Common Law there notwithstanding he shall recover costs also So in our Case these being Acts of Creation which give remedy where there was no remedy before shall be taken strictly according to the Letter and shall not extend to such penalties as in our case And upon this difference he cited the Cases in Pilfords case and especially the Case upon the Statute of 5 E. 6. of Ingrossers the Plaintiff shall not recover costs but only the penalty given by the Statute grounded upon 37 H. 6. 10. I agree That there be many Presidents in the Common 〈◊〉 That damages have been allowed in our very Case but that is the use of the Clerks and passed sub silentio without any solemn debate or controversie Vide Greislies case and the first Case of the Book of Entries Presidents and Judgments in this Court Pasch. 33 Eliz. Rot. 292. Halesworth against Chaffely A Judgment of the Common Pleas was reversed for this very point M. 36 Eliz. Ruddal and Wilds Case M. 44 45 Eliz. Rot. 22. Shepwiths Case Avowry for relief a stronger case Judgment was reversed because damages was assessed Hill 14 Iac. Rot. 471. Leader against Standwell in a Replevin Avowry was made for an Amercement in a Leet and found â—or the Dâ—fendant and damages assessed But the Entry upon the Record was thus Super quo nullo habito respectu c. The Plaintiff was discharged of the damages because nulla damna debent esse adjudicanda per Legem terrae but he shall have his costs But it was objected by Justice Crook That by the Statute of 4 Iac. c. 3. which giveth costs and damages to the Defendant in certain Actions there specified where the Plaintiff shall recover damages and that where the Plaintiff is Non-suit or verdict pass against him That Demurrer hath been construed to be within that Statute Notwithstanding that it is an Act of Creation I agree that and answer that Demurrer is within that Statute and the mischief of it but it is not so in our Case for in our Case there is no such mischief For there is no colour to extend it beyond the words of the Statute For which cause I conclude that the Judgment in this case ought to be reversed 65. A Clerk of the Court dwelling in London was chosen Churchwarden and prayed a Writ of Priviledge which was granted And it was agreed by the whole Court That for all Offices which require his personal and continual attendance as Churchwarden Constable and the like he may have his Priviledge but for Offices which may be executed by Deputy and do not require attendance as Recorder and the like from which the Justices themselves shall not be exempt for them he shall not have his Priviledge And where he hath his Priviledge for the not obeying thereof an Attachment lieth Swift against Heirs in Debt upon the Statute of 2 E. 6. for setting out of Tythes 66. THe doubt in this Case did arise upon two several Indentures found by special verdict which were made by the Vicar and Subchauntors Corrols of Lichfield one 2 E. 6. the other 2 3 Phil. Mar. The Question upon the Indenture of 2 E. 6. was Whether the Grant upon the Habendum be a grant of a Freehold to begin at a day to come or not The chief Justice Justice Crooke and Justice Barckley were clear of Opinion That it was a grant of a Freehold to begin at a day to come And for that the Case is thus In the Indenture of 2 E. 6. there is a recital of a former Lease for years And by this Indenture in 2 E. 6. another Lease was to begin after the first Lease determined the remainder in Fee to another And upon that the three Justices before were clear in their Judgments That it was a Grant of Freehold to begin at a day to come which without doubt is void 8 H. 7. 39 H. 6. and Bucklers case 3 Rep. And in 8 H. 7. the difference is taken betwixt the grant of a Rent in esse and Rent de novo A Rent de novo may be granted in futuro but not a Rent which is in being But Justice Iones in this Case was of Opinion That here is not any grant of a Freehold to begin at a day to come because in this case the Lease doth begin presently because the Lease recited is not found by the Jury and therefore now it is all one as if there had been no Lease at all contrary in the case of the King because it passeth a good estate of Inheritance to the Grantee And therefore if I make a Lease for years unto a man after the expiration of such a Lease where in truth there is no such Lease in being the Lease shall begin presently The Question upon the Indenture of 2 3 P. Mar. was no more but this The Vicar and Subchauntors of Lichfield made a Grant of all their Tithes in Chesterton and name them in certain and in specie as Tithe-wool Tithe Geese Pigs Swans and the like and that in a distinct clause with especial Exception of four certain things After which came this clause All which were in the Tenure of Margaret Pâ—toe And the Jury sound that none of these Tithes were in hâ—r Tenure And whether that Grant were void or not was the Question And resolved by the whole Court nullo contradicente That the Grant notwithstanding this fallâ— reciâ—al was good For these reasons But first it was resolved That where they grant all their Tithes in Chesterton that it is a good grant and hath sufficient and convenient certainty 13 E. 4. and â—â—â—lands Case There are two Generalities 1. Absolute 2. Genâ—â—al in particular â—o here And in our Case it is as câ—râ—ain that demand in an Action may be for them by the name of all their Tithes in Chesterton So in the like manner an Action of Ejectione firme will lie For an Ejectione firme will 〈◊〉 for Tithes as it hath been adjudged here If the King grant all his Lands it is altogether incertain and void but if the King grant all his Lands in Dale or which came to him by the dissolution of such an Abby it is good because it is a generalâ—y in particular And it was agreed that convenient certainty is sufficient And therefore it was said by Justice Iones That if I grant all my Rents in Dale which I have of the part of my Mother that he conceives the same to be good The first reason wherefore this grant shall be good notwithstanding the false recital was this because the words here All which c. are not words of denotation or restriction but of suggestion or affirmation and therefore shall not make void the Grant And here the difference was taken between the Case of a common person and of the King Suggestion which is false in the Case of the King makes the Patent void but contrary in the case of a common person And
