and Iudgment against the Plaintiff 8 E 4. 3. 21 E 4 2. Lit. 264. b. 20 E 4. 17. If the Debtee makes the Debtor and others his Executors the Debt is discharged Mich 9 Car. Banco Regis Rot 373. Anne Dorchester Executrix of Anne Row Dorchester and Webb Plaintiff against William Webb in Debt upon an Obligation of five hundred pounds the Defendant demanded Oyer wherby it appears that the Defendant and one John Dorchester were obliged joyntly and severally in the said Obligation The Defendant plead in Bar that the said John Dorchester made the Plaintiff his Executrix who proved the Will and had Goods sufficient in her hands to pay the said Debt The Plaintiff reply that before the death of the said Anne Row the Obligee she had fully Administred all the Goods of the said John Dorchester Demurrer and Iudgment for the Plaintiff And in this case it is not shewn that the said Francis and Peter or any of them proved the Will of the said Obligee or that they administred his goods or that they had any goods of the Obligor to administer at the time of the death of the Obligee as it ought to have been shewn And the said Francis Executor of the Obligee and also of the Obligor refused to be Executor to the Obligee and never Administred and never meddled with the Goods of the Obligee and so the Debt is not released in Law as by the said Case and former Iudgment appears This case had been often argued by Serjeant Hedley and of the other part by Serjeant Hitcham and affirmed that once Iudgment was given for the Defendant but it yet depends Trin. 12 Car. MEmorand Vpon Petition exhibited to the King by the Prisoners of quality which were in execution in the Fleet Liberty may not be given to Prisoners by force of a Habeas Corpus Kings Bench and Marshalsey to have liberty in the time of Infection and for preservation of their lives to have liberty by Writs of Habeas Corpus to go into the Country upon security to be given to the Warden and Marshall for their return The King out of his great care of their safety referred their Petition to the Lord Keeper Coventry and that he with the advice of the Iudges should consider by what way it might be done And the eighteenth day of June we attended the Lord Keeper at Durham-house And therupon conference and consideration of a former Resolution which was at Reading in Mich. Term last before the said Lord Keeper where were present all the Iudges besides my self That these abusive Habeas Corpus were not lawfull and that the Warden and Marshall were then called and warned that they should not suffer their Prisoners to go into the Country as they had used to do by colour of such Writs This which followes was subscribed WEE are of Opinion that the Writ of Habeas Corpus is both Ancient and Legall But as the Writ doth not so no Rule can Authorize the Keeper of the Prison to give liberty to his Prisoner by colour of such Writ but the same is an abuse against Law and an Escape in the Keeper if he let the Prisoner go by such Writ We find that neither in the twenty fourth year of Eliz. when the Term was Adjourned to Hertford Nor in the 34. of Eliz. in which year it was Adjourned to Hertford Nor in the 35. of Eliz. in which year it was Adjourned to St. Albans Nor in 1 Jac. in which year the Term was Adjourned to Winchester Nor in the first of King Charles in which year it was Adjourned to Reading In all which years there were great and dangerous Infections of the Plague there was no such course to set Prisoners out of Prison by Habeas Corpus but we find it a Novelty begun of late years But We think that if the danger of Infection shall grow so great as it shall be found necessary to provide for the safety of the Prisoners who may at all times provide for themselves by paying their Debts and yeilding obedience to Justice then a course may be taken that some certaine house may be assigned for the Warden of the Fleet in some good Town remote from the Infection and the like for the Marshall of the Kings Bench in some other Town where they may remove such Prisoners as have been Petitioners to his Majesty and there keep them as Prisoners Sub arcta salva Custodia as they should be kept in their proper Prisons and not to be as House-keepers in their own houses and by this means they will have the like to avoid the Infection as other Subjects have and not make the Infection a cause to abuse their Creditors or delude the course of Justice John Bramsion 1. Richard Hutton 2. George Crooke 3. George Vernon 4. Francis Crawley 5. Humph. Davenport 6. William Jones 7. Thomas Trevor 8. Robert Barkley 9. Richard Weston 10. To Sir John Bramston Knight Lord chief Justice of England My very good Lord I Have acquainted his Majesty with your resolution and your Brethren about Writs of HABEAS CORPUS his Majesty doth exceedingly approve the same And hath commanded me to let you know that his Majesty would not recede from that which you have certified And praies you and the rest of my Lords the Judges to observe it constantly attending to that resolution under your hands Hampton Court 19 June 1636. Your Lordships assured Tho. Coventrey C. S. Mich. 14 Car. MEmorand That 28. Aprilis 14 Car. Iustice Hutton argued in the Exchequer Chamber in the Case Adjourned thither upon a Scâ—re facias by the King against Hampden for Ship-money in which he was of opinion that as well for the matter as for the form upon divers exceptions to the pleading Iudgment should be given against the King Afterwards viz. 4. Maij. Thomas Hanson Batchelor of Divinity and Parson of Creake in Northamp came to the Court of Common Bench Iustice Hutton and Iustice Crawley then being there giving Rules and Orders and said Words against Justice Hutton I accuse Mr. Justice Hutton of high Treason for which he was committed to the custody of the Warden of the Fleet by Iustice Crawley and after by the direction of the King he was indicted in the Kings Bench and convicted and fined to five thousand pounds to the King And Iustice Hutton preferred his Bill against him there and recovered ten thousand pound Dameges Lord Digbies Case MEmorand That in the Parliament holden primo Car. It was resolved by the Iudges upon conference concerning the Lord Digby That when any Peer shall be proceeded against for Treason that ought to be by Indictment and that being done Where tryall of Treason by the Statute of 3 Jac. cap. 4. shall be and how then the King is to appoint a Peer to be Steward for the time and then to proceed to Arraign him or otherwise to transmit this Indictment by Certiorari to the Parliament and there
