receive the bodies of James Earl of Salisbury Anthony Earl of Shaftsbury and Philip Lord Wharton Members of this House and keep them in safe custody within the said Tower during his Majesties pleasure and the pleasure of this House for their high Contempt committed against this House And this shall be a sufficient Warrant on that behalf To the Constable c. John Browne Cler ' Parl ' The Earl of Shaftsbury's Counsel prayed that the Retorn might be Filed and it was so And Friday following appointed for the debating of the sufficiency of the Retorn and in the mean time directions were given to his Counsel to attend the Iudges and the Attorny-General with their Exceptions to the Retorn and my Lord was remanded till that day And it was said that though the Retorn was Field the Court could remand or commit him to the Marshal at their Election And on Friday the Earl was brought into Court again and his Counsel argued the insufficiency of the Retorn Williams said That this cause was of great consequence in regard the King was touched in his Prerogative The Subject in his Liberty and this Court in its Iurisdiction The cause of his Commitment which is retorned is not sufficient for the general allegation of high Contempts is too uncertain for the Court cannot judge of the Contempt if it doth not appear in what act it is Secondly It is not shewed where the Contempt was committed and in favour of Liverty it shall be intended they were committed out of the House of Peers Thirdly The time is uncertain so that peradventure it was before the last Act of general Pardon 1 Roll 192 193. and 219. Russells case Fourthly It doth not appear whether this Commitment were on a Conviction or an Accusation only It cannot be denied but that the Retorn of such Commitment by any other Court would be too general and uncertain Moore 839. Astwick was bailed on a Retorn Quod commissus fuit per mandatum Ni. Bacon Mil. Domini Custodis magni Sigilli Angliae virtute cujusdam Contempt ' in Curia Cancellariae fact ' and in that book it appears that divers other persons were bailed on such general Retorns and the cases have been lately affirmed in Bushells case repeated by the Lord Chief Iustice Vaughan where it is expresly said that on such Commitment and Retorns being too general and uncertain the Court cannot believe in an implicite manner that in truth the Commitment was for causes particular and sufficient Vaughans Rep. 14. accord 2 Inst 52 53 55. and 1 Roll 218. And the Commitment of the Iurors was for acquitting Pen and Mead contra plenam manifestam Evidentiam and it was resolved to be too general for the Evidence ought to appear as certain to the Iudge of the Retorn as it appeared before the Iudge authorized to Commit Russells case 137. Now this Commitment being by the House of Peers will make no difference for in all cases where a matter comes in Iudgment before this Court let the question be of what nature it will the Court is obliged to declare the Law and that without distinction whether the question began in Parliament or no. In the case of Sir George Binion in C. B. there was a long debate whether an Original might be Filed against a Member of Parliament during the time of priviledge and it was urged that it being during the Sessions of Parliament the determination of the question did belong to the Parliament But it was resolved an Original might be Filed and Bridgman then being Chief Iustice said That the Court was obliged to declare the Law in all cases that come in Iudgment before them Hill 24 E. 4. Rot. 4. 7. 10. in Scacc ' in Debt by Rivers versus Cousin The Defendant pleads he was a Servant to a Member of Parliament and ideo capi seu arrest ' non debet and the Plaintiff prays Iudgment and quia videtur Baronibus quod tale habetur privilegium quod magnates c. et eorum familiares capi seu arrestari non debent Sed nullum habetur privilegium quod non debent implacitari Ideo respondeat oustr ' So in Treymiards case a question of priviledge was determined in this Court Dyer 60. In the 14 E. 3. in the case of Sir John and Sir Geoffrey Staunton which was cited in the case of the Earl of Clarendon and is entred in the Lords Iournal an Action of Waste depended between them in the Common-Pleas and the Court was divided and the Record was certified into the House of Parliament and they gave direction that the Iudgment should be entred for the Plaintiff Afterwards in a Writ of Error brought in this Court that Iudgment was reversed notwithstanding the Objection That it was given by Order of the House of Lords for the Court was obliged to proceed according to the Law in a matter which was before them in point of Iudgment The construction of all Acts of Parliament is given to the Courts at Westminster And accordingly they have adjudged of the Validity of Acts of Parliament They have searched the Rolls of Parliament Hob. 109. Lord Hudsons case They have determined whether the Iournals be a Record Hob. 110. When a point comes before them in Iudgment they are not foreclosed by any Act of the Lords If it appears that an Act of Parliament was made by the King and Lords without the Commons that is Felo de se and the Courts of Westminster do adjudge it void 4 H. 7. 18. Hob. 111. and accordingly they ought to do If this Retorn contains in it that which is fatal to it self it must stand or fall thereby It hath been a question often resolved in this Court when a Writ of Error in Parliament shall be a Supersedeas And this Court hath determined what shall be said to be a Session of Parliament 1 Roll 29. and if the Law were otherwise there would be a failour of Iustice If the Parliament were Dissolved there can be no question but the Prisoner should be discharged on a Habeas Corpas and yet then the Court must examine the cause of his Commitment and by consequence a matter Parliamentary And the Court may now have cognisance of the matter as clearly as when the Parliament is Dissolved The party would be without remedy for his Liberty if he could not find it here for it is not sufficient for him to procure the Lords to determine their pleasure for his Imprisonment for before his enlargement he must obtain the pleasure of the King to be determined and that ought to be in this Court and therefore the Prisoner ought first to resort hither Let us suppose for it doth not appear on the Retorn and the Court ought not to enquire of any matter out of it that a supposed contempt was a thing done out of the House it would be hard for this Court to remand him Suppose he were committed to a Forreign prison during the
