notice of any Title found for a Stranger Wherefore they held notwithstanding these Omissions in the Verdict that Judgment might be given for the Plaintiff And Tyrrell was of Opinion in the Principal Matter for the Plaintiff In his Argument he considered of divers kinds of Allegiance natural and acquired which was either local or legal As when a man is Sworn in the Leet Denizated by the Kings Letters Patents obtained by Conquest or Naturalized which Naturalization must be by Act of Parliament and cannot be limited 2 Cro. 539. 1 Inst 129. who is to all purposes a Natural born Subject An Indictment of Treason against such an one is contra naturalem ligeantiam Neither can it be confined to Place for 't is due to the Natural and not to the Politick person of the King Mo. 790. And the Plea of infra ligeantiam Regni sui Angliae was rejected in Calvin's Case in Co. and said to be never heard of before Idem est nasci idem naturalizari And he Argued That in regard Ireland hath the like Court of Parliament that England hath it hath also the same Power and conceived that the English Laws were introduced by Parliament in King John's time For in the Charter 11 H. 3. it is recited that Johannes quondam Rex Angliae duxit secum in Hiberniam Viros discretos legis peritos quorum Communi Concilio ad instantiam Hibernentium statuit c. ex diuturnitate temporis omnia praesumuntur solenniter esse acta In the 4 Inst 357. it appears that Parliaments were holden there before 17 E. 3. 2 R. 3. 12. Hibernia habet Parliamentum facium Leges And in 4 Inst 452. it is said they may Naturalize an Alien and if they do so he is all one with an Irish man born As one that purchaseth his Freedom in a Corporation hath all Immunities as amply as he that is born a Member of it Neither doth it follow from hence that an Act of Parliament in Ireland could bind England it is the Law of England Cooperating with the Act that gives the Naturalization an effect here The Act is but remotio Impedimenti As if one were Attainted by the Parliament there he should forfeit his Lands here and if that Act were Repealed he should be restored to them again yet neither Act were oligative to England The Act of Ireland is causa remota or sine qua non the Law of England is causa proxima and this of Naturalization was one of the Wonders of the Powers and Priviledges of Parliament As Legitimation of a Bastard and the like The other three Justices were of a contrary Opinion and Argued to this effect that Ireland was a Conquered Kingdom the Conquest compleated if not begun in K. Henry the Second's time in whose time there is no Record of any Establishment and being a Christian Kingdom they remained Governed by their own Laws until King John Anno 12 Regni sui by Charter for so they conceived it to be and not by Parliament for it appears that the Nobles were sworn which is not usual in Acts of Parliament neither is it Teste Rege in Parliamento introduced the English Laws yet it hath ever remained a distinct Kingdom viz. from the bringing in the Laws by King John M. Paris Hist 230. and Calvin's Case in 7 Co. 22 23. the Conquest brought it infra Dominium Regis sed non infra Regnum Angliae Oruke committed Treason in Ireland and it was held tryable by Commission by 33 H. 8. as a Treason out of the Realm 20 H 6. 8. the Judges here are not bound to take notice of the Laws of Ireland Fitzh tit Voucher 239. A man in Ireland cannot be Vouched Anders 262 263. 2 Inst 2. it is said Magna Charta nor the Statute Laws here did not extend to Ireland until Poinings Law 10 H. 7. tho' in truth it appears to be before by 8 E. 4. cap. 10. neither are they obliged by any Statute since unless named Dier 303. It is said of Lands holden in Capite in England and Ireland that there ought to be several Liverties and by several Seals 11 Ed. 4. 7. When the King went into Ireland it was held to be a Voyage Royal. And Wyld said Two Kingdoms could not be united but by Act of Parliament and there ought to be reciprocal Acts and so is my Lord Coke 4 Inst cap. Scotland But this the Chief Iustice said in his Argument was not requisite in case of a Conquered Nation which hereby had lost its Original Right of holding Parliaments but he agreed in case of Kingdoms independent one upon the other He said he had a Charter whereby Gascoigne Guyan and Callice were united to England in Ed. the 3ds time and recited to be by mutual pact upon a Peace concluded that Wales was fully conquered in Ed. 1st time whereupon they all submitted de alto basso to the King and it appears he abrogates some Laws makes some new and continues others and Wales was united and consolidated with England in H. 8 time by Act of Parliament here but there was no Act on their part neither is Ireland only a distinct Kingdom but also subordinate A Law enacted here to extend to all the Kings Dominions shall bind Ireland Writs of Error have been always brought here to reverse Iudgments in Ireland and they naturally lie as the Chief Iustice said into all subordinate Kingdoms Fitz. tit Ass 562. A Writ of Error to reverse a Iudgment given in an Assize in the County of Glamorgan and 21 H. 7. 31. B. it is said many Writs of Error have been brought to reverse Iudgments given in Callice tho' it was alledged the Civil Law there was in use So the Romans allowed Appeals out of every Province subordinate unto them as appears by the Case of St. Paul in the Acts and 't is against Nature that the Inferiour should have any influence upon the Superiour suppose a Bill of Naturalization were brought into Parliament here and rejected and after it should pass in Ireland should it have the same effect as if it had passed here If this might have been what needed the endeavours in the beginning of King James's Reign to obtain an Act for the Naturalization of all Scots and the Union of both Kingdoms when an Act in Ireland would have been as effectual and procured with much greater facility Neither is the Parliament of Ireland equal to that of England for that might be aliened by an Act of Parliament as Gascoigne and Guyan were by mutual Consent tho' the King cannot do it alone therefore King John's Grant to the Pope was held absolutely void but Ireland could not be transferred from the Sovereignty of England by any Act there for they cannot discharge themselves of their Subordination to England H. 3. granted to Ed. 1. Terrem Hibernicam and it was held to be void 40 Ed. 3. 4 Inst 357. And if they should make an Act
there that no Writ of Error should lie into England the Chief Iustice said it would be void for their Power is merely precarious as to the Parliament of England though not to the King in regard of his Charter Wherefore he said it might be questioned whether they could Naturalize at all for the King cannot alone and their Power is wholly derived from this Charter neither hath it been attempted by them until 10 Car. 1. when the Earl of Strafford was Lieutenant there Whereas it was said on the other side that to be Naturalized in Ireland was the same thing as to be born in Ireland he denied it unless they added by the Laws of Ireland i. e. the Law gives him there all the Priviledges a Native hath but this was not ligeantia nata sed data and therefore can extend no further than the Power of them that gave it and tho' it be said an Act of Parliament can do any thing that must be understood as to civil things which are but the Creatures of Men therefore may be altered and disposed at the will of the Supream Authority but natural things are not within its Power For an Act of Parliament cannot make a Man a Woman or a Man to be born in any other place than where he was really born tho' it may give him such priviledges as one hath that is born there viz. such as are within their Power and none else and 7 Co. 18. B. The time of the Birth is of the essence of a Subject born and after in Calvins Case 27. it is said natural Ligeance respecteth the time of the Birth and he cannot be a Natural Subject who was born under the Allegiance of another King for a Natural Subject is the correlative to a Natural Prince and one naturalized there might in all respects be compared to an antenatus who differed from a postnatus in these two things First He was another Princes Subject before a Subject to the King of England Secondly Such an one might have been an Enemy whereas a born Subject may be Traitor but can never be an Enemy Now the Subjects of a Prince that conquers another Kingdom become immediately Denizens of that Kingdom But not è converso as was held in Calvins Case of the antenati in Scotland But the Subjects of a King who is Homager to that King shall not be Aliens in any of his Dominions as in Wales before the Conquest of it in Edw. the 1st Time the like in Scotland as appears Dier 304. Pl. 57. A Scot was indicted of a Rape who pleaded not guilty and prayed a Tryal per medietat ' Linguae and it was denied for that a Scot was never accounted an Alien sed potius Subject ' tho' the Chief Iustice was of Opinion they ought not to have judged so there because the Homage of Scotland had been lost so long before The Statute of 5 Eliz. is that none shall set up a Trade unless he hath been an Apprentice to it by the space of seven years Suppose an Act were made in Ireland that it should be lawful for J. S. to set up a Trade tho' he had never been an Apprentice this would enable him there but no man would say that thereby he should have liberty to set up here No tho' the words of the Act were as if he had served seven years So the Law is that no man can be naturalized here but by Act of Parliament here Naturalization is a great point of State-interest therefore the King cannot do it by his Charter And the inconvenience would be very great if naturalization in Ireland should extend hither for tho' it was objected we might obviate it if found to be so by disallowing their Acts which before they pass there are sent hither and remitted under the Great Seal and so we may repeal their Acts yet it was said the like Power by consequence must be yielded to Scotland and we cannot disannul their Acts so they shall introduce what Aliens they please amongst us without controll And tho' it was said a naturalization there would do us no harm for it could never be made appear because no Certiorari could be awarded from hence thither yet it is manifest there are ways of making it appear In 42 Ed. 3 2. Lord Beaumonts Case Vide 2 Cro. 484. a Certiorari to remove a Record taken at Callis it is said that part of Scotland was within the Kings Ligeance and part without and that the King kept a Roll of such Places as he had under his Subjection and the Party was directed to petition the King to certifie whether Rosse were so or no so the King must be Party to their Acts there and therefore may certifie them or they may be given in Evidence as Foreign Laws or the Sentences in the Ecclesiastical or Civil Law Courts Now we must not always conclude a thing not to be Law because it is inconvenient but that for which there is neither Practical Custom Judicial Precedent or Act of Parliament to warrant may be well judged to be so Wyld and Archer in their Arguments did much insist upon the particular penning of this Act where the Makers did seem to intend that the effect of this Naturalization should be confined to Ireland for the Preamble recites this Your Majesties Realm of Ireland will be much impaired for want of Scottish Planters and that 100000 were planted in the Province of Vlster there it enacts That they and all Scottish shall be deemed Your Majesty's liege Subjects of this Your Realm of Ireland and this your Realm repeated almost in every Clause which would lose its force if the naturalization should be construed to have a larger extent They also took notice of the Proviso of the Act That it should not extend unto any Lands whereof any Office was found for the King and seised into his hands And here was an Office found 17 Jacobi they also mentioned the Statute of 7 Jacobi c. 2. which Enacts That the Bill of Naturalization shall be twiced read unless the Person hath received the Sacrament within a Month before and also taken the Oaths of Allegience and Supremacy To the first Tyril answered First That Naturalization could not be restrained at least not by affirmative words for it doth not say Your Realm of England and not elsewhere the Act hath also these words as born of Irish Parents as natural born Subjects and other words as full as may be also the Act of Naturalization of John and George in England hath the same words mutatis mutandis viz. of this Your Realm and in others they are more restrictive viz. from henceforth shall be deemed c. the Irish Act is that they shall be deemed Natural Subjects that they shall inherit such Lands as have descended after the first day of King Jame's coming to the Crown of England this hath no such restraint As to the Second he answered it was the Rectory only which
