less absolute than that of the Lords It doth not appear but that this Commitment was for breach of priviledge but nevertheless if it were so this Court may give relief as appears in Sir John Benions case before cited for the Court which hath the power to judge what is Priviledge hath also power to judge what is Contempt against Priviledge If the Iudges may judge of an Act of Parliament a fortiori they may judge of an Order of the Lords 12 E. 1. Butlers case where he in Reversion brought an Action of Wast and died before Iudgment and his Heir brought an Action for the same Wast and the King and the Lords determined that it did lye and commanded the Iudges to give Iudgment accordingly for the time to come this is published as a Statute by Poulton but in Ryley 93. it appears that it is only an Order of the King and the Lords and that was the cause that the Iudges conceived that they were not bound by it but 39 E. 3. 13. and ever since have adjudged the contrary If it be admitted that for breach of Priviledge the Lords may commit yet it ought to appear on the Commitment that that was the cause for otherwise it may be called a breach of priviledge which is only a refusing to answer to an Action whereof the House of Lords is restrained to hold plea by the Statute 1 H. 4. And for a Contempt committed out of the House they cannot commit for the word Appeal in the Statute extends to all Misdemeanors as it was resolved by all the Iudges in the Earl of Clarendons case 4 Julii 1663. If the Imprisonment be not lawful the Court ought not to remand to his wrongful Imprisonment for that would be an act of Injustice to imprison him de novo Vaughan 156. It doth not appear whether the Contempt was a voluntary act or an omission or an inadvertency and he hath now suffered five months Imprisonment False Imprisonment is not only where the Commitment is unjust but where the deteynor is too long 2 Inst 53. In this case if this Court cannot give remedy peradventure the Imprisonment shall be perpetual for the King as the Law is now taken may Adjourn the Parliament for ten or twenty years But all this is upon supposition that the Session hath continuance but I conceive that by the Kings giving his Royal Assent to several Laws which have been enacted the Session is determined and then the Order for the Imprisonment is also determined Brook tit Parliament 36. Every Session in which the King signs Bills is a day of it self and a Session of it self 1 Car. 1. cap. 7. A special Act is made that the giving of the Royal Assent to several Bills shall not determine the Session 't is true 't is there said to be made for avoiding all doubts In the Statute 16 Car. 1. cap. 1. there is a Proviso to the same purpose And also 12 Car. 2. cap. 1. 11. R. 2. H. 12. By the Opinion of Coke 4 Inst 27. the Royal Assent doth not determine a Session but the Authorities on which he relies do not warrant his Opinion For 1. In the Parliament Roll 1 H. 6. 7. it appears that the Royal Assent was given to the Act for the Reversal of the Attainder of the Members of Parliament the same day that it was given to the other Bills and in the same year the same Parliament assembled again and then it is probable the Members who had been attainted were present and not before 8 R. 2. n. 13 is only a Iudgment in case of Treason by virtue of a power reserved to them on the Statute 25 E. 3. Roll Parliament 7 H. 4. n. 29. and is not an Act of Parliament 14 E. 3. n. 7 8 9. the Aid is first entred on the Roll but upon condition that the King will grant their other Petitions The inference my Lord Coke makes that the Act for the Attainder of Queen Katherine 33 H. 8. was passed before the determination of the Session is an Error for though she was executed during the Session yet it was on a Iudgment given against the Queen by the Commissioners of Oyer and Terminer and the subsequent Act was only an Act of Confirmation but Coke ought to be excused for all his Notes and Papers were taken from him so that this book did not receive his last hand But it is observable that he was one of the Members of Parliament 1 Car. 1. when the special Act was passed And afterwards the Parliament did proceed in that Session only where there was a precedent agreement betwixt the King and the Houses And so concluded that the Order is determined with the Session and the Earl of Shaftesbury ought to be discharged _____ argued to the same effect and said that the Warrant is not sufficient for it doth not appear that it was made by the Iurisdiction that is exercised in the House of Peers for that is coram Rege in Parliamento So that the King and the Commons are present in supposition of Law And the Writ of Error in Parliament is Inspecto Recordo nos de Consilio advisamento Dominorum Spiritual ' Temporalium Commun ' in Parliament ' praed ' existen ' c. It would not be difficult to prove that anciently the Commons did assist there And now it shall be intended that they were present for there can be no averment against the Record The Lords do several acts as a distinct House as the debating of Bills enquiring of Franchises and Priviledges c. And the Warrant in this case being by the Lords Spiritual and Temporal cannot be intended otherwise but it was done by them in their distinct capacity And the Commitment being during the pleasure of the King and of the House of Peers it is manifest that the King is principal and his pleasure ought to be determined in this Court If the Lords should Commit a great Minister of State whose advice is necessary for the King and the Realm it cannot be imagined that the King should be without remedy for his Subject but that he may have him discharged by his Writ out of this Court This present recess is not an ordinary Adjournment for it is entred in the Iournal that the Parliament shall not be assembled at the day of Adjournment but adjourned or prorogued till another day if the King do not signifie his pleasure by Proclamation Some other exceptions were taken to the Retorn First That no Commitment is retorned but only a Warrant to the Constable of the Tower to receive him Secondly The Retorn does not answer the mandate of the Writ for it is to have the body of Anthony Earl of Shaftesbury and the Retorn is of the Warrant for the imprisonment of Anthony Ashly Cooper Earl of Shaftesbury Maynard to maintain the Retorn The House of Lords is the supream Court of the Realm 'T is true this Court is superiour to all Courts
