REPORTS OF Certain Cases ARISING In the severall Courts OF RECORD at WESTMINSTER In the Raignes of Q. Elizabeth K. James and the late King CHARLES With the Resolutions of the Judges of the said Courts upon Debate and solemn Arguments Collected by very good Hands and lately Re-viewed Examined and Approved of by the late Learned Justice GODBOLT And now Published by W HUGHES of GRAYS-INNE Esquire With two TABLES one of the Cases the other of the Principall Matter therein contain'd Quid juvat Humanos scire cognoscere Casus Si fugienda facis facienda fugis London Printed by T. N. for W. Lee D. Pakeman and Gabriell Bedell M.DC.LII An Alphabeticall Table of the Cases A ALlen and Patshals Case 162 Adams and Wilsons Case 244 Althams Case 262 Ayliff and Browns Case 337 Astley and Webs Case 411 Arnolds Case 455 Ashfield and Ashfields Case 456 B BVshies Case 32 Braches Case 69 Barker and Treswells Case 84 Bilford and Deddingtons Case 89 Bonefant and Sir Richard Grenfields Case 92 Brayes Case ib. Barber and Topseils Case 115 Bare and Mounslowes Case 127 Braggs Case 156 Buckhursts Case 161 Burton and Edmunds Case 164 Blagrave and Woods Case 175 Burton and Harvyes Case 184 Birryes Case 190 Basset and Bassets Case 197 Barker and Finches Case 209 Bridges Case 212 Bristow and Bristows Case 227 Boswells Case 234 Berryes Case 237 Bury and Taylors Case 253 Browns Case 278 Bond and Greens Case 310 Bagnall and Plots Case 322 Bradley and Jones Case 333 Brookers Case 336 Baldwyne and Girryes Case 341 Buggs Case 342 Blithman and Martins Case 347 Bagnall and Harvies Case 366 Blanfords Case 367 Brooke and Gregories Case 368 Bisse and Tyters Case 369 Barnwell and Palsies Case 384 Bret and Cumberlands Case 391 Bishop and Turnors case 395 Blackston and Heaps case 396 Brown and Pells case 402 Bronkers case 407 Bridges and Mills case 414 Butlers case 416 Bowen and Jones case 417 Bullen and Shoters case 437 Bridges and Nichols case 441 Brown and Greens case 442 Bendloes and Hollydayes case 456 Busher and Murryes case 457 Baspool and Longs case 458 Bellamy and Balthorps case 462 Brookers case 465 Buckleys case 468 Bowden and Jones case 488 Baker and Blackmoors case 493 Bailiffs of Yarmouth and Cowper 506 Baxter and the King 510 Beles case 514 Blands case 516 Brownloes case 517 Barker and Taylors case 518 Butcher and Richmonds case 516 Barrel and VVheelers case 480 C CArter and Crofts case 41 Cropps case 43 Cotsill and Hastings case 96 Countess of Darbies case 96 Sir Jarvis Cliftons case 103 Costard and VVickfields case 110 Culpepers case 136 Conyers case 144 Crosse and Casons case 223 Candict and Plomers case 228 Chalk and Peters case 235 Cullingworthâ— case 245 Claypoole VVhestons case 253 Colgat and Blythes case ibid. Carles case 257 Coxe and Grayes case 264 Cook and Fishers case 267 Cottons case 273 Cookes case 294 Charkes case 299 Chawner and Bowes case 312 Cunden and Symmons case 325 Clay and Barnets case 328 Cowper and Andrews case 329 Colt and Gilberts case 335 Cross and Stanhops case 343 Cartwrights case 344 Crooke and Averins case 349 Claydon and Sir Jerome Horseys case 350 Cloathworkers of Ipswiches case 351 Cowley and Legats case 355 Clarkes case 364 D DIke and Dunstons case 65 Dighton and Clarkes case 74 Denny and Turnors case 98 Duke and Smiths case 189 Doylyes case 239 Dethick and Stokes case 255 Dean of VVinsors case 301 Dockwray and Beales case 353 Dudleys case 359 Davers case 413 Dean of Carliles case 463 Dayes case 470 Dcane and Steels case 498 Done and Knots case 423 E EDelses case 36 Earl of Kents case 87 Eglinton and Aunsels case 99 Sir Ralph Egertons case 172 Edwards and Dentons case 261 Evesque de York and Sedgwicks case 287 Evesque de Chichester and Strodwicks case 326 Evesque de Salisburies case 357 East and Hardings case 456 Erish and Iues case 458 Euers and Owens case 496 Earl of Pembrook and Bostocks case 505 Eveley and Estons case 508 Edwards case 510 Edwyn and Wottons case 516 F FVtter and Bosomes case 42 Fullers case 106 Fraunces and Powels case 272 Fortescue and Cookes case 276 Fleetwood and Gotts case 284 Fial and Variars case 334 Foxe and Medcalfs case 356 Froswel and Welshes case 373 Franklins case 375 Fines case 415 Favels case 416 Farthing and Duppers case 422 Fleetwoods case 435 Fish and Wisemans case 461 Fryer and Dewes case 485 Fisher and Warners case 494 Floyd and Cannons case 503 G GOmersal and Gomersals case 69 Giles case 70 Green and Harris case 147 Giles and Newmans case 159 Gage and Peacocks case 200 Grissel and Sir Christopher Hodsdayes case 210 Grivel and Stapletons case 235 Goodman and Goors case 270 Greenway and Barkers case 275 Garven and Pyms case 286 Gage and Smiths case 298 Gippes case 342 Grubs case 348 Greenway and Barkers case 359 Lâ— Gerards case 365 Godfrey and Dixons case 388 Grayes case 389 Garrawayes case 416 Gorge and Sir Robert Lanes case 433 Godbolts case 435 Glede and Wallis case 454 Gunter and Gunters case 466 Green and Moodies case 472 God and Winches case 499 Guyn and Guyns case 515 H HArwood and Highams case 46 Herolds case 59 Hobbies case 82 Hollinshead and Kings case 109 Hoody and Winscombs case 130 Hardings case 169 Haltons case 174 Harlow and Woods case 208 Heydon and Smiths case 239 Hughes and Keens case 262 Hardings case 271 Herrenden and Taylors case 277 Hutchinsons case 288 Hatch and Capels case 290 Hughes case 306 Hill and Grubhams case 320 Sir Christopher Heydons case 345 Hurlston and Woodroofs case 386 Hill and Wades case 387 Hobbies case 388 Hewet and Byes case 428 Hawksworth Davies case 431 Haddon Arrowsmiths case 456 Hardings case 456 Holmes and Wingraves case 460 Heninghams case 465 Hoskins case 4â—1 Hern and Webbs case 483 Hunts case 49 Harvy and Reignolds case 497 Hill and Farlies case 501 Hill and Wades case 502 Huet and Overies case 504 Hemsers case 512 Hye and Dr. Wells case 514 Humfries Studfields case 519 Hawkford and Russels case 67 I JOyces case 68 Johnsons case 206 James and Ratcliffs case 279 Jennour and Alexanders case 297 Ireland and Barkers case 300 Jurks and Cavendishes case 324 Jugin and Pâ—ynes case 381 Jermyn and Coopers case 382 Jones and Ballards case 512 K KItleys case 39 Kingston Hulls case 187 Kerchers case 243 Kirby and Walters case 394 Killigrew and Harpers case 432 Knollys and Dobbins case 436 Kite and Smiths case 444 Kellawayes case 446 Knights case 447 L LVddingdon Amners case 36 Lovell and Gulstons case 83 Leeds and Cromptons case 104 Knightleys case 126 Lewknor and Fords case 136 Leonard and Stephens case 170 Langley and Colsons case 196 Lee and Swons case 211 Lee and Lees case 285 Leighton and Greens case 292 Lee and Colshills case 303 Laistons case 319 Lamberts case 339 Lynsey and Ashtons case 352 Lambert
the time of King Henry the 8. said That if the King should arrest him of High-Treason that he would stab him with his dagger and it was adjudged a present Treason So was it also adjudged in the Lord Stanley's Case in the time of King Henry the 7. who seeing a Young-man said That if he knew him to be one of the Sons of E. 4. that he would aid him against the King In the like manner a woman in the time of Hen. 8. said That if Henry the 8. would not take again his wife Queen Katherine that he should not live a year but should die like a dog So if discontented persons with Inclosures say That they will petition unto the King about them and if he will not redress the same that then they will assemble together in such a place and rebell In these Cases it is a present Treason and he said That in point of Allegiance none must serve the King with Ifs and Ands. Further Cook Chief Justice said That Faux the Gunpowder Traitor being brought before King James the King said to him Wherefore would you have killed me Faux answered him viz. Because you are excommunicated by the Pope How said the King He answered Every Maunday-Thursday the Pope doth excommunicate all Herâ—tiques who are not of the Faith of the Church of Rome and you are within the same Excommunication And afterwards Owen was found guilty and Judgment of Treason was given against him Mich. 13 Jacobi in the Kings Bench. 