and that by Vertue of these several Demises he entred and was possessed until ejected by the Defendant Vpon Not Guilty pleaded the Jury found the Defendant Not Guilty of the Trespass and Ejectment upon the Demise of Elizabeth Lewis and as to the Demises of the several Moieties by the said Earls they found a Special Verdict to this effect Viz. That Thomas Lewis the 9 of April 20 Jac. 1. before the Mayor of Lincoln acknowledged a Statute Merchant to William Knight for 1200 l to be paid at the Feast of St. Philip and Jacob then next following and that the said Money was not paid at the day and that William Knight the 16 of November 1629. made his last Will and one Isaack Knight his Executor and died that Isack proved the said Will and in Trinity Term 20 Car. 1. sued a Cap. si laicus out of the Common Pleas against the said Thomas Lewis directed to the Sheriff of Lincoln returnable in Tres Trin. who returned quod laicus fuit sed not fuit inventus in balliva sua upon which issued a Writ hearing Teste the 7 of July 23 Car. 1. Vic Eborum to estate the Goods and Chattels and all the Lands and Tenements of the said Thomas Lewis tempore Recognitionis debiti praed ' returnable Mense Michael upon which the said Sheriff returns an Inquisition taken the 11 of October then next following whereby Thomas Lewis was found seised of divers Lands and Tenements parcel of the Lands in the Declaration mentioned to be demised by the said Earls which he the same day caused to be delivered to the said Isack to hold by Extent as his Free-hold until he should be satisfied of his said Debt with his Damages and Costs They further find That the said Thomas Lewis and one John Levet and Thomas Lever the 20 of Novemb. 13 Car. 1. acknowledged a Recognizance in nature of a Statute Staple before the Lord chief Justice Brampston to Richard Gerrard for 1000 l payable at Christmass then next following which Money was not paid at the day and that upon a Certificate of the said Recognizance in the Chancery by John Gerrard surviving Executor of Richard Gerrard the 22 of June 24 Car. 1. there issued a Cap. si laicus and an Extent against the said Thomas Lewis to the Sheriff of the County of York retainable in Craft animar ' prox ' at which day the Sheriff returned all Inquisition by him taken whereby it appeared that the said VVilliam Lewis tempore Recogn ' debiti praed ' was sessed in Fee of the Mannor of Marre and of divers Messuages Lands and Tenements being the same Lands in the Declaration mentioned to be devised by the said Earls and the 29 of Novemb. 24. Car. 1. a Liberate was sued out returnable in quinden ' Hillar ' to the said Sheriff who returned that the 29 of Novemb. 24. Car. 1. he had caused to be delivered the said Mannor Messuages Lands and Tenements to the said John Gerrard to hold as his Free hold until he should be satisfied his said Debt will his Damages and Costs They further find That Thomas Lewis and Thomas Lever the 27 of May 15 Car. 1. acknowleged a Recognizance in nature the of a Statute Staple before the Lord Chief Justice Brampston to Sir Gervase Elwaies and William Burroughs for 5000 l payable at the Feast of St. John the Baptist next following which Money was not paid at the day and that upon a Certificate of the said Recognizance in Chancery by the said Sir Gervase Elwaies and William Burroughs the 10 of Decemb. 15 Car. 1. there issued out a Cap. si laicus and an Extent against the said Thomas Lewis directed to the Sheriff of the County of York returnable in Quinden ' Hill prox at which day the Sheriff returned on Inquisition by him taken whereby it appeared that the said William Lewis tempore Recogn ' debiti praed ' was seised in Fee of a Capital Messuage in Marre and of divers Messuages Lands and Tenements being the same Lands mentioned in the Declaration to be demised by the said Earls and that the 10 of Febr. 15 Car. 1. a Liberate ' was sued out returnable in Quidden ' Pasch to the said Sheriff who returned that he had caused to be delivered the said Lands and Tenements to the said Sir Gervase Elwaies and William Burroughs to hold as their Free hold until they should be satisfied the said Debt with their Damages and Costs They find that Thomas Lewis was seised of all the Lands mentioned in the said several Inquisitions at the respective times of his acknowledgment of the said Statute and Recognizance They find that the 15 of July 1651. Isaack Knight and John Gerrard by their respective Deeds granted their said several extended interests to one Edward Lewis by vertue whereof the said Edward Lewis became possessed of the Mannor and the Tenements praed Edwardo sic possessionat existente praedictoque Thoma Lewis de Manerio omnib ' premissis seisit ' existen ' in actual reali possessione inde the said Thomas Lewis by his Indenture of Lease and Release dated the 25 and 26 of May 1657. for 4000 l conveyed the said Mannor and Premisses to John Lewis and his Heirs in which there is a Covenant to Levy a Fine before the end of Trinity Term then next ensuing and that accordingly in Trinity Term 1657. The said Thomas Lewis did Levy a Fine come ceo with Proclamations of the said Mannor and Premises to the said John Lewis to the uses in the said Indenture mentioned by vertue whereof the said John Lewis was seised in Fee of the said Mannor and Premises And that John Lewis being thereof so seised the 21 day of July 1670 made his last Will and Testament in Writing and thereby devised the said Mannor and Tenements to Edward Lewis and the Heirs Males of his Body and for want of such Issue to his
