Trin. 15. Jac. In the Kings Bench, entred, Hill. Jac. Rot. 194. Brooks Case.

IN an Ejectione firmae brough by one Brook against Brook, the Case was thus.

Iohn Wright a Copyholder in Fee, 10 Eliz. surrendred his Land into the hands of the Lord by the hands of Tenants, according to the Custom, &c. without saying, to whose use the Surrender should be; And at the next Court the said Iohn Wright was admitted Habendum to him and his Wife in Tail, the remainder to the right Heirs of Iohn Wright, and the Wife of Iohn Wright now Defendant was seised from the time of * the admittance untill this day: And it was objected by the Counsell of the Plaintiff, that the surrender was void▪ because no use was limitted, and ther∣fore by constitution of Law ought to be to the use of the Surrender, as if a Feoffment be made and no Use limited, it shall be to the Use of the Feoffor, or as it is in Sir Edward Cleers Case Coke lib. 6. 18. If a Feoffment be made by one to the use of his last Will, he hath the use in the mean time.

2. That the admittance was not available to passe an Estate to the Wife, for she was not named in the Premisses but only in the Habendum, and the Office of an Habendum is to limit the Estate and not the person, and therfore it is said in Throgmorten and Tracies Case in Plowd▪ com. That if one be named to take an Estate in the Habendum, where he was not named at all in the Premisses, this is not good.

But it was resolved by the whole Court for the first point, that the subse∣quent Act sh•ll explain the Surrender, for, Quando abest Provisio partis, ad∣est provisio legis: And when the Copyholder accepts a new admittance, the Law intends that the Surrender generally made was to such an Vse, as is specified in the admittance, and the Lord is only as an Instrument to con∣vey the Estate, and as it were put in trust to make such an admittance, •s he who surrenders would h•ve him to make: And Crook Iustice said, Fides adhibita fidem obligat.

Page  126 For the second point it was also agreed by the Court that the Wife shall take by this admittance, albeit she were not named in the Premisses, but only in the Habendum; and they agreed, that in Feoffments and Grants, the party that is not named in the Premisses shall not take by the Habendum: and therfore Throgmorton and Tracies Case (as to this point) is good Law; But this case of a Copyhold is like to the case of a Will, or to the case of Frank-marriage, in which it is sufficient to passe an Estate, albeit the par∣ty be only named in the Habendum, and if it should be otherwise the Estates of many Copyholders would be subverted: And so they resolved that Iudg-should be given for the Defendant.

The same Term in the same Court. Laurking and Wildes Case.

THe Rector of the Church of livelled in the spirituall Court, for the Tithes of a riding Nag, where the case was; That a man let his Land, reserving the running of a Horse at some time, when he had oc∣casion * to use him there: The Defendant shewed this matter in the Court by his Counsell, and prayed a Prohibition, and avers, that for the same Land in which the Horse went he paid Tithes. And by the Court, nigh London, a man will take a 100. or 200. Horses to Grasse, now he shall pay Tithes for them, or otherwise the parson shall be defeated. But in this case, if the Defendant alledge and prove that it was a Nag for labour, and not for profit, a Prohibition lies.

The same Term in the same Court. Havergall versus Hare.

IN an Ejectione firmae brought by Havergal against Hare, the Case was thus. * A Rent of 20 l. per annum was granted out of Green acre to one and his Heirs, to be paid at Michaelmas, and the Annunciation of our Lady, by e∣quall portions, and the Grantor covenants, that if the Rent of 20 l. be arrear by the space of twenty daies, that the Grantee may dist•ain, and that if there be not sufficient distresse upon the Land, or i• there be a Rescous Replevin, or Pound-breach, that then it shall be lawfull for the Grantee and his Heirs to enter and retain the Land to them and their Heirs, untill the 20 l. be paid, 10 l. for one half years Rent was in arrear, and for it an entry was made.

Mountague chief Iustice, and Doderidge Iustice, there can be no entry made when 10 l. only is behind, for the words of the Deed are, that if the Rent of 20 l. be behind, that the Grantee and his Heirs may enter, and if he shall enter now he shall retain the Land for ever, for the 20 l. shall never be paid.

Crook and Haughton Iustices, contrary, for if 10 l. be arrear, the Rent of 20 l. is arrear; for Haughton said, In an Assise of Rent of 40 l. where part is arrear, yet he ought to bring his Assise for the whole Rent of 40 l. for the Writ ought to agree with the Deed.

Doderidge agreed with him in the case of an Assise, but not in the prin∣cipall point.

Page  127 And for the second point it was agreed by them all, that upon the entry of the Grantee, he shall have a Fee-simple determinable, admitting the entry for the 10 l. to be good.

The same Term in the same Court, and it is entred, 14 Jac. Rot. 1484. Robinson versus Walter.

RObinson brought an Action of Trover and Conversion against Walter, and upon the whole matter the case appeared to be this.

A Stranger took the horse of the Plaintiff, and sent him to a common Inn, and there he remained for the space of half a year, at which time the Plaintiff had notice where his Horse was, and therupon he demanded him of the Inn-keeper, who answered that a person unknown left the Horse with him, and said, that he would not deliver the Ho•se to the Plaintiff unlesse he would pay for his meat▪ which came to 3 l. 10 s. for all the time, and also would prove that it was his Horse, upon which the Plaintiff demurred in * Law.

And it was resolved by Mountague chief Iustice, Crook, and Doderidge, Iustices (Haughton Iustice dissenting) that the Defendants plea was good, for the Inn-keeper was compellable to keep the Horse, and not bound at his peril to take notice of the Ownder of the Horse. And by the custom of Lond. if a horse be brought to a common Inn, wher he hath (as it is commonly said) eaten out his head, it is lawfull for the Inn-keeper to sell him, which case of the custom implies this case. And there is a difference where the Law compels a man to do a thing, and where not; As if the Lievtenant of the Tower brings an Action of debt for Dyet against one who was his Prisoner, in this case the Defendant cannot wage his Law, because the Law compels the Lievtenant to give Victuals to his Prisoner, otherwise if another man brings an Action of debt for Dyet, and in the case at the Bar the Inn-kee∣per was compellable. And Doderidge said, that if the Law were as the Plaintiff would have it, it were a pretty trick for one who wants a keeping for his Horse. And Mich. 6 •ac. in the Kings Bench, between Harlo and Ward, the like was resolved as was cited by Barkesdels of Counsell with the Defendant.

Mich. 14. Jac. In the Kings Bench. Rawlinson versus Green.

A Copyholder surrendred out of Court, according to the custom of the Mannor, which at the next Court was presented, and entry therof made by the Steward, Scilicet Compertum est per homagium, &c. but no ad∣mittance; Afterwards Cestuy que use surrenders before admittance, and the first Copyholder surrenders to the Plaintiff: And in this case there were two questions.

1. Whether he may surrender before admittance?

2. Who shall have the Land? whether the first Copyholder, or the Lord? Haughton Iustice held that he could not surrender before admittance, and Page  128 the entry of the surrender doth not make an admittance, for this being the * sole act of the Steward, shall not bind the Lord, and it is not like to the usuall fo•m of an admittance, for that is, Dat Domino de fine fecit fi•elitatem & admissus est inde tenens. Doderidge Iustice agreed and said, that in Hare and Brickleys case, the admittance of a Copyholder was compared to the indu∣ction to a Benefice which gives the possession.

Hillary 14. Jac. In the Kings Bench. Sir John Pools Case.

Three Executors brought an Action of Debt, and one only declared, and they were ready for a triall in the Country, and now it was moved that the Declaration might be amended, and the names of the other Executors incerted: but per Curiam this cannot be without the assent of the parties.

Pasch. 15. Iac. In the Kings Bench. Cooper versus Smiths.

AN Action upon the Case was brought for these words; viz Waterman, * and thou (Innuende the Plaintiff) hast killed thy Masters Cook Innuen∣de, &c. and I will bring thee in question for thy life: And after Verdict for the Plaintiff, it was moved in Arrest of Iudgment by the Counsell of the Defendant, that the words were not actionable for the incertainty, inasmuch as it doth not appear who was his Master, nor that his Master had a Cook.

Mountague chief Iustice said, that the words were actionable, and albeit * an Innuendo cannot make a thing that is uncertain certain, but shall serve as a Predict, yet the words import that he had a Master, and that his Master had a Cook, to which all the Court agreed, and Iudgment was given for the Plaintiff.

And another Action was brought for these words, Scil. Thou hast sacrificed * thy Child to the Devill; and adjudged that the words were actionable.

Mich. 15. Iac. In the Kings Bench. Lee versus Brown.

IN an Ejectione firmae brought by Lee against Brown, the Case was this. * Tenant in Tail of Copyh•ld Land surrendred the same into the hands of the Lord, to the use of I. S. wherupon two points did arise. 1. Whether Copyhold Land be within the Statute of Donis conditionalibus, so that i• may be intailed. 2. Whether the Intail may be cu• off by the surrender.

Doderidge Iustice said, as to the first point, that it hath been a great doubt, whether it may be intailed, but the common and better opinion was, that by the same Statute co-operating with the custom it may be intailed, and with Page  129 this agrees Heydons case in my Lord Cokes 3. Report, and so was the opinion * of the Court.

And for the second point, their opinion also was, that it could not be cut off by surrender, unlesse it were by speciall custom, and they directed the Iury accordingly: And it was said to maintain this custom, it ought to be shewn that a Formedon had been brought upon such a Surrender, and Iudgment given that it doth not lye; yet it was agreed that it was a strong proof of the custom, that they to whose use such Surrenders had been made, had enjoyed the Land against the Issues in Tail: And it was said by the Counsell of the Defendant, that there was a Verdict for them before in the same case, which they could prove by witnesses, but the Court would not allow such a proof because it was matter of Record, which ought to be shewn forth.

In the same Term in the Common Pleas. May versus Kett.

AN Action upon the Case was brought for these words; viz. Thou hast * stoln my Corn out of my Barn; And it was moved in Arrest of Iu•g∣ment, because he had not said how much he had stoln, and perhaps it was of small value: and yet it was adjudged that the Action would lye, for it is at least petit Larceny: But if he had said, that he had stoln his Corn generally, it had not been actionable, for it might have been growing, and then it had been but a Trespasse.

The same Term in the Star Chamber. Riman versus Bickley, and others.

IOhn Riman exhibited a Bill in the Star Chamber, against Thomas Bick∣ley, and Anne his Wife, Dr. Thorn, Mr Goulding, and others Defen∣dants, the said Anne was first married to Devenish Riman the Plaintiffs Son, and between them were many •ars and dis•greem•nts, and the said Devenish was much given to drinking, and other Vices, and divers times did beat and abuse his Wife, and was also jealous of the sai• Thomas Bick∣ley, and his Wife being at a certain time at Supper with Dr. Thorn, Goul∣ding, and others, spake such words as these (having communication th•t her Husband did beat and abuse her) to wit, That she heard that his Father had that quality, and being once whipt for it, was the better ever after, and that if she thought it would do her Husband any go•d, she would willing∣ly bestow 40 s. on some body to give him a whipping wherupon G•ulding said, that he would give him a Med•cine for his M•l•dy, and within two daies after he came in the night in wom•ns apparrell, with a Weapon under his Cloak, and with a Rod, and wen• into the House and Chamber of the said Devenish, and would have whipped him, and in striving together, there was some hurt done on either side, but G•ulding not being able to effect his purpose, fled, and this was conceived to be by the procurement of Anne his wife: And not long after Devenish fell sick, and sent to his said wife for cer∣tain necessaries, which she would not send him, and presently after Deve∣nish died, and she refused to come to his buriall.

Page  130 And although it were much disliked that Devenish should abuse his Wife in such uncivill manner, as to strike and beat her, and (as Coke late chief Iustice said) it is not lawfull by the Act Military for one man to strike ano∣ther in the presence of Ladies, yet it was resolved by the whole Court, that it was a great misde meanor in the Wife, and uncivill and undutifull carri∣age in her to do so to her Husband, as they use to do to Children or fools, to wit, to give them the Whip, and so to disgrace and take away the good name of her Husband, which, viz. A mans good name and his Childrens, are the two things which make a man live to Posterity; as was said by Sir Francis Bacon Lord keeper: and the Court fi•ed the Wife 500 l. and it was said, that Thoma• Bickley her no• Husband well deserved to pay this Fine, because he was too familiar with her in the time of his Predecessor, and as the Bishop of London said, Devenish Rimon lay upon her hands, and Thomas Bickley upon •e• heart: And to aggravate this matter, a Letter was shown whi•h Devenish Rimon wrote to his Wife, in which he called her Whoor, and told her somwhat roundly of her faults, and she wrote back to him in the Marge•t, that he lyed, and wished him to get a better Scribe for his next L••ter, for he was a Fool that wrote that, wherin she called him Fool by craft: And Goldings offence was acc•vnted the greater, because he was a Minister, so that he was fined 500 l. also: And Coke said, that the course of this Court was that if any were fined who is not able to pay it Respondeat superior, he that is the principall and chief agent therin must answer it, for otherwise poor men might be made Instruments of great mischief, who are not able to answer, and the greater Offenders shall escape, which the Lord Keeper confirmed. And as to Doctor Thorn he was acquitted by all: And the Bishop of London said, that they had thought to have troad upon a Thorn, and they gat a Thorn in their foot: And by Coke, if Devenish Rimon had di∣ed upon it, it had been capitall in the Wife who procured it, for it was an unlawfull Act.

The same Term in the Kings Bench. Wescot versus Cotton.

THe case was this. An Infant Executor upon an Action brought against * him appeared by Attorney, where he ought to appear by Guardian, and it was resolved by the Court that this was Error, for this doth much concern the Infant, in as much as by his false plea he shall be bound to •nswer of his own Goods, if he hath no Goods of his Testator, and therfore in a 11 E. 4. 1. he hath remedy against his Guardian for pleading a false P•ea.

And by Doderidge, if he hath no Guardian, the Court sh•ll appoint him a Guardian. And if an Infant bring an action as Executor by Attorney, and hath Iudgment to recover, this is not erronious, because it is for his bene∣fit; so per Curiam, the difference is where he is Plaintiff, and where he is Defendant: And there is another difference where he is Executor, and where not, for being Executor, his Plea might have been more prejudiciall to him, and Coke lib 5. Russels case was agreed for good Law, for an In∣fant may be Executor, and may take money for a Debt, and make a Release and give an Acquittance, but not without a true consideration and payment of the money.

The same Term in the same Court. Thomas Middletons Case.

THomas Middleton, alias Strickland was condemned for a Robbery at the * Assises in Oxford, after which he made an escape, and being taken a∣gain he was brought to the Bar, and upon his own confession that he was the same party who did the Robbery, and that he was condemned for it, the Court awarded execution: And Mountague chief Iustice said, th•t was no new case, for it had been in experience in the time of E. 3. and 9 H. 4. and 5. E. 4. that the Court might so do upon his own confession: And because the Sheriff of Middlesex did not give his attendance upon the Court in this case, nor came when he was called, the Court fined him 10 l, And Mountage said, that it shall be levied by proces out of the Court, and also all other Fines there assessed and not estreated into the Exchequer, for then the party might compound for a matter of 20 s. and so the King be deceived.

The same Term in the same Court. Gouldwells Case.

IOhn Gouldwell seised of Land in Socage Tenure devised them to his Wife for life, the Remainder to John Gouldwell his Son and his Heirs, upon Condition that after the death of his Wife he shall grant a Rent-charge to Steven Gouldwell and his Heirs, and if John Gouldwell dye with•ut Heirs of his body, that the Land shall remain to Steven Gouldwell in Tail; the Wife dieth, John Gouldwell grants the Rent accordingly, Stephen Gould∣well grants the Rent over: John Gouldwell dies without Heir of his body, and the second Grantee distrains for the Rent arrear, and Stephen Gould∣well brings a Replevin: And it was urged by the Counsell for the Plain∣tiff that this Rent shall not have continuance longer then the particular E∣state, and cited 11 H. 7. 21. Edri•ks case, that if Tenant in Tail acknow∣ledge a Statute this shall continue but during his life: and Dyer 48. 212. But it was agreed per Curiam that the Grantee was in by the Devisor, and not by the Tenant in Tail, and therfore the Grant may endure for ever.

But for the second point, this being to him in Remainder, the intent of the Demisor is therby explained that he shall have the Rent only untill the Remainder come in possession, for now the Rent shall be drowned in the Land by unity of possession.

3. It was agreed and resolved, that by the granting of the Kent over this was a confirmation. And Mountague said, that it was a confirmation du∣ring the Estate Tail, and shall enure as a new grant afterwards: And Haughton and Doderidge said, that they would not take benefit of the grant over by way of confirmation, for as Haughton said, this enures only ought of the Devisor, and he hath power to charge the Land in what manner he plea∣seth▪ and it is like to an usuall case, as if a man makes a Feoffment in Fee to the use of one for life, the Remainder over, with power to make Leases, and after he makes a Lease, this is good against Tenant for life, and him in the Remainder also: And I have considered what the intent of the Devisor should be in granting of this Rent, and it seems to me, that in as much as the Land is limited in Tail, and the Rent in Fee, that by this the Grantee shall have power to grant or dispose of the Rent in what manner he would: Page  132 but if the Land had been in Fee, I should have construed his intent to have been, that the Grantee should have the Rent only untill the Remainder fall; to which Doderidge agreed, who said, that we are in the case of a Will, and this construction stands with the intent of the Devisor, and stands with the Statute, which saies, Quod voluntas Donatoris est observanda.

The same Term in the same Court. Baskervill versus Brook.

A Man became Bail for another upon a Latitat in the Kings Bench, and before Iudgment, the Bail let his Lands for valuable consideration: * And afterwards Iudgment was given for the Plaintiff. And now it was debated, whether the Land Leased shall be liable to the Bailment: and it was said by Glanvill of Councell with the Lessee, that it ought not to be li∣able, and he put a difference between a Bailment in this Court, and a Bail∣ment in the Common Pleas, for there the Suit cometh by originall, and the certainty of the debt or demand appeareth in the declaration, and therfore then it is certainly known from the begining of the Bailement for what the Bail shall be bound: But in this Court upon the Latitat, there is not any certainty untill Iudgment given, before which the Land is not bound, and now it is in another mans hands, and therfore •ot liable, and he puts Hoes case, Co. lib. 5. 70. where i• was resolved that where the Plaintiff releaseth to the Bail o• the Defendant upon a Suit in the Kings Bench before Iudg∣ment, all Actions, Duties, and Demands, that this Release shall not bar the Plaintiff, for there is not any ce•tain duty by the Bail before Iudgment, and therfore it cannot be a Release, and he cite• the case of 21 E. 3. 32. up∣on an account, and said that it was like to a second Iudgment, in that which reduceth all to a certainty, and therfor. &c.

But it was said by Mountague and Crook, that the Lessee shall be bound. for otherwise many Bailments and Iudgments shall be defeated, which will bring a great Inconvenience: And Mountague said, that it was like to the case of a bargain and sale of Land, which after it is Inrolled, within six moneths shall relate to the beginning of the Bargain, so upon the Iudgment given, relation is made from the time of the Bailment. But Haughton be∣ing contra, therfore, Curia advisare vult.

The same Term in the same Court. The Earl of Shrewsburies Case.

VPon a Verdict, a rule was given to have Iudgment, and this was upon the Thursday, and upon S••u•day after th• party that was Plaintiff di∣ed, and it was moved to have a Writ of Error, because it was said, that the party died before Iudgment, in as much as of course a•ter the Verdict, and the •ule given for Iudgment, there are four daies given to speak in Arrest * of Iudgment; ••o so as Yelverton Attorney-generall said, he died before Iudgment absolutely given: and he moved the Court to have a Supersedeas: And it was agreed that it w•s in the discretion of the chief Iustice, Ex offi∣cio, to allow a Writ of Error, but because it was a cause of great conse∣quence, he took the advice of the Court, and it was agreed that a Writ of Error was a Supersedeas in it self, yet it is good to have a Supersedeas also; and if the Writ of Error had been allowed, the Court could not deny the par∣ty Page  133 a Supersedeas: But because the Writ of Error was not allowed, and al∣so because no Error appeared to the Court, for where Iudgment is entred, this shall relate to the time of the rule given: It was resolved that no Writ of Error should be allowed, nor any Supersedeas granted.

The same Term in the same Court. Rones Case.

IN an Ejectione firmae brought by the Lessee of Rone, Incumbent of the Church of Dallinghoe in Com. Suff. It was found by speciall Verdict, that the King was the true Patron, and that Wingfeild entred a Caveat, in vita Incumbentis, he then lying in Extremis, scilicet, Caveat Episcopus ne quis ad∣mittatur, &c. Nisi Convocatus, the said Wingfeild; the Incumbent dies, Naunton a stranger presents one Morgan who is admitted and instituted, afterwards the said Wingfeild presents one Glover who is instituted and in∣ducted, and afterwards the said Rone procure a presentation from the King who was instituted and inducted, and then it came in question in the Spiri∣tuall Court who had the best right, and there sentence was given that the first institution was Irrita vacua & inanis, by reason of the Caveat, & then the Church being full of the second Incumbent, the King was put out of posses∣sion, and so his presentment void: But it was adjudged and resolved by all the Court for Rone, for 1. It was resolved that this Caveat was void, because it was in the life of the Incumbent. 2. The Church upon the Institution of Morgan was full against all but the King, and so agreed many times in the Books, and then the presentation of Glover was void by reason of the super∣institution, and therfore no obstacle in the way to hinder the presentation of Rone, and therfore Rone had good right: And if the second institution be void, the sentence cannot make it good, for the Spirituall Court ought to take notice of the Common Law, which saith, that Ecclesia est plena & con∣sulta, upon the institution, and the person hath therby Curam animarum. And as Doderidge Iustice said, he hath by it Officium, but Beneficium comes by the Induction: And although by the Spirituall Law the institution may be disannulled by sentence, yet as Linwood saith, Aliter est in Anglia, who is an Author very well approved of amongst the Civilians: And Doderidge put a case out of Doctor and Studient, the second Book: If a man devise a summ of money to be paid to I. S. when he cometh to full age, and afterwards he sues for it in the Spirituall Court, they ought to take notice of the time of full age, as it is used by the Common Law, to wit, 21. and not of the time of full age as it is used amongst them, to wit, 25. So in this case at the Bar, for when these two Laws met together, the Common Law ought to be preferred: And when the Parson hath institution, the Arch-deacon ought to give him Induction: And see Dyer 293. Bedingfeilds case cited by Haughton to accord with this case.

The same Term in the same Court. Taylors Case.

JOhn Taylor a Citizen and Alderman of Glocester, was put out of his place by the Common Counsel of the City, for some misdemeanor, and he sued out Page  134 a Writ of Restitution, and for that the cause of his displacing was not suffi∣cient * his Writ was allowed, by reason wherof the other Alderman who was elected in his place was to be removed, for the number of Aldermen was full: But Hazard another Alderman, to the end that the new elect (who now was Major) should not be displaced, was contented to surrender his place, in consideration of 10 l. a year granted to him by the Corporation for term of his life, with which the Wife of Hazard was not content, and therfore he would have left his agreement: And therupon the question was, whether he might surrender, or not: And it was said by Coventree Sollicitor, that he cannot; and he cited Middlecots case an Alderman of B. where the opini∣on of the Court was, 13 Eliz. that he cannot surrender: Doderidge, per∣haps they would not except his surrender: Mountague said, that Alderman Martin of London, gave up his Aldermans place, and without question any man in such a case may surrender or leave his place, to which the Court a∣greed, and therfore it was ordered that Hazard shall have his 10 l. a year, and that he shall stand to his first agreement.

The same Term in the same Court. May and Samuels Case.

AN action of Debt was brought upon an Obligation, the Condition wher∣of was to stand to the Arbitrement of John S. concerning all matters be∣tween them to the time of the submission, who arbitrates that the one shall pay 20 s. and that the other shall make a generall release to him of all mat∣ters, from the beginning of the world to the time of the arbitrement. *

Haughton Iustice, this is an arbitrement but of one part, and therfore void, but if it had been only that the one shall pay 20 s. it may be good, for it shall be intended that the other by reasonable construction shall be discharged or acquitted, to which Crook and Doderidge Iustices agreed. But by Moun∣tague chief Iustice, it ought to be specified; yet they all agreed, and so it was adjudged that this was a void arbitrement, for it was of the one part only, to wit, that he shall pay 20 s. for the other part for the release to the time of the arbitrement was not within the submission; so if the arbitrement had been, that the one shall make a release, or shall be discharged or acquitted without speaking of the other, this being on the one part only is a void arbi∣trement, vide Co. lib. 8. Baspoles case, and 7 H. 6. 40. accordingly.

The same Term in the same Court. Vaughans Case.

THomas Dedham had to Apprentice one Holland, who got his Main with Child, and afterwards departed from his Masters Service, and staid a whole night with Vaughan his Kinsman, and Dedham procured a Warrant from S. Stephen Soame a Iustice of Peace, that the Constable should bring the said Apprentice to order according to Law, and because that Vaughan perswaded him to withdraw himself, so that he should not be taken by virtue of the Warrant he was indited.

And it was agreed that it was lawfull for Vaughan to lodge and relieve him, albeit he knew his misdeeds, they being no Treason or Felony: But Page  135 Haughton Iustice took exception to the Inditement, because no place appea∣red where he perswaded him to withdraw himself from the Warrant, or in truth that he did hide himself from the Warrant, for if he did not so, the perswasion was nothing.

And Doderidge took another exception to the Warrant, because the Sta∣tute saith, that two Iustices, of which one of them shall be of the Quorum, shall proceed in such cases against the Malefactor, and that they shall com∣pell the party to allow means for the education of the Infant, or otherwise the Offendor shall suffer corporall punishment, and so this Warrant not be∣ing speciall according.

Pasch. 16. Jac. In the Star Chamber. Wrennums Case.

SIr Henry Yelverton Attorney-generall, exhibited an Information in the Star Chamber, against one Wrennum, Ore tenus, because he had divers times petitioned the King against Sir Francis Bacon Lord Chancellor, pretending that the said Lord Bacon had done great Injustice to him, in gran∣ting an Injunction, and awarding Possession of Land against him, for which he had two decrees in the time of the former Chancellor: And also he made a Book of all the proceedings in the said cause between him and one Fisher, and dedicated and delivered it to the King, in which he notoriously traduced and scandalised the said Chancellor, saying, that for this unjust decree, he, his Wife and Children were murthered, and by the worst kind of death by starving: And that now he having done unjustly, he must maintain it by speaking untruths, and that he must use his authority, Wit, Art, and E∣loquence, for the better maintenance therof, with other such like scandalous words: And the Attorney cited a president, 2 Jac. Where one Ford for an offence in the like manner against the late Chancellor was censured in this Court, that he should be perpetnally imprisoned, and pay the fine of 1000 l. and that he should ride upon a Horse with his face to the tail, from the Fleet to Westminster, with his fault written upon his head, and that he should ac∣knowledge his offence in all the Courts at Westminster, and that he should stand there a reasonable time upon the Pillory, and that one of his ears shall be cut off, and from thence shall be carried to Prison again, and in the like manner should go to Cheapside, and should have his other ear cut off, &c. And because they conceived that the said Wrennum had wronged the said Lord Chancellor in the said suggestion, they all agreed in his censure according to the said President: See for such matter, 19. Ass. 5. 9 H. 8. Sir Rowland Heywards case, and 21 H. 8. Cardinall Wolseys case.

The same Term in the Kings Bench. Mingies Case.

AWrit of Annuity was brought by Mingy, which was granted, Pro Con∣silio impenso & impendendo, the Defendant pleaded in Bar that he car∣ried a Bill to the Plaintiff, to have him set his hand to it, and because he re∣fused * he detained the said Annuity: And per Curiam this is no plea, for he Page  136 is bound to give advice, but not to set his hand to every Bill, for this may be inconventent to him.

The same Term in the same Court.

THe Case was this: A Lessee for years was bound in a Bond to give up the possession of the Land demised to the Lessor, or his Assigns, at the end of the Term, the Lessor assigns over his Interest, and the Assignee re∣quires the Lessee to perform the Condition, who answers, that he knew not * whether he were the Assignee, and therupon refuseth: And the question was, whether he had broken the Condition, and it was adjudged that he had, for he hath taken upon him so to do, and it is not like a Condition annexed to an Estate, as Co. lib. 5. Mallories case, or Co. lib. 6. Greens case, where the Patron presented his Clark to a deprivation, yet the Ordinary ought to give the Patron notice of the deprivation; for it is a thing Spirituall, of which a Lay-man shall not be bound to take notice.

It was moved, that a man riding upon a Horse through the water was * drowned, and by the Coroners Inquest it was found that his death was cau∣sed, Per cursum aquae, and the Horse was not found a Deodand, and per Curiam they did well, for the water, and not the Horse was the cause of his death.

The same Terme in the same Court. Wooton versus Bye.

THe case was this: A man made a Lease for years, rendring Rent, and upon payment of the Rent the Lessor made an Acquittance, by a release of all Actions, Duties, and Demands, from the beginning of the World to * the day of the date: And whether the Rent to come were released by it, was the question: And it was moved by Crook at the Bar, that it was not, for a Covenant in future shall not be released by such words, yet a release of all Covenants will be good in such a case, as the Book is in Dyer 57. so Hoes case, Co. lib. 5. 70. b. such a release will not discharge a Bail before Iudgment. But it was answered and resolved by the Court, that such a Release will dis∣charge the Rent, to come for this word (Demand) is the most large and am∣ple word in a Release that may be, as Littleton saith, and in Co. lib. 8. Al∣thams case, and in Hoes case, Co. lib. 5. one was Bail for the Defendant, the words wherof are conditionable, Scil. Si contigerit predict. defendent. debit & damna illa prefat. Quer. minime solvere, &c. So that before Iudment it is al∣together incertain, and therfore cannot be released, but in the case at the Bar he hath Jus ad rem, though not in re, as Crook Iustice said.

The same Term in the same Court. Bret versus Cumberland.

IN a Writ of Covenant the case was thus: Queen Elizabeth by her Let∣ters Patents made a Lease of certain Mills, rendring Rent, in which Lease Page  137 were these words, to wit, That the said Lessee his Executors, Administrators, and Assigns, should from time to time repair the Mills, and so leave them at the end of the Term, the Lessee assigns over his Term, the Queen also grants over the Reversion, the first Lessee dies, and the Grantee of the Reversion brings a Writ of Covenant against his Executors; In which case there were two points. 1. Whether these words. And the said Lessee his Executors, Ad∣ministrators, and Assigns, shall from time to time, &c. make a Covenant, or * no. 2. Whether (as this case is) it will lye against the Executors of the Les∣see.

As to the first point it was agreed that it is a Covenant, for being by In∣denture it is the words of both parties, and it is more strong being in the case of the Queen.

Haughton laid, that 25 H. 8. Tit. Covenant. Covenant will lye against a Lessee after assignment, but Debt lyeth not for Rent after the Lessee hath accepted the Assignee for his Tenant, and therfore it seems that by the ex∣presse words of the Covenant that the Action lies.

Doderidge Iustice contra, for between the Queen and the Lessee there is privity of Contract, and also of Estate, so that the Queen her Heirs and Successors might have had an action against the Lessee or his Executors, up∣on the privity of Contract; and where the Lessee •ssigns over, the privity of Contract remains, but the privity of Estate is gone to the Assignee, and now when the Queen grants over the Reversion, the privity of Contract is utterly determined, wherby the Action of Covenant cannot be maintained against the first Lessee, or his Executors, who are more remote: to which Mountague chief Iustice agreed, see 2 H. 4. 6. 6. H. 4. 1. and Co. lib. 3. Wal∣kers case, and the Iudgments there cited, Et adjournator.

