in themselves do purport And if it had been good for the matter yet it is not good for the form for want of a Traverse for without the Traverse the plea is not answered in that case which is laid to the charge of the Defendant But Popham and Clench held strongly to the contrary and that this Bar is good in matter and as the case is cannot be otherwise and that the form also is good enough and yet the two Affirmatives cannot make a good Issue but in case of two Affirmatives a Traverse shall not be but where the Affiâ—matives do not agree in one As if the Defendant in Trespasse Intitles himself by the Feoffment of a stranger and the Plaintiff reply and maintain that the same stranger did enfeoff him this cannot make a good Issue without a Traverse of the Feoffment alledged to be made to the Defendant But in the same case if the Plaintiff saith that true it is that the stranger enfeoffed the Defend an t but this was to the use of the Plaintiff and his Heirs there no Traverse shall be on the Plaintiffs part because as to the matter of the Feoffment it agrees with the Defendant in which case it shall not take any Traverse but there the Traverse shall come on the Defendants part to maintain the Feoffment to his own use Absque hoc that the Feoffment was to the use of the Plaintiff for now that which the Defendant saith albeit it be in the Affirmative yet it is a Traverse to that which the Plaintiff hath alledged and therfore he needs not traverse the plea And so a diversity where the Affirmative is to traverse that which is alledged by the other party and where not for in one case the conclusion shall be with a Traverse and in the other not Then in this case when the Plaintiff alledged that the Defendant spake these words which prima facie shall be intended to be spoken in this sence as the Plaintiff hath alledged although no Innuendo had been in the case for if it shall not be so intended without the Innuendo the Innuendo will not help it yet when the Defendant hath declared the circumstance wherupon these words were spoken and then the speaking of them therupon now he hath confessed the very words themselves to be spoken but upon the circumstance discovered to be in another sence then prima facie they are to be taken and therfore he shall not take a Traverse for he acknowledgeth the very words but not the intendment which the very Law prima facie presumes upon the words and therfore shall not take a Traverse for this intendment of Law being answered by matter expresly in the plea shall never be traversed as in the case put of a Feoffment prima facie it shal be intended to be to the use of the Feoffee yet when the other party maintains that this Feoffment was to his use he shall not take a Traverse to that which the Law intends and presumes And if a man upon speech had with a Hunter saith That he hath murthered all the Hares within 7. miles of his house and another answer and say he is a Murtherer indeed wherupon the Hunter brings an Action upon the Case against him for saying that the Plaintiff was a murtherer the Action will well lye Yet when the other shall discover the communication wherupon the words were spoken this shall be a good Bar without a Traverse yet if it be true that there were no such communication between the parties as is mentioned in the Bar the Plaintiff then hath good cause of Action and therfâ—re he may well say De injuria sua propria absque tali causa and this being sound it shall be against the Defendant So upon speech of a Butcher who had killed a 1000. Oxen in a year and one hearing it will say that he is a notable Murtherer this upon the matter disclosed is not actionable And it shall be mischievous by a Traverse or by pleading generally not guilty to put such speciall matter in the mouth of Lay-people to give their Verdict upon being ignorant and therfore easie to be miscarried in theâ—r judgment and therfore it shall be the rather admitted by speciall pleading to be put to the judgment of the barred Judges then into the mouths of lay Gents And here when Fletcher speaking of the order to be taken by the Councell upon the Petition said that the Earl would obey their order to which the Defendant answered that he knew not what the Earl would do the said Fletcher said therupon that he was a Subject and what was the intent of Fletcher in saying so no other but that because he was a Subject therfore he ought to obey and if it be so to be understood as of necessity it ought or else they were not spoken by Fletcher to any purpose which cannot be intended then shall the words following being spoken therupon by the Defendant be taken to be spoken in answer to the matter of the Speeches spoken by the said Fletcher and this is that he was sorry and it was his grief that he must be so subject as to be bound therby to obey their Order as if a man saith to another that he was sorry that he was so subject that he must obey a Iudgment against him in the Queens Court this is no cause of Action for this tends but to his subjection to the Law or good order or the like which do not give cause of Action As if one saith of another that he is of the Temple who alwaies rebell against the Governours of the said house then saith another to him Will you then say and maintain that he is a Rebell yes sayes one of the other I will do so If an Action be brought for the last words the Action will lye but if the other discover the circumstances of the Speech in the Bar wherupon it was spoken the Action will not lye And this the Defendant may well do without traversing that which is alledged because he acknowledgeth it although in another sense then the Law Prima Facie imports upon the Declaration And if in Speech between two one of them saith of a stranger that he hath treacherously betrayed his Friend in revealing all his secrets and councell wherupon the other then saith that he hath done as a Traytor therin and the other saith to him again he is a Traytor and he answering to it saith true he is a Traytor Now if the stranger brings an Action of the Case against him for saying of these last words Prima Facie it imports good cause of Action without any Innuendo as that he intended therby that he was a Traytor to the Queen because the words in common intendment have such a sence yet upon the matter disclosed by way of Bar with the circumstances how they were spoken the Plaintiff shall be barred if he cannot maintain that they were spoken without such a cause which
given for the Defendant The same Term in the same Court. Laurking and Wildes Case THe Rector of the Church of livelled in the spirituall Court for the Tithes of a riding Nag where the case was That a man let his Land reserving the running of a Horse at some time when he had occasion Tithes for a riding Nag to use him there The Defendant shewed this matter in the Court by his Counsell and prayed a Prohibition and avers that for the same Land in which the Horse went he paid Tithes And by the Court nigh London a man will take a 100. or 200. Horses to Grasse now he shall pay Tithes for them or otherwise the parson shall be defeated But in this case if the Defendant alledge and prove that it was a Nag for labour and not for profit a Prohibition lies The same Term in the same Court. Havergall versus Hare IN an Ejectione firmae brought by Havergal against Hare the Case was thus Afterwards fol 55. A Rent of 20 l. per annum was granted out of Green acre to one and his Heirs to be paid at Michaelmas and the Annunciation of our Lady by equall portions and the Grantor covenants that if the Rent of 20 l. be arrear by the space of twenty daies that the Grantee may distâ—ain and that if there be not sufficient distresse upon the Land or iâ— there be a Rescous Replevin or Pound-breach that then it shall be lawfull for the Grantee and his Heirs to enter and retain the Land to them and their Heirs untill the 20 l. be paid 10 l. for one half years Rent was in arrear and for it an entry was made Mountague chief Iustice and Doderidge Iustice there can be no entry made when 10 l. only is behind for the words of the Deed are that if the Rent of 20 l. be behind that the Grantee and his Heirs may enter and if he shall enter now he shall retain the Land for ever for the 20 l. shall never be paid Crook and Haughton Iustices contrary for if 10 l. be arrear the Rent of 20 l. is arrear for Haughton said In an Assise of Rent of 40 l. where part is arrear yet he ought to bring his Assise for the whole Rent of 40 l. for the Writ ought to agree with the Deed. Doderidge agreed with him in the case of an Assise but not in the principall point And for the second point it was agreed by them all that upon the entry of the Grantee he shall have a Fee-simple determinable admitting the entry for the 10 l. to be good The same Term in the same Court and it is entred 14 Jac. Rot. 1484. Robinson versus Walter RObinson brought an Action of Trover and Conversion against Walter and upon the whole matter the case appeared to be this A Stranger took the horse of the Plaintiff and sent him to a common Inn and there he remained for the space of half a year at which time the Plaintiff had notice where his Horse was and therupon he demanded him of the Inn-keeper who answered that a person unknown left the Horse with him and said that he would not deliver the Hoâ—se to the Plaintiff unlesse he would pay for his meat which came to 3 l. 10 s. for all the time and also would prove that it was his Horse upon which the Plaintiff demurred in An Inn-keeper may detain a Horse untill he be satisfied for meat albeit he be left by a stranger Law And it was resolved by Mountague chief Iustice Crook and Doderidge Iustices Haughton Iustice dissenting that the Defendants plea was good for the Inn-keeper was compellable to keep the Horse and not bound at his peril to take notice of the Ownder of the Horse And by the custom of Lond. if a horse be brought to a common Inn wher he hath as it is commonly said eaten out his head it is lawfull for the Inn-keeper to sell him which case of the custom implies this case And there is a difference where the Law compels a man to do a thing and where not As if the Lievtenant of the Tower brings an Action of debt for Dyet against one who was his Prisoner in this case the Defendant cannot wage his Law because the Law compels the Lievtenant to give Victuals to his Prisoner otherwise if another man brings an Action of debt for Dyet and in the case at the Bar the Inn-keeper was compellable And Doderidge said that if the Law were as the Plaintiff would have it it were a pretty trick for one who wants a keeping for his Horse And Mich. 6 â—ac in the Kings Bench between Harlo and Ward the like was resolved as was cited by Barkesdels of Counsell with the Defendant Mich. 14. Jac. In the Kings Bench. Rawlinson versus Green A Copyholder surrendred out of Court according to the custom of the Mannor which at the next Court was presented and entry therof made by the Steward Scilicet Compertum est per homagium c. but no admittance Afterwards Cestuy que use surrenders before admittance and the first Copyholder surrenders to the Plaintiff And in this case there were two questions 1. Whether he may surrender before admittance 2. Who shall have the Land whether the first Copyholder or the Lord Haughton Iustice held that he could not surrender before admittance and the entry of the surrender doth not make an admittance for this being the A â—urâ—ender of Copyhold cannot surrender before admittance sole act of the Steward shall not bind the Lord and it is not like to the usuall foâ—m of an admittance for that is Dat Domino de fine fecit fiâ—elitatem admissus est inde tenens Doderidge Iustice agreed and said that in Hare and Brickleys case the admittance of a Copyholder was compared to the induction to a Benefice which gives the possession Hillary 14. Jac. In the Kings Bench. Sir John Pools Case Three Executors brought an Action of Debt and one only declared and they were ready for a triall in the Country and now it was moved that the Declaration might be amended and the names of the other Executors incerted but per Curiam this cannot be without the assent of the parties Pasch 15. Iac. In the Kings Bench. Cooper versus Smiths AN Action upon the Case was brought for these words viz Waterman Action for these words Thou hast killed thy Masteâ—s Cook and thou Innuende the Plaintiff hast killed thy Masters Cook Innuende c. and I will bring thee in question for thy life And after Verdict for the Plaintiff it was moved in Arrest of Iudgment by the Counsell of the Defendant that the words were not actionable for the incertainty inasmuch as it doth not appear who was his Master nor that his Master had a Cook Mountague chief Iustice said that the words were actionable and albeit Inâ—uendo cannot maâ—e a thing that is uncertain certain an Innuendo cannot make a
thing that is uncertain certain but shall serve as a Predict yet the words import that he had a Master and that his Master had a Cook to which all the Court agreed and Iudgment was given for the Plaintiff And another Action was brought for these words Scil. Thou hast sacrificed Thou hast sacrificed thy child to the Devill thy Child to the Devill and adjudged that the words were actionable Mich. 15. Iac. In the Kings Bench. Lee versus Brown IN an Ejectione firmae brought by Lee against Brown the Case was this Whether copyhold Lands may be intailed Tenant in Tail of Copyhâ—ld Land surrendred the same into the hands of the Lord to the use of I. S. wherupon two points did arise 1. Whether Copyhold Land be within the Statute of Donis conditionalibus so that iâ— may be intailed 2. Whether the Intail may be cuâ— off by the surrender Doderidge Iustice said as to the first point that it hath been a great doubt whether it may be intailed but the common and better opinion was that by the same Statute co-operating with the custom it may be intailed and with this agrees Heydons case in my Lord Cokes 3. Report and so was the opinion An Intail of copyhold lâ—nd nâ—t to be cut off by â—urrender unlesse by speciall custom of the Court. And for the second point their opinion also was that it could not be cut off by surrender unlesse it were by speciall custom and they directed the Iury accordingly And it was said to maintain this custom it ought to be shewn that a Formedon had been brought upon such a Surrender and Iudgment given that it doth not lye yet it was agreed that it was a strong proof of the custom that they to whose use such Surrenders had been made had enjoyed the Land against the Issues in Tail And it was said by the Counsell of the Defendant that there was a Verdict for them before in the same case which they could prove by witnesses but the Court would not allow such a proof because it was matter of Record which ought to be shewn forth In the same Term in the Common Pleas. May versus Kett. AN Action upon the Case was brought for these words viz. Thou hast Words Thou hast stoln my Corn out of my Earn stoln my Corn out of my Barn And it was moved in Arrest of Iuâ—gment because he had not said how much he had stoln and perhaps it was of small value and yet it was adjudged that the Action would lye for it is at least petit Larceny But if he had said that he had stoln his Corn generally it had not been actionable for it might have been growing and then it had been but a Trespasse The same Term in the Star Chamber Riman versus Bickley and others IOhn Riman exhibited a Bill in the Star Chamber against Thomas Bickley and Anne his Wife Dr. Thorn Mr Goulding and others Defendants the said Anne was first married to Devenish Riman the Plaintiffs Son and between them were many â—ars and disâ—greemâ—nts and the said Devenish was much given to drinking and other Vices and divers times did beat and abuse his Wife and was also jealous of the saiâ— Thomas Bickley and his Wife being at a certain time at Supper with Dr. Thorn Goulding and others spake such words as these having communication thâ—t her Husband did beat and abuse her to wit That she heard that his Father had that quality and being once whipt for it was the better ever after and that if she thought it would do her Husband any goâ—d she would willingly bestow 40 s. on some body to give him a whipping wherupon Gâ—ulding said that he would give him a Medâ—cine for his Mâ—lâ—dy and within two daies after he came in the night in womâ—ns apparrell with a Weapon under his Cloak and with a Rod and wenâ— into the House and Chamber of the said Devenish and would have whipped him and in striving together there was some hurt done on either side but Gâ—ulding not being able to effect his purpose fled and this was conceived to be by the procurement of Anne his wife And not long after Devenish fell sick and sent to his said wife for certain necessaries which she would not send him and presently after Devenish died and she refused to come to his buriall And although it were much disliked that Devenish should abuse his Wife in such uncivill manner as to strike and beat her and as Coke late chief Iustice said it is not lawfull by the Act Military for one man to strike another in the presence of Ladies yet it was resolved by the whole Court that it was a great misde meanor in the Wife and uncivill and undutifull carriage in her to do so to her Husband as they use to do to Children or fools to wit to give them the Whip and so to disgrace and take away the good name of her Husband which viz. A mans good name and his Childrens are the two things which make a man live to Posterity as was said by Sir Francis Bacon Lord keeper and the Court fiâ—ed the Wife 500 l. and it was said that Thomaâ— Bickley her noâ— Husband well deserved to pay this Fine because he was too familiar with her in the time of his Predecessor and as the Bishop of London said Devenish Rimon lay upon her hands and Thomas Bickley upon â—eâ— heart And to aggravate this matter a Letter was shown whiâ—h Devenish Rimon wrote to his Wife in which he called her Whoor and told her somwhat roundly of her faults and she wrote back to him in the Margeâ—t that he lyed and wished him to get a better Scribe for his next Lâ—â—ter for he was a Fool that wrote that wherin she called him Fool by craft And Goldings offence was accâ—vnted the greater because he was a Minister so that he was fined 500 l. also And Coke said that the course of this Court was that if any were fined who is not able to pay it Respondeat superior he that is the principall and chief agent therin must answer it for otherwise poor men might be made Instruments of great mischief who are not able to answer and the greater Offenders shall escape which the Lord Keeper confirmed And as to Doctor Thorn he was acquitted by all And the Bishop of London said that they had thought to have troad upon a Thorn and they gat a Thorn in their foot And by Coke if Devenish Rimon had died upon it it had been capitall in the Wife who procured it for it was an unlawfull Act. The same Term in the Kings Bench. Wescot versus Cotton THe case was this An Infant Executor upon an Action brought against Where an Infant Executor may declare by Attorney but not defend by Attorney but by Guardian him appeared by Attorney where he ought to appear by Guardian and it was resolved by the Court that this was Error for this
