owner had not any remedy and so here he doubted that when the Sheriff made execution whether he shall have any remedy or no and therefore it is good conscience to allow him to take a bond for that before he make execution for otherwise a great inconvenience may insue for perchance after the extent and before the liberate the parties may agree and then the Sheriff shall not have any thing for all his paines which he had taken in the extent which never was the intent of the Statute but it may be objected that in this case the Sheriff may have an action upon the case against the debtee or the conusee if he make such composition I answer yet this is a great hinderance and trouble to the Sheriff to prosecute the suite and it shall be very inconvenient to allow that the Sheriff shall be allowed no other remedy and then for the third point he argued that the Sheriff shall have 12. d. in the pound for the first 100. l. where the bond exceed 100. l. and 6. d. for that which exceeds for otherwise as the case is he shall have nothing at all for the first hundred pounds for the words of the Statute are if the same be above 100. l. then he shall have 6. d. so that 6. d. only shall be taken for that which is above 100. l. and nothing for the first hundred if this construction shall be made and he also remembred the objection made by Hendon and so concluded that judgement ought to be given for the Plantiff Hobert said cleerly the Sheriff may take a single bill for his fees and that is the ordinary course also he read the Statute of the 29. Eliz. that it shall be lawful to the Sheriff c. and said the words of the Statute made a contract in law for which an action of debt lyes for the Sheriff and he â—â—id to Serjeant Bawtry that the second point will be found to be against him and for the third point that the Sheriff shall have but 6. d. for all in the case the summe exceed 100. l. and so they thought judgement ought to be given for the Defendant and Iustice Winch said that the reason wherefore the summe of 12. d. in the pound is given if that not exceed 100. l. is because that it is as much labour to the Sheriff to execute 100. l. as it is for 500. l. Maps and Maps against Sir Isaac Sidley MApps and Mapps brought an action upon the case against Sir Isaac Sidley upon a promise and shewed that one named Holdish was indebted to the Testator of the Plantiffs in 12. d. upon a bond which became due and that the Defendant in consideration that the Plantiffs will forbear to prosecute a suit upon the same obligation he promised to pay that and the Plantiffs shewed that they had forborn him till such a day c. and upon non assumpsit pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Hitcham Serjeant of the King that this declaration is not good for this forbearance ought to be for ever and not a temporary forbearance only for the Defendant by his promise had made the debt his own as if the assumpsit promise had been to forbear to come to my house this ought to be a perpetual forbearance and here the assumpsion of the Defendant amounts to a release in law to the principal and yet he agreed if this had been generally that he had forborn and had not shewed he had forborn ill such a day the declaration had been good Hobert if the promise had been to forbear till such a day there he may sue the dettee if he do not pay it the day and it was adjourned Mich. 19. Jac. Mabies case MAbies case Hobert in Parson Mabies case if I let my rectory excepting my glebe the exception is void for no rectory may be without glebe and the same law of a mannor excepting the demeasnes but he may except parcel of the glebe and good but in pleading the lease of a rectory this shall be taken for the whole rectory and not for parcel Gratwick against Gratwick GRatwick brought a formedon in remainder against Gratwick and the Tenant pleaded that the day of the purchase of the writ and yet he the Plantiff is seised of the moity of the land in demand and it was argued by Serjeant Harvey that this is no good plea for he ought to shew of what estate he was seised and he may be seised by vertue of a Statute and he vouched the 39. E. 3. 7. Hobert if he had said that he was seised in his demeasne as of fee or as of freehold this had been good and a seisin by force of a Statute is no seisin at all and Hutton said if Tenant plead entry in part pending the wriâ— he ought to say that he entered and expulsed the other for otherwise it is not good and I conceive that the Court inclined that in the principal case that the plea for the cause aforesaid being of a general seisin was not a good plea. Sir Edward Grubham against Sir Edward Cooke AT another day the case of Sir Edward Grubham and of Sir Edward Cooke was moved againe and it was objected by Ashley that the declaration in the audita querela is not good because he had not shewed the day of the Testee and of the return of the writ execution in certainty but only by process such a day out of the Chancery which is not good but he ought to plead all the record of the extent in special and he offered to shew a president of that and secondly he had not shewed the execution of the liberate by which the land was delivered and so there is no express allegation of a grievance Richardson the presidents in the old book of entries are according to our declaration and Hutton vouched the 9. H. 6. and 39. H. 6 and in an action of debt upon a judgement he needs not recite all the record but he may begin at the judgement and as to the second point they all agreed that the party may have an audita querela before an ouster and yet here the showing that it was delivered to the conuser by the liberate is a sufficient averment of the ouster for it may not be delivered without an ouster and ruled that the Plantiff shall have judgement if the Defendant do not shew other cause by such a day Vpon a Capias Vtlagatum the sheriff returned that the party which was arrested had a protection from Lord Stafford who was a Lord of the Parliamen and it was moved by Serjeant Hitcham that the return was not good for the protection of a Lord of the Parliament is not good in a Capias Utlagatum which concerned the King and by Winch Iustice only present in Court the return is cleerly naught and day was given over to the Sheriff to amend his