pleasure of the Lords no doubt that would have been an illegal Commitment against Magna Charta and the Petition of Right There the Commitment had been expresly illegal and it may be this Commitment is no less For if it had been expresly shewn and he be remanded he is committed by this Court who are to answer for his Imprisonment But secondly The duration of the Imprisonment during the pleasure of the King and of the House is illegal and uncertain for since it ought to determine in two Courts it can have no certain period A Commitment until he shall be discharged by the Courts of Kings-Bench and Common-Pleas is illegal for the Prisoner cannot apply himself in such manner as to obtain a discharge If a man be committed till further Order he is bailable presently for that imports till he shall be delivered by due course of Law and if this Commitment have not that sense it is illegal for the pleasure of the King is that which shall be determined according to Law in his Courts as where the Statute of Westm ' 1. cap. 15. declares that he is not replevisable who is taken by command of the King it ought to extend to an extrajudicial command not in his Courts of Iustice to which all matters of Iudicature are delegated and distributed 2 Inst 186 187. Wallop to the same purpose he cited Bushells case Vaughan's Rep. 137. that the general Retorn for high Contempts was not sufficient and the Court that made the Commitment in this case makes no difference for otherwise one may be imprisoned by the House of Peers unjustly for a matter relievable here and yet shall be out of all relief by such a Retorn for upon a supposition that this Court ought not to meddle where the person is committed by the Peers then any person at any time and for any cause is to be subject to perpetual Imprisonment at the pleasure of the Lords But the Law is otherwise for the House of Lords is the supream Court yet their Iurisdiction is limited by the Common and Statute Law and their excesses are examinable in this Court for there is great difference betwéen the errors and excesses of a Court betwéen an erroneous proceéding and a proceeding without Iurisdiction which is void and a meer nullity 4 H. 7. 18. In the Parliament the King would have one Attaint of Treason and lose his Lands and the Lords assented but nothing was said of the Commons wherefore all the Iustices held that it was no Act and he was restored to his Land and without doubt in the same case if the party had been imprisoned the Iustices must have made the like resolution that he ought to have been discharged It is a Sollecism that a man shall be imprisoned by a limited Iurisdiction and it shall not be examinable whether the cause were within their Iurisdiction or no. If the Lords without the Commons should grant a Tax and one that refused to pay it should be imprisoned the Tax is void but by a general Commitment the party shall be remediless So if the Lords shall award a Capias for Treason or Felony By these instances it appears that their Iurisdiction was restrained by the Common Law and it is likewise restrained by divers Acts of Parliament 1 H. 4. cap. 14. No Appeals shall be made or any way pursued in Parliament And when a Statute is made a power is implicitely given to this Court by the fundamental constitution which makes the Iudges Expositors of Acts of Parliament And peradventure if all this case appeared upon the Retorn this might be a case in which they were restrained by the Statute 4 H. 8. cap. 8. That all Suits Accusements Condemnations Punishments Corrections c. at any time from henceforth to be put or had upon any Member for any Bill speaking or reasoning of any matters concerning the Parliament to be communed or treated of shall be utterly void and of none effect Now it doth not appear but this is a correction or punishment imposed upon the Earl contrary to the Statute There is no question made now of the power of the Lords but it is only urged that it is necessary for them to declare by virtue of what power they proceed otherwise the Liberty of every Englishman shall be subject to the Lords whereof they may deprive any of them against an Act of Parliament but no usage can justifie such a proceeding Ellismeres case of the Post-nati 19. The Duke of Suffolk was impeached by the Commons of High Treason and Misdemeanors the Lords were in doubt whether they would proceed on such general Impeachment to imprison the Duke And the advice of the Iudges being demanded and their resolutions given in the negative the Lords were satisfied This case is mentioned with design to shew the respect given to the Iudges and that the Iudges have determined the highest matters in Parliament At a conference between the Lords and Commons 3 Aprilis Car. 1. concerning the Rights and Priviledges of the Subject It was declared and agreed that no Freeman ought to be restrained or committed by command of the King or Privy-Council or any other in which the House of Lords are included unless some cause of the Commitment Restraint or Deteynor be set forth for which by Law he ought to be committed c. Now if the King who is the Head of the Parliament or his Privy Council which is the Court of State ought therefore to proceed in a legal manner this solemn resolution ought to end all Debates of this matter It is true 1 Roll 129. in Russells case Coke is of Opinion that the Privy-Council may commit without shewing cause but in his more mature age he was of another Opinion And accordingly the Law is declared in the Petition of Right and no inconvenience will ensue to the Lords by making their Warrants more certain Smith argued to the same purpose and said That a Iudge cannot make a Iudgment unless the Fact appears to him on a Habeas Corpus the Iudge can only take notice of the Fact retorned It is lawful for any Subject that finds himself agrieved by any Sentence or Iudgment to Petition the King in an humble manner for Redress And where the Subject is restrained of his liberty the proper place for him to apply himself to is this Court which hath the supreme power as to this purpose over all other Courts and an Habeas Corpus issuing here the King ought to have an accompt of his Subjects Roll tit Habeas Corp. 69. Wetherlies case And also the Commitment was by the Lords yet if it be illegal this Court is obliged to discharge the Prisoner as well as if he had been illegally imprisoned by any other Court The House of Peers is an high Court but the Kings-Bench hath ever been entrusted with the Liberty of the Subject and if it were otherwise in case of Imprisonment by the Peers the power of the King were