this whole Court in the case of Barnadiston and Soames that the Action for the double Retorn could not be brought in this Court before the Parliament had determined the right of the Election lest there should be a difference between the Iudgments of the two Courts When a Iudgment of the Lords comes into this Court though it be of the reversal of a Iudgment of this Court this Court is obliged to execute it but the Iudgment was never examined or corrected here In the case of my Lord Hollis it was resolved that this Court hath no Iurisdiction of a misdemeanour commited in the Parliament when the Parliament is determined the Iudges are Expositors of the Acts and are intrusted with the lives liberties and fortunes of the Subjects And if the Sessions were determined the Earl might apply himself to this Court for the Subject shall not be without place where he may resort for the recovery of his liberty but this Session is not determined For the most part the Royal Assent is given the last day of Parliament as saith Plow Partridges case Yet the giving of the Royal Assent doth not make it the last day of the Parliament without a subsequent Dissolution or Prorogation And the Court Iudicially takes notice of Prorogations or Adjournments of Parliament Cro. Jac. 111. Ford versus Hunter And by consequence by the last Adjournment no Order is discontinued but remains as if the Parliament were actually assembled Cro. Jac. 342. Sir Charles Heydon's case so that the Earl ought to apply himself to the Lords who are his proper Iudges It ought to be observed that these Attempts are primae Impressionis and though Imprisonments for Contempts have been frequent by the one and the other House till now no person ever sought enlargement here The Court was obliged in Iustice to grant the Habeas Corpus but when the whole matter being disclosed it appears upon the Return that the case belongs ad aliud examen they ought to remand the party As to the limitation of the Imprisonment the King may determine his pleasure by Pardon under the Great Seal or Warrant for his discharge under the Privy Seal as in the case of Reniger Fogassa Plow 20. As to the Exception that no Commitment is returned the Constable can only shew what concerns himself which is the Warrant to him directed and the Writ doth not require him to return any thing else As to the Exception that he is otherwise named in the Commitment then in the Writ the Writ requires the body of Anthony Earl of Shaftesbury quocunque nomine Censeatur in the Commitment The Court delivered their Opinion and first Sir Thomas Jones Justice said such a Retorn made by an ordinary Court of Iustice would have been ill and uncertain but the case is different when it comes from this high Court to which so great respect hath been paid by our Predecessors that they deferred the determination of doubts conceived in an Act of Parliament until they had received the advice of the Lords in Parliament But now instead thereof it is demanded of us to comptroll the Iudgment of all the Peers given on a Member of their own House and during the continuance of the Session The cases where the Courts of Westminster have taken cognizance of Priviledge differ from this case for in those it was only an incident to a case before them which was of their cognizance but the direct point of the matter now is the Iudgment of the Lords The course of all Courts ought to be considered for that is the Law of the Court Lane's case 2 Rep. And it hath not been affirmed that the usage of the House of Lords hath been to express the matter more punctually on Commitments for Contempts And therefore I shall take it to be according to the course of Parliament 4 Inst 50. it is said that the Iudges are Assistants to the Lords to inform them of the Common Law but they ought not to judge of any Law Custom or usage of Parliament The objection as to the continuance of the Imprisonment hath received a plain answer for it shall be determined by the pleasure of the King or of the Lords and if it were otherwise yet the King could pardon the Contempt under the Great Seal or discharge the Imprisonment under the Privy Seal I shall not say what would be the consequence as to this Imprisonment if the Session were determined for that is not the present case but as the case is this Court can neither Bail nor discharge the Earl Wyld Justice The Retorn no doubt is illegal but the question is on a point of Iurisdiction whether it may be examined here this Court cannot intermeddle with the transactions of the high Court of Peers in Parliament during the Session which is not determined and therefore the certainty or uncertainty of the Retorn is not material for it is not examinable here but if the Session had béen determined I should be of Opinion that he ought to be discharged Rainsford Chief Justice This Court hath no Iurisdiction of the cause and therefore the form of the Retorn is not considerable we ought not to extend our Iurisdiction beyond its due limits and the Actions of our Predecessors will not warrant us in such Attempts The consequence would be very mischievous if this Court should deliver the Members of the Houses of Peers and Commons who are committed for thereby the business of the Parliament may be retarded for perhaps the Commitment was for evil behaviour or undecent Reflections on the Members to the disturbance of the affairs of Parliament The Commitment in this case is not for safe custody but he is in Execution on the Iudgment given by the Lords for the Contempt and therefore if he be bailed he will be delivered out of Execution because for a Contempt in facie Curiae there is no other Iudgment or Execution This Court hath no Iurisdiction of the matter and therefore he ought to be remanded And I deliver no Opinion if it would be otherwise in case of Prorogation Twisden Justice was absent but he desired Justice Jones to declare that his Opinion was that the party ought to be remanded And so he was remanded by the Court. Term. Trin. 26 Car. II. 1674. in B. R. Pybus versus Mitford ante 121. THis case having been several times argued at the Bar received Iudgment this Term. The case was Michael Mitford was seised of the Lands in question in Fee and had Issue by his second wife Ralph Mitford and 23. Jan ' 21 Jac. by Indenture made betwéen the said Michael of the one part and Sir Ralph Dalivell and others of the other part he covenanted to stand immediately seised after the date of the said Indenture amongst others of the Lands in question by these words viz. To the use of the Heirs Males of the said Michael Mitford begotten or to be begotten on the body of Jane his wife the