use of the said Robert and Isaac and their Heirs for ever by force therof and of the Statute 27 H 8. they were seised of the said Rent in Fee and after the said Robert died and Isaac survived and is yet seised Per jus Accrescendi and for Rent arrear c. and for the said forfeiture of forty shillings they avow wherupon the Plaintiff demur And upon Conference between the Iudges they all agreed that by this Fine which granted to Brook and Jermy and the Heirs of Brook to the use of Brook and Jermy and their Heirs that they were in by the Statute of 27 H 8. and were Ioyn-tenants of the Rent for otherwise there would be such a Fraction of the Estato that Brook should be in by the Common Law and Jermy by the Statute and that is not according to the Statute And it appears that the use was limited by the Fine it self and not by any Indenture And the principall reason is upon the Statute of 27 H 8. which is where two or three are seised to the use of one or two of them Cestui que uâ—e shall be adjudged to have such Estate in possession as they have in use Iudgment pro Defendent Memorand That in this Term a motion was made for the filing of a Writ of Entry in a Common Recovery suffered by Sir John Smith upon a Purchase and all was well done and the Writ made and sealed Filing of a Writ of Entry many Termes after but by the negligence of the Attorney it was not filed and it was Unanimo assensu resolved that it should be filed and that after the death of Sir John Smith for it is but to perfect a Common Recovery which is a Common Conveyance And this was denied in the case of one Allonson for there Error was brought and Diminution alledged and a Certificate that there was no Writ by the Custos brevium And it is ordinary to file these Writs at any time within a year without motion Mich. 8 Car. Harbert versus Angell CHarles Harbert Plaintiff against Angell Case Words in an action upon the case of words which were Thou art a Theef and hast cousened my Cosin Baldwin of his Land And after Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words would not maintain action And at the first Iustice Crawley and Iustice Vernon were of opinion that the former part of the words were actionable and that they were not extenuated by the subsequent words but they agreed if it had been for thou hast robbed c. it would be otherwise And the Lord Heath and Iustice Hutton were of a contrary opinion and that the words And and For are in this case to have one effect and declare what Theef he intended And they relyed on Birtridges case Coke lib 4. And upon this diversity of opinion the Lord Heath conferred with the Iustices of Serjeants Inn in Fleetstreet and we with the Lord Richardson and they all agreed that the subsequent words explained his intent and meaning viz. the Robbery and cousening of the Land And Verba sunt accipienda in mitiori sensu As to say Thou hast stoln my Corn it shall be intended Com growing so in Arrowes case Arrowes case 19 Jac. Thou art a Theef and hast stoln ten Cart-loads of my Furzes adjudged not actionable for it shall be intended of Furzes growing Quaerens nil capiat per breve Ram versus Lamley Norff. RAm brought an action upon the case against Lamley and declared That wheras he was Bonus legalis homo and free a suspitione feloniae the Defendant maliciously want to the Major of Linn and requested a Warrant of him being a Iustice of Peace against the Plaintiff for stealing his Ropes The Major said to him Be advised and look what you do the Defendant said to the Major Sir Words I will charge him with flat Felony for stealing my Ropes from my Shop Quorum quidem verborum c. And after Not guilty pleaded and Verdict for the Plaintiff Hitcham moved in Arrest of Iudgment And the Court unanimously resolved that these words being spoken to the Iustice of Peace when he came for his Warrant which was lawfull would not maintain an action for if they should no other would come to a Iustice to make complaint and to inform him of any Felony Quaerens nil capiat per breve Mich. 8 Car. Lamb versus West Trin. 8 Car. Rot. 333. SIr John Lamb Knight brought Replevin against Thomas West and count Replevin that the Defendant took his Beasts at Blisworth in quodam loco vocat Thorny Close The Defendant avowed as Bayliff to Sir William Sheapherd and derived Title by a Lease to Michael West for ninety years if he and Thomas West the Defendant Demand of Rent and one Hutton West should so long live And the said Michael 19. Aprilis An 20 Jac. granted a Rent-charge of ten pounds per annum to the said William Shepheard and his Executors out of the place in which c. for the residue of his Tearm to be paid at the house of Thomas West in S. And the said Mich. granted that if the Rent he arrear by eight and twenty daies being lawfully demanded at the said house he should forfeit twenty shillings for every day that it should he arrear and if it be arrear by six months being lawfully demanded at the said house then he might distrain for that and the Nomine poenae And for Rent arrear by a year after demand due c. he makes Conuzance And therupon the Plaintiff demurred generalls And after many Arguments at Bar the Iustices delivered shortly their opinions severally and all argued that it is a Rent-charge and then a Distresse is incident to a Rent-charge which is in its creation a Rent-charge as well as if one makes a Lease for life or years rendring Rent and if it be lawfully demanded then it shall be lawfull to distrain for it None will deny but that he may distrain for this Rent without any demand And the diversity is between a Penalty and a Rent for if the Avowry had been for any part of the Nomine poenae then without actuall demand at the day he could not have distrained therfore vide Maunds case Coke lib 7. fol 28. And all agreed that when a Distresse is for Homage if it be once tendred and refused he cannot distrain without demand vide Litt 34. 21 E 4. 6. 16 17. 7. E 4. 4. That where a Rent is reserved upon a Lease and an Obligation to pay it yet that alters not the nature of the Rent 22 H 6. a good case Rent is reserved upon a Lease and an Obligation to perform Covenants that extends not to the Rent reserved but if it be to pay the Rent then it shall be demanded there it is said that if Rent be tendred and refused the Lord or Lessor may distrain without demand It was agreed that