That the Plaintiffs should enjoy the same without interruption by them or any other person or persons whatsoever and alledge that a Stranger claiming a Title did make an Entry upon them and kept them out of possession To this the Defendants plead a local Plea to wit that the said Stranger did not enter upon the Plaintiffs c. upon which Issue is joyned Then do the Plaintiffs make a suggestion and pray a Venire facias into the next County Vpon which there is a Trial. Jones conceived this to be a mis-trial and that the Venire ought to have been de vicineto of the Castle of York where the Covenant is alledged to have béen made First this fault is not aided by any of the Statutes of Jeoffayles not by the last and greatest of all That aids where the Venire facias is awarded from another place then it ought to be but not when awarded from another County which is my Exception That at the Common Law this Venire facias is not well awarded I relie upon Dowdale's case 6 Rep. if an Action be brought upon a matter done out of the Kingdom the Trial shall be where the Action is laid In our case the Action is grounded upon an Indenture supposed to be made within the County of York but Issue is joyned upon a matter done out of the Kingdom for so Berwick is This Issue I conceive ought to be tryed where the Action is laid It is true in the case of Wales the Law is otherwise for I find that Wales is parcel of the Realm of England though the Kings Writs do not run there But Berwick is part of the Realm of Scotland and was conquered by King Edw. 4. and Acts of Parliament name Berwick When Calice was in possession of the Kings of England and a matter arising within Calice came in Issue was ever any Venire facias awarded to Dover Twisd There are two Presidents of such Trials one in 12 Eliz. Rot. 630. and in 2 Rolls 97. I have asked my Brother Withrington who was a knowing man how it came to pass that Berwick was put into Acts of Parliament he said he knew no other reason then that the Recorder of Berwick was at first in Parliament and desired it and therefore it hath continued ever since Mr. Weston said that 3 Cro. 465. was an Authority In this case it hapned that during the Cur. advisare vult one of the Plaintiffs dyed and the question was what should be done Twisd There is a case in Latch wherein this difference is taken viz. If there be no Continuance entred you may enter the Iudgment as at the day in Bank but if Continuances are entred then you cannot go back but must enter the Iudgment to the time of the Continuances It was put off for Counsel to be heard in it Smith Wheeler sup 16. IN this case Serjeant Maynard was about to argue that the residue of the term was not forfeited to the King Keel Brother Maynard you would do well to be advised whether or no you being of the Kings Counsel ought to argue in this case against the King Maynard answered that the Kings Counsel would have but little to do if they should be excluded in such cases and that Serjeant Crew argued Haviland's case in which there was the like question Twisd In Stone Newman's case I know the Kings Counsel did argue against Estates coming to the Crown but if my Lord thinks it not proper my Brother Maynard may give his argument to some Gentleman at the Bar to deliver for him Afterward Term. Pasch 22 Car. 2. 1670. the case came to be argued again Jones argued for the Plaintiff in the Writ of Error 1. Whether this Settlement be fraudulent or no that Fraud is not to be presumed he cited the Chancellor of Oxford's case 10th Rep. 1 Cro. 549 550. But for the second point he held that here is a Trust forfeitable to the King He quoted Sir John Duncomb's case 2 Cro. That the Trust in this case is forfeited he proved from the nature of a Trust which is an equitable Interest or a right of perception of the profits of an Estate the cestuy que Trust hath jus habendi jus disponendi And though he that hath a Trust hath in Law neither jus in re nor jus ad rem yet in Equity he hath both In Equity whatever I have a right to dispose of I have a right to take the profits of For if a man makes a Conveyance to the use of one and his heirs in Trust that he shall convey over though it is not exprest that he shall take the profits yet he shall take them Now in the second Proviso there is a double expression one that amounts to a Revocation the other amounting to a disposition or limitation Now he that hath a power of disposition hath a right that may be forfeited And therefore the Duke of Norfolk's case comes not to this for we are not in the power of Revocation I decline that but we are in a power of disposition Now this is good by way of Trust in Law indéed such a Proviso is naught but in a Trust the intention of the parties carries it I observe in forfeitures at the Common Law where a man hath only jus disponendi though he hath no Estate yet he may forfeit it Plo. Com. 260. A man is possest of a term in the right of his wife though he hath no Estate himself yet he may forfeit it and the reason is because he hath jus disponendi If a man might by such a disposition as this protect his Estate from being forfeited little Land would come to the Crown upon Attainders There are two badges of Ownership the one is a perception of the profits the other a power of disposing both which are in our case and a favourable construction ought not to be put upon a Déed for encouragement of Traitors Winnington contra As for the first point the Fraud ought to be found and this Lease was made long before the Attainder or the Treason committed For the second point the question will be what our Law calls a Trust Then I shall examine whether there was such a thing in Mayn at the time of his decease A Trust I find to be a confidence reposed in the person that another shall take the profits and that the Trustée shall Convey according to his directions this I gather from these books viz. Plowd 352. Delamere's case 1 Rep. 121 122. Co. Lit. 272. Now if these two qualities or either shall fall in this case then Simon Mayn had no Trust to forfeit For that the case will depend upon the true-stating the words of the Deed. For the first Proviso it doth not cohere with any of these qualities for by vertue of that Proviso he could not be said to have any Right he hath no jus disponendi but upon Contingencies If he have no Children he hath no