man that shall refuse to accept the Office of Alderman because they are a Court of Record and they may want Aldermen else So he was released It was moved for the Plaintiff that a person named in the simul cum being a material Witness might be struck out and it was granted Keel said That if nothing was proved against him he might be a Witness for the Defendant Clerke Heath EJectione firmae The Plaintiff claims by a Lease from Th. Prin Clerke Objected That Prin had not taken the Oath according to the Act for Vniformity whereupon he produced a Certificate of the Bishop that had only a small bit of Wax upon it Twisd If it were sealed though the Seal be broken off yet it may be read as we read Recoveries after the Seal broken off and I have seen Administration given in Evidence after the Seal broken off and so Wills and Déeds Accordingly it was read Obj. The Church is ipso facto void by the Act of Vniformity if the Incumbent had no Episcopal Ordination So they shewed that Prin was ordained by a Bishop It was likewise proved that he had declared his assent and consent to the Common Prayer in due time before St. Bartholomew's day Then it was urged that the Act does not confirm the Plaintiffs Lessor in this living for that it is not a living with Cure of Souls for it has a Vicarage endowed Twisd If it be a living without Cure the Act does not extend to it Mr. Solicitor The Presentation does not mention Cure of Souls So they read a Presentation of a Rector and another of a Vicar in neither of which any mention was made of Cure of Souls but the Vicars was residendo If both be presentative the Cure shall be intended to be in the Vicar Keeling Why may not both have the Cure Sol. If the Vicar be endow'd the Rector is discharged of Residence by Act of Parliament Twisd Synodals and Procurations are duties due to the Ordinary which Vicars when the Parsonages are impropriated always pay but I question whether they that come into a Church by Presentation to and Institution by the Bishop have not always the Cure of Souls It is true in Donatives where the Ministers do not come in by the Bishops Institution there is no Cure but they that come in by Institution of the Bishop have their power delegated to them from him and generally have Cure of Souls Solic There are several Rectories without Cure Twisd When came Rectories in Morton After the Counsel of Lateran and Vicars came in in the Seventeenth year of King John Moreton Before the Councel of Lateran the Bishop did provide Teachers and received the Tythes himself but since he hath appointed others to the charge and saith accipe curam tuam meam Keeling Twisden It is said so by my Lord Coke but not done Twisden Wherever there is a Cure of Souls the Church is visitable either by the Bishop if it belong to him if to a Lay-man he must make Delegates if to the King my Lord Kéeper does it And where a man comes in by Presentation he is prima facie visitable by the Bishop Keeling I take it that whoever comes in under the Bishops Institution hath the Cure Twisden Grendon's Case is expresly That the Bishop hath the Cure of Souls of all the Diocess and doth by Institution transfer it to the Parson so that prima facie he that is instituted hath the Cure The Vicarage is derived out of the Parsonage and if the Vicar come to poverty the Parson is bound to maintain him Twisd There is an Appropriation to a Corporation the Corporation cannot have Cure of Souls being a body Politick but when they appoint a Vicar he coming under the Bishop by Institution hath Cure of Souls and a Donative when it comes to be Presentative hath Cure of Souls Keeling agreed Twisd We hold that when the Rector comes in by Institution the Bishop hath power to visit him for his Doctrine and his life for he hath the particular Cure but the Bishop the general and that the Bishop hath power to deprive him Abbot Moore THe Plaintiff declares That whereas one William Moore was indebted to him 210 l. and whereas the said William Moore had an Annuity out of the Defendants Lands That the Defendant in consideration that the Plaintiff had agréed that the Defendant should pay so much money to the Plaintiff the Defendant did promise to pay it After a Verdict it was objected in arrest of Iudgment that here was not any consideration and the Court was of that opinion Then the Plaintiff would have discontinued but the Court would not suffer that after a Verdict Sir Edward Thurland moved to quash an Order made by the Iustices of the Peace for one to serve as Constable in Homeby Moreton If a Leet neglect to chuse a Constable upon complaint to the Iustices of Peace they shall by the Statute appoint a Constable Twisd In this case there are Affidavits that there never was any Constable there And I cannot tell whether or no the Iustices of Peace can erect a Constablewick where never any was before if he will not be sworn let them indict him for not executing the Office and let him traverse that there never was any such Office there Keeling Go and be sworn or if the Iustices of the Peace commit you bring your Action of False Imprisonment Twisd If there be a Court Leet that hath the choice of a petty Constable the Iustices of Peace cannot chuse there And if it be in the Hundred I doubt whether the Iustices of Peace can make more Constables then were before High-Constables were not ab origine but came in with Iustices of the Peace 10 H. 4. Keel Morton cont Moreton The book of Villarum in the Exchequer sets out all the Vills and there cannot be a Constablewick created at this day In this case the Court ordered him to be sworn Thurl If they chuse a Parliament-mans Servant Constable they cannot swear him Twisd I do not think the priviledge extends to the Tenant of a Parliament man but to his Servant Blissett Wincott TWo persons committed for being at a Conventicle were brought up by Habeas Corpus Twisd To meet in Conventicles in such numbers as may be affrighting to the people and in such numbers as the Constable cannot suppress is a breach of the Peace and of a persons Recognizance for the good behaviour Note this was after the late Act against Conventicles expired Lee Edwards AN Action upon the Case was brought upon two promises 1. In consideration the Plaintiff would bestow his labour and pains about the Defendants Daughter and would cure her he did promise to pay so much for his labour and pains and would also pay for the Medicaments 2. That in consideration he had cured her he did promise to pay c. Raymond moved in arrest of Iudgment that he did not aver