the demandant who appeared and entred into warranty freely and he pleaded that he had nothing by descent from Christopher Goldingham his father upon which plea the Tenant and the vouchee were at issue and the demandant had judgement against the Tenant to recover but cesset executio until the voucher is determined and after that and before the day of the nisi prius Edward Goldingham died and then at the day the Tenant lost by default so is the Record and now upon the prayer of the demandant to have a writ of seisin these cases were moved First by Serjeant Hendon that the writ of seisin may be stayed because as he said the Tenant may revouch the heir of the heir for it is not possible that the vouchee should lose by default because that he was dead and therefore you may see that he conceived that where it is said in the Record viz. on the back of the postea that the Tenant lost by default he conceived that to be meant of the vouchee and not of the Tenant in the writ of Dower but Hutton was of opinion that admitting that it should be so intended yet he may revouch for there was a judgement given against him with a cesset executio till the voucher is determined and that is now determined by his death and when judgement is once given he had not day in Court but if the vouchee had died after the warranty then he may revouch but here the Court rather intended that the record shall be meant that the Tenant in the writ of Dower made default and then it is not possible that ever he shall revouch but they said it had been more question if the Tenant had appeared at the day of the nisi prius and had pleaded the death of the vouchee after the last continuance and had prayed the advantage of his warranty and at another day Hendon moved that the judgement given against the Tenant was not good for it was absolute with a cesset executio where that ought to be a conditional judgement c. against the Tenant if the vouchee had not assets and if he had then judgement against him according to the Lord Dyer 202. Mich. 3. Ma. Rot. 508. for otherwise the Tenant shall lose the benefit of his warrantie against the voucher and so if the heir do confess the assets yet the judgement shall be conditional for otherwise if he had not assets according to his confession the demandant shall have a new judgement against the Tenant and of this opinion was Iones Iustice But Hutton said that this was very well and that the judgement may be either wayes conditional or absolute and he said that this is no prejudice to the warranty for the Tenant may have a scire facias against the vouchee but in this case day was given over till the next Term and the Prothonotaries were commanded to search the presidents concerning that See more after Mary Over and her second husband against Tucker MAry Over and her second husband brought an action of Dower against one Tucker and demanded Dower of the indowment of one Paul her fiâ—st husband and it was agreed that this trial ought to be by witnesses according to Dyer 155. and it was awarded by the Court that the the Councel of either side should draw up Interrogatories and put their neams to them and then they should be delivered to Master Waller the Prothonotary in whose office the cause is entred and he shall have the examination of the witnesses of both sides and then seal up the Interrogatories again and so remain till they were delivered over to the Court and then qui melius probat melius habet The residue of Easter Term in the two and twentieth year of King James in C. P. AN action of debt was was brought against an Executor who pleaded plene Administravit and the other replied and shewed that before this action brought he brought another action against the Defendant in which he was outlawed and that after the reversal of the outlawrie he took out this writ c. and that he had assets at the first bringing of the first writ and issue was taken upon that and it was found for the Plantiff and it was resolved that the Plantiff shall have judgement for this is in nature of Journeys accompts according as it was in Aldridges case upon the same matter which was long debated by the Court and it was also affirmed to be good law in a writ of error brought of that in the Kings Bench for otherwise if it should not be so the Defendant himself should take an advantage of his own evil plea which the law will not allow by any means to be suffered but then it was said by the Court that in this case the Plantiff in the action ought to bring his second writ immediately after the reversal of the first judgement in the outlawry if he will take any advantage of that Trin. 22. Jac. C. P. Trinity Term in the two and twentieth year of King James in the Common Pleas. HIckford brought an audita querela against Machin and the case in effect was this Richard Davis 43. Eliz. acknowledged a Statute Merchant of 500. l. before the Maior and Clark of Gloucester to Machin and all the circumstances of the Statute de mercatoribus were well observed saving only that no day of payment was mentioned and after the said Machin took a lease for years of part of the land of which the Conusor was seised and after the Conusor died intestate and Hickford took out letters of Administration and Machin sued execution against the said Hickford who brought an audita querela and the single point was whether this Statute be good in regard that no day of payment is appointed and after divers arguments by the Serjeants in other Terms this Term it was argued by all the Court and the effect of their several arguments were in this manner Iones Iustice began and said it seems to me that the Statute is good and that no audita querela will lie and he said here had been 3. objections made against this Statute first that every Act of Parliament which gives directions for the doing of a thing ought to be precisely pursued and shall not have an explanation upon an explanation and he said that notwithstanding this objection he thought the Statute to be good for in every Act of Parliament there is substance and there is form and if the substance be observed though not every circumstance yet that is very good and so is the case concerning conditions which are as strictly to be observed as any thing yet if the substance be observed though not the very letter yet this is very good as the case of Scroop Cook 10. one Covenanted to stand seised to devise uses with a provisee that if he shall be disposed to alter disanul or change the uses c. that then it shall be lawful at all
pleads no award the Plantiff maintaines the award and the breach the Defendant rejoyned that before the time of the award they discharged the Arbitrators 75 Debt by a servant for wages in the debet and detinet and for 2 shirts in the detinet only good without shewing that it was according to the Statue and by several precipes in one writ 75 In Dower the Tenant pleads never seized to have Dower the husband having an estate but by disseizing which was avoided by entrie no Dower 77 In Debt two were bound for the appearance of annother and judgement against the debtor who upon the capias offers his body the Plantiff refuses the suerties are discharged but the Plantiff may take a Capias within the year but if he had come on the capias and had not Suerties and he refused him Quer. if he be not discharged 77 78 Dower of a reversion after a lease for years she shall have the rent and the Defendant pay no damages 80 Dower what judgement shall be given where the vouchee dieth whether absolute or conditional 81 88 Dower where the trial ought to be by witnesses and in what manner 82 Dower the Tenant pleads that the demandant had entred and disseized since the last continuance 90 Where the Demandant shall have judgement and where only a petit Cape 90 Dower against an Infant who pleads a devise to the demandant in satisfaction of Dower and entrie 100 E ERror lieth not for a judgement given in the Stanneries in Cornwal 8 If an Executor be nonsuit he shall pay no costs 10 Executor where he bringeth an action he ought to shew the Will otherwise if the issue be joyned 19 If the Debtor makes the