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
was entred in haec verba Noverint universi per praesentes me Thomam Keyes tenerie firmiter obligarie Edw. Dodson c. Anno Regni Reginae Dom. nostri Jacobi c. Rege Defensor suis de Scotia sexto Angliae quadragesimo secundo 1608. And upon this the Defendant demurred and adjudged for the Plaintiff for there are two principal things to be contained in one Obligation first the parties to whom secondly the summ in which one party is bound and they are both here expressed sufficiently to the view of the Judges for both the Obligor and Obligee are well named and also the summ is well expressed to be ten pounds but those words by which it may be gathered that the party intends to binde himself are found in false Latine Videlicet tenerie obligarie in which words there is onely an e. too much and it is true false Latine as it is 10 H. 7. shall abate a Writ because the party may purchase a new Writ but it shall not overthrow an Obligation for the party cannot be again bound when he will and although there is no such year of the Reign of the King as of Scotland the sixth c. it is not material for it is good though it have a false Date as 13 H. 7. Kelly and the party may surmise a Date in his Declaration and it is good and the Defendant must answer to the Bond and not to the Date and the Law is the same if it have an impossible Date as the 30. of February whereas there is but eight and twenty Dayes in February yet it is good but in the principal Case it is helped by the Year of our Lord which is certain and sufficient and the Declaration good which had omitted the year of the King and put in the year of our Lord and Judgement was given by the opinion of the whole Court HAwes versus Leader Hill 8 Jacobi Hawes brought an Action of Debt against Leader Administrator of Cookson the Case was Thomas Cookson the nineteenth of February 20 Jacobi for twenty pounds paid into the Defendants hands by the Plaintiff grants all his Goods mentioned in a Scedule annexed to the Deed and gives possession of the goods by a Platter and the goods remained in his house as they were before to be carried away upon demand by the Plaintif and covenants that the intestate his Administrators c. should safely keep them and quietly deliver them and to perform that covenant the intestate binds himself in forty pounds to the Plaintiff and afterwards Cookson died and the Plaintiff the sixteenth of March the sixth of King Iames demanded the goods of the Defendant being Administrator and he would not deliver them by reason whereof the Plaintiff brought his Action and in his Declaration shews in specie what goods were contained in the Scedule the Defendant pleads the Statute of the 13 Eliz. of fraudulent Deeds and gifts c. and further sayes that Cookson the intestate the twelfth of February 2 Jacobi was indebted unto divers persons and names them in severall summes amounting to a hundred pounds and being so indebted the nineteenth of February 2 Jacobi made the Deed of gift as is above declared being then of those and other goods possessed amounting to fourscore pounds and no more and that it was made by fraud and covin between Cookson and the Plaintiff to the intent to deceive his Creditors named and shewes how that Cookson notwithstanding the Deed of gift occupied and used the Goods all his life and died and that Administration was committed to the Defendant the Plaintiff replies that the Defendant had assets in his hands to satisfie the Debts demanded and further sayes that the Deed of gift was made upon good considerations upon which they were at issue and at triall at Huntington Assises Cook rejected the Triall because the Issue was not well joyned and a Replender ordered upon which the Defendant pleaded as is above and the Plaintiffe demurred and adjudged for the Plaintiff first because the Defendant had not averred in his Barr that the Debts due yet certain unpaid to the Creditors named for there was four years time between the Deed of gift made and the death of the intestate in which time the Debts might well be presumed to be satisfied Secondly the Defendant did not shew that the Debts due to the supposed Creditors were by specialty and then the matter of his Plea is not good for the Defendant cannot plead such a Plea but to excuse himself of a Devastavit and that could not be as this Case is for he being Administrator is not chargeable with the Debts if they be not upon Specialty Thirdly the Defendant supposed that it would be a Devastavit in him if he should deliver the Goods to the Plaintiff which were contained in the Deed of Gift but that cannot be for those Goods in the hands of the Plaintiff are liable to the Creditors as an Executor of his 〈◊〉 wrong if the Deed of Gift be fraudulent And fourthly it may be the Creditors will never sue for their Debts and by that means the Defendant will justifie the Detainer of the Goods for ever which would be very inconvenient But if the Defendant had pleaded a Recovery by any of the Creditors and that such Goods to the value c. had been taken in Execution this had been a good Plea Fifthly the Defendant is not such a person as is inabled by the Statute of 13 Eliz. to plead the Plea aforesaid for the Statute makes the Deed void as against the Creditors but not against the party himself his Executors or Administrators for against them it remaines a good Deed of Gift and this by the opinion of the whole Court SAllows versus Girling Pasch 9. Jacobi The Plaintiff brought an Action of Debt upon a Bond and the Condition to stand to the Award of A. B. C. D. of all Actions Quarrels and Demands c. so that the said Arbitrement were made in writing before such a Day by the said A. B. C. D. or by any two of them under their hands c. The Defendant pleads that the said A. B. C. D. nor any two of them made no Award the Plaintiff replies that A. and B. two of the Arbitrators before the Day by writing under their hands c. made an Award and set forth the Award and assigned a Breach in the Defendant for not paying of three pounds at a Day past limited by the Award to which the Defendant demurrs and it was adjudged the Plaintiff and the Question was whether the Award made by A. and B. alone were good or no because the Submission was to four named and in the Premises of the Condition the Defendant is bound to stand to the Award of four also yet it was adjudged by the Court upon consideration had upon every part of the Condition that the Award made-by two alone is good for the
A special Verdict in an Ejectione firme the Question was upon the words of the Will which were that her Husband had given all to her and nothing from her and whether these words imply a consent and so an Agreement to the Devise of the Husband or no. And Foster Warburton and Walmsley that it was an Assent but Sir Edward Cook was of a contrary opinion and note she was made sole Executrix and she proved the Will and Justice Foster held it to be an Assent in Law The property of Goods cannot be in obayance they must be in the Executor Administrator or Ordinary and Warburton held that the words made an Assent and said that when the Bond is delivered to one to the use of another untill he dis-assent it is his Deed but when he dis-assenteth then it is not his Deed Ab initio if a Lease be given by Will to divers and made one of them his Executor in this Case the Executor must make his special Claime else he must have it as Executor and Sir Edward Cook held that the general Entry and proof of the Will is no Assent she must first have it as an Executor before she can have it as a Legatee a Legacy is waiveable but if the Law work it in me whether I will or no then I cannot waive it and therefore he held she should enter specially ROlles versus Mason Hill 6. Jacobi rotulo 2613. An Ejectment brought and the Question grew upon two Customes one was that the Copy-holder for Life may name to the Lord of the Mannour who should be his Successor in the Copy-hold and the other that the Copy-holder for Life may cut down all the Trees of wrong upon the customary