THE REPORTS OF THAT REVEREND AND LEARNED JUDGE, SIR RICHARD HUTTON KNIGHT; Sometimes one of the JUDGES of the COMMON PLEAS. Containing many Choice Cases, Judgements, and Resolutions, in points of LAW, In the several Reigns of King JAMES and King CHARLES; being written in French by his own hand: AND Now faithfully Translated into English according to ORDER. Major haereditas venit unicuique nostrûm a Jure & Legibus, quam ab ●is, a quibus illa bona relicta sunt. Cic. pro Caerin. LONDON, Printed by T. R. for Henry Twyford, and Thomas Dring, and are to be sold at their Shops in Vine-Court Middle Temple, and at the George in Fleetstreet, near Cliffords-Inne, 1656. COURTEOUS READER, THese REPORTS of that Famous and Learned Judge, Sir RICHARD HUTTON, were intended long ere this to have been exposed to public View, as they were Originally penned in FRENCH by his own hand; but now (in obedience to a late Act of Parliament) they are faithfully rendered into ENGLISH: And may be of great use and benefit to the Studients and Practisers of the LAW of these Nations. This just Judge (as the greatest man (once) of this Nation was pleased to call him) was sometimes Contemporary with the Lord HOBART; By reason whereof, though they may seem to meet sometimes in Cases, yet they part many times in the Points thereof, and the Arguments thereupon; CICERO and ROSTIUS together make one incomparable Man. And here our Learned Author appears, not to justle the Chief Justice out of his place, but to continue (as he was upon the Bench) a friendly Associate, and a Learned Assistant. THE NAMES OF THE PRINCIPAL CASES contained in this BOOK. A. A Andrews and Hacker 3 Agars Case 10 Allaboyter and Clifford 29 Andrews Case 30 adam's and Fleming 34 Allen and Swift 46 Aris and Higgins 65 Aleston and Andrew 128 B. Blands' Case 18 Bishops Case 22 Boonton and the Bishop of Rochester 24 Big and Malin 27 Brook and Groves 28 Bagshaw and Walker 34 Blackburnes Case 36 Bridgland and Post 44 Bullen and Jevis 52 Bawtry and Scarlet 63 Blemhasset and Humblestone 65 Bickner and Wright 71 Beverley and Power 79 Baker and Johnson 106 Bill and Lake 106 Babbington and Wood 111 Baker and Hucking 126 C. Combs and Inwood 1 Cole and Allen 10 Crawley and Kingswell 13 Conesbies' Case 22 Cardinals Case 29 Coppledick and Tansey 31 Coney and Coney 32 Castilion and Smith 35 Clerk and Wood 39 Cartright and Underhil 42 clanrickard's Case 43 Curl and Cook 51 Chittle and Sammon 55 Crane and Crampton 80 Clotworthy and Clotworthy 82 Crocker and Kelsey 84 Chidleys' case 89 Chapman and Chapman 90 Chichley and the Bishop of Ely. 96 Conghams' case 98 Cook and Cook 110 Cole and Wilkes 121 Champernons case 135 D. DOrrell and Andrews 6 Drewry and Fitch 16 Darcy and Askwith 19 Davies case 42 Dough and Palmer 124 Deans case 125 Davies case 127 Digbies case. 131 E. edmond's case 20 Eire and Banister 24 Easington and Boucher 26 Egerton and Egerton 28 Empson and Bathurst 52 Edwards and Laurence 123 F. FLetcher and Harcot 55 Flight and Gresham 76 Farrington and Arrundel 82 Franklyn and Bradell 84 Farrington and Cagmer 98 Freeman and Stacy 109 G. GIbbs and Davy 8 Green and Harrington 34 Griggs case 59 Goldenham and Some 71 Glazier and Heliar 122 H. HArding and Bodman 11 Herd and Baskerfeld 15 Hall and Woollen 39 Hord and Cordery 49 Hawkins and Cutts 49 Howell and Auger 60 Hickson and Hicson 69 Hitcham and Brook 75 Hearne and Allen 85 Howard Sir Charles 86 Hartap and Cocks 88 Humbeton and Buck 89 Hilton and Paul 93 Holt and Sambach 96 Harbert and Angel 113 Hicks and Mounford 120 Huttons case Just 131 Hugles and Drinkwater 133 I. IUrden and Stone 18 Jennings and Pitman 63 Jones and powel 135 K. KInd and Amery 23 King and Bowen 44 Knight and Copping 125 L. Leygh and Pain 9 Lamb and Thompson 40 Lightfoot and Brightman 54 Lindleys' case 70 Laycon and Barnard 81 Lincoln the Earl 87 Lamb and West 114 Lashbrookes' case 127 M. MAson and Thomson 38 Mayes and Sidley 46 Meredith and Bovill 58 Metholl and Perk 73 Mackerney and Ewrin 101 Medcalf and Hodgson 120 N. NOrris and Staples 5 Napper and Sanders 118 P. PIes case 35 powel and Ward 41 Pitt and Chick 45 Parker's case 56 Pool and Reynold 57 Pleydell and Gosmore 67 Potter and Brown 72 Peto and Pemmerton 94 Paston and Utber 102 purnel and Bridge 112 R. SIr Walter Rawleys case 21 Reyner and Waterhouse 27 Rugles case 37 Rud and the Bishop of Linc. 66 Ram and Lamley 113 Risam and Gooding 117 S. STeward and Bishop 2 Shaw and Tayler 4 Swain and Holman 7 Speak and Richard's 11 Stone and Roberts 13 Smith and Stafford 17 Staffords case 20 Smith and Lindsey 32 Smith and Boucher 33 Shirley and Underhill 41 Suggs and Sparrow 47 Sherwills' case 51 Stevens and Oldworth 91 Sandford and Cooper 95 Starkey and Tayler 104 Shervin and Cartwright 109 Strilleys case 122 Smith and Cornelius 123 Souler and Burton 132 T. TIppin and King 44 Treherne and Cleybrook 68 trevor's and Michelborn 77 Townley and Steele 78 Turner and Hodges 101 Treford and Holmes 108 U. UVedall and tindal 77 W. Wolf and Heydon 30 Wentworth Sir Tho: 42 Wilson and Stubbs 45 Walrond and Hill 48 Whitguift and Eldersham 50 Wades case 81 Winsmore and Hobart 87 Wolf and Hole 92 Watand Maywell 104 Wilson and Briggs 111 Whittington and Earl of Derby 37 Y. YOung and Young 92 THE NAMES OF CERTAIN CASES Cited, Obiter in the PRINCIPAL CASES. A. Albanies' case 35 Ashburneham and Skinner 72 Alephs' case, Sir William 107 Arrows case 113 Arrowsmiths' case 83 B. BAker and Hall 3 Bedford and the Bishop of Exeter 4 Brownes case 9 Belcher and Hudson 17 Burnell and Brook 48 Beddinfeilds' case 78 Baker and Willoughby 105 Borman and Bower 115 Bland and Moseley 136 Brooks case 14 Bosdens case 23 Bedforne and Dandy 25 C. CAndish and Savill 7 Coppleston and Langford 23 Craddock and Wenlock 26 Coniers case Crachfords case 97 Capulets case, Sir Arthur Charter and Hunter 14 Couper and Andrews 58 D. LOrd Derbies' case 119 Dunking and Leycroft 125 Dorchester and Webb 128 E. EWer and Moyle 44 F. FLeet and Harrison 26 Farrington's case G. GEorge and Whitlock 14 Greenwood and Beckett 76 Gillinghams' case 95 Gerard's case, Sir John 122 Gonard and Dennet 83 Godhow and Bennet 83 Gittings and Redserne 13 H. Hodge's and Balwin 81 I. IOhnson and Barker 35 Johnson & Atewood 76 Jone's case 111 K. KEldriche's case 35 M. MIldmore & Warlowe 52 Mills and Whitewood 105 N. NEwby and Sag 9 Nowel's case Nich and Langford 115 Nichols and Grandie 29 P. PEriam's case 26 Pell and Brown 60 powel and Vardoffe 76 Potmans' case Parker and Parker 84 R. REdforne and Dandy 24 S. SMith and Mopham 136 Skinner and Amery 115 Sabud and R.W.L. 26 Stepney and Wolf 42 Stanley and Buddens case 52 Somerford and Beaumount 77 Specot and Shere 91 Simpsons' case 92 Shudsouth and Fernell 107 T. TImberly and Calverley 47 Tadcaster and Hallowell 47 Thompson and Green 105 Trugeon and Meron 128 W. Wild and Woolf 41 Wolley and Bradwell Wrotheys Case, Sir George Walker and Worsley 83 Walcot and Hind 14 PASCH. 15 JACOBI. Combs versus Inwood. THE first day which I sat at the Bench, after the day in which I was sworn, Ejectione suma. A Conve●ance delivered to be enroled, and yet not in●●lled, shall be accounted a Record. i. e. Thursday the twenty second of May; A jury was at the Bar from the County of Surrey, in an Ejectione firmae, brought by Combs 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 seized 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 original 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 Rend 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 until 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 enrolled, yet it is a sufficient Record to entitle the King, and it is a Record by being brought into Court, and there received to be enrolled. 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● Inn, and it was adjudged a good conveyance; and in this case the jury 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 Cattles, the Defendant pleaded not guilty, and the jury found for the Plaintiff, and Damages to thirty pounds: And it was moved in Arrest of judgement by Sergeant John Moor, that the Action doth not lie, for the words do not affirm and Deed, or Act, or Offence, but that he was in prison upon suspicion 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 Calendars are, such a one for stealing of a Horse, such a one for Murder, Vide Coke lib: 4. he is detected for Perjury, is not actionable; And to say such words of a justice 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 Nowel's case, and judgement was given that the action will not lie. 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 thereto requested after the marriage, Request, where it shall not be alleged. 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 judgement, that he had not shown any particular request; but yet judgement was affirmed for the Plaintiff, for this action is grounded upon the promise, which imports Debt, and not upon any collateral matter, which makes it a duty by the performance of a collateral Act upon the request. Trin. 15 Jac. Resolved upon the Statute of 3 H. 7. Cap. 2. Upon divers Assemblies at Sergeants Inn of all the judges 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 deflowering 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 general, 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 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 Petticoat, 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, etc. and doth it not, this is not Felony, and this rests only upon the Preamble; than 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 lie upon this Statute, and all the Precedents 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 Martial. And 26 Eliz. Doughties Case, Doughties case. Petition was made to the Queen by the Heir to make a Constable and Martial, but she would not. Admitting that the King get a Commission of the Office of a Constable and Martial, whether the King may have any remedy before them by Indictment, or information by the Attorney general. Mich. 15 Jac. Andrews versus Hacker. AN Assize of Darrein Presentment was brought by Andrews against Hacker, and the Earl of Salop, Assize. and against the Archbishop of York for the Church of Gothur in the County of Nottingham; the Assize was brought to the Bar, and when the jury appeared, the Archbishop 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 Assize shall be taken only in the Common Bench, vide Mag: Char: cap: 13. Assize of Darrein presentment, abate by a Quare ●●pedit. then the Archbishop making default, and the Assize being awarded against him by default, if the other Defendants plead to the Assize, yet the Assize shall not be presented, because an Assize shall not be taken by parcels, and therefore a Resummons shall be awarded against the Archbishop, 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: fol: 30. That if he against whom an Assize of Darrein presentment is brought, brings a Quare impedit, the Darrein presentment shall abate: And the Statute of West: 2. cap: 5. says, it may be in the Election of one, whether he will have an Assize of Darrein presentment, or Quare impedit, ergo he cannot have them both. And if an Assize of Darrein presentment be brought, and after that a Quare impedit for one avoidance, the Assize shall abate, for the Quare impedit is higher in his nature, that is, for the right, and for the possession. And justice Warburton vouched 10 Ed: 3: Statham in Darrein presentment 3. If a man shall have a Quare impedit, and also an Assize 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 until 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 Assize should abate. Mich. 14 Jac. Rot. 3297. Shaw versus Taylor. Wigorn. Replevin. Where the Lord shall 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 Bailiff to Sir Thomas Gervas', because that one Richard Shaw was seized of an House and divers Lands, (of which the place where, etc. was parcel) in his Demesn as of Fee, and them held of the said Sir Thomas Gervas', as of his Manor of Northfield, by Fealty and Rent of twenty pounds, and rendering and paying after of every Tenant (dying thereof seized) one Heriot, and alleged Seisin, and that he died seized: And that for one Heriot so due, and not delivered, he distrained in the place in which, etc. as within the Fee. The Plaintiff plead in Bar to the Avowry, and takes the whole Tenure by protestation, and for Plea says, that the said Richard Shaw at the time of his death had no Beasts, whereof a Heriot might or could be rendered, upon which the Defendant demurs. 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 casual thing if he have it, unless the Custom or Tenure be to have the best Beast, or such a sum: And if he had conveyed it away, and so prevented him by any fraud, than the Statute of 13 Eliz. had provided remedy, but where there is nothing of any such thing, which may be rendered 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 showing what thing in certain, vide 3 Eliz: Dyer 199. A Heriot is Quaedam prestatio, etc. 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 tendered to a thing not alleged, for in the Avowry he made not mention of any beast, but generally of one Heriot, which is not certain; And therefore it was awarded that the Plaintiff should recover, and should have a return, etc. and Damages. Pasch. 14 Jac. Rot. 907. Norris versus Stapes. Goldsborough. Berk. RObert Norris and Thomas Trussells Wardens, and the Society of Weavers, in the Burrow of Newbury, De●. 1. By laws. 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 therein might be taken away and avoided, etc. did grant to all Weavers within the said Town to be a Body Politic, by the name of the Wardens and Society, &c: as before, and to have perpetual 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 thereto belonging within the same Burrow, 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 Laws, and the benefit of the Forfeitures; And that no other person, born within or without the said Burrough, shall exercise the Art of weaving within the said Burrough, if he shall not be admitted thereto 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 justices, or three of them, or before both the justices of Assize in their Circuits, upon pain of forfeiting forty pounds: And show 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 Laws 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 justices, 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 thereby, unless 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 Burrow for five years before the making of the said Ordinance, or shall be admitted thereto by the Wardens and Society, upon pain of forfeiture for every month twenty shillings. And they further show, that after the said Ordinance made and confirmed 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, etc. 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, etc. 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 judgement, 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 judgement against the Plaintiffs. And Lord Hobart in Hil: 15 Jac, declared, that we were all of opinion that judgement should be given against the Plaintiffs: And he repeated the Case and the reasons of this judgement, because the Ordinance was, that none should use the Trade of Weaver, nor have any Loom in the Town, unless he had served, etc. before the making of this Ordinance, so that all Apprentices which serve after shall be excluded, unless 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 principal 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 Capital Message, Manor, or House called Causton, within the Parish of Dunchurch in the County of Warwick, and all the Stables, etc. in Causton aforesaid. The Defendant protesting that the Rent was not behind, for Plea says, that before any Rend arrear the Plaintiff entered into several 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 judgement, that the Venire facias should be of the Parish only, and not of Causton, for Causton is not alleged as a Town, but the name of a house: And the Court resolved that the Ven. fac, was good, for Causton is alleged as a Town in the Parish of Dunchurch, and that by the addition and general words in the Demise, in which also there was an exception of part of the House as Manor-house at Causton aforesaid, so that the house is alleged 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 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, etc. 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 Swain Plaintiff, Brownlow. Dors. Wast. against Thomas Holman and Elizabeth his Wife, brought Waste, 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 waste, etc. The Defendants confess the Lease, death, and marriage as above, &c and say, that the said Holman and Elizabeth his wife, 2. Feb: 40 Eliz. surrendered 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, etc. The Plaintiff replies, and joins Issue upon the Surrender and Demise in manner and form, and the Issue was tried by a Venue which came from Westminster, and the jury found this special Verdict, viz. the new Lease made the third of Felic: in which it is recited that she had surrendered 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 jury 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 thereto, and held in claiming by the said Demise: And it was adjudged by the Lord Hobart, and others the justices, that the Plaintiff should have judgement. 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 therefore the Lord Hobart said, that if Feme Loesses 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, than the Lease for years 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 surrendered was void, the new Lease made 〈◊〉 consideration thereof is vein, for the Surrender which is the consideration, aught to be a good surrender of the former Estate: And therefore if Lessee for life of the Blemise of the King surrender conditionally, and the King reciting that he had surrendered all his Estate, makes a new Lease, this shall be intended an absolute Estate, for a conditional surrender within three years of the Lease, is not a surrender within the Act of 32 H: 8. 2. Another reason, because that the 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, than it had been questionable, for the Estate pass by Implication, viz. by a surrender in Law, by acceptance of a new Lease, as in the eighth Report of the Lord Coke, S. Savours Case, but there no Estate of the Husband pass, 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 joined, it is found against the Defendants, for it shall be thereby taken and intended of an actual surrender made by the Husband and Wife, and not of such a surrender which is operated by a subsequent act in judgement of Law, and the reason thereof 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 actual surrender: And by Warburton, if issue be joined 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 general 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 Bristol, And it was moved this Term in Arrest of judgement, that the words in Welsh did not signify 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 joined 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 forbidden one to use his company, it shall not be intended of the French Pox, and no Action lies: And judgement 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 Pain, Debt. which was with condition for the performance of an Arbitrement, which was of all Actions, Quarrels, etc. depending between them: The Arbitrators award that the Defendant should pay to the Plaintiff such a sum, Arbitrement of all Action until the day of the Awa●●. etc. for content and in full satisfaction of all Actions, Quarrels, etc. until 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 trespass after the submission, that is, until 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 until it be shown 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 Premises, etc. there the Arbitrators made an Award of divers particulars, and the Award was good, and he that will avoid it must show that there were other controversies, & that he gave notice of them to the Arbitrators, for they shall not be bound to arbitrate of more than they have notice of, Die: 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 therefore 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 sum 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 Sau. 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 until the third of September, and good; Brown's case. And this case was vouched to be between Barnes and Grenewell, Trin: 43 Eliz: Rotsie: 947. vide a case between Hilton and Brown, Trin: 5 Jacobi Rot: 1618. an Arbitrement was made general 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 than it is but Surplusage which shall not avoid the Award, though the Plaintiff hath mine recompense by the Arbitrators, In respect that the Defendant shall be discharged of trespasses until the making of the Arbitrement: And judgement was given 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 seized of the Town of Darton, in the County of Durham, and prescribe to have a Fair there and Toll, and for not payment thereof, etc. 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, etc. 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 aught 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 Trespass, vide 9 E. 4, 5. 19 H: 6.30.22 Then it was agreed, H. 6. 35./ 8. that when one takes a Distress 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 refusal to deliver, is good evidence to prove conversion, but if it be found specially it shall not be adjudged Conversion; and judgement 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 Distress is no Conversion. Hil. 15 Jac. Cobble versus Allen. Norf. Trespass. Cobble brought an action of Trespass 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 seized 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, etc. Issue joined 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 Packhorses over the said other parcels of Land in Barningham, unto the King's high way leading to the City of Norwich: And Issue was joined upon these two Prescriptions, and found for the Plaintiff: But it was moved in Arrest of judgement, 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 trial; but it was adjudged that the trial was good, for though that the proper use of a way is to some end, and that ought to be shown, yet if it be only that he had a way over the Closes of the new Assignment; and no place or end thereof 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 lie in B. and then if by one intendment the trial may be good, it shall so be intended. But when it appears that the trial 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 King's 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 judgement given for the Plaintiff. Harding versus Bodman. RObert Harding Plaintiff, against Bodman Defendant, Case. in an action upon the Case, recites, that whereas the Plaintiff brought an action upon the Case against one Lenning for calling of him, etc. the Defendant upon the trial, being produced for the Defendant as a Witness, gave evidence upon his Oath to the jury, Action upon the Case against one forgiving evidence. that the Plaintiff was a common liar, and so recorded in the Star Chamber, by reason of which Evidence (though the jury 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 judgement, 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 jury gave greater or less Damages for that or not: Also by this means every man which is produced as a Witness 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 liar, & that he was not recorded for a common liar, in the Star Chamber; And for these reasons the Plaintiff. Nil capiat per breve, etc. Trin. 15 Jac. Rot. 1968. Speak versus Richards. South. HUgh Speak brought an action of Debt against Edward Richards, Debt. for 523 l 17 s 8 d 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, whereupon the Plaintiff had two Sci. fac.'s to the Sheriff of Middlesex, Debt for money returned levied by the Sheriff. who returned Nihil, whereupon judgement 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 virtue of the said Writ, the said 523 l 17 s 8 d of the Lands and Chattels of the said Henry Paramour, parcel of the said Debt, and at 15 Mich. returned that he had levied the said 523 l 17 ●. 8 d parcel, etc. which sum he had ready at the day to deliver to the Plaintiff in part of satisfaction, etc. And that the Defendant (although often required thereto) refused to pay the said 523 l 17 s 8 d (by cause whereof this action accrued) nor brought it into Chancery, and to have the parties, etc. The Defendant as to three hundred and eight pounds, part thereof, pleaded Nil debet, to two hundred and fifteen pounds seventeen shillings eight pence, residue thereof, 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 receipt whereof, the same day the Plaintiff gave an Acquittance for the same (which he pleads) and thereby acquitted and discharged the Defendant, and demands judgement if against his own Deed of acquittance he shall be received to demand the said money, whereupon the Plaintiff demurred. And it was argued by Sergeant Richardson for the Plaintiff, and by John Moor 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 therewith, 22 E: 4.38. One vouched as Heir may be bound to Warranty by his Father, and if he bring an Assize 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 recital. 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 therein, than 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 receipt 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 general 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 enchanter, Case. and hath bewitched the Children of one Strong: And judgement for the Plaintiff; Words. For though Witch is a word of malice, and familiarly used to old poor women, and therefore 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 Bailiff to his Father, the Plaintiff confess the Tenure, but allege that at our Lady day (which was one day of payment) he was upon parcel of the Land, Rend 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 replied and (protestando that he made no such tender) for plea saith, that after that, and before the Distress, 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 prays a return, etc. and avers that the Plaintiff nor any other, neither at the time of the distress, nor at any time after offered to pay the Rent, whereupon the Plaintiff demurred; and it being argued by Hendon and John Moor, 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 personal 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 material, but if he had tendered it when the Distress was taken, the taking should be tortuous. 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 cozening Knave, and so I have proved him before my Lord Mayor, for selling me a Saphire for a Diamond, the Action does not lie: And by Manwood, if A. says of B. Thou art a cozening Knave, and hast cozened me of five hundred pounds, no Action lies, which the Court agreed. Banco Regis 30 Eliz. George versus Whitlock. HE is a cozening Knave, and cozened a poor man of a hundred pounds, and all the George's are cozening Knaves, no action lies, Hil. 30 Eliz, B. R. Walcot Plaintiff versus Hind. HE is a cozening Knave, and hath cozened me of forty pounds, adjudged no action lies: And upon Error brought in the Exchequer, judgement was affirmed; and it is said that our Law takes no notice what a Cozener is. Trin. 37 Eliz. Brooks Case. HE is a false Knave, and keeps a false Debt Book, for he chargeth me with the receipt of one piece of Velvet which is false, not actionable. Mich. 37 and 38 Eliz. Charter versus Hunter. THou art a Pilfering Merchant, and hast Pilfered 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 show 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 cozening woman, and hath cozened one of her Neighbours of four pounds; And it was alleged over, that she the Defendant would bring good proof of it, and adjudged that an action lies not. Trin. 13 Jac. Rot. 650. Herd versus Baskerfield. Brownl●w● Devon. WIlliam Herd Plaintiff, Replevin. against Richard Baskerfield in Replevin for taking two Cows at Brood, the Defendant makes Conuzance as Bailiff to John Dinham Esquire, and shows that Walter de la Therne was seized in Fee of twenty acres of Land, whereof, etc. And by his Deed (shown in Court) 12 E. a. granted a Rent-charge of two shillings out thereof to John Milleton and Walter Milleton, In Replevin, one makes Conusance & derive his Estate from one as Cousin and Heir, and shows not how. John Milleton dies, and Walter survived and died seized; and this Rent descended to one John Milleton of P. as Cousin and Heir to the aforesaid Walter, and he was seized in Fee; and one John Dinham was seized in Fee of one house and twenty acres of Land in Pensons, and by Deed (shown in Court) exchanged them with the said John Milleton for the said Rent; and Walter de la Therne being seized of the Land, out of which the Rent issued, attorned, and gave Seisin of the Rent to John Dinham, whereby he was seized in Fee of the Rent, and conveyed the Rent by three descents 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 shown how John Milleton is Cousin and Heir to Walter upon the descent. First, if it be good as this Case is, viz. That he claims not as Cousin 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 form. And this Case was argued at Bench briefly, in Trin. 16. And I was of opinion, because that this is the Conuzance of a Bailiff, and it is a descent in one blood, to which Dinham is a stranger, and because that a good Issue might be taken thereupon as it is alleged; And if it had been a case of Bastardy, the jury might have tryell it, therefore 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 showing 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 justice Winch agreed with me, but Warburton to the contrary, and argued strongly, that it was substance and was very material, 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 judgement given, because that it is not shown Comment. Cousin, vide 2 H: 5. 