Daughters Elizabeth and Mary and the Heirs of their Bodies lawfully Issuing and for want of such Issue to his own right Heirs and that John Lewis the 1 of August 1671 died so seised and that the said Mannor and Premises at the time of making of the said Will were in the possession of the said Edward Lewis and that by vertue thereof the said Edward Lewis became seised of the said Mannor and Premises prout lex postulat and that in Michaelmass Term 23 Car. 2. the said Edward Lewis being so seised levied a Fine come ceo with Proclamations of the said Mannor and Premisses to Francis and his Heirs to the use of Edward Lewis and his Heirs They find that John Lewis had Issue two Daughters Elizabeth and Mary who were the Heirs both of John and Edward Lewis and that Edward Lewis 30 Sept. 26 Car. 2. died without Issue and that the said Elizabeth and Mary as Heirs to both John and Edward Lewis thereupon entred into the said Mannor and Premisses and were seised prout lex postulat and that Elizabeth afterwards married Theophilus Earl of Huntington and that Mary married Robert Earl of Scarsdale by virtue whereof the said Earls in right of their said Wives entred into the said Mannors and Premisses and were seised prout lex postulat They find that the Executors of Edward Lewis assigned to Elizabeth Lewis Widow all their interest in the said Statute and Extent by virtue whereof the said Elizabeth entred and was possessed but in Trust for the said two Earls and demised the same unto the said Earls at Will They find that the 6th of November 1672. Sir Gervase Elwaies died and that William Burroughs survived and that he afterwards on the 3d of May 30 Car. 2. died and that on the 30th of July 1680. Administration as to the said Recognizance and Sum of 5000 l and Process thereupon was committed to Anne Greenvil Wife of the said Bernard and that the said Earls being so seised on the 31st of July 32 Car. 2. the said Bernard Greenvil and Anne his Wife Administred of all the Goods and Chattels of Richard Gerrard Vnadministred by John Gerrard and Francis Gerrard which Administrators of the Goods and Chattels of Richard Gerrard cum Testamento annexo did confess themselves to be fully satisfied the said 1000 l in the said Recognizance acknowledged by Thomas Lewis unto the said Richard Gerrard and of their Damages and Costs thereby sustained and prayed that the said Recognizance might be vacated which was accordingly done and afterwards on the 28th of September 24 Car. 2. the said Bernard in Right of the said Anne entred into the said Mannor and Premisses and afterwards viz. on the 1st of June 34 Car. 2. the said Earls entred upon the said Bernard and made Leases in the Declaration to the Plaintiff by virtue whereof the Plaintiff was possessed until ejected by the Defendant and concludes generally that if Bernard be guilty they assess Damages to 12 d and Costs to 40 s and if Not guilty they find so There have been divers Points made in the Case by the Counsel that have Argued some have made more than others But the Method I shall take will be to observe the several Transactions that have been in the Case as they are found in this Special Verdict and to Consider of what effect and consequence they will be in Law for the Barring of the Extent upon the Statute acknowledged to Elwaies and Burroughs either in respect of any present Right that he had at the time of the Fines levied or any future Right that should first come to him upon the Satisfaction acknowledged upon Gerrard's Statute so as to give him the benefit of the second Saving in the Statute of the 4th of Henry the 7th of Fines It is found that there were three Statutes successively acknowledged and that the last Statute was extended first which I think makes neither one way nor other and that on the 5th of July in the Year 1655. the two Extents which were upon Knight's Statute and Gerrard's Statute which were the 1st and 2d in time acknowledged were assigned to Edward Lewis and two years after in the year 1657. Thomas Lewis who is found to be in the actual and real possession of the Lands in question and Edward Lewis in possession prout lex postulat bargained and sold the Premisses to Sir John Lewis in Fee and levied a Fine in Trinity Term 1657. to him with Proclamations and Five years passed without any Claim by Edward Lewis Before I go any further I will see what became of the Extents upon the several Statutes to Knight and Gerrard after this Assignment Fine and Non-claim I Observe that the Counsel for the Defendant hath Argued That the Extents upon Gerrards and Elwaies Statutes were Reversions or Reversional Interests and thereupon have concluded that Knight's Extent was drowned in Gerrard's Extent after they came both to be assigned to Edward Lewis Which Point they made use of first to remove Knight's Statute out of the way for if that be not made an end of some way or other there having been no Satisfaction acknowledged upon that it would stand in way of the Defendants Title And this is also of use to them in another Matter for if the two Extents upon the Statutes of a latter date be Reversional Interests the Consequence will be that when Sir John Lewis devised the Inheritance to Edward Lewis Gerrard's Extent will not thereupon be drowned in the Fee because of the Reversional Interest which was then in Burroughs and Elwaies that comes between as is Resolved in the Case of Chamberlain and Ewer in 2 Brownl 12. For if Gerrard's Statute were drowned by that Devise it would make an end of it too soon for the Defendants purpose for that the Estate and Interest by Extent they would suppose to continue at least as to Burroughs and Elwaies till such time as Satisfaction should be acknowledged which was not done till Twelve years after For my part I do not think it necessary to the Resolution of the main Point of this Case to insist upon the Drowning or to determine whether the Extent upon Gerard's Statute and Burrough's Statute were Reversions or in the nature of Reversional Interests yet because it has not been a Point much spoken to on both sides I will say something to it by and by and I do incline to think that they are in the nature of Reversions and that Knight's Extent after the Assignment to Edward Lewis became drowned in Gerrard's Extent But whether there were any drowning or no there is enough in the Case besides to take Knight's Extent out of the way or to determine it For I am not satisfied that Knight's Statute as the Verdict is found was ever extended at all for it is found to have been acknowledged before the Mayor of Lincoln and that the Money was not paid at the day and that Knight the Conusee died