be unreasonable it ought to be locally circumscribed and confined to the City 17 Ed. 4. 7. there was an Action brought upon the Statute of Labourers for retaining one that was the Plaintiffs retained Servant the Defendant pleaded in abatement that there was no place laid where the Plaintiffs retainer was and this was held a good Plea for that if it were in another County then where the Defendant retained him it was impossible for the Defendant to take notice of a Retainer in another County No more can we take notice who is a City Orphan in the County of Kent Then they have returned a Custom to imprison generally but it should have beén that without reasonable cause shewn they might imprison and the party have liberty to shew cause to the contrary Then I conceive they have returned the Fact as defective as the Custom they say that he marryed her without their consent they ought to have said that he took her out of their custody and your Lordships will not intend that she was in their custody when she was out of the City Offley of the same side and cited 21 Ed. 3. Fitz. Guard 31. and Hob. in Moor Hussey's case 95. 3 Cro. 803. 3 Cro. 689. 1 Cro. 561. In all the cases its returned that they were Free-men of the City Mr. Solicitor North on the same side cited Day Savage's case Mr. Attorney General on the other side said that because it was impossible to give notice to all therefore ex necessitate rei they must take notice at their peril Hales The City has an Interest in the Orphan wherever the Orphan be And for notice he may enquire there is no impossibility of his coming to the knowledge whether she be an Orphan or no therefore if he takes her he takes her at his peril Twisden And for the Fine such a Fine was set in Langham's Case and adjudged good Let a Citizen of London live where he will his Children shall be Orphans Hales Some things are local in themselves some things adherent to the person and follow the person now this is an Interest which follows the person and is transmitted to his Children and the party must take notice of it at his peril Cox St. Albanes A Prohibition was prayed for to the City of London because the Defendant had offered a Plea to the Iurisdiction sworn and it had been refused Hales In transitory Actions if they will plead a matter that ariseth out of the Iurisdiction and swear it before Imparlance and it be refused a Prohibition shall go There was a case in which it was adjudged 1. That upon a bare surmise that the matter ariseth out of the Iurisdiction the Court will not grant a Prohibition 2. It must be pleaded and the Plea sworn and it must come in before Imparlance If all this were done we would grant a Prohibition here It was also agréed in that case that the party should never be received to assign for Error that it was out of the Iurisdiction but it must be pleaded Twisd So in this Court when there is a Plea to the Iurisdiction as that it is within a County Palatine they plead it before Imparlance and swear their Plea Twisden There was a Venire facias returnable coram nobis apud Westm whereas it should have béen ubicunque fuerimus c. yet because the Court was held here it was held to be good Hales I remember it Hales When in an inferiour Court the Venire facias is ad prox Cur ' it is naught because it is uncertain when the Court will be kept But if it be at such a day ad prox Cur. it is good Anonymus A Writ of Error of a Iudgment in White-chappel After the Record was read Hales said the acts of a Court ought to be in the present Tense as praeceptum est not praeceptum fuit But the acts of the party may be in the Preterperfect Tense as venit protulit hic in Cur ' quandam querelam suam And the Continuances are in the Preterperfect Tense as venerunt not veniunt But upon another Exception the Court gave time to move it again Moved for a melius inquirendum to be granted to the Coroner of Kent who had returned an Inquisition concerning the death of one that was killed within the Manor of Greenwich he had returned that he dyed of a Meagrim in his head when he was really killed with a Coach Hales A melius inquirendum is generally upon an Office post mortem and is directed to the Sheriff Twisden But this cannot be to the Sheriff In 22 Ed. 4. the Coroner must enquire only super visum corporis And if you will have a new inquiry you must quash this Indéed a new inquiry was granted in Miles Bartly's case Thurland prayed that the Court being the supreme Coroner would examine the misdemeanor of the Coroner Hales Make some Oath of his misdemeanor because he is a sworn Officer Without Oath we will not quash this Inquisition Newdigate said that in the case of Miles Bartly the inquiry was not Filed and that that was the reason why a new one was granted Hales Let the Coroner attend he must take the Evidence in writing and he should bring his Examination into Court. Daniel Appleford's Case A Writ of Mandamus was directed to the Master and Fellows of New-Colledge in Oxford to restore one Daniel Appleford a Fellow They return that the Bishop of Winchester did erect the Colledge and among other Laws by which the Colledge was to be governed they return this to be one viz. That if a Scholar or other Member of the said Colledge should commit any crime whereby scandal might arise to the Colledge and that it appeared by his own confession or full Evidence of the Fact that then he should be removed without any remedy and that Daniel Appleford a Fellow was guilty of enormous Crimes and was convicted and thereupon removed and they pray Iudgment whether this Court will proceed Jones By this conclusion they rely chiefly upon the Iurisdiction of the Court I will lay this for a ground that this Court hath Iurisdiction in Extrajudicial causes as well as Iudicial 11 Rep. Bagg's case And Appleford hath no remedy but this I will not say that he may not have an Action upon the Case but by that he will not recover the thing but damages And for an Assize if a man be a Corporation sole or head of a Corporation aggregate and be turn'd out wrongfully he may have an Assize but for a man that is but an inferiour Member of a Corporation no Assize lyeth for him because he is but a part of the body politick and doth not stand by himself but must joyn with others and as he cannot have an Assize so he cannot have an Appeal Dyer 209. 11 Rep. in Bagg's case 24 H. 8. 22. 25 H. 8. cap. 19. 4 Inst 340. by these Authorities it appears that we are without
