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, judgments, and resolutions in points of law in the severall raignes of King James and King Charles / being written in French in his owne hand, and now faithfully translated into English according to order.

THE FIRST YEAR OF KING CHARLES.

Termino Pasch. Hitcham versus Brook.

SIR Robert Hitcham Serjeant at Law, and to the King,* 1.1 brought an action upon the case against one Brook, a Iustice of the Peace, and which had been Sheriff of Suffolk; and count, that he for divers years last past, had been one of the Kings Serjeants, and had demeaned himself well and loy∣ally in the discharge of his duty, and had gained good opini∣on, and had acquired by his practice a good Estate for the maintenance of him and his Family; The Defendant said,* 1.2 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 Ar∣rest of Iudgment, that these words are not actionable.

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

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

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

4. Also it is not said what treason, and it may he high or petit trea∣son:

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,* 1.3 one between Johnson and Atewood, 8 Eliz. Thou hast spoken Treason, and I will hang thee for it, adjudged actionable. The other was be∣tween Pewall and Vardoffe,* 1.4 9 Jac. Thou hast spoken treason, and I will prove it, adjudged actionable.

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

Flight versus Gresh.

* 1.5THomas Flight brought an action upon the case against Gresh; and count, that wheras the Plaintiff and one Baleman were bound in an Obligation to the Defendant,* 1.6 for the payment of such a summ at such a day: The Defendant in consideration that the Plaintiff would pay to him the laid summ at the day, assumed to deliver the Obligati∣on to the Plaintiff, and shewed that he had paid the money at the day, and the Defendant did not deliver it, but after sued it and recovered, and had the Plaintiff in prison in execution by the space of a year.

The Defendant protestando, that he did not assume, for plea saith, that the Plaintiff did not pay it; and therupon Issue, and found for the Plaintiff. And it was moved by Serjeant Gwin, that this action lies not for want of consideration, for the Plaintiff did nothing but that which he was obliged to do, and no profit to the Defendant, for if he had not paid the summ, the Obligation had been forfeited: And he re∣sembled it to the case of 9 E: 4. 19. An accord (in Trespasse) that the Defendant should deliver to the Plaintiff his Evidences, and permit him to enter into his Land, is no good Bar: So in an Arbitrement, 12 H: 7. that the one permit the other which was disseised to enter, and that he should give to him his Charters and Evidences, is not good: And he vouched one to be resolved in the Kings Bench,* 1.7 between Greenwood and Becket, where one had forfeited three Bills, in con∣sideration that the Plaintiff will pay the three severall summs three daies after, he would deliver them to the Plaintiff: And the Court was of opinion that it was no sufficient consideration.

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

And the opinion of the Court was, that the action lay, for (for any thing that appears) the monies were paid before the time that in Law they might be paid, viz. before the setting of the Sun: And it is with∣out 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 consi∣derations

therof, promise to pay him five pounds, to abate five pounds, or to deliver an Obligation, this is good: And a voluntary promise to do that which is in good conscience good and just for him to do, shall bind him, and the rather because he had benefit, viz. to be sure of the performance: And the forfeiture is but means to obtain the principall summ: And if one had Iudgment, and in consideration that he will not sue execution, the other promise to pay, it is good: And because that in this case it appears, that by the non-performance of this pro∣mise the Plaintiff had prejudice, and the Iury had found solvit, the Plaintiff had Iudgment.

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

EDmond Trevors brought a Scire facias against Michelborne Sheriff of Surrey,* 1.8 for the returning of insufficient Pledges in a Replevin brought by one Ray against the now Plaintiff, in which the said Ri∣chard Ray made default, wherupon a Retorn. habend. was awarded, an Averia elongata returned, and then a Withernam, and then a Ni∣chil, &c. And for this taking of insufficient Pledges, this Scire facias is brought, upon Westminster 2. cap. 2. And the Defendant demurred,* 1.9 vide the lake President, Hil: 11 Jac. Rot. 3563. between Somerford and Beamont.

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

Southamp.

SIr Richard Uvedall brought an action of Trespasse against William Tindall Clark, Vicar of Alton,* 1.10* 1.11 and John Loveland for taking bona & Cattella, and count for the taking of two Carectac. glaci, Anglice Wood: And upon Not guilty pleaded, the Iury gave this speciall Verdict; Viz. For the Moyety of a Lead of Wood, Si videbitur Cu∣riae quod decimae glasi ne sunt minutae decimae, then the Defendants not guilty, but si sunt minutae decimae, then they are guilty.

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

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

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

* 1.12Pasch: 3 Jac. in the Kings Bench, Beddingfeilds case, Farmer to the Dean and Chapter of Norwich, who had the Parsonage Impropriate, and had used to have Tithes of Grain and Hay, and the Vicar had the small Tithes: And a Feild was planted with Saffron, which contain forty acres: And it was adjudged that the Tithes therof belong to the Vicar.

* 1.13There 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 Vi∣car as Minutae decimae.

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

Hil. 1 Car. Townley versus Steele.

FRancis Townley, and three others, the Executors of William Pea∣cock, brought a Writ of Ravishment of Ward against Richard Steele and Anne his Wife, for the Ravishment of the body of Ralph Smith Cosin and Heir of Ralph Smith;* 1.14 and count of the Tenure by Knights-service in Ralph Smith of William Peacock, and that Ralph Smith died, the said Ralph his Cosin and Heir being within age; and that William Peacock the Testator seised of the body, and died possessed therof, and made them his Executors, and they being possessed of the said Ward, the Marriage of whom belong to them, the Defendants Rapuere illum & abduxere: And upon Not guilty pleaded, the Iury was at Bar, and the Plaintiffs after Evidence were Non-suited.

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

And Iustice Crook argued that they should not have costs, and put many cases, when Executors bring actions, they shall not pay costs, and

so is Common Experience (after the Statutes) which is the best In∣terpreter of the Law: And if it should be otherwise, Executors would be discouraged to bring actions for the debts of their Testator.

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

If Executors have a Lease for years, and they demise it rendring rent, and for Rent arrear they bring an action, it shall be in the De∣bet and Detinet, and they shall pay cost; if they be Non-suited, and yet their Title is as Executors, but it is founded upon their own Contract, so if they bring an action of Trespasse for the taking of Goods which came to their possession, which Goods were in truth tortiously taken by the Testator, and he died possessed therof, and they being Non-sui∣ted they shall pay costs: And Executors in actions brought against them shall pay costs, and if they have no Goods of the Testator, it shall be De bonis propriis. And vide, that upon Contracts made by them, or Rent arrear in their time, the action shall be in the Debet and Detinet, vide Coke lib: 5, Hergraves case. But when Debt in brought by Execu∣tors, 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 Dama∣ges, and therfore costs by the Statute of Glocester cap: 1. and the Sta∣tute of 4 Jac. inlarge the actions, and not the persons.

Hil. 1 Car. Beverley versus Power.

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

Iames Beverley was Plaintiff against Robert Power,* 1.15 and Mary Beverley, and others, which Bill was exhibited Hil: 16 Iac. and the Bill was for scandalous matter not examinable in this Court, and for o∣ther matter which was examinable, and Witnesses examined and publi∣shed: And then the 19. of Febr. 21 Iac. the generall Pardon is made by Parliament, by which all Offences, Contempts, and Misdemeanors,

del 20. Decemb. before (except such Offences, contempts, &c, whereof or for which any Suite or Bill within eight years before was exhibited into the Star-chamber, and there remaining to be prosecuted this last day of this present Parliament:) And afterwards, viz. Mich. 1 Caroli, the Cause came to hearing at the Suit of the Defendant, and upon the hearing Power was fined two hundred pounds; and for the abuse and contempt to the Court for exhibiting the scandalous matter, the Plain∣tiff 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 Ho∣bart, 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 Defen∣dant, and referred it to the opinion of all the Justices. And they all (una voce) except Iustice Harvey (who insisted upon the dama∣ges given to the party, that they should not be pardoned) agreed that the Contempt and Offence for the scandalous Bill exhibited, was par∣doned, 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 Defen∣dant, and the Defendant may have his remedy at Common Law, and the Contempt which is accidentall to the Offence is pardoned, and by consequence the Fine.

Pasch. 2 Car. Crane versus Crampton.

* 1.16CRane brought an action upon the case sur assumpsit against Cramp∣ton, and count, that in consideration of moneys paid, the Defen∣dant did assume to give to the Plaintiff a Ruff-band at the day of his marriage: And he alledged in facto. that such a day, and at such a place he was married;* 1.17 and that the Defendant notwithstanding that he was requested such a day, and a year after the said marriage, had not given to the Plaintiff the said Ruff: And upon Non assumpsit it was found for the Plaintiff, and moved in Arrest of Iudgment, that the Plaintiff had not alledged any notice given to the Defendant of his marriage.

And by the opinion of me and my two Brothers Harvey and Yelver∣ton. Iudgment was given for the Plaintiff; For the Defendant ought to take notice therof at his perill, unlesse he had provided to de∣liver the Ruff after marriage, and after notice therof for if he ought to have notice (no place being agreed upon where it shall be given) then he should be compelled to enquire and to find him, and give notice, and paradventure he could never give him notice. Also it is agreed, if one be obliged to pay to another twenty pounds, within three months after he come from Rome, there shall no notice be given of his return, but the Obligor ought to take notice at his perill: And if it were with a Condition that I. S. (that is not party to the Obligation) shall do such a thing, there shall not be notice: And this case of an Obliga∣tion 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 Kings Bench, between Hodges and Baldwin:* 1.18 But my Brother Crook seemed to be of a contrary opinion, for when the duty arise upon the notice, there notice ought to be. Iudgment pro Querente.

Laicon versus Barnard.

Lincoln.

LAicon Plaintiff against Barnard one of the Attorneys of this Court,* 1.19 for Trover and Conversion of a hundred Sheep, the Defendant said, that he brought Debt in the County Court of Lincoln,* 1.20 against one Hacliff, for two hundred and eighty pounds, upon an Obligation by Iu∣stices, and recovered, and that these Sheep were delivered to him in Execution, as the Sheep of the said Hacliff: And that afterwards and before this action, the Plaintiff brought an action of Trespasse against the now Defendant for taking of these Sheep, Quare caepit & abduxit. And it was found for the Plaintiff, and Damages to two pence: And averred that they were the same Sheep; and the Plaintiff replyed that the Damages found by the Iury, were only for the taking and cha∣sing, and not for the value: And that this Action was for another Tres∣passe, wherupon the Defendant demurred, and it was adjudged for the Plaintiff: for, for any thing that appears (which the Defendant hath confessed upon his Demurrer) it is not for the same Trespasse: Also the Damages of two pence cannot be given for the value of the Sheep: Also the Plaintiff when a Trespasse is done to him, may retake his Goods, and yet he shall have an action of Trespasse for the taking of them: And every taking, viz. (abduxit) import a chasing; and no man will say, that by the recovery in Trespasse, when the Plaintiff had his Goods, that therby the Defendant shall have the property: But it is true, that if the Plaintiff recover the value, therby he waves the pro∣perty, and by this way the Defendant shall have the property, vide 2 R. 3. 14. 4 H: 7. 5. 6 H: 7. 8. and Iudgment for the Plaintiff. Yelverton at first baesitavit, but afterwards agreed.

Pasch. 2 Car. Wades Case.

AN action upon the case was brought by a Feme,* 1.21 as Administra∣trir against the Lady Wade Executrix of Sir William Wade, Non assumpsit was pleaded, the Venire facias was well, but the Hab: Corp. Nisi pr. was entred, the Plaintiff,* 1.22 &c. and the Defendant Executrix of Sir H: Wade, &c. And it was amended by the Court, and there was the difference taken, that when the Nisi prius is so mistaken, that if it should be amended, the Iury should be prejudiced, viz. that it may fal∣sifie their Verdict, then it shall not be amended, but in this case, it is but the Writ by which the Iury is warned to appear: And the autho∣rity

of the Iustice of Nisi prius is not by that, but by the Juras, which was well and as it ought to be.

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

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

* 1.23AN action of Debt was brought by Lionell Farrington, Qui tam pro se quam pro Domino Rege,* 1.24 &c. against Thomas Arrundell, upon the Statute of 23 Eliz. for not coming to Church; and the Defendant demurred upon the Count: And then King James died, And if this a∣ction be abated or not by the death of the King, was the Question.

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

Clotworthy versus Clotworthy. Amendments.

* 1.25SImon Clotworthy brought an action of Debt against John C. Cosin and Heir of Bartholmew C. And the Imparlance Roll is, Quod cum praedictus B. cujus consanguineus & heres idem Johannes est, viz. filius Johannis Clotworthy fratris praedicti B. C. And upon the Plea Roll, upon which Iudgment is given, this space was perfected, and Iudgment for the Plaintiff; and now the Defendant brought a Writ of Error, and it was moved to be amended: And if the Imparlance Roll shall be amended, which is the foundation of the subsequent Rolls, is the question: For it is commonly holden, that the Plea Roll shall he amended by the Imparlance, but not e converso.

