Deed which bears date beyond Sea that the Action will not lie 13 H. 4. 5 6. An Obligation bore date in France and was made according to the Law of France 6 R. 2 cap. 2. Where the Specialtie bears date there the Action shall be brought The first book that speaks of Deeds bearing date out of England 20 H. 6. 28 29. 20 E. 4. 1. 21 E 4. 72. You must suppose then That it was at a place in England and that is but a fiction of Law and you shall never make a man subject to the penalty of a Statute upon a fiction of Law C. 11. part 51. A Disseisor makes a Lease for life or years the Disseisee shall not not have an Action of Trespass vi armis against him because he comes in by title For this fiction of Law That the Frank-tenement hath always been in the Disseisee shall not have Relation to make him who comes in by title to be a Trespassor vi armis 18 H. 6. 23. A Reversion is expectant upon an estate for life and in the mean time betwixt the Grant and the Attornment the Lessee commits Waste yet although the Attornment relate to make the Grant good ab initio yet the Relation being a fiction of Law will not make the Lessee punishable for Waste Then in this our Case the Deed bears date beyond the Sea and then to make Dunkirk to be in England by a fiction in Law shall not be prejudicial to the Defendant Com. 369. The preamble of a Statute is the best Interpreter of the Statute In the Statute of 13 R. 2. the preamble saith Because the Admirals and their Deputies do hold their Sessions c. in prejudice of the King and of the common-Common-Law and in destruction of the common people c. But this Deed bearing date beyond the Sea is no prejudice to the King nor to his Franchises nor to his people to be sued in the Admiralty 32 H. 8. cap. 14. The suit within the Admiralty ought to concern Charter-partie and Fraighting of a Ship For by that Statute it was enacted That if any Merchant-stranger as Mullibeck was by long delaying and protracting of time As in our Case otherwise then was agreed between the said Merchants in or by the said Charter-partie c. shall have his remedy before the Admiral which Lord Admiral shall take such Order c. In our Case at Bar It was a Charter-partie made beyond Sea 2. It was for the freighting of a Ship 3. For the breach of it was the the suit in the Court of Admiralty But admit that this point be against me then for the second point I do conceive that he who is punishable by the Statutes must be Prosecutor which the Defendant is not for what he hath done he did by vertue of a Letter of Attorney and he did it in the name of another and it is the Act of the other C. 9. part 76. Combes Case If a man have power to do an Act by force of a Letter of Attorney it ought to be done in the name of him who gives the power 3 Ma. Dyer 132. If Surveyors have power to make Leases if they make the Leases in their own names it is not good but they ought to be made in his name who giveth the power 11 Eliz. Dyer 283 The Statute of R. 3. giveth power to Cestuy que use to make Leases and he makes a Letter of Attorney the Attorney must make the Leases in the name of Cestuy que use who hath the power by the Statute C 9. part 75. A Copyholder may surrender by Attorney because it is his own surrender Vi Perkins 196. 199. A Feoffment with a Letter of Attorney to the wife to make Livery is good but then the wife must make the Livery in the name of her husband Secondly in this Case at Barr the beginning and the prosecution of the Suit was altogether for the benefit of Mullibeck and so it appears by the Records of the Court and no notice is there taken of the Attorney but of the Master L. 5. E. 45. A Writ is directed to the Sheriff and the Under-Sheriff makes a false retorn the Sheriff shall be amerced and not the Under-Sheriff for the Law doth not take notice of him 7 Eliz. Dyer 239. The Customer himself and not his Deputie shall be charged And so in our Case Mullibeck being partie to the whole ought to be accounted the partie prosecuting within the words of the Statutes The Statute of 4 H. 7. cap. 27. is so as they pursue their claims within five years such prosecuting or pursuing ought to be by the partie himself C. 9. part 106. If one of his own head make claim it is not good claim for to avoid the Fine c. The Statute of 16â— R. â— cap. 5. of Premunire makes against me for there the Procurours Councellors Sollicitors Abettors and Attorneys are named by the express words of the Statute and there is an express provision against them But in our Case it is not so for if our Statute had intended to extend to Councellors Attornies c. it would have expresly named them There are divers exceptions which I take to the Verdict First There is variance in the place betwixt the Declaration and the special Verdict for the Declaration layeth the Contract to be made at Dunkirk in England and the special Verdict finds it to be made at Dunkirk extra partes transmarinas Secondly The Declaration is to take in Mariners and the special Verdict is to take in Men. Thirdly the Declaration is A Ship to be prepared and the Verdict is to be in readiness Fourthly The Statute of 15 R. 2. and 2 H. 4. gives the Action by way of VVrit and here it is by Bill 42 Ass 11. There one was taken in Execution and escaped and there a Bill was exhibited for the escape and it was holden because the Statute of West 2. gave a Writ of Debt it shall not be extended by equity to a Bill of Debt Com. 38. a. and Com. 36 37. Plats Case There the Judgment is given upon a Bill for an escape but Mr Plowden said that it seemed to divers a hard Case The Statute of â—8 Eliz. cap. 5. of Informers is in the negative viz. That none shall be admitted or received to pursue any person upon any penal Law but by way of Information or original Action and not otherwise Mich. 29 Eliz. in Clarks Case it was resolved that the Statute of 18 Eliz. was a penal Law and the partie must not be sued by Bill but as the Statute hath prescribed 27 H. 6. 5. There upon Premunire facias it was adjudged good by Bill but there the Action was not directed so precisely by the Statute viz. in what manner the partie should proceed There are no presidents that an Action of Debt hath been brought for pursuing in the Court of Admiralty but in such Case a Prohibition granted only
