Reports, or, new cases with divers resolutions and judgements given upon solemn arguments, and with great deliberation, and the reasons and causes of the said resolutions and judgements / collected by John March ... England and Wales. Court of King's Bench. 1648 Approx. 536 KB of XML-encoded text transcribed from 121 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2004-08 (EEBO-TCP Phase 1). A51911 Wing M576 ESTC R6440 12636892 ocm 12636892 64899 This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal . The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. Early English books online. (EEBO-TCP ; phase 1, no. A51911) Transcribed from: (Early English Books Online ; image set 64899) Images scanned from microfilm: (Early English books, 1641-1700 ; 697:27) Reports, or, new cases with divers resolutions and judgements given upon solemn arguments, and with great deliberation, and the reasons and causes of the said resolutions and judgements / collected by John March ... England and Wales. Court of King's Bench. March, John, 1612-1657. England and Wales. Court of Common Pleas. [2], 218, [20] p. Printed by M.F. for W. Lee, M. Walbanke, D. Pakemen, and G. Beadel, London : 1648. Reproduction of original in Huntington Library. Created by converting TCP files to TEI P5 using tcp2tei.xsl, TEI @ Oxford. Re-processed by University of Nebraska-Lincoln and Northwestern, with changes to facilitate morpho-syntactic tagging. Gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. 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Copies of the texts have been issued variously as SGML (TCP schema; ASCII text with mnemonic sdata character entities); displayable XML (TCP schema; characters represented either as UTF-8 Unicode or text strings within braces); or lossless XML (TEI P5, characters represented either as UTF-8 Unicode or TEI g elements). Keying and markup guidelines are available at the Text Creation Partnership web site . eng Law reports, digests, etc. -- England. 2004-02 TCP Assigned for keying and markup 2004-03 Aptara Keyed and coded from ProQuest page images 2004-04 Judith Siefring Sampled and proofread 2004-04 Judith Siefring Text and markup reviewed and edited 2004-07 pfs Batch review (QC) and XML conversion REPORTS : OR , NEW CASES ; WITH Divers Resolutions and Judgements given upon solemn Arguments , and with great deliberation . AND The Reasons and Causes of the said Resolutions and Judgements . COLLECTED By JOHN MARCH of Grayes Inne , BARRESTER . LONDON , Printed by M. F. for W. Lee , M. Walbanke , D. Pakeman and G. Beadel . M.DC.XLVIII . REPORTS , Easter-Term , 15º CAROLI , In the Kings Bench. IT was agreed by Justice Iones and Justice Barckley ( the Lord Chief Justice and Justice Crook being absent ) That if the Sheriff do arrest a man upon mesne processe , and return a Cepi corpus , and that the Defendant was rescued ; that no Action lieth against the Sheriff : But if the party be taken upon an Execution , an Action upon the Case lieth against him ; and so is the express Book of 16 E. 4. 2 , 3. Br. Escape 37. upon which Book Justice Iones said , That it was adjudged in this Court , as above is said . 2. It was agreed by the Court , That if a man in pleading derive an Estate from another man , and doth not shew what Estate he had from whom he deriveth his Estate , that is a good cause of Demurrer . And Justice Iones said , That if a man claim a Rent by Grant out of the Land of any other man , it is not sufficient for him to say , That such an one was seised and concessit ; but he ought to express of what Estate he was seised : So is Dyer . But in this Case it was agreed , That the shewing of what Estate , &c. ought to be material to the maintenance and support of the Estate which he claimeth , otherwise it is not necessary . 3. An Action upon the Case for words , was brought by one who was Journey-man and ●ore-man of a Shoomakers-shop , which was his living and livelihood , for these words , viz. It is no matter who hath him , for he will Cut him out of doors . And farther the Plaintiff did aver , that the common acceptance of these words amongst Shoomakers , is , That he will begger his Master , and make him run away : and shewed that he was particularly endamnified by speaking of those words . And the Court was clear of Opinion , that the Action would lie . And these Rules were taken and agreed . For some words an Action will lie without particular averment of any damage ; as to call a man Thief , Traytor , or the like ; these are malum in se : And some words will not bear Action without particular averment of some damage ; as to say , Such a one kept his wife basely , and starved her ; these words of themselves will bear no Action : but if the party of whom the words were spoken were in election to be married to any other , and by speaking of these words is hindred ; there with such Averment they will bear an Action . It was farther agreed , That the words ought to be spoken to one that knows the meaning of them , otherwise they are not actionable , as in the principal Case , they were spoken to a Shoomaker ; but if they had been spoken to any other who knew the meaning of them , it had been all one : And therefore scandalous words which are spoken to one in Welsh , or any other Language , which the party to whom they are spoken doth not understand , are not actionable . And it was agreed , That some words which are spoken , although of themselves they are not actionable , yet being equivalent with words which are actionable , they will bear an Action . And therefore it was said by Justice Iones , That in York-shire ( as I remember ) Straining of a Mare , is as much as Buggering : and because these do amount to as much , with averment they will bear Action . And all words which touch a man in his livelihood and profession will bear Action . And the Opinion of the Court also was , that the Averment ought to be , That in this ( and shew it specially ) the Plaintiff was damnified : and so it was agreed upon these Reasons , that the Action did lie . 4. The Opinion of the Court was upon a Judgment given there , there ought to be two Scire facias , one against the Principal , the other against the Bail ; but one only is sufficient in the Common Pleas , and that two Nichils returned do amount to Scire feci . 5. There was a Contract made at Newcastle , that a ship should sail from Yarmouth to Amsterdam , and there was an Action of Debt brought upon the Contract at Newcastle , and it was adjudged that the Action would not lie : and the difference was taken betwixt a particular and limited Jurisdiction , as in this case Newcastle is ; and a general Jurisdiction , as one of the Courts at Westminster hath : for in the first Case , no particular Jurisdiction shall hold plea of a thing which is done in partibus transmarinis , although the Original ( as the Contract in the principal Case ) be made in England ; but contrary in case of general Jurisdiction , as any the Courts at Westminister have . 6. The Custome of London is , that any man in London may pass over , or put over his Apprentices to any other man within the City . King and Cokes Case . 7. WIlliam Marshal , and other Bailiffs had an Execution ( viz. a Capias ad satisfaciend ' ) against Coke and others ; which Bailiffs came to Coke's house , and lay one night in his out-houses privily ; and the next morning they came to his dwelling-house , and gave him notice of the Execution ; but Coke shut the doors of his house close , so as the Bailiffs could not enter ; whereupon they brake the Glass-windows and the Hinge of the door , endeavouring to enter : whereupon Coke commanded them to be gone , or he would shoot them : notwithstanding which , they did continue their ill-doing ; whereupon Coke shot Marshal one of the Bailiffs : and whether this was Manslaughter or Murder , was the Question . And Rolls argued , that it was not Murder for these causes . 1. Because the act of the Bailiffs in breaking of the Glass and the Hinge of the door was an unlawful act , and was at their p●ril . Where the Kings Officer may break the house to serve any mean Process or Execution , the differences are such as are in Semaynes Case , C. 5. part 91 , 92. 1. betwixt Real and Personal Actions : In Real Actions they may break the house to deliver seisin to him who recovereth ; contrary in Personal Actions . 2. There is a difference in the case of the King , and of a common person ; where the King is party , in some cases his Officers may justifie the breaking of a house , but not in the case of a common person . 13 E. 4. 9. 18 E. 4. 4. 4 Rep. 4 ▪ 9 Rep. 69. And therefore if they could not justifie the breaking of the house at the suit of a common person ; then in the principal Case , they did a thing which was not warranted by Law : and therefore the killing of one of them was not Murder . But clearly , if the Bailiffs had lawfully executed their Office , then it had been Murder . 2. It was not Murder , because the person was in his House , which is his Castle and defence , which is a place priviledged by the Law. 26. Ass. 23. 3 E. 3. 330 , 305. Besides , the party is not bound to tarry till the Bailiffs come in and beat him . 2 H. 4. 8. 19 H. 6. 31. 34 H. 6. 16. 43 Ass. pl : 31. 3. This Authority which is given to the Kings Officer , is given by the Law , and if he execute it according to the Law , the Law will protect him ; but if he exceed the priviledge given him by the Law , then all he doth is illegal , and he loseth its protection . And he resembled it to the 6 Carpenters case . C. 6. part . Farther , one may pretend he hath such a warrant , when he hath it not , of purpose to rob , or do some other mischief . And it was agreed by all the Justices , nullo contradicente , that it was not Murder , but that it was Manslaughter ; for this reason especially , because the Officer was doing an unlawful act , not warranted by Law ; and therefore it was at his peril if he were killed . And farther , upon this difference there ought to be malice in fact or in Law to make Murder ; but in this Case there is none of them , for it is apparent that there was no malice in fact : and there is no malice implied , for then it ought to be where a man kills another without any provocation , or the Minister of Justice in the due and lawful execution of his Office , which is not our Case ; for here he did an unlawful act at the time he was killed ; and therefore it was not Murder , but Manslaughter . There was a Case tried at the Sessions in the Old-Baily , which was thus : One Lovell had two Maid-servants , and one of them without his knowledge , had received into the house a Chare-woman , who ( all being in their beds ) by her negligence let a Thief into the house , and afterwards called out Thieves , Thieves ; and afterwards Lovell came out of his Bed with a Sword in his hand , and the Chare-woman calling to mind that she was there without his privity or his wifes , hid her self behind the Dresser , and Lovell's wife espying her there , cried out Thieves , Thieves ; for which Lovell came and ran her into the brest with his Sword. And the Opinion of the Justices at the Old-Baily , and also of all the Justices of the Kings Bench , was , That it was neither Murder nor Manslaughter : Not Murder , because there was no forethought malice ; not Manslaughter , because he supposed her to be a Thief ; and if she had been a Thief , then it was clear that it was not Manslaughter . 8. It was resolved in the Chancery ( as the Judges of the Kings Bench said ) That where the Son is of full age , and is ravished , that the Father shall not recover Damages , because the Son being of full age might marry himself without the consent of the Father : and that was the reason given , as I conceive ; and the Case was said to be Sir Francis Lees Case . 9. The Book of Canons is , that the Parson may Elect one Church-warden , and the Parishioners another . 10. There can be no Surrender without the Consent of the Reversioner . 11. It was Libelled in the Ecclesiastical Court for these words , Thou art a Drunkard , or usest to be drunk thrice a week . And thereupon Prohibition was Prayed and Granted : and it was said and agreed , That so it was adjudged betwixt Vinior and Vinior , in this Court. The Case in Dyer , 254. b. where the Presentee was refused , because he was a common haunter of Taverns , &c. was by Justice Barckley denied to be Law , and so agreed by Justice Iones , the Lord Chief Justice and Justice Crooke being absent : But Justice Barckley was utterly against the Prohibition . 1. Because the Action in the Ecclesiastical Court is only pro salute animae . And 2. Because that Drunkenness is in their Articles , and Presentable . But Justice Iones granted a Prohibition , and said that Linwood said well , That if all things which are against the Law of God ( or words to that effect ) should be tried in the Ecclesiastical Court , the Jurisdiction of the Temporal Court should utterly be destroyed . 12. If there be an Indictment of Forcible Entry , if it appear that the Plaintiff had seisin at the time of the Writ brought , there can be no Writ of Restitution ; for the Statute ●aith , If he Enter with Force , or keep him out with Force : but yet in that case the King shall have his Fine . And there was an Indictment , which was a principal Case at Bar , which was , That the Defendant adtunc & adhuc doth keep the possession forcibly , whereas the Plaintiff was in possession . And thereupon a Writ of Restitution was awarded by reason of the word [ adhuc ] 3 E. 4. 19. it was adjudged , That where there is Forcible Entry , and Reteiner with Force , that both are punishable , although the Statute of 8 H. 6. 9. be in the disjunctive . 13. Descent of a Copy-hold shall not take away Entry . There ought to be a custome to enable the Lord of a Mannor to grant a Copy-hold in Reversion . 14. In the Council of Marches of Wales , they proceed according to Directions ▪ and they cannot exceed them ; and they 〈…〉 with Freehold , for it is not within their 〈…〉 . And they cannot hold Plea of Debt above fifty pound● . 15. An Assignment of Rent to a Woman , out of Land of which she is Dowable by Word , is good ; but if she be not Dowable of the Land , then the Assignment by Word is not good , and void ; because that in the first Case it is according to common Right , but in the last , not . 33 H. 6. 16. In a Writ of Error to Reverse a Judgment in an Action of Debt upon an Arbitrament , the Error assigned was this : That two did refer themselves to Arbitrament of their two several Arbitrators ; and there is no word of Submission : that the same is Error , and there was Error in the Entry of the Judgment ; the entry of which was in this manner ; Consideratum est , and per Curiam is omitted and left out . And for these Errors , the Judgment was Reversed . Smith's Case . 17. ONe said of him , Thou art forsworn , and hast taken a false Oath at Hereford - Assises , against such a one , naming the party . And the Opinion of the Court ( the Chief Justice and Justice Crooke being absent ) was against the Action . But they conceived that the Action would have lied , if the Defendant had said , Thou art forsworn , and hast taken a false Oath at the Assises , against such an one , with Averment that he was sworn in the Cause . 18. It was said at the Bar , That it was adjudged in this Court in Appletons Case , That where a man said unto another by way of Interrogatory , Where is my Piece thou stolest from me ? that it was actionable . Justice Iones remembred this case , where one said , J. S. told me , that J. N. stole a Horse , but I do not believe him . This with Averment that I. S. did not say any such thing , would bear an Action . Justice Barkley said , That an Action was brought upon these words , You are no Thief ? and that these words with Averment , which imply an affirmative , will bear an Action . 19. It was said to a Merchant , That he was a cousening Knave . And the Opinion of the Court was , ( the chief Justice and Justice Crooke being absent ) that the words were not actionable , because he doth not touch him in his Profession , for the words are too general : But it was said , That to call him Bankrupt was actionable . And mall Cases where a man is touched in his Profession , the words are actionable . But to call a Lawyer a Bankrupt , is not actionable . Justice Iones said , that Serjeant Heath brought an Action for these words : One said of him , That he had Vndone many ; and it was adjudged actionable ; because he touched him in his Profession . 20. Kingston upon Hull is a Particular and Limited Jurisdiction , and they held Plea of a Bond which was made out of their Jurisdiction ; and thereupon a Capias was awarded against the Obligor , who was arrested upon it , and suffered by the Sheriff to escape : And the Opinion of the Court was clear , That no escape would lie against the Sheriff , upon the difference in the case of the Marshalsea , That if the Court hold Plea of a thing within their Jurisdiction , but proceed erroneously , that it is avoidable by Error ; but if they have not Jurisdiction of the cause , all is void , and coram non Iudice . 11 H. 4. and 19 E. 4. Acc. So in the principal Case : for they held Plea of a thing which was out of their Jurisdiction , and therefore the whole proceeding being void , no Action can lie against the Sheriff , for there was no Escape . 21. Where a man is Outlawed , and the Outlawry reversed , notwithstanding the Original doth remain , and the cause that the Original was determined was the Outlawry ; and now Cessante causa cessat effectus . 22. A man made a Lease for years , with exception of divers things , and that the Lessee shall have conveniens lignum non s●●ccidendo , &c. vendendo arbores , &c. Now the Lessee cut down Trees , and the Lessor brought an Action of Covenant : and the Opinion of the Court was , That the Action would lie , and that it is as a Covenant on the part of the Lessee , because the Law gives him reasonable Estovers , and by this Covenant he abridgeth his Priviledge . 23. Justice Iones said , and so it was agreed by the Court , In what case soever there is a Contract made to the Testator or the Intestate , or any thing which ariseth by Contract , there an Action will lie for the Executor or Administrator ; but Personal Actions die with the Testator or Intestate . 24. The Administrators of an Executor shall not sue a Scire facias upon a Judgment given for the Testator , because the Testator now died Intestate , because there is no privity . And so it hath been many times adjudged . 1 Rep. 96. a. 5 Rep. 9. b. The Earl of Oxford and Waterhouse Case , in a Writ of Error to reverse a Fine . 25. WAterhouse levied a Fine , the Earl of Oxford pleaded that he was beyond Sea at the time of the Fine levied . Waterhouse replied , That he came here into England in August , within the five years ; and upon that they were at issue . The Jury found , that he came over in Iuly . And notwithstanding the Opinion of the Court was clear , That the Writ of Error did not lie : For although the Jury have found that he came over in Iuly ; yet the substance of the matter is , that he was in England , so as he might have made his Claim ; and therefore the Fine should bar him . And Justice Barckley compared it to the Case of 10 Eliz. Dyer 271. b. which Case is a Quaere in Dyer , but Resolved in the 6 Rep. 47. a. A man brought Debt against an Heir , who pleaded that he had nothing by Descent . The Plaintiff pleaded that he had Assets in London , and the Jury found Assets in Cornwal , and good ; for the substance is , whether he had Assets or not . 26. If a Nobleman who is not a Baron or Earl of this Realm , in an Action brought against him , or by him , be named Knight , and Earl of such a place , it is good , because that although he cannot be sued , or sue another , by the name of Earl , Baron , &c. yet by the name of Knight he may , and that is sufficient . 27. Writ of Error was brought here , to reverse a Judgment given in Ireland , it is a Supersedeas to the Execution : for although the Record it self is not sent over , for fear of losing the same in the water or otherwise , yet a transcript is made thereof , which is all one . And Justice Barckley compared it to the Case where a Writ of Error is brought in this Court to reverse a Fine in the Common Pleas , there the Record it self is not sent , but a Transcript thereof , because we have not a Cirographer to receive it , but the Transcript is all one . Sir John Compton's Case upon the Statute of Winchester , 13 Ed. 1. and 27 Eliz. of Robberies . 28. SIr Iohn Compton Knight , brought an Action against the Hundred of Olison ( or the like name ) for a Robbery done upon Red-hill in the County of Surry , within the aforesaid Hundred , and the Robbery was done upon his man , and five hundred and ten pounds was taken from him . And in this Case it was agreed by the Justices , That although there be a remisness or negligence in the party who was robbed , to pursue the Robbers , or that he did refuse to lend his Horse to make Hue and Cry ; yet this doth not take away his Action , nor excuse the Hundred , if notice be given with as much convenient speed as may be , as the Statute of 27 Eliz. speaks , for them to make Hue and Cry. And although the Party who was robbed , doth not know the Robbers at the present time , and thereof takes his Oath before a Justice of Peace , as the Statute of 27 Eliz. hath provided ; and afterwards comes to know them , and so he affirm , yet this doth not take away his Action . And it was resolved also , that notice given in one Hundred five miles from the place where he was robbed , is sufficient ; and the reason is , because that the party who is a stranger to the Country , cannot have conusance of the nearest place or Town . Chief Justice : That notice given at one Town , and Hue and Cry levied at another , is good . And the Jury found for the Plaintiff : And thereupon a Quaere was made by one who was of Counsel with the Hundred , Whether such persons who become Inhabitants after the Robbery , and before the Iudgment , whether they should contribute ? And Justice Barckly said , That all who are Inhabitants at the time of the Execution , should pay it . 29. A Vicar cannot have Tithes but by Gift , Composition , or Prescription : For all Tithes de jure do appertain to the Parson . 30. A man was bound to the Good Behaviour , for Suborning of Witnesses . Plowden against Plowden . 31. PLowden the Son brought Trespass against Plowden the Father , for taking the Plaintiffs Wife cum bonis viri . And the Case was , That he did reject and eject his Wise without giving of her Alimony : for which she had Sentence in the High Commission-Court ; and the Defendant took those Goods for the Alimony of the Wife . And Justice Barckley said , That the Defendant might plead , Not guilty . Lister against Hone , in Trover and Conversion for a Hawk . 32. JUdgment was given for the Plaintiff , but it was moved in arrest of Judgment , because it was not said in the Declaration , that it was a tame Hawk . Dyer 13 Eliz. 306. b. and 43 E. 3. Acc. And here it was said , That the words of the Declaration shew that it was a wild Hawk ; for the words are , For taking Accipitricem suum , Anglicè vocat ' a Ramish Fawlcon ; and it was said that Ramish , is as much as to say , inter ramos agens ; but that was denied : for a Ramish Hawk is a Fowl Hawk , by which the contrary is implied , that it was tame . And here it was farther said for the Defendant , that if [ reclamato ] be omitted , [ de bonis suis propriis ] will not help it . But it was said in affirmation of the Judgment , that although [ reclamato ] be omitted , yet , that [ de bonis suis propriis ] will help it : and Justice Barckley with all the Justices ( except the Chief Justice , who was absent ) did agree very strongly , That the Judgment should be stayed ; because that a Hawk is ferae naturae , and although it be tamed , yet if it fly away , and hath not animam revertendi , then occupanti conceditur . Vide 27 Hen. 8. And for the words , de bonis suis propriis , they do nothing , for the Party had but a Right of Possession , and not of Property : and if it be , it is but a qualified Property , as 7 Rep. 17. b. He agreed , that if a man hath a wild Hawk in his possession , and another man takes it out of his possession , Trespass will lie ; but if it fly away , then Capiat qui capere potest : And thereupon Judgment was stayed . Parkinson against Colliford and others , Executors of a Sheriff . 33. THe Case was , That Judgment was given against another man at the Plaintiffs suit in Debt , in the Common Pleas , and upon that a Writ of Error was brought in the Kings Bench , and the Judgment affirmed ; and upon that a Fieri facias directed to the Sheriff , who levied the Mony , and died , the Writ being not returned , and thereupon Debt was brought against his Executors : and these exceptions were taken . 1. That the Writ of Fieri facias was not returned , and therefore the Sheriff should not be charged in Debt ; but otherwise if it had been returned . 2. That no Debt lieth against the Sheriff , although it had been returned . 3. Admit that it would lie against himself , yet it will not lie against his Executors , because it is a Personal wrong , and dieth cum Persona . 4. That the Fieri facias was awarded out of this Court , and it doth not appear whether it were awarded after the Record removed into this Court or not . Justice Barckley , with whom all the other Judges did agree , was of Opinion , That Debt would lie against the Sheriff where he sells goods upon a Fieri facias , for now he is Debtor in Law , and the Defendant discharged against the Plaintiff , and ●●e may plead it ; and therefore it is reasonable that the Defendant should be answerable to the Plaintiff , and he took the difference betwixt Seisin of goods only , and where the Sheriff seiseth and selleth them : for till Sale no Debt will lie against him . And it was said , that Accompt will lie against him ; and if Accompt , by the same reason , Debt . As to the return of the Writ , he said that the Sheriff is not compellable to make it , and therefore it 's nothing to the purpose ; and the difference stands , where the Sheriff returns a Jury , where not : in case of Elegit the Writ ought to be returned , but not in case of Fieri facias , as is 1 H. 7. Clerk of the Hampers Case . Farther , I conceive that it will lie against the Executor , and it is not like the Cases which are Personal , where the action moritur cum Persona : but here the goods came to the Executors , and therefore it is reason to charge them . And it is not like the Case in Dier , 10 Eliz. 271. a. where it is said , An Action of Debt will not lie against the Executor of a Keeper , nor an Escape , for there the body comes not to the Executor : And this very difference may be collected out of Dier in the place aforesaid ; and the difference will stand where there is a personal wrong done to him , and where not . And for the Exception , That it doth not appear whether the Fieri facias was brought after the Record removed or not : To that they said una voce , that it appeareth that it was upon these words of Record , viz. That the Record was brought hither , and here remained ; and it is not needful to shew , that Errour was brought , &c. Justice Iones : I conceive , that Debt will lie against the Sheriff , because the Sheriff had it delivered to him to deliver over . And if I deliver mony to deliver over , Debt will lie for him to whom it ought to be delivered . So in this Case . And because also the Defendant is discharged , and may plead the same , and therefore there is reason to charge the Sheriff . Farther , I conceive also , that it will lie against the Executors : And I shall take this difference , where the wrong is ex maleficio , for there it dieth with the person ; and where ex contractu , for there it doth not die with the person . If I deliver goods to a man , and he di●th , an Action of Trover will lie against his Executors . And here the Sheriff could not have waged his Law , for the Debt is brought upon matter of Record , upon which wager of Law lieth not , but upon simple contract . And the Sheriff hath here made himself Debtor in Law upon Record . Justice Crook : It is reason to charge the Sheriff , because the Defendant is discharged , and may plead that his goods were taken in Execution by the Sheriff in satisfaction of the same Debt . And the Executors may be charged , because no wager of Law lieth , because the Debt is here brought upon matter of Record . And he agreed with Justice Iones in the difference betwixt maleficium and contractum . And therefore they did all conceive that the Action would lie . And in Spekes Case in the Common Pleas , it was voted , that the Action would lie against the Sheriff . 34. In a Habeas Corpus , the Case was thus : A man would erect a Tavern in Birchin-lane ; and the Mayor and Communalty for his disobedience , because he would not obey them , but would erect a Tavern there against their wills , they knowing the same to be an unfit place , did imprison him . And the Opinion of the Court was , That he should be remanded , because that the Mayor and Communalty had authority over him , and they might appoint him a place in which he might erect his Tavern . For it is a disorderly Profession , and not fit for every place . And it was adjudged in this Court , That a Brewhouse ought not to be erected in Fleet-street , because it is in the heart of the City , and would be annoyance to it . And if one would set up a Butchers shop , or a Tallow-Chandlers shop in Cheap-side , it ought not to be , for the great annoyance that would ensue . And therefore the Mayor and Communalty may redress it . And therefore the party was remanded , and was advised by the Court to submit to the Government of the City . Note , the Recorder certified the Custom , That the Mayor might appoint a place . 35. Upon a Recovery in a Court-Baron , against one , he offered here to wage his Law. And Justice Barckley doubted whether wager of Law would lie in such Case : To which Justice Iones said , Yes ; and Barckly agreed hereunto , because the Recovery was in a base Court , and not in a Court of Record . Vide 2 E. 4. 36. No antient Mill is Tithable ; but Mills newly erected shall pay Tithes , by the Statute of 9 E. 2. 5. Meade against Axe , in a Writ of Error to reverse a Iudgment . 37. THe Case was : Axe brought an Action against Meade for these words spoken of the Plaintiff , a Dyer , by the D●fendant , Thou art not worth a Groat : And the Plaintiff added , that these words amongst Citizens of such place where they were spoken , have the common acceptation , and doth tant amount as the calling of him Bankrupt . The Errors which were assigned by Meade Plaintiff in the Writ of Error were , 1. Because it is added , that the words were spoken inter diversos ligeos , and doth not say Citizens of the place where they have such acceptation . 2. Because that the Judgment is , Consideratum est , and the words per Curiam left out . And the Court was clear , that for these two Errors the Judgment should be reversed : But the Court was clear of Opinion , That the words of themselves are not actionable , and that the averment in this Case was idle and to no purpose , because the words of themselves imply a plain and intelligent sense and meaning to every man. And it was compared to the Cases , Where there is no Latine for words , there where words of no signification are put to express them , there they ought to be explained by an Anglicè ; but where the words are significant , there needs not any Anglicè . Now if you will explain significant words under an Anglicè , contrary to the meaning and true intendment of the word it self , the Anglicè is void : So in our Case of Averment . The reason which was conceived wherefore the words of themselves are not Actionable , Because that many men in their beginnings are not worth a Groat , and yet their credit is good with the world . But if he had laid specially , That he was damnified , and ha● lost his Credit , and that none would trust him , upon this special matter , the words would be Actionable . Bonds Case . 38. IN Trespass , the Plaintiff declared , That the Defendant entred in his Land , and did cut down and carry away two Loads of Grass in the Plaintiffs Soil , in a certain piece of Ground , in which the Trespass was supposed to be done , to strow the floor of the Church ; and that he cut two Load● there , to estrew the floor of the Church , and did not say , that it is the same Trespass , &c. And it was adjudged Error : But the Court was clear , that the Prescription for cutting of grass to estrew the Church , was good ; because it was but in the nature of an Easement . And so to have a washing-place in the land of another ; and so the custom here in London , to shoot in the land of another , and so for the Inhabitants of a town to have a way over the land of another to their Church . But Mr. Rolls who moved the Case at the Bar , said , That it was adjudged , that Inhabitants of a town by custom , should have an Easement over the Freehold , or in the Freehold of a Stranger , but not profit Apprender : But , as I remember , the Plaintiffs Freehold lay near the Church , and for that reason the Court might conceive the same to be but an Easement . Vide 2 H. 3. cited by Justice Iones . Vid. Gatewoods Case , 6 Rep. 60. b. Conysbies Case . 39. UPon the Lease of an House , the Lessee Covenanted that he would Repair the House with convenient , necessary and tenantable Reparations . The Lessor brought Covenant , and alleaged a breach of the Covenants , in not repairing for want of Tiles , and dawbing with Morter , and did not shew that it was not Tenantable . And the Opinion of the Court was , that he ought to have shewed it ; for the house may want small Reparations , as a Tile or two , and a little Morter , and yet have convenient , necessary and tenantable Reparations . 40. A Writ of Error was brought , and the Error assigned was , want of Pledges : And the Judgment was reversed , although it was after Verdict . And so was it adjudged in Dr. Hussies case , and Young and Youngs case , in this Court ; and the Reason was given , because that otherwise the King should lose his Amercement . 41. Fish in the River are not Titheable , if not by Custome . 42. Two referred themselves to Arbitrement , and the Arbitrators arbitrate , that one of them should pay a certain sum to the other ; and the other in consideration thereof should acquit him of a Bond , wherein they both were bounden to a third person in a 100 lib. & eo circiter : and it was objected , That the Arbitrators had arbitrated a thing incertain , by reason of these words , eo circiter . But the Opinion of the Court was , That there was sufficient certainty , because that in this Case it doth not lie in their power to know the direct sum , and because a small variation is not material : but if they ( as in Salmons case 5 Rep. ) will arbitrate that one shall be bound in a Bond to another , and not express in what sum , the same is utterly void , for the incertainty . Difference was taken where the Arbitrators arbitrate one party to do a thing which lieth in his power , and where not , without the help of a third person ; there the Arbitrament is void : and in the principal Case , the difference was taken by the Court , where the Bond is forfeit , and the penalty is incurred , and where not , or the day of payment is not incurred , there payment at the day is a good discharge and acquittance , but where it is incurred , it is not . But Justice Iones said , That he might compel the Obligee upon payment , although the Bond was forfeit , to deliver the Bond by Subpoena in Chancery ; or that he suffer an Action to be brought against him , and then to discharge it , and pay it . Goodman against VVest , Debt upon the Statute of 5 Eliz. Cap. 9. 43. THere was an action brought against the Plaintiff in the Common Pleas , who procured Process to issue against the Defendant , for his Testimony in his Cause , and a Note of the Process was lest at the Defendants house , being sixty miles from London , and twelve pence to bear his charges , which the party did accept . And the party who served the Process promised the Defendant sufficient costs . And here Mr. Iones , who was of Counsel with the Defendant , took three Exceptions . 1. Because the Process was not served upon the Defendant , as the Statute requires , but a Note only thereof , and it being a Penal Statute , ought to be taken strictly . 2. There was but 12 d. delivered to the Defendant at the time of the serving of the Process ; which is no reasonable sum for costs and charges according to the distance of place , as the Statute speaks : and therefore the promise that he would give him sufficient for his costs afterwards is not good . 3. The party who recovers by force of this Statute ought to be a party grieved and damnified , as the Statute speaks , by the not appearance of the Witness : and because the Plaintiff hath not averred , that he had loss thereby by his not appearance , therefore he conceived the Action not maintenable . For the first , the Court was clearly against him , because it is the common course to put divers in one Process , and to serve Tickets , or to give notice to the first persons who are summoned , and to leave the Process it self with the last only ; and that is the usual course in Chancery , to put many in one Subpoena , and to leave a Ticket with one , and the Label with another , and the Writ with the third ; and that is the common practice , and so the Statute ought to be expounded : But if there be one only in the Process , there the Process it self ought to be left with the party . For the second , the Court did conceive , That the acceptance should bind the Defendant ; but if he had refused it , there he had not incurred the penalty of the Statute . For he ought to have tendred sufficient costs according to the distance of the place , which 12 d. was not , it being 60 miles distant . But for the third and last Exception , the Court was clear of Opinion , That the Action would not lie for want of Averment , that the Plaintiff was damnified for the not appearance of the Defendant . And so it was adjudged that the Plaintiff Nihil capiat per Billam . 44. The Opinion of the Court was : That whereas one said of another , That he will prove that he hath stollen his Books ; that the words are actionable : for they imply an affirmative , and are as much as if he had said , That he hath stollen my Books . And so if I say of another , That I will bring him before a Iustice of Peace ; for I will prove that he hath stollen , &c. although the first words are not actionable , yet the last are . Molton against Clapham . 45. THe Defendant upon reading Affidavits in Court openly in the presence and hearing of the Justices and Lawyers said , There is not a word true in the Affidavits , which I will prove by forty Witnesses ; and these words were alledged to be spoken maliciously . And yet the Court was clear of Opinion , that they will not bear Action . And the reason was , because they are common words here , and usual where an Action is depending betwixt two , for one to say , That the Affidavit made by the other is not true , because it is in defence of his cause . And so it was here . The Defendant spake the words upon the reading of the Affidavits in a cause depending betwixt the Plaintiff and the Defendant . And therefore if I say , That J. S. hath no Title to the Land ; if I Claim or make Title to the Land : Or if I say , That J. S. is a Bastard , and entitle my self to be right Heir , the words are not actionable , because that I pretending Title , do it in defence thereof . And Justice Barckley said , That there are two main things in Actions for words , the words themselves , and causa dicendi ; and therefore sometimes , although that the words themselves will bear Action , yet they being considered causa dicendi , sometimes they will not bear Action . Now in our Case causa dicendi was in his own defence , or his Title , and therefore they will not bear Action . 46. Outlawry was reversed for these two Errors . 1. Because it was not shewed where the party Outlawed was inhabitant . 2. Because it was shewed that Proclamations were made , but not that Proclamation was made at the Parish-Church where , &c. Buckley against Skinner . 47. THere was Exception taken , because that the Defendant pleaded and justified the Trespass , cum equis ; and said nothing to the Trespass done porcis & bidentibus . And the Opinion of the Court was , That the Plea was insufficient for the whole . And Justice Iones said , That if several Trespasses are done to me , and I bring Trespass , and the Defendant justifie for one or two , and sayeth nothing to the other , that the whole Plea is naught , because the Plea is intire as to the Plaintiff , and the demurrer is intire also . But Justice Barckley was of Opinion , that the Plea was naught quoad , &c. only ; and that Judgment should be given for the other . Vide 11. Rep. 6. b. Gomersall and Gomersalls Case . 48. A man pleaded a descent of a Copy-hold in Fee : The Defendant to take away the descent pleaded , That the Ancestor did surrender to the use of another , absque hoc , that the Copy-holder died seised . And the Opinion of the Court was , That it was no good traverse , because he traversed that which needed not to be traversed ; for being Copy-hold , and having pleaded a surrender of it , the party cannot have it again if not by surrender . Like the Case of a Lease for years , Helliers Case . 6 ▪ Rep. 25. b. For as none can have a Lease for years but by lawful conveyance , so none can have a Copy-hold Estate , if not by surrender : But if a man plead a descent of inheritance at the Common Law , there the defendant may plead a feoffment made by the Ancestor absque hoc , that he died seised , because he may have an estate by disseism after the feofment . Traverse of the descent , and not of the dying seised , is not good ; so was it adjudged in this Court. Vide 24 H. 8. Dyer . 49. It was moved in Arrest of Judgment upon an Action of Trespass upon the Statute of 2 E. 6. cap. 13. because that the Plaintiff said , that the Defendant was Occupier only , and did not sh●w how he occupied , or what interest he had . And the 〈◊〉 ●pinion of the Court was , that he need not , because here he makes no Title ; and whosoever it be that taketh the Tithe is a Trespasser . And therefore Justice Iones said , That it was adjudged in this Court , that an Action lieth against the disseisor for the Tithes : so against a servant : and so if one cut them , and another carry them away , an Action lieth against any of them . 50. The Parish of Ethelburrow in London alledged a custome , that the greater part of the Parishioners have used to choose their Church-wardens ; and they chose two , the Parson chose a third . The Official of the Bishop gave Oath to one of them chosen by the Parish , but refused to swear the other , and would have sworn the party chosen by the Parson , but the Parish was against it ; upon which the Parson Libelled in the Ecclesiastical Court. And a Mandat was here praid , That the Official swear the other who was chosen by the Parish ; and a Prohibition to stay the Suit in the Ecclesiastical Court. Upon the Mandat the Justices doubted , and desired that Presidents and Records might be searched ; and at length , upon many Motions , Presidents and Records shewed , a Mandat was granted . But there being Suit in the Ecclesiastical Court , b● the other whom the Parson chose , a Prohibition was granted without any difficulty : But at first the Counsel prayed a Prohibition for not swearing the other ; which the Court refused to grant , because there was no proceeding in the Ecclesiastical Court , and a Prohibition cannot be granted where there is no proceeding by way of Suit. Vaughan against Vaughan ; in Action upon the Case upon Assumpsit . 51. THe Defendant did promise that he would make such a Conveyance of certain Lands : and pleaded , That he had made it , but did not shew the place where it was made : And the Court was clear of Opinion , that he need not ; for it shall be intended upon the Land. And so in case of performance of Covenants , it is not needful to shew the place where , &c. Norrice and Norrices Case . 52. COpy-holder for life , where the custome is , That if the Tenant die seised , that he shall pay a Heriot : The Lord granted the Seigniory for 99 years , if the Tenant should so long live : And after that he made a Lease for 4000 years . Tenant for Life is disseised , ( or more properly , ousted ) and died . Here were two Questions : 1. Whether there were any Heriot to be paid , and admitting there were , yet who should have it , whether the Grantee for 99 years , or he who had the 4000 years ? And the Court was clear of Opinion in both points without any argument , 1. That a Heriot was to be paid , not withstanding that the Tenant did not die seised , because he had the estate in right , and might have entred , although he had not the possession . And Justice Barckley compared it to the Case in C. 3. Rep. 35. a. in Butler and Bakers Case , where a man hath one acre of Land holden in Capite , and a hundred acres of Socage Land , and afterwards he is disseised of the Capite Land , and afterwards makes his will of all his Socage Land , in that case he is a person having of Capite Land , as the Statute speaks . And yet that right of Capite Land shall make the devise void for the third part ; for notwithstanding the disseisin , yet he is Tenant in Law. And as to the second point , the Court was clear of Opinion also , That he in remainder , or he that had the Estate for 4000 years ( for note the Action was brought by him in the Remainder for the Heriot ) should not have it : And their reason was , because the Tenant for life was not the Tenant of him who had the future interest of 4000 years , but of him who had the interest for 99 years . But they were not clear of opinion , that the Grantee for 99 years should have the Heriot . Justice Barckley was , that the Grantee for 99 years should have it . But Justice Iones ( there being then none in Court but they ) haesitavit . And the reason of the doubt was , because that eo instante that the Tenant died , eodem instante , the estate of the Grantee for 99 years determineth . Justice Iones put this Case : A Seigniory is granted for the life of the Tenant , the remainder over in fee ; the Tenant dieth , Who shall have the Ward ? Justice Barckley said , he who is Grantee of the particular estate : but Iones seemed to doubt it . Vide 44 E. 3. 13. Lewes against Jones in a Writ of Error . 53. JUdgment was given for Iones against Lewes in an Action brought in the Common Pleas : And Lewes here brought a Writ of Error , and assigned for Error , That he was an infant at the time of the Action brought against him ; And that he appeared by Attorney , whereas he ought to appear by Guardian , or procheine amy : The defendant pleaded in avoidance of this Writ of Error , That there was no Warrant of Attorney . The Plaintiff allegando , shewed the Error before ; And the Defendant pleaded in nullo erratum est . And the Judgment was reversed . But the Opinion of the Court was , That the better way had been for the Plaintiff to have demurred in Law : for there being no warrant of Attorney , there was no appearance at all ; and so are the Books , 38 E. 3. and 14 E. 4. 54. In Vtburt and Parhams Case , it was agreed , That a man may be Non-suit without leave of the Court , but he cannot discontinue his Suit without consent of the Court. Davis and Bellamies Case in Attaint . 55. THe Defendant brought Attaint , and the Verdict was affirmed ; and Costs prayed upon this Rule , that where the Plaintiff shall have costs , there the Defendant shall have costs : But they were denied by the Court ; for that ought to be taken in the original Action , and not in case of Attaint ; But upon the restituatur , there costs shall be given ; but that is in the original Action . 56. If two joynt-tenants be of a Rectory , and one sueth for Tithes by himself only ; it is n● cause of Prohibition : So if a Feme Covert sue solely upon a desamation , a Prohibition shall not be granted . 57. The Sheriff of a County made a Warrant Bal●ivis suis , to arrest the body of such a man , and the Bayliffs of the Liber●y return a Rescous . And Exception was taken to it , because that the Warrant was , Ballivis suis ; and the Return was made by those who were not his Bayliffs ; and it was adjudged : for the Liberty might be within his Bayliwick , and so are all the Presidents . And there was another Exception , because the place of the Rescous was not shewed , and for that the Book of 10 E. 4. was cited ; for there the Rescous was , adtunc & ibidem , and did not shew the place . To that it was answered by the Court , and agreed , that adtunc & ibidem is altogether incertain , if the place be not shewed ; but in the principal Case , the place was shewed at the first , and always after ; that tunc & ibidem only without naming of the place , and adjudg●d good . For that tunc & ibidem throughout the Declaration , hath reference to the place first shewed ; and it was adjudged good . 58. Outlawry was reversed for this Error , because that the Exigent was , Secund exactus ad Com' meum ibidem , &c. 59. A Hundred may prescribe in Non decimando , and it is good ; for it is the custome of the County , which is the best Law which ever was . But a Parish or a particular Town cannot prescribe in Non decimando : And thereupon a Prohibition was granted . And a Prohibition was granted in this Court , upon this surmise , That the Custome was , that Tithes should not be paid of Pheasants . 60. If there be no Venire facias it is not Error , but it is helped by the Statute : But if there be a Venire facias , and it is erroneous , it is not holpen by any Statute . Trinity-Term , 15º CAROLI , in the Kings Bench. 61. A Man indicted others at the Sessions-house in the Old-Baily , who were acquitted ; and the Defendants Counsel did remove the Indictment into the Kings Bench , and prayed a Copy thereof , to the end they might bring a Conspiracie , or have other remedy for the wrong done unto them . And it was denied by the whole Court , unless the Recorder will say , That there appeared malice in the prosecution : For a man shall not be punished for lawful prosecution upon just ground without malice , although the parties be acquitted by Law. The King against the Inhabitants of Shoreditch . 62. MAster Keeling Clerk of the Crown in the Kings Bench did exhibit an Information against the Inhabitants of Shoreditch for not repairing the High-way . And the Issue was , Whether they ought to repair it or no ? And it was said by the Court , That by the Common Law , the Inhabitants of a Parish ought to repair all High-ways lying within the Parish , If prescription did not bind some particular person thereto ; which was not in this Case . And in this Case some of the Inhabitants would have been Witnesses to prove that some particular Inhabitants lying upon the High-way had used time out of minde to repair it , but were not permitted by the Court , because they were Defendants in the Information ; wherefore the Jury found , That the Inhabitants ought to repair the way . 63. Two men and their wives were Indicted upon the Statute of Forcible Entry , who brought a Certiorari to remove the Indictment into the Kings Bench. Some of them did refuse to be bound to prosecute according to the Statute of 21 Iac. c. 8. and therefore , notwithstanding the Certiorari , the Justices of Peace did proceed to the trial of the Indictment : and here it was resolved , That whereas the Statute is , The parties Indicted , &c. shall become bound , &c. That if one of the parties offer to find Sureties , although the others will not , yet that the cause shall be removed ; for the denying of one or any of them shall not prejudice the other of the benefit of the Certiorari , which the Law gives unto them : And the Woman cannot be bounden . And it was farther resolved , that where the Statute saith , That the parties Indicted shall be bound in the sum of ten pounds , with sufficient Sureties , as the Justices of the Peace shall think fit , that if the Sureties be worth ten pounds , the Justices cannot refuse them , because that the Statute prescribes in what sum they shall be bound . Like to the Case of Commission of Sewers , 10 Rep. 140. a. That where the Statute of 3. H. 8. cap. 5. enables them to ordain Ordinances and Laws according to their wisdoms and discretions , that it ought to be interpreted according to Law and Justice . And here it was farther resolved , that after a Certiorari brought , and tender of sufficient Sureties , according to the Statute , all the proceedings of the Justices of Peace are coram non Iudice . The Argument of the Lord Chief Iustice , in the Case between James and Tintny , in a Writ of Error to reverse Iudgment given in the Common Pleas for Tintney Defendant , in a Replevin brought by James : the Case was thus , vis . 64. STowel was Lord of a Mannor , and Iames one of the Tenants , and there the custome was , That the Steward of the Mannor might make Laws and Ordinances for the well-ordering of the Common . And the custome was also to Assess a penalty or a pain upon those who brake those Laws and Ordinances . And also to prescribe to distrain for the penalty . The Steward made an Ordinance , That he who put his Cattle beyond such a bound , that he should pay 3 s. 4 d. Iames offended against this Ordinance , upon which the penalty was assessed , and a distress taken by Tintny Defendant in the Replevin , Plaintiff and Baily of the Lord of the Mannor ; And Judgment was given for him in the Common Pleas , and damages assessed : Upon which a Writ of Error was brought . In this Case it was agreed by the whole Court , that the Custom was reasonable : And the difference taken where the Law or Ordinance takes away the whole profit of the Commoners , and where it abridgeth it only , or adds limits or bounds to it , as in this Case . And farther it was agreed , That the Commoners are bound to take notice of these Ordinances . But in this Case , the Er●or which was assigned was this , That damages were given for the Defendant , where no damages ought to have been given : And of that Opinion was the Lord chief Justice , that no damages ought to have been given ; and with him agreed Justice Iones ; but Justice Crook and Justice Barckley , è contra . It is clear , that at the Common Law , the Defendant shall not have damages , although as to some intent the Avowant be as it were a Plaintiff and Actor . 21. H. 6. 2. 6. H. 4. 11. 35 ▪ H. 6. 47. Then the Question ariseth only upon these two Statutes , viz. 7. H. 6. cap 4. 21. H. 8. c. 19. And first , whether our Case be within the Letter of these Laws ; Admitting that not , Whether within the mischief , so as that it shall have the same remedy . And I conceive , it is not within the Letter or Equity of these Statutes : Not within the Letter ; for they speak , Where a man distrains for Rents , Customs and Services , or damage ●easant . And in our Case , he doth not distrain for any of them ; for it is manifest , that he doth not distrain for Rents , Services , or Damage feasant : And it is as clear , that he doth not distrain for Customs ; for he distrained for a penalty assessed by Custom . 1. In Alcocks case it was here resolved , That where a prescription was alledged to distrain for an Estray , and found for the Avowant , that no damages should be in that case . For it was here resolved , that the Customs intended in 21 H. 8. cap. 19. are Customs which are Services . 2ly . I hold it not within the Equity ; for the mischief at the Common Law was , That damages were not to be recovered for such Rents , Services , &c. And this penalty is no Service . And I conceive clearly , That it was not the meaning of the Makers of the Act of Parliament to extend to such penalties . And here I further take the difference which is in Pilfords case in the 10 Rep. 116. In all cases where a man at the Common Law cannot recover damages : If a Statute give damages , there he shall recover no costs ; for the same is an Act of Creation , which gives remedy where none was given before . But where there is an Act of Addition , which increaseth the damages at the Common Law , there notwithstanding he shall recover costs also . So in our Case , these being Acts of Creation which give remedy where there was no remedy before , shall be taken strictly according to the Letter , and shall not extend to such penalties as in our case : And upon this difference he cited the Cases in Pilfords case , and especially the Case upon the Statute of 5 E. 6. of Ingrossers ; the Plaintiff shall not recover costs , but only the penalty given by the Statute grounded upon 37 H. 6. 10. I agree , That there be many Presidents in the Common 〈◊〉 ▪ That damages have been allowed in our very Case ; but that is the use of the Clerks , and passed sub silentio , without any solemn debate or controversie . Vide Greislies case , and the first Case of the Book of Entries , Presidents and Judgments in this Court. Pasch. 33 Eliz. Rot. 292. Halesworth against Chaffely . A Judgment of the Common Pleas was reversed for this very point . M. 36 Eliz. Ruddal and Wilds Case . M. 44 & 45 Eliz. Rot. 22. Shepwiths Case . Avowry for relief a stronger case , Judgment was reversed , because damages was assessed , Hill. 14 Iac. Rot. 471. Leader against Standwell in a Replevin . Avowry was made for an Amercement in a Leet , and found ●or the D●fendant , and damages assessed . But the Entry upon the Record was thus , Super quo nullo habito respectu , &c. The Plaintiff was discharged of the damages , because nulla damna debent esse adjudicanda per Legem terrae ; but he shall have his costs . But it was objected by Justice Crook , That by the Statute of 4 Iac. c. 3. which giveth costs and damages to the Defendant in certain Actions there specified where the Plaintiff shall recover damages , and that where the Plaintiff is Non-suit , or verdict pass against him , That Demurrer hath been construed to be within that Statute . Notwithstanding that it is an Act of Creation , I agree that : and answer , that Demurrer is within that Statute , and the mischief of it , but it is not so in our Case ; for in our Case there is no such mischief : For there is no colour to extend it beyond the words of the Statute . For which cause I conclude that the Judgment in this case ought to be reversed . 65. A Clerk of the Court dwelling in London was chosen Churchwarden , and prayed a Writ of Priviledge , which was granted . And it was agreed by the whole Court , That for all Offices which require his personal and continual attendance , as Churchwarden , Constable , and the like , he may have his Priviledge ; but for Offices which may be executed by Deputy , and do not require attendance , as Recorder and the like ; ( from which the Justices themselves shall not be exempt ) for them he shall not have his Priviledge . And where he hath his Priviledge , for the not obeying thereof , an Attachment lieth . Swift against Heirs , in Debt upon the Statute of 2 E. 6. for setting out of Tythes . 66. THe doubt in this Case did arise upon two several Indentures found by special verdict , which were made by the Vicar and Subchauntors Corrols of Lichfield ; one 2 E. 6. the other 2 & 3 Phil. & Mar. The Question upon the Indenture of 2 E. 6. was , Whether the Grant upon the Habendum , be a grant of a Freehold to begin at a day to come , or not . The chief Justice , Justice Crooke , and Justice Barckley , were clear of Opinion , That it was a grant of a Freehold to begin at a day to come . And for that the Case is thus : In the Indenture of 2 E. 6. there is a recital of a former Lease for years : And by this Indenture in 2 E. 6. another Lease was to begin after the first Lease determined , the remainder in Fee to another : And upon that the three Justices before were clear in their Judgments , That it was a Grant of Freehold to begin at a day to come , which without doubt is void , 8 H. 7. 39 H. 6. and Bucklers case , 3 Rep. And in 8 H. 7. the difference is taken betwixt the grant of a Rent in esse , and Rent de novo . A Rent de novo may be granted in futuro , but not a Rent which is in being . But Justice Iones in this Case was of Opinion , That here is not any grant of a Freehold to begin at a day to come , because in this case the Lease doth begin presently , because the Lease recited is not found by the Jury , and therefore now it is all one as if there had been no Lease at all ; contrary in the case of the King , because it passeth a good estate of Inheritance to the Grantee . And therefore if I make a Lease for years unto a man after the expiration of such a Lease , where in truth there is no such Lease in being , the Lease shall begin presently . The Question upon the Indenture of 2 & 3 P. & Mar. was no more but this . The Vicar and Subchauntors of Lichfield made a Grant of all their Tithes in Chesterton , and name them in certain , and in specie , as Tithe-wool , Tithe ▪ Geese , Pigs , Swans , and the like , and that in a distinct clause , with especial Exception of four certain things . After which came this clause , All which were in the Tenure of Margaret P●toe : And the Jury sound that none of these Tithes were in h●r Tenure : And whether that Grant were void or not , was the Question ; And resolved by the whole Court nullo contradicente , That the Grant notwithstanding this fall● reci●al , was good , For these reasons . But first it was resolved , That where they grant all their Tithes in Chesterton , that it is a good grant , and hath sufficient and convenient certainty , 13 E. 4. and ●●●lands Case : There are two Generalities , 1. Absolute . 