grants over the Reversion the first Lessee dies and the Grantee of the Reversion brings a Writ of Covenant against his Executors In which case there were two points 1. Whether these words And the said Lessee his Executors Administrators and Assigns shall from time to time c. make a Covenant or Whether Covenant lies against the Executor of a Lessee after assignment no. 2. Whether as this case is it will lye against the Executors of the Lessee As to the first point it was agreed that it is a Covenant for being by Indenture it is the words of both parties and it is more strong being in the case of the Queen Haughton laid that 25 H. 8. Tit. Covenant Covenant will lye against a Lessee after assignment but Debt lyeth not for Rent after the Lessee hath accepted the Assignee for his Tenant and therfore it seems that by the expresse words of the Covenant that the Action lies Doderidge Iustice contra for between the Queen and the Lessee there is privity of Contract and also of Estate so that the Queen her Heirs and Successors might have had an action against the Lessee or his Executors upon the privity of Contract and where the Lessee â—ssigns over the privity of Contract remains but the privity of Estate is gone to the Assignee and now when the Queen grants over the Reversion the privity of Contract is utterly determined wherby the Action of Covenant cannot be maintained against the first Lessee or his Executors who are more remote to which Mountague chief Iustice agreed see 2 H. 4. 6. 6. H. 4. 1. and Co. lib. 3. Walkers case and the Iudgments there cited Et adjournator The same Term in the same Court. Bennet versus Westbeck THe Case was thus Tenant for life Remainder for life Reversion in Fee he in Remainder for life gives his Deed of Demise with the assent of the first Tenant for life upon the Land to a stranger in the absence of the Lessor and said that he surrendred to him in Reversion And it was said that this Surrender being without Deed was not good to him who was absent and to confirm it the case was put out of 27 H. 8. Where Mountague chief Iustice said that if a Feoffment be made to four and Livery is made to one in the absence of the other but in name of all if it be by Deed this shall enure to all but if it be without Deed then only to him to whom the Livery was made So here this Surrender doth not enure to him in the Reversion being absent Whether Tenant for life in Remainder may surrender without Deed. But Non aliocatur for the sole point now in question was whether he in Remainder for life can surrender without Deed and as to it this Rule was taken viz. That that which cannot commence without Deed cannot be granted without Deed as a Rent Reversion common Advowson c. as 19 H. 6. 33. 14 H 7. 3. 1 2. Ph. Mar. 110. 22. Ass Pl. 16. But in this case this took effect by Livery and not by Deed and therfore might be determined without Deed. Mountague and Haughton agreed that it might be surrendred without Deed because it had its beginning without Deed but it could not be granted over without Deed. Doderidge Iustice said that it could not be surrendred without Deed but he said that Tenant in possession may or Tenant for life and he in Remainder together may surrender to him in the Reversion but this shall innure as two severall Surrenders first of him in Remainder to the Tenant for life and then by the Tenant for life to him in the Reversion Crook Iustice agreed with Doderidge for the Estate of him in Possession is an Estoppell to the Surrender so that it could not be surrendred without Deed. The same Term in the same Court. Thurman versus Cooper IN an Ejectione firmae brought by John Thurman against William Cooper upon the whole matter the case was thus Lands were given to a man and woman who afterwards inter-marry and to their Heirs and Assigns Habendum to them and to the Heirs of their two bodies engendered the remainder to them and the Survivor of them with warranty to them and their Heirs and Assigns for ever And the question was what Estate this shall be whether an Estate-tail or Fee-simple or a Fee-tail with a simple Expectant And it was said that this shall be an Estate-tail only for the Habendum qualifies the generall words precedent and with this agrees Perkins 35. b. and Co. lib. 8. 154. b. Althams case But it was answered and resolved by the whole Court that this is a Fee-tail with a Fee-simple expectant and they observed these Rules 1. That every Deed shall be taken most strong against him that made it 2. That every Deed shall be construed according to the intent of the maker so that all the parts may be effectuall if they can stand together with the Rules of Law 40 E. 3. 5 Percy saith that it is a Fee-simple 21 H. 6. 7. that it is an Estate-tail with a Fee-simple expectant Dyer 160. and Plow Paramore and Yardleys case the Law shall make an order of words where there is no order put by the parties and the words after the Remainder limited are Tenendum de Capitalibus Dominis feodi c. and therfore it ought to be a Fee-simple for if it were a Fee-tail he should hold of the Donor as it is in Co. lib. 6. Sir John Molins case and other Books And although the Warranty cannot inlarge an Estate yet this expresses his intent to passe a Fee-simple and the Law shall make a construction that the Fee-tail shall precede upon which the Fee-simple shall be expectant according to that which is before said in Paramore and Yardleys case Doderidge If the Habendum had been to a stranger the Premisses had been but a Tail as 7 H. 4. for otherwise the Habendum shall be void But if Land be given to one and his Heirs viz. In Tail or if the said Donce dye without Issue of his body this had been but an Estate-tail only because it immediatly checks and confirms the Premisses to which Haughton agreed Et adjournator The same Term in the same Court. Powels Case POwel an Vtter-Barister of the Temple and also Town-Clark of Plimoth brought an Action upon the Case against for these Words That he was a Puritan Knave a precise Knave a bribing Knave a corrupted Knave c. words The Defendant supposing that the Plaintiff had wronged him in the Court of Plimoth said that he was a Puritan Knave a precise Knave a bribing Knave a corrupted Knave and that he would make him answer for that which he had done in another place And after Verdict for the Plaintiff it was now moved in Arrest of Iudgment that the words were not actionable because he doth not scandalize him in his Profession by which he acquires his
Living And Mountague chief Iustice said that this word Bribing doth not import that he took a Bribe and therfore this word and all the other words but corrupted Knave are idle but these words impeacheth him in his Office for it hath reference to that and therfore is actionable And Iudgment was given accordingly The same Term in the same Court Sir Baptist Hickes Case in the Star Chamber SIr Baptist Hickes having done divers Pions and Charitable Acts to wit had founded at Camden in Glocestershire an Hospitall for twelve poor and impotent men and women and had made in the same Town a new Bell tunable to others a new Pulpit and adorned it with a Cushion and Cloath and had bestowed cost on the Sessions House in Middlesex c. one Austin Garret a Copyholder of his Mannor of Camden out of private malice had framed and writ a malicious and invective Letter to him in which in an ironicall and deriding manner he said that the said Sir Baptist had done these charitable works as the proud Pharisee for vain-glory and oftentation and to have popular applause and further in approâ—rtous manner taxed him with divers other unlawfull Acts And it was resolved by the Court that for such private Letters an Action upon the case doth not lye at Common Law for he cannot prove his case to wit the publishing of it but because Where a private Letter is punishable as a Libell it tends to the breach of the Peace it is punishable in this Court and the rather in this case because it tends to a publike wrong for if it should be unpunished it would not only deter and discourage Sir Baptist from doing such good Acts but other men also who are well disposed in such cases and therfore as the Arch-bishop observed this was a wrong 1. To Piety in respect of the cost bestowed on the Church 2. To charity in regard of the Hospitall 3. To Iustice in consideration of the Session House and these things were the more commendable in Sir Baptist because he did them in his life time For as Mountague chief Iustice observed they who do such acts by their Will do shew that they have no will to do them for they cannot keep their Goods any longer And he only took a diversity where such a Letter concerns publike matter as they did or private in which case it is not punishable But the Lord Coke said that it was the opinion of the Iudges in the Lord Treasurers case when he was Attorney that such a private Letter was punishable in this Court and therupon he had instructions to exhibit an Information but the Lord Treasurer Jacens in extremis was content to pardon him and so it was resolved between Wooton and Edwards And Sir Francis Bacon Lord Chancellor said that the reason why such a private Letter shall be punished is because that it in a manner enforceth the party to whom the Letter is directed to publish it to his friends to have their advice and for fear that the other party would publish it so that this compulsary publication shall be deemed a publication in the Delinquent and in this case the party was fined at 500 l. The same Term in the same Court. Bernard versus Beale AN Action upon the case was brought for these words viz. That the Words That the Plaintiff had two Bastards 36. yeaâ—s since Plaintiff had two Bastards 36. years ago upon the report wherof he was in danger to have been divorced And it was resolved that for Defamation there was no remedy but in the Spirituall Court if he had no temporall lesse therby and therfore it is not sufficient to ground an Action to say that he was in danger to be diverced but thâ—t he was De facto divorced or that he wâ—s to have a presentment in marriage as it is in Anne Devies case Co. lib. 4. The same Term in the same Court. Brabin and Tradums Case THe Case was That the Church-wardens of D. had used time out of mind to dispose and order all the Seats of the Church wherupon they disposed of a Seat to one and the Ordinary granted the same Seat to another and his A Prohibition for a Seat in the Church Heirs and excommunicated all others who afterwards should sit in the Seat and a Prohibition was prayed and granted for this grant of a Seat to one and his Heirs is not good for the Seat doth not belong to the person but to the house for otherwise when the person goes out of the Town to dwell in another place yet he shall retain the Seat which is no reason and also it is no reason to excommunicate all others that should sit there for such great punishments should not be imposed upon such small Offenders an Excommunication being Traditio diabola In the same Term in the same Court. Fulcher versus Griffin THe Parson of D. covenanted with one of his Parishoners that he should A Parson covenant that his Parishoners shall pay no Tithes pay no Tithes for which the Parishoner covenanted to pay to the Parson an annuall summ of money and afterwards the Tithes not being paid the Parson sued him in the Court Christian and the other prayed a Prohibition And it was agreed that if no interest of Tithes passe but a bare Covenant then the party who is sued for the Tithes hath no remedy but a Writ of Covenant And the better opinion of the Court in this case was that this was a bare Covenant and that no interest in the Tithes passe The custody of a Copyholder that was a Lunatick was committed to Darcies case in the Common Pleas. I. S. and for Trespasse done upon his Land it was demanded of the Court in whose name J. S. should bring the action and their opinion was that it should be in the name of the Lunatick Trinity 16. Jac. In the Kings Bench. The Earl of Northumberlands Case THe Earl of Northumberland being seised of the Mannor of Thistleworth in which he had a Leet to be holden twice a year to wit within a moneth after Easter and a moneth after Michaelmas and Henry Devell being a Free-holder of the said Mannor erected a new Dove-coat at Heston within the Precinct of the said Leet which was presented at the Leet for a common Nusance for which Devell was amerced 40 s. and was commanded to remove it upon pain of 10 l. for the which a Distresse was taken by Henry Sanders and others as Bailiffs to the said Earl wherupon Devell brought a Replevin and they made Avowry and justified as Bayliffs and prescribed that they used to make by-laws to redresse common Nusances and also prescribed in the Distresse And the point in question was whether the new erecting of a Dove-coat by a Free-holder were a common Nusance punishable Whether the erecting of a Dove-coat be a common Nusance in the Leet And it was resolved by the whole Court upon
levied yet the Vse shall be directed by the originall Indenture and therfore 6 Rich. 2. A Feoffment is made to two and their Heirs and afterwards a Fine is levied upon it for further assurance to the use of them and the Heirs of one of them yet it shall go to the use of both for it shall be respected according to the original agreement where there are divers assurances for the perfecting of one and the same thing 16 E. 3. tit Age. A Daughter had a Seigniory by descent a Tenancy Escheats a Son is born he shall have the Land see Sharoes case in 4 Mar. Dyer and in Chadleighs case all looks to the originall agreement and therfore variance of time shall not hinder the originall agreement as 33. Ass the Servant inâ—ends to kill his Master and afterwards the Master puts him out of his Service and then he kills him this shall be petty Treason in the Servant 28 H. 6. Two are bound in a Bond at severall times and yet he shall declare against both as upon the first delivery 11 H. 7. it is adjudged that if a Deed be delivered by an Infant and afterwards it is again delivered when he comes of full age And see Mallories case Finches case and Borastons case Nunc tunc quando are a demonstration of the time and not of the matter and so they concluded that the Vse shall rise upon the first Indenture and not upon the Fine or Replevin brought but Doderidge and Haughton Iustices contra Trin. 17. Jac. In the Kings Bench. Silvesters Case JOhn Silvester promised to John B. that if he would marry his Daughter that he would give with her a Childs part and that at the time of his death he would give to her as much as to any of his Children excepting his eldest Son and afterwards he made his Executors and died I. B. brought an action upon the case against the Executors upon this Promise and shewed that the Executor had not given him a Childs part and that such a younger Son of the Testators had a 100 l. given him And it was resolved by the Court that the promise of a Childs part is altogether incertain but being so much as any of his Children had and then shewing that the younger Son had a 100 l. this was certain enough and therupon Iudgment was given for the Plaintiff The same Term in the same Court. Godfrey and Owen COrnelius Godfrey was Plaintiff in an action upon the case for Words He is a very Varlet and seeks to supâ—res his brothers Will c. words against Owen Defendant and the words were these to wit He is a very Varlet and seeks to suppresse his Broâ—hers Will he makes shew of Religion but he is a very Hypocrite And the words were spâ—ken of a Merchant to one who gave him much credite in his Trade Mountague chief Iustice said that the words which are actionable in such a case ought to touch the Plaintiff in his Profession which these do not do Et relata ad personam intelligi debent secundum conditionem personae for in the suppressing of his Brothers Will the case might be such that he might well do it for perhaps there may be an after Will made And for calling him Hypocrite lies not in the conusance of the Common Law for GOD only can judge of the heart of man and therfore these words do not touch the Plaintiff as he is a Merchant Doderidge Iustice Words ought to tend some way to the ruine of the party or otherwise they are not actionable and Iudgment was given Quod quere nil capiat per billam Mich. 17. Jac. In the Star Chamber Sis John Bingleys Case IN Sir John Bingleys case in the Star Chamber it was resolved by the two chief Iustices Mountague and Hobart and agreed by the Lord Verulam Lord Chancellor and Sir Edward Coke that if an Information be exhibited there which begins with divers particular misdemeanours and conclude in the generall that 1. The matter included in the generall charge ought to be Ejusdem generis 2. They ought to exceed the particulars expressed in number 3. They ought not to be greater or more capitall wherupon Mountague cited the Statute which speaks of Deans and other Spirituall persons upon which it hath been resolved that Bishops are not within it for they are of a higher degree and the principall reason of these rules was because that a man cannot possibly make a defence because he knews not what will be objected against him and upon this Sir John Bingley was discharged at this time for the most transcendent Offence that was objected against him to wit concerning Captain Baugh and other Pirates to whom the King of his grace and bounty had given 200 l. to make them Loyall Subjects But Sir John Bingley Colore officii had defrauded them of almost An Officer â— his own wrong all of it for the want wherof some of them died miserably and the rest became Pirates again But Sir John Bingley made many protestations of his innocence in this mâ—tter And it was holden also that one might be an Officer of his own wrong as their might be an Executor of his own wrong And this was Sir John Bingleys case for somthing in the information for he committed Extortion Colore officii The same Term in the Star Chamber THe Attorney-generall put in an Information against divers Dutch Merchants for buying and transporting of many great summs of Gold and Silver Bullion And it was said by the Court that divers Statutes had been made for redresse of this mischief as the Statute of 5 R. 2. the Offenders wherof ought to forfeit all they may and by another Statute in 17 E. 4. this Offence was made Felony to continue for seven years But the Court would not now punish them upon any Statute for it was an offence at common To carry Gold and Silver out of the Realm punishable at Common Law Law and therfore punishable in this Court And Sir Edward Coke said that if any be to be punisht upon a penal Statute it ought to be within two or three years at least after the offence committed for the Informer hath but a year to sue and the King two years for the most part The Statutes of 37 E. 3. and 5 E. 6. Prohibite the buying of Coin and that it is so at the Common Law see 21 E. 3. 60. and Plow 215. and not only he that buyes but he that sels also offends in it for it is a Prerogative only belonging to the King and it is his Coin and none can put a value upon it but himself which is a Flower of his Crown Hobart chief Iustice of the Common Pleas as one shall be punished for ingrossing any Commodity a Fortiori one shall be punished for ingrossing and buying of a great quantity of money all other Commodities being thereby ingrossed for money is the Mistresse of commerce Pecunia
est rerum omnium vendendarum mensura Bracton 117. 18 E. 3. Hollinghead 109. 50 E. 3. Rot. Pat. Memb. 7. And for transportation 17 E. 3. 19 E. 3. Rot. Pat. 24. De monetis non transportandis 19 R. 2. Rot. Pat. The Dutches of obtained licence to melt Coin to make Plate And divers of the Defendants were within the Kings generall pardon but in as much as they pleaded it in their Rejoynder and not in their answer as it ought to be the Court over-ruled their Plea so that they could have no advantage therby But in as much as they were strangers and not coâ—usant of our Laws and relyed only upon their Counsell the Court had consideration therof in their censure Hillary 17 Jac. In the Kings Bench. Serle versus Mander SErle brought an action upon the case against Mahder for these words to Words I arrest you upon Felony wit I arrest you upon Felony and after Verdict for the Plaintiff it was moved in Arrest of Iudgment by Richardson that the words were not actionable for he doth not say that the Plaintiff had committed Felony But it was rescived by the Court and so adjudged that the action lieth The same Term in the same Court A Iudgment was obtained against one of the Servants of the Lord Hay Iudgment against a Defendant when beyond Sea with an Ambassador reversed Viscount Doncaster when he was Ambassador in Bohemia and attending upon him there And this matter being disclosed to the Court by the Counsell of the Defendant they would not suffer the Plaintiff to have execution upon the said Iudgment but ordered the Plaintiff to declare De novo to which the Defendant should presently answer Memorand It was said to be against the course of the Court to have an Imparlance Imparlance before the Declaration entred The same Term in the same Court The King against Briggs A Quo warranto was brought by the King against Briggs for exercising A Subject cannot have a Forest of certain Priviledges who justified by virtue of a Forest granted to him And by Bridgeman this is the first Quo warranto which he knew that had been brought against any Subject for a Forest for a Subject cannot have a Forest but he may have a Chase which peradventure may passe under the name of a Forest And there are divers incidents to a Forest which a Subject cannot use nor have there ought to be a Iustice of a Forest which a Subject cannot have and such a Iustice ought to be a man of great Dignity 2. There ought to be Verderors who are Iudges also and by 34 E. 1. Ordinatio Forrestae ought to be by Wait but a Subject cannot award a Writ Also there are three Courts incident to a Forest 1. A Court of Attachments which may be without Verderors 2. The Swanimate Court 3. The Iustice seat and this appeareth in 1. E. 3. cap. 8. 21 E. 4. cap. 8 But by the Statute of 27 H. 8. cap. 7. There are some other incidents to a Forest 2. Admits that a Subject may have a Forest yet it fails in this case because he hath shown the exemplification and not the Letters Patents and see Co. lib. 5. Pains case that neither an exemplification or constat are pleadable at Common Law and Co. lib. 10. Dr. Leyfeilds case The same Term in the same Court Sir William Webb versus Paternoster THe case was this Sir William Plummer licensed Sir William Webb to lay his Hay upon the Land of the said Sir William Plummer untill he could conveniently sell it and then Sir William Plummer did make a Lease of the Land to Paternoster who put in his Cattell and they eat up the Hay And it was two years between the license and the putting in of the Cattell and yet Sir William Webb brought an action of Trespasse against Paternester for this Mountague chief Iustice 1. This is an Interest which chargeth the Land into whosoever hands it comes and Webb shall have a reasonable and convenient time to sell his Hay 2. The Lessee ought to give notice to Notice Sir William Webb of the Lease before he ought to put in his Cattell to which Haughton Iustice agreed in both points But Doderidge Iustice said that Sir William Webb had no certain time by this license yet he conceived that he ought to have notice But it was resolved that the Plaintiff had Convenient time a convenient time to wit two years for the removing of his Hay and therfore Iudgment was given against him But admit that there had not been a convenient time yet the Court was of opinion that the Plaintiff ought to have inclosed the Land at his perill for the preservation of his Hay And it was agreed that a license is countermandable although it be concerning A license whether for profit or pleasure countermandable profit or pleasure unlesse there be a certain time in the license as if I license one to dig Clay in my Land this is evocable and may be countermanded although it be in point of profit which is a stronger case then a license of pleasure see 13 H. 7. The Dutches of Suffolks case for a license The same Term in the same Court SIbill Westerman brought an action upon the case against Eversall and had Error Sibell for Isabell Iudgment and in the entry of the Iudgment she was named Isabell 1 Ass and 3. Ass A Fine was levied by Sibill when her name was Isabell and it was not good for it doth not appear to be the same party so in the case at the Bar And for this the Iudgment was reversed The same Term in the same Court JEne as Executor of brought an action upon the case against Chester An Infant chargable for necessary Apparrell because the Defendant made request to the Testator of the Plaintiff to buy for him certain silk Stuffs for Apparrel and to make him a Cloak the Defendant pleaded that he was within age and George Crook said that the Defendant should not be charged because it is not shewn that the Apparrell was for the Infant himself but he was over-ruled in this for it is sufficiently expressed to be for him And it was agreed by the Court that it ought to be shewn that it was Pro necessario vestitu and it ought to be suitable to his calling and as Doderidge said that there was a case adjudged in this Court between Stone Withipole that where Withipole had taken of Stone certain Stuffs for Apparrel being within age and afterwards he promised payment if he would forbeare him some time and the Assumpsit adjudged not good because he was not liable for the Debt at first for the reason aforesaid Trin. 17. Jac. In the Common Bench. Gilbert de Hoptons Case AN action upon the case was brought for those words viz. Thou art a Words Thou art a Theef and hast stoln my Furze Theef and hast stoln