to proceed vide 10 E 4. 6. 1 H 4. 1. vide Coke Lit fol 261. b. Or otherwise to prefer a Bill in the Parliament which ought to be passed by both houses and then it is Attainder by Parliament and so it was done 5 R 2. 54. But in this Case it being that part of the Treason objected against him was supposed to be done Oust le mere and made Treason by the Act of 3 Jac cap 4. that cannot be tryed but by Indictment to be taken before the Iustices of Assise and Gaol-delivery where the party was taken or before the Iustices of the Kings Bench and Law Custome Statute or usage to the contrary notwithstanding And so it cannot be tryed by the Statute of 35 H 8. cap 2. in what place or Shire that the Kings Bench shall be for this Statute had for this Treason prescribed a speciall form of Tryall and the place where he shall be taken shall be expounded the place where he is misprisoned as upon the Statute of Soldiers And he which is charged to have two Wives living shall be tryed in the place where he is taken which is the place where he is imprisoned vide 2. Inst 49. Trin. 12 Car. Quaeries concerning Aliens QUaeries upon the Statutes of 1 Riz cap 9. 1 H 7. cap 2. 14 H 8 cap 2. the Decrees in the Star-chamber made 20 H 8. and confirmed 21 H 8. cap 16. 22 H 8. cap 8. 32 H 8. 16. and other Statutes concerning Aliens and the Statute of 5 Eliz cap 4. 1. Whether the Statute of 5 Eliz. cap 4. doth repeal the former Statutes concerning Aliens taking Apprentices Iourny-men and Servants 2. Whether Aliens made Denizens may use any handycraft within the Realm otherwise then as Servants to the Kings Subjects Memorand That on the seventh day of July We met at Serjeants Inne in Fleetstreet Mr. Attorney-generall being there and We debated the matter and upon perusall of the Statute of 1 R 3. cap 9. and the other Statutes And upon some mis-recitall of the Statute 1 R 3. by the Statute 32 H 8. cap 16. And upon differences of the Printed Statute from the Parliament Roll as was supposed upon shewing of an old Book of Statutes which was in French and brought by my Brother Crook and upon the intricacy of the Statute We could not resolve on the suddain upon these Questions at this time nor unlesse the Parliament Roll might be seen But upon perusall of the Statute of 5 Eliz cap 4. We all resolved and agreed That all Aliens and Denizens are restrained by the Statute of 5 Eliz cap 4. That they may not use any Handycraft mentioned in the said Statute Resolves upon the Statute of 5 Eliz. cap. 4. concerning Aliens unlesse they have served seven years as Apprentices within this Realm according to the provision of this Statute This was set down in writing by Sir John Banks his Majesties Attorney Generall present Sir John Bramston chief Iustice of England Sir John Finch chief Iustice of the Common Bench Sir Humphrey Davenport chief Baron Baron Denham Iustice Hutton Iustice Crook Baron Trevor Iustice Crawley and Baron Weston the other Iudges being absent viz. Jones and Vernon Hil. 12 Car. Souser versus Burton ONe Widow Souser brought an action of the Case against Burton for these words Thou old Witch thou old Whore leave oft thy witching or else thou shalt be hanged or burned if I can do it And upon Not guilty pleaded and Verdict for the Plaintiff it was moved in Arrest of Iudgment And it seemed to Lord Finch Hutton and Vernon that the action lay not without shewing that she did any act of Witchcraft for which the pain of Pillory and Imprisonment for two years should be inflicted and the second time Felony And that the words Words Thou art an old Witch or go away thou old Witch are usuall words and old Whore bears no action And as to say Thou shalt be hanged if I can do it it is not possible that he could do it But Iustice Crawley doubted of it at first because that it was alledged that it had been adjudged in the Kings Bench that an action lies for calling one Witch But afterwards he said that he had spoken with the Iustices of the Kings Bench of their reason who said that they adiudged no such thing unlesse that he spoke further that the party had done any act of Witchcraft punishable by the Statute Hugles versus Drinkwater AN action of Account by William Hugles against Thomas Drink-water for receit of eighteen pounds In Account payment by appointment of the Plaintiff is no plea before the Auditors where the Issue was Ne unques receivor by the hands of one William Appowell to the use of the Plaintiff the Defendant plead Ne unquer receivor per manus c. and found or the Plaintiff And the Defendant before the Auditors plead that he by the appointment of William Appowell had paid it to one John Marsh for the Debt of the Plaintiff and therupon Demurrer And adjudged a bad Plea and against his former Issue And the said Appowell by whose hands he received the said summ had not any power to appoint the Defendant to pay it to John Marsh to whom the Plaintiff was indebted and if that had been pleaded in Bar of the Account to have been done by the appointment of the Defendant it had been a good Bar vide Dyer 29. 196. after ne unques receivor and the truth was that he had been Receiver and had paid it over by the appointment of the party and yet by this Plea be hath lost the advantage therof An. 2. Car. MEmorand That the 19. day of May An 2 Car. all the Iudges being assembled at Serjeants Inn in Chancery Lane by the commandment of the King the Attorney Generall propounded In what cases a prisoner arraigned shall have Councell that the King would be satisfied by our opinion Whether any person which is arraigned of Treason of Felony ought by the Fundamentall Lawes of this Realm to have Councell And We all una voce answered That when any one is indicted of Felony or Treason or any other such offence the party ought not to have any Councell unlesse it be upon matter in Law as where he demand Sanctuary or plead any speciall matter and that is agreed by Stamford fol. 151. Also this extends as well to Peers of the Realm as to others vide 1 H 7. 23. and the 9 E 4. 2. and so it was agreed by all that although the party shall have Councell in an Appeal of Murther yet if he be non-suited and the party be arraigned upon the Declaration then he shall have no Councell Also it was resolved that when the party who prosecute suppose that the Grand Iury will not find the Invictment and therfore requires that the Evidence should be given publickly to the Iury at Bar which is sometime done yet the party who