same after by Copy that they agreed might be a Question Serjeant Rolls at another day argued that the Copyhold was destroyed by the Kings grant but he agreed that it is not reason that the Patent should be utterly void for that he said would overturn all the Kings grants for there is not any Patent that ever recited Copyhold and therefore the Question is whether the Copyhold be destroyed or not and he argued that it is because there needeth not auy recital of Copy-hold Br. Pat. 93. It is agreed that where the King grants Land which is in lease for term of years of one who was attainted or of an Abby or the like that the grant is good without recital of the lease of him who was attainted c. For he shall not recite any lease but leases of Record and therewith agreeth 1 Rep. 45. a. and Dyer fol. 233. pl. 10 11. Now he said there is no Record of these Copyholds and therefore there needs not any recital of them and therefore the King is not deceived Further he said that no man is bounden to inform the King in this Case and therefore the King ought to take notice and then the reason of the Case of a common person comes to the Kings Case because the Copyhold was not demiseable for time as before according to the nature of a Copyhold and therefore of necessity is destroyed and the Court as I said before did conceive the Case questionable Burwell against Harwell in a Replevin 247. THe Case was shortly thus A man acknowledged a Statute and afterwards granted a Rent-charge the land is extended the Statute is afterwards satisfied by â—ffluxion of time and the grantee of the rent did distrain and whether he might without bringing a Scire facias was the Question And the Case was several times debated at the Bar and now upon solemn debate by the Judges at the Bench resolved But first there was an exception taken to the pleading which was that the avowant saith that the Plaintiff took the profits from such a time to such a time by which he was satisfied that was said to be a plea only by argument and not an express averment and therefore was no good matter of issue and of this opinion was Justice Heath in his argument but Bramston Chief Justice that it is a good positive plea and the Plaintiff might have â—raversâ—d without that that he was satisfied modo forma and in Plowd Comment in Buckley and Rice Thomas 〈…〉 ut cum tam quam are good issues Now for the point in Law Justice Mallet was for the Avowant that the distress was lawful the grantee of the Rent cannot have a Scire facias because he is a stranger and a stranger cannot have a Scire facias either to account or have the land back again The Cases which were objected by my Brother Rolls viz. 32 E. 3. tit Scire facias 101. Br. Scire facias 84. Fitz. Scire facias 134. That the feoffee shall have a Scire facias do not come to our Case for here the grantee of the Rent is a stranger not only to the Record but to the Land which the feoffee is not Further it was objected that the Grantee of the Rent claims under the conusor and therefore shall not be in a better condition than the Conusor there are divers Cases where grantee of a rent shall be in better condition than the Conusor the Lord Mountjoyes Case a man makes a lease for years rendring rent and afterwards acknowledgeth a Statute and afterwards grants over the rent now it is not extendable Besides it was objected that if this should be suffered it would weaken the assurance of the Statute and disturb it I agree that may be but if there be not any fraud nor collusion it is not material and then he being a stranger if he cannot have a Scire facias he may distrain it is a Rule in Law Quod remedio distituitur ipsa re valet si culpa absit 21 H. 7. 33. Where there is no Action to avoid a Record there it may be avoided by averment c. 18 E. 4. 9. 5 Rep. 110. 32 Eliz. Syers Case a man indicted of felony done the first day of May where it was not done that day he cannot have an averment against it but his feoffee may 12 H. 7. 18. The King grants my land unto another by Patent I have no remedy by Scire facias 19 E. 3. Br. Fauxifer of recovery 57. F. N. B. 211. 20 E. 3. 6. 9 E. 4. 38. a. A man grants a rent and afterwards suffers a recovery the grantee shall not falsifie the recovery because he is a stranger to the recovery but he may distrain which is the same Case in effect with our Case for which cause I conceive that the distress is good and that the Replevin doth not lie Justice Heath the distress is unlawful for he ought to have a Scire facias clearly the conusor ought to bring a Scire facias See the Statute of 13 E. 1. Fulwoods Case 4 Rep. 2 R. 3. 15 H. 7. and the reason why a Scire facias is granted is because that when a possession is setled it ought to be legally evicted Besides it doth not appear in this Case when the time expired besides costs are to be allowed in a Statute as Fulwoods Case is and â—he same ought to be judged by the Court and not by a Jury which is a reason which sticks with me see the Statute of 11 H. 6. it is objected that the Grantee of the rent cannot have a Scire facias it will be agreed that the conusor himself cannot enter without a Scire facias and I conceive à fortiori not the Grantee of the Rent I do not say here there is fraud but great inconvenience and mischief if arrerages incurred for a great time as in this Case it was shall be all levied upon the conusee for any small disagreement as for a shilling without any notice given to him by Scire facias and he should be so ousted and could not hold over I hold that of necessity there ought to be a Scire facias and he ought to provide with the Grantor to have a Scire facias in some fit time but I hold that the Grantee here may well have a Scire facias I agree the Cases where it is to avoid a Record there ought to be privity as the Books are but here hâ— doth not avoid the Record but allows it for the Scire facias ought to be only to account 38 E. 3. The second conusee of a Statute shall have a Scire facias against the first conusee and I conceive that by the same reason the Grantee of the rent here shall have it and in that Case there is no privity betwixt the first conusee and the second conusee for which cause he did conclude that the distress was unlawful and that the Repleâ—in would