man and his heirs such Seat and he and his heirs have used to repair the said Seat If another will libell against him in the Spirituall Court for the same Seat he shall have a Prohibition And he said That he had seen a Judgement in 6. E. 6. That if Executors lay a Grave Stone upon the Testator in the Church or set up his Coat-armour in the Church If the Parson or Vicar doth remove them or carry them away that they or the heir may have their Action upon the Case against the Parson or Vicar Note in the principall no Prohibition for the reasons before Trinit 10. Jacobi in the Common Pleas. 287 The Archbishop of York Sedgwick's Case THe Archbishop of York and Doctor Ingram brought and exhibited a Bill in the Exchequer at York upon an Obligation of seven hundred pound and declared in their Bill in the nature of an Action of Debt brought at the common Law which matter being shewed unto the Court of Common Pleas by Sedgwick the Defendant there A Prohibition was awarded to the Archbishop and to the said Court at York And Cook chief Justice gave the reasons wherefore the Court granted the Prohibition 1. He said because the matter was meerly determinable at the common Law and therefore ought to be proceeded in according to the course of the common Law 2. Although the King hath granted to the Lord President and the Councel of York to hold pleas of all personall Actions yet he said they cannot alter the form of the proceedings For as 6. H. 7. 5. is The King by his Grant cannot make that inquirable in a Leet which was not inquirable there by the Law nor a Leet to be of other nature then it was at the common Law And in 11. H. 4. it is holden That the Pope nor any other person can change the common Law without a Parliament And Cook vouched a Record in 8. H. 4. That the King granted to both the Universities that they should hold plea of all Causes arising within the Universities according to the course of the Civil Law and all the Judges of England were then of opinion That that grant was not good because the King could not by his Grant alter the Law of the Land with which case agrees 37. H. 6. 26. 2. E. 4. 16. and 7. H. 7. But at this day by a speciall Act of Parliament made 13. Eliz. not printed The Universities have now power to proceed and judge according to the Civil Law 3. He said That the Oath of Judges is viz. You shall do and procure the profit of the King and his Crown in all things wherein you may reasonably effect and do the same And he said That upon every Judgement upon debt of forty pound the King was to have ten shillings paid to the Hamper and if the debt were more then more But he said by this manner of proceeding by English Bill the King should lose his Fine 4. He said That if it was against the Statute of Magna Charta viz. Nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum vel per legem terrae And the Law of the Land is That matters of fact shall be tried by verdict of twelve men but by their proceedings by English Bill the partie should be examined upon his oath And it is a Rule in Law That Nemo tenetur seipsum prodere And also he said That upon their Judgement there no Writ of Error lyeth so as the Subject should by such means be deprived of his Birth-right 5. It was said by all the Justices with which the Justices of the King's Bench did agree That such proceedings were illegall And the Lord Chancellor of England would have cast such a Bill out of the Court of Chancery And they advised the Court of York so to do and a Prohibition was awarded accordingly Trinit 10. Jacobi in the Common Pleas. 288 Doctor HUTCHINSON's Case DOctor Hutchinson libelled in the Spirituall Court against one of his Parishioners for Tithes The Defendant there shewed that the Doctor came to the Parsonage by Symony and Corruption And upon suggestion thereof made in the Common Pleas prayed a Prohibition Doctor Hutchinson alledged that he had his pardon and pleaded the same in the Spirituall Court And notwithstanding that the Court granted a Prohibition because the Pardon doth not make the Church to be plena but maketh the offence onely dispunishable But in such case If the King doth present his presentee shall have the Tithes Trinit 10. Jacobi in the Common Pleas. 289 NOte by Cook Chief Justice that these words viz. Thou wouldest have taken my purse from me on the high way are not actionable But Thou hast taken my money and I will carry thee before a Justice lay felony to thy charge are actionable Mich. 11. Jacobi in the Common Pleas. 