elect him See the Statute of 25 H. 8. That a Canon against Common Law confounds the Roiall Prerogative of the King or Law of God is void and Custome of the Realme cannot be taken away but by act of Parliament See 21 Ed. 4. 44. the Abbot of Saint Albones hath a Charter of the King to be discharged of Collection of tenthes granted by Parliament or Convocation The Clergy grants tythes in Convocation there is a clause in the grant that no one of them who shal be chosen to be collector shal be discharged of collection by colour or force of any Letters Patents and after they return the Abbot of St. Albones Collector who pleads his Letters Patents in discharge of Collector and resolved by the Court that the clause in the grant of tenthes doth not take away the exemption of discharge by the Letters Patents granted And it was resolved that if the Parish clark misdemene himselfe in his office or in the Church he may be sentenced for that in the Ecclesiasticall court to Excommunication but not to Deprivation And after Prohibition was granted by all the court and held also that a Prohibition lyeth as well after sentence as before Trinity 8. Jacobi Common Bench. ON was cited to appear in the Prerogative Court of Canterbury which was out of the Diocesse of Canterbury and upon that he praied Prohibition upon the Statute of 32. H. 8. Which willeth that none shall be cited to appeare out of his Diocesse without assent of the Bishop and Prohibition was granted And yet it was said that in the time of H. 8 and Reigne of Mary that the Arch Bishops of Canterbury had used to cite any man dwelling out of his Diocesse and within any Diocesse within his Province to appeare before him in the Prerogative Court and this without the assent of the Ordinary of the Diocesse But it was resolved by the Court that this was by force of the power Legantine of the Arch-Bishop that as Lynwood saith ought to be expressed in the Prohibition for the Arch-Bishop of Canterbury York Pisa and Reymes were Legati nati and others but Legates a Latere Hillary 1610. 8. Jacobi in the Common Bench. Beareblock against Reade IN an Action of Debt brought by Beareblocke against Reade Administratrix to her Husband upon a Judgement given in this Court The case was this the Plaintiffe had Judgment against the Husband and after sued him to an Vtlagary and upon that he brought a Writ of Errous and removed the Record into the Kings Bench and reversed the Judgement for the Vtlagary But the first Judgment was affirmed and then the Husband acknowledged a Statute and dyed And the Wife took out Letters of Administration and then the Statute is extended against the Wife and all the goods which shee had of the Intestates taken in execution After which Beareblock in the Kings Bench sueth a Scirefacias upon the said Judgment against the said Administratrix to have execution and shee pleads upon that the said Statute in Barre and the extent of that and that more then that shee hath nothing to satisfie and this was adjudged a good plea. And then the Plaintiffe being not satisfied he hrought an action of debt upon the said Judgment in this Court and in Barr of that the Wife pleaded all this matter in Barr as aforesaid upon which the Plaintiffe demurred in Law and the Judges seemed to incline that this was no Barr for though that the Wife hath not any means to aide her selfe or to prevent the extent of the Statute yet it seemed to them that this should not prevent the execution upon the Judgement and that the Wife might have Audita quaerela against the Connusee of the Statute and so to make the extent void It was not argued at this day but the point only opened see 3. Eliz. Dyer 7. H. 6. See Pasche 9. Jacobi the Residue Petty against Evans IN an Ejectione firme brought by the Lessee of a Copy-holder it is sufficient that the count be generall without any mention of the License if the Defendant plead not guilty then the Plaintiff ought to shew the Lycense in Evidence But if the Defendant plead specially then the Plaintiff ought to plead the License certainly in his replication and the time and place when it was made and in this case the Plaintiff replied that the copy-holder by License first then had of the Lord did demise and did not shew what estate the Lord had nor the place nor time when it was made and all the Justices agreed that it is not good For the License is traversable for if a copy-holder without License of the Lord make a Lease for yeares The lessee which enters by calour of that is a Disseisor and a Disseisor cannot maintain an Ejectione Firme and the Defendant cannot plead that the Plaintiff by license did not demise for this is a pregnant negative also it ought to appeare what estate the Lord had for he cannot give license to make a lease of longer time in the Tenancy then he hath in the signiory And for that if he be Lessee for life of a Mannor and he licenses a copi-holder to make a Lease for 21. yeares of a copy-hold and then the Lessee for life dies the license is for that determined though that the copy-holder be of Inheritance for the Inheritance of the Lord is bound by that And for that the Plaintiff replies that the copy-holder by license of the Lord first therefore had made the Lease that is not good by Coke and Walmesley expresly and though that the Defendant confesse the Replication by Implication by pleading Yet this shall not ayd the Plaintiff for that it is insufficiently pleaded which note Hillary 8. Jacobi 1610. in the Common Bench. IN action upon the case upon an Assumpsit the Plaintiff counts that when he such a day at the speciall instance and request of the Defendant lent to the Defendant the same day ten pound And that the Defendant the same day in consideration thereof assumed and promised to the Plaintiff to pay the same summ of ten pound at an other day to come And it was moved in arrest of Judgement that the consideration was too generall and for that the action not maintainable and all the Justices but Foster seemed the consideration was good but Foster it seems was in some doubt of that but Judgement was entred for the Plaintiff according to the verdict And Coke cheife Justice said that such a like action was maintained against Kercher his Chaplain as Executor of his Father and it seems for good Law Legates Case ONe Legate was committed to Newgate Prison for Arrianisme for denying of the Trinity by the high Commissioners and it was moved on the behalfe of Legate to have a habeas Corpus and it was granted and it was said by Coke cheife Justice that the Statute of 5. H. 4. Chapter 10. Inhibits Justices of peace to commit any man to
c. and that the Plaintif was sued there by J. S. and that hee was summoned and upon a nihill returned a capias issued according to the Custome c. And that he being an Officer there did arrest and the Court ruled him to plead the Custome particularly for holding the Court and to prescribe c. And here it is shewn that the Maior is a Justice of Peace And it doth not appear whether he did it as a Justice of Peace or Maior as 14. H. 7 8. A Justice of Peace cannot command his servant to arrest one without a Warrant in writing in his absence And Popham chiefe Justice said That although the Judges knew the Authority of the Maior by which they arrested men yet because it did not appear to them judicially as Judges it must be pleaded And a Justice of Peace cannot command his servant to arrest one if not in his presence which was granted And Fennor Justice said that the servant is not an Officer to the Maior as he is a Justice of Peace but the Constable and Walker also added that the Plea was that the Maior commanded to imprison him presently without shewing any cause which was held naught for the maior ought to temper his Authority according to Law For the Judges cannot imprison without shewing cause but them and the Maior both may command an Officer to arrest a man without shewing the cause for else before he shall be examined he may invent and frame an excuse and the accessories will flye away And Williams Justice finds that it was incertain for the Plaintif by what authority he commanded it whether as Maior or Justice of Peace and his power as a Justice of Peace the Judges knew by common Law but his power as a Maior they knew not if it be not shewed by pleading and Judgement HVggins versus Butcher Trin. 4. Jac. The Plaintif declared that the Defendant such a day did assault and beat his Wife of which she dyed such a day following to his damage 100 l. And Serjeant Foster moved that the Declaration was not good because it was brought by the Plaintiff for a Battery done upon his Wife And this being a personall wrong done unto the woman is gone by her death And if the woman had been in life hee could not have brought it alone but the woman must have joyned in the Action for the damages must be given for the wrong offered to the body of the woman which was agreed And Tanfield said that if one beat the servant of J. S. so that he die of that beating the Master shall not have an Action against the other for the battery and loss of service because the servant dying of the extreamity of the beating it is now become an offence against the Crown and turned into Felony and this hath drowned the particular offence and prevails over the wrong done to the Mr. before And his action by that is gone which Fennor and Yelverton agreed to BRown versus Crowley Pasch 5. Jac. Action of Trespass brought against Croyley for wounding the Plaintif upon the hinder part of the left legge being rendred in Latin super posteriorem partem levis libaei and the Jury found for the Plaintiff And Harris moved in Arrest of Judgment for hee said that these words levis libaei made the Declaration vitious for the incertainty for he said that levis signified light and it was an improper word for left and that judgment ought to be respited for the incertainty And Yelverton argued that judgment ought to be given for the Plaintiff for he said the Declaration was not vitious for if the Plaintiff had declared generally that he had wounded broken or evill intreated him and had omitted those other words it had been sufficient and then the adding of those words which were not materiall but for damages did not make the Declaration vitious and he said that levus leva levum was Latin for left And whereas he hath said that he strook him super posteriorem partem levis libaei where it should have been levis libaei it was but false Latin and the Declaration shall not be made naught for false Latin And Popham said that hee shewing upon which part of the body the wound was were laid only to incense damages for the Declaration had been sufficient though they had been omitted And Justice Fennor agreed to Popham and he said it had been judged that where a man brought an Action against another for calling him strong Theife and the Jury only found that he called him Theife but not strong Theif yet the Plaintiff recovered for this word strong was to no other purpose then to increase dammages and Judgement was given for the Plaintif VIccars versus Wharton Pasch 5. Jac. Viccars brought an action of false imprisonment against Wharton and others and shews that he was imprisoned two dayes and two nights without meat or drink The Defendants come and shew that King Edward the 1. by his Letters Patents did incorporate one Village in Nottingham-shire with Bailiffs and Burgesses and that the King did ordain and make those Burgesses Justices of the Peace there and that the Defendant was Bailiâ—â— and a Justice of Peace there and that the Plaintiff did speak divers opprobrious and contumelious words of the Defendant by reason whereof they imprisoned him And shews further that the Bailiffs have used from the time of the making their Patent to imprison the disturbers of the Peace and it was held a naughty plea for a custome could not be shewn in such a manner And Tanfield held in this case that a man could not prescribe to be a Justice of peace but Justice Williams held he might prescribe to be a conservator of the Peace And Tanfield held that the King might grant that all the Burgesses and their Heires should be Burgesses which Justice Williams denyed HAll versus White Pasch 5. Jac. An action of Trespass brought against the Defendant for impounding the Plaintiffs Cattel the Defendant justifies for Common And upon that they were at issue in Derby-shire and the Jurors being sworn the Bailiff found one Bagshaw one of the Jurors rending of a Letter concerning the said cause and shewed it to the Judg and a verdict given by the Jury And this matter moved in the then Kings Bench to quash the verdict but denyed by the whole Court because the Letter and the Cause was not certified by the Postea and made parcell of it for otherwise the examination of that at the Barre after the verdict shall never quash it And so it was adjudged between Vicary and Farthing 39. Eliz. where a Church Book was given in Evidence of which you shall never have remedy except it be entred and made parcell of the Record BVtler versus Duckmonton Trin. 5 Jacobi In Trespasse upon a speciall Verdict the Case was that no demised Land to a woman if she should live sole and unmarried
ancient Demesne that this shall not alter the tenure insomuch that it is meerly personall and the damages are the principall which are to be recovered and in 21 Edw. 4. 10. b. the difference is shewed between ejectione firme and quare ejecit infra terminum for one lyes against the Lessor or other Ejector immediately and the other lyes against the Feoffee of the other immediate Ejector and the first is by force of armes and the other not and it alwayes lyes against him that is in by Title and the first against him which is the wrong doer and hee intended that the agreement with one of these Defendants is good for it is satisfaction and discharges the action as release the which every one which hath it may plead and here it is pleaded with satisfaction that is obligation upon which the Plaintiff may have action and so he concluded and prayed Judgement for the Defendants Wynch Justice argued this case notwithstanding that hee had not heard any argument at the Barr this being the first case that he argued after he was made Justice of this Court and he delivered his opinion that the agreement was a good Barre and he said that the difference is where the thing to be recovered is in the Realty and where it is in the Personalty as it is agreed in Blakes Case 6 Coke 43. b. So that here the only question is if this action be in the Realty or in the Personalty and it seems to him that it is in the Personalty and that it is of the nature of Trespass and the tearm is not anciently to be recovered as it is 6. R. 2. Fitz. Na. Bre. and it is within the statute of 4 Edw. 3. Chap. 6. which gives action to Executors for goods carryed away in the life time of the Testator as it is 7 H. 4. 6. b. And to objection that ancient Demesne is a good plea and for that is in the Realty and hee said and so it is in Accompt and Accompt is not in the Realty and the reason why it shall not be a Barr in Assise is in so much that there the Free-hold shall be recovered but this fails here so in Waste also this toucheth the Inheritance but here the Inheritance doth not come in question but the tearm only and it doth not appeare to the Court that it concerns Inheritance for it may be betwixt the Lessor or another which claims under him and the Lessee And if a Husband which hath a tearm in right of his Wife submits himself to Arbitrement this shall not bind the Wife but shall bind the Husband and shall be a Barr if the Wife hath not Interest and so he concluded that Judgment shall be given for the Defendants and that the agreement is a good Barr. Foster Justice intended that the agreement is a good Barr in an Ejectione firme c. And it seems that it is no question but that the action is personall and yet hee agreed that ancient Demesne is a good plea. So in debt receipt of part hanging the Writ abates all the Writ And 21 Ed. 4. 10. b. Two Tenants in Common were of a Tearm and 7 H. 4. 6. b. Executors shall have an action upon Entry made in the time of their Testator by the statute of 4 Edw. 3. Chap. 6. and in this the Plaintiff shall recover his Tearm but he denyed that the reversion is reduced by the recovery nor revested in the Lessor till the Lessee enter And to the Objection that the Realty and Inheritance may come in question in this that is not to the purpose for so it may in an action of Trespasse And he intended there is no difference between agreement and Arbitrement and agreed that none of those is a plea where the Inheritance or Free-hold comes in question And he conceived that Arbitrement for free-hold is not good unlesse the submission be by Deed indented for by Obligation with Condition is not sufficient 11 H. 4. 44. b. and it is not in difference 14 H. 4. that in ravishment of ward submission may be without Deed insomuch as it is in the personalty and he intended that there is no difference between that and Ravishment of Ward and Ward is but Chattâ—ll so is tearm which may be sold by word as well â—s the possession may be sold by word so may the right of that be extinct by word And as if a may be bound to pay a certain summe of money at a certaine day and the Obligee accept parcell in satisfaction before the day and that is very good So in this case acceptance of a summe of lesse value may be a satisfaction of such personall thing 4 H. 8. Dyer 1. 8 Edw. 6. Dyer 19 H. 6. 9 H. 7. And so he concluded that for that nothing is to be recovered but Chattell that for that the agreement shall be good plea. Warburton Justice agreed that the agreement should be good in Ejectione Firme insomuch that this is meerely personall And he argued that it is no Plea in assise insomuch that this is reall and there the Free-hold is to be recovered and this is the reason that waging of Law lieth in Debt upon arbitrement insomuch that the seale of the Arbitrators is not annexed unto it and for that to him it is but only matter in Deed 13. Ed. 4. And he intended that agreement with satisfaction is as much as Arbitrement for a personall thing cannot be satisfaction for a reall thing and that is the cause that it cannot be a Barr in Debt upon arrerages of accompt insomuch that that is founded upon Record and is a thing certaine And in wast it is no Plea insomuch that this is a mixt Action if it be against a Lessee for life otherwise if it be against a Lessee for yeares for a Tearme is taken in 7. H. 4. 6. b. to be within the word Goods and an Executor may have an Action upon that of goods carried a way in the life of the Testator And though that the Entry abate the Writ yet this doth not prove that it is more then a Tearme and though that the Tearme determine hanging the Writ this shall not abate the Action but the Plaintiff shall recover Dammages and in Ravishment of Ward Summons and Severance lies and the Body of the Heire shall be recovered and so in Quare Impedit Summons and Severance lies and the presentment shall be recovered and Dammages and yet the principall is but presentmemt which is but a Chattell and for that agreement shall be a Barr and so he concluded that Judgement shall be given for the Defendant and that the agreement is a good Plea Coke cheife Justice agreed that the agreement is a good Plea he thought that that savered of Realty for that that the Tearme is to be recovered and of the personalty in respect of the Dammages which are to be recovered and that in all Actions where money or Dammages
Prerogative of a Prince and is part of Law and stands with it and this is reasonable custome and so it hath been adjudged in the Kings Bench the reason is insomuch that the custome is the life of the Copy-hold upon which that depends and the party is but a Conduit to nominate the Tenant and when he is nominated and admitted then he takes by the Lord and that stands with the rules and reasons of the Common Law that is that a man devises that a marryed wife shall sell his Land and she may sell notwithstanding the Coverture for she upon the matter nominates the party and he takes by the Devise and by this reason she may sell to her Husband as it is agreed by the 8 of Assises And also by devise that Executor shall sell Executor of Executor may sell notwithstanding that he is not in Esse at the time of the Devise and so a Lease for life to one Remainder to him that J. S. shall nominate is good after nomination and then he takes by the first Livery as it is agreed in 10 H. 7. and J. S. Only hath the nomination and nothing passes to him and with this also agrees 43 Ed. 3. 19 H. 7. So if a man makes a Feoffment to the use of himself for life with diverse Remainders over and power to himself to make Leases for three lives this is good as it is agreed in Mildmayes Case and Whitlocks Case 8 Coke and yet the Estate doth not passe from him but out of all the Estates and he upon the matter hath only the nomination of the Lessee and of the lives for all the estates apply their forces to make that good and the 2 El. Dyer 192. 23. Custome that the Wife of the Copy-holder for life shall have her Widdows Estate is allowed to be a good custome and there an Estate for life upon the matter is raised out of the estate for life and annexed to it and this is by the Custome and the reason he conceived to be for that that Women should be incouraged to marry with their Tenants and by that the marriage with the Tenant and the custome in this Case doth bind the Lord and so 4 Coke there are divers customes by which the Lord is bound and the 8 Coke Swaines Case where the Copy-holder by custome hath the Trees in Case where the Lord himself hath them not so if the Lord sell the Waste yet the Copy-holder shall not loose his Common in that notwithstanding that the Estate of the Copy-holder be granted after the Wast is severed from the Mannor and it is agreed in Waggoners Case 8 Coke that custome is more available then the Common Law And for that this cnse hath been adjudged in this point between Crab and Varney by three or four Judges he would not further question it And for the second custome he agreed that one bare Tenant for life could not meddle with the Sale or falling of the Trees but here is a Copy-holder for life which hath Aut ority given by the Lord and the Custome to dispose the Trees and he saith that Bracton and the old Laws of England calls Copy-holders Falkland and saith they cannot be moved but in the hands of the Lord they ought to surrender and agreed that this is within the Rules of the Common Law for Consuetudo privat communem legem and the Law doth nor give reason of that for this is as a ground and need not to be proved for the reason of every custome cannot be shewed as it was sayd in Knightly and Spencers Case and he sayd that Mannors are divided into three sorts of Tenures The first holds by Knights Service and this is for the defence of the Lord and they have a great number of Acres of Land and pay less Services The second holds by Socage and this for to plow and manure the Demesnes of the Lord and they shall pay no Rent nor do other services and this was at the first to draw such Tenants to inhabit there and for that they have Authority to dispose and sell the Trees growing upon theit Tenements The third holds by base Tenure and these were at the Will of the Lord and these were to do Services and then these in many Cases have liberty for their Wives in some cases to dispose that for another life and to dispose the Trees and so it is in Ireland at this day where some give more and greater priviledge then others to induce Tenants to inhabite and manure their Land for there every day is a complaint made to the Councell for inticing the Tenants of the Lord and 14 Ed. 3. Bar 277. The Tenant preseribes to have the Windfalls and if the Lord cut the Trees that he may have the Lops and 11 H. 6. 2. The Keeper of the Wood prescribes to have Fee and 46 Ed. 3. is prescription to stint the Lord in his own Soyl and all these are for the Incouragement of Tenants to inhabit upon the Land and time of Ed. 1. Prescription 75. A stranger prescribed to have all the profit of the Land of another for a great part of the yeare and to exclude the giver of the Soyl 6 Ja. It was adjudged in the Kings Bench between Henrick and Pargiter that the Lord may be stinsted for Common in his own Laud and in the Book of Entries 563. It appears that by Custome Copy-hold granted Sibi suis was a good Fee-simple and the reason of all this is shewed in the 4. Coke amongst his Copy-hold Cases where it is agreed that the Life of a Copy-hold Estate is the customes and then if the Custome gives life to the Estate this gives life also to all the Priviledges which are incident to the Estate and the Lord is but the means to convey the Estate from one to another and as in 38 Ed. 3. A man hath a House as Heir to his Mother and after a stranger grants Estovers to him and his Heirs to be burnt in the same House these Estovers shall go to the Heirs of the Mother insomuch that they are incident to the House so of Priviledg incident to a Copy-hold Estate by the Custome and at the Common Law if Tenant for life hath cut the Trees he hath not forfeited his Estate for he was trusted with the Land and was not punishable till the Statute of Glocester and at this day if there be a mesne Remainder for life which remains in Contingency and that shall prevent that the Tenant shal be punished for this waste and to make innovation of this custome will be dangerous and for that he concluded that the Plaintiff shall be barred Warburton Justice agreed And the first Custome that is for the nomination of the Successor he conceived that it is good and that it is good by the Common Law and good by Custome by the Common Law as a Lease for life remainder to him which the Tenant for life shall
Chancellor and University of Oxford commanding them that they should remove the University to such a place till the Parliament should be ended And after he sent his Writ to them againe which was directed to the Chancellor and University by which he wild that they should returne againe the Parliament being ended by which Writ he conceived that it appeares that the University was not Locall And this for two reasons First insomuch that this Writ was directed to the Chancellor and University and every Writ is directed to a person and not to a place Secondly the Writ that he should move and remove the University which is a thing impossible to do if it should be a place The other Record was 49. Ed. 3. And this declares that there was contention between the Schollers of Cambridge and the Townesmen there and the Schollers went to Northampton and there they made a Petition to the King that they might erect a University and the King sent his Writ to the Maior commanding him that he would not suffer the Schollers to remaine there and that he would there erect a University which proves that a University may be erected at the Kings pleasure and so cannot a place then admitting that a Corporation may consist upon a place yet the University not being a place that shall not be any prejudice to omit it And he cited a case which was adjudged as he said in the 26. of Eliz. which was thus The Deane and Canons of Winsor made a Lease for years by the name of Deane and Canons of new Winsor And this was adjudged no variance and the case of 5. Ed. 4. 5. of the Abbot of Saint Maries in York which see there and he said the Lord Norths Case was thus That Christ Church in Oxford was incorporate by the name of Deane and Canons of Christ Church in Oxford And they made a Feoffment by the name of the Deane and Canons of Christ Church in the University of Oxford and adjudged a good Feoffment And he said that in the argument of this case it was said by Gaudy that if a corporation were made of Dale and after Dale is made into a City they may make a Lease by the name of a City of Dale and the Lord Popham as he said put these cases That is that if a Corporation be founded of Oxford And that they made a Lease by the name of c. In the Precincts of Oxford this shall be a good Lease yet a thing may be within the Precincts of another place and not in the place and in the 32. Eliz. was the case of one Jermin and Wylles that if a Corporation be made by the name of Deane and Chapter of Saint Maries in Exceter is good But they agreed in this case as he said that if it appeare that they cannot be intended allone otherwise it should be and he conceived in the principall case that it is not necessarily that it should be intended the same place and for that he conceived in all those cases that the Lease shall be good and he said that there were neer two hundred Leases upon the same Title for which c. And after this it was argued in Michaelmasse Tearme 1609. 7. Jacobi by the Justices And the opinion of Crook and Williams Justices was that the Lease was good But Fenner and Yelverton to the contrary and Flemming cheif Justice argued that the Lease was not good but he said this should not be absolutely his opinion but moved a composition betwixt the parties But insomuch that the matter was not compounded in the same Michaelmasse Tearme Judgement was praied And Williams Justice brought into the Court a decree out of the Court of Wards concerning the Case which is put in 7. Eliz. Dyer and 1. Coke Porters Case And upon the decree appeares that an Information being exhibited there against the Master and fellows of Trinity Colledge in Cambridge concerning certain Land they made Title to by a Devise made to them by the name of Masters Fellows and Schollers of Trinity Colledge in Cambridge and this Devise was made four and five of Phil. and Mary and the Decree recyted that upon this were two great Doubts and Questions conceived First If this Devise were good and also by the Statute of 1. and 2. Phil. and Mary which inabled to devise to spirituall Corporations And the second point was That where they were incorporated by the name of Master Fellows and Schollars De sancta and Individua Trinitate in the University and Town of Cambridge if this devise made to them by the name of Master Fellowes and Schollers of Trinity Colledge in Cambridge was good and the Decree rehearsed that the opinion of all the Justices in England was First That it was a good Devise within the Statute of one and two Phillip and Mary as it is reported in the Booke before cited Secondly That this was not such a mis-naming of the Corporation which made the Devise voyd and Williams Justice produced this Record as he sayd to fortify his opinion And he conceived no difference between a Grant and a Devise nor no difference when an Estate or conveyance made unto them and conveiance made by them and for that he cited the Case in the 19 H. 8. in Dyer where if a man devise Land to the Abbey of Saint Peters where the foundation is Saint Paul this is a voyd devise and so in a grant And Crooke Justice to the same Intent Yelverton Justice to that Decree shewed by my Brother Williams I conceive a great Difference First a Will and a grant for in case of a Will it sufficeth if they be described by a name by which the Intent of the Devisor may be sufficiently known and a man is intended to be Inops consilij at the time of the Devise made and for that that he hath not any to instruct him oâ— the precise name of the Corporation for which c. And Fenner Justice to the same intent and if a man devise to one and his Assignes as it is a Fee-simple in case of a Devise so it is not in grant and so devise to one and his Children is an Estate Tayl in case of Devise but not in a grant Flemming cheife Justice to the same intent and to the Decree he sayd that this is as good Law as ever he heard in his life but yet he conceived also that there is a great difference between a Grant and a Devise as if a man devise to a Monke the Remainder over this is a good remainder so devise to one the Remainder over and the particular Tenant refuse this is good in a Devise contrary in grant and to the case which is put by my Brother Williams out of the 19 H. 8. Dyer there is a great difference where there is not any such person at all to take there the Devise shall be void as where the Devise to the Abbot of Saint Peter where