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
Reversion to his own right Heirs after which Michael dyed leaving Issue Robert his Son and Heir by a first Venter and the said Ralph by Jane his second wife after the death of Michael Robert entred and from Robert by divers Mesne Conveyances a Title was deduced to the Heir of the Plaintiff Ralph had Issue Robert the Defendant And in this special Verdict the question was If any Vse did arise to Ralph by this Indenture 23 Jan ' 21 Jac ' Hales Rainsford and Wyld against the Opinion of Twisden Michael Mitford took an Estate for life by implication and consequence and so had an Estate Tail Hales 1 said it were clear if an Estate for life had been limited to Michael and to the Heirs males of the body of Michael to be begotten on the body of his second wife that had been an Estate Tail 2 Which way soever it be the Estate is lodged in Michael during his life 3 There is a great difference between Estates to be conveyeyed by the rules of the Common Law and Estates conveyed by way of Vse for he may mould the Vse in himself in what estate he will These things being premised he said This Estate being turned by operation of Law into an Estate in Michael is as strong as if he had limited an Estate to himself for life 2 A Limitation to the Heirs of his body is in effect a Limitation to the Vse of himself for his Heirs are included in himself 3 It is perfectly according to the intention of the party which was that his eldest Son should not take but that the Issue of the second wife should take His intent appears to be 1 Object that it should take effect as a future use When a man limits a Vse to commence in futuro Respons and there is such a descendible quality left in him that his Heirs may take in the mean time there it shall operate solely by way of future Vse as if a man Covenant to stand seized to the use of J. S. after the expiration of 40 years or after the death of J. D. there no present alteration of the Estate is made but it is only a future use because the Father or the Ancestor had such an Interest left in him which might descend to his Heir viz. during the years or during the life of J. D. But when no Estate may by reason of the Limitation descend to the Heir until the Contingency happen there the Estate of the Covenantor is moulded to an Estate for life This would be to create an Estate by implication 2 Object We are not here to create an Estate Respons but only to qualifie an Estate which was in the Ancestor before That the old Fee-simple shall be left in him 3 Object Yet the Covenantor had qualified this Estate Respons and converted it into an Estate Tail viz. part of the old Estate That the intention of the parties appears that it should operate by way of future use 4 Object for that of other Lands he covenanted to stand seised to the use of himself and his Heirs of his body It is not the intention of the party that shall comptroll the operation of Law Respons and to the case 1 Inst 22. though it be objected that it was not necessary at the Law to raise an Estate for life by implication yet my Lord Coke hath taken notice what he had said in the case of Parnell and Fenn Roll Rep. 240. if a man make a Feoffment to the use of the Heirs of his body that is an Estate for life in the Feoffor and in Englefields case as it is reported in Moore 303. it is agreed that if a man Covenant to stand seised to an use to commence after his death that the Covenantor thereby is become seised for life As to the second point Twisden Rainsford and Wyld held that no future use would arise to Ralph because he is not heir at Common Law and none can purchase by the name of heir unless he be heir at Common Law But Hales was against them in this point and he held that it Ralph could not take by descent yet he might well take by purchase 1 Because before the St ' de Donis a limitation might be made to this heir and so he was a special heir at Common Law 2 It is apparent that he had taken notice that he had an heir at the Common Law Litt. Sect. 35. 1 Inst 22. So his intent is evident that the heir at the Common Law should not take But on the first point Iudgment was given for the Defendant Term. Mich. 25 Car. II. in Communi Banco Anonymus IF a man be lyable to pay a yearly sum as Treasurer to a Church or the like to a Sub-treasurer or any other and dies the money being in arrear an Action of Assumpsit cannot be maintained against his Executors for these arrears For although according to the resolution in Slade's case 4 Report which Vaughan Chief Iustice said was a strange resolution an Assumpsit or an Action of Debt is maintainable upon a Contract at the parties Election yet where there is no Contract nor any personal privity as in this case there is not an Assumpsit will not lye And in an Action of Debt for these Arrears the Plaintiff must aver that there is so much money in the Treasury as he demands and in this case of an Action against Executors that there was so much at the time of the Testators death c. for the money is due from him as Treasurer and not to be paid out of his own Estate As in an Action against the Kings Receiver the Plaintiff must set forth that he has so much money of the Kings in his Coffers Magdalen Colledge Case INdebitat ' Assumpsit against the President and Scholars of Magdalen Colledge in Oxford for thréescore pounds due for Butter and Cheese sold to the Colledge The Chancellor of the Vniversity demanded Conisance by virtue of Charters of Priviledges granted to the Vniversity by the Kings Progenitors and confirm'd by Act of Parliament whereby amongst other things power is given them to hold plea in personal Actions wherein Scholars or other priviledged persons are concerned and concludes with an express demand of Conisance in this particular cause Baldw. Their priviledge extends not to this case for a Corporation is Defendant and their Charters mention priviledged persons only Their Charters are in derogation of the Common Law and must be taken strictly They make this demand upon Charters confirm'd by Act of Parliament and they have a Charter granted by King Henry 8. which is confirm'd by an Act in the Queens time but the Charter of 11 Car. 1. which is the only Charter that mentions Corporations is not confirm'd by any Act of Parliament and consequently is not material as to this demand For a demand of Conisance is stricti Juris But admitting it material the Kings Patent
