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
he be Lord or Free-holder The best badge of truth is the usage of taking the profit of the Trees 11 H. 4. rot 80. Where the Court ex officio should inquire and that omitted the Court may supply it but where an Attaint lyeth that is not to be supplied as in a Valore Maritagii the value is the point of the Writ and if that be omitted by the Jury never to be supplied by Writ Cheyneys case Valore Maritagii and intrusion were at the Common Law before the Statute and the Statute doth but inlarge the Common Law for by the Statute the Judgement is otherwise then at the Common Law It is vain to plead the Execution of a Writ of Seisin upon a Recovery but to plead that he did enter MIch 10. Jac. If I purchase Land by a name and alleadge it to be in a wrong Parish or Shire it is good notwithstanding the mistake by the Court. A stranger shall be bound by a Law made for the publique good but he must come within the place where it was made The King cannot grant precedency in publique things as to go by Water or by passage on the Land as by Coach if a Bond bear Date Super altum mare then it must-be sued onely in the Admiral Court otherwise it cannot be sued there Every Bishop hath his Cathedral and Councel and the Councel and Bishop there decide matters of Controversie the Prebends have their names from their affording of help to the Bishop and in time of the vacancy of the Bishop the Arch-bishop is Guardian of the Spiritualties and not the Dean and Chapter TRin. 14. Jac. rotulo 1810. Birtbrook versus Battersby Exception raken after Triall The Action was laid in Westmerland and the Jurata written at the end of the Record was Ebor. ss ura Inter c. and recites the Day of Triall in the County of York and the place where the Triall was at York and prayed that it might be amended and it was granted to be amended by the whole Court INt. Bullen Jarvis The Venire facias was made in this Form Videlicet Liberos legales homines de B. and it should have been De vicineto de B. and it was notwithstanding held good and amendable by the Roll for it shall be intended that the Jurors are inhabiting in the Town of B. although the Sheriff returns the Jurors of other places and none of them be named of B. and the Venire facias was returned by A. B. Ar. without naming him Vic. and it was amended by the Court. GRiffin versus Palmer Trin. 15. Jac. rotulo 924. Issue taken whether the Lands contained in the Fine were ancient Demesne or not pretending they were parcell of the Mannour of Bowden in the County of Northampton which was pretended to be ancient Demesne and the Doomesday Book was brought into the Court and by that Book it appeared that the Mannour of Bowden was in the County of Leicester and not in the County of Northampton but the Councel affirmed that the Mannour was both in the County of Leicester and Northampton but it valued not for the Doomsday Book was against the Plaintiff The Court was moved to amend a Venire facias which was Album Breve but the Court would not grant it although the Sheriffs name was put to the Pannell but if the Sheriff upon the Venire facias had returned that the Execution of that Writ did appear in a certain Pannell annexed to that Writ and had not put his name to the Writ of Venire facias but to the Pannell in such case the Court would have amended the Venire facias Lessee at will cannot grant one his Estate if one occupy with Tenant at will this is no Disseisin to the Lessor If a Tenant for seven years suffer Trees to grow above the age of 21. years they are Timber and it is waste to cut them 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 holdeth over his terme and pay his old Rent he shall be accounted Tenant at will If one being sick giveth Notes to make his Will and after by infirmity of sickness he becometh so weak that his memory faileth him and these Notes are made into a Will this is a good Will otherwise it is if he become lunatique after the Notes given MIch 15. Jacobi One Warter was committed to the Fleet by the Lord Treasurer of England and the Prisoner was brought to the Common Pleas by Habeas Corpus which was returned and no cause of the Commitment expressed and for that cause the Prisoner was set at liberty and bailed TRinity Terme 15. Jacobi Hanson one of the Attorneys of the Common Pleas delivers a Note to the Sheriffs Clerk of the names of divers Jurors that were to be returned and of divers others that were not to be returned in a case concerning one Butler and for this Offence he was put out of the Roll of Attorneys In Spilmans case if I have Estovers in Land and cut down Estovers and a stranger taketh away the Estovers I shall have an Action against him that taketh them away although he have there Common of Estovers also If the Husband sow the Ground and die the Executors and not the Heir shall have the Corn but if the Father sow the Land and dieth or the Heir sow the Land and the Wife recover Seisin in Dower she shall have the Corn. The setting open a Shop on the Sabbath day is punishable by Statute Law and so is a House of Bawdry and not to be dealt with by the high Commissioners So long as the Land is occupied by him that hath the Fee-simple which did formerly belong to the Order of the Cistercians it shall pay no Tithes but if he let it for years or life the Tenant shall pay Tithes HIll 11. Jac. rotulo 90. A Recovery was had upon a Writ of Entry in le post for a common Recovery between Hartley and Towers in the County of Bucks the Attorney who prosecuted the Recovery by negligence did not file the Writ of Entry which was prosecuted orderly and all Fees paid when the Recovery was passed And in Easter Terme 14. Jac. it was moved that the Writ of Entry might be filed and it was granted although the Tenant was dead the Writ of Entry was returnable Octabis Purificationis MIch 14. Jacobi My Lord Hubbard Justice Warburton and Winch held that when there were but three Judges of the common-Common-Pleas they might argue Demurrs and if two of them were of one minde and one of the other the Judgement should be given according to their opinions My Lord Cook said that for the Body of the Church the Ordinary is to place and displace in the Chancell the Freehold is in the Parson and it is parcell of his Gleab Tpespass will
the use of her eldest Son in tayl c. With power to her self at any time to make Leases for one and twenty years and before the Lease in being expired she made another Lease to B. for one and twenty years to commence after the determination of the first Lease And as to the third part of the Land she made a Lease of that for one and twenty years after the death of one Carn who in truth never had any estate in the Land and afterwards she dyes the first Lease expires And I the Son enters and makes a Lease to the Plaintiffe And the Defendant claims under B. the Lessee And adjudged for the Plaintiffe for by such a power she could not make a Lease to comence at a day to come but it ought to be a Lease in possession and not in interest to comence in future nor in reversion after another estate ended but the Law will judge upon the generall power to make Leases without saying such ought to be Leases in Possession for if upon such power she might make Lease upon Lease she might by infinite Leases detain those in Reversion or Remainder out of the Possession for ever which is against the intent of the parties and against reason and adjudged accordingly Trin. 30 Eliz. Earle of Sussex case 6 Rep. 33. And Justice VVilliams said that when he was a Serjeant it was so adjudged in the Common Pleas in the Earle of Essex Case and Judgement by the the whole Court BRasier versus Beal Trin. 10 Jacobi Upon an especial Verdict in Ejectment the Case was that a Copy-holder in Fee of the Mannour of B. in the County of Oxford by license of the Lord lease the Land in question for sixty years to M. if he should live so long rendring Rent with a Condition of re-entry the Copy holder surrenders to the Lessor of the Plaintiff in Fee who demands the Rent upon the Land which being not paid he entred and made a Lease to the Plaintif without any Argument the Court seemed to be of opinion that the Entry of the Lessor was not congeable for Copy-hold land is not within the Statute of 32 H. 8. of Conditions nor the Lessor such an Assignee that the Statute intends for at the Common Law a Copy-holders Estate is but an Estate at will custome hath onely fixed his Estate to continue which Custome goes not to such collateral things as Entries upon Condition for such an Assignee of a Copy-holder being onely in by Custome is not privy to the Lease made by the first Copy-holder nor onely by him but may plead his Estate immediately under the Lord by the opinion of the whole Court ODingsall versus Jackson Mich. 10. Jac. In Ejectment the Declaration was that the Defendants intraverunt and that he did eject expulse and amove in the singular number and after a Verdict for the Plaintiff upon Not guilty pleaded the Defendant shewed this matter to the Court in Arrest of Judgement for the Declaration is incertain in that point because it cannot be known which of the Defendants did eject the Plaintiff for by his own shewing it appears that the Ejectment was but against one and upon that Declaration the Jury could not finde all the Defendants guilty for by the Plaintiffs supposal one onely did eject him but the Court gave Judgement for the Plaintiff that the Declaration should be amended in that point for it was but the Clerks fault and so it was and upon an Evidence in an Ejectment by the Lessees of Cresset and Smith Yelverton said that if a man comes into a Copy-hold tertiously and is admitted by the Lord and afterwards he makes a Lease for three Lives which is a Forfeiture of his Estate yet if he that hath the pure Right to the Copy-hold release to the wrong-doer that it is good for untill the Lord enter he is Tenant in fait and if the rever as Copy-holder 4 Rep. 15. But Walter seemed of another opinion and therefore quaere what benefit he shall have by the Release In an Ejectment the Plaintiff declared of an Ejectment of decem acris pisar and upon the general Issue it was found for the Plaintiff and it was moved in Arrest of Judgement because the Plaintiff had declared de decem acris pisar which is not good for Pease are not known by the Acre and therefore he should have declared de decem acris tene pisis seminaris as if a man will demand Land covered with water he must say decem acras terrae aqua co opertas but the whole Court held it good for in a common acceptance ten Acres of Pease or ten Acres sowed with Pease is all one and so is the opinion of Catesby 11 E. 4. 1. And the man the Secondary said that so it had been adjudged in the Exchequer Chamber upon a Writ of Error MEerton versus Orib Trin. 11. Jacobi Orib brought an Ejectment against Meerton in the Common Pleas 6 Jacobi of a Cole-mine in Durham in the County Palatine there the Defendant pleaded not guilty and it was found for the Plaintiff before the Justices Itinerantes there upon which Judgement the Defendant brought a Writ of Error and assigned for Errour that the Plaintif appeared by an Attourney whereas it ought to have been by Guardian being under age And upon an Issue that he was of full age was tryed at Durham and found that he was within age but the Plaintif had license to discontinue his Writ of Errour and brought a new Writ of Errour Quod coram nobis residat And declared that M. was inhabiting at Westminster in the County of Middlesex and being within age appeared by an Attorney the Defendant in the Writ of Errour confessed that he was inhabiting at Westminster but that he was at full age at the time And upon the tryall in Middlesex it was found that M. was under age And it was alleadged in Arrest of Judgement and it depended a long time that it was a mistryall and the doubt and question was onely whether the tryall at Westminster in this Case was good And Davenport and Yelverton were of opinion that it was not good for the Errour assigned was done at Durham and because they there have the best notice of it it ought to have been there tryed As if Errour be in a Record it shall be tryed where the Record is 19 H. 6. 79. Secondly This is a reall Action in which the Land shall be recovered and therefore though the Issue be upon a collaterall matter yet it shall be tryed where the Land lyes because it concernes the realty but if it had concerned the person onely it had been otherwise and this difference is taken by Montham 19 H. 6. 10. And therefore if a Feoffment be made upon payment c. If upon an Assise brought the Defendant plead payment in another place yet it shall be tryed where the Land lyes And so likewise if the Issue should be which
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
Cletherwoods Case of the Middle Temple but he said that Prescription to have all the Vesture of the Land is good for such a time and at the first day of the Argument of this Case Foster Justice seemed that the prescription was good and might have reasonable beginning that is by Grant as if they have Common together and they agree that one shall have all for one part of the yeare and the other for another part of the year and that shall be good to which Coke answered that that cannot be by Prescription to have that as Common and at another day Coke cited Shirland and Whites Case to be adjudged 26 of Eliz. in the Kings Bench to be prescription to have common in the Waste of the Lord and to exclude the Lord to have common in the place and adjudged to be void prescription and also he cited a case between Chimery and Fist where prescription was to have common in the Soile of the Lord and that the Lord shall have feeding but for so many cattell and adjudged that the Prescription was not good to exclude the Lord but a man may prescribe to have the first Crop or the first Vesture of anothers Land and it is good and with that agrees the resolution in Kiddermisters Case in the Star-Chamber Warburton justice said that this prescription is not for the excluding of the Lord but for their good ordering of their Lands according to the Book of 46 Ed. 3 25. before cited that the great Cattell should have the first feeding and after that the sheep Coke said that if it had appeared by the pleading that all the Demesnes of the Lord ought to be common and in consideration that the Lord had inclosed part and injoyed that in severall the Free-holders and Tenants of the Mannor which have Common over all the Residue and exclude the Lord and this shall be good by prescription and it is adjourned see 15 Ed. 2. Fitzherbert Prescription 51. And afterwards in Trinity Tearme 1612. 10. Jacobi this case was moved againe and all the Justices agreed as this Pleading is Judgment shall be given for the Plaintiff and they moved the parties to replead Pasch 9. Jacobi in the Common Bench. Portington against Rogers Trin. 8. Jacobi Rot. 3823. MARY Portington brought a Trespasse against Robert Rogers and others Defendants for the breaking of her house and Close upon not guilty pleaded and speciall Verdict found the Case was this A man had Issue three Daughters and made his Will in writing and by that devised certain Land to the youngest Daughter in taile the Remainder to the Eldest Daughter in taile the Remainder to the middlemost daughter in taile with Proviso that if my sayd daughters or any of them or any other Person or persons before enamed to whom any estate of Inheritance in possession or Remainder of in or to the said Lands limited or appointed by this my last Will and Testament or to the Heires before mentioned of them or any of them shall joyntly or severally by themselves or together with any other willingly apparently and advisedly conclude and agree to or for the doing or execution of any Act or Devise whereby or wherewith the said Premises so to them intailed as aforesaid or any part or parcell thereof or any estate or Remainder thereof shall or may by any way or means be discontinued aliened or put away from such person or persons and their Heires or any of them contrary to mine intent and meaning in this my Will otherwise then for a Joynture or shall willingly or advisedly commit or do any act or thing whereby the premises or any part thereof shall not or may not discend remaine or come to such persons and in such sort and order as I have before limited and appointed by this my last Will and Testament then I will limit declare and appoint that then my said Daughter or Daughters or other the said person or persons before named and every of them so concluding and agreeing to or for the doing or execution of any such act or Devise as is aforesaid shall immediately from and after such concluding and agreeing loose and forfeit and be utterly barred and excluded of and from all and every such Estate Remainder and benefit as shee or they or any of them should might or ought justly to have claime Challenge and demand of in or to so much thereof as such conclusion or agreement shall extend unto or concern in such manner and forme as if she or they or any of them had not been named nor mentioned in this my last Will and Testament and that the Estate of such person c. shall cease and determine c. And after that the youngest Daughter tooke a Husband and then shee and her Husband concluded and agreed to suffer a Recovery and so to barr the Remainder and upon that the Plaintiff being the eldest Daughter entred and upon the Entry brought this Action And Harris Serjeant argued for the Defendant that this shall be a condion and not a limitation and he said that Mews and Scholiasticas Case is not adjudged against him see the Commentaries 412. b. And it shall be taken strictly for that that it comes in Defesans of the Estate and then admitting it is a condition it is not broken for this conclusion and agreement is only the agreement of the Husband and though that the Wife be joyned yet be that for her benefit or prejudice that shall be intended only the Act of the Husband and he only shall be charged as in the 48 Ed. 3 18. Husband and Wife joyne in Contract and the Husband only brings Action upon that and 45 Ed. 3. 11. Husband and Wife joyne in Covenant and the Action was brought against them both and it was abated for that shall charge the Husband only 24 Ed. 3. 38 The Husband and the Wife joyne in an Action upon the Statute of Laborers and the Writ abated and so in cases of Free-hold as 15 Ed. 4. 29. b. The Husband and the Wife being Tenants for life joyne in praying aid of a stranger and this shall be no forfeiture of the Estate of the Wife and 48 Ed. 3. 12. a. Statute Merchant was made to the husband and Wife and they joyned in Defeasans that shall not be Defeasans of the Wife and 28 H. 8. Dyer 6. The Husband of the Wife Executrix aliens the Tearme which was let to the Testator upon condition that he or his Executors should not alien and by Baldwin by the alienation of the Husband the Condition was not broken for it was out of the words so here the agreement and conclusion being made by Husband and Wife shall be intended the Act of the Husband only and so out of the Words and by consequence out of the intent of the Condition and shall be taken strictly but he seemed that the Condition shall be void for the Words conclude and agree are words uncertain for what
so these words of the Writ are not answered and so no Tenant is returned at all And it is not like to the Case in 2 H. 4. for there the Return was according to the Exigent of the Writ but here it is not so And to the first matter he intended and agreed that an Executor of an Executor may sue execution had by the first Executor insomuch that hee comes in in privity But he said that so it is not in this case and that there is no difference betwixt this case and the case cyted in Shelleys case that is that Administrator of Administrator shall not sue execution insomuch that he comes in peramount Administrator and accords with this Case 2 Eliz. in the Lord Dyer If two Joynt-Tenants are and one makes a Lease for years rendring Rent and dyes the Survivor shall not have the Rent insomuch that hee commeth in peramount him and to the other he intended that the speciall non-tenure is a good plea as well in Scire facias to have execution of damages as of Free-hold as in 24 Edw. 3. 31. and 5 H. 5. 1. and 9. H. 5. 11. It is resolved that in Scire facias speciall non-tenure is a good Plea and the books of 8 H. 6. 31. cyted before there is Joynt-tenancy pleaded to one part and speciall non-tenure to the other part by Lease for years and the question is if it might be pleaded a part And in 8 Edw. 4. 14. Is Scire facias upon Recovery by Writ of Right Patent in base Court and that the Defendant cannot plead release of the Lessor and so the joyning of the Mise may be forfeiture of his Estate And he said that it was adjudged in 16 Edw. 3. Scire facias 5. that scire facias to have execution of a Fyne shall not be sued against a Lessee for years but against him which hath the Free-hold but where Debt or Damages are to be recovered there it may be sued against him which hath only Lease for years insomuch that the possession is to be charged and so he concluded and prayed Judgement for the Defendants and it is adjourned Michaelmas 1611. 9. Jacobi in the Common Bench. Crogate against Morris THe case was this Copy-holder prescribes to have common in the Waste of the Lord and brings action of Trespasse against a stranger for his Beasts depasturing upon the Common there and Harris Serjeant argued that this action is not maintainable for two causes First insomuch that he is a Commoner for as it is said by Brook Justice 12. H. 8. 2. a. Commoner cannot have an action of Trespasse for the Common is not Common but after the Commoner hath taken that and then before that he hath taken that he hath no wrong nor damage but the damage is to the Tenant of the Land As if a Lessee for years be outed and he in reversion recovers in Assise hee shall not have damage insomuch that the damage was made to the Lessee and the 22 Assis 48. 15 H. 7. i 2. b. agreed that Commoner cannot maintain action of Trespas nor no other but the owner of the Soil but 13 H. 8. 15. by Norwich 15 H. 7. 6. 5 H. 7. 2. 24 Edw. 3. 42. Commoner may distrain and avow for doing damage 2. He intended that this action is not maintainable insomuch that every other Commoner may also have the action of Trespasse for if it be wrong to one it is wrong to every one of them and so the stranger shall be infinitely punished as in Williams Case 5 Coke 72. b. where it was adjudged an action of the Case doth not lye for the Lord of the Mannor to prescribe that a Vicar ought to administer the Sacraments in his private Chappell to him his Men-servants and Tenants within the Precincts of the said Mannor and adjudged that it doth not lye insomuch that then every of his Tenants might also have action and so the Vicar shall be alwayes punished So in 27 H. 7. 27. a. A man shall not have an action upon the Case for nusance made in the high way so it is 5 Ed. 4. 2. for trenching in the high way see 33 H. 6. 26. a. accordingly and so he concluded that the action is not maintainable and prayed Judgement for the Defendant Dodridge the Kings Serjeant to the exception which hath been made by the other party that the Plaintiff ought to averr that he hath Beasts which ought to Common there and that his Beasts have lost their Common that need not to be averred but it shall be pleaded by the other party for if he have distrayned the Beasts of a stranger doing damage he need to averr no more in this action and to the other matter and the two Objections which have been made by the other part First that the Commoner hath no right to the Common till he have taken it by the mouth of his Beasts to that he said that the Commoner hath right to that before that it be taken by such mouths of his Beasts and notwithstanding that it seems by the time of Ed. 1. That Commoner cannot grant his Common till he have Seisin of that yet 12 H. 8. is otherwise and that a Commoner may have an action the name implyes for he hath Common with others and a stranger which is no Commoner cannot do wrong but this is damage to him and he cyted Bracton 430. that there are two forms of Writs 1. Cursitory Writs 2. Commanding Writs The first of those which are formed and are of course and the others such of which there is no form but are to be formed by the Masters of the Chancery according to every particular Case So that there is not any Case but that the Law affords a Writ and remedy for that as in 28 Edw. 4. 23. Action upon the Case was framed against an Officer which gave priviledge to one as his servant which was not his servant and it is not like to the Case in 11 H. 4. 47. a. where a School-master brings an action upon the Case against another for erecting of a School in the same Towne to his damage but this was damage without Injury But here the Commoner hath received wrong and damage but yet he agreed that the Commoner could not have action of Trespass why he broke his Close for that is proper for the owner of the Soile But it hath been agreed to him that he might distrain them doing damage and the reason of that is insomuch that he hath received damage and amends may be tendered unto him in recompence of his damages without any regard to other Commoners as it is agreed in 24 Edw. 3. 42. And to the Objection that if one Commoner may have action then every Commoner may have the action and so the stranger shall be infinitely punished And to that he said it is a Publique losse and private and when the publique wrong includes private damage to any man there he
