granted And here it was agreed That if a woman do convey a Lease in trust for her use and afterwards marrieth that in such case it lies not in the power of the husband to dispose of it and if the wife die the husband shall not have it but the Executor of the wife and so it was said it was resolved in Chancery 70. Barckley and Crooke there being no other Justice at that time in Court said That upon a Petition to the Archbishop or any other Ecclesiastical Court no Prohibition lieth But there ought to be a Suit in the Ecclesiastical court And by them a Libel may be in the Ecclesiastical court for not repairing a way that leadeth to Church but not for repairing of a high-way and upon suggestion that the Libel was for repairing a high-way a Prohibition was granted 71. Many Indictments were exhibited severally against several men because each by himself suffered his door to be unrepaired and it was shewed in the Indictments that every one of them ought to repair And thereupon it was moved that they might be quashed but the Court would not quash them without certificate that the parties had repaired their doors but it was granted that Process should be stayed upon motion of Counsel that reparation should be immediately done But at the same time many Indictments for not repairing of the high-way which the Parishioners ought to have repaired according as it was found by Verdict the same Term were quashed for the same defect But in truth there was another fault in the Indictment for that it was joynt one only whereas there ought to have been several Indictments but they were quashed for the first defect 72. A Replevin was brought in an Inferiour Court and no Pledges de retorno habendo were taken by the Sheriff according to the Statute of West 2. c. 2. After the Plaint was removed into this Court by a Recordari and after Verdict given it was moved in arrest of Judgment want of Pledges for thâ—se reasons because the Pledges de retorno habendo are given by that Statute as 2 H. 6. 15. and 9. H. 6. 42. b. And that Statute saith That Pledges shall be taken by the Sheriff and therefore no other can take them notwithstanding that Pledges might be found here in Court And 3 H. 6. 3. and F. N. B. 72. a. say That where Pledges are found that they shall remain notwithstanding the removal of the Plaint by Recordari and the reason is because the Sheriff is a special Officer chosen to that purpose by the Statute and therefore no other can take them Besides there would be a failer of Justice if the Court should put in Pledges for then there might be no remedy against the Sheriff for that he found no Pledges and no remedy against the Pledges because they are not found according to the Statute and so a failer of Justice and by that means the Sheriff should frustrate and avoid the Statute for no Pledges should ever be found and so he should take advantage of his own laches and wrong Farther it was objected that these proceedings are the judicial act of the Court and therefore the Court will not alter or diminish them L. Entries 1. and 3 H. 6. And farther it was said That the cases of Young and Young and Dr. Hussies case adjudged in this Court That Pledges may be found at any time before Judgment were in Action upon the Case and not in Replevine as our case is for which there is special Provision made by the Statute But it was answered and agreed by the whole Court that Pledges may be found by this Court for the Pledges given by the Statute of West 2. are only to give remedy against the Sheriff and if the Sheriff do not his duty but surceaseth we may as at the Common Law put in Pledges and yet notwithstanding remedy may be against the Sheriff upon the Statute for his neglect And farther it was agreed That Pledges may be found at any time before Judgment as in Young and Youngs Case and Dr. Hussies Case it was adjudged And Judgment was affirmed 73. There can be no second Execution granted out before that the first be returned 74. Two Joyntenants of a Rectory agree with some of their Parishioners that they shall pay so much for Tithes and notwithstanding one of thâ—m sueth for Tithes in the Ecclesiastical court and a Prohibiâ—ion was prayed because that one of them cannot sue without the other and the Court would not grant it and their reason was because although that one of them cannot sue without the other by our Law yet perhaps the spiritual Court will permit it 75. Husband and Wife brought a Writ of conspiracie and it was adjudged that it would not lie And Iones cited this case That Husband and Wife brought an Action upon the Case against another for words viz. That the Husband and Wife had bewitched another and it was not good because that the wife cannot joyn for Conspiracie made against the husband nor for trespass of Battery as the Book is 9 E. 4. But Justice Crook was of Opinion That the Conspiracie would well lie because that the Indictment was matter of Record and therefore not meerly Personal but the whole Court was against him and Justice Barckley took the difference where they sue for Perâ—onal wrong done to thâ—m there they shall not joyn but wherâ— they have a joynâ— Interest as in case of a Quare impedit there they shall joyn Thurston against Ummons in Error to Reverse a Iudgment in Bristow 76. THurston brought an Action upon the Case against Vmmons declared That the Defendant brought an Action against him at the Suit of Hull without his privity And thereupon did arrest and imprison the Plaintiff by reason whereof all his Creditors came upon him and thereby that he had lost his Credit c. And a Verdict was found for the Plaintiff and thereupon Error brought and two Errors were alledged 1. That the Action will not lie because in truth there was a just Debt due to Hull in whose name he sued 2. Because it is not shewed that the causes of Actions which the other Creditors had against him did arise within the Jurisdiction of the Court of Bristow And notwithstanding the first Error alledged Judgment was affirmed by the whole Court upon this difference where Hull himself sueth or commenceth Suit against the Plaintiff there although by that Suit he draw all the Creditors upon the back of him and so perhaps undo him yet because it was a lawful act no Action upon the Case lieth against him But where one commenceth Suit against another in the name of another and without his privity that is Maintenance which is a tortious Act and therefore an Action will lie so in the principal case As to the second Error alledged the Court differed in Opinion Barkley That the damages were ill assessed because they were given aswel for
Branches should be priviledged And a man shall not pay Tithes of Quarries of Stonâ— And Barckley said It had been adjudged That a man shalâ— not pay Tithes for Brick and Clay 90 A. said to B. Hast thou been at London to change 〈◊〉 Mony thou stolest from me And it was Objected That thesâ— words are not actionable because they are an Interrogatorâ— only and no direct affirmativâ— But by Barckley and Ioneâ— the other Justices being absent the words are actionablâ— For the first words Hast thou been at London are the wordâ— of Interrogation and the subsequent words viz. The 〈◊〉 thou stolest from me is a positive affirmation And Barckley said That it had been oftentimes adjudged That words 〈◊〉 Interrogation should be be taken for direct affirmation Ioneâ— also agreed to it and he said that this Case had been adjudged That where a man said to I. S. I dreamed this night that you stole an Horse That the words are actionable And if these and the like words should not be actionable a man might be abusive and by such subtile words always avoid an Action 91. A. said of B. that he took away money from him with a strong hand and alledged that he spoke those words of him innuendo feloâ—icè and for them the Plaintiff brought an Action upon the Case And by Barckley and Iones none other being present the Action doth not lie â—or he may take money from him manu forti and yet be but a Trespasser and therefore the Innuendo is void for that will not make the words actionable which are not actionable of themselves 92 Justice Iones said that it was a question Whether a Bar in one Ejectione firme were a Bar in another And Justice Barckley said that it is adjudged upon this difference That a Bar in one Ejectione firme is a Bar in another for the same Ejectment but not for another and new Ejectment to which Iones agreed Dickes against Fenne 93. IN an Action upon the Case for words the words were these the Defendant having communication with some of the Customers of the Plaintiff who was a Brewer said That he would give a peck of Malt to his Mare and she should piss as good Beer as Dickes doth Brew And that he laid ad grave damnum c. Porter for the Defendant that the words are not actionable oâ— themselves and because the Plaintiff hath alledged no special Damage as loss of his Custome c. the Action will not 〈◊〉 Rolls that the words are actionable and he said that it had been adjudged here That iâ—â—ne say of a Brewer That he brews naughty Beer wiâ—hout more saying these words are actionable without any special damage alledged But the whole Court was against him Crooke only absent That the words of themselves were not actionable without alledging special damage as the loss of his Custome c. which is not here And therefore not actionable And Barckley said That the words are only comparative and altogether impossible also And he said that it had been adjudged that where one says of a Lawyer That he had as much Law as a Monkey that the words were not actionable because he hath as much Law and more also But if he had said That he hath no more Law than a Monkey those words were actionable And it was adjorned Hodges and Simpsons Case 94. A Man brought an Action of Trover and Conversion against husband and wife of two Garbes Anglicè Sheaves of Corn and said that they did convert those sheaves ad usum ipsorum viz. of the Husband and Wife And here were two things moved by Hyde First that he shewed the Conversion to be of two Garbes Anglicè Sheaves of Corn which plea is naught and incertain And Courts ought to have certainty but here it is not shewed what Corn it was And the Anglicè is void and therefore no more than Trover and Conversion of so many Sheaves which is altogether incertain and therefore not good The other thing is That the Plaintiff sayth that the conversion was ad usum ipsorum which cannot be for the wife hath no property during the life of the husband and therefore cannot be ad usum ipsorum And he cited two Judgments in the point where it was adjudged accordingly And Justice Barckley said that it had been many times so adjudged But Justice Iones said that there may be a Conversion by the wife to her use as in this case to bake the Barley into bread and to eat it her self And Bramston Chief Justice said that a wife hath a capacity to take to her own use for there ought of necessity to be property in the wife before the husband can have by gift in Law and they desired to see Presidents And therefore it was adjourned as to this point But by the whole Court the other was not good More of the Case of North and Musgrave 95. MAynard for the Plaintiff in the Writ of Error That the Judgment was erroneous First because the damages and costs were given where none ought to be given being a penal Law and therefore no more than the penalty shall be recovered And he remembred the rule taken in Pilfords case 10 Rep. 116. a. and he cited divers Presidents also for it Cokes Book of Entries 31 41. And Presidents upon the Statute of Perjury 38 39. Secondly because he divided the Penalty given by the Statute which ought not to be for by such means the offender should be doubly vext for he might sue him after for the six pence praeter ultra that which was taken for the distress And he said it is like to the case of an Annuity which is entire and cannot be divided Thirdly he said That the Judgment it self was erroneous because that Judgment is given for more than he demands For the Judgment is quod recuperet 5. li. ultra praeter that which is above the 4 d. given by the Statute Rolls contrary that the Damages and Costs are well given and the same is out of the rule of Pilfords case because that the Action is no new action but the thing is a new thing for which the old Action is given And the Damages and Costs are here given for the Suit and Delay and not for the Offence And he cited also Presidents for him viz. The new Book of Entries 163 164. For the second point he said That they are several penalties which are given and therefore he might bring his Action severally for them if he would As to the third point That Judgment is given for more than the party declares it is not so for then the Judgment shall be made vitious by Implication which ought not to be And as to dividing of the penalty and Judgment the same was good by the whole Court for the reasons before given As to the giving of Costs Iones and Bramston Chief Justice conceived that they were well assessed upon the presidents before cited But Barckley
three years it did not give Lapse without notice for it was avoidance in Law not in Fact vid. Stat. 9. Eliz. for Excommunicating a striker in the Churchyard c. This Statute of 31 Eliz. differs from the Statute of 1 Eliz. for not reading of the Articles Those Statutes say that it shall be void ipso facto but not so in our Case And the Cases cited for Authority in the point are betwixt party and party and not in case of a third person as our case is 18 Eliz. Dyer A meer Lay-man is presented it is not ipso facto void without Sentence So it is of one within the age of nine years for he cannot govern others Trinit 4 Iac. in the Common Pleas Cooke and Stranges case The King Presents and before Institution Presents another it is good but in the interim the King ought to repeal his first presentment and that is a revocation vid. Dyer 292. a. where it is a Quere Whether he need not to alledge that a Repeal was brought and shewed c. The King grants and afterwards makes a second Grant of the same thing There are many Examples in Brooke and Fitzherbert that it is not good without a Repeal But this Case viz. of 6 H. 8 9. extends only to â—and and not to an Advowson c. But it was resolved by all the Judges That the Church was void by the Statute of 31 Eliz. to all purposes and to all persons as to the Pâ—râ—shioners as to a stranger who brings Trespass or Ejectione firme as to the King as to him who Presents and that without deprivation or Sentence declaratory in the Ecclesiastical Court And accordingly Judgment was given Hichcocke against Hichcocke 140. THe Case was this The Vicar did contract with a Parishioner to pay so much for encrease of Tithes and died and his Successor fued in the Ecclesiastical court for them And a Prohibition was prayed and granted by all the Justices And here it was said That a real Contract made by the Parson and confirmed by the Ordinary could not be altered in the Spiritual Court And by Serjeant Mallet a real accord though it be between Spiritual Persons and of Spiritual things yet it is only questionable at the Common Law 20 E. 3. Annuity 32. 38 E. 3. 6. 8 19. And by Serjeant Clarke Real composition by a Parson who claims not any encrease of the endowment to the Parsonage shall not binde his Successor The words of the Contract here were inter se convenerunt and that is no real Composition although that the Bishop call it so realis Compositio and his calling of it so doth not alter the nature of it but it remains a Personal agreement and so shall not bind the Successor although it be confirmed by the Bishop A Parson cannot do any thing to the damage of his Successor The Vicar took Oath That they were not for encrease of Tithes the Ordinary being a stranger to the Composition is not made a party by his Confirmation nor is the Composition altered by it Littleton Sect. 335. The Lord confirms the Land to the Tenant the same doth not alter the Tenure nor prejudice the Lord. The power of the Bishop augendi minuendi the Portion of the Vicar is by the Common Law for general Cure of Souls The Parson and Vicar have privity betwixt them 40 E. 3. 28. 31 H. 6. 14 16 Ass Annuity 32. 2 Rep. 44. Plow Com. 496. 21. E. 3. 5. 10 H. 7. 18. Dyer 43 84. 141. A Prohibition was prayed to the Court of Requests and the Case was thus A Feme sole possessed of a Term conveyed the same over in Trust for her and Covenanted with I. S. whom she did intend to marry that he should not meddle with it and for that purpose took a Bond of him They intermarried he may intermeddle with it but he shall not have it and by Equity he cannot assigne it by reason of the Covenant before marriage A Feme sole conveys a Term in Trust and then marrieth the husband assignes it the Trust not the Estate shall pass by Reeve and Foster But by all the Judges a Prohibition shall not be for it is matter only for Equity But if they direct Demisit or non demisit Assignavit or non c. then they exceed their Jurisdiction and a Prohibition heth 142. A woman brought a Writ of Dower and recovered and upon a suggestion made upon the Roll that the husband died seised a Writ of enquiry of Damages issued forth And before the Retorn thereof a Writ of Error was brought and it was by Steward against Steward and two things were moved 1. Whether Error would lie before the Retorn of the Writ of Enquiry or not 2. Whether the Writ of Error be a Supersedeas to the Writ of Enquiry And by Taylor and Rolls Serjeants That Error doth not lie before Judgment upon the Writ of Enquiry And this case they compared to Medcalfes case 11 Rep. 38. But by Serjeant Bacon it is well brought Dower is by the Common Law and damages are given by the Statute of Merton and that is the main Judgment 5. Rep. 58 59. And the very case is put in Medcalfes case 11 Rep and distinguished from other cases And it was argued by another Serjeant That the Error was well brought because that in Dower the Judgment doth determine the Original and therefore at the Common Law Error will well lie And the damages are given by the Statute of Merton but that doth not alter the Judgment or the nature of the Action It differs from the case of Judgment in an Ejectione firme and Accompt for after such Judgments Noâ—suit may be but not so in the case of Dower in which Judgment is quod recuperet c. A Precipe is brought against two one pleads to issue the other an insufficient Plea upon which Judgment is given No Error lieth before Judgment be given for the other for the whole matter is not determined But in several Precipes against two it is otherwise 34. H. 6. 18. Fitz. Scire facias 11 Rep. 39. a. b. In case of Ejectione firme it is a Quere if Error may be brought c. And Bankes Chief Justice said That it had been adjudged both ways but that differs from our case for in that damages are given by the Common Law Judgment is in a Quare impedit Error may be brought before c. which is like to our case for damages in both cases are given by Statute And where it was objected That thereby damages should be lost He answered No. For the Kings Bench may award a Writ of Enquiry of Damages And the 11 Rep. is express Authority 2. The Error is no Supersedeas c. 11 Iac. in Tincke and Brownes case it was ruled and resolved That a Writ of Error brought was not a Supersedeas to the Writ of Enquiry of damages But it was resolved by all the Judges that the Error
age should be which should be a great mischief And where it is objected it may be for his benefit To that he answered that the Law will not leave that to him to judge what shall be for his benefit what not and to this purpose amongst other he cited it to be adjudged That where an Infant took a shop for his trading rendring renâ— and in debt brought for the rent the Infant pleaded his Infancie the other replied that it was for his benefit and livâ—lihood and yet it was adjudged for the Infant vid. 13 H. 4. 12. 10 H. 6. 14. Books in the point and therefore he prayed that Judgment might be stayed Bramston Heath and Mallet Justices Barckley being then impeached for High Treason by the Parliament were clear of Opinion That the submission by an Infant was void and they all agreed That if the Infant was not bound that the man of full age should not be bound so that it should be either totally good or totally void But Ward who was of Counsel with the Plaintiff said that the case was not that the infant submitted himself to the award but that a man of full age bound himself that the Infant should perform the Award which was said by the Court quite to alter the Case To that Trevor said that the case is all one for there cannot be an Award if there be not first submission and then the submission being void the Award will be void and so by consequence the Bond and to prove it he cited 10 Rep. 171. b. where it was adjudged that the non-performance of a void Award did not forfeit the Bonâ— and many other Cases to that purpose And the Court agreed That if the Condition of a Bond recite that where an Infaâ—â— hath submitted himself to an Award that the Defendant doth bind himself that the Infant shall perform it that the samâ— makes the Bond void because the submission being void allâ— void and therefore day was given to view the Record 190. A. and B. are indicted for murder B. flies and A. brings a Certiorare to remove the Indictment into the Kingâ— Bench Whether the whole Record be removed or but partâ— Keeling the younger said that all is removed and that theâ— cannot be a Transcript in this Case because he said the Writ saith Recordum processus cum omnibus ea tangentibus but the Chief Justice doubted of it and he said that the Opinion of Markham in one of our Books is against it and he said it should be a mischievous case if it should be so for so the other might be attainted here by Outlawry who knew not of it and note that Bramston Chief Justice said That the Clerk of the Assises might bring in the Indictment propriis manibus if he would without a Certiorare 190. A man was outlawed for Murder and died his Administrator brought a Writ of Error to reverse the Outlawry and it was prayed that he might appear by Atturney and by Bramston Chief Justice and Justice Mallet none other being then in Court it was granted that he might for they said that the reason wherefore the party himself was bound to appear in proper person is that he may stand rectus in Curia and that he may answer to the matter in fact which reason fails in this case and therefore the Administrator may Appear by Attorney 191. One said of Mr. Hawes these words viz. My Cozen Hawes hath spoken against the Book of Common Prayer and said it is not fit to be read in the Church upon which Hawes brought an Action upon the case and shewed how that he was cited into the Ecclesiastical Court by the Defendant and had paid several sums c. The Defendant denied the speaking of these words upon which they were at issue and it was found for the Plaintiff and now it was moved by Keeling for stay of Judgment That the words are not Actionable as to say A man hath spoken against a penal Law which doth not inflict punishment of life and member will not bear Action and the punishment which is inflicted by the Statute of 1 Eliz. cap. 2. is pecuniary only and not corporal but in default of payment of the sum that he shall be imprisoned for such a time which meerly depends upon the non-payment and is incertain And by the same reason he said to say of a man that he hath not Bowe and Arrows in his house or not a Gun or to say of a man That he hath spoken against any penal Law whatsoever would bear Action which should be unreasonable wherefore he prayed that Judgment might be stayed Brown contrary the words are actionable because that if it was true that he spoke them he subjected himself to imprisonment by the Statute of 1 Eliz. although not directly yet in default of payment so as there might be corporal damage and to prove it he cited Anne Davies Case 4 Rep. 17. a. where it is said that to say that a woman hath a Bastard will bear Action because that if it were true she was punishable by the Statute of 18 Eliz. Further he said that if the words are not Actionable yet the Action will lie for the special damage which the Plaintiff hath suffered in the Ecclesiastical Court Justice Mallet the words of themselves are not Actionable because that the corporal punishment given by the Statute doth depend upon the non-payment and is not absolute of it self but the Action will lie for the temporal damage and therefore he conceived that the Plaintiff ought to have Judgment Justice Heath that the Plaintiff ought to have Judgment for the pecuniary Mulct is a good cause of Action there being in default of payment a corporal punishment given But here is not only injuria but damnum also which are the foundations of the Action upon the Case and if the words of themselves be not Actionable yet the Action will lie for the damage that the Plaintiff here suffered by the citation in the spiritual Court Bramston Chief Justice doubted it and he conceived it hard that the words should bear Action because as he said the corporal punishment doth meerly depend upon the not payment and upon the same reason words upon every penal Law should bear Action and therefore this being a leading Case he took time to consider of it It was said To say of a man that he had received a Romish Priest was adjudged Actionable and that was agreed because it is Felony At another day the Case was moved again and Justice Mallet was of the same Opinion as before viz. That the words themselves were not actionable but for the special damage that the Action would lie and he said that one said of another That he was a Recusant for which an Action was brought in the Common Pleas and he conceived the Action would not lie Justice Heath was of the same Opinion as before that the words oâ— themselves would bear Actioâ— and