290 HATCH and CAPEL's Case IN an Action upon the Case upon an Assumpsit brought against the Defendant The Plaintiffe declared How that one Hallingworth who was the Defendants Husband was indebted unto the Plaintiffe eight pound ten shillings for beer and that he died and that after his death the Plaintiff demanded the said mony of the Defendant his wife and she in consideration that he would serve her withbeer promised that she would pay unto the said Plaintiff eight pound ten shillings and for the rest of the beer at such a day certain And the Plaintiffe did averr That he did sell and deliver to her Beer and gave her day for the payment of the other money as also for the Beer delivered unto her and that at the day she did not pay the Money Cook and all the other Justices agreed That the Action would well lie and that it was a good Assumpsit and a good consideration for they said That the forbearance of the money is a good consideration of it selfe and they said That in every Assumpsit he who makes the promise ought to have benefit thereby and the other is to sustain some losse And judgement was given for the Plaintiff Mich. 11. Jacobi in the Common Pleas. 291 NORTON and LYSTERS Case IN the Case of a Prohibition the Case was this Queen Elizabeth was seised of the Manor of Nammington which did extend into four Parishes viz. Stangrave and three other And the Plaintiff shewed That he was seised of three Closes in Stangrave and prescribed That the said Queen and all those whose Estate he hath in the said Closes had a Modus decimandi for the said three Closes and for all the Demeanes of the said Manor in Stangrave And whether the Venire facias should be de parochia de Stangrave or of the Manor was the question And it was resolved by the whole Court That the Visne should be of the Parish of Stangrave and not of the Manor And the Difference was taken when one claimes any thing which goes unto the whole Manor and when only to
Contracts made upon the Sea by them or their Factors And for the Antiquity of the Court v. t' E. 1. sitz t' Annuity 7 R. 2. t' trespas in Statham And so long as there hath been any Commerce and Traffique by this Kingdom so long there hath been a Court of Admiralty 3. He said The Court of Admiralty is no Court of Record in which a Writ of Error lieth 37 H. 6. acc ' 4. He considered the place And that he said was of things super altum mare only as appeareth by the Stat. of 13 R. 2. And he said That all the Ports and Havens within England are infra corpus Comitatus and vouched 23 H. 6. 30 H. 6. Hollands Case who was Earl of Exeter and Admiral of England who because he held plea in the Court of Admiralty of a thing done infra Portam de Hull damages were recovered against him of 2000l And he said That if the Court and Civil Law be allowed then he said the Customs of that Court ought to be allowed and he said That the Custome of the Civil Law is That in no case the Surety is chargeable when the Principal is sufficient And he agreed with the Doctors That the word Haeredes ought to be in the Stipulation because those beyond the Seas did not take any cognisance of the word Executors Also he said That they may take the body in Execution which are for the most part the Masters of the ships and Merchants who are transeuntes and therefore if they could not arrest their bodies they might perhaps many times lose the benefit of their suits But he said that in no case they might take forth Execution upon Lands And he said That if a Contract be made in Paris in France it shall be tryed either by the Common Law or by the Law of France and if it be tryed here then those of France shall write to the Justices of England and shall certifie the same unto them And he said That in Sir Robert Dudley's Case it was allowed for good Law where a Fine was levied and acknowledged in Orleance in France which was certified and allowed for good by the Common Law here in England But he said That the Civil Law could not determine of the Fine And to conclude he said That no Custome can be good which is against an Act of Parliament The principal Case was adjourned Mich. 13 Jacobi in the Kings Bench. 360. The MAIOR of YORK'S Case IN an Action of False Imprisonment brought It was holden by the whole Court 1. That no man can claim to hold a Court of Equity viz of Chancery by Prescription because every Prescription is against Common Right and a Chancery-Court is founded upon Common Right and is by the Common Law 2. It was holden per Curiam That the King by his Charter cannot grant to another any of the Customs of London But the like Liberties Franchises and Customs as London holdeth or useth the King by his Letters Patents may grant Quaere because the Customs in London are confirmed by Act of Parliament Mich. 13 Jacobi in the Kings Bench. 361. LAMBERT and SLINGBY'S Case A Man brought an Action of Debt as Administrator and took the Defendants body in Execution The Sheriffe suffered him to escape And afterwards a Will was found by which Will the said Administrator is nominated Executor The Question now was Whether he might maintain an Action against the Sheriffe for the Escape as Executor when he was but Administrator at the time and it was the opinion of the Court that the action of Debt against the Sheriff upon the Escape would lie and that the same Debt should be assets in the Executors hands And it was holden cleer That the Executor of an Executor might have Debt upon the Escape for that he is Executor to the first Testator and therefore à fortiori the Action in the principal Case would lie Mich. 13 Iacobi in the Common-Pleas 362. IT was holden by the Court That if a man present by Usurpation to my Advowson within six moneths I may have a Quare Impedit But after the six moneths past if the Church become void I cannot present but am put to my Writ of Right of Advowson And that if a man usurpeth upon the King he is put to his Quare Impedit within the six moneths And it was holden That a double Usurpation upon the King doth put him to his Writ of Right v. 22 24 E. 3 acâ— Pasch 13 Iacobi in the Kings Bench. 