Combes versus Inwood.

THE first day which I sate at the Bench, after the day in which I was sworn,Ejectione suma. A Conve [...] ­ance deliver­ed to be enrol­led, and yet not in [...]lled, shall be ac­counted a Record. i. e. Thursday the twenty second of May; A Iury was at the Bar from the County of Surrey, in an Ejecti­one firmae, brought by Combes against Inwood, upon a Lease made by one John Stockwood, which was Heir to one Edward Stockwood, and was for a Farm in Chertsey, called Hayl­wick: And upon Evidence the Case appea­red to be th [...]s.

Edward Stockwood was seised in fee, and about the 29 Hen: 8. this Land was supposed to be conveyed to King Hen. 8. in fee, for the enlargement of the Honour of Hampton; but no Deed, nor any other matter of Record was in being to prove this originall Conveyance, and many Arguments were used to prove that there was never any such Conveyance, because there was not one of any such conveyance nam­ed in the Act of 31 H: 8. But of the other part it was proved, that this Land had continued in exchange as the Land of H: 8. all his life, by di­vers accounts; and that it had been enjoyed by divers Leâses made by Edward 6. and Queen Elizabeth, and Rent paid for them: And that in the year 16 Eliz. she granted it in Fee-farm to the Earl of Lincoln, and under that Title the Land had been quietly enjoyed untill of late time.

And the Court delivered their opinion, That it there were a Deed by which Stockwood conveyed the Land to H: 8: and that brought into the Court of Augmentation; although this Deed be not found nor inrol­led, yet it is a sufficient Record to intitle the King, and it is a Record by being brought into Court, and there received to be inrolled. And the Report of the case in Lord Dye [...], fol: 355.19 Eliz. was not as it is there reported, for it was for Bormi [...] Inne, and it was adjudged a good conveyance; and in this case the Iury found for the Defendant.

Trin. 14 Jac. Rotulo 769. Steward versus Bishop.

Words. STeward brought an Action upon the Case for certain words against Bishop, because that the Defendant said, Steward is in Leicester Gaol for stealing an Horse and other Cattell, the Defendant pleaded not guilty, and the Iury found for the Plaintiff, and Damages to thir­ty pounds: And it was moved in Arrest of Iudgment by Serjeant John Moore, that the Action doth not lye, for the words do not affirm and Deed, or Act, or Offence, but that he was in prison upon suspition of an Offence: And it is the Ordinary speech and communication by way of interrogation; What is such a one in prison for? For stealing: And all the Kalenders are, such a one for stealing of a Horse, such a one for Murther, Vide Coke lib: 4. he is detected for Perjury, is not a­ctionable; And to say such words of a Iustice of Peace, or an Attorney, peradventure it shall be otherwise, yet it seems all one, if it touch not him in his Profession. To say that I. S. was in Newgate for forging of Writs, will not maintain an Action, and so adjudged in Nowels case, and Iudgment was given that the action will not lye.

Pasch. 15 Jac.

ONe brought and Action upon the Case, and counted, that the De­fendant (in consideration that the Plaintiff would take such a wo­man to his Wife) promised to pay twenty pounds when he shall be therto requested after the marriage,Request, where it shall not be alled­ged. and that the Plaintiff such a day had married the said Woman, and the Defendant (though often reque­sted) did not pay the aforesaid twenty pounds: And it was moved in Arrest of Iudgement, that he had not shewn any particular request; but yet Iudgment was affirmed for the Plaintiff, for this action is grounded upon the promise, which imports Debt, and not upon any col­laterall matter, which makes it a duty by the performance of a colla­terall Act upon the request.

Trin. 15 Jac. Resolved upon the Statute of 3 H. 7. Cap. 2.

VPon divers Assemblies at Serjeants Inne of all the Iudges to con­sider (by the direction of the Star-Chamber) whether by the Sta­tute of 3 H: 7. cap: 2. the taking of any Woman against her will, and the marrying or deflowring of her, be Felony, or only of such a Woman which hath Substance, or Goods, or Lands; or otherwise be an Heir ap­parent, the body of the Act seems to be generall, viz. He that shall take any Woman so against her will: And it was said, that it were a great inconvenience that it shall be Felony to take an Heir apparent of a [Page 3] poor man, or to take a Woman which hath but a very small Portion, and of mean Parentage, and (as it was said) of a Woman in a red Peticote, and that it shall not be felony to do and commit the said Of­fence in taking the Daughter of an Earl, or some other great man of the Realm. But it was resolved that the body of the Act was incorpo­rated to the Preamble, for it had been adjudged, that if one take a Woman with an intent to marry her, or deflower her, &c. and doth it not, this is not Felony, and this rests only upon the Preamble; then it shall have relation as well to such a Woman which is before named, viz. Maid, Widow, or Wife, having substance, and to an Heir appa­rent, and to no other.

And so it was taken in a Case in the Star-Chamber by the like reso­lution, 10 Jac. between Baker and Hall, and the Lord chief Baron said,Baker and Hall. that it had been adjudged, that no Appeal did lye upon this Statute, and all the Presidents in effect warrant this resolution, vide Stamford, fol. 37.

Statute 1 H. 4. Cap. 14.

COnsideration upon the Statute 1 H: 4. Cap: 14. was had, how the word Appeals shall be intended before the Constable and Marshall.

And 26 Eliz. Doughties Case,Doughties case. Petition was made to the Queen by the Heir to make a Constable and Marshall, but she would not.

Admitting that the King get a Commission of the Office of a Con­stable and Marshall, whether the King may have any remedy before them by Indictment, or information by the Attorney generall.

Mich. 15 Jac. Andrews versus Hacker.

AN Assise of Darrein Presentment was brought by Andrews a­gainst Hacker, and the Earl of Salop, Assise. and against the Arch-bishop of York for the Church of Gothur in the County of Nottingham; the Assise was brought to the Bar, and when the Iury appeared, the Arch-bishop made default, and the others appeared, and pleaded in abatement of the Writ, that the same Plaintiff had before brought a Quare impe­dit against the Defendants for the same Church, which Writ was re­turned, and that they did appear to defend it.

First, we must know that this Assise shall be taken only in the Com­mon Bench, vide Mag: Char: cap: 13.Assize of Dar­rein present­ment, abate by a Quare [...] ­pedit. then the Arch-bishop making de­fault, and the Assise being awarded against him by default, if the other Defendants plead to the Assise, yet the Assise shall not be presented, be­cause an Assise shall not be taken by parcels, and therfore a Resum­mons shall be awarded against the Arch-bishop, and the same for the Iury.

But the other Defendants pleading their Plea to the Writ, the Court was of opinion that it was a good Plea in abatement of the Writ, for the Quare impedit is a Writ of a higher nature, vide Regist: [Page 4] fol: 30. That if he against whom an Assise of Darrein presentment is brought, brings a Quare impedit, the Darrein presentment shall a­bate: And the Statute of West: 2. cap: 5. saies, it may be in the Ele­ction of one, whether he will have an Assise of Darrein presentment, or Quare impedit, ergo he cannot have them both.

And if an Assise of Darrein presentment be brought, and after that a Quare impedit for one avoidance, the Assise shall abate, for the Quare impedit is higher in his nature, that is, for the right, and for the pos­session. And Iustice Warburton vouched 10 Ed: 3: Statham in Dar­rein presentment 3. If a man shall have a Quare impedit, and also an Assise of Darrein presentment, of one and the same Advowson, pending at one and the same time, the Darrein presentment shall abate, and the Quare impedit shall stand, because that it is of an higher nature. By Hank and Hill, it was urged that the Quare impedit was not depend­ing untill he had appeared, and it is not pleaded that he did appear, but vide 2 Ed: 4. fol: that it is depending when it is returned. And in a Quare impedit by the Earl of Bedford against the Bishop of Exeter, Bedford versus the Bishop of Exeter. it was adjudged Pasch. 15 Jac. that he could not have two Quare im­pedits of one Church, and for one avoidance. And in this Case the whole Court agreed that the plea was good in abatement of the Writ, and awarded that the Assise should abate.

Mich. 14 Jac. Rot. 3297. Shaw versus Taylor.

Wigorn. Replevin. Where the Lord shal lose his Heriot when the Te­nant have not any Beasts. BRidget Shaw brought a Replevin against George Taylor, for the ta­king of an Horse at Northfield, in a place called Little falling; the Defendant makes Cognizance as Bayliff to Sir Thomas Gervas, be­cause that one Richard Shaw was seised of an House and divers Lands, (of which the place where, &c. was parcell) in his Demesn as of Fee, and them held of the said Sir Thomas Gervas, as of his Mannor of Northfield, by Fealty and Rent of twenty pounds, and rendring and paying after of every Tenant (dying therof seised) one Heriot, and al­ledged Seisin, and that he died seised: And that for one Heriot so due, and not delivered, he distrained in the place in which, &c. as within the Fee. The Plaintiff plead in Bar to the Avowry, and takes the whole Tenure by protestation, and for Plea saies, that the said Ri­chard Shaw at the time of his death had no Beasts, wherof a Heriot might or could be rendred, upon which the Defendant demurrs.

And upon the matter it seemed to the Court, that if he had not any Beasts, than the Lord must lose it; for it is a casuall thing if he have it, unlesse the Custom or Tenure be to have the best Beast, or such a summ: And if he had conveyed it away, and so prevented him by any fraud, then the Statute of 13 Eliz. had provided remedy, but where there is nothing of any such thing, which may be rendred at the time of the death, there the King must lose his right. And it was resolved by the Court that the Cognizance was not good, for it ought to be cer­tain, i. e. for the best, or two best Beasts, and not generally for one He­roit, and not shewing what thing in certain, vide 3 Eliz: Dyer 199. [Page 5] A Heriot is Quaedam prestatio, &c. and see there the Plea, that there was no Beast at the time of his death: And the opinion of the Court was also, that the Bar to the Avowry was not good, because the Is­sue is tendred to a thing not alledged, for in the Avowry he made not mention of any beast, but generally of one Heriot, which is not certain; And therfore it was awarded that the Plaintiff should recover, and should have a return, &c. and Damages.

Pasch. 14 Jac. Rot. 907. Norris versus Stapes.Goldsbo­rough.

RObert Norris and Thomas Trussells Warden [...], and the Society of Weavers, in the Burrough of Newbury, De [...]. 1. By lawes. in the County of Berk­shire, brought an Action of Debt for five pounds against John Stapes, and Count, that Queen Eliz. by her Letters Patents, 14. of Octob: An: 44. at the request of the Inhabitants there using the Art of Wea­ving, and to the intent that Corruption therin might be taken away and avoided, &c. did grant to all Weavers within the said Town to be a Body Politick, by the name of the Wardens and Society, &c: as be­fore, and to have perpetuall succession & power to purchase, to plead, and to be impleaded: And also power to make Laws and Ordinances agree­able to reason, and not in any wise contrary and repugnant to the Laws and Statutes of the Realm, for the well Government of the Society, Apprentices, and Servants, and all using the Trade of weaving or selling of any thing therto belonging within the same Burrough, and power to inflict punishment by Imprisonment, Fine, or Amercement upon the Offenders: And granted further, that the said Wardens and Society shall have the survey of those Lawes, and the benefit of the For­feitures; And that no other person, born within or without the said Burrough, shal exercise the Art of weaving within the said Burrough, if he shall not be admitted therto by the Wardens and Society. And they recite the Act of 19 H: 7. cap: 7. of not putting of any Law or Or­dinance in execution, before it shall be allowed by the Lord Chancel­lor, Treasurer, and two chief Iustices, or three of them, or before both the Iustices of Assise in their Circuits, upon pain of forfei­ting forty pounds: And shew that one Cuthbert Goodwin, and John Hame Wardens of the said Society, with the greater part of the said Society, 1. Maij 45 Eliz. at the Guildhall within the said Burrough, made divers Lawes and Ordinances for the Go­vernment of Weavers; and that the 18 Novemb. 1 Jac. the said Or­ders were confirmed by the Lord Chancellor, Lord Treasurer, and Lord Anderson one of the chief Iustices, among which one was, that none should use the Art of Weaving within the said Burrough, or should have any Loom in his house or possession, to have any benefit therby, unlesse he had been an Apprentice to the said Art within the said Burrough, for the space and term of seven years, or had used the said Art within the said Burrough for five years before the making of the said Ordinance, or shall be admitted therto by the Wardens and Society, upon pain of forfeiture for every month twenty shillings.

And they further shew, that after the said Ordinance made and con­firmed [Page 6] the Defendant (such a day) before his inhabiting in the said Burrough; and after (such a day) that one William Godwin being then Warden of the Weavers, gave notice to the Defendant of the said Ordinance, and that he afterwards, &c. during five months con­tinued using the said Trade there, and that he had two Looms in his possession, where he had not been an Apprentice, nor used the said Art for five years, as before, &c. by which he forfeited to them five pounds, viz, for every month twenty shillings.

The Defendant pleaded Nil debet, and after Verdict for the Plain­tiffs, it was moved by Arrest of Iudgment, that this Ordinance was not reasonable: and upon Arguments and Conference, without ar­guments at the Bench, it was agreed that the Ordinance was against Law, and Iudgment against the Plaintiffs.

And Lord Hobart in Hil: 15 Jac, declared, that we were all of opinion that Iudgment should be given against the Plaintiffs: And he repea­ted the Case and the reasons of this Iudgment, because the Ordinance was, that none should use the Trade of Weaver, nor have any Loom in the Town, unlesse he had served, &c. before the making of this Or­dinance, so that all Apprentices which serve after shall be excluded, unlesse they shall be admitted by them, which is unreasonable: And the Plaintiffs do not convey to themselves any good Title to be War­dens, but as to the principall point of making such a restraining Or­dinance, the Court did not deliver any opinion.

Mich. 15 Jac. Rot. 2327. Dorrell versus Andrews.

SUsan Dorrell brought an action of Debt against Sir Eusebius An­drews, London. Debt. The Visn of a Town within a Parish. and John Cope for eighty five pounds, and count upon a Lease made by her to the Defendants by Indenture, by which she demised one Capitall Messuage, Mannor, or House called Causton, within the Parish of Dunchurch in the County of Warwick, and all the Stables, &c. in Causton aforesaid.

The Defendant protesting that the Rent was not behind, for Plea saies, that before any Rend arrear the Plaintiff entred into severall parts of the house, and him dispossessed, and upon that they were at is­sue, and the Venice facias was de vicineto de Causton within the Pa­rish of Dunchurch: And it was moved in Arrest of Iudgment, that the Venire facias should be of the Parish only, and not of Causton, for Cau­ston is not alledged as a Town, but the name of a house: And the Court resolved that the Ven. fac, was good, for Causton is alledged as a Town in the Parish of Dunchurch, and that by the addition and generall words in the Demise, in which also there was an exception of part of the House as Mannor-house at Causton aforesaid, so that the house is alledged to be in Causton, in the Parish of Dunchurch, if all be conside­red: And if it appear that Causton is a Town or Village in the Pa­rish of Dunchurch, it will be without any doubt good.

And my Lord Hobart said, that it had been divers times adjudged, that on the Allegation of a thing done at the Town of Dale in the Pa­rish of Sale, that the Ven. fac. of the Parish is good, for though the Pa­rish [Page 7] may contain more Towns, yet it is not to be presumed but that it is of one Continent, if the contrary appear not by the Record, vide for that Pasch: 9 Jac. between the Lord Candish, and Sir George Sa­vill, &c. There was another exception taken to the pleading,Candish and Savill. which I have not transcribed.

Trin. 14 Jac. Rot. 755 Swaine versus Holman.

RIchard Swaine Plaintiff,Brownlow. Dors. Wast. against Thomas Holman and Elizabeth his Wife, brought Wast, and declared of a Lease made: Anno the 8. of Eliz: by the Queen, under the Exchequer Seal, to William Jolliff, Thomas Jolliff, and Elizabeth Jolliff, for three lives, and that William and Thomas were dead, and convey the remainder to the King that now is, and from him to the Plaintiff, and that the Defen­dant Elizabeth took H. to Husband, which did wast, &c.

The Defendants confesse the Lease, death, and marriage as above, &c and say, that the said Holman and Elizabeth his wife, 2. Feb: 40 Eliz. surrendred as well all their Estate of the said Elizabeth, as the Letters Patents, to the intent that the Queen should make a new Lease to the said Elizabeth, and to Humphrey Holman, and to Roger Holman for their lives successively, which surrender the Queen accepted, and the third of Febr: next made such Demise, and this they are ready to aver, &c.

The Plaintiff replies, and joyns Issue upon the Surrender and De­mise in manner and form, and the Issue was tried by a Venue which came from Westminster, and the Iury found this speciall Verdict, viz. the new Lease made the third of Felic: in which it is recited that she had surrendred the Estate, and the Letters Patents, and the Queen as well in consideration of the surrender of the Letters Patents, as in consideration of the payment of twenty Nobles made by the new Lease, and the Iury found that the Demise made the third of Febr: was with the consent of the said Thomas Holman, and that the said Thomas Holman and Elizabeth his wife agreed therto, and held in claiming by the said Demise: And it was adjudged by the Lord Ho­bart, and others the Iustices, that the Plaintiff should have Iudg­ment.

First, the consideration which procured the new Lease is the Sur­render, and the Surrender is not absolute but defeisable if the wife survive, or if the Husband will disagree; and therfore the Lord Ho­bart said, that if Feme Lesses for years takes Husband, and after the Feme takes a new Lease of the Queen for life, this extinguisheth the term; but if the Husband disagree, then the Lease for yeers is revi­ved. And as in Barwicks Case, the surrender of all the Estate where he had made a Lease for years before, or where the Lease which he surrendred was void, the new Lease made [...] consideration therof is vein, for the Surrender which is the consideration, ought to be a good surrender of the former Estate: And therfore if Lessee for life of the Blemise of the King surrender conditionally, and the King reciting [Page 8] that he had surrendred all his Estate, makes a new Lease, this shall be intended an absolute Estate, for a conditionall surrender within three years of the Lease, is not a surrender within the Act of 32 H: 8.

2. Another reason, because that the Free-hold which the Husband had in the right of his Wife, could not be given by this bare as­sent; But if the Lease had been made, de novo, to the Husband and the Wife, then it had been questionable, for the Estate passe by Implica­tion, viz. by a surrender in Law, by acceptance of a new Lease, as in the eighth Report of the Lord Coke, S. Savors Case, but there no Estate of the Husband passe, for by the inter-marriage he was in of the Free­hold with his Wife, in the right of his Wife, and that he gives not by assent, vide 7 H. 7.14: vide 41 E: 3. fol. 19.

3. Another reason was, as this issue is joyned, it is found against the Defendants, for it shall be therby taken and intended of an actuall surrender made by the Husband and Wife, and not of such a surren­der which is operated by a subsequent act in Iudgment of Law, and the reason therof is, because that the surrender of the Estate, and the cancelling of the Letters Patents are pleaded to be done at Westmin­ster, 2 Febr: and the Lease, 3. Febr: so that this Issue is taken upon an actuall surrender: And by Warburton, if issue be joyned upon the Manumission of a Villain, that is not maintained by giving in evidence that the Lord made to him an Obligation, but by the making of him free by Charter of Manumission, vide the Case directly, 25 H: 8. Brook generall Issue 82. vid: Dyer 284. Croucheads Case.

Memorand. That in this case the Jury of Middlesex found the Dama­ges, and the value of the Wast in the County of Dorcetshire, vide Coke liv: 6. fol. 47. Dowdales Case.

Mich. 15 Jac. Rot. 1634. Gibbs versus Davie.

EDward Gibbs brought an action upon the Case against Jenkin Davie, for words spoken in the Welsh Tongue, and declared that the con­ference was had by Baron Snigg with the Defendant, concerning the selonious stealing of three Heisers, and the Defendant is supposed to answer to the question in Welsh, whether Thomas Jackson stole them; If he had them,Case. Welsh words. I should have had them again, but Edw. Gibbs stole them: And upon Not guilty pleaded, it was found for the Plaintiff at Bristoll, And it was moved this Term in Arrest of Iudgment, that the words in Welsh did not signifie stealing, but carrying away upon ones back: And it appeared upon examination of one Mr. Gunter upon Oath, that it is properly the word for carrying, though that there in the intendment of the parties it might be taken for stealing, it being joyned with other precedent circumstances, yet it is not actionable, for it shall be taken in the most favourable construction and best sense, as if one had said, That such a one had the Pox, and forbid one to use his company, it shall not be intended of the French Pox, and no Action lies: And Iudgment was given for the Defendant, yet it was averred in the Count, that the words were spoken in the hearing of them which understood the Welsh Language.

Micih 14 Jac. Rot. 953. Leigh versus Paine.Oxon.

MAtthew Leigh brought an action of Debt upon an Obligation a­gainst Matthew Paine, Debt. which was with condition for the perfor­mance of an Arbitrement, which was of all Actions, Quarrels, &c. de­pending between them: The Arbitrators award that the Defendant should pay to the Plaintiff such a summ,Arbitrement of all Action untill the day of the Awa [...]. &c. for content and in full sa­tisfaction of all Actions, Quarrels, &c. untill the day of the date of the Arbitrement: And upon Demurrer by the Defendant, it was deba­ted whether this was a good Arbitrement, it being that the Arbitra­tor had exceeded his Authority in giving satisfaction for trespasse after the submission, that is, untill the date of the Arbitrement; and it see­med to the Court that it is a good Arbitrement, and that it appears not to the Court that there were any Trespasses or Suits after the submission, and that shall not be intended untill it be shewn by the other part; as in the case of Baspool, Co. lib. 8. fol. 98. where submission was of all controversies, so that the Award be made of the Premisses, &c. there the Arbitrators made an Award of divers particulars, and the Award was good, and he that will avoid it must shew that there were other controversies, & that he gave notice of them to the Arbitrators, for they shal not be bound to arbitrate of more then they have notice of, Dy: 242.19 E. 4.1. vide Summons case, Coke lib. 5 fol: 77: That an Award ought to be reasonable, and to be done between the same parties: And ther­fore the Arbitrement that the Husband and Wife shall levy a Fine where the submission was by the Husband only, is void (but quaere) if it be not good as to the Husband, and vide in James Osborns case, Coke lib: 10. fol: 131. There the case of More and Bedle is bouthed, and is adjudged that where it is awarded that a certain summ shall be paid, and for the payment thereof a stranger shall be bound, it is a good Award, though as to the giving of security by a stranger it is void, and there it is said, if satisfaction be to be given for many things, of which part is out of the Award, yet it is good for them which are sub­mitted unto, vide 42 & 43 Eliz: Newby and Sav: Newby and Sav. An Award to make a release to the date of the Arbitrement, and good if it does not appear that there was other matter. A submission of all matters done till the fourth of September, the Award was of a Release of all matters untill the third of September, and good;Browns case. And this case was vouched to be be­tween Barnes and Grenewell, Trin: 43 Eliz: Rot: 947. vide a case be­tween Hilton and Brown, Trin: 5 Jacobi Rot: 1618. an Arbitrement was made generall in satisfaction of all Controversies Indefinitely without any limitation: And upon Argument upon Demurrer, it was adjudged good, and in this case the Arbitrement will not dis­charge any action which was not submitted unto; and then it is but Surplusage which shall not avoyd the Award, though the Plaintiff hath mine recompence by the Arbitrators, In respect that the Defendant shall be discharged of trespasses untill the making of the Arbitrement: And Iudgment was giuen for the Plaintiff.

Mich. 11 Jac. Rot. 318. Agars versus Lisle.

Case. THomas Agar brought an action upon the Case against Lisle, for stud­ing and converting of a Cow at the Castle of York, the Defendant pleaded in Bar, that the Bishop of Durham was seised of the Town of Darton, in the County of Durham, and prescribe to have a Faire there and Toll, and for not payment thereof, &c. the Cow was taken by the Defendant,Trover and Conversion is justified with­out confessing the Conversi­on. as Servant to the Bishop of Durham, Absque hoc, that he was guilty at the Castle of York, or any where else, &c. And this Case was long depending, and the first point was, if the Defendant had confessed any conversion, for that is the ground of the action, and ought to be traversed, or else confessed and avoided: It was agreed, that the Conversion is the ground of the Action, Brook 1 Mar. Trespass 121. and the Inducement ought to be such as con­tain sufficient matter with the Trespasse, vide 9 E. 4, 5. 19 H: 6.30.22 Then it was agreed,H. 6. 35./8. that when one takes a Distresse and such an action is brought, that is no plea, for that is not any conversion, vide 27 H. 8.22. Coke lib. 10. fol: 46, 47. Request and refu­sall to deliver, is good evidence to prove conversion, but if it be found specially it shall not be adjudged Conversion; and Iudgment was gi­ven for the Plaintiff, because the Defendant did not claim any pro­perty, and did not answer to the point of the Action, for a Distresse is no Conversion.

Hil. 15 Jac. Coble versus Allen.

Trespasse. COble brought an action of Trespasse against Allen for breaking his Close at Barningham, and by the new Assignment divers parcels were assigned, the Defendant as to part pleads that he was seised of an House and thirty acres of Land in Colby, and prescribe to have a way over them to his Common in Barningham; Prescription for a Way, and no place to which, &c. Is­sue joyned up­on the Pre­scription. and for the other parcels prescribe that he and all those whose Estate he hath in the said house in Colby, used to have for themselves and their Families, one way for Pack-horses over the said other parcels of Land in Barning­ham, unto the Kings high way leading to the City of Norwich: And Issue was joyned upon these two Prescriptions, and found for the Plaintiff: But it was moved in Arrest of Iudgment, that the Ve­nue was from Barningham and Colby, and that in the Plea there is not mention of any place where the Common lies, and therefore there is not any tryall; but it was adjudged that the tryall was good, for though that the proper use of a way is to some end, and that ought to be shewn, yet if it be only that he had a way over the Closes of the new Assignment; and no place or end therof is pleaded for what cause, or to what other place, and Issue is taken upon the Prescription, and found, the Prescription is good: And another reason was there by Implication; it is indifferent whether the way lies in B. or in ano­ther Town, and by intendment rather it may be taken to lye in B. and then if by one intendment the tryall may be good, it shall so be in­tended. [Page 11] But when it appears that the tryall shall be in three Towns, and the Ven: fac. is but in two, this is not aided, for it is a Mis-triall, and there must be a Venire facias de novo, but in this case no new Ve­nice can be awarded, and then it is but a Jeofaile for not pleading in which Town the way lies, and then it is alo [...]; and also unto the Kings high way, may be taken that this Kings high way is contigue ad­jacent to these Closes where the way is by Prescription: And for these reasons and causes Iudgment given for the Plaintiff.

Harding versus Bodman.

RObert Harding Plaintiff, against Bodman Defendant,Case. in an action upon the Case, recites, that wheras the Plaintiff brought an a­ction upon the Case against one Lenning for calling of him, &c. the De­fendant upon the tryall, being produced for the Defendant as a Wit­nesse, gave evidence upon his Oath to the Iury,Action upon the Case against one fo [...] giving evi­dence. that the Plaintiff was a common lyar, and so recorded in the Star Chamber, by reason of which Evidence (though the Iury found for the Plaintiff, yet by rea­son hereof) they gave but small Damages to the Plaintiff: And up­on not guilty pleaded, it was found for the Plaintiff; and upon motion in Arrest of Iudgment, it was adjudged that this is a new invention, and that no action lies for it. First, because that it is impossible to be known whether the Iury gave greater or lesse Damages for that or not: Also by this means every man which is produced as a Wit­nesse by one way or other, may be subject to an action upon the Case; and also by any thing which appears to the Court, the Evidence was true, for it was not averred that Revera, that the Plaintiff was not a common lyar, & that he was not recorded for a common lyar, in the Star Chamber; And for these reasons the Plaintiff. Nil capiat per breve, &c.

Trin. 15 Jac. Rot. 1968. Speake versus Richards.

HUgh Speake brought an action of Debt against Edward Richards, Debt. for 523 l 17 s 8d and declare, that Anthony Hall, and Henry Paramour 22. June 13 Jac. became obliged to the Plaintiff by Recogni­zance in the Chancery in 2000 l and that they did not pay it, wherupon the Plaintiff had two Sci. fac.'s to the Sheriff of Middlesex, Debt for mo­ney returned levied by the Sheriff. who return­ed Nihil, wherupon Iudgment for the Plaintiff, and a Levari facias a­warded to the Sheriff of Southampton, returnable 15 Mich. which Writ was delivered to the Defendant, being then Sheriff, to be exe­cuted: The Defendant before the Return levied by vertue of the said Writ, the said 523 l 17 s 8 d of the Lands and Chattels of the said Henry Paramour, parcell of the said Debt, and at 15 Mich. returned that he had levied the said 523 l 17 [...]. 8 d parcell, &c. which summ he had ready at the day to deliver to the Plaintiff in part of satisfa­ction, &c. And that the Defendant (although often required therto) refused to pay the said 523 l 17s 8d (by cause wherof this action ac­crued) nor brought it into Chancery, and to have the parties, &c.

[Page 12]The Defendant as to three hundred and eight pounds, part therof, pleaded Nil debet, to two hundred and fifteen pounds seventeen shil­lings eight pence, residue therof, Actio non: For he said, that after the Writ directed, and before the return, viz. 31 Augusti, 14 Jacobi, the Defendant at Westminster paid it to the Plaintiff, upon the receit wherof, the same day the Plaintiff gave an Acquittance for the same (which he pleads) and therby acquitted and discharged the Defendant, and demands Iudgment if against his own Deed of acquittance he shall be received to demand the said money, wherupon the Plaintiff demurred.

And it was argued by Serjeant Richardson for the Plaintiff, and by John Moore for the Defendant: An exception was taken that he could not plead Nil debet, because that it is a Debt upon Record, for he is charged by the return; He is not estoppled to plead payment be­fore the return, because it is another Action, and the Sheriff might have paid it to the Plaintiff, though he return that he had the money ready to be delivered to him; for if he had after that paid it to the Plaintiff, that was good satisfaction, and he might as well pay it af­ter he had levied it, and before the return, as he might pay it after the return, and then Nil debet is a good Plea.

But it was objected, that by the return 15 Mich. that he had the mo­ney ready (and that after the acquittance) his return should conclude him: And it was said that it would not, for it is in another Action and stands therwith, 22 E: 4.38. One vouched as Heir may be bound to Warranty by his Father, and if he bring an Assise De morte Ante­cestoris, and the Tenant plead Bastardy, it is no Estoppell that the Defendant vouched him as Heir before.

The Acquittance or Release is good before the return, and not like unto Hoes Case of Bail, Coke: lib: 5.71. or 5 Eliz: Dyer 217. Release of Actions and Suits will not release a Covenant before it be broken.

Object. That the Acquittance or Release is pleaded only by reci­tall.

Res. To this it was answered, that he had paid the two hundred and fifty pound, seventeen shillings eight peace, which the Plaintiff had accepted, and the Plaintiff by Demurrer had confessed the Deed, and all that is contained therin, then it appears that he is satisfied, and that the release in matter as it is recited shall be an Estoppell, vide 46 Eliz. 13. But it seemed that it is no Estoppell by the reciting in the Release that which is in possession, but that afterward he might well say, that he was not in possession at the time of the Release, and all the Court agreed, that the Acquittance or Release, and receit of the mo­ney is a good Bar as to two hundred and fifteen pounds, seventeen shil­lings eight pence, and so it was adjudged: But whether an Action of Debt lies against the Sheriff upon this return is questionable, yet that it is not any Contract, Account, or Loane, upon which three proper­ly an Action of Debt lies, as it is said M. 18. E. 4.23. and 41. E. 3.10. and 42 E. 3.9. When money is delivered to be delivered over, that no Debt lies if it be not delivered over, but Account, vide 34 H. 6. 36. a. 9 E: 4.50. And the Court inclined, that in this Case Debt lies, for it is a generall Contract: In Dowses Case, the Sheriff levy part and do not return it, but the party pay it, Debt lies against the Sheriff: And if money be delivered to buy Land, if he buy it not, Debt lies, or Ac­count.

Mich. 15 Jac. Rot. 636. Stone versus Roberts.

STone brought an Action upon the Case against Roberts for these words; The Plaintiff is a Witty, and an Inchaunter,Case.and hath be­witched the Children of one Strong: And Iudgment for the Plaintiff;Words. For though Witch is a word of malice, and familiarly used to old poor women, and therfore no Action lies, yet here it is coupled with a Deed, by which the Plaintiff is drawn in danger of his life, by the Statute of 1 Jac.

Hil. 15 Jac. Rot. 710. Crawley versus Kingswell.

RIchard Crawley Plaintiff, in Roplevin against Richard Kingswell, Replevin. for taking of one Cow at C. the Defendant makes Conuzance for ten pounds Rent-service come Bayliff to his Father, the Plaintiff confesse the Tenure, but alledge that at our Lady day (which was one day of payment) he was upon parcell of the Land,Rent tendered at the day. and there was rea­dy and offered to pay it, and remained there till after the setting of the Sun: The Defendant replyed and (protestando that he made no such tender) for plea saith, that after that, and before the Distresse, viz. such a day, he at this Close demanded the Rent, and none came there to tender or pay it, for which he did distrain, and praies a return, &c. and avers that the Plaintiff nor any other, neither at the time of the distresse, nor at any time after offered to pay the Rent, wherupon the Plaintiff demurred; and it being argued by Hendon and John Moore, it was adjudged by the whole Court that the Defendant shall have a return: And a diversity was taken between this and Homage, where one makes a tender to the party, and he refuse, there he cannot distrain, because it is a personall thing which cannot be performed (as pay­ment of a Rent may) by another hand, vide Litt. fol: 35.21 E: 4.17.7 E: 4.4.20 H. 6.13. Also it was agreed, that the tender there by the Te­nant at the day is not materiall, but if he had tendred it when the Distresse was taken, the taking should be tortious. 30 Ass: 38. vide 22 H: 6.36, & 37.21 E: 4. b. 45 E. 3.9. vide Litt. 7. fol: 28.

Demand necessary only for a Penalty.

26 Eliz. Certain Cases vouched in an Action for words.

GIttings Plaintiff in the Exchequer, against Redserve. Gittings is a cousening Knave, and so I have proved him before my Lord Mayor, for selling me a Saphire for a Diamond, the Action does not lye: And by Manwood, if A. saies of B. Thou art a cousening Knave, and hast cousened me of five hundred pounds, no Action lies, which the Court agreed.

Banco Regis 30 Eliz. George versus Whitlock.

HE is a cousening Knave, and consened a poor man of a hun­dred pounds, and all the Georges are cousening Knaves, no action lies,

Hil. 30 Eliz, B. R. Walcot Plaintiff versus Hind.

HE is a cousening Knave, and hath cousened me of forty pounds, adjudged no action lies: And upon Error brought in the Exche­quer, Iudgment was affirmed; and it is said that our Law takes no notice what a Cousener is.

Trin. 37 Eliz. Brookes Case.

HE is a false Knave, and keeps a false Debt Book, for he charg­eth me with the receit of one peece of Velvet which is false, not actionable.

Mich. 37 and 38 Eliz. Charter versus Hunter.

THou art a Pilfring Merchant, and hast Pilfred away my Goods from my Wife and my Children not actionable:

A Butcher and his Wife brought an action upon the Case against B. and his Wife, and shew that the Plaintiff used the Trade of a Butcher, and that his Wife in his absence sold and delivered flesh, and the words were, that the Wife of the Plaintiff is a cousening woman, and hath cousened one of her Neighbours of four pounds; And it was alledged over, that she the Defendant would bring good proof of it, and adjudged that an action lies not.

Trin. 13 Jac. Rot. 650. Heard versus Baskerfield.Brownl [...]w [...]

WIlliam Heard Plaintiff,Replevin. against Richard Baskerfield in Reple­vin for taking two Cowes at Brood, the Defendant makes Co­nuzance as Bayliff to John Dinham Esquire, and shows that Walter de la Therne was seised in Fee of twenty acres of Land, wherof, &c. And by his Deed (shewn in Court) 12 E. a. granted a Rent-charge of two shillings out therof to John Milleton and Walter Milleton, In Replevin, one makes Conusance & derive his E­state from one as Cosin and Heir, and shews not how. John Milleton dies, and Walter survived and died seised; and this Rent de­scended to one John Milleton of P. as Cosin and Heir to the aforesaid Walter, and he was seised in Fee; and one John Dinham was seised in Fee of one house and twenty acres of Land in Pensons, and by Deed (shewn in Court) exchanged them with the said John Milleton for the said Rent; and Walter de la Therne being seised of the Land, out of which the Rent issued, attorned, and gave Seisin of the Rent to John Dinham, wherby he was seised in Fee of the Rent, and convey­ed the Rent by three discents to this John Dinham, for whom the De­fendant makes Conuzance for ten shillings for five years arrear: And the Plaintiff demurs generally upon the Conuzance. And the cause was, that it is not shewn how John Milleton is Cosin and Heir to Wal­ter upon the discent.

First, if it be good as this Case is, viz. That he claimes not as Cosin and Heir, but makes Title under him by conveyance after­wards: Also because the Defendant makes Conuzance and is a stran­ger.

Secondly, if it be but forme.

And this Case was argued at Bench briefly, in Trin. 16. And I was of opinion, because that this is the Conuzance of a Bayliff, and it is a discent in one blood, to which Dinham is a stranger, and because that a good Issue might be taken therupon as it is alledged; And if it had been a case of Bastardy, the Iury might have tryell it, therfore it is good by the Common Law, and differs from a Formedon, for there he which brings it is privy, vide 41 Eliz. 13, & 14 in a Scire facias, good without shewing how, 33 H. 6. 34. Sir T. C. Case, 27 H. 6. 2. 4 E. 3. 43. vide 19 E. 3. Quare impedit 58. And if it were not good by the Com­mon Law, yet it was but form, and aided by the Statute of 27 Eliz: cap. 5. vide in Doctor Leifeilds Case, lib: 10. fol: 94. And Iustice Winch a­greed with me, but Warburton to the contrary, and argued strongly, that it was substance and was very materiall, and he relied upon the Book in the 38 H: 6. 17. and he put the cases of 11 H: 6. 43. 8 H: 6. 22. & 2 H: 2. and Wimbish and Talbois case. Plowden, There is debate, and argued two against two, and no Iudgment given, because that it is not shewn Comment. Cosin, vide 2 H: 5. 7. a good Issue, there is no such Ancestor, a generall Demurrer confesse not the matter, as in Debt upon a Bill, he plead payment and the Plaintiff demur, that Demurrer doth not confesse the payment. Lord Hobart would not speak of the Common Law, but it seemed good to him by the Statute. The Title of the Act is, An Act for furthering of Justice, Definitive Iustice, and Interlocutery. The Statute takes not away form, but [Page 16] the intrappings and snares of form: No place where the Obligation is made cannot be tried by them affirmatively. Hough and Bamfields case matter and no form, and so Dyer 319. But the point of Cousinage which comes by videlicet is form: And if the case of Wimbish and Tal­bois had been at this day it should bee aided, and Iudgment for the Defendant.

Sheriff ought to deliver the Moyety by meets and bounds.IT was argued by the Court that upon an Elegit the Sheriff ought to deliver the Moyety by meets and bounds, and if it be so that the Conuzor be Ioynt-tenant, or Tenant in Common, then it ought to be so specially alledged and contained in the return.

Pasch. 16 Jac. Drury versus Fitch.

Case. DRury an Attorney of this Court, brought an action upon the case against Fitch, one of the Serjeants of London, for saying, I arrest thee for Felony, and after not guilty pleaded the Plaintiff was Non-suited:Costs upon Non-suit where the Plaintiff hath no cause of a­ction. And now it was moved that no costs should be given to the Defendant, because that the words will not beare action, and therfore Iudgment shall be given Quod nil capiat per billam: And they vouched one President in Grewstons case in Ban. Reg. vide, that now by the last Statute, costs shall be given to the Defendant in all cases where the Plaintiff should have costs if he recover; but in such case where the Plaintiff if he recover shall not have costs, the Defendant upon the Non-suit of the Plaintiff shall not have costs.

But it seemed to Lord Hobart, that in this case the costs are for vex­ation, and this is more vexation if he had no cause of action, vide 29 H: 8. fol: 32. It is there resolved, that an action lies for the costs, notwith­standing a Writ of Error brought: And the last day of this Term the Court was of opinion that the action lies for the words, for it is more then these, I charge thee with Felony, and if the Action lies not, yet the Defendant shall have costs, for it was such an Action in which the Plaintiff ought to have costs if he recover.

Vpon motion in Court by the direction of Iustice Warburton who had caused a Iury to be drawn, by reason of the slendernesse of the mat­ter, and for avoiding the charge of a speciall Verdict; the Case was, A Copyholder was a Lunatick, and the Lord committed the custody of his Land to one which brought an Action of Trespasse; Action brought by the Commit­tee of a Luna­tick which is a Copyholder. and whether it ought to be brought by him or by the Lunatick was the question. And the opinion of the Court was, that the Committee was but as Bay­liff, and hath no Interest, but for the profit and benefit of the Luna­tick, and is as his Servant; and it is contrary to the nature of his Authority to have an Action in his own name, for the interest and the Estate, and all power of Suits is remaining in the Lunatick: And it was ruled in this Court, that a Lunatick shall have a Quare impedit in his own name, vide Beverlies case, Coke lib: 4. the diversity between a Lunatick and an Ideot, and H: 8. Dyer fol: 25. And though when Guardian in Socage (as it was adjudged) makes a Lease for years, [Page 17] his Lessee shall have an Ejectione firmae, yet there the Guardian hath the Interest, and is accountable therfore. But in this case the Com­mittee hath no Interest, but is as a Servant appointed by the Lord to keep the possession for him, who is not able to keep it for himself. Lord Hobart and the Court also agreed, that the Lord of a Mannor hath not power to commit or dispose of the Copyhold of a Lunatick without spe­ciall Custom, no more then a man shall be Tenant by the Curtesie, &c. of a Copyhold without Custom, nor the Lord cannot commit during the Minority of an Infant Copyholder without Custom.

Hil. 15 Jac. Rot. 906. Smith versus Stafford.Brownlow.

ANdrew Smith and Anne his Wife,Case. against Richard Stafford Exe­cutor of Jeremy Stafford in an Action upon the Case, the Plaintiff counts, that wheras there was Communication had of a Marriage be­tween the said Anne (when she was sole) and the said Jeremy, Where inter-marriage re­lease a pro­mise made by the Husband to the Wife before marriage. the said Jeremy in consideration that the said Anne would take him to her hus­band, promised that if after the Marriage the said Jeremy dyed, living the said Anne, he would leave the said Anne worth a hundred pounds: and aver that she did marry the said Jeremy which died, and did not leave her worth a hundred pounds: And upon Non assumpsit the Iury found for the Plaintiff; and in Arrest of Iudgment it was alledged, that this intermarriage had extinguisht the action, vide 11 H: 7. 4 21 H. 7. 30. Coke 8. 136. there in Sir John Needhams case many cases are put, vide Hoes case, that a Release do not discharge Bail before Iudgment, for it is contingent, vide one Iudgment, Hil: 6. Jac. in the Kings Bench, Rot: 132.