7. a good Issue, there is no such Ancestor, a general Demurrer confess not the matter, as in Debt upon a Bill, he plead payment and the Plaintiff demur, that Demurrer doth not confess 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 justice, and Interlocutery. The Statute takes not away form, but 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 be aided, and judgement for the Defendant. Sheriff aught to deliver the Moiety by meets and bounds. IT was argued by the Court that upon an Elegit the Sheriff ought to deliver the Moiety by meets and bounds, and if it be so that the Conuzor be joint-tenant, or Tenant in Common, than it ought to be so specially alleged 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 Sergeants of London, for saying, I arrest thee for Felony, and after not guilty pleaded the Plaintiff was Nonsuited: Costs upon Nonsuit 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 bear action, and therefore judgement shall be given Quod nil capiat per billam: And they vouched one Precedent 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 Nonsuit 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 than 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. Upon motion in Court by the direction of justice Warburton who had caused a jury to be drawn, by reason of the slenderness of the matter, and for avoiding the charge of a special Verdict; the Case was, A Copyholder was a Lunatic, and the Lord committed the custody of his Land to one which brought an Action of Trespass; Action brought by the Committee of a Lunatic which is a Copyholder. and whether it ought to be brought by him or by the Lunatic was the question. And the opinion of the Court was, that the Committee was but as Bailiff, and hath no Interest, but for the profit and benefit of the Lunatic, 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 Lunatic: And it was ruled in this Court, that a Lunatic shall have a Quare impedit in his own name, vide Beverlies case, Coke lib: 4. the diversity between a Lunatic and an Idiot, and H: 8. Dyer fol: 25. And though when Guardian in Socage (as it was adjudged) makes a Lease for years, his Lessee shall have an Ejectione firmae, yet there the Guardian hath the Interest, and is accountable therefore. 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 Manor hath not power to commit or dispose of the Copyhold of a Lunatic without special Custom, no more than a man shall be Tenant by the Courtesy, etc. 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. Suff. ANdrew Smith and Anne his Wife, Case. against Richard Stafford Executor of Jeremy Stafford in an Action upon the Case, the Plaintiff counts, that whereas 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 died, 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 jury found for the Plaintiff; and in Arrest of judgement it was alleged, that this intermarriage had extinguished the action, vide 11 H: 7. 4 21 H. 7. 30. Coke 8. 136. there in Sir John needham's case many cases are put, vide Hoes case, that a Release do not discharge Bail before judgement, for it is contingent, vide one judgement, Hil: 6. Jac. in the King's 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 shows that thereupon 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, etc. 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, etc. 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 principal case was a release of all Covenants until 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. 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 justice Winch and justice 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 itself creates. Trin. 6 Jac. Jurden versus Stone. Glocest. Ejectment 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 Manor 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●●● Frank 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 shall be the admittance of him in remainder: Also if the 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. Continual 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 Assizes for Barratry, or Sheep-stealing as George Bland was, Words. for George Bland was indicted the last Assizes 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 judgement, that it is not actionable, and so was the opinion of the Court, for it is not a direct affirmative: vide the case of Steward against Bishop, before fol. 1. And if one says, I suspect you for stealing my Horse. And judgement was given for the Defendant. Trin. 16 Jac. Darcy versus Askwith. Brownlow. Ebor. JOhn Lord Darcy of Ashton brought an action of Waste against Robert Askwith (now Knight) and John Marshal, Wast. and assign the waist in Woods, viz. In cutting down and selling two Oaks, four Ashes in a Close called Tisley Close, two Oaks in Parson's croft; one Ash in Pinder croft, and sixty one Oaks 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 Manor of Swillington to him for years, and also of the Mines, and justify the shrouding of the Trees to make Punchons', Poles, and Stakes, and other Utensils, in and about certain Pits called Cole-mines, in one of the Closes, without which the Defendants could no● dig and take Coals out of the said Pits; and aver employment about of the said Cole-mines, & justify 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 Coals, and they were necessary for the digging of Coals, and for supporting the Pits, and aver the Employment; And thereupon 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, etc. 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 Coals are the Inheritance, and the bettering of them is the bettering of the Inheritance. 3. For the profit of the Commonwealth, 14 H: 8. 18. 20 Eliz: Dyer 361. Altams case, Trench to make a Meadow the better is no waist, vide 22 H: 6. 6. digging of certain Loads of Gravel 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 Employment; 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 virtue thereof 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 waste, if it had not been by special words; And the digging of a Mine is an impairing of the Inheritance and a great benefit to the Loesses, and therefore if Lessee for years build a new house, if he cut Trees off the same Lands for the making thereof, it is waste, 17 E: 2. Fit: wast 118. And no more than one may make a Brick Kilne and burn Brick, or a Lime 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 and supporting of these Mines for Coals which they sell, vide 41 E: 3. 17. And so judgement was given for the Plaintiff. edmond's Case. MEmorand. That at the Assizes holden at Winchester in Lent, 15 Jac. one William edmond's 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 jury gave a special 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 edmond's then was and yet is the Servant and Apprentice of the said Richard, and that he than lay in another Chamber of the said house, remote from the Bedchamber of his said Master and Dame, and that there was a Door with a Latch at the Stairs foot of the said Bedchamber of the said Heydon, but none at the Stair-head being the entrance into the said Bedchamber 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 entered into the Bedchamber of his said Master, with an intent to murder the said Heydon, and that he did then and there with an Hatchet (with an intent to murder 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, etc. And this special Verdict was shown by the Lord chief Baron Tanfield, unto all the judges of Sergeants Inn in Chancery Lane, viz. justice, Warburton, Crook, Baron Bromely, justice 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 Sergeants Inn in Fleetstreet it was shown to Montague, Hobart, and Denham, which concurred. Mich, 16 Jac. Staffords Case. FAlse Imprisonment was brought by Sir John Stafford, the Defendant justify, Matter of Record tried by the Country. that Bristol is an ancient City, and that time whereof memory, etc. there hath been a Court holden there before the Sheriffs etc. and justify that there was a Plaint levied, and judgement, and that the now Plaintiff was taken in execution. The Plaintiff replied Quod non fuit aliqua querela levata, according to the custom, and requires this Quod inquiratur, etc. And it was tried at Bristol and found for the Plaintiff, and damages twenty six pounds. And it was moved in Arrest of judgement, that this being matter of Record, viz. the entry of the Plaint in a Court of Record, it shall be tried by the Record, and not by the Country. And it was adjudged that the trial was good, because that it is not merely 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 justices of England, whether a privy Seal was sufficient, it being directed to the justices of the King's 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 proceed against him being before Commissioners, they are delivered only into the Court of King's bench, or they might have remained in a Bag or a Chest, and no Roll made thereof, and so long time passing, it is not a Legal 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 etc. And upon this resolution a privy Seal came to the justices of the King's Bench, commanding them to proceed against him according to Law: And thereupon a Habeas Corpus was awarded, and Octob: 28. he came to the Bar, being brought by the Lieutenant, and there he was demanded of whether he had any thing to say why, etc. and there he shown, that the King had employed him as General 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-general said, that the King pardoned no Treasons by any Implication, but it ought to be by special 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 thereof (and so it was done in Lepu's case, as the Precedent was shown) 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 spoke 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 eternal life afterwards, etc. 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, Lineal 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, judgement for the Demandant: For it is but a lineal Warranty, and then without Assets it is no Bar, for though the eldest Son die 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 produced as a Witness in an action of Trespass, and deposed falsely: And upon Nil debet pleaded, the Plaintiff was nonsuit, Costs shall not be allowed upon a nonsuit in an action brought upon the Statute 5 Eliz. of Perjury. And whether the Defendant should have costs or no, was moved by Sergeant 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 personal immediately supposed to be done to the Plaintiff. The opinion of the Court was, that the Defendant should not have costs upon this nonsuit, 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 Trespass 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 Witness, and forty pounds against the Suborner, and so the Plaintiff if he had recovered, should not have had any costs, and therefore 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 Ecclesiastical Court by Mr. Watts, Prohibition: who had married Elizabeth the Grandchild of the Father of Sir Ralph, to which Grandchild 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, and upon payment an Acquittance under the hand and Seal of the said Watts was, etc. 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 Sergeant John Moor, and after Sergeant 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 us behind for the space of a month after any of the said Feasts, it being lawfully demanded, that he might distrain; and for Rend 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 shows for cause, that it is not shown that the Avowant made any demand before the Distress: And Sergeant 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 Mands 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 shown upon Demurrer; But the Court agreed that no actual demand was necessary to proceed the Distress in this case, but that the Distress 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 Distress 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 Distress, and the Distress was before demand; and upon demurrer it was resolved a good Distress 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 therefore because he was Simoniacus he refused him, and that the Church was then void, and so remained void, whereupon the Plaintiff had a Writ to the Archbishop 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' pass, 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 supreme Ordinary, vide Dyer 277. quaere. But in this case the Bishop which is the Defendant is bound by the judgement, and the Writ is, notwithstanding the claim of the Bishop, that he admit the Clerk; and the Bishop is but Servant, and aught to execute the process of the Court. It was urged by Sergeant 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, than he certifies the justices: And the Archbishop 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. etc. 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 principal Challenge, and thereupon 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 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, than it would be infinite. As a man ought to allege but one principal 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, unless 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 show 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 principal 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 , it is a principal challenge that a juror is within the Distress of John S. for the Title is to be tried: 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 judges) we take no notice thereof, 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 was in Issue: and vide 9 H: 7. 22. Cognizance as Bailiff to the Abbot of Ramsey, Challenge to the Array, because the Sheriff was within the Distress of the Abbot, and that was not a principal 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 principal Challenge, but aught to have concluded with the favour. All agreed that a Surmise which is for prevention of delay, aught to contain matter which is a principal Challenge, for no trial shall be of such suggestion, but by the denial of the Defendant or Confession: And by the opinion of Lord Hobart and justice Winch cest. dedire n'est peremptory to the Defendant, for his time of challenge is not till the jury 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 denial, where he says that the Sheriff is not favourable, but indifferent, there he shall never have a challenge for favour unless he shows cause of later time. As to the second Point, it is no principal Challenge, because it might be, that the Lessor had granted over the Reversion, or that the Defendant might be found Not guilty: And a principal Challenge ought to contain such matter, which (being so) the Law adjudge favourable; and in this very case two Precedents scil. judgements more strong than this case, Bedforne and Dandy. Hil: 44 Eliz: Rotsie: 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 Lessor and the Sheriff, etc. confessed, and thereupon 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 tried 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 judgement 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 Principal, and that being affirmed the other Defendants challenge the Tales. Mich. 16 Jac. Easington versus Boucher. Debt. Several Defendants in Debt upon a joint Contract may plead several plea●. EAsington brought an action of Debt upon a joint Contract against: Sir John Boucher, Turner, Bolder, and one other; Turner appear and tender his Law, Sir John Boucher and another plead Nile debent, and the other was Outlawed; and it was said, that he ought to have joined, but it was resolved by the Court that they may sever in Bars, but aught to join in Delatories; For otherwise if one which never bargained be joined in the action, he must put his matter upon their plead. And in Debt upon a joint Obligation, one may plead a Release, the other Non est factum, vide 48 E: 3. 21. and vide Precedents in this case according to this resolution, Sabud versus R●w. ●. Trin. 26 Eliz Rot. 821. Trin: 26 Eliz: Rotsie: 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 tried, and Venire facias awarded and found for the Plaintiff, Pe●iam & T.P. H. P & I.P. Hil: 41 Eliz: Rotsie: 455. John Periam and Margaret his wife, Executors of John Hart urought an action of Debt upon Emisset against Thomasin Phelpes Widow, Henry Pittard, and John Phelpes: John Phelpes was Outlawed, and judgement against Henry P. by Non sum informat. and Thom: P. plead Nil debet, Fleet and Harrison. Venire facias, and judgement respited quousque etc. and after trial the Plaintiff had judgement. Hil: 13 Jac: Rotsie: 841. Fleet brought an action of Debt against Ja: Harrison, and Isaac. Brook upon Emissent: And James H. waged his Law, & judgement against Isaac. Brook 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 Precedent it was agreed per Curiam that so it ought to be. Hil. 12 Jac. Rot. 3007. Reyner versus Waterhouse. Ebor. Case. JOhn Reyner brought an action upon the case against L: Walterhouse, Ven. fat. de d●versis villis. and declares, that whereas 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 whereas the Inhabitants of Long Leverseidge aforesaid, De tempore cujus contrarii memoria hominum; etc. used to have a common way as well for Footmen as for Horsemen, to go and ride from the said Town of L. to the Parish Church of Burstall aforesaid, on Lords days, and Festival days, and other convenient times to hear Divine Service within the said Church; and to carry bodies, etc. dying in the said Town, to the said Church to be interred, Modo & forma sequent. viz etc. and shows the way through divers Closes in Long Leverseidge, Little Leverseidge, and Gomersall, and over the Churchyard of the Church of Burstall, and from thence unto the Church aforesaid, and backward, etc. and show 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 judgement it was alleged that the Venire facias fuit de Gomersall tant. And the Venire facias was quashed per Curiam, and a new one awarded the L.L.G. & Burstall. Hil. 16 Jac. Bigg versus Malin. Big 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 allege 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 judgement, that the Plaintiff had not shown 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 Barley, the Defendant promise to pay 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 alleged 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 judgement for all, and execution only for so much as is found. And in this case the Plaintiff had judgement. 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 Nuisance, as of the Lands which was the Nuisance: View. And the View in this action is but for fifteen days. 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 entered 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 well at the fourth day as the day of Essoin, unless the Essoin be challenged, viz. an exception entered, and 2 H: 7. 4. takes a difference between a real Action, or Original 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. Cardinal's Case. Cardinal 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 judgement, Words. that it is not alleged that the Will is supposed to be forged. But by the Court, that was necessarily employed, and the Plaintiff had judgement. Pasch. 17 Jac. Allaboyter versus Clifford. Suff. 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 until 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 show, that the ninth day of December they awarded of and upon the premises, and arbitrated that the Defendant should pay to the Plaintiff fourteen pounds at two several days, and that upon the last day the Plaintiff should make a general release to the Defendant, and the Defendant likewise to the Plaintiff, and allege 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, quarrels, etc. 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 than 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 until 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. Upon a Habeas Corpus, one George Andrews was brought to the Bar, and upon a long return by the Mayor, aldermans, and Sheriffs of London, The Custom of London to give security for the payment of the Portions of Orphans, and upon refusal the Debtors are to be committed. of their custom concerning the Orphans of Freemen, 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 Freemen 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 until they give security; and that their customs were confirmed by Act of Parliament, An. 7. R. 2. William Andrews a Freeman having one Son and one Daughter by Emery his Wife died, this George Andrews a Freeman being Suitor to the Wife before marriage agreed, that if the Wife would marry him, she should dispose of two hundred pounds, etc. and he was bound in a Statute to permit and suffer her to make her Will, and dispose thereof; 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 City. Trin. 16 Jac. Wolf versus Heydon. London. Debt. THomas Wolf 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 administered 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 administered, 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, whereof 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, etc. made his Will and constituted John Talbot his Executor, Qui suscepit onus inde, and administered divers Goods as Executor, and after, viz. such a day, the said John Talbot made Benjamin Roblet his Executor, and died, and Roblet suscepit onus testament, and did administer, and demand judgement si actio, etc. The Plaintiff reply and confess that John Aldrich made John Talbot his Executor, and that he administered and made Roblet his Executor: But he says, that the said John Talbot did not prove the Will of the said John Aldrich according to the Ecclesiastical 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 john Aldrich, or to have any thing to do therewith: And thereupon the Defendant demurs, and judgement 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 temporal: 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 increasing of the credit, and for the enforcing 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, than 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 real and special 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 administered by John Talbot, nor by Armiger which was Administrator. Coppledick versus Tansey. Linc. 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 seized of the Advowson in Fee, and that it was holden in Socage; Trial where no such Town is pleaded. And that the said Francis so being seized devised it in tail, and entitle 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 judgement of the Writ: Sir Philip plead that there is no such Church called Ulceby in the County of Lincoln, and demand judgement of the Writ. The Plaintiff ●emur upon the plea of the Incumbent and as to the plea of Sir Philip, he reply, that there is such a Church called Ulceby in the County of Lincoln; and this plea being tried 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 therein 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. Sergeant Harris moved in Arrest of judgement, that it being tried Per Venire facias de vicineto de Ulceby, it was mis-tryed, for when Nul tiel vill. is pleaded, it shall be tried 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 tried, but it did not appear how the Venire was awarded. And at the first time of this motion it appeared, prima fancy, 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 therewith, 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 trial 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 trial, and that it is admitted that there is such a Town, and the Writ implies it: And judgement for the Defendant. Smith versus Linsey. Scire facias. A Scire facias against Michael Linsey late Sheriff of Kent, by Smith, reciting, that whereas he had recovered a hundred pounds against Sir Richard Potham, and had sued a Scire facias, the Defendant being Sheriff, returned that he levied 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 the son Office, and to know why he should not have Execution against him of the said sum, with which he had charged himself by his return; and the Defendant demurred, and upon reading of the Record, judgement 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 thereof. Cony versus Cony. Linc. 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. London 1. 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 (shown in Court) reciting that whereas 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 Privileges and Licenses concerning the making of Allome within this Realm, and within the Realm of Ireland for twenty seven years, for the Council given before by him to the Defendant (he being Counsellor at Law) concerning the drawing of the Letters Patents: And for his Council to be given afterwards, granted to him the said annual sum of 40 l. for 26 years' next, payable at Midsummer and Christmas. The Defendants plead that the King granted the sole, making of Allome to them as in the Letters Patents, and confess the grant of the Annuity to the Plaintiff by Deed indented, one part whereof sealed with the Seal of the Plaintiff they show, etc. 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 gains or profits have accrued to them, or any of them by the making of Allome, since the making of the said Indenture, whereupon the Plaintiff demur. 1. And judgement 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 Parker's case, vide 22 H. 6. 12. 2. Also the limitation is to perceive of the clear gains, and plead it by the Counterpart 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, etc. 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 Assizes holden at Winchester in the last Circuit, before the Lord chief Baron Tanfield (it being the third Circuit 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 worked therein 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 stolen out thereof: if, it be Burglary. Burglary. And the Lord chief Baron and I resolved that it was no Burglary, because that by the severance thereof by Lease to him which had it as a Shop, and his not inhabiting therein, it was not any Mansion house or dwelling house, & ergo no Burglary, but ordinary Felony. Mich. 15 Jac. Adavis versus Fleming. Case. AN action of the Case was brought for these words, Thou hast forsworn thyself before the Council 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 judgement by Chibborn, that the Common Law takes no notice of any such Counsels, and they are to meddle according to instructions, and if it be not warranted thereby, than no Oath whereupon any remedy: And therefore 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 Sergeant Harris said, that this Council 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 Councillors of the Marches shall be punished by this Statute. And the Court was of opinion that the action well lies, for the Council of Marches (without innuendo) is sufficient, for there is no other Council of Marches. And as the Court take notice of the Court of requests (for if one says another is perjured there it is actionable) so of this Court which is established by Statute, and concern the King, and thereof the judges ought to take notice; judgement for the Plaintiff. And by Lord Hobart, if one says, 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 filching Fellow, and didst filch four pounds from me; And after Verdict for the Plaintiff it was moved in Arrest of judgement, that the words were not actionable: And so the Court resolved, for the word siltching is dubious, and may be by Cozenage, 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 whereas 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 the Plaintiff, and moved in Arrest of judgement by Chibborn, that no action lies upon this promise, because it is Debt for the rent for Land; and the Assumpsit is of a less 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● Inn 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 judment against Executors for Covenant broken by them, shall be De bonis testatoris. johnson and Barker. & a breach assigned by act done by the Executors; and after Verdict it was moved if judgement 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 judgement shall be de bonis testatoris, vide the like judgement, 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 judgement) 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 nonsuited, or shall have the matter, or the trial pass against him by Verdict or judgement in Law, he shall pay costs. 