Hil. 18 Jac. Rot. 67••. Walker versus Worsley. Amendments.

WAlker brought an action of Debt against Worsley,* 1.26 as Son and Heir of Thomas W. in the Imparlance Roll which was entred, Mich: 18 Jac: Rot: 576. the words which bind the Heir were omitted, viz. Ad quam quidem solutionem obligasset se & Heredes suos, but they were in the Plea Roll: And after Iudgment that was assigned for Er∣ror in the Kings Bench, and it was amended in the Common Bench by the Court, vide there, that it was by the fault and mis-prision of the Clerk, who had the Obligation, and so amendable by the Statute of 8 H: 6. cap: 15. 1.

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

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

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

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

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

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

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

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

Mich. 2 Car. Crocker versus Kelsey

JOhn Canterson and Agnes his Wife, Tenants in speciall tail, had Issue a Son,* 1.27 viz. John, and John the Father died, John the Son le∣vied a Fine with Proclamations to the use of himself in Fee, Agnes leased to John Herring and Margaret his Wife (Lessors to the Plain∣tiff) for one and twenty years, rendring Rent, &c. by vertue wherof they entred: Agnes died, John the Son entred, and afterward the said John Herring and Margaret his Wife entred; And the said John the Son made his Will in writing, and by that devised the Land to Kelsey the Defendant, and another in Fee, and died. John Herring and Mar∣garet leased to Crocker the Plaintiff, who entred, and being ousted by Kelsey, brought Ejectione firmae: And this speciall Verdict being found, Iudgment was given for the Plaintiff; and now affirmed upon Error brought in the Exchequer Chamber.

Mich. 2 Car. Franklin versus Bradell.

FRanklin a Woman servant, brought an action upon the case upon a promise against John Bradell:* 1.28 And count, that wheras she had ser∣ved the Defendant and his Wife, and done to them loyall service, the Defendant after the death of his Wife, in consideration of the service which the Plaintiff had done to the Defendant and his Wife, promi∣sed to pay her thirteen shillings four pence upon request, and alledged request and non-payment; And after Verdict for the Plaintiff, it was moved in Arrest of Iudgment, upon the Book of 13 Eliz. Dyer, that this is no sufficient consideration, because that it is not alledged, that the Plaintiff at the request of the Defendant had served him: Also it was not sufficient, because that it was done after the service performed. And it was answered, that it was a good consideration, and that the ser∣vice was to the benefit of the Defendant: And therfore in considera∣tion 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 harmlesse. And in consideration that the Plaintiff was Baile for the Defendant, he promised to give him a Horse, this is good: And in consideration that I.S. being a Carpenter had well built my house, I promise to give him five pounds. And Iudg∣ment for the Plaintiff.

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

Oxford. 1.

RIchard Hearne brought an Ejectione firmae against John Allen,* 1.29 for two acres of Land in Langham, upon a Lease made by Anne Keene, which was the Wife of Edward Keene; and upon Not guilty pleaded a speciall Verdict was found.

Richard Keene was seised of an house in Chippin-norton,* 1.30 and of two acres of Land there in Fee, and of two acres of Meadow in Langham in Fee used with the said Messuage, which were holden in Socage: And by his Will in writing, dated the 20. May, 30 Eliz. he devised the said house Cuni omnibus & singulis ad inde pertinentibus, vel aliquo modo spe∣ctantibus, 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 De∣visor, and her Heirs for ever: And for default, &c. then to Iohn K. his Cosin, and his Heirs for ever; And by the same Will devised his Goods and all his Lands to Eliz. his Wife, during her Widow-hood, and died. Elizabeth his Wife entred. Thomas the Son entred upon the Wife, and disseised her, and having enfeoffed one Edward K. in Fee died, and Tho. K. also died without Issue: Edward K. by his Will de∣vised the Land to Anne his Wife, the Lessor of the Plaintiff for life, and died, Anne entred and made a Lease to the Plaintiff, Et si super totam materiam, &c. And it seems that the Defendant Allen claim under the Title of Anne K. the Daughter, but that was not found, nor no other Title for the Defendant; and therfore of necessity Iudgment ought to be given for the Plaintiff. And this case was well argued by Crawley for the Plaintiff: And Henden for the Defendant. And three Points were argued.

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

2. If by these words it be an Estate-tail; as in Beresfords Case, Coke lib: 7. fol: 41. 9 E: 3. Fitz: tail 21. 12 E: 3. 7 E: 6. 16 Eliz: in Chapmans case, or a Fee-simple: And yet Yelverton and Crook inclined that it was

an Estate-tail; but Lord Richardson, Hutton, and Harvey to the con∣trary, for an intent against Law shall be void, vide Abraham and Twiggs case, Co••e lib: 7. fol: 41.

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

* 1.31Un supersedeas fuit Mis•• for the Feme upon an Exigent against Ba∣ron and Feme: And upon much debate; it was agreed, that the Feme (for the safeguard of her self from imprisonment) being returned upon the Exigent, or upon the Capias, viz. upon the one Quod reddidit •••• upon the other Caepi, and as to the Husband (Non est inventus) may appear; and so long as the Processe continues against the Husband, she shall have idem dies: But when the Baron is returned utlegatus, she shall be discharged sans idem d••es: And that stands well and racon∣ciles all the Books. But whether she shall have a Supersedeas de non molestando, is doubtfull, for by the 11 of H: 4. 80. and Dyer 271. if the Baron be outlawed, and the Wife W••ived, and the King pardon the Feme, that shall be allowed, and she shall go sine die, and vide 4 E: ••. 34. and 14 H: 6. 14. 13 H: 4. 1. And it seemed by all to be agreed, that the Baron after he purchaseth his pardon, or after he come and reverse the Outlawry, he shall not have allowance of his Pardon, nor his ap∣pearance received, si non qui il amesne sa feme qui par le presumption de leye est amesnable per luy, mes les baron n'est amesnable per le feme, vide 18 E: 4. 4. there the case was, that a Feme Covert was sued as Feme sole, her Husband being beyond Sea, and not known to be alive, and she was outlawed, and then her Husband came again, and brought a Writ of Error for the reversall therof in his name and in the name of his Wife; And there it is said that it is questionable, being that he was not party to the Suit. And then one said, that it would be a good way to be rid of a Shrew. And the Prothonotaries said, that no Supersedeas was ever granted for the Wife in such a case.

Hil. 2 Car. Sir Charles Howards Case.

MEmorand. That the Earl of Marleborough, Lord Treasurer of England, came to Serjeants Inn in Chancery Lane, 6. Febr. and there assembled all the Iustices to have their opinion, upon a Case which was depending in the Exchequer Chamber,* 1.32 upon an English Bill for the King by the Attorney-generall, against Sir Charles How∣ard, for avoiding the possession of a Lodge, and desisting from taking the profits of a Park called Putney Mooreclapp; the Custody of which Park, and three pounds annuall Fee, with the Windfalls, &c. and the

custody of the Lodge was granted to him. The King which now is, by his Charter disparked the Park, and after granted all the D••er to Sir Richard Weston Chancellor of the Exchequer: And whether by this disparking of the Park the office of the Keepership he determined, or no; then whether the annuall Fee be determined; then if the casuall profits, as Windfalls, &c. may be yet taken by Charles Howard who is the Patentes.

And upon debate it was unanimously agreed, that the King might dispark his Park; and that by the disparking therof, the Office of the Keepership is gone and determined: for Sublata causa tollitur effectus, and this Office is not of necessity, and such Offices are not prefumed in Law to be altogether for the benefit of the Patentes, but recipro∣cally 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 Ste∣wardship of a Mannor, and he dismember the Mannor, the Office de∣termines; And if a Corporation grant the Office of Town-Clerk, or of Recorder, and after surrender their Patent, and take a new Pa∣tent, which incorporates them by a new name, all the Offices are determined. It was agreed that the annuall Fee certain remain in both cases, be he discharged, or be the Park disparked, vide 5 E: 4. 9. 4 E: 4. 22. 18. E: 4. 9 Dyer 71. 6 H: 8. Kelway 171. Plowd: Sir Thomas Wrothes case.

The Earl of Lincolns Case.

Star-chamber.

MEmorand. That the Sollicitor Generall moved, that Sir Henry Fines had preferred a Bill against the Earl of Lincoln in this Court:* 1.33 And there was a Commission De dedimus potestatem granted to take his answer upon Oath; and he offered his answer upon his Honor. And the Commissioners returned this speciall matter, and he prayed an Attachment: And this case was propounded to the Iudg∣ges, 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 Jura∣mentum purgationis, and not promissionis; Also it is not demin••tion of his Honor, to be sworn concerning that which he would not have to be put upon his Honor. Also it is a good Rule. Testi non jurato non est credend, in judicio: And Princes are sworn to all their Leagues and Confederacies, which is called Jeram••ntum confirmationis.

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

Wilts.

IN an Ejectione firmae brought by Thomas Winsmore, against Micha∣••l Hobart, upon a Lease made by Edward Long, the Iury gave a spe∣ciall Verdict.

* 1.34William Lord Sturton, seised of the Tenements (in the Count) in Fee, by Indenture demised them to Thomas Hobart, habendum to the said Thomas Hobart, and to the said Michael Hobart, Iohn Ho∣bart and Henry Hobart, Sons of the said Thomas for their lives, and the life of the Survivor of them successively; By vertue wherof the said Thomas entred, and was seised for life. And the Lord Sturton gran∣ted the Reversion to Thomas Long in Fee, to whom Thomas Ho∣bart attorned, Thomas Long devised it to Edward Long in tail, Ed∣ward Long died seised, and the Reversion descended to Edward his Son, the Lessor of the Plaintiff, Thomas Hobart and Henry died, Mi∣chael and Iohn survived, Michael entred, Thomas Long entred upon him, and made a Lease to the Plaintiff, who entred, and was possessed, untill the Defendant ousted him. And Judgment was given for the Plaintiff.

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

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

Hertf.

A Quare Impedit was brought by George Hartox and Cocks against the Bishop of Lincoln,* 1.35 Lord Keeper of the great Seal, Mary Hewes, and David Dublin Clark for the Church of Essington. The Issue being joyned by the Incumbent, upon the Appendancy, the Evi∣dence given to the Plaintiff to prove it was such.

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

The Defend. said, that the said Wil. Took was seised of the said Ad∣vowson, and it defended to William Tooke the Son, and granted the next avoidance, and it came to Mary H••wes who presented the Defen∣dant Dublin, and the Evidence to prove that it was in grosse, was, Hen∣ry the third being seised in Fee of the Mannor of Essinton, made a Lease therof to his Brother for life, and excepted the Advowson, and then up∣on the expressing of the Advowson, upon the Grant of Edward the sixth, and the reservation of severall Tenures; And this was their Evi∣dence.

And Serjeant Henden maintained, that by this exception of the Ad∣vowson, when it was granted for life, made it to be in grosse for ever:

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

Chidley's Case.

CHidley brought a Quid juris clamat, and had Iudgment against the Defendant; and the Plaintiff had made a Warrant to his Attor∣ney for the receiving of his Attornment,* 1.36 and the Defendant would have attorned, but would not do his Fealty: And the Presidents were. that he ought to be sworn in Court; and the entry of the Iudgment is, that he did attorn: And fecit fidelitatem, and so he was sworn in Court, vid. 37 H: 6. 14. If he refuse to attorn being in Court, he shall be com∣mitted for contempt: Moyle said, that that is Attornment, but Prisot said, that he should not have a Writ of Wast, nor arraign an Assise un∣till he assent.

Trin. 3 Car. Rot. Humbleton versus Buck.

Lincoln.

SImon Humbleton brought an action upon the case against Buck,* 1.37 and counted, that wheras a Controversie was between the Inhabitants and Tenants of Fletam, and one Palmer, for and concerning the having of Common in one parcell of Land which was a Sea-bank, in which they had Common of Pasturs, for taking by Cattell, and also by taking and cutting the Grasse: And wheras the said Palmer had brought an action of Trespasse against the now Plaintiff, for entry made by him in the said close, and for taking his Grasse, pretending that the said Land in which he claimed Common was his severall, and free from their claim of Common, the Defendant in consideration that the Plaintiff had given to him a Iugg of Beer, and that he at the request of the Defendant would prosecute and defend ••he said Suit for the maintenance of their Common against the said Palmer, untill the de∣termination

therof, he promised to pay to the Plaintiff one moyety of his charges, and over and besides twenty pounds, and that therupon he defended the said Suit, and pleaded Not guilty, and at the tryall therof Palmer was non-suited, and that, that was for the maintenance of the Common, and that he expended in defence and prosecution of the said Suit forty pounds.