2. Gen●●al in particular ; ●o here ▪ And in our Case it is as c●r●ain , that demand in an Action may be for them by the name of all their Tithes in Chesterton . So in the like manner an Action of Ejectione firme will lie : For an Ejectione firme will 〈◊〉 for Tithes as it hath been adjudged here . If the King grant all his Lands , it is altogether incertain and void ; but if the King grant all his Lands in Dale , or which came to him by the dissolution of such an Abby , it is good , because it is a general●y in particular . And it was agreed , that convenient certainty is sufficient : And therefore it was said by Justice Iones , That if I grant all my Rents in Dale which I have of the part of my Mother , that he conceives the same to be good . The first reason wherefore this grant shall be good notwithstanding the false recital , was this , because the words here , All which , &c. are not words of denotation or restriction , but of suggestion or affirmation , and therefore shall not make void the Grant. And here the difference was taken between the Case of a common person , and of the King ; Suggestion which is false in the Case of the King , makes the Patent void ; but contrary in the case of a common person : And therefore i● the King be deceived either in point of profit or in point of Title , his Grant is void , 9 H. 6. Where he is not deceived in point of profit , he shall not avoid the Grant. 26 H. 8. The second reason , That a Deed ought to be construed Vt res magis valeat quam pereat , 34 H. 6. A man having a Reversion , deviseth his land in Manibus , thereby the Reversion passeth , 9 E 4. 42. Release of all Actions against Prior and Covent , shall be construed and intended all Actions against the Prior only , for an Action cannot be brought against the Covent . Farther , by this construction you would avoid this deed ; and by the Rule of Law , the deed and words of every man shall be taken very strong against himself , ut res magis valeat , as is said before . And it is against reason to conceive that it was the meaning of the parties that nothing should pass . A third reason was , because the grant was a distinct clause of it self . And the words which were objected at the Bar to be restrictive , were in another distinct clause , and therefore shall not restrain that which was before ; for words restrictive ought to be continued in one and the same sentence : Wherefore they having granted all their Tithes in Chesterton by one clause , the false recital afterwards in another clause shall not make the grant void . See 3 & 4 Eliz. Dyer in Wast , 31 Eliz. the Lord Wenworths Case in the Exchequer upon this Rule of distinct clauses : And Atkins and Longs case in the Common Pleas , upon which cases Justice Iones did rely . The fourth reason was , That construction ought to be made upon the whole Deed : And it appeareth by the context of the Deed , That it was the meaning of the parties to grant the Tithes by the Deed. Further , the Exception of the four things sheweth , That it was the meaning of the parties to grant all things not excepted , as the Tithes in this Case ; For exceptio firmat Regulam ; And to what purpose should the Exception be , if they did not intend to pass all other things not excepted ? See 4 Car. H●skins and Tr●ncars Case , Sir Robert Napwiths Case , 21 Iac. cited by the chief J●●tice to that purpose . Wherefore it was agreed by the whole Court , that Judgment should be given for the Defendant . And the Opinion of the Court was clear also , That although some of the Tithes had been in the Tenure of Margaret Pet●e , that yet the grant was good . And that was after Argument upon the Demurrer , to avoid all scruples to be after made by Counsel ; because it was conceived , That some of the Tithes were in her Tenure . Crisp against Prat in Ejectione firme . 67. THe Case upon the four Statutes of Bankrupts , viz. 34 H. 8. 13 Eliz. 1 Iac. and 21 Iac. was thus : Ralph Brisco 9 Iac. purchased Copyhold to him and his Son for their lives , the Remainder to the Wife in Fee. 11 Iac. he became an Inholder ; and about twelve years after , a Commission of Bankrupt is obtained against him ; And thereupon the Copyhold-land is sold by the Commissioners to the Defendant . Ralph Brisco dieth , and his Son Iohn Brisco entred , and made the Lease to the Plaintiff : The Defendant entred upon him , and he brought an Ejectione firme . And Judgment was given upon solemn argument by the Justices for the Plaintiff . The first point was , Whether an Inholder be a Bankrupt within these Statutes : And it was resolved by all the Justices , viz. Iones , Crook , Barckley , and Bramstone chief Justice , that an Inholder quatenus an Inholder is not within these Statutes : Justice Barckley and Justice Iones , one grounded upon the special Verdict , the other upon the Statutes , did conceive , That an Inholder in some cases might be within these Statutes . Justice Barckley did conceive upon this special Verdict , that this Inholder was within them ; because it is ●ound , That he got his living by buying and selling , and using the Trade of an Inholder . And he conceived upon these words , Buying and selling in the verdict , and getting his living thereby , although that the Jury have also found him an Inholder , that the same is within the Law. And he agreed , That he who liveth by buying or selling , and not by both , is not within the Law ; but in our case the Jury have found both , And it hath been adjudged , That he who buys and sells cattle , and stocks his ground with them , that he may be a Bankrupt within those Statutes . I agree , that a Scrivener was not within 13 Eliz. for he doth not live by buying and selling , but by making use of the monies of other men ; but now he is within 21 Iac. But in our case the Inholder buys his grass , hay , and grains , and provision also for his Guests , and by selling of them he lives . But he agreed , That if the Jury had found , that he was an Inholder only , and not that he did get his living by buying and selling , that in that case , he was out of the Law : And for these reasons , he did conceive , That this Inholder , as by the special Verdict is found , was within the Statutes of 13 Eliz. and 21 Iacobi . Justice Iones : An Inholder may be , or not be within these Laws upon this difference . That Inholder who gets his living meerly by buying and selling ( as many of the Inholders here in London do ) they are within these Statutes : But those who have Lands of their own , and have hay and grain and all their provisions of their own , as many have in the Country ; those are not within the Statutes . Farther he said , That buying and selling doth not make men within these Statutes , for then all men should be within the Statutes ; but they ought to be meant of them who gain the greatest part of their living thereby , and live chiefly or absolutely thereby . But Bramston chief Justice , and Justice Crook were clear of Opinion , that an Inholder could not be a Bankrupt neither by the Statutes , nor according as it is found by the special Verdict . And their reason was , because that an Inholder doth not live by buying and selling , for he doth not sell any thing , but utter it : He which sells any thing doth it by way of contract ; but an Inholder doth not contract with his Guests , but provides for them , and cannot take unreasonable rates , as he who sells may ; and if he doth , he may be Indicted of Extortion , which the seller cannot . Wherefore they concluded , that an Inholder is not within the Statute of 13 Eliz. & 1 Iac. Justice Crook remembred these Cases ; Webb an Inholder of Vxbridge brewed in his house , and sold his Beer to his Guests : And it was adjudged in the Exchequer , that it was not within the Statute of Brewers . And Bedells Case , who being a Farmer bought and sold cattle ; and adjudged , that he was not a Bankrupt within these Statutes . And he put th●se cases upon this reason , That where the Statutes said , Get their living by buying and selling , that it ought to b●●or the greater part ; that they gain the greater part of their living thereby . And he said , that if a Gentleman buy and sell Land he is not within the Statutes ; for it ought to be taken , those who buy and sell personal things . The second point . It was agreed by all , that Copyhold is within the Statute of 13 Eliz. & 1 Iac. First , because it is no prejudice to the Lord , because there ought to be composition with the Lord , and the Vendee ; And although the sale ought to be by Indenture , yet the Vendee ought to be admitted by the Lord. And the difference in Heydons case in 3 Rep. was agreed . Secondly , It is expresly within 13 Eliz. and therefore within 1 Iac. also by way of recital , although the Statute of 1 Iac. hath new provisions . And by the Statute of 21 Iac. it was said , That these Statutes shall be construed most beneficial for the Creditors , because their ground is suum cuique tribuere , 5 Eliz. Dyer . Vmpton and Hides Case , The Acts of Explanation shall be taken most beneficial and liberally . And the Statute of 13 Eliz. says expresly , That the Commissioners shall dispose of Lands , as well Copy as Free. But although a Copyhold be not within the later part of 13 Eliz. expresly , yet by connexion it is . And the Statute of 13 Eliz. guides the Statutes 1 & 21 Iacobi . Justice Iones did agree , That the Copyhold is within 13 Eliz. but not the person of the Copyholder , although the person be within 1 Iac. And the chief Justice said , That his Opinion was , that upon the Statute of 21 Iac. which is , That these Statutes shall he taken liberally : that Copyholds , although they had not been named , had been within these Statutes . It was said by Justice Barckley , who argued for the Defendant . That the verdict hath not found within 13 Eliz. because the verdict hath not found fraud expresly , but badges only thereof . See Meriel Littletons Case in the Chancellor of Oxfords Case , That the Fraud ought to be expresly found , but so it is not here ; for here it is found , that the Son was an Infant at the time of the purchase ; and also that the purchase was with the mony o● the Father , which are only inducements of Fraud : But he argued it was within 1 Iac. because the Father hath caused o● procured this conveyance to his child , as the Statute speaks And here is Fraud apparent , Et quod constat clarè non deb●verificari , And therefore if a man enfeoff his Son , it is Fra●● apparent , & ought not to be found particularly . But it was resolved by all the other Justices , That here was not fraud apparent , and therefore it ought to be found by the Jury . The third and chief point in this Case was , He being no Inholder at the time of the purchase , and afterwards becoming an Inholder , whether he were within the Statute of 13 Eliz. And it was resolved he was not . But here Justice Barckley , who argued for the Defendant , was against it . And he argued , that if a man purchase and sell , and afterwards become a Tradesman and Bankrupt , that that was not within the Statute ; but if he keepeth the Land in his hands , there he conceived him within the Statute , as it was in this case . And he was against the Book of the Chancellor of Oxfords Case , of relation to devest the Advowson ; and he said , It is not like to the Case in 6 & 7 Eliz. there cited . I● Eriches Case in the 5 Rep. there is a Rule taken , that A verbis legis non est recedendum ; and in our Case it is within the express words of the Statute , which are , That if any person which hereafter shall become a Bankrupt , &c. And here , he after became a Bankrupt . But it was resolved by the others , with whom Justice Barckley did concur after , that it was not within the Statute . Justice Crook argued , That it is not within the words of the Statute , which are , If the offender purchase , and that the sale shall be good against the offender : and here , he was not offender at the time of the purchase ; and using no Trade , shall he be punished for that after ? Besides , here the so● should be punished for the offence of the Father , which the Law of God will not suffer . Smith and Cullamers Case , 2 Rep. he ought to be endebted at the time , otherwise he is no offender ; And he might give away his goods before he was in Debt . And the mischief here will be , That Lands purchased 40 years before should thereby be defeated . And I hold , that it a man ba a Tradesman , and afterwards leaves his Trade , and th●n purchaseth , and afterwards becomes a Tradesman again , and a Bankrupt , that he is not within the Statute . But Justice Iones was of opinion , that i● he be a Tradesman at the time , although not an offender , yet he is within the Statute . But the chief Justice did argue , that he ought to be an offender , and the thing which makes him to be an offender is his intent to defraud his creditors . Iones : It shall be hard in this Case to cause the estate to be reached by this Statute , for perhaps it was for the marriage of the son , and perhaps the son might sell it , and after the father become Bankrupt , it would be hard to void the sale . The Chancellor of Oxfords case was a stronger case , for there the party was Indicted . And if a man be Accomptant to the King , and afterwards sell , yet the sale shall be avoided by the King. But if he be not accomptant and ●ell●th , and afterwards becomes Accomptant , the sale shall not be defeated . And here he became Inholder after the purchase , and being a clear man at the time of the purchase , he shall not now be within the Statute . Chief Justice : If that should be permitted , all things which the party did should be defeated , and therefore he agreed , That although he be a Tradesman , yet if he be not in debt ; if he purchase for another , or give unto another , if no fraud be found , it is not within the Statutes . And Judgment accordingly was given for the Plaintiff . Young against Fowler . 68. YOung brought an Action upon the Case against Fowler for disturbing of him to execute the Office of Register to the Bishop of Rochester ; and upon Not guilty , pleaded : the Jury gave a special verdict . They found that the Office was granted by one Bishop to one for life , which was confirmed by the Dean & Chapter ; which Bishop died , and afterwards Iohn Young was created Bishop . And then they found that the Office was grantable in Reversion time out of mind , &c. And that Iohn Young Bishop did grant the said Office of Register to Iohn Young his son now Plaintiff in Reversion . ( And that the Office was to be executed by the said Iohn Young or his Deputy , which Iohn Young the son was but of the age of 11 years at the time of the Grant ; but they found that he was of full age before the Tenant for life died . And then they found that Iohn Young the Bishop died ; and that his Successor granted the Office to the Defendant , who executed many things concerning the Office : And whether upon the whole matter the Defendant were a disturber or not , was the Question : And it was adjudged by all the Justices without any solemn and open argument , that the Defendant was a disturber : But the case was argued by Counsel on both sides , whose arguments and reasons were briefly following . Maynard for the Plaintiff ; There are two points . 1. Whether the grant be good within the Statute of 1 Eliz. 2ly , Whether the Grant to an Infant be good : And he held it was , because it was to be executed by his Deputy . The word of the Statute of 1 Eliz. are , [ Of any thing belonging to the Bishoprick ] and in our Case the Office of Registry is belonging to the Bishoprick . The second doubt is , Whether the Grant in Reversion be convenient ; and I hold it is , although not absolutely , yet necessarily : And therefore we are to see , 1. What conveniencie is requisite ; and 2. Whether such conveniencie be within the Law : For that , it ought to be enquired , How this office hath used to be granted , and the use ought to guide the conveniencie . See the Bishop of Salisburies Case ; a grant of an Office to two , which hath not been used to be so granted , is not good . Pase . 1 Car. Rot. 207. the Bishop of Chichesters Case . Where the Question was upon the usual Grant of Fees : and there because it was found that there was a grant of greater Fees than the use and custome warranted ; It was adjudged good for so much as the custom did warrant , and void for the residue . And the Statute it self speaks of usual Rent ; all which proves , That use ought to guide the conveniencie . 2d Point , That the grant to an Infant was good , because it is granted to be executed by his Deputy . I grant , that an Infant cannot be an Attorney , because an Attorney cannot make a Deputy . And this Grant is not inconvenient ex natura rei , neither to the Grantor , nor to the Grantee . 1. It is not inconvenient ex natura rei , for such an Office is grantable to one and his heirs , which by possibility may descend to an Infant , and there he shall execute it by Deputy ; and the same inconvenience is in this Case , if there be any ▪ And if the execution of an Office may be by Deputy where the party is not able , the same reason is in this Case . 2. It is not inconvenient to the Grantor , because as it is presumed , when a man grants an Office to one and his heirs , that he s●●s that the same by possibility may descend to an Infant ; so he says in our Case , at the time of the grant , he is an Infant . 3. It is not inconvenient to the Grantee , for it is for his benefit . 27 H. 8. 28. 8 E. 4. 7. But here it may be objected , That this Office doth concern the Commonwealth , and if the Infant commit any offence he shall not be punished , because i● should be inconvenient : To that I answer , that the Infant ought to execute it by his sufficient Deputy , and he himself shall be charged for any escape , and by forfeiture of his Office as any other may . Besides , you shall never prejudice any i● praesenti , for the future prejudice which by possibility may happen to the Commonwealth , 10 E. 6. 14. Stone and Knights Case . Hill. 3 Car. Rot. 119. An Infant was bound by arbitrament . Trin. 3 Car. Rot. 119. An Infant was bound for hi● schooling . But it may be farther objected , That it concerns the administration of Justice , which an Infant cannot do . To which I answer , that he may make a Deputy , who ought to be adjudged sufficient by the Ordinary , and he may well execute it 26 H. 6. Grants 12. An Infant elected Parson to serve a Cure who shall be examined by the Ordinary , 21 E. 4. 13. An Infant may be Mayor , 18 E. 3. 33. 26 E. 3. 63. An Infant who come in by purchase , makes him more liable than he who comes i● by descent . But in our Case , the grant à fortiori shall be good because it is executory . And he took the difference between an Executory grant as here , which by possibility may be mad● good , ( as in out Case it was , because that the Grantee was o● full age before the Office fell in possession ) and where an interest vests immediately : Farther , he conceived the Case the stronger , because the Deputy came in by the allowance of th● Ordinary . Ward for the Defendant . There are four Questions 1. Whether a grant to an Infant in poss●ssion be good . 〈◊〉 conceive not ; 1. quoad naturam rei , it is not good , because that by that Grant the Commonwealth is prejudiced . 2. Th● Office doth concern the administration of Justice ; and there●fore cannot be granted in Fee , and by consequence there shall be no descent of such Judicial Office , as hath been objected by Mr. Maynard , 1 Rep. I agree , that the Grant of a Parkership to an Infant is good and where it was objected , that it may be prejudicial by possibility , I conceive it apparens nocumentum ; as 5 Rep. 101. and therefore the like Nusance , as the case is there put , may be destroyed . 9 E. 4 , 5. Winters Case , Clerk of the Crown . 12 & 13 Eliz. Dyer 293. 9 Rep. 96. Mich. 40 , 41 Eliz. Scamblers case ; It was adjudged , That an Infant is not capable of a Stewardship of a Mannor ; and the reason is , because that thereby the Tenants may be prejudiced ; so in our Case the Commonwealth . Trin. 13 Car. Rot. 493. our very case in the Common Pleas , was adjudged . Further , an Infant is not capable of this Office , because Misfeasans & Nonfeasans may be , and he shall not be punished for it ; for an Infant at the Common Law , is not liable to an Action of Wast , or an Action upon the case . 8 Rep. 95. Doct. & Stud. The 2. Question , Whether the Grant to him and his Deputy , make the Grant good : I hold it doth not . 7 Eliz. Dyer 238. b. 9 Rep. 38. 10 E. 4. 1. 39 H. 6. 54. The Officer is chargeable for his Deputy , and not the Deputy himself : And if it be so , if this Grant should be good , here should be a Misdemeanor in the Office , and none should be punished for it ; which should be inconvenient : for the Deputy cannot be charged , nor the Officer in our Case , because he is an Infant , and therefore the Grant is not good . The 3. Quest. Whether this subsequent Act of the Infant coming of full age , before the falling of the Office into possession , hath made the Grant good . I hold , that not , upon the common Rule , Quod initio non valet , &c. So is the Bishop o● Salisburies Case , Sir George Reignalls Case , and 27 H. 6. 10. The 4. Question , Whether this Grant in Reversion to a man of full age , be good at the Common Law ? and I hold it is not ; because it is a judicial Office , which is not grantable in Reversion : with which agrees 11 Rep. Auditor Curles Case . The 5 Question , Whether it be within the Statute of 1 Eliz. And I hold it is not , because that must take effect from the time of the granting of it , as the Statute speaks . 6. I conceive it is not a necessary Grant , because it is not within the exception of the Statute , Et exceptio firmat Regulam . It was objected , That Usage makes these Grants good . I conceive the contrary , That Usage is not a Rule to measure a thing , whether it be convenient or not . And a grant may be good , which is not used . And the Courts of Justice ought to judge what is convenient or necessary , and what not . So in Litt. and the Commentaries , Say and Smiths case . Besides , it is not Necessary , for he stands but for a Cypher , and doth nothing , and therefore not Necessary . Besides , it is inconvenient , and takes from the Successor honorem munificentiae , for by the same reason that he may grant one , he may grant all the Offices in Reversion , so as his Successors shall not have one to grant ; and by this means shall take away a flower of the Bishoprick . 10. Rep. 61. a. The Opinion of Popham Chief Justice : An Office is not Grantable in Reversion by the Bishop . But the Court was clear of Opinion , without Argument for the Plaintiff , That the Grant is good . Crooke he denied that such an Office is not grantable in Fee , and instanced in the Ushers Office and Chamberlains of the Exchequer , which are Judicial Offices , and yet granted in Fee : And it was denied that this is an Office of Judicature , but Ministerial only . To that which was objected , That the Action doth not lie against an Infant ; It was answered , That an Action upon the case doth lie against an Infant Executor ; an Action upon the Case will lie against an Infant for a Nusance , or for words , by the common Law. And in our Case he shall forfeit his Office. An● Infant may be Executor , in which greater confidence and trust is reposed ; and in our Case the Grant to an Infant is not void ab initio , but voidable only upon contingent ; And 〈◊〉 conceive , that if the usage will warrant it , That he may grant all the Offices in Reversion : and upon that difference depends the Opinion of Popham , in the 10. Rep. for there it doth not appear , that the Custom was to grant in Reversion : And therefore it was not good . Barckley : The King may grant i● Reversion without any Custom . 9 Eliz. Savages Case . And there is no question , but that Custom may make an Office grantable in Reversion , in the case of a common person . 1 H. 7. Crofts case . Also the case of the Usher of the Exchequer granted in Fee. And there is no question , but a Judicial Office may be granted to one and his Heirs . And the Office of Warden of the Fleet , which is an Office of great trust , is granted in Fee. And as such Offices may descend to an Infant ; so a Feme covert may have such an Office , for she may have a husband who may execute it ; and so an Infant may have a deputy . 7 H. 6. There is a difference amongst Infants ; an Infant , before the Statute of 10 Eliz. might have been Presented to a Benefice , and he was Parson de facto . So a meer Lay man : but the same ought to be understood of an Infant who was of age of discretion . A Preb●ndary was granted to Prideaux , at the age of 3 years , and was adjudged void , because he was not of age of discretion ; but if he had been , it had been good . And I conceive , that it is necessary and convenient that it should be granted in Reversion , for by that means the Office would never be vacant , and should be always provided of those who were sufficient to execute it . So in our Case the Infant may be instruct●d before he come of full age . And farther , as an Infant when he is Presented , is to be allowed or disallowed by the Ordinary ; so the Deputy is by the Court. The Statute of 1 El. makes against you ; for although it be not within it , yet it may be good at the common Law , like the concurrent Lease , which is good at the common Law , and not within the Statute of 1 Eliz. The rest of the Justices did all agree with Barckley . And Justice Iones said , that Scamblers Case , cited by my Lord Coke in Institutes 3. b. was adjudged contrary , That an Infant was capable of a Stewardship in Reversion ; and he said that it was adjudged in the Exchequer , that an Ignorant man was capable of an Office in Reversion ; which doth not differ from our Case . Sir John Saint-Johns Case . 69. THe Lady Cromwell was possessed of divers Leases , and conveyed them in trust , and afterwards married with the said Sir Iohn Saint-Iohn ; and afterwards she received the mony which came of the trust , and with part of it she bought Jewels , and part she left in Mony , and died . And Sir Iohn Saint-Iohn took Letters of Administration of the goods of the Wife : And the Ecclesiastical Court would make him accomptable for the Jewels , and for the Mony ; and to put them into an Inventory . And the Opinion of the Court was , That he should not put them into the Inventory , because the property is absolutely in the husband , & he hath them not as Administrator ; but things in action he shall have as Administrator , and shall be accomptable for them : and in that case a Prohibition was granted as to the Mony. It was moved again this Term , That the Lady Saint-Iohn did receive part of the Mony , put it out , and took Bonds for it in the names of others , to her use ; and the Spiritual Court would have him accompt for that , and thereupon a Prohibition was prayed ; but the Court would not grant it . And there Barckley differed in Opinion , and so did the Court , some being for it , and some against it . The reason given wherefore the Prohibition should not be granted , was , because the Mony received upon the trust , is in Law , the Monies of the Trustees , and the wife hath no remedy for it , but in Court of Equity ; and therefore that the husband should have it as Administrator . The reason urged wherefore the Prohibition should be granted , was , because here the trust was executed , when the wife had received the Mony , and by the Receipt the husband had gained property therein as husband , and therefore should not be accomptable for it . Farther , here the Ecclesiastical Court should determine the trust , of which they have no Jurisdiction , for they have not a Court of Equity . And the Court ruled , That the Counsel should move in Chancery for a Prohibition , for in Equity the mony did belong to the wife . And here it was agreed , That if the Trustees consent that the wife shall receive the mony , as in our Case the contrary doth not appear , that there the husband might gain a property as husband ; but because the Court conceived , that the Ecclesiastical Court had not Jurisdiction , a Prohibition was granted . And here it was agreed , That if a woman do convey a Lease in trust , for her use , and afterwards marrieth , that in such case , it lies not in the power of the husband to dispose of it ; and if the wife die , the husband shall not have it , but the Executor of the wife ; and so it was said , it was resolved in Chancery . 70. Barckley and Crooke , there being no other Justice at that time in Court , said , That upon a Petition to the Archbishop , or any other Ecclesiastical Court , no Prohibition lieth . But there ought to be a Suit in the Ecclesiastical court . And by them , a Libel may be in the Ecclesiastical court , for not repairing a way that leadeth to Church , but not for repairing of a high-way : and upon suggestion that the Libel was for repairing a high-way , a Prohibition was granted . 71. Many Indictments were exhibited severally , against several men , because each by himself , suffered his door to be unrepaired , and it was shewed in the Indictments , that every one of them ought to repair : And thereupon it was moved , that they might be quashed ; but the Court would not quash them without certificate , that the parties had repaired their doors ; but it was granted , that Process should be stayed , upon motion of Counsel that reparation should be immediately done . But at the same time , many Indictments , for not repairing of the high-way , which the Parishioners ought to have repaired , according as it was found by Verdict , the same Term were quashed for the same defect : But in truth , there was another fault in the Indictment , for that it was joynt one only , whereas there ought to have been several Indictments ; but they were quashed for the first defect . 72. A Replevin was brought in an Inferiour Court , and no Pledges de retorno habendo , were taken by the Sheriff , according to the Statute of West . 2. c. 2. After the Plaint was removed into this Court by a Recordari , and after Verdict given , it was moved in arrest of Judgment , want of Pledges ; for th●se reasons , because the Pledges de retorno habendo , are given by that Statute , as 2 H. 6. 15. and 9. H. 6. 42. b. And that Statute saith , That Pledges shall be taken by the Sheriff , and therefore no other can take them , notwithstanding that Pledges might be found here in Court. And 3 H. 6. 3. and F. N. B. 72. a. say , That where Pledges are found , that they shall remain , notwithstanding the removal of the Plaint by Recordari : and the reason is , because the Sheriff is a special Officer , chosen to that purpose by the Statute , and therefore no other can take them . Besides , there would be a failer of Justice , if the Court should put in Pledges , for then there might be no remedy against the Sheriff , for that he found no Pledges , and no remedy against the Pledges , because they are not found according to the Statute , and so a failer of Justice ; and by that means the Sheriff should frustrate and avoid the Statute ; for no Pledges should ever be found , and so he should take advantage of his own laches and wrong . Farther , it was objected , that these proceedings are the judicial act of the Court , and therefore the Court will not alter or diminish them . L. Entries 1. and 3 H. 6. And farther , it was said , That the cases of Young and Young , and Dr. Hussies case , adjudged in this Court , That Pledges may be found at any time before Judgment were , in Action upon the Case , and not in Replevine , as our case is , for which there is special Provision made by the Statute . But it was answered , and agreed by the whole Court , that Pledges may be found by this Court : for the Pledges given by the Statute of West . 2. are only to give remedy against the Sheriff ; and if the Sheriff do not his duty , but surceaseth , we may as at the Common Law put in Pledges , and yet notwithstanding remedy may be against the Sheriff upon the Statute for his neglect . And farther it was agreed , That Pledges may be found at any time before Judgment , as in Young and Youngs Case , and Dr. Hussies Case it was adjudged : And Judgment was affirmed . 73. There can be no second Execution granted out , before that the first be returned . 74. Two Joyntenants of a Rectory agree with some of their Parishioners , that they shall pay so much for Tithes : and notwithstanding , one of th●m sueth for Tithes in the Ecclesiastical court ; and a Prohibi●ion was prayed , because that one of them cannot sue without the other ; and the Court would not grant it : and their reason was , because although that one of them cannot sue without the other by our Law ; yet perhaps , the spiritual Court will permit it . 75. Husband and Wife brought a Writ of conspiracie , and it was adjudged that it would not lie . And Iones cited this case , That Husband and Wife brought an Action upon the Case against another for words , viz. That the Husband and Wife had bewitched another ; and it was not good , because that the wife cannot joyn for Conspiracie made against the husband , nor for trespass of Battery , as the Book is , 9 E. 4. But Justice Crook was of Opinion ▪ That the Conspiracie would well lie , because that the Indictment was matter of Record , and therefore not meerly Personal : but the whole Court was against him : and Justice Barckley took the difference , where they sue for Per●onal wrong done to th●m , there they shall not joyn ; but wher● they have a joyn● Interest , as in case of a Quare impedit , there they shall joyn . Thurston against Ummons in Error to Reverse a Iudgment in Bristow . 76. THurston brought an Action upon the Case against Vmmons , & declared , That the Defendant brought an Action against him , at the Suit of Hull , & without his privity : And thereupon did arrest and imprison the Plaintiff , by reason whereof all his Creditors came upon him , and thereby that he had lost his Credit , &c. And a Verdict was found for the Plaintiff , and thereupon Error brought ; and two Errors were alledged . 1. That the Action will not lie , because in truth there was a just Debt due to Hull , in whose name he sued . 2. Because it is not shewed , that the causes of Actions , which the other Creditors had against him , did arise within the Jurisdiction of the Court of Bristow . And notwithstanding the first Error alledged , Judgment was affirmed by the whole Court upon this difference ; where Hull himself sueth or commenceth Suit against the Plaintiff , there although by that Suit he draw all the Creditors upon the back of him , and so perhaps undo him , yet because it was a lawful act ; no Action upon the Case lieth against him : But where one commenceth Suit against another , in the name of another , and without his privity , that is Maintenance , which is a tortious Act , and therefore an Action will lie : so in the principal case . As to the second Error alledged , the Court differed in Opinion . Barkley : That the damages were ill assessed , because they were given aswel for the Actions brought by the other Creditors . But Justice Bramston contrà , That the damages were well assessed , because that the Actions brought by the Creditors were added for aggravation only , and the cause of the Action was the Arrest and Imprisonment , like the case where a man speaks words which are in part actionable , and others only put in for aggravation , and damages is assessed for the whole , it is good . There was a third Error assigned , That the Venire facias was , de Warda omnium Sanctorum de Bristow , without shewing in what Parish . Childe against Greenhil . 77. CHilde brought Trespass against Greenhill for Fishing in seperali piscaria of the Plaintiff , and declared that the Defendant pisces ipsius cepit , &c. And Verdict found for the Plaintiff . And it was moved by Saint-Iohn in Arrest of Judgement , because the Plaintiff declared of taking of pisces suos , whereas the Plaintiff , they being ferae naturae , hath not property in them . Register 94 , 95. and F. N. B. and Book Entries . 666. No count , that the Defendant cepit pisces ipsiu● , but ad valentiam , &c. without ipsius . So Fines Case in Dyer . 7 H. 6. 36. 10 H. 7. 6. 12 H. 8. 10. by Brudnell . 13 E. 4. 24. 7 Rep. case of Swannes . And the Book of 22 H. 6. 59. is over-ruled by the case of Swannes . 34 H. 6. 24. And the same is matter of substance , and therefore not helped after Verdict . An Action of Trover and Conversion against husband and wife quia converterunt , is not good , and it is not helped after Verdict , because it is matter of substance . Rolls for the Defendant ; I agree , that lepores suos , or pisces suos , without any more , is not good . But where he brings an Action of Trespass for taking them in his Soil , there it is good , because it is within his Soil . So in our case , for taking pisces suos in his several Piscary : and with this difference agree 22 H. 6. 59. 43 E. 3. 24. so Regist. 93 , & 102. 23 H. 6. tit . Tresp . 59. & 14 H. 8. 1. and the Book of 43 E. 3. saith , That in Trespass , the Writ shall not say , Damam suam , if he do not say , that it was taken in his Park or Warren , or saith damam domitam , or as the Book is in 22 H. 6. in my Soil or Land ; and by Newton , he shall say there damas suis. And admit that it was not good , yet I hold , that it is helped after Verdict , because it is not matter of Substance ; for whether they be pisces suos or not , the Plaintiff shall recover damages . Justice Barckly : It is true , that in a general sense they cannot be said pisces ipsius , but in a particular sense they may ; and a man may have a special or qualified property in things which are ferae naturae , three ways ; ratione infirmitatis , ratione loci , & ratione privilegii : and in our case the Plaintiff ●ath them by reason of Priviledge . And it was agreed by the whole Court , That Judgment should be affirmed , upon the very difference taken by Rolls , that where a man brings Trespass for taking pisces suos , or lepores suos , &c. and the like , that the Action will not lie . But if he bring Trespass for fishing in his several Piscary , as in our Case , or for breaking of his Close , and taking lepores suos , &c. there it will lie . Pitfield against Pearce . 78. IN an Ejectione firme , the Case was thus . Thomas Pearce the Father , was seised of Lands in Fee , and by Deed , in consideration of Marriage , did give and grant this Land to Iohn Pearce , the now Defendant , his second Son , and to his Heirs after his death , and no Livery was made : Thomas Pearce died , the Eldest Son entred , and made a Lease to the Plaintiff , who entred , and upon Ejectment by the Defendant , brought an Ejectione firme . Twisden : The only question is , whether any estate passeth to the Son by the Deed ; and it was said , there did , and that by way of Covenant . And it was agreed , That in this Case if Livery had been made it had been void , because that a Freehold cannot begin at a day to come . But I may Covenant to stand seised to the use of my Son after my death . So a man may surrender a Copyhold , to take effect after a day to come . Com. 301. So a man may bargain and sell at a day to come . 1 Mar. Dyer . 96. Chudleighs Case . 129. 20 H. 6. 10. A use is but a trust betwixt the parties , and 7 Rep. 400. There need not express words of Covenant , to stand seised to an use . 25 Eliz. Blithman and Blithmans case , 8 Rep. 94. Besides , these words dedi & concessi , are general words , and therefore may comprehend Covenant : and words shall be construed , that the Deed may stand , if it may be . 8 Ass. 34. 7 E. 3. 9. But I agree , that if the intent appeareth that it shall pass by transmutation of possession , that there it shall be so taken ; but here his intent doth not appear to be so , for if there should be Livery , then the son should take nothing , for the reason before given , which is against his meaning . Mich. 21 Iac. Rot. 2220. Buckler and Simons Case . Dyer 202. Vinions case . The cases cited before , are in the future tense , but the words are here , I give , &c. 36 Eliz. Callard and Callards Case ; Stand forth Eustace , reserving an estate to my self and my wife , I do give thee my Land : and the better Opinion was , That in that case it did amount to a Livery , being upon the Land , for his intent is apparent . Mich. 41 & 42 Eliz. Trelfe and Popwells Case , adjudged in such case , That an use shall be raised : For which it was concluded , that in this case there is a good estate raised to Iohn Pearce by way of Covenant . Rolls : I conceive , that not estate is raised to Iohn Pearce by this conveyance . It was objected , That it shall inure by way of Covenant , to raise an use . I agree , that if the meaning of the party may appear that he intended to pass his estate by way of raising of an use , otherwise not . And here is no such appearance . Foxes Case in 8 Rep. is a stronger case ; and here it doth not appear that he meant to pass it by way of use . But by the word [ give ] he intended transmutation of possession . 8 Rep. Bedells case , Mich. 18. Car. Rot. 2220. in the Common Pleas it was adjudged , That a gift of a Remainder after the death of the grantor was void ; wherefore he concluded for the Plaintiff , and so Judgment was given by the whole Court. And Justice Iones said , When a man makes a doubtful Conveyance , it shall be intended a Conveyance at the Common Law. And it shall not be intended that the Father would make him Tenant for life only punishable of wast . Mich. 15º Car ' in the Kings Bench. 79. IT was moved for a Prohibition to the Counsel of the Marches , and the Case was such : A man seised of Lands in Fee , made a Feoffment to the use of himself for life , the remainder in tail to I. S. He in the remainder Levied a Fine . And the Counsel of the Marches , upon a surmise , That the Tenant for life died seised , according to their Instructions , would settle the possession upon the heir of Tenant for life , against the Conusee . For their Instructions were made , That where a man had the possession by the space of three years , that the same should be settled upon him , until trial at Law were had . But the whole Court was against it , because it doth appear that he had but an estate for life , and so the possession appertained to him in the remainder . And here it was said by Justice Barckley , that their Opinion hath been , That the possession of Tenant for life should be the possession of him in the Remainder , as to this purpose . Note that the Principal case here was ( although the Case before put was also agreed for Law ) thus : Tenant in Tail levied a Fine , to the use of himself for Life , the remainder in Fee to I. S. and died : In that Case the Council in the Marches would settle the possession upon the heir of Tenant in tail , against the Purchaser , who held in by the Fine which had bar'd the estate tail , by which the Issue claimed ; and the whole Court was against it , for which cause a Prohibition was granted . 80. Habeas corpora was directed to the Porter of Ludlore , to bring the bodies of Iohn Shielde and William Shielde into the Kings Bench ; the case shortly ( as appears upon the retorn ) was this . Powell the Father brought a Bill , in the nature of an Information , against the said Iohn and William Shield , before the Council of the Marches in Wales , for an unlawful Practice , Combination , and Procurement of a clandestine Marriage in the night , betwixt Mary Shield a Maid-servant , and the Son of Powell , who was a Gentleman of good credit and worth , the Parson also being Drunk , as he himself sware , and the same also being without Banes or Licence ; for which offence they were severally Fined to the King , and an hundred Marks damages given to the Plaintiff , and farther ordered by the Council , that they should be imprisoned till they paid their several fines to the King , and damages to the Party , and found Sureties to be bound in Recognisance for their good behaviour , for one year , and till they knew the farther Order of the Council : and these were the causes which were retorned . And upon this retorn , Glynn , who was of Counsel with the Prisoners , moved many things ; and many of them , as was conceived by the Court , altogether impertinent . But the Objections which were pertinent were these . First , That the Councel of the Marches , as this case is , have no Jurisdiction , because the clandestine Marriage is a thing meerly Spiritual , and therefore not within their instructions . The second was , That they have exceeded their Instructions , in that they have given damages to the party above fifty pounds . For by their Instructions , they ought not to hold Plea where the Principal or Damages exceed fifty pounds . But as to the first he said , there may be this Objection ▪ That they did not punish them for the clande●●in● . Marriag● which in truth is a thing meerly Spiritual , but for the unlawful Practise and Combination , and for the execution of it . To which he answered , That they have not Juristiction of the Principal , and therefore not of the Accessory : ( here note that it was afterwards said by Bramston Chief Justice , That the unlawful Practise and Combination was the Principal , and the clandestine Marriage but the Accessory ; which was not contradicted by any . ) Farther , it was objected by Glynn , That they were Imprisoned for the damages of the Plaintiff , and it doth not appear , whether it was at the Prayer of the Party , as he ought by the Law. Bankes , the Kings Atturny-General contrary . And as to the first , Their Instructions give them power to hold Plea of unlawful Practises and Assemblies : And this is an unlawful Practise and Assembly , and therefore within their Instructions : And although that Heresie , and clandestine Marriage , and such offences , per se are not within their Instructions , yet being clad with such unlawful circumstances and practises , they are punishable by them . As to the second he said , The Instruction which restraineth them that they do not hold Plea above fifty pounds , is only in civil Actions , at the several suit of the party : But there is another Instruction , which gives them power , where the cause is criminal , to assess damages according to the quality of the Offence , and at their discretions . As to the third Objection , he said , That the Retorn , being that they were in execution for the damages , it ought to be meant at the Prayer of the Party , otherwise it could not be . For which causes he prayed th●● the Prisoners might be remanded . And the whole Court ( Crooke being absent ) were clear upon this Retorn , That they should be remanded ; because it appeareth that their Fines to the King were not payed : And therefore , although that the other matters had been adjudged for them , yet they ought to be remanded for that one . And as to the Objections which were made , the Court agreed with Mr. Attorney , except in the point of Damages , and for the same reasons given by him . But as to the point of the Damages , whether they have gone beyond their Instructions , and so exceeded their power in giving above fifty pounds damages or not ; It seemed to the Court they had ; and as it seemed to them , if the Retorn had been , That the Kings Fines were paid , it would have been hard to maintain that the assessing above fifty pounds damages , was not out of their Instructions : but because the Kings Fines were not paid , they were Remanded , without respect had thereunto ; for the reasons given before . 81. It was said by the Court , That when Judgment is given in this Court against another , and Execution upon it , and the Sheriff levieth the mony ; the Lord Keeper cannot order that the mony shall stay in the Sheriffs hands , or order that the Plaintiff shall not call for it : for notwithstanding such Order he may call for it . And it was farther said by the Court , That an Attachment shall not be granted against the High Sheriff for the contempt of his Bayliffs . And a Writ of Error is a Supersedeas to an Execution ; but then there ought to be notice given to the Sheriff : otherwise , if he notwithstanding serve the Execution , he shall not run in contempt , for which an Attachment shall be granted . 82. Serjeant Callis came into Court , and moved this case : Chapman against Chapman , in Trespass done in Lands within the Dutchy of Cornwal , which were Borough-English , where the custome was , that if there were an estate in Fee in those Lands , that they should go to the younger Son , according tthe custome ; but if in Tail , the should descend to the Heir at Common Law : And it was moved by him , that the custom was not good , because it cannot be at one time customary , and go according to the custom , and at another guildable . And the whole Court ( Crooke only being absent ) were against him , that the custom was good . Hicks against Webbe . 83. IN Trespass for a way , the Defendant did justifie , and said , that he had a way not only ire , equitare & averia sua fugare ; but also carrucis & carreragiis carriare . The Plaintiff traversed it absque hoc , that he had a way not only ire , equitare , &c. in the words aforesaid : and thereupon they were at issue , and found for the Plaintiff . Glynn moved in arrest of Judgment , that the Issue was ill joyned , because it was not a direct affirmative , but by inducement only . And the whole Court was against him . And Justice Iones said , That if I say , that not only Mr. Glynn hath been at such a place , but also Mr. Iones , without doubt it is a good affirmative , that both have been there . But they all agreed , that the pleading was more elegant than formal . 84. In the Case betwixt Brooke and Boothe : Justice Barckley said , that it is a Rule , That if there be two things alledged , and one of necessity ought to be alledged , and he relies on-only upon the other , it is no double Plea : As if a man plead a Feoffment with Warranty , and relieth upon the Warranty , it is not double . 85. Justice Barckley said , That the Court of the Exchequer , they may make a Lease for three Lives , by the Exchequer-Seal . Clarke against Spurden . 86. IN a Writ of Error to reverse a Judgment given in the Court of Common Pleas , the case was shortly thus : A. wife of I.S. intestate , promiseth to B. to whom Adnistration was committed , that if he shall relinquish the Administration at the request of C. and suffer A. to Administer , that A. will discharge B. of two Bonds . In Assumpsit brought by B. in the common Pleas , he alledged that he did renounce Administration , and suffered A. to Administer , and that A. had not discharged him of the two Bonds . And it was found for the Plaintiff . And thereupon Error was brought , because B. doth not shew , that he did renounce the Administration at the request of C. And Rolls for the Plaintiff , in the writ of Error , did assign the same for Error . Justice Barckley ( all the other Justices being absent ) held that it was Error ; for consideration is a thing meritorious , and all ought to be performed , as well the request on the part of C. as the permission of the part of B. which ought to be shewed : For perhaps B. was compelled to relinquish it in the Ecclesiastical Court , as it might be ; for of right the wife ought to Administer . And therefore it ought to have been averred , that it was at the request of C. And therefore , if it had been that he should renounce at the charge of C. it ought to be averred , that it was at the charge of C. And it was adjourned . 87. A man Libelled in the Spiritual Court , for Tithes for barren cattle : and it was moved for a Prohibition upon this suggestion , viz. That he had not other cattle than those which he bred for the Plough and Pale ; and thereupon Barckley being alone there , granted a Prohibition . And the same Parson also Libelled for Tithes of Conies ; and for that also he granted a Prohibition , for they are not Titheable , if not by custome : And here Barckley said , That if Land be Titheable , and the Tenant doth not plough it , and manure it ; yet the Parson may sue for Tithes in the Ecclesiastical Court. North against Musgrave . 88. IN Debt upon the Statute of 1 & 2 Phil. & Mar. c. 12. the words of which Statute are , That no man shall take for keeping in pound , impounding , or poundage of any manner of distress , above the sum of four pence , upon pain of forfeiture of five pounds , to be paid to the party grieved . And the Plaintiff shewed that his Cattle were distreyned and impounded , and that the Defendant took of him ten pence for the poundage : And thereupon the Plaintiff brought an Action for the penalty of five pounds , and found for the Plaintiff . And the Judgment was , That he should recover the five pounds , and damages , ultra & praeter the mony taken for the poundage . And thereupon a Writ of Error was brought , and three things assigned for Error . First , because the Action was brought for the penalty of five pounds only , and not for the six pence which was taken above the allowance of the Statute , which ought not to be divided . Which was answered by Justice Barckley ( all the other Justices being absent ) That notwithstanding it is good ; for true it is , that he cannot bring his Action for fifty shillings , part of the penalty , because it is entire ; but here are two several penalties , and he may divide and disjoyn them if he will , or he may wave the six pence . For quilibet potest renunciare , juri pro se introducto . The second was , That he doth not demand that which is ultra & praeter the four pence given by the Statute : and yet the Judgment is given for that , which is not good : To which Justice Barckley said , That the Judgment was good . For no judgment is given for that which is ultra & praeter the four pence , but only for the four pounds , because he doth not demand it . And we cannot judge the Judgment to be erroneous by Implication . The third Objection was , That Costs and Damages are given , which ought not to be upon a penal Law. For he ought not to have more than the Statute giveth ; and therefore upon the Statute of Perjury , no Costs are given : so upon the Statute of Gloucester of Wast , the Plaintiff shall recover no more than the treble value . But Rolls who was on the contrary , said , That there are many presidents in the common Pleas , that Damages have been given upon this Statute . But Barckley and Iones , who afterwards came , and seemed to agree with Justice Barckley in the whole , was against it , That no Damages ought to be given ; and desired that the Presidents might be viewed . But here Rolls offered this difference : Where the penalty given by the Statute is certain , as here , upon which he may bring Debt , there he shall recover Damages : but where the penalty is uncertain , as upon the Statute of Gloucester , for treble damages , the Statute which giveth the treble value , and the like ; there , because it is incertain , he shall have no more ▪ Barckley asked Mr. Hoddesdon , If the Informer should recover Damages . And he and Keeling Clerk of the Crown , answered , No ; but said Damages should be given against him ▪ and it was adjourned . 89. Skinner Libelled in the Ecclesiastical Court for th● Tithes of Roots , of a Coppice rooted up . And Porter prayed Prohibition . And it was said by Iones and Barckley Justice●● no other Justice being present , That if cause were not shewed before such a day , that a Prohibition should be awarded because it is ad exheredationem , and utter destruction of 〈◊〉 ▪ And the Opinion was , that the Branches should be priviledged . And a man shall not pay Tithes of Quarries of Ston● ▪ And Barckley said , It had been adjudged , That a man shal● not pay Tithes for Brick and Clay . 90 A. said to B. Hast thou been at London to change 〈◊〉 Mony thou stolest from me ? And it was Objected , That thes● words are not actionable , because they are an Interrogator● only , and no direct affirmativ● . But by Barckley and Ione● ( the other Justices being absent ) the words are actionabl● . For the first words , Hast thou been at London , are the word● of Interrogation ; and the subsequent words , viz. The 〈◊〉 thou stolest from me , is a positive affirmation . And Barckley said , That it had been oftentimes adjudged , That words 〈◊〉 Interrogation should be be taken for direct affirmation . Ione● also agreed to it ; and he said that this Case had been adjudged , That where a man said to I. S. I dreamed this night that you stole an Horse , That the words are actionable . And if these and ▪ the like words should not be actionable , a man might be abusive , and by such subtile words always avoid an Action . 91. A. said of B. that he took away money from him with a strong hand , and alledged that he spoke those words of him innuendo felo●icè : and for them the Plaintiff brought an Action upon the Case . And by Barckley and Iones ( none other being present ) the Action doth not lie : ●or he may take money from him manu forti , and yet be but a Trespasser ; and therefore the Innuendo is void , for that will not make the words actionable , which are not actionable of themselves . 92 Justice Iones said , that it was a question , Whether a Bar in one Ejectione firme , were a Bar in another . And Justice Barckley said , that it is adjudged upon this difference , That a Bar in one Ejectione firme , is a Bar in another , for the same Ejectment ; but not for another , and new Ejectment : to which Iones agreed . Dickes against Fenne . 93. IN an Action upon the Case for words ; the words were these : the Defendant having communication with some of the Customers of the Plaintiff , who was a Brewer , said , That he would give a peck of Malt to his Mare , and she should piss as good Beer as Dickes doth Brew . And that he laid ad grave damnum &c. Porter for the Defendant ; that the words are not actionable o● themselves ; and because the Plaintiff hath alledged no special Damage , as loss of his Custome , &c. the Action will not 〈◊〉 Rolls : that the words are actionable : and he said , that it had been adjudged here , That i●●ne say of a Brewer , That he brews naughty Beer , wi●hout more saying , these words are actionable , without any special damage alledged . But the whole Court was against him ( Crooke only absent ) That the words of themselves , were not actionable , without alledging special damage ; as the loss of his Custome , &c. which is not here . And therefore not actionable . And Barckley said , That the words are only comparative , and altogether impossible also . And he said , that it had been adjudged , that where one says of a Lawyer , That he had as much Law as a Monkey , that the words were not actionable ; because he hath as much Law , and more also . But if he had said , That he hath no more Law than a Monkey , those words were actionable . And it was adjorned . Hodges and Simpsons Case . 94. A Man brought an Action of Trover and Conversion against husband and wife , of two Garbes , Anglicè , Sheaves of Corn ; and said that they did convert those sheaves ad usum ipsorum , viz. of the Husband and Wife . And here were two things moved by Hyde . First , that he shewed the Conversion to be of two Garbes , Anglicè , Sheaves of Corn : which plea is naught and incertain . And Courts ought to have certainty ; but here it is not shewed , what Corn it was . And the Anglicè is void , and therefore no more than Trover and Conversion of so many Sheaves , which is altogether incertain ; and therefore not good . The other thing is , That the Plaintiff sayth , that the conversion was ad usum ipsorum , which cannot be , for the wife hath no property during the life of the husband ; and therefore cannot be ad usum ipsorum . And he cited two Judgments in the point , where it was adjudged accordingly . And Justice Barckley said , that it had been many times so adjudged . But Justice Iones said , that there may be a Conversion by the wife to her use , as in this case to bake the Barley into bread , and to eat it her self . And Bramston Chief Justice said , that a wife hath a capacity to take to her own use ; for there ought of necessity to be property in the wife , before the husband can have by gift in Law : and they desired to see Presidents . And therefore it was adjourned , as to this point . But by the whole Court , the other was not good . More of the Case of North and Musgrave . 95. MAynard for the Plaintiff , in the Writ of Error , That the Judgment was erroneous : First , because the damages and costs were given , where none ought to be given , being a penal Law : and therefore no more than the penalty shall be recovered . And he remembred the rule taken in Pilfords case . 10 Rep. 116. a. and he cited divers Presidents also for it . Cokes Book of Entries 31 & 41. And Presidents upon the Statute of Perjury . 38 , 39. Secondly , because he divided the Penalty given by the Statute , which ought not to be , for by such means the offender should be doubly vext ; for he might sue him after for the six pence praeter & ultra that which was taken for the distress . And he said , it is like to the case of an Annuity , which is entire and cannot be divided . Thirdly , he said , That the Judgment it self was erroneous , because that Judgment is given for more than he demands . For the Judgment is , quod recuperet 5. li. ultra & praeter , that which is above the 4 d. given by the Statute . Rolls contrary , that the Damages and Costs are well given ; and the same is out of the rule of Pilfords case : because that the Action is no new action , but the thing is a new thing , for which the old Action is given : And the Damages and Costs are here given for the Suit and Delay , and not for the Offence . And he cited also Presidents for him , viz. The new Book of Entries 163 , 164. For the second point , he said , That they are several penalties which are given , and therefore he might bring his Action severally for them , if he would . As to the third point , That Judgment is given for more than the party declares : it is not so , for then the Judgment shall be made vitious by Implication , which ought not to be . And as to dividing of the penalty and Judgment , the same was good by the whole Court , for the reasons before given . As to the giving of Costs , Iones and Bramston Chief Justice conceived , that they were well assessed , upon the presidents before cited : But Barckley doubted thereof , and did conceive that no costs should be given in this case , and that upon Pilfords case 10 Rep. As to the Presidents , he said , that they did not bind him ; for perhaps , they passed sub silentio . And afterwards it was adjorned . Johnson against Dyer . 