1. Object. It was objected, that this Statute doth not extend but only to penal Statutes which then were in Esse. Answ. To which it was answered by the Court, that this Statute was a perpetual direction to all Informers. 2. Object. It was objected, that if there be no Statute, than 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 Council. 4. Object. There is no judgement against him, but that the Defendant eat inde sine die; and that is no other than an exception in stay of judgement: Keldridges' case. And a Precedent 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 enclosing Woods, but suffering them to lie open after cutting by the space of one month: he alleged the cutting the tenth of April, and the lying open until 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 judgement, 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 therefore 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 expressly costs upon demurrer; and this is not within 23 H. 8. if upon discontinuance: And now the matter pass against the informer, be it by Verdict or judgement, 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 Precedents 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 intent costs where the cause pass against the Informer, be it by default of matter or form. Winch doubted of this special case, because the matter is found for the Informer; but he agreeh if it were upon judgement; upon demurrer or special Verdict, costs should be given. And justice 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. Norff. 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 jury gave a special Verdict to this effect. A Devise to a Feme of a term upon condition. Wells seized 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 until 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 until she could read and write English, the Feme enters and proves the Will, taketh 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 personal, and with intent that the Lease shall not be to the Wife any longer than 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 therefore Judgement 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 judgement) who brought a Sci. fac. upon the judgement against 30. Ter-tenants, they appear and all besides 3. plead, that at the time of the judgement Ferdinand the Earl was seized in tail, etc. And the Plaintiff had judgement against the three with a cesset executio; and afterwards Whittington the Husband died, and this is surmised and entered upon 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 judicial, yet it is in nature of an Original, for she might have had an action of debt upon the judgement, and aught to have that action solely after the year, until the Statute of Westminster 2. which give Scire facias, and to this Writ they may plead: But in Writs judicial, 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 Sergeant 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 several Suits, and prevailed by a trial at Bar: And after other Creditors (which before would neither partake nor aid them) came and prayed to be joined with them. And the Commissioners doubted upon the Statute, whether they might allow them to be joined; and the words of the Statute are, That it shall be lawful 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 join with other Creditors that shall sue out the said Commission, the said Creditors so joining, to contribute to the charges of the said Commission, and if the Creditors came not in within four months, than 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 until the four months are passed, they may not proceed to distribution; for the Creditors which inhabit 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 joined, and before they be partakers, is not an affectual offer, without offering to be contributory to the charges: But to offer any particular sum, is not necessary, because they know not what sum 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 thereof. Also it was resolved, that at any time before the distribution made, they may come and pray to be joined: But after the four months passed, and any distribution made (though it be but of part) than they come too late: For by this means the distribution which is made, and whereby 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 john Spaci's Pocket, and I will prove it. Words. Henden moved in Arrest of judgement 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 King's Bench, Masters, bear Witness that he is a Thief. 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 trespass: For as one said, That he is a Thief, 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 thereupon, and it is a plain Affirmative. I arrest thee of high Treason; justice Winch prima fancy held, that the words were actionable; and not qualified by the subsequent words, as it should be if he had said, For thou hast stolen 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, etc. 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 lie. 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 whereas 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 whereas 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 therefore: And averred that he did procure a Licence, and delivered it to the Defendant, and disbursed such a sum, and deserved for his labour such a sum; 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 (whereas I am obliged to A.) if you will procure B. (which is a stranger) to make a Release thereof to me, I will pay you forty pounds, though it be done at my instance, no action lies, for it is apparent 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 seized 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, etc. 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 ploughed 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 judgement by Sergeant 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 trial was good, for Not guilty is properly a denial of trespass and disturbance; and though 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, than he ought to prove all the way, any the trial 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 trial 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 jointly 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 ways aiding unto Thomas Elm, or any other person for the said Thomas Elm, in any Actions, Suits, Vexations, etc. to be commenced and prosecuted against the said Plaintiff, etc. That then, etc. the Defendant pleaded Negative: The Plaintiff reply, that he such a day brought Trespass against the said Thomas Elm, and the now Defendant, and had judgement; and that the Defendant joined with him in a Writ of Error, in hindrance of the Plaintiff to have execution against the said Thomas Elm, and so was aiding and assisting unto the said Thomas Elm: Whereupon the Defendant demurred, and it was adjudged by the Court, that this prosecution of a Writ of Error to discharge himself of an erroneous judgement, is no breach of the Condition, no more than 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 Elm; and if he will restrain him, that he join 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 general and ambiguous sentence. It was urged that the Defendants had power to have several Writs of Error, 11 H: 6. 9 But the Court resolved, that being the Costs were joint, they ought to join, 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 therefore 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 judgement 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 special 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 than as a Conveyance; Mich. 18 Jac. powel versus Ward. AN action of the case was brought for these words, Case. Words. I have matter enough against thee; for john Halden hath found forgery against thee, and can prove it: And after Verdict it was resolved by the Court, that the words are too general, & will not maintain an Action, no more than if one said, that another had forget a Warrant, for it might be a Warrant for a Buck; and this is not right Affirmative. Shirley versus Underhill. A Quare impedit brought by George Shirley Baronet, Quare Impedit. Error in Quare Impedit. against Underhill and Bursey, for presenting to the Vicarage of the Church of Nether Elington, and count of a Nomination as appendent to the Manor of Elington, and Issue thereupon, for they pretend it to be appendent to the Rectory of Elington: And it was found for the Plaintiff at Warwick Assizes, and judgement there for him, and a Writ to the Bishop, and thereupon a Writ of Error was brought in the King's Bench, and it was to remove a Record which was between George Shirley Knight and Baronet, and the truth was, that Sir George is not, neither was named Knight by all the Record: And therefore 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 material 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 judgement was given at the Assizes, 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 judgement 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 misprision of the Clerk, but of the Court; and judgement erroneous in point of Law is not amendable, for if it be Quod capiatur, where it should be Quoth 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 general, and they found for the Plaintiff, and the judgement 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 misprision of the Clerk in the Record shall be amended, though it be in the judgement, Wild and Wolf. Mich. 33. & 3● Eliz 230. vide Dyer 258. Also Mich. 33. & 34 Eliz: Rotsie: 230. between Wild and John Wolf, Ideo considerate. est quod praedictus Thomas Wild recuperet versus praedictum Thomas Wolf, where it should be John; and Error was brought, and it was amended. Stepney and Wolf. 42 Eliz: Rotsie: 693. An action of the case by Stepney against John Morgan Wolf. Id. consid. quod recuperet versus praedictum Morgan Wolf, and there was no such Defendant, but John Morgan Wolf, and it was amended upon Error brought in the Exchequer Chamber. And vide Coke lib: 8. fol. 164. Blackamoors case, more cases upon this learning; where the misprision of the Clerk in the entry of the judgement of a thing which is apparent, and not of necessity shall be amended, as in Misprision of the sum of Arrearages 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 joined upon other matter. and a Nomine poenae, and shows not any Demand of the Nomine poenae; But the Issue was tried, and found upon other matter, viz. Non concessit: And now it was moved in Arrest of judgement, that he avowed for a Nomine poenae, and did not allege any demand thereof; yet judgement 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 collateral to the right: And in Actions upon the Case founded upon a promise, after request a Licet saepius requisite, shall be a sufficient Allegation of a request. Davies Case. Statute-Merchant without day of payment. ONe Davies acknowledged a Statute-Merchant at Gloucester in three hundred pounds, and the Statute did not limit any day of payment, and yet an Extent was sued; And upon motion by Sergeant 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. says, 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 special Verdict to this effect. Bankrupt. Francis bail 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: 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 until a day after, at which day he wholly absented himself. And upon this special Verdict the Defendant had Judgement. 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 gins 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 special Verdict. Hill. 18. Jac. The Earl of clanrickard's 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 Lord's 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 returns (as all the Writs issuing out of this Court in a Writ of Right, or other real 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 Sergeant Harris, that an Essoin did not lie, 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 provided that no Grand Cape shall be awarded upon this default, but only an alias Summons, so that the Writ is good and stands, and therefore he shall not be otherwise essoined: But it seemed to the Court to be otherwise here; for the first Essoin is as Nul, and therefore 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, etc. 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 auwarded, and therefore 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 thereupon 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 justify, and after issue tried and found for the Plaintiff, it was moved in Arrest of judgement, 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 legal sense; and no Innuendo will supply matter which give not cause of action, nor the justification: But the words ought to contain scandal 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 Waste against King, and allege Waste in several Closes Sparsim: Inquiry of damages. And judgement by nihil dicit, and an Inquiry awarded, the jury found but eight pence Damages: And upon motion for a new Writ, it was resolved, that the jury ought not now to inquire of the Wast: And therefore the difference is, when the Plaintiff upon the distress recover upon the Statute; there the Statute gives power to inquire 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 Waste, there the Wast is confessed, and the Writ shall be only to inquire of the Damages; so if the Plaintiff will release his Damages, he shall have a Writ upon judgement 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 lie 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, etc. have used to have Herbage and Pasture of the said five acres, viz. if they were sown, then after the reaping until re-sowing; and if they were not sown, 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 ; and that is not a thing which lie in Prescription, semble all Common, or so pasture for a certain number of years: And it was said, that a Grant de vestura terrae, or the 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 Assize, or justify for Damage pheasant: And he which hath the fore-crop is he which hath the , 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 therefore a good Prescription. judgement for the Avowant. Trin. 19 Jac. Wilson versus Stubbs. WIlson brought Replevin against Ralph Stubbs; Replevin. The Defendant avow as Bailiff to the Earl of Northumberland, for Amercements within a Leet at Toxcliffe. And upon Issue joined, and trial at the Common Pleas by Default, it was alleged, Supersedeas upon Indempnitate nominis. that Ralph Stubbs was dead; and the Plaintiff would proceed, and had judgement, 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 justices, 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 lie thereupon, 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 whereas he bargained and sold, that is to say, Merchandized for Lead in the County of Derby, Words. and thereby hath acquired money towards his livelihood: 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 judgement by Sergeant Harvey, that the action lay not, because that the Plaintiff shown not, that he used it as his Trade, nor that he gained his living by buying and selling; Also he is entitled Gentleman. But the Court hold that the action would well lie, and it had been adjudged 14 Eliz. That a Tanner shall have an action for such words. May's versus Sidley. Case. Consideration of forbearance. Mayes' brought an action of the case against Sir Isaac Sidley, and count, that whereas 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 Palmer's 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 Precedent (which was shown) of the 36 of Eliz. where the case was the same in effect with this: And judgement reversed, but it might be for other Errors. And the Court inclined that this action lie, for when it is alleged 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 altar 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 journeys Accounts: And it was said, that there were many Precedents of this case, and of the like actions, for if he doth not forbear convenient time, than 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 breve, Writ did not comprehend the time and circumstance, but the matter and substance, and ●ot at large, for than 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 alleged, 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 joined upon non concessit, and it is found Concessit, and good, for it shall be intended effectual, etc. And the Court shown their judgement, and concurred that judgement 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 general 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 alleged for such a time, which the Court shall adjudge a convenient time. Lord Hobart agreed, but he said, that it is not a total forbearance, for than 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. judgement pro querente. Pasch. 20 Jac. Suggs versus Sparrow. IN a Scire facias against the Bail, Scire facias. he plead that after the judgement and before any Writ of Capias was sued out against the Principal, he died: And upon Demurrer the Court adjudged it a good plea; bail is discharged where the Principal died before Capias awarded. Tadcaster against Hollowell. Timberley and Calverly. and i● this case a judgement was cited, Hil: 10 Eliz. Tadcaster brought debt against Hallowell, Hobbs 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 nonsuited, without mention made of his death. Tadcaster brought two Scire facias against Hobbs, and upon two Nihils had judgement: Hobbs brought an Audita Querela, alleging the death of Hallowell before Scire facias, and before Capias; and it was adjudged that the Audita Querela well say, and Hil: 4 Jac: Rotsie: 975. between Timberley and Calverly, Scire facias brought against the Bail, and he pleaded that the Principal died before Capias returned against him; And judgement upon argument given against the Plaintiff: The like judgement between justice Williams, and the Sureties of one Vaughan. Hil. 19 Jac. Rot. 312. or 3125. Walrond versus Hill. London, 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 bond 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 justices of the Common Pleas, by due course of Law, to the use of the Plaintiff; that then, etc. the Defendant pleaded, that before the end of the said Easter Term, the Plaintiff did not purchase any Writ of Covenant, pro fine levand. whereupon a Fine might be levied according to the course of Law. The Plaintiff replied, 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 parcel so conveyed, whereof they may levy a Fine: And upon this Replication the Defendant demurred. And upon argument at Bar by Sergeant Harvey for the Plaintiff, and Sergeant 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 peril, semble all 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 therefore it was urged that he ought to procure a Writ of Covenant at his peril. 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. aught to be upon the Land, or aught 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, etc. vide Palmers case, Coke lib: 5. fol: 127. & 4 E. 3. 39 18 E. 3. 27. 11 H. 4: 18. 21 E: 4. 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 aught to be an effectual 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 judgement, and a good Bar, that the Plaintiff had not purchased an Original Writ, for he ought to make himself capable of judgement acknowledged to him, vide 34 E. 1. Fitz: Debt 164. A Condition that if he present the Obligee to a Benefice, that then, etc. 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 parcel 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 judgement. Hord versus Cordery. A Precedent was shown 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 Ray of the said Dorothy Cox, and procured him to be examined before Sir Anthony Hungerford a justice of Peace, and thereupon was bound in a Recognizance to appear at the next general Sessions of the Peace at Devises, and from thence was bound over to the Assizes: And there the Defendants An: 15 Jac: before Sir Thomas Fleming and Tanfield justices of Assize preferred one Bill of Indictment of their malice aforesaid, and by the procurement of the said William and B. the said Dorothy showed to the grand Inquest, whether it were true or false. And the jury perceiving the malice and the falsi●y, did not find it to be true, and gave their Verdict by Ignorance. Upon Not guilty pleaded by William and Bridget, and non informatus by Dorothy, the jury 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, etc. and for the space of eight years last passed, 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 judgement it was moved, that it is not shown that he was a common Baker, neither had used the Trade, but used the Art and Mystery of a Baker: And there is (as Sergeant Hobart said) as much skill and art used by Bakers of Bread in private men's 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. And if a man had said generally, that he had gained his living by buying and selling, and not shown what Trade he had used, it is not good: Therefore the Trade ought to be alleged, 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 alleged, that he gained his living by buying and selling any thing which concern his Trade: And I was of the same opinion, and relied upon the case of 11 H. 4. 45. An nation upon the case against an Inn. keeper, and shown that he was lodged there, and his Horse was stolen: And the Defendant pleaded a plea, that he delivered to him the Key of the Stable, etc. And by the Court the Writ shall abate, because he did not show that he was a common Ostler: And therefore judgement 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 Bailiff to Sir Francis Barrington, because that the place, etc. was parcel of the Manor of Curls, and that John Curls was seized before the time, Avowry. etc. thereof, and held it of Sir Francis Berrington as of his Manor of Clanding by Knight's 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 seized 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. whereupon the Plaintiff demur. And show for cause, that the Defendant had not shown any Title to have Homage of the said John, and that the Cognizance is repugnant and no sufficient Seisin alleged of the Services, and that the showing of the Seisin is not formal, 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 show 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 showing that he had Issue by her; and yet if he had not Issue, he could not avow upon the Baron, but that aught to come on the other party, vide 5 E. 2. Fitz. Avowry 209. A man avow for Homage, and allege Seisin of Esenage without Homage, and good. And after upon motion this Term, judgement was entered for the Defendant. Trin. 20 Jac. Sherwells Case. Marry Sherwell brought a Writ of Dower, Dower. and in But thereto it was pleaded, that the Father of the Husband of the Demandant was seized 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, Jointure which bars Dower. for the jointure of the said Mary, the remainder to their Heirs: And that afterward the Father died in the life of the Husband, and after the Husband died: And adjudged that this is no jointure to bar Dower; according to the opinion in Varnons Case, because that the Estate of the Wife at the Commencement, take not effect immediately 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 jointure, this is not a jointure he bar Dower. Trin. 20 Jac. Francis Curl versus James Cooks. 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 thereof; and that two persons shall be named by the King and his Successors, who shall be Auditors of the Land of the King's 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 therefore two shillings, and shown that he was sworn and exercised that Office, and shown the Oath specially, and that he had by virtue thereof engrossed divers Accounts of the Feddaries, and had taken therefore two shillings; and that the Defendant having conference with the Plaintiff concerning his Office, and his bone gesture therein, 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 Cozenage: And then and there spoke further, You are a Cozener (innuendo the said Francis decepisse Dominum Regem 8. subditor in executione officii praedicti) and you live by Cozenage, & deceptionem dicti Domini Regis & subditorum shorum in executione officii full. Non Culp. verdict. pro Plaintiff. and Damages thirty three pounds. It was moved in Arrest of judgement by Attho, that first it is alleged, that the Fee of two shillings is lawful, and that he said, You have received moneys for ingrossement of Feodaries, which I will prove is Cozenage (innuendo the Fees aforesaid which are lawful) and then by his own showing it is not Cozenage. 2. It is insensible, Ingrossements of Feodaries, for they cannot be engrossed, 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 Cozenage is general, and of an ambiguous interpretation, and therefore no action lies for that: And he resembled it to Sir Edmund Stanhops case; He hath but one Manor, 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 cozening Knave, and hast cozened 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 Cozener, and a Traitor; Action lies only for the word Traitor, 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 alleged as spoken at several times, and as several causes of actions, there if the Damages be entire, the Plaintiff shall not have judgement, if any of the words do not bear action. Stanley and Buddens case. And other cases were cited that Cozenage 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 cozening Knave, and gettest thy living by Extortion, and didst cousin 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 doubtful. 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 Process shall be void: And shown 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 shown 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 thereof, to the use of the said Charles, and thereupon he entered into the said Obligation, which by the said Statute is void, the Plaintiff replied and shown, 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. whereupon the Defendant demurred. And it was adjudged against the Plaintiff, Extortion. for this Obligation is extortion, and Colore officii, and void by the Come 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 until execution, Copulative extent, and delivered in execution, if it were a Statute-Merchant, in which is a Liberate included, than the Fee is due. Also it was agreed that by the Statute the Sheriff ought to have six pence in the pound, where the sum 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 murrel, after judgement, and pleaded it specially, and being so Outlawed died, and that Outlawry is in full force, judgement si Action, whereupon 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 entitle. 