upon the Summons pone or Distress the Outlary lies the Process is returnable from fifteen Dayes to 15 Dayes an Essoin lies In this Action there are two Judgements the first Judgement is that the Defendant shall account because he hath not accounted before in this first Judgement the Plaintiff shall not recover Costs or Damages but a Capias ad computand shall issue and if a Non est inventus shall be returned thereupon then an Exigent and when the Defendant by the rigor of the Law is imprisoned yet the Court doth in favour of the Defendant take Bail for he shall account before Auditors which the Court shall appoint which shall be the Officers of the Court to audit the Account and he shall appear from day to day before the Auditors at every day and place assigned by the Auditors untill the Account shall be determined and before the Auditors the Plaintiff or Defendant may joyn Issue or demurr upon the Plea pleaded before the Auditors and if any of the parties shall make Default and shall not appear then if after Appearance the Defendant shall not plead or if he shall joyn Issue or joyn in a Demurrer the Auditors shall certifie that to the Court and the Court shall proceed to the matter certified by triall of the Issue if it be joyned or by arguing the Demurrer as the cause shall require and if the Plaintiff shall make Default or shall not prosecute or if the Defendant shall not answer they may commit him to the Fleet and if Verdict pass for the Plaintiff Costs and Damages shall be recovered by reason of the inter-pleadings and the Plaintiff shall recover his Goods or Moneys demanded with his Costs and Damages and a Fisa or Elegit or casa shall be awarded and if a Non est inventus be returned then an Outlary after Judgement An account against a Bailiff of Lands shall be brought in the County where the Lands lie In every case in account where an Attachment may be returned an Essoyn lies Where the Defendant is charged to account for Moneys received from the hands of the Plaintiff the Defendant may wage his Law and likewise for Goods delivered to be sold but it is otherwise where the Receit is by the hands of a Testator or of any other then the Plaintiff That after a year and a day after Judgement given every Action shall be revived by Scire facias which is given by the Statute for all Actions at Law if the Plaintiff shall not obtain his Execution within a year and a day he shall be driven to bring a new Action Or if a Defendant be charged as Receiver by Indenture he shall not be admitted to plead that he was not a Receiver If the Plaintiff die before the second Judgement the Writ shall abate and no Scire facias lies for the Executor if the Defendant die before the second Judgement If two be adjudged to account and a Ca. exfa. issue and one appear and the other be outlawed he that appears shall account alone for that the Plaintiffs Process is determined against the other and so if one die the other shall account alone and if one be adjudged to account and will not he shall be committed to the Fleet. That if I deliver Goods to one to the value of 100. l. to traffique with for my use and he sels them for 10. l. I have no remedy but if my Bailiff buy a thing for 10. l. which is not worth it he shall not be allowed it Account lies not before a Sheriff for that he can assigne no Auditors If two be joyntly possest of Goods one of the two deliver the Goods for Merchandise he onely shall bring the Action An Account lies not against an Executor or Infant An Account lies not for a Park of Deer Matter that is in discharge of an Account shall not be pleaded in Barr of the Action for the Judges are Judges of the Action and not of the Account If Money be delivered to render an Account an Account lies but if it was delivered to keep untill the Plaintiff shall require Account doth not lie but Detinue If the Plaintiff account upon Witness of the Receit the Defendant shall not wage his Law If an Account shall be brought for Goods in the Declaration the Plaintiff declares that they were in his house whereas indeed they were not it is good HArrington versus Dean Hill 10. Jac. rotulo 3230. Action of Account render brought against the Defendant for the Receit of Money by the hands of one Rotheram for 200. l. The Defendant pleads that he was not a Receiver for to render an Account the Jury finde it specially that Rotheram was indebted to the Plaintiff in 200. l. and the Plaintiff required the Defendant to receive the said 200. l. and the Defendant required Rotheram to pay the 200. l. and Rotheram upon Request to him made desires the Defendant to borrow of any person 200. l. and to pay the Plaintiff and finde that the Defendant did borrow 200. l. of one Stanhop to pay the Plaintiff and Rotheram became bound to Stanhop for the payment of the said 200. l. and that the Defendant appointed his Wife to pay the Money to the Plaintiff and if upon the whole matter c. and Judgement was given that the Defendant was a Receiver THe Earle of Cumberland against Hilton The Clerk that entred the Cause had omitted the Charge which was for 400. l. and it was omitted in the Roll and Nisi prius and after a Verdict Excepon taken and amended by the Court. Assise IN an Assise Trin. 29. Jacobi rotulo 27. brought against Thacker and Elmer the Defendants come and say that there was no Tenants of the Tenements put to the view of the Recognisors of the Assise aforesaid nor at the time of purchasing the Writ to wit such a Day nor any time after and this they were ready to verifie and pray Judgement and if so then they say that they have done no injury or Disseisin of the Tenements with the appurtenances to the said W. T. and put themselves upon the Assise and the said W. T. doth so likewise therefore the Assise was taken between them and thereupon the Recognisors of the Assise say that the said E. E. at the purchasing of the original Writ of the Assise Videlicet such a Day were Tenants of the Tenement aforefaid with the appurtenances as of his Free-hold and that the said W. T. was seised of the Tenements aforesaid with the appurtenances in his Demesne as of Fee untill the said E. did unjustly and without judgement disseise the said VV. but not by force and armes and assess Damages to 12. d. and for Costs 6. d. and Judgement given that the said VV. should recover his Seisin of the Tenements aforesaid against the said E. by the view of the Recognisors of the Assise and his
pair of Stones in your Mill and pay a Rate for them then if you put on another pair of Stones new Tithes must be paid in kinde If one in Fee make a Lease for Life and after granteth a Rent-charge if the Grantors Cattle come upon the Ground I may distrain them although I cannot distrain the Tenant in Possession but the Grantor cannot avoid it If the condition of a Bond be to discharge a Messuage of all Incumberances then one may plead generally that he did discharge it of all Incumberances but if it be to discharge it of such a Lease then I must shew how If a man devise his Trees to his Executors to pay his Debts the Executor must in convenient time cut down the Wood. And so if a man sell his Trees the Vendee must sell them in a convenient time If I grant you out of my Mannour 10. l. per ann and recite but five pounds the Recitall shall not diminish the Grant And so if I grant you ten pounds out of my Mannor and recite 20. l. this shall not inlarge it If I infeoff two of Land habendum to me in Fee and habendum to the other in Fee they are Tenants in common In the Court of Wards one Dymack was a Purchasor by Bargain and Sale and before inrolment D. dies and after his Death the Indenture was inrolled the Question was whether his Son shall be in Ward for the Land and it was adjudged that he is Heir to the Land and is in by the Statute of 27 Eliz. of Bargains and Sales and not by the Statute of Uses My Lord Hobard held that if an Executor pay a Bond made upon a usurious Contract it shall be a Devastavit in the Executor and if he be bound to present one to a Church and he present one upon a Simonaical Contract the Bond is broken Hill 10. Jac. Resolved if one make a Lease of a Mannour reserving Rent and afterwards the Lessor grants the Reversion of forty acres thereof now if an Action of Debt be brought by the Grantee he may aver the rate of the Acre and if the Defendant plead Nil debet per patriam the Jury shall rate the value and although the value be found less by the Jury then the Plaintiff surmiseth yet the Plaintiff shall recover after the proportion For Acts in Law no Attornement is necessary as if a Lease made for years reserving a Rent which is assigned to a Woman for Dower she shall have the Rent without Attornement In Cambels case upon an Elegit returned that the Lessor was seised in Fee and that by vertue of the Judgement the moity was delivered to the Plaintiff and for the Rent reserved upon the Lease for years before Judgement If a man top a Tree under the growth of 21. years and suffer the body to grow and afterwards when the boughes are grown out again he doth lop and top it again I shall pay no Tithes although the Tree was not priviledged at the first cutting by the opinion of the whole Court If a Debt be recovered in a Court of Record that Debt cannot be assigned over to any man by the opinion of the whole Court Mich. 10. Jac. Pasch 14. If Money be to be paid upon proof made there the triall shall be the proof to be made before but if it be to pay Money within 3. Moneths after proof there proof must be made first but if it be upon proof before A. then proof being made before A. this extending proof shall tie the party but Warburton held the contrary and he resembled this to a surmise to have a prohibition which is no binding proof for the Jury may pass against the proof in the surmise when a Bond is to pay Money upon proof this is a legal proof by Law if it be laid generally to be paid by proof if it were by proof before two Justices or two Aldermen this shall be intended a sufficient proof when the Action shall be brought upon the Bond and if the Defendant say that due proof was not made then they shall say that before the two Justices c. it was proved by testimony before them and then the Judges shall judge whether it be a sufficient proof or not If I devise Lands to my Executors for three years for the payment of my Debts this is Assetts in the Executors hands but if I devise my Land to be sold for the payment of my Debts it is no Assets before it be sold Mich. 9. Jacobi It was held in the Common Pleas by the whole Court that in the Kings case the consideration of the Money paid is never to be proved Likewise in a common case of Bargain and Sale in consideration of Money paid where in truth none was paid yet it is good and the Bargainee is not tied to prove the Payment for the Bargainer may have an Action of Debt If a Legacy be granted out of Leases and a Suit in the Spiritual Court for this shall not be prohibited but otherwise it is if it were out of Fee Simple Lands HE le versus Frettenden Resolution upon two Cases upon the Statute of E. 6. for not setting forth of Tithes Videlicet A man possessed of Corn sels it and before two Witnesses sets out his Tithes and afterwards privately takes away his Tithes and the Parson sues him upon the Statute of treble Damages for not setting forth of Tithes and the Defendant proves by Witnesses that he set forth his Tithes yet this Fraud is helped for the words are without fraud or deceit In the second case one secretly sels his Corn to one who was not known and afterwards the Vendee commands the Vendor to cut the Corn which he doth and takes away the whole Corn without setting forth his Tithes and the Question was who should be sued for the Tithes and the Court held the first Vendor should be sued for it was fraudulent If a man be found guilty of Felony and after receives his Pardon he shall not be Legalis home to pass upon a Jury If a Venire facias be against an Arch-bishop the Venire facias shall be Tam milites quam alios liberos c. because he is a Lord of the Parliament If a man be obliged in a Statute staple his Copy-hold Land is not extendable but it is upon a Statute of Bankrupt If a man have Common in three Acres and purchase one of the three Acres his Common is extinct If a man of the Cinque Ports shall come to London he may be there arrested and shall not have the Priviledge of the Cinque Ports Difference between those things which are in the Prender and such things that are in the Render for if I take not such things as are in Prender according to my Prescription it is void If I have Estovers in Woods to be taken every other year if I
of the Statute are to have and injoy and Winch said it was within the Statute and so the Office of a Cursitor was within that Statute Exception was taken to an Action of Debt brought upon the Statute of E. 6. for not setting out of Tithes because the certainty of Loads of Corn were not expressed but it was held good notwithstanding HAwes versus Birch Hill 12. Jacobi rotulo 1843. An Action of Debt brought upon a Bond of 6. l. for the payment of 3. l. upon the 16. of April The Defendant pleads that an Estranger at the Defendants request the said 16. of April made an Obligation to the Plaintiff in lieu of the first Debt and adjudged naught by the whole Court for one thing in Action cannot be a satisfaction for another thing in Action but this being done by a stranger is good by no means Pasch 12. Jacobi The Court was of opinion that if Money be tendred and none ready to receive it and afterwards he to whom the Money is payable demands the Money and the other refuse to pay and afterwards an Action is brought and a Tender pleaded the Court held that the Defendant should pay Damages from the time that the Money was demanded FLeet versus Harrison Hill 13. Jac. rotulo 841. An Action of Debt brought against two Defendants one of them pleads Nil debet per patriam and the other lets a Judgement go by Default and he that waged his Law at the Day appointed performed it and Judgement that the Plaintiff should take nothing by his Writ for a Respectuatur of the Judgement was entred untill the other had done his Law WIlliamson versus Spark Mich. 13. Jac. rotulo 3511. Upon a cire facias brought against the Bail upon an Attachment of Priviledge The Defendant pleads a Release made after the Verdict and before Judgement which was before the Recognisance was forfeited and if the Recognisee may release before the Damages are ascertained or no was the Question and it seemed he might An Action of Debt brought against a Baker for a Fine imposed on him in a Court Leet and an Exception was taken because it was not alleadged that he sold Bread against the Assise of Bread made to sell for a man may make and bake Bread for his own use under the Assise limited BAcon versus Pain Trin. 14. Jac. An Action of Debt brought and declare that such a Day and Year the Defendant was a Brewer and for one Year then next following and that the Defendant the said Day at K. bought of the Plaintiff the fourth part of the Grains that the Plaintiff that Year next following should make in brewing for 3. l. to be paid upon Request The Defendant pleads that he ought him nothing and after a Triall an Exception was taken to the Declaration because the Plaintiff did not aver that he made Grains in that Year LOrd versus Huxly An Action of Debt brought on a Judgement thereupon and the Defendant taken in Execution upon that Judgement and afterwards the Plaintiff became Felo dese by which the Almoner seised of all his Goods and afterwards the Almoner would have acknowledged satisfaction of the Debt and Damages in that Judgement and doubted that he could not SAwyer versus Crompton Hill 14. Jac. rotulo The Plaintiff brought an Action of Debt for Costs given before the Judges of the Marshalsey newly erected 9 Jac. by Letters Patents of the same King within the Virge And the Plaintiff declared that whereas at the Court of the said King for the Houshold held at S. in S. within the Virge of the Houshold then at Whitehall such a Day and Year before T. B. Knight Marshall c. and F. B. c. Judges of the said Court to hear and determine all Pleas personal within the Virge between Persons not being of the Houshold arising by vertue of Letters Patents bearing Date such a Day and Year in due manner made came c. and the Court held a repugnancy in the Count and the whole Court against the Plaintiff If it had been brought upon the ancient Court it must be between two of the Houshold and they held that cost lay and the Exception was because the Plaintiff had not shewed the Grant to hold the Court. If a Bond be made to one and he doth not say in the Bond that it shall be paid to the Obligee in this case the Plaintiff must shew that it is to be paid to him though not expressed in the Bond. HOnne Executor of R. Hutton and E. May Pasch 40. Eliz. rotulo 433. An Action of Debt brought upon an Obligation with a Condition that the above bound T. G. or his Heirs do or shall at any time before the Purification of the blessed Virgin which shall be in the year 1596. according to the Custome of the Mannour c. Surrender into the hands of the Lord of the same Mannour for the time being all those c. to the use of the said R. Hutton his Heirs and Assignes for ever in such wise as the said R. Hutton his Heirs and Assignes shall or lawfully may by the custome of the Mannour be admitted c. or if after such Admittance the Premises shall be recovered against the said Rich. his Heirs or Assignes by one W. K. within four years then if he shall pay upon notice c. The Defendant pleads that the Plaintiff ought not to have his Action because the said R. Hutton after the making of the Bond and before the said Feast of the Purification which was in the year 1696. to wit the sixth of October 38 Eliz. at B. died The Plaintiff demurs and Judgement for the Plaintiff If one be indebted to one and he dieth intestate and after his Death Administration is committed to the Debtor this is no Release of the Debt If he marry the Executrix of the Debtee and the Executrix dieth the Husband shall be charged with the Debt after her Death VAughan versus Chambers Trin. 20. Eliz. rotulo 145. An Action of Debt brought upon a Bond the Defendant pleads the Statute of Usury and shews a corrupt Agreement for Money lent in the year 32. to be paid in 33. and afterwards in 35. a new Bond given for part of the first summ and it was pretended that this Bond was void but it was adjudged because the first Bond was no Corruption the later should not be LEech Attorney versus Phillips Executor of Phillips rotulo 3415. An Action of Debt brought for soliciting a Cause in the upper Bench and it was adjudged by the whole Court that an Action of Debt for Solicitors Fees would not lie but ought to bring an Action of the Case and afterwards the Court held an Action of the Case would not lie PAsch 12. Jac. Grove versus Jourdain An Action of Debt brought against an Administrator who pleads that the intestate was indebted to him