96. IN an Action upon the Case for words , the Defendant having speech with the Father of the Plaintiff said to him , I will take my Oath that your Son stole my Hens . For which words the Plaintiff brought the Action . But did not aver that he was his Son , or that he had but one Son. And it was holden by the whole Court ( Crooke being absent ) that the plea was not good . Leake and Dawes Case . 97. LEake brought a Scire facias , in the Chancery , against Dawes , to avoid a Statute ; and the Case , as it was moved by Serjeant Wilde , was such : Hopton acknowledged a Statute to Dawes , and afterwards conveyed part of the Land liable to the Statute to I. S. who conveyed the same to Leake , the plaintiff ; and afterwards the Conusor conveyed other part of the Land to Dawes , the Defendant , who was the Conusee , by bargain and sale : the Conusee extended the Lands of Leake , the Purchaser ; who thereupon brought this Scire facias , to avoid the Statute , because that the Conusee had purchased parcel of the Land liable to the Statute , and so ex●inguished his Statute . And this case came by Mittimus into the Kings Bench. And here it was moved by Serjeant Wilde , for Dawes the Defendant , in arrest of Judgment . And taken by him for Exce●●ion , That the bargain and sale is alledged to be made to Dawes , but it is not shewed , that it was by Deed inrolled ; but yet it is pleaded , That Virtute cujus , viz. of Bargain and Sale , the Conusee was seised , and doth not shew ▪ that he entred . And here it was said by the Court , There are two points . First , Whether an Inrolment shall be intended , without pleading of it ? Secondly , Admitting not what Estate the Bargaine● hath , as this Case is ? As to the first Justice Iones took this difference . Where a man pleads a bargain and sale to a stranger , and where to himself . In the first case , he need not plead an Inrolment ; but contrary in 〈…〉 . Barckley agreed it , and took another difference , betwixt a Plea in Bar , and a Count : In a Count , if a man p●●ad a grant of a Reversion without attor●ment , it is good ; contrary in Bar : so in this Case . The second question is ( admitting that the Deed shall be intended not to be inrolled without pleading ) What estate Dawes the Conusee hath before Entry , the Deed not being inrolled . For it was agreed by the whole Court , That if he be a disseior , or if he hath but an estate at will , that the Statute is suspended . And first , whether he hath an estate at will , at the common Law , or not , without Entry . Barckley : that he had . But Iones and Bramston , contrary ; and it seemed that he had an estate at will , by the Statute . And put the case of feoffment in Bucklers case . 3. Rep. Where the Feoffee entreth before Livery , that he hath an estate at will : and Barckley agreed therein with him , for the possibility of inrolment . But Iones conceived that an estate at will , could not be executed by the Statute . And it was adjorned . Curtisse against Aleway . 98. THe Case was thus : A woman was dowable of certain Land , within the Jurisdiction of the Council of the Marches , of which I. S. died seised . She accepted a Rent by parol of the Heir , out of the same Land , in satisfaction of her Dower . And afterwards there was a Composition betwixt them for defalcation of that Rent . Afterwards there was an Action brought before the Council of the Marches for the Arrerages of the Rent : where the question was , Whether the Rent were in satisfaction of her Dowe● , or not : and it was moved by Moreton for a Prohibition . And it was granted by the Court ; because the same did concern Freehold , of which they have not Jurisdiction , for by the express Proviso of the Statute of 34 H. 8. of holding of plea of Lands , Tenements , Hereditaments , or Rents . But because that it appeared by the Bill , that the woman was dead , so as the realty was turned into the personalty , viz. into Debt . And therefore it was conceived by Evers Attorney of the Marches , That although it was not within the Jurisdiction before , yet being now turned into a personal Action , that they have Jurisdiction . But Iones and Barckley Justices , were of a contrary Opinion ; and Iones said , That an Action of Debt for Arrerages would not lie before them , because it touched the realty ; which was denied by none but Evers Attorny . Edwards against Omellhallum . 99. IN a Writ of Error , to reverse a Judgment given in Ireland , in an Ejectione firme ; the Case was this , as it was found by special verdict : A Mortgager made a Lease for years , by Deed indented , and afterwards performed the Condition , and made a Feoffment in Fee ; the Lessee entred upon the Feoffee , who re-entred ; and the Lessee brought an Ejectione firme . And the only question , as it was moved by Glynn , was ; Whether this Lease , which did inure by way of Estople , should binde the Feoffee , or no : and by him it did , and Rawlyns case in the 4 Rep. 53. expresly , and 1 & 2 Phil. & Mar. Dyer agreeth . And the whole Court ( Crooke only absent ) without any argument , were clear , That it should binde the Feoffee : for all who claim under the Estople , shall be bound thereby , vid. Edriches case 13 H. 7. 100 Serjeant Iermayn came into the Court , and shewed cause why a Prohibition should not be granted in the case of Skinner before ; who Libelled for Tythes of Coppice rooted up . He agreed that for timber-trees , above the growth of twenty , no Tithes should be paid ; and so he said was the common Law , before the Statute of 45 E. 3. which was but a confirmation of the Common Law. And he said , That as the body of the tree is priviledged , so are the branches and root also ; which is a proof , that where the body is not priviledged , there neither shall be the root ●or branches . And in our Case he Libels for roots of underwoods , and the underwood it self being titheable , therefore the roots shall be also tithable . And he said , that the 〈…〉 are not parcel of the Land. But Justice Barckley was against it ; for they are not crescentia , nor renovantia , as Tithes ought to be ; and therefore no Tithes ought to be paid for them : and he said , that a Prohibition hath many times been granted in the like cases . But Dr. Skinner did alledge a custome for the payment of Tithes of them . And upon that they were to go to trial : And here it was said , that Dr. Skinner had used to have some special particular benefit of the Parishioners , in lieu of Tithe of Roots . And thereupon Barckley said , That it is a Rule , where the Parishioner doth any thing which he is not compellable by the Law to do , which cometh to the benefit of the Parson ; there if he demand Tithes of the thing , in lieu whereof this is done , that a Prohibition shall be granted . And there is another rule : That Custom may make that titheable , which of it self is not titheable . And here he said to Dr. Skinner being then in Court , That he had two matters to help him , and if any of them be found for him , that a Prohibition ought not to be awarded . 101. Justice Barckley said , That if a man be living at the day of Nisi prius , and dieth before the day in Banck , the Writ shall not abate . So if a man be living the first day of the ●●rliament , and dieth before the last day , yet he may be Attainted : and the reason is , because in the eye and judgment of Law , they are but one day by relation , which the Law makes . 102. There were three Brothers , the Eldest took Administration of the goods of the Father , and after Debts and Legacies paid , the younger Brothers sued the eldest in the Ecclesiastical Court , to compel him to distribute the Estate . And thereupon a Prohibition was prayed , and denied by the Court : for they having Jurisdiction of the Principal , may have Jurisdiction of the Accessary . 103. A. Libelled against B. in the Spiritual Court , for these words : Thou art a Drunkard , and usest to be Drunk thrice a week . And upon that 150 Caroli , in Easter-Term ( as you may see before ) a Prohibition was prayed , and granted . And now Littleton the Kings Sollicitor came in Court , and moved for a Consultation : and he said , that the Statute of Articuli Cleri gave power unto the Ecclesiastical Court to have conusance of those and the like words . Register 49 F. N. B. 51. They may hold plea for defamation ; as for calling Adulterer , or Usurer . 13 H. 7. Kellaway . 27 H. 8. 14. And he cited many Judgments in the like cases , where Prohibitions had not been granted : and amongst others this Case . Mich. 20 Iac. inter Lewis & Whitton Libel in the Ecclesiastical Court , for calling him Pander , and no prohibition granted . And the like Case was for calling another Pimp , and no Prohibition granted . Justice Iones : That a Prohibition should be granted ; for they have conusance of defamation , for any thing which is meerly Spiritual , or which doth concern it , where they have conusance of the principal , else not : as in Heresie , Adultery , and the like : but in this Case they have not Conusance of the principal . True it is , that it is peccatum : But if they should punish every thing which is Sin , they would altogether derogate , and destroy the Temporal Jurisdiction . And therefore if I say , that another is an Idle man , or envious , these are deadly Sins ; and yet they have not Conusance of them . And he cited Coltrops Case , adjudged in the Common pleas , which was our very Case in point : and there he said that upon solemn debate it was adjudged , That a Prohibition should be awarded . Bramston Chief Justice agreed . Barckley contrary , That a Consultation should be awarded : and he said , in many Cases , although they have Jurisdiction of the principal , yet they shall not have Conusance ; as in the Case of 22 E. 4. tit ' Consultation . But he said , that the Offence of Drunkenness is mixt , and is an offence against the Spiritual , and Common Law also ; and if it be mixt , both may hold plea : and Adultery and Murder are the common effects of Drunkenness ; which are offences against both Laws , and therefore he shall be punished by both . But yet Barckley yielded to the Judgment cited by Iones . And therefore the whole Court ( Crooke being absent ) was , That a prohibition should be awarded . 104. Rolls moved this Case : The Parishioners of a certain Parish in Devonshire , did alledge a Custom to chuse the two Churchwardens of the Parish , and they did so ; the Parson chose another : and the Archdeacon swore one of the Church-wardens chosen by the Parish , and refused to swear the other , but would have sworn him who was chosen by the Parson . And because they did refuse him , they were Excommunicate . Rolls prayed a Mandat to the Archdeacon , to compel him to swear the other chosen by the Parish ; and a Prohibition also , by reason of the Excommunication . And he cited a preeedent for it , which was the case of Sutton-Valence in Kent . And the whole Court ( Crooke being absent ) inclined to grant them : for they said , they conceived no difference betwixt London and the Country , as to that purpose : for as in London they are a Corporation , and may take Land for the benefit of the Church : So throughout England , they are a Corporation , and capable to take , and purchase Goods for the benefit of the Church . And therefore they did conceive there was no difference . See the case before , the case of the Parish of Saint Ethelborough , London . 105. Keeling moved to quash an Indictment of Rescous , because it is shewed that the Rescous was at W. and doth not shew that W. was within this County ; and if it was not within the County , then it was an Escape , and no Rescous : And we cannot aver in this case , that it was out of the County . Farther , it was not shewed where the Rescous was , so that upon the matter it is no Arrest ; nor was the Indictment vi & armis , as it ought to be . As to the first , the Court strongly inclined , that they might well intend it to be within the County , because the Indictment says , in Com. meo . apud W. tent . But for the other Exceptions , the Indictment was quashed . 106. In Trespass of Assault and Battery , and Wounding , the Defendant pleaded Not Guilty , as to the Wounding ; and pleaded special matter of justification as to the Assault and Battery ; and found for the Plaintiff ; and it was moved in arrest of Judgment , That the plea was repugnant , for Assault and Battery doth imply Wounding , and therefore it is repugnant for him to justifie it , for it is a confession of wounding . But Justice Crooke and Justice Barckley ( the others being absent ) were clear , that the plea was good ; for so is the common form of pleading : and farther , he might be guilty of the Battery , and not of the wounding : for Crooke said , Wounding implied Assault and Battery ; but not è contra . Brookes against Baynton . 107. IN a Writ of Error to reverse a Judgment given i● the Court of Common pleas , in Trespass for assault battery and wounding ; it was assigned for Error , by Maynard , That there was variance betwixt the Original and the Declaration ; for the Original was only of Battery and Wounding of himself ; and he declared of Battery and wounding of him and his horse also ; for he said , that quendam equum , upon which the Plaintiff equitavit , percussit , its quod cecidit , &c. and that was not helped by the Statute . But Rolls contrary , and here is no variance : for the alledging of striking of the horse was only inducement to alledge the Battery of himself ; for he doth not bring the Action for the beating of his horse , for it was not alledged that it was his own horse , but quendam equum ; and for that reason , by the whole Court the Judgment was affirmed . More of the Case of Leake against Dawe● . 108. SErjeant Mallet for the Plaintiff , That the Scire fa●●●s is good , notwithstanding the exceptions , for these reasons . First , because it is not a Declaration , but a Writ ; which is not drawn by Counsel ; and it is to declare the matter briefly ; but if it were in a Declaration , yet I hold it good , because he saith , that it was modo & adhuc seisitus existit , which as I conceive , helps it : and besides , it is not his title , but the title of his Adversary , which he is not bound to plead so exactly as his own title . See for that , 14 Eliz. Dyer . 204. 2 Car. beswixt Green and Moody , in Audita Querela , he shewed that there was Debt brought upon a Lease for years , to begin at a day to come , and did not shew whether the Lessee entred before the day or not , so as he might be a disseisor : and yet notwithstanding it being in Audita querela , which is an equitable Action , it is good . Hil. 1 Iac. betwixt Blackston and Martin in this Court , a Scire facias was brought to avoid a Statute , and it was shewed that the Defendant was Tenant , but doth not shew how Tenant ; but it said ad grave damnum , which could not be , if he were not lawful Tenant ; and therefore adjudged good , notwithstanding that general allegation . See new Book of Entries , Mollins case , 98 , 99. a strong case to this purpose . Besides , he said , That here issue was taken upon another point , Whether he bargained or not ; and therefore he conceived in this Scire facias , that it is not h●r● needful to shew the Inrolment ; and for these reasons , prayed Judgment for the Plantiff . Serjeant Wild for the Defendant , That the shewing of the Inrolment is not helped by the Issue joyned , being matter of substance ; for he saith , that virtute cujus , and of the Statute of 27 H. 8. of uses , that the Defendant was seised , and we ought not to intend an Estate by any other means or seisin , than himself hath alledged . And th●refore it ought to be adjudged upon his own pleading , whether the Defendant hath any estate without inrolment or entry , by force of the Statute of Uses . And I conceive he hath not . True it is , that all circumstances ought not to be pleaded , but the substance , viz. the Inrolment ; and therefore it ought to be pleaded , as Fulmerston and Stewards case is in the Commentaries , and 2 Eliz. Dyer . And no estate passeth without Inrolment : not a Fee-simple ; for then there ought to be Inrolment according to the Statute : and no estate at will can pass without Entry , for that is as opposit ' in objecto , that a man shall be tenant at will against his will ; for his Entry proves his intent to hold at will. For Littleton saith , By force whereof he is possessed ; so that there ought to be possession to make an Estate at will. And in case of a Lease for years , although it be true that he is a Lessee for years to many purposes before Entry , yet an Entry ought to be pleaded . And Dyer 14. is non habuit ; non occupavit is no good plea in a Lease for years ; contrary in the case in a Lease at will ; which is a strong proof , that he is not Lessee at will before entry . 3 Iac. betwixt Bellingham and Fitzherbert . 5 El. Dyer . 10 Eliz. Mockets case , & Mich. 15 Iac. betwixt Coventry and Stacie , resolved that a release to the Bargainee before Inrolment is not good : And by consequence he hath not an estate at will before Inrolment , or Entry made ; for if he had , the Release should be good . 18 H. 8. the Lord Lovells case , that no estate at Will. Lastly , Parrolls font plea , and the case of a man shall not be taken to be otherwise than he hath pleaded it ; and he having pleaded that virtute cujus , and of the Statute of Uses , that the Defendant was seised , he shall be concluded thereby . 5 H. 7. A man shewed , that another licenced him to enter into his land and occupy for a year , it is not good , but he ought to plead it as a Lease . Besides , the virtute cujus is not traversable , as the 11 Rep. Pridle and Nappers case is ▪ Rolls accord , and he said , That if it shall be construed , That the Conusee shall have an estate by Disseisin , the Plaintiff ought to plead it , that the Defendant was seised by way of disseisin . And where it was objected , That this is a Writ , and not a Declaration , he answered , It is a Writ and Declaration also ; and therefore he ought to declare his case at large , and the defect of the Conveyance , viz. the want of Inrolment is not supplied by the virtute cujus . And he having made that his Title , you ought to judge upon it , and not otherwise . But the whole Court , viz. Bramston Ch. Just. Crooke , Iones , and Barckley , Justices , That the Scire facias was good , for it was said that the Defendant perquisivit sibi & heredibus suis , and concludes , virtute cujus , and of the Statute of Uses , he was seised ; which is a good averment that he hath a Fee , and it was not material how he hath it : and he need not shew his Title so fully , being a stranger to it . And this being an equitable Action , if the Court upon this Writ shall conceive sufficient matter , upon which the Plaintiff may bring his Action , it is good : and the Court ought to give Judgment for him : for being but matter of form , it is not material , unless a Demurrer had been special upon it . And wheresoever there is damnification , there the Court ought to give Judgment for the Plaintiff , notwithstanding a defect of form in the Writ . And Barckley said , That if a man be seised of Bl. acre and Wh. acre , and acknowledgeth a Statute ; and afterwards makes a Lease for years of Wh. acre , the remainder over in Fee , & then the Conusee purchase Bl. acre , and extendeth the land of the Lessee for years ; he held , that he in the remainder should have an Audita querela , or a Scire facias for the damnification , which came to his interest . And he held , that he who had but interesse termini should have an Audita querela , That one jointly only might have an Audita querela , and that the death of one of them should not abate the Writ . And he held that Cestui que use before the Statute , might have an Audita querela : all which proves it to be but an equitable Action , upon which the Law doth not look with so strict an eye , as upon other Actions . And as to the Objection which was made by R●lls , that he ought to shew , That the Conusee had an estate by disseisin : Iones was against that , for that no man is bound to betray his Title . And for these reasons it was adjudg●d by the whole Court , That the Judgment should be affirm●d . 109. A Writ of Error was brought to reverse a Judgment given in the Common pleas , and after a Certiorari , and Error● assigned , they in the Common pleas did amend the Record . And by the whole Court ( Crooke only absent ) they cannot do it , for after a transmittitur , they have not the Record before them . And Barckley said , That the difference stands betwixt the Common Pleas and the Kings Bench , and betwixt the Kings Bench and the Exchequer . For the Record remains always in this Court , notwithstanding a Writ of Error brought in the Exchequer-chamber ; and therefore we may amend after . Wherefore the Court said , that if the thing were amendable , that they would amend it . But the Court of Common Pleas cannot . Sewel against Reignalls . 110. THe case was thus : Husband and Wise did joyn in an Action of Debt in the right of the Wife , as Administratrix to I. S. And the Defendant being arrested at their suit , did promise to the Husband , in consideration that the Husband would suffer him to go at large , that he would give him so much . The husband and wise did joyn in an Action upon the Case , upon the promise made to the husband alone . And upon Non assumpsit pleaded , it was found for the Plaintiff . Porter moved in arrest of Judgment , that the promise being made to the husband only , that they ought not to joyn in the Action . Barckley : the Action is well brought , for the husband is Administrator in the right of the wife : for otherwise the consideration were not good . For if he were not Administrator , then he could not suffer him to go at large : and then if he be Administrator in the right of his wife , the promise which is made to the husband , is in judgment of Law also made to the wise ; and they ought to joyn in the Action . But Crooke Iones , and Bramston Chief Justice contrary , That ●●e Action will not lie , because the promise is of a collateral thing , and not touching the duty due to the wise , as Executrix , for then perhaps it would have been otherwise . And they said ( against the Opinion of Barckley ) that this sum received should not be assets in their hand . And Bramston said , that it is not like the case , where a man promiseth to the father of Iane Gappe , in consideration of a marriage to be had betwixt his daughter and him , that he would make her a Joynture ; there as well the daughter as the father may bring the Action . And it was adjourned . 111. A Parson Libelled in the Ecclesiastical Court for Tithes . And after Sentence Rolls moved for a Prohibition upon the Suggestion of a Modus decimandi ; but it was not granted , because too late . But Rolls took this difference , and said , that so had been the Opinion of the Court , where the party pleads the Modus , and where not ; for if he plead it , there notwithstanding a Sentence , Prohibition hath been granted ; contrary where he doth not plead it . But notwithstanding the Court refused to grant a Prohibition . 112. The Parishioners of a Parish , together with the Parson , sued the Churchwardens in the Ecclesiastical Court , to render Accompt , and recovered against them , and Costs taxed . Afterwards the Parson released the Costs , and notwithstanding the Parishioners sued for the Costs : and thereupon a Prohibition was prayed ; because that the Costs are joyntly assessed , and the release of one would bar the others . But the Opinion of the whole Court , that a Prohibition shall not be granted : For the costs recovered there , an Action might be sued in the Ecclesiastical Court : and therefore although that in our Law , the release of one shall bar the others ; yet the Action being sued there , and they having conusance thereof , the same is directed according to their Law. And therefore it hath been adjudged , that if the husband and wise sue in the Ecclesiastical Court for the defamation of the wife , and Sentence be given for them , and Costs taxed , and afterwards the husband releas●th the costs , in the suit commenced in the Ecclesiastical Court , it shall not bar the Wife , for the reasons given before . Brooke and Booth against Woodward Administrator of John Lower . 113. IN Debt upon a Bond , the Defendant prayed Oyer of the Condition , which was entred , in haec venba . The Condition of this Obligation is such , That if the Obligor did deliver to the Plaintiffs two hundred weight of Hops in consideration of ten pounds already paid , and fifty five pound to be paid at the delivery ; and the Plaintiffs to chuse them out of twenty four Bags of the Obligors own growing , and to be delivered at F. at a day certain . Provided , that if the Plaintiffs should dislike their Bargain , that then they should lose their ten pounds : and if they liked they should give ten pounds more , &c. Upon Oyer of which , the Defendant pleaded , that the Plaintiffs non elegerunt . And upon that the Plaintiffs did Demur in Law : and shewed for special cause of Demurrer , that the Plea was double . Withrington for the Plaintiffs , that the Plea is double , in that the Defendant hath alledged , that he was ready , and that the Plaintiffs non elegerunt ; which are both issuable pleas , and each of them , of it self ( admitting no request of the part of the Defendant requisite ) is sufficient in bar of the Action . Besides , he conceived , as this case is , that the first act ought to be done by the Defendant ; for he ought to shew the bags , and request the Plaintiffs to make election . And he compared it to the case in 44 E. 3. 43. and also to Hawlins case , 5 Rep. 22. Farther , he conceived that the Defendant ought to have alledged , that he had twenty four bags , and twenty four bags of his own growing : for if he have not them , it was impossible for the Plaintiffs to make choice , and by consequence the condition broken . Twisden contrary , That the plea is not double , for the alledging himself to be ready , was but inducement to the subsequent matter , quod non elegerunt . And he relied only upon their election ; and in proof thereof he relied upon the Books , 1 H ▪ 7. 16. and 24 E. 3. 19. Farther , here no notice is requisite , not he ought not to aver that he had them ; for he being bound to deliver them , he is estopt to say that he hath them not . 19 Eliz. Dyer 314. and 3 Eliz. Dyer . As to the shewing of them , we ought not to do it , for the Plaintiffs ought to do the first Act , viz. Request the Defendant to shew th● bags for them to make choice of . And the whole Court strongly enclined against the Plaintiffs , for the reasons before given , and they advised them to waive the Demurrer , and plead de novo ; which they did . Thorps Case . 114. IN an Action upon the Case upon Assumpsit , it was agreed by the whole Court , That where there is a mutual promise , viz. A. promiseth to B. that he will do such a thing ; and B. promiseth to A. that in consideration thereof , that he will do another thing ; If A. bring an Action against B. and alledge a breach in non faciendo , and saith that he is ready to do the thing which he promised , but that the other refused to accept of it : Notwithstanding the breach is well laid , and the Action well lieth ; for it was idle , and more than the Plaintiff was compelled to do , to shew that paratus est to do the thing which he promised : So that if there were a breach upon the part of the Defendant , it is sufficient , and if there was a breach on the Plaintiffs part , the Defendant ought to bring his Action for it . And the difference was taken by Bramston , Where the promise is conditional , and where absolute , as in our case . And agreeing with this difference , it was said at the Bar and Bench , That it was adjudged . 115. Hutton moved to quash certain Presentments , because they were taken in a Hundred-Court , which is not the Kings Court ; and therefore coram non Iudice . It was said by Justice Iones , That a Hundred may have a Leet appendant to it ; and then they were lawfully taken . Barckley and the whole Court answered , because it doth not appear to the Court , whether there was so or not , that the Presentments were void . 116. Concerning damage clear , It was agreed , that it was hard that the Plaintiff should be stopt of his Judgment until he had paid his damages clear . For perhaps , if the Defendant be insolvant , the Plaintiff should pay more for damages clear , than he should ever get . And therefore the Court was resolved to amend it . This damage clear , is twelve pence in the pound of the damages given to the party in this Court , and two shillings in the Common pleas . See the Register , where is a Writ for damage clear . Harris against Garret . 117. IT was agreed by the whole Court , that it is no good plea to say , That such an one was bound in a Recognisance , and not to say per scriptum obligat ' ; and to conclude that it was secundum formam Statuti , doth not help it . But in a Verdict it was agreed to be good . And according to this difference , it was said by the Court , That it was adjudged in Goldsmiths case , and Fulwoods case . 118. It was agreed by the Court , that upon a Certiorari to remove an Indictment out of an Inferiour Court , that the Defendant shall be bounden in a Recognisance to prosecute with effect , viz. to Traverse the Indictment , or to quash it for some defect . And if he doth not appear , an Attachment shall issue out against him . Iustice Crooks Case . 119. IT was agreed by the Court , That although a Bill be preferred in the Starchamber against a Judge for Corruption , or any other , for any great misdemeanour ; yet if the Plaintiff will tell the effect of his Bill in a Tavern , or any other open place , and by that means scandalize the Defendant ; that the same is punishable in another Court , notwithstanding the suit dependant in the Starchamber : And so Iones said , that it was adjudged in a Bill in the Starchamber against Justice Crooke ; which was abated , because it was brought against him as Sir George Crooke only , without addition of his Office and Dignity of Judge . Trinit . 16º Car ' in the Common Pleas. 120. AN Apothecary brought an Action upon the Case , upon a promise for divers Wares and Medicines , of such a value , and shewed them in certain . The Defendant pleaded in Bar , that he had paid to the Plaintiff tot & tantas denarior ' summas , as these Medicines were worth , and doth not shew any sum certain . And the plea was holden to be no good plea ; wherefore Judgment was given for the Plaintiff . 121. A Contract was made betwixt A. and B. Mercers , That A. should sell to B. all his Mercery Wares , and take his Shop of him : In consideration of which , A. promised that he would not set up his Trade in the same Town . And adjudged a good Assumpsit in the Kings Bench , as Littleton Chief Justice said . But if one be bound that he will not use his Trade , it is no good Bond. 122. Rolls moved this Case : A Writ of Error was brought upon a Judgment given in Yarmouth , and the Case was thus : A. and B. were bound to stand to the Arbitrament of I. S. concerning a matter which did arise on the part of the wise of B. before coverture . I. S. awarded , That A. should pay to B. and his wife ten pounds , at a place out of the Jurisdiction , And thereupon , upon an Action brought upon the Bond , a Breach was assigned for not payment of the mony at the place . And here it was objected , That it was Error , because it was there assigned , for Breach , the not payment of the mony at a place out of Jurisdiction : and for that cause the Judgment was not well given . Secondly , because that the Award was , That payment should be made to B. and his wi●● which was out of the Submission . But notwithstanding , Judgment was affirmed by the whole Court. For as to the 〈◊〉 issue could not be taken upon payment or not payment o● of the Jurisdiction ; because it was not Traversable . As 〈◊〉 the second , the Controversie did arise by reason of the wi●e and therefore the Award was within the Submission , bei●● made that the payment should be to both . 123. It was said by the Court , that it was one Kellway Case , adjudged in this Court , That a Promise made to an Atturny of this Court , for Solliciting of a Cause in Chance●● was good ; and that it was a good consideration , upon whi●● the Atturny might ground his Assumpsit : For it was res●●ved , That it was a lawful thing for an Atturny to Sollicite . 124. The Court would not give way for Amendments Inferiour Courts . 125. By Iones and Barckley Justices , If there be an insufficient Bar , and a good Replication , after a Verdict , the●● shall be a Repleading . Contrary , where there is no Verdict . Smithson against Simpson . 126. A. And B. were bound to stand to , and observe su●● Article , Agreement , Order , or Decree , as th● Kings Council of the Court of Request should make . A brought an Action upon the Bond against B. and pleaded that the Kings Councel of the Court of Request made such Order and Decree , and that the Defendant did not observe it . The Defendant pleaded , That the King and his Council did not make the Decree : and adjudged by the Court that the Plea was not good . 127. Sir Matthew Minkes was Indicted of Manslaughter , and found Guilty , And it was moved by Hol●orne , of Counsel with Sir Matthew , that the Iudictment was insufficient , because there was dans , &c. without adtunc & ibid. according to Presidents ; as also because it was plagam sen contusionem , which is incertain : as also that the party killed languebat à pred' 15 die , usque decimam sextam . And he said , That there was no time between those two days , but it ought to have been , That he languished from such an hour till such an hour ; and that , he said , were the ancient Presidents . And he said , That an Indictment that A. killed B. inter horam decimam & undecimam was adjudged to be naught . And he took many exceptions : all which were disallowed by the Court. For which cause Sir Matthew prayed his Clergy , and had it . Pasch. 17º Car. in the Common Pleas. Weeden against Harden . 128. CUstome to pay Tithes in kinde for Sheep , if they continue in the Parish all the year ; but if they be sold before shearing-time , but an half-penny for every one so sold. And custome in the same Parish also , to pay no Tithes of Loppings or Wood for fire , or Hedges , &c. The first is an unreasonable custom ; for by such means the Parson shall be defeated of his Tithes . But the last custom is good , by the whole Court. Sir Edward Powells Case . 119. THe Lady Powell sued Sir Edward Powell her husband , in the High Commission Court for Alimony . Whereupon a Prohibition was prayed in this Court , and granted . Serjeant Clark who argued for the Prohibition : The Spiritual Court cannot meddle with any thing which is not redressable by them : they may compel a man tractare uxore● , or Divorce them ; but not grant Alimony , which doth appertain to the Judges of the Common Law. 7 & 8 H. 3. there is a Writ directed to the Sheriff , to set out reasonable Estover● for the Alimony of the wife . President since the Statute of 1 Eliz. where Prohibitions have been granted in this Case . viz. Sir William Chenyes Case , Mich ' 8 Iac. in Comm ' Ban●● , who committed Adultery , and was separated , and the wi●e sued for Alimony , and a Prohibition granted . P. 8 Iac. A Prohibition granted . And by the Statute of 1 Eliz. they have not power to hold Plea of Alimony . The words of the Statute are , Reform , Redress , &c. And it is not apt to say that Alimony shall be Reformed , or Redressed . And besides Alimony is a Temporal thing , and chargeth a mans Inheritance : and therefore they shall not intermeddle with it Serjeant Rolls contrary , She may sue for Alimony in the Ecclesiastical Court ; but if they proceed to Fine or Imprisonment , then a Prohibition lieth . They have power of Separation , which is the principal ; and therefore of Alimony , which is Incident . And the High Commission have the same power given to them by the Statute of 1 Eliz. as the Spiritual Court hath , and therefore they may meddle with Alimony . And where it was before objected , The great inconvenience to the party , by the citing him out of his Diocess , for by that he should lose the advantage of his Appeal : Rolls said , It was good for any within the Province , and that is the Court of the Province . Banks Chief Justice : Although that there be Presidents , that the High Commission have ho●den Plea of Alimony , and granted the same , yet it was not Law. And although though that Alimony be expressed in their Commission , that doth not make it Law , if it be not within the Statute . As to the citing out of the Diocess , he conceived the Commission should be useless , if they might not do it : and therefore he granted a Prohibition . Crawly , Reeve , and Foster Justices , agreed . But they doubted whether the citing out of the Diocess were good or not , for the great prejudice which might ensue to the party in losing his Appeal . And in answer to the Objection of Rolls , the Chief Justice said , That the Ecclesiastical Court had not Jurisdiction of Alimony ; but if they had , yet all the Jurisdiction of the Spiritual Court is not given to the High Commission , by the Statute of 1 Eliz. And they all agreed , That they might as well charge my Land with a Rent-charge , as grant Alimony out of it ; and a Prohibition was granted . 130. No Sequestration can be granted by a Court of Equity , until the Proces of contempt are run out . And by Reeve and Foster Justices , The granting of Sequestration of things ●●llateral , as of other Lands or Goods , is utterly illegal . 131. Whereas upon Suggestion of a Modus decimandi , a Prohibition was granted : now a Consultation was prayed as to Offerings , and granted ; because the Modus , &c. doth not go to the personalty . 132. Upon a Jury retorned , a stranger who was not one of the Jury , caused himself to be sworn in the name of one who was of the Jury . And he against whom the Verdict passed , moved the Court for a new Trial upon that matter . But the Court would not give way to it ; because it appeareth to them that he is sworn upon Record . But all the Court agreed that he might be Indicted for that Misdemeanour : and by Reeve and Foster Justices , the parties may have an Action upon the Case against him . 133. It was taken for a Rule by the Court , That no Amendment should be after a Verdict , without a consent . 134. Trover and Conversion against husband and wife , and declared that they did convert ad usum corum . The Jury found the wise not guilty . And by the Court , this naughty Plea is made good by the Verdict . Sir Richard Greenfields Case , in the Kings Bench. 135. THou ( innuendo Captain Greenfield ) hast received mony of the King to buy new Saddles , and hast co●sened the King , and bought old Saddles for the Troopers . T●ver : It is not actionable . 8 Car. The Mayor of Tiverto● case : One said of him , That the Mayer had cousened all h●● Brethren , &c. not actionable , 9 Iac. in the Kings Bench , Tha● the Overseers of the Poor had cousened the poor of their Bread ▪ not actionable . 26 Eliz. in the Kings Bench , Kerby and Wallers case , Thou art a false Knave , and hast cousened my tw● Kinsmen , not actionable . K. is a cousening Knave ; not actionable . 18 Eliz. in the Kings Bench. Serjeant Fenner hath cousened me and all my Kindred , is not actionable . Words are actionable either in respect of themselves , or in relation to the person of whom they are spoken : where Liberty is infringed , the Estate impaired , or Credit defamed ; there they a● actionable . Mich. 29 H. 8. Rot. 11. Villain , is not actionable . Morgan and Philips case . That he is a Scot , actionable ▪ because he is an Alien born . Hill. 1. Car. in Com. Ban. Si● Miles Fleetwoods case . Mr. Receiver hath cousened the King ▪ actionable in respect of his Office of Receivership . And se● it was afterwards adjudged upon Error brought in the Kings Bench. If these words had been spoken of the Kings Saddler , they had been actionable , for thereby he might lose his Office : but there is no such prejudice in our case ; and he is of another Imployment , and is but for a time only . But by Heath Justice , and Bramston Chief Justice , the words are actionable , for it is not material what imployment he hath under the King , if he may lose his imployment or trust thereby . And it is not material whether the imployment be for life or years , &c. 136. A Lawyer who was of Counsel may be examined upon Oath as a Witness to the matter of Agreement , not to the validity of an assurance , or to matter of Counsel . And in examining of a Witness Counsel cannot question the whole life of the Witness , as that he is a Whoremaster , &c. But if he hath done such a notorious fact which is a just exception against him , then they may except against him . That was Onbies case of Grays-Inn ; and by all the Judges it was agreed as before . And by Reeve Justice , If a Counsellor say to his Client , that such a Contract is Simony , and he saith , he will make it Simony , or not Simony : And thereupon the Counsellor that a Simoniacal Contract , it is no offence in the Counsellor . Pasch. 17º Car. in the Kings Bench. 137. PRescription to have Common for all his cattle Commonable , is not good , for thereby he may put in as many beasts as he will. But a Prescription to have Common for his cattle commonable levant and couchant , is a good Prescription . And it was said , that that was Sayes case of the County of Lincoln adjudged in this Court. 138. In Tompson and Hollingsworths case , it was agreed , That a Court of Equity cannot meddle with a cause after it hath received a lawful Trial and Judgment at the Common Law , although that the Judgment be surreptitious . 139. The Statute of 31 Eliz. enacts , That if a man be presented , admitted , instituted , and inducted upon a Simoniacal contract , that they shall be utterly void , &c. Whether the Church shall be void without deprivation , or sentence declaratory in the Spiritual Court or not , was the Question in a Quare impedit brought by Sir Iohn Rowse against Ezechiel Wright . Rolls and Bacon Serjeants , That it is absolutely void without sentence declaratory , &c. Where the Statute makes a thing void , it shall be void according to the words of the Statute , unless there shall be inconvenience or prejudice to him for whom the Statute was made . The Statute of 8 H. 6. cap. 10. That an utlagary shall be void if process do not issue to the place where the party is dwelling ; yet it is not void before Errour brought . The Statutes of 1 Eliz. & 31 Eliz. That all Leases by a Bishop not warranted &c. shall be void : They are not void , but voidable only ; which agreeth with the reason of the Rule given before . The Statute of 18 H. 6. 6. That if the King grant Lands by Patent not found in the Office , that the Patent shall be void ; it is void presently , M. 30 H 6. Grants 92. and Stamford 61. although they be matter of Record . The Statute of 31 Eliz. is expresly that it shall be void , frustrate , and of none effect ; therefore by the Rule before given , it shall be absolutely void . M. 10 Iac. Stamford and Dr. Hutchinsons case . Resolved that an Incumbent presented by Simony cannot sue for Tythes against his Parishioners ; a villain purchaseth an Advowson , the Church becomes void , the Lord presents by Simony , and the Clark is admitted , Institute , and Inducted , yet it is void , and doth not gain the Advowson to the Lord. Institut . 120 a. If an Incumbent take a second Benefice , the first is meerly void . 4 Rep. Hollands Case . The difference is , where it is of the value of 8 l. where not . And there is difference betwixt avoidance by Statute , and avoidance by the Ecclesiastical Law. Avoydance is a thing of which the Common Law takes notice , and shall be tried by Jury if it be avoydance in fact ; if an avoydance in Law , by the Judges . If a Parson doth not read the Articles according to the Statute of 13 Eliz. it is ipso facto void , without sentence . 6 Rep. 29. Greens case 30 Eliz. Eatons case . Instit. 120. a. express in the point . And the difference is , that before the Statute of 31 Eliz. it was only voidable by deprivation ; but now by the Statute it is absolutely void . Mich. 9 ▪ Iac. Cobbert and Hitchins case . Mich. 42 Eliz. Baker and Rogers case . 2 Iac. Goodwins case , in Com' Banc. in all which cases it was not resolved , but passed tacitely , and without denial , That a Presentation by Simony was void , without declaratory Sentence . It was objected , that it is clear by the Ecclesiastical Law , it is not void without a Sentence declaratory . It is answered , Of things of which our Law and the Ecclesiastical Law take conusance , we are only to relie upon our Law , and not upon the Ecclesiastical Law : especially when the Ecclesiastical is repugnant or contrary to our Law , as in this Case it is . The Judges of the Common Law shall judge the Church void , or not void . Fitz. Annuity 45. 12 & 13 Iac. in the Kings Bench , Hitchin and Glovers case , in an Ejectione firme . In this case it was resolved , That if I. S. marry two wives , the Judges of the Common Law may take conusance of it : yet marriage is meerly an Ecclesiastical thing . It was objected , That the first branch of the Statute of 31 Eliz. that it shall be void , &c. Secondly , that it shall be void as if he were naturally dead , &c. So that the adding of these words ( as if he were naturally dead ) in the later clause , prove that it was the meaning of this Statute , that it should not be void in the first case , without Sentence declaratory . It is answered , There is a difference in words , not in substance , or the intent , & qui haeret in litera , &c. Iermin and Taylor Serjeants , That it is not void before Sentence , &c. First , Admission , Institution , and Induction , are Judicial acts , and done by the Bishop : and therefore shall not be void before an act done to make them void , which is Sentence declaratory , or deprivation . Secondly , the Statute of 31 Eliz. saith , it shall be void , not that it is , &c. Thirdly , the Ecclesiastical L●w is , That no Presentation , &c. shall be void before Sentence , &c. Fourthly , the Ecclesiastical Law is Judge of it , &c. Plenarty shall be tried by the Bishop , not by Jury . 6 Rep. 49. a. Refusal shall not be tried by Jury , but Death shall . 5 Rep. 57. 9 H. 7. Profession shall be tried by the Spiritual Court , 4 Rep. 71. b ▪ 4. vid. 4. Rep. 29. a. the credit which our Law gives to the Ecclesiastical Law. It is there put , That one was divorced without his knowledge , which was said to be a strange case . Fifthly the Presentee by Simony doth remain Incumbent de facto , although not de jure ; and that by the words of the Statute which makes the Church void , as to the King only , not as to the Incumbent , without declaratory Sentence : and the Church is no more capable to have two Incumbents , than a woman to have two husbands . There is a difference where the Incumbent presented by Simony is alive , the same is not void in facto , without sentence declaratory : but if he be dead , there itis . And this difference stands upon the two clauses in the Statute of 31 Eliz. And the Statute of 17 Car. of Election of Burgesses , taken notice of Avoidance de facto & de jure . Trinit . 16 Car. in Com. Banc. Ogelbics case . One was Presented within the age o● twenty three years , it did not give Lapse without notice : for it was avoidance in Law , not in Fact. vid. Stat. 9. Eliz. for Excommunicating a striker in the Churchyard , &c. This Statute of 31 Eliz. differs from the Statute of 1 Eliz. for not reading of the Articles . Those Statutes say , that it shall be void ipso facto , but not so in our Case . And the Cases cited for Authority in the point , are betwixt party and party , and not in case of a third person , as our case is . 18 Eliz. Dyer A meer Lay-man is presented , it is not ipso facto void , without Sentence . So it is of one within the age of nine years ; for he cannot govern others . Trinit . 4 Iac. in the Common Pleas , Cooke and Stranges case . The King Presents , and before Institution Presents another , it is good : but in the interim , the King ought to repeal his first presentment , and that is a revocation , vid. Dyer 292. a. where it is a Quere , Whether he need not to alledge that a Repeal was brought and shewed , &c. The King grants , and afterwards makes a second Grant of the same thing . There are many Examples in Brooke and Fitzherbert , that it is not good without a Repeal . But this Case , viz. of 6 H. 8 , 9. extends only to ●and , and not to an Advowson , &c. But it was resolved by all the Judges , That the Church was void by the Statute of 31 Eliz. to all purposes , and to all persons , as to the P●r●shioners , as to a stranger , who brings Trespass , or Ejectione firme as to the King , as to him who Presents ; and that without deprivation , or Sentence declaratory in the Ecclesiastical Court : And accordingly Judgment was given . Hichcocke against Hichcocke . 140. THe Case was this : The Vicar did contract with a Parishioner to pay so much for encrease of Tithes , and died ; and his Successor fued in the Ecclesiastical court for them . And a Prohibition was prayed , and granted by all the Justices . And here it was said , That a real Contract made by the Parson , and confirmed by the Ordinary , could not be altered in the Spiritual Court. And by Serjeant Mallet ; a real accord though it be between Spiritual Persons , and of Spiritual things yet it is only questionable at the Common Law. 20 E. 3. Annuity 32. 38 E. 3. 6. 8 & 19. And by Serjeant Clarke , Real composition by a Parson , who claims not any encrease of the endowment to the Parsonage , shall not binde his Successor . The words of the Contract here were , inter se convenerunt : and that is no real Composition , although that the Bishop call it so , realis Compositio , and his calling of it so doth not alter the nature of it , but it remains a Personal agreement ; and so shall not bind the Successor , although it be confirmed by the Bishop . A Parson cannot do any thing to the damage of his Successor . The Vicar took Oath , That they were not for encrease of Tithes : the Ordinary being a stranger to the Composition , is not made a party by his Confirmation , nor is the Composition altered by it . Littleton Sect. 335. The Lord confirms the Land to the Tenant , the same doth not alter the Tenure , nor prejudice the Lord. The power of the Bishop , augendi & minuendi the Portion of the Vicar , is by the Common Law , for general Cure of Souls . The Parson and Vicar have privity betwixt them . 40 E. 3. 28. 31 H. 6. 14 , 16 Ass Annuity 32. 2 Rep. 44. Plow . Com. 496. 21. E. 3. 5. 10 H. 7. 18. Dyer 43 & 84. 141. A Prohibition was prayed to the Court of Requests , and the Case was thus : A Feme sole possessed of a Term , conveyed the same over in Trust for her , and Covenanted with I. S. whom she did intend to marry , that he should not meddle with it , and for that purpose took a Bond of him . They intermarried : he may intermeddle with it , but he shall not have it ; and by Equity he cannot assigne it , by reason of the Covenant before marriage . A Feme sole conveys a Term in Trust , and then marrieth ; the husband assignes it , the Trust , not the Estate shall pass , by Reeve and Foster . But by all the Judges a Prohibition shall not be , for it is matter only for Equity : But if they direct Demisit , or non demisit , Assignavit , or non , &c. then they exceed their Jurisdiction , and a Prohibition heth . 142. A woman brought a Writ of Dower , and recovered , and upon a suggestion made upon the Roll that the husband died seised , a Writ of enquiry of Damages issued forth . And before the Retorn thereof , a Writ of Error was brought ; and it was by Steward against Steward ; and two things were moved : 1. Whether Error would lie before the Retorn of the Writ of Enquiry , or not . 2. Whether the Writ of Error be a Supersedeas to the Writ of Enquiry . And by Taylor and Rolls Serjeants , That Error doth not lie before Judgment upon the Writ of Enquiry . And this case they compared to Medcalfes case 11 Rep. 38. But by Serjeant Bacon it is well brought . Dower is by the Common Law , and damages are given by the Statute of Merton , and that is the main Judgment . 5. Rep. 58 , 59. And the very case is put in Medcalfes case , 11 Rep ▪ and distinguished from other cases . And it was argued by another Serjeant , That the Error was well brought , because that in Dower the Judgment doth determine the Original : and therefore at the Common Law Error will well lie . And the damages are given by the Statute of Merton , but that doth not alter the Judgment , or the nature of the Action . It differs from the case of Judgment in an Ejectione firme , and Accompt ; for after such Judgments No●suit may be : but not so in the case of Dower , in which Judgment is , quod recuperet , &c. A Precipe is brought against two , one pleads to issue , the other an insufficient Plea , upon which Judgment is given . No Error lieth before Judgment be given for the other : for the whole matter is not determined . But in several Precipes against two , it is otherwise . 34. H. 6. 18. Fitz. Scire facias . 11 Rep. 39. a. b. In case of Ejectione firme it is a Quere if Error may be brought , &c. And Bankes Chief Justice said That it had been adjudged both ways : but that differs from our case , for in that damages are given by the Common Law. Judgment is , in a Quare impedit Error may be brought before , &c. which is like to our case , for damages in both cases are given by Statute . And where it was objected , That thereby damages should be lost ; He answered , No. For the Kings Bench may award a Writ of Enquiry of Damages . And the 11 Rep. is express Authority . 2. The Error is no Supersedeas , &c. 11 Iac. in Tincke and Brownes case , it was ruled and resolved , That a Writ of Error brought , was not a Supersedeas to the Writ of Enquiry of damages . But it was resolved by all the Judges , that the Error was well brought , for the reasons before given : and that Error is a Supersedeas to the Writ of Enquiry . And it was entred for a Rule , That in all Writs of Enquiry of damages , notice ought to be given aswel in Real as Personal Actions . 143. If a Prisoner will remove himself by a Habeas Corpus , he shall pay the Costs of the Removal : but it the Plaintiff will remove the Prisoner , he shall pay reasonable charges . 144. Dickenson Libelled against Barnaby in the Spiritual Court for these words : D. is a Beastly Quean , Drunken Quean , Copper-nose Quean , and she was one cause wherefore Barnaby left his wife , and hath mispended five hundred pounds , and that she keeps company with Whores . And a Prohibition was prayed and granted , because that the words are not actionable . 145. Hill. 16. Car. in this Court. A. a poor man sold his estate for twenty pound yearly , to be paid during his life : for the security of which , the Vendee was bound to A. and another in a thousand pounds ; the other releaseth the Bond , the mony not being paid . A. is compelled to have Relief of the Parish for his maintenance . The Churchwardens and A. exhibited a Bill in the Court of Requests , and there had remedy . 146. A. and B. his wife Present to a Church , to which they have no Right . Question , Whether that doth grant any thing to the wife or no ? Resolved , No. For the wife is at the will of her husband , and Presentation is but Commendation , or the Act of the husband , &c. And it is not like unto an Entry in Land by them . Mich. 16 Car. betwixt Nesson and Hampton . Otherwise it is when the wife hath Right . Sir John Pits Case . 147. IN the case of Sir Iohn Pits Philizor of London , it was moved , that his Executors might have the profits of the Writs which are to be subscribed with his name , forasmuch as all Process of the same suit ought to have the same name subscribed to them : for the attendance of them being necessary , they ought to have the profits according to it . Tooleys case , Hobarts Reports . The reason which was given to the contrary was , because there was another Officer , who is to answer any damages , by reason whereof he is to have the benefit . 148. Judges are the only Expositors of Acts of Parliaments , although they concern Spiritual things , Searles case , Hobarts Rep. 437. 4. E. 4. 37 , 38. 149. If horses be traced together , they are but one distress . And note , Fetters upon a horse leg , may be distreined with the horse . Hillary 16º Car. in the Kings Bench. 150. A Merchant goeth beyond Sea , and marrieth an Alien . It was resolved , that the Issue is a Denizen ; for the husband being the Kings subject , the wife is not respected , because she is at the will of her husband , and also because they are but one person in Law. Bacon and Bacons case . 151. If a Town hath a Chappel , and bury at the Mother-church , and therefore have time out of mind repaired part of the Wall of the Church , it is good to excuse them of repairing the Church . Inhabitants of such a place prescribe to repair a Chappel of Ease : and in regard thereof , that they have time out of mind been free from all Reparations of the Mother-church , it is good . But if such a Chappel hath been built within time of memory , then they ought to have proof of some agreement , by virtue of which they are discharged of Reparations of the Mother-church . Pasch. 17 Car. in the Kings Bench. The Inhabitants within the Parish of H. having a Chappel of Ease , and custom that those within such a Precinct ought to find a Rope for the third Bell , and to repair part of the Mother-church : in consideration of which , they have been freed from payment of any Tithes to the Mother-church . Whether it be a good Custome , or not , Quaere , for it was Adjorn . Hillary 16º Car in the Common Pleas. 152. WHere the Ecclesiastical Court hath conusance of the cause , there proceedings , although they be Erroneous , are not examinable in this Court. And it was given for a Rule , That it is no cause to grant a Prohibition . 153. The Sheriff in the Retorn of a Rescous , said , that he was in Custodia Ballivi Itinerantis . And that a Rescous was made to his Baily Itinerant ; and it was not good : otherwise , if he had been Baliff of a Liberty , for the Law taketh notice of him . And therefore the Court did award that the Rescousers should be dismissed , and that the Sheriff should bring in the man by a certain day at his peril . Otherwise it is in the Kings Bench. 154. One cannot be Attorney within age , because he cannot be sworn . 155. Commissioners have a Warrant , and they execute it with another who is a stranger to the Warrant ; It is good , and the other person is but surplusage . 156. A Prohibition after Sentence shall not be granted but in some especial case . 157. It was Ordered by the Lords House of Parliament , That only Menial servants , or one who attended upon the person of a Knight or Burgess of the Parliament , should be free from Arrest . 158. Administration is granted to the wife , the husband having many children . Whether it be in the power of the Ordinary to make distribution , or not . First , if there be an Executor , then not . Secondly , After distribution there may be a Debt which was not known at the time , and then the Administrator should pay it of his own goods . And therefore there can be no distribution . On the other side , it was said , If the Ordinary shall not distribute , then if a man dieth Intestate , and hath goods of the value of an hundred pounds , and Administration be committed to the wise , she should have all , and the children nothing ; which would be hard . 159. A thing which may be tried by a Jury at the Common Law , is not triable in Chancery : for in the first Case , if they give not their Verdict according to their Evidence , an Attaint lieth : but in the other there is no remedy . 160. After a Writ of Error granted , a Warrant of Atturney cannot be filed , if the party be alive who made , the Warrant : but otherwise if he be dead . 161. A Declaration cannot be amended in matter of Substance , without a new Original : otherwise of Amendments of matter of Form. 162. The Statute of 5 & 6 E. 6. cap. 1. and 1 Eliz. c. p. 2. prohibite any man to be absent from Church , having no ●awful or reasonable cause . A man was sued in the Ecclesi●stical Court for being absent from Church ; and he pleaded ●mething by way of excuse . Hyde Serjeant prayed a Prohibition , because they ought not to hold Plea of the excuse : but the Court did agree that they might hold Plea of the excuse , otherwise upon a false suggestion you would defeat the Ecclesiastical Court of all Conusans in such cases . And therefore they were all against the Prohibition , and by the Court they ought to plead their excuse there ; and if they will not admit of it , then a Prohibition shall be granted . And note , that it was said by Bankes Chief Justice , that before the Statute of 1 Eliz. the Ecclesiastical Court might punish any person for not coming to Church , pro reformatione morum & salute animae . 163. Where there are several Modus alledged , there several Prohibitions shall be granted ; but where divers are sued joyntly , and they alledge one Modus only , there they shall have but one Prohibition , by Reeve and Foster Justices , the others being absent . Pasch. 15º Car in the Kings Bench. Edwards and Rogers Case . 