Land and the third Question was whether the second Lessee of the Mannour may take advantage of the pretended Forfeiture for cutting down the Trees by the Law a Copy-holder shall have house-boot free-boot and hedge-boot and common of Turbary to burn in his house but he cannot sell them A Copy-holder by Custome may name his Successor and if the Lord refuse to admit him the Homage may set a reasonable Fine and so he shall be admitted The Lessee of the Mannour may take advantage of the Forfeiture but in this Case it is no Forfeiture and the Copy-holder may cut downe Trees for he hath a greater Estate then a sole Tenant for Life because he shall name his Successor APrescription goeth to one man and a Custome to many and Judgement for the Defendant MAson versus Strecher alios Pasch 7. Jacobi rotulo 606. An Ejectment brought for the Mannour of P. it was held by the Court that the consent of a Servant in the absence of him who is possessed of the Terme shall not out his Master of the Possession because the Servant hath no interest in the Land CRamporne versus Freshwater Pach 8 Jacobi rotulo 2742. An action of Debt brought upon an Ejectment the Plaintiff was non-suit upon his own Evidence because he declared upon a Devise made for three years and it was confessed by the Plaintiff that the Lands were Copy-hold Land and that the Plaintiff had not license to demise them for three years neither could he prove that by any custome he could demise them for three years without a license and so the Lessor was taken for a Disseisor by the opinion of the Court. CAffe versus Randall Trin. 9. Jac. rotulo 3299. An Ejectment brought against Randall and his Wife the Ejectment made by the Wife and not guilty pleaded and tried and it was moved in Arrest of Judgment because the Issue was pleaded in this manner Et dicunt quod ipsi in nullo sunt culpabiles c. And the Ejectment was made by the woman alone and ought to have been that she was not guilty and upon examination of the Plea Rol and Record of Nisi prius it appeared to the Court that the Plea Roll was right but the Record of Nisi prius mistaken but Serjeant Barker said that at the time when the Record of Nisi prius was tried the Plea roll agreed with the Record and was afterwards amended and Waller the prothonotary confessed that he amended the plea rol as upon his private examination of the roll but without notice that there was a Record sent down to try that Issue and therefore the Court ordered that the Record of Nisi prius should be amended according to the Plea roll which was done accordingly PAts versus Chitty Trin. 9. Iac. rotulo 2151. vel 2151. An Action of ejectment brought the Defendant pleads a concord with satisfaction in Bar the Plaintiff demurs and it was held by Winch and Foster a good Plea because the Action is not only in the realty for he recovers damages and possession which are meer Chattells Secondly Because the Defendant pleads the satisfaction as in discharge of that Action and all others and ten shillings for rests Warburton of the same opinion and he vouched the like case satisfaction is good Plea in a Quare impedit wherein a man recovers the presentation And Cook said that in all Actions wherein money or Damages are recoverable as well wherein the Defendant might wage his Law as wherein he might not it is a good Plea Pasc 3. Jacobi rotulo 1033. Eden and Blake but in matters where one Free-hold or Inheritance is recoverable concord is no Barr and in dower recompence in other Lands or Rent is no Barr. But by petition in Chancery but Rent Issuing out of the same Land demanded is a good Barr and in all Actions Quare vi armis wherein process of Outlary lies by the common Law concord or an Award is a good Barr 38 H. 6. title Barr satisfaction in trespass by an Estranger is a good Barr although it be without notice of the trespassor by the opinion of the whole Court CRaddock versus Iones Trin. Iacobi rotulo 2284. An Ejectment brought and declares upon a Lease made by W. Cotton Knight the Defendant pleads not guilty and makes a challenge and praies a venire facias to the Coroners because the Sheriff is Cozen to the Lessors Wife which is not a principle challenge but by favour and after a Triall and Verdict it was amended in arrest of the Judgment because it was mistried and Barker vouched a case in the Exchequer Chamber in 43 El. upon a Writ of Error between Higgins and Spicer upon a Venire facias awarded in the like manner and it was adjudged to be mistryed and it was then agreed that misconveyance of process is where one Writ is awarded in place of another to an Officer which of right ought to execute that process and he returns it this is helped after a Verdict by the Statute But if a writ be awarded to an Officer who ought not to execute that process and he returns it this is a mistriall and not helped by the Statute and Warburton said that Dyer
he be Lord or Free-holder The best badge of truth is the usage of taking the profit of the Trees 11 H. 4. rot 80. Where the Court ex officio should inquire and that omitted the Court may supply it but where an Attaint lyeth that is not to be supplied as in a Valore Maritagii the value is the point of the Writ and if that be omitted by the Jury never to be supplied by Writ Cheyneys case Valore Maritagii and intrusion were at the Common Law before the Statute and the Statute doth but inlarge the Common Law for by the Statute the Judgement is otherwise then at the Common Law It is vain to plead the Execution of a Writ of Seisin upon a Recovery but to plead that he did enter MIch 10. Jac. If I purchase Land by a name and alleadge it to be in a wrong Parish or Shire it is good notwithstanding the mistake by the Court. A stranger shall be bound by a Law made for the publique good but he must come within the place where it was made The King cannot grant precedency in publique things as to go by Water or by passage on the Land as by Coach if a Bond bear Date Super altum mare then it must-be sued onely in the Admiral Court otherwise it cannot be sued there Every Bishop hath his Cathedral and Councel and the Councel and Bishop there decide matters of Controversie the Prebends have their names from their affording of help to the Bishop and in time of the vacancy of the Bishop the Arch-bishop is Guardian of the Spiritualties and not the Dean and Chapter TRin. 14. Jac. rotulo 1810. Birtbrook versus Battersby Exception raken after Triall The Action was laid in Westmerland and the Jurata written at the end of the Record was Ebor. ss ura Inter c. and recites the Day of Triall in the County of York and the place where the Triall was at York and prayed that it might be amended and it was granted to be amended by the whole Court INt. Bullen Jarvis The Venire facias was made in this Form Videlicet Liberos legales homines de B. and it should have been De vicineto de B. and it was notwithstanding held good and amendable by the Roll for it shall be intended that the Jurors are inhabiting in the Town of B. although the Sheriff returns the Jurors of other places and none of them be named of B. and the Venire facias was returned by A. B. Ar. without naming him Vic. and it was amended by the Court. GRiffin versus Palmer Trin. 15. Jac. rotulo 924. Issue taken whether the Lands contained in the Fine were ancient Demesne or not pretending they were parcell of the Mannour of Bowden in the County of Northampton which was pretended to be ancient Demesne and the Doomesday Book was brought into the Court and by that Book it appeared that the Mannour of Bowden was in the County of Leicester and not in the County of Northampton but the Councel affirmed that the Mannour was both in the County of Leicester and Northampton but it valued not for the Doomsday Book was against the Plaintiff The Court was moved to amend a Venire facias which was Album Breve but the Court would not grant it although the Sheriffs name was put to the Pannell but if the Sheriff upon the Venire facias had returned that the Execution of that Writ did appear in a certain Pannell annexed to that Writ and had not put his