Carr. The Tenant in Dower before the value inquired of and Damages found brought a Writ of Error and by the opinion of the whole Court a Writ of Error would not lie for the Judgement is not perfect untill the value be inquired upon The Demand in Dower was of the third part of two Messuages in three parts to be divided and the Judgement was to recover Seisin of the third part of the Tenements aforesaid with the Appurtenances to hold to him in severally by Meets and Bounds and adjudged naught because they are Tenants in common and the Judgement ought to be to hold to him together and in common but if it had been in three parts divided it had been good Actions in Ejectment ALlen versus Nash Hill 5. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and a special Verdict upon a Surrender of Copy-hold Land which was to the use of the second Son for Life after the Death of the Tenant and his Heirs and it was adjudged not to be good in a Surrender for though it be good in a Will yet Implication is not good in a Surrender and in Copy-hold Cases a Surrender to the use c. this no use but an Explanation how the Land shall go if the Lord grant the Land in other manner then I appoint it is void if there be found Joynt-tenants and one Surrender to the use of his Will it was a Breach of the Joinder and the Will good EYer versus Bannaster Trîn 16. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and declared upon a Lease made by Ed. Kynaston to which the Defendant pleads not guilty and the Plaintiff alleadges a Challenge that the Wife of the Sheriff is Cosin to the Plaintiff and desires a Venire facias to the Coroners and the Defendant denied it and so a Venire was made to the Sheriff and at the Assises the Defendant challenges the Array because the Pannell was arrayed by the Sheriff who married the Daughter of the Wife of the Lessor and note the first Challenge was made after the Issue joyned and at the Assises the Defendant challenged as above and a demurrer to it and Hutton held that a Challenge could not be after a challenge except it were for some cause that did arise after the challenge made and that the party ought to rely upon one cause of challenge though he had many causes observe the Defendant could not challenge the Array untill the Assises but Husband held that a Challenge might be upon a Challenge but this challenge was adjudged naught by all the Judges HIll versus Scale Trin. 16 Jacobi rotulo 5. 18. the Plaintiff brought an Ejectione firmae and declares upon a Demise made to the Plaintiff by J. C. bearing date the first of January anno 15. and sealed and delivered the twelfth of January following to hold from Christmasse then last past for two years the Jury found a speciall Verdict and found the Lease and a Letter of Atturney to execute the Lease in this manner that the Lessor was seised of the Land in Fee and being so seised he made signed and sealed an Indenture of a Demise of the said Tenements and found it in haec verba this Indenture c. and they further found that the Lessor the said fifth day of January did not deliver the said Indenture of Demise to the Plaintiff as his Deed but that the Lessor the said fifth day of January by his writing bearing Date the same Day gave full power and authority to one C. to enter into all the premises and to take possession thereof in the name of the Lessor and after possession so taken to deliver the said Indenture of Demise to the Plaintiff upon any part of the premises in the name of the Lessor and find the Letter of Atturney in haec verba To all c. whereas I the said J. C. by my Indenture of Lease bearing date with these Presents have demised granted and to Farm let c. for and during the Term of two years c. and they further find that the said C. such a day as Atturney to the Lessor by vertue of that writing did enter into the Tenements aforesaid and took possession thereof to the use of the Lessor and immediately after possession so taken the said C. did deliver the said Indenture of Demise upon the Tenements as the Lessors Deed to the Plaintiff to have c. and the doubt was because the Lessor in the Letter of Attorney and said that whereas he had demised and if it were a Demise then the Letter of Attorney was idle but notwithstanding the Court gave Judgement for the Plaintiff WEeks versus Mesey An Ejectione firmae brought against two and one of them was an estranger and was in the house and the principall would not appear and the other appeared and pleaded non informat and the Court was acquainted with the proceedings and the Plaintiff prayed an habere facias possessionem and the Court told the Plaintiff that by that Writ and recovery he could not remove him that had Right when a Lease is made to bring an Ejectment of Land in divers mens hands then they must enter into one of the parcells and leave one in that place and then must he go unto another and leave one there and so of the rest and then after he hath made the last Entry there he sealeth and delivereth the Lease and then those men that were left there must come out of the Land and this is a good executing of the Lease and Pasch the ninth of James the Court held that an Ejectment would not ly of Common pasture or of Sheep-gate BEamont versus Cook Trin. 13 Jacobi An exception taken in Ejectment because the Originall was teste the very same day that the Ejectment was made and adjudged good by the whole Court and one Goodhall brought an originall in Ejectment against Hill and three others and the Plaintiff counts against three of the Defendants and no simulcum against the fourth and this matter was moved in arrest of Judgement And the Judgement was stayed by the whole Court COronder versus Clerk Hill 10 Jacobi rotulo 3315. Action upon an Ejectment brought the Jury found it specially upon a Devise the words of the Will were to my right Heires Males and posterity of my name part and part like the question was who should have the Land and the Court held the Land must go to the Heire at the Common Law and not according to the words of the Will because they cannot consist with the grounds of Law a Will must be construed in all parts the brother cannot have it by the Devise because he is not Heir and the Daughters cannot for they are not Heirs and posterity and therefore neither of them could have it because they are not Heirs and posterity because they that take it must be Heir and posterity
his Writ and that the eldest Brother hath nothing in the Land Judgement was had against a Defendant in Debt and Capias to satisfie awarded and Non est inventus returned and Scire facias awarded against the Bayl and upon the first Scire facias the principall Defendant yeelds his Body in execution and it was very good for before that the Bayl had no day in Court and in the Kings Bench if the Defendant yeelds his Body upon the second Scire facias it shall be accepted And if a man be Bayl upon a Writ of Error if the Judgement shall not be reversed he shall be in execution againe It was objected by Hutton Serjeant that the Scire facias is against the Bayl to know why the execution shall not be awarded against the Bayl and that ought to be delivered to the Sheiriff before the day of the returne or otherwise it shall be Erroniously awarded and then the party may yeeld his Body to Prison at any time and discharge his Bayl and agreed that Bayl in this Court may be released Accompt doth not lie for any sum certaine Pasch 9. Jacobi 1611 in the Common Bench. John Reyner against Powell See Hillary 8. Jacobi 136. HAughton Serjeant argued that there shall be a good Estate tayl of a Copy-hold and that by the custome after the making of the Statute of Westminster 2. And he agreed that at the Common Law all estates were Fee simple absolute or conditionall and that the estates tayl were created by the Statute of Westminster 2. And do not exclude customary estates as it appeares by Littleton who saith that Tenant at will by copy of Court Roll by custome may be in Fee simple and so of estate tayl and with this agrees many other Authors 15 H. 8. b. Tenant by Copy-hold of Court Roll resolved in the point and that a Formedon in the discender lieth for that and as the Statute of Westminster 2. divides estate tayl and Fee simple So may custome of a Mannor as well as custome make an estate at will which is personall and determines by the death of any of the parties to discend and as well as the custome of London of not moving things fixed is created by custome as well may Formedon be created by Custome and also the Statute is that gives Cui in vita extends to a Copy-hold so the Statute of Limitation as it appeares by Brooke Limitation 5 Ed. 6. And with this agrees also Heydons Case and though that the words are Voluntas Donatoris in the Charter c. Yet the estate tayl may be created by devise So that the Statute shall not have such literall construction and as well as a Lease for a hundred yeares may be within the Statute of 11. H. 7. Which speakes only of discontinuances as it appeares by Sir George Brownes Case 3. Coke So may a Copy-hold estate which is but an estate at will be within the Statute of Westminster 2. and it is confest by the other part by pleading that he was seised in tayl according to the custome of the Mannor and it is not pleaded that he had Issue at the time of the Alienation and the other party claimed by the Alienation the which was not good if he had no Issue at the time of that if he had but Fee simple conditionall and so concluded and praied Judgement c. Dodridge Serjeant of the king saith that the reputation of the estate consists upon two parts first the name secondly the nature of the estate tayl and for both the makers of the Statute of Westminster 2. bad no intention that this should extend to Copy-hold and first for the name which gives the being he cited Fitz. Natura Brevium 12. C. where it is sayd that Copy-Tenants or Copy-holders or Tenants by copy is but a new Terme found for of auncient times they were called Tenants in Villenage or of base tenure as this also appeares by the old Tenures by which it appeares that then they were called and named Tenants which held in Villenage or of base tenure and Bracton booke 2. chap. 8. in the end speakes of that and calls them Villaines Sokemaines and that if such a Tenant will transfer his Tenement let it be delivered into the hand of the Lord or his Steward and he wrote immediately before the Statute of Westminster 2. and agreed with Fitz. Na. Bre. And also Bracton booke 4. fol. 209. Saith that such Tenants have used to Plow the Demesnes of the Lord and calls and names them as before and 4. Ed. 1. He is called Customarius So that Custome doth not make the certainty of his estate if he hath any and he said that 42. Ed. 3. 25. is the first in Law in which is any mention of these Lands and there they are called Neists Lands and 14 H. 4. 323. a. they are called Sokemaines by base Tenure and Lambert calles it Folkland by which and severall names he saith that the basenesse of the Estate appeares And to the estate he saith that originally it was but at the will of the Lord though that it be according to the Custome of the Mannor So that the Lord cannot put him out if he performe the services And the Register doth not respect him for he hath not framed any Originall for him to give him remedy by the Common Law but only in the Court of the Lord though that erronious Judgement be given Also he cannot prescribe but in the name of the Lord as it appeares by 18. Ed. 3. Fitz. prescription that such estates which are incident to Fee simple as Dower not Tenants by the Curtisie cannot be derived out of this without Custome nor that warranted So that his reputation appeares by his name and also by his nature Also he intended that the makers of the Statute of Westminster 2 did not intend that the Statute should extend to this for it is Oppositum in Objecto for Custome is without time of memory And the Statute of Westminster 2. was made 13. Ed. 1. the beginning of which every one knowes Also the Statute of Westminster 2. doth not extend to any Lands but those which the Tenant might have aliened before the Statute But the Copy-holder had not any power to alien for the Lord ought to be his Instrument and hand as Bracton saith to alien transfer he cannot but by the hands of the Lord and it must be restored to the Lord the words of the Statute are The will of the giver in the Charter c. So that the Statute intends such Lands which may passe by Deed and Fine and devise his Deeds and the Deed extends to them for a Fine is Chirograph and devise to be made by copy of Court Roll is not so for that is only of Acts made in the Court of the Lord it cannot be within the Statute for Copy-hold ought to be held of the Lord and Tenant in tayl shall hold of the giver and so
cannot a Copy-holder which hath so base an estate And if this shall be so these mischeifes will insue That is that this base estate should be of better security then any estate at the Common Law for Fine shall not be a Barr of that for it cannot be levied of that also Recovery cannot be suffered of that for there cannot be a Recovery in value neither of Lands at the Common Law neither of Customary Lands for they cannot be transferred but by the hands of the Lord. And to Littleton he agreed and also 4 Ed. 2. which agrees with this where it is said that at Stebenâ—eath a Surrender was of Copy-hold Lands to one and the Heires of his Body but he said that that shall not be an Estate taile for then the Estate hath such operation that this setles a Reversion and Tenure betwixt the Giver and him to whom it is given but this cannot be of Copy-hold Land for this cannot be held of any but only of the Lord and to the others this Estate doth not lye in Tenure and yet he agreed that of some things which did not lye in Tenure Estate Tail may be but Land may be intailed but Copy-hold Estate is so base that an Estate tail cannot be derived out of it so that though that custome may make an Estate to one and the Heires of his Body yet this cannot be an Estate taile but Fee-simple conditionall and also he agreed that they might have Formedon in Discender but it is the same Formedon which was before the Statute as if Tenant in Fee-simple conditionall before the Statute would alien before issue but it was no Estate taile with the priviledges of an Estate taile before the Statute and to the other matter of Surrender that is the admittance of the parties which is an Estate taile that doth not conclude the Court as it appears by the Lord Barkleys Case in the Commentaries where the Estate pleaded severally by the parties is not traversed by any of them and so concludes and prayes Judgment c. And this case was argued again in Trinity Tearme next ensuing by Montague the Kings Serjeant for the Defendant and he said that there are three questions in the case First If Copy-hold land may be intailed Secondly Admitting that it may be intailed if Surrender makes discontinuance Thirdly If it shall be Remitter and to the first he seemed that it might be intailed and that it shall be within the Statute of Westminster 2. And first for the Antiquity of that he said that Littleton placed that amongst his Estates of Free-hold and hath been time out of minde and is a primitive Estate and not derived out of the Estate of the Lord and the Lord is not the Creator of that but the means to convey that after that it is cerated and what is created then shall have all the priviledges and Benefits which are incident to it and shall be nursed by the custome and is time out of minde and the Law alwaies takes notice of it and he cited 24 H. 4. 323. by Hankf Bracton Fitz. Na. Bre. 12 C. and Brownes Case 4. Coke which is not simply an Estate at the will of the Lord but at the VVill of the Lord according to the custome of the Mannor and when it hath gained the reputation of Free-hold then it shall be dircted according to the rules of the Common Law and 2. and 3. P. and Ma. Dier 114. 60. allow Copy-hold Estate to be intailed and he saith That no Statute hath more liberall exposition then the Statute of Westminster 2. 45. Ed. 3. Incumbrance shall not charge the Issue intaile also a Copy-holder shall have a Cui in vita also a Copy-hold is within the Statute of Limitation and so upon the Statute of buying of pretenced rights And it is alway intended when a Statute speakes of Lands and Tenements that Copy-hold Lands shall be within that And he saith That all the Objections which have been made of the contrary part are answered in Heydons Case but he relyed upon that that every reall Inheritance is within the Statute of Westminster 2. 