364. SIMPSON'S Case RIchard Simpson a Copy-holder in Fee jacens in extremis made a Surrender of his Copyhold habendum to an Enfant in ventrefamier and his heirs and if such Enfant die before his full age or marriage then to John Simpson his brother and his heirs The Enfant is born and dieth within two moneths Upon which John was admitted and a Woman as Heir-general to the Devisor and to the Enfant is also admitted and entreth into the Land against whom John Simpson brought an Action of Trespasse and it was adjudged against the Plaintiffe And two points were resolved in this Case 1. That a Surrender cannot begin at a day to come no more then a Livery as it was adjudged 23 Eliz in this Court in Clarks Case 2. That the Remaindor to John Simpson cannot be good because it was to commence upon a Condition precedent which was never performed And therefore the Surrender into the hands of the Lord was void for the Lord doth not take but as an Instrument to convey the same to another And it was therefore said That if a Copy-holder in Fee doth surrender unto the use of himself and his heirs because that the Limitation of the use is void to him who had it before the Surrender to the Lord is void Trin. 13 Jacobi in the Chancery 365. The Lord GERARD'S Case IT was holden in the Chancery in the Lord Gerards Case against his Copyholds of Aâ—dley in the County of Stafford That where by antient Rolls of Court it appeareth that the Fines of the Copyholds had been uncertain from the time of King Hen. the 3 to the 19 of H. the 6. and from thence to this day had been certain Except twenty or thirty That these few antient Rolls did destroy the Custome for certainty of Fine But if from 19 H. 6. all are certain except a few and so incertain Rolls before the few shall be intended to have escaped and should not destroy the Custome for certain Fines Hill 13 Jacobi in the Common-Pleas 366. BAGNAL and HARVEY'S Case IN a Writ of Partition it was found for the Plaintiffe And a Writ was awarded to the Sheriffe that he should make the partition And the Sheriffe did thereupon allot part of the Lands in severalty and for other part of the Lands the Jurors would not assist him to make the partition All which appeared upon the Retorn of the Sheriffe And an Attachment was prayed against the Jurors who refused to make the Partition and a new Writ was prayed unto the Sheriffe And the Court doubted what to do in the Case whether to grant an Attachment or not and whether a new Writ to the Sheriffe might be awarded And took time to advise upon it and to see Presidents in the Case Hill 13 Iacobi in the Kings Bench. 367. BLANFORD'S Case A Man seised of Lands in Fee devised them unto his Wife for life and afterwards to his two Sons if they had not issue males for their lives and if they had issue males then to their issue males and if they had not issue males then if any of them had issue male to the said issue male The wife died the sons entred into the lands and then the eldest son had issue male who afterwards entred and the younger son entred upon the issue and did trespasse and the issue brought an Action of Trespasse And it was adjudged by the whole Court that the Action was maintainable because by the birth of the issue male the lands were devised out of the two sons and vested in the issue male of the eldest Crook Justice was against the three other Justices Hill 13 Iacobi in the Kings Bench. 368. BROOK and GREGORY'S Case IN a Replevin the Defendant did avow the taking of the Cattle damage feasants And upon issue joyned it was found for the Plaintiffe in the Court at Winsor being a Three-weeks Court And the Defendant brought a Writ of Error and assigned for Error That the Entry of the Plaint in the said Court was the 7. day of May and the Plaintiffe afterwards did Declare there of a taking of the Cattel the 25. day of May. And whether the same was Error being in a Three-weeks Court was the Question and 21 E. 4. 66. was alleadged by Harris that it was no Error But the Court held the same to be Error because no Plaint can be entred but at a Court and this Entry of the Plaint was mesne betwixt the Court dayes and so the Declaration is not warranted no â—ustome being alleadged to maintain such an Entry 2. It was holden by the Court in this Case That 〈…〉 est erratum is pleaded the Defendant cannot alleadge Dimâ—â—â—tion because there is a perfect issue before 3. It was holden That a 〈◊〉 cannot alleadge Diminution of any thing which appeareth in the Râ—â—â—d to be 〈◊〉 And because the Defendant â—id alleadge Diminution 〈◊〉 Case of the Record and by the Record it was certified that the 〈◊〉 was entred the 25 day of May the same was not good after issue joyned and after Judgment is given upon the â—â—â— Record upon the first Dâ—â—â—aration and Pleading in the said Court of Winsor And therefore the Judgment was reversed by the opinion of all the Justices Hill 13 Iacobi in the Kings Bench. 369. BISSE and TYLER'S Case IN an Action of Trover and Conversion of goods the Defendant said That J. S. was possessed of the said goods and sold them unto him in open market
â—uaere whether it be a good Plea because it doth amount to the general issue of Not guilty Curia avisare vult And v. Tompsons Case 4 Jac. in the Kings Bench It was adjudged that it was no good Plea Hill 6 Jacobi in the Common Pleas. 370. PAGINTON and HUET'S Case IN an Ejectione Firme the Case was this That the Custome of a Manor in Worcestershire was That if any Copyholder do commit Felony and the same be presented by twelve Homagers That the Tenant should forfeit his â—opyhold And it was presented in the Court of the Mannor by the Homage That Hâ—â—t the Defendant had committed Felony But afterwards at the Asâ—ises he was acquitted And afterwards the Lord seised the Copyhold And it was adjudged by the Court that it was no good Custom because in Judgment of Law before Attaindor it is not Felony The second point was Whether the special Verdict agreeing with the Presentment of the Homage That the party had committed Felony did entitle the Lord to the Copyhold notwithstanding his Acquital Quaere For it was not resolved Mich. 7 Iacobi in the Common Pleas. 371. THe Custom of a Mannor was That the Heirs which claimed Copy-hold by Discent ought to come at the first second or third Court upon Proclamations made and take up their Estates or else that they should forfeit them And a Tenant of the Mannor having Issue inheritable beyond the Seas dyed The Proclamations passed and the Issue did not return in twenty years But at his coming over he required the Lord to admit him to the Copyhold and proffered to pay the Lord his Fine And the Lord who had seised the Copyhold for a Forfeiture refused to admit him And it was adjudged by the whole Court That it was no Forfeiture because that the Heir was beyond the Seas at the time of the Proclamations and also because the Lord was at no prejudice because he received the profits of the Lands in the mean time Mich. 14 Iacobi in the Kings Bench. 