The Defendant confessed all the Inducement, and also a promise sub modo, and sayd, that the said Palmer had brought Trespasse, to which the Plaintiff had pleaded Not guilty, absque hoc, that the said suit and tryall was for the said Common; And Issue being joyned it was found for the Plaintiff, and Damages to twenty pounds. And in Arrest of Iudgment it was moved, that now it appears, that it was not for the maintenance of the Title of Common, & that it could not be for the try∣all therof, because he did not plead the Title of Common, which had been the proper & apt way for the tryall therof: And when the Iury find that which is contrary and repugnant to Law, that is repugnant and not good. And this case was strongly argued by Serjeant Davenport in Arrest of Iudgment, and by Attho for the having of Iudgment: And first he said, That although there was a Parlance and Commu∣nication concerning the Common, yet the promise is to defend this a∣ction brought by Palmer, and is pro defentione of the Common, not generally, but against Palmer, and the promise is to pay the Moyety of the Charges, if he prosecute the said Suit, untill the determination therof, so that if it had been found against the now Plaintiff, the now Defendant ought to have paid the Moyety of the said charges: And it is not agreed that he shall plead title by Prescription for the Common, but that he should prosecute it untill the determination of the Suit, for the maintenance of the Common. And the Court gave Iudgment for the Plaintiff, for it might be for the maintenance of their Common against Palmer, for if he had not the Soil therof, but had inclosed it as part of his Wasts, the Plaintiff could not plead the Title to Com∣mon without admitting the Soil and Free-hold to be in Palmer: And if one had been of councell, and to advise a Plea, if he had not disco∣vered 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 Com∣mon.

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

Trin 3. Car. Chapman versus Chapman.

* 1.38REbecca Chapman brought an action of Debt against Henry Chap∣man, upon an Obligation with Condition to perform the Cove∣nants contained in certain Indentures. The Defendant pleaded a ge∣nerall performance, the Plaintiff replyed and shewed, that she made a Lease to the Defendant of certain Cole-pits, rendring eighty pounds

Rent, and that the Defendant did not pay the Rent at the day,* 1.39 wher∣upon the Defendant demurred.

And it was adjudged upon Argument for the Plaintiff: but the mat∣ter upon which the Defendant justified came not in question, viz. If the Plaintiff ought to have demanded the Rent: And that the Obliga∣tion had not altered the nature of the Rent, it being generall to perform all Covenants; and the reason is apparent, for when the Defendant plead performance of all the payments, that is intended an actuall pay∣ment, for he cannot now rejoyn, that he made tender, for that shall be a departure from his Plea. And that was the reason of the Iudgment which was Pasch. 43 Eliz. between John Specot Plaintiff,* 1.40 and Emanu∣el Shere Defendant, upon the like case in debt upon an Obligation, wheras the Defendant had granted an Annuity or Rent of six and twen∣ty shillings eight pence to the Plaintiff, for one and twenty years, the Condition was, that if the said Shere perform all the Covenants, &c. conteined in the said Writing, so that the Plaintiff may enjoy the Rent according to the intent therof, then, &c. the Defendant recited the Deed and pleaded performance, the Plaintiff replyed that the De∣fendant had not paid the said eight and twenty shillings eight pence upon such a Feast, wherupon the Defendant demurred, and adjudged for the Plaintiff. And the Lord Coke in his private Book (as the Lord chief Baron said) had shewn this reason: If the Defendant had pleaded specially, That he was upon the Land, and ready to pay, and to make tender, but the Plaintiff did not come to demand it, then the Plaintiff ought to shew that he did demand it, which seems to be a∣greed, 14 E: 4. 4. 2 H. 6. 57. 11 E: 4. 10. 21 E: 4, 42. but Brook 6 E: 6. Ten∣der, makes this diversity, when the Condition is expressed to pay the Rent, that alters the nature of the Rent: But otherwise when it is to perform Covenants. And the Iudgment given in the Kings Bench was affirmed.

Trin. 3 Car. Stephens versus Oldsworth.

IN a Quare Impedit brought by Stephens and Cross against Oldsworth and Holmes, for the Church of Lechamseed, the Incumbent pleaded,* 1.41 that he was Parson Imparsonee to the Church, of the presentation of the King, and confessed the Seisin of Sir Anthony Greenwood (under whom, by the grant of the next avoidance the Plaintiffs claim) but said, that the said Sir Anthony held the said Mannor of the King, per redditum ac wardam Castri Dower, to be paid yearly 8 s. 1 d. ob. q. And among other matters (which I omit) it was resolved that it was Socage Tenure, for a Rent for Castleguard is Socage, vide Lit∣tleton 26. Coke lib: 4. fol: 6. 5 E: 4. fol. 128. F.N.B. 256. a

Mich. 3 Car. Young versus Young.

* 1.42IN a Formedon in the Descender, brought by Young against Young, the Demandant was within age, and was admitted to prosecute by his Guardians, and that appears by a generall admittance, before Iustice Jones: And this admittance was first entred in the remem∣brance of Gulstons Office, and afterwards in the Plea Roll: And the Demandant which is admitted by the Court, viz. per Guardianos ad hoc per Curiam admissus, and there the Concessit per Curiam quod prosequatur per Gardianos is entred, and so is the Roll upon the View▪ And in the Philizers Roll the recitall is, That the Demandant per Gardianos admissus obtulit se. And in this Roll the Concessit per curi∣am of admitting the Demandant to prosecute by his Guardian is not entred. And after Verdict, and Iudgment for the Demandant, a Writ of Error was brought, and that assigned for Error: And it was moved that it might be entred upon the Philizers Roll. And it was resolved by all the Court that it should be supplyed and entred upon the Phili∣zers Roll; and the principall reason was, because that this admittance by his Guardians, is the act of the Court, and not like to the entry of the Warrant of Attorney, nor to the Essoin Roll, vide Dyer 330. other∣wise it is of Admission by Prochein ami,* 1.43 vide Rawlins case, Coke lib. 4. fol: 53. The use of the Kings Bench is never to enter the Admission, but only to recite it in the Count, vide 11 H: 7. Rot: 412. In a Writ of Right by Baron and Feme, and another Feme Infants, there per cu∣stodes good, vide 8 E: 4, 5. for the Mainprise entred in another Term, lib: Intractionum fol: 366. It was vouched by Croke, and affirmed by Yelverton in one Simpsons case in Durham,* 1.44 where the Tenant was by Prochein amy, where it should be by Guardian, was Error. The Pre∣sidents are, that an Infant when he sue, may be by Guardian, or Pro∣chein amy, the one or the other; but when he is sued, it shall be by Guardian.

Mich. 3 Car. Wolfe versus Hole.

WOlfe an Attorney Plaintiff against Hole, by a Writ of Privi∣ledge,* 1.45 and he Count upon an Assumpsit: And after Verdict gi∣ven and Iudgment, a Writ of Error was brought, and moved that there was a default in the Imparlance Roll: viz. fault de trover pledges, which was as it ought to be in the Plea Roll: And it was moved that it might be amended, and after debate at Bar, by Henden and Daven∣port, it was resolved that the not finding of Pledges is not matter of form, but matter of substance, and it concerns the King, for if the cause to amerce the Plaintiff, the Iudgment is, Ideo le Plaintiff & ses pledge; sont Amerce, and that it is not aided by the Statute of 18 Eliz. quod quaere, and vide 12 Eliz: Dyer 288. there is a Case written by me, that An: 17 Jac: was amended after the Verdict; and in one Hilla∣ries

case, and vide th••re in Dyer, that the Plaintiff when he is sued by Priviledges, ought to find pledges, and that as well, as when a Bill is filed against an Attorney. But now, because that it was assigned for Error, and that if it be amendable, the Iustices of the Kings Bench would amend it, this Court would not; but if it had been in the Im∣parlance Roll, and omitted in the Plea Roll, it should be amended, vide 18 E: 4. 9. that Pledges may be entred at any time.

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

RIchard Hilton brought an action of Trespasse against Robert Paule,* 1.46 for the taking of a Saddle at Stoke-Goldenham: And upon Not guilty pleaded, the Iury gave a speciall Verdict, Viz.

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

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

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

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

* 1.47SIr Edward Peto Knight, brought Replevin against Robert Pem∣merton and Giles Thompson; The Defendants made Conusance as Bayliffs to Humphrey Peto,* 1.48 and that Humphrey the Father of the said Humphry (was seised of the place in which, &c. in Fee, and by his Deed granted the Rent of six pounds to the said Humphrey his Son for life out therof, to Commence after the Death of the Grantor, and shewed that Humphrey the Father died, and for Rent arrear, &c.

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

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

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

As for the personall things, when they are suspended, they are ex∣tinct, unlesse it be in auter droit, as if Feme Executrix take the Deb∣tor 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 ac∣cepted, the Contract is determined, and that is by the act of both.

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

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

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

If Grantee of an Estate for life of a Rent, take an Estate for life of part of the Land, and surrender it, yet the Rent is not revived, for it was extinct in this case, if he had granted his interest, quere, and if he had granted his interest over to I. S. and he had surrendred it, that shall not revive the Rent, because that he had by his granting over of his in∣terest,

discharged of the Rent extinguish it, quaere: but in the princi∣pall 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 possessi∣on and the interest is in him without entry.

Hil. 3 Car. Sandford versus Cooper.

SAndford brought a Scire facias against Cooper to have execution of a Iudgment for sixteen pounds,* 1.49 which Iudgment was de Oct. Hil. An. 2 Car. And one being returned Ter-tenant, pleaded that after the Iudgment, viz. 22 Jan. he (against whom the Iudgment was) viz. John Bill acknowledged a Statute-staple, and shewe••, that by that the Land was extended, and after upon liberate delivered in Execution, and demand Iudgment, wherupon the Plaintiff demurred.

And the sole question was, to what day the Iudgment shall have re∣lation, for it appears in the pleading,* 1.50 that the twentieth day of January was the day of Essoin; and it seemed to the Court that the Iudgment should have relation to the first day of this return, as well as if it had been a return in the Tearm, viz. 15 Hil. for otherwise it should be un∣certain. And he may be Non-suited upon this day, vide 5 Eliz. Dyer fol. 200. That a recovery being in the first return, the Warrant of At∣torney made and dated the fourth day, is taken to be a Warrant after Iudgment, and vide 33 E: 6. fol: 45, 46. the principall case there: If a Nisi prius taken after the day of Essoin, shall be good, and it is adjudged not, for the first day is the return: And it was agreed, that in Com∣mon Parlance, the first day of the Tearm is the fourth day, viz. If one be obliged to appear, or to pay monies the first day of such a Tearm. Loquendum est ut vulgus. But the Law relate the Iudgment to the first day of every return, vide Dyer 361. a Release pleaded after the Darrein Continuance, which was dated the one and twentieth of Ja∣nuary, which was the day after the Essoin day, and it was not good, for it ought to be before the utas Hillarii:* 1.51 And my Brother Harvey and Crook vouched one Gillinghams case, viz. A Release of all Iudg∣ments before the fourth day, and after the day of Essoin would not re∣lease this Iudgment, which was de Octab. Hil. vide many cases vouch∣ed to this purpose, 4 E: 3.34 H: 6. 20. a Writ of Error brought after the utas, and before the fourth, that is good, and brought after Iudgment, vide 22 H: 6. 7. a. a Writ of Error ought to be brought after the Iudg∣ment rendred, or otherwise no Execution shall be stayed▪ And all the Court gave Iudgment for the Plaintiff in this Scire facias.

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

* 1.52SIr Thomas Holt brought Replevin against Thomas Sambach, in which upon Demurrer the Case was.

Sir William Catesby (being Tenant for life of Land, the remain∣der in tail to Robert his Son, the remainder in Fee) granted a Rent of ten pounds by the year out therof to William Sambach in Fee, and Sir William and Robert his Son levied a Fine with Proclamations, which was to the use of the said Sir William in Fee, and afterwards the said Sir William enfeoffed Sir Thomas Holt, and died; Robert had Issue Robert and died: And the Court was of opinion, that this Grant in Fee is good, for he had an Estate for life in possession, and an Estate of remainder in tail, and remainder in Fee, in himself to charge, and then the Fee-simple passe by the Grant: And although that Robert the Son might have avoided it, yet when he had barred the Estate-tail, &c. by Fine to the use of Sir William, now Sir William Catesby had by this acceptance of this Estate to himself, avoided the means by which he might have avoided the Rent. And although that in Bredons case, in the first Book, when Tenant for life, and he in the remainder in tail joyn in a Fine, rendring Rent to Tenant for life, that passeth from every one, that which lawfully might passe, and that the Rent continue after the death of him in the remainder in tail with∣out Issue; yet in this case the Estate is barred by the Fine, and uni∣ted to that Estate, which William the Grantor had, and now William is seised in Fee, and this Rent made unavoidable.

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

Chichley versus the Bishop of Ely.

* 1.53DAme Dorothy Chichley brought a Quare Impedit against Nich: Bi∣shop of Ely, and Mark Thompson the Incumbent for the Church of Wimple, and counted, that Thomas Chichley was seised of the Advow∣son of the said Church in Fee as in grosse, and presented to it being void, Edward Marshall which was Instituted and Inducted, and after∣ward the said Thomas Chichley died seised, and the Advowson descen∣ded to his Son and Heir Sir Thomas Chichley,* 1.54 who by his Deed in∣dented, &c. for the increase of the Ioynture of the Plaintiff, granted the said Advowson to Thomas East, and Edward Anger and their Heirs, to the use of the said Plaintiff for life, and afterwards to the use of the

Heirs Males of the body of Sir Thomas Chichley; and that by force therof she was seised for life: And the Church being hold by the death of the said Edward Marshall she presented, and the Defendants distur∣bed her.