Thomas Belcher and Elizabeth his Wife,Belcher and Hudson. against Edmond Hudson an Action upon the case, in consideration that the said Elizabeth at his re­quest would take one Thomas Mason his familiar Friend to her Hus­band, he assumed and promised that if the said Elizabeth survived the said Mason, that he would pay yearly to her forty shillings for her main­tenance, and shews that therupon she did take the said Mason to her Husband, and survived him, and then married with the Plaintiff; the Defendant pleads a Release from Mason of all Actions, Demands, &c. and it was adjudged no sufficient release: But Lord Hobart said, that if he had released all promises that would have discharged the Defendant, vide 4 Eliz: Release of all Actions, Suits, Quarrels, &c. doth not release a Covenant before it be broken, but otherwise of a release of all Cove­nants, as it appears in Dyer 57. though the principall case was a re­lease of all Covenants untill such a day, and Covenants were broken before and not discharged, for it being broken before, there was no Co­venant as to that.

Vide Lampets case, Coke lib: 10. 51. the reason of the release in Hoes case was, because that it was contingent and uncertain, and 17 Eliz: a Lease to the Husband and Wife for life, the Remainder to the Sur­vivor of them for one and twenty years, the Baron grant it over and survive, yet it is void, because it was contingent.

[Page 18]And the Lord Hobart said, that the promise was released by the in­ter-marriage, and so shall be in the case of an Obligation, for Fortior est dispositio legis quam hominis; and he held that strongly to be Law, but Iustice Winch and Iustice Hutton held the contrary, and that the Law will not work a release contrary to the intent of the par­ties, and that the marriage (which is the cause) do not destroy that which it self creates.

Trin. 6 Jac. Jurden versus Stone.

EIectment upon a Lease made by Alice Remington of a Copyhold in South Corny; Walter B. Copyholder in Fee married the said A­lice: And there was a Custom in the Mannor that the Wife shall have the Copyhold as of Franck-banck during her Widowhood,Where a woman may en­ter in and bring an acti­on t [...] be [...] Franck bank before admit­tance. Si tam diu casta viveret, and had used to challenge it, and the Lord granted it, as appears by divers admittances of women; and this Wife after the death of her Husband came into Court, and challenged her right of Franck-bank, and prayed to be admitted, and that the Steward re­fused, and she made a Lease for one year to the Plaintiff; and if he might bring this action, by reason the woman was not admitted (for it was agreed that no Fine was due to the Lord) was the question.

And upon the Evidence it was resolved by the Court, that this E­state ariseth out of the Estate of the Husband: And as Lord Hobart said, it budded forth of the first Estate; and it seemed that where Te­nant for life is admitted, that shal be the admittance of him in remain­der: Also if the Free-hold of the Copyhold be granted over, and the Husband dies, there there cannot be any admittance, and yet she may enter; and in this case if any admittance had been necessary, she had done all that she could do, and that amounts to an admittance in Law to an Estate created by the Custom, and by the act of God and Law. A Tenant alieu, and the Feoffee tender the services and gives notice, the Lord refuse, this is sufficient, and the Lord shall be compelled to avow upon him. Continuall claim amounts to an entry.

Pasch. 16 Jac. Rot. 444. Blands Case.

Case. GEorge Bland brought an Action upon the Case against A. B. the Defendant having some communication with one Eagle said, that he was a troublesome fellow, and he doubted not but to see him indict­ed at the next Assises for Barretry, or Sheep-stealing as George Bland was,Words. for George Bland was indicted the last Assises for stealing of Sheep; and it was not averred that he was not indicted, but that he was of good fame, It was moved in Arrest of Iudgment, that it is not actionable, and so was the opinion of the Court, for it is not a di­rect [Page 19] affirmative: vide the case of Steward against Bishop, before fol. 1. And if one saies, I suspect you for stealing my Horse. And Iudgment was given for the Defendant.

Trin. 16 Jac. Darcy versus Askwith.Brownlow.

JOhn Lord Darcy of Ashton brought an action of Wast against Ro­bert Askwith (now Knight) and John Marshall, Wast. and assigne the wast in Woods, viz. In cutting down and selling two Oakes, foure Ashes in a Close called Tisley Close, two Okes in Parsons croft; one Ash in Pinder croft, and sixty one Oakes in Preston Lands,Wast in cut­ting of wood to make Cole mines. and in di­vers other Closes in Swillington and Preston: The Defendant plead a Lease of the Mannor of Swillington to him for years, and also of the Mines, and justifie the shrowding of the Trees to make Punchons, Poles, and Stakes, and other Vtensils, in and about certain Pits called Cole-mines, in one of the Closes, without which the Defendants could no [...] dig and take Coles out of the said Pits; and aver imploy­ment about of the said Cole-mines, & justifie the cutting of other trees for the making of Instruments, for the extracting of the water out of the said Pits, and that without which they could not dig any Coles, and they were necessary for the digging of Coles, and for supporting the Pits, and aver the Imployment; And therupon the Plaintiff demurred: And we all agreed that the Plea is not good; Harris ar­gued for the Defendant for three reasons.

1. Because by the Lease this was included, vide 21 H: 6. 61. grant of Conuzance, &c. gives power to make a Steward, tempore E. 1. Fitz. 41. 2 E. 2. Bar 237. grant to fish in a Pond, yet he cannot make a Trench.

2. The Coles are the Inheritance, and the bettering of them is the bettering of the Inheritance.

3. For the profit of the Common-wealth, 14 H: 8. 18. 20 Eliz: Dyer 361. Altams case, Trench to make a Meadow the better is no wast, vide 22 H: 6. 6. digging of certain Loads of Gravell for the amending of the Land, vide 12 H: 4, 5. And for telling, this ought not to be an­swered any other way then by justifying of the Imployment; and the Plaintiff may reply upon the sale if he will, and the case is long deba­ted, 5 E: 4. 10. vide Dyer 37. Malenders case.

And the last day of this Term, the Lord Hobart declared, that we were all of opinion that the Plea is not good, for there though the Lease be of Mines, and by vertue therof the Lessee might open new Mines, as in Sanders case, Coke lib: 5. fol. 12. there it shall be intended of new Mines which in themselves is wast, if it had not been by speci­all words; And the digging of a Mine is an impairing of the Inheri­tance and a great benefit to the Lesses, and therfore if Lessee for years build a new house, if he cut Trees off the same Lands for the making therof, it is wast, 17 E: 2. Fit: wast 118. And no more then one may make a Brick Kilne and burn Brick, or a Lyme Kilne and burn Lyme with wood growing upon the ground, and sell the Brick or Lyme, no more may the Defendants in this case cut down wood for the making [Page 20] and supporting of these Mines for Coles which they sell, vide 41 E: 3. 17. And so Iudgment was given for the Plaintiff.

Edmonds Case.

MEmorand. That at the Assises holden at Winchester in Lent, 15 Jac. one William Edmonds was indicted of Burglary, because that he Burglariter and feloniously did break the house of one Richard Heydon in the night at Ramsey, Burglary. and the Iury gave a speciall Verdict. We find that Richard Heydon and Christian his Wife were both in Bed and at rest in an upper Chamber in the Mansion house of the said Richard Heydon; and that the said William Edmonds then was and yet is the Servant and Apprentice of the said Richard, and that he then lay in another Chamber of the said house, remote from the Bed-chamber of his said Master and Dame, and that there was a Door with a Latch at the Stairs foot of the said Bed-chamber of the said Heydon, but none at the Stair-head being the entrance into the said Bed-chamber of the said Heyedon: We find that the said William at the said time in the Indictment drew the Latch of the Stair-foot door, and opened the said door being then latched, and went up the Stairs, and entred into the Bed-chamber of his said Master, with an intent to murther the said Heydon, and that he did then and there with an Hatchet (with an intent to murther his said Master) strike and grie­vously wound him, and gave him fifteen wounds on the head, and other parts of his body: And if upon the whole matter, &c.

And this speciall Verdict was shewn by the Lord chief Baron Tan­field, unto all the Iudges of Serjeants Inne in Chancery Lane, viz. Iu­stice, Warburton, Crook, Baron Bromely, Iustice Dodderidge, Houghton, Winch, and Hutton; And they all (besides Winch which doubted) agreed that it was Burglary, and afterwards in the same Term, at a meeting in Serjeants Inne in Fleetstreet it was shewn to Mountague, Hobart, and Denham, which concurred.

Mich, 16 Jac. Staffords Case.

FAlse Imprisonment was brought by Sir John Stafford, the Defen­dant justifie,Matter of Re­cord tryed by the Country. that Bristoll is an ancient City, and that time wherof memory, &c. there hath been a Court holden there before the Sheriffs &c. and justifie that there was a Plaint levied, and Iudgment, and that the now Plaintiff was taken in execution. The Plaintiff replyed Quod non fuit aliqua querela levata, according to the custom, and re­quires this Quod inquiratur, &c. And it was tryed at Bristoll and found for the Plaintiff, and damages twenty six pounds. And it was moved in Arrest of Iudgment, that this being matter of Record, viz. the en­try of the Plaint in a Court of Record, it shall be tryed by the Record, and not by the Country.

And it was adjudged that the tryall was good, because that it is [Page 12] not meerly Record, but whether it was according to the Custom. And Non prosecutus est ullum breve is tryable by the Country; Quaere if the King grant by Patent to hold plea under forty shillings, if it be a Court of Record.

Sir Walter Rawleys Case.

MEmorand. that on Friday the 23. of October, upon conference between all the Iustices of England, whether a privy Seal was sufficient, it being directed to the Iustices of the Kings Bench, to command them to award execution against Sir Walter Rawley (which was attainted of Treason at Winchester Mich. 1 Jacobi, How Priso­ners which are attainted of Treason, & set at large, shall be brought to ex­ecution. before Com­missioners of Oyer and Terminer) or how they should proceed before execution be awarded: It was resolved by all, that he ought to be brought to Bar by Habeas Corpus to the Lieutenant of the Tower, and then demanded if he could say any thing why execution should not be a­warded, for the proceedings against him being before Commissioners, they are delivered only into the Court of Kings bench, or they might have remained in a Bag or a Chest, and no Roll made therof, and so long time passing, it is not a Legall course that he should be comman­ded by a privy Seal, or great Seal to be executed, without being de­manded what he hath to say, for he might have a pardon, or he might say, that he is not the same person: As if one be Outlawed of Felony and taken, he shall not be presently hanged, but he shall be brought to Bar and so demanded &c. And upon this resolution a privy Seal came to the Iustices of the Kings Bench, commanding them to proceed a­gainst him according to Law: And therupon a Habeas Corpus was a­warded, and Octob: 28. he came to the Bar, being brought by the Liev­tenant, and there he was demanded of whether he had any thing to say why, &c. and there he shewed, that the King had imployed him as Generall of a Voyage, and hath given him power De vita & membris upon others: And whether this did amount to a pardon or no, he knew not. The Attorney-generall said, that the King pardoned no Trea­sons by any Implication, but it ought to be by speciall words: Then he said he had nothing else to say, but submit himself to the mercy of the King; And there execution was awarded, and a Roll made therof (and so it was done in Lepu's case, as the President was shewn) and he was committed to the Sheriffs of London and Middlesex, and by them he was brought to the Gatehouse, and the next day (which day the Lord Mayor of London came to Westminster to take his Oath) he was beheaded in the great Court at Westminster, and he died in a good and religious manner, and spake much without any fear of death, sub­mitted himself to the Block, and by his death gained great reputation in this life, and by the grace and mercy of God remission of his sins, and eternall life afterwards, &c.

Bishop and others.

FAther Tenant in tail hath Issue two Sons, the Father with the eldest Son makes a Feoffment with Warranty, the eldest Son dies,Lineall War­ranty. and after the Father dies, the younger Son brought his Forme­don; and this Feoffment with warranty of the eldest Son is pleaded in Bar, and upon Demurrer, Iudgment for the Demandant: For it is but a lineall Warranty, and then without Assets it is no Bar, for though the eldest Son dye in the life of the Father, yet the younger Son by possibility might have the Land as Heir to him.

Mich. 16 Jacobi.

AN action of Debt was brought upon the Statute of 5 Eliz. for per­jury against one that was produc't as a Witnesse in an action of Trespasse, and deposed falsely: And upon Nil debet pleaded, the Plain­tiff was non-suit,Costs shal not be allowed upon a non-suit in an acti­on brought upon the Sta­tute 5 Eliz. of Perjury. And whether the Defendant should have costs or no, was moved by Serjeant Harvy, and that stands upon the words of the Statute of 23 H. 8. cap. 16. the words are, In any Action, Suit, Bill, upon the Case, or upon any Statute for any Offence, or wrong perso­nall immediatly supposed to be done to the Plaintiff.

The opinion of the Court was, that the Defendant should not have costs upon this non-suit, because that this action is founded upon a Statute made long after the making of that Statute. Also this is not an immediate wrong to the Plaintiff, but to the Secondary for it is an immediate wrong to the truth; and such Statutes which are in­tended by this Act, shall be like to Trespasse done to the party him­self, as Ravishment of Ward: Also it is not aided by the Statute of 4 Jacobi cap: 3. for that gives costs to the Defendant, where the Plain­tiff shall have costs if he recover; And Mr. Brownlow the Prothonatory said, that it had been ruled so before, for the Plaintiff should not have costs if he recover, because the Act 5 Eliz. gives a Penalty, viz. a forfeiture of twenty pounds against the Witnesse, and forty pounds a­gainst the Suborner, and so the Plaintiff if he had recovered, should not have had any costs, and therfore it is not aided by the Statute of 4 Jacobi.

Mich. 16 Jacobi. Conesbies Case.

THe Lady Conesby, being the Wife of Sir Ralph Conesby, was ci­ted into the Ecclesiasticall Court by Mr. Watts, Prohibition: who had married Elizabeth the Grand-child of the Father of Sir Ralph, to which Grand-child by Will one Legacy of a hundred pounds was devised, and that was pass 3 Jac. by the Lady Conesby Executor of the first Testator, [Page 23] and upon payment an Acquittance under the hand and Seal of the said Watts was, &c. in the presence of two Witnesses now dead: And this being denied, and they allowing of no proof by comparison of hands, nor by circumstances, but only proof of them which wrote it, or of them which saw them subscribe: And by their Law an Acquittance of the Husband for a Legacy to the Wife, without the Wife is not sufficient, also if Watts himself will deny it upon his Oath, there it shall stand a­gainst all proofs: A Prohibition was granted upon the motion of Ser­jeant John Moore, and after Serjeant Harvy had said all that he could say.

Trin. 16 Jac. Rot. 954. Kind versus Ammery.

KInd Plaintiff in a Replevin against Ammery: Replevin. The Avowry was for a Rent-charge, and the Grant was of a rent of twelve pounds payable at two Feasts,Demand not necessary in an Avowry for a Rent-charge. and if it vs behind for the space of a month after any of the said Feasts, it being lawfully demanded, that he might distrain; and for Rent arrear at the Annunciation, and by the space of a month after, and not paid, he distrained: And the Plain­tiff demurred upon this Avowry, and shewes for cause, that it is not shewn that the Avowant made any demand before the Distresse: And Serjeant Harris relied upon a Case which was An: 31 Eliz. as he said, and vouched the number Roll;Bosdens case. that upon demurrer between Bosden and Downes, there the Avowry was not good for the same cause: And Maunds case, Coke lib. 7: fol. 28. implies that it ought to be demanded, but it is not issuable, if it be at the day or after: And he said it was debated 31 Eliz. whether it was form or substance, which shall not need to be shewn upon Demurrer; But the Court agreed that no actuall de­mand was necessary to procede the Distresse in this case, but that the Distresse is a demand. But if the Grant has been penned in this form, if it be arrear at such a Feast, and for a month after demand, that then he may distrain, otherwise it is, for there the Distresse is limited to the month after the demand: And so it was adjudged in this Court, between Coppleston and Langford, Trin. 3. Car. Rot. 2865.Copplestone & Langford.

Replevin between Beriman and Bower, Avowry for Rent granted out of ten acres of Land in Crediton, payable at such a Feast upon the Town stone, upon the Key in Barnstable, if it be lawfully demanded, with clause of Distresse, and the Distresse was before demand; and upon demurrer it was resolved a good Distresse without demand, vide Dyer 348.

Booton against the Bishop of Rochester

A Quare impedit was brought by Booton against the Bishop of Ro­chester, who pleads that he claims nothing but as Ordinary, and yet pleads further that the Clerk which the Plaintiff present, had be­fore contracted with the Plaintiff Simoniacally,Insufficient return on a Writ in Quare Impedit to the Arch bishop. and therfore because he was Simoniacus he refused him, and that the Church was then void, and so remained void, wherupon the Plaintiff had a Writ to the Arch-bishop of Canterbury, who returned that before the coming of this Writ, viz. 4 July, the Church was full of one Mr. Doctor Grant ex collatione of the said Bishop of Rochester which had collated by Laps, and this return was adjudged insufficient: First, it is clear, that though the six months passe, yet if the Patron present, the Bishop ought to admit, although it be after the title devolved unto the Metro­politan: And it seems also reason that he ought to admit, though that the Title by Laps be accrued to the King, for he claims it as supream Ordinary, vide Dyer 277. quaere. But in this case the Bishop which is the Defendant is bound by the Iudgement, and the Writ is, notwith­standing the claim of the Bishop, that he admit the Clerk; and the Bi­shop is but Servant, and ought to execute the processe of the Court. It was urged by Serjeant Henden, one Canon, Linwood fol. That if the Church be vacant when the Writ comes to the Bishop, that he is bound to execute the Writ, but if it be full, then he certifies the Iu­stices: And the Arch-bishop is sworn to the Canons, and he vouched 22 H: 6. 45. Coke lib: 6. 49. and 52 Dyer 260. F.N.B. 47. Dyer 364. 14 H: 7. 22. 34. H: 6. 41. 9 E: 3. Quare non admisit, 18 E: 4. 7.

Trin. 16 Jac. Rot. 1999. Eire versus Bannester.

JOhn Eire brought an Ejectione firmae upon a Lease made by Sir Ed­ward Kinaston against Andrew Bannester and Thomas Wenlock for Land in Norwood, Challenge. and after Not guilty, the Plaintiff made surmiss of Kindred to the Sheriff Sir Thomas Owen to the Plaintiff, the De­fendant pleads, that the Sheriff Non est de consanguinitate of the Plaintiff, as he by his challenge supposed: And because the Defen­dant denied the said Challenge, John Eire calumnia illa non obstant, prec: est quod ven. fac. &c. And at the Nisi prius the Defendants chal­lenge the Array for consanguinity between the Sheriff and the Lessor, viz. Sir Edward Kinaston, and make this Averment, that the Sheriff had Issue by Susan, which was the Daughter of Judith, the Wife of Sir Edward Kinaston; and conclude it is a principall Challenge, and therupon the Plaintiff demurred: And it was returned upon the Po­stea, and it seems that the Sheriff being admitted and allowed to be indifferent by the Defendants in the same Plea, they which allow cannot have a Challenge to the Sheriff, for the Defendants might by confession of the surmise of the Plaintiff to be true, have had a Writ [Page 25] directed to the Coroners, and although the entry is Calumnia illa non obstant. that is the form of the Award, and if he should be allowed o­therwise afterwards to challenge the Array, then it would be in­finite.

As a man ought to alledge but one principall Challenge, though he hath many, so it shall be peremptory to the Defendant, and when he allows the Sheriff indifferent, that shall be taken to be for all causes precedent, unlesse it be of latter time: And so is the opinion of 20 E: 4. 2. And if there be many Defendants, if one challenge the Array, that shall be peremptory for the others, as it seems; for the others ought when they challenge the Tales to shew cause presently of the Challenge, for if it be quashed that shall also be against them, vide Dyer 201. in Attaint vide 36 H. 6. 21. that where one challenge the Array which is affirmed, the other Defendants after may challenge the Array of the Tales.

The second point is, if it be a principall challenge or no, by reason that the Lessor is not party to the Action, vide 10 E 4. 12. 15 E. 4. 18. and 21 E. 4. 61. there it seems that where the Defendant justifies as Servant to I.S. and that the Land is his Free-hold, it is a principall challenge that a Iuror is within the Distresse of John S. for the Title is to be tryed: And now it was found by common experience that the Less [...]e is but Servant; common recoveries at this day are but as o­ther common Conveyances.

But it seems that the Law is contrary, and it is not averred that this is a Lease for trying the Title; and (as Iudges) we take no no­tice therof, but vide 3 H: 7. 2. contrary to the 10 and 15 E: 4. where the Challenge is to the Array, because that the Sheriff was of Kindred to him whose Free-hold was in Issue: and vide 9 H: 7. 22. Cognizance as Bayliff to the Abbot of Ramsey, Challenge to the Array, because the Sheriff was within the Distresse of the Abbot, and that was not a principall Challenge by Fineux, Brian, and Vavasor, because that he was not party to the Writ, vide this very Case, Dyer 300.

And upon argument at the Bar the Court was of opinion, that it was no principall Challenge, but ought to have concluded with the favour. All agreed that a Surmise which is for prevention of delay, ought to contain matter which is a principall Challenge, for no triall shal be of such suggestion, but by the deniall of the Defendant or Confes­sion: And by the opinion of Lord Hobart and Iustice Winch cest. dedi­re n'est peremptory to the Defendant, for his time of challenge is not till the Iury come to be sworn; but I hold the contrary, because that he might have confessed the Surmise, and so have had time: And I rely upon 20 E: 4. 2. there in the end of the Case it is said, that the De­fendant by his deniall, where he saies that the Sheriff is not favoura­ble, but indifferent, there he shall never have a challenge for favour unlesse he shews cause of later time.

As to the second Point, it is no principall Challenge, because it might be, that the Lessor had granted over the Reversion, or that the Defendant might be found Not guilty: And a principall Challenge ought to contain such matter, which (being so) the Law adjudge fa­vourable; and in this very case two Presidents scil. Iudgments more strong then this case,Bedforne and Dandy. Hil: 44 Eliz: Rot: 1208. Bedforne against Dandy in an Ejectione firmae upon a Lease made by Sir John Digby, after Not guilty pleaded, a Surmise made of consanguinity between the [Page 26] Lessor and the Sheriff, &c. confessed, and therupon a Venire facias to the Coroners, and after the Challenge was adjudged insufficient, and a Venire facias likewise to the Sheriff was ruled,Craddock and Wenlock. Trin: 14 Jac. Rot. 2284. Craddock against Wenlock, in an Ejectione firmae upon a Lease made by Sir Robert Cotton, such Challenge and Award to the Coro­ners, and tryed and adjudged a mis-tryall; and a Venire facias a­warded to the Sheriff, and the mis-tryall is not aided by the Statute, vide Coke lib: 5. Bainhams case: And so by the Iudgment of the Court this Challenge was insufficient; and Warburton being then sick was of the same opinion, as he told me, vide 8 Eliz: Dyer 281. Austen and Baker in Attaint, vide 33 H. 6. 21.

3. Defendants, one challenge the Array of the Principall, and that being affirmed the other Defendants challenge the Tales.

Mich. 16 Jac. Easington versus Boucher.Debt.

Severall De­fendants in Debt upon a joynt Con­tract may plead severall plea [...]. EAsington brought an action of Debt upon a joynt Contract against: Sir John Boucher, Turner, Bolder, and one other; Turner appear and tender his Law, Sir John Boucher and another plead Nil debent, and the other was Outlawed; and it was said, that he ought to have joyned, but it was resolved by the Court that they may sever in Bars, but ought to joyn in Delatories; For otherwise if one which never bargained be joyned in the action, he must put his matter upon their pleadings. And in Debt upon a joynt Obligation, one may plead a Release, the other Non est factum, vide 48 E: 3. 21. and vide Presidents in this case according to this resolution,Sabud versus R [...]w. [...]. Trin. 26 Eliz Rot. 821. Trin: 26 Eliz: Rot: 821. Sabud against Robinson, Matson, and Loughton, and Count sur emisset, Waston and Loughton pleaded, and Non sum informatus by Robinson, Sed judicium inde cesset quousque, the Issue be tryed, and Venire fa­cias awarded and found for the Plaintiff,Pe [...]iam & T.P. H.P & I.P. Hil: 41 Eliz: Rot: 455.

John Periam and Margaret his wife, Executors of John Hart vrought an action of Debt upon Emisset against Thomasin Phelpes Widdow, Henry Pittard, and John Phelpes: John Phelpes was Outlawed, and Iudgment against Henry P. by Non sum informat. and Thom: P. plead Nil debet, Fleet and Har­rison. Venire facias, and Iudgment respited quous (que) &c. and after tryall the Plaintiff had Iudgment.

Hil: 13 Jac: Rot: 841. Fleet brought an action of Debt against Ja: Har­rison, and Isaac. Brooke upon Emissent: And James H. waged his Law, & Iudgment against Isaac. Brooke by nihil dicit. Et quia Conveniens est quod judicium de loquela praedicta unicum sit versus praedictos Isaac. & Jacobum si contingat ipsum Jacob. de perficiend. legem suam praedictam desicere, Ideo parcat in judicium inde versus praefatum Isaac. redden­dum quosque praedictus Jacobus legem praedictam perficeret, sive inde desiceret & postea praedictus Jacobus perfecit legem suam. Ideo conside­ratum est per Curiam quod praedictus querens nihil capiat per breve suum praedictum sed sit in miserecordia pro falso clamore suo inde, & quod praedictus Jacobus eat inde sine die. And according to this Pre­sident it was agreed per Curiam that so it ought to be.

Hil. 12 Jac. Rot. 3007. Reyner versus Waterhouse.

JOhn Reyner brought an action upon the case against L: Walterhouse, Ven. fat. de d [...] ­versis villis. and declares, that wheras he is, and by the space of twenty years past have been an Inhabitant within the Town of Long Leverseidge in the Parish of Burstall: And wheras the Inhabitants of Long Lever­seidge aforesaid, De tempore cujus contrarii memoria hominum; &c. used to have a common way as well for Foot-men as for Horse-men, to go and ride from the said Town of L. to the Parish Church of Bur­stall aforesaid, on Lords daies, and Festivall daies, and other conve­nient times to hear Divine Service within the said Church; and to carry bodies, &c. dying in the said Town, to the said Church to be in­terred, Modo & forma sequent. viz &c. and shews the way through di­vers Closes in Long Leverseidge, Little Leverseidge, and Gomersall, and over the Church-yard of the Church of Burstall, and from thence unto the Church aforesaid, and backward, &c. and shew one distur­bance made by the Defendant by making of a Ditch in one of the Clo­ses in Gomersall; the Defendant pleaded Non culpab: and found for the Plaintiff; and in Arrest of Iudgment it was alledged that the Venire facias fuit de Gomersall tant. And the Venire facias was quash­ed per Curiam, and a new one awarded de L.L.G. & Burstall.

Hil. 16 Jac. Bigg versus Malin.

BIgg brought an action upon the Case against Malin, Case. as Admini­strator, and counts that whereas the Intestate was indebted to him in ten pounds, and the Defendant also was indebted to him in forty shillings, they accounted, and upon account the Debt being twelve pounds,In case upon Assumpsit a­gainst Execu­tors, it is not necessary to al­ledge Assets. the Defendant being Administrator did assume and promise to pay it, Et licet saepius requisitus non solvit: And upon Non assumpsit pleaded, the Verdict was found for the Plaintiff: And by Finch, it was moved in Arrest of Iudgment, that the Plaintiff had not shewn in this Count sufficient consideration to charge the De­fendant, because that it doth not appear that the Defendant hath As­sets. But the Court disallowed that, for if that were necessary it ought to be presumed to be found in the Verdict; As in the case, in conside­ration that the Plaintiff had sold and delivered to him twenty quar­ters of good and merchantable Barly, the Defendant promise to pay [Page 28] him twenty pound: Non Assumpsit, the Plaintiff ought to prove the promise and the delivery. And as in Debt against Executors upon a simple Contract, it shall not need to be alledged that they had Assets to pay Debts by specialties, yet good, and that ought to be proved.

But it seemed to be agreed, that if an Executor or Administrator which hath not Assets, makes promise of payment, if it be not mixed with any profit to himself, viz. forbearance, &c: there it shall not charge him.

But by Warburton, if an Executor hath fifty pounds Assets, and he promise to pay to a Creditor a hundred pounds, that shall bind him for all, for when he hath Assets for part, the Plaintiff hath Iudgment for all, and execution only for so much as is found. And in this case the Plaintiff had Iudgment.

Brook versus Groves.

BRook brought a Quod permittat against Groves, and after Impar­lance the Defendant demanded a view, and ruled by the Court that he might, and vide 34 H: 6. 9, 10. accordant, vide 6 E. 4. 1. and the Plea,Quare impedit. viz. the View was De tenementis predictis, which was as well of the Lands to which the Nusance, as of the Lands which was the Nusance:View. And the View in this action is but for fifteen daies.

Egerton versus Egerton.

THe Lady Egerton Wife of Sir John Egerton, brought a Writ of Dower against Edward Egerton, the Tenant at the day of Essoin did not cast any Essoin: And the Demandant entred her exception, & at that time the Writ was not returned, and upon motion to the Court for the tenant to be essoined notwithstanding the exception,Dower. it was resolved that notwithstanding the writ was not returned, yet the Tenant might have his Essoin, vide 2 E. 4. 11. 21 E. 4. 7, 8. 30 H. 6. 1. that an Essoine may be before the Writ be returned, and vide 2 H: 7. 4. 10 E: 4. 4. the Tenant may be Essoined at any day,Essoin though the Writ be not returned. as wel at the fourth daie as the day of Essoin, unlesse the Essoin be challenged, viz. an exception entred, and 2 H: 7. 4. takes a difference between a reall Action, or Originall Suit, and a Writ of Execution; for upon the first, the Essoin lies at any time before the fourth day, but in the Writ of Execution the De­fendant ought to be essoined at the day of the Essoin.

And Warburton said, that if the Essoin be not cast before the return of the Writ, it ought not to be at all, for all Writs come in by Post diem.

Cardinals Case.

CArdinall an Attorney of this Court of Common Bench,Case. brought an action upon the case against I. B. for saying of him, That he had forged the last Will of I. S. and after Issue upon not guilty, it was found for the Plaintiff: And moved in Arrest of Iudgment,Words. that it is not alledged that the Will is supposed to be forged. But by the Court, that was necessarily implyed, and the Plaintiff had Iudgment.

Pasch. 17 Jac. Allaboyter versus Clifford.

JOhn Allaboyter brought an action of Debt upon an Obligation a­gainst Daniel Clifford, which was with a Condition,Debt. that if the De­fendant perform the Award of two Arbitrators of all Actions, De­manos &c, moved between the Plaintiff and Defendant from the be­ginning of the world untill the day of the date of the Obligation,Arbitrement, so that the arbitrement be made before the tenth day of December, the De­fendant plead no such award before the day, the Plaintiff reply and shew, that the ninth day of December they awarded of and upon the premisses, and arbitrated that the Defendant should pay to the Plaintiff fourteen pounds at two severall daies, and that upon the last day the Plaintiff should make a generall release to the Defendant, and the De­fendant likewise to the Plaintiff, and alledge a breach for the non pay­ment of the first seven pounds, and aver that the fourteen pounds was awarded to the Plaintiff, in full satisfaction of all suits, quarrells, &c. depending between the Plaintiff and the Defendant, at any time be­fore the Date of the Obligation, upon which Plea the Defendant de­murred, and objected by Attho, that the Release which is appointed to be made upon the last day, is not appointed but after the payment of the money, and also is then to be made of more then is submitted to them. But by the Court it is agreed to be a good Award, for it shall not be intended that there were more matters arising between them after the date of the Obligation: Also if he had made a Release un­till the date of the Obligation, that were a good performance. And this Case had been adjudged before between Nichols and Grandie. Nichols and Grandy.

George Andrews Case.

VPon a Habeas Corpus, one George Andrews was brought to the Bar, and upon a long return by the Mayor, Aldermen, and She­riffs of London, The Custome of London to give security for the pay­ment of the Portions of Orphans, and upon refusall the Debters are to be com­mitted. of their custom concerning the Orphans of Free-men, and for the security of their Portions to be paid to them at the age of 21. years, or at the time of their marriage, or at such time as is appointed by the Will of their Father, or Mother, or other Free-men giving to them any Legacy, they use to take sufficient security of them which ought to pay them, and if they refuse, then to commit them to the Counter untill they give security; and that their customs were confirmed by Act of Parliament, An. 7. R. 2. William Andrews a Free-man having one Son and one Daughter by Emery his Wife died, this George Andrews a Free-man being Suitor to the Wife before marri­age agreed, that if the Wife would marry him, she should dispose of two hundred pounds, &c. and he was bound in a Statute to permit and suffer her to make her Will, and dispose therof; and after she died, and by her Will gave a hundred pounds to her Son, and a hundred pounds to her Daughter, and the said G.A. agreed to her Will, and yet refused to give security to the Chamberlain of London to pay it at the day appointed by the Will, pretending that he was bound by Sta­tute to the Friends of the Orphans to perform it: And by the Court he was remanded, for it is a laudable Custom, and the voluntary Ob­ligation upon marriage is not any discharge as to the security by the Custom, and we will not disparage the Government of the Citty.

Trin. 16 Jac. Wolfe versus Heydon.

Debt. THomas Wolfe Administrator of the Goods and Chattels of John Aldrich, durante minore aetate of Edward Aldrich, William Al­drich, and other Children of the said John not administred by John Tal­bot, Executor of John A, or by Robert Armiger late Administrator of the said Goods and Chattels during the minority of the said Children not administred,To what in­tents a man shall be said Executor be­fore he prove the Will. brought an action of Debt against Simon Heydon, and count upon an Obligation of fifty pounds, wherof ten pounds was satisfied to John Aldrich in his life, and counts that John Talbot was made his Executor and died; and that the money was neither paid un­to the said John Aldrich the Testator in his life, nor to John Talbot the Executor in his life, nor to the said Robert Armiger late Admini­strator of the Goods and Chattels of the said John Aldrich, during the minority of the Children; and he produce Letters of Administration, and aver that the Children were within the age of seventeen years. The Defendant plead in Bar, that the said Aldrich before this Writ purchased, viz. such a day at S. in the Parish, &c. made his Will and constituted John Talbot his Executor, Qui suscepit onus inde, and ad­ministred divers Goods as Executor, and after, viz. such a day, the said John Talbot made Benjamin Roblet his Executor, and died, and [Page 31] Roblet suscepit onus testament, and did administer, and demand Iudg­ment si actio, &c.

The Plaintiff reply and confesse that John Aldrich made John Tal­bot his Executor, and that he administred and made Roblet his Exe­cutor: But he saies, that the said John Talbot did not prove the Will of the said John Aldrich according to the Ecclesiasticall Law; and that the said Benjamin before that he took the charge of the Testament of John Talbot renounced before the Ordinary to be Executor of the said John Aldrich, or to administer any of the Goods which were the Goods of the said Iohn Aldrich, or to have any thing to do therwith: And ther­upon the Defendant demurs, and Iudgment was given for the Plain­tiff.

And in this case the Court well agrees with the replication, for he was Executor before probate, to pay Debts and to be sued, but not to have an action, though that originally the probate was temporall: and it is no plea in our Law, scil. that he did not prove the Will, but that he was not Executor: And of late times our Law for the encreasing of the credit, and for the inforcing of the Probate, do disallow actions brought before the Probate, vide the Case upon which it was princi­pally insisted, 22, 23 Eliz. Dyer 272. a. Isted against Stanley; If an Executor dies before Probate, and if the residue of the Goods be devi­sed to him, then Administration shall he committed to his Executor, or otherwise to the next of the blood of the first Testator, for now he dies intestate: And although it be one dying intestate of the first Te­stator in Law, yet if being the reall and speciall matter it agrees well with his Writ, and is matter in Law, scil. to some purposes he dies intestate, and to others not, for he had power to release, to pay Debts, and to take a release, vide Dyer 367. a, It seems that his Exe­cutor shall have his Legacy. But the Count is cu [...]bred with the Ad­ministration committed to Armiger, and it doth not appear how it was dischrrged, for it is only that the money was not paid to him late Administrator, and it is good, and the action is brought according to the Letters of Administration to him, which were of the Goods not administred by John Talbot, nor by Armiger which was Admini­strator.

Coppledick versus Tansey.

FRancis Coppledick Plaintiff in a Quare impedit against Samuel Tansey Clerk, Sir Philip Tirivint Baronet,Quare impedit. and Richard Bishop of Lincoln, Quod permittant ipsum presentare ad Ecclesiam de Ulceby; and count that one Francis Coppledick was seised of the Advowson in Fee, and that it was holden in Socage;Tryall where no such Town is plea­ded. And that the said Francis so being seised devised it in tail, and intitle himself as Heir in tail.

Tansey plead that he is Parson imparsonee of the presentment of the said Sir Philip, and demand Oyer of the Writ, and plead that at the day of the Writ purchased there was no such Richard Bishop of Lin­coln in rerum natura, and demands Iudgment of the Writ: Sir Philip plead that there is no such Church called Ulceby in the County of Lincoln, and demand Iudgment of the Writ.

The Plaintiff [...]emur upon the plea of the Incumbent and as to the [Page 32] plea of Sir Philip, he reply, that there is such a Church called Ulceby in the County of Lincoln; and this plea being tryed at Lincoln, before Baron Bromley, it was found for the Defendant: for there was an u­nion of the Church of Fordington to Ulceby, and it was called Ulceby cum Fordington: And it was said that Institutions and presentments were to Ulceby; and Ulceby was the greater, and Fordington was the lesser Church, and united, and therin had lost its name. It was a­greed, that it being known by the one or by the other name, had been suf­ficient to have found for the Plaintiff.

Serjeant Harris moved in Arrest of Iudgment, that it being tryed Per Venire facias de vicineto de Ulceby, it was mis-tryed, for when Nul tiel vill. is pleaded, it shall be tryed per Corpus Commitatus, 8 H. 6. 38 H. 8. & 24 E. 4. 4: Fitz. visne 27. And he vouched 45 E. 3. 6. where such an Issue was tryed, but it did not appear how the Venire was a­warded. And at the first time of this motion it appeared, prima facie, to be a mis-tryall.

Bawtry at another day moved it, and said, that the Writ is Quod permittant presentare, to the Church of Ulceby, and the Count accor­ding therwith, it is to be intended a Town or Parish: And he re­sembled it to the case of an Appeal against one by the name of I. S. of Dale, Carpenter, and he traversed that he was not dwelling at Dale, and it was a good tryall from Dale: And of, in, and at, are all one; but said, that in the Count it is said, that Edward Coppledick died at Ulceby: And all the Court agreed that it is a good tryall, and that it is admitted that there is such a Town, and the Writ implies it: And Iudgment for the Defendant.

Smith versus Linsey.

Scire facias. A Scire facias against Michael Linsey late Sheriff of Kent, by Smith, reciting, that wheras he had recovered a hundred pounds against Sir Richard Potham, and had sued a Scire facias, the Defendant being Sheriff, returned that he levyed sixty and three pounds which he had ready at the day,Scire facias against a Sheriff to have executi­on against him of money returned levi­ed by him. and yet he did not bring the moneys into Court; and after it was removed de son Office, and to know why he should not have Execution against him of the said summ, with which he had charged himself by his return; and the Defendant demurred, and upon read­ing of the Record, Iudgment for the Plaintiff, according to the case, 9 E 4 50. vide F.N.B. 165. 34 H. 6. 36. a. and 5 E. 3. 53. Fitz. Execution 101. And between Richards and Speak, it was adjudged in this Court, that Debt lies against the Sheriff, that hath charged himself by his re­turn, that he hath levied the money.

Replevin. Annuity for life to com­mence after 8. years menti­oned in the Will, where there is no mention made therof.Cony versus Cony.

PAragrin Cony awows (in a Replevin brought by Sir Thomas Co­ny his Brother) for twenty marks per annum, granted to him by the will of his Father for life, to commence after the end of eight years contained in the Will, and in the Will no mention is made of any eight years, and that was averred, and by the opinion of the Court it ought to commence presently.

Trin. 17 Jacobi. Smith versus Sir John Boucher. Mich. 16 Jac. Rot. 3339.

EDward Smith brought a Writ of Annuity against Sir John Bouch­er, Annuity. and Thomas Jones de placito quod red. ei 120 l. and Count that the Defendants by their Deed (shewn in Court) reciting that wheras the King (by his Letters Patents) had granted to them,A grant of an Annuity out of the profits of Allome. and to one William Turner certain Priviledges and Licenses concerning the making of Allome within this Realm, and within the Realm of Ireland for twenty seven years, for the Councell given before by him to the Defendant (he being Counsellor at Law) concerning the drawing of the Letters Patents: And for his Councell to be given af­terwards, granted to him the said annuall summ of 40 l. for 26 years next, payable at Midsomer and Christmas. The Defendants plead that the King granted the sole, making of Allome to them as in the Letters Patents, and confesse the grant of the Annuity to the Plaintiff by Deed indented, one part wherof sealed with the Seal of the Plaintiff they show, &c. But further said, that the said Annuity was granted Percipend. extra clara lucra & proficua, which accrue to them by the making of Allome: And they aver, that no clear gaines or profits have accrued to them, or any of them by the making of Allome, since the making of the said Indenture, wherupon the Plaintiff demur.

1. And Iudgment was given for the Plaintiff, for it is one good Grant of an Annuity to charge their persons: And so of a Grant of an Annuity to be paid out of such Coffers or Bags, vide 9 H. 6. Margery Parkers case, vide 22 H. 6. 12.

2. Also the limitation is to perceive of the clear gaines, and plead it by the Counter-part of the Indenture, and that ought not to be, but they should have demanded Oyer of the Deed, and then either demur or plead that the same Deed was granted over, &c.

3. It is not averred that no other person received or made any clear gain, but only that the Defendant made no clear gain.

Burglary.

MEmorand. At the Assises holden at Winchester in the last Cir­cuite, before the Lord chief Baron Tanfield (it being the third Circuite which I went with him:) It was a question, whether one which had a Shop in the dwelling house of another, and he which had the Shop work'd therin in the day, but never lodged there, and yet he had a house out of the Shop to the Street, if this Shop be broken in the night, and divers Goods stoln out therof: if, it be Burglary.Burglary. And the Lord chief Baron and I resolved that it was no Burglary, because that by the severance therof by Lease to him which had it as a Shop, and his not inhabiting therin, it was not any Mansion house or dwel­ling house, & ergo no Burglary, but ordinary Felony.

Mich. 15 Jac. Adavis versus Flemming.

Case.AN action of the Case was brought for these words, Thou hast for­sworn thy self before the Councell in the Marches (innuendo in the Marches of Wales) in a Suit which I have there, and I will sue thee for Perjury. Words. And after issue of Not guilty pleaded, and Verdict for the Plaintiff; It was moved in Arrest of Iudgment by Chibborn, that the Common Law takes no notice of any such Councels, and they are to meddle according to instructions, and if it be not warran­ted therby, then no Oath wherupon any remedy: And therfore it was adjudged that if one say, another is forsworn or perjured in Canter­bury Court, no action lies, for we cannot take any notice of any Court in Canterbury, which hath power to administer an Oath. But Serjeant Harris said, that this Councell of the Marches, is established by 27 H: 8 cap: 32. and have power to examine Witnesses and to admi­nister an Oath, and is also mentioned in the Statute 5 Eliz. that Per­jury committed before the Councellors of the Marches shall be punish­ed by this Statute. And the Court was of opinion that the action well lies, for the Councell of Marches (without innuendo) is sufficient, for there is no other Councell of Marches. And as the Court take no­tice of the Court of requests (for if one saies another is perjured there it is actionable) so of this Court which is established by Statute, and concern the King, and therof the Iudges ought to take notice; Iudg­ment for the Plaintiff. And by Lord Hobart, if one saies, another is forsworn in the Common place, an action lies:

Mich. 17 Jac. Bayshaw versus Walker.