cannot question the whole life of the Witness as that he is a Whoremaster c. But if he hath done such a notorious fact which is a just exception against him then they may except against him That was Onbies case of Grays-Inn and by all the Judges it was agreed as before And by Reeve Justice If a Counsellor say to his Client that such a Contract is Simony and he saith he will make it Simony or not Simony And thereupon the Counsellor that a Simoniacal Contract it is no offence in the Counsellor Pasch. 17º Car. in the Kings Bench. 137. PRescription to have Common for all his cattle Commonable is not good for thereby he may put in as many beasts as he will But a Prescription to have Common for his cattle commonable levant and couchant is a good Prescription And it was said that that was Sayes case of the County of Lincoln adjudged in this Court 138. In Tompson and Hollingsworths case it was agreed That a Court of Equity cannot meddle with a cause after it hath received a lawful Trial and Judgment at the Common Law although that the Judgment be surreptitious 139. The Statute of 31 Eliz. enacts That if a man be presented admitted instituted and inducted upon a Simoniacal contract that they shall be utterly void c. Whether the Church shall be void without deprivation or sentence declaratory in the Spiritual Court or not was the Question in a Quare impedit brought by Sir Iohn Rowse against Ezechiel Wright Rolls and Bacon Serjeants That it is absolutely void without sentence declaratory c. Where the Statute makes a thing void it shall be void according to the words of the Statute unless there shall be inconvenience or prejudice to him for whom the Statute was made The Statute of 8 H. 6. cap. 10. That an utlagary shall be void if process do not issue to the place where the party is dwelling yet it is not void before Errour brought The Statutes of 1 Eliz. 31 Eliz. That all Leases by a Bishop not warranted c. shall be void They are not void but voidable only which agreeth with the reason of the Rule given before The Statute of 18 H. 6. 6. That if the King grant Lands by Patent not found in the Office that the Patent shall be void it is void presently M. 30 H 6. Grants 92. and Stamford 61. although they be matter of Record The Statute of 31 Eliz. is expresly that it shall be void frustrate and of none effect therefore by the Rule before given it shall be absolutely void M. 10 Iac. Stamford and Dr. Hutchinsons case Resolved that an Incumbent presented by Simony cannot sue for Tythes against his Parishioners a villain purchaseth an Advowson the Church becomes void the Lord presents by Simony and the Clark is admitted Institute and Inducted yet it is void and doth not gain the Advowson to the Lord. Institut 120 a. If an Incumbent take a second Benefice the first is meerly void 4 Rep. Hollands Case The difference is where it is of the value of 8 l. where not And there is difference betwixt avoidance by Statute and avoidance by the Ecclesiastical Law Avoydance is a thing of which the Common Law takes notice and shall be tried by Jury if it be avoydance in fact if an avoydance in Law by the Judges If a Parson doth not read the Articles according to the Statute of 13 Eliz. it is ipso facto void without sentence 6 Rep. 29. Greens case 30 Eliz. Eatons case Instit. 120. a. express in the point And the difference is that before the Statute of 31 Eliz. it was only voidable by deprivation but now by the Statute it is absolutely void Mich. 9 Iac. Cobbert and Hitchins case Mich. 42 Eliz. Baker and Rogers case 2 Iac. Goodwins case in Com' Banc. in all which cases it was not resolved but passed tacitely and without denial That a Presentation by Simony was void without declaratory Sentence It was objected that it is clear by the Ecclesiastical Law it is not void without a Sentence declaratory It is answered Of things of which our Law and the Ecclesiastical Law take conusance we are only to relie upon our Law and not upon the Ecclesiastical Law especially when the Ecclesiastical is repugnant or contrary to our Law as in this Case it is The Judges of the Common Law shall judge the Church void or not void Fitz. Annuity 45. 12 13 Iac. in the Kings Bench Hitchin and Glovers case in an Ejectione firme In this case it was resolved That if I. S. marry two wives the Judges of the Common Law may take conusance of it yet marriage is meerly an Ecclesiastical thing It was objected That the first branch of the Statute of 31 Eliz. that it shall be void c. Secondly that it shall be void as if he were naturally dead c. So that the adding of these words as if he were naturally dead in the later clause prove that it was the meaning of this Statute that it should not be void in the first case without Sentence declaratory It is answered There is a difference in words not in substance or the intent qui haeret in litera c. Iermin and Taylor Serjeants That it is not void before Sentence c. First Admission Institution and Induction are Judicial acts and done by the Bishop and therefore shall not be void before an act done to make them void which is Sentence declaratory or deprivation Secondly the Statute of 31 Eliz. saith it shall be void not that it is c. Thirdly the Ecclesiastical Lâ—w is That no Presentation c. shall be void before Sentence c. Fourthly the Ecclesiastical Law is Judge of it c. Plenarty shall be tried by the Bishop not by Jury 6 Rep. 49. a. Refusal shall not be tried by Jury but Death shall 5 Rep. 57. 9 H. 7. Profession shall be tried by the Spiritual Court 4 Rep. 71. b 4. vid. 4. Rep. 29. a. the credit which our Law gives to the Ecclesiastical Law It is there put That one was divorced without his knowledge which was said to be a strange case Fifthly the Presentee by Simony doth remain Incumbent de facto although not de jure and that by the words of the Statute which makes the Church void as to the King only not as to the Incumbent without declaratory Sentence and the Church is no more capable to have two Incumbents than a woman to have two husbands There is a difference where the Incumbent presented by Simony is alive the same is not void in facto without sentence declaratory but if he be dead there itis And this difference stands upon the two clauses in the Statute of 31 Eliz. And the Statute of 17 Car. of Election of Burgesses taken notice of Avoidance de facto de jure Trinit 16 Car. in Com. Banc. Ogelbics case One was Presented within the age oâ— twenty