Debtee Executor he may retain and plead fully administred 19 Execution what fees are due to the Sheriff where the debt exceeds 100. l. 21 22 Essoign in a Formedon after the Vouchee appeared 34 Escape against the Warden of the Fleet retaking upon fresh suit good after an action but not after issue joyned 35 Escheat where lands are given to a Monasterie and all the Monks die who shall have it the founders or the Lord of whom it is holden 38 Executor where he or a devisee shall have the Corn 51 If an Executor waste the goods of a Testator and dies intestate his Administrator shall be liable and by the Court 31 Ed. 3. Coo. 11. gives no remedy but against an immediate administrator 65 Estray whether the partie may fetter him or no 67 68 124 An Executor where compellable to plead a general issue and give the special matter in evidence 70 Executor may bring an action in the debet and detinet upon his own contract 80 Executor an action brought against him by Journeys accompts where good 82 Execution where the partie shall be discharged by supersedeas at the Courts discretion 100 101 Execution see purchase 112 F TEnant for life and he in remainder in tail Covenant to levie a fine Tenant for life dies if he in the remainder ought to do it 4 In a Formedon the Tenant pleads that at the day of the writ the Plantiff was seised of the moitie thereof not good 23 Fees where an action of the case lieth for them by a Sollicitor 53 54 G GEneral issue where it ought to be pleaded and where not 70 H HErriot whether it be due to the Lessee of part of the Mannor or to the lessee of the whole Mannor 46 47 57 I INformation for ingrossing a 100. Quarters of Corn and upon inquiry he is found guiltie of a 100. it is good for so much 5 In an idempnitate nominis the Plantiff prayed a superdeas to stay Execution Curia Advisari vult 6 Information for entertaining his apprentice without a Testimonial contrary to 5 Eliz. 25 Joynture the father makes a feofment to the use of himself for life the reversion to his son and his wife intail this is no Joynture though the father die in the life of the son so if it had been for years 33 Infant and Apprentice unto what Covenants lyable 63 64 Issue in a quare impedit is joyned the wife one of the Plantiffs dieth before the venire facias the writ doth not abate because it was a Chattle vested in her husband 73 Infant where he may declare uses upon a fine and what acts are by him void or voidable 104 Infant in a judgement against him where he shall be relieved by audita querela or error and whether against the Attorney who suffered it 114 K VVHere the King may seise without office and where not 9 Where an usurpation gaineth an advowson from the King 14 King where he hath title to present the incumbent being created a Bishop in Ireland and what act is a dispensation thereof and where a Commendam is well granted and the several kindes thereof 94 95 96 97 98 L A Lease of a rectorie excepting the Gleab void otherwise if parcel of the Gleab 23 A Lease for a year and so from year to year this is a Lease for 3. years and if the Lessee hold over Quer. what remedy for the rent 32 A Lease for years by him in remainder in tail if destroyed by a recoverie 41 42 43 In a lease to trie a title of several parcels he ought to enter into them all severally 50 M A Miss-trial is not aided by any Statute of Jeoffales 69 N NUsance by stopping the winde abated 3 Nusance for stopping a light abated 4 Notice to give bond where necessarie and where not 26 27 New Assignment if it be more large then the declaration it is good in Trespass but otherwise in an ejectione firme 65 Notice where ought to be taken and by whom 108 120 O ORdinary what power he hath to dispose after debts and legacies paid 11 An Obligation where good upon the Statute 23. H. 6. 20 21 50 51 P A Prescription to pay the Vicar a Buck in Summer and a Doa in Winter for a Park which becometh Disparked 144 Prescription to have land it self void 6 Prescription See Replevin A Prohibition to the Admiraltie lieth not after judgement given there 8 Protestation where good and where not 13 14 Prohibition where it lies to the Court of Audience for saying thou art a common and base Quean 14 15 Promise by a Lessee or a stranger to pay rent if an action he thereupon 15 A Presentation by the Lord Chancellor where it belongeth to the King is only voidable 19 Prohibition where it lies for a seat in the Church a difference between the Lord of the Mannor and another Person 19 A Protection from a Peer not good in a Capias utlagatum 24 A Prohibition where the parties agree in the modus but varie in the place of payment lieth not 33 A Prohibition awarded against one who sued in the Court of Audience Administrators for a Legacie as Executors 64 65 In a prohibition the Tenants of a Dean and Chapter alledge prescription for non-payment
a legal signification it shall not be taken but in the better sense for the small pox but Warberton said that if one say of another that he is laid of the pox an action lyes for it is intended the french pox and Winch said that those actions of slander were known to law but of late times and for that 26. H. 8. it was thought that an action would not lye for calling another thief and in the principal case judgement was commanded to be entered quod Querens capiat nihil per brevem suum and note that I saw Hobert shew presidents to Winch in a paper which were delivered to him by the Plantiff and drawn by his Councel and he said to Winch that by those it seemed that in the Kings Bench they made a difference between for and and as had been said before and he marvailed much at that In a Capias Ulagatum before judgement the Sherif returned that I. S. and I. N. rescoused the party c. and Attoe moved that the retorn was not good for there ought to be additions by which they may be sued to the outlawry but Hobert and the Court hold this to be good without addition for no statute nor book will compel the Sheriff to give additions in this case And it was said that if the Sheriff in this case retorn that the party himself simul cum I. S. and I. N. made the rescouse that this is not good but in the principal case it was ruled that the return was good and the rescousers which were present were committed to the fleet Homan and Hull were rescousers Vpon the reading of the record the case was that an executor brought an action against one upon a promise made to the Testator in which the executor was nonsuite and 3. l. costs given against him and the Defendant bruught an action of debt upon that recovery against the executors and upon this it was demurred in law and Serjeant Towse said that there are two causes of the demurrer first whether the Defendant shall be charged as executor and is not named executor and secondly whether upon the nonsuite of an executor the Defendant shall have costs by the statute of the 23. H. 8. Hobert chief Iustice said to him you say well Note that it was said by Hobert chief Iustice that if a man dies intestate and he to whom the Administration appertaines is sued by others which pretend to be Administrators and sentence is given against the right Administrator and costs given against him the costs shall not be of the