he had a way over the place where it is not material to the justification whither it leads it being after a Verdict when the right of the case is tried And it is aided at last by the Statute of Oxford 16 Car. And so Twysden said it was the Opinion of all the Iudges at Serjeants Inn he putting the Case to them at Dinner Norris and Cuffuil IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of six pence paid in hand the 13 of Jan. 17 Car. and that the Plaintiff would pay him 20 s a Month he promised to serve him in his Glass-house after the first Iourny of Glass and sets forth quod primum iter vitrij tunc prox sequens aggreamentum praedictum fuit 21 Feb. 17 Car. which was the year before and that the Defendant did not come to serve him After Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff had not declared sufficiently of any Iourny of Glass after the Agreement but that alledged appears to be the year before Et Adjornatur This Case being moved again Twysden said he had put it to the Iudges at Serjeants Inn and they were all of Opinion that it was well enough after a Verdict Heath versus Pryn. IN an Ejectione Firmae of the Rectory of Westbourn in Chichester upon Not Guilty pleaded it appeared upon the Evidence that the Plaintiffs Title was as Presentee of the Grantee of the next Avoidance from the Lord Lumly and Letters of Institution under the Seal of the Ordinary were produced but by reason of the times the Ordinary Parson and Patron being Sequestred no Induction followed thereupon until the Kings Restauration this Institution was 1645. Soon after the Defendant was placed in this Church by an Ordinance of Parliament and hath enjoyed it ever since and there was an Act of Parliament made 12 Car. 2. which confirms Ministers in their Possessions of any Benefice with cure tho' they came not in by Admission Institution and Induction but according to a Form used in those times in which Act there is also a Clause of Restitution of sequestred Ministers to such Benefices as they had been seized of by taking the profits It was alledged on the Defendants side that the Plaintiff proving nothing of a Presentation the Institution could not be admitted as Evidence of it especially in this case where the Induction was so long after to which the Court did incline And then the Oath of the Grantee of the next Avoidance was offered which was not admitted altho' his Interest was executed by the Presentment And it was said that an Assignor might be sworn a Witness to the Assignment of a Lease where there were no Covenants It was also said that the Plaintiff was not within the clause of Restitution of the Act of 12 Car. because he was never seized by taking the Profits which cannot be until Induction according to Hare and Bicklers Case in the Commentaries quod suit concessum To which it was replied That neither was the Defendant within the clause of Confirmation because the Rectory in question was not a Benefice with cure for there is belonging to it a perpetual Vicaridge Endowed and the Vicar comes in by Admission Institution and Induction who performs Divine Service pays the Synodals and Procurations repairs the Chancel and therefore it hath been adjudged that such a Vicar shall have Arbores in Coemiterio And it was said that the Statute of 21 Hen. 8. against Pluralities doth not extend to Rectories where there are Vicaridges Endowed And Linwood describes a Benefice without cure cujus cura Vicariis perpetuo exercenda est Otherwise where the Vicar is Temporal and removeable And the difference is inter curam actualem habitualem And 't is the Cure that the Rector hath and so hath every Bishop in his Diocess who when he gives Institution saith accipe curam tuam et meam but the Act only extends to the first It appeared also on the other side That the Parson had come once or twice a year Preached and Administred Sacraments and that without the Vicars leave and also paid First-fruits Vpon all this matter the Opinion of the Court was That the Parson had a concurrent Cure with the Vicar and resembled it to the case where there are two Incumbents in one Church and coming in by Admission Institution and Induction the Vicar could not discharge him of the cure of Souls But Donatives which are conferred by Laymen are sinè cura Note The Plaintiffs Counsel would have denyed the Act of 12 Car. to be an Act of Parliament because the were not Summoned by the Kings Writ but the Iudges would not admit it to be questioned and said That all the Iudges resolved that the Act being made by King Lords and Commons they ought not now to pry into any defects of the Circumstance of calling them together neither would they suffer a point to be stirred wherein the Estates of so many were concerned Vid. Hob. 109. 33 H. 6. 19. Notwithstanding all this the Jury found for the Plaintiff It seemed by the Court in this case that Letters of Institution must be under the Episcopal Seal sed vide Cro. lib. 1. 249. Vid. postea The King against Burford HE was Indicted for that he scandalose contemptuose propalavit publicavit verba squentia viz. That none of the Justices of Peace do understand the Statutes for the Excise unless Mr. A. B. and he understands but little of them no nor many Parliament men do not understand them upon the reading of them And it was moved to quash the Idictment for that a man could not be Indicted for speaking◠of such words and of that Opinion was the Court But they said he might have been bound to his Good Behaviour Stones Case A Writ of Priviledge was prayed for Stone an Attorney of the Court who was Copyholder of a Mannor where the Custom was for the Homage to chuse one of the Tenants to collect the Lords Rents for the year following and they elected him But it was said that this might be taken to be parcel of his Tenure for the Lords use to seize the Land for not executing of it and his Priviledge ought not to deprive the Lord of the Service of his Tenant 1 Cro. 422. In the Book of H. 6. The Archbishop of York being bound by Tenure to Collect the Tenths pleaded the Kings Letters Patents in discharge thereof and they were disallowed and tho' Attorneys have had their priviledge where they have been pressed Souldiers as in Venables Case 1 Cro. 8. Co. Entries 436. Springs Case and 1 Cro. 283. and where by Custom it came to an Attorneys turn to be Constable vid. Rolls 2. part 276. yet these are publick Services to which every one is bound but Priviledges may be allowed to exempt particular persons as the King may grant to one that he shall not be of
the first Man for he is only to compound the business if he can Twisden The discharge being set forth in an Order we must intend it duly made 't is the common practice to go to the Sessions first It was moved at first that it did not appear that the Plaintiff had Notice but that Point was waided for being in a judicial proceeding it shall be intended Et Adjurnatur Lucy versus Levington PAsch ult Rot. 96. Covenant by the Plaintiff as Executor of J. S. for that the Defendant covenanted with J.S. his Heirs and Assigns to levy a Fine c. and that they should enjoy the Lands against all persons claiming under Sir Peter Vanlore and then he says that Sir Robert Crooke and Peter Vandebendy in the Testators life time did enter claiming under Sir P. Vanlore c. The Defendant pleads That he had a good and indefeasible Title in the Lands at the time of the Covenant by vertue of certain Fines from Sir Ed. Powel and his Wife but that in 13 Regis nunc there was an Act of Parliament by which these Fines were made and declared to be void and that Sir R. C. and P. Vandebendy had Title and entred by reason of the Act and not otherwise The Act which was pleaded in haec verba recites that certain Men came with armed force and thereby extorted and took the Fines c. And to this the Plaintiff demurred It was urged for the Defendant That this Title was by matter subsequent to the Covenant and not any thing which was in being then as 9 Co. 106. Sir T. Gresham conveys Land to certain uses with power of Revocation and then does revoke and Aliens and dies the Revocation was not warranted by his power but was after made good by Act of Parliament and then Process went out against his Widow for a Fine for the Alienation of Sir T. G. the Lands being of capite tenure but she was discharged because the Alienation had its effectt by an Act of Parliament which can do no wrong Twisden 'T is hard this should be a breach for the Defendant cannot be intended to Covenant against an Act of Parliament a thing out of his power Baron and Feme levied a Fine J. S. Covenants that the Conusee shall enjoy it against all lawfully claiming from B. and F. brings Dower after the Death of B. the Conusee does not plead the Fine but suffers Judgment and brings Covenant against J.S. and adjudged against him for the Covenant shall not extend to a Right which is barred and besides she did not claim lawfully There is an Old Book which says that if an Attainder be reversed by Parliament the person shall have Trespass against him which took the profits of his Land in the interim Hale My Lady Greshams Case is not like this for there the party was in by the Queens consent to the Alienation by the Act she passed but here the Covenant is broken as much as if a Man recover Land and then sell and Covenant thus and then it be evicted in a Writ of Right for this is in the nature of a Judgment Tho' it be by the Legislative power it may be the prospect of this Act was the reason of the Covenant nor has the Defendant reason to complain for the Act was made because of his own fraud and force Every Man is so farr party to a private Act of Parliament as not to gainsay it but not so as to give up his Interest 't is the great question in Barringtons Case 8 Co. the matter of the Act there directs it to be between the Forresters and the Proprietors of the Soil and therefore it shall not extend to the Commoners to take away their Common Suppose an Act says Whereas there is a Controversie concerning Land between A. and B. 'T is Enacted That A. shall enjoy it This does not bind others tho' there be no saving because it was only intended to end the difference between them two Whereupon Iudgment was given for the Plaintiff It was agreed by all the Justices that tho' the Covenant were made only to J. S. his Heirs and Assigns and it were an Estate of Inheritance yet the Breach being in the Testators Life time the Executor had well brought the Action for the Damages Peter versus Opie IN an Assumpsit the Plaintiff declares That there was an Agreement between him and the Defendant that be the Plaintiff should pull down two Walls and build an House c. for the Defendant and that the Defendant should pay him pro labore suo in circa divulsionem c. 8 l and that in consideration that the Plaintiff assumed to perform his part the Defendant assumed to perform his and the Plaintiff avers that he was paratus to perform all on his part but that Defendant had not paid him the Money And after a Verdict for the Plaintiff it was moved in Arrest of Judgment That he did not aver that he had done the work Hale Pro labore here makes a Condition precedent and therefore the performance of the work ought to have been averred for tho' in case of a Reciprocal Promise performance need not be averred yet if the Promise refers to an Agreement which contains a Condition precedent the performance of that must be averred as if I should promise one to go to York and in consideration of that he promise to pay me 10 l there needs no averment of my going to York otherwise if the Counter promise were to pay 10 l for my going to York So if the Counter promise were to do a thing after a time ascertained or to be ascertained it must be averred that the time is past Therefore that it is said by way of Reciprocal promise will not concern much for every Agreement is a Reciprocal promise but the matter is what the Agreement is Here tho' the Reciprocal promise be the foundation of the Consideration yet 't is to be considered that it refers to a Conditional promise or an Agreement and the Promise obliges not the Defendant to do it otherwise than according to the Agreement Now to shew this pro labore makes a Condition precedent Suppose the Agreement to be in writing thus Memorand that J.S. agrees and promises to build and J. N. promises to pay him so much for his pains it cannot be taken but that the building must be precedent to the payment 'T is the common way of Bargaining and in common dealing men do not use to pay before the work be done it would be inconvenient to give cross Actions in such cases especially since 't is likely that the Workman is a poor Man 'T is true if there be a time limited for the payment which time may fall out before the work or thing be done there the doing it is not a precedent Condition Vivian and Shipping 3 Cro. An Award that one should pay 10 l and in Consideration thereof the other should become bound
Order And Wild said It was well Westminster-Hall Doors were open Kent versus Derby INdebitatus Assumpsit The Plaintiff declared that the Defendant being indebted to him in a certain sum pro diversis mercionis ante tunc venditis deliberatis ad requisitionem of the Defendant to a Stranger did promise to pay c. After Verdict for the Plaintiff it was moved in Arrest of Judgment that this was but a Collateral Promise and that no Indebitatus Assumpsit would lie for the Debt was from the person to whom the Goods were sold Wild and Jones held the Action well brought and cited an Action sur indebitatus Assumpsit lately in this Court against one for Money promised in Marriage with his Sister Vid. R. 120 122. Sed Rainsford Chief Justice contra But the Plaintiff had Judgment Termino Sanctae Trinitatis Anno 29 Car. II. In Banco Regis Howlet versus Carpenter THe case upon a Special Verdict in Ejectment was this a Copiholder of a Dean and Chapter levied a Fine with Proclamation and five years passed without any Seizure or Claim by him that was Dean at the time of the Fine levied and whether the succeeding Dean was barred was the question And the Court at the first opening held clearly that he was not for if so the Statutes 1 13 Eliz. which restrain the Alienation of the Church Revenue would be of small effect 11 Co. Magd. Colledge's Case The Company of Ironmongers versus Nailer IN Trespass upon Not guilty a Special Verdict was to this effect that Nailer being one of the Officers for Collecting of the Duty of Hearth Money distrained for a certain Sum accruing for the Chimneys of a new built House which had never been inhabited neither did it appear that there had been any account of the Chimney's thereof returned into the Exchequer There were made three questions First Whether any thing shall be paid for Chimneys in such new built Houses Secondly Whether the Distress can be for that Duty in other places than at such Houses Thirdly Whether there can be any Distress taken before such time as the account of the Chimneys be returned into the Exchequer As to the first the whole Court were clear of Opinion that such new Houses which were never inhabited were chargeable for the words of the first Act are express viz. That every Dwelling and other House and Edifice other than such as are after excepted shall pay And there is no exception that extends to such House altho' it were objected that the Proviso in the Act of 14 is that the Duty shall be chargeable only on the Occupier and every Clause in the Act runs upon Occupiers and the Act of 15 recites the Kings Revenue to have been much obstructed for want of just Accounts of Chimneys under the hands of the Occupiers and the Act of 16 charges the next Occupiers with the half years payment where the former Occupâ—er removed before it grew due which implies if an House stood empty for longer time it should not be paid Again it is appointed to be demanded at the House and in case of refusal to distrain which shews an intention that it should be inhabited But it was answered That the words before mentioned were so full as not to be avoided and that there were sundry Clauses also in the Act which did import an intention that empty Houses should pay and so hath been the practice ever since the Act and that there were no manner of difference between these Houses which were new built and other Houses that in case there was no Tenant the Owner was understood to be Occupier as if the Owner grants an House in his Occupation it would be well tho' he did not inhabit it himself if it were inhabited by no other The Act of the 13 and 14 appoints notice to be fixed upon the Door for an account to be given in case there be no Inhabitant and six days after such notice to enter and take account which shews they meant empty Houses should be chargeable and why not as well as for Chimneys whereof no use is made As to the second Point the Distress it well taken tho' it doth not appear to be after an account made into the Exchequer for the duty accrues before and that is provided only that the King might be apprized of the number of Chimneys and so there might be a check upon the Collectors when they make their Accounts neither is any Process appointed to go out upon such Return of the number of Chimneys