The same Term in the same Court. Bennet versus Westbeck.

THe Case was thus: Tenant for life, Remainder for life, Reversion in Fee, he in Remainder for life gives his Deed of Demise (with the assent of the first Tenant for life) upon the Land to a stranger in the absence of the Lessor, and said, that he surrendred to him in Reversion: And it was said, that this Surrender being without Deed was not good to him who was ab∣sent, and to confirm it, the case was put out of 27 H. 8. Where Mountague chief Iustice said, that if a Feoffment be made to four, and Livery is made to one in the absence of the other, but in name of all, if it be by Deed this shall enure to all, but if it be without Deed, then only to him to whom the Livery was made: So here this Surrender doth not enure to him in the Re∣version, being absent. *

But Non aliocatur, for the sole point now in question, was, whether he in Remainder for life can surrender without Deed, and as to it this Rule was taken; viz. That that which cannot commence without Deed, cannot be granted without Deed, as a Rent, Reversion, common Advowson, &c. as 19 H. 6. 33. 14 H 7. 3. 1, & 2. Ph. & Mar. 110. 22. Ass Pl. 16. But in this case this took effect by Livery and not by Deed, and therfore might be determi∣ned without Deed.

Mountague and Haughton agreed that it might be surrendred without Deed, because it had its beginning without Deed, but it could not be gran∣ted over without Deed.

Page  138 Doderidge Iustice said, that it could not be surrendred without Deed, but he said, that Tenant in possession may, or Tenant for life, and he in Re∣mainder together may surrender to him in the Reversion, but this shall in∣nure as two severall Surrenders, first of him in Remainder to the Tenant for life, and then by the Tenant for life to him in the Reversion.

Crook Iustice agreed with Doderidge, for the Estate of him in Possession is an Estoppell to the Surrender, so that it could not be surrendred without Deed.

The same Term in the same Court. Thurman versus Cooper.

IN an Ejectione firmae brought by John Thurman against William Cooper, upon the whole matter the case was thus: Lands were given to a man and woman (who afterwards inter-marry) and to their Heirs and Assigns, Ha∣bendum to them and to the Heirs of their two bodies engendered, the remain∣der to them and the Survivor of them, with warranty to them and their Heirs and Assigns for ever. And the question was what Estate this shall be? whether an Estate-tail or Fee-simple? or a Fee-tail with a simple Expe∣ctant? And it was said that this shall be an Estate-tail only, for the Haben∣dum qualifies the generall words precedent, and with this agrees Perkins 35. b. and Co. lib. 8. 154. b. Althams case: But it was answered and resolved by the whole Court, that this is a Fee-tail with a Fee-simple expectant; and they observed these Rules.

1. That every Deed shall be taken most strong against him that made it.

2. That every Deed shall be construed according to the intent of the ma∣ker, so that all the parts may be effectuall if they can stand together with the Rules of Law, 40 E. 3. 5, Percy saith, that it is a Fee-simple, 21 H. 6. 7. that it is an Estate-tail with a Fee-simple expectant, Dyer 160. and Plow. Paramore, and Yardleys case, the Law shall make an order of words where there is no order put by the parties; and the words after the Remainder li∣mited, are Tenendum de Capitalibus Dominis feodi, &c. and therfore it ought to be a Fee-simple, for if it were a Fee-tail, he should hold of the Donor, as it is in Co. lib. 6. Sir John Molins case, and other Books: And although the Warranty cannot inlarge an Estate, yet this expresses his intent to passe a Fee-simple, and the Law shall make a construction that the Fee-tail shall precede, upon which the Fee-simple shall be expectant, according to that which is before said, in Paramore and Yardleys case.

Doderidge, If the Habendum had been to a stranger, the Premisses had been but a Tail, as 7 H. 4. for otherwise the Habendum shall be void: But if Land be given to one and his Heirs (viz. In Tail) or if the said Donce dye without Issue of his body, this had been but an Estate-tail only, because it immediatly checks and confirms the Premisses, to which Haughton a∣greed, Et adjournator.

The same Term in the same Court. Powels Case.

POwel an Vtter-Barister of the Temple, and also Town-Clark of Pli∣moth, brought an Action upon the Case against for these * words; The Defendant supposing that the Plaintiff had wronged him in the Court of Plimoth, said, that he was a Puritan Knave, a precise Knave, a bri∣bing Knave, a corrupted Knave, and that he would make him answer for that which he had done in another place: And after Verdict for the Plaintiff, it was now moved in Arrest of Iudgment that the words were not actionable, because he doth not scandalize him in his Profession by which he acquires his Living.

And Mountague chief Iustice said, that this word Bribing doth not im∣port that he took a Bribe, and therfore this word and all the other words, but (corrupted Knave) are idle, but these words impeacheth him in his Office, for it hath reference to that, and therfore is actionable: And Iudgment was given accordingly.

The same Term in the same Court. Sir Baptist Hickes Case in the Star Chamber.

SIr Baptist Hickes having done divers Pions and Charitable Acts, to wit, had founded at Camden in Glocestershire, an Hospitall for twelve poor and impotent men and women, and had made in the same Town a new Bell tu∣nable to others, a new Pulpit, and adorned it with a Cushion and Cloath, and had bestowed cost on the Sessions House in Middlesex, &c. one Austin Garret a Copyholder of his Mannor of Camden, out of private malice had framed and writ a malicious and invective Letter to him, in which in an iro∣nicall and deriding manner, he said, that the said Sir Baptist had done these charitable works, as the proud Pharisee for vain-glory and oftentation, and to have popular applause, and further in appro•rtous manner taxed him with divers other unlawfull Acts: And it was resolved by the Court that for such private Letters an Action upon the case doth not lye at Common Law, for he cannot prove his case, to wit, the publishing of it, but because * it tends to the breach of the Peace it is punishable in this Court, and the ra∣ther in this case, because it tends to a publike wrong, for if it should be un∣punished, it would not only deter and discourage Sir Baptist from doing such good Acts, but other men also who are well disposed in such cases; and therfore (as the Arch-bishop observed) this was a wrong, 1. To Piety, in re∣spect of the cost bestowed on the Church. 2. To charity, in regard of the Hospi∣tall. 3. To Iustice in consideration of the Session House; and these things were the more commendable in Sir Baptist, because he did them in his life time: For as Mountague chief Iustice observed, they who do such acts by their Will, do shew that they have no will to do them, for they cannot keep their Goods any longer. And he only took a diversity where such a Letter concerns publike matter as they did, or private in which case it is not pu∣nishable.

But the Lord Coke said, that it was the opinion of the Iudges in the Lord Treasurers case, when he was Attorney, that such a private Letter was pu∣nishable Page  140 in this Court, and therupon he had instructions to exhibit an Infor∣mation, but the Lord Treasurer Jacens in extremis was content to pardon him; and so it was resolved between Wooton and Edwards: And Sir Francis Bacon Lord Chancellor said, that the reason why such a private Let∣ter shall be punished, is, because that it in a manner enforceth the party to whom the Letter is directed to publish it to his friends to have their advice, and for fear that the other party would publish it, so that this compulsary publication shall be deemed a publication in the Delinquent; and in this case the party was fined at 500 l.

The same Term in the same Court. Bernard versus Beale.

AN Action upon the case was brought for these words; viz. That the * Plaintiff had two Bastards 36. years ago, upon the report wherof he was in danger to have been divorced: And it was resolved that for Defama∣tion there was no remedy but in the Spirituall Court, if he had no temporall lesse therby, and therfore it is not sufficient to ground an Action to say, that he was in danger to be diverced, but th•t he was De facto, divorced, or that he w•s to have a presentment in marriage, as it is in Anne Devies case, Co. lib. 4.

The same Term in the same Court. Brabin and Tradums Case.

THe Case was, That the Church-wardens of D. had used time out of mind to dispose and order all the Seats of the Church, wherupon they disposed of a Seat to one, and the Ordinary granted the same Seat to another and his * Heirs, and excommunicated all others, who afterwards should sit in the Seat, and a Prohibition was prayed and granted, for this grant of a Seat to one and his Heirs is not good, for the Seat doth not belong to the person, but to the house, for otherwise when the person goes out of the Town to dwell in ano∣ther place, yet he shall retain the Seat, which is no reason, and also it is no reason to excommunicate all others that should sit there, for such great pu∣nishments should not be imposed upon such small Offenders, an Excommu∣nication being Traditio diabola.

In the same Term in the same Court. Fulcher versus Griffin.

THe Parson of D. covenanted with one of his Parishoners that he should * pay no Tithes, for which the Parishoner covenanted to pay to the Par∣son an annuall summ of money, and afterwards the Tithes not being paid, the Parson sued him in the Court Christian, and the other prayed a Prohibi∣tion: And it was agreed, that if no interest of Tithes passe but a bare Co∣venant, Page  141 then the party who is sued for the Tithes hath no remedy but a Writ of Covenant: And the better opinion of the Court in this case was, that this was a bare Covenant, and that no interest in the Tithes passe.

The custody of a Copyholder that was a Lunatick, was committed to * I. S. and for Trespasse done upon his Land, it was demanded of the Court in whose name J. S. should bring the action, and their opinion was, that it should be in the name of the Lunatick.

Trinity 16. Jac. In the Kings Bench. The Earl of Northumberlands Case.

THe Earl of Northumberland being seised of the Mannor of Thistleworth, in which he had a Leet to be holden twice a year, to wit, within a moneth after Easter, and a moneth after Michaelmas, and Henry Devell being a Free-holder of the said Mannor erected a new Dove-coat at Heston within the Precinct of the said Leet, which was presented at the Leet for a common Nusance, for which Devell was amerced 40 s. and was commanded to re∣move it upon pain of 10 l. for the which a Distresse was taken by Henry San∣ders and others, as Bailiffs to the said Earl, wherupon Devell brought a Re∣plevin, and they made Avowry and justified as Bayliffs, and prescribed that they used to make by-laws to redresse common Nusances, and also prescri∣bed in the Distresse. And the point in question was, whether the new e∣recting of a Dove-coat by a Free-holder were a common Nusance, & punish∣able * in the Leet: And; it was resolved by the whole Court upon great deliberation, viz. Mountague chief Iustice, Crook, Doderidge and Haugh∣ton Iustices, that it was not a common Nusance, either punishable or inqui∣rable in a Leet; and by Haughton a man hath Jus proprietatis & privilegii in the Doves. 1. Propriety in respect of the place, as 22 H. 6. 39. Trespasse lies for taking a Goshawk in respect of the place, as 3 H. 6. 55. For Hares, and Spencers case in Dyer, and so of other things which are Ferae naturae. And if a Deer goes out of a Park, albeit it be in the Kings case, yet it is lawfull for the Owner of the Sail to take it, if it be in the place where the Deer bath chase and re-chase: And by the Register and Fitzherbert it appears that Trespasse lies Quaere columbare fregit, & Columbas cepit: But 16 E. 4. 7. Trespasse doth not lye for killing of Doves, but there is a Quaere of an acti∣on upon the case, and because the Doves do no Trespasse, neither is there any remedy for the killing of them, therfore they are no common Nusance; for by Brook 34 H. 6. Brooks action upon the case, the common custom is the common Law, and there is no authority against it, but Co. lib. 5. 104. Boulstons case, which is only on the by•, and is not agreeing with the reason of the principall, and this confirms my opinion, Quod fiat concessum per totam Curiam, for there the principall case was that a man made Cony-bur∣rows, and the Conies strayed into his Neighbors grounds, and adjudged that it was not actionable; but it was lawfull for any man to kill them upon his own ground; so here, &c.

Doderidge, It may be a hurt to the Common-wealth, but not a publike Nusance, for that ought to be immediate, or generall.

1. Immediate it cannot be, for the erecting of a Dove-coat cannot in it self be a Nusance.

2. It is not generall but particular to the Neighbouring Inhabitants: And it hath been allowed of all sides, that a man may have a Dove-coat by Page  142 prescription, which could not be if it were a Nusance; to which Mounta∣gue agreed: And it is lawfull for any man to kill the Doves upon his own Land, but they must be ware that they do it not against any Statute, for Doves are preserved by many Statutes, as by the Statute of Wales, made in the time of E. 1. and the Statute of 18 E. 2. gives directions that the killing of Doves shall be presented at the Leet: And the Statute of 18 Eliz. ordains that Doves shall not be shot.

3. However the Replevin lies for a fault in the pleading, for the harm and nusance which the Doves do is laid to be Per totam patriam, wheras it ought to be within the Precinct of the Leet; to which Mountague agreed.

Crook, A man hath property in the Doves only by the Possession, for be∣ing at large, they are Nullius in bonis, and when they are in his possession, to wit, in the Dove-coat, they do no harm to any: and it was lately ruled in this C•u•t, that a man cannot lay Loggs in the Kings high way, although there be sufficient room for Passengers, because it is a wrong to have the high way strained; so here a Prescription should not be good if it were a Nusance, for it is all one to erect a great Dove-coat, or a little one, for a Nusance Non recipit magis aut minus: And Bolstons case rather confirms then encreaseth my doubt, and so I agree with my Brethren.

Mountague, A man hath Jus duplex in Doves. 1. Jus proprietatis. 2. Jus privilegii, for they fly to and again, and (as Bracton saith) have Animum revertendi, and so have not other things which are Ferox naturae: And it is a good Argument that this matter was never questioned, for it is without question. Littleton saith in the case of Disparagement, 21 E. 3. 4. They of the Leet ought to enquire of such things as have been enquirable, yet the ex∣cesse therof is restrainable by the Iustices of Assise.

A Precipe lies of a Dove-coat, as appears by the Verse, Mich. Col. and Dower and Partition lies therof, which shews it to be lawfull, and by the * Book of 17 E. 4. 7. It seems that it is not lawfull to take Doves: And as a man cannot prescribe to do a Nusance, so the King cannot licence one to do it: And therfore I agree that Iudgment shall be given for the Dove-coat.

The same Term in the same Court. Richardson versus Cabell.

RIchardson, being a Parson, libelled against Cabell in the Spirituall Court for Tithes, because the said Cabell being an Inn-keeper, took all the benefit of his Pasture by putting in Guest Horses into his Pasture, wherupon Cabell prayed a Prohibition, and it was not granted, for it is Tithable in this case: But if Cabell had taken a crop of Hay, and after∣wards he had put Guest Horses into the Pasture, in that case it had not been * Tithable, for he had his Tithe before, and therby it should seem that some Crop is not Tithable.

The same Term in the same Court. Southern versus How.

RAlph Southern Plaintiff in an Action upon the Case against Robert How, shews for his case, That the Defendant being a Goldsmith in Lon∣don, and having Counterfeit Iewels, knowing them to be counterfeit, sent William Saldock his Servant with them to the Plaintiff, being a Merchant in Barbary, to use him for the sale of the Iewels to the King of Barbary, and the Plaintiff therupon sold them to the King of Barbary for 800 l. and Sal∣dock having received the said money, went from thence; And the Iewels being afterwards discovered to be counterfeit, the Plaintiff was taken and enforced by Imprisonment to make restitution of the money to the said King. But it was said by the Court, that the Verdict did not prove the case, for it was found that the Defendant did not command his Servant to make use of the Plaintiff, nor to sell to the King, but generally to any: And that the Iewels were of some worth, Scil. 80 l. And it was agreed at the Bar, by Da∣venport, that in this case the action well lies, for the Master shall answer for * his Servant, Dyer 151. the Lord Norths case, 5 E. 4. 1. the Sheriff shall be amerced for the ill return of his Bailiff: And if I command my Servant to kill one, who commands another, in this case the Master shall not be punish∣ed, but in Trespasse all are principals, and 2 H. 4. 18. If a Servant burns his Masters house, wherby another house is burnt, there the Master shall an∣swer for it, for 14 H. 8. 31. b. an Action upon the case lies where there is no other action provided for such a thing, so that an action well lies in this case, and see Doctor and Student 137. in what case the Master shall answer for his Servant.

Coventry Solicitor, to the contrary, for it was lawful for the Plaintiff to command his Servant to sell them, for it was found by the Verdict that the Iewels were of some worth and value, and he did not command him to sell them for more then they were worth, and 9 H. 6. 53. b. If the Master send his Servant into a Fair, or Market, to Merchandize for him, the Master shall not be punished for his fault. And in this case the command was not to deal with the Plaintiff, or to sell to any one in particular, and for it see 9 H. 6. aforesaid: And if the Servant will exceed the lawfull command of his Master, the Master shall not be punished therfore, but if the command be unlawfull it is otherwise, 11 E. 4. 6. A man sells cloath of such a length, which proves to be short of the length, an action lies not without a Warran∣ty, so Fitz. N. B. 64. c. For Wine if it be warranted to be good, an action lies if it be corrupt. If my Beasts go into another mans Soil, an action lies a∣gainst me, but if my Servant drive my Beast into another mans Soil, I shall not be punished, for he doth this of his own wrong, without any such warrant from me, 13 H. 7. b. And if when a man sell a thing for more then it is worth, an action would lye for it, we should never have an end of actions. And the action doth not lye for another reason, because it doth not appear that the King of Barbary did lawfully imprison the Plaintiff, 26 H. 8. 3. If a man makes a Lease, and covenants that he shall not be disturbed, if a stranger disturb him, an action lieth not against the Covenantor, so here, &c. for it seems it was Ex regali potestate, and not in a lawfull manner, and so he concluded that the action will not lye, and so it was resolved by the whole Court.

Mountague chief Iustice, the Plaintiff is no party who shall have the Page  144 action but the King of Barbary. 2. The Verdictis contrary to the Declara∣tion, and Iewels are in value according to the estimation, and therfore 38 Eliz. between Simson and Sanders in the Star Chamber, it was resolved that a man shall not be punished for Perjury upon the valuation of Iewels.

Doderidge said, that 22 Eliz. an action upon the case was brought in the Common Pleas by a Clothier, that wheras he had gained great reputation for his making of his Cloath, by reason wherof he had great utterance to his great benefit, and profit, and that he used to set his mark to his Cloath, wherby it should be known to be his Cloath: And another Clothier percei∣ving it, used the same mark to his ill-made Cloath on purpose to deceive him, and it was resolved that the Action did well lye.

The same Term in the same Court.

VPon an Indictment of Barretry before the Iustices of Wales, a Certio∣rari was moved for to remove it into this Court: And it was said at the Bar that it had not been seen from the time of E. I. that such a Writ * had been granted in the like case, and therfore he collected that it ought not to be granted: But it was resolved by the Court, that a Certiorari should be granted, in regard it is in the Kings case; and by Haughton Iustice, not∣withstanding the Statute Quod communia placita non sequantur Curiam meam yet it is plain, that the King may sue in what Court he will: And albeit this Writ in such a case ought not to be granted in case of a common person, yet that is no reason but that it may be granted in the case of the King.

The same Term in the same Court. Sir Henry Glemhams Case.

IN a Quo warranto against Sir Henry Glemham for using certain Liber∣ties, to which Sir Henry pleaded in Bar, and the Kings Attorney reply∣ed, and so this matter rested three years, and then the Kings Attorney put in a new Replication, and joyned Issue upon other points: And it was mo∣ved for the Defendant that he might put in a new Bar, in regard the Repli∣cation * is altered, and nothing was entred, but all remained in paper: And it was agreed by the Court that the King shall not be concluded but that he might put in his Replication at any time; And that the King cannot make a double Plea, for the other party shall answer first to one, and then to the o∣ther: And the Court would not allow Sir Henry to make a new Bar in this case, without the assent of the Attorney, who would by no means agree to it: And in case of a common person, this shall not be allowed without the assent of parties.

The same Term in the same Court.

IN an Action of Trover and Conversion between one Nicholas and William Ward, it was agreed that tithe Lamb and Wooll was inclu∣ded within small Tithes: And Mountague said, that a Vicaridge endowed * might be appropriated but not to the parson, to which Haughton and Dode∣ridge agreed, 31 H. 6. Fitz. tit. Indicavit, is that such a Vicaridge may be dis∣solved: Page  145 An appropriation may be by the King sole where he is Patron, but there is no Book that it might be by the Patron sole. Grindons case in Plow∣den, and 17 E. 3. 39. An Appropriation cannot be without the Kings li∣cence.

The same Term in the same Court. Blaxton versus Heath.

IN an Action of Debt by Blaxton against Heath, the case was this. A man possessed of a term for twenty years, in right of his Wife, made a Lease for ten years, rendring rent to him, his Executors, and Assigns, and died. And the question was whether the Wife shall have the rent after his death, or his Executors, and it was argued, that the wife should n•t have it, because she was in by a Title Paramount; as if there be two Joynt-tenants for life, the one makes a Lease for years rendring rent, and dies, the other shall not have the Rent, Dyer 167. and so of Joynt-tenants in fee, Co. lib. 1. 96. and Perkins accordingly: To which Mountague chief Iustice agreed, for he said, it was but an extract of ten out of twenty, the remainder continuing as before: And Redditus is Reventus, a turning again, but it is otherwise of a Condi∣tion, which is a new Creature, of which the wife shall take no advantage.

Crook Iustice, This is a speciall reservation, and therfore the Executor shall have it, and not the wife, for she comes in Paramount, as in the case of Ioyn-tenants: Haughton agreed therunto, and said, that the Rent shall be incident to him who hath the Reversion under the Lessor, who is the Exe∣cutor: And Mountague demanded of Hobert chief Iustice of the Common Pleas, his opinion in this case, who agreed that the wife shall not have it.

The same Term in the same Court. Dennis versus Sir Arthur Mannaring, and others.

IN the great case between Gabriel Dennis Plaintiff, in Trespasse against Sir Arthur Mannaring and Brimblecomb, and others, the Verdict was found for the Defendants: And now it was moved in Arrest of Iudgment for the Plaintiff, because no Bail was entred for Brimblecomb one of the De∣fendants, * for every Defendant is supposed in Custodia Marescalli, and in this case the Venire facias is awarded to try the Issue between the Plaintiff and Defendants, where one of the Defendants is no party in Court: And Serjeant More put the case of the Lord Chandoys and Sculler, and other De∣fendants, where the Iudgment in such a case was resolved to be erro∣neous.

Mountague, we ought Discernere per legem quid sit justum, and here Brim∣blecomb being no party in Court, no Verdict could be given.

Doderidge, I have seen in this Court, where upon a Writ of Error brought in such a case, we have compelled him to put in his Bail, because he Page  146 should not take advantage of his own wrong and folly: But because that here no fraud appeared to be in the Plaintiff, he shall not be bound to stand to the Verdict: Haughton agreed, but Crook seemed to the contrary: But it was agreed, that if Brimblecomb had appeared at the Suit of any other, the same Term, it had been sufficient: And these Books were cited to be in the point, 32 H. 6. 2. 8 E. 4. 5. 21 H. 6. 10.

The same Term in the same Court. Hide versus Whistler.

WIlliam Hide made a Lease for years of certain Lands to Whistler, ex∣cepting * to the Lessor all his Wood and under-wood, Coppices and Hedgerows; and in a Replevin the question was, whether the Soil shall passe ther by▪ for the Lessee put his Beasts into a Coppice, and the Lessor distrained them, wherupon, &c. And the words of the exception were further, standing, growing, and being in and upon the Premisses: And the Lessee covenanted to make Fences, but if the Lessor made new Coppices, that the Lessee should net make Fences about them. And it was said, that a Coppice signifies a parcell of Land fenced for the safegard of young Trees. And it was said for * the Plaintiff, that Premisses are Pre dimissa, and by these words, growing, and being in the Premisses, it shall be intended that the Soil did not passe, for it is pre-demised: But it was resolved that the Soil it self was excepted by the exception of the Wood and Coppice, 14 H. 8. 1. The Bishop of Londons case, Co. lib. 5. Ives case, and lib. 11. Lyfords case: And by the reserving of a Coppice the Soil it self is reserved; for by Mountague, that which is re∣served is not demised, and so the Distresse well taken. Crook agreed, and he said the difference was good between Wood and Trees, for by the excep∣ting of Wood, the Soil it self is excepted, otherwise of Trees: Haughton agreed that the Soil it self is excepted in this case, and so it was adjudged.

The same Term in the same Court. Talbot versus Sir Walter Lacen.

IN a Writ of Covenant brought by Margaret Talbot against Sir Walter Lacen. upon a Lease made by the Plaintiff to the Defendant, of a Park, * &c. for five years, if she should live so long, in which the Lessee covenants for him, his Executors and Assigns, to keep the Premisses in good Reparations, and so to leave them at the end of the Term, and also to deliver to the Plain∣tiff (upon notice given) four Bucks, and four Does in season, during the life of the Plaintiff, in every of the said years: And after the expiration of the aforesaid term of five years she brought a Writ of Covenant, and assign∣ed the breach, because that in the end of the term he committed Wast, and because that after the end of the term the Defendant refused to deliver the Deer; And albeit the words of the delivery of the Deer are, during the life of the Plaintiff, yet they are also every of the aforesaid years, and therforeit was resolved that she shall not have them during her life in this case.

Page  147 And for the other point it was objected, that in Fine termini, was incertain, for it may extend after the term, but Ad finem termini had been sufficient, Old book of Entries, 169. for when he covenants that at the end of the term, he would leave the Premisses in reparations, and Ad finem termini, he did wast, this ought of necessity to be intended a breach of the Covenant, and therfore it was adjudged that the action of Covenant well lies.

Mich 16. Jac. In the Kings Bench. Havergall and Hares Case.

IN this Case (which see before, fol. 1. b.) four points were observed.

1. Whether Fisher the Assignee of the Rent were such a person who * shall take benefit of the entry?

2. When 10 l. is only in arrear, whether the Rent of 20 l. shall be said in arrear?

3. Whether these advantages which were first granted with the Rent may be granted over?

4. When the Vse shall rise, whether upon the first Indenture of the grant of the Rent, or afterwards? For the case was, that the Grantee of the Rent of 20 l. covenanted by the same Indenture, that if the said rent of 20 l. were in arrear for the space of twenty daies after any day of payment, that the Grantee shall distrain, and if there be not sufficient distresse upon the Land, or if there be a Rescous, Replevin, or Pound-breach, that then it shall be lawfull for the Grantee and his Heirs to enter into the same Land, and to retain it untill he be satisfied: And the said Rent was granted, 9 Jac. it was arrear, 11 Jac. the Fine for the better assurance of the Rent was levi∣ed 12 Jac. and 13 Jac. the Distresse was taken.

There were four Causes which give an entry, and upon the Distresse and Replevin brought the Assignee enters. As to the three first points, it was resolved by the whole Court,

1. That Fisher was such an Assignee who shall take benefit of the Entry.

2. When 10 l. is only arrear, the Rent of 20 l. shall be said arrear, wher∣upon there shall be a Title of Entry.

3. That these advantages granted with the Rent may be granted over.

And as to the fourth point, it was holden by Mountague and Crook, that the Vse riseth upon the first Indenture, and not upon the entry after the Reple∣vin brought, although the words are, that then it shall be lawfull for the Grantee and his Heirs to enter, wherby the use is only awaked, as it is in the principall point in Shelleys case, and although a Fine is afterwards le∣vied, yet the Vse shall be directed by the originall Indenture, and therfore 6 Rich. 2. A Feoffment is made to two and their Heirs, and afterwards a Fine is levied upon it for further assurance, to the use of them and the Heirs of one of them, yet it shall go to the use of both, for it shall be respected accor∣ding to the original agreement, where there are divers assurances for the per∣fecting of one and the same thing, 16 E. 3. tit. Age. A Daughter had a Seig∣niory by descent, a Tenancy Escheats, a Son is born, he shall have the Land, see Sharoes case in 4 Mar. Dyer, and in Chadleighs case all looks to the originall agreement, and therfore variance of time shall not hinder the originall agreement, as 33. Ass. the Servant in•ends to kill his Master, and afterwards the Master puts him out of his Service, and then he kills him, this shall be petty Treason in the Servant, 28 H. 6. Two are bound in a Page  148 Bond at severall times, and yet he shall declare against both, as upon the first delivery, 11 H. 7. it is adjudged, that if a Deed be delivered by an In∣fant, and afterwards it is again delivered when he comes of full age: And see Mallories case, Finches case, and Borastons case, Nunc & tunc & quando, are a demonstration of the time, and not of the matter, and so they concluded that the Vse shall rise upon the first Indenture, and not upon the Fine or Replevin brought; but Doderidge and Haughton Iustices contra.

Trin. 17. Jac. In the Kings Bench. Silvesters Case.

JOhn Silvester promised to John B. that if he would marry his Daughter, that he would give with her a Childs part, and that at the time of his death he would give to her as much as to any of his Children, excepting his eldest Son, and afterwards he made his Executors and died: I. B. brought an action upon the case against the Executors upon this Promise, and shewed that the Executor had not given him a Childs part, and that such a younger Son of the Testators had a 100 l. given him: And it was resolved by the Court that the promise of a Childs part is altogether incertain, but being so much as any of his Children had, and then shewing that the younger Son had a 100 l. this was certain enough, and therupon Iudgment was given for the Plaintiff.

The same Term in the same Court. Godfrey and Owen.

COrnelius Godfrey was Plaintiff in an action upon the case for * words against Owen Defendant, and the words were these, to wit, He is a very Varlet, and seeks to suppresse his Bro•hers Will, he makes shew of Religion, but he is a very Hypocrite: And the words were sp•ken of a Mer∣chant, to one who gave him much credite in his Trade.

Mountague chief Iustice said, that the words which are actionable in such a case ought to touch the Plaintiff in his Profession, which these do not do, Et relata ad personam intelligi debent secundum conditionem personae, for in the suppressing of his Brothers Will the case might be such that he might well do it, for perhaps there may be an after Will made; And for calling him Hypocrite lies not in the conusance of the Common Law, for GOD only can judge of the heart of man, and therfore these words do not touch the Plaintiff as he is a Merchant.

Doderidge Iustice, Words ought to tend some way to the ruine of the party, or otherwise they are not actionable; and Iudgment was given, Quod quere nil capiat per billam.

Mich. 17. Jac. In the Star Chamber. Sis John Bingleys Case.

IN Sir John Bingleys case in the Star Chamber, it was resolved by the two chief Iustices, Mountague and Hobart, and agreed by the Lord Veru∣lam Lord Chancellor, and Sir Edward Coke, that if an Information be ex∣hibited there which begins with divers particular misdemeanours, and con∣clude in the generall that, 1. The matter included in the generall charge ought to be Ejusdem generis. 2. They ought to exceed the particulars ex∣pressed in number. 3. They ought not to be greater or more capitall; wher∣upon Mountague cited the Statute which speaks of Deans and other Spiri∣tuall persons, upon which it hath been resolved that Bishops are not within it, for they are of a higher degree, and the principall reason of these rules was, because that a man cannot possibly make a defence, because he knews not what will be objected against him; and upon this Sir John Bingley was discharged at this time for the most transcendent Offence that was objected against him, to wit, concerning Captain Baugh, and other Pirates to whom the King of his grace and bounty had given 200 l. to make them Loyall Sub∣jects: But Sir John Bingley, Colore officii, had defrauded them of almost * all of it, for the want wherof some of them died miserably, and the rest be∣came Pirates again. But Sir John Bingley made many protestations of his innocence in this m•tter.