only shewn upon the Declaration to enable the Plaintiff to bring his Action Note This is aided by a late Act of Parliament Jay versus Bond. IN Trespass the Defendant pleads that Ante Quinden ' Sancti Martini usque ad hunc diem praed ' Jay Excommunicatus fuit adhuc existit protulit hic in Cur ' literas Testamentarias Episcopi Sarum quae notum faciunt universis quod scrutatis Registeriis invenitur contineri quod Excommunicat ' fuit c. pro contumacia in non comparendo to a Suit for Tythes c. in cujus rei Testimonium praed ' Episcopus Sigillum apposuit It was objected that such a kind of Certificate of Excommunication as this is was not allowable for it ought to be positive and under the Seal of the Ordinary whereas this is only a relation of what is found in their Register Sed non allocatur for tho' such a form of pleading would be altogether insufficient in our Law yet their course is sometimes to certifie Excommunication sub sigillo Ordinarij and sometimes per literas Testamentarias as here Hale said to plead Letters Patents without saying sub magno sigillo is naught and that because the King has divers Seals Note The entry was here quod Defendens venit dicit c. Hale doubted whether he ought not to have made some kind of defence tho' no full defence is to be made when Excommengment in the Plaintiff is pleaded Owen versus Lewyn THe Plaintiff declared in Action upon the Case upon the Custom of the Realm against a Common Carrier and also sur Trover and Conversion Hale said so he might for Not guilty answers both but if a Carrier loseth Goods committed to him a General Action of Trover doth not lye against him Termino Sancti Michaelis Anno 24 Car. II. In Banco Regis Davenant against the Bishop of Salisbury IN Covenant The Plaintiff declared that the Bishop of Salisbury the Defendants Predecessor being seized in Fee demised unto him certain Lands for 21 years reserving the antient Rent c. and Covenanted for him and his Successors to discharge all publick Taxes assessed upon the Land and that since the Defendant was made Bishop a certain Tax was assessed upon the Land by vertue of an Act of Parliament and that the Plaintiff was forced to pay it the Defendant refusing to discharge it unde Actio accrevit c. The Defendant demurred first to the form for that 't is said that the Predecessor Bishop was seized and doth not say in jure Episcopatus But Hale said the Old Books were that where it was pleaded that J. S. Episcopus was seized that it implies seizin in the right of the Bishoprick which is true if he were a Corporation capable only in his politick capacity or as an Abbot c. but in regard he might also be seized in his natural capacity the Declaration was for this Cause held to be ill The matter in Law was whether this were such a Covenant as should bind the Successor as incident to a Lease which the Bishop is empowred to make by the 32 H. 8. For 't is clear if a Bishop had made a Covenant or Warranty this had not bound the Successor at the Common Law without the consent of the Dean and Chapter and if it should be now taken that every Covenant would bind the Successor then the Statute of 1 Eliz. would be of no effect But Hale said admitting this were an antient Covenant and if so it should have been averred to have been used in former Leases to discharge ordinary payments as Pentions or Tenths granted by the Clergy then it might bind the Successor by the 32 H. 8. But it were hard to extend it to new charges And we all know how lately this way of Taxes came in But the Court said that the Declaration being insufficent for the other matter they would not determine this But they held that however this Covenant should prove it would not avoid the Lease Vid. Gee Bishop of Chicester and Freedlands Case 3 Cro. 47. Note Hale said that antiently when the Sheriff returned a Rescous upon a Man he was admitted to plead to it as to an Indictment But the course of the Court of latter times has been not to admit any Plea to it but to drive the party to his Action upon the Case as upon the return of a Devastavit c. Cole versus Levingston IN Ejectment upon a long and intricate Special Verdict the Chief Justice said never was the like in Westminster Hall these following Points were resolved by the Court and declared by Hale as the Opinion of himself and the rest of the Judges First That where one Covenants to stand seized to the use of A. and B. and the Heirs of their Bodies of part of his Land and if they die without Issue of their Bodies then that it shall remain c. and of another part of his Land to the use of C.D. and E. and the Heirs of their Bodies and if they die without Issue of their Bodies then to remain c. that here there are no cross Remainders created by Implication for there shall never be such Remainders upon construction of a Deed tho' sometimes there are in case of a Will 1 Rolls 837. Secondly As this Case is there would be no cross Remainders if it were in a Will for cross Remainders shall not rise between three unless the words do very plainly express the intent of the Devisor to be so as where black Acre is devised to A. white Acre to B. and green Acre to C. and if they die without Issue of their Bodies vel alterius eor ' then to remain there by reason of the words alterius eor ' cross Remainders shall be Dier 303. But otherwise there would not Gilbert v. Witty and others 2 Cro. 655. And in this case tho' some of the Limitations are between two there shall be no cross Remainders in them because there are others between three and the intent shall be taken to the same in all The Dean and Chapter of Durham against the Lord Archbishop of York IN a Prohibition the Archbishop pleaded a Prescription that he and his Predecessors have time out of mind been Guardians of the Spiritualties of the Bishoprick of Durham Sede vacante and Issue joyned thereupon and tried at the Bar this Term. Hale said De jure communi the Dean and Chapter were Guardians of the Spiritualties during the vacancy as to matters of Jurisdiction but for Ordination they are to call in the aid of a Neighbouring Bishop and so is Linwood But the Usage here in England is that the Archbishop is Guardian of the Spiritualties in the Suffragan Diocess and therefore it was proper here to joyn the Issue upon the Usage There was much Evidence given that antiently during the vacancy of Durham the Archbishop had exercised Jurisdiction both Sententious and other as Guardian of the Spiritualties