Case.AN action of the case was brought for saying, Thou art a filtching Fellow, and didst filtch four pounds from me; And after Verdict for the Plaintiff it was moved in Arrest of Iudgment, that the words were not actionable: And so the Court resolved, for the word siltching is dubious, and may be by Cousenage, by shifting, by deceit, and is not Felony but by Implication; and it is not good to enlarge actions for words, Plaintiff Nil capiat per breve.

Green versus Harrington.

Case. Assumpsit lies not for Rent. PEter Green brought an action upon the case against Thomas Har­rington, and counts, that wheras the Defendant such a day was indebted to him in ten pounds for the rent of one House and land which he had demised to him for one year then past, the Defendant promised to pay it upon request; and upon issue Non Assumpsit, it was found for [Page 35] the Plaintiff, and moved in Arrest of Iudgment by Chibborn, that no action lies upon this promise, because it is Debt for the rent for Land; and the Assumpsit is of a lesse nature, as if one he indebted upon an Obligation, and that being forfeited, he promised to pay it, no action lies, for the Debt is due upon the Obligation:Albanies. case. And the opinion of the Court accorded. This was ruled in Albanies case of Lincoln [...] Inne in Banco Regis.

Trin. 17 Jac. Rot. 1849. Castilion versus Smith.

AN action of Covenant was brought by Sir Edward Castilion a­gainst Thomas Smith as Executor,Covenant Iudment a­gainst Execu­tors for Covenant broken by them, shall be De bonis testa­toris. Iohnson and Barker. & a breach assigned by act done by the Executors; and after Verdict it was moved if Iudgment should be De bonis propriis, by reason the breach was made by the Executors: And it was resolved that it should be de bonis testatoris. And where the Writ is in the Detinet only, there the Iudgment shall be de bonis testatoris, vide the like Iudgment, Hil. 33 Eliz. Rot: 1143. between Johnson and Barker.

Pies Case.

PIe exhibited an Information upon the Statute of the 35 of Eliz. for converting of a house in London into many dwelling houses; and upon Not guilty pleaded, the Defendant is found guilty. But be cause the said Statute is discontinued by the 43 Eliz; Costs against an Informer. and there is now no such Statute, the Court (upon motion in Arrest of Iudgment) a­ward, that the Defendant eat inde sine die: And whether the Defen­dant in this case shall have costs upon the Statute of 18 Eliz. cap. 5. was the question.

The words of the Statute are, if any Informer willingly delay his Suit, or discontinue, or be non-suited, or shall have the matter, or the try­all passe against him by Verdict or Iudgment in Law, he shal pay costs.

1. Object. It was objected, that this Statute doth not extend but only to penall Statutes which then were in Esse.

Answ. To which it was answered by the Court, that this Statute was a perpetuall direction to all Informers.

2. Object. It was objected, that if there be no Statute, then there is no Informer.

3. Object. In this case Verdict is sound for the Informer, and he may be presumed to be ignorant: And there is no reason that he shall pay costs for default of his Councell.

4. Object. There is no Iudgment against him, but that the Defen­dant eat inde sine die; and that is no other then an exception in stay of Iudgment:Keldridges case. And a President was cited by Henden 25 Eliz. Banco Re­gis; there upon an Information against Keldridge, and another upon the Statute of 35 H. 8. for not inclosing Woods, but suffering them to lye open after cutting by the space of one month: he alledged the cut­ting [Page 36] the tenth of April, and the lying open untill the second of May, which was not a month: And upon Not guilty pleaded, it was found for the Plaintiff; and upon motion in Arrest of Iudgment, it was a­warded that the Defendant eat inde sine die, and no costs.

And the Lord Hobart said, that this Statute was made for the ease of the Subject, and for avoiding and preventing of vexations, and ther­fore did enumerate all the cases in which the Informer could not pre­vail, and had many words that the Statute of 23 of H. 8. or any other Statute doth not give expresly costs upon demurrer; and this is not within 23 H. 8. if upon discontinuance: And now the matter passe a­gainst the informer, be it by Verdict or Iudgment, all is one, for the makers of this Statute intended to curb all vexatious Informers: And if it shall be suffered that Informers may inform upon Statutes not in force, and pay no costs, that would open a Window to the great vexation of the Subjects. And for Presidents not inflicted upon, they are of little esteem. And I concurred, and though Verdict be found for the Informer, yet there being no Statute there can be no Offence, and it is in Law as not guilty; And this case is within the meaning and Letter of the Statute, for the Statute intend costs where the cause passe against the Informer, be it by default of matter or form.

Winch doubted of this speciall case, because the matter is found for the Informer; but he agreeh if it were upon Iudgment; upon demur­rer or speciall Verdict, costs should be given.

And Iustice Warburton was of opinion, that there should be no costs in this case, for he is not capable to sue where the Statute is disconti­nued: And so if the Venue be misawarded, and he said, that he had conference with the Lord chief Baron, who also held that there should be no costs in this case: And so the matter rests.

Blackburnes Case.

Debt. AN action of Debt was brought by I. S. against Blackburne upon a Lease for a year, and so from year to year; And upon Nil debet pleaded, the Iury gave a speciall Verdict to this effect.

A Devise to a Feme of a term upon condition. Wells seised of Land in Fee, devised them to his Daughter and her Heirs, when she come to the age of eighteen years, and that his Wife should take the profits of the Land to her use, without any account to be made untill the Daughter come to the age of eighteen years: And made his Wife his Executor and died; And it was provided that the Wife should pay the old Rent, and find the Daughter at School untill she could read and write English, the Feme enters and proves the Will, takes Husband and dies, the Husband assign this term to the Lessor who brought this Action. And it was found that all the Conditions were performed, and that the Daughter was within the said age of eighteen viz. thirteen years.

And the sole question was, whether it be a term for years in the Wife, and whether (when she takes Husband) he shall have it after the death of his Wife; and it was ruled clearly that it is, and it being by Will it is a good Lease.

Another question was, if this trust of Education be Quasi a Limita­tion [Page 37] personall, and with intent that the Lease shall not be to the Wife a­ny longer then she may educate her Daughter: And it was agreed that it was not, for any one may educate her, and find her at School, and there it is without any default in the Wife, for it is the act of God; and therfore Judgment for the Plaintiff.

Trin. 17 Jac. Whittingtons Case.

IVdgment in Debt against Ferdinand Earl of Derby, Scire facias. Sci. fac. by the Baron and Feme, the death of one of them shall abate it. at the Suit of I. Whittington, and his Wife (she being Administrator to her Hus­band who had the Iudgment) who brought a Sci. fac. upon the Iudgment against 30. Ter-tenants, they appear and all besides 3. plead, that at the time of the Iudgment Ferdinand the Earl was seised in tail, &c. And the Plaintiff had Iudgment against the three with a cesset executio; and afterwards Whittington the Husband died, and this is surmised and entred vpon Record, viz. the death of the Baron after the Darrein continuance; and whether the Writ shall abate or no, was the questi­on: And per totam Curiam the Writ shall abate, for the Wife there cannot recover as a Feme sole; and though this Writ be judiciall, yet it is in nature of an Originall, for she might have had an action of debt upon the Iudgment, and ought to have that action solely after the year, untill the Statute of Westminster 2. which give Scire facias, and to this Writ they may plead: But in Writs Iudiciall, which are only Writs for the doing of execution, there the death of one shall not abate it, vide 19 Ass. 10. & 25 E: 3. and vide Reads case, Coke lib: 10. fol. 134.

Ruggles Case.

IN Ruggles Case, upon the motion of Serjeant Arthure, upon the Statute of 1 Jacobi cap. 15. concerning Bankrupts, How the di­stribution of the Estate of a Bankrupt shall be. a Commission was sued out by some of the Creditors, and they pursued it, and the Land was sold, and it being opposed, they defended their severall Suits, and prevailed by a tryall at Bar: And after other Creditors (which before would neither partake nor aid them) came and prayed to be joyned with them. And the Commissioners doubted upon the Statute, whether they might allow them to be joyned; and the words of the Statute are, That it shall be lawfull for any of the Creditors of the Bankrupt within four months after the Commission sued forth, and till distribution shall be made by the said Commissioners, for the pay­ment of the Bankrupts Debts, as in such case hath been used, to partake and joyn with other Creditors that shall sue out the said Commission, the said Creditors so joyning, to contribute to the charges of the said Commission, and if the Creditors came not in within four months, then the Commissioners to have power to distribute.

It was resolved, that the Commissioners may sell and prepare for distribution presently upon the execution of the Commission; but un­till the four months are passed, they may not proceed to distribution; [Page 38] for the Creditors which inhabite in the remote part of the Realm, per­adventure cannot have notice: and it may be carried so secretly, that if they might distribute presently, that they which sued out the Com­mission should be only satisfied, when indeed there was no default in the others.

Also it was resolved, that the offer of Creditors to be joyned, and before they be partakers, is not an affectuall offer, without offering to be contributory to the charges: But to offer any particular summ, is not necessary, because they know not what summ is disbursed, and that is to be assessed by the Commissioners. And the words (for the charge of the Commission) is to be extended to all charges arising in suing forth the Commission, and in execution and defence therof.

Also it was resolved, that at any time before the distribution made, they may come and pray to be joyned: But after the four months pas­sed, and any distribution made (though it be but of part) then they come too late: For by this means the distribution which is made, and wherby some of the Creditors shall receive more, shall be utterly a­voided, and another proportion made, which was not the intent of the Statute.

Pasch. 18 Jac. Mason versus Thompson.

Case.AN action upon the case was brought for these words, I charge thee with Felony for taking money forth from Iohn Spaci's Pocket, and I will prove it.

Words. Henden moved in Arrest of Iudgment that these words were not a­ctionable.

First, because that it is not any direct affirmative that he is a Felon; and for that he vouched a case (as he said) adjudged in the Kings Bench, Masters, bear Witnesse that he is a Theef.

The second reason was, because that the matter subsequent do not contains matter which must of necessity be Felony, but stands indifferent: For if it be not privily and secretly, it is not Felony; and it may be by way of sport, or trespasse: For as one said, That he is a Theef, and stole his Timber, it is not actiona­ble, for it might be Timber cut, or Timber growing: so to say, That he stole his Corn or his Apples, or his Hope: For in Mitiorem partem verba sunt accipienda. And it seemed to the Lord Hobart that the first words, viz. (I charge thee with Felony) are actionable, for the Constable (if he be there present) ought to apprehend him therupon, and it is a plain Affirmative. I arrest thee of high Treason; Iustice Winch prima facie held, that the words were actionable; and not quali­fied by the subsequent words, as it should be if he had said, For thou hast stoln my Apple Trees standing in my Orchard, that could not be Felony, but it is not so there, for it may be Felony, and ex causa di­cendi, it shall be taken Felony, in these words, for taking money, &c. Warburton and Hutton was of opinion that the Action lay not.

This Case was moved in Mich. 18 Jac. And then the opinion of the Court (praeter Warburton qui haesitavit) was that the Action did not lye. Ideo memorand. quod quetens nil capiat per breve.

Trin. 18 Jac. Hall versus Woollen.

JOhn Hall an Attorney of this Court,Case. Consideration of an As [...]ur [...]p sit. brought an action upon the case against Woollen, and declared, that wheras the Defendant was pos­sessed of an House and Land in Mekon Mowbray in the County of Leicester, for one term of the Lease of Sir John Woodward: And wheras one Webb was in communication of buying the said Lease of Woollen, and Woollen could not sell it without the assent of Sir John W. The Defendant in consideration that the Plaintiff would procure licence of the said Sir John, he promised to pay to him so much as he should disburse, and deserve therfore: And averred that he did pro­cure a License, and delivered it to the Defendant, and disbursed such a summ, and deserved for his labour such a summ; and the Defendant upon the Count did demur. And the question was, whether that were a good consideration or no, for it did not appear that there was any con­dition to restrain him from making an Assignment; and if I pro­mise, that (wheras I am obliged to A.) if you will procure B. (which is a stranger) to make a Release therof to me, I will pay you forty pounds, though it be done at my instance, no action lies, for it is appa­rant that B. could not release the Obligation: But it was adjudged that is a good consideration, for it appears that there was privity be­tween them, and it may be that he had promised that he would not as­sign it without his licence: And in good discretion it was convenient to have it, also it was at his instance, and for his satisfaction: And it hath been adjudged, if one promise forty pounds to another, if he can procure the assent of the Mother of a woman, though he may do it without such consent, yet it is a good consideration.

Mich. 18 Jac. Clerk versus Wood.

CLerk brought an action upon the case against one Wood, Case. alias War­ren, and count that he was seised of an house and twenty acres of land, &c, in Thursfield; and that he and all those whose Estate he hath, have had a Common in seven acres in Thursfield; And that he and all those, &c. have had one way leading through the said seven acres,Ven. fac. upon prescription for a way in divers Town [...]. and from thence into one Common way leading to Buntingford, and from Buntingford to Blakeley: And that the Defendant had plowed and turned up the seven acres, and estopped the way. The Defendant plea­ded not guilty, and the Venire facias awarded de Tursfield. And it was moved in Arrest of Iudgment by Serjeant Jones, that it ought to be from all the Towns through which he claim his way, for he ought to prove it in evidence, viz. that he had a way, or otherwise he is not endamnified. But it was resolved that the tryall was good, for Not guilty is properly a deniall of trespasse and disturbance; and though [Page 40] he ought to prove title to the way, yet it is sufficient if he prove title to the way by and through the seven acres upon evidence. And yet if the Prescription had been traversed, then he ought to prove all the way, any the tryall shall be from every Town through which the way is pleaded to be extended, quod vide 10 E. 4. fol. 10. where it was in two Counties, and the Venire facias shall be from both, and the tryall shall not be by Nisi prius: vide the case between Reyner and Water­house supra.

Mich. 16 Jac. Rot. 2344. Lamb versus Thompson.

Debt. A Condition not to be assi­sting to ano­ther, hinders him not to bring a Writ of Error joyntly with him. EDmund Lamb brought an action of Debt against Richard Thomp­son, upon an Obligation of forty pounds; the Condition whereof was, If the Defendant shall not be assisting, or any waies aiding unto Thomas Elme, or any other person for the said Thomas Elme, in any Actions, Suits, Vexations, &c. to be commenced and prosecuted a­gainst the said Plaintiff, &c. That then, &c. the Defendant pleaded Negative: The Plaintiff reply, that he such a day brought Tres­passe against the said Thomas Elme, and the now Defendant, and had Iudgment; and that the Defendant joyned with him in a Writ of Error, in hinderance of the Plaintiff to have execution against the said Thomas Elme, and so was aiding and assisting unto the said Thomas Elme: Wherupon the Defendant demurred, and it was adjudged by the Court, that this prosecution of a Writ of Error to discharge him­self of an erroneous Iudgment, is no breach of the Condition, no more then if the Plaintiff had released, and he had brought an Audita Que­rela: And it shall be intended in this case of a Suit to be solely com­menced by the said Thomas Elme; and if he will restrain him, that he joyn not in a Writ of Error, it ought to be precisely contained in the Condition, and shall not be taken by a large Exposition, to the for­feiture of an Obligation, by a generall and ambiguous sentence. It was urged that the Defendants had power to have severall Writs of Error, 11 H: 6. 9. But the Court resolved, that being the Costs were joynt, they ought to joyn, vide Coke lib: 6. fol: 25. but the release of one will not bar the other, vide 34 H: 6. 42. & 35 H: 6. 10. that this Suit is in discharge of the Defendant, and not to charge the Plaintiff; and ther­fore the Condition is not broken, vide Dyer 253. A Condition to suffer a Lessee quietly to enjoy, the word (suffer) guide all the sentence in favour of the Obligor; and Iudgment cannot be reversed in part, and stand for the other part, or be reversed against one, and stand in force against the other, except in speciall cases. As where Infant Tenant for life, and he in remainder of full age levy a Fine, that shall be re­versed as to the Infant, and stand for the remainder, for it is no other then as a Conveyance;

Mich. 18 Jac. Powell versus Ward.

AN action of the case was brought for these words,Case. Words. I have matter e­nough against thee; for Iohn Halden hath found forgery against thee, and can prove it: And after Verdict it was resolved by the Court, that the words are too generall, & will not maintain an Action, no more then if one said, that another had forget a Warrant, for it might be a Warrant for a Buck; and this is not right Affirmative.

Sherley versus Underhill.

A Quare impedit brought by George Sherley Baronet,Quare Impedit. Error in Qua­re Impedit. against Un­derhill and Bursey, for presenting to the Vicaridge of the Church of Nether Elington, and count of a Nomination as appendent to the Mannor of Elington, and Issue therupon, for they pretend it to be ap­pendent to the Rectory of Elington: And it was found for the Plaintiff at Warwick Assises, and Iudgment there for him, and a Writ to the Bishop, and therupon a Writ of Error was brought in the Kings Bench, and it was to remove a Record which was between George Sherley Knight and Baronet, and the truth was, that Sir George is not, neither was named Knight by all the Record: And therfore the o­pinion of the Court was, that the word Knight is part of the name, and so no Record was removed: And it is so materiall that the addition where there is none, or the omission where it is, Knight, makes it no such Record, and they perceiving it discontinued their Writ.

Memorand. That though Iudgment was given at the Assises, the Writ of Error was directed to the Lord Hobart, and the Record is de­murrant in the Court of Common Berich. And now it was moved, that the Iudgment might be amended, for it was Quod recuperet pre­sentationem suam ad Ecclesiam praedictam. And the value sound of the Church aforesaid: And it should be Quod recuperet praesentationem ad vicariam Ecclesiae, & valorem vicariae Ecclesiae: And it was urged that it was not the mis-prision of the Clerk, but of the Court; and Iudgment erroneous in point of Law is not amendable, for if it be Quod capiatur, where it should be Quod sit in miserecordia, it is not amendable. But it was resolved and so awarded by the Court, that it should be amended: And the reason is, because the Verdict is gene­rall, and they found for the Plaintiff, and the Iudgment ought to a­gree with the Verdict: But it is solely mis-prise by the default of the Clerk, for the Record precedent is in every part, and in the Issue and Verdict, Vicariam Ecclesiae; And by the Statute 8 H. 6. cap. 15. that is amendable, for the mis-prison of the Clerk in the Record shall be a­mended, though it be in the Iudgment,Wilde and Woolfe. Mich. 33. & 3 [...] Eliz 230. vide Dyer 258. Also Mich. 33. & 34 Eliz: Rot: 230. between Wilde and John Woolfe, Ideo considerat. est quod praedictus Thomas Wild recuperet versus praedictum Thomas Woolfe, where it should be John; and Error was brought, and it was amended.

[Page 42] Stepney and Woolfe.42 Eliz: Rot: 693. An action of the case by Stepney against John Mor­gan Woolfe. Id. consid. quod recuperet versus praedictum Morgan Woolfe, and there was no such Defendant, but John Morgan Woolfe, and it was amended upon Error brought in the Exchequer Chamber.

And vide Coke lib: 8. fol. 164. Blackamores case, more cases upon this learning; where the mis-prison of the Clerk in the entry of the Iudgment of a thing which is apparent, and not of necessity shall be a­mended, as in Mis-prision of the summ of Arrerages before and pen­ding the Writ of Annuity shall be amended, vide 9 Eliz: Dyer 258.

Mich. 18 Jac. Sir Thomas Wentworths Case.

Replevin.SIr Thomas Wentworth brought Replevin, the Defendant avowed for a Rent granted,Demand of Rent with a Nomine poenae after Issue joyned upon other matter. and a Nomine poenae, and shews not any De­mand of the Nomine poenae; But the Issue was tryed, and found upon other matter, viz. Non concessit: And now it was moved in Arrest of Iudgment, that he avowed for a Nomine poenae, and did not alledge a­ny demand therof; yet Iudgment was given for the Avowant: For it is matter confessed, and the Action is a request, viz. the Avowry, for he is there the Actor: And it is but a Circumstance collaterall to the right: And in Actions upon the Case founded upon a promise, after re­quest a Licet saepius requisit, shall be a sufficient Allegation of a re­quest.

Davies Case.

Statute-Mer­chant without day of pay­ment.ONe Davies acknowledged a Statute-Merchant at Glocester in three hundred pounds, and the Statute did not limit any day of pay­ment, and yet an Extent was sued; And upon motion by Serjeant Harris, a Supersedeas was awarded; for that is no Statute, for they had not pursued the Authority given by the Statute: For the Statute of Acton Buanell, 11 E. 1. saies, if the Debt be not paid at the day: And though Debt upon an Obligation is payable presently, if the day be not expressed, yet there the Statute appoint a day certain.

Pasch. 15 Jac. Rot. 1714. Cartwright versus Underhill

Trover and Conversion.AN action of Trover and Conversion was brought by Abraham Cartwright against Clement Underhill: And upon Not guilty pleaded, there was found a speciall Verdict to this effect.

Bankrupt.Francis Bayle being a Merchant, had made a fraudulent Deed to the Defendant of the Goods contained in the Count, but afterwards he went abroad to Church, to the Exchange, and did Trade and Com­merce: [Page 43] And yet afterwards it is contained in the Indenture of Sale by the Commissioners to the Plaintiff, that he had made this fraudulent Deed, and that afterwards he had traded and served the Exchange untill a day after, at which day he wholly absented himself. And upon this speciall Verdict the Defendant had Judgment.

For every Deed to defraud other Creditors (but those to whom such Deed is made) is not sufficient to make one to be a Bankrupt: But if he make any Deed after he begins to be a Bankrupt, it shall not bind: But upon the Statute of 1 Jacobi, which makes him a Bank­rupt, which make fraudulent Deeds, it ought not to be as this case was, viz. so long before he became a Banrupt: And there were many more imperfections in the speciall Verdict.

Hill. 18. Jac. The Earl of Clanrickards Case.

THe Earl of Clanrikard, and Frances his Wife,Writ of Right. brought a Writ of Right against the Earl of Leicester; Essoin upon the return of an alias Sum­mons. And upon the Summons be­ing returned (but no return of proclamation made at the Church of the Parish where the Land lies upon the Lords day Post praedicationem sive Divinum Servitium) there was an Essoin cast, and that was ad­journed in the Essoin Roll: And the Demandauts perceiving the re­turn to be insufficient, they sue an alias Summons, which having great returnes (as all the Writs issuing out of this Court in a Writ of Right, or other reall actions ought to have) was returnable, Oct: Hil: And the Tenant cast an Essoin upon the alias Summons: And it was moved at the day of Essoin, and now also at the first day of the Term by Serjeant Harris, that an Essoin did not lye, for he had an Essoin be­fore: And by the Statute de essonii calumniand. 1 [...] E: 2. Non faciant quia alias se essoviant: And the Statute 31 Eliz: cap: 3. which gives the Proclamations, hath prouided that no Grand Cape shall be awar­ded upon this default, but only an alias Summons, so that the Writ is good and stands, and therfore he shall not be otherwise essoined: But it seemed to the Court to be otherwise here; for the first Essoin is as Nul, and therfore vide Dyer 252. that when the Sheriff return tarde in a Formedon, and the Tenant is essoined, and that is adjourned, it is of no effect, but he shall be essoined upon the other Writ of alias, &c. vide 24 E. 3. Br: Essoin 24. accord. also vide 21 H. 6. That upon the re­summons after the death of the King, the Tenant shall be Essoined, and yet the first Writ and all is revived: And in this case though the party may appear to the first Writ, [...]ne, note besoigne de ject un es­soign, for the nature of that is to save a default, so that no Grand Cape shall be awarded, and there no Grand Cape ought so be avwarded, and therfore the Essoin before not avoidable.

Hil. 18 Jac. Rot. 739. Bridgeland versus Post.

Dower. Counter-plea to the View. BRidgeland against Post and his Wife in a Writ of Dower, the Tenants demand the View, and the Demandant counter-pleads the View. Quod le tenant n'ad entry nisi per le Baron; And therupon the Tenant demur: And it was adjudged a good Counter-plea, and the Tenant ousted of his View, Accord. 9 E. 4. fol: 6. vide 2 H: 4. 24.

Pasch. 19 Jac. King versus Bowen.Case.

Words. KIng brought an action of the case against Bowen a Minister, for saying, Thou art a false forsworn Knave, and didst take a false Oath against me at a Commission at Ecclesall (innuendo a Commissi­on sued out of the high Commission.) the Defendant justifie, and after issue tryed and found for the Plaintiff, it was moved in Arrest of Iudg­ment, that these words were not actionable, for it doth not appear in the Count, what Commission, nor out of what Court, nor what matter he did depose, but generally, that he had taken a false Oath at a Com­mission. The former words (forsworn Knave) will not maintain an action, otherwise of Perjuted Knave, for that shall be intended in a legall sence; and no Innuendo will supply matter which give not cause of action, nor the Iustification: But the words ought to contain scandall in themselves, without any supplement. An action lies for say­ing, one had forsworn himself in a Court Baron, and to say, he had for­sworn himself in the Common place; but to say, that one hath for­sworn himself at the Bar (innuendo the Bar of the Common place) will not maintain an action, Querens nil capiat per breve.

Pasch. 19 Jac. Tippin versus King.

Wast.SIr George Tippin Plaintiff, in an action of Wast against King, and alledge Wast in severall Closes Sparsim: Inquiry of da­mages. And Iudgment by nihil dicit, and an Inquiry awarded, the Iury found but eight pence Da­mages: And upon motion for a new Writ, it was resolved, that the Iury ought not now to enquire of the Wast: And therfore the diffe­rence is, when the Plaintiff upon the distresse recover upon the Sta­tute; there the Statute gives power to enquire of the Wast: But in this case the Wast is confessed Per nient dedire, Ewer and Moyle. Dyer 204. a. accord: And it was so adjudged between Ewer and Moyle upon demurrer in Wast, there the Wast is confessed, and the Writ shall be only to en­quire [Page 45] of the Damages; so if the Plaintiff will release his Damages, he shall have a Writ upon Iudgment of the place wasted.

Mich. 18 Jac. Rot. 2805. Pitt versus Chick.

MAtthew Pitt brought Replevin against Chick; Replevin. The Defendant avow, for that the place contains five acres, which lye between the Lands of Sir George Speck: And that the said Sir George Speck and all his Ancestors,Prescription to have Her­bage. de temps d'out, &c. have used to have Herbage and Pasture of the said five acres, viz. if they were sowen, then after the reaping untill re-sowing; and if they were not sowen, then for the whole year, and convey Title to the said Herbage by Lease in writing to him, and avow Damage feasant.

And it was urged, that he which had all the profit for a time, and the sole profit, had the Free-hold; and that is not a thing which lye in Prescription, semble al Common, or so pasture for a certain number of years: And it was said, that a Grant de vestura terrae, or de herbag. terrae for one and twenty years, is a good Lease. But it was adjudged, that it is a good Avowry, and he had only profit a Prender, and that he might have an Assise, or justifie for Damage feasant: And he which hath the fore-crop is he which hath the Free-hold, 15 E. 2. Fitz. Prescrip­tion 51. And the very case in, temps E. 1. Fitz. Prescription 55. and this sole feeding might have Commencement by Grant, and therfore a good Prescription. Iudgment for the Avowant.

Trin. 19 Jac. Wilson versus Stubbs.

WIlson brought Replevin against Ralph Stubbs; Replevin. The Defendant avow as Bayliff to the Earl of Northumberland, for Amerce­ments within a Leet at Toxcliffe. And upon Issue joyned, and tryall at the Common Pleas by Default, it was alledged,Supersedeas up­on Indempnita­te nominis. that Ralph Stubbs was dead; and the Plaintiff would proceed, and had Iudgment, Da­mages, and Costs sixteen pounds, and a Capias awarded to the Sheriff of York, and Ralph Stubbs the Son, as is supposed, is taken, and had an Indempnitate nominis, which Writ being directed to the Iustices, they award a Supersedeas: And now upon divers motions, the sixteen pounds was brought in Court, and they proceed upon the Indempnitate nominis. The question was, if the Supersedeas lye therupon, being that it is only a surmise and matter en fait, and lies properly and more frequently, for preventing an Arrest upon Outlawry, and after that the party is taken upon the Outlawry, vide 5 E. 4. 23. & vide lib: Intrat. and it is matter not frequent in use, and is in nature of an Audi­ta Querela, and the party shall find surety to pay the Debt, if it be found that he be not another person: And the Court inclined strongly that it is no Supersedeas, but it is much in the discretion of the Court, vide lib: Intrat. 5 E. 4. 36. bone Case, and fol. 51. & 53.

Mich. 19 Jac. Allen versus Swift.

Case. ALlen brought an action of the case against Swift, and declared, That wheras he bargained and sold, that is to say, Merchandi­zed for Lead in the County of Derby, Words. and therby hath acquired money towards his livelyhood: The Defendant said of him, He is a Bank­rupt, and is not able to pay his debts, but will run the Country; It was found for the Plaintiff, and moved in Arrest of Iudgment by Ser­jeant Harvey, that the action lay not, because that the Plaintiff shewed not, that he used it as his Trade, nor that he gained his living by buy­ing and selling; Also he is entituled Gentleman. But the Court hold that the action would well lye, and it had been adjudged 14 Eliz. That a Tanner shall have an action for such words.

Mayes versus Sidley.

Case. Consideration of forbea­rance. MAyes brought an action of the case against Sir Isaac Sidley, and count, that wheras one was indebted unto the Plaintiff in a hun­dred pounds by Obligation, the Defendant in consideration that the Plaintiff at his request would forbear to sue the said party, and if he did not pay it, the Defendant would; And upon Non assumpsit pleaded, and Verdict for the Plaintiff, Hitcham moved, that is no good consideration, for it is uncertain, for if he forbear one hour, one day, this is a forbear­ance; And he resembled it to Palmers Case, forbear him a little while, and if he do not pay it, I will: This was adjudged for the Plaintiff in Banco Regis, but afterward by a Writ of Error it was reversed. And he cited a President (which was shewn) of the 36 of Eliz. where the case was the same in effect with this: And Iudgment reversed, but it might be for other Errors.

And the Court inclined that this action lye, for when it is alledged that he did forbear, it shall be intended of such a forbearance by which the party had ease and benefit, and shall be a competent and conveni­ent time; and that shall be convenient time, as in other cases: As Tenant pur auter vie, shall have convenient time to remove his goods after the death of Cestui que vie; And it shall be convenient time to purchase a Writ by Iourneys Accounts: And it was said, that there were many Presidents of this case, and of the like actions, for if he doth not forbear convenient time, then it is no consideration, and it being left indefinite, the Law will judge of the convenient time, but it was adjourned, and after the first day of Hil. 21 Jac. This case was moved by Hitcham, and he said, that the Writ and Count vary, for the Writ is Per magnum tempus distulit: And the Count saith, that he did forbear for the space of a year and more: Also no time is put in the Writ, but is in the Count, and that he did forbear by a year and more after that; so that it doth not appear that he did forbear till the Writ purchased, for that appear to be half a year after the year passed, and he ought to forbear it totally. Richardson answered him, that the [Page 47] breve, Writ did not comprehend the time and circumstance, but the matter and substance, and [...]ot at large, for then it should not be breve; As in a case sur Trover, no day in the Writ, but in the Count, and forbearance of a year and more being alledged, and issue taken and found for the Plaintiff, it shall not be intended that he had sued, and not forbeared till the commencement of that Suit: And it is like to a grant of a Rent (pleaded without Deed) and issue joyned upon non concessit, and it is found Concessit, and good, for it shall be intended effectuall, &c.

And the Court shewed their Iudgment, and concurred that Iudg­ment should be given for the Plaintiff: And this difference was taken when the promise appear to be such, that it shall not be any benefit to the party in whose behalf it was requested, as forbearance for an hour, or a little time, there it is not good, but where it is generall and not limited to any time, that shall be a [...] ill forbearance, or at least a for­bearance for a convenient time, and that ought to be alledged for such a time, which the Court shall adjudge a convenient time.

Lord Hobart agreed, but he said, that it is not a totall forbearance, for then it should be that he should not sue him at all, but that he will forbear, is good by the subsequent forbearance; and there is no varia­tion between the Count and the Writ, but the Count illustrateth, and amplifies the Writ. Iudgment pro querente.

Pasch. 20 Jac. Suggs versus Sparrow.

IN a Scire facias against the Bail,Scire facias. he plead that after the Iudgment and before any Writ of Capias was sued out against the Principall, he died: And upon Demurrer the Court adjudged it a good plea;Bayle is dis­charged where the Principall di­ed before Ca­pias awarded. Tadcaster a­gainst Hollow­ell. Timberley and Calverly. and i [...] this case a Iudgment was cited, Hil: 10 Eliz. Tadcaster brought debt against Hallowell, Hobs was Bail, and the Plaintiff recovered: The Defendant brought a Writ of Error in the Exchequer Chamber upon a new Statute, and after divers terms Hall died, and after the Plain­tiff was non-suited, without mention made of his death. Tadcaster brought two Scire facias against Hobs, and upon two Nihils had Iudg­ment: Hobs brought an Audita Querela, alledging the death of Hallow­ell before Scire facias, and before Capias; and it was adjudged that the Audita Querela well say, and Hil: 4 Jac: Rot: 975. between Timberley and Calverly, Scire facias brought against the Bail, and he pleaded that the Principall died before Capias returned against him; And Iudg­ment upon argument given against the Plaintiff: The like Iudgment between Iustice Williams, and the Sureties of one Vaughan.

Hil. 19 Jac. Rot. 312. or 3125. Walrond versus Hill.

Debt. WAlrond brought an action of debt upon an Obligation of three hundred pounds against William Hill, with Condition, that if Thomas Harris and Elizabeth his Wife,One bound to levy a Fine before such a day who shall do the first act. before the end of Easter Term next, shall levy a Fine before the Iustices of the Common Pleas, by due course of Law, to the use of the Plaintiff; that then, &c. the Defendant pleaded, that before the end of the said Easter Term, the Plaintiff did not purchase any Writ of Covenant, pro fine leuand. wherupon a Fine might be levied according to the course of Law. The Plaintiff replyed, that the fifteenth of April, the said Thomas for money enfeoffed another of parcel of the Land that was to be conveyed by the Fine: And that the said Thomas and Elizabeth his Wife have not any Estate or Interest in the said parcell so conveyed, wherof they may levy a Fine: And upon this Replication the Defendant demur­red.

1 And upon argument at Bar by Serjeant Harvey for the Plaintiff, and Serjeant Henden for the Defendant; the first question was, If the Bar be good, Intant que le Defendent est oblige. That Thomas Harris and Elizabeth his Wife shall levy a Fine, he ought to procure that to be done at his perill, semble al 4 H. 7. & 3 H. 6. Condition that John S. a stranger shall take Alice D. to his Wife, before Mich. If I. S. refuse, the Obligation is forfeited: And therfore it was urged that he ought to procure a Writ of Covenant at his perill. But the Lord Hobart held that the Plaintiff ought to procure the Writ of Covenant, to have made himself capable of the Fine: And he put this case, if I. S. be ob­liged that I. D. shall enfeoff I.N. the Obligee, such a day I. N. ought to be upon the Land, or ought to make a Letter of Attorney to receive the Livery, or otherwise the Obligation is not forfeited: And when a Co­venant is to levy a Fine, he which is to do the first act, &c. vide Palmers case, Coke lib: 5. fol: 127. & 4 E. 3. 39. 18 E. 3. 27. 11 H. 4: 18. 21 E: 4. 2.

2 The second question was, whether this Obligation be ferfeited, be­ing that the said Thomas Harris had made a Bargain and Sale of part of the Land to another before, so that he was disabled at the time to levy a Fine: And we all agreed, that the Condition was impossible, and is all one as if he had disabled himself afterwards; as in Maynes case, Coke lib: 5. 21. where the Covenant was to make a new Lease upon surrender of the former Lease, there if he which ought to make the new Lease, disables himself to make a new Lease, and to accept of the Surrender, by granting the Reversion for years, he ought not to do the first act, viz. Surrender, but the Covenant is broken: And in this case it is all one, as if one (who had granted the Reversion for years or for life) Covenant that he upon Surrender will make a new Lease, he had broken this Covenant, being disabled at the time: And it was said and agreed by the Court, that the Fine to be levied ought to be an effectuall Fine, which might operate to convey the Land according to the Covenant.

Burnell and Brook.One case was vouched in this case to be between Burnell and Brook, where the Condition was, that he should acknowledge a Iudgment, [Page 49] and a good Bar, that the Plaintiff had not purchased an Originall Writ, for he ought to make himself capable of Iudgment acknow­ledged to him, vide 34 E. 1. Fitz: Debt 164. A Condition that if he pre­sent the Obligee to a Benefice, that then, &c. Though the Obliges taken Wife, by which he is disabled to take it, put he ought to pre­sent and offer him to the Ordinary to refuse him.

Vide 28 E: 4. 6. where parcell of the Land was recovered, yet Debt lies for entry, Damages recovered in a Court of ancient Demeasn, which case was then vouched, but it is not much to the purpose: And afterwards we all agreed that the Plaintiff should have Iudgment.

Hord versus Cordery. A President was shewn which was thus.

IN the County of Wiltes, Richard Hord Clerk, Vicar of Chute, Case. brought an action upon the Case against William Cordery, and Brid­get his Wife, and Dorothy Cox; Conspiracy. for one malicious confederacy of charging the Plaintiff with the felonious Raye of the said Dorothy Cox, and procured him to be examined before Sir Anthony Hunger­ford a Iustice of Peace, and therupon was bound in a Recognizance to appear at the next generall Sessions of the Peace at Devises, and from thence was bound over to the Assises: And there the Defendants An: 15 Jac: before Sir Thomas Flemming and Tanfield Iustices of As­sise preferred one Bill of Indictment of their malice aforesaid, and by the procurement of the said William and B. the said Dorothy shewed to the grand Inquest, whether it were true or false.

And the Iury perceiving the malice and the falsi [...]y, did not find it to be true, and gave their Verdict by Ignorance. Vpon Not guilty pleaded by William and Bridget, and non informatus by Dorothy, the Iury found for the Plaintiff, and after a Writ of Error, An: 15 Jac: and 20 marks costs for the delay, Ego vidi recordum, & est bien & pleivement aver, que il ne ravish le feme, & est ent. Hil. 10 Jac. Rot. 92. 1. 1.

Trin. 20 Jac. Hawkins versus Cutts.

HAwkins brought an action upon the case against Cutts, Case. and decla­red that he was of good Fame, &c. and for the space of eight years last past, had used the Art and Mystery of a Baker Pandopatoritae, and had gained his living by buying and selling; the Defendant said of him, He is a Bankrupt Knave: And not guilty,Words▪ it was found for the Plaintiff: And in Arrest of Iudgment it was moved, that it is not shewn that he was a common Baker, neither had used the Trade, but used the Art and Mystery of a Baker: And there is (as Serjeant Ho­bart said) as much skill and art used by Bakers of Bread in private mens houses, as by common Bakers; And every [...]ooman which bake in private (if she be a good Housewife) use the art and mystery of a Baker.

[Page 50]And if a man had said generally, that he had gained his living by buying and selling, and not shewn what Trade he had used, it is not good: Therfore the Trade ought to be alledged, and so sufficiently, that the Court may judge him such a person, as is within the Statute of Bankrupts. Also Winch said, that it is not alledged, that he gain­ed his living by buying and selling any thing which concerne his Trade: And I was of the same opinion, and relyed upon the case of 11 H. 4. 45. An nation upon the case against an Inn. keeper, and shew­ed that he was lodged there, and his Horse was stoln: And the Defen­dant pleaded a plea, that he delivered to him the Key of the Stable, &c. And by the Court the Writ shall abate, because he did not shew that he was a common Hostler: And therfore Iudgment arrested.

And the Court agreed that if the Count were good, the words would maintain an action; for a Baker is a Trade mentioned in the Statute 5 Eliz. but it ought to be a Common Baker.

Trin. 20 Jac. Whiteguift versus Eldersham.

Second deli­verance. JOhn Whiteguift brought a Writ of second deliverance against Ri­chard Eldersham, for taking of his Cattle at Clanding, in quodam loco vocat. Corles Paud. The Defendant makes Conuzance as Bay­liff to Sir Francis Barrington, because that the place, &c. was parcell of the Mannor of Curles, and that John Curles was seised before the time,Avowry. &c. therof, and held it of Sir Francis Berrington as of his Man­nor of Clanding by Knights servies, viz. by Homage, Fealty, & survi­tium scuti, and by the Rent of ten pounds, payable yearly at two Feasts, of which Rent the said Sir Francis was seised by the hands of the said John Whiteguift, as by the hands of his very Tenant, in his Demsn as of sea, and Avow put Homage infect. wherupon the Plaintiff de­mur.

And shew for cause, that the Defendant had not shewn any Title to have Homage of the said John, and that the Cognizance is repugnant and no sufficient Seisin alledged of the Services, and that the shewing of the Seisin is not formall, vide Bevils case, Coke lib: 4. fol: 6. Seisin of Rent is the Seisin of the Services, and he might have traversed the Tenure, and the other party ought to shew whether he had done Ho­mage before, vide 44 E. 3. 41. when an Avowry is upon the Baron for the Homage of the Feme, it is sufficient Avowry without shewing that he had Issue by her; and yet if he had not Issue, he could not a­vow upon the Baron, but that ought to come on the other party, vide 5 E. 2. Fitz. Avowry 209. A man avow for Homage, and alledge Seisin of Esenage without Homage, and good.

And after upon motion this Term, Iudgment was entred for the Defendant.

Trin. 20 Jac. Sherwells Case.

MAry Sherwell brought a Writ of Dower,Dower. and in But therto it was pleaded, that the Father of the Husband of the Demandant was seised of one house and sixty acres of Land in Fire, and made a Fe­offment to the use of himself for life, and after to the use of the Hus­band and the said Mary for their lives,Joynture which bars Dower. for the Ioynture of the said Mary, the remainder to their Heirs: And that afterward the Father died in the life of the Husband, and aftre the Husband died: And ad­judged that this is no Ioynture to bar Dower; according to the opinion in Varnons Case, because that the Estate of the Wife at the Com­mencement, take not effect immediatly after the death of the Husband, Et quod abinitio non valet, tractu temporis non convalefeit: And if a Feoffment to the use of the Baron for life, the remainder to I. S. for years, remainder to the Feme for her Ioynture, this is not a Ioynture he bar Dower.

Trin. 20 Jac. Francis Curle versus James Cookes.