363. OWEN alias COLLIN'S Case JOhn Owen alias Collins of Godstow in the County of Oxford was indicted and arraigned of High-Treason for speaking these traiterous English words at Sandwich in the County of Kent viz. If the King be excommunicate by the Pope it is lawfull for every man to kill him and it is no murder For as it is lawfull to put to death a man that is condemned by a Temporal Judge so it is lawfull to kill the King if he be excommunicate by the Pope For that is the execution of the Law and this of the Popes supreme sentence The Pope being the greater includes the King being the lesser To which words he pleaded Not guilty And the Evidence to the Jury was the Major of Sandwich a Parson of the same Town and the Servant of the Town-Clark And this was the sum of the Evidence That the said Owen coming from S. Lucar in Spain spake the said words to divers persons who told them to the Major whereupon the said Major had conference with Owen and then he spake the like words unto the Major and thereupon the Major tendred unto him the Oath of Allegiance which he refused to take and he put his hand to awriting containing the said words as his opinion and further said That if he had twenty hands he would put them all to it The Exception which Owen took unto the Evidence given against him was That he did not speak of the King of England But the same was said to be a simple Exception For before he spake the words to the Major the Major asked him if he were an Englishman or not To which he answered that he was and then after he spake the said words to the Major which must necessarily have reference to the speeches which were before betwixt him and the Major And Cook Chief Justice said That if he had not spoken of the King of England but of the King generally yet it had included the King of England The matter of his Indictment of Treason was not grounded upon the Statute of Supremacie but upon the common-Common-Law of which the Statute of 25 â— 3. is but an Explâ—nation which was his intent to compass the death of the King And he said That notwithstanding that the words as to this purpose were but conditional viz. If he were Excommunicate yet he said it was High-Treason For proof of which two Cases were cited The Duke of Buckingham in
contract was determined and not in esse at the time of promise But he said it was otherwise upon a consideration of Marriage for that is alwayes a present consideration and alwayes a consideration because the party is alwayes married Windham to the same intent and compared it to the Case of 5. H. 7. If one sell an horse to another and after at another day will warâ—ant him to be good and sound of limb and member it is void warranty for it ought to have been at the same time that the horse was â—old Periâ—m Justice contrary for he said This case is not like to any of the cases which have been put because there is a great difference betwixt Contracts and this Action For in Contracts the consideration and promise and sale ought to concur because a Contract is derived of con trahere which is a drawing together so as in Contracts every thing requisite ought to concur as the consideration of the one side and the promise or sale of the other side But to maintain an Assumpsit it is not requisite for it is sufficient if there be any moving cause or consideration precedent for which cause or consideration the promise was made and that is the common practice at this day For in Assumpsit the Declaration is That the Defendant for and in consideration of ten pounds to him paid postâ—a silicet a day or two after super se assumpsit c. and that is good and yet there the consideration is executed And he said that Hunt and Baker's case which see 10. Eliz. Dyer 272. would prove it The case was this The Apprentice of Hunt was arrested when Hunt was in the Country and Baker one of Hunts neighbours to keep the Apprentice out of the Counter became his Baile and paid the debt Afterwards Hunt returning out of the Country thanked Baker for his neighbourly part and promised him to repay him the said summ Upon which Baker brought an Action upon the Case upon the promise And it was adjudged that the Action would not lie not because the consideration was precedent to the promise but because it was executed and determined long before But there the Justices held That if Hunt had requested Baker to have been surety or to pay the debt and upon that request Baker paid the debt and afterwards Hunt promiseth for that consideration the same is good for the consideration precedes and was at the instance and request of the Defendant So here Sydenham became bail at the request of the Defendant and therefore it is reason that if he be at losse by his request that he ought to satitfie him And he conceived the Law to be cleer that it was a good consideration and that the request is a great help in the Case Rodes Justice agreed with Periam for the same reasons and denyed the Case put by Anderson And he said That if one serve me for a year and hath nothing for his service and afterwards at the end of the year I promise him ten pounds for his good and faithfull service ended he may maintain an Assumpsit for it is a good consideration But if the servant hath wages given him and the Master ex abundantia as he said promiseth him ten pounds after his service ended the same promise shall not maintain an Assumpsit for there is not any new cause or consideration preceding the Assumpsit And Periam agreed to that difference and it was not denyed by the other Justices but they said that the principall Case was a good case to be advised upon and at length after good advice and deliberation had of the cause they gave Judgment for the Plaintiff that the Action would lie And note That they very much relyed upon Hunt and Bakers Case before cited See Hunt and Baker's Case in 10. Eliz. Dyer 272. Pasc 27. Eliz. in the Common Pleas. 