372. A Copyholder in Fee did surrender his Copyhold unto the use of another and his heirs which surrender was into the hands of two Tenants according to the custome of the Mannor to be presented at the next Court. And no Court was holden for the Mannor by the space of thirty years within which time the Surrenderor Surrenderee and the two Tenants all dyed The heir of the Surrenderor entred and made a Lease for years of the Copyhold according to the Custome of the Mannor And it was adjudged per Curiaâ—â— That the Lease was good Mich. 14 Iacobi in the Common-Pleas 373. FROSWEL and WEICHES Case IT was adjudged That where a Copyholder doth surrender into the hands of Copy-Tenants That before Presentment the Heir of the Surrenderor may take the profits of the Lands against the Surrenderee For no person can have a Copyhold but by admittance of the Lord. As if a man maketh Livery within the view although it cannot be countermanded yet the Feoffee takes nothing before his entry But it was agreed That if the Lord doth take knowledge of the Surrender and doth accept of the customary Rent as Rent due from the Tenant being admitted that the same shall amount unto an Admittance but otherwise if he accept of it as a duty generally Mich. 5 Iacobi in the Exchequer 374. IT was adjudged in the Exchequer That where the King was Lord of a Mannor and a Copyholder within the said Mannor made a Lease for three lives and made Livery and afterwards the Survivor of the three continued in possession forty years And in that case because that no Livery did appear to be made upon the Endorsment of the Deed although in truth there was Livery made that the same was no forfeiture of which the King should take any advantage And in that case it was cited to be adjudged in Londons case That if a Copy-Tenant doth bargain and sell his Copy-Tenement by Deed indented and enrolled that the same is no forfeiture of the Copyhold of which the Lord can take any advantage And so was it holden in this Case Pasch 14 Iacobi in the Kings Bench 375. FRANKLIN'S Case LAnds were given unto one and to the heirs of his body Habendum unto the Donee unto the use of him his heirs and assignes for ever In this â—ase two points were resolved 1. That the Limitation in the Habendum did not increase or alter the Estate contained in the premisses of the Deed. 2. That Tenant in Tail might stand seised to an use expressed but such use cannot be averred Hill 13 Iacobi in the Chancery 376 WINSCOMB and DUNCHES Case VVInscomb having issue two sons conveyed a Mannor unto his eldest son and to the daughter of Dunch for life for the joynture of the wife the Remainder to the 〈…〉 The son having no issue his Father-in-law Dunch procured him by Deed indented to bargain and sell to him the Manner The Bargâ—ynor being sick who died before enrolment of the Deed within the 〈…〉 Deed â—ot being acknowledged And 〈◊〉 the 〈◊〉 coming to be enrolled the Clark who enrolled the same did proâ—â—â—e Waâ—â—â—nt from the Master of the Rolls who under-â—â—â— upon the Deâ—◠〈◊〉 the Deed be enrolled upon Affidavit made of the delivery of the Deed by one of the Witnesses to the same And afterwards the Deed was eâ—â—â—â—d within the six moneths And the opinion of the Court wasâ— That 〈◊〉 Conveyance was a good Conveyance in Law And therefore the younger brother exhibited his Bill in Chanchery pretending the Conveyance to be made by practice without any Consideration Mich. 15 Iacobi in the Kings Bench. 377 LUDLOW and STACIâ—S Case A Man bargained and sold Land by Deed indented bearing date 11 Junii 1 Jacobi Afterwards 12 Junii The same year Common was granted â—nto the Bargainee for all manner of Cattell commonable upon the Land 15 Junii theâ— Deed of Bargain and Sale was enrolled And it was adjudged a good grant of the Common And the Enrolment shall have Relation as to that although for collaterall things it shall not have relation Hill 15 Iacobi in the Kings Bench. 378. NOte that it was held by Dodderidge Justice and Mountagu Chief Justice against the opinion of Haughton Justice That if Lessee for years covenanteth to repair and sustein the houses in as good plight as they were at the time of the Lease made and afterwards the Lessee assigneth over his Term and the Lessor his Reversion That the Assignee of the Reversion shall maintain an Action of Covenant for the breach of the Covenants against the first Lessee Hill 15 Jacobi in the Common-Pleas 379. SMITH and STAFFORD'S Case A Man promised a Woman That if she would marry with him that if he dyed and she did survive him that he would leave unto her 100â— They entermarried and then the husband dyed not performing his promise The wife sued the Executor of her husband upon the said promise And whether the
And if Rent be due and payable unto me by my Lessee for years the same may be taken for the Kings Debt and the special matter shall be a good barr in an Avowry for the Rent 38. E. 3. 28. A Prior Alien was indebted to the King for his Farm Rent And being sued for the same he shewed That there was a Parson who held a certain portion of Tythes from him which were part of the Possessions of the same Priory which he kept in his hands so as he could not pay the King his Farm-Rent unlesse he might have those Tythes which were in the Parsons hands Wherefore a Writ was awarded against the Parson to appear in the Exchequer and to shew cause why he should not pay the same to the King for the satisfying of the Kings Rent And there Skipwith Justice said That for any thing which toucheth the King and may turn to his advantage to hasten the Kings business that the Exchequer had jurisdiction of it were it a thing Spiritual or Temporal V. 44 E. 3. 43 44. the like Case but there it is of a Pension And the Case of 38 Ass 20. was the Case for Tythes See also 12 E. 3. Swalds Case to the same purpose If two Coparceners be in ward to the King upon a suggestion that one of them is indebted to the King the staying of his Livery shall be for his moytie untill the King be satisfied his debt but the other sister shall have Livery of the other moytie which belongs unto her Fitz. N. 5. 263. a. Mich 19 E. 3. and Hill 20. E. 3. which was one and the same Case The Kings Debtor brought a Quo minus in the Exchequer against his Debtor the Defendant appeared And the Plaintiffe afterwards would have been Nonsuit but the Court would not suffer him so to be And it was there said That a Release by the Kings Debtor unto his Debtor would not discharge the Kings Debtor as to that Debt In a Quo minus in the Exchequer upon a Debt upon a simple Contract the Defendant cannot wage his Law because the King is to have a benefit by the suit although the King be no party to the suit C. 4. par 95. The fourth Prerogative which the King hath is That the King shall have an Accompt against Executors because the Law there maketh a privity it being found by matter of Record that the Testator was indebted to the King which Record cannot be denied But in the Case of a common person an Accompt will not lie against Executors for want of privity The Accompt which the King brings is ad computandum ad Dominum Regem c. without setting forth how the party came liable to accompt But a common person in his accompt brought ought to shew how that the party was Receiver Bailiff c. If a man doth entermeddle with the Kings Treasure the King pretending a title to it he shall be chargeable for the same to the King C. 11. part 89. the Earl of Devonshire's case The Master of the Ordnance pretending that the old broken and unserviceable Ordnance belonged unto him by reason of his Office procured a Privy-seal c. and afterwards disposed of them to his own use and dyed And his Executor was forced to accompt for them Sir Walter Mildmay's Case Mich. 37. 38 Eliz. Rot. 312. in the Exchequer Sir Walter Mildmay was Chancellor of the Exchequer and suggested unto the Lord Treasurer of England That his Office was of great attendance and desired the Lord Treasurer that he would be pleased to allow unto him 100l. for his dyet and 40l. per annum for his attendance which the Lord Treasurer did grant unto him and he enjoyed it accordingly and afterwards dyed and his Executors were forced to accompt for it and to pay back the mony for all the time that their Testator received it C. 11. part 90 91. there is cited That Sir William Cavendish was Treasurer of the Chamber of King H. 8. E. 6. and Queen Mary and that he was indebted to K. E. 6. and to Q. Mary and that being so indebted he purchased divers lands and afterwards aliened them and took back an estate therein to himself and his wife and afterwards dyed without rendring any Accompt the Terre-Tenants of the land were charged to answer to Q. Elizabeth for the monies to which they pleaded the Queens special Pardon and it was in conclusion said That the Pardon was a matter of grace ex gratia but in Law the Terre-Tenants were chargeable to the said Queen for the monies v. Com. 321. 