Reports of that reverend and learned judge, Sir Humphry Winch Knight sometimes one of the judges of the Court of Common Pleas : containing many choice cases, and excellent matters touching declarations, pleadings, demurrers, judgements, and resolutions in points of law, in the foure last years of the raign of King James, faithfully translated out of an exact french copie, with two alphabetical, and necessary table, the one of the names of the cases, the other of the principal matters contained in this book.

Easter Term. 19. Jac.

IT was said by Warberton Iustice, that in the time when An∣derson was chief Justice of this Court, that it was adjudg∣ed, that where a Coppiholder alleadged a custom within a Man∣nor to be, that every Coppiholder may cut trees at his plea∣sure, that this custome is against common Law, and also his opinion was, that where a custome was alleadged to be, that if a Tenant in antient Demesne devise his land to another without other words expressing his intent, that the devisee shall have the fee simple: & Hobert inclined to this opinion, and by Hutton and Winch he shall have fee by the custome, and accordingly it was adjudged.

Norton against Lakins Ent. Hill. Jac.

NOrton against Lakins Ent. Hill. 18. Jac. in debt upon an obligation, the condi∣tion was to stand to the arbitrement of J. S. and the Defendant pleaded that he made no arbitrement, the Plantiff shewed the award and the breach. And the case in effect was, that the Plantiff and the Defendant put themselves upon the arbitrement of J. S. of all matters between them till the first of March 18. Iac. and he made an award that each shall release to the other matters and differences between them till the ninth day of March 18. Jac. and it was argued by Serjeant Henden that the award is void, for by their release the obligation upon which this action is brought is discharged: but it was ruled to be a good award, for though it shall be void for that part of the award, yet it shall be good for the rest; but Winch doubted of the case.

Reynolds against Poole; Ent. Hill. 18. Jac. Rot. 641.

REynolds against Pool Ent. Hill. 18. Iac. Rot. 641. Reynolds libelled in the spiritual Court against Pool, for the Tithes of a Park, and Pool prayed to have a prohibition, and he shewed that he, and all those whose estate he had in the Park, had held this as a Park till the 11. of Eliz. at which time it was disparked, and that time beyond memory &c. the occupiers had used to pay to the vicar of the parish a Buck in Summer, and a doe in winter in lieu and satisfaction of all Tithes due to the Vicar. And it was argued by Serjeant Henden, that this is not a sufficient cause to grant a prohibition, because that now the Park is destroyed and sowed, and so the prescription fails, for it was annexed to the Park: second∣ly

the question is for the Tithes of corn and those do appertain to the Parson and not to the Vicar, and he cited a case between Hawk and Collins in this Court; there the prescription was, that he and all those, whose estate he had, had used to pay to the Vicar a certain thing in le••u and satisfaction of all Tithes due to the Parson, and for this a prohibition was denyed.

Sherley: he had preserved that he had used to pay this to the Vicar, and this shall be intended for Tithes due to the Vicar, and not to the Parson: Serjeant Ashley to the contrary, and that the prescription is good for this extends to the soyle and not to the Park; Hobert said, that Tithes of corn are sometime payable to the Vicar, and not alwayes to the Parson; for put the case that at the time of the derivation of the Vicarage out of the Parsonage the composition was that the Vicar shall have the Tithes of that Park, in th••s case by reason of such general terms, he shall have the Tithe of hay, corn, deer, or any other thing which grows in that. And the composition being made before time of memory, no man can say but that it was made in such manner, and the case of Okenden Cowper in this Court, in which the Court was divided, differed from this case, for there the prescription was to pay a Buck arising and coming out of the Park, and there was no deer left in the Park: and Hutton agreed, for there he destroyed his own prescription, and he agreed with Bracies case put after, for there was a contrariety in the prescription. Warberton; the case of Bracie in this Court was, that the Parson libelled against him for the Tithe of corn, where this was due to the Vicar and not to the Parson and denyed him for that reason, for he may not plead the title of another man; and the Parson and the Vicar ought to agree among themselves; but in our case no Tithes are to be set out, and for that reason he may plead this, but it seems to me that the prescription shall go to the soyle, and not to the Park & when it is destroyed, he shall pay Tithes in kind as a garden or an orchard, so long as it is used as a garden or an orchard, that the occupier of that shall pay a peny: now if this be ploughed and converted to other use, he shall pay Tithes in kinde: and Hobert agreed to the case of the garden or orchard, for the penny is paid for the herbs or fruite. Winch was absent: and Hutton said, that the prescription shall go to the soyle, and the Vicar by prescription may have the herbs of the glbe of the Parson: Hobert, the Park is only an appellation or name of land, and this name or appellation may not pay Tithes, but the land it self: and put the case that a man had al-wayes paid 10. s. for the Tithes of a meadow, and after he sowed that with corn, here for the payment of this 10. s. he is discharged: War∣berton, I deny the case of the meadow; and so it was adjorned.

Bartlet against Bartlet, Trin Jac. Rot. 1784.

TR. 18. Iac. Rot. 1784. Richard Bartlet brought an action upon the case a∣gainst Thomas Bartlet, and he declared upon an accompt, and shewed that the Defendant was found in arrerages in 20. l. which he promised to pay when he should be requested, and now the Plantiff had not laid any day or place of request in his declaration, and Ashley moved in arrest of Iudgement, that the declaration is not good, for the request is also parcel of the promise: but Hobbert chief Iustice said, that when a man brings an action upon the case for a thing which was origi∣nally a debt, the Plantiff need not lay any time or place of the request, but when the action is brought for a Collateral thing, there he ought to lay a day and place of the request, and so it was adjudged according in the same case.

King against Bowen, Ent. Trin. Jac. Rot. 1755.