the foundation is of Saint Paul and where it is a person certain but all the name is not so precisely recyted and to that which is sayd by my Brother Williams that no difference between conveiance made to them and by them I agree to him with this difference that is if conveyance be made to them of what by presumption in Law they are knowing and are parties as a Fine levied to them and such like but of a Devise it is not presumed that they have knowledge of that till the Death of the Devisor and he conceived that the Lease is voyd and this Decree shewed hath not changed his opinion but he moved the parties again to an agreement and would not as yet give Judgment Hitcham the Queens Attorney moved the Court for a Prohibition and the case was this two Merchants covenanted by Deed with their Factor to allow him ten pound a Moneth for his Wages and one Merchant sealed the Deed in England and the other sealed that upon the Sea and the Factor came and sued the Merchants in the Admiralty for his wages and by the Court insomuch that one of them sealed it upon the Land this is not any thing done upon the Deepe Sea and for that Prohibition was granted to him Upon a Motion made by Wincolt of the Middle Temple to dissolve a Prohibition granted to the spirituall Court upon a Libel for Tithes there the Court took this rule that when a Consultation is lawfully granted there a new Prohibition shall not be granted upon the same Lâ—bell and yet they qualified that with this difference that is when a Consultation is granted upon any fault of the Prohibition in form by the Mâ—sprision of the Clark or by mis-pleading of any Statute in that or such like there a new Prohibition may be granted upon the same Libell but if Consultation be granted upon the right of the thing in question there a new Prohibition shall not be granted upon the same Libell see the Statute of 5 Ed. 3. Pasch 9. Jacobi 1609. In the Kings Bench. BRomehead and Spencer Plaintiffs Rogers Defendant where an Action of Debt was brought by the Plaintiffs against the Defendant as Administrator during the minority of one J. S. and the Plaintiffs shew in their count that the said J. S. at the time of the Writ brought was and yet is within age of one and twenty years and verdict passeth against the Defendant and Crewe moved in arrest of Judgment that the Declaration was insufficient for they have declared that the Executor was within the Age of one and twenty years and the Administration during the nonage shall cease when the Infant comes to the Age of seventeen years so that he may be of the age of 17. 18. 19. or 20. years and yet the Administration ceaseth and so of Action against Administrator and so was the Opinion of all the Justices and the Judgment was stayed upon that according to the resolution of Piggotts Case 15. Coke 29. a. PLomer against Hockhead the Plaintiff declares in Ejectione firme upon a Lease made to him by three Husbands and their wives and that the Defendant ejected him and at the Issue upon not guilty and in evidence to prove this Lease and the delivery of that was shewed a Letter of Attorney made by the Husbands and their wives and the councel of the Defendant takes exception to the Declaration for they have declared upon a Lease by three Husbands and their Wives with a Letter of Attourney to make delivery and a married Wife cannot make a Letter of Attorney And so this is not a Lease of the Wives and so the Plaintiff had declared upon no Lease And the opinion of all the Court was that a married Wife could not make a Letter of Attorney And Williams Justice compared this to the case of an Infant as if an Infant makes a Feoffment or a lease and delivers that with his hand this is not but voidable But if it be executed by Letter of Attorney that is a disseisin to him but by Flimming and Williams if the Plaintiffs had declared upon a Lease made by the Husbands only this had been very good Thomas Malin Plaintiff in Replevin against Thomas Tully the case was The Queen Mary was seised of a Park called Eestwood Park in her Demesne as of Fee as in Right of her Crown and so being seised by her Letters Patent's let the said Park to two for their lives and after died And the Queen Elizabeth by her Letters Patents recyting the said Lease for lives and that the said Lessees were alive granted the said Park to Humphrey Lord Stafford and his Wife and to the Heires of the said Lord Stafford of the Body of the said Wife lawfully begotten And by the said Patent the same Queen by these words Ac de Ampliori et Vberiori Gracia Nostris Volumus et Declaramus quod si Predictus Dominus Stafford Solvat seu Solvi faciat prefacto Dominae Reginae 20 s. ad talâ—m Diem Tunc Concedimus quod predictus Dominus Stafford habebit revertionem predictam sibi et Heredibus suis And the Lord Stafford paid the said sum of twenty shillings according to the said Letters Patents and if he shall have Fee-simple or not was the question And it was objected that he shall not have it for the words of the Patent are that if the Lord Stafford paies the money Tunc concedimus the which words seeme that the Grant shall take effect in futuro and it was not a present Grant but when the money shall be paid then shee granted but it seemes to the Justice that it was a good Grant immediatly to take effect upon the payment of the money and the condition was precedent till that be performed the reversion remaines in the Queen Eliz. And the Queen might grant by one selfe same Patent as by diverse See 10. Assise 13. 7. Ed. 3. 8. Ed. 2. Feoffments and that the reversion shall not extinguish the Estate Tayl but they may well be together but otherwise it is of an Estate for yeares or for life Warburton Justice that the King is specially favoured in the Law and for that he shall not be inforced to attend in case as other persons ought to make attendance And for that in case where a common person may make a good Grant the King also may make a good Grant and in the case at the Barr if the Grant had been made by a common Person it had been good without question But the first objection that hath been made was that where a man hath made a Lease for life or for years upon condition to have Fee there the particuler Estate shall be drowned upon the increasiing of the Estate but the Statute of Westminster 2. preserves the Estate tayl that it shall not be drowned and that the Fee in this case doth not vest till the condition be performed for if the
the Rent is gone If I make a Lease for Life reserving a Rent to me and my Executor neither the Executor nor the Heir shall have the Rent Justice Walmsley held this difference in making a Lease to two during their Lives if one die the other shall have it otherwise it is if it be made to one during the Life of two and one of them die in this case the Lease is ended and there is difference between a reservation of Rent and Lease for Reservation is according to the will and pleasure of the Lessor and Justice Walmsley said if a Lessee for years granteth a Rent to A. during the Life of B. and C. this Reservation is good although one should die which Sir Edward Cook denied and Judgement was given for the Plaintiff in Hills case If I make a Lease for years reserving a Rent and then I grant demise and to farm let Reversionem domus for years and the Rent to have and to hold the Reversion and the Rent from a time past if the Lessee cannot get an Attornement yet it is a good Lease in Reversion and shall take effect after the end of the first Lease habendum terram habendum reversionem est terra revertens and no difference If the Husband with his own money purchaseth for his Wives Joynture Land to them and the Heirs of their two Bodies the Remainder in Fee to the Wife and they have Issue two Sons and the Husband dieth and the Wife suffereth a Recovery to the use of the youngest Son the eldest Son notwithstanding shall have the Land by the Statute of Joyntures Hill 6. Jac. If I set-out my Corn and after take it away the Parson may sue me in the Spiritual Court or bring an Action of Trespass against me but if the Parson sue in the Spiritual Court a stranger for taking away the Tithes which were set out this is a Praemunire in the Parson Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent if a man hold over his terme and pay his old Rent he shall be accounted Tenant at will For one joynt Debt for one Contract you cannot plead Nil debet for part and demur for the rest for he pleads Nil debet and the matter in Law is reserved Licet saepius requisit is a sufficient Request upon a Bond because it is a Debt Unto an Action brought against a man upon a Bond pleads Denis age the case was this that when the Obligation was sealed and delivered the Defendant was of full age but at the time when the Bond bore Date he was under age and at the Assises the Judge there ruled that at the time of making the Bond was when the Bond was sealed and not when it bore Date The Court were of opinion that where a Bishop holds Land discharged of Tithes and he makes a Feofment of the Land the Feoffee shall be discharged of Tithes and the like if the King hath ancient Forest-land discharged of Tithes and the King grants this Land the Grantee is discharged of Tithes and it is a general Rule that he which may have Tithes may be discharged of Tithes If I let Land for years reserving Rent if I command one to put his Cattle into the Land I cannot distrain them for my commandement is a wrong and an Action of case will lie against the commandor If I make a Lease and bid the Tenants cut down the Trees yet I may have an Action of waste against my Lessee In Sir Cheydens case the commandment to take Possession was void unless he had commanded him to expell the Tenant and then he might joyn either to distrain or bring an Action of Debt for the Lease was made by him and two more 28 H. 8. If I make a Lease to the Husband and Wife covenant to do no waste or repair Houses and the Husband dieth and the Wife surviveth and holdeth in if the Wife commit waste or not repair the House no Action lieth against the Wife but to such a Lease the Wife is tied to pay the Rent or to perform a condition made by the part of the Lessor but not observe or perform Covenants of the Lessee Pasch 10. Jacobi The Court much doubted whether one that had a Park and was used to pay one Shoulder of Deer for all manner of Tithes and the Park is dis-parked should now pay Tithes in kinde or not For Wooll and Lamb no Action upon the Statute for not setting out of Tithes for they are no predial Tithes and no Action lies upon this Statute for small Tithes An Administration granted durand minori aetate execut is not within the Statute of 21 H. 8. And by the Civil Law the Judge may after Administration by him granted revoke it and grant it to another And if an Administration be granted to a Feme Covert yet she shall sue in their Court as a Feme sole One Briefly married an Administratrix and entred into Bonds for the Intestates Debts and afterwards the Wife leaveth her Husband and refuseth the Administration and it was granted to another and now B. prayeth a Prohibition for that he may be sued for Debts and denied by the Court untill he be sued This Administration was first granted by Doctor B. and after by him revoked and a new granted by him to the Wives Brother and afterwards he revoked that and established the first Administration and the Appeal A Feofment in Fee by Deed indented Rent reserved it is good but without Deed cannot reserve Rent If Land be devised by three upon condition to pay them 100. l. equally to be divided and one of them dieth his Executor or Administrator shall have the Money and so it is if one were bound to pay Money The Commissary granted Administration of the Intestates Goods to the Wife and did make a Divident of his Estate to some of the rest of his Kindred and this was-held not to be warranted by Law and more then the Ordinary could do because the Administratrix is chargeable to pay all Debts and Promises of the Intestate and to bring up his Children which she cannot do if the Goods be taken away Vbi delinquit ibi punietur If a Copy-holder of Inheritance accept a Lease for years of his Copy-hold the Copy-hold is gone by the opinion of the whole Court If a Legacy be granted of Land this shall not be sued for in the Spiritual Court but if one by Will devise Land to be sold for payment of Legacies this shall be sued for in the Spiritual Court by the opinion of the whole Court If two Fulling-mils be under one Roof and a rate-tithe paid for the Mils and after you alter these Mils and make one a Corn-mill your Rate is gone and you must pay Tithes in kinde or if you have but one
to seal and he refused and upon such Refusall the Plaintiff brought his Action and a Verdict was given for the Plaintiff and Serjeant Yelverton moved in Arrest of Judgement that the Plaintiff ought not to have Judgement for he said that the Defendant was not bound and compellable to seal that Obligation because it was not in Law any Assurance but a collateral thing and the whole Court agreed that and therefore being the Action was brought for refusing to seal the Obligation and Letter of Attorney and the Judgement according it ought to be arrested but Cock said that Judgement ought not to be arrested for the Premises of the Delaration it appeared that he refused to seal the Letter of Attorney and thereupon concluded that it should not be arrested and Fennor said that the Letter of Attorney was not any such Assurance as the Law required in such Case for when he had made the Surrender it should be accounted the Surrender of him that made the Assurance and he said he should make a present Assurance of it but Tanfeild was of another opinion and said that when the Surrender was made it shall be said to be the immediate Surrender of him that made the Letter of Atturney and such an assurance as the Law required and Yelverton Justice said the Letter of Atturney was lame for this cause the Letter of Atturney was made to one for the surrendring of such a Copy-hold and did not say in the Letter of Atturney for him and in his name for otherwise the Copy-hold might be the Copy-hold of him that surrendred by vertue of the Letter of Atturney and then he should surrender his own Copy-hold but Tanfeild was of another opinion because he said in the Letter of Atturney that he did constitute and appoint and in his stead and place put such a one which words in his stead and place are as full as if he should have said in his name HOllingworth versus Huntley Pasch 5 Jacobi An Action of Debt brought upon an Obligation the Condition amongst many other things contained that the Husband and Wife being Lessees for life of certain Lands that if the said Husband and Wife should levy a Fine to an estranger at the Costs and Charges of an estranger and also that they should levy a Fine of other Lands that they also held for their lives to an estranger and at their Charge then c. the Obliger sayes that the Husband and Wife did offer to levy the Fine if the estranger to whom the Fine was to be delivered would bear their Charges the Obligee demurres and it was adjudged for the Plaintiffe because the levying the second Fine had not any reference to the other because they are two distinct sentences and these words and also make them so Man versus Somerton Pasch 5. Jacobi The Plaintiffe being Parson of Henley brought an action of Debt for six hundred pounds upon the Statute of 〈◊〉 6. for not setting forth Tithe of Wood and the Plaintiffe shews that the Defendant had cut down two hundred loads of Wood to the value of two hundred pounds and saith the tenth part of that did amount to two hundred pounds and so he brought his action for six hundred pounds upon the Statute and the Plaintiffe was nonsuit for one fault in his Declaration for whereas he names the price of the Wood to be two hundred pounds it was mistaken for it should have been two thousand pounds for he demanded more for the tenth part then the principall is by his own shewing and Tanfeild Justice held that Beech by the common Law is not Timber and so it was adjudged in Cary and Pagets Case and it was held that Tithes shall not be paid for Beech above the growth of twenty years in a common Countrey for Wood as in Buckingham-shire for there it is reputed Timber but in a plentifull Countrey of Wood it is otherwise for there it is not Timber and Tithes shall be paid for such wood Silva cedua for which Tithes shall be paid is under the growth of twenty years but Tithes shall be paid for such wood which is not Timber which is above the growth of twenty years PErcher versus Vaughan Trin. 5. Jac. An action of Debt brought upon an Obligation for six pounds thirteen shillings eight pence The Defendant demands Oyer of the Obligation and imparles and after an imparlance the Defendant comes and sayes there was variance between the Plaintiffes writ and the Obligation for it appeared by the Obligation that the Defendant was obliged in viginti nobilis and so his action ought to be brought according to the Obligation and demands Judgement if the Plaintiffe ought to have his action the Plaintiffe demurres and it was argued by the Plaintiffes counsell first that it was no variance for it was said that twenty nobles and six pounds thirteen shillings eight pence were all one in substance if a man be bound to pay a hundred nobles and brings his action for fifty marks it is not variance 34 H. 8. 12. and 4 E. 3. Fitzherbert Title varians 102. agrees to that but if a man be obliged to pay certain money in Flemish money he ought to shew the performance of that strictly 9 Ed. 4. 49. and the Plaintiffes counsell said that it was variance it could not be shewed after an Imparlance in Marks Case Co. 5. 74. and said the conclusion of the Defendants Plea to demand Judgement of the Plaintiffe ought to have his action was not good for this Plea was not in barr of the action but in abatement of the Writ and Yelverton Justice agreed to that and he said when the Obligation was in viginti nobilis it shall be intended twenty nobles and good Tanfeild said that when there is no good and apt Latine words for a thing no unapt Latine word is put in the Bond for that thing the Bond is void as when a man is bound in quinque libris it it was adjudged in Mich. Term 5 Jac. that the Obligation was void because there was a fit Latine word and that was quinque and so it was adjudged in the Lord Danvers Case where the Indictment for one blow super capud and it was held void because it was an unapt word and there was a fit and apt word to wit Caput and VVilliams agreed to this for he said it was adjudged in the common Pleas between Pencrosse and Tout a man was bound in a Bond in viginti literis when it should have been viginti libris and adjudged void for the same cause but after in Hillary Term the Plaintiffe had Judgement because in one Dictionary nobilis was a Latine word for six shillings eight pence VEntris versus Farmer Trin. 5. Jacobi A Lease was made for years rendering Rent payable at a place of the Land and the Court was moved whether a Demand of the Rent may not be made upon the Land but denied by the
Arbitrators are made Judges by the assent and election of the Parties and it appears that the parties put their trust not in the four joyntly but joyntly and severally and the Ita quod c. is an explanation of all the Condition that they four or any two of them might arbitrate all matters between them and so much appears 2 R. 3. 18. where two of one part and one of another part put themselves to the Award of I. S. now by this Submission I. S. may arbitrate as well any matters between the two parties of one part as between them and the third because in the intent of the parties the end of their Submission was to have peace and quietnesse and 4 H. 4. 40. the Condition of a Recognisance was that if A. A. shall stand and abide the Award of four named three or two of them of all matters c. which is a division of their power and observe in the principal Case that untill the Ita quod comes the Condition is not perfect for all the Condiâ—… is but one Sentence BRisco versus King Trin. 9. Jacobi The Plaintiff brought an Action of Debt upon a Bond for three hundred pounds with a Condition that the Defendant should perform all Covenants Clauses Payments and Agreements contained in one Deed poll of the same Date made by the Defendant to the Plaintiff the Defendant by way of Plea sets forth the Deed poll in haec verba in which Deed was contained one Grant and Bargain and sale of certain Lands made by the Plaintiff to the Defendant for one hundred pounds paid and two hundred pounds to be paid in which Deed there was one Proviso that if the Defendant should not pay for the Plaintiff to one J. S. forty pounds to J. D. forty pounds c. at such a Day that then the Bargain and Sale should be void and the Defendant pleads that he had performed all the Covenants c. comprised in the Deed the Plaintiff assigned a Breach for the not paying of forty pounds at the Day according to the Proviso and the Defendant demurrs and adjudged for the Defendant by the whole Court for the Condition bindes the Defendant to perform other Payments then such as the Defendant is bound by the Deed to perform for the Obligation was made but for the strengthning of the Deed and the Deed requires not any compulsory Payments to be made but leaves it to the will of the Defendant or to make the payments specified in the Proviso or in Default thereof to forfeit the Land to the Plaintiff and therefore it appears that it was not the intent and meaning of the parties to make an Obligation with a Condition repugnant to it and contrary to the Deed poll of Bargain of Sale and by this means the Payment of forty pounds to J. S. which is made voluntary by the Deed poll shall be made compulsory by the Obligation but the word Payments in the Condition of the Obligation shall have relation onely to such payments contained in the Deed poll which are compulsory to the Defendant and not otherwise and because the neglect of the payment of forty pounds to J. S. assigned for the Breach is denied to be voluntary for the Defendant to pay or not to which the Condition of the Obligation cannot in any reasonable construction extend therefore it was adjudged against the Plaintiff WOolby versus Perlby Mich. 9. Jacobi An Action of Debt brought upon a Lease for years the Plaintiff derives his Title by the grant of the Reversion by way of bargain and Sale in Fee from the first Lessor and declares that by an Indenture of such a Date one grants bargains and sells for money the Reversion to him in Fee which Indenture was inrolled such a day according to the form of the Statute and because he shewed not in his Declaration in what Court it was inrolled and the Statute of 27 H. 8. Parles of many severall Courts and that it is no reason to put the Lessee to such an infinite labour to search in all Courts as well at Westminster as in the Countrey with the Clerk of the Peace and for this cause after a verdict a nil capiat per Billam entred by the whole Court SIR George Savill versus Candish Hill 9 Jac. The old Countesse of Shrewsbury had a Verdict against Savel and upon a challenge of the Sheriff on the Plaintiffs part of the County of Derby the Tenure was directed to the Coroners who returned all the Writs and at the Assises a Tales was awarded and the name of one of them of the Tales was Gregory Grigson c. and by postea returned by the Clerks of the Assise in the Common Pleas the Tales was returned to be by the Sheriff but in the entring up the Judgement it was made by the Coroners and the name of the man of the Tales by the Clerk of the Assise was restored according to his right name Gregory but entred in the Roll by the name of George and upon that Judgement Savill brought a Writ of Error which depended ten years and more and the first Plaintiff who was the Countesse of Shrewsbury died this matter being indiscussed and Candish as Executor to the Countesse revived all by Scire facias why he should not have Execution and after many debates the Judgement was reversed for three causes first because upon the Pannell of the Jurors names after the twenty four Jurors were named at the foot of the Pannell two names were added to the Jurors which in truth were the men of the Tales but no mention was made that they were the names of the Jurors impannelled de novo according to the form of the Statute which ought to be for at the Common Law the Justices of assise cannot grant any Tales to supply the default of the first Jurors but it is given only by the Statute of the 35. H. 8. which ordains that their names shall be added to the first Pannell and this cannot be discerned to be done accordingly if such a stile and Title be not made over their names viz. nomina Jurator de noto apposit secundum formam Statuti to distinguish what is done by the Common-Law and what by the aid of the Statute and also the Coroners names ought to be added to the Tales at the bottom of the Pannell and in this Case their names were onely indorsed which was upon the Return of the first Pannell and although divers Presidents were shown to the Court wherein the names of the Jurors de novo appoposit c. were united upon the Pannell yet the Court did not regard them because it seemed that they passed in silence without debate had upon them the second cause was because it appeared by the Return of the postea that the Tales were returned by the Sheriff which is error in the first Processe to the Coroners and although in the Entry in the Common Pleas of
for the intent of a Will must be certain and agreeable to Law and there must not an intent out of the words of the will be sought out and the whole Court held that the Plaintiff was barred YOung versus Radford Pasch 10 Jacobi Rotulo 1515. Action upon an Ejectment brought and the Jury found a speciall Verdict and the Case was that Elizabeth Rudford was possessed of a house full thirty years and she took a Husband the Husband and Wife morgage the Term the Wife dies and the Husband redeems the Land and marries another wife and then dies and makes his Wife Executrix and she maries the Lessor The Defendant takes Administration of the Goods of the first Woman and it was held void and Judgement for the Plaintiff PEttison versus Reel Pasch 12 Jacobi Rotulo 2350. An ejectment brought and Triall and Verdict for the Plaintiff and exception taken in arrest of Judgement to the Venire Facias because this word Juratum was omitted for the Writ was posuerunt se in illam and omitted the word Juratum and this was amended by the Court. When a Title is to be tryed upon an Ejectment and a Lease to be executed by Letter of Attorney the course is this that the Lessor do seal the Lease onely and the Letter of Attorney and deliver the Letter of Attorney but not the Lease for the Attorney must deliver that upon the Land and upon an Ejectruent brought of Lands in two villages of a house and forty Acres of Land in A. and B. and a speciall Entry in the Land adjoyning to the house to wit the putting in of a Horse which was drove out of the Land by the Defendant and this was adjudged a good Entry for the Land in both the Villages by the opinion of the whole Court ARden versus Mich. 12 Jacobi The Plaintiff delivers that whereas such a day and year at Curdworth in the said County did demise to the Plaintiff two Acres of Land with the Appurtenances in the Parish of C. and the Venire facias was of the Parish of C. and after a verdict exception was taken because it was not of Curdworth but it was adjudged good by the Court and to prove the Lease made Lanheston an Attorney swear that the Lessor sealed the Lease and subscribed it but did not deliver it and by word gave authority to one W. to enter into the Land and to deliver the Lease upon the Land to the Plaintiff as his Deed and by that authority he entred and delivered the Lease as his Deed to the Plaintiff and it was adjudged good MArsh versus Sparry Hill 14 Jacobi Rotulo 1859. An Ejectment brought ex dimissione G. W. and the Originall was made ex divisione and after a Triall Serjeant Hitchaw moved the Court that the Originall might be amended and make ex dimissione and the Court granted it and the Cursitor was ordered to amend it and also in the end of the Originall it was written Barnabiam and it should have been Barnabas and that also was ordered to be amended by the Court. CRadock versus Jones Trin. 14 Jacobi Rotulo 2284. An Ejectment brought upon a Demise made by Cotton Knight the Defendant pleads not guilty and a Challenge to the Sheriff and prayes a Venire facias to the Coroners because the Sheriff is cozen to the Plaintiff and shews how and because the Defendant did not deny it a Venire facias was awarded to the Coroners and after a verdict it was alledged in arrest of Judgement because it was not a principall Challenge and a Venire facias de novo awarded to the Sheriff PArkin versus Parkin 13 Hill Jacobi Rotulo 979. And Ejectment brought and verdict and after a Triall Exception taken to pleading of a Deed inrolled the Action was brought in the County of York and pleaded thus ut infra sex menses tunc proximos sequent coram milite uno Justic c. in West-Riding Com. Eborum ad pacem c. conservand Assign W. C. Clerico pacis ibidem debito modo de Recor. irrotulat and Exception was because the inrollment was not made according to the Form of the Statute because it did not appear that the Justice before whom the Deed was inrolled was a Justice of the Peace of the County of York but of the West-Riding and it was not alledged that the Land did ly in the West-Riding and note that the Defendants Plea in Barr was insufficient because the Defendant did not confesse nor avoid the Count and the Plaintif by his Replication doth not shew any Title to the Land because it did not passe by the inrollment and so he hath lost his Suit and although the Barr be insufficient yet notwitstanding the Plaintif shall not recover GReenely versus Passy Hill 5 Iacobi Rotulo 808. An Ejectment brought the Defendant pleads not guilty and the Jury found it Specially that one Woodhouse was seised of Land in Fee and did infeof the Husband and Wife to have and to hold to the said Husband and Wife and the Heirs of their bodies between them to be begotten by vertue of which Feofment the Husband and Wife were seised of the whole Land in Fee Tail to wit c. the Husband infeofs the youngest Sonne of the land in Fee and afterwards the Husband dies and the woman survives and afterwards she dies before any Entry by her made into the Land and further find the lessor to be the eldest son of their bodies and that the younger Son infeoffed the Defendant and afterwards the eldest Sonne entred into the Land and made the lease in the Declaration and whether the Entry of the eldest Son was lawfull or no was the question upon the Statute of 32 H. 8. that Fines or Feoffements made by the Husband c. during coverture be or make any discontinuance c. or be hurtfull to the said wife or her Heirs and Sir Edward Cook held that the Heir is not barred of his Entry by the Statute PAcy versus Knollis Trin. 6. Iacobi Rotulo 291. An Ejectment brought the Defendant pleaded not guilty and the Jury found it Specially and the question is upon the words of the Will to wit And I give to Katharine my Wife all the Profits of my Houses and Lands lying and being in the Parish of Billing and L. at a certain street there called Broke-street and the Jury found that there was not any Village or Hamlet in the said County called Billing and that the Land supposed to be devised lieth in Byrling-street no mans verbal Averment shall be taken or admitted to be contrary to the Will which is expresly set out in the Will If I have two Thomas to my Sonnes and I give it to Thomas it shall be intended my youngest Son because my eldest Son should have it by Discent the Will was held by all the Court to be good HEllam versus Ley Trin. 7. Jacobi rotulo 2718.