5 Eliz. Dyer 244 245. in the Exchequer Mich. 24. E. 3. Rot. 11. ex parte Rememb Regis Thomas Farel Collector of the Fifteenths and Tenths being seised of lands in Fee and being possessed of divers goods and chattels at the time when he entred into the said Office being then indebted to the King did alien them all and afterwards dyed without heir or Executor And a Writ went out unto the Sheriffe to enquire what lands and tenements goods and chattels he had at the time he entred into the said Office and Processe issued forth against the Terre-Tenants and the Possessors of his goods and chattels ad computand pro collectione predict ad respondendum satisfaciendum inde Domino Regi V. Dyer 160 50 Ass 5. A notable Case to this purpose Mich. 30. E. 3. rot 6. William Porter Mint-Master did covenant with the King by Indenture enrolled That for all the Bullion which should be delivered ad Cambium Regis pro Moneta faciend that mony should be delivered for it within eight dayes which Covenant he had broken and therefore the King paid the Subject for the Bullion And afterwards because John Walweyen and Richard Piccard duxerunt praesentaverant dict William Porter in officium illud tanquam sufficientem and that they offered to be Sureties for him but were not accepted of which they did confesse Ideo consideratum est quod predict Walweyen Piccard onerentur erga Dominum Regem And they afterwards were charged to satisfie the King for all the monies which the King had paid for the said Porter And although that none of the Kings treasure came to their hands nor they had not any benefit as appeared by any matter in the Case yet because they were the means and causers that the King sustained damage and losse they were adjudged to be chargeable to the King C. 11. par 93. this Case is there cited Upon these Cases vouched by me I make divers Observations 1. I observe That from Age to Age what care the Judges had for the Advancing and the recovering of the Kings Debts because Thesaurus Regis est vinculum Pacis Bellorum nervus And it is the slowing fountain of all bounty unto the Subject 2. I observe That the King hath a Prerogative for the Recovery of Debts due unto him 3. I observe That although the Debt due to the King be
puisne or the lesser Debt and although the Debtor be able and sufficient to pay both Debts viz. the Kings Debt and the Debt owing to the Subject yet the Kings Debt is to be first paid Now to apply these cases to the Case in question Here is a Subject who is indebted to the King And I say That the Lands which such a Debtor hath in his power and dispose although he hath not any Estate in the Lands shall be liable to pay the Debt to the King And I say That Sir Christopher Hatton had a Fee in the Mannors and Lands in this case And although he did convey them bona fide yet untill his death by reason of the Proviso of Revocation they were extendable Trin. 24. E. 3. Rot. 4. Walter de Chirton Customer who was indebted to the King for the Customs purchased Lands with the Kings monies and caused the Feoffor of the Lands to enfeoffe certain of his friends with an intent to defraud and deceive the King and notwithstanding he himself took the profits of the Lands to his own use And those Lands upon an Inquisition were found and the values of them and retorned into the Exchequer and there by Judgment given by the Court the Lands were seized into the Kings hands to remain there untill he was satisfied the Debt due unto him And yet the Estate of the Lands was never in him But because he had a power viz. by Subpena in Chancery to compell his Friends to settle the Estate of the Lands upon him therefore they were chargeable to the Debt You will say perhaps there was Covin in that Case But I say that neither Fraud Covin nor Collusion is mentioned in the Report in Dyer 160. C. 11. par 92. And that Case was a harder Case then our Case is For Walter de Chirton in that Case was never seised of the said lands But in our Case Sir Christopher Hatton himself had the lands And when he had the lands he was assured of the Office although he had not the possession of it For he was sure that no other could have it from him and no other could have it but himself And for another cause our Case is a stronger Case then the Case of Walter de Chirton For Chirton had no remedy in Law to have the lands but his remedy was only in a Court of Equity and a remedy in Consc ' onely But in our Case Sir Christopher Hatton had a time in which he might let the land to passe and yet he had a power to pull it back again at his pleasure So as he had the disposition of it but before the alteration of the uses he dyed And if he had been living being indebted to the King the King might have extended the lands because that then he had the possession of them There were two Considerations which moved Sir Christopher Hatton to Convey the Lands the first was honorable viz. For the payment of his Debts the second was natural viz. For the preferment of his Children Although the Conveyance of the Lands for payment of his Debts was but for years yet the same was too short like unto a Plaister which is too short for the sore For the Covenanters were not his Executors and so they were not liable to Debts And although he be now dead and cannot revoke the former uses yet he had the power to revoke the uses during his life And so he was chargeable for the Debt due to the King Tanfield Chief Baron agreed with Justice Dodderidge in all as before And he said That all powerful and speedy courses are given unto the King for the getting in of his Revenues and therefore he said he had the said Prerogatives as have been recited And in 25 E. 3. in libro rubro in the Exchequer there the Foundations of the said Prerogatives do appear If a common person arrest the body in Execution he shall not resort to the lands contr to Blumfields Case C. 5. par The course of the Exchequer makes a Law every where for the King If any Officer be indebted unto the King and dyeth the course of the Exchequer is For to call in his Executors or the Heir or the Terre-Tenants to answer the Debt and if he hath no lands then a Writ issueth out of the Exchequer to know what goods he had and to whose hands they be come All Inquisitions concerning Lands in the like Cases are Habuit vel seisitus and not that he was seised onely The word Habuit is a large word and in it is contained a disposing power But in this Case Sir Christopher Hatton had a power every day to revoke the uses And when he had once revoked them then was he again as before seisitus 7 H. 6. in the Exchequer the Kings Farmor had Feoffees to his use and dyed indebted to the King And upon an Inquisition it was found that Habuit for he had them in his power by compelling his Feoffees by Equity in Chancery and therefore it was adjudged that the King should have the Lands in the Feoffees hands in extent But in this case Sir Christopher Hatton might have had the Lands in him again without compulsion by a Court of Equity for that he had power to revoke the uses in the Conveyance at his pleasure Mich. 30. H. 6. rot in the Exchequer A Clark of the Court was assigned to receive monies for the King who had Feoffees of lands to his use And the lands were found and seised for the Kings monies by force of the word Habuit 32 H. 6. Philip Butler's Case who was Sheriffe of a County being indebted to the King his Feoffees were chargeable to the Kings debt by force of the word Habuit For habuit the lands in his power 6 E. 4. Bowes Case acc ' 34 H. 6. A widow being indebted to the King her Feoffees were chargeable to pay the Kings debt because she had power of the lands It being found by Inquisition that habuit 1 R. 3. the like Case And 24 Eliz. in Morgan's Case it was adjudged That lands purchased in the names of his Friends for his use were extended for a debt due by him to the King Hobart Lord Chief Justice of the Common Pleas argued to the same purpose and agreed with the other Justices and he said in this case it was not material whether the Inquisition find the Deed to be with power of Revocation For he said that the Land is extended and that the extent remains good untill it be avoided And he said that a revocable Conveyance is sufficient to bind the Parties themselves but not to bind the King but the Lands are lyable into whose hands soever they come When a man is said to forfeit his body it is not to be intended his life but the freedom of his body Imprisonment At the Common Law a Common person could neither take the bodie nor the Lands in Execution But yet at the Common Law