4 Ed. 2. Formedon lyeth of Copy-hold Land 25 Ed. 3. 46. Estate tayle is of a Corrody and office which proves that Copy-hold is a reall Inheritance and for that shall be within the Statute 46 Ed. 3. 21. Gavelkinde Land may be intailed 6 Rich. 2. Avowry 2. 8. Rich. 2. 26. Copy-holder shall be charged with Fees of a Knight at Parliament 22 and 23. Eliz. Dier 373. 13. Lands in ancient Demesne were intayled and he said that the reason is that for that it is Inheritance and time hath applyed them to an Estate and so concluded and prayed Judgment for the Defendant Hutton Serjeant argued for the Plaintiff that Copy-hold Lands cannot be intailed for that is but a customary Estate and the Law doth not take any notice of it but onely according to Custome for there were no Estates tayle before the Statute for then all were Fee simple absolute or conditionall that is either implyed or by limitation which cannot be of an Estate tayle which is not within the Statute of Westminster 2. for no Actions are maintainable by that but those which are by the Custome and a Writ of false Judgment See Fitzherberts Natura brevium 12. 13 Ed. 3. F. Prescription 29. that it hath no Incidents which are incident to Estates at the Common Law without Custome as Dower See Revetts Case and so is Tenancy by the Curtesie and there shall be no discent of that to take away Entry and so of other derivatives And he seemed that it is not within the Statute for three reasons apparent within the Statute First That it is hard that Givers shall be barred of their reversions but in case of Copy-holds the Giver hath no remedy to compell the Lord to admit him after the Estate tayle spent but onely Subpena and in this Case the Lord may releive himselfe for the losse of his services for that the Statute provides no remedy for him Secondly That the Statute doth not intend any Lands but those of which there is actuall reversion or remainder and those which passe by Deed so that the will of the Giver expressed in the Charter may be observed and of which there may be a subdivision as Lord Mesne and Tenant for there shall be alwayes a reversion of the Estate tayle and the Donee shall hold of the Donor and not of the Lord. Also it seems that the Statute doth not intend to provide for any but those for whom the VVrit in the Formedon ordained by the Statute lyes and agreed that for Offices and such like Formedon lyeth if the party will admit Estate tayle to be discontinued Also the Statute intends those things of which a Fine may be levyed for the Statute provides that the Fine in his owne right should be nothing but by Copy-holder Fine cannot be levied and for that he shall not be within the
REPORTS OF Diverse Choice CASES in LAW TAKEN By those late and most judicious Prothonotaries of the Common Pleas RICHARD BROWNLOW JOHN GOLDESBOROUGH Esq rs WITH DIRECTIONS HOW TO proceed in many Intricate Actions both Reall and Personall shewing the Nature of those Actions and the Practice in them excellently usefull for the avoyding of many Errours heretofore committed in the like Proceedings fit for all Lawyers Attorneys and Practisers of the Law Also a most Perfect and exact Table shewing Appositely the Contents of the whole Book Solon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed by Tho Roycroft for Matthew Walbancke at Grays-Inne Gate and Henry Twyford in Vine Court in the Middle Temple 1651. THE PUBLISHER TO THE READER THese Reports coming unto my hands under the Commendations of men of so much sufficiency in the knowledge of the Lawes I could doe no lesse then fear that it would prove too obvious a neglect of Common good to keepe them in the darke therefore here I present them to the World to the end that all men may take that benefit by them now being in Print which some few only have hitherto injoyed by private Copies And indeed I thinke I shall put it beyond dispute when I name the two worthy and late famous Prothonotaries M r. Brownlow M r. Goldesborough whose Observations they were that they will both profit and delight the Reader since there are contained under these heads viz. Actions upon the Case Covenant Account Assise Audita querela Debt upon almost all occasions Dower Ejectment Formedon Partition Quare Impedit Replevin Trespas Wast Many excellent conclusions as well of Law as of the manner of pleadings Demurrers Exceptions Essoins Errors and the qualities of many VVrits with other various and profitable Learning in which may be found the number of the Roll for so many as have had the luck of a full debate and definitive sentence And for the rest though there is no Judgment in them so as to determine what the Law is yet at least they will afford a very considerable compensation for the Readers pains by opening unto him such matters as are apt for Argumentation and may acquaint his Genius with the manner of Forensall Disputations from which benefit to detain you any longer will deserve a Censure therefore I remit you to the matter it self which I am confident the Printers faults excused will easily effect its owne praise beyond my Ability SPECIALL OBSERVATIONS AND RESOLUTIONS OF THE JUDGES OF THE COMMON PLEAS Vpon severall Actions upon the Case there depending and adjudged PEdley versus Langley Hill 14. Ja. rotulo the Plaintiff brought his Action for these words You are a Bastard for your Father and Mother were never married The Defendant pleads that the Plaintiff was a Bastard and justifies the words laid and it was held by the Court that this Issue should be tried by the Countrey and not by the Bishop as in other Cases SMayles one of the Attourneys c. versus Smith for these words he meaning the Plaintiff took corruptly five Marks of Brian Turnor being against his own Client for putting off and delaying an Assize against him and after a Verdict exception was taken against the Declaration for that the Plaintiff did not expresly alledge that at the time of speaking the words He was an Attourney but layd it that he had been an Attourney The Court held the words would bear Action MAle versus Ket Hill 14. Jac. rotulo 1506. for these words William Male did steal my Corn out of my Barn Judgement for the Plaintiff The Court held that an Action would lie for these words You are a Thief and have stollen a Cock which was but Petty Larceny COwte versus Gilbert Hill 10. Jac. rotulo 3176. Thou art a Thief and hast stollen a Tree Judgement that the Plaintiff should take nothing by his Writ The like Thou art a Thief and hast stollen my Maiden-head no Action HArding versus Bulman Hill 15. Jac. The Plaintiff declares that in such a Term he had brought an Action of Case against B. for scandalous words to which he pleaded not guilty and at that Triall gave in Evidence to the Jury to take away the Plaintiffe Credit and Reputation that the Plaintiff was a common Lyar and recorded in the Star-chamber for a common Lyar by reason whereof the Jury gave the Plaintiff but very small Damage to the Plaintiffs Damage of c. The Defendant pleads not guilty And it was moved in Arrest of Judgement that the Action would not lie And of that opinion the Court seemed to be BRidges one of the Attourneys versus Playdell for words You meaning the Plaintiff have caused this Boy meaning A. W. then present to perjure himself Judgement for the Plaintiff STone versus Roberts Mich. 15. Jac. rotulo 635. for these words Thou art a Witch and an Inchanter for thou hast bewitched Stronges Children no Action lies but if thou say Thou art a Witch and hast bewitched Children and that they are wasted and destroyed they are actionable SCarlet versus Stile Trin. 14. Jac. rotulo 541. for these words Thou didst steal a Sack and Curricomb and I will make thee produce it and thou didst steal my Fathers Wood and didst give it to a Whore The Defendant justifies that such a day the Goods were stollen and there was a common fame and report that the Defendant had stollen them and upon that report the Plaintiff did vehemently suspect that the Defendant had stollen them and thereof did inform a Justice of the Peace and complaining of the Defendant to the Justice and informing him of the Premises did speak the words before mentioned If a Felony be committed it is good cause to arrest one for Felony but not to speak words to defame one If there be two Issues in severall Counties in Trover and one is tried and Judgement and Execution of the Costs and Damages and afterwards the other Issue is tried and Costs thereupon the last is erronious as to the Costs Broccas Case Note Trover was brought against Husband and Wife for Goods which came to the hands of Husband and Wife the Conversion was alleadged to be by the Husband alone for the Wife could not convert And the Court held that the Action would not lie against the Wife MOse versus Canham Mich. 6. Jac. rotulo 508. The Plaintiff declares that one Levet was indebted in such a summ and for the payment thereof had delivered to the Plaintiff divers Goods of the said Levets the Defendant in consideration that the Plaintiff would deliver to the Defendant the said Goods promises to pay the Plaintiff the money due from Levet and exception was taken to the Declaration for that the certainty of the Goods were not expressed and for that the consideration was but collateral Another Exception for that the Plaintiff might grant the Goods over but the Court held the contrary And Judgement for the
open any Chest which is locked and take the Goods in that in Execution and if he doth it not an Action of Case will lie against him In Debt if it be demanded by Original the Process is Summons Attachment and Distress and for Default of sufficiency upon a Nichil returned Process to the Outlary if the Summons or Attachment be returned an Essoyn lies And Wager of Law lies if the Count be upon a simple Contract And if the Parties be living which made the Contract or Debt against an Heir the Writ shall be brought in the Debet but when it is brought against an Executor or Administrator or of Chattels it shall be in the Detinet tantum The Judgement in Debt where the Demand is in the Debet detinet is to recover the Debt Damages and Costs of Suit and the Defendant in misericordia but if the Defendant denies his Deed then a Capias for his Fine issues out And if the Original be in the Detinet for Chattels then the Judgement is to recover the thing in Demand or the value thereof and Costs and Damages and the Process of Execution is a Distress to deliver the Chattels or the value and Damages And if the cause of Action be against Executors or Administrators the Judgement is to recover the Debt and Damages of the Testators Goods if the Executor hath so much in his hands and if he hath not then the Damages of the Executors or Administrators proper Goods And if the Sheriff upon a Scire facias return a Devastavit then a Fieri facias or Elegit may be sued out to levy the Debt and Damages of the Executors or Administrators proper Goods And if the Executor plead that he never was Executor and it is found against him that he hath administred but one Penny the Judgement shall be to recover the Debt and Damages of the Executors own Goods Debt brought upon a Record the Execution shall be brought where the Record remaines MIch 9. Jac. rotulo 2304. Throckmorton Administrator versus Hobby The Aministrator releases and afterwards the Administration is revoked and declared by Sentence to be void and null and then the Release is void TRin. 9. Jac. rotulo 917. Brookesby Vaux versus M. Tresham Executor of the Testament of T. T. and Exception was taken to the Defendants pleading because the Defendant pleads divers Statutes to divers persons and the Plaintiff shews that some were by fraud and that others were for performance of Covenants that were not broken and for other Statutes that they were satisfied and the Defendant in pleading a Statute by three sayes two of them did not pay and doth not say that the three nor any of them have not paid In pleading of a Statute it must be generally pleaded that it is a true Debt And my Lord Cook held that a man without a Defeasance may plead that the Statute was acknowledged for Payment of a lesser summ and it was held that if the Count be good and the Plea naught and Replication naught if it appears that the Plaintiff had good cause of Action the Plaintiff shall have Judgement And Warburton said that one may plead generally that the Statute was acknowledged by fraud without shewing the special matter SPeak versus Richards The Plaintiff brought an Action of Debt for Money levied by the Sheriff upon a Levari facias and not paid to the Plaintiff upon the Sheriffs Return upon the Levari issued out of the Chancery and that it would well lie But note the Plaintiff had concluded his Demurrer ill for he demurring to the Defendants Plea which was grounded upon a Release should have demanded Judgement if the Defendant should be admitted to plead a Release which was made after the Sheriff had made his Return TRin. 15. Jac. rotulo 1630. Parson versus Middleton Action of Debt brought to be tried in Durham and the Record sent to the Chancellor of Durham because the Bishops Sea was empty and before the Day given by the Judges a Bishop was elected and he sent the Record and not the Chancellor MIch 15. Jac. rotulo 2118. Maddock versus Young The Plantiff brought an Action of Debt for an Escape against the Sheriff upon a Capias utlegat after Judgement the Defendant pleads that there was no such Record of the Recovery of the Debt and Damages to which Plea the Plaintiff demurrs pretending he had not directly and plainly answered the Declaration but Judgement was given for the Defendant Where a Capias is not the Process a Capias ad satisfaciendum is not the Execution and no Capias lies against a Countess or Baroness and at Common Law no Capias ad satisfaciendum would lie but onely where the Action was Vi armis but onely a Levari facias MIch 14. Jac. rotulo 3140. Bawkey versus Isted An Action of Debt brought upon the Statute of E. 6. for not setting forth of Tithes of Land lying within the Parish of Horsted parva the Defendant pleads Nil debet per patriam and after Triall and a Verdict Exception was taken to the Venire facias because the Venire facias was of Horsted parva and not of the Parish of Horsted parva but the Court were of opinion that it might be either of the Town or Parish of Horsted parva and Judgement was given for the Plaintiff because both the Town and Parish were named in the Record An Action of Debt brought against an Administrator who pleads that the Intestate was indebted to him and that he had fully administred and that he had no Goods or Chattels which were the Intestates beyond Goods and Chattels to the value of 10. l. which the Administrator retains towards satisfaction of the said Debt to him due the Court were of opinion that the Administrator ought to plead generally fully administred else the Debtor should be prejudiced in taking Issue upon that Plea the Case was between Fox and Andrew PAsch 6. Jac. rotulo 751. Sharpley versus Hurrell Action of Debt brought upon an Obligation and the Defendant pleads the Statute of Usury and sets forth that one Ship went a fishing to New-found-land which Voyage might be performed within eight Moneths the Plaintiff delivered fifty pounds to the Defendant to pay sixty pounds upon the Return of the Ship to Dartmouth from fishing and if the Ship should not come to New-found-land by reason of Leakage or Tempest should return to Dartmouth then the Defendant should pay the principal Debt and if the Ship should never return he should pay nothing and it was held by the Court that it was not Usury for if the Ship stayed at the New-found-land two years he should pay but 60. l. An Action of Debt brought against an Executor who pleads that he had nothing in his hands at the time of the Writ purchased and saith not nor any time after the Plea is not good but if the Plaintiff had took Issue