proper goods of the Administrator but of the goods of the intestate as the costs which are spent in the spiritual Court for the provate of a Testament shall be only of the goods of the Testator Hutton if the Legatee sue in the spiritual Court for a Legacy and recovers the costs which he shall recover shall not be of his own goods but of the goods of the Testator and no prohibition shall be granted for any such sentence given in the spiritual Court Hobert to the contrary for if by such means the goods of the Testator are so wasted that the debts and legacies of the Testator may not be discharged a prohibition shall be granted and in every case where the sentence in the spiritual Court crosseth the common law a prohibition lyes and he said that in the case of one Barrow in this Court it was his opinion and the opinion of the rest of the judges that if Administration be committed by force of 21. H. 8. and the Administrator pay all the debts and Legacies that in this case the ordinary had not power to dispose of the rest of the goods to the children of the intestate but they shall remain to the Administrator and that by the very intention of the Statute of 21. H. 8. but Hendon said that he could shew a president of that and the Court desired that they might see that if any such president were LLewellings case VPon the reading of a Record in the case of LLewelling the condition of the obligation was that the obligor should surrender his Copihold land to the use of the obligee and he pleaded that he had surrendered that and upon that plea the Plantiff demurred and it was adjudged upon the opening of the case by Warberton and Hutton being only present in the Court that judgement shall be given for the Plantiff for the plea in barre is not good because the Defendant had not shewed when the Court of the Lord was holden Duncombe against the Vniversity of Oxford In a Qu. Impedit in which Duncombe and others were Plantiffs who were grantees of the King against the University of Oxford and the case was Hill 18. Jac. that Sir Richard weston was seised of an advowson in grosse inter alia and was convict of recusancy and a Commission issued to seise two parts of his land and goods and they seised this advowson inter alia and the King granted the advowson to the Plantiffs and the Church became void and they presented and were disturbed by the University of Oxford and their Clark upon which they brought a Qu. Impedit upon which a demurrer was joyned and Serjeant Iones argued for the Plantiff and there was two points in the case first whether an advowson in grosse is given to the King by the Statute of the 28. of Eliz. and the Statute is that the King shall seise the lands tenements hereditaments of such a recusant convict and whether by the same statute an advowson in grosse shall be seised and he held that it shall for though perchance the word lands and Tenements will not carry that being an advowson in grosse yet this word hereditament will carry it to the King by force of the Satute for it appears by dyer 350. that if the King grant an advowson by the name of an hereditament that in this case this will pass the advowson and for that Coke 10. Whistlers case the King by the grant an of hereditament grants an advowson by such words to a common person then by the same reason a common person may grant that to the King by the same words but it may be objected that because an advowson in grosse is not valuable therefore it is not given to the King and upon this doubt upon the Statute of Wills â— H. 8. the question was whether an advowson was devisable by the name de bonis et Cattallis fellon Butler and Bakers case that they are not devisable for it is not valuable but the 4th Iac. between Taverner and Gooch which case may be seen in the new book of entries that an advowson was devisable before the Statute 5. H. 7. 37. it shall be assets 9. H. 6. 55. recovery in value lyes of that but admit that this is only a thing of pleasure for the advancement of a friend yet that shall be given by the Statute to the King But the second
and at that day the Court was of opinion that judgement shall be given for the Plantiff for by the rejoynder the Defendant had shewed that he had forfeited the bond though that be another matter then is in the replication and so he shall have judgement super totam materiam according to the judgement in Francis Case Coo. 8. for their the declaration stood good though the Plantiff had not cause of action in the same manner yet because it appeared he had cause of action he shall have judgement Weaver against Best VVEaver against Best in debt for 48. s. in the debet and detinet and for 2. shirts in the detinet only and he declared that the Defendant such a year retained the Plantiff to be his servant in husbandry giving him 48. s. and a shirt by the year and he shewed that he retained him for the next year and he averred that he served him and they were at issue upon nihil debet and the Plantiff had a verdict for him and it was now moved in arrest of judgement by Serjeant Brigman because he had not shewed that his retainer was according to the Statute of the 5th of Eliz. which Statute limitteth the form of there retainer and their wages and other things and he had not shewed the place where service was and also he had joyned two debts in one action one in the debet and detinet the other in the detinet only and Winch Iustice said that the Statute of the 5. Eliz. extends to such as are retained in husbandry and therefore other retainers are left as they were before the Statute at the Common law and this shall be intended to be a retainer according to the Statute if the contrary be not shewed by the other partie for his retainer was for a year and therefore it shall be intended that the wages was appointed by the Iustices and it was also said by the Court that if the justices of the peace in this kinde do neglect to set down the wages yet a servant may bring an Action upon his own contract also it was said that he needs not to shew the place where he served for if he did no service yet if he did not depart it is very good and for the other matter it was clear that he may bring his Action so by several precipes in one writ Thornes case IT was agreed clearly between Thorn and C. that where an obligation is made and the obligor and the obligee conferred about it and the obligor said to the obligee that he had forged this this is actionable for here it refers to a certainty but if he had said to the other thus he was a forger and had forged falsâ— writings no action will lie for the words are to general in that case also it was agreed clearly by the Court the Sheriff may not arrest a man upon a Capias after the time of the return of the writ Grasier against Wheeler Grasier as Executor brought an action of Covenant against Wheeler upon a lease made by the Testator rendring rent and this was made by I. S. and the Defendant covenanted that the lessee should pay the rent and the Plantiff assigned the breach in non-payment of 30. l. to the Testator such a day when it was due and for 10. l. due in his own time and the attorney of the Defendants as to the 10. l. pleaded non sum informatus and as to