41 CARTER and CROST's Case CArter brought an Action of Detinue of a chaine against Crosts and declared That Thomas Carter his brother was thereof possessed and died Intestate for which cause the Bishop of Cork granted him Letters of Administration and that the Chain came to the Defendants hands by Trover c. And declared also That he was as Administrator thereof possessed in London To which the Defendant Crosts pleaded the Generall Issue and the Jury gave a speciall Verdict and found that the Administration was committed to Carter in London by the Bishop of Cork in Ireland here and did not find that Carter was possessed of the chain in London And upon this special Verdict first it was moved That the Bishop of Cork in Ireland being in England might commit administration of things in Ireland And it was held cleerly by the Court That he might of things within his Diocesse in Ireland because it is an Authority Power or Matter that followes his Person and wheresoever his Person is there is his Authority As the Bishop of London may commit Administration being at York but it ought to be alwaies of things within his Diocesse and therefore they held That the Declaration was good in that point That the Bishop of Cork did commit Administration in London although there be no such Bishop of England The second point was If an Aministrator made by a Bishop of Ireland might bring an Action here as Administrator and it was holden That he could not because of the Letters of the Administration granted in Ireland there could be no triall here in England although that Rodes Justice said That Acts done in Spirituall Courts in Forrain places as at Rome or elsewhere the Law saith That a Jury may take notice of them because such Courts and the Spirituall Courts here make but one Court and he proved it by the Case of the Miscreancy in 5. R. 2. Tryall 54. where a Quare Impedit was brought by the King against the Clerk of a Church within the Bishopprick of Durham and counted that the Bishop who is dead presented his Clerk and that the Clerk died and the Chapter collated a Cardinall who for Miscreancy and Schisme was deprived the Temporalties being in the Kings hands Burgh He hath counted of an Avoidance for Miscreancy at the Court of Rome which thing is not tryable here Belknap Chief Justice I say for certain That this Court shall have Conusans of the Plea and that I will prove by Reason for all Spirituall Courts are but one Court and if a man in the Arches be deprived for a Crime and appeal to Rome and is also there deprived that Deprivavation is triable in the Kings Court in the Arches And if a man be adhering unto the Kings enemies in France his Lands are forfeitable and his adherence shall be tryed where his Land is as oftentimes it hath been for adherence to the Kings enemies in Scotland And so by my faith if one be Miscreant his Land is forfeitable and the Lord thereof shall have the Escheat and that is good reason For if a man
and where not For in the principal Case notwithstanding that the Jury find the Assumpsit yet the same doth not reach to the Request and without that the Assumpsit is void Dodderidge Justice cited 5 E. 4. That if the Declaration be vitious in a point material and issue is taken upon another point there the finding of it by the Jury doth not make the Declaration to be good And so in the principal Case Judgment was given for the Defendant In this Case it was agreed That if a man bring an Action of Trover and Conversion and not alleadge a place where the Conversion was Although the issue for the Trover be found for the Plaintiff yet he shall not have Judgment Hill 16 Iacobi in the Kings Bench. 388. GODFREY and DIXON'S Case COrnelius Godfrey brought an Action of Debt upon a Lease against Dixon and declared That Cornelius Godfrey his Father being an Alien had issue Daniel Godfrey born in Flanders the Father is made a Denizen and hath issue the Plaintiffe his second son born in England The Father dieth Daniel is Naturalized by Act of Parliament and made the Lease to Dixon for years rendring Rent and dyed without issue And the Plaintiffe his brother brought an Action of Debt for the Arrearages as heire and upon that it was demurred in Law And George Crook in his Argument said That Inheritance is by the Common-Law or by Act of Parliament And that three persons cannot have heirs in travnsersali linea but in recta linea viz. 1. A Bastard 2. A person Attainted 3. An Alien see for that 39 E. 39. Plow Dom. 445. 17. E. 4. 1. 22 H. 6. 38. 3 E. 1. sitz t' Cousinage 5. Dr. Student And he said That Denization by the Kings Charter doth not make the heir inheritable 36 H. 8. Br. to Denizen and C. 7. part 77. And he said That he who inheriteth ought to be 1. Next of blood 2. Of the whole blood and 3. He ought to derive his Pedigree and discent from the stock and root Bracton lib. 2. fol. 51. And he said That if a man doth covenant to stand seised to the use of his brother being an Alien that the same is not good and the use will not rise But that was denyed by the Court. And he said That an Alien should not have an Appeal of the death of his brother And he took a difference betwixt an Alien and a person Attainted and said that the one was of corrupt blood the other of no blood and cited 9 E. 4. 7. 