The said Bishop died, and the Defendant plead that he is parsona imparsonata ex presentatione Domini Regis nunc: And said, that Sir Thomas Chichley was seised in Fee of the said Advowson, and also of the Mannor of Preston, and divers other Lands in the County of Cam∣bridge, which Mannors and Lands were holden of King James in Ca∣pite by Knights-service, and being so seised he died, and that this Ad∣vowson and the Mannor descended to Thomas Chichley his Son and Heir, who at the time of his death was within age: And that after∣wards by force of a Writ of Diem clausit extremum this matter was found, wherby the King seised the body, and was possessed of the Man∣nor and of the Advowson, and that the said King James died, & the King which now is suscepit regimen hujus regni, and was possessed, and the Church became void; And the King by his Letters Patents under the great Seal, presented the Defendant Thompson, and traversed the Grant made by Sir Thomas Chichley, to Thomas East and Edward Anger of the said Advowson, as the Plaintiff had alledged.

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

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

Vide 17 H: 7. Kel: 43. 11 H. 8. ibid. fol. 200. vide 21 E: 4. 1. 5 E: 4. 3. or 13. of things which lye in Grant, the King is in actuall possession,* 1.55 20 E: 4. 11. Stamf. fol: 54. 2. R: 3. issue 7. 28. 23 H: 8. Kel: 97. new Book of Entries fol: 130. vide there that Traverse is allowed to be taken upon Traverse, vide for that 9 H: 7. 9. 10 E: ••. 49. Dyer 107. 10 E: 4. 2. 3. 6 E. 3. ••.

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

Hedley Serjeant argued for the Plaintiff, that the presentment of

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

Pasch. 4 Car. Congham's Case.

* 1.56IN an action upon the Case against Congham and his Wife, That wheras the Plaintiff hath recovered in Debt against one, and had a Writ of Capias ad satisfaciendum directed to the Sheriff of Cambridge∣shire, and the Sheriff had arrested the party, and had him in Executi∣on for the Debt, the Defendants rescued the party, and he escaped: Vpon Not guilty pleaded the Feme was found guilty of the Rescous: And it was moved in Arrest of Iudgment by Aleph, that this action lies not, because that Debt lies against the Sheriff: And the Sheriff shall have an action for the Rescous, vide F: N: B. 102. And properly this action of Rescous lies where it is upon mean processe, and that is for the delay by the Rescous, and damage may be greater or lesser accordingly: And the Rescous is according to the condition of him, which is arrested, for if he may be easily taken again, and that he becomes not more poor, that then the damage is the lesse, vide 16 E: 4. fol. 3.

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

Farrington versus Caymer.

LIonell Farrington qui tam pro se quam pro, &c. brought an Infor∣mation against William Caymer,* 1.57 upon the Statute of 23 H. 8. cap. 4. against Ale-brewers and Bear-brewers, for selling Bear at higher prises then were assessed by the Iustices, upon Not guilty pleaded, the Plaintiff had a Verdict at Norfolk Assises.

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

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

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

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

Ideo Iudgment for the Informer.

June 19. An. 22. Jac.

MEmorand. That upon a Conference at Serjeants Inn in Fleet-street, it was resolved and agreed, by the Lord chief Iustice Sir James ••ea, the Lord Hobart, Baron Bromley, Baron Denham, Iustice Hutton, and Iustice Jones; That any one may erect an Inn for lodg∣ing of Travellers, without any allowance or License,* 1.58 as well as any one before the Statute of 2 E: 6. might have kept a Common Alehouse, or as at this day one may set up to keep hackney Horses, or Coaches, to be hired by such as will use them: And all men may convert Barley into Mault, untill they be restrained by the act of Parliament made for that purpose. And as all men may set up Trades not restrained by the Act of 5 Eliz. which directeth, no man that hath not been bound, or ser∣ved as an Apprentice by the space of seven years, or by restraint of set∣ting up Trades in Corporations, by such as be not free, by the like rea∣son all men may use the Trade of Inne-keeping, unlesse it could be

brought to be within the Statute of 2 E: 6. which hath never been ta∣ken to be subject to that Statute in point of license: And vide that an Hostler is chargable to the party which is his Guest, for the restoring of that which is lost in his House, and that by the Common Law of the Realm, vide 11 H: 4. fol: 45. see also, 11 H: 4. fol: 47. That in an action upon the case brought by the School-master of Glo∣cester, for erecting another School to his prejudice, adjudged that no a∣ction lies; and also it is there said, that if I have a Mill, and another erect another Mill, by which I lose my Custom, no action lies unlesse he disturb the water. And it was said by the chief Iustice, that it was so resolved before by the Iudges, and that Iustice Doderidge, Iustice Haughton, and Iustice Chamberlain were of the same opinion, and so now was my Brother Crew, the Kings Serjeant, who went the Cir∣cuit of Surrey, Kent, and Essex; but the chief Baron Tanfield was of a contrary opinion: And it seemed to him that Innes were licensed at first, and Originally by the Iustices in Eire; but nothing could be shewne to that purpose: But all the Iustices were of a contrary opinion, and said, that that was the ground that begot the Pa∣tent and Commission to Mounperson, viz. That the King might licence them, if the Iudges might.

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

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

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

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

Mich. 4 Car. Mackerney versus Ewrin.

RIchard Mackerney brought an action upon the case against Jeffrey Ewrin, and count,* 1.59 That wherea•• one I. S. was indebted to the Plaintiff in seven pounds four shillings for pasture, feeding, and Oates for an Horse kept in the Stable of the Plaintiff:* 1.60 The Defendant in consideration that the Plaintiff at his request would deliver the Horse to him, to the use of the said John S. promised to pay the said seven pounds four shillings. And upon Non Assumpsit pleaded, and Verdict for the Plaintiff, Serjeant Callis moved in Arrest of Iudgment, that it is no good consideration, for the Plaintiff had not any property in the Horse, and he is not is do any other thing then the Law injoyn him to do: As if I lose my goods and another find them, and in considera∣tion that he will deliver them to me I promise to pay him two hun∣dred pounds, that is not sufficient matter to ground an Assumpsit ther∣upon; But if a Taylor had made a Sute of Apparell for I. S. and I. D. request him to deliver it to him, and he will pay for the making therof, that is a good consideration, vide Coke lib: 8. fol: 147. And in this case all the Court were of opinion, that the consideration was good, for wheras he might have detained the Horse untill he had been paid for the pasture and feeding, he at the speciall request of the Defendant had de∣livered the Horse to him, to the use of the Owner, which is to the pre∣judice of the Plaintiff, and alienest to him to whose use he was deli∣vered.

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

Turner versus Hodges.

THe Custom of the Mannor of _____ _____ is found to be for the Copyholders (without the License of the Lord of the Mannor) they being seised in Fee, may make any Lease for a year,* 1.61 or many years, and when they dye, that ••••e 〈◊〉〈◊〉 shall cease, and that the Heir or Heirs may enter.

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

Custom creates the Estate, and the Custom is as ancient as the Estate, and is casuall, and upon the Act of God, and is reasonable, that the Heir who is to pay the Fine should have the Possession: And yet a Custom, that if the Copyholder had surrendred to the Lord, that the Lease should be void, had been a 〈◊〉〈◊〉 Custom, because that he

might subvert and destroy by his own act that Estate that he himself had made, and he which took the Lease ha••ing notice of the Custom, takes the Lease at his perill, for otherwise he might have procured the Li∣cense of the Lord; and then by this License the Lord had dispenced therwith, and that is, as it were, the Confirmation of the Lord: For if a Copyholder makes a Lease for twenty years, with the License of the Lord, and after dies without Heirs, yet the Lease shall stand a∣gainst the Lord by reason of his License, which amounts to a Confir∣mation. And the Plaintiff had Iudgment.

Hil. 4 Car.

EJectione firmae was brought, and count upon a Lease made by Hus∣band and Wife,* 1.62 and that was by Indenture: And upon Not guil∣ty pleaded, a speciall Verdict was given, in which the sole question was, Whether this Lease was made by Baron and Feme, being there was no Rent reserved therby.

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

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

Pasch. 5 Car. Paston versus Utber.

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

* 1.63Barnard Vtber seised of the said Land to him and his Heirs by Copy of Court-Roll, according to the Custom of the Mannor of Binham: And that within that Mannor there is such a Custom, that the Lord had had one field course for five hundred Ewes in the North-field, and the West-field (wherof these fifteen acres were parcell) from the Feast of Saint Michael, if the Corn were inned, and if it were not, then after the Corn were inned, untill the Feast of the Annunciation, if it were not before that time sown again with Corn, in all the Lands of the Co∣pyholders not inclosed. And that it is a Custom, that no Copyholder may inclose any Copyhold Land without the License of the Lord: And if any be inclosed without License, then a reasonable fine should be as∣sessed by the Lord or his Steward, for the Inclosure, if the Lord would accept therof. And it is also a Custom that if the Lord will not accept therof, then the Copyholder which so incloseth, shall be punished at every Court after, untill he open that Inclosure. And the said Vtber

inclosed the 15. acres with an Hedge and Fence of Quick-set, 3. feet deep, and 6. feet broad; and that he had left 4. spaces of 9. feet broad in the said 15. acres: And that the said Vtber was required by the Stew∣ard to lay open the said Inclosure, and he did it not, whereupon there was a command to the Bayliff to seise them as forfeit, which was done; And the said Mary being Seignoress of the Mannor entred, and leased to the Plaintiff, and the Defendant entred upon him.

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

Trin. 5 Car. Starkey versus Tayler.

* 1.64STarkey an Atterney of this Court, brought an action upon the case against one Mr. Tayler of Lincolns Inn, for saying of these words to him;* 1.65 Thou art a common Barretor, and a Judas, and a Promoter. And it was moved in Arrest of Iudgment, that these words maintain not action, for the generality, and uncertainty, that he shall be called a common Barretor.

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

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

Leicest.

WIlliam Watt brought an Ejectione firmae against Laurence Maydewell,* 1.66 upon a Lease made by Robert Rome, upon Not guilty, and a speciall Verdict found, the Case was thus.

Francis Griffith seised of Land in Fee, by Indenture, bearing date the fourteen of November, and 14 Iac. demised the said Land wher∣of, &c. for one and forty years, to Robert Rome, rendring two shillings Rent, to commence from the Annunciation which shall be An: 1619. and after the same year by another Indenture, bearing date the third of December, 15 Iac. to commence from the Annunciation last, demised the same Lands for ninety nine years to Dame Frances Perroint, who entred and was therof possessed; And after that, the said Francis Griffith by another Indenture the same year, bearing date the fourteen day of November, 16 Iac. to commence from the seventeenth of No∣vember, An. 1619. devise it to the said Robert Rome, for one and forty

years, who accepted it, and afterwards entred, and being possessed made his Will, and appointed Executors, and died, the Executors admi∣nistred, and made the Lease to the Plaintiff, who was possessed, untill he was ousted by the Defendant.

And the only question of this Case was, if the acceptance of the se∣cond Lease by Robert Rome, had determined, discharged or extin∣guished 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 a∣ny Interest to Robert Rome. This Lease made to Robert Rome, viz. his former Lease was good in Interest, being to commence at a day to come, and is grantable over, and may be surrendred or determi∣ned by matter in Law before the Commencement therof, as if he take a new Lease to commence presently, which see in 37 H. 6. 29. 22 E. 4. for it tuures in Contract.

And in this case it had been without question, that the taking of the new Lease had been a surrender of the former, if it were not by reason of the Lease for ninety nine years, which is for so great a number of years, that disables him to contract for one and forty years, 37 H. 6. 17. 18. 14 H. 7. 3. Dyer 140. Vide Smith and Stapletons case in Plowden, If a man makes a Lease for one and twenty years, and after makes a Lease for one and twenty yeares by Paroll, that is meerly void, but if the second Lease had beene by Deed, and hee had pro∣cured 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 surren∣der of a former Lease.

These Cases were vouched in this Case.* 1.67 Serjeant Bakers Case in the Court of Wards, with the Lady Willoughby, that a latter Lease taken by him which was void, did n••t surrender his former Lease which was good.

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

Trin. 14 Jac. Rot. 3308 Thompson against Green,* 1.68 adjudged that when one grants Proximam Advocationem to mother, this is meerly void.

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

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

Mich. 5 Car. Baker versus Johnson.

A Iury was at the Bar in an Ejectione firmae brought by Henry Ba∣ker against Bartholomew Johnson; upon a Lease made by James Baker, which was seised of two Marshes among others called Knight∣swick and Southwick,* 1.69 which lye in an Island called Camby, in the Pa∣rish there called North-Benfleet: And he being Tenant in tail, and in∣tending to dock it, and to make himself seised in Fee, by Indenture, the 10. of Eliz. Covenanted to suffer a recovery of these two Marshes by name, and of many other Lands, and that it should be to the use of himself in Fee; and the recovery was had, and therin South-Benfleet and many other Parishes named, and Camby, but the Parish of North-Benfleet was omitted: And if the Lands in North-Benfleet passed or no; was the Question.