the Corporation spake these words of the Plaintiff to his Brethren of the Corporation He praedict the Plaintiff innuendo is an ignorant man and not fit for the place and he said that by reason of speaking of these words that they refused to elect him Steward and whether these words were actionable or no was the Question This case was argued twice in Trinity-Term by Callis and Gotbold Serjeants and the Judges seemed to incline to opinion That the words were Actionable but yet no judgment is given Selden against King in Common Pleas Trin. 17 Car. Regis 218. IN a Replevin the Case was thus A man granted a rent out of certain Lands and limited the same to be paid at a house which was another place off the Land and in the grant was this clause that if the rent were behind and lawfully demanded at the house that then it should be lawful for the grantee to distrein the Rent was afterward behind and the grantee distreined and upon traverse taken upon the demand whether this distress upon the Land which had been good in Law if there had not been a special limitation of demand at a place off the Land be a good demand as this Case is was the point Mallet Serjeant the distress is a demand in it self and there needs not any other demand although the rent be to be paid off the Land as here And it was adjudged in this Court about 3 years past that the distress was a sufficient demand but I confess that a Writ of Error is brought in the Kings Bench and they incline there to reverse it and there is no difference where the rent is payable upon the Land where not and so it was adjudged Trin. 3 Car. Rot. 1865 or 2865. betwixt Berriman and Bowden in this Court and he cited also Fox and Vaughans Case Pasch. 4 Car. in this Court and Sir Iohn Lambes case Trin. 18 Car. Rot. 333. in this Court both adjudged in the point and he cited many other Judgments Iermyn Serjeant contrary that the distress is no sufficient demand as this Case is he ought to demand it at the place appointed by the grant for it is part of the grant and the words of the grant ought to be observed 28 H. 8. Dyer 15. and in the Comment 25. a. it is said that Modus legem dat donationi and therefore by the same reason that the grantor may appoint the time and place of payment as here he hath done by the same reason he may appoint a place for the demand and that he shall make that demand before he distrein for the same is neither repugnant nor impossible nor against the Law and therefore good and by consequence ought to be observed and then he answered the Cases which were cited to be adjudged against him In Symmons Case in the Kings Bench there it was resolved that a distress was a demand in Law and a demand in Law is as strong as a demand in fact as it was said by Justice Barckley in debate of that Case But note that in that Case there was no time in certain limited and further in that Case the Rent was payable upon the land and therefore in that Case I agree that a distress will be a good demand because that the demand is to be made upon the land but it is not so in our Case In Sands and Lees case Trin. 20 Iac. in this Court there also the rent was payable upon the land Berriman and Bowdens Case Trin. 3 Car. cited before I agree was our very Case in point but there Judgment was given upon Confession and therefore doth not rule our Case and in Sir Iohn Lambes Case there was no Judgment given and therefore that doth not rule our Case but Melsam and Darbies case M. 6 Car. Rot. 389. in the Kings Bench a Case in the point where Judgment was reversed upon a Writ of Error there brought for want of demand and Selden and Sherleys case in that Court a Case also in the point was reversed Mich. 16 Car. in the Kings Bench upon a Writ of Error brought for want of demand wherefore I conclude that there ought to have been an actual demand at the house according to the grant in our Case and therefore the Traverse in this Case taken by the grantor is well taken Note that Justice Crawley said that Lambes Case was adjudged that there needed no demand and he said that there were three Judgments accordingly in this Court but Rolls Serjeant said that Darbies Case was reversed in the Kings Bench for want of a demand But note that Foster and Reeve Justices did incline that there should be a demand and so Bankes Chief Justice for he said that it is part of the contract and like a condition precedent for as in a condition precedent a man ought to perform the condition before he can take any thing by the grant so in this Case the grantee ought to make a demand to enable him to distrein for before the demand he is not by the manner of the grant which ought to be observed entitled to a distress wherefore he give direction to the Counsel that they would view the Records and shew them to the Court and further he said to them that where it appeareth that the Rent was demandable upon the land that those cases were not to the purpose and therefore wished that they would not trouble the Court with them Levet and Sir Simon Fanshawes Case in Common Pleas Trin. 17. Car. Regis 249. LEvett brought debt against Sir Simon Fanshawe and his Wife as Executrix of another and sued them to the Exigent and at the return of the Exigent the Defendant Sir Simon Fanshawe came in voluntarily in Court and prayed his Priviledge because he was an Officer of the Exchequer and whether he should have his priviledge in that case or not was the question and that rests upon two things First because he is sued as this case is meerly for conformity and necessity-sake and in the right of another viz. in the right of his wife as Executrix And secondly because he demands his priviledge at the Exigent Whitfield Serjeant that he ought to have his priviledge and he cited Presidents as he said in the point as Pasch. 44 Eliz. in the Exchequer Iames Ashtons case sâ—rvant to the Treasurer and Pasch. 23. Iac. Rot. 131. Stantons case also in the Exchequer in both which cases he said husband and wife were sued in the right of the wife and the husband had his priviledge But he cited a Case which was nearer our Case and that was Hill 8. Iac. in the Exchequer Wats and Glovers case where husband and wife were sued in the right of the wife as Executrix and he said that it was over-ruled that the husband should have his priviledge 22 H. 6. 38. and 27 H. 8. 20. in those Cases the husband and wife were sued in the right of the wife and yet the husband