36 Eliz. Hobby's Case Dodderidge upon the argument of this Case said That if a man claim as Cousin and Heir he must shew how he is Cousin and Heir but not when he claims as Brother or Son and Heir The Case was adjourned Hill 16 Iacobi in the Kings Bench 389 GRAY'S Case AN Action of Debt was brought upon a Bond with Condition to stand to an Arbitrement and also that he should not begin proceed in or prosecute any suit against the Obliger before such a Feast The Obliger did continue a Suit formerly brought George Crook said That the Bond was forfeited because it is the act of the Obliger to continue or discontinue a suit and profit accrues to him therefore it shall be adjudged his act But it is otherwise of an Essoin because that that may be cast by a stranger And he cited the books of 36 H. 6. 2. 5 H. 7. 22 14 E. 41. 18 H. 6. 9. And he held That it was a good Award to continue or discontinue a suit because it is in the power of the party to do it or not Hill 16 Jacobi in the Kings Bench. 390 SLYE'S Case IN a Scire facias to have Execution the Sheriffe retorned That by vertue of a Writ of Fieri facias he took the goods in Execution ad valentiam of 11l. which remained in his custody for want of buyers and that they were rescued out of his possession Mountagu Chief Justice and Dodderidge Justice The Plaintiffe shall have an Execution against the Sheriff relyed upon the book of 9 E. 4. 50. 16 E. 4. Faulconbridge Case 7 Eliz. Dyer 241. 5 E. 3. t' Execution C. 5. par Pettifers Case And Dodderidge said That by this Retorn he had concluded himself and was liable to the value of 11l. And he took this difference where the Sheriffe by vertue of the Writ Venditioni exponas sels the thing under the value there he shall be discharged but otherwise where he sels the goods ex officio Crook and Haughton Justices The Plaintiffe shall not have a Scire facias against the Sheriffe but where he hath the money in his purse And they said That the Plaintiffe must have a Distringas directed to the new Sheriffe or a Venditioni exponas Note the Court was divided in opinion But the Law seems to be with Crook and Haughton and the books before cited prove their difference and warrant it Hill 16 Iacobi in the Kings Bench. 391 Sir JOHN BRET and CUMBERLAND'S Case IN an Action of Covenant brought by Sir John Bret against Cumberland Executor of I. C. the Case was this Q. Eliz. by her Letters Patents did demise a Mill unto the Testator for 30 years reserving Rent and these words were in the Letters-Patents viz. That the Lessee his Executors and Assignes should repair the Mill during the Term. The Lessee assigned over all his interest unto Fish who attorned Tenant and paid the Rent to the Queen and afterwards the Queen granted the Reversion to Sir John Bret and Margaret his wife The Assignee is accepted Tenant the Mill came to decay for want of Reparations and Sir John Bret brought an Action of Covenant against the Executor of the first Lessee And it was adjudged for the Plaintiffe And Dodderidge Justice gave the reasons of the Judgment 1. Because that by the Statute of 32 H. 8. all the benefit which the Queen had was transferred to the Grantee of the Reversion 2. It might be parcel of the Consideration to have the Covenant against the Lessee For a Mill is a thing which without continual Reparations will be ruinous and perish and decay And he said That the Assignee had his election to bring his Action against the Lessee or against the Assignee because it was a Covenant which did run with the Land Mountagu Chief Justice said That the reason of the three Cases put in Walkers Case is in respect of the Interest And took a difference where there is privity of Contract and where not It was adjourned Hill 16 Jacobi in the Kings Bench. 392. WEBB and TUCK'S Case IN an Action of False Imprisonment it was agreed That a Fine may be assessed for Vert and Venison And it was said in this Case by the Justices That a Regarder is an Officer of whom the Law takes knowledge and so are Justices in Eyre 2. It was agreed That such things of which the Law takes notice
Iacobi in the Kings Bench. 430. OWFIELD against SHIERT A Writ of Error was brought to reverse a Judgment given in an Action of Debt The Action of Debt was upon a Concessit solvere c. pro diversis summis pecuniae and the opinion of the Court was That Debt doth not lie upon Concessit solvere pro diversis summis c. because it is incertainty But the same Term in another Case viz. Stacies Case That by Custom of London it was holden that Debt doth lie upon a Concessit solvere pro diversis summis And it was then said That in an Action upon the Case it was good to say That in consideration de diversis summis Concessit solvere and so it hath been adjudged Trin 21 Jacobi in the Kings Bench. HAWKSWITH and DAVIES Case Intratur 431. Pasch 19. Jur. Rot. 83. LEssee for years of divers parcels of Lands reservant Rent and for not payment a reentrie The Lessee assignes part of the Land to A. and other part to B. and keeps a part to himself afterwards the Lessee levies a Fine of all the Lands unto the use of the Conusee and his heirs afterwards the Lessee paies the Rent for the whole unto the Conusee and afterwards the Rent becomes behind and the Conusee enters for the Condition broken and made a Lease to the Plaintiffe who thereupon brought an Ejectione firme and all this matter was found by special Verdict and it was moved that by the assigning of the Lessee of part of the lands to one and part to another that the Condition was gone and destroyed but notwithstanding it was agreed by all the Justices that the Condition did remain and was not gone nor destroyed And they said that this Case was not like unto Winters Case in Dyer 308 309. where the Lessor did assigne over part of the Reversion to one and part unto another for that in that Case the Lessor by his own Act had destroyed the Condition but in this Case it is the Act of the Lessee and therefore no colour that the Condition be gone and destroyed And so it was resolved for the Plaintiffe and Judgment given accordingly Trin. 21 Jacobi in the Kings Bench. 