Selected quad for the lemma: act_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
act_n	command_n	command_v	lawful_a	2,968	5	9.4987	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A49392	Reports in the Court of Exchequer, beginning in the third, and ending in the ninth year of the raign of the late King James by the Honourable Richard Lane ... ; being the first collections in that court hitherto extant ; containing severall cases of informations upon intrusion, touching the King's prerogative, revenue and government, with divers incident resolutions of publique concernment in points of law ; with two exact alphabeticall tables, the one of the names of the cases, the other of the principall matters contained in this book.	Lane, Richard, Sir, 1584-1650.; England and Wales. Court of Exchequer.	1657 (1657)	Wing L340; ESTC R6274	190,222	134

the profit and comoditie of his Master the Plantiff and it is shewed that he intended to deceive his Master and the Queen also and where a wrong is made to another in my name whereby I am damnified there I shall have an Action and if in this case the Defendant had left the goods in the ship then the Plantiff had suffered no loss and therefore his taking them out of the ship is the cause which occasions the loss to the Plantiff and therefore it is reasonable that he should render us damages and he vouched the writ of deceipt in F. N. B. and divers cases therein put and 21. E. 4. that if a man bring an Action in London and the Defendant to delay my Action brings a writ of priviledge be shall have an Action upon the case and he vouched the like case to be adjudged in the Kings Bench 40. Eliz. between Byron and Sleith upon an Action of the case brought by the Defendant because he sued a scire facias against a Bail in a Court where he ought Bromley Puisne Baron said that the Plantiff shall have judgement First it shall be intended that the Plantiff was beyond the Seas at the time in respect of the Minute of time between his departure and the landing of the goods Secondly he said that it needs not be expressed that the Master had left moneys wherewith to discharge the custome for it shall be intended in this case because the Defendant had taken upon him to meddle according to the appointment of the Plantiff wherefore c. and so he departed to the Parliament Altham second Baron agreed that the Statute for the paying of custome appointeth that if the goods of any man be laid upon the land the custome not paid that then the goods shall be forfeited and therefore here he shall not lose his goods by reason of this Act made by the Defendant so that if the Defendant be a meer stranger to the Plantiff without question an Action of Trespass lies for this taking then in the principal case by reason of this trust an action of the case lies and if a stranger drives my Cattle upon your land whereby they are distrained by you I shall recover against the stranger for this distress by you in an action against him for by reason of this wrongful Act done by him I suffer this loss and he vouched 9. E. 4. fo 4. a case put by Jenney Snig third Baron to the contrary I agree that if a stranger put in my Cattle to the intent to do hurt to me a Trespass lieth but here is an Action upon the case and that lies not because it appears not sufficiently that the Defendant was servant to the Plantiff to Merchandise but generally his servant and therefore an Action of Trespas rather lieth generally for in an Action upon the case he ought to hit the bird in the eye and here it is not shewed that the goods were for the same voyage nor that the Defendant is a Common servant in this imployment also the Declaration is not good because he doth not shew that the Defendant had moneys or means from the Master to pay the custome and he is not compellable to lay out money of his own besides he cannot dispose of the goods until the custome be paid wherefore c. Tanfield chief Baron there are two matters to be considered in the case First if here you charge the Defendant as your special servant or if as a stranger Secondly if as a stranger then if an Action upon the case or a general Action of Trespass lieth and as to the first if in this case you have shewed him to be such a servant as a Bayliff or Steward and he hath misbehaved himself in such a thing which belongs to his charge without any special trust an Action upon the case lieth but if he be taken to be your general servant then he is to do and execute all Acts and lawful commands and against this general servant if his Master command him to do such a thing and he doth it not an action upon the case lieth but yet this is with this diversitie viz. if the Master command him to do such a thing which is in his convenient power or otherwise not and therefore if I command my servant to pay 100. l. at York and give him not money to hire a horse an Action lieth not for the not doing of this command but if I furnish him with ability to do it and then he doth it not an action lieth well against him and in the principal case it is shewed that the Plantiff appointed the Defendant being his servant generally to receive c. and to pay all customes c. then it is examinable if the Plantiff sufficiently inabled this Defendant to do