the Kings Bench an Ejectione firme was brought for the Gate-house of Westminster and the Jury found the Defendant guilty for so much as is between such a room and such a room and adjudged good and here it is as uncertain as in our case Mich. 19 Iacobi Smalls case in Hobarts Rep. The Jury in an Ejectione firme found the Defendant guilty of a third part and good Mallet Serjeant that the Verdict is uncertain and therefore not good And it is not sufficient that the certainty appear to the Jury for it behooveth that certa res deducatur in judicium Institut 227. a. 3. E. 3. 23. b. 18 E. 3. 49. 40 E. 3. 5 Rep. Playtors case Secondly here is no certainty for the Sheriff to give execution for so much in length or in breadth that is quod stat super ripam doth not appear And thirdly thereupon great inconvenience will arise that no attaint will lie upon such uncertain Verdict so as the defendant shall be without remedy and the whole Court except Justice Crawley Banks Reeve and Foster did resolve that the Verdict was insufficient for the incertainty and all agreed That there is great difference betwixt Trespass and Ejectione firme for such Verdict in Trespass may be good for there damages are only to be recovered but in an Ejectione firme the thing it self And their reason in this Case was That although the certainty may appear to the Jury yet that is not enough for they ought to give judgment oportet quod certa res deducatur in judicium And they agreed that if they had found him guilty of a Room it had been good and so the Cases on the Acre of Land and of the third part of a Mannor is good for those are sufficiently certain for of them the Law takes notice The Opinion of Crawley wherefore the verdict should be good was because the demand here was certain although the Jury found it in tanto c. And where there may be certain description for the Jury it is good enough and the rather because the Verdict is the finding of lay gents and he compared it to the case of the Gate-house aforesaid but he agreed that if the Writ of Ejectione firme had been brought de tanto unius messuagii c. quod stat super ripam that it would not have been good but the Verdict is good for the reason aforesaid But Justice Reeve said that that which is naught in the demand is naught in the Verdict and therefore naught in the judgment and therefore the Court would not give judgment and therefore a Venire facias de novo was prayed and granted by the Court. 169. Couch libelled against Toll ex officio in the Ecclesiastical Court for Incontinencie without a Citation or presentment and for that the Defendant was excommunicated and Gotbold prayed a Prohibition which was denied by Crawley and Reeve Justices the others being absent and it was said by Reeve That where they proceed ox officio a Citation is not needful but put case it were yet they said that no Prohibition is to be granted as this case is because that where the Ecclesiastical Court hath Jurisdiction although they proceed erroneously yet no Prohibition lieth but the remedy is by way of Appeal and there he shall recover good costs and it was said by Crawley That if the party be retorned cited and he is not cited That an Action upon the case lieth 170. A woman libelled in the Arches against another for calling of her Iade and a Prohibition was prayed and granted because the words were not defamatory and do not appertain unto them And Reeve said that for Whore or Bawd no Prohibition would lie but they doubted of Quean 171. Bacon Serjeant prayed a Prohibition to the Court of Requests upon this suggestion That one Executor sued another to accompt there and an Executor at the Common Law before the Statute of West 2. cap. 11. could not have an accompt for cause of privity and now by that Statute they may have an accompt but the same ought to be by Writ and therefore no accompt lieth in the Court of Requests Secondly they have given damages where no damages ought to be given in an Accompt And lastly they have sequestred other Lands which is against the Law and for these reasons he prayed a Prohibition Whitfield Serjeant contrary 1. It is clear that an accompt by Bill lieth for an Attorney in this Court and so in the Kings Bench and Exchequer and as to damages it is clear that in an accompt a man shall recovâ—â— damages upon the second judgment but as to the sequestâ—â—ion he could not say any thing but further he said That it was not an accompt but only a Bill of discovery against Trustees who went about to defeat an Infant and upon the reading of the Bill in Court it appeared that the suit was meerly for the breach of a trust and for a confederacie and combination which is meerly equitable Wherefore a Prohibition was denied because it was no accompt but as to the Decree for sequestring other Lands the Prohibition was granted Trin. 17º Car ' in the Kings Bench. 172. EAste brought an Action upon the Case upon an Assumpsit against Farmer because that where the Plaintiff had sold to the Defendant so much wood the Defendant in consideration thereof did assume and promise to pay so much money to the Plaintiff and to carâ—â— away the wood before such a day the Defendant pleaded thâ— he paid the money at the day aforesaid but as to the carrying of it away before the day he pleaded non assumpsit and the Jury found that he did not pay the money at the day but as to the other they found that he did assume and promise as aforesaid and it was moved in Arrest of judgment that the finding of the Jury was naught for being but one Assumpsit and the same being an intire thing it could not be apportioned and therefore they ought to find the intire Assumpsit for the Plaintiff or all against him And the Court agreed all that and awarded that there should be a Repleader and the Chief Justice Bramston said That for the reason given before the Defendants plea was not good and therefore the Plaintiff might have demurred upon it which he hath not done and therefore they agreed that the Verdict was naught for the reason aforesaid 173. Williams was indicted at Bristow upon the Statute of 1 Iac. cap. 11. for having two wives and upon not Guilty pleaded the Jury found a special Verdict which was thus That the said Williamt married one wiâ—e and was afterwards divorced from her causa adulterii and afterwards married the other and if that were within the Proviso of that Statute which provides for those who are divorced was the Question And it was resolved without argument by Bramston Chief Justice and Heath Justice the other being absent That it is within the Proviso for the