164. THe Case was thus : Tenant for life , the Reversion to an Ideot ; an Unkle heir apparent of the Ideot levied a Fine and died , Tenant for life died , the Ideot died : the only Question was , Whether the Issue of the Unkle who levied the Fine should be barred or not : Iones : that it should ; his chief reason was , because the Son must make his conveyance by the Father , and as to him he is barred . As in a Writ of Right , he ought of necessity to name his Father , and that by way of Title , so here . But Crooke and Barckley contrary ; and their reason was , because that here the Issue of the Unkle doth not claim in the right line , but in the collateral . Secondly , because the naming of the father here is not by way of Title , but by way of pedigree only . Note , that Serjeant Rolls in the Argument of the Serjeants case ( which was the very point ) said , that this case was adjudged , according to the Opinions of Crooke and Barckley , viz. that the fine should not bar the Issue . The Serjeants Case aforesaid was Trin. 17 Car. 165. Payne the elder and Payne the younger were bound joyntly and severally in an Obligation to Dennis , who afterwards brought Debt upon the Bond against both . And after appearance , Dennis entred into a Retraxit against Payne the younger ; and whether this were a discharge of the elder also , was the Question . And this Term it was argued by Maynard for the Defendant , that it was a discharge of Payne the elder also , for it doth amount to a Release ; and it is clear , that a release to one , shall discharge both . Rolls contrary , that it goeth only by way of Estoppel , and not as a release , and therefore shall not bar . Barckley Justice : that it amounts to a Release , and therefore shall discharge both . 7 E. 4. Hickmots case in the 7 Rep. the Plaintiff shall not have judgment where he hath no cause of Action . And here by his Retraxit he hath confessed , that he hath no cause of Action , and therefore he shall not have judgment . Further , a Retraxit is not an Estoppel , but a Bar of the Action ; besides , here he hath altered the Deed , and it is not joynt , as it was before , like as where he interlines it or the like , there the Deed is altered by his own act , and therefore the other shall take advantage of it . Crook Justice contrary ; for it is not a Release , but quasi a Release ; and if the Oblig●e sueth one , and covenanteth with him that he will not further sue him , the same is in the nature of a Release , and yet the other shall not take advantage of it . So in this case , 21 H. 6. there ought to be an actual Release , of which the other shall take advantage , and therefore in this Case , because it is but in the nature of an Estoppel , the other shall not take advantage of it . Sprigge against Rawlenson . 166. IN a Writ of Error to reverse a Judgment given in the Common Pleas in an Ejectione firme , the Case was : R. brought an Ejectione firme against S. and declared of an Ejectment de uno mesuagio & uno repositorio . And the Jury found for the Plaintiff , and assess●d damages entire : upon which a Writ of Error was brought here , and the Error which was largely debated was , that Rep. sit●rium , which was here put for a Ware-house , is a word uncertain , and of divers significations , as appeareth by the Dictionary . And therefore an Ejectione firme de uno repositorio is not good , and by consequence the damages which are joyntly assessed are ill assessed . And in an Ejectione firme seism shall be given by the Sheriff , upon a Recovery , as in a Precipe quod reddat , and therefore the Ejectment ought to be of a thing certain , of which the Sheriff may know how to deliver seifin , otherwise it is not good . Barckley and Crook Justices were , that the Judgment should be affirmed , and that it was certain enough ; but Iones and Bramston Chief Justice contrary , that it was utterly uncertain . For that is Repositorium in which a man reposeth any thing : and an Ejectione firme de uno tenemento is not good , because there are several ●enements . So here , because there are several Repositories , and the Sheriff cannot tradere possessionem : and afterwards Barckley released his Opinion , and judgment was given , that the Judgment given in the Common Pleas should be reversed . Trinit . 17º Car ' in the Common Pleas. 167. A Man having a Legacie devised unto him out of a Lease for years , which Indenture o● Lease was in the hands of a Stranger , The Legatee su●d the Executors in the Spiritual Court to assent to the Legacie . And Evars Serjeant prayed a Prohibition , because they order that the Lease should be brought into Court , which they ought not to have done , being in the hands of a stranger . But the Prohibition was denied by the whole Court , for they may make an executor assent to a Legacie out of a Lease , and therefore may order that although that the Lease be in the hand of a third person , that it shall be brought in to execute it . For the Order , although it be general , binds only the Defendant ; and it was agreed by the Court , that assets or not assets is triable by them . Juxon against Andrewes , and others . 168. IN an Ejectione firme , the Defendants pleaded not guilty , the Jury found them not guilty for part , and guilty in tanto unius messuagii in occupatione , &c. quantum stat super ripam ; and whether this Verdict were sufficiently certain , so as the Court might give judgment upon it , and execution thereupon might be had , was the question . And by Whitfield Serjeant the Verdict is certain enough : it hath been adjudged that where the Jury find the defendant guilty of one Acre , parcel of a Mannor , that it was good : so of the moiety of a Mannor which is as uncertain as in this case . And it is as certain as if they had said , So many feet in length , and so many in breadth ; for if the certainty appeareth upon the view of the Sheriff , who is to deliver the possession , it sufficeth : and Clark Serjeant who was of the same side said , that it is a Rule in Law , Quod certum est quod certum reddi potest , and this may be reduced to certainty upon the view of the Sheriff , and therefore it is certain enough . Besides , it is the finding of the Jury who are lay gents . M. 8. Iac. in the Kings Bench , an Ejectione firme was brought for the Gate-house of Westminster , and the Jury found the Defendant guilty , for so much as is between such a room and such a room , and adjudged good , and here it is as uncertain as in our case . Mich. 19 Iacobi . Smalls case in Hobarts Rep. The Jury in an Ejectione firme found the Defendant guilty of a third part , and good . Mallet Serjeant , that the Verdict is uncertain , and therefore not good . And it is not sufficient that the certainty appear to the Jury , for it behooveth that certa res deducatur in judicium . Institut . 227. a. 3. E. 3. 23. b. 18 E. 3. 49. 40 E. 3. 5 Rep. Playtors case . Secondly , here is no certainty for the Sheriff to give execution , for so much in length or in breadth , that is , quod stat super ripam , doth not appear . And thirdly , thereupon great inconvenience will arise , that no attaint will lie upon such uncertain Verdict , so as the defendant shall be without remedy : and the whole Court ( except Justice Crawley ) Banks , Reeve , and Foster , did resolve that the Verdict was insufficient for the incertainty ; and all agreed , That there is great difference betwixt Trespass and Ejectione firme , for such Verdict in Trespass may be good , for there damages are only to be recovered , but in an Ejectione firme the thing it self . And their reason in this Case was , That although the certainty may appear to the Jury , yet that is not enough , for they ought to give judgment , & oportet quod certa res deducatur in judicium . And they agreed , that if they had found him guilty of a Room , it had been good , and so the Cases on the Acre of Land , and of the third part of a Mannor is good , for those are sufficiently certain , for of them the Law takes notice . The Opinion of Crawley , wherefore the verdict should be good , was , because the demand here was certain , although the Jury found it in tanto , &c. And where there may be certain description for the Jury it is good enough , and the rather because the Verdict is the finding of lay gents : and he compared it to the case of the Gate-house aforesaid : but he agreed , that if the Writ of Ejectione firme had been brought de tanto unius messuagii , &c. quod stat super ripam , that it would not have been good , but the Verdict is good for the reason aforesaid . But Justice Reeve said , that that which is naught in the demand , is naught in the Verdict , and therefore naught in the judgment , and therefore the Court would not give judgment , and therefore a Venire facias de novo was prayed , and granted by the Court. 169. Couch libelled against Toll ex officio in the Ecclesiastical Court for Incontinencie without a Citation or presentment , and for that the Defendant was excommunicated ; and Gotbold prayed a Prohibition , which was denied by Crawley and Reeve Justices ( the others being absent ) and it was said by Reeve , That where they proceed ox officio a Citation is not needful , but put case it were , yet they said , that no Prohibition is to be granted as this case is , because , that where the Ecclesiastical Court hath Jurisdiction , although they proceed erroneously , yet no Prohibition lieth , but the remedy is by way of Appeal , and there he shall recover good costs : and it was said by Crawley , That if the party be retorned cited , and he is not cited , That an Action upon the case lieth . 170. A woman libelled in the Arches against another for calling of her Iade , and a Prohibition was prayed and granted , because the words were not defamatory , and do not appertain unto them . And Reeve said , that for Whore or Bawd no Prohibition would lie , but they doubted of Quean . 171. Bacon Serjeant prayed a Prohibition to the Court of Requests upon this suggestion , That one Executor sued another to accompt there , and an Executor at the Common Law before the Statute of West . 2. cap. 11. could not have an accompt for cause of privity , and now by that Statute they may have an accompt , but the same ought to be by Writ , and therefore no accompt lieth in the Court of Requests . Secondly , they have given damages where no damages ought to be given in an Accompt . And lastly , they have sequestred other Lands , which is against the Law ; and for these reasons he prayed a Prohibition . Whitfield Serjeant contrary . 1. It is clear that an accompt by Bill lieth for an Attorney in this Court , and so in the Kings Bench and Exchequer : and as to damages it is clear that in an accompt a man shall recov●● damages upon the second judgment , but as to the sequest●●ion he could not say any thing , but further he said , That it was not an accompt but only a Bill of discovery against Trustees , who went about to defeat an Infant , and upon the reading of the Bill in Court it appeared that the suit was meerly for the breach of a trust , and for a confederacie and combination , which is meerly equitable . Wherefore a Prohibition was denied because it was no accompt , but as to the Decree for sequestring other Lands , the Prohibition was granted . Trin. 17º Car ' in the Kings Bench. 172. EAste brought an Action upon the Case upon an Assumpsit against Farmer , because that where the Plaintiff had sold to the Defendant so much wood , the Defendant in consideration thereof did assume and promise to pay so much money to the Plaintiff , and to car●● away the wood before such a day ; the Defendant pleaded th● he paid the money at the day aforesaid , but as to the carrying of it away before the day , he pleaded non assumpsit , and the Jury found that he did not pay the money at the day , but as to the other they found that he did assume and promise as aforesaid , and it was moved in Arrest of judgment , that the finding of the Jury was naught , for being but one Assumpsit and the same being an intire thing , it could not be apportioned , and therefore they ought to find the intire Assumpsit for the Plaintiff , or all against him . And the Court agreed all that , and awarded , that there should be a Repleader ; and the Chief Justice Bramston said , That for the reason given before the Defendants plea was not good , and therefore the Plaintiff might have demurred upon it , which he hath not done ; and therefore they agreed , that the Verdict was naught for the reason aforesaid . 173. Williams was indicted at Bristow , upon the Statute of 1 Iac. cap. 11. for having two wives , and upon not Guilty , pleaded , the Jury found a special Verdict , which was thus : That the said Williamt married one wi●e , and was afterwards divorced from her causa adulterii , and afterwards married the other , and if that were within the Proviso of that Statute which provides for those who are divorced , was the Question . And it was resolved without argument by Bramston Chief Justice , and Heath Justice ( the other being absent ) That it is within the Proviso , for the Statute speaks generally of Divorce , and it is a penal Law : and Heath said , That by the Law of Holy Church the parties divorced causa adulterii might marry , but parsrea not without licence , and he cited the case of Anne Porter of late in the Kings Bench , who was divorced causa saevitiae , and afterwards married one Rootes , and upon an Indictment upon this Statute it was doubted and debated whether it were within the Proviso of this Statute or not ? but resolved it was not , because only a Divorce à cohabitatione , and a temporal separation until the anger past , but the divorce here is à vinculo matrimonii . 174. One was chosen to be Clerk of a Parish-Church , and was put in and continued Clerk three or four years , but was never sworn ; and now a new Parson put him out , and swore another in his place . Keeling and Rolls Serjeant prayed a Writ of Restitution , and compared the same to the Case of disfranchisement , where Restitution lieth . But Bramston and Heath Justices ( the other absent ) would not grant it . And the Chief Justice said , that the Doctor had not power to oust him ; for he said that it is a temporal Office , with which the Parson had not to do : and further , they conceived that the Clerk hath remedy at Law , wherefore they would not award a Writ of Restitution , but they said , that if the Clerk was never sworn they would award a Mandat to swear him , to which the Counsel assented . Trin. 17º Car. in the Common Pleas. 175. WHite exhibited a Bill in the Court of Request against Grubbe for Money due upon account ; upon which Mallet moved for a Prohibition , because it 's no other than in the nature of a debt upon account , of which a Court of Equity hath no Jurisdiction , for by such means the King should lose his Fine , the Defendant should be put to another Answer upon his Oath , and which is above all , they would refer the merits of the Cause to others , and according to their Certificates make a Decree , so that by this means they would create Courts of Equity without number . Serjeant Clark contrary against the Prohibition , for he said the Defendant had exhibited a Cross Bill , and so had affirmed the Jurisdiction , and he ought to have demurred to the Jurisdiction ; and he said that where parties assent to a Decree , there the Kings Bench will not grant a Prohibition . For he said , that by the same reason that a man may chuse Arbitrators , he may elect his Judges ; and further , he said that the suit was for moneys due for divers things delivered by the Plaintiff being a Chandler in a Country-town , which he ought to prove to be delivered , and he had no proof : but Crawley and Reeve Justices , the others being absent , granted a Prohibition , because it is no other but an Action of debt upon account ; and Crawley said , that the particulars are out of doors by the account , & in debt brought , it is sufficient to say , that the Defendant was indebted to him for divers Commodities . And they accounted , and upon the account the defendant was found to be in debt to him such a sum , &c. And note , it was said in the Bill that the Plaintiff had no Witnesses to prove the delivery of the things aforesaid , and notwithstanding they granted a Prohibition . for they said , there is no remedy in the Court of Requests if you have no proof . But is was said that the Defendant in the Court of Requests had confessed the delivery of the things in his answer there . For which cause the Judges said , that this confession there might be given in evidence against him at Law. 176. Three covena●●ed joyntly and severally with two severally , and afterwards one of the Covenanters married with one of the Covenantees : by Serjeant Mallet the Covenant is gone ; besides , a man cannot covenant with two severally , as a man cannot bind himself to two severally . Further , they joyned in in Action where the covenant is several , that which they should not do . Crawley and Reeve Justices did conceive that a man might covenant with two severally , because that it differs from the case of a Bond , for a covenant sounds only in damages , but they conceived clearly that they ought not to joyn in action , and it was adjourned . 177. It was said in a Case at the Bar by Sergeant Godbold that it was a Rule in the Kings Bench , That although an Atturney be dead , yet the Warrant of Atturney might be siled , which was not denied by the Court here . Lawson and Cookes Case . 178. IN a second deliverance , which was entred Hill. 16 Car. Rot. 1530 : the Case was thus : A man had a Rent-charge in Fee , and for Arrerages thereof , did distrain , & then granted the same over . And the Question here was , Whether he ought to avow or justifie ; and the doubt rested upon this , viz. Whether the arrerages be gone by the grant of the rent , notwithstanding the distress before taken , or not . By Serjeant Ca●lis the arrerages are lost , for without question he cannot have debt . And he cannot avow , for that depends upon the inheritance which is gone by the grant , 4 Rep. 5. Ognels case , & 19 H. 6. 42. b. Acc. And here he hath avowed and not justified , as ●e ought for to excuse himself of damages , and therefore it is naught . But he took this difference betwixt the Act of God , and the Act of the party , as here it is ; where it is by the Act of God , as where there is grantee for anothers life of ●●ent , and cestuy qui vie dieth , or where a man hath rent 〈◊〉 the right of his wife and she dieth , in those cases the arresages shall not be lost : But where a man grants over the rent as in our Case which is his own Act , there the arrerages are lost . Institut . 285. A man intitled to waste accepts of a surrender , it destroys his Action , otherwise where it is by act of Law. So if a man bring debt for twenty pounds , and afterwards accepts ten pounds , that shall abate the Writ , because that it is his own Act ; and this difference may be collected out of the book of 19 H. 6. Besides , until avowry it doth not appear upon Record for what the distress is taken , whether for rent , or for damage feasant . Serjeant Godbold contrary , that he ought to avow , because the rent in this case is not gone ; and he said , there was a difference between this Case and Ognells case , for there was no distress taken before the rent granted , as here is ; and there the privity is gone , and the distress follows the rent , but here we have a pledge for the rent which is the distress , and return of the cattle if it be found for us , 19 H. 6. 41. a. Where the distress was lawfully taken at the beginning , there we may avow , and it is good to intitle us to a retorn , 22 E. 4. 36. Where there is a duty at the time of the distress , there he shall always avow and not justifie , and at least it turns the Avowry into a Justification in our Case , so as you shall not make us Trespassers , but that we may well justifie to save our damages . Crawley Justice : that the Avowry is turned into a Justification , and that there is sufficient substance in the Plea to answer the unjust taking the distress . Justice Reeve : that it is good by way of Avowry , for the distress being lawfully taken at the time , it shall not take away his avwry , & therefore he shall have Retorn , for that was as a gage for the rent , and therefore differs from the other Cases . Justice Foster put this Case at the Common Law : Distress was taken , and before avowry Tenant for life died , Whether he shall avow or justifie . But all agreed , that at the least the Avowry is turned into a Justification , but it was adjourned . 179. The Court demanded of the Protonotharies , Whether a man might make a new assignment to a special Bar ; and they said no , but to a common Bar only , viz. that the Trespass ( if any were ) was in Bl. Acre , there ought to be a new assignment by the Plaintiff : but Reeve and Crawley Justices ( the other being absent ) held clearly , that the Plaintiff might make a new assignment to a special Bar ; and further they said , that the Plaintiff if he would might trise the Desendant upon his Plea , but we will not suffer him to do so , because that his Plea is meerly to make the Plaintiff to shew the place certain in his Replication in which the Trespass was done . 180. The Disseisee levieth a Fine ; by Reeve and Crawley , Justices , it shall not give right to the Disseisor , because that this Fine shall enure only by way of Estoppel , and Estoppels bind only privies to them and not a stranger , and therefore the Disseisor here shall not take benefit of it , and therefore they did conceive the 2 Rep. 56. a. to be no Law , Vid. 3 Rep. 90. a & 6 Rep. 70. a. 181. Serjeant Callis prayed a Prohibition to the Court of Requests for cause of priority of Suit , but by Foster and Crawley Justices ( the other being absent ) priority of Suit was nothing , the Bill being exhibited there before Judgment given in this Court. 182. The Case of White and Grubbe before being moved again , it was said in this case by Reeve and Foster Justices , that where a man is indebted unto another for divers wares , and the debt is superannuated according to the Statute of 21 Iac. cap. 16. and afterwards they account together , and the party found to be indebted unto the other party , in so much mony for such wares , in that Case although that the party were without remedy before , yet now he may have debt upon accompt , because that now he is not bound to shew the particulars , but it is sufficient to say , that the Defendant was indebted to the Plaintiff upon accompt , pro diversis mercimoniis , &c. 183. A Prohibition was prayed unto the Council of the Marches of Wales , and the Case was thus : A man being posfessed of certain goods , devised them by his will unto his wife for her life , and after her decease to I. S. and died . I. S. in the life of the wife did commence Suit in the Court of Equity , there to secure his Interest in Remainder , and thereupon this Prohibition was prayed . And the Justices , viz. Banks Chief Justice , Crawley , Foster ( Reeve being absent ) upon consideration of the point before them , did grant a Prohibition , and the reason was because the devise in the remainder of goods was void , and therefore no remedy in equity , for Aequitas sequitu● legem . And the Chief Justice took the difference , as is in 37 H. 6. 30. Br. Devise 13. and Com. Welkden & Elkingtons Case , betwixt the devise of the use and occupation of goods , and the devise of goods themselves . For where the goods themselves are devised , there can be no Remainder over ; otherwise , where the use or occupation only is devised . It is true that heir looms shall descend , but that is by custome and continuance of them , and also it is true that the devise of the use and occupation of Land is a devise of the land it self , but not so in case of goods , for one may have the occupation of the goods , and another the Interest , and so it is where a man pawns goods and the like : For which cause the Court all agreed that a Prohibition should be awarded . Trin. 17º Car. in the Kings Bench. 184. A Man was sued in London according to the custom there , for calling a woman Whore , upon which a Habeas corpus was brought in this Court ; and notwithstanding Oxfords case in the 4 Rep. 18. a. which is against it , a Procedendo was granted : and it was said by Serjeant Pheasant who was for the Procedendo , and so agreed by Bramston Chief Justice and Justice Malle● , That of late times there have been many Procedendo's granted in the like case in this Court. 185. An Orphan of London did exhibite a Bill in the Court of Requests against another for discovery of part of his estate . And Serjeant Pheasant of Counsel with the Defendant came into this Court and Prayed a Prohibition , upon the custom of London , That Orphans ought to sue in the Court of Orphans in London : but the whole Court which were then present , viz. Chief Justice Bramston , Heath and Mallet Justices were against it , because that although the Orphan had the Priviledge to sue there , yet if he conceive it more secure and better for him to sue in the Court of Requests , then he may waive his priviledge of suing in the Court of Orphans , and sue in the Court of Requests ; for quilibet potest renunciare juri pro se intraducto , &c. and Heath said , that he always conceived the Law against the Case of Orphans , 5 Rep. 73. b. But which is stronger in this Case , the Court of Orphans did consent to the Suit in the Court of Requests ; and therefore there is no reason that the Defendant should compel the Infant to sue there , wherefore they would not grant a Prohibition , but gave day until Mich. Term to the Defendants Counsel to speak further to the matter if they could . Trin. 17º Car. in the Common Pleas. Dewel against Mason . 186. IN an Action upon the Case upon an Award , the case was this : The Award was that the Defendant should pay to the Plaintiff eight pound , or three pound and Costs of suit in an Action of Trespass betwixt the Plaintiff and Defendant , as appears by a note under the Plaintiffs Attorneys hand , ad libitum defendentis , &c. And the Plaintiff doth not aver that a note was delivered by the Attorney of the Plaintiff to the Defendant ; and the Defendant pleaded Non assumpsit , and it was found for the Plaintiff , and it was moved in arrest of Judgment for the reason given before : Rolls contrary , that there needs no averment , and he said it was Wilmots case adjudged in this Court , Hill. 15 Car. where the Case was , that the Defendant should pay to the Plaintiff such costs as shall be delivered by note of the Attorneys hand : and it was here adjudged that there needs no averment , because it was to be done by a stranger , but otherwise it had been , if it had been to be done by the Plaintiff himself : and by the Justices , the only question here is , Whether the Attorney shall be taken for a stranger or not ? Justice Foster : that the Defendant ought first to make his election ; which is , to pay either the eight pound which is certain , or the costs which shall be delivered by a note of the Attorney . Besides , here the Attorney is a stranger , because the suit is ended , and to the Defendant he is totally a stranger , and therefore he ought to seek him to have the note delivered to him . But notwithstanding he did conceive that as this Case is , Judgment ought to be stayed , because the Plaintiff hath not well entitled himself to the Action , because he hath not averred that there were costs expended in such a suit : and in the Case ci●ed by Rolls , the Plaintiff did aver the costs incertain . Justice Crawley : it is without question , the Defendant hath Election in this case ▪ but as this Case is , he ought to have notice : and if the Case had been such , that the Plaintiff himself had been to have delivered the note , then without question there ought to be notice , and here the Attorney is no stranger , but is a servant to the Plaintiff , as every Attorney is , And I conceive , that if the Case had been that the Plaintiffs servant had been to deliver such a note , that there notice ought to be given : And for want thereof , in this Case I conceive that the Judgment ought to be stayed . Bankes Chief Justice : I doubt upon the different Opinions of my Brethren , whether Judgment ought to be stayed or not . I agree that the Defendant hath Election in this Case ; and further , I agree that where a thing is to be done by the Plaintiff or D●fendant himself , there notice ought to be given ; but otherwise , in Case of a stranger , and upon this difference stands our Books : as 10 H. 7. and all our Books : but the Question here is , Whether the Attorney be a stranger or not ? and I conceive that it is not in the power of the Plaintiff to compel him to bring the note , and is all one as a stranger , and therefore the Defendant ought to seek the Attorney to deliver this unto him : but the Case was adjourned , because Justice Reeve was not present in Court. 187. A. said to B. Thou hast killed my Brother : for which B. ought an Action upon the Case ; and by Serjeant Whitfield it will not lie , because it is not averred that the Brother of the Defendant was dead at the time , and if he were not dead , then it is no slander , because the Plaintiff is not in danger for it , 4 Rep. 16. a. Snaggs Case , A●● . Serjeant Evers contrary , because the words imply that he is dead , and besides , in the ( Innuendo ) it is also shewed that he was ●ead , for that is the innuendo C. &c. fratrem nuper mortuum : But by the whole Court the words are not actionable without averment that he was dead , and the Innuendo doth not help it , Hobarts Rep. p. 8. Miles and Iacobs Case , acc . 188. A Frenchman had his Ship taken by a Dunkirk upon the Sea , and before that it was brought infra praesidia of the King of Spain , it was driven by a contrary wind to Waymouth ; and there the Dunkirk sold the Ship and Goods to a Lord in Waymouth : whereupon the Frenchman having notice of his ship and goods to be there , libelled in the Admiralty pro interesse suo , against the Lord the Vendee of the Ship , shewing that it was taken by Piracie and not by Letters of Mart , as was pretended , and thereupon a Prohibition was prayed , and by Foster a Prohibition ought to be granted , for whether the Dunkirk took it by Letters of Mart or as a Pirate , it is not material , the sale being upon the Land and infra corpus comitatus ; and so he said it was adjudged in such a case , for whether the sale were good or not , Non constat . Justice Crawley conceived it should be hard that the sale being void , if it were taken as a Pirate , or by Letters of Mart , not being brought infra pr●sidia of the King of Spain , that by this means you should take away the Jurisdiction of the Admiralty , but he said he did conceive it more fit for the Frenchman to have brought a Replevin , which he said lieth of a Ship , or Trover and Conversion , and so have had the matter found specially . Bankes Chief Justice conceived that there should be a Prohibition , otherwise upon such pretence that it was not lawful prize , and by consequence the sale void , you would utterly take away the Jurisdiction of the Common Law. But because there was some misdemeanor in the Vendee , the Court would not award a Prohibition , but awarded that the buyer should have convenient time given him by the Court of Admiralty to find out the seller to maintain his Title , and in the mean time that he give good caution in the Admiralty , that if it be found against him , that then he restore the ship with damages . But note , the Court did agree ( Justice Reeve only absent ) that if a ship be taken by Piracie , or if by Letters of Mart , and be not brought infra praesidia of that King by whose subject it was taken , that it is no lawful prize , and the property not altered , and therefore the sale void ; and that was said by the Pr●cto● of the Frenchman to be the Law of the Admiralty . Rudston and Yates Case . 189. RVdston brought an Action of debt upon an Obligation against Yates for not performance of an Award according to the Condition of the Bond : the Defendant pleaded that the Arbitrators Non fecerunt arbitrium , upon which they were at issue , and found for the Plaintiff ; and it was now moved in arrest of Judgment by Trevor , that the Defendant was an Infant , and therefore that the submission was void , and by consequence the Bond which did depend upon it : and he conceived the submission void , First , because it is a Contract , and an Infant cannot contract : and he took a difference betwixt acts done which are ex provisione legis , and acts done ex provisione of the Infant ; an Infant may bind himself for his diet , schooling and necessary apparel , for that is the provision of the Law for his maintenance ; but a Bond for other matters , or Contracts of other nature which are of his own provision , those he cannot do . Secondly , an Arbitrator is a Judge ; and if an Infant should be permitted to make an Arbitrator , he should make a Judge , who by the Law is not permitted to make an Attorny , which were against reason . Thirdly , it is against the nature of a Contract , which must be reciprocally binding ; here the Infant should not be bound , and the man of full age should be , which should be a great mischief . And where it is objected , it may be for his benefit : To that he answered , that the Law will not leave that to him to judge what shall be for his benefit , what not : and to this purpose amongst other he cited it to be adjudged , That where an Infant took a shop for his trading , rendring ren● , and in debt brought for the rent the Infant pleaded his Infancie , the other replied that it was for his benefit and liv●lihood , and yet it was adjudged for the Infant . vid. 13 H. 4. 12. & 10 H. 6. 14. Books in the point , and therefore he prayed that Judgment might be stayed . Bramston , Heath and Mallet Justices , ( Barckley being then impeached for High Treason by the Parliament ) were clear of Opinion , That the submission by an Infant was void ; and they all agreed , That if the Infant was not bound , that the man of full age should not be bound ; so that it should be either totally good , or totally void . But Ward who was of Counsel with the Plaintiff said , that the case was not that the infant submitted himself to the award , but that a man of full age bound himself , that the Infant should perform the Award , which was said by the Court quite to alter the Case . To that Trevor said , that the case is all one ; for there cannot be an Award if there be not first ▪ submission : and then the submission being void , the Award will be void , and so by consequence the Bond : and to prove it , he cited 10 Rep. 171. b. where it was adjudged that the non-performance of a void Award did not forfeit the Bon● and many other Cases to that purpose . And the Court agreed That if the Condition of a Bond recite , that where an Infa●● hath submitted himself to an Award , that the Defendant doth bind himself that the Infant shall perform it , that the sam● makes the Bond void , because the submission being void , all● void , and therefore day was given to view the Record . 190. A. and B. are indicted for murder : B. flies , and A. brings a Certiorare to remove the Indictment into the King● Bench ; Whether the whole Record be removed , or but part● Keeling the younger said , that all is removed , and that the● cannot be a Transcript in this Case , because he said the Writ saith , Recordum & processus cum omnibus ea tangentibus : but the Chief Justice doubted of it , and he said that the Opinion of Markham in one of our Books is against it ; and he said it should be a mischievous case if it should be so , for so the other might be attainted here by Outlawry who knew not of it ; and note , that Bramston Chief Justice said , That the Clerk of the Assises might bring in the Indictment propriis manibus if he would without a Certiorare . 190. A man was outlawed for Murder , and died : his Administrator brought a Writ of Error to reverse the Outlawry , and it was prayed that he might appear by Atturney , and by Bramston Chief Justice and Justice Mallet ( none other being then in Court ) it was granted that he might , for they said that the reason wherefore the party himself was bound to appear in proper person is , that he may stand rectus in Curia , and that he may answer to the matter in fact ; which reason fails in this case , and therefore the Administrator may Appear by Attorney . 191. One said of Mr. Hawes these words , viz. My Cozen Hawes hath spoken against the Book of Common Prayer ; and said it is not fit to be read in the Church : upon which Hawes brought an Action upon the case , and shewed how that he was cited into the Ecclesiastical Court by the Defendant , and had paid several sums , &c. The Defendant denied the speaking of these words : upon which they were at issue , and it was found for the Plaintiff ; and now it was moved by Keeling for stay of Judgment , That the words are not Actionable ; as to say , A man hath spoken against a penal Law , which doth not inflict punishment of life and member , will not bear Action ; and the punishment which is inflicted by the Statute of 1 Eliz. cap. 2. is pecuniary only and not corporal ; but in default of payment of the sum , that he shall be imprisoned for such a time , which meerly depends upon the non-payment , and is incertain : And by the same reason he said , to say of a man , that he hath not Bowe and Arrows in his house , or not a Gun : or to say of a man , That he hath spoken against any penal Law whatsoever , would bear Action , which should be unreasonable : wherefore he prayed that Judgment might be stayed . Brown contrary ; the words are actionable , because that if it was true that he spoke them , he subjected himself to imprisonment by the Statute of 1 Eliz. although not directly , yet in default of payment ; so as there might be corporal damage : and to prove it , he cited Anne Davies Case 4 Rep. 17. a. where it is said , that to say that a woman hath a Bastard will bear Action , because that if it were true , she was punishable by the Statute of 18 Eliz. Further , he said , that if the words are not Actionable , yet the Action will lie for the special damage , which the Plaintiff hath suffered in the Ecclesiastical Court. Justice Mallet : the words of themselves are not Actionable , because that the corporal punishment given by the Statute doth depend upon the non-payment , and is not absolute of it self ; but the Action will lie for the temporal damage , and therefore he conceived that the Plaintiff ought to have Judgment . Justice Heath : that the Plaintiff ought to have Judgment for the pecuniary Mulct is a good cause of Action , there being in default of payment , a corporal punishment given . But here is not only injuria , but damnum also ; which are the foundations of the Action upon the Case : and if the words of themselves be not Actionable , yet the Action will lie for the damage that the Plaintiff here suffered by the citation in the spiritual Court. Bramston Chief Justice doubted it , and he conceived it hard that the words should bear Action , because as he said the corporal punishment doth meerly depend upon the not payment : and upon the same reason , words upon every penal Law should bear Action ; and therefore this being a leading Case , he took time to consider of it . It was said , To say of a man , that he had received a Romish Priest , was adjudged Actionable , and that was agreed , because it is Felony . At another day the Case was moved again , and Justice Mallet was of the same Opinion as before , viz. That the words themselves were not actionable , but for the special damage that the Action would lie ; and he said , that one said of another , That he was a Recusant ; for which an Action was brought in the Common Pleas , and he conceived the Action would not lie . Justice Heath was of the same Opinion as before , that the words o● themselves would bear Actio● and ●e conceived , That if a man speak such words of another , that if they were true , would make him liable to a pecuniary , or corporal punishment , that they would bear an Action , and here the Plaintiff was endamaged , and therefore without question they will bear an Action . Bramston Chief Justice , as before also ; That the words are not Actionable , neither of themselves , nor for the damage ; not of themselves , for no words which subject a man to a pecuniary Mulct if they were true , either at the Common Law , or by the Statute , will bear an Action : For by the same reason , to say that a man hath erected a Cottage , or to say that a man hath committed a Riot , would bear Action , 37 Eliz. in the Common Pleas. One said of another , That he did assault me , and took away my Purse from me ▪ and upon Not Guilty pleaded , it was found for the Plaintiff , and Judgment was stayed , because he might take his purse from him , and yet be but a Trespasser : So as it appeareth that words ought to have a favourable construction , to avoid multiplicity of Suits : and if these words would bear an Action , by the same reason words spoken against every penal Law should bear Action , which against the reason given before should be a means to increase Suits . And he took it for a rule , If the words import scandal of themselves , by which damage may accrue , then the words will bear action without damage , otherwise not , and therefore the damage here shall not make the words Actionable which of themselves are not actionable , as I conceive they are not . Besides , by this means the Act of a third person should prejudice me , which is against reason , as here the Act of the Ordinary by the Citation and damage thereupon accrued , which perhaps might be ex officio only , for which cause he conceived that Judgment should be stayed , but because there were two Judges against one , Judgment was given for the Plaintiff . Mich. 17º of the King , in the Common Pleas. 192. BAine brought an Action upon the Case against — for these words , viz. That he kept a false Bushel , by which he did cheat and cosen the poor ; & he said in his Declaration , That he was a Farmor of certain lands , and used to sow those lands , and to sell the Corn growing on them , and thereby per majorem partem used to maintain himself and his family ▪ and that those words were spoken to certain persons who used to buy of him , and that by reason of those words , that he had lost their custom ; the parties were at issue upon the words , and found for the Plaintiff , and it was moved by Serjeant Gotbold in arrest of Judgment , that the words were not actionable , because that the Plaintiff doth not alledge that he kept the false Bushel , knowing the same to be a false Bushel , for if he did not know it to be a false Bushel , he was not punishable , and by consequence no Action will lie ; and compared it to the case , Where a man keeps a Dog that useth to worry sheep , but he doth not know of it , no Action lieth against him for it : but yet notwithstanding , Bankes chief Justice and Crawley were of Opinion , that the words were Actionable , for of necessity it ought to be taken that he kept the Bushel knowingly , for otherwise it is no cousenage ; and here being special damage alledged , which was the loss of his custom , as he had pleaded it , the maintenance of his livelihood , they hold the words clearly actionable , & gave Judgment accordingly . Note , the other Judges were in Parliament . 193. Doctor Brownlow brought an Action upon the case for words against 〈◊〉 spoken of him as a Physitian , which words were agreed to be Actionable , but yet Serjeant Gotbold conceived that although that the words were actionable , that the Plaintiff had not well intitled himself to his Action , because although that he said that he is in Medicinis Doctor , yet because he doth not shew that he was licens●d by the Colledge of Physitians in London , or that he was a Gr●d●ate of the Universities according to the Statute of 14. H. 8. cap. 5. that therefore the action will not lie , see Doctor B●unchams case 8 Rep. 113. ● . where he shewed the Statute a●or●said , and pleaded it accordingly , that he was a Graduate of the University of Cambridge , wherefore he prayed that Judgment might be stayed . Bankes Chief Justice and Crawley doubted whether the Act were a general Act or not ; for if it were a particular Act , he ought to have pleaded it ; otherwise that they could not take notice of it ; but upon reading of the Statute in Court , they agreed that it was a general Act , wherefore they gave day to the party to maintain his Plea. 194. By Bankes Chief Justice : upon an Elegit there needs no Liberate , otherwise upon a Statute : and note , the Elegit doth except Averia Corucae . Dye and Olives Case . 195. IN an Action of false Imprisonment , the Defendant shewed , that London hath a Court of Record by prescription , and that the same was confirmed by Act of Parliament , and that he was one of the Serjeants of the Mace of that Court , and that he had a Warrant directed unto him out of that Court to arrest the Plaintiff pro quodam contemptu committed to the Court for not paying twenty shillings to K. B. and that in pursuance of the command of the Court , he accordingly did arrest the Plaintiff . Maynard : that the justification was not good , because the Defendant doth not shew what the contempt was , nor in what Action , so as it might appear to the Court whether they had Jurisdiction or not : And if such general Plea should be tolerated , every Court would usurp Jurisdiction , and every Officer would justifie , where the proceeding is C●ram non Iudice and void , and thereby the O●●icer liable to false Imprisonment , according to the case of the Marshal●ee in the 10 Rep. And here the pleading is incertain , that the Jury cannot try it : and he put the case of the Mayo● of Plymouth . The Mayor hath Juris●iction in D●bt , and Trespass is brought there , which is Coram non Iudice . But in this Action the par●y is imprisoned pro quodam contemptu , shall this be a good Justification in a false imprisonment brought against the Officer ? certainly no. Serjeant Rolls contrary , that the Plea was good , because that the Defendant hath shewed that the Court was holden secundum consuetudinem , and therefore it shall be intended that the contempt● was committed in a Case within their Jurisdiction ; and therefore he cited the 8 Rep. Turners Case , to which Maynard replied , that that doth not make it good , because that issue cannot be taken upon it . At another day , the Judges gave their Opinions ; Justice Mallet : That the Plea is not good , because that it is too general , and non constat whether within their Jurisdiction or not : and where it was objected that he is a Minister of the Court , and ought to obey their commands , and therefore it should go hard that he should be punished for it , he conceived that there is a difference betwixt an Officer of an inferiour Court which ousts the Common Law of Jurisdiction , and one of the four Courts at Westminster ; for where an Officer justifies an Act done by the command of an Inferiour Court , he ought to shew precisely that it was in a Case within their Jurisdiction ; and he cited 20 H. 7. the Abbot of St. Alb●rs case . Justice Heath contrary ; the party is servant to the Court , and if he have done his duty , it should be hard that he should be punished for it : and he agreed that there is a difference betwixt the Act of a Constable and a Justice of Peace , and the Act of a Servant of a Court , for the Servant ought to obey his Master ; and although it be an inferiour Court , yet it is a Court of Record , and confirmed by Act of Parliament and all that is confessed by the Demurrer . Bramston Chief Justice : that the Plea is naught , because that it is too general and incertain ; true it is , that it is hard that the Officer should be punished in this case for his obedience to which he is bound , and it is as true that the Officer for doing of an act by the command of the Court , whether it be just or unjust , is excused , if it appear that the Court hath Jurisdiction : but here it doth not appear that the Court hath Jurisdiction ; and if the Court had not Jurisdiction , then it is clear that the Officer by obeying the Court when they have not Jurisdiction , doth subject himself to an Action of false imprisonment , as it is in the Case of the Marshalsy in the 10 Rep. but it was adjorned , &c. The Bishop of Hereford and Okeleys Case . 196. THe Bishop of Hereford brought a Writ of Error against Okeley , to reverse a Judgment given in the Common Pleas : the point was briefly this . One under the age of twenty three years is presented to a Benefice , Whether the Patron in this case shall have notice , or that lapse otherwise shall not incur to the Bishop , which is grounded upon the Statute of 13 Eliz. cap. 12. And upon debate by the Counsel of the Plaintiff in the Writ of Error , that which was said being upon the general Law of notice , nothing moved the Court against the Judgment given in the Common Pleas upon solemn debate , as it was said , and therefore they gave day to shew better matter , or else that Judgment should be affirmed . The Reasons of the Judgment in the Common Pleas were two . First , upon the Proviso of the Statute , which says , That no Lapse shall incur upon any deprivation ips● facto without notice . Second reason was upon the body of the Act ; which is , That admission , institution , and induction shall be void , but speaks nothing of presentation ; so as the presentation remaining in force , the Patron ought to have notice , and that was said was the principal reason upon which the Judgment was given : and upon the same reasons the Court here , viz. Mallet , Heath , and Bramston ▪ Justices , held clearly that the notice ought to be given , or otherwise that Lapse shall not incur : but they agreed that if the Act had avoided the presentation also , that in such case the Patron ought to have taken notice at his peril , being an avoydance by Statute , if the Proviso help it not . Mich. 17º of the King , in the Common Pleas. 197. A. Said of B. that he kept false weights ; for which words B. brought an Action upon the case , & shewed how that he got his living by buying and selling , but did not shew of what profession he was ; and by all the Court , viz. Foster , Reeve , Crawley , and Bankes in the Common Pleas , the Action will not lie . First , because he doth not shew of what Trade or profession he was ; and it is too general to say that he got his living by buying and selling . Secondly , because although that he had shewed of what Trade he was , as that he was a Mercer , as in truth he was , that yet the words are not actionable , because there is nothing shewed to be done with them , or that he used them : and it can be no scandal , if the words do not import an act done by the false weights , for he may keep them and yet not use them ; and he may keep them that another do not use them ; and the keeping of false weights is presentable in Leet , if the party use them , otherwise not . And where one said of another , That he kept a false Bushel , by which he did cheat and cousen the poor ; the same was adjudged actionable , that is , True ; and differs from this case , for there he said , he not only kept them , but used them , and cheated with them ; but it is otherwise in our case : and this case was compared to Hobarts Reports , where one said of another , That he kept men which did rob upon the High-way : and adjudged that the words were not actionable , for he might keep them and not know of it . Bankes : the action upon the case for words is to recover damages : and here it can be no damage . First , because he doth not shew of what profession he was : and Secondly , because although he had shewed it , yet the words will not bear Action : and Judgment was given against the Plaintiff . 198. It was moved by Serjeant Wild , That depositions taken in the Ecclesiastical Court might be given in evidence in a Trial in this Court ; and the Court was against it , because they were not taken in a Court of Record ; and they said , although the parties were dead , yet they ought not to be allowed ; and by Bankes Chief Justice , no depositions ought to be allowed which are not taken in a Court of Record . and Foster and Reeve were of Opinion , that although the parties would assent to it , yet they ought not to be given in evidence against the constant rule in such case . Crawley contrary , for he said , that a writing which by the Law is not Evidence , might be admitted as Evidence by the consent of the parties . 200. A man was bound to keep a Parish harmless from a Bastard-child , and for not performance thereof , the Obligee brought Debt upon the Bond : the Defendant pleaded that he had saved the Parish harmless , and did not shew how the Plaintiff replied , and shewed how that the Parish was warned before the Justices of Peace at the Sessions of Peace , and was there ordered by Record to pay so much for the keeping of the childe ; and because the Defendant had not saved him harmless , &c. The Defendant pleaded , Nul tiel Record , upon which the Plaintiff did demur . And here two things were resolved : First , that the Plea Nul tiel Record upon an Order at Sessions of Peace is a good Plea , because that an Order at the Sessions of Peace is a Record . Secondly , that notwithstanding Judgment ought to be given for the Plaintiff , because the D●fendants bar was not good , in that he hath pleaded in the affirmative that he hath saved the Parish harmless , and doth not shew how as he ought to have done : but he ought to have pleaded non damnificatus , and that had been good without any further shewing , which he hath not done , and therefore the Plea was not good ; and it was agreed that the same was not helped by the Demurrer , because the same was matter of substance , but the Plaintiff might take advantage of it notwithstanding , and therefore Judgment was given for the Plaintiff . 201. In Debt Judgment was given against the principal , whereupon a Scire facias issued forth against the Bail , and Judgment upon Nihil dicit was given against them : whereupon a Writ of Error was brought , and Error assigned , that there was no warrant of Attorny filed for the Plaintiff ; and upon debate whether the warrant of Attorny ought to be filed or on , the Court seemed to incline their opinion upon these differences , but gave not any Judgment . First , where it may appear to the Court , that there was a warrant of Attorny , and where not . If there was not any warrant of Attorny , there they cannot order the making of one ; but if there was one , they conceived that they might order the filing of it . Second difference , Where the warrant wanting , were of the part of the Defendant , and where of the part of the Plaintiff , in the Writ of Error : if it be of the part of the Plaintiff , such a warrant of Attorney shall not be filed , because he shall not take advantage of his own wrong : the last thing was , where the Record by the lachess of the Plaintiff in the Writ of Error is not certified in due time , there the warrant of Attorny shall be filed : And the Books cited to warrant these differences were , 2 H. 8. 28. 7 H. 4. 16. 2 Eliz. Dyer 180. 5 Eliz Dyer 225. 1 & 2 Phil. & Mar. Dyer 105. 15 Eliz. Dyer 330. 20 Eliz. Dyer 363. and 6. El. Dyer 230. Note , that it was said by Crawley , That it is all one whe●e there is no warrant of Attorney , and where there is ; and he said , there are many Presidents accordingly , and that the same is holpen by the Statute of 8 H. 6. cap. 1 , 2. But Bankes Chief Justice contrary , That it is not helped by the Statute of H. 6. and so it is resolved in the 8 Rep. 162. And he caused the Pro●onotharies so search Presidents , but yet he said they should not sway him against the printed Law , because they might pass sub silentio . And the Chief Justice observed also , that the same is not holpen by the Statute of 18 Eliz. for that helps the want of warrant of Attorny after Verdict only , and not upon Nihil dicit , as this case is , or upon wager of Law , or upon confession , or non sum informatus : And the Court said , That it shall be a mischievous case , that Attornies should be suffered to file their warrants of Attorny when they pleased ; and therefore they gave warning , that none should be filed after the Term , and willed that the Statute of 18 Eliz. cap. 16. should be put in execution . Mich. 17º Car. in the Kings Bench. 202. ACertiorare was directed to the Commissioners of Sewers , who according to the Writ made a Certificate , to which Certificate divers exceptions were taken by Saint-Iohn the Kings Sollicitor . First , that it appeareth not by the Certificate , that the Commission was under the Great Seal of England , as it ought to be by the Statute of 23 H. 8. cap. 5. Secondly , the Certificate doth not express the names of the Jurors , nor shew that there were twelve sworn , who made the pr●sentment , as by the Law it ought to be , but only quod praesentatum fuit per Iurator ' ; so that there might be but two or three . Thirdly , it appears by the Certificate , that it was presented by the Jury , That the Plaintiff ought to repair such a Wall , but it is not shewed for what cause ; either by reason of his Land , prescription or otherwise . Fourthly , they present that there wants reparation , but doth not shew that it lies within the Level and Commission . Fifthly , there was an Assesment without a presentment , contrary to the Statute , for it is presented that such a Wall wanted reparation , and the Commissioners assessed the Plaintiff for reparation of that Wall and another , for which there was no presentment . Sixthly , the Tax was laid upon the person , whereas by the Statute it ought to be laid upon the La●d Seventhly , there was no not●ce given to the Plaintiff , which as he conceived ought to have been , by reason of the great penalty which fol●ows for non-payment of the Assesment : for by the Statute the Land ought to be sold for want of payment . These were the Principal exceptions taken by the Sollicitor . Lane th● Princes Attorney took other exceptions . First , because they assess the Plaintiff upon information ; for they said that they w●re credibly informed , that such a Wall wanted reparation , and that the Plaintiff ought for to repair it ; whereas they ought to have done it upon presentment , and not upon information , or their private knowledge . Secondly , that they assessed the Plaintiff , and for not payment sold the distress , which by the Law they ought not to do , for that enables them only to distrein ; and it was intended by the Statute , that a Replevin might be brought in the Case for it gives Avow●y or Justification of a distress taken by reason of the Commission of Sewers , and there ought to be a Replevin , otherwise no avowty ; and if Sale of the distress should be suffered , then that priviledge given by the Parliament should be taken away , which is not reasonable : Keeling of the same side , and he said , that it was adjudged , Pasch. 14 Car in this Court in Hungers case , That the certificate of the Commissioners was insufficient , because that it was not shewed that the Commission was under the Great S●al of England , as by the Statute it ought to be : and the Judges then in Court , viz. Mallet , Heath and Bramston , strongly inclined to many of the exceptions , but chiefly to that , that there wanted virtute Literarum Paten . But day was given to hear Counsel of the other side . 203. A man acknowledgeth a Statute , and afterwards grants a Rent-charge , the Statute is afterwards satisfied , Whether the grantee of the rent may distrein without suing a Scire facias was the Question , which was twice or thrice debated at the Bar ; but because it was before that Mallet the puisne Judge was Judge , the Court gave order that it should be argued again . Thornedike against Turpington in the Common Pleas. 204. IN Debt upon a Bond , the Defendant demanded Oyer of the Condition , and had it , which was , that the Defendant should pay so much in a house of the Plaintiffs at Lincoln . The Defendant pleaded payment at Lincoln aforesaid , upon which they were at issue , and the Venire facias was De Vicines civitatis Lincoln , and found for the Plaintiff . And now it was moved in arrest of Judgment , that it was a mis-trial ; because the Venire facias ought to have been of the body of the County , and not of the City , which was also a County of it self : but it was resolved by the Judges , viz. Foster , Reeve , and Bankes chief Justice , ( Justice Crawley only against it ) that the trial was good : and this resolution was grounded upon the Book of 34 H. 6. 49 & 50. pl. 17. there being no authority in the Law ( as was agreed ) in point to this case , but the Case aforesaid . And it was taken for a rule , that where it doth not appear upon the Record , that there is a more proper place for trial , than where the trial was , that there the trial is good : but here is not a more proper place . Further , the chief Justice said , that it was not possible to be tried in the body of the County , because that the payment was to be in the City ; and he said , it is true , that if a man speak generally of the County of Lincoln ; it shall be intended of the body of the County , and not the City , because that the City is but derivative out of the County : and further he said , that the Judges are bound to take notice of a County , not of a particular liberty : Yet it was resolved here , because the trial was in the most proper place , and could not be otherwise , that the Venire facias was well awarded , and the trial good . See the Book of 34. H. 6. Bayly against Garford . 205. BAyly brought an Action of Debt upon a Bond against Garford executor of another : the Defendant pleaded Non est factum of the Testator , upon which a special Verdict was given , viz. That the Testator was bound in that Bond with two others joyntly and severally ; and that afterwards the Seals of the two others were eaten with mice and r●ts ; and whether now that were the Bond of the Testator or not was the Question : which the Jury referred to the Court , and it was now argued by Serjeant Whitfield for the Plaintiff , that the Obligation stood good against the Defendant , notwithstanding the eating of the Seals of the two others : and his reason was , Because that where three are bound joyntly and severally , that is all one as if they had been several Obligations : for as when three are bound joyntly and severally there may be one Precipe , one Declaration , and one Ex●cution against them all together ; so when three are bounden joyntly and severally , there may be several Precipes , several Declarations , and several Executions against them , so it is as it were several and distinct Obligations , and therefore the avoiding of part , is not the avoiding of the whole . Further , he put cases where a Deed which is intire may be void in part , and good for the residue , 14 H. 8. 