REPORTS OF Diverse Choice CASES in LAW TAKEN By those late and most judicious Prothonotaries of the Common Pleas RICHARD BROWNLOW JOHN GOLDESBOROUGH Esq rs WITH DIRECTIONS HOW TO proceed in many Intricate Actions both Reall and Personall shewing the Nature of those Actions and the Practice in them excellently usefull for the avoyding of many Errours heretofore committed in the like Proceedings fit for all Lawyers Attorneys and Practisers of the Law Also a most Perfect and exact Table shewing Appositely the Contents of the whole Book Solon 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 LONDON Printed by Tho Roycroft for Matthew Walbancke at Grays-Inne Gate and Henry Twyford in Vine Court in the Middle Temple 1651. THE PUBLISHER TO THE READER THese Reports coming unto my hands under the Commendations of men of so much sufficiency in the knowledge of the Lawes I could doe no lesse then fear that it would prove too obvious a neglect of Common good to keepe them in the darke therefore here I present them to the World to the end that all men may take that benefit by them now being in Print which some few only have hitherto injoyed by private Copies And indeed I thinke I shall put it beyond dispute when I name the two worthy and late famous Prothonotaries M r. Brownlow M r. Goldesborough whose Observations they were that they will both profit and delight the Reader since there are contained under these heads viz. Actions upon the Case Covenant Account Assise Audita querela Debt upon almost all occasions Dower Ejectment Formedon Partition Quare Impedit Replevin Trespas Wast Many excellent conclusions as well of Law as of the manner of pleadings Demurrers Exceptions Essoins Errors and the qualities of many VVrits with other various and profitable Learning in which may be found the number of the Roll for so many as have had the luck of a full debate and definitive sentence And for the rest though there is no Judgment in them so as to determine what the Law is yet at least they will afford a very considerable compensation for the Readers pains by opening unto him such matters as are apt for Argumentation and may acquaint his Genius with the manner of Forensall Disputations from which benefit to detain you any longer will deserve a Censure therefore I remit you to the matter it self which I am confident the Printers faults excused will easily effect its owne praise beyond my Ability SPECIALL OBSERVATIONS AND RESOLUTIONS OF THE JUDGES OF THE COMMON PLEAS Vpon severall Actions upon the Case there depending and adjudged PEdley versus Langley Hill 14. Ja. rotulo the Plaintiff brought his Action for these words You are a Bastard for your Father and Mother were never married The Defendant pleads that the Plaintiff was a Bastard and justifies the words laid and it was held by the Court that this Issue should be tried by the Countrey and not by the Bishop as in other Cases SMayles one of the Attourneys c. versus Smith for these words he meaning the Plaintiff took corruptly five Marks of Brian Turnor being against his own Client for putting off and delaying an Assize against him and after a Verdict exception was taken against the Declaration for that the Plaintiff did not expresly alledge that at the time of speaking the words He was an Attourney but layd it that he had been an Attourney The Court held the words would bear Action MAle versus Ket Hill 14. Jac. rotulo 1506. for these words William Male did steal my Corn out of my Barn Judgement for the Plaintiff The Court held that an Action would lie for these words You are a Thief and have stollen a Cock which was but Petty Larceny COwte versus Gilbert Hill 10. Jac. rotulo 3176. Thou art a Thief and hast stollen a Tree Judgement that the Plaintiff should take nothing by his Writ The like Thou art a Thief and hast stollen my Maiden-head no Action HArding versus Bulman Hill 15. Jac. The Plaintiff declares that in such a Term he had brought an Action of Case against B. for scandalous words to which he pleaded not guilty and at that Triall gave in Evidence to the Jury to take away the Plaintiffe Credit and Reputation that the Plaintiff was a common Lyar and recorded in the Star-chamber for a common Lyar by reason whereof the Jury gave the Plaintiff but very small Damage to the Plaintiffs Damage of c. The Defendant pleads not guilty And it was moved in Arrest of Judgement that the Action would not lie And of that opinion the Court seemed to be BRidges one of the Attourneys versus Playdell for words You meaning the Plaintiff have caused this Boy meaning A. W. then present to perjure himself Judgement for the Plaintiff STone versus Roberts Mich. 15. Jac. rotulo 635. for these words Thou art a Witch and an Inchanter for thou hast bewitched Stronges Children no Action lies but if thou say Thou art a Witch and hast bewitched Children and that they are wasted and destroyed they are actionable SCarlet versus Stile Trin. 14. Jac. rotulo 541. for these words Thou didst steal a Sack and Curricomb and I will make thee produce it and thou didst steal my Fathers Wood and didst give it to a Whore The Defendant justifies that such a day the Goods were stollen and there was a common fame and report that the Defendant had stollen them and upon that report the Plaintiff did vehemently suspect that the Defendant had stollen them and thereof did inform a Justice of the Peace and complaining of the Defendant to the Justice and informing him of the Premises did speak the words before mentioned If a Felony be committed it is good cause to arrest one for Felony but not to speak words to defame one If there be two Issues in severall Counties in Trover and one is tried and Judgement and Execution of the Costs and Damages and afterwards the other Issue is tried and Costs thereupon the last is erronious as to the Costs Broccas Case Note Trover was brought against Husband and Wife for Goods which came to the hands of Husband and Wife the Conversion was alleadged to be by the Husband alone for the Wife could not convert And the Court held that the Action would not lie against the Wife MOse versus Canham Mich. 6. Jac. rotulo 508. The Plaintiff declares that one Levet was indebted in such a summ and for the payment thereof had delivered to the Plaintiff divers Goods of the said Levets the Defendant in consideration that the Plaintiff would deliver to the Defendant the said Goods promises to pay the Plaintiff the money due from Levet and exception was taken to the Declaration for that the certainty of the Goods were not expressed and for that the consideration was but collateral Another Exception for that the Plaintiff might grant the Goods over but the Court held the contrary And Judgement for the
Acres to the Plaintiff and that the Defendant made and erected one Ditch and Hedge by reason whereof the Plaintiff lost the benefit of his way and after Triall and Verdict for the Plaintiff it was moved in Arrest of Judgement because it did not appear in the Declaration to what Village the common way led to And it was held a good Exception and Judgement arrested but if it had been unto a common way there or in such a Village it had been good KEnt versus Prat Hill 7. Jac. rotulo 131. Action upon the Case the Plaintiff declares that Prat was Rector of the Church of S. And that Kent was lawfully possessed of the Parsonage-house and that there were divers strifes between the Plaintiff and Defendant for the said Rectory and that the said Prat in consideration that the said Kent would surrender the Parsonage-house and the Gleab-land which were then sowed by Kent he promised c. And after Triall it was moved in Arrest of Judgement that the Surrender was not a valuable consideration because it did not appear to the Court that Kent had any Estate but at will which is determinable at the will of the Lessor and so he surrendred nothing but if these words had been in the count viz. of the Demise of the said Prat For a term of divers years it had been good though the certainty of the years had not been expressed SMailes versus Belt uxorem Hill 1. Jac. rotulo 1372. Action upon the Case for words spoken by the Woman Videlicet Thou art a Theif and a mainsworn Theif and a Verdict for the Plaintiff and moved in Arrest of Judgement that the Action would not lie but Judgement was arrested because the Issue was Quod ipsi non sunt cul and it ought to have been that the Woman was not guilty YArdley Attourney versus Ellyll Mich. 11. Jac. rotulo 1252. Action upon the Case brought for these words Your Attourney meaning the Plaintiff is a bribing Knave and hath taken twenty pounds of you to cozen me the Plaintiff laid a Communication such a day and place by the Defendant with one B. which B. had before that time retained the Plaintiff to be his Attourney concerning the Plaintiff Hubbart and Nichols held the words actionable videlicet for the first word Bribing Knave and that the last words did not extenuate or weaken the former if the words touch him in his Profession the Action will lie for it is against the Oath of an Attourney Birtridge is an old perjured Knave and that is to be proved by a stake parting the Land between M. and C. One Judge for the Plaintiff and two for the Defendant COrnhill versus Cowler Trespass upon the Case brought against Baron Feme for words spoken by the Woman the Baron Feme plead Quod ipsi in nullo sunt cul de praemissis and the Jury finde that the Woman was guilty and Exception taken after Triall to the Issue and Verdict and they were both aided by the Statute of Ieofayles But another Exception was that the Action was laid in Suff. And the Addition in the Writ was A. C. de C. in Com. Essex and in the Declaration the Plaintiff alleadges that the words were spoken at C. in the County aforesaid which was in the County of Essex and so a Mistryall CHimery versus God Action upon the Case upon a promise to discharge and save harmless the Plaintiff against all manner of persons and shews a Suit for Tithes in Norwich Court and the Defendant replies that the Plaintiff was not damnified and the Plaintiff rejoyns that he was damnified to wit at S. aforesaid which was in the County of Suffolk where the Action was brought and the Court held the Cause was mis-tried because the Suit was in Norwich and ought to be tried in Norwich and not in Suffolk and these words Apud S. praedictam were idle TIllet versus Bruen for words Trin. 12. Iac. The Plaintiff shews a Suit in Colchester Court and a Triall there before the Bayliff and that the Plaintiff gave in Evidence his knowledge and the Defendant willing to defame the Plaintiff as if he had given false Evidence said of the Plaintiff Thou art as much forsworn meaning in the Evidence aforesaid by the Plaintiff upon his Oath in Form aforesaid given as God is true and moved in Arrest of Judgement that the Inuendo would not maintain the Action and so adjudged LAmpleigh versus Braithwaie Mich. 13. Iac. rotulo 712. Action upon the Case in which the Plaintiff sets forth that whereas the Defendant had feloniously killed a Man and after the Felony committed did earnestly request and solicit the Plaintiff that he would labor and indeavour to obtain from the King for the Defendant a Pardon for the Felony upon which the Plaintiff at the instance and request of the Defendant by all lawfull ways and means possible did often and by many days labor and indeavor to obtain c. Videlicet by riding and journeying at his own cost and charges from L. unto the Village of R. where the King then was and from thence back again to L. to obtain c. The Defendant afterwards at H. in confideration of the Premisses did assume and promise to give the Plaintiff an hundred pounds of lawfull money when he should be required and a Verdict for the Plaintiff and moved in Arrest of Judgement for that it did not appear that the Plaintiff had spoken to the King for a Pardon nor done any thing or obtained a Pardon and Judgement was given for the Plaintiff Wynch said the Promise was subsequent to the Request and good for although the Defendant had no good by it yet because the Plaintiff was at costs and labor and it was at the Defendants request sufficient to maintain the Action If I request one to do a thing for me and make no promise and after you let me know that you did such a thing for me and then I promise to discharge or pay you this is a good consideration although the Promise go not with the Request otherwise it is where a man doth me a curtesie without any request And Hobart took this difference between a consideration executed and executory for where Non assumpsit is pleaded to a consideration executed the Plaintiff needs onely to prove the Promise for where the consideration is executory the Defendant may take Issue as well for not performing the consideration executory as upon the Promise GLover versus Taylor Hill 13. Iac. rotulo 852. Action upon the Case for ill using a Horse so that the Horse died and the Defendant promised to re-deliver the Horse The Defendant pleads Non cul And after a Verdict it was moved in Arrest of Judgement because he did not plead Non assumpsit And it was held a good Issue MArshall versus Steward Mich. 13. Iac. rotulo 1134. Action upon the Case reciting the Statute of 1.
Iac. against Invocation c. for these words The Devil appeareth to thee every night in the likeness of a black Man riding on a black Horse and thou conferrest with him and whatsoever thou dost ask he doth give it thee and that is the reason thou hast so much money and this I will justifie Judgement for the Plaintiff In Trover Judgement by Nihil dic and Exception taken to the Declaration to stay the filing the Writ of Inquiry because no day of the conversion was in the Declaration and by two Judges held naught Mich. 14. Iac. PArker versus Parker Hill 12. Iac. rotulo 426. In Trover after a Verdict it was moved in Arrest of Judgement that the imparlance Roll was entred with Spaces for the possession and conversion but both those Spaces in the Issue were filled up and held good The Imparlance was entred Mich. 12. Iac. rotulo 547. WHitepain versus Cook Pasch 12. Iac. For words Thou art a Rogue and I will prove thee a Rogue no Judgement STone versus Bates A man may well incourage one that was robbed to cause the Felon to be indicted and accompany him to the Assizes and this shall be lawfull for to do without incurring the danger of an Action upon the case upon conspiracy but if he knew that he was not robbed then he is in danger of the Action upon the case COpe and his Wife administratrix Plaintiffs versus Lewyn Trin. 12. Iac. rotulo 1714. An Action upon the case brought upon a promise made to the Intestate and in the Court omits to shew the Administration and after Triall that Fault moved in Arrest of Judgement and the whole Court was of opinion that he should not have his Judgement for it did not appear that he was Administrator for at the Common Law no Administration lay but the Ordinary ought to have the Goods HArvey Attourney versus Bucking Mich. 12. Iac. rotulo 842. Action of the case for slanderous words He meaning the Plaintiff shewed me first a Bill of fourty pounds without a Seal meaning the said Bill by the said E. as aforesaid sealed and delivered and afterwards he shewed me the same Bill with a Seal and he meaning the Plaintiff hath forged the Seal of the same Writing meaning the Seal of the said Bill by the said E. as aforesaid sealed and delivered The Defendant traverses the words and a Verdict for the Plaintiff and it was alleadged in Arrest of Judgement that the Declaration was naught for that it did not directly appear that there was any communication between the Plaintiff and Defendant concerning the Bill but onely in the inuendo which will not maintain the Action and Judgement arrested MOrton versus Leedall Hill 10. Iac. rotulo 1783. Action upon the case for these words He is a lying and dissembling Fellow and a mainsworn Fellow And a Verdict for the Plaintiff And afterwards it was moved in Arrest of Judgement that the Action would not lie but at length Judgement was given for the Plaintiff And Serjeant Hutton cited the like case adjudged in t Barnes He is a mainsworn Villain 〈◊〉 Skipwash SKipwash versus Skipwash Hill 14. Iac. rotulo 3472. Action upon the case that whereas the Defendant in consideration that the Plaintiff would marry one A. B. did assume to pay the Plaintiff twenty pounds when he should after the Marriage be thereunto requested The Plaintiff alleadges no special Demand and that Fault was moved in Arrest of Judgement Hobart and Wynch were for the Plaintiff Warburton for the Defendant JOtham versus Ball Hill 12. Jac. rotulo 1920. Action upon the case for slanderous words Videlicet Your Master Euseby meaning the Plaintiff is a Rogue a Rascall and Forger of Bonds the Plaintiff laid a Colloquium between the Defendant and one R. G. And after Verdict moved in Arrest of Judgement for that it did not expresly appear that the said R. G. at the time of speaking the words was Servant to the Plaintiff and Judgement was stayed by the Court. COddington versus Wilkin for words Trin. 12. Iac. He is a Theif and why will you take a Theifs part spoken 1. Martii 10. Iac. The Defendant justifies the words because the Plaintiff stole Sheep The Plaintiff by way of replication sets forth a general Pardon granted such a time and further saith that if any Felony were committed it was before the general Pardon made and shews himself to be a Subject and no person excepted in the Pardon The Defendant demurs The Court were of opinion that by the Pardon both the Punishment and Fault were taken away and that the wrong was done to the King by the Common Law and the King being the supreme Head if he pardons the party is cleared of the wrong As if a Villain be infranchised he from thenceforth is no Villain Note if a man upon good consideration promise to become bound to another by his Obligation to do an Act and if he do not become bound Action upon the case will lie against him and the Plaintiff is not bound to tender him an Obligation but the Defendant hath took it upon himself to do it RIchards versus Carvamell Action of the case brought and counts for non-payment of money at the Plaintiffs next coming into the County of Somerset and avers that such a day he came into the County of Somerset Videlicet apud T. in Com. Somerset and that the Defendant though often requested hath not paid And Exception taken because the Plaintiff did not alleadge in his count that he gave notice to the Defendant when he came into the County of Somerset but not allowed and Judgement given for the Plaintiff And note when a man assumes to pay money or do any thing upon condition the Defendant may take Issue upon the condition and needs not plead Non assumpsit but if he pleads Non assumpsit then he confesses the performance of the condition which mark AVstin versus Jarvis Trin. 13. Jac. rotulo 2180. The Plaintiff declares that such a Day and Year he bought of the Defendant a Horse for a peice of Gold of the value of 22. s. by him to the Defendant then in hand paid and for a 11. l. to be paid to the Defendant at the Day of Death or Marriage of the Plaintiff which should first happen for payment of which 11. l. the Plaintiff should bring to the Defendant one sufficient man to be bound together with the Plaintiff to the Defendant the Defendant in consideration thereof assumes to deliver the said Horse to the Plaintiff when he should be thereunto requested and the Plaintiff avers that such a Day he brought the Defendant one sufficient man Videlicet I. A. de B. Yeoman to be bound together with the Plaintiff to the said Defendant for the payment of the said 11. l. and shews that he requested the Defendant to deliver the said Horse yet the Defendant hath not delivered
grounded upon a promise made in this manner Marry my Neice and when I come from London I will give you 100. l. and the Action was brought in this manner Videlicet in consideration that he would marry A. promised to pay the Plaintiff 100. l. after he returned from London when he was thereunto requested and for these words when he was thereunto requested the Action was maintainable HInch versus Heald Trin. 17. Jac. rotulo Action upon the case for these words Videlicet He is a Witch and hath bewitched me and the Court held the Action would not lie for he might bewitch him by fair words or fair looks GReen versus Harrington Trin. 17. Jac. routlo 953. The Plaintiff declares that the Defendant such a Day was indebted to the Plaintiff in 10. l. for Rent due to the Plaintiff for one year ended at Michaelmas then last past for divers Lands in H. demised to the Defendant by the Plaintiff the Defendant in consideration thereof promised to pay the Plaintiff the said 10. l. when he should be thereunto requested The Defendant pleads Non assumpsit and after Verdict given for the Plaintiff it was moved in Arrest of Judgement that there was no consideration to maintain the Action because an Action of Debt lay upon the first Contract being in the realty for upon an implied promise no Action will lie where it is in the realty except there be a special promise made upon a collateral cause Videlicet If the Plaintiff had threatned suit for the said 10. l. and the Defendant in consideration that he would forbear to sue promises to pay c. and the like for if a man be bound in a Bond to pay money and the Day past now an Action of the case will not lie for that money except there be a collateral promise and so in the like cases and Judgement was given against the Plaintiff Michaelmas 17. Jac. It was adjudged in the Kings Bench in an Action upon the case Videlicet whereas the Defendant was indebted to the Plaintiff in 10. l. without expressing the cause for which the Debt grew due the Defendant in consideration that the Plaintiff at the special instance and request of the Defendant then and there had given Day to the Defendant untill a time to come to pay the money the Defendant promised to pay the money that the Action was maintainable without expressing the cause for which the Debt was Hill 17. Jac. rotulo 2722. Action of the case brought for these words Thou art a perjured Knave and I will make thee wear Papers for it the Defendant justifies the words and shews that the Plaintff was a Church-warden and took his Oath to exercise that Office and whereas one Article made was that he should present whether the Church-yard was repaired or no and he knowing it did not present it Action of the case brought for these words Thou art a scurvy perjured Knave the Action will lie WIlson versus Sheriffs of London Hill 17. Jac. rotulo 3069. The Plaintiffs declare upon an escape made upon a Capias ad respondendum after the Defendant was arrested the Defendant pleads a Custome in London that the Maior and Sheriffs of London have used to inlarge Prisoners that were arrested in coming and returning from their Courts having Causes there depending and set forth a Plaint in London against the Defendant and that he was arrested and appeared and pleaded to Issue and as he was coming to the Court to defend that Action he was arrested as is supposed in the Action upon the case brought against the Sheriffs and shew that he was brought to the Court and inlarged by the Court and the Court held that if a man were arrested in the face of the Court the Court might discharge him otherwise not PAin versus Newlin Mich. 16. Jac. rotulo 3042. Action upon the case brought upon a promise and Judgement by Nihil dicit and at the return of the Writ to inquire the Defendant moved in Arrest of Judgement and shewed that the Day of the promise was supposed in the inquiry to be Anno Domini 1614. And in the Declaration it was made 1617. and for that variance Judgement was stayed BElcher versus Hudson Hill 6. Iac. rotulo 132. The Plaintiff declares that in consideration that the Plaintiff at the request of the Defendant would marry one T. M. his familiar Freind the Defendant promised to pay the Plaintiff yearly after the Decease of the said T. M. 40. s. for her maintenance and the Plaintiff averrs the Marriage and that she survived The Defendant pleads that the said T. M. in his life time after the Marriage c. did release to the Defendant all Actions as well real as personal and all Demands and Challenges whatsoever from the beginning of the World unto the Date thereof to which Plea the Plaintiff demurrs and adjudged a naughty Plea BOx an Attourney against Barnaby Action upon the case for these words George Box is a common maintainer of suits and a Champertor and a Plague of God consume him and I hope to see his Body rot upon the Earth like the Carkase of a Dog and I will have him thrown over the Bar next Term and I will give a Beech to make a Gallows to hang him and Judgement given for the Plaintiff for this word Champertor and no other Trin. 14. Iac. Action upon the case for these words She is an arrant Whore and had two Bastards in Ireland and Judgement by the whole Court that the words would not bear an Action YOrk versus Cecill Mich. 14. Iac. Action upon the case brought by A. Tanner for these words Thou art a bankrupt Knave and the Court held that the Action would not lie but Quaere Skaif versus Nelson Mich. 12. Iac. rotulo 1106. Action upon the case brought for words against Husband and Wife spoken by the Wife and Judgement was entered for the Plaintiff and in entering of the Judgement it was made Et praedicta E. being the Woman in misericordia which was naught for it should have been both the Husband and Wife in misericordia and after the Record was certified by Writ of Error Serjeant Richardson moved that it might be amended because the Judgement Papers were right and so it was ordered to be amended according SMails an Attourney versus Moor Hill Iac. rotulo 753. Action upon the case for the words He is a forging Knave and the Court held that the words were actionable for he alleadged in his Declaration that he was an Attourney of the Common Pleas and so being touched in his Profession the words would bear an Action and if a man said of a Bishop that he was a Papist the Action would lie because Religion is his Profession and so he is defamed STeward versus Bishop Trin. 14. Iac. rotulo 769. Action upon the case for these words James Steward meaning the Plaintiff is in
agreement was not by him performed CRockhay versus Woodward Hill 15. Jac. rotulo 2001. An Action of Covenant brought upon this Writing Videlicet Memorandum that I John Woodward do promise and assume unto B. C. to pay to him such Moneys or other Goods as Josias my son shall imbessell mispend or wrongfully detain of his during the time of his being Apprentice with him within three Moneths next after request to me in that behalf made and due proof made of such imbesselling or wrongfull detaining in witness c. and the Plaintiff shews that the Defendants son did imbessell Goods of his Masters and shewed what Goods and left out in his Declaration these words Videlicet and due proof likewise made of such imbesselling or wrongfull detaining The Defendant demands Oyer of the Writing and pleads that he did not imbessell and it was tried for the Plaintiff and after Triall Exception taken because the Plaintiff did not alleadge any proof made and for that reason Judgement was arrested BRagg Assignee of Bragg versus Wiseman Executor of Fitch Mich. 12. Jac. rotulo 538. Action of Covenant brought and the case was this that Fitch and his Lady were seised of Land in right of his Wife for terme of her life and joyn together in a Lease by Deed indented in which were these words demise and grant and afterwards Fitch dieth the Lady enters and avoids the Lease and maketh a new Lease to a stranger whereupon an Electione firme is brought against the first Lessee and Judgement thereupon and the first Lessee put out of Possession whereupon the first Lessee brings his Action of Covenant against the Executors of Fitch upon the words demise and grant The Defendant demurrs The words were have demised granted and to farm letten for years if the Wife should so long live and Judgement for the Difendant A Covenant in Law shall not be extended to make one do more then he can which was to warrant it as long as he lived and no longer The Law doth not binde a man to an inconvenience If Tenant for Life make a Lease for twenty years and covenant that the Defendant shall injoy it during the terme that shall be during his Life for the terme endeth by his Death but otherwise it is if the Covenant be during the terme of twenty years by the word Demise an Action of Covenant lieth although he never enter and this word Demise implieth as much as Dedi concessi An Action of Covenant brought for that the Defendant covenants to bring again a Ship Perils and Damages of Sea onely excepted and he to excuse himself saith that the Hollander in a warlike manner by force and armes took the Ship and much doubt was where the Issue should be tried and the opinion of the Court was that the Action should be tried where it was laid COwling versus Drury Action of Covenant brought for that the Defendant did not pay a Rent with which the Land was charged the Defendant replies he was to injoy the Land sufficiently saved harmless and answers not the Breach and adjudged a naughty Bar by the whole Court SElby versus Chute Trin. 11. Jac. rotulo 3804. Action of Covenant brought and the Breach was alleadged that the Plaintiff should quietly injoy the Land demised to him and he shews that Chute exhibited a Bill in Chancery against him pretending the Lease was made in trust and it was decreed to be otherwise and whether the exhibiting this Bill was a Breach of Covenant there being no Disturbance at Common Law was the Question and the Court were of opinion that it was no Breach of Covenant for it was no Disturbance at Common Law nor Entry and the Law could not take notice of it and Judgement for the Defendant HOlder versus Tailor Pasch 11. Jac. rotulo 1358. An Action of Covenant brought upon this Covenant that the Lessee should repair the House provided alwayes and it was agreed that the Lessee should have such necessary Timber to be allowed and delivered by the Lessor and the Breach was that the House wanted Reparations and that so many Loads of Timber were necessary and that the Lessor allowed them according to the form and effect of the Indenture and a general Request laid and Exception was taken to the Declaration for that the Plaintiff did not alleadge a special request to the Defendant and that it was laid in the Declaration that a stranger brought the Timber which was held to be naught by the whole Court for it amounted to an Entry upon the Lessees Possession Exception taken to a Breach laid in Covenant for Repairs because it was generally alleadged and not shewed in what but being after a Verdict it was helped by the opinion of the whole Court TIsdale versus Essex Trin. 12. Jac. rotulo 2131. Action of Covenant brought upon these words covenant promise and agree that the Lessee should quietly occupy and injoy the Lands demised for and during the terme of seven years and the Plaintiff shews that an Estranger entred upon the Land and shews not that he entred by Title and the Court was of opinion that it was naught because it did not appear that he had a good Title to enter Dedit concessit imply a Warranty for Life and Judgement was given for the Defendant because the Breach was naught HIcks versus Action of Covenant brought and the Land alleadged to be in Weston alias Weston Vnderwood and the Venn was de visu de VVeston Vnderwood and it was alleadged by the Defendant that the Venn was mis-awarded because it was not of VVeston onely but the Court was of a contrary opinion that it was well awarded and Judgement for the Plaintiff CAstilion al. versus Smith Exec. Smith Trin. 17. Jac. rotulo 1849. Action of Covenant brought against the Defendant and the breach of Covenant alleadged to be in the time of the Executor and the Judgement was entred of the Goods of the Testators the Breach was for plowing of Land contrary to Covenant RIdent versus Took Hill 13. Jac. rotulo 3516. Action of Covenant brought to discharge the Plaintiff of a single Bill in which he was bound for the Debt of the Defendant and he alleadges for Breach non-payment and a Suit and recovery at Law for the Money which remained in force The Defendant pleaded that he paid the Money at the Day and thereof gave the Plaintiff notice before the purchasing his Writ the Plaintiff demurs and the Court held the Plea naught and Judgement for the Plaintiff Actions upon Account WIlloughby against Small An Action of Account brought against the Defendant as Receiver of the Plaintiffs Money The Defendant pleads that he never was Receiver where he hath a Release from the Plaintiff whereby he shall lose the benefit of his Release for that he cannot give that in Evidence upon such Issue The Process herein is Summons Pone Distress and upon a Nichil returned