to whom the private damage is done may have action And he said that the Register contains many Writs for publique wrong when that is done to private men as fol. 95. A man fixes a pale crosse a navigable River by which a Ship was cast away and the Owner maintained action of Trespasse And fol. 97. A man brought Trespasse against one which cast dung into a River by which his Medow was drowned so if the River be infected with watering Hemp or Flax he which hath fishing there may maintain action of Trespasse and 2 H. 4. 11. Action of Trespasse by one for ploughing of Land where one had a common way and so it is 13. H. 7. 17. One brings an action of Trespasse against another for erecting a Lyme Kill where many others are annoyed by that So by an assault made upon a servant the Master and servant also may have severall actions and so in the other cases many may have actions and yet this is no reason to conclude any one of them that hee shall not have his action for in truth those are rather actions upon the Case then actions of Trespass for the truth of the Case is contained in the Writ Also in this case it doth not appeare that there are any other Commoners which have Common there and for that this Objection is not to the purpose and it appears by Heisman and Crackesoods Case 4 Coke 31. That Copy-holder shall have Common by prescription in the demesnes of the Lord and so he concluded and prayed Judgment for the Plaintiff Coke cheife Justice said that it was adjudged in this Court Trinity 41 Eliz. Rot. 153. b. between Holland and Lovell where Commoner brings an action upon the Case as this Case is against a stranger which pleads not guilty and it was found by verdict for the Plaintiff and it was after adjudged for the Plaintiff for insomuch that the Plaintiff may take them damage feasant that proves that he hath wrong and this is the reason that he may distraine doing dammage And by the same reason if the Beasts are gone before his comming he may have action upon his Case for otherwise one that hath many Beasts may destroy all the Common in a night and doe great wrong and shaâ—l not be punished and it is not like to a Nusance for that is publique and may be punished in a Leet but the other is private to the Commoners and cannot be punished in another place nor course and he also cyted one Whitehands case to be adjudged where many Copy-holders prescribe to have Loppings and Toppings of Pollards and Husbands growing upon the Waste of the Lord and the Lord cuts them and one Copy-holder only brings his action upon the Case and adjudged that it was very well maintainable notwithstanding that every other Copy-holder may have the same remedy And he said also that so it was adjudged in the Kings Bench Hillary 5 Jacobi Rot. 1427. in George Englands Case And 2 Edw. 2. b. Covenant 49. If a man Covenant with 20. to make the Sea banks with A. B. and every one of them and after he doth not doe it by which the Land of two is drowned and damnified and they two may have an action of Covenant without the others Quere for it seems every one shall have an action by himselfe But Foster and Wynch Justices seemed that the Plaintiffe ought to sue in his Court that the Beasts of the stranger escaped in the Common or were put in by the Owner for it may be they were put in by the Lord which was owner of the Soile or by a stranger in which cases the Owner of the Beasts shall not be punished But Coke and Warburton seemed the contrary and that this ought to be averred and pleaded by the Defendant in excuse of the Trespasse as in action of Trespasse why he broke his Close And so it was adjourned see Gosnolds case 490. see Judgment Pasche 1612. 10. Jacobi in the Common Bench. Henry Higgins against George Biddle IN Replevin the Defendant made Conusance as Bayliff to Sir Thomas Leigh and Daine Katherine his Wife intimating that Isabel Bradburn was seised of the place where c. in their demesne as of Fee and so seised the first of June 15 H. 8. gives this to the Lord Anthony Fitzherbert and Maud his Wife and to the Heirs males of their bodies which have Issue Thomas Fitzherbert Knight John Fitzherbert and William Fitzherbert Anthony and Maud dyed and the said place where c. discended to Sir Thomas Fitzherbert as Heire to the Donees to the Intayl and the said Thomas Fitzherbert the 5. of Aprill 6 Edw. 6. of that enfeoffed Humphrey Swinnerton Ralph Cotton and Roger Baily to the use of William Fitzherbert and Elizabeth his Wife for their lives and after to the use of Sir Thomas Fitzherbert and the Heirs of his body the remainder to the use of the right Heirs of the said William Fitzherbert William Fitzherbert dyed Sir Thomas Fitzherbert disseised the said Elizabeth and the said John Fitzherbert had Issue Thomas and dyed Sir Thomas Fitzherbert dyed without Heir of his body and the said place where c. discended to the said Thomas as Cousin Heir of the said Sir Thomas and Son and Heir of the said John Fitzherbert which enters and was seised to him and to the Heirs Males of his body as in his Remitter And the said Thomas Fitzherbert 4 of Novemb. 39. Eliz. by Indenture of Bargain and Sale enrolled in the Chancery within six moneths bargained and sold the said Land to Sir William Leighton his heirs and Sir William Leighton 5 of Novemb. 43. Eliz. by Indenture enrolled within six moneths for 4000. l. bargained and sold the said land where c. to Sir Thomas Leigh and Dame Katherine as aforesaid and so avowed the taking for doing damage And the Plaintiff for Barr to the said Avowry pleads that well and true it is that the said Sir William Leighton was seised of the said place where c. in his Demesne as of Fee as it was alledged by the Defendant But further hee saith that the said Sir William Leighton so being thereof seised 1 Decemb 44 Eliz. enfeoffed the Plaintiff in fee and by force of that the Plaintiff was seised and put in his Beasts into the said place where c. without that that the said Sir William Leighton bargained and sold the said Land in which c. to the said Sir Thomas Leighton and Katherine his Wife as in the Conusance hath been alledged by the Defendant upon which the Defendants joyn Issue and it was agreed by all the Justices that notwithstanding this admission of the Parties is an Estoppell by the pleading yet as well the Plaintiffe as the Defendant were admitted to give another evidence to the Jury against their own pleading that is that Sir William Leighton was not seised and so nothing passed by the bargain and sale and also
REPORTS OF Diverse Choice CASES in LAW TAKEN By those late and most judicious Prothonotaries of the Common Pleas RICHARD BROWNLOW JOHN GOLDESBOROUGH Esq rs WITH DIRECTIONS HOW TO proceed in many Intricate Actions both Reall and Personall shewing the Nature of those Actions and the Practice in them excellently usefull for the avoyding of many Errours heretofore committed in the like Proceedings fit for all Lawyers Attorneys and Practisers of the Law Also a most Perfect and exact Table shewing Appositely the Contents of the whole Book Solon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed by Tho Roycroft for Matthew Walbancke at Grays-Inne Gate and Henry Twyford in Vine Court in the Middle Temple 1651. THE PUBLISHER TO THE READER THese Reports coming unto my hands under the Commendations of men of so much sufficiency in the knowledge of the Lawes I could doe no lesse then fear that it would prove too obvious a neglect of Common good to keepe them in the darke therefore here I present them to the World to the end that all men may take that benefit by them now being in Print which some few only have hitherto injoyed by private Copies And indeed I thinke I shall put it beyond dispute when I name the two worthy and late famous Prothonotaries M r. Brownlow M r. Goldesborough whose Observations they were that they will both profit and delight the Reader since there are contained under these heads viz. Actions upon the Case Covenant Account Assise Audita querela Debt upon almost all occasions Dower Ejectment Formedon Partition Quare Impedit Replevin Trespas Wast Many excellent conclusions as well of Law as of the manner of pleadings Demurrers Exceptions Essoins Errors and the qualities of many VVrits with other various and profitable Learning in which may be found the number of the Roll for so many as have had the luck of a full debate and definitive sentence And for the rest though there is no Judgment in them so as to determine what the Law is yet at least they will afford a very considerable compensation for the Readers pains by opening unto him such matters as are apt for Argumentation and may acquaint his Genius with the manner of Forensall Disputations from which benefit to detain you any longer will deserve a Censure therefore I remit you to the matter it self which I am confident the Printers faults excused will easily effect its owne praise beyond my Ability SPECIALL OBSERVATIONS AND RESOLUTIONS OF THE JUDGES OF THE COMMON PLEAS Vpon severall Actions upon the Case there depending and adjudged PEdley versus Langley Hill 14. Ja. rotulo the Plaintiff brought his Action for these words You are a Bastard for your Father and Mother were never married The Defendant pleads that the Plaintiff was a Bastard and justifies the words laid and it was held by the Court that this Issue should be tried by the Countrey and not by the Bishop as in other Cases SMayles one of the Attourneys c. versus Smith for these words he meaning the Plaintiff took corruptly five Marks of Brian Turnor being against his own Client for putting off and delaying an Assize against him and after a Verdict exception was taken against the Declaration for that the Plaintiff did not expresly alledge that at the time of speaking the words He was an Attourney but layd it that he had been an Attourney The Court held the words would bear Action MAle versus Ket Hill 14. Jac. rotulo 1506. for these words William Male did steal my Corn out of my Barn Judgement for the Plaintiff The Court held that an Action would lie for these words You are a Thief and have stollen a Cock which was but Petty Larceny COwte versus Gilbert Hill 10. Jac. rotulo 3176. Thou art a Thief and hast stollen a Tree Judgement that the Plaintiff should take nothing by his Writ The like Thou art a Thief and hast stollen my Maiden-head no Action HArding versus Bulman Hill 15. Jac. The Plaintiff declares that in such a Term he had brought an Action of Case against B. for scandalous words to which he pleaded not guilty and at that Triall gave in Evidence to the Jury to take away the Plaintiffe Credit and Reputation that the Plaintiff was a common Lyar and recorded in the Star-chamber for a common Lyar by reason whereof the Jury gave the Plaintiff but very small Damage to the Plaintiffs Damage of c. The Defendant pleads not guilty And it was moved in Arrest of Judgement that the Action would not lie And of that opinion the Court seemed to be BRidges one of the Attourneys versus Playdell for words You meaning the Plaintiff have caused this Boy meaning A. W. then present to perjure himself Judgement for the Plaintiff STone versus Roberts Mich. 15. Jac. rotulo 635. for these words Thou art a Witch and an Inchanter for thou hast bewitched Stronges Children no Action lies but if thou say Thou art a Witch and hast bewitched Children and that they are wasted and destroyed they are actionable SCarlet versus Stile Trin. 14. Jac. rotulo 541. for these words Thou didst steal a Sack and Curricomb and I will make thee produce it and thou didst steal my Fathers Wood and didst give it to a Whore The Defendant justifies that such a day the Goods were stollen and there was a common fame and report that the Defendant had stollen them and upon that report the Plaintiff did vehemently suspect that the Defendant had stollen them and thereof did inform a Justice of the Peace and complaining of the Defendant to the Justice and informing him of the Premises did speak the words before mentioned If a Felony be committed it is good cause to arrest one for Felony but not to speak words to defame one If there be two Issues in severall Counties in Trover and one is tried and Judgement and Execution of the Costs and Damages and afterwards the other Issue is tried and Costs thereupon the last is erronious as to the Costs Broccas Case Note Trover was brought against Husband and Wife for Goods which came to the hands of Husband and Wife the Conversion was alleadged to be by the Husband alone for the Wife could not convert And the Court held that the Action would not lie against the Wife MOse versus Canham Mich. 6. Jac. rotulo 508. The Plaintiff declares that one Levet was indebted in such a summ and for the payment thereof had delivered to the Plaintiff divers Goods of the said Levets the Defendant in consideration that the Plaintiff would deliver to the Defendant the said Goods promises to pay the Plaintiff the money due from Levet and exception was taken to the Declaration for that the certainty of the Goods were not expressed and for that the consideration was but collateral Another Exception for that the Plaintiff might grant the Goods over but the Court held the contrary And Judgement for the
him according to his promise The Defendant pleads Non assumpsit And a Verdict for the Plaintiff and moved in Arrest of Judgement for that the Plaintiff at the time of the Contract was an Infant and that he could not perform his promise by reason of his Infancy and therefore the promise void and another Exception for that it was not alleadged in what sum the Plaintiff and his Surety offered to be bound and Judgement was that the Plaintiff Nihil capiat per breve JAcob versus Songate Trin. 9. Jac. rotulo 2776. An Action upon the case brought for this word Perjured The Defendant justifies that it was found by Verdict that the Plaintiff was perjured but no Judgement entred upon that Verdict And whether the Plea were good being there was no Judgement was the Question and it was adjudged no Bar because no Judgement was given in the first-Action and so Judgement entred for the Plaintiff CRuttall versus Hosener Pasch 16. Iac rotulo Action of the case for these words He meaning the Plaintiff hath caught the French Pox and brought them home to his Wife And Judgement for the Plaintiff THornton versus Iepson The Plaintiff being a Currier brought an Action upon the case for these words He is a common Barretor but the words would not lie for a man of that Profession but would lie for a Justice of Peace or Lawyer IReland versus Smith Hill 9. Iac. rotulo Action upon the case brought for these words You Norgate take part against me with Ireland who is a Papist and hath gotten a Pardon from the Pope and can help thee to one if thou wilt The Plaintiff laid a communication between the Defendant and Norgate and alleadges himself of the age of 40. years and not above because it might appear to the Court that he was born within Queen Elizabeths Reign The Court held the Action would not lie as it was adjudged in Halls case and for this word Papist no Action will lie If I deliver my Goods to you to keep and I request them and you deny the Delivery of them now an Action of Trover will lie otherwise it is without a Deniall if I distrain Cattle I must not use them WArter versus Freeman Mich. 15. Iac. rotulo 1941. Action upon the case brought for that the Defendant sued out a Fieri facias upon a Judgement which he had against the Plaintiff upon which Judgement the Defendant had before sued out a Fieri facias and the Sheriff of Oxford had upon the first Fieri facias returned that he had levied the Debt and Damages and that they remained in his hands for want of Buyers and the Defendant knowing that the Sheriff had levied the Debt and Damages and intending to charge him again prosecuted another Fieri facias and that the Sheriff had again levied the said Debt and Damages and hath paid the Debt and Damages to the Plaintiff to wit at Westminster in Com. Middlesex where the Action was brought and Judgement after Debate was given for the Plaintiff though the Defendant alleadged that the Fieri facias was an Act in Law and so no cause of Action against him PArkhurst versus Powell vic Denbigh Mich. 15. Iac. rotulo An Action of the case for a false Return of a Capias utlagat and declares that he prosecuted a Capias utlagat directed to the Sheriff of Denbigh where the Defendant inhabited and delivered the said Writ to the Sheriff to be executed and the Defendant being then in the company of the Sheriff and might safely have arrested him did not but suffered him to escape and returned that he was not to be found and upon Not guilty pleaded it was tried in the County of Middlesex where the Action was brought and moved in Arrest of Judgement that the Triall ought to be in Denbigh because the not arresting was the principal matter but because the Action was grounded upon double matter the Plaintiff had his Election to bring his Action either in the County of Denbigh or Middlesex by the whole Court BLand versus Edmonds Pasch 16. Jac. rotulo 444. Action upon the Case brought for these Words Videlicet George Bland is a troublesome Fellow and he did combine with thee to trouble the Countrey and I hope to see thee at the next Sessions indicted for Barratry or for sheep-stealing as George Bland was at the last Sessions for Bland was indicted the last Sessions for sheep-stealing And it was held by the whole Court that those Words would not bear an Action the Plaintiff layed the Words to be spoken to one Jo. Eagle and the Declaration was held naught and insufficient because it was not averred that the Plaintiff was not indicted at the Sessions BRadshaw versus Walker Hill 16. Jac. rotulo Action upon the case brought for these words Videlicet Thou art a filching Fellow and didst filch from A. B. 4. l. And Judgement that the Plaintiff should take nothing by his Writ for it shall not be intended that he stole the money ADams versus Fleming Hill 16. Jac. rotulo 890. Action of the case brought for these words Videlicet He hath forsworn himself before the Councel of the Marches meaning the Councel of the Marches of Wales in the Suit I had against him there and I will sue him for Perjury there And after Verdict for the Plaintiff moved in Arrest of Judgement that the words were not actionable for their uncertainty because the Court could not take notice that they had authority to hold plea in matters of record Judgement for the Plaintiff for these words Thou art a false forsworn Knave for thou didst take a false Oath before a Judge of Assise to hang a man GOre versus Colthorpe Trin. 5. Jac. rotulo The Declaration was in consideration that the Plaintiff would give credit to E. C. then servant to the Defendant for any thing the said E. should deal for to the use of the Defendant with the Plaintiff promised that he would see the Plaintiff contented that which the said E. should deal for with the Plaintiff for the use of the Defendant any way when the said Defendant thereof after it should become due should be requested and a special Verdict by which it was found that the Defendant promised to see the Plaintiff contented that which the above named E. C. should deal with the Plaintiff for the use of the said Defendant any way The Judgement of the Court was that the Verdict did not maintain the Declaration because for collaterall matters which are not Duties a Request is material and are not like a Duty as for Debt which is due and no Day of payment expressed that shall be alleadged to be when he shall be thereunto requested generally For if I sell my Horse for ten pounds and no Day of payment that shall be alleadged in the Count Cum inde requisitus esset And one case of Peters was cited which was
Fawden an Attorney of the Common Pleas and he pleads in Barr an Outlary against the Administrator and adjudged no Plea MIch 4. Ed. 4. rotulo 144. An Action of Debt was brought against J. R. de W. in Com. L. Chapman the Defendant appeared by his Attorney and offered to wage his Law and essoyned and at that Day the Plaintiff appeared and the Defendant being solemnly required one J. R. came to answer the Plaintiff as Defendant in that Action in his proper person and offered to wage his Law the Plaintiff said that J. R. now appearing to wage his Law ought not to be admitted because the said J. R. is not that person which the Plaintiff prosecutes because this I. R. appearing is I. R. de W. in Com. L. Jun. Chapman and he who the Plaintiff prosecutes is I. R. de W. in Com. L. Sen. Chapman both of them at the purchasing the Plaintiffs Writ living at W. and that he agreed with the Defendant so to do therefore because I. R. de c. hath not appeared to wage his Law prayes Judgement the Defendant confesses such matter and sayes that he beleiving that the Writ was prosecuted against him appeared by his Attorney and offered to wage his Law and prayes to be discharged of the Debt and the other I. R. being exacted appeared not and the Court would advise but no Judgement for the Plaintiff HIll 26. Eliz. rotulo 420. The Lessor makes a Lease by Indenture for years and the Lessee grants over his whole Terme and the Lessor grants over the Reversion and it was adjudged that the Grantee of the Reversion should have an Action of Debt for the Arrears of Rent against the Assignee of the terme and not against the first Lessee HIll 43. Eliz. Pasch 41. Eliz. rotulo 425. An Action of Debt brought against an Executor in the Debet detinet for Rent due in the time of the Executor upon a Lease made to the Testator upon a Judgement given in the upper Bench and that Judgement was reversed in the Exchequer because it was not in the Detinet alone but afterwards in the upper Bench. Int. dominum Rich. Frank Administrator for Arrears due after the Death of the Intestate it was adjudged good in the Debet detinet and also in the Common Pleas Trin. 11. Jac. rotulo 2013. MIch 30. 31. Eliz. rotulo 907. An Action of Debt brought to which the Defendant pleads an Outlary against the Plaintiff in its force the Plaintiff replies the general Pardon granted by Parliament the Defendant demurrs and Judgement that he should answer over MIch 40. 41. Eliz. Ralph Rogers brought an Action of Debt upon an Obligation of 400. l. and Judgement was entred by the Clerk upon a Nichil dic that the said Roger should recover c. and for that Default the Defendant brought his Writ of Error to reverse the Judgement given for Ralph and when the Record was certified the Judges of the then Kings Bench would not proceed And afterwards the Judges of the Common Pleas upon a motion and before another Writ of Error brought amended the Mistake of the Clerk And Justice Walmsley would have committed Keale the Clerk to the Fleet for his carelesness but afterwards the Amendment was withdrawn by the Court and upon further advice the Roll made as it was before An Action of Debt was brought upon a single Bill for Payment of Money upon Demand and the Plaintiff declares generally that he often had requested c. and Serjeant Harris demurres to the Declaration and the opinion of the Court was that he ought to plead yet if the Defendant had demanded Oyer of the Bill and upon that have demurred it had been a good Demurrer because one special Demand was in the Bill and no special Demand alleadged in the Count. MIch 3. Iac. Burnell versus Bowes Action of Debt brought upon a Bond and the Plaintiff in the Imparlance Roll had counted upon a Bond made the tenth of March and an Imparlance thereupon untill the next Terme and in the next Terme he declared as of a Bond made the tenth of May and the Defendant pleaded per Dures and it was entred of Record and the next Terme after Entry thereof the Plaintiff moved that that Mistake might be amended and at first it was denied to be amended because the Defendant had pleaded to it and by that Amendment his Plea should be altered as if he had pleaded that it was not his Deed and the cause of his pleading that Plea was the the Mistake and if that Mistake should be amended he would be trised and overthrown and upon the first motion it was denied to be amended but afterwards granted to be amended by the whole Court for the Imparlance was entred Hillar first of James and the Issue was Pasch second of James but the Defendant was admitted to plead a new at his pleasure MIch 3. Jac. rotulo 2575. Fitch versus Bissie An Action of Debt brought upon an Obligation with a Condition to pay Money yearly according to the forme and effect of the Indenture made between the Plaintiff and Defendant the Defendant pleads that there was not any such Indenture made between the Plaintiff and Defendant as is in the Condition supposed and the Plaintiff demurrs upon that Plea for that the Defendant is estopped to plead that Plea KIng and his Wife Executrix of J. Wright Plaintiffs brought a Scire facias after the said Executrix came to full Age against Death and his Wife Administratrix of W. D. to have Execution of a Judgement had by J. D. and H. E. Administrators during the minority of the Executrix upon a Bond entred into to the Testator and whether a Scire facias lay by the Executrix or no was the Question and by the better opinion of the Court it did not lie MAyor and Burgesses of Linn Regis in Norfolk Mich. 10. Jac. rotulo 2413. brought an Action of Debt upon a Bond against one Pain and it was Ad respondendum Majori Burgensibus de Linn Regis in Comitatu Norfolciae Pain pleads that it was not his Deed and a special Verdict was found that the Mayor and Burgesses were incorporated by the name of Majores Burgenses Burgi de Linn non per aliud And whether the omission of this word Burgi should barr the Plaintiffs was the Question and Judgement was given by Cook Warburton and Nichols for the Plaintiff for Cook said that if the essential part of the Corporation was named it was sufficient and in this case the Mayor and Burgesses was one essential part and Linn Regis is another essential part and those two were duly expressed and sufficient to maintain the Action and Cook said that those words Et non per aliud shall be intended to be Non per aliud sensum non literae and of the same opinion were the other Judges there NIchols versus Grimwin Mich.