that the Plea is not good Harris argued for the Defendant for three reasons 1. Because by the Lease this was included vide 21 H 6. 61. grant of Conuzance c. gives power to make a Steward tempore E. 1. Fitz. 41. 2 E. 2. Bar 237. grant to fish in a Pond yet he cannot make a Trench 2. The Coles are the Inheritance and the bettering of them is the bettering of the Inheritance 3. For the profit of the Common-wealth 14 H 8. 18. 20 Eliz Dyer 361. Altams case Trench to make a Meadow the better is no wast vide 22 H 6. 6. digging of certain Loads of Gravell for the amending of the Land vide 12 H 4 5. And for telling this ought not to be answered any other way then by justifying of the Imployment and the Plaintiff may reply upon the sale if he will and the case is long debated 5 E 4. 10. vide Dyer 37. Malenders case And the last day of this Term the Lord Hobart declared that we were all of opinion that the Plea is not good for there though the Lease be of Mines and by vertue therof the Lessee might open new Mines as in Sanders case Coke lib 5. fol. 12. there it shall be intended of new Mines which in themselves is wast if it had not been by speciall words And the digging of a Mine is an impairing of the Inheritance and a great benefit to the Lesses and therfore if Lessee for years build a new house if he cut Trees off the same Lands for the making therof it is wast 17 E 2. Fit wast 118. And no more then one may make a Brick Kilne and burn Brick or a Lyme Kilne and burn Lyme with wood growing upon the ground and sell the Brick or Lyme no more may the Defendants in this case cut down wood for the making and supporting of these Mines for Coles which they sell vide 41 E 3. 17. And so Iudgment was given for the Plaintiff Edmonds Case MEmorand That at the Assises holden at Winchester in Lent 15 Jac. one William Edmonds was indicted of Burglary because that he Burglariter and feloniously did break the house of one Richard Heydon in the night at Ramsey Burglary and the Iury gave a speciall Verdict We find that Richard Heydon and Christian his Wife were both in Bed and at rest in an upper Chamber in the Mansion house of the said Richard Heydon and that the said William Edmonds then was and yet is the Servant and Apprentice of the said Richard and that he then lay in another Chamber of the said house remote from the Bed-chamber of his said Master and Dame and that there was a Door with a Latch at the Stairs foot of the said Bed-chamber of the said Heydon but none at the Stair-head being the entrance into the said Bed-chamber of the said Heyedon We find that the said William at the said time in the Indictment drew the Latch of the Stair-foot door and opened the said door being then latched and went up the Stairs and entred into the Bed-chamber of his said Master with an intent to murther the said Heydon and that he did then and there with an Hatchet with an intent to murther his said Master strike and grievously wound him and gave him fifteen wounds on the head and other parts of his body And if upon the whole matter c. And this speciall Verdict was shewn by the Lord chief Baron Tanfield unto all the Iudges of Serjeants Inne in Chancery Lane viz. Iustice Warburton Crook Baron Bromely Iustice Dodderidge Houghton Winch and Hutton And they all besides Winch which doubted agreed that it was Burglary and afterwards in the same Term at a meeting in Serjeants Inne in Fleetstreet it was shewn to Mountague Hobart and Denham which concurred Mich 16 Jac. Staffords Case FAlse Imprisonment was brought by Sir John Stafford the Defendant justifie Matter of Record tryed by the Country that Bristoll is an ancient City and that time wherof memory c. there hath been a Court holden there before the Sheriffs c. and justifie that there was a Plaint levied and Iudgment and that the now Plaintiff was taken in execution The Plaintiff replyed Quod non fuit aliqua querela levata according to the custom and requires this Quod inquiratur c. And it was tryed at Bristoll and found for the Plaintiff and damages twenty six pounds And it was moved in Arrest of Iudgment that this being matter of Record viz. the entry of the Plaint in a Court of Record it shall be tryed by the Record and not by the Country And it was adjudged that the tryall was good because that it is not meerly Record but whether it was according to the Custom And Non prosecutus est ullum breve is tryable by the Country Quaere if the King grant by Patent to hold plea under forty shillings if it be a Court of Record Sir Walter Rawleys Case MEmorand that on Friday the 23. of October upon conference between all the Iustices of England whether a privy Seal was sufficient it being directed to the Iustices of the Kings Bench to command them to award execution against Sir Walter Rawley which was attainted of Treason at Winchester Mich. 1 Jacobi How Prisoners which are attainted of Treason set at large shall be brought to execution before Commissioners of Oyer and Terminer or how they should proceed before execution be awarded It was resolved by all that he ought to be brought to Bar by Habeas Corpus to the Lieutenant of the Tower and then demanded if he could say any thing why execution should not be awarded for the proceedings against him being before Commissioners they are delivered only into the Court of Kings bench or they might have remained in a Bag or a Chest and no Roll made therof and so long time passing it is not a Legall course that he should be commanded by a privy Seal or great Seal to be executed without being demanded what he hath to say for he might have a pardon or he might say that he is not the same person As if one be Outlawed of Felony and taken he shall not be presently hanged but he shall be brought to Bar and so demanded c. And upon this resolution a privy Seal came to the Iustices of the Kings Bench commanding them to proceed against him according to Law And therupon a Habeas Corpus was awarded and Octob 28. he came to the Bar being brought by the Lievtenant and there he was demanded of whether he had any thing to say why c. and there he shewed that the King had imployed him as Generall of a Voyage and hath given him power De vita membris upon others And whether this did amount to a pardon or no he knew not The Attorney-generall said that the King pardoned no Treasons by any Implication but it ought to be by speciall words Then he said