my Furze And after Verdict for the Plaintiff it was moved in Arrest of Iudgment thâ—t these words were not actionable But it wâ—s said on the other side that to say thou art a Theef is actionable and the subsequent words are in the Copulative and enure as a confirmation of the precedent words But if it had been for Thou hast stoln my Furze this had been â—n explanation of the precedent words and therfore in that case the action would not have been And it was answered and resolved by the Court that the word and in some cases shall be taken as the word for and so it shall be in this case and therfore adjudged that the action lies Mich. 22. Jac. In the Star Chamber TWo men came Ore tenus into the Star Chamber for stealing of the Kings Deer and were fined a 100 l. a peece and three years Imprisonment unlesse it would please he King to release them sooner and before Fines in the Star Chamber for killing the Kings Deer they should be released of their Imprisonment to be bound to their good behaviour And it was observed by the Attorney-generall that the offence was the greater in regard that the King had but one darling pleasure and yet they would offend him in that And it was said by some of the Court that it was a great folly and madnesse in the Defendants to hazard themselves in such a manner for a thing of so small value as a Deer was The Lord President said that Mr. Attorney was the best Keeper the King had of his Parks in regard he brings the Offenders into this Court to be punished The Lord Keeper said that the Defendants in such a case being brought Ore tenus â—re not allowed to speak by their Counsell and yet these men have had their Counsell but it was Peters Counsellors meaning their sorrow and contrition at the Bar which much moved him so that if his vete might prevail he would set but 20 l. fine upon them In the same Term in the same Court THe Lord Morley and Sir Richard Mollineax being beyond Sea their Sollicitor in their names exhibited a scandalous Bill in the Star Chamber against the Bishop of Chichister and after their return this continued so for three years without any disclaiming therof by them and now the matter being questioned they said that it was not done with their privity But because they had not disclaimed the Fact before they were fined a 100 l. to the King and a 100 l. to the Bishop for Damages and the Bill was to be taken of the File The same Term in the same Court. Lewes Plaintiff versus Jeoffreys and others Defendants THe Plaintiffs Brother had been a Suitor to a woman which matter proceeded to a Contract and afterwards the Defendant Jeoffreys hapned to be a Suitor to her also wherupon being Rivalls they fell out and the Plaintiffs Brother called the Defendant Jackanapes which was taken very ill by the Defendant being a Iustice of Peace in the County of Worcester and the other being but a mean man in respect of him so that he told him that if he would meet him on Horse-back he would fight with him afterwards one of the Sons of the Defendant went to the said Brother being upon his own Land and gave him a mortall wound wherupon a friend on the behalf of the party wounded came to the Defendant being a Iustice of Peace and brought him a peece of his Skull to the end that his Son should be forth coming at the next Assises declaring to him the danger of death the man was in wherupon the Defendant took a Recognisance of 10 l. of his Son and of his sureties of 5 l. a peece to answer this at the next Assise And in the mean time the party died of the said wound and the Son did not appear at the Assises and the Iudges of Assise fined the Defendant 100 l. for taking such slender security for the appearance of his Son which was paid and yet notwithstanding the Defendant was fined 200 l. more for this offence and also 200 l. for his misdemeanor in his challenge albeit the Defendant A Challenge fined in the Star Chamber was of the age of 63 years and so it seems that he intended to fight with him But he being a Iustice of Peace who is Conservator pacis he did against his oath to do any thing which may tend to the breach of the Peace And for the other matter it was said by the Court that the Defendant being Father to the offendor it had been better for him to have referred this matter to another Iustice of Peace or at least to have had the assistance of another And the party being in such great danger of death his son was not bailable Hillary 1. Car. In the Kings Bench. Bowyer versus Rivet THe case was thus Sir William Bowyer 12. Jac. recovered against Sir Thomas Rivet in an Action of debt Sir William made his wife his Exceutrix and died the wife made Bowyer her Executor and died then Sir Thomas Rivet died Bowyer brought a Scire facias to have execution upon the Iugment against Sir Thomas Rivet the younger as Heir apparant to the Land to him descended from Sir Thomas Rivet who pleaded Riens per descent from Sir Thomas Rivet and it was found that he had two acres and a half of Land by discent and it was prayed by Goldsmith that Iudgment might be given against Sir Thomas Rivet generally for he said that this false Plea shall charge him and his own Lands and cited Plowden 440. where in debt against an Heir upon his false Plea his own Lands shall become liable to the debt and Co. lib. 3. 11. b. Sir William Herberts case where the case was upon a Scire facias against the Heir as it is in this case But on the other part it was argued by Richardson the Kings Serjeant Banks and all the Iustices that Execution shall be awarded in no other manner against the Heir then it should be against his Ancestor or other Purchasor to wit of a Moyety of that which he had by discent for as much as in this case he cannot be to this purpose charged as Heir but he ought to be charged as Ter-tenant and as a Purchasor and a Purchasor shall never hurt himself but his false Plea And Banks argued that the Heir in this case is charged as a Purchasor and the false Plea of a Purchasor shall never charge himself 33 E. 3. Fitz. Execution 162. and 6 E 3. 15. and that in this case he is charged as Ter-tenant appears by three reasons 1. Debt will not lye against an Heir but where he is bound as Heir but in this case Execution is to be sued against him as another Ter-tenant Dyer 271. 11 E. 3. 15. and in 27 H. 6. Execution 135. and Co. lib. 3. 12. b. That in Iudgment upon Debt or Recognisance the Heir is charged and
Proviso extends only to Iudgments originally commenced in Towns corporate and not to executions upon Iudgments given in superior Courts for then the Sheriff does execution as an Officer to these Courts And the Sheriff of the County is at as great pains as if he were Sheriff of another County and shall not be bound by the Proviso Whitlock Iustice was for the Plaintiff in both the points to wit that the Sheriff shall have 1 s. for every 20 s. of the first 100 l. and 6 d. for every 20 s. of the residue And by him the Sheriff may refuse to do execution untill the levying money be paid to him And for the second point the Sheriff of the County of the City is not within the Proviso but shall have the Fees by the Statute provided as well as the Sheriff of the County shall have for the words are generall and the exception goes to all Towns corporate and Cities but doth not say Cities which are Counties and therfore this Sheriff is within the benefit of this Law And in Michaelmas Term next following the case was moved again by Whitlock for the Plaintiff and he said that he would not speak to the second point because the Court had delivered their opinion that the Proviso in the Statute that this shall not extend to executions in Towns corporate it is to be intended of executions in Towns corporate upon Iudgments there given But for executions there upon Iudgments given in this Court or any other superior Court the Sheriff shall have such Fees as are limited by this Statute And the Court said to him that were agreed of it And as for the first point he conceived that the Sheriff shall have 12 d. for levying of every 20 s. of the first 100 l. and 6 d. of every pound more and this appears cleerly by the Letter of the Statute And the case in Mich. 19 Jac. in C. B. between Empson and Bathirst doth not make against it for the resolution of the said case was upon other matters The case being a man was bound in a Statute of 120 l. the Sheriff extends and before the Liberate takes double Bond of the party for payment of his Fees and afterwards brought Debt against the party who pleads the said matter in Bar and the Statute of 23 H. 6. cap. 10. And in the case were three points 1. Whether the Sheriff may take a double Bond for the payment of his Fees and it was resolved that the Bond was void for the Sheriff might have Debt upon the Statute for his Fees 2. Whether the Sheriff shall have his Fees before the Liberate and resolved that he shall not 3. Was this very question and two Iustices were against one that where the summ exceed 100 l. he shall have but 6 d. for levying of every 20 s of the first 100 l. But the Iudgment was given upon the other points All the Court seemed to be of opinion that he shall have 12 d. for every 20 s. of the first 100 l. and 6 d. for every 20 s. of the residue The same Term in the same Court. Awdeley versus Joye AWdeley being put out of the Town-Clarkship of Bedford moved for a Writ of Restitution to the place and it seemed to Doderidge Iustice that the Iustices of this Court have power to grant restitution in this case and he cited a case in 16 Eliz. in this Court where restitution was granted in such a case and 43 Eliz. by warrant of Fennor Iustice a Writ of Restitution was granted One who was Town Clark of Boston for life was made Alder-man and put out of his Clarkship and was restored This Court hath power not only in judiciall things but also in some things which are extrajudicial The A Writ of Restitution to a Town-Clark being ousted of his Office Major and Commonalty of Coventry displaced one of the Alder-men and he was restored And this thing is peculiar to this Court and is one of the flowers of it Crew chief Iustice doubted whether restitution could be made to Awdeley or no because the Office was granted to him in Reversion when it was expectant upon an Estate for life and when the Officer for life died Joye was elected and he said that all the said Writs remembred are where he had once possession Whitlock Iustice in the case of one Constable 10 Eliz. It was resolved that this Court hath power to grant restitution in such a case where he was put out of his Office And by Jones Iustice this Court hath power to grant Restitution and he remembred one Mittlecots case And Noy being of Counsell with Awdeley said that there are Presidents to prove this in the times of E. 2. E. 3. and H. 6. And it was said by the Iustices that they are the chief Conservators of the Peace within the Realm and therfore have power for the preservation of the Peace in such factious Towns to grant restitution The same Term in the same Court Dabborne versus Martin THomas Dabborne brought an action upon the case against Martin for Words Thou art a Knave of Record these words Thou art a Knave of Record and a forgering Knave And it was argued by Jermy for the Defendant that the words were not actionable for a Knave signifies a Male-child so that it is no more then to say Thou art a Male-child of Record And for forgering Knave the action will not lye for Forger is a generall word and may be applied to divers Trades as forgering Smith forgering Goldsmith and when he called him forgering Knave there was no communication of his Office 18 Jac. Sir William Brunskill brought an action upon the case and declared that he was well discended and was a Gentleman of the Chamber to Prince Henry and he brought an action for these words Thou art a Cosener and livest by cosenage and adjudged not actionable Co. lib. 4. 16. Action upon the case doth not lye for these words Thou art a corrupt man if there were no communication touching his Profession And it was argued for the Plaintiff that the words were actionable for it lyeth for these words Thou art an Out-putterer if they were spoken in Northumberland where they are understood but not here because they have no signification And the words here are speciall and shall have reference to his Office and shall have such an interpretation as is now used and now Knave hath no signification of Male-child Jones Iustice said that if one saith that such a one is a corrupt Iudge action lies or if one saith of a Clark that he is a forging Clark action lies And in 28 Eliz. the opinion of Iustice Fennor was that for these words Thou hast forged my Fathers Will action lies Crew said that he did not understand the word Forgering but for calling one Knave of Record action lies And Doderidge Iustice said that he never gave way to these actions upon the case for words And no opinion
was given this day The same Term in the same Court. Goodwin versus Willoughby GOodwin brought an action upon the case against Joane Willoughby wife of Thomas Willoughby and upon non Assumpsit pleaded it being found for the Plaintiff it was moved in Arrest of Iudgment 1. That the Plaintiff shews that Thomas Willoughby was indebted upon account and doth not shew that Joane Willoughby is Executrix or Administratrix and yet that she promised to pay wheras in truth she hath no cause to pay for there is no consideration and so Nudum pactum Jermy for the Plaintiff for the first because it doth not appear for what cause he accounted I answer that this is but a meer conveyance And for the second that she does not suppose that the Feme is executrix c. But here is a good consideration which is that she shall not sue or molest and that he gave day for payment this is a sufficient consideration But Stone of counsell with the Defendant said that the first is the ground of the action and therfore he ought to shew for what he accounted Crew chief Iustice two exceptions have been taken 1. For the alledging the manner of the account which I conceive is good enough and he need not shew the cause of the account And as to the second because it doth not appear that she is Executrix or Administratrix and so no consideration and so no Assumpsit But here she assumes to be Debtor and makes a promise to pay which is an acknowledgment of the Debt by inference and therfore he conceived that the Assumpsit was good Doderidge Iustice for the first it is good enough yet Cum indebitatus existit is no good Assumpsit but here he shows a speciall way of Debt and it would be long and tedious to describe his account For the second there is no cause of action because it doth not appear that she is Executrix or Administratrix or Executrix of her own wrong If I say to one do not trouble me and I will give you so much this is not actionable for there ought to be a lawfull ground and for this cause the Declaration Where forbearance without cause of action is no ground of an Assumpsit is void for it is only to avoid molestation Give me time c. this is no good Assumpsit for forbearance is no ground of action where he hath no cause to have Debt Jones Iustice agreed in the first with them because a generall action upon the case sufficeth and in truth it is but an inducement to the action but for the other part he doubted and he cited one Withypools case an Infant within age promised to pay certain money he makes an Executor and dies within age the Executor saith to him to whom the promise is made forbear and I will pay you and there an action upon the case did lye against the Executor upon this promise and yet it was a void Contract but there was colour of action forbear till such a time now the other hath lost the advantage of his Suit But he gave no opinion Crew It is a violent presumption that he is indebted But by Doderidge here is no colour to charge her but only by inference that she is Executrix If a stranger saith forbear such a Debt of J. S. and I will pay it it is a good consideration for the losse to the Plaintiff and in this case it appears not that there is any cause and Broom Secondary said that Withypools case before cited was reversed in the Exchequer Chamber Jones If an Infant makes a promise it is void and he may plead non Assumpsit which Doderidge did not deny But upon his Obligation he cannot plead Non est factum for he said that he shall be bound by his hands but not by his mouth The same Term in the same Court Drope versus Theyar IN Debt by Drope against Theyar an Inne-keeper upon Issue joyned and a Verdict for the Plaintiff Bolstred moved in Arrest of judgment for the Defendant and the matter was that one Rowly who was servant to Drope lodged in the White Heart at S. Giles and there had certain Goods of his Masters which were stoln from him in the night and Drope the Master brought an action therupon and it was moved by Bolstred that the Plaintiff was without remedy 1. Because it was in an Inne in London for the Register 105. is Quando quis depraedatus euns per patriam which as he said could not be extended to an Inne in London 2. It ought to be an Inne as Inne-keeper 3. He ought to be as a Guest lodging and this appeareth in Culeys case in 5 Jac. in Celly and Clarks case which was entred Pasch 4. Jac. Rot. 254. It was adjudged that where the Guest give his Goods to his Host to deliver to him three daies after and the goods are lost that an action is not maintainable against the Inne-keeper for them and this was in an Inne in Uxbridge And in one Sands case where the Guest came in the morning and his Goods were taken before night he shall have an action against the Inne-keeper 4. The Goods ought to be the Goods of the party who lodgeth there for the words are Ita quod hospitibus damna non eveniunt and here the Master who brought the action was not Guest But admit the Master shall have the action yet he ought to alledge a custom that the Master shall have the action for the Goods taken from his Servant Trin. 17 Jac. Rot. 1535. Bidle and the Master brought an action for Goods taken from the Servant and there it was resolved that he ought to conclude that Pro defectu c. and apply the custom to him being Master Sec Co. Book of Entries 345. And that a custom that for other mens Goods in the custody of Guests the Owner shall have an action against the Inne-keeper if they be stollen Ob. This is the Common Law and therfore ought not to be alledged Answ Where a man takes upon him to shew a custom he ought to shew it precisely he cited Heydons case Co. lib. 3. 28 H. 8. Dyer 38. And it was said for the Plaintiff that Goods are in the possession of the Master which are in the possession of his Servant and so here the Master might have had action well enough 8 E. 4. my Servant makes a Contract or â—â—ies Goods to my use I am liable and it is my act By the Court an Inne in London is an Inne and if a Guest be robbed in such an Inne he shall have remedy as if he were Enns per patriam But the cheife point was whether the master shall have the action in the case where the Servant lost the goods and by Jones Justice in 26 Eliz. in C. B. upon the Statute of Hue and Cry it was resolved that if the Servant be robbed the Master may have the Action and so by him