And it was holden also that one might be an Officer of his own wrong, as their might be an Executor of his own wrong: And this was Sir John Bingleys case for somthing in the information, for he committed Extortion, Colore officii.

The same Term in the Star Chamber.

THe Attorney-generall put in an Information against divers Dutch Merchants, for buying and transporting of many great summs of Gold and Silver Bullion.

And it was said by the Court that divers Statutes had been made for redresse of this mischief, as the Statute of 5 R. 2. the Offenders wherof ought to forfeit all they may: and by another Statute in 17 E. 4. this Of∣fence was made Felony to continue for seven years: But the Court would not now punish them upon any Statute, for it was an offence at common * Law, and therfore punishable in this Court.

And Sir Edward Coke said, that if any be to be punisht upon a penal Sta∣tute, it ought to be within two or three years at least after the offence com∣mitted, for the Informer hath but a year to sue, and the King two years for the most part.

The Statutes of 37 E. 3. and 5 E. 6. Prohibite the buying of Coin, and that it is so at the Common Law, see 21 E. 3. 60. and Plow. 215. and not on∣ly he that buyes but he that sels also offends in it, for it is a Prerogative only belonging to the King, and it is his Coin, and none can put a value upon it but himself, which is a Flower of his Crown.

Hobart chief Iustice of the Common Pleas, as one shall be punished for in∣grossing any Commodity, a Fortiori, one shall be punished for ingrossing and buying of a great quantity of money, all other Commodities being thereby Page  150 ingrossed, for money is the Mistresse of commerce: Pecunia est rerum omnium vendendarum mensura, Bracton 117. 18 E. 3. Hollinghead 109. 50 E. 3. Rot. Pat. Memb. 7. And for transportation, 17 E. 3. & 19 E. 3. Rot. Pat. 24. De monetis non transportandis, 19 R. 2. Rot. Pat. The Dutches of obtained licence to melt Coin to make Plate. And divers of the Defendants were within the Kings generall pardon, but in as much as they pleaded it in their Rejoynder, and not in their answer (as it ought to be) the Court o∣ver-ruled their Plea, so that they could have no advantage therby. But in as much as they were strangers, and not co•usant of our Laws, and relyed only upon their Counsell, the Court had consideration therof in their censure.

Hillary, 17 Jac. In the Kings Bench. Serle versus Mander.

SErle brought an action upon the case against Mahder for these words, to * wit, I arrest you upon Felony, and after Verdict for the Plaintiff, it was moved in Arrest of Iudgment by Richardson that the words were not actiona∣ble, for he doth not say, that the Plaintiff had committed Felony; But it was rescived by the Court, and so adjudged that the action lieth.

The same Term in the same Court.

A Iudgment was obtained against one of the Servants of the Lord Hay, * Viscount Doncaster, when he was Ambassador in Bohemia, and attend∣ing upon him there: And this matter being disclosed to the Court by the Counsell of the Defendant, they would not suffer the Plaintiff to have execu∣tion upon the said Iudgment, but ordered the Plaintiff to declare De novo, to which the Defendant should presently answer.

Memorand. It was said to be against the course of the Court, to have an * Imparlance before the Declaration entred.

The same Term in the same Court. The King against Briggs.

A Quo warranto was brought by the King against Briggs, for exercising * of certain Priviledges, who justified by virtue of a Forest granted to him: And by Bridgeman, this is the first Quo warranto which he knew that had been brought against any Subject for a Forest, for a Subject cannot have a Forest, but he may have a Chase, which peradventure may passe un∣der the name of a Forest. And there are divers incidents to a Forest which a Subject cannot use nor have; there ought to be a Iustice of a Fo∣rest which a Subject cannot have, and such a Iustice ought to be a man of great Dignity. 2. There ought to be Verderors who are Iudges also, and by 34 E. 1. Ordinatio Forrestae ought to be by Wait, but a Subject cannot a∣ward a Writ. Also there are three Courts incident to a Forest.

1. A Court of Attachments which may be without Verderors.

2. The Swanimate Court.

Page  151 3. The Iustice seat, and this appeareth in 1. E. 3. cap. 8. 21 E. 4. cap. 8: But by the Statute of 27 H. 8. cap. 7. There are some other incidents to a Forest. 2. Admits that a Subject may have a Forest, yet it fails in this case, because he hath shown the exemplification and not the Letters Patents, and see Co. lib. 5. Pains case, that neither an exemplification, or constat, are pleadable at Common Law, and Co. lib. 10. Dr. Leyfeilds case.

The same Term in the same Court. Sir William Webb versus Paternoster.

THe case was this; Sir William Plummer licensed Sir William Webb to lay his Hay upon the Land of the said Sir William Plummer untill he could conveniently sell it, and then Sir William Plummer did make a Lease of the Land to Paternoster, who put in his Cattell and they eat up the Hay: And it was two years between the license and the putting in of the Cattell, and yet Sir William Webb brought an action of Trespasse against Paternester for this.

Mountague chief Iustice: 1. This is an Interest which chargeth the Land into whosoever hands it comes, and Webb shall have a reasonable and convenient time to sell his Hay. 2. The Lessee ought to give notice to * Sir William Webb of the Lease before he ought to put in his Cattell; to which Haughton Iustice agreed in both points: But Doderidge Iustice said, that Sir William Webb had no certain time by this license, yet he concei∣ved that he ought to have notice: But it was resolved that the Plaintiff had * a convenient time (to wit, two years) for the removing of his Hay, and therfore Iudgment was given against him. But admit that there had not been a convenient time, yet the Court was of opinion that the Plaintiff ought to have inclosed the Land at his perill, for the preservation of his Hay: And it was agreed that a license is countermandable, although it be concer∣ning * profit or pleasure, unlesse there be a certain time in the license, as if I license one to dig Clay in my Land, this is evocable, and may be counter∣manded although it be in point of profit, which is a stronger case then a license of pleasure, see 13 H. 7. The Dutches of Suffolks case for a license.

The same Term in the same Court.

SIbill Westerman brought an action upon the case against Eversall, and had * Iudgment: and in the entry of the Iudgment she was named Isabell, 1 Ass. and 3. Ass. A Fine was levied by Sibill, when her name was Isabell, and it was not good, for it doth not appear to be the same party; so in the case at the Bar: And for this the Iudgment was reversed.

The same Term in the same Court.

JEne as Executor of brought an action upon the case against Che∣ster, * because the Defendant made request to the Testator of the Plaintiff to buy for him certain silk Stuffs for Apparrel, and to make him a Cloak; the Defendant pleaded that he was within age, and George Crook said, that the Defendant should not be charged, because it is not shewn that the Appar∣rell was for the Infant himself, but he was over-ruled in this, for it is suffi∣ciently Page  152 expressed to be for him. And it was agreed by the Court, that it ought to be shewn that it was Pro necessario vestitu, and it ought to be suitable to his calling, and (as Doderidge said) that there was a case adjudged in this Court between Stone & Withipole, that where Withipole had taken of Stone certain Stuffs for Apparrel, being within age, and afterwards he promised payment if he would forbeare him some time, and the Assumpsit adjudged not good, because he was not liable for the Debt at first for the reason afore∣said.

Trin. 17. Jac. In the Common Bench. Gilbert de Hoptons Case.

AN action upon the case was brought for those words, viz. Thou art a * Theef and hast stoln my Furze: And after Verdict for the Plaintiff, it was moved in Arrest of Iudgment, th•t these words were not actiona∣ble: But it w•s said on the other side, that to say, thou art a Theef, is actio∣nable, and the subsequent words are in the Copulative, and enure as a confir∣mation of the precedent words: But if it had been for, Thou hast stoln my Furze, this had been •n explanation of the precedent words, and therfore in that case the action would not have been: And it was answered and resolved by the Court that the word (and) in some cases shall be taken as the word (for) and so it shall be in this case, and therfore adjudged that the action lies.

Mich. 22. Jac. In the Star Chamber.

TWo men came Ore tenus into the Star Chamber, for stealing of the Kings Deer, and were fined a 100 l. a peece, and three years Imprison∣ment, unlesse it would please he King to release them sooner, and before * they should be released of their Imprisonment to be bound to their good be∣haviour: And it was observed by the Attorney-generall that the offence was the greater, in regard that the King had but one darling pleasure, and yet they would offend him in that: And it was said by some of the Court that it was a great folly and madnesse in the Defendants to hazard them∣selves in such a manner for a thing of so small value as a Deer was. The Lord President said, that Mr. Attorney was the best Keeper the King had of his Parks, in regard he brings the Offenders into this Court to be punished: The Lord Keeper said, that the Defendants in such a case being brought Ore tenus •re not allowed to speak by their Counsell, and yet these men have had their Counsell, but it was Peters Counsellors, meaning, their sorrow and contrition at the Bar, which much moved him, so that if his vete might pre∣vail he would set but 20 l. fine upon them.

In the same Term in the same Court.

THe Lord Morley and Sir Richard Mollineax being beyond Sea, their Sollicitor in their names exhibited a scandalous Bill in the Star Cham∣ber against the Bishop of Chichister, and after their return this continued so for three years, without any disclaiming therof by them, and now the mat∣ter Page  153 being questioned, they said, that it was not done with their privity: But because they had not disclaimed the Fact before, they were fined a 100 l. to the King, and a 100 l. to the Bishop for Damages, and the Bill was to be taken of the File.

The same Term in the same Court. Lewes Plaintiff versus Jeoffreys, and others Defendants.

THe Plaintiffs Brother had been a Suitor to a woman, which matter pro∣ceeded to a Contract, and afterwards the Defendant Jeoffreys hapned to be a Suitor to her also, wherupon (being Rivalls) they fell out, and the Plaintiffs Brother called the Defendant Jackanapes, which was taken very ill by the Defendant (being a Iustice of Peace in the County of Worcester, and the other being but a mean man in respect of him) so that he told him that if he would meet him on Horse-back he would fight with him: after∣wards one of the Sons of the Defendant went to the said Brother (being upon his own Land, and gave him a mortall wound, wherupon a friend on the behalf of the party wounded, came to the Defendant (being a Iustice of Peace) and brought him a peece of his Skull, to the end that his Son should be forth coming at the next Assises, declaring to him the danger of death the man was in; wherupon the Defendant took a Recognisance of 10 l. of his Son and of his sureties of 5 l. a peece to answer this at the next Assise: And in the mean time the party died of the said wound, and the Son did not ap∣pear at the Assises, and the Iudges of Assise fined the Defendant 100 l. for taking such slender security for the appearance of his Son, which was paid, and yet notwithstanding the Defendant was fined 200 l. more for this offence and also 200 l. for his misdemeanor in his challenge, albeit the Defendant * was of the age of 63▪ years, and so it seems that he intended to fight with him. But he being a Iustice of Peace (who is Conservator pacis) he did against his oath to do any thing which may tend to the breach of the Peace.

And for the other matter it was said by the Court, that the Defendant be∣ing Father to the offendor, it had been better for him to have referred this matter to another Iustice of Peace, or at least to have had the assistance of an∣other: And the party being in such great danger of death, his son was not bailable.

Hillary 1. Car. In the Kings Bench. Bowyer versus Rivet.

THe case was thus; Sir William Bowyer 12. Jac. recovered against Sir Thomas Rivet in an Action of debt, Sir William made his wife his Ex∣ceutrix and died, the wife made Bowyer her Executor and died; then Sir Thomas Rivet died, Bowyer brought a Scire facias to have execution upon the Iugment against Sir Thomas Rivet the younger, as Heir apparant to the Land to him descended from Sir Thomas Rivet, who pleaded Riens per descent from Sir Thomas Rivet, and it was found that he had two acres and a half of Land by discent; and it was prayed by Goldsmith, that Iudg∣ment might be given against Sir Thomas Rivet generally, for he said, that this false Plea shall charge him and his own Lands, and cited Plowden Page  150 440. where in debt against an Heir, upon his false Plea, his own Lands shall become liable to the debt, and Co. lib. 3. 11. b. Sir William Herberts case, where the case was upon a Scire facias against the Heir, as it is in this case.

But on the other part it was argued by Richardson the Kings Serjeant, Banks, and all the Iustices, that Execution shall be awarded in no other manner against the Heir then it should be against his Ancestor, or other Pur∣chasor, to wit, of a Moyety of that which he had by discent, for as much as in this case he cannot be to this purpose charged as Heir, but he ought to be charged as Ter-tenant and as a Purchasor, and a Purchasor shall never hurt himself but his false Plea.

And Banks argued, that the Heir in this case is charged as a Purchasor, and the false Plea of a Purchasor shall never charge himself, 33 E. 3. Fitz. Exe∣cution, 162. and 6 E 3. 15. and that in this case he is charged as Ter-tenant appears by three reasons.

1. Debt will not lye against an Heir, but where he is bound as Heir, but in this case Execution is to be sued against him as another Ter-tenant, Dy∣er 271. 11 E. 3. 15. and in 27 H. 6. Execution 135. and Co. lib. 3. 12. b. That in Iudgment upon Debt or Recognisance the Heir is charged and Executi∣on shall be sued against him as Ter-tenant.

2. There is not any lien as Heir, for the Iudgment doth not mention the Heir, and therfore he cannot be charged unlesse he be expresly bound, and in the Record of the Recovery, it doth not appear that the first lien shall bind the Heir, for he declares that he bound himself, and not that he bound himself and his Heirs.

3. If the Heir were bound in the Obligation so that he were once bound as Heir, yet the Iudgment determines the specialty, so that now he is not bound, and in the Iudgment the Heir is not mentioned, as in 10 H. 4. 21. 24. If an Abbot contract to the use of the house without consent of the Co∣vent, this shall bind if he dies, but if he takes an Obligation of the Abbot and then he dies, this shall not bind the house, for the Contract is determined by the Obligation, and this is the reason that in the time of E. 3. in a recovery upon debt the Obligation was cancelled.

4. Here he cannot be charged as Heir, for it appeareth by the Record * that his Father is living, for it is brought against him as Heir apparant, which he cannot be but during the life of his Father.

And as to the objection, that in this case he shall have his age, and therfore shall be charged as Heir, Non sequitur, for if execution be sued against the Heir of a Purchasor, he shall have his age, and yet he is not Heir, neither can charged as Heir to the Conusor: But because it is a rule in Law, that the Heir which hath by discent shall not answer where his Inheritance may be charged during his Nonage.

Whitlock to the same intent, because the Heir is not charged here as Heir but as Ter-tenant, wherby his false Plea shall not hurt him, with which Jones also agreed, and said, that he here considered three things.

1. That the lien of the Ancestor binds the Heir.

2. How the Heir shall behave himself in pleading.

3. Our point in question. For the first there are two things requisite to bind one as Heir. 1. A lien expresse, for if one bind himself and not his Heir, this shall not bind his Heir in any case. 2. A discent of Inheritance, for without this he shall not be bound by the act of his Ancestor, and he is bound no longer then Assets discend, for he alien before the Writ purchased the lien is gone. 2. He ought to behave himself truly and plead truly, and confesse the assets discended to him, when debt is brought against him as heir, otherwise his own Lands shall be charged with the debt, as it is in Pepys case in Plow. Com. But where it is said in Pepys case; that upon a Nihil dicit, Page  151 or Non sum informatum, &c. If the Iudgment passe upon them, that it shall be generall; I am not of that opinion, for the common experience of the Courts is, that such a generall Iudgment shall not be given against the Heir; unlesse it be upon a false plea pleaded, with which agrees Lawsons case, Dyer 81. and Henninghams case, Dyer 344. where the Iudgment passed by Nihil dicit, so that the saying in Plow. 440. a. that what way soever the Heir be condem∣ned in debt, if he do not confesse the Assets, &c. that it shall be his proper debt, is not now taken for Law.

And I also h•ld, that if the Heir plead falsly, and there is found more As∣sets, * that yet it is in the election of the Plaintiff to charge him and to take execution of the Assets only, or to take an Elegit of all his Land, and he is not bound to take an Elegit of all his Land in this case, for otherwise this in∣convenience may arise: If the Heir hath a 100. acres by discent, and two by purch•se, if upon the false Plea of the Heir the Plaintiff cannot have any other execution but an Eligit of the Moyety of his Lands, then he by this is prejudiced, for otherwise he might have all he Assets in execution, and so the Heir by this way shall take advantage of his false plea. 3. He held as Whitlock before, and for the same reason Doderidge Iustice: How the Heir shall be b•und by the act of his Father, is worthy of consideration, upon which Prima facie the Books seem to disagree, but being well considered, ac∣cord with excellent harmony. I have considered this case, it was moved at Reading Term, and because my Notes are not here, I will speak more brief∣ly, and will consider.

1. H•w an Heir shall be charged upon the Obligation of his Father? and as to that in debt against an Heir, he is charged as Heir, so that at this day it is taken as his proper debt, wherby the Writ is in the Debet and Detinet, * but in the Detinet only against Executors: But in former time from the 18. of Ed. 2. till 7 H. 4. if an Executor had Assets, the Heir was not chargable, but in 7 H. 4. the Law changed in this point, for now it is accounted his own debt, and debt will lye against his Executor, as it is said in Plow: Com: and so against the Heirs of the Heir to many generations, albeit of this Plowden makes a doubt, and his plea that he had nothing at the day of the Writ purchased, nor ever after, is good, for if he alien the Assets he is discharged of the debt, in regard he is not to wait the action of the Obligee.

2. The Heir shall be ch••ged upon or Recognisance, not as Heir, but as Ter-tenant, for he is not bound in the Recognisance, but only the Conusor grant that the debt shall be levied of all his Lands and Tenements, but not against his Heirs. And here he is not meerly as Ter-tenant, for he shall not have contribution ag••st •her Ter-tenants, but only against those who are Heirs as himself is, but to all other intents he is Ter-tenant, and so charged, * as 32 E. 3. and 27 H. 6. a••.

3. That upon a Iudgment (as our case is) the Heir shall be charged as Ter-tenant and not otherwise: The Book which hath been cited, viz 33 E. 3. Execution 162. is expresse in the point; the broken years of Fitzher∣bert are obs•urely reported, but by comparing of cases it will appear to be our case ex•resly.

4. That albeit an Heir shall be charged upon the Obligation of his Ance∣stor, where he is particularly bound, yet upon his false plea no execution shall be but upon the assets: So it seems to me that in the principall case the Iudgment shall be speciall, and it seems to be a very plain case.

Crew chief Iustice agreed, and in his argument he affirmed what Jones said, that a generall Iudgment shall not be given against the Heir, if he do not plead falsly that he hath no Assets, and not upon Nihil dicit: And so Iudgment was given that the Plaintiff shall have Execution of the Moyety of the Lands discended to the Defendant; and so note the diversity of debt a∣gainst the Heir, and Scire facias against the Heir.

Dickenson versus Greenhow, Hill. 1. Car. In the Kings Bench, Intr. Hill. 18. Jac. Rot. 189.

IN an Attachment upon a Prohibition, the Plaintiff declared that where Robert the last Abbot of Cokersham in Lancashire, was seised in Fee of three acres of Land, parcel of his Monastery, and that the Abbot and his Com-monks, and all the Predecessors of the Abbot were time out of mind of the order and rule of Praemonstratenses, and that the order of Praemonstratenses, and all Monks therof, were time out of mind discharged of payment of tithes for their Lands and Tenements, Quamdiu manibus propriis aut sumptubus excol•bant. And that the said Abbot and all his Predecessors time out of mind had holden the said three acres discharged of payment of Tithes, Quam∣diu, &c. and so held them untill the dissolution of the Monastery, and shew the surrender to H. 8. and the Statute of 31 H. 8 by force wherof H. 8. was seised and held them discharged, and from him derive them to E. 6. and from E. 6. to Queen Mary, and from her to Queen Elizabeth, and from her in the 42. year of her Raign to Wagstaff, and from him by mean conveyances to Dick∣enson the Plaintiff, Quorum pretextu he was seised, and enjoyed them in Propria manurantia, and shew the Statute of 2 E. 6. cap. 15. wherby it is e∣nacted that Tithes shall be paid as usually they were, &c. Quorum pretextu, the Plaintiff held the three acres discharged of Tithes, and that notwith∣standing; and against the Prohibition, the Defendant did draw him into Plea for them in Court Christian, and the Iudge therof held plea, and the De∣fendant did there prosecute, him to the disinherison of the Crown: And upon this the Defendant demurred, and prayed a consultation. And Sir John Davies the Kings Serjeant argued for the Defendant, that a Consultation should be granted, because that his matter of discharge is double.

1. His Priviledge. 2. The prescription, and if either of them will not help him, then he ought to be charged: For the Priviledge, he took it that the Praemonstratenses never had such a priviledge. It is a Maxime in Law, * that all persons ought to pay Tithes, and all Lands shall be charged with them of common right; but also there are divers discharges of them and al∣lowed by our Law (as is manifest by the orders of Templers, Hospitalers, and Cistertians, which discharges our Law allows) and these are, 1. By pre∣scription. 2. By reall composition. 3. By priviledge obtained, and that by two wais.

1. Either by the Bull of the Pope, for he taking upon himself to be the great Dispens•r and Steward of the Church, took upon him to discharge them, but this (as it is holden by the Canon) he could not absolutely do, but might divert them to a Clergy-man, or grant to another to hold them by way of retainer, and this ought to be to a Clergy-man also. Or,

2. By a generall Counsell, for some orders were discharged by generall Counsels: So some obtained Priviledges by the Popes Bulls, which are his Patents, some by Counsels which are as his Statutes, and Decrees were as Iudgments, but yet none of them had ever any force in our Law, nor did bind us in England more then voluntarily retained and approved by usage and custom, for as it is said in 11 H 4. the Pope cannot alter the Law of England, and this is evident, for in all cases where the Bulls or Consti∣tutions of the Pope crosse the Law of the Land, they have alwaies been re∣jected *; as for instance,

1 In the Bulls which are of four sorts.

1. Of Provision.

2. Of Citation.

Page  157 3. Of Exemption. And 4. Of Excommunication. And as for those of Excommunication, it appeareth that it was Treason at Common Law, and that the Treasurer did kneel to E. 2. for one who brought them in, and in the perpetuall course of the Books afterwards, they have alwaies been disallow∣ed in Pleas. So his Bulls of Citation, before the Statute of Provision was a hainous offence, and so are Bulls of Provision and Exemption. For his Canons, where they were against the Law they were neglected. It ap∣peareth by the Canon, Quod nullus capiat beneficium a Laico, and yet not∣withstanding continued long after for Benefices, and does yet for Bishop∣ricks, that the Clergy shall take them from the King and a lay-hand: And also there is a Canon for exemption of Clarks out of temporall Iurisdiction: but yet as Brain saith, 10 H. 7. 18. it was never observed here. So the Ca∣non saith, that the time of the Laps shall be accounted Per septimanas, but our Law not regarding this, saith, that it shall be accounted Per menses in the Calender, as it is expresly adjudged in 5 E. 3. Rot. 100. Rot. claus in turri: And there is a great reason for it, as it is in 29 H. 3. memb. 5. in turri. It is not necessary for Bishops of England to go to generall Councells; so as in Parliament those that do not •end Knights or Burgesses shall not be bound by Statutes. And the Counsels of Lyons, of Bigamis, &c. are expounded by Statutes how they shal be taken; so that it they have a Priviledge (as in truth they have) by the Popes Bulls, if it were not allowed in England, they are not of force to priviledge them against the Common Law of the Land for pay∣ment of Tithes; but this was never here allowed.

And now for the Prescription this cannot help them, for Monks are not of Evangelicall Priesthood, to wit capable of Tithes in the Pernamy, but meerly Lay-men, and then as the Bishop of Winchesters case is, they cannot prescribe in non decimando; And Bede saith of them, that they are Merè laici, so that if their Priviledge were allowed, their Prescription will not help them. The priviledge of Praemonstratenses was by the Counsell generall of for their discharge, which denies that all religious persons should be discharged of Tithes of Lands in their own hands, Quamdiu, &c. But afterwards Adrian restrained it to Templars, Hospitalars, and Cister∣tians, omitting the Praemonstratenses; and the decree of Adrian was received also, wherby the Law took notice of the discharge of the said three Orders. True it is, that the Praemonstratenses have a Bull of Pope Innocent the third, of discharge, and as large liberties as the Cistertians, but they never put this in ure: And it seems, 1. That there were of them 29. Abbots & Abbys, and yet their priviledge is not mentioned in all the Books as the Cistertians is. 2. They complained to Gregory the nineth, that they were not suffe∣red to put it in ure, and notwithstanding this complaint and command of the Pope to the Clergy to allow them this priviledge, yet 24 H. 3. Com∣plaint was made against them in Parliament for claiming this priviledge: But the Statute of 2 H. 4. cap. 4. put this cut of doubt, for this put the Ci∣stertians in a premunire, for purchasing and putting in execution Bulls of exemption of their Lands purchased afterwards.

Now if the Praemonstratenses had the same priviledge they should not have been omitted •ut of this Statute; then comes the Statute of 7 H. 4. cap. 6. which terrifies all from putting in execution Bulls of Exemption of their Lands not put in execution before, upon which it is not to be presumed that it was put in execution afterwards.

But admit that the Praemonstratenses had this priviledge: I say, that the Plaintiff hath not applied this priviledge to himself, for he hath not averred in fact that at the time &c. Propriis manibus excolebat, nec ad firman demit∣•ebat; And this he ought to have done if he would take advantage of the pri∣viledge, Page  158 as in Dickensons case, Novel lib. intr. 542. there it is expresly al∣ledged in the like case, as ours is here, and where the same priviledge as here is claimed, Quod manibus propriis excolebat.

True it is that it is said here, that after the Feoffment to him made, he was seised Et gavisus fuit in propria manutenor, but he doth not say, that at the time of the Tithes due, gavisus fuit, &c. as he ought expresly to have done, as appeareth by other cases.

If one prescribe to have common in arable Land when the Corn is reaped, or in Meadow where the Hay is carried away, and justifie by reason therof he ought to aver that the Corn or Hay was carried away when he put in his Cattell, otherwise he hath not applied the prescription to himself.

So if one justifie for Common Quandocunque audia sua jerint, he ought to aver that his Cattell then went in the place where, &c. as 17 Ass. 7. So if the King pardon all but those who adhere to M. he who plead it ought to a∣ver that he did not adhere to M. so here the priviledge is Quamdiu propriis manibus, &c. and therfore at the time he ought to aver that he had it propriis manibus, &c.

Also where upon the surrender to H. 8. and the Statute, they conclude that the Queen held it discharged, this cannot be, for this ought to be in such man∣ner as the Abbot held it discharged, but this was quamdiu, &c. and the King cannot be bound to such an unbeseeming condition, and therfore he shall hold it disch•rged: Like to the case where the Abbey hath the presentation, and another the nomination, the Abbey surrender, he who hath the nomination shall have all, for the King shall not present for him, it being a thing unde∣cent for his Majesty, and so he concluded for the Defendant.

Banks contra. 1. That it is a good cause of Prohibition. 2. That it is well applied to us.

1. That the order of Praemonstratenses is discharged of Tithes, that they had once this priviledge, hath been allowed by the other party, by the Bulls of the Pope, and that it was allowed and taken notice of, he proved by this that this Bull was confirmed by King John in the 24. year of his Raign, the Charter wherof he said he had under Seal, and 22 E. 1. membran. 5. there were 26. Abbeys of this order, and the King took them all into his protecti∣on with their Immunities, and 22 Rich. 2. John de Gant having Jura Re∣galia in Lancashire (where the Abbey is) confirmed to them this Bull, and also this hath been divers times allowed and decreed to them in Court Chri∣stian for suit of Tithes, as in the case of the Abbey of Bigham which was of the same order.

And as to that which was objected, that if the Praemonstratenses had such a priviledge as the Castertians in 2 H. 4. that the like provision would have been against them.

As to this I answer, that such a provision is not against the Templars nor Hospitalars, and yet they have such a priviledge.

2. It may be that they never enlarged their priviledged above their grant. And for the Statute of 7 H. 4. our Priviledge was not then new, and it was afterwards allowed in 22 R. 2. And also I conceive, that if the Abbey were discharged at the time of the dissolution, although not De jure, yet this is a sufficient discharge within the Statute of 31 H. 8. as it is taken Co. lib. 11. 14.

2. I hold that they may here prescribe to be discharged of Tithes, because they are Spiritual persons, and capable of cure of Souls, and capable of tithes in Pernamy, as if an Appropriation be made to them.

3. It is not now to be argued, whether they have such a priviledge, for they have demurred, which is a confession of all matters in Fait, &c.

Page  159 4. If there be a matter wherupon the Prohibition may be grounded it will serve, vide Dyer 170, 171. Co. lib. 11. 10.

And 5. The priviledge is well applied, because it is shewn that they were once discharged.

6. He needs not to shew how he is discharged, 22 E. 4. 4. 5 E. 4. 8. 20 E. 4. 15. Also the discharges are temps dont, &c. and therfore not pleadable; so he prayed that the Prohibition might stand.

Pasch. 1. Car. In the Kings Bench. Bowry versus Wallington.

NOte that in this case upon the Statute of 50 E. 3. 4. it was agreed by the Court, that if there be a Suit in the Ecclestasticall Court, and a Pro∣hibition awarded, and afterwards Consultation granted, that upon the same Libell no Prohibition shall be granted again, but if there be an Appeal in this case then a Prohibition may be granted, but with these differences.

1. If he who appeals pray the Prohibition, there he shall not have it; for then Suits shall be deferred in infinitum, in the Ecclesiasticall Courts. *

2. If the Prohibition and Consultation were upon the body of the matter and the substance of it, for otherwise he shall be put many times to try the same matter, which is full of vexation. And the case was moved again, and argued by Noy, which was thus.

Wallington livelled in the Ecclesiasticall Court against Bowry for tithes of Wool and Lamb, and Bowry upon suggestion of a Modus derimandi ob∣tained a Prohibition, and had an Attachment, and declared upon it, and are at Issue upon the Modus, which is found for the Defendant, and Consultation granted, wherupon Iudgment was given in the Ecclesiasticall Court a∣gainst Bowry, upon which Bowry appealled, and prayed a new Prohibition, and had it, and Noy moved for a Consultation. 1. Because that a Prohibi∣tion and an Attachment upon it are but one Suit, for the contempt of the party in bringing his Suit in another Court, and translating this from the Kings Court, and when it is once tried for the Defendant, the same thing shall not be tried again. And as to the Statute of 50 E 3. 4. upon the mistake wherof the mistake is raised, he confessed that the Printed Books, and also in the Extract of the Parliament, one Roll remaining in the Tower is (the same Iudge) but the Parliament Roll it self, and the Petition is, Liceatque Iudici Ecclesiastico sive diocess. eidem an hujusmodi, and the answer to the Pe∣tition is, one Consultation granted sufficeth in this case: And the Parlia∣ment Roll it self was brought into the Court and viewed, but he said, that if it were as it is in the printed Book and Extract, the same Iudge shall not be intended the same personall Iudge, but the same Iudge of Conusance of the same Iurisdiction or cause, for otherwise, if another Commissary be made, as the Bishop may when he will, his Successor may be newly prohibited, and also one thing may be infinitely tried, for in many places the Suit begins in the Arch-deacons Court, and from him an Appeal may be brought to the Bishop.

The same Term in the Kings Bench. Pack versus Methold in a Writ of Error.