KIng againk Bowen entered Tr. 18. Iac. Rot. 1755. William King brought an action upon the case against Iohn Bowen for these slanderous words spoken of

him, King is a false foresworn knave and took a false oath against me at a commission at Witham, and the Defendant Iustified the words, and it was found for the Plan∣tiff, and Henden said, that it had been alleadged in arrest of Iudgement that the words are not actionable, and he said that he agreed if one say of another that he was foresworn in a Court which is not a Court of record, that none action will lye, because the party is not punishable for that in perjury, but in our case the commission issued out of the high Commission Court, which Court to the examina∣tion of witnesses is in nature of a temporal Court, and had been confirmed by act of Parliment: and Serjeant Harvey argued to the contrary, that the first words are not actionable, and then the subsequent words are uncertain, and yet if one say of another, that he was foresworn at the Common Pleas barre, the words are actionable, for it shall be intended that this was upon examination in the execution of Iustice: Hobert, if a man is foresworn in a Court Baron before the Steward, this is perjury, but in our case the words are altogether uncertain, for it doth not appear what authority the Commissioners had, nor yet in what manner he was forsworn; and Iustice Hutton said, if one man say of another he was foresworn before the Bishope of S. this is not actionable, but if one say of another, that he was forsworn before the Bishop of S. upon examination by him by vertue of a Commission issuing out of the Chancery, this is actionable, and Hutton agreed to the case of the Court Baron, & the same Law by him if that be in a Court Leete, but in the principal case Iudgement was arrested.

Wase against Pretty Ent. Hill. 16. Jac. Rot. 1716.

WAse against Pretty Ent. Hill. 16. Iac. Rot. 1716. in an ejectione firme, the case was, that one joynt Coppiholder did release to his companion, and the question was, whether this is good without surrender and admittance, for it was ob∣jected, if this shall be good, then a Coppihold shall pass without the assent of the Lord, but it was resolved by Hobert, Warberton and Winch (Hutton being absent) that the release is good, and Warberton said, that by Littleton, if 3. Ioyntenants are, and one of them release to another, he to whom the release is made is in by the releasor, but if there are but two, then he is in by the Lord or from the first con∣veyance; Winch, if two Ioyntenants are in capite, and one release, to the other, the King shall not have a fine for this Alienation; but Hobert said, that the practice is otherwise at this day, but he said, that when one joynt Tenant releases to another, he is in by the first conveyance, and in the case in question the release shall be good without surrender and admittance, for the first admittance is of them and of every of them, and the ability to release was from the first conveyance and admittance; it seems if a Tenant in Capite alien upon condition, and afterwards he enters for the condition broken, he shall not pay a fine for such an alienation: Hitcham Ser∣jeant said, that if land be given to two upon condition that they shall not alien, and one releaseth to the other, this is no breach of the condition; Hobert, if the King grant you his demeasnes, you shall not have his Copihold.

Winch said, that it was adjudged in this Court, that where one erected a house so high in Finsbury fields by the wind mills that the wind was stopped from them, that it was adjudged in this case that the house shall be broken down.

Goddard against Gilbert.

GOddard brought an action upon the case against Gilbert for these words, thou art a thiefe, and hast stolen 20 loads of my furzes, and upon not guilty pleaded it was found for the Plantiff, and it was moved in arrest of judgement by Hitcham, that these words are not actionable, for though the first words of themselves had

been actionable, yet when those words are coupled with other words which do extenuate them, it is then otherwayes, for if a man say thou art a thiefe and hast stollen my apples or my wood, it shall be intended that the apples and the wood were growing, and he said there is no difference to say in this case you are a thiefe and have stollen 20 loads of my furzes, but it was said by Iustice Warberton, that the furzes shall be intended to be cut, for that is the most natural and proper significa∣tion of the words; and Hobert chiefe Iustice said, that it is true that it is the most proper signification of the words, but yet they are furzes when they are growing as well as when they are cut down; and Hobert chief Iustice said, if a man say of another, thou art a thief, and hast stollen my corn; in this case the words shall be taken in the better sence, and judgement in the principal case ought to be arrested, and it was the opinion of him and of Winch, that there is no difference where a man said thou art a thief and hast &c. and thou art a thief, for &c. ut supra; but it was adjourned.

Winch Iustice said, I was of counsel in the Kings Bench in a case where a man had a window in the backside of his house, and another man erected a wall within a yard and half of that in his own ground, and adjudged in an action upon the case that the wall shall be broken down; Warberton, certainly this was an antient house, but Winch said that made no difference.

It was ruled, that after imparlance in debt, upon an obligation the Defendant shall be received to plead that he was alwayes ready to pay, notwithstanding it was strongly urged 13. Eliz. Dyer 306. is to the contrary.

Gilbert Lewings against Nicholas March.

GIlbert Lewings brought an action of covenant against Nicholas March, and de∣••lared, that Charles Cornwallis had granted the next avoydance to the Church of D. to Thomas March, and that Nicholas March was his Executor, and that Nicholas March assigned this to Gilbert Lewings his executors and assignes, to present to the same Church when that shall become void, and covenanted that the same person, who shall be so presented by him, shall have and enjoy that without the let or disturbance of the said Charles Cornwallis or Nicholas March, or any of them, or any by their procurement; and after Gilbert Lewings presents I. S. and after I. W. presented an other claiming the first and next avoydance, by the pro∣curement of Charles Cornwallis, and ruled that the declaration was not good, for it ought to say that Charles Cornwallis granted to I. w. the next avoydance and procured him to disturbe, and that by his procurement he was disturbed; Athow, It seems to me to be but little difference to say, he disseised me by the procurement of I. S. and he commanded I. S. to disseise me, and he did that accordingly at his command.

Sir Edward Sackvil against Earnsby.

VPon a motion made by Sir Randal Crew in the behalf of Sir Edward Sackvil against Earnsby, the case was, that two brothers were seised of land, to the eldest for life, the remainder to the youngest in tail, and they covenanted with Sir Edward Sackvil to levy a fine to him of that land, & before the fine acknowledged the eldest brother dyed, and the question was whether the youngest shall be compelled to levy the fine, and presidents were commanded to be searched concerning that matter.