shall it be in the case Doderidge Justice the Servant may have the Action also If the Servant be robbed of wares the Master or Servant may have an appeale 8. E. 2. Tit. Robbery two joynt Merchants one is Robbed both shall joyne in the Action and may also joyn in the appeal But it may be objected as Whitlock Iustice did that the Master is not Hospitans I say this is to no purpose A man put his Horse in the Stable and before he goes to bed or lodging the Horse is gone he shall have an action although he did not lodge there For the word transeuntes although he be at the end of his Iourney yet it is within the custom and he shall have action And by Crew if I send cloath to a Taylor and it is stoln from him the Taylor shall have an action of trespasse or the Owner Jones the case of Hue and Cry is a more stronger case then this is for there the Servant ought to swear that he is robbed and yet the Master shall have an action And for the word transeuntes all agreed that although he be at the end of his journey or at an Inne in London yet he is within the remedy of this Law And if a man stay in an Inne a moneth or a quarter of a year shall not he have an action if he lose his Goods Doderidge agreed that if a man be boarded in an Inne and his Goods are stoln he shall not have an action upon this Law And notwithstanding this objection judgment was given for the Plaintiff upon the Verdict Trin. Term 2 Car. In the Kings Bench. Sir William Buttons Case SIr William Button a Iustice of Peace brought an action for these words Sir William Buttons men have stoln Sheep and he spake to me that I should not prosecute them and it seems that the action did not lye because Words Sir William Buttons men have stoln Sheep and be spake to me that I should not prosecute them Sir William did not aver that he is a Iustice of Peace and it doth not appear in what County the said Felony was done 36 Eliz. One brought an action for these words A. is a cosening fellow and the greatest Pickpurse in Northamptonshire and there is not a Purse picked within 40. miles of Northampton but he hath a hand in it And the action did not lye because he did not aver that there were Purses cut Jones Iustice put this case One saith that A. is as strong a Thief as any is in Warwick Gaol he ought to aver that there is a Theef in Warwick Gaol or otherwise they are not actionable Doderidge put this case There is a nest of Theeves at Dale and Sir Iohn Bridges is the maintainer of them these are actionable because it implies maintenance Note that it appeared upon a motion which the Attorney-generall made against one Lane who is a Recusant in Northamptonshire that a Lease for years made by a Recusant of his own Lands after conviction if it be Bona fide will bind the King but if it be upon fraud and covin then it will not and Whitlock said that it is a common course for Recusants to make Leases after their Indictment and before conviction The same Term in the same Court The Case of the Major Bayliffs and Jurates of Maidstone IN a Quo warranto depending against the Mayor Bayliffs and Iurates of Maidstone in Kent Serjeant Finch of Counsell with them of Maidstone put the case briefly in effect thus In the Quo warranto against them it was ordered by the Court that they should have day to plead untill afornight after Trinity Term and the truth was that they had not pleaded accordingly wherupon Iudgment was entred in the Roll and the Writ of Seisin awarded and execution therupon and afterwards by a private order in the Vacation by the chief Iustice and Iustice Jones it was ordered that the Iudgment should be staid and the truth was that it was never entred amongst the Rules of the Court and therfore he prayed that the Iudgment might not be filed but that the last order might be observed and that they might amend their Plea Hendon Serjeant on the other side said that it could not be for by the Iudgment given the King was intitled to have the profits of Franchises which he shal not lose he cited the case which is in F. N. B. 21. Error in B. R. cannot be reversed the same Term before the same Iustices without a Writ of Error but otherwise it is in C. B. and he said that the same course was observed in Eyre there can be no pleading in Eyre after the Eyre determined and upon this he cited the case of 15 E. 4. 7. before the Iustices in Eyre if the Defendant does not come the Franchises shall be seised into the Kings hands nomine destinctionis and if the party who ought the Franchise doth not come during the Eyre in the same County he shall forfeit his Franchise for ever so here after Iudgement entred there can be no plea per que c. Finch we have order from the Court for stay of Iudgement here no perfect Iudgement was given and this is not without president and he cited one Chamberlains Case where the Iudgement was nigh to perfection c. but he did not put the Case Creve ch Justice in this case there was the assent of the Attorney generall who prosecuted the Quo Warranto and so the cases put by Hendon to no purpose Jones upon F. N. B. 21. J. took this difference true it is that the Kings Bench cannot reverse a Iudgement although it be in the same term without a Writ of Error but this is where error lies in Where the Kings Bench may reverse its owne judgmeÌ„t without Writ of Error and where not the same cause in the same Court as upon outlawry but if no error lies in this Court for the same cause but in Parliament then the Kings Bench may reverse the Iudgement without Writ of Error being the same term And the Iudgement here was ever of Record for the Roll untill it be fixed amongst other Rolls is no Record And for the Case of 15. E. 4. 7. it is not like our case in reason for when When a Roll â—s become a Record the Eyre is determined the power of the Iustices in Eyre is also determined but it is not so here for the Iustices have power from Term to Term But Noy argued further for the King that it is a Iudgement of another Term and Execution awarded upon it and said that it is without president that now it should be avoyded and upon the awarding of execution the King under his seal hath averred that judgement is given which cannot be falsified and for Chamberlains Case he said that there was an assent in it Doderidge the Question which now is moved is but this whether a Iudgement entered in a private Roll
as a memorandum and afterwards there is an order that the Iudgement shall not be filed if the Iudgement upon this shall be stayd and speaks to it and by him the Case of 15. E. 4. 7. is nothing to this purpose for Iustices in Eyre were Iustices by commission and they had not the custody of their Records and so it differs from this case And Jones Justice which was not denyed if a Iudgement be pronounced here and be not entered the Iudges may alter it the next Term. It was said by Noy in this case that all Franchises in England are against common Right and execution of Iustice and for the present purpose he cited one Sir John Wells Case where in a Quo Warranto the Defendant had day to plead or otherwise that judgement should be entered to seise and he failed to plead at the day and the Iudgement was not filed and yet he could not be relieved But it was sayd by some of the Iustices that this was a case of great extremity But by Hendon it was affirmed in the Exchequer in one Sandersons Case and in the principall case the matter was adjourned for a fortnight and ordered that the plea should be accorded Mich. Term 2. Car. in the Kings Bench. Sharp versus Rust IN an Action upon the Case upon an Assumpsit between Sharp Plaintiff and Walter Rust Defendant upon non-Assumpsit pleaded it was found for the Plaintiff and it was moved in arrest of judgement upon these words in the Declaration the Defendant being Father to the Plaintiffs Wife for whom the Apparrel was bought said to the Plaintiff deliver the Apparrel to my Daughter and I will pay for them and saith not to whom the payment shall be made And it was argued by Woobrich of Grayes-Inne that this is no sufficient cause to stay the Iudgement for by necessary implication and reference of the words precedent the certainty of the pers on appeareth to whom the payment ought to be made And he observed that in our Law the time the estate the thing and the person not being sufficiently expressed Where a thing incertain may be made certain both in time estate and person yet by necessary coherence and relation to matter precedent they are sometimes made certain enough 1. For the time Perkins P. 496. puts the Rule if a condition hath relation to an act precedent and no time is limited when it shall be done yet if ought to be done when the act precedent is done and therefore if I. S. be bound to me in 20 l. upon condition that if I enfeoff him of black acre that then he wil pay me 10 l. c. in this case presently when I have enfeoffed the obligor of black acre he ought to pay the 10 l. notwithstanding there be no time limited when it should be payd 2. For the thing being put incertainly yet the communication precedent makes this certain 30. H. 8. Dyer 42. in the Case of the Executors of Greenliffe where it is agreed that albeit it is not shown what thing is granted yet it shall be the Land of which the communication was 3. For the Estate although it be incertain yet sometimes it is made certain by the matter precedent as in the Case Co. lib. 8. A Stewardship was granted for life and afterwards an Annuity was granted for the exercise of that Office without declaring what Estate he should have in that Annuity and resolved that he should have the Annuity for life because he had the Office for life 4. For the person the consideration sometimes ascertains the person and therefore if land he given to one by Deed habendum sibi una cum filia donatoris in frankmariage this shall enure to both because the Feme is Causa donationis and by intendment of law the Land and the feme shal be given together to the man for the advancement of the Feme as it is Mich. 2. 3. Ph. Mary Dyer 126. a 4. E. 3. 4. Plow Com. 158. enfeoff him another and bind him and his heirs to warrant doth not say to whom he shall warrant yet the Feoffee and his heirs shall have advantage of this warranty for it cannot have any other intendment 6. E. 2. Voucher 258. 22. E. 4. 16. Kelleway 108. Co. lib. 8. Whitlocks Case In a Lease for years reserving rent it is the surest way to make the reservation to no person in certain but to leave it to the general intendment of the Law 15. H. 7. A man deviseth that his Land shall be sold for the payment of his debts and doth not say by whom they shall be sold by his Executors because they are lyable for the payment of his debts but if one devise that his land shall be sold saith not for the payment of his debts the devise is void because the Law doth not intend in this case to make the sale 40 E. 3. 5. 4. E. 3. Fitzherbert Obligation 16. Nota if a man be bound in debt or Covenant by writing and puts such a clause in the writing Et ad majorem hujus rei securitatem invenit fidei jussores quorum unusquisque in tot in solido se obligavit that although none speak there but the principall in the writing if the others put to their seals they accept that which the principal spake so become principal 2. E 4. 20. and here in our Case it appeareth that the Deed was so therefore it is reason that the Declaration should be so for there cannot be a material difference between the Declaration the deed especially being upon an agreement which is to be ruled according to the intention of the parties as it is in Plow Com. 140. a. In our Law if any parties be agreed upon a thing and words are expressed or written to make the agreement although they be not apt words yet if they have substance in them tending to the effect intended the Law shall take Intention of parties to be observed them of the same substance as words usuall for the Law regards the intention of the parties and here the intent appeareth that the assumption shall be mâ—de to the Plaintiff although there want expresse words and therefore he prayed Iudgement for the Plaintiff And afterwards the same Term Iudgement was given for the Plaintiff The same Term in the same Court. Beven versus Cowling IN an Action upon the Case Littleton mooved in arrest of Iudgment for the Defendant wherein the Case was this the Defendant assumed that if the Defendant would defer the payment of a bond in which one A. was bound to him and would not implead him upon it then he promised to pay it and he doth not say that he deferred the payment untill such a day and therefore this is no valuable consideration so that the action doth not lye for notwithstanding Action upon the Case upon a â—romise that if â—e would not sue such a
one he would pay it where good where not this he may implead him presently Mich 12. Jac Kebles Case A man promiseth to pay so much in consideration of a Lease at Will and it was holden no good consideration for by the same breath that he creates it he may defeat it Pasch 8. Jac. Austins Case A man promise that in consideration he would forbear another he would pay it and no time was limited and therefore it was holden no good consideration Trin. 38. Eliz. Rot. 523. A man promise quod non implacitabit and avers quod non implacitavit and because of the uncertainty it was holden no valuable consideration Doderidge Justice If there be no consideration at the time or no cause of Action the forbearance afterwards will not make it actionable and he said that it had been adjudged in this Court that a consideration to forbear for a little time is not good but by some to forbear for a reasonable time is good But in the principall Case upon the hearing of the Declaration read it appeared that it was that he should never implead him upon the said obligation so that if the Plaintiff brings an Action upon the obligation the Defendant here may have an Action upon the Case against him Also it was non implacitabit and this shall be taken indefinitely quod nunquam implacitabit and therefore the Iudgement was affirmed for otherwise the Plaintiff shall both take advantage of this promise and of the bond also and here he hath in a manner forsaken the benefit of his bond and hath betaken himselfe to the benefit of this Assumpsit By Jones and Whitlock Iustices if A. be bound to me and I enter into bond to him that I will not sue this Obligation I cannot sue him upon the first Obligation without forfeiture of my bond and by Doderidge if an Obligation be forfeited and I say to the Obliger do not sue the Obligor or do not implead him an Action upon the case lies against me The same Term in the same Court. Arnold versus Dichton IN an Action upon the Case and Non-Assumpsit pleaded it was found for the Plaintiff and Noy mooved in arrest of Iudgement that there was no consideration to maintain this Action the Case being thus Arnold having married the Daughter of the Defendents Testator the Testator promised to give him 40 l. and meat â—nd drink for a year and a Featherbed and Bolster and afterwards the Testator in consideration that the Plaintiff would Assumpsit forbear to sue him all his life for it promised that he should have as good a portion at his death as any of his children and the Plaintiff declares that he gave to one Tho. P. one of his Sons 200 l. and that he left him at the time of his death but 30 l. but when he gave to Tho. P. the 200 l. appeares not peradventure it might be in his life time and this promise doth not extend to that which he had given before as if a man be bound to keep a Goale and that no prisoner shall escape this only extends to a future keeping and future escapes and not to other escapes which were before True it is that sometimes the Law will alter the sense as in the Case of 32. H. 6. where a man is bound that his Feoffees c. And at another day Doderidge said that the first promise was but an inducement to the second and the Defendant hath pleaded Non Assumpsit to the last promise and then comes the Plaintiff and shews that he gave to such a one 200 l. and doth not shew when this was given and this may be before the promise and therefore I conceive the Declaration is not good Jones agreed that the Declaration is not good for admit that in this case he had given to all his children but one great portions before the said promise and had given a small portion to one after the promise the Plaintiff now shall have but according to the said promise and it is alledged here that he gave to such a one 200 l. which may be before the promise and therefore the breach not well laid Whitlock contra and that the Plaintiff shall have according to the best gift in this case whether it were before or after the promise and that upon the intention of the promise for the intention is that the Plaintiff should have as good a marriage or portion with his Daughter as any other of his children should have But by Doderidge this construction cannot be made without offering violence to the words for then daret should be for dedisset and for any thing which appeareth he had a portion before and this was but a superaddition Jones put this case I am bound to enfeoff J. S. of so much Land as I will enfeoff J. D. this extends not to a Feoffment which I have made to J. D. before but only to a Feoffment which I shall make to him afterwards which was not denied by Whitlock and it was adjourned The same Term in the same Court. Barker versus Ringrose BArker brought an Action upon the Case against Ringrose and declared that whereas he was of good fame and exercised the Trade of a Wool-winder the Defendant spake these scandalous words of him that he was a Words Thou art a bankrupt Rogue Bankrupt Rogue and it was moved in arrest of Iudgement that those words were not actionable for the words themselves are not actionable but as they concern an Office or Trade c. and it appeareth by the Statute of 27. E. 3 that a Wool-winder is not any Trade but is but in the nature of a Porter so that the Plaintiff is not defamed in his function because he hath not any also it is not averred that he was a Wool-winder at the time of the words speaking Jones Justice If one saith of a Wool-winder that he is a false Wool-winder action upon the Case lieth and it was demanded by the Court A Wool-winder wâ—at he is what a Wool-winder was and it was answered that in the Countrey he is taken to be a Wool-winder that makes up the fleece and takes the dirt out of it and a Wool-winder in London opens the fleeces and makes them more curiously up and in London they belong to the Mayn of the staple Doderidge If one saith of a Sher-man that he is a Bankrupt Action lyes and so it hath been adjudged of a Shoo-maker and note that if one saith of any man who by his Trade may become a Bankrupt within the In what case to call a man Bankrupt is actionable Statutes that he is a Bankrupt an Action lies as of a Taylor Fuller c. And the Court seemed to incline that in this case being spoken of a Wool-winder in London the Action lies But Mich. 3. Car. the Case being moved again the Court was of opinion that the Action could not lye and would not give
Iudgement for the Plaintiff The same Term in the same Court NOta by Doderidge and Jones Iustices that upon the principall Iudgement reversed the outlawry is also Ipso facto reversed Also if an Outlawry reversed upon revers all of the principall judgement outlawry be awarded if it be not per Judicium Coronator unlesse it be in London the outlawry is voyd It was demanded by the Iustices when the outlawry and Iudgement are affirmed how the entry is And it was answered by Broome Secondary that the entry is generall Quod judicium affirmetur in omnibus and this sufficeth But if the Iudgement be affirmed and the outlawry reversed then the entry is Quod judicium affirmetur Utlagario cassetur The same Term in the same Court Calfe and others versus Nevil and others AScire facias was brought by Joseph Calfe and Joshua Executors of A. against Nevil Davyes and Bingley and the Case was this they became bayle to one Hall who was condemned in an Action to the Testator of the Plaintiff that the said Hall should either render his body to Prison or that he should satisfie the Iudgement the Defendents Plead that after the Scire facias returned and presently after the Iudgement the said Hall brought a Writ of Error in the Exchequor Chamber hanging which the said Hall reddidit se prisonae in exoneratione manucaptorum suor and there dyed and the Plaintiffe demurred upon this Plea because it was double and Calthorp argued for the Plaintiff that it was double or rather treble 1. That Reddidit se prisonae 2. That he was imprisoned 3. that he dyed in Prison And to prove the Piea double in this Case he cited 13. H. 8. 15. 16. 4. E. 4. 4. 21. H. 7. 10. The second matter that he moved against the former was that pendant the Writ of Error reddidit se prisonae and doth not conclude upon the Record hoc peratus est verificare as he ought to have done and for this he cited 7. H. 8. Kelleway 118. If J. S. bee bound in a Recognizance that A. shall appeare such a day before the Kings Iustices at Westminster if his appearance be not recorded hee shall not have any averment by Bricknell and Conisby and in 30. Eliz. It was one Wicks Case which is ours in effect in case of baile Dyer 27. 6. E. 4. 1. 2. For the matter the Plea is nought 1. Because by the Writ of Error brought the Scire facias against the baile is not suspended because the Bayle is a distinct record and upon this he cited the Case of the Ambassador of Spain against Captaine Gifford which was Trin. 14. Jac. That by the Writ of Error brought the baile was not suspended and he said that it was so resolved also in Goldsmith and Goodwins Case 2. For the render of the principall to prison it is not good because it doth not appear upon Record and for this he cited one Austin and Monkes Case which was in 14. Jac. In Scire facias against the baile it is pleaded that the principall had rendered himselfe to prison and upon the matter it appeared that the render was upon Candlemas day which is not Dies juridicis and so the Court this day had no power to commit him to prison for which the Plea was adjudged voyd 3. For the death it is no Plea the baile by it is not discharged because he hath not rendered himselfe in due time and for this he cited Justice Williams and Vaughans Case which was Mich. 3. Jac. where in Scire facias against the baile they pleaded that the principall was dead and thereupon the Plaintiff demurred and in this Case two points were resolved 1. There was no Capias mentioned to have issued against the principall and yet resolved that a Scire facias would lye against the Baile 2. That the Plea in Bar is not good because it may be that the principal dyed after the Capias awarded or after the return thereof because it appeareth that there was once a default in the principal and so the baile forfeited and no Plea afterwards would discharge it and upon this he put this Case A Prisoner escape out of Prison the Goaler makes fresh suit and before he hath taken him the Prisoner dies this is the act of God and yet because it was once an escape an Action of Escape lyes against the Goaler Jermy for the Defendent and he remembred a Case which was Hil 20. Jac. Cadnor and Hildersons Case that by the Writ of Error the bayle is suspended Nota that it was agréed by the Court in this case that by the Writ of Error brought in the bayle was not discharged because it is incertain whether the Iudgement shall be reversed or not Also it was agreed that if the principal dies before a Capias awarded against him that the bayle is discharged It was also agreed by the Court that the Plea was not double for the first matters are but an inducement to the last and yet by Doderidge if severall matters are pleaded in Bar and there be not any dependency on them the Where a Plea is double and where not Plea is double although none of them be materiall but one Jones Justice cited one Hobs and Tadcasters Case which was 43. Eliz. in B. R. where after a Writ of Error brought a Scire facias issued against the Bayle and upon Nihil returned the Plaintiff in the Scire facias brought in an Audita Quaerela and there the matter came in question whether upon the Iudgement the Principall ought presently render himself to prison or that he should stay until a Capias awarded against him and there it was resolved by Popham and all his Companions that the Principal is not bound to render himselfe to Prison untill a Capias be taken out so that if he dies after the Iudgement and before the Capias awarded against him the Bayle is discharged And in the principal Case here it was resolved that a Scire facias does not lye against the Bayle until a Capias be awarded against the Principal because no Capias in this case was awarded against the Principal which could not be by reason of the Writ of Error before his death And also the Plaintiff in his Declaration ought to have averred and shewn that the Capias was awarded against the Principal for these reasons Iudgement was given quod quaerens nil capiet per Billa The same Term in the same Court. Reynor versus Hallet IN an Action upon the Case for these words viz. Reynor is a base Gentleman Words Reynor is a base Gentleman he hath foâ—â— childâ—en by his seâ—vant Agnes and he hath killed or caused them to be killed he hath four children by his Servant Agnes and he hath killed them all or caused them to be killed and after a verdict for the Plaintiff it was moved in arrest of Iudgement by Jermy that the words were not actionable For 1.