25 & 26. 9. H. 6. 15. and Piggots Case , 11 Rep. 27. Where it is resolved that if some of the Covenants of an Indenture , or conditions of a Bond are against the Law , and some good and lawful , that in that case the covenants and conditions which are against the Law , are void ab initio , and the others shall stand good : and he cited the 5 Rep. 23. Matthewsons Case , as a strong case to this purpose . But the Court said , that that case of the 5 Rep. differed from this case : for there certain persons covenant separatim , and there the breaking of the Seal of one of the parties from the deed shall not avoid the whole deed , for it is as several deeds ; but here they are bound joyntly and severally , which alter●th the case . Besides , he said the Book in 3 H. 7. 5. made not against it , for there it shall be taken that they were bound joyntly and not severally as in this case ; and he cited a Rep●rt in the point , which was Trinit . 2. Iae. in this Court betwixt Banning and Symmonds , where the Case was , That twenty ●●ght Merchants were bound joyntly and severally ( as●●ur case is ) and three of their seals were broken from the de●d , but notwithstanding it was resolved that the deed did 〈◊〉 good against the others ( note , that the Court doubted of that Report , and therefore ordered that the Roll should be searched ) and the Objecti●● here , that it is joynt , is worth nothing , because it is several also ; and he said , that i● two levy a Fine , one within age , and the other of full age , he said it is good in part , and voidable in part ; and if a Fine , which is a matter of Record , may be good in part and voidable in part , àfor●iori he conceived a matter in fait , as a Bond : and 〈…〉 of the Fine he said was Englishes case adjudged : and he would have taken a difference betwixt Rasing , Inter●●●tion and Addition , as is in Piggots Case , that the same shall avoid the whole deed . But that the breaking of the Seal of one should not avoid it but for part . But the Court said , That it was clearly all one , wherefore he prayed Judgment for the 〈◊〉 Serjeant Pheasant contrary , That the whole deed is avoid●d , and non est factum of the Defendant , it is not the same B●●d in nature and effect as it was before , and as 5 Rep. 119 W●elpdales Case , is if the deed were altered by inter●●●ation , ●odition , rasure and breaking of the Seal , there the D●●●nd●nt may plead non est factum , because it is not the same deed : so in this case it is not the same deed , for whereas it was joynt at the first , now if the deed should stand good against the Defendant only , it should be his Bond only , where it was his Bond , and the Bond of another at the first , and so not the same Bond ; and 3 H. 7. 5. ought to be taken of a Bond joynt and several , because that most Bonds are so , and then it is clear our very Case , and there it is resolved , That if two be bounden in a Bond , and the Seal of one is dissolved and taken from the Bond , that it avoids the whole deed , and it is not an Obligation joynt and several , but joynt or several at the Election of the Obligee , for he cannot use both ; and when he hath by his own Act deprived himself of this Election ( as in our Case ) which goes in prejudice of the Obligor , who is the Defendant , the whole Bond is thereby gone , for by that means the Defendant only shall be charged , where both were ; and therefore he conceived that if I grant unto a man an Annuity , or a robe , if the grantee release one of them , both are gone , because he hath deprived himself of Election : so in this case : he by his default should prejudice the defendant here , which ought not to be , & he compared this case to Laughters case , C. 5. Rep. 21. Besides , if the whole deed should not thereby be avoided , it should be a great prejudice to the Defendant , in as much as if all happen to be in execution for the debt due upon that Bond , as by the Law they may , and the one escape , the same should give advantage to the others to have Audita querela , and by that to discharge themselves , which the Defendant here should lose , if the Obligation should stand in force as to him only , 8 Rep. 136. Sir Iohn Needhams case , If a woman Obligee taketh one of the Obligors to be her Husband , the same is a discharge to the other . Two commit a trespass , the discharge of one is the discharge of both , yet it is there joynt or several at the will of the party who releaseth . But it may be objected , that it is a Casual act here , and therefore shall not be so prejudicial to the Plaintiff here . To that he answered , That that shall not help him , because it is his own lachess and default ; and the same Objection might have been made in Piggots case , where the Obligation is altered in a material place by a stranger without the privity of the Obligee , and yet there it was resolved that the same shall avoid the deed . Besides , if the Obligee had delivered the same over to another to keep , and it had been eaten with Rats and Mice , yet that would not excuse him , and by the same reason shall not help the Plaintiff here . Matthewsons Case , C. 5 Rep. differs much from this case , because there the Covenants are several , and not joynt as in this Case , and therefore if the Covenan●ee doth release to one of the covenanters , that shall not discharge the others . For the Cases of 14 H. 8. and Piggots Case they differ much from our Case , for there the covenants or conditions against the Law are void ab initio by the construction of the Law , and no alteration as in our case by the Act or default of the party by matter ex post facto , and therefore those Covenants or Conditions against the Law cannot vitia●e those which were good and according to Law , because they took not any effect at all . So if a Monk and another be bound , the Bond is void as to the Monk , and good as to the other , because there is no subsequent alteration by the party ; but the same is void by construction of law ab initio : and upon the same reason stands the Case of the Fine put of the other side . For which causes he prayed Judgment for the Defendant . Note , the Court , viz. Foster , Reeve , Crawley and Bankes Chief Justice did strongly incline that Judgment ought to be given for the Defendant ; and their reason was , That if the Obligee by his Act or own lachess discharge one of the Obligors , where they are joyntly and severally bound , that the same discharges them all : but gave day for the further debating of the Case , for that this was the first time it was argued . 207. By Justice Foster and Bankes Chief Justice , a Trust is not within the Statute of 21 Iac. cap. 16. of Limitations ; and therefore no lapse of time shall take away remedy in Equity for it ; but for other Actions which are within the Statute , and the time elapsed by the Statute , there is no remedy in Equity ; and that ( they said ) was always the difference taken by my Lord Keeper Coventry : but Justice Crawley said , that he had conferred with the Lord Keeper , and that he told him that remedy in Equity was not taken away in other Actions within this Statute . 208. It was said by the whole Court , that they never grant an Attachment without an Affidavit in writing . 209. The Case before of the warrant of Attorney , was betwixt Firburne and Cruse , and was entred Trinit . 17 Car. And now it was resolved upon reading of Presidents in Court , that no warrant of Attorney shall be made or filed , because that it is an error and not helped , being after judgment in Nihil dicit , & that none of the presidents came to our case . The greatest part of presidents were these , viz. the first was 1 Car. Taylor against Thellwell , the same appeared to be upon demurrer , and no Judgment given . Another was Mich. 3 Car. Peasgrove against Brooke , and in that Case it did not appear that any Writ of Error was brought . Another was , Paseh . 5. Car. Tayler against Sands . Another Hill. 6. Car. Smith against Bland , in that it was conceived to be amendment only ; and it was agreed for Law , that where there was a warrant of Attorney , it might be amended for any defect in it , as where there is a misprision of the name or the like , as it is resolved Br. amendment 85. and so is 1 and 2 Phil. and Mar. Dyer 105. pl. 6. expresly , where Alicia for Elizabetha in the warrant of Attorney was amended ; and that after a Writ of Error brought by construction of the Statute of 8 H. 6. and so is 9 E. 4. Br. amendment 47. And Justice Reeve said , it cannot appear to us by any of the said Presidents , whether there was a warrant of Attorney or not : and perhaps upon examination it might appear to the Judges that there was a warrant of Attorny , which is helped by the Statute of 8 H. 6. and that might be the reason which caused them to order that it should be filed ; but that doth not appear to us , and therefore the presidents were not to the purpose . Besides , it doth not appear by any of them whether judgment were given or not ; and before judgment it may be amended , as the Book is , 9 E. 4. 14. br . amendment 47. Besides , in one of them the Plaintiff did neglect to remove the Record , which is the very case in Dyer , and that was the reason that the warrant of Attorney was filed , but in this Case there appearing to be no warrant of Attorney it is not helped by the Statute of 8 H. 6. and after a Judgment , and that upon Nihil dicit , which is not holpen by the Statute of 18 Eliz ▪ and there is no Lachess in removing of the Record by the Plaintiff , and for these reasons the whole Court was against the Defendant in the Writ of Error , that it was Error , and therefore ought not to be amended . Note , that in this Case it was moved that the warrant of Attorney might be filed in this Court , after Error brought in the Kings Bench : but observe , that if it had been a thing amendable , that had been no impediment to it , for things amendable before Error brought , are amendable after , and if the inferior Court do not amend them , the superior may , and so it is adjudged 8 Rep. 162. in Blackm●res case . and so is the Case express in the point , 1 and 2 Phil. and Mar. Dyer 105. pl. 16. Where a warrant of Attorney was amended in Banco after Error brought and the Record certified . This is only my own observation upon the Cale . Mich. 17º Car. in the Kings Bench. 210. AN information was brought for the King against Edgerley Carrier of Oxford , because that where by the custom of England no Carrier or other person ought to carry above two thousand weight , and that with a Waggon having but two wheels , and but four horses , that the Defendant had used for the space of a year last past to drive Quoddam g●statorium , Anglicè a Drag or Waggon , Cum quatuor rotis & cum inusitato numero equorum , viz. with twelve Horses betwixt Oxford and London , and he had used to carry with it five thousand weight , so that he had digged and spoiled the way in a Lane called Lobbe-Lanè , that the people could not pass . To which the Defendant pleaded Not Guilty , and was found guilty by Verdict ; and many exc●ptions were taken to the Information : all which were over ruled by the Cour● , viz. Mallet and Heath Justices , and Bramston Chief Justice , to be 〈◊〉 : the first was , That he drave a Waggon Cum i●usitato numero equorum , and doth not shew the certain number of them , and therefore the Information which was in the nature of a Declaration was not good for the incertainty . But per Cu●iam the same was mistaken , for it saith , that he drave with eleven horses . The second exception was , That the usual weight which it ought to carry is not shewed ; but that was ruled also to be a mistake , for it saith 2000 weight . The third was , that it is not shewed in the Information that the way did lead to other Market-Towns than from Oxford to London ; but it was ruled to be good notwithstanding that exception , because that the place à quo , and the place ad quem is set down . And it is not material whether it lead to other towns or not . The fourth exception was , That the Nusance is said to be in a place called Lobbe-Lane , and it is not shewed of what quantity or extent that Lane is , viz. how many poles or the like : but it was ruled to be good , notwithstanding that , First , because that the Jury have found that the way was stopt that the people could not pass ; and if it was so , then it 's not material how long it was . Secondly , Lobbe-Lane is said only for the certainty of the place , that the Vi●●e might come from it : for of necessity it will be a Nusance through the whole way betwixt Oxford and London . And Lastly , the Nusance is laid to be through all Lobbe Lane , and therefore it is good notwithstanding that exceptson also . And therefore the matter and form of the Information being admitted good , then the Question was , what Judgment sh●ould be given in this Case ; whether that the Carrier should repair it at his own costs , or should be fined for the Nusance to the Commonwealth or not ? Justice Mallet : there are several Judgments in Cases of Nusance ; if it be an assise quia levavit , or quia exaltavit , it ought to be part of the Judgment , that the Defendant demolish it at his own costs : so where a Nusance is to a River , 19 Ass. pl. 6. But our Case differs much from the case of the River , for that is a High-way which leadeth to a Port to which all resort , and therefore a stronger Case : but he conceived that the Judgment should not be that he should repair it , because it is said in the Information , that the Township ought , and therefore it differs from those Cases : and he doubted whether he should be fined or no , because that the information is not vi . & armis , and not against any Sta●ute , for then it should be a contempt , and so fineable : but notwithstanding he agreed , that he should be fined . First , becaus● it is layed to be Contra pacem Domini Regis , & ad nocumentum of the Kings people , which is a contempt , and therefore fineable . Secondly , because that although it is not laid to be vi & armis , yet it is laid to be a rooting and spoiling , which implieth fo●●e ; 11 Ass. & 19 Ass. 6. where a Nusance was with force , there the Defendant was fined : Then admitting that the Defendant shall be fined ; the Question then is , What fine shall be set upon him ? and he said , that it shall be Secundum quantitatem delicti , & salvo wainagio suo , according to the Statute of Magna Charta , cap. 14. & West . 2. So that we ought not to assess a Fine upon any Freeholder to take away his contenement ; no● upon any Villain to take away his wainage ; and he said , that he conceived that the fine set upon him ought to be the less , for the great prejudice which might come to the Defendant , because that the Township might have an Action upon the Case against him , because they are bound to repair it , and therefore he cited 27 H. 8. 27. Further , he took exception to it , that it is not shewed of what value or estate the Defendant is , so as we might know what fine to impose ; for such fine ought to be imposed Salvo w●inagio suo as aforesaid : and he compared it to the Case in 4 E 4. 36. a Juror is demanded , and doth not appear , he shall be fined to the value of his estate for a year : but that ought to be enquired of by the Jury , and not set by the Court , because they do not know the value of his estate , so in this Case : but notwithstanding he agreed , that he should be fined , because it appeareth to us how great his fault was , and the fine ought to be as aforesaid , and therefore he set a fine upon him of four Marks . Justice Heath : two things are here considerable , whether there shall be any Judgment as this Case is ; and admitting that there shall , what Judgment shall be given ; and he agreed that Judgment should be given , because that the Information is good , as well for the form as for the matter of it : it is good for the matter of it , because Malum in se & ad nocumentum publicum , and therefore it is properly p●●●shable in this Court , & the rather now , because not punishable in another Court , the Star-Chamber b●ing now taken away : and it is good for the form of it , for it hath sufficient certainty , as is before shewed . Now for the judgm●nt what shall be given , he agreed that he should b● fined and imprisoned ; for imprisonment is incident to a fine , but he did not determine what the fine should be , he agreed the Rule that the fine shall be secundum quantitatem delicti , and that cannot be so ●ittle as it is made : for although Lobbe-Lane be layed in which the Nusance should be , that is only for necessity , that there may be a certain place for the Vis●e , but of necessity the N●●ance is through the whole High-way betwixt Oxford a●● London . And because we will not offend as the Star-chamber did by assessing too high fines , for which it was justly condemned ; so upon the other side , we ought not to set so small fines , that we injure Justice , and be thereby an occasion to increase such faults where we ought to suppress them : and therefore he conceived the fine set by Mallet too little ; but he agreed , that the Judgment should be fine and imprisonment ; but he adjorned the setting of the fine , until he had consulted with the Clerks , whether it should be inquired of by Commission , or other good information . Bramston Chief Justice , that the Information is good for the matter and the form : but he objected , that where it is said , that he did drive quoddam gestatorium , that gestatorium is a word incertain , and that therefore the Information should be insufficient ; but he agreed that notwithstanding that , that it was good by reason of the Auglicè ▪ for that reduceth it to certainty ; and he cited the Case betwixt Sprigge and Rawlinson , P●seh . 15 Car. in this Court ; where the Case was , that a man brought an Ejectione firme de uno repositorio , which word was put for a Warehouse , and resolved that it was naught for the incertainty , but the Chief Justice here said that it had been good if it had been explained by an Anglicè , and so he said it was resolved in that Case , and therefore he agreed that the Information here was good notwithstanding that exception by reason of the Anglicè , this offence is an offence against the Commonwealth , and such an offence for which a man may be indicted , for it is ●aid in the Information to be ad nocumentum Ligeorum Domini Regis , wherefore he agreed that the Judgment should be a fine with Capiatur , and he said , that it cannot be part of the Judgment in this Case , that the Defendant should repair it , because it is said in the Information expresly , tha● the Parishioners ought to repair it : and the Chief Justice said , ( and so Justice Heath which I before omitted ) that the Township cannot have their Actions , for so there should be multiplicity of Actions , which the Law will not suffer ; but he conceived that if any man had a special and peculiar damage , then he might have his Action , otherwise not : as if a man were bound by prescription or tenure to repair that place called Lobbe-Lane , or any part of it , then he might have his action upon the Case against the defendant , otherwise not : he agreed that the fine should be secundum quantitatem delicti ▪ but yet not too high , because the other Parishes may have their Information in like manner against the Defendant , but he agreed to adjorn the setting of the fine . Southward against Millard . 209. IN an Ejectione firme , the Defendant pleaded Not Guilty . Upon which a special Verdict was found . Nicholls possessed of a Term for 1000 years , devised the same to E. his daughter for life , the remainder to Iohn Holloway ; and made Lowe the Husband of the Daughter his Executor and died : Iohn Holloway devised his interest to Henry and George Holloway , and made Oliver and others his Executors and died ; afterwards Lowe spake these words : If E. my wife were dead , my estate in the premisses were ended , and then it remains to the Holloways . E. died , the Executors of Iohn Holloway made the Lease to the Plaintiff , and Lowe made the Lease to the Defendant , who entred upon the Plaintiff , who brought Ejectione firme ; and whether upon the whole matter the Defendant were guilty or not of the trespass and ejectment supposed , the Jury referred to the Court : and the points upon the Case are two . First , whether the words spoken by Lo●e the Executor be a sufficient assent to the devise or not : admitting that it is , then the Second Point is , Whether th● assen● came in due time or not , as to the interest of Iohn Holloway in the remainder , because he died before the words spoken which should make the assent ; and as to that , the p●int is no other , but that the Legatee dieth before assent to the Legacie , whether assent afterwards came too late , or that the Legacie shall be thereby lost or not , that is the Question : and by Justice Mallet , it is a good assent , and that in due time , And here some things ought to be cleared in the Case . First , that the devise to Iohn Holloway in the Remainder is good by way of executory devise . Secondly , that the devise by Iohn Holloway to Henry and George is a void devise , because but a possibility . Thirdly , that the assent to the first devise is an assent also to him in the remainder . And lastly , that if an Executor enter generally , he is in as Executor and not as devisee : all which are resolved in Lampetts and in Matthew Mannings Case . Now these Cases being admitted , the Question is , Whether that Lowe the Executor here hath made a sufficient Declaration , to take the Term as Devisee in the right of his wife , or not : for he hath his Election to take it as executor , or in the right of his wife ; and as I conceive he hath made a good Election to have it as Legatee in the right of his wife . The last words , viz. That then it remains to the Holloways , which is impossible by Law to be , because that the devise to them was void , he did not waigh , because but additional , and the first words of themselves are sufficient to make an assent , it is not a transferring of an Interest , but an assent only to it , which was given by the first Testator , and after assent , the devisee is in by the first Testator , and that being but a perfecting Act like an Attornment , and admittance of a copy-holder , the Law always favours it , for the Law delights in perfection , and therefore an assent by one Executor shall binde all , so an assent by one Infant-Executor above 14 years shall binde the other , so an assent to the particular Tenant is good to him in the Remainder ; Admittance of a Copyholder for life , is admittance of him in the remainder : which Cases shew that an assent being but a perfecting act , the Law shall always make a large construction of it : and he said , that Mannings case in the 8 Rep. is the very Case with our Case , as it appeareth in the pleading of it in the new Book of Entries 149. b. and also in Mannings Case aforesaid , but that Case was not resolved upon that point , for the devise there was , paying so much , and the devisee being also executor payed the money , and therefore it was ruled to be a sufficient assent to the Legacie , and therefore our case may be doubted notwithstanding that case ; and for my part I conceive it a good assent to the Legacie in our Case . And for the second point , I hold that the assent comes in due time to settle the Remainder , although that Iohn Holloway were dead before , for otherwise by this common casualty of death , which may happen so suddenly that an assent cannot be had before , or by the wilful obstinacie of the Executor , that he will not assent , Legatees should be defeated of their Legacies , which would be a great inconvenience . Besides , I hold that the devise by Iohn Holloway was void , he having but a possibility at the time of the devise , and therefore that it remain to his Executors , and by consequence , that the Ejectione firme brought by their Lessee will lie . Justice Heath acc . for the Plaintiff : Three things are here considerable . First , whether there need any assent at all of the Executor to a Legacie . Secondly , whether here be an assent or not . Thirdly , whether this assent come in due time or not . The first hath been granted , that there ought to be assent , for the great inconvenience which might happen to Executors if Legatees might be their own carvers , and so are all our Books except 2 H. 6. 16. and 27 H. 6 , 7. which seem to take a difference ; where the Legacie is given in certain and in specie , there it may be taken without assent , but where it is not given in certain , there it cannot ; but he held clearly the Law to be otherwise , that although it be given in certain , yet the Legatee cannot take it without assent of the Executor ; for so the Executor should be subject to a Devastavit without any fault in him , or any means to help himself , which should be very inconvenient . Then the second thing here to be considered is , Whether there be an assent or not : It is clear , that if an Executor enter generally , he shall be in as Executor , and not as Legatee , for that is best for him to prevent a Devastavi● ; and it is as clear , that if he declare his intention to be in as Legatee , that then he shall be so : then the Question here is , Whether the words in our Case be a sufficient declaration of the mind of the Executor to take the same as Legatee in the right of his wife or not : and I hold that it is . He agrees that the second words are not so weighty as the first ; but he held the first words are sufficient of themselves to make an assent : and when he saith , that then it remains to the Holloways , that proves that he took notice thereof as a Legacie , and that he would have it in that right , although in truth the devise by Iohn Holloway was void , so as it could not remain to them . For the third , he held that the assent came in due time , otherwise it might be very prejudicial to Legatees , for else by that means they may be many times defeated of their Legacies : for put Case that an Executor will not assent , and the Legatee dieth before he can compel him to assent , or that the Legatee dieth in an instant after the devisor , in the 5 Rep. Princes Case it is resolved that an Infant under 17 may not assent to a Legacie , nor the administrator Durante minori aetate ; then put case that the Legatees die during the administration , durante minori aetate , in whose time there cannot be an assent , It would be a v●ry great mischief , if that in any of these Cases the Legatees should be defeated of their Legacies , when by possibility they could not use any means to get them : wherefore he held clearly that the assent of the Executor after the death of the Legatee came in good time , and therefore he concluded for the Plaintiff . Bramston Chief Justice also for the Plaintiff . For the first point , he held that there is a good assent ; and he said , that Mannings Case hath the very words which our Case hath , but my Lord Cooke did not speak of these words in the Report of the Case , because he conceived that the payment of the money was a sufficient assent to the Legacie : but further I conceive , that it differs fully from Mannings Case , for there it is found expresly , that the Executor had not Assets , and therefore it should be hard to make him assent by implication , thereby to subject himself to a Devastavit ; for as I conceive , an Executor shall never be made to assent by implication where it is found that he hath not Assets , but there ought to be an express assent , by reason of the great prejudice which might come unto him , but in our Case it is not found that Lowe had not Assets : an Infant cannot assent without Assets ; but if there be , then it shall bind him , and perhaps that was the reason that my Lord Coke did not report any thing of these words , whether they were an assent or not ; and his passing over them without saying any thing of them , seems partly to grant and agree , that they did not amount to an assent . A man deviseth unto his Executor paying so much , and he payeth it , it is a good assent to the Legacie ; so is Matthew Mannings case 8 Rep. and Plowden Comment . Wel●den and Elkingtons case : and he said , that an assent is a perfecting act which the Law favours , and therefore he said that it was adjudged , that where an Executor did contract with the devisee for an assignment of the Term to him devised , that it was a good assent to the Legacie . For the second point also he held clearly that the assent came in due time ; for otherwise it should be a great inconvenience , for by that means it should be destructive to all Legacies ; for of necessity there ought to be an assent of the Executor , and if he will not assent , and the Legatee dieth before he can compel him to assent , or if the Legatee dieth immediately after the Devisor before any assent to the Legacie , in the first Case it should be in the power of the Executor , who is a stranger , to prejudice me ; and in the latter Case , the Act of God should prejudice me , which is against two Rules of Law , that the Act of a stranger , or the act of God shall not prejudice me , wherefore without question the assent comes in due time . Besides , If a Legatee dieth before assent to a Legacie , the same shall be assets in the hands of his Executors ; and the Legatee before assent hath an interest demandable in the Spiritual Court. An Executor before probate shall not have an Action , but he may release an Action , because that the right of the Action is in him : so in this Case , although that the Legatee before assent hath not an interest grantable , yet he hath an Interest releasable . A man surrenders Copyhold-Land to the use of another , and the surrenderee dieth before admittance , yet his heir may be admitted ; and this Case is not like those Cases put at the Bar , where there is but a meer possibility , and not the least Interest ; as where the grantee of a reversion dieth before Attornment , or the devisee before the devisor , in those Cases the parties have but a meer possibility , and therefore countermandable by death : but it is otherwise in our Case , as I have shewed before , and therefore I conclude that here is a good assent , and that in due time , and therefore that the Ejectione firme brought by the Plaintiff well lieth . Dale and Worthyes Case . 212. DAle brought a Writ of Error against Worthy to reverse a Judgment given in the County-Palatine of Chester ; and the Writ of Error bore Teste before the Plaint there entred , and whether the Record were removed by it or not , was the Question : and the Court , viz. Mallet , Heath and Bramston were clear of opinion , without any solemn debate , that the Record was not removed by that Writ of Error , because that if there be not any plaint entred at the Teste of the Writ , how can the Processus according to the Writ be removed , when there is no Processus entred ? and that failing , all fails ; and besides , it is meer for delay of Justice : and they agreed , that a Writ of Error bearing Teste before Judgment is good , as is the book of 1 E. 5. 4. because that there the foundation stands good , and it is the usual course of practise for the preventing and superseding of Execution . Tuder against Rowland . 213. AN Ejectione firme was brought ; and in the Writ was vi & armis , but it wanted in the Declaration , and whether it were Error or not , or whether it were amendable or not , was the Question : and Shaftoe for the Plaintiff held clearly that it was not Error ; but the Court did not hear it at that time : the Case was Entred Pasch. 16 Car. Rot. 333. 214. Bolstrood prayed a Prohibition to a Court-Baron , as also an Attachment against the Steward for dividing of Actions to bring the same within their Jurisdiction to defeat the Common Law , as also for refusing to suffer the Defendant to put in any other Attorney for him than one of the Attorneys of that Court : and the Court awarded a Prohibition , and the Steward Darey of Lincolns-Inn , then at the Bar , the Court ruled that he stand committed until he had answered to interrogatories concerning that misdemeanor ; and they said , That an Attorney at Common Law is an Attorney in every inferiour Court , and therefore ought not to be refused . Rudston and Yates Case , entred Hill. 15 Car. Rot. 313. 215. RVdston brought an Action of Debt upon a Bond against Yates ; the Defendant demanded Oyer of the deed and condition thereof , and upon Oyer it appeared , that the Bond was conditioned to perform an award : to which the defendant pleaded that the Arbitrators made no arbitrament ; upon which they were at issue , and the Jury found this special Verdict , that the Defendant Yates and one Watson submitted themselves to Arbitrament , and found that the Arbitrators made an Award , and found the Award in haec verba ; but further , they found that Watson was within age at the time of the submission : and whether upon the whole matter the Arbitrator had made any award or not , the Jury left it unto the Court ; so as the Question is no other , but whether an Infant may submit himself to an award or not : for it was agreed , that if the submission were void , that the award was void , and by consequence the Bond void ; and note , that the Case was , that Yates bound himself that Watson who was an Infant should perform the Award ; and the Condition recites , that where Watson who was an Infant had submitted himself to an award , that the Defendant binds himself that he should perform it , &c. So then if the Submission be void , all is void ; no submission , no award , and so no breach of the Condition , and therewith the Books agree , 17 E. 4. 5. 19 E 4. 1. 28 H. 6. 13. 5 Rep. 78. 10 Rep. 131. b. And by Justice Mallet , the submission is void , and void in part , void in all , for a submission is an entire thing , and therefore cannot be void as to the Infant , and stand good as to the man of full age . There are but two Books express in the point , 14 H. 4. 12. & 16 H. 6. 14. and none of those are of any authority ; in the first there is no debate of the Case . And the second is a flat quere : and as I conceive the better Opinion is , that the award is void ; for where it is there objected that it may be for the avail of the Infant , Br. tit . Coverture and Infancie 62 says Quere of that , for it may be that the recompence given by the award , may be of greater value than the Law would give in the Action , and therefore by possibility it may be a disadvantage unto him ; and the Case betwixt Knight and Stone , Hill. 2. Car. in this Court , Rot. 234. where this very point was in question , it was resolved that if the Infant had been bound to perform the award , that the Obligation had been void . Further , it was agreed , that if it appear afterwards to be to his prejudice , that that shall make the award void ; but the principal point was not adjudged , because that the parties agreed . But whereas it was then , and now also objected , That if an Infant cannot submit himself to an Arbitrament ; that thereby he should be in a worser case than a man of full age , for he may have done a Trespass which subjects himself to damages by suit in Law , which if he cannot discharge by this way , he should be in a worse condition than a m●n of full age , for he should lose that advantage . To that he answered , that if an Infant should be permitted to that , he might have loss thereby , for he hath not discretion to chu●e a comp●tent Arbitrator , and an Arbitrator might give greater damages than the cause did require : and he is worse than a Judge of the Court is , he is not sworn , a Judge is : Besides , an In●ant hath divers priviledges which the Court would allow , but an Arbitrator not . If an Infant make default , the same shall not bind him ; so if he confess an Action , the same shall not bind him , and therefore he is in better Case without submission , than by it : and if an Infant cannot chuse an Attorney , much less a Judge , for an Arbitrator is a Judge : an Infant cannot bind himself Apprentice , although it may be pretended to be for his benefit ; so 21 H. 6. 31. he cannot chuse a Bayliff , yet that is for his benefit ; he cannot give an acquittance if he do not receive the money , 5 Rep. Russels case , but if it be apparent for his benefit , it may be good , as a Lease of Ejectment to try a title made by an Infant is good , because it is apparent for his benefit : an Infant is in custodia Legis , and therefore we are bound by Oath to defend him . Besides , an Infant hath not power to dispose of his goods himself , and then how can he give such a power to another ? For which reasons he conceives the submission void ; and if no submission , no award ; and therefore he gave Judgment against the Plaintiff , Quod nihil capiat per ●illam . Justice Heath also against the Plaintiff : True it is , that in this Case a stranger is bound that the Infant shall perform the award , but that recites the submission by the Infant ; and the issue is , whether they made any award or not , so as the ground is , whether there be any submission or not ; for no submission , no award , that so by consequence Judgment ought to be given against the Plaintiff : and he held clearly that the submission is void , that an Infant cannot submit himself to an Arbitrament : the Judgment of Arbitrators ( provided that they keep themselves within their Jurisdiction ) is higher than any Judgment given in any Court ; for if they erre , no Writ of Error lieth to reverse their Judgment , and there is not so much as equity against them , and therefore it should be a hard case , that an Infant should have power to submit himself to that which should be final against him , and no remedy ; for , consensus tollit errorem : wherefore he conceived that the submission was void ; and if that which is the ground fa●ls , all fails . An Infant may take any thing , for that is for is advantage , and cannot prejudice him ; and the Church l●ke an Infant is in perpetual Infancie , and conditionem meliorem facere potest , but deteriorem nequaquam : And where it was objected in this Case , that this submission might be for the avail of the Infant , and therefore should be good ; he answered , and took this for a rule , that an Infant shall never submit himself to any thing under a pretence of benefit , which by possibility may prejudice him ; and with that agreeth the better Opinion of 10 H. 6. 14. that it shall not bind him because it may be to his prejudice , for they may give greater damages than peradventure the Law would give in any Action brought against an Infant . But 14 H. 4. is not any Authority . Where it was objected , that it shall be voidable at the election of the Infant ; To that he answered , that it is absolutely void , and therefore there cannot be any Election ; and it should be hard , that the man of full age should be bound , and the Infant not : an Infant shall not be an accomptant , because that Auditors cannot be assigned to him ; and he conceived that an Infant cannot bind himself an Apprentice , but it is usual in such cases for some friend to be bound for him ; and as this Case is , it appeareth by the Award that it might be for the prejudice of the Infant . For the Arbitrators award , that the Infant shall pay five pound for quit-Rents and other small things ; now what these small things were Non constat , and they might be such things , for which by the Law the Infant was not chargeable ; and by the same reason that they may assess five pound , they might have set twenty pound and more ; and it should be inconvenient that an Infant should have such a power to submit himself to the Judgment of any which might charge him in such manner . Besides , part of the Award is void for the incertainty , for it is said small things ; and it doth not appear what in certain ; and void in part , void in all ; and for these reasons he gave Judgment against the Plaintiff . Bramston Chief Justice agreed , that the submission is void , and not voidable only , as it was objected ; for then it should be tale arbitrium until reversal of it . 10 H. 6. and 14 H. 4. are no Authorities ; or if they be , the best Opinion is for the Infant , as it hath been observed , and Knight and Stones Case cited before is no authority , for no Judgment was given in the Case . But all in that case agreed , that the award was void ; because it was awarded that the Infant upon the payment of an hundred pounds should make a release , which proves that the submission was also void ; because that if it should be good , by the same reason the release . Where it was objected , that it shall be voidable at the Election of the Infant ; To that he answered , that the submission ought to be either absolutely good , or absolutely void ; for the end of an Arbitrament is to conclude and compose controversies , and the Arbitrators are Judges to determine them ; which should never be done , if it should lie in the power of the Infant to make good or frustrate the Arbitrament at his Election ; for which cause , to say that it shall be conditional is against the nature of an Arbitrament ; and to say , that it shall bind the Infant absolutely cannot be ; and to say , that it shall bind the one and not the other is unequal : Besides , there can be no election in this case ; for if he were within age , nothing binds him , if at full age he ought to perform it ▪ Besides , the Arbitrament it self , as this Case is , and as it was before observed by Heath , is void : for the award was , That the Infant should pay five l. for quit-Rents and other small things , and it doth not appear what those small things were ; so that for any thing that appeareth , it might be for such things for which the Infant by the Law was not chargeable , and therefore is void for the incertainty ; and void in part , void in all ; and by the same reason as the Arbitrators might award five pound , they might award twenty pound or more . But he conceived that if it had appeared in certain , that the things had been such , for which the Infant is by the Law chargeable , perhaps it had been good ; but here it doth not appear what the things were , and therefore it was not good . Trinit . 4 Car. Pickering and Iacobs case , it was resolved that a Bond taken for necessaries of an Infant was good , 8 E. 4. Arbitrators Award more than the debt is , the same is naught ; so here , for any thing that appeareth to the contrary , the Award was to pay such things as the Infant was not liable to pay ; and therefore void . But note Reader , I conceive that an Infant cannot submit himself to an Arbitrament for things for which by the Law he is chargeable , for the reason given before , because the Arbitrators may charge him farther than by the Law he is liable ; which should be to his prejudice , and he hath not any remedy for it . Judgment was given against the Plaintiff , Quod nihil capiat per Billam . The Case was entred Hill. 15 Car. Rot. 313. The Serjeants Case , Trin. 17 o Car. in the Common Pleas. 216. THe Serjeants Case was this . A. seised of Land in see , B. his Brother levied a Fine come ceo to C. B. had issue D. and died . A. died without issue , C. entred : D. entred and gave it to C. and R. his wife , and to the heirs of their two bodies . C. levied a Fine come ceo with proclamations to D. C. and R. have issue L. C. dieth : D. confirmeth to R. his estate , to have to her and the heirs of her body by C. begotten . R. dies , D. enters , L. oustes him , D. brings entre in the Quibus . In this Case there are two points ; First , Whether the Fine levied by B. shall bar his Issue as this Case is , or not : and that is the very point of Edwards and Rogers Case , Pasch. 15 Car. in the Kings Bench : and admitting it shall not bar D. then the second point is , what is wrought by the confirmation , if by that the Issue in Tail shall inherit or not , and that is the very point in the 9 Rep. Beaumonts Case . Saunderson and Ruddes Case in Common Pleas , Trin. 17 Car. 217. SAunderson brought an Action upon the Case for words against Rudde ; the Case was this : The Plaintiff being a Lawyer , was in competition for a Stewardship of a Corporation ; and the Corporation being met together for Election of a Steward , the Plaintiff was propounded to be Steward , and then the Defendant being one of the Corporation , spake these words of the Plaintiff to his Brethren of the Corporation : He ( praedict the Plaintiff innuendo ) is an ignorant man , and not fit for the place : and he said , that by reason of speaking of these words , that they refused to elect him Steward ; and whether these words were actionable or no , was the Question . This case was argued twice in Trinity-Term by Callis and Gotbold Serjeants , and the Judges seemed to incline to opinion , That the words were Actionable , but yet no judgment is given . Selden against King in Common Pleas , Trin. 17 Car. Regis . 218. IN a Replevin the Case was thus : A man granted a rent out of certain Lands , and limited the same to be paid at a house , which was another place off the Land ; and in the grant was this clause , that if the rent were behind , and lawfully demanded at the house , that then it should be lawful for the grantee to distrein : the Rent was afterward behind , and the grantee distreined , and upon traverse taken upon the demand , whether this distress upon the Land ( which had been good in Law if there had not been a special limitation of demand at a place off the Land ) be a good demand as this Case is , was the point . Mallet Serjeant : the distress is a demand in it self , and there needs not any other demand , although the rent be to be paid off the Land as here . And it was adjudged in this Court about 3 years past , that the distress was a sufficient demand : but I confess that a Writ of Error is brought in the Kings Bench , and they incline there to reverse it , and there is no difference where the rent is payable upon the Land , where not , and so it was adjudged , Trin. 3 Car. Rot. 1865 or 2865. betwixt Berriman and Bowden in this Court : and he cited also Fox and Vaughans Case , Pasch. 4 Car. in this Court , and Sir Iohn Lambes case , Trin. 18 Car. Rot. 333. in this Court , both adjudged in the point ; and he cited many other Judgments . Iermyn Serjeant contrary , that the distress is no sufficient demand as this Case is : he ought to demand it at the place appointed by the grant , for it is part of the grant , and the words of the grant ought to be observed , 28 H. 8. Dyer . 15. and in the Comment . 25. a. it is said , that Modus legem dat donationi , and therefore by the same reason that the grantor may appoint the time and place of payment , as here he hath done ; by the same reason he may appoint a place for the demand ▪ and that he shall make that demand before he distrein ; for the same is neither repugnant nor impossible , nor against the Law , and therefore good , and by consequence ought to be observed : and then he answered the Cases which were cited to be adjudged against him . In Symmons ▪ Case in the Kings Bench there it was resolved that a distress was a demand in Law , and a demand in Law is as strong as a demand in fact , as it was said by Justice Barckley in debate of that Case . But note , that in that Case there was no time in certain limited : and further , in that Case the Rent was payable upon the land , and therefore in that Case I agree that a distress will be a good demand , because that the demand is to be made upon the land , but it is not so in our Case . In Sands and Lees case , Trin. 20 Iac. in this Court , there also the rent was payable upon the land . Berriman and Bowdens Case , Trin. 3 Car. cited before , I agree was our very Case in point , but there Judgment was given upon Confession , and therefore doth not rule our Case ; and in Sir Iohn Lambes Case there was no Judgment given , and therefore that doth not rule our Case ; but Melsam and Darbies case M. 6 Car. Rot. 389. in the Kings Bench a Case in the point , where Judgment was reversed upon a Writ of Error there brought for want of demand , and Selden and Sherleys case in that Court , a Case also in the point was reversed , Mich. 16 Car. in the Kings Bench upon a Writ of Error brought for want of demand : wherefore I conclude , that there ought to have been an actual demand at the house according to the grant in our Case , and therefore the Traverse in this Case taken by the grantor is well taken . Note , that Justice Crawley said , that Lambes Case was adjudged that there needed no demand , and he said , that there were three Judgments accordingly in this Court : but Rolls Serjeant said , that Darbies Case was reversed in the Kings Bench for want of a demand . But note , that Foster and Reeve Justices , did incline that there should be a demand , and so Bankes Chief Justice , for he said , that it is part of the contract , and like a condition precedent ; for as in a condition precedent , a man ought to perform the condition before he can take any thing by the grant , so in this Case the grantee ought to make a demand to enable him to distrein , for before the demand he is not by the manner of the grant ( which ought to be observed ) entitled to a distress : wherefore he give direction to the Counsel that they would view the Records , and shew them to the Court ; and further he said to them , that where it appeareth , that the Rent was demandable upon the land , that those cases were not to the purpose , and therefore wished that they would not trouble the Court with them . Levet and Sir Simon Fanshawes Case in Common Pleas , Trin. 17. Car. Regis . 249. LEvett brought debt against Sir Simon Fanshawe and his Wife as Executrix of another , and sued them to the Exigent , and at the return of the Exigent , the Defendant Sir Simon Fanshawe came in voluntarily in Court , and prayed his Priviledge because he was an Officer of the Exchequer : and whether he should have his priviledge in that case or not , was the question , and that rests upon two things . First , because he is sued , as this case is , meerly for conformity and necessity-sake , and in the right of another , viz. in the right of his wife as Executrix . And secondly , because he demands his priviledge at the Exigent . Whitfield Serjeant , that he ought to have his priviledge , and he cited Presidents as he said in the point , as Pasch. 44 Eliz. in the Exchequer , Iames Ashtons case s●rvant to the Treasurer , and Pasch. 23. Iac. Rot. 131. Stantons case also in the Exchequer , in both which cases he said husband and wife were sued in the right of the wife , and the husband had his priviledge . But he cited a Case which was nearer our Case , and that was Hill. 8. Iac. in the Exchequer , Wats and Glovers case , where husband and wife were sued in the right of the wife as Executrix ; and he said , that it was over-ruled that the husband should have his priviledge 22 H. 6. 38. and 27 H. 8. 20. in those Cases the husband and wife were sued in the right of the wife , and yet the husband was allowed his priviledge : But see Reader 34 H. 6. 29. & 35 H. 6. 3. against it : And note , that many of these cases come to the second point , whether he may demand his priviledge at the Exigent or not ; but for that see 9 E. 4. 35. Br. Priviledge 22. & 10 E. 4. 4. Br. Priviledge 40. Rolls Serjeant contrary , that the Defendant ought not to have his Priviledge ; and he said , that use , practise , and reason is against it ; and he took these differences . First , where the Defendants are coming to make their appearance , and are arrested , as in 22. H. 6. 20. and where they are sued in one Court , and the husband demands his priviledge , because he is an Officer in another Court , as in our Case . Secondly , where he is Defendant , and where he is Plaintiff . And lastly , where he is sued in his own right , and where in the right of another , as in our Case . For in the first of these differences he shall have his priviledge , in the latter not ; and it is to ouste this Court of Jurisdiction , and therefore shall be taken strictly . Besides , if in this Case the Defendant should have his priviledge , we should be without remedy ; for we cannot have a Bill against the wife , and we have no remedy to make the wife to appear ; and therefore it should be a great prejudice to us , if he should have his priviledge . Wherefore he prayed that the Defendant might not have his priviledge . Note , that Bankes Chief Justice seemed to agree the differences put by Rolls , and also he conceived that point considerable , whether the Defendant had not surceased his time in this Case , because he demands his priviledge at the Exigent , and not before . And note , the whole Court , viz. Foller , Reeve , Crawley and Bankes Chief Justice seemed to incline , that the Defendant should not have his priviledge , because that the Action was brought against him and his wife , in auter droit , viz. in the right of the wife as Executrix : but no Judgment was then given . Hillary 17º Car ' in the Common Pleas. Moss and Brownes Case . 220. MOsse exhibited a Bill in the Court of Requests against Brown , and in his Bill set forth that the Defendant was indebted unto him in the sum of 400 pounds for wares delivered to him : and further , he shewed how that the Defendant was decayed in his estate , and was not able to pay him , and therefore he was content to accept of an hundred pound for the whole ; and that the Defendant at the payment of the said hundred pound , required the Plaintiff to give him a general release , and then promised him in consideration that he would make him a general release , that he would pay to him the residue of his debt whensoever God should please to make him able ; and the defendant divers times afterwards did renew his promise with the Plaintiff . Further , he shewed that now a great estate to such a value is fallen to the Defendant , and that now he is able to pay him , and notwithstanding refuseth so to do ; which is the effect of the Plaintiffs Bill . To that the Defendant answered and pleaded the Statute of Limitations of Actions : and the Court of Requests would not admit this Plea. But note , the Defendant pleaded first the general issue , that he made no such promise , upon which they were at issue , and found against him ; and afterwards he pleaded the Statute of Limitation , and upon the whole matter Serjeant Clarke moved for a Prohibition . First , because the Bill is in the nature of an Action upon the Case at the Common Law , and whether he promised or not promised is triable at Law. Secondly , because the Court refused the ●●ea of the Statute of Limitations , which they ●●ght not to do , because there is no remedy in Equity against a Statute . Serjeant Whitfield contrary , that no Prohibition ought to be granted . First , because the Plaintiff hath no other remedy but in Equity , because that the Assumpsit made before the release is discharged by the release , and the Assumpsit which was after , is void ; because there is no consideration , the debt being released before . Secondly , our case is not within the Statute of Limitations , for it is but a trust reposed in the Defendant that he would pay the residue when God should make him able : and being a bare trust , is not taken away by the Statute of Limitations . But he agreed for any Action which is within the Statute , and is superannuated , that there is no remedy in Equity . But in answer to that it was said by Clarke , that there is no trust expressed in the Bill . But notwithstanding that , it was resolved by the whole Court , viz. Foster , Reeve , Crawley Justices , and Bankes Chief Justice , that no Prohibition ought to be granted , for the reasons given before by Whitfield ; and they said , that although no trust be expressed , yet if it appeareth upon the whole Bill that there is a trust , it is enough , and he needs not to express it . And note , there was an order of the Court of Requests produced by Clarke , by which it was ordered , That the parties should take issue only upon the subsequent promise , and should not meddle with the first , which as the Court conceived made the Case a little worse ; notwithstanding the Court would not award a Prohibition ; for they said , so long as they order nothing against the Law , it is good , and they ought to be Expositors of their own Orders : & therefore if it appeareth upon the merits of the Cause , and the body of the Bill , that they have Jurisdiction of the Cause , and proceed as they ought , be their Orders what they will , it is not material ; and therefore it was resolved by the whole Court that no Prohibition should be granted in this Case . Hill. 17º Car. in the Common Pleas. 221. DVdley who was a Parson did libel in the Arches against Crompton for scandalous and defamatory words , which words were these : Thou , ( meaning the Plaintiff ) lyest , th●u art a fool , and ( putting his hand behind him ) bid him kiss there : and further said to him , Thou hast spent ( so much a year ) in drunkenness : and Sentence was given for the Plaintiff , and now four years after Sentence the Defendant prayed a Prohibition , and the Court , viz. Foster , Reeve , Crawley Justices , and Bankes Chief Justice , were against the Prohibition because the Defendant came too late ; but if he had come in due time , the three Justices did incline that a Prohibition would have lien , because that the words are words only of passion and anger , and God forbid that all words spoken only in wrangling and anger should bear Action : But the Chief Justice inclined that the Defendant was punishable in the Ecclesiastical Court for those words ; for he said , that the suit there is pro salute animae & reformatione morum , and it was fit that his manners should be reformed , who spake such words of a man in Orders and a reverend Minister . And he said , that although that he held not that where there is no remedy at Law , that there they might sue in the Ecclesiastical Court ; yet he said , that in many cases , where there is no remedy at Law , yet there is remedy in the Ecclesiastical Court , and so he conceived in this Case . But that which made Justice Reeve to doubt whether a Prohibition should issue as this Case was , or not , was for the incertainty of their Sentence , which was for speaking of these words contained in the Articles , aut eorum aliqua , which he said is therefore not good , for he said , that Judgments or Sentences ought to have these two things , Veri●y and Certainty , and if there want any of these two , it is not good ; and if it should be suffered it were a mischievous case , for by this ●ick they might hold Plea of words not within their Jurisdiction , and we should not have power to prevent it ; for if some of the words should be actionable , some not , they might by this way hold Plea as well of words which were not actionable or punishable by them as of those which were . To which Foster agreed ; but Justice Crawley and the Chief Justice conceived that no Prohibition would lie notwithstanding that , for that might be the course amongst them ; and although it be incertain , yet it may be allowed by them for Law : and Reeve was of opinion , that a man might be indicted at the Assises before the Commissioners of Oyer and Terminer for speaking of such defamatory words , and that he grounded upon the Commission of Oyer and Terminer , which giveth them power to hold Plea de prolationibus verborum , and he conceived that a man might be fined for them . But the Chief Justice contrary , for the Commission giveth them power to hold Plea secundum legem & consuetudinem Angliae : Now if the speaking of such words be not punishable by the Law and Custome of England , then we cannot hold Plea of them by way of indictment or otherwise at the Assises for them . 222. It was said by the whole Court , that a bare Information at the Bar is not sufficient to cause the Court to examine any man upon Interrogatories ; wherefore they ruled , that the party should make an Affidavit . 223. Judgment was given against the principal , and after a Scire facias was brought against the Bail , who appeared and pleaded Nul tiel Record of the Judgment given against the principal , upon which day was given to bring in the Record in Court , at which day the principal tendred his body in discharge of the Bail , and now it was prayed by Pheasant Serjeant , that it might be admitted ; but Reeve , Foster and Bankes Chief Justice inclined against it : True it is , that the condition of the Bail is , that they render his body ( indefinitely ) withoue limiting any time in certain when they shall do it , or pay the condemnation : but yet they conceived , that if they appear and plead such a dilatory Plea as this is , that thereby they have waived the benefit of bringing in his body : and Justice Foster said , that the same being general and uncertain , the Law ought to determine a time certain when it shall be done , for otherwise by the same reason that they may do it now , they may do it twenty years after , which should be inconvenient and against the meaning of the condition . And Reeve said , that if this trick should be suffered , that the Bail might plead such a dilatory Plea , and afterwards bring in the body of the Principal , the Plaintiff should lose all his costs of suit which he had expended in the suit against the Bail , which would be mischievous . But Justice Crawley , that the usage hath always been , that the Bail might bring in the body of the Principal at any time before judgment given against them upon the Scire facias , and there are many presidents in this Court to that purpose . To that the Court seemed to agree , if they plead not such a dilatory Plea , as in this case : Therefore the Court awarded , that the Pronotharies should consider of it , and should certifie the Court what the use hath been in such case . 