Note, that it was said, that where a commission issued out of the Court of wards to 4 persons or to any 2 of them, and one of them refuse to be a Commissioner, and

the other 3 sit as Commissioners, and he who refused was sworn and examined by them as a witness, and ruled that this is good, for though he refused to be a Com∣missioner, yet he is not excluded to be sworn as a witness.

In evidence to the Iury the case was, that Tenant in taile bargained and sold his land to I. S. and his heires, and I. S. sold to the heire of the Tenant in taile being of full age, and Tenant in taile died, and the heire in taile claimed to hold his estate, and the doubt was, whether he was remitted or no? Hobert was of opi∣nion, that after the death of the Tenant in taile that the heire is remitted, for if Te∣nant in taile bargain and sell his land, the issue in taile may enter, and where his entrie is lawful, there if he happ•• the possession, he shall be remitted; Hutton and Warberton Iustices contrary. For at the first by the bargain and sale the son had fee, and then the estate of the son may not be changed by the death of the father, he being of full age when he took this estate, and this was in an Ejectione firme of land which concerns Sir Henry Compton and the Lord Morley and Mounteagle.

White against Williams.

VVHite brought an action of accompt against Williams as his Bayliff to his damages 100. l. the Defendant pleaded he never was his Bayliff, and it was found against him, and the Iudgement was given that he should render an ac∣compt, and at the day the Defendant made default; Ideo consideratum est per Curiam quod Querens recuperet versus predict. Defendent. 42. l. 10. s. and upon that the Defendant brought a writ of error, and assigned for error, that the Court gave Iudgement of the value without inquiring of the value, and it was holden by Gaudy and Fenner only present, that the Iudgement ought to be given which the Plantiff had counted of. Baron Altham contrarie, for the Court may in discretion give a lesser summe Hill. 43. Eliz. B. R. vide 14. E 3. Accompt 109. 20. E. 3. 17.

Sir George Topping against King.

VVAst was assigned in the cutting of Elmes and other Trees to such a price, and Iudgement was given for the Plantiff by nihil dicit, and a writ of in∣quiry of dammages issued upon that, and the Iury found to the dammages of 8. s. and upon this Davies the Kings Serjeant moved to have a new writ of inquiry, and that the old writ shall not be returned, for the dammages are too litle; Winch said, all is confessed by the nihil dicit. Hobert, The Iury here have found the value, and presidents were commanded to be searched, and Hobert said, that if an information is for ingrossing of 1000 quarters of corn, and Iudgement is given by nihil dicit, and a writ of enquiry issues which findes him guilty of 100. yet this is good. And not, that at another day the case was moved again, & it was between Sir George Topping and King, and it was said, if a man recover in waste by nihil dicit, and a writ of inquiry issues, the Iury in this case may inquire of the dammages but not of the place wasted, for this is confessed and so are the presidents according; and Hobert said, if the Defendant is bound by the nihil dicit as to the place wasted, for what cause shall not he be bound as to the dammages, and by all the Court if the jury finde dammages only to 8. s. the Plantiff shall not have Iudgement, for it ought to be above 40. s. Hob. this is in the discretion of the Court in this case, and it was also said in this case, that upon the grant of all the trees, and after the grantee cut them, and new ones grow upon the slumps which in time will be trees, that in this case the grantee shall have them also by Hobert.

Wetherly against Wells in an action for words.

VVEtherly against Wells in an action upon the case for these words, thou hast stollen hay from Mr. Bells racks, and upon not guilty pleaded it was found for the Plantiff, and now it was moved in arrest of Iudgement, because he had not shewed what quantity was of that, and perchance it may be of so little a value that it is not fellony, and the rather because it is hay from the Racks; but Hobert contrary, that Iudgement shall be given against the Defendant for the Plantiff, for it hath been adjudged lately in this Court, that where a man was charged with petty Larceny to steal under the value of 12. d. that an action of the case will lie, for the discredit is not in the value, but the taking of that with a fellonious in∣tent, and yet it had been adjudged in this Court, that where one said of another, thou art a thief, and hast stolen my trees, that in this case an action will not lie, but this is by reason of the subsequent words trees, for it is said Arbor dum crescit, lignum dum crescere nescit. And Winch said, that it had been adjudged action∣able to say, thou art a thief and hast stolen my corn, and yet perchance not exceed 2. or 3. grains, and Warberton said, that it had been adjudged in the Kings Bench, that where one said thou art a thief and stollest the corn out of my field, that no action will lie.

The Earl of Northumberland and the Earl of Devon.

NOte, that in the case of the Earle of Northumberland and the Earle of Devon. execution issued out for dammages recovered, against the Bayliff of the Earle of Northumberland by the name of I. S. of D. and there was I. S. the father and I. S. the son, and the father being dead the son issued his writ of Idemptitate nominis, and he prayed to have a supersedeas; and Warberton demanded of Brownlow if he had any such president to award a supersedeas in such case, who answered, no, and Warberton and Hutton being only present said, that they will advise of that.

Sir George Sparke Prescription.