name to the Writ of Venire facias but to the Pannell in such case the Court would have amended the Venire facias Lessee at will cannot grant one his Estate if one occupy with Tenant at will this is no Disseisin to the Lessor If a Tenant for seven years suffer Trees to grow above the age of 21. years they are Timber and it is waste to cut them Tenant at will shall pay his Rent when he holdeth over his terme but Tenant at sufferance shall not pay any Rent If a man holdeth over his terme and pay his old Rent he shall be accounted Tenant at will If one being sick giveth Notes to make his Will and after by infirmity of sickness he becometh so weak that his memory faileth him and these Notes are made into a Will this is a good Will otherwise it is if he become lunatique after the Notes given MIch 15. Jacobi One Warter was committed to the Fleet by the Lord Treasurer of England and the Prisoner was brought to the Common Pleas by Habeas Corpus which was returned and no cause of the Commitment expressed and for that cause the Prisoner was set at liberty and bailed TRinity Terme 15. Jacobi Hanson one of the Attorneys of the Common Pleas delivers a Note to the Sheriffs Clerk of the names of divers Jurors that were to be returned and of divers others that were not to be returned in a case concerning one Butler and for this Offence he was put out of the Roll of Attorneys In Spilmans case if I have Estovers in Land and cut down Estovers and a stranger taketh away the Estovers I shall have an Action against him that taketh them away although he have there Common of Estovers also If the Husband sow the Ground and die the Executors and not the Heir shall have the Corn but if the Father sow the Land and dieth or the Heir sow the Land and the Wife recover Seisin in Dower she shall have the Corn. The setting open a Shop on the Sabbath day is punishable by Statute Law and so is a House of Bawdry and not to be dealt with by the high Commissioners So long as the Land is occupied by him that hath the Fee-simple which did formerly belong to the Order of the Cistercians it shall pay no Tithes but if he let it for years or life the Tenant shall pay Tithes HIll 11. Jac. rotulo 90. A Recovery was had upon a Writ of Entry in le post for a common Recovery between Hartley and Towers in the County of Bucks the Attorney who prosecuted the Recovery by negligence did not file the Writ of Entry which was prosecuted orderly and all Fees paid when the Recovery was passed And in Easter Terme 14. Jac. it was moved that the Writ of Entry might be filed and it was granted although the Tenant was dead the Writ of Entry was returnable Octabis Purificationis MIch 14. Jacobi My Lord Hubbard Justice Warburton and Winch held that when there were but three Judges of the common-Common-Pleas they might argue Demurrs and if two of them were of one minde and one of the other the Judgement should be given according to their opinions My Lord Cook said that for the Body of the Church the Ordinary is to place and displace in the Chancell the Freehold is in the Parson and it is parcell of his Gleab Tpespass will
of Clanrickard with whom Yelverton was of Councel it was resolved that if the Issue be upon the custome of Tithing and that it be found against the Defendant he shall pay the value expressed by the Plaintiff in his Declaration for because by the collateral matter pleaded in Barr the Declaration is in whole confessed SMith versus Smith Trin. 6 Jacobi one Bisse made K. his Wife and John his Sonne being one year old Executors and K. solely proved the Will and afterwards married the Plaintiff and they two brought an Action of Debt as Executors against the Defendant and the Defendant pleads in abatement of the Bill that John was made Executor with K. and is yet in life and not named the Plaintiffes reply that John was but of the age of one year and that K. proved the Will and had Administration committed to her during the minority and that John is and was at the time of the Writ purchased within the age of seventeen years and upon that Yelverton demurred and adjudged for the Defendant that the Bill should abate for both of them in truth were Executors and ought to be named in the Action and although by the Administration granted during the minority K. had the full power yet the Infant ought to be named he being Executor GOmersall versus Ask Trin. 6. Iacobi The Defendant brought an Action of Debt against the Defendant as Administrator of her Husband upon two former Judgements given in two Actions of Debt against the intestate and shews the recoveries the Defendant pleads that the intestate entred into a recognisance 35 El. in Chancery to Sir Henry Bechel and shows that after the Judgements had by the Plaintiff Sir H. obtained a Judgement against the intestate upon the Recognisance and that she hath not assets to satisfie the Plaintiff of the intestates Goods beyond Goods that are chargeable and liable to the Judgement upon the Recognisance to which Plea the Plaintiff demurres and by Fennor and Williams justifies the Plea in Barr was good for although the Plaintiffes Judgements mentioned in his Actions are before Sir H. Judgement yet because the Plaintiff by his Action doth not demand Execution of the Judgements but onely his Debt recovered for this Action brought it as an originall and in the same Court as if he did demand the Debt upon the first Obligation and therefore because the Plaintiff had not sued out a Scire facias to execute the first Judgements but had prosecuted a new originall the Plea is good and allowable as it had been upon the said Obligation but Yeluerton and Fleming were of a contrary opinion for the Plea had not been good against the intestate himself and the Executor or Administrator represents his person and therefore the Plea is not good but onely in excuse of a Devastavit and they were of opinion that the Action brought by the Plaintiff was in nature of a Scire facias for he demanded the Debt in another course then it was at first for that Debt which was but matter of escript is now become by the Judgement to be Debt upon Record and of so high a nature that the Judgement being in Force he can never have an Action upon the Obligation which is adjuged in Higgins Case Co. 6 Rep. but Cook doubted and the Plaintiff dying the Court did not resolve APleton versus Baily Mich. 6. Jacobi Apleton as Executor of Apleton brought an Action of Debt against Baily for the Arrerages of diverse Rents as well Copy-hold Rents as Free-hold Rents pertaining to a Mannor whereof the Testator was seised and thereof died seised and the Rents were not paid to him in his life time by reason whereof they belonged to the Plaintiff as Executor And the Defendant though he was requested had not paid against the form of the Statute of the 32 H. 8. And the Court that the Action did not ly for the Arrerages of Copy-hold Land for the Statute of the 32 H. 8. doth not extend to them but only to Rents out of Free Land Secondly It lies not for the Rent of free Land because the Plaintiff hath not shewed in his Declaration that the Defendant had attorned to the Testator in his life And although in pleading it is good to alledge a Feoffment of a Mannor without pleading any Livery or of any Attornment of Tenements but when the Rent of any Free-hold Land comes in Debate it behoves both the Owner of the Mannor and and his Executor that demands it to convey the privity between the Tenant and the Lord which ought to be by attornment for Rents and Services rest not without Attornment which mark PEirson versus Ponuteis Mich. 6. Jacobi The Plaintiff as Executor of Peirson brought an Action of Debt against Jo. Ponuties of London Merchant that he should render to him three and thirty pounds twelve shillings in that the Defendant 5. Oct. 1598. at London c. By his Bill obligatory hath acknowledged himself to owe to the Testator 1518. Florens Polish which then amounted to thirty three pounds twelve shillings to be paid to the Testator Ad solucionem festi purificat c. Called Candlemas day next insuing and to that payment had obliged