by this way he might defeat the Lord of his services The custom was That a woman should have her widows estate the Copy-tenant made a Lease for one year and died and adjudged that the woman should have her widows estate as excrescent by Title Paramouns the estate made for one year see Hab. Rep. And as these the estate of the wife was derivative so here and although it be not the intire Copyhold estate yet it is part of it and a continuation of it and is liable to every charge of the Lord 6 Rep. Swaines case wherefore he concluded that the custom is good and that the avowant ought to have Judgment Justice Heath the custom is good both for the matter and form of it where it was objected that for a personal injury done by one the cattle of another cannot be disâ—teined I agree that it is unjust that where alius peccat alius plectitur but our case differs from that rule for this was by custom for Transit terra cum onere he who shall have the land ought to undergo the charge Besides wheresoever a custom may have a good beginning and ex certa rationabili causa it is a good custom Bracton lib. 1. cap. 3. But this might have a reasonable ground at the beginning for here the punishment is a qualification of the Law for where by the Law the Copyhold-tenant is to forfeit his copyhold-tenement for waste either voluntary or permissive now this penalty is abridged and made more easie and therefore is very reasonable 43 E. 3. 5. 44 E. 3. 13. custom that if a tenant be indebted to the Lord that he may distrein his other tenants for it is not good but if it were for Rent it should be good because it may be the tenants at the first granted it to the Lord 22 H. 6. 42. 12 H. 7. 15. 35 H. 6. 35. custom to sell a distress is good and yet it cannot be done but by Act of Parliament And where it was objected that the amercement is personal and therefore cannot extend to the Plaintiff to that he answered that it is not meerly personal but by custom as aforesaid is now made a charge upon the Land and therefore not meerly personal Besides if the custom in this case had been that the Plaintiff for waste should forfeit his Copyhold-tenement it had been reasonable à fortiori in this case that he shall be only amerced wherefore he concluded that the custom is good and therefore that the avowant should have judgment Bramston Chief Justice that the custom is good and that he conceived to be clear First he conceived that the custom is reasonable as to the Copy-tenant for clearly by the Common Law if he suffer or do waste he shall forfeit his Copyhold and therefore this custom is in mitigation of the penalty and therefore is reasonable and that is not denied but the only doubt here is whether the custom to distrein the under-tenant for an amercement layed upon the tenant be a good custom or not and he conceived it is for the custom which gives the distress knits it to the Land and therefore not meerly personal as it was objected And if the custom had not extended to the under-tenant he might have distreined him for otherwise the Lord by such devise as there is viz. by the making of a Lease for one year by the Tenant should be defeated of his services 3 Eliz. Dyer 199. resolved custom to seise the cattle of a stranger for a Heriot is not good because that thereby the property is altered But custom that he may distrein the cattle of a stranger for a Heriot is a good custom because the distress is only as a pledge and means to gain the Heriot and in our case the Land is charged with the distress and therefore the cattle of any one which come under the charge may be distreined for it and therefore he held clearly that the custom was good and that the avowant should have Judgment Justice Barckley at this time was impeached by the Parliament of High Treason 232. A man was indicted for murder in the County Palatine of Durham and now brought a Certiorare to remove the Indictment into this Court and it was argued by Keeling at the Bar that Br ' Domini Regis de Certiorare non currit in Com' Palatinum But the Justices there upon the Bench viz. Heath and Bramston seemed strongly to incline that it might go to the County-Palatine and they said that there were many presidents in it and Justice Heath said that although the King grant Iura Regalia yet it shall not exclude the King himself and he said their power is not independent but is corrigible by this Court if they proceed erroneously and he said that in this case the party was removed by Habeas corpus and by the same reason that a Habeas corpus might go thither a Certiorare might for which cause it was awarded that they return the Writ of Certiorare and upon the return they would debate it Hillary 17º Car ' in the Common Pleaâ— â—ayton against Grange in a second deliverance 233. JOhn Layton brought a second deliverance against Anthony Grange and declared of taking