IN a Replevin for the taking of a horse in 5. acres of land in such a place, and the Defendant avowed as Bayliff to Sir George Spark, and shewed that Sir George Spark, and all those whose estate he had in the land, had used time beyond the memory of man to have herbage and pasturage in all the 5. acres when that was not sowen, and upon this plea the Plantiff demurred; Ashley argued for the Plantiff, that the prescription is void, and this is not like to the case of a common, for a man may prescribe to have common in another mans land, for this is but a reception of the profits with the mouthes of his cattle, but in our case it is all one as to prescribe to have the land it self, and I may not prescribe to have land it self, for I may not say that I and my ancestors had used to have such land, for such a prescription is void: to which Hobert chief Iustice and all the Court agreed as to that point, and then to prove that this is all one as to prescribe to have the land it self, he said that if a man lets the profits, and the herbage of land for years, this is a lease of the land it self, as was lately adjudged in this Court; which was also granted by the Court, also he said that this appears by the 27. of H. 8. 12. that a man shall have a praecipe quod reddat of pasturage or herbage, but not of common, and a formedon lyes of pasturage 4. E. 4. 2. & the Regist. fo. 177. Ejectione firme lyes of pasturage; and so he concluded that upon the matter he prescribed to have the land it self; but Hobert chief Iustice and all the Court to the contrary, that

the prescription is good, for that may have a good beginning by grant, for a man may lawfully grant the pasturage and the feeding of his land when that is not sowed, and by consequence, if that may be good by grant, it may be good by prescription; and judgement was commanded to be entered for the Defendant. See prescription 51. and 52.

In trespass the Defendant pleaded in barre, that such a one was seised of land in the right of his wife, and that his wife died seised, and that he was heire to her, entered and gave Colour to the Plantiff, the Plantiff replied that the husband and wife were joyntly seised, and that the wife died, after whose death the husband was seised by Survivor-shipp, absque hoc that the wife died seised; and War∣berton and Hutton being only present, the traverse is not good, that the wife did not die seised, but it ought to be that she did not die sole seised.

In trespass for the taking of goods in a place in yorkshire, and the Defendant justified as servant to the Bishop of Durham, and he shewed that the Bishop of Durham had a Faire, and that time beyond memory he and his predecessors had used to seise the cattle that were sold, if he who bought them refused to pay toll, and if the thing taken was not redeemed within such a time, he might sell the same. And he justified in a place in Durham, absque hoc that he was guilty in Yorkshire; and by Warberton and Hutton this is a good traverse, to the place, for it is local.

If a Capias issued, here to have the body of such a one at Westminster such a day, and the Sheriff bring the body, or return the writ before the day, this is good by Iustice Warberton.

Tutter against Fryer.

TUtter against Fryer; a rent charge was granted for years with a nomine poenae, & a clause of distress if that was not paid at the day, and the rent was behinde, & the years incurred, and it was moved by Athowe, that though the years are incurred, that he may distrain for the nomine poenae, but the Court was of a contrary opinion, for that depends upon the rent, and the distress is gone as to both of them.

Duncombe &c. against the Bishop of Winchester, &c.

DUncombe and others against the Bishop of Winchester, and others Defen∣dants, in a Qu Imp. and the case was, that Sir Richard Weston was seised of the said Church in fee, in grosse, and was convicted of recusancy, and a Com∣mission issued to certain Commissioners, to seise two parts of his lands and goods, and they seised this advowson inter alia, into the hands of the King, and the King granted the advowson to the Plantiff, and the Church became void, and whether the King, or the university of Oxford shall have that, was now the questi∣on, and it was appointed to be argued the next Term.

Potter against Turner.

IN the Kings Bench, Pasch. 19 Iac. the case between Potter and Turner, was as I conceived to this effect; A. was indebted to B. in 20. l. and C. was indebted to A. in 30. l. and A. in satisfaction of the debt, which he owed to B. assigned the debt of 30. l. which C. owed to him, and made a letter of attorney to sue in his name; A. and B. acquainted C. with this agreement, and C. pro∣mised to B. in consideration that he will forbear till such a day that he will pay him the money; and upon this promise he brought the action against C. and he plead∣ded

non assumpsit, and it was found for the Plantiff. And it moved in arrest of Iudgement, that the consideration was not sufficient, according to Banes case Coke. 9. If executors who had not assets promise to pay a debt of the Testator, this shall not binde them, because they who made the promise were not chargeable, but on the other side, it was said by Whitwick of our house, that this was a good consideration, for the assignement of that debt was lawful, and no mainte∣nance at all, as appears by 15. H. 7. 6. and a recovery by B. against C. is a good plea in barre, in an action brought by A. against C. but Dodderidge Houghton and Chamberlin only present to the contrary, for B. here had only an authority to sue, and this is at all times Countermandable by A. As if I deliver goods to my servant to deliver over to I. S. and I. S. promise my servant that in consi∣deration that he will deliver them to him, he will give him so much money, this is no consideration, except that they are delivered accordingly, for this is only an authority to deliver goods which is alwayes countermandable by me. And Iudge∣ment was entered for the Defendant. vide 4. E. 4. 14.

Ewer and Vaughan.

IT was said by Dodderidge and A. in the argument of the case, between Ewer and Vaughan, that it had been adjudged by all the Iustices, in one Trewmans case, that no writ of error lyes of a judgement, given in the Stanneryes in Cornwal.

A Prohibition to the Admiralty.

MAny poor Marriners sued one Iones the Master of a ship, for wages in the Admiral Court, and judgement was given against Iones, and now he prayed to have a prohibition, and he suggested that the contract was made, at London in England, and so the suit was not maintainable, in the Admiral Court, but the prohibition was denyed, because he had not sued his prohibition, in due time, viz. before a judgement given in the Admiral Court, which in point of discretion they disallowed; and also these are poor Marriners, and may not be delayed of their wages so long, and besides they may all joyn, in a Libel in the Admiral Court, but if they sue here, they must bring their actions several, for they may not joyn here in an action, and therefore it is good discretion in the Court, to deny the prohibition.

Pastons case, it was said by Hobert, that a Coppiholder may hedge, and in∣close, but not where it was never inclosed before, and agreed by him, and War∣berton, that a Coppiholder may dig, for Marle without any danger of forfeiture, but he ought to lay the said Marle upon the same Coppihold land, and not upon other land, and this was upon the motion of Hendon Serjeant.