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 judgement 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 Chooses 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. Upon 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 lawful 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. So if Tenant for life of a Rent be outlawed, and the Rend 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 , 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 thereby 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 judgement, he shall recover, and shall be accountable to the King therefore; 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 reversal 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: Rotsie: 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, Sergeant Hobart said, this Argument ought to be infallible, also this is the matter and not the form, for in this case the Demurrer was general: 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 thereupon and upon the view of the Record in Woolleys case, the Court gave judgement 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 gross for term of years, covenanted that he would not grant nor assign his Interest to any, Grant of an Advowson pleaded without alleging to be by deed, good if the issue be taken upon collateral matter. without offer thereof first to the Plaintiff, and that he should have it fifty pounds better cheap than any other, and allege breach of the Covenant, that he granted the said Advowson and his term therein over, without offering it to the Plaintiff, and Issue joined upon non concessit, and found by Verdict quod concessit, and damages fifty pounds. And it was moved in Arrest of judgement, that it is not alleged, that the Grant upon which the Issue is joined, was by Deed, and then no breach assigned: I at the first was of opinion that the judgement should stay; but after upon advisement, I concurred with Sergeant Hobart, and justice 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 shown; as upon Issue joined upon Grant of a Reversion, where it is not alleged 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 thereof is pleaded not by Deed, and Issue is joined 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 judgement: But it seems, if it had been found for the Defendant, the Plaintiff shall have judgement, for the Bar confess 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 judgement, 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 judgement, vide Smith and St●pl●tons case. Mich. 20 Jac. Chittle versus Sammon. CHittle against Salmon in Replevin, Replevin. Avowry for Rent granted to the Father in see, without alleging that it was arreare after the death of the Father. Counsance for Rent as Bailiff to Sir John Reves, upon a Grant out of the Land, whereof the place in which, etc. was parcel, upon a Grant made to the Father of Sir John, and for Rend arrear, etc. Issue was joined upon this point, if the place was parcel 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 judgement, that it is not alleged that this Rent was arrear after the death of the Father, as it ought to be, and therefore 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 whereas the Defendant had arrested one Batersby by a Commission of rebellion, Assumpsit in consideration that the plaintiff (being an Ostler) would keep a Prisoner to save him harmless. issuing out of the Court of the Lord President and Council of the North, as he affirmed: And whereas the Plaintiff keeps a common Inn 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 Inn at Otely, by the space of one night, as a Prisoner, and that he would keep and save him harmless, and show 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 harmless, and he refused. Non assumpsit found for the Plaintiff, and moved by Harvey in Arrest of judgement, that it is no sufficient consideration, because it doth not appear that he had lawfully arrested the said Batersby, for it is not affirmatively alleged, 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 Hobart seemed at first to doubt, if it did not appear that it was a lawful Arrest, than there was no consideration: But because the diversity, when the consideration appears to be for doing of a thing which is unlawful; As if one at the request of I. S. promise to better I. D. and he promise to save him harmless, this is a void Consideration; But if one request I. S. to enter into the Manor of Dale, and drive out Cattle, and that he will save him harmless if he doth so, and after Trespass 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 Innkeeper 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 thereupon, the party shall have an action of the case against the Sheriff upon this promise, for he which doth a thing which may be lawful, and the illegallity thereof appear not to him, he which employs the party and assume to save him harmless, shall be charged: And judgement was entered for the Plaintiff▪ Mich. 20 Jac. Parker's 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 increase. Murders, and burning of houses, and Theft be more often used than they have been heretofore, Amendment of a false Abreviation. and Felons cannot be attainted by the Oaths of the jurors, which had rather suffer strangers to be rob, and to pass without pain, then to indite the Offenders, of whom great part be flock of the same Country, etc. And upon Nil debet pleaded, it was found for the Plaintiff: And it was moved by Sergeant Bawtry, that the Writ had recited the Statute otherwise than it was, for the Writ says, Indicari pro indictari, and it ought to be written by this Abbreviation Indicanuri: And the word Indictari is a word by itself, and he resembled it to Freeman's case, Coke lib: 5. fol: 45. Fecit vastum vendiconnem & destrictionem, for destructionem, and not amendable. Also Coke lib: 4. S. Cromwell's case upon the Statute of Rich: 2. de scandalis magnatum, the word Messoignes is said Messages, 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, whereupon 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 York, and Cook for the Ticaridge of Leeds, the Writ was Vacariam, and for that the Cursitor was examined, 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 Vicarage 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 Freeman's 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 recital 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 80 l. to the Plaintiff. Mich. 10 Jac. Rot. 641. Poole versus Reynold. IOhn Poole brought a Prohibition against Richard Reynold Farmer of the Moiety of the Rectory of Colleton, Prohibition. Prescription to have Dear out of a Park in discharge of all Tithes, and after the Park is disparked. with the Chapel of Shute annexed to the said Rectory: And the Surmise was, that of time whereof memory, within the Parish of Colleton, there was a Rectory appropriate, and the cappel of Shute annexed thereto, Et una Vicaria perpetua ejusdem Ecclesiae de Colleton dotat. And whereas the said John Pool for six years' last passed, 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 disparked, which Park De temps d'out memory, etc. until the disparking thereof was used and filled with Deer, and severed from other Land, and was disparked. An. 10 Eliz. and converted into the said house, a hundred acres, etc. And that all the Occupiers of the said Park called Shute Park, de temps d'out memory, etc. until the disparking, had paid to the Vicar there, his Farmer or Deputy one Buck of the Summer season, within that time upon request, and one Do of the Winter season, within that time, etc. in discharge of all Tithes of the said Park, until the disparking; and after the disparking in discharge of all Tithes of the said Tenements, which they had accepted for all the time aforesaid, until the disparking and after, or otherwise agreed with the Vicar for them: And traversed this Prescription, and found for the Plaintiff. And now in Arrest of judgement 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, than 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 arable 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 principal case there adjudged, that building of new Mills in the same place, and converting of Fulling Mills into Corn Mills, altar 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 Andrew's, Mich: 10 Jac: Rotsie: 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 Do out of the Park, than it would alter the case: But it is general, and had been paid also after the Park disparked, viz. the tenth of Eliz. And the case of Cowper and Andrew's, 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 justice 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 judgement, that the words were not actionable, for they are not Affirmative or Positive, but a supposition only; as if he had said, Nowel's case. I will indite him for such a matter: it was vouched to be adjudged 51 Eliz. in Nowel's 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 inhabit within the same County, and another which inhabit 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 process 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 prejudicial to him; and he which was distributing in Chester answered thereto: And an Order was made by Sir Thomas Ireland, Vice-Chamberlain, that Process should be awarded to him which dwelleth in London; And an Inquisition was granted to stay the proceed at Common Law: And afterwards upon the motion of Sergeant Hitchar●, Sir Thomas Ireland was in Court, and show all that he could to maintain the jurisdiction, viz. That the Contract was made in the County Palatine, and that the privilege pursued the Plaintiff; and ipse qui est reus, non potest eligere, etc. Yet it was resembled to ancient Demesn and Guildable: And by Lord Hobart, he which inhabit at Dove● by this way, may be enforced 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 King's Bench, viz. Trespass. Baron and Feme brought in action of Trespass Quare clausum fregit, Trespass 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 Licence to enter into the Close made by the Baron; and not guilty as to the Battery. And the Court was moved in Arrest of judgement, because the Husband and Writ could not join for the weaking of the Close of the Baron, the Writ shall abate for all. But the Lord chief justice and justice Dodderidge were of opinion, that the Plaintiff should have judgement: And it seems that the Law is clear accordingly, vide 9 E: 4. 51. Trespass by the Husband and Wife for the Battery of them both the jury 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 join in an action, vide 46 E: 3. 3. Baron and Feme brought Trespass 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 showing of the party himself; and when it is found by Verdict. And justice Haughton and justice Chamberlain were of opinion, that the Writ should abate; for it is apparent, that as to the Trespass Quare clausum fregit, the Wife had no cause of action: But this case being debated at Sergeants Inn in Chancery Lane, at the Table, the Lord chief Baron was of opinion that Plaintiff should have judgement for that part, and he held the Writ good in part, and Reddenda singula singulie, Me●enest issint, as it seems no more than 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 judgement. Howell versus Auger. Trespass. IN an action of Trespass brought by Noy Howell against Auger, for breaking of a house and five acres of Land in Fresham, upon Non Culp. pleaded, the jury gave a special Verdict. Devise of a Fee after a Fee. Robert Howell seized 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, than 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 die 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, than 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 entered, the Plaintiff Noy by his Deed, In: 33 Eliz. in the life of Dorothy released to Thomas all his right, etc. 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 entered and took to Husband Henry Ayleyard, who leased to the Defendant, upon whom Noy entered, and the Defendant reentered: And Si super totam Materiam, etc. 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 relied upon a case which was adjudged in the King's 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 die 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. But Tuesday the eleventh of February, the Lord Hobart by our direction (because that we were straightened of time, and Howell was so importunate for justice, that we could not argue) delivered the opinion of the Court, that judgement 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 until it happen: And therefore 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 therefore sans question that Noy had barred himself. The Vacation after Hil. 20 Jac. MEmorand. That on Monday the seventeenth of February, at Sergeants Inn, upon the assembly of all the justices, to take consideration upon the Statute of 35 Eliz. cap. 1. for the Abjuration of Sectaries; the Atturney-generall, and Sergeant Crew being there, Resolutions upon the Statute of Eliz. cap. 1. concerning Sectaries: after the perusal of the Statute, and the Continuances thereof, it was first upon debate considered, whether this Statute was in force, or discontinued, and upon the perusal 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 entered 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 signs Bills is a Parliament. 2. It was agreed, that if divers Statutes be continued until the next Parliament, or next Session; and there is a Parliament or a Session, and nothing done therein 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 proceed in the same Estate, as if this Act had not been made; and if this Proviso had not been, than this Statute had been discontinued by this act of Subsidy, but when this ends and is determined, then is the Session ended, than it is a Session scilicet a Parliament, which ought to be pleaded, at the Parliament holden, etc. 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 thereupon 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 chief justice Ley made a long discourse, concerning the purpose and intent of Parliament, scilicet. That it was not their purpose to destroy so good Laws, and therefore 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 Laws 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 justices, the chief Baron, justice Haughton, Baron Denham, Hutton, Chamberlain, and Jones, the Attorney-general 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 Royal 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 justice 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, than he had no power to dissolve it, and then it is, as it were, a recess; 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, than 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 misinformed, 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 judges were not at this Conference, therefore it was deferred until the next Term; and in the interim, the Grand Secretary and the Attorney-general 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 Scarlet. Sussex. JOhn Bawtry Clerk, Case. brought an action upon the case against Benjamen Scarlet, one of the Attorneys of this Court by Bill, and count, In consideration that the Plaintiff will confess Judgement, the Attorney promise to defer the entry of the Judgement, etc. that whereas 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 confess the action; and pendente Pl. he the now Defendant in consideration that the Plaintiff would give order to his Attorney to confess the action, and to suffer the said Defendant to have judgement in the said Plea, for the said William Carter his Master, assumed to the Plaintiff, that no judgement should be entered, until after Craft. Annunciat. And that no execution shall be sued out until after the end of Michaelmas Term next, and show the performance thereof 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 judgement should not be entered in the Term, in which judgement is given, but that is in the discretion of the Court; and afterwards judgement 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 Apprenticeship, Covenant of an Apprenticeship. by which the Defendant had put himself to be an Apprentice to the Plaintiff in Ipswich, to the Trade of a Linen Draper; and there were divers clauses in the Indenture, according to the usual form, and assign for breach, the wasting of several sum of money. The Defendant pleaded the Statute of 5 Eliz. by which it is enacted, That it is not lawful for any one inhabiting in any City or Town 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 justices of Peace, under their hands and Seals where the Land lies, to the Mayor, Bailiffs, or other head Officer of the City or Town Corporate, and to be enrolled, entered, 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. The Plaintiff replied, 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 rejoinder offer to join Issue, that his Father had not Lands, etc. whereupon the Plaintiff demurred. And the question was, If this part of the Statute, To be certified by the Justices, etc. be such an essential part thereof, 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 Essential, and it ought to be so, at the time when he is put to be an Apprentice, but it may be enroled 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 enrolled within one year, if they bring and deliver these Conveyances, though they be not enrolled, 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, than the Replication is a departure, and the rejoinder also, and the Bar being good, judgement 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 employed 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 unlawful Games, etc. And a Custom, that an Infant at such an age may sell his Land, shall be taken strictly, viz. that he cannot give it, etc. 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 employed. Trin. 19 Jac. Rot. 1734. Blemmer Hasset versus Humberstone. Norf. IN 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 special Verdict found, it was resoved, A Copyhold may be extinguished without an actual surrender. that when a Copyholder bargain and sell his Copyhold to the Lord of a Manor, which hath the Manor in Lease for years, that thereby the Copyhold Estate is extinguished: And the Lord Hobart said, that if a Copyholder come into Court, and says, 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 Custom, for the Copyholder hath no other use of the Custom, 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 Thief, 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 judgement, that these words were not actionable, for Verba ambigua in mitiori sensu sunt accipienda: And therefore Coke. lib: 4. fol: 19 Thou art a Thief, for thou hast stolen Apples out of my Orchard, or thou hast rob my Hop gound; the latter words qualify 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 justice Winch was of opinion, that the action lay, and that the words, He is a Thief, he hath stolen 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 qualify the former words, Thou art a Thief, and hast stolen a bundle of Fitches, adjudged actionable: justice 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. Sergeant Hobart was of opinion, that the words shall be intended in mitiori sensu: And we all agreed, that that which qualifies or extenuates words, aught 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 until 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 Ecclesiastical matters, to have Offerings, Tithes, etc. for it is only as to the rightful Patronage, no gaining of the Patronage, but he may present, vide Green's 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 well 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 thereupon, 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 thereof after the Judgement: 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 Judgement 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. 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 exhibit 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. Wilts. EDmond Pleydell brought an action of Trespass against Richard Gosmoore, Trespass. Where one may fetter an Estray. and William G. for the taking and chase of a Colt and fettering of him, with a Continuando as to the fettering. The Defendant convey the Manor of Sharston to Francis Earl of Hertford: And that the Earl, and all those whose Estates, etc. had the Estrays which come within the said Manor, 〈◊〉 that the Tithing-men for the time being, seized the Estrays and proclaimed them at the next Market or Fair, etc. and kept them until they be claimed or forfeited: And that he was a Tithing-man, and seized this Colt as an Estray; and because this Colt was so fierce, etc. that he could not be kept in Pasture, he fettered him, and kept him in his Pasture within the Manor, and that for the space of two weeks, and the Plaintiff having notice claimed him, and had him delivered, etc. The Plaintiff demurred generally. Attho said, that he had not avorred that he continued fierce, etc. 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 justify for two weeks, which is the same Trespass: Then upon the matter the question is, if he which hath Estrays or Waifes, if he seize an Estray qui est ferox, whether he may fetter such Estray. It was agreed by the Court, that when an Estray comes within a Manor and walk there, this is a Trespass, and the party in whose Land the Estray is Damage-feasant, may chase him out of his ground. Also it was agreed, that until the Lord, or his Bailiff, or Tithing-man seize the Estray, that shall not be said an Estray; but when the Lord seize, than he hath the Commencement of a property thereby, and he is chargeable against all others for the Trespass which this Estray doth; and if this Estray within the year estray out of the Manor, the Lord may chase back the Estray, until he be seized by another Lord which hath Estrays: But if he be seized by another Lord, than 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 Manor which hath Estrays, and hath seized 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 44 E: 14. there the Lord seized an Ass for an Estray, he to whom the property did belong came and challenged the Estray, the Lord may detain him until he tender sufficient recompense for the Pasture, vide purc. 20 H 7. 1. by Vavisor, and 39 E: 3. 3. That the Owner cannot take an Estray until he tender recompense; 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 trespass, vide 6 E: 3. 8. it is not alleged that the fettering was to any damage of the Estray, vide 22 Ass. 56. Entered 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 Grandfather to the Plaintiff, of Lands in S. Olives in Surrey, and entitled himself by the Will of the Grandfather, by which he devised the Lands to the Plaintiff in tail, Devise. the remainder over to Leonard. Upon Nil debet pleaded, the jury found specially, scilicet, the Devise of the Reversion in tail, the remainder over to A. in tail, the remainder of one Moiety of the Land to one Daughter in tail, and the other Moiety to another, with Proviso, that for the raising of a Stock for John Treherne the Grandchild, 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, until 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 die without Issue to the said Leonard, within three months after he come of age, such a sum, the Condition to be drawn and devised by his Overseers: And if Edward Griffin and his Wife refuse, than 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 days 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 tendered any within that time, and that notice thereof was given to the Defendant, and that the Rent was demanded, and the Reversion claimed by the Plaintiff, sed utrum, etc. Upon the Argument of Sergeant 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, Coke lib: 5. 127. Palmer's 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 sum: But because it appears to the Court that this Action is founded upon a Contract in Law, therefore it ought to be brought in Surrey; as it was agreed in Ungle and Glover's case, a: 36 Eliz: vide Coke lib: 3. fol: 23. Nota, that the judgement is special for this cause, and no costs upon the Statute of 23 H: 8. for the Defendant, for the Statute says, that upon a Contract made by the Plaintiff, the Defendant shall have costs, and yet upon this Statute if the Executor be nonsuited, or Verdict given against him, he shall not pay costs, Where costs shall not be against Executors. by common experience always 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 judgement the Defendant shall not have costs against him, and especially because that they are express words in the Statute, that the Defendant shall have costs after Nonsuit, or lawful trial against the Plaintiff, and here is neither Nonsuit nor lawful trial, vide Statute 4 Jac: cap. 3. seems to be full in all cases where the Plaintiff shall have his costs upon Nonsuit, or when the Verdict pass 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 Nonsuit 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 Gloucester, 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 thereof by the Demandant, Essoin shall not be allowed in Dower. the Tenant had procured a Nonsuit, and yet the Demandant proceeds with the Issue. And at the Nisi prius, the Tenant relying upon the Nonsuit, it appeared not by whom the Petit Cape is awarded. And now upon motion by Sergeant Henden, who relied upon the Nonsuit, 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 add 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 joined, 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 Palms Sheriff of York, upon the Statute 32 H: 6, and it was shown, that he being under Sheriff, a Capias ad satisfaciendum was delivered to him, to Arrest one Francis Lancaster upon a judgement 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, whereby he hath forfeited forty pounds. Upon not guilty pleaded, and Verdict against the Defendant, it was alleged in arrest of judgement, 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 Bailie, 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, etc. 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 indicted, but whether it be within this Statute or no is doubtful. 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 thereupon, and he makes a Precept, and takes thirty shillings, this is not within the Statute; also Colore officii will not serve, for it is general, and it ought to be shown that it was a Capias, and to whom it was directed: And although that all Process should be generally directed to the Sheriff, yet some may be to the Coroners, or some (by the misprision of the Clerks) may be omitted; as Jacobus Dei gratia etc. tibi precipimus, and say not, Vicecomiti 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 in his name had acknowledged satisfaction to his damage, and says not, whereas Revera non fuit satisfactus, that is not good. And the Court was of opinion for this cause, that the Plaintiff should not have his judgement. Bickner versus Wright. AN action upon the case was brought by Richard Bickner against John Wright, Case. Prescription. for the making of a Coney-burrow in damage of his Common; The Plaintiff prescribe to have Common omni tempore anni, and says not Quolibet anno: And after Verdict adjudged good. Trin. 22 Jac. Goldenham versus Some. GGoldenham brought a Writ of Dower against John Some, Dower. Judgement in Dower upon Vourcher. who vouched the Heir of the Husband, who entered into the Warranty, and said that he had no Assets: The Demandant had judgement for her Dower (because nothing is said to the contrary) against the Tenant, with a Cesset executio, until the Warranty be determined: And the Tenant which vouched, when the trial was at Assizes made default, but it was said that it should be the default of the Vouchee, for he was dead before the Assizes: 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 Vouchees: But it seemed that the Voucher was determined, and that he shall have the benefit of his Warranty (by Scire facias) out of the judgement; but the Court doubted if the Plaintiff shall have judgement 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 conditional, vide Dyer 256. there the judgement 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 Vouchees be Counterpleaded, the Demandant shall have judgement presently, vide 48 E: 3. 5. Br: Vourcher 38. the judgement 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 judgement is against the Heir conditionally, if not, against the Tenant, and so judgement against one not party to the Suit, and which never appeared: And in this case the judgement 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 Sergeant Finch moved the case, and prayed judgement, for he said, the ancient Books were many for judgement conditionally; but some to the contrary, viz. when the Heir is vouched within the same County, and is within age, there judgement presently against the Tenant, with a Cesset executio: And when the Heir enter into the Warranty, and is taken to render the Dower, there is judgement against the Heir, and that the Tenant shall hold in peace: But he said that Mich: Ashburnham against Skinner. 