that he had Assets at the Day of the Writ purchased and it had been found for the Plaintiff now the Plea is made good If an Action of Debt be brought against two Executors and one of them onely appear and confess the Action the Judgement shall be against both of them of the Goods of the Testators in the hands of all the Executors and the Damages of him that appeared onely TRin. 16. Jac. rotulo 988. Houldsworth versus Barker An Action of Debt brought upon a Bill the Defendant pleads the Bill was delivered to the Plaintiff upon a Condition not performed and it was held a naughty Plea by the whole Court HIll 13. Jacobi rotulo 842. Harrison al. at the Suit of Fleet. An Action of Debt brought for 32. l. and the Plaintiff counts upon an Emisset Harrison pleads that he and the other do not detain from the Plaintiff the said 32. l. nor any Penny thereof and the other pleads to Issue and a special Entry made that the Issue should remain untill the said Harrison had perfected his Law or made Default and he at the Day did wage his Law and Judgement was that the Plaintiff should take nothing by his Writ PAsch 16. Jac. rotulo 1200. Rayson versus Winder An Action of Debt brought upon an Obligation with a Condition to perform an Award which was good in part and void in part and the Breach assigned upon the good part and the Award was to pay Money but no time of Payment afterwards it was demanded the Award is good GAsington versus Burcher Knight Turner Jones and Bowden for 1800. l. Burcher was outlawed Turner and Jones appeared by Supersedeas and Bawden appeared by another Attorney and the Plaintiff declared against them three that appeared upon an Account Turner offered to wage his Law and the others plead Nil debent per patriam and the Court was moved pretending that Turner shal not be admitted to wage his Law because the Defendants should not sever in Plea but the Court upon sight of divers Presidents were of another opinion although it was urged that Turner Jones joyned in a Supersedeas and therefore pretend that Turner should not sever in Plea from Jones that pleaded Nil debet per patriam but that Exception was disallowed for although two appear by Supersedeas yet they may vary in Plea MIch 16. Jac. rotulo 581. and the Imparlance entred 16. Jac. rotulo 1727. An Action of Debt brought by Lee versus Arrowsmith upon an Emisset for divers Parcels and upon an Account and the Parcels and Account amounted to the summ of 300. l. but in the Imparlance Roll the Parcels and summ accounted for did not amount to 300. l. by 6. l. And this variance was moved in Arrest of Judgement after a Verdict but the Court were of opinion that it was amendable because Ball the Attorney made Oath that he commanded his Clerk to summ the Account for 6. l. to maintain his Writ and therefore the Roll was amended HIll 36. Eliz. rotulo 1908. Action of Debt brought by Gage versus Gilbert upon an Obligation for 500. l. bearing Date first of February Anno 25. Eliz. The Defendant pleads a general Release made to him by the Plaintiff bearing Date after the making of the Bond of all Dues and Demands whatsoever except an Award made between the Plaintiff and one G. W. why R. R. then dead and one Obligation of 500. l. for performance of the said Award bearing Date 29. April 25. Eliz. and whether these words bearing Date 29. April shall have reference to the Arbitrement or Bond was the Question upon a Demurrer upon the Replication in which the Plaintiff shewed the special matter that the Award was made the 29. April and that the Bond was made the said first of February and it was adjudged that these words bearing Date should have reference to the Award and not to the Bond. And if the Heir pleads Ciens per discent besides one Acre if the Plaintiff please he may have Execution of that Acre or if the Plaintiff plead that he hath Assets beyond that Acre and it be found that he hath ten Acres more the Plaintiff shall have Execution of the Land onely and not of his person as it is where the Heir pleads that he hath nothing by Discent generally and it is found against him that Land and all other his Land which he hath and his Body are liable to the Judgement by a Capias ad satisfaciend Fieri facias or Elegit If a man be retained in London to serve beyond Sea he may have his Action for his Wages in England in any County And the like of an Obligation bearing Date at Roan in France it may be sued in England alleadging the place to be in such a County where he brings his Action And note that Debt may be brought in the Common Pleas without Original against any Officer or Minister of the said Court by Bill exhibited to the Court but no Process of Outlary lies upon that and the Judgement upon that is that the Plaintiff shall recover his Debt and Costs and shall have an Attachment ad satisfaciendum but no Exigont for because it is not by Original and all the Process by Bill shall be returnable at a Day certain but no Bill lies against a Serjeant at Law And note that the Judges Serjeants and Officers Clerks Attorneys and Ministers of the Court may have an Attachment of Priviledge out of the said Court without an Original to arrest any to them indebted or for any personal cause to proceed upon it as if it were by Original but no Process of Outlary lies thereupon and such Process of Attachment shall be returnable at a Day certain and not at the common Return and they may be returned from Day to Day If a man be bound to perform an Award of Arbitrators and they make an Award accordingly that one shall pay Money he may have his Action of Debt for the Money and declare upon the Award and afterward may have another Action upon the Obligation for not performing the Award by the opinion of the whole Court Mich. 5. Caroli An Action of Debt brought by an Executor the Defendant pleads an Outlary in the person of the Executor and demands Judgement if he ought to answer his Writ the Plaintiff demurrs in Law to that Plea and Judgement was given that the Defendant should answer over WOlly versus B. and his Wife Trin. 37. Eliz. rotulo 1306. An Action of Debt brought by Husband and Wife as Executrix the Defendant pleads in Barr an Outlary in the Testator by an Estranger which is in its force and upon a Demurr and solemn Debate adjudged a naughty Barr. Trin. 40. Eliz. rotulo 507. The like Plea pleaded to an Executor that brought an Action of Debt and adjudged no Plea And Dixon Administrator of Collins exhibited a Bill against
12. Jacobi rotulo 1609. or Hill in the same year rotulo 3027. The Plaintiff brought his Action upon a Bond the Condition whereof was performance of an Award for and concerning all matters Causes Suits and Demands whatsoever had moved or depending c. so as the said Award be made c. The Defendant pleads no such Award made the Plaintiff by Reply sets forth the Award it was made De praemissis to wit that the said I. should clearly depart with and avoid out of her House in which she then lived and that the said I. should carry away all the Hay c. The Defendant re-joynes and sayes no such Award and a Verdict for the Plaintiff the Defendant moved in Arrest of Judgement for that the Award was made but of one part and so void but Judgement was given for the Plaintiff for though the Award be made but of one part yet if the Defendant may plead it in Barr of the other Action brought against him for the same cause in all such cases the Award is good But my Lord Hubbart and Nichols took this Difference upon these words so that for then the Arbitrators must make their Award of all such things which are in Controversie and in such manner as the Condition prescribes but if the Parties put themselves by Parroll if the Arbitrement be made of one part it is good And Hubbart said that in all Arbitrements whether by Bond or Parroll they ought to be reciprocal and to be made in such manner that it may make an end of all Controversies between the Parties For if a man be bound in a single Bill and put it to Arbitrement and the Arbitrators order that the Obligor pay to the Obligee a summ and do not award that the Obligee shall seal a Release or that the Money paid shall be in Discharge of the said Bill the Award is void But in Barpools case the Submission was by Parroll for Money due before the Submission and the Award was that he should pay such a summ for the same Debt and good for the Award shall inure to a Dischage See Paschals case 8. Rep. STutfield Plaintiff Grony Defendant in Trinity Terme 13 Jacobi rotulo 859. The Defendant pleads to a Bond taken by the Sheriff for his Appearance in the Kings Bench Die Sabbati proximum post Oct. Martini that he appeared at the Day and the Court of Common Pleas gave him a Day to bring in the Record of his Appearance by Mittimus issuing out of the Chancery the Record was certified Videlicet that he appeared Lunae post xv am Martini which was after the Day yet it was adjudged good for if the Appearance was the same Terme it is good though it be not the same Day SErle against Harris Trinity Terme 9. Jacobi rotulo 1321. Judgement is there entred by Non sum inform against Harris Harris brings a Writ of Error upon that Judgement and assignes for Error that the Record was Fr. Harris de Brownton and the Original filed to warrant that Judgement was Fr. Harris de Browton and there reversed for that Variance HAmond versus Jethrell Mich. 8. Iacobi rotulo 2354. Hamond brought his Action of Debt upon a Bill obligatory for the Payment of Money and no Day limited in the Bill for the Payment thereof but after the words In witness whereof c. these words were written Nevertheless it is agreed that the said Jethrell shall not be hereby compelled or required to pay the said 30. l. untill the said Jethrell have recovered against B. Hudson the summ of 30. l. or more upon a Bond of 40. l. wherein the said Hamond c. The Defendant demands Oyer of the Bill and hath it Memorandum that J. W. J. c. and demurrs in Law and shews that the Plaintiff had not alleadged any Day of Payment nor when it was requested and the Declaration adjudged good notwithstanding and my Lord Cook held that whatsoever comes after these words In witness c. is no part of the Bill but words after In witness c. may be a Condition and must be pleaded and not demurred upon and 21 Henry the sixth direct in this point and so the third Report An Action of Covenant brought upon words of Covenant in Indenture after In witness c. and above the Seal and held good and maintainable SAaint-John versus Cracknell Mich. 12. Jacobi rotulo 1153. An Action of Debt was brought upon the Statute of the 24. of Henry the sixth for 40. l. for Election of Burgesses in Parliament and it was tried and a Verdict for the Plaintiff And Serjeant Moor moved the matter insuing in Arrest of Judgement First the Statute directs the Sheriff to issue out his Warrant to the Mayor if there be one and if no Mayor then to the Bailiff and it appeared by the Court that the Sheriff made his Warrant to the Bailiff and do not shew that there was no Mayor there and the Exception disallowed for if there was a Mayor the Defendant ought to shew it by Plea Secondly that the Plaintiff doth not alleadge that the Warrant made to the Bailiff was under the Sheriffs Seal as the Statute directs and the Court held the Count good notwithstanding because the Declaration was that the Sheriff by vertue of a Writ to him directed made his Warrant to the Bailiff and if it was by vertue of the Writ it shall be intended to be under his Seal HOpe versus Holman Mich. 10. Jacobi rotulo 3612. Debt upon an Obligation the Defendant pleads a forreign Attachment in London and the Plaintiff demurrs and the Exceptions were first that the Defendant had attached the Moneys in his own hands by way of Retainer and so the Custome unwarrantable Secondly it appeared that Judgement was given in the Mayors Court by the Default of him in whose hands the Money was attached and it appeared that the Defendant which brought the Action in London and he in whose hands the Attachment was made and that made Default was the same person and it is a contrariety that the same person should appear and not appear and a Prescription for that is naught and the Custome is in London that the Recoveror in London ought to finde Sureties that if the Debt be discharged within a Year and a Day then to pay the Money and did not appear by the Record that he found Sureties which was an incurable Fault and so adjudged by the Court. POtter versus Tompson Hill 14. Jacobi rotulo 3449. To one Obligation with Condition to make Assurance of Lands to such Uses therein expressed the Defendant pleads that he made a Feofment of the same Lands to other Uses which the Plaintiff accepted the Plaintiff demurrs and it was adjudged a naughty Plea for he ought not to vary from the Condition HIggenbotham versus Armot Hill 8. Jac. rotulo 906. Action of Debt brought upon a Retainer in the Office of an Husbandman for one year and so from
year to year the Defendant wages his Law and at the Day to wage his Law the Court refused to accept it for that he ought not to wage his Law for Wages yet if the Retainer were not for a year at least the Court seemed to be of opinion that he might wage his Law VErnon versus Onslow Pasch 12. Jac. rotulo 1047. Upon an Action brought upon a Bill for 80. l. the Defendant demands Oyer of the Bill was Pro octogesimis libris and to that the Defendant demurrs and Judgement for the Plaintiff Hutton cited the Case in Cooks 10. Rep. Rowlands Case And another in Mich. 44. 45. Eliz. rotulo 131. Proseptingentis libris and the Bond was Proseptungentis libris And another Mich. 11. Jac. upon a Bill for seventeen pounds and adjudged a good Bill YOung versus Melton Trin. 10. Jacobi rotulo 3434. An Action brought upon a Bond for performance of Covenants the Defendant pleads Conditions performed The Assignes the Breach for non-payment of Rent and pleads in this manner that in December he demised to the Defendant one Wine-Cellar c. for one year and if the Defendant would hold the Wine-Cellar for three years paying 40. l. yearly during the said terme and alleadges non-payment of the Rent of on Quarter in the first Year and the Defendant demurrs and the Court were of opinion that the reservation had reference as well to the first year as to the two years following and in that case Cook said that if a man demise c. reserving Rent to himself the Heir shall not have the Rent but if the Rent be reserved generally the Heir shall have it WHickstead versus Bradshaw Pasch 14. Jac. rotulo 2175. There was Judgement entred against the said B. and after the Bail of Bradshaw brought a Habeas Corpus to the Marshalsey Bradshaw being a Prisoner there to have his Body before the Judges of the Common Pleas to be committed in Execution in Discharge of the Bail but before the Returne of the Habeas Corpus the said Bradshaw had brought a Writ of Error returnable the Day following and when he came to be committed the Court doubted that their hands were tied by a Writ of Error by reason he could not be committed upon the Judgement and yet they would have discharged the Bail if they knew which way therefore Quaere GErrard al. versus Dannet Hill 9. Jac. rotulo 2015. Judgement was had upon a Bond by Non sum inform and a Writ of Error brought for that the Christian name of the Defendant Attorney was left out in the Imparlance Roll but it was in the Roll whereupon the Judgement was entred and a Warrant of Attorney entred accordingly and the Court was moved that it might be put into the Imparlance Roll which was granted upon sight of the Judgement Roll and Warrant of Attorney entred If a man be bound by Award to pay one 20. s. And I at the Day offer it and he refuseth it or comes not to receive it I must plead that I was ready to pay and shall not plead an Vncore prist because it is upon a collateral matter An Obligation was made to pay 10. l. 8. s. and eight not saying Pence or any thing else An Action of Debt lieth for the 10. l. 8. s. WIlde versus Vinor Trin. 7. Jac. rotulo 1629 or 2629. Debt upon an Obligation to perform an Award The Defendant pleads that the Arbitrators made no Award the Plaintiff replies that the Defendant by Writing did revoke and null the Authority of the Arbitrators Foster held the Bond was forfeited although he might revoke the Plea was that he did discharge the Arbitrators against the form of the Condition My Lord Cook held that the Power was countermandable if the Submission be by Writing the Countermand must be by Writing if by word I may countermand by word If two binde themselves one cannot countermand alone If Obligor or Obligee disable by their own Act to make the Condition void the Bond is single 14 H. 7. If I am bound to infeoff A. and I marry her before the Day the Bond is forfeited 18 E. 4. 18. 20. the great doubt was because no express notice but notice was implied And the Bond forfeited because he did not stand to it Judgement for the Plaintiff PArker versus Rennaday Trin. 6. Jac. Action brought upon a Bond for 60. l. the Bond was in Italian in these words In cessanta libris and held a good Bond for 60. l. O. K. ux ejus Admin versus Needham who was bound to the Intestate in a Bond and pleads that Administration of the Intestates Goods was committed to him by the Archbishop the Intestate having Bona not Abilia before it was committed to the Plaintiffs Wife The Plaintiff replies that the Administration committed to the Defendant was revoked and made void to which the Defendant demurrs pretending his Administration to be a Release in Law but it was otherwise adjudged But if the Debtor were made Executor then the Debt is released like unto an Administrator during the minority he may do all for the good of the Infants but nothing to their prejudice if an Executor marry the Debtor it is no Release in Law Judgement for the Plaintiff by the whole Court LAwrance and Althams case if I have no means to gain my Right but by Action if I release my Action I release the thing it selfe because I release my means to come to my Right If I release all Actions I may have Jus prosequendi A Release made by the Testator shall be no Barr to the Executor to bring a Writ of Detinue because it continues a wrong still to the Executor A Bond to pay Money at Michaelmas may be released because it is a Debt otherwise it is of a Rent reserved by Lease the like it is of a single Bill to pay Money at four Dayes if the first Day be broken no Action untill all the Dayes be past but in case of a Lease after the first Day Debt doth lie in the first it is a Debt but not in the other Quarrels Controversies and Debates are all one that is all Causes of Quarrels Controversies and Debates are more large then Actions and Suits are more then q. c. d. and by Release of Suits Executions are gone Release of Duties Executions are gone neither Fraud nor Might can take a Title without Right Demand is most large and by it Rents are gone Executions gone Incidents gone as Releif Warranties gone all Causes of Demand gone Actions and a mans Right gone When a condition is to arbitrate of all matters between c. there if the matters be not made known to the Arbitrators they are not bound to arbitrate more then they know for if it appear to the Court that all matters committed to the arbitrators be not arbitrated the Award is void but if the submission be of all matters between c. so that now all must be