himself by the same Bill And the Plaintiff avers that Predicti soluciones dicti festi purificat c. Next after the making the Bill were according to the use of Merchants the twentieth of February 1598. Yet the Defendant had not paid the 1518. Florence Polish or the thirty three pounds twelve s. to the Testator nor to the Plaintiff The Defendant pleads Non est factum and found against him and moved in arrest of Judgment that the Declaration was not good because first the payment of Candlemas is not known in our Law but that was not allowed for that which is unknown in ordinary intendment is made manifest and helped by the Averment in the declaration because that payment among Merchants is known to be upon the twentieth of February and the Judges ought to take notice of those things that are used amongst Merchants for the maintenance of traffick and the rather because the Defendant doth not deny it but pleads non factum by which he confesses the Declaration to be true in that averment Secondly it was objected that as the Case is the use of Merchants is not materiall because the Testator by any thing that appears was not a Merchant but it was not allowed because the defendant that bound himself to pay was a Merchant and the Testator ought to take the Bill as the defendant would make it and he chose to make the payment according to the use of Merchants and not according to the Ordinary intercourse between party and party which mark this by the whole Court TAlbot versus Godbold Mich. 6. Jac. Godbold 28 Eliz. sealed a Bill to the Plaintiff made in this manner memorandum that I have received of Edw. Talbot who was the Plaintiffes Testator to the
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
to the estate casts the possession of his Ancestors upon him but a stranger to whom a Copy hold is surrendred hath nothing before admittance because he is a purchasor And a Copy made to him upon which he is admitted is his Evidence by the custome and before that he is not a customary Tenant and so he could not transfer any thing to another and adjudged so according to 24 Eliz Alderman Dixies Case BEdell versus Lull Pasch 7. Jacobi The Plaintiffe declares in Ejectment upon a Lease made by Eliz James of certain Lands The Defendant pleads that before Eliz had any thing one Martin James was seised in fee of it and had issue Henry James and dyed seised by reason whereof it discended to H. J. as Son and Heir and that Eliz entred and was seised by abatement and made the Lease to the Plaintiffe and that afterwards the Defendant as servant to H James and by his command c. The Plaintiffe by way of replication confesses the seisen of M. James And that he being so seised by his last Will in writing devised the said Land to Eliz in fee and afterwards dyed seised by reason whereof she entred by force of the devise and made the Lease to the Plaintiffe and traverse without that Eliz was seised by abatement in manner and form c. And the Defendant demurrs upon this replication and shewed for cause that the traverse was not good and adjudged for the Defendant for the Plaintiffe by his replication need not both confesse avoid and traverse the abatement too for the Plaintiffe made a title to his Lease by the Will of his Ancestor and that proved that he entred legally and not by abatement as the Defendant had supposed And then to take a traverse over makes the replication vitious For a traverse shall not be taken but where the thing traversed is issuable And here the devise is onely the title issuable And it was also held that the traverse was not good as to the manner of it for he should not have traversed without that that he was seised by abatement but it ought to have been without that that he did abate and also if the Plaintiffe had minded to have fully answered the Defendant he ought to have took his traverse in the very same words the Defendant had pleaded it against him to wit without that that he did enter and was seised by abatement which observe The Case concerned Sir H. James to whom the Defendant was Tenant SAunders versus Cottington Mich. 7. Jac. An Ejectment brought of two Houses but the Bill was onely for one and it was filed And the Defendant by his paper book pleaded to both Messuages And the Roll in Court and the Record of Nisi prius were two Houses And there was a verdict for the Plaintiffe and Judgement entred accordingly And a Writ of Error was brought by the Defendant and before the Record was removed the Plaintiffe moved the Court that the Bill upon the file might be amended and made two Messuages And because the Defendant had pleaded to Messuages in his Answer in paper and that the Roll and Record were according it was resolved by the whole Court that the Bill upon the File should be amended and made two Messuages for that Bill which made mention onely of one House could not be the ground of all the proceedings afterwards but it was as if no Bill had been filed and therefore it should be supplied and so had been severall times before the Record was renewed Which observe THe Plaintiffe declared in Ejectment upon a Lease of an House 10 Acres of Land 20 Acres of Meadow 20 Acres of Pasture by the name of one Messuage and ten Acres of Meadow be it more or lesse and upon not guilty pleaded the Plaintiffe had a Verdict but moved in Arrest of Judgement and Judgement was stayed For by the Plaintiffs own shewing in his Declaration he could not have Execution of the number of Acres found by the Verdict for in the Lease there is but ten Acres demised And these words more or lesse could not in judgment of Law be extended to thirty or fourty Acres for it is impossible by common intendment and the rather because the Land demanded by the Declaration is of another nature then that which is mentioned in the per nomen c. For that is only of Meadow and the Declaration is of arrable and Pasture MOore versus Hawkins Mich. 8. Jacobi In Ejectment after issue Joyned upon a not guilty pleaded the cause came to be tried before Brook and Yelverton Judges of Assize in the County of Oxford the Plaintiffe had declared of divers Messuages and divers Acres of Land lying in three Villages in the said County And at the tryall before the Jury was sworn Walter the Defendants Counsell put in a Plea that after the last continuance to wit such a day in Trinity Terme before the day of Assize to wit the 20. of July the Assizes being held at Oxford the 21 of July the Plaintiffe had entred into such a Close by name containing eight Acres parcell of the premises specified in the Declaration c. and this Plea was received by the Judges of Assize And afterward in Mich. Terme Yelverton and Walter being of Counsell with the Defendant desired that they might amend their Plea to wit to put in the very Village where the Land did lye into which the entry of the Plaintiffe was because it was but matter of form and not of substance and they were of opinion that the tryall of that new lssue ought to be of all the three Villages named in the Declaration And Yelverton Justice having asked the opinions of all the Judges in Serjeants Inne Fleetstreet related their opinions in the Court the Record of Nisi prius was returned into the Exchequer to wit that it was in the discretion of the Justices of Assize to accept such a Plea as is before and that it might be well allowed as the 10 H. 7. is and it shall stay the Verdict But otherwise it is of a protection for although they allow a protection yet the Judges may take the Verdict de bene esse yet he said that in the 7. E 3. in a Precipe quod reddat a Release was pleaded at the tryal and the Jury found the Verdict but that was the indiscretion of the Judges to allow it when it should not have been allowed And all the said Judges held as he related that the Plaintiffe could not have a replication to that Plea at the tryall for the Justices have no power either to accept a Replication upon that Plea or to try it but onely to return it as parcell of the Record of Nisi prius And they held also that the Plea being put in the Countrey could not be amended in adding the Town in certain in which the Close did lye for it was matter of substance And that the Court of