Defendant brought a Writ of Error in the Exchequer Chamber upon a new Statute and after divers terms Hall died and after the Plaintiff was non-suited without mention made of his death Tadcaster brought two Scire facias against Hobs and upon two Nihils had Iudgment Hobs brought an Audita Querela alledging the death of Hallowell before Scire facias and before Capias and it was adjudged that the Audita Querela well say and Hil 4 Jac Rot 975. between Timberley and Calverly Scire facias brought against the Bail and he pleaded that the Principall died before Capias returned against him And Iudgment upon argument given against the Plaintiff The like Iudgment between Iustice Williams and the Sureties of one Vaughan Hil. 19 Jac. Rot. 312. or 3125. Walrond versus Hill London Debt WAlrond brought an action of debt upon an Obligation of three hundred pounds against William Hill with Condition that if Thomas Harris and Elizabeth his Wife One bound to levy a Fine before such a day who shall do the first act before the end of Easter Term next shall levy a Fine before the Iustices of the Common Pleas by due course of Law to the use of the Plaintiff that then c. the Defendant pleaded that before the end of the said Easter Term the Plaintiff did not purchase any Writ of Covenant pro fine leuand wherupon a Fine might be levied according to the course of Law The Plaintiff replyed that the fifteenth of April the said Thomas for money enfeoffed another of parcel of the Land that was to be conveyed by the Fine And that the said Thomas and Elizabeth his Wife have not any Estate or Interest in the said parcell so conveyed wherof they may levy a Fine And upon this Replication the Defendant demurred And upon argument at Bar by Serjeant Harvey for the Plaintiff and Serjeant Henden for the Defendant the first question was If the Bar be good Intant que le Defendent est oblige That Thomas Harris and Elizabeth his Wife shall levy a Fine he ought to procure that to be done at his perill semble al 4 H. 7. 3 H. 6. Condition that John S. a stranger shall take Alice D. to his Wife before Mich. If I. S. refuse the Obligation is forfeited And therfore it was urged that he ought to procure a Writ of Covenant at his perill But the Lord Hobart held that the Plaintiff ought to procure the Writ of Covenant to have made himself capable of the Fine And he put this case if I. S. be obliged that I. D. shall enfeoff I.N. the Obligee such a day I. N. ought to be upon the Land or ought to make a Letter of Attorney to receive the Livery or otherwise the Obligation is not forfeited And when a Covenant is to levy a Fine he which is to do the first act c. vide Palmers case Coke lib 5. fol 127. 4 E. 3. 39. 18 E. 3. 27. 11 H. 4 18. 21 E 4. 2. The second question was whether this Obligation be ferfeited being that the said Thomas Harris had made a Bargain and Sale of part of the Land to another before so that he was disabled at the time to levy a Fine And we all agreed that the Condition was impossible and is all one as if he had disabled himself afterwards as in Maynes case Coke lib 5. 21. where the Covenant was to make a new Lease upon surrender of the former Lease there if he which ought to make the new Lease disables himself to make a new Lease and to accept of the Surrender by granting the Reversion for years he ought not to do the first act viz. Surrender but the Covenant is broken And in this case it is all one as if one who had granted the Reversion for years or for life Covenant that he upon Surrender will make a new Lease he had broken this Covenant being disabled at the time And it was said and agreed by the Court that the Fine to be levied ought to be an effectuall Fine which might operate to convey the Land according to the Covenant Burnell and Brook One case was vouched in this case to be between Burnell and Brook where the Condition was that he should acknowledge a Iudgment and a good Bar that the Plaintiff had not purchased an Originall Writ for he ought to make himself capable of Iudgment acknowledged to him vide 34 E. 1. Fitz Debt 164. A Condition that if he present the Obligee to a Benefice that then c. Though the Obliges taken Wife by which he is disabled to take it put he ought to present and offer him to the Ordinary to refuse him Vide 28 E 4. 6. where parcell of the Land was recovered yet Debt lies for entry Damages recovered in a Court of ancient Demeasn which case was then vouched but it is not much to the purpose And afterwards we all agreed that the Plaintiff should have Iudgment Hord versus Cordery A President was shewn which was thus IN the County of Wiltes Richard Hord Clerk Vicar of Chute Case brought an action upon the Case against William Cordery and Bridget his Wife and Dorothy Cox Conspiracy for one malicious confederacy of charging the Plaintiff with the felonious Raye of the said Dorothy Cox and procured him to be examined before Sir Anthony Hungerford a Iustice of Peace and therupon was bound in a Recognizance to appear at the next generall Sessions of the Peace at Devises and from thence was bound over to the Assises And there the Defendants An 15 Jac before Sir Thomas Flemming and Tanfield Iustices of Assise preferred one Bill of Indictment of their malice aforesaid and by the procurement of the said William and B. the said Dorothy shewed to the grand Inquest whether it were true or false And the Iury perceiving the malice and the falsiâ—y did not find it to be true and gave their Verdict by Ignorance Vpon Not guilty pleaded by William and Bridget and non informatus by Dorothy the Iury found for the Plaintiff and after a Writ of Error An 15 Jac and 20 marks costs for the delay Ego vidi recordum est bien pleivement aver que il ne ravish le feme est ent Hil. 10 Jac. Rot. 92. 1. 1. Trin. 20 Jac. Hawkins versus Cutts HAwkins brought an action upon the case against Cutts Case and declared that he was of good Fame c. and for the space of eight years last past had used the Art and Mystery of a Baker Pandopatoritae and had gained his living by buying and selling the Defendant said of him He is a Bankrupt Knave And not guilty Words it was found for the Plaintiff And in Arrest of Iudgment it was moved that it is not shewn that he was a common Baker neither had used the Trade but used the Art and Mystery of a Baker And there is as Serjeant Hobart said as much skill