by Obligation and that he retained the Money in his hands to satisfie the Debt The Plaintiff replies that the Money was not due and payable to him at the time of the Intestates Death and that he took Administration after the Day of Payment and if the Administrator had pleased he might have took Administration before the Day of Payment and the Court held the Defendants Plea good but he shall not have the Forfeiture CArrell versus Paske Trin. 13. Jac. rotulo 1018. Debt brought upon an Obligation made at C. in the County of Surry The Defendant pleads the Priviledge of Cambridge granted to them by the Queen Eliz. for Scholars Bachelours Masters and their Servants upon Contract made within the University and shews the Bond was made in Cambridge and that he was a Servant of the Scholars to wit Bailiff of Kings Colledge in that University and inhabiting within the Town of Cambridge and Precincts of that University and therefore a priviledged Person of the same and upon reading the Record it seemed that the Defendant being a Bailiff of the Colledge is not capable of the said Priviledge PReist versus Cee Trin. 12. Jacobi rotulo 2197. An Action of Debt brought upon a Bill bearing Date 17 Novomber 1604. by which Bill the Defendant did acknowledge himself to owe the Plaintiff 10. l. to be paid to the Plaintiff at two Payments to wit 5. l. to be paid upon the 19. of November then next following and other 5. l. to be paid upon the 10. Day of December then next following The Defendant pleads it was not his Deed. The Jury finde it specially that the Defendant the 17. of November 1604. sealed and delivered to the Plaintiff one Bill obligatory shewed to the Jury bearing Date the Day and Year above and finde the Bill in haec verba Be it known c. to be paid at two Payments that is to say 5. l. to be paid the 19. of November which is the present of this Moneth and the other 5. l. on the 10. of December The Question was whether the Bill maintain the Count for the first Payment and adjudged it did RAwdon versus Turton Trin. 13. Jac. 1011. An Action of Debt brought upon a Bond for Payment of Money such a Day The Defendant pleads that he the same Day made an Obligation for the Payment of the said Money another Day which the Plaintiff accepted for the Money and Issue taken thereupon and tried for the Defendant and after the Verdict the Plaintiff moved the Court to have Judgement though the Verdict passed against him because the Plea was insufficient and that he confessed the Debt but the Court would not grant it The like Mich. 6. Jac. rotulo 1061. And the like Hill 12. Jac. CArter versus Freeman Mich. 13. Jac. An Action of Debt brought upon a Bond with a Condition that the Defendant should appear before the King at a certain Day Videlicet Die Jovis post Octobras Martini and upon a Nul tiel Record pleaded the Defendant brought his Record of Appearance Lunae post xvam Martini and this was held by the whole Court an Appearance at the Day in the Condition by the whole Court GRubham versus Thornborough Hill 12. Jac. rotulo 1773. An Action of Debt brought for Rent and for a Nomine penae the Rent due 14 November Anno 9. and no name alleadged for the Nomine penae therefore the Action would not lie for the Nomine penae but it would for Rent PAsch 44. Eliz. Elliot versus Golding An Action of Debt brought and Judgement given for the Plaintiff and a space was left in the Roll for the Costs of the Judgement and after the Year and a Day a Scire facias was brought to revive the Judgement and in the Scire facias the Costs are put in and so Judgement by Default and afterwards a Writ of Error brought and the Error was assigned because there were no Costs put into the principal Roll and afterwards the Record was removed the Count was moved that Costs might be put into the Roll but it was denied upon the first motion and afterwards Pasch 13. Jac. it was denied by the whole Court BOnd versus Green Administrator An Action of Debt brought against him as Administrator he pleads divers Judgements amounting to 670. l. and the Assignement of 100. l. Debt to the King by Deed inrolled and he pleaded that he retained his Debt in his hands and he might have given this in Evidence or pleaded it at the Liberty of the Defendant COoper versus Bacon Action of Debt brought upon the Statute of E. 6. for Tithes and the Plaintiff declares that one was seised of the Rectory of Elveley alias Kirkley in Kingston upon Hull in his Demesne as of Fee and being so seised such a Day and such a Day at Elveley alias Kirkley did demise to the Plaintiff the said Rectory with the Appurtenances to have and to hold c. for years and that by vertue thereof he hath been and is thereof possessed and that the Defendant such a Day and before and alwayes afterwards hitherto had held and occupied 30. Acres of Land in Swandland in Kingston in a place called T. and that the Tithes did belong to him The Defendant pleads Nil debet per patriam and after a Verdict it was alleadged in Arrest of Judgement that the Issue was mis-tried because the Venire facias was of Elveley alias Kirkley and it should have been of Swandland where the Tithes grew CHapman versus Pescod Trin. 11. Jac. rotulo 2106. An Action of Debt brought upon an Obligation with a Condition to give and grant to him his Heirs and Assignes The Defendant pleads that he hath been ready to give and grant and adjudged naught for he must plead that he did it otherwise it had been if the words had been as Councel should devise MAncester versus Draper Hill 10. Jac. rotulo 2613. An Action of Debt brought upon a Bond with a Condition to pay Money if C. R. shall be then living and shall before the same 20. Day of O. by due form and course in Law perfect levy and knowledge a Fine and a Recovery before his Majesties Justices of his Highness Court of Common Pleas of and in certain Houses and Tenements with the Appurtenances which the said Draper lately had and purchased of the said C. R. the Defendant pleads that C. R. was living and did not levy c. and a Demurrer and the Question was whether Draper or Ro. should levy the Fine and held that Draper should levy the Fine BAker versus Pain Hill 10. Jac. rotulo 3139. An Action of Debt brought upon a Bond to pay Rent and perform all the Covenants Grants Payments and Conditions contained in a pair of Indentures and the Defendant pleads the Indenture and performance thereof The Plaintiff assignes the Breach that the Defendant had not paid the Money The
in the upper Bench. BRownsworth versus Trench Trin. 10. Iacobi rotulo 3628. An Action of Debt brought upon an Escape against a Bailiff of a Liberty and after a Triall Exception was taken to the Declaration because it was not alleadged therein that the Sheriff made a Warrant to the Bailiff upon the Execution but it was onely alleadged that at A. aforesaid by vertue of the Warrant aforesaid he took the Prisoner and saith not within his Liberty aforesaid and the Exception was held void Trin. 10. Iacobi An Action of Debt brought by Executors and the Defendant pleads that the Plaintiffs were not Executors and tried and found for the Defendant and the Defendant upon the Statute for Costs desired Costs because the Jury found against the Plaintiff that he was not Executor and if a Verdict passe against one that is not an Executor he shall pay Costs but Costs were denied by the whole Court for the Jury might finde an untruth BAlder versus Blackborn Trin. 16. Iacobi rotulo 465. An Action of Debt brought for Rent reserved upon a Lease for years the Case this Land was devised to a Woman in this manner that she should have the profits of the Land untill the Daughter of the Devisor should be eighteen years old and the Woman made the Lease in question reserving Rent and afterwards married and then died and if the Husband after her Death should have the Land untill the Daughter of the Devisor came to eighteen years old was the question and adjudged he should hold the Land for the Devise of the profits is the Devise of the Land and is not like a Lease made by a Guardian in Socage which ends by the Deâ—… of the Guardian the Declaration was for one Mesuage demised the fourth of May 15. Jac. for one year and so from year to year as long as both parties should agree paying twenty four pounds by the year and Nil debet per patriam was pleaded and the Jury found it specially that one I. W. was seised of the Tenement and held it in Socage and made it his last Will in writing and by that did devise to A. his Daughter the said Tenement and her Heirs for ever at the full Age of eighteen years the words of the Will were Item I will that my Wife and Executrix shall have the Education of my Daughter with the portion of Money and profits of my Land to her own use without account untill my Daughters Age aforesaid provided she shall pay the out-rents and keep her Daughter at School and by that Will made his Wife Executrix and the said W. died and his Wife survived and took upon her the Executorship and married with one P. the Woman performed the Condition and afterwards died and Judgement was given for the Plaintiff that it was a terme and that the Husband should have it An Action of Debt was brought against an Executor and the Case was thus Administration was committed to one during the minority of the Executor who wasted the Goods of the Testator and after the Executor attained the Age of seventeen years an Action of Debt was brought against the Executor and the opinion of the Court was prayed whether he might plead generally ne unques Executor or excuse himself by pleading the special matter and the Court doubled but most safe to plead the special matter An Action of Debt was brought for Rent reserved by Indenture payable at two Feasts or within twenty daies then next following and the Plaintiff declared upon a Lease for the Rent and because ten pound at the Feast of the Anunciation 10. Jacobi was behind and unpaid the Action was brought the Defendant pleads Non demisit and a Verdict for the Plaintiff and after a Triall exception was taken to the Declaration because it was not alleadged that the Rent was arrere at that Feast and twenty daies after but it was not allowed after a Verdict because he should have taken advantage thereof before RAtliff versus Executors Pasch 15. Jacobi An Action of Debt brought upon an Obligation to perform Covenants in an Indenture The Defendant pleads performance of the Covenants the Plaintiff alleadges a breach upon this Covenant that the Lessee should injoy the Land without any lawfull interruption or disturbance of the Lessor or his Executors and shewes that the Executors entred upon him in the Land and outed him and shews not any interruption for any just cause and adjudged good in the upper Bench. WHitton versus Bye Trin. 16. Jacobi It was adjudged in the upper Bench in an Action of Debt brought by a Lessor against a Lessee for years for Rent reserved during the Tearme being behind and unpaid that a Release pleaded to be made by the Lessor to the Lessee six years before the Rent was arrere of all Demands was a good Barr One cannot reserve a Rent to a stranger it must be reserved according to the privity WAinford Administrator Kirby versus Warner Trin. 13. Jacobi rotulo 1906. An Action of Debt brought upon a Bond to which the Defendant pleads that the intestate was indebted to him in such a sum and that he retained c. in his hands to satisfie himself of the Debt due to him And that he had not assets over to satisfie the Plaintiff to which Plea the Plaintiff demurrs because he did not plead generally fully administred but an Exception was taken because he shewed not that the Condition of the Bond was for payment of Money STone versus Goddard Trin. 14. Jacobi rotulo 2258. An Action of Debt brought upon divers Emissets of divers Wares Videlicet unum ahenum for five shillings unum scabum for six shillings and so divers other words which the Court could not understand what they signified in regard no Anglice was put to them and the Defendant pleaded Nil debet per patriam and the Jury gave a Verdict for the Plaintiff and Damages given for the whole Debt and moved in Arrest of Judgement and Judgement that the Plaintiff should have no Judgement for the insufficiency of his Declaration WEeks versus Wright unum Clericorum R. B. The Plaintiff exhibited a Bill against the Defendant for Money due upon an Obligation and Issue was joyned and the Cause tried and a Verdict for the Plaintiff and after Triall the Defendant moved in Arrest of Judgement that the Bill was not filed that it was not helped by the Statute of Jeofayles nor within that Statute for it is an Original but afterwards the Court granted that a new Bill should be filed so that the matter might be put to arbitrement and if the Arbitrators could not determine the matter the Court would And note the Court seemed to be of an opinion that the want of a Bill is not helped by the Statute WItchoct Linesey versus Nine Trin. 9. Jacobi rotulo 726. An Action of Debt brought upon an Obligation to perform the Covenants contained in an
was entred in haec verba Noverint universi per praesentes me Thomam Keyes tenerie firmiter obligarie Edw. Dodson c. Anno Regni Reginae Dom. nostri Jacobi c. Rege Defensor suis de Scotia sexto Angliae quadragesimo secundo 1608. And upon this the Defendant demurred and adjudged for the Plaintiff for there are two principal things to be contained in one Obligation first the parties to whom secondly the summ in which one party is bound and they are both here expressed sufficiently to the view of the Judges for both the Obligor and Obligee are well named and also the summ is well expressed to be ten pounds but those words by which it may be gathered that the party intends to binde himself are found in false Latine Videlicet tenerie obligarie in which words there is onely an e. too much and it is true false Latine as it is 10 H. 7. shall abate a Writ because the party may purchase a new Writ but it shall not overthrow an Obligation for the party cannot be again bound when he will and although there is no such year of the Reign of the King as of Scotland the sixth c. it is not material for it is good though it have a false Date as 13 H. 7. Kelly and the party may surmise a Date in his Declaration and it is good and the Defendant must answer to the Bond and not to the Date and the Law is the same if it have an impossible Date as the 30. of February whereas there is but eight and twenty Dayes in February yet it is good but in the principal Case it is helped by the Year of our Lord which is certain and sufficient and the Declaration good which had omitted the year of the King and put in the year of our Lord and Judgement was given by the opinion of the whole Court HAwes versus Leader Hill 8 Jacobi Hawes brought an Action of Debt against Leader Administrator of Cookson the Case was Thomas Cookson the nineteenth of February 20 Jacobi for twenty pounds paid into the Defendants hands by the Plaintiff grants all his Goods mentioned in a Scedule annexed to the Deed and gives possession of the goods by a Platter and the goods remained in his house as they were before to be carried away upon demand by the Plaintif and covenants that the intestate his Administrators c. should safely keep them and quietly deliver them and to perform that covenant the intestate binds himself in forty pounds to the Plaintiff and afterwards Cookson died and the Plaintiff the sixteenth of March the sixth of King Iames demanded the goods of the Defendant being Administrator and he would not deliver them by reason whereof the Plaintiff brought his Action and in his Declaration shews in specie what goods were contained in the Scedule the Defendant pleads the Statute of the 13 Eliz. of fraudulent Deeds and gifts c. and further sayes that Cookson the intestate the twelfth of February 2 Jacobi was indebted unto divers persons and names them in severall summes amounting to a hundred pounds and being so indebted the nineteenth of February 2 Jacobi made the Deed of gift as is above declared being then of those and other goods possessed amounting to fourscore pounds and no more and that it was made by fraud and covin between Cookson and the Plaintiff to the intent to deceive his Creditors named and shewes how that Cookson notwithstanding the Deed of gift occupied and used the Goods all his life and died and that Administration was committed to the Defendant the Plaintiff replies that the Defendant had assets in his hands to satisfie the Debts demanded and further sayes that the Deed of gift was made upon good considerations upon which they were at issue and at triall at Huntington Assises Cook rejected the Triall because the Issue was not well joyned and a Replender ordered upon which the Defendant pleaded as is above and the Plaintiffe demurred and adjudged for the Plaintiff first because the Defendant had not averred in his Barr that the Debts due yet certain unpaid to the Creditors named for there was four years time between the Deed of gift made and the death of the intestate in which time the Debts might well be presumed to be satisfied Secondly the Defendant did not shew that the Debts due to the supposed Creditors were by specialty and then the matter of his Plea is not good for the Defendant cannot plead such a Plea but to excuse himself of a Devastavit and that could not be as this Case is for he being Administrator is not chargeable with the Debts if they be not upon Specialty Thirdly the Defendant supposed that it would be a Devastavit in him if he should deliver the Goods to the Plaintiff which were contained in the Deed of Gift but that cannot be for those Goods in the hands of the Plaintiff are liable to the Creditors as an Executor of his 〈◊〉 wrong if the Deed of Gift be fraudulent And fourthly it may be the Creditors will never sue for their Debts and by that means the Defendant will justifie the Detainer of the Goods for ever which would be very inconvenient But if the Defendant had pleaded a Recovery by any of the Creditors and that such Goods to the value c. had been taken in Execution this had been a good Plea Fifthly the Defendant is not such a person as is inabled by the Statute of 13 Eliz. to plead the Plea aforesaid for the Statute makes the Deed void as against the Creditors but not against the party himself his Executors or Administrators for against them it remaines a good Deed of Gift and this by the opinion of the whole Court SAllows versus Girling Pasch 9. Jacobi The Plaintiff brought an Action of Debt upon a Bond and the Condition to stand to the Award of A. B. C. D. of all Actions Quarrels and Demands c. so that the said Arbitrement were made in writing before such a Day by the said A. B. C. D. or by any two of them under their hands c. The Defendant pleads that the said A. B. C. D. nor any two of them made no Award the Plaintiff replies that A. and B. two of the Arbitrators before the Day by writing under their hands c. made an Award and set forth the Award and assigned a Breach in the Defendant for not paying of three pounds at a Day past limited by the Award to which the Defendant demurrs and it was adjudged the Plaintiff and the Question was whether the Award made by A. and B. alone were good or no because the Submission was to four named and in the Premises of the Condition the Defendant is bound to stand to the Award of four also yet it was adjudged by the Court upon consideration had upon every part of the Condition that the Award made-by two alone is good for the