38, & 39 Eliz. Rot. 1208. Marry Ashburnham brought Dower against Skinner, who vouched the Heir of the Husband in the same County, who presently entered en le garranty, and said, that he had no Assets, there the judgement was given presently against the Tenant, with a Cesset executio: And after the Issue was tried, and found that the Heir had not Assets, and the Wife had Execution, but it was said, that Error was brought thereupon, yet the Feme continued the Possession. Henden said, that the Tenant otherwise shall lose the benefit of his Warranty, vide 13 H: 4. Judgement 241. The Court adjudged this case for the Demandant, upon view of the said Precedent 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 judgement is given against the Tenant, with a Cesset executio, all is one, as a conditional judgement against the Tenant, for if Assets be found, then Quia compertum est, etc. with judgement against the Heir, and that the Tenant shall hold in peace. It was objected, that judgement ought to be conditionally at first, and not to give one judgement against the Tenant, and afterwards if Assets be found, another judgement against the Heir; but that is no inconvenience. Some say, that when such judgement 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 Thief as any is in England, and he broke up the Plumber's Chest with other men's Tools, which stood in my Lord of Suffolk's 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 judgement; The Court resolved that the Plaintiff should not have judgement. The first reason is, because that there is not any affirmative directly, that he is a Thief, but as arrant a Thief as any is in England, And avers not that there is any Thief in England: And the Law will not presume any thing that is evil, Iniquum in lege non presumitur. And as Lacy's case was, He is as great a Thief as any is in Warwick Goal, He ought to aver that there was a Thief 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. Querens nil capiat per breve. Mich. 22 Jac. Methell versus Perk. MEthell brought an action upon the Case against Perk, 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 collateral thing shall be alleged. 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 judgement by Hitcharn, that the Plaintiff had not alleged any sufficient request, by showing such a day, and such a place, which is issuable: And being collateral 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, than a Licet saepius requisitus is sufficient. But the Court were of opinion that the Plaintiff shall have judgement; and yet they agreed the diversity, when a Request shall be alleged as part of the thing to be performed, and when it is but employed in the Debt: For when it is collateral, there it ought to be alleged, and for the time it is sufficient, viz. Postea, but the place of the Request is omitted: And if Issue had been tendered thereupon, it might be supplied afterwards where it shall be tried, where the action was brought; And Non assumpsit allows 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 Judgement was reversed in the King's Bench, because that the Request being upon Collateral matter, which was the cause of the Action, it is material. 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 jurisdiction. The Plaintiff reply, Town shall be intended all the Town. that the Tenements are in the County of Lancaster, absque hoc, that the Town of Haylesam is within the Cinque-Ports, whereupon the Defendant demur, and adjudged no cause of demurrer. For Haylesam is all Haylesam, and the Court will not intent 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 aught to come upon the showing of the Defendant an his Bar, vide 50 E: 3. 5. Sir William Ellinghams' case. Defend. respond. oust. THE FIRST YEAR OF KING CHARLES. Termino Pasch. Hitcham versus Brook. SIR Robert Hitcham Sergeant at Law, and to the King, Case. brought an action upon the case against one Brook, a justice of the Peace, and which had been Sheriff of Suffolk; and count, that he for divers years last passed, had been one of the King's Sergeants, 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 judgement, that these words are not actionable. First, because no time is alleged 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 alleged as they were spoken, and that was Indefinite. 2. The time is not material, unless the Defendant make it material by his plea, viz. When he was in giving Evidence for the King against a Traitor, and then he repeated such words; or when that the Plaintiff was frantic, and of that he intended, and so justify, there the time may come in question. 2. The second Exception was, that there is not any express affirmative: to that it was answered by the Court, that it was more than an Affirmative, for he had (as he said) proof thereof, and not a report or hearsay: And if one say, it is reported, etc. that will not bear action, unless he justify 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: 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 judgement. Flight versus Gresham. Case. THomas Flight brought an action upon the case against Gresham; and count, that whereas the Plaintiff and one Baleman were bound in an Obligation to the Defendant, In consideration that the Obligor pay the sum, the Obligee assume to deliver the Bill. for the payment of such a sum at such a day: The Defendant in consideration that the Plaintiff would pay to him the laid sum at the day, assumed to deliver the Obligation to the Plaintiff, and shown 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 thereupon Issue, and found for the Plaintiff. And it was moved by Sergeant 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 sum, the Obligation had been forfeited: And he resembled it to the case of 9 E: 4. 19 An accord (in Trespass) 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 King's Bench, Greenwood and Becket. between Greenwood and Becket, where one had forfeited three Bills, in consideration that the Plaintiff will pay the three several sums three days 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, than 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 bovoght 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 sum, an action lies thereupon. And the opinion of the Court was, that the action lay, for (for any thing that appears) the moneys 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 thereof, 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 principal sum: And if one had judgement, 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 jury had found solvit, the Plaintiff had judgement. Hil. 21 Jac. Rot. 3150. trevor's versus Michelborne. EDmond trevor's 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, whereupon a return. habend. was awarded, an Averia elongata returned, and then a Withernam, and then a Nichil, etc. And for this taking of insufficient Pledges, this Scire facias is brought, upon Westminster 2. cap. 2. And the Defendant demurred, Somerford and Beaumont. vide the lake Precedent, Hil: 11 Jac. Rot. 3563. between Somerford and Beaumont. Hil. 1 Car. Uvedall versus tindal. Enter Hil. 21 Jac. Rot 705. Southamp. SIr Richard Uvedall brought an action of Trespass against William tindal Clark, Vicar of Alton, Trespass. What things are small 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 jury gave this special Verdict; Viz. For the Moiety of a Lead of Wood, Si videbitur Curiae quod decimae glasi ne sunt minutae decimae, than the Defendants not guilty, but si sunt minutae decimae, than they are guilty. And this case was argued at Bar by Sergeant Bridgeman, adn Sergeant Henden: And the Court unement agreed, that for aught 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. 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 therein: 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 Whole and Lambs. Beddingfields Case. Pasch: 3 Jac. in the King's 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 Field was planted with Saffron, which contain forty acres: And it was adjudged that the Tithes thereof 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 Wield, 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 Wield: And that was a special Verdict, whether the Vicar shall have the tithe of it, or the Parson, but one of the parties died before any judgement. And if Tobacco he planted here, yet the tithes thereof are Minutae decimae: And all these new things, viz. Saffron, Hops, Wood, etc. if it doth not appear by material 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 Steel and Anne his Wife, for the Ravishment of the body of Ralph Smith Cousin and Heir of Ralph Smith; In Ravishment of Ward brought by Executors, are Nonsuited, 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 Cousin and Heir being within age; and that William Peacock the Testator seized of the body, and died possessed thereof, 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 jury was at Bar, and the Plaintiffs after Evidence were Nonsuited. 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 justice being absent) gave their opinions. And justice Crook argued that they should not have costs, and put many cases, when Executors bring actions, they shall not pay costs, and 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 justice Harvy was of the same opinion, but justice Yeluerton 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 immediately 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 Nonsuited there shall be costs, for it is upon Contract, though in some sort real. 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 rendering rend, and for Rend arrear they bring an action, it shall be in the Debet and Detinet, and they shall pay cost; if they be Nonsuited, and yet their Title is as Executors, but it is founded upon their own Contract, so if they bring an action of Trespass for the taking of Goods which came to their possession, which Goods were in truth tortiously taken by the Testator, and he died possessed thereof, and they being Nonsuited 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 Rend 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 therefore costs by the Statute of Gloucester cap: 1. and the Statute of 4 Jac. enlarge the actions, and not the persons. Hil. 1 Car. Beverley versus Power. Upon an Assembly (this Term) of all the justices at Sergeants Inn, by virtue of an Order of the Star-chamber made the last Term, at reading the Case was. james Beverley was Plaintiff against Robert Power, Pardon. and Mary Beverley, and others, which Bill was exhibited Hil: 16 jac. 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 jac. the general Pardon is made by Parliament, by which all Offences, Contempts, and Misdemeanours, deal 20. Decemb. before (except such Offences, contempts, &c, whereof or for which any Suit 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 justice 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 accidental 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 alleged 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 judgement, that the Plaintiff had not alleged any notice given to the Defendant of his marriage. And by the opinion of me and my two Brothers Harvey and Yeluerton. judgement was given for the Plaintiff; For the Defendant ought to take notice thereof at his peril, unless he had provided to deliver the Ruff after marriage, and after notice thereof for if he ought to have notice (no place being agreed upon where it shall be given) than he should be compelled to inquire 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 peril: 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: 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 King's 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. judgement pro Querente. Laicon versus Barnard. Lincoln. 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 justices, 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 Trespass 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 replied that the Damages found by the jury, were only for the taking and chase, and not for the value: And that this Action was for another Trespass, whereupon 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 Trespass: Also the Damages of two pence cannot be given for the value of the Sheep: Also the Plaintiff when a Trespass is done to him, may retake his Goods, and yet he shall have an action of Trespass for the taking of them: And every taking, viz. (abduxit) import a chase; and no man will say, that by the recovery in Trespass, when the Plaintiff had his Goods, that thereby the Defendant shall have the property: But it is true, that if the Plaintiff recover the value, thereby 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 judgement for the Plaintiff. Yeluerton 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 entered, the Plaintiff, Where the Nisi prius shall be amended. etc. and the Defendant Executrix of Sir H: Wade, etc. 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 jury should be prejudiced, viz. that it may falsify their Verdict, than it shall not be amended, but in this case, it is but the Writ by which the jury is warned to appear: And the authority of the justice 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 Diet 106. In Wootons' Case, there the Jurat. was well, and omitted in the Nisi prius, Anthony Coke: Also the Issue was between Wooton and Cook, 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. Entered Hil. 22 Jac. Rot. 4462. Debt. AN action of Debt was brought by Lionel Farrington, Qui tam pro se quam pro Domino Rege, Debt upon a penal Statute is not gone by the death of the King. etc. 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 Yeluerton and I were opinion, that the Debt is gone, for it is at the suit of the King, and judgement is given for the King: And there shall be an answer to the King. And we relied upon the cases vouched by the Lord Coke; but justice Harvey and Crook to the contrary: And upon conference with all the justices of Sergeants Inn, it was resolved, that this action was at the suit of the party, for he might be Nonsuited, vide 25 H: 8. Br. Nonsuit, that the Informer may be Nonsuited, vide 6 E. 2. Fitz Nonsuit 13. when the jury come again to deliver their Verdict, the King cannot discharge them and be Nonsuited, 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. Cousin and Heir of Bartholomew 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 judgement is given, this space was perfected, and judgement 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 entered, Mich: 18 Jac: Rotsie: 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 judgement that was assigned for Error in the King's Bench, and it was amended in the Common Bench by the Court, vide there, that it was by the fault and misprision 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 judgement, 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: Rotsie: 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 parcels did not amount to three hundred pounds, but wanted six pounds thereof, 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 supplied in the Plea Roll after Verdict. Hil. 12 Jac. Rot. 420. Parker versus Parker. THe Imparlance Roll was, Mich: 12 Jac: Rotsie: 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 judgement) amended. Mich. 2 Car. Crocker versus Kelsey JOhn Canterson and Agnes his Wife, Tenants in special tail, had Issue a Son, Lease made by Feme in special 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, rendering Rend, etc. by virtue whereof they entered: Agnes died, John the Son entered, and afterward the said John Herring and Margaret his Wife entered; 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 entered, and being ousted by Kelsey, brought Ejectione firmae: And this special Verdict being found, judgement 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 whereas she had served the Defendant and his Wife, and done to them loyal 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 alleged request and nonpayment; And after Verdict for the Plaintiff, it was moved in Arrest of judgement, upon the Book of 13 Eliz. Dyer, that this is no sufficient consideration, because that it is not alleged, 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 therefore 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 consideration that you have been my surely to such a man for such a Debt, I promise to save you harmless. And in consideration that the Plaintiff was Bail 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 judgement for the Plaintiff. Hil. 2 Car. Hearne versus Allen. Entered 22 Jac: Rot: 1875. Oxford. 1. 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 special Verdict was found. Richard Keene was seized 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 Message, 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, etc. then to john K. his Cousin, and his Heirs for ever; And by the same Will devised his Goods and all his Lands to Eliz. his Wife, during her Widowhood, and died. Elizabeth his Wife entered. Thomas the Son entered 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 entered and made a Lease to the Plaintiff, Et si super totam materiam, etc. 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 therefore of necessity judgement 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 pass, 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 Come pertinent for aught that appears: And if the Law be so, the two acres do not pass, but descend 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 Chapman's case, or a Fee-simple: And yet Yeluerton and Crook inclined that it was an Estate-tail; but Lord Richardson, Hutton, and Harvey to the contrary, for an intent against Law shall be void, vide Abraham and twigs case, Co●e lib: 7. fol: 41. 3. If the Collateral Warranty which descended had extinguish● and barred the right of Anne Keene. Henden would have maintained it, because that the Warranty is special, although it was collateral, that it did not Bar, which is san● question (be it special or general) 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. special Warranty shall be used by Rebutter, but not by Vourcher. And judgement for the Plaintiff. If a Feme shall 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 herself 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 Process 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 doubtful, for by the 11 of H: 4. 80. and Dyer 271. if the Baron be outlawed, and the Wife Waived, 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 reversal thereof 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 howard's Case. MEmorand. That the Earl of Marleborough, Lord Treasurer of England, came to Sergeants Inn in Chancery Lane, 6. Febr. and there assembled all the justices 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-general, 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 annual Fee, with the Windfalls, etc. and the 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 annual Fee be determined; then if the casual profits, as Windfalls, etc. may be yet taken by Charles Howard who is the patents. And upon debate it was unanimously agreed, that the King might dispark his Park; and that by the disparking thereof, 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 presumed in Law to be altogether for the benefit of the patents, 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 Manor, and he dismember the Manor, 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 annual 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. Ploughed: Sir Thomas Wraths case. The Earl of Lincoln's Case. Star-chamber. MEmorand. That the Solicitor General 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 special matter, and he prayed an Attachment: And this case was propounded to the judgges, 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 diminution of his Honour, 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. Wilts. IN an Ejectione firmae brought by Thomas Winsmore, against Micha●l Hobart, upon a Lease made by Edward Long, the jury gave a special Verdict. Habendum to parties not named in the Deed. William Lord Sturton, seized 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, john Hobart and Henry Hobart, Sons of the said Thomas for their lives, and the life of the Survivor of them successively; By virtue whereof the said Thomas entered, and was seized 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 seized, and the Reversion descended to Edward his Son, the Lessor of the Plaintiff, Thomas Hobart and Henry died, Michael and john survived, Michael entered, Thomas Long entered upon him, and made a Lease to the Plaintiff, who entered, and was possessed, until the Defendant ousted him. And Judgement 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. Entered Pasch. 2 Car. Rot. 1761. Hertf. A Quare Impedit was brought by George Hartox and Cocks against the Bishop of Lincoln, Advowson in gross for life. Lord Keeper of the great Seal, Mary Hewes, and David Dublin Clark for the Church of Essington. The Issue being joined by the Incumbent, upon the Appendancy, the Evidence given to the Plaintiff to prove it was such. Henry 6. was seized of the Manor in Fee, and granted it to Marry his Consort for life, Habendum una cum advocatione of the said Church: The Queen Mary presented, and after there was a Presentment by Laps, than the said Queen presented again; And afterwards Edward the fourth seized of the said Manor, presented, and then Henry the seventh, and Henry the eighth: And the King Edward the sixth granted the Manor and other Manors, and the Advowson to Sir john Pawlet in Fee, reserving Tenure in Capite for the Maonnrs, and Socage Tenure for the Advowson: And the said Sir john Pawlet granted the Manor and the Advowson to William took in Fee, who presented the last Incumbent; and under this Title the Plaintiffs entitle themselves. The Defend. said, that the said Wil. Took was seized of the said Advowson, and it defended to William took 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 gross, was, Henry the third being seized in Fee of the Manor of Essinton, made a Lease thereof 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 several Tenors; And this was their Evidence. And Sergeant Henden maintained, that by this exception of the Advowson, when it was granted for life, made it to be in gross for ever: And he vouched 38 H: 6. 13. Quare Impedit by the King against the Abbey of Zion, and the Incumbent there, by the Exception of the Advowson it was become in gross, and there one said, at least during the Estate for life, and that is all which is employed by the Book, for the judgement is for the King, because that it being not appendent, is passed not by the Grant, by the Habendum una cum, etc. And though that the Court unement agreed that it is but in gross, for the Estate for life, and that it is all one, as if the King had granted the Advowson which is appendent for life, and the Grantee dies, and the Advowson is appendent again, and yet he insisted and persisted to have a special Verdict found thereupon: And I moved my Brother Yeluerton, that before we admit of a special Verdict (as it hath been used in former times) to go to the judges of the King's 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 jury to try the matter, and they came in and found for the Plaintiff; And after that the Demurrer, which was joined for the other Defendant Mary, was by consent entered for the Plaintiff, vide Dyer 34 in appeal, vide 7 H. 6. 37. Chidley's Case. CHidley brought a Quid juris clamat, and had judgement 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 Precedents were. that he ought to be sworn in Court; and the entry of the judgement 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 Waste, nor arraign an Assize until he assent. Trin. 3 Car. Rot. Humbleton versus Buck. Lincoln. 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 whereas a Controversy was between the Inhabitants and Tenants of Fletam, and one Palmer, for and concerning the having of Common in one parcel of Land which was a Sea-bank, in which they had Common of Pasturs', for taking by Cattles, and also by taking and cutting the Grass: And whereas the said Palmer had brought an action of Trespass against the now Plaintiff, for entry made by him in the said close, and for taking his Grass, pretending that the said Land in which he claimed Common was his several, and free from their claim of Common, the Defendant in consideration that the Plaintiff had given to him a jugg 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, until the determination thereof, he promised to pay to the Plaintiff one moiety of his charges, and over and besides twenty pounds, and that thereupon he defended the said Suit, and pleaded Not guilty, and at the trial thereof Palmer was nonsuited, 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 said, that the said Palmer had brought Trespass, to which the Plaintiff had pleaded Not guilty, absque hoc, that the said suit and trial was for the said Common; And Issue being joined it was found for the Plaintiff, and Damages to twenty pounds. And in Arrest of judgement 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 trial thereof, because he did not plead the Title of Common, which had been the proper & apt way for the trial thereof: And when the jury find that which is contrary and repugnant to Law, that is repugnant and not good. And this case was strongly argued by Sergeant Davenport in Arrest of judgement, and by Attho for the having of judgement: 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 Moiety of the Charges, if he prosecute the said Suit, until the determination thereof, so that if it had been found against the now Plaintiff, the now Defendant ought to have paid the Moiety 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 until the determination of the Suit, for the maintenance of the Common. And the Court gave judgement for the Plaintiff, for it might be for the maintenance of their Common against Palmer, for if he had not the Soil thereof, but had enclosed it as part of his Wastes, the Plaintiff could not plead the Title to Common without admitting the Soil and to be in Palmer: And if one had been of council, 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 said, 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 general performance, the Plaintiff replied and shown, that she made a Lease to the Defendant of certain Coalpits, rendering eighty pounds Rend, 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 alleged after general performance pleaded. whereupon 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 general to perform all Covenants; and the reason is apparent, for when the Defendant plead performance of all the payments, that is intended an actual payment, for he cannot now rejoin, that he made tender, for that shall be a departure from his Plea. And that was the reason of the judgement 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, whereas 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, etc. contained in the said Writing, so that the Plaintiff may enjoy the Rent according to the intent thereof, then, etc. the Defendant recited the Deed and pleaded performance, the Plaintiff replied that the Defendant had not paid the said eight and twenty shillings eight pence upon such a Feast, whereupon the Defendant demurred, and adjudged for the Plaintiff. And the Lord Coke in his private Book (as the Lord chief Baron said) had shown 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, than the Plaintiff ought to show 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 altars the nature of the Rent: But otherwise when it is to perform Covenants. And the judgement given in the King's 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 Manor 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 general admittance, before justice Jones: And this admittance was first entered 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 entered, and so is the Roll upon the View▪ And in the Philizers Roll the recital 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 entered. And after Verdict, and judgement for the Demandant, a Writ of Error was brought, and that assigned for Error: And it was moved that it might be entered upon the Philizers Roll. And it was resolved by all the Court that it should be supplied and entered upon the Philizers Roll; and the principal 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 appear by Guardian, and where by Prochein amy. vide Rawlins case, Coke lib. 4. fol: 53. The use of the King's 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 Mainprize entered in another Term, lib: Intractionum fol: 366. It was vouched by Croke, and affirmed by Yeluerton in one Simpsons' case in Durham, Simpsons' case. where the Tenant was by Prochein amy, where it should be by Guardian, was Error. The Precedents 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. Wolf versus Hole. Wolf an Attorney Plaintiff against Hole, by a Writ of Privilege, Amendment. and he Count upon an Assumpsit: And after Verdict given and judgement, 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 judgement is, Ideo le Plaintiff & says 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 hilaries case, and vide th●re in Dyer, that the Plaintiff when he is sued by Privileges, aught to find pledges, and that as well, as when a Bill is filled against an Attorney. But now, because that it was assigned for Error, and that if it be amendable, the justices of the King's 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 entered at any time. Hil. 2. Car. Rot. 565. Hilton versus Paul. RIchard Hilton brought an action of Trespass against Robert Paul, Trespass. 