AN action of the case was brought, and Count,Case, that the King by his Letters Patents, An: 12 Jac. reciting the Statute of 31 H. 8. for erecting of the Court of Wards, and the Officers therof; and that two persons shall be named by the King and his Successors, who shall be Auditors of the Land of the Kings Wards: And reciting the Statute of 33 H. 8. for the making of the Master of the Wards and Liveries, and his power, had made him the Plaintiff one of his Auditors, and granted to him the Fees due and accustomed to be had, and 40. Marks fee, and gave power to him as one of his Auditors, according to the said Statute, and to exercise it with the Fees in as ample a manner as others had used: And averred that at the time of the Patent made, and at all times after the erection of the said Court, the Auditors had engrossed all the Accounts of the Feodaries, and that they had taken therfore two shillings, and shewed that he was sworn and exercised that Office, and shewed the Oath specially, and that he had by vertue therof ingrossed divers Accounts of the Feddaries, and had taken ther­fore two shillings; and that the Defendant having conference with the Plaintiff concerning his Office, and his bone gesture therin, said to him, You have received money for ingrosement of Feodaries (innuendo the said Fees for ingrosement of the Accounts of the Receivers, Feoda­ries, and other Officers aforesaid) which I will prove is Cousenage: And then and there spoke further, You are a Couse [...]er (innuendo the said Francis decepisse Dominum Regem 8. subditor in executione officii praedicti) and you live by Cousenage, & deceptionem dicti Domini Re­gis & subditorum shorum in executione officii ful. Non Culp. verdict. pro Plaintiff. and Damages thirty three pounds.

[Page 52]It was moved in Arrest of Iudgment by Attho, that first it is al­ledged, that the Fee of two shillings is lawfull, and that he said, You have received monies for ingrossement of Feodaries, which I will prove is Cousenage (innuendo the Fees aforesaid which are lawfull) and then by his own shewing it is not Cousenage.

2. It is insensible, Ingrossements of Feodaries, for they cannot be ingrossed, but their Accounts.

3. That Ad tunc & ibidem, for the other words are for other words spoken at another time of the same day, and they are not actionable, for they do not relate to his Office. Also the words will not maintain a­ction, for the word Cousenage is generall, and of an ambiguous inter­pretation, and therfore no action lies for that: And he resembled it to Sir Edmund Stanhops case; He hath but one Mannor, and hath got it by swearing and forswearing:Midlemore and Warlow. And to the Case of Midlemore and War­low, An. 30 Eliz. Thou art a cousening Knave, and hast cousened me of forty pounds; And adjudged that no action lay, vide Coke lib: 10 fol: 130. in Osbornes Case, Thou art an arrant Knave, a Cousener, and a Traytor; Action lies only for the word Traytor, and yet all being spoken at one time aggravate, and Damages shall be intended to be gi­ven only for these words which are actionable, vide ut supra fol: 131. if the words be alledged as spoken at severall times, and as severall cau­ses of actions, there if the Damages be entire, the Plaintiff shall not have Iudgment, if any of the words do not bear action.

Stanley and Buddens case.And other cases were cited that Cousenage is not actionable: And Mich: 40 Eliz: Stanley and Buddens, or Boswels case; there an Attor­ney brought an action of the case for these words. Thou art a cousening Knave, and gettest thy living by Extortion, and didst cousen one Pi­geon in a Bill of Costs of ten pounds: Adjudged that the last words were actionable.

This case was adjudged for the Plaintiff, but I was absent in Chance­ry, and heard not their reasons, for it was doubtfull.

Hil. 17 Jac. Empson versus Bathurst.

Debt. FRancis Empson brought an action of Debt upon an Obligation, a­gainst George Bathurst; the Defendant pleaded the Statute of 23 H. 6. That an Obligation taken Colore officii, of any one in their Cu­stody,Obligation voided by the Statute 23 H. 8. with any other Condition then for appearance at the day mentio­ned in the Processe shall be void: And shewed that an Extent issued out of the Chancery, to extend the Land of Robert Leigh upon a Statute Staple of twelve thousand pounds, in which he was obliged to the Plaintiff: And that Anthony Thirrold was Sheriff, and Charles Empson was under Sheriff, and shewn an Extent of the Land return­ed, and before any Liberate it was agreed that the Defendant should pay to the under Sheriff two and thirty pounds ten shillings, and that he should be bound to the Plaintiff his Brother, for the security therof, to the use of the said Charles, and therupon he entred into the said Ob­ligation, which by the said Statute is void, the Plaintiff replyed and [Page 53] shewed, that by the execution of the Extent he agreed to pay him the said two and thirty pounds ten shilling, and pleaded the Statute 29 E­liz. cap. 4. wherupon the Defendant demurred.

And it was adjudged against the Plaintiff,Extortion. for this Obligation is extortion, and Colore officii, and void by the Commen Law.

Extortion is when any one Colore officii extorquet feodum non debitum, plus quam debitum, aut ante quam debitum, vide Dive and Maringhams case, an Obligation made by Extortion is against Com­mon Law, for it is as Robbery, vide Coke lib: 10. fol: 100. Dyer 144. And in this case the opinion of the Court was, that no Fee is due to the Sheriff by the Statute of 29 Eliz. cap; 4. because the Fee is not due untill execution, Copulative extent, and delivered in execution, if it were a Statute-Merchant, in which is a Liberate included, then the Fee is due.

Also it was agreed that by the Statute the Sheriff ought to have six pence in the pound, where the summ exceed a hundred pounds for all, and not twelve pence in the pound.

Mich. 20 Jac. Bullen versus Gervis.

RObert Bullen brought an action of Debt for 12 l. upon an Obliga­tion, against William Gervis Administrator of Owen Godfrey; Debt. It is no plea for the Admi­nistrator to say, the Inte­state died out­lawed. Young and Pi­got. The Defendant pleaded that the Intestate was outlawed at the Suit of Francis Murrell, after Iudgment, and pleaded it specially, and be­ing so Outlawed died, and that Outlawry is in full force, Iudgment si Action, wherupon the Plaintiff demurred.

8 E. 4. 6. There by Littleton, between Young and Pigot, in an action of Debt against Executors, it was holden a good plea to say, that their Testator was Outlawed, for they are charged to the King for the Goods. Genny said, that the plea amount only to this, that they have not any Goods, and so answer argumentative. And 21 E. 3. 5. By Bri­an, in a Writ of Debt brought against Executors, it is a good plea to say, that their Testator was Outlawed sans luy intitle.

36 H. 6. 27. By Prisot in Debt against one as Executor of Jane, the Defendant said, that the said Jane was his Wife, and demand Iudg­ment si action, and it seems this is no Plea, because that a Feme Covert may have many things which the Husband shall not have, as Choses in action, and she may make Executors if the Baron agree. And Prisot said, Sir, It seems to me that it is no good plea for an Exe­cutor to say, that his Testator died Outlawed Cansa qua supra. Quare cur hona materia.

Vpon the reading of the Record, it seems that it is no plea, for it is only by Implication, and that may be given in evidence. Also the Executor or Administrator may have divers things which are not for­feitable to the King; as if the Testator had Mortgaged his Land upon Condition, that if the Mortgagee pay not at such a day to him, his Exe­cutors, or his Heirs, a hundred pounds, that then it shall be lawfull for him, or his Heirs to re-enter, and after and before the day the Testa­tor is outlawed, and makes his Executors and dies, and at the day the Mortgagee pay the money to the Executors, that is Assets, and not forfeited is the King.

[Page 54]So if Tenant for life of a Rent be outlawed, and the Rent arrear, and makes his Executors and die, this arrearage is due to the Execu­tor, and is Assets, and not forfeited, for the Rent was a Free-hold, for which during his life no action of Debt lay, and these arrearages reco­verable by the Executors are Assets.

Also if this should be a good plea, which is only by Implication, he might therby prevent the Plaintiff of his recovery.

Also though choses in action are by information in the Exchequer re­coverable, yet if the Executor bring a Scire facias upon the Iudgment, he shall recover, and shall be accountable to the King therfore; and the Debtors of the Intestate (though he was outlawed) may pay the debts to him, and his release is a good discharge to them.

Also it was agreed, that an Executor or an Administrator might bring a Writ for the reversall of the Outlawry, and the Outlawry is not a Bar to him:Woolley versus Bradwell. Trin. 37 Eliz. Rot. 2954. And one case was vouched by Attho, which was ad­judged upon the like plea in this Court, Trin: 37 Eliz: Rot: 2954. Wool­ley against Bradwell and his Wife, Executors of Sir Thomas Man­nord, and the matter depended a year and was argued, and adjudged that it was no plea, for it is but by argument, and so being, Serjeant Hobart said, this Argument ought to be infallible, also this is the matter and not the form, for in this case the Demurrer was generall: and the Book of 3 H: 6. 14. & 32. there it is well argued, and the better opinion, that it is only by argument: And a man outlawed may make an Executor, and this Executor may have a Writ of Error to reverse the Outlawry: And therupon and upon the view of the Record in Woolleys case, the Court gave Iudgment that it is no plea.

Lightfoot versus Brightman.

Covenant. LIghtfoot brought on action of Covenant against Brightman, and count, that the Defendant being possessed of an Advowson in grosse for tearm of years, covenanted that he would not grant nor assign his Interest to any,Grant of an Advowson pleaded with­out alledging to be by deed, good if the is­sue be taken upon collate­rall matter. without offer therof first to the Plaintiff, and that he should have it fifty pounds better cheap then any other, and alledge breach of the Covenant, that he granted the said Advowson and his tearm therin over, without offering it to the Plaintiff, and Issue joyn­ed upon non concessit, and found by Verdict quod concessit, and dama­ges fifty pounds. And it was moved in Arrest of Iudgment, that it is not alledged, that the Grant upon which the Issue is joyned, was by Deed, and then no breach assigned: I at the first was of opinion that the Iudgment should stay; but after upon advisement, I concurred with Serjeant Hobart, and Iustice Winch, that it was averred by the Verdict, for now it being a perfect Grant, it shall be intended that up­on the Evidence a Deed was shewn; as upon Issue joyned upon Grant of a Reversion, where it is not alledged that it was by Deed, or that the Tenant atturned, yet if it be found it shall be good: And so in Avowry for a Rent-charge, where the Grant therof is pleaded not by Deed, and Issue is joyned fur concessit, and found quod concessit, that is good by the Verdict, like to Nichols case, Coke lib: 5. Debt upon a Bill, payment pleaded, and Issue found for the Plaintiff, he had Iudg­ment: But it seems, if it had been found for the Defendant, the Plain­tiff [Page 55] shall have Iudgment, for the Bar confesse the action, as in the 9 H. 6. Debt upon an Obligation, the Defendant plead that he delivered it to the Plaintiff to be his Deed, when certain Conditions were per­formed: And he pleaded that the Conditions were not performed, if it be found accordingly, yet the Plaintiff shall have Iudgment, Coke lib: 2. fol: 61. Wiscots case, a Lease by Baron and Feme, which ought to be by Deed pleaded generally, and found the Plaintiff had Iudg­ment, vide Smith and St [...]pl [...]tons case.

Mich. 20 Jac. Chittle versus Sammon.

CHittle against Sammon in Replevin,Replevin. Avowry for Rent granted to the Father in see, without alledging that it was arreare after the death of the Father. Counsance for Rent as Bay­liff to Sir John Reves, upon a Grant out of the Land, wherof the place in which, &c. was parcell, upon a Grant made to the Father of Sir John, and for Rent arrear, &c. Issue was joyned upon this point, if the place was parcell of the Land out of which the Rent was gran­ted, and found by Verdict that it was: And now moved by Attho in Arrest of Iudgment, that it is not alledged that this Rent was arrear after the death of the Father, as it ought to be, and therfore it may be intended that this Rent was arrear in the life of the Father: But the Court agreed and resolved that it was good after Verdict, for now it is pleaded that it was arrear, and not paid to him, Ergo it was due to him; and though it might have been more fully pleaded, yet after Verdict it is sufficient.

Fletcher versus Harcot.

AN action upon the case was brought by Fletcher of Otely against Harcot, and count,Case. that wheras the Defendant had arrested one Batersby by a Commission of rebellion,Assumpsit in consideration that the plain­tiff (being an Hostler) would keep a Priso­ner to save him harmlesse. issuing out of the Court of the Lord President and Councell of the North, as he affirmed: And wheras the Plaintiff keeps a common Inne in Otely, and had kept it by the space of five years, and had entertained men. The Defendant requested the Plaintiff to keep the said Batersby in his Inne at Otely, by the space of one night, as a Prisoner, and that he would keep and save him harmlesse, and shew that he had kept him for that night as a Prisoner: And Batersby afterward brought an action of false Impri­sonment against him for the said keeping of him in his house, and that he had expended and laid out in defence thereof ten pounds: And that he had required him to save him harmlesse, and he refused. Non assumpsit found for the Plaintiff, and moved by Harvey in Ar­rest of Iudgment, that it is no sufficient consideration, because it doth not appear that he had lawfully arrested the said Batersby, for it is not affirmatively alledged, but (as he said.) Also it doth not appear that the recovery in the action of false Imprisonment was for the same cause; but in that he had misinformed, for it was in the Record Pro custodia praedicta, & ex causa praedicta. And for the other matter the Lord [Page 56] Hobart seemed at first to doubt, if it did not appear that it was a law­full Arrest, then there was no consideration: But because the diversi­ty, when the consideration appears to be for doing of a thing which is unlawfull; As if one at the request of I. S. promise to better I. D. and he promise to save him harmlesse, this is a void Consideration; But if one request I. S. to enter into the Mannor of Dale, and drive out Cat­tle, and that he will save him harmlesse if he doth so, and after Tres­passe be brought against him, and recovery had, he shall have his action: So if a Sheriff pretending to have a Writ, where he hath none, arrest one, and request an Inne-keeper to entertain him in his house, or hire one to conduct the Prisoner to the Gaol; and promise to keep him without Damage; if an Action be brought, and recovery had therupon, the party shall have an action of the case against the Sheriff upon this promise, for he which doth a thing which may be lawfull, and the ille­gallity therof appear not to him, he which imploys the party and as­sume to save him harmlesse, shall be charged: And Iudgment was entred for the Plaintiff▪

Mich. 20 Jac. Parkers Case.

Debt. Hue and Cry.AN action of Debt was brought against the Hundred of [...] in the County of Stafford, by William Parker, upon the Statute of Winchester, cap: 1, & 2. reciting the Statute, That forasmuch as Rob­beries do daily encrease. Murthers, and burning of houses, and Theft be more often used then they have been heretofore,Amendment of a false A­breviation. and Felons cannot be attainted by the Oathes of the Iurors, which had rather suffer stran­gers to be robbed, and to passe without pain, then to indite the Offen­ders, of whom great part be flock of the same Country, &c. And upon Nil debet pleaded, it was found for the Plaintiff: And it was moved by Serjeant Bawtry, that the Writ had recited the Statute otherwise then it was, for the Writ saies, Indicari pro indictari, and it ought to be written by this Abbreviation Indicāuri: And the word Indictari is a word by it self, and he resembled it to Freemans case, Coke lib: 5. fol: 45. Fecit vastum vendicōnem & destrictionem, for destructionem, and not amendable. Also Coke lib: 4. S. Cromwells case upon the Statute of Rich: 2. de scandalis magnatum, the word Messoignes is said Messuages, and not amendable. Harris answered that the Cursitor had a Note drawn which was well; and it was only his mis-priston.

Secondly, that there is no such Passive Verb as Indicari, and so be­ing insensible, shall be amended: And for that vouched 11 H: 6. 2. & 14. adjudged upon the Statute of forging of false Deeds, Immaginavit, were it should be Immaginatus est, and amended.

3. This Abbreviation is sufficient: Also he said that it is only the preamble of the Statute, wherupon the action is not founded, but upon the body of the Act. Sir George Wrothies case in Ejectment, the word Demisit was amended and made Divisit.

Brickhead against the Bishop of Yorke, and Cooke for the Ticaridge of Leeds, the Writ was Vacariam, and for that the Cursitor was exa­mined, [Page 57] and his Instruction being Vicariam, it was amended there, An: 14 Jac.

1. The Lord Hobart inclined strongly, that it should be amended by the instruction which was delivered to the Cursitor, but as to that Winch and I differed, because that this matter of Instruction is not a thing which ought to be informed by the party, as all matters of fact are: As whether it be a Vicaridge or a Church, or in debt for twenty pounds in the Instruction, and he make it thirty pounds, that shall be amen­ded: But in this case it is matter of skill, and no difference between this case and Freemans case: And in debt if he had Instruction in the Debet and Detinet, and makes the Writ in the Detinet only, that shall not be amended.

2. The Lord Hobart inclined, that this recitall is but in the Pre­amble, and may be omitted; to which we disagreed, he inclined that the Abbreviation was sufficient to supply all the word.

This Case being long debated, the Court Ex assensu ordered that the Defendants should give 80l. to the Plaintiff.

Mich. 10 Jac. Rot. 641. Poole versus Reynold.

IOhn Poole brought a Prohibition against Richard Reynold Farmer of the Moyety of the Rectory of Colleton, Prohibition. Prescription to have Deer out of a Park in discharge of all Tithes, and after the Park is dispar­ked. with the Chappell of Shute annexed to the said Rectory: And the Surmise was, that of time wherof memory, within the Parish of Colleton, there was a Rectory appropri­ate, and the Cappell of Shute annexed therto, Et una Vicaria perpetua ejusdem Ecclesiae de Colleton dotat.

And wheras the said John Poole for six years last past, had occupied one house, a hundred acres of Land, twenty acres of Meadow, forty a­cres of Pasture, called Shute Park, in Shute aforesaid, within the Parish of Colleton; which said Tenements were anciently a Park, and now dis-parked, which Park De temps d'out memory, &c. untill the dis-parking therof was used and filled with Deer, and severed from other Land, and was dis-parked. An. 10 Eliz. and converted into the said house, a hundred acres, &c. And that all the Occupyers of the said Park called Shute Park, de temps d'out memory, &c. untill the dis-parking, had paid to the Vicar there, his Farmer or Deputy one Buck of the Summer season, within that time upon request, and one Doe of the Winter season, within that time, &c. in discharge of all Tithes of the said Park, untill the dis-parking; and after the dis-par­king in discharge of all Tithes of the said Tenements, which they had accepted for all the time aforesaid, untill the dis-parking and after, or otherwise agreed with the Vicar for them: And traversed this Pre­scription, and found for the Plaintiff.

[Page 58]And now in Arrest of Iudgment it was moved by Henden, that this Prescription extends to the Land quatenus it is a Park, and that be­ing destroyed, the Prescription is gone, for a Tenurs to cover a Wall or Thatch an house, if the party destroy or pull it down, the Tenure is extinct, 32 E 14: Avowry: And it shall be presumed that this was by grant when it was a Park, which is collected by the thing which is to be paid; and if it be to be paid or delivered out of the Park, then it is determined, vide Lutirels case, Coke lib: 4 Also this Prescription is a­gainst the benefit of the Church, and shall not be enlarged; And the Wood which is sold out of the Park shall not be discharged, 14 Jac. in Conyers case in this Court;Conyers case. Prescription that the person had two a­cres of Meadow given in discharge of all Tithes of Hay ground, viz. of all the Meadow in the Parish, it any arrable Land be converted in­to Meadow, it extends not to discharge that, vide Lutirels case, Coke lib: 4 fol: 86. That an Alteration in prejudice of the party determine the Prescription; but vide the principall case there adjudged, that building of new Mills in the same place, and converting of Fulling Mills into Corn Mills, alter not the Prescription, vide Terringhams case, lib: 4. He which hath Common purchased part of the Land, all is extinct, for it is his own act: And he cited a case which was in this Court argued at Bar, and afterwards at Bench, between Cooper and Andrewes, Mich: 10 Jac: Rot: 1023. for the Park of Cowhurst, vide 32 E: 1 Fitz: avowry 240.5 E: 2. Fitz: annuity 44.20 E: 4.14.14 E: 4.4.

But this case was adjudged for the Plaintiff, Quod stet prohibitio, and that which is by the name of Park is for the Land, and is annexed to the Land by the name of Park, if the Prescription had been to pay a Buck or a Doe out of the Park, then it would alter the case: But it is generall, and had been paid also after the Park dis-parked, viz. the tenth of Eliz. And the case of Cowper and Andrewes, was the third shoulder of every Deer which is killled in the Park, and two shillings in money, and that case was never adjudged.

Hil. 10 Jac. Meredith versus Bonill.

Case. HUgh Meredith a Iustice of Peace in the County of Monmouth, brought an action upon the case against Bonill, Words. for these words, I will have him hanged for robbing on the high way, and for taking from a man five pounds and an Horse. After Verdict for the Plaintiff, it was moved in Arrest of Iudgment, that the words were not actiona­ble, for they are not Affirmative or Positive, but a supposition only; as if he had said,Nowels case. I will indite him for such a matter: it was vouched to be adjudged 51 Eliz. in Nowels case, that to say of an Attorna [...]. That he was Cooped for forging Writs maintain an action: And 14 Eliz. He is infected of the Robbery, and he smelleth of the Robbary, adjudged actionable.

In balls case, There is never a Purse cut in Northamptonshire but Ball hath a part of it, will not bear action: But the Court would not declare their opinion, Quia sub spe Concordiae.

Griggs Case.

GRigg which is the Examiner at Chester, preferred there this Bill in the Chancery, vocat. the Exchequer,Prohibition [...]i Chester. against one which inha­bite within the same County, and another which inhabite in London. being executors to one, to whom the said Grigg was indebted by Obli­gation (which Obligation was put in suit in the Court of Common Pleas, and there proceed to processe before the Bill exhibited) and the Bill concern equity of an Agreement, that the Testator had pro­mised, that one Robert Grigg should assign a lease of Tithes to the Plaintiff in consideration of his entry into the said Obligation; and if he could not procure it, that then the Obligation should not be preju­diciall to him; and he which was distributing in Chester answered therto: And an Order was made by Sir Thomas Ireland, Vice-Cham­berlain, that Processe should be awarded to him which dwelleth in London; And an Inquisition was granted to stay the proceedings at Common Law: And afterwards upon the motion of Serjeant Hit­char [...], Sir Thomas Ireland was in Court, and shew all that he could to maintain the Iurisdiction, viz. That the Contract was made in the County Palatine, and that the priviledge pursued the Plaintiff; and ipse qui est reus, non potest eligere, &c. Yet it was resembled to ancient Demesn and Guildable: And by Lord Hobart, he which inhabit at Dove [...] by this way, may be inforced to come and answer to a Bill in Chester, which would be infinite trouble, and the matter is transitory: And it was resolved, that the Court of Chester had not power in this case, but it belonged to the Chancery of England.

And a Prohibition was granted.

Hil. 20 Jac.

ONe case was in the Kings Bench, viz. Trespasse. Baron and Feme brought in action of Trespasse Quare clausum fregit, Trespasse by Baron and Feme, for breaking the Close of the Baron, & for the Battery of the Wife. and for Battery of the Feme, the Defendant pleaded a License to enter into the Close made by the Baron; and not guilty as to the Battery. And the Court was moved in Arrest of Iudgment, because the Husband and Writ could not ioyn for the weaking of the Close of the Baron, the Writ shall abate for all. But the Lord chief Iustice and Iustice Dodderidge were of opinion, that the Plaintiff should have Iudgment: And it seems that the Law is clear accordingly, vide 9 E: 4. 51. Trespasse by the Husband and Wife for the Battery of them both the Iury found so much for the Battery of the Husband; and so much for the Battery of the Wife, and so Damages assessed severally, because the Wife could not soon with the Husband in an action for the Battery of the Husband, for that part the Writ shall abate; and for the Battery of the Wife they shall recover for, for that they ought or joyn in an action, vide 46 E: 3. 3. Baron and Feme brought Trespasse for the Battery and Imprisonment of the Wife, and the Writ was ad damnum ipso­rum, and yet good, vide 9 H: 7. in the case of Rescous, and 22 E: 4. 4. there is a good diversity when the Writ is falsified by the shewing of [Page 60] the party himself; and when it is found by Verdict. And Iustice Haughton and Iustice Chamberlain were of opinion, that the Writ should abate; for it is apparent, that as to the Trespasse Quare clausum fregit, the Wife had no cause of action: But this case being debated at Serjeants Inn in Chancery Lane, at the Table, the Lord chief Ba­ron was of opinion that Plaintiff should have Iudgment for that part, and he held the Writ good in part, and Reddenda singula singulie, Me [...]e­nest issint, as it seems no more then in the case of 9 E: 4. for there the Writ shall avate for part. And if an action of forgery of Deeds be brought against two, for forging and publishing, and found that one for­ged and the other published, the Plaintiff shall have Iudgment.

Howell versus Auger.

Trespasse.IN an action of Trespasse brought by Noy Howell against Auger, for breaking of a house and five acres of Land in Fresham, upon Non Culp. pleaded, the Iury gave a speciall Verdict.

Devise of a Fee after a Fee.Robert Howell seised of the Land in Question, and of other Land, by his Will in writing devised this Land to Dorothy his Wife for life, and devised this Land to Thomas Howell his younger Son, to him and his Heirs in Fee, under the Condition which shall be afterwards decla­red: And the other Land was also devised to Dorothy for life, and to the Plaintiff and his Heirs in Fee, under the Condition hereafter limited: If Dorothy died before the Legacies paid, then he will that they shall be paid by Noy and Thomas his Sons, portion-like out of the Houses and Lands given them: And if either of my Sons dye before they enter, or before the Legacies paid, or before either of them enter; Then I will that the longer liver shall enjoy both parts to him and his Heirs: And if both dye before they enter, then his Executors or one of them to pay the Legacies, and to take the profits till they be paid, and a year after, and made Dorothy his Wife, and Christopher Roys his Executors, and died. Dorothy entred, the Plaintiff Noy by his Deed, In: 33 Eliz. in the life of Dorothy released to Thomas all his right, &c. with War­ranty: Release of Lands devised before they be vested. Thomas by his Will devised the Land, for which the action is brought, to Agnes his Wife, and died in the life of Dorothy, and be­fore Legacies paid Dorothy died, and Agnes entred and took to Hus­band Henry Ayleyard, who leased to the Defendant, upon whom Noy entred, and the Defendant re-entred: And Si super totam Materiam, &c.

And this Case was well argued at Bar in two Terms; and the first question was, If this Devise of a Fes after a Limitation be good or not, much was said for it, and they relyed upon a case which was ad­judged in the Kings Bench, between Pell and Brown, of such a limita­ble Fee:Pell and Brown. And many Cases put that this operate as a future Devise Executory, as well as one may by his Will Devise, that if his Son and Heir dye before he marry, or before that he come to the age of font and twenty years, that then I. S. shall have the Land, and it shall be good, vide Dyer 33. Coke lib: 10.46. Lampets case.

[Page 61]But Tuesday the eleventh of February, the Lord Hobart by our di­rection (because that we were streightned of time, and Howell was so importunate for Iustice, that we could not argue) delivered the opini­on of the Court, that Iudgment should be given for the Defendant: And he declared, that as to the point of a Fee-simple, which he called the mounting of one Fee-simple upon another, we now declared no o­pinion; But we all without difficulty resolved, that this release of Noy, be it a Condition or not, had discharged it: And as to him, it is an Interest used by the Devise, but not executed untill it happen: And therfore in Lampers case, there the Release discharged it, for there he had no Title executed, but vested and commenced, and so may have Noy Howell the Plaintiff in this case; and it is not like to an Heir in the life of the Father, for be is a stranger, and he hath no Title at all, and yet his Release with Warranty bars him; and here this Release is accompanied with Warranty, of which nothing was spoken: Also as to Noy it is a Condition according to the words of the Will, and therfore sans question that Noy had barred himself.

The Vacation after Hil. 20 Jac.

MEmorand. That on Munday the seventeenth of February, at Ser­jeants Inn, upon the assembly of all the Iustices, to take consi­deration upon the Statute of 35 Eliz. cap. 1. for the Abjuration of Secta­ries; the Atturney-generall, and Serjeant Crew being there,Resolutions upon the Sta­tute of Eliz. cap. 1. concer­ning Sectaries: after the perusall of the Statute, and the Continuances therof, it was first up­on debate considered, whether this Statute was in force, or disconti­nued, and upon the perusall of the Proviso in the Statute of Subsidy, and upon reasoning the matter, these Points were resolved.

1. If a Parliament be assembled, and divers Orders made,What shall be said a Session of Parliament and a Writ of Error brought, and the Record delivered to the higher hou­se, and divers Bills agreed, but no Bills signed: That this is but a Convention, and no Parliament, or Session, as it was An. 12 Jac. in which (as it was affirmed by them which had seen the Roll) it is en­tred that it is not any Session or Parliament, because that no Bill was signed, vide. 33 H: 6 Brook, Parliament 86. every Session in which the King signes Bills is a Parliament.

2. It was agreed, that if divers Statutes be continued untill the next Parliament, or next Session; and there is a Parliament or a Ses­sion, and nothing done therin as to continuance, all the said Statutes are discontinued, & Beriatim, Jones, Chamberlain, Hutton, Denham, Haughton, Dodderidge, Winch and Bromley declared their opinions, that this Statute is discontinued: And that the Statute of Subsidy is a Parliament, and that every Parliament is a Session, but not e con­verso, for one Parliament may have divers Sessions, as the Parlia­ment 1 Jac: had four, and ended An: 7 Jac. vide 33 H: 6. Br. Parliament 86. And that this Proviso is not to any other purpose, but to continue their proceedings in the same Estate, as if this Act had not been made; and if this Proviso had not been, then this Statute had been disconti­nued [Page 62] by this act of Subsidy, but when this ends and is determined, then is the Session ended, then it is a Session scilicet a Parliament, which ought to be pleaded, at the Parliament holden, &c. and all the Commissions of Subsidy are accordingly; and the Proviso call it a Session: Then this being done, the Lord chief Baron did not deliver any opinion, for he said, that he had not considered the Statute; and afterward it was desired that the Lords would deliver their opinions, and therupon the Lord Hobart declared his opinion accordingly; That it seemed to him that it was a Session, and that it was not safe to meddle with such Law, and that he would never refuse to declare his opinion with his Brethren: After the Lord chiefe Iustice Ley made a long discourse, concerning the purpose and intent of Parlia­ment, scilicet. That it was not their purpose to destroy so good Lawes, and therfore it was not any such Session as was within the intent of the preceding Parliament, which was, that these should de­termine when it is a Parliament or Session, in which good Lawes are made.

And Doderidge said, that it was fit to see the Commission, and that that which hath been said, was not to bind any one, but every one spoke what then he was advised of, and peradventure might change upon better consideration. And afterwards upon Tuesday on an As­sembly of the two chief Iustices, the chief Baron, Iustice Haughton, Baron Denham, Hutton, Chamberlain, and Jones, the Attorney-gene­rall brought the Commission de 12 El. June 1. and that had these words, Pro eo quod nullus Regalis Assensus, nec responsio per nos praestat. fuit, nullum Parliamentum, nec aliqua Sessio Parliamenti lata. aut tent. fu­it, They have power to adjourn this Parliament thus begun: And the Commission to dissolve this Parliament, 38. Feb. An. 19 Jac. had the same words, saving that he recite, that he had given his Royall assent to an act of Subsidy, by which was intended that it should not be a Ses­sion: And upon view of the Commission, the Lord chief Iustice mo­ved that the King was mistaken in this, that he had given power to dissolve this Parliament, which had not any Session, and if it be a Ses­sion, then he had no power to dissolve it, and then it is, as it were, a recesse; and a Parliament cannot be discontinued, or dissolved but by matter of Record, and that by the King alone; and if the Parliament yet continue, then this Statute also continue during the Parliament by the Proviso: but that would not serve, for first, it is against the in­tent of the King, and against his Proclamation: And also the case is truly put in the Commission, as to the matter in fact, and he is not mis-informed, but mistaken in the Law, and then the Commission for the dissolving is good, semblable to the Lord Shandoi's Case, and other Cases, vide in Cholmleys case: But because that all the Iud­ges were not at this Conference, therfore it was deferred untill the next Term; and in the interim, the Grand Secretary and the Attor­ney-generall were to inform the King that the Statute is obscure, and had not been put in ure, and that we could not agree.

Mich. 20 Jac. Rot. 2805. Bawtry versus Skarlet.

JOhn Bawtry Clerk,Case. brought an action upon the case against Benja­men Skarlet, one of the Attorneys of this Court by Bill, and count,In considera­tion that the Plaintiff will confesse Judg­ment, the At­torney pro­mise to defer the entry of the Judgment, &c. that wheras one William Carter, Trin. 20 Jac. brought an action of debt against the now Plaintiff, upon an Obligation of a hundred and twenty pounds, to which the now Plaintiff appeared by his Attorney, and re­quired a Declaration, and the now Defendant on the part of the said William Carter his Master gave the said Declaration, and required the now Plaintiff to confesse the action; and pendente Pl. he the now Defendant in consideration that the Plaintiff would give order to his Attorney to confesse the action, and to suffer the said Defendant to have Iudgment in the said Plea, for the said William Carter his Master, as­sumed to the Plaintiff, that no Iudgment should be entred, untill af­ter Crast. Annunciat. And that no execution shall be sued out untill after the end of Michaelmas Term next, and shew the performance therof by him, and the breach of the Defendant: And after Verdict it was mo­ved that it is no sufficient consideration, and that was impossible for him to perform, that Iudgment should not be entred in the Term, in which Iudgment is given, but that is in the discretion of the Court; and afterwards Iudgment was given for the Plaintiff.

Pach. 19 Jac. Rot. 3014. 21 Jac. Jennings versus Pitman.

RIchard Jennings brought an action of Covenant against George Pitman, upon an Indenture of an Apprentiship,Covenant of an Apprenti­ship. by which the Defendant had put himself to be an Apprentice to the Plaintiff in Ips­wich, to the Trade of a Linnen Draper; and there were divers clau­ses in the Indenture, according to the usuall form, and assigne for breach, the wasting of severall summe of money.

The Defendant pleaded the Statute of 5 Eliz. by which it is enacted, That it is not lawfull for any one inhabiting in any City or Towne Corporate, using the Trade of a Merchant over the Sea, Mercer, Pannary, Goldsmith, Iron-monger, Imbroyderer, or Clothier to take any Apprentice to be instructed in any of these Trades, if it be not his Son, or that the Father or Mother of such Apprentice, had at the time of the taking of him, Lands, Tenements, or Hereditaments, of Inhe­ritance or Freehold, of forty shillings per annum, to be certified by three Iustices of Peace, under their hands and Seals where the Land lies, to the Mayor, Bayliffs, or other head Officer of the City or Town Corporate, and to be inrolled, entred, and recorded there, and pleaded the clause of the Statute which makes Obligations and Cove­nants void, which are taken against it. And averred that Ipswich was a Town Corporate at the time of the making of the Statute.

[Page 64]The Plaintiff replyed, that his Father had at that time when he was bound, Lands and Tenements in great Bealing, viz. ten acres, to the Value of forty shillings per annum.

The Defendant by Rejoynder offer to joyn Issue, that his Father had not Lands, &c. wherupon the Plaintiff demurred.

And the question was, If this part of the Statute, To be certified by the Justices, &c. be such an essentiall part therof, that the Covenant be void without it: It was agreed, that it had not been put in use after the Statute; but it seems that it is Essentiall, and it ought to be so, at the time when he is put to be an Apprentice, but it may be enrolled afterwards, for the Statute in another part provides a penalty for the not Inrolling: Like to the Case upon the Statute of 18 Eliz. That they which claim any Estate of them which were Attainted in the Re­bellion, they brought their Conveyances to the Exchequer to be inrol­led within one year, if they bring and deliver these Conveyances, though they be not inrolled, yet they have performed as much as was in them: And if the Certificate be not at the time when the party is put to be an Apprentice, the Statute was to no purpose.

If this Bar be good, then the Replication is a departure, and the Re­joynder also, and the Bar being good, Iudgment shall be given against the Plaintiff, but if the Bar be not good, then for the Plaintiff, for the Count contains matter certain.

But the Court moved, whether this Covenant lay against an In­sant, for although it is by the Statute provided, that he shall be bound to serve as a man of full age, yet that makes not the Covenants good, and it is like to a Custom, which shall be taken strictly.

Trin 20 Jac.

This Case between Jennings and Pitman was moved this Term; And the Lord Hobart was of opinion, that this Statute (being that it appears that he was within age, scil. sixteen years) will not bind him to any Covenants which are not implyed in the Indenture of serving: For the doubt was, whether an Infant was an Apprentice out of Lon­don, though that he put himself to serve: And the only matter which binds him in this Statute, is, that he shall be bound to serve, when he is bound by Indenture, being within age, as well as if he were of full age; and if the Covenant be only a Covenant to serve, no Covenant lies for Imbeziling of Goods: And if the Covenant be to serve him faithfully and diligently, that shall not bind him upon this Covenant. And I was of the same opinion, for it is only made good as to the ser­ving; and there are many Covenants and Clauses besides in this In­denture, which bind him not; As not to play at unlawfull Games, &c. And a Custom, that an Infant at such an age may sell his Land, shall be taken strictly, viz. that he cannot give it, &c. But my Brother Winch was of opinion, that it was a thing incident, and a quasi Consequent, viz. That if he shall be bound to serve, by consequence he shall be bound to serve faithfully and truly. He resembled it to the case of a Fine le­vied by an Infant, and not reversed during his [...]onage, that shall bind him; and by consequence the Indenture which leads the uses of the Fine, and when the Law enables to any thing, that which is incident, and without which the other thing cannot be, is implyed.

Trin. 19 Jac. Rot. 1734. Blemmer Hasset versus Humberstone.

JN an Ejectione firmae brought by Ralph Blemmerhasset against Wil­liam Humberstone for Land in Pucklethorp, Ejectione firmae. upon a Lease made by John B. upon a speciall Verdict found, it was resoved,A Copyhold may be extin­guisht without an actuall sur­render. that when a Co­pyholder bargain and sell his Copyhold to the Lord of a Mannor, which hath the Mannor in Lease for years, that therby the Copyhold Estate is extinguished: And the Lord Hobart said, that if a Copyholder come into Court, and saies, that he is weary of his Copyhold, and request the Lord to take it, that is a Surrender; for between the Lord and the Tenant, a Conveyance shall not need to be according to the Custome, for the Copyholder hath no other use of the Custome, but only to con­vey the Land to another, vide Coke lib. 4. That a Release by him which hath Right to a Copyhold, to one which is admitted Copyholder, extin­guisheth the Right of the Copyhold by Deed: And if a Copyholder re­lease to the Lord, that extinguisheth the Copyhold, although it be contra­ry to the nature of a Release to give a possession. It was agreed here that this Copyhold is not extinct, but the Lord (which is Lessee for years) Dominus pro tempore, may grant it by Copy de novo.

Mich. 21 Jac. Aris versus Higgins.

ARis brought an action upon the case against Higgins for saying these words, He is a Theef, and hath stol [...] my Corn, Case. Words. and made me no sa­tisfaction: And it was found for the Plaintiff, and afterwards moved in Arrest of Iudgment, that these words were not actionable, for Ver­ba ambigua in mitiori sensu sunt accipienda: And therfore Coke. lib: 4. fol: 19. Thou art a Theef, for thou hast stoln Apples out of my Or­chard, or thou hast robbed my Hop gound; the latter words qualifie the generality of the former; Also an Innuendo will not make either the person or the matter certain, Coke lib: 4. fol: 10. Barham did burn my Burn, Innuendo a Barn with Corn, not actionable; and that he had not satisfaction, that proves that it was for Corn growing, for other­wise if it were Felony, the party shall not have satisfaction: But Iu­stice Winch was of opinion, that the action lay, and that the words, He is a Theef, he hath stoln my Corn, are both actionable, and not like to Robbing my Orchard, or stealing my Apples in my Orchard, for Apples in an Orchard are commonly upon the Trees: And as to the words, Thou hast made me no satisfaction, these do not qualifie the former words, Thou art a Theef, and hast stoln a bundle of Fitches, adjudged actionable: Iustice Jones was of the same opinion, for stealing of his Corn shall be intended of Corn severed, for otherwise it is acres of Corn, or Corn growing. Serjeant Hobart was of opinion, that the words shall be intended in mitiori sensu: And we all agreed, that that which qualifies or extenuates words, ought to be full and not ambigu­ous.

Rud versus the Bishop of Lincoln.

Quare Impedit. IN a Quare impedit brought by Edward Rud against the Bishop of Lincoln, Lord keeper, Drury and Stubbin, for the Church of Dack­worth, upon Evidence at Bar, these Points were resolved in the Court.

Quare Impedit.1. When one usurps upon a Lease for years, that this Usurpation gains the Fee, and puts the very Patron out of possession; And though by the Statute of Westminster 2. cap. 5. he in reversion after the Lease may have a Quare Impedit when the Church is void, or may present, and if he present, and his Clerk be admitted and inducted, that then he is remitted, yet untill it be recovered, or his Clerk be in, the Usurper hath the Fee, and against him lies the Writ of Right, and that descends to his Heirs, and his Wife shall be endowed.

2. When the King present one by Laps, not having any Title of Laps, and a recovery is had against him in a Quare Impedit by one which had no Title: If this gain the Patronage; And it is clear the King had no Title to present; and although he which comes in by such Laps, is not Incumbent, nor gains the Patronage, yet he is In­cumbent as to all Ecclesiasticall matters, to have Offerings, Tithes, &c. for it is only as to the rightfull Patronage, no gaining of the Patronage, but he may present, vide Greens case, Coke lib. 6. fol. 29.

3: It was resolved by the Court, that when one recover in a Quare Impedit, although that no Writ be awarded to the Bishop, yet if up­on non presentment the Bishop will admit and institute his Clerk, and he is Inducted: And that is good, as wel as a man may enter without a Writ of Habere factas seisinam after recovery, so may the Patron which hath recovered in a Quare Impedit present, and that being accepted, and Institution and Induction pursuing therupon, it is good.

4. Also, whore the Issue was, whether the Church was void at the time of the presentment of Palu or not; and it appears that the case was, that Thomas Rud after the Church was void by the death of Cle­ment Rud, and after that one Taxall was presented by Laps and Admitted, Instituted, and Inducted where the King had not Title, the said Thomas Rud having good Title to present, made a writing of presentation of the said Paul, and after (be it then exhibited to the Bishop, or no) The said Thomas Rud brought a Quare Impedit, and recovered, and afterwards this Presentation is exhibited to the Bishop, and he admit, institute, and makes a Mandate for Induction, which also is afterward done accordingly. Now the Issue being, whether the Church was void at the time of the Presentation of Pain, the time of this Presen­tation shall now be the time of exhibiting therof after the Judgment: And then as to Rud which had recovered against him, the Church was then void, for whensoever the Bishop had the Presentation exhibited, at that time he ought by the Law to admit, institute, and give a Mandate for Induction, the then Church is void: But after the Judgment the Bi­shop ought to accept that, and admit and institute, Ergo at that time the Church was void, and that is to be the time of the Presentation.

[Page 67]5. When one having good Title to present, and an Incumbent by Usurpation is admitted, instituted, and inducted, and after that the Pa­tron present, and the Bishop refuse, and after the Patron recover, and then he which had this Presentation exhibite it to the Bishop, this is now a good Presentation; and the Patron cannot revoke or give him a new Presentation, but if the Patron before the death of the Incumbent makes Letters of Presentation, that is void, because he had no Title to present.

Hil. 20 Jac. Rot. 1942. Pleydell versus Gosmoore.

EDmond Pleydell brought an action of Trespasse against Richard Gosmoore, Trespasse. Where one may fetter an Estray. and William G. for the taking and chasing of a Colt and fettering of him, with a Continuando as to the fettering.