upon the Summons pone or Distress the Outlary lies the Process is returnable from fifteen Dayes to 15 Dayes an Essoin lies In this Action there are two Judgements the first Judgement is that the Defendant shall account because he hath not accounted before in this first Judgement the Plaintiff shall not recover Costs or Damages but a Capias ad computand shall issue and if a Non est inventus shall be returned thereupon then an Exigent and when the Defendant by the rigor of the Law is imprisoned yet the Court doth in favour of the Defendant take Bail for he shall account before Auditors which the Court shall appoint which shall be the Officers of the Court to audit the Account and he shall appear from day to day before the Auditors at every day and place assigned by the Auditors untill the Account shall be determined and before the Auditors the Plaintiff or Defendant may joyn Issue or demurr upon the Plea pleaded before the Auditors and if any of the parties shall make Default and shall not appear then if after Appearance the Defendant shall not plead or if he shall joyn Issue or joyn in a Demurrer the Auditors shall certifie that to the Court and the Court shall proceed to the matter certified by triall of the Issue if it be joyned or by arguing the Demurrer as the cause shall require and if the Plaintiff shall make Default or shall not prosecute or if the Defendant shall not answer they may commit him to the Fleet and if Verdict pass for the Plaintiff Costs and Damages shall be recovered by reason of the inter-pleadings and the Plaintiff shall recover his Goods or Moneys demanded with his Costs and Damages and a Fisa or Elegit or casa shall be awarded and if a Non est inventus be returned then an Outlary after Judgement An account against a Bailiff of Lands shall be brought in the County where the Lands lie In every case in account where an Attachment may be returned an Essoyn lies Where the Defendant is charged to account for Moneys received from the hands of the Plaintiff the Defendant may wage his Law and likewise for Goods delivered to be sold but it is otherwise where the Receit is by the hands of a Testator or of any other then the Plaintiff That after a year and a day after Judgement given every Action shall be revived by Scire facias which is given by the Statute for all Actions at Law if the Plaintiff shall not obtain his Execution within a year and a day he shall be driven to bring a new Action Or if a Defendant be charged as Receiver by Indenture he shall not be admitted to plead that he was not a Receiver If the Plaintiff die before the second Judgement the Writ shall abate and no Scire facias lies for the Executor if the Defendant die before the second Judgement If two be adjudged to account and a Ca. exfa. issue and one appear and the other be outlawed he that appears shall account alone for that the Plaintiffs Process is determined against the other and so if one die the other shall account alone and if one be adjudged to account and will not he shall be committed to the Fleet. That if I deliver Goods to one to the value of 100. l. to traffique with for my use and he sels them for 10. l. I have no remedy but if my Bailiff buy a thing for 10. l. which is not worth it he shall not be allowed it Account lies not before a Sheriff for that he can assigne no Auditors If two be joyntly possest of Goods one of the two deliver the Goods for Merchandise he onely shall bring the Action An Account lies not against an Executor or Infant An Account lies not for a Park of Deer Matter that is in discharge of an Account shall not be pleaded in Barr of the Action for the Judges are Judges of the Action and not of the Account If Money be delivered to render an Account an Account lies but if it was delivered to keep untill the Plaintiff shall require Account doth not lie but Detinue If the Plaintiff account upon Witness of the Receit the Defendant shall not wage his Law If an Account shall be brought for Goods in the Declaration the Plaintiff declares that they were in his house whereas indeed they were not it is good HArrington versus Dean Hill 10. Jac. rotulo 3230. Action of Account render brought against the Defendant for the Receit of Money by the hands of one Rotheram for 200. l. The Defendant pleads that he was not a Receiver for to render an Account the Jury finde it specially that Rotheram was indebted to the Plaintiff in 200. l. and the Plaintiff required the Defendant to receive the said 200. l. and the Defendant required Rotheram to pay the 200. l. and Rotheram upon Request to him made desires the Defendant to borrow of any person 200. l. and to pay the Plaintiff and finde that the Defendant did borrow 200. l. of one Stanhop to pay the Plaintiff and Rotheram became bound to Stanhop for the payment of the said 200. l. and that the Defendant appointed his Wife to pay the Money to the Plaintiff and if upon the whole matter c. and Judgement was given that the Defendant was a Receiver THe Earle of Cumberland against Hilton The Clerk that entred the Cause had omitted the Charge which was for 400. l. and it was omitted in the Roll and Nisi prius and after a Verdict Excepon taken and amended by the Court. Assise IN an Assise Trin. 29. Jacobi rotulo 27. brought against Thacker and Elmer the Defendants come and say that there was no Tenants of the Tenements put to the view of the Recognisors of the Assise aforesaid nor at the time of purchasing the Writ to wit such a Day nor any time after and this they were ready to verifie and pray Judgement and if so then they say that they have done no injury or Disseisin of the Tenements with the appurtenances to the said W. T. and put themselves upon the Assise and the said W. T. doth so likewise therefore the Assise was taken between them and thereupon the Recognisors of the Assise say that the said E. E. at the purchasing of the original Writ of the Assise Videlicet such a Day were Tenants of the Tenement aforefaid with the appurtenances as of his Free-hold and that the said W. T. was seised of the Tenements aforesaid with the appurtenances in his Demesne as of Fee untill the said E. did unjustly and without judgement disseise the said VV. but not by force and armes and assess Damages to 12. d. and for Costs 6. d. and Judgement given that the said VV. should recover his Seisin of the Tenements aforesaid against the said E. by the view of the Recognisors of the Assise and his
lie by the Heir for pulling down the Coat-Armor c. of his Ancestors set up in the Church A Pew cannot belong to a House Fraud shall never be intended except it be apparent and found and that conveyance which at the time of the making was good shall never by matter ex post facto be adjudged to be fraudulently made for before primo Eliz. at the Common Law A conveyance made for natural affection without valuable consideration is not to be avoided none shall avoid it but such as come in upon valuable considerations Lands devised to one in Tail upon condition that he shall not alien and for Default of such the Remainder to R. in Tail this is a Condition and no Limitation by the whole Court and the Heir at the Common Law may enter for the Alienation Matters of instance which are between party and party as for Tithes and Matrimony are not to be dealt withall by the high Commissioners if they proceed inverso ordine that cannot be holpen in the Common Pleas but by superior Magistrate if they be Judges of the cause If one in Norfolk come within another Dioces and commit Adultery in another Dioces during the time of his residence he may be cited in the Dioces where he committed the Offence although he dwell out of the Dioces by Cook Warburton and Winch. If the King grant Lands to A. and his Heirs Males and doth not say of his Body he is but Tenant at will Tamen quaere A Deputy of an Office for Bribery cannot make his Master be punished corporally but pecuniarily equity shall not barr me of the benefit of Law Note the Probate of Wils and Administrations did not belong to the Ordinary originally but to the Common Law If two Aliens be at Issue the Inquest shall be all English but if between an Alien and Denizen that Inquest shall be de medietate Linguae 21 H. 6. 4. A Judgement given against a dead person is not void but Error 28. Ass 17. A Juror was committed to the Fleet For making his Companions stay a whole Day and a Night having no reason for it and without the Assent of any of the rest of his Fellows and after was bailed but not untill the Court was advised 8 E. 3. 75. In a Writ of Estate Probanda every Juror ought to be of the Age of 42. years If I grant Land to one and his Heirs in the Premises of the Deed Habendum to him and the Heirs of his Body he shall have the Land in Tail and the Fee-simple after the State in Tail when the Estate is certain in the Premises the Habendum shall not controll it If one make two Executors one of seventeen years of Age and the other under Administration during the minority is void because he of seventeen years old may execute the Will of Administration during the minority in such case be granted and the Administrator brings his Action the Executor may well release the Debt Pigot and Gascoins case If a Record go once to Triall and warning given if the first Attorney be alive the Plaintiff is not tied to give warning again but if the Attorney be dead he is If no place of Payment be in a Will which appointeth Money to be paid there must be a Request to pay the Money for he is not bound to seek all England over for him otherwise it is if it were by Bond. In every case where the Plaintiff might have Judgement against the Defendant there if the Plaintiff be non-suit the Defendant shall have his Costs if the Plaintiff be non-suit TRin. 11. Jac. In cases of remitting causes from the inferior Judge the Arch-deacon cannot remit the cause to the Arch-bishop but he must remit it to his Bishop and he to the Arch-bishop It was held by the Court that one might distrain for a Legacy In a special Verdict the Plaintiff must begin to argue first OLive versus Hanmer A Writ of Error was brought upon a Judgement by Nil dicit for want of a Warrant of Attorney and the Record certified and a Certior are to the Clerk of the Warrants and Error assigned for want of a Warrant And the Court was moved that a Warrant might be filed and it was granted and a Warrant filed accordingly Pasch 12. Jac. An Action was brought against Baron feme and an Attorney appeared for the Husband alone and the Court held it was the Appearance of Baron feme in Law PAsch 12. Jacobi Sheriff versus Whitsander One Judgement was confessed in Trin. 42. Eliz. rotulo 504. And afterwards in Trinity Terme 43. Eliz. the Defendant brought a Writ of Error bearing Date the 12. of May Anno 43. and upon that Writ the Record was certified 25. May and afterwards Error was assigned in the upper Bench for want of a Warrant of Attorney by the Defendant And Mich. 43. 44. Eliz. the Warrant of Attorney was received and entred upon Record by Order of Court of Common Pleas. And the like was Pasch 2. Jac. rotulo 1956. Int. Bathgrone and Smith and the like Mich. 1. Jac. rotulo 1306. Inter Smith Kent CRane versus Colpit Question was whether the Attornement of an Infant be good or not and by the whole Court it was held good by three Reasons First he gives no Interest Secondly it is to perfect a thing Thirdly he is a Free-holder IT was held in the case of Gage an Attorney who as an Administrator brought an Action of Priviledge that his Priviledge ought not to be allowed And after a Bill was filed against Drury an Attorney as Executor and held that the Bill would not lie but in both cases the Suit should be by Original BEarbrook versus Read The name of Confirmation must stand for Sir Francis Gawdy was christened Thomas and confirmed Francis by that name he must be called SIr Henry Compton was sued for Cloathes of his Wife bought without his command or privity and the whole Court were of opinion that if the Wife should buy Merchandises and thereof make Cloathes and wear those Cloathes although the Husband know nothing of them yet he shall pay for them PAsch 10. Jac. The Court was moved to know whether the Wife of a Bankrupt can be examined by the Commissioners upon the Statute of Bankrupt and they were of opinion she could not be examined For the Wife is not bound in case of high Treason to discover her Husbands Treason although the Son be bound to reveal it therefore by the Common Law she shall not be examined An Infant shall not be examined If an Administration be granted to one during the minority of two Infants and one of them dieth the Administration continueth still Actions of Debt LOvelace versus Cocket Mich. 6. Jac. rotulo 1001. Action of Debt brought upon an Obligation for the Paiment of Money at a
12. Jacobi rotulo 1609. or Hill in the same year rotulo 3027. The Plaintiff brought his Action upon a Bond the Condition whereof was performance of an Award for and concerning all matters Causes Suits and Demands whatsoever had moved or depending c. so as the said Award be made c. The Defendant pleads no such Award made the Plaintiff by Reply sets forth the Award it was made De praemissis to wit that the said I. should clearly depart with and avoid out of her House in which she then lived and that the said I. should carry away all the Hay c. The Defendant re-joynes and sayes no such Award and a Verdict for the Plaintiff the Defendant moved in Arrest of Judgement for that the Award was made but of one part and so void but Judgement was given for the Plaintiff for though the Award be made but of one part yet if the Defendant may plead it in Barr of the other Action brought against him for the same cause in all such cases the Award is good But my Lord Hubbart and Nichols took this Difference upon these words so that for then the Arbitrators must make their Award of all such things which are in Controversie and in such manner as the Condition prescribes but if the Parties put themselves by Parroll if the Arbitrement be made of one part it is good And Hubbart said that in all Arbitrements whether by Bond or Parroll they ought to be reciprocal and to be made in such manner that it may make an end of all Controversies between the Parties For if a man be bound in a single Bill and put it to Arbitrement and the Arbitrators order that the Obligor pay to the Obligee a summ and do not award that the Obligee shall seal a Release or that the Money paid shall be in Discharge of the said Bill the Award is void But in Barpools case the Submission was by Parroll for Money due before the Submission and the Award was that he should pay such a summ for the same Debt and good for the Award shall inure to a Dischage See Paschals case 8. Rep. STutfield Plaintiff Grony Defendant in Trinity Terme 13 Jacobi rotulo 859. The Defendant pleads to a Bond taken by the Sheriff for his Appearance in the Kings Bench Die Sabbati proximum post Oct. Martini that he appeared at the Day and the Court of Common Pleas gave him a Day to bring in the Record of his Appearance by Mittimus issuing out of the Chancery the Record was certified Videlicet that he appeared Lunae post xv am Martini which was after the Day yet it was adjudged good for if the Appearance was the same Terme it is good though it be not the same Day SErle against Harris Trinity Terme 9. Jacobi rotulo 1321. Judgement is there entred by Non sum inform against Harris Harris brings a Writ of Error upon that Judgement and assignes for Error that the Record was Fr. Harris de Brownton and the Original filed to warrant that Judgement was Fr. Harris de Browton and there reversed for that Variance HAmond versus Jethrell Mich. 8. Iacobi rotulo 2354. Hamond brought his Action of Debt upon a Bill obligatory for the Payment of Money and no Day limited in the Bill for the Payment thereof but after the words In witness whereof c. these words were written Nevertheless it is agreed that the said Jethrell shall not be hereby compelled or required to pay the said 30. l. untill the said Jethrell have recovered against B. Hudson the summ of 30. l. or more upon a Bond of 40. l. wherein the said Hamond c. The Defendant demands Oyer of the Bill and hath it Memorandum that J. W. J. c. and demurrs in Law and shews that the Plaintiff had not alleadged any Day of Payment nor when it was requested and the Declaration adjudged good notwithstanding and my Lord Cook held that whatsoever comes after these words In witness c. is no part of the Bill but words after In witness c. may be a Condition and must be pleaded and not demurred upon and 21 Henry the sixth direct in this point and so the third Report An Action of Covenant brought upon words of Covenant in Indenture after In witness c. and above the Seal and held good and maintainable SAaint-John versus Cracknell Mich. 12. Jacobi rotulo 1153. An Action of Debt was brought upon the Statute of the 24. of Henry the sixth for 40. l. for Election of Burgesses in Parliament and it was tried and a Verdict for the Plaintiff And Serjeant Moor moved the matter insuing in Arrest of Judgement First the Statute directs the Sheriff to issue out his Warrant to the Mayor if there be one and if no Mayor then to the Bailiff and it appeared by the Court that the Sheriff made his Warrant to the Bailiff and do not shew that there was no Mayor there and the Exception disallowed for if there was a Mayor the Defendant ought to shew it by Plea Secondly that the Plaintiff doth not alleadge that the Warrant made to the Bailiff was under the Sheriffs Seal as the Statute directs and the Court held the Count good notwithstanding because the Declaration was that the Sheriff by vertue of a Writ to him directed made his Warrant to the Bailiff and if it was by vertue of the Writ it shall be intended to be under his Seal HOpe versus Holman Mich. 10. Jacobi rotulo 3612. Debt upon an Obligation the Defendant pleads a forreign Attachment in London and the Plaintiff demurrs and the Exceptions were first that the Defendant had attached the Moneys in his own hands by way of Retainer and so the Custome unwarrantable Secondly it appeared that Judgement was given in the Mayors Court by the Default of him in whose hands the Money was attached and it appeared that the Defendant which brought the Action in London and he in whose hands the Attachment was made and that made Default was the same person and it is a contrariety that the same person should appear and not appear and a Prescription for that is naught and the Custome is in London that the Recoveror in London ought to finde Sureties that if the Debt be discharged within a Year and a Day then to pay the Money and did not appear by the Record that he found Sureties which was an incurable Fault and so adjudged by the Court. POtter versus Tompson Hill 14. Jacobi rotulo 3449. To one Obligation with Condition to make Assurance of Lands to such Uses therein expressed the Defendant pleads that he made a Feofment of the same Lands to other Uses which the Plaintiff accepted the Plaintiff demurrs and it was adjudged a naughty Plea for he ought not to vary from the Condition HIggenbotham versus Armot Hill 8. Jac. rotulo 906. Action of Debt brought upon a Retainer in the Office of an Husbandman for one year and so from
Habeas Corpora returned by the Sheriff and these words omitted Videlicet Quilibet Iur. per se seperatim Attach est per Pleg I. D. R. R. exitus eor cujuslibet x. s. R. W. M. L. Vic. and it was amended by the Court. ANdrews versus Delahay an Attorney of the Common Pleas Hill 14. Jac. rotulo 3057. A Bill filed against the Defendant as an Attorney upon two Bills obligatory for payment of Money and one of the Bills was not payable and due at the time of exhibiting the Bill and the Defendant pleads to Issue and the Cause received a Triall and a Verdict for the Plaintiff and afterwards the Defendant in Arrest of Judgement moved that one of the Bills were not payable at the time of exhibiting the Bill against him and thereupon the Plaintiff remitted his Damages and had Judgement for the Bill that was due HArris versus Cotton As long as the Vicar occupies his Gleab-land in his own hands he shall pay no Tithes but if he demise it to another the Lessee shall pay Tithes to the Parson that is impropriate If the Vicar sow the Land and die and his Executor takes away the Corn and doth not set forth his Tithe and the Parson brought an Action of Debt upon the Statute of 2 Ed. 6. and the Court seemed to incline that it would lie DArrell versus Andrew Mich. 14. Iaeobi rotulo 2327. An Action of Debt was brought in London for Rent reserved upon a Demise of Lands in Cawson in the Parish of D. in the County of War and of one capital Messuage The Defendant pleads Extinguishment of Rent because the Plaintiff had entred into one House called the Wooll-house and into one Buttry at the upper end of the Hall of the said House and in one House called the C. parcell of the Premises before demised upon the Defendants motion and had expelled the Defendant out of the Possession thereof and the Venire facias was of Cawson within the Parish of Dale and Exception taken because it was Infra Parocham but my Lord Hubbard said that where Land is laid in Dale in the Parish of Dale that the Venire facias may be made of Dale or within the Parish or of the Parish and both good HAll versus Winkfield An Action of Debt brought in London for a 100. l. and the Plaintiff declared upon a Recognisance taken at Serjeants Inn in Fleetstreet London before the Cheif Justice of the Common Pleas and afterwards inrolled in the Common Pleas at Westminster in Middlesex And the Defendant demurred to the Declaration and the Question was whether the Action should be brought in London or Mid. And note the Recognisance as soon as it is acknowledged is a Record and shal relate to the time of the taking to binde Serjeant Hutton said that a Scire facias may issue upon a Recognisance taken out of Court into any County and none is bound to sue Scire facias where the Recognisance is taken but after it is inrolled in the Court an Action of Debt shall be brought in the County of Middlesex At the Common Law the Execution was by Levari facias and after the Year an Action of Debt it is not a Recognisance consummate untill it be inrolled in the Court yet it taketh its life by the first acknowledgement for if you have an Action of Debt or Trespass in a forrain Shire when you have recovered Debt or Trespass your Debt or Trespass is now altered and made new My Lord Hubbard held that if I bring Debt in Norfolk and I have Judgement and bring an Action of Debt upon that Judgement it must be brought in Middlesex and so in Trespass The Inrolment of the Recognisance is but a fortification of the Recognisance MOrtimer versus Freeman Hill 9. Iacobi rotulo 2001. An Action of Debt brought for not setting out of Tithes to which the Defendant pleads Nil debet per patriam and to prove that the Plaintiff was not Parson he shewed a Deprivation of the Plaintiff for Drunkenness by the high Commissioners and the Court held for such a common Fault after Admonition the high Commissioners might deprive a Minister but because this Crime of Drunkenness was committed before the general Pardon and that the Sentence was given after the Pardon the Sentence was void For Wooll or Lamb no Action lieth upon the Statute for they are not predial Tithes nor for small Tithes If an Action of Debt be brought upon two Contracts and both found for the Plaintiff in that Case the Jury may tax Damages intire but the safer and better way is to sever the Damages for it may come to pass that an Action will not lie for one of the two and if it will not lie then your labour and charge is lost An Action of Debt brought for 300. l. upon an Obligation The Defendant after a general Imparlance demands Oyer of the Bond and pleads specially that it was but for 30. l. and it was not allowed after a general Imparlance And the Defendant pleaded that it was not his Deed which was the proper Plea in that Case PReston versus Dawson Pasch 11. Jacobi rotulo 2310. An Action of Debt brought upon a Bond for performance of Covenants in an Indenture in which Indenture was this Covenant following that the Vendor should make further Assurance at the cost and charges in the Law of the Purchasor and for Breach it was alleadged that a Note of a Fine was devised and ingrossed in Parchment and delivered to the Vendee to acknowledge the Fine at the Assises which he refused to do and the Plaintiffs Breach was demurred upon because he did not offer Costs to the Vendee and the Court held it to be idle GLyver versus Lease Trin. 11. Jac. rotulo 734. An Action of Debt brought upon a single Bill The Defendant pleads that he did infeoff the Plaintiff of Lands in satisfaction of that Debt and the Plaintiff demurred upon it and upon reading the Record ruled to be a naughty Plea to a single Bill otherwise it had been upon a Bond with a Condition to pay Money WIlliamson versus Barnsley Trin. 12. Jac. rotulo 1291. An Action of Debt brought upon an Obligation with a Condition to perform Articles that he before Easter Terme next following at the Request of the Plaintiff should surrender and yeild up to the Plaintiff his Letters Patents of the Stewardship of Bromsgrove to the intent that he might renew the said Letters Patents in his own name and it was objected at Barr that the Office of a Steward of a Court Leet or Court Baron was within the Statute of 5 E. 6. made against buying of Offices that were for Ministration and so Winch held the Stewardship of a Leet to be within the Statute and so was adjudged in Grays Case but the Question was whether the agreement to surrender be within the Statute or no the words
of the Statute are to have and injoy and Winch said it was within the Statute and so the Office of a Cursitor was within that Statute Exception was taken to an Action of Debt brought upon the Statute of E. 6. for not setting out of Tithes because the certainty of Loads of Corn were not expressed but it was held good notwithstanding HAwes versus Birch Hill 12. Jacobi rotulo 1843. An Action of Debt brought upon a Bond of 6. l. for the payment of 3. l. upon the 16. of April The Defendant pleads that an Estranger at the Defendants request the said 16. of April made an Obligation to the Plaintiff in lieu of the first Debt and adjudged naught by the whole Court for one thing in Action cannot be a satisfaction for another thing in Action but this being done by a stranger is good by no means Pasch 12. Jacobi The Court was of opinion that if Money be tendred and none ready to receive it and afterwards he to whom the Money is payable demands the Money and the other refuse to pay and afterwards an Action is brought and a Tender pleaded the Court held that the Defendant should pay Damages from the time that the Money was demanded FLeet versus Harrison Hill 13. Jac. rotulo 841. An Action of Debt brought against two Defendants one of them pleads Nil debet per patriam and the other lets a Judgement go by Default and he that waged his Law at the Day appointed performed it and Judgement that the Plaintiff should take nothing by his Writ for a Respectuatur of the Judgement was entred untill the other had done his Law WIlliamson versus Spark Mich. 13. Jac. rotulo 3511. Upon a cire facias brought against the Bail upon an Attachment of Priviledge The Defendant pleads a Release made after the Verdict and before Judgement which was before the Recognisance was forfeited and if the Recognisee may release before the Damages are ascertained or no was the Question and it seemed he might An Action of Debt brought against a Baker for a Fine imposed on him in a Court Leet and an Exception was taken because it was not alleadged that he sold Bread against the Assise of Bread made to sell for a man may make and bake Bread for his own use under the Assise limited BAcon versus Pain Trin. 14. Jac. An Action of Debt brought and declare that such a Day and Year the Defendant was a Brewer and for one Year then next following and that the Defendant the said Day at K. bought of the Plaintiff the fourth part of the Grains that the Plaintiff that Year next following should make in brewing for 3. l. to be paid upon Request The Defendant pleads that he ought him nothing and after a Triall an Exception was taken to the Declaration because the Plaintiff did not aver that he made Grains in that Year LOrd versus Huxly An Action of Debt brought on a Judgement thereupon and the Defendant taken in Execution upon that Judgement and afterwards the Plaintiff became Felo dese by which the Almoner seised of all his Goods and afterwards the Almoner would have acknowledged satisfaction of the Debt and Damages in that Judgement and doubted that he could not SAwyer versus Crompton Hill 14. Jac. rotulo The Plaintiff brought an Action of Debt for Costs given before the Judges of the Marshalsey newly erected 9 Jac. by Letters Patents of the same King within the Virge And the Plaintiff declared that whereas at the Court of the said King for the Houshold held at S. in S. within the Virge of the Houshold then at Whitehall such a Day and Year before T. B. Knight Marshall c. and F. B. c. Judges of the said Court to hear and determine all Pleas personal within the Virge between Persons not being of the Houshold arising by vertue of Letters Patents bearing Date such a Day and Year in due manner made came c. and the Court held a repugnancy in the Count and the whole Court against the Plaintiff If it had been brought upon the ancient Court it must be between two of the Houshold and they held that cost lay and the Exception was because the Plaintiff had not shewed the Grant to hold the Court. If a Bond be made to one and he doth not say in the Bond that it shall be paid to the Obligee in this case the Plaintiff must shew that it is to be paid to him though not expressed in the Bond. HOnne Executor of R. Hutton and E. May Pasch 40. Eliz. rotulo 433. An Action of Debt brought upon an Obligation with a Condition that the above bound T. G. or his Heirs do or shall at any time before the Purification of the blessed Virgin which shall be in the year 1596. according to the Custome of the Mannour c. Surrender into the hands of the Lord of the same Mannour for the time being all those c. to the use of the said R. Hutton his Heirs and Assignes for ever in such wise as the said R. Hutton his Heirs and Assignes shall or lawfully may by the custome of the Mannour be admitted c. or if after such Admittance the Premises shall be recovered against the said Rich. his Heirs or Assignes by one W. K. within four years then if he shall pay upon notice c. The Defendant pleads that the Plaintiff ought not to have his Action because the said R. Hutton after the making of the Bond and before the said Feast of the Purification which was in the year 1696. to wit the sixth of October 38 Eliz. at B. died The Plaintiff demurs and Judgement for the Plaintiff If one be indebted to one and he dieth intestate and after his Death Administration is committed to the Debtor this is no Release of the Debt If he marry the Executrix of the Debtee and the Executrix dieth the Husband shall be charged with the Debt after her Death VAughan versus Chambers Trin. 20. Eliz. rotulo 145. An Action of Debt brought upon a Bond the Defendant pleads the Statute of Usury and shews a corrupt Agreement for Money lent in the year 32. to be paid in 33. and afterwards in 35. a new Bond given for part of the first summ and it was pretended that this Bond was void but it was adjudged because the first Bond was no Corruption the later should not be LEech Attorney versus Phillips Executor of Phillips rotulo 3415. An Action of Debt brought for soliciting a Cause in the upper Bench and it was adjudged by the whole Court that an Action of Debt for Solicitors Fees would not lie but ought to bring an Action of the Case and afterwards the Court held an Action of the Case would not lie PAsch 12. Jac. Grove versus Jourdain An Action of Debt brought against an Administrator who pleads that the intestate was indebted to him