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 jury gave a special Verdict, Viz. That the Parish of Hinkley was the temps dont memory, etc. and yet is an ancient Rectory, and a Church Parochial; And that the Town of Stoke-Goldenham is an ancient Town, and parcel of the Rectory of Hinkley. And that from the time of H. 6. and afterwards until 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 Parochial Rights, and Churchwardens; 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 Sergeant Barkley, and he vouched Linwood fol: 89. and said, that there is Ecclesia major & minor, and a dependant Church upon the principal, and another Church, and which is found to be used and reputed, ergo it is not a Parish. And that the Exception of the Chapel of foulness, which by the Statute is made a Parish, proves that Chapel 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 Churchwardens and Overseers of Stoke-Goldenham might assess for the relief of the Poor. And though it be found that after the time of H. 6. and until now, it had been used as a Parish Church, that doth not exclude that it was not used so before. And a Reputative chantry 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, therefore 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 judgement 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 Bailiffs 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 Humphrey (was seized of the place in which, etc. in Fee, and by his Deed granted the Rent of six pounds to the said Humphrey his Son for life out thereof, to Commence after the Death of the Grantor, and shown that Humphrey the Father died, and for Rend arrear, etc. The Plaintiff in Bar to the Avowry confess the grant and seisin of the Land, and that the said Humphrey died seized of the Land out of which the Rent was granted, and that that descended to William, and from William to the Plaintiff, who entered, and demised to the said Humphrey the Son, parcel of the Lands unde etc. for five hundred years, by force of which Lease, the said Humphrey had entered and was possessed. The Defendants replied, that afterwards and before any part (for which they made Conusance) was arrear, the said Humphrey the Son surrendered the said Lease to Sir Edward Peto, to which surrender the said Sir Edward agreed, whereupon 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 joint 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 personal things, when they are suspended, they are extinct, unless it be in altar 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 extinguished 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 seized in Fee, and may hold it charged with both the Rents, 2 H: 5. 7. 5 H: 5. 34. Ass. 15. And this Estate surrendered is in Esse, as to the benefit of strangers, but not as to the benefit of him who accepted it, for he is seized 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 surrendered it, that shall not revive the Rent, because that he had by his granting over of his interest, discharged of the Rent extinguish it, quaere: but in the principal 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 judgement for sixteen pounds, Sci. fac. which judgement was the Oct. Hil. An. 2 Car. And one being returned Tertenant, pleaded that after the judgement, viz. 22 Jan. he (against whom the judgement 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 judgement, whereupon the Plaintiff demurred. And the sole question was, to what day the judgement shall have relation, for it appears in the pleading, To what day a Judgement shall have relation. that the twentieth day of January was the day of Essoin; and it seemed to the Court that the judgement should have relation to the first day of this return, as well as if it had been a return in the Term, viz. 15 Hil. for otherwise it should be uncertain. And he may be Nonsuited 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 judgement, and vide 33 E: 6. fol: 45, 46. the principal 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 Term is the fourth day, viz. If one be obliged to appear, or to pay moneys the first day of such a Term. Loquendum est ut vulgus. But the Law relate the judgement 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 judgements before the fourth day, and after the day of Essoin would not release this judgement, which was the 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 judgement, vide 22 H: 6. 7. a. a Writ of Error ought to be brought after the judgement rendered, or otherwise no Execution shall be stayed▪ And all the Court gave judgement 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 thereof 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 pass by the Grant: And although that Robert the Son might have avoided it, yet when he had barred the Estate-tail, etc. 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 join in a Fine, rendering Rend to Tenant for life, that passeth from every one, that which lawfully might pass, 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 seized 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, parcel of two hundred pounds' arrear for Nomine poenae, and did not say in his Avowry, that he was satisfied of the rest: And therefore judgement was given for the Plaintiff, vide 20 E: 4. 2, a. 48 E. 3. 3. Chichley versus the Bishop of Ely. Quare Impedit DAme 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 seized of the Advowson of the said Church in Fee as in gross, and presented to it being void, Edward Marshal which was Instituted and Inducted, and afterward the said Thomas Chichley died seized, and the Advowson descended to his Son and Heir Sir Thomas Chichley, Traverse upon Traverse. who by his Deed indented, etc. for the increase of the jointure 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 Heirs Males of the body of Sir Thomas Chichley; and that by force thereof she was seized for life: And the Church being hold by the death of the said Edward Marshal 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 seized in Fee of the said Advowson, and also of the Manor of Preston, and divers other Lands in the County of Cambridge, which Manors and Lands were holden of King James in Capite by Knights-service, and being so seized he died, and that this Advowson and the Manor 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, whereby the King seized the body, and was possessed of the Manor 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 alleged. The Plaintiff replied 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, whereupon the Defendant demurred. And after many Arguments at Barnes, 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 alleged by the Defendant, for Traverse upon Traverse is only when the matter traversed is but Inducement: Also it appears fully that the King is entitled 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 therefore the denial of the Office is not material: for if he dies seized the King may present without Office, vide Bendoes case, 21 Eliz: Rotsie: 1378. Crachford against Gregory Lord Dacren, when the King is entitled 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 Usurpation. 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 lie in Grant, the King is in actual 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 seized of the Advowson of Sir Thomas C. who also died seized of the Manor of Preston holden in Capite, that is a good Title, and the Office found is another Title, and ●oth aught 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 several 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 the King tolls all the right of the Plaintiff, and therefore only ought to be answered, and he ought not to traverse the Title of the Plaintiff, which by the Plea was tolled; but notwithstanding that, he answered not the dying seized of the Advowson, and the Tenure, by which the King is entitled upon the Office, and therefore all is one: And the Plaintiff had waved his Title, and not maintained it: And therefore judgement 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 whereas 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: Upon Not guilty pleaded the Feme was found guilty of the Rescous: And it was moved in Arrest of judgement 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 process, 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 less, vide 16 E: 4. fol. 3. But after divers motions at Bar judgement was given for the Plaintiff: And the Lord Richardson held strongly that it lies. And this Tort may be punished at the Suit of the party who had damage thereby, viz. the party, the Sheriff or Baily: And Harvey and Crook agreed, but Yeluerton and myself doubted thereof, 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 satisfy him. Farrington versus Caymer. LIonell Farrington qui tam pro se quam pro, etc. 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 prizes than were assessed by the justices, upon Not guilty pleaded, the Plaintiff had a Verdict at Norfolk Assizes. And it was moved in Arrest of judgement, that the Information was brought in the Common Bench, and yet it was brought and tried in the proper County where the Offence was committed, whereas 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. And upon grand deliveration and hearing of council of either part the Court resolved that judgement should be given for the Plaintiff. And first it was agreed, that (whereas by the Statute of 23 H. 8. cap. 4, which appoint that the justices of Peace assess the prizes of Barrels and other Vessels of Beer; and that they which sell against that rate forfeit six shillings, etc. to be recovered by action of Debt, Bill, Plaint, or Information in any Court of Record, in which no wager of Law, etc. and gives one Moiety to the party which will sue, and the other to the King, no action may be brought in any Court of Record, but only in one of the four Courts of Record at Westminster. And the proof thereof, see Coke lib: 6. fol: 19 Gregory's case, and Dyer 236. a. Then the principal 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 justices of Peace; at their six week's Sessions; and it was unanimously agreed that it is not. First, because the preamble of the act recite, that the Offences recited therein escape punishment, and for their more speedy and effectual punishment, and repeat the particulars, but therein name not Brewers by express words, and it cannot be intended that the intent of the Statute was to give them at their six week's Sessions, to intermeddle with things not determinable at their general Sessions. And it was objected by Although, 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. Misdemeanours in Bear-brewers, Conspiracies and agreements to sell at such prizes, and the making of wholesome 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 says 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 thereto, and the Statute of 37 of H: 8. makes not any thing in this case, but tolls the six week's Sessions, and makes it inquirable at the general Sessions. Ideo judgement for the Informer. June 19 An. 22. Jac. MEmorand. That upon a Conference at Sergeants Inn in Fleetstreet, it was resolved and agreed, by the Lord chief justice Sir James ●ea, the Lord Hobart, Baron Bromley, Baron Denham, justice Hutton, and justice Jones; That any one may erect an Inn for lodging of Travellers, without any allowance or Licence, Resolutions concerning Inns, and who may keep an Inn, 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 Malt, until 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, unless it could be brought to be within the Statute of 2 E: 6. which hath never been taken to be subject to that Statute in point of licence: And vide that an Ostler is chargeable 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 Schoolmaster of Gloucester, 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 unless he disturb the water. And it was said by the chief justice, that it was so resolved before by the judges, and that justice Doderidge, justice Haughton, and justice Chamberlain were of the same opinion, and so now was my Brother Crew, the King's Sergeant, 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 Inns were licenced at first, and Originally by the justices in Eire; but nothing could be shown to that purpose: But all the justices 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 judges might. And it was said by the Lord chief justice, that there was not any such thing in the Eires; but because that strangers which were aliens were abused and evilly entreated in the Inns, it was (upon complaint thereof) provided that they should be well lodged, and Inns were assigned to them by the justices 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 Nuisance, 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 thereof 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 therefore it was agreed that they should advise concerning it; and the best way is, that they be strictly enforced to keep the Assize, 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 Oats 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, Sergeant Calais moved in Arrest of judgement, 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 enjoin 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 thereupon; But if a Tailor had made a Suit of Apparel for I. S. and I. D. request him to deliver it to him, and he will pay for the making thereof, 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 whereas he might have detained the Horse until he had been paid for the pasture and feeding, he at the special 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 justice 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 Manor of _____ is found to be for the Copyholders (without the Licence of the Lord of the Manor) they being seized in Fee, may make any Lease for a year, Custom in a Manor to make a● Lease for years. or many years, and when they die, that ●●e 〈◊〉 shall cease, and that the Heir or Heirs may enter. It was moved in Arrest of judgement, that this was a bad Custom, and that the Copyholders had by Custom an Inheritance, and might by the general Custom of the Ream make a Lease for one year; And that tenor the general Custom of the Realm, but the Custom of every Manor 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 casual, 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 surrendered to the Lord, that the Lease should be void, had been a 〈◊〉 Custom, because that he 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 peril, for otherwise he might have procured the Licence of the Lord; and then by this Licence the Lord had dispensed therewith, and that is, as it were, the Confirmation of the Lord: For if a Copyholder makes a Lease for twenty years, with the Licence of the Lord, and after dies without Heirs, yet the Lease shall stand against the Lord by reason of his Licence, which amounts to a Confirmation. And the Plaintiff had judgement. 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 special Verdict was given, in which the sole question was, Whether this Lease was made by Baron and Feme, being there was no Rent reserved thereby. It was objected, that this Lease could not be made good by the Feme by any acceptance, and therefore it is not the Lease of the Feme, no more than 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 joining in the Lease, it is not void, for she may affirm the Lease by bringing a Writ of Waste, or she may accept Fealty: And so was the opinion of the Court, and judgement entered accordingly, vide Coke lib: 2. fol: 61. in Wiscots' case. Count of a Lease by Baron & Feme, and show 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 special Verdict was found at the Bar, and the Case was thus. Custom, that the Lord have a Feild-course over the Lands of his Copyholders if the Tenant enclose it is no forfeifture. Barnard Vtber seized of the said Land to him and his Heirs by Copy of Court-Roll, according to the Custom of the Manor of Binham: And that within that Manor 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 (whereof these fifteen acres were parcel) from the Feast of Saint Michael, if the Corn were inned, and if it were not, then after the Corn were inned, until the Feast of the Annunciation, if it were not before that time sown again with Corn, in all the Lands of the Copyholders not enclosed. And that it is a Custom, that no Copyholder may enclose any Copyhold Land without the Licence of the Lord: And if any be enclosed without Licence, than a reasonable fine should be assessed by the Lord or his Steward, for the Enclosure, if the Lord would accept thereof. And it is also a Custom that if the Lord will not accept thereof, than the Copyholder which so encloseth, shall be punished at every Court after, until he open that Enclosure. And the said Vtber enclosed the 15. acres with an Hedge and Fence of Quickset, 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 Enclosure, and he did it not, whereupon there was a command to the Bailiff to seize them as forfeit, which was done; And the said Mary being Seignoress of the Manor entered, and leased to the Plaintiff, and the Defendant entered upon him. Sergeant 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 unlawful, vide Dyer 245. 34 E. 1. Formedon 88 15 A: 7. 10. 29 E: 3. 6. That if the Tenant enclose, the Commoner may break his hedges. And though by Littleton an Enclosure which is a Disseisin, is a total Enclosure, whereby he which hath the rent cannot come to distrain, yet this also is an Enclosure, because that it obstructs the feild-course, for they cannot come so freely, without interruption or damage, for the hedges may deprive the Sheep of their wool: And he compared it to the case of 3 H. 7. 4. One is obliged to make an Estate of his Manor 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 Manor, if he alien part thereof, he forfeit his Recognizance, he vouched 42 E: 2. 5. and Coke lib: 4. that denial 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 five 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 therein, he vouched 14 E: 2. Fitz. Grant 92. A Rent granted to one and his Heirs, out of the Manor of Dale, which he hold of the Manor of D. this is an Inheritance. And if this shall not be a forfeiture, than this Customary Inheritance, which the Lord had in the feild-course, might be tolled at the will and pleasure of the Copyholder. Sergeant Hitcham argued strongly to the contrary. First, That it is no Enclosure, because that all is not enclosed. Secondly, The forfeiture of a Copyhold is always by some thing done to the Copyhold land itself, 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 thereby made better, and more beneficial to the Lord; and therefore 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 waist, which might be given in evidence: But he said that in Brooks case, at the first coming of Popham to be chief justice, 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 year makes a Hay-yard in the land, that is waste. 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 strictly. Trin. 5 Car. Starkey versus Tayler. Case. STarkey an Atterney of this Court, brought an action upon the case against one Mr. Tailor of Lincoln's 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 judgement, that these words maintain not action, for the generality, and uncertainty, that he shall be called a common Barretor. And the chief justice seemed to be of opinion, that those words are not more, then if he had said, That he was a common Brabler or Quarrel. But it was urged by Sergeant Hicham that the action lies, and that it is a general Rule, Quod sermo relatur ad personam; As in Birchley's Case, He is a corrupt man, And in Moor's Case, it was said of an Attorney, That he was a cozening 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 judge, without doubt they were actionable: And in this case being spoken of an Attorney, who is a Minister of justice, and who hath the Causes of his Clients in his hands, to gain them, or to lose them. The Statute of Westminster says, the Sheriffs are charged to expel all Barrators 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 therefore an action lies. But to say of another man, That he is a common Barretor, is not actionable, unless he saith, that he is convicted. Hil. 3 Car Rot. 1302. Watt versus Maydewell. Leicest. 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 special Verdict found, the Case was thus. Francis Griffith seized of Land in Fee, by Indenture, bearing date the fourteen of November, and 14 jac. demised the said Land whereof, etc. for one and forty years, to Robert Rome, rendering two shillings Rend, 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 jac. to commence from the Annunciation last, demised the same Lands for ninety nine years to Dame Frances Perroint, who entered and was thereof possessed; And after that, the said Francis Griffith by another Indenture the same year, bearing date the fourteen day of November, 16 jac. to commence from the seventeenth of November, An. 1619. devise it to the said Robert Rome, for one and forty years, who accepted it, and afterwards entered, and being possessed made his Will, and appointed Executors, and died, the Executors administered, and made the Lease to the Plaintiff, who was possessed, until 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 surrendered or determined by matter in Law before the Commencement thereof, 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 years by Paroll, that is merely void, but if the second Lease had been by Deed, and he 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. Sergeant Baker's 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 merely 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 Guardian in Socage, this is no surrender of his Lease. 42 Eliz. Rot. 105. In Sir Arthur Capulets 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 jury was at the Bar in an Ejectione firmae brought by Henry Baker against Bartholomew Johnson; upon a Lease made by James Baker, which was seized of two Marshes among others called Knightswick and Southwick, In a recovery if the Town be omitted the Land do nor pass. which lie 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 seized 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 therein 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 thereto, no more than if one had a Manor in the Town of Dale, which Manor is called Bradford; and within the said Manor is a place known which is called Braisty Wood, and he omit the Manor 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 Forest of Inglewood, in Insula de Thamete, etc. 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. London. Case. FRancis Bill brought an action upon the Case against Sir Aurthur Lake, and counted, that whereas at the special instance of Lettuce Wife of the Defendant, Where the request is the cause of action he had provided for the said Lettuce 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 Linen stuff, etc. and making of several Garments for the Wife, and aver that the several things bought amount to such a sum, and the making thereof was worth such a sum, which in toto, etc. and allege the request: And aver that they were necessary Vestments, and convenient for the degree 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 Original, or any Action upon this promise and Assumpsion, whereupon the Plaintiff demurred. And upon Argument at Bar by Sergeant 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 thereof; and then the matter of promise is for the payment of so much money as it should be reasonably worth, and therefore the request is there collateral, 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, than it doth not charge the Husband: see the difference when request is material and shall be alleged, 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 Apparel, that shall not charge the Husband: Sir William Alephs' Case. But an Infant is capable to make Contract for Diet and Apparel necessary. An: 25 Eliz: Sir William Alephs' case was adjudged, that where an Infant had taken so much for his necessary Apparel 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 Satin and Stuff to make her a Gown, and Sir Michael paid the Tailor for the making thereof: 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 ploughing the Land when he shall be required, he ought to allege 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 worried and killed divers Sheep of the Plaintiffs: And the Defendant in consideration thereof promised to satisfy the Plaintiff what he was damnified when he should be required thereto; and the promise was An: 18 Jac. and the request and refusal 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, whereupon 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 therefore he said, as well as Debt lies upon the delivery of Cloth to a Tailor for the making Garments thereof; so an action of Debt lies for the sum accompanying the special 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 whereas 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 show forbearance until March next; And upon Non assumpsit pleaded, and Verdict for the Plaintiff, Sergeant Thinn moved in Arrest of judgement, 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 shown 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 aught to come on the other part, or otherwise it shall be upon Evidence, if it be necessary. And judgement 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 greatness of the Springtide, and a great Flood, the Hall of Westminster was so full of water, that neither the Sergeants could come to the Bar, nor any stand in the Hall, for there was a Boat that rowed up and down there, and therefore all that was done, my Brother Harvey went to the Stairs which came out of the Exchequer, and road to the Treasury, and by this way went and set in the Court, and Adjourned all the juries, 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 coming into Court was not of necessity, unless it had been the Essoin day, or that the Court should be Adjourned as Craft. Animar. The Chancery and King's Bench sat, for they came by the Court of Wards. Freeman versus Stacy. Mich. 5 Car. BEtween Freeman and Stacy, upon a special Verdict the Case was; y The Plaintiff count upon a Lease by Indenture for one and twenty years, rendering Rend, 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 judgement should be given against the Plaintiff, because the Statute of the 21. of King James, cap. 16. extends to Debts for arrearages of Rent expressly. But I, and my Brother Harvey, and Brother Yeluerton 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, etc. 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-simple 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 supplied 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 opinion agreed with us; And judgement 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 show 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 entitled 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 special Verdict, the Case being argued by Sergeant Ward for the Plaintiff, it was adjudged for the Plaintiff. First, because that this Action is an Original 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, unless 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 thereby it might be known for what it should be brought, and that in many cases requires longer time than 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 judgement for the Plaintiff: And Sergeant 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 Cook alias Barker, brought an Action of Waste against George Cook alias Barker, and count against him as Tenant for life, How a Writ of Waste shall be where there is a lease for life, remainder in fee. of the Lease of George Cook, and entitle himself to the Reversion, Ex assignatione of the said George, and shows that George Cook being seized in Fee, and the Tertenant 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 special upon the Case, as a Fine levied to one for life, the remainder in Fee, the Writ shall be special 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. etc. 