The Statute of 21 Jac. appoints Informers to be Sworn but if an Informer be not Sworn 't is but a neglect in the Officer The Proceedings are notwithstanding sufficient Mo. 447. where 21 H. 8. appoints the Enrolments of Dispensations in Chancery yet if not done it does not invalidate the Dispensation Thirdly The Distress was resolved to be well taken being in the Kings Case for an Act of Parliament shall be expounded according to the reason of the Law in such Cases Note Livesay the Secondary craved the Opinion of the Court whether he should tax treble Costs in this Case for the Act of 14 gives treble Costs where any person is prosecuted for what he should do in execution of that Act c. Now that Act appointed the Constables c. to Collect and Execute the Act. But now by vertue of the subsequent Acts for the Chimney Money the Collection c. is by other persons and the doubt is Whether they can have treble Costs by the Act of 13 and 14. But the Attorney General who was of Counsel with the Defendant said he would not insist upon treble Costs at this time because this Cause was brought on by consent for the determination of the doubt about new empty Houses paying but desired that it might be without prejudice Baker versus Bakers A Prohibition to the Delegates The case was that Administration had been granted to the Wife upon which an Appeal was brought by the Mother of the Intestate upon this Allegation in t ' al' That the Wife had Covenanted that she would not intermeddle in the Administration in regard she had been otherwise sufficiently provided for for it was said that the Ecclesiastical Judges had not to do with such matter But it was objected on the other side that it fell incidently into the principal matter whereof they had Conuzance but they might be prohibited if they judged the effect of it contrary to our Law neither did it appear that the Delegates would admit of this Allegation and there were no presidents for a Prohibition quia timer But on the other side it was said that there would go a Commission out to examin this matter of course before the Judges Delegates should sit to hear the merits of the case and that would take up so much time that many of the Goods being bona peritura would be lost but note the Ecclesiastical Judges may provide for the
the Sheriffs Farm but he made Bayliffs of his own there and they were within the Survey of the Court of Augmentations so I say it refers only to those Hundreds which made a part of the Sheriffs Farm 2. None of these Statutes extend to prohibit a Grant of an Hundred in Fee I apprehend my Lord meant a Regrant of an Hundred which before those Statutes had been granted out in a Fee for 2 E. 3. c. 12. rejoyns and prohibits the Grant of those Hundreds only which were set to Farm by the King for term of Life or otherwise The very words of the Statute 14. E. 3. c. 9. make provision for the Hundredors in Fee 't is said that they which have Bayliwicks or Hundreds c. shall answer for their Bayliffs Fitzh Petition 1. there is a complaint of one who is turned out of an Hundred he had in Fee because of the Statute called there the New Statute And perhaps these Hundreds were seised upon the like pretence and that was the matter of the Presentment mentioned in the Grant of E. 3. or rather Regrant 3. Neither this Statute nor the Decree or Report of the Case in this Court does extend to this Case for they are not to be understood of nor extended to a Case wherein Retorna Brevium is granted were not Retorna Brevium added 't is true the Grant of the Bayliwick might be void where an Hundred is granted at this day the Grant is good but by Virtue of this Statute the Sheriff may put in and use his Bayliffs there the collection of the Profits c. the Grantee shall have but the execution of Writs is in subserviency to the Sheriff still I speak where no Retorna Brevium is granted this Bayliff shall not be a Bayliff to the Sheriff in spight of his Teeth and this was the very Case of Fortescue he had a Grant of the Three Hundreds of Newport We find the Farm of these Hundreds formerly here in the Exchequer the Firma Ballivatus in Chiltern c. the Farm of the three Hundreds of Newport was 5 l then in 13 E. 3. 7 l then in 23 E. 3. 9 l then in R. 2. 10 l c. these were the ancient Farms Queen Elizabeth grants a Lease of these three Hundreds to Fortescue for three lives at a certain Farm but does not grant him Retorna Brevium This grant indeed was adjudged void viz. as to the excluding of the Sheriff observe what my Lord Coke saith in the Case by the Statute c. saith he Hundreds are rejoyned as to the Balywick of the same to the Counties and all grants made of the Balywicks of Hundreds since that Statute are void and the making of the Bayliffs thereof belong to the Sheriff for the better execution of Iustice and of his Office and so it was resolved c. the Grant at this day is good as to what belongs to the Lord of an Hundred but not as to the execution of Process which belongs to the Sheriff so that I say 1. Consider the Grantee as an Officer for the collection of the Profits c. and so it is a good Grant 2. Consider him as an Officer for the Kings Process and so 't is void because the Sheriff ought not to have a Bayliff put upon him and the Grantee shall not be the Sheriffs Bailiff whether the Sheriff will or no. But 3. I say if the Grant be with Retorna Brevium then it is a good Grant as to the Bayliwick and all for in that Case the Sheriff is at no inconvenience for the Grantee shall do all and shall be liaable to all the Escapes and all things done or suffered by him My Lord Coke was very wary in what he said about this matter for he knew and the truth is if this Statute should make the Grants of Hundreds void it would call in question most of the Hundreds in England and particularly would shake his own Grants of Hundreds which he passed when Attorney General and some of which his Posterity enjoy at this day 8 H. 7. fol. 1 2 3 4 5. and 13 H. 7. fol. 19 20. Pl. 2. is a great Case concerning an Hundred granted by Ed. 4. and afterwards by R. 3. wherein there are many Questions much argued whereof the chief is whether a Leet may be granted and pass as part and parcel of a Hundred and 't is adjudged that it may but it is the Opinion of all on all sides that the Grant of an Hundred is good and so much is implied and concluded in the Iudgment Coke upon Amerediths Case 9. Co. 29 30. there Iudgment is given that the Grant of the Hundred is good I know that in 11 H. 4. by Special Act of Parliament vid. 1 H. 4. c. 11. the Sheriffs had an allowance made to them for several Hundreds which had been parcel of their Farms and were granted away which could not have been if this Statute had made the Grants void I think there ought to be Judgment for the Plaintiff Nevertheless I am glad with all my heart that we are delivered of this Case for truly if I could have found any Thing to satisfie my Iudgment I would have given Iudgment another way both for the General Concern and for the sake of the County of Gloucester which I know will suffer much by this thing One short Act of Parliament of three Lines viz. That all Process should go with a non omittas propter aliquam libertatem saving still the Liberty of a Mans House which indeed the Law in all such Cases saves now would avoid a great delay of Justice many Suits and Vexations grievous Wrongs and oppressions and would do more good to the Kingdom than all the Liberties of Retorna Brevium have been worth these 100 years for as they are used now they are nothing but a foundation of Brocage and Mischief they are a Feather in his Cap that has them but they are a Thorn in the Foot of every one that has to do with them For first the Party must go to the Undersheriff and there he is handled then through another Purgatory to the Bayliff of the Liberty and there he is handled and then to the Underbayliff and there he is handled and then to the Sheriff again I confess I drew a short Act once and I wish some good man would now promote it It is adjourned into the Exchequer Chamber THE CASE OF COLLINGWOOD and PACE IN THE Exchequer Chamber The Lord Chief Baron HALE's Argument IN the Argument of this Case I shall suppose as clear and unquestionable these three things viz. First That Patrick the Son and William the Grandson of Nicholas the elder Brother are not inheritable to John the Earl because though they are both Denizens born yet Nicholas their Father thorough whom they must convey their Pedigree was an Alien Secondly That as Patrick and William cannot inherit so neither can they obstruct the Discent to John the Son of
that he should suffer a Recovery his Term is not drowned 195 Tenant for Life with power to make a Jointure suffers a Recovery the Power is extinguished 226 227 Good tho' a Stranger that hath nothing in the Land be made Tenant to the Praecipe for a Recovery being a Common Assurance is to be favourably expounded 358 Whether a Recovery can be suffered where the Tail is expectant upon an Estate for Life the Tenant for Life not being made Tenant to the Praecipe 360 Release See Obligation Of all Demands its effect 314 Remainder Contingent Remainder by what Act destroyed 188 306 334 345 No Cross Remanders upon Construction in a Deed tho' sometimes in a Will 224 Rent Difference between a Rent and a Sum in Gross 99 Lease by Tenant in Fee and Rent reserved to the Lessor Executors Administrators and Assigns the words Executors and Administrators void 162 A Rent may be reserved by Contract without Deed 242 Where Rent shall be suspended and where apportioned by the Lessors Entry 276 277 Reputation Lands repurted parcel of a Mannor shall pass in a Recovery under the Word Appurtenances 52 Retorn Sheriff amerced for retorning Non est inventus on the Writ brought against his Bayliff 12 24 Sheriff retorns that Goods came to the Executors hands elongavit vendidit disposuit ad proprium usum suum convertit this tantamounts to quod devastavit 20 221 Sheriff retorns upon a Fi. fa. that he had taken Goods and that they were rescued from him not good 21 Action against Sheriff for a false Retorn of Cepi Corpus 85 Revocation What shall be a good Revocation upon a Power reserved 278 infra S. Scandal See Action upon the Case for Slander Scandalum Magnatum I do not know but my Lord of P. sent G. to take my Purse Action lies 59 Difference between an Action on the Statute of Scandalum Magnatum and a Common Action of Slander the Words in one Case shall be taken in mitiori sensu and in the other in the worst sense against the Speaker that the Honour of Great Persons may be preserved 60 Sewers Commissioners of Sewers and their Proceedings subject to the Jurisdiction of the King's Bench notwithstanding the Clause in Statute 13 Eliz. cap. 9. 67 Sheriff Sheriff may bring Trover for Goods taken in Execution and after taken away by the Defendant in the first Action 52 Soldiers Every Officer and Soldier as liable to be arrested as a Tradesman or any other person whatsoever 251 A Captain and Serjeant committed to Newgate for a great Misdemeaner in rescuing a Soldier ibid. Statutes When a Statute makes an Offence the King may punish it by Indictment but an Information will not lie when a Statute doth barely prohibit a thing 63 31 Ed. 1. Statute of Winton in an Action upon this Statute what taking shall be sufficient to discharge the Hundred 118 235 4 Ed. 3. cap. 7. Action lies for Executors upon this Statute for cutting and carrying way Corn 187. This Statute hath been always expounded largely ibid. 3 H. 7. cap. 2. A Wife forcibly married contrary to this Statute shall be admitted to give Evidence against her Husband 244 5 Eliz. cap. 4. For using a Trade not being Apprentice thereto 8 51 142 326 346 364. This Statute in relation to Apprentices expounded 174 31 Eliz. cap. 7. Of Cottages no Offence against this Statute to erect a Cottage if no body inhabits therein 107 43 Eliz. cap. 2. Poor By this Statute that enables Justices of Peace to tax a Neighbouring Parish the Justices may tax any of the Inhabitants and not the whole Parish 350 21 Jac. cap. 26. Of Felony to Personate 301 12 Car. 2. Of Ministers A good Act being made by King Lords and Commons and any defects in the Circumstances of calling them together ought not to be pried into 15 This Act extends only to Benefices with Cure ibid. 14 Car. 2. cap. 10. 16 Car. 2. cap. 3. Harth-mony Smiths Forges shall pay 191 192. So empty Houses 312 14 Car. 2. cap. 33. Of Printing Seditious Books 316. 16 Car. 2. cap. 7. Of Gaming Articles for above 100 l at a Horse Race within this Statute 253 254 17 Car. 2 cap. 2. Of Non Con-Ministers explained 328 29 Car. 2. Of Frauds and Perjuries No Promise made before the 24th of June within this Act 330. What Contracts within ths Act 361 31 Car. 2. Habeas Corpus Prayer must be made by Council wiihin the first Week after the beginning of the Term 346 T. Tail THO' a Term in gross cannot be entail'd yet where man hath a Term in point of Interest and at the same time the Trust of the Inheritance here he may entail the Trust of the Term to wait upon the Inheritance 194 What Words create an Estate Tail and what in Remainder contingent or vested 215 230 231 Estates Tail how forfeitable for Treason 299 infra A Devise to a Man and the Heirs Males of his Body with a proviso if he attempts to alien the Estate to cease the Condition void 321 322 A Limitation in Tail how it operates 378 Tender Tender and refusal is as much as payment 167 Tender where not good 252 261 Teste Where the Teste of a Writ before it was taken out is notwithstanding good 362 Tythes May be paid of a Warren by Custom 5. So of Doves and Fish ibid. Whether an Executor may bring Debt upon the Statute 2 E. 6. for Tythes due to the Testator 30 31 Where and what Modus shall bar the Recovery of Tythes in specie 32 A Prescription cannot be suggested time out of mind to pay a Modus for Tythe Hops since they were not known in England till Queen Elizabeth's time 61 Tythes of VVood tho' not Fewel payable unless exprest to be burnt in a House for the maintenance of Husbandry 75 Treason In Coyning and Clipping the Judgment 254 For raising a Rebellion in Carolina 349 Trespass See Pleading Quare Clausum fregit and threw down his Fences what Plea in Justification good 221 Continuando in Trespass where good and where not 363 Trust See Tayl. A Use in former time the same with what a Trust is now 130 Where a Trust for Life Remainder over with Power of Revocation is forfeitable and where not 128 infra Whether a Trustee is compellable to produce Writings or the Key of the Box wherein they are against the Interest of the Party for whom he is Trustee 197 Tryal See Venue What shall be Cause for new Tryal what not 30 Justices of Assize may try Informations tho' commenced before the Justices of a former Assizes 85 181 V. Venue WHere a Deed is forged at S. and given in Evidence at D. from whence the Venue ought to come in an Information thereupon 17 A Breach of Covenant assigned in Barwick the Venue shall arise from the next place in Northumberland 58 Judgment by Nihil dicit reverst after a Writ of Enquiry executed because no