of certain Cattle in a place called Nuns-field in Swassam-Bulbeck and detainer or them against gages and pledges c. The defendant made conusance as Baylift to Thomas Marsh and said that long time before the taking alledged one Thomas Marsh the father of the Plaintiff was seised of the Mannor of Michel-Hall in Swassâ—â—-Bulbeck aforesaid of which the Land in which time 〈◊〉 of mind c. was parcel and that one Anthony Cage and Dorothy his wife and Thomas Grange and Thomasine 〈…〉 of the Land in which c as in the right of the saiâ— Dorothy and Thomasine their wives in deâ—esne as of sâ—e and that they held the Land in which c. as of his Mannor of Michel-Hall by soccage viz. fealty and certain Rent payable at certain days and that the said Thomas Marsh was sâ—iâ—ed of the said services by the hands of the said Anthony Cage and Dorothy his wife Thomas Grange and Thomasine his wife as by the hands of his very Tenants and he derived the Tenancie to one Sir Anthony Cage and the Seigniory to Thomas Marsh the son by the death of the said Thomas Marsh the Father and because that fealty was not done by Sir Anthony Cage he as Bayly of the said Thomas Marsh the son did justifie the taking of the said cattle ut insâ—a feoduâ—â— dominium sue c. The Plaintiff by Protestation said that Non 〈◊〉 the Lands aforesaid of the said Thomas Marsh as of his Mannor of Michel-Hall in Swassaâ—â—-Bulbeck aforesaid by soccage viz. fealty and rent as aforesaid and pro placito said that the Defendant took the cattle as aforesaid and detained them against gages and pledges and then traversed Absque hoc that the said Thomas Marsh
made a Feoffment to the use of himself for life the remainder in tail to I. S. He in the remainder Levied a Fine And the Counsel of the Marches upon a surmise That the Tenant for life died seised according to their Instructions would settle the possession upon the heir of Tenant for life against the Conusee For their Instructions were made That where a man had the possession by the space of three years that the same should be settled upon him until trial at Law were had But the whole Court was against it because it doth appear that he had but an estate for life and so the possession appertained to him in the remainder And here it was said by Justice Barckley that their Opinion hath been That the possession of Tenant for life should be the possession of him in the Remainder as to this purpose Note that the Principal case here was although the Case before put was also agreed for Law thus Tenant in Tail levied a Fine to the use of himself for Life the remainder in Fee to I. S. and died In that Case the Council in the Marches would settle the possession upon the heir of Tenant in tail against the Purchaser who held in by the Fine which had bar'd the estate tail by which the Issue claimed and the whole Court was against it for which cause a Prohibition was granted 80. Habeas corpora was directed to the Porter of Ludlore to bring the bodies of Iohn Shielde and William Shielde into the Kings Bench the case shortly as appears upon the retorn was this Powell the Father brought a Bill in the nature of an Information against the said Iohn and William Shield before the Council of the Marches in Wales for an unlawful Practice Combination and Procurement of a clandestine Marriage in the night betwixt Mary Shield a Maid-servant and the Son of Powell who was a Gentleman of good credit and worth the Parson also being Drunk as he himself sware and the same also being without Banes or Licence for which offence they were severally Fined to the King and an hundred Marks damages given to the Plaintiff and farther ordered by the Council that they should be imprisoned till they paid their several fines to the King and damages to the Party and found Sureties to be bound in Recognisance for their good behaviour for one year and till they knew the farther Order of the Council and these were the causes which were retorned And upon this retorn Glynn who was of Counsel with the Prisoners moved many things and many of them as was conceived by the Court altogether impertinent But the Objections which were pertinent were these First That the Councel of the Marches as this case is have no Jurisdiction because the clandestine Marriage is a thing meerly Spiritual and therefore not within their instructions The second was That they have exceeded their Instructions in that they have given damages to the party above fifty pounds For by their Instructions they ought not to hold Plea where the Principal or Damages exceed fifty pounds But as to the first he said there may be this Objection That they did not punish them for the clandeâ—â—inâ— Marriagâ— which in truth is a thing meerly Spiritual but for the unlawful Practise and Combination and for the execution of it To which he answered That they have not Juristiction of the Principal and therefore not of the Accessory here note that it was afterwards said by Bramston Chief Justice That the unlawful Practise and Combination was the Principal and the clandestine Marriage but the Accessory which was not contradicted by any Farther it was objected by Glynn That they were Imprisoned for the damages of the Plaintiff and it doth not appear whether it was at the Prayer of the Party as he ought by the Law Bankes the Kings Atturny-General contrary And as to the first Their Instructions give them power to hold Plea of unlawful Practises and Assemblies And this is an unlawful Practise and Assembly and therefore within their Instructions And although that Heresie and clandestine Marriage and such offences per se are not within their Instructions yet being clad with such unlawful circumstances and practises they are punishable