IN Mich. Term, 22 Jac. Methold brought an action upon the case in the Common Pleas against Pack, and declared that in consideration that the Plaintiff would pay to Playford 52 l. 14 s. to the use of the said Pack, such a day, &c. Pack promised to deliver to him his Bond (in which he was bound to him in the said summ) when he should be therunto requested: And shews that he had paid, &c. and the Defendant did not deliver to him the Bond, al∣beit the same to do he was afterwards often times requested, and upon non assumpsit pleaded, it was found for the Plaintiff, and now it was moved in Arrest of Iudgment, because the request is not laid specially, nor the day nor place therof expressed. But the Court, to wit, Hobart chief Iustice, Hutton and Harvey gave Iudgment for the Plaintiff, and yet they agreed, that if he had demurred upon the Declaration, it had not been good, and also that if it had been generall, Licet saepius requisit, it had not been good, in as much as it is parcell of the promise, and therfore ought to be said substantially; viz. That it was after the promise and payment of the 52 l. but the time is sup∣plied by these words Postea, and there is no defect but in the place, and (Po∣stea) implies that it was after the promise and payment.

And Hobart said, that all the points of the Declaration which have mat∣ter and substance are good, only there wants the place where the request was made, which by the Issue is moved, and the request is here well notified to the Court, and the defect of the place is now helped by the Statute.

Hutton said, that if the promise had been to pay so much upon request at Ea∣ster, there the day ought to have been shewn, and (Postea) had not been suf∣ficient, but here the Postea refers only to a thing wherby it is certain; and he said, that upon this Issue such a request shall be given in evidence.

Harvey said, that the request being here laid as it is, the Court may well give Iudgment: And it seemed to Hobart that such a request cannot be gi∣ven in evidence where the Issue is upon an Assumpsit: And Iudgment was given for the Plaintiff; and afterwards a Writ of Error, Hill. 1. Car. * was brought in the Kings Bench, and the opinion of the Court was strong∣ly, that the Plaintiff ought to have alledged the request specially and ceriain∣ly in time and place, because it is traversable and parcell of the Assumpsit, and not to be done but upon request.

Jones Iustice remembred divers Presidents in the point, and further day was given to bring in Presidents of either side, and two Presidents were produced according to the opinion of this Court, Scil. Pasch. 30 Eliz. Rot. 464. in 1. Court, Old and Estgreens case, Trin, 16 Jac. Rot. 268. Wales case.

But in Debt Licet saepius requisit is sufficient, for it is not materiall nor traversable, for the bringing of the action of Debt (which is a Precipe) is a sufficient demand in it self, and afterwards at another day the Court con∣tinued of the same opinion, and therfore the Plaintiff in the first action brought a new action, Quod nota, for albeit the Defendant had pleaded non assumpsit, and Issue was joyned upon it, yet this did not amend the evill laying of the request, according to the Presidents abovesaid.

Pasch. 2 Car. In the Kings Bench, int. Hill, 1 Car. Rot. 135. Constable versus Clobery.

IN an action of Covenant, the question was upon the Traverse; the Plain∣tiff declared upon the Indenture of Covenant, and the Covenant was that a Ship shall go with the next fair wind, and that the Merchant shall pay so much for fraught: the Defendant saith by way of traverse, that he did not go with the next wind, and it was obiected by Stone of the Temple, of Coun∣sell with the Plaintiff, that the Traverse was not good, but he ought to have traversed that the Ship did not go at all, for that which is materiall shall be traversed, and that the Ship did not go is the most materiall thing here, and this appeareth by 15 E. 4. 2. where a Gift in tail is traversed, and not the death of the Tenant in tail, 19 H. 8. 7. 36 H. 6. 16. 2 H. 5. 2. 2 H. 7. 12. and there are cases to this purpose, Co. lib. 7. 9. Ughtreds case: If a man intitles himself to Land by an Estate which cometh by Condition, he ought to shew that the Condition is performed: A Covenant against a Covenant will not make an Estoppell, but he shall bring his action, 3 H. 6. 33. Where he ought to shew that he went to Rome, because it is a precedent Condition: The principall case in Ughtreds case prove other, to wit, that which is materiall is alledgable: And the difference upon the case of 48 E. 3. 3. 4. Where A. Covenant with B. to serve him with three Esquires in France, and B. cove∣nant for it to pay him 42. marks, he may chuse to covenant in generall or speciall, as he will, for there was Covenant against Covenant, and here there is a Covenant of one part to go with the Ship, and on the other part to pay so much for the Fraught, and so Covenant against Covenant.

And it seemed to Doderidge Iustice, that the Traverse is not good, for the Traverse here is by permission of God.

And for another thing where Merchants covenant to pay joyntly and seve∣rally, according to the quantity of the Wares, there an action of Covenant may be brought against one alone, for the Deed is severall.

And by Crew chief Iustice, it cannot be a good Traverse, for a circum∣stance cannot be traversed, for wind is alterable, and a thing materiall is on∣ly traversable, and here the Covenant is severall for their severall Fraughts, and it may be that others have paid him.

Jones Iustice, the traverse is not good; and for the other matter he cited Mattheusens case, Co. lib. 5. 22. Where upon a Charter party if one seal be broken all is gone. If three are bound ioyntly, and an action is brought a∣gainst one, and it appeareth that others have sealed, the Writ shall abate: But in this case an action lies against him alone, although the other be named in the Indenture.

The same Term in the same Court, intr. Hill. 22. Jac. Rot. 1019. Millen versus Fandrye.

AN action of trespasse was brought for chasing of Sheep, the Defendant pleaded that they were trespassing upon certain land, and he with a lit∣tle Dog chased them out, and as soon as the Sheep were cut of the land he cal∣led in his Dog, and upon this the Plaintiff demurred; The point singly was but thus; J chase the Sheep of another out of my ground, and the Dog pur∣sues them into another mans land next adjoyning, and J chide my Dog, * Page  162 and the Owner of the Sheep brings trespasse for chasing of them: And it was argued by Whistler of Grays-Inne, that the justification was not good, and he cited Co. lib. 4. 38. b. that a man may hunt Cattell out of his ground with a Dog, but cannot exceed his authority, and by him an authority in Law which is abused is void in all, and to hunt them into the next ground is not justifiable. The Books differ, if Cattell stray out of the high way invo∣luntarily, whether Trespasse lies, 7 H. 7. 2. and H. 7. 20. but all agree, that they ought to be chased out as hastily as may be.

Littleton argued for the Defendant, that Cattell may be chased out into an∣other mans ground, and he said that a man cannot have such a power upon his Dog as to recall him when he pleaseth, and a Dog is ignorant of the bounds of Land, and he resembled this case to other cases of the Law; first to 21 E. 4. 64. In Trespasse of Cattell taken in A. in D. the Defendant saith, that he was seised of four acres called C. in D. and found the Cattell there Damage feasant, and chased them towards the Pound, and they esca∣ped from him and went into A. and he presently retook them, which is the same Trespasse, and admitted for a good plea: and 22 E. 4. 8. In trespasse the Defendant justifies by reason of a custom that they which plow may turn their Plow upon the Land of another, and that for necessity, and it was al∣lowed for a good justification, and he hath more government of his Oxen, then in our case he can have of his Dog.

If a man be making of a lawfull Chase, and cannot do it without damage to another, this is Damnum absque injuria, 21 H. 7. 28. And he cited a case which was in Mich. 18 Jac. between Jenning and Maystore, where a man of necessity chased Sheep for taking one of his own, in trespasse he may justifie it: And also if a Dog goes into the Land of another (as in this case) tres∣passe does not lye, but otherwise it is of Cattell.

Crew chief Iustice, it seems to me that he might drive the Sheep out with the Dog, and he cold not withdraw his Dog when he would in an instant, and therfore it is not like to the case of 38 E. 3. Where trespasse was brought for entring into a Warren, and there it was pleaded that there was a Phea∣sant in his Land, and his Hawk flew and followed it into the Plaintiffs ground, and there it seems that it is not a good justification, for he may pur∣sue the Hawk, but cannot take the Pheasant, 6 E. 4. a man cuts Thorns, and they fell into another mans Land, and in tresgasse he justified for it; and the opinion was, that notwithstanding this justification trespasse lies, because he did not plead that he did his best endeavour to hinder their falling there, yet this was a hard case; But this case is not like to these cases, for here it was lawfull to chase them out of his own Land, and he did his best endeavour to recall the Dog, and therfore trespasse does not lye.

Doderidge Iustice agreed, for here was no hedge, and when he saw them out of his own ground, he rated the Dog, 12 H. 8. this difference is taken, if I see Sheep in my Land, I may chase them out, but if another sees them and chase them out, I may have trespasse against him, because he hath taken a∣way * my advantage; and the nature of a Dog is such that he cannot be ruled suddenly, and here it appeareth to be an involuntary Trespasse, 8 E. 4.

A man is driving Goods through a Town, and one of them goes into ano∣ther mans house, and he follows him, trespasse doth not lye for this, because it was involuntary, and a trespasse ought to be done voluntarily, and so it is Injuria, and a hurt to another, and so it is Damnum.

If Deer be out of a Forest, the Owner of the Land where they are may hunt them, and if the Deer flye to the Forest, and the Hounds pursue him, then he ought to call in the Dogs, and so I may justifie, and trespasse lies not.

In the time of chief Iustice Popham, this case was adjudged in this Court.

Page  163 Trespasse was brought for hunting and breaking of hedges, and the case was, that a man started a Fox in his own land, and his Hounds pursued him into another mans Lands, and it was holden that he may hunt and pur∣sue him into any mans land, because a Fox is a noysom creature to the Common-wealth.

Bracton saith, that when a man is outlawed he hath Caput lupinum, and he may be hunted through all the County: And he agreed the case of 8 E. 4. If a Tree grow in a hedge, and the Fruit fall into another mans land, the Owner may fetch it in the other mans land, and he also agreed the case of 22 E. 48. of the Plew, and so concluded that the trespasse doth not lye.

Jones Iustice, that the trespasse doth not lye, vide Co. lib. 8. 67. Crogates case, and lib. 4. Terringhams case, and he cannot recall his Dog in an instant: And the same day Iudgment was given for the Defendant, Quod quaerens nil capiat per billam.

The same Term in the same Court. Marsh versus Newman.

IN a Replevin the Defendant pleaded that was seised In jure Collegii, and doth not say, that he was in Dominico suo ut de foedo, and the Plaintiff demurred upon the Avowry. And Andrews argued for the Plaintiff.

1. The Defendant ought to have alleadged certainly that they were seised in Fee; for Littleton saith, that in Counts and pleadings a man ought to shew how he is seised, 8 E. 3. 55. 13 Eliz. Dyer. 299. Pl. 31. An Inquisition was found upon an extent of a Statute-merchant, and doth not shew how the Conusor was seised, but only that he was seised, and the Inquisition holden void. But it may be objected, that if Land be given to a Dean and Chapiter that they have fee, 11 H. 7. 12. I confesse it: But the constant use of plea∣ding hath alwais been in case of a Bishop, Colledge, &c. to say, that they were seised in Fee, as appears in Hill and Granges case, and Co. lib. 6. the Dean and Chapiter of Worcesters case, and Co. lib. 11. 66. Magdalen Col∣ledge case; and it appeareth by 20 H. 7. in the Abbey of S. Austins case, that an Abbey may have a Lease Prae auter vie, and so perhaps here the Dean had a Lease but Prae auter vie, and therfore ought to have alledged that he was sei∣sed in Fee, if the truth were so. And he moved other exceptions, as 1. That the Defendant intitled himself to a Lease as Executor, and doth not plead Literas testamentarias.

2. That the Defendant entitles himself to a Rent, part of which was due in the time of the Testator, and part in his own time, and doth not shew when the Testator died, and therfore the Avowry not good.

Jermy for the Defendant that the Avowry is good, and it cannot be other∣wise intended but that they are seised in Fee, 11 H. 7. Lands given to a Ma∣jor and Comminalty is Fee-simple, but otherwise of an Abbot and Parson, Plow. 103. and Dyer 103. A Seisin in Fee is implied by Seisin In jure Collegii; and because it hath been objected that he may be seised Prae auter vie, this is but a forraign intendment, for a Fee is alwaies intended Seisin in Fee-simple.

For the second objection, because Non profert literas testament, true it is if he entitle himself meerly as Executor, he ought to bring in Literas testamen∣tar. but our case is not so, for here we are Defendants, and we endeavour Page  164 only to excuse a Tort, 36 H. 6. 36. Where a man is Plaintiff he ought to show Literas testamentar. that so the Court may see that he hath cause of acti∣on, but here it is only by way of excuse.

For the third, that the death of the Testator doth not appear is not mate∣riall, for if any part be due to him, it is due as Executor.

Doderidge, they ought to have pleaded that they were seised in Fee; true it is, that Land given to a Major and Comminalty is Fee-simple, and the reason is because they are perpetuall, and if the Estate be not limitted they shall take according to their continuance, 11 H. 4. 11 H. 7. and 27 H. 8 Dock∣rayes case, they may be seised Prae terme dauter vie, but if they had pleaded that they were seised to them and their Successors, this pleading is good, Pri∣ma facie, 17 E. 3. 1.

Crew chief Iustice, all the authorities are that ther were seised in Fee, Injure Collegii, and it is good to admit a new way of pleading.

Jones Iustice, Tenant Prae auter vie makes a Lease for years, and cestui que use, dies, he cannot have an action of Debt against Lessee for years, for years, for he is now Tenant at sufferance. But for the first point, it seems to him that the pleading is not good, for although in point of Creation, they take a Fee by a Gift to Dean and Chapiter, yet in pleading they ought to alledge their E∣state specially, for they may have an Estate Prae auter vie: And this is in an Avowry which shall be taken strickly. And by Crew chief Iustice, the Defendant here ought to shew Literas testamentar. for he is an especiall A∣ctor in the Avowry. And by Doderidge, Longissimum vitae tempus est 100. years, Co. lib. 10 50. Lampets case, and therfore in pleading, if the Defen∣dant had said, that a Dean and Chapiter were seised, and made a Lease for 200. years, this implies a Seisin in Fee, because a man cannot have so long a life, but here the Lease is but for 89. years, and it is common to let for 89. years, if A. shall so long live, yet this is but a slip, and the Title is apparant.

The same Term in the same Court. Hodges versus Moore.

IN Debt for marriage money, the case was this: A man was bound to Hedges to pay him a 1000 l. after that he had married his Daughter, and afterwards he married her, and brought Debt upon this Obligation, and it was not averred that he had given notice to him of the marriage, but deman∣ded the money: And this was moved by Noy in Arrest of Iudgment (but quaere if request afterwards doth not implynetice.)

And Doderidge Iustice put this case, A man is bound to pay a 100 l. two * moneths after A. return from Rome, he ought to give notice of his return before that he can have an action upon this Obligation, for he may land at Newcastle, or Plymoth, where by common intendment the Obligor cannot know whether he be returned, or not; and this was agreed by the chief Iu∣stice and Jones.

And Serjeant Davies argued for the Plaintiff, that there need not precise notice to be given, and he cited 1 H. 7. 18 E. 4. and Co. lib. 8. Where the Obligor shall take notice at his perill, and so here because he takes upon him •or to pay it: And it was said, that one Blackamores case was adjudged in the point, and he conceived also that this request afterwards is a sufficient no∣tice. But Noy for the Defendant said, that he ought to give notice, or other∣wise this mischief would ensue, that if he had not married her, and yet had Page  165 demanded the money he ought to pay it: and he said, that where an act is to be done by a stranger, the Plaintiff or Defendant ought to take notice ther∣of at his perill, as the case E. 4. where a man was bound to stand to the A∣ward of I. C. he ought to take notice of the Award at his perill: but where it lies properly in the Conusance and notice of the Plaintiff, there he ought to give notice therof to the Defendant, Co. lib. 5. Mallories case: If a Rever∣sion be bargained and sold to J. S. the Bargainee shall have the Rent without Attornment; but if a penalty be to be forfeited, he ought to give notice to the particular Tenant of the Grant, or otherwise he shall not take advan∣tage therof: and he cited a case which was in 17 Eliz. Stephen Gurneys case; Lessee for years, the Reversion is granted over for years by way of future Interest, to begin upon the death, forfeiture, or determination of the first Lease; provided that if the Rent upon the second Lease be arrear, that the Lessor may enter; the first Lessee surrender, a Rent-day incur, the se∣cond Lessee doth not pay the Rent, the Lessor shall not enter for a Forfei∣ture, because the first Lease determined by an act which lies properly in the Conusance of the Lessor, and because he was to take advantage by it, he ought to have given notice therof to the Lessee, and here he might have well given notice to the Defendant, for it lies properly in the Conusance of the Plaintiff.

The second Objection was, that here was an implied notice, because the Marriage was at the instance of the Defendant, which implies a notice.

Vnder favour, this is no notice, for this is before the marriage, but if no notice be given after the marriage, then there is no notice.

But by Serjeant Davies, there is a sufficient implication, and there is no need of notice in our case; and see Co. lib. 8. Francis his case, where they ought to take notice at their perill, and a marriage is an Ecclesiasticall Iudgment of which he ought to take notice, and he was interrupted, for all the Iustices went to the Parliament. And divers Presidents were cited, that there need no notice to be given in this case: And it was agreed that Iudgment should be given for the Plaintiff: And in Trinity Term next fol∣lowing, Iudgment was accordingly given for the Plaintiff.

The same Term in the same Court. Sir George Reynolls Case.

SIr George Reynoll Marshall of the Marshalsey of the Kings Bench, * •rought Debt upon a Bond, the Condition wherof was, that the Defen∣dant shall be a true Prisoner, and it was doubted whether the Bond were within the Statute of 23 H. 6 cap. 10.

Doderidge, It is not to be understood by this Statute that a Sheriff, Ga•∣ler, or Marshall shall take no Bond, for if the Marshall hath a man in execu∣cution, and fear that he will escape, and he takes Bond of him, this Bond is good.

Jones, The intent of the Statute, that the Sheriff or Marshall shall not suffer Prisoners to go at large, for that is within the Statute.

And it was ruled in the Kings Bench, that the Marshalsey should be enlar∣ged, * and this shall be called within the Rule, and if the Marshall take a Band to tarry there it is good, but if he suffer him to go at large, it is not good.

The same Term in the same Court, Sury versus Albon Pigot, and three other Defendants, Intr. Hill. 1. Car. Rot. 1. 24.

IN an action upon the case for stopping his Water-course, the Plaintiff de∣clares that 14. Octob. 22. Jac. he was possessed of the Rectory of M. in Bark∣shire, of which a Curtilage was parcell, and that in this Curtilage is and hath been time out of mind a watering place, for the watering of the Cattell of the Plaintiff and others, and for other necessary uses, and that a certain Watercourse had time out of mind flowed from Mildford stream to this Cur∣tilage, and that this water filled the said Pond; and further that the De∣fendant well knowing this, and intending to dam up the said Watering-course, built a stone Wall therupon wherby the Water-course was stopt up, to the Plaintiffs damage of 20 l. and this was laid with a Continuando. The Defendant plead that 3 H. 8. the said H. 8. was seised of the Mannor of &c. and of the said Rectory in his Demesne as of Fee, and of a certain peece of Land called the Hopyard lying between the said watering-place and the said stream, and by his Letters Patents granted this to Wiliam Box and his Heirs, by virtue wherof he was seised: Francis Searles entred upon him and was seised, and enfeoffed Pigot, 20 Jac. by virtue wherof of he was seised, &c. and the three others justifie as Servants to Pigot, that they the said day and year filled up the said Water-course, as it was lawfull for them to do; and * that this is the same Trespasse, &c. The Plaintiff demurs. And the que∣stion is, whether the unity of possession of all in H. 8. hath extinguished the Water-course.

And by Dorrell for the Plaintiff, if it were of a Common, it is cleer, that it is destroyed, because Common ought to be in another mans Land, but not in our case, for if one prescribe to have Warren, if he purchase the Land yet he shall have Warren, 11 H. 7. 25. there are two houses, and the one prescribe that the other shall mend the Gutter, and afterwards they come to the hands of one man, and then he alien one of them, this unity shall destroy the mending of the Gutter.

Berd for the Defendant, that the unity hath destroyed the custom, 21 E. 3. 2. A way is but an easement, yet by the purchase of the Land the way is ex∣tinguished, and also the watering-course is not only an casement but a pro∣fit, or Prender; and he cited Dyer 295. in case of an Inclosure, that the In∣closure is extinguished, but there is made a quaere, and he cited 38 Eliz. in C. B. an opinion, that by purchase of a Close the Inclosure is extinguished; a fortiori here because it is a profit: And for the case of 11 H. 7. it is by the custom of London, but there is no custom in our case, and the case of a War∣ren is not like to our case, because a man may have Warren in his own Soil; And in Michaelmas Term next the case was argued again by Barkesdale for the Plaintiff, that the unity of possession in H. 8. had not extinguished the Water-course, and that the Terminus ad quem, and the Medium also being in one, had not distinguished nor destroyed it. And 1 Col lib. 4. 26. Benedicta est expositio quando res redimitur a distructione; The Law will not de∣stroy things, but the Law will somtimes suffer a fiction (which is nothing in rerum natura) ut res magis valeat. I confesse that profit apprender as Com∣mon, or Rent is extinguished by unity of possession, for Common it appear∣eth in 4 E. 3. and Co. lib. 4. Terringhams case: And for Rent it appeareth in 4 H. 4. 7. and in 21 E. 3. 2. it appeareth that a way is extinguished by unity of possession, 3 H. 6. 31. Brook Nusance 11. for it is repugnant for a man to have a way upon his own Land: But I conceive that our case differs from the case of a way, and that for this reason; where the thing hath a being and ex∣istence, Page  167 notwithstanding the unity there it is not destroyed by the unity, but the Water-course hath a being notwithstanding the unity, ergo, &c. I will prove the major proposition by these cases, 35 H. 6. 55, 56. Where a War∣ren is not extinct by a Feoffment of the Land, for I may hawk and hunt in my own land as in another mans, so the Warren hath existence, notwith∣standing the unity, Dyer 326. Where the Queen was seised of Whaddon Chase, and the Lord Gray was Lievtenant there in Fee, and he and his An∣cestors and their Keepers had by prescription used to hunt wandring Deer in the Demesns of the Mannor of S. adjoyning as in Purlieues: the Mannor of S. comes into the Queens hands, who grants this to Fortescue in Fee, with free Warren within the Demesns, &c. it was holden that the unity doth not extinguish the Purlieu, Dyer 295. Two Closes adjoyn, the one by pres∣cription is bound to a Fence, the Owner of one purchase the other, and suf∣fer the Hedges to decay, and dies, leaving two Daughters his Heirs, who make partition: Quaere whether the prescription for the Inclosure be revi∣ved; true it is that it is made a quaere, but he saith, see the like case, 11 H. 7. 27. of a Gutter which proves our case, as I will shew afterwards.

For the Minor proposition that the watering hath being, notwithstanding the said unity, I will prove it by 12 H. 7. 4. A Precipe quod reddat of Land Aqua Co-opert, Mich. 6. Jac. Challenor and Moores case. An Ejectione firmae, was brought of a Watering-course, and there resolved that it does not lye of it, because it is not firma, sed currit, but of Terra aqua co-operta, it doth lye. Also I will take some exceptions to the Bar, there is no Title in the Bar for the Defendant Pigot, and so we being in possession, albeit in truth we have no Title, yet he who hath no Title cannot oust us, neither can stop the said Water-course, and it is only shewn in the Bar that Searles entred and enfeoffed Pigot, but for any thing as yet appears the true Owner continued in possession, 21 Jac. C. B. Cook against Cook in a Writ of Dower, the De∣fendant pleads an Entry after the Darrein continuance, and doth not plead that he ousted him, and upon this the Plaintiff Demurs, and there adjudged that it is no plea in Bar, because he doth not say, that the Defendant entred and ousted the Tenant. 2. Exception, the action is brought against four, Scil. Pigot, Cole, Branch, and Elyman; and Pigot hath conveyed a Title from Searles, the three other Defendants justifie, but Pigot doth not say any thing but that Searles enfeoffed him, 7 H. 6. an action of Wast is brought against many, one answers, and the other not, this is a discontinuance: And for the principall matter, I will conclude with 11 H. 7. 25. Broo. Extinguishment 60. Two have Tenements adjoyning, and the one hath a Gutter in the others Land, and afterwards one purchase both, and then he alien one to one, and another to another, the Gutter is revived notwithstanding the unity, because it is very necessary, and so he prayed Iudgment for the Plaintiff. Bear for the Defendant: I in a manner agree all the cases which have been put on the other side; and I conceive that the Water-course is not Stagnum but Ser∣vitium, which is due from the one land to the other: It is but a liberty, and therfore I agree Challenors case, which is but a liberty that an Ejectione firmae doth not lye of it, but Ejectione firmae lies De stagno.

For the first exception I answer and confesse, that to alledge an Entry af∣ter the Darrain continuance, without alledging an Ouster of the Tenant, cannot abate the Writ, for the Defendant may enter to another intent as appeareth in the Commentaries, and with the assent of the Tenant; But here it was alledged that a Feoffment was made and a Livery which implies another.

For the matter in Law, I conceive that the Water-course is extinguished, and it may be compared to 21 E. 3. 2. The case of a way which is extin∣guished by unity of possession, Hill. 36. Eliz. Rot. 1332. Hemdon and Crouches Page  168 case. Two were seised of two severall acres of Land, of which the one ought to inclose against the other, one purchase them both, and lets them to seve∣rall men, and there the opinion was, and adjudged accordingly, that the In∣closure is not revived, but remains extinguished, 39 Eliz. Harringtons case, the same thing resolved, and albeit in Dyer 295. is a quaere, yet the better o∣pinion hath been taken according to these resolutions. H. 4. Jac. Jordan and Ayliffes Case, when one had a way from one acre to another, and after∣wards he purchased the acre upon which he had the way, and afterwards sold it, and in that Case the opinion of 3. Iustices was that the way was extin∣guished; also 11 H. 4. 50. and 11 H. 7. 25. prove this case, for the said case is compared to the custome of Gavelkind and Burrough English, and there the quaere is made whether by the custome it be revived, and if it be a custome which runs with the Land, the unity of possession doth not extinguish it, Co. lib. 4. Terringhams case, and 24 E. 3. 2. common appendant is destroyed by u∣nity of possession, and yet it is a thing of common right, but a Water∣course being a thing against common right, a fortiori it shall be extinguished. Now I will take some exceptions to the Declaration.

1. Because he hath laid a prescription for a Water-course, as to say, that it was belonging to a Rectory, to which, &c. and this is a good exception, as appears by 6 E 6 Dyer 70. Ishoms case, where exception was taken, that before his prescription he doth not say, that it was Antiquum parcum, which exception (as it is there said) was the principall cause that Iudgment was given against him, and also as the case is here, it ought to be a Rectory im∣propriate, and this cannot be before the time of H. 8. which is within time of memory, for before the said time no lay person could have a Rectory impro∣priate, and therfore I pray Iudgment for the Defendant.

Barksedale said, that the prescription is well laid, and that he would prove by 39 H 6. 32. and 33 H. 6. 26. and per curiam the prescription is good e∣nough, and albeit it is not said, that it is Antiquae Rectoria, yet it is well e∣nough, Mich. 1 Car. at Reading Term in Broek and Harris case, he doth not say, that it was Antiquum Messuage, and yet resolved good.

Doderidge, the case of 6 E. 6. differs in this point from this case, for a Rectory shall alwaies be intended ancient, and so is not a Park, for this may be newly created: and he put this case; suppose I have a Mill, and I have a Water-course to this in my own land, and I sell the Land, I cannot stop the Water-course.

Crew chief Iustice seemed of opinion that the prescription is gone, and that the better opinion in Dyer 13 Eliz. hath alwaies been that the Inclosure is gone by unity of possession, but yet the Water-course is matter of necessity.

Doderidge and Whitlock, the way is matter of election, but the course of water is naturall.

Jones Iustice, There is great difference between a way and a water-course as to this purpose, for admit that this water-course, after that it had been in the Curtilage of the Plaintiff, goes further to the Curtilage of ano∣ther, shall not that other have the benefit of this water-course notwithstand∣ing the unity of possession? I think cleerly that he shall.

Doderidge, my opinion is, that the water-course is not extinguished by the unity of possession: But some conceived that he had declared his opinion in terror to the Defendant: And afterwards the same Term Barksedale for the Plaintiff said, that he had agreed the case before, and therfore would now only indeavour to answer some exceptions which had been taken to the De∣claration.

1. Exception hath been that no prescription or custom is made for this wa¦ter-course, but only that Currere solebat & consuevit. But I conceive tha• Page  169 the Declaration is good notwithstanding this, because the Plaintiff here doth not claim an interest in the Water-course, but in the Land in which, &c. and therfore it is good, and this appeareth by 12 E. 4. 9. the Prior of Lanto∣nies case in a prescription in a Market overt generally, and the reason there was, because he was a stranger, as in our case he is, and this pleading ap∣peareth also to be good by Cooks Book of Entries, 18. Smiths case, which was entred 9 Jac. Rot. 366. in this Court. 2. Exception was, because it is not said, that it was Antiqua Rectoria. 3. Exception, because it doth not appear that he was a spiritual man to whom the Demise of the Rectory was made. 4. Be∣cause it is not said, that the Water-course Ad predict. Rectoriam pertinet. 5. Because the Water-course is alledged to be for his customary Te∣nants of the said Rectory, and this is not good, as appeareth by 21 Eliz. Dy∣er, 363. Prescription, Pro quolibet customar. Tenente, is not good, but I conceive that this case is not our case, for here is Customarius tenens Recto∣riae, and there it is agreed that Quilibet customarius tenens Maner. had been good: And the plea in Bar hath salved these objections, and therfore he pray∣ed judgment for the Plaintiff.

Jeremy for the Defendant; And first for the matter in Law, it seemed to him that by the unity of possession the Water-course is extinguished, and the Water-course may well be compared to the case of the way, for as a way is a passage for men over the land, so water hath passage upon the land, and a way is extinguished by unity, as appeareth by 21 E. 3. 2. 11 H. 4, 5. 21 Ass. and Davies Reports 5. and in 4 Jac. Jordan, and case it was the bet∣ter opinion that a way was extinguished by unity of possession; true it is, that there Popham chief Iustice put the difference, where the way is of ne∣cessity and where not, for where the way is of necessity there it shall not be extinguished: This case hath been compared to the case of a Warren in 35 H. 6. but I conceive that the cases are not a like, because a Warren is a meer liberty, 8 H. 7. 5. A man may have a Warren in his own Land, and Co. lib. 7. Buts case by a Feoffment of Land, a Warren doth not passe, but this Water-course hath its originall out of the Land, and this case cannot be compared to an ancient Water-course running to a Mill, for notwithstand∣ing the unity it shall passe with the Mill, for otherwise it shall not be Mo∣lendinum aquatinum, so that the water there is parcell of the thing, and so of necessity ought to passe with the thing, but here it doth not appear that it is a Water-course of necessity, and for any thing that appeareth, it may be filled with another Water-course: Also I conceive that the Declaration is not good. 1. Because neither prescription nor custom is laid for the Wa∣tercourse, and it appeareth in Co. Book of Entries, Holcome and Evans case, and the old Book of Entries, 616, 617. Mich. 1. Car. Rot. 107. Turner and Dennies case in this Court, in trespasse for breaking his Close, &c. the Defendant justified for a way, &c. and that he was possessed for years, and for him and his Occupiers had a way over the Land, the Plaintiff demurred, and resolved that the prescription is not good. 2. The Declaration is insuffi∣cient being an action upno the case for the stopping of a Water-course, and it is not Vi & armis, nor Contra pacem, Co. lib. 9. 50. the Earl of Shrewsburies case, when there are two causes of an action upon the case; the one Causa causans, the other Causa causata, causa causans may be alledged Vi & armis, for this is not the immediate cause of the action, but Causa causata F. N. B. 86. H. and 92. E. in the end of the Writ of action upon the case shall be Con∣tra pacem. 3. Also he hath prescribed for the Tenants of the Rectory, which is not possible, for no Lay-man could be Tenant of a Rectory, or of Tithes be∣fore the Statute of H. 8. and therfore I pray Iudgment for the Defendant.