Habeas Corpora returned by the Sheriff and these words omitted Videlicet Quilibet Iur. per se seperatim Attach est per Pleg I. D. R. R. exitus eor cujuslibet x. s. R. W. M. L. Vic. and it was amended by the Court. ANdrews versus Delahay an Attorney of the Common Pleas Hill 14. Jac. rotulo 3057. A Bill filed against the Defendant as an Attorney upon two Bills obligatory for payment of Money and one of the Bills was not payable and due at the time of exhibiting the Bill and the Defendant pleads to Issue and the Cause received a Triall and a Verdict for the Plaintiff and afterwards the Defendant in Arrest of Judgement moved that one of the Bills were not payable at the time of exhibiting the Bill against him and thereupon the Plaintiff remitted his Damages and had Judgement for the Bill that was due HArris versus Cotton As long as the Vicar occupies his Gleab-land in his own hands he shall pay no Tithes but if he demise it to another the Lessee shall pay Tithes to the Parson that is impropriate If the Vicar sow the Land and die and his Executor takes away the Corn and doth not set forth his Tithe and the Parson brought an Action of Debt upon the Statute of 2 Ed. 6. and the Court seemed to incline that it would lie DArrell versus Andrew Mich. 14. Iaeobi rotulo 2327. An Action of Debt was brought in London for Rent reserved upon a Demise of Lands in Cawson in the Parish of D. in the County of War and of one capital Messuage The Defendant pleads Extinguishment of Rent because the Plaintiff had entred into one House called the Wooll-house and into one Buttry at the upper end of the Hall of the said House and in one House called the C. parcell of the Premises before demised upon the Defendants motion and had expelled the Defendant out of the Possession thereof and the Venire facias was of Cawson within the Parish of Dale and Exception taken because it was Infra Parocham but my Lord Hubbard said that where Land is laid in Dale in the Parish of Dale that the Venire facias may be made of Dale or within the Parish or of the Parish and both good HAll versus Winkfield An Action of Debt brought in London for a 100. l. and the Plaintiff declared upon a Recognisance taken at Serjeants Inn in Fleetstreet London before the Cheif Justice of the Common Pleas and afterwards inrolled in the Common Pleas at Westminster in Middlesex And the Defendant demurred to the Declaration and the Question was whether the Action should be brought in London or Mid. And note the Recognisance as soon as it is acknowledged is a Record and shal relate to the time of the taking to binde Serjeant Hutton said that a Scire facias may issue upon a Recognisance taken out of Court into any County and none is bound to sue Scire facias where the Recognisance is taken but after it is inrolled in the Court an Action of Debt shall be brought in the County of Middlesex At the Common Law the Execution was by Levari facias and after the Year an Action of Debt it is not a Recognisance consummate untill it be inrolled in the Court yet it taketh its life by the first acknowledgement for if you have an Action of Debt or Trespass in a forrain Shire when you have recovered Debt or Trespass your Debt or Trespass is now altered and made new My Lord Hubbard held that if I bring Debt in Norfolk and I have Judgement and bring an Action of Debt upon that Judgement it must be brought in Middlesex and so in Trespass The Inrolment of the Recognisance is but a fortification of the Recognisance MOrtimer versus Freeman Hill 9. Iacobi rotulo 2001. An Action of Debt brought for not setting out of Tithes to which the Defendant pleads Nil debet per patriam and to prove that the Plaintiff was not Parson he shewed a Deprivation of the Plaintiff for Drunkenness by the high Commissioners and the Court held for such a common Fault after Admonition the high Commissioners might deprive a Minister but because this Crime of Drunkenness was committed before the general Pardon and that the Sentence was given after the Pardon the Sentence was void For Wooll or Lamb no Action lieth upon the Statute for they are not predial Tithes nor for small Tithes If an Action of Debt be brought upon two Contracts and both found for the Plaintiff in that Case the Jury may tax Damages intire but the safer and better way is to sever the Damages for it may come to pass that an Action will not lie for one of the two and if it will not lie then your labour and charge is lost An Action of Debt brought for 300. l. upon an Obligation The Defendant after a general Imparlance demands Oyer of the Bond and pleads specially that it was but for 30. l. and it was not allowed after a general Imparlance And the Defendant pleaded that it was not his Deed which was the proper Plea in that Case PReston versus Dawson Pasch 11. Jacobi rotulo 2310. An Action of Debt brought upon a Bond for performance of Covenants in an Indenture in which Indenture was this Covenant following that the Vendor should make further Assurance at the cost and charges in the Law of the Purchasor and for Breach it was alleadged that a Note of a Fine was devised and ingrossed in Parchment and delivered to the Vendee to acknowledge the Fine at the Assises which he refused to do and the Plaintiffs Breach was demurred upon because he did not offer Costs to the Vendee and the Court held it to be idle GLyver versus Lease Trin. 11. Jac. rotulo 734. An Action of Debt brought upon a single Bill The Defendant pleads that he did infeoff the Plaintiff of Lands in satisfaction of that Debt and the Plaintiff demurred upon it and upon reading the Record ruled to be a naughty Plea to a single Bill otherwise it had been upon a Bond with a Condition to pay Money WIlliamson versus Barnsley Trin. 12. Jac. rotulo 1291. An Action of Debt brought upon an Obligation with a Condition to perform Articles that he before Easter Terme next following at the Request of the Plaintiff should surrender and yeild up to the Plaintiff his Letters Patents of the Stewardship of Bromsgrove to the intent that he might renew the said Letters Patents in his own name and it was objected at Barr that the Office of a Steward of a Court Leet or Court Baron was within the Statute of 5 E. 6. made against buying of Offices that were for Ministration and so Winch held the Stewardship of a Leet to be within the Statute and so was adjudged in Grays Case but the Question was whether the agreement to surrender be within the Statute or no the words
by Obligation and that he retained the Money in his hands to satisfie the Debt The Plaintiff replies that the Money was not due and payable to him at the time of the Intestates Death and that he took Administration after the Day of Payment and if the Administrator had pleased he might have took Administration before the Day of Payment and the Court held the Defendants Plea good but he shall not have the Forfeiture CArrell versus Paske Trin. 13. Jac. rotulo 1018. Debt brought upon an Obligation made at C. in the County of Surry The Defendant pleads the Priviledge of Cambridge granted to them by the Queen Eliz. for Scholars Bachelours Masters and their Servants upon Contract made within the University and shews the Bond was made in Cambridge and that he was a Servant of the Scholars to wit Bailiff of Kings Colledge in that University and inhabiting within the Town of Cambridge and Precincts of that University and therefore a priviledged Person of the same and upon reading the Record it seemed that the Defendant being a Bailiff of the Colledge is not capable of the said Priviledge PReist versus Cee Trin. 12. Jacobi rotulo 2197. An Action of Debt brought upon a Bill bearing Date 17 Novomber 1604. by which Bill the Defendant did acknowledge himself to owe the Plaintiff 10. l. to be paid to the Plaintiff at two Payments to wit 5. l. to be paid upon the 19. of November then next following and other 5. l. to be paid upon the 10. Day of December then next following The Defendant pleads it was not his Deed. The Jury finde it specially that the Defendant the 17. of November 1604. sealed and delivered to the Plaintiff one Bill obligatory shewed to the Jury bearing Date the Day and Year above and finde the Bill in haec verba Be it known c. to be paid at two Payments that is to say 5. l. to be paid the 19. of November which is the present of this Moneth and the other 5. l. on the 10. of December The Question was whether the Bill maintain the Count for the first Payment and adjudged it did RAwdon versus Turton Trin. 13. Jac. 1011. An Action of Debt brought upon a Bond for Payment of Money such a Day The Defendant pleads that he the same Day made an Obligation for the Payment of the said Money another Day which the Plaintiff accepted for the Money and Issue taken thereupon and tried for the Defendant and after the Verdict the Plaintiff moved the Court to have Judgement though the Verdict passed against him because the Plea was insufficient and that he confessed the Debt but the Court would not grant it The like Mich. 6. Jac. rotulo 1061. And the like Hill 12. Jac. CArter versus Freeman Mich. 13. Jac. An Action of Debt brought upon a Bond with a Condition that the Defendant should appear before the King at a certain Day Videlicet Die Jovis post Octobras Martini and upon a Nul tiel Record pleaded the Defendant brought his Record of Appearance Lunae post xvam Martini and this was held by the whole Court an Appearance at the Day in the Condition by the whole Court GRubham versus Thornborough Hill 12. Jac. rotulo 1773. An Action of Debt brought for Rent and for a Nomine penae the Rent due 14 November Anno 9. and no name alleadged for the Nomine penae therefore the Action would not lie for the Nomine penae but it would for Rent PAsch 44. Eliz. Elliot versus Golding An Action of Debt brought and Judgement given for the Plaintiff and a space was left in the Roll for the Costs of the Judgement and after the Year and a Day a Scire facias was brought to revive the Judgement and in the Scire facias the Costs are put in and so Judgement by Default and afterwards a Writ of Error brought and the Error was assigned because there were no Costs put into the principal Roll and afterwards the Record was removed the Count was moved that Costs might be put into the Roll but it was denied upon the first motion and afterwards Pasch 13. Jac. it was denied by the whole Court BOnd versus Green Administrator An Action of Debt brought against him as Administrator he pleads divers Judgements amounting to 670. l. and the Assignement of 100. l. Debt to the King by Deed inrolled and he pleaded that he retained his Debt in his hands and he might have given this in Evidence or pleaded it at the Liberty of the Defendant COoper versus Bacon Action of Debt brought upon the Statute of E. 6. for Tithes and the Plaintiff declares that one was seised of the Rectory of Elveley alias Kirkley in Kingston upon Hull in his Demesne as of Fee and being so seised such a Day and such a Day at Elveley alias Kirkley did demise to the Plaintiff the said Rectory with the Appurtenances to have and to hold c. for years and that by vertue thereof he hath been and is thereof possessed and that the Defendant such a Day and before and alwayes afterwards hitherto had held and occupied 30. Acres of Land in Swandland in Kingston in a place called T. and that the Tithes did belong to him The Defendant pleads Nil debet per patriam and after a Verdict it was alleadged in Arrest of Judgement that the Issue was mis-tried because the Venire facias was of Elveley alias Kirkley and it should have been of Swandland where the Tithes grew CHapman versus Pescod Trin. 11. Jac. rotulo 2106. An Action of Debt brought upon an Obligation with a Condition to give and grant to him his Heirs and Assignes The Defendant pleads that he hath been ready to give and grant and adjudged naught for he must plead that he did it otherwise it had been if the words had been as Councel should devise MAncester versus Draper Hill 10. Jac. rotulo 2613. An Action of Debt brought upon a Bond with a Condition to pay Money if C. R. shall be then living and shall before the same 20. Day of O. by due form and course in Law perfect levy and knowledge a Fine and a Recovery before his Majesties Justices of his Highness Court of Common Pleas of and in certain Houses and Tenements with the Appurtenances which the said Draper lately had and purchased of the said C. R. the Defendant pleads that C. R. was living and did not levy c. and a Demurrer and the Question was whether Draper or Ro. should levy the Fine and held that Draper should levy the Fine BAker versus Pain Hill 10. Jac. rotulo 3139. An Action of Debt brought upon a Bond to pay Rent and perform all the Covenants Grants Payments and Conditions contained in a pair of Indentures and the Defendant pleads the Indenture and performance thereof The Plaintiff assignes the Breach that the Defendant had not paid the Money The
Defendant replies that the Plaintiff had entred into part of the Premises the Day before the Day of Payment and so at Issue upon that and Exception was taken because the Plaintiff had alledged no Demand to be made and the Court held that was implied by the Issue and that it was not necessary FRyer Administrator of Mary Costiden of the Goods not administred by Mary Fryer Executrix of the said M. C. versus Jacobum Gildiich Executor of N. Pope Hill 11. Jac. rotulo 1990. The case was this two were bound to one and the Obligee makes the Wife of one of the Obligers his Executrix and one of the Obligers makes the same Woman Executrix and she dies and the Plaintiff takes Administration of the Goods of the Woman not administred and Judgement was given for the Defendant by the whole Court If an Executor hath a Lease and purchaseth the Fee-simple the Lease is gone but it shall be Assets in the Executors hands if a persnal thing be once gone it is extinct for ever If the Husband had survived the Wife he should be charged HArcock Executor of Harcock versus Wrenham Administrator of Wrenham Hill 11. Jac. rotulo 1963. A Scire facias brought to revive a Judgement had against the Intestate and the Defendant pleads Plene administravit which was held a naughty Plea by the whole Court for he cannot pay so much as Funerals before he pay the Judgement and therefore that general fully administred is naught The Jury found that the Intestate in trust conveyed one Lease to Fisher and that Fisher promised upon the Payment of 300. l. to re-assure the Interest to Wrenham and after his Death the Administrator the Defendant preferred a Bill in the Chancery as Administrator against Fisher and that the Chancery ordered that Fisher should pay the Defendant for his Interest in the Lease more then the summ received the summ of 1060. l. which was paid the Defendant accordingly and whether that should be Assets was the Question and it was held to be Assets If an Executor make gain of the Testators Money that gain shall be Assets the Doubt in this case was because this was but in Use and now whether the Court shall take notice of this Use they shall being found by the Jury Judgements shall be paid before Statutes or Recognances and Judgement was given for the Plaintiff and although in this case the Barr of generally administred be naught yet an Issue taken thereupon and tried shall not arrest the Judgement for the Plaintiff PEase and Stilman Executors Hanchet against E. Meade Mich. 11. Jac. rotulo 945. An Action of Debt brought upon an Obligation with a Condition if Meade his Executors Administrators or Assignes or any of them shall pay 20. l. within the Porch of the Parish Church of R. unto such person or persons as the said Hanchet shall by her last Will and Testament in writing limit nominate or appoint the same to be made in manner c. The Defendant pleads that the said Hanchet by her last Will and Testament in writing hath not nominated limited or appointed to what person or persons the said 20. l. should be paid The Plaintiff replies and sues that the Testator made him Executor and died and that he took upon him the burden of the Will and that the Defendant did not pay the Executor the Money and a Demurrer thereupon And if it had been to pay to her Assignee that she should name the Executor should have it such things as go by way of Executorship shall be to the Executor without nomination or appointment STannard versus Baxster Trin. 9. Jac. rotulo 1123. An Action of Debt brought for Damages recovered in an Assise of Nuzans for stopping the way before special Commissioners The Defendant pleads no such Record and the Record was delivered into the Court by the special Commissioners TRin. 8. Jac. rotulo An Action of Debt brought upon a Bond with a Condition for performance of Covenants of an Indenture The Defendant confesses the Bond and that after the making the Bond and before the purchasing the Plaintiffs Writ the Indenture by the consent and assent of Plaintiff and Defendant was cancelled and the said Plaintiff cancelled the said Indenture and it was held a naughty Plea by the said Court for it did appear but that the Bond might be forfeited For he ought to have pleaded performance of Covenants untill such a Day which Day the Indenture was cancelled BRook versus Smith Hill 9. Jacobi rotulo 829. Two Tenements in Common make a Lease and reserve a Rent and Covenant that neither should release and one of them releaseth his part this is a Breach for that in Debt they both should joyn and now by the Release the Action is gone LAny versus Aldred and another Executor Trin. 10. Jac. vel Pasch 9. Jac. rotulo 504. An Action of Debt brought against them as Executors one pleads that he was Administrator and that the Administration was committed to him by the Bishop and pleads a Recovery against him as Administrator and that he had fully administred and had no Assets to satisfie the Judgement and the other Executor acknowledged the Action and the Plea was held a good Plea but it was said the Defendant might have defeated the Action which was brought against him as Executor and therefore they would infer that it was no good Plea but it was a good Plea and it was held by the chief Justice that if an Executor of his own wrong be sued with a rightfull Executor in one Writ the Executor of his own wrong shall not by his Plea prejudice the rightfull Executor MArsh versus Curtis Hill 38. Eliz. rotulo 132. An Action of Debt brought upon an Obligation for performance of Covenants in a Lease upon which Rent is reserved and the Condition was that if the Rent should be behinde then lawfull to re-enter and the Rent was behinde and before re-entry the Rent was accepted The Question was whether he may enter for the Condition broken after the acceptance of the Rent Sir Edward Cook was of opinion that by the acceptance of the Rent he did confirm the Estate but if a Bond be entred into to perform Covenants in a Lease whereupon Rent is reserved and a Fine to be paid with a Condition of re-entry for not paying the Rent or Fine and if the Rent be received and the Fine not paid the acceptance of the Rent doth not take away the Condition for not paying the Fine R. Milton versus R. Pearsey Trin. 10. Iacobi rotulo 445. An Action of Debt brought and in the Venire facias the Defendants name was mistaken for the Venire was to impannell a Jury between R. Milton Plaintiff and I. Pearsey Defendant in a Plea of Debt and the Court held the Venire as none and a new Triall awarded and the like Judgement was given Trin. 7. Iacobi rotulo 787.
that if it had been by Writ he must have shewed it but need not it being by Plaint if the truth appear in that and if a man bring his Action as Assignee he need not shew it in his Plaint if the truth appear in the Declaration but it is otherwise in an Original and a Plaintiffe in Kings Bench as an originall but not in all things and if the Plaint be incertain the Defendant in that Court shall plead in Abatement of the Plaint as to an Original in the Common Pleas and at last two Presidents were shewen one between Champion and Hill and the other between Merrick and Wright that were allowed without naming of the Plaintiff Rector in the Queritur and Judgement was given for the Plaintiff by the whole Court Note it was agreed by all the Court of Kings Bench Mich. 5. Jac. and hath many times been ruled that if a man sell his Tithes for years by word it is good but if the Parson agree that one shall have his Tithes for seven years by word it is not good by the opinion of Fleming Cheif Justice because it amounts to a Lease and he held strongly that Tithes cannot be leased for years without a Deed. COb versus Hunt Hill 5. Jac. Cob sued a Prohibition in the Common Pleas against Hunt Parson of D. in Kent and suggests a Modus demandi as to part of the Tithes demanded against him in the Spiritual Court and as to the residue suggests a Contract executed and performed between him and the Parson in satisfaction of the residue and because he proved not his Suggestion within six Moneths Hunt the Parson had a Consultation and Costs assessed by the Court to fifty shillings and Damages fifty shillings by the Statute of the 2 E. 6. they shall be doubled but in truth no Judgement was given to recover them because these words Videlicet Ideo considerat fuit qd recuperet was omitted yet Hunt thinking that all was certain and perfect brought an Action of Debt in the Common Pleas for the Costs c. and declared of all the matter above and that the Damages were assessed upon which it was adjudged that he should recover c. and that the Costs were not paid Per quod Actio c. And had a Judgement against Cob by Non sum informat and thereupon Cob brought his Writ of Error as well in the Record and Processe c. of the Prohibition as of the Record and Processe in the Action of Debt for the Costs and assigne the general Error but Yelverton assignes two Errors in special first that there was no Judgement in the Prohibition for Recovery of the Costs but onely an Assessement of Costs without any more which is not sufficient for the Assessement of Costs onely is but matter of Office in Court but no Judgement of Court to binde which was confessed by the whole Court The second Error was that no Costs ought to be assessed or adjudged in the Cause above because the Prohibition is grounded solely upon the Modus decimandi which needs proof and upon the Contract between the parties which requires no proof and the Suggestion being intire and part of it needing no proof they could not give any Costs for that is onely where the whole matter in the Suggestion needs proof and therefore the mixing the Contract with the manner of Tithing priviledges the whole as to the matter of Costs but they might grant a Consultation as to that part of the Suggestion which concerned the manner of Tithing but not for the rest which was granted by the whole Court and so both the Judgements were reversed which mark MArkham versus Mollineux Hill 1. Jac. Mollineux sued out an Original in the Common Pleas in an Action of Debt upon a Bond against Markham by the name of John Markham Alderman de D. and all the mean Processe are continued against him by the name of Alderman Markham he appeared and the Plaintiff declared against him by the name of Markham of D. Esquire and afterwards the parties were at Issue and it was found for the Plaintiff and Judgement entred and it was reversed by Writ of Error because it did not appear that that Markham was the same Markham against whom the Original was prosecuted and the Processe continued but it seemed rather that he was another person by reason of his severall Additions of Alderman and Esquire which mark OLiver versus Collins Pasch 6. Jacobi The Plaintiff brought an Action of Debt upon the Statute for not setting forth of Tithes and shews that he is Parson of the Parish Church of Little Lavar in Com. Essex and that the Defendant had so many Acres within the Parish of Little Lavor sowed with Wheat whereof the tenth severed from the ninth part came to eight and twenty pounds and shews that the Defendant at Little Lavor aforesaid took and carried away the Wheat without setting forth the Tithes contrary to the Statute by reason whereof he forfeited threescore Pounds and upon Nil debet pleaded it was found for the Plaintiff and moved in Arrest of Judgement first that the Statute was mis-recited for whereas the the Plaintiff declared that the 4. Novemb. 2 E. 6. it was inacted it was said that there was no such Statute for the Parliament commenced 1 E. 6. and continued by prorogation untill the 4. Novemb. 2 E. 6. and therefore the Plaintiff was mistaken in that but that Exception was not allowed for there were an hundred Presidents against it and in respect of the continual use in that form as the Plaintiff had declared the Court said that they would not alter it for that was to disturb all the Judgements that were ever given in that Court. And secondly it was objected that the matter was mis-tried and there ought to be a new Triall because the Venire facias was of Parva Lavar whereas by their pretence it ought to have been of the Parish of Little Lavar to which Yelverton made Answer that the Triall was well enough for by that Action no Tithe is demanded nor recovered but the Defendant is onely punished for his Contempt against the Statute in not setting forth his Tithe and the wrong done to the Plaintiff complained of is laid onely in the Village of Little Lavor and not in the Parish for all the places in the Declaration where the Parish is named are onely matter of Conveyance and inducement to the Action and not of the substance for the substance is onely that where the wrong and grievance is done to the Plaintiff and that arises onely in Parua Lavor which was granted by the whole Court upon a grand Debate at severall Dayes and Judgement was given for the Plaintiff and the like Judgement was given between Barnard and Costerdam in an Action upon the same Statute upon the last point for the Venn and this hath been twice adjudged but in Costerdams Case which concerned the Earl
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.