that time this made an Estate Tail But if it had béen and after their decease to their Children then the Children should take by Purchase tho' born after 'T is true that case is variously reported in the Books but I adhere to my Lord Coke presuming that being brought before all the Judges in the Argument of VVilds Case it was a true Report As for the second Point 't is plain that the power is extinguished for by the Recovery the Estate for Life to which it was annexed in privity is gone and forfeited so that 't is not necessary to dispute the third Point whether well executed or no But upon the whole I agree with my Brother Rainsford that the Plaintiff ought to have Judgment Hale I differ from my two Brothers and tho' I was of their Opinion at the finding of the Special Verdict yet upon very great Consideration of the Case I am of Opinion for the Defendant I shall proceed in a different method from my Brothers and begin with that Point which they made last and I agree with them admitting that Bernard had but an Estate for Life that the power was destroyed also here the Recovery does not only bar the Estate but all powers annexed to it for the recompence in value is of such strong Consideration that it serves as well for Rents Possibilities c. going out of and depending upon the Land as for the Land it self So Fines and Feoffments do ransack the whole Estate and pass or extinguish c. all Rights Conditions Powers c. belonging to the Land as well as the Land it self Secondly I agree with my Brother Rainsford that if Bernard had but an Estate for Life by the Devise the power was not well executed Where Tenant for Life has a power to make Leases 't is not always necessary to recite his power when he makes a Lease but if he makes a Lease which will not have an effectual continuance if it be directed out of his interest there it shall be as made by virtue of his power and so it was resolved in one Roger's Case in which I was Counsel Again Tho' it be here by Covenant to stand seized an improper way to execute his power yet it might be construed an Execution of it Mich. 51. In this Court Stapleton's Case where a Devise was to A. for Life Remainder to B. for Life Remainder to C. in Fee with power to B. to make his Wife a Joynture B. covenanted to stand seized for the Joynture of his Wife reciting his power tho' this could not make a legal Joynture yet it was resolved to enure by virtue of his power quando non valet quod ago ut ago valeat quantum valere potest But in this Case Bernard has got a new Fee which tho' it be defeasible by him in Remainder yet the Covenant to stand seized shall enure thereupon and the use shall arise out of the Fee Thirdly I was at the first opening of the Case of Opinion that Bernard had but an Estate for Life but upon deep Examination of the Will and of the Authority and Considerations of the Consequences of the Case I hold it to be an Estate Tail And first to ease that Point of all difficulties if cannot be denied but a Devise to a Man and the Heirs of his Body by a second Wife makes an Estate Tail executed tho' the Devisee had a Wife at the time As the Case often cited Land given to a Married Man and a Married Woman and the Heirs of their Bodies We are here in case of the Creation of an Estate-Tail where intention has some influence voluntas Donatoris c. and may help words which are not exactly according to legal form 39 Ass 20. Land given to a Man and his Wife haeredi de corpore uni haeredi tantum this judged an Entail Again we are in case of an Estate Tail to be created by a Will and the intention of the Testator is the Law to expound the Testament therefore a Devise to a Man and his Heirs Males or a Devise to a Man and if he dies without Issue c. are always construed to make an Entail It must be admitted that if the Devise were to B. and the Issue of his Body having no Issue at that time it would be an Estate Tail for the Law will carry over the word Issue not only to his immediate Issue but to all that shall descend from him I agree it would be otherwise if there were Issue at the time Tayler and Sayer 41 Eliz. rot 541. a Devise to his Wife for Life 1 Cro. 742. Remainder to his Issue having two Children it was held the Remainder was void being to the Issue in the singular number for incertainy which should take But that was a little too rank for Issue is nomen collectivum Again I agree if a Devise be made to a man and after his death to his Issue or Children having Issue at that time they take by way of Remainder And that was the only Point adjudged in Wild's Case and there also against the Opinion of Popham and Gawdy This way being made I come to the Case it self and shall briefly give my Reasons why I hold Bernard has an Estate Tail First Because the word Issue is nomen collectivum and takes in the whole Generation ex vi termini and so the Case is stronger than if it were Children And where 't is said to the Issue that he shall have of the Body of the second Wife that is all that shall come of the second Wife For so 't is understood in common Parlance Secondly In all Acts of Parliament Exitus is as comprehensive as Heirs of the Body In Westm 2. de donis Issue is made a term of equivalence to Heirs of the Body for where it speaks of the Alienation of the Donee 't is said quo minus ad exitum discenderet So in 34 H. 8. of Entails setled by the Crown 'T is true in Conveyances c. the wisdom of the Law has appropriated the word Heirs as a Term of Art In Clerke's Case A Lease was made to commence after the death of his Son without Issue the Son had a Son and died and then that Son died without Issue It was Resolved both in the Kings Bench and the Exchequer that the Lease should commence for Issue being nomen collectivum whenever the Issue of the Son failed the term of Commencement did happen But now to see the difference Tyler's Case Mich. 34 Eliz. B.R. He had Issue A. B. C. and D. and Devised to his Wife for Life and after her death to B. his Son in Tail and if he dies without Issue then to his Children A. had Issue a Son and died and B. died without Issue Resolved that the Son of A. should not take as one of the Children of the Testator Which Case I cite to shew the odds between the word Issue and the