the other he pleaded that the Defendant paid to the Testator 7. l. in money and a horse in full satisfaction of all the said 30. l and that the Testator accepted that in full satisfaction and the Plantiff said that this was paid to the Testator for another debt absque hoc that he received that in satisfaction of the 30. l. and now Devenport argued that the issue was misjoyned for the issue ought to have been taken upon the payment and not upon the acceptance and he cited Pinnels case Coo. 5. where the payment in full satisfaction ought to be pleaded precisely and he said that he agreed to the case of Nichols Coo. 5. where the issue was joyned upon payment upon a single Bill and found that this was not paid and the Plantiff had judgement but if the issue had been found for the Defendant that had not been aided by the Statute for though it had been paid yet that was no bar Bridgman contrary and he said the difference is where the issue is joyned upon a matter alledged by the adverse partie and they are at issue upon a point which is not material that is aided by the Statute of the 18. Eliz. and where no issue at all is joyned there is not any help Winch Iustice said that this is an issue which will make an end of the matter And at another day this Tearm Serjeant Harvey moved the case again in arrest of judgement because the issue is joyned upon the acceptance which is not material and he cited Fowkes case depending in this Court debt upon an obligation and the Defendant pleaded the acceptance of another obligation in satisfaction which in verity is no bar and issue was taken upon that and it was doubted whether this being insufficient be aided by the Statute or not Bridgman Serjeant said to the contrary and he said as before that because the issue is taken upon the allegation of the Defendant if it is not good yet it is aided by the Statute of 32. H. 8. and Hutton said this is a full issue and as to the traverse said it is a material issue for he pleaded that he accepted them for another thing absque hoc that he accepted them in satisfaction of the 30. l. which is the most proper issue for he said it is clear that he may say that he accepted them for part c. and good and so here The Countess of Barkshire and Sir Peter Vanlore in Dower IT was agreed clearly in Dower between the Countess of Barkshire and Sir Peter Vanlore that if the Tenant plead never seised to have Dower and in verity the husband of the demandant had an estate but that was by disseisin which is avouched by the entrie of the deseissee who had a title paramont this is no title by which she may have Dower though they are at issue upon this plea and also it was agreed that if a man had a good estate by bargain and sale from him who had right to alien that and yet after he accepts a fine upon conusance of right as that c. from the other partie though in this case this be a conclusion to the parties between whom the fine was to denie that the land was of the gift of the Conusor and so that he was seised yet it is not any conclusion to the jurors to finde the verity of the matter in fact and that he had nothing of the gift of the Conusor also it was agreed in that case if a man held lands
because this is for Merchants and the Statute was made for their securitie and by intendment they are men of forraign imployment and so have the less occasion to know the Law and these Statutes of traffick are to be cherished and not be pared to the verie quick and we all agree that every substantial matter ought to be pursued but not circumstances and then the question is whether this be substance or circumstance and we also agreed that there ought to be a time certain when the money shall be paid and that is either an actual time or a legal time and for the material points that ought to be acknowledged before an officer and in the Statute of Acton Burnel this word Maior is in that and no other principal officer and yet there is no doubt but that this may be taken before another who is a principal officer of a corporation though he be not a Maior Secondly this ought to be also before the Clark Thirdly it ought to contain words obligatorie Fourthly there ought to be a person bound Fifthly this ought to contain a summe but it may be a doubt if an action of debt will lie for that Sixthly it ought to be under the seal of the partie Seventhly it ought to be under the seal of the King Eightly the inrolments is also necessarie and this Statute is such a remedy as the Common Law never gave to the King himself so all assurances in this kind are to be made to the Merchants and certainly in our case the day is not so material but the time which the law will take notice of for the ignorance of the Maior must not make any Statute void and I do not grant the case that if this was to pay 10. l. after the death of S. P. this will not make that void but if the Statute be to pay at several dayes then then it is a quere in law whether it be payable till all the dayes of payment be past as of a bond and for the writ it is but to proportion our actions according and to do after this way or manner and so upon the whole matter I conclude that the Statute is good and that the audita querela doth not lie and judgement per Curiam was commanded to be entered against the Plantiff The case of Giles Bray was moved again in arrest of judgement and Hendon said that the Plantiff had declared of a waste made after the death of the said Edmund Bray the Grandfather which was to his disinheritance c. and the Iury did finde the original lease and assignment and they found that the waste was made before such a day which was before the death of the Grandfather and now he said that because it is found generally that before the death of the Grandfather the waste was made and this was found precisely and it is not found precisely that at the time of the waste made he was termor in possession and that is not good for it may be that he made that before the assignment and then it is not punishable of waste and if the waste was made in the life of the Grandfather he ought so to have declared for otherwise it was not immediately to his disinheritance nay the Grandfather might have during his life released or confirmed to the Tenant and so have determined the waste and then he in reversion shall not recover like to the case where an Abbot declares of the waste against the lessee of his predecessor and declares of waste generally this is not good for if this was made in the time of his predecessor then he may not punish that and so in our case perchance the Grandfather had released and then he in reversion may not recover but as to the first exception the Court seemed that because the Plantiff shewed expresly that he was possessed by vertue of the lease and he being so possessed made waste the finding of the jury shall be agreeable to that and so this exception was over ruled and for the other the rule of the Court was that whether this waste was committed in the time of the Grandfather or after his death this waste was to his disinheritance and the Grandfather by his release might not by any means discharge that waste for he may not transfer that priviledge and so the judgement was