that he had cured her the consideration of the first promise being future and both promises found and entire damages given Twisd It is well enough for now it lies upon the whole Record whether he hath cured her or no if it had rested upon the first promise it had been nought And in the second promise there is an averment that he had cured her So that now after a Verdict it is help'd and the want of an averment is holpen by a Verdict in many cases Iudgement nisi c. Twisd If a man be in prison and the Marshal dye and the Prisoner escape there is no remedy but to take him again Twisd Pleas in abatement come too late after imparlance Hall Sebright AN Action of Trespass wherein the Plaintiff declared That the Defendant on the 24th of January did enter and take possession of his house and did keep him out of possession to the day of the exhibiting the Bill The Defendant pleads that ante praedict tempus quo sc c. the Plaintiff did licence the Defendant to enjoy the house until such a day Saunders The plea is naught in substance for a licence to enjoy from such a time to such a time is a Lease and ought to be pleaded as a Lease and not as a Licence it is a certain present Interest Twisd It is true 5 H. 7. fo 1. is That if one doth licence another to enjoy his house till such a time it is a Lease but whether it may not be pleaded as a Licence I have known it doubted Judgment nisi c. Coppin versus Hernall TWisden said upon a motion in arrest of Iudgment because an Award was not good that the Vmpirage could not be made till the Arbitrators time were out And if any such power be given to the Vmpire it s naught in its constitution for two persons cannot have a several Iurisdiction at one and the same time The Law allows the Defendant a Copy of the Pannel to provide himself for his challenges Fetyplace versus ACtion upon the Case upon a promise in consideration that the Plaintiff would affeerere instead of afferre c. it was moved in arrest of Iudgment Cr. 3 part 466. was cited Bedel Wingfield Twisd I remember districtionem for destructionem cannot be help'd so neither vaccaria instead of vicaria So the Court gave directions to see if it were right upon the Roll. Holloway THe Condition of a Bond for performance of Covenants in an Indenture doth estop to say there is no such Indenture but doth not estop to say there are no Covenants Keel The course of the Court is that if a man be brought in upon a Latitat for 20 l. or 30 l. we take the bail for no more but yet he stands bail for all Actions at the same parties suit otherwise if a stranger bring an Action against him Twisd They cannot declare till he hath put in Bail and when we take bail it is but for the sum in the Latitat perhaps 30 l. or 40 l. but when he is once in he may be declared against for 200 l. Smith versus Wheeler A Writ of Error was brought to reverse a Iudgment given in the Common Pleas upon a special Verdict in an Ejectione firmae The Iury found that one Simon Mayne was possest of a Rectory for a long term and having conveyed the whole term in part of it to certain persons absolutely he conveyed his term in the residue being two parts in this manner sc in trust for himself during life and afterwards in trust for the payment of the Rent reserved upon the original Lease and for several of his Friends c. Provided that if he should have any issue of his body at the time of his death then the trusts to cease and the Assignment to be in trust for such issue c. and there was another Proviso that if he were minded to change the uses or otherwise to dispose of the premisses that he should have power so to do by writing in the presence of two or more Witnesses or by his last Will and Testament They further find that he had Issue male at the time of his death but made no disposition pursuant to his power and that in his life time he had committed Treason and they find the Act of his Attainder The question was whether the rest of the term that remained unexpired at the time of his death were forfeited to the King The points made were two 1. Whether the Deed were fraudulent 2. Whether the whole term were not forfeited by reason of the trust or the power of revocation Pemberton argued that the Deed was fraudulent because he took the profits during his life and the Assignees knew not of the Deed of trust The Court hath in these cases adjudged fraud upon circumstances appearing upon Record without any Verdict the case that comes nearest to this is in Lane 42. c. The King against the Earl of Nottingham and others 2dly He argued that there was a Trust by express words and if there be a Trust then not only the Trust but the Estate is vested in the King by the express words of the Stat. of 33 Hen. 8. The King indeed can have no larger Estate in the Land then the person attainted had in the Trust and if this Conveyance were in Trust for Simon Mayne only during his life the King can have the Land no longer but he conceived it was a Trust for Simon Mayne during the whole term A Trust he said was a right to receive the profits of the Land and to dispose of the Lands in Equity Now if Simon Mayne had a right to receive the profits and a present power to dispose of the Land he took it to be a Trust for him and that consequently by his attainder it was forfeited to the King Coleman contra As for the matter of Fraud first there is no Fraud found by the Iury and for you to judge of Fraud upon Circumstances is against the Chancellor of Oxfords case 10th Rep. As for the Trust it must be agreed that if there be any either Trust or Condition by construction upon these Provisoes in Simon Mayne in his life between Mich. 1646. and the time of making the Act the Trust will be vested in the King but whether will it be vested in the King as a Trust or as an Estate For I am informed that it hath been adjudged between the King and Holland Styles Reports That if an Alien purchase Copy-hold Lands the King shall not have the Estate but as a Trust and the particular reason was because the King shall not be Tenant to the Lord of the Mannor Keeling The Act of Parliament takes the Estate out of the Trustees and puts it in the King Coleman But I say here is no Trust forfeitable By the body of the Déed all is out of him If a man makes a feoffment in Fée to the use of his