Fowle late Sheriffs of Middlesex and which was recovered by the said late King in the Court of Exchequer against the said Davis c. by virtue of which Writ they seized all the Goods of the said Davis in their Bailywick which were apprized at 27 l which they Returned into the Exchequer as the Writ required and the said Davis had no other Goods or Chattels Lands or Tenements within their Bailywick at the time of the Outlawry or ever after c. To this the Plaintiff Demurred and the Court held the Plea insufficient for they set forth that the Predecessor Sheriffs had seised and taken the Debt into the Kings hands so that Execution seemeth to be had before the Defendants were Sheriffs But Judgment was given against the Plaintiff for the Court held that the Action would not lye for the party who has an Outlawry that because the Sheriff upon the Cap ' utlagatum neglects to extend or seize the Goods and Lands of the Outlawed person for that is the Kings loss And tho' it was pretended that the Sheriff extending an seizing would be a means to enforce the Defendant to appear to the Plaintiffs Action the Court said that it was so remote as not to be considered as a ground to support an Action but if it had been shewn that the Sheriffs might have taken his Body and had neglected to do it there might have been more reason to support this Action So Judgment was given quod Querens nil capiat per breve Sir Thomas Gower's Case HE had upon a Commission made an Attorney in order to suffer a Recovery this Term which was done the last Assizes at York And the Court was now moved in behalf of the Heir in Tail to stop the passing of the Common Recovery and several Affidavits were produced to satisfie the Court that Sir Thomas Gower since the said Assizes died in Ireland and the Court being satisfied of the truth thereof did stay the passing of the Recovery and they said if it should pass it would be Erroneous Bealy versus Sampson Lincoln ' ss Trespass for Impounding of his Cattel quousque finem fecit of 10 l JOHANNES Sampson ' nuper de Mawvis Enderby in Com' praedict ' Yeoman attach ' fuit ad respondend ' Willielmo Bealy de placito quare ipse simulcum Georgio Francis nuper de Stamton ' in Com' praedict ' Labourer Vi armis averia ipsius Willielmi pretii quadraginta librarum apud Halton cum Beckeringe nuper invent ' cepit imparcavit ea ibidem sic imparcat ' quousque idem Willielmus finem undecim librarum pro deliberatione eorundem inde habend ' cum praedict ' Johanne Georgio fecisset detinuit alia Enormia ei intulit ad grave dampnum ipsius Willielmi Et contra pacem domini Regis nunc c. Et unde idem Willielmus per Johannem Fancourt Attorn ' suum queritur quod praedict ' Johannes simulcum c. primo die Februar ' anno regni domini Regis nunc c. tertio vi armis c. averia viz. quatuor boves quatuor vaccas ipsius Willielmi pretii c. apud Halton cum Beckeringe praedict ' nuper invent ' cepit imparcavit ea ibidem sic imparcat ' quousque idem Willielmus finem undecim librar ' pro deliberatione eorundem inde habend ' cum praed ' Johanne Georgio fecisset detinuit Et alia Enormia c. ad grave dampnum c. Et contra pacem c. Unde dic ' quod deteriorat ' est dampnum habet ad valenc ' quadraginta librar ' inde produc ' sectam c. Et praedict ' Johannes Sampson per Stephan ' Malton Attorn ' suum ven ' defend ' vim injur ' quando The Defendant pleads a seizure by the Sheriff by virtue of a Fieri facias Non culp ' to part c. Et quoad Venire vi armis seu quicquid quod est contra pacem dicti dn̄i Regis nunc dic ' quod ipse non est inde culpabilis prout praedict ' Willielmus superius versus eum queritur Et de hoc pon ' se super patriam Et praedict ' Williel ' similit ' Et quoad resid ' Transgr ' praedict ' superius fieri supposit ' idem Johannes dic ' quod praedict ' Willielmus actionem suam praedict ' inde versus eum habere non debet quia dic ' quod ante praedict ' tempus quo Transgr ' praed ' Fieri facias issued out of the Court of Common Pleas. superius fieri supponitur scilicet quintodecimo die Junii anno regni dicti domini Regis nunc tertio emanavit extra Cur ' dicti domini Regis de Banco hic scilicet apud Westm ' quoddam breve dicti domini Regis nunc de Fieri fac ' versus praedict ' Willielm ' ad sectam ipsius Johannis tunc Vic' Com' Lincoln ' direct ' per quod quidem breve dictus dom ' Rex nunc praefat ' tunc Vic' Com' Lincoln ' praecepit quod de terris catallis praedict ' Willielmi in balliva ejusdem Vic' Fieri fac ' tam quoddam debitum decem librar ' quod praedict ' Johannes Sampson in Cur ' dicti domini Regis coram Justic ' ejusdem domini Regis apud Westm ' recuperasset versus eum quam quadragint ' solid ' qui eidem Johanni Sampson in eadem Cur ' dicti domini Regis adjudicat ' fuer ' pro dampnis suis quae habuisset occasione detent ' debiti illius qd ' denar ' ill ' haberet coram Justic ' dicti domini Regis apud Westm ' a die Sancti Martini in quindecim dies ad reddend ' praefat ' Johanni de debito dampnis praedict ' unde convict ' fuit quod quidem breve postea ante rētorn ' ejusdem brevis necnon ante praedict ' tempus quo Delivered to the Sheriff c. scilicet secundo die Augusti anno tertio supradicto apud Halton in Com' praedict ' cuidam Antonio Eyre Ar ' tunc Vic' Com' Lincoln ' existen ' deliberat ' fuit in forma juris exequend ' Virtute cujus quidem brevis praedict ' Vic' praedict ' Com' Lincoln ' postea ante retorn ' ejusdem brevis necnon ante praedict ' tempus quo The Sheriff made his Warrant c. scilicet eodem secundo die Augusti Anno tertio supradicto apud Halton praedict ' pro executione brevis praedict ' habend ' fecit quoddam Warrant ' suum in scriptis sigillo Officii sui Vic' sigillat ' ballivo Wapentag ' de Wraggoe necnon praedict ' Georgio Francis Balliv ' ejusdem Vic' ea vice tantum direct ' per quod quidem Warrant ' praedict ' Vic' praedict ' Com' Lincoln ' eis cuilibet eorum conjunctim divisim mandavit quod de terris catallis praedicti Willielmi