this command and the wo●ds of the command seem to be all one as if he had commanded the Defendant to receive the Wares paying the custome and therefore the Defendant needs not to receive them if he had not money to pay for the custome and so it is not within the Plantiffs command to receive the Wares and then if he doth receive them not paying for the customes this is another thing then the command an● therefore it is no misfeazance as my particular servant but being my general servant he had done another thing then I commanded him whereby I receive some damage and by consequence is in case of a stranger for if my general servant who is not my horse keeper take my horse out of my pasture and ride him this is a thing which he doth not as a servant but as a stranger then as to the second matter the Defendant being as a stranger if an action upon the case or a general action of Trespass lieth for this is as if my general servant take my horse and rides him without my appointment a general action of Trespass lieth but if by reason of his riding my horse die an action upon the case lieth and so it is in the case here the Defendant had laid the goods upon the land by reason whereof they were forfeited it is collourable that an Action upon the case lieth but if a man take my goods and lay them upon the land of A. a Trespass or an Action upon the case lieth against him who took them by the better opinion but it is good to be advised and it was adjourned and at another day Altham Baron said that an Action upon the case or a Trespass generally did lie well enough and he vouched F. N. B. that if a Bailiff arrest one without any warrant I shall have Trespass generally or an Action upon the case at my election and so in the like case 18. E. 4 fo 23. Trespass or Action upon the case lies also by F. N. B. if Executors be outed by the Testators Lessor there they may have an Action upon the case if they will or Trespass generally and in

debased and this at no place but at Northampton and Anwick and this proclamation was the cause wherefore the Merchant in 43. Assise 38. was punished for using the slight to abate the prices and for presidents in this matter of Impost there are many of antiquitie and first for Wines in 16. E. 1. the custome for a Tun of Wine was 4. s. and 21. and 24. E. 3. it was increased to and 12.13 14. of H. 8. it was increased to 17. s. the Tun and after in the 4th of Mary it was increased to 4. Marks and as it appears by the Records of this Court it was answered upon accompt for all this time according to that rate and it is apparant that no act of Parliament gave this to the King but that it was imposed by his absolute power and shall it now be doubted if it be lawful God defend Prisage that the King shall have one Hogs-head before the Mast and another Hogs-head behinde is not given to the King by any Statute but was only an Impost by the Kings power the Impost upon cloathes in 31. E. 1. was two shillings for a Scarlet and 18. d. for other cloathes in Grain and after in the 37th year of E. 3. it was raised again and in the 37. E. 3. an Act was made for the length of cloathes in the 33. H. 8. it was raised again and in the time of Queen Mary because that the making of so many cloathes made the Impost of Wooll to be of so small value therefore the Impost of every cloath was raised by her to a noble and in the first of Eliz. an Impost was imposed for the overlength of cloathes and it appears in 30. E. 3. that the Impost of one Cloath was for a stranger 2. s. 8. d. and for a denizen 1. s. and all for cloathes another Impost was for Woolfels and Leather the 31. E. 1. it was for Wooll half a Mark for a Sack and after that to 10. s. and in the time of E. 3. to 20. s. and after to 40. s. and after to 3. l. and so of Woolfels and Leather and as the benefit and price of commodities did rise so was the Impost raised and no Act of Parliament for the first imposing and increase thereof and so much for Woolfels and Leather Now for allom upon every kintal of allom was imposed 3. s. 4. d. which was answered upon accompt and in the case of Smith it was not doubted if it shall be paid as here it is but if it were contained in Smiths Patent or not the imposition imposed upon Coles now the 1. s. increase is paid the imposition upon Tobacco was never doubted to be unjust as this is and so much for presidents And now for Statutes the Statute of Magna Charta cap. 30. which was objected that thereby all Merchants may have safe c. to buy and sell without all Tolluets but there is a saving viz. by the antient and old customs the Statute of Articuli super chartas cap. 2. hath a saving in the end of it that the King or his Councel did not intend thereby to increase the antient prices due and accustomed so are all the other Statutes of Purveyors the Statute of the 45. E. 3. cap. 4. which hath been so much urged that no new imposition shall be imposed upon Woolfels wooll or Leather but only the custome and subsidie granted to the King this extends only to the King himself and shall not binde his successors for it is a principal part of the Crown of England which the King cannot diminish and the same King 24. of his Raign granted divers exemptions to certain persons and because that it