1 W. M. After which Judgment for the Defendants 166 That the said Defendants shall go sine die and have their Costs 167 Averment that the said Judgment remains in full force That the Goods in the said Action of Trespass and this of Trover are the same That the Conversion in this Action and the Taking in the other is the same That the Cause of Action was the same in both And that the Plaintiffs and Defendants are the same Et hoc parati sunt verificare unde petunt Judicium si praedicti the Plaintiffs Actionem suam versus eos habere debeant c. Not guilty to the residue of the Goods The Plaintiffs demur The Defendants joyn 168 Vsury Pleaded Vid. Debt 7. Way Action for stopping it Vid. Action on the Case 5. WE all knowing the Great Learning and Judgment of the Author do for the Benefit of the Public approve of and allow the Printing and Publishing of this Book Intituled The Reports of Sir Peyton Ventris Kt. Late One of the Justices of the Court of Common-Pleas J. Som̄ers C.S. J. Holt Geo Treby Ed Nevill Joh. Powell W. Gregory N. Lechmere Tho. Rokeby G Eyre Jo Turton John Powell Sam. Eyre April the 20 th 1965. The Second Volume TERMINO SANCTI HILLARII Anno Vicesimo primo secundo Caroli Secundi IN COMMUNI BANCO Craw versus Ramsey IN an Ejectment of Lands and the Rectory of Kingston upon Thames in Surrey Vpon Not Guilty pleaded the Jury found a Special Verdict to this effect viz. That Robert Ramsey Born in Scotland before the Accession thereof to the Crown of England had Issue four Sons Robert Nicholas John and George Antenati Robert died they do not find when leaving Issue three Daughters Margaret Isabel and Jane who were also Aliens and alive 1 Octob. 14 Car. 1. Nicholas had Issue Patrick born in England 1 May 1618. They also find that at the Parliament holden 10 Car. 1. in Ireland it was Enacted That all Persons of the Scottish Nation should be reputed the Kings Natural Subjects to all intents constructions and purposes of that his Realm of Ireland as if Born there And they find the Act of Parliament at large Nicholas Ramsey was alive at the making of that Act. John the third Son afterwards Earl of Holderness was Naturalized by Act of Parliament in England 1 Jacobi and purchased the Lands and Rectory in question and being seised 22 Jac by Indenture Tripartite between him of the First part Sir William Cocke and Martha his Daughter of the Second part and Charles Lord Effingham of the Third part In Consideration of a Marriage to be had between him and Martha did Covenant to levy a Fine to the use of himself for Life and afterwards to Martha for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs And 29 Septemb. 22 Jac. the Marriage was had and the Michaelmas Term after a Fine was Levied accordingly The 24 of Jan. 1 Car. 1. the Earl died without Issue Martha Entred and was seised for her Life and died 17 Car. Et eodem anno it was found by Office that the Earl of Holderness died seised of the Rectory as before and without an Heir and that King Charles anno decimo granted this Rectory to one Murray George the fourth Son of Robert was Naturalized by the Parliament here 7 Jac. He had Issue John the Defendant Nicholas died Patrick his Heir in 1651. bargained and sold to the Earl of Elgin and one Sydenham virtute cujus vigore Statuti c. they were seised prout Lex postulat and in 1662. bargained and sold for years to Amabel Countess of Kent and Jane Hart and afterwards Released to them and their Heirs in 1665. They being seised bargained and sold by Lease and Release also to Pullen and Neale who Entred and bargained and sold to Sir Lionel Talmash and West the Lessors of the Plaintiff upon whom John the Defendant Entred Vpon which the Action is brought and the great Question in the Case was Whether Patrick the Son of Nicholas might claim these Lands as Heir to the Earl of Holderness by virtue of the Act of Parliament in Ireland 10 Car. or that they should descend to the Defendant the Son of George Naturalized the 7 of Jac. in England Wyld and Archer who Argued first were of Opinion That however the Point was adjudged the Plaintiff could not have Judgment upon this Verdict for they do not find that Patrick entred or was seised but that he in 1651. did bargain and sell c. Virtute cujus the Bargainees were seised prout Lex postulat and then bargained and sold in 1662 and do not so much as find their Bargainees seised prout Lex postulat But they find the Defendant Entred and so the primer Possession is in him which is a good Title against the Plaintiff for whom none is found it not being found that Patrick Entred Again If the Naturalization in Ireland will serve in England the Title appears for the Daughters the Heirs of Robert the eldest Son for 't is found that he died but not when so it might be after the Act of 10 Car. But Tyrrell and Vaughan Chief Justice differed in these two Points As to the First They said it would be intended Patrick entred for a Verdict that leaves all the Matter at large to the Iudgment of the Court will be taken sometimes by Intendment as well as where the Jury Conclude upon a Special Point 2 Cro. 64. find an Incumbent Resigned the Resignation shall be intended accepted So in 4 Co. Fullwood's Case it was found that one came before the Recorder of London and Mayor of the Staple recognovit se debere c. and did not say per scriptum suum Obligatorium nec per formam Statuti yet intended so Vid. Hob. 262. And where they find the Bargainees seised prout lex postulat that doth not leave it doubtful whether seised or no but whether by right or wrong for Seisin must be taken as found expresly Neither do they find any other in possession nor that the Defendant made any Claim in Twelve years after which enforces the Intendment as before And it is found expresly that Pullen and Neale Entred in 1665. so that the Defendant had not the primer Possession however or if he had he should not have Judgment if no other Title were found for him as is Resolved in 1 Cro. 42. Hern and Allen's Case As to the Second It shall be intended Robert died before 10 Car. For he is found an Alien and shall be presumed to have continued so during his Life unless found to the contrary then the Discent to the Daughters is obstructed by the Incapacity of their Father And tho' when the Title is found for the King the Court shall adjudge for him because the Kings Courts are intrusted with his Rights 't is not so of any other person but they shall take no
they have been favourably Construed A Mannor in Reputation hath passed by the name of a Mannor in a Recovery Sir M. Finch's Case in Co. and in 5 Co. Dormer's Case Common Recoveries have been admitted of an Advowson All here is to be taken as one Conveyance A Deed expressing the intent may abridge the Recovery in the number of Acres 2 Co. 76. 'T is true in case of the King as that in Mo. 710. there shall be no larger Construction than the express Words import So where the Intent appears as that in Dyer 261. B. North Chief Justice Wyndham and Atkyns Scroggs absent but said by the Chief Justice to be agreed were of the same Opinion and that Common Recoveries were not to be overthrown by nice Constructions and that the Inconvenience objected against the Intent being explained by a Pocket Conveyance was the same where a man had several Lands in the same Vill that of late they have directed the Cursitors to make out Writs of Lands in Parochia They said that there was no Case express against this and that it was the stronger because found in the Verdict that he which suffered the Recovery had no Lands in the Vill and therefore must be void if not extended to the Parish Termino Paschae Anno 32 Car. II. In Communi Banco The Case of Dodwell and the University of Oxford A Prohibition was prayed to the Chancellors Court of the University of Oxford in the behalf of Dodwell who being a Townsman of Oxford was Libelled against in the said Court upon a Statute or By Law of the University made in King James's time that whoever Privilegiatus sive non privilegiatus should be taken Walking in the Streets at Nine of the Clock at Night or after having no reasonable Excuse to be allowed by the Proctor c. should forfeit 40 s c. whereof one Moiety was to go to the University and the other to the Proctor c. that should take him And that Dodwell was taken walking abroad at that Hour and being demanded a Reason thereof he refused to give any Account causa contemptus ad morum reformationem this Libel was Exhibited The Prohibition was moved for the last Term but in regard the Court observed it touched the Jurisdiction of the University on the one hand and concerned the Liberties and Rights of the Townsmen on the other hand they deferred the granting of it until they should hear Counsel on both Sides which was appointed this Term. And now sundry ancient Charters were shewn by which was granted to the University a Iurisdiction tam in Laicos quam in alios and a By-Law made above 200 years since against Night-walking with the penalty of 40 s upon the Offender and Presidents of Proceeding thereupon in the Chancellors Court and that they were as well Guardians of the Peace by Prescription as by Charter And an Act of Parliament of 13 Eliz. was shewn whereby their Jurisdictions and Priviledges and Statutes were Confirmed And altho' the Mayor hath also a Commission of the Peace yet 't is subordinate and he swears Fealty to the Chancellor Curia This Libel is grounded upon a By-Law of 7 Jac. and being subsequent to that Statute of 13 Reginae it is questionable whether warranted by it or no This By-Law and Proceeding cannot be grounded nor derive Authority from their being Guardians of the Peace by Prescription as it seems they are by 9 H 6. 44. For without Act of Parliament or express Prescription a Corporation cannot make a By Law to bind those which are not of the Body Justices of the Peace cannot ordain a Penalty for a Crime without their Jurisdiction and the Proceeding in the Chancellors Court which is according to the Civil Lawâ— cannot be warranted by the Kings Charter For no Court other than such as proceed according to Law can be unless by Prescription or Act of Parliament wherefore in regard if the University should Intitle themselves to this Jurisdiction by Prescription it were properly triable by a Jury And if upon the Act of 13 Eliz. Matter of Law might arise how for the Act might extend North Chief Justice Atkyns and Scroggs thought it was not fit they should determine those Questions upon a Motion but inclined to grant the Prohibition and propounded to the parties to agree that the Libel should be amended wherein it was grounded upon the By-Law made 7 Jacobi which being subsequent to the Act of 13 Eliz. the Merits of the Cause would not be brought before themselves to determine the Grand Points which was agreed And then the Court said that they would grant a Prohibition and let the other Plead c. For North said that they did often deny a Prohibition tho' it were a Writ ex debito Justitae where they saw no Colour for it But if any material Questions were like to arise it was proper to grant it and not to determine them upon Motion but upon pleading to the Prohibition and therein it differed from a Habeas Corpus which was to be inst aly granted because the party is in Prison but there is no such speed requisite in a Prohibition But Wyndham was against the Prohibition in the Case at Bar for he took it that the By-Law 7 Jac. was but in Confirmation of that made before and as a Renewing of it which he took to be confirmed by the Act of 13 Eliz. Nota Scroggs said that Nine of the Clock could not be held such an Hour as it should be a Crime for a Townsman to walk at no more than Three in the Afternoon Tho' for Scholars it might be reasonable to restrain them but no Reason that Townsmen should be subjected to such Rules as were proper for Scholars And upon this he much grounded his Opinion for the Prohibition Anonymus IN an Action of Trespass the Defendant pleaded That the Plaintiff was Impropriator of such a Rectory and that he was sued in the Ecclesiastical Court and by Sentence there the Profits were sequestred for the Repair of the Chancel To which the Plaintiff demurred supposing that by 31 H. 8. the Profits of Rectories Impropriate were made Lay Fee and so not subject to be sequestred by the Court Christian and therefore it was supposed that the Lay Impropriator could not sue for Tythes in the Spiritual Court. For which Cause 32 H. 3. was made to empower Lay-men to recover them and 35 H. 8. gives the Ordinary Remedy for Procurations and Synodals which was conceived had been lost by making the Rectories Lay Fee 2 Cro. 518. in Parry and Banks's Case it is Resolved that when the Rectory is in the hands of a Lay Impropriator the Ordinary cannot dissolve the Vicaridge nor in such case cannot augment the Vicaridge 2 Roll. 339. The Form of Pleading was also Objected unto As First 'T is not positively alledged that the Chancel was out of Repair but that he was Libelled against which Libel did mention only it to be