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 Waste, vide 41 E: 3. 16. 42 E: 3. 19 50 E. 3. 3. Reg. 75. But at this day the Law is clear, that he in remainder shall have an action of Waste, F: N: B: fol: 207. but these Books prove that the Writ of Waste aught 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 Thief, and hast stolen one Passions Lamb, and marked it and denied it: And upon Not guilty pleaded, and Verdict for the Plaintiff: Sergeant Ashley moved in Arrest of judgement, because that it is not shown whose Lamb, for Passions is no word of any signification without the name of Baptism. And the Court was of opinion that the Count was good, for it had been sufficient to call him Thief, and then the subsequent matter and words aggravate, and contain matter of Felony: And it is a general Rule, that when the first words are actionable, the latter words which toll the force thereof, aught 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 Would resign a Benefice upon request, that then the Obligation should be void. A Condition to resign a Benefice upon request, And the Condition was entered; the Defendant demurred, and judgement in Banco Regis pro querente: And upon Error brought, judgement 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 lawful: 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 Council said, that he who is presented to a Church is married thereto, 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 cohabit 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 Manor in the County of Cambr. Trial of an action of Account upon receipt in two Counties. and also as Bayly to another Manor in the County of Suff. And this action was brought in the County of Cambr. and found for the plaintiff, and judgement to account, and found in the arrearages, and judgement given. And now the Defendant brought a Writ of Error, & judgement was reversed because it was mis-tryed, for it should be tried at the Bar by several Ven. fac. to be directed to the several Sheriffs. First it is agreed, that a writ of Account against one as Bailiff of his Manor, 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 receipt 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 whereby 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 tried at Bar, and it is not aided by the Statute of 21 Jac: cap: 13. Trin. 8 Car. purnel 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 seized in Fee of sixty acres of arable Land, and forty eight acres of Meadow and Pasture, whereof the place in which, etc. was parcel; And he the sixth of Febr., An: 18 Eliz. by Deed granted an Annuity or Rentcharge of thirteen pounds six shillings out thereof, to Edward Steward in Fee, payable at the Feast of Saint Peter, or within eight and twenty days after: And if it be arrear for eight and twenty days after the said Feast, that then he forfeit for every Fine after forty shillings, with a clause of Distress as well for the said Rent, as for the said forty shillings, if it shall be arrear. Edward Steward seized of the Rent died, whereby it descended to joan jermy Wife of Thomas jermy, Daughter and Heir of the said Edward Steward, and they being seized thereof in the right of the said joan, An. 41 Eliz. in Crastino animarum levied a Fine of the said Rend to Robert Brook, and Isaac jermy, 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 thereof, and of the Statute 27 H 8. they were seized of the said Rend in Fee, and after the said Robert died, and Isaac survived, and is yet seized Per jus Accrescendi, and for Rend arrear, etc. and for the said forfeiture of forty shillings, they avow, whereupon the Plaintiff demur. And upon Conference between the judges, 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 joint-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 itself, and not by any Indenture. And the principal reason is upon the Statute of 27 H: 8. which is, where two or three are seized 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. judgement pro Defendant. 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 Terms after but by the negligence of the Attorney it was not filled; and it was Unanimo assensu resolved that it should be filled, 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 one Allonson, for there Error was brought and Diminution alleged, 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 Angel. Charles' Harbert Plaintiff, against Angel, Case. Words. in an action upon the case of words, which were, Thou art a Thief, and hast cozened my Cousin Baldwin of his Land: And after Verdict for the Plaintiff, it was moved in Arrest of judgement, that the words would not maintain action. And at the first, justice Crawley and justice 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 rob, etc. it would be otherwise. And the Lord Heath and justice Hutton were of a contrary opinion, and that the words And, and For, are in this case to have one effect, and declare what Thief he intended: And they relied on Birtridges case, Coke lib: 4. And upon this diversity of opinion the Lord Heath conferred with the justices of Sergeants 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 cozening of the Land: And Verba sunt accipienda in mitiori sensu; As to say, Thou hast stolen my Corn, it shall be intended Come growing: so in Arrows case, Arrows case. 19 Jac. Thou art a Thief, and hast stolen ten Cart-loads of my Furzes; adjudged not actionable, for it shall be intended of Furzes growing. Quaerens nil capiat per breve. Ram versus Lamley. Norff. RAm brought an action upon the case against Lamley, and declared, That whereas 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 justice 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, etc. And after Not guilty pleaded, and Verdict for the Plaintiff, Hitcham moved in Arrest of judgement; And the Court unanimously resolved that these words being spoken to the justice of Peace when he came for his Warrant, which was lawful, would not maintain an action, for if they should, no other would come to a justice to make complaint, and to inform him of any Felony. Quaerens nil capiat per breve. 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 Bailiff to Sir William Shepherd, 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 Shepherd and his Executors, out of the place in which, etc. for the residue of his Term, 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 days, 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, than he might distrain for that, and the Nomine poenae: And for Rend arrear by a year after demand due, etc. he makes Conuzance; And thereupon the Plaintiff demurred generals. And after many Arguments at Bar, the justices delivered shortly their opinions severally, and all argued that it is a Rent-charge: and then a Distress 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, rendering Rend, and if it be lawfully demanded, than it shall be lawful 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 actual demand at the day he could not have distrained therefore, vide Mands case, Coke lib: 7. fol: 28. And all agreed, that when a Distress is for Homage, if it be once tendered 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 altars not the nature of the Rent, 22 H: 6. a good case. Rend 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, than it shall be demanded, there it is said, that if Rend be tendered and refused, the Lord or Lessor may distrain without demand. It was agreed, that if Rend he reserved at the time of the Distress, and it be refused, and a Distress taken, that is Tortuous, 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 upon the Land, 1 Jac: Rotsie: 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: Rotsie: 2865. Rend reserved payable out of the Land: And although that the judgement is by confession after demurrer, yet it was for the reason afore recited. judgement for the Defendant The Lord Audley's Case. Wilts. 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, etc. 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 presence, 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. Wilts. IUratores pro Domino Rege super sacramentum suum present. Quod Martinus Dominus Audley nuper de Fountell Gifford in Comitatu Wilts. Deum prae oculis non habens, nec naturae ordinem respiciens, Indictment for Buggery. sed instigatione Diabolica motus & seductus primo die Junii, An. Regni Domini nostri Caroli, etc. sexto, Apud Fountell Gifford praedictam in dicto Comitatu Wilts. in domo Mansionali ejusdem Martini Domini Audley, ibidem vi & armis in quendam Florence Fitz-Patrick Yeoman insult. fecit & cum eodem Florente F. ad tunc & ibidem nequit, Diabolice, felonice & contra naturam rem veneream habuit, ipsumque F. ad tunc & ibidem carnaliter cognovit, peccatumque illud Sodomiticum detestabile, & abominandum, Anglice vocat. Buggery (inter Christianos non nominandum) ad tunc & ibidem cum eodem Florence F. nequit. Diabolice, felonice & contra naturam Commisit & perpetravit in magnam Dei Omnipotentis displicentiam, ac totius humani generis dedecus, ac contra pacem dicti Domini Regis nunc Coronam & dignitatem su●s, & contra formam statuti in hujusmodi casu edit. & provis. The like Indictment for the same Offence, with the same person, 10 June, the same year at new Sarum, in the Mansion house of the said Martin, etc. Memorand. That these Indictments were sound 6 April, An. 7 Car. at new Sarum, by virtue of a Commission before Edward Lord Georges, Nich. Hid Knight, chief justice ad placita, etc. Thomas Richardson chief justice de Banco. John Denham Knight, one of the Barons, etc. Edward Hungerford Knight, Walter Vaughan Knight, Laurence Hid Knight, Thomas Fanshaw Knight, by Letters Patents, Ipsius Domini Regis pro eyes & quibuscunque tribus vel pluribus eorum inde Confect. ad Inquirendum, etc. Memorand. That the 25. day of April, An. 7 Car. A Commission was made for the Arraignment of the said Lord Audley upon the said several Indictments, by his Peers, in which the Lord Coventry, Lord Keeper of the Great Seal, was made high Steward: And the Peers were in number twenty seven. And he pleaded Not guilty: And one question was propounded to the judges which did attend, viz. The Lord chief justice of the King's Bench, the Lord chief justice of the Common Pleas, the Lord chief Baron, Baron Denham, justice Jones, justice Whitlock, justice Harvey, and justice Crook. If the Wife might be produced as a Witness against her Husband. Where a Wife may give Evidence against her Husband's. And it was resolved that in case of a common person, between party and party she could not, according to the opinion in Coke first Institutes, fol 6. but between the King and the party, upon an Indictment she may, although it concerns the Feme herself, as she may have the Peace against her Husband. Buggary sans Penetration. Also it was reported to the Lords, by the Lord chief justice, when they were demanded, whether (this matter of Fact being as it was proved) that Pollution and using of a man upon his Belly Sodomitically without penetration was Buggery by the Statute of 25 H: 8. the Lord Richardson was of a contrary opinion upon the Conference, yet his opinion was involved in the general. But as he said to me, their opinions we delivered only upon this case and upon these examinations, if the Lords gave credit to the matter in fact, that it was Buggery, but they gave not a general opinion, that may be a rule in other cases, but upon the foulness and abominableness of this Fact. And afterwards the Lords were not unanimously resolved that it was Buggery, but this Point was resolved, that they ought to believe and give credit to the Law, as the judges had declared it. And it seems that they could not give a special Verdict upon this trial, for it never was seen: Also the Commission determines after judgement given, And the Staff of the high Steward shall be broken. And after long debate, they seriatim (laying their hands upon their hearts, as the Manor is) said, that he was guilty of Rape, beside the Lord North. And for the Buggaries twelve of the Lords acquitted him, and fifteen found him guilty, and so he had judgement. And at this Arraingnment the judge's assistant sat with their heads covered, as the ancient use hath been; But the Sergeant at Arms was commanded to make Proclamation, That the judges, and all the Lords (not being his Peers) and all of the Privy Council should be covered, and others not. And this was only in relation to the precedent usage, and the right which appertain to the judges: For in Parliament, they being called by Writ, use to be covered as oft as the Lord Chancellor or Keeper of the Great Seal (which is Speaker) puts on his Hat; But now it is used, that they put not on their Caps, until they have been requested by the Lord Speaker. And when they are called into the Star Chamber, or to Errors in the Exchequer Chamber, they set covered with their Caps. 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 Judgement 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. Whereupon 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 inferior Court. 2. The Record itself comes not but a Transcript. 3. The Statute of 34 H: 8. hath appointed the Execution, and that should be pursued. 4. This Innovation is perilous, and never put in practice. And he relied upon the diversity. When judgement in a peculiar inferior Court, comes into the King's Bench, or into this Court by Writ of Error, and is affirmed, than the Superior supplies it, and add strength to the judgement: But when judgement 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. Trials 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 relied 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 judges consulted and agreed, that the Writ was insufficient: And so judgement was given against the Plaintiff. But it was said, that upon this judgement 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 inferior Court, and to extend their jurisdiction by this way, as it were by a Windlass, it is not lawful. 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 jury gave a special Verdict, whereupon the Case was such. Margaret Sanders seized in Fee, makes a Feoffment to the use of herself for life, without impeachment of Waste, 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 Waste, 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 john 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 Prodigal. Margaret Sanders dies, and Dorothy dies without Issue, the Feoffee enter, Elizabeth Sanders dies, Nicholas is yet alive, and Posthumus dies without Issue, john Napper and his Wife, and the said Francis entered and were possessed, until the Defendant as Son and Heir of the said Margaret, entered and ousted them. Et si super totam Materiam, etc. 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 happened, 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-people 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 Derby 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 special Verdict there found about 8 Jac. and many times argued at Sergeants 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 entailed by the same Conveyance, etc. brought against the Earl of Bridgwater and his Wife, one of the Coheirs of Ferdinand, Earl of Derby, was adjudged in this Court, vide boraston's 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 collateral; 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 judgement was entered 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 whereas time out of memory, etc. 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 judges. 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 Bail of them, and to let them to Bail, finding sufficient sureties, and that the Sheriffs are also, and time out of memory, have been Keepers of the Gaol there. And whereas the Plaintiff had brought an action against one Smith, and recovered, the now Defendants (being Sheriffs) had taken insufficient Bail of him, etc. And upon Not guilty pleaded, it was tried before the Lord chief Baron at York, for the Bail are supposed to be taken at Wakefield, but that was not alleged, for any thing which appears, to be out of their jurisdiction: And the jury contrary to the direction of the Lord chief Baron gave Verdict for the Plaintiff. And after many motions in Arrest and praying of judgement, it was resolved, that this act was done by them as judges, and for this judicial 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 Bails, 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 veil, and that is as judges 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 judges, vide 12 E: 4. 19 Conspiracy lies not for that which a justice doth as judge of Record. Quaerens nil capiat per breve. 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 Bailiffs to Sir John eliot, Executor of Richard Giddy: And that the place contain twenty acres, and was parcel of the Manor of Trevelun: And that Thomas Archbishop of York, and Cardinal, and three others were seized of the Manor whereof, etc. in Fee, Traverse of a day. and the third of June 11 H: 8. by Deed enrolled granted to King H. 8. a Rent-charge of fifty Marks per annum out thereof in Fee, with clause of Distress, and convey the Rent by descent to E. 6. Marry, and Elizabeth, who by her Letters Patents granted it to Richard Giddy for life, who made the said Sir John eliot his Executor, and died, and for such a sum arrear they Avow, etc. The Plaintiff pleaded in Bar to this Avowry, and confessed the Seisin of the said Archbishop, and the others, and said, that the said Archbishop and the others, the fourth of June, 11 H: 8. enfeoffed Peter Edgecombe in Fee of the said Manor, who conveyed it to Richard Edgecombe Knight, who entered, and licenced the Plaintiff to put in his Beasts, which he did, and that they were there, until by the Defendants distrained, absque hoc, that the said Archbishop 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 alleged, Et hoc paratus est verificare. The Defendants say, that the Archbishop and the others granted the Rent to the King modo & forma as they had alleged, and Issue thereupon, and the jury found. That the said Archbishop 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 Manor, out of which, etc. to the said Sir Peter Edgecombe in tail, the remainder to the King, and they being seized by their Deed, dated the third of June, 11 H: 8. sealed and delivered, which is found in haec verba, and that it was enrolled 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, etc. And upon Argument at Bar, and conference had, we all declared our opinion, and agreed that judgement should be given for the Defendants. The first reason was, that the Issue is joined 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 alleged, vide Littleton, Title Release, that modo & forma avoid and prevent the matter of day, and goes solely to that which is material: 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 enroled, and then it is a good Grant of the third of June, vide H: 7: 31. Then the special Conclusion found, which is contrary to Law, shall not conclude the judges to give judgement according to Law. And so judgement 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, Trial 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. But here it was found, that one only occupied the Land, and therefore the action well lies. Sir John Gerard's case. And a Case was shown, 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. Upon 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 entered 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. Blackamoors case. The Proclamation made and entered before the Original 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 therefore 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 therefore it was awarded to be amended. Pasch. 9 Car. Glazier versus Heliar. Sussex Case. GLasier brought an action upon the case for words against Heliar, and shown, that three Colliers being in an house in Sussex, were feloniously burnt in the said house, and shown, that two or three men were indicted, convicted, and executed for the said Murder, the Defendant knowing thereof, and intending to bring the Plaintiff in peril of his life, Words. as accessary to the said Murder, said to him, Thou didst bring Faggots a mile and a half to the burning of the Colliers: And after Verdict for the Plaintiff, and motion in Arrest of judgement, 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. judgement pro quaerente. Smith versus Cornelius. Southamp. JOhn Smith Town-Clark of Southampton, Case. brought an action upon the case against one Cornelius an Attorney of this Court, and show, 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 proceed 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 alleged 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 therefore judgement was given for the Defendant. And this Case was moved again by Hitcham, the first day of Trinity Term next, And then judgement was affrmed. Hil. 9 Jac. Edward's versus Laurence. Trin. 9 Car. Rot. 2488. Suff. Rakehell Edward's brought an action of Trespass against Richard Laurence for breaking of her Close. Trespass. The Defendant in Bar to the new Assignment, plead, Traverse of Seisin. that before the time of the Trespass supposed to be done, one Francis Tayler was seized in Fee of the Tenements whereof, etc. and so being seized died, whereby it descended to Francis his Son and Heir, who being seized thereof 8 Car. demised it to the Defendant for two years, by virtue whereof he entered, and gives colour to the Plaintiff by a Grant made to him by Francis the Father, where nothing passed thereby, and so justify. The Plaintiff replied, that long before Francis Tailor the Son had any thing, one Francis Tayler Grandfather of the said Francis was seized in Fee, and before the time of the Trespass supposed, viz. 8 Jac: in consideration of a Marriage to be between the said Francis his Son, and the Plaintiff, for her jointure made a Feoffment thereof 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 shown the marriage, and that by force of the Statute of 27 H: 8. they were seized ut supra is limited, Absque hoc, that the aforesaid Francis Tailor the Father of the aforesaid Francis the Son, died seized 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, etc. unde, etc. whereupon the Defendant demurred. Vide 3 H: 6, Brook Traverse, 30 H: 6, 7. Brook Traverse 359. In Trespass the Defendant plead his Freehold, the Plaintiff plead the dying seized of his Father, and that he is Heir and entered, and that the Defendant disseised him, the Defendant traversed the Disseisin, and not the dying seized of his Father, and good, vide the said Book of 30 H: 6. 7. by Prisot, if I in Assize plead that my Father died seized in Fee, & that I entered as Son and Heir to him, and was seized until by R. disseised, who enfeoffed the Plaintiff, upon whom I entered, here the Disseisin is not traversable, but the dying seized, vide 33 H: 6. 59 Wangford put this case, In Assize if the Defendant plead that his Father was seized and died seized, and give colour to the Plaintiff, the Plaintiff ought to traverse the dying seized, and not the possession of the Father, which is the cause of the dying seized. Vide 30 H. 6. fol: 4. Entry in nature of an Assize, the Defendant plead that W. was seized in Fee, and enfeoffed him, and give colour, the Plaintiff replies that W. was seized in jure Uxoris, and that he had Issue, and his Wife died, and he was Tenant by the Courtesy, and made a Feoffment, sans ceo, that W. was seized 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 seized 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 jointly 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 Sergeant 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 judgement should be given for the Plaintiff. Pasch. 10 Car. Daw versus Palmer. Case. JOhn Daw Plaintiff against William Palmer, in an action upon the Case, and count, that whereas he was a Fuller, and had used the Trade of Falling, and thereby acquired his livelihood, and was of good Credit, Words. etc. The Defendant said of him, Trust him not, for he 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 jurors found for the Plaintiff, and gave entire Damages. And it was moved in Arrest of judgement, that the first words were not actionable, and then the jury having given entire Damages, the Plaintiff should not have judgement 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 judgement. 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 Innkeeper, Go not to such an Inn, for he is so poor that you can have no good entertainment. Of an Attorney, Use him not for ●e will cousin you All these words are actionable. He will be a Bankrupt within seven days. 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 judgement given in the King's 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 judgement for the Plaintiff. Mich. 10 Car. Deans Case. DEane being rob in an Hundred in Kent, brought an action upon the Statute of Hue and Cry, and a special Verdict being found, t●● Dourt intended was, If one be assaulted to be rob in one Hundred, Hue and Cry. and he escape and fly into another Hundred, and the Thiefs instantly pursue him, & rob him there, if the Hund. in which he was rob 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 chargeable. 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 whereas one Edw. Loft had brought an action of debt for 30 l. against him: And thereupon such process was, that a non pros. was entered, & costs of 30 s. assessed for the now Plaintiff, An action of the case for ● entering Judgement after non pros. the now Defendant being Attorney for the said Ed. Loft having notice thereof, unduly and maliciously procured a judgement to be entered for the said Ed. Loft, against the now Plaintiff, & sued execution against him, whereby he was taken and imprisoned, until he was delivered by a writ of Supersedeas. The Defendant Protestando, that there was no such judgement for the said Edward Loft, against the said now Plaintiff, nor that he was taken in Execution thereupon, for plea saith, that there is not any Record of the said Non pros. The Plaintiff replies, that at the time of the said judgement entered for the said Edward Loft; And when the now Plaintiff was taken in Execution and imprisoned thereupon, the said judgement 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 judgement de non pros. as the said judgement of thirty pounds' Debt against the now Plaintiff were evacuated, whereupon 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 judgement, the Court gave judgement 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 judgement for Edw. L. after a Non pros. entered for the Defendant: And though the judgement was erroneous, yet the now Plaintiff was vexed and imprisoned thereby, which indeed is the cause of this action. 2. The taking thereof unlawfully, when the first judgement 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 judgement de non pros. but that the Defendant had unlawfully procured a judgement, and taken Execution thereupon, and procured the Plaintiff to be taken in Execution and Imprisoned, this is cause of action: And to that he hath not answered, and therefore he ought to have pleaded Not guilty to that which he takes by protestation. judgement 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 join 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 join 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 join in a Writ of Waste. 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 joining of him in Reversion altars it not, for that amounts to nothing 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. justice Crook differed in opinion. Mich. 11 Car. Lashbrookes' Case. Somerset. LEwes Lashbrook an Attorney of this Court, brought an action of Trespass against I. S. for entering into his house and breaking his Close: And in the new Assignment he alleged the Trespass to be in a house called the Entry, and in a house called the Kitchen, and in his Garden, and in one Close called the Court. The Defendant as to the force, etc. and to all besides the Entry plead Not guilty; And as to his entry into the Court and Kitchen, 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 Trespass, and had so proceeded that he recovered, and had execution directed to the Sheriff of Somersetshire, and thereupon a Warrant directed to four special Bailiffs, 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 entered into the said houses called the Entry and Kitchen, and the Tenements aforesaid of the new Assignment, to speak to the Bailiffs, and to warn them to keep her safe: And as soon as he could he returned, whereupon 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 overruled, for he justified in the tenements aforesaid of the new Assignment. 