should be punished for it he conceived that there is a difference betwixt an Officer of an inferiour Court which ousts the Common Law of Jurisdiction and one of the four Courts at Westminster for where an Officer justifies an Act done by the command of an Inferiour Court he ought to shew precisely that it was in a Case within their Jurisdiction and he cited 20 H. 7. the Abbot of St. Albâ—rs case Justice Heath contrary the party is servant to the Court and if he have done his duty it should be hard that he should be punished for it and he agreed that there is a difference betwixt the Act of a Constable and a Justice of Peace and the Act of a Servant of a Court for the Servant ought to obey his Master and although it be an inferiour Court yet it is a Court of Record and confirmed by Act of Parliament and all that is confessed by the Demurrer Bramston Chief Justice that the Plea is naught because that it is too general and incertain true it is that it is hard that the Officer should be punished in this case for his obedience to which he is bound and it is as true that the Officer for doing of an act by the command of the Court whether it be just or unjust is excused if it appear that the Court hath Jurisdiction but here it doth not appear that the Court hath Jurisdiction and if the Court had not Jurisdiction then it is clear that the Officer by obeying the Court when they have not Jurisdiction doth subject himself to an Action of false imprisonment as it is in the Case of the Marshalsy in the 10 Rep. but it was adjorned c. The Bishop of Hereford and Okeleys Case 196. THe Bishop of Hereford brought a Writ of Error against Okeley to reverse a Judgment given in the Common Pleas the point was briefly this One under the age of twenty three years is presented to a Benefice Whether the Patron in this case shall have notice or that lapse otherwise shall not incur to the Bishop which is grounded upon the Statute of 13 Eliz. cap. 12. And upon debate by the Counsel of the Plaintiff in the Writ of Error that which was said being upon the general Law of notice nothing moved the Court against the Judgment given in the Common Pleas upon solemn debate as it was said and therefore they gave day to shew better matter or else that Judgment should be affirmed The Reasons of the Judgment in the Common Pleas were two First upon the Proviso of the Statute which says That no Lapse shall incur upon any deprivation ipsâ— facto without notice Second reason was upon the body of the Act which is That admission institution and induction shall be void but speaks nothing of presentation so as the presentation remaining in force the Patron ought to have notice and that was said was the principal reason upon which the Judgment was given and upon the same reasons the Court here viz. Mallet Heath and Bramston Justices held clearly that the notice ought to be given or otherwise that Lapse shall not incur but they agreed that if the Act had avoided the presentation also that in such case the Patron ought to have taken notice at his peril being an avoydance by Statute if the Proviso help it not Mich. 17º of the King in the Common Pleas. 197. A. Said of B. that he kept false weights for which words B. brought an Action upon the case shewed how that he got his living by buying and selling but did not shew of what profession he was and by all the Court viz. Foster Reeve Crawley and Bankes in the Common Pleas the Action will not lie First because he doth not shew of what Trade or profession he was and it is too general to say that he got his living by buying and selling Secondly because although that he had shewed of what Trade he was as that he was a Mercer as in truth he was that yet the words are not actionable because there is nothing shewed to be done with them or that he used them and it can be no scandal if the words do not import an act done by the false weights for he may keep them and yet not use them and he may keep them that another do not use them and the keeping of false weights is presentable in Leet if the party use them otherwise not And where one said of another That he kept a false Bushel by which he did cheat and cousen the poor the same was adjudged actionable that is True and differs from this case for there he said he not only kept them but used them and cheated with them but it is otherwise in our case and this case was compared to Hobarts Reports where one said of another That he kept men which did rob upon the High-way and adjudged that the words were not actionable for he might keep them and not know of it Bankes the action upon the case for words is to recover damages and here it can be no damage First because he doth not shew of what profession he was and Secondly because although he had shewed it yet the words will not bear Action and Judgment was given against the Plaintiff 198. It was moved by Serjeant Wild That depositions taken in the Ecclesiastical Court might be given in evidence in a Trial in this Court and the Court was against it because they were not taken in a Court of Record and they said although the parties were dead yet they ought not to be allowed and by Bankes Chief Justice no depositions ought to be allowed which are not taken in a Court of Record and Foster and Reeve were of Opinion that although the parties would assent to it yet they ought not to be given in evidence against the constant rule in such case Crawley contrary for he said that a writing which by the Law is not Evidence might be admitted as Evidence by the consent of the parties 200. A man was bound to keep a Parish harmless from a Bastard-child and for not performance thereof the Obligee brought Debt upon the Bond the Defendant pleaded that he had saved the Parish harmless and did not shew how the Plaintiff replied and shewed how that the Parish was warned before the Justices of Peace at the Sessions of Peace and was there ordered by Record to pay so much for the keeping of the childe and because the Defendant had not saved him harmless c. The Defendant pleaded Nul tiel Record upon which the Plaintiff did demur And here two things were resolved First that the Plea Nul tiel Record upon an Order at Sessions of Peace is a good Plea because that an Order at the Sessions of Peace is a Record Secondly that notwithstanding Judgment ought to be given for the Plaintiff because the Dâ—fendants bar was not good in that he hath pleaded in the affirmative that he hath saved the Parish
by that to discharge themselves which the Defendant here should lose if the Obligation should stand in force as to him only 8 Rep. 136. Sir Iohn Needhams case If a woman Obligee taketh one of the Obligors to be her Husband the same is a discharge to the other Two commit a trespass the discharge of one is the discharge of both yet it is there joynt or several at the will of the party who releaseth But it may be objected that it is a Casual act here and therefore shall not be so prejudicial to the Plaintiff here To that he answered That that shall not help him because it is his own lachess and default and the same Objection might have been made in Piggots case where the Obligation is altered in a material place by a stranger without the privity of the Obligee and yet there it was resolved that the same shall avoid the deed Besides if the Obligee had delivered the same over to another to keep and it had been eaten with Rats and Mice yet that would not excuse him and by the same reason shall not help the Plaintiff here Matthewsons Case C. 5 Rep. differs much from this case because there the Covenants are several and not joynt as in this Case and therefore if the Covenanâ—ee doth release to one of the covenanters that shall not discharge the others For the Cases of 14 H. 8. and Piggots Case they differ much from our Case for there the covenants or conditions against the Law are void ab initio by the construction of the Law and no alteration as in our case by the Act or default of the party by matter ex post facto and therefore those Covenants or Conditions against the Law cannot vitiaâ—e those which were good and according to Law because they took not any effect at all So if a Monk and another be bound the Bond is void as to the Monk and good as to the other because there is no subsequent alteration by the party but the same is void by construction of law ab initio and upon the same reason stands the Case of the Fine put of the other side For which causes he prayed Judgment for the Defendant Note the Court viz. Foster Reeve Crawley and Bankes Chief Justice did strongly incline that Judgment ought to be given for the Defendant and their reason was That if the Obligee by his Act or own lachess discharge one of the Obligors where they are joyntly and severally bound that the same discharges them all but gave day for the further debating of the Case for that this was the first time it was argued 207. By Justice Foster and Bankes Chief Justice a Trust is not within the Statute of 21 Iac. cap. 16. of Limitations and therefore no lapse of time shall take away remedy in Equity for it but for other Actions which are within the Statute and the time elapsed by the Statute there is no remedy in Equity and that they said was always the difference taken by my Lord Keeper Coventry but Justice Crawley said that he had conferred with the Lord Keeper and that he told him that remedy in Equity was not taken away in other Actions within this Statute 208. It was said by the whole Court that they never grant an Attachment without an Affidavit in writing 209. The Case before of the warrant of Attorney was betwixt Firburne and Cruse and was entred Trinit 17 Car. And now it was resolved upon reading of Presidents in Court that no warrant of Attorney shall be made or filed because that it is an error and not helped being after judgment in Nihil dicit that none of the presidents came to our case The greatest part of presidents were these viz. the first was 1 Car. Taylor against Thellwell the same appeared to be upon demurrer and no Judgment given Another was Mich. 3 Car. Peasgrove against Brooke and in that Case it did not appear that any Writ of Error was brought Another was Paseh 5. Car. Tayler against Sands Another Hill 6. Car. Smith against Bland in that it was conceived to be amendment only and it was agreed for Law that where there was a warrant of Attorney it might be amended for any defect in it as where there is a misprision of the name or the like as it is resolved Br. amendment 85. and so is 1 and 2 Phil. and Mar. Dyer 105. pl. 6. expresly where Alicia for Elizabetha in the warrant of Attorney was amended and that after a Writ of Error brought by construction of the Statute of 8 H. 6. and so is 9 E. 4. Br. amendment 47. And Justice Reeve said it cannot appear to us by any of the said Presidents whether there was a warrant of Attorney or not and perhaps upon examination it might appear to the Judges that there was a warrant of Attorny which is helped by the Statute of 8 H. 6. and that might be the reason which caused them to order that it should be filed but that doth not appear to us and therefore the presidents were not to the purpose Besides it doth not appear by any of them whether judgment were given or not and before judgment it may be amended as the Book is 9 E. 4. 14. br amendment 47. Besides in one of them the Plaintiff did neglect to remove the Record which is the very case in Dyer and that was the reason that the warrant of Attorney was filed but in this Case there appearing to be no warrant of Attorney it is not helped by the Statute of 8 H. 6. and after a Judgment and that upon Nihil dicit which is not holpen by the Statute of 18 Eliz and there is no Lachess in removing of the Record by the Plaintiff and for these reasons the whole Court was against the Defendant in the Writ of Error that it was Error and therefore ought not to be amended Note that in this Case it was moved that the warrant of Attorney might be filed in this Court after Error brought in the Kings Bench but observe that if it had been a thing amendable that had been no impediment to it for things amendable before Error brought are amendable after and if the inferior Court do not amend them the superior may and so it is adjudged 8 Rep. 162. in Blackmâ—res case and so is the Case express in the point 1 and 2 Phil. and Mar. Dyer 105. pl. 16. Where a warrant of Attorney was amended in Banco after Error brought and the Record certified This is only my own observation upon the Cale Mich. 17º Car. in the Kings Bench. 210. AN information was brought for the King against Edgerley Carrier of Oxford because that where by the custom of England no Carrier or other person ought to carry above two thousand weight and that with a Waggon having but two wheels and but four horses that the Defendant had used for the space of a year last past to drive Quoddam gâ—statorium
Common Law there notwithstanding he shall recover costs also So in our Case these being Acts of Creation which give remedy where there was no remedy before shall be taken strictly according to the Letter and shall not extend to such penalties as in our case And upon this difference he cited the Cases in Pilfords case and especially the Case upon the Statute of 5 E. 6. of Ingrossers the Plaintiff shall not recover costs but only the penalty given by the Statute grounded upon 37 H. 6. 10. I agree That there be many Presidents in the Common 〈◊〉 That damages have been allowed in our very Case but that is the use of the Clerks and passed sub silentio without any solemn debate or controversie Vide Greislies case and the first Case of the Book of Entries Presidents and Judgments in this Court Pasch. 33 Eliz. Rot. 292. Halesworth against Chaffely A Judgment of the Common Pleas was reversed for this very point M. 36 Eliz. Ruddal and Wilds Case M. 44 45 Eliz. Rot. 22. Shepwiths Case Avowry for relief a stronger case Judgment was reversed because damages was assessed Hill 14 Iac. Rot. 471. Leader against Standwell in a Replevin Avowry was made for an Amercement in a Leet and found â—or the Dâ—fendant and damages assessed But the Entry upon the Record was thus Super quo nullo habito respectu c. The Plaintiff was discharged of the damages because nulla damna debent esse adjudicanda per Legem terrae but he shall have his costs But it was objected by Justice Crook That by the Statute of 4 Iac. c. 3. which giveth costs and damages to the Defendant in certain Actions there specified where the Plaintiff shall recover damages and that where the Plaintiff is Non-suit or verdict pass against him That Demurrer hath been construed to be within that Statute Notwithstanding that it is an Act of Creation I agree that and answer that Demurrer is within that Statute and the mischief of it but it is not so in our Case for in our Case there is no such mischief For there is no colour to extend it beyond the words of the Statute For which cause I conclude that the Judgment in this case ought to be reversed 65. A Clerk of the Court dwelling in London was chosen Churchwarden and prayed a Writ of Priviledge which was granted And it was agreed by the whole Court That for all Offices which require his personal and continual attendance as Churchwarden Constable and the like he may have his Priviledge but for Offices which may be executed by Deputy and do not require attendance as Recorder and the like from which the Justices themselves shall not be exempt for them he shall not have his Priviledge And where he hath his Priviledge for the not obeying thereof an Attachment lieth Swift against Heirs in Debt upon the Statute of 2 E. 6. for setting out of Tythes 66. THe doubt in this Case did arise upon two several Indentures found by special verdict which were made by the Vicar and Subchauntors Corrols of Lichfield one 2 E. 6. the other 2 3 Phil. Mar. The Question upon the Indenture of 2 E. 6. was Whether the Grant upon the Habendum be a grant of a Freehold to begin at a day to come or not The chief Justice Justice Crooke and Justice Barckley were clear of Opinion That it was a grant of a Freehold to begin at a day to come And for that the Case is thus In the Indenture of 2 E. 6. there is a recital of a former Lease for years And by this Indenture in 2 E. 6. another Lease was to begin after the first Lease determined the remainder in Fee to another And upon that the three Justices before were clear in their Judgments That it was a Grant of Freehold to begin at a day to come which without doubt is void 8 H. 7. 39 H. 6. and Bucklers case 3 Rep. And in 8 H. 7. the difference is taken betwixt the grant of a Rent in esse and Rent de novo A Rent de novo may be granted in futuro but not a Rent which is in being But Justice Iones in this Case was of Opinion That here is not any grant of a Freehold to begin at a day to come because in this case the Lease doth begin presently because the Lease recited is not found by the Jury and therefore now it is all one as if there had been no Lease at all contrary in the case of the King because it passeth a good estate of Inheritance to the Grantee And therefore if I make a Lease for years unto a man after the expiration of such a Lease where in truth there is no such Lease in being the Lease shall begin presently The Question upon the Indenture of 2 3 P. Mar. was no more but this The Vicar and Subchauntors of Lichfield made a Grant of all their Tithes in Chesterton and name them in certain and in specie as Tithe-wool Tithe Geese Pigs Swans and the like and that in a distinct clause with especial Exception of four certain things After which came this clause All which were in the Tenure of Margaret Pâ—toe And the Jury sound that none of these Tithes were in hâ—r Tenure And whether that Grant were void or not was the Question And resolved by the whole Court nullo contradicente That the Grant notwithstanding this fallâ— reciâ—al was good For these reasons But first it was resolved That where they grant all their Tithes in Chesterton that it is a good grant and hath sufficient and convenient certainty 13 E. 4. and â—â—â—lands Case There are two Generalities 1. Absolute 2. Genâ—â—al in particular â—o here And in our Case it is as câ—râ—ain that demand in an Action may be for them by the name of all their Tithes in Chesterton So in the like manner an Action of Ejectione firme will lie For an Ejectione firme will 〈◊〉 for Tithes as it hath been adjudged here If the King grant all his Lands it is altogether incertain and void but if the King grant all his Lands in Dale or which came to him by the dissolution of such an Abby it is good because it is a generalâ—y in particular And it was agreed that convenient certainty is sufficient And therefore it was said by Justice Iones That if I grant all my Rents in Dale which I have of the part of my Mother that he conceives the same to be good The first reason wherefore this grant shall be good notwithstanding the false recital was this because the words here All which c. are not words of denotation or restriction but of suggestion or affirmation and therefore shall not make void the Grant And here the difference was taken between the Case of a common person and of the King Suggestion which is false in the Case of the King makes the Patent void but contrary in the case of a common person And
be at one time customary and go according to the custom and at another guildable And the whole Court Crooke only being absent were against him that the custom was good Hicks against Webbe 83. IN Trespass for a way the Defendant did justifie and said that he had a way not only ire equitare averia sua fugare but also carrucis carreragiis carriare The Plaintiff traversed it absque hoc that he had a way not only ire equitare c. in the words aforesaid and thereupon they were at issue and found for the Plaintiff Glynn moved in arrest of Judgment that the Issue was ill joyned because it was not a direct affirmative but by inducement only And the whole Court was against him And Justice Iones said That if I say that not only Mr. Glynn hath been at such a place but also Mr. Iones without doubt it is a good affirmative that both have been there But they all agreed that the pleading was more elegant than formal 84. In the Case betwixt Brooke and Boothe Justice Barckley said that it is a Rule That if there be two things alledged and one of necessity ought to be alledged and he relies on-only upon the other it is no double Plea As if a man plead a Feoffment with Warranty and relieth upon the Warranty it is not double 85. Justice Barckley said That the Court of the Exchequer they may make a Lease for three Lives by the Exchequer-Seal Clarke against Spurden 86. IN a Writ of Error to reverse a Judgment given in the Court of Common Pleas the case was shortly thus A. wife of I.S. intestate promiseth to B. to whom Adnistration was committed that if he shall relinquish the Administration at the request of C. and suffer A. to Administer that A. will discharge B. of two Bonds In Assumpsit brought by B. in the common Pleas he alledged that he did renounce Administration and suffered A. to Administer and that A. had not discharged him of the two Bonds And it was found for the Plaintiff And thereupon Error was brought because B. doth not shew that he did renounce the Administration at the request of C. And Rolls for the Plaintiff in the writ of Error did assign the same for Error Justice Barckley all the other Justices being absent held that it was Error for consideration is a thing meritorious and all ought to be performed as well the request on the part of C. as the permission of the part of B. which ought to be shewed For perhaps B. was compelled to relinquish it in the Ecclesiastical Court as it might be for of right the wife ought to Administer And therefore it ought to have been averred that it was at the request of C. And therefore if it had been that he should renounce at the charge of C. it ought to be averred that it was at the charge of C. And it was adjourned 87. A man Libelled in the Spiritual Court for Tithes for barren cattle and it was moved for a Prohibition upon this suggestion viz. That he had not other cattle than those which he bred for the Plough and Pale and thereupon Barckley being alone there granted a Prohibition And the same Parson also Libelled for Tithes of Conies and for that also he granted a Prohibition for they are not Titheable if not by custome And here Barckley said That if Land be Titheable and the Tenant doth not plough it and manure it yet the Parson may sue for Tithes in the Ecclesiastical Court North against Musgrave 88. IN Debt upon the Statute of 1 2 Phil. Mar. c. 12. the words of which Statute are That no man shall take for keeping in pound impounding or poundage of any manner of distress above the sum of four pence upon pain of forfeiture of five pounds to be paid to the party grieved And the Plaintiff shewed that his Cattle were distreyned and impounded and that the Defendant took of him ten pence for the poundage And thereupon the Plaintiff brought an Action for the penalty of five pounds and found for the Plaintiff And the Judgment was That he should recover the five pounds and damages ultra praeter the mony taken for the poundage And thereupon a Writ of Error was brought and three things assigned for Error First because the Action was brought for the penalty of five pounds only and not for the six pence which was taken above the allowance of the Statute which ought not to be divided Which was answered by Justice Barckley all the other Justices being absent That notwithstanding it is good for true it is that he cannot bring his Action for fifty shillings part of the penalty because it is entire but here are two several penalties and he may divide and disjoyn them if he will or he may wave the six pence For quilibet potest renunciare juri pro se introducto The second was That he doth not demand that which is ultra praeter the four pence given by the Statute and yet the Judgment is given for that which is not good To which Justice Barckley said That the Judgment was good For no judgment is given for that which is ultra praeter the four pence but only for the four pounds because he doth not demand it And we cannot judge the Judgment to be erroneous by Implication The third Objection was That Costs and Damages are given which ought not to be upon a penal Law For he ought not to have more than the Statute giveth and therefore upon the Statute of Perjury no Costs are given so upon the Statute of Gloucester of Wast the Plaintiff shall recover no more than the treble value But Rolls who was on the contrary said That there are many presidents in the common Pleas that Damages have been given upon this Statute But Barckley and Iones who afterwards came and seemed to agree with Justice Barckley in the whole was against it That no Damages ought to be given and desired that the Presidents might be viewed But here Rolls offered this difference Where the penalty given by the Statute is certain as here upon which he may bring Debt there he shall recover Damages but where the penalty is uncertain as upon the Statute of Gloucester for treble damages the Statute which giveth the treble value and the like there because it is incertain he shall have no more Barckley asked Mr. Hoddesdon If the Informer should recover Damages And he and Keeling Clerk of the Crown answered No but said Damages should be given against him and it was adjourned 89. Skinner Libelled in the Ecclesiastical Court for thâ— Tithes of Roots of a Coppice rooted up And Porter prayed Prohibition And it was said by Iones and Barckley Justiceâ—â— no other Justice being present That if cause were not shewed before such a day that a Prohibition should be awarded because it is ad exheredationem and utter destruction of 〈◊〉 And the Opinion was that the
that it was his own horse but quendam equum and for that reason by the whole Court the Judgment was affirmed More of the Case of Leake against Daweâ— 108. SErjeant Mallet for the Plaintiff That the Scire faâ—â—â—s is good notwithstanding the exceptions for these reasons First because it is not a Declaration but a Writ which is not drawn by Counsel and it is to declare the matter briefly but if it were in a Declaration yet I hold it good because he saith that it was modo adhuc seisitus existit which as I conceive helps it and besides it is not his title but the title of his Adversary which he is not bound to plead so exactly as his own title See for that 14 Eliz. Dyer 204. 2 Car. beswixt Green and Moody in Audita Querela he shewed that there was Debt brought upon a Lease for years to begin at a day to come and did not shew whether the Lessee entred before the day or not so as he might be a disseisor and yet notwithstanding it being in Audita querela which is an equitable Action it is good Hil. 1 Iac. betwixt Blackston and Martin in this Court a Scire facias was brought to avoid a Statute and it was shewed that the Defendant was Tenant but doth not shew how Tenant but it said ad grave damnum which could not be if he were not lawful Tenant and therefore adjudged good notwithstanding that general allegation See new Book of Entries Mollins case 98 99. a strong case to this purpose Besides he said That here issue was taken upon another point Whether he bargained or not and therefore he conceived in this Scire facias that it is not hâ—râ— needful to shew the Inrolment and for these reasons prayed Judgment for the Plantiff Serjeant Wild for the Defendant That the shewing of the Inrolment is not helped by the Issue joyned being matter of substance for he saith that virtute cujus and of the Statute of 27 H. 8. of uses that the Defendant was seised and we ought not to intend an Estate by any other means or seisin than himself hath alledged And thâ—refore it ought to be adjudged upon his own pleading whether the Defendant hath any estate without inrolment or entry by force of the Statute of Uses And I conceive he hath not True it is that all circumstances ought not to be pleaded but the substance viz. the Inrolment and therefore it ought to be pleaded as Fulmerston and Stewards case is in the Commentaries and 2 Eliz. Dyer And no estate passeth without Inrolment not a Fee-simple for then there ought to be Inrolment according to the Statute and no estate at will can pass without Entry for that is as opposit ' in objecto that a man shall be tenant at will against his will for his Entry proves his intent to hold at will For Littleton saith By force whereof he is possessed so that there ought to be possession to make an Estate at will And in case of a Lease for years although it be true that he is a Lessee for years to many purposes before Entry yet an Entry ought to be pleaded And Dyer 14. is non habuit non occupavit is no good plea in a Lease for years contrary in the case in a Lease at will which is a strong proof that he is not Lessee at will before entry 3 Iac. betwixt Bellingham and Fitzherbert 5 El. Dyer 10 Eliz. Mockets case Mich. 15 Iac. betwixt Coventry and Stacie resolved that a release to the Bargainee before Inrolment is not good And by consequence he hath not an estate at will before Inrolment or Entry made for if he had the Release should be good 18 H. 8. the Lord Lovells case that no estate at Will Lastly Parrolls font plea and the case of a man shall not be taken to be otherwise than he hath pleaded it and he having pleaded that virtute cujus and of the Statute of Uses that the Defendant was seised he shall be concluded thereby 5 H. 7. A man shewed that another licenced him to enter into his land and occupy for a year it is not good but he ought to plead it as a Lease Besides the virtute cujus is not traversable as the 11 Rep. Pridle and Nappers case is Rolls accord and he said That if it shall be construed That the Conusee shall have an estate by Disseisin the Plaintiff ought to plead it that the Defendant was seised by way of disseisin And where it was objected That this is a Writ and not a Declaration he answered It is a Writ and Declaration also and therefore he ought to declare his case at large and the defect of the Conveyance viz. the want of Inrolment is not supplied by the virtute cujus And he having made that his Title you ought to judge upon it and not otherwise But the whole Court viz. Bramston Ch. Just. Crooke Iones and Barckley Justices That the Scire facias was good for it was said that the Defendant perquisivit sibi heredibus suis and concludes virtute cujus and of the Statute of Uses he was seised which is a good averment that he hath a Fee and it was not material how he hath it and he need not shew his Title so fully being a stranger to it And this being an equitable Action if the Court upon this Writ shall conceive sufficient matter upon which the Plaintiff may bring his Action it is good and the Court ought to give Judgment for him for being but matter of form it is not material unless a Demurrer had been special upon it And wheresoever there is damnification there the Court ought to give Judgment for the Plaintiff notwithstanding a defect of form in the Writ And Barckley said That if a man be seised of Bl. acre and Wh. acre and acknowledgeth a Statute and afterwards makes a Lease for years of Wh. acre the remainder over in Fee then the Conusee purchase Bl. acre and extendeth the land of the Lessee for years he held that he in the remainder should have an Audita querela or a Scire facias for the damnification which came to his interest And he held that he who had but interesse termini should have an Audita querela That one jointly only might have an Audita querela and that the death of one of them should not abate the Writ And he held that Cestui que use before the Statute might have an Audita querela all which proves it to be but an equitable Action upon which the Law doth not look with so strict an eye as upon other Actions And as to the Objection which was made by Râ—lls that he ought to shew That the Conusee had an estate by disseisin Iones was against that for that no man is bound to betray his Title And for these reasons it was adjudgâ—d by the whole Court That the Judgment should be affirmâ—d 109. A Writ of
