[294 a] same reason. Also if the party, or any other, do move any man to attend, or be in readiness to appear, upon a tales,if there shall be one de circumstantibus, that is also punishable, for the And in that case it was also agreed, that if a witness depose that the defendant did persuade a juror to appear, and to do him reasonable favor, or words to the like effect, that this is no sufficient proof in criminals, because the court must know the very words, to judge of their force and effect. (1) (1) A stranger is punishable for labouring a juror to appear and act according to his conscience. See Bac. Abr. tit. Juries, M. 3, where the doctrine of the above case is recognised. Quare imped. Nottingham. Waller. in a lease an LONDON US. THE CHAPTER OF SOUTHWELL. A grant shall be taken in a reasonable sense, and not strained to things unusual. By a lease of divers parcels of a prebend 'with all the commodities, emoluments, JOHN LONDON brought a quare imped. against the chapter of the collegiate church of the blessed Virgin Mary By what words of Southwell, of the vicarage of Southwell, and declared, advowson will that one Jones was seised of the prebend of Normanton, in the same collegiate church, to which the advowson of the said vicarage did and doth belong in fee, and present not pass. Winch. Ent. 810 or 812. ed, &c.; and then brings down the prebend unto Robert [303 a] Abbot, clerk, and then shows, that Abbot did demise the prebend ad quam, to him for years yet enduring, and that the church became void, and the chapter of Southwell disturbed him. The chapter pleaded, that Robert Abbot did not demise the prebend unto the plaintiff, modo et forma prout, &c. [304] Goldsb. 42. Co. The jury find that Abbot made him two leases of one date, of divers several parcels of the said prebend, with these general words in the conclusion of one of the leases, cum omnibus commoditatibus, emolumentis, proficuis et advantagiis, cum pertinentiis eidem prebend. spectant. seu aliquo modo pertinen; and then concludes, that if the advowson or vicarage pass by this lease, that then Abbot did demise the prebend, &c.; and if not, then è contra; which was a conclusion somewhat imperfect, yet served well enough. The court adjudged that the advowson did 3 Car. 163. not pass by the lease aforesaid, and the said words. The 1 Leo. 191. words are four: commodities, emoluments, profits and L. 374. b. Ante advantages,' to the prebend belonging; all which four 43. Margine. words are of one sense and nature, implying things gainful, which is contrary to the nature of an advowson regularly; yet an advowson may be yielded in value upon a voucher, and may be assets in the hand of an executor. But words or grants shall be construed according to a reasonable and easy sense, not strained to things unlikely or unusual. And therefore 14 H. 8. 1, if a man grant all his woods and trees, appletrees will not pass. And 20 Ass. 9, common in gross will not pass by the words terres, tenements, past. et pastur., yet it is a feeding and pasturage; and 44 E. 3. 33, an appropriation, nor the advowson of it, will not pass by the name of an advowson, yet an advowson will be contained under the name of a tenement. And therefore 33 E. 3. the king gave license to purchase lands and tenements in mortmain to the value of an hundred shillings allowed for advowsons, and the essoin is de placito terra. And 15 Eliz. Dyer 322, advowson passed by name of all hereditaments lying where the Post. 308. 2 3 Leo. 101, Leo. 80. [304 a] church lies; but the words here, commodities, &c., it is to be understood of those things whose nature is gainful and commodious, as commons of feed, estovers and the like that belong to land, and make it more profitable and commodious. And therefore, 39 H. 6., the king granted that monks should have all their possessions of the abbey in the vacation for their sustentation; ruled that they should not have the advowsons, because no sustentation arose from them. (1) (1) By a deed of a specific piece of land, carved out of a larger piece held by the grantor, with all the privileges and appurtenances thereunto belonging,' a way, not annexed to the land by any natural or legal necessity, but as a matter of ease and convenience only, does not pass. 17 