was in derogation of his state imperial he himself recalled and adnulled the same as to that which was objected that the Defendant had paid poundage granted by the Statute of the first to the King that is nothing to this purpose for that is a subsidie and not a custome for when any imposition is granted by Parliament it is only a subsidie and not a custome for the nature thereof is changed and the impost of Wine is paid over and above the poundage and so should it be here and whereas it was objected that if it were in the time of war it is sufferable but in peace not this seems no reason for the King cannot be furnished to make defence in war if he provide not in peace and the provision is too late made when it ought to be used and as to that which was said that the subject ought to have recompence and valuable satisfaction it seemeth to me that he had for he hath the Kings protection within his Ports and his safe conduct upon the land and his defence upon the Sea and all the Ports of the Realm belong to the King and in this Court there is a president where one in the time of Queen Eliz. claimed to have a Port to himself as his own and it was adjudged that he could not for it belonged to the Queen and it could not be severed and the King only shall have the customes for landing throughout all the land and in the 17. of E. 3. there is a notable president where he reciteth all the benefits which the subject had in his forraign Traffick by the Kings power and protection and therefore he imposed a new Impost the writ of ne exeat Regnum comprehends a probabition to him to whom it is directed that he shall not go beyond the Seas and this may be directed at the Kings pleasure to any man who is his subject and so consequently may he prohibite all Merchants and as he may prohibite the persons so may he the goods of any man viz. that he shall export or import at his pleasure and if the King may generally inhibite that such goods shall not be imported then by the same reason may he prohibite them upon condition or sub modo viz. that if they import such goods that then they shall pay c. and if the general be lawful the particular cannot be unjust and the words in the writ of ne exeat Regnum viz. et quam plurima nobis et Coronae nostrae praejudicialia ibidem prosequi intendis are not traversable by the subject but he ought dutifully to obey his Soveraign as to that which is said that this command to the Treasurer is not sufficient under the great Seal that is otherwise for before the Statute of R. 2. for matter of customes no command was directer to the Treasurer but alwayes the King signified his pleasure to his customers under his privie Seal and this gave authoritie to them to collect customes and the same authoritie is given now to the Treasurer and derived from him to the customers as to that which is said that the conclusion is evil because it is in contempt of the King without doubt it is a contempt for the King may inhibit Traffick into any part of

Woods case in Cook lib. 4. Tanfield chief Baron it is true that the issue should be better if it were general not guiltie of the Trespass aforesaid but yet it is good enough in this case for the special words comprehend as much as the words not guiltie of the practice and agreement aforesaid c. and the word Practizatione comprehends aswel the subsequent Acts of execution as the precedent combination and therefore Tantamounts a general issue and it was good by the Court and as to the action Altham Baron conceived that it lieth although it be for a lawful cause for the Law abhoreth fraud and conspiracy as if two conspire to vex me for my land by suit an action lieth F. N. B. yet it is lawful for every man to sue me without title and he vouched 16. Assise and here it is laid that the Defendants indeavoured to make the Plantiff forfeit his goods which are worth 5000. l. and this is reasonable that it should lie and 9. E. 2. Fitz. discents 52. is our case directly upon the matter and therefore it seemeth to me that it lies Tanfield chief Baron said that 9. E. 2. crosseth this case in part and yet he thought that the action lies to which Snig agreed and it seemed the cases of appeal put by Godfrey did lie well enough without aid of the Statute of W. 2. if there be such a conspiracy Tanfield chief Baron accordingly if it be legally thought without cause yet if without conspiracy the action lieth not for it as it appears in Owen Woods case Cook lib. 4. and in all cases where strangers have nothing to do with the suit brought for the conspiracy and yet combine with the Plantiff in the suit an action upon the case lieth for this vexation and judgement was entred for the Plantiff by the Court. An inquisition for the King was returned here and it was found that Fleet-wood the Kings debtor for his office of receiver for the Court of Wards did purchase a certain Term and interest of and in the rectory of Yeading for divers years then to come and that being so possessed he became indebted to the King and that this term is now in the hands of the Lady Edmonds and by colour of this inquisition the land is extended for the Kings debt Harris Serjeant moved that this inquisition is insufficient to extend the land but good to sell a term and