224. Serjeant Pheasant came to the Bar , and said to the Court , that antiently ( as appeareth by our old Books ) the usage was , that the Serjeants in any difficult point of pleading , did demand of the Court their advise concerning it , ●nd accordingly were used to be directed by the Court ; wherefore he humbly prayed of the Court to be resolved of this doubt . A man was imprisoned for not submitting to Patentees of a Monopoly , after seven or eight years past , and then he brought an Action of false Imprisonment , and that is grounded upon the Statute of Monopolies , 21 Iac. c. 3. whether in this case the Defendant might plead the Statute of 21 Iac. c. 16. of Limitations of Actions , or not , was the Question . But the whole Court was against him , that they cannot be Judges and Counsellors , and that they ought not to advise any man , for by that means they should prevent their Judgment ; and they confessed that that was the use , when the Serjeants used to count at the Bar , as appeareth in our Books . But they said , you shall never find the same to be used since they counted and declared before they came to the Bar , and these Counts and Declarations are upon Record , wherefore the Court upon these considerations would not advise him . Dewel and Masons Case . 225. THis Case of Dewel and Mason , which see before , pl. 184. came now again in debate , and it was adjudged by the whole Court , viz. Foster , Reeve , Crawley Justices , and Bankes Chief Justice , nullo contradicente , that the Plaintiff ought to have Judgment , and that upon these differences . First , where the Defendant is to do a single Act only , and where he hath election of two things to do . Secondly , the second difference stood upon this , that no notice is to be given , or tender made of a thing which lieth not in the power or proper conusance of the Plaintiff , so as the difference stands where it is a thing which lies in the conusance of the Plaintiff , and where not : and therefore where the award was that the Defendant should pay to the Plaintiff eight pound , or three pound and costs of suit , as should appear by a note under the Attorneys hand of the Plaintiff , it was resolved in that Case , that although the Attorney be in some respect as a servant to his Master , yet to this purpose he is a meer stranger , and therefore the Plaintiff was not bound to make any tender of that note , but the Defendant ought to have gone to the Plaintiffs Attorney , and required a note of him of the costs of suit , so as he might have made his Election : But they all agreed , that where it is a thing which lieth in the knowledge of the Plaintiff , that there he ought to have made a tender , or given notice , but in this Case it lieth not in the knowledge of the Plaintiff , and he cannot compel the Attorney to make it , wherefore it was resolved that the Plaintiff should have Judgment . 226. A man libelled for Tithes in the Ecclesiastical Court , & in his libel he set forth , how that the Tythes were set forth , but that the Defendant did stop and hinder the Plaintiff to carry them away any other way than through the Defendants Yard , and when he was carrying them that way , the Defendant being an Officer did attach them for an Assessment to the poor , and did convert them to his own use , upon which a Prohibition was prayed , because that the Tythes being set forth an Action of Trespass lieth at the Common Law : but Serjeant Clarke was against the Prohibition , because that the Libel is grounded upon the Statute of 2 E. 6. cap. 13. which is , That if the Parson , &c. be stopt or let in carrying his Tythes , that the party so stopping or letting should pay the double value , to be recovered before the Ecclesiastical Judge . But notwithstanding that , it was resolved that a Prohibition should issue , because he that will sue upon the Statute ought to mention the Statute , or to make his demand secundum formam Statuti . But here the Plaintiff doth not sue upon the Statute , for he doth not mention it nor the double value as he ought ; for they all agreed , that he ought to ground his Action upon the express clause of the Statute for the double value , wherefore a Prohibition was granted . 227. It was resolved upon the Certificate of the Pronotharies , viz. Gulson , Cory , and Farmer , that the custom of the Court was , That if a man sueth another for such a sum , or thing for which the Plaintiff ought to have special Bail , and doth not declare against him in three Terms , that the Defendant being brought to the Bar by a Habeas Corpus , ought to be discharged upon an ordinary appearance , and that they said is the course and practice in the Kings Bench , and that was now resolved to be as a certain Rule from thenceforth in this Court by all the Judges , viz. Foster , Reeve , Crawley , and Bankes Chief Justice . 228. It was said by Justice Reeve , that if A. being seised of an Advowson , grant the next presentation to B. and B. makes a Bond to A. to pay him twenty pounds when the Church shall fall void , that that is Simony ; and so he said it was adjudged in this Court in Pooles Case : and the whole Court did agree that it was Simony ; for otherwise by this way the Statute should be utterly defeated : and note , that it was said by Serjeant Rolls at the Bar , That it had been often ●adjudged , that the Obligor could not avoid such an Obligaion without special averment . Palme against Hudde . 329. PAlme brought a Quare impedit against Hudde , and the case was thus : It was debated by Serjeant Godbold , the Plaintiff brought a Quare impedit against the Defendant , the Defendant shewed how the King was intitled by reason of Simony , and that the King had presented the Defendant , and that he was persona impersonata of the presentation of the King ; the Plaintiff denied the Simoniacal contract , upon which they were at issue , and it was found for the Defendant , so as that Judgment was given for the Defendant . And the same Plaintiff brought this second Quare impedit against the same . Defendant , who pleaded all the matter before and the Judgment , but did not say that he was now persona impersonata , but that he was tunc persona impersonata , and that was said by the Serjeant to be naught : for he said , that at the Common Law , no Parson might plead to the Title of the Parsonage but only in the abatement of the Wr●t , or such like Pleas : s●e Lib. Entries 503 , and 522. and 8 Rep Foxes case : and he said , that that is a Plea at the Common Law , and not upon the Statut● of 25 E. 3. for then he ought to have pleaded , that Est persona impersonata , and not that fuit , and that to enable him to plead to the Title of the Patronage , according , to the Statute , for he who will plead according to the Statute ought to pursue it , or otherwise his Plea is not good , & he cannot plead to the Title of the Patronage without shewing that he is persona impersonata : the Books are clear 7 Rep. 25 , 26. 15 H. 7. 6 , and 7. 2 R. 2. Incumbt . 4. 4 H 8. Dyer 1. & 27. And to say , that tunc fuit persona impersonata , is but an argumentative Plea , that because he was then , so he is now , and such P●ea is not good , for it ought to be positive and not by way of argument , or illation . Besides , it may be that he was persona impersonata , tunc , and not tunc , for he might resigne or be deprived after , or the like , and therefore it is a Non sequitur that he was persona impersonata then , and therefore now , and it shall be intended rather that he is not persona impersonata nunc , for paroles font Plea , and the Plea of every man shall be taken strong against himself ; wherefore he concluded that the Plea was not good . Foster agreed that the Parson cannot plead to the Title of the Patronage without shewing that he is persona-impersonata ; but the Question here is , as he conceived , Whether the Plaintiff be not stopped by this recovery and Judgment yet remaining in force to say the contrary . Bankes Chief Justice : It is true , that generally the Parson without shewing that he is persona impersonata , cannot plead to the Title of the Patronage . But whether the Defendant cannot plead the Record and Judgment , yet in force against the Plaintiff , without shewing that he is persona impersonata , that is the Question here . Note , it was the first time it was argued . Harwel against Burwel in a Replevin in the Kings Bench. 230. THe Case was thus : A man acknowledged a Statute to the Plaintiff , and afterwards granted a Rent-charge to the Defendant , afterwards the Statute is extended and safied and then the grantee of the Rent distreins . And whether he might distrein without bringing a Scire facias , was the Question . And by Serjeant Rolls , he cannot distrein without a Scire facias brought ▪ and he took it for a Rule , That because the Conusee came in by matter of Record , he ought not to be put out or disturbed without matter of Record , for if that should be suffered , it would be a great discouragement to Debtees to take this manner of security for their debts : and the Conusor cannot enter without bringing a Scire facias ; and if the Conusor himself cannot enter , it is a good argument à fortiori that the grantee of a rent cannot distrein without a Scire facias ; and that the conusor himself cannot enter without bringing a Scire facias , vid. 15 H. 7. 15. 4 Rep. 67. Fullwoods case . And the grantee of the Rent is as well within the ground and rule before put as the conusor himself , and therefore he compared the case to the case in the 10 Rep. 92. that he who claims under another ought to shew the original conveyance . But he took a difference where the party comes in by act of Law , and where by the act of the party ; he who comes in by act of Law , shall not be put to his Scire facias , for so he should be without remedy , and if that should be permitted , it should a be subtile way for the conusor to avoid the possession of the conusee , and then he himself to take benefit of it , and that should be a fine way to defeat the Statute . Besides , by this way if the Statute should be satisfied by casual profit , or if the time should be expired and the Statute satisfied by effluxion of time , if in that Case the grantee should be permitted to distrein the beasts of the conusee for a great Rent , perhaps before that the Conusee by possibility might remove from the Land , it would be a great disturbance to the Conusee . Besides , if a stranger enter upon the conusee , the conusee upon his regress may hold over : but not so in this Case , where the grantee of the Rent distreins , and that should be also a great prejudice to the conusee . But it was objected that the grantee of the rent could not have a Scire facias , and therefore if he might not distrain , he should be without remedy ; To which he answered , that if it should be so , it is his own fault , for he might have provided for himself by way of covenant . But he conceived that he might have a Scire facias ; for he said , that it is a Judicial Writ issuing out of the Rolls , which might be framed and made according to the case of any man : and it is not enough to say , th●● there was never such a Writ granted in the like case , but he ought to shew where it was ever denied : besides , it is not always necessary that he that shall have this Writ should be party to privy to the Record , as app●areth by these Books , 46 Ass. Scire facias 134. 32 E. 3. Scire facias 101. and 38 E. 3. 12. Br. Scire facias 84. Again , it is not necessary that the Scir● facias should be either ad computandum , or ad rehabendum terram , as it was objected , for as I have said before , it may be framed according to the case of any man , and vary accordingly : wherefore he prayed Judgment for the Plaintiff : and note , that at this time Justice Heath seemed to incline for the Plaintiff . Thorne against Tyler in a Replevin . 231. THe Plaintiff shewed that the Defendant took certain Beasts of the Plaintiff such a time and place , and detained them against gages and pledges , &c. The Defendant as Baily of the Mannor of the Lord Barckley made conusance of the taking of the cattle ; and said , that long time before the taking of them , the Lord Barckley was seised in see of a Mannor in Gloucestershire , within which there were Copy-hold-Tenants time out of mind , demiseable for one , two , or three lives : that there was a custom within the same Mannor , that if any copyhold-tenant did suffer his messuage to be ruin'd for want of repairing , or committed waste , & that is presented by the homage ; that such tenant so offending should be amerced , and that the Lord had used time out of mind to distrein the beasts as well of the tenant as of the under-tenant of such custom●ry tenements , levant and couchant upon such customary tenements for such amercement , and further said , that one Greening was tenant for life of a customary tenement within that Mannor , and made a Lease unto the Plaintiff for one year , and that 15 Car. the homage did present that Greening had suffered his Barn , parcel of the customary Tenements aforesaid , to fall for want of repair , for which he was amerced to ten shillings ; and that in Iuly 16 Car. the Defendant as Bayly of the Lord Barckley did distrein the Plaintiffs cattle , being under-tenant for the said amercement upon the said customary tenement , and so he made conusance and justified the taking of the beasts as Bayly of the Lord Barckley : The Plaintiff confessed that Greening was tenant , and that he made a Lease to the Plaintiff for a year ; and further he confessed the want of repairing and presentment , and the amercement upon it , but he denied that there is any such custome : upon which they were at issue , and the Jury found for the Defendant that there was such a custom , and it was moved in arrest of Judgment that the custom was not good , because it was unreasonable ; for here the Tenant offended , and the under-tenant is punished for it , which is against all reason that one should offend and another should be punished for it . Besides , the under-tenant here is a stranger , and the custom shall never extend to a stranger , and therefore the custom to punish a stranger who is not a Tenant of the Mannor is a void custom . Further , it was said that the amercement properly falls upon the person , and therefore being personal it cannot be charged upon the under-tenant . But notwithstanding all these Objections , it was resolved by all the Justices upon solemn debate , that the custom was good , and therefore that the avowant should have Judgment . Justice Mallet . custom si aliqua defalta fuerit in reparatione to amerce the tenant and to distrein averia sua , vel averia subtenentis levant and coucbant upon the customary tenement , is a good custom . I agree that a custom cannot extend to a stranger who is not within the Mannor , and therewith agreeth 3 Eliz. Dyer 194. b. pl. 57. Davis Rep. 33. a. & 21 H. 6. and many other Books ▪ but the matter 〈◊〉 is , whether the Plaintiff be a stranger or not , and I conceive that he is no stranger but a good customary tenant , and he shall have any benefit or priviledge that a customary tenant shall have , although he holdeth but for one year , and by the same reason that he shall enjoy the priviledge of a customary tenant he shall undergo the charge ; for Qui s●ntit commoduin sentire debe● & ●nus ; and by the general custom of England every Copyholder may make a Lease for one year , as is resolved in the 4 Rep. 26. ● . and it is good ; and if so , then the Plaintiff here cometh in by custom , and is no stranger but a good customary tenant , and therefore the custom may well extend to him : as there is Dominus pro tempore , so there is tenens pro tempore , and such is the Plaintiff here : and he held , that the wife that ●ath her widows estate , according to the custom of the Mannor , is a good customary tenant . A woman Copyholder for life , where the custom is that the husband shall be tenant by the curtesie , dieth , I hold the husband in that case a good customary tenant . In Gloucester where this Land is , there is a custom that Executors shall have the profits for a year , and I conceive them good customary tenants . Besides , this under-tenant here is distrainable by the Lord for the rents and services reserved by the Lord , or otherwise by this way he might defeat the Lord of his services . The custom was , That a woman should have her widows estate ; the Copy-tenant made a Lease for one year and died , and adjudged that the woman should have her widows estate as excrescent by Title Paramouns , the estate made for one year : see Hab. Rep. And as these the estate of the wife was derivative ; so here : and although it be not the intire Copyhold estate , yet it is part of it , and a continuation of it , and is liable to every charge of the Lord , 6 Rep. Swaines case ; wherefore he concluded that the custom is good , and that the avowant ought to have Judgment . Justice Heath : the custom is good both for the matter and form of it ▪ where it was objected , that for a personal injury done by one , the cattle of another cannot be dis●teined , I agree , that it is unjust that where alius peccat alius plectitur ; but our case differs from that rule , for this was by custom , for Transit terra cum onere , he who shall have the land ought to undergo the charge . Besides ▪ wheresoever a custom may have a good beginning , and ex certa & rationabili causa , it is a good custom , Bracton lib. 1. cap. 3. But this might have a reasonable ground at the beginning , for here the punishment is a qualification of the Law : for where by the Law the Copyhold-tenant is to forfeit his copyhold-tenement for waste , either voluntary or permissive , now this penalty is abridged and made more easie , and therefore is very reasonable , 43 E. 3. 5. & 44 E. 3. 13. custom , that if a tenant be indebted to the Lord , that he may distrein his other tenants for it , is not good ; but if it were for Rent , it should be good , because , it may be , the tenants at the first granted it to the Lord , 22 H. 6. 42. 12 H. 7. 15. & 35 H. 6. 35. custom to sell a distress is good , and yet it cannot be done but by Act of Parliament . And where it was objected that the amercement is personal , and therefore cannot extend to the Plaintiff ; to that he answered , that it is not meerly personal , but by custom ( as aforesaid ) is now made a charge upon the Land , and therefore not meerly personal . Besides , if the custom in this case had been , that the Plaintiff for waste should forfeit his Copyhold-tenement , it had been reasonable à fortiori in this case that he shall be only amerced : wherefore he concluded , that the custom is good , and therefore that the avowant should have judgment . Bramston Chief Justice : that the custom is good , and that he conceived to be clear . First , he conceived that the custom is reasonable as to the Copy-tenant , for clearly by the Common Law , if he suffer , or do waste , he shall forfeit his Copyhold , and therefore this custom is in mitigation of the penalty ; and therefore is reasonable , and that is not denied ; but the only doubt here is , whether the custom to distrein the under-tenant for an amercement layed upon the tenant be a good custom or not : and he conceived it is , for the custom which gives the distress knits it to the Land , and therefore not meerly personal as it was objected . And if the custom had not extended to the under-tenant , he might have distreined him , for otherwise the Lord by such devise as there is , viz. by the making of a Lease for one year by the Tenant should be defeated of his services , 3 Eliz. Dyer 199. resolved , custom to seise the cattle of a stranger for a Heriot is not good , because that thereby the property is altered . But custom that he may distrein the cattle of a stranger for a Heriot is a good custom , because the distress is only as a pledge and means to gain the Heriot : and in our case the Land is charged with the distress , and therefore the cattle of any one which come under the charge may be distreined for it , and therefore he held clearly that the custom was good , and that the avowant should have Judgment . Justice Barckley at this time was impeached by the Parliament of High Treason . 232. A man was indicted for murder in the County Palatine of Durham , and now brought a Certiorare to remove the Indictment into this Court ; and it was argued by Keeling at the Bar , that Br ' Domini Regis de Certiorare non currit in Com' Palatinum . But the Justices there upon the Bench , viz. Heath and Bramston , seemed strongly to incline , that it might go to the County-Palatine ; and they said , that there were many presidents in it ▪ and Justice Heath said , that although the King grant Iura Regalia , yet it shall not exclude the King himself ; and he said , their power is not independent , but is corrigible by this Court , if they proceed erroneously ; and he said , that in this case the party was removed by Habeas corpus ; and by the same reason that a Habeas corpus might go thither , a Certiorare might : for which cause it was awarded , that they return the Writ of Certiorare , and upon the return they would debate it . Hillary 17º Car ' in the Common Plea● . ●ayton against Grange in a second deliverance . 233. JOhn Layton brought a second deliverance against Anthony Grange , and declared of taking of certain Cattle in a place called Nuns-field in Swassam-Bulbeck , and detainer or them against gages and pledges , &c. The defendant made conusance as Baylift to Thomas Marsh , and said , that long time before the taking alledged , one Thomas Marsh the father of the Plaintiff was seised of the Mannor of Michel-Hall in Swass●●-Bulbeck aforesaid ▪ of which the Land in which time 〈◊〉 of mind , &c. was parcel , and that one Anthony Cage and Dorothy his wife , and Thomas Grange and Thomasine 〈…〉 of the Land in which , &c , as in the right of the sai● Dorothy and Thomasine their wives in de●esne as of s●e , and that they held the Land in which , &c. as of his Mannor of Michel-Hall , by soccage , viz. fealty ; and certain Rent payable at certain days , and that the said Thomas Marsh was s●i●ed of the said services by the hands of the said Anthony Cage and Dorothy his wife , Thomas Grange and Thomasine his wife , as by the hands of his very Tenants and he derived the Tenancie to one Sir Anthony Cage , and the Seigniory to Thomas Marsh the son , by the death of the said Thomas Marsh the Father , and because that fealty was not done by Sir Anthony Cage , he as Bayly of the said Thomas Marsh the son did justifie the taking of the said cattle ut ins●a feodu●● & dominium sue , &c. The Plaintiff by Protestation said , that Non 〈◊〉 the Lands aforesaid of the said Thomas Marsh , as of his Mannor of Michel-Hall in Swassa●●-Bulbeck aforesaid by soccage , viz. fealty and rent , as aforesaid , and pro placito said , that the Defendant took the cattle as aforesaid and detained them against gages and pledges , and then traversed , Absque hoc , that the said Thomas Marsh the Father was seised of the said services by the hands of the said Anthony Cage and Dorothy his wife , and Thomas Grange and Thomasine his wife , as by the hands of his very Tenants : upon which the defendant did demur in Law , and shewed for cause of demurrer , that the Plaintiff had traversed a thing not traversable ; and if it were traversable , that it wanted form , and this Term this Case was debated by all the Judges , and it was resolved by them all , that the Traverse as it is taken , is not well taken . Justice Foster , that the Traverse taken by the Plaintiff is not well taken at the Common Law , the Lord was bound to avow upon a person certain ; but now by the Statute of 21 H. 8. cap. 19. he may avow upon the Land , and this avowry clearly is an avowry upon the Statute , for it is infra feodum & dominium sua , &c. and so is the old Entries 565. then the Question here is , whether the Plaintiff be privy or a stranger ; ●or i● he he a stranger , then clearly at the Common Law he may plead no plea , but out of his Fee , or a Plea which doth amount to so much as appeareth by the Books , 2 H. 6. 1. 17 E. 3. 14 , & 15. 34 E. 3. Avowry 257. and many other Books as you may find them cited in the 9 Rep. 20. in the case of Avowry , & here it doth not appear but that the Plaintiff is a stranger , and therefore whether he be inabled by the Statute of 21 H. 8. to take this traverse or not , is the Question : and I conceive that he is : true it is , as it was objected , that this Statute was made for the advantage of the Lord , but I conceive , as it shall enable the Lord to avow upon the Land , so it shall enable the Tenant to discharge his possession , as if the avowry were upon the very tenant , and so is the Institutes 268 b. and so is Brown and Goldsmiths case in Hobarts Rep. 129. adjudged in the point , and the Plaintiff here who is a stranger is in the same condition , as a stranger was at the Common Law , where the Avowry was made upon the Land for a Rent-charge , in such case he might have pleaded any discharge although he were a meer stranger , and had nothing in the Land , so may he now after the Stat. of 21 H. 8. Then admitting that the Plaintiff might take this Traverse by the Statute ; then the Question is whether the Plaintiff hath taken a sufficient Traverse by the Common Law or not : for the Statute saith , that the Plaintiff in the Replevin or second deliverance shall have the like Pleas as at Common Law , and I conceive that this plea is not a good plea at the Common Law. And now I will consider whether if the Plaintiff had been a very Tenant , he might have pleaded this plea or not ; and I conceive that if this traverse had been taken by a very tenant , it had not been good . I agree the 9 Rep. 35 Bucknels case , that Ne unque seisie of the services generally is no good plea , but Ne unque scisie of part of the services is a good plea ; and so is 16 E. 4. 12. & 22 H. 63. and the reason that the first Plea is not good , is because that thereby no remedy is left to the Lord , neither by avowry , nor by writ of customs and services . And therefore the plea here is not good , because it is a traverse of the services generally . Besides , here the traverse is not good , because that the Plaintiff hath traversed the seism , and hath not admitted the tenure : and it is a rule in Law , that no man may traverse the seism of services , without admitting a tenure ; and therewith agreeth 7 E. 4. 28. 20 E. 4. 17. & 9 Rep. Bucknells case ; and then if the very tenant could not have taken this traverse , much less a stranger here . Further , here the tenure was alledged to be by rent and fealty , and the avowry was for the fealty , and the Plaintiff hath traversed the seism as well of the rent which is not in demand , as of the fealty , and therefore the traverse is not good . But it was objected , that seism of rent is seism of fealty , and therefore of necessity both ought to be traversed . I agree , that seism of rent is seism of fealty , but it is no actual seism of the fealty in point of payment , or to maintain an assise for it , as is 44. E. 3. 11. & 45 E. 3. 23. and the distress here is for actual seism of fealty . Every traverse ought to be adidem , as 26 H. 8. 1. & 9 Rep. 35. but here the traverse is of the Rent which is not in question , & therefore is not good in matter of form . Wherefore he gave Judgment for the avowant . Justice Reeve : the first thing here co●siderable is , whether this be a conusance at the Common Law , or upon the Statute ; and I hold clearly that it is within the Statute ; and for that see new Entries 597 & 599 ▪ & 27 H. 8. 20. and it is clear that the Lord hath Election either to avow upon the Statute , or at the Common Law ; and that is warranted by Institutes 268. and 312. 9 Rep. 23. b. 36. a. & 136. a. and then admitting , that it be an avowry upon the Statute . The second point is , whether the Plaintiff be inabled by the Statute to take this traverse or not , for it is clear , that at the Common Law the Plaintiff could not have this Plea , for a stranger could not plead any thing , but hors d●●son fee , or a plea which did amount to as much . I agree the Books of Br. Avowry 113. & 61. & 9 Rep. 36. & 27 H. 8. 4. & ●0 . & Br. Avowry 107. & Instit. 268. which are against me ; yet I conceive und●r favour , that notwithstanding any thing that hath been said , that the Plaintiff is not enabled by the Statute to take this traverse ; and I ground my Opinion upon the Reason at Common Law , as also upon the Stat●●e ; the first reason at the Common Law , I ground upon the Rule in Law , res inter alios act● , alteri nocere non debet , it is not reason that he who is a stranger shall take upon himself to plead to the Title of the Tenure , with which he hath nothing to do in prejudice of the very Tenant , and this reason is given by the Books of 22 H. 6 & 39 E. 3. 34. My second reason is grounded upon the maxime in Law , which is , That in pleading every man ought to plead that which is pertinent for him and his Case . And that 's the reason that the Incumbent at the Common Law cannot plead to the right of the Patronage wherein he hath nothing , but the Patrou shall plead it , as appeareth by the 7 Rep. 26. and many other Books there cited ; and these are my reasons at the Common Law , wherefore the Plaintiff being a stranger cannot plead this Plea. Secondly , I ground my self upon the purvieu of the Statute to prove that the Plaintiff cannot plead this plea , the words of which are , That the Plaintiffs shall have such Pleas and Aid-prayers as at the Common Law : and if the Plaintiff could have pleaded this Plea by the Statute , the Statute would not have enacted that there should be the like Aid-prayers as at the Common Law , for if the Plaintiff might plead this plea , then there need not any Aid-prayer ; and as at the Common Law no Aid-prayer was grantable of a stranger to the avowry , so neither is it so now ; and to prove that he cited 27 H. 8. 4. 19 Eliz. New Entries 598. & 26 H. 8. 5. against the Institutes , 312. a. Besides , the Statute gives the like pleas as at the Common Law , and therefore no new pleas , and that caused me to give those reasons before at the Common Law : and if this should be suffered , every wrangler by putting in of his cattle , should put the Lord to shew his title , which would be a great prejudice to him . The Statute of 25 E. 3. c. 7. enables the possessor to plead to the title of the Patronage , and that it is not till induction if it be against a Common person , which he ought to shew , otherwise he is not inabled to plead to the title , as it is in the 7 Rep. 26. a & Dyer fol. 1. b. But note , there the Statute enables him to plead to the title ; which is not so in our Case , the general words of the Statute of West . 2. have always received construction at the Common Law , as appeareth by 18 E. 3. 3. 10. 22 E. 3. 2. & 9 Rep. Bucknells case , and 11 Rep. 62 , 63. there you may see many Cases cited which have the like words of reference to the Common Law , as the Statute in that Case , and there always they have received construction by the common Law : the Authorities cited before against me , are not against me , for they say that the Plaintiff after this Statute may have any answer which is sufficient , so clearly by these authorities the answer ought to be sufficient , and that is the question in our Case , Whether the answer be sufficient or no , which as I have argued , it is not ; because the Plaintiff is not enabled to take this traverse by the Common Law ; and the Statute doth not give any other Plea than at the Common Law. 26 H. 8. 6. is express in the point , That the Plaintiff being a stranger , is not enabled by this Statute to meddle with the tenure ; wherefore I conceive that the Plaintiff is not a person sufficient within the Statute to take this traverse without taking some estate upon him , as in see for life or years , &c. But for the latter point , admitting that the Plaintiff were enabled by the Statute to take this traverse ; yet I hold clearly , that as this case is , he hath not pursued the form of the common Law in the taking of it : and I agree the rule that the Plantiff cannot traverse the seism without admitting of a tenure , and therefore the traverse here is not good , because he takes all the tenure by protestation . Besides , I agree that traverse of seism generally is not good , 9 Rep. Bucknells case ; and I agree that traverse of seism per manus is not good without confessing the tenure for part : and here he takes all the tenure by protestation , and therefore not good , 18 E. 2. Fitz. Avowry 217. is express in the point that the traverse is not good . Wherefore I conclude that Judgment ought to be given for the avowant . Justice Crawley , that Judgment ought to be given for the avowant ; he held clearly that the avowry is within the Statute , and that being within the Statute the Plaintiff is enabled to take this traverse , and that he grounded upon the Books of 34. H. 8. Br. Avowry 113. 24. H. 4. 20. 9 Rep. 36. and Hobarts Rep. 129. Brown and Goldsmiths Case . Then he being inabled by this Statute to take this plea as a very tenant , the Question is , Whether the Traverse here per manus be good or not , and he held not ; but he ought to have traversed the tenure as this Case is : that the traverse of the seism per manus generally is not good , I ground me upon the 9 Rep. Bucknells Case 35. a. and I agree the third rule there put , that Ne unque seisie per manus is a good plea , but that must be intended where the Plaintiff confesseth part of the tenure , which he hath not done in this Case , as it appeareth by the fourth rule there taken , which is an exception out of the precedent rule , upon which I ground my opinion , and therefore the traverse here is not good . Besides , Homage and Fealty are not within the Statute of Limitations , and therefore not traversable : and if it should be permitted , the rule in Bevills Case 4. Rep. 11 , 12. and Com. 93. Woodlands Case , which resolve that they are not traversable , should be by this means quite defeated . Further , in this Case the fealty only is in demand , and the Plaintiff hath traversed the seism of the rent as well as of the fealty , which is not good . I agree the Book in the 9 Rep. Bucknells Case fol. 35. that seism is not traversable but only for that for which the avowry is made , if not that seism be alledged of a superior service ( for which the avowry is not ) which by the Law is seism of the Inferiour service , with which agrees 26 H. 8. 1. & 21 E. 4. 64. But in our Case seism is not alledged of a superiour service , for which the avowry is not made but of an inferiour , viz. of a rent which is inferiour to fealty ( as the Books are of 21 E. 3. 52. Avowry 115. and 19 E. 4. 224. ) and which of right ought to be so , unless a man esteem and value his money above his conscience ; and therefore the traverse of the rent which is inferior service and not in demand , is not good . Besides , you cannot traverse the seism of the fealty without the traverse of the seism of the rent , because the seism of rent is the seism of fealty , and the rent is not here in demand , and therefore not traversable , and therefore you ought to have traversed the tenure ; for although it be said , that rent which is annual is inferiour to all other services , 4 Rep. 9. a. yet it is resolved that the seism of rent is seism of all other services : further , I conceive that if you avow for one thing , you need not to alledge seism of other services . 24 E. 3. 17. & 50. seemeth to cross the other authorities before cited ; but I believe the latter authorities . Wherefore I conclude that Judgment ought to be given for the avowant . Bankes Chief Justice : I conceive that it is a plain avowry upon the Statute , and therefore I need not to argue it ; here are two Questions only . The first , Whether this Plaintiff , who is a stranger , be enabled by the Statute of 21 H. 8. to plead in Bar of this conusance or not . Secondly , admitting that he be inabled by the Statute to plead this plea , whether the traverse be here wel● taken or not . To the first , I hold that he is inabled by the Statute to take this traverse : but for the second , I hold clearly , that the traverse is not well taken : here the Plaintiff and Defendant are both strangers , so as here is neither the very Lord nor the very Tenant . And now I will consider what the Common Law was before the Statute , it is clear that by the Common Law a stranger might plead nothing in discharge of the Tenancie , nor could plead a release , as the Books are 34 E. 3. Avowry 257. and 38 E. 3. Avowry 61. he could not plead rien arrere , or levied by distress , he could plead no Plea but hors de son fee , or a Plea which did amount to so much . I confess that the Book of 5 E. 4. 2. b. is that the Tenant in a Replevin could not plead hors de son fee , but the Book of 28 H 6. 12. is against it . True it is , that in some special Case , as where there is Covin or Collusion in the avowant , there the Tenant shall set forth the special matter , as it is in 9 Rep. 20. b. Now there are two Reasons given in our Books ; wherefore the Plaintiff in a Replevin being a stranger , could not plead in Bar of the Avowry . The first is , that the Seignory being in question , it is matter of privity betwixt the Lord and the Tenant . The second , that the Law doth allow unto every man his proper plea , which is proper to his Case , and that he ought to plead and no other , as appeareth by the Books , 12 Ass. p. 2. 13 H. 8. 14. 2. H. 7. 14. 13 H. 7. 18. Lit. 116. 35 H. 6. 13. & 45 E. 3. 24. Now seeing that the Plaintiff being a stranger could not plead this Plea at the Common Law , the Question now is , Whether he be inabled by the Statute to take this Plea or not ; the words of the Statute are , That the Plaintiff and Defendant shall have the like Pleas and Aid-prayer as at the Common Law ; and therefore it was objected that it doth not give any new Plea ; true it is , that by the express words thereof that it gives not any new Plea , but yet I conceive that any stranger is enabled to plead any plea in discharge of the Conusance by the equity of this Statute ; at the Common Law avowry was to be made upon the person , and therefore there was no reason that the Plaintiff being a stranger should plead any thing in Bar of the Avowry of Conusance , but now the Statute enables the Lord to avow upon the Land , not naming any person certain , it is but justice and equity that the Plaintiff should be inabled to plead any thing in discharge of it . I compare this Case to the Case in the 3 Rep. fol. 14. Harberts Case , where it is resolved that s●ossce of a Conusor of a Statute being only charged , may draw the other in to be equally charged ; and if execution be sued against him only , that he may discharge himself by Audita querela for so much . 8 E. 4. 23. a. there the Defendant avowed for a rent-charge , the Plaintiff shewed how that one E. leased the Land to him and prayed in aid of him , and resolved that he should not have aid because the avowry is for Rent-charge , so as th● Plaintiff might plead any plea that he would in disch●●ge of the land ; now by the same reason , where the lands of the Plaintiff were charged with a rent-charge , he might at the common Law have pleaded any thing in discharge of his land ; by the same reason where there is an avowry upon the Land according to the Statute , the land being charged , the Plaintiff may plead any thing in discharge thereof ; and this is my first reason . My second reason is , that this Law hath been construed be equity , for the benefit of the Lord , and therefore it shall be construed by equity for the benefit of the Tenant also , Instit. 286. b. My third reason is , Although the Plaintiff be a stranger and claimeth no interest in the Land , yet for the saving of his goods he may justifie this plea ; I may plead an assault upon another who endeavoreth to take away my goods , and I may justifie maintenance where it is in defence of my interest , as it appeareth in 15 H. 7. 2. and 34 H. 6. 30. Fourthly and lastly , upon the authorities in Law after the making of this Statute , I conceive that the Plaintiff may well take the Plea , 27 H. 8. 4. The plaintiff prayed in aid of a stranger and had it , which could not be ●t the Common Law , as appeareth by 3 H. 54. and 34 H. 6. 46. and many other Books ; and for Books in the point , 34 H. 8. Petty Brooke 235. Institutes 268. 9 Rep. 36. & Hobarts rep . 150 , 151. Brown and Goldsmiths Case : wherefore I hold that the Plaintiff may by the equity of the Statute plead this plea. But it was objected by my brother Reeve , that by the Statute of 25 E 3. c. 7. It is enacted that the possessor shall plead in Bar , and therefore the incumbent before induction cannot plead in Bar , as it is resolved in 4 H. Dyer 8. 1. and 31 E. 3. Incumbt . 6. and upon the same reason he conceived it should be hard in our Case , that the Plaintiff who is but a stranger , not taking upon him any estate , should be admitted to plead this plea ; especially the Statute in this Case saying , that the Plaintiff shall have the like pleas as at the Common Law : To that I answer , that by the Statute of 25 E. 3. it is enacted that the possessor shall plead in Bar , and therefore clearly there he ought to shew that he is possessor : otherwise he cannot plead in Bar , and therefore not like to our Case : and the Novel Entries 598 , 599. doth not make against it , for there it was not upon the Statute , and 26 H. 8. 6. is express that the Plaintiff being a stranger is enabled by the Statute of 21 H. 8. to take this plea : Wherefore I conclude this point , that the Plaintiff is inabled by the Statute to plead any thing in Bar of the avowry : But for the second point , I hold clearly that the traverse as it is here taken is not well taken , it is only an equitable construction that the Plaintiff shall plead this plea , as I have argued before , and therefore he ought to pursue the form of the Common Law , in the form of his traverse , which he hath not here done , and therefore the traverse is not good , and where the seism is not material , there it is not traversable , and in this Case the seisim of the fealty is not material , for it is out of the Statute of Limitations , and therefore not traversable : and so is it in the Case of a gift in tail , and grant of a Rent-charge , it is not traversable , because that the seism is not material , 7 E. 4. 29. Com. 94. 8. Rep. 64. Fosters Case . Secondly , where the Seigniory is not in question , there no traverse of seism , so it is in Case of Writ of Escheat , Cessavit Rescous , &c. and therewith agree the Books of 22 H. 6. 37. 37. H. 6. 25. & 4. Rep. 11. a. Bevills Case . Thirdly , where the Lord and Tenant differ in the services , there no traverse of the seism but of the tenure , but where they agree in the services , there the seism may be traversed , and therewith agree the Books of 21 E. 4. 64. & 84. 20 E. 4. 17. 22 Ass. p. 68. & 9 Rep. 33. Bucknells Case ; and therefore the traverse here is not good . First , because it is a general traverse of the seism per manus , the tenure not being admitted as it ought to be by the fourth rule in Bucknells Case , and therewith agreeth 23 H. 6. Avowry 15. Besides , it is a Rule in Law , That a man shall never traverse the seism of services , without admitting of a tenure , and in this Case he took the tenure by protestation , and therefore the traverse here is not good , and therewith agre●● 15 E. 2. Avowry 214. Further , the traverse here is not good , because he hath traversed a thing not in demand , which is the rent , for he ought to have traversed the seism of the fealty only for which the distress was taken , and not the rent as here he hath done , and therewith agreeth 9 Rep. 35. a. and 26 H. 8. 1. But as this Case is , he could not traverse the feal●y only because that seism of rent is seism of fealty , and therewith agreeth 13 E. 3. Avowry 103. 3 E. 2. Avowry 188. & 4 Rep. 8. b. Bevills Case , and therefore he ought to traverse the tenure . True it is , as it was objected by my Brother Foster , that seism of Rent is not an actual seism of fealty as to have an assise , but is a sufficient seism as to avow . And we are here in Case of an avowry , and therewith agreeth the 4 Rep. 9. a. Bevills Case : wherefore I conclude that Judgment ought to be given for the avowant . Here note , that it was resolved by all the Judges of the Common Pleas , that a traverse of seism per manus generally without admitting of a tenure is not good , and therefore see 9 Rep. 34. b. & 35. a. which seemeth to be contrary . Hill. 17º Car , in the Kings Bench. Hayward against Duncombe and Foster . 234. THe Case was thus : The Plaintiff here being seised of a Mannor with an advowson appendant , granted the next avoidance to I. S. and afterwards bargained and sold the Mannor with the advowson to the Defendants D. and F. and a third person , and covenanted with them that the Land is free from all incumbrances . Afterwards the third person released to the Defendants , who brought a writ of Covenant in the Common Pleas , and there Judgment was given that the Action would lie . Whereupon Hayward brought a Writ of Error in this Court. The point shortly is this , Whether the Writ of covenant brought by the Defendants without the third person who released were good or not ; and that rests only upon this , Whether this Action of covenant to which they were all intitled before the release , might be transferred to the other Defendants only by the release or not . And it was objected , that it could not , because it is a thing in Action , and a thing vested which cannot be transferred over to the other two only by the release ; but that all ought to joyn in the Action of covenant notwithstanding . Rolls contrary , because that after this release it is now all one as if the bargain and sale had been made to those two only , and now in an Action brought against them two , they may plead a seoffment made to them only , without naming of the third who released , and so it is resolved in 33 H. 6. 4 , & 5 , & 6 Rep. fol. 79. a. Besides this covenant here is a real covenant , and shall go to assignees , as it is resolved in 5 Rep. Spencers Case ; and here is as violent relation as if the seoffment had been made to them two only . It was objected by Justice Heath , What if the other died ? It was answered , perhaps it shall there survive , because that it is an Act in Law , and the Law may transfer that which the Act of the party cannot , because that Fortior est dispositio legis quam hominis , &c. Booremans Case . 235. BOoreman was a Barrister of one of the Temples , and was expelled the house , and his Chamber seised for non-payment of his Commons , whereupon he by New digate prayed his writ of restitution , and brought the writ in Court ready framed ; which was directed to the Benchers of the said Society : but it was denied by the Court , because there is none in the Inns of Court to whom the writ can be directed , because it is no body corporate , but only a voluntary Society , and submission to Government ; and they were angry with him for it , that he had waived the ancient and usual way of redress for any grievance in the Inns of Court , which was by appealing to the Judges , and would have him do so now . Bambridge against VVhitton and his wife . 236. IN an Ej●ctione firme upon Not Guilty pleaded , a special Verdict was ●ound , & the case upon the special verdict this ; A Copyhold Tenant in fee doth surrender into the hands of two Tenants , unto the use of I. W. immediately after his death , and whether it be a good surrender or no , was the question . Harris : that the surrender is void . Estates of Copyholds ought to be directed by the rule of Law , as is said in 4 Rep. 22. b. 9 Rep. 79. & 4 Rep. 30. And as in a grant , a grant to one in ventre sa mier is void , so also in a will or devise , and as it is resolved in Dyer 303. p. 50. so it hath been adjudged that the surrender to the use of an Infant in ventre sa mier is void : and as at Common Law a Freehold cannot begin in futuro , so neither a Copyhold , for so the surrenderer should have a particular estate in him without a donor or lessor , which by the rule of Law cannot be : and he took a difference betwixt a D●vise by Will , & a Grant executed ; in a devise it may be good , but not in a grant executed : and here he took a difference where the Grant is by one intire clause or sentence , and where it is by several clauses , 32 E. 1. taile 21. Dyer 272. p. 30. Com. 520. b. 3 Rep. 10. Dowties Case , and 2 Rep. Doddingtons case . For instance , I will put only the Case in Dyer and the Comment . A Termor grants his Term habendum after his death , there the Habendum only is void , and the grant good ; but if he grant his Term after his death , there the whole grant is void , because it is but one sentence : So I say in our Case , because it is but one clause , the whole grant is void . Another difference is , Where the distinct clause is repugnant and where not ; where it is repugnant there it is void and the grant good , quia utile per inutile non vitiatur : But in our Case , as I have said before it is one intire sentence , M. 13. or 23 Iac. in this Court , Rot. 679. Sympson and Southwells Case , the very Case with our Case . There was a surrender of a Copy tenant to the use of an Infant in ventre sa mier after the death of the surrenderor , and there it was resolved by all the Judges except Dodderidge that the surrender was void , First , because it was to the use of an Infant in ventre sa mier , and Secondly , because it was to begin in futuro , which is contrary to the rule in Law ; and Copy-tenants as it was there said , ought to be guided by the rules of Law : but Dodderidge doubted of it , and he agreed the Case at Common Law , that a freehold could not commence in futuro , but he doubted of a Copyhold ; and he put the Case of surrender to the use of a Will ; But he said , that Judgment was afterwards given by Coke Chief Justice in the name of all the other Judges that the surrender was void , and therefore Quod querens nihil capiat per billam , wherefore he concluded that the surrender was void , and prayed the Judgment of the Court. Langhams Case . 237. LAngham a Citizen and Freeman of London was committed to Newgate by the Court of Aldermen , upon which he prayed a Habeas corpus , which was granted , upon which return was mane , First , it is set forth by the return , that London is an ancient City and Incorporate by the name of Mayor , Comminalty and Citizens , and that every Freeman of the City ought to be sworn , and that a Court of Record had been held time out of mind , &c. before the Mayor and Aldermen . And that there is a custom , that if any Freeman be elected Alderman ; that he ought to take an Oath cujus tenor sequitur in haec verba , viz. You shall well serve the King in such a Ward in the Office of Alderman of which you are elected , and you shall well intreat : the people to keep the Peace and the Laws and Priviledges within and without the City : you shall well observe and duly you shall come to the Court of Orphans and Hustings if you be not hindred by Command of the King , or any other lawful cause : you shall give good counsel to the Mayor : you shall not sell Bread , Ale , Wine , or Fish by retail , &c. Then is set forth a custome , that if any person be chosen Alderman , he shall be called to the Court , and the Oath tendred to him ; and if he refuse to take it , then he shall be committed , until he take the Oath . Then is set forth , that by the Statute of 7 R. 2. all the customs of the City of London are confirmed . And lastly , is set forth that the 11 of Ian. Langham being a freeman of London , and having taken the Oath of a freeman was debito modo electus Alderman of Portsoken-ward , and being habilis & idoneus was called the first of February to the Court of Aldermen , and the Oath tendred to him , and that he refused to be sworn in contemptum Curiae , & contra confuetudines , &c. wherefore according to the custom aforesaid , he was committed by the Court of Aldermen to Newgate , until he should take the Oath , & haec fuit causa &c. To this retorn many exceptions were taken . Maynard : the retorn is insufficient for matter and form ; for form it is insufficient , for the debito modo electus , without shewing by whom and how , is too general : then it is insufficient for the matter , for he is imprisoned generally , and not until he takes the Oath , which utterly takes away the liberty of the subject , for by this means he may be imprisoned for ever . Besides , here is no notice given to him that he was chosen Alderman , but they elect him , and then tender him the Oath , without telling him that he was chosen Alderman , and therefore the retorn not good , for it ought to be certain to every intent . Further , the Oath is naught and unreasonable , for he ought to forswear his Trade , for if he sell Bread , Ale , Wine , or Fish before , now he must swear that he shall never sell them by retail after , which is hard and unreasonable , for perhaps he may be impoverished after , and so necessitated to use his Trade , or otherwise perish ; wherefore for these reasons he conceived that the Retorn was insufficient . Glynn upon the same side , that the Retorn is insufficient , and he stood upon the same exceptions before , and he conceived , that notice ought to be given to him that he was chosen Alderman , for this reason , because of the penalty which he incurs , which is imprisonment ; and he compared it to the Cases in the 5 Rep. 113. b. & 8 Rep. 92. That the feoff●e of Land or a Bargain of a reversion by Deed indented and inrolled shall not take advantage of a condition for not payment of Rent reserved upon a lease upon a demand by them without notice given to the lessee for the penalty which insues of forfeiture of his Term. So in our Case , he shall not incur the penalty of imprisonment for refusing to be sworn , without notice given him that he 〈…〉 chosen Alderman . He took another exception to the Oath , because he is to swear , that he shall observe all Laws and Customs of the said City generally , which is not good ; for that which was lawful before , p●radventure will not be lawful now ; for some Customs which were lawful in the time of R. 2. are now superstitious , and therefore are not to be kept . Further , it is to keep all the customs within and without the City , which is impossible to do . Wherefore for these reasons he conceived the Retorn not to be good , and prayed that the prisoner might be discharged . Saint-Iohn Sollicitor of the same side . The custom to imprison is not good . Besides , here the imprisonment is general , so that he may be imprisoned for ever , which is not good ; and the Statute confirms no customs but such as are good customs : I agree that a custom for a Court of Record to fine , and for want of payment to imprison may be good , because the custom goes only to fine and not to imprisonment ; the Case of 1 H. 7. 6. of the custom of London for a Constable to enter a house and arrest a Priest , and to imprison him for incontinencie comes not to our Case , for that is for the keeping of the peace , which concerns the Commonwealth , as it is said in the Book , and therefore may be good : but it is not so in our Case . A Corporation makes an ordinance , and injoyns the observance of it under pain of imprisonment , it hath been adjudged that the Ordinance is against the Statute of Magna Charta , that Nullus liber homo imprisonetur , &c. and therefore naught : and that is the 5 Rep. 64 a. Clarkes Case , and therewith agrees the case of the City of London , 8 Rep. 127. b. Mich. 14 & 15 Eliz. Marshalls Case in Harpers Reports , there a Habeas corpus was directed to the Mayor of Exeter , who returned a custom there that none but a freeman should set up a shop there , and if any other did , that he should be imprisoned , and it was adjudged no good custom , Mich. 21 E. 1. in the Common Pleas , Rot. 318. upon a Habeas corpus the custom of Cambridge was retorned , which was that the Vice-chancellor might imprison a Scholar taken in a suspicious place , I conceive the same no good custom , but it is not resolved . Besides , I conceive the return here is insufficient , because that no notice was given to the party that he was chosen Alderman , which I conceive ought to have been for the great penalty which follows , wherefore he prayed that the prisoner might be discharged . White of the same side ; the retorn is not good for want of notice ; and he said , that it doth not appear that he was present at the election , and no other notice appeareth by the Retorn ; and he said , that the tender of the Oath did not imply notice : further he said , that the Oath is not good , because he is to abjure his Trade . Besides , it is said in the Retorn that the custom is , That Si aliquis liber homo be elected Alderman , &c. and doth not say habilis & idoneus , as it ought to be , and therefore no good . True it is , that it is averred in the Retorn that he was habilis & idoneus , but it is not alledged to be part of the custom , and therefore that doth not help it , wherefore he prayed that the prisoner might be discharged . Gardiner , Recorder for the City , that the Retorn is sufficient ; and first for the debito modo electus , where it was objected that the same was too general ; to that he answered , that no traverse can be taken upon it , and therefore it is sufficient , for there is not such certainty required in a Retorn upon a Habeas corpus as in pleading , as it is resolved in the Case of the City of London , 8 Rep. 127. b. 128. a. and according to that it is resolved in 9 H. 6 44. a. where it is said , that if the cause in it self be sufficient upon the Retorn , it sufficeth although it be false ; and although there be not so precise certainty in it , and there it is resolved that the party cannot take issue upon the Retorn , and yet there is no prejudice by it , for if it be false you may have a Writ of false imprisonment , and therewith agrees 11 Rep. 99. a. h. Iames Baggs Case and Anne Bedingfields Case , 9 Rep. 19. whereupon a Ne unque accouple in legal Matrimony pleaded , the Bishop certified quod infra nominat ' E. & A. legitimo matrimonio copulati fuerunt , to which Certificate ( saith the Book ) being brief and direct in the point ; no exception was ever taken ; and if a Retorn upon a Haleas corpus should have all circumstances , it would be so long and perplexing , that there would be no end of it : and he conceived the retorn sufficient notwithstanding that Objection . Now for the exception that the Plaintiff had not notice of his election to be Alderman ; to that he answered , that it appeareth clearly that he had notice , for it app●a●reth that the same day that he was elected , he was called to take the Oath , and that was tendred to him , and he refused to be sworn , which certainly implies , that he had notice . For the exception that the Oath is unreasonable , because he was to abjure his Trade , which is in prejudice of the Common-wealth , from the using of which no man can bind himself , much less abjure against it : To that he answered , that notwithstanding that the Oath is lawful , and you forswear no more than the Law doth prohibit you , for it doth not extend to all Trades , but only to such as sell Bread , Ale , Wine and Fish ; and it is against Law and Reason , that he who hath the Jurisdiction of Bread , Ale , &c. and may punish the misusage of it , that he should exercise the same Trade himself ; wherefore he conceived that notwithstanding that exception the Retorn is sufficient ▪ For the objection to the Oath that he ought to swear that , he will keep all the priviledges of the City , whereas in truth there are many Priviledges , which are now unlawful , although that before they were lawful , and therefore , the same ought not to be kept ; to that he answered , that the Oath is good notwithstanding that Objection , for i● ought to be intended that he shall keep all priviledges and customs reasonable which agree with the times in which we live , and not such as are superstitious and unreasonable . For the Objection , that the custom is unreasonable , because it trencheth much upon the liberty of the Subject , and against the Statute of Magna Charta that the body of a Freeman should be imprisoned , and the rather because here the imprisonment is general , and he may be imprisoned for ever : to that it was answered , that the City hath customs as unreasonable as in this Case , as the custom in L. 5 E. 4. 30. 11 H. 6. 3. & 2 H. 4. 12. That the Creditor may arrest the Debtor before the day of payment to give better security , and that is altogether against the Rule of Law. Besides they have a custom which you shall find in 1 H. 7. 6. and 2 H●● 4. 