A special Verdict in an Ejectione firme the Question was upon the words of the Will which were that her Husband had given all to her and nothing from her and whether these words imply a consent and so an Agreement to the Devise of the Husband or no. And Foster Warburton and Walmsley that it was an Assent but Sir Edward Cook was of a contrary opinion and note she was made sole Executrix and she proved the Will and Justice Foster held it to be an Assent in Law The property of Goods cannot be in obayance they must be in the Executor Administrator or Ordinary and Warburton held that the words made an Assent and said that when the Bond is delivered to one to the use of another untill he dis-assent it is his Deed but when he dis-assenteth then it is not his Deed Ab initio if a Lease be given by Will to divers and made one of them his Executor in this Case the Executor must make his special Claime else he must have it as Executor and Sir Edward Cook held that the general Entry and proof of the Will is no Assent she must first have it as an Executor before she can have it as a Legatee a Legacy is waiveable but if the Law work it in me whether I will or no then I cannot waive it and therefore he held she should enter specially ROlles versus Mason Hill 6. Jacobi rotulo 2613. An Ejectment brought and the Question grew upon two Customes one was that the Copy-holder for Life may name to the Lord of the Mannour who should be his Successor in the Copy-hold and the other that the Copy-holder for Life may cut down all the Trees of wrong upon the customary Land and the third Question was whether the second Lessee of the Mannour may take advantage of the pretended Forfeiture for cutting down the Trees by the Law a Copy-holder shall have house-boot free-boot and hedge-boot and common of Turbary to burn in his house but he cannot sell them A Copy-holder by Custome may name his Successor and if the Lord refuse to admit him the Homage may set a reasonable Fine and so he shall be admitted The Lessee of the Mannour may take advantage of the Forfeiture but in this Case it is no Forfeiture and the Copy-holder may cut downe Trees for he hath a greater Estate then a sole Tenant for Life because he shall name his Successor APrescription goeth to one man and a Custome to many and Judgement for the Defendant MAson versus Strecher alios Pasch 7. Jacobi rotulo 606. An Ejectment brought for the Mannour of P. it was held by the Court that the consent of a Servant in the absence of him who is possessed of the Terme shall not out his Master of the Possession because the Servant hath no interest in the Land CRamporne versus Freshwater Pach 8 Jacobi rotulo 2742. An action of Debt brought upon an Ejectment the Plaintiff was non-suit upon his own Evidence because he declared upon a Devise made for three years and it was confessed by the Plaintiff that the Lands were Copy-hold Land and that the Plaintiff had not license to demise them for three years neither could he prove that by any custome he could demise them for three years without a license and so the Lessor was taken for a Disseisor by the opinion of the Court. CAffe versus Randall Trin. 9. Jac. rotulo 3299. An Ejectment brought against Randall and his Wife the Ejectment made by the Wife and not guilty pleaded and tried and it was moved in Arrest of Judgment because the Issue was pleaded in this manner Et dicunt quod ipsi in nullo sunt culpabiles c. And the Ejectment was made by the woman alone and ought to have been that she was not guilty and upon examination of the Plea Rol and Record of Nisi prius it appeared to the Court that the Plea Roll was right but the Record of Nisi prius mistaken but Serjeant Barker said that at the time when the Record of Nisi prius was tried the Plea roll agreed with the Record and was afterwards amended and Waller the prothonotary confessed that he amended the plea rol as upon his private examination of the roll but without notice that there was a Record sent down to try that Issue and therefore the Court ordered that the Record of Nisi prius should be amended according to the Plea roll which was done accordingly PAts versus Chitty Trin. 9. Iac. rotulo 2151. vel 2151. An Action of ejectment brought the Defendant pleads a concord with satisfaction in Bar the Plaintiff demurs and it was held by Winch and Foster a good Plea because the Action is not only in the realty for he recovers damages and possession which are meer Chattells Secondly Because the Defendant pleads the satisfaction as in discharge of that Action and all others and ten shillings for rests Warburton of the same opinion and he vouched the like case satisfaction is good Plea in a Quare impedit wherein a man recovers the presentation And Cook said that in all Actions wherein money or Damages are recoverable as well wherein the Defendant might wage his Law as wherein he might not it is a good Plea Pasc 3. Jacobi rotulo 1033. Eden and Blake but in matters where one Free-hold or Inheritance is recoverable concord is no Barr and in dower recompence in other Lands or Rent is no Barr. But by petition in Chancery but Rent Issuing out of the same Land demanded is a good Barr and in all Actions Quare vi armis wherein process of Outlary lies by the common Law concord or an Award is a good Barr 38 H. 6. title Barr satisfaction in trespass by an Estranger is a good Barr although it be without notice of the trespassor by the opinion of the whole Court CRaddock versus Iones Trin. Iacobi rotulo 2284. An Ejectment brought and declares upon a Lease made by W. Cotton Knight the Defendant pleads not guilty and makes a challenge and praies a venire facias to the Coroners because the Sheriff is Cozen to the Lessors Wife which is not a principle challenge but by favour and after a Triall and Verdict it was amended in arrest of the Judgment because it was mistried and Barker vouched a case in the Exchequer Chamber in 43 El. upon a Writ of Error between Higgins and Spicer upon a Venire facias awarded in the like manner and it was adjudged to be mistryed and it was then agreed that misconveyance of process is where one Writ is awarded in place of another to an Officer which of right ought to execute that process and he returns it this is helped after a Verdict by the Statute But if a writ be awarded to an Officer who ought not to execute that process and he returns it this is a mistriall and not helped by the Statute and Warburton said that Dyer
BAnks against Barker Hill 12. Jac. rotulo 1979. In an Action of Trespass the venire facias was well awarded upon the case of the venu in Westown and of the Mannor of D. and the Writ of Venire was mistaken to wit of the venu of Westown and exception being taken after tryall the Court was moved for the amending of the venire facias by the roll and it was denyed because the Jury did come of another venu then they ought by the Law of the Land to come and therefore could not be amended but afterwards the Court seemed to be of an opinion that the awarding of the venu in the roll was mistaken because it was of the venu of the Villiage and Mannor and it should have been of the Mannor only being to try a custome of the Mannor FOrrest against Headle Hill 13. Jac rot 1123. An Action of Trespass brought and a continuando of the Trespass unto the day of the shewing forth the Plaintifs Originall to wit the 20. day of November which day was after the shewing forth of the Originall and because the Jury gave damages for the whole time which ought not to be it was proved that the Judgment upon the verdict might stay but by the whole Court the videlicet was held idle and Judgment given for the Plaintiff COcks against Barnsley Hill 10. Iac. rotulo 2541. An Action of Trespass brought and a speciall verdict found and the question was whether Land held in ancient Demesne was extendable for debt and an action of Trespass brought for that cause And Justice Nichols held it was extendable for otherwise if it should not be extendable there would be a fayler of Justice for if a Judgment should be had against a man that had no other Land but what was in ancient Demesne and that it could not be extendable there would be a fayler of Justice which the Law doth not allow of but an Assize or a re-disseisin doth not lye of Land in ancient Demesne because of the Seisin that must be given by the Common Law and it would be prejudicial to the Lord which the Law allows not and Wynch and Hubbard were of the same opinion For ancient demesne is a good plea where the Free-hold is to be recovered or brought in question but in an action of Trespass it is no plea. And note that by this execution neither the Free-hold nor Possession is removed but only the Sheriffe enters to make execution upon a Judgment had in the Common bench in debt which is a proper Action to be brought there WRight and his Wife against Mouncton Hill 12. Iac. rotulo 43. An Action of Trespass brought to which the Defend pleaded not guilty And the Husband only made a challenge that he was servant to one of the Sheriffs and prayes a processe to the Coroners and the Defendant denies the challenge and therefore notwithstanding the challenge the Venire issued to the Sheriffs and after a tryall exception was taken because the woman did not joyne in the challenge and it was held that the Husband and Wife should joyn in the challenge although the cause of challenge proceded from the Husband only but after tryall it was helped by the Statute of Ieofailes and judgment given for the Plaintiff BIde against Snelling Hill 16. Iac. rotulo 1819. An Action of Ejectment brought and also a Battery in one and the Writ and after a verdict it was moved in Arrest of Judgment because the Battery was joyned with the Ejectment The damages were found severally and the Plaintiff had released the damages for the Battery and prayed Judgment for the Ejectment Winch held the Writ naught but Judgment was given for the Plaintiff notwithstanding STeward and his Wife against Sulbury An Action of Trespass brought wherefore by Force and Armes the Close of the Wife while she was sole at D. hath broken and the wood of the said D. to the value of 1005. there lately growing hath cut down and carried away and in his Count shews that he hath cut downe two acres of wood and exception was taken because he declared of so many acres of wood and not of so many loads of wood to wit twenty c. loads and held by the Court to be a good exception BLackeford against Althin Trin. 14. Jac. rotulo 3376. An action of Trespass brought wherefore by Force and Armes a certain Horse of the said Plaintiffs took away c. The Defendant conveys to himselfe a certain annuity granted to him by one John Hott The Plaintiff shews that one William Hott Father of the said Iohn Hott the Grantor was seised of Land in Fee which Land was Gavel-kind Land and devised it to his Wife for life the remainder to Iohn Hott the Elder and Iohn Hott the Younger his Sonne and the Heirs of their bodies And afterwards William dyed and the Woman entred and was seised for life and the two sonnes entred and were seised in tayl and being so seised Iohn Hott the younger had issue Iohn Hott c. and traverses without this that Iohn Hott the Father at the time of granting the annuity was seised of the Tenements aforesaid with the appurtenances in his Demesne as of fee as c. And the Defendant as before saith that the said J. H. the Father at the time of the granting the annuity aforesaid was seised and after the tryall it was moved in Arrest of Judgment supposing it was mistried because the issue was that the said J. H. the Father at the time of the grant c. And it doth not appear that the said J. H. was nominated Father neither could it appear that the said J. H. was the Father and so the word Father was idle and the Court were of opinion that it was helped by the Statute of Ieofailes and the word Father was idle and judgment was given for the Plaintiff A. brought an Action of Battery against the Husband and Wife and two others the Wife and one of the others without the Husband pleads not guilty and the Husband and the other pleaded seu assault demesne and tryed and alledged in arrest of Judgment because the Woman pleaded without her Husband and Judgment was stayed and a Repleader alledged and this case was confirmed by a case which was between Yonges and Bartram HArvy against Blacklole Trin. 8. Jacobi rotulo 1749. An Action of Trespass brought wherefore by force and Armes his Mare so strictly to a Gelding did fetter that by that fettring the Mare aforesaid did dye If a stranger take a Horse that cometh and strayeth into a Mannor the Lord may have his action of Trespass If my stray doth stray out of my Mannor and goeth into another Mannor the day before the yeare be ended I cannot enter into the other Mannor to fetch out the stray If I take an Horse as a stray and onother taketh him from me the Action lyeth not by the Owner against the second taker
Canterbury shall not be avoidance of the said Canon and he agreed that a Canon against Statute Law or Common Law or any Custome shall not bind the Subject and agreed that so it had been adjudged in this Court But he denyed that the exposition of any Statute belonged to the Ecclesiasticall Court for the Statute is meer temporall though it concern spirituall things and it shall be expounded according to the Rules of the common Law see 5. Edw. 4. Keasors Case And so concludes that this suit was against the Statute of 23. H. 8. For it ought to have its beginning in the Court of the Bishop of London And this exposition of the Statute is made for the Defendant 94. Canon which was ex presly made against the Court of Arches and inflicts suspension by the space of three moneths upon the Judges which offend against it from their Office and awarded that Prohibition shall be granted and with that agreed Warburton and Foster Justices but Walmsley Justice was of contrary opinion that is that no Prohibition shall be granted by the Court of Common Pleas but in case where the Suit is there hanging And this was objected also by the Civilians And the opinion of the Judges of the Kings Bench cited to prove it but prohibition was granted that notwithstanding And to the objection that the Arch-Bishop of Canterbury may have a consistory in the diocesse of every Bishop this was denyed but only where he was the Popes Legate and thenas Legate heshall have Jurisdiction of all the Diocesse of England it was agreed that there were three sorts of Legats First Legates a Latere and these were Cardinalls which were sent A Latere from the Pope The second A Legate born and these were the Arch-Bishops of Canterbury Yorke and Ments c. And these said Legates may cite any man out of any Diocesse within their Provinciall then there is a Legate given and these have Authority by speciall commission from the Pope Daringtons Case DAringtons Case was cited before the high Commissioners of the King for maintenance of the opinion of Brownisme and for slandering of one Mr. Eland a Minister and also of the Judges of the Common Law and was sentenced that for the first he should make his submission before the said Commissioners and also for the second that he should make submission to Mr. Eland and confesse his offence to him and pray that he will forgive him and so for the third also that he should make submission and that he shall be committed to prison untill he perform the said sentence and put in security that he will not here after make a Relaps in any of the said offences and after he made submission for the first offence according to the sentence and upon complaint to this Court Habeas Corpus was awarded to the Keeper of the Prison in which he was to bring in his Body with the cause of his taking and detaining and he certified the causes aforesaid but not the Submission and these were the causes of the taking and detaining of the said Darington and it was prayed by Serjeant Nicholls that he might be delivered and Coke cheife Justice said that the Ordinary by the common Law nor by the Statute De circumspecte aegatis cannot imprison for any offence though it be for Heresie Schisme or other erronious crime whatsoever and then by the Statute of 5. R. 2. chapter 5. 2. Statute It was awarded that Commissions should be directed to the Sheriffs and others to apprehend such which should be certified by the Prelates to be Preachers of the Heresie and the Favourers Maintainers and abettors to keep them in strong Prison untill they will justifie themselves by the Law of the holy Church But this was repealed by 5 Ed. 6. 12. And 1 Eliz. 1. And also by the Statute of 2 H. 4. 15. It was ordained that none shall preach or write any book contrary to the Catholique faith or determination of holy Church nor shall make any conventicles of such Sects and wicked Doctrines nor shall favour such preachers Every Ordinary may convent before him any person suspect of Heresie An obstinate Heretick shall be burned in an open place before the People and this Statute was also repealed by 25 H. 8. And 1 Eliz. 1. By expresse words and then by the Statute of 1. H. 7. 4. Power is given to all Arch-Bishops Bishops and other Ordinaries having Ecclesiasticall Jurisdictions to commit Clarks Preists c. To Ward and Prison for Adultery Fornication Incest or any other fleshly Incontinency there to abide for such time as shall be thought to their discretions convenient for the quality and quantity of their Trespas and these were all the Statutes which give Authority to the Ordinary to imprison any man And when the Statute of 1 Eliz. 1. Repealed the first two Statutes of 5 R. 2. 5. and 2 H. 4. 15. It was not the intent that these offences should be unpunished but the Queen would not leave and trust the Bishop which was but a man and when he is made Bishop cannot be removed with such generall and uncontroulable Power and Authority and for that this power and Authority was transferred by the said Statute of 1 Eliz. 1. To high Commissioners which the Queen might countermand at her pleasure and appoint new and so it was transferred from one to many and this Stature did not intend to give other Authority to high Commissioners to imprison any man which the Ordinary himselfe had not before the making of the Statute of 1 El. 1. And it was not the intent of the makers of the said Statute and Act of 1 Eliz. To alter any Lawes but to transfer the power of one to others and it was resolved that for working upon holy dayes the party shall not be punished before the high Commissioners in Reimores Case and it was also resolved in Symsones Case by the Lord Anderson cheife Justice of the Common place and Glanvile they then being Justices of Assise in the same place that a Pursivant came with a Warrant of the high Commissioners to attach one by his Body for Adultery in a lay mans house and was sâ—ain with great deliberation and conference had with the other Judges that that was no Murder but Man-slaughter for they could not attach the Body of any man but ought to proceed by citation and excommunication But it was agreed that they might imprison for Brownisme for that was Herezie besides he maintaind that if the King do not govern his subjects as he ought that his Subjects may and ought to depose him and other such abhominable opinions and further that he might fine for that and he said that one Elyas Brown was hanged for that in the time of the last Queen for that that it doth not appear by the return that Darington hath himself conformed they could not deliver him for they ought to give credit to the return according to 9
H. 6. 46. be it true or not and if it be not true the party may have his action against the officer which doth it and it was adjudged in Fullers Case in the Kings Bench that the high Commissioners may imprison and impose a fine for Heresie and Schisme and it was also resolved that Poligamy before the Statute of the 3. of King James was punishable before the high Commissioners for this was an heynous crime otherwise the Statute would not have made it Felony and he said that it was agreed in the time of the last Queen Elizabeth that the high Commissioners should not meddle with any thing but only those five that is Heresie Schisme Poligamy Incest and Recusancy and with no others and it was moved that a Writ De causione admittenda lieth for that they would not allow of the submissions And the Justices would consider of that and the Prisoner was remanded and it was adjourned And at an other day it was moved by Nicholls Sergeant that the high Commissioners supposed for that that the Statute of 5. El. gives authority to the Queen and to her heires and successors to grant Commission to Visite Reforme Redresse Order Correct and amend all Errours Heresies Schismes Abuses Offences Contempts and Enormities whatsoever and that the Commissioners may execute all the premises according to the Tenure and effect of the said Letters Patents that by that they might fine and imprison at their pleasure But Coke chiefe Justice said that it appeares by the preamble of the said Statute that after the Statute was in the â—5 yeare of the Raigne of King Henry the 8. by which the ancient Jurisdictions Authorities superiorities and Prehemenences were united or restored to the Crown and by meanes of the said Statute his Subjects were continually kept in good order and were dâ—sburthened of divers great and intollerable charges and exactions before that time unlawfully taken and exacted untill such time as the said Statute of 25. H. 8. was repealed by the Statute of 1. and 2. of Phillip and Mary which said Statute of 1. and 2 of Phillip and Mary should be repealed and void by which it appeares that the Kings Subjects were greviously burthened with grevious and intollerable charges and exactions and yet in this time of usurped power of the Pope doth not challenge that he might Commit or Imprison or Fine in any case but in the cases especially mentioned in the last Case aforesaid and for that all the usurped power was annexed to the Imperiall Crown the which he called the clause of annexing the second was the clause of deputation and this was the clause of the Statute by which the Queen hath power to grant Commission to such persons being naturall borne Subjects as her Majesty her Heires or Successors shall thinke fit to Exercise Use and Execute under her Majesty all manner of Jurisdictons Privelidges and Preheminences in any wise touching or concerning any spirituall Jurisdiction in all her Majesties Dominions and to Visit Reforme Redresse Order Correct and amend all such Errors Heresies Schismes Abuses Offences Contemps and Enormities whatsoever which by any manner spirituall or Ecclesiasticall power authority or Jurisdictions can or may be lawfull Reformed Ordered Redressed Corrected Restrained or amended and the third he calleth the clause of execution by which power and authority is given to the Commissioners to Exercise Use and execute all the premises according to the Tenure and effect of the said Letters Patents And it seems it was not the intention of the Statute to give any power to the Commissioners which was not given to the Queen by this Statute for the clause of deputation shall not be more ample then the clause of annextion and then the clause of execution refers to the first too clauses as it appears by the words of that that is to use and execute all the premises according to the said Letters Patents and the premises are expounded by the first clauses that is Errors Heresies Schismes c. And the said Letters Patents refer all Letters Patents before mentioned where the persons are appointed to be naturall borne Subjects and the materiall manner of Jurisdictions Priviledges and Preheminences Ecclesiasticall Siprituall and to Visit Reforme Order Redresse Correct and Amend all such Errors Heresies c. Which by any manner of spirituall or Ecclesiasticall Power Authority or Jurisdiction can or may lawfully be Reformed Redressed Ordered Corrected Restrained or Amended c. So that it cannot be intended that they may proceed in any other forme but only according to the Ecclesiasticall power and Jurisdiction and no other for otherwise they may Fine Imprison and ransome any man at their pleasures which was never intended by the makers of the said Statutes But only to transfer the Power and Authority which at that time was in the Bishops which then were Papistes to the high Comissioners the which the King may alter at his pleasure and so he cannot the Bishops for they are nor displaceable after their consecration Michaelmas 8. Jacobi 1610. in the Common Place A Man was cited before the High Commissioners for Poligamy which was agreed to be a cause examinable punishable there and upon examination of the Cause the Defendant was acquit and yet he was censured to pay costs though that he was acquitted of the Crime and this Court was moved for a Prohibition and it was denyed for they may hold plea of Principall and then Prohibition shall not be granted for the accessary and the Lord Coke said that they have just cause of lawfulnesse of punishing the offence though they have not just cause of the Deed and peradventure it was very suspitious that he was guilty and for that he hath only God for his revenger Parkers Case THree were cyted to appeare in the Court at Chester for Tenths and treble damages demanded and also in the Libell it is suggested that the Land is barren and very unfruitfull and Prohibition was awarded against those joyntly and yet it was agreed that they ought to count upon the Prohibition severally Penns Case PEnn Parson of Ryton in the County of Warwicke sued for Tithes in the Ecclesiasticall Court before the Ordinary and the Defendant here pleads that the same Parson was presented upon a Symonicall contract and for that his Presentation Admission and Institution were void by the Statute of 31. Eliz. And the Symony was for that that it was agreed between the said Parson and another man that was Brother to the Bishop of Lichfield and Coventry who was Patron of the same Church That if he should procure three severall grants of three severall next avoydances to them severally granted to surrender their said severall grants and procure the said Bishop to present him when the Church became void that being then full of an old Parson being deadly sick that he would make to him a lease of parcell of the Tithes of his Rectory And the brother
cheife Justice and Williams Justice thought fit that he should not have a Prohibition for as well the reparations of the Church as the ornaments of that are meerely spirituall with which this Court hath nothing to do and Flemming said that such Tax is not any charge issuing out of Land as a rent but every person is taxed according to the value of the land but Yelverton and Fenner to the contrary that a Prohibition did lye for the same diversity which hath been conceived at the Barr and also they said that he which dwells in another Parish doth not intend to have benefit by the ornaments of the Church or for the Sextons wages and for that it was agreed by all by the cheif Justice Williams and the others that if Tax be made for the reparation of Seates of the Church that a forrainer shall not be taxed for that because he hath no benefit by them in particuler and the Court would advise Michaelmas 8. Jacobi in banco Regis HEnry Yelverton moved the Court for a Prohibition to the Admiralty Court and the case was there was a bargain made between two Merchants in France and for not performance of this bargain one libelled against the other in the Admiralty Court And upon the Libell it appeared that the bargain was made in Marcellis in France and so not upon the deep Sea and by consequence the Court of Admiralty had nothing to do with it and Flemming cheife Justice would not grant Prohibition for though the Admiralty Court hath nothing to doe with this matter yet insomuch as this Court cannot hold plea of that the contract being made in France no Prohibition but Yelverton and Williams Justices to the contrary for the bargain may be supposed to be made at Marcellis in Kent or Norfolke or other County within England and so tryable before us and it was said that there were many presidents to that purpose and day given to search for them Note upon a motion for a Prohibition that if a Parson contract with me by word for keeping back my owne tithes for 3. or 4. years this is a good bargain by way of Retayner and if he sue me for my Tithes in the Ecclesiasticall Court I shall have a Prohibition upon this Composition But if he grant to me the Tithes of another though it be but for a yeare this is not good unlesse it be by Deed see afterwards Westons Case A Merchant hath a Ship taken by a Spaniard being Enemy and a moneth after an English Merchant with a Ship called little Richard retakes it from the Spanyard and the owner of the Ship sueth for that in the Admiralty Court And Prohibition was granted because the Ship was gained by Battaile of an Enemy and neither the King nor the Admirall nor the parties to whom the property was before shall have that according to 7 Ed. 4. 14. See 2. and 3. Phillip and Mary Dyer 128. b. Michael 8. Jacobi 1610. in the Kings Bench. A Man sues an Executor for a Legacy in the Spirituall Court where the Executor becommeth bound by his deed obligatory to the party to pay that at a certain day befoâ—e which this suit was begun in the Spirituall Court and the Executor moved for a Prohibition and it was granted for the Legacy is extinct but by Williams if the Bond had been made to a stranger the Legacy is not extinct Fenner seemed that it was so Hillary 1610. 8. Jacobi in the Kings Bench. Robotham and Trevor THe Bishop of Landaff granted the Office of his Chancellor-ship to Doctor Trevor and one Griffin to be exercised by them either joyntly or severally and it was informed by Serjeant Nicols that Dr. Trevor for 350. l. released all his right in the said Office to Griffin so that Griffin was the sole Officer after died and that after that the Bishop granted the same Office to one Robotham being a Practitioner in the Civil Law for his life And that Doctor Trevor surmising that he himselfe was the sole Officer by survivor-ship made Doctor Lloyd his Substitute to execute the said Office for him and for that that he was disturbed by Robotham the said Doctor Trevor being Substitute to the Judge of the-Arches granted an Inhibition to inhibite the said Robotham for the executing of the said Office and the Libell contains That one Robotham hindered and disturbed Doctor Lloyd so that he could not execute the said Office And against this proceeding in the Arches a Prohibition was prayed and day was given to Doctor Trevor to shew cause for why it should not be granted And they urged that the Office was spirituall and for that the discussing of the Right of that appertaineth to the Ecclesiasticall Courts But all the Judges agreed That though the Office was Spirituall to the exercising of that yet to the Right it was Temporall and shall be tryed at the Common Law for the Party bath a Free-hold in this see 4. and 5. of Phil. and Mary Dyer 152. 9. Hunts Case for the Office of the Register in the Admiralty and an Assize brought for that and so the cheife Justice saith which was adjudged in the Kings Bench for the Office of the Register to the Bishop of Norwich between Skinner and Mynga which ought to be tryed at the Common Law And so Blackleeches Case as Warberton saith in this Court for the Office of Chancellor to the Bishop of Gloucester which was all one with the Principall case And they said that the Office of Chancellor is within the statute of Edw. 6. for buying of Offices And Warberton also cited the case of 22. H. 6. where action upon the case was maintained for not maintaining of a Chaplain of the Chamber in the private Chappel of the Plaintiff very well though it was spirituall for the Plaintiff hath inheritance in that But if it had been a parochial Church otherwise it shall be for the infiniteness of the Suits for then every Parishoner may have his action And so in manner of Tything the prescription is temporall and this is the cause which shall be tryed at the Common Law and Prohibition was granted according to the first Rule Hillary 8. Jacobi in the Common Bench. AN Attorney of the Kings Bench was sued in the Arches for a Legacy being Executor as it seems and it was urged that hee inhabited in the Diocess of Peterborough And for that that he was here remaining in London in the Tearm time he was sued here and upon that a Prohibition was prayed and it was granted accordingly For as the Lord Coke said Though that he were remaining here yet he was resident and dwelling within the Jurisdiction of the Bishop of Peterborough and he said that if one Lawyer cometh and remaineth during the Tearm in an Inne of Court or one Attorney in an Inne of Chancery but dwelleth in the Country in another Diocesse he shal not be sued in the Arches Master Brothers