the Actions brought by the other Creditors But Justice Bramston contrà That the damages were well assessed because that the Actions brought by the Creditors were added for aggravation only and the cause of the Action was the Arrest and Imprisonment like the case where a man speaks words which are in part actionable and others only put in for aggravation and damages is assessed for the whole it is good There was a third Error assigned That the Venire facias was de Warda omnium Sanctorum de Bristow without shewing in what Parish Childe against Greenhil 77. CHilde brought Trespass against Greenhill for Fishing in seperali piscaria of the Plaintiff and declared that the Defendant pisces ipsius cepit c. And Verdict found for the Plaintiff And it was moved by Saint-Iohn in Arrest of Judgement because the Plaintiff declared of taking of pisces suos whereas the Plaintiff they being ferae naturae hath not property in them Register 94 95. and F. N. B. and Book Entries 666. No count that the Defendant cepit pisces ipsiuâ— but ad valentiam c. without ipsius So Fines Case in Dyer 7 H. 6. 36. 10 H. 7. 6. 12 H. 8. 10. by Brudnell 13 E. 4. 24. 7 Rep. case of Swannes And the Book of 22 H. 6. 59. is over-ruled by the case of Swannes 34 H. 6. 24. And the same is matter of substance and therefore not helped after Verdict An Action of Trover and Conversion against husband and wife quia converterunt is not good and it is not helped after Verdict because it is matter of substance Rolls for the Defendant I agree that lepores suos or pisces suos without any more is not good But where he brings an Action of Trespass for taking them in his Soil there it is good because it is within his Soil So in our case for taking pisces suos in his several Piscary and with this difference agree 22 H. 6. 59. 43 E. 3. 24. so Regist. 93 102. 23 H. 6. tit Tresp 59. 14 H. 8. 1. and the Book of 43 E. 3. saith That in Trespass the Writ shall not say Damam suam if he do not say that it was taken in his Park or Warren or saith damam domitam or as the Book is in 22 H. 6. in my Soil or Land and by Newton he shall say there damas suis. And admit that it was not good yet I hold that it is helped after Verdict because it is not matter of Substance for whether they be pisces suos or not the Plaintiff shall recover damages Justice Barckly It is true that in a general sense they cannot be said pisces ipsius but in a particular sense they may and a man may have a special or qualified property in things which are ferae naturae three ways ratione infirmitatis ratione loci ratione privilegii and in our case the Plaintiff â—ath them by reason of Priviledge And it was agreed by the whole Court That Judgment should be affirmed upon the very difference taken by Rolls that where a man brings Trespass for taking pisces suos or lepores suos c. and the like that the Action will not lie But if he bring Trespass for fishing in his several Piscary as in our Case or for breaking of his Close and taking lepores suos c. there it will lie Pitfield against Pearce 78. IN an Ejectione firme the Case was thus Thomas Pearce the Father was seised of Lands in Fee and by Deed in consideration of Marriage did give and grant this Land to Iohn Pearce the now Defendant his second Son and to his Heirs after his death and no Livery was made Thomas Pearce died the Eldest Son entred and made a Lease to the Plaintiff who entred and upon Ejectment by the Defendant brought an Ejectione firme Twisden The only question is whether any estate passeth to the Son by the Deed and it was said there did and that by way of Covenant And it was agreed That in this Case if Livery had been made it had been void because that a Freehold cannot begin at a day to come But I may Covenant to stand seised to the use of my Son after my death So a man may surrender a Copyhold to take effect after a day to come Com. 301. So a man may bargain and sell at a day to come 1 Mar. Dyer 96. Chudleighs Case 129. 20 H. 6. 10. A use is but a trust betwixt the parties and 7 Rep. 400. There need not express words of Covenant to stand seised to an use 25 Eliz. Blithman and Blithmans case 8 Rep. 94. Besides these words dedi concessi are general words and therefore may comprehend Covenant and words shall be construed that the Deed may stand if it may be 8 Ass. 34. 7 E. 3. 9. But I agree that if the intent appeareth that it shall pass by transmutation of possession that there it shall be so taken but here his intent doth not appear to be so for if there should be Livery then the son should take nothing for the reason before given which is against his meaning Mich. 21 Iac. Rot. 2220. Buckler and Simons Case Dyer 202. Vinions case The cases cited before are in the future tense but the words are here I give c. 36 Eliz. Callard and Callards Case Stand forth Eustace reserving an estate to my self and my wife I do give thee my Land and the better Opinion was That in that case it did amount to a Livery being upon the Land for his intent is apparent Mich. 41 42 Eliz. Trelfe and Popwells Case adjudged in such case That an use shall be raised For which it was concluded that in this case there is a good estate raised to Iohn Pearce by way of Covenant Rolls I conceive that not estate is raised to Iohn Pearce by this conveyance It was objected That it shall inure by way of Covenant to raise an use I agree that if the meaning of the party may appear that he intended to pass his estate by way of raising of an use otherwise not And here is no such appearance Foxes Case in 8 Rep. is a stronger case and here it doth not appear that he meant to pass it by way of use But by the word give he intended transmutation of possession 8 Rep. Bedells case Mich. 18. Car. Rot. 2220. in the Common Pleas it was adjudged That a gift of a Remainder after the death of the grantor was void wherefore he concluded for the Plaintiff and so Judgment was given by the whole Court And Justice Iones said When a man makes a doubtful Conveyance it shall be intended a Conveyance at the Common Law And it shall not be intended that the Father would make him Tenant for life only punishable of wast Mich. 15º Car ' in the Kings Bench. 79. IT was moved for a Prohibition to the Counsel of the Marches and the Case was such A man seised of Lands in Fee