Error was brought to reverse a Judgment given in the Common pleas and after a Certiorari and Errorâ— assigned they in the Common pleas did amend the Record And by the whole Court Crooke only absent they cannot do it for after a transmittitur they have not the Record before them And Barckley said That the difference stands betwixt the Common Pleas and the Kings Bench and betwixt the Kings Bench and the Exchequer For the Record remains always in this Court notwithstanding a Writ of Error brought in the Exchequer-chamber and therefore we may amend after Wherefore the Court said that if the thing were amendable that they would amend it But the Court of Common Pleas cannot Sewel against Reignalls 110. THe case was thus Husband and Wise did joyn in an Action of Debt in the right of the Wife as Administratrix to I. S. And the Defendant being arrested at their suit did promise to the Husband in consideration that the Husband would suffer him to go at large that he would give him so much The husband and wise did joyn in an Action upon the Case upon the promise made to the husband alone And upon Non assumpsit pleaded it was found for the Plaintiff Porter moved in arrest of Judgment that the promise being made to the husband only that they ought not to joyn in the Action Barckley the Action is well brought for the husband is Administrator in the right of the wife for otherwise the consideration were not good For if he were not Administrator then he could not suffer him to go at large and then if he be Administrator in the right of his wife the promise which is made to the husband is in judgment of Law also made to the wise and they ought to joyn in the Action But Crooke Iones and Bramston Chief Justice contrary That â—â—e Action will not lie because the promise is of a collateral thing and not touching the duty due to the wise as Executrix for then perhaps it would have been otherwise And they said against the Opinion of Barckley that this sum received should not be assets in their hand And Bramston said that it is not like the case where a man promiseth to the father of Iane Gappe in consideration of a marriage to be had betwixt his daughter and him that he would make her a Joynture there as well the daughter as the father may bring the Action And it was adjourned 111. A Parson Libelled in the Ecclesiastical Court for Tithes And after Sentence Rolls moved for a Prohibition upon the Suggestion of a Modus decimandi but it was not granted because too late But Rolls took this difference and said that so had been the Opinion of the Court where the party pleads the Modus and where not for if he plead it there notwithstanding a Sentence Prohibition hath been granted contrary where he doth not plead it But notwithstanding the Court refused to grant a Prohibition 112. The Parishioners of a Parish together with the Parson sued the Churchwardens in the Ecclesiastical Court to render Accompt and recovered against them and Costs taxed Afterwards the Parson released the Costs and notwithstanding the Parishioners sued for the Costs and thereupon a Prohibition was prayed because that the Costs are joyntly assessed and the release of one would bar the others But the Opinion of the whole Court that a Prohibition shall not be granted For the costs recovered there an Action might be sued in the Ecclesiastical Court and therefore although that in our Law the release of one shall bar the others yet the Action being sued there and they having conusance thereof the same is directed according to their Law And therefore it hath been adjudged that if the husband and wise sue in the Ecclesiastical Court for the defamation of the wife and Sentence be given for them and Costs taxed and afterwards the husband releasâ—th the costs in the suit commenced in the Ecclesiastical Court it shall not bar the Wife for the reasons given before Brooke and Booth against Woodward Administrator of John Lower 113. IN Debt upon a Bond the Defendant prayed Oyer of the Condition which was entred in haec venba The Condition of this Obligation is such That if the Obligor did deliver to the Plaintiffs two hundred weight of Hops in consideration of ten pounds already paid and fifty five pound to be paid at the delivery and the Plaintiffs to chuse them out of twenty four Bags of the Obligors own growing and to be delivered at F. at a day certain Provided that if the Plaintiffs should dislike their Bargain that then they should lose their ten pounds and if they liked they should give ten pounds more c. Upon Oyer of which the Defendant pleaded that the Plaintiffs non elegerunt And upon that the Plaintiffs did Demur in Law and shewed for special cause of Demurrer that the Plea was double Withrington for the Plaintiffs that the Plea is double in that the Defendant hath alledged that he was ready and that the Plaintiffs non elegerunt which are both issuable pleas and each of them of it self admitting no request of the part of the Defendant requisite is sufficient in bar of the Action Besides he conceived as this case is that the first act ought to be done by the Defendant for he ought to shew the bags and request the Plaintiffs to make election And he compared it to the case in 44 E. 3. 43. and also to Hawlins case 5 Rep. 22. Farther he conceived that the Defendant ought to have alledged that he had twenty four bags and twenty four bags of his own growing for if he have not them it was impossible for the Plaintiffs to make choice and by consequence the condition broken Twisden contrary That the plea is not double for the alledging himself to be ready was but inducement to the subsequent matter quod non elegerunt And he relied only upon their election and in proof thereof he relied upon the Books 1 H 7. 16. and 24 E. 3. 19. Farther here no notice is requisite not he ought not to aver that he had them for he being bound to deliver them he is estopt to say that he hath them not 19 Eliz. Dyer 314. and 3 Eliz. Dyer As to the shewing of them we ought not to do it for the Plaintiffs ought to do the first Act viz. Request the Defendant to shew thâ— bags for them to make choice of And the whole Court strongly enclined against the Plaintiffs for the reasons before given and they advised them to waive the Demurrer and plead de novo which they did Thorps Case 114. IN an Action upon the Case upon Assumpsit it was agreed by the whole Court That where there is a mutual promise viz. A. promiseth to B. that he will do such a thing and B. promiseth to A. that in consideration thereof that he will do another thing If A. bring an Action against B. and alledge a
it then a Prohibition shall be granted And note that it was said by Bankes Chief Justice that before the Statute of 1 Eliz. the Ecclesiastical Court might punish any person for not coming to Church pro reformatione morum salute animae 163. Where there are several Modus alledged there several Prohibitions shall be granted but where divers are sued joyntly and they alledge one Modus only there they shall have but one Prohibition by Reeve and Foster Justices the others being absent Pasch. 15º Car in the Kings Bench. Edwards and Rogers Case 164. THe Case was thus Tenant for life the Reversion to an Ideot an Unkle heir apparent of the Ideot levied a Fine and died Tenant for life died the Ideot died the only Question was Whether the Issue of the Unkle who levied the Fine should be barred or not Iones that it should his chief reason was because the Son must make his conveyance by the Father and as to him he is barred As in a Writ of Right he ought of necessity to name his Father and that by way of Title so here But Crooke and Barckley contrary and their reason was because that here the Issue of the Unkle doth not claim in the right line but in the collateral Secondly because the naming of the father here is not by way of Title but by way of pedigree only Note that Serjeant Rolls in the Argument of the Serjeants case which was the very point said that this case was adjudged according to the Opinions of Crooke and Barckley viz. that the fine should not bar the Issue The Serjeants Case aforesaid was Trin. 17 Car. 165. Payne the elder and Payne the younger were bound joyntly and severally in an Obligation to Dennis who afterwards brought Debt upon the Bond against both And after appearance Dennis entred into a Retraxit against Payne the younger and whether this were a discharge of the elder also was the Question And this Term it was argued by Maynard for the Defendant that it was a discharge of Payne the elder also for it doth amount to a Release and it is clear that a release to one shall discharge both Rolls contrary that it goeth only by way of Estoppel and not as a release and therefore shall not bar Barckley Justice that it amounts to a Release and therefore shall discharge both 7 E. 4. Hickmots case in the 7 Rep. the Plaintiff shall not have judgment where he hath no cause of Action And here by his Retraxit he hath confessed that he hath no cause of Action and therefore he shall not have judgment Further a Retraxit is not an Estoppel but a Bar of the Action besides here he hath altered the Deed and it is not joynt as it was before like as where he interlines it or the like there the Deed is altered by his own act and therefore the other shall take advantage of it Crook Justice contrary for it is not a Release but quasi a Release and if the Obligâ—e sueth one and covenanteth with him that he will not further sue him the same is in the nature of a Release and yet the other shall not take advantage of it So in this case 21 H. 6. there ought to be an actual Release of which the other shall take advantage and therefore in this Case because it is but in the nature of an Estoppel the other shall not take advantage of it Sprigge against Rawlenson 166. IN a Writ of Error to reverse a Judgment given in the Common Pleas in an Ejectione firme the Case was R. brought an Ejectione firme against S. and declared of an Ejectment de uno mesuagio uno repositorio And the Jury found for the Plaintiff and assessâ—d damages entire upon which a Writ of Error was brought here and the Error which was largely debated was that Rep. sitâ—rium which was here put for a Ware-house is a word uncertain and of divers significations as appeareth by the Dictionary And therefore an Ejectione firme de uno repositorio is not good and by consequence the damages which are joyntly assessed are ill assessed And in an Ejectione firme seism shall be given by the Sheriff upon a Recovery as in a Precipe quod reddat and therefore the Ejectment ought to be of a thing certain of which the Sheriff may know how to deliver seifin otherwise it is not good Barckley and Crook Justices were that the Judgment should be affirmed and that it was certain enough but Iones and Bramston Chief Justice contrary that it was utterly uncertain For that is Repositorium in which a man reposeth any thing and an Ejectione firme de uno tenemento is not good because there are several â—enements So here because there are several Repositories and the Sheriff cannot tradere possessionem and afterwards Barckley released his Opinion and judgment was given that the Judgment given in the Common Pleas should be reversed Trinit 17º Car ' in the Common Pleas. 167. A Man having a Legacie devised unto him out of a Lease for years which Indenture oâ— Lease was in the hands of a Stranger The Legatee suâ—d the Executors in the Spiritual Court to assent to the Legacie And Evars Serjeant prayed a Prohibition because they order that the Lease should be brought into Court which they ought not to have done being in the hands of a stranger But the Prohibition was denied by the whole Court for they may make an executor assent to a Legacie out of a Lease and therefore may order that although that the Lease be in the hand of a third person that it shall be brought in to execute it For the Order although it be general binds only the Defendant and it was agreed by the Court that assets or not assets is triable by them Juxon against Andrewes and others 168. IN an Ejectione firme the Defendants pleaded not guilty the Jury found them not guilty for part and guilty in tanto unius messuagii in occupatione c. quantum stat super ripam and whether this Verdict were sufficiently certain so as the Court might give judgment upon it and execution thereupon might be had was the question And by Whitfield Serjeant the Verdict is certain enough it hath been adjudged that where the Jury find the defendant guilty of one Acre parcel of a Mannor that it was good so of the moiety of a Mannor which is as uncertain as in this case And it is as certain as if they had said So many feet in length and so many in breadth for if the certainty appeareth upon the view of the Sheriff who is to deliver the possession it sufficeth and Clark Serjeant who was of the same side said that it is a Rule in Law Quod certum est quod certum reddi potest and this may be reduced to certainty upon the view of the Sheriff and therefore it is certain enough Besides it is the finding of the Jury who are lay gents M. 8. Iac. in
it turns the Avowry into a Justification in our Case so as you shall not make us Trespassers but that we may well justifie to save our damages Crawley Justice that the Avowry is turned into a Justification and that there is sufficient substance in the Plea to answer the unjust taking the distress Justice Reeve that it is good by way of Avowry for the distress being lawfully taken at the time it shall not take away his avwry therefore he shall have Retorn for that was as a gage for the rent and therefore differs from the other Cases Justice Foster put this Case at the Common Law Distress was taken and before avowry Tenant for life died Whether he shall avow or justifie But all agreed that at the least the Avowry is turned into a Justification but it was adjourned 179. The Court demanded of the Protonotharies Whether a man might make a new assignment to a special Bar and they said no but to a common Bar only viz. that the Trespass if any were was in Bl. Acre there ought to be a new assignment by the Plaintiff but Reeve and Crawley Justices the other being absent held clearly that the Plaintiff might make a new assignment to a special Bar and further they said that the Plaintiff if he would might trise the Desendant upon his Plea but we will not suffer him to do so because that his Plea is meerly to make the Plaintiff to shew the place certain in his Replication in which the Trespass was done 180. The Disseisee levieth a Fine by Reeve and Crawley Justices it shall not give right to the Disseisor because that this Fine shall enure only by way of Estoppel and Estoppels bind only privies to them and not a stranger and therefore the Disseisor here shall not take benefit of it and therefore they did conceive the 2 Rep. 56. a. to be no Law Vid. 3 Rep. 90. a 6 Rep. 70. a. 181. Serjeant Callis prayed a Prohibition to the Court of Requests for cause of priority of Suit but by Foster and Crawley Justices the other being absent priority of Suit was nothing the Bill being exhibited there before Judgment given in this Court 182. The Case of White and Grubbe before being moved again it was said in this case by Reeve and Foster Justices that where a man is indebted unto another for divers wares and the debt is superannuated according to the Statute of 21 Iac. cap. 16. and afterwards they account together and the party found to be indebted unto the other party in so much mony for such wares in that Case although that the party were without remedy before yet now he may have debt upon accompt because that now he is not bound to shew the particulars but it is sufficient to say that the Defendant was indebted to the Plaintiff upon accompt pro diversis mercimoniis c. 183. A Prohibition was prayed unto the Council of the Marches of Wales and the Case was thus A man being posfessed of certain goods devised them by his will unto his wife for her life and after her decease to I. S. and died I. S. in the life of the wife did commence Suit in the Court of Equity there to secure his Interest in Remainder and thereupon this Prohibition was prayed And the Justices viz. Banks Chief Justice Crawley Foster Reeve being absent upon consideration of the point before them did grant a Prohibition and the reason was because the devise in the remainder of goods was void and therefore no remedy in equity for Aequitas sequitu◠legem And the Chief Justice took the difference as is in 37 H. 6. 30. Br. Devise 13. and Com. Welkden Elkingtons Case betwixt the devise of the use and occupation of goods and the devise of goods themselves For where the goods themselves are devised there can be no Remainder over otherwise where the use or occupation only is devised It is true that heir looms shall descend but that is by custome and continuance of them and also it is true that the devise of the use and occupation of Land is a devise of the land it self but not so in case of goods for one may have the occupation of the goods and another the Interest and so it is where a man pawns goods and the like For which cause the Court all agreed that a Prohibition should be awarded Trin. 17º Car. in the Kings Bench. 184. A Man was sued in London according to the custom there for calling a woman Whore upon which a Habeas corpus was brought in this Court and notwithstanding Oxfords case in the 4 Rep. 18. a. which is against it a Procedendo was granted and it was said by Serjeant Pheasant who was for the Procedendo and so agreed by Bramston Chief Justice and Justice Malle◠That of late times there have been many Procedendo's granted in the like case in this Court 185. An Orphan of London did exhibite a Bill in the Court of Requests against another for discovery of part of his estate And Serjeant Pheasant of Counsel with the Defendant came into this Court and Prayed a Prohibition upon the custom of London That Orphans ought to sue in the Court of Orphans in London but the whole Court which were then present viz. Chief Justice Bramston Heath and Mallet Justices were against it because that although the Orphan had the Priviledge to sue there yet if he conceive it more secure and better for him to sue in the Court of Requests then he may waive his priviledge of suing in the Court of Orphans and sue in the Court of Requests for quilibet potest renunciare juri pro se intraducto c. and Heath said that he always conceived the Law against the Case of Orphans 5 Rep. 73. b. But which is stronger in this Case the Court of Orphans did consent to the Suit in the Court of Requests and therefore there is no reason that the Defendant should compel the Infant to sue there wherefore they would not grant a Prohibition but gave day until Mich. Term to the Defendants Counsel to speak further to the matter if they could Trin. 17º Car. in the Common Pleas. Dewel against Mason 186. IN an Action upon the Case upon an Award the case was this The Award was that the Defendant should pay to the Plaintiff eight pound or three pound and Costs of suit in an Action of Trespass betwixt the Plaintiff and Defendant as appears by a note under the Plaintiffs Attorneys hand ad libitum defendentis c. And the Plaintiff doth not aver that a note was delivered by the Attorney of the Plaintiff to the Defendant and the Defendant pleaded Non assumpsit and it was found for the Plaintiff and it was moved in arrest of Judgment for the reason given before Rolls contrary that there needs no averment and he said it was Wilmots case adjudged in this Court Hill 15 Car. where the Case was that the Defendant should
â—e conceived That if a man speak such words of another that if they were true would make him liable to a pecuniary or corporal punishment that they would bear an Action and here the Plaintiff was endamaged and therefore without question they will bear an Action Bramston Chief Justice as before also That the words are not Actionable neither of themselves nor for the damage not of themselves for no words which subject a man to a pecuniary Mulct if they were true either at the Common Law or by the Statute will bear an Action For by the same reason to say that a man hath erected a Cottage or to say that a man hath committed a Riot would bear Action 37 Eliz. in the Common Pleas. One said of another That he did assault me and took away my Purse from me and upon Not Guilty pleaded it was found for the Plaintiff and Judgment was stayed because he might take his purse from him and yet be but a Trespasser So as it appeareth that words ought to have a favourable construction to avoid multiplicity of Suits and if these words would bear an Action by the same reason words spoken against every penal Law should bear Action which against the reason given before should be a means to increase Suits And he took it for a rule If the words import scandal of themselves by which damage may accrue then the words will bear action without damage otherwise not and therefore the damage here shall not make the words Actionable which of themselves are not actionable as I conceive they are not Besides by this means the Act of a third person should prejudice me which is against reason as here the Act of the Ordinary by the Citation and damage thereupon accrued which perhaps might be ex officio only for which cause he conceived that Judgment should be stayed but because there were two Judges against one Judgment was given for the Plaintiff Mich. 17º of the King in the Common Pleas. 192. BAine brought an Action upon the Case against for these words viz. That he kept a false Bushel by which he did cheat and cosen the poor he said in his Declaration That he was a Farmor of certain lands and used to sow those lands and to sell the Corn growing on them and thereby per majorem partem used to maintain himself and his family and that those words were spoken to certain persons who used to buy of him and that by reason of those words that he had lost their custom the parties were at issue upon the words and found for the Plaintiff and it was moved by Serjeant Gotbold in arrest of Judgment that the words were not actionable because that the Plaintiff doth not alledge that he kept the false Bushel knowing the same to be a false Bushel for if he did not know it to be a false Bushel he was not punishable and by consequence no Action will lie and compared it to the case Where a man keeps a Dog that useth to worry sheep but he doth not know of it no Action lieth against him for it but yet notwithstanding Bankes chief Justice and Crawley were of Opinion that the words were Actionable for of necessity it ought to be taken that he kept the Bushel knowingly for otherwise it is no cousenage and here being special damage alledged which was the loss of his custom as he had pleaded it the maintenance of his livelihood they hold the words clearly actionable gave Judgment accordingly Note the other Judges were in Parliament 193. Doctor Brownlow brought an Action upon the case for words against 〈◊〉 spoken of him as a Physitian which words were agreed to be Actionable but yet Serjeant Gotbold conceived that although that the words were actionable that the Plaintiff had not well intitled himself to his Action because although that he said that he is in Medicinis Doctor yet because he doth not shew that he was licensâ—d by the Colledge of Physitians in London or that he was a Grâ—dâ—ate of the Universities according to the Statute of 14. H. 8. cap. 5. that therefore the action will not lie see Doctor Bâ—unchams case 8 Rep. 113. â— where he shewed the Statute aâ—orâ—said and pleaded it accordingly that he was a Graduate of the University of Cambridge wherefore he prayed that Judgment might be stayed Bankes Chief Justice and Crawley doubted whether the Act were a general Act or not for if it were a particular Act he ought to have pleaded it otherwise that they could not take notice of it but upon reading of the Statute in Court they agreed that it was a general Act wherefore they gave day to the party to maintain his Plea 194. By Bankes Chief Justice upon an Elegit there needs no Liberate otherwise upon a Statute and note the Elegit doth except Averia Corucae Dye and Olives Case 195. IN an Action of false Imprisonment the Defendant shewed that London hath a Court of Record by prescription and that the same was confirmed by Act of Parliament and that he was one of the Serjeants of the Mace of that Court and that he had a Warrant directed unto him out of that Court to arrest the Plaintiff pro quodam contemptu committed to the Court for not paying twenty shillings to K. B. and that in pursuance of the command of the Court he accordingly did arrest the Plaintiff Maynard that the justification was not good because the Defendant doth not shew what the contempt was nor in what Action so as it might appear to the Court whether they had Jurisdiction or not And if such general Plea should be tolerated every Court would usurp Jurisdiction and every Officer would justifie where the proceeding is Câ—ram non Iudice and void and thereby the Oâ—â—icer liable to false Imprisonment according to the case of the Marshalâ—ee in the 10 Rep. And here the pleading is incertain that the Jury cannot try it and he put the case of the Mayoâ— of Plymouth The Mayor hath Jurisâ—iction in Dâ—bt and Trespass is brought there which is Coram non Iudice But in this Action the parâ—y is imprisoned pro quodam contemptu shall this be a good Justification in a false imprisonment brought against the Officer certainly no. Serjeant Rolls contrary that the Plea was good because that the Defendant hath shewed that the Court was holden secundum consuetudinem and therefore it shall be intended that the contemptâ— was committed in a Case within their Jurisdiction and therefore he cited the 8 Rep. Turners Case to which Maynard replied that that doth not make it good because that issue cannot be taken upon it At another day the Judges gave their Opinions Justice Mallet That the Plea is not good because that it is too general and non constat whether within their Jurisdiction or not and where it was objected that he is a Minister of the Court and ought to obey their commands and therefore it should go hard that he