be avoyded and also he seemed that they could not examine any lay man upon his Oath But in causes Matrimoniall and Testamentary and he said that so was the common Law before the making of that Statute of Articulis cleri as it appears by a Canon made by Ottamon which was a Legate A Latere from the Pope in the 22 H. 3. and Canonicall by which is recited that where such were drawn in length because that lay men were examined upon their Oathes and therfore it was provided that lay men should be examined upon their Oathes although it did not concern causes Testamentary nor Matrimoniall the custome of England to the contrary thereof notwithstanding see Fitzherberts Natura brevium 41. a. Cromptons Justice of Peace fol. 59. b. Register 36 b. and Hyndes Case 18. Eliz. or the Margin in Scrogs case Dyer 175. b. So also Lamberts Justice of Peace that those things are to be given in Charge by the Justice of Assise and Coke saith that the Writ in the Register was framed before the Statute of Articuli cleri And also he cited one Lees Case who was committed for hearing of a Masse and refused to be examined upon that upon his Oath and had a prohibition and so he agreed that a Prohibition should be granted and upon that it was awarded accordingly Note that a Prohibition was granted to the high commission Court for that that they examined the lawfullnesse of a Marryage Symonds against Greene. NOte one suit was before the high Commissioners and 16. were brought by Pursivants before them for that that they were present at a Clandestine marraige and it was urged that this was not to be punished by any inferior Ordinary in any of their consistories for the contract was made in the Diocesse of the Bishop of Worcester and the marriage in the Diocesse of Glocester and the Preist which married them inhabited in the Diocesse of Oxford And yet Prohibition was awarded and the Justices were of the opinion that every of them for which the Pursivant was sent might have an action of false imprisonment against him for they cannot use any other processe but cytation only Admirall Court NOte that it was urged by Haugton that the intent of the Statute of 13 R. 2. chapter 5. Was not to Inhibite the Admirall Court to hold Plea of any thing made beyond Sea but only of things made within the Realme which pertaines to the common Law and is not in prejudice of the King or common Law if he hold plea over the Sea and that this was the intent of the Statute appeares by the preamble But to this Coke saith that the office of the Admirall was an ancient office though it hath been otherwise conceived by some for he hath seen Records and Libells and proceedings in the time of King Iohn where he was called Marina Anglie in the time of Ed. 3. And also he said that the words of the Statute are in the negative That is that the Admirall nor his Deputy doe not meddle from henceforth of any thing done within the Realme but only or things done upon the Sea and he said that it was adjudged in one Wrights case that a thing made at Constanticople shall notbe tried in the Admiralty for itought to be made upon the deep Sea otherwise they shall hold no trial of that see 48. or 50. of Ed. 3. 2 Ed. 2 F obligation and if a man be slaine or murthered beyond Sea the offender shall not be punished in the Admiralty Walmesly and Warburton Justices agree that if a thing be done beyond the Sea and may be tried by the common law there the admirall Court shall have no Jurisdiction But if an obligation beares date beyond Sea or be so locall that it cannot be tried by the common law there if the Admirall hold Plea of that Prohibition shall not be awarded for it is not to the prejudice of the King nor of the common law But if the party can have his remedy by the common law the common law shall be preferred And if at the common law one matter comes in question upon a conveyance or other Instrument made beyond Sea according to the course of the civill law or other law of the Nations where it was made the Judges ought to consult with the Civilians or others which are expert in the same law and according to their information give Judgement though that it be made in such forme that the common law cannot make any construction of it Michaelmas 8. Jacobi 1610. in the common Bench. IF a Parson agree contract withme that I shall keep back my own tithes if that be made after that I have sown my Corn and for the same year only this shall be good and if the Parson sue in the spirituall Court for tithes I shall have a prohibition but if it be for more years then one or before the Corn be sowed this shall not be good by Coke and Foster against Warburton and Coke said it was adjudged in the Kings Bench in Parson Boothes Case that a contract made with a parishioner for keeping back of his tithes for so many years as he shall be Parson was not good and so it was Wellowes Case here also but it was agreed by them all that such a contract or agreement for the tithes of any other was void but only of the party himself which was party to agreement and that ought to be made by way of keeping them back See before Easter 8. of James See 20 H. 6. and the 21. H. 7. 21. b. Pasche 1611. 9. Jacobi in the Common Bench. THE question was upon a motion to have a Prohibition to the President and Councell of Wales if that shall be granted without action hanging And Coke cheife Justice said that the Record of the booke of 38. H. 6. agreed with the Report and is witnesse John Prisott and 2. Ed. 4. Is adjudged in the point but yet he advised that there shall be information Walmesley Justice said that this is no action But Coke Foster and Warburton said that it is an action fufficient upon which a Prohibition shall be granted and Coke said that if they hold Plea of a thing out of their Instructions he would grant Prohibition without action hanging But if they proceed in erronious manner in a thing which is within their Instructions he would not grant Prohibition without action hanging or Information Sir William Chanceys Case SIr William Chancey was cited before the Ordinary of the Diocesse of Peterbrough and sentenced to do Pennance for Adultery and this he commuted and after that he lived in Adultery with one in his house and had two Bastards by her and continued in Adultery with her for many yeares and for that he was cited before the high Commissioners and for that that he would not allow his wife competent allimony who had seperated himselfe from her company in respect that he lived in
Adultery as aforesaid and for that that he refused to become bound to performe the order and the sentence of the high Commissioners he was committed to the Fleete and he praied Habeas Corpus for his Inlargement and also a Prohibition to be directed to the high Commissioners and it was moved by Nicholls that fining is not Justifiable by the high Commissioners no more then Imprisonment he sayd that he was cited out of his Diocesse against the Statute of 23. H. 8. The which Statute is commanded to be put in execution by the Stat. of 1 El. Secondly the offence that is Adultry is not an Enormious-crime and for that shall not be punished by the high Commissioners as it appeares By the Statute of 1. El. But by the Ordinary Thirdly the high Commissioners by the Stat. of 1 El. ought to observe the same course and order in their proceedings that the Ordinary used before the making of the Statute of 1. El. c. That they could not fine nor Imprison But he agreed that the Statute 1 H. 7 gives authority to the Ordinary to Imprison for Adultery but then the person ought to be Ecclesiasticall so that he agreed if Sir William Chancey had been an Ecclesiasticall person the Ordinary might Imprison him for Adultery and for Allimony they ought to give no remedy if the Husband would inhabit together with his wife as he sayd Sir William Chancey desired But if the Husband refuse to dwell together with his wife or thrust her out of his house and will not suffer her to dwell with him then the Ordinary may compell the Husband to allow allimony for his wife but the high Commissioners ought not to proceed upon that for this is no erronious crime for by that the party shall loose his benefit of Appeale which he hath from the Ordinary to the Metrapolitan for here the party cannot appeale to any nor hath any remedy If the Queen will grant Commission to reneue and so he concluded that for that these matters appeare upon the returne of the Habeas Corpus to be the causes of his commitment he praied that Sir William Chancey might be delivered out of Prison and prohibition of staying the proceedings of the high Commissioners Doderidge the Kings Serjeant for the case of Sir William Chancey argued that the returne consisted of two parts That is Adultery and Allimony and to the manner of the proceedings he would not speake for he said that the Court had ajudged that the high Commissioners by the Statute of 1. Eliz. Ought not to proceed upon any offences but those which are Enormious but he intended that the offence at the first was not Enormious being but Adultery and Allimony yet when Sir William Chancey was sentenced for that before the Ordinary and then commuted his pennance and after that lived divers yeares in Adultery with two severall women and had two Bastards and then he became Incorrigible and by consequence the offence is become Enormious and is properly to be determined before the high Commissioners and so praied he might be sent backe and that no Prohibition should be granted and at another day Foster and Warburton said that the high Commissioners ought not to meddle with these matters Nor could not Fine nor Imprison for that But Walmesley said that the Statute of 1. Eliz. Hath referred that to the discretion of the King and the King by his Commission hath given them power to meddâ—e with that and also he seemed that this was an Enormious crime for this is against an expresse commandment that is Thou shalt not commit Adultery and he intends there can be no greater offence then that and it seems to him that the word Enormious ought not to be so expounded as it is expounded by the other Judges that is an Exorbitant crime but Enormious is where a thing is made without a rule or against Law for in every action â—f trespasse the word is used Et alia enormia ei intulit and yet these are not intended Exorbitant offences but other trespasses of the nature of them which are first expressed perticulerly and so the Statute hath been expounded for many yeares and to the Imprisonment he said that the high Commissioners have Imprisoned for the space of 20. yeares and though that the Statute doth not give power to them to Imprison yet this is contained within the Letters Patents and the statute hath given power to the King to give to them what authority he pleaseth by his Letters Patents and for that that it hath been used for so long a time he would not suddainly alter that but gave day till the beginning of the next Tearm for the argument of that Coke cheif Justice said that it was agreed by all that the Imprisonment was unlawfull and if a Person be imprisoned which hath the Priviledge of this Court this Court may deliver him without Bayle for the King is the supream head by the Common Law as to the coercive power and that the Letters Patents of the King cannot give power to imprison where they cannot imprison by the Common Law and so it was adjudged in Sympsons Case 42. Eliz Which was cited before the high Commissioners for adultery with Fists Wife and adjudged there that they cannot imprison for that and he saith that an exposition with the time is the best and for that see the ninth of Eliz. Dyer and the 18 of Eliz. And also it appears by the Statute of 5. Eliz. that awards a Capias excommunicatum which could not be imprisoned before that and upon this Sir William Chancey was bayled and after by meditation of the Metrapolitan he was reconciled to his wife and this was the end of this Businesse Pasch 9. Jacobi 1611. in the common Bench. As yet Urrey against Bowyer HVtton Serjeant argued for the Defendant the question is if lands which were parcell of the Possessions of the Hospitall of Saint Iohns of Jerusalem should be discharged of tythes by the statute of 31. H. 8. or 32. H. 8. in the hands of the Patentee and he seemed that the priviledge was personall and annexed to persons of the said order for it is confessed that it came by reason of the order of the Cestercians as appeares by the Canon The words of which are that they should hold their lands c. Also it appeares by the statute of 2. H. 4. 4. That it is personall by which it was enacted that the religious of the order of Cestercians that had purchased Bills to be discharged to pay tythes should be in the state they were before by which it appeares that it is annexed to their persons and not to their lands so that their Farmers cannot take benefit of that Secondly the priviledge was annexed to this order by canon which is a thing spirituall and hath no power to meddle with the lands of any man but the proceeding of that ought to be by inhibition or excommunication see 11. H. 4. 47. 19.
any private Prison And it seemes if any do against this Statute that an action of false Imprisonment lies For every one ought to be committed to the Common Goal to the intent that he may be dilivered at the next Goale delivery and also if any be committed to any of the Counters in London unlessthat it be for debt that an action of false Imprisonment lieth for that for these are private Prisons for the Sheriffes of London for Debt only Note in Debt for ten pound the Defendant confesseth five pound and for the other five pound pleades that he oweth nothing by the Law and at the day the Plaintiff would have been nonsuited And it was agreed by all that if he be nonsuited that he shall loose all as well the debt confessed as the other Note the yeare of the Reigne of the King was mistaken in the Record of nisi prius but the Record which remaines in the Court was very well and it was amended For insomuch that it was a sufficent and certaine Issue this was sufficent Authority to the Justices of nisi prius to proceed but nothing being mistaken but the yeare of the Reigne this shall be amended for it is only the misprision of the Clark see Dyer 260. 24 25. 9. Eliz. 11. H. 6. Note also if Tenant in Dower be disseised and the Disseisor makes a Feoffment the Tenant in dower shall recover aâ—l their dammages against the Feoffee for she is not within the Statute of Glocester chapter 1. By which every one shall answer for their time Hillary 8. Jacobi 1611. in the Common Bench. Reyner against Poell See Hillary 6. Jacobi fol IN second deliverance for copy-hold in Brampton in the County of Huntington the case was copy-hold Lands were surrendered to the use of a woman and the Heires of her Body and she took a Husband the Husband and the Wife have Issue 2. Sonnes and after Surrenders to themselves for their lives the remainder to the eldest Son and his Wife in fee the Husband and the Wife dye the eldest Son dies the youngest Son enters and Surrenders to the use of a stranger And the sole question upon which they relied if the Wife was Tenant in tayl or if she had fee simple conditionall and it was argued by Nicholls that the Wife was Tenant in tayl and to prove that he cited 2. cases in Littleton where it is expresly mentioned who may be Tenant in tayl see Sect. 73. 79. And who may have a Formedon see in the discender sect 76. And he grounded that upon reason for that that it cannot be denied But that fee simple might be of copy-hold according to the custome and as well as fee simple as well it may be an estate tayl for every greater containes his lesse and he said that this is grounded upon the reason of other cases as if the King grant to one to hold Plea in his Court of all actions of debt and other actions and then one action of debt is given in case where it lieth not at the common Law yet the Grantee may hold Plea of that But if a new action be framed which was not in experience at the time of the grant but is given after by Statute the grant shall not extend to that and to the Objection that copy-hold is no Tenement within the Statute of gifts c. As to that he saith that that shall be very well intended to be within the Statute as it is used and 4. H. 7. 10. A man makes a gift in tayl by deed the Donee hath an estate tayl in the deed as well as in the Land so Morgan and Maxells case Commentaries 26. And so of Office Honour Dignity and copy-hold also and Dyer 2 and 3. Phil And Mary 114. 61. It is found by speciall verdict that copy-hold Lands have been devisable by copy in tayl and so it is pleaded 2 and 3 Eliz. Dyer 192. b. And when a lesser estate is extracted out of a greater that shall be directed and ordered according to the course of the Common Law and for that the Wife shall have plaint in nature of a Cui in vita and 15. H 8. b. Title Tenement by copy of Court Roll it was said for Law that tayl may be of a copy-hold and that Formedon may well ly of that in descender by protestation to sue in nature of a Formedon in descender at the Common Law and good by all the Justices for though that Formedon in descender was not given but by Statute Yet now this Writ lieth at the Common Law and shall be intended that this hath been a custome time out of mind c. And the Demandant shall recover by advise of all the Justices and the like matter in Essex M. 28. H. 8. And Fitz. affirms that in the chamber of the Dutchy of Lancaster afterwards and also he saith that when custome hath created such Inheritances and that the Land shall be descendable then the Law shall direct the discent according to the Maximes and Rules of the Common Law as incident to every estate discendable and for that shall be possessio Fratris of a copy-hold estate 4. Coke 22. a. Brownes Case b. And there 28. a. Gravener and Tedd the custome of the Mannor of Allesley in the County of Warwick was that copy-hold lands might be granted to any one in fee simple and it was adjudged that a grant to one and the Heires of his Body is within the Custome for be that Estate Tayl or Fee simple conditionall that is within the Custome So he may grant for life or for yeares by the same Custome for Estate in Fee simple includes all and it is a Maxime in Law to him that may do the greater it cannot be but the lesse is lawfull and over he said that in all cases where a man was put to his reall action at the Common Law in all these cases a copy-holder may have plaint with protestation to prosecute in â—…re of the same action and to the objection that there cannot be an Estate tayl of copy-hold Land for that that the Tenant in tayl shall hold of him in revertion and shall not be Tenant to the Lord to that he said that this Estate may be created as well by Cepit extra manus Domini as by Surrender and then there is not any reversion or remainder but it is as if Rent be newly granted in tayl but he said there may be a reversion upon an Estate tayl as well as upon an Estate for life and he did not insist upon the Custome but upon this ground that if the Custome warrant the greater Estate which is the Fee simple the lesse shall be included in that And he did not argue but intended that it would be admitted that discent of copy-hold Land shall not take away entry nor Surrender of that nor shall make discontinuance so prayed Judgement and â—…rne Harris the youngest Serjeant argued for the Plaintiff that it shall be
of his confirmation and not by the first see 11. R. 2. Grants 9. Ed. 3. 4. 12. R. 2 Feoffments 58. See Perkins fol. 8. b 9. a. Grants 10. Eliz. Dyer 279. 4. Hillary 8. Jacobi 1610 In the Common Bench. Styles against Baxter STyles brought an Action upon the case against Baxter for calling him perjured man the Defendant justified that he was perjured in such a Court in such a deposition and so pleaded that certainly and it was found for the Defendant at the Nisi prius and Judgment was given accordingly and the Defendant afterwards published the same words of the Plaintiff upon which he brought a new Action for the new publication in which the Defendant pleaded in Barr the first Judgment upon which the Plaintiff demurred and it was adjudged without any Contradiction that it was a good Barr. Hillari 8. Jacobi 1610. In the common Bench. Andrewe against Ledsam in the Star Chamber ANdrewe exhibited his bill in the Star Chamber against Ledsam the matter Andrew being a rich Usurer delivered to Ledsam being a Scriâ—ener one thousand pound to be imployed for him for Interest that is for ten pound for the use of every hundred pound for every yeare Ledsam being a Prodigall man as it seemes spent the Money and delivered to Andrewe diverse severall obligations every of them containing three severall persons well known to be sufficient being some of them Knights others Gentlemen and Esquires of great Estates and the other good Citizens without exceptions were bound to Andrewe in two hundred pound for the payment of one hundred sixty pound to Andrew at a day to come within six Moneths then next comming as Andrew had used before to lend his Money and delivered the Obligations with Seales unto them and the names of the parties mentioned to be bound by that subscribed and his own name also subscribed as witnessing the sealing and delivery of them as a publique Notary aâ— the good and lawfull obligations of the Parties which were mentioned in them where indeed the parties mentioned in them had not any notice of any of them But Ledsam had forged and counterfeited them as he hath confessed upon his Examination upon Interrogatories administred by the Plaintiff in this Court and at the hearing of the Cause and sentence of that it was moved if Ledsam shaâ—l loose both his Eares or but one for if it be but one forgery then by the Statute of 5. Eliz. Admitting that the Bill is grounded upon this Statute he shall loose an Eare and pay the double dammageâ— and cost to the party greeved And also if Andrew being but the Obligee and not any of the parties in whose names the Obligations were forged if he be such a party greived which shall have double costs and dammages and these doubts were resolved by Coke cheife Justice of the Common Bench where they were moved and Flemming cheif Justice of the Kings Bench that Ledsam should loose but one eare for that shall be taken as one forgery for that it was made at one time and also that Andrew was the party greived within the Statute but Coke said that the Bill was generall that is against the Lawes and Statutes of the Realme and not precisely upon the Statute of 5. Eliz. For he said that when a Bill is founded upon an Act of Parliament that this ought to containe all the branches which are mentioned in the Act the which wants in this Bill but insomuch that it was adjudged in Parliament what punishment such offenders shall have they inflicted the same punishment which is appointed by the Statute and added to that that he should be Imprisoned till he found good Suerties for his good behaviour and also that hee shall be brought to every one of the Kings Courts at Westminster with great Papers in his hatt containing his offence in Capitall letters but the Lord Chancellor expounded the double dammages in such manner that is that they shall not be intended double Interest but only the Principall Debt Note that if Execution be directed to a Sheriffe to Arrest any man or to make Execution within a Liberty And the Sheriffe direct his Warrant to a Bayliffe of the Liberty for to make Execution of the Processe which makes it and after is a Fugitive and not able to answer for that the Lord of the Franchise shall answer for that and shall be liable to answer for his Bayliffe by all the Justices Burdett against Pix IN Debt upon a single Bill by Burdett against John Pix as administrator of Freewen the case was this that is Freewen was bound in an Obligation of thirty four pound to Burdett the Plaintiff and was also bound to one William Pix in 80. l. Freewen dyed Intestate and the Letters of Administration of his Goods were Committed after his Death to the said John Pix the Defendant and the said William Pix also made the said John Pix the Defendant his Executor and died and the Defendant in this Action pleads that the said Freewen was indebted to the said William Pix and that he was his Executor and that he had Goods of the said Freewens sufficient to satisfie the said debt the which he retained for the satisfaction of that and that over that he hath not of his to satisfie him upon which the Plaintiff Demâ—…or that that the Defendant doth not plead that he hath â—…is election to retaine the said goods for the satisfaction of â—…own said Debt before the Action brought and by all the Justices he ought to make his election before the bringing of the Action otherwise he shall be charged with the other Debt See Woodward and Darcyes Case Commentaries 184. a. and 4. Cook 30. Coulters Case Hillary 8. Jacobi 1610. in the Common Bench. Bone against Stretton THe case was this A man seised of two Acres of Land makes a Lease for years of one Acre to one and another Lease for yeares of the other Acre to another and then he enters and makes a Feoffment and severall Liveryes upon the severall Acres and one of the Lessees being present doth not assent to the said Livery and the use of the said Feoffment was not the use of his last Will and then he declares his last Will and by that recites the said Feoffment and then declares the use of that to be to the use of himself for life the remainder over to a stranger and after the Tenant for years which did not assent to the Livery grants his Estate to the Feoffor and the Feoffor dies and Nicholls Serjeant moved first That this enures as a grant of a reversion and that the grant of the perticuler Tenant enures first as an Attornement and then as a surrender of his Estate as if it had been an expresse surrender and all the Justices agreed that this doth not enure to make Attornement and surrender as expresse surrender will for an expresse surrender admits the reversion to be in the Grantee to whom the surrender is made
is no parcell of the Bill and for that it need not to be contained in the Count 9 H. 6. 15 16. A thing which doth not intitle the Plaintiff to action need not to be contained in the Count 36 H. 6. 6. If the condition be indorced or subscribed it need not to be contained in the Count but if it be contained before the in witnesse then it ought to be contained in the Count 21 Ed. 4. 36. If a man be bound to pay ten pounds when the Obligee carries two hundred load of Hay to his House there the condition is precedent and it ought to be contained in the Count 22 Ed. 4. 42. accordingly so here the matter is subsequent to the in witnesse and there is not any other matter upon which the action is founded nor contained in the body of the Bill nor to be performed by the Obligee and for that he prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant that the sealing is immediately after the Proviso and is adjoyning to the Bill in writing and for that be it to be performed of the part of the Plaintiff or Defendant it ought to be mentioned in the Count for this intitles the Plaintiff to his Action of the case in 36 H. 6. 6. It is a condition subsequent and there need not to be shewed but if the condition be precedent and contained in the writing before the insealing there it ought to be mentioned in the Count and in this principall case this is either a condition Precedent or nothing for it is that he shall not be compelled to pay the sayd ten pounds untill he had recovered thirty pound and if he never recover he never shall pay the ten pound and it is a condition of the part of the Defendant and it is adjudged in Vssards case that where a condition is precedent there it ought to be contained in the Count but where it is subsequent otherwise it is So 15 H. 7. 1. Grant that when the Grantor is promoted to a Benefice that he ought to give to the Grantee ten pound this is precedent but in the principall case it is a Condition or Covenant and though that it be subsequent yet it may stay the Suit as well as an acquittance which is to be an acquittance if he be vexed otherwise not but a condition that he shall not sue the Bill is void for it is contrary to that and barrs him of all the fruit of that and precedent condition may be placed after the in Witnesse as well as before so he prayed Judgment for the Defendant Coke cheife Justice said that this which is after in witnesse is not part of the Deed but may be a Condition or Defeasance but if it be not in witnesse in the Deed then it shall be parcell of the Bill but though that this be put after the in witnesse yet it shall have his force as Defeasance but it need not to be contained in the Count for in Bonds and personall things there need not such strict words as in other Deeds and for that this shall be a good Condition or Defeasance but then the Defendant ought to have that so pleaded and not demurr for this makes the Bill conditionall VVarberton and Foster agreed VValmesley did not gainsay it and for that it was adjudged for the Plaintiff if the Defendant did not shew cause to the contrary by such a day which was not done Note It was adjudged by all the Justices that fealty gives seisin of all annuall services sufficient to make seisin in avowry but not in Assise but of accidentall services this gives seisin in Assise and a man cannot take excessiive distresse for that for this is more sacred service as Littleton saith of Homage the most honourable See 42 Ed. 3. 26. 11 H. 4. 2. Note Two retaine an Attorney both dye the Executor or Administrator of the survivor shall be onely charged and not the Executors of them both for a personall contract survives of both parties otherwise of reall contracts as warranty See 16 H. 7. 13. a. 3 Coke Sir William Harberts Case 30 Ed. 3. 40. 17 Ed. 3. 8. The Attorney brought an Action of Debt against both and the Executors of both the parties which retained him for his Fees and both pleaded joyntly that they detained nothing and it was found for the Plaintiff and upon motion in arrest of Judgement the Judgement was stayed insomuch that the Executor of the survivor was onely chargeable notwithstanding the pleading and admission of the Parties Note That it was agreed by all the Justices that by the Law of Merchants if two Merchants joyne in Trade that of the increase of that if one dye the other shall not have the benefit by survivor See Fitzherberts Natura brevium Accompt 38 Ed. 3. And so of two Joynt Shop-keepers for they are Merchants for as Coke saith there are foure sorts of Merchants that is Merchant Adventurers Merchants dormants Merchants travelling and Merchants residents and amongst them all there shall be no benefit by survivor Jus accrescendi inter Mercatores locam non habet Note That Arbitrators awarded that every of the parties should pay onely five shillings for writing the award to the Clark and agreed that the award was voyd to that part and good for the residue for they cannot award a thing to be made to a stranger Action upon the Case was brought for these words He is a Cozening Rogue and hath cozened Richard Wood of thirty pound and goeth about to doe the like by me and agreed that the action doth not lye So for Rogue or Cozener for it is without aspersion and gentle and words shall be taken in the gentlest sense Devise that Executors shall sell Land with the assent of J. S. if J. S. dyes before that he assents the Executors shall not sell notwithstanding the death of J. S. was the act of God and in the life time of J. S. they could not sell without his consent and so it was agreed in the Case concerning Salisbury Schoole where the under Schoole-Master was to be placed by the head Schoole-Master with the assent of two cheife Bailiffs and it seems the head Schoole-Master cannot place without their consents Note it was said to be adjudged that the Inhabitants of a Town cannot be incorporated without the consent of the major part of them and incorporation without their consent is void In action upon the case the case was this The Brother of the Defendant spoke these words to the Plaintiff that is Thou Theif thou Goale whelpe thou hast stolne a peice of Silver from my Master Hocken and the Defendant sayd as insued that is That which my Brother spake is true I will justifie it and spend a hundred pounds in proofe thereof and it seems to the Court that the Action doth not lye against the Defendant insomuch that it doth not appeare by the Court that