Writ of Error against Matthew upon a Judgement given in a Quare impedit against the King in the Common Pleas of the Church of A. and the Question was whether a double usurpation upon the King doth so put him out of Possession that he shall be forced to his Writ of Right and it was adjudged in the Common Pleas against the opinion of Anderson that he was put to his Writ of Right but a Writ of Error being brought upon that Judgement in the Common Pleas the Judgement was reversed by the opinion of Popham Yelverton Williams and Tamfeild Fennor being of a contrary opinion and they alleadged two Reasons first because the Right of Patronage and the Advowson it self being an Inheritance in the Crown upon Record the Law will so protect it that no force or wrong done by a Subject it shall be devested out of the King for there is a Record to intitle him but there is no matter of Record against him for a Presentationby a Subject is but matter in fait the which Act although it be mixed with the judicial Act of the Bishop to wit Institution yet it shall not prejudice the King being onely grounded upon the wrong of a Subject and the second Reason was because no man can shew when the Usurpation upon the King should commence and begin for it is not to be doubted but that the King after six Moneths passed if the Incumbent cy might have presented for plenarty is no plea against him and Nullnm tempus occurrit Regi and after that Usurpation upon the King the Court doubted not but that the Patronage was still in the King and Popham said that a Confirmation being made by the King to such a Presentee is good to establish his Possession against a Recovery in a Quare impedit by the King afterwards but that it should not inure to any purpose to amend the Estate of the Usurper for he gaines no Posaession by the Presentation against the King but the Release to him made by the King is void as to so much as is in posaession and during the life of the first Presentee the whole Court did not doubt but that the King might present and then the Death of the Incumbent could not make that to be an Usurpation which was not an Usurpation in his life for his Death is a Determination of the first wrong which will rather help then injure the King and Tanfeild said that so it had been resolved in the Common Pleas 23 24 Eliz. in one Yardleys Case for in that Case there was not any Induction for which reason Judgement was not entred but they were all of the same opinion as the Court then was and onely 43 E. 3. 14. 14 E. 3. and 18 E. 3. are against it and Popham said that a Quare impedit was by the Common Law but it was onely upon a Presentment to wit Induction but if the Incumbent was to be inducted then at the Common Law a Writ of Right of Advowson onely lies DIgby versus Fitzch Trin. 14. Jacobi rotulo It was said in this Case by Justice VVarburton that the Presentment is the Posaession in a Quare impedit as in Rent the receiving and in common the taking of the profits and in a Quare impedit one ought to shew in his Title a Presentation either by himself or one of those under whom the Plaintiff claimes as in a Writ of Right of an Advowson one must shew a Presentation in himself or in his Ancestors whose Heir he is plenarty in a Quare impedit shall be tried by the Bishop for the Church is full by Institution onely in common persons Cases but in the Kings Case the Church is not full untill the Clerk be inducted but whether a Church be void or not shall be tried by the Countrey for of Voidency the Countrey may take notice Actions upon Replevins IF the Cattel be distrained the party that owes them may have a Replevin either by Plaint or Writ at his pleasure and if it be by plaint in the countrey and the Bailiff return to the Sheriff that he cannot have the view of the Beasts to make deliverance then the Sheriff ought to inquire of that by Inquest of office and if it be found that the Beast be not to be had then he ought to award a Withernam and if the Sheriff will not do it then an Attachment shall issue against the Sheriff to the Coroners and after that a Distresse and if a Withernam be granted and a nihil returned upon the Withernam he shall have an alias plures and so infinitely and a second deliverance lies after a Withernam and note that sometimes a Withernam lies after a Withernam as when the Plaintiff is non-suit and after a Return habend and that the Beasts are not to be found that the Beasts of the Plaintiff are taken in Withernam and the Plaintiff appears and alleadges that the Defendant had the cattel first taken and prayes Delivery And if the Defendant when the Sheriffe comes to make replevin of the cattel claims property then at the return of that writ another writ de proprietate probanda shall issue to the Sheriff by which writ the Sheriffe is commanded that taking with him custodibus placitorum c. he shall enquire of the property And if it be found that the property was to the Plaintiff then a redeliverance shall be made the Plaintiff and an Attachment against the Defendant to answer for the contempt in taking and unjustly deteyning the cattell of the Defendant appear upon the plures withernam he shall gage deliverance presently And if the Defendant in Court claims the property and it be found against him the Plaintiff shall recover the value of the cattell and his dammages And if the Defendant plead in abatement of the writ that the property is in the Plaintiff and one other c. and the Plaintif confesse it by which the writ shall abate by an award upon the Role and a return habend be awarded to the Defendant yet the Plaintif shall have a new replevin and the return shall not be irreplegiable for the Statute of Westm the second doth not help a false writ or abatement of a writ but the Plaintif may have a new writ from time to time but it helps non-suits in replevin for if he be non-suit he shall not have a new replevin but a writ of second deliverance And if the Defendant upon the return habend adjudged for him cannot have the return of the Beasts and the Sheriff returns upon the return habend that the cattel first taken are dead he may have a Scire facias against the pledges and upon a nihil return upon that he may have a Scire facias against the Sheriff for insufficient pledges are no pledges and the party may relinquish his withernam and fall upon the pledges or the Sheriffe And if cattell be put into a Castle or Fortress the Sheriffe
because he doth not shew from what place nor to what place the passage or way is for although a way be in grosse yet it ought to be bounded and circumscribed to some certain place especially when it appears to ly in usuage time out of mind for that ought to be in a place certain and not in one place to day and another to morrow but constant and perpetuall in one place Thirdly the Plea in Barr is not good because he doth not shew what manner of passage it was whether a Foot-way or Horse-way or Cart-way and therefore it is altogether incertain and Judgement given accordingly TRoughton against Gouge Mich. 7 Jacobi An Action of Trespass brought for entring into the Plaintiffs Close called Wild Marsh and for mowing and cutting five Loads of hay to his damage of c. the Defendant saith that the Close aforesaid did contain twelve Acres whereof a long time before the Trespasse done and at the time the Mayor of c. of Lincoln were seised in Fee and being so seised Leased it to the Defendant for years before the Trespass committed by reason whereof he entred and was posaessed untill the Plaintiff claimed by Deed of the Maior c. for life whereas nothing passed and entered and the Defendant the time aforesaid re-entred as it was Lawfull for him to do the Plaintif replied that the Close in which the Trespass is supposed to be done contained one Acre and three Roods and abutts it East West North and South and one of the abutnals were upon the twelve Acres mentioned in the plea in Barr and concludes it is another Close the Close mentioned in the Plea in Barr containing