by Obligation and that he retained the Money in his hands to satisfie the Debt The Plaintiff replies that the Money was not due and payable to him at the time of the Intestates Death and that he took Administration after the Day of Payment and if the Administrator had pleased he might have took Administration before the Day of Payment and the Court held the Defendants Plea good but he shall not have the Forfeiture CArrell versus Paske Trin. 13. Jac. rotulo 1018. Debt brought upon an Obligation made at C. in the County of Surry The Defendant pleads the Priviledge of Cambridge granted to them by the Queen Eliz. for Scholars Bachelours Masters and their Servants upon Contract made within the University and shews the Bond was made in Cambridge and that he was a Servant of the Scholars to wit Bailiff of Kings Colledge in that University and inhabiting within the Town of Cambridge and Precincts of that University and therefore a priviledged Person of the same and upon reading the Record it seemed that the Defendant being a Bailiff of the Colledge is not capable of the said Priviledge PReist versus Cee Trin. 12. Jacobi rotulo 2197. An Action of Debt brought upon a Bill bearing Date 17 Novomber 1604. by which Bill the Defendant did acknowledge himself to owe the Plaintiff 10. l. to be paid to the Plaintiff at two Payments to wit 5. l. to be paid upon the 19. of November then next following and other 5. l. to be paid upon the 10. Day of December then next following The Defendant pleads it was not his Deed. The Jury finde it specially that the Defendant the 17. of November 1604. sealed and delivered to the Plaintiff one Bill obligatory shewed to the Jury bearing Date the Day and Year above and finde the Bill in haec verba Be it known c. to be paid at two Payments that is to say 5. l. to be paid the 19. of November which is the present of this Moneth and the other 5. l. on the 10. of December The Question was whether the Bill maintain the Count for the first Payment and adjudged it did RAwdon versus Turton Trin. 13. Jac. 1011. An Action of Debt brought upon a Bond for Payment of Money such a Day The Defendant pleads that he the same Day made an Obligation for the Payment of the said Money another Day which the Plaintiff accepted for the Money and Issue taken thereupon and tried for the Defendant and after the Verdict the Plaintiff moved the Court to have Judgement though the Verdict passed against him because the Plea was insufficient and that he confessed the Debt but the Court would not grant it The like Mich. 6. Jac. rotulo 1061. And the like Hill 12. Jac. CArter versus Freeman Mich. 13. Jac. An Action of Debt brought upon a Bond with a Condition that the Defendant should appear before the King at a certain Day Videlicet Die Jovis post Octobras Martini and upon a Nul tiel Record pleaded the Defendant brought his Record of Appearance Lunae post xvam Martini and this was held by the whole Court an Appearance at the Day in the Condition by the whole Court GRubham versus Thornborough Hill 12. Jac. rotulo 1773. An Action of Debt brought for Rent and for a Nomine penae the Rent due 14 November Anno 9. and no name alleadged for the Nomine penae therefore the Action would not lie for the Nomine penae but it would for Rent PAsch 44. Eliz. Elliot versus Golding An Action of Debt brought and Judgement given for the Plaintiff and a space was left in the Roll for the Costs of the Judgement and after the Year and a Day a Scire facias was brought to revive the Judgement and in the Scire facias the Costs are put in and so Judgement by Default and afterwards a Writ of Error brought and the Error was assigned because there were no Costs put into the principal Roll and afterwards the Record was removed the Count was moved that Costs might be put into the Roll but it was denied upon the first motion and afterwards Pasch 13. Jac. it was denied by the whole Court BOnd versus Green Administrator An Action of Debt brought against him as Administrator he pleads divers Judgements amounting to 670. l. and the Assignement of 100. l. Debt to the King by Deed inrolled and he pleaded that he retained his Debt in his hands and he might have given this in Evidence or pleaded it at the Liberty of the Defendant COoper versus Bacon Action of Debt brought upon the Statute of E. 6. for Tithes and the Plaintiff declares that one was seised of the Rectory of Elveley alias Kirkley in Kingston upon Hull in his Demesne as of Fee and being so seised such a Day and such a Day at Elveley alias Kirkley did demise to the Plaintiff the said Rectory with the Appurtenances to have and to hold c. for years and that by vertue thereof he hath been and is thereof possessed and that the Defendant such a Day and before and alwayes afterwards hitherto had held and occupied 30. Acres of Land in Swandland in Kingston in a place called T. and that the Tithes did belong to him The Defendant pleads Nil debet per patriam and after a Verdict it was alleadged in Arrest of Judgement that the Issue was mis-tried because the Venire facias was of Elveley alias Kirkley and it should have been of Swandland where the Tithes grew CHapman versus Pescod Trin. 11. Jac. rotulo 2106. An Action of Debt brought upon an Obligation with a Condition to give and grant to him his Heirs and Assignes The Defendant pleads that he hath been ready to give and grant and adjudged naught for he must plead that he did it otherwise it had been if the words had been as Councel should devise MAncester versus Draper Hill 10. Jac. rotulo 2613. An Action of Debt brought upon a Bond with a Condition to pay Money if C. R. shall be then living and shall before the same 20. Day of O. by due form and course in Law perfect levy and knowledge a Fine and a Recovery before his Majesties Justices of his Highness Court of Common Pleas of and in certain Houses and Tenements with the Appurtenances which the said Draper lately had and purchased of the said C. R. the Defendant pleads that C. R. was living and did not levy c. and a Demurrer and the Question was whether Draper or Ro. should levy the Fine and held that Draper should levy the Fine BAker versus Pain Hill 10. Jac. rotulo 3139. An Action of Debt brought upon a Bond to pay Rent and perform all the Covenants Grants Payments and Conditions contained in a pair of Indentures and the Defendant pleads the Indenture and performance thereof The Plaintiff assignes the Breach that the Defendant had not paid the Money The
Defendant replies that the Plaintiff had entred into part of the Premises the Day before the Day of Payment and so at Issue upon that and Exception was taken because the Plaintiff had alledged no Demand to be made and the Court held that was implied by the Issue and that it was not necessary FRyer Administrator of Mary Costiden of the Goods not administred by Mary Fryer Executrix of the said M. C. versus Jacobum Gildiich Executor of N. Pope Hill 11. Jac. rotulo 1990. The case was this two were bound to one and the Obligee makes the Wife of one of the Obligers his Executrix and one of the Obligers makes the same Woman Executrix and she dies and the Plaintiff takes Administration of the Goods of the Woman not administred and Judgement was given for the Defendant by the whole Court If an Executor hath a Lease and purchaseth the Fee-simple the Lease is gone but it shall be Assets in the Executors hands if a persnal thing be once gone it is extinct for ever If the Husband had survived the Wife he should be charged HArcock Executor of Harcock versus Wrenham Administrator of Wrenham Hill 11. Jac. rotulo 1963. A Scire facias brought to revive a Judgement had against the Intestate and the Defendant pleads Plene administravit which was held a naughty Plea by the whole Court for he cannot pay so much as Funerals before he pay the Judgement and therefore that general fully administred is naught The Jury found that the Intestate in trust conveyed one Lease to Fisher and that Fisher promised upon the Payment of 300. l. to re-assure the Interest to Wrenham and after his Death the Administrator the Defendant preferred a Bill in the Chancery as Administrator against Fisher and that the Chancery ordered that Fisher should pay the Defendant for his Interest in the Lease more then the summ received the summ of 1060. l. which was paid the Defendant accordingly and whether that should be Assets was the Question and it was held to be Assets If an Executor make gain of the Testators Money that gain shall be Assets the Doubt in this case was because this was but in Use and now whether the Court shall take notice of this Use they shall being found by the Jury Judgements shall be paid before Statutes or Recognances and Judgement was given for the Plaintiff and although in this case the Barr of generally administred be naught yet an Issue taken thereupon and tried shall not arrest the Judgement for the Plaintiff PEase and Stilman Executors Hanchet against E. Meade Mich. 11. Jac. rotulo 945. An Action of Debt brought upon an Obligation with a Condition if Meade his Executors Administrators or Assignes or any of them shall pay 20. l. within the Porch of the Parish Church of R. unto such person or persons as the said Hanchet shall by her last Will and Testament in writing limit nominate or appoint the same to be made in manner c. The Defendant pleads that the said Hanchet by her last Will and Testament in writing hath not nominated limited or appointed to what person or persons the said 20. l. should be paid The Plaintiff replies and sues that the Testator made him Executor and died and that he took upon him the burden of the Will and that the Defendant did not pay the Executor the Money and a Demurrer thereupon And if it had been to pay to her Assignee that she should name the Executor should have it such things as go by way of Executorship shall be to the Executor without nomination or appointment STannard versus Baxster Trin. 9. Jac. rotulo 1123. An Action of Debt brought for Damages recovered in an Assise of Nuzans for stopping the way before special Commissioners The Defendant pleads no such Record and the Record was delivered into the Court by the special Commissioners TRin. 8. Jac. rotulo An Action of Debt brought upon a Bond with a Condition for performance of Covenants of an Indenture The Defendant confesses the Bond and that after the making the Bond and before the purchasing the Plaintiffs Writ the Indenture by the consent and assent of Plaintiff and Defendant was cancelled and the said Plaintiff cancelled the said Indenture and it was held a naughty Plea by the said Court for it did appear but that the Bond might be forfeited For he ought to have pleaded performance of Covenants untill such a Day which Day the Indenture was cancelled BRook versus Smith Hill 9. Jacobi rotulo 829. Two Tenements in Common make a Lease and reserve a Rent and Covenant that neither should release and one of them releaseth his part this is a Breach for that in Debt they both should joyn and now by the Release the Action is gone LAny versus Aldred and another Executor Trin. 10. Jac. vel Pasch 9. Jac. rotulo 504. An Action of Debt brought against them as Executors one pleads that he was Administrator and that the Administration was committed to him by the Bishop and pleads a Recovery against him as Administrator and that he had fully administred and had no Assets to satisfie the Judgement and the other Executor acknowledged the Action and the Plea was held a good Plea but it was said the Defendant might have defeated the Action which was brought against him as Executor and therefore they would infer that it was no good Plea but it was a good Plea and it was held by the chief Justice that if an Executor of his own wrong be sued with a rightfull Executor in one Writ the Executor of his own wrong shall not by his Plea prejudice the rightfull Executor MArsh versus Curtis Hill 38. Eliz. rotulo 132. An Action of Debt brought upon an Obligation for performance of Covenants in a Lease upon which Rent is reserved and the Condition was that if the Rent should be behinde then lawfull to re-enter and the Rent was behinde and before re-entry the Rent was accepted The Question was whether he may enter for the Condition broken after the acceptance of the Rent Sir Edward Cook was of opinion that by the acceptance of the Rent he did confirm the Estate but if a Bond be entred into to perform Covenants in a Lease whereupon Rent is reserved and a Fine to be paid with a Condition of re-entry for not paying the Rent or Fine and if the Rent be received and the Fine not paid the acceptance of the Rent doth not take away the Condition for not paying the Fine R. Milton versus R. Pearsey Trin. 10. Iacobi rotulo 445. An Action of Debt brought and in the Venire facias the Defendants name was mistaken for the Venire was to impannell a Jury between R. Milton Plaintiff and I. Pearsey Defendant in a Plea of Debt and the Court held the Venire as none and a new Triall awarded and the like Judgement was given Trin. 7. Iacobi rotulo 787.
in the upper Bench. BRownsworth versus Trench Trin. 10. Iacobi rotulo 3628. An Action of Debt brought upon an Escape against a Bailiff of a Liberty and after a Triall Exception was taken to the Declaration because it was not alleadged therein that the Sheriff made a Warrant to the Bailiff upon the Execution but it was onely alleadged that at A. aforesaid by vertue of the Warrant aforesaid he took the Prisoner and saith not within his Liberty aforesaid and the Exception was held void Trin. 10. Iacobi An Action of Debt brought by Executors and the Defendant pleads that the Plaintiffs were not Executors and tried and found for the Defendant and the Defendant upon the Statute for Costs desired Costs because the Jury found against the Plaintiff that he was not Executor and if a Verdict passe against one that is not an Executor he shall pay Costs but Costs were denied by the whole Court for the Jury might finde an untruth BAlder versus Blackborn Trin. 16. Iacobi rotulo 465. An Action of Debt brought for Rent reserved upon a Lease for years the Case this Land was devised to a Woman in this manner that she should have the profits of the Land untill the Daughter of the Devisor should be eighteen years old and the Woman made the Lease in question reserving Rent and afterwards married and then died and if the Husband after her Death should have the Land untill the Daughter of the Devisor came to eighteen years old was the question and adjudged he should hold the Land for the Devise of the profits is the Devise of the Land and is not like a Lease made by a Guardian in Socage which ends by the Deâ—… of the Guardian the Declaration was for one Mesuage demised the fourth of May 15. Jac. for one year and so from year to year as long as both parties should agree paying twenty four pounds by the year and Nil debet per patriam was pleaded and the Jury found it specially that one I. W. was seised of the Tenement and held it in Socage and made it his last Will in writing and by that did devise to A. his Daughter the said Tenement and her Heirs for ever at the full Age of eighteen years the words of the Will were Item I will that my Wife and Executrix shall have the Education of my Daughter with the portion of Money and profits of my Land to her own use without account untill my Daughters Age aforesaid provided she shall pay the out-rents and keep her Daughter at School and by that Will made his Wife Executrix and the said W. died and his Wife survived and took upon her the Executorship and married with one P. the Woman performed the Condition and afterwards died and Judgement was given for the Plaintiff that it was a terme and that the Husband should have it An Action of Debt was brought against an Executor and the Case was thus Administration was committed to one during the minority of the Executor who wasted the Goods of the Testator and after the Executor attained the Age of seventeen years an Action of Debt was brought against the Executor and the opinion of the Court was prayed whether he might plead generally ne unques Executor or excuse himself by pleading the special matter and the Court doubled but most safe to plead the special matter An Action of Debt was brought for Rent reserved by Indenture payable at two Feasts or within twenty daies then next following and the Plaintiff declared upon a Lease for the Rent and because ten pound at the Feast of the Anunciation 10. Jacobi was behind and unpaid the Action was brought the Defendant pleads Non demisit and a Verdict for the Plaintiff and after a Triall exception was taken to the Declaration because it was not alleadged that the Rent was arrere at that Feast and twenty daies after but it was not allowed after a Verdict because he should have taken advantage thereof before RAtliff versus Executors Pasch 15. Jacobi An Action of Debt brought upon an Obligation to perform Covenants in an Indenture The Defendant pleads performance of the Covenants the Plaintiff alleadges a breach upon this Covenant that the Lessee should injoy the Land without any lawfull interruption or disturbance of the Lessor or his Executors and shewes that the Executors entred upon him in the Land and outed him and shews not any interruption for any just cause and adjudged good in the upper Bench. WHitton versus Bye Trin. 16. Jacobi It was adjudged in the upper Bench in an Action of Debt brought by a Lessor against a Lessee for years for Rent reserved during the Tearme being behind and unpaid that a Release pleaded to be made by the Lessor to the Lessee six years before the Rent was arrere of all Demands was a good Barr One cannot reserve a Rent to a stranger it must be reserved according to the privity WAinford Administrator Kirby versus Warner Trin. 13. Jacobi rotulo 1906. An Action of Debt brought upon a Bond to which the Defendant pleads that the intestate was indebted to him in such a sum and that he retained c. in his hands to satisfie himself of the Debt due to him And that he had not assets over to satisfie the Plaintiff to which Plea the Plaintiff demurrs because he did not plead generally fully administred but an Exception was taken because he shewed not that the Condition of the Bond was for payment of Money STone versus Goddard Trin. 14. Jacobi rotulo 2258. An Action of Debt brought upon divers Emissets of divers Wares Videlicet unum ahenum for five shillings unum scabum for six shillings and so divers other words which the Court could not understand what they signified in regard no Anglice was put to them and the Defendant pleaded Nil debet per patriam and the Jury gave a Verdict for the Plaintiff and Damages given for the whole Debt and moved in Arrest of Judgement and Judgement that the Plaintiff should have no Judgement for the insufficiency of his Declaration WEeks versus Wright unum Clericorum R. B. The Plaintiff exhibited a Bill against the Defendant for Money due upon an Obligation and Issue was joyned and the Cause tried and a Verdict for the Plaintiff and after Triall the Defendant moved in Arrest of Judgement that the Bill was not filed that it was not helped by the Statute of Jeofayles nor within that Statute for it is an Original but afterwards the Court granted that a new Bill should be filed so that the matter might be put to arbitrement and if the Arbitrators could not determine the matter the Court would And note the Court seemed to be of an opinion that the want of a Bill is not helped by the Statute WItchoct Linesey versus Nine Trin. 9. Jacobi rotulo 726. An Action of Debt brought upon an Obligation to perform the Covenants contained in an
not to the age of the Daughter for the age of the Daughter shall be intended to be set down for the receit of her legacy of forty pounds and for no other purpose and the Defendant within the time in which the Rent demanded is supposed to be due had not determined his Will as appears by the Verdict but Fennor and W. said that by the Verdict that the Defendant entred by force of the lease and occupied the land at the time comprised in the Declaration and more and that the Tenant at will cannot determine his will within a little time before the year end for that would prove very mischeivous to the lessor that his Tenant at will should determine his will within the year and refuse to occupy the land twenty dayes before the year end and in 21 H. 7. Crooks Reports it appears that a Lessee at will cannot determine his will within the year to the prejudice of the Lessor but that he shall answer the whole Rent to the Lessor but note it appeared that the Lessee at will was expulsed by the Plaintif that was Lessor and no other thing although done by his agreement can determine the Lease against the Lessor for it is Covin if the Lessee be not privy and acquainted with it which was granted by the whole Court and all of them agreed in the Title against the Plaintif but as the Reporter affirmed Popham was absent and hearing the Case was of opinion that the Plaintif had an interest by the words of the will JEffry versus Guy Mich. 3. Jacobi An Action of Debt brought upon an Obligation with Condition that if Jeffry the Defendant perform all Covenants in such an Indenture that then c. and one Covenant was that he should permit Guy the Plaintiffe from time to time to come and see if the House Leased by Guy and K. his Wife were in repair the Case was thus J. Bill and K. his Wife were Tenants in Tail of a house and had Issue J. B. dies K. marries Guy the Plaintiffe and they two make a Lease by Indenture to Jeffry for twenty years yeelding and paying to them and their Heirs three pounds Rent by the year with the Covenant as aforesaid Jeffry pleads in Barr the former intail and the death of R. and that VV. the Issue in Tail such a day entred before which Entry the Condition was not broken Guy replies that William came with him upon the Land to see if reparations c. and traverses the Entry of William in manner and form prout c. and Issue joyned upon the traverse and found for the Plaintiffe and Judgement given in the common Pleas upon which Judgement Jeffry brought Writ of Error in the Kings Bench and Judgement affirmed there but it was assigned for Error the Jury had not assigned any breach of Covenant in Jeffry and so had showed no cause of action but the Court held he need not in this Case for by the speciall Issue tendred by Jeffry the Plaintiffe was inforced one speciall replication to that point tendred and the Plaintiffe could not proceed error and it is not like the Case of an arbitrement wherein Debt upon an Obligation to perform the award the Defendant pleads nullum fecer arbitrium then the Defenâ—… in his replication ought to set forth the award and assign his breach because the Defendants Plea is generall but if in such Case the Defendant should plead a release of all demands after the Arbi-Arbitrement by which he offers a special point in Issue there it suffices if the Plaintiff answers to the Release or other special matter alleadged by the Defendant without assigning any Breach so in this Case the special Plea of the Defendant had disabled the Plaintiff that he could not assign any Breach of Covenants but of necessity ought to answer to the special matter alleadged RAstell versus Draper Mich. 3. Jacobi An Action of Debt brought for nine and thirty pounds the Plaintiff declares that the first of May primo Iacobi sold to the Defendant twenty Northern Clothes for sixty pounds Flemish Money to be paid upon Request which sixty pounds Flemish Money amount to nine and thirty pounds English Money and that the Defendant though often requested had not paid the nine and thirty pounds to his Damages of c. The Defendant pleads Nil debet per patriam and found for the Plaintiff and moved in Arrest of Judgement that the Plaintiff should have demanded the summ according to the Contract which was for sixty pounds Flemish and to have shewed that it amounts to nine and thirty pounds English but the whole Court against it for the Debt ought to be demanded by a name known and the Judges are not skilled in Flemish Money and also when the Plaintiff hath his Judgement he could not have his Execution by that name for the Sheriff cannot tell how to levy the Money in Flemish and also it is made good by the Verdict for the Jury have found the Debt demanded to wit nine and thirty pounds But if the Contract had been for so many Ounces of Flemish Money or a Barr of Silver and Gold now it cannot be demanded by the name of twenty pounds or such a summ which is not Coin nor used in Trade or Merchandise but in such Case must have a Writ of Detinue and in that recover the thing or the value and so in the Book of Entries fol. 157. is the President where Debt was brought upon two severall Obligations and demands eight and twenty pounds and declares severally that by one Obligation he owed eight and twenty pounds of Flemish Money and 34 H. 6. 12. 9 E. 4. 46. But note in that Case the Plaintiff if he would might have declared in the Detinet and it had been good ROlles versus Osborn Mich. 3. Jac. The Plaintiff brought an Action of Debt against the Defendant upon a Bond of a thousand pounds and Serjeant Nichols moved the Court for the Defendant and shewed that the Plaintiff and Defendant were obliged each to other in a thousand pounds a peice that they should intermarry before such a Day and both their Obligations were forfeited and each of them sued the other and the Defendant prayed that common Bail might be accepted of her and she would accept of common Bail of the Plaintiff and the Court held it reasonable but said if they would marry both their Bonds might be saved BArneshurst versus Yelverton Hill 3. Jacobi The Plaintiff as Administrator of I. S. brought an Action of Debt against the Defendant upon a Bond and obtained a Judgement and afterwards the Administration is revoked yet notwithstanding the Plaintiff proceeded and took the Defendant in Execution and upon a Motion in the Court the Court held the Execution void and that the Defendant ought to be discharged because it issued out erroneously for the Letters of Administration being revoked the power of the Plaintiff is gone