Hales in that case said that upon a penalty you need not make a demand as in case of a nomnine poenae as if I bind my self to pay 20 l. on such a day and in default thereof to pay 40 l. the 40 l. must be paid without any demand Hales If a man cut and carry away Corn at the same time it is not Felony because it is but one Act but if he cut it and lay it by and carry it away afterwards it is Felony Hales If a Declaration be general Quare clausum fregit and doth not express what Close there the Defendant may mention the Trespass at another day and put the Plaintiff to a new Assignment But if he say Quare clausum vocat Dale fregit c. there the conclusion Quae est eadem transgressio will not help Fitz-gerard Maskall ERror of a Iudgment in the Kings Bench in Ireland the general Error assigned Offered 1. That the Eject was brought de quatuor molendinis without expressing whether they were Wind-mills or Water-mills Hales That is well enough The Presidents in the Register are so Secondly That it was of so many Acres Jampnor ' bruer ' not expressing how many of each Cur ' That hath always been held good It was then objected that the Record was not removed upon which it was ordered to stay Pemberton moved for a Prohibition to the Spiritual Court for that they cited the Minister of Mary-bone which is a Donative to take a faculty of Preaching from the Bishop Hales If the Bishop go about to visit a Donative this Court will grant a Prohibition But if all the pretence be that it is a Chappel and the Chaplain hired and the Bishop send to him that he must not Preach without Licence it may be otherwise Twisden Fitzherbert saith if a Chaplain of the Kings Free-Chappel keep a Concubine the Bishop shall not Visit but the King Hales Indeed whether there be all Ornaments requisite for a Church the Bishop shall not enquire nor shall he punish for not Repairing Originally Free-Chappels were Colledges and some did belong to the King and some to private men And in such a Chappel he that was in was entituled as Incumbent and not a Stipendiary To hear Counsel Moved by Stroud for a Prohibition to the Bishops Court of Exeter because they proceeded to the Probate of a Will that contained Devises of Lands as well as bequests of personal things Hales Their proving the Will signifies nothing as to the Land Stroud urged Denton's case and some other Authorities Hales The Will is entire and we are not advised to grant a Prohibition in such case Hales It is the course of the Exchequer in case of an Outlawry to prefer an Information in the nature of a Trover and Conversion against him that hath the Goods of the party Outlawed Parsons Perns TWo Women were Ioyntenants in Fée One of them made a Charter of Feoffment and delivered the Déed to the Feoffee and said to him being within view of the Land Go enter and take possession but before any actual entry by the Feoffee the feoffor and feoffee entermarry And the question was whether or no this Marriage coming between the delivery of the Deed and the Feoffees Entry had destroyed the operation of the Livery within the view Polynxfen It hath not for the power and authority that the Feoffee hath to enter is coupled with an Interest and not countermandable in Fact and if so not in Law If I grant one of my Horses in my Stable nothing passeth till Election and yet the grant is not revocable so till attornment nothing passeth and yet the Deed is not revocable If the Woman in our case had married a Stranger that would not have been a revocation Perk. 29. I shall compare it to the case of 1 Cro. 284. Burdet versus Now for the interest gotten by the Husband by the Marriage he hath no Estate in his own right If a man be seized in the right of his Wife and the Wife be attainted of Felony the Lord shall enter and oust the Husband he gains nothing but a bare perception of profits till Issue had after Issue had he has an Estate for life Where a man that hath title to enter comes into possession the Law doth execute the Estate to him 7 H. 7. 4. 2 R. 2. tit Attornment 28 Ed. 3. 11. Bro. tit Feoffment 57. Moor fol. 85. 3 Cro. 370. Hales said to the other side you will never get over the case of 38 Ed. 3. My Lord Coke to that case saith that the Marriage without Attornment is an execution of the grant but that I do not believe for the attendance of the Tenant shall not be altered without his consent The effectual part of the Feoffment is Go enter and take possession Twisden Suppose there be two Women seized one of one Acre and another of another Acre and they make an exchange and then one of them marries before Entry shall that defeat the Exchange Hales That is the same case So Iudgment was given accordingly Zouch Clare THomas Tenant for life the Remainder to his first second and third son the Remainder to William for life and then to his first second and third son and the like Remainders to Paul Francis and Edward with Remainders to the first second and third son of every one of them William Paul Francis and Edward levy a Fine to Thomas Paul having Issue two Sons at the time Then Thomas made a Feoffment And it was urged by Mr. Leak that the Remainders were hereby destroyed Hales Suppose A. be Tenant for life the Remainder to B. for life the Remainder to C. for life the Remainder to a Contingent and A. and B. do joyn in a Fine doth not C's right of Entry preserve the contingent Estates If there had béen in this case no Son born the contingent Remainders had béen destroyed but there being a Son born it left in him a right of Entry which supports the Remainders and if we should question that we should question all for that is the very basis of all Conveyances at this day And Iudgment was given accordingly Term. Pasch 24 Car. II. 1672. in B. R. Monke versus Morris Clayton AN Action was brought by Monke against the Defendants and Iudgment was given for him They brought a Writ of Error and the Iudgment was affirmed Jones moved that the money might be brought into Court the Plaintiff being become a Bankrupt Winning ' This case was adjudged in the Common-Pleas viz. a man brought an Action of Debt upon a Bond and had a Verdict and before the day in Bank became a Bankrupt it was moved that that Debt was assigned over and prayed to have the money brought into Court but the Court refused it Coleman We have the very words for us in effect for now it is all one as if Iudgment had been given for the Assignées of the Commissioners Twisden How can we