31 H. 8. of Monasteries which gives the Houses dissolved to the King but in the same degree and qualitie as the Abbot had them And the Abbot was charged with the power given by himself and so was the King Which mark VVAnto versus Willingsby Pasch 5. Jacobi The Bishop of Exceter in the time of H. 8. by his Deed gives Land c. to Nicho Turner and by Bill his Cousin in consideration of service done by Turner and for other considerations him moving to them and the Heirs of their bodies and dyes They have Issue Jo. and William N. T. dies and Sybill marries Clap. and they alien the Land to Iohn in Fee Sybill and Iohn leavie a Fine to Walther in Fee of the Land And afterwards Sybill infeoffes William her younger Son who infeoffes Willinghby Io enters and leaseth to Walther and Willingby for the tryall of his title seals a Lease to ward who declares of so many Acres in Sutton Cofeild And the Jury upon a not guilty pleaded foundby the Verdict that the Bishop gave the Tenements aforesaid by his Deed the tenor of which Deed follows c. And by the Deed it appeared that the Lands did lye in Little Sutton within the Lordship of Sutton Cofeild And notwithstanding the Plaintiffe shall recover For first it was held not to be any Joynture within the Statute of 11 H. 7. for it is not any such gift as is intended by the Statute for the Bishop was not any Ancestor of the Husband and the Husband took nothing by that but it was a voluntary recompence given by the Bishop in reward of the service passed And the Statute intended a valuable confideration And also the Bishop might well intend it for the Advancement of the woman who appeared to be Cozen to the Bishop And Tanfeild held if the woman were a Doneâ— within the Statute of 11 H. 7 she could be but for a moyetie for the gift was before the marriage and then they took by moyeties And the Baron dying first the woman came not to any part by the husband but by the course of Law as survivour But quaere of this conceit for the other Judges did not allow it And secondly they held that the Fine of Io. the elder Son of Sybill levied to Walther destroyed the entry of Io. and of Walther For although in truth the Fine passed nothing but by conclusion yet Io. the Son and Walther his Conusee shall be estopped to claim any thing by way of forfeiture against that Fine on the womans part then any title accruing after the Fine For they shall not have any new right but Io the Son upon whom the Land was intayled is barred by the Fine Thirdly although upon view of the Deed made by the Bishop the Land which by the Declaration is layed to be in Sutton Cofeild by the Deed appears to be in Little Sutton yet this is helped by the Verdict by which it is found expresly that the Bishop gave the Lands within written and therefore being so precisely found the Deed is not materiall Which mark KNap versus Peir Iewelch Pasc 5. Jacobi An Ejectment brought for Lands in Wiccombe which were the Deans and Chapters of Chichester And in this case it was agreed by the whole Court that if it be a Corporation by prescription it is sufficient to name them by that name they are called And the Court held that if a man demands Rent upon the Land to avoid a Lease upon a condition the Demand ought to be made in the most open place upon the Land The Dean and Chapter of Chichester made a Lease to one Raunce the Lessee of the Defendant of Lands in Wiccombe rendring Rent payable at the Cathedrall Church of Chichester upon such a condition it was agreed by the whole Court that the Demand ought to be made in the Cathedrall Church of Chichester although it was of the Land Leased And the Demand ought to be made at the setting of the Sun the last instant of that day and when he made his Demand he ought to stand still and not walk up and down for the Law did not allow of walking Demands As Pipham said and he ought to make a formall demand And because those whom the Dean and Chapter did send to make the demand of Rent said bear witnesse we are come hither to demand and receive such Rent it was held by the Court that such a demand was not good And they held the demand ought to be made at that part of the Church where the greatest and most common going in is And in this case it was said by Popham that if a man make a Lease to one for yeers to commence at a day to come and then he lease to another for yeers rendring Rent upon a condition to commence presently And he enter And the first Lease commence and he enter the Rent and Condition reserved upon the second Lease is suspended A man leases for years rendring Rent after he leaseth to another to commence at a day to come and the first Lessee attorns the second shall not have the Rent reserved upon the first Lease by Popham but he doubted of it And Popham and Tanfeild held none contradicting that the Letter of Attorney made by the Dean and Chapter to demand their Rent was not good because the Letter of Attorney was to make a general demand on any part of the Land which the Dean and Chapter had leased And that ought to have been speciall onely for that Land And secondly it was to demand Rent of any person to whom they had made a Lease And the Letter of Attorney ought to be particular and not generall of any person TOmpson versus Collier Mich. 5. Jacobi The Plaintiffe declares upon a Lease of Ejectment made by Robinson and Stone of one Messuage and fourty Acres of Land in the Parish of Stone in the Countie of Stafford The Defendant imparled tryall another Terme and then pleads that within the Parish of Stone there were three Villages A. B. and C. And because the Plaintiffe hath not shewed in which of the Villages the Land he demanded Judgement of the Bill c. And the Plaintiffe demurred upon this Plea And adjudged for the Plaintiffe For first after an Imparlance the Defendant cannot plead in abatement of the Bill for he hath admitted of it to be good by his entring into defence and by his Imparlance And secondly the matter of his Plea is not good because the Defendant hath not shewed in which of the Villages the House and fourty Acres of Land did lye And that he ought to have done For where a man pleads in abatement he alwayes ought to give to the Plaintiffe a letter writ with mark And the whole Court held that this Plea was not in barr but that he should answer over And Williams Justice took this difference that when a man demurrs upon a Plea in abatement And when he
to the estate casts the possession of his Ancestors upon him but a stranger to whom a Copy hold is surrendred hath nothing before admittance because he is a purchasor And a Copy made to him upon which he is admitted is his Evidence by the custome and before that he is not a customary Tenant and so he could not transfer any thing to another and adjudged so according to 24 Eliz Alderman Dixies Case BEdell versus Lull Pasch 7. Jacobi The Plaintiffe declares in Ejectment upon a Lease made by Eliz James of certain Lands The Defendant pleads that before Eliz had any thing one Martin James was seised in fee of it and had issue Henry James and dyed seised by reason whereof it discended to H. J. as Son and Heir and that Eliz entred and was seised by abatement and made the Lease to the Plaintiffe and that afterwards the Defendant as servant to H James and by his command c. The Plaintiffe by way of replication confesses the seisen of M. James And that he being so seised by his last Will in writing devised the said Land to Eliz in fee and afterwards dyed seised by reason whereof she entred by force of the devise and made the Lease to the Plaintiffe and traverse without that Eliz was seised by abatement in manner and form c. And the Defendant demurrs upon this replication and shewed for cause that the traverse was not good and adjudged for the Defendant for the Plaintiffe by his replication need not both confesse avoid and traverse the abatement too for the Plaintiffe made a title to his Lease by the Will of his Ancestor and that proved that he entred legally and not by abatement as the Defendant had supposed And then to take a traverse over makes the replication vitious For a traverse shall not be taken but where the thing traversed is issuable And here the devise is onely the title issuable And it was also held that the traverse was not good as to the manner of it for he should not have traversed without that that he was seised by abatement but it ought to have been without that that he did abate and also if the Plaintiffe had minded to have fully answered the Defendant he ought to have took his traverse in the very same words the Defendant had pleaded it against him to wit without that that he did enter and was seised by abatement which observe The Case concerned Sir H. James to whom the Defendant was Tenant SAunders versus Cottington Mich. 7. Jac. An Ejectment brought of two Houses but the Bill was onely for one and it was filed And the Defendant by his paper book pleaded to both Messuages And the Roll in Court and the Record of Nisi prius were two Houses And there was a verdict for the Plaintiffe and Judgement entred accordingly And a Writ of Error was brought by the Defendant and before the Record was removed the Plaintiffe moved the Court that the Bill upon the file might be amended and made two Messuages And because the Defendant had pleaded to Messuages in his Answer in paper and that the Roll and Record were according it was resolved by the whole Court that the Bill upon the File should be amended and made two Messuages for that Bill which made mention onely of one House could not be the ground of all the proceedings afterwards but it was as if no Bill had been filed and therefore it should be supplied and so had been severall times before the Record was renewed Which observe THe Plaintiffe declared in Ejectment upon a Lease of an House 10 Acres of Land 20 Acres of Meadow 20 Acres of Pasture by the name of one Messuage and ten Acres of Meadow be it more or lesse and upon not guilty pleaded the Plaintiffe had a Verdict but moved in Arrest of Judgement and Judgement was stayed For by the Plaintiffs own shewing in his Declaration he could not have Execution of the number of Acres found by the Verdict for in the Lease there is but ten Acres demised And these words more or lesse could not in judgment of Law be extended to thirty or fourty Acres for it is impossible by common intendment and the rather because the Land demanded by the Declaration is of another nature then that which is mentioned in the per nomen c. For that is only of Meadow and the Declaration is of arrable and Pasture MOore versus Hawkins Mich. 8. Jacobi In Ejectment after issue Joyned upon a not guilty pleaded the cause came to be tried before Brook and Yelverton Judges of Assize in the County of Oxford the Plaintiffe had declared of divers Messuages and divers Acres of Land lying in three Villages in the said County And at the tryall before the Jury was sworn Walter the Defendants Counsell put in a Plea that after the last continuance to wit such a day in Trinity Terme before the day of Assize to wit the 20. of July the Assizes being held at Oxford the 21 of July the Plaintiffe had entred into such a Close by name containing eight Acres parcell of the premises specified in the Declaration c. and this Plea was received by the Judges of Assize And afterward in Mich. Terme Yelverton and Walter being of Counsell with the Defendant desired that they might amend their Plea to wit to put in the very Village where the Land did lye into which the entry of the Plaintiffe was because it was but matter of form and not of substance and they were of opinion that the tryall of that new lssue ought to be of all the three Villages named in the Declaration And Yelverton Justice having asked the opinions of all the Judges in Serjeants Inne Fleetstreet related their opinions in the Court the Record of Nisi prius was returned into the Exchequer to wit that it was in the discretion of the Justices of Assize to accept such a Plea as is before and that it might be well allowed as the 10 H. 7. is and it shall stay the Verdict But otherwise it is of a protection for although they allow a protection yet the Judges may take the Verdict de bene esse yet he said that in the 7. E 3. in a Precipe quod reddat a Release was pleaded at the tryal and the Jury found the Verdict but that was the indiscretion of the Judges to allow it when it should not have been allowed And all the said Judges held as he related that the Plaintiffe could not have a replication to that Plea at the tryall for the Justices have no power either to accept a Replication upon that Plea or to try it but onely to return it as parcell of the Record of Nisi prius And they held also that the Plea being put in the Countrey could not be amended in adding the Town in certain in which the Close did lye for it was matter of substance And that the Court of
Writ of Error against Matthew upon a Judgement given in a Quare impedit against the King in the Common Pleas of the Church of A. and the Question was whether a double usurpation upon the King doth so put him out of Possession that he shall be forced to his Writ of Right and it was adjudged in the Common Pleas against the opinion of Anderson that he was put to his Writ of Right but a Writ of Error being brought upon that Judgement in the Common Pleas the Judgement was reversed by the opinion of Popham Yelverton Williams and Tamfeild Fennor being of a contrary opinion and they alleadged two Reasons first because the Right of Patronage and the Advowson it self being an Inheritance in the Crown upon Record the Law will so protect it that no force or wrong done by a Subject it shall be devested out of the King for there is a Record to intitle him but there is no matter of Record against him for a Presentationby a Subject is but matter in fait the which Act although it be mixed with the judicial Act of the Bishop to wit Institution yet it shall not prejudice the King being onely grounded upon the wrong of a Subject and the second Reason was because no man can shew when the Usurpation upon the King should commence and begin for it is not to be doubted but that the King after six Moneths passed if the Incumbent cy might have presented for plenarty is no plea against him and Nullnm tempus occurrit Regi and after that Usurpation upon the King the Court doubted not but that the Patronage was still in the King and Popham said that a Confirmation being made by the King to such a Presentee is good to establish his Possession against a Recovery in a Quare impedit by the King afterwards but that it should not inure to any purpose to amend the Estate of the Usurper for he gaines no Posaession by the Presentation against the King but the Release to him made by the King is void as to so much as is in posaession and during the life of the first Presentee the whole Court did not doubt but that the King might present and then the Death of the Incumbent could not make that to be an Usurpation which was not an Usurpation in his life for his Death is a Determination of the first wrong which will rather help then injure the King and Tanfeild said that so it had been resolved in the Common Pleas 23 24 Eliz. in one Yardleys Case for in that Case there was not any Induction for which reason Judgement was not entred but they were all of the same opinion as the Court then was and onely 43 E. 3. 14. 14 E. 3. and 18 E. 3. are against it and Popham said that a Quare impedit was by the Common Law but it was onely upon a Presentment to wit Induction but if the Incumbent was to be inducted then at the Common Law a Writ of Right of Advowson onely lies DIgby versus Fitzch Trin. 14. Jacobi rotulo It was said in this Case by Justice VVarburton that the Presentment is the Posaession in a Quare impedit as in Rent the receiving and in common the taking of the profits and in a Quare impedit one ought to shew in his Title a Presentation either by himself or one of those under whom the Plaintiff claimes as in a Writ of Right of an Advowson one must shew a Presentation in himself or in his Ancestors whose Heir he is plenarty in a Quare impedit shall be tried by the Bishop for the Church is full by Institution onely in common persons Cases but in the Kings Case the Church is not full untill the Clerk be inducted but whether a Church be void or not shall be tried by the Countrey for of Voidency the Countrey may take notice Actions upon Replevins IF the Cattel be distrained the party that owes them may have a Replevin either by Plaint or Writ at his pleasure and if it be by plaint in the countrey and the Bailiff return to the Sheriff that he cannot have the view of the Beasts to make deliverance then the Sheriff ought to inquire of that by Inquest of office and if it be found that the Beast be not to be had then he ought to award a Withernam and if the Sheriff will not do it then an Attachment shall issue against the Sheriff to the Coroners and after that a Distresse and if a Withernam be granted and a nihil returned upon the Withernam he shall have an alias plures and so infinitely and a second deliverance lies after a Withernam and note that sometimes a Withernam lies after a Withernam as when the Plaintiff is non-suit and after a Return habend and that the Beasts are not to be found that the Beasts of the Plaintiff are taken in Withernam and the Plaintiff appears and alleadges that the Defendant had the cattel first taken and prayes Delivery And if the Defendant when the Sheriffe comes to make replevin of the cattel claims property then at the return of that writ another writ de proprietate probanda shall issue to the Sheriff by which writ the Sheriffe is commanded that taking with him custodibus placitorum c. he shall enquire of the property And if it be found that the property was to the Plaintiff then a redeliverance shall be made the Plaintiff and an Attachment against the Defendant to answer for the contempt in taking and unjustly deteyning the cattell of the Defendant appear upon the plures withernam he shall gage deliverance presently And if the Defendant in Court claims the property and it be found against him the Plaintiff shall recover the value of the cattell and his dammages And if the Defendant plead in abatement of the writ that the property is in the Plaintiff and one other c. and the Plaintif confesse it by which the writ shall abate by an award upon the Role and a return habend be awarded to the Defendant yet the Plaintif shall have a new replevin and the return shall not be irreplegiable for the Statute of Westm the second doth not help a false writ or abatement of a writ but the Plaintif may have a new writ from time to time but it helps non-suits in replevin for if he be non-suit he shall not have a new replevin but a writ of second deliverance And if the Defendant upon the return habend adjudged for him cannot have the return of the Beasts and the Sheriff returns upon the return habend that the cattel first taken are dead he may have a Scire facias against the pledges and upon a nihil return upon that he may have a Scire facias against the Sheriff for insufficient pledges are no pledges and the party may relinquish his withernam and fall upon the pledges or the Sheriffe And if cattell be put into a Castle or Fortress the Sheriffe
although another take away part of my Common yet no action lyeth As if one beat my servant lightly except the Master lose his service no action lieth And if my friend come and lye in my house and set my neighbours house on fire the action lyeth against me and Judgment for the Plaintiff HAtton versus Hun Trin. 13. Jacobi rotulo 3314. In Trespasse and Imprisonment the Defendant justifies by vertue of a Capias and the Plaintiff did afterwards escape and he being Sheriffe did follow him by vertue of the said Warrant taken upon the Capias the Plaintiff replies that he escaped by license of the Sheriffe and traverses the latter taking by vertue of the Warrant and the Court held the traverse idle because the Plaintiff had sufficiently confessed and avoided and if he escaped by the Sheriffs License that ought to be the thing put into issue and not the traverse PAtry versus Wilsh Trin. 9. Jacobi rotulo 1055. An action of Trespass brought wherefore by Force and Armes he broke the Plaintiffs Close and eat his Grasse c. The Defendant justifies for common of pasture and saith that he was seised in Fee of one Messuage with the appurtenances in G. and used to have common for all his Cattell levant and couchant upon the said Messuage And it was moved after a verdict in arrest of Judgment by Sergeant Nichols that the plea was insufficient because the certainty of the Cattell was not expressed as for 200. or the like but the Court held the contrary that levant and couchant is a certainty sufficient and all the Books prescribe for a Common by reason of a Messuage RInghall versus Wolsey Mich. 11. Jacobi rotulo 820. An action of Trespass brought wherefore by force and Armes the servant of the Plaintifs out of the service of the said Plaintiff hath taken and laid to be at H. The Defendant justifies that one was possessed of Corn at S. And that the said servant by the command of his Master had carried away the Corn and that the Owner came to the defendant being Constable and prayed him to detain the servant untill hee could procure a Warrant of a Justice of Peace and traverses that he is guilty at H. The Plaintiff demurres that it was held by the Court a naughty plea First because the Constable could not detain any man but for Felony And secondly the traverse is naught because the Trespass is in the same County and so he might have justified as well in H. as in S. DArney versus Hardington Pasch 9. Jacobi rotulo 1857. An action of Trespass brought to which the Defendant pleads a justification for an Amerciament set in the Sheriffs turn to which Justification exceptions were taken First because the Defendant justified by vertue of a precept to him lawfully granted saith not at what place Secondly he prescribes for the turn to be held and doth not any or what estate c. And Hutton said that a prescription for a turn or one hundred Court by what estate is naught because a hundred is not manurable but lies in grant but he ought to have said that the King and all they that were seised of the said Hundred have had and from the time c. And my Lord Cook said that a prescription by what estate for a thing incident to a Mannor is good for an Hundred that lies in grant it is naught And he and Warburton held that except it was shewed before whom the turn was held it was naught because where any thing is taken by common right as the Sheriffs turn it ought to be holden before the Sheriff as in the prescription it ought to be shewed before whom the turn was held or else it would be naught ROberts versus Thacher al. Hill 11. Jac. rotulo 1928. An action of Trespass brought wherefore by Force and Arms the Close and House of the Plaintif at A. did break and a certain Cow price c. took The Defendant saith that the Plaintiff ought not to have his Action against him because he saith that the Close House is one Messuage c. in A. aforesaid and that before the time in which c. such a one was possessed of the said Cow as of his own proper Cow to wit at A. aforesaid and being thereof so possessed certain Malefactors unknown to the said c. before the said time in which c. the said Cow out of the possession of the said B. did feloniously steal take and lead away whereupon he made Hue and Cry and thereupon hee had intelligence came and was in the possession and custody of the Plaintiff and B. upon notice thereof did request the Defendant to ask the Cow of the Plaintiff and to bring her c. By reason whereof the Defendant the said time in which came to the said Messuage by the usuall way by and through the said Close c. to demand c. And the Defendants then there finding the aforesaid Cow in a wall'd parcell of the Messuage they took the Cow from thence and brought her to the said B. and to him delivered her as c. which is the same Trespass to which plea the Plaintiff demurres and it was adjudged a naughty Justification for these reasons First because it doth not appear but that the Plaintiff had good right to the Cow Secondly because the Defendant took the Cow without demand And thirdly it is not pleaded that the Defendants were servants to the said B. R. and that he did it by his command and therefore Judgment given for the Plaintiff HAll versus Stanley al. Pasch 9. Jacobi rotulo 2289. An action of false imprisonment The Defendant as to the whole Trespass except the Battery and Imprisonment and keeping in prison not guilty And as to that pleads that the Marshals Court is an ancient Court c. and so justifies because the Plaintiff was the pledg of T. C. to the Defendant in an action of trespass upon the case in an indebilat assumpsit generall and thereupon a Judgment against C. and a Capias awarded and a non est invent returned and thereupon a capias awarded against Hall the pledge according to the custome by vertue whereof the said Hall was taken and detained and traverses that he was guilty c. of any imprisoning the Plaintiff before such a day and averres that they are the same persons And the Plaintiff replies that neither R. C. nor T. T. at the time of exhibiting the Bill were of the houshold c. The Defendant demurs and Judgment for the Plaintiff and the whole Court agreed that the Marshalls Court could not hold Plea Covenants and Contracts except both of them were of the houshold of the King and all the matters of which they could hold plea were Trespass Covenants and Contracts of the houshold and within the verge to wit within twelve miles of the Court and Doddridge said that before the Statute of 28
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
amended upon oath 175. Partes ad finem nihil c. pleaded 179 Prescription for Common of pasture 177. Prescription to distrain for amendment in a Court Baron must be not in a Court Leet 183. Prescription in a good estate good for a thing incident though it be in grant 198. Prescription to be a Iustice of peace where good how naught 206. 207 Prescription good matter and various 215. 216 Possession how it enters 230 231. Posse Comitatus where it may be raised 240. Q. QVeen cannot be an Officer to the King 28 Quantity in a Declaration may be destroyed by a per nomen 145. Quare impedit Process in it 158 Quare impedit the Judgement in it 158 Quare impedit essoyn in it how and for whom 159. Quare impedit Iudgement in it where execution shall be by the Metropolitan 159. Quare impedit severall against severall men 161. Quod permittat 227. R. REquest where it is necessary 13 Release of Baron where it is no Bar 15 Rent arrear no plea in an action of Covenant 19 Release where not to be given in Evidence 24 Request upon a bond what is sufficient 30 Rent reserved where gone 32 Rent proportioned 33 Return of a Sheriff insufficient 37 Return of 21 Iurors naught 41 Rogue not actionable 9 Rieus per deceit 54 Release how and where good 62. 63 Repleader awarded 64 Release where good in respect of time 70 Release of all demands its force 81 116. Request to make assurance generally good 85 Release in Law 91 Reversioner received for default of Tenant for life 127 Return insufficient why 127 Replication not good 131 Rent received at Michaelmas or within ten dayes after 105 Reservation of Rent how to be construed 108 109 Record removed unto the Exchequer 145 146 Resignation by fraud takes not away the Kings Title 161 Replevin where and how 168 Replevin not within the Statute 3 Jac. 172 Returno habendo 173 Replevin place omitted not good 176 Resignation of a Benefice 201 Release to Tenant at sufferance void 201 Recognizance sued 225 S. SVit in Chancery is no disturbance 23 Sheriffe amerced for the false Re-return of another 36 Summons severance where 37 Statute preferred before a judgement where 37 38 Supersedeas granted where 40 Subboth where punishable 44 Scandall for keeping a false Debt-booke actionable 4 Suing in a wrong Court where actionable 4 Scandall for false measures actionable 4 Scandall for invocation of Spirits 8 Sheriffe his authority in executions 50 Scire facias for whom 57 Satisfaction what is not 70. where it is held naught 73 Steward of a Leet within the Stat. of Edward 6. 73 Successor not Executor when hee shall take benefit 94 Supersedeas upon a Writ of Error 153 Servant brought an Action nomine proprio part of the goods being his Masters 155 Seisin of Rent within the time of limitation not traversable 170 Surrender of a Copy-holder how it works 181 Sheriffe where his performance is good where naught 210 211 Scire Facias where it is proper 226 Seisin of a part of service is seisin of the whole 230 Submission to Arbitrators 232 Seu Assault Demesne pleaded in Battery 233 T. TRover where 12 Trover against an Administrator good where 16 Tenant at the time of Writ purchased where good 27 Tenant at will and at sufferance do differ 30 Tithes discharged where 31 Tithes where not suable for by the statute 31 Tithes in kind renewed where 32 Trees devised to pay Debts 32 Tithes where not of boughes 33 Tithes not set forth where action 34 Tales prayed denyed where 35 Tearm whole adjudged as one day 37 Trees in the high-way whose 42 Tryall where 49 Tenants in Common 83 Tithe of what trees to be paid 95 Tithes cannot be leased without Deed 99 Tryall upon Ejectment good matter vide 147 148 Tenant in taile his death where it determineth Estates by him granted 161 Tenant in tail grants a rent charge 179 Tales awarded 183 Trespass what process 193 Trespass is joynt or severall at the Plaintiffs election 196 Trespass laid in an Acre and the Iury found in a Rood yet it is good 210 Trespass difference 'twixt it and Rep'evin 214 Tort Demesne where good in issue where not 215 V. VAriance betwixt Count the writ of Inquiry 15 Ven mis-awarded 23 View to be there where an Office is performed 27 Villianage within the statute of limitation 38 Vse upon what 40 Venire Facias mendable where 43 Vsury what where not 52 Uncore Prist where pleadable 61 Verdict speciall 75 Venire Facias mis-awarded 76 Uncore Prist for to grant where naught 76 Venire Facias the Defendants name mistaken 79 Vsurious contract pleaded 86 Variance betwixt the specialty and Count 96 Verdict speciall upon non demisit 126 Venire Facias of the Parish adjudged good 130 Venire Facias to the Coroners ib. Verdict speciall in Ejectment 131 Verdict precise sometimes makes the Declaration good which otherwise would be naught 137 Venire Facias exception taken and over-ruled 161 Vsurpation upon the King 163 Venire Facias whence 176 Vsury the statute pleaded 180 Venire Facias de novo 194. 204. 219 Venire Facias vitious why 209 Verdict finding substance though not circumstances yet good 213 214. Venire one out of two places in the same County 228 W. WHere arrant not actionable 16 Words implyed not actionable 16 Will good by notes 44 Words actionable 2 3. Witch not actionable 2. 14 Warrant of Attorney 46 Words after the Clause of his testatus of what force they are 59 VVrit originall where abated by death 64 Will must be certain and according to Law 130 Will not to be avoided by averment 131 Will mistakes in many cases tollerable 132 Words void rather then the Declaration where 146 Warranty Collaterall pleaded in a Formedon 153 Writ another depending pleaded 163 Withernam awarded 167 168 Words of double intendment how to be construed 192 193 Wast where it lyeth for what judgment in it 237 238 Waste inquiry of it ibid. Waste who shall joyne in the action 238 Waste against whom it lies 239 240 Waste sparsim ibid. The times when these severall Officers of the Court of Common Pleas were admitted to their severall Offices Thomas Spencer Ar. Pasch 33. Eliz. Henery Compton Miles balnei Circa An. 5. Car. Jo. Glyn serviens ad Legem 5. Febr. 19. Car. Johannes Foorde 27. Jan. 27. Eliz. Gulielmus Nelson 15. Novem. 25. Eliz. Richardus Brownelow 9. Oct. 32. Eliz. Thomas Cory 9. Oct. 14. Car. Zacharias Scot. 9. Oct. 27. Eliz. Thomas Crompton 10. May 7. Jac. Johannes Goldesborough 7. May 11. Jac. Johannes Gulston 15. Oct. 16. Jac. Richardus Barnard 9. Febr. 19. Car. Johannes Pynsent Ult. May 20. Car. Laurentius Rardford 30. Oct. 23. Elizabeth Hugo Browker 28. November 31. Eliz. Thomas Waller 23. Jan. 5. Jac. Robertus Moyle 7. May 3. Car. Geo. Farmer 16. Oct. 14. Car. Gulielmus Anderson 12. 1. May