As to the first words Base Gentleman they are but words of choller 2. The next words He hath four Children by his servant Agnes cannot be actionable for although she were once his servant yet she might be afterwards his Wife 3. The Plaintiff hath averred in his Declaration that he hath lived continently and then he cannot have children by his servant Agnes and then the words are not actionable And 4. For saying he hath killed them is not actionable and upon this he cited one Snags Case Co. lib. 4. who brought an Action for these words Thou hast killed thy Wife and it appeared by the Declaration that his Wife was alive and therefore it was resolved that the words were not actionable And as to the last exception it was said by Ashley Serjeant on the other side that albeit the Plaintiff hath averred in his Declaration that he lived continently and so in a manner confessed that he had no children this is but for the aggravation of the offence of the Defendant as when an Action is brought for calling one Thiefe he avers that he lived honestly and yet the Action will lye But I confesse if the Plaintiff had averred that he never had any child then it would be like to Snags Case Co. lib. 4. 16. a. and that the Action would not lye But in Anne Davyes Case there she averred that she was a Virgin of good fame and frée from all suspition of incontinency and the Defendant sayd that a Grocer had got her with child Owen Wards Case in Cook Book of Entries hath the same Declaration as this and it was the President thereof But Jermy moved another exception upon these words he hath killed them and doth not say Felony which is not good for he migt kill them in execution of Iustice which is justifiable Trin. 2. Jac. Willers Case in the Court it was adjudged that for these words Thou hast stollen a peece and I will charge thee with Felony an Action lies not because a péece is a word of doubtfull signification And Trin. 20. Jac. It was resolved that these words Agnes Knight is a Witch were not Actinable but it was answered of the other side that upon the whole frame of these words they cannot be intended but to be spoken malitiously and there can be no pretencâ— of lawfull killing of children Doderidge all the words joyned together are actionable but these words only considered he hath four children by his servant Agnes are not Actionable and albeit he doth not alledge it felony yet this is a scandall and good cause of Action Jones agreed and yet he conceived that for saying singly that one hath a Bastard an Action lies not albeit the having of a Bastard be punishable by the Statute of 18. Eliz. cap. 1. But by him he hath killed the King shall be taken in pejori sensu otherwise it is if the words of themselves be indifferent as Pope and this word shall not be the rather taken in pejori sensu having relation to all the sentence for the contrariety of the Declaration it seems to me that the Declaration is good enough but if one saith Thou hast killed J. S. where in truth there never was such a man it is not actionable But here the Averment of the Plaintiff is more generall Ubi re vera he is not guilâ—y or incontinent which is a general allegation but if he had averred ubi re vera he never had any child there peradventure the Action would not lye but here it will Whitlock Justice agreed and he sayd that the first words hath had four children by his Maid Agnes are actionable and for the other matters they agreed whereby Iudgement was given for the Plaintiff The same Term in the same Court THis Term in the Common-place Sargeant Hendon cited this Case to be adjudged 4. Jac. A Copy-holder made a Lease for yeares by License and the Lessee dyed that this Lease shall not be accounted assets in the hands of the Excecutors neither shall it be extended But the Case was denyed by Iustice Hutton and others and that an Ejectione firmae lies of such a Lease But he said that if a Copy-holder makes a Lease for yeares by License of the Lord and dyes without Heire the years not expired the Lord notwithstanding this may enter for the Estate out of which this Lease was derived is determined But Yelverton Iustice was contra because this License shall be taken as a confirmation of the Lord and therefore the Lease shall be good against him and there as I heard it was argued by all that if a Copy-holder makes a Lease for a yeare this is a Lease by the Common-Law and not customary and shall be counted assets in the hands of the Executors of the Lessée The same Term in the Kings Bench. NOta upon evidence to a Iury between Buffield and Byburo the Case appeared to be this upon a Devise with these words I will and devise that A. and B. my Feoffees shall stand seised and be seised to and of Iohn Callis for life the remainder c. And the truth was that he had no Feoffees and the opinion of the whole Court nullo contradicente was that this is a good Devise to John Callis by reason of the intention 38. H. 8. Bro. Devis 48. 15. Eliz. Dyer 323. were urged for the proofe of it and by Doderidge the Case of 15. Eliz. is more strong then our Case is Linyen made a Feoffment to his own use and afterwards devised that his Feoffees should be seised to the use of his Daughter A. who in truth was a Bastard and yet this is a good Devise of the Land by intention for by no possibility they can be seised to his use Mich. 2. Car. Lemasons and Dicksons Case in the Kings Bench. Trin. 2. Car. Roll. 1365. THe Case was this One Parcevall Sherwood was indebted to Susan Clarke who brought an Action of debt by a Bill of Middlesex which is in nature of a Writ of Trespas against him and Sherwood upon a mean Proces was arrested by the Defendant being Bayliff of the Liberty of White-Chappel and being in his custody he suffered him to escape Afterwards Susan Clarke made the Plaintiff her Executor and dyed and then the Plaintiff brought an Action upon the Case against the Defendant upon the said escape and upon issue joyned it was found for the Plaintiff And Calthrop of Councel with the Plaintiff moved that the Action will well lye for the Testator himselfe might have had either an Action of Debt or upon the case upon the sayd Escape and therefore the Executor may have the same remedy and that by the equity of the Statute of 4. E. 3. cap. 7. which gives an Action to Executors pro bonis asportatis in vita Testatoris And by 14. H. 7. 17. this Statute shall be taken by equity and Administrators who are in the same mischiefe shall have the same remedy albeit they
that it was good enough for although it were a joynt command yet the parties commanding having severall titles it shall be taken as severall commands reddendo singula singulis and for the third it is good enough being in a Plea otherwise if it had been in a Writ But for the second Exception the bar is not good enough because incertain so that although upon other Exceptions moved by the Defendant the Replication of the Plaintiff was not good yet the Defendants Bar being ill the Plaintiff shall have Iudgement upon tâ—e Declaration And the Plaintiff had Iudgement accordingly The same Term in the same Court Risley versus Hains IN an Action upon the Case upon an assumpsit the Plaintiffe declared upon the Sale of several parcells of Tobacco to wit for one parcell so much for another parcell so much and so forward and in the Conclusion he saith quae quidem separales summae in toto se attingunt to 55. l. which being computed is lesse then the pariculars and upon non assumpsit it was found for the Plaintiffe and now Andrewes moved in arrest of Judgement for that the particulars and the summing up of them differs and this being in a Declaration which ought to contain truth it is not good and so there appears to be no cause of action 35. H. 8. Dyer 55. And Grices Case in the very point Mich. 17. Jac. in this Court but by Jones and Whitlock Iustices onely present the Declaration is good enough for there is a particular promise for every parcell and the summing up of particulars is only surplusage and officiousness of the Clark therefore the Iudgement was affirmed And nota that Jones said obiter in this Case that upon a contract the Party to whom payment is to be made need not make request and afterwards it was agreed by the whole Court that it should be amended otherwise it had been more The same Term in the same Court A Great multitude of Welsh-men were Indited for the death of a man by an Inquisition taken before the Coroner in the County of Mountgomery in Wales and Littleton of Councel with the Welsh-men took some Exceptions to the Inquisition as 1. That the Coroner cannot take any Inquest unlesse it be super visum corporis and to this purpose he cited Britton 6. Ric. 2. Coron 107. 21. E. 4. 70. 2. Ric. 3. 2. This also is the reason that if a man drown himselfe and cannot be found the Coroner cannot enquire of the death of this man but for the King to have a forfeiture of his Goods an Inquisition ought to be taken before the Iustices of Peace as it was resolved in this Court Trin. 13. Jac. upon which the first exception was that the Inquisition was taken at D. in the time of King James super visum corporis in D. in the time of this King and for this he cited two presidents out of Cookes Booke of Eâ—tryes Another Exception was because the Inquisition was per Sacramentum probor legal hominum Com. predict whereas by the Stat. of 4. E. 1. this inquest ought to be by men of the four Towns next adjoyning and this ought to appear in the Inditement also Hill 10. Jac. Rot. 3. Co. lib. Intr. 354. And day was given to the Attorney General to maintain this Inquisition But afterwards Pasch 3. Car. the Inditement was quashed especially for the first exception The same Term in the same Court King versus Merrick In an Action upon the Case for these words I charge you King with Felony and you Constable inuendo Thomas Legat to apprehend him And a verdict for the Plaintiff It was moved in arrest of Iudgement by Bacon that the words are not actionable The first words are not because they are not an expresse affirmation and for this he cited Mich. 11. Jac. in this Court Powel and Bauds case where an action was brought for these words I have arrested Powel of Felony for stealing sheep of mine and adjudged not actionable Also the Plaintiff did not shew in his Declaration what kinde of felony this was and it may be such a felony for which an Action will not lie for there are divers kinds of felony and a Mayhem is one kind as appears in 40. Ass Pl. 4. 6. H. 7. 1 and in this case it shall be taken in mitiori sensu and it shall not be intended such a felony for which he may be hanged If one charge another with felony because he hath committed a Mayhem it is cleer that an action will not lye And the other words I charge you Constable to apprehend him are not actionable and the words are onely spoken to the Plaintiff Also the words are layd to be spoken in London and it appears that the Constable was of a Town in Norfolk who cannot apprehend any one in London Earle for the Plaintiff It hath been argued that the words are not actionable because felony is a generall word and contains in it selfe a mayhem also But I conceive that in this case felony shall be taken according to the general and common acceptation which is such a Felony for which a man may loose his life and for this he cited Co. lib. 4. 15. b. Yeomans charged Hext for my ground in Allerton Hext seeks my life and if I could find Iohn Silver I do not doubt but within two dayes to arrest him upon suspition of Felony and it was adjudged that for the last words the Action lies because he shall be imprisoned for suspition of felony and felony is there taken according to the common acceptation of the word It hath been objected that there is no expresse affirmation of the Felony but I conceive that there is 39. Eliz. Action was brought for these words I will call him in question for poysoning my Aunt and adjudged that it lyes and Mich. 37. and 38. Eliz. Woodrofe and Vaughans case for these words I did not know Mr. Woodrofe was your Brother I will prove him perjured or else I will bear his charges and adjudged actionable And Hill 44. Eliz. Rot. 351. This man inuendo Iohn Latham hath cut my Wives purse and his Father knowing of it received it of him and the Money and Rings theein and therefore I charge him of flat Felony and resolved that for these words did cut my Wife's purse no action lies for the cutting of ones purse only is not felony unlesse it be taken from the person and to receive one is not Felony but resolved that the last words were actionoble and then it was agreed that if one say that I. S. did see such a one that had committed felony and did suffer him to slip away I charge him of Felony these words are not actionable and Mich. 20. Jac. in this Court that these words beare witnesse I arrest him of felony are actionable and therefore he prayeâ— judgement for the Plaintiff Doderidge Iustice the words are not actionable And Hexts case comes not to this
alter the intendment that the Law hath otherwise of the words And Gawdy agreed also that in such cases the Defendant may plead the generall Issue and upon the matter also the Jury ought to find him not guilty But Popham and Clench sayd that this was a dangerous matter to be put in the mouthes of the Lay Gents as hath been said before and therfore to put it to the Iudgment of the Law by pleading And for the exception they ought to have shewn here where by whom and against whom the Petition was delivered to this they said that the exception was to no purpose for this was but a conveyance to the Speech used which Speech was the substance of the Bar and in this they put the case of the Lord Cromwell which was in this Court 22 Eliz. Rot. 752. In an Action upon the Statute of Scandalum Magnatum by him brought against Thomas Dye Clark for saying to the Lord Cromwel It is no news though you like not of me for you like of those that maintain Sedition against the Queens proceedings in which the Defendant said that he was Vicar of North Linham in the County of Norf. and that the Plaintff mentioned one Vincent Goodwyn Clark at such a time and one Iohn Trendle at such another time neither of them being licenced to preach in the said Church against the will of the said Defendant and shew how they severally preached there in their Sermons and shew certainly in what point Seditious Doctrine against the Laws of the Church as against the Crosse used in Baptisme and the wearing of the Surplice and that afterwards in speech therupon between the said Plaintiff and him the Plaintiff said to the Defendant That the Defendant was a false Knave and said in English words that he liked not of the Defendant wherupon the Defendant said the words comprised in the Declaration Innuendo That he liked of the said Goodwyn and Trendle who maintain Sedition Innuendo seditious Doctrine against the Queens proceedings Innuendo predict Leges Stat. Ecclâ—siae hujus regni Angl. c. And the Plaintiff was put to answer Scilicet de injuria sua propria absque tali causa c. And note in this case the Defendant would first have justified for the matter preached by one and it was not allowed by the Court but he was put to speak to both or otherwise it had not been good because his speeches were in the plurall number to wit That he liked of those which refers to more then to one And it was said in this case that the word Subject might have severall significations according to the circumstance wherupon it is spoken As Subiect generally without more is to be intended of the Queen but according to the circumstance it may be said Subject of England or Subject of Ireland or Subject to the Law or subject to any other authority or power set over him or subject to his Affections And if a man saith of another that he is a Subject and therfore he ought to serve the Queen in her Warrs and he answers that he is sorry for that and is grieved for it no Action wil lye for this because the grievance refers to service which is to be done and not to his Subjection as a Subject Dillon versus Fraine 9. IN Trespasse brought by William Dillon Esquire against John Fraine See this in Cook lib. 1. 120. bâ— the name of Chudleighs case for breaking of his Close at Tavestock in the County of Devon called Seden upon not guilty and a speciall Verdict the case appeared to be this to wit that Sir Richard Chudleigh Knight was seised in his Demesne as of Fee of the Mannor of Hescot with the Appurtenances in the County of Devon of which the said Close was parcel and so seised 26 April 3 4 Phil. Mar. by his Deed of Feoffment of the same date enfeoffed Sir Tho. Saintleger Knight and others and their Heirs of the said Mannor to the use of the said Sir Richard Chudleigh and his Heirs of the body of the said Elizabeth then the wife of Richard Bainfield Esquire lawfully begotten and for default of such Issue then to the use of the said Sir Richard Chudleigh and of his Heirs of the bodies of other wives of other persons lawfully begotten And for default of such Heirs then to the use of the performance of the Will of the said Sir Richard Chudleigh for 10. years after his decease and after the said Term finished then to the use of the said Sir John Saintleger and his Co-feoffees and their Heirs during the life of Christopher Chudleigh Son and Heir apparant of the said Sir Richard and after the death of the said Christopher then to the use of the first Issue Male of the body of the said Christopher and to the Heirs Males of the body of this first Issue Male and for default of such Issue to the second Issue Male of the body of the said Christopher to the Heirs Males of the body of this second Issue Male and so to the tenth Issue Male And for default of such Issue then to the use of Thomas Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten And for default of such Issue to the use of Oliver Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten And for default of such Issue to the use of Nicholas Chudleigh another Son of the said Sir Richard and of the Heirs of his body lawfully begotten and for default of such Issue to the right Heirs of the said Sir Richard Chudleigh for ever wherby they were seised accordingly after which the 17th of Novemb. 5 6. Phil. Mar. the said Sir Richard died without any Heir of the body of any of the wives before mentioned And after that the said Christopher took to wife one Christian Strecheley after which to wit the 14th day of August 1 Eliz. the said Sir John Saintleger and the other Feoffees by their Deed of the same date enfeoffed the said Christopher of the said Mannor to have and to hold to him and his Heirs for ever to the use of the said Christopher and his Heirs the said Oliver Chudleigh then being living after which to wit the 20th day of September 3 Eliz the said Christopher had Issue of his body lawfully begotten one Strechly Chudleigh his first Issue Male And after this to wit the 30. day of March 5 Eliz. the said Christopher had Issue of his body lawfully begotten one John Chudleigh his second Issue Male after which to wit the first day of July 6 Eliz. the said Christopher by his Deed indented of the same date and inrolled within six months according to the Statute bargained and sold the said Mannor to Sir John Chichester Knight and to his Heirs and in the interint also between the date of this Deed and in the inrolement therof to