300 l. is as a penalty imposed upon him if he refuse to make such a Grant And if he shall not c. instead of the word not put the words refuse to c. and the case will be out of doubt Besides the annuity to be granted is but 20 l. per annum for a life and 300 l. in money is more then the value of it so that it cannot be intended a sum to be paid in lieu or recompence of it but must be taken for a penalty But suppose it to be a dis-junctive Condition then we ought to have an Election whether we would do but as this case is the Plaintiff by his negligence has deprived us of our Election For Authorities he cited Gerningham Ewer's case Cr. Eliz. 396. 539. 4 H. 7. fol. 4. 5 Co. 21. b. Laughter's case Warner Whyte's case resolved the day before in the Kings Bench. There is a rule laid down in Morecomb's case in Moors Reports 645. which makes against me but the resolution of that case is Law and there needed no such rule That case goes upon the reason of Lambs case 5 Rep. when a man is obliged to pay such a sum as J. S. shall assess J. S. being a meer stranger the Obligor takes upon him that J. S. shall assess a sum in certain and he must procure him to do it or he forfeits his Obligation But in our case nothing is to be done but by the Obligee himself Pemberton contra He argued that the Obligors Election is not taken away for though no Deed were tendred him he might have got one made and the tender of that would have discharged the Condition of his Bond. Indeed this will put him to charge but he may have an Action of Debt for what he lays out He cited the cases cited by Walmesley in Moor 645. betwixt Milles Wood 41 Eliz. Gowers case 38 39 Eliz. c. North. The case of Warner White adjudged yesterday in the Court of Kings Bench is according to Law the condition there was that J. S. should pay such a sum upon the 25th of December or should appear in Hillary Term after in the Court of Kings Bench. J. S. died after the 25th day of Dec ' and before Hill Term and had paid nothing upon the 25th of December In that case the Condition was not broken by the non-payment and the other part is become impossible by the act of God But I think that if the first part of a Condition be rendred impossible by the act of God that the Obligor is bound to perform the other part But in the case at the bar the Obligors Election is taken away by the act of the Obligee himself And I see no difference betwixt this case and that of Gerningham Ewer in Cr. Eliz. if the Condition of an Obligation be single to make such assurance as shall be advised by the Council of the Obligee there concilium non dedit advisamentum is a good plea and the Obligor is not bound to make an assurance of his own head no more shall he be bound to do it when the Condition is in the dis-junctive to save his Bond. In both cases the Condition refers to the manner of the assurance and it must be made in such manner as the words of the Condition import So he said he was of Opinion against the Plaintiff Wyndham Where the Condition of an Obligation is in the disjunctive the Obligor must have his Election But in this case there is no such thing as a disjunctive till such time as there be a request made to seal a Deed of Annuity and then the Obligor will have an Election either to execute the assurance or to pay the 300 l. but no such request being made it should seem that the Obligor must pay the 300 l. at his peril Atkyns agreed with the Chief Iustice and so did Scroggs wherefore Iudgment was ordered to be entred against the Plaintiff Nisi causa c. within a week Quare impedit The Plaintiff declared upon a grant of the Advowson to his Ancestor and in his Declaration says hic in Cur̄ prolat ' but indéed had not the Deed to shew Serjeant Baldwin brought an Affidavit into Court that the Defendant had gotten the Deéd into his hands and prayed that the Plaintiff may take advantage of a Copy thereof which appear'd in an Inquisition found temp Edw. 6. Cur̄ When an Action of Debt is brought upon a Bond to perform Covenants in a Deed and the Defendant cannot plead Covenants perform'd without the Deed because the Plaintiff has the original deed and perhaps the Defendant took not a Counterpart of it we use to grant imparlances till the Plaintiff bring in the deed And upon Evidence if it be proved that the other party has the deed we admit Copies to be given in Evidence But here the Law requires that the deed be produced you have your remedy for the deed at Law We cannot alter the Law nor ought to grant an emparlance Stead Perryer EJectione firmae A man has a Son called Robert Robert has likewise a Son called Robert The Grandfather deviseth the Land in question to his Son Robert and his heirs Robert the deviseé dies in the devisors life time Afterwards the devisor makes a new publication of the same Will and declares it to be his intention that Robert the Grand-child should take the Land in question per eandem voluntatem instead of his Father and dyed And all this was found by special Verdict upon a Trial betwixt Robert the Grand-child and a Daughter of the elder Brother of Robert the first devisee Pemberton The Land does not pass by this Will the devise to Robert became void by his death and cannot be made good by a republication A publication cannot alter the words of a Will so as to put a new sense upon them Land must pass by Will in writing Robert the Grand-son is not within this Will in writing The Grandfathers intention is not considerable in the case Skipwith contra I agree the case between Brett Rygden in the Commentaries to be Law but there are two great diversities between this case and that 1. There was no new publication 2. In this case Robert the Father and Robert the Son are cognominous He cited Dyer 142 143. Trevilians case Fuller Fuller Cr. Eliz. 422. Moor 353. Cr Eliz. 493. North Atkyns Without question Robert the Grand-child shall take by this Will If he never had had a Son called Robert or if Robert the Son had been dead at the time of making the Will the Grand-child would then without dispute have taken by these words Now a new publication is equivolent to a new writing The Grand-child is not directly within the words of the Will but they are applicable to him He is a Son though he be not begotten by the body of the devisor himself He is a Son with