by them As to the second he said The Instruction which restraineth them that they do not hold Plea above fifty pounds is only in civil Actions at the several suit of the party But there is another Instruction which gives them power where the cause is criminal to assess damages according to the quality of the Offence and at their discretions As to the third Objection he said That the Retorn being that they were in execution for the damages it ought to be meant at the Prayer of the Party otherwise it could not be For which causes he prayed thâ—â— the Prisoners might be remanded And the whole Court Crooke being absent were clear upon this Retorn That they should be remanded because it appeareth that their Fines to the King were not payed And therefore although that the other matters had been adjudged for them yet they ought to be remanded for that one And as to the Objections which were made the Court agreed with Mr. Attorney except in the point of Damages and for the same reasons given by him But as to the point of the Damages whether they have gone beyond their Instructions and so exceeded their power in giving above fifty pounds damages or not It seemed to the Court they had and as it seemed to them if the Retorn had been That the Kings Fines were paid it would have been hard to maintain that the assessing above fifty pounds damages was not out of their Instructions but because the Kings Fines were not paid they were Remanded without respect had thereunto for the reasons given before 81. It was said by the Court That when Judgment is given in this Court against another and Execution upon it and the Sheriff levieth the mony the Lord Keeper cannot order that the mony shall stay in the Sheriffs hands or order that the Plaintiff shall not call for it for notwithstanding such Order he may call for it And it was farther said by the Court That an Attachment shall not be granted against the High Sheriff for the contempt of his Bayliffs And a Writ of Error is a Supersedeas to an Execution but then there ought to be notice given to the Sheriff otherwise if he notwithstanding serve the Execution he shall not run in contempt for which an Attachment shall be granted 82. Serjeant Callis came into Court and moved this case Chapman against Chapman in Trespass done in Lands within the Dutchy of Cornwal which were Borough-English where the custome was that if there were an estate in Fee in those Lands that they should go to the younger Son according tthe custome but if in Tail the should descend to the Heir at Common Law And it was moved by him that the custom was not good because it cannot
doubted thereof and did conceive that no costs should be given in this case and that upon Pilfords case 10 Rep. As to the Presidents he said that they did not bind him for perhaps they passed sub silentio And afterwards it was adjorned Johnson against Dyer 96. IN an Action upon the Case for words the Defendant having speech with the Father of the Plaintiff said to him I will take my Oath that your Son stole my Hens For which words the Plaintiff brought the Action But did not aver that he was his Son or that he had but one Son And it was holden by the whole Court Crooke being absent that the plea was not good Leake and Dawes Case 97. LEake brought a Scire facias in the Chancery against Dawes to avoid a Statute and the Case as it was moved by Serjeant Wilde was such Hopton acknowledged a Statute to Dawes and afterwards conveyed part of the Land liable to the Statute to I. S. who conveyed the same to Leake the plaintiff and afterwards the Conusor conveyed other part of the Land to Dawes the Defendant who was the Conusee by bargain and sale the Conusee extended the Lands of Leake the Purchaser who thereupon brought this Scire facias to avoid the Statute because that the Conusee had purchased parcel of the Land liable to the Statute and so exâ—inguished his Statute And this case came by Mittimus into the Kings Bench. And here it was moved by Serjeant Wilde for Dawes the Defendant in arrest of Judgment And taken by him for Exceâ—â—ion That the bargain and sale is alledged to be made to Dawes but it is not shewed that it was by Deed inrolled but yet it is pleaded That Virtute cujus viz. of Bargain and Sale the Conusee was seised and doth not shew that he entred And here it was said by the Court There are two points First Whether an Inrolment shall be intended without pleading of it Secondly Admitting not what Estate the Bargaineâ— hath as this Case is As to the first Justice Iones took this difference Where a man pleads a bargain and sale to a stranger and where to himself In the first case he need not plead an Inrolment but contrary in 〈…〉 Barckley agreed it and took another difference betwixt a Plea in Bar and a Count In a Count if a man pâ—â—ad a grant of a Reversion without attorâ—ment it is good contrary in Bar so in this Case The second question is admitting that the Deed shall be intended not to be inrolled without pleading What estate Dawes the Conusee hath before Entry the Deed not being inrolled For it was agreed by the whole Court That if he be a disseior or if he hath but an estate at will that the Statute is suspended And first whether he hath an estate at will at the common Law or not without Entry Barckley that he had But Iones and Bramston contrary and it seemed that he had an estate at will by the Statute And put the case of feoffment in Bucklers case 3. Rep. Where the Feoffee entreth before Livery that he hath an estate at will and Barckley agreed therein with him for the possibility of inrolment But Iones conceived that an estate at will could not be executed by the Statute And it was adjorned Curtisse against Aleway 98. THe Case