he vouched Palmers case Cook lib. 4. to which the Court inclined but it was adjourned If a Bishop becomes indebted to the King for a subsidie and dieth his successors shall not be charged upon the lands of the Bishoprick but the executors of the predecessor or his heir and if they have nothing the King shall lose it as chief Baron Tanfield said which the Court granted upon the motion of Bridgman for the Bishop of Saint Davids Trallops case A Scire facias issued against Trallop the father and Trallop the son to shew cause wherefore they did not pay to the King 1000. l. for the mean profits of certain lands holden by them from his Majesty for which land judgement was given for him in this Court and the mean rates was found by inquisition which returned that the said mean profits came to 1000. l. upon which inquisition this scire facias issued whereupon the Sheriff returned Trallop the father dead and Trallop the son now appeared and pleaded that he took profits but as a servant to his father and by his commandment and rendred an accompt to his father for the said profits and also the judgement for the said land was given against his father and him for default of sufficient pleading and not for the truth of the fact and he shewed the Statute of the 33 H. 8. cap. 39. which as he pretended aided him for his equitie whereupon the King demurred Hitchcock for Trallop seemed that the Statute did aid him by equity and he moved two things the one that if here be such a debt that the Statutes intends to aid it the other if the Defendant hath shewed sufficient matter of equitie within the intent of the Act and he thought that it is such a debt as the Statute will aid for although that here be au uncertainty of the time of the judgement given for the King that being reduced to a certainty by the inquisition after it shall be within the intent of the Statute for id certum est quod certum reddi potest and the words of the Statute are if any judgement be given for any debt or duty c. and here although that there was no certainty unto how much these mean rates extended at the time of the judgement given yet it is clear that it was a duty at the time of the judgement and then it is within the Statute also he said that the words in the proviso of that Statute explain that the intent of the makers of the Act was so for the words are for any thing for which the partie is chargable and the mean rates are a thing for which he is chargable see Cook lib. 7. fo 20. and the Lord Andersons case there fo 22. as to the point of equitie there seem to be two causes First he shewed that he was but a servant to his father and had given an accompt to him Secondly the judgement was given against him upon a point of mispleading Tanfield chief Baron said that the matter in equitie ought to be sufficiently proved and here is nothing but the allegation of the partie and the demurrer of Mr. Attorney for the King and if this be in Law an admittance of the allegation and so a sufficient proof within the Statute it is to be advised upon and for that point the case is but this a scire facias issueth out of this Court to have Execution of a recognizance which within this Act ought by pretence and allegation of the Defendant to be discharged for matter in equitie and the Defendant pleads his matter of equitie and the King supposing this not to be equity within this Statute demurreth in Law whether that demurrer be a sufficient proofe of the allegation within the Statute or not and it was adjourned Trin. 7. Jac. in the Exchequer Doillie and Joiliffs case again Trin. 7. Jac. in the Exchequer CRessey for the Plantiff said that the Plea in Bar is not good because the Defendant justified by force of a Capias ad satisfaciendum and pleads no return thereof and moved that it is not justifiable without returning of the writ but the Court seemed the plea to be good notwithstanding that but if it were a mean process then it ought to be pleaded to be returned see Cook lib. 5. Hoes case fol. 19. according to this diversitie Tanfield chief Baron thought that the Plantiff shall recover for first the writ of error here is not a writ but a commission and therefore false lattin shall not abate it as it hath been

of 99. years is agreed to be given Secondly if there be such an imployment of this land as the Statute requireth admitting the lease was not given Thirdly if the livery upon the Queens Lessee for years be good and I hold that the Fee is not given to the Queen Secondly the land is not imployed c. admitting that it was given Thirdly that the Feofment here is not good and as to the case at Bar the Feoffees may enter I doubt not of that because there is not any thing found but that it was imployed to the uses intended for 99. years Secondly if it were not imployed according to the condition after 1. Ed. 6. yet they cannot enter for themselves were parties to the Art which did prohibit it as 34. H. 8. Dyer 52. the Queen gives licence that Belmelt shall be transported notwithstanding any Statute made or to be made if after it be prohibited the licence is determined because the Patentee himself was a partie to such Statutes Secondly it is said in Addams and Lamberts case that a superstitious devise or other estate upon