cepisset seu cepissent Sacramentum Coenae Dominicae secundum ritus Ecclesiae Anglicanae quod quaelibet talis persona personae sic locata electa vel delecta vel locatae electae sive delectae similit ' caperet seu caperent praedict ' tria sacramenta subscriberent praed ' declaracon ' ad idem tempus quando Sacramentum ê“ debita ExecucÌ„one dictorum locor ' officior ' respective administraretur Et in defalt ' inde quaelibet tal ' locatio elecco delecco per eundem Actum inactitat ' declarat ' existit fore vacua Et per eundem Actum ulterius inactitat ' existit authoritate pÌ„d ' quod potestates concess dictis Commissionariis Virtute ejusdem Actus continuarent essent in vigore usque vicesimum quintum diem Marcij anno Domini Millesimo sexcentesimo sexagesimo tertio non longius prout per eundem Actum plenius apparet Et idem Johannes Clarke ulterius dic ' quod ipse est tempore praed ' elecconis ipsius Johannis fore Balliv ' praed ' Villae de Guldeford ' in Narracone praed ' superius fieri supponit ' fuit ê“testan ' Subditus dict' domini Regis dominae Reginae nunc dissentiens ab Ecclesia Anglicana quodque ipse idem Johannes Clarke ad aliquod tempus infr ' The Defendant hath not taken the Sacrament within a year before his Election unum annum ê“x ' ante tempus Eleccon ' ipsius Johannis fore Ballivum praed ' Villae de Guldeford ' praed ' per Narraconem praed ' superius fieri supponit ' non cepisser Sacramentum Coenae Dominicae secundum ritus Ecclesiae Anglicanae per quod vigore praed ' Statuti idem Johannes Clarke tempore Elecconis praed ' in Narracone praed ' superius fieri supponit ' So that he is become incapable of it fuit inhabil ' incapax fore eligend ' ad praed ' locum sive officium Ballivi Villae de Guldeford ' praed ' praed ' elecco ipsius Johannis fore Ballivum ejusdem Villae per Narraconem praed ' superius supponit ' vigore Actus praed ' fuit vacua Et hoc parat ' est verificare Unde pet ' Judicium si praedict ' Major ' probi homines de Guldeford ' praedict ' acconem suam praedict ' versus eum habere debeant c. The Plaintiff Demurrs Et praedicti Major probi homines Villae de Guldeford ' praed ' dicunt quod praedictum placitum ipsius Johannis superius in barram placitat ' materiaque in eodem content ' minus sufficien ' in lege existunt ad ipsos Major ' probos homines Villae de Guldeford ' pÌ„d ' ab accone sua praedicta versus praefat ' Johannem habend ' praecludend ' quodque ipsi ad placitum illud modo forma praedict ' placitat ' necesse non habent nec per legem terrae tenentur respondere Et hoc parat ' sunt verificare Unde pro defectu sufficien ' placiti ipsius Johannis iidem Major ' probi homines Villae Guldeford ' praed pet ' Judicium debitum suum praedictum unacum dampnis suis occone detenconis debiti ill ' sibi adjudicari c. The Defendant joyns in Demurrer Et praedict ' Johannes ex quo ipse sufficien ' materiam in lege ad pÌ„d ' Major ' ê“bos homines Villae de Guldeford ' praed ' ab accone sua praedict ' versus ipmÌ„ Johannem habend ' praecludend ' superius placitando allegavit quam ipse parat ' est verificare Quam quidem materiam praedict ' Major probi homines Villae de Guldeford ' praedict ' non dedic ' nec ad eam aliqualit ' respond ' set verificacon ' ill ' admittere omnino recusant pet ' Judicium Et quod praedict ' Major probi homines Villae de Guldeford ' pÌ„d ' ab accone sua praed ' versus ipsum Johannem habend ' praecludentur c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium indè reddant dies dat' est partibus praedict ' hic usque à die Sancti Michaelis in tres Septimanas de audiend ' inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Major probi homines de Guldeford ' versus Clarke IN an Action of Debt by the Mayor and probi homines of Gildford against Clarke they declared upon a Prescription to make By-Laws ê“ bono Regim ' GubernacÌ„one Vill ' pÌ„d ' and that there has been an ancient Officer called a Bayliff of the said Town elected for time whereof c. upon the Monday next after Michaelmass Day and they set forth a By Law made That if any Inhabitant of the said Town should be duly Elected to the said Office of Bayliff and should refuse to take it upon him he should forfeit and pay to the Corporation 20 l And that after the said Law made viz. upon the 30th of September anno primo Willielmi Mariae the Defen-being then an Inhabitant and Freeman of the said Town was Chosen a Bayliff according to ancient Vsage for the year following and had Notice thereof but he refused to take upon him the said Office unde actio accrevit Major ' prob ' homin ' for Twenty pounds c. The Defendant pleaded Actio non for that by the Statute made 13 Cat. 2. for Regulating of Corporations it was amongst other things Enacted That after the determination and expiration of the Commission for Regulating of Corporations in the said Act mentioned no person or persons should for ever after be Chosen into any of the Offices or Places before mentioned in the said Act who within One year next before such Election had not Received the Sacrament of the Lord's Supper according to the Usage of the Church of England and that every person Elected should take the Oaths and subscribe the Declaration in the said Act mentioned at the same time as the Oath for the due Execution of the Office he is Elected to shall be Administred and in default thereof every such Election to be void And the Defendant further said That he is and at the time of the said Election he was a Protestant Subject of the King and Queen and a Dissenter from the Church of England and that he had not Received the Sacrament within a year before the said Election by reason whereof he was not capable to be Elected to the said Office and the Election by reason of the said Act was void hoc parat ' est verificare c. To this Plea the Plaintiffs Demurred In the Argument of this Case Sir John Read's Case was Cited who several years since was made Sheriff of Hertfordshire who was then under an Excommunication and so could not Receive the Sacrament and
of the Crown so 11. and so it was held in the Case of the Earl of Essex in Queen Elizabeths Time and in the Lord Cobham's Case in the Reign of King James the First And the Chief Justice cited the Statute made 29 H. 6. cap. 1. upon the Rebellion of Jack Cade which Act sets forth that John Cade naming himself John Mortimer falsly and traiterously imagined the Death of the King and the destruction and subversion of this Realm in gathering together and levying of a great Number of the King's People and exciting them to Rise against the King c. against the Royal Crown and Dignity of the King was an Overt act of imagining the Death of the King and made and levied War falsly and trayterously against the King and his Highness c. So that it appears by that Act that it was the Iudgment of the Parliament That gathering Men together and exciting them to Rise against the King was an Overt Act of Imagining the Death of the King Vide Stamford's Pleas of the Crown fo 180. And according to this Opinion Judgment was given against Harding in the following Sessions and he was Executed thereupon NOta At an Adjourned Sessions held the 19th of May 2 Willielmi Mariae it appeared that one of the Kings Witnesses which was to be produced in an Indictment for Treason had been the day before Challenged to Fight by a Gentleman that it was said was a Member of the House of Commons he was by the Court bound in a Recognizance of 500 l to keep the Peace And because it appeared the Witness had accepted the Challenge he was bound in the like Sum. NOta Vpon an Appeal to the House of Lords Anno 2 Willielmi Mariae the sole Question was Whether upon the Statute of Distributions 22 23 Car. 2. the half Blood should have an equal share with the whole Blood of the Personal Estate And by the Advice of the two Chief Justices and some other of the Judges the Decree of the Lords was That the Half Blood should have an Equal share Samon versus Jones IN an Ejectment brought in the Court of Exchequer in the year of the Reign of the late King James the Second The Case upon a Special Verdict was to this effect William Lewis seised of a Reversion in Fee expectant upon an Estate for Life did by Deed Poll in Consideration of Natural love and affection which he had to his Wife and Robert Lewis his Son and Heir apparent begotten on the Body of his said Wife and to Ellen his Daughter give grant and confirm unto the said Robert Lewis the Son all those Lands c. the Reversion and Reversions Remainder and Remainders thereof To have and to hold to his Son and his Heirs to the Vses following viz. to the use of himself for Life and then mentioned several other Vses not necessary to be here mentioned as not material to the Point in question and then to the use of the Wife for Life and after to the use of Robert and the Heirs of his Body and for want of such Issue to the use of Ellen the Daughter and the Heirs of her Body c. William Lewis and his Wife died Robert the Son devised the Estate to the Lessor of the Plaintiff and died without Issue Ellen was in possession and claimed the Lands by this Deed in which thâ—re was a Warranty but no Execution of the said Deed further than the Sealing and Delivery was had either by Enrolment Attornment or otherwise So that the sole Question was Whether this Deed should operate as a Covenant to stand seised or be void And it was Adjudged to amount to a Covenant to stand seised in the Court of the Exchequer And upon a Writ of Error brought upon the Statute of Ed. 3. before the Commissioners of the Great Seal and others empowered by that Act to sit upon Writs of Error of Judgments given in the Court of Exchequer the said Judgment was Reversed by the Opinion of Holt Chief Justice of the Kings Bench and Pollexfen Chief Justice of the Common-Pleas And upon a Writ of Error before the Lords in Parliament brought upon the said last Judgment it was Argued for the Plaintiff in the VVrit of Error That this should enure as a Covenant to stand seised to the use of the Wife Son c. It appears by Bedell's Case in the 7 Co. and Foxe's Case in the 8 Co. that the words proper to a Conveyance are not necessary but ut res magis valeat a Conveyance may work as a Bargain and Sale tho' the words be not used so as a Covenant to stand seised tho' the word Covenant is not in the Deed and and Poplewell's Case were cited in 2 Roll. Abr. 786 787. A Feme in Consideration of a Marriage intended to be had between her and J. S. did give grant and confirm Lands to J.S. and his Heirs with a Clause of VVarranty in the Deed which was also Enrolled but no Livery was made It was Resolved to operate as a Covenant to stand seised Vide Osborn and Churchman's Case in the 2 Cro. 127. which seems contrary to that Case but the chiefest Case relied upon was that of Crossing and Scudamore Mod. Rep. 175. where a man by Indenture bargained sold enfeoffed and confirmed certain Lands to his Daughter and her Heirs and no Consideration of Natural Love or Money exprest This was Resolved 22 Car. 2. in B.R. to operate as a Covenant to stand seised and upon a Writ of Error in the Exchequer Chamber the Judgment was affirmed It was said on the other side for the Defendant That the Case at Bar differed from the Cases cited for here the Intention of the Deed is to transfer the Estate to the Son and that the Vses should arise out of such Estate so transferred In the Cases cited no Vses are limited upon the Estate purported or intended to be Conveyed but only an Intention appearing to convey an Estate to the Daughter in Crossing's Case and to the intended Husband in Poplewell's Case and seeing for want of due Execution in those Cases the Estate could not pass at Law it shall pass by raising of an Vse But the Case at Bar is much the same with the Case of Hore and Dix in Siderfin the 1st Part. 25. where one by Indenture between him and his Son of the one part and two Strangers of the other part in Consideration of Natural love did give grant and enfeoff the two Strangers to the use of himself for Life Remainder to the Son in Tail c. and no other Execution was three than the Sealing and Delivery of the Deed this was Resolved not to raise an Vse for the Vse was limited to rise out of the Seisin of the Strangers who took no Estate Vide Pitfield and Pierce's Case 15 Car. 1. Marche's Rep. 50. One gave granted and confirmed Lands to his Son after his Death this Deed had been
the Defendant wage his Law the Oath of the Eleven which are Sworn de credulitate may be dispensed with by the Plaintiffs assent Vid. Mag. Charta c. 28. Note It was Adjudged in the King's Bench 19 Car. II. That if a Prisoner escape by the permission of the Sheriff yet he may be taken by the party at whose Suit he was condemned for it may be the Sheriff is Insufficient and it is no reason that his own Act should damnifie the Plaintiff Vide Hob. 202. Termino Sancti Hillarij Anno 20 21 Car. II. In Banco Regis Barnes versus Bruddel ACtion for these Words alledged to be spoken of the Plaintiff viz. She was with Child by J. S. whereof she Miscarried and concludes That by reason thereof she was so brought into her Fathers displeasure that he turned her out of Doors and that she was brought within the Penalty of the Statute of 18 Eliz. And in Maintenance of this Action a Case was cited out of Roll's 1st Part 35. inter Meadows Boyneham an Action was brought for calling of one Whore Per quod consortium amisit Vicin ' suorum and held it would lye And in Anne Davie's Case 4 Co. 17. it is held That since the Statute of the 18 Eliz. cap. 3. to say One had a Bastard would bear an Action But notwithstanding the Opinion of the Court was That such an Action would not lye unless a special Damage had been alledged as to say She had lost her Marriage as in Anne Davies's Case and the Reason upon the Statute alledged in the Case was said by Twisden to be of my Lord Coke's putting in for Iustice Jones affirmed to him there was nothing said thereof in the Case Anonymus IF a Tradesman contract Debts and after gives over Trading he may be afterwards a Bankrupt within the Statute in respect of the Debts contracted before And so it was said to be Ruled in Sir Job Harvies Case Anonymus A Warren may pay Tythes by Custom So of Doves in a Dove-house or Fish in a River Note It was said by Twisden That if a Libel be in the Ecclesiastical Court for a thing whereof they have cognisance altho' the party intitles himself to it by Custom no Prohibition lies Anonymus A Prohibition was prayed for that they Cited him to answer Articles in the Ecclesiastical Court and did not deliver a Copy of the Articles and it was granted quousque they should deliver the Copy But the Prohibition which was taken out was absolute which the Court being informed of they did not think fit to grant a Consultation but to discharge that Prohibition by a Supersedeas Whereupon they proceeded and Excommunicated the party for default of Answering Who again moved the Court for a Prohibition and one was granted with a Mandamus in it to absolve him if it were for not Answering before they gave him a Copy of the Articles Bains Biggersdale ERror to Reverse a Judgment in an Action of Debt upon a Bond in Rippon Court because it was entred upon the Record Assid ' damna ultra misas custagia ad 10 l and doth not say Occasione detentionis debiti or Occasione praedicta and the Iudgment was Quod recuperet damna praedicta and doth not say Per Juratores assessa Yet notwithstanding the Judgment was affirmed Billingham Vavasor ERror to Reverse a Judgment in Debt in the Court of York Assigned First In the Variance between the Count and Plaint for the Plaint was Entred Ad hanc Curiam venit queritur de Placito deb ' super demand ' 14 l and the Count was for 12 l but it was Answered That the certainty of the Sum needed not to be expressed in the Plaint and so Surplusage But otherwise it is of a Variance between the Original and the Count for the Writ must comprehend the certainty of the Debt and 2 Cro. 311. was cited where Debt was brought in the Common Bench for 40 s and after the Return of the Pluries Capias the Entry was Quod Querens obtulit se in plito deb ' 40 l and assigned for Error and disallowed But to that it was said That that was but a Misprision in the Entry of a Continuance which had a former Record to warrant it And here tho' the certainty of the Sum need not to have been expressed Vid. 3 Cro. 619. yet when it is the Plaint must not vary from it Et adjornatur Bourne versus Mason al' IN an Assumpsit the Plaintiff declares That whereas one Parrie was indebted to the Plaintiff and Defendants in two several Sums of Mony and that a Stranger was indebted in another Sum to Parrie that there being a Communication between them the Defendants in Consideration that Parrie would permit them to sue in his Name the Stranger for the Sum due to him they promised they would pay the Sum which Parrie owed to the Plaintiff and alledged that Parrie permitted them to Sue and that they Recovered After Non assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff could not bring this Action for he was a Stranger to the Consideration But in maintenance thereof a Judgment was cited in 1658. between Sprat and Agar Vid. 3 Cro. 619. in the Kings-Bench where one promised to the Father in Consideration that he would give his Daughter in Marriage with his Son he would settle so much Land After the Marriage the Son brought the Action and it was Adjudged maintainable And another Case was cited of a Promise to a Physician That if he did such a Cure he would give such a Sum of Mony to himself and another to his Daughter and it was Resolved the Daughter might bring an Assumpsit Which Cases the Court Agreed For in the one Case the parties that brought the Assumpsit did the Meritorious act tho' the Promise was made to another and in the other Case the nearness of the relation gives the Daughter the benefit of the consideration performed by her Father but here the Plaintiff did nothing of trouble to himself or benefit to the Defendant but is a mere Stranger to the Consideration wherefore it was adjudged quod nihil capiat per billam Herbert versus Merit A Prohibition was prayed to the Ecclesiastical Court for that the Defendant Libelled against the Plaintiff there for calling of her Impudent Whore which was said to be only a word of Passion and the later Opinions have been that unless some Act of Fornication were expressed that Prohibitions should be granted But the Court denied it in this case it being an offence of a Spiritual Cognizance and Eaton and Ailoffes Case 1 Cro. 78. and Pewes Case 329 were cited The Sheriff may Sell Goods he takes in Execution by a Fieri facias at any Rates if the Defendant denies to pay the Money Nota No Action of Debt lies against the Sheriff when the Party escapes who is taken upon a