Anglicè a Drag or Waggon Cum quatuor rotis cum inusitato numero equorum viz. with twelve Horses betwixt Oxford and London and he had used to carry with it five thousand weight so that he had digged and spoiled the way in a Lane called Lobbe-Lanè that the people could not pass To which the Defendant pleaded Not Guilty and was found guilty by Verdict and many excâ—ptions were taken to the Information all which were over ruled by the Courâ— viz. Mallet and Heath Justices and Bramston Chief Justice to be 〈◊〉 the first was That he drave a Waggon Cum iâ—usitato numero equorum and doth not shew the certain number of them and therefore the Information which was in the nature of a Declaration was not good for the incertainty But per Cuâ—iam the same was mistaken for it saith that he drave with eleven horses The second exception was That the usual weight which it ought to carry is not shewed but that was ruled also to be a mistake for it saith 2000 weight The third was that it is not shewed in the Information that the way did lead to other Market-Towns than from Oxford to London but it was ruled to be good notwithstanding that exception because that the place à quo and the place ad quem is set down And it is not material whether it lead to other towns or not The fourth exception was That the Nusance is said to be in a place called Lobbe-Lane and it is not shewed of what quantity or extent that Lane is viz. how many poles or the like but it was ruled to be good notwithstanding that First because that the Jury have found that the way was stopt that the people could not pass and if it was so then it 's not material how long it was Secondly Lobbe-Lane is said only for the certainty of the place that the Viâ—â—e might come from it for of necessity it will be a Nusance through the whole way betwixt Oxford and London And Lastly the Nusance is laid to be through all Lobbe Lane and therefore it is good notwithstanding that exceptson also And therefore the matter and form of the Information being admitted good then the Question was what Judgment shâ—ould be given in this Case whether that the Carrier should repair it at his own costs or should be fined for the Nusance to the Commonwealth or not Justice Mallet there are several Judgments in Cases of Nusance if it be an assise quia levavit or quia exaltavit it ought to be part of the Judgment that the Defendant demolish it at his own costs so where a Nusance is to a River 19 Ass. pl. 6. But our Case differs much from the case of the River for that is a High-way which leadeth to a Port to which all resort and therefore a stronger Case but he conceived that the Judgment should not be that he should repair it because it is said in the Information that the Township ought and therefore it differs from those Cases and he doubted whether he should be fined or no because that the information is not vi armis and not against any Staâ—ute for then it should be a contempt and so fineable but notwithstanding he agreed that he should be fined First becausâ— it is layed to be Contra pacem Domini Regis ad nocumentum of the Kings people which is a contempt and therefore fineable Secondly because that although it is not laid to be vi armis yet it is laid to be a rooting and spoiling which implieth foâ—â—e 11 Ass. 19 Ass. 6. where a Nusance was with force there the Defendant was fined Then admitting that the Defendant shall be fined the Question then is What fine shall be set upon him and he said that it shall be Secundum quantitatem delicti salvo wainagio suo according to the Statute of Magna Charta cap. 14. West 2. So that we ought not to assess a Fine upon any Freeholder to take away his contenement noâ— upon any Villain to take away his wainage and he said that he conceived that the fine set upon him ought to be the less for the great prejudice which might come to the Defendant because that the Township might have an Action upon the Case against him because they are bound to repair it and therefore he cited 27 H. 8. 27. Further he took exception to it that it is not shewed of what value or estate the Defendant is so as we might know what fine to impose for such fine ought to be imposed Salvo wâ—inagio suo as aforesaid and he compared it to the Case in 4 E 4. 36. a Juror is demanded and doth not appear he shall be fined to the value of his estate for a year but that ought to be enquired of by the Jury and not set by the Court because they do not know the value of his estate so in this Case but notwithstanding he agreed that he should be fined because it appeareth to us how great his fault was and the fine ought to be as aforesaid and therefore he set a fine upon him of four Marks Justice Heath two things are here considerable whether there shall be any Judgment as this Case is and admitting that there shall what Judgment shall be given and he agreed that Judgment should be given because that the Information is good as well for the form as for the matter of it it is good for the matter of it because Malum in se ad nocumentum publicum and therefore it is properly pâ—â—â—shable in this Court the rather now because not punishable in another Court the Star-Chamber bâ—ing now taken away and it is good for the form of it for it hath sufficient certainty as is before shewed Now for the judgmâ—nt what shall be given he agreed that he should bâ— fined and imprisoned for imprisonment is incident to a fine but he did not determine what the fine should be he agreed the Rule that the fine shall be secundum quantitatem delicti and that cannot be so â—ittle as it is made for although Lobbe-Lane be layed in which the Nusance should be that is only for necessity that there may be a certain place for the Visâ—e but of necessity the Nâ—â—ance is through the whole High-way betwixt Oxford aâ—â— London And because we will not offend as the Star-chamber did by assessing too high fines for which it was justly condemned so upon the other side we ought not to set so small fines that we injure Justice and be thereby an occasion to increase such faults where we ought to suppress them and therefore he conceived the fine set by Mallet too little but he agreed that the Judgment should be fine and imprisonment but he adjorned the setting of the fine until he had consulted with the Clerks whether it should be inquired of by Commission or other good information Bramston Chief Justice that the Information is good for
Judgment 226. A man libelled for Tithes in the Ecclesiastical Court in his libel he set forth how that the Tythes were set forth but that the Defendant did stop and hinder the Plaintiff to carry them away any other way than through the Defendants Yard and when he was carrying them that way the Defendant being an Officer did attach them for an Assessment to the poor and did convert them to his own use upon which a Prohibition was prayed because that the Tythes being set forth an Action of Trespass lieth at the Common Law but Serjeant Clarke was against the Prohibition because that the Libel is grounded upon the Statute of 2 E. 6. cap. 13. which is That if the Parson c. be stopt or let in carrying his Tythes that the party so stopping or letting should pay the double value to be recovered before the Ecclesiastical Judge But notwithstanding that it was resolved that a Prohibition should issue because he that will sue upon the Statute ought to mention the Statute or to make his demand secundum formam Statuti But here the Plaintiff doth not sue upon the Statute for he doth not mention it nor the double value as he ought for they all agreed that he ought to ground his Action upon the express clause of the Statute for the double value wherefore a Prohibition was granted 227. It was resolved upon the Certificate of the Pronotharies viz. Gulson Cory and Farmer that the custom of the Court was That if a man sueth another for such a sum or thing for which the Plaintiff ought to have special Bail and doth not declare against him in three Terms that the Defendant being brought to the Bar by a Habeas Corpus ought to be discharged upon an ordinary appearance and that they said is the course and practice in the Kings Bench and that was now resolved to be as a certain Rule from thenceforth in this Court by all the Judges viz. Foster Reeve Crawley and Bankes Chief Justice 228. It was said by Justice Reeve that if A. being seised of an Advowson grant the next presentation to B. and B. makes a Bond to A. to pay him twenty pounds when the Church shall fall void that that is Simony and so he said it was adjudged in this Court in Pooles Case and the whole Court did agree that it was Simony for otherwise by this way the Statute should be utterly defeated and note that it was said by Serjeant Rolls at the Bar That it had been often â—adjudged that the Obligor could not avoid such an Obligaion without special averment Palme against Hudde 329. PAlme brought a Quare impedit against Hudde and the case was thus It was debated by Serjeant Godbold the Plaintiff brought a Quare impedit against the Defendant the Defendant shewed how the King was intitled by reason of Simony and that the King had presented the Defendant and that he was persona impersonata of the presentation of the King the Plaintiff denied the Simoniacal contract upon which they were at issue and it was found for the Defendant so as that Judgment was given for the Defendant And the same Plaintiff brought this second Quare impedit against the same Defendant who pleaded all the matter before and the Judgment but did not say that he was now persona impersonata but that he was tunc persona impersonata and that was said by the Serjeant to be naught for he said that at the Common Law no Parson might plead to the Title of the Parsonage but only in the abatement of the Wrâ—t or such like Pleas sâ—e Lib. Entries 503 and 522. and 8 Rep Foxes case and he said that that is a Plea at the Common Law and not upon the Statutâ— of 25 E. 3. for then he ought to have pleaded that Est persona impersonata and not that fuit and that to enable him to plead to the Title of the Patronage according to the Statute for he who will plead according to the Statute ought to pursue it or otherwise his Plea is not good he cannot plead to the Title of the Patronage without shewing that he is persona impersonata the Books are clear 7 Rep. 25 26. 15 H. 7. 6 and 7. 2 R. 2. Incumbt 4. 4 H 8. Dyer 1. 27. And to say that tunc fuit persona impersonata is but an argumentative Plea that because he was then so he is now and such Pâ—ea is not good for it ought to be positive and not by way of argument or illation Besides it may be that he was persona impersonata tunc and not tunc for he might resigne or be deprived after or the like and therefore it is a Non sequitur that he was persona impersonata then and therefore now and it shall be intended rather that he is not persona impersonata nunc for paroles font Plea and the Plea of every man shall be taken strong against himself wherefore he concluded that the Plea was not good Foster agreed that the Parson cannot plead to the Title of the Patronage without shewing that he is persona-impersonata but the Question here is as he conceived Whether the Plaintiff be not stopped by this recovery and Judgment yet remaining in force to say the contrary Bankes Chief Justice It is true that generally the Parson without shewing that he is persona impersonata cannot plead to the Title of the Patronage But whether the Defendant cannot plead the Record and Judgment yet in force against the Plaintiff without shewing that he is persona impersonata that is the Question here Note it was the first time it was argued Harwel against Burwel in a Replevin in the Kings Bench. 230. THe Case was thus A man acknowledged a Statute to the Plaintiff and afterwards granted a Rent-charge to the Defendant afterwards the Statute is extended and safied and then the grantee of the Rent distreins And whether he might distrein without bringing a Scire facias was the Question And by Serjeant Rolls he cannot distrein without a Scire facias brought and he took it for a Rule That because the Conusee came in by matter of Record he ought not to be put out or disturbed without matter of Record for if that should be suffered it would be a great discouragement to Debtees to take this manner of security for their debts and the Conusor cannot enter without bringing a Scire facias and if the Conusor himself cannot enter it is a good argument à fortiori that the grantee of a rent cannot distrein without a Scire facias and that the conusor himself cannot enter without bringing a Scire facias vid. 15 H. 7. 15. 4 Rep. 67. Fullwoods case And the grantee of the Rent is as well within the ground and rule before put as the conusor himself and therefore he compared the case to the case in the 10 Rep. 92. that he who claims under another ought to shew the original conveyance But he took
it and if this City be well governed the whole Kingdom will fare the better and at this time we want many Aldermen and if these shall escape by the same reason others will do so and so the Government utterly should fail And where it was objected that it is usual to make them to take the Oath and accept a fine of them after To that he said that they would not do so now in this Case for he said that the party chosen is an able man and a man whom they respect and not his money And therefore he said that the custom to imprison him for refusing is more reasonable than if the custom were to fine him for he said that that Custom is the most reasonable custom which is most fit for the attaining of its end and he said that imprisonment is most apt for the obtaining the end for when we accept a fine there is no end of it for he may be chosen after and how can the Government be supported which is the end of the election if all should be fined wherefore the custom to imprison is more reasonable than if the custom had been to fine because it is more apt to attain the end which is to maintain the Government it is said in 38 Ass. p. 22 Br. Imprisonment 100. That it was resolved 2 Ma. in Parliament that imprisonment almost in all Cases is but to detain him untill he makes a fine and if he tender that to be discharged To that he said that the same ought to be understood where a fine is imposed but we do not intend to accept of a fine Further he said that there is a Judgment in the point and that is the Statute of 3 Iac. cap. 4. which injoyns an Oath for Recusants to take and for refusal that they shall be committed until c. here he said that an Act of Parliament hath done it in the like Case and therefore he conceived the custom reasonable and then he cited many presidents of commitment in this very Case 2 H. 5. Iohn Gidney was dealt with in the same manner 8 E. 4. Charles Faman was imprisoned 36 H. 8. Thomas White 1 Iac. Sir Thomas Middleton all which were imprisoned for refusing to take the Oath And lastly he cited one 3 Iac. and that was Sir William Bonds Case who was imprisoned by the Court of Aldermen for the same cause and it came judicially in question and he said that upon solemn debate it was resolved that he should be remanded wherefore he concluded that the commitment being by a Court of Record and that for a contempt against the Court and that for not observing of the customs of the City which is against the Oath of a freeman and which are confirmed by Act of Parliament that the commitment is good and lawful and therefore prayed that the prisoner might be remanded And now this Term it was resolved by the Judges upon solemn debate that the retorn notwithstanding any of the said exceptions was sufficient Justice Mallet the Retorn is sufficient in matter and form but for the matter of it I shall not ground my self upon the custom but upon part of the record which is upon the contempt for although I agree that Consuetudo loci is of great regard yet I conceive it is not strong enough to take away the liberty of a freeman by imprisonment Power to imprison the body of a freeman cannot be gained by prescription or grant and a grant is the ground of a prescription and therefore if it be not good in a grant not in a prescription and I conceive that it is the Common Law only or consent to an Act of Parliament that shall subject the body of a freeman to imprisonment and it is resolved in the 5 Rep. 64. acc in Clarkes Case and agreed in 8 Rep. 127. That a constitution cannot be made by a Corporation who have power to make by-Laws upon pain of imprisonment because it is against the Statute of Magna Charta wherefore I conceive the power to imprison the body of a freeman cannot be gained by custom but although it cannot be gained by custom yet Qui non transeunt per se transeunt per aliud it will pass as a thing incident to a Court of Record and therefore although I hold that the custom to imprison is not good yet I hold that the imprisonment here by a Court of Record for a contempt made unto it as appeareth by the Retorn here it was is good for in the conclusion of the Retorn it saith that he refused in contemptum Curiae c. And that it is incident to a Court of Record to imprison 8 Rep. 38. b. it is there resolved that for any contempt done to a Court of Record the Judges may impose a fine and 8 Rep. 59. b. It was resolved that to every fine imprisonment is incident Further I conceive that by the same reason that a Court of Record may imprison for a fine they may imprison for a contempt and in 8 Rep. 60. it is said that to imprison doth belong only to Courts of Record but which is in the point it is resolved 119. b. in Doctor Bonhams Case that it is incident to every Court of Record to imprison for a contempt done to the Court and he said that if a Court of Record should not have such a coercive power they should be in effect no Court. Wherefore he conceived that the refusing to take the Oath being a contempt and that to a Court of Record as it appeareth by the Retorn that they may lawfully commit him for this contempt For the objection that the debito modo electus without shewing how is too general To that he answered that it is only matter of inducement and there is no necessity to shew all matter of inducement For the objection that he had not notice of the election To that he answered that here is good notice for by the Retorn it appeareth that according to the custom after he was elected he was called to the Court and the Oath tendred to him and he refused which without doubt implies notice quod constat clare non debet verificare as after appearance all exceptions to process are taken away as the Books of 9 E. 4. 18. 12 H. 4. 17 18. and many other Books are so I say in this Case after appearance you shall never say that you had not notice for by your appearance you admit it and the process good For the Objection to the Oath that it is not good because it makes a man abjure his Trade which is against Law and Reason To that I answer that the Aldermen are intrusted with the assize of Bread and Ale and so with Wine and Fish and therefore as it is unreasonable so it is against the Law that during his Office he should use the Trade of which he hath Jurisdiction and power to regulate and to punish the misdemeanors
do so it is void And for that he cited Clegat and Batchellers Case before that the obligation in such Case is void and he said that the reason which was given by one why the Bond should be void was grounded upon the Statute of Magna Charta cap. 29. which wills That no freeman should be ousted of his Liberties but per legem terrae and he said that the word Liberties did extend to Trades and Reeve said that by the same reason you may restrain a man from using his Trade for a time you may restrain him for ever And he said that he was confident that you shall never find one Report against the Opinion of Hull 2 H. 5. For the other part of the difference he cited Hill 17 Iac. in this Court Rot. 1265. and 19 Iac. in the Kings Bench Braggs case in which Cases he said it was adjudged against the Action upon a Bond but with the Action of the Case upon a promise that it would lie But note that all the Judges viz. Foster Reeve and Crawley Bankes being absent held clearly that if the condition be against the Law that all is void and not the condition only as was objected by Evers and it was adjorned Apsly against Boys in the Common Pleas in a Scire facias to execute a Fine upon a Grant and Render Intrat Trin. 16 Car. Rot. 112. 239. THe Case upon the Pleading was this A fine upon a Grant and Render was levied in the time of E. 4. upon which afterwards a Scire facias was brought and Judgment given and a Writ of seisin awarded but not executed Afterwards a fine Sur coâ—usans de droit come ceo c. with Proclamations was levied and five years passed and now another Scire facias is brought to execute the first fine to which the fine Sur conusance de droit come ceo is pleaded so as the only Question is Whether the fine with Proclamations shall bar the Scire facias or not Serjeant Gotbold for the Plaintiff it shall not bar and his first reason was because not executed 1 Rep. 96 97. and 8 Rep. 100. If a disseisor at the Common Law before the Statute of Non-claim had levied a fine or suffered Judgment in a Writ of Right until Execution sued they were no bars and a fine at Common Law was of the same force as it is now and if in those Cases no bar at Common Law until Execution that proves that this interest by the fine upon grant and render is not such an interest as can bar another fine before execution Besides this Judgment by the Scire facias is a Judgment by Statute and Judgment cannot be voided but by error or attaint Further a Scire facias is not an Action within the Statute of 4 H. 7. and therefore cannot be a bar 41 E. 3. 13. 43 E. 3. 13. Execution upon Scire feci retorned without another plea and it is not like to a Judgment for there the party may enter but not here Besides it shall be no bar because it is executory only and in custodia legis and that which is committed to the custody of the Law the Law doth preserve it as it is said in the 1 Rep. 134. b. and he compared it to the Cases there put and a fine cannot fix upon a thing executory and the estate ought to be turned to a right to be bound by a fine as it is resolved in the 10 Rep. 96. a. 9 Rep. 106. a. Com. 373. And the estate of him by the first fine upon grant and render is not turned to a right by the second fine Lastly the Statute of 4 H. 7. is a general Law and in the affirmative and therefore shall not take away the Statute of West 2. which gives the Scire facias and in proof of that he cited 39 H. 6. 3. 11 Rep. 63. 68. and 33 H. 8. Dyer 15. I agree the Case which hath been adjudged that a fine will bar a Writ of Error but that is to reverse a Judgment which is executed but here the Judgment is not executed and therefore cannot be barred by the fine wherefore he prayed Judgment for the Plaintiff Note that it was said by the Judges that here is no avoiding of the finâ— but it shall stand in force but yet notwithstanding it may be barred and they all said that he who hath Judgment upon the Scire facias upon the first fine might have entred and they strongly inclined that the Scire facias is barred by the fine and doth not differ from the Case of a Writ of Error but they delivered no opinion Taylers Case 240. THe Case was thus The Issue in Tail brought a Formedon in Descend and the Defendant pleaded in Bar and confessed the Estate Tail but said that before the death of the Tenant in Tail I. S. was seised in fee of the lands in question and levied a fine to him and five years passed and then Tenant in Tail died whether this plea be a bar to the Plaintiff or not was the Question and it rested upon this Whether I. S. upon this general Plea shall be intended to be in by disseisin or by feoffment for if in by disseisin then he is barred if by feoffment not and the opinion of the whole Court was clear without any debate that he shall be intended in by disseisin and so the Plaintiff is Bar as the Books are 3 Rep. 87. a. Plow Com. Stowels Case and Bankes Chief Justice said that it shall not be intended that Tenant in Tail had made a feoffment to bar his issues unless it be shewed and it lies on the other part to shew it and a feoffment is as well an unlawful Act as a dissâ—isin for it is a discontinuance Commins against Massam in a Certiorare to remove the proceedings of the Commissioners of Sewers 241. THe Case upon the proceedings was thus Lessee for years of Lands within a level subject to be drowned by the Sea covenanted to pay all assessments charges and taxes towards or concerning the reparation of the premisses A wall which was in defence of this level and built straight by a sudden and inevitable Tempest was thrown down one within the level subject to be drowned did disburse all the mony for the building of a new wall and by the order of the Commissioners a new wall was built in the form of a Horshooe afterwards the Commissioners taxed every man within the level towards the repaying of the sum disbursed one of which was the lessee for years whom they also trusted for the collecting of all the mony and charge him totally for his land not levying any thing upon him in the reversion and also with all the damages viz. use for the mony Lessâ—e for years died the lease being within a short time of expiration his executor enters and they charge him with the whole and immediately after the years expired the executors brought this
therefore I did not stick upon the Certiorare because what was done was by consent consensus tollit errorem if any be Now for the points as they arise upon the proceedings of the Commissioners and for the first I hold that the covenant doth well extend to this new wall and the making of it in the form of a horshooe is not material so as it be adjoyning to the land as it here was for that may be ordered according to their discretions it is a rule in Law that the covenant of every man ought to be construed very strong against himself and although that in this Case the new wall be not parcel of the premisses as it was at the time of the covenant because that the wall then in esse and to which the covenant did extend was a straight wall yet according to the words of the covenant this tax is towards the reparation of the premisses and if it should not extend to this new wall the covenant should be idle and vain and clearly the meaning of the parties was that it should extend to all new walls For the second point I hold the covenant although it be a collateral thing within their Jurisdiction true it is as it is said in 28 H. 8. that contracts are as private Laws betwixt party and party but you ought to know that their Commission gives them power to charge every man according to his tenure portion and profit and he who is bound by custom or prescription to repair such walls is not within the words of their Commission yet it is resolved in the 10 Rep. 139 140. in Kighleys case that the Commissioners may take notice of it and charge him only for the reparations where there is default in him and the danger not inevitable and by the same reason you may exclude this covenant to be out of their Jurisdiction you may exclude prescription also I agree that where the covenant is meerly collateral as if a man who is a stranger covenants to pay charges for repairing of such a wall that that is not within their Jurisdiction because he is a meer stranger and cannot be within their Commission but in our Case it is otherwise for the covenantor is occupier of the land and it hath been adjudged that if lands or chattels are given for the reparation of a Sea-wall that it is within their Jurisdiction and they may meddle with it that is as collateral as the covenant in question wherefore I hold that the covenant is within their Jurisdiction For the third point I hold that they may well charge the executor for the executor here hath the lease as executor but it was objected That the term is now determined and peradventure the executor hath not assets To that I answer that it is admitted that he hath assets for the Commissioners cannot know whether he hath assets or not and therefore he ought to have alledged the same before the Commissioners and because he hath not done it he hath lost that advantage and it shall be intended that he hath assets by not gain-saying of it Fourthly for the damages I first chiefly doubted of that but now I hold that it is within their Jurisdiction Put case that one in extreme necessity as in this Case disburse all the money for the reparations or the wall or Sea-bank if the Case had gone no further clearly he shall be repaid by the tax and levy after and I conceive by the same reason they have power to allow him damages and use for his mony for if it should not be so it would be very inconvenient for who would after disburse all the money to help that imminent danger and necessity if he should not be allowed use for his money and the Lessee here is only charged with the damages for the money collected which he had in his hands and converted to his own use and therefore it is reasonable that he should be charged with all the damages Besides they having conusans of the principal have conusans of the accessory as in this Case of the damages and he urged Fitz. 113. a. to prove that before the Statute of 23 H. 8. they had a Court and were called Justices but he held as it was agreed before That no Writ of Error lieth after this Statute but yet he said that the party grieved should be at no loss thereby for he said that where the party cannot have a Writ of Error nor Audita querela there he shall be admitted to plead as in 11 H. 7. 10. a. Where a Recognisance of debt passed for the King upon issue tried and afterwards the King pardons it the party after Judgment may plead it because Audita querela doth not lie against the King and where a man is not party to a Judgment there he cannot have a Writ of Error but there he may falsifie so I conceive that he may in this Case because he cannot have a Writ of Error and I conceive as it hath been said before that after the Statute of 23 H. 8. the Commissioners of Sewers have a mixt Jurisdiction of Law and equity For the Certiorare I will advise hereafter how I grant it although I conceive as I have said before that a Certiorare lies after the Statute and is not taken away by the Statute and I conceive in some clearness that it may be granted where any fine is imposed upon any man by Commissioner which they have authority to do by their Commission as appeareth by the Statute to moderate it in Case that it be excessive But as I have said before because that the parties by agreement voluntarily bound themselves by Recognisance to stand to the judgment of this Court upon the proceedings as they are certified that made me at this time not to stand upon the Certiorare wherefore I do confirm the decree 242. Rolls moved this Case A. did suffer B. to leave a trunk in his house Whether B. might take it away without the special leave of A. was the Question Justice Mallet leave is intended but Rolls conceived that he could not take it without leave Hammon against Roll Pasch. 18. Car. in the Common Pleas. 243. IN an Action upon the Case upon Assumpsit the Case upon special verdict was this A. and B. were bound joyntly and severally in a Bond to C. who released to A. afterwards there being a communication betwixt B. and C. concerning the said debt B. in consideration that C. would forbear him the payment of the said mony due and payable upon the said Bond till such a day promised to pay it c. C. for default of payment at the said day brought this Action upon the Case B. pleaded the general issue and thereupon the whole matter before was found by the Jury Serjeant Clarke here is not any good consideration whereupon to ground an Assumpsit because by the release to one obligor the other is discharged and then there being no