â—e conceived That if a man speak such words of another that if they were true would make him liable to a pecuniary or corporal punishment that they would bear an Action and here the Plaintiff was endamaged and therefore without question they will bear an Action Bramston Chief Justice as before also That the words are not Actionable neither of themselves nor for the damage not of themselves for no words which subject a man to a pecuniary Mulct if they were true either at the Common Law or by the Statute will bear an Action For by the same reason to say that a man hath erected a Cottage or to say that a man hath committed a Riot would bear Action 37 Eliz. in the Common Pleas. One said of another That he did assault me and took away my Purse from me and upon Not Guilty pleaded it was found for the Plaintiff and Judgment was stayed because he might take his purse from him and yet be but a Trespasser So as it appeareth that words ought to have a favourable construction to avoid multiplicity of Suits and if these words would bear an Action by the same reason words spoken against every penal Law should bear Action which against the reason given before should be a means to increase Suits And he took it for a rule If the words import scandal of themselves by which damage may accrue then the words will bear action without damage otherwise not and therefore the damage here shall not make the words Actionable which of themselves are not actionable as I conceive they are not Besides by this means the Act of a third person should prejudice me which is against reason as here the Act of the Ordinary by the Citation and damage thereupon accrued which perhaps might be ex officio only for which cause he conceived that Judgment should be stayed but because there were two Judges against one Judgment was given for the Plaintiff Mich. 17º of the King in the Common Pleas. 192. BAine brought an Action upon the Case against for these words viz. That he kept a false Bushel by which he did cheat and cosen the poor he said in his Declaration That he was a Farmor of certain lands and used to sow those lands and to sell the Corn growing on them and thereby per majorem partem used to maintain himself and his family and that those words were spoken to certain persons who used to buy of him and that by reason of those words that he had lost their custom the parties were at issue upon the words and found for the Plaintiff and it was moved by Serjeant Gotbold in arrest of Judgment that the words were not actionable because that the Plaintiff doth not alledge that he kept the false Bushel knowing the same to be a false Bushel for if he did not know it to be a false Bushel he was not punishable and by consequence no Action will lie and compared it to the case Where a man keeps a Dog that useth to worry sheep but he doth not know of it no Action lieth against him for it but yet notwithstanding Bankes chief Justice and Crawley were of Opinion that the words were Actionable for of necessity it ought to be taken that he kept the Bushel knowingly for otherwise it is no cousenage and here being special damage alledged which was the loss of his custom as he had pleaded it the maintenance of his livelihood they hold the words clearly actionable gave Judgment accordingly Note the other Judges were in Parliament 193. Doctor Brownlow brought an Action upon the case for words against 〈◊〉 spoken of him as a Physitian which words were agreed to be Actionable but yet Serjeant Gotbold conceived that although that the words were actionable that the Plaintiff had not well intitled himself to his Action because although that he said that he is in Medicinis Doctor yet because he doth not shew that he was licensâ—d by the Colledge of Physitians in London or that he was a Grâ—dâ—ate of the Universities according to the Statute of 14. H. 8. cap. 5. that therefore the action will not lie see Doctor Bâ—unchams case 8 Rep. 113. â— where he shewed the Statute aâ—orâ—said and pleaded it accordingly that he was a Graduate of the University of Cambridge wherefore he prayed that Judgment might be stayed Bankes Chief Justice and Crawley doubted whether the Act were a general Act or not for if it were a particular Act he ought to have pleaded it otherwise that they could not take notice of it but upon reading of the Statute in Court they agreed that it was a general Act wherefore they gave day to the party to maintain his Plea 194. By Bankes Chief Justice upon an Elegit there needs no Liberate otherwise upon a Statute and note the Elegit doth except Averia Corucae Dye and Olives Case 195. IN an Action of false Imprisonment the Defendant shewed that London hath a Court of Record by prescription and that the same was confirmed by Act of Parliament and that he was one of the Serjeants of the Mace of that Court and that he had a Warrant directed unto him out of that Court to arrest the Plaintiff pro quodam contemptu committed to the Court for not paying twenty shillings to K. B. and that in pursuance of the command of the Court he accordingly did arrest the Plaintiff Maynard that the justification was not good because the Defendant doth not shew what the contempt was nor in what Action so as it might appear to the Court whether they had Jurisdiction or not And if such general Plea should be tolerated every Court would usurp Jurisdiction and every Officer would justifie where the proceeding is Câ—ram non Iudice and void and thereby the Oâ—â—icer liable to false Imprisonment according to the case of the Marshalâ—ee in the 10 Rep. And here the pleading is incertain that the Jury cannot try it and he put the case of the Mayoâ— of Plymouth The Mayor hath Jurisâ—iction in Dâ—bt and Trespass is brought there which is Coram non Iudice But in this Action the parâ—y is imprisoned pro quodam contemptu shall this be a good Justification in a false imprisonment brought against the Officer certainly no. Serjeant Rolls contrary that the Plea was good because that the Defendant hath shewed that the Court was holden secundum consuetudinem and therefore it shall be intended that the contemptâ— was committed in a Case within their Jurisdiction and therefore he cited the 8 Rep. Turners Case to which Maynard replied that that doth not make it good because that issue cannot be taken upon it At another day the Judges gave their Opinions Justice Mallet That the Plea is not good because that it is too general and non constat whether within their Jurisdiction or not and where it was objected that he is a Minister of the Court and ought to obey their commands and therefore it should go hard that he