Whitlock chief Iustice conceived that the declaration was good, & the bar is naught, both for the form & matter: the question here is of Aqua profluens, and Page  170 I conceive that there needs no prescription or custome in this case, for wa∣ter hath its naturall course, and as is observed by Brudnell in 12 H. 8. Natu∣ra sua descendit, it may be called Usu captio, or Vsage, and he conceived that the action upon the case very well lies in this case, like to the case where a man bath a house and windows in it, and another erect a new house and stop the light, then I may have an action upon the case; but true it is, that I shall not only count for the losse of the aire, but also I ought to prescribe that time out of mind light have entred by these windows, &c. see 7 E. 3. If there be a School-master in a Town, and another erect a new School in the same Town, an action upon the case doth not lye against him, because Schools are for the publike benefit, and every private man may have a School in his house. And for the exception, that a Lay man cannot be possessed of a Rectory, I conceive that the Declaration is good notwithstanding, for a Lay-man may have a Rectory by Demise.

And for the Plea in bar, it is not good for the form, because that Searles entred and enfeoffed Pigot, and it is not said, that he entred, and Expulit, and if a man enter and make a Feoffment, the owner being upon the Land the Feoffment is void, and therfore an actuall Ouster ought to be shown: And for the matter in Law, he conceived that the Bar was not good, for by the unity of possession the water-course is not extinguished, and yet I agree the cases of a way and common upon the differences of Rights which are put in Bracton, lib 4. 221. These are called Servitutes, as jus eundi, fodendi, hau∣riendi, &c. sunt servitutes quas praedia ex quibus exunt aliis praediis debent, and are called Servitutes praediales, and this began by private right, to wit, by grant or prescription.

A way or common shall be extinguished, because they are part of the pro∣fits of the Land, and the same Law is of Fishings also, but in our case the water-course doth not begin by the consent of parties, nor by prescription, but Ex jure naturae, and therfore shall not be extinguished by unity: A War∣ren is not extinguished by unity, because a man may have a Warren in his own Land, and in the case of 11 H. 7. the Gutter was not extinguished only by the unity of possession, but there also appeareth in the case that the Pipes were destroyed, wherby it could not be revived, and although the Book of 13 Eliz. Dyer 295. Two Closes adjoyn together, the one being by prescrip∣tion bound to a Fence, the owner of the one purchase, the other dies, having issue two Daughters, who make partition, it is a quaere whether the inclosure be revived, yet I conceive cleerly, that by unity of the possession the Inclo∣sure is destroyed, for fencing is not naturall, but comes by industry of men, and therfore by the unity it shall be gone, and so briefly with this diversity he concluded that where the thing hath its being by prescription, unity will extinguish it; but where the thing hath its being Ex jure naturae, it shall not be extinguished, and therfore the Plaintiff ought to have Iudgment.

Jones Iustice agreed, that the Declaration is good, and that the Bar al∣so is good in manner, but for the matter in Law it is not good.

As to the first exception to the Declaration, I conceive it is good, albeit there wants a prescription, and this is the ordinary of pleading, as appears in Co. lib. 4 Luttrels case, and in all the presidents before cited.

2. For the exception Vi & armis, he conceived this difference, where the act is a Trespasse and a Nusance, there it may be laid to be Vi & armis, but if it be a Nusance only and not a Trespasse, it is otherwise: as if I have a way over another mans Land, if a stranger dig in the Land so a• I cannot have the way, now because it is a Trespasse to the Owner of the Soil, in my action upon the case against a stranger, I may have Vi & armis, but if the owner stop the way, there Vi & armis shall not be in my action upon the case.

For the third exception, because he both not say, Ad Rectoriam spectandum, Page  171 but I conceive that it shall be intended ad Rectoriam impropriat, and so it appeareth.

4. Where it is said, Watering-course for his Tenants, I conceive it is good enough, being in an action upon the case where damages only are to be recovered: That the Bar also is good in form, for although the Tenant here be a Disseisor, yet it is a good Bar, for it matters not whether he hath a Title or no, if the Water-course be extinct by the unity, for the matter in Law, he conceived that the unity of possession had not extinguished the Wa∣ter-course. A man hath things out of another mans Land, either by grant as a Seigniory, Rent, Common, &c. and these are distinguished by unity, &c. and the reason is, because one who hath interest as Owner of the Land, can∣not have a particular interest in the same Land also. Or by prescription, and those things are extinguished by unity of possession also, and not only for the first reason because he is Owner of the Land, and so cannot have a particu∣lar interest in the same Land also, but also because that by the unity the pre∣scription fail? And for the case in Dyer, 13 Eliz. I conceive that by the uni∣ty the inclosure is gone, and so it was resolved in 37 Eliz. for every one is not bound to inclose: For the case of the way, I will suspend my opinion concerning it, because Clark and Lambs case is now depending touching it in the same point.

But now for our case, it differs from the other cases, for the prescription here is in another manner then is made for Common, for it shall be pleaded either as appendant, or appurtenant, but Currere solebat is only in this plea∣ding, for here no interest is claimed, but in the other cases an interest is claimed: In this case the Land remains as it was before, and therfore the unity will not extinguish it; and if such a unity by construction of Law should extinguish Water-courses, it would be too dangerous: for suppose that a man hath a Water-course from Thames to his house in Lambeth, if he purchase a parcell of Land in Hendley; now because that the Thames come by the same Land, his Water-course shall be extinguished. Also suppose that the Water-course after it hath been in the Curtilage of the Plaintiff, goes into another Curtilage, is it reason that by this unity the second man shall lose his Water-course? without doubt it is unreasonable. And the case of 11 H. 7. of the Gutter, warrants this opinion, and therfore the Plaintiff ought to have Iudgment.

Doderidge Iustice, I conceive no great difficulty in the case; for the ex∣ceptions to the Declarations they are not materiall.

1. That there wants Prescription or Custom, I conceive that it is good enough, for here are the words of Currere solebat & consuevit, and Consue∣vit is a good word for a Custom.

2. That a Lay-man cannot have a Parsonage; true it is, that a Lay-man cannot be a Parson, but he may have a Parsonage, for he may be Lessee of it, which appeareth many times in our Books.

3. That it is not alledged to be Vi & armis, this is the most colourable exception, and the case and rule cited out of Co. lib. 9. the Earl of Shrewsbu∣ries case is good Law, but it is impossible to plead Vi & armis in this case, for the unity was in H. 8. and the wrong is supposed after the severance, and it is supposed to be done by the Owner of the Land, and a man cannot do a thing upon his own Land Vi & armis.

4. Because it is not alledged to be an ancient Rectory: I conceive it need not, because the Law presumes all Rectories to be ancient, the Patronages wherof are gained Ratione fundi, fundationis, vel dotationis.

5. Because he doth not say, that Pertinet ad Rectoriam: But he hath said a thing which amounts to as much; for it is said, that in the Rectory was a certain Curtilage in which there is a Watering-pond, and the Curtilage Page  172 is part of the house, and therfore he need not say, that it belongs to the house. For the Bar I conceive that it is good for the Mannor: A man makes a Fe∣offment of Land, the Owner of the Land being present at the same time, no∣thing works by the Livery for the reason before given by Jones. For the matter of Law he conceived that the unity of possession doth not extinguish the Water-course, and that for two reasons.

• 1. For the necessity of the thing.
• 2. From the nature of the thing being a Water-course, which is a thing running.

1 For the necessity, and this is the reason that common appendant by the unity of possession shall not be extinguished, for it is appendant to ancient Land-hide, and gain arable Land, which is necessary for the preservation of the Common-wealth; and as in this case there is a necessity of bread, so in our case there is a necessity of water: And for the case of a way Distinguendum est, for if it be a way which is only for easement it is extinguished by unity of possession, but if it be a way of necessity, as a way to Market or Church, there it is not extinguished by unity of possession, and accordingly was the opinion of Popham chief Iustice, which I take for good Law, and the case of 11 H. 7. 25. is a notable case, and there a reason is given why a Gutter is not extinguished by unity of possession, because it is matter of necessity.

2. From the nature of water, which naturally descends, it is alwais cur∣rent, Et aut invenit aut facit viam, and shall such a thing be extinguished which hath its being from the Creation. Co. lib. 4. Luttrels case, a Mill is a necessary thing, and if I purchase the Land upon which the streams goes which runs to this Mill, and afterwards I alien the Mill, the Water-course remains. So if a man hath a Dye-house, and there is a water running to it, and afterwards he purchase the Land upon which the water is current and sell it, yet he shall have the Water-course, Dyer: Dame Browns case, and the principall case in Luttrels case, a Fulling-mill made a Water-mill, this shall not alter the nature of the Mill, but yet it remains a Mill, so the water hath its course notwithstanding the unity, and he concluded for the Plain∣tiff.

Crew chief Iustice, I agree that the Declaration is good, and also that the Bar is good for the manner, but for the matter in Law, I conceive that it is not good. In our Law every case hath its stand or fall from a particu∣lar reason or circumstance: For a Warren, and Tithes they are not extin∣guished by unity, because they are things collaterall to the Land: And for the case of 13 Eliz. in Dyer, of an Inclosure; I conceive that by the unity the Inclosure is destroyed, for the Prescription was interrupted, and in Day and Drakes case, 3 Jac. in this Court it was adjudged that in the same case the Prescription was gone; It may be resembled to the case of Homage Ancestrell 57 E. 3. Fitzherbert Nusans: And for our case it is not like to the cases of Common, or a Way, because the Water-course is a thing naturall and therfore by unity it shal not be discharged; also there is a linement out of which every man shall have a benefit, and therfore he concluded that Iudg∣ment should be given for the Plaintiff; And Iudgment was commanded to be entred for the Plaintiff.

The same Term in the same Court. Welden versus Vesey.

AN action of Debt was brought by Welden Sheriff of the City of Coven∣try against Vesey, upon the Statute of 29 Eliz. cap. 4. and declares, that it is provided by this Statute that no Sheriff or Minister, &c. shall take for an execution, if the summ doth not exceed 100 l. but 12 d. for every 20 s. and being above the summ of 100 l. 6 d. for every 20 s. and shews that wher∣as the said Vesey had judgment against one in an action of Debt, that the Plaintiff by virtue of a Capias directed to him, took the body of the said per∣son condemned, and that it was delivered to the Plaintiff, and that he for levying of the money had brought this action.

The Defendant by way of Bar saith, that it is provided by this act that it shall not extend to Executions in Towns Corporate, and that this was with∣in Coventry, and so demurred upon the Declaration.

And Whitwick argued for the Plaintiff; two things are considerable in this case.

1. Whether where the summ exceeds 100 l. the Sheriff shall have 12 d. for every 20 s. of the 100 l. and 6 d. for that which is over, or 6 d. only for every 20 s. for all the summ.

2. Whether this Statute extend to Iudgments in Towns Corporate. For the first, the letter of the Statute is cleer that he shall have 12 d. for the first 100 l. and 6 d. for the residue, for the Statute is, that if it be above 100 l. * that he shall have but 6 d. therfore if it be under a 100 l. he shall have 12 d. for every 20 s. And the meaning of the Statute is plain also, for otherwise the Sheriff shall have a lesser Fee where it is above a 100 l. (as where it is a 199 l.) then he shall have for 100 l. but this was not the intent of the Sta∣tute, but the greater the Execution, the greater the Fee: It was adjudg∣ed in one Gores case, 10 Jac. that an action of Debt lies upon this Law, Pasch. 14 Jac. Rot. 351. Brole and Tumblerson Sheriffs of the City of London, brought Dabt against Nathanael Michell for execution of 400 l. for 12 l. 10 s. scil. 5 l. for the first 100 l. and 6 d. for every 20 1. after: But I confesse that the principall question there was, whether an action of Debt lies for the money, and it was resolved that it did, and Iudgment was given for the Plaintiff.

2. To the Proviso, that this doth not extend to Fees in a Town Corpo∣rate, whether this extend to executions which go out of Iudgments in this Court, or in the Common Pleas into Towns Corporate. The Statute shews that before that time the Sheriff had taken great Fees, which the Parliament considering, restrained them to a certainty; The words of the Proviso are generall: Provided that this Act shall not extend to any Fees to be taken for any Execution within any City or Town Corporate, and al∣though the words be generall, yet the exposition shall be according to reason, as it is said in Fulmerston and Stewards case in Plow. Expesition, shal be made against the words, if the words be against reason, 5 H. 7. 7 38 H. 3. Broo. Live∣ry 6. The King shall have primer Seisen of all Lands of his Tenant which he holds of him in Capite, but if one holds of the King in Capite, in Socage, he shall pay no primer Seisen to the King, and this Statute shall have this intendment, that this Proviso shall extend only to Executions upon Iudg∣ments given in Cities and Towns Corporate, and not where Iudgment is given in this Court, or the Common Pleas, and Executions are only there, and this seems to be a reasonable construction; Executions in Towns corpo∣rate, to wit, Executions upon Iudgments given in Towns corporate. If the Sheriff make execution at the Town side he shal have for his fees as the Sta∣tute limits, & therfore he shall have it if within the Town, & if this should not Page  174 be so, this mischief would ensue, that presently when an Execution issues out against a man, he wil shelter himself in a Town corporate, as in a Sanctuary, and the Sheriff will not do execution there, because he shall not have so great a Fee for doing it as if it were in another place, and so execution (which is the life of the Law) shall be undone.

Jermy for the Defendant; and first, if the summ exceed a 100 l. he shall have but 6 d. for every 20 s. of all. It is considerable that at Common Law the Sheriff ought to do execution freely without any recompence. In Both and Sadlers case lately in this place, an action upon the case was brought by a Bailiff, that wheras a Warrant for taking such a man was directed to him, the Defendant promised him 40 s. for his pains, he took the man and brought an action for the 40 s. and it was agreed that he should not have it. The Law abhors that great Fees shall be given for executions, Co. lib. 3. 7. in Heydons case: In the exposition of the Statute three things are considerable.

• 1. What the Common Law was before the making of it.
• 2. What the mischief was at the Common Law.
• 3. The remedy which the Statute gives.
• 4. The true reason of the remedy. The Common Law was, that the Sheriff shall not take any Fee for execution, Ergo now he shall take as small a fee as may be, because this is nighest to the common Law: And the first words are declarative what Fees he shall take; and the subsequent words affirmative what Fees they may now take, to wit, where the summ doth not exceed a 100 l. 12 d. for every 20 s. 14 Jac. It was objected, that the Sheriff is not bound to do execution before he hath his Fee, and then it was resolved that he might have an action of Debt, and so it seems that the party is not bound to give levying money before that the execution be done, and otherwise, the party Plaintiff may be at great mischief if the other be not taken: And it hath been agreed lately in the Common Pleas, that if the summ exceed 100l. he sh••l have but 6 d. for every 20 s. And as to the second point, he endea∣voured to maintain that the Proviso extends to executions in Towns corpo∣rate, although the Iudgments upon which the executions issue are given in o∣ther Courts, and this is the constant practise of the City of London.

The Iudges delivered their opinion, with a protestation, that they might recall them, if afterwards better reason appeared.

Crew chief Iustice was of opinion that he shall have but 6 d. for every 20 s. if the summ exceed 100 l. and the summ shall not be divided, but if the summ be under a 100 l. then 12 d. for every 20 s. and this is the reason of the Law.

And for the second point, although the Iudgment be given in the superi∣or Court, yet if the Sheriff does execution there, he shall have his levying money, and this is within the intention of the Proviso.

Doderidge, Iustice the first question is upon the exposition of the Statute, the second upon the Proviso; For the first two expositions may be made as hath been remembred, then we will enquire of the interpretation: This Statute was made for the benefit of Sheriffs, that as they are in hazard by taking of men, because many times resistance was made. 2. When the Sheriff had taken a man, and in the carriage of him to prison he had esca∣ped, an action upon the case did lye against the Sheriff, and when he had him in prison, he ought to have great care in keeping of him, for an action lies against him if he escape: and therfore although on the one side there was a great mischief by reason of great Fees that the Sheriff took for execu∣tion; so on the other side, the Law tendred Sheriffs in respect of the hazard ••d care which they had of men in execution, and therfore the Law in an in∣differency provides that the Sheriff shall have a good Fee for execution, and also it provides against his extortion, and so it is indifferent between the op∣pression of the Sheriff and covetousnesse, and we are not to judge according Page  175 to the intent, but according to the equity of the Law, for equality to prevent the covetousnesse of Sheriffs and the oppression of the people; then in this case if he shall have but 6 d. for every 20 s. for 200 l. he shall have no more for execution of 200 l. then if it were a 100 l. But I think this was not the in∣tent of the Act.

For the second point, I take it that this Statute did not extend to Suits within Towns corporate, and executions upon them, for they are not at any great trouble for doing of execution within their Towns, nor hazard: But if a Sheriff does execution in a Town corporate, then he shall have according to the Statute, for it may be that the Prison is far distant. And I upon the suddain conceive that this Proviso extends only to Towns corporate, which are Counties.

Jones Iustice, three questions have been made upon this Statute.

1. For the nature of the action which the Sheriff is to have upon this Statute, and for that it hath been many times resolved that he shall have an action of Debt, for when a remedy is given by a Statute, and no action is given by the same Statute wherby the penalty shall be recovered, there he shall have an action of Debt.

2. Who shall have the Fee when the Sheriff makes a Warrant to a Bayliff of a liberty, the Bayliff of the liberty or the Sheriff.

The second branch of the second question is, tha• when one Sheriff makes the extent, and another Sheriff makes the Liberate, who shall have the Fee?

3. The third question hath been in debate in the Common Pleas, and there was some opinion that if the summ be above a 100 l. and under 200 l. that the Sheriff shall have 12 d. for every 20 s. of the first 100 l. for other∣wise the Sheriff shall have a lesse for execution of 199 l. then he shall have for 100 l. But if it be above 200 l. he shall have 6 d. ab initio.

My opinion on the suddain is, that for every 20 s. of the first 100 l. he shall have 12 d. and for the residue he shall have 6 d. for every 20 s. and the other shall not be altered.

And for the second point, I hold that this Proviso extends only to Iudg∣ments originally commenced in Towns corporate, and not to executions upon Iudgments given in superior Courts, for then the Sheriff does execution as an Officer to these Courts: And the Sheriff of the County is at as great pains, as if he were Sheriff of another County, and shall not be bound by the Proviso.

Whitlock Iustice was for the Plaintiff in both the points, to wit, that the Sheriff shall have 1 s. for every 20 s. of the first 100 l. and 6 d. for every 20 s. of the residue. And by him the Sheriff may refuse to do execution untill the levying money be paid to him.

And for the second point, the Sheriff of the County of the City is not with∣in the Proviso, but shall have the Fees by the Statute provided, as well as the Sheriff of the County shall have, for the words are generall, and the exception goes to all Towns corporate and Cities, but doth not say Cities which are Counties, and therfore this Sheriff is within the benefit of this Law: And in Michaelmas Term next following the case was moved again by Whitlock for the Plaintiff, and he said, that he would not speak to the se∣cond point, because the Court had delivered their opinion, that the Proviso in the Statute, that this shall not extend to executions in Towns corporate, it is to be intended of executions in Towns corporate upon Iudgments there given: But for executions there upon Iudgments given in this Court, or any other superior Court, the Sheriff shall have such Fees as are limited by this Statute. And the Court said to him that were agreed of it.

And as for the first point, he conceived that the Sheriff shall have 12 d. for levying of every 20 s. of the first 100 l. and 6 d. of every pound more, and Page  176 this appears cleerly by the Letter of the Statute: And the case in Mich. 19 Jac. in C. B. between Empson and Bathirst doth not make against it, for the resolution of the said case was upon other matters: The case being, a man was bound in a Statute of 120 l. the Sheriff extends, and before the Libera∣te takes double Bond of the party for payment of his Fees, and afterwards brought Debt against the party, who pleads the said matter in Bar, and the Statute of 23 H. 6. cap. 10. And in the case were three points.

1. Whether the Sheriff may take a double Bond for the payment of his Fees, and it was resolved that the Bond was void, for the Sheriff might have Debt upon the Statute for his Fees.

2. Whether the Sheriff shall have his Fees before the Liberate, and re∣solved that he shall not.

3. Was this very question, and two Iustices were against one, that where the summ exceed 100 l. he shall have but 6 d. for levying of every 20 s, of the first 100 l. But the Iudgment was given upon the other points. All the Court seemed to be of opinion that he shall have 12 d. for every 20 s. of the first 100 l. and 6 d. for every 20 s. of the residue.

The same Term in the same Court. Awdeley versus Joye.

AWdeley being put out of the Town-Clarkship of Bedford, moved for a Writ of Restitution to the place, and it seemed to Doderidge Iustice that the Iustices of this Court have power to grant restitution in this case, and he cited a case in 16 Eliz. in this Court, where restitution was granted in such a case, and 43 Eliz. by warrant of Fennor Iustice, a Writ of Resti∣tution was granted.

One who was Town Clark of Boston for life, was made Alder-man and put out of his Clarkship, and was restored. This Court hath power not only in judiciall things, but also in some things which are extrajudicial. The * Major and Commonalty of Coventry displaced one of the Alder-men, and he was restored; And this thing is peculiar to this Court, and is one of the flowers of it.

Crew chief Iustice, doubted whether restitution could be made to Awdeley, or no, because the Office was granted to him in Reversion, when it was ex∣pectant upon an Estate for life, and when the Officer for life died, Joye was elected, and he said, that all the said Writs remembred are, where he had once possession.

Whitlock Iustice, in the case of one Constable, 10 Eliz. It was resolved that this Court hath power to grant restitution in such a case, where he was put out of his Office: And by Jones Iustice, this Court hath power to grant Restitution, and he remembred, one Mittlecots case: And Noy being of Counsell with Awdeley said, that there are Presidents to prove this in the times of E. 2. E. 3. and H. 6. And it was said by the Iustices that they are the chief Conservators of the Peace within the Realm, and therfore have power for the preservation of the Peace in such factious Towns to grant restitution.

The same Term in the same Court. Dabborne versus Martin.

THomas Dabborne brought an action upon the case against Martin for * these words, Thou art a Knave of Record, and a forgering Knave: And it was argued by Jermy for the Defendant, that the words were not actionable, for a Knave signifies a Male-child, so that it is no more then to say, Thou art a Male-child of Record: And for forgering Knave, the action will not lye, for Forger is a generall word, and may be applied to divers Trades, as for∣gering Smith, forgering Goldsmith; and when he called him forgering Knave; there was no communication of his Office, 18 Jac. Sir William Brunskill brought an action upon the case, and declared that he was well dis∣cended, and was a Gentleman of the Chamber to Prince Henry, and he brought an action for these words, Thou art a Cosener, and livest by cosen∣age, and adjudged not actionable, Co. lib. 4. 16. Action upon the case doth not lye for these words, Thou art a corrupt man, if there were no communi∣cation touching his Profession; And it was argued for the Plaintiff that the words were actionable, for it lyeth for these words, Thou art an Out-putte∣rer, if they were spoken in Northumberland where they are understood, but not here, because they have no signification: And the words here are speciall and shall have reference to his Office, and shall have such an interpretation as is now used, and now Knave hath no signification of Male-child.

Jones Iustice said, that if one saith, that such a one is a corrupt Iudge, a∣ction lies, or if one saith of a Clark, that he is a forging Clark, action lies: And in 28 Eliz. the opinion of Iustice Fennor was, that for these words (Thou hast forged my Fathers Will) action lies.

Crew said, that he did not understand the word (Forgering) but for calling one Knave of Record, action lies. And Doderidge Iustice said, that he ne∣ver gave way to these actions upon the case for words: And no opinion was given this day.

The same Term in the same Court. Goodwin versus Willoughby.

GOodwin brought an action upon the case against Joane Willoughby wife of Thomas Willoughby, and upon non Assumpsit pleaded, it being found for the Plaintiff, it was moved in Arrest of Iudgment. 1. That the Plain∣tiff shews that Thomas Willoughby was indebted upon account, and doth not shew that Joane Willoughby is Executrix or Administratrix, and yet that she promised to pay, wheras in truth she hath no cause to pay, for there is no consideration, and so Nudum pactum.

Jermy for the Plaintiff: for the first, because it doth not appear for what cause he accounted; I answer, that this is but a meer conveyance: And for the second, that she does not suppose that the Feme is executrix, &c. But here is a good consideration, which is, that she shall not sue or molest, and that he gave day for payment, this is a sufficient consideration. But Stone of counsell with the Defendant said, that the first is the ground of the action, and therfore he ought to shew for what he accounted.

Page  178 Crew chief Iustice, two exceptions have been taken, 1. For the alledg∣ing the manner of the account, which I conceive is good enough, and he need not shew the cause of the account: And as to the second, because it doth not appear that she is Executrix, or Administratrix, and so no consideration, and so no Assumpsit: But here she assumes to be Debtor and makes a pro∣mise to pay, which is an acknowledgment of the Debt by inference, and therfore he conceived that the Assumpsit was good.

Doderidge Iustice, for the first it is good enough, yet Cum indebitatus exi∣stit is no good Assumpsit, but here he shows a speciall way of Debt, and it would be long and tedious to describe his account. For the second there is no cause of action, because it doth not appear that she is Executrix or Admini∣stratrix, or Executrix of her own wrong.

If I say to one do not trouble me, and I will give you so much, this is not actionable, for there ought to be a lawfull ground, and for this cause the De∣claration * is void, for it is only to avoid molestation: Give me time, &c. this is no good Assumpsit, for forbearance is no ground of action where he hath no cause to have Debt.

Jones Iustice agreed in the first with them, because a generall action upon the case sufficeth, and in truth it is but an inducement to the action; but for the other part he doubted, and he cited one Withypools case, an Infant with∣in age, promised to pay certain money, he makes an Executor and dies with∣in age; the Executor saith to him to whom the promise is made, forbear and I will pay you, and there an action upon the case did lye against the Execu∣tor upon this promise, and yet it was a void Contract, but there was colour of action, forbear till such a time, now the other hath lost the advantage of his Suit: But he gave no opinion.

Crew, It is a violent presumption that he is indebted: But by Doderidge here is no colour to charge her, but only by inference that she is Executrix.

If a stranger saith, forbear such a Debt of J. S. and I will pay it, it is a good consideration for the losse to the Plaintiff, and in this case it appears not that there is any cause, and Broom Secondary said, that Withypools case before cited was reversed in the Exchequer Chamber.

Jones, If an Infant makes a promise, it is void, and he may plead non As∣sumpsit, which Doderidge did not deny: But upon his Obligation he cannot plead Non est factum, for he said that he shall be bound by his hands, but not by his mouth.

The same Term in the same Court. Drope versus Theyar.

IN Debt by Drope against Theyar an Inne-keeper upon Issue joyned, and a Verdict for the Plaintiff, Bolstred moved in Arrest of judgment for the Defendant, and the matter was that one Rowly who was servant to Drope, lodged in the White Heart at S. Giles, and there had certain Goods of his Masters which were stoln from him in the night, and Drope the Master brought an action therupon, and it was moved by Bolstred that the Plaintiff was without remedy.

1. Because it was in an Inne in London, for the Register 105. is Quan∣do quis depraedatus euns per patriam, which (as he said) could not be ex∣tended to an Inne in London.

2. It ought to be an Inne, as Inne-keeper.

Page  179 3. He ought to be as a Guest lodging, and this appeareth in Culeys case, in 5 Jac. in Celly and Clarks case (which was entred Pasch. 4. Jac. Rot. 254. It was adjudged that where the Guest give his Goods to his Host to deliver to him three daies after, and the goods are lost, that an action is not main∣tainable against the Inne-keeper for them, and this was in an Inne in Ux∣bridge: And in one Sands case, where the Guest came in the morning, and his Goods were taken before night, he shall have an action against the Inne-keeper.

4. The Goods ought to be the Goods of the party who lodgeth there, for the words are Ita quod hospitibus damna non eveniunt, and here the Master who brought the action was not Guest: But admit the Master shall have the action, yet he ought to alledge a custom that the Master shall have the a∣ction for the Goods taken from his Servant, Trin. 17 Jac. Rot. 1535. Bidle, and the Master brought an action for Goods taken from the Servant, and there it was resolved that he ought to conclude that Pro defectu, &c. and apply the custom to him being Master: Sec Co. Book of Entries 345. And that a custom, that for other mens Goods in the custody of Guests, the Ow∣ner shall have an action against the Inne-keeper if they be stollen.

Ob. This is the Common Law, and therfore ought not to be alledged.

Answ. Where a man takes upon him to shew a custom, he ought to shew it precisely, he cited Heydons case, Co. lib. 3. 28 H. 8. Dyer 38. And it was said for the Plaintiff that Goods are in the possession of the Master which are in the possession of his Servant, and so here the Master might have had action well enough, 8 E. 4. my Servant makes a Contract, or ••ies Goods to my use, I am liable and it is my act.

By the Court an Inne in London is an Inne, and if a Guest be robbed in such an Inne, he shall have remedy as if he were Enns per patriam: But the cheife point was, whether the master shall have the action in the case where the Servant lost the goods, and by Jones Justice in 26 Eliz. in C. B. upon the Statute of Hue and Cry it was resolved that if the Servant be rob∣bed the Master may have the Action, and so by him shall it be in the case Dode∣ridge Justice, the Servant may have the Action also: If the Servant be robbed of wares, the Master or Servant may have an appeale 8. E. 2. Tit. Robbery; two joynt Merchants, one is Robbed both shall joyne in the Action and may also joyn in the appeal. But it may be objected (as Whitlock Iustice did) that the Master is not Hospitans, I say this is to no purpose; A man put his Horse in the Stable, and before he goes to bed or lodging, the Horse is gone, he shall have an action although he did not lodge there. For the word (transeuntes) although he be at the end of his Iourney, yet it is within the custom, and he shall have action. And by Crew, if I send cloath to a Tay∣lor, and it is stoln from him, the Taylor shall have an action of trespasse, or the Owner.

Jones, the case of Hue and Cry is a more stronger case then this is, for there the Servant ought to swear that he is robbed, and yet the Master shall have an action: And for the word (transeuntes) all agreed that although he be at the end of his journey, or at an Inne in London, yet he is within the reme∣dy of this Law: And if a man stay in an Inne a moneth, or a quarter of a year, shall not he have an action if he lose his Goods?

Doderidge agreed, that if a man be boarded in an Inne, and his Goods are stoln, he shall not have an action upon this Law. And notwithstanding this objection, judgment was given for the Plaintiff upon the Verdict.

Trin. Term, 2 Car. In the Kings Bench. Sir William Buttons Case.

SIr William Button a Iustice of Peace brought an action for these words; Sir William Buttons men have stoln Sheep, and he spake to me that I should not prosecute them, and it seems that the action did not lye, because * Sir William did not aver that he is a Iustice of Peace, and it doth not appear in what County the said Felony was done, 36 Eliz. One brought an action for these words; A. is a cosening fellow, and the greatest Pickpurse in Nor∣thamptonshire, and there is not a Purse picked within 40. miles of Northamp∣ton but he hath a hand in it, And the action did not lye because he did not a∣ver that there were Purses cut.