that Sir Thomas Fitzherbert had the possession by acceptance of the surrender of the estate conveyed to William Fitzherbert and his Wife notwithstanding it was admitted by pleading that he had that by Disseisin And all the Justices agreed that the Jury shall not be concluded by the pleading of the parties insomuch that they are sworn to speake the truth Pasche 1612. 10. Jacobi in the Common Bench. Brook Plaintiff against Cobb IN Wast the Plaintiff assignes waste in cutting down of 20. Oaks in such a Close and 40. Oaks in such a Close c. Upon the Evidence it appears that the said Oaks were remaining upon the Land for standils according to the statute at the last felling of that and they were of the growth of 16. or 20. years and that tithes were paid for it And it was agreed by the Lord Coke and all the Justices that this was no Waste insomuch it was felled as Acre wood And it was said by the Lord Coke that though it be of the age of 20. or 24. yeares yet if the use of the Parties be to fell such for seasonable Wood this shall not be Waste and if Tithes be paid for that it appears that it is no Timber Doctor Mannings Case in the Star-chamber ONe Golding as an Informer and not as party greived exhibits his Bill in the Star-chamber against Doctor Manning Chancellor to the Bishop of Exeter for Extortion Oppression and other offences It was resolved that when a Bill contains any particular offences and after the same Bill contains generall words which includes many offences of the same kind And the Plaintiff proves the particular offences he may examine other particular offences also included within these generall words in supplement and aggravation of the particular offences contained in the Bill and if they be proved the Court will give the greater and high sentence against the Defendant in respect of them notwithstanding that they be not particularly expressed in the Bill But if the Plaintiff hath not proved any of the offences particularly expressed in the Bill the Defendant shall not be censured by the particulars grounded upon the generall words of the Bill And if a man which is not party greived exhibite Bill for offence made to another person as against whom the offence was committed he shall not be allowed as Witnesse insomuch as he is party greived and by that he should be a witnesse in his own Cause Pasche 1612. 10. Jacobi in the Common Bench. William Peacock Plaintiff against Sir George Raynell IN the Sar-chamber the Plaintiff exhibits his Bill against the Defendant for Libelling and Infamous Letters the which was in this manner The Plaintiff being Heire generall to Richard Peacock which was of the age of eighty six yeares and had Lands of Inheritance to the value of 8. or 900. pound per annum and the Defendant had married the Daughter of Sir Edward Peacock which was a yonger brother of the said Richard Peacock and the said Defendant perceiving that the said Richard Peacock had purpose to settle his Inheritance upon the said Plaintiff and intending to remove the affection of the said Richard from the Plaintiff and to settle that in himselfe writes a Letter to the said Richard Peacock containing that the Plaintiff was not the Son of a Peacock and was a hunter of Tavernes and that divers women had followed him from London to the place of his dwelling and that he did desire to heare of the death of the said Richard and that all his Inheritance would not be sufficient to satisfie his Debts and many other matters concerning his Reputation and Credit to that subscribed his name this ensealed directed to the said R. Peacock And it was agreed that this was a Libell and for that the Defendant was Fined to two hundred pound and Imprisonment according to the course of the Court And the Plaintiff let loose to the Common Law for his recompence for the Damages he hath sustained But if the Letter had been directed to the Plaintiff himselfe and not to the third person then it should not have been a Libell or if it had been directed to a Father for Reformation of any Acts made by his Children it should be no Libell for it is not but for Reformation and not for Defamation for if a Letter containe scandalous matter and be directed to a third person if it be Reformarory and for no respect to himselfe it shall not be intended to be a Libell for with what mind it was made is to be respected As if a man write to a Father and his Letter containe scandalous matter concerning his Children of which he gives notice to the Father and adviseth the Father to have better regard to his Children this is only Reformatory without any respect of profit to him which wrote it But in the first case the Defendant intended his profit and his owne benefit and this was the difference Pasche 1612. 10. Jacobi In the Common Bench. Randall Crewe against Vernon IN the Star-chamber it was resolved That if the Defendant do not performe the Sentence of the Court as here he was to make acknowledgement of his offence committed against the Court of Exchequer at Chester and this acknowledgement was to be made at the great Assises at Chester and he did nor performe the Sentence and yet the Defendant could not be fined for this contempt but only Imprisonment and for that he was committed close Prisoner till he performed it But he could not be fined insomuch there was not any Bill upon which this Sentence should be founded Pasche 1612. 10. Jacobi in the Common Bench. Charnocke against Corey See before IN Debt against Administrator The Defendant pleades two Recognisances acknowledged by the Intestate which were not satisfied and that he had not any Goods or Chattells of the said Intestate unlesse Goods and Chattells which did amount to the Debts due by the said Recognisances And it seemed to all the Justices that the Plea was not good But that the Defendant ought to plead according to the Common forme that is that he hath no Goods besides or beyond the Goods to satisfie the two Recognisances or that he hath no Goods to such value which do not amount to the said Sums due by the two Recognisances And in these cases this manner of pleading is Implied confession that he hath Goods of such a value and so they should be assets if the Recognisances be discharged or remaine of Covin and fraud to deceive Creditor Pasche 1612. 10. Jacobi in the Common Bench Bicknell against Tucker see before 75. THE Case was A Copy-hold Estate was granted to one for life remainder to another for his life the first Copy-holder for life accepts a Bargaine and Sale of the free-hold from the Lord and after that levies a Fine with proclamations and five yeares passe and then he dies and if this Fine shall be a Barr to him which
without title he may have an action of Covenant for the Lessor hath the Evidences and ought to defend the possession of his Lessee and the right also and damages are only to be recovered and so is the difference between a Lease and Inheritance though that the words of the Covenant are all one And also he said that it may be objected that the Incorporation was not well pleaded by Edw. 6. Insomuch that he doth not say after the Conquest for Ed. 3. was Ed. 6. in truth sor there were 3 Edwards before the Conquest and he was the third after And he saith that he hath known many exceptions to be taken to that but hath not known any of them to be allowed and for that he will not insist upon it But the principal matter upon which he insists was that it doth not appear by the pleading that the Deane which made the Lease was dead and it appears by the pleading that he entered in 4 Jacobi and was seised and then of necessity ought to be living and such averment of his life is sufficient as it is agreed in the 13 Eliz. Dyer where a Parson made a Lease for years and the Lessee brought an Ejectione firme and in pleading it was said that the Parson is seised of the reversion and this was allowed to be good without other averment of his life for he cannot be seised if he be not living and then if the Deane shall be intended to be living then they all agreed that the Lease shall be good against him for it was adjudged in this Court between Blackeleech and Smal that if a Bishop makes a Lease for years and after makes a Lease for life the Lease for years being in Esse and dyes and the Successor accepts Rent this shall bind him and by this it appears that the Lease was good against the Dean himself which made it and also against the Successor till he enter and avoid it and then by consequence the action of Covenant shall be very well maintainable and so he concluded also that Judgement should be given for the Plaintiff which was done accordingly Pasche 1612. 10. Jacobi in the Common Bench. Browning against Strelley MIchael 2 Jac. Rot. 531. In debt the Margent of the Count contains Nottingham and the Count it self contains that the Obligation was made at the Town of Nottingham which is a County of it self and the Defendant pleads non est factum and the view was of the Town of Nottingham and it was tryed by the Jury of the County of Nottingham and this was moved in arrest of Judgment after verdict for the Plaintif by Nichols Serjeant And it was agreed by all the Justices that Judgment shall be given accordingly to the verdict insomuch that notwithstanding that the Town of Nottingham is a County of it self yet it may be that some part of the Town may be within the County and for that possibility they would not arrest the Judgment Ireland against Smith IN action upon the Case for these words the Plaintiff counts that he was and is Proctor in the Arches and in communication between one Morgat and the Defendant of him the Defendant said to the said Morgat You take part with Ireland against me who is an arrant Papist and hath a Pardon from the Pope and can help you to such an one if you will And after verdict it was moved by Hutton Serjeant in arrest of Judgment that the action doth not lye and he saith that it hath been adjudged in this Court 3 Jacobi Rot. 7031. between Kingstone and Hall that an action doth not lye for like words he is an arrant Papist And it were good that he and all such as he is were hanged for he and all such as he is would have the Crowne from the Kings head if they durst And it was adjudged that an action doth not lye for these words which are more strong then the words in this action but of the other part it was said by Haughton Serjeant that he did not insist upon these words that he is a Papist but that he had obtained a Pardon from the Pope the which by the Statute of 13 Eliz. is made High Treason and then notwithstanding that no time was limited when the Pardon should be procured that is before the Statute or after yet it shall be intended such a Pardon which is against the Statute for the presumption of the Law shall be taken in the worst sense and not like to the Case where a man saith to another that he hath the Pox And also it is alledged by the Count that the Plaintiffe is not above the age of 40. years so that he cannot obtain a Pardon before the Statute of 13 Eliz. And for that he supposed that the action is very well maintainable Coke cheif Justice said that it was adjudged in the Kings Bench in the time of Catlyn cheife Justice there that an action upon the Case doth not lye for calling a man Papist And Winch Justice said that if a man call a Bishop or another man which is trusted with government of the Church and Ecclesiastical causes that he thought the action lyes otherwise not Also he supposed that the Pardon might be for Purgatory or other matters which are not within the Statute of 13 Eliz. And also the Pardon may be procured by another and come to his hands by delivery over afterwards that it had passed two or three and the averment is not sufficient for it is onely Implication and Inference Coke and Warberton Justices sayd that a Papist is one that errs in his opinion and though that the Papists are Authors of many Treasons yet the Law doth not intend so and so of Heretick which is alwaies in a fundamentall point of Religion and yet an action doth not ly for calling a man Heretick also the Pope is a temporall Prince in Italy and for this cause also may pardon and this is out of the statute of 13 Eliz. and so they all agreed that the Action doth not ly for these words Pasche 1612. 10 Jacobi In the Common Bench. Marstones Case IN a common Recovery the Tenant appears by Attorney and vouches one which is present in Court which appears and vouches the common Vouchee and the Attorney hath a Warrant of the party acknowledged before a Judge but this was not entred of record and this was in Hillary tearme 16 Eliz. And it was moved by Dodridge the Kings Serjeant that the Warrant of Attorney might be now amended and entred upon the record and Coke supposed cleerly that it shall not be entred insomuch that it is a want of a Warrant of Attorney but if there had been a mis-construing of the Warrant of Attorney otherwise it is for this seems to be within the Statute of 27 Eliz. Chapter 5. Concerning amendments In Debt upon an obligation with condition to perform Covenants in an Indenture of Lease the Defendant pleads that after
name So by Custome as the Custome that if a Copy-holder will sell his Copy-hold Estate that he which is next of blood to him shall have the refusall and if none of his blood then he which Inhabits in the neerest part of the part of the ground shall have it before a stranger giving for that as much as a stranger would and the Lord shall have him for his Tenant whether he will or no for it shall be intended that so it was agreed at the first and it is reasonable and if it had not been ruled and adjudged before yet he conceived it might now be a rule and adjudged insomuch that it is so reasonable and good and for the second custome that is for the custome of cutting of Trees by such Copy-holder which hath such priviledge he conceived also that it was good But he agreed that a bare Tenant for life cannot be warranted by custome to do such an Act as it was here adjudged between Powell and Peacock But here he had a greater Estate then for life for he hath power to make another Estate for life and shall have as great priviledge as Tenant after possibility c. which is in respect of Inheritance which once was in him and he may do it for the possibility which he hath to give to another Estate as it is agreed in 2. Ed. 4. that a Lease fo a hundred yeares is Mortmain in respect of the continuance of it so here for the Estate may continue by such power of nomination for many lives in perpetuity and that as when at the Common Law they have in reputation and opinion of Law a greater Estate may cut and sell Trees so here insomuch that the Estate comes so neere to Inheritance he conceived that he might cut the Trees by the custome and that the Custome is good and so he concluded that Judgement should be given that the Plaintiff should be barred in respect of Customes and then to the third that is when a man lets Land and by the same Deed grants the Trees to be cut at the will and pleasure of the grantee there the Lessee hath distinct Interest But if the Lessor by one selfe same clause had demised the Land and the Trees there the Intendment is But notwithstanding that there are severall clauses and that he hath distinct Interests yet he conceiveth that the Trees remaine parcell of the Inheritance and free-hold till they are cut and are severed only in Interest that is that may be felled and devided by the Axe for Tythes shall not be paid for them if they exceed the growth of twenty yeares not it shall not be Felony for to cut those and burn them And it is not like to an Advowson for that may be severed and for that he conceived that if the Custome had not warranted the Cutting and Selling that the Copy-holder had forfeited his Estate and that the Lord might very well have taken advantage of it and 29. assis 29. A man sells Trees to be cut at Michaelmasse insuing and before Michaelmasse Haukes breed in them the seller shall have them by which it appeares that the property is not altered So that though they are not parcell of the Mannor yet they are parcell of the Free-hold insomuch that they are not severed in Facto And he agreed that Lessee for yeares of a Mannor shall take advantage of Forfeiture and need not any presentment by the Homage and Littleton fol. 15 saith that the Lord may enter as in a thing Forfeited unto him and so for attainder of Felony And if a Copy-holder makes a Lease for yeares by which he forfeits his Copy-hold Estate And after the Lord grants the Mannor for yeares the Lessee of the Mannor shal take advantage of this Forfeiture made before he had any Estate in the Mannor without any presentment by the Homage But here in this case the Custome warrants the cutting of the Trees by the Copy-holder and for that he concluded all the matter as above that the Plaintiff should take nothing by his Writ Coke cheife Justice agreed and he said that Fortescue and Littleton and all others agreed that the Common Law consists of three parts First Common Law Secondly Statute Law which corrects abridges and exp'aines the Common Law The third Custome which takes away the Common Law But the Common Law Corrects Allows and Disallows both Statute Law and Custome for if there be repugnancy in Statute or unreasonablenesse in Custome the Common Law Disallowes and rejects it as it appeares by Doctor Bonhams Case and 8 Coke 27. H. 6 Annuity And he conceived that there are five differences between Prescription and a Custome And all those as pertenent to this cause First in the beginning Pugnant ex Diametro for nothing may be good by prescription but that which may have beginning by grant and also prescription is incident to the Person and Custome to some place and holds place in many Cases which cannot be by grant as in 11 H. 4. Lands may be devised by Custome and so discent to all the Sons as in Gavelkind and to the youngest Son in Eurrough English and others like which cannot have their beginning by Grant but prescription and Custome are Brothers and ought to have the same age and reason ought to be the Father and Congruence the Mother and use the Nurse and time out of memory to Fortifie them both Secondly they vary in quality for prescription is for one man only and Custome is for many if all but one be not dead Thirdly they vary in extent and latitude for prescription extends to Fee-simple only but Custome extends to all Interests and Estates whatsoever as appeares by pleading for Tenant in tayl for life or yeares cannot prescribe in what Estate nor against the Lord in his Demesnes but they ought to alledge the Custome and against a stranger they ought to prescribe in the name of the Lord and for that prescription b. Copy-holder of Inheritance may sell the Trees is not good but such Custome is good and 5. Ed. 3. 24. And the old Reports 196. One Tenant being a Free-holder prescribes to have Windfalls and all Trees-which are withered in the Top and if the Lord makes them in Cole to have so much in money And so if they sell and this for Sale and this was not-good insomuch that it is alledged in the person as prescription but if it had been alledged as Custome and to be burnt in his house then it shall be good as appendant and 14. Ed. 3. Barr 227. Wilby saith to be adjudged that prescription to have Turbary to be burnt in his house is good but not to sell and 11. H. 6. 17. accordingly by which it appeares that this may be very well by Custome and cannot be by prescription Thirdly he conceived that where a man may create an Estate without nomination there he may create that by nomination And also that which may be done by the
awarded good because it comes in Lieu of Goods which they had as Executors and shall be Assets in their hands as the Goods should have been and for that it is well brought in the Detinet only And they said that in the principall case it shall be mischeivous if the Action shall be brought in the Debet and Detinet for it may be the Rent reserved is of more worth then the Profits of the Land will amount unto and that the Executors or Administrators have no other Assets now shall be the Executor or Administrator be charged with his own proper Goods which shall be mischeivous and the case of 10. H. 7. 5. and 6. that is direct in the point was often times cited and all these three things which were of councell with the Defendant informed the Court that they were of Councell with Hargrave when the Judgement given in the Kings Bench was reversed for Error in this very point and for this cause because the Action was brought in the Debet and Detinet where it should be in the Detinet only And so they praied that the Judgement should be hindered But by the whole Court except Yelverton And so it was adjudged that the Action was well brought as it is and especially for the reasons given in Hargraves Case 5. Coke 31. And to that which hath been said by Yelverton Justice that in all cases where Executors are charged by the name of Executors or Administrators that there the Action shall be against them in the Detinet only Flemming cheife Justice answered that â—rue it is in all personall things where they are named as Executors Action shall be in the Detinet But as it is an Action of Debt for Rent reserved upon a Chattell reall and an Executor is as an Assignee in Law and so charged as privy in Estate and not meerely as Executor and if he have no more Assets then the Rent which he is to pay he may plead nothing in his hands against all the World and to that that hath been said that the Executor hath been charged of his own Goods If the profits be not more then the Rent or the Rent more then the profits to this he said that in this case where the Executor hath the Tearme and hath not any other Assets that they may wave this Tearme And in Action of Debt brought against him for the Rent may plead to the occupation and that recover The reason of the diversity between this case and the case of 28. H. 8. Dyer 14. is plain for in an Action of Debt against the Termor himselfe Non habuit nec occupavit is no Plea for there was a contract between them and for this privity of contract is the Lessee charged though he did not occupy But in the case of an Executor the privity of the contract is gone and so may be a difference But yet it seemes if he have Assets sufficient to pay the Rent he cannot wave it And to the case 14. H. 4. 28. that hath been cited that doth speake nothing how the Action should be brought And the Justices have seen the record of Hargraves case and the Reversall of that And they said the same error which was in Hargraves case is in this case and for that bring your Writ of Error in the Exchequer chamber if you will for we so adjudge And then it was moved that the Lord Rich was Tenant in Tayle of part of the reversion and Tenant in Fee-simple of the other part and so it seemes that he ought to have two Actions because he hath as two reversions But it was resolved by all the Court that if a man have a reversion of part in Fee-simple and of the other part in tayl and makes a Lease for yeares rendring a Rent he shall have but one Action both being in the hands of one But otherwise it had been if the reversion had been in severall hands they should not Joyne in Debt and for that Fenner put this case two Coparceners are of a reversion and they make partition now the Rent is apportioned and they shall sever in Debt But if one dies without Issue and the part discends to the other Parcener now he shall have but one Action of Debt againe and so it is if a man makes a Lease of two Acres rendring Rent and after grants the reversion of one Acre to J. S. and of the other Acre to J. N. now they shall sever in Debt for this Rent but if J. S. and J. N. Grant their reversions againe to the first Lessor he shall have but one Action of Debt and so the exception dissalowed by all the Court and the Judgement given for the Plaintiff according to the Verdict Yates and Rolles THe case was this J. S. covenants by Indenture with J. N. I. D. and A. B. to enter Bond to pay ten pound to J. N. and J. N. dies and his Administrator brings a Writ of covenant and the question was insomuch that this ten pound was to be paid to J. N. if his Administrator shall have Action of Covenant or if the Action shall survive to the other two and it was moved by Stephens that the Action shall be well brought by the Administrator for this shall be taken as a severall covenant and this now is in nature of a Debt and enures only to him which shall have it also the payment of the money which is the effect of the covenant shall be to him only Ergo the Damages for the not performing of it shall goe to him also and by consequence to his Administrator But it was adjudged insomuch that this was a joynt covenant that this shall survive to the others and not well brought by the Administrator So also resolved that insomuch that the words are that he would enter Bond and doth not say to whom that this shall be intended to the Covenantees and though that the Solvendo is but to one of them yet that is very good as an Obligation made to three Solvendum to one of them is good by Fenner and by Williams Obligation to two Solvendum ten pound to one and ten pound to another both ought to joyne in Debt upon this Obligation and Judgement for the Defendant Sammer and Force THe Case was this The Lord of a Copy-hold Mannor where Copy holders are for life grants Rent-charge out of all the Mannor one Copy-hold Escheats the Lord grants that againe by Copy the question was If the Grantee shall hold it charged or not and by the whole Court but Fenner he shall not hold it charged because he comes in above the Grant that is By the custome the same Law of Statutes Recognizances or Dowers but the 10. of Eliz. Dyer 270. by the whole Court that he shall hold it charged but this hath been denyed for Law in a Case in the Common Bench between Swaine and Becket which see Trinity 5. Jacobi But to Coke Justice it seemed that
Grant his Intent was cleerly to pass all but Williams if he had sayd Totum Molendinum suum or all his Estate in the Mill there paradventure it should haue been otherwise and so a difference where he saith he grants the Mill and all his Estate in that and where he grants all his Estate in the Mill for in the first case all passes by the Grant of the Mill and these words which are after are but words explanatory as â—rooke sayd and it was adjourned And after in Easter Tearm next insuing Hitcham the Queens Attorney came again and prayed that the Judgment be affirmed and Yelverton of Grayes Inne sayd that he hath considered of Nokes Case 4. Coke and this was all one with this case for the case was thus A man lets a House in London by these words demise Grant c. That the Lessee should injoy the House during the Tearm without eviction by the Lessor or any claiming from or under him and the Lessor was bound to peform all Covenants Grants Articles and Agreements as our case is and there by the whole Court that the sayd express Covenant qualifies the generalty of the Covenants by the Words Demise and Grant which is all one with our case for first he granted Totum Molendinum and after covenant that he should injoy c. against himself and all which claime in by from or under him and after binds himself to perform all Grants Covenants Articles and Agreements and so it seems to him that it is au expresse Covenant in this Case as well as in other and qualifies the generall Covenant implyed by the word Grant and then the Grantee being outed by a title Paramount no Action of Debt upon such Obligation and prayed that the Judgment be reversed and the Justices sayd they would consider Nokes Case and the next day their opinions were prayed again and the cheife Justice sayd that he had seen Nokes case and said that there is but a small difference between the cases but he sayd that some diflemay be collected For first in our case is a Recitall of the Estate of the Grantor that is that all belongs to him as Survivor and for that this was a manner of Inducement of the Grantee to be more willing and forward to accept of the Grant and to give the more greater consideration for it but in Nokes case there is no recitall and so this may be the diversity Secondly In Nokes Case the Tearm past all in Interest at the first and the Grantee or Lessee had once the effect of this Lease in Interest of the Lessor but in this case when two Tenants in Common and one grants Totum molendinum there passes but a half at the first and so the grant is not supplyed for the other halfe and then if the speciall Covenant shall qualify the generall c. The Grantee shall not have any remedy for a half at all and this may be the other diversity but admitting that none of these will make any difference then he sayd that all the Court agreed that this point in Nokes Case was not adjudged but this was a matter spoken collaterally in the case and the case was adjudged against the Plaintiff for other reasons for that that he did not shew that he which evicted this Tearm had title Paramount for otherwise the Covenant in Law was not broken and for this reason Judgment was given against the Plaintiff and not upon the other matter and so the whole Court against Nokes Case And the cheif Justice sayd that to that which is sayd in Nokes case that otherwise the speciall Covenant shall be of no effect if it cannot qualify the generalty of the Covenant in Law he sayd that this serves well to this purpose that is that if the Lessor dyes and any under the Testator claim the Estate that the Action of Covenant in this case lies against his Executors which remedy otherwise he cannot have for if a man makes a Lease by these words Devise and Grant and dyes Action of Covenant doth notly against his Executors as it is sayd in the 9. Eliz. Dyer 257. But otherwise upon expresse Covenant and then this expresse speciall Covenant shall be to this purpose And also it seems to him that if a man devise and grant his Land for years and there are other Covenants in the Deed that in this case if the Lessor binds himself to perform all Covenants that he is not bound by his Bond to perform Covenants in Law and he cited that to this purpose the Books of 22 H. 6. and 6 Ed. 6. B. Tender that if a man makes a Lease for yeares rendring Rent this is Covenant in Law as it is sayd 15 H. 8. Dyer and a man shall have Debt or Covenant for that and yet if a man binds himself in a Bond to perform all Covenants where there are other Covenants in the Deed and after doth not pay the Rent no action of Debt lyeth upon this Obligation nor the nature of the Debt altered by that and he sayd that the Munday next they would pronounce Judgment in the Writ of Errour accordingly if nothing shall be sayd to the contrary and nothing was sayd Hillary 7. Jacobi 1609. In the Kings Bench. Bartons Case THE Case was this A man was taxed by the Parish for Reparations of the Church and the Wardens of the Church sued for this Taxation in the spirituall Court and hanging this Suit one of the Wardens released to the Defendant all Actions Suits and Demands and the other sued forward and upon this the Defendant there procured a Prohibition upon which matter shewed in the Prohibition was a Demurre joyned and Davenport of Grayes Inne moved the Court for a Consultation and upon all the matter as he sayd the point was but this If two Wardens of a Church are and they sue in the Court Christian for Taxation and one Release if that shal barr his Companion or not And it seems to him that this Release shall not be any Barr to his Companion or Impediment to sue for he sayd that the Wardens of a Church are not parties interested in Goods of the Church but are a speciall Corporation to the Benefit of the Church and for that he cited the Case in 8 Ed. 4. 6. The Wardens of the Church brought Trespass for goods of the Church taken out of their possession and they counted Ad damnum Parochianorum and not to their proper damage and the 11 H. 4. 12. 12 H. 7. 27. 43 H. 7. 9. Where it is sayd expresly that the Wardens of the Church are a corporation only for the Benefit of the Church and not for the disadvantage of that but this Release sounds to disadvantage of the Church and for that seems to him no Barr also this Corporation consists of two persons and the Release of one is nothing worth for he was but one Corps and the moyity of the Corps could not release