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 the King for the Plaintiff and day given for the argument of that till the next tearm Hillary 8. Jacobi 1610. in the Common Bench. Tresham against Lambe LEwes Tresham was Plaintiff in waste against John Lambe the Plaintiff supposed the Defendant had made waste in sowing and plowing ancient meadow the which he had let to the Defendant for years in Rushton in the county of Northampton and sowed it with Woade and prayed Estrepement upon the Statute of Glocester chapter 13. And upon examination it appears that the Lands let was pasture and Meadow the Pasture was Ridge and furrow but had been mowed and used for meadow for diverse years and that the Defendant plowed and sowed that with Woade but this which had been ancient meadow he used that as Meadow and did not convert that to Arable Land but the Judges would not grant any Estrepement to the Pasture for that it was Ridge and furrow and it was no ancient meadow although that had been mowed time out of minde c. But to the ancient Meadow they granted a writ of Esterpement but Foster seemed to be of another opinion for that that it was to sow Woade for that that it is against common Right and the fume and smell of that is offensive and infectious but if it had been to sow Corne he agreed as above and for the executing the Writ of Estrepement they all agreed that the Sheriff ought to take if need be the power of the County against those which made the waste hanging the Action and may commit them if they will not obey him for the words of the Statute are that you shall cause to keep which shall be intended in safety But if Lessee for years trench or draine that is no Wast as it was now of late times adjudged where if the Lessee takes any of the reasonable Bootes that the Law allowes that it shall be no Waste nor Estrepement shall be granted see Fitzherberts Natura Brevium 59. m. If a man devise Land to his Executors for years this is assetts but if he devise that his Executors shall sell his Lands or devise his Lands to his Executors to be sold this shall be no assets untill the Lands are sold and the money for which the land shall be sold shall be assetts A Record of Nisi prius in an Action of Debt upon an obligation with condition to pay such a sum of Money at such a Feast next after the date of the obligation and the day of the date of the obligation was omitted in the Record of the Nisi prius so that it doth not appear which shall be the next Feast at which the mony ought to be paid after the date and by all the Justices that was no perfect Issue and for that the Justices of Nisi prius have no power to proceed upon it and for that it shall not be amended otherwise if it had been a good Issue though that another thing had been mistaken see Dyer 9. Eliz. 260. 24. And see before the same Tearm here The King pardoned a man attaint for giving a false verdict yet he shall not be at another time impannelled upon any Jury for though that the punishment were pardoned yet the Guilt remaines Hillary 8. Jacobi 1610. In the Common Bench. James versus Reade THE case was the King was seised of a Mannor where there were diverse Copy-holders for life and was also seised of eight Acres of Land in another Mannor in which the Copy-holders have used time out of minde c. To have common and after the King grants the Mannor to one and the eight Acres to another and a Copy-holder puts in his beasts into the eight Acres of Land and in trespasse brought against him by the Patentee of the eight Acres he prescribes that the Lord of a Mannor and all those whose estate he hath in the Mannor have used time out of minde c. For themselves and their Copy-holders to have Common in the said eight Acres of Land and further pleaded that he was Copy-holder for his life by grant after the said unity of possession in the King and so demanded judgment if action against which the said unity of possession was pleaded upon which the Defendant demurrs and all the Justices seemed that though that prescription was pleaded that the common was extinct but it seems also to them that by speciall pleading he might have beene helped and save his common for this was common Appendant see 4. Coke Tirringhams Case 37. 6. Hillary 8. Jacobi 1610. In the Common Bench. Cartwright against Gilbert IN Debt upon an obligation with condition to be and perform an Arbitrement to be made the Arbitrators award that the Defendant should make Submission and should acknowledge himself sorry for all transgressions and words at or before the next Court to be held in the Mannor of P. And for the not performance of that Award the Plaintiff brought this Suit and the Defendant in Barr of this pleads that at the said next Court he went to the Court to make his submission and to acknowledge himself greived according to the Award and was there ready to have performed it but further he saith that the Plaintiff was not there to accept it upon which the Plaintiff demurred and it seemes to Coke and Foster that the Defendant hath done as much as was to be done of his part and for that that the Plaintiff was not there ready to accept the Defendant was discharged for this submission is personall and to the intent to make them freinds and for that both the parties ought to be present But Walmesley and Warburton seemed that it might have been very well made in the absence of the Plaintiff as well as a man may submit himself to an Arbitrement of a man which is absent for this is only to be made to the intent to shew himself sorrowfull for the Trespasses and words which he hath made and spoken and it was not argued but adjourned till the next tearme and the Justices moved the parties to make an end of that for that it was a trifling Suit Hillary 8. Jacobi 1610 In the Common Bench. Sir Edward Ashfeild SIR Edward Ashfeild was bound in an obligation by the name of Sir Edmund and subscribed that with the name of Edward and in Debt brought upon that he pleads it is not his Deed and it seemes to all the Justices that he might well plead that for it appears to them that he is not named Edmund and the originall against him was Command Edward otherwise Edmund and this was not good for a man cannot have two Christian names and if judgment were given against him by the name of Edmund and the Sheriff arrest him by Capias that false imprisonment lies against him But if he have a name given to him when he was christened and another when he was confirmed he shall be called and known by the name given unto him at the time
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
have an Action upon the Statute of Offenders in Parkes for hunting in two Parkes 13 H. 7â—12 and 8 Ed. 4. 〈◊〉 One Action of Trespasse for Trespasses made at severall times and so one Action of Debt for diverse Contracts 11 H. 6. 24. by Martin 3 H. 6. Trespas 3 H. 4. But he argued that in reall or mixt Actions as ravishment of Ward for severall Wards or one Quare impedit for severall Churches this shall not be good Fitz. Ward 52. 3. H. 6. 52. And also he said that the Statute of 32 H. 8. chapter 34. by expresse words gives the same remedy to Grantees of Reversions that the Grantors themselves had and the Grantor without question may have an Action if he have not granted the Reversion and so he concluded and prayed Judgment for the Plaintiff and it was adjourned Hillary 8. Jacobi 1610. In the Common Bench. Sturgis against Dean see T. 65. A Man was bound to pay to the Plaintiff ten pound within ten dayes after his return from Jerusalem the Plaintiff proving that he had been there and the Plaintiff after ten dayes brought his Action upon the Obligation without making of any proofe that he had been there and if that were good or that he ought to make proofe of that before he brings his Action this was the question and also he ought to make proofe then what manner of proofe and it was moved by Haughton that when a thing is true and is not referred to any certain and particular manner of proof as before what shall be done or how the proofe shall be made the party may bring his Action and the other party may take his Issue upon the doing of the thing which ought to be proved the triall of that shall be proofe sufficient and in his count he need not to aver that he had been there see 10 Ed. 4. 11. b. c. 15 Ed. 4. 25. 7 R. 2. Barr 241. And here also the proofe if any should it ought to be made within ten dayes the which cannot be made by Jury in so short a time as it is said by Choke in 10 Ed. 4. 11. b. though that he agreed that when a man may speake of proofe generally that shall be intended proofe by Jury for that that this is the most high proofe as it is said in Gregories Case 6 Coke 20. a. and 10 Ed. 4. 11. b. But of the other part it was said by Sherley Serjeant that true it is that proofe ought to be made for the Defendant as the Case is in 10 Ed. 4. 11. That then such proofe should be sufficient for the Plaintiff may bring his Action before that the Defendant may by possibility bring his Action but where the Plaintiff ought to make the proofe there he ought to prove that before that he bring his Action and it shall be accounted his Folly that he would bring his action before he had proved that but all the Justices agreed that the Plaintiff need not to make any other proofe but only by the bringing of his Action but the Lord Coke took exception to the pleading for that that the Plaintiff hath not averred in his replication that he was at Hierusalem but generally that such a day he returned from thence and he said that a man might returne from a place when he was not at the same place as if he had been neere the place or in the skirts of Hierusalem and upon that it was adjourned see the beginning of that Trinity 8. Jacobi 462. a. Mich. 13. 200. and 204. Hillary 8. Jacobi 1610. in the Common Bench. Wickenden against Thomas THe Case was this 2. Executors were joyntly made in a Will one of them releases a Debt due to the Testator and after before the Ordinary refuses to Administer and it was agreed by all the Justices that the release was Administration and for that he hath made his Election and then the Refusall comes too late and so is void Bedell against Bedell IN wast the case was this A Man seised of Lands makes his Will and of that makes two Executors and devises his Lands to his Executors for one and twenty yeares after his Death upon trust that they should permit A. To injoy that during and to take all the profits all the Terme if he so long lived and if he â—ied within the Terme then that B. should take the profits and so with others remained in the same manner with the remainder over to a stranger in tayl one of the Executors refuseth to prove the Will or Administer and also to accept the Terme the other executor proves the Will Administers the Goods and enters into the Land according to the Lease and that assignes to A. according to the trust reposed in him and after that he in reversion in tayl brings an Action of wast against the Executors which proved the Will and he proved all the matter aforesaid and that before the assignement and that before that no wast was made and it seemes to all the Judges that this was a good Plea for the waveing of one Executor is good and though that he might after Administer as the book of 21. Ed. 4. Is for that the Interest of his Companion preserves his Authority where are 2 or more But if there be but one Executor and he refuseth and the Ordinary grants Administration to another he cannot then Administer againe and Coke cheife Justice cited that one Rowles made the Lord Chancellor which then was the cheife Justice of England and the Master of the Rolls his Executors and died and they writ their Letters to the Ordinary witnessing that they were Imployed in great businesses and could not intend the performance of the said Will and that for that they desire to be free of that and that the Ordinary would committ the Administration of the goods of the said Testator to the next of blood and this sufficient refusall And upon that the Ordinary committed the Administration accordingly And to the pleading that no wast was made before the assignement they all agreed that this was good and so it was adjourned for this time A man sould his Land upon a condition and after took a Wife and died the Heire entred for the Condition broken yet the Wife shall not be endowed so if the Condition had been broken before the Death of the Husband if he had not entred for he had but title of entery Hillary 8. Jacobi 1610. in the Common Bench. As yet Doctor Husseys Case MOore against Doctor Hussey and his Wife and many others in Ravishement of Ward The case was the Ward of Moore was placed at the University of Oxford to be instructed in the liberall Sciences and was married by the Wife of Doctor Hussey to the Daughter of the said Wife which she had by a former Husband And for that Moore brought this Writ against Doctor Hussey and his Wife and the Minister which married them and all
to certaine times as the statute of Westminster 2. chapt 11. Which gives power to Auditors which finde accountants in Arrerages to commit them to prison but it ought not to be forthwith and this for the favour of the Defendants and this is the reason also of the Judgment in Fogassas Case by the statute of Agreements that every agreement shall be taken within the statute and so the Statute of 23 H. 6. Provides that the Sheriff shall not let out his County and 20 H. 7. 21. It is agreed that the letting out of a Hundred is not within the Statute and it is also agreed in Partridges case Com. 87. that the statute of 32 H. 8. of buying of Tithes shall not be taken by Equity and the reason is there given insomuch that it is a penall Law and if it be so that the statute shall not be taken by Equity he considered if it be within the words and to that he intended that it is not Corne which is bought for it is changed into another thing and also it is not dead Victuall for it is not Victuall till another thing is made of it also the same thing that was bought ought to be sold again or otherwise it shall not be within the Words of the statute and by consequence out of the penalty as if a man buy Corn and make that into Meale Bread or Puddings this is not within the statute so the buying of Apples and selling of them again it is no victualls within the statute so Butcher which buyes Cattell and those kill and sells again is not within the statute and he sayes that Starch is good Food when it is dry again which proves that this is another thing then the Meale which was bought and so out of the Letter of the statute and to the Proviso which excepts Barley that is bought and made in Malt and Oates made in Oate-Meale and sold again it seems that this is an idle Proviso and surplusage as in Porters Case 1 Coke 24. 6. in the statute of 27 H. 8. Proviso to except good uses out of the statute inables men to devise to such uses and so the statute of 5 Ed. 6. chapter 16. the Body of which extends only to Offices Covenant Administration of Justice or the Revenue of the King as Receiver Controller c. And yet a Keeper of a Park is excepted out of this more for the satisfaction of the ignorant Burgesses then for any necessity and so he concluded and prayed judgment for the Defendant Montague Serjeant of the King for the King and for the Informer argued to the contrary that as to the objection that Costermongers are not within the statute he sayth that that is a thing of Delicacy and not victualls within the statute but he sayth it was adjudged in the Exchequer that the buying of Meale and the selling of that again was within this statute and in this case the Information is that the Defendant had bought Meale and sold the same again by the name of Starch which is confessed by the Demurrer and for the exposition of the statute he considered the mischeife before the making of that the remedy which is provided by the statute and the Office of a good Judge that is to advance the remedy and suppresse the mischeife and he intended that this was punishable by the Common Law in another forme as Waste notwithstanding as Action doth not ly yet Prohibition lyes at the Common Law and by the statute of 27 Ed. 3. Justices in Oyre ought to inquire of all greivances and oppressions to the People and there cannot be greater greivance or oppression then that is which deprives them of their food and for that he is called the Oppresser of the Poore and Fleta calls him Woolfe which ought to be hunted from place to place and 43 Assise was punished by Fine and Ransome and yet then the offence was uncertain but now it is made certain by defining it by this statute so that this is a statute of Definition only and the statute of 31. Ed. 1. infâ—icts the punishment and to the objection that it is not the same thing which is sold which was bought he said it is the same in intent for it produceth the same mischeife Secondly It is the same substance and the same forme that is the formall substance which gives the being but not an accedentall forme and he saith that if a man have Corne and another by wrong takes it from him and doth convert it into Meale he may take that back again otherwise of Iron made into an Anvill but trees made into Timber and plate altered in fashion may be taken back again otherwise if it be converted into Coyne and so upon the Statute of 21 H. 8. If a Servant sells the Goods of his Master and steal the Money that is out of the Statute but if the Servant carry Corne to the Mill and this is converted into Meale and then the Servant steales it this is within the statute for this is the same thing 28 H. 8. A man pleads he appearing seised to the same use it shall not be intended the same but such uses and Browning and Beestons case in the Com. A man is bound to pay twenty pound at Michaelmas and also afterwards to pay twenty pound at the same Feast and that was intended the same Feast in another year and not in the same year so that the word same shall not be so precisely taken but as Patent of the King for making of a thing of which a man hath made new invention is good if it be limited for certain time only as Hastings hath a Patent for making of Frisado only as a thing newly invented by him but insomuch that this varyes only in the form of making of that and not in substance the Patent was adjudged voyd so a Patent made to a Cutler for Gilding insomuch that this varies only in forme this was not allowed to be a new invention so a Patent made to Johnson for new casting of Lead insomuch that that varies only in forme and not in substance this agreed with the ancient this was also void and if the starch made be another thing then the Meale which was bought then it ought to be another in nature and quality but this is not for starch is used for Victuall in Spayne and other Countries as Ryce is used see 46 Assise 8. 27. and he intended that the Proviso made that cleer and without question for there cannot be a difference made between that and Malt and if Malt had not been within the Body of the Act this would not be exempted by speciall Proviso and so the statute of 25 H. 8. chapter 2. for transportation of Victuall in Ireland except Meale which proves also that Meale is included within the words dead Victualls and which hath been within the Body of the statute if it had not been excepted and to the Objection that it
not the accidentall as here it is but it is the substantiall forme and every one knows that Meale of Wheat is the same as Pepper beaten in a Morter and Pepper and all other Spices so that it is the same in number existence substance and essence and he intended also the same in intention for Meale is Victuall and is dead Victuall be it Corne or Meale and Corn grownd and made in Meale then sold yet that remains dead Victuall and Meale is the same dead Victuall though that it be not the same Corne and to prove that Corn is Victuall he cyted the Statute of 25 Edw. 3. 5. Stat. Chap. 7. Which provides that no Forester shall make any gathering of Victuals by colour of their Office and hee intended that Corne was within this statute and so also of the statute of the 3. P. and M. Chap. 15. Rastal Universities which provides that to the Purveyor Bargainor for any Victuals within 5 miles of any of the Universities of Oxford or Cambridg where Grain and Victuall are joyned together So the Statute of 25 H. 8. Chap. 2. abridged by Rastall Victual 15. which inhibits the transportation of Victuall if it be not of Meal and Butter into Ireland by which it appears that Meale is dead Victualls And he said that Victuals is that which refresheth men and Victualls are those things which to the use of eating and drinking are necessary So that Meale is the same in number though that the Corne were turned into Meale And he cyted Peacock and Reynolds Caâ—e to be adjudged 42 Eliz. That if a man buy Corne and convert that into Meale and so sell it it is within this Statute And hee said that if a man be made a Knight hanging his action that this shall abate his action but yet he remains the same person but his name is changed which is the cause of the abatement of his action 7 H. 6. 15. Also the Defendant is concluded by his demurrer upon the Information to say that it is not the same thing for this is confessed by the Demurrer and though that the name be changed this is not materiall if the substance be the same and he agreed that a Baker which buys Wheat and makes it into Bread is not within the Statute for he furthers that to the use of man as a Curryer makes the Leather more fit and apt for use but so doth not he which makes it into starch for he furthers the abuse for it is no lawfull Occupation but idle and friâ—olous furtherance of vanity of men And in 35. H. 6. 2. If a man enter into the Land of another man and cut Trees and that square and make into Boards yet if the Owner enter hee may take them But if it be made into a House otherwise it is for there it is mingled with other things as it is 5 H. 7. 15 16. So Iron made in Anvill But of Leather made in Shooes otherwise it is insomuch that it is mingled with other things 12 H. 8. 11. a. A dead Stag is not a Stag but is a certain dead thing and flesh As a man dead is not a man but agreed the Book of H. 7. 15. and 16. That Corne converted into Meale cannot be restored nor reprized no more may that if it remains in Corne if it be not in Baggs And hee said that upon the Statute of Merton the Re-disseisin after the Recovery in Assise if the same Disseisor makes Re-disseisin the Sheriffe may examine that c. And it is agreed in 27 H. 6. That if Tenant in tayle be disseised and recover in assise and is put in possession and after his Estate is altered and he become Tenant in tayle after possibility of Issue extinct and then the Disseisor makes Re-disseisin that this is aided by the statute not that it is alteration of the Estate And also he saith it appears more fully by the Proviso by which it is provided that Barley turned into Malt and Oates turned into Oatmeale if it be by Ingrossing it is within the purview of the statute So if it be by way of Fore-stalling or if they sell them again before that they are converted shall be Regrators And to the Objection that other things that is Water and Fire are added to that he saith that none of them remains for the Fire dryes the water and the fire also goeth out and so he concluded and prayed Judgment for the King and the Informer and it was adjourned Michaelmass 1611. 9. Jacobi in the Common Bench. IN Dower against Infant which makes default upon the grand Cape returned and agreed by all the Justices that Judgment shall be given upon the Default for the Infant shall not have his age and so it was adjudge upon a Writ of Error Charnock against Currey Administrator of Allen. IN debt upon an Obligation against the Defendant as Administrator as above he pleads Judgment had against him in an action of debt and over that hath not to satisfie to which the Plaintiff replies that this Judgment was for penalty and the condition was for a lesser sum and that the Plaintiff in the first action had accepted his due debt and had promised to acknowledg satisfaction of the Judgement at the request of the Defendant and at his charges and the Administrator which was the Defendant did not make request upon fraud and Covin to avoid the Plaintiffs action Upon which the Defendant hath demurred and so confesseth the matter of the Plea But Foster seemed that the Plaintiff ought to aver that the Plaintiff in the first action hath offered to acknowledg satisfaction and that otherwise he should be put to his action upon the Case but Coke and Warberton intended that the Replication is very good without such averment for it shall be intended that the Plaintif will perform his promise But further this Demurrer which was only for part was also for another part an Issue joyned for the other part which was to be tryed by the Country and which shall be tryed of the Issue or of the Demurrer was the question and it was agreed by them all that the Issue or Demurrer shall be first at the discretion of the Court see 11 H. 4. 5. 38. Ed. 3. Commission is granted to the Councel in Wales of which the President Vice-president or Cheife Justice to be one And the question was if they might make a Deputy and it was agreed that a delegate power could not be delegated but they might make an Officer to take an accompt in any such act Note that a Caveat was entred with a Bishop that he should not admit any without giving notice that the admission this notwithstanding is good but if he admit one which hath no right he is a disturber but otherwise the Caveat doth nothing but only to make the Bishop carefull what person he admits Foster Justice seemed that if the Ordinary now after the statute of