given for the Plantiff The residue of Trinity Term 22. Jac. C. P. NOw the case of Sir Robert Napper and Sir Thomas Earsefield was moved again in which the Plantiff assigned the breach because that after Sir Thomas and his wife did live asunder the land was not open nor subject to distress of Sir Robert Napper and upon the opening of this to the Court the Court conceived that this rent was granted to be paid immediately and to distrain for that but afterwards there is a clause that it shall not begin in point of payment till Sir Thomas and his wife did live asunder and then it shall be paid the first day which was limited after and Crawley Serjeant said that the intent was that it should begin presently and that it should be subject to distress and therefore to make that an entire covenant is against the very intentions of the parties for covenants in nature are several also if they shall be construed otherwise the partie shall be without the remedy which was intended S. a distress but the Lord Hobert and Winch were of opinion that if Sir Thomas Earsefield had received his estate truly that he had but a reversion expectant upon a term for years and then had made such a grant and such covenants then in this case the covenant had not been broken and then the meaning would be that he should not have any rent till he had one to grant but it doth not appear here and therefore is a difference and the covenant is broken and Winch said that the intent was that the wife shall have that for her maintenance when they did live asunder so that then it shall be paid to the use of his wife for this was in trust for her and for that reason they ought to be several covenants of necessitie for the state of the Mother of Sir Thomas Earsfield did not appear in those indentures and then he ought to take that as it is at this time and the appearing of that now is not material and if any other construction shall be made then the parties to the indentures shall be deframed Hutton of the same opinion that they are several covenants in the intent and meaning of the parties and they are of several natures for the first covenant is in the affirmative the second is in the Negative and the third is in the affirmative and it is all one as if the word covenant had been to every clause in express words for he did not say that this should be alwayes open and lyable to distress according to this estate for then it had been but
Winch seemed to agree and Hobert said that the writ of contra formam donationis was given to the Founder or Donor by the Statute and not by the Common Law but in the principal case the judges said they would advise of that and gave day over to argue that again Auditor Curles case before ANd now at this day the case of Auditor Curle was moved again in arrest of judgement by Hendon and he said Auditor Curle brought an action upon the case against Tuck and he shewed in his declaration the erection of the Court of Wards by the Statute of 32. H. 8. and that it was ordained by the same Statute that those persons which shall be ordained Auditors of the same Court shall be sworn and take an oath and that such a time the Plantiff was sworn an Auditor and that to the office was 2. s. due to be paid for the ingrossing of Feodaries and that the said Plantiff exercised the said office honestly and justly and with the fees and the profits of the same he maintained his family and that the Defendant such a day and at such a place having Communication with the Plantiff concerning his behaviour in his office said to him you have received money for the engrossing of Feodaries and I will prove that to be Cousenage and tunc et ibidem said you are a Couzner and live by Couzning and Hendon after verdict for the Plantiff moved in arrest of judgement first he said the office appertains to 2. Auditors as appears by the Statute of 32. H. 8. and by Auditor Curles case and if that appertain to 2. then this doth not appertain to the Plantiff alone and secondly the Plantiff had expresly laid in his declaration what fees are due to the office for the engrossing of Feodaries and then when it appears by his own shewing that the fees were due and that the Defendant said of him that he took money for the engrossing of Feodaries this may not be any scandall to him and he cited Suaggs case Coo. 4. where the Plantiff shewed that his wife was living and that the Defendant said of him that he had killed his wife here in this wise no action lies for it appears by his own shewing that the wife was alive and so no scandal and so in our case when he had shewed that such fees were due for the engrossing of Feodaries it was no scandal to him for the Defendant to say that he took money for the ingrossing of them and thereby the words are general of Couznage and they may have other interpretation as the Couzning at the Cock pits or the like and then those general words shall not be applied to his office and not left to such an exposition as is equivocal and he vouched Serjeant Heales case Mr. Heales Warrants have undone many a man and adjudged that an actition lies because it had relation to his profession but he said that this was afterwards reversed in the Exchequer chamber because the word Warrants is general and may be applied to other things but Winch interrupted him and said that it was not reversed for error then Hendon alleadged Yardleyes case 11. Jac. in C. B. where one said to another is Yardly your Attoâ—ney your Attorney is a briving knave and took 20. l. of you to Cozen me and the opinion was that an action will not lie and Winch interrupted him again and said it was adjudged the contrary and after Hendon alleadged Eliots case against Brown Hill 17. Jac. B. R. thou hast made false writings between I. S. and his brother and adjudged that an action lies and he cited Mallard against Wise for these words 10. Jac. Mallard is a knave and forged my husbands Will against his minde and ruled that no action lies and so 13. Jac. Harvey against Boking and he applied all those cases that the words ought to scandalize him in his office and profession for if words by any intendment may have relation to any thing else they shall not be interpreted to have relation to his office and therefore here the words are too general also he shewed that when the Plantiff had said that the Defendant such a day having communication concerning him in his office said you have received money for the engrossing of Feodaries which is Coznage and tunc et ibidem said you are a Cozner and live by Cozning these words tunc et ibidem shall not have relation to all but only to the last words and cited 5. H. 7. 