12. That a Constable upon suspition of incontinencie may enter the house of a stranger and arrest the body of the offender and commit him to prison , and that is a good custom , and yet it is against the Law , & trencheth also upon the liberty of the Subject . Besides , they have a custom , that no person being not free of the City shall keep shop there , and that is adjudged a good custom , although it be to restrain trading , which is against the rule of the Law also , 8 Rep. 125. The Case of the City of London . And for the objection that it is unreasonable , because that the imprisonment is general : to that he said , it was a good objection if it were true , but that is mistaken ; for the retorn is expresly that he shall be imprisoned until he hath taken the Oath , which is not general , for if he take the Oath he shall be discharged ; and here he said that this Government by Aldermen in this City is one of the most ancient Governments in the Kingdom , beyond time of memory , and is a Government which of necessity ought to he supported , or otherwise the City would immediately be brought to ruine , for we cannot hold a Court without thirteen Aldermen , which ought to have care of the Orphans , and make Laws for the well government of the City , and that is of great consequence to all the Kingdom , and concerns the Government of it ; and if this City be well governed , the whole Kingdom will fare the better , and at this time we want many Aldermen , and if these shall escape , by the same reason others will do so , and so the Government utterly should fail . And where it was objected that it is usual to make them to take the Oath , and accept a fine of them after : To that he said , that they would not do so now in this Case ; for he said , that the party chosen is an able man , and a man whom they respect , and not his money : And therefore he said that the custom to imprison him for refusing is more reasonable than if the custom were to fine him ; for he said , that that Custom is the most reasonable custom , which is most fit for the attaining of its end ; and he said , that imprisonment is most apt for the obtaining the end : for when we accept a fine , there is no end of it , for he may be chosen after ; and how can the Government be supported which is the end of the election if all should be fined , wherefore the custom to imprison is more reasonable , than if the custom had been to fine ; because it is more apt to attain the end ; which is to maintain the Government : it is said in 38 Ass. p. 22 Br. Imprisonment 100. That it was resolved 2 Ma. in Parliament , that imprisonment almost in all Cases is but to detain him untill he makes a fine , and if he tender that to be discharged . To that he said , that the same ought to be understood , where a fine is imposed , but we do not intend to accept of a fine . Further he said , that there is a Judgment in the point , and that is the Statute of 3 Iac. cap. 4. which injoyns an Oath for Recusants to take , and for refusal that they shall be committed until , &c. here he said that an Act of Parliament hath done it in the like Case , and therefore he conceived the custom reasonable : and then he cited many presidents of commitment in this very Case . 2 H. 5. Iohn Gidney was dealt with in the same manner , 8 E. 4. Charles Faman was imprisoned , 36 H. 8. Thomas White , 1 Iac. Sir Thomas Middleton , all which were imprisoned for refusing to take the Oath . And lastly , he cited one 3 Iac. and that was Sir William Bonds Case , who was imprisoned by the Court of Aldermen for the same cause , and it came judicially in question ; and he said , that upon solemn debate it was resolved , that he should be remanded ; wherefore he concluded that the commitment being by a Court of Record , and that for a contempt against the Court , and that for not observing of the customs of the City which is against the Oath of a freeman , and which are confirmed by Act of Parliament , that the commitment is good and lawful , and therefore prayed that the prisoner might be remanded . And now this Term it was resolved by the Judges upon solemn debate , that the retorn notwithstanding any of the said exceptions was sufficient . Justice Mallet : the Retorn is sufficient in matter and form , but for the matter of it , I shall not ground my self upon the custom , but upon part of the record , which is upon the contempt , for although I agree that Consuetudo loci is of great regard , yet I conceive it is not strong enough to take away the liberty of a freeman by imprisonment . Power to imprison the body of a freeman cannot be gained by prescription or grant ; and a grant is the ground of a prescription , and therefore if it be not good in a grant , not in a prescription : and I conceive that it is the Common Law only , or consent to an Act of Parliament , that shall subject the body of a freeman to imprisonment ; and it is resolved in the 5 Rep. 64. acc . in Clarkes Case , and agreed in 8 Rep. 127. That a constitution cannot be made by a Corporation , who have power to make by-Laws upon pain of imprisonment ; because it is against the Statute of Magna Charta ; wherefore I conceive the power to imprison the body of a freeman cannot be gained by custom : but although it cannot be gained by custom , yet Qui non transeunt per se , transeunt per aliud , it will pass as a thing incident to a Court of Record ; and therefore although I hold that the custom to imprison is not good , yet I hold that the imprisonment here by a Court of Record for a contempt made unto it , as appeareth by the Retorn here it was , is good ; for in the conclusion of the Retorn it saith , that he refused in contemptum Curiae , &c. And that it is incident to a Court of Record to imprison , 8 Rep. 38. b. it is there resolved , that for any contempt done to a Court of Record the Judges may impose a fine ; and 8 Rep. 59. b. It was resolved , that to every fine , imprisonment is incident . Further , I conceive , that by the same reason that a Court of Record may imprison for a fine , they may imprison for a contempt , and in 8 Rep. 60. it is said , that to imprison doth belong only to Courts of Record : but which is in the point , it is resolved , 119. b. in Doctor Bonhams Case , that it is incident to every Court of Record , to imprison for a contempt done to the Court : and he said , that if a Court of Record should not have such a coercive power , they should be in effect no Court. Wherefore he conceived that the refusing to take the Oath being a contempt , and that to a Court of Record , as it appeareth by the Retorn , that they may lawfully commit him for this contempt . For the objection that the debito modo electus , without shewing how , is too general : To that he answered , that it is only matter of inducement , and there is no necessity to shew all matter of inducement . For the objection that he had not notice of the election : To that he answered , that here is good notice , for by the Retorn it appeareth , that according to the custom after he was elected , he was called to the Court , and the Oath tendred to him , and he refused , which without doubt implies notice , & quod constat clare non debet verificare ; & as after appearance , all exceptions to process are taken away , as the Books of 9 E. 4. 18. & 12 H. 4. 17 , & 18. and many other Books are , so I say in this Case , after appearance , you shall never say that you had not notice , for by your appearance you admit it and the process good . For the Objection to the Oath , that it is not good , because it makes a man abjure his Trade , which is against Law and Reason : To that I answer , that the Aldermen are intrusted with the assize of Bread and Ale , and so with Wine and Fish , and therefore as it is unreasonable , so it is against the Law , that during his Office he should use the Trade of which he hath Jurisdiction and power to regulate , and to punish the misdemeanors of it ; and therefore it is enacted by the Statute of 12 E. 2. cap. 6. That no Officer of a City or Borough shall sell Wine or Victuals during his Office. It is true , that this Statute is repealed by the Statute of 3 H. 8. cap. 8. but there is a Proviso in the Statute that it extend not to London , so as the Statute of 12 E. 2. is in force still as unto London . Then the Oath makes him to abjure no more than the Law forbids him to do , and which to do by him were unlawful , wherefore that exception is not good . For the exception that the imprisonment is general ; to that I answer , that it is mistaken , for it is only until he take the Oath , and therefore the retorn is good notwithstanding that exception also : Now the end of imprisonment being obedience , and the party here not obeying but refusing to take the Oath , for which he is committed ; for my part , I conclude that he be remanded to prison . Justice Heath : that the Retorn is good in matter and form ; and I ground my self upon the custom , for I conceive that it is a good custom , because that the ground of it is good and reasonable , which is the Government of the City , for that totally depends upon the custom ; and I hold that the refusing to take the Oath only is no sufficient cause of imprisonment ; but as it is an introduction to the support of Government , by keeping of the customs and priviledges of the City , which every one by the Oath of a freeman is bound to keep ; and this custom is not against the Statute of Magna Charta , 9 H. 3. cap. 29. For that saith that no freeman shall be taken and imprisoned , &c. but per legem terrae : Now Consuetudo loci est lex terrae , for in the Statute of 52 H. 3. cap. 3. There the Law and custom of the Realm are joyned together as Synonyma , words of the same intent . For the Objection , That the custom is not that they who shall be chosen Aldermen , should be idonei & habiles , but it is only averred in the Retorn , that Langham here chosen to be Alderman is idoneus & habilis : to that I say , that we are to judge upon the Retorn as it is before us , and if upon the whole matter there appeareth sufficient matter for us to adjudge the commitment lawful , be it true or false we ought to judge according to it ; and if the Retorn be false , you have your remedy by way of Action upon the Case ; and in this Case it is expresly averred that the party chosen is idoneus & habilis , and it lies not in your power or in ours to gain say it , wherefore I conceive that exception worth nothing . I agree that the Statute doth not confirm ill and unreasonable customs , but here I say ( as before ) that this custom hath a good and lawful foundation , and therefore it may be well confirmed ; and the Oath although it be in general Terms , yet it ought to be taken , that he do keep and observe such reasonable and lawful Priviledges and no other . For the notice , I say , that it is manifest , that he had notice ; which he conceived would be good evidence to a Jury , and that upon such evidence they would find for the Plaintiff ; and for the debito modo electus , he conceived it is good enough , because that in the Retorn upon a Habeas corpús such precise certainty is not required as in pleading : and for the imprisonment it is not in general , and so may happen to be perpetual , as was objected ; but it is until he take the Oath , wherefore upon the whole matter I conceive the retorn is sufficient , and that the prisoner ought to be remanded . Bramston Chief Justice : the custom is good , and none of the exceptions to the Retorn good , and therefore the prisoner ought to be remanded . The Question upon the custom is only whether this custom , as it is here set forth by the retorn , to imprison the body of a freeman be good or not ; and as I have said before , I hold it to be a good custom , and that upon this difference , that a custom generally to imprison the body of a freeman is not a good custom . But a custom ( as it is here ) for a Court of Record to imprison the body of a man who is chosen a great Officer for refusing to take the office upon him without which the Government cannot subsist , is a good custom : Besides , here being a contempt refusing to take the Oath , the Court may imprison the body for it , without any custom to help it , for it is incident to a Court of Record to imprison . I agree the Case which was objected by Master Sollicitor of 21 E. 1. where the custom of Cambridge is , that the Vice-chancellor may imprison a Scholar taken in a suspitious place , that is no good custom , for it no way concerns the supportation of Government or the Commonwealth , and they may punish him another way , which may be good and as effectual as imprisonment : but not so in our Case , for if in this time in which there are many Aldermen wanting , all should be fined , what will become of the Government ? Further , I agree that the custom to imprison for forein buying and selling is no good custom ; upon the difference before taken : all great Officers have a proper Oath belonging to them , which is very needful for the greater ingagement of men in the due execution of their Offices , which so much concerns the Publike ; and if they refuse to take it , they are punishable for it ; and this place in which Master Langham is chosen Alderman is the most great place of Government in the Realm , and of greatest consequence to the whole Kingdom , and therefore if it should not be supplied with Aldermen , who is it who doth not see the great inconvenience which would follow ? and therefore I hold that the custom to imprison until he take the Oath , and so by consequence the Office upon him ( for refusing of the Oath is refusing of the Office ) is a good custom ; now for the Oath , it is the usual Oath which hath been taken time out of mind , &c. And it is reasonable and well penned . For the Objection that it is unreasonable , because it makes a man to abjure his Trade : To that I answer , that it is reasonable , and makes him abjure no more than the Law forbids him to do , for it is not reasonable that he who hath the Jurisdiction of assise of Bread and Ale , Wine and Fish , that he during his Office should sell those things by retail . Now that the Mayor and Aldermen of London have this Jurisdiction , see the Statute of 31 E. cap. 3. 10. for Fish ; the Statute of 23 H. 8. cap. 4. for Ale and Beer ; and 28 H. 8. cap. 14. for Wine , where in these Cases power is given to all Head-Officers of Cities , Burroughs and Towns-corporate to punish the Offenders against the rates and Assises of the things aforesaid : and by the Statute of 12 E. 2. cap. 6. it is expresly ordained , that no Officer of a City or Burrough should sell Wine or Victuals during his Office. I confess this Statute is repealed by the Statute of 3 H. 8. but yet there is a Provision in that Statute that it extend not to London : then the Law being that none of those things shall be sold by any Officer by retail during his Office ; the Oath which makes a man to abjure that which the Law forbids , of necessity ought to be taken as lawful : besides , there is a Writ grounded upon the Statute of 12 E. 2. which you shall find in the Register 184. a. & Fitz. N. B. 173. b. that the party grieved might have directed to the Justices of assises , commanding them to send for the parties , and to do right , &c. Wherefore I hold the Oath good and lawful notwithstanding this Objection . For the point of notice , I conceive it is not needful , and if it be , I ask who it is ought to give notice in this Case , and I say that no person is tied to do it , wherefore he ought to take notice of it at his peril . For the debito modo electus , I say that it is good , being in a Retorn upon a Habeas corpus , & it is said , that it was secundum consuetudinem , which includes all things needful for the objection . That it is averred in the retorn that he was idoneus & habilis , but that it is no part of the custom that it should be so , for it is only in general , Si aliquis liber homo , and doth not say habilis & idoneus , and therefore the custom should not be good : I answer , that it is averred in the Retorn , that it is so , that he is elected , and that is sufficient for us to ground our Judgment : but further , I conceive that the debito modo helps it , wherefore upon the whole matter I conclude that the custom is good , and the Retorn sufficient , and therefore that the prisoner be remanded . Pasch. 18º Car ' in the Common Pleas. Barrow against Wood in Debt . 238. IN Debt upon an Obligation brought by Barrow against Wood , the Defendant , demanded Oyer of the condition , & ei legitur , &c. and the effect of it was this , That the Defendant should not keep a Mercers-shop in the Town of Tewkesbury ; and if he did , that then within three moneths he should pay forty pound to the Plaintiff : upon which the Defendant did demur in Law , and the point is only whether the condition be good or not . Serjeant Evers : the condition is good , because it is no total restraint , for it is a restraint here only to Tewkesbury , and not to any other place , wherefore I conceive the condition good . I agree the Case in 11 Rep. 53. b. where a man binds himself not to use his Trade for two years , or if a husbandman be bound he shall not plough his Land , these are conditions against Law , because where the restraint is total , although it be temporal , there the condition is not good ; but the condition is not totally restrictive in our Case : and he compared this Case to the Case in 7 H. 6. 43. feoffee with warranty ; Proviso , that the feoffee shall not vouch it is a good condition , because not totally restrictive ; for although that the feoffee cannot vouch , yet he may rebut : so in this Case , although the Obligor cannot use his Trade in Tewkesbury , yet he may use it in any other place . And the Condition is not against Law ; for if it were such a condition , then I agree it would be naught ; but yet the Bond would stand good , for this is not a condition to do an act which is Malum in se , for there the condition is naught & the Bond also , as 2 E. 4. 2. b. by Cooke & Instit. 206. b. But although a man cannot make a feoffm●●t upon condition that the feoffee shall not alien , yet the feoffee may bind himself that he will not alien , and the Bond is good ; and so I say in our Case , and if the condition in this Case should not be good , it would be very inconvenient ; for it is a usual thing in a Town in the Country , for a man to buy the shop of another man & all his Wares in it , and if ( the same being a small town , where one of that profession would serve for the whole Town ) he who bought the shop and wares should not have the power to restrain him ( the same being the ground & reason of the contract ) from using of that trade in that pla●e , it would be very inconvenient , wherefore he conceived that the condition was good , and prayed Judgment for the Plaintiff . Serjeant Clarke for the Defendant , that the condition is not good , for it is against the Law , and void , because it takes away the livelihood of a man , & that is one of the reasons against Monopolies , 11 Rep. 86 , & 87. And that I conceive is grounded upon the Law of God , for in Deut. chap. 24. ver . 6. it is said , that you shall not take in pledge the nether and upper milstone , for that is his life . So that by the Law of God the restraining of any man from his Trade which is his livelihood is not lawful . And surely , our Law ought not to be against the Law of God ; and that is the reason , as I conceive , wherefore by our Law the Utensils of a mans Profession cannot be distreined , because by that means the means of his livelihood should be taken away . And 2 H. 5. fol. 5. b. by Hull , the condition is against Law , and yet the case there is the very Case with our case , for there a man was bound , that he should not use his Art in D. for two years ; whereupon Hull swore by God , that if the Obligee were present he should go to prison till he had paid a fine to the King , because the Bond is against Law , and therewith agrees the 11 Rep. 53. b. & 7 E. 3. 65. A Farmer covenants not to sow his land ; the covenant is void : so as I conceive that although the condition be restrictive only to one place , or for a time , yet because it takes away the livelihood of a man for the time , the condition is against Law , and void ; and he cited a Case in the point against Clegat and Batcheller , Mich. 44 Eliz. in this Court , Rot. 3715. where the condition of a Bond was , That he should not use his Trade in such a place ; and it was adjudged that the condition was against Law , and therefore the Bond void ; and for these reasons he prayed that Judgment might be entred , that the Plaintiff nihil capiat per billam . Justice Reeve did produce some Presidents in the point ; and he said that the Law as it had been adjudged , stood upon this difference betwixt a contract , or Assumpfit , and an Obligation : A man may contract or promise that he will not use his Trade , but he cannot bind himself in a Bond not to do it ; for if he do so it is void . And for that he cited Clegat and Batchellers Case before , that the obligation in such Case is void ; and he said , that the reason which was given by one , why the Bond should be void , was grounded upon the Statute of Magna Charta , cap. 29. which wills , That no freeman should be ousted of his Liberties but per legem terrae ; and he said , that the word Liberties did extend to Trades ; and Reeve said , that by the same reason you may restrain a man from using his Trade for a time , you may restrain him for ever . And he said , that he was confident that you shall never find one Report against the Opinion of Hull , 2 H. 5. For the other part of the difference , he cited Hill. 17 Iac. in this Court , Rot. 1265. and 19 Iac. in the Kings Bench Braggs case ; in which Cases he said , it was adjudged against the Action upon a Bond , but with the Action of the Case upon a promise that it would lie . But note , that all the Judges , viz. Foster , Reeve and Crawley ( Bankes being absent ) held clearly , that if the condition be against the Law , that all is void , and not the condition only as was objected by Evers , and it was adjorned . Apsly against Boys in the Common Pleas in a Scire facias , to execute a Fine upon a Grant and Render , Intrat Trin. 16 Car. Rot. 112. 239. THe Case upon the Pleading was this : A fine upon a Grant and Render was levied in the time of E. 4. upon which afterwards a Scire facias was brought , and Judgment given , and a Writ of seisin awarded but not executed . Afterwards a fine Sur co●usans de droit come ceo , &c. with Proclamations was levied , and five years passed , and now another Scire facias is brought to execute the first fine , to which the fine Sur conusance de droit come ceo is pleaded ; so as the only Question is , Whether the fine with Proclamations shall bar the Scire facias or not . Serjeant Gotbold for the Plaintiff , it shall not bar ; and his first reason was , because not executed , 1 Rep. 96 , 97. and 8 Rep. 100. If a disseisor at the Common Law before the Statute of Non-claim , had levied a fine , or suffered Judgment in a Writ of Right until Execution sued , they were no bars , and a fine at Common Law was of the same force as it is now , and if in those Cases no bar at Common Law until Execution , that proves that this interest by the fine upon grant and render is not such an interest as can bar another fine , before execution . Besides , this Judgment by the Scire facias is a Judgment by Statute , and Judgment cannot be voided but by error or attaint . Further , a Scire facias is not an Action within the Statute of 4 H. 7. and therefore cannot be a bar , 41 E. 3. 13. & 43 E. 3. 13. Execution upon Scire feci retorned without another plea ; and it is not like to a Judgment ; for there the party may enter , but not here . Besides , it shall be no bar , because it is executory only , and in custodia legis , and that which is committed to the custody of the Law , the Law doth preserve it , as it is said in the 1 Rep. 134. b. and he compared it to the Cases there put , and a fine cannot fix upon a thing executory , and the estate ought to be turned to a right to be bound by a fine , as it is resolved in the 10 Rep. 96. a. & 9 Rep. 106. a. Com. 373. And the estate of him by the first fine upon grant and render is not turned to a right by the second fine . Lastly , the Statute of 4 H. 7. is a general Law , and in the affirmative , and therefore shall not take away the Statute of West . 2. which gives the Scire facias , and in proof of that he cited 39 H. 6. 3. 11 Rep. 63. & 68. and 33 H. 8. Dyer 15. I agree the Case which hath been adjudged , that a fine will bar a Writ of Error , but that is to reverse a Judgment which is executed , but here the Judgment is not executed , and therefore cannot be barred by the fine : wherefore he prayed Judgment for the Plaintiff . Note , that it was said by the Judges , that here is no avoiding of the fin● , but it shall stand in force , but yet notwithstanding it may be barred ; and they all said , that he who hath Judgment upon the Scire facias upon the first fine might have entred ; and they strongly inclined , that the Scire facias is barred by the fine , and doth not differ from the Case of a Writ of Error ; but they delivered no opinion . Taylers Case . 240. THe Case was thus ▪ The Issue in Tail brought a Formedon in Descend . and the Defendant pleaded in Bar , and confessed the Estate Tail ; but said , that before the death of the Tenant in Tail I. S. was seised in fee of the lands in question , and levied a fine to him , and five years passed , and then Tenant in Tail died ; & whether this plea be a bar to the Plaintiff or not was the Question ; and it rested upon this , Whether I. S. upon this general Plea shall be intended to be in by disseisin or by feoffment ; for if in by disseisin , then he is barred , if by feoffment , not : and the opinion of the whole Court was clear without any debate , that he shall be intended in by disseisin , and so the Plaintiff is Bar , as the Books are , 3 Rep. 87. a. Plow . Com. Stowels Case , and Bankes Chief Justice said , that it shall not be intended that Tenant in Tail had made a feoffment to bar his issues unless it be shewed , and it lies on the other part to shew it ; and a feoffment is as well an unlawful Act as a diss●isin , for it is a discontinuance . Commins against Massam in a Certiorare to remove the proceedings of the Commissioners of Sewers . 241. THe Case upon the proceedings was thus : Lessee for years of Lands within a level , subject to be drowned by the Sea , covenanted to pay all assessments , charges and taxes , towards or concerning the reparation of the premisses : A wall which was in defence of this level and built straight , by a sudden and inevitable Tempest was thrown down ; one within the level subject to be drowned , did disburse all the mony for the building of a new wall ; and by the order of the Commissioners a new wall was built in the form of a Horshooe ; afterwards the Commissioners taxed every man within the level towards the repaying of the sum disbursed , one of which was the lessee for years , whom they also trusted for the collecting of all the mony ; and charge him totally for his land , not levying any thing upon him in the reversion , and also with all the damages , viz. use for the mony . Less●e for years died , the lease being within a short time of expiration , his executor enters , and they charge him with the whole ; and immediately after the years expired , & the executors brought this Certior are , upon which there was many questions . Justice Mallet : I conceive that the proceedings of the Commissioners are not lawfully removed into this Court , because as I conceive no Certiorare lies to remove their proceedings at this day , because that their proceedings are in English upon which I cannot judge , for all our proceedings ought to be in Latine . Besides , I cannot judge upon any Case if it be not before us by special verdict , demurrer , or writ of Error , and it is not here in this Case by any of those ways ; and if it be here by Certiorare , yet we are not enabled to judge as this Case is ; for the conclusion of the writ is , Quod faciamus quod de jure & secundum legem , &c. fucrit faciend . And as I have said before , we cannot judge upon English proceedings , and they have power to proceed in English by the Statute of 23 H. 8. cap. 5. by which Statute they have a kind of Legislative power given , for it doth not reserve any power to us , to redress their proceedings ; and as I conceive no writ of error lieth at this day to correct their proceedings , because that they are in English ; and if they have Jurisdiction and proceed according to it , we have no power to correct them ; because that the Statute leaves them at large to proceed according to their discretions . But where they have no Jurisdictio● , there we may correct them . True it is , that before the Statute of 23 H. 8. there are many Presidents of Certioraries to remove the proceedings of the Commissioners of Sewers into this Court , for then their proceedings were in Latin , but I do not find any since the Statute : wherefore I conclude that no Certiorare will lie in this Case , and then the proceedings not being lawfully removed I cannot judge upon them , wherefore I speak nothing to the matter in Law contained in the proceedings of the Commissioners . Heath : I conceive notwithstanding any thing alledged by my brother Mallet that this Court is well possessed of the Cause , and may well determine it : the Question here was no● , whether the Cause be well removed , but whether the Commissioners have well proceeded as this Case is , or not ; I hold that the cause is well removed by the Certiorare ; there is no Court whatsoever but is to be corrected by this Court : I agree that after the Statute no Writ of Error lieth upon their proceedings , but that proves not that a Certiorare lies not , they are enabled by the Statute to proceed according to their discretions , & therefore if they proceed secundum aequu● & bonum , we cannot correct them ; but if they proceed 〈◊〉 they have no Jurisdiction , or without Commission , or contrary to their Commission , or not by Jury , then they are to be corrected here : if a Court of Equity proceed where they ought not , we grant a Prohibition . Without question in trespass or Replevin their proceedings are examinable here ; and I see no reason but upon the same ground in a Certiorare they cannot make a decree of things meerly collateral , or concerning other persons ; here they have certified their Commission , and that the assessment was by a Jury of twelve men , but if they had certified that it was per sacrament . Iuratorum generally without saying twelve men , it had not been good , as it was by us lately adjudged , because that for any thing appears to the contrary it might be by two or three only , where it ought to be by twelve ; and I conceived they have well done here in laying all upon the lessee for years : by the Law of Sewers , all which may be endamaged ; or have benefit , are chargeable , and it is in their discretion so to do . But in this case they may charge the lessee or lessor ( if not for the special covenant of the lessee ) at their discretions , for the Statute saith owners or occupiers ; & I conceive that the covenant here doth bind the lessee , for it is presumed that he hath considerable benefit for it , and the Commissioners may take notice of it . But if the covenant doth not bind the lessee , yet I for my part will not reverse their decree for that , because that where they have Jurisdiction they may proceed according to their discretions , and he covenanted to pay all taxes concerning the premisses , and here it concerns the premisses although the wall be in a new form : and it was objected , that it is now fallen upon an executor , which is hard ; which is not so because the testator was chargeable , and here the executor occupies although it be but for a short time , and he was an occupier at the time of the decree , and therefore it is reason that he should be charged . But it was further objected that he hath not assets ; I answer , that was not alledged before the Commissioners ; and if an Action be brought against executors at the Common Law , and they plead , and take not advantage of not having assets , it is their own fault , and therefore shall be charged : so here . But it was further objected , that the Commissioners have not Jurisdiction of damages , viz. with the interest of the mony . But I hold clearly otherwise , that they having Jurisdiction of the principal , shall have Jurisdiction of the damages ; wherefore I conclude that the Commissioners have well done , and that their decree is good . Bramston Chief Justice : in this Case there are five points . First , whether the covenant shall extend to this new wall or not . Secondly , whether this collateral covenant be within their Jurisdiction or not . Thirdly , whether their power do extend to an executor or not . Fourthly , whether they have Jurisdiction of damages or not . And lastly , whether their proceedings be lawfully removed by this Certiorare or not : for the latter I hold that their proceedings are lawfully removed , and that the Certiorare lieth at this day to remove their proceedings ; but I confess , if I had thought of it , I would not have granted it so easily , but it was not made any scruple at the Bar , nor any thing said to it , and hereafter I shall be very tender in granting of them . True it is , before the Statute of 23 H. 8. they were common , but there are few to be found after the Statute , and we ought to judge here as they ought to judge there , and we cannot determine any thing upon English proceedings , and at first I put that doubt to the Clerks of the Court , Whether if we confirm their decree , we ought to remand it , or whether we ought to execute it by Estreat into the Exchequer or not , and they could not resolve me , wherefore I much doubted whether we might proceed to question their decree upon this Certiorare or not . But because I was informed that the parties by agreement have made this case as it is here before us upon the Certiorare and have bound themselves voluntarily in a recognisance to stand to the Judgment of the Court upon the proceedings as they were removed upon the Certiorare by the agreement of the parties , therefore I did not stick upon the , Certiorare , because what was done was by consent , & consensus tollit errorem , if any be . Now for the points as they arise upon the proceedings of the Commissioners ▪ and for the first , I hold that the covenant doth well extend to this new wall ; and the making of it in the form of a horshooe is not material , so as it be adjoyning to the land as it here was , for that may be ordered according to their discretions : it is a rule in Law , that the covenant of every man ought to be construed very strong against himself ; and although that in this Case the new wall be not parcel of the premisses , as it was at the time of the covenant ; because that the wall then in esse and to which the covenant did extend was a straight wall , yet according to the words of the covenant , this tax is towards the reparation of the premisses , and if it should not extend to this new wall , the covenant should be idle and vain ; and clearly , the meaning of the parties was , that it should extend to all new walls . For the second point , I hold the covenant , although it be a collateral thing , within their Jurisdiction : true it is , as it is said in 28 H. 8. that contracts are as private Laws betwixt party and party : but you ought to know that their Commission gives them power to charge every man according to his tenure , portion , and profit ; and he who is bound by custom or prescription to repair such walls is not within the words of their Commission ; yet it is resolved in the 10 Rep. 139 , 140. in Kighleys case that the Commissioners may take notice of it , and charge him only for the reparations , where there is default in him and the danger not inevitable ; and by the same reason you may exclude this covenant to be out of their Jurisdiction , you may exclude prescription also . I agree that where the covenant is meerly collateral , as if a man who is a stranger covenants to pay charges for repairing of such a wall , that that is not within their Jurisdiction , because he is a meer stranger , and cannot be within their Commission ; but in our Case it is otherwise , for the covenantor is occupier of the land , and it hath been adjudged , that if lands or chattels are given for the reparation of a Sea-wall , that it is within their Jurisdiction , and they may meddle with it , & that is as collateral as the covenant in question , wherefore I hold that the covenant is within their Jurisdiction . For the third point , I hold that they may well charge the executor , for the executor here hath the lease as executor : but it was objected , That the term is now determined , and peradventure the executor hath not assets ; To that I answer , that it is admitted that he hath assets , for the Commissioners cannot know whether he hath assets or not , and therefore he ought to have alledged the same before the Commissioners , and because he hath not done it he hath lost that advantage , and it shall be intended that he hath assets by not gain-saying of it . Fourthly , for the damages , I first chiefly doubted of that , but now I hold that it is within their Jurisdiction : Put case that one in extreme necessity , as in this Case , disburse all the money for the reparations or the wall , or Sea-bank , if the Case had gone no further clearly , he shall be repaid by the tax and levy after ; and I conceive by the same reason they have power to allow him damages and use for his mony ; for if it should not be so , it would be very inconvenient , for who would after disburse all the money to help that imminent danger and necessity if he should not be allowed use for his money ? and the Lessee here is only charged with the damages for the money collected which he had in his hands , and converted to his own use , and therefore it is reasonable that he should be charged with all the damages . Besides , they having conusans of the principal , have conusans of the accessory as in this Case of the damages , and he urged Fitz. 113. a. to prove that before the Statute of 23 H. 8. they had a Court , and were called Justices : but he held as it was agreed before , That no Writ of Error lieth after this Statute , but yet he said that the party grieved should be at no loss thereby ; for he said , that where the party cannot have a Writ of Error , nor Audita querela , there he shall be admitted to plead , as in 11 H. 7. 10. a. Where a Recognisance of debt passed for the King upon issue tried , and afterwards the King pardons it , the party after Judgment may plead it , because Audita querela doth not lie against the King , and where a man is not party to a Judgment , there he cannot have a Writ of Error , but there he may falsifie , so I conceive that he may in this Case , because he cannot have a Writ of Error ; and I conceive as it hath been said before , that after the Statute of 23 H. 8. the Commissioners of Sewers have a mixt Jurisdiction of Law and equity . For the Certiorare I will advise hereafter how I grant it , although I conceive ( as I have said before ) that a Certiorare lies after the Statute , and is not taken away by the Statute , and I conceive in some clearness that it may be granted where any fine is imposed upon any man by Commissioner , which they have authority to do by their Commission ; as appeareth by the Statute to moderate it in Case that it be excessive . But as I have said before , because that the parties by agreement voluntarily bound themselves by Recognisance to stand to the judgment of this Court upon the proceedings as they are certified , that made me at this time not to stand upon the Certiorare , wherefore I do confirm the decree . 242. Rolls moved this Case : A. did suffer B. to leave a trunk in his house , Whether B. might take it away without the special leave of A. was the Question . Justice Mallet , leave is intended ; but Rolls conceived that he could not take it without leave . Hammon against Roll , Pasch. 18. Car. in the Common Pleas. 243. IN an Action upon the Case upon Assumpsit , the Case upon special verdict was this : A. and B. were bound joyntly and severally in a Bond to C. who released to A. afterwards there being a communication betwixt B. and C. concerning the said debt , B. in consideration that C. would forbear him the payment of the said mony due and payable upon the said Bond till such a day promised to pay it , &c. C. for default of payment at the said day , brought this Action upon the Case . B. pleaded the general issue , and thereupon the whole matter before was found by the Jury . Serjeant Clarke : here is not any good consideration whereupon to ground an Assumpsit , because by the release to one obligor the other is discharged ; and then there being no debt , there can be no consideration , and therefore the promise void , because it is but nudum pactum . Rolls contrary , that there is a good consideration ; because that although by the release to one obligor , the debt of the other be discharged sub modo , viz. if the other can get it in his power to plead , yet it is no absolute discharge ; for if he cannot get it into his hand to plead it , he shall never take advantage of it , and then if it be no absolute discharge , but only sub modo , viz. if he can procure it into his hand to plead , then the consideration is good , for perhaps he shall never get it . Justice Foster asked him if by this release the debt be not intirely discharged : to which he answered , No , as to B. only , but sub modo as I have said before ; but he said , and with him agreed the whole Court , that the Law is clearly otherwise that the debt is intirely gone and discharged ; and then clearly there can be no consideration in this Case . Justice Reeve : every promise ought to have a consideration , and that ought to be either benefit to him that makes it , or disadvantage to him to whom it is made , and in this Case the consideration which is the ground of the Assumpsit is neither benefit to him that made it , nor disadvantage to hi● to whom it was made , because there was no debt ; for it was totally discharged by the release made to A. Crawley agreed to it ; Bankes Chief Justice was absent . But because the obligation was laid to be made in London ; and no Ward or Parish certain put from whence the Visne should come , they conceived clearly that it was not good . Pasch. 18º Car. in the Kings Bench. Heamans Habeas Corpus . 144. RIchard Heaman was imprisoned by the Court of Admiralty , upon which he prayed a Habeas corpus , and it was granted , upon which was this retorn , viz. First the custom of the Admiralty is set forth , which is to attach goods in causa civili & maritimi , in the hands of a third person ▪ and that upon four defaults made , the goods so attached should be delivered to the Plaintiff upon caution put to restore them if the debt or other cause of Action be disproved within the year , and after four defaults made if the party in whose hands the goods were attached , refused to deliver them , that the custom is to imprison him until , &c. Then is set forth how that one Kent was indebted unto I. S. in such a sum upon agreement made Super altum mare , and that Kent died , and that afterwards I. S. attached certain goods of Kents in the hands of the said Heaman for the said debt , and that after upon summons four defaults were made , and that I. S. did tender caution for the re-delivery of the goods so attached and condemned , if the debt were disproved within the year ; and that notwithstanding the said Heaman would not deliver the goods , for which he was imprisoned by the Court of Admiralty until , &c. Widdrington of Counsel with the prisoner , took this exception to the Retorn , that it appeareth by the Retorn that Kent who was the debtor was dead before the attachment , and you shall never attach the goods of any man as his goods after his death , because they are not his goods , but the goods of the executor in the right of the testator . Besides , although the attachment be upon the goods , yet the Action ought to be against the person , which cannot be he being dead , wherefore he prayed that the prisoner might be discharged . Hales ; that the attachment is well made , notwithstanding that the party was dead at the time of attachment , for it is the custom of their Court so to proceed , although that the party be dead . Besides , he said that although that the party were dead , yet the goods are bona defuncti , and to prove that he cited 10 E. 4. 1. the opinion of Danby and Catesby . That the grant of Omnia bona & catalla sua by an executor will not pass the goods which he hath as executor , because they are the goods of the dead . But note , that it was here said by Bramston Chief Justice , that it had been adjudged divers times against the opinion aforesaid , that it passeth the goods which the executor hath as executor : and he said , that if a man hath a judgment against an executor to recover goods , the Judgment shall be that he recover bona defuncti . To that the Court said , that the Judgment is not quod recuperet bona defuncti , but quod recuperet the goods which fuerunt bona defuncti . For the objection , that the plaint ought to be against the person , which cannot be when he is dead , to that Hales said , that in the Admiralty the Action is against the goods , and therefore the death of the person is not material ; to that Justice Heath said , that it is the party who is charged , the goods are only chargeable in respect of the person , and you shall never charge the goods alone , but there ought to be a party to answer . Hales : if they have Jurisdiction , they may proceed according to their Law , and we cannot hinder it : to which Heath said , take heed of that , when it concerneth the liberty of the Subject , as in this Case . And note , that Bramston Chief Justice asked the Proctor of the Admiralty then present this Question , Whether by their Law the death of the party did not abate the action ; and he said that it did ; then said the Chief Justice , it is clear that an attachment cannot be against the goods the party being dead ; wherefore by the whole Court the custom to attach goods after the death of the party is no good custom ; and therefore they g●ve Judgment that the prisoner should be discharged . 245. Note , that Bramston Chief Justice and Heath Justice said in evidence to a Jury , that a Will without a Seal is good to pass the Land , and that it is a Forgery expresly by the Statute of 5 Eliz. cap. 14. to forge a Will in writing . Pasch. 18º Car ' in the Kings Bench. Fulham against Fulham in a Replevin . 246. THe Case was thus : Henry the 8 seised of a Mannor in which are Copyholds , grants a Copy-hold for life generally , and whether this be a destroying of the Copyhold or not , was the Question . And it was argued by Harris that the grant was utterly void , because the King was deceived in his grant , for he said , the King had election to grant it by Copy , and therefore it shall not be destroyed by a general grant without notice , and cited many Cases to prove that where the King is deceived in the Law , his Grant shall be void ; but Bramston Chief Justice and the Court said , that it never recited in any of the Grants of the King what is Copyhold , and they were clear of Opinion that the Grant was not void . But whether it destroy the Copyhold or not , so as the King hath not election to grant the same after by Copy , that they agreed might be a Question . Serjeant Rolls at another day argued that the Copyhold was destroyed by the Kings grant , but he agreed that it is not reason that the Patent should be utterly void , for that he said would overturn all the Kings grants , for there is not any Patent that ever recited Copyhold , and therefore the Question is , whether the Copyhold be destroyed or not , and he argued that it is , because there needeth not auy recital of Copy-hold , Br. Pat. 93. It is agreed that where the King grants Land which is in lease for term of years of one who was attainted , or of an Abby or the like , that the grant is good without recital of the lease of him who was attainted , &c. For he shall not recite any lease but leases of Record , and therewith agreeth 1 Rep. 45. a. and Dyer , fol. 233. pl. 10 , & 11. Now he said there is no Record of these Copyholds , and therefore there needs not any recital of them , and therefore the King is not deceived . Further he said , that no man is bounden to inform the King in this Case , and therefore the King ought to take notice , and then the reason of the Case of a common person comes to the Kings Case , because the Copyhold was not demiseable for time as before , according to the nature of a Copyhold , and therefore of necessity is destroyed , and the Court as I said before , did conceive the Case questionable . Burwell against Harwell in a Replevin . 247. THe Case was shortly thus : A man acknowledged a Statute , and afterwards granted a Rent-charge : the land is extended , the Statute is afterwards satisfied by ●ffluxion of time , and the grantee of the rent did distrain ; and whether he might without bringing a Scire facias , was the Question . And the Case was several times debated at the Bar , and now upon solemn debate by the Judges at the Bench , resolved . But first , there was an exception taken to the pleading , which was , that the avowant saith , that the Plaintiff took the profits from such a time to such a time , by which he was satisfied , that was said to be a plea only by argument , and not an express averment , and therefore was no good matter of issue , and of this opinion was Justice Heath in his argument : but Bramston Chief Justice , that it is a good positive plea , and the Plaintiff might have ●ravers●d without that , that he was satisfied modo & forma , and in Plowd . Comment . in Buckley and Rice Thomas 〈…〉 , ut , cum , tam , quam , are good issues . Now for the point in Law , Justice Mallet was for the Avowant , that the distress was lawful , the grantee of the Rent cannot have a Scire facias , because he is a stranger , and a stranger cannot have a Scire facias , either to account , or have the land back again . The Cases which were objected by my Brother Rolls , viz. 32 E. 3. tit . Scire facias 101. Br. Scire facias 84. & Fitz. Scire facias 134. That the feoffee shall have a Scire facias , do not come to our Case , for here the grantee of the Rent is a stranger not only to the Record but to the Land , which the feoffee is not . Further , it was objected , that the Grantee of the Rent claims under the conusor , and therefore shall not be in a better condition than the Conusor ; there are divers Cases where grantee of a rent shall be in better condition than the Conusor ; the Lord Mountjoyes Case : a man makes a lease for years rendring rent , and afterwards acknowledgeth a Statute , and afterwards grants over the rent , now it is not extendable . Besides , it was objected , that if this should be suffered it would weaken the assurance of the Statute and disturb it : I agree that may be , but if there be not any fraud nor collusion , it is not material , and then he being a stranger , if he cannot have a Scire facias , he may distrain : it is a Rule in Law , Quod remedio distituitur ipsa re valet , si culpa absit ▪ 21 H. 7. 33. Where there is no Action to avoid a Record , there it may be avoided by averment , &c. 18 E. 4. 9. & 5 Rep. 110. 32 Eliz. Syers Case ; a man indicted of felony done the first day of May , where it was not done that day , he cannot have an averment against it , but his feoffee may . 12 H. 7. 18. The King grants my land unto another by Patent , I have no remedy by Scire facias . 19 E. 3. Br. Fauxifer of recovery . 57. F. N. B. 211. 20 E. 3. 6. 9 E. 4. 38. a. A man grants a rent , and afterwards suffers a recovery , the grantee shall not falsifie the recovery because he is a stranger to the recovery , but he may distrain , which is the same Case in effect with our Case : for which cause I conceive that the distress is good , and that the Replevin doth not lie . Justice Heath : the distress is unlawful , for he ought to have a Scire facias , clearly the conusor ought to bring a Scire facias , See the Statute of 13 E. 1. Fulwoods Case , 4 Rep. 2 R. 3. & 15 H. 7. and the reason why a Scire facias is granted , is , because that when a possession is setled , it ought to be legally evicted . Besides , it doth not appear in this Case when the time expired : besides , costs are to be allowed in a Statute as Fulwoods Case is , and ●he same ought to be judged by the Court and not by a Jury , which is a reason which sticks with me , see the Statute of 11 H. 6. it is objected that the Grantee of the rent cannot have a Scire facias , it will be agreed that the conusor himself cannot enter without a Scire facias , and I conceive à fortiori not the Grantee of the Rent . I do not say here there is fraud , but great inconvenience and mischief if arrerages incurred for a great time ( as in this Case it was ) shall be all levied upon the conusee , for any small disagreement , as for a shilling , without any notice given to him by Scire facias , and he should be so ousted and could not hold over . I hold that of necessity there ought to be a Scire facias , and he ought to provide with the Grantor to have a Scire facias in some fit time , but I hold that the Grantee here may well have a Scire facias . I agree the Cases where it is to avoid a Record , there ought to be privity , as the Books are , but here h● doth not avoid the Record , but allows it , for the Scire facias ought to be only to account , 38 E. 3. The second conusee of a Statute shall have a Scire facias against the first conusee , and I conceive that by the same reason the Grantee of the rent here shall have it , and in that Case there is no privity betwixt the first conusee and the second conusee ; for which cause he did conclude that the distress was unlawful , and that the Reple●in would well lie . Bramston Chief Justice for the Avowant , that 〈◊〉 may well distr●in , and cannot have a Scire facias , but if he may have a Scire facias , yet he may distrein without it . There is no authority in the Law directly in the point in this Case : I agree that if there be any prejudice to the conusee , there it is reason to have a Scir● facias . It was objected , that it is a constant course to have a Scire facias in this Case . But I believe you will never find a Scire facias brought by the Grantee of a rent , or other profit apprender . Besides , the best way to judge this Case is to examine what the Scire facias is which ought to be brought , and what the Judgment is which is given upon it , whether he may recover the thing in demand or not , vid. 32 E. 3. Fitz. Scire facias 101. & 47 E. 3. 11. which are brought to have account , and to shew cause wherefore he should not have the land : see Fitz. Scire facias 43. v. The old Entries , the Judgment which is given thereupon , and the demand there is quod tenement . praed . redeliberatur , and may the grantee in this Case have the land and thing in demand ? certainly not ; and that gives sufficient answer to the Cases objected by my Brother Heath , where the second conusee shall have a Scire facias against the first . Besides , you shall never find in all our Books that a man shall have an attaint or a writ of error , but he who may be restored to the thing lost by the judgment or verdict , 2 R. 3. 21 Dyer . 89. 9 Rep. the Lord Sanchars Case ; so in debt and erroneous Judgment upon it , wherewith agreeth Doctor Druries Case , 8 Rep. 12. & 18 E. 3. 24. the feoffee shall have a Writ of Error , because he shall have the land , and see 32 E. 3. Scire facias 101. And the grantee shall not have a Writ of Error in this Case upon erroneous Judgment , and for the same reason he shall not have a Scire facias , and the grantee cannot have a Scire facias for want of privity , and therefore I conclude that he cannot have a Scire facias , for if he might , certainly it would have been brought before this time , either for this cause , or for some other profit apprender . It was objected that he shall not be in better condition than the conusor , that is regularly true as to the right , but he may have another remedy . It was objected that the reason why that a Statute without a Scire fatias shall not be defeated is , because he is in by Record , and therefore shall not be defeated without Record , but that is not the true reason , but the reason is , because the conusee ought to have costs and damages , besides his debt , as is Fullwoods Case 4 Rep and 15 H. 7. 16. is , that the Chancellor shall judge of the costs and damages . But 47 E. 3. 10. & 46 E ▪ 3. Scire facias 132. by all the Judges that they lie in averment . But here an inconvenience was objected , that great arrerages should be put upon the conusee for a little mistaking ; to that he said , that of a small mistake the Court shall judge , and it shall not hurt him , but if he hold over being doubly satisfied , it is reason that he pay the ar●erages ; and he put this Case , A man acknowledgeth a Statute , and afterwards makes a lease to begin at a day to come , the l●ssee shall have a Scire facias ▪ for where remedy doth fail , the Law will help him ; for which cause he concluded , and gave Judgment for the avowant . Trin. 18 Car ' in the Kings Bench. Paulin against Forde . 248. AN Action upon the Case brought for words ; the words were these : Thou art a thievish Rogue , and hast stolen my wood , innuendo lignum , &c. Gardiner : the words are not actionable , because it shall be intended wood standing or growing , and not wood cut down , and so he said it had been adjudged ; so if a man says of another , that he hath stollen his Corn or Apples , the words are not actionable , because they shall be intended growing . Bramston Chief Justice , that the words are actionable , because that wood cannot otherwise be meant , but of wood cut down , because it is Arbor dum crescit , lignum dum crescere nescit , for which cause he conceived that the words were actionable ; and it was adjorned . Chambers and his wife against Ryley . 249. ACtion upon the Case for words , the words were these : Chambers his wife is a Bawd , and keeps a Bawdy-house : for which words the Action was brought , and the conclusion of the Plea is ad damnum ipsorum . Wright : the words are not actionable , because it is not the wife that keeps the house but the husband , and therefore the speaking the words of the wife cannot be any damage to him ; but admit the words were actionable , the husband only ought to bring the Action , because the speaking of the words is only to his damage . Bramston Chief Justice : the wife only is to be indicted for the keeping of a Bawdy-house , and therefore she only is damnified by the words , and the husband ought to joyn in the Action , but that is only for conformity , and the conclusion of the Plea is good , for the damage of the wife is the damage of the husband , and therefore ad damnum ipsorum good . And here it was agreed , that to say that a woman is a Bawd , will not bear an Action ; but to say , she keeps a Bawdy-house , will. Porter , who was for the Action cited a Case , which was thus . One said of the wife of another , that she had bewitched all his beasts ; and she and her husband joyned in an Action , and upon debate it was adjudged good ; and there the conclusion also of the plea was ad damnum ipsorum . Rickebies Case . 250. RIckebie was indicted in Durham for Murder , and afterwards the Indictment was removed into the Kings Bench , where he pleaded his Pardon ; which Pardon had these words in it , viz ▪ Homicidium feloniam , felonicam interfectionem , necem , &c. seu quocunque alio modo ad mortem devenerit . And note , there was a Non obstante in the Pardon of any Statute made to the contrary ; and whether these words in the Pardon were sufficient to pardon Murder or not , was the Question . Hales for the Prisoner said , that the Pardon was sufficient to pardon Murder , and in his argument first he considered whether Murder were pardonable by the King at the Common Law or not , and he argued that it was ; the King is interessed in the suit , and by the same reason he may pardon it . It is true , that it is Malum in se , and therefore will not admit of dispensation , nor can an appeal of Murder which is the suit of the Subject be discharged by the King but the King may pardon Murder although he cannot dispense with it : see Bracton lib. 3. cap. 14. And the Law of the J●ws differs from our Law ▪ & so the constitution of other Realms ; then the question is , Whether this Prerogative of the King to pardon murder be taken away by any Statute or not ; and first for the Statute of 2 E. 3 cap. 2. upon which all the other Statutes depend : that Statute made was only to prevent the frequencie of Pardons , but not totally to take away the Kings Prerogative , for the words of the Statute are , That offenders were incouraged because that Charters of Pardon were so easily granted in times past , &c. And the Statute of 13 R. 2. cap. 2. admits the Power and Prerogative of the King of pardoning Murder notwithstanding the former Statute ; for that Statute prescribes the form only ; and 13 R. 2. in the Parliament-Roll , Number 36. the King saith , Saving his Prerogative . The next thing considerable here is , admitting Murder pardonable by the King , Whether in this Pardon there be sufficient words to pardon murder or not , and he argued that there was ; and first for the word ( felony ) and he said , that by the Common Law pardon of felony is pardon of murder ; the Statute of 18 E. 3. cap. 2. inables Justices of Peace to hear and determine felonies ; and in 5 E. 6. Dyer 69. a. it is holden clearly that the Justices of Peace by virtue of that act have authority to inquire of murder , because it is felony ; and in Instit. 391. a. By the Law at this day under the word ( felony ) in Commissions , &c. is included Petit Treason , Murder , &c. Wherefore murder being felony , the pardon of felony is the pardon of murder . Further he said , that the pardon of manslaughter is a good pardon of murder ; for he said that murder and manslaughter are all one in substance , and differ only in circumstance , as the Book in Plowd . Comment . fol. 101. is , and if they were divers offences , then the Jury could not find a man indicted of murder guilty of manslaughter , as it was in the Case before cited . The last words are , & quocunque alio modo ad mortem devenerit , which extends to all deaths whatsoever ; and if it should not be so , the Statute of 13 R. 2. should be in vain . I agree the Books of 1 E. 3. 14 22 Ass. 49. & 21 E. 3. 24. objected on the other side , that the pardon of felony doth not extend to treason , with which the Institutes 391 agrees , they make not against me ; see the Statute of 25 E. 3. cap. 2. and the Books of 9 E. 4. 26. by Billin . & 8 H. 6. 20. by Strange , they are but bare opinions . It was objected that an Indictment at the Common Law shall not extend to murder unless the word ( Murdravit ) be in the Indictment : I answer , that a pardon of felony may pardon robbery , and yet here ought to be also Robberia in the Indictment . A pardon need not nor can follow the form of Indictments , the offence apparent , it sufficeth . Further , he argued that the King might dispense with the Statute of 2 E. 3. & 13 R. 2. by a Non obstante . It was objected , that the Kings grant with a Non obstante the Statute of 13 R. 2. cap. 5. of the Admiralty is not good , and that so of a pardon o● murder with a Non obstante : to that he answered , and took this difference , Where the subject hath an immediate interest in an Act of Parliament , there the King cannot dispense with it , and such is the case of the Admiralty ; but where the King is intrusted with the managing of it , and the subject only by way of consequence , there he may : see 2 R. 3. 