case who agreed that the wife shall not have it The same Term in the same Court. Dennis versus Sir Arthur Mannaring and others IN the great case between Gabriel Dennis Plaintiff in Trespasse against Sir Arthur Mannaring and Brimblecomb and others the Verdict was found for the Defendants And now it was moved in Arrest of Iudgment for the Plaintiff because no Bail was entred for Brimblecomb one of the Defendants A Verdict is given in B â— before any bail entred not good for every Defendant is supposed in Custodia Marescalli and in this case the Venire facias is awarded to try the Issue between the Plaintiff and Defendants where one of the Defendants is no party in Court And Serjeant More put the case of the Lord Chandoys and Sculler and other Defendants where the Iudgment in such a case was resolved to be erroneous Mountague we ought Discernere per legem quid sit justum and here Brimblecomb being no party in Court no Verdict could be given Doderidge I have seen in this Court where upon a Writ of Error brought in such a case we have compelled him to put in his Bail because he should not take advantage of his own wrong and folly But because that here no fraud appeared to be in the Plaintiff he shall not be bound to stand to the Verdict Haughton agreed but Crook seemed to the contrary But it was agreed that if Brimblecomb had appeared at the Suit of any other the same Term it had been sufficient And these Books were cited to be in the point 32 H. 6. 2. 8 E. 4. 5. 21 H. 6. 10. The same Term in the same Court Hide versus Whistler WIlliam Hide made a Lease for years of certain Lands to Whistler excepting Exception of all Wood under-wood Coppices and Hedgerows to the Lessor all his Wood and under-wood Coppices and Hedgerows and in a Replevin the question was whether the Soil shall passe ther by for the Lessee put his Beasts into a Coppice and the Lessor distrained them wherupon c. And the words of the exception were further standing growing and being in and upon the Premisses And the Lessee covenanted to make Fences but if the Lessor made new Coppices that the Lessee should net make Fences about them And it was said that a Coppice signifies a parcell of Land fenced for the safegard of young Trees And it was said for A Coppice what it is the Plaintiff that Premisses are Pre dimissa and by these words growing and being in the Premisses it shall be intended that the Soil did not passe for it is pre-demised But it was resolved that the Soil it self was excepted by the exception of the Wood and Coppice 14 H. 8. 1. The Bishop of Londons case Co. lib. 5. Ives case and lib. 11. Lyfords case And by the reserving of a Coppice the Soil it self is reserved for by Mountague that which is reserved is not demised and so the Distresse well taken Crook agreed and he said the difference was good between Wood and Trees for by the excepting of Wood the Soil it self is excepted otherwise of Trees Haughton agreed that the Soil it self is excepted in this case and so it was adjudged The same Term in the same Court. Talbot versus Sir Walter Lacen IN a Writ of Covenant brought by Margaret Talbot against Sir Walter Lacen upon a Lease made by the Plaintiff to the Defendant of a Park Covenant to leave the Premistes in repatations at the end of the Term. c. for five years if she should live so long in which the Lessee covenants for him his Executors and Assigns to keep the Premisses in good Reparations and so to leave them at the end of the Term and also to deliver to the Plaintiff upon notice given four Bucks and four Does in season during the life of the Plaintiff in every of the said years And after the expiration of the aforesaid term of five years she brought a Writ of Covenant and assigned the breach because that in the end of the term he committed Wast and because that after the end of the term the Defendant refused to deliver the Deer And albeit the words of the delivery of the Deer are during the life of the Plaintiff yet they are also every of the aforesaid years and therforeit was resolved that she shall not have them during her life in this case And for the other point it was objected that in Fine termini was incertain for it may extend after the term but Ad finem termini had been sufficient Old book of Entries 169. for when he covenants that at the end of the term he would leave the Premisses in reparations and Ad finem termini he did wast this ought of necessity to be intended a breach of the Covenant and therfore it was adjudged that the action of Covenant well lies Mich 16. Jac. In the Kings Bench. Havergall and Hares Case IN this Case which see before fol. 1. b. four points were observed 1. Whether Fisher the Assignee of the Rent were such a person who Before fol. 1. b shall take benefit of the entry 2. When 10 l. is only in arrear whether the Rent of 20 l. shall be said in arrear 3. Whether these advantages which were first granted with the Rent may be granted over 4. When the Vse shall rise whether upon the first Indenture of the grant of the Rent or afterwards For the case was that the Grantee of the Rent of 20 l. covenanted by the same Indenture that if the said rent of 20 l. were in arrear for the space of twenty daies after any day of payment that the Grantee shall distrain and if there be not sufficient distresse upon the Land or if there be a Rescous Replevin or Pound-breach that then it shall be lawfull for the Grantee and his Heirs to enter into the same Land and to retain it untill he be satisfied And the said Rent was granted 9 Jac. it was arrear 11 Jac. the Fine for the better assurance of the Rent was levied 12 Jac. and 13 Jac. the Distresse was taken There were four Causes which give an entry and upon the Distresse and Replevin brought the Assignee enters As to the three first points it was resolved by the whole Court 1. That Fisher was such an Assignee who shall take benefit of the Entry 2. When 10 l. is only arrear the Rent of 20 l. shall be said arrear wherupon there shall be a Title of Entry 3. That these advantages granted with the Rent may be granted over And as to the fourth point it was holden by Mountague and Crook that the Vse riseth upon the first Indenture and not upon the entry after the Replevin brought although the words are that then it shall be lawfull for the Grantee and his Heirs to enter wherby the use is only awaked as it is in the principall point in Shelleys case and although a Fine is afterwards
case for there by the word Felony it was manifest what Felony he intended by the circumstances of the speech to wit that he ment such felony for which he might lose his life But the words here being generall of Felony it may be intended as well of a Mayhem aâ— of any other Felony for in an appeal of Mayhem he is arraigned as Felo Domici Regis 40. Ass and the other case of 44. Eliz. I do arrest him of flat Felony is not consonant with the reason of this case for there by the arrest his liberty is taken away but in this case there is no restraint and it is very hard to make these cases agree together for words are as variable as the faces of men c. Jones Justice agreed and he took it for a generall rule that where words carry a double sense and there is nothing to guide the sense more one way then another there the words are not actionable for finis est legis dirimire lites And therefore if one faith of another that he hath the Pox because the sense is ambiguous it shâ—ll be interpreted in mitiori sensu and therefore the words are not actionable to if one sayes of another that he hath stolen his Apples or his Corn because they may be Apples from the tree or Corn in the field the taking whereof is no felony but it was adjudged in the Common-Pleas when I was there that these words viz. Thou art a Thief and hast stolen my Corn are actionable by reason of the addition of the word Thiefe So that the speaking of words of a double sense are not actionable unlesse ex antecedentibus or consequentibus it can be collected that the words were spoken in pejori sensu Then the words in this case I charge you with Felony peradventure intend such a Felony for which he shall recover damages only which is Mayhem and therefore no action will lie These words Thou art forsworn are not actionable because forswearing may be in ordinary communication or in a Court of Justice and it shall be taken in mitiori sensu but if he sayes Thou art forsworn in a Court of Record it is actionable and if in this case he had charged him with Felony and sayd further that he had stolen c. they would have been actionable but here he only charges him with Felony which is an ambiguous word and also it is no direct affirmation and therefore not actionable and Iudgement was given Quod quaerens nil capiat per Billam The same Term in the same Court Goods Case GOod and his Wife brought a Writ of Error upon a Judgement given in the Court of the Castle of Windsor in an Action of Debt there which was entered Trin. Mich. 2 Car. Rot. 119. 120. and two Errors were assigned 1. Because the Judgement there is given in these words ideo consideratum ad judicatum assessum est whereas it ought to be onely by the word consideratum and the Judgement being the act of the Court the Law is precise in it and therefore it hath been resolved that a Judgement given by the word concessum is not good but it ought to be by the word consideratum 2. The costs ex incremento are not said to be given ad petitionem quaerentis aâ— it ought to be for beneficium nemini obt ruditur and therefore it hath been resolved in this Court that an alien born shall not have medietatem linguae if he does not request it and as to this it was answered of the other side that costs ought alwayes to be assâ—ssed ex petitione quaerentis and albeit here the request of the Plaintiff was not precisely put to increase of the costs yet at the beginning of the Judgement it is said Ideo ad petitionem quaerentis consâ—â—eratum c. And that costs shall be given ex in cremento so that this request goes to all the Sentence and by the unanimous opinion of all the Court the Judgement was reversed for both the Errourrs for 1. Ideo considerat adjudicat c. is not good the Judgement being the Act of the Court and the Law hath appointed in what words it shall be given and if other words should be suffered great incertainty and confusion would ensue and needâ—esse verbosity is the mother of difficulty 2. The increase of costs ought to be given ad petitionem quaerentis and the words ad petitionem quaerentis being misplaced will not supply this defect and Dammages ex incremento is alwayes given ad petitionem quaerent for as Bracton saith Omne judicium est trinus actus trium personarum judicis actoris rei and if in this case the usuall form should not be observed all would be in a confusion and in as much as the words are misplaced it is as if they had not been put in at all and therefore void like to a case put in Walsinghams case in Plowden where an averrement misplaced is as if there were none In this case the Judgement was reversed and Trin. 3 Car. in B. B. intr Hill 2 Car. Rot 849. a judgement was reversed because it was Ideo concessum consideratum est FINIS THE TABLE OF THE PRINCIPALL MATERS Contained in this BOOK A. ACceptance 113 Of a second Lease determines the first 9 Action 179 Where the Master shall be charged in an Action for the act of the Servant e contr 143 Action upon the case for words 35 36. 139. 140. 128 129. 148. 150. 177. 180. 184. 187. 207. 210. Action upon the case 116. 144. for pulling down a house 15 Against an Officer for his neglect 27 For laying too much waight wherby goods in another mans possession are lost 46 For stopping of a Water-course 166 Accessaries 107 Adjournment 33 Administration  not avoided by Averment 37. granted by a Lay-man 160 Administrators  Of the Wise shall have a Lease setled on the Wife not the Husband 106 Admittance 125 What the Heir may do before admittance 39 upon a surrender by a Disseisor 71 Addition  Of matter of Ornament shall not avoid a grant 57 Advowson 23 Agreement 134 construed according to the intention of the parties 182 Where to be joynt where severall 204 Alien  Where he may purchase where not 36 Amendment 21. 128. 203 204. Of the Postea and made according to the Pannel and the Record 102 Of a Record after the Record removed and Errour assigned 196 Annuity 87. 86 Pro consilio 135 Appropriation 144 145 Appeal  Of Mayhme 115 Plea in it 115 Assesment  by the major part of Parishoners shall bind the rest 197 Assumpsit 148. 182 183. 193. 206 against an Executor of an Assumpsit in the life of the Testator 30 31 32. generall indebitat Assumpsit 31 without consideration is nudum pactum 178 What shal be a good consideration to ground Assumpsit 183 184. Assise 111. Assets where a Lease for years to a Copyholder in the hand of
question and his sayd wife entred into them for her life by virtue of the sayd Will in whose life time the sayd George dyed without Issue after which the sayd Thomas also to wit 9 Dec. 1576. made his Testament in writing and of this made Mary his wife his Executrix and dyed having Issue Martha by the sâ—yd Mary Afterwards the sayd Alice the wife of the Dâ—visor tâ—e lâ—st of March. â—2 Eliz. dyed and after her death to wit the first of May 32 Eliz. the sayd William entred into the sayd Tenements and was therof seised in his Demesne as of Fee-tail and the sayd Mary in the life-time of the sayd Alice proved the Testament of the sayd Thomas Brown and the sayd William did not pay the sayd 26 l 13 s. 4 d. to the sayd Mary nor any part therof according to the Will and the sayd Martha being Daughter and Heir of the said Thomas therupon entred into the sayd Tenements and did let the sayd Moyety of which the sayd Action was brought to the sayd Ward for two years upon which the sayd Downing in the right and by the commandment of the sayd William re-entred and expelled the sayd Plaintiff buâ— the conclusion of the Verdict was not upon the expulsion but only if the entry of the sayd Downing shall be adjudged lawfull then they find the Defendant not guilty and if it were not lawfull then they find him guilty Fennor the Estate of the sayd William is conditional by the Will to wit that he shall pay to Thomas the 40 Marks according to the Will because the Will is that the sayd money shall be payd as is aforesaid or before the sayd moneys which were to be payd was expresly limitted to be payd upon the forfeiture of his Estate And further if it shall not be taken for a Condition then Thomas hath no remedy for the money to be payd to him and although it be limitted to be payd but to Thomas who was dead before the day of payment of it yet it shall be taken as a duty limited to him which shall be paid to his Executors because that a time certain is limited for the payment of it to wit when the Land is come to the sayd William which is by the death of the sayd Alice but if no time had been limitted for the payment of it and they had died before the payment of it it had been otherwise And it being a condition in William albeit it descend upon him as well upon him as upon the Heir of the sayd Thomas yet it remains a good Condition for the part of the Heir of the sayd Thomas not determined by the descent of the other part upon the Heir of the sayd William And further he sayd that here the Condition shall not be sayd to be broken but upon refusall of payment by the sayd William as in the case of George to whom it refers by the words as is aforesaid which refusall is not found and therfore the Plaintiff shall be barred Clench The Executors of the said Thomas know not when nor at what place to demand it and therfore he thinks that the said William ought to have tendred the money to the said Executrix at his perill Popham The payment limited to be made by the said George is at his first entry after the death of Alice and then to pay 40 s. and so yearly untill 40 Marks are paid to the sayd William and therupon 40 s. yearly to the sayd Thomas untill other twenty Marks are paid to him so that this is the form of the payment to wit at his entry as well for the place as the time for it cannot be made at his entry unless upon the Land it self and therfore by the purport of the Wil the Land shall be taken for the place where the payment ought to be made for avoiding the inconvenience which otherwise will ensue As if I am bound to pay to you 20 l. upon your first coming to such a place this place shall be taken for the place where the payment shall be made And wheras it is said further in the Will and so to pay yearly 40 s. untill the twenty Marks are paid to William this payment also by the words and so to pay yearly c. shall be at the same place at the end of every year upon the next day after the end of it or otherwise there will be no certainty when it shall be paid and therfore the first day of every year shall be the very day of payment and this also by virtue of the said words and so yearly And at the last day of payment by George to William or Thomas there ought to be paid but 26 s. 8 d. because that then there remains no more to be paid of the summs limited to be paid to them And when the Will here hath finished with George for that which he is to pay it goes further and if he refuseth to pay the said summs to William and Thomas in manner and form aforesaid then he wils that all the said Lands shall remain to the said William and his Heirs for ever paying yearly c. and so there is an express penalty to George if he refuse to make payment to wit that he shall loose the Land for default of payment made by George by the word paying annexed to the Estate which is a Condition but he conceived that this last payment to be made to Thomas is not to be made upon any penalty nor that a Condition is to be implyed in it although Thomas hath no remedy for it but in conscience because it is a meer confidence put in William to pay it And he said that he was the rather moved to be of this opinion because every one of the precedent Limitations was with an expresse Condition annexed to them as to George if he refuse c. But when William is to have but an Estate-tail upon the determination of the Estate made to George for default of Issue there he saith nothing but that the said William shall pay to the said Thomas fortie Marks as is aforesaid which is but a declaration of his intent that he put confidence in him for the payment of it and did not bind himself upon condition as in the other cases which he might have done by expresse words of condition if his intent had been so as well as he did in the other cases if his purpose had been so and the words that he shall pay as is aforesaid is to be understood for the place and time when it shall be paid according as George ought to pay it And it doth not seem to stand with reason to expound it for a Condition to destroy the Remainder limited to the said Thomas but if it shall be a Condition upon a relation because of the words that he shall pay it as aforesaid mentioned that the payment ought to be paid to the Executor of the said Thomas
that it shall be then holden as if no Adjournment had been the Essâ—ines had been the first day of Tres Trin. and the full Term had not been untill the fourth day which was the last day of the Term quod nota and so it was of the Adjournment which hapned first at Westminster and afterwards at Hertford from Michaelmas Term now last past Michaelmas Term 35 and 36 Eliz. Gravenor versus Brook and others 1. IN an Ejectione firmae by Edward Gravenor Plaintiff against Richard Brook and others Defendants the case appeared to be this Henry Hall was seised in his Demesne as of Fee according to the custom of the Mannor of A. in the County of D. of certain customary Tenements holden of the said Mannor called Fairchildes and Preachers c. In the third year of Henry the 8th before which time the customary Tenements of the said Mannor had alwaies been used to be granted by Copy of Court Roll of the said Mannor in Fee-simple or for life or years but never in Fee-tail but then the said Henry Hall surrendred his said Copy-hold Land to the use of Joane his eldest Daughter for her life the remainder to John Gravenor the eldest Son of the said Joane and to the Heirs of his body the Remainder to Henry Gravenor her other Son and the Heirs of his body the Remainder to the right Heirs of the said Henry Hall for ever wherupon in 3 H. 8. at the Court then there holden a grant was made by Copy of Court Roll accordingly and Seisin given to the said Joane by the Lord accordingly Henry Hall died having Issue the said Joane and one Elizabeth and at the Court holden within the said Mannor 4 H. 8. the death of the said Henry Hall was presented by the Homage and that the said Daughters were his Heirs and that the Surrender made as before was void because it was not used within the said Mannor to make Surrenders of Estates tails and therupon the said Homage made division of the said Land and limited Fairchilds for the purparty of the said Joane and Preachers for the purparty of the said Elizabeth and Seisin was granted to them accordingly Elizabeth died seised of her said part after which 33 H. 8. Margaret her Daughter was found Heir to her and admitted Tenant to this part after which Joane dyed seised of the said Tenements as the Law will And after the said Margaret takes to Husband one John Adye who with his said wife surrendred his said part to the use of the said John Adye and of his said wife and of their Heirs and afterwards the said Margaret died without Issue and the said John Adye held the part of his said wife and surrendred it to the use of the said Richard Brook and of one John North and their Heirs who were admitted accordingly after which the said John Gravenor died without Issue and now the said Henry Gravenor was sole Heirs to him and also to the said Henry Hall who had Issue Edward Gravenor and dyed the said Edward entred into the said Lands called Preachers and did let it to the Plaintiff upon whom the said Richard Brook and the other Defendants did re-enter and eject him And all this appeareth upon a speciall Verdict And by Clench and Gawdy an Estate tail cannot be of Copyhold Land unlesse it be in case where it hath been used for the Statute of Donis conditionalibus shall not enure to such customary Lands but to Lands which are at common Law and therfore an Estate tail cannot be of these