Statute of 12 E. 2. cap. 6. it is expresly ordained that no Officer of a City or Burrough should sell Wine or Victuals during his Office I confess this Statute is repealed by the Statute of 3 H. 8. but yet there is a Provision in that Statute that it extend not to London then the Law being that none of those things shall be sold by any Officer by retail during his Office the Oath which makes a man to abjure that which the Law forbids of necessity ought to be taken as lawful besides there is a Writ grounded upon the Statute of 12 E. 2. which you shall find in the Register 184. a. Fitz. N. B. 173. b. that the party grieved might have directed to the Justices of assises commanding them to send for the parties and to do right c. Wherefore I hold the Oath good and lawful notwithstanding this Objection For the point of notice I conceive it is not needful and if it be I ask who it is ought to give notice in this Case and I say that no person is tied to do it wherefore he ought to take notice of it at his peril For the debito modo electus I say that it is good being in a Retorn upon a Habeas corpus it is said that it was secundum consuetudinem which includes all things needful for the objection That it is averred in the retorn that he was idoneus habilis but that it is no part of the custom that it should be so for it is only in general Si aliquis liber homo and doth not say habilis idoneus and therefore the custom should not be good I answer that it is averred in the Retorn that it is so that he is elected and that is sufficient for us to ground our Judgment but further I conceive that the debito modo helps it wherefore upon the whole matter I conclude that the custom is good and the Retorn sufficient and therefore that the prisoner be remanded Pasch. 18º Car ' in the Common Pleas. Barrow against Wood in Debt 238. IN Debt upon an Obligation brought by Barrow against Wood the Defendant demanded Oyer of the condition ei legitur c. and the effect of it was this That the Defendant should not keep a Mercers-shop in the Town of Tewkesbury and if he did that then within three moneths he should pay forty pound to the Plaintiff upon which the Defendant did demur in Law and the point is only whether the condition be good or not Serjeant Evers the condition is good because it is no total restraint for it is a restraint here only to Tewkesbury and not to any other place wherefore I conceive the condition good I agree the Case in 11 Rep. 53. b. where a man binds himself not to use his Trade for two years or if a husbandman be bound he shall not plough his Land these are conditions against Law because where the restraint is total although it be temporal there the condition is not good but the condition is not totally restrictive in our Case and he compared this Case to the Case in 7 H. 6. 43. feoffee with warranty Proviso that the feoffee shall not vouch it is a good condition because not totally restrictive for although that the feoffee cannot vouch yet he may rebut so in this Case although the Obligor cannot use his Trade in Tewkesbury yet he may use it in any other place And the Condition is not against Law for if it were such a condition then I agree it would be naught but yet the Bond would stand good for this is not a condition to do an act which is Malum in se for there the condition is naught the Bond also as 2 E. 4. 2. b. by Cooke Instit. 206. b. But although a man cannot make a feoffmâ—â—t upon condition that the feoffee shall not alien yet the feoffee may bind himself that he will not alien and the Bond is good and so I say in our Case and if the condition in this Case should not be good it would be very inconvenient for it is a usual thing in a Town in the Country for a man to buy the shop of another man all his Wares in it and if the same being a small town where one of that profession would serve for the whole Town he who bought the shop and wares should not have the power to restrain him the same being the ground reason of the contract from using of that trade in that plaâ—e it would be very inconvenient wherefore he conceived that the condition was good and prayed Judgment for the Plaintiff Serjeant Clarke for the Defendant that the condition is not good for it is against the Law and void because it takes away the livelihood of a man that is one of the reasons against Monopolies 11 Rep. 86 87. And that I conceive is grounded upon the Law of God for in Deut. chap. 24. ver 6. it is said that you shall not take in pledge the nether and upper milstone for that is his life So that by the Law of God the restraining of any man from his Trade which is his livelihood is not lawful And surely our Law ought not to be against the Law of God and that is the reason as I conceive wherefore by our Law the Utensils of a mans Profession cannot be distreined because by that means the means of his livelihood should be taken away And 2 H. 5. fol. 5. b. by Hull the condition is against Law and yet the case there is the very Case with our case for there a man was bound that he should not use his Art in D. for two years whereupon Hull swore by God that if the Obligee were present he should go to prison till he had paid a fine to the King because the Bond is against Law and therewith agrees the 11 Rep. 53. b. 7 E. 3. 65. A Farmer covenants not to sow his land the covenant is void so as I conceive that although the condition be restrictive only to one place or for a time yet because it takes away the livelihood of a man for the time the condition is against Law and void and he cited a Case in the point against Clegat and Batcheller Mich. 44 Eliz. in this Court Rot. 3715. where the condition of a Bond was That he should not use his Trade in such a place and it was adjudged that the condition was against Law and therefore the Bond void and for these reasons he prayed that Judgment might be entred that the Plaintiff nihil capiat per billam Justice Reeve did produce some Presidents in the point and he said that the Law as it had been adjudged stood upon this difference betwixt a contract or Assumpfit and an Obligation A man may contract or promise that he will not use his Trade but he cannot bind himself in a Bond not to do it for if he