late Case and if this sicut debuit is not sufficient 't is laid further in the Declaration that he did not permit the Plaintiff to have the benefit of this Foldage But the Court held the Declaration insufficient for that there is no Authority in any Book of Law to shew that the word Faldagium did imply so much as was pretended on the Plaintiffs part Faldagium is to have Sheep folded in his ground as Falde cursus is a Sheep-walk or feed for his Sheep and if it be the usage in case of Foldage for the Owner of the Sheep to bring his Sheep to the Fold it ought to have been so set forth for the Court cannot take notice of the private usages of Countries and if the Faldagium did imply what the Plaintiff would have it then it should have been set forth that the Plaintiff had set up a Fold in the Land where the Sheep were to have been folded for he was to do the first act which must have been shewn if all the particulars had been set forth and sicut debuit is not enough here for the obscurity of the word Faldavit so that it doth not appear to the Court what ought to have been done on the Defendants part and to say non permisit Querentem habere beneficium Faldagii was not good without shewing how he disturbed him as 8 Co. in Francis Case Sed nota That was upon Demurrer but here 't is not said non permisit the Plaintiff habere Faldagium or non permisit eum faldare but non habere beneficium faldagii so that it was not certain what was meant for the Sheep might be folded and yet he might be deprived of the benefit of the foldage And the Chief Justice said here the Prescription is laid to have the Sheep going infra Communes Campos Territoria de Grancester to be folded and Territoria is a word unknown in the Law so no certainty in the Prescription Note Here a Prescription is laid in a Body Aggregate in a que Estate but that was held to be well enough because for a thing appurtenant to the Mannor Vide 2 Cro. 673. Kelw. 140. B. 1 Inst 121. a. But for the Reasons above mentioned the Iudgment was stayed by the Opinion of the whole Court George versus Butcher DEbt upon a Bond. The Defendant demands Oyer of the Condition which was to perform certain Articles of Agreement and the Defendant set forth the Articles made between the Defendant of the first part the Plaintiff of the second part and Rebecca Morse Widow Joseph Morse Samuel Morse John Morse Daniel Morse Nathaniel Morse Robert Morse and Thomas Morse Sons of the said Rebecca of the third part by which it was recited that a Marriage was intended between the Defendant Butcher and the said Rebecca by means whereof the Defendant would become possessed of her Personal Estate and in consideration thereof the Defendant covenanted by the said Articles inter al' having also recited that Robert Morse deceased Father of the said Joseph Morse Samuel Morse John Morse Daniel Morse Nathaniel Morse Robert Morse and Thomas Morse had by his Will bequeathed cuilibet ipsorum praed ' Josepho Samuel ' Johan ' Daniel ' Robert ' Tho' omitting Nathaniel the sum of 50 l with the Plaintiff that the said Defendant would pay praed ' Josepho Samuel ' Johan ' Nathaniel ' Robert ' Tho' praedict ' seperal ' legationes vel summas quinquaginta librat ' And the Defendant pleads further that he paid to the said Joseph Samuel John Daniel Robert and Thomas the said several sums of 50 l and shewed performance of all the other Articles And to this the Plaintiff demurred because that he did not shew that he paid 50 l to Nathaniel Morse and expresly covenanteth to pay to the said Nathaniel and the rest the said several Legacies or sums of 50 l Sed non allocatur for in the recital of the said Bequest by the Will there is nothing mentioned to have been bequeathed to Nathaniel and tho' he covenants to pay to Nathaniel as well as the rest yet it is legationes vel summas praed ' and there being no Legacy to Nathaniel and that appearing by the recital of the Will his Covenant shall not oblige the Defendant to pay him any thing Et sic Judicium ê“ Defendente Trethewy versus Ellesdon IN Replevin The Plaintiff declared of taking his Cattle in a place called the Barnclose in Branwell in the County of Cornwall The Defendant made Conusance as Bayliff of Elizabeth Cossen and shews that Nicholas Cossen was seised in Fee of a Messuage and Lands of which the place where was and is parcel and being so seised the 9th of September in the fourteenth year of the late King Charles the Second by his Deed indented produced in Court did grant to the said Elizabeth Cossen an annual Rent of 10 l to be issuing out of the Premisses to have to the said Elizabeth and her Assigns for term of her Life payable at the usual Feasts and in case it were arrear that it should be lawful for her to distrain by virtue whereof the said Elizabeth Cossen who is still living became seised of the Rent for her Life and avers that the usual Feasts are our Lady Midsummer Michaelmass and Christmass and for 40 l for four years Rent ending at Michaelmass 1688. the Defendant took the said Cattle as a Distress for the arreat of Rent c. The Plaintiff demanded Oyer of the Indenture which was read containing as followeth viz. This Indenture made the 29th day of September c. between Nicholas Cossen c. of the one part and Elizabeth Cossen c. and Nicholas Cossen the younger Son of the said Elizabeth of the other part of witnesseth That whereas the said Elizabeth Cossen hath given and surrendred into the hands of the said Nicholas Cossen one Indenture of Lease of an Annuity dated the 15th of March 1657. of ten pounds yearly going out of all that his Barton and Demesn called Melder for a term yet to come as in and by the said Indenture of Lease more fully and at large appeareth hath Given Granted and Confirmed and in and by these Presents doth Give Grant and Confirm unto the said Elizabeth Cossen her Heirs and Assigns by these Presents one Annuity or Yearly Rent of ten pounds to be issuing and going out of all that his Barton c. to Have Receive and take yearly the said Annuity to the said Elizabeth Cossen and Nicholas Cossen the younger and the Survivor and Survivors of them at the usual Feasts in the Year by equal Portions and if it shall happen the said Yearly Rent to be behind after any of the said Feasts that then it shall and may be lawful to and for the said Elizabeth during her Natural Life and so the said Nicholas Cossen the younger after her Death to enter into the Premisses and distrain c. In Witness whereof