customary Lands but in case where it hath been used time out of mind and they said that so it hath been lately taken in the Common Bench But they said that the first remainder limited to the said John Gravenor here upon the death of the said John was a good Fee-simple conditional which is well warrantes by the custom to demise in Fee for that which by custom may be demised of an Estate in Fee absolute may also be demised of a Fee-simple conditionall or upon any other limitation as if I. S. hath so long Issue of his body and the like but in such a case no Remainder can be limited over for one Fee cannot remain over upon another and therfore the Remainder to the said Henry was void But they said that for all the life of the said John Gravenor nothing was in the said Elizabeth which could descend from her to the said Margaret her Daughter or that might be surrendred by the said Margaret and her Husband and therfore the said Margaret dying without Issue in the life time of the said John Gravenor who had the Fee-simple conditionall nothing was done which might hinder the said Edward Son to the said Henry Gravenor of his Entry and therfore the said Plaintiff ought to have his Iudgment to recover for they took no regard to that which the Homage did 4th year of Hen. 8. But Fennor and Popham held that an Estate tail is wrought out of Copy-hold Land by the equity of the Statute of Donis conditionalibus for otherwise it cannot be that there can be any Estate tail of Copyhold Land for by usage it cannot be maintained because that no Estate tail was known in Law before this Statute but all were Fee-simple and after this Statute it cannot be by usage because this is within the time of limitation after which an usage cannot make a prescription as appeareth 22 23 Eliz. in Dyer And by 8 Eliz. a Custom cannot be made after Westm 2. And what Estates are of Copyhold land appeareth expresly by Littleton in his Chapter of Tenant by Copyhold c. And in Brook Title Tenant by Copyhold c. 15 H. 8. In both which it appeareth that a Plaint lyeth in Copyhold Land in the nature of a Formedon in the Descender at common Law and this could not be before the Statute of Donis conditionalibus for such Land because that before that Statute there was not any Formedon in the Descender at common Law and therfore the Statute helps them for their remedy for intailed Land which is customary by equity Add if the Action shall be given by equity for this Land why shall not the Statute by the same equity work to make an Estate intail also of this nature of the Land We see no reason to the contrary and if a man will well mark the words of the Statute of Westm 2. cap. 1. he shall well perceive that the Formedon in Descender was not before this Statute which wills that in a new case a new remedy may be given and therupon sets the form of a Formedon in Descender But as to the Formedon in the Reverter it is then said that it is used enough in Chancery and by Fitzherbert in his Natura brevium the Formedon in the Descender is founded upon this Statute and was not at Common Law before And the reason is because these Copyholds are now become by usage to be
this Thomas Plain was seised in his Demesne as of Fee of a Messuage in S. and so seised did let it to the Defendant for divers years yet to come rendring Rent payable at four usuall Feasts of the year the Lessee entred accordingly after which the said Plain by Bargain and Sale enrolled conveyed the Reversion therof to the said Humble and his Heirs and before the Feast of the Annunciation of our Lady 35 Eliz. to wit the 1. day of February in the same year the said Oliver assigned over his whole Term to one Southmead who before the same Feast entred accordingly and for the Rent due at the Feast the Annunciation of our Lady the Plaintiff brought this Action And it was agreed by the whole Court that the Action would not lie against him for although Plain if he had not aliened the Reversion over might have had this Action against the said Oliver notwithstanding that he had assigned over his Term before for the privity of contract which was between them in as much as they were parties to it of either part yet the Grantee of the Reversion shall not have advantage of the privity he being a meer stranger to the Contract and now was but privy in Law by the Bargain and therfore now he hath no remedy but against him who had the Estate at the time when the Rent hapned to be due and this is Southmead and not Oliver The Roll of this case is in the Kings Bench Hill 36. Eliz. Rot. 420. Mich. 36 37 Eliz. In the Kings Bench. Button versus Wrightman 1. IN an Ejectione firmae between John Buâ—ton Plaintiff and Etheldred Wrightman Widow and other Defendants for a House and certain Lands in Harrow The Case upon a speciall Verdict was this The Dean and Chapter of Christs Church in Oxford were incorporated by K. H. 8 by his Letters Patents dated 4. Novemb. 38 H. 8. by the name of the Dean and Chapter of the Cathedrall Church of Christ c. Oxford of the Foundation of King Henry the 8th and so to be called for ever after which the said Dean and Chapter was seised in their Demesne as of Fee of the said House and Land and so being seised by the name of the Dean and Chapter Ecclesiae Cathedralis Christi in Accademia Oxon. ex fundatione Reg. H. 8. enfeoffed Edward late Lord North therof by their Deed hearing date the 21. day of April 1. E. 6. who afterwards dyed and the now Lord North entred and did let it to the Plaintiff who was ousted by the Defendant claiming the said House by a Lease made by the said Dean and Chapter in the time of Queen Elizabeth for divers years yet to come and whether his entry were lawfull or not was the question and all depends upon the mis-naming of the Corporation But it was found that the City of Oxford and the Vniversity of Oxford were all one and that the Town of Oxford was made a City by the Charter of King H. 8. And by Fennor the Feoffment made to Edward Lord North for the misnaming of the Corporation was void for he said that Accademia villa de Oxford are divers in name and divers in nature for the Vniversity is to the Schollars and learned men there and the Town for the Inhabitants and the name of a place is a principal thing in a Corporation which in a new Corporation ought to be precise according to the very Letter of the Charter therof And therfore in the case of Chester it was agreed that Cestria being omitted the Charter for the Dean and Chapter there had been void But by Popham Gawdy and Clench this is not such a mis-naming as to the place which shall make the Feoffment void for suppose it had been Decanus Capitalis Ecclesiae Cathedralis Christi in Civitate Oxon. it had been good for Oxon. Civitas Oxon. are one and the same So it is if an Hospitall be erected by the name of the Hospitall of S. Johns in S. Clements and they make a Grant by the name of the Hospitall of S. Johns in the Parish of S. Clements it is good for it appeareth to be the same And here if a man will say that it shall go to the Vniversity of Oxford this every one conceives to be the Town of Oxford and so of Cambridge and therfore in 8 H. 6. it was agreed to be a good addition for the place in an Action personall against such a one Chancellor of the Vniversity of Oxford and so it is against J. Rector of the Parish Church of Dale without any other addition for the place yet the Statute is that it ought to be named of what Town Hamlet or place the party is And by Popham the place in a Corporation may well be resembled to the Sur-name of a man and as a Grant made by any persons Christian name as John Thomas c is not good so in a Corporation it is not good to say Dean and Chapter Mayor and Comminalty and the like without saying of what place And anciently men took most commonly their Surnames from their places of habitation especially men of Estate and Artizans often took their names from their Arts but yet the Law is not so precise in the case of Sur-names and therfore a Grant made by or to John Son and Heir of I. C. or Filio juniori I. S. is good But for the Christian name this alwaies ought to be perfect So in the case of a Corporation it sufficeth to have a sufficient demonstration of the place where the Corporation is albeit it be not by the precise words comprised in the Charter as in naming Accademia Oxon. pro Villa Oxon and it is common of which I have seen divers Charters where a Town was incorporated by the name of Mayor and Comminalty of such a Town as Bristoll Exeter and others which afterwards have been made Cities and yet Charters made to them and Grants made by them by the name of Mayor and Comminalty of the City is good but more precisenesse is vsed in the body of the name of a Corporation before the place to which they are annexed and yet in them that which is but an ornament to the name comprehended in the Charter shall not hurt the Grant as of Chapiter of S. George of Windsor if it be of S. George the Martyr and the like the Grant by such a name is good because the Martyr is but an addition of Ornament to the name comprised in the Charter and it is no other but the same in re vera So here if it had been Domini nostri Jesu Christi because it is the same and is but an ornament to the word Christ comprised in the Charter and so should it be also if it had been Christi filii Dei Salvatoris nostri because it is but a true addition to the same wherupon Iudgment was given for the Plaintiff as appeareth in the Kings Bench Pas
And if this doth not passe nothing can passe which was in the Tenure of the said Brown because he had nothing in the places comprised in the Patent But it was agreed by all the Court that it shall not passe by the said Patent in this case for the word illa is to be restraind by that which follows in the Patent where it depends upon a generality as here and that it refers but to that in Wells as the liberty of that which was parcell of the possessions of the said Hospitall and in the Tenure of the said John Brown And if it were not of these possessions or not in Wells c. or not in the Tenure of the said John Brown it shall not passe for the intent of the King in this case shall not be wrested according to the particular or the value which are things collaterall to the Patent but according to his intent comprised in or to be collected by the Patent it self And Popham said that by Grant of omnia terras Tenementa Hereditamenta sua in case of the Queen nothing passe if it be not restraind to a certainty as in such a Town or late parcell of the Possessions of such a one or of such an Abbey or the like in which cases it passeth as appeareth by 32 H. 8. in case of the King But if it be Omnia terras tenementa sua vocat D. in the Tenure of such a one and in such a Town and late parcell of the possessions of such a one there albeit the Town or the Tenant of the Land be utterly mistaken or that it be mistaken of what possessions it was it is good for it sufficeth that the thing be well and fully named and the other mistakes shall not hurt the Patent And the word of Ex certa scientia c. will nof help the Patent in the principall case And the case of 29 E. 3. is not to be compared to this case for it was thus The King granted the Advowson of the Priory of Mountague the Prior being an Alien to the Earl of Salisbury and his Heirs for ever And also the keeping and Farm with all the Appurtenances and Profits of the said Priory which he himself had curing the War with the keeping of certain Cellâ— belonging to the said Priory the said Earl died William Earl of Salisbury being his Son and Heir and within age wherupon the King reciting that he had seised the Earls Lands into his hands after his death for the Nonage of the Heir he granted to the said Earl all his Advowsons of all the Churches which were his Fathers and all the Advowsons of the Churches which belong to the Prior of Mountague to hold untill the full age of the said Heir quas nuper concessit prefat Comiti patri c. In which case although the King had not granted the Advowsons to the said Earl the Father aforesaid by the former Patent because no mention was of the Advowsons therof yet they passe by this Patent notwithstanding that which follows after to wit and which he granted to the Father of the Grantee But there it is by a Sentence distinct and not fully depending upon the former words as here to wit Omnia illa Messuagia c in Wells in the Tenure of the party parcell of the Possessions of such an Hospitall or Priory Quod nota and the difference And because the Defendant claimed under the first Patent and the Plaintiff by the latter Patent it was agreed that the Plaintiff should recover Which you may see in the Kings Bench. Harrey versus Farcy 7. IN an Ejectione firmae brought by Richard Harrey Plaintiff for the Moyety of certain Tenements in North-petherton in the County of Somerset upon a Lease made by Robert Bret against Humfrey Farcy Defendant upon not guilty and a speciall Verdict found the case appeared to be this to wit That Robert Mallet Esquire was seised of the said Tenements in his Demesne as of Fee and so seised demised them to John Clark and Elianor Middleton for term of their lives and of the longer liver of them after which the said Tenements amongst others were assured by Fine to certain persons and their Heirs to the use of the said Robert Mallet for term of his life and after his decease to the use of John Mallet his Son and Heir of his body and for default of such Issue to the use of the right Heirs of the aid Robert Mallet After which the said Robert Mallet having Issue the said John Mallet Christian and Elianor Mallet died the said John Mallet then being within age and upon Office found in the County of Devon for other Lands holden of the Queen in Capite by Knights Service was for it in Ward to the Queen Afterwards the said John Mallet died without Issue during his Nonage and the Lands aforesaid therby descended to his said two Sisters to whom also descended other Lands in the County of Devon holden of the Queen in Capite by Knights Service conveyed also by the same Fine in like manner as the Lands in North Petherton the said Christian then being of the age of 22. years and the said Elianor of the age of 15. yeares upon which the said Christian and Elianor 12. Novemb. 31 Eliz. tendred their Livery before the Master of the Wards and before the Livery sued the said Christian took the said Robert Bret to husband and the said Elianor took to husband one Arthur Ackland after which in the Utas of the Purification of our Lady 32 Eliz. the said Robert Bret and Christian his wife levied a Fine of the said Tenements in North-petherton amongst others to George Bret and John Pecksey Sur conusance de droit come ceo que ils ont de lour done by the name of the Moyety of the Mannor of North petherton c. with warranty against them and the Heirs of the said Christian against all men who tendred it by the same Fine to the said Robert Bret and Christian and the Heirs Males of their bodies the remainder to the Heirs Males of the body of the said Christian the remainder over to the right Heirs of the said Robert Bret which Fine was engrossed the same Term of S. Hillary and the first Proclamation was made the 12th day of February in the same Term the second the first day of June in Easter Term 32 Eliz. The third the 8th day of July in Trinity Term next And the fourth Proclamation was made the 4th day of October in Michaelmas Term next after And the said Christian died without Issue of her body The 9th day of February 32 Eliz. between the hours of 3. 7. in the afternoon of the same day And the 22. of March 32 Eliz. the said Robert Bret by his writing indented dated the same day and year for a certain summ of money to him paid by the Queen bargained and sold gave and granted the said Teuements to the
to Charles late Lord Sturton Father to the said Iohn Lord Sturton and the said Charles Lord Sturton disseised the said Lady Sturton and levied a Fine of the said Land to Cottington and his Heirs with Proclamations according to the Statute and warranted it against him and his Heirs And the said Lord Charles dyed before the Proclamations past and the Warranty descended upon the said John Lord Sturton after which and before the Proclamations past the said Lady Sturton entred upon the said Cottington after which the said Lady died and after her death and all the Proclamations past the said John Lord Sturton as Heir in Tail entred and made the Lease to the said Okes upon whom Cottington the Defendant entred as under the right of the said Cottington the Conusee And I perceiving the Court strongly to incline upon the matter of Warranty that it shall bar the entry of the Heir and make a discontinuance against him according to the inference which is taken by Littleton in his Chapter of Discontinuance because the truth was and so acknowledged to the Court although it were omitted in the Verdict that the said Charles Lord Sturton was attained of Felony and Murther and so the blood corrupted between the said Charles and John Lord Sturton wherby in a new Action the Garranty had not hurt the Title of the said Lord John I then moved the Court upon the other point of the Fine with Proclamations and the Court also agreed in this point if the Warranty had not been that yet the Fine with Proclamations shall bar the said John Lord Sturton notwithstanding the entry made by the Lady Sturton were before the Proclamations past because that notwithstanding his regresse made the Reversion remains in Cottington not defeated by his regresse in respect of the Statute whch makes that the Fine remains effectuall against the Heir in Tail if nothing be done by him to undo it before the Proclamations past as by claim regresse and the like but the Act of a stranger shall not help him wherby Iudgment being therupon given against the said Okes the said John Lord Sturton stood satisfied and the Cottingtons enjoy the Land to this day wheras if this opinion of the Court had not been on a new Action the said Sir John might have been relieved against the Warranty And Gaudy said that this was a very good Case for the point upon the Statute in this case Earl of Shrewsbury versus Sir Thomas Stanhop 8. GIlbert Earl of Shrewsbury brought a Scandalum Magnatum against Gilbert Earle of Shrewsbury against Sir Thomas Stanhop in a Scandalum Magnatum Sir Thomas Stanhop Knight and it was upon the Statute Tam pro Domina Regina quam pro seipso c. For that communication was had between the said Sir Thomas and one Francis Fletcher of divers things touching the said Earl the said Francis at such a day and place said to the said Thomas My Lord the said Earl meaning is a Subject innuendo that the said Earl was a Subject of the now Queen the said Sir Thomas then and there said of the said Earl these slanderous words to wit he intending the said Earl is sorry for that meaning that the said Earl was sorry that he was then a Subject to our said Soveraign Lady the Queen that is his grief meaning that it was grief to the said Earl that the said Earl was Subjâ—ct to the Queen to the damage of the said Earl of 20000 l. To which the said Sir Thomas Stanhop said that a question was formerly moved between the said Earl and the Defendant touching the subversion and drawing away of certain Weares heretofore erected by the said Sir Thomas at Shelâ—ord in the said County of Nott. where the Action was brought to oust the River of Trent there that for the subversion therof a Petition was exhibited to the privy Councell of the Queen before the speaking of the said words by certain Inhabitants of the County of Lincoln and divers other places not known to the Defendant with the privity allowance and knowledge of the said Earl which Petition at the time of the speaking of the said words depended before the said Councell not determined wherupon at the day and place comprised in the Declaration there was Communication between the said Defendant and the said Francis Fletcher concerning their purpose to have the said Wears subverted and touching the said Petition upon which the said Francis said to the said Defendant the matter meaning the Petition aforesaid hanging undetermined before the Councell aforesaid is to be heard before the privy Councel meaning the aforesaid Councell of the Queen and what their Honours meaning the Councell aforesaid determine my Lord the aforesaid Earl meaning will willingly obey To which the said Francis then there answered saying My Lord the aforesaid Earl meaning is a Subject upon which the said Defendant they then having speech as well of the said Petition as of the order therupon to be taken by the said Councell answered saying the words comprised in the Declaration meaning that he was sorry and grieved that he was subject to the order to be made upon the Petition aforesaid by the said Councell and averred that this was the same speech upon which the Action was grounded upon which it was demurred in Law and for cause shewn according to the Statute it was alledged that the bar was defective because it is not alledged at what place nor by whom nor against whom the Petition was exhibited and also because that by the Bar the matter of the Declaration is not confessed avoided or traversed and also that the Bar was insufficient And it seemed to Fennor that the matter of the Bar had been sufficient if it had been well pleaded but the Plaintiff alledgeth the words to be spoken in one sence in the Affirmative and the Defendant shews matter also in the Affirmative which proves the words to be spoken in another sence then the Declaration imporrs and two Affirmatives can never make a good Issue and therfore the Defendant ought to have taken a traverse to that which is comprised in the Declaration and for want of this traverse the plea in Bar is not good Gawdy said that the Bar is not sufficient neither in matter nor form not in matter because that wheras Fletcher said that the said Earl was a Subject this can have no other sence but that he was a Subject to the Queen in his Allegiance and her Soveraignty and so much is drawn out of the course of their former speech and therfore the answer which the Defendant made to it refers to his subjection of alleagiance and not to the matter of obedience which he owed to the order of the said Councell and if it cannot have any other sence in good understanding he cannot help himself now by an Innuendo which is in it selfe according to common intendment contrary to that which the nature of the words