The Defendant convey the Mannor of Sharston to Francis Earl of Hertford: And that the Earl, and all those whose Estates, &c. had the Estrayes which come within the said Mannor, [...] that the Tithing-men for the time being, seised the Estrayes and proclaimed them at the next Market or Fair, &c. and kept them untill they be claimed or for­feited: And that he was a Tithing-man, and seised this Colt as an Estray; and because this Colt was so feirce, &c. that he could not be kept in Pasture, he fettered him, and kept him in his Pasture within the Mannor, and that for the space of two weeks, and the Plain­tiff having notice claimed him, and had him delivered, &c. The Plain­tiff demurred generally.

Attho said, that he had not avorred that he continued feirce, &c. but at the time of taking was so: To this it was answered, That the Count chargeth not the Defendant absolutely with all the time, but Diversis diebus & vicibus: And also he justifie for two weeks, which is the same Trespasse: Then upon the matter the question is, if he which hath Estrayes or Waifes, if he seise an Estray qui est ferox, whether he may fetter such Estray.

It was agreed by the Court, that when an Estray comes within a Mannor and walk there, this is a Trespasse, and the party in whose Land the Estray is Damage-feasant, may chase him out of his ground.

Also it was agreed, that untill the Lord, or his Bayliff, or Tithing-man seise the Estray, that shall not be said an Estray; but when the Lord seise, than he hath the Commencement of a property therby, and he is chargable against all others for the Trespasse which this Estray doth; and if this Estray within the year estray out of the Mannor, the Lord may chase back the Estray, untill he be seised by another Lord which hath Estrays: But if he be seised by another Lord, then the first hath lost all his possibility of gaining the property, and the other Lord ought to proclaim it de novo.

It was moved, that if a Lord of a Mannor which hath Estrayes, and hath seised an Estray, suffer that Estray by negligent keeping to stray away, and never can be found again, the Owner may have an action upon the case of Trover and Conversion against the Lord, Quare vide [Page 68] 44 E: 14. there the Lord seised an Asse for an Estray, he to whom the property did belong came and challenged the Estray, the Lord may de­tain him untill he tender sufficient recompence for the Pasture, vide purc. 20 H 7. 1. by Vavisor, and 39 E: 3. 3. That the Owner cannot take an Estray untill he tender recompence; likewise the Lord after seisin of the Estray, if he took him not Damage-seasant, may have Re­plevin, and he ought to make him amends.

The Lord cannot work the Estray, but may keep him in his Sta­ble: And if the Sheriff upon a Fieri facias fetter the Colt, and after the Defendant redeem him for money, he shall not have trespasse, vide 6 E: 3. 8. it is not alledged that the fettering was to any damage of the Estray, vide 22 Ass. 56.

Entred Pasch. 18 Jac. Rot. 650. Treherne versus Cleybrooke.

Debt. IOhn Treherne brought an action of Debt against Cleybrooke, and count of a Lease made by John Treherne Grand-father to the Plain­tiff, of Lands in S. Olives in Surrey, and intituled himself by the Will of the Grand-father, by which he devised the Lands to the Plaintiff in tail,Devise. the remainder over to Leonard. Vpon Nil debet pleaded, the Iu­ry found specially, scilicet, the Devise of the Reversion in tail, the re­mainder over to A. in tail, the remainder of one Moyety of the Land to one Daughter in tail, and the other Moyety to another, with Pro­viso, that for the raising of a Stock for John Treherne the Grand-child, when he come to the age of one and twenty years, or if he dies, for the raising of a Stock for Leonard in like manner, he willed that Edward Griffin and Anne his Wife shall take the profits, and shall receive all the rent of the Land devised to John Treherne, to their own use, untill he come to the age of one and twenty years, upon Condition, and so as the said Edward Griffin and Anne shall within three months after the death of the Testator become bound to his Overseers in an Obliga­tion, with such penalty as the said Overseers shall think fit to pay to the said John, or if he dye without Issue to the said Leonard, within three months after he come of age, such a summ, the Condition to be drawn and devised by his Overseers: And if Edward Griffin and his Wife refuse, then the Overseers should receive the Rent and Profits to their proper use: (But the Condition appoint not to whom the Over­seers shall be bound.) And made Edward Griffing and William Iremon­ger his Executors, and I. and others Supervisors, and died; and that within fourteen daies after the death of the Testator, the Will was read to the said Overseers: And that they did not devise or draw (with­in the time appointed) any Obligation, nor tendred any within that time, and that notice therof was given to the Defendant, and that the Rent was demanded, and the Reversion claimed by the Plaintiff, sed utrum, &c.

Vpon the Argument of Serjeant Harris which argued for the Plain­tiff, and vouched 21 H. 6. 6. That when one made Executors, and also Coadjutors, the Coadjutors are not Executors, and that it is a Condi­tion precedent, vide 14 H: 8. 22. Wheelers case, 46 E: 3. 5. Truels case, [Page 69] Coke lib: 5. 127. Palmers case, 4 E: 3. 39. 11 H: 4. 18. And because that in this case the said Edward Griffin and his Wife are to have benefit, they ought to require them to nominate the summ: But because it ap­pears to the Court that this Action is founded upon a Contract in Law, therfore it ought to be brought in Surrey; as it was agreed in Ungle and Glovers case, An: 36 Eliz: vide Coke lib: 3. fol: 23. Nota, that the Iudgment is speciall for this cause, and no costs upon the Statute of 23 H: 8. for the Defendant, for the Statute saies, that upon a Contract made by the Plaintiff, the Defendant shall have costs, and yet upon this Statute if the Executor be non-suited, or Verdict given against him, he shall not pay costs,Where costs shall not be a­gainst Execu­tors. by common experience alwaies after the Statute; and yet he shall have costs if he recover. And in this case the Plaintiff shall have costs if he recover, and yet it seems upon this Iudgment the Defendant shall not have costs against him, and especi­ally because that they are expresse words in the Statute, that the De­fendant shall have costs after Non-suit, or lawfull tryall against the Plaintiff, and here is neither Non-suit nor lawfull tryall, vide Statute 4 Jac: cap. 3. seems to be full in all cases where the Plaintiff shall have his costs upon Non-suit, or when the Verdict passe against him, the Defendant shall have costs, yet it hath been taken that it shall be intended in actions of Debt upon the Contract of the Plaintiff him­self, for Executors neither upon Verdict nor upon Non-suit shall pay any costs, because that their actions are brought upon Debts or Con­tracts, not made between them and the Defendants, vide the Statute of Glocester, cap: 1. that where a man recover damages, there also he shall have costs.

Hickson versus Hickson.

HIckson Demandant in Dower against Hickson; They are at issue, the Tenant offer to be essoined upon the Venire facias, and for want of the Adjornment therof by the Demandant,Essoin shall not be allow­ed in Dower. the Tenant had procured a Non-suit, and yet the Demandant proceeds with the Is­sue. And at the Nisi prius, the Tenant relying upon the Non-suit, it ap­peared not by whom the Petit Cape is awarded.

And now upon motion by Serjeant Henden, who relyed upon the Non-suit, and that the Essoin was allowable by the Statute of West­minster 2. post exitum habeat unicam Essoniam; but it was ruled, and the Prothonatories all said, that it had been the constant use, that no Essoins are allowed in Dower, which is festinum remedium, vide Stat. 12 E: 2. cap: 1. hath tolled the Essoin of the Service of the King in ma­ny cases, and given to the Demandant in many cases power ad cal­lumpniand. Essoniam: And the words of the Statute are, Non jacet in breve de dote, quia videtur deceptio & prorogatio juris, vide Dyer 324. There after the Issue joyned, Essoin at the day of the Venire facias, though no Venire facas be sued out, but only awarded upon the Roll.

Mich. 21 Jac. Linleys Case.

An Informati­on against an under Sheriff, for taking of 30 s for ma­king of a War­rant upon a Capias ad satis­faciendum.AN Information was exhibited against Linley under Sheriff, to Sir Gny Palmes Sheriff of York, vpon the Statute 32 H: 6, and it was shewn, that he being under Sheriff, a Capias ad satisfaciendum was delivered to him, to Arrest one Francis Lancaster upon a Iudg­ment for a hundred and three pounds: The Defendant Colore officii took of the Plaintiff thirty shillings for making of a Warrant upon this Writ, against the form of the Statute, wherby he hath forfeited forty pounds.

Vpon not guilty pleaded, and Verdict against the Defendant, it was alledged in arrest of Iudgment, that the making of a Warrant upon a Capias ad satisfaciendum, which is for Execution, is not within the Statute, because the Statute speaks first, of Fees to be taken upon the Arrest of the party, when he is bailed, viz. twenty pence to the Sheriff, and four pence to the Baily, then appoints that the Sheriff lets to Bail every one that is taken upon Bill or Plaint, besides them which are taken for execution, Outlawry, &c. and then comes the clause, That nothing shall be taken for making of any Precept, or Warrant, but four pence; and provision for the Obligation, Condi­tion, and Fee, and that all Obligations taken by any Sheriff Colore officii, that these shall be void, and that for every offence committed a­gainst the Statute, he shall forfeit forty pounds.

The Lord Hobart inclined, that this making of the Warrant upon the Capias ad satisfaciendum, and the taking of thirty shillings is with­in this Statute; and he resembled it to Dive and Maninghams case in Plowden, where an Obligation taken of one in Execution is void by this Statute: vide, that the clause in this Statute for the Obligation is absolute, without any restraint, but that all obligations taken by colour of his Office, with any other Conditions are made void.

This taking of thirty shillings for making of a Warrant upon a Ca­pias ad satisfaciendum is extortion at the Common Law, for which he may be indited, but whether it be within this Statute or no is doubt­full.

Another Exception was taken to this Information; That it doth not appear by this, that this Writ of Capias was directed to the She­riff of York, or to any other Sheriff: And then admitting this to be a Capias ad satisfaciendum directed to the Sheriff of Lincoln, and it is de­livered by an ignorant hand to the Sheriff of York, to make a Precept therupon, and he makes a Precept, and takes thirty shillings, this is not within the Statute; also Colore officii will not serve, for it is generall, and it ought to be shewn that it was a Capias, and to whom it was directed: And although that all Processe should be generally di­rected to the Sheriff, yet some may be to the Coroners, or some (by the mis-prision of the Clerks) may be omitted; as Jacobus Dei gratia &c. tibi precipimus, and say not, Vice-Comiti Eboracensi salutem. And an Information ought to be certain to all common intents, and it is like to an Indictment. And in an action upon the case against an At­torney, because that he Corruptive and in deceit of the Plaintiff, and [Page 71] in his name had acknowledged satisfaction to his damage, and saies not, wheras Revera non fuit satisfactus, that is not good.

And the Court was of opinion for this cause, that the Plaintiff should not have his Iudgment.

Bickner versus Wright.

AN action upon the case was brought by Richard Bickner against John Wright, Case. Prescription. for the making of a Cony-borough in damage of his Common; The Plaintiff prescribe to have Common omni tempore anni, and saies not Quolibet anno: And after Verdict adjudged good.

Trin. 22 Jac. Goldenham versus Some.

GGoldenham brought a Writ of Dower against John Some, Dower. Judgment in Dower upon Voucher. who vouched the Heir of the Husband, who entred into the Warran­ty, and said that he had no Assets: The Demandant had Iudgment for her Dower (because nothing is said to the contrary) against the Tenant, with a Cesset executio, untill the Warranty be determined: And the Tenant which vouched, when the tryall was at Assises made default, but it was said that it should be the default of the Vouchee, for he was dead before the Assises: And now it was moved that the De­mandant might have execution. And by Henden it was said, that the Voucher is not determined, for he might vouch the Heir of the Vou­chee: But it seemed that the Voucher was determined, and that he shall have the benefit of his Warranty (by Scire facias) out of the Iudgment; but the Court doubted if the Plaintiff shall have Iudg­ment against the Vouchee conditionally (if he had Assets, if not, a­gainst the Tenant) or absolutely, vide 3 H: 6. 17. Dyer 202. there it is conditionall, vide Dyer 256. there the Iudgment is against the Tenant upon Vouchee of the Heir in Ward to the King, and that presently, with a Cesset executio, vide 46 E: 3. 25. If the Vouchee be Counter-pleaded, the Demandant shall have Iudgment presently, vide 48 E: 3. 5. Br: Voucher 38. the Iudgment shall be against the Heir conditionally, which is vouched in Dower, vide 2 H: 4. 8. there upon the Voucher of the Heir which makes default upon the Summons, & sequatur suo pe­riculo, the Iudgment is against the Heir conditionally, if not, against the Tenant, and so Iudgment against one not party to the Suit, and which never appeared: And in this case the Iudgment against the Tenant, with a Cesset executio may be good, because that it doth not appear by any of their Pleas, but that the Demandant is confessed to have her Dower, none of them say, that he is ready to render her Dower (as the Heir ought when he enter into the Warranty.)

This Term Serjeant Finch moved the case, and prayed Iudgment, for he said, the ancient Books were many for Iudgment conditionally; but some to the contrary, viz. when the Heir is vouched within the same County, and is within age, there Iudgment presently against [Page 72] the Tenant, with a Cesset executio: And when the Heir enter into the Warranty, and is taken to render the Dower, there is Iudgment against the Heir, and that the Tenant shall hold in peace: But he said that Mich: Ashburnham a­gainst Skinner. 38, & 39 Eliz. Rot. 1208. Mary Ashburnham brought Dow­er against Skinner, who vouched the Heir of the Husband in the same County, who presently entred en le garranty, and said, that he had no Assets, there the Iudgment was given presently against the Tenant, with a Cesset executio: And after the Issue was tryed, and found that the Heir had not Assets, and the Wife had Execution, but it was said, that Error was brought therupon, yet the Feme continued the Posses­sion.

Henden said, that the Tenant otherwise shall lose the benefit of his Warranty, vide 13 H: 4. Judgment 241.

The Court adjudged this case for the Demandant, upon view of the said President of 38, & 39 Eliz. And as this case is, the Demandant up­on necessity ought to have Execution, because that the Tenant which ought to have the benefit of the Warranty made default: And if it was so that the Vouchee was dead, the Tenant shall not have any other Voucher, for the Dower ought not to suffer delay: And likewise when Iudgment is given against the Tenant, with a Cesset executio, all is one, as a conditionall Iudgment against the Tenant, for if As­sets be found, then Quia compertum est, &c. with Iudgment against the Heir, and that the Tenant shall hold in peace.

It was objected, that Iudgment ought to be conditionally at first, and not to give one Iudgment against the Tenant, and afterwards if As­sets be found, another Iudgment against the Heir; but that is no in­convenience. Some say, that when such Iudgment is given against the Tenant, with a Cesset executio, there if Assets be found, the De­mandant shall not have execution against the Heir, but against the Te­nant, and he shall have ad valentiam. Quaere.

Potter versus Browne.

Case. Words. NIcholas Potter brought an action upon the case against Browne for these words spoken of the Plaintiff, He is as arrant a Theef as a­ny is in England, and he broke up the Plummers Chest with other mens Tools, which stood in my Lord of Suffolks house, and took money out of it. The Defendant pleaded Not guilty, and Verdict for the Plain­tiff: And upon the motion of Henden to Arrest, and Richardson to have Iudgment; The Court resolved that the Plaintiff should not have Iudgment. The first reason is, because that there is not any af­firmative directly, that he is a Theef, but as arrant a Theef as any is in England, And avers not that there is any Theef in England: And the Law will not presume any thing that is evill, Iniquum in lege non presumitur. And as Lacies case was, He is as great a Theef as any is in Warwick Goal, He ought to aver that there was a Theef there at the time of the speaking of the words: And it is the same reason in this case.

Then the latter words are ambiguous, and admit of a double inter­pretation, and the better shall be taken.

Mich. 22 Jac. Methell versus Peck.

MEthell brought an action upon the Case against Peck, and count,Case. that the Defendant in consideration that the Plaintiff had paid to one Playford forty pounds, to the use of the Defendant,Where the re­quest of a col­laterall thing shall be alled­ged. and by his appointment he assured upon request to deliver an Obligation, in which he and another should be obliged to the Plaintiff in a hundred pounds. And that the Defendant Licet saepius postea requisitus, did not deliver the said Obligation; upon Non assumpsit pleaded, Verdict for the Plaintiff: And it was moved in Arrest of Iudgment by Hit­charn, that the Plaintiff had not alledged any sufficient request, by shewing such a day, and such a place, which is issuable: And being collaterall matter, the request is part of the substance of the action; But where it is upon Debt or Contract, and not severed from the duty, then a Licet saepius requisitus is sufficient.

But the Court were of opinion that the Plaintiff shall have Iudg­ment; and yet they agreed the diversity, when a Request shall be al­ledged as part of the thing to be performed, and when it is but im­plyed in the Debt: For when it is collaterall, there it ought to be alledged, and for the time it is sufficient, viz. Postea, but the place of the Request is omitted: And if Issue had been tendred therupon, it might be supplyed afterwards where it shall be tryed, where the a­ction was brought; And Non assumpsit allowes the request; as if the Defendant had pleaded concord and satisfaction, the Request is not to be proved in Evidence, vide 10 H: 7. 16.

But it is said, that this Judgment was reversed in the Kings Bench, because that the Request be­ing upon Collaterall matter, which was the cause of the Action, it is materiall.

Mich. 22 Jac.

Ejectione firmae.AN Ejectione firmae brought, and counted upon a Lease at Hayle­sam, of Tenements there: The Defendant pleads, that Hayle­sam, ubi tenementa praedicta jacent, is within the Cinque-Ports, Ubi breve Domini Regis non currit, and plead to the Iurisdiction. The Plaintiff reply,Town shall be intended al the Town. that the Tenements are in the County of Lancaster, absque hoc, that the Town of Haylesam is within the Cinque-Ports, wherupon the Defendant demur, and adjudged no cause of demurrer. For Haylesam is all Haylesam, and the Court will not intend any Fra­ctions in the Town, viz. that part shall be in the Cinque-Ports, and part without (as it was affirmed the truth was) but that ought to come upon the shewing of the Defendant an his Bar, vide 50 E: 3. 5. Sir Wil­liam Ellinghams case.

Termino Pasch. Hitcham versus Brook.

SIR Robert Hitcham Serjeant at Law, and to the King,Case. brought an action upon the case against one Brook, a Iustice of the Peace, and which had been Sheriff of Suffolk; and count, that he for divers years last past, had been one of the Kings Serjeants, and had demeaned himself well and loy­ally in the discharge of his duty, and had gained good opini­on, and had acquired by his practice a good Estate for the maintenance of him and his Family; The Defendant said,Words. I doubt not but to prove that the Plaintiff hath spoken Treason (Innuendo Treason against the King:) Verdict was found for the Plaintiff; And it was moved in Ar­rest of Iudgment, that these words are not actionable.

First, because no time is alledged when the Plaintiff is supposed to speak Treason, and it might be when he was an Infant, or that it is pardoned: To which it was answered by the Court; First, That these words ought to be alledged as they were spoken, and that was In­definite. 2. The time is not materiall, unlesse the Defendant make it materiall by his plea, viz. When he was in giving Evidence for the King against a Traytor, and then he repeated such words; or when that the Plaintiff was frantick, and of that he intended, and so justifie, there the time may come in question.

2. The second Exception was, that there is not any expresse affirma­tive: to that it was answered by the Court, that it was more then an Affirmative, for he had (as he said) proof therof, and not a report or hearsay: And if one say, it is reported, &c. that will not bear action, unlesse he justifie the report, by charging it upon him which was the Author of the report.

3. Also it was objected, that the speaking of treason was not treason; But it was holden clearly, that it is as well as Preaching, or writing, Et Index animi Sermo.

4. Also it is not said what treason, and it may he high or petit trea­son: [Page 76] To which it was answered, that when he speaks generally of treason, it shall be intended according to the common intendment, which is treason against the King, vide Sir William Mulgraves case, Coke lib: 4. And two Cases were vouched to be adjudged in the Point,Johnson and Atewod. one between Johnson and Atewood, 8 Eliz. Thou hast spoken Treason, and I will hang thee for it, adjudged actionable. The other was be­tween Pewall and Vardoffe, Pewall and Vardoffe. 9 Jac. Thou hast spoken treason, and I will prove it, adjudged actionable.

And it was resolved by all that the Plaintiff should have his Iudgment.

Flight versus Gresh.

Case. THomas Flight brought an action upon the case against Gresh; and count, that wheras the Plaintiff and one Baleman were bound in an Obligation to the Defendant,In considerati­on that the Obligor pay the summ, the Obligee as­sume to deli­ver the Bill. for the payment of such a summ at such a day: The Defendant in consideration that the Plaintiff would pay to him the laid summ at the day, assumed to deliver the Obligati­on to the Plaintiff, and shewed that he had paid the money at the day, and the Defendant did not deliver it, but after sued it and recovered, and had the Plaintiff in prison in execution by the space of a year.

The Defendant protestando, that he did not assume, for plea saith, that the Plaintiff did not pay it; and therupon Issue, and found for the Plaintiff. And it was moved by Serjeant Gwin, that this action lies not for want of consideration, for the Plaintiff did nothing but that which he was obliged to do, and no profit to the Defendant, for if he had not paid the summ, the Obligation had been forfeited: And he re­sembled it to the case of 9 E: 4. 19. An accord (in Trespasse) that the Defendant should deliver to the Plaintiff his Evidences, and permit him to enter into his Land, is no good Bar: So in an Arbitrement, 12 H: 7. that the one permit the other which was disseised to enter, and that he should give to him his Charters and Evidences, is not good: And he vouched one to be resolved in the Kings Bench,Greenwood and Becket. between Greenwood and Becket, where one had forfeited three Bills, in con­sideration that the Plaintiff will pay the three severall summs three daies after, he would deliver them to the Plaintiff: And the Court was of opinion that it was no sufficient consideration.

Richardson to the contrary, and said that the payment without Suit, was for the advantage of the Obligee, to be sure of his money, and may be more available to him at this time, then the forfeiture afterwards: And he vouched a Case to be adjudged, that where one had bought, Cat­tle in a Market, and had paid for them, and the party which had bouoght them (because that he which bought them had them in possession, and would not deliver them) in consideration that the party would deliver them, promised to pay him a certain summ, an action lies therupon.

And the opinion of the Court was, that the action lay, for (for any thing that appears) the monies were paid before the time that in Law they might be paid, viz. before the setting of the Sun: And it is with­out question, if a man to whom money is to be paid, come to the party the same day, and pray him to pay it in the morning, and that in consi­derations [Page 77] therof, promise to pay him five pounds, to abate five pounds, or to deliver an Obligation, this is good: And a voluntary promise to do that which is in good conscience good and just for him to do, shall bind him, and the rather because he had benefit, viz. to be sure of the performance: And the forfeiture is but means to obtain the principall summ: And if one had Iudgment, and in consideration that he will not sue execution, the other promise to pay, it is good: And because that in this case it appears, that by the non-performance of this pro­mise the Plaintiff had prejudice, and the Iury had found solvit, the Plaintiff had Iudgment.

Hil. 21 Jac. Rot. 3150. Trevors versus Michelborne.

EDmond Trevors brought a Scire facias against Michelborne Sheriff of Surrey, Sci. fac. Sci. fac. a­gainst the Sheriff for ta­king of insuffi­cient Pledges. for the returning of insufficient Pledges in a Replevin brought by one Ray against the now Plaintiff, in which the said Ri­chard Ray made default, wherupon a Retorn. habend. was awarded, an Averia elongata returned, and then a Withernam, and then a Ni­chil, &c. And for this taking of insufficient Pledges, this Scire facias is brought, upon Westminster 2. cap. 2. And the Defendant demurred,Somerford and Beamont. vide the lake President, Hil: 11 Jac. Rot. 3563. between Somerford and Beamont.

Hil. 1 Car. Uvedall versus Tindall. Enter Hil. 21 Jac. Rot 705.

SIr Richard Uvedall brought an action of Trespasse against William Tindall Clark, Vicar of Alton, Trespasse. What things are smal tithes and what great. and John Loveland for taking bona & Cattella, and count for the taking of two Carectac. glaci, Anglice Wood: And upon Not guilty pleaded, the Iury gave this speciall Verdict; Viz. For the Moyety of a Lead of Wood, Si videbitur Cu­riae quod decimae glasi ne sunt minutae decimae, then the Defendants not guilty, but si sunt minutae decimae, then they are guilty.

And this case was argued at Bar by Serjeant Bridgeman, adn Ser­jeant Henden: And the Court unement agreed, that for ought that here appears, this Verdict being found without any circumstance, that this Wood shall be taken to be Minuta decimae.

It was agreed by Henden, that if it had been found Wood growing in a Garden, then minutae decimae.

[Page 78]And it was agreed by the Court, that it might have been so found, that it should be Majores decimae, and pr [...]diall; as if all the Profits of the Parsonage consist of such Tithes. And so of other things, which in their own nature are minutae, may become majores, if all the profit of the Parish consist therin: As in some Countries, a great part of the Land within the Parish is Hemp, or Lime, or Hops, there they are great Tithes, and so it may be of Wholl and Lambs.

Beddingfields Case. Pasch: 3 Jac. in the Kings Bench, Beddingfeilds case, Farmer to the Dean and Chapter of Norwich, who had the Parsonage Impropriate, and had used to have Tithes of Grain and Hay, and the Vicar had the small Tithes: And a Feild was planted with Saffron, which contain forty acres: And it was adjudged that the Tithes therof belong to the Vicar.

Potmans case.There was a Case in this Court as it was vouched by Henden, 3 Jac. between Potman a Knight, and another: And the question was for Hops in Kent, and adjudged that they were great Tithes; but as for Hops in Orchards or Gardens, these were resolved to belong to the Vi­car as Minutae decimae.

There was a Case in this Court for tithe of Weild, which is used for Dying, and that was in Kent, and it was sown with the Corn, and after the Corn is reaped, the next year without any other manurance, the said Land brings forth and produce Weild: And that was a speciall Verdict, whether the Vicar shall have the tithe of it, or the Parson, but one of the parties died before any Iudgment. And if Tobacco he planted here, yet the tithes therof are Minutae decimae: And all these new things, viz. Saffron, Hops, Wood, &c. if it doth not appear by materiall circumstances to the contrary, shall be taken as Minutae de­cimae: And so this case was adjudged for the Defendant.

Hil. 1 Car. Townley versus Steele.

FRancis Townley, and three others, the Executors of William Pea­cock, brought a Writ of Ravishment of Ward against Richard Steele and Anne his Wife, for the Ravishment of the body of Ralph Smith Cosin and Heir of Ralph Smith; In Ravish­ment of Ward brought by Executors, are Non-sui­ted, whether they shall pay costs. and count of the Tenure by Knights-service in Ralph Smith of William Peacock, and that Ralph Smith died, the said Ralph his Cosin and Heir being within age; and that William Peacock the Testator seised of the body, and died possessed therof, and made them his Executors, and they being possessed of the said Ward, the Marriage of whom belong to them, the Defendants Rapuere illum & abduxere: And upon Not guilty pleaded, the Iury was at Bar, and the Plaintiffs after Evidence were Non-suited.

And whether the Defendants shall have costs in this case was the question, upon the Statute of 23 H. 8. cap. 15. or by the Statute of 4 Jac. cap. 3. And it being argued by Davenport and Attho, the Court this Term (the chief Iustice being absent) gave their opinions.

And Iustice Crook argued that they should not have costs, and put many cases, when Executors bring actions, they shall not pay costs, and [Page 79] so is Common Experience (after the Statutes) which is the best In­terpreter of the Law: And if it should be otherwise, Executors would be discouraged to bring actions for the debts of their Testator.

And Iustice Harvy was of the same opinion, but Iustice Yelverton and Hutton to the contrary: And they agreed, that in all actions brought by Executors, upon Contracts, Obligations, or other things made to the Testator, there shall be no costs, for that is not within the Statute, viz. Contracts, or Specialties made to the Plaintiff; or if an action be De bonis asportatis in the life of the Testator, or upon any Tort sup­posed to be done not immediatly to the Plaintiff, there shall be no costs, because that the Statute gives not costs in these cases, 20 Ma­riae, Debt upon a Demise for years, if the Plaintiff shall be Non-sui­ted there shall be costs, for it is upon Contract, though in some sort reall. But in this case, though the Plaintiffs are named Executors, and their Title is derived from their Testator, yet the action is brought upon an immediate Tort done to themselves; and it is within the very words of the Statute: and this Statute which is to prevent Vexati­ous Suits, shall be taken favourably.

If Executors have a Lease for years, and they demise it rendring rent, and for Rent arrear they bring an action, it shall be in the De­bet and Detinet, and they shall pay cost; if they be Non-suited, and yet their Title is as Executors, but it is founded upon their own Contract, so if they bring an action of Trespasse for the taking of Goods which came to their possession, which Goods were in truth tortiously taken by the Testator, and he died possessed therof, and they being Non-sui­ted they shall pay costs: And Executors in actions brought against them shall pay costs, and if they have no Goods of the Testator, it shall be De bonis propriis. And vide, that upon Contracts made by them, or Rent arrear in their time, the action shall be in the Debet and Detinet, vide Coke lib: 5, Hergraves case. But when Debt in brought by Execu­tors, and recovery had, and after a recovery an escape, and Debt upon this escape, this shall be in the Deticet only, according to the first cause of action. And this Ravishment of Ward is an action within the Statute of 23 H: 8. and the Statute of Westminster [...]. gives no Dama­ges, and therfore costs by the Statute of Glocester cap: 1. and the Sta­tute of 4 Jac. inlarge the actions, and not the persons.

Hil. 1 Car. Beverley versus Power.

VPon an Assembly (this Term) of all the Iustices at Serjeants Inne, by vertue of an Order of the Star-chamber made the last Term, at reading the Case was.

Iames Beverley was Plaintiff against Robert Power, Pardon. and Mary Beverley, and others, which Bill was exhibited Hil: 16 Iac. and the Bill was for scandalous matter not examinable in this Court, and for o­ther matter which was examinable, and Witnesses examined and publi­shed: And then the 19. of Febr. 21 Iac. the generall Pardon is made by Parliament, by which all Offences, Contempts, and Misdemeanors, [Page 80] del 20. Decemb. before (except such Offences, contempts, &c, whereof or for which any Suite or Bill within eight years before was exhibited into the Star-chamber, and there remaining to be prosecuted this last day of this present Parliament:) And afterwards, viz. Mich. 1 Caroli, the Cause came to hearing at the Suit of the Defendant, and upon the hearing Power was fined two hundred pounds; and for the abuse and contempt to the Court for exhibiting the scandalous matter, the Plain­tiff was fined five hundred pounds, and for damage to the Defendant five hundred marks. And yet because of the difficulty and diversity of opinion which was between the Lord chief Justice, and the Lord Ho­bart, the now Lord Keeper and the Lords by an Order respited this matter, as to the Fine of the Plaintiff, and gave damages to the Defen­dant, and referred it to the opinion of all the Justices. And they all (una voce) except Iustice Harvey (who insisted upon the dama­ges given to the party, that they should not be pardoned) agreed that the Contempt and Offence for the scandalous Bill exhibited, was par­doned, and not within the Exception; for it cannot be intended, that the Plaintiff exhibited a Bill, upon which he should not be fined, but this exception was of that which was laid to the charge of the Defen­dant, and the Defendant may have his remedy at Common Law, and the Contempt which is accidentall to the Offence is pardoned, and by consequence the Fine.

Pasch. 2 Car. Crane versus Crampton.

Case. CRane brought an action upon the case sur assumpsit against Cramp­ton, and count, that in consideration of moneys paid, the Defen­dant did assume to give to the Plaintiff a Ruff-band at the day of his marriage: And he alledged in facto. that such a day, and at such a place he was married;Notice. and that the Defendant notwithstanding that he was requested such a day, and a year after the said marriage, had not given to the Plaintiff the said Ruff: And upon Non assumpsit it was found for the Plaintiff, and moved in Arrest of Iudgment, that the Plaintiff had not alledged any notice given to the Defendant of his marriage.

And by the opinion of me and my two Brothers Harvey and Yelver­ton. Iudgment was given for the Plaintiff; For the Defendant ought to take notice therof at his perill, unlesse he had provided to de­liver the Ruff after marriage, and after notice therof for if he ought to have notice (no place being agreed upon where it shall be given) then he should be compelled to enquire and to find him, and give notice, and paradventure he could never give him notice. Also it is agreed, if one be obliged to pay to another twenty pounds, within three months after he come from Rome, there shall no notice be given of his return, but the Obligor ought to take notice at his perill: And if it were with a Condition that I. S. (that is not party to the Obligation) shall do such a thing, there shall not be notice: And this case of an Obliga­tion is more strong, for there is a penalty: and if it were to pay ten pounds when a Fair shall be at Dale, there he ought to take notice: [Page 81] And they agreed the case of 8 E: 4. fol. [...] an Obligation to perform an Arbitrement, there no notice is necessary, for it is the act of a third person: And if any notice be requisite, the Request imply it; as it was adjudged in the Kings Bench, between Hodges and Baldwin: Hodges and Baldwins case. But my Brother Crook seemed to be of a contrary opinion, for when the duty arise upon the notice, there notice ought to be. Iudgment pro Querente.

Laicon versus Barnard.

LAicon Plaintiff against Barnard one of the Attorneys of this Court,Case. for Trover and Conversion of a hundred Sheep, the Defendant said, that he brought Debt in the County Court of Lincoln, Recovery in trespass for ta­king of goods, is no ba [...] to an action upon the case sur trover. against one Hacliff, for two hundred and eighty pounds, upon an Obligation by Iu­stices, and recovered, and that these Sheep were delivered to him in Execution, as the Sheep of the said Hacliff: And that afterwards and before this action, the Plaintiff brought an action of Trespasse against the now Defendant for taking of these Sheep, Quare caepit & abduxit. And it was found for the Plaintiff, and Damages to two pence: And averred that they were the same Sheep; and the Plaintiff replyed that the Damages found by the Iury, were only for the taking and cha­sing, and not for the value: And that this Action was for another Tres­passe, wherupon the Defendant demurred, and it was adjudged for the Plaintiff: for, for any thing that appears (which the Defendant hath confessed upon his Demurrer) it is not for the same Trespasse: Also the Damages of two pence cannot be given for the value of the Sheep: Also the Plaintiff when a Trespasse is done to him, may retake his Goods, and yet he shall have an action of Trespasse for the taking of them: And every taking, viz. (abduxit) import a chasing; and no man will say, that by the recovery in Trespasse, when the Plaintiff had his Goods, that therby the Defendant shall have the property: But it is true, that if the Plaintiff recover the value, therby he waves the pro­perty, and by this way the Defendant shall have the property, vide 2 R. 3. 14. 4 H: 7. 5. 6 H: 7. 8. and Iudgment for the Plaintiff. Yelverton at first baesitavit, but afterwards agreed.

Pasch. 2 Car. Wades Case.

AN action upon the case was brought by a Feme,Case. as Administra­trir against the Lady Wade Executrix of Sir William Wade, Non assumpsit was pleaded, the Venire facias was well, but the Hab: Corp. Nisi pr. was entred, the Plaintiff,Where the Nisi prius shall be amended. &c. and the Defendant Executrix of Sir H: Wade, &c. And it was amended by the Court, and there was the difference taken, that when the Nisi prius is so mistaken, that if it should be amended, the Iury should be prejudiced, viz. that it may fal­sifie their Verdict, then it shall not be amended, but in this case, it is but the Writ by which the Iury is warned to appear: And the autho­rity [Page 82] of the Iustice of Nisi prius is not by that, but by the Juras, which was well and as it ought to be.

Also they have their Authority by the Statute of Westm: 2. vide Dyet 106. In Wootons Case, there the Jurat. was well, and omitted in the Nisi prius, Anthony Coke: Also the Issue was between Wooton and Cooke, and Temple, where Temple had confessed the action, vide there, that many omissions of the Record of Nisi prius, are to be amen­ded. Brown was of the contrary opinion to Walsh, Weston and Dyer.

Trin. 2 Car. Farrington versus Arrundell. Entred Hil. 22 Jac. Rot. 4462.

Debt.AN action of Debt was brought by Lionell Farrington, Qui tam pro se quam pro Domino Rege, Debt upon a penall Sta­tute is not gone by the death of the King. &c. against Thomas Arrundell, upon the Statute of 23 Eliz. for not coming to Church; and the Defendant demurred upon the Count: And then King James died, And if this a­ction be abated or not by the death of the King, was the Question.

Vide the Statute of the 1 E. 6. cap. 7. vide Coke lib: 7. fol: 30. And concerning this was diversity of opinion in the Common Bench; for my Brother Yelverton and I were opinion, that the Debt is gone, for it is at the suit of the King, and Iudgment is given for the King: And there shall be an answer to the King. And we relyed upon the cases vouched by the Lord Coke; but Iustice Harvey and Crook to the con­trary: And upon conference with all the Iustices of Serjeants Inne, it was resolved, that this action was at the suit of the party, for he might be Non-suited, vide 25 H: 8. Br. Non-suit, that the Informer may be Non-suited, vide 6 E. 2. Fitz Non-suit 13. when the Iury come again to deliver their Verdict, the King cannot discharge them and be Non-sui­ted, and the King cannot discharge this action. And his Attorney re­ply not as in an Information.

Clotworthy versus Clotworthy. Amendments.

Debt. SImon Clotworthy brought an action of Debt against John C. Cosin and Heir of Bartholmew C. And the Imparlance Roll is, Quod cum praedictus B. cujus consanguineus & heres idem Johannes est, viz. filius Johannis Clotworthy fratris praedicti B. C. And upon the Plea Roll, upon which Iudgment is given, this space was perfected, and Iudgment for the Plaintiff; and now the Defendant brought a Writ of Error, and it was moved to be amended: And if the Imparlance Roll shall be amended, which is the foundation of the subsequent Rolls, is the question: For it is commonly holden, that the Plea Roll shall he amended by the Imparlance, but not e converso.

Hil. 18 Jac. Rot. 67 [...]. Walker versus Worsley. Amendments.

WAlker brought an action of Debt against Worsley, Debt, as Son and Heir of Thomas W. in the Imparlance Roll which was entred, Mich: 18 Jac: Rot: 576. the words which bind the Heir were omitted, viz. Ad quam quidem solutionem obligasset se & Heredes suos, but they were in the Plea Roll: And after Iudgment that was assigned for Er­ror in the Kings Bench, and it was amended in the Common Bench by the Court, vide there, that it was by the fault and mis-prision of the Clerk, who had the Obligation, and so amendable by the Statute of 8 H: 6. cap: 15. 1.

Hil. 9 Jac. Rot. 516. Govard versus Dennet.

GOvard against Dennet, and Iudgment, and the name of the At­torney, viz. Henry was omitted in the Imparlance Roll, and it was in the Plea Roll Henry, and after Error brought it was amended.

Mich. 16 Jac. Rot. 581. Arrowsmith's Case.

THe Imparlance Roll, Trin: 16 Jac: Rot: 1727. Debt for three hun­dred pounds against Arrowsmith, for part sur emisset, and the other part sur in simul computasset: And in the Imparlance Roll, both par­cells did not amount to three hundred pounds, but wanted six pounds therof, and after Error brought it was amended,

Pasch. 12 Jac. Rot. 420. Godhow versus Bennet.

REplevin by Godhow against Bennet, divers spaces in the Impar­lance Roll were supplyed in the Plea Roll after Verdict.

Hil. 12 Jac. Rot. 420. Parker versus Parker.

THe Imparlance Roll was, Mich: 12 Jac: Rot: 547. Parker against Parker in Trover and Conversion, the Imparlance Roll wanted the day and year of the possession and conversion, but the Issue Roll was (after the Verdict and motion in Arrest of Iudgment) amended.

Mich. 2 Car. Crocker versus Kelsey

JOhn Canterson and Agnes his Wife, Tenants in speciall tail, had Issue a Son,Lease made by Feme in spe­ciall tail. viz. John, and John the Father died, John the Son le­vied a Fine with Proclamations to the use of himself in Fee, Agnes leased to John Herring and Margaret his Wife (Lessors to the Plain­tiff) for one and twenty years, rendring Rent, &c. by vertue wherof they entred: Agnes died, John the Son entred, and afterward the said John Herring and Margaret his Wife entred; And the said John the Son made his Will in writing, and by that devised the Land to Kelsey the Defendant, and another in Fee, and died. John Herring and Mar­garet leased to Crocker the Plaintiff, who entred, and being ousted by Kelsey, brought Ejectione firmae: And this speciall Verdict being found, Iudgment was given for the Plaintiff; and now affirmed upon Error brought in the Exchequer Chamber.

Mich. 2 Car. Franklin versus Bradell.

FRanklin a Woman servant, brought an action upon the case upon a promise against John Bradell: Consideration in an Assump­sit, ex post facto. And count, that wheras she had ser­ved the Defendant and his Wife, and done to them loyall service, the Defendant after the death of his Wife, in consideration of the service which the Plaintiff had done to the Defendant and his Wife, promi­sed to pay her thirteen shillings four pence upon request, and alledged request and non-payment; And after Verdict for the Plaintiff, it was moved in Arrest of Iudgment, upon the Book of 13 Eliz. Dyer, that this is no sufficient consideration, because that it is not alledged, that the Plaintiff at the request of the Defendant had served him: Also it was not sufficient, because that it was done after the service performed. And it was answered, that it was a good consideration, and that the ser­vice was to the benefit of the Defendant: And therfore in considera­tion that the Plaintiff had married the Daughter of the Defendant, he promise to pay twenty pounds, it is a good consideration; and so in [Page 85] consideration that you have been my surely to such a man for such a Debt, I promise to save you harmlesse. And in consideration that the Plaintiff was Baile for the Defendant, he promised to give him a Horse, this is good: And in consideration that I.S. being a Carpenter had well built my house, I promise to give him five pounds. And Iudg­ment for the Plaintiff.

Hil. 2 Car. Hearne versus Allen. Entred 22 Jac: Rot: 1875.

RIchard Hearne brought an Ejectione firmae against John Allen, Ejectione firmae for two acres of Land in Langham, upon a Lease made by Anne Keene, which was the Wife of Edward Keene; and upon Not guilty pleaded a speciall Verdict was found.

Richard Keene was seised of an house in Chippin-norton,Devise. and of two acres of Land there in Fee, and of two acres of Meadow in Langham in Fee used with the said Messuage, which were holden in Socage: And by his Will in writing, dated the 20. May, 30 Eliz. he devised the said house Cuni omnibus & singulis ad inde pertinentibus, vel aliquo modo spe­ctantibus, to Tho. K. and his Heirs for ever: And for want of Heirs of him the said Thomas, then to one Anne K. the Daughter of the De­visor, and her Heirs for ever: And for default, &c. then to Iohn K. his Cosin, and his Heirs for ever; And by the same Will devised his Goods and all his Lands to Eliz. his Wife, during her Widow-hood, and died. Elizabeth his Wife entred. Thomas the Son entred upon the Wife, and disseised her, and having enfeoffed one Edward K. in Fee died, and Tho. K. also died without Issue: Edward K. by his Will de­vised the Land to Anne his Wife, the Lessor of the Plaintiff for life, and died, Anne entred and made a Lease to the Plaintiff, Et si super totam materiam, &c. And it seems that the Defendant Allen claim under the Title of Anne K. the Daughter, but that was not found, nor no other Title for the Defendant; and therfore of necessity Iudgment ought to be given for the Plaintiff. And this case was well argued by Crawley for the Plaintiff: And Henden for the Defendant. And three Points were argued.