of ordinary Iurisdiction If this Commitment had been by any inferiour Court it could not have been maintained But the Commitment is by a Court tht is not under the comptroll of this Court and that Court is in Law sitting at this time and so the expressing of the Contempt particularly is matter which continues in the deliberation of the Court 'T is true this Court ought to determine what the Law is in every case that comes before them and in this case the question is only whether this Court can judge of a Contempt committed in Parliament during the same Session of Parliament and discharge one committed for such Contempt When a question arises in an Action depending in this Court the Court may determine it but now the question is whether the Lords have capacity to determine their own priviledges and whether this Court can comptroll their determination and discharge during the Session a Peer committed for Contempt The Iudges have often demanded what the Law is and how a Statute should be expounded of the Lords in Parliament as in the Statute of Amendments 40 E. 3. 84. 6. 8. Co. 157 158. a fortiori the Court ought to demand their Opinion when a doubt arises on an Order made by the House of Lords now sitting As to the duration of the Imprisonment doubtless the pleasure of the King is to be determined in the same Court where Iudgment was given As also to the determination of the Session the Opinion of Coke is good Law and the addition of Proviso's in many Acts of Parliament is only in majorem cautelam Jones Attorney General to the same effect As to the uncertainty of the Commitment it is to be considered that this case differs from all other cases in two circumstances First the person that is a Member of the House by which he is committed I take it upon me to say that the case would be different if the person committed were not a Peer Secondly The Court that doth commit which is a superiour Court to this Court and therefore if the Contempt had been particularly shewn of what Iudgment soever this Court should have been as to that Contempt yet they could not have discharged the Earl and thereby take upon them a Iurisdiction over the House of Peers The Iudges in no age have taken upon them the Iudgment of what is Lex consuetudo Parliamenti but here the attempt is to engage the Iudges to give their Opinion in a matter whereof they might have refused to have given it if it had been demanded in Parliament This is true if an Action be brought where priviledge is pleaded the Court ought to judge of it as an incident to the Suit whereof the Court was possessed but that will be no warrant for this Court to assume a Iudgment of an original matter arising in Parliament And that which is said of the Iudges power to expound Statutes cannot be denied but it is not applicable in this case By the same reason that this Commitment is questioned every Commitment of the House of Commons may be likewise questioned in this Court It is objected That there will be a failer of Iustice if the Court should not discharge the Earl but the contrary is true for if he be discharged there would be a manifest failer of Iustice for Offences of Parliament cannot be punished any where but in Parliament and therefore the Earl would be delivered from all manner of punishment for his Offence if he be discharged For the Court cannot take Bail but where they have a Iurisdiction of the matter and so delivered out of the hands of the Lords who only have power to punish him It is objected That the Contempt is not said to be committed in the House of Peers but it may well be intended to be committed there for it appears he is a Member of that House and that the Contempt was against the House And besides there are Contempts whereof they have cognizance though they are committed out of the House It is objected That it is possible this Contempt was committed before the general pardon but surely such Injustice should not be supposed in the supream Court and it may well be supposed to be committed during the Session in which the Commitment to Prison was It would be great difficulty for the Lords to make their Commitments so exact and particular when they are imployed in the various affairs of the Realm and it hath been adjudged on a Retorn out of the Chancery of a Commitment for a Contempt against a Decreé that it was good and the Decrée was not shewn The limitation of the Imprisonment is well for if the King or the House determine their pleasure he shall be discharged for then it is not the pleasure of both that he should be detained and the addition of these words during the pleasure is no more than was before imply'd by the Law for if these words had been omitted yet the King might have pardoned the Contempt if he would have expressed his pleasure under the Broad Seal If Iudgment be given in this Court that one should be imprisoned during the Kings pleasure his pleasure ought to be determined by Pardon and not by any act of this Court. So that the King would have no prejudice by the Imprisonment of a great Minister because he could discharge him by a Pardon the double limitation is for the benefit of the Prisoner who ought not to complain of the duration of the Imprisonment since he hath neglected to make application for his discharge in the ordinary way I confess by the determination of the Session the Orders made the same Session are discharged but I shall not affirm whether this present Order be discharged or no because it is a Iudgment but this is not the present case for the Session continues notwithstanding the Royal Assent given to several Bills according to the Opinion of Cooke and of all the Iudges Hutton 61 62. Every Proviso in an Act of Parliament is not a determination what the Law was before for they are often added for the satisfaction of those that are ignorant of the Law Winington Solicitor General to the same purpose In the great case of Mr. Selden 5 Car. 1. the Warrant was for notable Contempts committed against us and our Government and stirring up Sedition and though that be almost as general as in our case yet no objection was made in that cause in any of the arguments Rushworths Collections 18 19. in the Appendix But I agree that this Retorn could not have béen maintained if it were of an inferiour Court but during the Session this Court can take no cognizance of the matter And the inconveniency would be great if the Law were otherwise taken for this Court might adjudge one way and the House of Peers another way which doubtless would not be for the advantage or liberty of the Subject for the avoiding of this mischief it was agreed by