twelve Acres whereupon the Defendant demurres and the Court were of opinion at the first opening the matter that the replication was not good because it answers not to the matter supposed in the Barr for when the Plaintiff in his Declaration gives the place a certain name as he hath and the Defendant by his Plea in Barr agrees the place as here he doth to wit that the Close aforesaid to wit Wild Marsh is the inheritance of the Mayor c. and he as Lessee to them for years makes a Title to himself the plaintiff ought to answer to the Title or avoid it which he doth not by his replication for the plaintiff by that indeavors to assign a new place which he cannot do when they are agreed of a place before and therefore he ought to have pleaded that there were two Closes called Wild Marsh the one containing twelve Acres as the Defendant had alledged and the other containing one Acre and three roods whereof the Plaintiff was seised and that the Close where the Plaintiff supposed the Trespass to be committed and the close called Wild Marsh contained one Acre and three roods which mark and see 21 E. 4. LEe against Atkinson and Brooks Hill 7. Jacobi An Action of Baâ—tery brought against the Defendants at London for assaulting the Plaintiff to wit in such a Parish and Ward and beate wounded and evill intreated him to his damage of an hundred pounds the Defendant as to the force pleads not guilty and as to the residue that Atkinson the time in which c. at Gravesend in the County of Kent was possessed of a Gelding and being so thereof possessed the Plaintiff the time in which c. at Gravesend c. came to the Defendant to hire the Gelding for foure shillings for two dayes in which the Plaintiff would ride from Gravesend aforesaid to Nettlebed in the same County and from thence to Gravesend within the sayd two dayes by reason whereof the Defendant for the consideration aforesayd the time in which c. lent the Gelding to the Plaintiff who had it and in a direct line rode for the space of a mile to Nettlebed aforesaid upon the Gelding untill the Plaintif the time when c. intending to deceive the Defendant of his sayd Gelding went forth of his way to N. and rode towards London by reason whereof Atkinson in his owne right and Brook as his servant came to the Plaintif and at the same time in which c. required the Plaintif then riding upon the sayd Gelding towards London to deliver the Gelding which he refused to doe by reason whereof Atkinson in his owne right and Brook as his servant and by his command the time in which c. to repossess himselfe of the sayd Gelding layd hands upon the Plaintif and took him from the Horse back and would have taken the Gelding from the Plaintif by reason whereof the Plaintif did by force and Armes assault the Defendant and by strong hand kept the Gelding by reason whereof the Defendant did defend the possession of the Horse against the Plaintif as it was lawfull for him to doe And further say that if any damage hapned to the Plaintif it was of his owne assault and in defence of the possession of the Gelding and Traverses that he was not guilty in London or any where else out of Kent c. and the Plaintif demurs and adjudged for the Plaintif for the Battery is confessed and did arise from the evill behaviour of the Defendant for it appeared by their owne Plea in barr that the Plaintif had hyred the Gelding for two dayes and that they within these two dayes disturbe the Plaintif of his possession of the Horse and thrust him off his back which was not lawfull for the Plaintif had a good speciall property for the two dayes against all the World and although the Defendant pretends that the Plaintif had misbehaved himselfe in riding to another place then was intended yet that was to be punished by an Action of the Case but not to seise the Horse Which observe KNieveton against Roylie Mich. 8. Jacobi An Action of Trespass brought for breaking the Plaintifs Close called G. in Woodthorpe in the County of Derby to the damage of c. The Defendant pleads that the Close was known as well by the name of G. as by the name of D. And that it was and had been time out of minde parcell of the Wigenworth and pleads his freehold in the Mannour The Plaintif maintaines his Declaration and traverses that the place where c. was not parcell of the Mannor and upon this they are at Issue and a Venire facias awarded of Woodthorpe onely and moved in Arrest of Judgment by the Defendant the Verdict being for the Plaintif and urged that it was a mistryall for the Venire facias ought to have been as well of the Mannor as of Woodthorpe for although the parties be agreed that the place where the Trespass was committed lyes in Woodthorpe yet that being supposed indeed to be parcell of the Mannor of Wigenworth the Venu of the Mannor by intendment have a more perfect and better knowledge of it then the Villiage of Woodthorpe onely which was granted by the whole Court and a new Venire awarded to
in the name of Baptisme onely it would be otherwise and secondly although the party had admitted her to have the same name yet the Sherff in pleading had taken expresse Conusance of the contrary and had made it appear to the Court that it was not according to his authority and therefore he shall be punished but the whole Court was of a contrary opinion for first the Scire facias was according to the Judgement in the Common Pleas and well then might all the subsequent Processe be according in course of Law but if the Husband had come upon the Scire facias and shewed how that she was covert then the Action ought to be against both of them and secondly the parties themselves in all the proceedings throughout have all admitted that she is the same person and that she had the same name and therefore this differs from the 10 E. 4. 15. and therefore they shall be concluded from saying the contrary and although the Sheriff had shewed the marriage that was but a bare allegation and suggestion of the Sheriff and it appears not judicially whether it were so or no and thirdly it would be dangerous for the Sherif to return a Non est inventus for because the parties have admitted her name to be so in all the proceedings the Sheriff shall be estopped also as the 3 H. 7. 10. and then an Action of the Case would ly upon the false Return or if the Woman should be in the company of the Sheriff and the party shew her to the Sheriff she might escape CArrill against Baker Trin. 11 Jacobi The Plaintiff brough an Action wherefore by force and Arms he entred into his Warren and digged his Land and chased his Conies and took them the Defendant pleads to all except to the entring the Warren chasing the Conies and digging the Land not guilty and as to the entring of the Warren chasing of the Conies and digging the Land he pleads an especiall Justification to wit that he had Common there time out of mind and because the Plaintiff stored the Borrows there with Conies and made new holes by reason whereof the Defendants sheep feeding there fell into them to their great damage the Defendant did with a Ferret chase the Conies and stopped up the holes with the earth digged out c. and upon that Plea the Plaintiff demurred and George Crook was of opinion that it was not a good justification and the Question was single whether a Commoner might drive out Conies which surcharged the Land and he conceived he could not for the Freehold and possession of the Land is in the Terr-Tenant onely and the Commoners cannot intermeddle with it for a Commoner hath onely the grasse of the Land and not absolutely neither to do with it what he pleases but onely to take it with the mouths of his Cattel and for this see 12 H. 8. 2. a. and 27 H. 6. 10. and 13 H. 8. 16. the espleas in a Quod permittat is alledged in taking the grasse with the mouths of his Beasts and for that see 22 Assis 48. 10. E. 4. 4. and 46 Ed. 3. 23. if a stranger put in his Cattell the Commoner cannot have an Action of Trespass and 13 H. 8. 15. ruled that if a Commoner dig the Land to make a trench he is a trespassor but he may drive out or distrain for doing damage and 15 H. 7. 