In a case which concerned, the Lady Mollineux and Fulgam, the case was in an Ejectione firme, that the Iury found the defendant guilty, of 10. acres, and the judgement was entered of 20. acres, and upon that the defendant brought a writ of error, in B. R. and now the Plantiff prayed that this might be amended: and Finch argued, that this ought to be amended, and he cited a case. Pasch. 8. Iac. Rot. 525. Iohn Chilley was Plantiff in debt, and recovered, and the judge∣ment was, that the aforesaid, Henry Chilley should recover &c. and upon that error, was brought in the exchequer chamber, and that was assigned for error, and yet after Pasch. the 9th. Iac. this judgement was amended in the Kings Bench, and Iohn inserted for Henry, and diminution was alleadged, and the first judge∣ment was affirmed in the exchequer chamber, and he cited a case, M. 8. Iac. Rot. 1823. in C. B. dower, was brought of 4. Gardens, and judgement was given,

to recover in 3. and upon this error was brought, and yet this judgement was afterwards amended, and he cited a case, Pasch. 17. Iac. between Sherley and Underhil in a Qu. Impedit, where it was amended after error brought, and he vouched one Masons case 12. Iac. in an action upon the case, against the husband, and the wife, for words which were spoke by the wife, and judgement was given against them, and that the wife capiatur, where it should be husband and wife Capiantur, and yet this was afterwards amended: Hendon contrary, after error is assigned, it may not be amended, in point of substance, and the case of Chilley may be good Law, for the misnaming only et praedictus Henricus, where was no Henricus before, could not have other signification, or intendment then Iohn who was named before in the record; Warberton and Hutton, the misname∣ing Henry for Iohn, is matter of substance cleerly, and then Hendon said, that now the judgement shall not be amended, because the prayer of the Plantiff, to have that amended came too late, because it is after error brought, and diminution alleadged; and the record certified, and then both the parties are concluded, but if only, a writ of error was brought, and no diminution was alleadged, that then the judgement may be amended, and he said, that he had not found in any book, where any amendment was after diminution alleadged, as here, and he cited 22. E. 3. 46. in dower, it was assigned for error, that no warrant of Atturney was entered for the Defendant, and ruled that this may not be assigned for error, a••ter a scire facias sued; see 4. E. 4. 32. but Hobert chief Iustice said, that it shall be a brave case, that our judgements shall be made good, or bad, at the plea∣sure of Clarks, and we shall not be able to amend them, to which Warberton al∣so agreed. And day was given over to speak to that again, and after, in the same Term this judgement was amended, per Curiam.

Action of debt upon a bond, and the Condition was to save the obligee harm∣less, of a nomine poenae, against Mary Moore, and he pleaded that he had sa∣ved him harmless, and per Curiam this is not good, for if he will plead in the affir∣mative as here, he ought to shew how he had saved harmeless, but if he had plea∣ded in the Negative, as he might well, then non damnificatus is a good plea generally.

Harrington against Harrington in accompt.

HArrington brought an action of accompt against Harrington, and declared of the receipt of moneys, by the hands of a stranger, and the Defendant plea∣ded in barre a gift of the same money, afterwards by the Plantiff to him; and it was argued by Towse, that this was no plea in barre of an accompt, but it is a good discharge before Audito••s, and he cited 28. H. 6. 7. Hendon to the contra∣ry, and said the opinion of Brian chief Iustice 21. E. 4. is that he may plead that in barre of accompt; and Warberton Iustice being only present agreed, for by the gift it is his own moneyes, and herefore he may plead that in barre.

It was said by Warberton, that if an Advowson is holden of the King, and the Tenant alien without licence, that the King may not seise that without office, which was granted by Hobert, and by Winch only present, and in the same case by Warberton, that a scire facias, issuing against the Alienee will not intitle the King, but ought to be an office found, and it was also said in the same case, by Serjeant Iones, that the ordinary shall have 28. dayes to examine the ability of one who is presented by the canon Law; and the same Canon Law is, that the Patron shall not present another during the 28. dayes.

Goddard against Gilbert.

GOddard brought an action upon the case, against Gilbert thou art a thief, and hast stolen 20. load of my furzes, and upon non culpabilis pleaded, it was found for the Plantiff; and now it was moved in arrest of judgement, by Hitcham, for where words may be taken in a double sense, one actionable, and another not actionable, they shall all times be taken in the better sense, and in our case, to take furzes may be fellony, and it may be not fellony, for if they are growing they are not fellony, and it shall be intended that they were growing, ra∣ther then cut down, and no man will presume, that any will take 20. loads of furzes, with a fellonius intent, because the carriadge of them is visible to all the world, for it shall not be intended, that he carried those in the night, and so he prayed that the Plantiff may be barred.

Attoe Serjeant contrary; words which implies a double signification, shall be taken in the worser sense, which tends most to the disgrace of the party, for they shall be supposed, to be spoken in malice, and so with a purpose to defame the par∣ty, and he cited a case, Trin. 2. Iac. B. R. Rot. 663. Kellam against Monest, thou art a thief and hast stolen my corn, and adjudge to be actionable. Hobert, Warberton, and Winch contrary, for words shall be taken in the better sense, and not in a strained sense to punish the party which spake them, as if one say to another, I wonder you will eat, or drink with him, for he hath the pox, now every one that heareth, that will suppose, that he means the french pox, and yet in a legal signification it shall not be taken, but in the better sense, for the small pox: but Warberton said, that if one say of another, that he is laid of the pox, an action lyes, for it is intended the french pox; and Winch said, that those acti∣ons of slander, were known to law but of late times, and for that 26. H. 8. it was thought that an action would not lye, for calling another thief, and in the princi∣pal case, judgement was commanded to be entered, quod Querens capiat nihil per brevem suum, and note, that I saw Hobert shew presidents to Winch, in a paper which were delivered to him by the Plantiff, and drawn by his Councel, and he said to Winch, that by those it seemed, that in the Kings Bench they made a difference between, (for) and (and) as had been said before; and he marvail∣ed much at that.