was thus A woman was dowable of certain Land within the Jurisdiction of the Council of the Marches of which I. S. died seised She accepted a Rent by parol of the Heir out of the same Land in satisfaction of her Dower And afterwards there was a Composition betwixt them for defalcation of that Rent Afterwards there was an Action brought before the Council of the Marches for the Arrerages of the Rent where the question was Whether the Rent were in satisfaction of her Doweâ— or not and it was moved by Moreton for a Prohibition And it was granted by the Court because the same did concern Freehold of which they have not Jurisdiction for by the express Proviso of the Statute of 34 H. 8. of holding of plea of Lands Tenements Hereditaments or Rents But because that it appeared by the Bill that the woman was dead so as the realty was turned into the personalty viz. into Debt And therefore it was conceived by Evers Attorney of the Marches That although it was not within the Jurisdiction before yet being now turned into a personal Action that they have Jurisdiction But Iones and Barckley Justices were of a contrary Opinion and Iones said That an Action of Debt for Arrerages would not lie before them because it touched the realty which was denied by none but Evers Attorny Edwards against Omellhallum 99. IN a Writ of Error to reverse a Judgment given in Ireland in an Ejectione firme the Case was this as it was found by special verdict A Mortgager made a Lease for years by Deed indented and afterwards performed the Condition and made a Feoffment in Fee the Lessee entred upon the Feoffee who re-entred and the Lessee brought an Ejectione firme And the only question as it was moved by Glynn was Whether this Lease which did inure by way of Estople should binde the Feoffee or no and by him it did and Rawlyns case in the 4 Rep. 53. expresly and 1 2 Phil. Mar. Dyer agreeth And the whole Court Crooke only absent without any argument were clear That it should binde the Feoffee for all who claim under the Estople shall be bound thereby vid. Edriches case 13 H. 7. 100 Serjeant Iermayn came into the Court and shewed cause why a Prohibition should not be granted in the case of Skinner before who Libelled for Tythes of Coppice rooted up He agreed that for timber-trees above the growth of twenty no Tithes should be paid and so he said was the common Law before the Statute of 45 E. 3. which was but a confirmation of the Common Law And he said That as the body of the tree is priviledged so are the branches and root also which is a proof that where the body is not priviledged there neither shall be the root â—or branches And in our Case he Libels for roots of underwoods and the underwood it self being titheable therefore the roots shall be also tithable And he said that the 〈…〉 are not parcel of the Land But Justice Barckley was against it for they are not crescentia nor renovantia as Tithes ought to be and therefore no Tithes ought to be paid for them and he said that a Prohibition hath many times been granted in the like cases But Dr. Skinner did alledge a custome for the payment of Tithes of them And upon that they were to go to trial And here it was said that Dr. Skinner had used to have some special particular benefit of the Parishioners in lieu of Tithe of Roots And thereupon Barckley said That it is a Rule where the Parishioner doth any thing which he is not compellable by the Law to do
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
do so it is void And for that he cited Clegat and Batchellers Case before that the obligation in such Case is void and he said that the reason which was given by one why the Bond should be void was grounded upon the Statute of Magna Charta cap. 29. which wills That no freeman should be ousted of his Liberties but per legem terrae and he said that the word Liberties did extend to Trades and Reeve said that by the same reason you may restrain a man from using his Trade for a time you may restrain him for ever And he said that he was confident that you shall never find one Report against the Opinion of Hull 2 H. 5. For the other part of the difference he cited Hill 17 Iac. in this Court Rot. 1265. and 19 Iac. in the Kings Bench Braggs case in which Cases he said it was adjudged against the Action upon a Bond but with the Action of the Case upon a promise that it would lie But note that all the Judges viz. Foster Reeve and Crawley Bankes being absent held clearly that if the condition be against the Law that all is void and not the condition only as was objected by Evers and it was adjorned Apsly against Boys in the Common Pleas in a Scire facias to execute a Fine upon a Grant and Render Intrat Trin. 16 Car. Rot. 112. 239. THe Case upon the Pleading was this A fine upon a Grant and Render was levied in the time of E. 4. upon which afterwards a Scire facias was brought and Judgment given and a Writ of seisin awarded but not executed Afterwards a fine Sur coâ—usans de droit come ceo c. with Proclamations was levied and five years passed and now another Scire facias is brought to execute the first fine to which the fine Sur conusance de droit come ceo is pleaded so as the only Question is Whether the fine with Proclamations shall bar the Scire facias or not Serjeant Gotbold for the Plaintiff it shall not bar and his first reason was because not executed 1 Rep. 96 97. and 8 Rep. 100. If a disseisor at the Common Law before the Statute of Non-claim had levied a fine or suffered Judgment in a Writ of Right until Execution sued they were no bars and a fine at Common Law was of the same force as it is now and if in those Cases no bar at Common Law until Execution that proves that this interest by the fine upon grant and render is not such an interest as can bar another fine before execution Besides this Judgment by the Scire facias is a Judgment by Statute and Judgment cannot be voided but by error or attaint Further a Scire facias is not an Action within the Statute of 4 H. 7. and therefore cannot be a bar 41 E. 3. 