to the second Twisd The Iury have found the Rent to be due for both years and we will now intend that he was in possession all the time for which the Rent is found to be due A Prohibition was prayed to the Ecclesiastical Court at Chester to stay procéedings upon a Libel against one William Bayles for teaching School without Licence but it was denied Redman Edolfe TRespass and Ejectment by Original in this Court Sanders moved in Arrest of Iudgment upon a fault in the Original for a bad Original is not help'd by Verdict But upon Mr. Livesey's certifying that there was no Original at all the Plaintiff had Iudgment though in his Declaration he recited the Original In an Action of Assault and Battery and Wounding the Evidence to prove a Provocation was That the Plaintiff put his hand upon his Sword and said If it were not Assize time I would not take such Language from you The question was if that were an Assault The Court agreed that it was not for he declared that he would not Assault him the Iudges being in Town and the intention as well as the act makes an Assault Therefore if one strike another upon the hand or arm or breast in discourse it s no Assault there being no intention to Assault But if one intending to Assault strike at another and miss him this is an Assault so if he hold up his hand against another and say nothing it is an Assault In the principal case the Plaintiff had Iudgment Medlicott Joyner EJectione firmae The Plaintiff at the Trial offer'd in Evidence a Copy of a Déed that was burnt by the Fire the Copy was taken by one Mr. Gardner of the Temple who said he did not examine it by the Original but he writ it and it always lay by him as a true Copy and the Court agréed to have it read the original Déed being proved to be burnt Twisd Feoffée upon Condition is disseised and a Fine levied and five years pass then the Condition is broken the Feoffor may enter for the Disseisor held the Estate subject to the Condition and so did the Conizee for he cannot be in of a better Estate then the Conizor himself was Dawe Swayne AN Action upon the Case was brought against one for suing the Plaintiff in placito debiti for 600 l. and falsly and maliciously affirming to the Bailiff of Westminster that he did owe him 600 l. whereby the Bailiff insisted upon extraordinary Bail to his Damage c. The Defendant traverses absque hoc that he did falsly and maliciously affirm to the Bailiff of Westminster that he did owe him so much Winnington moved in Arrest of Iudgment that the Action would not lie But the Plaintiff had Iudgment Keel If there had béen no cause of Action an Action upon the Case would not lie because he has a recompence by Law but here was a cause of Action If one should arrest you in an Action of 2000 l. to the intent that you should not find Bail and keep you from practice all this Term and this is found to be falsly and maliciously shall not you have an Action for this this Twisden said he knew to have been Serjeant Rolls his Opinion Morton Foxley's case is That if a man be outlaw'd in another County where he is not known an Action upon the Case will lye so an Action lies against the Sheriff if reasonable Bail be offered and refused Twisd If three men bring an Action and the Defendant put in Bail at the Suit of four they cannot declare but if he had put in Bail at the suit of one that one might declare against him Iudgment was entred as of Trinity Term for the Queen Mother and a Writ of Enquity of damages was taken out returnable this Term and she died in the Vacation-time Resolved that the first was but an interlocutory Iudgment and that the Action was abated by her death Twisd Some have questioned how you shall come to make the death of the party appear between the Verdict and the day in Bank and I have known it offer'd by Affidavit and by suggestion upon the Roll and by motion Troy an Attorney AN Information of Extortion against Troy an Attorney It was moved in arrest of Iudgment That Attorneys are not within any of the Statutes against Extortion and therefore the Information concluded ill the conclusion being contra formam Statuti Twisd The Statute of 3 Jac. cap. 7. is express against Attornies Keel I think as thus advised that Attornies are within all the Statutes of Extortion It was afterwards moved in arrest of Iudgment because the Information was insufficient in the Law for Sir Tho. Fanshawe informed that Mr. Troy being an Attorney of the Court of Common Pleas did at Maidstone cause one Collop to be impleaded for 9 s. 4 d. debt at the suit of one Dudley Sellinger c. and this was ad grave damnum of Collop c. but it is not expressed in what Court he caused him to be impleaded and that which the Defendant is charged with is not an offence for he saith that he did cause him to be impleaded and received the money the same day and perhaps he received the money after he had caused him to be impleaded Then it is not sufficiently alledged that he did illicite receive so much and Extortion ought to be particularly alledged Nor is there any Statute that an Attorney shall receive no more than his just Fées The profession of an Attorney is at Common Law and allowed by the Statute of Westm 1. cap. 26. and the Statute of 3 Jac. does not extend to this matter Non constat in this case if what he received was for Fees or no besides the suit for an offence against that Statute must be brought by the party not by Sir Tho. Fanshawe Keel If the party grieved will not sue for the penalty of treble damages given by that Statute yet the King may prosecute to turn him out of the Roll. Twisd I doubt that nor is it clear whether an Information will lie at all upon that Statute or not for the Statute does not speak of an Information Keel Whenever a Statute makes a thing criminal an Information will lie upon the Statute though not given by express words Twisd It appears here that this money was not received of his Client for he was against Collop But he ought to shew in what Court the impleading was for otherwise it might be before Mr. Major in his Chamber To which the Court agreéd So the Information was quash'd Burnet Holden THere were these two points in the case 1. If the Defendant dye after the day of Nisi prius and before the day in Bank whether the Iudgment shall be said to be given in the life of the Defendant 2. Admit it shall yet whether the Executor shall have the advantage taken from him of retaining to satisfie his own debt To the first