Michaell then it is cleer that the Lessor hath no remedy by way of distress for the Tearm is ended before and by Action of Debt upon the Contract he hath no remedy as it seems as this case is for the Contract is that the Rent shall be paid yearly during the Tearm then when the Tearm is ended the contract is determined and for that the cheife Justice sayd That if a man makes a Lease at Michaelmas for a yeare rendring Rent yearely at our Lady day and the ninth of October which is after Michaelmas that the Lessor hath not any remedy for the Rent of the last halfe yeare for that is not reserved to be payd yearly according to the contract And Yelverton Justice agreed that the Lessee hath election as above but he saith when that is behinde the tenth day after Michaelmas then the Lessor shall bring his Action of Debt and declare that the Rent was behinde at the Feast of Saint Michaell and shall not make mention of the ten dayes after and Coke Justice sayd That it seems to him that the Lessee shall not have the benefit of these ten dayes after the last Feast for the words of the Lease are rendring Rent yearly during the tearme at the Feasts aforesayd or ten dayes after so that the Lessee shall have the benefit of these ten dayes during the tearme but not after then he shall not have these after the last Feast of Saint Michaell for then shall the tearme be ended And after in Trinity Terme 8 Jacobi The Case was moved againe and then Flemming cheife Justice conceived That the Lessee shall not have ten dayes after the last Feast and this upon construction to be made reasonably for otherwise the Tearm being ended the Contract should be determined with the Tearm and so the Lessor should be without remedy for his Rent and he sayd that reservations are not taken so strictly according to the letter And for that he cited the case of Hill and Granger in the Com. fol. 171. Where a man makes a Lease for a year And the Lease was made in August rendring Rent yearely at the Annunciation of our â—ady and Michaelmasse upon condition of Re-entry In this case the first payment shall be at the next Michaelmasse after the making of the Lease and not at the Annunciation of our Lady though this is first in words and this by reasonable construction for otherwise this word Yearely shall not be supplied and of this see the Action and so he said in this case Rent is reserved yearely during the Tearme at the Feasts of the Annunciation of our Lady or Michaelmasse or ten daies after he shall not have ten daies after the last Feast But Williams held his old opinion that the Lessor hath no remedy for the last halfe years Rent and it was adjourned Hillary 7. Jacobi in the Kings Bench. Grymes against Peacocke IN Terspasse for his Close broken The Defendant justifies that it was used within the Mannor of D. that every Farmer of such a house and averred that that had been allwaies let to Farme had Common in the Lords wast The house came into the hands of the Lord in Possession And he granted the house and the wast to J. S. in Fee J. S. Bargaines and Sells the house to J. N. with all Commons Profits and Commodities used occupied and pertaining to the same And after grants the wast to another If the Grantee of the house shall have Common in the wast was the question And Yelverton argued that the Common was gone for if he shall have Common this shall enure as a new Grant of a Common but this cannot so enure for two reasons First when a man will grant a Common he ought to shew the place in certaine where the Grantee shall have this Common or otherwise the Grant is void But here no place is shewed and for that it cannot enure as a new Grant of a Common Secondly If that be a new Grant yet this hath reference to the usage that is Quod Vsitatum est c. And this Vsitatum is void for it seemes to him that Lessee for yeares cannot alledge a usage for every Vsitatum ought to go in one selfe same currant not interrupted as in ths case of a Coppy-hold But here every new Lease is a new contract and so the usage is interrupted and then the Grant having the reference to the usage and that is void usage nothing shall passe by this Grant and for that in Long 5. Ed 4. 40. If a custome be against Law And that is confirmed by the Act of Parliament this is void confirmation for it hath reference to a void custome so here this Grant hath reference to the usage and for that it seemes to him that the Common is gone Hutton Serjeant to the contrary and that the Grantee of the Messuage shall have common for this usage is not a thing by strictnesse in Law appertaining to the Land but this hath gained his reputation that that shall passe very well in a conveiance by apt words And for that it will not be denied but if a man makes a Lease for years to one and grants him Common for all his Kine c. And after this Lease expires and he makes a new Lease and grants such Commons as the first Lessee had that this shall be a good grant of Common to the Lessee So he said in this case this grant of the house with all profits and commodities used occupied and appertaining to the said Messuage shall be said a grant of such Common which other Lessees of this Manner have used and this by reasonable construction in Law to make good the conveiances of Lay-men according to the common speaking for Benigne sunt Faciende Interpritationes Chartarum c. and for that he cited the case of Hill and Grange in the Comment Where the case was That a man made a Lease for yeares of a house and a hundred Acres of Land appertaining to that though the Land be not appurtenant to the house yet insomuch that this hath been usually occupied with the house this shall passe as appertaining to it and so 26. Assis 38. A man makes a Lease for life rendring Rent and after grants over the Rent to J. S. and dies The Heire grants and confirmes to the Grantee and his Heires the same Rent with clause of distresse and the Tenant for life dies now is the Rent reserved upon the Estate for life determined and yet this shall enure as a new grant of another Rent in quantity So in Sir Moyle Finches Case the case of uses and Durham in Ejectione Firme A Lease was pleaded of a Mannor whereof the feilds in which c. Were parcell And Issue was joyned Quod non Demiset Manerium And upon this Issue found it was that there were not any Free-holders but diverse Copy-holders and this was allwaies knowne by the name of a Mannor and it was adjudged that
the Subjects Et Rex censetur habere omnes Artis in sermo pectoris and he hath here pursued the Course of the best Phisitians that is Removens promovens removens Improbos illos qui nullis bonae conscientiae fiducia profitabantur audaces promovens ad sanitatem And for that the Phisitian ought to be profound grave discreete grounded in learning and soundly Studied and from him commeth the medicine which is removens promovens And it is an old rule that a man ought to take care that he do not commit his Soul to a young Divine his Body to a young Phisitian and his Goods or other Estate to a young Lawyer for in Juveni Theologo est Conscientiae detrimentum in Juveni Legislatori bursi detrimentum et in Juveni Medico Cimitorij incrementum for in these cannot be the privity discretion and profound learning which is in the aged And he denied that the Colledge of Phisitians is to be compared to the University for it is subordinate to that Cantabrigia est Academiae nostrae nobilissima totius Regni occulus et sol ubi humanitas et doctrina simul fluant But he said when he names Cambridge he doth not exclude Oxford but placeth them in equall Rank But he would allwaies name Cambridge first for that was his Mother And he saith that there is not any time Pro non bene faciendo utendo et exequendo for this non suscipit Manus et Minus for so a man may greviously offend in one day and for that in such a case his punishment shall be by Fines amercements Imprisonments of their Bodies and other waies c. But if practise well though it be not an offence against the Letters Patents and the Statutes yet the punishment shal be but pecuniary and shall not be Imprisoned for if he offend the Body of a man it is reason that his Body shall be punished for Eodem modo quo quis delinquit eodem punietur but if a grave and learned Doctor or other come and practise well in London by the space of three weekes and then departs he is not punishable by the said Colledge though that they be without admition for peradventure such a one is better acquainted with the nature and disposition of my Body and for that more fit to cure any Malady in that then another which is admitted by the Colledge and he said that it was absurd to punish such a one for he may practise in such manner in dispite of the Colledge for all the Lords and Nobles of the Realme which have their private Phisitians which have acquaintance with their Bodies repaire to this City and to exclude those of using their advise were a hard and absurd exposition for the old verse is Corporis auxilium medico committe sodali And also he said that the said President and Colledge cannot commit any Phisitian which exerciseth the said faculty without admission for the space of a Month nor bring their Action before themselves nor levy that by any other way or meanes But ought to have their Action or exhibit an Information upon the Statute as it appears by the Book of Entries for they â—ught to pursue their power which is given to them by the Statute for otherwise the penalty being given the one Moytie to them and the other to the King they shall be Judges in Propriacausa and shall be Summoners Sheriffs Judges and parties also which is absurd for if the King grant to one by his Letters Patents under the great Seale that he may hold Plea although he be party and if the King doth not appoint another Judge then the Grantee which is party the Grant is void though that it be confirmed by Parliament as it appeares by 8. H. 6. 44. Ed. 3. The Abbot of Readings Case for it is said by Herle in 8. Ed. 3. 30. Tregores Case that if any Statutes are made against Law and Right and so are these which makes any man Judge in his own cause and so in 27. H. 6. Fitz. Annuity 41. that the Statute of Carlile will that the order of Cistertians and Augustines which have Covent and Common Seale that the Common Seale shall be in keeping of the Prior which is under the Abbot and foure others which are the most Sages of the house and that any Deed sealed with the Common Seale which is not so in keeping shal be void and the opinion of the Court that this is a void Statute for it is impertinent to be observed being the Seale in their keeping the Abbot cannot seale any thing with it and when that it is in the hands of the Abbot it is out of their keeping ipso facto And if the Statute shall be observed every common Seale shall be defeated by one simple surmise which cannot be tryed and for that the Statute was adjudged void and repâ—gnant And so the Statute of Glocester which gives Cessavit after Cesser by two yeares to be brought by the Lessor himselfe was a good and equitable Statute But the Statute of Westminster 2. chap. 3. which gives Cessavit to the Heire for Cesser in time of his Ancester and that that was Judged an unreasonable Statute in 33. Ed. 3. for that that the Heire cannot have the arrerages due in the time of his Father according to the Statute of Clocester and for that it shall be void And also the Physitians of the Colledge could not punish any by Fyne and also by Imprisonment for no man ought to be twice punished for one offence and the Statute of 1. Mariae doth not give any power to them to commit for any offence which was no offence within the first Statutes and for that he ought not to be committed by the said Statute of 1. Mariae But admitting that they may commit yet they have mistaken it for they demand the whole hundred shillings and one halfe of that belongs to the King And also they ought to committ him forthwith as well as Auditors which have Authority by Parliament to commit him which is found in arrerages But if he do not commit him forthwith they cannot commit him afterward as it appeares by 27. H. 6. 9. So two Justices of the peace may view a force and make a Record of that and commit the offenders to Prison but this ought to be in Flagranti Oriente And if he do not commit those immediately upon the view he cannot commit them afterwards and the Physitians have no Court but if they have yet they ought to make a Record of their commitment for so was every Court of Justice But they have not made any Record of that And Auditors and Justices of Peace ought to make Records as it appeares by the Book of Entries So that admitting that they may commit yet they ought to do it forthwith but in this case they cannot commit till the party shall be delivered by them for this is against Law and Justice and no
175 b. Dyer and there in Margery Hynds case who 18 Eliz. Noluit jurdre coram Justiciarijs Ecclesiasticis super articulos pro usura and Leyes case 9. and 10. Eliz. Michaelmas Rot. 1596. and it is written in the Book of the Lord Dyer but not printed the case was Ley being an Attorney of the Common Bench was committed to the Fleet by the Bishop of London and two others of the high Commissioners Ecclesiasticall for that that he was present at a Masse and he refused to be examined upon his oath upon Articles administred by the high Commissioners see also 5 Edw. 4. Keysers case upon the statute of 2. H. 4. chapt Which gives authority to the Arch-Bishop to imprison c. And see the Register fol. 36. b. The form of an Attachment against the Bishop which cited Aliquos Laicos ad aliquas cognitiones faciendas vel sacramentum prestandos nisi in casibus matrionalibus Testimeutarijs c. But it was urged that the Judges of the Common Law shall not have the exposition of the statute of 1. Eliz. because it was an Ecclesiasticall Law but it was resolved by all the Justices that it belongeth to the Judges of the Common Law to expound this for the Statute was temporall meerly and with this 4. Ed. 4. 37. b. c. upon the Statute of 5 H. 5. chapt Which provides Quod libellus sit deliberatus parti in casu ubi per legem deliberandus est hoc sine difficultate And though that this Act be meer spirituall yet the Exposition of that lyes open to the common Law Michaelmas 7. Jacobi 1609. In the Common Tench Estcourt and Harrington IN Trespass upon the Case between George Estcourt Plaintiff and Sir James Harrington Knight Defendant for that that the Defendant sayd that the Plaintiff was a forsworn and perjured man which the Defendant justified for that that the Plaintiff exhibited and English Bill in the Marches of Wales before the President and Councell there and in the same suit made an Affidavit upon which an Injunction was granted for the possession of Land in question between them for the sayd Plaintiff and that the sayd Affidavit was false and the Plaintiff hath committed perjury in that and this was allowed good Justification the Jury was of the Counties of Glocester and Salop and the words of the Distringas were ordinary till towards the end and that was Ad faciendam quendam Juratum simul cum alijs Juratoribus comitatus nostri Salop and this was the Distringas directed to the Sheriff of Glocester and so Mutatis mutandis in the Distringas directed to the Sheriff of Salop and note that the Jurors were sworn one of one County and another of another County Alternis vicibus and 24. were returned of every County Michaelmas 7. Jacobi 1609. In the Common Bench. Simpson and Waters SYmpson against Waters in an Action of Trespasse upon the case for Slander that is thou art drunk and I never held up my hand at the Barr as thou hast done and agreed that an Action doth not lye for these Words for peradventure he intended buttery Barr And by Foster Justice if he had sayd for Felony that the Action doth not lye for many honest men are arrained but if he saith he was detected Action doth not lye but if he saith he was convicted for Perjury Action lyeth as seemed to him In Trespass the Originall bore Teste 3. Ianuary 6. Iacobi and in the Count the Trespass is supposed 20 Ianuary 6. Iacobi which is after the Teste of the Originall and agreed that this shall not be aided by the Statute oâ— Jeofailes but if it were originall otherwise it is Michaelmas 7. Jacobi 1609. In the Common Bench Hare and Savill IN Covenant by John Hare and Hugh Hare against John Savill the Plaintiffs made a Lease for years to the Defendant rendring Rent at two Feasts or within ten dayes after every of those at the Temple Church and the Defendant covenanted to pay the Rent according to the reservation and for the non payment these Plaintiffs brought an Action of Covenant to which the Defendant pleads levied by distress and upon this the Plaintiffs demurred and adjudged with the Plaintiffs accordingly for that the Defendant for his Plea hath confessed that it was not payd according to the reservation for the Plaintiffs cannot distrain if it were not behind after the day and it was agreed that where a Rent is reserved to be payd at such a Feast or within twenty dayes that the Lessee in this case shall have Election if he will pay that at the Feast or at the end of twenty dayes for he is the first Actor and the Lessor cannot distrain nor have action of Debt till the twenty dayes be past and it was agreed that the Covenant shall not alter the nature of the Rent but that nothing behind or payment at the day were good Pleas. Defendant in Debt pleads to the Law and was ready at the Barr to wage his Law and it was resolved by the Judges upon conference with the Prothonotories that it might be continued but the Court would advise IN Action upon the Case upon Assumpsit the Plaintiff counts that diverse Goods were delivered to him in pawn and that in consideration that he should deliver them to the Defendant the Defendant assumed and promised to pay to him the Debt for which the Goods were pawned and it was objected that the Count was not good for that it doth not contain the certainty of the Goods which were pawned and delivered to the Defendant but to that this difference was agreed that when Goods are to be recovered and Dammages for them and are in demand the certainty of the goods ought to appeare in particuler as if a man pleades that he was never Executor nor administred as Executor it is a good Plea for the Plaintiff that he administred Diversa bona in such a place so if he plead that he hath Diversa bona natabilia in other Diocesse it is good iâ— both cases without shewing what goods in certaine see 11. H. 7. 29. Ed 3. Also it was objected that the consideration was not sufficient and then it shall be Nudum pactum ex quo non oritur actio for the Plaintiff hath not any Interest in the Goods and they were delivered him to keep and not to deliver over so that the delivery was vitious and for that it shall be no good consideration and of this opinion was Foster Justice But Coke Wraburton Danyell and Walmesley being absent it seemes that the condition was good as if a man in consideration that another will go to Westminster or cure such a poor man or mary a poore Virgin assume to pay to him a sum of money And though this consideration were not valuable yet it seemes good And he that pawned hath a property in the goods and may have them againe In debt
charge to the King and to the Common Wealth and the execution of Writs may be prejudicall and penall to the Sheriff himselfe And for that he may well provide that he shall have notice of every execution which are most Penall And also in all the Indenture now made he doth not constitute him to be his under Sheriff but only for to execute the Office and for these reasons he seemed the Obligation is good and demands Judgement for the Plaintiff But it seemes to all the Court that the Covenant is void and so by consequence the Obligation as to the performance of that void but good to the performance of all other Covenants And Coke cheif Justice said that the Sheriff at the Common Law was elligible as the Coronor is and then by the death of the King his Office was not determined and also it is an intire Office and though the King may countermand his Grant of that intirely yet he cannot that countermand by parcells and also that the under Sheriff hath Office which is intire and cannot be granted by parcells and this Covenant will be a meanes to nourish bribery and extortion for the Sheriff himselfe shall have all the benefit and the under Sheriff all the payn for he is visible the under Sheriff and all the Subjects of the King will repaire to him and the private contracts between the Sheriff and him are invisible of which none can have knowledge but themselves And Warburton sayd that in debt upon escape c. are against the Sheriff of Notingham he pleaded Nihil debet and gives in evidence that the Bayliff which made the Arrest was made upon condition that he should not meddle with such executions without speciall warrant of the Sheriff himselfe and his consent but it was resolved this notwithstanding that the Sheriff shall be charged in and in the principall case Judgement was given accordingly that is that the Covenant is void Note that the Sheriff of the County of Barkes was commited to the Fleete for taking twenty shillings for making of a warrant upon a generall Capias utlagatum for all the Justices were of opinion that the Sheriff shall not take any Fees for making of a warrant or execution of that Writ but only twenty shillings and foure pence the which is given by the Statute of 23. H. 6. for it is at the Suit of the King But upon Capias utlagatum unde convictus est which is after Judgement it seemes it is otherwise A man grants a Rent to one for his life and halfe a yeare after to be paid at the Feasts of the Anunciation of our Lady and Michaell the Archangell by equall portions and Covenants with the Grantee for the payment of that accordingly the Grantee dies 2. Februarâ—… and for twenty pound which was a moyity of the Rent and to be payd at the anunciation after the Executors of the Grantee brings an Action of Covenant and it seems it is well maintainable And Coke cheife Justice sayd That if a man grants Rent for anothers life the Remainder to the Executors of the Grantee and Covenant to pay the Rent during the Tearm aforesayd this is good Collective and shall serve for both the Estates and if the Grantee of the Rent grant to the Tenant of the Land the Rent and that he should distrain for the sayd Rent this shall not be intended the same rent which is extinct but so much in quantity and agreed that when a Rent is granted and by the same Deed the Grantor covenants to pay that the Grantee may have annuity or Writ of Covenant at his Election Michaelmas 7. Jacobi 1610. In the Common Bench. Waggoner against Fish Chamberlain of London JAMES Waggoner was arrested in London upon a Plaint entered in the Court of the Maior in Debt at the suit of Cornelius Fish Chamberlain of the sayd City and the Defendant brought a Writ of Priviledge returnable here in the Common Pleas and upon the return it appears that in the City of London there is a custome that no forrainer shal keep any shop nor use any Trade in London and also there is another Custome that the Maior Aldermen and Commonalty if any custome be defective may supply remidy for that and if any new thing happen that they may provide apt remedy for that so if it be congruae bonâ— fidei consuetudo rationi consentiae pro communi utilitate Regis civium omnium aliorum ibidem confluentium and by Act of Parliament made 7 R. 2. All their customes were confirmed and 8 Ed. 3. The King by his Letters Patents granted that they might make By-Laws and that these Letters Patents were also confirmed by Act of Parliament and for the usage certified that in 3 Ed. 4. and 17. H. 8. were severall acts of Common Councell made for inhibiting Forrayners to hold any open shop or shops or Lettice and penalty imposed for that and that after and shewed the day in certain was an Act of Common counsell made by the Mayor Aldermen and Commonalty And for that it was enacted that no Forrayner should use any Trade Mistery or occupation within the said City nor keep any Shop there for retayling upon payn of five pound and gives power to the Chamberlain of London for the time being to sue for that by Action c. in the Court of the Mayor in which no Essoyn nor wager of Law shall be allowed and the said penalty shall be the one halfe to the use of the said Chamberlain and the other half to the poor of Saint Bartholomewes Hospitall And that the Defendant held a shop and used the Mistery of making of candles the seventh day of October last and for that the Plaintiff the ninth day of the same month then next insuing levied the said plaint And upon this the Defendant was Arrested and this was the cause of the taking and detaining c. And upon argument at the Bar by Serjeant Harris the younger for the Defendant and Hutton for the Plaintiff and upon sollemne arguments by all the Justices Coke Walmesley Warburton Danyell and Foster it was agreed That the Defendant shall be delivered and not remanded And the case was devided in to five parts The first the custome Secondly the confirmation of that by Act of Parliament Thirdly the grant of the King and the confirmation of that by Act of Parliament Fourthly the usage and making of Acts of common councell according to this Fiftly the Act of common councell upon which the Action is brought and upon which the Defendant was Arrested And to the first which is the custome it was also said that this consists upon three parts That is first if any custome be difficult Secondly if it be defective Thirdly if Aliquid de novo emergit The Mayor Aldermen and Commonalty Possunt opponere remedium and that there are foure incidents to that remedy First it ought to be Congruum Retione
the Arbitrator awards that one party shall enter into Bond to another for injoying of certain Lands and doth not say in what Sum and adjudged void for the uncertainty and so in this case by which c. But it was answered and resolved that the Arbitrement was good And to the first objection it was resolved and agreed that every award ought to have respect to both parties if it be not a matter which concernes one party only and neither recompence nor acquittall due to the other party in which case the award shall be good And it was resolved in the principall case that the award was made of both parties for one was to have money and the other though there was no expresse mention that the other should be discharged of his Assumpsit yet the award was a good discharge in Law and may be pleaded in Bar upon an Action brought upon the Assumpsit and so it was for both parties And to the second objection it was agreed that where submission is with Ita quod c. as above that there the Arbitrators ought to make arbitrement of all the variances and controversies referred to their arbitrement and if they do make no arbitrement of all the matters of which the submission is made the award is void but if the submission be generall as of all matters in variance or controversie between them There if the Arbitrator makes his award of all matters which are known to him the award shall be good As my Lord Coke conceived though that there are other matters in variance of which the Arbitrator hath no notice as if divers Creditors sue a-commission upon the statute of Barkrupts and an another person to whome the Bankrupt was indebted doth not come in as a Creditor nor give notice to the Commissioners that the Bankrupt was indebted to him he shall not take benefit of the commission for the Commissioners cannot releive those Creditors of which they have no notice as it appeares by the case of Bankrupts in 2. Coke And to the third objection it was answered and resolved that the award was good notwithstanding that no place be expressed where the money shall be paid for in Law that ought to have resonable construction and the party ought to have reasonable time for the payment of that but Foster conceived that it is not good for it seemed to him that if the award shall be good that the Obligation of submission shall be immediatly forfeyted for that there was neither time nor place where the money should be payd but this was answered with the Bookes of 3. H. 7. 16. Ed. 4. Where it is said that if an Arbitrator award that one party shall pay such a sum of money at such a day and keeps the award in his Pocket till such a day be past that yet the Obligation shall not be forfeyted And so it was resolved and adjudged by all the other Justices that the award was good and Judgement was entred accordingly Hillary 7. Jacobi 1609. In the Common Bench. Foster against Jackson RICHARD Foster Plaintiff in Scire Facias against Anno Jackson and Myles Jackson Executors of Thomas Jackson upon Judgement had against the said Thomas in an Action of Debt The Defendants pleades that the said Thomas Jackson the Testator was taken upon a Capias ad Satisfaciendum awarded upon the sayd Judgement and in execution for the sayd Debt by force of the said Capias and there died in execution and so demands Judgement c. And the sole question was if the said Testator being in execution for the said Debt by force of the said Capias and there dies if this be satisfaction of the Debt or not And Dodridge the Kings Serjeant which argued for the Plaintiff in the sayd Scire Facias conceived that it is no satisfaction but that notwithstanding the Debt remaines for the words of the Writ are Capias ad satisfaciendum and all others Executions as Fire Facias and Eligit are satisfactory But the Capias is but a restraint of his liberty till he hath satisfied the Debt and for that it is no plenary satisfaction but only restraint of his liberty which the Law more respects then Goods or Lands and for that Custodia ought to be Salva stricta So by this the party may be Inforced to pay his Debt Salva to the party so that by this the party may be safely detained till he hath satisfied the Debt and Stricta to the King so that by this Justice may be satisfied and for that Bracton saith that it is only to compell the party to make satisfaction And it is resolved in the 33. H. 6. 47. That it is no satisfaction but that the Body should remain as a Pledge till satisfaction a were made or as return Irreplevisable and yet neither the one nor the other are satisfaction And the words of the Writ are Capias ad satisfaciendum the party but if he will satisfie then there is no reason that the Defendant shall be Imprisoned by the Writ But if he will not pay then he shall continue in Prison Quousque satisfecerit by which it appeares that the Imprisonment is no satisfaction and it appeares also by the Register and Fitz. Na. Bre. 246. b That if a man recover Damages of Trespasse before the Justices of Oyer and Terminer and hath the party in execution by force of this Judgement now if the parry which is in execution dies in Prison he which recovered may sue Certiorari to the Justices to remove this Record into the Kings Bench that the Justices there may make upon that Record as the Law will in such case And it seemes by this that the party shall have execution by Elegit or by Fieri Facias for it is not reasonable as it is there sayd that the death of him which died in Prison shall be satisfaction to the party which recovered but Fitzh here saith Tamen quere for he doubted of that but in the Register there is a speciall Writ of Certiorari to this purpose that is to remove the Record into the Kings Bench so that the Justices may do there upon that as the Law will and if the Law will not allow the party to have new execution it were in vain to have such Certiorari for other course cannot be taken and the end of every suit is to have payment and so is the Judgement that the Plaintiff should recover his Debt and so is the Writ and the count and the Capias also and to the end of Justices in Suum cuique tribuere And the party hath not any of these ends if the death of the Defendant in prison shall be satisfaction and in the 47. Ed. 3. Fitz. execution 41. Persey said that if in Trespasse the Plaintiff recover and the Defendant is taken for the Kings Fyne if he pray that the Defendant continue in Prison till he have made agreement with him perchance he shall not