duty did survive with the wife or were extinguished by the entermarriage was the Question And Hâ—bart Chief Justice and Warburton were against Winch and Hutton Justices That the marriage was a Release or discharge of the 100â— Quaere Hill 15 Jacobi in the Kings Bench 380. PLOT' 's Case AN Enâ—ant brought an Assise in the Kings Bench for Lands in Mich depending which The Tenant in the same Assise brought an Assise for the same Lands in the Common-Pleas which last Writ bore date and was recornable after the first Writ And the Demandant in the second Writ did recover against the Enfant by default by the Aâ—â—â—se who found the Seisin and Disseisin And upon a Plea in 〈◊〉 of the first Assise of that Recovery the Enfant by way of Replication set forth all the special matter And that the Deâ—andant at the time of the second Writ brought was Tenant of the Land And prayed that he might 〈◊〉 the Recovery And it was adjudged That he might falsifie the Recovery For in all Cases where a man shall not have Error noâ—â—â—taint he may Falsifie But in this case he could not have Error nor Attaint because the Judgment in the Common-Pleas was not given only upon the Default but also upon the Verdict And it should be in vain for him to bring an Attaint because he shall not be 〈◊〉 to give other Evidence then what was given at the first Trial. Also he shall falsifie the Recovery because it was a practise to defeat and take away the Right of the Enfant and to leave him without any remedy whatsoever Pasch 16 Iacobi in the Kings Bench. 381 INGIN and PAYN'S Case LEssee for years was bounden in a Bond to deliver the possession of a house unto the Lessor his heirs and assignes upon demand at the end of the term The Lessor did bargain and sell the Rendition by Deed enrolled to two One of the Bargainees at the end of the term demanded the Delivery of the Possession The Lessee refused pretending that he had no notice of the bargain and sale It was adjudged that the Bond was forfeited Pasch 16 Iacobi in the Common-Pleas 382. JERMYN and COOPER'S Case A Man by Deed gave Lands to A. and to a Feme sole and to their heirs and assigns for ever Habendum to them and to the heirs of their bodies the Remainder to them and the survivor of them for ever And it was adjudged by the Court That they had an Estate in tail with the Fee-simple Expectant Pasch 16 Jacobi in the Kings Bench. 383. A Man was Indicted De verberationem vulnerationem of J. S. and the words vi armis were left out of the Indictment And the same was adjudged to be helped by the Statute and that the Indictment was good Mich. 16 Jacobi in the Kings Bench. 384. BARNWEL and PELSIE'S Case A Parson did Covenant and grant by Deed with one of his Parishioners That in consideration of Six pounds thirteen shillings and four pence per annum be paid unto him that the said Parishioner should be discharged of all Tythes upon condition to be voyd upon default of payment Afterwards the Parson against his grant did sue the Parishioner in the Spirituall Court for Tythes in kind and it was moved for a Prohibition But the Court would not grant it because that the Originall viz. the Tythes do belong to spirituall jurisdiction But it was said that the Parishioner might have an Action of Covenant against the Parson upon the Deed in the Temporall Court 385. Posch 16 Jacobi in the Kings Bench. AN Action upon the Case was brought for speaking of these words viz. J. S. 34 years since had two Bastards and hath paid for the nursing of them And the Plaintiff shewed that by reason of these words contention grew betwixt him and his wife almost to a Divorce And it was adjudged That an Action would not lye for the words And the Chief Justice said That an Action upon the Case doth not lye for every ill word but for words by speaking of which the Plaintiff is damnified and that cannot be in this Case the time being so long past And the causes wherefore a man shall be punished for saying that a man hath a Bastard are twoâ— the one because by the Statute of 14 Eliz. the offender is to be punished for the same And secondly because the party by such means is discredited or hindered in his preferment Hill 16 Iacobi in the Kings Bench. 386 HURLSTON and WODROFS Case HEnry Hurlston was Plaintiff against Robert Wodroffe in an Action of Debt upon a Demise of a Messuage with a Sheep-walk the Latin word being Ovile And it was moved in arrest of Judgement after a verdict found for the Plaintiff That the sheepwalk was not alledged to be appurtenant nor pleaded to be by Grant by Deed. But notwithstanding that it vvas ruled by the vvhole Court because it rested indifferent whether there was a grant by Deed or not That when the Jury find that the Sheep-walk did passe it shall be intended that there was a Deed. Dodderidge Justice in the Argument of this Case did hold That by the word Ovile although it be translated in English a Sheep-walk yet a Sheep-walk did not passe by it but a Sheep-Cote and by that the Land it self did passe Hill 16 Iacobi in the Kings Bench. 387. HILL and WADE'S Case HIll brought an Action upon the Case against Wade and declared upon an Assumpsit to pay mony upon request and did not alleadge the Request certain but issue was joyned upon another point and found for the Plaintiffe That the failing of certain alleadging of the Request in the Declaration made the same insufficient And so it was adjudged by the Court with this difference where it was a duty in the Plaintiffe before and where the Request makes it a duty For in the first case the Plaintiffe need not alleadge the Request precisely but otherwise in the later Dodderidge Justice put this Case If I promise J. S. in consideration that he will marry my daughter to give him 20â— upon request there the day and place of the request ought to be alleadged in the Declaration Montagu Chief Justice cited 18 E. 4. and 5 H. 7. to be contrary viz. That the finding of the Jury made the Declaration which was vitious to be good As if Executors plead That they have nothing in their hands the day of the Action brought it is insufficient But if the Jury find Assets it is good and so by consequence the Verdict shall supply the defect of Pleading But the Court held these books to be good Law and not to be contrary and well reconciled with this difference For there the Plea was naught only in matter of circumstance but otherwise it is where it is vitious in substance as in this case it is And a difference also was taken where the Verdict doth perfect all which is material and ought to be expressed