to seal and he refused and upon such Refusall the Plaintiff brought his Action and a Verdict was given for the Plaintiff and Serjeant Yelverton moved in Arrest of Judgement that the Plaintiff ought not to have Judgement for he said that the Defendant was not bound and compellable to seal that Obligation because it was not in Law any Assurance but a collateral thing and the whole Court agreed that and therefore being the Action was brought for refusing to seal the Obligation and Letter of Attorney and the Judgement according it ought to be arrested but Cock said that Judgement ought not to be arrested for the Premises of the Delaration it appeared that he refused to seal the Letter of Attorney and thereupon concluded that it should not be arrested and Fennor said that the Letter of Attorney was not any such Assurance as the Law required in such Case for when he had made the Surrender it should be accounted the Surrender of him that made the Assurance and he said he should make a present Assurance of it but Tanfeild was of another opinion and said that when the Surrender was made it shall be said to be the immediate Surrender of him that made the Letter of Atturney and such an assurance as the Law required and Yelverton Justice said the Letter of Atturney was lame for this cause the Letter of Atturney was made to one for the surrendring of such a Copy-hold and did not say in the Letter of Atturney for him and in his name for otherwise the Copy-hold might be the Copy-hold of him that surrendred by vertue of the Letter of Atturney and then he should surrender his own Copy-hold but Tanfeild was of another opinion because he said in the Letter of Atturney that he did constitute and appoint and in his stead and place put such a one which words in his stead and place are as full as if he should have said in his name HOllingworth versus Huntley Pasch 5 Jacobi An Action of Debt brought upon an Obligation the Condition amongst many other things contained that the Husband and Wife being Lessees for life of certain Lands that if the said Husband and Wife should levy a Fine to an estranger at the Costs and Charges of an estranger and also that they should levy a Fine of other Lands that they also held for their lives to an estranger and at their Charge then c. the Obliger sayes that the Husband and Wife did offer to levy the Fine if the estranger to whom the Fine was to be delivered would bear their Charges the Obligee demurres and it was adjudged for the Plaintiffe because the levying the second Fine had not any reference to the other because they are two distinct sentences and these words and also make them so Man versus Somerton Pasch 5. Jacobi The Plaintiffe being Parson of Henley brought an action of Debt for six hundred pounds upon the Statute of 〈◊〉 6. for not setting forth Tithe of Wood and the Plaintiffe shews that the Defendant had cut down two hundred loads of Wood to the value of two hundred pounds and saith the tenth part of that did amount to two hundred pounds and so he brought his action for six hundred pounds upon the Statute and the Plaintiffe was nonsuit for one fault in his Declaration for whereas he names the price of the Wood to be two hundred pounds it was mistaken for it should have been two thousand pounds for he demanded more for the tenth part then the principall is by his own shewing and Tanfeild Justice held that Beech by the common Law is not Timber and so it was adjudged in Cary and Pagets Case and it was held that Tithes shall not be paid for Beech above the growth of twenty years in a common Countrey for Wood as in Buckingham-shire for there it is reputed Timber but in a plentifull Countrey of Wood it is otherwise for there it is not Timber and Tithes shall be paid for such wood Silva cedua for which Tithes shall be paid is under the growth of twenty years but Tithes shall be paid for such wood which is not Timber which is above the growth of twenty years PErcher versus Vaughan Trin. 5. Jac. An action of Debt brought upon an Obligation for six pounds thirteen shillings eight pence The Defendant demands Oyer of the Obligation and imparles and after an imparlance the Defendant comes and sayes there was variance between the Plaintiffes writ and the Obligation for it appeared by the Obligation that the Defendant was obliged in viginti nobilis and so his action ought to be brought according to the Obligation and demands Judgement if the Plaintiffe ought to have his action the Plaintiffe demurres and it was argued by the Plaintiffes counsell first that it was no variance for it was said that twenty nobles and six pounds thirteen shillings eight pence were all one in substance if a man be bound to pay a hundred nobles and brings his action for fifty marks it is not variance 34 H. 8. 12. and 4 E. 3. Fitzherbert Title varians 102. agrees to that but if a man be obliged to pay certain money in Flemish money he ought to shew the performance of that strictly 9 Ed. 4. 49. and the Plaintiffes counsell said that it was variance it could not be shewed after an Imparlance in Marks Case Co. 5. 74. and said the conclusion of the Defendants Plea to demand Judgement of the Plaintiffe ought to have his action was not good for this Plea was not in barr of the action but in abatement of the Writ and Yelverton Justice agreed to that and he said when the Obligation was in viginti nobilis it shall be intended twenty nobles and good Tanfeild said that when there is no good and apt Latine words for a thing no unapt Latine word is put in the Bond for that thing the Bond is void as when a man is bound in quinque libris it it was adjudged in Mich. Term 5 Jac. that the Obligation was void because there was a fit Latine word and that was quinque and so it was adjudged in the Lord Danvers Case where the Indictment for one blow super capud and it was held void because it was an unapt word and there was a fit and apt word to wit Caput and VVilliams agreed to this for he said it was adjudged in the common Pleas between Pencrosse and Tout a man was bound in a Bond in viginti literis when it should have been viginti libris and adjudged void for the same cause but after in Hillary Term the Plaintiffe had Judgement because in one Dictionary nobilis was a Latine word for six shillings eight pence VEntris versus Farmer Trin. 5. Jacobi A Lease was made for years rendering Rent payable at a place of the Land and the Court was moved whether a Demand of the Rent may not be made upon the Land but denied by the
whole Court for they said that the Demand must be made at the place of payment although it be of the Land FIeld versus Hunt Mich. 5. Jacobi Hunt in VVorcester Court obtained a Judgement after a Verdict in Debt upon a Contract for twenty Sheep and after it was removed by a Writ of Error into the Kings Bench and generall Errors assigned but upon opening the Errors it was shewed the Court that there was no Declaration in VVorcester Court for the Declaration was thus Raphael Hunt complains against H. Field of a Plea that he render to him twenty pounds which he owes unto him and unjustly detains and whereof the same Plaintift by M. his Attorney whereas the said Defendant c. and by Fennor VVillams and Cook it is no Declaration for Default of this word Dicit and the sense is imperfect and although Yelverton objected that a Declaration is sufficient if it be good to a common intent and Quer. being writ short it may be Queritur and then it is and whereof the same complaines but the Court held that would not help for it is not certain to whom the word Idem should refer whether to the Plaintiff or Defendant and of the two it should rather refer to the Defendant which is the next Antecedent and the Court held it matter of substance which is wanting and therefore naught but if it had been 4. and whereof the same Raphael quer being writ short it had been good for because the party Plaintiff is certainly named and then Quer. could have no other sense then Queritur and Judgement reversed which mark HArrison versus Fulstow Mich. 5. Jacobi The Plaintiff brought Action of Debt for fourscore and six pounds in the Common Pleas against T. Harrison and the Capias was continued accordingly against T. Harrison but the Plur. capias was against William Harrison which was the very name of the Defendant and that was but for fourscore and five pounds which varied from the first Entry and William Harrison appeared upon the Exigent and the Plaintiff declares against William and he pleads and they are at Issue by the name of William and a Verdict for the Plaintiff and Judgement accordingly against William and upon a Writ of Error it was assigned for Error that the Original did not maintain the Proceedings for the Original is against Tho. and the Proceedings against William and the Plaintiffs Counsel would have excused it because the Judgement being against William and the Original against Tho. as it is certified it cannot be the Original against William and so the Judgement against William being without Original it is aided by the Statute after a Verdict but the Court held it to be Error for there is great Difference between no Original and a naughty Original for the want of an Original is helped but not a vitious Original and Judgement was reversed for upon Diminution alleadged that this Original was certified as the Original in that Suit or else there was no Obtulit at all LOthbury versus Humfrey Mich. 5. Jacobi Lothbury and his Wife Administratrix of VV. R. brought an Action of Debt as Administrator upon an Obligation of forty Marks dated 4. April 38 Eliz. made by the Defendant to the Intestate 1. the Defendant pleades that Ridge the Intestate October the first Jacobi made his Will and made the Defendant his Executor and devised the Obligation and the Money therein contained to one H. Son of the Defendant and died after whose Death the Defendant takes upon him the burthen of the Executorship and administers divers Goods of Ridges and that he is ready to aver this to which Plea the Plaintiff demurrs generally and adjudged for the Plaintiff for the Defendants Plea is not good without a Traverse that Ridge died intestate For the Action is brought as Administrator and they count upon a dying intestate and that being the ground of the Action ought to be traversed as it is 9 H. 6. 7. Debt brought against one as Administrator of J. and counts that J. died intestate the Defendant pleads that J. made his Will and made him Executor and held no Plea without a Traverse and the same Law 7 H. 6. 13. Debt brought against one R. Executor of R the Defendant pleads that R. died intestate at such a place and held no Plea for if the Plaintiff maintain that R. made the Defendant Executor and the other say that R. died intestate at such a place this makes no Issue and therefore the Defendant ought to traverse that R. died intestate without that that he made him Executor and 4 H. 7. 13. the very Case in question is adjudged that such a Plea in Barr is not good without a Traverse to wit to say without that that R. died intestate according to the 3 H 7. 14. and this was agreed by the whole Court without Argument CHeyney versus Sell Mich. 5. Jac. Cheyney as Executor of Cheyny brought an Action of Debt upon an Obligation against Sell the case was that the Testator had put himself as an Apprentice to Sell for seven years and Sell bound himself to pay to his Apprentice his Executors or Assignes 10 l. at the time of the end or determination of his Apprentiship the Apprentice serves six years and then dies and it was moved by Towse that the Money was due at the time of his Death because then his Apprentiship ended for he said if a man make a Lease for one and twenty years to another and oblige himself to pay to the Lessee ten pounds at the end and expiration of his Term and within those years the Lessor infeoffes the Lessee so the term expires and the ten pounds should be paid instantly but Cook denied that Case because the Lessee hastened the end of his terme but he said that if a man lease Land to another for seven years if the Lessee should so long live and the Lessor oblige himself to pay ten pounds at the end of his terme and he die within seven years there he was of opinion the Money was presently due upon his Death but in the principal case the whole Court held the chief Justice being absent that the Obligation was discharged and that the Money should notbe paid WIllot versus Spencer Mich. 9. Jacobi The Plaintiff brought an Action of Debt for Tithes of Wood upon the Statute of 2 E. 6. and Forster argued that Judgement ought not to be given for the Plaintiff because the Plaintiff did not shew in his Plaint that he was Parson for he ought to bring his Action according to that name that he claimed the Tithes by and this ought to be expressed in the Queritur and therefore if a man bring his Action to recover any thing as Heir Executor or Sheriff he ought to name himself so in the Queritur 30 H. 6. 9 H. 4. but Towse said the same Exception was taken between Merrick and Peters and disallowed Fleming Justice said
his house which he could not do for the entring is one act done and ended at the going out again And therefore if he re-enter it is a new Trespass and the continuando is only alledged for the aggravation of damages 2 R. 3. 15. 10. E. 3. 10. 16. E. 3. 24. That a continuando cannot be for breaking the House but Doddridge and Haughton Justices the rest being silent were of opinion that it might be alledged that a continuando for although it might be that if hee went forth and re-entred it should be a new Trespass but if upon his first Entry he continued divers dayes it might be alledged with a continuando And see for that Mich. 38. El. in the Common Pleas fol. 118. If a Disseisee re-enter he shall have an Action of Trespass against the Disseisor with a continuando And so is Fitzherberts Nabrevium 91. L. that a continuando may be laid as well for breaking a House as eating the Grass and so is 10. E. 3. 10. and 20. H. 7. 30. by the opinion of Gapley GEush against Mynne Pach. 11. Jacobi An Action of Trespass brought wherefore by Force and Armes the Close of the Plaintiff did break c. The Defendant justified by reason there was a report that a Vermine called a Badger was found there to the great damage of the Inhabitants by reason whereof he uncoupled his Beagles in the place where c. and hunted there and found the Badger and pursued him untill he Earthed in the place where c. by reason whereof he digged the ground and took the Badger and killed him and afterwards hee stopped up the Earth again which is the same Trespass and demands Judgment whereupon the Plaintiff demurs And upon reading the Record Scamber of the Inner Temple was for the Demurrer and that the Defendant could not justifie as this case was And first he was of opinion that the Common Law warrants hunting such noysome Beasts although it be in the Lands of another because it is good and profitable to the Common-wealth that such hurtfull Beasts should be extirpated according to the 8. E. 4. 15. And Fishermen may justifie their Nets upon anothers Land 13. H. 8. 16. 22. H. 6. 49. A man may justifie entring into a house to serve a Subpaena 3. H. 6. 336. A man may justifie the entring into anothers Land with the Sheriff to help him to distrain but otherwise it is for things of pleasure as 38. E. 3. 10. B. You cannot justifie the Entry when your Hawk hath killed a Pheasant in anothers Land and so for hunting of Hares or Conies in the Free-hold of another but although the Law allows and permits such Entries as aforesaid yet the Law requires that such things shall be done in an ordinary and usuall manner as 12. H. 8. 2. A Commoner cannot digge the Land to make Trenches although it be for the benefit of another and this is confirmed and explained by the Statute of 8. Eliz. cap. 15. For although that Statute gives reward for the killing of Vermins yet the Statute further saies that it must be with consent and with reasonable Engines and Devices 2. R. 2. Barr. 237. Grant of Fish in the Pond one cannot dig the Land and make a Sluce but must take with them Nets And so if a man grant to me all his Trees in such a place I I cannot grub up the roots out of the earth if there be any other way to take them but if there be no other way then it is otherwise as 9 Ed. 4. 35. a. A grant to put a Pipe in my Land and afterward it is stopped I may dig to mend it by the opinion of the Court and therefore there being an Ordinary course to wit hunting to kill the Badger the digging for that is unlawfull and the Action will well ly Mich. 36. and 37 Eliz. 60. Nicholas Case expressely for a Fox and Fenner held it was not lawfull to break a Hedge in the pursuit MIles against Jones Pasch 11 Jac. Miles brought an Action of Trespasse against Jones wherefore by force and Arms his goods c. The Defendant pleads that the Plaintiff 5 Jacobi acknowledged a Recognisance of 100. l. at Mich. at which day he did not pay it and that two years after the Recognisance was extended upon his goods because the monies were not satisfied at the day nor at any time after the Plaintiff replies that they were paid in the sixth year of James and desires this that it may be inquired onely by the Countrey and the Defendant likewise and upon the Triall it was found for the Plaintiff and it was new moved in arrest of Judgement by Goldsmith that there was no Issue joyned for an Issue ought to be joyned upon a thing alledged by the party DOyly against White and Webb Trin. 11 Jacobi Doyly brought an Action of Assault Battery and imprisonment of his wife against White and Webb The Defendant pleads a speciall Justification to wit that in November 2 Jacobi an Action of Trespass was brought in the Common pleas by one A. against Julian Goddard and upon the generall Issue it was found for J. G. and Judgement given for her and afterwards and before Execution J. G. takes to Husband the now plaintiff and afterwards brings a Writ of Error in the Kings Bench and upon a Scire Facias against the said Julian the Judgement in the Common pleas was reversed and costs given to A. the plaintif in the Writ of Error and aftewards a Capias ad satisfaciend was directed to the now Defendants to take the said I. G. by Force of which the said Defendants took the woman of the now plaintif with an averment that the said I. G. and the Wife of the now Plaintif were one and the same person and the plaintif demurres upon this plea and Yelverton moved that this justification was not good for divers causes first when the Sherif is to execute a process he is to do it duly and upon the right person at his perill and for that see 11 H. 4. 90. b. If the Sherif take the goods of another in Execution he is a trespassor 5 E. 4. 50. a. If a Capias be to take I. S. and there be two of the same name he ought to look to take the right man at his perill and as he ought to take notice so he must pursue his authority and for this see 10. E. 4. 12. b. if a Capias issue out against I. S. the Son of A. and he take I. S. the Son of B. false imprisonment lies against him and in a Case when his Warrant is against I. G. there is no such J. G. for by her marriage with the Plaintiff she had another name and he is therefore a Trespassor for the taking of J. Doyly and his averment cannot help him because it agrees not with his Warrant and so cannot be intended to be the same person but if the variance was
to viewers and searchers this doth not abridge the power of the Alneger for this is but an addition of greater care and diligence and by the statute of 39. and 43. Eliz. If upon a search they find any forfeyture they shall have it but if they do not find the Alneger may find it and then the King shall have it And to the Second he answered that true it is for every 64. of clothes the Alneger ought to have foure pence for his Fee and though that some peeces of cloth are more broade then others yet the lobour of the Alneger to measure them is all one So he concluded and demanded Judgement for the plaintiff Hillary 7. Jacobi 1609. In the Common Bench. Rutlage against Clarke IN Account the Plaintiff declares that the Defendant hath received of his money by the hands of a stranger to give an account The Defendant pleades in Bar that he received to deliver over to a stranger the which he hath done accordingly without that that he received it to make any of account otherwise then in this manner and it was resolved that the Plea in Bar was good without traverse for when he received the money he is to deliver it over or to give an account of it to the Plaintiff so that he is accountable Conditionally but the traverse is repungnant to the Plea though it be otherwise or another way against the Book of 9. Ed. 4. 15 See 41. Ed. 3. 7. 1. Ed. 5. 22. H. 6. 49 21 Ed. 4. 4. 66 1. Ed. 5. 2. that it is a good Bar without traverse But Brooke in abridging the case of 21. Ed. 4. 66 in Title of account saith that it seemes that the traverse ought to be without that that he was his receiver in other manner and there and in the Book at large are that Justices that is Coke Nele and Vavasor against Bryan that it ought to be traversed But here in the principall case it was adjudged that the traverse made the Plea ill Hillary 7. Jacobi 1609. In the Common Bench. Dunmole against Glyles THE case was this Grand-Father Father and Son the Grand-Father was possessed of a Tearme for two and twenty yeares to come devised to the Son the Land for one and twenty yeares and that the Father should have it during the Mynority of the Son and makes the Son his Executor and dies the Son being within the age of one and twenty yeares the Father enters into the Land and makes a Lease for seven yeares by Indenture untill the Son came to full age the Father makes his Son his Executor and dies The Son enters by force of the devise made by the Grand-Father And the question was if the Son shall avoid the Lease made by his Father and it was agreed that he might in proofe of which a Judgement was cyted which was in the Kings Bench Mich. 5. of Eliz. Rot. 459. or 499. In the Prioresse of Ankoresse Case where a Tearme was devised to one and if he died within the Tearme then to such of the Daughters of the Devisor which then should not be preferred the Devisor dieth the Tearme was extended for the Debt of the first Devisee and then he died the extent was avoided by the Daughters not preferred and they grounded their Judgement upon the former Judgements in Weltden and Eltingtons case and Paramores and Yardleys case in the Comment and for that the Law intends that a Devisor is Inops consillij and for that his devise shall have favourable construction according to his intent appearing within the devise and it was said by Coke that in many cases a man may make such an Estate by devise that he cannot make by an Act executed in his life time as it was adjudged in Graveners case where a man devises his Lands to his Executors for payment of his Debts that there the Executors have Interest that there the Executor of Executors shal have that and such Estate cannot be executed by Act in the life of the Devisor and so it was concluded by them all that the Son shall avoid the Lease made by the Father for the Devise was Executory and doth not vest till the full age of the Son and then Executor and shall avoid all Acts made by the Father by which Judgement was given accordingly Freeman against Baspoule See 9. Coke 97. b. THE case was this A. was indebted to B. and they both died the Heire of A. for good consideration assumed to the Administrator of B. that he would pay to the said Administrator the said Debt and for the not payment of that according to the Assumption the Administrator after brought an Action and then the said Heire and the Administrator submitted themselves to the award and arbitrement of C. and became bound one to the other to stand to the award accordingly so that the said Arbitrator makes his award of all the matters and controversies between them before such a day C. the Arbitrator before the day recyted the Assumpsit and the debt as aforesaid and agreed that the Heire should pay the Administrator so much money and that published according to their submission And in Action upon the case Nullum fecit Arbitrium was pleaded and upon demurrer it was objected that the award was void First For that it was for one party only and nothing was arbitrated of the other and to prove this the Book of 7. H. 6. 6. was cited and 39. H. 6. 9. see 2 R. 3. 18. b. And this also appeares by the pleading of an award for he which pleades it that he hath performed all things which are to be performed of his part And that the other pleades performance of all thing which are to be performed of his part by which it appeares that there ought to be performance of both parts and by consequence one award to both parties according to 22. H. 6. 52. Secondly that the award was void for that that the submission was of all controversies so that the Arbitrator delivered his award of all controversies c. And there was no award of the said Suit between the parties and for that he hath not made an Arbitrement of all controversies and by that the award was void and to prove that the Bookes in 4 Eliz. Dyer 216. Pumfreies award and 19. Eliz. Dyer 356. 39. and 39. H. 6. 9. Where it is said that if the submission were of all things and the Arbitrement of one only that is a void Arbitrement Thirdly For that it was not limited within the award at what day nor at what place the money should be paid by the Heire to the Administrator and for this cause also it shall be void for it ought to be payd immediatly and if the Heire cannot find the Administrator he forthwith hath forfeyted his Obligation and for that in this point it is uncertain and for that shall be void as it is in Samons case 5. Coke 77. b. Where
a man off an action of a higher nature 219 Vsage its exposition 222 Usitatum whom it doth advantage ibid Variance what 239 Valuable consideration out of the statute 102 Vnity of possession 26 Uoluntas donatores how to be taken 77 Vexation unjust remediable how 100 Vniversity of Oxford was removed for a certain time 244 Vniversity not locall ibid Variance what 245 W WAles councell and presidents Jurisdiction 29 Wast 46 150 168 Wittall who 37 Westminster 2 chap 35 expounded 92 93 94 95 Writs 147 Warrantia chartae 169 Warranty to a tenant pur view 191 Warrantia chartae not upon two deeds 56 Writ of error 137 208 Wife joyn with her husb in feoff what shall bind 141 Wager of law 255 FINIS Case for words You are a Bastard tried by the Countrey Judgement arrested because the Plaintiff did not averr that he was an Attonrney at the time of the words spoken Case for words which dâ—d amount to but petty Larceny For calling one Witch no Action will lie If Felony be committed good cause to arrest one for it but not to speak words to defame one A Feme covert cannot convert Action upon the casebrought upon a collateral consideration and good Judgement reversed by Writ of Error because Sheriffs name was omitted on the venire fac Case for words not actionable Gase for words A man shall not be punished for mistaking the Law Case for words The like The like for Words Judgement arrested because the Plaintiff omitted to shew in his Declaration the words were spoken of himself The Defendants Justification adjudged naught because he justified for words that were actionable To do a thing allowable by Law is no conversion The Defendants Justification amounted but to Noguilty and adjudged naught Judgement arrested for want of certainty in the Count. Judgement arrested for that the consideration was not valuable Case forwords for calling an Attourney Bribing Knave Judgement arrested being mis-tried An inuendo will not maintain an Action Difference between a promise executory and executed quod nota Non cul pleaded where Non assumpsit should have been pleaded and adjudged a good Issue Action of case for words upon the statute of 1. Jac. against Invocation of Spirits Ehe Imparlannce role supplied by the Issue being perfect Judgement arrested for not shewing the Letters of Administration Judgement arrested for that the Communication did not appear but by the Inuendo Action of the Case for calling a man mainsworn fellow Moved in Arrest of Judgement because no Demand alleadged but not allowed Judgement arrested for incertainty in the Declaration By a general Pardon both Punishment and Fault taken away Promise upon condition notice not necessary Nota. Judgement arrested for incertainty in the Count and for that the promise was made by an Infant Justification for calling a man perjured dis-allowed because he was t convicted Action of the Case will not lie for calling a Currier Barretor For this word Papist no Action will lie unless spoken of a Bishop Nota. Action of the Case for double prosecution of a fieri sac Upon a non est invent returned upon an Outlary where the party escaped the Plaintiff hath his Election where to bring his Action Judgement arrested for want of an Averment Judgement arrested for the incertainty of the Count. For collateral matters which are not Duties a Request is necessary The word Witch will not bear an Action An implied promise where it is upon the reality will not lie except upon a collateral cause An Indebitat assumpsit for money ruled good without expressing for what Action against the Sheriffs of London for discharging one who was arrested coming to defend a suit depending there The Court cannot discharge one arrested except he be arrested in the face of the Court. Judgement stayed for variance between the Count and Writ to inquiry Release by the Husband pleaded in Bar to an Action brought by the Wife after his Death for money to be allowed her after his Death and adjudged no Bar. Action for calling an Attourney Champertor The Roll mended after the Record was certified by Writ of Errour it being the Clarks misprision He is a forging Knave spoken of an Attourney actionable Implyed words will not beare an action Trover brought by Administrator as of his owne goods and adjudged good Demand and demall makes a Conversion The Sheriff justifies by vertue of a Process out of the Exchequer to levy of the Occupiers of S. Lands 59. s. arrear upon the said Lands Common appurtenant cannot be divided Mis-triall the Venn being mistaken Judgement arrested for a mistake of the Jury In consideration the Plaintiff would agree the Testators son should marry the Plaintiffs daughter adjudged a good consideration Rents arrear no Plea in Covenant Difference between Covenant and Debt to bring an Action Difference between Covenant and Debt to bring an Action Breach assigned in default of the Party that never sealed the Indenture of Covenants Covenant lies against the first Lessee upon breach of Covenant made by the Assignee Difference between Covenant and Debt Covenant upon a void Lease is good Action would not lie because if the Covenant was not performed Piracy is no excuse to perform a Covenant Judgement arrested for default in the Declaration A Covenant in Law shall not be extended to make a man do more then he can A Suit in Chancery no Disturbance Judgement arrested for defects in the Declaration Breach that one entred and shews not by what Title and naught Release cannot be given in Evidence upon a Plea that the Defendant was never a Receiver of the Plaintiffs Money In Account the Process are sum Attaint and Distress In Account two Judgements and upon a Nichil Process of Vlamy lies Account against a Baily local The Defendant may wage his Law if the Receit be per manus proprias Nota. In Account the Writ abates the Death Nota. Nota. Nota. Matter in discharge of the Actions shall not be pleaded in Bar. Nota. Nota. Judgement in Account upon a special Verdict Misprision of the Clerk amended after Verdict No Tenant at the time of the Writ purchased nor afterwards and if c. no Disseisin Note upon the Kings Grant View to be there where the Office is performed Another Writ brought and hanging a good Plea in abatement Assise taken by default against Harvey and the other Tenant pleaded in abatement of the Assise that there was a Quare impedit depending Nota. The King cannot create an Office to the Queen who may bring an Assise No Costs in a non-suit in Assise The Court was denied a Supersedeas the surmise being onely matter in suit Nota. A Writ of Covenant brought against more then acknowledged and prayed to be amended and denied Lease made to one during the life two if one die the Lease is ended Nota. A case of Jointure Nota bene Difference between Tenant at will and sufferance Joynt Debt and Contract cannot have several Pleas. Nota. Nota.