8. to that purpose and so he concluded against the Plantiff Attoe Serjeant to the same purpose but his only argument was because the Plantiff had alleadged that the fees were due to him and so no scandal according to Snags case But it was resolved by Hobert and Winch being only present for Hutton was in the Chancery and Iones was not yet returned from Ireland that the Plantiff shall have judgement and first it was agreed by them and by Hutton the day before that tunc et ibidem shall have relation to the same time that the first words were spoken and secondly by Hobert and Winch though the office appertaines to 2. yet this is a scandal to him for the scandal is to the person and not to the office and the persons are distinct and several though the office is joynt and they may not joyn in an action for of the other no words are spoken and so they agreed that this objection is of no force and as to the other objection which was made by Hendon and by Attoe Hobert said that true it is as had been cited but he said for his part he never was nor yet is satisfied in the Law of that case for be she in life or not yet the scandal is the same to the standers by who perchance did not know that she was living and so the scandal never the less but admitting the case to be good Law yet our case differs from the reason of that for in our case he had shewed that 2. s. fees were due to him for the ingrossing of Feodaries and the Defendant said that he took money for the ingrossing of Feodaries which is Couzning and so shall be intended that he took more then was due and this is extortion and as to Eliots and Browns case he agreed that to say he had made false writings no action will lie for it is no scandal to him in his profession for it doth not appertaine to an Attorney to make writings no more then it appertaines to an Appothecary to give Physick and so it is no scandal to him in his profession and he agreed the case of Mallard against Wise he forged my husbands Will no action will lie for the words are repugnant and contrary for if it be forged it is not the Will of her husband but in our case the words had a plaine sence to common understanding and shall be intended to refer to his office for if he
against Hutchinson and made title to present to the Church in the right of his wife and after the issue joyned and before the venire facias the wife died and the Plantiff shewed that himself had took out a venire facias in his own name and upon that Harris demurred in law because he supposed that the writ was abated but Winch was of opinion that the writ was not abated because this was a Chattel vested in the husband during the life of the wife Ferrers against English IN an action upon the case upon a promise between Ferrers and English and upon non assumpsit it was found for the Plantiff and now it was moved in arrest of judgement that the venire facias was not well awarded for it was proecipimus quod tibi venire facias Duodecim liberos et Legales homines Coram Henrico Hobert apud Westmonasterium where that ought to be Coram Iusticiariis nostris and therefore the writ being insufficient it is not amendable and for that he cited the case where the venire facias was awarded to th Coroner and that ought to be awarded to the Sheriff and this adjudged to be erroneous this case was answered that this was the custome and there was a case alledged to be adjudged 30. Eliz. between Cesor and Story where a Capias did issue out of this Court in this form Ita quod habeas Corpus ejus Coram Iusticiariis omitting apud Westmonasterium and this was reversed for error but this was answered to be in an original which ought to be precise in every point but Serjeant Crook said that because this was but judicial process and the trial is taken upon the habeas corpus that it is amendable for in all cases where the roll is right though there be an error in the venire facias yet this is amendable Sir Robert Nappers case A Rent was granted to Sir Robert Napper and if it happen that this annual rent to be behinde that then the land shall at all times be open and subject to distress of the Grantee according to the true form and effect of the said indenture and upon all the pleading a demurrer was joyned and the sole doubt was whether the last words were a distinct covenant by themselves for if they are then the obligation is forfeit for the lands are not open to distress because that the mother of Sir Robert held that till the age of 24. years or whether they are part of the former covenant and then the former worde will qualifie that because there was not any act made by him to the contrary and it was argued by Bawtrie that they are all one covenant for they charge the land with the Annuitie and he covenants that this shall be open to distress and it is all one matter and thing and is therefore a covenant and where one covenant doth depend upon another there one expounds the other so Dyer in Throgmortons case 151. and he urged many cases which are cited there and he cited the Lord Cromwels case where words of proviso are placed between words of covenants yet they will work according to the intent of the persons and there it is said that ex antecedentibus et consequentibus fiat relatio and so it appears to him that this referred to the estate which Sir Thomas had from his father and that he made nothing to impeach or to alter that and he cited the case of Sir Moile Finch though by the fine the Mannor of Beamstone was destroyed yet in the said indenture free egress and regress was reserved to the Courts for the Lady Finch afterwards an other fine was levied of all the lands and Tenements except the Mannor of Beamstone where in verity that was destroyed before and yet the judges did construe this to be a good exception because this was in verity the intent of the parties and there they made a construction upon the covenants which did lead the fine and upon the latter indenture which did direct the others and so the principal case in Althams case the judges did not only adjudge upon the first words of the lease but upon altogether and he cited the case of Hickmote where the exception extends to all the parties of the precedent deed and Hendon argued to the contrary that they were several covenants and yet he granted all the cases cited by Bawtrie but said they all stood upon this difference where it is a joynt thing and where it is a several thing as here and for that reason that ought not to be applies to that for they are distinct sentences and not joynt as is expressed in Sir Henry Finches case Coo. 6. and they ought to be construed as distinct covenants for otherwise they shall not take effect at all for then he had not any remedy for the rent which is expresly against the intentions of the parties and Crawley Serjeant said that if the two first covenants were according to the title and the last was only conditional if the rent was behinde that then it should be open to distress and the Court seemed that they were several covenants but judgement was respited for that time and the same Term the case was moved again by Hendon that they were distinct covenants and that this was the scope of the indenture and the intention of the parties that this should begin presently and secondly the two covenants are of several natures and if the third covenant be not several then it is idle for all is implied in the first and day was further given to advise of that but the opinion of the Court seemed to be for the Plantiff See after Trin. 22. Iac. Westlie against King VVEstly against King in debt the bond did bear date the 11th of February 18. Iac. and this was to perform an award Ita quod the ward be made before Easter of all controversies depending between them in the Star chamber and the Defendant pleaded that there was no award made in the mean time and the other shewed the award and assigned the breach and the Defendant replied that before the award was made c. upon the 16th of March they discharged the Arbitrators and so concluded as at the first they made no award and now Serjeant Davenport moved that he had not maintained his bar quod non fecerit tale arbitrium and have given the discharge in evidence for now it appears that the bond is forfeit but Hutton said that the Plantiff ought to have shewed this discharge and so he had shewed the forfeiture and he said further that the rejoynder is an affirmation of the bar if they were discharged then they made no award and this notwithstanding shewed a forfeiture of the bond but not upon the point which the Plantiff had alledged and Winch said though this is is so yet it appears that the Plantiff had cause of action by all the record before and day was given over in the case