and the Preferment of Her in Marriage and other good and valuable Considerations Give Grant Bargain and Sell Alien Enfeoff and Confirm unto the said Jane and her Heirs the said Lands And in the said Deed there was a Covenant that after due execution c. the said Jane should quietly enjoy and also a clause of warranty and the Iury found that there was no other Consideration than what was expressed in the Deed ut supra this Deed could not enure as a Bargain and Sale but it was adjudged that it should work as a Covenant to stand seised and Watts and Dix's Case was also cited Sty 188 204 where Rolls said if Lands are passed for Mony only the Deed ought to be enrolled but if for Mony and Natural Affection the Land will pass without Enrollment The Court here in the Principal Case inclined that this Grant would work as a Covenant to stand seised But Pollexfen Chief Justice was of Opinion that it ought to have been so pleaded and not to use the words concessit assign transposuit which is to plead it as a Grant at Common Law Powell and Ventris did conceive that it was pleaded sufficiently in regard it was said that by virtue of the Deed and Statute of Vses he became seised but leave was given by the Court to amend the Plea as the Defendant should see cause Bland versus Haselrig alios QUarto Jacobi Secundi the Case was an Assumpsit was brought against four who pleaded non Assumpsit infra sex annos and the Verdict was that one of the Defendants did assume infra sex annos and the other non assumpsit And it was moved that no Iudgment could be given against the Defendant upon whom the Verdict was found for this is an Indeb assump for Goods sold and 't is an intire contract and they must all be found to promise or else 't is against the Plaintiff Torts are in their nature several so one Defendant may be found guilty and the other not guilty but 't is not so in Actions grounded upon Contract Pollexfen Chief Justice Powel and Rokeby were of Opinion in this Case That the Plaintiff could not have Iudgment Ventris inclined to the contrary he admitted if an Indebitat ' assumpsit be brought against four and they plead non assumps and found that one of them assumed this is against the Plaintiff for he fails in his Action But in the case at Bar it may be taken that they did all promise at first and that one of them only renewed the promise within six years The plea of non assumpsit infra sex annos implies a promise at first and if one should renew his promise within six years 't is reason it should bind him and the Plaintiff must sue them all or else he will vary from the Original Contract But the Chief Justice seemed to be of an Opinion that if the promise were renewed within the six years yet if not upon a new Consideration it should not bind and if there were a new Consideration the Action will lie against him that promised alone Sed Quaere for the common Practice is upon a Plea of the Statute of Limitations to prove only a renewing the Promise without any further Consideration but a bare owning the Debt is not taken to be sufficient Quaere if the first Consideration upon repeating the Promise within six years be not enough to raise a new Cause of Action Iudgment was given for the Defendant Westby's Case WEstby brought an Action by Original and the Instructions to Cursitor for drawing of the Writ were Westby but the Writ was Westly and so all the Proceedings Afterwards the Court upon a motion ordered the Cursitor to attend who satisfied the Court that the Instructions were right and so they ordered the Original to be amended in Court and this without any application to the Chancery or Order from thence and they amended all the proceedings after Termino Paschae Anno 2 Willielmi Wariae In Communi Banco Ellis versus Yates IN an Action of Trespass the Writ was brought and so recited Quare clausum fregit herbam ibid ' crescent ' conculcavit consumpsit averia fugavit and the Declaration was Quare clausum herbam ibid ' crescent ' conculcavit consumpsit bidentes c. fugavit alia enormia c. Vpon Not guilty pleaded a Verdict was found for the Plaintiff It was moved in Arrest of Iudgment that fregit was omitted in the Declaration so one of the Trespasses contained in the Writ viz. the Clausum fregit was not mentioned in the Declaration and if the Writ contains more than is Declared for this is a Variance not aided by the Verdict 1 Cro. 329. Haselop and Chaplin where a Replevin was de averiis and declares only of an Horse and for that the Judgment was Reversed in a Writ of Error So where the Writ was Quare clausum fregit and the Declaration Quare clausum 1 Cro. 185. Edwards and Watkin Pollexfen Chief Justice and Rokeby were of that Opinion that Judgment should be arrested Ventris contra Powel being absent because the treading and consuming of the Grass necessarily implied a breach of the Close for there could not be an Entry without a Breach So the Declaration by necessary Intendment comprehended all that was in the Writ and to support the Verdict it was reasonable to intend no other breach of the Close than by a bare Entry But the other two said That there might be given in Evidence a breach of a Gate or Hedge and Damages might be given for that and then there was no ground for such Damage set forth in the Declaration And by the Opinion of the Chief Justice and Rokeby the Judgment was stayed Vid. Keilway 187. B. finding in a Verdict upon a Writ of Forcible Entry that the Defendant expulit disseisivit c. this implies it was Vi armis and yet that is the very point of the Action The Warden of the Fleet 's Case A Motion was made by the Warden of the Fleet for a Writ of Priviledge sitting the Parliament alledging that he was obliged to attend the House of Lords and therefore ought to be priviledged from Suits and divers Presidents were shewn where Writs of the like nature were granted to the Warden of the Fleet upon Motion one whereof was 2 Car. 1. and divers since that time some whereof appeared to be upon hearing of Counsel on both sides And the Court were at first inclined to grant him the like Writ but it being afterwards made appear to the Court that he was sued upon Escapes and the Court considering the great inconvenience that would ensue thereupon and being of Opinion that it was in their Discretion whether they would grant such Writ upon Motion or no. For they could not Iudicially take notice of this Priviledge of Parliament and therefore in case he had such Priviledge the Court said he might plead it