21 H. 8. grants administration to one which is next of Blood that he cannot repeale it but Coke cheife Justice seemed the contrary and that he incurred the penalty of the statute only And if an Administration be granted to one which is next of Blood upon which the first Administrator brings an action of debt hanging that upon suggestion that the first Administration is void another Administration is granted and it seems that this second Administration granted upon this suggestion shall be repealed from the first though it be generall and without any recitall of it But if the second be declared by sentence to be void from the beginning then the first remains good Action upon the Case was brought for these words that is thou hast killed I. S. And it seems that the action doth not lye for a man may kill another in execution and as Minister of Justice or in Warr in which things killing is justifiable Michaelmasse 1611. 9. Jacobi in the Common Bench George Barney against Thomas Hardingham IN Trespasse for breaking the House and taking of a Cowe the Defendant pleades that the King and all those whose Estates he hath in the hundred have had Turne and at the Court held such a day it was presented that the Plaintiff hath incroached upon the high Way for which he was amerced and the amercement was affirmed by two Justices of peace according to the Custome of the Turne aforesaid And that he being Bayliff of the hundred by vertue of a Warrant to him in due manner made and directed hath entred the said house and taken the said Cowe for distresse for the said amercement and carrying it away which is the same Trespasse and so demands Judgement upon which Plea the Plaintiff Demurred And by Haughton Serjeant for the Plaintiff the Plea in Barr is not good and first he conceived that it was not good insomuch that the King hath made his Prescription by whose Estate and he intended that he could not make his Prescription by whose Estate insomuch that this lies in grant as it is 12. H. 7. 15. where it is agreed that by nothing which lieth in grant a man may Prescribe by whose Estate Also the Plea is that the King was seised in his Demesne as of Fee where it ought to be in Fee only insomuch that it is a thing only in Jurisdiction or Signiory and not Manurable as in 8. H. 7. 7. H. 4. 30. assis In an Action of Debt upon Reservation made upon Lease of a Mannor and hundred it is agreed that the hundred is not in Demesne nor Manurable Also the Plea is not good insomuch that it is not Pleaded before whom the Turne shall be held And allwaies when a man claimes a Court by Patent he ought to shew before whom his Court shall be held otherwise it shall not be good so of Conusance of Pleas otherwise it is if it be in a Turne for that shall be intended a certaine ancient Court See 44. Ed 5. 17. 1. H. 4. 6. 6. H. 4. 1. Also the Statute of Magna Charta chap. 35. requires that it should be held in the accustomed place and so it ought to be alledged or otherwise it is against the Statute and for that it shall not be good for it is of the nature of Sheriffs Turne and derived out of that See the book of Entries in Replevin 2. Also the Statute of Magna Charta chap. 14. appoints that the officers shall be the Sheriffe and this is not pleaded but generally by two Justices of Peace upon their Oath And also it is not pleaded to what Sum the amercement was made Also it is pleaded that he being a Bayliffe of the Hundred by vertue of a Warrant to him in due manner directed and made hath taken the distresse and doth not plead the Warrant certainly nor the place where it was made And for that the Plea is not good Also he pleades that he took and led away the Cowe in name of distresse and he ought to say that he took it and impounded it for that he tooke it and carried it away imports that he tooke it to his owne use 9. Ed. 4. 2. 20. Ed. 4. 6. And so he concluded that the Barr is not good and praied Judgement for the Plaintiff And Barker Serjeant for the Defendant conceived that the Prescription for the Hundred by which the Estate was very good and for that See 12. H. 7. 17. a. 8. H. 7. 13. H. 7. Also he intended that the title to the Court is very good notwithstanding that it is expressed before that it shall be held insomuch that the Law takes notice of the Turne of the Sheriffe and that he is Judge of that and that the Affirance is very good insomuch that this is according to the Custome of the Turne aforesaid And the Warrant of the Baylifâ—e is very well pleaded and more is pleaded then need for it is the duty and appertaineth to his office to gather the amercements and he might do that without Warrant by force of his office But if it be upon plaint between party and party otherwise it is and for that see the book of Entries 553. And also the charge in the Action is for that that he took and carried away and of that he made Justification and he cannot Plead otherwise and to the whose Estate c. That a man cannot Prescribe to have a thing by whose Estate which lieth meerely in grant without shewing of a Deed yet when that is appurtenant to another thing as here the Court is to a Hundred it may very well that do and 33. H. 8. B. Leete when the penalty is Presented by the Jury it selfe there needs not any affirance And so he concluded that the Plea in Barr is very good and praied Judgement upon that for the Defendant And Coke cheife Justice said that Turne of the Sheriffe is derived of Turner which signifies to ride a Circuit and so of that is derived Turner and of that the Turne of the Sheriffe and of this is derived the Hundred and from this the Leete And it seems to him that he ought to plead before that the Court shall be held insomuch that it is against Right and so it was adjourned Michaelmas 1611. 9. Jacobi in the Common Bench. Hill against Upchurch NOTE that Coke cheife Justice saith that it was adjudged in 27. of Eliz. For the Mannor of Northhall in the County of Essex that admitting that a Copy-hold may be Intailed by the Statute that then Custome that a surrender shall be a Barr or discontinuance of such Estate tayl is good for as well as the Estate may be created by Custome as well it may be Barred or discontinued by Surrender by Custome Brandons Case NOTE if a Mannor or other signiory be extended upon a Statute and a Ward falls which is a sufficient value to make satisfaction of the Extent yet this shall not be
any satisfaction in tender to satisfaction Insomuch that this is only the fruit of Tenure and not like to cutti ng of Trees nor to digging of Cole or other Ore And so Coke cheife Justice that it hath been adjudged and with this agreed the booke of 21. Ed. 3. 1. The manner to make Summons in Dower if the Land lieth in one County and the Church in another County Then upon the Statute the Sheriffe ought come to the next Church though it be in another County and there make Proclamation asthe Auditors in Accompt ought to commit the Accomptants found in arrerages to the next Gaole and there ought to be committed though that they are in another County The words of a Patent of a Judge of the Common Bench are as follows that is to say James by the grace of God c. Know that we have constituted Humphrey Winch Serjeant at Law one of our Justices of the Common Bench during our good pleasure with all and singuler Vales and Fees to the same office belonging and appertaning In Witnesse of which c. Michaelmasse 1611 9. Jacobi in the Common Bench. Jacob against Stilo Sowgate IN an Action upon the Case for slanderous words The declaration was that the Defendant said of the aforesaid Plaintiff that he is perjured to which the Defendant pleads that the Plaintiff another time hath brought an Action in the Kings Bench against the same Defendant for that that he the said Plaintiff was perjured and had cozened John Sowgate and that the Defendant had pleaded to all besides these words Thou art perjured not guilty and to the words thou art perjured he Justifies that the Plaintiff was perjured in making an Affidavit in the Star-chamber and this Issue was Joyned and it was found for the Defendant but it was not pleaded that any Judgement was given upon it And Haughton Serjeant for the Plaintiff which had Demurred upon the Defendants Plea Argued that the Plea is insufficient for if it shall be intended by that that the Plaintiff was afore times barred if it be in a reall Action it ought to be averred that it is for the same Land and if it be in a personall Action it ought to be averred that it is the same Debt or Trespasse and if it be pleaded by way of Justification then he ought to have averred also that the Plaintiff hath taken a false and untrue Oath upon which Issue might have been taken But here nothing is pleaded but the Record and nothing averred in Facto So that the Issue cannot be taken upon it for the pleading is only of Record and that the Defendant for the cause aforesaid in the Record afore said mentioned spoke the said words and this is not good for there is not contained any cause of Justification as in Quare Impedit in the 15. and 16 H. 6. The Defendant pleads that he was Incumbent by the cause aforesaid and without that But this was no good Plea for he ought to plead his Title specially And also it is not pleaded as Estoppell for then he ought to have relied upon that precisely as 35. H. 6. in Replevin the avowant relies upon discent 30. assis 32. 2. H. 7. 9. Also Estoppell it cannot be insomuch that Judgement was not given in the first Action Also it is not pleaded as Estoppell for the Plea is concluded Judgement if Action where he ought to have relied upon the Estoppell and peradventure also the Triall was voyd by unawarding of Venire Facias or other Error So that without Judgement it can be no Estoppell and so he concluded and praied Judgement for the Plaintiff Barker Serjeant argued for the Defendant that the Declaration is very good and notwithstanding that the words are generall that is he is perjured yet this may be supplyed very well by the Innuendo as it appeares by James and Alexanders Case 4. Coke 17. a. And also that Estoppell by the Verdict is good without Judgement as in Action of Debt release was pleaded and Issue joyned upon that and found for the Defendant and after another Action was brought for the same Debt and agreed that the first Virdict was Estoppell 2. Ed. 3. 19. b. c. And he cited Baxter and Styles Case to be adjudged in the point that the Estoppell is good and also Vernons Case 4. Coke where the bringing of a Writ of Dower Estopped the Wife to demand her Joynture and so concluded and prayed Judgement for the Defendant Coke the Count is good being of the aforesaid Plaintiff and may after be supplyed by Innuendo though that the words after are generall But if the words were generall that is He is perjured without saying that the Defendant spoke of the aforesaid Plaintiff these English words following Videlicet he Innuendo the Plaintiff is perjured this is not good and shall not be supplied by Innuendo and he said that another time convicted is a good Plea in case of life without Judgement but this is in favour of life but in trespasse it ought to be averred that it is the same Trespasse and also there ought to be Judgement and the Defendant ought to relye upon that as an Estoppell and agreed by all that Judgement should beâ—given for the Defendant if cause be not shewed to the contrary such a day c. Michaelmass 1611. 9. Jacobi in the Common Bench. Hall against Stanley IN Trespass for Assault and Imprisonment the Defendant justifies insomnch that the Action upon the case was begun in the Marshalsey for a Debt upon an Assumpsit made by the Plaintiff and that upon that Capias was awarded to this Defendant being a Minister of the said Court to Arrest the Plaintiff to answer in the said Action and that he by force of that Arrested the Plaintiff and him detained till the Plaintiff found suerties to answer to the said Action which is the same assault and Imprisonment To which the Plaintiff replied that none of the parties in the said Action were of the Kings houshold and so demanded Judgement upon which the Defendant Demurred in Law And Dodridge the Kings Serjeant for the Defendant that the Court of Marshalsey may hold Plea of Actions of Trespasse by the parties or any of them of the Kings house or not and he intended that the Jurisdiction at the Common Law was generall and then they have Jurisdiction of all Actions as well reall as personall and though that their Jurisdiction be in many cases restrained yet in an Action of Trespasse there is not any restraint but at this day they have two Jurisdictions That is in Criminall cases and also in Civill causes within the Virge See Fleta book the second and third where he discribes the Jurisdiction of all Courts and amongst them the Jurisdictions of this Court and also Britton which wrote in the time of Ed. 1. lib. 1. chap. 2. which saith it was held before Bygott who was then Earle
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
upon the Estate and to the Livery made after two Rent dayes incurred he intended that Livery is good that notwithstanding for the deferring of the Execution of a letter of Attorney shall not defeat the Lease or other meane act which amounts to a Command for the Lessâ—r takes the profits in the mean time and it is not like to Littletons case that if a man devise his land to his Executors to be sold and they take the profits and do not make Sale that the Heir may enter insomuch that the Executors have not performed the Condition and it was not the intent of the Devisor that they should take the profits in the Interim to their own use and he intended that the declaration was not repugnant for it is of the aforesaid Church and not of the Dean and Chapter aforesayd and also there need not such congruity as it were the Foundation of the Action insomuch that this is only Allegation of the truth of the matter see 1 H. 7. 18. For variance upon shewing in Deed and 17 Ed. 3. 33. b. and here the aforesaid shew that it is the same in substance though it vary in words and though that the name is altered yet are the same persons in substance and the same Body and though that it be as it is intended to be of another part yet it is but name and the Foundation then is not Issuable as if the King H. 8. had been the Founder and made speciall provision in the Foundation that after the Time of Ed. 6. it shall be said to be the Foundation of Ed. 6. this shall be good and so he concluded and prayed Judgment for the Plaintiff see after adjudged Michaelmas 9. Jacobi 1611. In the Common Bench. The Bishop of Ely THE Bishop of Ely granted an Office with the Fee for the exercising of that if it be an ancient office it is a good grant and if the Fee be newly increased yet Foster Justice thought that the Grant shall be good for the Office and for so much of the Fee as hath been anciently granted with the Office Michaelmas 1611. 9. Jacobi in the Common Bench. Holcroft against George French IN an Action upon the Case upon an Assumpsit if the consideration be Executory then the Declaration ought to contain the time and place where it was made and after it ought ro be averred In Facto when it was performed or executed accordingly but if it be by way of Reciprocall agreement then the Plaintiff may count that in consideration that he hath promised for the Defendant the Defendant hath promised to do another thing for him there he need not that the Declaration contain time or place for the consideration or otherwise that it is performed and executed But if in the first case where it is executory that is also an averment that it is executed there if the Defendant plead Non Assumpsit generally and do not plead the speciall matter he cannot after take exception to that Count for the Default aforesayd where he pleads specially to that as in an action of Trover the Conversion ought to be averred to be in a certain place and so in submission and Arbitrement they are contained in the declaration it need not to expresse any time or place certain but if the Defendant pleads that the Arbitrators made no award or that the parties have not submitted themselves to their award there the Plaintiff may reply that the Arbitrement or Submission was made at such a place and this was agreed by all the Justices Michaelmasse 1611. 9. Jacobi in the Common Bench Sir Edward Puncheon against Thomas Legate IT was adjudged in the Kings Bench and affirmed upon a Writ of Errour in the Kings Bench that an action upon the case upon an Assumpsit made by the Testator is very well maintainable against the Executor and this was for Money borrowed and so the Count speciall but not upon generall Indebitatus Assumpsit but is good without any averment that the Executors have assets over the payment of Debts due by specialty and Legacies and he sayd that the Record of the Case of 22 H. 8. with this agrees and that the book in this is misprinted and so Coke cheife Justice who publickly reported this Judgment in the Common place sayd which was adjudged in the 11 H. 8. in this Court Note that Land of which a Writ of Right Close lyeth shall be assetts in a Formedon and it is a Free-hold and not a Copy-hold and so are all Lands in ancient Demesne 3 Ed. 3. 14 H. 4. It is no matter what is known to the Judge if it be not in the form of Judgment Pasche 1611. fol. 50. HAughton Serjeant for the Defendant argued that the entry of him in Remainder is not lawfull insomuch that he intended it is not any forfeiture of the Estate tayle and first he argued that the condition is not good but repugnant to Law and for that voyd and yet he agreed that Tenant in tayl may be distrayned from making unlawfull Acts but here the condition tends to restraine him from doing of things which are lawfull as if a man makes a Gift in tayl upon condition that the Wife of the Donee shall not be indowed or that the Husband of the Donee shall not be Tenant by the Curtesie or that a Feoffee shall not take the profits of the Land though that the profits may be severed from the Land as in 16 Ed. 3. Formedon was brought of the profits of a Mill yet the condition is voyd insomuch that it is against the nature of an Estate tayl or in Fee-simple to be in such manner abridged so if a man makes a gift in tayl upon condition that the Donee shall not make waste the condition is void for the making of wast is a priviledge which is incident to an Estate tayle and for that the condition restraynes the Tenant in tayle of a thing which the Law inables him to do the condition is yoyd so a Donee in tayle upon condition that he shal not make a Deed of Feoffment or Lease for his own life as it is agreed in Mildmayes Case so here when the condition restraynes Tenant in tayl of concluding and agreeing the which in him is not any wrong no more then if a man should make a gift in tayl upon condition that the Donee should not bargaine and sell the Land this is voyd insomuch that he doth not make any wrong or discontinuance So in the case here for the thing which is restrayned that is concluding agreeing is in it self a lawfull act and also this is only the affections and qualities of the minde that they cannot make an Estate conditionall if an open act be not annexed unto it but he agreed that if a man make a gift in tayle or a Lease for life of white acres upon condition that the Donee or Lessee shall not take the profits of Black acre this is
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
concluded and praied Judgement for the Plaintiffs Wynch Justice that the Count is not good for the Plaintiffs have not alledged that they have used time out of mind c. To maintaine Ferrey but only that they have used to make Constitutions Secondly it is not alleadged that they onely have used to maintaine Ferrey and if they cannot prescribe in the sole using of that and to exclude others then others may use that as well as they being for the publick good for how shall they be punished if that they do not use and maintaine at the Common Law the Inhabitants of a Towne shall be punished for not repairing of a Bridge or high Way the which may be maintained by the Inhabitants together and if they do not do it then others may do it as well as others may repaire high Waies or Bridges as those which have used to repaire them as a common Host shall be punished in Eyre if he refuse to lodge any man and yet he which he refused to lodge may have an Action upon the Case for the refusall Also the Patent gives the forfeyture to the Port-reeve but the By-Law doth not make any mention who shall have it and he conceives that it shall not be as upon the Statute of 2. Ed. 6. Which gives penalty for not setting forth of Tythes but doth not appoint who shall have them and this was adjudged to be to him which ought to have the Tythes but this cannot be so here insomuch that it is against the Grant and agreed that a stranger shall be bound by By-Law where it is for the publick good but not otherwise and also the custome that these Bardge-men shall have the preheminence may be good as well as custome that the poore of such a Parish shall have common in such a place till such a day and then the others and so in this case and so he concluded that Judgement shall be Arrested Warburton Justice conceived that the Count is good and that the Inhabitants may prescribe very well as 47. Assis foure Townes were charged for the repaire of a High way and so may the two Townes for the Ferrey that he intended to be high way upon the water and also he conceived that this is inquirable in Eyre and also by the Justices of the Kings Bench and now by the Justices of Assises by Indictment by the name of Inhabitants The which may be as good an Action upon the Statute of Winton against the Inhabitants of the Hundred and so he conceived that in this case the Inhabitants of Milton and Gravesed may be punished by Indictment if they do not repaire the Ferrey and that the King there this day may erect a Ferrey in place where it is necessary for the King may erect office which is for the benefit of the Common Wealth but not to charge the Common Wealth And that if any will passe in his owne Ferrey without carrying of another this is no breaking of the By-Law and so he concluded that Judgement should be given for the Plaintiffs Coke cheife Justice seemed the contrary for he conceived it is not shewed in the Count to whom the Ferrey belongs for the owners of that are not mentioned the which it ought And yet he agreed that a Ferrey may be without owner as it is agreed 12. Ed. 4 8. Insomuch as this is locall and need not any Agent but out of Leete and Ferrey otherwaies it is for there ought to be Agent or otherwise the Ferrey should be of no use and for that there ought to be an owner Secondly it is alledged that Infra Easterne Townes there is such a custome that the Inhabitants may make constitutions and that the Inhabitants shall maintaine a Ferrey but not that there was a Ferrey but that he conceived it might be good insomuch that it is not traversable Thirdly what Action the Inhabitants may have if they be disturbed of it for this is no easement and they have no Estate of Inheritance and for that the Prescription by the name of Inhabitants is not good for they cannot have Estate and to the Satute of 6. H. 6. chapter 7. Which saith it is a laudable custome and usage that a Bardge shall be maintained but not that Inhabitants shall maintaine that nor those incorporate so that the Statute doth not make them capable of such a thing for which a Writ of right and assise by the Statute of Westminster 2. lies Fourthly That the custome and the Patent are repugnant for by the custome the Bardge hath not any preheminence nor precedence but equall liberty was to all water-men to carry what passengers that they could and with that also agreed the Statute of 6. H. 6. And then if the custome were not so this cannot be made by the grant of the Queene nor by the By-Law for this is the liberty of the Subject the which cannot be abridged nor restrained by them for if the King may grant such prehâ—minence here so may he do in all other Ferreis and places and also in the practise of the Law to have preaudience in this Court and in all other Courts of Justice And so should it be also of Butchers and Bakers and all others which used buying and selling And he said that the King hath preemtion of time in some places but this is not by his prerogative but by the custome of the place And he agreed that custome in subject may have preemption but not by the Kings grant for the King cannot grant that to another that he himselfe hath not by his prerogative and perchance he which hath such grant will not come to Market till all the Market be ended and he conceived that the River of Thames is so publick that the King cannot restraine that by his grant no more then he can grant preheminence to a Coachman to carry people into the Streets of London The which is adjudged upon the matter in the 50. of Ed. 3. Toll 2. Where the King grants Toll for every one which passeth by a Common way And agreed that it was not good if it be in a Common Way or in a Common River for as it is resolved in the 22. assis 93. Every common River is as high Street and Common Waies and the passengers Way as the water increases and the Thames is a branch of the Sea and a common Street as it appears by Bracton fol. 8. 5. The Plaintiffs have brought their Action by the name of Corporation of Port-reeve Jurats and Inhabitants of Milton and Gravesend and they are incorporate by the name of Port-reeve Jurates and Inhabitants of Gravesend possessors of Ships the which words are left out in the name by which the Action is brought so that the By-Law is not made by the same name by which they are incorporate nor the Action brought by the same name And yet he agreed that they might make a By-Law according to the grant without calling all the
is a stranger and doth not know if these Defendants are Executors or Administrators as it is said by Danby 9 Edw. 4. 13. And he conceived that the plea is good that the Defendants have not goods besides the goods which do not amount c. And divers presidents were cyted by him to this purpose as Trin. 18. Eliz. Rot. 1405. between Blanekson and Frye Hillary 40 Eliz. Rot. 902. Smalpeeces case and Trin. 44 Eliz. Rot. 1900. between Goodwin and Scarlet in all which the pleadings were all one with the plea in question and no exceptions taken to that and infinite other presidents may be shewed in the point for which cause he demanded Judgment for the Defendants Coke cheife Justice seemed that in an action brought against one as Executor he may plead that Administration was committed to him for such intent that the dead dyed Intestate and demands Judgment if action without traverse that he was Executor and with this agreed 1 Ed. 4. 2. a. 20 H. 6. 23. And so if the Ordinary be charged as Executor he may plead that he administred as Ordinary without traverse that he was Executor but only shewed that the party dyed Intestate and the Plaintiff ought to reply that he made a Will and the Defendant proved that and traverse that he dyed Intestate and with this agreed 9 Edw. 4. 33. and 1 Edw. 4. 11. And if an action be brought against Executor of his own wrong hee may plead that administration is granted to such an one and the Party dyed Intestate and demand Judgment if action for he shall not be charged for more goods then came to his hands But if a man administer of his own wrong and after rightfull administration is committed to him yet he may be charged as Executor of his own wrong insomuch that Right of action is attached in him But this seems for the goods that he hath administred before rightfull administration committed unto him And he cyted 14 Eliz. Dyer 305. b. where in debt brought against one as Executor which pleads never Executor nor ever administred as Executor and the Plaintiffe replies that he administred as Executor of the Will c. and so to Issue And in Evidence the Defendant shews Letter of administration to him committed of goods of the dead by which he administred them and before that he did not administer and this seems there to be good Evidence but the Book was Quere of that and for that he would rather plead that in abatement of the Writ and so the Book inclined also And he conceived here that the medling with the goods here by the Defendant as Administrator made him Executor of his own wrong insomuch that it was for Funeralls and when it is a work of Charity and the other is to preserve them And the Defendant hath not conveyed himselfe to be Executor insomuch that he said that administration was committed to him by an Arch-Deacon and he doth not say that Administration of right belonged to him to commit insomuch that hee hath but a sub-ordinate Jurisdiction And the Common Law doth not take notice that he nor no other but the Ordinary hath such power and for that the power of all which have such subordinate and peculiar Jurisdiction is pleaded that ought to be shewed as it seems by 1 Ed. 4. 2. a. b. 22 H. 6. 23. And the rather when this is pleaded by the Administrator himselfe which ought to have notice of that and make title to himselfe and if so it be then he conceived that the Recovery by Hornego was void and so all the goods confest remain as Assets Also he conceived that if the Executor allow a Writ to suffer Judgment to be had against him upon a Writ which is abateable he shall not have allowance of that but this shall be returned as Devastavit as in 10 Edw. 3. 503. a. If the Tenant vouch when he might have abated the Writ he shall lose the benefit of his Warranty So here and Com. Manwells case 12. a. 22 H. 6. 12. 〈◊〉 Also he conceived if a man be charged as Administrator where he is no Administrator he cannot plead that he never administred as Administrator but he ought to traverse the Commission of Administration as it appears by 21 H. 6. 23. And it seems also to him and by 9 Edw. 4. 33. that if a man be an Executor of his owne wrong and after administration is committed to him and he is charged as Executor after administration committed that the Writ shall abate otherwise if administration be committed hanging the Writ So if a man be made Executor and hee not knowing of that Iues letters of Administration he shall be named Administrator and if after when he hath notice of the Will he proves it then he shall be impleaded by the name of Executor for in such manner as the power is given to him by the Bishop he shall be charged and it seemes though that he plead where he is Administrator and is sued as Executor or otherwise in such manner that hee might have abated the Writ or suffer Judgment yet the Writ shall abate and he intended also that Executor of his owne wrong might pay debts due to another and shall be discharged and shall not be charged with more then he hath in his hands And if two Executors are joyntly sued and one confesse the action this shall bind him and his companion also for so much as he hath in his hands But if an Executor of his own wrong confesse the action this shall not prejudice him which is rightfull Executor and so he conceived that judgment ought to be given for the Plaintiff Warburton Justice conceived that the Barr is good notwithstanding that he did not shew that the Arch-Deacon had power to grant Administration insomuch it is no Inducement and the Defendant doth not relie upon it as Littleton saith in Trespasse where the Defendant pleades that it was made by two and the Plaintiff releases to one and if the Defendant pay due Debts it is not materiall whether he have Authority or not though that it be in another respect As if a man be Indicted of man-slaughter and aquitted and after is Indicted of Murder by the same man he may pleade another time aquitted insomuch that these are matters of substance But here it is but of forme and then if it be not shewed it is not materiall But the matter upon which he relied was insomuch that the Action was brought against two Executors and one hath confessed the Action And he intended without question that if this shall bind his companion and for that he will not dispute the other questions but declares his opinion cleerely that the Plaintiff ought to have Judgement against both these Defendants upon the confession of one and this shall bind his companion Wynch Justice conceived that the Plea is good by Administrator without traverse insomuch that it is to the Writ as it