the Parson shall not take them from him for it shall be taken to have commenced since the Endowment Note If the Matter concerns the whole County it is to be Tryed in another County which is indifferent Hall versus Philips AN Information was brought for the forfeiture of a certain quantity of Brandy and sets forth the two Acts 13 14 Car. 2. c. 23 and 24. of Excise upon that and other Liquors and then the additional Act of 15 Car. cap. 11. wherein it is Enacted That no Foreign imported excisable Liquours shall be Landed c. before due Entry be first made thereof c. or before the Duty of Excise due and payable for the same be fully satisfied and paid and that every Warrant for the Landing or Delivery of any such Foreign Liquors shall be Signed by the Hand of the said Officer c. upon pain that all such Foreign Liquors as shall be landed c. contrary to the true intent and meaning thereof or without the presence of an Officer or Wayter for the Excise or the value thereof shall be forfeited and lost the one Moiety to the King the other to him which shall seize inform c. And avers that this Brandy was Landed the Duty not fully satisfied and paid and without the presence of an Officer or Wayter for the Excise but doth not aver that a due Entry was not first made thereof Whereupon it was moved after a Verdict for the Informer in Arrest of Judgment that if either the Duty were paid or Entry made or the Landing were in the presence of an Officer it satisfied the Act which is in the Disjunctive and or shall not be taken Conjunctive unless the words are of like nature as 1 Mar. cap. 3. Maliciously or Contemptuously disturb Preachers especially in a Penal Law Besides if the Act required these three things should be done then payment would not suffice without the presence of an Officer at the Landing the like words are taken Disjunctively in Renigers Case Pl. Com. But it was said on the other side That the word or must be taken here in the Conjunctive and that for the apparent inconvenience that would follow and that the Statute intended all thrée should be performed and that an Entry should not suffice without payment or agreement with the Officer which Tantamounts For otherwise this Act which was made to be further remedial to the King would rather disappoint this Revenue of Excise given by former Acts which did also require an Entry to be made but this Act adds the Penalty for Non-entry and this Entry is to be made for a check upon the Officer that he accounts right to the King 2 Cro. 322. Also it appoints Landing in the presence of the Officer that it may be observed whether more be Landed than is contained in the Warrant for Landing but never meant that Entry should suffice without payment for so if Party be a Foreigner or Insolvent the King loseth his Duty And the Court gave Iudgment for the Informer But said they would have staied until the next Term but that great mischief might be done in the interim if it should be known that such a doubt sticks here and they would not give any incouragement to the lessening of the Kings Revenue Anonymus IN an Indictment upon the Act for coming within five Miles of a Corporation It was moved that no Indictment lay upon it because the Act appoints a Penalty of 40 l to be recovered by Action of Debt Bill Plaint or Information Sed non allocatur For when a Statute makes an Offence the King may punish it by Indictment but an Information will not lye when a Statute doth barely prohibit a thing vid. 2 Cro. 643. 3 Cro. 544. Note It was resolved at Serjeants Inn That when a Penalty is to be divided viz. To the King the Poor and the Informer If the King along Sue so that there is no Informer yet the Poor shall have their part Adrian Lampereve and other Frenchmens Case A Motion was made by the Solicitor upon a Special Direction from the King in behalf of the said Lampereve and others Frenchmen to have a Certiorari to Bedford Gaol where they were committed for Robbery Keeling Chief Justice I lately attended his Majesty about this matter and I thought he had been satisfied with what I then said and now repeat viz. That if we should remove them now we should discharge his Majesties Justice for there is no Indictment found and none can be found but at Bedford and the Prosecutors and Witnesses are there but he might have it Tryed at the Bar if he pleased so the only way is to let them stay at Bedford till the Assizes and then if Prosecutors appear not or an Ignoramus be found they will be discharged by Proclamation and if the Indictment be found then the Judge may take a new Recognizance of the Prosecutors to appear and Prosecute here and you may have a Certiorari now to deliver there or you may have it there from my Brother Rainsford who goes that Circuit to remove all up hither Sollicitor I suppose this will satisfie Curia We must acquit our selves of the Kings Justice In Easter Term following they were brought up hither and being Arraigned upon the Indictment they pleaded Not guilty and some of them desired to be Bailed and the Court said they might but it must be done in the Court because the Bail must be bound Body for Body and they required 4 Men to be Bail each worth 300 l Body for Body and in no sum certain They were afterwards Tryed per medierat ' linguae and some of the Aliens were not Frenchmen and most of them dwelt in Middlesex Lady Baltinglass's Case THe Court denied a Tryal at the Barr because the Costs were not paid upon other Tryals which went against her in other Courts which the Court here would take notice of Articles were exhibited against a Register of an Ecclesiastical Court for Misdemeanours done by him in his Office He moved for a Prohibition but it would not be granted unless they examin him concerning the Articles upon his Oath Wright and Johnson Assmpsit To deliver a Gelding in as good plight as he borrowed him and Avers that he did not deliver him at all A Verdict was had for the Plaintiff yet Iudgment was given against him because the Breach was not laid as the Promise is Playters versus Sheering IN a Replevin removed by Recordari There was a Non-suit for want of a Declaration and thereupon the Defendant made a Suggestion and took out a Writ of Enquiry upon 17 Car. 2. cap. 7. The Plaintiff moved that this might be set aside because the Non-suit hapened through the sudden Sickness of the person emploied to Prosecute Curia This new Statute having taken away the Writ of Second Deliverance hath made the Plaintiff remediless unless we help him therefore we will endeavour it as far as we can Let
a Suit And to stay a caussess Suit can be no Consideration 1 Cro. 804. Yelv. 84.184 as the Case of Smith and Johns 2 Cro. 257. where one having married an Executrix after her decease promised J. S. that if he would forbear a Suit against him for a Legacy he would pay it It was held to be a void Promise being in no wise liable to be sued after the Death of his Wife And the Opinion of my Lord Coke 9 Rep. 94. in Bane's Case is That an Executor shall not be charged with such Promise unless he hath Assets But the Court Resolved for the Plaintiff For it is not material whether the Defendants had Assets or no at the time of the Promise for by the Promise they caused the Plaintiff to desist who peradventure at that time was prepared to prove Assets and relying upon such Promise might be much to his prejudice if he could not afterwards recover upon it But the Chief Justice said If it had appeard upon the Declaraton that there were no Assets the Plaintiff by shewing that would have destroyed his Action Vere versus Smith IN Debt upon an Obligation The Condition recited that the Defendant served the Plaintiff as a Brewer's Clerk and that if he performed such Covenants c. The Defendant pleads performavit omnia The Plaintiff Replies That one of the Covenants was to give the Plaintiff a true Account of all such Moneys as the Defendant should receive c. whensoever he should be thereunto requested and alledged that 30 l came to his hands and that he requested him to give an account of it which he refused to do The Defendant Rejoyns confessing the Receipt of the said Money but saith That before Request made by the Plaintiff he laid it up in the Plaintiffs Warehouse and that certain Malefactors to the Defendant unknown stole it away hoc paratus est verificare And to this the Plaintiff Demurs generally And Jones Argued That the matter contained in the Rejoynder was a Departure from the Bar for it doth not amount to an Account but rather an Excuse or Discharge of himself why he should not account Again He ought not to have averred his Plea but to have concluded to the Country For the Plaintiff in his Replication having alledged That he gave no Account and the Defendant in his Rejoynder setting forth That he did give an Account there is an Issue joyned wherefore it ought to have been concluded de hoc ponit se super Patriam But these Matters were Over-ruled For as to the first the Court held it no Departure but a Fortification of the Bar for shewing that he was Robbed is a giving an Account And as to the second the Conclusion is proper because the Defendant alledges New Matter and therefore ought to give the Plaintiff liberty to come in with a Surrejoynder and answer to it for he doth not only say that he gave an Account but sets forth the Special Matter how Wherefore the Court gave Judgment for the Defendant Note A Clerk of the Court must appear de die in diem to any Matters against him on the Crown side as well as on the Plea-side Reynell versus Heale AN Information was brought upon the New Statute against Conventicles for that the Defendant being a Justice of the Peace in Devonshire and Complaint being made to him by Reynell of a Conventicle he refused to go to the place to suppress it and sets forth three Omissions of that kind and that the Statute Enacts That a Justice of Peace for every such neglect of doing his Duty shall forfeit 100 l the one Moiety to the King the other to the Informer unde actio accrevit for 100 l to the King and himself The Defendant pleads non debet the said 100 l to the Informer nec aliquam inde parcellam de hoc ponit se super Patriam praedict ' Reynell similiter And upon this Issue Verdict was given for the Informer Jones moved in Arrest of Judgment That he conceived there were no words in the Act to oblige the Justice of the Peace upon such Information to go in person to the Place where such Meeting is and 't is not said here that he refused to grant a Warrant or the like But he did not much insist upon that but moved that the Issue was not well joyned for it is only between the Informer and the Defendant and so the Plea is quod non debet to the Informer and no mention of the King whereas the Action is qui tam and the Act gives the Moiety of the Penalty to the King The Court said nothing to the first matter but held clearly that the Issue was misjoyned and said that a Repleader ought to be awarded Polexfin and Ashford versus Crispin HIll 22 23 Car. 2. Rot. 225. The Plaintiff brought Trespass Quare pisces suos cepit in separali Piscaria Vpon Not Guilty pleaded and Verdict for the Plaintiffs it was moved in Arrest of Judgment that the Plaintiffs ought not to have called them Pisces suos unless they had been in a Trunk or Pond For there is no more property in Fishes in a Several Piscary than in a Free Piscary In an Action for taking of Conies in a Warren 5 Co. 34. b. F.N.B. 192 193. 2 Cro. 195. he shall not say Cuniculos suos and this is such a default as the Verdict shall not aid Sed non allocatur For the Chief Justice said it might be intended a Stew Pond which is a mans Several Piscary and after a Verdict the Court shall admit any Intendment to make the Case good And Twisden cited a Case which was in Trespass Quare Phasianos suos cepit and the Plaintiff had Judgment after Verdict for it shall be intended they were dead Pheasants And the Case of Child and Greenhill 3 Cro. 553. is the same with this But the Court held that it had been good upon a Demurrer by reason of the local Property And so is the Register Hoskins versus Robbins IN Replevin the Defendant avowed for Damage feasant The Plaintiff Replies and saith That the place Where is parcel of the Waste of such a Mannor within which Mannor there are Copyholds demisable time out of mind and that the Copy-holders have had time out of mind the sole Feeding of the said Waste and that J. S. being a Copyholder of the said Mannor Licensed him to put in his Cattel The Defendant traverses the Prescription and it was found for the Plaintiff Levins moved in Arrest of Judgment that Prescription to have the sole Feeding 1 Cro. 434. 2 Cro. 256. whereby the Lord shall be excluded from all the benefit of his Soyl is not allowable and the Lord cannot in this case ever make any profit of the Mines for he may not Dig. 'T is true a Prescription may be to have the sole Feeding from such a Day for there the Owner hath his time also