Mass. 443, Grant v. Chase. See also 1 Bos. & Pul. 371, Whalley v. Thompson. As to what things may be said to pass as appendant, appurtenant, or incident, see Bac. Ab. Grants 3, 4. Mich. 18. Jac. Obligat. Suf Mesme ca. 1 Ro. 429. LAMB VS. THOMPSON. If the condition of an obligation be that the obligor shall not assist J. S. in any suit to be prosecuted against the obligee, yet the obligor may, without breach of the condition, join J. S. in prosecuting a writ of error upon a judgment recovered by the obligor against them jointly. EDMUND LAMB brought an action of debt against Richfolk. Hutt. 40. ard Thompson, upon an obligation of forty pounds; the condition was, that if the said Richard Thompson should at any time or times, after the making of the said obligation, be any way or means aiding or assisting unto Thomas Elmy, or any other person or persons, for him the said Thomas Elmy, in any action or actions, suits, vexations, troubles, hinderances or molestations, to be commenced or prosecuted against the said Edmund Lamb, his wife, children and assigns, then this obligation shall be void. The plaintiff by replication assigns for breach, that he brought an action of trespass, before that obligation, against the said Elmy and the defendant Thompson, and that he had judgment upon it for eight pounds damages against Elmy, and two pence damages against the defendant, and eight pounds cost against them both; and that thereupon, after the making of the obligation, Elmy and the defendant brought a writ of error, and so hindered [304 b] him of the exécution upon his judgment; whereupon the defendant demurred; and it was judged for him that it was no breach; for though the defendant might bind himself not to bring a writ of error, expressly, yet upon such general words as these are, whereupon the law may make construction, it shall never enforce it so; for the apparent sense of the condition is, that he should not maintain Elmy in any his proper suits against the plaintiff, which is just and reasonable; but it hath no reason that he should be barred to defend himself, by joining with Elmy, against unjust proceeding of the plaintiff against him and therefore if the plaintiff, after verdict against Elmy and the defendant, should have released, and yet 2 Cr. 117. 6 Co. have taken judgment and execution, the defendant might have joined with Elmy in an audita querela; for it is his own defence against an unjust suit, and so is this writ of error. 25. b. POLAND VS. MASON. [305] Case. The words, I charge him with felony for taking money out of the pocket of H. ton, 38. Mesme 1 Brnl. 18. 38. Post. 326. m. c. I charge him with felo POLAND brought an action of the case against Mason, Parolls. Hutfor saying, I charge him (meaning the plaintiff) with Ca. 1 Roll. 73. felony, for taking money out of the pocket of Henry 1 Ro. 43. 2 Ro. Stacy.' Upon not guilty, the verdict was found for the R. 342. Hutt. plaintiff, yet the judgment was given against him. The reason was double: he doth not affirm that he is a felon, ny,' Latch. 175. Jones, 302. but he doth only say, that he doth charge him with felony, 2 Cro. 312, 315, which he may lawfully do in some case, though he did 36. Cro not the fact; as if a felony were done, and the common 277. 1 Cro. 277. Pop. 210. Benl. fame were that he did it, any one that suspects him, may 202. Hale's pl. charge him with it. The other reason was, because these words single do but suppose it felony, and that whereby he would warrant the words is laid down, which, for ought appeareth to the court, might be but a trespass. And though he chargeth it to be a felony, yet, in ambigui 890. Cr. Car. Cr. 91. [305 a] ities, the court shall follow the mildest sense; as in the case, 'he is a thief, for he hath stolen my trees;' yet there is stealth both in the words, and in the reason of the words. (1) Ant. 77. (1) See ante page 6, n. (1.) Post. 326. m. c. Hutt. 41. Ant. POWEL vs. WINDE. POWEL, an attorney, brought an action upon the case 2. Hartley hath against Winde, for these words; I have matter enough found forgery against him, against him, for M. Hartley hath found forgery against &c. 'him, and can prove it against him.' And it was judged against him; for there was no certainty whereof the forgery was. (1) |