debt there can be no consideration and therefore the promise void because it is but nudum pactum Rolls contrary that there is a good consideration because that although by the release to one obligor the debt of the other be discharged sub modo viz. if the other can get it in his power to plead yet it is no absolute discharge for if he cannot get it into his hand to plead it he shall never take advantage of it and then if it be no absolute discharge but only sub modo viz. if he can procure it into his hand to plead then the consideration is good for perhaps he shall never get it Justice Foster asked him if by this release the debt be not intirely discharged to which he answered No as to B. only but sub modo as I have said before but he said and with him agreed the whole Court that the Law is clearly otherwise that the debt is intirely gone and discharged and then clearly there can be no consideration in this Case Justice Reeve every promise ought to have a consideration and that ought to be either benefit to him that makes it or disadvantage to him to whom it is made and in this Case the consideration which is the ground of the Assumpsit is neither benefit to him that made it nor disadvantage to hiâ— to whom it was made because there was no debt for it was totally discharged by the release made to A. Crawley agreed to it Bankes Chief Justice was absent But because the obligation was laid to be made in London and no Ward or Parish certain put from whence the Visne should come they conceived clearly that it was not good Pasch. 18º Car. in the Kings Bench. Heamans Habeas Corpus 144. RIchard Heaman was imprisoned by the Court of Admiralty upon which he prayed a Habeas corpus and it was granted upon which was this retorn viz. First the custom of the Admiralty is set forth which is to attach goods in causa civili maritimi in the hands of a third person and that upon four defaults made the goods so attached should be delivered to the Plaintiff upon caution put to restore them if the debt or other cause of Action be disproved within the year and after four defaults made if the party in whose hands the goods were attached refused to deliver them that the custom is to imprison him until c. Then is set forth how that one Kent was indebted unto I. S. in such a sum upon agreement made Super altum mare and that Kent died and that afterwards I. S. attached certain goods of Kents in the hands of the said Heaman for the said debt and that after upon summons four defaults were made and that I. S. did tender caution for the re-delivery of the goods so attached and condemned if the debt were disproved within the year and that notwithstanding the said Heaman would not deliver the goods for which he was imprisoned by the Court of Admiralty until c. Widdrington of Counsel with the prisoner took this exception to the Retorn that it appeareth by the Retorn that Kent who was the debtor was dead before the attachment and you shall never attach the goods of any man as his goods after his death because they are not his goods but the goods of the executor in the right of the testator Besides although the attachment be upon the goods yet the Action ought to be against the person which cannot be he being dead wherefore he prayed that the prisoner might be discharged Hales that the attachment is well made notwithstanding that the party was dead at the time of attachment for it is the custom of their Court so to proceed although that the party be dead Besides he said that although that the party were dead yet the goods are bona defuncti and to prove that he cited 10 E. 4. 1. the opinion of Danby and Catesby That the grant of Omnia bona catalla sua by an executor will not pass the goods which he hath as executor because they are the goods of the dead But note that it was here said by Bramston Chief Justice that it had been adjudged divers times against the opinion aforesaid that it passeth the goods which the executor hath as executor and he said that if a man hath a judgment against an executor to recover goods the Judgment shall be that he recover bona defuncti To that the Court said that the Judgment is not quod recuperet bona defuncti but quod recuperet the goods which fuerunt bona defuncti For the objection that the plaint ought to be against the person which cannot be when he is dead to that Hales said that in the Admiralty the Action is against the goods and therefore the death of the person is not material to that Justice Heath said that it is the party who is charged the goods are only chargeable in respect of the person and you shall never charge the goods alone but there ought to be a party to answer Hales if they have Jurisdiction they may proceed according to their Law and we cannot hinder it to which Heath said take heed of that when it concerneth the liberty of the Subject as in this Case And note that Bramston Chief Justice asked the Proctor of the Admiralty then present this Question Whether by their Law the death of the party did not abate the action and he said that it did then said the Chief Justice it is clear that an attachment cannot be against the goods the party being dead wherefore by the whole Court the custom to attach goods after the death of the party is no good custom and therefore they gâ—ve Judgment that the prisoner should be discharged 245. Note that Bramston Chief Justice and Heath Justice said in evidence to a Jury that a Will without a Seal is good to pass the Land and that it is a Forgery expresly by the Statute of 5 Eliz. cap. 14. to forge a Will in writing Pasch. 18º Car ' in the Kings Bench. Fulham against Fulham in a Replevin 246. THe Case was thus Henry the 8 seised of a Mannor in which are Copyholds grants a Copy-hold for life generally and whether this be a destroying of the Copyhold or not was the Question And it was argued by Harris that the grant was utterly void because the King was deceived in his grant for he said the King had election to grant it by Copy and therefore it shall not be destroyed by a general grant without notice and cited many Cases to prove that where the King is deceived in the Law his Grant shall be void but Bramston Chief Justice and the Court said that it never recited in any of the Grants of the King what is Copyhold and they were clear of Opinion that the Grant was not void But whether it destroy the Copyhold or not so as the King hath not election to grant the
REPORTS OR NEW CASES WITH Divers Resolutions and Judgements given upon solemn Arguments and with great deliberation AND The Reasons and Causes of the said Resolutions and Judgements COLLECTED By JOHN MARCH of Grayes Inne BARRESTER LONDON Printed by M. F. for W. Lee M. Walbanke D. Pakeman and G. Beadel M.DC.XLVIII REPORTS Easter-Term 15º CAROLI In the Kings Bench. IT was agreed by Justice Iones and Justice Barckley the Lord Chief Justice and Justice Crook being absent That if the Sheriff do arrest a man upon mesne processe and return a Cepi corpus and that the Defendant was rescued that no Action lieth against the Sheriff But if the party be taken upon an Execution an Action upon the Case lieth against him and so is the express Book of 16 E. 4. 2 3. Br. Escape 37. upon which Book Justice Iones said That it was adjudged in this Court as above is said 2. It was agreed by the Court That if a man in pleading derive an Estate from another man and doth not shew what Estate he had from whom he deriveth his Estate that is a good cause of Demurrer And Justice Iones said That if a man claim a Rent by Grant out of the Land of any other man it is not sufficient for him to say That such an one was seised and concessit but he ought to express of what Estate he was seised So is Dyer But in this Case it was agreed That the shewing of what Estate c. ought to be material to the maintenance and support of the Estate which he claimeth otherwise it is not necessary 3. An Action upon the Case for words was brought by one who was Journey-man and â—ore-man of a Shoomakers-shop which was his living and livelihood for these words viz. It is no matter who hath him for he will Cut him out of doors And farther the Plaintiff did aver that the common acceptance of these words amongst Shoomakers is That he will begger his Master and make him run away and shewed that he was particularly endamnified by speaking of those words And the Court was clear of Opinion that the Action would lie And these Rules were taken and agreed For some words an Action will lie without particular averment of any damage as to call a man Thief Traytor or the like these are malum in se And some words will not bear Action without particular averment of some damage as to say Such a one kept his wife basely and starved her these words of themselves will bear no Action but if the party of whom the words were spoken were in election to be married to any other and by speaking of these words is hindred there with such Averment they will bear an Action It was farther agreed That the words ought to be spoken to one that knows the meaning of them otherwise they are not actionable as in the principal Case they were spoken to a Shoomaker but if they had been spoken to any other who knew the meaning of them it had been all one And therefore scandalous words which are spoken to one in Welsh or any other Language which the party to whom they are spoken doth not understand are not actionable And it was agreed That some words which are spoken although of themselves they are not actionable yet being equivalent with words which are actionable they will bear an Action And therefore it was said by Justice Iones That in York-shire as I remember Straining of a Mare is as much as Buggering and because these do amount to as much with averment they will bear Action And all words which touch a man in his livelihood and profession will bear Action And the Opinion of the Court also was that the Averment ought to be That in this and shew it specially the Plaintiff was damnified and so it was agreed upon these Reasons that the Action did lie 4. The Opinion of the Court was upon a Judgment given there there ought to be two Scire facias one against the Principal the other against the Bail but one only is sufficient in the Common Pleas and that two Nichils returned do amount to Scire feci 5. There was a Contract made at Newcastle that a ship should sail from Yarmouth to Amsterdam and there was an Action of Debt brought upon the Contract at Newcastle and it was adjudged that the Action would not lie and the difference was taken betwixt a particular and limited Jurisdiction as in this case Newcastle is and a general Jurisdiction as one of the Courts at Westminster hath for in the first Case no particular Jurisdiction shall hold plea of a thing which is done in partibus transmarinis although the Original as the Contract in the principal Case be made in England but contrary in case of general Jurisdiction as any the Courts at Westminister have 6. The Custome of London is that any man in London may pass over or put over his Apprentices to any other man within the City King and Cokes Case 7. WIlliam Marshal and other Bailiffs had an Execution viz. a Capias ad satisfaciend ' against Coke and others which Bailiffs came to Coke's house and lay one night in his out-houses privily and the next morning they came to his dwelling-house and gave him notice of the Execution but Coke shut the doors of his house close so as the Bailiffs could not enter whereupon they brake the Glass-windows and the Hinge of the door endeavouring to enter whereupon Coke commanded them to be gone or he would shoot them notwithstanding which they did continue their ill-doing whereupon Coke shot Marshal one of the Bailiffs and whether this was Manslaughter or Murder was the Question And Rolls argued that it was not Murder for these causes 1. Because the act of the Bailiffs in breaking of the Glass and the Hinge of the door was an unlawful act and was at their pâ—ril Where the Kings Officer may break the house to serve any mean Process or Execution the differences are such as are in Semaynes Case C. 5. part 91 92. 1. betwixt Real and Personal Actions In Real Actions they may break the house to deliver seisin to him who recovereth contrary in Personal Actions 2. There is a difference in the case of the King and of a common person where the King is party in some cases his Officers may justifie the breaking of a house but not in the case of a common person 13 E. 4. 9. 18 E. 4. 4. 4 Rep. 4 9 Rep. 69. And therefore if they could not justifie the breaking of the house at the suit of a common person then in the principal Case they did a thing which was not warranted by Law and therefore the killing of one of them was not Murder But clearly if the Bailiffs had lawfully executed their Office then it had been Murder 2. It was not Murder because the person was in his House which is his Castle and defence which is a place priviledged by the Law 26. Ass.
23. 3 E. 3. 330 305. Besides the party is not bound to tarry till the Bailiffs come in and beat him 2 H. 4. 8. 19 H. 6. 31. 34 H. 6. 16. 43 Ass. pl 31. 3. This Authority which is given to the Kings Officer is given by the Law and if he execute it according to the Law the Law will protect him but if he exceed the priviledge given him by the Law then all he doth is illegal and he loseth its protection And he resembled it to the 6 Carpenters case C. 6. part Farther one may pretend he hath such a warrant when he hath it not of purpose to rob or do some other mischief And it was agreed by all the Justices nullo contradicente that it was not Murder but that it was Manslaughter for this reason especially because the Officer was doing an unlawful act not warranted by Law and therefore it was at his peril if he were killed And farther upon this difference there ought to be malice in fact or in Law to make Murder but in this Case there is none of them for it is apparent that there was no malice in fact and there is no malice implied for then it ought to be where a man kills another without any provocation or the Minister of Justice in the due and lawful execution of his Office which is not our Case for here he did an unlawful act at the time he was killed and therefore it was not Murder but Manslaughter There was a Case tried at the Sessions in the Old-Baily which was thus One Lovell had two Maid-servants and one of them without his knowledge had received into the house a Chare-woman who all being in their beds by her negligence let a Thief into the house and afterwards called out Thieves Thieves and afterwards Lovell came out of his Bed with a Sword in his hand and the Chare-woman calling to mind that she was there without his privity or his wifes hid her self behind the Dresser and Lovell's wife espying her there cried out Thieves Thieves for which Lovell came and ran her into the brest with his Sword And the Opinion of the Justices at the Old-Baily and also of all the Justices of the Kings Bench was That it was neither Murder nor Manslaughter Not Murder because there was no forethought malice not Manslaughter because he supposed her to be a Thief and if she had been a Thief then it was clear that it was not Manslaughter 8. It was resolved in the Chancery as the Judges of the Kings Bench said That where the Son is of full age and is ravished that the Father shall not recover Damages because the Son being of full age might marry himself without the consent of the Father and that was the reason given as I conceive and the Case was said to be Sir Francis Lees Case 9. The Book of Canons is that the Parson may Elect one Church-warden and the Parishioners another 10. There can be no Surrender without the Consent of the Reversioner 11. It was Libelled in the Ecclesiastical Court for these words Thou art a Drunkard or usest to be drunk thrice a week And thereupon Prohibition was Prayed and Granted and it was said and agreed That so it was adjudged betwixt Vinior and Vinior in this Court The Case in Dyer 254. b. where the Presentee was refused because he was a common haunter of Taverns c. was by Justice Barckley denied to be Law and so agreed by Justice Iones the Lord Chief Justice and Justice Crooke being absent But Justice Barckley was utterly against the Prohibition 1. Because the Action in the Ecclesiastical Court is only pro salute animae And 2. Because that Drunkenness is in their Articles and Presentable But Justice Iones granted a Prohibition and said that Linwood said well That if all things which are against the Law of God or words to that effect should be tried in the Ecclesiastical Court the Jurisdiction of the Temporal Court should utterly be destroyed 12. If there be an Indictment of Forcible Entry if it appear that the Plaintiff had seisin at the time of the Writ brought there can be no Writ of Restitution for the Statute â—aith If he Enter with Force or keep him out with Force but yet in that case the King shall have his Fine And there was an Indictment which was a principal Case at Bar which was That the Defendant adtunc adhuc doth keep the possession forcibly whereas the Plaintiff was in possession And thereupon a Writ of Restitution was awarded by reason of the word adhuc 3 E. 4. 19. it was adjudged That where there is Forcible Entry and Reteiner with Force that both are punishable although the Statute of 8 H. 6. 9. be in the disjunctive 13. Descent of a Copy-hold shall not take away Entry There ought to be a custome to enable the Lord of a Mannor to grant a Copy-hold in Reversion 14. In the Council of Marches of Wales they proceed according to Directions and they cannot exceed them and they 〈…〉 with Freehold for it is not within their 〈…〉 And they cannot hold Plea of Debt above fifty poundâ— 15. An Assignment of Rent to a Woman out of Land of which she is Dowable by Word is good but if she be not Dowable of the Land then the Assignment by Word is not good and void because that in the first Case it is according to common Right but in the last not 33 H. 6. 16. In a Writ of Error to Reverse a Judgment in an Action of Debt upon an Arbitrament the Error assigned was this That two did refer themselves to Arbitrament of their two several Arbitrators and there is no word of Submission that the same is Error and there was Error in the Entry of the Judgment the entry of which was in this manner Consideratum est and per Curiam is omitted and left out And for these Errors the Judgment was Reversed Smith's Case 17. ONe said of him Thou art forsworn and hast taken a false Oath at Hereford Assises against such a one naming the party And the Opinion of the Court the Chief Justice and Justice Crooke being absent was against the Action But they conceived that the Action would have lied if the Defendant had said Thou art forsworn and hast taken a false Oath at the Assises against such an one with Averment that he was sworn in the Cause 18. It was said at the Bar That it was adjudged in this Court in Appletons Case That where a man said unto another by way of Interrogatory Where is my Piece thou stolest from me that it was actionable Justice Iones remembred this case where one said J. S. told me that J. N. stole a Horse but I do not believe him This with Averment that I. S. did not say any such thing would bear an Action Justice Barkley said That an Action was brought upon these words You are no Thief and that these words with Averment which
imply an affirmative will bear an Action 19. It was said to a Merchant That he was a cousening Knave And the Opinion of the Court was the chief Justice and Justice Crooke being absent that the words were not actionable because he doth not touch him in his Profession for the words are too general But it was said That to call him Bankrupt was actionable And mall Cases where a man is touched in his Profession the words are actionable But to call a Lawyer a Bankrupt is not actionable Justice Iones said that Serjeant Heath brought an Action for these words One said of him That he had Vndone many and it was adjudged actionable because he touched him in his Profession 20. Kingston upon Hull is a Particular and Limited Jurisdiction and they held Plea of a Bond which was made out of their Jurisdiction and thereupon a Capias was awarded against the Obligor who was arrested upon it and suffered by the Sheriff to escape And the Opinion of the Court was clear That no escape would lie against the Sheriff upon the difference in the case of the Marshalsea That if the Court hold Plea of a thing within their Jurisdiction but proceed erroneously that it is avoidable by Error but if they have not Jurisdiction of the cause all is void and coram non Iudice 11 H. 4. and 19 E. 4. Acc. So in the principal Case for they held Plea of a thing which was out of their Jurisdiction and therefore the whole proceeding being void no Action can lie against the Sheriff for there was no Escape 21. Where a man is Outlawed and the Outlawry reversed notwithstanding the Original doth remain and the cause that the Original was determined was the Outlawry and now Cessante causa cessat effectus 22. A man made a Lease for years with exception of divers things and that the Lessee shall have conveniens lignum non sâ—â—ccidendo c. vendendo arbores c. Now the Lessee cut down Trees and the Lessor brought an Action of Covenant and the Opinion of the Court was That the Action would lie and that it is as a Covenant on the part of the Lessee because the Law gives him reasonable Estovers and by this Covenant he abridgeth his Priviledge 23. Justice Iones said and so it was agreed by the Court In what case soever there is a Contract made to the Testator or the Intestate or any thing which ariseth by Contract there an Action will lie for the Executor or Administrator but Personal Actions die with the Testator or Intestate 24. The Administrators of an Executor shall not sue a Scire facias upon a Judgment given for the Testator because the Testator now died Intestate because there is no privity And so it hath been many times adjudged 1 Rep. 96. a. 5 Rep. 9. b. The Earl of Oxford and Waterhouse Case in a Writ of Error to reverse a Fine 25. WAterhouse levied a Fine the Earl of Oxford pleaded that he was beyond Sea at the time of the Fine levied Waterhouse replied That he came here into England in August within the five years and upon that they were at issue The Jury found that he came over in Iuly And notwithstanding the Opinion of the Court was clear That the Writ of Error did not lie For although the Jury have found that he came over in Iuly yet the substance of the matter is that he was in England so as he might have made his Claim and therefore the Fine should bar him And Justice Barckley compared it to the Case of 10 Eliz. Dyer 271. b. which Case is a Quaere in Dyer but Resolved in the 6 Rep. 47. a. A man brought Debt against an Heir who pleaded that he had nothing by Descent The Plaintiff pleaded that he had Assets in London and the Jury found Assets in Cornwal and good for the substance is whether he had Assets or not 26. If a Nobleman who is not a Baron or Earl of this Realm in an Action brought against him or by him be named Knight and Earl of such a place it is good because that although he cannot be sued or sue another by the name of Earl Baron c. yet by the name of Knight he may and that is sufficient 27. Writ of Error was brought here to reverse a Judgment given in Ireland it is a Supersedeas to the Execution for although the Record it self is not sent over for fear of losing the same in the water or otherwise yet a transcript is made thereof which is all one And Justice Barckley compared it to the Case where a Writ of Error is brought in this Court to reverse a Fine in the Common Pleas there the Record it self is not sent but a Transcript thereof because we have not a Cirographer to receive it but the Transcript is all one Sir John Compton's Case upon the Statute of Winchester 13 Ed. 1. and 27 Eliz. of Robberies 28. SIr Iohn Compton Knight brought an Action against the Hundred of Olison or the like name for a Robbery done upon Red-hill in the County of Surry within the aforesaid Hundred and the Robbery was done upon his man and five hundred and ten pounds was taken from him And in this Case it was agreed by the Justices That although there be a remisness or negligence in the party who was robbed to pursue the Robbers or that he did refuse to lend his Horse to make Hue and Cry yet this doth not take away his Action nor excuse the Hundred if notice be given with as much convenient speed as may be as the Statute of 27 Eliz. speaks for them to make Hue and Cry And although the Party who was robbed doth not know the Robbers at the present time and thereof takes his Oath before a Justice of Peace as the Statute of 27 Eliz. hath provided and afterwards comes to know them and so he affirm yet this doth not take away his Action And it was resolved also that notice given in one Hundred five miles from the place where he was robbed is sufficient and the reason is because that the party who is a stranger to the Country cannot have conusance of the nearest place or Town Chief Justice That notice given at one Town and Hue and Cry levied at another is good And the Jury found for the Plaintiff And thereupon a Quaere was made by one who was of Counsel with the Hundred Whether such persons who become Inhabitants after the Robbery and before the Iudgment whether they should contribute And Justice Barckly said That all who are Inhabitants at the time of the Execution should pay it 29. A Vicar cannot have Tithes but by Gift Composition or Prescription For all Tithes de jure do appertain to the Parson 30. A man was bound to the Good Behaviour for Suborning of Witnesses Plowden against Plowden 31. PLowden the Son brought Trespass against Plowden the Father for taking the Plaintiffs Wife cum bonis viri And
the Process was lest at the Defendants house being sixty miles from London and twelve pence to bear his charges which the party did accept And the party who served the Process promised the Defendant sufficient costs And here Mr. Iones who was of Counsel with the Defendant took three Exceptions 1. Because the Process was not served upon the Defendant as the Statute requires but a Note only thereof and it being a Penal Statute ought to be taken strictly 2. There was but 12 d. delivered to the Defendant at the time of the serving of the Process which is no reasonable sum for costs and charges according to the distance of place as the Statute speaks and therefore the promise that he would give him sufficient for his costs afterwards is not good 3. The party who recovers by force of this Statute ought to be a party grieved and damnified as the Statute speaks by the not appearance of the Witness and because the Plaintiff hath not averred that he had loss thereby by his not appearance therefore he conceived the Action not maintenable For the first the Court was clearly against him because it is the common course to put divers in one Process and to serve Tickets or to give notice to the first persons who are summoned and to leave the Process it self with the last only and that is the usual course in Chancery to put many in one Subpoena and to leave a Ticket with one and the Label with another and the Writ with the third and that is the common practice and so the Statute ought to be expounded But if there be one only in the Process there the Process it self ought to be left with the party For the second the Court did conceive That the acceptance should bind the Defendant but if he had refused it there he had not incurred the penalty of the Statute For he ought to have tendred sufficient costs according to the distance of the place which 12 d. was not it being 60 miles distant But for the third and last Exception the Court was clear of Opinion That the Action would not lie for want of Averment that the Plaintiff was damnified for the not appearance of the Defendant And so it was adjudged that the Plaintiff Nihil capiat per Billam 44. The Opinion of the Court was That whereas one said of another That he will prove that he hath stollen his Books that the words are actionable for they imply an affirmative and are as much as if he had said That he hath stollen my Books And so if I say of another That I will bring him before a Iustice of Peace for I will prove that he hath stollen c. although the first words are not actionable yet the last are Molton against Clapham 45. THe Defendant upon reading Affidavits in Court openly in the presence and hearing of the Justices and Lawyers said There is not a word true in the Affidavits which I will prove by forty Witnesses and these words were alledged to be spoken maliciously And yet the Court was clear of Opinion that they will not bear Action And the reason was because they are common words here and usual where an Action is depending betwixt two for one to say That the Affidavit made by the other is not true because it is in defence of his cause And so it was here The Defendant spake the words upon the reading of the Affidavits in a cause depending betwixt the Plaintiff and the Defendant And therefore if I say That J. S. hath no Title to the Land if I Claim or make Title to the Land Or if I say That J. S. is a Bastard and entitle my self to be right Heir the words are not actionable because that I pretending Title do it in defence thereof And Justice Barckley said That there are two main things in Actions for words the words themselves and causa dicendi and therefore sometimes although that the words themselves will bear Action yet they being considered causa dicendi sometimes they will not bear Action Now in our Case causa dicendi was in his own defence or his Title and therefore they will not bear Action 46. Outlawry was reversed for these two Errors 1. Because it was not shewed where the party Outlawed was inhabitant 2. Because it was shewed that Proclamations were made but not that Proclamation was made at the Parish-Church where c. Buckley against Skinner 47. THere was Exception taken because that the Defendant pleaded and justified the Trespass cum equis and said nothing to the Trespass done porcis bidentibus And the Opinion of the Court was That the Plea was insufficient for the whole And Justice Iones said That if several Trespasses are done to me and I bring Trespass and the Defendant justifie for one or two and sayeth nothing to the other that the whole Plea is naught because the Plea is intire as to the Plaintiff and the demurrer is intire also But Justice Barckley was of Opinion that the Plea was naught quoad c. only and that Judgment should be given for the other Vide 11. Rep. 6. b. Gomersall and Gomersalls Case 48. A man pleaded a descent of a Copy-hold in Fee The Defendant to take away the descent pleaded That the Ancestor did surrender to the use of another absque hoc that the Copy-holder died seised And the Opinion of the Court was That it was no good traverse because he traversed that which needed not to be traversed for being Copy-hold and having pleaded a surrender of it the party cannot have it again if not by surrender Like the Case of a Lease for years Helliers Case 6 Rep. 25. b. For as none can have a Lease for years but by lawful conveyance so none can have a Copy-hold Estate if not by surrender But if a man plead a descent of inheritance at the Common Law there the defendant may plead a feoffment made by the Ancestor absque hoc that he died seised because he may have an estate by disseism after the feofment Traverse of the descent and not of the dying seised is not good so was it adjudged in this Court Vide 24 H. 8. Dyer 49. It was moved in Arrest of Judgment upon an Action of Trespass upon the Statute of 2 E. 6. cap. 13. because that the Plaintiff said that the Defendant was Occupier only and did not shâ—w how he occupied or what interest he had And the 〈◊〉 â—pinion of the Court was that he need not because here he makes no Title and whosoever it be that taketh the Tithe is a Trespasser And therefore Justice Iones said That it was adjudged in this Court that an Action lieth against the disseisor for the Tithes so against a servant and so if one cut them and another carry them away an Action lieth against any of them 50. The Parish of Ethelburrow in London alledged a custome that the greater part of the Parishioners have used to