In a Capias Ulagatum before judgement, the Sherif returned that I. S. and I. N. rescoused the party &c. and Attoe moved, that the retorn was not good, for there ought to be additions, by which they may be sued to the outlawry, but Ho∣bert and the Court hold this to be good without addition, for no statute, nor book will compel the Sheriff to give additions in this case. And it was said, that if the Sheriff in this case, retorn that the party himself, simul cum I. S. and I. N. made the rescouse, that this is not good, but in the principal case, it was ruled that the return was good, and the rescousers which were present, were commit∣ted to the fleet, Homan and Hull were rescousers.

Vpon the reading of the record the case was, that an executor brought an acti∣on against one upon a promise made to the Testator: in which the executor was nonsuite; and 3. l. costs given against him: and the Defendant bruught an acti∣on of debt upon that recovery, against the executors: and upon this it was de∣murred in law, and Serjeant Towse said, that there are two causes of the de∣murrer, first, whether the Defendant shall be charged as executor, and is not named executor, and secondly, whether upon the nonsuite of an executor, the

Defendant shall have costs by the statute, of the 23. H. 8. Hobert chief Iustice, said to him you say well.

Note that it was said, by Hobert chief Iustice, that if a man dies intestate, and he to whom the Administration appertaines, is sued by others which pretend to be Administrators, and sentence is given against the right Administrator, and costs given against him, the costs shall not be of the proper goods of the Administrator, but of the goods of the intestate; as the costs which are spent in the spiritual Court, for the provate of a Testament, shall be only of the goods of the Testator; Hutton if the Legatee sue in the spiritual Court, for a Legacy, and recovers the costs, which he shall recover, shall not be of his own goods, but of the goods of the Testator, and no prohibition shall be granted, for any such sentence given in the spiritual Court: Hobert to the contrary; for if by such means the goods of the Testator are so wasted, that the debts, and legacies of the Testator, may not be discharged, a prohibition shall be granted, and in every case, where the sentence in the spiritual Court, crosseth the common law, a prohibition lyes, and he said that in the case of one Barrow in this Court, it was his opinion, and the opinion of the rest of the judges, that if Administration be committed by force of 21. H. 8. and the Administrator pay all the debts and Legacies, that in this case, the or∣dinary had not power to dispose of the rest of the goods, to the children of the intestate, but they shall remain to the Administrator, and that by the very intenti∣on of the Statute of 21. H. 8. but Hendon said, that he could shew a president of that, and the Court desired that they might see, that if any such president were.

LLewellings case.

VPon the reading of a Record, in the case of LLewelling, the condition of the obligation was, that the obligor should surrender his Copihold land, to the use of the obligee, and he pleaded that he had surrendered that, and upon that plea, the Plantiff demurred, and it was adjudged upon the opening of the case, by Warberton and Hutton, being only present in the Court, that judgement shall be given for the Plantiff, for the plea in barre is not good, because the Defendant had not shewed when the Court of the Lord was holden.

Duncombe against the Ʋniversity of Oxford.

In a Qu. Impedit, in which Duncombe and others were Plantiffs, who were grantees of the King, against the University of Oxford: and the case was,* 1.1 that Sir Richard weston was seised of an advowson in grosse, inter alia and was convict of recusancy, and a Commission issued, to seise two parts of his land, and goods, and they seised this advowson, inter alia, and the King granted the ad∣vowson to the Plantiffs, and the Church became void, and they presented, and were disturbed by the University of Oxford, and their Clark, upon which they brought a Qu. Impedit, upon which a demurrer was joyned: and Serjeant Iones argued for the Plantiff, and there was two points in the case, first, whe∣ther an advowson in grosse, is given to the King by the Statute of the 28. of Eliz. and the Statute is, that the King shall seise the lands, tenements, & hereditaments, of such a recusant convict, and whether by the same statute an advowson in grosse, shall be seised, and he held that it shall, for though perchance the word lands, and Tenements, will not carry that, being an advowson in grosse, yet this word here∣ditament, will carry it to the King by force of the Satute, for it appears by dyer 350. that if the King grant an advowson, by the name of an hereditament, that in this case this will pass the advowson, and for that Coke 10. Whistlers case, the King by

the grant an of hereditament, grants an advowson, by such words to a common per∣son then by the same reason a common person may grant, that to the King by the same words: but it may be objected, that because an advowson in grosse; is not valu∣able, therefore it is not given to the King; and upon this doubt upon the Statute of Wills, ••. H. 8. the question was, whether an advowson was devisable; by the name de bonis et Cattallis fellon. Butler, and Bakers case, that they are not devisable, for it is not valuable, but the 4th Iac. between Taverner and Gooch, which case may be seen in the new book of entries, that an advowson was devisable: before the Statute 5. H. 7. 37. it shall be assets, 9. H. 6. 55. recovery in value lyes of that; but admit that this is only a thing of pleasure, for the advancement of a friend, yet that shall be given by the Statute to the King.