the Judgement it is made to be by the Coroners yet it is not helped in this Case for the warrant of the Roll is the Clerk of the Assises Certificate and thus is that the Tales was returned by the Sheriff and the Court cannot intend it to be otherwise then is certified and thirdly the name of the Juror in the Tales which is Gregory is made in the Entry of the Judgement to be George and although the will shall be amended in this point according to the Certificate of the postea then in the other point of the Return of the Tales by the Sheriff it is not amendable and so it is error every way and the Judgement was reversed by the whole Court BRidges versus Enion Hillar 9 Jac. The Plaintiff declares how that he and the Defendant February tenth Anno 7. submitted themselves to the Award of S. R. Bodenham who awarded they should be friends and that the Defendant should pay the Plaintiff ten pounds at Miasummer following at such a place and the ten pounds being unpaid the Plaintiff brought his Action the Defendant pleads in Barr a release made by the Plaintiff to him of all demands which was made the tenth of April before Midsummer when the Debt was to be paid and the release was of all demands from the beginning of the world untill the tenth of April and shows the Release to the Court to which the Plaintiff demurres and adjudged against the Plaintiff for although the sum of Money awarded is not grounded upon any precedent Debt or contract between the parties yet by the opinion of the Court it lies in demand presently and the Plaintiff might assign it by his will and the Executor should have it and by the spirituall Law Administration may be granted of it before the day of payment if the Plaintif dye before yet it is not recoverable before Midsummer nor will any Action ly for it but it is a duty presently by the Award and as the award is perfect presently as soon as it is pronounced so are all the things contained in the Award if they be not made payable upon a condition precedent on the part of one of the Parties as if an award be made that if the Plaintif shall give to the Defendant at Midsummer one load of Hay that then upon the Delivery of the Hay the Defendant should pay the Plaintif ten pounds in this case the ten pounds cannot be released before the Day for it rests meerly in a possibility and contingency for it becomes a Duty upon the Delivery of the Hay onely and not before and therefore it is like the Case 5 E. 4. 42. of a Nomine pene waiting upon the Rent which cannot be released untill the Rent be behinde for the not paying the Rent makes the Nomine pene a Duty and the Case in question is like the Case Littleton 117. where a man is bound to pay Money at a Day to come for a Release of Actions before the Day cuts off the Duty because by 7 H. 7. 6. it is a Duty presently and the Case is stronger here because the Release is of all Demands which observe MOrgan versus Sock Pasch 10. Jacobi Sock brought an Action of Debt upon an Obligation of fourteen pounds entred into by Ar. Morgan Anno 1. Jac. against Tho. Morgan his Administrator the Defendant pleads that after the Death of Arth. and after Administration was to him committed to wit the 16 of September Ann. 6. the Plaintiff brought his Original against him of which he had no notice nntill the 24. of February Ann. 6. before which Day the Defendant was upon the Exig for not appearing which Exig was returnable Tres Pasch after and that the 17. of Febr. which was before the notice his Letters of Administration were revoked by the Archbishop and granted to Rich. M. the Brother of Arth. which Rich. is now Administrator and that he at the time of revoking the Administration had divers Goods of the Intestates in his hands and shews them what they were to the value of two hundred pounds and that he after the Administration revoked and before notice of the Suit had delivered them over to Rich. to wit the 22. of February 6. Jacobi and that he at the time of the Administration revoked had fully administred all the Goods of the Intestates besides the Goods delivered to Rich. c. The Plaintiff replied that the Administration was revoked by Covin between the Defendant and Rich. and upon that they are at Issue and the Jury found it to be Covin by reason whereof the Plaintiff had a Judgement to recover the Debt and Damages of the Goods and Chattels of the said Arth. at the time of his Death being in his hands to be levied and upon that Judgement he brought a Writ of Error and assigned for Error that the Judgement ought to be conditional to wit to recover the Debt of the Goods of the Intestate if so much remain in his hands and not absolutely But the Judgement was affirmed by the whole Court for where the Judgement may be final and certain there it shall never be conditional And because it appears by the Defendants Plea that he had two hundred pounds in his hands of the Intestates Goods it would be in vain to give Judgement against him if he had so much in his hands seeing he himself hath confessed by his Plea that 〈◊〉 more in his hands then would satisfie that Debt and if 〈…〉 could not levy the Debt in the Defendants hands he may upon the Defendants 〈…〉 Damage return a Devastavit and this by the opinion of the whole Court and then there was shewed to the Court a President in the Common Pleas to that purpose DOnghty versus Fawn Mich. 11. Jacobi The Plaintiff declares upon an Obligation of an hundred and twenty pounds dated 2. Novemb. 43. Eliz. And the Condition was that one Edw. Astle by his last Will in writing of such a Date had disposed the Wardship of the Defendant whereof the Defendant was possessed c. if therefore the Defendant do save and keep harmlesse the Plaintiff c. from all Charges and Troubles c. which may happen to the Plaintiff c. for or by reason of the last Will of the said Ed. A. or from any thing mentioned in that touching or concerning one M. Fawn or any Legacy or Bequest to her given or bequeathed or otherwise from Ed. A. to her due then the Obligation c. The Defendant pleads that the Plaintiff was not damnified The Plaintiff replies that after the Obligation made one M. Smith in the behalf of Jo. and Ed. A. Sons of the said Ed. A. named in the Condition did exhibite a Bill against the Plaintiff as Administrator of A. in the Chancery for the payment of the Portions of the said Sons to which Bill the Plaintiff by way of Answer pleaded fully administred and for the making good thereof sets
concurrent or immediate Jurisdiction to which appeal may be made and that the Arch-Bishop hath ordinary Jurisdiction in all the diocesse of his Province and this is the cause that he may visit but this Jurisdiction is bound and tied up to the Ordinary and when he will leave that at large then the Arch-Bishop may proceed as he is Arch-Bishop and the cause of request need not to be contained in the Instrument for when the power which was bound up is unbound and at large then he may proceed Doctor Talbot that the request is referred to three to the Bishop Dean and Arch-Deacon And the persons to whom the request is to be made are three The Arch-Bishop two Bishops three or superiour Judg and the Bishop and his Commissary are all one and request made by the Commissary shall be as good as request made by the Bishop himselfe Also that the President may transmit and make request to the Emperour as it appeares in the Booke of Justinian of the Lawes 2. Book So Baldus in reference made of inferiour Magistrates to Superiour doth defend that the Arch-Bishop is Judge of the whole Province yet is bound So Speculata in his Title of Relations of which relation shall be made So in the Councell of Antioche that the Metropolitan is mediate Judge in the first part of the Canon and for that relation shall be made to him Passonilis de officio c. disputes If the Arch-Bishop may have consistory in the Diocess of the Ordinary Hostiensis that the Ordinary may transmit a cause though the parties be unwilling Panormitan in capite pastoralis 8. Question 6. decretalls of the Canon Law Philippus Francus upon the decretalls of the Canon Law That the Arch-bishop cannot meddle in the Diocess of any Ordinary without his assent Dominicans upon the same Decretall And so he concludes that when the Ordinary makes a request to the Arch-bishop hee may meddle without the assent of the parties and the stranger when the parties assent And they agreed that generally the Arch-Deacon ought to transfer to the Bishop and so the Bishop to the Arch-bishop But they agreed also that here in England it was prescription and usage that every Arch-Deacon hath used to appeale immediately to the Arch-Bishop and so ought the Request within this statute to be made accordingly Also they agreed that if a man inhabite in one Diocess he hath cause to sue for Tithes in the same Diocess in which he inhabits and in another Diocess there he ought to sue in the Diocess where the Defendant did inhabite and not where the Tithes are payable nor where the Plaintiff inhabits and the Principall case was ordered accordingly Michaelmas 1611. 9. Jacobi in the Common Bench. Enby versus Walcott THe Defendant was sued before the Ordinary in the County of Lincoln for defamation And the Suit was begun before the last generall pardon ex officio and the Costs taxed after the time limited by the pardon and Prâ—hibition was granted in so much that all things promoted ex officio are discharged by the pardon and in so much as the principall was pardoned the Costs being but as accessory shall be also pardoned notwithstanding that they were taxed after the pardon Powis against Bowen UPon consideration had of Instructions given to the President and Councell of Wales it was resolved by all the Justices of this Court that the Councell there ought not to proceed upon English Bill which conteins title But the forme of that ought to be onely that the Plaintiff was in possession for three years and that the Defendants which ought to be alwayes more then one riotously and with force have entred upon him and so ought to be restored to his possession And in so much that the Bill containes Title in this case and that the Defendants have entered upon him and disseised him in forme of Assise and doth not say riotously and with force Prohibition was granted Butler against Thayer THe Lord Admirall granted a Commission under the Seale of the Admirall Court to Thayer for measuring of all the Corne which shall be transported from one Town or place to another within the Creeks which are within the first Bridges and to have so much for every bushell measuring and granted that if any resisted to arrest them and commit them till they had found sureties to appeare in the Admirall Court And at Milton and Raineham in Kent Thayer endevoured to put his Commission in execution and Butler resisted him and was for that arrested and sued in the Admirall Court and for stay of that prayed Prohibition it was granted in so much that the Admirall hath not power to meddle with the first Bridges for civill causes but only for Maymes and death of men but for causes made upon the high Sea where the Marriners have the better knowledg in the Common Law he cannot try that See the time of Edw. 1. Avowry 192. 8. Ed. 2. 45. Ed. 3. Stamford 51. 7. R. 2. Statham Trespass Sir John Watts CErtain goods of a Subjects of the King of Spains were forfeited upon the high Sea and after were brought here into England there sold to Sir John Wats and the goods were attached in the hands of Sir John Watts by Process out of the Admiralty and there a libell was exhibited against the goods remaining in the hands of Sir John Watts and Sir John Watts was not made party to the Suit And Sir John Watts prayed a Prohibition in so much that-they bought them in open Market And by this Suit in the Admirall Court the property will be drawn in question there where the Suite was prosecuted in the name of Awlenso de Valasco the Spanish Ambassador Legier here And Prohibition was granted Michael 1611. 9. Jacobi in the Common Bench. Jennings against Audley PRohibition was prayed to the Admirall and the Libell shewed to the Court which contained the Contract was made in the straits of Mallico within the Jurisdiction of the Admiralty and doth not say upon the deep Sea And it was agreed that in all eases where the Defendant admits the Jurisdiction of the Admirall Court by pleading there Prohibition shall not be granted if it do not appear by the Lybell that the act was made out of their Jurisdiction and that though that Sentence was given yet if that appears within the Libell Prohibition shall be granted Note that a man was sued before the Ordinary in the Diocesse of Norwich for infamous words and after sentence there given he appealed to the Arches and the first sentence being there affirmed he appealed to the Delegates and before that the proceedings were transmitted Prohibition was granted by this Court in so much that the offence was pardoned by generall pardon But this notwithstanding the Register transmitted the proceedings And after for his fees due for that hee exhibited a Bill in the Court of Requests and Prohibition was prayed in this Court for to stay his
Statute and if the Words do not extend to that then the Equity of the Statute shall not extend to that and he said that Copy-hold is not within any of the Statutes which are made in the same yeare as the Statute which gives Elegit and such like and to Littleton that an Estate by copy is where Lands are given in Fee-simple Fee-taile and that Formedon lies for that with which agrees 10 Ed. 2. Formedon 55. It seems that the Estate taile here mentioned shall be intended Fee-simple conditionall at the Common Law and the Formedon in Discender which was at the Common Law for alienation before Issue And so Littleton shall be intended For the Estate is within time of memory see Heydons case that a Copy-hold Estate is an Estate in being within the Statute of 31 H. 8. And Manwood there said that insomuch the Estate of that is created by custome and the Estate taile is created by Statute yet it shall not be within the Statute and he said that the case of 15 H. 8. B. Copy of Court 24. is repugnant in it self in the words of Formedon for he saith though that Formedon was given by Statute and was no otherwise in Discender yet now this Writ lies at the Common Law and it shall be intended that this hath been a custome there time out of minde c. And so he concluded and prayed Judgment for the Plaintiff Pasche 9. Jacobi 1611. in the Common Bench. Yet Bearblock and Read SEE the beginning before Hillary 8. Jacobi this Case was argued by Hutton Serjeant that the Plaintiff in the Action of Debt ought to Recover for if Executor may pay Debt due by the Testator by Obligation before Debt due by Judgement this shall be a Devastavit as it is resolved in Trewinyards Case 6. and 7. Edward 6. Dyer 80. 53. And he shall be charged for the Iudgement with his owne goods And so it was adjudged between Bond and Hales 31. Eliz. that Judgement at the Common Law shall be first satisfied before the Statute which is but a Pockett Record and Medium redditer in invitum Also it was adjudged in Harrisons Case 5. Coke 28. b. That Debt due upon an Obligation shall be first payd before Statute with Defeasans for performing of Covenants the which Defeasens is not broken and also it is adjudged between Pemberton and Barkham here cited that Judgement shall be satisfied before Statute Merchant or Staple or Recognizance though that the Statute be acknowledged before the Judgement had by the Testator See this Case in Harrisons Case 5. Coke 28. b. and in 4. Coke 60. a. Sadlers Case upon which he infers that if an Executor first satisfie a Statute or a Recognisance before a Judgement that this shall be a Devastavit as well as if he satisfies an Obligation first as in Trewynyards Case and that when the Plaintiff which hath Judgement the Executor may aid himselfe by Audit a querela by this matter subsequent Quere of Doctor Druryes Case as in 7 H. 6. 