Jones Iustice put this case, One saith, that A. is as strong a Thief as any is in Warwick Gaol, he ought to aver that there is a Theef in Warwick Gaol, or otherwise they are not actionable.

Doderidge put this case, There is a nest of Theeves at Dale, and Sir Iohn Bridges is the maintainer of them, these are actionable, because it implies maintenance.

Note that it appeared upon a motion which the Attorney-generall made a∣gainst one Lane (who is a Recusant in Northamptonshire) that a Lease for years made by a Recusant of his own Lands after conviction, if it be Bona fide will bind the King, but if it be upon fraud and covin, then it will not; and Whitlock said, that it is a common course for Recusants to make Leases after their Indictment and before convi∣ction.

The same Term in the same Court. The Case of the Major, Bayliffs, and Jurates of Maidstone.

IN a Quo warranto depending against the Mayor, Bayliffs, and Iurates of Maidstone in Kent, Serjeant Finch of Counsell with them of Maidstone, put the case briefly in effect thus: In the Quo warranto against them, it was ordered by the Court that they should have day to plead untill afornight after Trinity Term, and the truth was that they had not pleaded according∣ly, wherupon Iudgment was entred in the Roll, and the Writ of Seisin a∣warded, and execution therupon; and afterwards by a private order in the Vacation by the chief Iustice and Iustice Jones, it was ordered that the Iudgment should be staid, and the truth was, that it was never entred a∣mongst the Rules of the Court, and therfore he prayed that the Iudgment might not be filed, but that the last order might be observed, and that they might amend their Plea.

Hendon Serjeant on the other side said, that it could not be, for by the Iudgment given the King was intitled to have the profits of Franchises which he shal not lose; & he cited the case which is in F. N. B. 21. Error in B. R. cannot be reversed the same Term before the same Iustices without a Writ of Error, but otherwise it is in C. B. and he said, that the same course was observed in Eyre, there can be no pleading in Eyre after the Eyre determi∣ned, and upon this he cited the case of 15 E. 4. 7. before the Iustices in Eyre, if the Defendant does not come the Franchises shall be seised into the Kings Page  181 hands, nomine destinctionis, and if the party who ought the Franchise doth not come during the Eyre in the same County, he shall forfeit his Franchise for ever, so here after Iudgement entred, there can be no plea per que &c. Finch we have order from the Court for stay of Iudgement, & here no perfect Iudgement was given: and this is not without president, and he cited one Chamberlains Case, where the Iudgement was nigh to perfection &c. but he did not put the Case Creve ch: Justice: in this case there was the assent of the Attorney generall, who prosecuted the Quo Warranto, and so the cases put by Hendon to no purpose, Jones upon F. N. B. 21. J. took this difference, true it is that the Kings Bench cannot reverse a Iudgement although it be in the same term without a Writ of Error, but this is where error lies in * the same cause in the same Court, as upon outlawry, but if no error lies in this Court for the same cause, but in Parliament▪ then the Kings Bench may reverse the Iudgement without Writ of Error being the same term. And the Iudgement here was ever of Record, for the Roll untill it be fixed a∣mongst other Rolls is no Record.

And for the Case of 15. E. 4. 7. it is not like our case in reason, for when * the Eyre is determined the power of the Iustices in Eyre is also determined, but it is not so here, for the Iustices have power from Term to Term; But Noy argued further for the King, that it is a Iudgement of another Term, and Execution awarded upon it, and said that it is without president that now it should be avoyded, and upon the awarding of execution, the King un∣der his seal hath averred that judgement is given which cannot be falsified, and for Chamberlains Case he said that there was an assent in it. Doderidge, the Question which now is moved, is but this, whether a Iudgement entered in a private Roll (as a memorandum), and afterwards there is an order that the Iudgement shall not be filed, if the Iudgement upon this shall be stayd: and speaks to it, and by him the Case of 15. E. 4. 7. is nothing to this purpose, for Iustices in Eyre were Iustices by commission, and they had not the custo∣dy of their Records, and so it differs from this case.

And Jones Justice (which was not denyed) if a Iudgement be pronounced here and be not entered, the Iudges may alter it the next Term. It was said by Noy in this case that all Franchises in England are against common Right, and execution of Iustice, and for the present purpose, he cited one Sir John Wells Case, where in a Quo Warranto the Defendant had day to plead, or otherwise that judgement should be entered to seise, and he failed to plead at the day, and the Iudgement was not filed, and yet he could not be relieved: But it was sayd by some of the Iustices, that this was a case of great extremity. But by Hendon it was affirmed in the Exchequer in one Sandersons Case, and in the principall case the matter was adjourned for a fortnight, and ordered that the plea should be accorded.

Mich. Term 2. Car. in the Kings Bench. Sharp versus Rust.

IN an Action upon the Case, upon an Assumpsit between Sharp, Plaintiff, and Walter Rust Defendant, upon non-Assumpsit pleaded, it was found for the Plaintiff, and it was moved in arrest of judgement upon these words in the Declaration, the Defendant (being Father to the Plaintiffs Wife, for whom the Apparrel was bought) said to the Plaintiff, deliver the Apparrel to my Daughter, and I will pay for them, and saith not to whom the pay∣ment Page  182 shall be made: And it was argued by Woobrich of Grayes-Inne that this is no sufficient cause to stay the Iudgement, for by necessary implication and reference of the words precedent, the certainty of the pers on appeareth to whom the payment ought to be made. And he observed that in our Law the time, the estate, the thing, and the person not being sufficiently expressed, * yet by necessary coherence and relation to matter precedent, they are some∣times made certain enough: 1. For the time, Perkins. P. 496. puts the Rule, if a condition hath relation to an act precedent, and no time is limited when it shall be done, yet if ought to be done when the act precedent is done, and therefore if I. S. be bound to me in 20 l. upon condition that if I enfeoff him of black acre, that then he wil pay me 10 l. &c. in this case presently when I have enfeoffed the obligor of black acre he ought to pay the 10 l. notwith∣standing there be no time limited when it should be payd. 2. For the thing being put incertainly, yet the communication precedent makes this certain, 30. H. 8. Dyer 42. in the Case of the Executors of Greenliffe, where it is a∣greed, that albeit it is not shown what thing is granted, yet it shall be the Land of which the communication was. 3. For the Estate, although it be incertain, yet sometimes it is made certain by the matter precedent, as in the Case Co. lib. 8. A Stewardship was granted for life, and afterwards an Annuity was granted for the exercise of that Office, without declaring what Estate he should have in that Annuity, and resolved that he should have the Annuity for life, because he had the Office for life. 4. For the person, the consideration sometimes ascertains the person, and therefore if land he given to one by Deed, habendum sibi una cum filia donatoris, in frankmariage, this shall enure to both, because the Feme is Causa donationis, and by in∣tendment of law the Land and the feme shal be given together to the man for the advancement of the Feme, as it is Mich. 2. & 3. Ph. & Mary. Dyer 126. a 4. E. 3. 4. Plow. Com. 158. enfeoff him & another, and bind him and his heirs to warrant, & doth not say to whom he shall warrant, yet the Feoffee and his heirs shall have advantage of this warranty, for it cannot have any other in∣tendment: 6. E. 2. Voucher. 258. 22. E. 4. 16. & Kelleway 108. & Co. lib. 8. Whitlocks Case, In a Lease for years reserving rent, it is the surest way to make the reservation to no person in certain, but to leave it to the general intendment of the Law, 15. H. 7. A man deviseth that his Land shall be sold for the payment of his debts, and doth not say by whom, they shall be sold by his Executors, because they are lyable for the payment of his debts, but if one devise that his land shall be sold, & saith not for the payment of his debts, the devise is void, because the Law doth not intend in this case to make the sale 40 E. 3. 5. 4. E. 3. Fitzherbert Obligation 16. Nota, if a man be bound in debt or Covenant by writing, and puts such a clause in the writing. Et ad majorem hujus rei securitatem invenit fidei jussores quorum unusquisque in tot. & in solido se obligavit, that although none speak there but the princi∣pall in the writing, if the others put to their seals, they accept that which the principal spake, & so become principal: 2. E 4. 20. and here in our Case it appeareth that the Deed was so, & therefore it is reason that the Declara∣tion should be so, for there cannot be a material difference between the Decla∣ration & the deed, & especially being upon an agreement which is to be ruled according to the intention of the parties, as it is in Plow: Com. 140. a. In our Law if any parties be agreed upon a thing, and words are expressed or written to make the agreement, although they be not apt words, yet if they have substance in them tending to the effect intended, the Law shall take * them of the same substance as words usuall, for the Law regards the inten∣tion of the parties, and here the intent appeareth that the assumption shall be m•de to the Plaintiff, although there want expresse words, and therefore he prayed Iudgement for the Plaintiff. And afterwards the same Term Iudgement was given for the Plaintiff.

The same Term in the same Court. Beven versus Cowling.

IN an Action upon the Case Littleton mooved in arrest of Iudgment for the Defendant, wherein the Case was this, the Defendant assumed that if the Defendant would defer the payment of a bond, in which one A. was bound to him, and would not implead him upon it, then he promised to pay it, and he doth not say, that he deferred the payment untill such a day, and therefore this is no valuable consideration, so that the action doth not lye, for notwith∣standing * this he may implead him presently, Mich▪ 12. Jac Kebles Case, A man promiseth to pay so much in consideration of a Lease at Will, and it was holden no good consideration, for by the same breath that he creates it, he may defeat it, & Pasch. 8. Jac. Austins Case: A man promise that in conside∣ration he would forbear another, he would pay it, and no time was limited, and therefore it was holden no good consideration. Trin. 38. Eliz. Rot. 523. A man promise quod non implacitabit, and avers quod non implacitavit, and because of the uncertainty it was holden no valuable consideration.

Doderidge Justice: If there be no consideration at the time, or no cause of Action, the forbearance afterwards will not make it actionable, and he said that it had been adjudged in this Court, that a consideration to forbear for a little time is not good, but by some to forbear for a reasonable time is good. But in the principall Case upon the hearing of the Declaration read, it ap∣peared, that it was, that he should never implead him upon the said obligation, so that if the Plaintiff brings an Action upon the obligation, the Defendant here may have an Action upon the Case against him. Also it was non impla∣citabit, and this shall be taken indefinitely, quod nunquam implacitabit, and therefore the Iudgement was affirmed, for otherwise the Plaintiff shall both take advantage of this promise and of the bond also, and here he hath in a manner forsaken the benefit of his bond, and hath betaken himselfe to the be∣nefit of this Assumpsit.

By Jones and Whitlock Iustices, if A. be bound to me, and I enter into bond to him, that I will not sue this Obligation, I cannot sue him upon the first Obligation, without forfeiture of my bond: and by Doderidge, if an Obligation be forfeited, and I say to the Obliger, do not sue the Obligor, or do not implead him, an Action upon the case lies against me.

The same Term in the same Court. Arnold versus Dichton.

IN an Action upon the Case, and Non-Assumpsit pleaded, it was found for the Plaintiff, and Noy mooved in arrest of Iudgement, that there was no consideration to maintain this Action, the Case being thus: Arnold having married the Daughter of the Defendents Testator, the Testator promised to give him 40 l. and meat •nd drink for a year, and a Featherbed and Bol∣ster, and afterwards the Testator in consideration that the Plaintiff would * forbear to sue him all his life for it, promised that he should have as good a portion at his death as any of his children, and the Plaintiff declares, that Page  184 he gave to one Tho. P. one of his Sons 200 l. and that he left him at the time of his death, but 30 l. but when he gave to Tho. P. the 200 l. appeares not, peradventure it might be in his life time, and this promise doth not extend to that which he had given before, as if a man be bound to keep a Goale, and that no prisoner shall escape, this only extends to a future keeping, and future escapes, and not to other escapes which were before.

True it is, that sometimes the Law will alter the sense, as in the Case of 32. H. 6. where a man is bound that his Feoffees &c. And at another day Doderidge said, that the first promise was but an inducement to the second, and the Defendant hath pleaded Non Assumpsit to the last promise, and then comes the Plaintiff and shews that he gave to such a one 200 l. and doth not shew when this was given, and this may be before the promise, and there∣fore I conceive the Declaration is not good: Jones agreed that the Decla∣ration is not good, for admit that in this case he had given to all his children but one, great portions before the said promise, and had given a small portion to one after the promise, the Plaintiff now shall have but according to the said promise, and it is alledged here, that he gave to such a one 200 l. which may be before the promise, and therefore the breach not well laid.

Whitlock contra: and that the Plaintiff shall have according to the best gift in this case, whether it were before or after the promise, and that upon the intention of the promise; for the intention is, that the Plaintiff should have as good a marriage or portion with his Daughter, as any other of his children should have: But by Doderidge this construction cannot be made without offering violence to the words, for then daret should be for dedisset, and for any thing which appeareth he had a portion before, and this was but a superaddition.

Jones put this case: I am bound to enfeoff J. S. of so much Land as I will enfeoff J. D. this extends not to a Feoffment which I have made to J. D. be∣fore, but only to a Feoffment which I shall make to him afterwards, which was not denied by Whitlock, and it was adjourned.

The same Term, in the same Court. Barker versus Ringrose.

BArker brought an Action upon the Case against Ringrose, and declared, that whereas he was of good fame, and exercised the Trade of a Wool-winder, the Defendant spake these scandalous words of him, that he was a * Bankrupt Rogue: and it was moved in arrest of Iudgement, that those words were not actionable; for the words themselves are not actionable, but as they concern an Office or Trade &c. and it appeareth by the Statute of 27. E. 3, that a Wool-winder is not any Trade, but is but in the nature of a Porter, so that the Plaintiff is not defamed in his function, because he hath not any: also it is not averred that he was a Wool-winder at the time of the words speaking.

Jones Justice: If one saith of a Wool-winder, that he is a false Wool-winder, action upon the Case lieth; and it was demanded by the Court, * what a Wool-winder was? and it was answered that in the Countrey he is taken to be a Wool-winder that makes up the fleece, and takes the dirt out of it: and a Wool-winder in London opens the fleeces, and makes them more curiously up, and in London they belong to the Mayn of the staple. Page  185 Doderidge, If one saith of a Sher-man, that he is a Bankrupt, Action lyes, and so it hath been adjudged of a Shoo-maker: and note that if one saith of any man (who by his Trade may become a Bankrupt within the * Statutes) that he is a Bankrupt, an Action lies, as of a Taylor, Fuller, &c. And the Court seemed to incline, that in this case (being spoken of a Wool-winder in London) the Action lies: But Mich. 3. Car. the Case being moved again, the Court was of opinion, that the Action could not lye, and would not give Iudgement for the Plaintiff.

The same Term in the same Court.

NOta by Doderidge and Jones, Iustices, that upon the principall Iudge∣ment reversed, the outlawry is also Ipso facto reversed: Also if an * outlawry be awarded, if it be not per Judicium Coronator (unlesse it be in London) the outlawry is voyd.

It was demanded by the Iustices, when the outlawry and Iudgement are affirmed, how the entry is? And it was answered by Broome Secondary, that the entry is generall, Quod judicium affirmetur in omnibus: and this suf∣ficeth.

But if the Iudgement be affirmed, and the outlawry reversed, then the entry is. Quod judicium affirmetur & Utlagario cassetur.

The same Term in the same Court. Calfe, and others, versus Nevil and others.

AScire facias was brought by Joseph Calfe and Joshua, Executors of A. against Nevil Davyes and Bingley, and the Case was this: they be∣came bayle to one Hall (who was condemned in an Action to the Testator of the Plaintiff) that the said Hall should either render his body to Prison, or that he should satisfie the Iudgement, the Defendents Plead, that after the Scire facias returned, and presently after the Iudgement, the said Hall brought a Writ of Error in the Exchequor Chamber, hanging which, the said Hall, reddidit se prisonae in exoneratione manucaptorum suor: and there dyed; and the Plaintiffe demurred upon this Plea, because it was double, and Calthorp argued for the Plaintiff, that it was double or rather treble.

• 1. That Reddidit se prisonae.
• 2. That he was imprisoned.
• 3. that he dyed in Prison.

And to prove the Piea double in this Case, he cited 13. H. 8. 15. 16. 4. E. 4. 4. 21. H. 7. 10. The second matter that he moved against the former was, that pendant the Writ of Error reddidit se prisonae, and doth not conclude upon the Record, & hoc peratus est verificare, as he ought to have done, and for this he cited 7. H. 8. Kelleway 118.

If J. S. bee bound in a Recognizance, that A. shall appeare such a day before the Kings Iustices at Westminster, if his appearance be not recorded hee shall not have any averment, by Bricknell, and Page  186 Conisby, and in 30. Eliz. It was one Wicks Case, which is ours in effect in case of baile, Dyer 27. 6. E. 4. 1. 2. For the matter the Plea is nought,

1. Because by the Writ of Error brought, the Scire facias against the baile is not suspended, because the Bayle is a distinct record; and upon this he cited the Case of the Ambassador of Spain against Captaine Gifford, which was, Trin. 14. Jac. That by the Writ of Error brought the baile was not su∣spended, and he said that it was so resolved also in Goldsmith and Goodwins Case.

2. For the render of the principall to prison, it is not good, because it doth not appear upon Record: and for this he cited one Austin and Monkes Case, which was in 14. Jac. In Scire facias against the baile, it is pleaded that the principall had rendered himselfe to prison, and upon the matter it appeared, that the render was upon Candlemas day, which is not Dies juridi∣cis; and so the Court this day had no power to commit him to prison, for which the Plea was adjudged voyd.

3. For the death it is no Plea; the baile by it is not discharged, because he hath not rendered himselfe in due time; and for this he cited Justice Wil∣liams and Vaughans Case, which was Mich. 3. Jac. where in Scire facias a∣gainst the baile they pleaded that the principall was dead, and thereupon the Plaintiff demurred, and in this Case two points were resolved.

1. There was no Capias mentioned to have issued against the principall, and yet resolved that a Scire facias would lye against the Baile.

2. That the Plea in Bar is not good, because it may be that the principal dyed after the Capias awarded, or after the return thereof, because it appea∣reth that there was once a default in the principal, and so the baile forfeited, and no Plea afterwards would discharge it, and upon this he put this Case:

A Prisoner escape out of Prison, the Goaler makes fresh suit, and before he hath taken him, the Prisoner dies, this is the act of God, and yet because it was once an escape, an Action of Escape lyes against the Goaler: Jermy for the Defendent; and he remembred a Case which was Hil: 20. Jac. Cad∣nor and Hildersons Case, that by the Writ of Error, the bayle is suspended. Nota, that it was agréed by the Court in this case, that by the Writ of Error brought in, the bayle was not discharged, because it is incertain whether the Iudgement shall be reversed or not: Also it was agreed, that if the principal dies before a Capias awarded against him, that the bayle is discharged: It was also agreed by the Court, that the Plea was not double, for the first matters are but an inducement to the last; and yet by Doderidge, if severall matters are pleaded in Bar, and there be not any dependency on them, the * Plea is double, although none of them be materiall but one.

Jones Justice cited one Hobs and Tadcasters Case; which was 43. Eliz. in B. R. where after a Writ of Error brought, a Scire facias issued against the Bayle, and upon Nihil returned, the Plaintiff in the Scire facias brought in an Audita Quaerela, and there the matter came in question, whether upon the Iudgement the Principall ought presently render himself to prison, or that he should stay until a Capias awarded against him, and there it was re∣solved by Popham and all his Companions, that the Principal is not bound to render himselfe to Prison, untill a Capias be taken out; so that if he dies after the Iudgement, and before the Capias awarded against him, the Bayle is discharged.

And in the principal Case here it was resolved, that a Scire facias does not lye against the Bayle, until a Capias be awarded against the Principal: & be∣cause no Capias in this case was awarded against the Principal (which could not be by reason of the Writ of Error) before his death. And also the Plain∣tiff in his Declaration ought to have averred, and shewn that the Capias was Page  187 awarded against the Principal; for these reasons Iudgement was given quod quaerens nil capiet per Billa.

The same Term in the same Court. Reynor versus Hallet.

IN an Action upon the Case for these words, viz. Reynor is a base Gentle∣man, * he hath four children by his Servant Agnes, and he hath killed them all, or caused them to be killed; and after a verdict for the Plaintiff, it was moved in arrest of Iudgement by Jermy, that the words were not actiona∣ble:

For 1. As to the first words, Base Gentleman, they are but words of chol∣ler.

2. The next words, He hath four Children by his servant Agnes, cannot be actionable, for although she were once his servant, yet she might be after∣wards his Wife.

3. The Plaintiff hath averred in his Declaration, that he hath lived con∣tinently, and then he cannot have children by his servant Agnes, and then the words are not actionable.

And 4. For saying he hath killed them is not actionable, and upon this he cited one Snags Case, Co. lib. 4. who brought an Action for these words, Thou hast killed thy Wife; and it appeared by the Declaration, that his Wife was alive, and therefore it was resolved, that the words were not actionable.

And as to the last exception, it was said by Ashley Serjeant on the other side, that albeit the Plaintiff hath averred in his Declaration, that he lived continently, and so in a manner confessed that he had no children, this is but for the aggravation of the offence of the Defendant: as when an Action is brought for calling one Thiefe, he avers that he lived honestly, and yet the Action will lye. But I confesse if the Plaintiff had averred that he never had any child, then it would be like to Snags Case, Co. lib. 4. 16. a. and that the A∣ction would not lye.

But in Anne Davyes Case, there she averred, that she was a Virgin of good fame, and frée from all suspition of incontinency; and the Defendant sayd that a Grocer had got her with child: Owen Wards Case in Cook, Book of Entries hath the same Declaration as this, and it was the President thereof. But Jermy moved another exception upon these words, he hath killed them, and doth not say Felony, which is not good, for he migt kill them in execu∣tion of Iustice, which is justifiable, Trin. 2. Jac. Willers Case in the Court, it was adjudged, that for these words, Thou hast stollen a peece, and I will charge thee with Felony, an Action lies not, because a péece is a word of doubt∣full signification.

And Trin. 20. Jac. It was resolved that these words (Agnes Knight is a Witch) were not Actinable: but it was answered of the other side. that upon the whole frame of these words, they cannot be intended but to be spoken ma∣litiously, and there can be no pretenc• of lawfull killing of children: Dode∣ridge, all the words joyned together are actionable; but these words only considered, he hath four children by his servant Agnes, are not Actionable, and albeit he doth not alledge it felony, yet this is a scandall, and good cause of Action. Jones agreed, and yet he conceived, that for saying singly, that one hath a Bastard, an Action lies not, albeit the having of a Bastard be punisha∣ble by the Statute of 18. Eliz. cap. 1. But by him he hath killed the King. Page  188 shall be taken in pejori sensu; otherwise it is, if the words of themselves be in∣different, as (Pope) and this word shall not be the rather taken in pejori sen∣su, having relation to all the sentence: for the contrariety of the Declara∣tion, it seems to me, that the Declaration is good enough, but if one saith, Thou hast killed J. S. where in truth, there never was such a man, it is not actionable.

But here the Averment of the Plaintiff is more generall, Ubi re vera, he is not guil•y or incontinent, which is a general allegation: but if he had averred ubi re vera, he never had any child, there peradventure the Action would not lye, but here it will: Whitlock Justice agreed, and he sayd that the first words, hath had four children by his Maid Agnes are actionable, and for the other matters they agreed, whereby Iudgement was given for the Plaintiff.

The same Term in the same Court.

THis Term in the Common-place, Sargeant Hendon cited this Case to be adjudged 4. Jac. A Copy-holder made a Lease for yeares by License, and the Lessee dyed, that this Lease shall not be accounted assets in the hands of the Excecutors, neither shall it be extended: But the Case was denyed by Iustice Hutton and others, and that an Ejectione firmae lies of such a Lease.

But he said, that if a Copy-holder makes a Lease for yeares by License of the Lord, and dyes without Heire, the years not expired, the Lord notwith∣standing this may enter, for the Estate out of which this Lease was derived is determined: But Yelverton Iustice was contra, because this License shall be taken as a confirmation of the Lord, and therefore the Lease shall be good against him, and there (as I heard) it was argued by all, that if a Co∣py-holder makes a Lease for a yeare, this is a Lease by the Common-Law, and not customary, and shall be counted assets in the hands of the Executors of the Lessée.

The same Term, in the Kings Bench.

NOta, upon evidence to a Iury between Buffield and Byburo, the Case ap∣peared to be this, upon a Devise with these words, I will and devise that A. and B. my Feoffees shall stand seised, and be seised to and of Iohn Callis for life, the remainder &c. And the truth was that he had no Feoffees: and the opinion of the whole Court (nullo contradicente) was, that this is a good De∣vise to John Callis, by reason of the intention. 38. H. 8. Bro. Devis. 48. & 15. Eliz. Dyer 323. were urged for the proofe of it, and by Doderidge the Case of 15. Eliz. is more strong then our Case is: Linyen made a Feoff∣ment to his own use, and afterwards devised that his Feoffees should be sei∣sed to the use of his Daughter A. who in truth was a Bastard, and yet this is a good Devise of the Land by intention, for by no possibility they can be seised to his use.

Mich. 2. Car. Lemasons and Dicksons Case in the Kings Bench. Trin. 2. Car. Roll. 1365.

THe Case was this, One Parcevall Sherwood was indebted to Susan Clarke, who brought an Action of debt, by a Bill of Middlesex, which is in nature of a Writ of Trespas against him, and Sherwood upon a mean Proces was arrested by the Defendant (being Bayliff of the Liberty of White-Chappel) and being in his custody, he suffered him to escape: Af∣terwards Susan Clarke made the Plaintiff her Executor, and dyed, and then the Plaintiff brought an Action upon the Case against the Defendant upon the said escape; and upon issue joyned, it was found for the Plain∣tiff.

And Calthrop of Councel with the Plaintiff, moved, that the Action will well lye, for the Testator himselfe might have had either an Action of Debt, or upon the case upon the sayd Escape, and therefore the Executor may have the same remedy, and that by the equity of the Statute of 4. E. 3. cap. 7. which gives an Action to Executors pro bonis asportatis in vita Testatoris, And by 14. H. 7. 17. this Statute shall be taken by equity, and Administra∣tors, who are in the same mischiefe shall have the same remedy, albeit they be not named in the Statute, old Nat. Brevium 103. An Executor shall have a Quare impedit for a disturbance made in vita Testator, and 7. H. 4. 6. and old Nat. Brev. 123. b. An Executor shall have an Ejectione firmae of an ouster made to the Testator, 17. E. 3. Executors 106. An Executor shall have a Replevin of Goods taken in vita Testatoris, and it hath been often∣times resolved, that an Executor shal have a Trover and Conversion of Goods taken and converted in vita Testator.

Doderidge, demanded of him the reason why an Action upon the Case upon an Escape in the life of the Testator, should not lye against an Executor, to which he answered, because it was a meer personall wrong. Doderidge, so is the wrong here; and he said that an Executor cannot have an action Vi & armis, for a trespas done in vita Testator, and in this case because the escape was in vita Testator, it is a personall wrong to him, for which the Executor shall not have an action upon the case.

But it had been otherwise, if the escape had been after the death of the Testator, and the Statute of 7. E. 3. doth not extend to it, because this Statute is only for Goods, but I agree to the case of Trover and Conversion. Jones Justice, If this action upon the case will not lye by the Executor, it would be a mischievous case, for as soon as the Creditor dies, the Goalor will and may suffer the Prisoner to escape, because none can have an action against him, but as it appeareth by the Case of 15. Eliz. Dyer.

The case is as mischievous for the Creditor, if the Goalor suffers an es∣cape, and dyes, for there no action lyes against the Executors. And for the case of Quare impedit, I agree to it, and so it was resolved in Brokesbyes Case, 31. Eliz. that an Executor shall have a Quare impedit for a disturbance made in vita Testator, if the avoydance be a Chattel vested, and therefore within the equity of the Statute, which gives an action de bonis Testator, and he was commanded to move it another time.

And at another day in Hillary Term, next after, Grigs said for the Defendant, that the Executor cannot have this action for an escape in vita Testator, because it is a meer personall action given to the Testator, & moritur cum persona, Page  190 and cited 15. Eliz. Dyer, Whitakers Case, and that it is meerly personall appeareth by 10. Eliz. Dyer 271. Where an Executor shall not be charged with an ascape in vita testator, generally, where not guilty is a good Plea, there an Action doth not lye for it against Executors. And this Case is not within the equity of the Statute of 4. E. 7.

But it hath been objected that an Ejectione firmae is within the equity of this Statute for the Executors to have it 7. H. 4. 6. but the reason there, is, because it is to recover the Term it selfe; and not d•mages only: and upon the same reason an Action of Covenant, upon a Covenant broken in the life of the Testator, is maintainable by an Executor, and that also is the reason of the Case of the Qua: impedit, because there the presentation is to be recor∣ded: but in our Case damages only are to be recorded upon the escape, and so they are not alike.

2. The Arrest here is upon mean Proces, and upon a Bill of Middlesex, which is but in nature of a Trespasse before Declaration, and I conceive that if one be taken by a Cap: ad satisfaciendum at the sute of one, albeit the party at whose Suit he is taken, dyes, yet he shall be detained in execution, but I conceive the Law to be otherwise upon a Cap: ad respondend: and al∣beit the Plaintiff saith, that the Arrest was, ea intentione, to declare against him in an Action of Debt, yet an intent is a secret thing, and albeit the Executor represent the person of the Testator, yet he cannot follow it, and it is impossible to prove the intent.

Jermy for the Plaintiff said, that there is a difference, where an Action is brought by, and where against Executors, and this appeareth by Littletons Case, that an Action of account doth not lye against Executors for want of privity as to that purpose, but it is cleer that account lies by Executors, because this is a point of interest: And here in this Case, the Testator had interest in the body by the arrest, and this appeareth in Hichcocks Case, cited in Hargraves Case in the Lord Cooks 5. Report, and by the Arrest the body of the party is as a Chattel in the Testator: and he compared this to the case of 7. H. 4. 2. & 3. Fitzherberts Executors 52. An Executor shall have a ravishment of ward for a taking in the time of the Testator.

And 7 H. 4. 6. and a Case cited by Hankford, that if one enter upon a Statute Merchant, who dyes, his Executor shall have an assize, and therefore I conceive, that if a Tenant by Elegit be ousted and bring an Assize, if the Executors be custed again, he shall have a redisseisen upon the first •uster, because the Interest continues in him which was in the first Testator, and it is to be observed in our law, that the Law inlargeth it selfe to give to Exe∣cutors the same remedy which the Testator had, and thereupon he cited Co. lib. 6. 80. a. & 3. Eliz. Dyer. 301.

And in our Case the body of the party was in the Testator, as a gage till appearance, so that it was not only a personall tort. for he had an interest, and this appeareth by Co. lib. 5. 27. by a Case put in Russels Case there, and if the Executors shall not in this Case have an Action, it would be very mischievous. for so the Goalor shall suffer escapes dispunishable, 20. E. 3. Fitz. Executors 74.

But as to this reason it was answered by Jones Justice, that the same mischiefe is of the other side, if the Goaler suffer an escape and dies, and Action lies not against his executors.

Calthrop on the same side cited F. N. B. 121. a. that a man condemned in debt, and imprisoned, if the Goalor suffer him to escape, the Party, or his Executor may have debt against the Goalor: And he said, that at Common Law, Debt lay against a Goalor upon an escape, as appeares in Fitz. Debt 127. 38. H. C. placit 36. And if it were a debt in the Testator, then Exe∣cutors may have an Action upon it.