Nota. If I command one to do a Trespass an Action will lie against him Wife not bound to perform Covenants of the Lessee Nota. No Action for small Tithes Administration granted during minority not within the Statute 21 H. 8. Nota. Ordinary cannot make a Divident of themselves Legacy of Land shall not be sued for in Court Christian Nota. For Tithes Nota. Nota. Recitall shall not inlarge the Grant Nota. Money paid by an Executor upon a usurious Contract is a Devastavit Proportiament of Rent No Attornement necessary for Acts in Law Nota. For Tithes Nota. Note how far Proof extends Nota Difference Nota. Nota. Nota. Nota. Copy-hold land extendable upon Statute of Bankrupt Being a member of the Cinque Ports will not free one from Arrest Difference of things that are in Prender and that are in Render Nota. Omission in awarding the venire of these words Quoad triand c. held good Local things shall not be made transitory A Tales prayed by the Defendant upon the Plaintiffs Distring in another Terme but denied If Chamberlain of Chester make an ill Returne the Sheriff shall be amerced No Distress in a Court Baron but by Prescription Actions upon penal Statutes not within the Statute of Jeofailes Nota. Judges not meddle with matters of fact Nota. Information against three and two appear may declare against those two Nota. Return of a Sheriff insufficient upon a Statute Merchant for omitting that he had no other Lands c. Nota. A Statute first acknowledged shall be preferred before a Judgement afterwards retained The case of Villainage within the Statute of Limitation Nota in Elegit Two Inquisitions taken at several Dayes by several Juries upon one Writ naught Nota. All Goods and Chattels bound by the Teste of the Elegit and cannot be sold afterwards Audita Quaerela and Bail put in in the Chancery and held good The Act of E. 6. for Dissolution reaches onely to such that are regular Nota. Nota. Nota. Nota. Deed of Gift for things in Action Supersedeas granted because Capias ad satisfaciendum was not returned Nota. Nota. A Juror who hath appeared cannot be passed by and to swear others Goods cannot be sold upon a Levari facias in a Court Baron without a Custome Sheriff returned but 21. upon a Venire facias and naught Nota. Judgement that it was a good Devise The property is not altered upon the Sheriffs taking of goods upon a Fieri facias but remains in the Defendant Nota. Alien born no Plea in a Writ of Error Nota. Issue cannot be bastarded after Death Nota. Where the principal is omitted cannot be supplied by Writ Nota. King could not grant precedency in publique things Nota. Ancient Demesne tried by Doomesday Book The Venire facias was Album Breve and denied to be amended Lessee at will cannot grant over his Estate Note difference between Tenant at will and sufferance Nota. One committed bailed being no cause expressed Attorneys name put out of the Roll for a mis-demeanour Nota. Nota. Nota. Writ of Entry filed after the Death of the Tenant Ordinary to place and displace in the Church Fraud shall never be intended except apparent and found Nota. High Commission nothing to do with matters of instance for Tithes Nota. Nota Master shall not be corporally punished for his Deputies Offence Nota. Nota. Nota. One at seventeen years old may be an Executor No new notice needs if the Attorney be living If no place of Payment be in a Will must be a Request Nota. Warrant of Attorney filed upon a motion after Writ of Error brought and Error assigned Nota. Warrant of Attorney filed after Writ of Error by Order of Court Attornement of an Infant is good An Attorney ought to have no Priviledge as on Attorney Husband shall pay for his Wives Clothes though bought without his privity A mans Wife or Infant cannot be examined One Bond cannot overthrow the other Exceptions to an Award pretending the Arbitrators had exceeded their Authority but adjudged good Judgement for the Defendant for insufficiency in the Count. Judgement ' for the Defendant upon a by-law The Defendant at his perill ought to make Payment If part of a Condition be to be performed within the Realm and part without ought to be triable here Defendant pleaded six Judgements in Barr and two found to be by fraud and Judgement for the Plaintiff The Sheriff cannot break open the outward Door to do Execution but that being open he may break open any other Exception taken to the Defendants Plea Nota. Debt lies for Money levied by the Sheriff upon a Levari Nota. Nota. Exception taken because the Venire facias was of the Town and not of the Parish but ruled good Creditor administred and is sued ought to plead fully administred generally Debt brought for 60. l. tr be paid at the Return of a Ship from New-found-land to Dartmouth onely 50. l. lent is not Usury Plea made good by Verdict Nota. Judgement against both of the Testators Goods and Damages of him that appeared onely Nota. Nota. If no time of Payment in an Award due upon Demand Though two appear by one Supersedeas yet they may vary in Plea The Imparlance amended after Triall upon the Attorneys Oath Nota. Bene case A Servant hired to serve beyond Sea may have his Action in England Nota. Nota. Outlary in the Executor no Pled Outlary in the Testator in Barr adiudged naught A wrong man of the same name offers to wage his Law Lessor and Lessee for years one Assignes his terme and the other grants his Reversion Grantee of the Reversion shall have Action of Debt against the Assignee Nota. Nota. Default of the Clerk amended and afterwards upon advice made as it was at first A Bill to pay Money upon Demand must lay a special Demand Amendment of Issue Roll by the Imparlance Roll. Estoppell Repleader awarded Money due upon a Mortgage payable to the Heir and not to the Executor Money to be paid fifteen Dayes after return c. he proving his being there Court divided which proof shall be precedent or subsequent Condition that an Vnder-Sheriff shall not intermeddle with Executions of such a value held void Judgement arrested because the whole matter laid was found and part was not actionable Bail discharged upon the principals rendring his Body in another Terme after a case returned Quaere An Award good in part and naught for part and Breach assigned in the good part and held good If the Plaintiff be non-suit yet no Cost upon the Statute of Perjury Nota. Amendment of the Imparlance demed after Error brought A thing out of the Submission awarded and void Nota. Defendant wage his Law upon a Recovery in a Court Baron A man cannot send his Apprentice beyond Sea except he go with him Vpon a nul tiel Record though some Variances yet the Debt and Damages agreeing Judgement for the Plaintiff Bond taken to appear in the Court of Request void Return of the Habeas
Corpus amended Debt upon two Bils and one not due and tried for the Plaintiff and moved in Arrest the Plaintiff released his Damages and had Judgement upon the Bill due Lessee of the Vicars Gleab-land shall pay Tithes Nota. Venire facias de D. or within the Parish of D. or de Parochia good Scire facias upon a Recognisance may issue out into any County Deprivation of a Minister may be given in evidence Best to have Damages severed upon two Contracts Breach for not acknowledging a Fine Nota. Feossment of Land in satisfaction of Debt upon a single Bill held naught A Steward of a Leet within the Statute of E. 6. against buying of Offices One thing in Action cannot be a satisfaction for another thing in Action Vpon a Request and none ready to receive and after a Request Damages shall be paid from the Request Nota. Nota. Nota. An Almoner would have acknowledged satisfaction and doubted Judgement against the Plaintiff for incertainty of his Count. Nota. Judgement for the Plaintiff Nota. Because the first Contract was not usurious the latter shall not No Action of Debt for Soliciting Fees Defendant pleads the Plaintiff was indebted to him and he took Administration and retained his own Debt in his hands Bailiff of a Colledge claims the Liberty of the University but denied to him Special Verdict Nota well Appearance though at another Day the same Terme saves the Bond. Demand necessary for a Nomine penae Costs omitted in the Roll and Error brought and demed to be amended Nota. The Venire facias mis-awarded The Defendant pleads that be was ready to grant and naught No Demand necessary Note this diligently Fully administred no good Plea by an Administrator to a Scire sacias to revive a Judgement had against the Intestate An Executor an Assignee in Law Nota. Nota. Nota. An Executor by wrong shall not by his Plea prejudice a rightfull Executor Condition of non-payment of Rent to re-enter the Rent was behinde but before re-entry accepted the Estate is confirmed by the Acceptance The Defendants name mis-taken in the Venire and a new Triall awarded No costs against an Executor Devise of the profits of the Land it self Debt brought against an Excutor after full age for Goods wasted by the Administrator during his minority Release of all Demands a good Barr in Rent not then due Judgement arrested for improper words without an Anglice The want of a Bill not helped by the Statute of Jeofayles To forbid no Breach The Defendant pleads a Plea by which he pretends the Plaintiff to be barred in another Suit but no Barr. One by his own Election cannot be Executor for part and not for part Tenants in common Severall Debts Debt lies by him to whose use money is delivered Debt upon a Statute of Perjury at a Commission issuing out of Chancery not ly Outlary pleaded in Barr and Nul tiel record pleaded and in the mean time the Outlary reversed Judgement that the Defendant should answer over No Escape lies against a Sherif vpon a Capias upon a Recognisance out of the Chancery Request to make Assurance generally and good Appearance upon warning and for default adjudged naught Action of Debt upon the Statute of E. 6. for Tithes Sufficient to say the Plaintiffe is Proprietor without shewing the Title Misprision of the Clerk amended after Triall Judgement reversed by Writ of error being in the disiunctive The Plaintiffe had no Interest but 〈◊〉 rendring of the Land Lessee at Will cannot determin his will within the year but must answer the whole Rent The Plaintiffe not bound to alleadge a speciall breach when the Defendants Plea continues speciall matter Debt for Flemish Money but demanded by the name of 39. l. English If the Obligor marry the Obligee the Bond gone Judgement obtained by an Administrator and after Administration revoked and party took in Execution and delivered because erroneous To plead an Appearance and not say Prout patet per Recordum naâ—gâ—… Nota. Award void for the incertainty for being the Judgement of one it ought to have plainness and certainty Judgement obtained by President of the Colledge of Phisicians his Successor after his Death and not his Executor shall have Execution Assurance Tithe shall be paid of Wood above twenty years growth if it be not Timber Variance between the Obligation and count shall not be shewed after imparlance Demand of Rent must be at the place of Payment Judgement reversed in an inferior Court for want of this word Dicit Want of an Original after a Verdict no Error but a vitious Original is Error Plea naught for want of a Traverse Nota. Plaintiff in Debt for Tithes need not be named Rector in the Plaint in the upper Bench. Tithes cannot be leased without Deed Judgement reversecâ— for Error in the Judgement If a Suggestion in part need proof and part doth not no Costs Judgement reversed for Error in changing the Defendants Additions Action upon the Statute for Tithes the Statute mistaken yet it being according to divers Presidents ruled good Bill abated for not naming an Infant Executor in the Action although Administration was granted during his minority Action upon the Statute 32 H. 8. of Arrerages of Rents Action lies not upon that Statute for Arrerages of Copy-hold Rents Action of Debt brought upon a Bill for money received to another use An Executor of his own wrong cannot retain Goods in his hand to pay himself Primo deliberat shall not be pleaded without a Traverse If the Plaintiff assign no breach he shall never have a Judgement though he hath a Verdict Rent reserved at Michaelmas or within ten dayes after due at Michaelmas A Judgement reversed by Writ of error notwithstanding a Verdict and the Statute of 18 Eliz. Executor shall not pay Costs upon the statute of 4 Jacobi cap. 3. How a reservation for Rent shall be construed One must not plead in discharge of the Obligation but of the Condition contained in the Obligation A contingent Debt cannot be discharged False Latine shall not overthrow an Obligation A Deed of gift good against him that makes it notwithstanding 13 Eliz. and against his Executors and Administrators Action brought upon an Obligation to stand to the Award of four or two of them Award made by two good Debt Judgement arrested for Nil shewing in what Court the Deed was inrolled Judgement reversed for want of these words in a Tales at Assises nomina Jurat c. By a Release of all demands money to be paid at a day to come may be released before the day If the Defendant confess he hath Assets the Sheriff may return a Devastavit Action of Debt brought against the Sheriff upon an Escape for one taken upon a Capias upon a Recognisance and adjudged that it would not lie Debt brought upon a Lease made to an Infant One may take his Executioâ— either against the principall or Bail at Election An Action of Debt brought upon a Bond
certain Day specified in the Condition The Defendant pleads that the Plaintiff at the Day of Payment accepts of another Bond for the Payment of the said Money in satisfaction of the said 52. l. 11. s. and upon a Demurrer held to be a naughty Plea for one Bond cannot overthrow another LEa versus Pain Hill 14. Jacobi rotulo 953. An Action of Debt brought upon an Obligation with a Condition to perform an Award the Defendant pleads that the Arbitrators made no Award The Plaintiff by way of Replication sets forth an Award that the Arbitrators did arbitrate of all matters untill the Date of the Award which was a Moneth longer then the Submission and so pretends they exceeded their Authority The words were for all causes before the Date of the Award Another Exception was because the Arbitrators awarded that the Defendant should pay the Plaintiff such a Day of April and doth not say what year or next following and the Court held that good enough because the second Day of Payment was made to be such a Day and such a year and it was held good enough for if any new matters did arise between the Submission and Award or c. the Defendant ought to shew it Another Exception was that it was not said that the Award was made between the Parties but it shall be intended to be made between the Parties because the Award was made de super praemissis and therefore it shall be implied that it was made but of such things as they had power to deal in The Court was of opinion that the Award being de super praemissis the Court shall not say but that this was a cause submitted and except it had been discovered by pleading that there was a new cause since the Date of the Award which was made known to the Wardsmen the Court is not to take notice thereof SCot Executor versus Herbert The Plaintiff in his Declaration sayes the Testator in his life-time was possessed of Land for a terme of years and so possessed grants part of his terme to an Estranger reserving Rent and he grants his Estate to the Defendant And that the Testator died possessed of the Reversion of the terme and because the Rent was behinde the Executor brings his Action of Debt for the Rent and the Declaration was held naught for that it did not appear that he that made the first Demise was seised in Fee or in any other Estate by which he could make a Lease NOrris and Trussell Wardens of the Society of Weavers in the Town of Newbury in the County of Berks versus J. Scapes Pasch 14. Jac. rotulo 907. An Action of Debt brought and the Plaintiffs declare that Queen Elizabeth had incorporated them by such a name and given them Power to make by-laws for the better governing their Corporation c. and further shew that they made an Order which was confirmed by the Justices of Assise according to the Statute of 19 H. 7. and for the Breach of such Order brought their Action the Defendant pleaded that he owed them nothing and tried and a Verdict for the Plaintiffs and Hutton Serjeant moved in Arrest of Judgement and took three Exceptions the first because the Constitution was against Law to restrain one to exercise a lawfull Trade The second the Constitution was that the Offender should forfeit such a summ and it did not appear to whom this Forfeiture should go Thirdly the Plaintiff shews in his Count that the Queen by her Letters Patents had appointed A. B. C. to be Wardens for one year and shews not which those that brought the Action were elected which ought to be to intitle them to that Action It was against sense to barr all their own Apprentices it doth not appear how many Wardens should be and they do not intitle them to the Action by the Corporation the Law is altered and Judgement was given for the Defendant BRet versus Averder Mich. 29. 30. Eliz. Debt brought upon an Obligation to perform an Arbitrement the Defendant confesses the Arbitrement but pleads in Barr that the Plaintiff did not require him to make Payment and to that Plea the Plaintiff demurrs and it was adjudged no Plea for the Defendant at his perill ought to make Payment and the Plaiutiff ought not to make a Request HAles versus Bell Trin. 39. Eliz. rotulo 1974. The Plaintiff brought an Action of Dèbt upon an Obligation with a Condition for the Payment of 40. l. within fourteen Dayes next after the return of one Russell into England from the City of Venice and then the Obligation should be void the Defendant pleads in Barr that the said Russell was not at Venice upon which Plea the Plaintiff demurrs and adjudged a naughty Plea for where part is to be done within the Realm and part out of the Realm the Plea ought to be triable within the Realm GArret versus Harrison Executor Trin. 40. Eliz. rotulo 1651. To an Action of Debt upon a Bond brought against him as Executor the Defendant pleads six Judgements in Barr the Plaintiff replies that they were by fraud and covin and the Jury found for the Plaintiff that two of the six were by covin and Williams moved in Arrest of Judgement because the Jury ought to have found all but Glanvile said that if any part of the Plea be insufficient defective or false the Issue shall be found against you for your Plea is one intire thing and he said that the Plaintiff should have taken Issue upon one onely as in an Obligation with diverse things in the Condition Walmsley held that by the Plea the Defendant had confessed implicatively that you have sufficient to satisfie those six Judgements and no more So that if any part be found against you this is Assets and Judgement was given accordingly for the Plaintiff GReen versus Wilcox Executor To an Action upon an Obligation brought against the Defendant as Executor he pleads that the Testator was obliged to A. in 20. l. which remained due to him at his Death and that the said A. recorded against him in the Common Pleas and averres that it was a true Debt and the persons and matters to be the same and that he had no Assetts beyond that and the Plaintiff replies that the said Recovery was had by fraud and covin between them to defraud him of his Debt to which Plea the Defendant demurrs specially because he had in his Plea averred it was a true and just Debt so that it could not be by covin Trin. 44. Eliz. It was adjudged for Law by the whole Court that if a Fieri facias be directed and delivered to the Sheriff he may not break the outer Door of the House and enter and do Execution but if the outer Door be open then he may enter by that and then he may and ought to break the Door of an Entry or Chamber which is locked and break
Fawden an Attorney of the Common Pleas and he pleads in Barr an Outlary against the Administrator and adjudged no Plea MIch 4. Ed. 4. rotulo 144. An Action of Debt was brought against J. R. de W. in Com. L. Chapman the Defendant appeared by his Attorney and offered to wage his Law and essoyned and at that Day the Plaintiff appeared and the Defendant being solemnly required one J. R. came to answer the Plaintiff as Defendant in that Action in his proper person and offered to wage his Law the Plaintiff said that J. R. now appearing to wage his Law ought not to be admitted because the said J. R. is not that person which the Plaintiff prosecutes because this I. R. appearing is I. R. de W. in Com. L. Jun. Chapman and he who the Plaintiff prosecutes is I. R. de W. in Com. L. Sen. Chapman both of them at the purchasing the Plaintiffs Writ living at W. and that he agreed with the Defendant so to do therefore because I. R. de c. hath not appeared to wage his Law prayes Judgement the Defendant confesses such matter and sayes that he beleiving that the Writ was prosecuted against him appeared by his Attorney and offered to wage his Law and prayes to be discharged of the Debt and the other I. R. being exacted appeared not and the Court would advise but no Judgement for the Plaintiff HIll 26. Eliz. rotulo 420. The Lessor makes a Lease by Indenture for years and the Lessee grants over his whole Terme and the Lessor grants over the Reversion and it was adjudged that the Grantee of the Reversion should have an Action of Debt for the Arrears of Rent against the Assignee of the terme and not against the first Lessee HIll 43. Eliz. Pasch 41. Eliz. rotulo 425. An Action of Debt brought against an Executor in the Debet detinet for Rent due in the time of the Executor upon a Lease made to the Testator upon a Judgement given in the upper Bench and that Judgement was reversed in the Exchequer because it was not in the Detinet alone but afterwards in the upper Bench. Int. dominum Rich. Frank Administrator for Arrears due after the Death of the Intestate it was adjudged good in the Debet detinet and also in the Common Pleas Trin. 11. Jac. rotulo 2013. MIch 30. 31. Eliz. rotulo 907. An Action of Debt brought to which the Defendant pleads an Outlary against the Plaintiff in its force the Plaintiff replies the general Pardon granted by Parliament the Defendant demurrs and Judgement that he should answer over MIch 40. 41. Eliz. Ralph Rogers brought an Action of Debt upon an Obligation of 400. l. and Judgement was entred by the Clerk upon a Nichil dic that the said Roger should recover c. and for that Default the Defendant brought his Writ of Error to reverse the Judgement given for Ralph and when the Record was certified the Judges of the then Kings Bench would not proceed And afterwards the Judges of the Common Pleas upon a motion and before another Writ of Error brought amended the Mistake of the Clerk And Justice Walmsley would have committed Keale the Clerk to the Fleet for his carelesness but afterwards the Amendment was withdrawn by the Court and upon further advice the Roll made as it was before An Action of Debt was brought upon a single Bill for Payment of Money upon Demand and the Plaintiff declares generally that he often had requested c. and Serjeant Harris demurres to the Declaration and the opinion of the Court was that he ought to plead yet if the Defendant had demanded Oyer of the Bill and upon that have demurred it had been a good Demurrer because one special Demand was in the Bill and no special Demand alleadged in the Count. MIch 3. Iac. Burnell versus Bowes Action of Debt brought upon a Bond and the Plaintiff in the Imparlance Roll had counted upon a Bond made the tenth of March and an Imparlance thereupon untill the next Terme and in the next Terme he declared as of a Bond made the tenth of May and the Defendant pleaded per Dures and it was entred of Record and the next Terme after Entry thereof the Plaintiff moved that that Mistake might be amended and at first it was denied to be amended because the Defendant had pleaded to it and by that Amendment his Plea should be altered as if he had pleaded that it was not his Deed and the cause of his pleading that Plea was the the Mistake and if that Mistake should be amended he would be trised and overthrown and upon the first motion it was denied to be amended but afterwards granted to be amended by the whole Court for the Imparlance was entred Hillar first of James and the Issue was Pasch second of James but the Defendant was admitted to plead a new at his pleasure MIch 3. Jac. rotulo 2575. Fitch versus Bissie An Action of Debt brought upon an Obligation with a Condition to pay Money yearly according to the forme and effect of the Indenture made between the Plaintiff and Defendant the Defendant pleads that there was not any such Indenture made between the Plaintiff and Defendant as is in the Condition supposed and the Plaintiff demurrs upon that Plea for that the Defendant is estopped to plead that Plea KIng and his Wife Executrix of J. Wright Plaintiffs brought a Scire facias after the said Executrix came to full Age against Death and his Wife Administratrix of W. D. to have Execution of a Judgement had by J. D. and H. E. Administrators during the minority of the Executrix upon a Bond entred into to the Testator and whether a Scire facias lay by the Executrix or no was the Question and by the better opinion of the Court it did not lie MAyor and Burgesses of Linn Regis in Norfolk Mich. 10. Jac. rotulo 2413. brought an Action of Debt upon a Bond against one Pain and it was Ad respondendum Majori Burgensibus de Linn Regis in Comitatu Norfolciae Pain pleads that it was not his Deed and a special Verdict was found that the Mayor and Burgesses were incorporated by the name of Majores Burgenses Burgi de Linn non per aliud And whether the omission of this word Burgi should barr the Plaintiffs was the Question and Judgement was given by Cook Warburton and Nichols for the Plaintiff for Cook said that if the essential part of the Corporation was named it was sufficient and in this case the Mayor and Burgesses was one essential part and Linn Regis is another essential part and those two were duly expressed and sufficient to maintain the Action and Cook said that those words Et non per aliud shall be intended to be Non per aliud sensum non literae and of the same opinion were the other Judges there NIchols versus Grimwin Mich.