And it was strongly argued by Crew and Henden to have it found specially, it being in a Common Recovery, which is but a Common Conveyance. But all the Court agreed, that the Town and Parish be∣ing omitted, although that Camby was a place known (but it appea∣red that that extends in and to ten Towns) yet being in a Town, that the Recovery extends not therto, no more then if one had a Man∣nor in the Town of Dale, which Mannor is called Bradford; and within the said Mannor is a place known which is called Braisty Wood, and he omit the Mannor and the Town, and say, the hundred acres of Land in Braisty Wood, that is not good. And the Court a∣greed, that a Common Recovery is good in a Town, Parish, or Ham∣let, and peradventure in a place known out of the Town, Parish, or Hamlet, as in the Forrest of Inglewood, in Insula de Thamete, &c. But if it should be admitted that a Common Recovery shall be good in a place known in a Town or Hamlet, that shall be absurd, for there is no Town, in which there are not twenty places known; and it had been adjudged, that a Venire facias de viceneto of a place known in a Town, without making the Visne of the Town, is not good.

Mich. 5 Car. Bill versus Lake.

London.

* 1.70FRancis Bill brought an action upon the Case against Sir Aurthur Lake, and counted, that wheras at the speciall instance of Lettice Wife of the Defendant,* 1.71 he had provided for the said Lettice a Tasfety Roll, the Defendant did assume to pay as much as it was worth upon request And so in like manner for providing of Linnen stuff, &c. and making of severall Garments for the Wife, and aver that the severall things bought amount to such a summ, and the making therof was worth such a summ, which in toto, &c. and alledge the request: And aver that they were necessary Vestments, and convenient for the degree

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 Limi∣tation, and said, that the Plaintiff within six years after the promise supposed, nor within three years after the end of the Parliament, had not prosecuted any Originall, or any Action upon this promise and As∣sumpsion, wherupon the Plaintiff demurred.

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

Whether the cause of Action shall be said upon the request,* 1.72 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 foun∣ded upon an Assumpsion in Law, because that it is not certain, but to be made certain; first, by the Plaintiffs buying and providing of the Stuff: Secondly, by the Plaintiffs termining and making therof; and then the matter of promise is for the payment of so much money as it should be reasonably worth, and therfore the request is there collate∣rall, and then it is the cause of the action; and so within the Statute; if it be an action which is founded upon an Assumpsit in Law, then it doth not charge the Husband: see the difference when request is mate∣riall and shall be alledged, and when not, in Mecholl and Pecks Case be∣fore, and a Feme Covert is not capable to make any Contract, because she is Sub potestate viri: And though it be for necessaries of Diet and Apparrell, that shall not charge the Husband:* 1.73 But an Infant is capa∣ble to make Contract for Diet and Apparrel necessary. An: 25 Eliz: Sir William Alephs case was adjudged, that where an Infant had taken so much for his necessary Apparrell and Diet which amounted to fifty pounds, which was paid by Sir William Aleph; And he took an Obli∣gation with a penalty, adjudged that it did not bind him in regard of the forfeiture: And Dyer 234. Sir Michael Penits case, the Wife took Sattin and Stuff to make her a Gown, and Sir Michael paid the Taylor for the making therof: And yet upon an action of Debt brought against the Husband, it was resolved that it did not charge him.

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

And the sole matter upon which Davenport insisted, was, that this was a Contract by the Husband, wherupon the Plaintiff might have an action of Debt against him, and then it is but an Assumpsit in Law, and the request is not cause of action: And therfore he said, as well as

Debt lies upon the delivery of Cloath to a Taylor for the making Gar∣ments therof; so an action of Debt lies for the summ accompanying the speciall matter, viz. for the payment of so much as the making shall be reasonably worth, vide Coke lib: 4. fol: 147. so Debt lies as well a∣gainst 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 Ar∣thur upon this Assumpsit, but only an action of the case upon the re∣quest.

Mich. 4 Car. Treford versus Holmes.

* 1.74TReford brought an action upon the Case against Holmes as Execu∣tor, and counted, that wheras the Testator was indebted to the Plaintiff, the Defendant in consideration that the Plaintiff would forbear the said Debt for a reasonable time assumed to pay it: And this promise was made in December, and he shew forbearance untill March next; And upon Non assumpsit pleaded, and Verdict for the Plaintiff, Serjeant Thinn moved in Arrest of Iudgment, that it is no sufficient consideration, for the incertainty of the time, if it had been for a lit∣tle 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 I∣saac Sidleys case before: Then he moved another Exception, which was, that he had not shewn and averred in the Count that the Defen∣dant had Assets at the time of the promise, vide Coke lib: 9. fol: 93. & 94. Baines Case, that ought to come on the other part, or otherwise it shall be upon Evidence, if it be necessary.

And Iudgment for the Plaintiff.

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

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

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

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

Freeman versus Stacy. Mich. 5 Car.

BEtween Freeman and Stacy, upon a speciall Verdict the Case was;y The Plaintiff count upon a Lease by Indenture for one and twenty years, rendring Rent, and in debt for the arrearages of this Rent; it ap∣pears, 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,* 1.75 that Iudgment should be given against the Plaintiff, because the Statute of the 21. of King James, cap. 16. extends to Debts for arrearages of Rent expresly.

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

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

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

Trin. 6 Car. Shervin versus Cartwright.

SHervin brought a Writ De rationabile parte bonorum against Cart∣wright, and counted of Custom in the County of Nottingham,* 1.76 and shew all specially, and the conclusion was, that he detaineth particular Goods of the party Plaintiff, which appertained to him as his part and portion: And upon Non detinet pleaded, it was found that the Plaintiff was intituled to this Action many years before the Statute of 21 Jac. and that he had not brought his action within the time limi∣ted by the said Statute. And upon the speciall Verdict, the Case be∣ing argued by Serjeant Ward for the Plaintiff, it was adjudged for the Plaintiff.

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

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

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

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

Cook versus Cook.

WIlliam Cooke alias Barker, brought an Action of Wast against George Cook alias Barker, and count against him as Tenant for life,* 1.77 of the Lease of George Cook, and intitle himself to the Rever∣sion, Ex assignatione of the said George, and shews that George Cook being seised in Fee, and the Ter-tenant in Socage, devised the Land to the Defendant for life, the remaineer in tail to the Plaintiff: And upon the Count the Defendant demurred.

And the Question was how the Writ should be, where a Lease is made for life, the remainder in Fee, for it cannot be, Quod de ipso te∣net; And it seems that the Writ shall be speciall upon the Case, as a Fine levied to one for life, the remainder in Fee, the Writ shall be speciall upon the Case: And it seems that it shall never be Ex assigna∣tione, 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. il∣lud praefat. D. demisit ad eundem terminum, inde fecit praefat. B. &c.

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

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

Mich. 6 Caroli.

* 1.78AN action of the case was brought for these words: Thou art a Theef, and hast stoln one Passions Lamb, and marked it and denied it: And upon Not guilty pleaded, and Verdict for the Plaintiff: Serjeant

Ashley moved in Arrest of Iudgment, because that it is not shewn whose Lamb, for Passions is no word of any signification without the name of Baptisme. And the Court was of opinion that the Count was good, for it had been sufficient to call him Theef, and then the subsequent matter and words aggravate, and contain matter of Felony: And it is a generall Rule, that when the first words are actionable, the latter words which toll the force therof, ought to be such as do not contain Felony.

Babbington versus Wood.

BAbbington brought an action of debt against Wood, upon an Obli∣gation of 600 l. the Condition was, That if Wood resign a Bene∣fice upon request, that then the Obligation should be void.* 1.79 And the Condition was entred; the Defendant demurred, and Iudgment in Banco Regis pro querente: And upon Error brought, Iudgment was affirmed in the Exchequer Chamber; for this Obligation is not void∣able by the Statute of 14 Eliz. which makes Obligations of the same force, as Leases made by Parsons of their Gleaves, viz. Per non resi∣dency; And it doth not appear by the Plea of the Defendant, that it was not an Obligation bona fide which might be lawfull: As if a Pa∣tron 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 Obli∣gation. And this Case, viz. an Obligation with Condition to resign had been adjudged good in the case of one Jones, An: 8 Jac. And the Councel said, that he who is presented to a Church is married therto,* 1.80 and it is like as if a man who hath married a Wife, should be bound to be divor∣ced from her, or not co-habit with her, these Conditions are void. But these resemble not our Case.

Wilson versus Briggs.

WIlson brought an action of Account against Briggs, as Bayly of his Mannor in the County of Cambr.* 1.81 and also as Bayly to ano∣ther Mannor in the County of Suff. And this action was brought in the County of Cambr. and found for the plaintiff, and Iudgment to account, and found in the arrearages, and Iudgment given. And now the De∣fendant brought a Writ of Error, & Iudgment was reversed because it was mis-tryed, for it should be tryed at the Bar by severall Ven. fac. to be directed to the severall Sheriffs. First it is agreed, that a writ of Ac∣count against one as Bayliff of his Mannor, cannot be brought in ano∣ther County, but only in that County where the land lies, vi. 8 E. 3. fol: 46. Fitz. Acc. 93. see there that two actions of Account brought against one for receit in two Counties. And there it is said, that it being upon a day, that he may have one writ, and count in the two Counties. But to that it is said, that that proves not but that he might have two Writs wherby it might be awarded that he should answer. But in this case it was resolved, that it was a mis-tryall, for it ought to be by two Ven. fac. and tryed at Bar, and it is not aided by the Statute of 21 Jac: cap: 13.

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

* 1.82HEnry Pernell brought Replevin against William Bridge, Robert Bridge, and two others: William Bridge plead Non cepit, and the other made Conusance, and upon Demurrer the case was such.

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

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

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

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

Memorand. That in this Term a motion was made for the filing of a Writ of Entry in a Common Recovery suffered by Sir John Smith upon a Purchase, and all was well done, and the Writ made and sealed,* 1.83 but by the negligence of the Attorney it was not filed; and it was Unanimo assensu resolved that it should be filed, and that after the death of Sir John Smith, for it is but to perfect a Common Recovery which is a Common Conveyance: And this was denied in the case of

one Allonson, for there Error was brought and Diminution alledged, and a Certificate that there was no Writ by the Custos brevium.

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

Mich. 8 Car. Harbert versus Angell.

CHarles Harbert Plaintiff, against Angell,* 1.84 in an action upon the case of words, which were, Thou art a Theef, and hast cousened my Cosin Baldwin of his Land: And after Verdict for the Plaintiff, it was moved in Arrest of Iudgment, that the words would not main∣tain action.

And at the first, Iustice Crawley and Iustice Vernon were of opini∣on, that the former part of the words were actionable, and that they were not extenuated by the subsequent words; but they agreed, if it had been, for thou hast robbed, &c. it would be otherwise. And the Lord Heath and Iustice Hutton were of a contrary opinion, and that the words And, and For, are in this case to have one effect, and declare what Theef he intended: And they relyed on Birtridges case, Coke lib: 4. And upon this diversity of opinion the Lord Heath conferred with the Iustices of Serjeants Inn in Fleetstreet, and we with the Lord Ri∣chardson, and they all agreed, that the subsequent words explained his intent and meaning, viz. the Robbery and cousening of the Land: And Verba sunt accipienda in mitiori sensu; As to say, Thou hast stoln my Corn, it shall be intended Com growing: so in Arrowes case,* 1.85 19 Jac. Thou art a Theef, and hast stoln ten Cart-loads of my Furzes; adjudged not actionable, for it shall be intended of Furzes growing.

Quaerens nil capiat per breve.

Ram versus Lamley.

Norff.

RAm brought an action upon the case against Lamley, and declared, That wheras he was Bonus & legalis homo, and free a suspitione feloniae, the Defendant maliciously want to the Major of Linn, and re∣quested a Warrant of him (being a Iustice of Peace) against the Plaintiff for stealing his Ropes: The Major said to him, Be advised and look what you do, the Defendant said to the Major, Sir,* 1.86 I will charge him with flat Felony for stealing my Ropes from my Shop, Quo∣rum quidem verborum, &c. And after Not guilty pleaded, and Ver∣dict for the Plaintiff, Hitcham moved in Arrest of Iudgment; And the Court unanimously resolved that these words being spoken to the Iustice of Peace when he came for his Warrant, which was lawfull, would not maintain an action, for if they should, no other would come to a Iustice to make complaint, and to inform him of any Felony.

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,* 1.87 that the Defendant took his Beasts at Blisworth, in quo∣dam loco vocat. Thorny Close.