But the second objection is, that though it is given to the King, yet it is not extendable upon the Statute by the Commissioners, for answer to that, see Sir Christopher Hattons case,* 1.2 upon the Statute of H. 8. which saith, if a man be indebted to the King, all his lands, and Tenements, shall be extended for this, and it was ruled, that an advowson was extendible for the debts of the King, and more is given to the King by the Statute, of the third of Iaco. then was by the 28. Eliz. for by the 28. of Eliz. the King may not seise the land, but upon de∣fault of payment, of 20. l. by the month, but by the Statute of the third Iaco. he may seise presently, and no election is given to the party: secondly, by the Statute 28. Eliz. the seisure of the King, was only in the nature of distress, for the payment of money, but by the Statute of 3. Iac. the King had election to seise; to satisfie himself, and he may refuse to be satisfied at his pleasure, and so the Statute which gives this to the Vniversity, doth not take away the title of the King, and upon that he concluded, and prayed judgement for the Plantiffs: Harris Serjeant to the contrary; the Statute of 3. Iaco. is the only subject of the doubt, and the first branch disables the recusant to present, secondly, it makes the present action void, thirdly, after conviction the Vniversity shall present, and this in verity, is that upon which the doubt is founded, and upon that branch he conceived that the King had concluded himself, to present to the church of the re∣cusant, for he being party himself to that act of Parliament, he had dismissed him∣self of all right, and Fortescue in laudibus legum Angliae non sunt ad voluntatem principis, sed ad voluntatem totius Regni, id est, the Statutes of England, are not at the will and pleasure of the King, but at the will of the whole Kingdome, Doctor and Stud. agreed, and 14. H. 8. Fo. 7. E. 6. Mounson; and the case of Alton woods, if the saving of an act of Parliament be repugnant, it is void, and so upon those cases, he inferred that the King being party to every act of Par∣liament, he is bound by that, and had dispossessed himself of the advowson, by the Statute of the 3. of Iaco. which had given that to the Vniversity, and had abrogated the power of the King, to seise the advowson, by vertue of the act of 28. of Eliz. for otherwise, this Statute which gives that to the Vniversity, shall bee meerly void, and Statutes which are repugnant to former lawes take them away, and do not confirme them, and though the Statute of the 3. of Iaco. is in the affirmative, yet that hath taken away the force of the Statute, of the 28. Eliz. but it may be objected, that before the recusant is convict, the King had but a possi∣bility, and then by the Statute of the 3. Iac. the King had not dismissed himself, of that which in judgement of the law is but a meer possibility, and by consequence, because he had nothing at the time of the making of the Statute, but a possibility, he had not given that over, by the same Statute to the Vniversity; to this he an∣swered, that the King may well give a possibility, and a future thing, as 9. H. 6. 62. 24. E. 3. 24. 30. E. Eliz. Treshams case, and so he concluded, because that this is given to the Vniversity by act of Parliament, the King being party, he had dismissed himself; and the 3. Iaco.—repeals 28. Eliz. as to that pur∣pose, and so he prayed judgement upon the whole matter for the Defendants.

And it was said by Hobert chief Iustice that this is indeed a case, of great weight and importance, and the Court agreed that the Statute, of the 3. Iacobi gave only a power to the Vniversity of Oxford, and not an interest, but day was given over to argue this again the next Term.

Sir George Savil against Thornton.

SIr George Savil declared, that he was seised in fee, and in gross, of such a Church, and that he presented I. S. his Clark who died, and that he presented another, and was disturbed by Thornton the incumbent▪ the Defendant pleaded, that a long time before the Plantiff had any thing in that, the Pryor of D. was seised of the advowson, and he being seised such a day granted the next avoydance, to one Golding, and that the advowson and the Priory, came to the hands of H. 8. by the Statute of 31. H. 8. by force of which H. 8. was seised, and after∣wards the church became void, and the executor of Golding who was grantee of the next avoidance, presented his Clark who was admitted accordingly; and after∣wards he died, that H. 8. died seised of the advowson, which discended to E. 6. and so to Queen Mary, and from her to Queen Eliz. who was seised in the right of the Crown, and she being so seised granted the next avoidance, to one Buckley her Clark, who was admitted, instituted, and inducted; after which Queen Eliz. died, and the advowson discended to King Iames; and in the 7th. year of his raign the Church became void, and he presented the Defendant, the Plan∣tiff by way of protestation, said that Queen Mary was never seised, nor died seised, and by protestation that Queen Eliz. was never seised, so that this might discend to King Iames, and for plea said that well and true it is, that H. 8. was seised, and died seised, so that this discended to E. 6. and that E. 6. such a year of his raigne, granted that to Wyat and his wife in fee, who granted that to the Plan∣tiff, and that Queen Eliz. presented L. only, absque hoc that E. 6. died seised, upon that it was demurred in law; and he shewed the cause of his demurrer, first because the protestations which he had taken in his replication are not good, secondly the traverse is not good.

And it was argued for the Defendant, by Bawtry Serjeant that the replication is not good, because he had taken that by protestation which is traversable, see the principal case of Gresbrook and Fox, and see the 22. H. 6. and then for the traverse he held that to be naught; First because he had traversed that which was but a mean conveyance. Secondly he had traversed that which he had confessed, and avoided; and thirdly he had not traversed that which he ought not to have tra∣versed, and for the first it is put regularly in our books that a mean conveyance shall not be traversed, and the descent here from E. 6. is but a mean convey∣ance, and the substance is the presentation of Queen Eliz. and that ought to be traversed, 17. H. 7. 2. the Prior of Tower Hills case, there it said, if in Assise the Tenant plead, that the Plantiff was seised, who infeoffed one B. who infeoffed C. who enfeoffed the Tenant, that it is no plea for the Plantiff to say, that he was seised till the Defendant disseised him, absque hoc that C. enfeoffed him, and for that reason, he ought to traverse the feofment, made by B. for the other was but a mean conveyance: see Dyer 107. in Trespass the Defendant conveyed to the donee, by 5. or 6. discents by dying seised, of the estate taile in every of them, the Plantiff confessed the intaile, and conveyed to him by feofment made by the heir of the donee which was a discontinuance, and took traverse to the dying seised of the same feoffor, and ruled to bee evil, for he ought to traverse the most anti∣ent discent: 43. H. 3. 7. Secondly it is evil, because he had confessed the sei∣sin of E. 6. and the grant by the same King to Wyat, and so had confessed and

avoyded the seisin of the same King, and then the Law will not suppose that E. 6. purchased that again, and for that the traverse of his dying seised is evil, when he had sufficiently confessed and avoided that before, as Dyer 336. in Vernons case, a discent was pleaded to the heire from his ancestor, the other party said, that the ancestor devised that to him, absque hoc that this discended to him as son and heire, and ruled to be evil, for a traverse needs not when he had confessed, and avoyded that before: Vide 14. H. 8. Sir William Meerings case, 26. H. 8. 4. by Fithzherbert, but Brook in the abridgement of the same case, said that if the traverse is evil then he had waved the plea before, and all was evil: 7. E. 4. by Littleton, for hereby the representation of Queen Eliz. she had gained the inheri∣tance to the Crown, and then the traverse being evil, he had waved the former plea which was good without traverse, and this seisin in the Crown is not answer∣ed, but by way of argument as here 14. H 6. 17. he ought to traverse absque hoc that he died in his homage. 20. E. 4. 5. 35. H. 6. 32.