12. 13 H. 7. 13. and 12. H. 8. 2. a. because after a manner he hath interest in the grasse which is spoiled and consumed by the Cattell of the stranger but although he may drive out and distrain the Cattell of an estranger yet he cannot meddle with the Lords Cattel or the Terr-Tenants although there be more then reasonable as in Fitzherberts Na. brev 125. D. and 8 E. 3. 30. if the Lord surcharge the Common The Commoner may have an Assise against the Lord and if he be a copy-holder he shall have an Action of the case 9 Rep. 112. but the Lord may distrain H. 9. Ja. Kings Bench a prescription for a Commoner to kill Conies of the Lords is not good and he cited Pasch 43 Eliz. Kings Bench rotulo 234. Belly and Laughorns Case the Lord may use the Sale as he pleases but as his Case is the Commoner although Tenant of the Land cannot kill the Conies with his Ferret For a free Warren in such a precinct is a charge upon the Land in what hands soever it comes but if he hath a Warren adjoyning and the Conies come into the Lands of another out of the Precinct then he may kill the Conies and he cited Boslers and Hardies Case in the Common Pleas and for an express authority he cited Old and Conies case Hill 29 Eliz. and Sir Robert Fitcham he was against it and he agreed he could not kill the Conies but as to the digging he took this difference if a Commoner makes any thing de novo in the Land he is a Trespassor as it is adjudged in the Case of a trench before and the like but if a commoner amends and reforms a thing abused it is no Trespass and therefore if the Land were full of Mole hills he may dig them down 13 H. 8. and 42 Assis if the Lord make a Hedge the commoner may pluck it down 23 E. 3. 6. a. See if the Lord make a Pond in the Land the commoners may dig and let the Water out and therefore holes that were made long in a hurt and Damage to the Land the commoner may put the earth digged out again into its place Secondly the Defendant hath shewed that the Cony holes were made by the Plaintiff himself and he shall never take advantage of his own wrong and Thirdly the Law will allow every man to preserve his inheritance and it cannot be preserved any other way for if he should bring his Assise yet he in that shall recover but Seisin and no Reformation of the Trespass and wrong done and the opinion of the Court seemed to incline for the Plaintiff and Doddridge Justice said that a Lord or his Feoffee may make new conie-Borrows lawfully for they are necessary for the preservation of the conies but one fault found by Justice Haughton in the pleading nothing was done for the Plaintif declared for entring into his Warren the Defendant pleads to all but the Warren digging and chasing not guilty and as to the digging and chasing he justifies for common here but answers nothing as to the Warren neither by confession or traverse and therefore all was discontinued as Herlackendons Case is Co. 4. Rep. and to this the whole court Fleming being absent agreed WAldron against Moore Trin. 11. Ja. The Plaintiff brought an Action of trespass against Moore wherefore his Close called Gerleford at Rentesbury in the County of Devon by force and Arms hath broken and entred c. The Defendant pleads that a long time before the Trespass was supposed to be done one
Canterbury shall not be avoidance of the said Canon and he agreed that a Canon against Statute Law or Common Law or any Custome shall not bind the Subject and agreed that so it had been adjudged in this Court But he denyed that the exposition of any Statute belonged to the Ecclesiasticall Court for the Statute is meer temporall though it concern spirituall things and it shall be expounded according to the Rules of the common Law see 5. Edw. 4. Keasors Case And so concludes that this suit was against the Statute of 23. H. 8. For it ought to have its beginning in the Court of the Bishop of London And this exposition of the Statute is made for the Defendant 94. Canon which was ex presly made against the Court of Arches and inflicts suspension by the space of three moneths upon the Judges which offend against it from their Office and awarded that Prohibition shall be granted and with that agreed Warburton and Foster Justices but Walmsley Justice was of contrary opinion that is that no Prohibition shall be granted by the Court of Common Pleas but in case where the Suit is there hanging And this was objected also by the Civilians And the opinion of the Judges of the Kings Bench cited to prove it but prohibition was granted that notwithstanding And to the objection that the Arch-Bishop of Canterbury may have a consistory in the diocesse of every Bishop this was denyed but only where he was the Popes Legate and thenas Legate heshall have Jurisdiction of all the Diocesse of England it was agreed that there were three sorts of Legats First Legates a Latere and these were Cardinalls which were sent A Latere from the Pope The second A Legate born and these were the Arch-Bishops of Canterbury Yorke and Ments c. And these said Legates may cite any man out of any Diocesse within their Provinciall then there is a Legate given and these have Authority by speciall commission from the Pope Daringtons Case DAringtons Case was cited before the high Commissioners of the King for maintenance of the opinion of Brownisme and for slandering of one Mr. Eland a Minister and also of the Judges of the Common Law and was sentenced that for the first he should make his submission before the said Commissioners and also for the second that he should make submission to Mr. Eland and confesse his offence to him and pray that he will forgive him and so for the third also that he should make submission and that he shall be committed to prison untill he perform the said sentence and put in security that he will not here after make a Relaps in any of the said offences and after he made submission for the first offence according to the sentence and upon complaint to this Court Habeas Corpus was awarded to the Keeper of the Prison in which he was to bring in his Body with the cause of his taking and detaining and he certified the causes aforesaid but not the Submission and these were the causes of the taking and detaining of the said Darington and it was prayed by Serjeant Nicholls that he might be delivered and Coke cheife Justice said that the Ordinary by the common Law nor by the Statute De circumspecte aegatis cannot imprison for any offence though it be for Heresie Schisme or other erronious crime whatsoever and then by the Statute of 5. R. 2. chapter 5. 2. Statute It was awarded that Commissions should be directed to the Sheriffs and others to apprehend such which should be certified by the Prelates to be Preachers of the Heresie and the Favourers Maintainers and abettors to keep them in strong Prison untill they will justifie themselves by the Law of the holy Church But this was repealed by 5 Ed. 6. 12. And 1 Eliz. 1. And also by the Statute of 2 H. 4. 15. It was ordained that none shall preach or write any book contrary to the Catholique faith or determination of holy Church nor shall make any conventicles of such Sects and wicked Doctrines nor shall favour such preachers Every Ordinary may convent before him any person suspect of Heresie An obstinate Heretick shall be burned in an open place before the People and this Statute was also repealed by 25 H. 8. And 1 Eliz. 1. By expresse words and then by the Statute of 1. H. 7. 4. Power is given to all Arch-Bishops Bishops and other Ordinaries having Ecclesiasticall Jurisdictions to commit Clarks Preists c. To Ward and Prison for Adultery Fornication Incest or any other fleshly Incontinency there to abide for such time as shall be thought to their discretions convenient for the quality and quantity of their Trespas and these were all the Statutes which give Authority to the Ordinary to imprison any man And when the Statute of 1 Eliz. 1. Repealed the first two Statutes of 5 R. 2. 5. and 2 H. 4. 