Page  191 But by Doderidge Iustice in the said case, debt lies not at Common-Law, for to what purpose was the Statute made? But for the point in Question, his sudden opinion, was, the Executor shall have this Action, and that it is within the equity of the Statute of 4. E. 3. for it is a wrong, although it were upon meane Proces, and the tort continues as to the Executor, for every thing which makes to the hinderance of the Execution of the will, is wrong to him, and the performance of Wills is much favoured, because it is the last desire of the Partie who is dead, and it is for the publick-weale, because by this means debts shall be payd.

And many cases are within the equity of the Statute, that are not within the letter, as those Cases which have been put, all which he agreed: Jones Iustice on the sudden was against it, and that this Case is not within the equity of the Statute of 4. E. 3.

There are divers Actions which are not helped by this Statute, as Tres∣passe for cutting of Trees, Battery, and the like; for the Statute is, de bo∣nis & Catallis asportat in vita testator: An Executor shall have a Replevin of Goods taken in vita testator, for by this he recovers the thing it selfe, and shall have Detinue, but shall not have tre•passe, for he cannot punish the wrong done in the life of the Testator.

The Statute of 4. E. 3. is much inlarged by equity, as the cases which have been put, and extend also to usurpation in the life time of the Testa∣tor, as appears in Russels Case Co. lib, 5. & 32. & 33. Eliz. in C. B. in the Bishop of Chichesters case, that if the Testator dyes within 6 months after the usurpation, the Executor shall have a Quare impedit, And the Case of Trover and Conversion in vita Testator, was maintained by Executors, and it was so resolved 41. and 42. Eliz. in the Countesse of Rutlands Case in both the Benches, because this is in nature of a Writ of Deti∣nue.

Now for the Case in question, I conceive that it is not within the Sta∣tute of 4. E. 3. because it is neither bona nor catalla. Whitlock Iustice contra, and that this Statute is very much taken by equity, & praeter lite∣ram, though not contra literam.

But Nota, that all agreed, if it were upon an escape after Iudgement, that the Action would lie by the Executors▪ according to the Case of F. N. B. 121. a. But the principall Case was adjourned.

And afterwards Trin. 3. Car. It was argued again by Jermy for the Plain∣tiff, and the sole point was, A man taken by latitat. and being in the custody of the Sheriff escape, the Party at whose suit he was arrested dies, whether his Executor shall have an Action upon the Case upon the Escape, and he con∣ceived that he might.

It hath been objected, that it is a personall wrong, and as an Action doth not lye against Executors upon an Escape, in vita Testator, so not by Execu∣cutors: To which I answer, that it is not meerly personall, but mixed with an interest.

At the Common-Law, an Executor could not have trespas for Goods taken in vita Testator, but yet he should have a Replevin, 34. E. 3. Fitz. Avoury 257. and Executors 106. So at Common-Law, a Successor should not have Trespas, for Goods carried away in the life time of his Predecessor, but he shall have a Replevin, 9. H. 6. 25, but this was remedied by the Statute of Marlebridge cap. 28. and so upon the Statute of 4. E. 3. de bonis asportat &c. Trover and Conversion hath beene adjudged within the said Statute, for the Statute hath alwayes been liberally expounded. 7. H. 4. 2. Fitz, Execu∣tor 52. An Executor shall have ravishment of Gard taken away in vita Testa∣tor, and also other Statutes which do not name Executors, have beene e•∣pounded to extend to them, as the Statute of 23. H. 8. which gives attaint. Page  192 3. Eliz. Dyer 201. Co. lib. 6. 8. Executors shall take benefit of the pardon of * 43. Eliz. and 6. E. 6. Bendloes Reports (which is cited there) Executors shall have restitution upon the Statute of 21. H. 8. and Co. lib. 5. 31. and 27. Russels Case, an Executor shall have Trover upon Goods lost in vita Testa∣tor, and this is in manner and nature of a promise to have the party in Court at the day, and it is cleer, that upon an expresse Assumpsit to the Testator, an Executor shal have an action upon the Case, and it hath been in manner agreed by the Court, that if it had been an escape of one in execution, that the action would have lyen by the Executor: and I see no difference between that and our case. And it was adjourned.

The same Term in the same Court.

UPon an Information by Heath the Kings Attorney, against two men of the County of Huntington in the name of all the County, that they ought, and used to repaire the Bridge of S. Eedes in the Coun∣ty of Huntington, Issue was joyned by the County, whether they ought and used to repaire this Bridge; and the Attorney gave no evidence, but put it upon the other side, for he said by the Statute of 22. H. 8. cap. if it doth not appeare that any particular person, or Towne ought to repaire a Bridge, by reason of Tenure, or otherwise, that then the County where this is, ought to repaire it.

But Nota, that the issue was, whether they ought to repaire the whole Bridge, and yet upon the evidence it appeared, that onely two Arches and a halfe of the Bridge was in the County of Huntington, and two A••hes and a halfe in the County of Bedford, and the Iury found generally, that onely two Arches and a halfe of the Bridge were in the County of Huntington, and say nothing where the rest was, for they could not find a thing in ano∣ther County.

And also they found that the County of Huntington ought to repaire all, but not that they used to repaire it: And at another day Hedley Serjeant moved for the County, that the Verdict was not good, because the issue was, whether they ought to repaire, and a tempore cujus contrarium &c. had re∣paired &c.

And the Iury hath found that they ought to repaire, which is but the halfe of the issue, and also they find that they ought to do it, which is a Question in Law, and therefore voyd, 8. H. 6. 3. 4.

Secondly, the issue is, whether they ought to repair the Bridge, and the Iury hath found, that they ought to repair two Arches and a halfe onely, &c. and the Bridge is an entire thing.

The Attorney answered, that for the first exception the case of 27. Ass. Pl. 8. is against it.

And for the last the very case of 43 Ass. Pl. 37. is against it, and therfore the Court conceived the Verdict good, notwithstanding these exceptions, Dode∣ridge Iustice, By the common Law before the Statute of 22. H. 8. if no man by reason of tenure or otherwise, ought to repaire a Bridge, the County ought to do it; like to the case of 8. E. 4. Fishers by the Law of Nations may dry their Nets upon the Land of any man.

The same Term in the same Court.

DOctor Cleland brought a Writ of error against Baldock, upon a Iudge∣ment given in where the Plaintiff declared that the * Defendant, in consideration that he would do all his commands, honestly and truly for the space of a yeare, assumed to pay him 10 l. and further declared, that he had done all his honest and lawfull commands, and this promise be∣ing found by verdict, Iudgement was given against Doctor Cleland, and thereupon he brought this Writ of error, and Greene assigned two er∣rors.

1. The Assumpsit is, that he shall doe all his commands honestly and truly, and he hath declared that he hath done all his lawfull and honest commands, and he may honest commands, and yet not honestly.

2. It is said that Jurator Assident dampna, and it is not said occasione transgression. predict. and it is against all Presidents: But Nota, that there were these words, ex hac parte opposita, and therefore the exceptions were disallowed by the Court, and the first Iudgement affirmed.

The same Term in the same Court. Secheverel versus Dale.

THis Case was sent out of Chancery to this Court •o know the Law therein, and in Trespas the case was this: Henry Secheverell, the Fa∣ther seised in Fée, levied a Fine to A. and B. in Fee, to the use of himselfe for life, absque impetitione vasti, with power to cut and carry away the trees, and to make Leases for 21 yeares, or three lives, the remainder to the use of John Secheverell his eldest Son for life, without impeachment of waste, with the same powers.

Henry the Father made a Lease to one (under whom the Plaintiff claims) for three lives, rendring the ancient Rent, excepting all the trees (unlesse those which shall be for cropping, lopping, and fewell) Henry the Father dyes, John the Son in the next remainder cut certain trees Victorin, Secheverell who clayms by the lease made by the Father, brings trespas, and two Questions were moved.

1. Whether Lessee for life without impeachment of waste, may make a Lease excepting the trees, and it was objected by the Councel of the Plain∣tiff, that he could not because this second Lease ariseth out of the first fine, and out of the estate of the Conusor: But the Court prima facie, was of opi∣nion that he might well make such a Lease with such an exception, See Co. lib. 11. Lewys Bowls his Case, and Doctor and Student lib. 1. cap. 1. and by Doderidge Iustice, the Lease ariseth out of both the estates. Jones Iustice, suppose the Lessee abs{que} impetitione vasti, assigne over all his estate, might he cut the trees? and it was conceived that he might, for by Doderidge he hath power to dispose of the trees, as it was resolved in Lewys Bowls his case. Jones, he hath no propriety in the Trees, untill they be cut, Crew: ch: Justice, Admit a Stranger cut the trees, who shall have them? By all the Court the Lessee without impeachment of waste shall have them.

Page  194 2. Point, Tenant for life without impeachment of waste, with power to cut and carry away the trees, and make Leases for 21. years or three lives, the remainder for life to J. S. without impeachment of waste, &c. Tenant for life makes a Lease for thrée lives, and dyes, whether he in remainder for life, without impeachment of waste, with power to cut the trées, may cut the trées, and take them during the Lease for thrée lives, and the Court séemed to be of opinion that he might: And Leving of Councell with the Plaintiff, argued, that when tenant for life without impeachment of waste with power to cut the trees, and to make Leases for 21. years or three lives, makes a Lease for thrée lives, excepting the trées, that this is a voyd exception, be∣cause he hath no interest, but a bare Authority, 27. H. 6. Fitz. Wast. 8. Statham tit. Wast. 1. makes this a Quaere (which Statham was once the owner of the Land in question.) A man makes a Lease for life without im∣peachment of waste, a Stranger cuts trées, the Lessée brings trespas, he shall recover no Damages for the value of the trees, because the propriety belongs to him in the reversion, & he may dispose of them, Quaere Dyer 284. Daunsley and Southwels Case, Co. lib. 11. Lewys Bowles case, that such a Lessee may take trées which are blown down, and 3. H. 6. 45. Mich 41. and 42. Eliz. C. B. Leechford against Sanders in an Action of waste upon a Lease made to Sanders for life, with a proviso that the Plaintiff might dispose of the trées during the estate, and resolved that the Action lies not, for notwith∣standing this power, the trées are demised to the Lessée also, so here when the trées are excepted, he hath no interest, but only an authority.

2. The exception is voyd for another reason, because when such a Lessée, makes such a Lease, this is not his Lease, but it hath its operation out of the originall fine, and he who makes this hath but the nomination, and therefore cannot adde a condition or exception to it. And if the second Lease shall have its being out of the estate of the Lessee for life, then there shall be an use upon an use, as appears Co. lib. 1. 134. and that the Law will not al∣low. 15. H. 7. and Co. Lib. 1. Albanyes Case, If a man devise, that his Executors shall fell his Land, they cannot adde a condition or exception to this sale, as an attornment upon a condition subsequent is voyd, Co. lib. 2. Too∣kers case.

3. This case may be resembled to the case of Copy-holds, which is in Co. lib. 8. 63. b. in Swaynes Case: If a Lord takes a Wife, and afterwards grants Lands by Copy, according to the custome, and dyes, his Wife shall not be endowed of this Land, for albeit her title of Dower was before the Grant, yet the title of Copi-hold (which is the custome) is elder then the title of Dower; so in our case, the title of the second Lessee is derived out of the estate of the Conuzées, and therefore shall not be clogg'd with the Excep∣tions of Lessee for life, without impeachment of waste.

4. This priviledge to cut the trées is annexed to the estates, and goes along with the estate, and therefore shall not begin before the Stranger be in possession, 3. E. 3. 44. 45. Idles case 28. H. 8. Dyer 10. And it may be re∣sembled to the cases of 16. E. 4. and 27. H. 8. Tenant in taile sold the trées, if he dyes before the Party takes them, he shall never have them, because he hath stayd out his time. But it may be objected that upon such a Lease he may reserve a rent, as it is in Whitlocks case Co. lib. 8. to which I will offer this difference, Lessée for life, with power to make Leases for thrée lives, reserving rent makes a Lease for thrée lives, reserving rent, this reservation is good, because it is but a Declaration of the Lease, and of the rent; but if there were no such clause of reserving rent, then I conceive it were other∣wise.

But admitting all this were against me, yet the justification of the Defendant is not good, for by the exception out of the exception, the Lessor Page  195 cannot take the benefit of the bodies of the trées, because he will thereby deprive the Lessée of the croppings and loppings &c. as in 28. H▪ 8. Dyer Ma∣leverell and Spynkes case. Mylward of Lincolnes Inne for the Defendant. And first he conceived that the Lessée for life without impeachment of waste, might dispose of the trées in the same manner as Tenant in fée might doe, with this difference, that the disposall thereof ought to be in his life time, and so it is resolved in Lewys Bowles case Co. lib. 11. 46.

2. The second matter in the case is, whether the Lessée for life, without impeachment of waste &c. hath only an authority, or an interest in the trées, and I conceive that he hath an interest, for his power is to make Leases of it, or of any part for 21. years or 3. lives, and that the Conuzors shall be seized to the use of such Lessées, now when he makes a Lease excepting the trées, the trées are not demised, so that he remains still tenant for life, with∣out impeachment of waste for the trees.

3. Excepting all Timber-trées, but for fencing, cropping, and lop∣ping; it hath béene objected that this exception hath no forme: It is a generall rule. that if a man makes a Grant, and in the close thereof ex∣cept all that which was granted before, the exception is voyd: and this ap∣pears by 34. Ass. Pl. 11. A Will was granted salvo stagno molendini: so here the last exception takes away all that which was granted before, 38. H. 6. 38. in a Quare impedit 28. H. 8. Dyer 19. by Mountague, the cropping and lop∣ping of trées belong to the Lessee, like to the Duke of Norfolks case in 12. H. 7. 25. and 13. H. 7. 13. and 18. E. 4. 14. and albeit every grant shall be taken most strongly against the Grantor, yet it shall have a reasonable intendment for the benefit of the Grantor, and this appeares by 7. E. 4. 22. 17. E. 3. 7. 9. E. 4. 2. 21. E. 3. 43. so here the Exception shall have a reasonable intendment, that he shall onely have such loppings and croppings as shall be bestowed upon the Park, and no other. Doderidge Iustice, I conceive that by the words without impeachment of waste, he hath interest in the trees as long as the estate continues.

2. That when he makes a lease by the second power given to him, this is derived out of the Fine, and shall be good against him in the remain∣der.

3. Because he hath power to dispose of the trées, I conceive, that when he makes a Lease, excepting the trees, this is a good exception, 24. Eliz. C. B. A man made a Lease for years, now he hath the wast of the trees, if he assign over his estate excepting the trées, the exception is voyd, but in our case the Lessée hath not parted with his whole estate.

4. So the sole question is, whether he in remainder may cut the trées du∣ring the estate of thrée lives made by Henry Secheverell, and he conceived that he might, and so concluded for the Defendant: Jones Iustice agréed, that the Lessee for life without impeachment of wast, hath interest in the trées, but this interest is concomitant with his estate and determinable with it.

2. I conceive that the exception is good. Such things which a man hath by the Law he cannot resign to himselfe upon his assignment, as the cropping and lopping of trées, as if tenant in taile after possibility &c. (who is dispu∣nishable of wast by fréedome of the Law) assign over his estate, reserving the trees, he cannot cut the trees, but here the Lessee hath a larger liberty then the Law gives to him, and he by vertue of this may give away the trees; but I conceive that if he had assigned over all his estate, then he could not have excepted the trees, but here he hath not granted over all his estate, for he hath a remainder, and may have an estate in possession afterwards▪ and upon this Lease for three lives hee may reserve a rent to him∣selfe.

Page  196 3. I conceive, that this Lease is derived partly out of his owne estate, and hee hath not the meere nomination, and partly out of the first Fine, and therefore such Lessees shall be subject to all charges made by the Tenant for life who made the Lease, as Statutes, Recognizances, &c. to wit, during the life of the first tenant for life.

4. When he dyes who made the said Lease for three lifes, whether he in remainder may cut the Trees during the said Lease, and he conceived (yet not without some doubt) that he had no power during the lives of the sayd Lessees. Whitlock Iustice agreed with the rest, so that it was agreed by all:

1. That it is a good exception.

2. That the second lease is drawn out of the Fine: And the question now is, whether he in remainder without impeachment of waste with power to cut the trees, hath power to cut them, during the lives of the said three Lessees, and the Councell was commanded to speake to this point only upon another day.

The same Term in the same Court. Foster and Taylers Case.

ERror was brought upon a Iudgement given in C. B. and after the Record was certified into this Court, the Common-pleas amended a rasure of the Record which was there, and now Bramston Sergeant mov•• for the Def. that the Record might be amended here: Jones Iustice, I doubt whether an inferior Court can amend after the Record is certified here, for then it is but a piece of Parchment with them: Bramston, It is resolved that it may in Blackamores case, Co. lib. 8. Doderidge, the doubt is, whether it may be amended after error assigned in the same Court, for this takes away the bene∣fit of the Law from the Plaintiff in the Writ of error. Jones, at another day said, that if in nullo est erratum had been pleaded, it could not have beene amended.

And as it is, it cannot be amended, because now it is assigned for error, and the Plaintiffe was once intitled to his Writ of error, which shall not be taken away from him afterwards: and in 11. Jac. there was such a case mo∣ved by Yelverton the Kings Solicitor, and agreed that it could not be a∣mended.

And Pasch. 17. Jac. one Abbingtons case upon a rasure, as our case is, & it was doubted whether it could be amended: and by Broom Secondary in the said case, it was amended. Doderidge in this case, it may be amended, albeit it be after error brought, because it is only the error of the Clerk, and it is amen∣dable, although the error be assigned in the same point, and so was the opi∣nion of the whole Court, and therefore it was amended.

The same Terme in the same Court.

WEld of the Inner Temple moved for a Prohibition to the Ecclesiasticall Court at Worcester, and shewed for cause. 1. That the suit there was for money, which by the assent of the greater part of the Parishioners of D. was assessed upon the Plaintiffe for the reparations of the Church, to wit, for the recasting of their Bels, the truth is that the charge was for the making of new Bels, where there were four before, whereby it appears that it is meerly matter of curiosity, and not of necessity, for which Parishioners shall not he liable to such taxations, and he relied upon. 44. E. 3. 19. by Finchden. 2 The party there is overcharged, of which the Common Law shall Judge. 3 The Party hath alledged a Custome that he and all those who hath an estate in such a Tene∣ment, have used to pay but 11 s. for any reparation of the Church. But the Prohibition was denied, and by Doderidge in the Book of 44 E. 3. there was a By-law in the case to distrain, which is a thing meerly temporal, for which the Prohibition was granted & per Curiam, in this case the assessment by the major part of the Parishioners binds the party; albeit he assented not to it: and the Court seemed to be of Opinion that the Custome was not reasonable, because i••aid a burthen upon the rest of the Parish. Littleton of Counsell of the other side, suppose the Church falls shall he pay but 11 s. Whitlock, If the Church falls, the Parishioners are not bound to build it up again, which was not denied by Justice Jones,

The same Term in the same Court.

A Prohibition was prayed, because a person had libelled in the Eccle∣siasticall Court for the tenth part of a bargain of Sheep, which had de∣pastured in the Parish from Michaelmas to Lady day: and the party surmi∣sed that he would pay the tenth of the Wooll of them, according to the custome of the Parish. But the Prohibition was denyed, for as Doderidge Iustice sayd, by this way the person shall bee defrauded of all, if he shall not have his recompence, for now the Sheepe are gone to another Parish, and he cannot have any Wooll at this time, because it was not the time of sheering. Nota, per Whitlock, de animalibus, inutilibus, the Person shall have the tenth part of the bargain for depasturing, as Horses, Oxen, &c. but de Animalibus Utilibus, he shall have the Tith in specie, as Cowes, Sheep, &c.

The same Term in the same Court.

UPon an Issue joyned in an Ejectione firmae, it was found for the Plain∣tiff, and Lewkoor moved in arrest, &c. because the Ejectione firmae was de Messuagio •ive Tenemento, which is not good for the incertainty, and so it was resolved 12. Jac. in this Court, and Ejectione firmae lies not, De Te∣nemento Co. lib. 11. 54. Savils case, And it was resolved in the Exchequor-chamber, that it lies not de pecia terrae; and in this Court in Rhetorick and Chappels Case it was resolved that it lyes not De Mess. & Tenemento.

The same Term in the same Court. Sir Robert Browne against Sir Robert Stroud.

IN debt upon an Obligation for performance of certain Covenants contai∣ned in certain Indentures made between the Parties aforesaid, and the Covenant upon which the question did arise was this: R. B. being seised of the Mannor of Dale, & S. R. S. of the Mannor of Sale, they exchanged the one for the other, and the Mannor of R. B. being more worth then the Mannor of R. S. R. S. covenanted to pay for the said Mannor 1200 l. and no time was limited when the money should be payd, and the money not being payd with∣in a year after, R. B. bargained and sold the said Mannor by Deed indented, and inrolled to J. S. and his Heirs, and afterwards brought an Action of Debt against the said R. S. for the said 1200 l. who pleaded this mater in Bar, and Jermy argued for the Plaintiff, that this Plea shall not discharge the Defendant of the said Covenant, for it is a reciprocall covenant, and he ought to sue the other Party for the breach of the covenant; and it is a per∣fect bargain Dyer 30. 14. H. 8. 9. and here the Agreement is in writing, and it is good, albeit there be no limitation when the money shall be payd, 37. H. 6. 9. Calthrop for the Defendant, that the Action could not ly•, for the contract is Executory, and therefore is not to pay the money till he hath the Mannor, for the Covenant is that pro Maner. &c. he should pay him 1200 l. and the word [pro] implies a condition and consideration, and being excecutory on the one part, shall be also executory on the other part, 9. E. 4. 20. 21. Abridg. in Plowden 134. in Browning and Bestons case 15. E. 4. 4. If A. grant to B. all the ancient Pale, and for them B. grants, that he will make new Pale for A. if B. cannot have the old Pale, he shall be excused from ma∣king the new Pale, for he cannot have the one without doing the other, 6. E. 6. Dyer 75. The contract was. pro 20. which makes a condition, 15. H. 7. 10. by Fineaux, If a man covenant with me to serve me for a yeare, and I covenant to give him 10 l. he shall have an Action for the 10 l. although hee do not serve me, otherwise if I covenant to give him 10 l. for his service.

Also there is no time limited when the payment shall be made: true it is, that in Co. lib. 6. 30. when the act to be done is a transitory act, and no time is limited there, it ought to be done in convenient time, but the Law shall judge of the conveniency of this time, and the Law will never judge the time of payment to be before he hath the Mannor, pro quo. &c.

In many cases when no time is limited, the Law will appoint a time, as appeareth in 33. H. 6. 48. and Perkins 799. But now in our case the Law will never appoint that this money shall be payd, because the other party hath disabled himselfe to perform his part; like to Sir Anthony Maines case Co. lib. 5. 21. Doderidge, The bargain is not perfect, because no day of pay∣ment is limited, and the other shall have no Action of Debt for the money before he hath the Mannor. Jones, If I covenant to make a Feoffment to J. S. and he covenant in consideration of that Covenant to pay me 10 l. he shall have an Action of Debt against me, before he hath made the Feoff∣ment.

And at another day in Trinity Term. 3. Car. Noy argued for the Plaintiff, and opened the case thus: Amongst other Covenants in certain Indentures between them it was agreed, that wheras Sir R. Brown the Father was s•ized of the Mānor of Gadmaston, with the Advowson appendent, & Sir R. Stroud of the Mānor of D. within the same Coūty, that there should be an exchāge between Page  199 them of the said Mannors, & because the Mannor of Gadmaston was the better, Stroud covenanted with the Father and the Son to pay 1200 l. to the Father for the Demesnes of the said Mannor and Advowson, and that at Michaelmas next insuing, there should be a mutuall entry into the said Mannors, and that in the mean time either of them should take the profits of their own Mānors, and that they should deliver each to other their evidences, and that Assurances should be made as Councel should advise; the Plaintiff declare, that they had performed all the Covenants which were to be performed on their part, and that the Defendant had not paid the 1200 l. and that thereupon this action of Covenant was brought.

The Defendant protestando that the Plaintiff had performed the Cove∣nants, and had not produced their edidences, &c. for Plea saith, that the Plaintiff after Michaelmas bargained and sold the Mannor of Gadmaston to J. S. and his Heirs, upon which the Plaintiff demurs, and he conceived that notwithstanding the sale after Mich. yet an action of Covenant lies for the 1200 l. but otherwise it had been if he had sold it before Mich. But it hath been objected that the money by the Covenant is to be payd pro the Mannor, and therfore because the Defendant cannot have the Mannor, he shall 〈◊〉 p•y the Money, and for this 9. E. 4. 20. and 24. E. 3. 21. have been cited, that [pro] implies a condition, as pro servitio pro maritagio, but these Cases do not resemble this case in reason, because the fact to be done here, rests upon an indiffinite time, and the Defendant is to do the first Act, & the Defendant is bound to a certain time for the doing of this Act. For the first it is agreed, that the Defendant shall pay 1200 l. and the Plaintiff agrees to make Assu∣rances for this Mannor, and that the Assurances should be made as Councel should devise, and I conceive that the Defendant ought to procure the Coun∣cel to devise, for mutuall Assurances ought to be made, and either party ought to appoint what Assurances he would have, and the one ought not to be a Carver to the other, neither can one know what councel the other will have, and upon this reason is the case, 9. E. 4. 3. 4. and Plow. 15. b. the Case of the Bell, it shall be weighed by him who is to have the profit, peradventure if it were in case of an Obligation to perform covenants, there he ought to pro∣cure the Counsel, for saving the penalty of the obligation; but it is otherwise here in case of a Covenant, Co. lib. 5. 22. b. 18. E. 3. 27. and 4. E. 3. 29. If a man be bound to be ready to levy a Fine such a day, yet the other ought to bring the Writ of Covenant against him before that day, for otherwise he cannot levy a fine;

But now the Law is altered, for now fines are levied, & Writs of Covenant are sued out afterwards, 17. E. 4. 2 per Pigot: If I am bound to you in 20 l. to enfeoff you at such a day of such Land, if you please to take the Feoffment, you are bound to let me know your pleasure, and here the Assurance is for the be∣nefit of the Defendant, and he cited Co. lib. 5. 23. and 7. E. 4. 13.

2. For the time, this Assurance ought to be devised by Councel before Mich. or otherwise the Plaintiff shall be enforced to keep his Mannor all his life, and shall be hindred of the sale of it for payment of his debts, or other necessaries whatsoever. And 17. E. 3. 1. liking ought to be shown in conve∣nient time. And it appears by the Articles that the time intended was before Michaelmas, for every thing to be done by the Articles, was to be done before Michaelmas, Hill. 37. Eliz. Rot. 99. B. R. between Mills and Parsons: A man covenanted in consideration of 42 l. rent to be granted to him, payable at Mich. and Lady day, yearly, to levy a fine of a Mannor to the use of &c. and the assurance of the Rent is not made before Michaelmas, and it was resol∣ved that the Covenant was not performed, for the grant of the Rent ought to be before Mich. for otherwise he could not have the benefit intended, and cited also Dyer 347. and 20 Eliz. Dyer 361. and in this case there could be Page  200 no execution of other Articles if the Councel did not devise them before Mich.

But it hath been objected that the Plaintiff have not fully shown the per∣formance of the Covenants of their part, but only by implication, albeit they have performed, and they have not averred that the Defendant hath not de∣vised.

Answ. To which I answer, that this is good enough; but where I co∣venant to do an act upon a future contingent act to be done by another, there I ougt to show it particularly, but otherwise in this Case, and this is for the benefit of the Defendant, and therefore he ought to shew it, and to this pur∣pose is 3. E. 3, Fitz. Det. 157. and 18, E. 3. 4. &c. Jones Iustice, Suppose the Defendant had demanded the assurance after Mich: and before the sale what shall be done: Noy, nothing can be done after Michaelmas: and it was adjourned.

The same Term in the same Court. Sanders and others, versus Meryton.

IN an Action of Covenant the case was this, Amongst other Covenants in a certain Indenture made between Sanders and others to the Lessees, and his two Lessors, the Lessors covenant to discharge them of all Incumbrances done by them or any other person, and the Plaintiff assign for breach, that one of the Lessors had made a Lease, and thereupon they brought this Action. And Goldsmith moved in arrest of Iudgement, that the breach was not well layd, because it is onely layd to be done by one of them, and the Covenant is to discharge them of incumbrances done by them, which shall be intended joynt incumbrances. Doderidge Iustice, the Cove∣nant goes aswell to Incumbrances done severally as joyntly, for it is of all incumbrances done by them or any other person, and so was the opinion of the other Iustices, and therefore the exception was over-ruled.

The same Term in the same Court. Dickar versus Moland.

IN Replevin, the case was thus: A man made a Feoffment to the use of himselfe for life, the remainder to his Son in taile, which remainder over to the Defendant made conusance as Bayliff to the Son for 4 s. Rent due to him before the sayd time, in which, &c. to wit, 1. Jan. 18. Jac. which time was before the death of the Feoffor, whereupon it was moved for the Plaintiff, that the Avowry could not be good, and Roll argued for the Defendant, that it is good enough, for the Ante predictum tempus quo &c. is good enough, and the (scilicet) is voyd, for by this it appears that the Rent is due to ano∣ther 20. H. 6. 15. And a (scilicet) is but an Exposition of that which is once before, and it shall not destroy the precedent matter, but if it be con∣trary to it, it is voyd, Co. lib. 5. Knights case, A scilicet shall not make an Page  204 alteration of that which went before, 15. Jac. B. R. Desmond and Iohnsons Case. In a Trover and Conversion the Plaintiffe declared that he was pos∣sessed of the said goods. 1 Jan. 15. Jac. and that Postea, scil. the first day of May hee in the yeare aforesaid lost them, and that they came to the hands of the Defendant, and upon issue joyned, it was found for the Plaintiffe, and this was moved in arrest of Judgement, and by the Court the (scil.) was agreed to be void, and the Postea good; and the like case was 17. Jac. in Debt. The second Question is, a man makes Conusance for Rent for him in remainder in taile, and does not alledge the precise time when the Lessee for life died, but onely that he died, and I conceive that it is well enough.

1. Because an Avowry (which is in lieu of an action) is a reall action, and in reall actions no precise day need to be alledged.

2. Because he avows for 4 s. rent due, and the arreare to the remainder, which implies that the Lessee for life is dead; See 14. Eliz. Dyer. The case of a person, in one Arundalls case; a man was Lessee for ninty years, if the Lady Morley should so long live, in an action brought by him as Lessee for years, in his Declaration he did not averre that the Lady Morley was alive, and yet awarded good, Trin. 12. Jac. in Hord and Paramores case, the defen∣dant avowed as Heir of Sir John Arundell, and alledged no time incertaine of the death of Sir John Arundell, and yet awarded good for the reason afore∣said, and therefore he prayed Judgment for the Avowant.

The same Terme in the same Court. Jenkin versus Vivian.