Booke of 33 H. 6. 47. is but the opinion of Prisot and Lacon And the principall case there depends upon another point Fitz. 246. before cyted is but a quere and Eitz himself doubted of it and the book of 44 Edw. 3. Fitz. Execution 41. is but the opinion of Percye But the Judgment upon the principall point is otherwise And the principall case in Blunfields case 5 Coke was upon another point also as it appears by the Booke and so he concluded with the Judgment before cyted to be in the Kings Bench Pasche 43 Eliz. between Williams and Cuttris which was direct in the point according to his opinion and prayed Judgement for the Defendants in the Scire Facias and it is adjourned This Case was argued in Trinity Tearm next ensuing by all the Judges of the Common Pleas and first Foster the youngest Judg argned that the death of the Defendant in Prison being in Execution was no satisfaction but the Plaintiffe may have a new execution against his Executors for he said it was an old saying That debts went before deadly sinne And that every one ought to satisfie his debts by the Law of God before Legacies given to charitable uses And so by the Law of the Realm if it be not the default of the Plaintiffe as it was not in our Cause for the death of the Defendant in Prison was the act of God and the Executors have confessed by pleading that they have assets and the Plaintiff hath nothing but griefe and pain and he said as before that at the Common Law no Capias lay till the Statutes of Marlebridge Chap. 23. and Westminster the 2. Chap. 11. Capias was given in Accompt and then the statute of 25 Edw. 3. Chap. 17. gives such like Processe in debt which was in Accompt and then in Accompt Capias ad Computandum lyes and in debt Capias ad Satisfaciendum And if in Accompt the Defendant was adjudged to accompt and Capias ad Computandum be awarded and he taken by force of that and committed to Prison and here dyes a new Writ shall be awarded So in debt if the Defendant be taken by Capias ad satisfaciendum new Writ shall be awarded against his Executors see 1 Edw. 3. 24. 1 H. 7. 5 Coke 92. Blundfields case for it is only the default of the Defendant that the debt is not satisfied and for that it is no reason that the Plaintiff should be prejudiced by that and 11 H. 4. 44. and 45. by Skreene Debt upon an Escape doth not lye against the Executor of the Sheriff but new Processe shall be awarded against the Prisoner which is escaped for a man shall not take advantage of his own wrong as in the case of Littleton If the sonn makes disseisin and enfeoffs the Father which dyes the sonne shall not take advantage of this Discent because he was particeps criminis and he said it was no wrong to any if execution were made of the goods of the Testator and it is mischievous to the Plaintiffe for he shall loose his debt And to the Objections which have been made that there is an end of Processe when the Defendant is taken by Capias and dyes in Execution the which he agreed as long as the Defendant lived but after his death he may make new election 47 Ed. 3. Fitz. Execution 41. by Percye And it appears by the pleading in 17 Ed. 3. That Judgment Execution without satisfaction is no Plea in Bar. And also he cyted the Register 285. and Fitz. Na. Bre. 246. 19. Ed. 3. 21 H. 6. 5. where the Plaintiff had effectual execution which was satisfaction 44 Ed. 3. 21 Edw. 4. 1 Edw. 4. 8 H. 7. 16 H. 7. to the same purpose for which Dodridge cyted them before And also he said that the Judges have always had respect to the satisfaction of Debts and for that would not bayle one in Execution upon a Writ of Errour where Errour indeed was assigned but suffers him to remain in Prison till the Judgment were reversed But here the Plaintiff hath neither Bale nor any satisfaction but griefe and pain And in the 21 of H. 7. the Sheriff returned that the Defendant had no land but lands in use and was adjudged that he should execute the Elegit upon these Lands such was the respect that the Judges have to Executions and to the Case of 35 H. 6. 47. This is but the opinion of Lacon which erred in the principall case and may as wel erre in this point and his opinion also is so intricately penned that he cannot understand it And Martins opinion also in 7 H. 6. 7. is against the Judgment of the principall case And to the Objection that the Party had determined his Election by the Execution of the Capias he agreed to that with this difference that is if the Plaintiff sue Scire facias the Sheriff levyed part that this notwithstanding the Plaintiff may have Capias for the residue and so Elegit after Fieri facias or Capias for there is not any Entry made of awarding of fieri facias or Elegit But the Plaintiff only sued that out of the Court see 44 Edw. 3. 18 Ed. 4. 31 Ed. 3. 17 Ed. 3. 20 Ed. 2. 22 Assis 17. H. 7. 1. And so he coucluded that the Judgment shall be given for the Plaintiff in the scire facias Warburton Justice conceived the contrary that is that the Plaintiff in the Scire facias shall be barred And he agreed and said that none will deny but that Debts shall be paid but that ought to be according to the rules of the Law For by the Common Law the body of the Defendant was not lyable to execution and then it is to examine in what cases he is at this day subject to execution and though in Trespasse Capias lyes at the Common Law but in Debt no Capias lyes till the Statute of 25 Edw. 3. which gives the same processe which was in Accompt and this is as well in the Originall processe as in the Judiciall and Elegit was first given by the statute of Westminst 2. And this was of the half of the Land But Levari facias was at the Common Law of the profits of the Land That in debt Acceptance and Election binds the party and so this remains for the said Statutes being in the affirmative doth not take away that nor abate it and by that if Conusee of a statute accepts Land extended at too high a value he is bound by that 22 Edw. 3. 32. H. 6. 15 H. 7. And that when the Party hath Judgment he hath election to have execution by Fieri facias Elegit or Capias for he hath determined his Election So if he makes his Election of a Capias at first he cannot have Elegit after 30 Edw. 3. adjudged 32 Edw. 3. Processe 52. according Long 5 of Edw. 4. by Markeham and others and the reason which is given in
against peter THis Case was argued this Tearme by Harris youngest Serjeant for the Defendants and by Haughton for the Plaintiffs And Serjeant Harris conceived that Sir Francis Barrington was within the Intent of the Act of 22. Ed. 4. chap. 17. For he hath grant of Trees of Inheritance and this was all the profit which rise upon the Soyl and for that it shall be intended of the Soyl it selfe And to prove that he cyted Parromor and Yardlyes Case in the Com. 542. and 543. 2. H. 8. 159. Crooke 11. Eliz. Dyer 285. Where it is agreed by three Justices that the Patentee or Grantee of Herbage in a Forrest shall have Trespasse against any which consumes and distroies the Grasse but not the Trees nor of the fruit of that and the Trespasse of that shall be Quare clausum fregit as well as iâ— it were of Land And may inclose the Forrest by such Grant See 17. Ed. 4. 6. a. by Littleton that Vestura terrae doth not pass without Livery Also admitting that he is not owner of the Ground within the Statute yet it seemes by the Statutes that they are It shall be lawfull for the same Subjects Owners c. And to such other persons to whom such VVood shall happen to be sold Immediatly after the VVood so cut to fence and inclose the same Ground with sufficient Hedges able to keep out c. Upon which words he inferrd that S. Francis Barrington is such a Person to whom the VVood is sold and for that may inclose And also he conceived that the Statute is generall and concernes all persons in generall and also all Forrests and Chases whatsoever And for that it is not like to the Cases put in Hollands Case 4. Coke upon the Statute of 13. Eliz. VVhich concernes all Ecclesiasticall persons in generall that this is a generall Act and yet concernes but one Genus in particuler But the Statute of 1. Eliz. Is otherwise which concernes the Bishop which is but a species of this Genus as it is resolved in Elmers Case 5. of Coke And also he conceived that it shall be releeved by the Statute of 35. H. 8. And so prayed Judgement for the Defendant And Haughton conceived that the words of the Statute intend such a person to whom VVood is sold for one turne only And not he which hath Inheritance of Wood that there is no word in the statute to exclude Commoner and such a Vendee is not without remedy for he is within the statute of 35. H. 8. If he pursue his remedy according to the statute and so prayed Judgement for the Plaintiff And at another day Foster Justice argued that the Plaintiff in the Replegiare shall recover and said that the cause consists of three parts First the Arbitrement Secondly the assurance Thirdly the private Act of Parliament of 27. H. 8. And to those the Arbitrement and the assurance shall tye only those which are parties to it and no others and the Commoner is not party to that nor shall not be bound and the private Act confirmes the assurance saving the Right of all strangers by which the Commoner is exempted and also the statute is made only as confirmation of the Grant and for that it shall not extend to any other thing nor to other parties but those only which are parties to the Grant as if the Queen had made a voydable Patent and after had made a Lease for yeares and after by the statute of 18. Eliz. All Letters Patents made within such a time were confirmed this makes the Letters Patents good against the Queen but against the Lessee And also all the Covenants in the Grant extend only to the Lord Rich and his Heires and these which claim under him And for that it shall not extend to the Commoner and also the private Act saves the Right of all strangers by which the Right of the Commoner was saved And he conceived that the Commoner shal not be excluded by the statute of 22. Ed. 4. chap. 7. which recites that if any Subjects have any Woods growing in his own Ground within any Forrest Chase c. Shall cut the same VVood by lycense of the King or his Heires in Forrest Chases c. Or without lycense in the Forrest Chase c. of any other person or make any Sale of the same VVoods It shall be lawfull to the same Owners of the same Ground whereupon the VVood so cut did grow and to other such persons to whom the said Wood shall happen to be sold Immediatly c. to cut and inclose the same Ground with sufficient hedges able to hold out all manner of Cattell and Beasts and to continue the same by the space of seven yeares without suing of any other Lycense of him or of his Heires or of any other persons or of any their Officers of the same Forrest Chases c. By which words it appeares that the statute doth not extend to any Wood of the King but only to the Wood of the subject lying in Forrest of the King or of other person owner of the Forrest or Chase And if it be in the Kings case and he hath lycense from the King to cut the Wood then may he cut it without other lycense according to the perclose of the Act And the statute doth not give lycense to Inclose without the assent of the Commoner but without other lycense of other Officers of the Forrest And by this Statute the Owner of the Ground may first cut the Wood and then Inclose But by the Statute of 35. H. 8. Otherwise it is for by this he may first inclose and then cut within four Moneths and that Sir Francis Barrington hath no interest in the Soyle and that this Statute of 22. Ed. 4. is a private Statute and ought to be pleaded for it concernes only forrests and Chases and it is no other then if it had been of al Woods in Parks and resembled that to the statute of 1. Eliza. of the Bishop which concerns only the Bishop and it is resolved in Elmers case to be private and the same Judges shal not take notice of that without pleading and it is not like the statute of 13 Eliz. which concerns al manner of spiritual persons in general and also that this statute is repealed by the statute of 35. H. 8. which is a negative Law and Leges posteriores priores contrarius abrogant and it is agreed in Porters case 1. Coke and so he concluded that Judgment should be given for the Plaintiff Warburton Justice to the contrary and yet he agreed that neither the Arbitrement nor the conveyance nor the private act excludes the Commoners for these reasons which have been urged by Foster but he relyed only upon the statute of 22 Ed. 4. and to that he sayd that the statute gives power to the owner of Ground to inclose and it should be frivilous for him to inclose if the
Commoner shal not be by that excluded and he said that the persons mentioned in the statute are two The first is the owner of the ground and such person he agreed Sir Francis Barrington is not The second is such person to whom such wood shal happen to be sold and such Person it seems is Sir Francis Barrington and yet he agreed that he hath an Inheritance in the Trees and the Owner of the soyl cannot cut them nor dig the soyl from the Roots of the Trees for then the Grant could not take effect and he sayd there is no difference between sales of Wood though that the statute speaks of the Person to whom Wood shall be sold and another person to whom it shal be given without consideration and to that he resembled the statute Westminster 2. Chap. Si quis alienavit terram uxoris suae non deferratur c. sed expectet emptor c. though that the statute mention buyer only yet Donee without any consideration shal be intended in it and that the statute doth not intend within it and that the Statute doth not intend sale Vinca vice tantum but rather sale of Inheritance for such Vendee may rather intend the preservation of the wood then the other And he inferred upon these words of the statute to inclose the same Grounds with hedges sufficient to keep out al manner of Cattel and beasts out of the same Grounds and these words expound themselves for they shal not be intended Deer but Cattel which belong to Commoners and so is the statute of West 2. Chap. If Infant suffer Usurpation this shal not bind him but this shal be intended where he hath Advowson by discent and not by purchase and this appears by the words of the statute which are Cum aliquis vis presentandi non habens presentavit ad aliquam ecclesiam cujus presentatus sit admissus ipse qui verus est patronus per nullum aliud breve recuperare potuit advocationem quam per breve de recto quod debet perminare per duellum vel per magnam assisam per quod heredes infra etatem existentes per fraudem negligentiam custodis multities ex heriditatem patiebantur c. By which words it appears that there ought to be presentation which passeth by fraud and negligence of the Guardian which the Statute remedies and that is presentation which he had by discent and not by purchase and in the Time of Ed. 1. Fitz. trespas 239. It is said the Law of the Chase that none may inclose his own Wood without the view of the Forrester and if the statute of 22 Ed 4. Gives license to inclose and that notwithstanding the Commoner may put in his Beasts then is the statute made in vain and it is resolved in the 30 of Ed. 3. Fitz. trespas that if a man hunt in a Park or Chase that this is not within the statute of VVestminster 1. Chap. 21 Ed. 1. So the statute of 22 Ed. 4 Extends to the Kings Deere and also to other Beasts which shal be intended â—he Cattel of the Commoners and it is not repealed by the statute 35. H. 8. For these statutes are made for several purposes and consist upon several grounds and if the statute of 22 Edw. 4. be repealed then there cannot be inclosure in forrest or Chase at al And which is general Law and the Justices ought to take notice of that without pleading and that al Lawes to some respects may be intended to be special as the statute of 13 Eliz. Concerns only spiritual men and so Charta de foresta concerns only forrests and the statutè of 3 H. 7. Chapt. 1. Gives appeale to the Wife for the death of her Husband and though that al these statutes concern one thing only and for that to some intent may be said to be special yet they are al generall Laws and so he concluded that Judgment shal be given for the Defendant VValmesley agreed with Foster in al that is that Sir Francis Barrington hath nothing but profit In alieno solo and for this cause was not within the statute of 22 Ed. 4. Which might inclose and the Common Law doth not exclude the Commoner for the Lord Rich granted the Wood and this Transit cum onere to Sir Thomas Barington and sayd that it was in vain to dispute if the statute of 22 Ed. 4. was private Law or if it were repealed which makes nothing in the Case and so he breifly concluded that Judgment shal be given for the Commoner which is the Plaintiff Coke cheife Justice agreed that Judgment shal be given for the Plaintiff and did agree that the Arbitrement the Convaiance nor the private Act made nothing in the Case for by these the Commoner cannot be barred of his Common but for the statute of 22 Ed. 4. He would first consider how the Law was before the making of that and as to that it appears by the statute of Charta de foresta that by the Common Law no man which was Owner of Wood in which another had Common that they could not inclose but Assise of Common or action upon the case lyeth as it requires and if it be several Wood within the Kings Forrest in which none hath interest of Common then may he inclose by the view of the Forresters and this hold inclosed by the space of three years as it appears by the Preamble of the Statute of 22. Ed. 4. Cum parvo fossato bassahaia that is a Little Ditch and Low Hedge for that the Kings Deare are not shut out and this appears in the Register in the Writ of Ad quod damnum Fitz. Na. Bre. 226. f. And then comes the statute of 22 Ed. 4. and gives power to inclose with such sufficient Hedges able to keep out al manner of Beasts and Cattel And then considered between what persons the statute is made And to that he conceived it is made between the King and his Successors of one part and Subjects having woods growing upon their owne Grounds and such persons unto whom such woods shal happen to be sold of the other part and a Commoner is not named in the statute and also the Body of the statute is not general but there are some words in one sentence and this is but a sentence and cannot be divided the words are First The sayd Hedges so made may keep c. Secondly And repaire and maintain them as often as need shal be within seven years Thirdly without suing any other License of him that is the King or his Heirs or other persons that is which have forrests or Chases or any of their Officers and here the sentence concludes and there is no period before them so that this statute being made between the King and owners of forrests and Chases of one part and Owners of woods in their own soyl and other persons to whom such woods should be sold other
Tenement and also prescribed for House-boot Plow-boot and Cart-boote and averred that he had nourished the growing of the Trees upon his sayd Copy-hold and that the sayd Messuage and buildings upon that were ruinous and the Trees growing upon that twenty Acres of Land were not sufficient for the repairing of it and so demanded Judgment if he should be debarred of his Action upon which these Defendants demurred in Law and it was adjudged by Coke Warburton and Foster Daniel being absent that the Action was wel maintainable against Walmesley who objected that if a Copy-holder may cut Trees as it was here pleaded at his pleasure without pleading first that his House was in decay and ruinous and that then he cut trees for the repaire of that that then he hath an Estate at wil according to the Custome and not at the Wil of the Lord and he sayd that he could not cut a tree and imploy that for Reparations twenty years But the cause of this cutting which is the Ruines ought to precede the cutting and he sayd that such Copy-holder hath no property in the Trees by such prescription no more then he which hath Common of Estovers or tenant at wil and if he cut a tree without special custome he shal be punished in trespasse as Littleton saith of Tenant at Wil and also he ought to plead how the House was ruinous and what place and what part of that was in decay and then that this so being in decay that he cut trees for the repaires of that and also that the Prescription to cut off the boughs Pro ligno combustibili is not wel pleaded for by that he may cut all the timber and others also and he who prescribes to hate Estovers ought to prescribe to have reasonable Estovers for Fuell and the averment that all the trees are not sufficient for reparations is surplusage and so hee conceived that the Action for these causes is not maintainable that is that it is not maintainable without speciall custome and that the custome as it is pleaded here is voyd but it was answered and resolved by Coke and the other Justices before cited that the Action was wel maintainable at the Common Law without such Custome and that the pleading of the custome was surplusage for it was agreed that the Copy-holder hath special property and the Lord a general property and it was sayd by Coke and Foster that the Lord may as wel subvert the Houses as cut down the Trees for without them the Copy-holder hath no means to repaire that and for that if the Lord cut the Trees the Copy-holder may take them for repaire of his house for the Copy-holder hath as large an Estate in the trees as in his Copy-hold Land and it was resolved that the Prescription was very wel pleaded insomuch that the Copy-holder pleads that as a custome and also that prescription Pro ligno combustibili is Good and this is an apt word by which he may claim it and that boote in any sense is maintainable and in some sense is Recompence or Reparation and it is House-boote Hedge-boote Fire-boote Plow-Boote c. Is in it self a Saxon word and the Lord Coke sayd that it was adjudged Michaelmas 25. and 26. Eliz. in Doylyes Case Where it was a custome that the Copy-holder might cut Merisme for to repaire that if the Lord carry it away that an Action of Trespass lies for the Tenant and Pasch 36. Eliz. Taylers Case A man was Tenant by copy of Court Role of wood and the soyle was excepted to the Lord and yet the Copy-holder maintained an Action of trespass against his Lord for cutting of wood And Trinity 4. Eliz. Stebbings Case Copy-holder prescribes to have the Loppings of all the trees growing upon the Copy-hold and the Lord cut a tree himselfe and the Copy-holder brought an action upon his case and adjudged that it lyeth wel and 9 H 4. Fitz. Waste 59. by Hull that Tenant by copy of Court Roll cannot make waste nor cut woods to fel but for his Benefit in repairing of his House and 2 Henr. 4. 12. a. It seemes that if a stranger cut a Tree the Lord may have an Action of trespass and the Copy-holder another and every one of these shal recover Damages according to his interest that is the Lord by his general property and the Copy-holder for his special property it appears by Clark and Pennyfathers case 4 Coke 23. b. That the Heir of the Copy-holder may have an Action of Trespass before admission by which it appears that the heir doth not take his Estate of the Lord but of his Father and also agree that if such an Heire dye before Admission the Heir may enter and take the profits and so it was adjudged that the Action of Trespass brought by the Copy-holder against his Lord was well maintainable Pasche 1610. 8. Jacobi In the Common Bench. Earle of Rutlands Case EARLE of Rutland Plaintiff in an Action of trespasse upon the Case against Spencer and Woodward Defendants the case was The last Queen Elizabeth Anno 42. Eliz. by her Letters Patents under the great seale of England granted to the Earle of Rutland the Office of the custody of the Porter-ship of the Castle of Nottingham Habendum to the sayd Earl to be executed by him or his Deputy during his natural Life and further the same Queen by the same Letters Patents granted to the sayd Earl the Office of Stewardship of diverse Mannors Habendum exercendum cum omnibus feodis vadis proficuijs eidem Officio pertinentibus to the sayd Earl from the time that he should be of ful age during his Life and further the sayd Queen granted to the sayd Earle the Office of Keeper-ship of divers Parks and forrests Habendum exercendum Officium predictum cum omnibus singulis suis proficuijs vadis feodis emolumentis quibuscunque eidem Officio pertinentibus aut ratione ejusdem percipiendis per se vel sufficiendem deputatum sunm c. And after in the sayd Patent it is recyted that the sayd Earl was of ful age An 40 Eliz. Vt informamu r mandamus quod omnes singuli Officiarij alij quicunque sint intendentes obedientes dicto Commiti deputatis suis in exerendo officium predictum and if this patent were good or not was the question And Hutton serjeant conceived that the Patent was good and that the sayd Earl may exercise the sayd Office of Stewardship for which this Action was brought by Deputy by force of the sayd Grant The first question which hee moved was if Steward of a Court may execise his Office by Deputy without speciall Grant of that Secondly if there be words within the Patent to enable him to execute that by Deputy Thirdly if upon this disturbance action upon the case Quare vi armis lies And to the first he conceived that the Patentee may exercise the
22 Assise 24. 48 Ed. 3. 8. Register 47. And in case that one common person hath any Office which he cannot exercise by a Deputy yet if he be imployed in the Kings service as if he be made Ambassador out of the Realm or other such imployment he may during his absence make a Deputy and this shal not be forfeiture of his Office and an Earl in ancient time was not only a Councellour of the King but by his Degree was Prefectus sive prepositus commitatus as it appears by Cambden 106 107. Comes prefectus Satrapas which is Prepositus comitatus and was in place of the Sherif at this day and when that he was Sherif though that he had the custody of the county committed unto him which was a great trust yet then by the Common Law he might make an under Sherif which was but a Deputy the like Holinsheads Chronicle 463. Amongst the customes of the Exchequer he called the under Sheriff Senescallus which agreed with the Definition before for he held the place of Sherif himself and by the statute of Westminster 8. chapt 39. It is sayd that Vice comes est viccarius commitatus and if a Barony discend upon the Sheriff yet he shall continue Sheriff 13. Eliz Dyer and Britton 43. If a Rybaud strike a Baron or a Knight he shall loose his Land And Tenant by Knights service may execute it by Deputy 7. Ed. 3. Littleton And if it be so in the case of a Sheriff which hath the County committed to him that he may make a Deputy by the Common Law upon that he inferred that the Steward which hath but the Mannors of the King committed to him that he may make a Deputy And also he said that the words in the last clause that is Volentes precipentes that the Officers and the Subjects should be attendant expoundes and declares the intent of the Queen for the words are Omnibus premisses and the Grant of the Office of the Stewardship is one of the premisses and so he concluded upon these reasons that Judgement shall be given for the Plaintiff and that the Grant was good and the Action wel maintainable And oâ— this opinion were Warburton and Foster Justices And Judgement was given accordingly this Trinity Tearm 8. Jacobi And Coke cheife Justice remembred a Report made by him and Popham cheife Justice of England upon reference made to them that this Patent was good and that the Earle of Rutland might exercise this Office by Deputation and he conceived that there were other words in the Patent which were found by the Jury that the said Earle should have the said Office Cum omnibus Juribus Jurisdictionibus c. as full c. as any other Patent hath been had and withall the Appurtenances and it seemed that a former Patentee had power by expresse words to execute that by a Deputy and he conceived though these words Adeo plene c do not inlarge the Estate yet this inlargeth the Jurisdiction of the Officer as in 43. Ed. 3. 22. Grant is made by the King of a Mannor to which an advowson is appendant Adeo plene tam amplis modo forma c. And these words past the advowson without naming that and he said it was adjudged Hillary 40. Eliz. in Ameridithes case where the case was the Queen granted a Mannor Adeo plene intigre in tam amplis modo forma as the Countesse of Shrewshury or any other had the same Manno r and Queen Kathrin had the same Mannor and diverse liberties with it of great value during her life and adjudged that these liberties should passe also by this Patent by these words and so in the principall case if the former Patent had been found also by the Jury and so was the opinion of Popham and him and was certified accordingly FINIS A Table of the Second Part. ARch-Bishops Jurisdiction 1 2. 28. Admiralties Jurisdiction 10 11. 13 16 17. 26. 29. 31. 37. Arbitrement satisfaction what 31. 131. Assumpsit 40 41. 273. Arrianisme one committed for it 41. Assets 47. Almony 36. Apurtenant what shall be said 53 Action sur Case by a Commoner for words 55. 84. 100. 119. 122. Avowry the whole plea 62 63. 102 Agreement what 72 Account 76 Audita Querela 81. 83. 168 Atturnment good by one under age where and why 84 Award void 100 Age not allowed in Dower 118 Administration repealable 119 Accord with satisfaction good plea where where not 131 Attorney ought to finde Baile in an Originall not Bill 134 Action sur Assumpsit 137 Assuâ—psit against an Executor where maintainable 138 Assets in Formedon what 138 Attachment 144. 168 Assent to a Legatee 173 Ayd prayer 191 Attachment for contempt of the Court 216 Accessary null unlesse there is Principall 220 Assignment of an estate suspended 225 Assise of novel Disseisin 229 Abatment of brief per entry 231 232 Abatement de facto and by plea differ in what 235 Agreement and Arbitrement good pleas where 132 Agreement by word to keepe backe tythes 17 Admiralls Commission for measuring of Corne 29 Administration during minority of c. 83 Atturney brings Debt for Trees 99. Arbitrement 130. 131. Arrest of Judgment 167. Acts what to make an Executor de seu tort 184. Attachment of Priviledge for an Estate against the Marshall c. 266. Assise where it may lye sans view 268. Assise the Recognitors challenged ibid Ajournment of the Tearm 278. Annuity or Writ of Covenant where 273. Arbitrement submission and revocation 290. Approvement of Common 297. Account 308. Award submission 309. Arbitrement 310 Arbitrement who it binds 323. Assise del Office 328. B BIshop not displaceable 7. Baron alone cannot sue for not setting forth Tithes without the feme proprietory 9 Ballast granted to Trinity House a Monopoly 13. Baron and Feme joyn where 66. Baron Judgment against an Executor 83 Baron how chargeable pur sa feme 92. 93. 95. Bar in trespass 121. By-Laws whom they bind 180. To what extended 258. Baron and feme take by intirity where 226. Barwick whether part of England or Scotland 270. Bayle 293 Banckrupt actionable 299. C CHase an action not to be divided 56 Cui in vita of Copy-hold 79. Custome for pound breach 90. Common Recovery 16. Copiholder shall hold charged where 208. Confirmation to a copiholder destroys common 209 210. Consultation after it no Prohibition grantable upon the same Libell 247. Cape grand Petit 253 Cause of a commitment traversable 266. Count in trespass after the teste del Breife 273. Covenant to pay Rent 273 Continuance Ibidem Chellenge 275 Customes of London argued by the Justices 284. 285. 286. Certiorari 312. Capias ad satisfaciendum no satisfactory execution 312. 313. 314. 315. 316. Copy-hold at common Law 44. Creditor may sue both heireand Executor 97. Court of Equity not proper after Judgment 97. Copyhold intayled 121. Covenants direct and collaterall how they differ 136.