it was said that the Act of Parliament only takes away a Writ of Error in such case but there is no day in Bank to plead It was order'd to stand in the paper Corporation of Darby THe Corporation of the Town of Darby prescribe to have Common sans number in grosse Sanders I conceive it may be by prescription what a man may grant may be prescribed for Co. Lit. 122. is express Keel In a Forest the King may grant Common for Sheep but you cannot prescribe for it And if you may prescribe for Common sans number in grosse then you may drive all the Cattel in a Fair to the Common Sanders But the prescription is for their own Cattel only Twisd If you prescribe for common sans number appurtenant to Land you can put in no more Cattel then what is proportionable to your Land for the Land stints you in that case to a reasonable number But if you prescribe for common sans number in grosse what is it that sets any bounds in such case There was a case in Glyn's time betwéen Masselden and Stoneby where Masselden prescribed for common sans number without saying levant couchant and that being after a Verdict was held good but if it had been upon a Demurrer it would have been otherwise Livesey said he was agent for him in the case Bucknall Swinnock INdebitat Assumpsit for money received to the Plaintiffs use the Defendant pleads specially that post assumptionem praedictam there was an agreement between the Plaintiff and Defendant that the Defendant should pay the money to J. S. and he did pay it accordingly The Plaintiff demurrs Jones This plea doth not only amount to the general issue but is repugnant in it self It was put off to be argued Hall versus Wombell THe question was whether an Action of Debt would lie upon a Iudgment given by the Commissioners of Excise upon an Information before them Adjornatur Vaughan Casewell A Writ of Error was brought to reverse a Iudgment given at the grand Sessions in Wales in a Writ of Quod ei deforciat Sanders The point in Law will be this whether a Tenants vouching a Vouchee out of the line be peremptory and final or that a Respondeas ouster shall be awarded Mr. Jones In an Assise the Tenant may vouch another named in the Writ 9 H. 5. 14. and so in the Com. fo 89. b. but a voucher cannot be of one not named in the Writ because it is festinum remedium In Wales they never allow foreign vouchers because they cannot bring them in If there be a Counterplea to a Voucher and that be adjudged in another Term it is always peremptory otherwise if it be determined the same Term. An Action of Trover and Conversion was brought against husband and wife and the wife arrested Twisd The wife must be discharged upon Common bail so it was done in the Lady Baltinglasse's case And where it is said in Crook that the Wife in such case shall be discharged it is to be understood that she shall be discharged upon Common bail So Livesey said the course was It was said to be the course of the Court That if an Attorney be sued time enough to give him two Rules to plead within the Term Iudgment may be given otherwise not Russell Collins AN Assumpsit was brought upon two several promises and entire damages were given Moved by Mr. Sympson in arrest of Iudgment that for one of the promises an Action will not lie It was a general indebitatus pro opere facto which was urged to be too general and uncertain But per Cur ' it is well enough as pro mercimoniis venditis pro servitio without mentioning the Goods or the Service in particular And the Plaintiff had Iudgment Dyer versus East AN Action upon the Case upon a promise for Wares that the wife took up for her wearing Apparel Polyxfen moved for a new Trial. Keel The husband must pay for the wives Apparel unless she does elope and he give notice not to trust her that is Scott Manby's case which was a hard Iudgment but we will not impeach it The Plaintiff had Iudgment Beckett Taylor DEbt upon a Bond to submit to an Award Exception was taken to the Award because the concurrence of a third person was awarded which makes it void They award that one of the parties shall discharge the other from his undertaking to pay a Debt to a third person and it was pretended that the third person being no party to the submission was not compellable to give a discharge But it was answered that he is compellable for in case the debt be paid him he is compellable in equity to give a Release to him that had undertaken to pay it Rolls 1 part 248. Giles Southwards case Mich. 1653. Judgment nisi Seventéen Serjeants being made the 4th of November a day or two after Serjeant Powis the Junior of them all coming to the Kings Bench bar the Lord Chief Iustice Keeling told him that he had something to say to him viz. That the Rings which he and the rest of the Serjeants had given weighed but 18 s. apiece whereas Fortescue in his book de laudibus legum Angliae says That the Rings given to the Chief Iustices and to the Chief Baron ought to weigh 20 s. apiece and that he spake this not expecting a recompence but that it might not be drawn into a president and that the young Gentlemen there might take notice of it Clerke versus Rowell Phillips A Trial at bar in Ejectment for Lands settled by Sir Pexall Brockhurst The Court said a Trial against others shall not be given in Evidence in this cause And Twisden said that an Entry to deliver a Declaration in Ejectment should not work to avoid a Fine but that it must be an express Entry Vpon which last matter the Plaintiff was non-suit Redmans Case IT was moved that one Redman an Attorney of the Court who was going into Ireland might put in special Bail Twisd A Clerk of the Court cannot put in bail You have filed a Bill against him and so waved his putting in bail Keel You may remember Woolly's case that we discharged him by reason of his priviledge and took Common bail Twisd You cannot declare against him in custodia But though we cannot take bail yet we may commit him and then deliver him out by mainpernancy Jones If he be in Court in propria persona you cannot procéed against his bail The Court agréed that the Attorney should not put in bail Grafton GRafton one of the Company of Drapers was brought by Habeas Corpus In the Return the cause of his Imprisonment was alledged to be for that being chosen of the Livery he refused to serve Per Cur ' they might have fined him and have brought an Action of Debt for the sum but they could nor imprison him Keel The Court of Aldermen may imprison a