42. in Detinue against Gamishe and Judgment had for the Plaintiff If the Judgement be reversed restitution shall be made to every one which hath losse So here by Audita Querela if the Executrix hath not more then was taken in execution by the Statute and it seemes to him that the Judgement in the Scire Facias shall not be a Barr in this Action for the Judgment remaines Executrix and the Plaintiff may have Action of Debt upon that But of the contrary if the Plaintiff had brought Action of Debt upon the Judgement and had been barred then shall be barred in Scire Facias also But the Plaintiff this notwithstanding may have Scire Facias upon surmise that there are new assets come to the hands of the Executor and so he concluded and praied Judgement for the Plaintiff Nicholls Serjeant for the Defendant relies only upon the Judgement had upon the Scire Facias and that till that he Defeated the Plaintiff cannot maintaine Action of Debt for the Action of Debt is nothing but demanding of Execution and for that till the first Judgement be Defeated the Plaintiff hath no remedy at the Common Law All things which barr the Execution of the Judgement in Scire Facias these shall be Barrs in an Action of Debt as in Baxters Case here last adjudged in an Action upon the Case for slanderous words the Defendant pleads that he had justified the speaking of these words at another time in another Action brought against him and had a verdict and Judgement upon that and so demands Judgement and adjudged a good Plea till the first Judgement is reversed for Judgement is the saying of the Law and 13. Eliz. Dyer 299. 34. in Debt for Costs recovered in a Writ of entry the Defendant pleads that the Plaintiff hath sued an Elegit which was Executed and a good Barr in an Action of Debt and so 1. and 2. P. and M. Dyer 107. 24. In Debt for Dammages recovered in Assise the Defendant pleads in Barr that after the verdict given and before Judgement the Plaintiff entred into the Land and there no Judgement is given But it seemes if the Plaintiff fayl of Course that the Common Law prescribes that then he shall not have Execution for of those things which rightly are Acted let there be Executions but if the Defendant in the first Action had pleaded a release and Judgement was given upon that against him he cannot plead that againe for it runs into the thing Judged 34. Ed. 3. in Debt against an Executor and part of the assetts found the Plaintiff cannot have new Scire Facias without Averrment that there are new assetts and 34. H. 6. Action with averment that there are assets and Judgement good both waies and presidents shewed of both Courts And he intended that the Executor could not have helped himselfe by Audita Querela unlesse he feares to be impleaded but after Execution he cannot have Restitution and so concluded and praied Judgement for the Defendant Coke cheife Justice that there cannot be a Devastavit in the Wife unlesse that it be voluntary payment by her for the Statute of 23. H. 8. gives present Execution of a Statute Staple without Scire Facias So that the Wife had no time to plead the Judgement and for that this unvoluntary Act shall not be a Devastavit for she is no agent but only a sufferer And at the Common Law if the Plaintiff hath Judgement in an Action of Debt after the yeare he hath no remedy but new Originall and this mischeife was remedied by the Statute of Magna Charta which gives Scire Facias in place of new Action But it seemes to him that the Barr in the Scire Facias shall remaine good Barr till it be reversed as in 2 Rich. 3. A man hath election to have action of Detinue or action of Trespasse and he brings his action of Detinue and the Plaintiff wages his Law and after
is a stranger and doth not know if these Defendants are Executors or Administrators as it is said by Danby 9 Edw. 4. 13. And he conceived that the plea is good that the Defendants have not goods besides the goods which do not amount c. And divers presidents were cyted by him to this purpose as Trin. 18. Eliz. Rot. 1405. between Blanekson and Frye Hillary 40 Eliz. Rot. 902. Smalpeeces case and Trin. 44 Eliz. Rot. 1900. between Goodwin and Scarlet in all which the pleadings were all one with the plea in question and no exceptions taken to that and infinite other presidents may be shewed in the point for which cause he demanded Judgment for the Defendants Coke cheife Justice seemed that in an action brought against one as Executor he may plead that Administration was committed to him for such intent that the dead dyed Intestate and demands Judgment if action without traverse that he was Executor and with this agreed 1 Ed. 4. 2. a. 20 H. 6. 23. And so if the Ordinary be charged as Executor he may plead that he administred as Ordinary without traverse that he was Executor but only shewed that the party dyed Intestate and the Plaintiff ought to reply that he made a Will and the Defendant proved that and traverse that he dyed Intestate and with this agreed 9 Edw. 4. 33. and 1 Edw. 4. 11. And if an action be brought against Executor of his own wrong hee may plead that administration is granted to such an one and the Party dyed Intestate and demand Judgment if action for he shall not be charged for more goods then came to his hands But if a man administer of his own wrong and after rightfull administration is committed to him yet he may be charged as Executor of his own wrong insomuch that Right of action is attached in him But this seems for the goods that he hath administred before rightfull administration committed unto him And he cyted 14 Eliz. Dyer 305. b. where in debt brought against one as Executor which pleads never Executor nor ever administred as Executor and the Plaintiffe replies that he administred as Executor of the Will c. and so to Issue And in Evidence the Defendant shews Letter of administration to him committed of goods of the dead by which he administred them and before that he did not administer and this seems there to be good Evidence but the Book was Quere of that and for that he would rather plead that in abatement of the Writ and so the Book inclined also And he conceived here that the medling with the goods here by the Defendant as Administrator made him Executor of his own wrong insomuch that it was for Funeralls and when it is a work of Charity and the other is to preserve them And the Defendant hath not conveyed himselfe to be Executor insomuch that he said that administration was committed to him by an Arch-Deacon and he doth not say that Administration of right belonged to him to commit insomuch that hee hath but a sub-ordinate Jurisdiction And the Common Law doth not take notice that he nor no other but the Ordinary hath such power and for that the power of all which have such subordinate and peculiar Jurisdiction is pleaded that ought to be shewed as it seems by 1 Ed. 4. 2. a. b. 22 H. 6. 23. And the rather when this is pleaded by the Administrator himselfe which ought to have notice of that and make title to himselfe and if so it be then he conceived that the Recovery by Hornego was void and so all the goods confest remain as Assets Also he conceived that if the Executor allow a Writ to suffer Judgment to be had against him upon a Writ which is abateable he shall not have allowance of that but this shall be returned as Devastavit as in 10 Edw. 3. 503. a. If the Tenant vouch when he might have abated the Writ he shall lose the benefit of his Warranty So here and Com. Manwells case 12. a. 22 H. 6. 12. 〈◊〉 Also he conceived if a man be charged as Administrator where he is no Administrator he cannot plead that he never administred as Administrator but he ought to traverse the Commission of Administration as it appears by 21 H. 6. 23. And it seems also to him and by 9 Edw. 4. 33. that if a man be an Executor of his owne wrong and after administration is committed to him and he is charged as Executor after administration committed that the Writ shall abate otherwise if administration be committed hanging the Writ So if a man be made Executor and hee not knowing of that Iues letters of Administration he shall be named Administrator and if after when he hath notice of the Will he proves it then he shall be impleaded by the name of Executor for in such manner as the power is given to him by the Bishop he shall be charged and it seemes though that he plead where he is Administrator and is sued as Executor or otherwise in such manner that hee might have abated the Writ or suffer Judgment yet the Writ shall abate and he intended also that Executor of his owne wrong might pay debts due to another and shall be discharged and shall not be charged with more then he hath in his hands And if two Executors are joyntly sued and one confesse the action this shall bind him and his companion also for so much as he hath in his hands But if an Executor of his own wrong confesse the action this shall not prejudice him which is rightfull Executor and so he conceived that judgment ought to be given for the Plaintiff Warburton Justice conceived that the Barr is good notwithstanding that he did not shew that the Arch-Deacon had power to grant Administration insomuch it is no Inducement and the Defendant doth not relie upon it as Littleton saith in Trespasse where the Defendant pleades that it was made by two and the Plaintiff releases to one and if the Defendant pay due Debts it is not materiall whether he have Authority or not though that it be in another respect As if a man be Indicted of man-slaughter and aquitted and after is Indicted of Murder by the same man he may pleade another time aquitted insomuch that these are matters of substance But here it is but of forme and then if it be not shewed it is not materiall But the matter upon which he relied was insomuch that the Action was brought against two Executors and one hath confessed the Action And he intended without question that if this shall bind his companion and for that he will not dispute the other questions but declares his opinion cleerely that the Plaintiff ought to have Judgement against both these Defendants upon the confession of one and this shall bind his companion Wynch Justice conceived that the Plea is good by Administrator without traverse insomuch that it is to the Writ as it
Prerogative of a Prince and is part of Law and stands with it and this is reasonable custome and so it hath been adjudged in the Kings Bench the reason is insomuch that the custome is the life of the Copy-hold upon which that depends and the party is but a Conduit to nominate the Tenant and when he is nominated and admitted then he takes by the Lord and that stands with the rules and reasons of the Common Law that is that a man devises that a marryed wife shall sell his Land and she may sell notwithstanding the Coverture for she upon the matter nominates the party and he takes by the Devise and by this reason she may sell to her Husband as it is agreed by the 8 of Assises And also by devise that Executor shall sell Executor of Executor may sell notwithstanding that he is not in Esse at the time of the Devise and so a Lease for life to one Remainder to him that J. S. shall nominate is good after nomination and then he takes by the first Livery as it is agreed in 10 H. 7. and J. S. Only hath the nomination and nothing passes to him and with this also agrees 43 Ed. 3. 19 H. 7. So if a man makes a Feoffment to the use of himself for life with diverse Remainders over and power to himself to make Leases for three lives this is good as it is agreed in Mildmayes Case and Whitlocks Case 8 Coke and yet the Estate doth not passe from him but out of all the Estates and he upon the matter hath only the nomination of the Lessee and of the lives for all the estates apply their forces to make that good and the 2 El. Dyer 192. 23. Custome that the Wife of the Copy-holder for life shall have her Widdows Estate is allowed to be a good custome and there an Estate for life upon the matter is raised out of the estate for life and annexed to it and this is by the Custome and the reason he conceived to be for that that Women should be incouraged to marry with their Tenants and by that the marriage with the Tenant and the custome in this Case doth bind the Lord and so 4 Coke there are divers customes by which the Lord is bound and the 8 Coke Swaines Case where the Copy-holder by custome hath the Trees in Case where the Lord himself hath them not so if the Lord sell the Waste yet the Copy-holder shall not loose his Common in that notwithstanding that the Estate of the Copy-holder be granted after the Wast is severed from the Mannor and it is agreed in Waggoners Case 8 Coke that custome is more available then the Common Law And for that this cnse hath been adjudged in this point between Crab and Varney by three or four Judges he would not further question it And for the second custome he agreed that one bare Tenant for life could not meddle with the Sale or falling of the Trees but here is a Copy-holder for life which hath Aut ority given by the Lord and the Custome to dispose the Trees and he saith that Bracton and the old Laws of England calls Copy-holders Falkland and saith they cannot be moved but in the hands of the Lord they ought to surrender and agreed that this is within the Rules of the Common Law for Consuetudo privat communem legem and the Law doth nor give reason of that for this is as a ground and need not to be proved for the reason of every custome cannot be shewed as it was sayd in Knightly and Spencers Case and he sayd that Mannors are divided into three sorts of Tenures The first holds by Knights Service and this is for the defence of the Lord and they have a great number of Acres of Land and pay less Services The second holds by Socage and this for to plow and manure the Demesnes of the Lord and they shall pay no Rent nor do other services and this was at the first to draw such Tenants to inhabit there and for that they have Authority to dispose and sell the Trees growing upon theit Tenements The third holds by base Tenure and these were at the Will of the Lord and these were to do Services and then these in many Cases have liberty for their Wives in some cases to dispose that for another life and to dispose the Trees and so it is in Ireland at this day where some give more and greater priviledge then others to induce Tenants to inhabite and manure their Land for there every day is a complaint made to the Councell for inticing the Tenants of the Lord and 14 Ed. 3. Bar 277. The Tenant preseribes to have the Windfalls and if the Lord cut the Trees that he may have the Lops and 11 H. 6. 2. The Keeper of the Wood prescribes to have Fee and 46 Ed. 3. is prescription to stint the Lord in his own Soyl and all these are for the Incouragement of Tenants to inhabit upon the Land and time of Ed. 1. Prescription 75. A stranger prescribed to have all the profit of the Land of another for a great part of the yeare and to exclude the giver of the Soyl 6 Ja. It was adjudged in the Kings Bench between Henrick and Pargiter that the Lord may be stinsted for Common in his own Laud and in the Book of Entries 563. It appears that by Custome Copy-hold granted Sibi suis was a good Fee-simple and the reason of all this is shewed in the 4. Coke amongst his Copy-hold Cases where it is agreed that the Life of a Copy-hold Estate is the customes and then if the Custome gives life to the Estate this gives life also to all the Priviledges which are incident to the Estate and the Lord is but the means to convey the Estate from one to another and as in 38 Ed. 3. A man hath a House as Heir to his Mother and after a stranger grants Estovers to him and his Heirs to be burnt in the same House these Estovers shall go to the Heirs of the Mother insomuch that they are incident to the House so of Priviledg incident to a Copy-hold Estate by the Custome and at the Common Law if Tenant for life hath cut the Trees he hath not forfeited his Estate for he was trusted with the Land and was not punishable till the Statute of Glocester and at this day if there be a mesne Remainder for life which remains in Contingency and that shall prevent that the Tenant shal be punished for this waste and to make innovation of this custome will be dangerous and for that he concluded that the Plaintiff shall be barred Warburton Justice agreed And the first Custome that is for the nomination of the Successor he conceived that it is good and that it is good by the Common Law and good by Custome by the Common Law as a Lease for life remainder to him which the Tenant for life shall