and determined for he prosecuted the Suit in anothers Right and is but a Minister of the Ordinary and then when the Ground of the Suit is over-thrown to wit his Commission he hath no Authority to proceed further and the Execution issued without Warrant And the like Law upon a Judgement had upon an Administrator the second Administrator shall not have Execution by it for he hath no privity to the Record which mark ANdrews versus Robbins Trin. 4. Jacobi The Plaintiff brought Debt upon an Obligation made to him as Sheriff with a Condition that the Defendant should appear and Crook said that the Defendant had pleaded his Appearance and had omitted to say as it appears by the Court and it was held a grosse Fault but the Record being perused it appeared to be otherwise for the Case was that the Defendant was obliged to make an Obligation to appear in the Kings Bench at a day prefixed in the Writ and that the Defendant pleaded there was no day prefixed in the writ for his Appearance and Crook moved that it was no Plea for the Defendant was estopped to which the Court agreed that he was estopped and Williams said that if a man be bound to pay a hundred pounds that I. S. owes to him he cannot plead that I. S. doth not owe him a hundred pounds and Tanfield said if it were to pay all sums that I. S. owed him he isconcluded so it is held 3 Eliz. Dyer And the Court commanded Judgement to be entred for the Plaintif if no cause shewed tothe contrary such a day JAckson versus Kirton Trin. 4. Jacobi In Common Pleas an Action of Debt brought upon an Obligation the Condition was that if A. would render himself to an Arrest in such a place c. The Defendant pleads that by Priviledge of Parliament those of the Parliament and their necessary Servants ought not to be arrested by the space of forty Dayes before the Parliament nor sitting the Parliament nor forty Dayes after and sets forth that A. was a Servant to such a man of the Parliament at such a time so that he could not render himself to be arrested to which the Plaintiff demurrs and the opinion of the Court was for the Plaintiff for A. might render himself and let it be at their perill if they will arrest him MArkham versus Jerux Hill 4. Jac. Action of Debt brought upon a Bond with a Condition to stand to the Award Arbitrement c. of Master Porley of Grays Inn about the Title of one Copy-hold Tenement M. P. awarded c. that the Defendant should pay to the Plaintiff six pounds upon the 21 May 3 Jac. at such a place to wit in the Church Porch of C. and further awards that the Plaintiff by his Deed should release to the Defendant his whole Right c. upon the said 〈◊〉 Day of May at the same place upon the payment of the Money and in another Clause of the Award he awarded that the Plaintiff should make further Assurance to the Defendant for the extinguishing of his Title as should be advised c. And Yelverton moved that this Arbitrement was void and is in a manner no Award for it is repugnant and insensible for although it be certain at what Day the Defendant should pay the six pounds yet it doth not appear when nor upon what Day the Plaintiff should release to the Defendant for there is no such first Day of May in the whole Award and it is not bound or tied to any year of the King so that it is altogether incertain and although it may be collected that the Arbitrator did intend the 21. Day of May because it is appointed to be made upon the payment of the six pounds which was the 21. May yet it is not expressed but onely by way of inference and implication and it was objected that admit the Award to be void in that part yet it is good in the residue which is to be performed by the Plaintiff to wit the making of better assurance to which Yelverton answered that all the Clauses in one Award are material and the Clause of further assurance depends upon the repugnant Clause of the Release to be made for the Award appoints that the Release is to be made upon the said first Day of May whereas no such Day in the whole Award shall be the first assurance and the assurances which were to be made by the following Clause were in the intention of the Arbitrator to be for the strengthning of the first Release which was granted and the Court said there was much difference between Wills and Deeds and between Arbitrements for Deeds c. shall be construed according to the intent of the parties and upon the words to be collected out of the Deeds but an Award is of the nature of a Judgement and Sentence in which ought to be plainnesse and no collection of the intent and meaning of the Arbitrators for how it ought to be his Judgement and not the Judgement of another upon the words of the Arbitrator and Tanfeild said it had been adjudged that where the Arbitrator did award that one of the parties should become bound to the other in the summ of and no summ in certain but a space left for the summ that it was void and if an Arbitrement be void in one Clause although it be good in all Clauses yet it is in Law no Award for a Judgement ought to be plain certain and perfect in all things but if the Arbitrators award that one of the parties and J. S. an Estranger shall do such a thing that is good as to the party who is within the Submission and void onely to I. S. the Estranger 19 E. 4. ATkins versus Gardiner Pasch 5. Jac. The Plaintiff being President of the Colledge of Phisicians in London brought an Action of Debt against the Defendant for practising Phisick upon the Charter made to them by H. 8. that none should practise Phisick in London nor within seven Miles thereof except such as were authorised by them and gives them Authority to impose Fines upon such as shall practise Phisick which Charter was confirmed by Act of Parliament in 14 H. 8. and he obtained Judgement upon the Statute to recover a summ for himself and the Colledge and before Execution the President died and whether the Successor should have Execution and 8 E. 1. was cited and divers other Books to that purpose STamford versus Cooks Pasch 5. Jacobi An Action of Debt brought upon an Obligation with a Condition that the Defendant should seal such Assurances as should be devised by the Plaintiff and that the Assurance should be of Copy-hold Land and the Plaintiff devised that the Defendant should seal a Letter of Attorney made to one to surrender the Copy-hold for him and also seal one Bond for the injoying thereof and the Plaintiff offered these Writings to the Defendant
to the breach if it had been assigned yet the Court ought to be satisfied that the Plaintiffe had good cause of Action to recover otherwise they should not give Judgement and although a Verdict is given for the Plaintiff yet this imperfection in the Replication is matter of substance and is not helped by the Statute by the opinion of the whole Court except Justice Williams BArwick versus Foster Mich. 7 Jacobi Action of Debt brought for Rent the cause was thus the Plaintiff leased certain Lands to the Defendant at Mich. 1 Jacobi for five years yielding and paying Rent at our Lady Day and Mich. yearly or within ten dayes after and for rent behind at the last Mich. the Plaintiff declares as for Rent due at the Feast of Saint Michael and prima facie it seemed to the whole Court but Crook that the Action would not ly but that the Rent for the last quarter was gone for it was not due at Michaelmas as the Plaintiff had declared for his own shewing it is payable and reserved at Michaelmas or within ten dayes after although the Lessee might pay it at Michaelmas Day yet it is not any Debt which lies in demand by any Action untill the ten dayes be passed and the reservation being the Lessors Act it shall be taken most strongly against himself and although the end of the Term is at Michaelmas before the ten dayes untill which time the Rent is not due and because at that time the Term is ended the Lessor shall loose his Rent as if a Lessor die before Michaelmas Day the Executor shall not have the Rent but the Heir by discent as incident to the Reversion and if the Lessee should pay the Rent to the Lessor at Michaelmas day and the Lessor should dye before the tenth Day his Heir being a Ward to the King the King shall have it again for of Right it ought not to be paid untill the tenth day according to the 44 E. 3. but this Case being moved again in Hillary Term Fleming Fennor and Yelverton changed their opinion and held that the Lessor should have the Rent for it was reserved yearly and the ten dayes shall be expounded to give liberty to the Lessee within the Term for his ease to protract the payment but because the ten dayes after the last Michaelmas are out of the Term rather then the Lessor shall loose his Rent yearly the Law rejects the last ten dayes MOlineux versus Molineux Hill 7 Jacobi An Action of Debt brought against Mo. upon an Obligation as Heir to his father the Defendant pleads that he hath nothing by discent but twenty Acres in D. in such a County the Plaintiff replies that the Defendant had more Land by discent in S. to wit so many Acres and upon this they are at Issue and found for the Defendant that he had nothing by discent in S. by reason of which the Plaintiff could recover and had his Judgement to have Execution of the twenty Acres in D. upon which Judgement in the Common Pleas the Defendant brought his Writ of Error and assigned for Error a discontinuance in the Record of the Plea from Easter Term to Michaelmas Term after and whether this were helped by the Statute of 18 Eliz. because it was after a Verdict was the question and adjudged to be out of the Statute and that it was Error for the Judgement was not grounded upon the Verdict but onely upon the confession of the Defendant of Assetts and the Verdict was nothing to the purpose but to make the Defendants confession more strong and therefore the Statute of the 18 of Eliz. is to be intended when the triall by Verdict is the means and cause of the Judgement which mark and therefore the Judgement was reversed the Law seems to be the same if the Plainiiff brings an Action of Debt for forty pounds and declares for twenty pounds upon a Bill and twenty pounds upon a non tenet and the Defendant confesses the Action as to the money borrowed and they are at issue as to the money demanded by the Bill which Passes also for the Plaintif by reason wherof he hath Judgement to recover the forty pounds demanded and the Damages assessed by the Jurors and Costs intire in which Case if there be a discontinuance upon the Roll it seems that all shall be reversed notwithstanding the verdict for the verdict is not the onely cause of the Judgement but the Confession also and the Costs assessed intirely for both but yet inquire of this It was adjudged by the whole Court that in those Cases where an Executor is Plaintiff touching things concerning the Testament and is non-suited or the verdict passes against him that he shall not pay Costs upon the new Statute of 4 Jac. for the Statute ought to have a reasonable intendment and it cannot be presumed to be any fault in the Executor who complains because he cannot have perfect notice of what his Testator did and so it was resolved also by all the Judges of the Common Pleas. GOodier versus Jounce Trin. 8 Jacobi Jounce recovered in the common Pleas a hundred and thirty pounds against Goodier in Crastino Animar 6 Jacobi and the eight and twentieth of November the same Term being the last Day of the Term the Plaintiff proved an Elegit against Goodier to the Sheriffs of London where the Action was laid and to the County Palatine of Lancaster returnable Crastino Purificationis after which was granted by the Court and by the Elegit to the County Palatine it appeared that it was grounded upon a Testat returned by the Sheriffs of London that Goodier had nothing in London where in truth they never made such a Return and upon that Elegit by a Jury impannelled before the Sheriff of Lancaster a Lease of Tithes was extended for fifty nine years then to come at the value of a hundred pounds which the Sheriff delivered to J. the Plaintiff as a Chattell of Goodiers for a hundred pounds and returned it and that Goodier had no more Goods c. and thereupon Goodier brought a Writ of Error in the upper Bench and assigned for Error that no Return was made by the Shetiffs of London nor filed in the common Pleas as was supposed in the Elegit and it was adjudged Error for although the Plaintiff might have an Elegit as he desired in the common Pleas immediately both into London and Lancashire but seeing he waived the benefit thereof and grounded his Execution upon a Testatum which was false it was Error in the Execution for as it appears 18 H. 6. 27. and 2 H. 6. 9. that a Testatum is grounded upon a former Return filed that the party had nothing in the County where the Action was brought and because it appeared upon Record that the prayer of the Elegits was made the eight and twentieth of November the last day of the Term and by the Testatum it is supposed
a possibility only which cannot be granted surrendred or released and yet he agreed that if Lessee for life grant or demise the land all his Estate passeth without making of any particuler mention of it as it is agreed in 10. Eliz. Dyer And for that when the Lessee hath devised the Lands to his Father for his life that which remaines is only a possibility for it doth not appeare for what yeares the Sister shall have it and for that meerely uncertaine 7. Eliz. Dyer 244. The King Ed. 6. appropriated a Church to the Bishop to take effect after the death of the present Incumbent the Bishop after that makes a Lease for yeares to begin after the death of the Incumbent and void for the uncertainty for the Bishop hath no perfit Estate but future Interest which is meerely impossibility and with that agreed Locrofts Case in the Rector of Cheddingtons Case 1. Coke where Lessee for yeares makes assignement of so many of the yeares as shall be to come at the time of his death and void for the uncertainty insomuch that it is meerely possibility for that which may be granted or surrendred ought to be Interesse Termini at least And he supposed it could not be released insomuch that he to whom the release is made hath all the Tearme if he lived so long and so he concluded and praied Judgement for the Plaintiff Harris Serjeant for the Defendant argued that the first devisee had two Titles one as Executor and another as a Legatee and before entry and after that he had entred also the Law doth adjudge him in as a Legatee and before that he enter he may that grant over notwithstanding that he hath not determined his Election for the Law vests the property and possession of that in him before any entry but to make an election there ought to be some open Act done as it is agreed in Welden Eltingtons Case where that the first devisee which was Executor also made expresse claime to have the Tearm as Legatee and not as Executor and so vested the remainder also see Com. 519. b. And so in Paramore and Yardlies Case Lessee for years devises his Tearme to his Executor during his life to educate his Issues the which the Executor doth accordingly and this open act was resolved to be a good election and in Mannings case 8 Coke 94. b. The Executor which hath the 1. Estate devised to him saith that he to whom the Remainder was limited shall have it after his Death and this resolved to be a good Execution and election and it is there resolved that such Election made by the particular Devisee is a good Execution for him in remainder but here is not this Election to have this as Legatee nor Executor for there is not any overt Act made by which this may be done Secondly he conceived that this is no remainder but Executory devise as it is agreed in Mannings Case and that this may be done by Devise which cannot be done by the party by act Executed and for that he conceived that there is no possibility but an Estate Executed and vested in him which is Executor though there be no election made nor Execution of the Legacy and admitting that it is but a possibility yet he conceived that it is Propinqua possibilitas insomuch that the Tearme is longer then it may be intended that any man might live insomuch that Adam lived but 950. yeares and this is five thousand yeares which is longer then any man in the world ever lived and he said that it is agreed in Fullwoods Case that possibility may be released to a possession and with this agreed the opinion of Strange in the 9 H. 6. 64. And so warranty may be released which is meerly in contingency as it is agreed in Littleton and power of revocation may be extinct by release of him that hath the possession of the Land and so he concluded and prayed Judgment for the Defendant Nicholls Serjeant for the Plaintiff conceived that the Remainder is in Esse and not determined by the Release And first he conceived that the Remainder was executed insomuch that the Release was made at the Request of the Father which was the first Devisee for this shewes his assent and implies that he took notice of his Remainder and assented to it and he sayd it was adjudged in Doctor Lawrences Case that the speaking of these words by the Executors that is that they were glad of the Devise was a good Execution and assent of the Legacy Secondly He conceived that it is only possibility and for that cannot be released or granted and he saith that the Law hath great respect of possibilities that Estates may revert and for that it is adjudged in the 13 of Richard 2. Dower 55. If Tenant for life grants his Estate to him in remainder in tayl for his owne life the Tenant enters takes a Wife and dies she shall not be Indowed but the Tenant for life shall have it againe and it shall be as it had been let to a stranger and to this purpose also he cited 18. Ed. 3. 8. Counter-Plea of voucher 8. And it was adjudged in Middletons Case 5. Coke 28. a. that an Executor before probate of the Will may release a Debt but not an Administrator before Administration granted see Com. 277 278. Fox and Greisbrookes Case and in 6. Ed. 3. Lessee for anothers life rendring Rent the Rent was behind and the Lessor releases to the Lessee all Debts he For whose life dies and there the Release determines and discharges the arrerages for it is a duty and Debitum is Latine as well for Debt as for duty also release bars the Lord and Writ of deceit for reverser of a Fine levied of land in ancient Demesne as it is 7. H. 4 and yet Littleton saith that release of a futrue thing shall not be a barr and for that if Conusee of Statute Merchant release all his Right in the land yet he may extend the Statute 15. assis And so if a mad man release and after come to his wits and dies Quere if the Heire may have a Writ of non compos mentis And he said that it was adjudged in the 25. of Eliz. If an Infant levie a Fine and after he levies another Fine this shall be a Barr in a Writ of error for the reversing of the first otherwise of a release And here to the principall case to a release made by the Son in the life time of his Father without warranty And so upon all these cases he concluded and prayed Judgment for the Plaintiff Shirley Serjeant for the Defendant argued that the acceptance of Release by the first Devisee shall not be execution of the Devise as it was adjudged in Barramores and Yardleys case by the Education of the Issue or a Devise upon condition to pay money and the Executor pays it this is a good execution
if a Copy-holder be of twenty Acres and the Lord grants Rent out of those twenty Acres in the tenure and occupation of the sayd Copy-holder and name him There if this Copy hold Escheat and be granted againe the Copy-holder shall hold it charged for this is now charged by expresse words Trinity 8. Jacobi 1610. In the Kings Bench. Goodyer and Ince GOodyer was Plaintiff in a Writ of Error against Ince and the Case was this Ince brought an Action of Debt upon an Obligation in the Common Bench against Goodyer and had Judgment to recover and by his execution prayed an Elegit to the Sheriff of London and another to the Sheriff of Lancaster and his request was granted and entred upon the Roll after which went out an Elegit to the Sheriff of Lancaster upon a Testatum supposing that an Elegit issued out to the Sheriff of London which returned Nulla bona and Quod Testatum sit c. That the Defendant hath c. in your County c. upon which Elegit upon this Testatum the Sheriff of Lancaster extended a forme of the Defendants in a grosse sum of a hundred pounds and delivered this to the party himselfe which sold that to another and now the Defendants brought a Writ of Error and assigned for Error that this Elegit issued upon a Testatum where no Writ of Elegit was directed to the Sheriff of London and so this Writ issued upon a false supposall and upon that two points were moved in the Case First As this Case is if this were Error in the Execution or not Secondly Admit that it were Error if the Plaintiff shall be restored to the tearme againe or if to the value in Money and it was moved by Davenport of Grayes Inne that this was no Error and to that he took this difference That true it is when a man brings an Action of Debt in London and hath Judgment that without request of the Plaintiff he is to have his Elegit to the Sheriffs of London where originally the Action was brought and in such Case he cannot have Elegit to the Sheriff of another County without surmise made upon the returne of the first Elegit and the surmise ought to be true or otherwise it is Error but where upon the request the Elegit is granted to both Counties at the first and so entred upon the Roll It seems to him that insomuch that he may have both together that if the surmise be false that this is but a fault of the Clarke which shall be amended and shall be no Error and to that he cyted the Case of 44 Edw. 3. 10. Where an Elegit issued upon a Recognizance of a hundred Markes and the Writ of Extent was a hundred pounds and the Sheriff extended accordingly of the Land of the Defendant and he came and shewed this to the Court and praied that the Writ should abate and a new Writ to the Sheriff that he might have restitution of his Tearme and Thorp said this is but a misprison of the Clark and the Roll is good and he shall have the Land but till the hundred markes are Levied and after this you shall have restitution of the Land which case proves as he conceives that if the Roll warrant a writ in one manner and the Clark makes it in another manner that this shall not be Error and so in this case the Roll warrants an Elegit originally to the Sheriff of Lancaster and though that this is made upon a Testatum this shall not be Error because warranted by the Roll And to the second point he would not speake for if that were no Error the second point doth not come in question Hillary 7. Jacobi 1609. in the Kings Bench. Marsam against Hunter IN Trespasse the case was this Copy-holder of a Mannor within which Mannor the custome was that the Copy-holders should have Common in the wast of the Lord The Lord by Deed confirmes to a Copy-holder to have to him and his Heires with the appurtenances and the point was insomuch that his Copy-hold was now distroied whether he shall have his Common or not And Davyes of Linclones Inne argued the Common is extinct and his reason was that this Common was in respect of his Tenure and the Tenure is distroid Ergo the Common and he cited the case of 5 Ed. 4. fol. ult Where the office of the King of Herraulds was granted to Garter with the Fees and profits Ab Antiquo and also ten pound for the office and there it is resolved if the office be determined the Annuity is determined also and the case in 7. Ed. 4. 22. b. Where an Annuity was granted to John Clark of the Crown and for Tearme of life and after he was discharged of the office and the oppinion of the Justices then was that the annuity was determined and in 19. Ed. 3. Assis 83. 12 Assis 22. A man gives Land to his Daughter and I. S. within the years of marrying in frank-marriage the Husband sues Divorce the marriage being dissolved the Wife from whom the Land first moved shall have the Land againe so in the principall case insomuch that this common was in respect of Tenure the Tenure being distroied the common is gone and this was all his argument and he prayed Judgement for the Plaintiff and another day Brautingham of Grayes Inne seemed that the common remaines for three reasons First of the nature of a prescription and to that there are three manner of prescriptions First personall prescription and in that Inhabitants may prescribe as for a way or matter of ease as it is said in 7. Ed. 4. 15. Ed. 4. and 18. Ed. 4. and 6. Coke Gatwoods case Secondly reall prescription and this is Inherent to the Estate and this is where a man prescribeth that he and all those whose Estate he hath c. Thirdly locall prescriptions an that is where a man prescribes to have a thing appendant or appurtenant to his Mannor and this is so fixed to the Land that whether soever the Land goes the prescription is concommitant unto it and it seemes to him that this common is annexed to the Land by prescription and so locall and cannot be seperated but alwaies shall go with the Land into who soever hands that comes but Dixit non Probant And for this he supposed that the custome of Copy-hold is that the Copy-hold shall discend to the youngest Son if the Copy holder purchase the Free-hold and the Fee-simple of the Copy-hold so that this is made Free-hold this shall discend to the youngest Son so if a Copy-holder by custome is discharged of payment of Tythes in kind so the office of the master of the Rolles hath many liberties pertaining to it and this is granted but Durante placito yet if the King grant that in Fee as he may yet he shall have all the Fees and Priviledges annexed to that and so it seemes to him that
of the Lessor But he agreed the case of Littleton that an Assignee of an Estate may perform a condition in preservation of an Estate otherwise of an Assignee of a Reversion in destruction of an Estate so at the Common Law it is clear that the Feoffee cannot perform the condition and by him it is cleerly out of the Statute of 32 H. 8. for this Statute doth not extend to a collaterall condition as it appears by Spencers case 5. Coke and so hath been many times after this adjudged and this is a collaterall condition Ergo c. And so concluded and prayed Judgment for the Defendant Nicholls Serjeant to the contrary and that this Disseisin hath not suspended the condition but that he may pay the Money and make the Estate to cease notwithstanding the Disseisin for-that that the condition is collaterall like to the 20 of Ed. 4. and 20 H. 7. That where a Feoffee upon a collaterall condition takes back an Estate for years yet this shall not suspend the condition but it may be performed or broken notwithstanding the Lease for that that it is collaterall so in our case for suppose that the condition had been if he marry Mistris Holbeam that then his Estate shall cease and as well it shall be upon the Tender of the Money here and he said that this case was late in the Common Bench. This feoffment was made to the use of the Feoffor for life Remainder to another for life the Remainder to the third in tayl the Remainder to the right Heirs of the Feoffor in fee with power of Revocation and after the Feoffor lets for years and during the Tearm he revokes the mesne Remainders and it seems to the Justices that well he may for that that the Lease for years goes only out of the Estate for life as he sayd and for that the power of Revocation as to the Mesne Remainders was not suspended Quere of the truth of this case in the common Bench for perchance it is not truly collected but so entred and so he prayed Judgment for the Plaintiff Flemming cheife Justice sayd that the point of the principall case would be if by the wrong of the Lessor the Estate of the Lessee shall be prevented to accrue then he might perform the condition to determine the ancient Estate that is the Lease for years and it is adjourned Pasch 8. Jacobi 1610. In the Kings Bench. Earle of Shrewsbury against the Earle of Rutland IN a Writ of Errour the Earle of Rutland brought an Assise of Novel Disseisin against the Earle of Shrewsbury and four others and the Plaint was of the office of the keeping of the Park of Clepson and of the vailes and fees of the sayd Parke and of the Herbage and Paunage of the same and the Demandant made his title and alledged that the Queen Eliz. was seised of Clepsam Park in fee in right of her Crown and that she being so seised by her Letters Patents under the great Seal granted unto one Markham the keeping of the Park of Clepson with the vailes and fees and the Herbage and Paunage of the same Park for his life after the Queen Eliz. reciting the Grant made to Markham and that Markham was alive gave and granted by her Letters Patents to the Earl of Rutland the Office of the keeping of the sayd Clepson Parke with the Fees and Wages to that appertaining to have and to hold to him for his life after the death of Markham or after the surrender or forfeiture of his Letters Patents and further granted the Herbage and Paunage to the sayd Earle of Rutland for his life and doth not say when this shall begin after which the Queen Eliz. died and the Eee-simple discended to our Lord the King which-now is as lawfull Heir to the Crown of England which granted that to the Earle of Shrewsbury after which Markham dyed and the Earle of Rutland entered and was seised till the Earle of Shewsbury with four others entered upon him and dissersed him and to that the Tenants alledged no wrong no disseisin and when the Assise was to be taken in the Country the Array was challenged by the Tenants for that that one of the Tenants in the Assise had an Action of Trespasse hanging against the Sheriff and this challenge was not allowed and the Assise being perused at large for the Herbage and Paunage they found that the said Queen Eliz. was seised of Clepson Park as aforesaid and by her Letters Patents as afore is rehearsed granted the Keeping of this to Markham for his life and further by the same Letters Patents granted to him the Fees and Wages to that belonging and further granted by Letters Patents and doth not say Easdem to him the Herbage and Paunage of the sayd Park and that the Queen after the reciting the Grant made to Markham and that Markham was alive granted to the Earle of Rutland the keeping of the sayd Park and vailes and fees to have and to hold after the death surrender or forfeiture of the Letters Patents of Markham for his life And further by the sayd Letters Patents shee granted the Herbage and Paunage of the same Park to him for his life as more fully appears by the Letters Patents and it was not expressed as to the Herbage and Paunage when that began and they found the death of Markham and that the Earle of Rutland put two Horses into the sayd Park to take seisin of the sayd Herbage and Paunage and they found further the grant of the King to the Earle of Shrewsbury of the fee-simple and of that prayed the advise of the Court and to the keeping of the Park they found the seisin and disseisin of that and of the fees and wages to the Dammages c. And this being adjourned into the Common Bench was remanded into the Country and there Judgment was given for all for the Demandant and after this it came into the Kings Bench by Writ of errour and the Errours assigned by the councell of the Tenants and argued at the Barr were foure The first was that the Earle of Rutland himself between the verdict and the Judgment hunted in the Park and kild a Buck and took a shoulder of that for his fee and so he hath abated his Assise and so the Judgment was given upon a Writ abated and therefore they cannot plead that in abatement insomuch that it was mesne betwixt the Judgment and the verdict they assigned that for errour The second was because the principall challenge was not allowed where that ought to have beene allowed and the challenge was that one of the Tenants had an Action or Trespasse hanging against the Sheriff before the Assise The third was Because the Jury have found the Letters Patents made to Markham and that the Queen granted to him by her Letters Patents the custody of the Parke of Clepson in Clepson And further by the same Letters Patents granted the vailes