the Land to Anne his Wife the Lessor of the Plaintiff for life and died Anne entred and made a Lease to the Plaintiff Et si super totam materiam c. And it seems that the Defendant Allen claim under the Title of Anne K. the Daughter but that was not found nor no other Title for the Defendant and therfore of necessity Iudgment ought to be given for the Plaintiff And this case was well argued by Crawley for the Plaintiff And Henden for the Defendant And three Points were argued 1. If the two acres in Langham passed by the words Cum pertinentiis and it seemed to the Court that they did not passe without saying Cum terris eidem Messuagio spectantibus vel pertinentibus And that is agreed in Hill and Granges case by Conveyance and 23 H. 8. 6. and it is all one in a Will Also in this case it is not found for what time these two acres had been used with the house And there was sufficient to supply the words Cum pertinent for ought that appears And if the Law be so the two acres do not passe but discend to Thomas Keene and the Feoffment good 2. If by these words it be an Estate-tail as in Beresfords Case Coke lib 7. fol 41. 9 E 3. Fitz tail 21. 12 E 3. 7 E 6. 16 Eliz in Chapmans case or a Fee-simple And yet Yelverton and Crook inclined that it was an Estate-tail but Lord Richardson Hutton and Harvey to the contrary for an intent against Law shall be void vide Abraham and Twiggs case Coâ—e lib 7. fol 41. 3. If the Collaterall Warranty which descended had extinguishâ— and barred the right of Anne Keene Henden would have maintained it because that the Warranty is speciall although it was collaterall that it did not Bar which is sanâ— question be it speciall or generall it bars the others upon whom it descends vide Coke lib 15. Seniors case he held no descent and then no Bar 12 E 4. discontinuance 50. 7 H 6. speciall Warranty shall be used by Rebutter but not by Voucher And Iudgment for the Plaintiff If a Feme shal have a supersedeas upon an Exigent against Baron and Feme Un supersedeas fuit Misâ— for the Feme upon an Exigent against Baron and Feme And upon much debate it was agreed that the Feme for the safeguard of her self from imprisonment being returned upon the Exigent or upon the Capias viz. upon the one Quod reddidit â—â— upon the other Caepi and as to the Husband Non est inventus may appear and so long as the Processe continues against the Husband she shall have idem dies But when the Baron is returned utlegatus she shall be discharged sans idem dâ—es And that stands well and raconciles all the Books But whether she shall have a Supersedeas de non molestando is doubtfull for by the 11 of H 4. 80. and Dyer 271. if the Baron be outlawed and the Wife Wâ—ived and the King pardon the Feme that shall be allowed and she shall go sine die and vide 4 E â— 34. and 14 H 6. 14. 13 H 4. 1. And it seemed by all to be agreed that the Baron after he purchaseth his pardon or after he come and reverse the Outlawry he shall not have allowance of his Pardon nor his appearance received si non qui il amesne sa feme qui par le presumption de leye est amesnable per luy mes les baron n'est amesnable per le feme vide 18 E 4. 4. there the case was that a Feme Covert was sued as Feme sole her Husband being beyond Sea and not known to be alive and she was outlawed and then her Husband came again and brought a Writ of Error for the reversall therof in his name and in the name of his Wife And there it is said that it is questionable being that he was not party to the Suit And then one said that it would be a good way to be rid of a Shrew And the Prothonotaries said that no Supersedeas was ever granted for the Wife in such a case Hil. 2 Car. Sir Charles Howards Case MEmorand That the Earl of Marleborough Lord Treasurer of England came to Serjeants Inn in Chancery Lane 6. Febr. and there assembled all the Iustices to have their opinion upon a Case which was depending in the Exchequer Chamber Where the office of the keeper of a Park is gone if the Kâ—ng dispark it upon an English Bill for the King by the Attorney-generall against Sir Charles Howard for avoiding the possession of a Lodge and desisting from taking the profits of a Park called Putney Mooreclapp the Custody of which Park and three pounds annuall Fee with the Windfalls c. and the custody of the Lodge was granted to him The King which now is by his Charter disparked the Park and after granted all the Dâ—er to Sir Richard Weston Chancellor of the Exchequer And whether by this disparking of the Park the office of the Keepership he determined or no then whether the annuall Fee be determined then if the casuall profits as Windfalls c. may be yet taken by Charles Howard who is the Patentes And upon debate it was unanimously agreed that the King might dispark his Park and that by the disparking therof the Office of the Keepership is gone and determined for Sublata causa tollitur effectus and this Office is not of necessity and such Offices are not prefumed in Law to be altogether for the benefit of the Patentes but reciprocally for the Commodity of the King and by the disparking of the Park the labour and charge is gone It was also agreed that the King might discharge the Patentee of this Office although the Park continue And iâ— one grant the Stewardship of a Mannor and he dismember the Mannor the Office determines And if a Corporation grant the Office of Town-Clerk or of Recorder and after surrender their Patent and take a new Patent which incorporates them by a new name all the Offices are determined It was agreed that the annuall Fee certain remain in both cases be he discharged or be the Park disparked vide 5 E 4. 9. 4 E 4. 22. 18. E 4. 9 Dyer 71. 6 H 8. Kelway 171. Plowd Sir Thomas Wrothes case The Earl of Lincolns Case Star-chamber MEmorand That the Sollicitor Generall moved that Sir Henry Fines had preferred a Bill against the Earl of Lincoln in this Court Where a Lord may briâ— sworn And there was a Commission De dedimus potestatem granted to take his answer upon Oath and he offered his answer upon his Honor. And the Commissioners returned this speciall matter and he prayed an Attachment And this case was propounded to the Iudgges and it was resolved by them the Lord Keeper and all the Court of Star-chamber that he ought to answer upon his Oath for it is Juramentum purgationis and not promissionis Also