thing and shall he be bound by a Conveyance Anno. 16. H. 6. then in the time of Civil War Uses began and of Lands in use the Lord Chief Baron Tanfield in his Argument hath cited diverse cases where the lands in use were subject and lyable to the debt of Cestuy que use in the Kings Case and so was it untill the Statute of 27. H. 8. of Uses was made Babbington an Officer in the Exchequer had lands in the hands of Feoffees upon Trust and a Writ issued out and the lands were extended for the Debt of Babbington in the hands of his Feoffees Sir Robert Dudley having lands in other mens hands upon Trusts the lands were seized into the Kings hands for a contempt and not for debt or damages to the King And in this Case although that the â—nquisition do find the Conveyance but have not found it to be with power of Revocation yet the Land being extended it is well extended untill the contrary doth appear and untill the extent be avoided by matter of Record viz. by Plea as the Lord Chief Baron hath said before Ley Chief Justice of the Kings Bench argued the same day and his Argument in effect did agree with the other Justices in all things and therefore I have forborne to report the same at length And it was adjudged That the Extent was good and the Land well decreed accordingly Pasch 21 Jacobi in the Exchequer Chamber 417. The Lord SHEFFIELD and RATCLIFF'S Case IN a Writ of Error brought to reverse a Judgment given in a Monstrans de Droit in the Court of Pleas The Case was put by Glanvile who argued for Ratcliffe the Defendant to be this 2 E. 2. Malew being seised of the Mannor of Mulgrave in Fee gave the same to A. Bigot in tail which by divers discents came to Sir Ralph Bigot in tail Who 10 Jannarii 6 H. 8. made a Feoffment unto the use of â—is last Will and thereby after his Debts paid declared the use unto his right heirs in Fee and 9. H. 8. dyed The Will was performed Francis Bigot entred being Tenant in tail and 21 H. 8. made a Feoffment unto the use of himself and Katherine his wife and to the use of the heirs of their two bodies Then came the Statute of 26 H. 8. cap. 13. by which Tenant in tail for Treason is to forfeit the Land which he hath in tail Then the Statute of 27 H. 8. of Uses is made Then 28 H. 8. Francis Bigot did commit Treason And 29 H. 8. he was attainted and executed for the same Anno 31 H. 8. a private Act of Parliament was made which did confirm the Attaindor of Francis Bigot and that he should forfeit unto the King word for word as the Statute of 26 H. 8. is saving to all strangers except the Offendor and his heirs c. 3 E. 6. The heir of Francis Bigot is restored in blood Katherine entred into the Mannor and dyed seised 8 Eliz. their Issue entred and married with Francis Ratcliffe and had Issue Roger Ratcliffe who is heri in tail unto Ralph Bigot And they continue possession untill 33. Eliz. And then all is found by Office and the Land seised upon for the Queen who granted the same unto the Lord Sheffield Francis Bigot and Dorothy die And Roger Ratcliffe sued a Monstrans de Droit to remove the Kings hands from off the lands and a Scire facias issued forth against the Lord Sheffield as one of the Terre-Tenants who pleaded all this special matter and Judgment was thereupon given in the Court of Pleas for Roger Ratcliffe And then the Lord Sheffield brought a Writ of Error in the Exchequer-Chamber to reverse the said Judgment And Finch Serjeant argued for the Lord Sheffield that the Judgment ought to be reversed And now this Term Glanvile argued for Roger Ratcliffe that the Judgment given in the Court of Pleas ought to be affirmed There are two points The first If there were a Right remaining in Francis Bigot and if the same were given unto the King by the Attaindor and the Statute of 31 H. 8. Second If a Monstrans de Droit be a proper Action upon this matter which depends upon a Remitter for if it be a Remitter then is the Action a proper Action The Feoffment by Ralph Bigot 6 H. 8. was a Discontinuance and he had a new use in himself to the use of his Will and then to the use of his Heirs Then 9 H. 8. Ralph Bigot dyed And then Francis Bigot had a right to bring a Formedon in the Discendor to recover his estate tail 21 H 8. then the point ariseth Francis Bigot having a right of Formedon and an use by force of the Statute of 1 R. 3. cap. 1. before the Statute of 27 H. 8. by the Feoffment he had so setled it that he could not commit a forfeiture of the estate tail When a man maketh a Feoffment every Right Action c. is given away in the Livery and Seisin because every one who giveth Livery giveth all Circumstances which belongs to it For a Livery is of that force that it excludes the Feoffor not only of all present Rights but of all future Rights and Tytles v. C. 1. par 111. and there good Cases put to this purpose 9 H. 7. 1. By Livery the Husband who was in hope to be Tenant by Courtesie is as if he were never sised 39 H. 6. 43. The Son disseiseth his Father and makes a Feoffment of the lands the Father dyeth the hope of the heir is given away by the Livery It was objected by Serjeant Finch 1. Where a man hath a right of action to recover land in Fee or an estate for life which may be conveyed to another there a Livery doth give away such a Right and shall there bind him But an estate in tail cannot be transferred to another by any manner of Conveyance and therefore cannot be bound by such a Livery given I answer It is no good Rule That that which doth not passe by Livery doth remain in the person which giveth the Livery 19 H. 6. Tenant in tail is attainted Office is found The estate tail is not in the King is not in the person attainted but is in abeyance So it is no good Rule which hath been put When Tenant in tail maketh a Feoffment Non habet jus in re neque ad rem If he have a Right then it is a Right of Entre or Action but he cannot enter nor have any action against his own Feoffment 19 H. 8. 7. Dyer If Discontinuee of Tenant in tail levieth a Fine with proclamations and the five years passe and afterward Tenant in tail dyeth his issue shall have other five years and shall be helped by the Statute for he is the first to whom the right doth accrue after the Fine levied for Tenant in tail himself after his Fine with Proclamations hath not any right But if Tenant in tail be
in tail may have a Formedon against the Bishop But in our Case it is otherwise Tenant in tail maketh a Feoffment and takes back an estate unto himself in tail the remainder in Fee to his right heirs The Bishop in such case shall not have the land forfeited for Treason because that the Bishop cannot have the estate tail but in such case the King shall have the Land by the Statute of 26 H. 8. cap. 13. And the Bishop in such case shall not have the Fee because it is one estate and the King shall not wait upon the Subject viz the Bishop The Right waits upon the possession For 11 H. 7. 12. If the son and a stranger disseiseth the father and the father dyeth this right infuseth it self into the possession and changeth the possession And it is a Release in fact by the father to the son 9 H. 7. 25. Br ' Droit 57. A Disseisor dyeth seised and his heir enters and is disseised by A. The first Disseisee doth release unto A. all his right All the right is now in the second Disseisor viz. A. because the right and the possession meet together in A. 40 E. 3. 18. b. Tenant in tail makes a Lease for life with warranty If Tenant for life be impleaded by the heir to whom the warranty doth discend he shall rebut the right in tail being annexed with the possession for that is in case of a saving of the land by that right But where one demands land there all the Right ought to be shewed 11 H. 4 37. If a man be to bring an Action to recover then he ought to make a good title by his best right if he hath many rights But if a man be in possession and an Action be brought against him then he may defend himself by any of his rights or by all his rights 11 H. 7. 21. Tenant in tail maketh a Feoffment to his use upon Condition and afterwards upon his Recognisance the land is extended and afterwards the Condition is performed yet the interest of the Conusee shall not be avoided For although the Extent come upon the Fee and not upon the Tail yet when the Extent was it was extracted out of all the rights C. 7. part 41. A Tenant in tail makes a Lease for life now he hath gained a new Fee by wrong and afterwards he makes a Lease for years and Tenant for life dyeth He shall not avoid his Lease for years although he be in of another estate because he had a defeicible title and an ancient right the which if they were in several hands shall be good as the Lease of the one and the Confirmation of the other And being in one hand it shall be as much in Law as a saving of the Right In our Case the Right and Possession both were in Francis Bigot And Ratcliffe is entitled to the old estate tail and to the new also There is a difference betwixt him who claims the land so forfeited to the King and the heir of the body of the person attainted Littâ—719 Land is given to A and the issue males of his body the remainder to the heirs females of his body If the Father commit Treason both heir male and female are barred for they both claim by the Father