and then sets forth that the Defendant had assigned all her Term in the said piece of Ground and Stables to one Tomlinson by vertue whereof he entred and after died possessed of the said piece of Ground and Stables and that Mary his Wife afterwards became possessed thereof as his Administratrix and did after Intermarry with one Barker who became likewise possessed and the said Barker and his Wife non permiserunt the Plaintiff to make a Drain to carry the wast Water from the Houses demised as aforesaid to the Plaintiff thorough the said piece of Ground and Stables assigned as aforesaid into the said main Shore but did refuse and do yet refuse the Plaintiff to make the same tho' requested thereunto such a day and year c. so the Defendant had broken her Covenant ad damnum Cent ' librarum The Defendant pleaded That the aforesaid Passage belonging to the said demised Premisses is Scituate in the Parish of Saint James aforesaid and leads from the Houses demised to the Plaintiff as aforesaid to Six Bell Yard aforesaid and that a Drain to carry off the wast Water from the said Houses to the said main Shore in Six Bell Yard in and thorough the said Passage might have béen and still may be conveniently made and that the Defendant did permit the Plaintiff to make a Drain in and thorough the said Passage for the carrying off c. and if the Plaintiff would he might have made it accordingly but he refused to do it and demands Iudgment of the Action To this the Plaintiff Demurred And it was Argued at the Bar that this Plea was insufficient for when the Defendant Covenanted that the Plaintiff should be permitted to make a Drain from the demised Premisses to Six-Bell-Yard he was at election to make it through any part of the Defendants Ground that lay between tho' the Ground were built upon and so might be very inconvenient for the Defendant and tho' there might be another place to make the Drain in And cited the Cases of Election as where a Feoffment is made of 20 Acres of such a Wood c. the Feoffee may take which 20 he will in any part of the Wood. The Court were rather inclined that in this Covenant there should not be Election to make the Drain through the parties Stables or Buildings in case there were other places proper and convenient to make the Drain in for every Agreement must have some reasonable Construction that may be consistent with the Intent of the parties But no Opinion was delivered as to this Point because there were divers Exceptions taken to the Declaration some of which were fatal First There is no certain place laid for the Houses demised which are said to be lying and being in the Parish aforesaid whereas there are two named before viz. St. Margarets and St. James's so it was altogether uncertain Secondly The Breach is eo quod they did not permit the Defendant which is no positive Affirmation Thirdly The Covenant is That the Defendant her Executors Administrators and Assigns shall permit and the Breach is laid in the Assignees not permitting and it appears by the pleading that this Assignment was made to Thomlinson divers years before the Demise to the Plaintiff and this Covenant cannot be extended only to the Assignees of the Defendant after the Demise made Fourthly Here 't is said quod non permiserunt but no special Disturbance which ought to have been particularly set forth for the Court to judge of it The Court held all these Exceptions but the second to be fatal especially for that the Disturbance was laid to be by an Assignee which came in before the Demise but as to the pleading the Breach eo quod they rather inclined that it was good And so the Opinion of the Court seemeth to be in the Cutlers and Southern's Case in the 1 Sand. 116. But for the other Exceptions Judgment was given against the Plaintiff Priscella VVeb versus Moore Wiltes ' ss FRANCISCUS MOORE nuper de paroch ' de Wootton Basset in Com' praedict ' Armig ' Attach ' fuit ad respondend ' Priscillae VVeb Vid ' de placito Transgr ' super Casum c. Indebitat ' Assumpsit the Defendant pleads an Outlawry in Bar. Et unde eadem Priscilla per Johannem VVilkyns Attorn ' suum queritur quod cum praedict ' Franciscus primo die Martij anno regni domini Jacobi secundi nuper Regis Angl ' secundo apud Wootton Basset indebitat ' fuisset eidem Priscillae in summa quinquaginta solidorum legalis monet ' Indeb ' Assumps for a Runlet of Wine Angliae pro cado minori vocat ' a Runlet Vini albi Anglicè White-wine triginta sex ampullis vitreis Anglicè Glass Bottles ipsius Priscillae per ipsum Francisum de eadem Priscella ante tempus illud empt ' habit ' recept ' Et sic inde indebitat ' existen ' praedict ' Franciscus postea scilicet eodem primo die Marcij anno regni dicti nuper Regis secundo supradicto apud Wootton Basset praedict ' in consideracone inde super se assumpsit eidem Priscillae adtunc ibidem fidelit ' promisit quod ipse praedict ' Franciscus praed ' quinquaginta solidos eidem Priscillae cum inde postea requisit ' fuisset bene fidelit ' solvere contentare vellet Cumque etiam praedict ' Another Indebitatus as well for Meat Drink Wine Brandy and Tobacco as for Horse-meat Franciscus postea scilicet decimo die Januarij anno regni dicti nuper Regis tercio apud Wootton Basset praed ' indebitat ' fuisset eidem Priscillae in summa octo librar ' similis legalis monet ' Angl ' tam pro esculent ' poculent ' vino vino forti Anglicè Brandy nicotiano foco Anglicè Fire ipsius Priscillae pro eodem Francisco quam pro feno pabulo ipsius Priscillae pro quodm̄ equo ipsius Francisci per ipsam Priscillam ad speciales instanc ' tequisiconem ipsius Francisci ad seperal ' tempora antetunc invent ' provis ' Et sic inde indebitat ' existen ' praed ' Fransciscus postea scilicet eodem decimo die Januarij anno tertio supradicto apud Wootton Basset praedict ' in consideracone inde super se assumpsit praefataeque Priscillae adtunc ibidem fidelit ' promisit quod ipse praedict ' Franciscus easdem octo libras eidem Priscellae cum inde postea requisit ' esset bene fidelit ' A quantum meruit for Meat Drink Wine Brandy and Horse-meat found and provided by the Plaintiff as an Inn-keeper solvere contentare vellet Cumque etiam praedictus Franciscus eodem decimo die Januarij anno regni dicti nuper Regis tertio supradicto apud Wootton Basset praedict ' in consideracone quod praedict ' Priscilla communis Hospitatrix tunc existen ' ad speciales instanc '