Grantor at his Election provided then afterwards that he shall charge his person is not good Causa patet And all agreed that upon a Rent granted upon equality of partition or for allowance of Dower or for recompence of a Title an Annuity doth not lye because it is in satisfaction of a thing reall and therfore shall not fall to a matter personall but alwaies remains of the same nature as the thing for which it is given And afterwards the same Term Iudgment was given in the Common Bench that the Plaintiff shall recover which is entred c. And in the same case Clark vouched that it was reported by Benloes in his Book of Reports where a Rent was granted out of a Rectory by the Parson who after wards resigned the Parsonage that it was agreed in the Common Pleas in his time that yet a Writ of Annuity lies against the Grantor upon the same Grant to which all who agreed on this part agreed that it was Law Butler versus Baker and Delves 3. IN Trespasse brought by John Butler against Thomas Baker and Thomas See this case in Cookes 3. Report foâ— 25 Delves for breaking his Close parcell of the Mannor of Thoby in the County of Essex upon a speciall Verdict the Case was thus William Barners the Father was seised in his Demesne as of fee of the Mannor of Hinton in the County of Glocester holden of the King by Knights-service in Capite and being so seised after the Marriage had between William his Son and heir apparant and Elizabeth the Daughter of Thomas Eden Esquire in consideration of the same Marriage and for the Joynture of the said Elizabeth assured the said Mannor of Hinton to the use of the said William the Son and Elizabeth his Wife and the Heirs of their two bodies lawfully begotten and died by whose death the Reversion also of the said Mannors descended to the said William the Son whâ—rby he was seised therof accordingly and being so seised and also seised of the Mannor of Thoby in his Demesne as of Fee holden also of the Queen by Knights-servivice in chief and of certain Lands in Fobbing in the said County of Essex which Land in Fobbing with the Mannor of Hinton were the full third part of the value of all the Land of the said William the Son and he made his Will in writing wherby he devised to his said Wife Elizabeth his said Mannor of Thoby for her life in satisfaction of all her Joynture and Dower upon condition that if she take to any other Joynture that then the Devise to her shall be void and after her decease he devised that the said Mannor shall remain to Thomas his Son and the Heirs Males of his body and for default of such Issue the remainder to Thomas brother of the said William for his life the remainder to hir first second and third Son and to the Heirs Males of their bodies and so to every other Issue Male of his body and for default of such Issue the remainder to Leonard Barners his brother and to the Heirs Males of his body the remainder to Richard Barners and the Heirs Males of his body the remainder to the right Heirs of the Devisor William the Son dies having Issue Thomas his Son and Grisell his Daughter Wife to the said Thomas Baker the said Elizabeth by Paroll in pais moved her Estate in the said Mannor of Hinton and after this entred into the said Mannor of Thoby after which the said Elizabeth died and Thomas the Son and Thomas the Uncle died also without Issue Male after which the said Leonard took one Mary to Wife and died having Issue Anthony Barners after which the said Mary took the said John Butler to Husband and after this the said Anthony assigned to the said Mary the said Mannors of Thoby in allowance for all her Dower wherby the said John Butler as in the right of his Wife entred into the said Mannor of Thoby wherby the said Thomas Delves by the commandment of the said Baker entred into the said Close of which the Action is brought as in right oâ— the said Grisell And whether this entry were lawful or not was the question which was argued in the Court in the time of the late Lord Wray and he and Gawdy held strongly that the entry of the said Delves was lawfull but Clench and Fennor held alwaies the contrary wherupon it was adjourned into the Exchequer Chamber But they all agreed that the Waiver made by the said Elizabeth by parole in pais was a sufficient Waiver of her Estate in Hinton and the rather because of the Statute of 27 H 8. cap. 10. the words of which are That if the Joynture be made after the Marriage that then the Wife surviving her Husband may after his death refuse to take such Joynture And now it was moved by Tanfield that Iudgment ought to be given for the Plaintiff for by the Waiver of the Wife the Inheritance of Hinton is now to be said wholly in the Husband ab initio and therfore that with Fobbing being a whole third part of the whole Land which now is to be said to be left to discend to the Heir of the Devisor as to Thoby is good for the whole and if so then no part therof descends to Grisell and therfore the entry of the said Delves in her right is wrongfull Coke Attorney-general to the contrary for he said That it is to no purpose to consider what Estate the Devisor had in the Mannor of Hinton by reason of this Waiver made by his Wife Ex post facto after his death But we are to see what Estate the Devisor had in it in the view of the Law at the time of his death before the Waiver and according to it the Law shall adjudge that he had power to make his Devise by means of the Statute and at this time none can adjudge another Estate in him but joyntly with his wife of which Estate he had no power to make any disposition or to devise it or to leave it for the third part to his Heir for the Statute which is an explanatory Law in this point saies that he ought to be sole seised in such a case And further the Statute of 34 H. 8. at the end is that the Land which descends immediatly from the Devisor shall be taken for the third part and this Land did not descend immediatly for it survived to the Wife untill she waived it and therfore this Land is not to be taken for any third part which the Statute purposed to have been left to the Heir and therfore so much shall be taken from Thoby as with Fobbin shall be a third part to descend wherbâ— Grisell the Heir hath good right yet to part of Thoby and therfore the entry of the said Delves in her right by commandment of her husband not wronfull Periam chief Baron Clench Clark Walmsley and Fennor That now
the Assise in manner and form as the Writ supposeth And further that the said West therof disseised the said Mounson namely of the Tenements in the will of one Mounson And did not find either the words of the Will nor the Will it self what it was c. And the Iustices of Assise upon this Verdict upon advice with the other Iustices gave Iudgment that the Plaintiff shall recover c. upon which a Writ of Error was brought in the Kings Bench where it was moved that the Iudgment was erroneous First because the Iury have not found that the Defendant was Tenant of the Free-hold agreeing with the form of the Plea for the Writ of Assise doth not suppose him to be Tenant of the Free-hold and therfore the Verdict in this point not fully found The second Error is that the Seisin of the Plaintiff is not required of according to the charge given to them as well as the Disseisen for the charge was that they should enquire of the Seisen of the Plaintiff c. But to both these the Court answered that the Verdict is well enough notwithstanding these exceptions for every Assise brought supposeth that there is a Disseisor and a Tenant named in it then this Assise being brought against a sole person supposeth him to be a Disseisor and Tenant also and therfore the Verdict saying that he was Tenant as the Writ supposeth is now as strong in this case as if they had found that he was Tenant of the Free-hold for the Tenant of the Free-hold ought to be named in the Writ But if the Assise had been brought against two or more such a Verdict had not been good for it sufficeth if any of them be Tenant of the Freehold and then the Writ doth not suppose one to be Tenant more then another but supposeth one Tenant to be named in the Writ And therfore in such a case the finding ought to be speciall to wit that such a one is Tenant of the Free-hold or that there is a Tenant of the Free-hold named in the Writ But where one only is named in the Writ to be Disseisor and Tenant it is sufficient to find as here for by this it is certainly found that he is Tenant of the Free-hold And for the other point although it be a good direction for the Iudges to the Iury wherby they may the better perceive that there ought to be a Seisin in him or otherwise there cannot be a Disseisen by the other yet in Deed he cannot be a Disseised who was not then seised But the Assise having found the Disseisen the Seisen in Law is found included in the Disseisen But for the point moved that the Verdict was not perfect in as much as they found the Disseisen with a Nisi it seemed to Gawdy that the Iudgment upon this Verdict was erronious as where a Verdict in another Action is imperfect a Venire facias de novo shall be awarded to try the Issue again And if Iudgment be given upon such a Verdict it is error so here the Verdict in this point being incertain there ought to have been a Certificate of Assise to have this better opened But the three other Iustices held as the case is that the Verdict in this point is certain enough for that which cometh before the Nisi as it is placed is meerly nugator as in the case of the Lord Stafford against Sir Rowland Heyward the Iury found Non assumpsit but if such Witnesses say true as they believe they did Assumpsit c. it was but a meer nugation But it seemed to Popham that if the Verdict had been if the words of the Will do not passe the Land then that he disseised and if they passe then that he did not disseise there if the words of the Will be not found the Verdict had been all imperfect but here the Verdict is full and perfect before the Nisi c. and therfore the Iudgment was affirmed Holme versus Gee 8. A Formedon in Descender was brought by Ralph Holme Demandant against Henry Gee and Elizabeth his Wife Tenants and the Case wâ—s thus Ralph Langley and others gave two Messuages and a Garden with the Appurtenances in Manchester to Ralph Holme the great Grandfather of the Demandant and to the Heirs of his body begotten after which the same great Grand-father by Deed indented dated 20. September 14 H. 7. enfeoffed Iohn Gee of one of the said Messuages and of the said Garden rendring yearly to the said great Grand-father and his Heirs 13 s. 4 d. a year at the Feasts of S. Michael and the Annunciation by equal portions after which the said Iohn Gee died seised of the said Messuages and Garden and it descended to Henry Gee his Son and Heir after which the said great Grand-father by his Indenture bearing date 6. Martii 12 H. 8. enfeoffed the said Henry Gee of the other Messuages rendring also to him and his Heirs yearly 13 s. 4 d. at the said Feast aforesaid by equal portions after which Holme the great Grand-father died Stephen Holme being his Son and next Heir who was seised of the Rents aforesaid and afterwards also died seised Robert Holme being his Son and Heir after which the said Henry Gee died seised of the said two Messuages and Garden and they descended to Eliz. his Daughter and Heir who took to Husband one Richard Shalcroft and had Issue the said Elizabeth wife of the said Henry Gee Tenant in the Formedon after which the said Richard Shalcroft and his wife died after which and before the marriage had between the said Henry Gee and Elizabeth now Tenants in the Formedon the said Elizabeth enfeoffed one Richard Greensearch of the said Messuages and Garden after which to wit at the Feast of the Annunciation of our Lady 3 Eliz. the said Henry Gee husband to the said Elizabeth paid 13 s. 4 d. for the said Rent reserved as is aforesaid to the said Robert Holme after which to wit on Munday next after the Assumption of our Lady at Lancaster before the Justices there a Fine was levied with Proclamations according to the Statute between Thomas Aynsworth and Thomas Holden then being seised of the Tenements aforesaid Complainants and the said Henry Gee and Eliz. his wife Deforceants of the Tenements aforesaid wherby the Conusance was made to the said Thomas and Thomas who rendred them to the said Henry Gee and Eliz. his wife and to the Heirs of their bodies the Remainder to the right Heirs of the said Henry the five years past after the Proclamations in the life of the said Robert Holme after which the said Robert died and Ralph his Son and Heir brought the Formedon upon the Gift first mentioned and the Tenants plead the said Fine with Proclamations in Bar and the Demandant replyed shewing the severall discontinuances made by the great Grand-father as aforesaid and the acceptance of the said Rent by the said Robert by the hands of
Terme in the same Court WEld of the Inner Temple moved for a Prohibition to the Ecclesiasticall Court at Worcester and shewed for cause 1. That the suit there was for money which by the assent of the greater part of the Parishioners of D. was assessed upon the Plaintiffe for the reparations of the Church to wit for the recasting of their Bels the truth is that the charge was for the making of new Bels where there were four before whereby it appears that it is meerly matter of curiosity and not of necessity for which Parishioners shall not he liable to such taxations and he relied upon 44. E. 3. 19. by Finchden 2 The party there is overcharged of which the Common Law shall Judge 3 The Party hath alledged a Custome that he and all those who hath an estate in such a Tenement have used to pay but 11 s. for any reparation of the Church But the Prohibition was denied and by Doderidge in the Book of 44 E. 3. there was a By-law in the case to distrain which is a thing meerly temporal for which the Prohibition was granted per Curiam in this case the assessment by the major part of the Parishioners binds the party albeit he assented not to it and the Court seemed to be of Opinion that the Custome was not reasonable because iâ—â—aid a burthen upon the rest of the Parish Littleton of Counsell of the other side suppose the Church falls shall he pay but 11 s. Whitlock If the Church falls the Parishioners are not bound to build it up again which was not denied by Justice Jones The same Term in the same Court A Prohibition was prayed because a person had libelled in the Ecclesiasticall Court for the tenth part of a bargain of Sheep which had depastured in the Parish from Michaelmas to Lady day and the party surmised that he would pay the tenth of the Wooll of them according to the custome of the Parish But the Prohibition was denyed for as Doderidge Iustice sayd by this way the person shall bee defrauded of all if he shall not have his recompence for now the Sheepe are gone to another Parish and he cannot have any Wooll at this time because it was not the time of sheering Nota per Whitlock de animalibus inutilibus the Person shall have the tenth part of the bargain for depasturing as Horses Oxen c. but de Animalibus Utilibus he shall have the Tith in specie as Cowes Sheep c. The same Term in the same Court UPon an Issue joyned in an Ejectione firmae it was found for the Plaintiff and Lewkoor moved in arrest c. because the Ejectione firmae was de Messuagio â—ive Tenemento which is not good for the incertainty and so it was resolved 12. Jac. in this Court and Ejectione firmae lies not De Tenemento Co. lib. 11. 54. Savils case And it was resolved in the Exchequor-chamber that it lies not de pecia terrae and in this Court in Rhetorick and Chappels Case it was resolved that it lyes not De Mess Tenemento The same Term in the same Court Sir Robert Browne against Sir Robert Stroud IN debt upon an Obligation for performance of certain Covenants contained in certain Indentures made between the Parties aforesaid and the Covenant upon which the question did arise was this R. B. being seised of the Mannor of Dale S. R. S. of the Mannor of Sale they exchanged the one for the other and the Mannor of R. B. being more worth then the Mannor of R. S. R. S. covenanted to pay for the said Mannor 1200 l. and no time was limited when the money should be payd and the money not being payd within a year after R. B. bargained and sold the said Mannor by Deed indented and inrolled to J. S. and his Heirs and afterwards brought an Action of Debt against the said R. S. for the said 1200 l. who pleaded this mater in Bar and Jermy argued for the Plaintiff that this Plea shall not discharge the Defendant of the said Covenant for it is a reciprocall covenant and he ought to sue the other Party for the breach of the covenant and it is a perfect bargain Dyer 30. 14. H. 8. 9. and here the Agreement is in writing and it is good albeit there be no limitation when the money shall be payd 37. H. 6. 9. Calthrop for the Defendant that the Action could not lyâ— for the contract is Executory and therefore is not to pay the money till he hath the Mannor for the Covenant is that pro Maner c. he should pay him 1200 l. and the word pro implies a condition and consideration and being excecutory on the one part shall be also executory on the other part 9. E. 4. 20. 21. Abridg. in Plowden 134. in Browning and Bestons case 15. E. 4. 4. If A. grant to B. all the ancient Pale and for them B. grants that he will make new Pale for A. if B. cannot have the old Pale he shall be excused from making the new Pale for he cannot have the one without doing the other 6. E. 6. Dyer 75. The contract was pro 20. which makes a condition 15. H. 7. 10. by Fineaux If a man covenant with me to serve me for a yeare and I covenant to give him 10 l. he shall have an Action for the 10 l. although hee do not serve me otherwise if I covenant to give him 10 l. for his service Also there is no time limited when the payment shall be made true it is that in Co. lib. 6. 30. when the act to be done is a transitory act and no time is limited there it ought to be done in convenient time but the Law shall judge of the conveniency of this time and the Law will never judge the time of payment to be before he hath the Mannor pro quo c. In many cases when no time is limited the Law will appoint a time as appeareth in 33. H. 6. 48. and Perkins 799. But now in our case the Law will never appoint that this money shall be payd because the other party hath disabled himselfe to perform his part like to Sir Anthony Maines case Co. lib. 5. 21. Doderidge The bargain is not perfect because no day of payment is limited and the other shall have no Action of Debt for the money before he hath the Mannor Jones If I covenant to make a Feoffment to J. S. and he covenant in consideration of that Covenant to pay me 10 l. he shall have an Action of Debt against me before he hath made the Feoffment And at another day in Trinity Term. 3. Car. Noy argued for the Plaintiff and opened the case thus Amongst other Covenants in certain Indentures between them it was agreed that wheras Sir R. Brown the Father was sâ—ized of the MaÌ„nor of Gadmaston with the Advowson appendent Sir R. Stroud of the MaÌ„nor of D. within the same CouÌ„ty that there