defects and with this agreed the expresse Booke of 11 Edw. 3. Fitz. Ayde 32. and so he concluded that it should not be granted Warburton Justice doubted and insomuch that the granting of ayde where it is not grantable is no error but otherwise of the denying of that where it ought to be granted he would be advised But he conceived that the cause for which ayde is granted is not the feeblenesse of the Estate of him which prays it onely but to the intent that they may joyne together and one defend the other for Tenant for life may plead some Plea which he in reversion may plead saving the joyning of Issue in a Writ of Right and he had a Manuscript of the 11 Rich. 2. where Tenant for life the remainder for life the remainder for life was and the first Tenant for life had ayde of them both in remainder and so concluded Coke cheif Justice that aid ought not to be granted in this Case insomuch that he which is the first Tenant hath greater Estate then he in Remainder for his Estate in Remainder is more Remote and uncertaine and to the Book of 11 R. 2. He agreed that the ayd was granted of all in Remainder but there they in Remainder had Estate tayle and he sayd that ayd is to be granted in two Cases in personall Actions to maintain Issue and when Tenant for life prays in ayd of him in Remainder or Reversion without which they cannot answer nor plead nor Issue cannot be deduced but so it is not here for the first Tenant for life may answer and plead to the Issue as well without him in Remainder for life as with him for if Tenant for life Remainder in tayl Remainder in fee if the first Tenant for life be impleaded he shall have ayd of him in Remainder in tayl otherwise if the Reversion had been to the first Tenant for life with a mesne Remainder in Tayle 41 Ed. 3. 42 Ed. 3. 10 Ed. 3. And 11 Ed. 3. Receit 118. Tenant for life Reversion for life Remainder in fee was he in Reversion for life shall be received upon default of the first Tenant for life and if he will not then he in Remainder in fee shall be received and yet he shall not have Wast as it appears by 24 Ed. 3. for this destroyes the first Estate but the receit maintains and preserves it and he sayd that the 11 Ed. 3. Ayd 32. before cited rules this case and so of 4 H. 6. And so he concluded and insomuch that Warburton doubted of it it was adjourned Trinity 10. Jacobi 1612. In the Common Bench. Yet Rowles against Mason See before 57. WINCH Justice argued that the Defendant is not guilty and that the Plaintiff shall take nothing by his Writ for he conceived that the verdict is uncertaine insomuch that it is not found that Livery and Seisin was made upon the Lease for three lives of the Mannor but onely one Memorandum that it was made in the house of the Lord but it is not found that this House was parcell of the Mannor but after it is found that the Lessee by force of this was seised by which it is implyed that it was very well executed and this being in speciall verdict would be very good he conceived there were two principall matters in the Case First Upon the Bargaine and Sale of Trees if they be re-united to the Mannor or remaine undivided Secondly Upon the two customes the which he conceived depend upon a question for the first warrants the second And to the first When a man devises a Mannor for three lives and by the same Deed in another clause bargaines and sells the Trees and then insues the Habendum and this is of the Mannor only and limits Estate of that for three lives without mention of the Trees hee conceived that the Trees passe before the Habendum absolutely and it is not like to a Bargaine and Sale of a Mannor with Trees or Advowson appendant and here the purpose and intent appeares that they shall pass together and as appendant But in the first case they shall passe as a Chattell immediately upon the delivery of the Deed before any livery made upon this to pass the Mannor and if Livery had never been made yet he shall have the Trees see 23 Eliz. 379. 18 Dyer Where a man devises and grants a mannor and trees Habendum the Mannor for one and twenty yeares without mention of the Trees and yet by Windham Periam and Meade against Dyer the Lessee cannot cut and sell the Trees for there was all in one sentence that is the grant of the Trees and the Demise of the Mannor see the 8 Coke Pexells Case how a Grant shall be construed and where that shall be intended to pass Inheritance and where to pass but a Chattell where a man grants a Chattell and ten pound yearly to be payd and in 7 Ed. 4. If a man hath Inheritance and a Lease in one Town and he by one and the same Deed gives Grants Bargaines and sells all to one Habendum the Inheritance to him and his Heires this is no forfeiture of the Lease insomuch that the Fee doth not passe of that so in the Principall Case Fee-simple passeth in the Trees and Free-hold in the Mannor and he conceived that by the Demise over the Land and Trees are not re-united and this he collected out of Herlackendens Case 4. Coke and 12. Eliz. Bendlowes a man made a Lease for anothers life and bargaine and sold the Trees to him for whose life Lessee dyes he for whose life becometh occupant of the Land he shall have severall Estates one Estate in the Land and another Estate in the Trees and so in Ives Case 5 Coke 11. a. Lessee takes a Lease first of Land except the woods and after takes a Lease of the Woods and Trees and they remaine distinct and though that after there are generall words in the Lease that is of all Meadowes Pastures Profits Commodities c. That is not materiall for these shall be referred to all such things which belong to the Land and so he concluded this point that the Trees remain severall from the Land and do not passe to Hoskins by the Demise of the Copy-hold only and so he cannot take advantage of the forfeiture otherwise he did not doubt but that the particular Sum might take advantage of the forfeiture Secondly for the customes he conceived that the first that is that the Copy-holder for life might nominate his Successor and is good and so for the second that such Copy-holder may cut and sell all the Trees growing upon his Copy-hold and he conceived that the validity of the custome ought to be adjudged by the Judges and the Truth of that by the Jury and when it is found true by a Jury and that it hath such antiquity that exceeds the memory of man then this obtaines such priviledge as 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
this shall passe for him which pleads the demise of the Mannor Then if in Judiciall proceeding the Law makes such favourable construction to make that passe by a Mannor which is no Mannor in truth because it hath been usually known by the name of a Mannor then it seemes to him a Fortiore that no more beneficiall construction shall be made in conveiances which allwaies shall be construed to the intent and meaning of the parties and so it seemes to him that the Common remaines and Crooke Yelverton and the cheife Justice Flemming conceived that in reason he shall have the Common but they did not give any absolute opinion as to that But Williams Justice to the contrary and that the Lessee for yeares cannot have more then he contracted for in his Lease and then the Vsitatum void and the Lessees have taken that by wrong And this Grant having reference to a void and wrongfull usage is not good and it is adjourned Hillary 7. Jacobi 1609. In the Kings Bench. Stydson against Glasse Stydson brought an Ejectione Firme against Glasse and upon speciall Verdict the case was this that is That one Holbeame was seised of the Land in question in Fee and made a Lease for life to Margret Glasse and after covenanted with John Glasse Husband of the said Wife Lessee that before such a day he would Levie a Fine to A. B. and to the Heires of A. of the same Lands which Fine should be to the use of the said Glasse for sixty yeares to begin after the death of the said Margeret Glasse with Proviso within the same Indentures that if the said Holbeame at a certaine day should pay to the said John Glasse a hundred pounds that then the Lease should cease and then of that the Conusees should stand seised to the use of the said John for his naturall life and after the said Holbeame disseised the said Margeret Glasse the Lessee and made a Feoffment to the use of himselfe and one Alice with whom he intended to marry and to the Heire of their two bodyes begotten the remainder to the right Heires of the Feoffor and after the sayd Feoffor and Alice intermarried and after the said Holbeam tendred a hundred pound to the sayd John Glasse the Lessee for years and after the sayd John Glasse assigned over his Tearme and after the sayd Holbeam by Deed indented and inrolled bargained and sold the said Land to the said John Glasse and his Heir and after Iohn Glasse dyed and the Inheritance discended to the said Margeret Glasse Lessee for life the Conusor dies his Wife enters and lets to the Plaintiff the Defendant enters upon him and the Plaintiff re-enters and brings Trespass against the Defendant which justifies as servant to the Assignees of the Tearm and if upon all the matter c. And it was argued by Nicholls Serjeant for the Plaintiff and he moved three points in the case First if by this feoffment upon such condition as this is had been Extinct at the Common Law or remaines to the Feoffor notwithstanding the feoffment for if he have interest in the Land then it is extinct by the Livery for it is given of the Feoffor and past out of him and yet the Feoffee cannot have and for that it is extinct but if it were but Authority as in 15 H. 7. Authority to sell the land of the Devisor then the Authority remaines and is not extinct by the Feoffment of the land so power of Revocation to a stranger which is but authority is not extinct by a feofment Albaines case Coke 112. a. But if it be right in Interest then it is extinct by the feofment as power of revocation to the Party himself resolved to the point in Albains case so of Title to a Writ of Deceit 38 Ed. 3. So of a title to be Tenant by the Curtesie 9 H 7. 1. But by 42 Edw. 3. by a Feoffment made by a Parson of Land of his Rectory the Tythes of that Land are not extinct but remaines notwithstanding the Feoffment for that it was collaterall to the title of the Land as the Cases of Authority are which were put before then if this power to alter a Lease by payment of a hundred pound be not any right nor Interest but a collaterall power and the authority not extinct by the Feoffment but remaines but admitting that it is in nature of an ordinary Condition and that before the Statute it should be extinct by the Feoffment for that it is the gift of the Feoffor and yet it is not transferable to the Feoffee If now by the Statute of 32 H. 8. which inables Grantees of reversions to take advantage of Conditions if the condition be not transferred to the Feoffees and so over to he to whose use that then by consequence this remaines to the Feoffor which was the he to whose use and then the tender of the money after well may alter the Lease it seems that so for before the Statute if a Lease for yeares had been made upon condition to cease and after the Lessor enters upon the Lessee and makes a Feoffment and the Lessee re-enter and breakes the condition the Feoffee shall take advantage of that condition being by way of ceasing of an Estate so after the Statute the Feoffee of the Lessor shall take advantage of the condition of Re-entry and of every other condition annexed to the reversion as well as of one condition to cease before the Statute and as well that every Grantee shall doe since the Statute for though that he comes in by Feoffment which is wrong to the Lessee yet after the re-entry the Lessee is in nature of a Grantee And he cyted the Case of Clyfford Error 7. Ed. 6. to be that Lessor entred upon his Lessee and made a Feoffment if the Lessee re-enter the Rent and the Condition are revived againe and the Feoffee shall have both see Cliffords Error 7. Ed. 6. Dyer the last case and 1. M. Dyer 96. 43. but there is not any such matter and for that it seemes that he hath another report of this case of Cliffords Error or otherwise he meant some other case and not Cliffords Error so is our case the condition being inherent to the reversion shall passe with the reversion be that by grant or feoffment and when the reversion is revived by the entry of the Lessee the condition shall be revived also and it is the more strong insomuch that the Condition is that upon the payment of the money the Lease for years shall cease and not that the Lessor shall re-enter that such Feoffee shall take advantage of a condition by way of ceasing of that at the Common Law 2. point and for the second point he would not argue against that that he took to be cleer and for that he conceived the Law to be against his Clyent in this point though that after the Disseisin and Feoffment the free-hold could not accrue
of the Lessor But he agreed the case of Littleton that an Assignee of an Estate may perform a condition in preservation of an Estate otherwise of an Assignee of a Reversion in destruction of an Estate so at the Common Law it is clear that the Feoffee cannot perform the condition and by him it is cleerly out of the Statute of 32 H. 8. for this Statute doth not extend to a collaterall condition as it appears by Spencers case 5. Coke and so hath been many times after this adjudged and this is a collaterall condition Ergo c. And so concluded and prayed Judgment for the Defendant Nicholls Serjeant to the contrary and that this Disseisin hath not suspended the condition but that he may pay the Money and make the Estate to cease notwithstanding the Disseisin for-that that the condition is collaterall like to the 20 of Ed. 4. and 20 H. 7. That where a Feoffee upon a collaterall condition takes back an Estate for years yet this shall not suspend the condition but it may be performed or broken notwithstanding the Lease for that that it is collaterall so in our case for suppose that the condition had been if he marry Mistris Holbeam that then his Estate shall cease and as well it shall be upon the Tender of the Money here and he said that this case was late in the Common Bench. This feoffment was made to the use of the Feoffor for life Remainder to another for life the Remainder to the third in tayl the Remainder to the right Heirs of the Feoffor in fee with power of Revocation and after the Feoffor lets for years and during the Tearm he revokes the mesne Remainders and it seems to the Justices that well he may for that that the Lease for years goes only out of the Estate for life as he sayd and for that the power of Revocation as to the Mesne Remainders was not suspended Quere of the truth of this case in the common Bench for perchance it is not truly collected but so entred and so he prayed Judgment for the Plaintiff Flemming cheife Justice sayd that the point of the principall case would be if by the wrong of the Lessor the Estate of the Lessee shall be prevented to accrue then he might perform the condition to determine the ancient Estate that is the Lease for years and it is adjourned Pasch 8. Jacobi 1610. In the Kings Bench. Earle of Shrewsbury against the Earle of Rutland IN a Writ of Errour the Earle of Rutland brought an Assise of Novel Disseisin against the Earle of Shrewsbury and four others and the Plaint was of the office of the keeping of the Park of Clepson and of the vailes and fees of the sayd Parke and of the Herbage and Paunage of the same and the Demandant made his title and alledged that the Queen Eliz. was seised of Clepsam Park in fee in right of her Crown and that she being so seised by her Letters Patents under the great Seal granted unto one Markham the keeping of the Park of Clepson with the vailes and fees and the Herbage and Paunage of the same Park for his life after the Queen Eliz. reciting the Grant made to Markham and that Markham was alive gave and granted by her Letters Patents to the Earl of Rutland the Office of the keeping of the sayd Clepson Parke with the Fees and Wages to that appertaining to have and to hold to him for his life after the death of Markham or after the surrender or forfeiture of his Letters Patents and further granted the Herbage and Paunage to the sayd Earle of Rutland for his life and doth not say when this shall begin after which the Queen Eliz. died and the Eee-simple discended to our Lord the King which-now is as lawfull Heir to the Crown of England which granted that to the Earle of Shrewsbury after which Markham dyed and the Earle of Rutland entered and was seised till the Earle of Shewsbury with four others entered upon him and dissersed him and to that the Tenants alledged no wrong no disseisin and when the Assise was to be taken in the Country the Array was challenged by the Tenants for that that one of the Tenants in the Assise had an Action of Trespasse hanging against the Sheriff and this challenge was not allowed and the Assise being perused at large for the Herbage and Paunage they found that the said Queen Eliz. was seised of Clepson Park as aforesaid and by her Letters Patents as afore is rehearsed granted the Keeping of this to Markham for his life and further by the same Letters Patents granted to him the Fees and Wages to that belonging and further granted by Letters Patents and doth not say Easdem to him the Herbage and Paunage of the sayd Park and that the Queen after the reciting the Grant made to Markham and that Markham was alive granted to the Earle of Rutland the keeping of the sayd Park and vailes and fees to have and to hold after the death surrender or forfeiture of the Letters Patents of Markham for his life And further by the sayd Letters Patents shee granted the Herbage and Paunage of the same Park to him for his life as more fully appears by the Letters Patents and it was not expressed as to the Herbage and Paunage when that began and they found the death of Markham and that the Earle of Rutland put two Horses into the sayd Park to take seisin of the sayd Herbage and Paunage and they found further the grant of the King to the Earle of Shrewsbury of the fee-simple and of that prayed the advise of the Court and to the keeping of the Park they found the seisin and disseisin of that and of the fees and wages to the Dammages c. And this being adjourned into the Common Bench was remanded into the Country and there Judgment was given for all for the Demandant and after this it came into the Kings Bench by Writ of errour and the Errours assigned by the councell of the Tenants and argued at the Barr were foure The first was that the Earle of Rutland himself between the verdict and the Judgment hunted in the Park and kild a Buck and took a shoulder of that for his fee and so he hath abated his Assise and so the Judgment was given upon a Writ abated and therefore they cannot plead that in abatement insomuch that it was mesne betwixt the Judgment and the verdict they assigned that for errour The second was because the principall challenge was not allowed where that ought to have beene allowed and the challenge was that one of the Tenants had an Action or Trespasse hanging against the Sheriff before the Assise The third was Because the Jury have found the Letters Patents made to Markham and that the Queen granted to him by her Letters Patents the custody of the Parke of Clepson in Clepson And further by the same Letters Patents granted the vailes
and fees c. And further granted the Herbage and Paunage and have not found that this was granted by the same Letters Patents and then if this be not granted by the same Letters Patents then there is not any grant of this to the Earle of Rutland because there is no receitall of the Patent by which the Herbage and Paunage was granted to Markham The fourth errour was that they have erred in point of Law and to that the point is but this the King grants the Herbage and Paunage of a Park to one for life and after reciting that grant and that the Patentee is alive grants that to another and doth not say when that shall begin and it seems to them that the Argument for the Plaintiffes in the Writ of errour that this was a voyd grant and so the Judgment erronious but I have not the Report of the Arguments of the Conncellors at the Barr but only of the Judges which moved two other errours in the case not moved by the councell at the Barr and Crooke Justice rehearsed the case as before And to the first errour he conceived that this is no errour and that for two reasons First He tooke a difference betweene a thing which abates the Writ by Plea as if a man brings an Assise against another and mesne between verdict and Judgment the Plaintiff dies this matter shall abate the Writ without Plea and for that if Judgment be given upon such verdict the Judgment is erronious but in our case an entry doth not abate the Writ without pleading that and now as this case is this cannot be pleaded being between Verdict and Judgment and for that it shall not be assigned for Errour see 19 Assise 8 Where this difference is taken and agreed Secondly Admit that this entry might have abated the Writ in Facto without Plea yet there is no such entry alledged which might abate the Writ in Facto without Plea for the entry is alledged that the Earl of Rutland entred to hunt and kild a Buck and took a shoulder of that for his fee and it seems that this is no such entry that shall abate the writ for he hath now entred to another purpose to hunt the which he could not do but the entry ought to have been alledged that he entred to keep for in every entry the intent of the Entry is to be regarded and to this purpose he cited the case of Assise of Freshforce Com. 92. and 93. Where entring into the Seller hanging the Assise of that to see the Antiquity of the House there was no Entry to abate the Writ and the case of 26 Assise 42. where the Disseisee hanging the Assise comes and sets his foot upon the Land but takes no profits and adjudged that he should recover notwithstanding so in this case the intent is not shewed that is that he entred to keep possession but to hunt nor was it such entry which should abate the writ and to that which is sayd that he kild a Buck and took the shoulder of that for his fee this doth not help for if that had been a Buck which he might to have kild by vertue of his Office he ought to have shewed his warrant for otherwise a Parker cannot kill a Buck if not that it be for his fee and then he shall have the Buck and not a shoulder only also it is alledged that he took a shoulder and doth not say the best shoulder or the right shoulder and this ought to be shewed in certain And so for he first Errour he couceived that this is no cause to reverse the Judgment and to the challenge he sayd that he would speake to that at the last and for that he now spake to the errours supposed in the grant And first to Markhams Grant where the Jury found the Queen Eliz. granted to him the keeping of the Park and by the same Letters Patents grant the fees and Wages and further granted by her Letters Patents and doth not say Easdem the Herbage and Paunage it seems to him that this is very well for two reasons First insomuch that there is a copulative which is this word Et and also a Relative which is this word Vlterius and this word conjoynes the matter precedent with the subsequent and the word Vlterius hath necessary relation to the same Letters Patents and so Ex precedentibus subsequentibus the Iury hath well found the matter Secondly these words are supplied in the second Patent for there the Jury have found that the Queene hath granted that to Marham by the same Letters Patents and so for these two reasons he concluded that this is no Error to reverse the Judgement And to the Patent made to the Earle of Rutland it seemes to him also that this is very good and all that he said in effect was that in construction of the Patents of the King such exposition is to be made that if any reasonable meaning may be conceived they shall not be defeated but shall stand good And so he said in our case that it is necessarily intended that this was also to begin after the Estate of Markham determined and for that good And he said that a man ought not to make a curious and captious interpretation of the Kings Patents for Talis Interpretatio injure Reprobatur And to the challenge that seemed unto him a principall challenge and this not being allowed where it ought to be allowed this is an error as it is said 8. of Assises 23. and for this error it seemes to him that the Judgement shall be reversed and to that he said he relied much upon the book of 11 H. 4. 25. which takes a difference between Debt and Trespasse for battery for the booke saith that a man may demand his Debt without giving occasion of any malice But Battery is an evill Action and there the book is resolved that it shall be a principall challenge and so he saith in Trespasse this being with force and Armes that c. And in 8. H. 5. in a Assise the Tenant challenges the array because he had an Action of Trespasse hanging against the Sheriff And there the array was affirmed because it appeares that the Defendant had brought this Action by Covin against the Sheriff which case proves as he said that if there be not any Covin this is a principall challenge and 38 H. 6. 7. accordingly and the case 28. Assise 11. where the Defendant in Assise challenged a Juror because he had an Action of Trespasse hanging against him and was outed by award and in 21. Ed. 4. 12. it is said where there is an apparent favour or apparent displeasure there shall be principall challenge and certainly though the Law may intend that a man may lawfully demand his right and without malice yet it appeares that the nature of men is perverse and froward and few Actions are begun without apparent displeasure especially