432. KILLIGREW and HARPER'S Case HArper in consideration of 100l. doth assume and promise to Killigrew That the Lady Weston and her Son shall sell to Killigrew such Lands Proviso that Killigrew such a day certain pay to the said Lady and her Son 2000l At which time the Lady and her Son shall be ready to assure and convey to Killigrew the said lands And for want of payment of the said 2000l at the said day that Killigrew shall lose the said 100l. and that the Contract for the Land shall be void Killigrew brought an Action upon the Case sur Assumpsit against Harper and all this matter was found by special Verdict Athow Serjeant argued that the Action would lie because the Lady and her Son were to do the first act viz. to make the Assurance 22 H. 6. 57. Rent is reserved upon a Lease for years in which are divers Covenants and a Bond is given for the performance of all the Covenants within such Indenture of Lease the Rent is behind the Bond is not forfeited unlesse the Lessor doth make a demand of the Rent because the Lessor is to do the first act viz. to demand the Rent Yelverton contr ' That the Action will not lie The question is Of whose part is the breach The Assumpsit is grounded upon the Consideration and not upon the Promise The Jury find that Killigrew was not ready to pay the 2000l. and that the Lady and her Son were not ready to assure the land The Agreement was for which not time is expressed That the Lady and her Son should convey such lands Then the Agreement was That Killigrew should pay at such a day certain at which day the Lady should be ready c. and if Killigrew made default of the payment of the 2000l. then he was to lose the said 100l. which he gave to Harper to procure the Bargain and also that the Bargain should be void Ley Chief Justice If Killigrew had paid or tendred the 2000l. at the said day and the Lady and her Son had not been ready at that time to have assured the lands Killigrew should have had an Action upon the Case for the 100l. and recovered damages If the Lady had been to have done the first action then the Action would have been maintainable but in this Case Killigrew is to do the first act and therefore the Action will not lie Dodderidge If it had been indefinite then the Assurance and Conveyance is to be before the Payment but here the bargain is to pay the mony first Harper promiseth to Killigrew in consideration of 100l. that Killigrew shall buy such lands then comes the time of payment and assurance of the land at that time shall be made Proviso that if he do not pay the 2000l then Killigrew to lose the 100l. and the Contract to be void so there are two penalties so as of necessity the 2000l must first be paid for otherwise how can the Contract be void for not payment For if the Conveyance shall be first made then it was present before the mony paid and so the clause viz. Then the Contract to be void should be of no effect Haughton Justice agreed Chamberlain Justice You have bound your self with a penalty and the bargain ought to be performed as it was made And so being made that the mony should be first paid at which time the conveyance shall be made and for want of payment that Killigrew should lose the 100l. and also the Contract to be void The opinion of the whole Court was against the Plaintiffe that the Action would not lie and so Judgment was given Quod nihil capint per Billam Trin. 21 Jacobi in the Kings Bench. 433. Sir ARTHUR GORGE and Sir ROBERT LANE'S Case AN Action of Debt was brought upon a Bond for not performance of Covenants The Case was Lane did marry with the daughter of Gorge and in consideration of marriage and also of 3000l portion given in marriage by Gorge Lane did covenant That he within one year would make a Jointure of lands within England then of the value of 500l per annum over and above all Reprises to his said wife so as Sir Henry Yelverton and Sir John Walter Councellors at Law should devise and advise In Debt for the breach of these Covenants Lane pleaded That he did inform Gorge of lands which he was determined should be for her Jointure but neither Yelverton nor Walter did devise the Assurance Paul Crook did demur upon the Plea and first shewed That Lane did not give notice to Yelverton and Walter as he ought to have done by law For in this case it is not sufficient to give notice to Gorge but the notice ought to be to the Councellors otherwise how could