condition is within the Statute because the Patentee was partie thereunto Thirdly it is said in the said case that a superstitious devise or other estate upon condition is within the Statute because it is penal and compulsorie for the maintenance of a thing prohibited by the Law and also there it is said that there is a proviso towards the end of that Act that it shall not be Lawful by reason of any remainder or condition for any man to claim any lands c. for the not doing or finding of any such Priest as to the other point which was moved at Bar I hold that the use doth not arise upon the words subsequent and if they do not re-enter that then the land shall go to the use of the four Feoffees to the intent aforesaid is not a mis-ordering nor an imployment Secondly these words to the intent do not raise any use but only a confidence and trust reposed in the Feoffees Doctor and Student 94. for the first point therefore he held that there is no superstitious gift of the Fee-simple and if there were it is not imployed c. and therefore it is not given by the Statute of 1. Ed. 6. to the Queen and touching that we are to consider the Statute Indenture and the Schedule and there is not a word that after 99. years the land shall finde a Priest but the money and the land is not given but the money as in the Dean of Pauls case 22. Eliz. Dyer 368. if land be given to finde a Priest with part of the profits thereof those profits are only given to the King by this Statute and not the land but that belongs to the Dean and Chapter also the Schedule is if then it may be lawful and therefore if it were not then lawful the money is not given and it is like to the case where I make a lease for 21. years if I do allow of it before Michaelmas and before Michaelmas do not allow of it this is a void lease and so if I give land to the use of Westminster School if the Dean will enter into a Recognizance c. and if he will not enter into a Recognizance it is no gift like to the case 15 H. 7. a grant of Annuitie if such a thing be done c. secondly as to the imployment the lease is only found to be imployed and the imployment of the lease is no imployment of the Fee which was not given until the Term was expired and if the gift be not superstitious the imployment ought not to be superstitious and yet as it is said in Adams case there ought to be an imployment to intitle the Queen as the case there is if one gives the Mannor of D. and S. to superstitious uses the Queen shall have the lands out of the hands of the Feoffee and if land be given to finde a Priest in the Church of D. for 20 years and after to finde one in S. for 21. years and before the expiration of the first Term the Statute is made it seems the Queen shall have only the first Term because there is no imployment of the second Term within the Statute 5. Ed. 4.20.15 Ed. 3. Execu 63. I agree those cases for land or rent issue from a seisin 30. Ed. 3.12 in a quare impedit 5. Ed. 6. Benlowes a devise to 8. to the uses and intent that the Feoffees with the profits shall finde a Priest whilst the Law of this Realm will suffer it and if the Law will not suffer it then to the use of three of the poorest of the Parishes adjoyning by all the Iudges this is not within the Statute and as to the last point it seems that the Feofment is good and the interest of the Queen is no impediment which if it be not then there is no question as Dyer 20. Eliz. 363. Tenant in tail makes a feofment the servants of the Lessee for years being upon the land and livery is made and after the Lessee for years agrees saving his Term this is a discontinuance 14. Ed. 4.2 3. and 4. Ph. et M. Dyer 139. possession shall not be gained from the Queen but by matter of Record 4. Assises 5.21 Assises 2.8 H. 4.16.1 H. 7. no livery upon the Kings possession it may be devised by the heir or conveyed by bargain and sale or by fine from him and the Kings estate in reversion doth not priviledge the estate in possession as it is 23. Ed. 3.7 a disseisor conveys land to the Queen who grants for life and the disseisee shall have a writ of entrie against the Queens Lessee for life by the opinion of Thorp Cook lib. 4.55 a disseisor makes a lease for life the remainder to the King a recovery of the land against Tenant for life will defeat the Kings remainder 7. Rich. 2. aide of the King 61. Tenant in tail grants the land to the King with warranty and the King makes a lease for life if the issue recover in a Formedon the Kings estate is defeated and I was of Councel in the Court of wards in a case which was Pasch 43. Eliz. betwixt Chackston and Starkey for the Wardship of the heir of Clifford and it was this the Ward at full age tendred his livery and had six moneths to sue it and within the six moneths made a Feofment and after died before livery sued in this case the livery and seisin was void and it is all one as if no tender had been made for the Queens possession was priviledged the second point was that one being in Ward to the King had a reversion in Fee expectant upon an estate for life and before livery sued made a Feofment in Fee this makes a discontinuance of the reversion notwithstanding the Kings interest which he had in reversion for the Wardship which case is like to the case