which the Executors are to be charâ—ed meerly as Executors there the Writ shall be in the Detinet but when the thing grows due in part upon the contract of the Intestate and part by the Occupation of the Administrator as in our case there it shall be brought in the Debet and Detinet he cited a Case which was adjudged 26 El. in the Common bench between Scrogs the Lady Gresham where it was resolved that the Lady Gresham was made chargeable to the Debts of her Husband by act of Parliament and Action of Debt brought against her in the Debet and Detinet and debated if this were well brought and after Argument adjudged that it was well brought in the Debet and Detinet for though she was not chargeable for the Debts of her Husband upon his own Contract yet where an act of Parliament hath made her chargeable and a Debtor and for that reason the Action shall be brought against her in the Debet and Detinet and to the principal case he cited the Case of 11 H. 6. 7. Where it it said by Babington Newton that if a man be Lessee for years and is in arrears for his Rent and makes his Executors and dyes and the Executors enter into the Land and occupy in this case for the Arrerages due in time of the Testator Action shall be brought against them in the Detinet but for Rent due in their own occupation the action shal be brought in the Debet and Detinet for that it rises upon their own occupation and with this agrees 20 H. 6. 4. And he sayd that he would demand this case of the Councell of the other part that is a man hath a Lease for yeares as Administrator and Rent incurrs in his time and he makse his Executors and dyes and Administration of the Goods of the Intestate is committed over to another against whom shall the Action be brought for the Rent that is against the Executors of the first Administrator or against the second Administrator and it seems cleerly to him against the Executors of the first Administrator for their Testator had taken the profits which case proves that they shall not be charged meerly as Executors or Administrators but as takers of the profits c. And Occupiers of the land And this was his second reason of the nature of Profits insomuch that they were raised by the personall labour of the Executor or Admistrator and are their Goods as he sayd and they have them not meerly as Executors or Administrators and for that the Action is well brought as it is and he sayd that the Heir for Debt of the Father shall be charged in the Debet and Detinet and yet this was the contract of his Father but he is charged in respect that he hath the land and the occupation and profits of that so here insomuch that the Executors have the profit of the Tearm by the same reason they shall be charged in the Debet and Detinet and he resembled the case to a case put in Fitz. Na. Brâ—… In his Writ of Debt where a woman sole hath a lease for years and takes a Husband and the Rent incurrs and the wife dies the Husband shall be charged in the Debet and Detinet for this rent and the reason is because he hath taken the profits so here the Administrator hath taken the profits and is not answerable for the Profits unless they amount to more then the rent is And by the same reason the action is well brought against him as it is The third and last reason was for the Inconveniency and to that he sayd if this Action be brought in the Debet and Detinet there is no inconvenience but if it should be brought in the Detinet only then should the Administrator be charged but of the Goods of the dead where if he be not charged of his own proper Goods peradventure he shall not be so carefull to pay his rent but would stop the Lessor in his Action which should be trouble and vexation and so by this reason also he concluded the Action well brought in the Debet and Detinet and this was gaynsayd by Towse George Crooke and Harris of the other part and it seems to them that it should be in the Detinet only insomuch that the cause of this Action growes of the contract of the Testator and the Tearm is Assets in their hands and the Administrator hath the Tearm as Administrator and by the same reason the Occupation shall be as Administration and by consequence he shall be charged as Administrator and not otherwise and then the Action shall be brought against him in the Detinet only and that he shall be charged as Administrator they cited the Book of 14 H. 4. 28. Where it is sayd if a man hath a lease for years and makes his Executors and the rent incurrs in their time and action of Debt is brought against them and they make default he which first 〈◊〉 all come by distress shall answer according to the Statute of 9 Ed. 3. chapter 5. which Book proves directly as they say that they are charged as Executors and not otherwise and then it followes that the Action should be in the Detinet so it seems to them that in all Actions where they are named Executors or Administrators that the Action shall be brought against them in the Detinet only but in this action they ought to be named Executors or Administrators for he doth declare of a lease made to the Intestate and for that it seems it shall be brought in the Detinet only and this was the reason of Yelverton Justice which was of their opinion only against the other Justices and to that which was sayd that an Action shall be brought against the Heir in the Debet and Detinet for the Debt of his Ancestor they answered that this is now become the proper Debt of the Heir but it is not so in the case of an Executor or Administrator And it seems to Towse that if an Administrator hath a Lease for twenty yeares and makes a Lease for ten yeares rendring Rent and brings an Action for this Rent that the Action shall be brought in the Detinet only for that this is a new contract made by the Administrator and he hath gained new Reversion because it was derived out of the Lease for twenty yeares and so this shall be of the same nature and the Rent shall be Assets in his hands and in proofe of this he cited the book in 17. Ed. 3. 66. Where an Executor sold the Goods of the Testator and the Vendee made an Obligation to them for the money and the Executors brought an Action of Debt upon the Obligation and this was brought in the Detinet only And the exception was taken because it was duty of their owne contract and for that the Writ should be in the Debet and Detinet and yet the Writ
Michaell then it is cleer that the Lessor hath no remedy by way of distress for the Tearm is ended before and by Action of Debt upon the Contract he hath no remedy as it seems as this case is for the Contract is that the Rent shall be paid yearly during the Tearm then when the Tearm is ended the contract is determined and for that the cheife Justice sayd That if a man makes a Lease at Michaelmas for a yeare rendring Rent yearely at our Lady day and the ninth of October which is after Michaelmas that the Lessor hath not any remedy for the Rent of the last halfe yeare for that is not reserved to be payd yearly according to the contract And Yelverton Justice agreed that the Lessee hath election as above but he saith when that is behinde the tenth day after Michaelmas then the Lessor shall bring his Action of Debt and declare that the Rent was behinde at the Feast of Saint Michaell and shall not make mention of the ten dayes after and Coke Justice sayd That it seems to him that the Lessee shall not have the benefit of these ten dayes after the last Feast for the words of the Lease are rendring Rent yearly during the tearme at the Feasts aforesayd or ten dayes after so that the Lessee shall have the benefit of these ten dayes during the tearme but not after then he shall not have these after the last Feast of Saint Michaell for then shall the tearme be ended And after in Trinity Terme 8 Jacobi The Case was moved againe and then Flemming cheife Justice conceived That the Lessee shall not have ten dayes after the last Feast and this upon construction to be made reasonably for otherwise the Tearm being ended the Contract should be determined with the Tearm and so the Lessor should be without remedy for his Rent and he sayd that reservations are not taken so strictly according to the letter And for that he cited the case of Hill and Granger in the Com. fol. 171. Where a man makes a Lease for a year And the Lease was made in August rendring Rent yearely at the Annunciation of our â—ady and Michaelmasse upon condition of Re-entry In this case the first payment shall be at the next Michaelmasse after the making of the Lease and not at the Annunciation of our Lady though this is first in words and this by reasonable construction for otherwise this word Yearely shall not be supplied and of this see the Action and so he said in this case Rent is reserved yearely during the Tearme at the Feasts of the Annunciation of our Lady or Michaelmasse or ten daies after he shall not have ten daies after the last Feast But Williams held his old opinion that the Lessor hath no remedy for the last halfe years Rent and it was adjourned Hillary 7. Jacobi in the Kings Bench. Grymes against Peacocke IN Terspasse for his Close broken The Defendant justifies that it was used within the Mannor of D. that every Farmer of such a house and averred that that had been allwaies let to Farme had Common in the Lords wast The house came into the hands of the Lord in Possession And he granted the house and the wast to J. S. in Fee J. S. Bargaines and Sells the house to J. N. with all Commons Profits and Commodities used occupied and pertaining to the same And after grants the wast to another If the Grantee of the house shall have Common in the wast was the question And Yelverton argued that the Common was gone for if he shall have Common this shall enure as a new Grant of a Common but this cannot so enure for two reasons First when a man will grant a Common he ought to shew the place in certaine where the Grantee shall have this Common or otherwise the Grant is void But here no place is shewed and for that it cannot enure as a new Grant of a Common Secondly If that be a new Grant yet this hath reference to the usage that is Quod Vsitatum est c. And this Vsitatum is void for it seemes to him that Lessee for yeares cannot alledge a usage for every Vsitatum ought to go in one selfe same currant not interrupted as in ths case of a Coppy-hold But here every new Lease is a new contract and so the usage is interrupted and then the Grant having the reference to the usage and that is void usage nothing shall passe by this Grant and for that in Long 5. Ed 4. 40. If a custome be against Law And that is confirmed by the Act of Parliament this is void confirmation for it hath reference to a void custome so here this Grant hath reference to the usage and for that it seemes to him that the Common is gone Hutton Serjeant to the contrary and that the Grantee of the Messuage shall have common for this usage is not a thing by strictnesse in Law appertaining to the Land but this hath gained his reputation that that shall passe very well in a conveiance by apt words And for that it will not be denied but if a man makes a Lease for years to one and grants him Common for all his Kine c. And after this Lease expires and he makes a new Lease and grants such Commons as the first Lessee had that this shall be a good grant of Common to the Lessee So he said in this case this grant of the house with all profits and commodities used occupied and appertaining to the said Messuage shall be said a grant of such Common which other Lessees of this Manner have used and this by reasonable construction in Law to make good the conveiances of Lay-men according to the common speaking for Benigne sunt Faciende Interpritationes Chartarum c. and for that he cited the case of Hill and Grange in the Comment Where the case was That a man made a Lease for yeares of a house and a hundred Acres of Land appertaining to that though the Land be not appurtenant to the house yet insomuch that this hath been usually occupied with the house this shall passe as appertaining to it and so 26. Assis 38. A man makes a Lease for life rendring Rent and after grants over the Rent to J. S. and dies The Heire grants and confirmes to the Grantee and his Heires the same Rent with clause of distresse and the Tenant for life dies now is the Rent reserved upon the Estate for life determined and yet this shall enure as a new grant of another Rent in quantity So in Sir Moyle Finches Case the case of uses and Durham in Ejectione Firme A Lease was pleaded of a Mannor whereof the feilds in which c. Were parcell And Issue was joyned Quod non Demiset Manerium And upon this Issue found it was that there were not any Free-holders but diverse Copy-holders and this was allwaies knowne by the name of a Mannor and it was adjudged that
Corpus amended Debt upon two Bils and one not due and tried for the Plaintiff and moved in Arrest the Plaintiff released his Damages and had Judgement upon the Bill due Lessee of the Vicars Gleab-land shall pay Tithes Nota. Venire facias de D. or within the Parish of D. or de Parochia good Scire facias upon a Recognisance may issue out into any County Deprivation of a Minister may be given in evidence Best to have Damages severed upon two Contracts Breach for not acknowledging a Fine Nota. Feossment of Land in satisfaction of Debt upon a single Bill held naught A Steward of a Leet within the Statute of E. 6. against buying of Offices One thing in Action cannot be a satisfaction for another thing in Action Vpon a Request and none ready to receive and after a Request Damages shall be paid from the Request Nota. Nota. Nota. An Almoner would have acknowledged satisfaction and doubted Judgement against the Plaintiff for incertainty of his Count. Nota. Judgement for the Plaintiff Nota. Because the first Contract was not usurious the latter shall not No Action of Debt for Soliciting Fees Defendant pleads the Plaintiff was indebted to him and he took Administration and retained his own Debt in his hands Bailiff of a Colledge claims the Liberty of the University but denied to him Special Verdict Nota well Appearance though at another Day the same Terme saves the Bond. Demand necessary for a Nomine penae Costs omitted in the Roll and Error brought and demed to be amended Nota. The Venire facias mis-awarded The Defendant pleads that be was ready to grant and naught No Demand necessary Note this diligently Fully administred no good Plea by an Administrator to a Scire sacias to revive a Judgement had against the Intestate An Executor an Assignee in Law Nota. Nota. Nota. An Executor by wrong shall not by his Plea prejudice a rightfull Executor Condition of non-payment of Rent to re-enter the Rent was behinde but before re-entry accepted the Estate is confirmed by the Acceptance The Defendants name mis-taken in the Venire and a new Triall awarded No costs against an Executor Devise of the profits of the Land it self Debt brought against an Excutor after full age for Goods wasted by the Administrator during his minority Release of all Demands a good Barr in Rent not then due Judgement arrested for improper words without an Anglice The want of a Bill not helped by the Statute of Jeofayles To forbid no Breach The Defendant pleads a Plea by which he pretends the Plaintiff to be barred in another Suit but no Barr. One by his own Election cannot be Executor for part and not for part Tenants in common Severall Debts Debt lies by him to whose use money is delivered Debt upon a Statute of Perjury at a Commission issuing out of Chancery not ly Outlary pleaded in Barr and Nul tiel record pleaded and in the mean time the Outlary reversed Judgement that the Defendant should answer over No Escape lies against a Sherif vpon a Capias upon a Recognisance out of the Chancery Request to make Assurance generally and good Appearance upon warning and for default adjudged naught Action of Debt upon the Statute of E. 6. for Tithes Sufficient to say the Plaintiffe is Proprietor without shewing the Title Misprision of the Clerk amended after Triall Judgement reversed by Writ of error being in the disiunctive The Plaintiffe had no Interest but 〈◊〉 rendring of the Land Lessee at Will cannot determin his will within the year but must answer the whole Rent The Plaintiffe not bound to alleadge a speciall breach when the Defendants Plea continues speciall matter Debt for Flemish Money but demanded by the name of 39. l. English If the Obligor marry the Obligee the Bond gone Judgement obtained by an Administrator and after Administration revoked and party took in Execution and delivered because erroneous To plead an Appearance and not say Prout patet per Recordum naâ—gâ—… Nota. Award void for the incertainty for being the Judgement of one it ought to have plainness and certainty Judgement obtained by President of the Colledge of Phisicians his Successor after his Death and not his Executor shall have Execution Assurance Tithe shall be paid of Wood above twenty years growth if it be not Timber Variance between the Obligation and count shall not be shewed after imparlance Demand of Rent must be at the place of Payment Judgement reversed in an inferior Court for want of this word Dicit Want of an Original after a Verdict no Error but a vitious Original is Error Plea naught for want of a Traverse Nota. Plaintiff in Debt for Tithes need not be named Rector in the Plaint in the upper Bench. Tithes cannot be leased without Deed Judgement reversecâ— for Error in the Judgement If a Suggestion in part need proof and part doth not no Costs Judgement reversed for Error in changing the Defendants Additions Action upon the Statute for Tithes the Statute mistaken yet it being according to divers Presidents ruled good Bill abated for not naming an Infant Executor in the Action although Administration was granted during his minority Action upon the Statute 32 H. 8. of Arrerages of Rents Action lies not upon that Statute for Arrerages of Copy-hold Rents Action of Debt brought upon a Bill for money received to another use An Executor of his own wrong cannot retain Goods in his hand to pay himself Primo deliberat shall not be pleaded without a Traverse If the Plaintiff assign no breach he shall never have a Judgement though he hath a Verdict Rent reserved at Michaelmas or within ten dayes after due at Michaelmas A Judgement reversed by Writ of error notwithstanding a Verdict and the Statute of 18 Eliz. Executor shall not pay Costs upon the statute of 4 Jacobi cap. 3. How a reservation for Rent shall be construed One must not plead in discharge of the Obligation but of the Condition contained in the Obligation A contingent Debt cannot be discharged False Latine shall not overthrow an Obligation A Deed of gift good against him that makes it notwithstanding 13 Eliz. and against his Executors and Administrators Action brought upon an Obligation to stand to the Award of four or two of them Award made by two good Debt Judgement arrested for Nil shewing in what Court the Deed was inrolled Judgement reversed for want of these words in a Tales at Assises nomina Jurat c. By a Release of all demands money to be paid at a day to come may be released before the day If the Defendant confess he hath Assets the Sheriff may return a Devastavit Action of Debt brought against the Sheriff upon an Escape for one taken upon a Capias upon a Recognisance and adjudged that it would not lie Debt brought upon a Lease made to an Infant One may take his Executioâ— either against the principall or Bail at Election An Action of Debt brought upon a Bond