open any Chest which is locked and take the Goods in that in Execution and if he doth it not an Action of Case will lie against him In Debt if it be demanded by Original the Process is Summons Attachment and Distress and for Default of sufficiency upon a Nichil returned Process to the Outlary if the Summons or Attachment be returned an Essoyn lies And Wager of Law lies if the Count be upon a simple Contract And if the Parties be living which made the Contract or Debt against an Heir the Writ shall be brought in the Debet but when it is brought against an Executor or Administrator or of Chattels it shall be in the Detinet tantum The Judgement in Debt where the Demand is in the Debet detinet is to recover the Debt Damages and Costs of Suit and the Defendant in misericordia but if the Defendant denies his Deed then a Capias for his Fine issues out And if the Original be in the Detinet for Chattels then the Judgement is to recover the thing in Demand or the value thereof and Costs and Damages and the Process of Execution is a Distress to deliver the Chattels or the value and Damages And if the cause of Action be against Executors or Administrators the Judgement is to recover the Debt and Damages of the Testators Goods if the Executor hath so much in his hands and if he hath not then the Damages of the Executors or Administrators proper Goods And if the Sheriff upon a Scire facias return a Devastavit then a Fieri facias or Elegit may be sued out to levy the Debt and Damages of the Executors or Administrators proper Goods And if the Executor plead that he never was Executor and it is found against him that he hath administred but one Penny the Judgement shall be to recover the Debt and Damages of the Executors own Goods Debt brought upon a Record the Execution shall be brought where the Record remaines MIch 9. Jac. rotulo 2304. Throckmorton Administrator versus Hobby The Aministrator releases and afterwards the Administration is revoked and declared by Sentence to be void and null and then the Release is void TRin. 9. Jac. rotulo 917. Brookesby Vaux versus M. Tresham Executor of the Testament of T. T. and Exception was taken to the Defendants pleading because the Defendant pleads divers Statutes to divers persons and the Plaintiff shews that some were by fraud and that others were for performance of Covenants that were not broken and for other Statutes that they were satisfied and the Defendant in pleading a Statute by three sayes two of them did not pay and doth not say that the three nor any of them have not paid In pleading of a Statute it must be generally pleaded that it is a true Debt And my Lord Cook held that a man without a Defeasance may plead that the Statute was acknowledged for Payment of a lesser summ and it was held that if the Count be good and the Plea naught and Replication naught if it appears that the Plaintiff had good cause of Action the Plaintiff shall have Judgement And Warburton said that one may plead generally that the Statute was acknowledged by fraud without shewing the special matter SPeak versus Richards The Plaintiff brought an Action of Debt for Money levied by the Sheriff upon a Levari facias and not paid to the Plaintiff upon the Sheriffs Return upon the Levari issued out of the Chancery and that it would well lie But note the Plaintiff had concluded his Demurrer ill for he demurring to the Defendants Plea which was grounded upon a Release should have demanded Judgement if the Defendant should be admitted to plead a Release which was made after the Sheriff had made his Return TRin. 15. Jac. rotulo 1630. Parson versus Middleton Action of Debt brought to be tried in Durham and the Record sent to the Chancellor of Durham because the Bishops Sea was empty and before the Day given by the Judges a Bishop was elected and he sent the Record and not the Chancellor MIch 15. Jac. rotulo 2118. Maddock versus Young The Plantiff brought an Action of Debt for an Escape against the Sheriff upon a Capias utlegat after Judgement the Defendant pleads that there was no such Record of the Recovery of the Debt and Damages to which Plea the Plaintiff demurrs pretending he had not directly and plainly answered the Declaration but Judgement was given for the Defendant Where a Capias is not the Process a Capias ad satisfaciendum is not the Execution and no Capias lies against a Countess or Baroness and at Common Law no Capias ad satisfaciendum would lie but onely where the Action was Vi armis but onely a Levari facias MIch 14. Jac. rotulo 3140. Bawkey versus Isted An Action of Debt brought upon the Statute of E. 6. for not setting forth of Tithes of Land lying within the Parish of Horsted parva the Defendant pleads Nil debet per patriam and after Triall and a Verdict Exception was taken to the Venire facias because the Venire facias was of Horsted parva and not of the Parish of Horsted parva but the Court were of opinion that it might be either of the Town or Parish of Horsted parva and Judgement was given for the Plaintiff because both the Town and Parish were named in the Record An Action of Debt brought against an Administrator who pleads that the Intestate was indebted to him and that he had fully administred and that he had no Goods or Chattels which were the Intestates beyond Goods and Chattels to the value of 10. l. which the Administrator retains towards satisfaction of the said Debt to him due the Court were of opinion that the Administrator ought to plead generally fully administred else the Debtor should be prejudiced in taking Issue upon that Plea the Case was between Fox and Andrew PAsch 6. Jac. rotulo 751. Sharpley versus Hurrell Action of Debt brought upon an Obligation and the Defendant pleads the Statute of Usury and sets forth that one Ship went a fishing to New-found-land which Voyage might be performed within eight Moneths the Plaintiff delivered fifty pounds to the Defendant to pay sixty pounds upon the Return of the Ship to Dartmouth from fishing and if the Ship should not come to New-found-land by reason of Leakage or Tempest should return to Dartmouth then the Defendant should pay the principal Debt and if the Ship should never return he should pay nothing and it was held by the Court that it was not Usury for if the Ship stayed at the New-found-land two years he should pay but 60. l. An Action of Debt brought against an Executor who pleads that he had nothing in his hands at the time of the Writ purchased and saith not nor any time after the Plea is not good but if the Plaintiff had took Issue
that he had Assets at the Day of the Writ purchased and it had been found for the Plaintiff now the Plea is made good If an Action of Debt be brought against two Executors and one of them onely appear and confess the Action the Judgement shall be against both of them of the Goods of the Testators in the hands of all the Executors and the Damages of him that appeared onely TRin. 16. Jac. rotulo 988. Houldsworth versus Barker An Action of Debt brought upon a Bill the Defendant pleads the Bill was delivered to the Plaintiff upon a Condition not performed and it was held a naughty Plea by the whole Court HIll 13. Jacobi rotulo 842. Harrison al. at the Suit of Fleet. An Action of Debt brought for 32. l. and the Plaintiff counts upon an Emisset Harrison pleads that he and the other do not detain from the Plaintiff the said 32. l. nor any Penny thereof and the other pleads to Issue and a special Entry made that the Issue should remain untill the said Harrison had perfected his Law or made Default and he at the Day did wage his Law and Judgement was that the Plaintiff should take nothing by his Writ PAsch 16. Jac. rotulo 1200. Rayson versus Winder An Action of Debt brought upon an Obligation with a Condition to perform an Award which was good in part and void in part and the Breach assigned upon the good part and the Award was to pay Money but no time of Payment afterwards it was demanded the Award is good GAsington versus Burcher Knight Turner Jones and Bowden for 1800. l. Burcher was outlawed Turner and Jones appeared by Supersedeas and Bawden appeared by another Attorney and the Plaintiff declared against them three that appeared upon an Account Turner offered to wage his Law and the others plead Nil debent per patriam and the Court was moved pretending that Turner shal not be admitted to wage his Law because the Defendants should not sever in Plea but the Court upon sight of divers Presidents were of another opinion although it was urged that Turner Jones joyned in a Supersedeas and therefore pretend that Turner should not sever in Plea from Jones that pleaded Nil debet per patriam but that Exception was disallowed for although two appear by Supersedeas yet they may vary in Plea MIch 16. Jac. rotulo 581. and the Imparlance entred 16. Jac. rotulo 1727. An Action of Debt brought by Lee versus Arrowsmith upon an Emisset for divers Parcels and upon an Account and the Parcels and Account amounted to the summ of 300. l. but in the Imparlance Roll the Parcels and summ accounted for did not amount to 300. l. by 6. l. And this variance was moved in Arrest of Judgement after a Verdict but the Court were of opinion that it was amendable because Ball the Attorney made Oath that he commanded his Clerk to summ the Account for 6. l. to maintain his Writ and therefore the Roll was amended HIll 36. Eliz. rotulo 1908. Action of Debt brought by Gage versus Gilbert upon an Obligation for 500. l. bearing Date first of February Anno 25. Eliz. The Defendant pleads a general Release made to him by the Plaintiff bearing Date after the making of the Bond of all Dues and Demands whatsoever except an Award made between the Plaintiff and one G. W. why R. R. then dead and one Obligation of 500. l. for performance of the said Award bearing Date 29. April 25. Eliz. and whether these words bearing Date 29. April shall have reference to the Arbitrement or Bond was the Question upon a Demurrer upon the Replication in which the Plaintiff shewed the special matter that the Award was made the 29. April and that the Bond was made the said first of February and it was adjudged that these words bearing Date should have reference to the Award and not to the Bond. And if the Heir pleads Ciens per discent besides one Acre if the Plaintiff please he may have Execution of that Acre or if the Plaintiff plead that he hath Assets beyond that Acre and it be found that he hath ten Acres more the Plaintiff shall have Execution of the Land onely and not of his person as it is where the Heir pleads that he hath nothing by Discent generally and it is found against him that Land and all other his Land which he hath and his Body are liable to the Judgement by a Capias ad satisfaciend Fieri facias or Elegit If a man be retained in London to serve beyond Sea he may have his Action for his Wages in England in any County And the like of an Obligation bearing Date at Roan in France it may be sued in England alleadging the place to be in such a County where he brings his Action And note that Debt may be brought in the Common Pleas without Original against any Officer or Minister of the said Court by Bill exhibited to the Court but no Process of Outlary lies upon that and the Judgement upon that is that the Plaintiff shall recover his Debt and Costs and shall have an Attachment ad satisfaciendum but no Exigont for because it is not by Original and all the Process by Bill shall be returnable at a Day certain but no Bill lies against a Serjeant at Law And note that the Judges Serjeants and Officers Clerks Attorneys and Ministers of the Court may have an Attachment of Priviledge out of the said Court without an Original to arrest any to them indebted or for any personal cause to proceed upon it as if it were by Original but no Process of Outlary lies thereupon and such Process of Attachment shall be returnable at a Day certain and not at the common Return and they may be returned from Day to Day If a man be bound to perform an Award of Arbitrators and they make an Award accordingly that one shall pay Money he may have his Action of Debt for the Money and declare upon the Award and afterward may have another Action upon the Obligation for not performing the Award by the opinion of the whole Court Mich. 5. Caroli An Action of Debt brought by an Executor the Defendant pleads an Outlary in the person of the Executor and demands Judgement if he ought to answer his Writ the Plaintiff demurrs in Law to that Plea and Judgement was given that the Defendant should answer over WOlly versus B. and his Wife Trin. 37. Eliz. rotulo 1306. An Action of Debt brought by Husband and Wife as Executrix the Defendant pleads in Barr an Outlary in the Testator by an Estranger which is in its force and upon a Demurr and solemn Debate adjudged a naughty Barr. Trin. 40. Eliz. rotulo 507. The like Plea pleaded to an Executor that brought an Action of Debt and adjudged no Plea And Dixon Administrator of Collins exhibited a Bill against
arbitrated or else it is void and in every award there must be satisfaction of that which was awarded POwel versus Crowther trin 9. Jacob. rotulo 313. det port e un three executors which appeared at several terms and plead severally ne unques execut the plaintiff proceeds to triall against one of them and was non-suit And then one of the other defendants take the record down by proviso and the plaintiff was again non-suit and both the defendants desire costs before the third issue was tried but costs was onely given to the first and denied to the second for his trial was erroneous because by the first triall the originall was determined If a defendant wage his law no excuse of sickness or water can save his default but in real actions he may excuse himself by such accidents If the condition of a Bond be to discharge a messuage of all incumbrances there one may plead generally that he did discharge it of all incumbrances but if it be to discharge it of such a Lease there he must shew how NOrton versus Sims Pasch 11. Iacob rotulo 346. debt upon a Bond entred into by an under Sheriff to his high Sheriff that the under Sheriff shall not meddle with the execution of executions and shall discharge the Sheriff from all escapes and the plaintiff shewes a breach in the under Sheriff for an escape by reason whereof the Sheriff paid the debt and damages question was whether this covenant be good or not Judgment for the plaintiff A high Sheriff may make an under Sheriff to be at will An under Sheriff hath the same authority an high Sheriff hath it is a void condition to save a man harmless from all men but good if it be special if the condition be to discharge and acquit I must shew how An under Sheriff was before the Conquest A Bond made to the Sheriff by the under Sheriff to discharge of all escapes this is good and lawful If any part of the condition of a Bond be against a Statute-law it is void in all but otherwise if part be against the common-law See Boswels case 10. Rep. when a man is under Sheriff he may do all ministerial things the Sheriff may do but not judicial If the under Sheriff will covenant that he will not meddle with executions above 20. l. this covenant of his own accord is good if a Sheriff binde his under Sheriff that he shall not return Venire Facias nor intermeddle with executions untill he be acquainted it is against Law and naught by all the Court A Bond to perform divers Covenants some against Law and others lawfull it is good for lawfull things and void for the rest The Death of one of the Parties in an Original Writ doth abate the Writ it is otherwise in a Judgement If Husband and Wife sue a Scire facias and the Husband dieth the Scire facias shall abate for it is no more a judicial Writ but as it were an Original to revive a Judgement The Court were of opinion in the case of Sir H. Dowckray that where he had delivered Money to his Servant to provide Victuals and the Servant buyes the Victuals in his Masters name and payes not for them and afterwards an Action is brought against the Master for the Money and he offers to wage his Law and the Court held he could not safely wage his Law because the Victuals came to his own use and therefore he is chargeable and must have his Remedy against his Servant But if the Master did forbid the Tradesman to deliver any Wares except his Man paid for them in that case if the Tradesman deliver Wares the Master may safely wage his Law as it was adjudged in Sir H. Comptons case MAntell versus Gibbs Trin. 7. Jacobi rotulo 1254. An Action of Debt brought upon an Obligation to which the Defendant pleads that an Estranger was imprisoned by another stranger and kept in Prison untill the Defendant as Surety of the stranger made the Bond and it was held a naughty Plea and a Repleader awarded ALston versus Walker Mich. 6. Jacobi rotulo 1342. Land was Mortgaged and a Promise that if the Mortgager at such a time and place should pay the Money to the Mortgagee his Heirs or Assignes that then the Mortgage should be void the Mortgagee died and the Money was paid to his Executors and it was adjudged to be no performance of the Condition for the Executor was not named and the Money ought to be paid to the Heir who should have the Land if the Money were unpaid and not the Executor STurges versus Dean Trin. 7. Jacobi rotulo 2915. An Action of Debt brought upon a Bill for Money to be paid within fifteen Dayes after his Return from Ierusalem he proving his being there the Defendant pleads that he did not prove-his being there to which the Plaintiff demurrs he making proof that is if it be true Sir Edward Cook and Daniel held that the proof should be made upon the Triall and the proof should be subsequent But Warburton and Foster held that the proof shall be precedent because it was restrained to a certain time but it had been otherwise if no time had been appointed NOrton versus Goldsmith Trin. 7. Iac. rotulo 3100. An Action of Debt brought upon an Obligation with a Condition that Chamberlain his Under-sheriff should not meddle with Executions beyond such a summ and alleadges a Breach for intermeddling with Executions contrary to the Condition and the opinion of the whole Court was that the Bond was void PAin versus Nichols Trin. 8. Iac. rotulo 134. An Action of Debt brought upon the Statute of Ed. 6. for not setting forth of Tithes and the Plaiutiff declared as well for Prediall Tithes for he might well bring his Action and for other Tithes as of Lamb and Wooll for which no Action would lie and upon a Triall the Jury found for all as well for those that would as would not bear an Action and after a Verdict this Exception was taken and Judgement arrested BOoth versus Davenant Trin. 8. Iacobi rotulo 805. A Bail taken in the then Kings Bench and an Action of Debt brought upon that Recognisance which was that if it happened the Defendant in that Action to be convicted then the Manucaptors granted and every of them granted that as well the Debt as Damages and Costs which should in that Action be adjudged the Plaintiff should be levied upon their Lands and Chattels And in Easter Terme 7 Iacobi the Defendant upon a Capias ad satisfaciendum awarded against him did not render his Body but afterwards Mich. 7. Jacobi he did render his Body and the Court accepted of it and discharged the Bail and whether the Bail should be discharged or not was the Question and the Court held the Bail should be discharged and Judgement was given for the Defendant RAyson versus Winder Pasch
16. Jac. rotulo 1200. An Action of Debt brought upon an Obligation for performance of an Award which was void in part and good in part and the Breach alleadged for that part which was good and the Award was to pay Money but no time of Payment alleadged in the Award and afterwards it was demanded and such Demand was held good KIng versus Law Trin. 16. Jac. rotulo 507. An Action of Debt brought upon the Statute of Perjury in which the Plaintiff was non-suit and the Defendant moved to have Costs upon the Statute of 23 H. 8. upon these words or upon any Statute for any Offence or Wrong personally immediatly supposed to be done to the Plaintiff or Plaintiffs and the Plaintiff after Appearance c. be non-suited c. but the whole Court held that he should not recover Costs upon that Statute because the Statute of 5 Eliz. was made long after the Statute of 23 H. 8. and upon the Statute of 7 Jacobi the Defendant shall not recover Costs for if the Plaintiff had recovered he should have recovered no Costs and so no Cost was given to the Defendant in that Action PAnnell versus Metcalfe Trin. 17. Eliz. rotulo 2722. Action of Debt brought against the Defendant as Administrator and he pleads a Recovery had against him in the City of Norwich and alleadges a special Custome that time out of minde that they had Cognisance of Pleas and in pleading the Custome he omitted this word Cur and held naught FEtherston versus Tapsall Mich. 13. Jacobi rotulo 3409. The Imparlance was entred and Hill 13. Jacobi rotulo 715. The Issue was entred An Action of Debt was brought upon a Bond and in the Imparlance the Bond was alleadged to be made at Newcastle and in the Issue Roll it was alleadged to be made at York and tried and afterwards a Writ of Error was brought and the Record was certified and upon a Scire facias that Error was assigned and the Court of Common Pleas was moved that the Imparlance Roll might be amended but the Court would not grant it GAtes versus Smith Mich. 16. Jac. rotulo 945. An Action of Debt brought upon an Obligation to perform an Award the Defendant pleads that the Arbitrators made no Award the Plaintiff by way of Replication sets forth the Award and that the Arbitrators had awarded the Defendant to pay such a summ and that he should be bound with another in such a summ and shews that the Defendant did not become bound with the other and the Defendant demurred for because it was out of the Submission and it was not in the Defendants power to perform it JAckson versus Comin Trin. 16. Jac. rotulo An Action of Debt brought upon an Obligation to perform an Award so that the Award be signed sealed and delivered and in pleading of an Award upon the Defendants saying there was no Award made the Plaintiff omitted in his Plea to set forth that the Award was signed and it was tried and a Verdict for the Plaintiff and this was moved in Arrest of Judgement and stayed by the Court. CLempson versus Bate Trin. 17. Iacobi rotulo An Action of Debt brought upon a Recovery in a Court-Baron and declares that every Court was held before the Steward onely and not before the Suitors and a Declaration there for Rent reserved upon a Lease for years behinde and the Court held the Declaration void and that these words according to the Custome of the Mannour time out of minde would not help the Declaration and the Defendant was admitted to wage his Law presently if he would COventry versus Windall Hill 13. Iac. rotulo 2588. An Action of Debt brought upon a Writing thereby shewing that whereas one T. before the sealing of that Writing had become bound to the Defendant to stay with him and serve him as his Apprentice for the terme of eight years and Woodall covenants with the Plaintiff that he before such a Day would receive and take the said Apprentice for the residue of the said terme of eight years then to come and would teach keep and imploy the said Apprentice in his House and Service in the Art and Mystery of Surgery which the said Woodall then used and professed if the said I. should so long live and bindes himself in 20. l. the Plaintiff alleadges that the Defendant did receive the said Apprentice in his Service at London c. and further sayes that the Defendant within the time to wit such a Day and Year sent the said Apprentice in a certain Voyage in a Ship called the Dragon from the House of the Defendant unto the East Indies there to stay and that the Apprentice did there arrive and doth yet there remain for which he brings his Action The Defendant pleads that he for the better instruction of the Apprentice sent the Apprentice to the Indies to use and exercise his Art and to this the Plaintiff demurrs and Judgement for the Plaintiff that the Defendant could not send the Apprentice out of England except himself went with him although it be in his own House and own proper Service but clearly he might send the Apprentice to Chester or any other part of England GArrard al. versus Dennet Hill 9. Iacobi rotulo 516. The Defendant after a Judgement entred brought a Writ of Error and assigned for Error that the Christian name of the Attorney for the Defendant was left out in the Imparlance Roll but it was in the Judgment Roll and also in the Roll with the Clerk of the Warrants was perfect to wit Henry Snag and therefore the Imparlance was made perfect and Henry put into the Imparlance Roll after assignement of Error by the Court. COwchman versus Hawtry Hill 14. Iac. rotulo 2167. Action of Debt brought against a Bailiff of a Liberty upon a Recovery in a Court of Record The Defendant pleads no such Record The Plaintiff brings the Record into the Court and there were divers Variances between the Record upon which the Plaintiff declares and the Record certified Videlicet in the name of the Bailiff and Continuances for in the Record certified there were divers Continuances which were not in the Record in Court and divers other Differences but the Judgement and Recovery of the Debt and Damages agreed and the other Variances were not material and Judgement was given for the Plaintiff notwithstanding DOminus Rex Iacobus versus Castle An Action of Debt brought upon an Obligation taken in the Kings name in the Court of Request with a Condition to appear before the Master c. and the Declaration is generall that the Defendant such a Day and Year by his Obligation did acknowledge himself to be bound to the King in the said 60. l. to be paid c. and it was adjudged naught for it did not appear to be taken in a Court of Record CHilde versus Peisley Hill 14. Jac. rotulo 2184.