being made at Dunkirk but to be performed in England The second If Tookley being the Attorney be such a party prosecutor as is within the Statutes The ancient Law of the Admirals Jurisdiction appears in our Books 8 E. 2. Corone 399. Staunton Justice It shall not be accounted the Sea where a man may see the land over the water And the Coroners were to do their office in such case and the County was to take notice thereof 40 Ass 25. Stamford 11. This Commission was at the Common-Law before the Statutes of Pyracie 46 E. 3. tras 38. Statham It is pleaded that the Defendant took the goods as Pyracie c. I infer thereupon that it was a good Justification 7 R. 2. tras 54. Statâ—am Trespass was brought for a Ship and Merchandises taken upon the Sea and holden good which proves that the Common-Law had jurisdiction upon the Sea and not the Admiral 6 R. 2. Protection 46. Protection quia profecturus super altum mare Belknap The Sea is within the Kings jurisdiction and the Sea is as well in the Kings protection as is the Land It may be objected That the Contract was made at Dunkirk and so out of the body of the County and so our Law cannot take notice of it and if the Admiral shall not have jurisdiction in such case it should remain undetermined To that I answer If all the matter were to be done at Dunkirk then all were a Marine case and the Admiral should have jurisdiction but if any part were to be done in England then it is otherwise M. 30 31 Eliz. C. 6 part 47. in Dowdalos case In an Action upon the Case upon Assumpsit the Plaintiff did declare That the Defendant at London did assume that such a ship should sail from Melcomb Regis in Suffolk to Abvile in France The issue was tryed in London because the Contract was made in England Pasch 28 Eliz. Gynne and Constantines Case there because it was part upon the Sea and part upon the Land the tryal was at the common-Common-Law and not in the Admiral Court 48 E. 3. 2. One did retein three Esquires to serve in France there because the Reteiner was here the tryal was here If a Mariner contract with me for wages to sail in such a ship he shall demand his wages at the Common-Law and not in the Admiral Court vi 39 H. 6. 39. There a Protection super vetilationem Calisiae c. cannot be moraturus because that the Sea is ever ebbing and flowing and doth not stand still So that if any part of the Contract be to be done upon the Land then Common-Law shall have the jurisdiction Wreck of the Sea shall be tryed at the Common-Law because it is cast upon the Land Dyer 326. t' E. 1. Avowry 192. A Replevin was brought of a ship taken upon the coast of Scarborough and carried into Norfolk and it was alleadged to be within the Statute of Malebridge for taking a Distress in one County and carrying of it into another County Bereford The King wills that the Peace be kept as well upon the Sea as upon the Land And our Case differs from Lacy's case C. 2. part Foâ— in that case of Felony it is meer local but Contracts are not so local The second point Whether this be a prosecution within the Statutes because it was done by vertue of a Letter of Attorney from Mullibeck 32 E. 3. barr 264. Annuity 51. Qui per alium facit per seipsum facere videtur The Statute of Merton cap. 10. gave power to make Attorneys in any Court Com. 236. but the Attorney must look at his peril that that which he doth be a lawful act Here Mullibeck himself could not have justified this prosecution nor shall his Attorney â— H. 7. 24. 28 H. 8. 2. Quod per me non possum per alium non possum If an Enfant make a Letter of Attorney to make Livery and Seisin and the Attorney maketh Livery accordingly he is a Disseisor C. 10. part 76. If the Court have not jurisdiction of the Cause the Minister must look to it at his peril otherwise he is punishable Tras 253. One may do that himself which he cannot do by Attorney The Lord may beat his villein but a stranger cannot do it for the Lord the Lord may distrein for Rent when it is not behind and the Tenant shall not have trespass but if the Bailiff distrein when no Rent is arrear trespass lieth against him 2 H. 4. 4. 9 H. 7. 14. In Trespass all are Principals Then the Attorney here and Mullibeck are both Trespassors against the Statutes And the doing of the Attorney at the command of the Master shall not avail him vi Dyer 159. doth conduce to the reason that the Attorney shall be punished It seems this suing in the Court of Admiralty is a Contempt for it is malum prohibitum and so either Mullibeck or the Attorney are punishable And in this case the Plaintiff hath his Election to sue Mullibeck or the Attorney and therefore having sued the Attorney the Action brought against him will well lie Calthrop for the Defendant It was objected That the Court of Admiralty did begin but in the time of King Edw. 3. But Dyer 152. proves the contrary For there in an Assise brought of the Office of Admiralty the Plaintiff doth declare the same to be an Office time out of mind c. which proves it to be a more ancient Office And in the Statute of 2 H. 5. cap. 6. There the words are to enquire of all offences c. as the Admirals after the old custom which proves that it is an ancient Office It 's true Avowry 192. makes against me but the Notes of that Case in writing proves that the book is misprinted I confess if part of the thing be to be done here upon the Land that it is triable at the Common-Law The Defendant in this our Case is not liable to the penalty because at the time of the making of these Statutes it was not known that any Charter-partie was made beyond the Seas 2 E. 3. Oblig 15. Debt was brought upon an Obligation made at Barwick where becaus this Court had not jurisdiction It was adjudged That the Plaintiff nihil capiat per breve Testament 16. A Testament bore date at Cane in Normandy which was proved in England Pole Upon an Obligation which bears date in Normandy a man shall not have an Action here but it is good in case of a Will proved here 6 E. 3. 17 18. The Abbot of Crowband granted an Annuity and the Deed was made in Scotland If the Deed had been the ground of the Action then the Action would not have lien but because the Deed bore date before time of memory the Annuity did lie for the Action was not brought upon the Deed but upon the Prescription 1 E. 3. 1. 18. 8 E. 3. 51. It is ruled where the title is made by a