therefore iâ— the King be deceived either in point of profit or in point of Title his Grant is void 9 H. 6. Where he is not deceived in point of profit he shall not avoid the Grant 26 H. 8. The second reason That a Deed ought to be construed Vt res magis valeat quam pereat 34 H. 6. A man having a Reversion deviseth his land in Manibus thereby the Reversion passeth 9 E 4. 42. Release of all Actions against Prior and Covent shall be construed and intended all Actions against the Prior only for an Action cannot be brought against the Covent Farther by this construction you would avoid this deed and by the Rule of Law the deed and words of every man shall be taken very strong against himself ut res magis valeat as is said before And it is against reason to conceive that it was the meaning of the parties that nothing should pass A third reason was because the grant was a distinct clause of it self And the words which were objected at the Bar to be restrictive were in another distinct clause and therefore shall not restrain that which was before for words restrictive ought to be continued in one and the same sentence Wherefore they having granted all their Tithes in Chesterton by one clause the false recital afterwards in another clause shall not make the grant void See 3 4 Eliz. Dyer in Wast 31 Eliz. the Lord Wenworths Case in the Exchequer upon this Rule of distinct clauses And Atkins and Longs case in the Common Pleas upon which cases Justice Iones did rely The fourth reason was That construction ought to be made upon the whole Deed And it appeareth by the context of the Deed That it was the meaning of the parties to grant the Tithes by the Deed. Further the Exception of the four things sheweth That it was the meaning of the parties to grant all things not excepted as the Tithes in this Case For exceptio firmat Regulam And to what purpose should the Exception be if they did not intend to pass all other things not excepted See 4 Car. Hâ—skins and Trâ—ncars Case Sir Robert Napwiths Case 21 Iac. cited by the chief Jâ—â—tice to that purpose Wherefore it was agreed by the whole Court that Judgment should be given for the Defendant And the Opinion of the Court was clear also That although some of the Tithes had been in the Tenure of Margaret Petâ—e that yet the grant was good And that was after Argument upon the Demurrer to avoid all scruples to be after made by Counsel because it was conceived That some of the Tithes were in her Tenure Crisp against Prat in Ejectione firme 67. THe Case upon the four Statutes of Bankrupts viz. 34 H. 8. 13 Eliz. 1 Iac. and 21 Iac. was thus Ralph Brisco 9 Iac. purchased Copyhold to him and his Son for their lives the Remainder to the Wife in Fee 11 Iac. he became an Inholder and about twelve years after a Commission of Bankrupt is obtained against him And thereupon the Copyhold-land is sold by the Commissioners to the Defendant Ralph Brisco dieth and his Son Iohn Brisco entred and made the Lease to the Plaintiff The Defendant entred upon him and he brought an Ejectione firme And Judgment was given upon solemn argument by the Justices for the Plaintiff The first point was Whether an Inholder be a Bankrupt within these Statutes And it was resolved by all the Justices viz. Iones Crook Barckley and Bramstone chief Justice that an Inholder quatenus an Inholder is not within these Statutes Justice Barckley and Justice Iones one grounded upon the special Verdict the other upon the Statutes did conceive That an Inholder in some cases might be within these Statutes Justice Barckley did conceive upon this special Verdict that this Inholder was within them because it is â—ound That he got his living by buying and selling and using the Trade of an Inholder And he conceived upon these words Buying and selling in the verdict and getting his living thereby although that the Jury have also found him an Inholder that the same is within the Law And he agreed That he who liveth by buying or selling and not by both is not within the Law but in our case the Jury have found both And it hath been adjudged That he who buys and sells cattle and stocks his ground with them that he may be a Bankrupt within those Statutes I agree that a Scrivener was not within 13 Eliz. for he doth not live by buying and selling but by making use of the monies of other men but now he is within 21 Iac. But in our case the Inholder buys his grass hay and grains and provision also for his Guests and by selling of them he lives But he agreed That if the Jury had found that he was an Inholder only and not that he did get his living by buying and selling that in that case he was out of the Law And for these reasons he did conceive That this Inholder as by the special Verdict is found was within the Statutes of 13 Eliz. and 21 Iacobi Justice Iones An Inholder may be or not be within these Laws upon this difference That Inholder who gets his living meerly by buying and selling as many of the Inholders here in London do they are within these Statutes But those who have Lands of their own and have hay and grain and all their provisions of their own as many have in the Country those are not within the Statutes Farther he said That buying and selling doth not make men within these Statutes for then all men should be within the Statutes but they ought to be meant of them who gain the greatest part of their living thereby and live chiefly or absolutely thereby But Bramston chief Justice and Justice Crook were clear of Opinion that an Inholder could not be a Bankrupt neither by the Statutes nor according as it is found by the special Verdict And their reason was because that an Inholder doth not live by buying and selling for he doth not sell any thing but utter it He which sells any thing doth it by way of contract but an Inholder doth not contract with his Guests but provides for them and cannot take unreasonable rates as he who sells may and if he doth he may be Indicted of Extortion which the seller cannot Wherefore they concluded that an Inholder is not within the Statute of 13 Eliz. 1 Iac. Justice Crook remembred these Cases Webb an Inholder of Vxbridge brewed in his house and sold his Beer to his Guests And it was adjudged in the Exchequer that it was not within the Statute of Brewers And Bedells Case who being a Farmer bought and sold cattle and adjudged that he was not a Bankrupt within these Statutes And he put thâ—se cases upon this reason That where the Statutes said Get their living by buying and selling that it ought to bâ—â—or the greater part that they gain
doubted thereof and did conceive that no costs should be given in this case and that upon Pilfords case 10 Rep. As to the Presidents he said that they did not bind him for perhaps they passed sub silentio And afterwards it was adjorned Johnson against Dyer 96. IN an Action upon the Case for words the Defendant having speech with the Father of the Plaintiff said to him I will take my Oath that your Son stole my Hens For which words the Plaintiff brought the Action But did not aver that he was his Son or that he had but one Son And it was holden by the whole Court Crooke being absent that the plea was not good Leake and Dawes Case 97. LEake brought a Scire facias in the Chancery against Dawes to avoid a Statute and the Case as it was moved by Serjeant Wilde was such Hopton acknowledged a Statute to Dawes and afterwards conveyed part of the Land liable to the Statute to I. S. who conveyed the same to Leake the plaintiff and afterwards the Conusor conveyed other part of the Land to Dawes the Defendant who was the Conusee by bargain and sale the Conusee extended the Lands of Leake the Purchaser who thereupon brought this Scire facias to avoid the Statute because that the Conusee had purchased parcel of the Land liable to the Statute and so exâ—inguished his Statute And this case came by Mittimus into the Kings Bench. And here it was moved by Serjeant Wilde for Dawes the Defendant in arrest of Judgment And taken by him for Exceâ—â—ion That the bargain and sale is alledged to be made to Dawes but it is not shewed that it was by Deed inrolled but yet it is pleaded That Virtute cujus viz. of Bargain and Sale the Conusee was seised and doth not shew that he entred And here it was said by the Court There are two points First Whether an Inrolment shall be intended without pleading of it Secondly Admitting not what Estate the Bargaineâ— hath as this Case is As to the first Justice Iones took this difference Where a man pleads a bargain and sale to a stranger and where to himself In the first case he need not plead an Inrolment but contrary in 〈…〉 Barckley agreed it and took another difference betwixt a Plea in Bar and a Count In a Count if a man pâ—â—ad a grant of a Reversion without attorâ—ment it is good contrary in Bar so in this Case The second question is admitting that the Deed shall be intended not to be inrolled without pleading What estate Dawes the Conusee hath before Entry the Deed not being inrolled For it was agreed by the whole Court That if he be a disseior or if he hath but an estate at will that the Statute is suspended And first whether he hath an estate at will at the common Law or not without Entry Barckley that he had But Iones and Bramston contrary and it seemed that he had an estate at will by the Statute And put the case of feoffment in Bucklers case 3. Rep. Where the Feoffee entreth before Livery that he hath an estate at will and Barckley agreed therein with him for the possibility of inrolment But Iones conceived that an estate at will could not be executed by the Statute And it was adjorned Curtisse against Aleway 98. THe Case was thus A woman was dowable of certain Land within the Jurisdiction of the Council of the Marches of which I. S. died seised She accepted a Rent by parol of the Heir out of the same Land in satisfaction of her Dower And afterwards there was a Composition betwixt them for defalcation of that Rent Afterwards there was an Action brought before the Council of the Marches for the Arrerages of the Rent where the question was Whether the Rent were in satisfaction of her Doweâ— or not and it was moved by Moreton for a Prohibition And it was granted by the Court because the same did concern Freehold of which they have not Jurisdiction for by the express Proviso of the Statute of 34 H. 8. of holding of plea of Lands Tenements Hereditaments or Rents But because that it appeared by the Bill that the woman was dead so as the realty was turned into the personalty viz. into Debt And therefore it was conceived by Evers Attorney of the Marches That although it was not within the Jurisdiction before yet being now turned into a personal Action that they have Jurisdiction But Iones and Barckley Justices were of a contrary Opinion and Iones said That an Action of Debt for Arrerages would not lie before them because it touched the realty which was denied by none but Evers Attorny Edwards against Omellhallum 99. IN a Writ of Error to reverse a Judgment given in Ireland in an Ejectione firme the Case was this as it was found by special verdict A Mortgager made a Lease for years by Deed indented and afterwards performed the Condition and made a Feoffment in Fee the Lessee entred upon the Feoffee who re-entred and the Lessee brought an Ejectione firme And the only question as it was moved by Glynn was Whether this Lease which did inure by way of Estople should binde the Feoffee or no and by him it did and Rawlyns case in the 4 Rep. 53. expresly and 1 2 Phil. Mar. Dyer agreeth And the whole Court Crooke only absent without any argument were clear That it should binde the Feoffee for all who claim under the Estople shall be bound thereby vid. Edriches case 13 H. 7. 100 Serjeant Iermayn came into the Court and shewed cause why a Prohibition should not be granted in the case of Skinner before who Libelled for Tythes of Coppice rooted up He agreed that for timber-trees above the growth of twenty no Tithes should be paid and so he said was the common Law before the Statute of 45 E. 3. which was but a confirmation of the Common Law And he said That as the body of the tree is priviledged so are the branches and root also which is a proof that where the body is not priviledged there neither shall be the root â—or branches And in our Case he Libels for roots of underwoods and the underwood it self being titheable therefore the roots shall be also tithable And he said that the 〈…〉 are not parcel of the Land But Justice Barckley was against it for they are not crescentia nor renovantia as Tithes ought to be and therefore no Tithes ought to be paid for them and he said that a Prohibition hath many times been granted in the like cases But Dr. Skinner did alledge a custome for the payment of Tithes of them And upon that they were to go to trial And here it was said that Dr. Skinner had used to have some special particular benefit of the Parishioners in lieu of Tithe of Roots And thereupon Barckley said That it is a Rule where the Parishioner doth any thing which he is not compellable by the Law to do
breach in non faciendo and saith that he is ready to do the thing which he promised but that the other refused to accept of it Notwithstanding the breach is well laid and the Action well lieth for it was idle and more than the Plaintiff was compelled to do to shew that paratus est to do the thing which he promised So that if there were a breach upon the part of the Defendant it is sufficient and if there was a breach on the Plaintiffs part the Defendant ought to bring his Action for it And the difference was taken by Bramston Where the promise is conditional and where absolute as in our case And agreeing with this difference it was said at the Bar and Bench That it was adjudged 115. Hutton moved to quash certain Presentments because they were taken in a Hundred-Court which is not the Kings Court and therefore coram non Iudice It was said by Justice Iones That a Hundred may have a Leet appendant to it and then they were lawfully taken Barckley and the whole Court answered because it doth not appear to the Court whether there was so or not that the Presentments were void 116. Concerning damage clear It was agreed that it was hard that the Plaintiff should be stopt of his Judgment until he had paid his damages clear For perhaps if the Defendant be insolvant the Plaintiff should pay more for damages clear than he should ever get And therefore the Court was resolved to amend it This damage clear is twelve pence in the pound of the damages given to the party in this Court and two shillings in the Common pleas See the Register where is a Writ for damage clear Harris against Garret 117. IT was agreed by the whole Court that it is no good plea to say That such an one was bound in a Recognisance and not to say per scriptum obligat ' and to conclude that it was secundum formam Statuti doth not help it But in a Verdict it was agreed to be good And according to this difference it was said by the Court That it was adjudged in Goldsmiths case and Fulwoods case 118. It was agreed by the Court that upon a Certiorari to remove an Indictment out of an Inferiour Court that the Defendant shall be bounden in a Recognisance to prosecute with effect viz. to Traverse the Indictment or to quash it for some defect And if he doth not appear an Attachment shall issue out against him Iustice Crooks Case 119. IT was agreed by the Court That although a Bill be preferred in the Starchamber against a Judge for Corruption or any other for any great misdemeanour yet if the Plaintiff will tell the effect of his Bill in a Tavern or any other open place and by that means scandalize the Defendant that the same is punishable in another Court notwithstanding the suit dependant in the Starchamber And so Iones said that it was adjudged in a Bill in the Starchamber against Justice Crooke which was abated because it was brought against him as Sir George Crooke only without addition of his Office and Dignity of Judge Trinit 16º Car ' in the Common Pleas. 120. AN Apothecary brought an Action upon the Case upon a promise for divers Wares and Medicines of such a value and shewed them in certain The Defendant pleaded in Bar that he had paid to the Plaintiff tot tantas denarior ' summas as these Medicines were worth and doth not shew any sum certain And the plea was holden to be no good plea wherefore Judgment was given for the Plaintiff 121. A Contract was made betwixt A. and B. Mercers That A. should sell to B. all his Mercery Wares and take his Shop of him In consideration of which A. promised that he would not set up his Trade in the same Town And adjudged a good Assumpsit in the Kings Bench as Littleton Chief Justice said But if one be bound that he will not use his Trade it is no good Bond. 122. Rolls moved this Case A Writ of Error was brought upon a Judgment given in Yarmouth and the Case was thus A. and B. were bound to stand to the Arbitrament of I. S. concerning a matter which did arise on the part of the wise of B. before coverture I. S. awarded That A. should pay to B. and his wife ten pounds at a place out of the Jurisdiction And thereupon upon an Action brought upon the Bond a Breach was assigned for not payment of the mony at the place And here it was objected That it was Error because it was there assigned for Breach the not payment of the mony at a place out of Jurisdiction and for that cause the Judgment was not well given Secondly because that the Award was That payment should be made to B. and his wiâ—â— which was out of the Submission But notwithstanding Judgment was affirmed by the whole Court. For as to the 〈◊〉 issue could not be taken upon payment or not payment oâ— of the Jurisdiction because it was not Traversable As 〈◊〉 the second the Controversie did arise by reason of the wiâ—e and therefore the Award was within the Submission beiâ—â— made that the payment should be to both 123. It was said by the Court that it was one Kellway Case adjudged in this Court That a Promise made to an Atturny of this Court for Solliciting of a Cause in Chanceâ—â— was good and that it was a good consideration upon whiâ—â— the Atturny might ground his Assumpsit For it was resâ—â—ved That it was a lawful thing for an Atturny to Sollicite 124. The Court would not give way for Amendments Inferiour Courts 125. By Iones and Barckley Justices If there be an insufficient Bar and a good Replication after a Verdict theâ—â— shall be a Repleading Contrary where there is no Verdict Smithson against Simpson 126. A. And B. were bound to stand to and observe suâ—â— Article Agreement Order or Decree as thâ— Kings Council of the Court of Request should make A brought an Action upon the Bond against B. and pleaded that the Kings Councel of the Court of Request made such Order and Decree and that the Defendant did not observe it The Defendant pleaded That the King and his Council did not make the Decree and adjudged by the Court that the Plea was not good 127. Sir Matthew Minkes was Indicted of Manslaughter and found Guilty And it was moved by Holâ—orne of Counsel with Sir Matthew that the Iudictment was insufficient because there was dans c. without adtunc ibid. according to Presidents as also because it was plagam sen contusionem which is incertain as also that the party killed languebat à pred' 15 die usque decimam sextam And he said That there was no time between those two days but it ought to have been That he languished from such an hour till such an hour and that he said were the ancient Presidents And he said That an Indictment that A.
cannot question the whole life of the Witness as that he is a Whoremaster c. But if he hath done such a notorious fact which is a just exception against him then they may except against him That was Onbies case of Grays-Inn and by all the Judges it was agreed as before And by Reeve Justice If a Counsellor say to his Client that such a Contract is Simony and he saith he will make it Simony or not Simony And thereupon the Counsellor that a Simoniacal Contract it is no offence in the Counsellor Pasch. 17º Car. in the Kings Bench. 137. PRescription to have Common for all his cattle Commonable is not good for thereby he may put in as many beasts as he will But a Prescription to have Common for his cattle commonable levant and couchant is a good Prescription And it was said that that was Sayes case of the County of Lincoln adjudged in this Court 138. In Tompson and Hollingsworths case it was agreed That a Court of Equity cannot meddle with a cause after it hath received a lawful Trial and Judgment at the Common Law although that the Judgment be surreptitious 139. The Statute of 31 Eliz. enacts That if a man be presented admitted instituted and inducted upon a Simoniacal contract that they shall be utterly void c. Whether the Church shall be void without deprivation or sentence declaratory in the Spiritual Court or not was the Question in a Quare impedit brought by Sir Iohn Rowse against Ezechiel Wright Rolls and Bacon Serjeants That it is absolutely void without sentence declaratory c. Where the Statute makes a thing void it shall be void according to the words of the Statute unless there shall be inconvenience or prejudice to him for whom the Statute was made The Statute of 8 H. 6. cap. 10. That an utlagary shall be void if process do not issue to the place where the party is dwelling yet it is not void before Errour brought The Statutes of 1 Eliz. 31 Eliz. That all Leases by a Bishop not warranted c. shall be void They are not void but voidable only which agreeth with the reason of the Rule given before The Statute of 18 H. 6. 6. That if the King grant Lands by Patent not found in the Office that the Patent shall be void it is void presently M. 30 H 6. Grants 92. and Stamford 61. although they be matter of Record The Statute of 31 Eliz. is expresly that it shall be void frustrate and of none effect therefore by the Rule before given it shall be absolutely void M. 10 Iac. Stamford and Dr. Hutchinsons case Resolved that an Incumbent presented by Simony cannot sue for Tythes against his Parishioners a villain purchaseth an Advowson the Church becomes void the Lord presents by Simony and the Clark is admitted Institute and Inducted yet it is void and doth not gain the Advowson to the Lord. Institut 120 a. If an Incumbent take a second Benefice the first is meerly void 4 Rep. Hollands Case The difference is where it is of the value of 8 l. where not And there is difference betwixt avoidance by Statute and avoidance by the Ecclesiastical Law Avoydance is a thing of which the Common Law takes notice and shall be tried by Jury if it be avoydance in fact if an avoydance in Law by the Judges If a Parson doth not read the Articles according to the Statute of 13 Eliz. it is ipso facto void without sentence 6 Rep. 29. Greens case 30 Eliz. Eatons case Instit. 120. a. express in the point And the difference is that before the Statute of 31 Eliz. it was only voidable by deprivation but now by the Statute it is absolutely void Mich. 9 Iac. Cobbert and Hitchins case Mich. 42 Eliz. Baker and Rogers case 2 Iac. Goodwins case in Com' Banc. in all which cases it was not resolved but passed tacitely and without denial That a Presentation by Simony was void without declaratory Sentence It was objected that it is clear by the Ecclesiastical Law it is not void without a Sentence declaratory It is answered Of things of which our Law and the Ecclesiastical Law take conusance we are only to relie upon our Law and not upon the Ecclesiastical Law especially when the Ecclesiastical is repugnant or contrary to our Law as in this Case it is The Judges of the Common Law shall judge the Church void or not void Fitz. Annuity 45. 12 13 Iac. in the Kings Bench Hitchin and Glovers case in an Ejectione firme In this case it was resolved That if I. S. marry two wives the Judges of the Common Law may take conusance of it yet marriage is meerly an Ecclesiastical thing It was objected That the first branch of the Statute of 31 Eliz. that it shall be void c. Secondly that it shall be void as if he were naturally dead c. So that the adding of these words as if he were naturally dead in the later clause prove that it was the meaning of this Statute that it should not be void in the first case without Sentence declaratory It is answered There is a difference in words not in substance or the intent qui haeret in litera c. Iermin and Taylor Serjeants That it is not void before Sentence c. First Admission Institution and Induction are Judicial acts and done by the Bishop and therefore shall not be void before an act done to make them void which is Sentence declaratory or deprivation Secondly the Statute of 31 Eliz. saith it shall be void not that it is c. Thirdly the Ecclesiastical Lâ—w is That no Presentation c. shall be void before Sentence c. Fourthly the Ecclesiastical Law is Judge of it c. Plenarty shall be tried by the Bishop not by Jury 6 Rep. 49. a. Refusal shall not be tried by Jury but Death shall 5 Rep. 57. 9 H. 7. Profession shall be tried by the Spiritual Court 4 Rep. 71. b 4. vid. 4. Rep. 29. a. the credit which our Law gives to the Ecclesiastical Law It is there put That one was divorced without his knowledge which was said to be a strange case Fifthly the Presentee by Simony doth remain Incumbent de facto although not de jure and that by the words of the Statute which makes the Church void as to the King only not as to the Incumbent without declaratory Sentence and the Church is no more capable to have two Incumbents than a woman to have two husbands There is a difference where the Incumbent presented by Simony is alive the same is not void in facto without sentence declaratory but if he be dead there itis And this difference stands upon the two clauses in the Statute of 31 Eliz. And the Statute of 17 Car. of Election of Burgesses taken notice of Avoidance de facto de jure Trinit 16 Car. in Com. Banc. Ogelbics case One was Presented within the age oâ— twenty