extortion 151 Jeofailes stat 168 Judgment arrested 182 Joynt Tenants for years of a Mill and grants c. 212 Judgment in a Writ of errour 215 Intendment where 234 Judgment Sur breife abatest errour 235 Imprisonment unlawfull 20 Impropriation 24 Instruction for the Presidents of Wales 29 Judgment reversed for the Outlawry only and confirmed for the other 39 Joynture 52 53 Information sur stat 21. H. 8 chap. 13. For non-residency 54 Judgment voyd 127 Informer exhibits a Bill in the Star chamber 151 Imprisonment for a force when or not 266 Justices of Peace and Auditors ought to make Record where and when Ibid. Indemptitas nominas 270 Jurors from two countyes 272 Infant levies a Fine brings errour 278 279 K KIngs Grant voyd for defect in recitall 241 King is specially favored in the Law 249 Kings Patent how to be taken 250 L LIcense from the Ordinary where 1 License how many kinds 3 27 Legates Jurisdictions ibidem License to a Copyholder when pleadable by whom 40 Limitation and Condition their difference 68 Levant couchant what 101 Lease by a Dean 134 Livery voyd where 135 Libellous Letters 152 Law of England of what it consists 198 Lateran Councell concerning Tithes 24 License to appropriate 25 License to a Copy-holder 40 Lord of a Mannor inclose the Demesnes 168 Letter of Attorney cannot be made by a wife 248 London the custome for an Inn-holder 234 Lease to determine upon limitation 292 Letters Patents how expounded 323 License in a Forrest 323 M MArriage disagreed to at yeares of consenting c. 36 Misnosmer in an obligation what it effects 48 Marriage a gift of all goods personall 91 Merchant 4 sorts 99 Meale accounted dead victual within the stat 5 Ed. 6 chap. 14. 116 Mayme is fellony 220 Modus decimandi 33 Murther sur Thames where tryable 37 Maxime in law 43 Misnosmer of a corporation 243 Mainténance 271 Minister arrested 301 Marshall court its jurisdiction 125 126 127 N NOn-suit 41 Nisi prius record amended 41. Non-residencie the statute 21 H. 8. 13 expounded 54 Non-suit after verdict 219 Nisi prius by proviso for whom 276 Notice where requisite 278 O ORdinary cannot imprison 4 Ordinary may imprison a preist by 1. H. 7. 4. Ibid Obligation taken for a legacy incourt court Christian 11 Ordinary may transmit 28 Office granted by a Bishop 137 Occupancy where â—02 Outlary in fellony was reversed 229 Offences exorbitant what 19 20 Obligation to performe covenants 167 Officers gradâ—all of the Kings bench who 282 Obligation with condition against law or impossible 281 Outlary 313 Office exerciseable by deputy where 334 335 P PRohibitionupon the stat of 13 H. 8 chap. 9 Polygamy punishable where and how 7 Prohibitionjoynt and severallcounts 7 Prohibition surle stat de simony 7 for not settingforth of tythes 9 Prescription for tythes 31 33 34 Prohibition to the admiralty 34 to court Baron 34 Prison private and common 41 Prescription for inhabitants 178 Prohibition for common 47 Prescription none after consultation duly granted 36 Parson deprived for drunknesse 37 Proofe what 57 Priviledg out of higher court to inferiour 101 Payment directed how 107 108 Patent of a Judge 122 Papist that not actionable 166 Possibility resonable where 173 Prescription and custome do differ wherein 198 Prescription 210 211 Prohibition to court Christans 215 Prerogative del roy 219 Prescription for waife and stray 219 Paunagium quid 236 Prohibition good sans action pendecit 17 Priviledg determined 22 Processe from the admiralty 29 Prohibition not grantable after consultation 36 Possessio fratris 43 Plurality with dispensation 45 Pardon of one attaint pro false verdict 47 Prescription where good where not 64 Per que servitia 84 Prescription for beasts sans number 101 Physitians colledge the authority 256 Physitans examined by whom 257 Priviledg of attorney allowed before the Deputy Marshall where 267 Partition without naming the parts good where 275 Prohibition to the Court of request 297 Copyholder prescribeth Pro ligno combustibuli 330 Q QUare impedit 45 Quo warranto 217 Quare ejecit infra terminum 133 Quare clausum fregit where it lieth 322 Quare Vi Armis where it will and of what 331 332 334 R RIght to a spirituall Office is temporall 12 Residency where 13 Ravishment against feme covert 59 91 92 93 Replevin 84 52 149 Right the Writ 138 Remainder in a Chattell 173 Release where not good 190 Release of one Church warden shall not bind the other 216 Restitution to the Heir of an accessory where the principall reversed the outlawry 220 Reservation of Rent at Michaelmas ten or dayes after 220 Reservation not taken strictly 221 Right to a tearm not grantable 226 Revocation the power when suspended 228 Return of the sheriff where good 145 Revocation of uses 157 Remainder of a Chattell 173 Request where necessary 176 Release of Dower by Fine 175 Replevin 248 Re-entry after possession executed 253 Release 254 Return of writs granted to a corporation 270 Replevin 297 Release 300 S STatutes ecclesiasticall by whom to be expounded 2 3 Surrender an attornment where 51 Scire fac by baile 76 Scire fac against an Executor 83 Surrender by Cognisor c. 97 Statutes pro bono publ taken by equity 110 111 Summons in Dower 122 Scire facias for whom 145 Seisin of a Rent p. vicâ—â—nt 237 Submission awarded 48 Survivorship not aâ—ongst Merchants 99 Statute penall 112 Scire facias speciall non-tenure a goodplea 146 Seisin to have Assise what sufficient 241 Slaunder of an Attorney what 252 Slaunder 272 276 299 Sheriffs power what 281 Vnder sheriff how limited ibid Sheriff may limit the Authority of his Vnder Sheriff 282 Sheriff committed for taking undue Fees 283 Suit begâ—n hanging another 293 Statutes how to be understood 305 306 307 T TYthes what Lands are free of them P. 8 21 22 23 24 Taxes for Church-Reparations and other like dutyes who are chargeable and how 10 Tithes not grantable P. Parol unless by way of Retainer 11 Tithes where discharged by unity of possession 26 Transmission of causes where 27 Tenant in Dower disseised 41 Tayl its incidents 67 By Copyhold custome 77 Its Creation and nature 79 Testibus lies what comes after no part of the Deed 99 Town cannot be corporate without the assent of the Major part c 100 Trespass for a commoner good 149 By the Lord against the commoner 168 Trespasse for assault 182 Tales challenged 235 Tythes their antiquity 24 Tythes of what not payable 32 33 Trespasse for breaking of a close 65 Teste of a ven fac amended post verdict 102 Trespasse for imprisonment 124 125 Tenant pur view with warranty 191 Testatum where no writ issued 209 Tythes not paid for seven yeares of what 257 Tayl 271 Trade with Infidells without licence 296 U VEn fa. amended after verdict 102 Voucher P. attorney 167 Voucher sur bre abateable the danger 185 Verdict speciall 187 188 189 Verdict doth not cast
a Book that ought not be given in evidence the Court above cannot remedie it except it be returned with the Postea A release to Tenant at sufferance void Commoner cannot chase the Lords Cattell if the surcharge be Common The Statute of 13 Eliz. for non-residence a generall law Where Husband and Wife shall be joyned and where severed in Action The Venire facias vicious no damages in Partition If the Jury find a man guilty in Trespass for a foot where it is layd in an Acre good enough and so in all Actions where damages onely are to be recovered Nota. Error assigned because in trespass nothing was entred of the Fine c. where it was a continued trespass and part of it was layd to be after the Pardon Nota. Nota. If the verdict find the tenure in substance though not in manner and form it is good intrespasse Difference between Replevin and Trespass In a writ to enquire of damages the Plaintif is not bound to prove the property of goods but the value only Where of his own wrong without such cause shall be a good issue and where not The Defendant prescribed for a passage over Land and naught it should have been for a way Nota. If the Lord cut the Wood in which the Commoner hath Estovers he shall have an Action of the Case but not an Assise Nota. Nota. Nota. An action will not lie for the counter-part of an Indenture without a speciall grant Nota. A man cannot Justifie the digging of a mans ground in hunting a Badger Nota. Nota. One Venu out of two places in the same County Whether a Copyholder may lop the trees growing upon his Copy-hold and held he might The Copy-holder is in by custome which is above the Lords estate The Copy-holder shall have trespas upon the Case against the Lord for cutting down of trees Nota. Nota. Nota. Nota. Nota. Nota. Waste in the Tenuit for digging of Sea coals Custodes Brev. Capital Prothon Sedi ' Prothon Try ' Prothon Cliri ' Warr. Cliri argenti Regi Cliri Error Cic. lib. 1. de Invent. Rhet. Prohibition upon the statute of 23. H. 8. Chap. 9. Prohibition to the High Commissioners High Commission Prohibition Joynt prohibitions and severall Counts Prohibition upon the statute of Symony upon the stat of 31. Eliz. Prohibition upon the Statute of 32 H. 8. for the dissolution of the Hospitall of Saint Johns of Jerusalem For not setting forth Tythes Husband sue only Prohibition to the Cort of Requests Against Forreiner for Ornaments for the Church and for Sextons wages Admiralty Contract for retaining of Tithes Admiralty Prohibition At the Archess discussed in right of Office Prohibition Admiralty for staying ships for Ballast High Commissioners and their power in Ministring Oâ—th and taking obligation High Commission Clandestine marriage Admiralty Coâ—rt if a thing done beyond Sea shall be there tried Agreement by word â—…p back tithes Where a Prohibition shall be granted without Action hanging High Commissioners Alimony Adultery Houghton Shirley Barker Court of Admiralty's Jurisdiction Admiralty Prohibition Modus decimandi Prohibition to a Court Baron Replevin 2. Executors one refuses Waste 2. Executors one refuses Bargaine and sale upon Condâ—… Ravishment of Ward Mich. 〈◊〉 Jacobi Rot. 213. Common of Pasture Trespasse Ejectione firmae Common Recovery Judgement in Debt Accompt See the beginning fol. Debt by Executor Administrators during the minority of the Executor Action upon the Case for words Replevin Attornement of Tenant being under age of 21. yeares Shirley Harris Harris Montague Hutton Surrender after Statute acknowledged Executors sued and also the Heire Court of Equity Debt upon a Bill Harris Shirley Fealty gives Seisin of all annuall Services Atturney brings Action of Debt for Fees Survivor doth not hold amongst Merchants to have all Award void Action upon the Case for words Devise that Executors shall sell Land A Towne incorporated with the consent of the greater part Action on the Case for slander Action upon the Case for suing one in a Court which hath no Jurisdiction Prescription for Common for Beasts without number Priviledge out of higher Court Fine amended Feoffinent to a Son and Heir for a valuable consideration Avowry Teste of a Venire facias amended after verdict Ejectione firme Ejectione firme Dodridge Houghton Replevin Grant without date Obligation Accompt Information Dodridge Hanghton Montague Dodridge Dower Debt against Administrator Commission to the Councell in Wales Caveat to a Bishop If administraon to the next of blood cannot be repealed Action for words Trespasse for breaking a House and taking a Cow Haughton Barker Barr not good Copy-hold intailed Extent upon a Statute Summons in Dower Patent of a Judge of the Common bench Action upon the case for slander Haughton Barker Periured Actionable Trespasse for imprisonment Dodridge Hutton Coram non judice Judgement void Shirley Wynch Foster Arbitrement Lease by the Dean and Chapter of Norwich Hutton Haughton Office granted by a Bishop Assumpsit Wilt of Right Haughton Nicholls Dower of titâ—e of Wooll Attachment Executrix during nonage Nicholls Harris Copy-holder Harris Dodridge Coke Replevin Waste Informer Lybell Debt against Administrator Copy-hold Coke Revocation of Uses Dodridge Nicholls Dodridge Nichols Wynch Warburton Coke Common Recovery Obligation to perferme Covenants Arrest of Judgment Audita querela Wast Estrepement awarded Ejectione firme Refusall Lord of a Mannor inclose the Demesnes adjoyning to the Common Warrantia Charte Dodridge Nicholls Devise of a Lease Dodridge Harris Assent to a Legatee Remainder of a Chattell Sherley Debt by Obligation Request is necessary for his Rent though that he have a bond for performing Covenants Nichols Debt Wynch Warburton Debt against Executors Davis What acts doe make an Executor De son tort what not Barker Warburton Wynch Trespasse Harriot Nicholls Harris Coke 253 Eliz. Dyer 193. a. Wrensfords case accordingly Warberton Wynch Release Cinque Ports Tenant for life with warranty Nicholls Haughton Wynch Warburton Ayd granted Coke Wynch Verdict uncertaine Falkland What is so called Warburton Coke Quod non occupantur conceditur Debt against Administrator for Rent in the Debet and Detinet Chibborne Detinet onely 2. Heire charged in Debet and Detinet 3. Towse Crook and Harris Joynt Covenant shall survive Copy-holder shall hold charge Error Elegit Testatum where no Writ had issued Confirmation to a Copy-holder destroys Common Expresse Covenant qualifies Covenant in Law Prohibition Defendant re-enters after Possession delivered by Habere facias possessionem Custome among Copy-holders Nonsuit after Verdict Reservation of Rent Michaelmasse or ten dayes after Grant of Common extinct Exposition of Usage Ejectione firme Errour Abatement of a Writ by entry Markhams Grant Earle of Rutlands Patent Challenge Earl of Rutlands Patent Challenge Abatement Errour Variance Seisin Abridgment of the Plaint in Assise Yelverton Fenner Challenge prin Flemming What matter shall be assigned for Error after Judgement Variante Challenge Seisin Misnaming of a Corporation Walter Yelverton Fenner Flemming Prohibition Prohibition A married Wife cannot make a Letter of Attorney Replevin Warburton Justice Walmesley Re-entry after possession executed Slander of Attorney Grand Cape Petit Cape Waging Law Release Inn-Keeper in London Action of false Imprisonment Serieant Harris the younger Walter Walmesley Coke Priviledge Assise View Coke Walmesley Challenge Errour in a Fine Barwick Returne of Writs Idemptitas nominis Fine Infant Tayle Maintenance Habeas Corpus Prohibition Trespasse for Slander Party Jury of two Counties Action upon the Case for Slander Errour Covenant for Rent Continuance Assumpsit Consideration Debt against Executors Errour Ve. fa. hab Carpus Formedon in Remainder Challenge Partition Dures Action upon the case for slander Prohibition Will. Devise Priviledge Postea 218. Adjournment of Tearm Infant levies Fine brings Errour Action upon the Case Action upon the Case Debt for Obligation Hutton Dodridge Court Sheriff committed to the Fleet. Grant of a Rent Priviledge of London Harris Hutton Where the Owner of Wood may Inclose Hutton Arbitrement Submissior Revocation Devise and grant â—enures to bargaine and Sale Harris Lease to determine upon Limitation Grant of the King that the Burrough should be incorporated Bayle Suit begun hanging another Writ Casuall intire Services Harris Nicholls Foster Dauiell Warburton Walmesley Coke Trade with Infidels without License Prohibition to the Court of Requests Approvement of Common Walmesley Foster Action upon the Case for Slander Bankrupt actionable Grant of Reversion Error in Proclamation Forfeiture of Office of a Chiroghapher Release Error in a Writ of Dower Copy-hold Certificate of the Bishop Minister Arrested Grant of the King of Alnage Haughton Dodridges Statutes how to be understood c. Account Devise of a Teerme Award Submission Arbitrement Where the death of the Defendant in Execution shall be satisfactory Dodridge Certiorari Outlawry Hutton Foster Debt upon escape against whom Warburton Land extended at too high rate Walmsley Coke Harris Haughton Foster Justice Warburton Walmsley Coke Charta de Foresta Assise Office Trespasse Estovers Boote its signification c. Nicholls Walmesley Coke Fee when forfeited Trespass Grant le Roy.
Subject may do it but till he be delivered by due course of Law for the commitment is not absolute but the cause of that is traversable and for that ought to justifie for speciall cause for if the Bishop returnes that he refuses a Clark for that he is Schismaticus Inveteratus this is not good but they ought to returne the particuler matter So that the Court may adjudge of that Though it be a matter of Divinity and out of their Science yet they by conference may be informed of it and so of physick And they cannot make any new Laws but such only which are for the better government of the old and also he said plainly that it appeares by the Statute of 1. Marie That the former Statutes shall not be taken by equity for by these the President and Commons have power to commit a Delinquent to Prison and this shall be intended if they shall be taken by equity that every Goaler ought to receive him which is so committed But when it is provided by 1. Marie specially that every Goaler shall receive such offenders That by this appeares that the former statute shall not be taken by equity And so he concluded that Judgement shall be entred for the Plaintiff which was done accordingly Trinity 7. Jacobi 1609. In the Common Bench. IN Debt upon escape brought by John Guy an Attorney of the Common Bench by an Attachment of priviledge against Sir George Reynell Kt. Deputy Marshall of the Prison of the Kings Bench the Defendant pleads his priviledge that is that he was Deputy Marshall and he ought not to be sued in other Court then in the Kings Bench according to the ancient Custome and Jurisdiction of the sayd Court upon which the Plaintiff demurred and upon argument of both parties it was adjudged that the Defendant should not have his Priviledge and the principall reason was for that the Plaintiff was an Attorney and ought to have his priviledge in the Common Bench and for that that this Court was first possessed of the Suit it shall not be stayed because of the Priviledge of the Defendant in another Court see 9 Ed. 4. 53. the last case where it is agreed that one of the Courts may send Supersedeas to another for there it is agreed that if an Accountant in the Exchequer be sued in the Common Bench he shall send Supersedeas to them to surcease and if he be sued in the Kings Bench these of the Exchequer will shew the Record that he is accountable for they cannot make Supersedeas to the King and the Plea is there held Coram Rege c. And he shall be dismissed for he may be sued in the Exchequer and also 10 Ed. 4. 4. b. It appears that if one which hath cause to have priviledge in the Common Bench sue an Attachment as our case is against a Clark of the Kings Bench such Writ shall not be allowed for that that the Common Bench was first seised of the Plea by their Plea and the Priviledge of the common Bench is as ancient as the Priviledge of the Kings Bench and one Court is as ancient as the other for every of them is before time of memory and it is by prescription Walmesley sayd that the Possessory shall be preferred Quia melior est conditio possidentis but he agreed that if the priviledge of one Court be not so ancient as the other then the most ancient shall be preferred and it was agreed that though there be Difference in respect of parties or though that the attendance of one be of more necessity then the other as it was objected in this Case that the Defendant ought to attend otherwise he shall loose his office to that it was answered and resolved that the cause of the Suit in the Common Bench was voluntary and the attendance of the Attorney or Clark more necessary then of the Defendant for hee may exercise his Office by a Deputy but a Clark or an Attorney cannot for their office is Opus Laboris But the Office of the Defendant is only Opus Labrum and he is to deal with Gyves and Irons and such like so that in this Case the Office and place of a Clark or Attorney is to be preferred before the Office of Marshall but admitting that one Inferiour Officer of the Common Bench which is to have his priviledge sue a superiour Officer of the Kings Bench which is also to have his Priviledge there this shall not make any difference And so was the opinion of all the Court and upon this Judgment was given that the Defendant should answer over Trinity 7. Jacobi 1609. in the Common Bench. IN Assise between William Parson alias Chester Plaintiff against Thomas Knight alias Rouge Cross tenant for the office of one of the Heraulds called Chester the Recognitors of the Assise had view at a Funerall at Westminster where the Officer ought to attend and it was objected that this was no good view for it was not in any place certain where the Recognitors may put the Demandant in Possession and the Disseisin was alledged to be at Westminster at the sayd Funerall and it seems that the view was good but admitting that it were not good It seemes to Coke cheif Justice that the Assise in this case well lies without view for the Office is universall as the Office of the Clark of the Market and an Assise for Tithes and the Office of the Tennis Court these are universall and not annexed to any place and for that an Assise wel lies for them without view but for an Office in the Common Bench view may well be made in the Court for the Court is alwaies held in a certain place but for an Office in the Kings Bench Quere Inquit Coke for this ought to follow the Court of the King by the Statute of Articuli Cleri Chapter 3. But Walmesley Justice that this Court cannot be sitting in Clouds but in some place or other and for that the view ought to be here made and then Coke sayd by the same reason the Office of the Herauld cannot be exercised in the Clouds but at Funeralls and by this the view ought to be made there also but the Opinion of all the Court was that the view was well made the Tenant in Assise also challenged diverse of the Recognitors for that they were of a former Jury upon the same question and this was agreed to be a principall cause of challenge but the Court would not allow of that without shewing the Record but allowed that to be a cause of challenge for favour and for that they were tryed by their Companions being sworn to speak the Truth and they were found to be indifferent and for Seisin for the Demandant in the Assise it was shewed that diverse Fees were due to the sayd Office as seven pound for every day that he attended upon the Kings person and for the Dubbing of