Serjeant Iones to the contrary, and as to that which hath been said, that the presentment is alleaged to be in jure coronae, and the confessing the presentment is a plea by way of argument, to which he answered that the record is not so, but the seisin of the advowson is alleadged by discent, to Elizabeth Queen, by force of which she was seised in jure coronae, and Iones argued that the traverse is good, for every plea in barre ought either to be traversed, and denied, or confessed and avoided, and here that ought to be traversed Dyer 208. 312. in avowry for a rent charge, and seisin was alleadged in the grantor, of the land in fee, and the Plan∣tiff said he was seised in taile, he ought to traverse that he was seised in fee, and a good traverse Hill. 2. Iac. in C. B. Rot. 1921. Edwards against D. it was pleaded that such a man was seised in fee of a rent charge, and the other confessed that he was seised in fee, and that a long time before he enfeoffed one I. S. there he ought to traverse, that he was seised at the time of the grant: see the new book of Entryes Tavener and Gooches case, in a Qu. Impedit. And a note by the Lord Cooke: also he said, that after the grant there may be an usurpation, and so the dying seised in the case of an advowson in gross ought to be traversed, ••e 21. E. 4. 1. 20. E. 4. 14. and as to that which hath been said, against the pro∣testations; he answered it ought to be traversed, and for that the rest ought to be taken by protestation: and in some cases the conveyance is traversable; see Cromwels and Andrews case. And so he concluded and prayed judgement for the Plantiff

Note that he said, that it was adjudged in that Court 2. Iac. in the case of the Bishop of Winchester, that two usurpations gaine the advowson from the King. And the reason was, because the King by an usurpation may gaine an advowson, in him out of a Common person, and if the King Vsurpe, and the right patron present, he is remitted: Hobert by such usurpation, the possession is gained from the King, but not the right, and note that upon the argument in the principal case, by Bawtry and Iones, it was ruled by Hobert, Warberton, and Hutton, that if the Defendant do not shew better cause by such a day, judgement shall be given against him; and Hutton said, that he had studied the case, and found no doubt but that the traverse is good, Winch was absent in the Chancery.

M. 19. Iac. C. P.

IT was moved for a prohibition by Harris Serjeant, to the Court of Audience, because that the Plantiff was sued there for saying to one thou art a Common Quean, and a base Quean, and Harris said, that a prohibition had been granted in this Court, for saying to one that she was a piperly Queen, and it was the

case of Man against Hucksler; and Finch said, though the words are not action∣able in our Law, they are punishable in the spiritual Court, for the word Quean in their Law, implies as much as whore, but Hobert said, that this word Quean is not a word of any certain sense, and is to all intents, and purposes, and indivi∣duum Vagum, and so in certain; see more after.

Note that it was said by Justice Warberton, that it was adjudged in the case of one Ablaine of Lincolns Inne, that if a man made a lease for years rendering rent, and the lessee or a stranger promise upon good consideration to pay the rent; that in this case no action upon the case will lye, for it is a rent, and is a real thing; and Hutton Justice being only present agreed, this was upon the motion of Finch Serjeant, & Mic. 43. Eliz. in the Kings Bench in an action upon the case, & he decla∣red how he let certain land to the Defendant for years, in consideration of which the Defendant promised to pay him for the farm aforesaid, 20. l. and Hitcham moved that the action will not lye, because it appears to be for a rent, for which an action of debt lyes, but by Gaudy, Fenner and Clench it is not a rent, but a summe in gross, and for that reason, because he promised to pay that in the con∣sideration of a lease, cleerly an action upon the case lyes, but Sir John Walter replyed, that a writ of error was brought of this case of Simcocks in the exche∣quer chamber, and the matter in law was assigned for error, and it was ruled that no action upon the case will lye, for Walmsley said this was a rent, for of necessity there ought to be supposed a commutation between the lessor and lessee, and that the lessor demanded of the lessee, how much he would give for that, and then he answered 20. l. this made an entire contract, and for that reason an action of debt lyes, and not an action upon the case, and Savil and Kingsmil agreed to this.

In evidence to the Iury, in a replevin brought by I. S. against one Bennet, for the taking of beasts, and the Defendant made Conusance, and he said that Mr. Potts was seised of 6. acres of land, and granted a rent charge out of that to one William Pots his son in taile, and for rent behinde he avowed, and the issue was, that the rent did not pass by the grant; and Hobert said, that in this case the avowant ought to prove that the grantor was seised of 6. acres, or more, and not of 4. or 5. acres, if he will maintain his issue in this case.

Action upon the case for words he innuendo the Plantiff stole the Tobacco out of his Mrs. shop. Finch moved the declaration was not good, because he had not averred that there was a communication concerning him before, and where the person is incertaine there the innuendo is void, Hobert and Winch held that to be good, but then Hobert moved that the declaration was not good, because he said the Tobacco in his Mrs. shop, and had not averred that there was Tobacco there, to which also Winch agreed, but if he had said that he had stolen Tobacco out of his Mrs. shop; such declaration without any averment is good; but here the words (the) had altered the sense, and so there ought to be an averment; and Winch said, that if he had said, that he had stole 2 or 3 pound of Tobacco out of his Mrs. house, this had been good without any averment, for the certainty ap∣pears; and it was adjourned.

Notes

• * 1.1

  Hill. 18. Jac.
• * 1.2

  13. Eliz. cap. 4.