The Defendant avowed as Bayliff to Sir William Sheapherd, and derived Title by a Lease to Michael West for ninety years, if he and Thomas West the Defendant,* 1.88 and one Hutton West should so long live: And the said Michael, 19. Aprilis, An: 20 Jac. granted a Rent-charge of ten pounds per annum to the said William Shepheard and his Execu∣tors, out of the place in which, &c. for the residue of his Tearm, to be paid at the house of Thomas West in S. And the said Mich. granted, that if the Rent he arrear by eight and twenty daies, being lawfully deman∣ded 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 lawful∣ly demanded at the said house, then he might distrain for that, and the Nomine poenae: And for Rent arrear by a year after demand due, &c. he makes Conuzance; And therupon the Plaintiff demurred gene∣ralls.

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

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

And lastly, it hath been divers times adjudged, that the Rent is paya∣ble

upon the Land, 1 Jac: Rot: 1818.* 1.89 In Replevin between Nich and Langford.

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

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

Iudgment for the Defendant

The Lord Audley's Case.

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,* 1.90 sed In∣stigatione Diabolica moti & seducti vicessimo die Junii, Anno regni Do∣mini nostri Caroli dei Gratia Angliae, Scotiae, Franciae & Hiberniae, fidei defensoris sexto, Apud Fountell Gifford praedict. & Comitatu praedicto vi & armis, &c. in & super Annam Dominam Audley Uxorem praefati Domini Martini Audley in pace Dei, & dicti Domini Regis ibidem Ex∣istent. insult. fecerunt. Et praedictus Aegidius Br. praedictam Annam Do∣minam 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, con∣tra 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 Ju∣nii, An. sexto supradicto Apud Fountell Glifford praedictam, in Comi∣tatu praedicto felonice fuit presens, auxilians & Confortans, abettans, procurans, ••adjuvans, & manutenens praedictum Egidium Br. ad feloni∣am 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,* 2.1 sed instigatione Diabolica motus & seductus primo die Junii, An. Regni Domini nostri Caroli, &c. 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, Diabo∣lice, felonice & contra naturam rem veneream habuit, ipsumque F. ad tunc & ibidem carnaliter cognovit, peccatumque illud Sodomiticum de∣testabile, & abominandum, Anglice vocat. Buggery (inter Christianos non nominandum) ad tunc & ibidem cum eodem Florence F. nequit. Diabolice, felonice & contra naturam Commisit & perpetravit in mag∣nam 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, &c.

Memorand. That these Indictments were sound 6 April, An. 7 Car. at new Sarum, by vertue of a Commission before Edward Lord Geor∣ges, Nich. Hide Knight, chief Iustice ad placita, &c. Thomas Richard∣son chief Iustice de Banco. John Denham Knight, one of the Barons, &c. Edward Hungerford Knight, Walter Vaughan Knight, Laurence Hide Knight, Thomas Fanshaw Knight, by Letters Patents, Ipsius Domini Regis pro eis & quibuscunque tribus vel pluribus eorum inde Confect. ad Inquirendum, &c.

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 seve∣rall 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 Iudges which did attend, viz. The Lord chief Iustice of the Kings Bench, the Lord chief Iustice of the Common Pleas, the Lord chief Baron, Baron Denham, Iustice Jones, Iustice Whitlock, Iustice Harvey, and Iustice Crook.

If the Wife might be produced as a Witnesse against her Hus∣band.

* 2.2And it was resolved that in case of a common person, between party and party she could not, according to the opinion in Cokes first Insti∣tutes, fol 6. but between the King and the party, upon an Indictment she may, although it concerns the Feme her self, as she may have the Peace against her Husband.

* 2.3Also it was reported to the Lords, by the Lord chief Iustice, when they were demanded, whether (this matter of Fact being as it was proved) that Pollution and using of a man upon his Belly Sodomiti∣cally 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 generall.

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 mat∣ter in fact, that it was Buggery, but they gave not a generall opinion, that may be a rule in other cases, but upon the foulnesse and abomina∣blenesse 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 Iudges had declared it. And it seems that they could not give a speciall Verdict upon this tryall, for it never was seen: Also the Commission determines after Iudgment 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 Mannor is) said, that he was guilty of Rape, beside the Lord North.

And for the Buggaries twelve of the Lords acquitted him, and fif∣teen found him guilty, and so he had Iudgment.

And at this Arraingnment the Iudges assistant sate with their heads

covered, as the ancient use hath been; But the Serjeant at Armes was commanded to make Proclamation, That the Iudges, and all the Lords (not being his Peers) and all of the Privy Councell should be covered, and others not. And this was only in relation to the prece∣dent usage, and the right which appertain to the Iudges: For in Par∣liament, 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, untill 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.* 2.4

The now Plaintiff William Risam recovered against Thomas Cam∣mon a hundred pounds Debt, and ten shillings Costs, at the Grand Ses∣sions 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 & consuetudi∣nem regni nostri Angliae fuit faciend. Wherupon a Writ of Scire facias was awarded to the Sheriff of Hereford against the said Defendants, to which they appeared: And after many Imparlances they demurred up∣on 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 sur∣mised, that he had nothing within ancient Demesne, 21 E, 3. 49. 21 H: 7. 33. 8 Ass: 27. 30 H: 6, 7. 3 H: 4. 15. 1 Justitutes 59. in Frankalmoigne: That Wales is parcel of England 1 E: 3. Jurisdiction 45. 22 H: 6. 58. 47. E: 3. 6. 3. E: 3. Quare Impedit 38. 35 H: 5. 30. 19 H: 6. 12. & 52. vide the Statute of 34 H: 8. for Wales and Writs of Error.

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

• 1. That this Court of the great Sessions is an inferiour Court.
• 2. The Record it self comes not but a Transcript.
• 3. The Statute of 34 H: 8. hath appointed the Execution, and that should be pursued.
• ...

• 4. This Innovation is perillous, and never put in practice. And he relyed upon the diversity. When Iudgment in a peculiar inferiour Court, comes into the Kings Bench, or into this Court by Writ of Error, and is affirmed, then the Superiour supplies it, and add strength to the Iudgment: But when Iudgment is given in a Court of a Corporation, and that is removed by Certiorari, and sent by Mit∣timus, that shall not be executed there, vide 45 E: 3. 25. Formedon in London, vide 14 E: 3. Tryals 23. 15 E: 3. Record 35. New Book of En∣tries, the last case in Writ of Error, vide 8 E: 3. 10. 26 H: 6 8. 3 H: 6. 16. 7 H: 4. 8. 14 H: 4. 25. H: 5. 11. And he relyed upon 21 H: 7. 35. and the case of 39 H: 6. 3, & 4. and the case of ancient Demesne, 7 H: 9. 18. 37 H: 6. 16. Dyer 369.

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

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

IN an Ejectione firmae brought by Robert Napper against Henry Sanders, upon a Lease by Deed indented, made by John Napper and Elizabeth his Wife, and Francis Sanders, upon Not guilty plea∣ged,* 2.5 the Iury gave a speciall Verdict, wherupon the Case was such.

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

And the sole question was, whether the remainder in tail to Posthu∣mus, and the remainder in tail to Elizabeth, and Francis were contin∣gent or executed: And it was resolved by all the Court, that the re∣mainders were not contingent in the Estate for life which was to come to Elizabeth Sanders, the Wife of the said Nicholas, but were vested presently. And it was agreed, that the Estate for life, if she survive her Husband, was contingent; and when that had hapned, being by way of Limitation of an use, it shall be interposed when the Contingent happen, as in Chudleys case, Coke lib: 1. fol: 133. a Feoff∣ment to the use of the Feoffor for life, and after his death to his first Son which shall be afterwards born, for his life, and so to divers: And afterwards to the use of I. D. in tail: It is resolved that all the uses limited to-persons not in Esse are contingent, but the uses to per∣sons 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,* 2.6 late Earl of Derby in tail, and then to the use of the two Feoffees for eigh∣ty years, if Henry late Earl of Darby should so long live, and after his decease to Ferdinand, and to the Heirs Males of his body, and for default of such Issue, to the use of William now Earl of Derby. And it was adjudged that the remainders vest presently: And this possibility that Henry might have over lived the eighty years, will not make the remainders contingent. And in a Suit which was at Lancaster be∣tween Farrington and another,* 2.7 upon a speciall Verdict there found a∣bout 8 Jac. and many times argued at Serjeants Inn, it was afterwards adjudged a good remainder and not contingent; And the same case in this Court upon a Scire facias for two have executor of certain Land, for debt recovered against the Earl of Derby, which Land was intai∣led by the same Conveyance, &c. brought against the Earl of Bridgwa∣ter and his Wife, one of the Co-heirs of Ferdinand, Earl of Derby, was adjudged in this Court, vide Borastons case, Coke lib: 3. fol: 20. 14 Eliz: Dyer 314. Lovies case, Coke lib: 10. 27 H: 8. 24. 38 E: 3. 26. 5 E: 3. 27. 30. E: 3. Collthurst and Bemchins case was urged, that the remain∣der limited to B. for life, and after that C. hath married Ja. S. then to the use of C. in Fee, this is contingent, and is collaterall; And this case is not like to that.

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

Pasch. 8 Car. Metcalfe versus Hodgson.

* 2.8MEtcalfe brought an action upon the case against Hodgson and Wharton late Sheriffs of the City of York, and count, That wheras time out of memory, &c. there hath been a Court of Record hol∣den before the Sheriffs of the said City, upon the Bridge called Ous∣bridge,* 2.9 and that in this Court, every one having cause of action arising within the said City, had used to commence any action for debt there, and that the Defendants being arrested by their bodies, the Sheriffs had used to take Bayle of them, and to let them to Bayle, finding suffi∣cient sureties, and that the Sheriffs are also, and time out of memory, have been Keepers of the Gaol there. And wheras the Plaintiff had brought an action against one Smith, and recovered, the now Defen∣dants (being Sheriffs) had taken insufficient Bail of him, &c. And upon Not guilty pleaded, it was tryed before the Lord chief Baron at York, for the Bail are supposed to be taken at Wakefield, but that was not alledged, for any thing which appears, to be out of their Iuris∣diction: And the Iury contrary to the direction of the Lord chief Ba∣ron gave Verdict for the Plaintiff.

And after many motions in Arrest and praying of Iudgment, it was resolved, that this act was done by them as Iudges, and for this Iudiciall Act no action lay: And though that the Bail by the event ap∣pear 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 insuffi∣cient Bailes, taken by any of the Kings-Bench, Common Bench, or Ex∣chequer: And that they having two Authorities in una persona, it shall be taken to be done by that Authority by which they have power to vail, and that is as Iudges of the Court, and not as Gaolers, for by this they have no power to Bail any, and in this capacity they are only sub∣ject to an escape, vide Dyer 163. Error cannot be assigned in that which the Court of Common Bench do as Iudges, vide 12 E: 4. 19. Conspiracy lies not for that which a Iustice doth as Iudge of Record.

Quaerens nil capiat per breve.

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

* 2.10REplevin brought by Walter Hickes against Simon Mounford, and others, the Defendants make Conusance as Bayliffs to Sir John Elliot, Executor of Richard Giddy: And that the place contain twenty acres, and was parcell of the Mannor of Trevelun: And that Thomas Archbishop of York, and Cardinall, and three others were seised of the

Mannor wherof, &c. in Fee,* 2.11 and the third of June 11 H: 8. by Deed inrolled granted to King H. 8. a Rent-charge of fifty Marks per annum out therof in Fee, with clause of Distresse, and convey the Rent by discent to E. 6. Mary, and Elizabeth, who by her Letters Patents gran∣ted it to Richard Giddy for life, who made the said Sir John Elliot his Executor, and died, and for such a summ arrear they Avow, &c.

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

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

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

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

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

And so Iudgment was given for the Defendants.

Mich. 8 Car. Col. versus Wilkes.

SAmpson Cole brought an action of Debt upon the Statute of 2 H. 6. against Leonard Wilkes, Tryall at the Bar:* 2.12 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 occupyed the Land, and ther∣fore the action well lies.

* 2.13And a Case was shewn, Mich: 8 Jac. An action of Debt was brought upon this Statute, by Sir John Gerard against two Tenants in Com∣mon, 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 acti∣on lies only against him which carried it away.

Pasch. 9 Car. Strilley's Case.

* 2.14VPon motion made in this Court for the amendment of a Procla∣mation of a Fine levied by Strilley of Lands in Nottinghamshire, Mich: 11 Eliz. The Proclamations endorsed by the Chirographer upon the Fine were well, but in the Transcript and Note of the Fine which is delivered to the Custos brevium by the Chirographer according to the Statute, the second Proclamation was entred to be made the twentieth of May, where it should have been the twenty third day of May, and that by the misprision of the Clerk: And it was moved that that might be amended.

And the Court was of opinion that it should be amended, for the In∣grossement 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 amend∣ment: But it being the misprision of the Clerk, it shall be amended, as in the case Coke lib: 8. Blackamores case.

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

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

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

And therfore it was awarded to be amended.

Pasch. 9 Car. Glasier versus Heliar.

Sussex

* 2.15GLasier brought an action upon the case for words against Heliar, and shewed, that three Colliers being in an house in Sussex, were feloniously burnt in the said house, and shewed, that two or three men were indicted, convicted, and executed for the said Murther, the Defen∣dant knowing therof, and intending to bring the Plaintiff in perill of his life,* 2.16 as accessary to the said Murther, sayd to him, Thou didst

bring Faggots a mile and a half to the burning of the Colliers: And af∣ter Verdict for the Plaintiff, and motion in Arrest of Iudgment, it was adjudged that the words were actionable: For if a Mansion-house be burnt feloniously, to say, You brought fire to set in the Thatch of the house which is burnt, it is actionable.