IN trespas, Jermy for the Plaintiff took some exceptions to the Plea of the * Defendant: 1. That the Defendant claim common in Trigemore Moore ratione Vicinagii, and doth not say, a tempore cujus contrarium memoria hominum non existit. 2. The Defendant alledgeth that he and all his Occu∣piers of Down-close had used to have common in the said Tridgemore Moore &c. whereas he ought to have shown what estate they had in Down-close who have used to have this cōmon: Rol. there néed no prescriptiōin this case, no more then in a cōmon appendant (which case of a cōmon appendāt was agreed by the whole Court) for it is mixt, 6. E. 4. 55. Co. lib. Intr. 625. tit. trespas. For the 2. ex∣ception, I agree that if it be by way of prescription, then it is not good, as it is alledged here, but if it be by way of custome (as here it is) then it is good, for a custome goes to Land, and a Prescription to persons, Hill. 11. Jac. Higgs brought an Action upon the Case for erecting of a new Mill, and alledged a Custome, that he and all the Inhabitants &c. an exception was taken to it, and it was there ruled that it was good, because alledged by way of cu∣stome: Co. lib. 6. Gatewards case, and also Mich. 14. Jac. it way be al∣ledged by way of custom, as our case is, and 15. E. 4. when it is by way of dis∣charge, it may be alledged in all Occupiers, Jermy for the Plaintiff, It cannot be a custom here, for as it is in 23. Eliz. Dyer, A custom cannot ex∣tend to a particular place, and this was agreed by the whole Court: But there is another exception, he clayms common in Tridgemore Moore for cat∣tle levant and couchant in Down-close, and does not aver, that these beasts were levant and couchant upon Down-close, and per totam Curiam, this ought to be averred, and it was also agreed that in this case he ought to have pre∣scribed: But for the exception of all occupiers it was doubted: but for the other exceptions Iudgment was given for the Plaintiff.

The same Term in the same Court. Chambers Case.

IT was said in this case, that in debt upon a Recognizance acknowledged in Chancery, or in any other Court, the Defendant cannot demand Oyer of the condition, for the Recognizance is not in Court as an obligation is, when debt is brought upon it: But if Debt be brought upon a Recognizance ac∣knowledged in this Court, then the Defendant may demand Oyer of the Recognizance.

The same Term in the same Court, Harison versus Errington.

IN Error to reverse an Inditement of rescous and Riot, taken in the County Palatine of Durham, Bankes assigned the Errors, whereof one was, ther• was a Warrant to three conjunctim, & div•sim to arrest the sayd Harison, and two of them arrest him, and therefore the Arrest was not well done, for it ought to have been by one, or all three, and the reason is, because it is a ministeriall act, otherwise if it had been a judiciall act, 14. H. 4. 34.

2. The Inditement of Riot was against three, and the Iury found only one of them guilty of the •••ot, this is a voyd verdict, for one alone cannot make a riot, like to the case in 11. H. 4. 2. Conspiracy against two, and only one of them is found guilty, it is voyd, for one alone cannot conspire. And at ano∣ther day in the same Term Noy took other exceptions.

1. Because the Inditement is Jurator, pro Domino Rege presentant. &c. and doth not say, that 12. Iurors presentant, and peradventure but 11. did present.

2. The names of the Iurors ought to have been certified, for peradven∣ture they are not probe & legales homines, but Villains and Outlawes, 15. H. 4. 41.

3. It is sound that Rolson the Sheriff by vertue of a Writ directed to him, came, &c. and upon this rescous was made by Harrison &c. and it doth not appear what manner of Writ it was, scilicet, Elegit: Capias ad satisfaciend. on &c. and if there were no Writ there can be no rescous, and albeit he had a Writ, yet if execution were done by vertue of another Writ which he had, the Party may disobey it, as if upon an habere facias seisinam, the Sheriff makes a Warrant as upon a Capias, the party is not bound to obey the Bay∣liffe, if hee bee not a Bayliffe knowne; but in case it appeares they were only Bayliffs pro hac Vice. Nota, that an Inditement before Coron•rs, which found that the Earl of B. was felo de se, was quasht, because it did not appear that it was per sacramentum probor. & legal. hominum: And in the case of Sarum, this Term an Inditement was quasht for the same cause.

The same Term in the same Court. Rochester versus Rickhouse.

IN a writ of Error to reverse a Judgement given in Ejectione firmae in New∣castle, Banks assigned these errors.

1. The Plaintiffe declares of a Lease made de Burg. sine Tent. which is not good, no more then in Ejectione firmae de Mess▪ sive Tent.

2. Because the Judgement is not quod capitur as it ought to be, because it is vi & armis.

3. The judgement is Ideo concessum est, where it ought to be consideratus est, and for these Errors the Judgement was reversed: And the same day another Judgement between Bell and Margery Strongury was reversed for the same causes.

The same Term in the same Court. Petit versus Robinson.

IN Error to reverse a Iudgment given in C. B. in a Replevin, there Jermy for the Plaintiff assigned two Errors:

1. It appears, that after the Writ and before the triall, it was coram Justiciar. Dic. Domini Regis, and there was not any speech of any King but of King James before, and there is no speech of his demise, and therefore this shall be intended before the Iustices of King James, which cannot be.

2. Because the Nisi prius is certified to be tried before Francisco Harvey, Mill. uno Justiciar. &c. & the Postea returned, is before Francisco Harvey Arm. argued & so there was no such Iudge of Nisi prius as Francis Harvey: Banks for the Defendant, I conceive the first errors to be because the adjournment was per br. Dom. Reg. and King James was named before, so that the objection may be, that it shall be intended the Writ of Adjournment of King James, which cannot be, but I conceive the Writ is generall, and shall not be intended, •hat it can be adjourned by the Kings Writ who was dead before, and the Clerk of the Assises who certified it, is bound to take notice of the Kings death, 37. H. 6. 28. and also the Record is not per br. Dic. Dom. Regis, but per br. Domini Regis, generally. And for the second, I conceive it is no error, and if it be error, then if the Certificate be not according to the Copy, out of which the Clerke certifies, it shall be amended, 22. E. 4 22. 35. H. 6. 23. b. Co. lib. 8. 136. Blackmores case, which is a stronger case then this. But it hath been objected, that the Record is certified by the Iustices, and now there can be no averment to the contrary; but I conceive that this Court may send to the Clark of the Assizes to amend it, and those objections were over-ruled in C. B. in the same case. Doderidge Iustice, I conceive that notwithstanding these exceptions the Iudgement ought to be affirmed, for as to the first, the Court is bound to take notice of the demise of the King, and therefore it shall be intended the King that now is, and so the Writ of ad•ournment good enough, in Dyer. King Henry 8. made a Patent, and it was E•ricus Dei gra∣tia, &c. where it should be Henricus, and yet the Patent good; so in a Writ to the Bishop, the subscription is, Episcop. Norw. this is good enough, for the Bishop of Norwich is very well known. And for the other, I conceive it is not well alledged, because it is not showne whether he were a Knight at the time of the Certificate or not, and so it may well stand together, that he was a Knight, for he might be an Esquire at the time of the triall, and before Page  [unnumbered] the Record certified might be made Knight, Jones Iustice to the same intent, and that we ought to take notice of the demise of the King, & therefore it shall be intended of the Writ of adjournment of the King which now is, and there∣fore it is no error, and yet if it were, it were amendable: Whitlock Iustice agreed, and therefore the Iudgement was affirmed by the whole Court.

The same Term in the same Court. Crabbe and his Wife versus Tooker.

IN Covenant betweene Walter Crabbe and Anne his Wife, against Tooker, the covenant upon which the breach was layd, was this, Tooker the Defen∣dant covenanted with Tooker his Son, and Anne Slade (one of the Plaintiffs, whom he intended to marry) to give them their meat and drink in his house, and if any discontent should happen between the Father and Son, so that he, and his Wife Anne should disagree to dwell with Tooker the Father, then they should have 6. Beasts gates, &c. Tooker the Son died, Anne disagree to dwell with Tooker the Father, and marries with Crabbe, who with h•s Wife Anne brings this Action, and Taylor argued for the Planitiff that the Action lies, for albeit the Covenant be in the conjunctive (if they disagree) yet it shall have a disjunctive interpretation, as where a man covenant to levy a fine to one and his heirs, if he dies the Covenantor may levy a fine to his Heirs, and Hill and Granges case in Plow. Two Tenants in common grant a rent, this shall be taken for severall Rents, and Co. lib. 5. Slingesbyes case, also the Wife is party to this covenant, and she must either have remedy upon this covenant, after the death of her Husband, or not at all, for she cannot disa∣gree in the life time of her Husband per que, &c.

And it was agreed on the other side, that there ought to be a dislike be∣tween all joyntly, the Father, the Son, and the Wife: and now one of them being dead, the covenant is discharged, like to the case put in Brudenels case, Co. lib. 5. If Administration be grant during the minority of 3 if one of them dies, the administration ceaseth, and 31. Eliz. in C. B. A Lease was made to three, and the Lessor grants to them to be dispunishable of Wast quamdiu co∣habitarent, one of them dies, and it was resolved, that now they shall be liable to wast. Also the Bar is not bone, for it is pleaded that Discordia orta fuit, and doth not shew what manner of discord this was, and therefore not good; as 3 H 6. In Annuity brought Pro concilio, &c. he ought to shew for what manner of Councel it was: Whitlock Justice was of opinion for the Plaintiff, and that this Covenant extends to the Wife, and that upon equall construction, because it comes in place of the first Covenant, and this was in∣tended for the benefit of the Wife, as well after the death of the Husband as before: Jones Justice was of the contrary opinion, and that the second cove∣nant was a severall covenant from the first, and that the disagreement is to be made by all three joyntly, and that when one dies the Covenant is gone, 2. Eliz. Dyer, A man will that A. B. and C. his Feoffees shall sell his Land, B. dies, now the Authority is determined. The Lord Gray committed the custody of his Son to four, one of them dies, the authority is gone, and in this case there is no matter of interest, but an agreement, and in such a case as this is a Feme covert, hath a will, albeit she hath no legall will; but in this case there ought to be a disagreement of both, and there ought to be a dislike of the Father also, and in the Declaration it is also said, that she dis-agreed. Doderidge agreed with Jones, that •he Declaration is not good, and that it is not warranted by the Covenant, and that the breach is not well assigned. The case is grounded upon the second covenant which consists upon a contingency Page  205 which contingency is, if there happen any discord between the Father and the Son, &c. the words are joynt, and all ought to disagree: True it is, that in some cases a conjunctive shall be taken for a disjunctive, but this is accor∣ding to the matter and circumstances of the fact, but in our case it shall not be taken disjunctively. If the Father, the Son, and the Wife had disagreed, then it is cleer that an Action of covenant lies, but this is casus omissus, and no provision for it. Also it is only alledged in the Declaration, that she dis∣agreed, whereas a mutuall disagreement between all ought to be alledged, and therefore Judgement was given Quod quaerens mil. capiat per bellam. But all agreed, that the Wife might have boarded with Tooker the Father, if she would, but her new Husband could not.

AT thowe Sergeant took divers exceptions to an Inditement of forcible entry upon the Stat. of 8. H. 6. against Ployden and others for expelling one Syms from his Copi-hold, and the principall exception was, because (dis∣seisivit) was not in the Inditement, and in truth it cannot, for albeit the Stat. of 21. Jac. cap. 15. gives power to Iudges and Iustices of Peace to give restitution of possession to Tenants for yeares, and Copy-holders, in which there shal be an entry, or detainer by force, yet the Stat. does not give an In∣ditement of forcible entry of copy-hold. Noy, a Copy-holder shal now have an Iditement of forcible entry, but (disseisivit) shal not be in it, for no Iury will find that because it is not possible, because a Copy-holder hath no Frée-hold, and yet a Copy-holder shall have a Plaint in nature of an Assize against a stranger, but not against the Lord: And at last the opinion of the Court was, that the Inditement was good.

UPon a Capias directed to the Sheriff of London to take the body of J. S. the Capias was returnable die Jovis, which was the day of All-souls, and thereupon the Sheriff took the party, but he returned, that because the return of the Writ was upon a day that was not Dies Juridicus, he suf∣fered the party to go at large: And the return was holden insufficient, for by Doderidge the Writ was good, and the taking and detaining of the party by vertue thereof was lawfull, but yet he could not have the party there at the sayd day, and therefore the Sheriff was compelled to bring the party into Court, which the same day he did accordingly.

The same Term in the same Court.

A Man granted a Rent charge of 12 l. to one of his Sons out of the Man∣nor of D. by Déed, and died, the Grantée lost his Deed, the Land is extended to I. D. by vertue of a Recognizance acknowledged by the eldest Son of the Grantor, the Grantée sue for his Annuity before the Councell of York to be relieved in equity, for that in respect of the losse of the Déed he could not have remedy at the common-Law, and J. D. the Conuzée obtained a prohibition out of this Court upon this surmize, that although the Councel of York should make a Decree, that he should pay the said Annuity, yet it should be no discharge for so much against the Conuzor, because their Decrée was no legall eviction. Now came Smith of the Temple, and prayed a Precedendo for the Grantée to the Councel of York, and the opinion of the whole Court was, that a Decrée, there being no legall eviction, shall not be a discharge for so much against the Conuzor. Doderidge, the Grantée of the Rent-charge, having now lost his Déed can have Page  206 no remedy in equity, for in this case Equitas sequitur legem, and of the same opinion were Jones and Whitlock: but by Doderidge (which was not denied) if the Grantee had lost the Deed by a casuall losse, as by fir• &c. in such a case he shall have remedy in equity: and he sayd, that in the beginning of King James, when Egerton was Lord Chancellor, there was such a Case in Chancery: A Grantee of a rent-seck had seisen of it, so that he might have an assize, and he devised it to J. S. the Devisée sued in Chancery to have his Rent and seizen of it, and he could have no remedy for it in Chancery: And this was one Malleryes case.

The same Term in the same Court.

ONe Hebborne was indited for stopping a way, &c. and it was mooved that the inditement was insufficient, because it is not layd that it was communis via, but only that it was a way to the Church, and per Curiam, it was good enough, and by Jones Iustice the Inditement is good enough, al∣though there wants vi & armis, because he who is supposed to stop the way, is owner of the Land.

The same Term in the same Court.

AN Action upon the Case, upon a promise was brought in the Town of Northampton, and the Consideration alledged was, that if the Defen∣dant here in the Writ of Errour, would discharge Bagnot of Execution, &c. that then the Plaintiff here in this Writ of Errour promised to pay him eleven pounds, and there the Defendant pleaded, quod exoneravit illum de Executione relaxavit, And Bolstred, for the Plaintiffe moved this for Errours, that the Plaintiffe in the inferiour Court did not shew by what manner of release it was, nor that it was by writing; for this being the Consideration upon which the Action is grounded, ought to be put in certain, Mich. 15. Iac. Staple and King, Execution of a consideration ought to be shown▪ 35 H. 6. 19. a dis∣charge ought to be shown in certain, 22 E. 4. 43. the Lord Lisles Case, and Mich. 16. Iac. in this Court Liverel and Rivets Case (which was entred, Trin. 16. Iac. Rot. 32•) in an Action upon the Case, upon a promise up∣on issue joyned, it was found for the Plaintiffe, and it was moved in arrest of Judgement, because the Consideration was, that the Plaintiffe should dis∣charge one Ogle, and he declares, that he did discharge him, and thereupon he brought this Action, and because he declared but generally, quod exonera∣vit, the Judgement for that very cause was stayed, and 36 Eliz. one covenan∣ted to make an assurance, and pleaded generally that he had assured, and re∣solved that it was not good, and in Rosse and Harvies Case this Term (which was entred, Trin. 2 Car. Rot. 1408.) In Covenant the Defendant covenanted to give security, the Defendant pleaded that he offered security, and resolved that it was not good, per que &c. Jermy for the Defendant, that the plea is good enough▪ for a Release by Peroll is sufficient, I will remember but one book, upon which I will rely, 27. H. 8. 24. Jordons Case, in an Action up∣on the Case, the Defendant assumed to the Plaintiffe, that if the Plaintiffe would discharge I. T. of such an Execution in which he is bound at the suit of the Plaintiffe, then if I. T. did not satisfie the Plaintiffe by such a day, the Defendant would do it, and they were at Issue upon an Assumpsit, and there the Count is admitted good, and he need not plead it was by writing, because Page  207 the Discharge is good without writing, but it hath been resolved, that if a man be in execution at my suit, and I go to the Sheriffe and command him to discharge the Party, this is a good Discharge, although it be by Peroll, Jones. If I say to the Sheriff, suffer the party to go at large, this is a good re∣lease both to the party and to the Sheriffe, and by him (relaxavit) implies a sufficient release, and therefore the Plaintiffe in the Writ of Errour shall be barred. And if a man be bound to save one harmlesse in an Action brought upon this obligation, he pleads that he hath saved him harmlesse, and shews not how, the Plaintiffe demurres generally, he shall not now take advantage of it, Doderidge. The Cases put by Bolstred are not to this purpose, for all those cases are of things in certaine, and he agreed that a release by perol was suf∣ficient, and the case of 22. H. 8. is a stronger case then this is. Whitlock agreed also, and therefore Doderidge advised the Plaintiff to be satisfied, or otherwise they would affirm the first Judgement.

Trin 2. Car. in the Kings Bench. Caryes Case.

IN Caryes case of Grayes Inne (where these words were adjudged actionable, You a Councellor? a Foole, an Asse, a Hangman, a Councellor of Law, a Foole in the Profession) it was said by Jones Instice, it was not sufficient to say, that he was eruditus in Lege, but he ought to say that he was Homo Con∣ciliarius: and he said that in maintainance against Boughton, it came in question upon evidence to a Iury whether one who is a Barrister may give advice, and it was ruled that he could not, albeit he had Letters Patents to inable him as fully as if he had been called to the Bar: and in Fleetwoods case adjudged, that these words (You the Kings Receiver? you are his Deceiver, are you not?) were actionable.

The same Term in the same Court.

SIr Tho. Savill was indited for breach of the peace within the Pallace, to wit, for assaulting Sir Fran: Wortley, and he pleaded his pardon, and Doderidge said, that to strike in the place was the losse of the right hand by the Law, and in this poynt our Law agrees with the Lawes of France and Spain, and all other Nations, for as the person of the King, so his Palace and courts of Iustice are so sacred, that such contempts and affronts are judged worthy of such punishments, and said that the Book of 24. E. 3. 33. Fitzherbert Forfeiture, 22. (of which he would have Students to take no∣tice) is that where one came into the Palace armed, and being brought to the Barre in his compleat armor, the cause was demanded, and he said that it was in his own defence, being in fear of a great man then in Court, and he was committed to Prison by the Court during the Kings pleasure, and his Lands forfeited during his life. Vide for the like matter, 41. E. 3. Fitzh. Coron. 280. Dyer 188. 22. E. 3. 13.

Hillar. 2. Car. in the Kings Bench.

ONe Mathias Wheelhorse was indited at the Sessions of the Peace, hol∣den in the Town of Northampton. quia Noctivagus, and because he di∣vers dayes and nights did frequent the house of &c. which was within the li∣berties of Southampton, and was a suspected Bawdy-house: and Crawley Sergeant moved that this Inditement was insufficient for three reasons.

1. Because it does not appeare in the Inditement, that the party knew this to be a Bawdy-house.

2. Because it is not said that it was a Bawdy-house, but that it was sus∣spected to be a Bawdy-house.

3. Because the Inditement is before Iustices of Peace, Villae de Nor∣thampt. and the house is infra libertates Villae de Northampt. and it shall not be intended that the power of the Iustices of Peace extend thither, and for it see Co. lib 5. 120. Longs case. 13. H. 7. 33. 34. 22. H. 7. Kelleway 89. Co. lib. 9. Mackaleys case: And the Court gave no opinion concerning the ex∣ceptions: But another thing was moved, to wit, that one could not be in∣dited before Iustices of peace for being Noctivagus, but this is to be inquired of in the Leet, and in this the whole Court was against him, for it is a mis∣demeanor, and it is contrary to the Statute of Winchester, and every one may arrest him: And at another day he moved this last exception again, and sayd that the Iustices of Peace have no power to fine men that are noctiva∣gant, yet true it is, that a Court-Leet hath such a power, Rastol. Leet 2. and true it is also, (as it is in 4. H. 7. 1. 2.) that every one may arrest a Night-walker, but there it is said that if he appeareth to be a man of good fame, the party who arrests him ought to let him go at large; and the Inditement here is only that he was Noctivagus, & it appears not that he is a suspicious Night-walker: & by Doderidge & Whitlock Iustices (only present) by the Common Law every man may arrest him who is Noctivagus, and the word (Nocti∣vagus) implies that he was a common▪ Night-walker, and they sayd that Iu∣stices of peace by their Commission have power to take such Inditements, for it is of ill behaviour, and albeit the Inditement were nought for the o∣ther exceptions, yet being good in this, it shall not be quasht, and therefore Iudgement was given upon it, and the party fined 40 s.

The same Term in the same Court. Sparrow versus Sherwood.

IN Trover and Conversion of two loads of Fitches of certain Land &c. The Defendant justifie by the command of Hare, to whom part of the Land belongs; and to one Pots, to whom another part in right of the Lady his Wife belongs, and shews that part of the Fitches did grow upon the Land of one, and part upon the Land of the other, and upon this the Plain∣tiff demurs:

1. Because he justifies by the command of two generally, and he cannot justifie upon the Land of the one by the command of the other, and therefore he ought to have alledged severall commands.

2. Because he does not shew particularly upon whose Land the Fitches grew, but that part grew upon the Land of one, and part upon the Land of the other, which is incertain.

Page  209 3. Because the Wife of Pots is called by the name of Lady, and the Wife of an Esquire cannot be a Lady: Doderidge and Whitlock onely present, for the first were of opinion, that it was good enough; for al∣though it were a joynt command, yet the parties commanding having seve∣rall titles, it shall be taken as severall commands, reddendo singula singulis: and for the third it is good enough, being in a Plea, otherwise, if it had been in a Writ: But for the second Exception, the bar is not good enough, because incertain, so that although upon other Exceptions moved by the Defendant, the Replication of the Plaintiff was not good, yet the Defendants Bar being ill, the Plaintiff shall have Iudgement upon t•e Declaration: And the Plaintiff had Iudgement accordingly.

The same Term in the same Court Risley versus Hains.

IN an Action upon the Case, upon an assumpsit, the Plaintiffe declared up∣on the Sale of several parcells of Tobacco, to wit, for one parcell so much, for another parcell so much, and so forward, and in the Conclusion he saith, quae quidem separales summae in toto se attingunt, to 55. l. which (being com∣puted) is lesse then the pariculars, and upon non assumpsit it was found for the Plaintiffe, and now Andrewes moved in arrest of Judgement, for that the particulars, and the summing up of them differs, and this being in a De∣claration (which ought to contain truth) it is not good, and so there appears to be no cause of action, 35. H. 8. Dyer 55. And Grices Case, in the very point Mich. 17. Jac. in this Court, but by Jones and Whitlock Iustices onely present, the Declaration is good enough, for there is a particular promise for every parcell, and the summing up of particulars is only surplusage and officiousness of the Clark, therefore the Iudgement was affirmed: And nota, that Jones said obiter in this Case, that upon a contract, the Party to whom payment is to be made, need not make request, and afterwards it was agreed by the whole Court, that it should be amended, otherwise it had been more.

The same Term in the same Court.

A Great multitude of Welsh-men were Indited for the death of a man, by an Inquisition taken before the Coroner in the County of Mountgo∣mery in Wales, and Littleton of Councel with the Welsh-men took some Exceptions to the Inquisition: as, 1. That the Coroner cannot take any Inquest, unlesse it be super visum corporis, and to this purpose he cited Brit∣ton, 6. Ric. 2. Coron. 107. 21. E. 4. 70. 2. Ric. 3. 2. This also is the reason that, if a man drown himselfe, and cannot be found, the Coroner cannot enquire of the death of this man: but for the King to have a forfeiture of his Goods, an Inquisition ought to be taken before the Iustices of Peace, as it was resolved in this Court, Trin. 13. Jac. upon which the first exception was, that the Inqui∣sition was taken at D. in the time of King James, super visum corporis, in D. in the time of this King, and for this he cited two presidents out of Cookes Booke of E•tryes: Another Exception was, because Page  210 the Inquisition was per Sacramentum probor. & legal. hominum Com. predict. whereas by the Stat. of 4. E. 1. this inquest ought to be by men of the four Towns next adjoyning, and this ought to appear in the Inditement also Hill. 10. Jac. Rot. 3. Co. lib. Intr. 354. And day was given to the Attorney General, to maintain this Inquisition: But afterwards Pasch. 3. Car. the In∣ditement was quashed, especially for the first exception.

The same Term in the same Court, King versus Merrick.

In an Action upon the Case for these words, I charge you King with Felony, and you Constable (inuendo Thomas Legat) to apprehend him: And a verdict for the Plaintiff. It was moved in arrest of Iudgement by Bacon, that the words are not actionable: The first words are not, because they are not an expresse affirmation, and for this he cited Mich. 11. Jac. in this Court Powel and Bauds case, where an action was brought for these words, I have arrested Powel of Felony, for stealing sheep of mine, and adjudged not actio∣nable.

Also the Plaintiff did not shew in his Declaration what kinde of felony this was, and it may be such a felony for which an Action will not lie; for there are divers kinds of felony, and a Mayhem is one kind, as appears in 40. Ass. Pl. 4. 6. H. 7. 1 and in this case it shall be taken in mitiori sensu, and it shall not be intended such a felony for which he may be hanged: If one charge another with felony, because he hath committed a Mayhem, it is cleer that an action will not lye.

And the other words, (I charge you Constable to apprehend him) are not actionable, and the words are onely spoken to the Plaintiff: Also the words are layd to be spoken in London, and it appears that the Constable was of a Town in Norfolk, who cannot apprehend any one in London. Earle for the Plaintiff. It hath been argued that the words are not actionable, because felony is a generall word and contains in it selfe a mayhem also; But I con∣ceive that in this case felony shall be taken according to the general and com∣mon acceptation, which is such a Felony for which a man may loose his life, and for this he cited Co. lib. 4. 15. b. Yeomans charged Hext, for my ground in Allerton Hext seeks my life, and if I could find Iohn Silver, I do not doubt but within two dayes to arrest him upon suspition of Felony: and it was ad∣judged that for the last words the Action lies, because he shall be imprisoned for suspition of felony, and felony is there taken according to the common acceptation of the word.

It hath been objected that there is no expresse affirmation of the Felony, but I conceive that there is, 39. Eliz. Action was brought for these words; I will call him in question for poysoning my Aunt, and adjudged that it lyes, and Mich. 37. and 38. Eliz. Woodrofe and Vaughans case for these words: I did not know Mr. Woodrofe was your Brother, I will prove him perjured, or else I will bear his charges: and adjudged actionable. And Hill. 44. Eliz. Rot. 351. This man (inuendo Iohn Latham) hath cut my Wives purse, and his Father knowing of it received it of him, and the Money and Rings theein, and therefore I charge him of flat Felony: and resolved that for these words, (did cut my Wife's purse) no action lies, for the cutting of ones purse only is not felony, unlesse it be taken from the person; and to receive one is not Felony, but resolved that the last words were actionoble, and then Page  211 it was agreed, that if one say, that I. S. did see such a one that had committed felony, and did suffer him to slip away, I charge him of Felony, these words are not actionable, and Mich. 20. Jac. in this Court that these words (beare witnesse, I arrest him of felony) are actionable, and therefore he praye• judge∣ment for the Plaintiff. Doderidge Iustice, the words are not actionable: And Hexts case comes not to this case, for there by the word (Felony) it was manifest what Felony he intended by the circumstances of the speech; to wit, that he ment such felony, for which he might lose his life; But the words here being generall of Felony, it may be intended as well of a Mayhem a• of any other Felony; for in an appeal of Mayhem, he is arraigned as Felo Domici Regis 40. Ass. and the other case of 44. Eliz. I do arrest him of flat Fe∣lony, is not consonant with the reason of this case, for there by the arrest, his liberty is taken away, but in this case there is no restraint, and it is very hard to make these cases agree together, for words are as variable as the faces of men &c. Jones Justice agreed, and he took it for a ge∣nerall rule, that where words carry a double sense, and there is nothing to guide the sense more one way then another, there the words are not actiona∣ble, for finis est legis dirimire lites And therefore if one faith of another, that he hath the Pox, because the sense is ambiguous, it sh•ll be interpreted in mitiori sensu, and therefore the words are not actionable, to if one sayes of another, that he hath stolen his Apples, or his Corn, because they may be Apples from the tree, or Corn in the field, the taking whereof is no felony: but it was adjudged in the Common-Pleas, when I was there, that these words viz. Thou art a Thief, and hast stolen my Corn, are actionable, by rea∣son of the addition of the word Thiefe.

So that the speaking of words of a double sense are not actionable, unlesse ex antecedentibus, or consequentibus, it can be collected that the words were spoken in pejori sensu: Then the words in this case (I charge you with Felony) peradventure intend such a Felony, for which he shall re∣cover damages only, which is Mayhem, and therefore no action will lie. These words (Thou art forsworn) are not actionable, because forswearing may be in ordinary communication, or in a Court of Justice, and it shall be taken in mitiori sensu: but if he sayes, Thou art forsworn in a Court of Re∣cord, it is actionable, and if in this case he had charged him with Felony, and sayd further that he had stolen, &c. they would have been actionable, but here he only charges him with Felony, which is an ambiguous word; and also it is no direct affirmation, and therefore not actionable, and Iudgement was given Quod quaerens nil capiat per Billam.

The same Term in the same Court. Goods Case.

GOod and his Wife brought a Writ of Error upon a Judgement, given in the Court of the Castle of Windsor, in an Action of Debt there, which was entered Trin. Mich. 2 Car. Rot. 119. 120. and two Errors were assign∣ed. 1. Because the Judgement there is given in these words, ideo consideratum ad judicatum, & assessum est, whereas it ought to be onely by the word consi∣deratum, and the Judgement being the act of the Court, the Law is precise in it, and therefore it hath been resolved, that a Judgement given by the word (concessum) is not good, but it ought to be by the word (consideratum) Page  212 2. The costs ex incremento, are not said to be given, ad petitionem quaerentis, a• it ought to be, for beneficium nemini obt ruditur, and therefore it hath been resolved in this Court, that an alien born shall not have medietatem linguae, if he does not request it, and as to this it was answered of the other side, that costs ought alwayes to be ass•ssed ex petitione quaerentis, and albeit here the request of the Plaintiff was not precisely put to increase of the costs, yet at the beginning of the Judgement it is said, Ideo ad petitionem quaerentis cons••eratum. &c. And that costs shall be given ex in cremento, so that this request goes to all the Sentence, and by the unanimous opinion of all the Court, the Judge∣ment was reversed for both the Errourrs, for 1. Ideo considerat. adjudicat. &c. is not good, the Judgement being the Act of the Court, and the Law hath appointed in what words it shall be given, and if other words should be suf∣fered, great incertainty and confusion would ensue, and need•esse verbosity is the mother of difficulty. 2. The increase of costs ought to be given ad peti∣tionem quaerentis, and the words (ad petitionem quaerentis) being misplaced▪ will not supply this defect, and Dammages ex incremento is alwayes given ad petitionem quaerent. for as Bracton saith, Omne judicium est trinus actus trium personarum, judicis, actoris, & rei, and if in this case, the usuall form should not be observed, all would be in a confusion, and in as much as the words are misplaced, it is as if they had not been put in at all, and therefore void, like to a case put in Walsinghams case in Plowden, where an averrement misplaced, is, as if there were none: In this case the Judgement was reversed, and Trin. 3 Car. in B. B. intr. Hill 2 Car. Rot 849. a judgement was reversed, because it was Ideo concessum & consideratum est.