but if the heir male after the death of his Father be attainted of Treason the King shall have the lands as long as he hath issue male of his body and then the heir female shall have the lands for she shall not forfeit them because she claimeth not by the brother but by the father Com. in Manxels case A man hath three several rights of estate tails and comes in as Vouchee If the Recovery pass it shall bar all his Rights for one Recompence and they shall be all bound by one possession There is a difference where the Kings title is by Conveyance of the party and where for forfeiture for Treason by this Statute of 26 H. 8. cap. 13. v. the Abbot of Colchesters Case The Abbot seised in the right of his house did commit Treason and made a Lease for years and then surrendred his house to the King after the Statute of 26 H. 8. The question was whether the King should avoid the Lease It was adjudged That the King was in by the surrender and should not avoid the Lease and not by the Statute of 26 H. 8. But if the King had had it by force of the Statute then the King should have avoided the Lease Com. 560. Tenant in tail the reversion to the King Tenant in tail maketh a Lease for years and is attainted of Treason The King shall avoid the Lease upon the construction of the Statute of 26 H. 8. which gives the lands unto the King for ever The third point is upon the Remitter This point had been argued by way of Admittance For as I have argued The ancient right is given away unto the King and then there is no ancient right and so no Remitter There is a difference where the issue in tail is forced to make a Title and where not In point of defence he is not so precisely forced to make his Title as he is in case of demand Whereas the Defendant demands the lands from the King the Discent will not help him because the Attaindor of the Ancestor of Ratcliffe hinders him in point of title to make a demand Dyer 332 b. In this case he ought to make himself heir of the body of Francis Bigot and Katharine C. 8. part 72. C. 9. part 139 140. There Cook couples the Case of Fine levied and the Case of Attaindor together C. 8. part 72. Land is given to husband and wife and to the heirs of their two bodies The husband alone levies a Fine with proclamations Or is attainted of Treason and dyeth The wife before Entry dyeth The issue is barred and the Conusee or King hath right unto the land because the issue cannot claim as heir to them both viz. father and mother for by the father he is barred 5 H. 7. 32 33. C. 9. part 140. Husband and wife Tenants in tail If one of them be attainted of Treason as it was in our Case the lands shall not discend to the issue because he cannot make title And there Cook puts the Case That if lands be given to an Alien and his wife they have a good estate tail and yet it is not discendable to the issue The Consequence then of all this is That if Ratcliffe cannot take advantage of the discent by reason of the disability by Attaindor à fortiori he shall not be remitted And yet I confess that in some Cases one may be remitted against the King Com. 488 489 553. But that is where the King is in by matter of Law by Conveyance but in this Case the King is in by an Act of Parliament and there shall be no Remitter against a matter of Record Another reason is because that
also mended the high-way And for these Incertainties the Indictment was quashed Pasch 3 Caroli in the Kings Bench. 482. SAMSON and GATEFIELD's Case ERror was brought to reverse a Judgment given in the Court of Virge in an Action upon the Case where the original Process fuit a Sommons whereas it ought to have been an Attachment Pasch 3 Caroli in the Kings Bench. 483. HERN and STUB's Case IN an Action of Detinue the Plaintiff did declare upon the Bailment of a Cloak of the value of 10l. to the Defendant to be safely kept and to be redelivered unto him upon request And shewed That he did request the Defendant to redeliver it and that yet he doth detain it to his damage c. The Defendant justified the Detainer by reason of a Forain Attachment in London And said That London is an ancient City and that there is a Custom in London c. That if any one be indebted unto another that if he will enter his suit or plaint into the Counter of the Sheriff of London that a Precept shall be awarded unto a Sergeant at Mace to summon the Defendant and if he retorn Nihilâ— viz. that he hath nothing within the City by which he may be summoned and Non est inventus And if he be solemnly called at the next Court and makes default that then if he can shew that the Defendant hath goods in the hands of one within the Liberty of the City that the said goods shall be attached And if the Defendant make default at four Court-dayes being solemnly called that then if the Plaintiff will swear his Debt and put in Bail for the goods viz. That if the Debt be disproved within one year and a day or the Judgment be reversed That he he shall have Judgment for the said goods And he shewed That he entred his plaint against the now Plaintiff in the Counter of Woodstreet for the Debt of 20l. and that a Precept was awarded to a Sergeant at Mace to summon him And because he had not any thing by which he could be summoned he shewed that the now Plaintiff had goods in his the Defendants hands which were attached in his hands And that he sware his Debt and put in bail for the goods and had Judgment thereupon Upon which Plea the Plaintiff did demur in Law Ward argued for the Plaintiff There are four Reasons of the Demurrer 1. He sets forth That J. S. did levy a plaint against the now Plaintiff for the Debt of 20l. but doth not set forth expresly that he did owe him 20l. And he ought to have set down how the Debt grew due for that is traversable by the Plaintiff and now hee cannot traverse it C. 10. part 77. The generall Count in an Action upon the Case Quod cum indebitatus fuit in such a summe Super se Assumpsit without shewing the Cause of the Debt is insufficient 5 H. 7. 1. Trespass was brought for taking of a Chain of Gold The Defendant said That the Plaintiff before the trespass supposed did License him to take the same Chain and to retain it untill he paid him 200 Marks which he ought to pay him Keble took Exception because the Defendant did not alledge for what cause the 200 Marks was due which Cause the Plaintiff might traverse to which Brian acc ' 9 E. 4. 41. Trespass for taking a Bagg with Money the Defendant said That the Plaintiff was indebted unto him in a certain Summ and delivered unto him the Bagg of Money in satisfaction Littleton The plea is not good for he ought to shew how he was indebted unto him Old Entries 155 156. there in a Forraign Attachment the certainty of the Debt was expressed and averred 2. He pleads a Custom and doth not prosecute his Case according to Custom The Custom is That if the Sergeant retorn that he hath nothing within the City whereby he may be summoned And Non est inventus And at the next Court day he be solemnly demanded and make default c. And he saith That because he had nothing by which he could bee summoned but doth not say That the Officer did return that he had not any thing whereby to be summoned nor that he was not to be found nor doth he plead or say That at the next Court day he was solemnly demanded Dyer 196. b. where this Case of Forraign Attachment was there the Custom is set forth viz. That the Debt ought to be affirmed by the Oath of the party in Curia Guildhall and this was pleaded to be in Curia Vicecomit in Computatorio Also he doth not averr That he had found pledges according to the Custom and therefore the plea is insufficient because he hath not purchased the Custom 3. He sheweth that the goods were attached in the Defendants hands but he doth not shew that it was within the Liberty of the City and it might be out of the liberty of the City and all the Presidents are infra Jurisdictionem c. And the Plea of every person shall be taken strongest against the Pleader And he ought to have shewed that it was within the Liberty of the City because it is a peculiar