Iudgment pro quaerente.

Smith versus Cornelius.

Southamp.

JOhn Smith Town-Clark of Southampton,* 2.17 brought an action upon the case against one Cornelius an Attorney of this Court, and shew, that the Plaintiff was of good fame, and Town-Clark of the Major and Burgesses of Southampton, and was their Scribe, and had the custody of all Rolls, Pleas, and Certificates,* 2.18 and other proceedings be∣fore 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 Certifi∣cate to the Major and Burgesses in that Court, and the more thou stir∣rest in it, the more it will stink.

And it was adjudged that these words are not actionable.

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

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

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

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

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

Suff.

RAchel Edwards brought an action of Trespasse against Richard Laurence for breaking of her Close.* 2.19

The Defendant in Bar to the new Assignment, plead,* 2.20 that before the time of the Trespasse supposed to be done, one Francis Tayler was seised in Fee of the Tenements wherof, &c. and so being seised died, wherby it descended to Francis his Son and Heir, who being seised therof 8 Car. demised it to the Defendant for two years, by vertue wherof he entred, and gives colour to the Plaintiff by a Grant made to him by Francis the Father, where nothing passed therby, and so iu∣stifie.

The Plaintiff replyed, that long before Francis Tayler the Son had any thing, one Francis Tayler Grand-father of the said Francis was sei∣sed

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

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

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

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

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

Pasch. 10 Car. Dawe versus Palmer.

* 2.21JOhn Dawe Plaintiff against William Palmer, in an action upon the Case, and count, that wheras he was a Fuller, and had used the Trade of Falling, and therby acquired his livelyhood, and was of good Credit,* 2.22 &c. The Defendant said of him, Trust him not, for he

owes me a hundred pound, and is not worth one Groat: And at ano∣ther day he said, He is a Bankrupt Rogue; And upon Not guilty plea∣ded, the Iurors found for the Plaintiff, and gave entire Damages.

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

And for the other words, That he is a Bankrupt Rogue, that is resol∣ved Coke lib. 4. to be actionable: And it was a Case Pasch: 10 Car. in a Writ of Error brought in the Exchequer Chamber, upon Iudgment given in the Kings Bench, between Dunkin and Laycroft,* 2.23 for words spoken of a Merchant, who had been at Hamborow in partibus trans∣marinis, and there h••d used the Trade of a Merchant and Factor. Thou (innuendo the Plaintiff) camest over from Hamborow a broken Mer∣chant; And adjudged actionable, and so affirmed in the Exchequer Chamber. And upon all these Authorities the Court gave Iudgment for the Plaintiff.

Mich. 10 Car. Deanes Case.

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

If one be assaulted to be robbed in one Hundred,* 2.24 and he escape and flye into another Hundred, and the Theeves instantly pursue him, & rob him there, if the Hund. in which he was robbed should be solely charged.

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

Mich. 10 Car. Knight versus Copping.

RObert Knight brought an action upon the case against Valentine Copping one of the Attorneys of this Court, & count,* 2.25 That wheras one Edw. Loft had brought an action of debt for 30 l. against him: And therupon such processe was, that a non pros. was entred, & costs of 30 s. assessed for the now Plaintiff,* 2.26 the now Defendant being Attorney for the said Ed. Loft having notice therof, unduly and maliciously procured a judgment to be entred for the said Ed. Loft, against the now Plaintiff, & sued execution against him, wherby he was taken and imprisoned, untill he was delivered by a writ of Supersedeas.

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

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

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

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

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

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

Iudgment pro quaerente.

Pasch. 11 Car. Baker versus Hucking.

Adjudged B. Rs.

* 2.27TEnant in tail, and he in Reversion joyn by Deed in a Lease for life, he in Reversion devise the Land by his Will to one in Fee, and dieth, Tenant in tail dies without Issue, and the Heir of him in Reversion, and the Devises claim the Land.

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

And the difference was taken, when Tenant for life, and he in Re∣version joyn in a Lease by Deed (for without Deed it is first a Sur∣render,* 2.28 and then the Lease or Feoffment of him in Reversion) it shall be the Lease of Tenant for life, so long as he live, and after the Lease of him in Reversion, and yet they shall joyn in a Writ of Wast.

And in this case there is no question but if the Lease had been made solely by Tenant in tail, that then it were a Discontinuance, and the joyning of him in Reversion alters it not, for that amounts to nothing

but as a Confirmation, and is not like to Bredons case, Coke lib: 1. fol: 76. Where Tenant for life, and he in remainder in tail levy a Fine, for every one there passeth that which lawfully he may.

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

Iustice Crooke differed in opinion.

Mich. 11 Car. Lashbrookes Case.

Somerset.

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

The Defendant as to the force, &c. and to all besides the Entry plead Not guilty; And as to his entry into the Court and Kitchin,* 2.29 and the Tenements aforesaid of the new Assignment, he plead that he had brought an action against a woman for Trespasse, and had so procee∣ded that he recovered, and had execution directed to the Sheriff of So∣mersetshire, and therupon a Warrant directed to four speciall Bayliffs, to arrest the said Woman, and two of them at Minehead, in the Coun∣ty of Somersetshire, arrested her, and carried her to the house of the Plaintiff in Minehead, being a Common Inn, and the Defendant en∣tred into the said houses called the Entry and Kitchin, and the Te∣nements aforesaid of the new Assignment, to speak to the Bayliffs, and to warn them to keep her safe: And as soon as he could he returned, wherupon the Plaintiff demurred.

And now Henden took two Exceptions, the first was,

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

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

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

And Iudgment 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:* 2.30 And the opi∣nion

of the Court was, that they were not actionable, for there is not any Affirmative, that he was perjured, but a thing which is Arbitra∣ry, and saies not that he would do it. Iudgment 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 Wil∣liam Andrew,* 2.31 and Edward Andrew, and count, That the Defendants and one Francis A. became obliged to the Testator, &c. and that they did not pay it is the said Testator in his life, nor to the now Plaintiff, and one Francis Andrew Co-executor with the Plaintiff, who is sum∣moned, and the Plaintiff admits to prosecute alone without the same Francis, &c.

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

* 2.32Mich 2 Jac. Rot. 2663. Garret Trugeon Plaintiff against one An∣thony Meron and others the Administrators of Benjamin Scrivin up∣on a single Bill: The Defendants demand Oyer of the Bill, wherby it appears, that one John Simcocks was obliged to the said Trugeon joyntly and severally with the said Scrivin, Quibus lectis & auditis, the Defendants sayd, that the said Simcocks died intestate, and that the Administration of his Goods was granted to the now Plaintiff, who accepted the Burthen of the Administration, and Administred, the Plaintiff demurred, and Iudgment against the Plaintiff.

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

Mich: 9 Car. Banco Regis, Rot: 373. Anne Dorchester Executrix of Anne Row,* 2.33 Plaintiff, against William Webb, in Debt upon an Ob∣ligation of five hundred pounds, the Defendant demanded Oyer, wher∣by it appears, that the Defendant and one John Dorchester were obli∣ged joyntly and severally in the said Obligation.

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

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

And in this case it is not shewn, that the said Francis and Peter, or any of them proved the Will of the said Obligee, or that they admini∣stred his goods, or that they had any goods of the Obligor to administer, at the time of the death of the Obligee, as it ought to have been shewn: And the said Francis Executor of the Obligee, and also of the Obligor,

refused to be Executor to the Obligee, and never Administred, and never meddled with the Goods of the Obligee, and so the Debt is not released in Law, as by the said Case and former Iudgment appears.

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

Trin. 12 Car.

MEmorand. Vpon Petition exhibited to the King by the Priso∣ners of quality, which were in execution in the Fleet,* 2.34 Kings Bench, and Marshalsey, to have liberty in the time of Infection, and for preservation of their lives, to have liberty by Writs of Habeas Cor∣pus to go into the Country, upon security to be given to the Warden and Marshall for their return. The King (out of his great care of their safety) referred their Petition to the Lord Keeper Coventry, and that he, with the advice of the Iudges, should consider by what way it might be done: And the eighteenth day of June we attended the Lord Kee∣per at Durham-house: And therupon conference and consideration of a former Resolution which was at Reading in Mich. Term last, before the said Lord Keeper (where were present all the Iudges, besides my self.) That these abusive Habeas Corpus were not lawfull, and that the Warden and Marshall were then called and warned, that they should not suffer their Prisoners to go into the Country, as they had used to do, by colour of such Writs: This which followes was sub∣scribed.

WEE are of Opinion, that the Writ of Habeas Corpus is both Ancient and Legall; But as the Writ doth not, so no Rule can Authorize 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 Hert∣ford. Nor in the 35. of Eliz. in which year it was Ad∣journed to St. Albans. 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 Rea∣ding. (In all which years there were great and dange∣rous 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 yeilding obe∣dience

to Justice) then a course may be taken that some certaine house may be assigned for the Warden of the Fleet, in some good Town, remote from the Infe∣ction, and the like for the Marshall of the Kings Bench, in some other Town, where they may remove such Priso∣ners 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 House-keepers 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 Ju∣stice.

• John Bramsion 1.
• Richard Hutton 2.
• George Crooke 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 resolu∣tion, 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 praies 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. Iustice Hutton argued in the Exchequer Chamber in the Case Adjourned thither, upon a Sc••re facias by the King against Hampden for Ship-money, in which he was of opinion, that as well for the matter as for the form, upon divers exceptions to the pleading, Iudgment should be given against the King.

Afterwards, viz. 4. Maij. Thomas Hanson Batchelor of Divinity, and Parson of Creake in Northamp. came to the Court of Com∣mon Bench (Iustice Hutton, and Iustice Crawley then being there giving Rules and Orders) and said,* 4.1 I accuse Mr. Justice Hutton of high Treason, for which he was committed to the custody of the War∣den of the Fleet by Iustice Crawley; and after by the direction of the King, he was indicted in the Kings Bench, and convicted and fined to five thousand pounds to the King: And Iustice Hutton preferred his Bill against him there, and recovered ten thousand pound Dame∣ges.

Lord Digbies Case.

MEmorand. That in the Parliament holden primo Car. It was resolved by the Iudges upon conference concerning the Lord Digby, That when any Peer shall be proceeded against for Treason, that ought to be by Indictment, and that being done,* 4.2 then the King is to appoint a Peer to be Steward for the time, and then to proceed to Arraign him, or otherwise to transmit this Indictment by Certiorari to the Parliament, and there to proceed, vide 10 E: 4. 6. 1 H: 4. 1. vide Coke Lit: fol: 261. b. Or otherwise to prefer a Bill in the Parliament, which ought to be passed by both houses, and then it is Attainder by Parliament, and so it was done, 5 R: 2. 54.

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

Trin. 12 Car.

* 4.3QUaeries upon the Statutes of 1 Riz. cap: 9. 1 H: 7. cap: 2. 14 H: 8: cap: 2. the Decrees in the Star-chamber made 20 H: 8. and confir∣med 21 H: 8. cap: 16. 22 H: 8. cap: 8. 32 H: 8. 16. and other Statutes con∣cerning Aliens, and the Statute of 5 Eliz: cap: 4.

1. Whether the Statute of 5 Eliz. cap: 4. doth repeal the former Sta∣tutes concerning Aliens, taking Apprentices, Iourny-men, and Ser∣vants.

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

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

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

That all Aliens and Denizens are restrained by the Statute of 5 Eliz: cap: 4. That they may not use any Handycraft mentioned in the said Statute,* 4.4 unlesse they have served seven years as Apprentices within this Realm, according to the provision of this Statute: This was set down in writing by Sir John Banks his Majesties Attorney Generall present: Sir John Bramston chief Iustice of England, Sir John Finch chief Iustice of the Common Bench, Sir Humphrey Da∣venport chief Baron, Baron Denham, Iustice Hutton, Iustice Crook, Baron Trevor, Iustice Crawley, and Baron Weston, the other Iud∣ges being absent, viz. Jones and Vernon.

Hil. 12 Car. Souser versus Burton.

ONe Widow Souser brought an action of the Case against Burton, for these words, Thou old Witch, thou old Whore, leave oft thy witching, or else thou shalt be hanged or burned, if I can do it. And upon Not guilty pleaded, and Verdict for the Plaintiff, it was moved in Arrest of Iudgment; And it seemed to Lord Finch, Hutton, and Vernon that the action lay not, without shewing that she did any act of Witchcraft, for which the pain of Pillory and Imprisonment for two years should be inflicted, and the second time Felony: And that the words,* 4.5 Thou art an old Witch, or go away thou old Witch, are usuall words, and old Whore bears no action: And as to say, Thou shalt be hanged if I can do it, it is not possible that he could do it.

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

Hugles versus Drinkwater.