upon that Attainder was penned as amply as this of 12 Car. and the Case of Warner and Harding Latch 25. is very like this W. Shelley enfeoffed divers to the use of himself for Life and afterwards to divers others upon Condition that if a Ring were delivered by the said William Shelley declaring that he intended those uses should be void that then c. it was resolved that nothing was forfeited but during his Life Rainsford I shall speak nothing to the Fraud because that is a pure matter of Fact which is to be found by the Jury and cannot in any Case be presumed by the Court. I am of Opinion that the Judgment ought to be affirmed The power of altering the Trusts reserved by the first Proviso is inseparable from the person of Simon Maine for it is to be by his Will in Moor 193. the Lord Pagetts Case It is resolved that inseparable Powers are not forfeited upon like words as are in this Act and so the second Proviso limits to him a double Power First Of revoking the old Trusts Secondly Of limiting new But this is to be done by Writing under his Hand and Seal in the presence of two Witnesses so the performance of this also is personal The D. of Norfolks Case is the very same unless for that it is there under his proper Hand and Seal and here under his Hand and Seal which certainly is all one But admitting this Power were forfeited yet it is not found that ever it was executed after it come to the King which must be before any Estate could come to the King therefore in Englefields Case it was found that a Ring was tendred in the behalf of the Queen And whereas it was objected That he had jus disponendi and therefore might Forfeit as a Man shall a Term which he hath in right of his Wife as Dame Hale's Case in Plowden is resolved I answer That here he hath not jus disponendi but rather potestatem disponendi but that is qualified and to be executed by certain Circumstances which must be performed to give it effect Twisden As to the Fraud I cannot see how the Jury could have found this fraudulent Settlement made to prevent a Forfeiture enacted by Parliament 20 years after which surely could not be without the Spirit of Prophecy I am of the same Opinion as to the matter with my two Brothers That Simon Maine had only a Trust in him during his own Life and if he had brought a Bill in Equity he could have had the Estate executed no further and therefore can Forfeit no more by this Act and it is not always that a Man that hath power over Land hath a Trust as we may sée in Cranmers Case Dier 308 309. there were as large words in the Act of his Attainder as here Indeed the Argument in Englefields Case 7 Co. rules this for if a Trust had béen implied in the power of Revocation they néeded to have argued that it should have been forfeited as a Condition so the D. of Norfolks Case for tho' the word Use is in that Act and not Trust as in this yet it makes no difference for an Use was then the same with what a Trust is now and tho' the word Power had béen in this Act yet there should have béen no Forfeiture in this case because the Execution of it is so personal and individual Neither is there found that ever there was any Execution and at most the Forfeiture could only be of what was in Simon Maine neither can Smith Execute it by virtue of his Grant from the King for the Kings Patent conveys nothing by implication and shall never work to a double intent Hale Chief Justice of the same Opinion First Crooke is a good Lessor for the other Trustees disagréement makes the Estate wholly his Secondly For the Circumstances of Fraud they are not material to be considered Thirdly The Trust is wholly disposed of after the Death of Simon Main so that he had nothing but during his Life Fourthly Then what is operated by the Attainder Why the Trust during Life is forfeited Vid. the E. of Somerset's Case Hob. 214. 2 Cro. 512. But then this Trust must have béen executed by the Court of Revenue 'T is true the Act doth not only give the Trust but the Term it self to the King that is during the Life of Simon Maine so that by this Act so much of the Term is drawn out of the Trustees as served the Trust which S. M. had but leaves the residue of the Term to serve the other Trusts so that the possibility of the Term returns to the Trustees after the Death of S. M. and this appears by the body of the Act. Also this appears by the saving in the Act. The first saving which saves all the Conveyances made by the Feoffor before the 29 of Sept. 1659. indeed might not help because Conveyances made to the Wives Children or Heirs are therein excepted But there the other Proviso saves the Right Interest c. of all persons whatsoever doth in Law and Equity not derived form the offenders since 25 Mar. 1646. and therein the Interest of Wife or Children and all are saved now this Estate was created before viz. 1643. I come now to the Provisoes The first Proviso determins nothing till the time of Simon Maine's Death and consequently this can revest no more to M. than he had before For the Condition is in expectation till he have a Son living at the time of his Death why then by this there comes nothing to S.M. so much as in point of Execution during his Life By his Will he might have limitted new Uses but he made none and 't is personal No other Man can make his Will Why then all stands as it did and nothing is made void till the time of his Death and then all is immediately executed to the Son by force of the first Conveyance But if the Proviso had béen That if S.M. had a Son there all had revested in S. M. and might have béen forfeited The last Proviso doth not create a Trust to him for if he had not béen Attainted the Trust should not have gon to his Executors c. No it creates a personal power of fetching back the former and declaring new Trusts observing the circumstances upon the same reason that this Estate can be forfeited a bare Executor I mean without a Devise of the residue might forfeit his Estate this is a Power yea and 't is a manacled Power it is a kind of Trust that he may revoke The D. of Norfolks Case is the same with this So Harding and Warners Case which was adjudged in C. Banco tho' there there were two to two and it was confessed by the Kings Attorney in Scaccario and the Kings Attorney doth not use to confess Judgment in Cases of great moment without consultation with the Judges This power was not nor could be passed to the
if the Heirs satisfied the Office of their Title without pleading as where Conusans of Pleas have been once allowed it is sufficient in another Action to shew the former Roll where it was alallowed Note An Indictment for a Nusans in the High-way The Court will not quash this Indictment upon Motion unless certified that the Nusans is removed But they will Reverse it upon a Writ of Error if their be Error in it without any such Certificate Iles Case A Mandamus was prayed to the Churchwardens of the Parish of Kinsmere in Hampton to restore John Iles to the place of Sexton there and it was granted And so the Court said hath béen for a Parish Clark Churchwardens a Scavenger But it was denied to one who pretended to be Master of the Lord Mayors Waterhouse for that they said was not an Office but a Service Anonymus A Fine was levied of Lands in Blandford Forum Resolved That this should not pass Lands in a Hamlet of that Town there being Constables distinct in Blandford Forum from others that were in the Hamlet so that they were as two Vills But if a Fine be levied of Lands in a Parish it shall extend to all the Vills within the Parish The Lord Hawley's Case A Mandamus was granted to restore him to the Recordership of Bath The Corporation returned That they were Incorporated by Letters Patents of Queen Elizabeth which empowered them to chuse probum discretum hominem in legibus Angliae peritum to be their Recorder and to hold a Court twice every Week before the Mayor Alderman and Recorder or any two of them whereof the Mayor to be one That the 1st of August 15 of this King he was made Recorder by the Committee upon the Act of this King for regulating of Corporations and that he continued in the Office Secundum locationem illam until the 25 of December 21 of the King and that from the 1 of August 15 of the King to August 21 he absented himself by the space of five years without any reasonable Cause and that he is nullo modo peritus in lege and that at a Court August the 21 they summoned him to appear some days before and he not coming they amoved him from his Office the 30 day of the said August After this Return filed it was moved First That it was repugnant for they returned That the Lord Hawley continued in his Office until the 25 of December 21 of the King and after that they amoved him in August 21 of the King To which it was answered That in regard upon the whole return it appears that he was amoved though it be said he continued after that is not material but surplusage As where a Jury gives a general Verdict and yet discloses special matter disagreeing to it the Court judges according to the special matter or else they might mean that though he were turned out yet he did continue exercising it de facto And the Court were of Opinion that the contradiction in the Return was not material For Hale said If it shall be taken that he is yet in then there is no need of a Mandamus Again it was said That the matter of absence was not sufficiently returned for it appears by the Charter that the presence of the Recorder is not necessary to the holding of the Court for it is to be held before the Mayor Aldermen and Recorder or any two of them whereof the Mayor to be one then they have not returned that they held a Court in all that time neither have they returned that any mischief or inconvenience happned to them by his absence A Park-keeper shall not forfeit his Office for Non-attendance unless a Deer be killed or the like in his absence Also it is returned from the 1 of Aug. 15. Car. to the 1 of Aug. 21. he absented himself for five years and he might be out of Town five years in six years time and yet be there every Court day And for the other cause of removal that he was not peritus in lege It was said That the Corporation being Laymen could not return a thing whereof they were not Judges That the Return was too general nullo modus peritus but ought to have set forth some special Fact whereby it might appear to the Court. Also They could not remove him for a Cause which they could not examin he was put in by Commissioners authorised by Act of Parliament which it was said did capacitate implicitely him at least their Act supplied the Election of the Town which if it had been would have dispensed with his disability And the Case of Bernardiston Recorder of Colchester was much relied upon who in 1655 brought a Mandamus to be restored to his Office And it was returned That he was not learned in the Law and that one being indicted before him upon the Statute of 1 Jac. of having two Wives and convicted he denied him Clergy and also they returned That he absented himself for nine Months and notwithstanding by the Iudgment of the Court he was restored It was said by Sir William Jones on the other side That the absence as it was returned was sufficient Cause to remove him for it is returned That without any reasonable Cause seipsum elongavit by the space of five years which must be intended five years continued and not made up by Fractions and so held the Court in that Case and executionem officij sui totaliter neglexit Now tho' his Presence be not of absolute necessity to the holding of the Court yet it is highly convenient that he should be there seeing the Charter gives such large Iurisdictions to determine all Causes excepting such as concern Freehold according to Law The Court here also must judicially take notice That the Office of Recorder is concerned in other matters besides the Administration of Justice in the Court for he is as it were the Common Counsel of the Corporation And whereas it hath béen objected That it is not returned that they had held a Court during his absence or that any prejudice had ensued Also That it must be intended that there were Courts when they have returned the Charter which empower them to hold one twice every week and 't is returned That he absented himself in Regiminis Civitatis detrimentum c. and ' its apparent they must suffer prejudice by so long absence If a Park-keeper should desert his Office for five years it would make a Forfeiture without Special Damage The other matter returned also That he is nullo modo peritus in lege is good Cause for the Charter appoints them to Elect such an one so one that is not so qualified is not capable and the Act of this King authorises Commissioners but to do what the Corporation might have done It is apparent That the Office requires skill in the Law he hath no power to make a Deputy by the Statute of 21 Jac. Causes in many Cases are
might be given in Evidence tho' upon Non est factum it could not The King versus Alway and Dixon ERror to Reverse a Judgment upon an Indictment because the Award of the Venire was Entred Praeceptum fuit Vicecomiti c. which is more like an Hystory of the Record than the Record it self for it ought to be Praeceptum est and so are the Presidents And for this Cause it was Reversed Waldron versus Ruscarit Hill ult Rot. 225. In an Ejectment a Special Verdict was found That one levied a Fine of all his Lands in Saint Inderion in Cornwal and that he had Lands in Portgwyn and that the Constables of Saint Inderion exercised their Authority in Portgwyn and that Porgwyn had a Tythingman And whether this Fine conveyed the Lands in Portgwyn was left to the Iudgment of the Court and Resolved that it did A Parish may contain ten Vills and if a Fine be levied of the Lands in the Parish this carries whatsoever is in any of those Vills So where there are divers Vills if the Constablewick of the one goes over all the rest that is the Superiour or Mother Vill and the Land which is in the other shall pass per nomen of all the Lands in that And tho' it be found that Portgwyn had a Tythingman Decenarius which prima facie is the same with a Constable and differed little in the Execution of that Office concerning Keeping the Peace Yet Hale said He was not the same Officer and 't is found that the Constables of St. Inderion have a superintendency over Portgwyn and therefore 't is but as an Hamlet of St. Inderion But if found that they had distinct Constables and could not interfere in their Authority it would be otherwise Owen 60. Note It was said by the Court That if there be a Conviction of a Forcible Entry upon the View of the Justices of the Peace no Writ of Error lyes upon it but it may be Examined upon a Certiorari The King versus Green al' THey were Indicted for refusing to take the Oath of Allegigiance contained in the Statute of 3 Jac. tendred to them at the Sessions of the Peace One appeared and the Entry was Nihil decit c. ideo remansit Dom ' Rex versus eundem indenfensus And the other were Convicted and Judgment given quod forisfaciant omnia bona catalla terr' tenementa Domino Regi extra protectionem Dom ' Regis ponantur committuntur quilibet eorum committitur Gaolae They brought Error And First It was moved that the Indictment was for refusing the Oath contained in the Statute of 3 Jac. in his Anglicanis Verbis Viz. I do truly and sincerely acknowledge c. that our Sovereign Lord King Charles the Second is Rightful King of this Realm c. Whereas