paid may inforce a Distribution or not quaere 65. pl. 102. 93. pl. 158. Double Plea Where two things are alleadged and the one of necessity onely or by way of inducement and the party relies onely upon the other that is no double Plea 55. pl. 84. 74. pl. 113. Ejectione Firme Ejectone Firme de uno repositorio nought for the incertainty 96 pl. 166. Ejectione Firme de tanto unius messuagii c. qâ—aâ—tum â—â—at super ripam is nought for the incertainty and so where the Tâ—over of the Jury is such it is nought 97. pl 168. Elegiâ— Upon an Elgit there needs no Liberate otherwise upon a Statute Note the Elegit excepts averia Caruâ—â— 117. pl. 194. Equity Certain special Cases where there shall be remedy in Eqâ—ity where not pa 83. pl. 1â—8 88. pl. 141 90. pl. 145. 93. pl. 159. 99. pl 1â—1 102 pl. 175. 105. pl. 182. 106. pl. 183. 129. pl. 207. Errors In Error to reverse a Judgement in Debt upon an Arbitrament Judgement was reversed first because that in the reference to the Arbitrament there was no word of the submission Secondly because that the entry of the Judgement was considâ—ratum est and per Curiam omitted 7. pl. 16. In an Actâ—on for words Judgement was reversed because that it was averred that the words were spoken inter diversos ligeos and doth not say Cives of the place where they have such an acceptation as also for that the Judgement was Consideratum est and per Curiam Omitted 15 pl 37. In Trespass the Defendant justifies by a special Custom by Vertue of which he did it and doth not say quae est eadem transgressio for which Judgment was reversed 16. pl. 38. Judgment was reversed for want of Pledges 17 pl. 40. Outlawry was reversed because it did not appear where the party outlawed was inhabitant as also for that it did not appear that Proclamations were made at the Parish-church where c. 20. pl. 46. Judgement reversed for the appearance of an Infant by Attorney 24. pl. 53. Oâ—tlawry reversed because the Exigent was Secund. exact ' ad Com' Meum â—bm ' c. 25. pl. 58. A. Wife of I. S. intestate promises to B. to whom Administration was committed that if he would relinquish Administration at the request of C. and permit A. to Administer that A. would c. in Assumpsit by B. he shewed that he renounced Administration and permitted A. to Administer but doth not shew that it was at the request of C. by Barkley Just. it is Error 55. pl. 86. Judgement ought not to be judged erroneous by implication 56. pl. 88. 61. pl. 95. A Writ of Error upon Dower well lies before the Retorn of the Writ of Enquiry of damages but whether a Writ of Error lies in an Ejectione firme before Judgment given upon the Writ of Enquiry quaere 88. pl. 142. Want of Warrant of Attorney for the Plaintiff after Judgment upon nihil dicit is Error and not amendable 121. pl. 201. 129. pl. 209. Writ of Error bearing Teste before the Plaint entered is nought otherwise where is bears Teste before Judgment 140. pl. 112. In an Ejectione firme the Writ was 〈◊〉 armis but it wanted in the Count and whether this is error or amendable or not quaere 140. pl. 213. Escape Upon mean Process if the Sheriff retorn a Cessi and Rescous no Action lies against him for the escape otherwise in case of Execution 1. pl. 1. Estoppel Morgager makes a Lease for years by Deed indented after performs the condition and makes a Feoffment in â—ee the Feoffee claiming undeâ— the Estoppel shall be bound by the Lease 64. pl. 99. If a man bind himself to deliver any thing he is estopped to say that he hath it not 74. pl. 113. Estoppel binds only parties 105. pl. 180. Evidence to an Inquest upon Issues joyned Depositions taken in the Ecclesiastical Court cannot be given in evidence at Law though the parties were dead 120. pl. 198. Executions prayer in execution A second Execution cannot be granted before the retorn of the former 47. pl. 73. Where a man is imprisoned for the Kings Fine and upon a Habeas coâ—pus it is retorned that he is in Execution also for the Damages of the party it ought to be intended at the prayer of the party 5a pl. 80. Executor Administrator An Executor or an Administrator may maintain an Action for any Coâ—tâ—â—ct made to the Testator or Inâ—estate or for any thing which riseth ex contractu 9. pl. 23. Administrator of an Executor shall not sue a Scire Faâ— ' upon a Judgement given for the Testator 9. pl. 24. A Sheriff levies moneys upon a Fâ—â—ri Fas ' and dies Debt will lie against his Executors 13. pl 33. Whether the Executor of a Phâ—llizer shall have the profits of the Writs which are to â—e subscribed with his name or his Successor quaere 90. pl. 147. Expositors of Statutes The Judges are the sole Expositors of Acts of Parliament though they concâ—rn Spiritual matters 90 pl. 148. Extinguishment and Suspension Three covenant joyntly with two severally after one of the covenantors marries one of the covenantâ—es whether the covenant be good or not 103. pl. 176. Fine to the King IF a Carrier spoil the High-ways by drawing a greater weight than is warrantable by the Custom of the Realm he is â—inable to the King 145. pl. 210. Fines of Lands Disseisee levies a Fine to a stranger this doth not give the right to the Disseisor 105 pl. 180. Tenant for life the Reversion to an Ideot an Uâ—cle Heir apparant to the Ideâ—â— levies a Fine and dies Tenant for life dâ—eth the Ideâ—t dies whether the Issue of Uncle who levied the Fire â—â—albe barred by this or not quaere 4. pl. 164. 146. pl. 216. Forcible Entry Restitution cannot be awarded to the Plaintiff if it doth appear that he hath seisin yet the King shall have his Fine and if the Indictment be adtunc adhuc the Defendant keeps the possession forcibly where the Plaintiff was in possession Re-restitution shall be awarded 6. pl. 12. Forgery To forge a Will in writing though without a Seal is forgery within the Statute of 5 Q. ca. 14. Freehold What shall be said a grant of a Freehold to commence at a day to come what not 31. pl. 66. Gardeins of a Church WHere the Custom is for the Parishoners to chuse the Churchwardens the Person by colour of the Cannon cannot chuse one and if the Minister of the Bishop refuse to swear one of them chosen by the Parish a Mandat lies to inforce him to it and if the Parson thereupon doth Libel in the Ecclesiastical Court a Prohibition lies 22. pl. 50. 67. pl. 104. The Gardeins of a Church in London are a Corporation and may purchase Lands to the use of the Church and in the Country they are a Corporation capable to purchase Goods to the