Lessee for years or life surrender before the performance of the condition the Fee doth never increase as it is 14. H. 8. 20. and the Lord Chandois Case 6 Coke But the Estate tayl remaines after the condition performed and then hath the Fee dependant upon the Estate tayl and that there is a necessity that there shall be an office as it was in Nicholls Case in the Com because of the right and that after the condition performed then the Fee shall vest Ab Initio and this corporates together partly by the Letters Patents and partly by the performance of the condition and so it is in Butler and Bakers case that it is not a Grant in futuro but one immediate Grant to take effect In futuro see 2. H. 7. for the execution of Chantrey and Grendons Case in the Com. and 2. H. 7. If the King grant Land to J. S. for life the remainder to the right Heires of J. R. which is in life the remainder is good as well as in case of a common person and so he seemed that Judgement shall be given for the Plaintiff Walmesley Justice agreed that it shall be remainder and not reversion as if Lands begin to the Husband and the Wife and to the Heires of the Body of the Husband the Husband dies this is a remainder in the Heires Males and not a reversion for it cannot grow higher and it was not in the King as one distinct Estate before the Grant and Formedon in remainder lieth for it and though it be misrecited yet it shall be good and ayded by the Statute of Misrecitalls and grant of a thousand is suffered to convey the reversion of a thousand by the common Law and if the recitall were that it was a reversion depending upon the Estate tayl it was good without question and the King may grant five hundred reversions if he will and that the last Damus is ex certa scientia et mêre motu nostris Damus et concedimus that if the Patentee pay twenty shillings Tunc sciatis quod nos de ampliori gracia ea certa scientia et mero motu nostris concedimus c. and that the word Volumus will amount to a Covenant or a Release as 32. H. 6. The King by his Patent by these words Nolent that he shall be impleaded and this amounts to a release and so words which intends expresly words of Covenant may be pleaded as a Grant in case of the King as it is 25 Ed. 4 So is a common person license another to occupy his Land this amounts to a Lease of Land if the time be expressed so if a man grants to another that he shall have and injoy his Land to him and his Heires that by that Fee passeth And if the King grant reversion to begin at Michaelmasse the Grant is void for that it is to begin totally at Michaelmasse and doth not looke back to any precedent thing But if it relate to any precedent Act then that shall be good by relation and shall passe ab Initio see Com. Walsinghams Case 553. b. that in such case the performance of the condition divests the Estate out of the King and there is no difference in this case betwixt the King and a common person and agreed in the case of Littleton Where a man makes a Lease for yeares upon condition to have Fee that the Fee shall not passe till the condition be performed and with this agrees 2. R. 2. But if a man makes a Charter of Feoffment upon condition that if the Feoffee injoy the Land peaceably for fifteen years that the Feoffment shall be void In this case the Fee-simple determineth by the performance of the Condition and in this case the Fee passeth ab Initio by the Livery as in 10. Assise 18. Assise 1. 44. Assise 49 Assise And he agreed that the words Habeat et Teneat the Reversion passes and this is good Fee-simple and this refers to the first Damus et Concedimus and so concluded that he seemed that Judgement shall be given for the Plaintiff Coke cheife Justice accordingly and he conceived that there are two questions upon the substance of the Grant And to the first objection that hath been made that is that reversion was granted and increase of an Estate cannot be of a reversion and in all these cases which have been put they are of an Estate in possession and so is the case of Littleton also and he agreed that it shall not be good if it be not good ab Initio that though there be not other words then Reversionem predictam That it shall be good And to the second point upon the former He conceived that the Grant is but a Grant and that the condition is but precedent Limitation when the Estate of Fee-simple shall begin and so it is said by Montague in Colthurst and Brinskins Case in the Com. And further he saith that there are four things necessary for increasing an Estate First that it ought to be an Estate upon which the increasing Estate may increase Secondly the particular Estate ought to continue for otherwise it is grant of a reversion in Futuro Thirdly That the Estate which is to increase ought to vest by the performance of the Condition for if there be disturbance that it cannot then vest then it can never vest Foutthly that both the Estates as well the particular Estate as the Estate which is to increase ought to have their beginning by one self same Deed or by diverse Deeds delivered at one self same time And to the first and to prove that he cyted 44 Ed. 3. Attaint 22. Lessee for yeares upon condition to have Fee granes his Estate the Fee doth not increase upon the performance of the condition for then it shall passe as a Reversion and so the particular Tenant surrenders his Estate as it is sayd 14. H. 8. For if the Privity be destroyed the Fee will never increase but there is no such â—ycity but that if the substance of the Estate remains though it doth not remain in such form as it was at the first Reversion the Estate may well increase as if Lands be given to the Husband and wife and to the Heirs of the Husband upon the Body of the Wife to be begotten the Wife dies and the Husband is Tenant after possibility of Issue extinct yet he may well perform the condition for the Estate remaines in substance and with this agrees 20 H. 6. Ayd and so it is if a Lease be made to two for years upon condition to have fee one dies the other may perform the Condition and shall have Fee-simple as it is agreed by 12. Assise 5. the reason is that the privity remaines and the Estate also in substance Thirdly As to that also it seems that it ought to vest upon the performance of the condition which is the time limited for the beginning of the Estate and if it do not vest
all their Study is practise and that if they have no practise of themselves then they attend upon others which practise and apply themselves to know the nature of Simples And to third objection that in London ought to be choyce men for the Statute appoints that they shall be examined by the Bishop and Deane and four others at least and for that there is a more strict course for them then in other places to that it is agreed But he said that in the University there is a more strict course then this for here he ought to be publickly approved by many after that he hath been examined and answered in the Schooles to diverse questions and allowed by the Congregation house And 35. H. 6. 55. Doctor is no addition but a degree quia gradatim et progressâ—one Doctrine provenit to that and that Doctor is teacher and that he was first taught by others as Scholers afterwards he is Master and Doctor dicetur a docendo quia docere permittitur and they are called Masters of their faculty and that the Originall of Doctor came of the Sinagogue of Jewes where there were Doctors of Law and it appeares that they had their ceremonies in time of H. 1. And when a man brings with him the Ensigne of Doctrine there is no reason that he should be examined againe for then if they will not allow of him he shall not be allowed though he be a learned and grave man and it was not the intent of the King to make a Monopoly of this practise And to the second point that he propounded it seemes that the Justification is not good which is Quia non comperuit upon Summons he was amerced and ordered that he shall be arrested and being arrested being examined if he would submit himself to the Colledge he answered that he was a Doctor and had practised and would practise within the sayd City as he conceived he might lawfully do and for that shewing of this case he was committed to prison and he conceived two things upon the Charter First That it doth not inhibit a Doctor to practise but punisheth him for ill using exercising and making and may imprison the Emperick and Imposter and so prayed Judgment for the Plaintiff and after in Hillary Tearm in the same year this case was argued by all the Justices of the Common Bench and at two severall dayes and the first day it was argued by Foster Daniell and Warburton Justices at whose Arguments I was not present but Foster argued against the Plaintiff and Daniell and Warburton with him and that the Action of false imprisonment was well maintainable And the second day the same case was argued again by Walmesley Justice and Coke cheife Justice and Walmesley argued as followeth that is that the Statute of 3. H. 8. was in the negative that no person within the City of London or seven Miles of that take upon him to exercise or occupy as Physitian or Chirurgion c. And he doth not know in any case where the words of the Statute are negative that they admit any Interpretation against that but one only and that is the Statute of Marlebridge chapter 4. Which provides that no Lord shall distrain in one County and the beasts distrayned drive into another County in which case though that the words are uegative yet if the Lord distrain in one County he may drive the Beasts to his Mannor in another County of which the Lands in which the distresse was taken were held but it is equity and reason in this case that the Statute should admit such exception for it is not of malice but for that that the Beasts may remain within his Fee but in the principall case there is not the like reason nor Equity And also the King H. 8. in his Letters Patents recites as followeth that is Cum Regij officij nostri munus arbitremur ditionis nostri hominum felicitati omni ratione consulere id autem vel imprimis fore si Improborum conatibus tempestive occurremus apprime necessarium duximus improborum quoque hominum qui medicinant magis avaritiae sue causa quam ullius bonae conscientiâ— fiducia profitebantur c. By which it appears that it is the Office of a King to survey his Subjects and he is as a Phisitian to cure their Maladies and to remove Leprosies amongst them and also to remove all fumes and smells which may offend or be prejudiciall to their health as it appears by the severall Writs in these severall cases provided and so if a man be not right in his Wits the King is to have the Protection and Government of him least he being infirme wast or consume his Lands or Goods and it is not sufficient for him that his Subjects live but that they should live happyly and discharges not his Office if his Subjects live a life but if they live and flourish and he hath care as well of their Bodyes as of their Lands and Goods for Health for the Body is as necessary as vertue to the minde and the King H. 8. to express his extraordinary care of his Subjects made the said Act in the third year of his Reigne which was the beginning of his Essence to that purpose and by the Common Law any Phisitian which was allowed by the University might practise and exercise the sayd faculty within any place within England without any dispensation examination or approbation of any but after the making of the sayd Act made in the third year of King H. 8. none may practise exercise or occupy as Phisitian or Surgion within theCity of London and seven miles of that if he be not first examined approved and admitted by the Bishop of London and the Dean of Paules for the time being calling to them foure Doctors of Phisick or Chirurgions c. And that no practiser may occupy or exercise the sayd faculty out of the sayd Precincts if he be not first examined approved and admitted by the Bishop of the Diocess or in his absence by his Vicar generall every of them calling unto him such expert persons in the said faculty as their discretions thinks convenient and the reason of this difference as he conceived was for that that in this City and the sayd Precincts the King and all his Councell and all the Judges and Sages of the Law and divers other men of quality and condition live and continue and also the place is more subject unto Infection and the Heir more pestiferous and for that there is more necessity that greater Care diligence and examination be made of those which practised here in London and the precincts aforesayd then of those which practise in other places of the Realm for in other places the People have better aire and use more exercise and are not so subject to Infection and for that there is no cause that such care should be used for them for they are not in such danger and
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
against three Executors two of them are out lawed and the third pleads and Verdict against him and it was resolved that the Judgement shall be against all by the Statute of 9. Ed. 3. for they all are but one Executor and the Cost shall be against him which pleades if the others confesse or suffer Judgement by default And there shall be but one Judgement and not diverse see 17 Ed. 3. 45. b. 11 H. 6. Upon a Venire Facias awarded the Sheriff returnes but 21. and the Habeas Corpora was against 21. only and this was also returned and upon that ten appeared and upon this Tales was awarded and triall had and but ten of the principall Pannell sworne And this was Error but if twelve of the principall Pannell had appeared and served it seemes that it shall not be error for so it was resolved in Graduers case where twenty three were returned but twelve appeared and tryed the Issue and this was resolved to be good and no error Michaelmasse 7 Jacobi 1609. In the common Bench. Buckmer against Sawyer A Man seised of Land in Gaelvelkind hath Issue three Daughters that is A. B. and C. deviseth all his Land to A. in tayl the remainder of one halfe to B. in tayl the remainder of the other halfe to C. in tayl and if B. died without Issue the remainder of her Moytie to C. and her Heires and if C. died without Issue the remainder of her Moytie to B. and her Heires the Devisor dies A. and B. dies And the question was if C. shall have a Formedon in remainder only or severall Formedons for this Land And it seemed to all the Justices that one Formedon lieth well for all for that that it was by one selfe same conveiance though that the Estate come by severall deaths and this Action was to be brought by the Heire of C. after the death of C. See the three and four Phil. and Mary Dyer Note that after appearance of a Jury and after that divers of them were sworn others were challenged so that it could not be taken by reason of default of Jurors But a new Distringas awarded and at the day of the returne of that these which were sworn before appeared and then were challenged But no challenge shall be allowed for that that they were sworn before if it be not of after time to the first appearance Michaelmasse 7. Jacobi 1609 In the Common Bench. Baylie against Sir Henry Clare BAYLIE against Sir Henry Clare the Writ was of two parts without saying in three parts to be divided And it seemed to Nicholls Serjeant which moved this that it was not good but error But the opinion of the Court was that it was good See 17. Ed. 3. 44. 19. Ed. 3 breife 244. 17. Assise with this difference that if there are but three parts and two are demanded there it is good without saying in three parts to be devided for when parts are demanded it is intended all the parts but one and that it is only one which remaines see the Register fol. 16. 12. Assise And it was adjudged in the Kings Bench in the case of one Jordan that demand of two parts where there are but three parts is good see 39. H. 6. Salford against Hurlston in Formedon which demanded two parts where there is but three and so of three parts where there is but four it is good without saying in three or four parts to be divided But if a man grant his part this shall be intended the halfe for Appellatio partis dimidium partis contenetur and a Writ of Covenant ought to be of two parts without saying in three parts to be divided for so is the forme and if in such case in three parts to be divided be incerted the Writ shall abate see Thelwell in his digest of Writs 146. and by Coke if a man bring Ejectione Firme for ten Acres and by evidence it appeares that he hath but the halfe Ex vigore Juris it shall not be good but he said he would submit his opinion to the Judgement of ancient Judges of the Law which have often time used the contrary Note that the Husband may avoid his Deed that he hath Sealed by the duresse of Imprisonment of his Wife or Son But not of his Servant and so Mayor and Commonalty may avoid a Deed sealed by duresse of Imprisonment of the Mayor for it is Idemptity of person between the Husband and the Wife See 21. Ed. 4. and 7. Ed. 4. A man may avoid Seâ—sin for payment of Rent by coersion of distresse but not his Deed. Michaelmasse 7. Jacobi 1609. In the Common Bench. Payn and Mutton IN an Action upon the case by Payne against Mutton the Plaintif counts that the Defendant called him Sorcerer and Inchantor And agreed by all the Justices that Action doth not lie for Sorcerer and Inchantor are those which deale with charmes or turning of Bookes as Virgill saith Carminibus Circes socios mutavit ulissis which is intended Charmes and Inchantments and Conjuration is of Con et nico that is to compell the Divell to appeare as it seemes to them against his will but which is that to which the Devill appeares voluntarily and that is a more greater offence then Sorcery or Inchantment which was adjudged that Action doth not lie for calling a man Witch and said that he bewitched his Weare that he could not take any Fishes Dodridge the Kings Serjeant saith that an Action lieth for calling a woman gouty pockye Whore and said that the Pox had eaten the bottome of her Belly out and so it was adjudged that it lieth well for these words get thee home to thy pokey Wife the Pox hath eaten off her Nose But for the Pox generally Action doth not lie But if he saiâ—h that he was laid of the Pox then Action well lieth for then it shall be intended the great Pox. Note that in Prohibition and Replevin the Defendant may have nisi prius by Proviso without default of the Defendant for he himselfe is re vera Defendant and there are two Actors that is the Plaintiff and Defendant But the Court appointed that Presidents should be searched the Plaintiff is not bound to prosecute Cum Effectu in this Court as he is in the Kings Bench And it was agreed that the manner of Pleading was agreement as for Returno Habendo in the Replevin and Pro consultatione habenda in the Prohibition Michaelmas 7. Jacobi 1609. In the Common Bench Miller and Francis MYLLER Plaintiff in Replevin against Thomas Francis the case was Richard Francis was seised of Land held in Socage and deviseth that to John his eldest Son for a hundred yeares the Remainder to Thomas his second Sonn for his life and made his four other youngest Sonns his Executors and after made a Feoffment to the sayd uses the Remainder to the sayd John his eldest Son in tayl
is appurtenant or appendant the Grantee shall have Common Pro Rata but if a commoner purchase parcell of the Land in which he hath Common appurtenant that this extincts all his Common And it was agreed that Common may be appendant to a Carve of Land as it appeares by the 6 Ed. 3. 42. and 3. Assise 2. as to a Mannor but this shall he intended to the Demesnes of the Mannor and so a Carve of Land consists of Land Meadow and Pasture as it appeares by Tirringhams case 4. Coke 37. b. And Common appendant shall not be by prescription for then the Plea shall be intended double for it is of common Right as it appeares by the Statute of Morton chap. 4. And the common is mutuall for the Lord hath Right of Common in the Lands of the Tenant and the Tenant in the Lands of the Lord And it was urged by Nicholls Serjeant that the Common shall be apportioned as if it were Rent and that the Lessee shall have Common for his Lease and then the Lessor hath no Common appurtenant or appendant to the two Virgats of Land and for that the Prescription was not good Coke cheife Justice if it had been pleaded that he had used to have Common for the said Beasts Levant and Couchant upon the said Land there had been no question but it should be apportioned for the Beastes are Levant and Couchant upon every part as one day upon one part and another day upon another part and for that extinguishment or suspention of part shall be of all as if a man makes a Leafe of two Acres of Land rendring Rent and after bargaines and sells the reversion of one Acre there shall be an apportionment of the Rent as well as if it had been granted and attornment And he agreed that if a man have Common appurtenant and purchase parcell of the Land in which he hath Common all the Common is extinct but in this case common appendant shall be apportioned for the benefit of the Plow for as it is appendant to Land Hyde and gain And in the principall case there was common appendant for it was pleaded to be belonging to two Virgats of Land and for commonable Beastes And he conceived also that the prescription being as appertaining to such Land that this shall be all one as if it had been said Levant and couchant for when they are appurtenant they shall be intended to Plow Manure Compester and Feed upon the Land And also he conceived that the right of Common remaines in the Lessor and for that he may prescribe for after the end of the Tearme shall be returned and in the intermin he may Bargain and sell and the Vendee shall have it and shall have common for his Portion And Walmesley Justice agreed to that and that during the Tearme the Lessor shall be excluded of his Common for his proportion Foster Justice agreed and that the possession of the Lessee is the possession of the Lessor but he conceived when the Lessor grants to the Lessee six acres of Land in such a feild where the Land lies and then the Beasts were taken in another feild And so they agreed for the matter in Law and also that the pleading was ill and so confesse and avoid the prescription But upon the traverse as it is pleaded the Jury shall not take benefit of it and Judgement was given accordingly Termino Pasche 7. Jacobi 1609 In the Common Bench. THOU art a Jury man and by thy false and subtill means hast been the Death and overthrow of a hundred men for which words Action upon the case for slander was brought and it seemed to Coke cheife Justice that it did well lye if it be averred that he was a Jury man and so of Judge and Justice for Sermo relatus ad personam intelligo debet de qualitate persone as Bracton saith and in the like Action brought by Butler it was not averred that he was a Justice of Peace and resolved that an Action upon the case doth not lye But Walmesley Justice conceived that an Action doth not lye for one Juror only doth not give the Verdict but he is joyned with his Companions and it is not to be intended that he could draw his Companions to give Verdict against the truth and false and subtill means are very generall Warburton Justice agreed with Coke and conceived that the Action well lies being averred that he was a Jury man as if one calls another Bankrupt Action well lies if it be alledged that the Plaintiff was a Tradesman and it is common speaking that one is a Leader of the Jurors and a man may presume that other Jurors will give Verdict and may take upon him the knowledge of the Act. Walmesley conceived that the Action did not lye for that the words are a hundred men which is impossible and for that no man will give any credit to it and for that it is no slander and for that Action doth not lye no more then if he had sayd that he had kild a thousand men But Coke Warburton Daniell and Foster agreed that the number is not materiall for by the Words his malice appears and for that they conceived that the Action doth well lye Pasch 7. Jacobi 1609. In the Common Bench. Denis against More ANthony Denis Plaintif in Replevin William More Defendant the case was this Two joynt Lessees for life were the Remainder or Reversion in Fee being in another person he in Reversion grants his Reversion Habendum the aforesaid Reversion after the death surrender or forfeiture of the Tenant for life it hapneth that the Lease determines for the life of the Grantee and Remains to another for life and resolved that this shall be a good grant of the Reversion to the first effect of Possession after the Deaths of the Tenants for life according to the 23 of Eliza. Dier 377. 27. And it shall not be intended to passe a future interest as if it were void of the other party and so was the opinion of all the Court see Bucklers case 2. Coke 55. a. and Tookers case 2. Coke 66. Upon a Fine the first Proclamation was made in Trinity Tearm 5. Jacobi And the second in Michaelmas Tearm 5. Jacobi And the third in Hillary Tearm 6. Jacobi where it should be in Hillary Tearm 5. Jacobi And the fourth and fifth in Easter Tearm 6. Jacobi And this was agreed to be a palpable Errrour for the fourth Proclamation was not entered at all and the fifth was entered in Hillary Tearm 6. Jacobi where it should have been in Hillary Tearm 5 Jacobi and it shall not be amended for that it was of another Tearm and the Court conceived that this was a forfeiture of the Office of the Chirographer for it was an abusing of it and the Statute of 4. H. 4. 23. and Westminster 2. Are that Judgement given in the Kings Court shall stand untill
to viewers and searchers this doth not abridge the power of the Alneger for this is but an addition of greater care and diligence and by the statute of 39. and 43. Eliz. If upon a search they find any forfeyture they shall have it but if they do not find the Alneger may find it and then the King shall have it And to the Second he answered that true it is for every 64. of clothes the Alneger ought to have foure pence for his Fee and though that some peeces of cloth are more broade then others yet the lobour of the Alneger to measure them is all one So he concluded and demanded Judgement for the plaintiff Hillary 7. Jacobi 1609. In the Common Bench. Rutlage against Clarke IN Account the Plaintiff declares that the Defendant hath received of his money by the hands of a stranger to give an account The Defendant pleades in Bar that he received to deliver over to a stranger the which he hath done accordingly without that that he received it to make any of account otherwise then in this manner and it was resolved that the Plea in Bar was good without traverse for when he received the money he is to deliver it over or to give an account of it to the Plaintiff so that he is accountable Conditionally but the traverse is repungnant to the Plea though it be otherwise or another way against the Book of 9. Ed. 4. 15 See 41. Ed. 3. 7. 1. Ed. 5. 22. H. 6. 49 21 Ed. 4. 4. 66 1. Ed. 5. 2. that it is a good Bar without traverse But Brooke in abridging the case of 21. Ed. 4. 66 in Title of account saith that it seemes that the traverse ought to be without that that he was his receiver in other manner and there and in the Book at large are that Justices that is Coke Nele and Vavasor against Bryan that it ought to be traversed But here in the principall case it was adjudged that the traverse made the Plea ill Hillary 7. Jacobi 1609. In the Common Bench. Dunmole against Glyles THE case was this Grand-Father Father and Son the Grand-Father was possessed of a Tearme for two and twenty yeares to come devised to the Son the Land for one and twenty yeares and that the Father should have it during the Mynority of the Son and makes the Son his Executor and dies the Son being within the age of one and twenty yeares the Father enters into the Land and makes a Lease for seven yeares by Indenture untill the Son came to full age the Father makes his Son his Executor and dies The Son enters by force of the devise made by the Grand-Father And the question was if the Son shall avoid the Lease made by his Father and it was agreed that he might in proofe of which a Judgement was cyted which was in the Kings Bench Mich. 5. of Eliz. Rot. 459. or 499. In the Prioresse of Ankoresse Case where a Tearme was devised to one and if he died within the Tearme then to such of the Daughters of the Devisor which then should not be preferred the Devisor dieth the Tearme was extended for the Debt of the first Devisee and then he died the extent was avoided by the Daughters not preferred and they grounded their Judgement upon the former Judgements in Weltden and Eltingtons case and Paramores and Yardleys case in the Comment and for that the Law intends that a Devisor is Inops consillij and for that his devise shall have favourable construction according to his intent appearing within the devise and it was said by Coke that in many cases a man may make such an Estate by devise that he cannot make by an Act executed in his life time as it was adjudged in Graveners case where a man devises his Lands to his Executors for payment of his Debts that there the Executors have Interest that there the Executor of Executors shal have that and such Estate cannot be executed by Act in the life of the Devisor and so it was concluded by them all that the Son shall avoid the Lease made by the Father for the Devise was Executory and doth not vest till the full age of the Son and then Executor and shall avoid all Acts made by the Father by which Judgement was given accordingly Freeman against Baspoule See 9. Coke 97. b. THE case was this A. was indebted to B. and they both died the Heire of A. for good consideration assumed to the Administrator of B. that he would pay to the said Administrator the said Debt and for the not payment of that according to the Assumption the Administrator after brought an Action and then the said Heire and the Administrator submitted themselves to the award and arbitrement of C. and became bound one to the other to stand to the award accordingly so that the said Arbitrator makes his award of all the matters and controversies between them before such a day C. the Arbitrator before the day recyted the Assumpsit and the debt as aforesaid and agreed that the Heire should pay the Administrator so much money and that published according to their submission And in Action upon the case Nullum fecit Arbitrium was pleaded and upon demurrer it was objected that the award was void First For that it was for one party only and nothing was arbitrated of the other and to prove this the Book of 7. H. 6. 6. was cited and 39. H. 6. 9. see 2 R. 3. 18. b. And this also appeares by the pleading of an award for he which pleades it that he hath performed all things which are to be performed of his part And that the other pleades performance of all thing which are to be performed of his part by which it appeares that there ought to be performance of both parts and by consequence one award to both parties according to 22. H. 6. 52. Secondly that the award was void for that that the submission was of all controversies so that the Arbitrator delivered his award of all controversies c. And there was no award of the said Suit between the parties and for that he hath not made an Arbitrement of all controversies and by that the award was void and to prove that the Bookes in 4 Eliz. Dyer 216. Pumfreies award and 19. Eliz. Dyer 356. 39. and 39. H. 6. 9. Where it is said that if the submission were of all things and the Arbitrement of one only that is a void Arbitrement Thirdly For that it was not limited within the award at what day nor at what place the money should be paid by the Heire to the Administrator and for this cause also it shall be void for it ought to be payd immediatly and if the Heire cannot find the Administrator he forthwith hath forfeyted his Obligation and for that in this point it is uncertain and for that shall be void as it is in Samons case 5. Coke 77. b. Where