1. If the two acres in Langham passed by the words Cum pertinen­tiis; and it seemed to the Court that they did not passe, without saying Cum terris eidem Messuagio spectantibus vel pertinentibus: And that is agreed in Hill and Granges case, by Conveyance, and 23 H. 8. 6. and it is all one in a Will. Also in this case it is not found for what time these two acres had been used with the house: And there was sufficient to supply the words Cum pertinent for ought that appears: And if the Law be so, the two acres do not passe, but discend to Thomas Keene, and the Feoffment good.

2. If by these words it be an Estate-tail; as in Beresfords Case, Coke lib: 7. fol: 41. 9 E: 3. Fitz: tail 21. 12 E: 3. 7 E: 6. 16 Eliz: in Chapmans case, or a Fee-simple: And yet Yelverton and Crook inclined that it was [Page 86] an Estate-tail; but Lord Richardson, Hutton, and Harvey to the con­trary, for an intent against Law shall be void, vide Abraham and Twiggs case, Co [...]e lib: 7. fol: 41.

3. If the Collaterall Warranty which descended had extinguish [...] and barred the right of Anne Keene. Henden would have maintained it, because that the Warranty is speciall, although it was collaterall, that it did not Bar, which is san [...] question (be it speciall or generall) it bars the others upon whom it descends, vide Coke lib: 15. Seniors case, he held no descent, and then no Bar, 12 E: 4. discontinuance 50. 7 H: 6. speciall Warranty shall be used by Rebutter, but not by Vou­cher. And Iudgment for the Plaintiff.

If a Feme shal have a superse­deas upon an Exigent a­gainst Baron and Feme. Un supersedeas fuit Mis [...] for the Feme upon an Exigent against Ba­ron and Feme: And upon much debate; it was agreed, that the Feme (for the safeguard of her self from imprisonment) being returned upon the Exigent, or upon the Capias, viz. upon the one Quod reddidit [...] upon the other Caepi, and as to the Husband (Non est inventus) may appear; and so long as the Processe continues against the Husband, she shall have idem dies: But when the Baron is returned utlegatus, she shall be discharged sans idem d [...]es: And that stands well and racon­ciles all the Books. But whether she shall have a Supersedeas de non molestando, is doubtfull, for by the 11 of H: 4. 80. and Dyer 271. if the Baron be outlawed, and the Wife W [...]ived, and the King pardon the Feme, that shall be allowed, and she shall go sine die, and vide 4 E: [...]. 34. and 14 H: 6. 14. 13 H: 4. 1. And it seemed by all to be agreed, that the Baron after he purchaseth his pardon, or after he come and reverse the Outlawry, he shall not have allowance of his Pardon, nor his ap­pearance received, si non qui il amesne sa feme qui par le presumption de leye est amesnable per luy, mes les baron n'est amesnable per le feme, vide 18 E: 4. 4. there the case was, that a Feme Covert was sued as Feme sole, her Husband being beyond Sea, and not known to be alive, and she was outlawed, and then her Husband came again, and brought a Writ of Error for the reversall therof in his name and in the name of his Wife; And there it is said that it is questionable, being that he was not party to the Suit. And then one said, that it would be a good way to be rid of a Shrew. And the Prothonotaries said, that no Supersedeas was ever granted for the Wife in such a case.

Hil. 2 Car. Sir Charles Howards Case.

MEmorand. That the Earl of Marleborough, Lord Treasurer of England, came to Serjeants Inn in Chancery Lane, 6. Febr. and there assembled all the Iustices to have their opinion, upon a Case which was depending in the Exchequer Chamber, Where the of­fice of the kee­per of a Park is gone if the K [...]ng dispark it. upon an English Bill for the King by the Attorney-generall, against Sir Charles How­ard, for avoiding the possession of a Lodge, and desisting from taking the profits of a Park called Putney Mooreclapp; the Custody of which Park, and three pounds annuall Fee, with the Windfalls, &c. and the [Page 87] custody of the Lodge was granted to him. The King which now is, by his Charter disparked the Park, and after granted all the D [...]er to Sir Richard Weston Chancellor of the Exchequer: And whether by this disparking of the Park the office of the Keepership he determined, or no; then whether the annuall Fee be determined; then if the casuall profits, as Windfalls, &c. may be yet taken by Charles Howard who is the Patentes.

And upon debate it was unanimously agreed, that the King might dispark his Park; and that by the disparking therof, the Office of the Keepership is gone and determined: for Sublata causa tollitur effectus, and this Office is not of necessity, and such Offices are not prefumed in Law to be altogether for the benefit of the Patentes, but recipro­cally for the Commodity of the King, and by the disparking of the Park, the labour and charge is gone.

It was also agreed, that the King might discharge the Patentee of this Office, although the Park continue. And i [...] one grant the Ste­wardship of a Mannor, and he dismember the Mannor, the Office de­termines; And if a Corporation grant the Office of Town-Clerk, or of Recorder, and after surrender their Patent, and take a new Pa­tent, which incorporates them by a new name, all the Offices are determined. It was agreed that the annuall Fee certain remain in both cases, be he discharged, or be the Park disparked, vide 5 E: 4. 9. 4 E: 4. 22. 18. E: 4. 9 Dyer 71. 6 H: 8. Kelway 171. Plowd: Sir Thomas Wrothes case.

The Earl of Lincolns Case.

MEmorand. That the Sollicitor Generall moved, that Sir Henry Fines had preferred a Bill against the Earl of Lincoln in this Court:Where a Lord may bri [...] sworn. And there was a Commission De dedimus potestatem granted to take his answer upon Oath; and he offered his answer upon his Honor. And the Commissioners returned this speciall matter, and he prayed an Attachment: And this case was propounded to the Iudg­ges, and it was resolved by them, the Lord Keeper, and all the Court of Star-chamber, that he ought to answer upon his Oath, for it is Jura­mentum purgationis, and not promissionis; Also it is not demin [...]tion of his Honor, to be sworn concerning that which he would not have to be put upon his Honor. Also it is a good Rule. Testi non jurato non est credend, in judicio: And Princes are sworn to all their Leagues and Confederacies, which is called Jeram [...]ntum confirmationis.

Hil. 2 Car. Winsmore versus Hobart. Trin. 27 Eliz. Rot. 850.

IN an Ejectione firmae brought by Thomas Winsmore, against Micha­ [...]l Hobart, upon a Lease made by Edward Long, the Iury gave a spe­ciall Verdict.

[Page 88] Habendum to parties not named in the Deed. William Lord Sturton, seised of the Tenements (in the Count) in Fee, by Indenture demised them to Thomas Hobart, habendum to the said Thomas Hobart, and to the said Michael Hobart, Iohn Ho­bart and Henry Hobart, Sons of the said Thomas for their lives, and the life of the Survivor of them successively; By vertue wherof the said Thomas entred, and was seised for life. And the Lord Sturton gran­ted the Reversion to Thomas Long in Fee, to whom Thomas Ho­bart attorned, Thomas Long devised it to Edward Long in tail, Ed­ward Long died seised, and the Reversion descended to Edward his Son, the Lessor of the Plaintiff, Thomas Hobart and Henry died, Mi­chael and Iohn survived, Michael entred, Thomas Long entred upon him, and made a Lease to the Plaintiff, who entred, and was possessed, untill the Defendant ousted him. And Judgment was given for the Plaintiff.

The Habendum was void as to all them which were not parties to the Deed.

Pasch. 3. Car. Hartox and Cock's Case. Entred Pasch. 2 Car. Rot. 1761.

A Quare Impedit was brought by George Hartox and Cocks against the Bishop of Lincoln, Advowson in grosse for life. Lord Keeper of the great Seal, Mary Hewes, and David Dublin Clark for the Church of Essington. The Issue being joyned by the Incumbent, upon the Appendancy, the Evi­dence given to the Plaintiff to prove it was such.

Henry 6. was seised of the Mannor in Fee, and granted it to Mary his Consort for life, Habendum una cum advocatione of the said Church: The Queen Mary presented, and after there was a Presentment by Laps, then the said Queen presented again; And afterwards Edward the fourth seised of the said Mannor, presented, and then Henry the seventh, and Henry the eighth: And the King Edward the sixth gran­ted the Mannor and other Mannors, and the Advowson to Sir Iohn Pawlet in Fee, reserving Tenure in Capite for the Maonnrs, and So­cage Tenure for the Advowson: And the said Sir Iohn Pawlet gran­ted the Mannor and the Advowson to William Tooke in Fee, who presented the last Incumbent; and under this Title the Plaintiffs entitle themselves.

The Defend. said, that the said Wil. Took was seised of the said Ad­vowson, and it defended to William Tooke the Son, and granted the next avoidance, and it came to Mary H [...]wes who presented the Defen­dant Dublin, and the Evidence to prove that it was in grosse, was, Hen­ry the third being seised in Fee of the Mannor of Essinton, made a Lease therof to his Brother for life, and excepted the Advowson, and then up­on the expressing of the Advowson, upon the Grant of Edward the sixth, and the reservation of severall Tenures; And this was their Evi­dence.

And Serjeant Henden maintained, that by this exception of the Ad­vowson, when it was granted for life, made it to be in grosse for ever: [Page 89] And he vouched 38 H: 6. 13. Quare Impedit by the King against the Abbey of Sion, and the Incumbent there, by the Exception of the Ad­vowson it was become in grosse, and there one said, at least during the Estate for life, and that is all which is implyed by the Book, for the Iudgment is for the King, because that it being not appendant, is pas­sed not by the Grant, by the Habendum una cum, &c. And though that the Court unement agreed that it is but in grosse, for the Estate for life, and that it is all one, as if the King had granted the Advowson which is appendant for life, and the Grantee dies, and the Advowson is appendant again, and yet he insisted and persisted to have a speciall Verdict found therupon: And I moved my Brother Yelverton, that before we admit of a speciall Verdict (as it hath been used in former times) to go to the Iudges of the Kings Bench, and to put the case to them, to know their opinion, and when he came again, and declared it, we put it upon the Iury to try the matter, and they came in and found for the Plaintiff; And after that the Demurrer, which was joyn­ed for the other Defendant Mary, was by consent entred for the Plain­tiff, vide Dyer 34 in appeal, vide 7 H. 6. 37.

Chidley's Case.

CHidley brought a Quid juris clamat, and had Iudgment against the Defendant; and the Plaintiff had made a Warrant to his Attor­ney for the receiving of his Attornment,Quid juris cla­mat. and the Defendant would have attorned, but would not do his Fealty: And the Presidents were. that he ought to be sworn in Court; and the entry of the Iudgment is, that he did attorn: And fecit fidelitatem, and so he was sworn in Court, vid. 37 H: 6. 14. If he refuse to attorn being in Court, he shall be com­mitted for contempt: Moyle said, that that is Attornment, but Prisot said, that he should not have a Writ of Wast, nor arraign an Assise un­till he assent.

Trin. 3 Car. Rot. Humbleton versus Buck.

SImon Humbleton brought an action upon the case against Buck, Case. Assumpsit in consideration of defending Suit in main­tenance of a Title of Com­mon. and counted, that wheras a Controversie was between the Inhabitants and Tenants of Fletam, and one Palmer, for and concerning the having of Common in one parcell of Land which was a Sea-bank, in which they had Common of Pasturs, for taking by Cattell, and also by taking and cutting the Grasse: And wheras the said Palmer had brought an action of Trespasse against the now Plaintiff, for entry made by him in the said close, and for taking his Grasse, pretending that the said Land in which he claimed Common was his severall, and free from their claim of Common, the Defendant in consideration that the Plaintiff had given to him a Iugg of Beer, and that he at the request of the Defendant would prosecute and defend [...]he said Suit for the maintenance of their Common against the said Palmer, untill the de­termination [Page 90] therof, he promised to pay to the Plaintiff one moyety of his charges, and over and besides twenty pounds, and that therupon he defended the said Suit, and pleaded Not guilty, and at the tryall therof Palmer was non-suited, and that, that was for the maintenance of the Common, and that he expended in defence and prosecution of the said Suit forty pounds.

The Defendant confessed all the Inducement, and also a promise sub modo, and sayd, that the said Palmer had brought Trespasse, to which the Plaintiff had pleaded Not guilty, absque hoc, that the said suit and tryall was for the said Common; And Issue being joyned it was found for the Plaintiff, and Damages to twenty pounds. And in Arrest of Iudgment it was moved, that now it appears, that it was not for the maintenance of the Title of Common, & that it could not be for the try­all therof, because he did not plead the Title of Common, which had been the proper & apt way for the tryall therof: And when the Iury find that which is contrary and repugnant to Law, that is repugnant and not good. And this case was strongly argued by Serjeant Davenport in Arrest of Iudgment, and by Attho for the having of Iudgment: And first he said, That although there was a Parlance and Commu­nication concerning the Common, yet the promise is to defend this a­ction brought by Palmer, and is pro defentione of the Common, not generally, but against Palmer, and the promise is to pay the Moyety of the Charges, if he prosecute the said Suit, untill the determination therof, so that if it had been found against the now Plaintiff, the now Defendant ought to have paid the Moyety of the said charges: And it is not agreed that he shall plead title by Prescription for the Common, but that he should prosecute it untill the determination of the Suit, for the maintenance of the Common. And the Court gave Iudgment for the Plaintiff, for it might be for the maintenance of their Common against Palmer, for if he had not the Soil therof, but had inclosed it as part of his Wasts, the Plaintiff could not plead the Title to Com­mon without admitting the Soil and Free-hold to be in Palmer: And if one had been of councell, and to advise a Plea, if he had not disco­vered that Palmer had no Title, he would have advised him to have pleaded Not guilty; for if the said Palmer had no Title to the Soil (which the now Plaintiff could not know) it should be found against him; and so this Plea might have been in maintenance of Com­mon.

And the Lord Richardson who at first doubted, now concurred, and sayd, that he was fully satisfied.

Trin 3. Car. Chapman versus Chapman.

Debt. REbecca Chapman brought an action of Debt against Henry Chap­man, upon an Obligation with Condition to perform the Cove­nants contained in certain Indentures. The Defendant pleaded a ge­nerall performance, the Plaintiff replyed and shewed, that she made a Lease to the Defendant of certain Cole-pits, rendring eighty pounds [Page 91] Rent, and that the Defendant did not pay the Rent at the day,Obligation conditioned for the pay­ment of Rent, demand is not necessary to be alled­ged after ge­nerall perfor­mance plead­ed. wher­upon the Defendant demurred.

And it was adjudged upon Argument for the Plaintiff: but the mat­ter upon which the Defendant justified came not in question, viz. If the Plaintiff ought to have demanded the Rent: And that the Obliga­tion had not altered the nature of the Rent, it being generall to perform all Covenants; and the reason is apparent, for when the Defendant plead performance of all the payments, that is intended an actuall pay­ment, for he cannot now rejoyn, that he made tender, for that shall be a departure from his Plea. And that was the reason of the Iudgment which was Pasch. 43 Eliz. between John Specot Plaintiff,Specot and Shere. and Emanu­el Shere Defendant, upon the like case in debt upon an Obligation, wheras the Defendant had granted an Annuity or Rent of six and twen­ty shillings eight pence to the Plaintiff, for one and twenty years, the Condition was, that if the said Shere perform all the Covenants, &c. conteined in the said Writing, so that the Plaintiff may enjoy the Rent according to the intent therof, then, &c. the Defendant recited the Deed and pleaded performance, the Plaintiff replyed that the De­fendant had not paid the said eight and twenty shillings eight pence upon such a Feast, wherupon the Defendant demurred, and adjudged for the Plaintiff. And the Lord Coke in his private Book (as the Lord chief Baron said) had shewn this reason: If the Defendant had pleaded specially, That he was upon the Land, and ready to pay, and to make tender, but the Plaintiff did not come to demand it, then the Plaintiff ought to shew that he did demand it, which seems to be a­greed, 14 E: 4. 4. 2 H. 6. 57. 11 E: 4. 10. 21 E: 4, 42. but Brook 6 E: 6. Ten­der, makes this diversity, when the Condition is expressed to pay the Rent, that alters the nature of the Rent: But otherwise when it is to perform Covenants. And the Iudgment given in the Kings Bench was affirmed.

Trin. 3 Car. Stephens versus Oldsworth.

IN a Quare Impedit brought by Stephens and Cross against Oldsworth and Holmes, for the Church of Lechamseed, the Incumbent pleaded,Quare Impedit. Tenure. that he was Parson Imparsonee to the Church, of the presentation of the King, and confessed the Seisin of Sir Anthony Greenwood (under whom, by the grant of the next avoidance the Plaintiffs claim) but said, that the said Sir Anthony held the said Mannor of the King, per redditum ac wardam Castri Dower, to be paid yearly 8 s. 1 d. ob. q. And among other matters (which I omit) it was resolved that it was Socage Tenure, for a Rent for Castleguard is Socage, vide Lit­tleton 26. Coke lib: 4. fol: 6. 5 E: 4. fol. 128. F.N.B. 256. a

Mich. 3 Car. Young versus Young.

Formedon in Descender, Act of Court shall be amen­ded.IN a Formedon in the Descender, brought by Young against Young, the Demandant was within age, and was admitted to prosecute by his Guardians, and that appears by a generall admittance, before Iustice Jones: And this admittance was first entred in the remem­brance of Gulstons Office, and afterwards in the Plea Roll: And the Demandant which is admitted by the Court, viz. per Guardianos ad hoc per Curiam admissus, and there the Concessit per Curiam quod prosequatur per Gardianos is entred, and so is the Roll upon the View▪ And in the Philizers Roll the recitall is, That the Demandant per Gardianos admissus obtulit se. And in this Roll the Concessit per curi­am of admitting the Demandant to prosecute by his Guardian is not entred. And after Verdict, and Iudgment for the Demandant, a Writ of Error was brought, and that assigned for Error: And it was moved that it might be entred upon the Philizers Roll. And it was resolved by all the Court that it should be supplyed and entred upon the Phili­zers Roll; and the principall reason was, because that this admittance by his Guardians, is the act of the Court, and not like to the entry of the Warrant of Attorney, nor to the Essoin Roll, vide Dyer 330. other­wise it is of Admission by Prochein ami, Where an In­fant ought to appeare by Gardian, and where by Pro­chein amy. vide Rawlins case, Coke lib. 4. fol: 53. The use of the Kings Bench is never to enter the Admission, but only to recite it in the Count, vide 11 H: 7. Rot: 412. In a Writ of Right by Baron and Feme, and another Feme Infants, there per cu­stodes good, vide 8 E: 4, 5. for the Mainprise entred in another Term, lib: Intractionum fol: 366. It was vouched by Croke, and affirmed by Yelverton in one Simpsons case in Durham, Simpsons case. where the Tenant was by Prochein amy, where it should be by Guardian, was Error. The Pre­sidents are, that an Infant when he sue, may be by Guardian, or Pro­chein amy, the one or the other; but when he is sued, it shall be by Guardian.

Mich. 3 Car. Wolfe versus Hole.

WOlfe an Attorney Plaintiff against Hole, by a Writ of Privi­ledge,Amendment. and he Count upon an Assumpsit: And after Verdict gi­ven and Iudgment, a Writ of Error was brought, and moved that there was a default in the Imparlance Roll: viz. fault de trover pledges, which was as it ought to be in the Plea Roll: And it was moved that it might be amended, and after debate at Bar, by Henden and Daven­port, it was resolved that the not finding of Pledges is not matter of form, but matter of substance, and it concerns the King, for if the cause to amerce the Plaintiff, the Iudgment is, Ideo le Plaintiff & ses pledge; sont Amerce, and that it is not aided by the Statute of 18 Eliz. quod quaere, and vide 12 Eliz: Dyer 288. there is a Case written by me, that An: 17 Jac: was amended after the Verdict; and in one Hilla­ries [Page 93] case, and vide th [...]re in Dyer, that the Plaintiff when he is sued by Priviledges, ought to find pledges, and that as well, as when a Bill is filed against an Attorney. But now, because that it was assigned for Error, and that if it be amendable, the Iustices of the Kings Bench would amend it, this Court would not; but if it had been in the Im­parlance Roll, and omitted in the Plea Roll, it should be amended, vide 18 E: 4. 9. that Pledges may be entred at any time.

Hil. 2. Car. Rot. 565. Hilton versus Paule.

RIchard Hilton brought an action of Trespasse against Robert Paule, Trespasse. Which shall be said a Pa­rish Church within the act of 43 Eliz. for the mainte­nance of th [...] poor. for the taking of a Saddle at Stoke-Goldenham: And upon Not guilty pleaded, the Iury gave a speciall Verdict, Viz.

That the Parish of Hinkley was de temps dont memory, &c. and yet is an ancient Rectory, and a Church Parochiall; And that the Town of Stoke-Goldenham is an ancient Town, and parcell of the Rectory of Hinkley. And that from the time of H. 6. and afterwards untill this time, there hath been and is in the Town of Goldenham, a Church, which by all the said time hath been used and reputed as a Parish: And that the Inhabitants of Stoke-G. by all the said time had had all Paro­chiall Rights, and Church-wardens; And that the Tow [...] of Stoke-Goldenham is distant two miles from Hinkley. And the Verdict con­cluded, it it should seem to them, that Stoke Goldenham is a Parish for the relief of Poor, within the Statute of 43 Eliz. cap. 2. then they find for the Plaintiff, if not for the Defendant.

And this Case was argued by Serjeant Barkley, and he vouched Lin­wood fol: 89. and said, that there is Ecclesia major & minor, and a de­pendant Church upon the principall, and another Church, and which is found to be used and reputed, ergo it is not a Parish. And that the Exception of the Chappell of Foulnes, which by the Statute is made a Parish, proves that Chappell and Parish are not within the Statute: he vouched 4 E: 4. 39. and 5 E: 4. to prove that divers Town may be one Parish.

And the Lord Richardson said, that it is a clear case, that this is a Parish, within the intent of the Statute of 43 Eliz. for the relief of Poor; And that the Church-wardens and Overseers of Stoke-Gol­denham might assesse for the relief of the Poor. And though it be found that after the time of H. 6. and untill now, it had been used as a Pa­rish Church, that doth not exclude that it was not used so before. And a Reputative Chantery is within the Statute of Chantries, 1 E: 6. And this Statute being made for the relief of the Poor, and that they might not wander, therfore the intent of the Statute is to confine the relief to Parishes then in esse, and so used: And every one of the Court delivered their opinion, and concurred: And so Iudgment was given for the Plaintiff.

Hil. 3 Car. Peto versus Pemmerton. Mich. 3 Car. Rot. 414.

Replevin.SIr Edward Peto Knight, brought Replevin against Robert Pem­merton and Giles Thompson; The Defendants made Conusance as Bayliffs to Humphrey Peto, Where Gran­tee of a Rent-charge takes a Lease of part of the Land, and surren­ders it, the Rent shall be revived. and that Humphrey the Father of the said Humphry (was seised of the place in which, &c. in Fee, and by his Deed granted the Rent of six pounds to the said Humphrey his Son for life out therof, to Commence after the Death of the Grantor, and shewed that Humphrey the Father died, and for Rent arrear, &c.

The Plaintiff in Bar to the Avowry confesse the grant and seisin of the Land, and that the said Humphrey died seised of the Land out of which the Rent was granted, and that that descended to William, and from William to the Plaintiff, who entred, and demised to the said Humphrey the Son, parcell of the Lands unde &c. for five hundred years, by force of which Lease, the said Humphrey had entred and was possessed.

The Defendants replyed, that afterwards and before any part (for which they made Conusance) was arrear, the said Humphrey the Son surrendred the said Lease to Sir Edward Peto, to which surrender the said Sir Edward agreed, wherupon the Plaintiff demurred.

And this Case was argued by Henden, and he said, that when the act of him which had the Rent made the suspension, his act alone could not revive it; But a Rent suspended might be revived by the act of Law, or by the joynt act or agreement of the parties by whom the suspension was made, 21 H. 7. 7. 19 H: 6. 4. 19 H: 6. 45. 7 H: 6. 2.

As for the personall things, when they are suspended, they are ex­tinct, unlesse it be in auter droit, as if Feme Executrix take the Deb­tor to Husband, and the Baron dies, the Wife shall have an action of Debt against his Executors.

One reason in this case is, because that by the surrender which is ac­cepted, the Contract is determined, and that is by the act of both.

And by the surrender the Estate for years is extinguisht to all purpo­ses, as to that to which the surrender was made; as if he had granted a Rent, now it shall commence, and he is seised in Fee, and may hold it charged with both the Rents, 2 H: 5. 7. 5 H: 5. 34. Ass. 15.

And this Estate surrendred is in Esse, as to the benefit of strangers, but not as to the benefit of him who accepted it, for hee is seised in Fee, vide Lillingstons case.

And the Court was of opinion, that the Rent was revived, and that the Contract is now determined. Nota, that this grant to Humphrey the Son for years, was but upon confidence to assign it over.

If Grantee of an Estate for life of a Rent, take an Estate for life of part of the Land, and surrender it, yet the Rent is not revived, for it was extinct in this case, if he had granted his interest, quere, and if he had granted his interest over to I. S. and he had surrendred it, that shall not revive the Rent, because that he had by his granting over of his in­terest, [Page 95] discharged of the Rent extinguish it, quaere: but in the princi­pall case the Rent was suspended by the acceptance of the Lease, and is revived by the surrender. And it was agreed; that where Lessee for years surrender, to which the Lessor agree, and accept it, the possessi­on and the interest is in him without entry.

Hil. 3 Car. Sandford versus Cooper.

SAndford brought a Scire facias against Cooper to have execution of a Iudgment for sixteen pounds,Sci. fac. which Iudgment was de Oct. Hil. An. 2 Car. And one being returned Ter-tenant, pleaded that after the Iudgment, viz. 22 Jan. he (against whom the Iudgment was) viz. John Bill acknowledged a Statute-staple, and shewe [...], that by that the Land was extended, and after upon liberate delivered in Execution, and demand Iudgment, wherupon the Plaintiff demurred.

And the sole question was, to what day the Iudgment shall have re­lation, for it appears in the pleading,To what day a Judgment shall have re­lation. that the twentieth day of January was the day of Essoin; and it seemed to the Court that the Iudgment should have relation to the first day of this return, as well as if it had been a return in the Tearm, viz. 15 Hil. for otherwise it should be un­certain. And he may be Non-suited upon this day, vide 5 Eliz. Dyer fol. 200. That a recovery being in the first return, the Warrant of At­torney made and dated the fourth day, is taken to be a Warrant after Iudgment, and vide 33 E: 6. fol: 45, 46. the principall case there: If a Nisi prius taken after the day of Essoin, shall be good, and it is adjudged not, for the first day is the return: And it was agreed, that in Com­mon Parlance, the first day of the Tearm is the fourth day, viz. If one be obliged to appear, or to pay monies the first day of such a Tearm. Loquendum est ut vulgus. But the Law relate the Iudgment to the first day of every return, vide Dyer 361. a Release pleaded after the Darrein Continuance, which was dated the one and twentieth of Ja­nuary, which was the day after the Essoin day, and it was not good, for it ought to be before the utas Hillarii: Gillinghams case. And my Brother Harvey and Crook vouched one Gillinghams case, viz. A Release of all Iudg­ments before the fourth day, and after the day of Essoin would not re­lease this Iudgment, which was de Octab. Hil. vide many cases vouch­ed to this purpose, 4 E: 3.34 H: 6. 20. a Writ of Error brought after the utas, and before the fourth, that is good, and brought after Iudgment, vide 22 H: 6. 7. a. a Writ of Error ought to be brought after the Iudg­ment rendred, or otherwise no Execution shall be stayed▪ And all the Court gave Iudgment for the Plaintiff in this Scire facias.

Hil. 3 Car. Holt versus Sambach. Trin. 2 Car. Rot. 731.

Replevin. Tenant for life with a re­mainder to him in tail ex­pectant, and remainder in fee, grant a rent in fee, & afterwards had fee by fine.SIr Thomas Holt brought Replevin against Thomas Sambach, in which upon Demurrer the Case was.

Sir William Catesby (being Tenant for life of Land, the remain­der in tail to Robert his Son, the remainder in Fee) granted a Rent of ten pounds by the year out therof to William Sambach in Fee, and Sir William and Robert his Son levied a Fine with Proclamations, which was to the use of the said Sir William in Fee, and afterwards the said Sir William enfeoffed Sir Thomas Holt, and died; Robert had Issue Robert and died: And the Court was of opinion, that this Grant in Fee is good, for he had an Estate for life in possession, and an Estate of remainder in tail, and remainder in Fee, in himself to charge, and then the Fee-simple passe by the Grant: And although that Robert the Son might have avoided it, yet when he had barred the Estate-tail, &c. by Fine to the use of Sir William, now Sir William Catesby had by this acceptance of this Estate to himself, avoided the means by which he might have avoided the Rent. And although that in Bredons case, in the first Book, when Tenant for life, and he in the remainder in tail joyn in a Fine, rendring Rent to Tenant for life, that passeth from every one, that which lawfully might passe, and that the Rent continue after the death of him in the remainder in tail with­out Issue; yet in this case the Estate is barred by the Fine, and uni­ted to that Estate, which William the Grantor had, and now William is seised in Fee, and this Rent made unavoidable.

The Case was well argued by Henden and Davenport, but it appea­red that the Conusance was for twenty shillings, part of the rent of fif­ty pounds behind, and for fifty pounds, parcell of two hundred pounds arrear for Nomine poenae, and did not say in his Avowry, that he was sa­tisfied of the rest: And therfore Iudgment was given for the Plain­tiff, vide 20 E: 4. 2, a. 48 E. 3. 3.

Chichley versus the Bishop of Ely.

Quare ImpeditDAme Dorothy Chichley brought a Quare Impedit against Nich: Bi­shop of Ely, and Mark Thompson the Incumbent for the Church of Wimple, and counted, that Thomas Chichley was seised of the Advow­son of the said Church in Fee as in grosse, and presented to it being void, Edward Marshall which was Instituted and Inducted, and after­ward the said Thomas Chichley died seised, and the Advowson descen­ded to his Son and Heir Sir Thomas Chichley, Traverse upon Traverse. who by his Deed in­dented, &c. for the increase of the Ioynture of the Plaintiff, granted the said Advowson to Thomas East, and Edward Anger and their Heirs, to the use of the said Plaintiff for life, and afterwards to the use of the [Page 97] Heirs Males of the body of Sir Thomas Chichley; and that by force therof she was seised for life: And the Church being hold by the death of the said Edward Marshall she presented, and the Defendants distur­bed her.

The said Bishop died, and the Defendant plead that he is parsona imparsonata ex presentatione Domini Regis nunc: And said, that Sir Thomas Chichley was seised in Fee of the said Advowson, and also of the Mannor of Preston, and divers other Lands in the County of Cam­bridge, which Mannors and Lands were holden of King James in Ca­pite by Knights-service, and being so seised he died, and that this Ad­vowson and the Mannor descended to Thomas Chichley his Son and Heir, who at the time of his death was within age: And that after­wards by force of a Writ of Diem clausit extremum this matter was found, wherby the King seised the body, and was possessed of the Man­nor and of the Advowson, and that the said King James died, & the King which now is suscepit regimen hujus regni, and was possessed, and the Church became void; And the King by his Letters Patents under the great Seal, presented the Defendant Thompson, and traversed the Grant made by Sir Thomas Chichley, to Thomas East and Edward Anger of the said Advowson, as the Plaintiff had alledged.

The Plaintiff replyed protestand [...], that the Defendant is not Par­son Imparsonee, and that the Plea is insufficient, Pro placito dicit, quod non habetur aliquod tale recordum, talis inquisionis post mortem praedicti Thomae Chichley militis modo & forma prout, wherupon the Defendant demurred.

And after many Arguments at Ba [...], by Attho, Henden, Daven­port, and Hedley, it was adjudged for the Defendant. And that the Title of the Plaintiff being traversed, brought to have been maintain­ed, and not to traverse other matter alledged by the Defendant, for Traverse upon Traverse is only when the matter traversed is but In­ducement: Also it appears fully that the King is entituled to this Presentation, though there was not any Office, vide 21 E: 4. 14 H: 7. and then all the Titles of the King should be answered, and therfore the deniall of the Office is not materiall: for if he dies seised the King may present without Office, vide Bendoes case, 21 Eliz: Rot: 1378. Crachford against Gregory Lord Dacren, when the King is entituled by Office to an Advowson, though the very Title be in a stranger, yet if the Church be void, and he which hath Title present, this is but Vsurpation.

Vide 17 H: 7. Kel: 43. 11 H. 8. ibid. fol. 200. vide 21 E: 4. 1. 5 E: 4. 3. or 13. of things which lye in Grant, the King is in actuall possession,Crachfords case. 20 E: 4. 11. Stamf. fol: 54. 2. R: 3. issue 7. 28. 23 H: 8. Kel: 97. new Book of Entries fol: 130. vide there that Traverse is allowed to be taken upon Traverse, vide for that 9 H: 7. 9. 10 E: [...]. 49. Dyer 107. 10 E: 4. 2. 3. 6 E. 3. [...].

When two Titles appear for the King as here, the dying seised of the Advowson of Sir Thomas C. who also died seised of the Mannor of Preston holden in Capite, that is a good Title, and the Office found is another Title, and [...]oth ought to be answered in case of the King, vide for that matter, 37 H: 6. 6. 24 H: 3. 27. 46. E. 3 25 9 H: 6. 37. 39 H: 2. 4. 40 E: 3. 11. In case of severall charges to the King, although the King be not party, yet they ought to be answered.

Hedley Serjeant argued for the Plaintiff, that the presentment of [Page 98] the King tolls all the right of the Plaintiff, and therfore only ought to be answered, and he ought not to traverse the Title of the Plaintiff, which by the Plea was toll'd; but notwithstanding that, he answered not the dying seised of the Advowson, and the Tenure, by which the King is intituled upon the Office, and therfore all is one: And the Plaintiff had waved his Title, and not maintained it: And therfore Iudgment was given for the Defendant.

Pasch. 4 Car. Congham's Case.

Rescous by the Plaintiff in the primer action.IN an action upon the Case against Congham and his Wife, That wheras the Plaintiff hath recovered in Debt against one, and had a Writ of Capias ad satisfaciendum directed to the Sheriff of Cambridge­shire, and the Sheriff had arrested the party, and had him in Executi­on for the Debt, the Defendants rescued the party, and he escaped: Vpon Not guilty pleaded the Feme was found guilty of the Rescous: And it was moved in Arrest of Iudgment by Aleph, that this action lies not, because that Debt lies against the Sheriff: And the Sheriff shall have an action for the Rescous, vide F: N: B. 102. And properly this action of Rescous lies where it is upon mean processe, and that is for the delay by the Rescous, and damage may be greater or lesser accordingly: And the Rescous is according to the condition of him, which is arrested, for if he may be easily taken again, and that he becomes not more poor, that then the damage is the lesse, vide 16 E: 4. fol. 3.

But after divers motions at Bar Iudgment was given for the Plain­tiff: And the Lord Richardson held strongly that it lies. And this Tort may be punisht at the Suit of the party who had damage therby, viz. the party, the Sheriff or Baily: And Harvey and Crook agreed, but Yelverton and my self doubted therof, because that it is an imme­diate wrong to the Sheriff or Baily, and the party had no prejudice in common presumption, because that his action is transferred to the She­riff, who hath more ability to satisfie him.

Farrington versus Caymer.

LIonell Farrington qui tam pro se quam pro, &c. brought an Infor­mation against William Caymer, Information where it shall be brought. upon the Statute of 23 H. 8. cap. 4. against Ale-brewers and Bear-brewers, for selling Bear at higher prises then were assessed by the Iustices, upon Not guilty pleaded, the Plaintiff had a Verdict at Norfolk Assises.

And it was moved in Arrest of Iudgment, that the Information was brought in the Common Bench, and yet it was brought and tryed in the proper County where the Offence was committed, wheras by 33 H. 8. cap: 10. 37 H: 8 cap: 7. 21 Jac: cap: 4. it ought to be brought in the Country, and not in the Common Pleas.

[Page 99]And upon grand deliveration and hearing of councell of either part the Court resolved that Iudgment should be given for the Plaintiff. And first it was agreed, that (wheras by the Statute of 23 H. 8. cap. 4, which appoint that the Iustices of Peace assesse the prises of Bar­rels and other Vessels of Beer; and that they which sell against that rate forfeit six shillings, &c. to be recovered by action of Debt, Bill, Plaint, or Information in any Court of Record, in which no wager of Law, &c. and gives one Moyety to the party which will sue, and the o­ther to the King, no action may be brought in any Court of Record, but onely in one of the four Courts of Record at Westminster.

And the proof therof, see Coke lib: 6. fol: 19. Gregories case, and Dy­er 236. a.

Then the principall and sole point will be, if this Offence will be by the act of 33 H: 8. cap: 10. made presentable and punishable by the Iustices of Peace; at their six weeks Sessions; and it was unanimous­ly agreed that it is not. First, because the preamble of the act recite, that the Offences recited therin escape punishment, and for their more speedy and effectuall punishment, and repeat the particulars, but therin name not Brewers by expresse words, and it cannot be inten­ded that the intent of the Statute was to give them at their six weeks Sessions, to intermeddle with things not determinable at their gene­rall Sessions. And it was objected by A [...]tho, that Lambert and Cromp­ton had put it as an Article of their charge: To which it was answe­red, that it was in some respect inquirable at Common Law, viz. Mis­demeanors in Bear-brewers, Conspiracies and agreements to sell at such prises, and the making of wholsome Beer. Also it might be that they [...]ake the Law to be upon the Statute of 23 H: 8. that the Sessions being a Court of Record was within this act, that saies in any Court of Record: And then if it be not suable by Information before the Iu­stice [...] of Peace, the consequence is plain, that the Statute of 21 Jac. cap: 4. extends not therto, and the Statute of 37 of H: 8. makes not any thing in this case, but tolls the six weeks Sessions, and makes it in­quirable at the generall Sessions.

Ideo Iudgment for the Informer.

June 19. An. 22. Jac.

MEmorand. That upon a Conference at Serjeants Inn in Fleet-street, it was resolved and agreed, by the Lord chief Iustice Sir James [...]ea, the Lord Hobart, Baron Bromley, Baron Denham, Iustice Hutton, and Iustice Jones; That any one may erect an Inn for lodg­ing of Travellers, without any allowance or License,Resolutions concerning Innes, and who may keep an Inne, and how they may be suppressed. as well as any one before the Statute of 2 E: 6. might have kept a Common Alehouse, or as at this day one may set up to keep hackney Horses, or Coaches, to be hired by such as will use them: And all men may convert Barley into Mault, untill they be restrained by the act of Parliament made for that purpose. And as all men may set up Trades not restrained by the Act of 5 Eliz. which directeth, no man that hath not been bound, or ser­ved as an Apprentice by the space of seven years, or by restraint of set­ting up Trades in Corporations, by such as be not free, by the like rea­son all men may use the Trade of Inne-keeping, unlesse it could be [Page 100] brought to be within the Statute of 2 E: 6. which hath never been ta­ken to be subject to that Statute in point of license: And vide that an Hostler is chargable to the party which is his Guest, for the restoring of that which is lost in his House, and that by the Common Law of the Realm, vide 11 H: 4. fol: 45. see also, 11 H: 4. fol: 47. That in an action upon the case brought by the School-master of Glo­cester, for erecting another School to his prejudice, adjudged that no a­ction lies; and also it is there said, that if I have a Mill, and another erect another Mill, by which I lose my Custom, no action lies unlesse he disturb the water. And it was said by the chief Iustice, that it was so resolved before by the Iudges, and that Iustice Doderidge, Iustice Haughton, and Iustice Chamberlain were of the same opinion, and so now was my Brother Crew, the Kings Serjeant, who went the Cir­cuit of Surrey, Kent, and Essex; but the chief Baron Tanfield was of a contrary opinion: And it seemed to him that Innes were licensed at first, and Originally by the Iustices in Eire; but nothing could be shewne to that purpose: But all the Iustices were of a contrary opinion, and said, that that was the ground that begot the Pa­tent and Commission to Mounperson, viz. That the King might licence them, if the Iudges might.

And it was said by the Lord chief Iustice, that there was not any such thing in the Eires; but because that strangers which were aliens were abused and evilly intreated in the Inns, it was (upon complaint therof) provided that they should be well lodged, and Inns were assign­ed to them by the Iustices in Eire.

The second question was, if an Inn be erected in a remote and incon­venient place, so that it is dangerous to Travellers, and there har­bour men of bad same, which are apt to commit Robbery, whether that might be suppressed: And as to that all agreed that it is a common Nusance, and may be suppressed, and that to be by Indictment and presentment, to which the party may have his Traverse.

The third question was, whether when one which had erected an Inn be a man of bad behaviour, and such a person as is not fit to keep an Inn, how it should be aided and helped: And it was agreed by all, that upon Indictment or presentment therof he may have his Traverse, and if he be convicted, then to be suppressed, viz. that he which had so misdemeaned himself, should not keep it as an Inn, nor use it: But that it being an Inn, it may be used afterwards by another.

Fourthly, how and by what way or means the multitude of Inns might be prevented, by being suppressed, or redressed upon complaint, or how the number might be stinted. This Point seemed to be diffi­cult, and to contradict the resolution upon the first question: And therfore it was agreed that they should advise concerning it; and the best way is, that they be strictly inforced to keep the Assise, and not to suffer any to tipple in their Inns; and by this way they would desist from their Trade.

Mich. 4 Car. Mackerney versus Ewrin.

RIchard Mackerney brought an action upon the case against Jeffrey Ewrin, and count,Case. That wherea [...] one I. S. was indebted to the Plaintiff in seven pounds four shillings for pasture, feeding, and Oates for an Horse kept in the Stable of the Plaintiff:Consideration in an Assumpsit The Defendant in consideration that the Plaintiff at his request would deliver the Horse to him, to the use of the said John S. promised to pay the said seven pounds four shillings. And upon Non Assumpsit pleaded, and Verdict for the Plaintiff, Serjeant Callis moved in Arrest of Iudgment, that it is no good consideration, for the Plaintiff had not any property in the Horse, and he is not is do any other thing then the Law injoyn him to do: As if I lose my goods and another find them, and in considera­tion that he will deliver them to me I promise to pay him two hun­dred pounds, that is not sufficient matter to ground an Assumpsit ther­upon; But if a Taylor had made a Sute of Apparell for I. S. and I. D. request him to deliver it to him, and he will pay for the making therof, that is a good consideration, vide Coke lib: 8. fol: 147. And in this case all the Court were of opinion, that the consideration was good, for wheras he might have detained the Horse untill he had been paid for the pasture and feeding, he at the speciall request of the Defendant had de­livered the Horse to him, to the use of the Owner, which is to the pre­judice of the Plaintiff, and alienest to him to whose use he was deli­vered.

And Iustice Harvey vouched a case which was in this Court ad­judged, which was in consideration that the Plaintiff had promised to pay to the Defendant ten pounds at a day, according to the Conditi­on of an Obligation, the Defendant promised to deliver the Obliga­tion, and adjudged a good Consideration.