pay to the Plaintiff such costs as shall be delivered by note of the Attorneys hand and it was here adjudged that there needs no averment because it was to be done by a stranger but otherwise it had been if it had been to be done by the Plaintiff himself and by the Justices the only question here is Whether the Attorney shall be taken for a stranger or not Justice Foster that the Defendant ought first to make his election which is to pay either the eight pound which is certain or the costs which shall be delivered by a note of the Attorney Besides here the Attorney is a stranger because the suit is ended and to the Defendant he is totally a stranger and therefore he ought to seek him to have the note delivered to him But notwithstanding he did conceive that as this Case is Judgment ought to be stayed because the Plaintiff hath not well entitled himself to the Action because he hath not averred that there were costs expended in such a suit and in the Case ciâ—ed by Rolls the Plaintiff did aver the costs incertain Justice Crawley it is without question the Defendant hath Election in this case but as this Case is he ought to have notice and if the Case had been such that the Plaintiff himself had been to have delivered the note then without question there ought to be notice and here the Attorney is no stranger but is a servant to the Plaintiff as every Attorney is And I conceive that if the Case had been that the Plaintiffs servant had been to deliver such a note that there notice ought to be given And for want thereof in this Case I conceive that the Judgment ought to be stayed Bankes Chief Justice I doubt upon the different Opinions of my Brethren whether Judgment ought to be stayed or not I agree that the Defendant hath Election in this Case and further I agree that where a thing is to be done by the Plaintiff or Dâ—fendant himself there notice ought to be given but otherwise in Case of a stranger and upon this difference stands our Books as 10 H. 7. and all our Books but the Question here is Whether the Attorney be a stranger or not and I conceive that it is not in the power of the Plaintiff to compel him to bring the note and is all one as a stranger and therefore the Defendant ought to seek the Attorney to deliver this unto him but the Case was adjourned because Justice Reeve was not present in Court 187. A. said to B. Thou hast killed my Brother for which B. ought an Action upon the Case and by Serjeant Whitfield it will not lie because it is not averred that the Brother of the Defendant was dead at the time and if he were not dead then it is no slander because the Plaintiff is not in danger for it 4 Rep. 16. a. Snaggs Case Aâ—â— Serjeant Evers contrary because the words imply that he is dead and besides in the Innuendo it is also shewed that he was â—ead for that is the innuendo C. c. fratrem nuper mortuum But by the whole Court the words are not actionable without averment that he was dead and the Innuendo doth not help it Hobarts Rep. p. 8. Miles and Iacobs Case acc 188. A Frenchman had his Ship taken by a Dunkirk upon the Sea and before that it was brought infra praesidia of the King of Spain it was driven by a contrary wind to Waymouth and there the Dunkirk sold the Ship and Goods to a Lord in Waymouth whereupon the Frenchman having notice of his ship and goods to be there libelled in the Admiralty pro interesse suo against the Lord the Vendee of the Ship shewing that it was taken by Piracie and not by Letters of Mart as was pretended and thereupon a Prohibition was prayed and by Foster a Prohibition ought to be granted for whether the Dunkirk took it by Letters of Mart or as a Pirate it is not material the sale being upon the Land and infra corpus comitatus and so he said it was adjudged in such a case for whether the sale were good or not Non constat Justice Crawley conceived it should be hard that the sale being void if it were taken as a Pirate or by Letters of Mart not being brought infra prâ—sidia of the King of Spain that by this means you should take away the Jurisdiction of the Admiralty but he said he did conceive it more fit for the Frenchman to have brought a Replevin which he said lieth of a Ship or Trover and Conversion and so have had the matter found specially Bankes Chief Justice conceived that there should be a Prohibition otherwise upon such pretence that it was not lawful prize and by consequence the sale void you would utterly take away the Jurisdiction of the Common Law But because there was some misdemeanor in the Vendee the Court would not award a Prohibition but awarded that the buyer should have convenient time given him by the Court of Admiralty to find out the seller to maintain his Title and in the mean time that he give good caution in the Admiralty that if it be found against him that then he restore the ship with damages But note the Court did agree Justice Reeve only absent that if a ship be taken by Piracie or if by Letters of Mart and be not brought infra praesidia of that King by whose subject it was taken that it is no lawful prize and the property not altered and therefore the sale void and that was said by the Prâ—ctoâ— of the Frenchman to be the Law of the Admiralty Rudston and Yates Case 189. RVdston brought an Action of debt upon an Obligation against Yates for not performance of an Award according to the Condition of the Bond the Defendant pleaded that the Arbitrators Non fecerunt arbitrium upon which they were at issue and found for the Plaintiff and it was now moved in arrest of Judgment by Trevor that the Defendant was an Infant and therefore that the submission was void and by consequence the Bond which did depend upon it and he conceived the submission void First because it is a Contract and an Infant cannot contract and he took a difference betwixt acts done which are ex provisione legis and acts done ex provisione of the Infant an Infant may bind himself for his diet schooling and necessary apparel for that is the provision of the Law for his maintenance but a Bond for other matters or Contracts of other nature which are of his own provision those he cannot do Secondly an Arbitrator is a Judge and if an Infant should be permitted to make an Arbitrator he should make a Judge who by the Law is not permitted to make an Attorny which were against reason Thirdly it is against the nature of a Contract which must be reciprocally binding here the Infant should not be bound and the man of full
was allowed his priviledge But see Reader 34 H. 6. 29. 35 H. 6. 3. against it And note that many of these cases come to the second point whether he may demand his priviledge at the Exigent or not but for that see 9 E. 4. 35. Br. Priviledge 22. 10 E. 4. 4. Br. Priviledge 40. Rolls Serjeant contrary that the Defendant ought not to have his Priviledge and he said that use practise and reason is against it and he took these differences First where the Defendants are coming to make their appearance and are arrested as in 22. H. 6. 20. and where they are sued in one Court and the husband demands his priviledge because he is an Officer in another Court as in our Case Secondly where he is Defendant and where he is Plaintiff And lastly where he is sued in his own right and where in the right of another as in our Case For in the first of these differences he shall have his priviledge in the latter not and it is to ouste this Court of Jurisdiction and therefore shall be taken strictly Besides if in this Case the Defendant should have his priviledge we should be without remedy for we cannot have a Bill against the wife and we have no remedy to make the wife to appear and therefore it should be a great prejudice to us if he should have his priviledge Wherefore he prayed that the Defendant might not have his priviledge Note that Bankes Chief Justice seemed to agree the differences put by Rolls and also he conceived that point considerable whether the Defendant had not surceased his time in this Case because he demands his priviledge at the Exigent and not before And note the whole Court viz. Foller Reeve Crawley and Bankes Chief Justice seemed to incline that the Defendant should not have his priviledge because that the Action was brought against him and his wife in auter droit viz. in the right of the wife as Executrix but no Judgment was then given Hillary 17º Car ' in the Common Pleas. Moss and Brownes Case 220. MOsse exhibited a Bill in the Court of Requests against Brown and in his Bill set forth that the Defendant was indebted unto him in the sum of 400 pounds for wares delivered to him and further he shewed how that the Defendant was decayed in his estate and was not able to pay him and therefore he was content to accept of an hundred pound for the whole and that the Defendant at the payment of the said hundred pound required the Plaintiff to give him a general release and then promised him in consideration that he would make him a general release that he would pay to him the residue of his debt whensoever God should please to make him able and the defendant divers times afterwards did renew his promise with the Plaintiff Further he shewed that now a great estate to such a value is fallen to the Defendant and that now he is able to pay him and notwithstanding refuseth so to do which is the effect of the Plaintiffs Bill To that the Defendant answered and pleaded the Statute of Limitations of Actions and the Court of Requests would not admit this Plea But note the Defendant pleaded first the general issue that he made no such promise upon which they were at issue and found against him and afterwards he pleaded the Statute of Limitation and upon the whole matter Serjeant Clarke moved for a Prohibition First because the Bill is in the nature of an Action upon the Case at the Common Law and whether he promised or not promised is triable at Law Secondly because the Court refused the â—â—ea of the Statute of Limitations which they â—â—ght not to do because there is no remedy in Equity against a Statute Serjeant Whitfield contrary that no Prohibition ought to be granted First because the Plaintiff hath no other remedy but in Equity because that the Assumpsit made before the release is discharged by the release and the Assumpsit which was after is void because there is no consideration the debt being released before Secondly our case is not within the Statute of Limitations for it is but a trust reposed in the Defendant that he would pay the residue when God should make him able and being a bare trust is not taken away by the Statute of Limitations But he agreed for any Action which is within the Statute and is superannuated that there is no remedy in Equity But in answer to that it was said by Clarke that there is no trust expressed in the Bill But notwithstanding that it was resolved by the whole Court viz. Foster Reeve Crawley Justices and Bankes Chief Justice that no Prohibition ought to be granted for the reasons given before by Whitfield and they said that although no trust be expressed yet if it appeareth upon the whole Bill that there is a trust it is enough and he needs not to express it And note there was an order of the Court of Requests produced by Clarke by which it was ordered That the parties should take issue only upon the subsequent promise and should not meddle with the first which as the Court conceived made the Case a little worse notwithstanding the Court would not award a Prohibition for they said so long as they order nothing against the Law it is good and they ought to be Expositors of their own Orders therefore if it appeareth upon the merits of the Cause and the body of the Bill that they have Jurisdiction of the Cause and proceed as they ought be their Orders what they will it is not material and therefore it was resolved by the whole Court that no Prohibition should be granted in this Case Hill 17º Car. in the Common Pleas. 221. DVdley who was a Parson did libel in the Arches against Crompton for scandalous and defamatory words which words were these Thou meaning the Plaintiff lyest thâ—u art a fool and putting his hand behind him bid him kiss there and further said to him Thou hast spent so much a year in drunkenness and Sentence was given for the Plaintiff and now four years after Sentence the Defendant prayed a Prohibition and the Court viz. Foster Reeve Crawley Justices and Bankes Chief Justice were against the Prohibition because the Defendant came too late but if he had come in due time the three Justices did incline that a Prohibition would have lien because that the words are words only of passion and anger and God forbid that all words spoken only in wrangling and anger should bear Action But the Chief Justice inclined that the Defendant was punishable in the Ecclesiastical Court for those words for he said that the suit there is pro salute animae reformatione morum and it was fit that his manners should be reformed who spake such words of a man in Orders and a reverend Minister And he said that although that he held not that where there is no remedy at Law
that there they might sue in the Ecclesiastical Court yet he said that in many cases where there is no remedy at Law yet there is remedy in the Ecclesiastical Court and so he conceived in this Case But that which made Justice Reeve to doubt whether a Prohibition should issue as this Case was or not was for the incertainty of their Sentence which was for speaking of these words contained in the Articles aut eorum aliqua which he said is therefore not good for he said that Judgments or Sentences ought to have these two things Veriâ—y and Certainty and if there want any of these two it is not good and if it should be suffered it were a mischievous case for by this â—ick they might hold Plea of words not within their Jurisdiction and we should not have power to prevent it for if some of the words should be actionable some not they might by this way hold Plea as well of words which were not actionable or punishable by them as of those which were To which Foster agreed but Justice Crawley and the Chief Justice conceived that no Prohibition would lie notwithstanding that for that might be the course amongst them and although it be incertain yet it may be allowed by them for Law and Reeve was of opinion that a man might be indicted at the Assises before the Commissioners of Oyer and Terminer for speaking of such defamatory words and that he grounded upon the Commission of Oyer and Terminer which giveth them power to hold Plea de prolationibus verborum and he conceived that a man might be fined for them But the Chief Justice contrary for the Commission giveth them power to hold Plea secundum legem consuetudinem Angliae Now if the speaking of such words be not punishable by the Law and Custome of England then we cannot hold Plea of them by way of indictment or otherwise at the Assises for them 222. It was said by the whole Court that a bare Information at the Bar is not sufficient to cause the Court to examine any man upon Interrogatories wherefore they ruled that the party should make an Affidavit 223. Judgment was given against the principal and after a Scire facias was brought against the Bail who appeared and pleaded Nul tiel Record of the Judgment given against the principal upon which day was given to bring in the Record in Court at which day the principal tendred his body in discharge of the Bail and now it was prayed by Pheasant Serjeant that it might be admitted but Reeve Foster and Bankes Chief Justice inclined against it True it is that the condition of the Bail is that they render his body indefinitely withoue limiting any time in certain when they shall do it or pay the condemnation but yet they conceived that if they appear and plead such a dilatory Plea as this is that thereby they have waived the benefit of bringing in his body and Justice Foster said that the same being general and uncertain the Law ought to determine a time certain when it shall be done for otherwise by the same reason that they may do it now they may do it twenty years after which should be inconvenient and against the meaning of the condition And Reeve said that if this trick should be suffered that the Bail might plead such a dilatory Plea and afterwards bring in the body of the Principal the Plaintiff should lose all his costs of suit which he had expended in the suit against the Bail which would be mischievous But Justice Crawley that the usage hath always been that the Bail might bring in the body of the Principal at any time before judgment given against them upon the Scire facias and there are many presidents in this Court to that purpose To that the Court seemed to agree if they plead not such a dilatory Plea as in this case Therefore the Court awarded that the Pronotharies should consider of it and should certifie the Court what the use hath been in such case 224. Serjeant Pheasant came to the Bar and said to the Court that antiently as appeareth by our old Books the usage was that the Serjeants in any difficult point of pleading did demand of the Court their advise concerning it â—nd accordingly were used to be directed by the Court wherefore he humbly prayed of the Court to be resolved of this doubt A man was imprisoned for not submitting to Patentees of a Monopoly after seven or eight years past and then he brought an Action of false Imprisonment and that is grounded upon the Statute of Monopolies 21 Iac. c. 3. whether in this case the Defendant might plead the Statute of 21 Iac. c. 16. of Limitations of Actions or not was the Question But the whole Court was against him that they cannot be Judges and Counsellors and that they ought not to advise any man for by that means they should prevent their Judgment and they confessed that that was the use when the Serjeants used to count at the Bar as appeareth in our Books But they said you shall never find the same to be used since they counted and declared before they came to the Bar and these Counts and Declarations are upon Record wherefore the Court upon these considerations would not advise him Dewel and Masons Case 225. THis Case of Dewel and Mason which see before pl. 184. came now again in debate and it was adjudged by the whole Court viz. Foster Reeve Crawley Justices and Bankes Chief Justice nullo contradicente that the Plaintiff ought to have Judgment and that upon these differences First where the Defendant is to do a single Act only and where he hath election of two things to do Secondly the second difference stood upon this that no notice is to be given or tender made of a thing which lieth not in the power or proper conusance of the Plaintiff so as the difference stands where it is a thing which lies in the conusance of the Plaintiff and where not and therefore where the award was that the Defendant should pay to the Plaintiff eight pound or three pound and costs of suit as should appear by a note under the Attorneys hand of the Plaintiff it was resolved in that Case that although the Attorney be in some respect as a servant to his Master yet to this purpose he is a meer stranger and therefore the Plaintiff was not bound to make any tender of that note but the Defendant ought to have gone to the Plaintiffs Attorney and required a note of him of the costs of suit so as he might have made his Election But they all agreed that where it is a thing which lieth in the knowledge of the Plaintiff that there he ought to have made a tender or given notice but in this Case it lieth not in the knowledge of the Plaintiff and he cannot compel the Attorney to make it wherefore it was resolved that the Plaintiff should have
the Father was seised of the said services by the hands of the said Anthony Cage and Dorothy his wife and Thomas Grange and Thomasine his wife as by the hands of his very Tenants upon which the defendant did demur in Law and shewed for cause of demurrer that the Plaintiff had traversed a thing not traversable and if it were traversable that it wanted form and this Term this Case was debated by all the Judges and it was resolved by them all that the Traverse as it is taken is not well taken Justice Foster that the Traverse taken by the Plaintiff is not well taken at the Common Law the Lord was bound to avow upon a person certain but now by the Statute of 21 H. 8. cap. 19. he may avow upon the Land and this avowry clearly is an avowry upon the Statute for it is infra feodum dominium sua c. and so is the old Entries 565. then the Question here is whether the Plaintiff be privy or a stranger â—or iâ— he he a stranger then clearly at the Common Law he may plead no plea but out of his Fee or a Plea which doth amount to so much as appeareth by the Books 2 H. 6. 1. 17 E. 3. 14 15. 34 E. 3. Avowry 257. and many other Books as you may find them cited in the 9 Rep. 20. in the case of Avowry here it doth not appear but that the Plaintiff is a stranger and therefore whether he be inabled by the Statute of 21 H. 8. to take this traverse or not is the Question and I conceive that he is true it is as it was objected that this Statute was made for the advantage of the Lord but I conceive as it shall enable the Lord to avow upon the Land so it shall enable the Tenant to discharge his possession as if the avowry were upon the very tenant and so is the Institutes 268 b. and so is Brown and Goldsmiths case in Hobarts Rep. 129. adjudged in the point and the Plaintiff here who is a stranger is in the same condition as a stranger was at the Common Law where the Avowry was made upon the Land for a Rent-charge in such case he might have pleaded any discharge although he were a meer stranger and had nothing in the Land so may he now after the Stat. of 21 H. 8. Then admitting that the Plaintiff might take this Traverse by the Statute then the Question is whether the Plaintiff hath taken a sufficient Traverse by the Common Law or not for the Statute saith that the Plaintiff in the Replevin or second deliverance shall have the like Pleas as at Common Law and I conceive that this plea is not a good plea at the Common Law And now I will consider whether if the Plaintiff had been a very Tenant he might have pleaded this plea or not and I conceive that if this traverse had been taken by a very tenant it had not been good I agree the 9 Rep. 35 Bucknels case that Ne unque seisie of the services generally is no good plea but Ne unque scisie of part of the services is a good plea and so is 16 E. 4. 12. 22 H. 63. and the reason that the first Plea is not good is because that thereby no remedy is left to the Lord neither by avowry nor by writ of customs and services And therefore the plea here is not good because it is a traverse of the services generally Besides here the traverse is not good because that the Plaintiff hath traversed the seism and hath not admitted the tenure and it is a rule in Law that no man may traverse the seism of services without admitting a tenure and therewith agreeth 7 E. 4. 28. 20 E. 4. 17. 9 Rep. Bucknells case and then if the very tenant could not have taken this traverse much less a stranger here Further here the tenure was alledged to be by rent and fealty and the avowry was for the fealty and the Plaintiff hath traversed the seism as well of the rent which is not in demand as of the fealty and therefore the traverse is not good But it was objected that seism of rent is seism of fealty and therefore of necessity both ought to be traversed I agree that seism of rent is seism of fealty but it is no actual seism of the fealty in point of payment or to maintain an assise for it as is 44. E. 3. 11. 45 E. 3. 23. and the distress here is for actual seism of fealty Every traverse ought to be adidem as 26 H. 8. 1. 9 Rep. 35. but here the traverse is of the Rent which is not in question therefore is not good in matter of form Wherefore he gave Judgment for the avowant Justice Reeve the first thing here coâ—siderable is whether this be a conusance at the Common Law or upon the Statute and I hold clearly that it is within the Statute and for that see new Entries 597 599 27 H. 8. 20. and it is clear that the Lord hath Election either to avow upon the Statute or at the Common Law and that is warranted by Institutes 268. and 312. 9 Rep. 23. b. 36. a. 136. a. and then admitting that it be an avowry upon the Statute The second point is whether the Plaintiff be inabled by the Statute to take this traverse or not for it is clear that at the Common Law the Plaintiff could not have this Plea for a stranger could not plead any thing but hors dâ—â—son fee or a plea which did amount to as much I agree the Books of Br. Avowry 113. 61. 9 Rep. 36. 27 H. 8. 4. â—0 Br. Avowry 107. Instit. 268. which are against me yet I conceive undâ—r favour that notwithstanding any thing that hath been said that the Plaintiff is not enabled by the Statute to take this traverse and I ground my Opinion upon the Reason at Common Law as also upon the Statâ—â—e the first reason at the Common Law I ground upon the Rule in Law res inter alios actâ— alteri nocere non debet it is not reason that he who is a stranger shall take upon himself to plead to the Title of the Tenure with which he hath nothing to do in prejudice of the very Tenant and this reason is given by the Books of 22 H. 6 39 E. 3. 34. My second reason is grounded upon the maxime in Law which is That in pleading every man ought to plead that which is pertinent for him and his Case And that 's the reason that the Incumbent at the Common Law cannot plead to the right of the Patronage wherein he hath nothing but the Patrou shall plead it as appeareth by the 7 Rep. 26. and many other Books there cited and these are my reasons at the Common Law wherefore the Plaintiff being a stranger cannot plead this Plea Secondly I ground my self upon the purvieu of
the Statute to prove that the Plaintiff cannot plead this plea the words of which are That the Plaintiffs shall have such Pleas and Aid-prayers as at the Common Law and if the Plaintiff could have pleaded this Plea by the Statute the Statute would not have enacted that there should be the like Aid-prayers as at the Common Law for if the Plaintiff might plead this plea then there need not any Aid-prayer and as at the Common Law no Aid-prayer was grantable of a stranger to the avowry so neither is it so now and to prove that he cited 27 H. 8. 4. 19 Eliz. New Entries 598. 26 H. 8. 5. against the Institutes 312. a. Besides the Statute gives the like pleas as at the Common Law and therefore no new pleas and that caused me to give those reasons before at the Common Law and if this should be suffered every wrangler by putting in of his cattle should put the Lord to shew his title which would be a great prejudice to him The Statute of 25 E. 3. c. 7. enables the possessor to plead to the title of the Patronage and that it is not till induction if it be against a Common person which he ought to shew otherwise he is not inabled to plead to the title as it is in the 7 Rep. 26. a Dyer fol. 1. b. But note there the Statute enables him to plead to the title which is not so in our Case the general words of the Statute of West 2. have always received construction at the Common Law as appeareth by 18 E. 3. 3. 10. 22 E. 3. 2. 9 Rep. Bucknells case and 11 Rep. 62 63. there you may see many Cases cited which have the like words of reference to the Common Law as the Statute in that Case and there always they have received construction by the common Law the Authorities cited before against me are not against me for they say that the Plaintiff after this Statute may have any answer which is sufficient so clearly by these authorities the answer ought to be sufficient and that is the question in our Case Whether the answer be sufficient or no which as I have argued it is not because the Plaintiff is not enabled to take this traverse by the Common Law and the Statute doth not give any other Plea than at the Common Law 26 H. 8. 6. is express in the point That the Plaintiff being a stranger is not enabled by this Statute to meddle with the tenure wherefore I conceive that the Plaintiff is not a person sufficient within the Statute to take this traverse without taking some estate upon him as in see for life or years c. But for the latter point admitting that the Plaintiff were enabled by the Statute to take this traverse yet I hold clearly that as this case is he hath not pursued the form of the common Law in the taking of it and I agree the rule that the Plantiff cannot traverse the seism without admitting of a tenure and therefore the traverse here is not good because he takes all the tenure by protestation Besides I agree that traverse of seism generally is not good 9 Rep. Bucknells case and I agree that traverse of seism per manus is not good without confessing the tenure for part and here he takes all the tenure by protestation and therefore not good 18 E. 2. Fitz. Avowry 217. is express in the point that the traverse is not good Wherefore I conclude that Judgment ought to be given for the avowant Justice Crawley that Judgment ought to be given for the avowant he held clearly that the avowry is within the Statute and that being within the Statute the Plaintiff is enabled to take this traverse and that he grounded upon the Books of 34. H. 8. Br. Avowry 113. 24. H. 4. 20. 9 Rep. 36. and Hobarts Rep. 129. Brown and Goldsmiths Case Then he being inabled by this Statute to take this plea as a very tenant the Question is Whether the Traverse here per manus be good or not and he held not but he ought to have traversed the tenure as this Case is that the traverse of the seism per manus generally is not good I ground me upon the 9 Rep. Bucknells Case 35. a. and I agree the third rule there put that Ne unque seisie per manus is a good plea but that must be intended where the Plaintiff confesseth part of the tenure which he hath not done in this Case as it appeareth by the fourth rule there taken which is an exception out of the precedent rule upon which I ground my opinion and therefore the traverse here is not good Besides Homage and Fealty are not within the Statute of Limitations and therefore not traversable and if it should be permitted the rule in Bevills Case 4. Rep. 11 12. and Com. 93. Woodlands Case which resolve that they are not traversable should be by this means quite defeated Further in this Case the fealty only is in demand and the Plaintiff hath traversed the seism of the rent as well as of the fealty which is not good I agree the Book in the 9 Rep. Bucknells Case fol. 35. that seism is not traversable but only for that for which the avowry is made if not that seism be alledged of a superior service for which the avowry is not which by the Law is seism of the Inferiour service with which agrees 26 H. 8. 1. 21 E. 4. 64. But in our Case seism is not alledged of a superiour service for which the avowry is not made but of an inferiour viz. of a rent which is inferiour to fealty as the Books are of 21 E. 3. 52. Avowry 115. and 19 E. 4. 224. and which of right ought to be so unless a man esteem and value his money above his conscience and therefore the traverse of the rent which is inferior service and not in demand is not good Besides you cannot traverse the seism of the fealty without the traverse of the seism of the rent because the seism of rent is the seism of fealty and the rent is not here in demand and therefore not traversable and therefore you ought to have traversed the tenure for although it be said that rent which is annual is inferiour to all other services 4 Rep. 9. a. yet it is resolved that the seism of rent is seism of all other services further I conceive that if you avow for one thing you need not to alledge seism of other services 24 E. 3. 17. 50. seemeth to cross the other authorities before cited but I believe the latter authorities Wherefore I conclude that Judgment ought to be given for the avowant Bankes Chief Justice I conceive that it is a plain avowry upon the Statute and therefore I need not to argue it here are two Questions only The first Whether this Plaintiff who is a stranger be enabled by the Statute of 21 H. 8. to plead