And the proof therof see Coke lib 6. fol 19. Gregories case and Dyer 236. a. Then the principall and sole point will be if this Offence will be by the act of 33 H 8. cap 10. made presentable and punishable by the Iustices of Peace at their six weeks Sessions and it was unanimously agreed that it is not First because the preamble of the act recite that the Offences recited therin escape punishment and for their more speedy and effectuall punishment and repeat the particulars but therin name not Brewers by expresse words and it cannot be intended that the intent of the Statute was to give them at their six weeks Sessions to intermeddle with things not determinable at their generall Sessions And it was objected by Aâ—tho that Lambert and Crompton had put it as an Article of their charge To which it was answered that it was in some respect inquirable at Common Law viz. Misdemeanors in Bear-brewers Conspiracies and agreements to sell at such prises and the making of wholsome Beer Also it might be that they â—ake the Law to be upon the Statute of 23 H 8. that the Sessions being a Court of Record was within this act that saies in any Court of Record And then if it be not suable by Information before the Iusticeâ— of Peace the consequence is plain that the Statute of 21 Jac. cap 4. extends not therto and the Statute of 37 of H 8. makes not any thing in this case but tolls the six weeks Sessions and makes it inquirable at the generall Sessions Ideo Iudgment for the Informer June 19. An. 22. Jac. MEmorand That upon a Conference at Serjeants Inn in Fleet-street it was resolved and agreed by the Lord chief Iustice Sir James â—ea the Lord Hobart Baron Bromley Baron Denham Iustice Hutton and Iustice Jones That any one may erect an Inn for lodging of Travellers without any allowance or License Resolutions concerning Innes and who may keep an Inne and how they may be suppressed as well as any one before the Statute of 2 E 6. might have kept a Common Alehouse or as at this day one may set up to keep hackney Horses or Coaches to be hired by such as will use them And all men may convert Barley into Mault untill they be restrained by the act of Parliament made for that purpose And as all men may set up Trades not restrained by the Act of 5 Eliz. which directeth no man that hath not been bound or served as an Apprentice by the space of seven years or by restraint of setting up Trades in Corporations by such as be not free by the like reason all men may use the Trade of Inne-keeping unlesse it could be brought to be within the Statute of 2 E 6. which hath never been taken to be subject to that Statute in point of license And vide that an Hostler is chargable to the party which is his Guest for the restoring of that which is lost in his House and that by the Common Law of the Realm vide 11 H 4. fol 45. see also 11 H 4. fol 47. That in an action upon the case brought by the School-master of Glocester for erecting another School to his prejudice adjudged that no action lies and also it is there said that if I have a Mill and another erect another Mill by which I lose my Custom no action lies unlesse he disturb the water And it was said by the chief Iustice that it was so resolved before by the Iudges and that Iustice Doderidge Iustice Haughton and Iustice Chamberlain were of the same opinion and so now was my Brother Crew the Kings Serjeant who went the Circuit of Surrey Kent and Essex but the chief Baron Tanfield was of a contrary opinion And it seemed to him that Innes were licensed at first and Originally by the Iustices in Eire but nothing could be shewne to that purpose But all the Iustices were of a contrary opinion and said that that was the ground that begot the Patent and Commission to Mounperson viz. That the King might licence them if the Iudges might And it was said by the Lord chief Iustice that there was not any such thing in the Eires but because that strangers which were aliens were abused and evilly intreated in the Inns it was upon complaint therof provided that they should be well lodged and Inns were assigned to them by the Iustices in Eire The second question was if an Inn be erected in a remote and inconvenient place so that it is dangerous to Travellers and there harbour men of bad same which are apt to commit Robbery whether that might be suppressed And as to that all agreed that it is a common Nusance and may be suppressed and that to be by Indictment and presentment to which the party may have his Traverse The third question was whether when one which had erected an Inn be a man of bad behaviour and such a person as is not fit to keep an Inn how it should be aided and helped And it was agreed by all that upon Indictment or presentment therof he may have his Traverse and if he be convicted then to be suppressed viz. that he which had so misdemeaned himself should not keep it as an Inn nor use it But that it being an Inn it may be used afterwards by another Fourthly how and by what way or means the multitude of Inns might be prevented by being suppressed or redressed upon complaint or how the number might be stinted This Point seemed to be difficult and to contradict the resolution upon the first question And therfore it was agreed that they should advise concerning it and the best way is that they be strictly inforced to keep the Assise and not to suffer any to tipple in their Inns and by this way they would desist from their Trade Mich. 4 Car. Mackerney versus Ewrin RIchard Mackerney brought an action upon the case against Jeffrey Ewrin and count Case That whereaâ— one I. S. was indebted to the Plaintiff in seven pounds four shillings for pasture feeding and Oates for an Horse kept in the Stable of the Plaintiff Consideration in an Assumpsit The Defendant in consideration that the Plaintiff at his request would deliver the Horse to him to the use of the said John S. promised to pay the said seven pounds four shillings And upon Non Assumpsit pleaded and Verdict for the Plaintiff Serjeant Callis moved in Arrest of Iudgment that it is no good consideration for the Plaintiff had not any property in the Horse and he is not is do any other thing then the Law injoyn him to do As if I lose my goods and another find them and in consideration that he will deliver them to me I promise to pay him two hundred pounds that is not sufficient matter to ground an Assumpsit therupon But if a Taylor had made a Sute of Apparell for I. S. and I. D. request him to deliver it