13. 43 E. 3. 13. Execution upon Scire feci retorned without another plea and it is not like to a Judgment for there the party may enter but not here Besides it shall be no bar because it is executory only and in custodia legis and that which is committed to the custody of the Law the Law doth preserve it as it is said in the 1 Rep. 134. b. and he compared it to the Cases there put and a fine cannot fix upon a thing executory and the estate ought to be turned to a right to be bound by a fine as it is resolved in the 10 Rep. 96. a. 9 Rep. 106. a. Com. 373. And the estate of him by the first fine upon grant and render is not turned to a right by the second fine Lastly the Statute of 4 H. 7. is a general Law and in the affirmative and therefore shall not take away the Statute of West 2. which gives the Scire facias and in proof of that he cited 39 H. 6. 3. 11 Rep. 63. 68. and 33 H. 8. Dyer 15. I agree the Case which hath been adjudged that a fine will bar a Writ of Error but that is to reverse a Judgment which is executed but here the Judgment is not executed and therefore cannot be barred by the fine wherefore he prayed Judgment for the Plaintiff Note that it was said by the Judges that here is no avoiding of the finâ— but it shall stand in force but yet notwithstanding it may be barred and they all said that he who hath Judgment upon the Scire facias upon the first fine might have entred and they strongly inclined that the Scire facias is barred by the fine and doth not differ from the Case of a Writ of Error but they delivered no opinion Taylers Case 240. THe Case was thus The Issue in Tail brought a Formedon in Descend and the Defendant pleaded in Bar and confessed the Estate Tail but said that before the death of the Tenant in Tail I. S. was seised in fee of the lands in question and levied a fine to him and five years passed and then Tenant in Tail died whether this plea be a bar to the Plaintiff or not was the Question and it rested upon this Whether I. S. upon this general Plea shall be intended to be in by disseisin or by feoffment for if in by disseisin then he is barred if by feoffment not and the opinion of the whole Court was clear without any debate that he shall be intended in by disseisin and so the Plaintiff is Bar as the Books are 3 Rep. 87. a. Plow Com. Stowels Case and Bankes Chief Justice said that it shall not be intended that Tenant in Tail had made a feoffment to bar his issues unless it be shewed and it lies on the other part to shew it and a feoffment is as well an unlawful Act as a dissâ—isin for it is a discontinuance Commins against Massam in a Certiorare to remove the proceedings of the Commissioners of Sewers 241. THe Case upon the proceedings was thus Lessee for years of Lands within a level subject to be drowned by the Sea covenanted to pay all assessments charges and taxes towards or concerning the reparation of the premisses A wall which was in defence of this level and built straight by a sudden and inevitable Tempest was thrown down one within the level subject to be drowned did disburse all the mony for the building of a new wall and by the order of the Commissioners a new wall was built in the form of a Horshooe afterwards the Commissioners taxed every man within the level towards the repaying of the sum disbursed one of which was the lessee for years whom they also trusted for the collecting of all the mony and charge him totally for his land not levying any thing upon him in the reversion and also with all the damages viz. use for the mony Lessâ—e for years died the lease being within a short time of expiration his executor enters and they charge him with the whole and immediately after the years expired the executors brought this
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
thing cannot be apportioned 100 pl 172. Where an Arbitrament shall be said to be incertain where not 13. pl. 42. Where an Award shall be said to be according to the submission where not 77. pl. 122. The submission of an Infant to an Arbitrament is void 111. pl. 189. 141. pl. 215. Arrerages Grantee of a Rent charge in see distraines for Arrerages and then grants it over whether the Arrerages are lost or not quaere 103. pl. 178 Assent and Consent An Executor is compellable in the Ecclesiastical Court to assent to a Legacy 96 pl. 167. What shall be said a good assent to a Legacy and where an assent after the death of the Devisee shall be good where not 137. pl. 209. Assets Where Assets or not Assets may be tried by the Spiritual Court See Tit. Iâ—risdiction Assignee Assignments A Feme sole conveys a terme in trust and marries the Husband assignes it over the trust passes not the Estate 88. pl. 141. Assumpsit Where there is a mutual and absolute promise he that brings the Action needs not to say qâ—od paratus est to do the thing which he promisâ—d and that the other refused to accept it otherwise where the promise is conditional 75. pl. 114. Promise not to exercise ones Trade in such a Town is good otherwise in case of a Bond. 77. pl. 121. 