this rent for this is forced in by the name of land which is absurd and contrary and here is not any fine levied directly of the rent nor any Silver of the King paid for that but only by the judgement of consequence and now for the Statutes of fines whether it is a fine within these Statutes and I hold that it is not and I am of opinion that if the rent had been behinde before all the dayes of proclamation pass and the issue had accepted that he is remitted and the same law is if Tenant in taile of such a rent and he acknowledge such a fine with proclamations and the proclamations pass now if his issue had accepted the rent before the proclamations passed he is remitted and now for the Statute of 32. H. 8. that is not taken by equitie because it is a Statute of explanation which regularly may not be inlarged and so appears in Butler and Bakers case and now for the agreement it self that is not any thing for this is by a contrary name which may not be good like to the case of the Lord Cromwel for there was an agreement to raise a rent by fine but here is an agreement to pass a rent by another name and will any man say that if a man agree to levie a fine of rent by the name of an advowson that this will pass the rent and I think that the case of Thornton is good law and so is also the case which is put after that of the advowson and yet I agree if Tenant in tail do accept a fine with render to another for years that shall bar him because that doth not work a discontinuance but otherwise where it is for life and so in my opinion the rent remains and the avowant shall have judgement The argument of the Lord chief Justice Hobert HObert to the contrary the short question is whether the rent is extinct by the fine of the land and I hold that it is and it is agreed it is a bar against the parties themselves though not against the issue and that being granted I see no second reason wherefore the issue shall not be barred and first I am of opinion that this plea of not comprised it is not good because this fine doth work by way of release but it was said at the bar that things ought to pass litterally in a fine which I denie and also every informalitie of a fine which is cause to reject that is not a cause to frustrate that when that is levied and the words of the Statute are of any lands Tenements or hereditaments any wise intailed and if there be any word in the conveyance which will carry that it is sufficient and it shall be put upon the construction of the law and as to that that the fine shall be according to the writ of covenant but I say if there be no writ of covenant then there is no departure but it was said that the Silver of the King was not paid which I also denie for it was paid inclusively and the words of the Statute are of any thing any wise intailed and Tenant in taile had as great power to pass that by fine as Tenant in fee simple and for the case of Thornton I know he was a learned man but let it suffice that he was so esteemed but for his opinion I do utterly denie that and I do denie the case put by my brother Hutton of the Piscary for I hold if a man had a Piscary in another mans land and levies a fine of that by the name of land this will pass the Piscary clearly and so the same if a man have an office appertaining to land intailed and a fine is levied of that by the name of the land this shall bar the issue and I denie that Statutes of explanation shall alwayes be taken litterally for it is impossible that an Act of Parlâ—ament should provide for every inconvenience which happens and so the case of Godfrey and Wade adjudged that the fine of the youngest son may not bar the eldest and yet within the words the eldest was heir to him but this word heir shall be expounded as his heir and so we use to expound the Statute of 4. H. 7. which is an original Statute and bindes parties and privies and here the eldest brother is not privie for he claimes before him and so I conclude that the rent is gone and judgement was given accordingly Sir Robert Hitcham against Brooks SIr Robert Hitcham Serjeant of the King brought an action upon the case against Brooks and set forth in his declaration that he was one of his Majesties Serjeants at law and that the Defendant spoke these words of him I doubt not but to prove he innuendo Sir Robert Hitcham hath spoken treason and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Hendon first because it is not a direct affirmation that he spake treason but he doubts not but to prove that like to Penticosts case which was adjudged here where one Baker said of him I will prove that Penticost was perjured and no action will lie because he did not directly affirm that he was perjured Secondly because he had not shewed when he spoke those words and perchance it was in his infancie or lunacie or before the general pardons Thirdly here is not any allegation of any conference had of the King before and the speach of Treason is not Treason but when there is an intent to commit that and words shall be taken in the best sence as the case of Stanhop Cook 4. and so in the case between the Earl of Shrewsbury and Sir Thomas Stanhop one laid to Sir Thomas Stanhop that the Earl is a subject nay said Sir Thomas that is his grief and adjudged those words are not actionable and yet the words might be taken as if he had repined to have a Soveraign but the words were taken in the best sence Finch to the contrary this is more then a bare affirmation for he said he doubted not but to prove that asmuch as if he had said I am sure of that and Mich. 16. Iac. Sidnams case where one said I think in my conscience that if Sir Iohn Sidnam might have his will he would kill the King and all his good subjects and adjudged upon a writ of error brought of that the words are actionable and so in Whorewoods case so sure as you beleeve that God rules the world and that the King rules the Kingdome so sure did Whoorwood steal such goods and adjudged to be actionable and yet perchance the partie to whom he spake did not beleeve either of them and so Woods case 18. Iac. I will call him in question for killing of a man I will pawn my shirt but I will hang him and so here and prayed judgement for the Plantiff Ashley Serjeant contray words which may be taken