have the security given by the Defendant for his appearance it is all one to him whether it be good or no. Strode contra Why must the Sheriff always aver that he has taken sufficient Sureties if their sufficiency be not material Why is an Action allowed to lie if the Sheriff take no Sureties at all since according to my Brothers Opinion the party has no interest in them If the Law be as they argue the Statute has left the Plaintiff in a worse condition then he was at the Common Law for it has deprived him of the remedy that he had before and the Amercements belong not to him but to the King Cur ' The sufficiency of the bail is not material it is only for the Sheriffs own security If he take no bail at all an Action lies against him for then he does not act by colour of this Law Atkyns The Statute is not advantagious to the Plaintiff at all unless the Sheriff let go the prisoner without taking any bail and then he must render treble damages And by the Opinion of the whole Court Iudgment was given for the Defendant Moor versus Field A Custom was alledged that all persons in a Parish that had Shéep upon their ground on Candlemas-day should be discharged of Tythes of all Sheep that should be upon their ground after in that year upon payment of full Tythes for all the Sheep that were there upon that day and this was adjudged an unreasonable Custom Serjeant Turner argued for it and cited Rolls Abr ' 2 part 647 648. Term. Hill 28 29 Car. II. Communi Banco Strode versus l'Evesque de Bath Wells and Sir George Horner and Masters QUare Impedit the Plaintiff entitles himself by vertue of a Grant of the next Avoidance made by Sir George Horner and counts that Sir George was seized in fee of the Mannor of Dowling to which the advowson was appendant and presented J. S. who was admitted instituted c. and that then he granted the next Avoidance to the Plaintiff and that J. S. died and it belongs to him to present Serjeant Barton The Plaintiff has failed in his Count he says That Sir George was seized and presented but he does not say That he presented tempore pacis F. N. B. 33. Hob. 102. 6 Co. 30. 1 Inst 249. F. N. B. 31. 5 Co. 72. Vaug. 53. Strode When the Plaintiff makes his Title by a Presentation he ought to say That it was tempore pacis but Sir Georges Title is by reason of his being seized of the Mannor of Dowling to which the Advowson is appendant So that the difference as to that will be betwixt an Advowson in gross and an Advowson appendant Cur. When a man shews a precedent Right and then alledges a Presentation in pursuance of that Right as in this case the Plaintiff does in Sir George Horner there it needs not be alledged to have been tempore pacis but where no Title is alledged so that the Presentation only makes the Title there it must be pleaded tempore pacis Davies Cutt. DAvies as Administrator to Eliz. B. a feme Covert brings an Action of Debt upon a Bond against Cutt. The Defendant pleads That Administration of the Wives goods ought de jure to be committed to the Husband who was then alive upon this there was a Demurrer and it was resolved for the Plaintiff for he is rightful Administrator till his Letters of Administration are repealed James Johnson TRespass For taking and driving away some Beasts of the Plaintiff the Defendant justifies for that he and all they whose Estate he has in such a Mannor the Mannor of Blythe have had a Toll for all Beasts driven over the said Mannor viz. ½ d. a Beast if under twenty and if above then 4 d. a score Issue being joyned upon this justification a special Verdict was found viz. That the Mannor aforesaid was parcel of the Possessions of the Priory of Blythe that the Prior had by Prescription such a Toll as appurtenant to the said Mannor that by the dissolution it came to the Crown and so to Sir Gervase Clifton and at last to one Bingley in whose Right as Servant to him the Defendant justifies but then they conclude that if the Defendant may entitle himself to it by a que estate they find for the Defendant if not then for the Plaintiff Serjeant Baldw. For the Plaintiff it does not appear whether the Toll which the Defendant claims be a Toll-thorough or a Toll-traverse or what sort of Toll it is A Toll-thorough is against common Right because it is to be taken in the Kings High-way And no Prescription can be for it unless he that claims it shew that the Subject has some advantage by it And when a man claims a Toll-traverse he must lay it to be for a way over his own Freehold Keil 148. Statham Toll 2. Pl. 236. Moor 574. Cr. Eliz. 710. Keil 152. A Toll supposeth a Grant from the Crown and therefore when the Mannor of Blythe came to the Crown the Toll was disjoyned from the Mannor and became in gross Nor can a Toll be appendant to a Mannor nor claimed by a que estate Serjeant Maynard The Iury have found exactly whatever the Defendant has disclosed in his Plea and have made a special conclusion upon a Point of pleading Toll may be appurtenant to a Mannor as well as any other profit a prendre Nor does it become in gross by the Mannor coming to the Crown The difference is as to that betwixt things that had a being in the Crown before they were granted out to Subjects and things which had not 9. Rep. The Case of the Abbot of Strata Marcella There is no such legal difference between a Toll-thorough and a Toll-traverse as has been offered the words are used promiscuously in our Books A Toll-thorough may be by Prescription without any reasonable cause alledged of its commencement for having been paid time out of mind the true cause of its beginning in the intendment of the Law cannot be known And for the que estate indeed a thing that lies in grant cannot be claimed by a que estate directly by it self but it may be claimed as appurtenant to a Mannor by a que estate in the Mannor c. Cur. accord and gave Iudgment for the Defendant Atkyns When Toll is claimed generally it shall be intended Toll-thorough and so is the case in Cr. Eliz. 710. Smith Shepheard Lord Townsend versus Hughes AN Action upon the Stat. de Scandalis Magnatum for these words viz. My Lord Townsend is an unworthy Person and does things against Law and Reason Vpon issue Not Guilty there was a Verdict for the Plaintiff and four thousand pounds damages given The Defendant moved for a new Trial because of the excessiveness of the damages and a President was cited a of new Trial granted upon that ground and no other And Atkins was for granting a new Trial. North