2. The second was, that the Warrant to the Bailiffs was to all, and not Conjunctim and Divisim, and therefore 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 justice, 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 judgement was given for the Defendant. Hil. 11 Car. Davies Case. Hereford. 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 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 says not that he would do it. judgement pro Defend. Mich. 7 Car. Rot. 1097. Alston versus Andrew. Suff. 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, etc. 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, etc. The Defendants demand Oyer of the Obligation, which is entered in haec verba, and plead that Francis A. in the said Writing named, after the making thereof, made the said Francis Andrew and Barb. A. his Executors and died: And that the said Francis A. accepted the Burden 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, etc. whereupon 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, whereby it appears, that one John Simcocks was obliged to the said Trugeon jointly and severally with the said Scrivin, Quibus lectis & auditis, the Defendants said, that the said Simcocks died intestate, and that the Administration of his Goods was granted to the now Plaintiff, who accepted the Burden of the Administration, and Administered, the Plaintiff demurred, and judgement 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, whereby it appears, that the Defendant and one John Dorchester were obliged jointly 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 Administered all the Goods of the said John Dorchester. Demurrer and judgement for the Plaintiff. And in this case it is not shown, that the said Francis and Peter, or any of them proved the Will of the said Obligee, or that they administered 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 shown: And the said Francis Executor of the Obligee, and also of the Obligor, refused to be Executor to the Obligee, and never Administered, 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 judgement appears. This case had been often argued by Sergeant Hedley, and of the other part by Sergeant Hitcham, and affirmed, that once judgement was given for the Defendant, but it yet depends. Trin. 12 Car. MEmorand. Upon 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. King's Bench, and marshalsea, 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 Marshal 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 judges, should consider by what way it might be done: And the eighteenth day of June we attended the Lord Keeper at Durham-house: And thereupon 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 judges, besides myself.) That these abusive Habeas Corpus were not lawful, and that the Warden and Martial 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 follows was subscribed. WE are of Opinion, that the Writ of Habeas Corpus is both Ancient and Legal; But as the Writ doth not, so no Rule can Authorise the Keeper of the Prison to give liberty to his Prisoner, by colour of such Writ, but the same is an abuse against Law, and an Escape in the Keeper, if he let the Prisoner go by such Writ. We find, that neither in the twenty fourth year of Eliz. when the Term was Adjourned to Hertford. Nor in the 34. of Eliz. in which year it was Adjourned to Hertford. Nor in the 35. of Eliz. in which year it was Adjourned to St. Alban. Nor in 1 Jac. in which year the Term was Adjourned to Winchester. Nor in the first of King Charles, in which year it was Adjourned to Reading. (In all which years there were great and dangerous Infections of the Plague) there was no such course to set Prisoners out of Prison by Habeas Corpus; but we find it a Novelty begun of late years. But We think, that if the danger of Infection shall grow so great, as it shall be found necessary to provide for the safety of the Prisoners (who may at all times provide for themselves by paying their Debts, and yielding obedience to Justice) than a course may be taken that some certain house may be assigned for the Warden of the Fleet, in some good Town, remote from the Infection, and the like for the Marshal of the King's Bench, in some other Town, where they may remove such Prisoners as have been Petitioners to his Majesty, and there keep them as Prisoners, Sub arcta & salva Custodia, as they should be kept in their proper Prisons, and not to be as Housekeepers in their own houses; and by this means they will have the like to avoid the Infection, as other Subjects have, and not make the Infection a cause to abuse their Creditors, or delude the course of Justice. John Bramsion 1. Richard Hutton 2. George Crook 3. George Vernon 4. Francis Crawley 5. Humph. Davenport 6. William Jones 7. Thomas Trevor 8. Robert Barkley 9 Richard Weston 10. To Sir John Bramston Knight, Lord chief Justice of England. My very good Lord, I Have acquainted his Majesty with your resolution, and your Brethren, about Writs of HABEAS CORPUS, his Majesty doth exceedingly approve the same, And hath commanded me to let you know, that his Majesty would not recede from that which you have certified, And prays you and the rest of my Lords the Judges, to observe it constantly, attending to that resolution under your hands: Hampton Court, 19 June, 1636. Your Lordships assured Tho. Coventrey, C. S. Mich. 14 Car. MEmorand. That 28. Aprilis, 14 Car. justice 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, judgement should be given against the King. Afterwards, viz. 4. Maij. Thomas Hanson Bachelor of Divinity, and Parson of Creak in Northamp. came to the Court of Common Bench (justice Hutton, and justice 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 justice Crawley; and after by the direction of the King, he was indicted in the King's Bench, and convicted and fined to five thousand pounds to the King: And justice 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 judges upon conference concerning the Lord Digby, That when any Peer shall be proceeded against for Treason, that aught to be by Indictment, and that being done, Where trial of Treason by the Statute of 3 Jac. cap. 4. shall be, and how. than 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 tried but by Indictment, to be taken before the justices of Assize, and Gaol-delivery, where the party was taken, or before the justices of the King's Bench, and Law, Custom, Statute, or usage to the contrary notwithstanding; And so it cannot be tried by the Statute of 35 H: 8. cap: 2. in what place or Shire that the King's Bench shall be, for this Statute had for this Treason prescribed a special form of Trial, 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 tried in the place where he is taken, which is the place where he is imprisoned, vide 2. Inst. 49. Trin. 12 Car. Queries concerning Aliens. Queries upon the Statutes of 1 Ris. 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, journeymen, and Servants. 2. Whether Aliens made Denizens, may use any handicraft within the Realm, otherwise then as Servants to the King's Subjects. Memorand. That on the seventh day of July, We met at Sergeants Inn in Fleetstreet (Mr. Attorney-general being there) and We debated the matter, and upon perusal of the Statute of 1 R: 3. cap: 9 and the other Statutes: And upon some misrecital 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 showing 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 sudden, upon these Questions at this time, nor unless the Parliament Roll might be seen. But upon perusal 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. unless 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 Majesty's Attorney General present: Sir John Bramston chief justice of England, Sir John Finch chief justice of the Common Bench, Sir Humphrey Davenport chief Baron, Baron Denham, justice Hutton, justice Crook, Baron Trevor, justice Crawley, and Baron Weston, the other judges 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 judgement; And it seemed to Lord Finch, Hutton, and Vernon that the action lay not, without showing 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 usual 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. But justice Crawley doubted of it at first, because that it was alleged, that it had been adjudged in the King's Bench, that an action lies for calling one Witch; But afterwards he said, that he had spoken with the justices of the King's Bench of their reason, who said, that they adjudged no such thing, unless 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 receipt 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, etc. 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 thereupon Demurrer. And adjudged a bad Plea, and against his former Issue: And the said Appowell by whose hands he received the said sum, 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 thereof. An. 2. Car. MEmorand. That the 19 day of May, An: 2 Car. all the judges being assembled at Sergeants Inn in Chancery Lane, by the commandment of the King, the Attorney General propounded, In what cases a prisoner, arraigned shall have Council. that the King would be satisfied by our opinion, Whether any person which is arraigned of Treason of Felony, aught by the Fundamental Laws of this Realm to have Council; 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 Council, unless it be upon matter in Law, as where he demand Sanctuary, or plead any special 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 Council in an Appeal of Murder, yet if he be nonsuited, and the party be arraigned upon the Declaration, than he shall have no Council. Also it was resolved, that when the party who prosecute, suppose that the Grand jury will not find the Invictment, and therefore requires that the Evidence should be given publicly to the jury at Bar (which is sometime done) yet the party who shall be indicted, shall not have Council. And the Attorney General was commanded to report our opinion to the King: And this happened to be demanded upon the general inconvenience that might after ensue in the Case of the Earl of Bristol, to whom the King had allowed Council. Mich. 3 Car. MEmorand. That the fifth of November, at Sergeants Inn in Fleetstreet, there assembled the Lord Hid, Lord Richardson, Lord Walter, justice Doderidge, Baron Denham, justice Hutton, justice Jones, Resolves concerning Soldiers. justice Whitlock, justice Harvey, justice Crook, justice Yeluerton, and Baron Trevor, to consider of a Case which was propounded, which was; One receives Press-money to serve the King in his Wars, and is in the King's Wages, and with others is delivered to a Conductor, to be brought to the Seaside, and withdraweth himself and runneth away without licence. The Question was, if it were Felony. And time being given before to advise concerning it, all agreed besides Yeluerton and myself 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 lieutenants, 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 Soldier, yet this name Conductor, with whom it is so agreed by Indenture to conduct the Soldiers, 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 licence upon just cause to proceed. It was said, that they used to send Captains into the Country, but then they were so chargeable to the Country, and full of disorder, that upon complaint of the justices of Peace, about 43 Eliz. this course was invented, viz. That the Deputy Lieutenants should provide for them that were pressed, for Coats and Conduct, and they sent their Soldiers 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 clear, yet there are many Circumstances which ought to be proved, and that are loft to the discretion of them before that he should be tried. It was unanimously agreed, that if one takes Press-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 Yeluerton & I were of opinion, that this new name newly invented, is not Captain within these penal 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, than they shall: As to kill his Mistress, is within the words, for Mistress is Master. Another reason was, that the Statutes provide punishment for Captains which want of their number, or which pay not their Soldiers within six days after they have received their pay, upon pain of forfeiting all their Goods: And the Statute did not intent other Captains in this point, than was in the former and latter part thereof. But admitting that a Conductor is such a one to whom the Soldiers are delivered by Indenture with all Covenants usual, viz. To pay to them their Wages, and to convey them to their appointed place, and that he may give licence to departed; 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 licence from the Captain Felony, and the Statute 3 H: 8. without licence from the Lieutenant: And the Statute of 7 H: 7. makes the trial to be in the County where they shall be taken before the justices of the Shire, as they may try other Felonies within their Commission: The Statute of 3 H: 8. makes their trial before the justices of the County, where they are taken; and this being a new Felony and made tryable against the Common Law (which appoint trials by jurors of the County where the Fact is committed) and appoint a special judge, viz. justices 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 justices 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 judge certify the Concord takes Febr. 14. which is two days 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 powel. JOhn Jones Plaintiff, against James powel Defendant, in an action ●● on the Case for a Nuisance, count, That the Plaintiff, 10. August, 1 Caroli, was, and is, and for forty years' last passed, hath been possessed for divers years yet during, of a Message, 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, the Defendant the said 10. of Aug. erected a Brewhouse, and a Privy in the said house, and burned Sea-coles in the said Brewhouse, so that by the Smoke, stench, and unwholesome vapours coming from the said Coals 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 judgement, 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 Air 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 lieth expressly. 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 Neighbour's lights are thereby 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, etc. ibid. morari non audebat. 13 H: 7.26, An action lieth against a Glover, because he with a Lime-pit so corrupted the water, that the Tenants departed. F. N. B. 185. b. A Writ lieth to the Major of a City to cleanse the Streets from filth, whereby infection might grow. By which cases it appeareth, that although Sea-coal be a necessary Fuel 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 prejudicial to their Neighbours. And in this Case the jury found that this new Brewhouse 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 alleged. And upon Conference and Consideration of the Case, all the judges did concur that judgement should be given for the Plaintiff. THE TABLE Reciting the heads of all the PRINCIPALS CASES. in this BOOK. A Account, payment by the appointment of the Plaintiff, is no good plea before Auditors, where the issue was Ne unque receivor 133 Acceptance of a new Lease makes a surrender 104 Action of the case for giving evidence 11 Action brought by the Committee of a Lunatic 16 Action by the Feme for Frank-bank before admittance 18 Action brought for Rent by the Husband of a Feme to whom the land was granted by a former Husband by his Will, until the Daughter of the Devisor came to the age of eighteen years, with a Condition 36 Act on brought against an Attorney for procuring a Judgement to be entered against the Plaintiff, and a special plea thereupon 125 Amendment in a Judgement 41 Amendment, where it shall be 41, 42, 56, 81, 82 83, 84. Act of the Court shall be amended 92 Amendment shall not be of the Pledges left out in the Imparlance Roll, upon Bill, by an Attorney 92 Amendment of the Proclamation of a Fine 122 Annuity to commence after eight years contained in the Will, and no mention thereof in the Will by which it is given 32 Annuity out of the clear gains of the Allome Mines 33 Arbitrement of all actions, until the date of the Award. 9 Administrators cannot plead that the Intestate died outlawed 53 Advowson in gross for life 88 Assumpsit by the Husband to the Wife before marriage 17 Assumpsit upon request to procure assent 39 Assumpsit in consideration to maintain Suit in defence of a Common, and the Title thereof 89 Assumpsit in consideration of forbearance 46 Assets need not to be alleged in an action upon the case against Executors 27 Arbitrements 29 Assumpsit lies not for Rent 34 Assize of Darrein presentment abates by a Quare Impedit 3 Avowry for Homage 50 Attaint, how a Prisoner convicted and let at large shall be brought to execution 21 Avowry for Rent granted to the Father, without alleging that it was arrear after the death of the Father 55 B. BAil, insufficient taken by the Sheriff no action lies for it 120 Bail discharged where the Principal died before the return of the Capias 47 Bail, action lies not against the Sheriff for taking insufficient bail 77 Baron and Feme, at Exigent, whether the Feme shall have Supersedeas alone 86 Bankrupt, how the distribution of his Estate shall be 37 Bankrupt upon a fraudulent conveyance 42 Bar, recovery in trespass for taking of Goods is no Bar to an action of the case of Trover 81 Buggery 116 Bylawes 5 Burglary 20. 33 C. CHallenges 24 Condition not to be assistant to another in any action; and after he bring a Writ of Error with another upon a judgement against him and the other 40 Condition to levy a Fine, who ought to do the first act 48 Condition to perform Covenant, etc. concerning Rent, where demand is necessary inde 114 Condition to resign a Benefice upon request 111 Consideration of forbearance 46. 108 Consideration to save one harmless, if he (being an Innkeeper) would safely keep a Prisoner 55 Consideration to confess a judgement, and a promise thereupon to defer the entry thereof 63 Consideration, that if the Obligor would pay the money the Obligee would deliver up the Bond 76 Consideration, Ex post facto 84 Consideration, that whereas one was indebted to the Plaintiff in seven pounds, for keeping an Horse, if the Plaintiff would deliver the Horse, the Defendant promised to pay the seven pounds 101 Conspiracy 49 Copyhold may be extinguished without actual surrender 65 Copyhold land enclosed, where the Lord hath a Field course, if it be a forfeiture or no 102 Costs upon Non-suits where the Plaintiff hath no cause of action 16 Costs shall not be allowed upon the Statute of 5 Eliz. for Perjury 22 Costs against an Informer upon a Statute repealed 35 Costs shall not be allowed against Executors 69 Costs shall be allowed against Executors upon Nonsuit in a Writ of Ravishment of Ward 78 Council, to what persons it shall be allowed, to Prisoners arraigned 133 Counter-plea to the view 44 Custom of London to give security for the payment of Orphan's Portions 30 Custom of Copyholders to make a Lease for years 101 Covenant of an Apprentice, and when an Infant shall be bound thereby 63 D. DEvise to a Feme, a term upon condition 36 Debt against a Sheriff for moneys returned levied by him 11. 32 Demand not necessary in Avowry for a Rent-charge 23 Demand of Rent with a Nomine poen●e 114 Demand of Rent where necessary, or not 42 Discontinuance, where Tenant in ●ail, and he in Reversion join in a Lease pur aut vie 126 Devise of a fee after a fee 60 Devise, and what said in tail inde 85 Dower barred by Jointure 51 E. ELegit, the Sheriff ought to deliver the Moiety by meets and bounds 16 Essoign, though the Writ be not returned 28 Essoin upon return of an alias Summons 43 Essoine shall not be allowed in Dower after Issue 69 Error in omission of additions 41 Estate derived from one, and shows not how 15 Ex●cutors, to what intents they shall be before probat of the Will 30 Executor, the same person made by the Obligor and by the Obligee 128 Execution shall be de bonis testatoris, where the Executors break the Covenants of the Testator 35 Execution shall not be awarded upon judgement given in the grand Sessions of Wales 117 Extortion 53, 78 Estrays, where they may be fettered 67 F. FIne to two, and the Heirs of one, to the use of them two and their Heirs 112 Fine de Oct. puris. where the Caption was 14. February 135 G. GRant of an Advowson without alleging it to be by Deed 54 Grantee of a Rent-charge takes a Lease of part of the Land, and after surrenders it, the Rent shall be revived 94 Tenant for life with a Remainder to him in tail expectant, and remainder to him in fee 96 Grant a Rent in fee, and after had fee by Fine 96 H. HEriot, where the Lord shall lose it, when the Tenant hath none 4 Habeas Corpus, liberty cannot be given to a Prisoner thereby 129 Habendum, void to parties not named in the Deed 88 Hue and Cry, and Debt upon that Statute 125 I. INdempnitas nominis and supersedeas inde 45 Infant, where he shall appear by Guardian, and where by Prochein amy 92 Inditements for Rape and Buggery 115 Inns, how they may be erected, or restrained 99 Information against a Subject for Extortion 53 Information where it shall be brought 98 Intermarriage, where it is a release of a promise, etc. before marriage 17 Jurisdiction, a Plea thereto where part of the land lies in the Cinque Ports 74 Judgement, to what day it shall have relation 95 Jointure bars Dower 51 L. A Lord, where he may be sworn 87 Lease by Feme in special tail 84 Lease by Baron and Feme, without reservation of any rent 102 Lease, where the acceptance of a new Lease makes a surrender of the former 104 N. NOtice where it shall be upon a promise 80 Nuisances 136 O. OUtlawry where it may be pleaded 53 Obligation by the Sheriff where void 52 Office of a Park-keeper is good, if the King dispark the Park 86 Obligation to levy a Fine before a day, who shall do the first act 48 P. PArdon 79 Parliament, what shall be said a Session 61 Pleas several, and by several Defendants upon joint Contracts 26 Prescription for a way, and no place to which, etc. issue joined on the Prescription 10 Prescription to have Herbage 45 Prescription to have Deer in discharge of Tithes 57 Plea, as Heir, and shows not how 15 Prescription to have Common omni tempore anni, without saying quolibet anno 1 Plea of Grant of an Advowson, without alleging by Deed 54 Prohibition 22 Prohibition to Chester 59 Q. QVire Impedit. etc. 31. 36 Quid juris clamat 89 Quod permittat 28 R. REcord shall be good, where the conveyance is delivered to be enrolled, but is not enrolled 1 Release of land devised before it be vested 60 Rationabile parte bonorum 109 Recovery, if the Town be omitted therein the Land doth not pass 106 Record, matter of Record tried per pais 20 Remainder, where it shall be said Contingent 118 Rent tendered at the day 13 Rent, Assumpsit lies not for it 34 Rescous by the Plaintiff in the first action 98 Request, where necessary 2. 73. 106 Return insufficient of a Writ of Quare Impedit 24 S. Statutes What shall be said a Parish Church within the Statute of 43 Eliz. 93 Resolves upon the Statute of 3 H. 7. cap. 2. 2 Resolves upon 35 Eliz. cap. 1. concerning Sectaries 61 Resolves upon 5 Eliz. concerning Aliens 132 Resolves upon the Statutes concerning Soldiers 134 Upon the Statute of Hue and Cry 125 Statute-Merchant without day of payment 42 Statute of Limitations extends not to Arrearages of Rent reserved upon Indenture 109 So De rationable parte bonorum 109 Debt upon a poenall Statute is not gone by the death of the King 82 Sci. fac. against a Sheriff to have Execution of moneys returned levied by him 32. 11 Sci. fac. by Baron and Feme, the death of the one shall abate it 37 Sci fac. against the Sheriff for taking insufficient Pledges 77 Surrender by Baron and Feme of the Estate of the Feme for life, and the King in consideration thereof makes a new Lease 7 Suspension of things where they may be revived 94 Supersedeas by the Wife upon an Exigent against Husband and Wife 86 T. TEnder of Rent at the day 13 Tithes, and action thereupon 121 Tithes of Wood, and small tithes 77 Trespass by Baron and Feme, for breaking the Close of the Baron, and for the Battery of the Wife 59 Trial where nul tiel vill. it pleaded 31 Traverse upon Traverse 96 Traverse of a day 121 Town shall be intended whole Town 74 Traverse of Seisin 123 Tenure by Castleguard is Socage Tenure 91 Trial of Treason how it shall be 131 Trial of an action of Account upon receipt in two Counties 111 Trial of matter of Record by the Country 20 Trover and Conversion, the Defendant justify without confession of the Conversion 10 Treason, persons attainded thereof, and set at large, how they shall be brought to execution 21 V. VEnire fac. from a Town within a Parish 6 Ven. fac. from divers Towns 27 39 Ven. fac. where nul tiel vill. is pleaded 31 Ven. fac. of a Visne from a place known in a Town, without making it from the Town 106 View counterpleaded 44 View upon a Quod permittat 28 Usurpation 66 Judgement in Dower upon Vourcher 71 W. Water, increase thereof in Westminster Hall 108 Waifes where they may be fettered, and other learning thereupon 67 Warrant to four, and two only execute it 127 Warranty lineal bind not without Assets 22 Wast in cutting wood to make Cole-mines 19 Waste, and inquiry of damages thereon 45 Waste, how the Writ shall be made where a Lease for life is made the remainder in fee 110 Writs, and filing thereof 112 WORDS. I. S. is in Leicester Gaol for stealing a Horse 2 Welsh words 8 He is a cozening Knave, and so I have proved him before my Lord Major for selling of me a Saphire for a Diamond 13 George is a cozening Knave, and cozened a poor man of a hundred pounds, and all the George's are Knaves 14 He is a cozening Knave, and hath cozened me of forty pounds 14 He is a false Knave, and keeps a false Debt-book, for he chargeth me with the receipt of a piece of Velvet, which is false 14 Thou art a pilfering Merchant, and hast pilfered away my Goods from my Wife and Children 14 She is a cozening woman, and hath cozened one of her Neighbours of four pounds and I will bring good proof of it 14 I doubt not but to see you indicted for Sheep stealing 18 Forgery spoken of an Attorney 29 Thou hast forsworn thyself in the Council before the Marches 34 Thou art a filching fellow, and didst filch four pounds from me 34 I charge thee with Felony for taking money out of I. S. pocket, and I will prove it 38 I have matter enough against thee, for I. S. hath found Forgery against thee, and can prove it 41 Forsworn where actionable, and where not 44 He is a Bankrupt, spoken of one not a Tradesman 45 He is a Bankrupt, spoken of a Baker, without alleging him to be a common Baker 49 Cozening Knave, whether actionable or not 52 I will have him hanged for robbing in the highway 58 Thou art a Thief, and hast stolen my Corn 15 He is as arrant a Knave as any in England 72 I doubt not but to prove that the Plaintiff hath spoken Treason 75 Thou art a common Barretor, a Judas, a Promoter, spoken of an Attorney 104 Thou art a Thief, and hast stolen Passions Lamb, and marked it, and he denied it 110 Thou art a Thief, and hast cozened my Cousin Baldwin of his Land 113 I will charge him with flat Felony for stealing my Ropes from of my Shop 113 Thou didst bring Faggots a mile and half to burn the Collier's 123 Thou hast made many false Certificates to the Major and Burgesses in that Court 123 Trust him not, he is not worth four pence, of a Tradesman 125 If I list I can prove him perjured 127 Thou old Witch, thou old Whore I will have thee hanged, if I can do it 132 I accuse Mr. Justice Hutton of high Treason 131 He is a Witch, and an Enchanter, and hath bewitched the Children of Strong 13 Errata. PAge 1. line 28. for Bormis Inn, read Bozuni's Inn, p. 3. l. 19 r. grant, p. 7 l. 25. blot out by. p. 13. l. 2. r, Witch, p. 22. l. 20. for to the Secondary, r. secondarily, p. 24. l. 27. r. of p. 28. r. Quod permittat, p. 49. l. 8. r. entire, l. 24. r. Ignoramus, l. 36. r. Lord Hobart, the same p. 54. l. 18. the same, L. 38. p. 56. l. 42. r. Vicarage, l. 54. r. folk, p. 61. l. 9 r. vested, p. 65. l. 37. r. Lord Hob. p. 76. l. 38. r. sold, p 81. l ●●. r. Justices, p. 88 r. Hartopp, p. 99 l. 25. r. unwholesome, p. 104. l. 35. r. Perpoint, l ult. r. demised, p. 105. l. 23. r. Lessee. l. 33. after One, add Grants proximam Advocationem to and after, l. ult. r. admitted, p. 107. l. 10. r. founded, l. 15. r. trimming, p. 109. l. 24 r. objection l. 25. r. Action, p. 110. l. 14. r. property, l. 19 the Tertenant, r. and held the said lands, l. 37. r. dimisione, p 112. l. 10. r. time, l. 24. put out which granted, p. 214. l. 8. r. agreed, l. 35. r. rendered, p. 116. l. 5. r. Georges, p. 117 l. 24. r. Certiorari, p. 119. l. 23. r. her, l. 35. r. to, p. 130. l. penult. r. according.