shall be indicted shall not have Councell And the Attorney Generall was commanded to report our opinion to the King And this hapned to be demanded upon the generall inconvenience that might after ensue in the Case of the Earl of Bristoll to whom the King had allowed Councell Mich. 3 Car. MEmorand That the fifth of November at Serjeants Inne in Fleet-street there assembled the Lord Hide Lord Richardson Lord Walter Iustice Doderidge Baron Denham Iustice Hutton Iustice Jones Resolves concerning Souldiers Iustice Whitlock Iustice Harvey Iustice Crook Iustice Yelverton and Baron Trevor to consider of a Case which was propounded which was One receives Presse-money to serve the King in his Wars and is in the Kings Wages and with others is delivered to a Conductor to be brought to the Sea-side and with-draweth himself and runneth away without license The Question was if it were Felony And time being given before to advise concerning it all agreed besides Yelverton and my self that it was Felony And the sole question is if a Conductor be a Captain within the 7 H 7. cap 1. and the 3 H 8. cap 5. And they said that it is not necessary that he should be such a Captain as is to lead and command them in the War or that hath skill to instruct But such as hath the leading of them by agreement between the Deputy Lievtenants and them and that ought to provide for the Billeting of them and to carry them to the place of Randesvous And one part of a Captain is to conduct although that Conduxit be properly to hire a Souldier yet this name Conductor with whom it is so agreed by Indenture to conduct the Souldiers is a Captain within the intent of those Statutes and if it should not be so these Statutes which are for the defence of the Realm shall be of little force But it was agreed by them that if these Conductors which are so called of late times be hired to carry them but to one place and there another Conductor to receive them this is not within the Statute And it ought to be such a Conductor that can give license upon just cause to proceed It was said that they used to send Captains into the Country but then they were so chargable to the Country and full of disorder that upon complaint of the Iustices of Peace about 43 Eliz. this course was invented viz. That the Deputy Lievtenants should provide for them that were pressed for Coats and Conduct and they sent their Souldiers to a place appointed to be delivered to certain persons whom the Queen appointed to receive them And it was said that though this Case as it is propounded might be cleer yet there are many Circumstances which ought to be proved and that are loft to the discretion of them before that he should be tryed It was unanimously agreed that if one takes Presse-money and when he should be delivered over he withdraw himself that is not Felony although he is hired and retained to serve But my Brother Yelverton I were of opinion that this new name newly invented is not Captain within these penall Statutes which ought to be taken strictly vide Plowden 86. that penalties which concern life shall not be taken by equity but if they be within the words of the Statute then they shall As to kill his Mistresse is within the words for Mistresse is Master Another reason was that the Statutes provide punishment for Captains which want of their number or which pay not their Souldiers within six daies after they have received their pay upon pain of forfeiting all their Goods And the Statute did not intend other Captains in this point then was in the former and latter part therof But admitting that a Conductor is such a one to whom the Souldiers are delivered by Indenture with all Covenants usuall viz. To pay to them their Wages and to convey them to their appointed place and that he may give license to depart yet they agreed that it is the better and clearer way that they should be made Captains and so named in the Indentures for the King may change the Captain at his pleasure and then it should be no question It was agreed that 7 H 7. cap 1. extends only to them who are retained and pressed to serve the King upon the Sea or upon the Land beyond the Sea And the Statute of 3 H 8. cap 5. adds only the Land here And the Statute makes departure without license from the Captain Felony and the Statute 3 H 8. without license from the Lievtenant And the Statute of 7 H 7. makes the tryall to be in the County where they shall be taken before the Iustices of the Shire as they may try other Felonies within their Commission The Statute of 3 H 8. makes their tryall before the Iustices of the County where they are taken and this being a new Felony and made tryable against the Common Law which appoint tryals by Iurors of the County where the Fact is committed and appoint a speciall Iudge viz. Iustices of Peace that is only tryable before them and not before Commissioners of Oyer and Terminer who cannot try any thing but that which is done in the same County But this if all be not done in that County where they are taken makes it tryable only before the Iustices of Peace of the County where they are taken In this point all were not resolved but required longer-time vide 2 Inst 56. Sir Richard Champions Case A Writ of Covenant is prosecuted Jan 23. returnable Oct. Purisicat A Fine of Oct. Puris where the Caption was Feb. 14. 1. The Dedimus potestatem is tested 23 Jan the Iudge certifie the Concord takes Febr. 14. which is two daies after the Term at which time the Writ of Covenant is not depending the Fine is haec est finalis Concordia facta in Oct. Purif And after it is recorded in 15 Pasch and yet adjudged a good Fine vide the Statute of 23 Eliz. 3. Dyer 220. b. Carels Case Mich. 4 Car. Jones versus Powell JOhn Jones Plaintiff against James Powell Defendant in an action â—â— on the Case for a Nusance count That the Plaintiff 10. August 1 Caroli was and is and for forty years last past hath been possessed for divers years yet during of a Messuage Nusans 1. in which he and his family did by the time aforesaid dwell And by all that time hath been Register to the Bishop of Gloc. and kept his Office there that the said Defendant the tenth day of August and ever since hath held in possession another house over against the Plaintiffs And they being so possessed the Defendant the said 10. of Aug. erected a Brew-house and a Privy in the said house and burned Sea-coles in the said Brew-house so that by the Smoke stench and unwholsome vapors coming from the said Coles and Privy the Plaintiff and his family cannot dwell in the said house