Turner versus Hodges.

THe Custom of the Mannor of [...] is found to be for the Copyholders (without the License of the Lord of the Mannor) they being seised in Fee, may make any Lease for a year,Custom in a Mannor to make a [...] Lease for years. or many years, and when they dye, that [...]e [...] shall cease, and that the Heir or Heirs may enter.

It was moved in Arrest of Iudgment, that this was a bad Custom, and that the Copyholders had by Custom an Inheritance, and might by the generall Custom of the Ream make a Lease for one year; And that tenor the generall Custom of the Realm, but the Custom of eve­ry Mannor within the Realm, vide Coke lib: 4. fol: 26. in Melwiches Case.

Custom creates the Estate, and the Custom is as ancient as the Estate, and is casuall, and upon the Act of God, and is reasonable, that the Heir who is to pay the Fine should have the Possession: And yet a Custom, that if the Copyholder had surrendred to the Lord, that the Lease should be void, had been a [...] Custom, because that he [Page 102] might subvert and destroy by his own act that Estate that he himself had made, and he which took the Lease ha [...]ing notice of the Custom, takes the Lease at his perill, for otherwise he might have procured the Li­cense of the Lord; and then by this License the Lord had dispenced therwith, and that is, as it were, the Confirmation of the Lord: For if a Copyholder makes a Lease for twenty years, with the License of the Lord, and after dies without Heirs, yet the Lease shall stand a­gainst the Lord by reason of his License, which amounts to a Confir­mation. And the Plaintiff had Iudgment.

Hil. 4 Car.

EJectione firmae was brought, and count upon a Lease made by Hus­band and Wife,Lease by Ba­ron and Feme without re­servation of a­ny Rent. and that was by Indenture: And upon Not guil­ty pleaded, a speciall Verdict was given, in which the sole question was, Whether this Lease was made by Baron and Feme, being there was no Rent reserved therby.

It was objected, that this Lease could not be made good by the Feme by any acceptance, and therfore it is not the Lease of the Feme, no more then if the Verdict had found that the Lease was by an Infant, and no Rent reserved, that had been a void Lease.

But it is contrary of a Baron and Feme, for the Baron had power, and the Feme joyning in the Lease, it is not void, for she may affirm the Lease by bringing a Writ of Wast, or she may accept Fealty: And so was the opinion of the Court, and Iudgment entred according­ly, vide Coke lib: 2. fol: 61. in Wiscots case. Count of a Lease by Baron & Feme, and shew not that it was by Deed, and yet good, vide Dyer 91.

Pasch. 5 Car. Paston versus Utber.

JOhn Paston brought Ejectione firmae against Barnard Utber, upon a Lease made by Mary Paston: And upon Not guilty pleaded, a speci­all Verdict was found at the Bar, and the Case was thus.

Custom, that the Lord have a Feild-course over the Lands of his Coppyholders if the Tenant inclose it is no forfeifture.Barnard Vtber seised of the said Land to him and his Heirs by Copy of Court-Roll, according to the Custom of the Mannor of Binham: And that within that Mannor there is such a Custom, that the Lord had had one field course for five hundred Ewes in the North-field, and the West-field (wherof these fifteen acres were parcell) from the Feast of Saint Michael, if the Corn were inned, and if it were not, then after the Corn were inned, untill the Feast of the Annunciation, if it were not before that time sown again with Corn, in all the Lands of the Co­pyholders not inclosed. And that it is a Custom, that no Copyholder may inclose any Copyhold Land without the License of the Lord: And if any be inclosed without License, then a reasonable fine should be as­sessed by the Lord or his Steward, for the Inclosure, if the Lord would accept therof. And it is also a Custom that if the Lord will not accept therof, then the Copyholder which so incloseth, shall be punished at every Court after, untill he open that Inclosure. And the said Vtber [Page 103] inclosed the 15. acres with an Hedge and Fence of Quick-set, 3. feet deep, and 6. feet broad; and that he had left 4. spaces of 9. feet broad in the said 15. acres: And that the said Vtber was required by the Stew­ard to lay open the said Inclosure, and he did it not, whereupon there was a command to the Bayliff to seise them as forfeit, which was done; And the said Mary being Seignoress of the Mannor entred, and leased to the Plaintiff, and the Defendant entred upon him.

Serjeant Davenport argued that it is a forfeiture, and against the Custom which creates the Feildage for the Lord, as well as the Estate of Copyhold for the Tenant, and that this leaving of four spaces is a fraud and device; and that it is against his Fealty, and is to the da­mage of the Lord, and a thing unlawfull, vide Dyer 245. 34 E. 1. For­medon 88. 15 A: 7. 10. 29 E: 3. 6. That if the Tenant inclose, the Commoner may break his hedges. And though by Littleton an Inclo­sure which is a Disseisin, is a totall Inclosure, wherby he which hath the rent cannot come to distrain, yet this also is an Inclosure, because that it obstructs the feild-course, for they cannot come so freely, without interuption or damage, for the hedges may deprive the Sheep of their wooll: And he compared it to the case of 3 H. 7. 4. One is obliged to make an Estate of his Mannor of Dale if he alien part and then make a Feoffment, the Condition is broken, and vide 5 E: 3. fol: 58. a Recog­nizance with Condition to make a Feoffment to I. S. of the Mannor, if he alien part therof, he forfeit his Recognizance, he vouched 42 E: 2. 5. and Coke lib: 4. that deniall of Services, or making of Wast is a for­feiture. 22 H: 6. 18. 41 E: 3. Wast 82. Dyer 364. And though that the Lord may proceed by fiue to enforce him to lay it open, yet these Af­firmative Customs do not toll the Negative. And to prove that the Lord had an Inheritance therin, he vouched 14 E: 2. Fitz. Grant 92. A Rent granted to one and his Heirs, out of the Mannor of Dale, which he hold of the Mannor of D. this is an Inheritance. And if this shall not be a forfeiture, then this Customary Inheritance, which the Lord had in the feild-course, might be tolled at the will and pleasure of the Copyholder. Serjeant Hitcham argued strongly to the contrary. First, That it is no Inclosure, because that all is not inclosed. Secondly, The forfeiture of a Copyhold is alwaies by some thing done to the Co­pyhold land it self, but this is done (as it is supposed) to the feild-course of the Lord, which is not Copyhold, and it is better for the Copyhold, and makes the land better, and also the Feild-course is therby made better, and more beneficiall to the Lord; and therfore the Copyhold land is not altered, but is meliorated, and it is like so the case in Dyer 361. Althams case, after no Wast done, the Evidence was, that a Trench was made in a Meadow, by which the Meadow was Meliora­ted, and adjudged no wast, which might be given in evidence: But he said that in Brooks case, at the first comming of Popham to be chief Iustice, it was adjudged, that if a Copyholder build a new house, it is a forfeiture, for that altoreth the nature of the thing, and put the Lord to more charge. So if Tenant for yeare makes a Hay-yard in the land, that is wast. He said, that this Custom is qualified by taking a Fine, if he would, or by imposing a pain in the Court, to enforce the Defen­dant to lay it open. And all the Court were of opinion, that this is no forfeiture, for the reasons before; and that this Feild-course is a thing which commence by agreement, and is but a Covenant, and not of com­mon right: And Forfeitures (which are odious in Law) shall be taken strickly.

Trin. 5 Car. Starkey versus Tayler.

Case. STarkey an Atterney of this Court, brought an action upon the case against one Mr. Tayler of Lincolns Inn, for saying of these words to him;Words. Thou art a common Barretor, and a Judas, and a Promoter. And it was moved in Arrest of Iudgment, that these words maintain not action, for the generality, and uncertainty, that he shall be called a common Barretor.

And the chief Iustice seemed to be of opinion, that those words are not more, then if he had said, That he was a common Brabler or Quar­reller. But it was urged by Serjeant Hicham that the action lies, and that it is a generall Rule, Quod sermo relatur ad personam; As in Birchley's Case, He is a corrupt man, And in Mores Case, it was said of an Attorney, That he was a cousening Knave: And if these words were spoken of a common person, he doubted if they were actionable, but being spoken of an Attorney, action lies. And if these words were spoken of Iudge, without doubt they were actionable: And in this case being spoken of an Attorney, who is a Minister of Iustice, and who hath the Causes of his Clients in his hands, to gain them, or to lose them. The Statute of Westminster saies, the Sheriffs are charged to expell all Barretors out of their Countries: And in the Statute of 34 E. 3. is the description of a common Barretor, and his punishment, who is a stirrer of false and unjust Suits, and that he shall be imprisoned during the pleasure of the King, bound to his good behaviour, and fined. And Littleton in his Chapter of Warranties faith, they are hired to keep Possessions, and therfore an action lies. But to say of another man, That he is a common Barretor, is not actio­nable, unlesse he saith, that he is convicted.

Hil. 3 Car Rot. 1302. Watt versus Maydewell.

WIlliam Watt brought an Ejectione firmae against Laurence Maydewell, Where accep­tance of a new Lease for years, makes a surrender of the former. upon a Lease made by Robert Rome, upon Not guilty, and a speciall Verdict found, the Case was thus.

Francis Griffith seised of Land in Fee, by Indenture, bearing date the fourteen of November, and 14 Iac. demised the said Land wher­of, &c. for one and forty years, to Robert Rome, rendring two shillings Rent, to commence from the Annunciation which shall be An: 1619. and after the same year by another Indenture, bearing date the third of December, 15 Iac. to commence from the Annunciation last, demised the same Lands for ninety nine years to Dame Frances Perroint, who entred and was therof possessed; And after that, the said Francis Griffith by another Indenture the same year, bearing date the fourteen day of November, 16 Iac. to commence from the seventeenth of No­vember, An. 1619. devise it to the said Robert Rome, for one and forty [Page 105] years, who accepted it, and afterwards entred, and being possessed made his Will, and appointed Executors, and died, the Executors admi­nistred, and made the Lease to the Plaintiff, who was possessed, untill he was ousted by the Defendant.

And the only question of this Case was, if the acceptance of the se­cond Lease by Robert Rome, had determined, discharged or extin­guished the former Lease.

And after Argument it was adjudged for the Plaintiff, the reason was, because that by the Lease made to the Lady Perpoint for ninety nine years, and her Entry, Francis Griffith had but a Reversion, and could not by his Contract made afterwards with Robert Rome, give a­ny Interest to Robert Rome. This Lease made to Robert Rome, viz. his former Lease was good in Interest, being to commence at a day to come, and is grantable over, and may be surrendred or determi­ned by matter in Law before the Commencement therof, as if he take a new Lease to commence presently, which see in 37 H. 6. 29. 22 E. 4. for it tuures in Contract.

And in this case it had been without question, that the taking of the new Lease had been a surrender of the former, if it were not by reason of the Lease for ninety nine years, which is for so great a number of years, that disables him to contract for one and forty years, 37 H. 6. 17. 18. 14 H. 7. 3. Dyer 140. Vide Smith and Stapletons case in Plowden, If a man makes a Lease for one and twenty years, and after makes a Lease for one and twenty yeares by Paroll, that is meerly void, but if the second Lease had beene by Deed, and hee had pro­cured the former Lease to Attorn he shall have the Reversion, vide Ive's Case, Coke lib: 5. fol: 11. there it is adjudged that the acceptance of a Leese for years, to Commence at a day to come is a present surren­der of a former Lease.

These Cases were vouched in this Case.Baker and Wil­loughby. Serjeant Bakers Case in the Court of Wards, with the Lady Willoughby, that a latter Lease taken by him which was void, did n [...]t surrender his former Lease which was good.

Sir Rowland Heywards Case, the Lessee had Election to take as a Lease, or as a Bargain and Sale, and that it is not by way of Estop­pell, because it was contracted out of the Reversion.

Trin. 14 Jac. Rot. 3308 Thompson against Green, Thompson and Green. Mills and Whitewood. adjudged that when one grants Proximam Advocationem to mother, this is meerly void.

13 Eliz. Rot. 1428. Ejectione firmae brought by Mills against White­wood, adjudged that where Lessee for years takes a new Lease after the death of his Lessor, of the Gardian in Socage, this is no surrender of his Lease.

42 Eliz. Rot. 105. In Sir Arthur Capels Case, adjudged [...] Rud who was Lessee for sixty years of an Advowson, when the Church was void, took a Presentation to himself of the Lessor, and is admit­ten and inducted, this was a Surrender of his Lease.

Mich. 5 Car. Baker versus Johnson.

A Iury was at the Bar in an Ejectione firmae brought by Henry Ba­ker against Bartholomew Johnson; upon a Lease made by James Baker, which was seised of two Marshes among others called Knight­swick and Southwick, In a recovery if the Town be omitted the Land do nor pass. which lye in an Island called Camby, in the Pa­rish there called North-Benfleet: And he being Tenant in tail, and in­tending to dock it, and to make himself seised in Fee, by Indenture, the 10. of Eliz. Covenanted to suffer a recovery of these two Marshes by name, and of many other Lands, and that it should be to the use of himself in Fee; and the recovery was had, and therin South-Benfleet and many other Parishes named, and Camby, but the Parish of North-Benfleet was omitted: And if the Lands in North-Benfleet passed or no; was the Question.

And it was strongly argued by Crew and Henden to have it found specially, it being in a Common Recovery, which is but a Common Conveyance. But all the Court agreed, that the Town and Parish be­ing omitted, although that Camby was a place known (but it appea­red that that extends in and to ten Towns) yet being in a Town, that the Recovery extends not therto, no more then if one had a Man­nor in the Town of Dale, which Mannor is called Bradford; and within the said Mannor is a place known which is called Braisty Wood, and he omit the Mannor and the Town, and say, the hundred acres of Land in Braisty Wood, that is not good. And the Court a­greed, that a Common Recovery is good in a Town, Parish, or Ham­let, and peradventure in a place known out of the Town, Parish, or Hamlet, as in the Forrest of Inglewood, in Insula de Thamete, &c. But if it should be admitted that a Common Recovery shall be good in a place known in a Town or Hamlet, that shall be absurd, for there is no Town, in which there are not twenty places known; and it had been adjudged, that a Venire facias de viceneto of a place known in a Town, without making the Visne of the Town, is not good.

Mich. 5 Car. Bill versus Lake.

Case. FRancis Bill brought an action upon the Case against Sir Aurthur Lake, and counted, that wheras at the speciall instance of Lettice Wife of the Defendant,Where the request is the cause of action he had provided for the said Lettice a Tasfety Roll, the Defendant did assume to pay as much as it was worth upon request And so in like manner for providing of Linnen stuff, &c. and making of severall Garments for the Wife, and aver that the severall things bought amount to such a summ, and the making therof was worth such a summ, which in toto, &c. and alledge the request: And aver that they were necessary Vestments, and convenient for the degree [Page 106] of the Wife, and after the making of them, he had delivered them to the Wife.

The Defendant pleaded the Statute of 21 of King James for Limi­tation, and said, that the Plaintiff within six years after the promise supposed, nor within three years after the end of the Parliament, had not prosecuted any Originall, or any Action upon this promise and As­sumpsion, wherupon the Plaintiff demurred.

And upon Argument at Bar by Serjeant Brampton for the Plain­tiff, and Davenport for the Defendant, the matter was reduced to this Question.

Whether the cause of Action shall be said upon the request, Quest. or upon the promise.

Brampton agreed, that where it is found upon an Assumpsit in Law, and that the request is but for increase of Damages, and not issuable, there the Assumpsit is the cause of the Action. But this cannot be foun­ded upon an Assumpsion in Law, because that it is not certain, but to be made certain; first, by the Plaintiffs buying and providing of the Stuff: Secondly, by the Plaintiffs termining and making therof; and then the matter of promise is for the payment of so much money as it should be reasonably worth, and therfore the request is there collate­rall, and then it is the cause of the action; and so within the Statute; if it be an action which is founded upon an Assumpsit in Law, then it doth not charge the Husband: see the difference when request is mate­riall and shall be alledged, and when not, in Mecholl and Pecks Case be­fore, and a Feme Covert is not capable to make any Contract, because she is Sub potestate viri: And though it be for necessaries of Diet and Apparrell, that shall not charge the Husband:Sir William Alephs Case. But an Infant is capa­ble to make Contract for Diet and Apparrel necessary. An: 25 Eliz: Sir William Alephs case was adjudged, that where an Infant had taken so much for his necessary Apparrell and Diet which amounted to fifty pounds, which was paid by Sir William Aleph; And he took an Obli­gation with a penalty, adjudged that it did not bind him in regard of the forfeiture: And Dyer 234. Sir Michael Penits case, the Wife took Sattin and Stuff to make her a Gown, and Sir Michael paid the Taylor for the making therof: And yet upon an action of Debt brought against the Husband, it was resolved that it did not charge him.

And that the request to the cause of the action, he vouched Dyer 31. 18 E: 4. 4. solvend sur request, and 9 H: 7. fol: 22. Replevin and Tenure for plowing the Land when he shall be required, he ought to alledge the request; and he concluded with a Case adjudged, Hil: 4 Car: Rot. 710. Banco Regis, between Shuesouth and Fernell, an action upon the Case, and count, that the Defendant, An: 1618. had kept a Dog, which he know had used to woory Sheep, and that the Dog had wooried and kil­led divers Sheep of the Plaintiffs: And the Defendant in considera­tion therof promised to satisfie the Plaintiff what he was damnified when he should be required therto; and the promise was An: 18 Jac. and the request and refusall was within the time of six years, and it was adjudged for the Plaintiff, because that the request is the cause of the Action, for without it he could not have his action.

And the sole matter upon which Davenport insisted, was, that this was a Contract by the Husband, wherupon the Plaintiff might have an action of Debt against him, and then it is but an Assumpsit in Law, and the request is not cause of action: And therfore he said, as well as [Page 108] Debt lies upon the delivery of Cloath to a Taylor for the making Gar­ments therof; so an action of Debt lies for the summ accompanying the speciall matter, viz. for the payment of so much as the making shall be reasonably worth, vide Coke lib: 4. fol: 147. so Debt lies as well a­gainst the said Sir Arthur, upon this promise being made then and there, he vouched 34 E: 1. Fitz: Debt 167. vet. N. B. fol: 62. 30 E: 3. 18. 19. 27 H: 8. Tatams case.

But the Court inclined that no action of Debt lay against Sir Ar­thur upon this Assumpsit, but only an action of the case upon the re­quest.

Mich. 4 Car. Treford versus Holmes.

Case. Assumpsit in consideration of forbearance TReford brought an action upon the Case against Holmes as Execu­tor, and counted, that wheras the Testator was indebted to the Plaintiff, the Defendant in consideration that the Plaintiff would forbear the said Debt for a reasonable time assumed to pay it: And this promise was made in December, and he shew forbearance untill March next; And upon Non assumpsit pleaded, and Verdict for the Plaintiff, Serjeant Thinn moved in Arrest of Iudgment, that it is no sufficient consideration, for the incertainty of the time, if it had been for a lit­tle time it had not been good: But the Court adjudged it good, for the Court ought to judge of the time whether it be reasonable, vide I­saac Sidleys case before: Then he moved another Exception, which was, that he had not shewn and averred in the Count that the Defen­dant had Assets at the time of the promise, vide Coke lib: 9. fol: 93. & 94. Baines Case, that ought to come on the other part, or otherwise it shall be upon Evidence, if it be necessary.

And Iudgment for the Plaintiff.

Mich. 5 Car. A strange increase of Water in Westminster-Hall.

MEmorand. That on Friday the twenty third day of October, by reason of the greatnesse of the Spring-tyde, and a great Flood, the Hall of Westminster was so full of water, that neither the Serjeants could come to the Bar, nor any stand in the Hall, for there was a Boat that rowed up and down there, and therfore all that was done, my Bro­ther Harvey went to the Stairs which came out of the Exchequer, and rode to the Treasury, and by this way went and set in the Court, and Adjourned all the Iuries, for it was the fourth day del tres Mich. And after that we were in the Exchequer Chamber, and heard four or five motions of the Prothonatories there.

This comming into Court was not of necessity, unlesse it had been the Essoin day, or that the Court should be Adjourned as Craft. Animar.

The Chancery and Kings Bench sate, for they came by the Court of Wards.

Freeman versus Stacy. Mich. 5 Car.

BEtween Freeman and Stacy, upon a speciall Verdict the Case was;y The Plaintiff count upon a Lease by Indenture for one and twenty years, rendring Rent, and in debt for the arrearages of this Rent; it ap­pears, that the arrearages of the Rent for which the action was brought, were due six years and more before the action brought.

And the Lord Richardson was of opinion,Arrearages of Rent reserved by Indenture is not within the act of 21 Jac. of Limi­tations. that Iudgment should be given against the Plaintiff, because the Statute of the 21. of King James, cap. 16. extends to Debts for arrearages of Rent expresly.

But I, and my Brother Harvey, and Brother Yelverton concurred, that this action of Debt being upon a Lease by Indenture, is not li­mited to any time by this Statute, but is out of it, and shall be brought as before the making of this Statute. The words are, All actions of debt, grounded upon any lending or Contract without specialty: All actions of Debt for arrearages of Rent, &c. And this is an action upon a Contract by specialty, 4 H: 6. 31. he ought to declare upon the Inden­ture, and it is a Contract, viz. a Lease: And there is cause of using the Indenture every half year. And it was resembled to the case upon the Statute of 32 H: 8. of Limitation, a Rent-charge which is founded upon a Deed or a Reservation of a Rent upon a Fee- [...]mple by Deed, are not within the Statute of Limitation. And nothing in this Sta­tute was intended to be limited, which was founded upon a Deed: And the words, Debt for arrearages of Rent, are supplyed and satisfied by the arrearages of Rent upon a Demise without Deed.

And as to the Obligation, that he proof of payment might be wan­ting when the occasion is brought so long after the Rent became due, that might be objected to Debt upon an Obligation, where the day of payment is for a long time past.

And afterward the Lord Richardson mutata opinione agreed with us; And Iudgment was given for the Plaintiff.

Trin. 6 Car. Shervin versus Cartwright.

SHervin brought a Writ De rationabile parte bonorum against Cart­wright, and counted of Custom in the County of Nottingham, Rationabl. pars. bonorum is not within the [...] Statute of 21 [...] Jac. of Limi­tations. and shew all specially, and the conclusion was, that he detaineth particular Goods of the party Plaintiff, which appertained to him as his part and portion: And upon Non detinet pleaded, it was found that the Plaintiff was intituled to this Action many years before the Statute of 21 Jac. and that he had not brought his action within the time limi­ted by the said Statute. And upon the speciall Verdict, the Case be­ing argued by Serjeant Ward for the Plaintiff, it was adjudged for the Plaintiff.

[Page 110]First, because that this Action is an Originall Writ in the Regi­ster, and is not mentioned in the said Act, and though that the Issue is Non detinet, yet this is no action of Detinue, for a Writ of Detinue lies not for money, unlesse it be in bags, but a Rationabile parte bono­rum lies for money in Pecuniis numeratis, vide the Book of Entries, Rationabile parte bonorum: And this action lies not before the Debts be paid: And the Account was, that therby it might be known for what it should be brought, and that in many cases requires longer time then the Statute gives.

Another reason was, that Statutes are not made to extend to those cases which seldom or never happen, as this case is, but to those that frequently happen.

Also this Statute tolls the Common Law, and shall not be exten­ded to equity. And upon all these reasons the Court gave Iudgment for the Plaintiff: And Serjeant Ward argued well, and vouched divers good Cases.

The Writ of Detinue supposeth properly in the thing demanded, vide 50 E. 3. 6.

Cook versus Cook.

WIlliam Cooke alias Barker, brought an Action of Wast against George Cook alias Barker, and count against him as Tenant for life,How a Writ of Wast shall be where there is a lease for life, re­mainder in fee. of the Lease of George Cook, and intitle himself to the Rever­sion, Ex assignatione of the said George, and shews that George Cook being seised in Fee, and the Ter-tenant in Socage, devised the Land to the Defendant for life, the remaineer in tail to the Plaintiff: And upon the Count the Defendant demurred.

And the Question was how the Writ should be, where a Lease is made for life, the remainder in Fee, for it cannot be, Quod de ipso te­net; And it seems that the Writ shall be speciall upon the Case, as a Fine levied to one for life, the remainder in Fee, the Writ shall be speciall upon the Case: And it seems that it shall never be Ex assigna­tione, but where the Reversion is granted over, vide 38 E: 3. fol. 23. the direct Case: and vide 38 H. 6. fol. 30. in the Writ of Consimili casu, vide F: N: B: fol: 207. in the Writ of Consimili casu, qui illud tenet ad vitam D. ex Assignatione praedicti B. quam I. filius & heres R. qui quidem R. il­lud praefat. D. demisit ad eundem terminum, inde fecit praefat. B. &c.

The Estate for life with a Remainder over, is but one Estate, and it was a question at Common Law, if he in remainder shall have an a­ction of Wast, vide 41 E: 3. 16. 42 E: 3. 19. 50 E. 3. 3. Reg. 75.

But at this day the Law is cleer, that he in remainder shall have an action of Wast, F: N: B: fol: 207. but these Books prove that the Writ of Wast ought to be Ex divisione, non ex assignatione.

Mich. 6 Caroli.

Case. Words.AN action of the case was brought for these words: Thou art a Theef, and hast stoln one Passions Lamb, and marked it and denied it: And upon Not guilty pleaded, and Verdict for the Plaintiff: Serjeant [Page 111] Ashley moved in Arrest of Iudgment, because that it is not shewn whose Lamb, for Passions is no word of any signification without the name of Baptisme. And the Court was of opinion that the Count was good, for it had been sufficient to call him Theef, and then the subsequent matter and words aggravate, and contain matter of Felony: And it is a generall Rule, that when the first words are actionable, the latter words which toll the force therof, ought to be such as do not contain Felony.

Babbington versus Wood.

BAbbington brought an action of debt against Wood, upon an Obli­gation of 600 l. the Condition was, That if Wood resign a Bene­fice upon request, that then the Obligation should be void.A Cond [...]tion to resign a Benefice up­on request, And the Condition was entred; the Defendant demurred, and Iudgment in Banco Regis pro querente: And upon Error brought, Iudgment was affirmed in the Exchequer Chamber; for this Obligation is not void­able by the Statute of 14 Eliz. which makes Obligations of the same force, as Leases made by Parsons of their Gleaves, viz. Per non resi­dency; And it doth not appear by the Plea of the Defendant, that it was not an Obligation bona fide which might be lawfull: As if a Pa­tron which hath a Son, which is not yet fit to be presented for default of age, and he present another with an agreement, that when his Son comes to the age of 24. years, be shall resign it, it is a good Obli­gation. And this Case, viz. an Obligation with Condition to resign had been adjudged good in the case of one Jones, An: 8 Jac. And the Councel said, that he who is presented to a Church is married therto,Jones Case. and it is like as if a man who hath married a Wife, should be bound to be divor­ced from her, or not co-habit with her, these Conditions are void. But these resemble not our Case.

Wilson versus Briggs.

WIlson brought an action of Account against Briggs, as Bayly of his Mannor in the County of Cambr. Tryall of an action of Ac­count upon receit in two Counties. and also as Bayly to ano­ther Mannor in the County of Suff. And this action was brought in the County of Cambr. and found for the plaintiff, and Iudgment to account, and found in the arrearages, and Iudgment given. And now the De­fendant brought a Writ of Error, & Iudgment was reversed because it was mis-tryed, for it should be tryed at the Bar by severall Ven. fac. to be directed to the severall Sheriffs. First it is agreed, that a writ of Ac­count against one as Bayliff of his Mannor, cannot be brought in ano­ther County, but only in that County where the land lies, vi. 8 E. 3. fol: 46. Fitz. Acc. 93. see there that two actions of Account brought against one for receit in two Counties. And there it is said, that it being upon a day, that he may have one writ, and count in the two Counties. But to that it is said, that that proves not but that he might have two Writs wherby it might be awarded that he should answer. But in this case it was resolved, that it was a mis-tryall, for it ought to be by two Ven. fac. and tryed at Bar, and it is not aided by the Statute of 21 Jac: cap: 13.

Trin. 8 Car. Purnell versus Bridge, Hil. 6 Car. Rot. 1235.

Fine to two, and the heirs of one to the use of them two in fee. HEnry Pernell brought Replevin against William Bridge, Robert Bridge, and two others: William Bridge plead Non cepit, and the other made Conusance, and upon Demurrer the case was such.

Richard Braken was seised in Fee of sixty acres of arrable Land, and forty eight acres of Meadow and Pasture, wherof the place in which, &c. was parcell; And he the sixth of Febr., An: 18 Eliz. by Deed gran­ted an Annuity or Rentcharge of thirteen pounds six shillings out ther­of, to Edward Steward in Fee, payable at the Feast of Saint Peter, or within eight and twenty daies after: And if it be arrear for eight and twenty daies after the said Feast, that then he forfeit for every Fine after forty shillings, with a clause of Distresse as well for the said Rent, as for the said forty shillings, if it shall be arrear.

Edward Steward seised of the Rent died, wherby it descended to Ioan Iermy Wife of Thomas Iermy, Daughter and Heir of the said Edward Steward, and they being seised therof in the right of the said Ioan, An. 41 Eliz. in Crastino animarum levied a Fine of the said Rent to Robert Brook, and Isaac Iermy, and to the Heirs of Robert, which Fine was to the use of the said Robert and Isaac, and their Heirs for e­ver: by force therof, and of the Statute 27 H 8. they were seised of the said Rent in Fee, and after the said Robert died, and Isaac survived, and is yet seised Per jus Accrescendi, and for Rent arrear, &c. and for the said forfeiture of forty shillings, they avow, wherupon the Plaintiff de­mur.

And upon Conference between the Iudges, they all agreed, that by this Fine which granted to Brook and Jermy, and the Heirs of Brook, to the use of Brook and Jermy, and their Heirs, that they were in by the Statute of 27 H: 8. and were Ioyn-tenants of the Rent, for other­wise there would be such a Fraction of the Estato, that Brook should be in by the Common Law, and Jermy by the Statute, and that is not according to the Statute: And it appears that the use was limited by the Fine it self, and not by any Indenture.

And the principall reason is upon the Statute of 27 H: 8. which is, where two or three are seised to the use of one or two of them, Cestui que u [...]e shall be adjudged to have such Estate in possession, as they have in use. Iudgment pro Defendent.

Memorand. That in this Term a motion was made for the filing of a Writ of Entry in a Common Recovery suffered by Sir John Smith upon a Purchase, and all was well done, and the Writ made and sealed,Filing of a Writ of En­try many Termes after but by the negligence of the Attorney it was not filed; and it was Unanimo assensu resolved that it should be filed, and that after the death of Sir John Smith, for it is but to perfect a Common Recovery which is a Common Conveyance: And this was denied in the case of [Page 113] one Allonson, for there Error was brought and Diminution alledged, and a Certificate that there was no Writ by the Custos brevium.

And it is ordinary to file these Writs at any time within a year, without motion.

Mich. 8 Car. Harbert versus Angell.

CHarles Harbert Plaintiff, against Angell, Case. Words. in an action upon the case of words, which were, Thou art a Theef, and hast cousened my Cosin Baldwin of his Land: And after Verdict for the Plaintiff, it was moved in Arrest of Iudgment, that the words would not main­tain action.

And at the first, Iustice Crawley and Iustice Vernon were of opini­on, that the former part of the words were actionable, and that they were not extenuated by the subsequent words; but they agreed, if it had been, for thou hast robbed, &c. it would be otherwise. And the Lord Heath and Iustice Hutton were of a contrary opinion, and that the words And, and For, are in this case to have one effect, and declare what Theef he intended: And they relyed on Birtridges case, Coke lib: 4. And upon this diversity of opinion the Lord Heath conferred with the Iustices of Serjeants Inn in Fleetstreet, and we with the Lord Ri­chardson, and they all agreed, that the subsequent words explained his intent and meaning, viz. the Robbery and cousening of the Land: And Verba sunt accipienda in mitiori sensu; As to say, Thou hast stoln my Corn, it shall be intended Com growing: so in Arrowes case,Arrowes case. 19 Jac. Thou art a Theef, and hast stoln ten Cart-loads of my Furzes; adjudged not actionable, for it shall be intended of Furzes growing.

Ram versus Lamley.

RAm brought an action upon the case against Lamley, and declared, That wheras he was Bonus & legalis homo, and free a suspitione feloniae, the Defendant maliciously want to the Major of Linn, and re­quested a Warrant of him (being a Iustice of Peace) against the Plaintiff for stealing his Ropes: The Major said to him, Be advised and look what you do, the Defendant said to the Major, Sir, Words. I will charge him with flat Felony for stealing my Ropes from my Shop, Quo­rum quidem verborum, &c. And after Not guilty pleaded, and Ver­dict for the Plaintiff, Hitcham moved in Arrest of Iudgment; And the Court unanimously resolved that these words being spoken to the Iustice of Peace when he came for his Warrant, which was lawfull, would not maintain an action, for if they should, no other would come to a Iustice to make complaint, and to inform him of any Felony.

Mich. 8 Car. Lamb versus West. Trin. 8 Car. Rot. 333.

SIr John Lamb Knight, brought Replevin against Thomas West, and count,Replevin. that the Defendant took his Beasts at Blisworth, in quo­dam loco vocat. Thorny Close.

The Defendant avowed as Bayliff to Sir William Sheapherd, and derived Title by a Lease to Michael West for ninety years, if he and Thomas West the Defendant,Demand of Rent. and one Hutton West should so long live: And the said Michael, 19. Aprilis, An: 20 Jac. granted a Rent-charge of ten pounds per annum to the said William Shepheard and his Execu­tors, out of the place in which, &c. for the residue of his Tearm, to be paid at the house of Thomas West in S. And the said Mich. granted, that if the Rent he arrear by eight and twenty daies, being lawfully deman­ded at the said house, he should forfeit twenty shillings for every day, that it should he arrear, and if it be arrear by six months, being lawful­ly demanded at the said house, then he might distrain for that, and the Nomine poenae: And for Rent arrear by a year after demand due, &c. he makes Conuzance; And therupon the Plaintiff demurred gene­ralls.

And after many Arguments at Bar, the Iustices delivered shortly their opinions severally, and all argued that it is a Rent-charge: and then a Distresse is incident to a Rent-charge, which is in its crea­tion a Rent-charge; as well as if one makes a Lease for life or years, rendring Rent, and if it be lawfully demanded, then it shall be lawfull to distrain for it. None will deny, but that he may distrain for this Rent, without any demand: And the diversity is between a Penalty and a Rent, for if the Avowry had been for any part of the Nomine poe­nae, then without actuall demand at the day he could not have distrain­ed therfore, vide Maunds case, Coke lib: 7. fol: 28. And all agreed, that when a Distresse is for Homage, if it be once tendred and refused, he cannot distrain without demand, vide Litt: 34. 21 E: 4. 6. 16, 17. 7. E: 4. 4. That where a Rent is reserved upon a Lease, and an Obligation to pay it, yet that alters not the nature of the Rent, 22 H: 6. a good case. Rent is reserved upon a Lease, and an Obligation to perform Cove­nants, that extends not to the Rent reserved, but if it be to pay the Rent, then it shall be demanded, there it is said, that if Rent be ten­dred and refused, the Lord or Lessor may distrain without demand. It was agreed, that if Rent he reserved at the time of the Distresse, and it be refused, and a Distresse taken, that is Tortious, 30 Ass: 36. 20 H: 6. 31. 48 E: 3. 9. 2 H: 6. 4.

And in this case it was said, that Reddenda singula singulis, that the demand shall be used when the Penalty of the Rent comes in question, and not for the Rent: And though it be reserved payable at another place, thal changeth not the Rent, but it is issuable out of the Land and distrainable upon the Lands.

And lastly, it hath been divers times adjudged, that the Rent is paya­ble [Page 115] upon the Land, 1 Jac: Rot: 1818.Nich and Lang­ford. Skinner and Amery. Borman and Bower. In Replevin between Nich and Langford.

Trin: 16 Jac. Rot. 954. Between Skinner and Amery, vide before be­tween Crawley and Kingswell.

Trin: 3 Car: Rot: 2865. Rent reserved payable out of the Land: And although that the Iudgment is by confession after demurrer, yet it was for the reason afore recited.

Iudgment for the Defendant

The Lord Audley's Case.

JUratores pro Domino rege super sacramentum suum present. Quod Martinus Dominus Audley nuper de Fountell Gifford in Comitatu Wilts. & Aegideus Broadway de Fountell Gifford praedict. in Comitatu praedicto generosus, timorem Dei prae oculis suis non habentes,Indictment for Rape. sed In­stigatione Diabolica moti & seducti vicessimo die Junii, Anno regni Do­mini nostri Caroli dei Gratia Angliae, Scotiae, Franciae & Hiberniae, fidei defensoris sexto, Apud Fountell Gifford praedict. & Comitatu praedicto vi & armis, &c. in & super Annam Dominam Audley Uxorem praefati Domini Martini Audley in pace Dei, & dicti Domini Regis ibidem Ex­istent. insult. fecerunt. Et praedictus Aegidius Br. praedictam Annam Do­minam Audley vi & armis, contra voluntatem ipsius Annae ad tunc & ibidem violenter & felonicae rapuit, ac ipsam Annam ad tunc & ibidem contra voluntatem suam violenter & felonice carnaliter cognovit, con­tra pacem Domini Regis nunc coron. & dignitat. suas & contra formam statuti in hujusmodi casu edit. & provis.

Et ultim Juratores praedicti dicunt super sacramentum suum praedict. Quod praedictus Martinus Dominus Audley praedicto vicesimo die Ju­nii, An. sexto supradicto Apud Fountell Glifford praedictam, in Comi­tatu praedicto felonice fuit presens, auxilians & Confortans, abettans, procurans, [...]adjuvans, & manutenens praedictum Egidium Br. ad feloni­am praedictum in forma praedicta felonice faciend. & perpetrand. contra pacem dicti Domini Regis nunc Coronam & dignitatem suas, ac contra formam statuti praedicti.

Pasch. 7 Car. Risam versus Goodwin. Mich. 5 Car. Rot. 2512.

IN a Writ of Scire facias brought by William Risam against John Goodwin and Richard Peat, Administrators of Thomas Cammon, the Case was such.The Court of Common Bench award not execution upon a Judg­ment given in grand Ses­sions in Wales.

The now Plaintiff William Risam recovered against Thomas Cam­mon a hundred pounds Debt, and ten shillings Costs, at the Grand Ses­sions holden at Carm [...]rthen, and execution awarded, and Nulla bona returned. And upon Surmise that the said Thomas Cammon was dead, and that the now Defendants had taken Letters of Administration, a Scire facias issued against them, and Nichil returned, and after a Writ of Execution, and that afterwards being returned by the Sheriff of the County Nulla bona testatoris, a Writ issued to the Sheriff of the County of the Town of Carmarthen, who returned Devastavit: And because that the now Defendants had not Goods within the said County, or within the County of the Town of Carmarthen, or Jurisdiction of the Grand Sessions, the Plaintiff procured a Certiori to the Justices of the Grand Sessions, who certified the Record to the Chancery, and by Mittimus it came to the Common Bench, with directions Quia executio judicii praedicti adhuc restat. faciend, Mandant quod, at the prosecution of the Plaintiff, Vos fieri faciat. de more, & secundum legem & consuetudi­nem regni nostri Angliae fuit faciend. Wherupon a Writ of Scire facias was awarded to the Sheriff of Hereford against the said Defendants, to which they appeared: And after many Imparlances they demurred up­on the insufficiency of the Writ of Scire facias.

And this case was argued by Berkley for the Plaintiff, and by Henden for the Defendant. And the Cases put by Berkley were F: N.B: 243. a. b. 39 E. 6. 3 & 4 Ass: in ancient Demesne, and for the Damages sur­mised, that he had nothing within ancient Demesne, 21 E, 3. 49. 21 H: 7. 33. 8 Ass: 27. 30 H: 6, 7. 3 H: 4. 15. 1 Justitutes 59. in Frankalmoigne: That Wales is parcel of England 1 E: 3. Jurisdiction 45. 22 H: 6. 58. 47. E: 3. 6. 3. E: 3. Quare Impedit 38. 35 H: 5. 30. 19 H: 6. 12. & 52. vide the Statute of 34 H: 8. for Wales and Writs of Error.

Henden argued to the contrary; and his first reason was,

• 1. That this Court of the great Sessions is an inferiour Court.
• 2. The Record it self comes not but a Transcript.
• 3. The Statute of 34 H: 8. hath appointed the Execution, and that should be pursued.
• [Page 118]4. This Innovation is perillous, and never put in practice. And he relyed upon the diversity. When Iudgment in a peculiar inferiour Court, comes into the Kings Bench, or into this Court by Writ of Error, and is affirmed, then the Superiour supplies it, and add strength to the Iudgment: But when Iudgment is given in a Court of a Corporation, and that is removed by Certiorari, and sent by Mit­timus, that shall not be executed there, vide 45 E: 3. 25. Formedon in London, vide 14 E: 3. Tryals 23. 15 E: 3. Record 35. New Book of En­tries, the last case in Writ of Error, vide 8 E: 3. 10. 26 H: 6 8. 3 H: 6. 16. 7 H: 4. 8. 14 H: 4. 25. H: 5. 11. And he relyed upon 21 H: 7. 35. and the case of 39 H: 6. 3, & 4. and the case of ancient Demesne, 7 H: 9. 18. 37 H: 6. 16. Dyer 369.

And upon this Case the Iudges consulted and agreed, that the Writ was insufficient: And so Iudgment was given against the Plaintiff. But it was said, that upon this Iudgment so sent to this Court, the Plaintiff might bring an action of Debt, and so have exe­cution: But to make this Court an Instrument to serve an inferiour Court, and to extend their Iurisdiction by this way, as it were by a Windlace, it is not lawfull.

Hil. 7 Car. Napper versus Sanders. Pasch. 6 Car. Rot. 1148.

IN an Ejectione firmae brought by Robert Napper against Henry Sanders, upon a Lease by Deed indented, made by John Napper and Elizabeth his Wife, and Francis Sanders, upon Not guilty plea­ged,Remainder where it shall be said Con­tingent. the Iury gave a speciall Verdict, wherupon the Case was such.

Margaret Sanders seised in Fee, makes a Feoffment to the use of her self for life, without impeachment of Wast, and after to the use of the Feeoffees for eighty years, if one Nicholas Sanders and Elizabeth his Wife should live so long, and if the said Elizabeth survive Nicho­las her Husband, then to the use of the said Elizabeth for life, without impeachment of Wast, and after the decease of the said Elizabeth, to the use of Postumus Sanders, Son of the said Nicholas and Elizabeth in tail: And for default of such Issue, to the use of Elizabeth, Wife of the said Iohn Napper and Dorothy Sanders, and the said Francis Sanders one of the Lessors, and to the Heirs of their bodies, remain­der to the right Heirs of Margaret the Feoffor: And there was a clause in the said Indenture, that the intent of the Estate for years to the Fe­offees was, that the said Elizabeth Sanders might have the profits, and not Nicholas her Husband, who was a Prodigall. Margaret Sanders dies, and Dorothy dies without Issue, the Feoffee enter, Elizabeth Sanders dies, Nicholas is yet alive, and Posthumus dies without Issue, Iohn Napper and his Wife, and the said Francis entred and were pos­sessed, untill the Defendant as Son and Heir of the said Margaret, en­tred and ousted them. Et si super totam Materiam, &c.