15. It was not the intent that these offences should be unpunished but the Queen would not leave and trust the Bishop which was but a man and when he is made Bishop cannot be removed with such generall and uncontroulable Power and Authority and for that this power and Authority was transferred by the said Statute of 1 Eliz. 1. To high Commissioners which the Queen might countermand at her pleasure and appoint new and so it was transferred from one to many and this Stature did not intend to give other Authority to high Commissioners to imprison any man which the Ordinary himselfe had not before the making of the Statute of 1 El. 1. And it was not the intent of the makers of the said Statute and Act of 1 Eliz. To alter any Lawes but to transfer the power of one to others and it was resolved that for working upon holy dayes the party shall not be punished before the high Commissioners in Reimores Case and it was also resolved in Symsones Case by the Lord Anderson cheife Justice of the Common place and Glanvile they then being Justices of Assise in the same place that a Pursivant came with a Warrant of the high Commissioners to attach one by his Body for Adultery in a lay mans house and was sâ—ain with great deliberation and conference had with the other Judges that that was no Murder but Man-slaughter for they could not attach the Body of any man but ought to proceed by citation and excommunication But it was agreed that they might imprison for Brownisme for that was Herezie besides he maintaind that if the King do not govern his subjects as he ought that his Subjects may and ought to depose him and other such abhominable opinions and further that he might fine for that and he said that one Elyas Brown was hanged for that in the time of the last Queen for that that it doth not appear by the return that Darington hath himself conformed they could not deliver him for they ought to give credit to the return according to 9
twenty yeares if the Husband and wife and the Issue male of their Bodies so long live and it was there adjudged that the Lease doth not determine during the lives of any of them for in this disjunctive it is referred to an Intiâ—e Sentence and is as much as if he had sayd if the Husband or the Wife or the Issue of their Bodies so long live Hillary 7. Jacobi 1609. In the Common Bench. Borough of Yarmouth THE King John by his Letters Patents granted that the Burrough of Yarmouth should be incorporated and the grant is made Burgensibus without naming of their Successors and also he granted Burgensibus teneri placita coram balivis and in pleading it was not averred that there were Bailiffs there and it was objected that the Burrough cannot be incorporated but men which inhabite in that but to that it was resolved that the Grant is good and the Lord Coke sayd that he had seen many old Grants to the Citizens of such a Town and Good and so that the Grant Burgensibus that the Bâ—rrough should be incorporated being an old Grant should have favorable construction but the doubt was for that that it was not averred that there were Bailiffs of Yarmouth and if a Grant to hold Pleas and doth not say before whom the Grant is voyd according to 44 Ed. 3. 2 H. 7. 21 Ed. 4. and for that it was adjourned But the opinion of all the Court was that the Grant made Burgensibus was good without naming of their Successors as in the case of Grant civibus without more Note that Executors or Administrators shall not finde speciall Bail for the Debt of the Testator though that the debt be for a great sum as three thousand pound or more for it is not their Debt nor his Body shall not be lyable to execution for that 43 Ed. 3. Suit was commenced hanging another Writ it is a good Plea though that the Writ was returnable in the Common Bench and the last Suit was begun in a Base Court but if so be and doth not appeare to this Court that the Plaintiff begun suit in a base Court for the same Debt for which the Suit is here begun Attachment shall be awarded see 2 H. 6. 9 H. 6. but this ought to appear to the Court by Affidavit c. Hillary 7 Jacobi 1609. In the Common Bench. Chapman against Pendleton IN second deliverance the case was this A man seised of a house and fifty Acres of Land held by Rent fealty and Harriot service enfeoffs the Lord of three Acres parcell of the Land and after infeoffs the plaintiff in this Action of three other Acres and upon this rhe sole question was if by this Feoffment to the Lord of parcell Harriot service is extinct or not Harris Serjeant conceived that the Harriot remaines for he sayd that it is reserved to the Reversion of the Tenure but it is not as anuall Service but casuall and it is not like to rectify for that it is incident to every service And by 43 Ed. 3. 3 It is no part of the service but Improvement of the service And Bracton in his Tractate De Relevijs 2 Booke 2 7. saith that Est alia prestatio vocata Harriot c. Que magis fit de gratia quam ex Jure and it is not like to a releife see the Booke at large and he agreed that if the Tenant had made fifty severall Feoffments to fifty severall men that every of them shall pay a severall Harriot as it appears by Bruertons Case 6 Coke 1. a 34. Ed. 3. Harriot 1. 2 Ed. 2 Avowry 184. 〈◊〉 Ed. 2. Ibidim 206. 11 Ed. 3. Avowry 101. 24 Ed 3. 73. a 34 Assise 15. 22. Ed. 4. 36. 37. 29 H. 8. Tenures 64. But he grounded his Argument principally upon Littleton 122. 223. Where it is sayd that the reason why Homage and Fealty remaine if the Lord purchase part of the Tenancy is for that that they are of annuall Services and it seemed to him that Littleton is grounded upon 7 Ed. 4. 15. Extinguishment 2. 8 Ed 3. 64. 24. Ed 3 B. Apportionment last case which accords the reason and upon this he concluded that for that that the Harriot is not annuall it shall not be extinct by the Feoffment but remaines but he agreed if a man makes a Lease for years rendring Rent and parcell of the Land comes to the Lord the Rent shall be apportioned if it be by Lawfull means as it appears by 6 R. 2. F. Quid Juris clamat 17. Plesingtons Case and 24 H. 8. Dyer 4. 1. Rushdens case by which c. Nicholls Serjeant that it hath been agreed that it is intire service and that then he concluded upon that that it shall be of the nature of other intire services as it apperrs by 2 Ed. 2. Avowry 184. and 34 Ed. 3 F. Harriot 1. 5. Ed. 2. Avowry 206. And he agreed that in the case of Littleton the Homage and Fealty remain and the escuage shall be apportioned but this is not for the reason alledged in Littleton that is for that that they are not annuall services but for that that the Homage is incident to every Knights service and as the Lord Coke sayd fealty is incident to every service in generall and the Tenant shall make Oath to be faithfull and loyall to his Lord for all the Tenements which he holds of him and the reason for which the Escuage shall be apportioned is for that that it is but as a penalty which is inflicted upon the Tenant for that that he did not make his services as it appears by the pleading of it and shall be apportioned according to the Assesment by Parliament and by 22 Ed 4. It appears that this purchase by the Lord is as a release and if the Lord release his services in part this extincts the services in all and he sayd there is no difference where an intire service is to be payd every third or fourth year and where it is to be payd every year as to that purpose and yet in one case it is annuall and in the other it is casuall and yet in both cases if the Lord purchase parcell of the Land of the Tenant all the intire services shall be extinct and gone though that they are to be performed every third or fourth year by which c. Foster Justice that the Harriot is entire service and for that though that it be not annuall it shall be extinct by purchase of parcell of the Tenancy by the Lord as if a man makes a Feoffment with warranty and takes back an Estate of part the warranty is extinct as it appears by the 29. of Assise so if a man hold his Land by the service to repaire parcell of the fence of a Park of the Lords and the Lord purchase parcell of the Tenancy the Tenure is extinct as it appears by 15 Ed. 3. And it is