12. & 2 H 7. 6. It was objected , that the King cannot dispense with the inquiry of the Court upon the Statute of 13 R. 2. cap. 1. To that he answered , that the inquiry is the Kings suit , and therefore he may dispense with it : See 5 E. 3. 29. It was objected further , that the Pardon saith , Vnde indictatus est . To that he answered , That if it be left out it is good without it , for the same is only for information ; See 36 H. 6. 25. And the words of pardon are usual to say , Vnde indictatus vel non indictatus , utlegat ' vel non utlegat ' and that would avoid all Pardon 's before if it should be suffered , and for these causes he concluded and prayed that the Pardon might be allowed . Shaftoe of Grays-Inn at another day argued for the King , that the pardon was insufficient , and first he said , That the words of the pardon were not sufficient to pardon murder . For the words Homicidium and Feloni●am interfectionem are indifferent words , and therefore shall not be taken in a strict and strained sense . It is true , that killing is the Genus , but there are several Species of it and several offences . Now for the word ( Felony ) I conceive that the pardon of Felony will not pardon murder , vide 33 H. 8. 50. fol. 4. Dyer . But yet I conceive that felony in the general sense will extend to murder , but not in a Pardon , for there ought to be precise and express words , and so are the Books of 8 H. 6. 20. by Strange , and 22 H. 7. Keilway 31 b. express in the point , Hill. 2. Iac. Institut . 391. a. and Stamford Pleas of the Crown , 114. a. If a man be indicted for an offence done upon the Sea , it is not sufficient for the Indictment to say Felonicè , but it ought also to say Pyraticè . And pardon of all felonies is not a Pardon of all Pyracie ; by the same reason , here pardon of Felony is no pardon of Murder . For the ●ast words , Quocunque alto modo ad mortem pervenerit , these words do not pardon Murder , because they are too general , vide 8 H. 4. 2. & 29 Ass. Pl. 24. And clearly if there were but these general words they would not pardon Murder . I was objected that these words are as much as if murder had been expressed in the pardon . To that he answered , that the Statute of 13 R. 2. cap. 1. saith that the offence it self ought to be expressed , and doth not say by words equipollent ; and the Title of the Statute is , that the offence committed ought to be specified . In all Pardon 's the King ought to be truly informed of the form , as also of the Indictment and proceeding upon it : See 6 Rep. fol. 13. and here is no recital in the Pardon , 9 E. 4. 28. 8 H. 4. 2. Pardon of Attainder doth not pardon the felony , and pardon of the felony doth not pardon the Attainder . I agree that the King may pardon his suit , but the same ought to be by apt words . The words of Licet indictatus , or non indictatus , will not help it , it goeth to the proceedings only , and not to the matter . Besides , the Law presumes that the Patent or Pardon is at the suggestion of the party ; and therefore if the King be not rightly informed of his Grant , he is deceived , and the Grant void ; and perhaps if the King had been informed that the fact done was murder , he would not have pardoned it ; and the words Ex certa scientia shall not make the Grant good , where the King is deceived by false suggession of the party : See Altonwoods Case , 1 Rep. 46. a. & 52. b. 9. E. 4. 26. b. is an authority in the point : by Billing Charter of Pardon ought to make express mention of murder , or otherwise it will not pardon it ; and 22 H. 7. 91. b. Keilway , Pardon of all felonies will not pardon murder , Br. Charter de pardon 10. there ought to be express words of murder in the pardon : See the Old Entries 455. 2 H. 7. 6. by Ratcliffe objected , that the King may pardon murder with a Non obstante , that I agree , but if ought to be by express words : See Stamford Pleas of the Crown , fol. 103 , 104. and 19. a. Where it is said , that a pardon of all felonies doth not extend to murder . Besides , I conceive that a Non obstante cannot dispense with the Statute of 13 R. 2. I agree that where there is a penalty only given by the Statute , there the King may dispence with it . I agree the Book of 2 H. 7. 6. there it was a penalty only . I agree also that the King may dispense with the Statute of Quia emptores ●errarum , as the Book is , N. B. 3. 211. f. But when a Statute is absolute and not Sub modo , there he cannot dispense with it : See 18 Eliz. Dyer 352. and 8 Rep. 29. Princes Case , Institut . 120 a. and Hobarts Rep. 103. The King with a Non obstante cannot dispense with the Statute of Simony , because it is a positive Law and not Sub modo , and this Statute of 13 R. 2. is for the common good . It was objected that the King may pardon murder by the Common Law , and that the Statute of 13 R. 2. takes away the inquiry only ; further , it was objected , that the Statute of 2 E. 3. did allow that the King might pardon murder , but not so easily ; and the Statute of 13 R. 2. is sa●●ng our Regality , by which was concluded that his Prerogative is saved . Bracton fol. 133. a. saith , that the Kings pardoning of murder was contra justitiam , and Register fol. 309. Se defendendo , and per infortunium only are pardonable ; and that well expounds the Statute of 2 E. 3. cap. 2. which enacts that Charters of Pardon shall be only granted where the King may do it by his Oath ; that is to say , where a man kills another Se defendendo , or per infortunium . And for the saving of the Regality , which is in the Statute of 13 R. 2. to that I say , that the Judges ought to judge according to the body of the Act , and that is express that the King cannot pardon murder . 5 E. 3. 29. and Kelway 134. there it is disputed , but yet it came not to our Case , for that is only of a pardon of the Kings suit : and for these reasons he prayed that the pardon might not be allowed . Keeling for the King , that the pardon is not sufficient to pardon murder : The Kings pardons ought to be taken strictly , and so is the 5 Rep. The Question here is not , whether the general words shall extend to murder ; but whether it ought to be precisely expressed in the Pardon or not , and he held that it ought ; and h● held that the King cannot dispense with the Statute of 13 R. 2. by a Non obstante the Books of 2 R. 3. & 2 H. 7. 6. & 11. Rep. 88. That the King may dispense with a Penal Law he agreed , but he said that this Act of 13 R. 2. binds the King in point of Justice , and therefore the King cannot dispense with it ; and Institutes 234 ▪ the King by a Non obstante cannot dispense with the buying and selling of Offices contrary to the Statute , because it toucheth and concerneth Justice . Wherefore he prayed that the Pardon might not be allowed . FINIS . THere is lately Reprinted Mr. March's Actions for Slanders and Arbitrement●● ▪ Sold by Mris Walbanck at Grays Inn-Gate in Grays-Inn-Lane . An Exact TABLE to these REPORTS , Alphabetically composed by the Author . Abatement of Writ . See Title Writ . Acceptance . WHere a Witness hath not a reasonable sum delivered to him , for Costs and Charges , according to the distance of place , as the Stat. of 5 Q 9. saith , yet if he accept it , it shall binde him . See Tit. Witnesses . 1. Accompt . For what things a Husband who is administrator to his Wife , shall be accomptable in the Ecclesiastical Court ; for what no● . pa. 44. pl. 69 Where an accompt by Bill lies for an Attorney of the Common Bench , Kings Bench , or Exchequer ; and where i● an accompt a man shall recover Dam●mages upon the second Judgement . 99 , & 100 pl. 171. In Debt upon an accompt it sufficeth to say that the Defendant was indebted to the Plaintiff upon an accompt pro diversis mercimoniis without reciting the particulars . 102. pl. 175. Action upon the Case . Where if a man sue another , in the name of a third person , without his privity , an Action upon the Case will lye against him , where not ? 47 pl. 76. Where o●e who is not of the Jury , cau●seth himself to be sworn , in the name of one returned of the Jury , and gives his Verdict , either party may have an Action upon the Case against him . 81. pl. 132. A man retorned cited in the Ecclesiastical Court where he was not cited , shall have an action upon the case . 99. pl. 169. Action upon the Case for words . What words shall be actionable , and what not ? pa 1. pl. 3. pa. 7. pl. 17 , 18 , & 19. pa. 15. pl. 37. 19. pl. 44. 20. pl. 45. 58. pl 90. 59. pl. 91 , & 93. 76. pl. 119. 82. pl. 135. 107. pl. 184. 109. pl. 187. 113. pl. 191. 115. pl. 192. 116. pl. 193. 119. pl. 197 146. pl. 217. 62. pl. 96. 211. pl. 248. & 212. 149. Actio personalis moritur cum persona . What shall be said to be an Action personal , and to dye with the person , what not ? 9. 13 , & 14. Alimony . Where a man puts his Wife from him , he is compellable by the Ecclesiastical Court to allow her Alimony . 11. pl. 31. The High Commission Court had not power to allow Alimony . 80. pl. 129. Amendment . Where amendment may be in the inferiour Court after Errour brought , where not ? 72 pl. 109. No amendments allowed in Courts below . 78. pl. 124. No amendment after a Verdict without 〈◊〉 . 82. pl 133. A Decla●ation cannot be amended in substance ▪ wi●hout a new Original , otherwise o● 〈◊〉 . 93. pl. 161. A Warrant of Attorney may be amended after Errour brought . 121. pl. 201. & 129. pl. 209. In an Ejectione firme vi & arms was in the Writ , but wanted in the Count , whether it be amendable or not ? quaere pa. 140. pl. 113. Appendant . Leet may be appendant to a Hundred . 75. pl. 115. Apportionment . Where a Debt or other duty may be apportioned , and several Actions brought , where not ? 57. & 61. Assumpsit , being an entire thing , cannot be apportioned . 100 pl 172. Where an Arbitrament shall be said to be incertain , where not ? 13. pl. 42. Where an Award shall be said to be according to the submission , where not ? 77. pl. 122. The submission of an Infant to an Arbitrament is void . 111. pl. 189. 141. pl. 215. Arrerages . Grantee of a Rent charge in see , distraines for Arrerages , and then grants it over , whether the Arrerages are lost or not , quaere . 103. pl. 178 Assent and Consent . An Executor is compellable in the Ecclesiastical Court to assent to a Legacy . 96 pl. 167. What shall be said a good assent to a Legacy ? and where an assent after the death of the Devisee shall be good , where not ? 137. pl. 209. Assets . Where Assets , or not Assets may be tried by the Spiritual Court ? See Tit. I●risdiction . Assignee & Assignments . A Feme sole conveys a terme in trust , and marries ; the Husband assignes it over , the trust passes , not the Estate . 88. pl. 141. Assumpsit . Where there is a mutual and absolute promise , he that brings the Action needs not to say , q●od paratus est , to do the thing which he promis●d , and that the other refused to accept it ; otherwise , where the promise is conditional . 75. pl. 114. Promise not to exercise ones Trade in such a Town is good , otherwise in case of a Bond. 77. pl. 121. 191. pl. 238. Promise made to an Attorney of one Court , for Sollicitation of a Cause in another Court , is a good consideration upon which to ground an Assumpsit . 78. pl. 123. Promise is an entire thing , and cannot be apportioned . See Tit. Apportionment . Attachment . An Attachment lies against the Steward of an inferiour Court for dividing of Actions . 141. pl. 214. See more of Attachments in Title Contempt . Attorney . Infant cannot be an Attorney . 92. pl. 154. An Administrator brought a writ of Error to reverse the Outlawry of the intestate , for murder , and allowed to appear by Attorney . 113. pl. 190. An Attorney at Common Law , is an Attorney in every inferiour Court , and therefore cannot be refused . 141. pl. 214. Audita querela . In an Audita querela the Law doth not require such strictness of pleadi●g , as in other Actions . 69. pl. 108. Averment . Where , and in what Cases , an Averment shall be good and neces●ary , and where not . 1. pl. 3. 15. pl. 37. 19. & 62. pl. 96. Avowry . Grantee of a Rent charge in Fee , distrains for Arrerages , and then grants it over , whether he ought to avow , or justifie , quaere . 103. pl. 178. Bailiff . SHeriff of a County makes a Mandat Bal●vis suis to take the body of a man , and the Bailiffs of a Liberty retorn a Rescous , and good . 25. pl. 58. Bankrupts . An Inholder is not within the Statutes of Bankrupts . Copyhold Land is . No Inholder at the time of the purchase , but afterwards not , within the Statutes . 34 pl. 67. Baron & Feme . What things of the Wives are given by the Law , and the intermarriage to the Husband , what not ? and what things he shall gain by Letters of Administration after her decease . 44. pl 69. Baron and Feme cannot joyn in a Writ of Conspiracie , in what other Cases they may joyn . 47. pl. 75. See 212. pl. 249. Whether Trover and Conversion against a Baron and Feme , and a count of a conversion ad usum 〈◊〉 be 〈◊〉 or not ; quaere . 60 pl. 94. Se● 82. pl. 134. Feme ●ole conveys a 〈…〉 , her Hus●and that shall ●e , covenants with her 〈◊〉 to intermeddle with it , and yet after marriage assignes it over , the Feme shall have remedy in Equity ▪ 88 pl. 141. Baron and Feme present to a Church , to which they have no right , this gains nothing to the Feme ; otherwise when they enter into Land , or when the Feme hath right . 90. pl. 146. One said of the Wife of another that she was a Bawd and kept a Bawdy-house , for which they joyned in Action , and declared ad damnum ipsorum , and held good . 212 pl. 249. Bar. Bar in one Ejectione firme , ●is a Bar another brought for the same Ejectment , but not for a new Ejectment . 59. pl. 93. Plea in bar , incertain , is naught . See Tit. Pleadings , &c. Tenant for life , the Reversion to an Ideot , an Uncle heir apparent to the Ideot , levyes a Fine , and dyes , Tenant for life dyes , the Ideot dyes , whether the Issue of the Uncle , who levied the Fine , shall be barred by it , or not , quaere . 94. pl. 164. & 146. pl. 216. Certiorari . UPon a Certiorari to remove an Indictment of ●orcible entry denier of one , shall not 〈◊〉 the others , of the benefit of the Certiorari , they offering security according to the Statute of 21 Iac ' , and the Sureties being worth ten pounds cannot be re●used , and after a Certiorari brought , and tender of sufficient sureties , the Justices proceedings are coram non judice . 27. pl. 63. A. and B. were indicted for a murder , B. flies , and A. brings a Certiorari to remove the Indictment into the Kings Bench , whether all the Record be removed , or but part , quaere . 112. pl. 190. Certiorari lies to remove the proceedings of the Commissioners of Sewers . See Title Sewers . Cessante causa cessat effectus . Outlawry reversed , the Original is revived , for Cessanto cause , &c. 9. pl. 21. Chancery . After Execution and Moneys levied , the Lord Keeper cannot order the Money to remain in the Sheriffs hands , or that the Plaintiff shall not call for it . 54. pl. 81. Charter of Pardon . Whether a Pardon of the King of Felony , homicide , &c. doth pardon murder , or not ? quaere . 213. pl. 250. Commission & Commissioners . Commissioners execute a Warrant with a stranger to the Warrant , yet good . 92. pl. 155. Confirmation . Baron and Feme Donees in special Tail● the Baron levies a Fine , and dyes , he in the Reversion confirmes to the Wife her Estate to have to her and her Heirs of her body by the Husband-ingendred , what is wrought by this Confirmation , quaere . 146. pl. 216. Consideration . What shall be said a good Consideration upon which to ground an Assumpsit , what not ? 55 pl. 86. & 78. pl. 123. Contempt Attachment ought not to be granted against the Sheriff for Contempt of his Bailiffs . 54. pl. 81. Upon Error brought , notice ought to be given to the Sheriff , otherwise he shall not incur a Contempt for serving execution . 54. pl. 81. No Attachment , without an Affidavit in-writing . 129. pl. 208. Attachment lies against the Steward of an inferiour Court , for dividing of Actions . 141. pl. 214. Copyhold . Copyholds not granted in Reversion , except by Custom . 6. pl. 13. Copyhold is within the Statutes of 13 Q. 7. and 1 Iac. 1. of Bankrupts . 36. The King grants a Copyhold for life generally , whether this destroys the Copy-hold , or not ? quaere . Descent of a Copyhold shall not take away an entry . 6. pl. 13. Coram non judice . After a Certiorari brought to remove an Indictment of forcible entry , and tender of sufficient sureties according to the Statute of 21 Iac. the proceedings of the Justices of peace are coram non judice . 27. pl. 63. Presentments taken in an Hundred-Court , are coram non judice . 75 pl. 115. Corporation . Churchwardens in London are a Corporation , and may purchase Lands to the benefit of the Church : but Churchwardens in the Country , though a Corporation , are capable onely to purchase Goods to the benefit of the Church . 67. pl. 104. Covenant . A man makes a Lease , and that the Lessee shall have conveniens lign●m non succidend ' & vende●d ' arbores , the Lessee cuts down Trees , the Lessor may bring an Action of Covenant . 9. pl. 22. Lessee of a house Covenants to repair it with convenient , necessary , and teneatable R●parations , in Covenant the Lesser alleadgeth a breach in not repairing , for want of Tyles and daubing with Morter , and doth not shew that it was not tenentable , & therefore nought . 17. pl. 39. A man by Deed conveys Land to his second Son by these words , I do give and grant this Land to I. S. my second Son and his Heirs after my death ; and no livery made , and dyes ; the Estate passeth not by Covenant , and therefore the Son taketh nothing . 50. pl. 78. Covenant with two severally , and good . 103. pl. 176. Counsel & Counsellors . Counsel saith to his Client , that such a contract is Simony , and he saith , that Simony or not Simony , he will do it , and thereupon the Counseller maketh this Simoniacal contract , this is no offence in him . 83. pl 136. Custom and Perscription . By the Custom of London , a man may transfer over his Apprentices to another . 3. pl. 6. By the Custom of London , the Mayor may restrain any man from setting up his Trade within the City , in a place unapt for it , and for his disobedience may imprison him . 15. pl. 34. Custom to cut Grass in the soyl of another to strow the Church , good Custom . 16. pl. 38. Custom or Prescription in non decinando by a Hundred is good , but not by a Parish or particular Town . 25. pl. 59. A Law or Ordinance , where the Custom will warrant it , that he that puts in his beasts in the Common beyond such a limit or bound , shall pay 3 s. 6 d. is a good Law. 28. pl. 64. Custom that if a man have see in Land , that it shall descend to the youngest Son , and if Tail , that then to the Heir at Common Law , is a good Custom . 54. pl 82. Prescription to have Common for all beasts commonable is naught ; but for all beasts commonable levant and couchant , is good . 83 pl. 137. A Hille hath a Chappel , and buries at the Mother-Church , and for this , have time cut of mind repaired parcel of the wall of the Church , it is good for to excuse them from repairing the Church . Inhabitants of a place prescribe to repair the Chappel of ease , and in regard of this , that they have been time out of minde freed from all reparations of the Mother-Church , good prescription 91. pl. 151. Hille hath a Chappel of ease , and a Custom that those with in such a precinct ought to find a Rope ▪ for the third Bell , and repair part of the wall of the Mother-Church , in consideration of which they have been freed of payment of any Tythes to the Mother-Church , whether this be a good Custom or not ; quaere ubi supra . Damage Cleer . WHat Damage Cleer is ; and the prejudice that a man may have in this , that he cannot have his Judgement before that he hath payed the Damage cleer . 76. pl. 226. Damages and Cost . Heir apparent ravished of full age , his Fat●er shall not recover Damages . 5 pl. 8. In Attaint , the Verdict was affirmed , and the Defendant in the Attaint prayed Costs , but was denyed by the Court. 24 pl. 55. A man distrai●s for a Penalty asse●●ed by Custom , and distrainable by Custom , and upon a Beplevin brought , Judgement was given for the Avowant , and Damage assessed , and whether Damage ought to have been given , or not ; quaere . 38. pl. 64. Where Damages entire shall be nought , and where not ; 47. pl. 76. & 96. pl 166. & 47. pl. 76. Where Costs and Damages shall be recovered upon a Penal Law , where not ? 56. pl. 88. 61 pl. 95. Prisoner removing himself by Habeas corpus , shall pay the costs of the removal , otherwise where he is removed by the Plaint●ff . 89. pl. 143. In an Accompt a man shall recover Damages upon the second Judgement . 99. pl. 171. Debt . A Sheriff levies money upon a Fieri fa cias ; Debt will lie against him , and if he dyes , against Executors . 13. pl 33. In Debt upon an Accompt , it sufficeth to say that the Defendant was indebted to the Plaintiff upon an Accompt pro diversis mercimoni●● , without reciting the particulars . 102. pl. 175. & 105. pl. 182. Defamation . If a man Libel in Court Christian for calling of him Drunkard , Prohibition lies . See Tit. Prohibition . 1. D. Libelled in the Ecclesiastical Court for these words ; She is a bea●●ly qu●an , a 〈◊〉 q●ean , a copper-●os'd q●ean , and 〈…〉 and hath 〈◊〉 500 l. and 〈…〉 with whor●s and Reg●●s : upon which a Prohibition was prayed and granted . 89. pl. 144. A woman Libelled in the Spiritual Court against one for calling her Jade , upon which a Prohibition was prayed , and granted : but if it be Libelled for calling one whore or bawd , no Prohibition lies . 99. pl. 170. By the Custom of London an Action lies for calling a woman Whore , and ruled a good Custom . 107. pl. 184. Default & Appearance . Administrator of one Outlawed for murder , brought Error to reverse the Outlawry , and was allowed to appear by Attorney . 113. pl. 190. Demands & Demandable . Grantee of a Rent to be paid at the house , and if the Rent be behinde and lawfully demanded at the house , that then it shall be lawful for the Grantee to distrain , whether a distress upon the Land be a sufficient demand as this Case is , or not ; quaere . 147. pl. 218. Denizen & Alien . Merchant goes beyond Sea , and marries an Alien , who have Issue , the Issue is a Denizen . 91. pl. 150. Deprivation . Where a Church shall be void , without sentence of Deprivation . See Title Void & Voidable . Devises . Devise of Goods to one for life , the Remainder to another , the Remainder is void . 106. pl. 183. Divorce . A man divorced causâ adulterii is within the Proviso of the Statute of 1 of King Iames ca. 11. but not a man divorced caus● saevitiae . 101. pl. 175. Discontinuance . A man may Nonsuit without the consent of the Court , but not Discontinue without the Courts consent . 24. pl. 54. Dispensations . Whether the King by a Non obstante in his Charter of Pardon may dispense with the Statute of 13 R. 2. ca. 1. or no● ; quaere . If you peruse this Case , you shall finde much excellent learning upon that point in what Case the King may dispense with Statutes , in what not . 213. pl. 250. Distress . Horses traced together are but one Distress , Fetters upon a Horse-leg may be distrained with the Horse . 91. pl. 149. Distribution . Whether the Ordinary after Debts and Legacies paid may inforce a Distribution , or not ; quaere . 65. pl. 102. & 93. pl. 158. Double Plea. Where two things are alleadged , and the one of necessity onely , or by way of inducement , and the party relies onely upon the other , that is no double Plea. 55. pl. 84. & 74. pl. 113. Ejectione Firme . Ejectone Firme de uno repositorio ; nought for the incertainty . 96 pl. 166. Ejectione Firme de tanto unius messuagii &c. q●a●tum ●●at super ripam , is nought for the incertainty , and so where the T●over of the Jury is such , it is nought . 97. pl 168. Elegi● Upon an Elgit there needs no Liberate , otherwise upon a Statute . Note , the Elegit excepts averia Caru●● . 117. pl. 194. Equity . Certain special Cases where there shall be remedy in Eq●ity , where not . pa 83. pl. 1●8 . 88. pl. 141 90. pl. 145. 93. pl. 159. 99. pl 1●1 102 pl. 175. 105. pl. 182. 106. pl. 183. & 129. pl. 207. Errors . In Error to reverse a Judgement in Debt upon an Arbitrament , Judgement was reversed , first because that in the reference to the Arbitrament , there was no word of the submission . Secondly , because that the entry of the Judgement was , consid●ratum est , and per Curiam omitted . 7. pl. 16. In an Act●on for words , Judgement was reversed , because that it was averred , that the words were spoken inter diversos ligeos , and doth not say Cives of the place , where they have such an acceptation ▪ as also for that the Judgement was Consideratum est , and per Curiam Omitted . 15 pl 37. In Trespass , the Defendant justifies by a special Custom , by Vertue of which he did it , and doth not say , quae est eadem transgressio , for which Judgment was reversed . 16. pl. 38. Judgment was reversed for want of Pledges . 17 pl. 40. Outlawry was reversed , because it did not appear where the party outlawed was inhabitant ; as also for that it did not appear that Proclamations were made at the Parish-church where , &c. 20. pl. 46. Judgement reversed for the appearance of an Infant by Attorney . 24. pl. 53. O●tlawry reversed because the Exigent was Secund. exact ' ad Com' Meum ●bm ' , &c. 25. pl. 58. A. Wife of I. S. intestate promises to B. to whom Administration was committed , that if he would relinquish Administration at the request of C. and permit A. to Administer , that A. would , &c. in Assumpsit by B. he shewed , that he renounced Administration , and permitted A. to Administer , but doth not shew that it was at the request of C. by Barkley Just. it is Error . 55. pl. 86. Judgement ought not to be judged erroneous by implication . 56. pl. 88. & 61. pl. 95. A Writ of Error upon Dower , well lies , before the Retorn of the Writ of Enquiry of damages ; but whether a Writ of Error lies in an Ejectione firme , before Judgment given upon the Writ of Enquiry , quaere . 88. pl. 142. Want of Warrant of Attorney for the Plaintiff after Judgment upon nihil dicit , is Error , and not amendable . 121. pl. 201. & 129. pl. 209. Writ of Error bearing Teste before the Plaint entered is nought , otherwise , where is bears Teste before Judgment . 140. pl. 112. In an Ejectione firme the Writ was 〈◊〉 & armis , but it wanted in the Count , and whether this is error , or amendable , or not , quaere . 140. pl. 213. Escape . Upon mean Process , if the Sheriff retorn a Cessi and Rescous , no Action lies against him for the escape , otherwise in case of Execution . 1. pl. 1. Estoppel . Morgager makes a Lease for years by Deed indented , after performs the condition , and makes a Feoffment in ●ee , the Feoffee claiming unde● the Estoppel , shall be bound by the Lease . 64. pl. 99. If a man bind himself to deliver any thing , he is estopped to say , that he hath it not . 74. pl. 113. Estoppel binds only parties . 105. pl. 180. Evidence to an Inquest upon Issues joyned . Depositions taken in the Ecclesiastical Court , cannot be given in evidence at Law , though the parties were dead . 120. pl. 198. Executions & prayer in execution . A second Execution cannot be granted , before the retorn of the former . 47. pl. 73. Where a man is imprisoned for the Kings Fine , and upon a Habeas co●pus it is retorned that he is in Execution also for the Damages of the party , it ought to be intended at the prayer of the party . 5a . pl. 80. Executor & Administrator . An Executor or an Administrator may maintain an Action for any Co●t●●ct made to the Testator , or In●estate , or for any thing which riseth ex contractu . 9. pl. 23. Administrator of an Executor shall not sue a Scire Fa● ' upon a Judgement given for the Testator . 9. pl. 24. A Sheriff levies moneys upon a F●●ri Fas ' and dies , Debt will lie against his Executors . 13. pl 33. Whether the Executor of a Ph●llizer shall have the profits of the Writs which are to ●e subscribed with his name , or his Successor , quaere . 90. pl. 147. Expositors of Statutes . The Judges are the sole Expositors of Acts of Parliament , though they conc●rn Spiritual matters . 90 pl. 148. Extinguishment and Suspension . Three covenant joyntly , with two severally , after one of the covenantors marries one of the covenant●es , whether the covenant be good or not . 103. pl. 176. Fine to the King. IF a Carrier spoil the High-ways , by drawing a greater weight than is warrantable by the Custom of the Realm ; he is ●inable to the King. 145. pl. 210. Fines of Lands . Disseisee levies a Fine to a stranger , this doth not give the right to the Disseisor . 105 pl. 180. Tenant for life , the Reversion to an Ideot , an U●cle Heir apparant to the Ide●● levies a Fine , and dies , Tenant for life d●eth , the Ide●t dies , whether the Issue of Uncle who levied the Fire ●●albe barred by this , or not , quaere . 4. pl. 164. & 146. pl. 216. Forcible Entry . Restitution cannot be awarded to the Plaintiff , if it doth appear that he hath seisin , yet the King shall have his Fine : and if the Indictment be adtunc & adhuc , the Defendant keeps the possession forcibly , where the Plaintiff was in possession , Re-restitution shall be awarded . 6. pl. 12. Forgery . To forge a Will in writing , though without a Seal , is forgery within the Statute of 5 Q. ca. 14. Freehold . What shall be said a grant of a Freehold to commence at a day to come , what not . 31. pl. 66. Gardeins of a Church . WHere the Custom is for the Parishoners to chuse the Churchwardens , the Person by colour of the Cannon cannot chuse one ; and if the Minister of the Bishop refuse to swear one of them chosen by the Parish , a Mandat lies to inforce him to it : and if the Parson thereupon doth Libel in the Ecclesiastical Court , a Prohibition lies . 22. pl. 50. & 67. pl. 104. The Gardeins of a Church in London are a Corporation , and may purchase Lands to the use of the Church : and in the Country they are a Corporation , capable to purchase Goods to the benefit of the Church . 67. pl. 104. Good behaviour . A man was bound to his good behaviour for suborning of Witnesses . 11. pl. 30. Grants of common persons . Grant of all Tythes in C. is a good grant , for it is not absolutely general , but a general in a particular . 31. pl. 66. Where a Grant shall be good notwithstanding a false recital . ibidem . The King may grant an Office in Reversion , without Custom , but not a Common person , or a Bishop . 42 , & 43. Where a Trust is grantable over : See Tit. Assignee & Assignments . 1. An Executor grants omnia bona & catalla sua , this shall pass the Goods which he hath as Executor . 205. Grants of the King. The King may grant an Office in Reversion , without Custom . 42 , & 43. Grants of the King need not recite Leases not of Record , nor Coppyholds . 206. pl. 246. Habeas Corpus . UPon a Habeas Corpus , if all the causes retorned shall be adjudged for the Prisoner , but one , yet he ought to be remanded for this one . 53 , & 54. Hariots . Copyholder for life , where the Custom is , that if the Tenant die seised that he shall pay a Hariot , the Lord grants the Seigniory for 99 years , if the Tenant should so long-live , and after makes a Lease for 400 years , Tenant for life is disseised , and dies , who shall have the Hariot ; quaere . 23. pl. 52. Hue and Cry. What Hue and Cry shall be sufficient upon the Statute of Winchester and 27 Q. of Robberies . Ieofail . NO Venire Fac ' is helped by the Statute of Jeofailes , but not an erroneous one . 26. pl. 60. If a man plead an affirmative plea , as that he hath saved one harmless , and doth not shew how , it is naught . See pa. 49. and is matter of substance , and therefore not helped by the Statute , upon a general Demur . 121. pl. 200. See pa. 49. Implicative & Implie . Judgment ought not to be judged erroneous by implication . 56. pl 88. & 61. pl. 95. Incertainty . Trover and conversion of two Garbs , and counts of a conversion of two Garbs , Anglicè Sheafs of Rye , the count is incertain and void , and the Anglicè doth not help it . 60. 94. Where a Verdict incertain shall be void . 97. pl. 168. Ejectione Firme de tanto unius me●nagii , &c. quantum stat super ripam , is naught for the incertainty . ubi supra . Indictment . Upon an acquittal , and removal of the Indictment into the Kings Bench , the Court refused to grant a Copy of it to the party acquitted , that he might bring a conspiracy , except it did appear that there was malice in the prosecution . 26. pl. 61. Moved to quash Indictments for not paving of doors , because it was not shewn that they o●ght to pave t●em : which the Court would not grant , without a Certificate that the doors were paved . Indictments quashed , because joynt , where they ought to be several . 45. pl. 71. Indictment of Rescous quashed , because it was not shewn , where the Arrest was , as also , for that , vi & armis wanted in the Indictment . 67. pl. 105. Exceptions to an Indictment of Murder , all disallowed by the Court. 79. pl. 127. One not retorned of a Jury , causeth himself to be sworn in the name of one that was , and gives Verdict , he may be indicted for this misdemeanor . 81. pl. 132. Infant Grant of an Office of Truff to an Infant to execute by Deputy , is good : or a grant to him in Reversion is good ; for it may be granted in see , and so descend to an Infant ; or a Feme Covert may have such an office , because that by possibility she may have a husband which may execute it . 38. pl 63. Where an Action shall lie against an Infant , where not . 39 , 40 , 41 , & 42. Infant cannot be an Attorney , because he cannot be sworn . 92. pl. 154. Infant cannot submit to an Arbitrament , and if he doth , it is void . 111. pl. 189. & 141. pl. 215. Informations . Information lies against a Carrier for spoiling the highways , by drawing an extraordinary weight contrary to the custom of the Realm , upon which he shall be fined and imprisoned . 135. pl. 210. Inrolments . Where a man in pleading of a bargain and sale ought to plead an inrolment , 〈◊〉 where not . 62. pl. 97. & 69 pl. 1●● . Instance & Instant . Copyholder for life 〈…〉 grants the Seigniory for 99 years , if the Tenant should live so long , the Tenant dies , whether the Grantee for 99 years shall have the Heriot by force of this instantany title , or not ; quaere . 23. pl. 52. Intent & Intention . Where an Estate shall pass by way of raising of a use , and where by way of transmutation of possession , according to the intention of the party . 50. pl. 78. Ioynder in Action . A promise is made to a Baron of a Feme Executrix , in that right as Executrix , whether they may joyn in action or not ; quaere . 72. pl. 110. Three covenant with two severally , they cannot joyn in action . 103. pl. 176. One said of the wife of another , that she was a bawd , and kept a bawdy-house , upon which they joyned in action , and good . 212. pl. 249. Baron and Feme cannot joyn in conspiracy . 47. pl. 75 , Issues joyned . In Trespass , the Defendant justifies , and sayes quod hab●it viam non solum ire , equitar● , & aver●a sua fugare , verum etiam caruc●s & carreragiis carriare , &c. the Plaintiff Traversed it in the words aforesaid , and it was resolved that the Issue was well joyned . 55. pl. 83. What words are sufficient , upon which an Issue may be taken , what not . 207. pl. 247. Iurisdiction . 〈◊〉 Courts at 〈…〉 may hold Plea 〈…〉 3. pl. 5. If a particular and limitted Jurisdiction hold plea of a thing out of their Jurisdiction , all is coram non judice , and void . 8. pl. 20. The Jurisdiction of the Council of the Marches of Wales , of what things they may hold plea , of what not , and of what value See Title wales . 1 , 2 , 3. Court which hath Jurisdiction of the principal , shall have Jurisdiction of the accessory also . 52. pl. 80. & 66. pl. 103. See Tit. Distribution . 1. & pa. 201. If a man be sued in the Ecclesiastical Court for not coming to Church , and pleads in excuse of it according to the Statute , the Ecclesiastical Court may hold plea of the excuse . 93 pl. 162. Legatee may sue an executor in the Spiritual Court for to make him assent to a Legacy ; and if it be issuing out of a Lease for years , they may order the Lease to be brought in Court , though it be in the hands of a third person , but this binds onely the Defendant , and Assets or not Assets is triable by them . 96. pl. 167. In false imprisonment brought against an Officer of an inferiour Court , if he justifies the arrest by vertue of a Warrant directed to him out of the Court , he ought to intitle the Court to jurisdiction , or otherwise his plea is naught , and the action will lie against him . 117 pl. 195. Iustification . In Trespass , if the Defendant justifies for part , and saith nothing to the other part , the plea is insufficient for the whole . 21 pl 47. In false imprisonment brought against the Officer of an inferiour Court , if he iustifies the arrest and imprisonment by vertue of a Warrant directed to him out of that Court , he ought to i●ti●le the Court to Jurisdiction , or otherwise his justification is naught . 117. pl. 195. Leases . IT is the course in the Excequer , that they may make Leases for three lives by the Chequer-Seal . 55. pl. 85. Legacy . Executor is compellable in the Ecclesiastical Court to assent to a Legacy . 96. pl. 167. What shall be said a sufficient assent to a Legacy , what not , & when it shall come in due ●ime , when not . See Title Asse●t and Consent . 2. Letters of Mart or Reprisal . If a Ship be taken by Letters of Mart , and is not brought infra presidia of the King who granted the Letters , it is no lawful prize , and the property not altered , and therefore the sale void . 110. pl. 188. License . A man may be Nonsuit without the License of the Court , but he cannot discontinue without the consent of the Court. 24. pl. 54. Limits & Limitations . If a Debt be superannuated by the Statute of 21 of King Iames ca. 16. which limits a man to bring his action within 6 years , and after the parties account together , and he is found to be indebted so much for such wares , though the party were before without remedy , yet now he may have Debt upon the accompt . 105. pl. 182. & 129. pl. 207. A Trust is not within the Statute of 21 aforesaid , and therefore no time lapsed shall take away remedy in equity for it . 129 pl. 207 See pa 15● . Maintainance . IF a man commence an Action at the suit of another without his privity , it is Maintainance . 47. pl. 76. Mandat . Mandat granted to swear a Churchwarden elected by the Parish , where the Parson would have put one in by force of the Canon-Law . See Tit. Gard●ins of the Church . 1. Mandat granted to swear a Parish-Clerk who continued two or three years in quiet possession , not being sworn , and whom the new Parson would have put our without cause . 101. pl. 174. Name . AN Earl of any other Realm may implead , or be impleaded , by the name or title of Knight and Earl of such a place , and good , because the Knight is not local , though the Earl be . 19. pl. 26. New Assignment . A man may make a New Assignment to a special bar , as well as to a common bar , if he will. 105 pl. 199. Nonsuit . A man may be Nonsuit without the consent of the Court , but not Discontinue without the consent of the Court. 24. pl. 54. Notice . What notice upon the Statutes of 〈◊〉 12 E 1 and 27 〈◊〉 of Robberies shall be sufficient , what not . 10 pl. 28. Upon Errour brought , notice ought to be given to the Sheriff , otherwise he shall not incur a contempt , for serving execution , for which an Attachment shall issue . 54. pl. 81. In all Writs of enquiry of Dan●●ges , as well in real as personal actions , notice ought to be given . 82. The Defendant upon an award was to pay to the Plaintiff 8 l. or 3 l. and costs of suit expended in an Acton of Trespass betwixt the Plaintiff and Defendant , as should appear by a Note under the Attorney's hand of the Plaintiff , &c. the Plaintiff is not bound to cause his Attorney to give notice or make tender of the note to the Defendant , but he ought to seek the Attorney , and request it . 108. pl. 186. & 156 pl. 225. If one be presented to a Benefice under the age of 23 years , no Lapse shall incur to the Bishop without knowledge given to the Patron . 119. pl. 190. The King grants a Copyhold for life generally , whether the Copyhold be destroyed or not , q●aere : which depends upon this , whether the King be bound to take notice of it to be a Copyhold , or not . 206. pl. 246. Obligation . IF a man be bound not to exercise his Trade in such a Town , the Obligation is void . See Tit. Assu●psit . 2. If an Infant binde himself to perform an award , the bond is void ; so if a stranger binde himself that an Infant shall perform an award , the bond is void . 111. pl. 189. & 141. pl. 215. Three are bound joyntly and severally in an Obligation , the Seals of two of them are eaten with Mise and Bats ; whether this shall avoid the bond as to the third person , as well as to the other two ; qu●re . 125. pl. 205. Office & Officers . Where an Infant may be an Officer , where not , and what office may be granted in see , what not . See Title Infant . 1. The King may grant an Office in Reversion , without Custom , but not a common person . 42 , & 43. Bishop may grant an Office in Reversion , if the Custom will warrant it , otherwise not . ubi supra . Parson cannot put out the Clerk of the Parish , without cause , if he doth , no Restitution lies , but he hath his other remedy , for it is a temporal office . 101. pl. 174. Orphanes . An Orphan may waive the Court of Orphanes , and sue in Equity , for it is a priviledge which the Orphan hath , & q●ilibet potest renunciare juri prose introducto . 107. pl. 185. Outlawry . Outlawry reversed , the Original stands . 9 pl. 21. Physitians . IF a Physitian bring an action against one for scandalous words to his profession , it is not sufficient for him to say , that he is in medicinis Doctor , but he ought to shew that he was licensed to practise by the Colledge of Physitians in London , or that he was a Graduate of one of the Universities . 116. pl. 193. Place . A man pleads a Conveyance made of Land , according to promise , and shews not where it was made , he need not , for it shall be intended to be made upon the Land , so in case of performance of covenants . 22. pl. 51. The place of Rescous ought to be shewn . 25. pl. 57. Pleadings & Pleader . If a man in pleading derive an Estate from any man , he ought to shew what Estate he had , from whom he derives his Estate , if it be material to the maintaining and supporting of the estate which he claims , otherwise not . 1. pl. 2. In Trespass , if the Defendant justifies for part , & saith nothing to the residue , the plea is sufficient for the whole . 21. pl. 47. Trover and conversion of two Garbs , Anglicè Sheass of Rye ; the count is uncertain , and naught , and the Anglicè doth not help it . 60 pl. 94. Where a man in pleading a bargain and sale , ought to plead an inrolment , where not . 62. pl 97. & 69. 108. A man is not bound to plead the title of his adversary , or a stranger , so exact as his own title . 62. pl. 97. & 99. pl. 108. In Trespass of assault , battery & wounding , the Defendant may plead not guilty as to the wounding and justifie the assault and battery without any repugnancy . 98. 106. It is no good plea to say that such a one was bound in a Recognizance , but he ought to say , per scriptum obligatorium ; and to conclude that it was secundum formam statuti will not help it , but in a Verdict it was agreed to be good . 76. pl 117. Apothecary brought an action upon the case upon a promise for divers wares & medicines of such a value , the Desendant pleads in bar that he payed to the Plaintiff tot & tantas denariorum summas as the medicines were worth , and shews no sum in certain , and therefore naught . 77. pl. 120. A. and B. were bound to stand to and observe such order and decree as the Kings Counsel of the Court of Requests should make : A. brought an action against B. and pleaded that the Counsel of the King of the said Court made such order and decree , and that the Defendant did not observe it ; the Defendant pleaded that the King and his Counsel did not make the decree , which is naught . 78. pl. 126. Where a bad plea shall be made good by Verdict . See Title Verdict 2. If a man plead an affirmative plea , as that he hath saved the Plaintiff harmless , and doth not shew how , it is naught ; otherwise of a negative plea , as non damni●icatus , &c. 121. pl. 200. What shall be said to be an argumentative plea , what not . 207. pl. 247. Pleas of the Crown . Bayliffs endeavour to break open a house , to serve an Execution upon the owner , who not desisting upon his threats , he shot and killed one of them , it is not murder , but man-slaughter . 3 pl. 7. Many notable resolutions upon the Statutes of Winchester , and 27 Q. of Robberies . 10 pl. 28. Pledges . Judgement reversed for want of Pledges . 17. pl. 40. In a Replevin brought in an inferior Court and no Pledges de retorno habendo taken by the Sheriff according to the Statute of W. 2. ca. 2. upon the plaint removed into the Kings Bench , that Court may find Pledges , and that any time before Judgement . 46. pl. 72. Presentments in Courts . Presentments taken in an Hundred Court were quashed , because that it is not the Kings Court , and therefore coram ●on judice . 75. pl. 115. Priviledge . If the Clerk of a Court be elected into any office which requ●res his personal & constant attendance , as Churchwarden , or the like , he shall have his priviledge , otherwise not , as for watching and warding , and the like . 30. pl. 65. Ordered by the upper House of Parliament 16 Caroli , that onely menial servants , or such as tend upon the person of a Knight or Burgess should be priviledged from arrest . 92. pl. 157. Debt against a husband and his wife as executrix , who are sued to the Exigent , and at the retorn of it , the husband ( being an officer in the Exchequer ) came into Court and demanded his priviledge , and whether as this case is he shall have it , or not ; qu●ere . 149. pl. 219. Prohibition . A man libelled in the Ecclesiastical Court against one for these words , Thou art a drankard , and usest to be drunk thrice a week , upon which a Proh●bition was prayed and granted . 6. pl. 11. & 66. pl. 103. If the Ecclesiastical Court proceed upon a Canon which is contrary to the Common Law , Statute Law , or Custom , a Prohibition lies . 22. pl. 50. & 67. pl. 74. Two joynt Tenants of Tythes , the one sues in the Ecclesiastical Court without the other ; or a Feme Covert solely for de●amation , this is no cause of Prohibition . 25. pl. 26. & pa. 47. pl. 112. See pa. 93. pl. 112. Upon a Petition to any Ecclesiastical Judge , without suit there , no Prohibition lies . 45. pl. 70. A man is compellable in the Ecclesiastical Court to repair a way which leads to the Church , but upon a Libel there to repair a highway a Prohibition lies . 45. 70. Tenant in Ta●l levyed a Fine to the use of himself for life , the Remainder in see to I. S. and died , the Counsel of the Marches wou'd settle the possession upon the Heir of the Tenant in Ta●l , against the purchasor , upon which a Prohibition was granted . 51. pl. 79. Libel for Tythes for barren Cattle , upon a suggestion that the party had no cattle but for plough and pale , Prohibition was granted : the same Parson libelled for Tyth of Coneys , upon which a Prohibition was also granted . 58. pl. 87. No Prohibition after sentence in the Ecclesiastical Court. 73. pl. 111 & 92. pl. 156. Many men recover Costs in the Spiritual Court , one of them releases , the others sue there for their costs , this is no came of Prohibition Baron and Fe●●e recover costs there for defaming the wife , the Baron releases , this will not ba● the wife . 73 pl. 112. See. pa 25. pl. ●6 . & pa. 4● . pl. 〈◊〉 . Contract betwixt the Vicar and a 〈◊〉 shi●ner to pay so much for 〈…〉 Tythes , the Vicar dies , his 〈…〉 in the Ecclesiastical Court for them , 〈◊〉 on which a Prohibition was granted , by reason of the real contract which is a temporal thing . 8● l. 1●0 Libel in the Ecclesiastical Court for these words : 〈…〉 upon which a Prohibition was granted . 89. pl. 144. Where the Ecclesiastical Court hath con●sance of the cause , though they proceed erroneously , a Prohibition will not lie . 92. pl. 152. See pa. 98. pl. 169. 〈◊〉 . The Ecclesiastical Courts may hold plea of an excuse for not going to Church , and no Prohibition lies . 93. pl. 162. Where there are several Mo●●ses , there several Prohibitions shall be granted ; where one Moa●s , onely , though divers parties , all shall have but one Prohibition . 94. pl. 163. If the Ecclesiastical Court proceed against a man without Citation , where they have Jurisdiction , no Prohibition lies , the remedy is by way of Appeal . 98. pl. 169. See pa. 92. pl. 152. 〈◊〉 . Legatee may sue an executor in the Sp●ritual Court , for to assent to a Legacy : & Assets or not Assets may be tried by them , and no Prohibition lies . 96. pl. 167 ▪ A woman Libelled against another for calling of her lade , upon which a Prohibition was granted : but for Whore or Eawd no Prohibition lies ; quaere whether or not for Quan . 99. pl. 1●0 . If a man be sued in the Court of Requests to account there , a Prohibition lies . See Title S●●●●stratica . 1. & 2. A man exhibited a 〈◊〉 in the Court of Requests for moneys due upon an account , upon which a Prohibition was granted , for that it is no 〈◊〉 than Debt upon an account : further they referred the 〈…〉 the 〈◊〉 to ●●●ers , which 〈…〉 of Prohibition 102. pl. ● 5 ▪ 〈…〉 If a Ship ●e taken at Sea , whether b , Letters of Mart , or by ●itacy , if it be sold infra co●pus conitatus , and the party Libels against the vendee in the Admiral●y , a Prohibition lies . 110. pl. 188. Upon deciding of Actions in an inferiour Court , a Prohibition lies . 141. pl. 214. Property . In Trover and Conversion for a Hawk , if he doth not say that it was reclaimed , the Action will not lie , for that it doth not appear he had a property in it ; and to say that he was possessed of it ut de bonis suis propriis will not help it . 12. pl 32. A man brought Trespass for fishing in seperali ●●s●eria sua , and declares that the Defendant ●●●es ipsius c●pit : and good , for that he had a qualified property in them , ratione privilegii . 48 pl. 77. If a Ship be taken by Letters of Mart , and is not brought infra pr●●si●ia of the King who granted them , the property is not altered . 110 pl. 118. Quilibet potest renunciare juri pro se introducto . AN Orphan may waive the Court of Orphans , and sue in Equity , for it is a priviledge which the Orphan hath , & quilibet potest renunciare , &c. 107. pl. 185. Recital . WHere a false Recital shall not avoid a grant . 31. pl 66. Grants of the King need not to recite Leases not of Record , nor Copyholds . 206. pl. 246. Recognizance . It is no good plea to say , that such a one was bound in a Recognizance , and to conclude that it was secundum ●ormam statuti , but he ought to say , per scriptum obligatorium . 76. pl. 117. Records . An Order of the Sessions of peace , is a Record , and therefore the plea of nul tiel Record of Sessions of peace , is a good plea. 121. pl. 200. Relation . If a man be living at the day of Nisi prius , and dies before the day in Bank , the writ shall not abate , so if a man be living the first day of Parliament , and dies before the last , yet he may be attainted , for that they are but one day by relation . 65. pl. 101. Releases . Release to a bargainee before inrolment , is not good . 70. If divers recover costs joyntly in the Ecclesiastical Court , and after one of them releases , this is no bar to the others in a 〈◊〉 there for their costs ; so where a baron and feme recover costs there in the right of the wise , and the baron releases , this shall not bar the wife . 73. pl. 112. See Title Prohibition . Two men are bound joyntly and severally to a third , who sues the bond against both , and after appearance , enters a Retraxit against one , whether this shall amount to a Release , so that it shall discharge the other or not ; quaere . 95. pl. 165. Remainder and Reversion . The King may grant an office in reversion , but not a common person , nor a Bishop without Custom . 42 , & 43. Remover of Records . A. and B. were indicted for a murder , B. flies , A. brings a Certiorari to remove the Indictment into the Kings Bench , whether all the Record be removed , or but part ; quaere . 112. pl. 190. Writ of Errour bearing Teste before the plaint entered , is naught , and the Record is not removed by it ; otherwise , where is bears Teste before Judgement . 140. pl. 212. Reparations . The inhabitants of a Parish are bound by the Common Law to repair the high-wayes within the Parish , except prescription binde any particular persons to it . 26. pl. 62. A man is compellable in the Ecclesiastical Court to repair a way which leads to the Church , but not a highway . 45 pl. 70. Repleader . Where there is an insufficient bar , and a good Replication , after a Verdict , there shall be a Repleader : contrary where no Verdict . 78. 125. Replevin . Replevin lies of a Ship. 110 pl. 188. Requests . A. is bound to B. to deliver to him two hundred weight of Hops , and B. to chuse them out of 24 bags , &c. whether B. is bound to request A. to shew the bags for him to make his election or not ; quaere . 74. pl. 113. Rescous . For a Rescous upon mean process , no Action lies against the Sheriff , otherwise , in case of Execution . 1. pl 1 Restitution . Clerk of a Parish is put out by the Parson without cause , no writ of Restitution lies . 101. pl. 174. Barrister of one of the Temples was expelled the house , whereupon he prayed his writ of Restitution , and denied , because that there is no body in the Inns of Court to direct unto , they being no body corporate . 177. pl. 235. Retorn of a Sheriff . Sheriff in retorn of a Rescous , saith , that he was in custodia ballivi itinerant●s , and that Rescous was made to him , the retorn is naught , because the Law takes no notice of the Baylie itinerant . 92. pl. 153. Revocation . The King presents , and before institution presents another , whether this be a Revocation of the former presentation , or not ; quaere . 86. Scire Facias . UPon a Judgement in the Kings Bench there ought to be two Scire Faciases , one against the principal , the other against the Bayle , but one only suffices in the Common Pleas , and two Nihils retorned , amount to a Scire feci . 3. pl. 4. A man acknowledgeth a Statute , and after grants a Rent , the Statute is satisfied , the grantee of the Rent may distrain , without suing●a Scire Facias . 124. pl 203. 159. pl 230. & 207. pl. 247. Sequestration . No Sequestration ought to be granted by a Court of Equity until all the process of contempt are run out : & the sequestring of things collateral is illegal . 81. pl. 130. For sequestring of collateral things , a prohibition was granted to the Court of Requests . 99. pl. 151. Sewers . Divers Exceptions taken to the proceedings of the Commissioners of Sewers , upon Certificates of them . 123. pl. 202. & 191. pl. 241. Resolved upon question , and debate , that a Certiorari doth lie to remove the proceedings of the Commissioners of Sewers . 192. pl. 241 : Supersedeas . Writ of Errour brought here to reverse a Judgment given in Ireland , is a Supersedeas to the Execution . 10. pl. 27. A Writ of Error is no Supersedeas of it self without notice . 54. pl. 81. Writ of Error is a Supersedeas to the Writ of Enquiry of Damages . 88. pl. 142. Tenant at will. WHether a bargainee before inrolment or entry , shall be a Tenant at will , or not ; quaere . 62. pl. 97. & 69. 108. Tender . The defendant upon an award was to pay to the plaintiff 8 l. or 3 l. & costs of suit expended in an action of Trespass betwixt the plaintiff and defendant , as should appear by a note under the Attornies hand of the plaintiff , &c. the plaintiff is not tyed to cause his Attorney to tender the note to the defendant , but the defendant ought to seek the Attorney , and request it of him . 108. pl. 186. & 156. pl. 225. Traverse . A man pleaded the descent of a Copyhold in see , the Defendant to take away the descent , pleads that the ancestor surrendred to the use of another , absque hoc that the Copyholder died seised , the Traverse is naught . 21. pl. 48. A man was bound to pay money at such a place , in debt brought against him , he pleaded that he payed the money at the place , this is not traversable . 77. pl. 122. Trespass . An action of trespass lies upon the Statute of 2 E. 6. against any man that takes the Tythes . 21. pl. 49. Trespass for fishing in s●perali piscaria of the Plaintiff . 48. pl. 77. Trover & conversion . Trover and conversion lies of a Ship. 110. pl 188. Tythes . A Vicar cannot have Tythes , but by dotation , composition , or prescription , for all the Tythes de jure appertain to the Parson . 11. pl. 29 Fishes in a River are not tythable but by Custom . 17. pl. 41. An action lies upon the Statute of 2 E. 6. against any man that takes the Tythes 21. pl. 49. Custom in non decimando by a Hundred is good , not by a Parish or Town . 25. pl. 59. A man shall not pay Tythes for Cattle which are for plough and pale onely : nor for Conies , except by Custom , and if the Tenant doth not plough and manure his land , yet the Parson may sue him for Tythes . 56. pl. 87. A man shall not pay Tythes of roots of a Coppice rooted up , nor of Quarries of Stone , nor for Brick and Clay . 58. pl. 89. & 64. pl. 100. It is a rule that where a Parishioner doth any thing , which he is not compellable by the Law to do , which comes to the benefit of the Parson , there if he demands Tythes of the thing , in lieu of which that thing is done , a Prohibition lies : And also it is a rule , that Custom may make that tythable , which of it self is not tythable . 65. Custom to pay Tythes in kind for Sheep , if they continue in the Parish all the year , but if they be sold before shear-time , but a half peny for every one so soid , naughty custom : Custom in the same Parish to pay no Tythes for loppings , or wood for fire , or hedging , is a good Custom . 79. pl. 128. Modus decimandi goes onely to the realty , the Tythes , and not to the personalty , the Offerings . 81. pl. 131. Incumbent presented by Simony , cannot sue his Parishioners for Tythes . 84 pl. 139. Hille which hath a Chappel of ease , hath a custom , that they ought to finde a rope to the third Bell , and repair part of the wall of the Mother-church , in consideration of which , they have been free from payment of Tythes to the Mother-church , whether this be a good custom , or not ; quaere . 91. pl. 151. Variance . IN Trespass for assault , battery and wounding the plaintiff , the plaintiff declares & sa●th , that quendam equum upon which the pla●ntiff rid , percussit , ita quod c●cidit , &c. this is no variance , for that the alleadging of the striking of the horse , was onely an inducement to the battery of himself . 98. pl. 107. Venire Facias . A man brought Debt upon a Bond conditioned to pay so much in a house of the plaintiffs in Lincoln , the defendant pleaded payment at Lincoln aforesaid , upon which they were at issue , and the Venire Fac ' was de vicinet ' Civitatis Lincoln ' , and found for the plaintiff , & it was moved , that this was a mis-trial , for that the Venire ought to have been of the body of the County of Lincoln , and not of the City , but resolved to be good . 124. 204. Verdict . Where the Jury find the substance , though they vary in the circumstance , yet it is good . 9. pl. 25. Where a bad plea shall be made good by a Verdict . ●2 . pl. 134. In an Ejectione Firme , the Jury find the defendant guilty in tanto unius messuagii in occupatione , &c. q●aentm stat super ripam , and not guilty for the residue , the Verdict is naught for the incertainty . 97. pl. 168. See pa. 100. pl. 172. Void & Voidable The Statutes of 31 Q. ca. 6. enacts that if a man be presented , instituted & inducted upon a Simoniacal contract , that the Church shall be utterly void , &c. in this case it is void , without deprivation or sentence declaratory . 84. pl. 139. Wager of Law. A Man cannot wage his Law against matter of Record . 14. A man may wage his Law against a Recovery in a Court Baron , because it is no Record . 15. pl. 35. Wales . In what manner the Council of the Marches of Wales proceed , and of what they may hold plea. 7. pl. 14. 51. 79. 52. pl. 80. & 63. pl. 98. Warrant of Attorney . Though the Attorny be dead , yet the warrant of Attorny may be filed . 103. 177. Where a warrant of Attorny may be filed after Error brought , where not . 93. pl. 160. 121. pl. 201. & 129. pl. 209. Warrant of Attorny may be amended after Error brought . ubi supra . Wills and Testaments . A Will without a Seal is good to pass land . 206. pl. 245. Witnesses . In Debt upon the Statute of 5 Q. ca. 9. it was resolved , that it sufficeth to leave a note of the process at the house of the witness ; and though there be not a reasonable sum delivered to him for costs and charges , according to the distance of place , as the Statute saith , yet if he accept it , he is bound : he that will maintain an Action upon this Statute , ought to aver that he was damnified . 18. 43. A Lawyer of Counsel may be examined upon oath as a witness to the matter of agreement , not to the validity of the assurance or to the matter of Counsel . And in examining of a witness , Counsel cannot question all the life of the witness , as whether he be a whoremaster , &c. but if he hath done any notorious fact , which gives just exception against him , this may be taken . 83. pl. 135. Writ & Abatement of it . If a man be living at the day of Nisi prius , and die before the day in bank , the writ shall not abate . 65. pl. 101. FINIS .