191. pl. 238. Promise made to an Attorney of one Court for Sollicitation of a Cause in another Court is a good consideration upon which to ground an Assumpsit 78. pl. 123. Promise is an entire thing and cannot be apportioned See Tit. Apportionment Attachment An Attachment lies against the Steward of an inferiour Court for dividing of Actions 141. pl. 214. See more of Attachments in Title Contempt Attorney Infant cannot be an Attorney 92. pl. 154. An Administrator brought a writ of Error to reverse the Outlawry of the intestate for murder and allowed to appear by Attorney 113. pl. 190. An Attorney at Common Law is an Attorney in every inferiour Court and therefore cannot be refused 141. pl. 214. Audita querela In an Audita querela the Law doth not require such strictness of pleadiâ—g as in other Actions 69. pl. 108. Averment Where and in what Cases an Averment shall be good and necesâ—ary and where not 1. pl. 3. 15. pl. 37. 19. 62. pl. 96. Avowry Grantee of a Rent charge in Fee distrains for Arrerages and then grants it over whether he ought to avow or justifie quaere 103. pl. 178. Bailiff SHeriff of a County makes a Mandat Balâ—vis suis to take the body of a man and the Bailiffs of a Liberty retorn a Rescous and good 25. pl. 58. Bankrupts An Inholder is not within the Statutes of Bankrupts Copyhold Land is No Inholder at the time of the purchase but afterwards not within the Statutes 34 pl. 67. Baron Feme What things of the Wives are given by the Law and the intermarriage to the Husband what not and what things he shall gain by Letters of Administration after her decease 44. pl 69. Baron and Feme cannot joyn in a Writ of Conspiracie in what other Cases they may joyn 47. pl. 75. See 212. pl. 249. Whether Trover and Conversion against a Baron and Feme and a count of a conversion ad usum 〈◊〉 be 〈◊〉 or not quaere 60 pl. 94. Seâ— 82. pl. 134. Feme â—ole conveys a 〈…〉 her Husâ—and that shall â—e covenants with her 〈◊〉 to intermeddle with it and yet after marriage assignes it over the Feme shall have remedy in Equity 88 pl. 141. Baron and Feme present to a Church to which they have no right this gains nothing to the Feme otherwise when they enter into Land or when the Feme hath right 90. pl. 146. One said of the Wife of another that she was a Bawd and kept a Bawdy-house for which they joyned in Action and declared ad damnum ipsorum and held good 212 pl. 249. Bar. Bar in one Ejectione firme â—is a Bar another brought for the same Ejectment but not for a new Ejectment 59. pl. 93. Plea in bar incertain is naught See Tit. Pleadings c. Tenant for life the Reversion to an Ideot an Uncle heir apparent to the Ideot levyes a Fine and dyes Tenant for life dyes the Ideot dyes whether the Issue of the Uncle who levied the Fine shall be barred by it or not quaere 94. pl. 164. 146. pl. 216. Certiorari UPon a Certiorari to remove an Indictment of â—orcible entry denier of one shall not 〈◊〉 the others of the benefit of the Certiorari they offering security according to the Statute of 21 Iac ' and the Sureties being worth ten pounds cannot be reâ—used and after a Certiorari brought and tender of sufficient sureties the Justices proceedings are coram non judice 27. pl. 63. A. and B. were indicted for a murder B. flies and A. brings a Certiorari to remove the Indictment into the Kings Bench whether all the Record be removed or but part quaere 112. pl. 190. Certiorari lies to remove the proceedings of the Commissioners of Sewers See Title Sewers Cessante causa cessat effectus Outlawry reversed the Original is revived for Cessanto cause c. 9. pl. 21. Chancery After Execution and Moneys levied the Lord Keeper cannot order the Money to remain in the Sheriffs hands or that the Plaintiff shall not call for it 54. pl. 81. Charter of Pardon Whether a Pardon of the King of Felony homicide c. doth pardon murder or not quaere 213. pl. 250. Commission Commissioners Commissioners execute a Warrant with a stranger to the Warrant yet good 92. pl. 155. Confirmation Baron and Feme Donees in special Tailâ— the Baron levies a Fine and dyes he in the Reversion confirmes to the Wife her Estate to have to her and her Heirs of her body by the Husband-ingendred what is wrought by this Confirmation quaere 146. pl. 216. Consideration What shall be said a good Consideration upon which to ground an Assumpsit what not 55 pl. 86. 78. pl. 123. Contempt Attachment ought not to be granted against the Sheriff for Contempt of his Bailiffs 54. pl. 81. Upon Error brought notice ought to be given to the Sheriff otherwise he shall not incur a Contempt for serving execution 54. pl. 81. No Attachment without an Affidavit in-writing 129. pl. 208. Attachment lies against the Steward of an inferiour Court for dividing of Actions 141. pl. 214. Copyhold Copyholds not granted in Reversion except by Custom 6. pl. 13. Copyhold is within the Statutes of 13 Q. 7. and 1 Iac. 1. of Bankrupts 36. The King grants a Copyhold for life generally whether this destroys the Copy-hold or not quaere Descent of a Copyhold shall not take away an entry 6. pl. 13. Coram non judice After a Certiorari brought to remove an Indictment of forcible entry and tender of sufficient sureties according to the Statute of 21 Iac. the proceedings of the Justices