paid may inforce a Distribution or not quaere 65. pl. 102. 93. pl. 158. Double Plea Where two things are alleadged and the one of necessity onely or by way of inducement and the party relies onely upon the other that is no double Plea 55. pl. 84. 74. pl. 113. Ejectione Firme Ejectone Firme de uno repositorio nought for the incertainty 96 pl. 166. Ejectione Firme de tanto unius messuagii c. qâ—aâ—tum â—â—at super ripam is nought for the incertainty and so where the Tâ—over of the Jury is such it is nought 97. pl 168. Elegiâ— Upon an Elgit there needs no Liberate otherwise upon a Statute Note the Elegit excepts averia Caruâ—â— 117. pl. 194. Equity Certain special Cases where there shall be remedy in Eqâ—ity where not pa 83. pl. 1â—8 88. pl. 141 90. pl. 145. 93. pl. 159. 99. pl 1â—1 102 pl. 175. 105. pl. 182. 106. pl. 183. 129. pl. 207. Errors In Error to reverse a Judgement in Debt upon an Arbitrament Judgement was reversed first because that in the reference to the Arbitrament there was no word of the submission Secondly because that the entry of the Judgement was considâ—ratum est and per Curiam omitted 7. pl. 16. In an Actâ—on for words Judgement was reversed because that it was averred that the words were spoken inter diversos ligeos and doth not say Cives of the place where they have such an acceptation as also for that the Judgement was Consideratum est and per Curiam Omitted 15 pl 37. In Trespass the Defendant justifies by a special Custom by Vertue of which he did it and doth not say quae est eadem transgressio for which Judgment was reversed 16. pl. 38. Judgment was reversed for want of Pledges 17 pl. 40. Outlawry was reversed because it did not appear where the party outlawed was inhabitant as also for that it did not appear that Proclamations were made at the Parish-church where c. 20. pl. 46. Judgement reversed for the appearance of an Infant by Attorney 24. pl. 53. Oâ—tlawry reversed because the Exigent was Secund. exact ' ad Com' Meum â—bm ' c. 25. pl. 58. A. Wife of I. S. intestate promises to B. to whom Administration was committed that if he would relinquish Administration at the request of C. and permit A. to Administer that A. would c. in Assumpsit by B. he shewed that he renounced Administration and permitted A. to Administer but doth not shew that it was at the request of C. by Barkley Just. it is Error 55. pl. 86. Judgement ought not to be judged erroneous by implication 56. pl. 88. 61. pl. 95. A Writ of Error upon Dower well lies before the Retorn of the Writ of Enquiry of damages but whether a Writ of Error lies in an Ejectione firme before Judgment given upon the Writ of Enquiry quaere 88. pl. 142. Want of Warrant of Attorney for the Plaintiff after Judgment upon nihil dicit is Error and not amendable 121. pl. 201. 129. pl. 209. Writ of Error bearing Teste before the Plaint entered is nought otherwise where is bears Teste before Judgment 140. pl. 112. In an Ejectione firme the Writ was 〈◊〉 armis but it wanted in the Count and whether this is error or amendable or not quaere 140. pl. 213. Escape Upon mean Process if the Sheriff retorn a Cessi and Rescous no Action lies against him for the escape otherwise in case of Execution 1. pl. 1. Estoppel Morgager makes a Lease for years by Deed indented after performs the condition and makes a Feoffment in â—ee the Feoffee claiming undeâ— the Estoppel shall be bound by the Lease 64. pl. 99. If a man bind himself to deliver any thing he is estopped to say that he hath it not 74. pl. 113. Estoppel binds only parties 105. pl. 180. Evidence to an Inquest upon Issues joyned Depositions taken in the Ecclesiastical Court cannot be given in evidence at Law though the parties were dead 120. pl. 198. Executions prayer in execution A second Execution cannot be granted before the retorn of the former 47. pl. 73. Where a man is imprisoned for the Kings Fine and upon a Habeas coâ—pus it is retorned that he is in Execution also for the Damages of the party it ought to be intended at the prayer of the party 5a pl. 80. Executor Administrator An Executor or an Administrator may maintain an Action for any Coâ—tâ—â—ct made to the Testator or Inâ—estate or for any thing which riseth ex contractu 9. pl. 23. Administrator of an Executor shall not sue a Scire Faâ— ' upon a Judgement given for the Testator 9. pl. 24. A Sheriff levies moneys upon a Fâ—â—ri Fas ' and dies Debt will lie against his Executors 13. pl 33. Whether the Executor of a Phâ—llizer shall have the profits of the Writs which are to â—e subscribed with his name or his Successor quaere 90. pl. 147. Expositors of Statutes The Judges are the sole Expositors of Acts of Parliament though they concâ—rn Spiritual matters 90 pl. 148. Extinguishment and Suspension Three covenant joyntly with two severally after one of the covenantors marries one of the covenantâ—es whether the covenant be good or not 103. pl. 176. Fine to the King IF a Carrier spoil the High-ways by drawing a greater weight than is warrantable by the Custom of the Realm he is â—inable to the King 145. pl. 210. Fines of Lands Disseisee levies a Fine to a stranger this doth not give the right to the Disseisor 105 pl. 180. Tenant for life the Reversion to an Ideot an Uâ—cle Heir apparant to the Ideâ—â— levies a Fine and dies Tenant for life dâ—eth the Ideâ—t dies whether the Issue of Uncle who levied the Fire â—â—albe barred by this or not quaere 4. pl. 164. 146. pl. 216. Forcible Entry Restitution cannot be awarded to the Plaintiff if it doth appear that he hath seisin yet the King shall have his Fine and if the Indictment be adtunc adhuc the Defendant keeps the possession forcibly where the Plaintiff was in possession Re-restitution shall be awarded 6. pl. 12. Forgery To forge a Will in writing though without a Seal is forgery within the Statute of 5 Q. ca. 14. Freehold What shall be said a grant of a Freehold to commence at a day to come what not 31. pl. 66. Gardeins of a Church WHere the Custom is for the Parishoners to chuse the Churchwardens the Person by colour of the Cannon cannot chuse one and if the Minister of the Bishop refuse to swear one of them chosen by the Parish a Mandat lies to inforce him to it and if the Parson thereupon doth Libel in the Ecclesiastical Court a Prohibition lies 22. pl. 50. 67. pl. 104. The Gardeins of a Church in London are a Corporation and may purchase Lands to the use of the Church and in the Country they are a Corporation capable to purchase Goods to the
say per scriptum obligatorium and to conclude that it was secundum formam statuti will not help it but in a Verdict it was agreed to be good 76. pl 117. Apothecary brought an action upon the case upon a promise for divers wares medicines of such a value the Desendant pleads in bar that he payed to the Plaintiff tot tantas denariorum summas as the medicines were worth and shews no sum in certain and therefore naught 77. pl. 120. A. and B. were bound to stand to and observe such order and decree as the Kings Counsel of the Court of Requests should make A. brought an action against B. and pleaded that the Counsel of the King of the said Court made such order and decree and that the Defendant did not observe it the Defendant pleaded that the King and his Counsel did not make the decree which is naught 78. pl. 126. Where a bad plea shall be made good by Verdict See Title Verdict 2. If a man plead an affirmative plea as that he hath saved the Plaintiff harmless and doth not shew how it is naught otherwise of a negative plea as non damniâ—icatus c. 121. pl. 200. What shall be said to be an argumentative plea what not 207. pl. 247. Pleas of the Crown Bayliffs endeavour to break open a house to serve an Execution upon the owner who not desisting upon his threats he shot and killed one of them it is not murder but man-slaughter 3 pl. 7. Many notable resolutions upon the Statutes of Winchester and 27 Q. of Robberies 10 pl. 28. Pledges Judgement reversed for want of Pledges 17. pl. 40. In a Replevin brought in an inferior Court and no Pledges de retorno habendo taken by the Sheriff according to the Statute of W. 2. ca. 2. upon the plaint removed into the Kings Bench that Court may find Pledges and that any time before Judgement 46. pl. 72. Presentments in Courts Presentments taken in an Hundred Court were quashed because that it is not the Kings Court and therefore coram â—on judice 75. pl. 115. Priviledge If the Clerk of a Court be elected into any office which requâ—res his personal constant attendance as Churchwarden or the like he shall have his priviledge otherwise not as for watching and warding and the like 30. pl. 65. Ordered by the upper House of Parliament 16 Caroli that onely menial servants or such as tend upon the person of a Knight or Burgess should be priviledged from arrest 92. pl. 157. Debt against a husband and his wife as executrix who are sued to the Exigent and at the retorn of it the husband being an officer in the Exchequer came into Court and demanded his priviledge and whether as this case is he shall have it or not quâ—ere 149. pl. 219. Prohibition A man libelled in the Ecclesiastical Court against one for these words Thou art a drankard and usest to be drunk thrice a week upon which a Prohâ—bition was prayed and granted 6. pl. 11. 66. pl. 103. If the Ecclesiastical Court proceed upon a Canon which is contrary to the Common Law Statute Law or Custom a Prohibition lies 22. pl. 50. 67. pl. 74. Two joynt Tenants of Tythes the one sues in the Ecclesiastical Court without the other or a Feme Covert solely for deâ—amation this is no cause of Prohibition 25. pl. 26. pa. 47. pl. 112. See pa. 93. pl. 112. Upon a Petition to any Ecclesiastical Judge without suit there no Prohibition lies 45. pl. 70. A man is compellable in the Ecclesiastical Court to repair a way which leads to the Church but upon a Libel there to repair a highway a Prohibition lies 45. 70. Tenant in Taâ—l levyed a Fine to the use of himself for life the Remainder in see to I. S. and died the Counsel of the Marches wou'd settle the possession upon the Heir of the Tenant in Taâ—l against the purchasor upon which a Prohibition was granted 51. pl. 79. Libel for Tythes for barren Cattle upon a suggestion that the party had no cattle but for plough and pale Prohibition was granted the same Parson libelled for Tyth of Coneys upon which a Prohibition was also granted 58. pl. 87. No Prohibition after sentence in the Ecclesiastical Court 73. pl. 111 92. pl. 156. Many men recover Costs in the Spiritual Court one of them releases the others sue there for their costs this is no came of Prohibition Baron and Feâ—â—e recover costs there for defaming the wife the Baron releases this will not baâ— the wife 73 pl. 112. See pa 25. pl. â—6 pa. 4â— pl. 〈◊〉 Contract betwixt the Vicar and a 〈◊〉 shiâ—ner to pay so much for 〈…〉 Tythes the Vicar dies his 〈…〉 in the Ecclesiastical Court for them 〈◊〉 on which a Prohibition was granted by reason of the real contract which is a temporal thing 8â— l. 1â—0 Libel in the Ecclesiastical Court for these words 〈…〉 upon which a Prohibition was granted 89. pl. 144. Where the Ecclesiastical Court hath conâ—sance of the cause though they proceed erroneously a Prohibition will not lie 92. pl. 152. See pa. 98. pl. 169. 〈◊〉 The Ecclesiastical Courts may hold plea of an excuse for not going to Church and no Prohibition lies 93. pl. 162. Where there are several Moâ—â—ses there several Prohibitions shall be granted where one Moaâ—s onely though divers parties all shall have but one Prohibition 94. pl. 163. If the Ecclesiastical Court proceed against a man without Citation where they have Jurisdiction no Prohibition lies the remedy is by way of Appeal 98. pl. 169. See pa. 92. pl. 152. 〈◊〉 Legatee may sue an executor in the Spâ—ritual Court for to assent to a Legacy Assets or not Assets may be tried by them and no Prohibition lies 96. pl. 167 A woman Libelled against another for calling of her lade upon which a Prohibition was granted but for Whore or Eawd no Prohibition lies quaere whether or not for Quan 99. pl. 1â—0 If a man be sued in the Court of Requests to account there a Prohibition lies See Title Sâ—â—â—â—stratica 1. 2. A man exhibited a 〈◊〉 in the Court of Requests for moneys due upon an account upon which a Prohibition was granted for that it is no 〈◊〉 than Debt upon an account further they referred the 〈…〉 the 〈◊〉 to â—â—â—ers which 〈…〉 of Prohibition 102. pl. â— 5 〈…〉 If a Ship â—e taken at Sea whether b Letters of Mart or by â—itacy if it be sold infra coâ—pus conitatus and the party Libels against the vendee in the Admiralâ—y a Prohibition lies 110. pl. 188. Upon deciding of Actions in an inferiour Court a Prohibition lies 141. pl. 214. Property In Trover and Conversion for a Hawk if he doth not say that it was reclaimed the Action will not lie for that it doth not appear he had a property in it and to say that he was possessed of it ut de bonis suis propriis will not
help it 12. pl 32. A man brought Trespass for fishing in seperali â—â—sâ—eria sua and declares that the Defendant â—â—â—es ipsius câ—pit and good for that he had a qualified property in them ratione privilegii 48 pl. 77. If a Ship be taken by Letters of Mart and is not brought infra prâ—â—siâ—ia of the King who granted them the property is not altered 110 pl. 118. Quilibet potest renunciare juri pro se introducto AN Orphan may waive the Court of Orphans and sue in Equity for it is a priviledge which the Orphan hath quilibet potest renunciare c. 107. pl. 185. Recital WHere a false Recital shall not avoid a grant 31. pl 66. Grants of the King need not to recite Leases not of Record nor Copyholds 206. pl. 246. Recognizance It is no good plea to say that such a one was bound in a Recognizance and to conclude that it was secundum â—ormam statuti but he ought to say per scriptum obligatorium 76. pl. 117. Records An Order of the Sessions of peace is a Record and therefore the plea of nul tiel Record of Sessions of peace is a good plea. 121. pl. 200. Relation If a man be living at the day of Nisi prius and dies before the day in Bank the writ shall not abate so if a man be living the first day of Parliament and dies before the last yet he may be attainted for that they are but one day by relation 65. pl. 101. Releases Release to a bargainee before inrolment is not good 70. If divers recover costs joyntly in the Ecclesiastical Court and after one of them releases this is no bar to the others in a 〈◊〉 there for their costs so where a baron and feme recover costs there in the right of the wise and the baron releases this shall not bar the wife 73. pl. 112. See Title Prohibition Two men are bound joyntly and severally to a third who sues the bond against both and after appearance enters a Retraxit against one whether this shall amount to a Release so that it shall discharge the other or not quaere 95. pl. 165. Remainder and Reversion The King may grant an office in reversion but not a common person nor a Bishop without Custom 42 43. Remover of Records A. and B. were indicted for a murder B. flies A. brings a Certiorari to remove the Indictment into the Kings Bench whether all the Record be removed or but part quaere 112. pl. 190. Writ of Errour bearing Teste before the plaint entered is naught and the Record is not removed by it otherwise where is bears Teste before Judgement 140. pl. 212. Reparations The inhabitants of a Parish are bound by the Common Law to repair the high-wayes within the Parish except prescription binde any particular persons to it 26. pl. 62. A man is compellable in the Ecclesiastical Court to repair a way which leads to the Church but not a highway 45 pl. 70. Repleader Where there is an insufficient bar and a good Replication after a Verdict there shall be a Repleader contrary where no Verdict 78. 125. Replevin Replevin lies of a Ship 110 pl. 188. Requests A. is bound to B. to deliver to him two hundred weight of Hops and B. to chuse them out of 24 bags c. whether B. is bound to request A. to shew the bags for him to make his election or not quaere 74. pl. 113. Rescous For a Rescous upon mean process no Action lies against the Sheriff otherwise in case of Execution 1. pl 1 Restitution Clerk of a Parish is put out by the Parson without cause no writ of Restitution lies 101. pl. 174. Barrister of one of the Temples was expelled the house whereupon he prayed his writ of Restitution and denied because that there is no body in the Inns of Court to direct unto they being no body corporate 177. pl. 235. Retorn of a Sheriff Sheriff in retorn of a Rescous saith that he was in custodia ballivi itinerantâ—s and that Rescous was made to him the retorn is naught because the Law takes no notice of the Baylie itinerant 92. pl. 153. Revocation The King presents and before institution presents another whether this be a Revocation of the former presentation or not quaere 86. Scire Facias UPon a Judgement in the Kings Bench there ought to be two Scire Faciases one against the principal the other against the Bayle but one only suffices in the Common Pleas and two Nihils retorned amount to a Scire feci 3. pl. 4. A man acknowledgeth a Statute and after grants a Rent the Statute is satisfied the grantee of the Rent may distrain without suingâ—a Scire Facias 124. pl 203. 159. pl 230. 207. pl. 247. Sequestration No Sequestration ought to be granted by a Court of Equity until all the process of contempt are run out the sequestring of things collateral is illegal 81. pl. 130. For sequestring of collateral things a prohibition was granted to the Court of Requests 99. pl. 151. Sewers Divers Exceptions taken to the proceedings of the Commissioners of Sewers upon Certificates of them 123. pl. 202. 191. pl. 241. Resolved upon question and debate that a Certiorari doth lie to remove the proceedings of the Commissioners of Sewers 192. pl. 241 Supersedeas Writ of Errour brought here to reverse a Judgment given in Ireland is a Supersedeas to the Execution 10. pl. 27. A Writ of Error is no Supersedeas of it self without notice 54. pl. 81. Writ of Error is a Supersedeas to the Writ of Enquiry of Damages 88. pl. 142. Tenant at will WHether a bargainee before inrolment or entry shall be a Tenant at will or not quaere 62. pl. 97. 69. 108. Tender The defendant upon an award was to pay to the plaintiff 8 l. or 3 l. costs of suit expended in an action of Trespass betwixt the plaintiff and defendant as should appear by a note under the Attornies hand of the plaintiff c. the plaintiff is not tyed to cause his Attorney to tender the note to the defendant but the defendant ought to seek the Attorney and request it of him 108. pl. 186. 156. pl. 225. Traverse A man pleaded the descent of a Copyhold in see the Defendant to take away the descent pleads that the ancestor surrendred to the use of another absque hoc that the Copyholder died seised the Traverse is naught 21. pl. 48. A man was bound to pay money at such a place in debt brought against him he pleaded that he payed the money at the place this is not traversable 77. pl. 122. Trespass An action of trespass lies upon the Statute of 2 E. 6. against any man that takes the Tythes 21. pl. 49. Trespass for fishing in sâ—perali piscaria of the Plaintiff 48. pl. 77. Trover conversion Trover and conversion lies of a Ship 110. pl 188. Tythes A Vicar cannot have Tythes but by dotation
which cometh to the benefit of the Parson there if he demand Tithes of the thing in lieu whereof this is done that a Prohibition shall be granted And there is another rule That Custom may make that titheable which of it self is not titheable And here he said to Dr. Skinner being then in Court That he had two matters to help him and if any of them be found for him that a Prohibition ought not to be awarded 101. Justice Barckley said That if a man be living at the day of Nisi prius and dieth before the day in Banck the Writ shall not abate So if a man be living the first day of the â—â—rliament and dieth before the last day yet he may be Attainted and the reason is because in the eye and judgment of Law they are but one day by relation which the Law makes 102. There were three Brothers the Eldest took Administration of the goods of the Father and after Debts and Legacies paid the younger Brothers sued the eldest in the Ecclesiastical Court to compel him to distribute the Estate And thereupon a Prohibition was prayed and denied by the Court for they having Jurisdiction of the Principal may have Jurisdiction of the Accessary 103. A. Libelled against B. in the Spiritual Court for these words Thou art a Drunkard and usest to be Drunk thrice a week And upon that 150 Caroli in Easter-Term as you may see before a Prohibition was prayed and granted And now Littleton the Kings Sollicitor came in Court and moved for a Consultation and he said that the Statute of Articuli Cleri gave power unto the Ecclesiastical Court to have conusance of those and the like words Register 49 F. N. B. 51. They may hold plea for defamation as for calling Adulterer or Usurer 13 H. 7. Kellaway 27 H. 8. 14. And he cited many Judgments in the like cases where Prohibitions had not been granted and amongst others this Case Mich. 20 Iac. inter Lewis Whitton Libel in the Ecclesiastical Court for calling him Pander and no prohibition granted And the like Case was for calling another Pimp and no Prohibition granted Justice Iones That a Prohibition should be granted for they have conusance of defamation for any thing which is meerly Spiritual or which doth concern it where they have conusance of the principal else not as in Heresie Adultery and the like but in this Case they have not Conusance of the principal True it is that it is peccatum But if they should punish every thing which is Sin they would altogether derogate and destroy the Temporal Jurisdiction And therefore if I say that another is an Idle man or envious these are deadly Sins and yet they have not Conusance of them And he cited Coltrops Case adjudged in the Common pleas which was our very Case in point and there he said that upon solemn debate it was adjudged That a Prohibition should be awarded Bramston Chief Justice agreed Barckley contrary That a Consultation should be awarded and he said in many Cases although they have Jurisdiction of the principal yet they shall not have Conusance as in the Case of 22 E. 4. tit ' Consultation But he said that the Offence of Drunkenness is mixt and is an offence against the Spiritual and Common Law also and if it be mixt both may hold plea and Adultery and Murder are the common effects of Drunkenness which are offences against both Laws and therefore he shall be punished by both But yet Barckley yielded to the Judgment cited by Iones And therefore the whole Court Crooke being absent was That a prohibition should be awarded 104. Rolls moved this Case The Parishioners of a certain Parish in Devonshire did alledge a Custom to chuse the two Churchwardens of the Parish and they did so the Parson chose another and the Archdeacon swore one of the Church-wardens chosen by the Parish and refused to swear the other but would have sworn him who was chosen by the Parson And because they did refuse him they were Excommunicate Rolls prayed a Mandat to the Archdeacon to compel him to swear the other chosen by the Parish and a Prohibition also by reason of the Excommunication And he cited a preeedent for it which was the case of Sutton-Valence in Kent And the whole Court Crooke being absent inclined to grant them for they said they conceived no difference betwixt London and the Country as to that purpose for as in London they are a Corporation and may take Land for the benefit of the Church So throughout England they are a Corporation and capable to take and purchase Goods for the benefit of the Church And therefore they did conceive there was no difference See the case before the case of the Parish of Saint Ethelborough London 105. Keeling moved to quash an Indictment of Rescous because it is shewed that the Rescous was at W. and doth not shew that W. was within this County and if it was not within the County then it was an Escape and no Rescous And we cannot aver in this case that it was out of the County Farther it was not shewed where the Rescous was so that upon the matter it is no Arrest nor was the Indictment vi armis as it ought to be As to the first the Court strongly inclined that they might well intend it to be within the County because the Indictment says in Com. meo apud W. tent But for the other Exceptions the Indictment was quashed 106. In Trespass of Assault and Battery and Wounding the Defendant pleaded Not Guilty as to the Wounding and pleaded special matter of justification as to the Assault and Battery and found for the Plaintiff and it was moved in arrest of Judgment That the plea was repugnant for Assault and Battery doth imply Wounding and therefore it is repugnant for him to justifie it for it is a confession of wounding But Justice Crooke and Justice Barckley the others being absent were clear that the plea was good for so is the common form of pleading and farther he might be guilty of the Battery and not of the wounding for Crooke said Wounding implied Assault and Battery but not è contra Brookes against Baynton 107. IN a Writ of Error to reverse a Judgment given iâ— the Court of Common pleas in Trespass for assault battery and wounding it was assigned for Error by Maynard That there was variance betwixt the Original and the Declaration for the Original was only of Battery and Wounding of himself and he declared of Battery and wounding of him and his horse also for he said that quendam equum upon which the Plaintiff equitavit percussit its quod cecidit c. and that was not helped by the Statute But Rolls contrary and here is no variance for the alledging of striking of the horse was only inducement to alledge the Battery of himself for he doth not bring the Action for the beating of his horse for it was not alledged