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
Martij prox sequentem the money is payable the same month 112 V. Tit. Survivor The Condition of a Bond runs thus viz. That if the Obligee shall within six months after his Mothers death settle upon the Obligor an Annuity of 20 l. per annum during life if he require the same or if he shall not grant the same if then he shall pay to the Obligor 300 l. within the time aforementioned then the Obligation to be void is this a disjunctive Condition or not 264 265 c. Words allowed to be part of the Condition of a Bond though following these words then the Obligation to be void 274 275 Consideration V. Action upon the Case V. Etiam 284 Constable Moved to quash an Order made by the Justices of Peace for one to serve as Constable 13 Contingent remainder Supported by a Right of Entry 92 Conventicles To meet in a Conventicle whether a breach of the Peace or no 13 Conusance V. Tit. Vniversity Copy Copy of a Deed given in Evidence because the Original was burnt 4 Copies allow'd in evidence 266 Copyhold Tenant for life of a Copyhold He in the remainder entreth upon the Tenant for life and makes a Surrender nothing passeth 199 Tenant for life of a Copyhold suffers a Recovery as Tenant in Fee-simple this is no forfeiture 199 200 Of all Forfeitures committed by Copyholders the Lord only is to take advantage 200 Coroner V. Enquest Corporation What things can a Corporation do without Deed and what not 18 Costs An Executor is not within the Statute to pay Costs occasione dilationis executionis c. 77 Cottage An Enditement for erecting a Cottage contra formam Statuti quasht because it is not said That it was inhabited 295 Covenant Action of Covenant upon the Warranty in a Fine the Plaintiff assigns his Breach that a stranger habens legale jus titulum did enter c. but does not not say that it was by vertue of an Eigne Title 66 67 101 292 293 Covenant to make such an Assurance as Council shall advise 67 Covenant for quiet Enjoyment 101 A man does assignare transponere all the money that shall be allowed by any Order of a Foreign State does an Action of Covenant lie upon these words or not 113 An Action of Covenant lies against a Woman upon a Covenant in a Fine levied by her when she was a Feme Covert 230 231 V. Ibidem exceptions to the pleading in such Action Covenant to stand seized A man Covenants to stand seiz'd to the use of the Heirs of his own body 98 121 159 V. Limitation d' Estates V. Vses County-Courts V. 171 172 215 249. County-Palatine V. 2. Counterplea of Voucher V. 8. Court of Kings Bench. It s Jurisdiction is not ousted without particular words in an Act of Parliament 45 V. Habeas Corpus Cure of Souls What Ecclesiastical Persons have Cure of Souls and what not 11 12 Cur ' advisare vult During a Cur ' adv vult one of the parties dies how must Judgment be entred 37 Custom Custom of a Mannor for the Homage to chuse every year two Surveyors to destroy corrupt Victuals exposed to sale a good Custom 202 A Custom to be discharged of Tythes of Sheep all the year after in consideration of the payment of full Tythes of all the Sheep they have on Candlemas-day 229 D. Damages EXcessive Damages no good Cause for a new Writ of Enquiry 2 Demand Requisite or not requisite 89 Departure in Pleading V. 43 44 227 289. Depositions V. Tit. Evidence Debt For Rent upon a Lease for years 3 Debt upon a Bond against two Executors they pleaded a Statute acknowledged by the Testator of 1200 li. and no assets ultra c. the Plaintiff replies That one of the Executors was bound together with the Plaintiff in that Statute 165 Devise Of a term for years V. Limitation of Estates By a Devise of all a man's Estate what passeth 100 I give Rees-Farm to my Wife during her natural life and by her to be disposed of to such of my Children as she shall think fit What Estate passeth hereby 189 A man has a Son called Robert Robert has likewise a Son call'd Robert The Grand-Father deviseth Land to his Son call'd Robert and his heirs Robert the Devisee dies living the Father 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 per eandem voluntat Does the Grand-Child take or no 267 268 A man deviseth a Rent-Charge to his Wife for her life but that if she marry that then his Executor shall pay her 100 l. and the rent shall cease and return to the Executor she does marry and the Executor does not pay the 100 l. The question is Whether the Rent shall cease before the 100 l. be paid or not 272 273 Distribution Administrators must make Distribution to those of the half-blood as well as to those of the whole 209 Donative V. 11 12 22 90. Double Plea V. 18 227. E. Ecclesiastical persons A Chapter of which there is no Dean is restrain'd by the Statute of 13 Eliz. 204 A Grant of next avoidance restrain'd ibid. Such Grant void ab initio ibid. Ejectione firmae De quatuor molendinis good Of so many Acres jampnor ' bruere without saying how many of each good 90 The Plaintiff in Ejectment dies before Judgment 252 Entry to deliver a Declaration in Ejectione firmae shall not work to avoid a Fine 10 Error A Writ of Error will lie in the Exchequer-Chamber upon a Judgment in a Scire facias grounded upon a Judgment in one of the Actions mentioned in 27 Eliz. 79 It shall not be assign'd for Error of Judgment in an inferior Court that the matter arose out the Jurisdiction but it must be pleaded 81 Escape V. 116. A Trial at Bar upon an Escape In an Action for an Escape the Defendant pleads That he let the Prisoner to bail according to the Stat. of 23 H. 6. cap. 10. and that he had taken reasonable Sureties of persons having sufficicient c. The Plaintiff replies and traverseth the sufficiency of the Sureties 227 Estoppel By the condition of a Bond. 113 Exchange of Lands Two women seized one of one Acre and another of another and they make an exchange then one of them marries before entry shall that defeat the exchange 91 Excise The Statute for Excise prohibits the bringing of a Certiorari but not Habeas Corpus 103 Executors V. Costs V. Appearance In what order Executors are to pay Debts c. 174 175 Executor dur ' minor ' aetate 174 175 An Executor must entitle himself to the Executorship to enable him to retain for his own debt 208 An Executors refusal before the Ordinary after Administration is a void act 213 Action of Debt against an Executor the Defendant pleads That the Testator made a Will but did not make him Executor therein that he