AN action of Account by William Hugles against Thomas Drink-water, for receit of eighteen pounds,* 4.6 by the hands of one William Appowell, to the use of the Plaintiff, the Defendant plead Ne un∣quer receivor per manus, &c. and found or the Plaintiff: And the De∣fendant before the Auditors plead, that he by the appointment of Willi∣am Appowell had paid it to one John Marsh for the Debt of the Plain∣tiff, and therupon Demurrer. And adjudged a bad Plea, and against his former Issue: And the said Appowell by whose hands he received the said summ, had not any power to appoint the Defendant to pay it to John Marsh, to whom the Plaintiff was indebted; and if that had been pleaded in Bar, of the Account to have been done by the appoint∣ment of the Defendant, it had been a good Bar, vide Dyer 29. 196. after ne unques receivor, and the truth was that he had been Receiver, and had paid it over by the appointment of the party, and yet by this Plea be hath lost the advantage therof.

An. 2. Car.

MEmorand. That the 19. day of May, An: 2 Car. all the Iudges be∣ing assembled at Serjeants Inn in Chancery Lane, by the com∣mandment of the King, the Attorney Generall propounded,* 4.7 that the King would be satisfied by our opinion, Whether any person which is arraigned of Treason of Felony, ought by the Fundamentall Lawes of this Realm to have Councell; And We all una voce answered.

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

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

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

Mich. 3 Car.

MEmorand. That the fifth of November, at Serjeants Inne in Fleet-street, there assembled the Lord Hide, Lord Richardson, Lord Walter, Iustice Doderidge, Baron Denham, Iustice Hutton, Iustice Jones,* 4.8 Iustice Whitlock, Iustice Harvey, Iustice Crook, Iustice Yel∣verton, and Baron Trevor, to consider of a Case which was propoun∣ded, which was;

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

The Question was, if it were Felony.

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

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

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

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

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

Another reason was, that the Statutes provide punishment for Cap∣tains which want of their number, or which pay not their Souldiers

within six daies after they have received their pay, upon pain of forfei∣ting all their Goods: And the Statute did not intend other Captains in this point, then was in the former and latter part therof.

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

It was agreed, that 7 H: 7. cap: 1. extends only to them who are re∣tained and pressed to serve the King upon the Sea, or upon the Land beyond the Sea; And the Statute of 3 H: 8. cap: 5. adds only the Land here: And the Statute makes departure without license from the Captain Felony, and the Statute 3 H: 8. without license from the Lievtenant: And the Statute of 7 H: 7. makes the tryall to be in the County where they shall be taken before the Iustices of the Shire, as they may try other Felonies within their Commission: The Statute of 3 H: 8. makes their tryall before the Iustices of the County, where they are taken; and this being a new Felony and made tryable against the Common Law (which appoint tryals by Iurors of the County where the Fact is committed) and appoint a speciall Iudge, viz. Iusti∣ces of Peace, that is only tryable before them, and not before Com∣missioners 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 Iusti∣ces 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.* 4.9 The Dedimus potestatem is tested 23 Jan: the Iudge certifie the Concord takes Febr. 14. which is two daies after the Term, at which time the Writ of Covenant is not depending, the Fine is haec est fina∣lis Concordia facta in Oct. Purif. And after it is recorded in 15 Pasch. and yet adjudged a good Fine, vide the Statute of 23 Eliz. 3. Dyer 220. b. Carels Case.

Mich. 4 Car. Jones versus Powell.

JOhn Jones Plaintiff, against James Powell Defendant, in an action •••• on the Case for a Nusance, count, That the Plaintiff, 10. August, 1 Caroli, was, and is, and for forty years last past, hath been possessed for divers years yet during, of a Messuage,* 4.10 in which he and his family did by the time aforesaid dwell: And by all that time hath been Regi∣ster to the Bishop of Gloc. and kept his Office there, that the said De∣fendant 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 Brew-house, and a Privy in the said house, and burned Sea-coles in the said Brew-house, so that by the Smoke, stench, and unwholsome vapors coming from the said Coles and Privy, the Plaintiff and his family cannot dwell in the said house without danger of their health. Not guilty pleaded, Ver∣dict for the Plaintiff. The Plaintiff prayeth Iudgment, and doth of∣fer for Authorities in this Case.

* 4.114 Ass. 3, 4 E: 3.37. 5 E: 3.47. new Book of Entries, fol: 19. in 5 Jac. between Smith and Mopham, an action upon the case for erecting a Tan-fat, with averment of corrupting the Aire and water, to the an∣noyance 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 ad∣judged.

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

* 4.12Trin. 29 Eliz Bland against Mosely, an action of the case for stop∣ping Lights in London, adjudged a void Prescription, to build so high that the Neighbors lights are therby stopped in a City.

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

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

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

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

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

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

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

Notes

• * 1.1

  Case.
• * 1.2

  Words.
• * 1.3

  Johnson and Atewod.
• * 1.4

  Pewall and Vardoffe.
• * 1.5

  Case.
• * 1.6

  In considerati∣on that the Obligor pay the summ, the Obligee as∣sume to deli∣ver the Bill.
• * 1.7

  Greenwood and Becket.
• * 1.8

  Sci. fac. Sci. fac. a∣gainst the Sheriff for ta∣king of insuffi∣cient Pledges.
• * 1.9

  Somerford and Beamont.
• * 1.10

  Trespasse.
• * 1.11

  What things are smal tithes and what great.
• * 1.12

  Beddingfields Case.
• * 1.13

  Potmans case.
• * 1.14

  In Ravish∣ment of Ward brought by Executors, are Non-sui∣ted, whether they shall pay costs.
• * 1.15

  Pardon.
• * 1.16

  Case.
• * 1.17

  Notice.
• * 1.18

  Hodges and Baldwins case.
• * 1.19

  Case.
• * 1.20

  Recovery in trespass for ta∣king of goods, is no ba•• to an action upon the case sur trover.
• * 1.21

  Case.
• * 1.22

  Where the Nisi prius shall be amended.
• * 1.23

  Debt.
• * 1.24

  Debt upon a penall Sta∣tute is not gone by the death of the King.
• * 1.25

  Debt.
• * 1.26

  Debt,
• * 1.27

  Lease made by Feme in spe∣ciall tail.
• * 1.28

  Consideration in an Assump∣sit, ex post facto.
• * 1.29

  Ejectione firmae
• * 1.30

  Devise.
• * 1.31

  If a Feme shal have a superse∣deas upon an Exigent a∣gainst Baron and Feme.
• * 1.32

  Where the of∣fice of the kee∣per of a Park is gone if the K••ng dispark it.
• * 1.33

  Where a Lord may bri•• sworn.
• * 1.34

  Habendum to parties not named in the Deed.
• * 1.35

  Advowson in grosse for life.
• * 1.36

  Quid juris cla∣mat.
• * 1.37

  Case. Assumpsit in consideration of defending Suit in main∣tenance of a Title of Com∣mon.
• * 1.38

  Debt.
• * 1.39

  Obligation conditioned for the pay∣ment of Rent, demand is not necessary to be alled∣ged after ge∣nerall perfor∣mance plead∣ed.
• * 1.40

  Specot and Shere.
• * 1.41

  Quare Impedit. Tenure.
• * 1.42

  Formedon in Descender, Act of Court shall be amen∣ded.
• * 1.43

  Where an In∣fant ought to appeare by Gardian, and where by Pro∣chein amy.
• * 1.44

  Simpsons case.
• * 1.45

  Amendment.
• * 1.46

  Trespasse. Which shall be said a Pa∣rish Church within the act of 43 Eliz. for the mainte∣nance of th•• poor.
• * 1.47

  Replevin.
• * 1.48

  Where Gran∣tee of a Rent-charge takes a Lease of part of the Land, and surren∣ders it, the Rent shall be revived.
• * 1.49

  Sci. fac.
• * 1.50

  To what day a Judgment shall have re∣lation.
• * 1.51

  Gillinghams case.
• * 1.52

  Replevin. Tenant for life with a re∣mainder to him in tail ex∣pectant, and remainder in fee, grant a rent in fee, & afterwards had fee by fine.
• * 1.53

  Quare Impedit
• * 1.54

  Traverse upon Traverse.
• * 1.55

  Crachfords case.
• * 1.56

  Rescous by the Plaintiff in the primer action.
• * 1.57

  Information where it shall be brought.
• * 1.58

  Resolutions concerning Innes, and who may keep an Inne, and how they may be suppressed.
• * 1.59

  Case.
• * 1.60

  Consideration in an Assumpsit
• * 1.61

  Custom in a Mannor to make a•• Lease for years.
• * 1.62

  Lease by Ba∣ron and Feme without re∣servation of a∣ny Rent.
• * 1.63

  Custom, that the Lord have a Feild-course over the Lands of his Coppyholders if the Tenant inclose it is no forfeifture.
• * 1.64

  Case.
• * 1.65

  Words.
• * 1.66

  Where accep∣tance of a new Lease for years, makes a surrender of the former.
• * 1.67

  Baker and Wil∣loughby.
• * 1.68

  Thompson and Green. Mills and Whitewood.
• * 1.69

  In a recovery if the Town be omitted the Land do nor pass.
• * 1.70

  Case.
• * 1.71

  Where the request is the cause of action
• * 1.72

  Quest.
• * 1.73

  Sir William Alephs Case.
• * 1.74

  Case. Assumpsit in consideration of forbearance
• * 1.75

  Arrearages of Rent reserved by Indenture is not within the act of 21 Jac. of Limi∣tations.
• * 1.76

  Rationabl. pars. bonorum is not within the •• Statute of 21•• Jac. of Limi∣tations.
• * 1.77

  How a Writ of Wast shall be where there is a lease for life, re∣mainder in fee.
• * 1.78

  Case. Words.
• * 1.79

  A Cond••tion to resign a Benefice up∣on request,
• * 1.80

  Jones Case.
• * 1.81

  Tryall of an action of Ac∣count upon receit in two Counties.
• * 1.82

  Fine to two, and the heirs of one to the use of them two in fee.
• * 1.83

  Filing of a Writ of En∣try many Termes after
• * 1.84

  Case. Words.
• * 1.85

  Arrowes case.
• * 1.86

  Words.
• * 1.87

  Replevin.
• * 1.88

  Demand of Rent.
• * 1.89

  Nich and Lang∣ford. Skinner and Amery. Borman and Bower.
• * 1.90

  Indictment for Rape.
• * 2.1

  Indictment for Buggery.
• * 2.2

  Where a Wife may give Evi∣dence against her Hu••band.
• * 2.3

  Buggary sans Penetration.
• * 2.4

  The Court of Common Bench award not execution upon a Judg∣ment given in grand Ses∣sions in Wales.
• * 2.5

  Remainder where it shall be said Con∣tingent.
• * 2.6

  The Lord Derbies case.
• * 2.7

  Farringtons case.
• * 2.8

  Case.
• * 2.9

  An action of the case lies not against a Sheriff, for taking of in∣sufficient Bail being Iudges.
• * 2.10

  Replevin.
• * 2.11

  Traverse of a day.
• * 2.12

  Debt. Debt upon the Statute of the 2 E. 6. for Tithes.
• * 2.13

  Sir John Ge∣rards case.
• * 2.14

  Amendment of the procla∣mation of a fine.
• * 2.15

  Case.
• * 2.16

  Words.
• * 2.17

  Case.
• * 2.18

  Words.
• * 2.19

  Trespasse.
• * 2.20

  Traverse of Seisin.
• * 2.21

  Case.
• * 2.22

  Words.
• * 2.23

  Dunkin and Laycroft.
• * 2.24

  Hue and Cry.
• * 2.25

  Case.
• * 2.26

  An action of the case for •• entring Judg∣ment after non pros.
• * 2.27

  Tenant in tail and he in Re∣version make a I. case Pro ut. aut. vic.
• * 2.28

  Discontinu∣ance.
• * 2.29

  A Warrant to four, and two of them exe∣cute it.
• * 2.30

  Words.
• * 2.31

  The Obligor and the Obli∣gee make the same person Executor.
• * 2.32

  Trugeon and Meron.
• * 2.33

  Dorchester and Webb.
• * 2.34

  Liberty may not be given to Prisoners by force of a Habeas Corpus.
• * 4.1

  Words against Justice Hutton.
• * 4.2

  Where tryall of Treason by the Statute of 3 Jac. cap. 4. shall be, and how.
• * 4.3

  Quaeries con∣cerning Ali∣ens.
• * 4.4

  Resolves up∣on the Statute of 5 Eliz. cap. 4. concerning Aliens.
• * 4.5

  Words.
• * 4.6

  In Account payment by appointment of the Plain∣tiff, is no plea before the Au∣ditors where the Issue was Ne unques re∣ceivor.
• * 4.7

  In what cases a prisoner, ar∣raigned shall have Coun∣cell.
• * 4.8

  Resolves con∣cerning Soul∣diers.
• * 4.9

  A Fine of Oct. Puris. where the Caption was, Feb. 14. 1.
• * 4.10

  Nusans 1.
• * 4.11

  Smith and Mopham.
• * 4.12

  Blande against Mosely.