use of my Master Mr. Serjeant Gaudy the sum of forty pounds to be paid at Mich. following the Plaintiffe brought an Action of Debt upon this Bill and declared verbatim as the Bill was and demanded the four pound to which Declaration the Defendant demurred and his pretence was as he supposed because he had received the money but as a servant to another use and so he ought not to be charged as a principall Debtor for the Bill is but a Testimony of the Receit as is the 1 H. 6. and 2 H. 6. in account for there an Indenture testifying the Receit which under Seal did not alter the nature of the first account but it was adjudged for the Plaintiff for although the first part of the Bill witnesse the Receit to be to anothers use yet in the last clause of the Bill for the payment of the money he doth not say to be repaid by his Master for then it would not charge him but the clause is generall to be repaid which of necessity ought to bind him that sealed for otherwise the party shall loose his Debt because he had no remedy against Serjeant Gaudy and because the Debt appears to be due it shall be intended to go onely in satisfaction of a due Debt which mark ALexander versus Lamb Mich. 6 Jacobi the Plaintiff brought an Action of Debt upon an Obligation of forty pounds against Lamb as Executor P. the Defendant pleads that P. in his life time was indebted to him in forty pounds due Debt and that the goods of the Testator to the value of ten pounds came to the Defendants hands which he retained towards satisfaction of his Debt and averred that no more goods beyond the goods to the value of ten pounds came to his hands to be administred the Plaintiffe replyed and shewed that the Defendant is Executor in his own wrong to P. and that he hath many other goods of P. to be administred at S. in the County of Norfolk and concludes hoc paratum est verificare c. the Defendant rejoyns and demands judgement if the Plaintiffe shall be admitted to say that the Defendant is Executor of his own wrong seeing by his Declaration he had affirmed him to be Executor of the Testament the Plaintiffe demurres in Law to this Plea and as to the matter in Law all the Court was for the Plaintiff for he may well reply that the Defendant is Executor of his own wrong notwithstanding the Declaration for there is no other form of declaring as is adjudged in Coults Case 5 Rep. fol 30. but the whole Court held the whole Plea to be discontinued for the Defendant having pleaded as to the Goods to the value of ten pounds which he retained in his hands for a Debt due to him and that he had no other Goods and concludes hoc paratum est definire which is not good for he ought to have said hoc petit quod inquiratur per patriam for there being a surplusage of the Goods denied by the Defendant and urged by the Plaintiff it ought to come in issue but could not by reason of the ill conclusion but in the same Term between West the Plaintiff and Lane Defendant West demanded four pounds Debt against Lane as Executor as above and all the rest of the Plea is as above and Judgement was given for the Plaintiff because the Defendant had confessed Goods to the value of ten pounds in his hands which was more then the Defendant demanded and therefore although by Judgement of Law an Executor of his own wrong cannot retain Goods to pay himself and although the other proceedings in the Plea are naught yet Judgement shall onely be given upon the confession of the Defendant and so it was entered with Mark GReen versus Eden Mich. 6 Jacobi The Plaintiff brought an Action of Debt upon an Obligation for a hundred pounds dated September the third 1 Jac. the Condition was that if the Defendant the fourth of September anno 20 Jacobi pay a hundred pounds to I. S. at such a place and also save the Plaintiff harmlesse from any suit which should be brought against the Plaintiff by reason of the Bond in which he was bound to J. S. as Surety for the Defendant then c. the Defendant pleaded that true it was that he by his Obligation bearing Date September the third 1 Jac. did become bound to the Plaintiff in two hundred pounds but further said that the said Obligation was not delivered as the Defendants deed untill the seventeenth of September in the second year of King James and then it was first delivered and further sayes that he had found the Plaintiff harmlesse c. to which plea the Plaintiffe demurres and adjudged for the plaintiff for the Bond mentioned in the Declaration is not answered for the plaintiffe indeed shows that the Defendant was obliged to him by his Obligation bearing date the same Day c. which is laid to be a perfect Bond the same day as the Plaintiff counts and then for the Defendant to come and say that it was first delivered the seventeenth of September 20 Jacobi which is a year after is no good Argument but naught without taking a traverse without that it was made the third of September 10 Jacobi Secondly as the Defendant hath pleaded he hath made part of the Condition idle and vain for by the Condition it appears that there is a Condition for the payment of a hundred pounds at a Day to come to wit the fourth of September in the second year and now the Defendant by his Plea hath made the Day of payment passed before he supposes the Bond to be delivered within a manner takes away the effect of the Plaintiffs suit and if the Condition had not stood upon two Branches but upon one onely and the Defendant will plead the Delivery after the Condition becomes impossible to be performed then is the Obligation become single for the whole two hundred pounds which mark by the whole Court BArret versus Fletcher Pasch 7 Jacobi The Plaintiff brought an Action of Debt upon an Obligation of five hundred pounds with a Condition to stand to the Award of J. S. and J. D. so that c. the Defendant pleads if the Arbitrator made no Award the Plaintiff replies and shews the Award made verbatim and concludes that they had made an Award and doth not assign any breach The Defendant rejoyns that the Award pleaded is not the Deed of the Arbitrators and Issue being joyned upon that there was a Verdict for the Plaintiff and Yelverton moved in arrest of Judgement because the Plaintiff in his replication had not assigned any breach of the Award and so had shewed no cause of Action for the replication is not for any Debt but is guided by the Condition and is for the performance of a collaterall thing to wit of an Award and although the Defendant had not answered any thing
the Judgement it is made to be by the Coroners yet it is not helped in this Case for the warrant of the Roll is the Clerk of the Assises Certificate and thus is that the Tales was returned by the Sheriff and the Court cannot intend it to be otherwise then is certified and thirdly the name of the Juror in the Tales which is Gregory is made in the Entry of the Judgement to be George and although the will shall be amended in this point according to the Certificate of the postea then in the other point of the Return of the Tales by the Sheriff it is not amendable and so it is error every way and the Judgement was reversed by the whole Court BRidges versus Enion Hillar 9 Jac. The Plaintiff declares how that he and the Defendant February tenth Anno 7. submitted themselves to the Award of S. R. Bodenham who awarded they should be friends and that the Defendant should pay the Plaintiff ten pounds at Miasummer following at such a place and the ten pounds being unpaid the Plaintiff brought his Action the Defendant pleads in Barr a release made by the Plaintiff to him of all demands which was made the tenth of April before Midsummer when the Debt was to be paid and the release was of all demands from the beginning of the world untill the tenth of April and shows the Release to the Court to which the Plaintiff demurres and adjudged against the Plaintiff for although the sum of Money awarded is not grounded upon any precedent Debt or contract between the parties yet by the opinion of the Court it lies in demand presently and the Plaintiff might assign it by his will and the Executor should have it and by the spirituall Law Administration may be granted of it before the day of payment if the Plaintif dye before yet it is not recoverable before Midsummer nor will any Action ly for it but it is a duty presently by the Award and as the award is perfect presently as soon as it is pronounced so are all the things contained in the Award if they be not made payable upon a condition precedent on the part of one of the Parties as if an award be made that if the Plaintif shall give to the Defendant at Midsummer one load of Hay that then upon the Delivery of the Hay the Defendant should pay the Plaintif ten pounds in this case the ten pounds cannot be released before the Day for it rests meerly in a possibility and contingency for it becomes a Duty upon the Delivery of the Hay onely and not before and therefore it is like the Case 5 E. 4. 42. of a Nomine pene waiting upon the Rent which cannot be released untill the Rent be behinde for the not paying the Rent makes the Nomine pene a Duty and the Case in question is like the Case Littleton 117. where a man is bound to pay Money at a Day to come for a Release of Actions before the Day cuts off the Duty because by 7 H. 7. 6. it is a Duty presently and the Case is stronger here because the Release is of all Demands which observe MOrgan versus Sock Pasch 10. Jacobi Sock brought an Action of Debt upon an Obligation of fourteen pounds entred into by Ar. Morgan Anno 1. Jac. against Tho. Morgan his Administrator the Defendant pleads that after the Death of Arth. and after Administration was to him committed to wit the 16 of September Ann. 6. the Plaintiff brought his Original against him of which he had no notice nntill the 24. of February Ann. 6. before which Day the Defendant was upon the Exig for not appearing which Exig was returnable Tres Pasch after and that the 17. of Febr. which was before the notice his Letters of Administration were revoked by the Archbishop and granted to Rich. M. the Brother of Arth. which Rich. is now Administrator and that he at the time of revoking the Administration had divers Goods of the Intestates in his hands and shews them what they were to the value of two hundred pounds and that he after the Administration revoked and before notice of the Suit had delivered them over to Rich. to wit the 22. of February 6. Jacobi and that he at the time of the Administration revoked had fully administred all the Goods of the Intestates besides the Goods delivered to Rich. c. The Plaintiff replied that the Administration was revoked by Covin between the Defendant and Rich. and upon that they are at Issue and the Jury found it to be Covin by reason whereof the Plaintiff had a Judgement to recover the Debt and Damages of the Goods and Chattels of the said Arth. at the time of his Death being in his hands to be levied and upon that Judgement he brought a Writ of Error and assigned for Error that the Judgement ought to be conditional to wit to recover the Debt of the Goods of the Intestate if so much remain in his hands and not absolutely But the Judgement was affirmed by the whole Court for where the Judgement may be final and certain there it shall never be conditional And because it appears by the Defendants Plea that he had two hundred pounds in his hands of the Intestates Goods it would be in vain to give Judgement against him if he had so much in his hands seeing he himself hath confessed by his Plea that 〈◊〉 more in his hands then would satisfie that Debt and if 〈…〉 could not levy the Debt in the Defendants hands he may upon the Defendants 〈…〉 Damage return a Devastavit and this by the opinion of the whole Court and then there was shewed to the Court a President in the Common Pleas to that purpose DOnghty versus Fawn Mich. 11. Jacobi The Plaintiff declares upon an Obligation of an hundred and twenty pounds dated 2. Novemb. 43. Eliz. And the Condition was that one Edw. Astle by his last Will in writing of such a Date had disposed the Wardship of the Defendant whereof the Defendant was possessed c. if therefore the Defendant do save and keep harmlesse the Plaintiff c. from all Charges and Troubles c. which may happen to the Plaintiff c. for or by reason of the last Will of the said Ed. A. or from any thing mentioned in that touching or concerning one M. Fawn or any Legacy or Bequest to her given or bequeathed or otherwise from Ed. A. to her due then the Obligation c. The Defendant pleads that the Plaintiff was not damnified The Plaintiff replies that after the Obligation made one M. Smith in the behalf of Jo. and Ed. A. Sons of the said Ed. A. named in the Condition did exhibite a Bill against the Plaintiff as Administrator of A. in the Chancery for the payment of the Portions of the said Sons to which Bill the Plaintiff by way of Answer pleaded fully administred and for the making good thereof sets
Lords Estate 231. Copy-holder what Action he shall have ibid. Capiatur upon a Judgement assigned for Error where 211. Common appendant apportionable aliter appurtenant 180. Copy-holder barred by a Fine if not claiming within five years 181. Cognisance as Bailiff 181. Commoner may take the Cattell of the Lord damage feasant where 187 Common in a field and Acres unsown sowing of parcell shall not destroy the Common 189. Consideration to raise an use 193. Challenge where it lyeth 194. 195. 196. Challenge none against the Jurors returned by the Eslizors 194. Commoner what Actions he shall have and how 227. Commoner may have an Assise against the Lord 227. Common is incident to a Copy-hold Estate 220. Commoner cannot chase the Lords Cattell if they surcharge the Common 208. Confession after Issue joyned refused 196. Commoner cannot bring an Action but the Lord may 197. Constable cannot detain one but for Felony 198. Continuando where proper 223 224. 234. Cursus aque granted 229. D. DOuble prosecution for one thing actionable where 12. Demand and deniall makes a good conversion 17. Denis age pleaded to a Bond 30. Distresse where good ratione concessionis non posaessionis 32. Devastavit may be by paying of money upon an usurious contract 33. Distresse in a Court Baron by prescription 36. Devise Executory where good 41. Devise of Land in Tail conditionally 45. Demand not necessary 10. Debt how and where it lies 50 Devastavit returned where 50. Debt lies for money levied 51. Debt against a Sheriffe for an Escape 51. Debt in Debet and detinet where 56. Default of the clerk amended 56. Demand alledgable ibid. Debt for performance of covenants 61. Debt upon Obligation in Italian 62. Debt for non performance of award 65. Damages from request 70. Deprivation given in Evidence 73 Dammages where to be severed 73 Debt lies not for fees of a Sollicitor 74. Debtee take Administration 74. Demand necessary in nomine penae 76. Devise of the profits good of the Land it self 80. Debt against an Executor after full age for Devast of an Admistrator duravit minor aetate 81. Debt lies for him for use money is delivered 83. Debt upon the Statute of perjury 83. 84. Debt against the Bailiff 86. 87. Debt upon the Statute of Edw. 6 for Tithes 87 Debt for Rent Arrear 89. Debt for Flemish money but demanded by English value 91 Demand of Rent where to be 97 Debt for Tithes Plaintiff need not to be named Rector 99 Debt for Tithes the statute mistaken is not good 101 Debt by a Bill for money received to anothres use 104 Debt for non-performance of Covenants 114 Devastavit when it ought to be retained 117 Debt upon a Lease made to an Infant 121 Debt for Tithes after the toarm ended 124 Demurrer to an action for non-performance of an Award 125 Dower against the Heir or Committee 127 Dower of Tythes how 172. Demand when to the Parson when to the Land 135 Debt contingent cannot be discharged where 110 Deed of gift good against him who makes it non obstante 13. Eliz. and against his Executors and Administrators 111 Demand of Rent to avoid a Lease where to be made 138. Discontinuances 155. Darraign Presentment where 159 160. Demurrer for doublenesse of Plea 164. Devise for years in confidence 196. Demand not necessary in Replevin for Rent 171. Distresse of a thing intire by two no return in Replevin adjudged 171. Distresse for Common Right 177 Distresse where it is good for the Rent but not for the nomine penae without demand 179 Demand of Rent-service how 181. Demurrer to part of the declaration what it effects 92 Disseisin of a Common what 197. Damages for Trespass locall cannot be mitigated by the court 204. Declaration shall not abate for false Latine 206. Damages none in partition 209. Damage where it shal be intire 233 Damage released for part 235. E. ELegit how executed 38. Elegit from the Teste binds Goods and Chattells 38. Extent upon Extent 39. Estovers 44. Entry Writ filed after the death of the Tenant 44. Error as to Costs where 3. Exception to a Declaration 8. Executor at what age 46. Exceptions to an Award 48. Exceptions to a Plea 51. Exception to a Venire facias 52. Estoppell 57. Error assigned 65 66. 59 Executor an Assign in Law 78 Executor de seu tort shall not prejudice the rightfull 79 Escape against a Bailiffe of a liberty 80 Executor his election for part is not good 83 Escape lies not against the Sheriffe where 85. 119 120 Executor de seu tort cannot retain money to pay himselfe 104 105 Election of Execution either against Principall or Baile 122 Error lies not before 〈◊〉 value 〈◊〉 inquired of 〈…〉 Executor shall not paâ—… 4. Jac. cap. 3. 107 Elegit to a forreign Sheriffe upon a testatum in London 107 108 Ejectment doth not lye De aequae cursu 142 Ejectment sufficient by a servant in present Relation 143 Ejectoris in traverunt and after he did expulse in num singulari 149 Essoine lyes by Writ of Journeys accompts though allowed in the first Writ 152 Essoine where it lyeth 154 Extinguishment of Common by inclosure where 174 Exceptions to an Avowry 179 Evidence what shall be given 207 Enquiry of Damages the Plaintiff not bound to prove the property of his goods taken but the value only 214 Estovers if the Owner cut all the wood downe what remedy 220 Exception taken for incertainty 232 Estray how to be used and the nature of it 236 F. FRench Pox actionable 11 Filching fellow not actionable 13 Forsworn Knave where it is actionable 13 Forging Knave where actionable 16 Feme where not bound to performe the Covenant of her Husband 31 Fraud not â—â—nended 45 Feme Covert cannot convert 3 Feoffment to uses 60 Feme Covert cannot make a letter of Attorney 134 Formidon in descender 152 153 Felony committed is good cause for to arrest one suspected but not to defame one 2 Feme cannot plead without her Husband 197 Free Warren what 228 G. GRant by the King where good 27 Grant not enlarged by a bare recitall 32 Guardian in socage who 40 Gift by Deed void quoad chose and Action 40 Goods not saleable upon execution out of a Court Baron without Custome 41 Guardian of the spiritualties who 43 Generall release pleaded 54 Grantee of a Reversion what action he shall have 56 H. HAbeas Corpus to the Marshalsey 61 Hue and Cry 155 Hundred charged in Robbery 156 Hundred not chargeable after the yeare and day 156 Hundredors in a Jury how many necessary 193 Husband and Wife where they shall be joyned and where severed in an action 209 I. INcertainty in the Declaration 10 Justification disallowed 11 Indebilatque assumpsit where good 14 Iustification by the Sheriffe 17 Judgment arrested for default in the Declaration 21. 23 Judges of the fact who 36 Inquisitions where naught 38 Juror appearing cannot be discharged 41 Issue cannot be bastarded after death
and void in it self this Clause doth not supply that For this is but notification to the Officers of the Queen that they should be attendant to the said Earl For though that the Intent of the Queen was that the Earl of hutland should execute this office by Deputy yet this intent shall not make the grant good for though that the Intent of a common person be apparent within the Deed yet this intent shall not make a voyd grant good 19 H. 6. 20 H. 6. 22 H. 6. 15. Grant to 2. Et heredibus with warranty to them and to their Heirs this clause of warranty though it were the intent of the parties apparent yet it was not sufficient to make the grant which was voyd good and so it is in 9 H. 6. 35. Abbot by his deed in the first person grants a Tenement and the Grantee in the third person renunciavit totum Commune quod habuit in uno tenemento and though that in this Grant the Intent of the parties is apparent yet this Intent shall not make the Grant which is void in it self to be good So if a man makes a Lease for life to the Husband and Wife and after grants the reversion of the Land that the Husband held for tearm of life that grant of the Reversion is void though that the Intent was apparent 13 Edw. 3. Grants 63. And so in Patent of the King grant to a man and heredebus masculis suis is void though that the Intent also is apparent that he should have an estate tayle 18 H. 8. b. Estates 84 But admitting that the Grant may be supplyed by the last words that is that in the last Grant the words are officia predicta and in the clause of Assistance yet these words may be supplyed for there are two other Grants in which there is expresse mention that the Patentee may exercise it by Deputy and so the words shall have full Interpretation Reddendo singula singulis And hee conceived that the Writ shall abate for that that it contains Vi armis And also the Declaration for the Jury have not found any disturbance at all And he agreed that in some cases Trespasse Vi armis well lyes as it is Fitzh Na. Bre. 92. 86. as where it is actuall taking 45 Ed. 3. 30. 44 Edw. 3. 20. where trespasse Vi armis is maintainable against a Miller for taking of Toll against the Custome for here is actuall taking and 8 R. 2. 7. Hosteler 7. In an action of Trespasse Vi armis against an Host for that that certain evill persons have taken the money of the Plaintiff and good But where there is not any actuall taking there the Writ ought not to containe Vi armis for for not scowring of a Ditch or stopping of Water as it is 43 Ed. 3. 17. But for casting of Dung into a River action of Trespasse Vi armis lyes 12 H. 4. But for burning of a house it doth not lye Vi armis 48 Ed. 3. 25. And so for turning of water-course 3 H. 4. 5. But in this case there is but disturbance with a word and commandement to hold a Court and no Court held nor no Proclamation made and so no disturbance at all 16 Edw. 4. 11. one hath the office of a Parkership and another man was bound that he should not disturbe And in debt upon the Obligation he pleaded that the Obligor hath threatned to disturb him and adjudged that this is no breaking of the Condition for there is no disturbance and in 2 Ed. 3. 25. and 40. Quo minus by Jeffery Scorlage where the King grants to the Mayor of Southampton the Customes of the same Towne and in quo minus for taking of them it was adjudged that words are no assault but there ought to be an act done But in this Case is nothing found but words and no act done but it is found that after the Defendants held the Courts But that doth not appear if it were against the will of the Earl of Rutland or not and so concludes that the action is not mayntainable And this case was argued again in Trinity Tearm next ensuing by the Justices Danyel being dead but I was not present at the argument of Foster and Warburton Justices but I heard the arguments of Walmsley Justice and Coke chiefe Justice And first Walmesley conceived that the Grant was good and that the Earl of Rutland by this Grant might exercise his Office by Deputy and this only in respect of the quality of his person for the Patentee is a Noble man which hath been employed as an Embassador of the King into other Realms and this Grant of this Office being amongst others varies from them for this wants the word exercendum which is contained in the others and also the office of a Steward is too base for an Earl to execute for the Steward is but as a Clark and not a Judge for he shall not be named in a Writ of false Judgment nor shall hold plea of any actions but under 40. s. for that it is not fit nor convenient that an Earl should exercise such a bas Office in Person For if Recovery here be pleaded it shall be tryed by the Country 1 Edw. 3. And the Steward shall not give Judgment but the Suitors and no tryall shal be by Verdict but by waging Law and the fee of the Stewardis but a 1 d. for every Plaint And for that it was not the Intent of the Queen that the Earl should exercise such a base office in person and her Intent is apparent for that that the word Exercise is not contained in the Patent And the Intent of the Queen is to be considered for the other Offices are fit to be executed by the Earl for the exercising of them is but a matter of pleasure as in hunting in the Forrests and Parks of the Queen and for that if these Grants have not contained words of deputation the Earl ought to exercise them in person according to Littleton And Noble men are not to be used as common people for they are not to be Impannelled of a Jury and Capias doth not lye against him by which he cannot be outlawed and for that he shall not be bound to sit in such a base Court as this base Court is And all this matter is wel declared and expounded in the last clause of the Patent where the words are Et ulterius volumus mandamus quod omnes c. Sint intendentes auxiliantes c. Where the words volumus in Patents of the King to amount to as much as concedimus or a Covenant which is all one with a Grant as in 32 H. 6. The King releases all his right in an Advowson Nolentes that the Patentee shall be grieved or disturbed and adjudged that this shall amount to a Grant and so the word Volumus in the principall case and also he conceived that the
Plaintiff SMith versus Bolles Sheriff of London Pasc 9. Jac. rotulo 1353. In case for that the name of the Sheriffs were omitted on the venire fac And for that cause one Judgement given for the said Smith was reversed by Writ of Error And for that Misprision Smith brought such Action of the Case HArris versus Adams If thou hadst had thy Right thou hadst been hanged for breaking of Paches House the words not actionable Thou art a Thief thou hast stollen the Town-beam meaning the Town of Wickham Serjeant Hutton of opinion the Action would lie STephens Attourney versus Battyn for words Thou hast cozened M. Windsor of his Fee and I will sue thee for it in the Star-chamber for that thou didst not come for Windsor Judgement for the Plaintiff Trin. 11. Jac. BRadley versus Jones Trin. 11. Jac. rotulo 3390. The Plaintiff brings his Action upon the Case for unjust vexation The Defendant had exhibited Articles against the Plaintiff to have the good Behaviour against him and took his Oath before Doctor Cary one of the Masters of the Chancery and afterwards the Defendant ceased prosecution there and obtained from the Kings Bench a Supplicavit to have the good Behaviour there And the Court was of opinon that the Action would lie because he prosecuted in the Kings Bench and not in the Chancery But the Court said that if he had prosecuted in the Chancery though the Articles had been scandalous yet no Action would have lyen for a man shall not be punished for mistaking the Law for he may be misadvised by his Counsel BRooks versus Clerk Pasch 11. Jac. rotulo 307. Action brought for these words His Son Brooks hath deceived me in a Reckoning for Wares And his Debt-book which he keepeth for Sale of Wares in his Shop is a false Debt-book and I will make him ashamed of his Calling Hubbart and Nichols against the Plaintiff and Warburton for the Plaintiff Pasch 11. Jac. rotulo 2147. Action of the Case brought for a Nusance for building the Defendants House so near the Plaintiffs that a great part of it superpends And the Plaintiff in the conveying his Title shews a Lease for years made to him if the Lessor should so long live and doth not aver the Life of the Lessor but saith that by vertue of the Demise the Plaintiff hath been and then was thereof possessed and adjudged sufficient MOrton versus Leedell Hill 10. Jac. rotulo 1783. Action of the Case for these words He meaning the Plaintiff is a lying dissembling Fellow and a mainsworn and forsworn Fellow And Judgement for the Plaintiff after divers motions THomas Attourney versus Axworth Pasch 11. Eliz. rotulo 352. Action of the Case for these words This is John Thomas his writing and he hath forged this Warrant meaning a Warrant made by Buller Sheriff of that County upon a Capias prosecuted out of the Court of Common Pleas by M. H. against the Defendant and directed to the Sheriff ROw versus Alport Mich. 11. Jac. rotulo 1527. Action upon the Case brought for suing in the Admiral Court for a thing done upon the Land and not upon the high Sea BRay versus Ham Trin. 13. Jac. rotulo 1994. Action of the Case for these words Thou art a cozening Knave and thou hast cozened me in selling false Measure in my Barley and the Countrey is bound to curse thee for selling with false Measure and I will prove it and thou hast changed my Barley which I bought of thee And the Plaintiff sets forth in his Declaration that he was Bayliff to W. C. and H. C. of certain Lands in P. for three years and during the said time had the care and selling of divers Corn and Grain growing upon the same Land and after Triall and Verdict for the Plaintiff it was moved in Arrest of Judgement that the Action would not lie but the Court were of a contrary opinion and Judgement was given for the Plaintiff BRown versus Hook Pasch 13. Jac. rotulo 234. Action of the Case for these words Brown is a good Attourney but that he will play on both sides And it was moved in Arrest of Judgement that those words would not bear an Action but the Court held they were actionable but did not give Judgement because the Plaintiff did not shew in his Declaration that the words were spoken of himself STober versus Green Mich. 11. Jac. rotulo 1â—91 Action of the Case for these words Thou didst keep and sell by false Weights and in 24. s. bestowing thy Weights were false two Ounces and thy Man will be a Witness against thee and I will prove it The Defendant pleaded that the Plaintiff occupied one Shop and kept unlawfull Weights and by such Weights sold by reason whereof he said these words Videlicet Thou didst keep and sell by unlawfull Weights and in 24. s. bestowing thy Weights were false an Ounce and three quarters and thy Man c. And traversed the words in the Declaration and it was adjudged a naughty Traverse for that the words in the Bar and justified by the Defendant are actionable AGar versus Lisle Mich. 11. Jac. rot 318. Action of Trover brought in York-shire the Defendant justifies for Toll at Darnton in Durham and traverse c. The Court doubts of his Traverse being onely for the County of York whereas it ought to be any where else generally And Hobart said the Bar was nought because in the justification no conversion was sufficiently alleadged And note that if a man doth a thing which is allowable by the Law as to distrain Cattle and impound them that is no conversion but if he work them it is a conversion AVstin versus Austin Trin. 10. Jac. rotulo 3558. In Troyer the Defendant pleads that before the time that the Plaintiff supposes the Goods to come to the Defendants hands one S. A. was possessed of the Goods and amongst other Goods sold them to the Defendant but kept them in his own hands and afterwards sold them to the Plaintiff by reason whereof the Plaintiff was possessed and afterwards looses them and they came to the Defendants hands who converts them as it was lawfull for him to do The Plaintiff demurs and it was held a naughty Bar for it amounts to a Non cul And Cook doubted whether the Court should compell the Defendant to plead Non cul or award a Writ of Injury And a Writ of Inquire was awarded ALlyns versus Sparkes al. Trin. 8. Jac. rotulo 1606 Action of the Case brought for stopping up the Plaintiffs way and the Plaintiff declares that one H. B. was seised of the Mannour of M. of which two Acres were customary Land and that the Lord of the Mannour had for himself and his customary Tenants for the said two Acres a certain high-way in by and thorow c. And that the Lord of the Mannour granted the said two