be at one time customary and go according to the custom and at another guildable And the whole Court Crooke only being absent were against him that the custom was good Hicks against Webbe 83. IN Trespass for a way the Defendant did justifie and said that he had a way not only ire equitare averia sua fugare but also carrucis carreragiis carriare The Plaintiff traversed it absque hoc that he had a way not only ire equitare c. in the words aforesaid and thereupon they were at issue and found for the Plaintiff Glynn moved in arrest of Judgment that the Issue was ill joyned because it was not a direct affirmative but by inducement only And the whole Court was against him And Justice Iones said That if I say that not only Mr. Glynn hath been at such a place but also Mr. Iones without doubt it is a good affirmative that both have been there But they all agreed that the pleading was more elegant than formal 84. In the Case betwixt Brooke and Boothe Justice Barckley said that it is a Rule That if there be two things alledged and one of necessity ought to be alledged and he relies on-only upon the other it is no double Plea As if a man plead a Feoffment with Warranty and relieth upon the Warranty it is not double 85. Justice Barckley said That the Court of the Exchequer they may make a Lease for three Lives by the Exchequer-Seal Clarke against Spurden 86. IN a Writ of Error to reverse a Judgment given in the Court of Common Pleas the case was shortly thus A. wife of I.S. intestate promiseth to B. to whom Adnistration was committed that if he shall relinquish the Administration at the request of C. and suffer A. to Administer that A. will discharge B. of two Bonds In Assumpsit brought by B. in the common Pleas he alledged that he did renounce Administration and suffered A. to Administer and that A. had not discharged him of the two Bonds And it was found for the Plaintiff And thereupon Error was brought because B. doth not shew that he did renounce the Administration at the request of C. And Rolls for the Plaintiff in the writ of Error did assign the same for Error Justice Barckley all the other Justices being absent held that it was Error for consideration is a thing meritorious and all ought to be performed as well the request on the part of C. as the permission of the part of B. which ought to be shewed For perhaps B. was compelled to relinquish it in the Ecclesiastical Court as it might be for of right the wife ought to Administer And therefore it ought to have been averred that it was at the request of C. And therefore if it had been that he should renounce at the charge of C. it ought to be averred that it was at the charge of C. And it was adjourned 87. A man Libelled in the Spiritual Court for Tithes for barren cattle and it was moved for a Prohibition upon this suggestion viz. That he had not other cattle than those which he bred for the Plough and Pale and thereupon Barckley being alone there granted a Prohibition And the same Parson also Libelled for Tithes of Conies and for that also he granted a Prohibition for they are not Titheable if not by custome And here Barckley said That if Land be Titheable and the Tenant doth not plough it and manure it yet the Parson may sue for Tithes in the Ecclesiastical Court North against Musgrave 88. IN Debt upon the Statute of 1 2 Phil. Mar. c. 12. the words of which Statute are That no man shall take for keeping in pound impounding or poundage of any manner of distress above the sum of four pence upon pain of forfeiture of five pounds to be paid to the party grieved And the Plaintiff shewed that his Cattle were distreyned and impounded and that the Defendant took of him ten pence for the poundage And thereupon the Plaintiff brought an Action for the penalty of five pounds and found for the Plaintiff And the Judgment was That he should recover the five pounds and damages ultra praeter the mony taken for the poundage And thereupon a Writ of Error was brought and three things assigned for Error First because the Action was brought for the penalty of five pounds only and not for the six pence which was taken above the allowance of the Statute which ought not to be divided Which was answered by Justice Barckley all the other Justices being absent That notwithstanding it is good for true it is that he cannot bring his Action for fifty shillings part of the penalty because it is entire but here are two several penalties and he may divide and disjoyn them if he will or he may wave the six pence For quilibet potest renunciare juri pro se introducto The second was That he doth not demand that which is ultra praeter the four pence given by the Statute and yet the Judgment is given for that which is not good To which Justice Barckley said That the Judgment was good For no judgment is given for that which is ultra praeter the four pence but only for the four pounds because he doth not demand it And we cannot judge the Judgment to be erroneous by Implication The third Objection was That Costs and Damages are given which ought not to be upon a penal Law For he ought not to have more than the Statute giveth and therefore upon the Statute of Perjury no Costs are given so upon the Statute of Gloucester of Wast the Plaintiff shall recover no more than the treble value But Rolls who was on the contrary said That there are many presidents in the common Pleas that Damages have been given upon this Statute But Barckley and Iones who afterwards came and seemed to agree with Justice Barckley in the whole was against it That no Damages ought to be given and desired that the Presidents might be viewed But here Rolls offered this difference Where the penalty given by the Statute is certain as here upon which he may bring Debt there he shall recover Damages but where the penalty is uncertain as upon the Statute of Gloucester for treble damages the Statute which giveth the treble value and the like there because it is incertain he shall have no more Barckley asked Mr. Hoddesdon If the Informer should recover Damages And he and Keeling Clerk of the Crown answered No but said Damages should be given against him and it was adjourned 89. Skinner Libelled in the Ecclesiastical Court for thâ— Tithes of Roots of a Coppice rooted up And Porter prayed Prohibition And it was said by Iones and Barckley Justiceâ—â— no other Justice being present That if cause were not shewed before such a day that a Prohibition should be awarded because it is ad exheredationem and utter destruction of 〈◊〉 And the Opinion was that the