[Page 119]And the sole question was, whether the remainder in tail to Posthu­mus, and the remainder in tail to Elizabeth, and Francis were contin­gent or executed: And it was resolved by all the Court, that the re­mainders were not contingent in the Estate for life which was to come to Elizabeth Sanders, the Wife of the said Nicholas, but were vested presently. And it was agreed, that the Estate for life, if she survive her Husband, was contingent; and when that had hapned, being by way of Limitation of an use, it shall be interposed when the Contingent happen, as in Chudleys case, Coke lib: 1. fol: 133. a Feoff­ment to the use of the Feoffor for life, and after his death to his first Son which shall be afterwards born, for his life, and so to divers: And afterwards to the use of I. D. in tail: It is resolved that all the uses limited to-persons not in Esse are contingent, but the uses to per­sons in Esse vest presently, and yet these contingent uses when they happen vest by interposition, if the first Estate for life which ought to support them be not disturbed. And in this case it was a good Estate for life in Margaret: And then gives the remane in the Feoffees for eighty years,, if Nicholas and Elizabeth Sanders so long should live, and if Elizabeth survive Nicholas, then to Elizabeth for her life, and after her decease to Posthumus in tail, and after his decease to the said three Daughters in tail, so that there the Estate for years determines upon the death of Elizabeth, and so also the Estate for life to Elizabeth which was contingent, determines by his death.

And the Lord Darbies case, a Feoffment to the use of Edward, The Lord Derbies case. late Earl of Derby in tail, and then to the use of the two Feoffees for eigh­ty years, if Henry late Earl of Darby should so long live, and after his decease to Ferdinand, and to the Heirs Males of his body, and for default of such Issue, to the use of William now Earl of Derby. And it was adjudged that the remainders vest presently: And this possibility that Henry might have over lived the eighty years, will not make the remainders contingent. And in a Suit which was at Lancaster be­tween Farrington and another,Farringtons case. upon a speciall Verdict there found a­bout 8 Jac. and many times argued at Serjeants Inn, it was afterwards adjudged a good remainder and not contingent; And the same case in this Court upon a Scire facias for two have executor of certain Land, for debt recovered against the Earl of Derby, which Land was intai­led by the same Conveyance, &c. brought against the Earl of Bridgwa­ter and his Wife, one of the Co-heirs of Ferdinand, Earl of Derby, was adjudged in this Court, vide Borastons case, Coke lib: 3. fol: 20. 14 Eliz: Dyer 314. Lovies case, Coke lib: 10. 27 H: 8. 24. 38 E: 3. 26. 5 E: 3. 27. 30. E: 3. Collthurst and Bemchins case was urged, that the remain­der limited to B. for life, and after that C. hath married Ja. S. then to the use of C. in Fee, this is contingent, and is collaterall; And this case is not like to that.

And after Argument at Bar, this Term (it being argued before that the Lord Richardson was there, who was of the same opinion) we all concurred, and Iudgment was entred for the Plaintiff.

Pasch. 8 Car. Metcalfe versus Hodgson.

Case. MEtcalfe brought an action upon the case against Hodgson and Wharton late Sheriffs of the City of York, and count, That wheras time out of memory, &c. there hath been a Court of Record hol­den before the Sheriffs of the said City, upon the Bridge called Ous­bridge, An action of the case lies not against a Sheriff, for taking of in­sufficient Bail being Iudges. and that in this Court, every one having cause of action arising within the said City, had used to commence any action for debt there, and that the Defendants being arrested by their bodies, the Sheriffs had used to take Bayle of them, and to let them to Bayle, finding suffi­cient sureties, and that the Sheriffs are also, and time out of memory, have been Keepers of the Gaol there. And wheras the Plaintiff had brought an action against one Smith, and recovered, the now Defen­dants (being Sheriffs) had taken insufficient Bail of him, &c. And upon Not guilty pleaded, it was tryed before the Lord chief Baron at York, for the Bail are supposed to be taken at Wakefield, but that was not alledged, for any thing which appears, to be out of their Iuris­diction: And the Iury contrary to the direction of the Lord chief Ba­ron gave Verdict for the Plaintiff.

And after many motions in Arrest and praying of Iudgment, it was resolved, that this act was done by them as Iudges, and for this Iudiciall Act no action lay: And though that the Bail by the event ap­pear to be insufficient, yet there is no remedy by action upon the case, it being without fraud or corruption, and not for reward.

And this Case differs nothing from the ordinary cases of all insuffi­cient Bailes, taken by any of the Kings-Bench, Common Bench, or Ex­chequer: And that they having two Authorities in una persona, it shall be taken to be done by that Authority by which they have power to vail, and that is as Iudges of the Court, and not as Gaolers, for by this they have no power to Bail any, and in this capacity they are only sub­ject to an escape, vide Dyer 163. Error cannot be assigned in that which the Court of Common Bench do as Iudges, vide 12 E: 4. 19. Conspiracy lies not for that which a Iustice doth as Iudge of Record.

Mich. 8 Car. Hickes versus Mounford. Trin. 7 Car. Rot. 514.

Replevin.REplevin brought by Walter Hickes against Simon Mounford, and others, the Defendants make Conusance as Bayliffs to Sir John Elliot, Executor of Richard Giddy: And that the place contain twenty acres, and was parcell of the Mannor of Trevelun: And that Thomas Archbishop of York, and Cardinall, and three others were seised of the [Page 121] Mannor wherof, &c. in Fee,Traverse of a day. and the third of June 11 H: 8. by Deed inrolled granted to King H. 8. a Rent-charge of fifty Marks per annum out therof in Fee, with clause of Distresse, and convey the Rent by discent to E. 6. Mary, and Elizabeth, who by her Letters Patents gran­ted it to Richard Giddy for life, who made the said Sir John Elliot his Executor, and died, and for such a summ arrear they Avow, &c.

The Plaintiff pleaded in Bar to this Avowry, and confessed the Seisin of the said Arch-bishop, and the others, and said, that the said Arch-bishop and the others, the fourth of June, 11 H: 8. enfeoffed Peter Edgecombe in Fee of the said Mannor, who conveyed it to Richard Edgecombe Knight, who entred, and licensed the Plaintiff to put in his Beasts, which he did, and that they were there, untill by the De­fendants distrained, abs (que) hoc, that the said Arch-bishop and the others, the aforesaid 3. June, 11 H: 8. granted the said Rent to the said King and his Heirs, Modo & forma prout the Defendants alledged, Et hoc para­tus est verificare.

The Defendants say, that the Arch-bishop and the others granted the Rent to the King modo & forma as they had alledged, and Issue therupon, and the Iury found.

That the said Arch-bishop and the others 11 H: 8. recovered this Land against Sir Peter Edgecombe, and it was to the intent of gran­ting the Rent to the King and his Heirs, and then of the recovery of the Mannor, out of which, &c. to the said Sir Peter Edgecombe in tail, the remainder to the King, and they being seised by their Deed, dated the third of June, 11 H: 8. sealed and delivered, which is found in haec verba, and that it was inrolled afterwards, viz. 7. June, granted the said Rent to H: 8. Et si super totam materiam, the Court adjudged it a Grant by Deed the third of June, 11 H: 8. then for the Defendant, &c.

And upon Argument at Bar, and conference had, we all declared our opinion, and agreed that Iudgment should be given for the Defen­dants.

The first reason was, that the Issue is joyned upon the Grant modo & forma, and not upon the day, as is offered by the Traverse, but up­on the Grant modo & forma: And the matter found is generally as is alledged, vide Littleton, Title Release, that modo & forma avoid and prevent the matter of day, and goes solely to that which is materiall: And by any thing which appears by the Verdict, there is no intervening matter after the third day, and before the seventh when the Deed was enrolled, and then it is a good Grant of the third of June, vide H: 7: 31. Then the speciall Conclusion found, which is contrary to Law, shall not conclude the Iudges to give Iudgment according to Law.

And so Iudgment was given for the Defendants.

Mich. 8 Car. Col. versus Wilkes.

SAmpson Cole brought an action of Debt upon the Statute of 2 H. 6. against Leonard Wilkes, Tryall at the Bar:Debt. Debt upon the Statute of the 2 E. 6. for Tithes. A Lease was made to two, they enter and occupy, and set not out their Tithes, Debt was brought against one of them, it lies not.

[Page 122]But here it was found, that one only occupyed the Land, and ther­fore the action well lies.

Sir John Ge­rards case.And a Case was shewn, Mich: 8 Jac. An action of Debt was brought upon this Statute, by Sir John Gerard against two Tenants in Com­mon, and it appeared that one of them set out his Tithe, and that the other afterwards took it and carried it away, and adjudged that the acti­on lies only against him which carried it away.

Pasch. 9 Car. Strilley's Case.

Amendment of the procla­mation of a fine.VPon motion made in this Court for the amendment of a Procla­mation of a Fine levied by Strilley of Lands in Nottinghamshire, Mich: 11 Eliz. The Proclamations endorsed by the Chirographer upon the Fine were well, but in the Transcript and Note of the Fine which is delivered to the Custos brevium by the Chirographer according to the Statute, the second Proclamation was entred to be made the twentieth of May, where it should have been the twenty third day of May, and that by the misprision of the Clerk: And it was moved that that might be amended.

And the Court was of opinion that it should be amended, for the In­grossement upon the Fine by the Chirographer is the foundation, and that being well it is sufficient Warrant to amend the other. And the Court was of opinion, that it was a good Fine without any amend­ment: But it being the misprision of the Clerk, it shall be amended, as in the case Coke lib: 8. Blackamores case.

The Proclamation made and entred before the Originall shall be amended.

And it was objected, that this Fine and Proclamations as they found in the Office of the Custos brevium, are exemplified under the Great Seal, and therfore by a Clause in the Statute of 23 Eliz: cap. 3. could not be amended after such exemplification.

To that it was answered, that that Statute extends only to Fines before levied, which should be exemplified before the first day of June, An: 1582. And the latter clause in the said Statute doth not extend but to Fines exemplified according to the said Statute.

And therfore it was awarded to be amended.

Pasch. 9 Car. Glasier versus Heliar.

Case. GLasier brought an action upon the case for words against Heliar, and shewed, that three Colliers being in an house in Sussex, were feloniously burnt in the said house, and shewed, that two or three men were indicted, convicted, and executed for the said Murther, the Defen­dant knowing therof, and intending to bring the Plaintiff in perill of his life,Words. as accessary to the said Murther, sayd to him, Thou didst [Page 123] bring Faggots a mile and a half to the burning of the Colliers: And af­ter Verdict for the Plaintiff, and motion in Arrest of Iudgment, it was adjudged that the words were actionable: For if a Mansion-house be burnt feloniously, to say, You brought fire to set in the Thatch of the house which is burnt, it is actionable.

Iudgment pro quaerente.

Smith versus Cornelius.

JOhn Smith Town-Clark of Southampton, Case. brought an action upon the case against one Cornelius an Attorney of this Court, and shew, that the Plaintiff was of good fame, and Town-Clark of the Major and Burgesses of Southampton, and was their Scribe, and had the custody of all Rolls, Pleas, and Certificates,Words. and other proceedings be­fore the Major and Burgesses in the Court before them to be holden: And the Defendant intending to draw him into Infamy, and to cause him to lose his Office, said to him, Thou hast made many false Certifi­cate to the Major and Burgesses in that Court, and the more thou stir­rest in it, the more it will stink.

And it was adjudged that these words are not actionable.

1. Because that it is not alledged that there was any Colloquium concerning his Office of Town-Clark.

2. Because that it appears not in the Count that the making of Cer­tificates belong to his Office, but only that he had the custody of them.

3. It might be false, and yet no blame to him, if he did know them to be false, or that he had made them false maliciously: And therfore Iudgment was given for the Defendant.

And this Case was moved again by Hitcham, the first day of Trinity Term next, And then Iudgment was affrmed.

Hil. 9 Jac. Edwards versus Laurence. Trin. 9 Car. Rot. 2488.

RAchel Edwards brought an action of Trespasse against Richard Laurence for breaking of her Close.Trespasse.

The Defendant in Bar to the new Assignment, plead,Traverse of Seisin. that before the time of the Trespasse supposed to be done, one Francis Tayler was seised in Fee of the Tenements wherof, &c. and so being seised died, wherby it descended to Francis his Son and Heir, who being seised therof 8 Car. demised it to the Defendant for two years, by vertue wherof he entred, and gives colour to the Plaintiff by a Grant made to him by Francis the Father, where nothing passed therby, and so iu­stifie.

The Plaintiff replyed, that long before Francis Tayler the Son had any thing, one Francis Tayler Grand-father of the said Francis was sei­sed [Page 124] in Fee, and before the time of the Trespasse supposed, viz. 8 Jac: in consideration of a Marriage to be between the said Francis his Son, and the Plaintiff, for her Ioynture made a Feoffment therof to the use of the said Francis, and Rachel the Plaintiff, and to the Heirs of the said Francis, upon the body of the Plaintiff begotten, the remainder to the Heirs of Francis in Fee, and shewed the marriage, and that by force of the Statute of 27 H: 8. they were seised ut supra is limited, Absque hoc, that the aforesaid Francis Tayler the Father of the afore­said Francis the Son, died seised of the Tenements aforesaid with the Appurtenances, de nova assignat. in his Demesn as of Fee, Modo & forma prout praedictus defendens superius allegavit, & hoc paratus est verificare, &c. unde, &c. wherupon the Defendant demurred.

Vide 3 H: 6, Brook Traverse, 30 H: 6, 7. Brook Traverse 359. In Tres­passe the Defendant plead his Freehold, the Plaintiff plead the dying seised of his Father, and that he is Heir and entred, and that the De­fendant disseised him, the Defendant traversed the Disseisin, and not the dying seised of his Father, and good, vide the said Book of 30 H: 6. 7. by Prisot, if I in Assise plead that my Father died seised in Fee, & that I entred as Son and Heir to him, and was seised untill by R. dissei­sed, who enfeoffed the Plaintiff, upon whom I entred, here the Dissei­sin is not traversable, but the dying seised, vide 33 H: 6. 59. Wangford put this case, In Assise if the Defendant plead that his Father was seised and died seised, and give colour to the Plaintiff, the Plaintiff ought to traverse the dying seised, and not the possession of the Father, which is the cause of the dying seised.

Vide 30 H. 6. fol: 4. Entry in nature of an Assise, the Defendant plead that W. was seised in Fee, and enfeoffed him, and give colour, the Plaintiff replies that W. was seised in jure Uxoris, and that he had Issue, and his Wife died, and he was Tenant by the Curtesie, and made a Feoffment, sans ceo, that W. was seised modo & forma, and Issue taken, and there it is said, that the Issue is well taken.

This case was adjudged for the Plaintiff, because that no dying seised is pleaded, so that it might be traversed, but with a Sic scisitus obijt. Also the matter only traversable here, is the seisin in Fee mo­do & forma, for by the Replication Seisin joyntly with the Plaintiff, and to the Heirs of the body of the said Francis, with a Fee-simple in him, is confessed, and that is good with the Traverse.

Memorand. That this Case was moved by Serjeant Hitcham, Trin. 10 Car. And Serjeant Hedley moved for the Defendant, and vouched 5 H: 7. 7. and the Record was read, and all the Court agreed that it was a good Traverse, And that Iudgment should be given for the Plaintiff.

Pasch. 10 Car. Dawe versus Palmer.

Case. JOhn Dawe Plaintiff against William Palmer, in an action upon the Case, and count, that wheras he was a Fuller, and had used the Trade of Falling, and therby acquired his livelyhood, and was of good Credit,Words. &c. The Defendant said of him, Trust him not, for he [Page 125] owes me a hundred pound, and is not worth one Groat: And at ano­ther day he said, He is a Bankrupt Rogue; And upon Not guilty plea­ded, the Iurors found for the Plaintiff, and gave entire Damages.

And it was moved in Arrest of Iudgment, that the first words were not actionable, and then the Iury having given entire Damages, the Plaintiff should not have Iudgment for any part, vide Osbornes case, Coke lib: 10. But in this case after many debates, it was resolved by the Court, that the Plaintiff should have Iudgment. For the first words are actionable at Common Law before the Statute, Trust him not, he is not worth one Groat. Go not to buy of I.S. (a Merchant) for he will deceive you. Of an Inne-keeper, Go not to such an Inne, for he is so poor that you can have no good entertainment. Of an At­turney, Use him not for [...]e will cousen you All these words are actio­nable. He will be a Bankrupt within seven daies.

And for the other words, That he is a Bankrupt Rogue, that is resol­ved Coke lib. 4. to be actionable: And it was a Case Pasch: 10 Car. in a Writ of Error brought in the Exchequer Chamber, upon Iudgment given in the Kings Bench, between Dunkin and Laycroft, Dunkin and Laycroft. for words spoken of a Merchant, who had been at Hamborow in partibus trans­marinis, and there h [...]d used the Trade of a Merchant and Factor. Thou (innuendo the Plaintiff) camest over from Hamborow a broken Mer­chant; And adjudged actionable, and so affirmed in the Exchequer Chamber. And upon all these Authorities the Court gave Iudgment for the Plaintiff.

Mich. 10 Car. Deanes Case.

DEane being robbed in an Hundred in Kent, brought an action upon the Statute of Hue and Cry, and a speciall Verdict being found, t [...] Dourt intended was,

If one be assaulted to be robbed in one Hundred, Hue and Cry. and he escape and flye into another Hundred, and the Theeves instantly pursue him, & rob him there, if the Hund. in which he was robbed should be solely charged.

And the opinion of the Court was, that it should; but upon reading the Record, this appeared not to be the Case. And the Court was in­formed, that the Sheriffs had taken the Goods of one in execution, who was not inhabiting within the Hundred at the time of the Robbery committed, but came afterwards: And the Court was of opinion that he was not chargable.

Mich. 10 Car. Knight versus Copping.

RObert Knight brought an action upon the case against Valentine Copping one of the Attorneys of this Court, & count,Case. That wheras one Edw. Loft had brought an action of debt for 30 l. against him: And therupon such processe was, that a non pros. was entred, & costs of 30 s. assessed for the now Plaintiff,An action of the case for [...] entring Judg­ment after non pros. the now Defendant being Attorney for the said Ed. Loft having notice therof, unduly and maliciously procured a judgment to be entred for the said Ed. Loft, against the now Plaintiff, & sued execution against him, wherby he was taken and imprisoned, untill he was delivered by a writ of Supersedeas.

[Page 126]The Defendant Protestando, that there was no such Iudgment for the said Edward Loft, against the said now Plaintiff, nor that he was taken in Execution therupon, for plea saith, that there is not any Record of the said Non pros.

The Plaintiff replies, that at the time of the said Iudgment en­tred for the said Edward Loft; And when the now Plaintiff was taken in Execution and imprisoned therupon, the said Iudgment of Non pros. against the said Edw. L. and the Award of Costs were in full force and effect: But that afterwards, viz. such a time, as well the said Iudgment de non pros. as the said Iudgment of thirty pounds Debt a­gainst the now Plaintiff were evacuated, wherupon the Defendant de­murred.

And it having been often debated by Hitcham for the Defendant, and Henden for the Plaintiff: And now upon Oyer of the Record and of the Iudgment, the Court gave Iudgment for the Plaintiff.

And the Lord Finch said, that this action upon the case is grounded upon two misdemeanours:

1. The procurement of the said Iudgment for Edw. L. after a Non pros. entred for the Defendant: And though the Iudgment was erro­neous, yet the now Plaintiff was vexed and imprisoned therby, which indeed is the cause of this action.

2. The taking therof unlawfully, when the first Iudgment de non pros. was in force, and the Plea of Nil tiel Record go only to one of the Causes: And admitting that there was never a Iudgment de non pros. but that the Defendant had unlawfully procured a Iudgment, and taken Execution therupon, and procured the Plaintiff to be ta­ken in Execution and Imprisoned, this is cause of action: And to that he hath not answered, and therfore he ought to have pleaded Not guilty to that which he takes by protestation.

Iudgment pro quaerente.

Pasch. 11 Car. Baker versus Hucking.
Adjudged B. Rs.

Tenant in tail and he in Re­version make a I. case Pro ut. aut. vic.TEnant in tail, and he in Reversion joyn by Deed in a Lease for life, he in Reversion devise the Land by his Will to one in Fee, and dieth, Tenant in tail dies without Issue, and the Heir of him in Reversion, and the Devises claim the Land.

And the sole question is, if this Lease be a Discontinuance, and it was adjudged a Discontinuance, and then the Devise void, for he had not a Reversion.

And the difference was taken, when Tenant for life, and he in Re­version joyn in a Lease by Deed (for without Deed it is first a Sur­render,Discontinu­ance. and then the Lease or Feoffment of him in Reversion) it shall be the Lease of Tenant for life, so long as he live, and after the Lease of him in Reversion, and yet they shall joyn in a Writ of Wast.

And in this case there is no question but if the Lease had been made solely by Tenant in tail, that then it were a Discontinuance, and the joyning of him in Reversion alters it not, for that amounts to nothing [Page 127] but as a Confirmation, and is not like to Bredons case, Coke lib: 1. fol: 76. Where Tenant for life, and he in remainder in tail levy a Fine, for every one there passeth that which lawfully he may.

And upon Argument it was adjudged, that it was a Discontinuance and not the Lease of him in Reversion, but his Confirmation.

Iustice Crooke differed in opinion.

Mich. 11 Car. Lashbrookes Case.

LEwes Lashbrook an Attorney of this Court, brought an action of Trespasse against I. S. for entring into his house and breaking his Close: And in the new Assignment he alledged the Trespasse to be in a house called the Entry, and in a house called the Kitchin, and in his Garden, and in one Close called the Court.

The Defendant as to the force, &c. and to all besides the Entry plead Not guilty; And as to his entry into the Court and Kitchin,A Warrant to four, and two of them exe­cute it. and the Tenements aforesaid of the new Assignment, he plead that he had brought an action against a woman for Trespasse, and had so procee­ded that he recovered, and had execution directed to the Sheriff of So­mersetshire, and therupon a Warrant directed to four speciall Bayliffs, to arrest the said Woman, and two of them at Minehead, in the Coun­ty of Somersetshire, arrested her, and carried her to the house of the Plaintiff in Minehead, being a Common Inn, and the Defendant en­tred into the said houses called the Entry and Kitchin, and the Te­nements aforesaid of the new Assignment, to speak to the Bayliffs, and to warn them to keep her safe: And as soon as he could he returned, wherupon the Plaintiff demurred.

And now Henden took two Exceptions, the first was,

1. That the Defendant had not pleaded to all the Closes, but that was over-ruled, for he justified in the tenements aforesaid of the new Assignment.

2. The second was, that the Warrant to the Bayliffs was to all, and not Conjunctim and Divisim, and therfore it should be by all, and not by two only.

To that it was answered and resolved, that when a Sheriff makes such a Warrant, which is for the Execution of Iustice, that may be by any of them, for it is Pro bono publico: And the very Case was ad­judged 45 Eliz: between King & Hebbs, Coke Littleton 181. b.

And Iudgment was given for the Defendant.

Hil. 11 Car. Davies Case.

DAvies an Attorney of this Court, brought an action upon the case for these words, If I list I can prove him Perjured: Words. And the opi­nion [Page 128] of the Court was, that they were not actionable, for there is not any Affirmative, that he was perjured, but a thing which is Arbitra­ry, and saies not that he would do it. Iudgment pro Defend.

Mich. 7 Car. Rot. 1097. Alston versus Andrew.

P [...]ter Alston Executor of Peter Alston, brought an action of Debt upon an Obligation of a hundred and twenty pounds against Wil­liam Andrew, The Obligor and the Obli­gee make the same person Executor. and Edward Andrew, and count, That the Defendants and one Francis A. became obliged to the Testator, &c. and that they did not pay it is the said Testator in his life, nor to the now Plaintiff, and one Francis Andrew Co-executor with the Plaintiff, who is sum­moned, and the Plaintiff admits to prosecute alone without the same Francis, &c.

The Defendants demand Oyer of the Obligation, which is entred in haec verba, and plead that Francis A. in the said Writing named, af­ter the making therof, made the said Francis Andrew and Barb. A. his Executors and died: And that the said Francis A. accepted the Bur­then of the Testament: And after the said Peter Alston the Testator made his will, and Constituted the Plaintiff and the said Francis his Executors, and died, Et hoc paratus est verificare, unde, &c. wherupon the Plaintiff demur.

Trugeon and Meron. Mich 2 Jac. Rot. 2663. Garret Trugeon Plaintiff against one An­thony Meron and others the Administrators of Benjamin Scrivin up­on a single Bill: The Defendants demand Oyer of the Bill, wherby it appears, that one John Simcocks was obliged to the said Trugeon joyntly and severally with the said Scrivin, Quibus lectis & auditis, the Defendants sayd, that the said Simcocks died intestate, and that the Administration of his Goods was granted to the now Plaintiff, who accepted the Burthen of the Administration, and Administred, the Plaintiff demurred, and Iudgment against the Plaintiff.

8 E: 4. 3. 21 E: 4 2. Lit. 264. b. 20 E: 4. 17. If the Debtee makes the Debtor and others his Executors, the Debt is discharged.

Mich: 9 Car. Banco Regis, Rot: 373. Anne Dorchester Executrix of Anne Row, Dorchester and Webb. Plaintiff, against William Webb, in Debt upon an Ob­ligation of five hundred pounds, the Defendant demanded Oyer, wher­by it appears, that the Defendant and one John Dorchester were obli­ged joyntly and severally in the said Obligation.

The Defendant plead in Bar, that the said John Dorchester made the Plaintiff his Executrix, who proved the Will, and had Goods suf­ficient in her hands to pay the said Debt.

The Plaintiff reply, that before the death of the said Anne Row the Obligee, she had fully Administred all the Goods of the said John Dor­chester. Demurrer and Iudgment for the Plaintiff.

And in this case it is not shewn, that the said Francis and Peter, or any of them proved the Will of the said Obligee, or that they admini­stred his goods, or that they had any goods of the Obligor to administer, at the time of the death of the Obligee, as it ought to have been shewn: And the said Francis Executor of the Obligee, and also of the Obligor, [Page 129] refused to be Executor to the Obligee, and never Administred, and never meddled with the Goods of the Obligee, and so the Debt is not released in Law, as by the said Case and former Iudgment appears.

This case had been often argued by Serjeant Hedley, and of the o­ther part by Serjeant Hitcham, and affirmed, that once Iudgment was given for the Defendant, but it yet depends.

Trin. 12 Car.

MEmorand. Vpon Petition exhibited to the King by the Priso­ners of quality, which were in execution in the Fleet, Liberty may not be given to Prisoners by force of a Habeas Corpus. Kings Bench, and Marshalsey, to have liberty in the time of Infection, and for preservation of their lives, to have liberty by Writs of Habeas Cor­pus to go into the Country, upon security to be given to the Warden and Marshall for their return. The King (out of his great care of their safety) referred their Petition to the Lord Keeper Coventry, and that he, with the advice of the Iudges, should consider by what way it might be done: And the eighteenth day of June we attended the Lord Kee­per at Durham-house: And therupon conference and consideration of a former Resolution which was at Reading in Mich. Term last, before the said Lord Keeper (where were present all the Iudges, besides my self.) That these abusive Habeas Corpus were not lawfull, and that the Warden and Marshall were then called and warned, that they should not suffer their Prisoners to go into the Country, as they had used to do, by colour of such Writs: This which followes was sub­scribed.

Mich. 14 Car.

MEmorand. That 28. Aprilis, 14 Car. Iustice Hutton argued in the Exchequer Chamber in the Case Adjourned thither, upon a Sc [...]re facias by the King against Hampden for Ship-money, in which he was of opinion, that as well for the matter as for the form, upon divers exceptions to the pleading, Iudgment should be given against the King.

Afterwards, viz. 4. Maij. Thomas Hanson Batchelor of Divinity, and Parson of Creake in Northamp. came to the Court of Com­mon Bench (Iustice Hutton, and Iustice Crawley then being there giving Rules and Orders) and said,Words against Justice Hutton. I accuse Mr. Justice Hutton of high Treason, for which he was committed to the custody of the War­den of the Fleet by Iustice Crawley; and after by the direction of the King, he was indicted in the Kings Bench, and convicted and fined to five thousand pounds to the King: And Iustice Hutton preferred his Bill against him there, and recovered ten thousand pound Dame­ges.

Lord Digbies Case.

MEmorand. That in the Parliament holden primo Car. It was resolved by the Iudges upon conference concerning the Lord Digby, That when any Peer shall be proceeded against for Treason, that ought to be by Indictment, and that being done,Where tryall of Treason by the Statute of 3 Jac. cap. 4. shall be, and how. then the King is to appoint a Peer to be Steward for the time, and then to proceed to Arraign him, or otherwise to transmit this Indictment by Certiorari to the Parliament, and there to proceed, vide 10 E: 4. 6. 1 H: 4. 1. vide Coke Lit: fol: 261. b. Or otherwise to prefer a Bill in the Parliament, which ought to be passed by both houses, and then it is Attainder by Parliament, and so it was done, 5 R: 2. 54.

But in this Case, it being that part of the Treason objected against him, was supposed to be done Oust le mere, and made Treason by the Act of 3 Jac: cap: 4. that cannot be tryed but by Indictment, to be taken before the Iustices of Assise, and Gaol-delivery, where the party was taken, or before the Iustices of the Kings Bench, and Law, Custome, Statute, or usage to the contrary notwithstanding; And so it cannot be tryed by the Statute of 35 H: 8. cap: 2. in what place or Shire that the Kings Bench shall be, for this Statute had for this Treason prescri­bed a speciall form of Tryall, and the place where he shall be taken shall be expounded, the place where he is misprisoned, as upon the Sta­tute of Soldiers: And he which is charged to have two Wives living, shall be tryed in the place where he is taken, which is the place where he is imprisoned, vide 2. Inst. 49.

Trin. 12 Car.

Quaeries con­cerning Ali­ens. QUaeries upon the Statutes of 1 Riz. cap: 9. 1 H: 7. cap: 2. 14 H: 8: cap: 2. the Decrees in the Star-chamber made 20 H: 8. and confir­med 21 H: 8. cap: 16. 22 H: 8. cap: 8. 32 H: 8. 16. and other Statutes con­cerning Aliens, and the Statute of 5 Eliz: cap: 4.

1. Whether the Statute of 5 Eliz. cap: 4. doth repeal the former Sta­tutes concerning Aliens, taking Apprentices, Iourny-men, and Ser­vants.

2. Whether Aliens made Denizens, may use any handycraft with­in the Realm, otherwise then as Servants to the Kings Subjects.

Memorand. That on the seventh day of July, We met at Serjeants Inne in Fleetstreet (Mr. Attorney-generall being there) and We deba­ted the matter, and upon perusall of the Statute of 1 R: 3. cap: 9. and the other Statutes: And upon some mis-recitall of the Statute 1 R: 3. by the Statute 32 H: 8. cap: 16. And upon differences of the Printed Statute from the Parliament Roll, as was supposed, upon shewing of an old Book of Statutes, which was in French, and brought by my Brother Crook; and upon the intricacy of the Statute, We could not resolve on the suddain, upon these Questions at this time, nor un­lesse the Parliament Roll might be seen.

But upon perusall of the Statute of 5 Eliz: cap: 4. We all resolved and agreed.

That all Aliens and Denizens are restrained by the Statute of 5 Eliz: cap: 4. That they may not use any Handycraft mentioned in the said Statute,Resolves up­on the Statute of 5 Eliz. cap. 4. concerning Aliens. unlesse they have served seven years as Apprentices within this Realm, according to the provision of this Statute: This was set down in writing by Sir John Banks his Majesties Attorney Generall present: Sir John Bramston chief Iustice of England, Sir John Finch chief Iustice of the Common Bench, Sir Humphrey Da­venport chief Baron, Baron Denham, Iustice Hutton, Iustice Crook, Baron Trevor, Iustice Crawley, and Baron Weston, the other Iud­ges being absent, viz. Jones and Vernon.

Hil. 12 Car. Souser versus Burton.

ONe Widow Souser brought an action of the Case against Burton, for these words, Thou old Witch, thou old Whore, leave oft thy witching, or else thou shalt be hanged or burned, if I can do it. And upon Not guilty pleaded, and Verdict for the Plaintiff, it was moved in Arrest of Iudgment; And it seemed to Lord Finch, Hutton, and Vernon that the action lay not, without shewing that she did any act of Witchcraft, for which the pain of Pillory and Imprisonment for two years should be inflicted, and the second time Felony: And that the words,Words. Thou art an old Witch, or go away thou old Witch, are usuall words, and old Whore bears no action: And as to say, Thou shalt be hanged if I can do it, it is not possible that he could do it.

[Page 133]But Iustice Crawley doubted of it at first, because that it was alled­ged, that it had been adjudged in the Kings Bench, that an action lies for calling one Witch; But afterwards he said, that he had spoken with the Iustices of the Kings Bench of their reason, who said, that they adiudged no such thing, unlesse that he spoke further, that the par­ty had done any act of Witchcraft punishable by the Statute.

Hugles versus Drinkwater.

AN action of Account by William Hugles against Thomas Drink-water, for receit of eighteen pounds,In Account payment by appointment of the Plain­tiff, is no plea before the Au­ditors where the Issue was Ne unques re­ceivor. by the hands of one William Appowell, to the use of the Plaintiff, the Defendant plead Ne un­quer receivor per manus, &c. and found or the Plaintiff: And the De­fendant before the Auditors plead, that he by the appointment of Willi­am Appowell had paid it to one John Marsh for the Debt of the Plain­tiff, and therupon Demurrer. And adjudged a bad Plea, and against his former Issue: And the said Appowell by whose hands he received the said summ, had not any power to appoint the Defendant to pay it to John Marsh, to whom the Plaintiff was indebted; and if that had been pleaded in Bar, of the Account to have been done by the appoint­ment of the Defendant, it had been a good Bar, vide Dyer 29. 196. after ne unques receivor, and the truth was that he had been Receiver, and had paid it over by the appointment of the party, and yet by this Plea be hath lost the advantage therof.

An. 2. Car.

MEmorand. That the 19. day of May, An: 2 Car. all the Iudges be­ing assembled at Serjeants Inn in Chancery Lane, by the com­mandment of the King, the Attorney Generall propounded,In what cases a prisoner, ar­raigned shall have Coun­cell. that the King would be satisfied by our opinion, Whether any person which is arraigned of Treason of Felony, ought by the Fundamentall Lawes of this Realm to have Councell; And We all una voce answered.

That when any one is indicted of Felony or Treason, or any other such offence, the party ought not to have any Councell, unlesse it be upon matter in Law, as where he demand Sanctuary, or plead any spe­ciall matter, and that is agreed by Stamford, fol. 151.

Also this extends as well to Peers of the Realm, as to others, vide 1 H: 7. 23. and the 9 E: 4. 2. and so it was agreed by all, that although the party shall have Councell in an Appeal of Murther, yet if he be non-suited, and the party be arraigned upon the Declaration, then he shall have no Councell.

Also it was resolved, that when the party who prosecute, suppose that the Grand Iury will not find the Invictment, and therfore requires that the Evidence should be given publickly to the Iury at Bar (which is sometime done) yet the party who shall be indicted, shall not have Councell. And the Attorney Generall was commanded to report our opinion to the King: And this hapned to be demanded upon the gene­rall inconvenience that might after ensue in the Case of the Earl of Bristoll, to whom the King had allowed Councell.

Mich. 3 Car.

MEmorand. That the fifth of November, at Serjeants Inne in Fleet-street, there assembled the Lord Hide, Lord Richardson, Lord Walter, Iustice Doderidge, Baron Denham, Iustice Hutton, Iustice Jones, Resolves con­cerning Soul­diers. Iustice Whitlock, Iustice Harvey, Iustice Crook, Iustice Yel­verton, and Baron Trevor, to consider of a Case which was propoun­ded, which was;

One receives Presse-money to serve the King in his Wars, and is in the Kings Wages, and with others is delivered to a Conductor, to be brought to the Sea-side, and with-draweth himself and runneth away without license.

The Question was, if it were Felony.

And time being given before to advise concerning it, all agreed be­sides Yelverton and my self that it was Felony.

And the sole question is, if a Conductor be a Captain within the 7 H: 7. cap: 1. and the 3 H: 8. cap: 5. And they said, that it is not necessary that he should be such a Captain as is to lead and command them in the War, or that hath skill to instruct; But such as hath the leading of them by agreement, between the Deputy Lievtenants, and them, and that ought to provide for the Billeting of them, and to carry them to the place of Randesvous. And one part of a Captain is to conduct, al­though that Conduxit be properly to hire a Souldier, yet this name Conductor, with whom it is so agreed by Indenture to conduct the Soul­diers, is a Captain, within the intent of those Statutes; and if it should not be so, these Statutes (which are for the defence of the Realm) shall be of little force.

But it was agreed by them, that if these Conductors (which are so called of late times) be hired to carry them but to one place, and there another Conductor to receive them, this is not within the Statute; And it ought to be such a Conductor that can give license upon just cause to proceed. It was said, that they used to send Captains into the Country, but then they were so chargable to the Country, and full of disorder, that upon complaint of the Iustices of Peace, about 43 Eliz. this course was invented, viz. That the Deputy Lievtenants should provide for them that were pressed, for Coats and Conduct, and they sent their Souldiers to a place appointed to be delivered to certain per­sons, whom the Queen appointed, to receive them. And it was said, that though this Case as it is propounded might be cleer, yet there are many Circumstances which ought to be proved, and that are loft to the discretion of them before that he should be tryed.

It was unanimously agreed, that if one takes Presse-money, and when he should be delivered over, he withdraw himself, that is not Fe­lony, although he is hired and retained to serve.

But my Brother Yelverton & I were of opinion, that this new name newly invented, is not Captain within these penall Statutes, which ought to be taken strictly, vide Plowden 86. that penalties which con­cern life shall not be taken by equity, but if they be within the words of the Statute, then they shall: As to kill his Mistresse, is within the words, for Mistresse is Master.

Another reason was, that the Statutes provide punishment for Cap­tains which want of their number, or which pay not their Souldiers [Page 135] within six daies after they have received their pay, upon pain of forfei­ting all their Goods: And the Statute did not intend other Captains in this point, then was in the former and latter part therof.

But admitting that a Conductor is such a one to whom the Souldiers are delivered by Indenture with all Covenants usuall, viz. To pay to them their Wages, and to convey them to their appointed place, and that he may give license to depart; yet they agreed, that it is the bet­ter and clearer way that they should be made Captains, and so named in the Indentures, for the King may change the Captain at his plea­sure, and then it should be no question.

It was agreed, that 7 H: 7. cap: 1. extends only to them who are re­tained and pressed to serve the King upon the Sea, or upon the Land beyond the Sea; And the Statute of 3 H: 8. cap: 5. adds only the Land here: And the Statute makes departure without license from the Captain Felony, and the Statute 3 H: 8. without license from the Lievtenant: And the Statute of 7 H: 7. makes the tryall to be in the County where they shall be taken before the Iustices of the Shire, as they may try other Felonies within their Commission: The Statute of 3 H: 8. makes their tryall before the Iustices of the County, where they are taken; and this being a new Felony and made tryable against the Common Law (which appoint tryals by Iurors of the County where the Fact is committed) and appoint a speciall Iudge, viz. Iusti­ces of Peace, that is only tryable before them, and not before Com­missioners of Oyer and Terminer, who cannot try any thing, but that which is done in the same County: But this, if all be not done in that County where they are taken, makes it tryable only before the Iusti­ces of Peace of the County where they are taken.

In this point all were not resolved, but required longer-time, vide 2 Inst 56.

Sir Richard Champions Case.

A Writ of Covenant is prosecuted, Jan; 23. returnable Oct. Purisicat. A Fine of Oct. Puris. where the Caption was, Feb. 14. 1. The Dedimus potestatem is tested 23 Jan: the Iudge certifie the Concord takes Febr. 14. which is two daies after the Term, at which time the Writ of Covenant is not depending, the Fine is haec est fina­lis Concordia facta in Oct. Purif. And after it is recorded in 15 Pasch. and yet adjudged a good Fine, vide the Statute of 23 Eliz. 3. Dyer 220. b. Carels Case.

Mich. 4 Car. Jones versus Powell.

JOhn Jones Plaintiff, against James Powell Defendant, in an action [...] on the Case for a Nusance, count, That the Plaintiff, 10. August, 1 Caroli, was, and is, and for forty years last past, hath been possessed for divers years yet during, of a Messuage,Nusans 1. in which he and his family did by the time aforesaid dwell: And by all that time hath been Regi­ster to the Bishop of Gloc. and kept his Office there, that the said De­fendant the tenth day of August, and ever since hath held in possession another house over against the Plaintiffs; And they being so possessed, [Page 136] the Defendant the said 10. of Aug. erected a Brew-house, and a Privy in the said house, and burned Sea-coles in the said Brew-house, so that by the Smoke, stench, and unwholsome vapors coming from the said Coles and Privy, the Plaintiff and his family cannot dwell in the said house without danger of their health. Not guilty pleaded, Ver­dict for the Plaintiff. The Plaintiff prayeth Iudgment, and doth of­fer for Authorities in this Case.

Smith and Mopham.4 Ass. 3, 4 E: 3.37. 5 E: 3.47. new Book of Entries, fol: 19. in 5 Jac. between Smith and Mopham, an action upon the case for erecting a Tan-fat, with averment of corrupting the Aire and water, to the an­noyance of the Plaintiff, and adjudged for the Plaintiff after Verdict.

Coke lib: 4. Aldreds case pleaded in new Book of Entries, fol: 106. an action of the case for erecting a Hogsty, Ad nocumentum aeris ad­judged.

22 H: 6.14. by Newton, an action upon the case lyeth expresly.

Blande against Mosely. Trin. 29 Eliz Bland against Mosely, an action of the case for stop­ping Lights in London, adjudged a void Prescription, to build so high that the Neighbors lights are therby stopped in a City.

Old Book of Entries, fol: 406. in the Edition 1596. action upon the Case brought for annoying a Piscary with a Gutter that came from a Dye-house. 1.

And there an action brought against a Dyer, Quia fumos foeditat. & alia sordida juxta parietes querentis posuit, per quod parietes putridae devenerunt, & ob metum infectionis per horridum vaporem, &c. ibid. morari non audebat.

13 H: 7.26, An action lyeth against a Glover, because he with a Lime-pit so corrupted the water, that the Tenants departed.

F. N. B. 185. b. A Writ lyeth to the Major of a City to cleanse the Streets from filth, wherby infection might grow.

By which cases it appeareth, that although Sea-cole be a necessary Fuell to be used, and that Brew-houses are necessary, yet the Rule in Law is, Sic utere tuo, ut alienum inon laedas: And Chimneys, Dye-houses, and Tan-fats are also necessary, but so to be used, that they be not prejudiciall to their Neighbors.

And in this Case the Iury found that this new Brew-house and Pri­vy was maliciously erected to deprive the Plaintiff of the benefit of his Habitation and Office, and that the Plaintiff was hereby damnified, as in the Declaration is alledged.

And upon Conference and Consideration of the Case, all the Iudges did concur that Iudgment should be given for the Plaintiff.