Jurisdiction 34 E. 3. breve 789. Debt was brought in the Common Pleas the Defendant said That the Plaintiff had a Bill for the same Debt depending in the Exchequer and demanded Judgment of the Writ non allocatur for it doth not appear by the Plea that the Plaintiff or Defendant were priviledged in the Exchequer and then by the Statute of Articuli super Chart as cap. 4. it is provided That no Common plea shall be holden in the Exchequer 4 E. 4 36. a In trespass for Imprisonment the Defendant doth justifie c. there he ought to shew that the Tower of London hath priviledges c. For where a man will take advantage of a particular Priviledge and Liberty he ought to shew that he was within the Priviledge of Liberty Miâ— 2. Car-Willis was Indicted before the Justices of Northampton for frequenting of a Bawdy-house in Northampton and the Indictment was quashed for it might be within Northampton and yet out of the Liberties and Jurisdiction of Northampton 4. He doth not shew in his Plea that his Debt was a due Debt and it was pleaded Dyer 196. that it was a due Debt vi Entries 155 156. It is not enough to swear his Debt but he must sweat his Debt to be a due Debt Stone for the Defendant 1. I agree that if the Action had been brought in that Court to recover a Debt then he ought to set forth how it became due but here he pleads to bar him and not to recover and so the Debt is not traversable 5 H. 7 1. there Brian took the Exception but two Judges are against him because he brought not Debt but another Action for the Chain 9 E. 4. 41. It is good by Moile without shewing the Debt because it is by way of excuse
39 H. 6. 9. is ruled in the point there the Attachment is in his own hands there the other pleaded there was no debt It is there ruled that the debt is not traversable for if there be no debt then he shall have restitution in London upon the pledges It was objected That he is to swear his debt to be a true debt I answer It ought to be so intended and then if he lay a Custom to swear the Debt and we say we have sworn our Debt then we have pursued the Custom 3. It was objected that it is not shewed where the goods were whether within the jurisdiction of the City 4 E. 4. 36. there the place came not in question But in our Case we lay That the Custom is that the goods must be in London Old Entries 155 156. there it is not alleadged that the goods were within the City of London at the time of the Attachment If a Precept be awarded to the Officer who retorns that he hath not any thing within the City and upon the allegation of the Plaintiff that such a one hath goods of the Defendant in his hands was the Objection I answer If we have not proceeded well yet the Process is well enough for here is a Judgment against him in London then so long as the Judgment is in force against him he cannot have the goods 21 E. 4 23. b. It is a Rule That a stranger unto a plaint shall not be received to alleadge discontinuance in the process So the Sheriff shall not excuse himself upon an Escape that there was Error in the Judgment nor a privy shall not take advantage of it Ognels Case Trim. 31 Eliz. there lies no process of Capias by the Law upon a Recognisance but Extent or Levari facias Yet there a Capias was awarded and if the party taken escape the Sheriff shall not take advantage of the Erronious process So I desire Judgment for the Defendant And he took an Exception to the Declaration In Detinue if the Declaration be general it is good sc Licet sepius requisitu c. But here he shews that he delivered the Cloak to be redelivered upon Request and he doth not shew any particular Request but sayes generally Licet sepius requisitus Ward There is a difference betwixt Detinue and Action upon the Case For in an Action upon the Case he ought to shew a particular Request 26 H. 6. If I bail goods to redeliver upon request yet I may seise them without request Dodderidge Justice The reseisure of the goods is a Request in Law a Request with a witness a Request with effect and untill Request he hath just cause to keep them Jones Justice In Debt and Detinue the very bringing of the Action and demand of the Writ is a demand and request And if he appear at the first Summons then he excuses himself otherwise he shall be subject to damages but the Request ought not to be so precisely alleadged But if a collateral thing be to be done upon Request there to say sepius requisitus is not sufficient So if I sell a horse for 10â— to be paid upon Request there the Request must be precisely laid for it is parcel of the Contract And in Action upon the Case and upon Debt you must lay a Request Dodderidge Justice The Request is no part of the Debt for the Debt is presently due but if I make the Request to be part of the Contract there it is otherwise As if I deliver goods to redeliver to me there needeth no precise Request but if it be to redeliver upon Request there the Request ought to be alleadged for there the Request is part of the Contract The Case was adjourned till the next Term. Pasch 3 Caroli in the Kings Bench. 484. MOLE and CARTER'S Case IN an Action upon the Case upon an Assumpsit it was moved in arrest of Judgment That the Plaintiff declares that he was possessed of certain Goods viz. such c. at London And that in consideration of two shillings That the Defendant at London did promise to carrie the said Goods aboard such a Ship if the Plaintiff would deliver the Goods to him And he shewed that he did deliver the Goods to him and that he had not carried them aboard He shewed that he was possessed of the Goods but did not shew when or where he delivered the said Goods to the Defendant but said only deliberavit c. And then the Law saith that they were not delivered Jones Justice The same is but matter of Inducement to the promise and ought not to be shewed so precisely Pasch 3 Caroli in the Kings Bench. 485. FRYER and DEW'S Case DEW being sued prayed his Priviledg because he is a Commoner in Exeter Colledg in Oxford and brought Letters under the Seal of the Chancellor of Oxford certifying their Priviledg and he certifies that Dew is a Commoner as appeareth by the Certificate of Doctor Prideaux Rector of the said Colledg Whereas he ought to certifie that he is a Commoner upon his own knowledg and not upon the Certificate of another But afterwards Certificate was made of his own knowledg and then it was allowed as good The Declaration came in Hill 2 Caroli The Certificate bore date in the Vacation and he prayed his Priviledg this Easter Term. After Imparlance he comes too late to pray his Priviledg The Certificate is not that at the time of the Action brought he was a Commoner in Exeter Colledg but that now he is a Commoner And the Certificate bears date after the Action brought He ought to have said that at the time of the Action brought and now he is a Commoner in Exeter Colledg The Priviledg was allowed per Curiam Trin. 21 Jacobi in the Kings Bench. 486. TANFIELD and HIRON'S Case THe Plaintiff brought an Action upon the Case against the Defendant for delivering of a scandalous Writing to the Prince and in his Declaration he set forth what place he held in the Commonwealth and that the Defendant seeking to extenuate and draw the love and favour of the King Prince and Subjects from him did complain that the Plaintiff did much oppress the Inhabitants of Michel Tue in the County of Oxford and that he did cause Meerstones to be digged up which might be a cause of great contention amongst the Inhabitants of Tue. The Plaintiffe denyed the oppression alledged against him and the Defendant did justifie and said that I. S. being seised of the Mannor of Tue did demise certain Lands parcel thereof unto I. F. for eighty years who made a Lease of the same at Will and afterwards I. S. did Enfeoff Tanfield the Plaintiff of the said Mannor to whom the Tenants did attorn Tenants And the Defendant shewed That time out of mind the Inhabitants of the Town of Tue had Common in the Waste of the said Mannor and that a great part of the said Mannor was inclosed and the Meerstones removed