the Statute is King James and the words of the Statute are That the Justices of the Peace shall demand of such persons there mentioned to take the Oath hereafter following So that 't is tyed up to that Oath in terminis and then it cannot be Administred after the Death of King James And the diversity of the Penning of this Act of 3 Jac. and the Act of 7 Jac. was observed in the last the words are Shall take and receive an Oath according to the Tenour and Effect of the Oath contained in 3 Jac which is as much as to say the same Oath in substance So the Act of 1 Eliz. cap. 1. is That the Oath shall be taken according to the Tenour and Effect hereafter following Therefore it was Objected that the Indictment might have been upon the Act of 7 Jac. but not upon 3 Jac. which it was conceived was tyed up to the Person of King James and therefore determined by his Death As if a Lease be made durante bene placito Regis nunc it doth end by the Dimise of that King that made it Otherwise if it be durante bene placito Regis Moor pl. 311. And though these Statutes for the Oath of Allegiance be General Laws and need not have been recited yet when an Indictment is grounded upon an Act therein mentioned which will not maintain it it shall not be made good upon any other General Act. Secondly Another Matter insisted upon for Error was in the Entry of the Nihil dicit which was Ideo remansit Dom ' Rex versus eundem indefensus whereas it ought to have been remanet and so the Record it self must express But as it is 't is but an History of the Record and therefore upon Indictments where the Award of the Venire is Praeceptum fuit 't is not good but should he Praeceptum est Thirdly An Exception was taken to the Venire which Commands the Sheriff to Return 12 probos legales homines qui nec Dom ' Regem nec aliquam partem aliqua affinitate attingunt whereas in the King's Cases his Kindred may be Returned and therein no Challenge to the Favour neither ought the Sheriff to be restrained from Returning them Fourthly The Judgment is Committuntur quilibet eorum committitur which is an Execution of the Judgment that should have been given and not the Judgment it self which ought to have been Committantur c. as 't is extra protectionem Domini Regis ponantur and not ponuntur Fifthly It was alledged that the Statute was mis-recited in two places 1. For See of Rome it is written Sea of Rome so instead of sedes Romana it is mare Romanum which makes it to be no Sense 2. The Words of the Statute are I do declare in my Conscience before God whereas the Indictment is I do declare c. in Conscience and leaves out my It was also Objected That the words of the Act being That such as refuse the Oath shall incur the danger and penalty of Praemunire mentioned in the Statute of 16 R. 2. which Enacts That Process shall be made against the Offenders therein mentioned by Praemunire facias in manner as 't is Ordained in other Statutes And it appears that no such Process was made upon this Indictment wherefore the Statute is not observed Curia The first Error was disallowed by all the Court and held clearly that the Judgment was well grounded upon the Statute of 3 Jac. For the naming of the King is but an instance of the thing as it stands at present and it might as well be objected that the Oath in the Statute is I A.B. do swear c. And tho' some Statutes say according to the Tenour and Effect and this is the Oath hereafter following it was held to be all one for according to the Tenour and Effect and according to the words are all one as where a Certiorari is to certifie Tenorem Recordi The second was held to be Error and that the Iudgment given upon the nihil dicit must be reversed for there were several Iudgments given viz. One upon that and another given
Car. nunc cap. 3. in pursuance of which he distrained the said Nails for the Duty due by those Acts out of a Smiths Forge c. The Plaintiff demurred So the sole question was whether a Smiths Forge were within the Acts it being once argued the last Term the Court now gave their Opinion Moreton I think a Smiths Forge ought to pay 't is a great part of the Kings Revenue almost in every Village there is one we should explain the Act liberally for the King Rainsford of the same Opinion 't is within the words scilicet an Hearth whereon Fire is used and within the meaning for there is an exception of things not so properly Fire hearths as this viz. Private Ovens Where the Act excepts Blowing Houses I take it is meant Glass houses and the Houses at Ironworks by Stamps I think is meant Presses Calenders for Cloaths by the very words Houses that are not Dwelling Houses are charged The objection that it is his Trade is answered by the instance of Cooks Chandlers Common Ovens Hearths of Tripewomen who boil Neats Feet Twisden of the same Opinion the words are general yet I would not extend it to every Hearth that has a Fire upon it as Stils and Alembicks for so we might extend it to a Chaffing dish of Coals but we must take it for a Rule to extend it to those things which are most general A Smiths Forge is of such use that 't is found almost in every Village therefore 't was reckoned a great piece of hardship and slavery upon the Children of Israel that they were not permitted a thing so useful amongst them The exceptions enumerate particulars therefore it excludes whatever is not expressed Hale I would fain know how the fact is Do Silver Smiths c. pay It were too narrow to extend it only to Common Chimneys and too great a latitude to extend it to every place where Fire is where a Man can but warm his Hands I suppose Boylers in Cooks Chimneys and the Fireplaces of Worstead Combers do not pay Common Ovens should have paid tho' there were no exception of Private Ovens for they never are or can be without a Chimney This is matter of fact I have not enquired into and I would be loath to deliver an Opinion without much inquiry but 't is very probable that they are Firehearths and not excepted but it appears plainly upon the Record that 't is a Firehearth and by the general Demurrer 't is admitted Note There was a Special Rule that no advantage should be taken of the Pleading by either side But Hale said he did not know how they were bound by that Rule Termino Paschae Anno 24 Car. II. In Banco Regis Monk versus Morris and Clayton THe Plaintiff after he had obtained Iudgment in Debt became Bankrupt and the Defendants brought a Writ of Error The Judgment was affirmed in the Exchequer Chamber and the Record sent back Then a Commission of Bankrupts is sued out and the Commissioners Assign this Judgment The Plaintiff Sues out Execution and the Money is levied by the Sheriff and brought into Court The Assignee moves that it may not be delivered to the Plaintiff surmising that the Judgment was assigned to him ut Ante. The Court said they might have brought a Special Sicre facias which they having delayed and that it would be hard to stay the Money in Court upon a bare surmise and for ought appeared it was the Plaintiff's due But however because it might be hazardous to deliver it to him they consented to detain it so that the Assignee forthwith took out a Scire facias against the Defendant in order to try the Bankrupcy or otherwise that it should be delivered to the Plaintiff Sir Ralph Bovyes Case IN an Ejectment upon a Tryal at Bar the Case appeared to be this Sir William Drake was seized in Fee of the Lands in question and 19 Car. 1. infeoffed Sir William Spring and five others to such uses as he should declare by his Will in Writing or by his Deed subscribed by three Witnesses In August 20 Car. 1. by his Deed ut supra he limits the use of the said Lands to his Brother Francis Drake for 90 years and declares That the Feoffees should be seized to their own use in Trust for the said Francis Drake and his Heirs with a power to Francis Drake to alter and limit the Trust as he should think fit In the same Month there is a Treaty of Marriage between F.D. and the Daughter of Sir William Spring and it was agreed by certain Articles between F.D. and Sir W. S. c. reciting that he should receive 2500 l with his intended Wife which Money was proved to be paid that F. D. should convey the Lands in question to himself and his Wife and the Heirs Males of their two Bodies c. for the Joynture of the Wife The Marriage afterwards in 20 Car. takes effect and soon after the same year F.D. by Indenture between him Sir W.S. and another reciting the Articles of Marriage Assigns his Term of 90 years to Sir W. S. and the other in Trust to himself for Life the remainder to his Wife for Life and after to the Heirs Males of their two Bodies and by the same Deed limits the Trust of the Inheritance of the Lands in the same manner Afterwards in 23 Car. 1. he in consideration of 6000 l proved to be paid Grants out of the said Lands a Rent of 400 l per annum to Sir Ralph Bovy and his Heirs with power to enter into the Land in case the Rent was not paid and to retain it until satisfaction Afterwards F. D. and his Wife dye the Rent was Arrear Sir R. Bovy enters Sir Will. Spring and the other Trustees Assign the term of 90 years to Sir Will. Drake Heir Male of F.D. and his Wife the Lessor of the Plaintiff In this case these Points were agreed by the Court. First That when Sir W. D. enfeoffed divers to such Uses as he should declare by his Will or Writing that if he had in pursuance of that Feoffment limited the Uses by his Will that the Will had been but Declaratory tho' if he had made a Feoffment to the Use of his Will it had been otherwise according to Sir Ed. Cleeres Case 6 Co. And Hale said my Lord Co. made a Feoffment provided that he might dispose by his Will to the use of the Feoffee and his Heirs and resolved in that case he might declare the Use by his Will which should arise out of the Feoffment Secondly That this Settlement being in pursuance of Articles made precedent to the Marriage had not the least colour of fraud whereby a Purchaser might avoid it and if there had been but a Verbal Agreement for such a Settlement it would have served the turn And the Court said if there had been no precedent Agreement so that it had been a voluntary Conveyance tho' every such
But since H. 8. time it had béen for the most part administred by the Dean and Chapter and the Verdict was here for the Dean and Chapter King versus Melling IN an Ejectment upon a Special Verdict the case was this R. Melling seized in Fee having Issue four Sons William Robert Bernard and John devised the Land in question in this manner I give my Land to my Son Bernard for his natural Life and after his decease I give the same to the Issue of his Body lawfully begotten on a second Wife and for want of such Issue to John Melling and his Heirs for ever Provided that Bernard may make a Joynture of all the Premisses to such second Wife which she may enjoy during her Life R.M. dies Bernard in the life of his first Wife suffered a Recovery to the use of himself in Fee and after her decease Marries a second Wife and then by Indenture covenants to stand seized to the use of himself for Life and after to the use of his Wife for her Life for her Joynture and dies J.M. Enters and makes a Lease to the Plaintiff And this Term after Arguments at the Bar the Court gave their Opinions Rainsford for the Plaintiff First I hold in this Case that B. M. takes but an Estate for Life with a Contingent Remainder to the Issue by his second Wife for the Devise is by express words for Life as in Archers Case 1 Co. a Devise to R. A. for Life and after to the next Heir Male of R. and the Heirs Males of that Heir Male Resolved to create but an Estate for Life to R. A. I rely mainly upon Wilds Case 6 Co. which was brought before all the Judges of England where the Devise was to a Man and his Wife and after their decease to the Children and resolved to be but an Estate for Life 't is true there were Children at the time of the Devise but in the end of the Case 't is said that in such Case if there were no Children the Children born after might take by remainder and the first Estate to be but for Life Clerk v. Day 1 Cro. 313. the Devise was to Rose his Daughter for Life and that if she married after his Death and had Heir of her Body then that the Heir after his Daughter's Death should have the Land and to the Heirs of their Body begotten and if his Daughter died without Issue then to a Stranger It was held by Gawdy and Fenner that Rose had but an Estate for Life in this Case 1 Rolls 837. Devise to his eldest Son for Life and after his decease to the Sons of his Body lawfully begotten the Son resolved to have but an Estate for Life The Second point Whether the power to make a Joynture be destroyed by the Common Recovery these powers to make Estates are of two sorts either Collateral as when Executors have power by a Will to sell Land and such a power cannot be destroyed as appears in Diggs's Case 1 Co. or powers appendant to Estates as to make Leases which shall continue after the Estates to which the power is annexed determins and the power in the Case at Bar to make a Joynture are of this second sort and are destroyed by the alteration of the Estate to which it is annexed in privity as 1 Co. Albany's Case is so that the Common Recovery being a Forfeiture of the Estate for Life by consequence 't is an extinguishment of the power Thirdly But admitting the power continues whether it be well executed and I hold that it is not for being seized in Fee at the time of the Covenant to stand seized to the use of his Wife for her Joynture and this without any reference to his power the use shall arise out of his Interest and not be executed by vertue of his power according to the resolution in Sir Ed. Cleeres Case 6 Co. Twisden of the same Opinion As to the first Point it must be agreed that these words Issue of the Body ex vi termini make not an Entail if they were in a Conveyance by Act executed no more than Children as the words were in Wilds Case 'T is true in a VVill a Devise of Land to a Man and his Issue creates an Entail if the Devisee had no Issue at that time for otherwise those words would be void for in regard they are limited to take presently the Issue born after cannot take as by Remainder there being none to take in praesenti they must be intended to be words of Limitation as a Devise to a Man and his Heirs Males makes an Entail or otherwise the word Males must be rejected then seeing the words in themselves are not proper to make an Entail the next thing to be considered is the intention which is to be known by the expressions in the VVill and not any averment dehors the words are J will give my Land to my Son for Life and after his decease I will give the same to the Issue c. so that the Land is given to him expresly for Life Devise of Land in perpetuum makes Fee but if Land be given by Deèd in perpetuum there an Estate only for Life will pass 15 H. 7. A Devise to one paying 10 l this is a Fee 6 Co. Coliers Case But a Devise to one for Life paying 10 l makes but an Estate for Life the Case of Furse and VVinter was Mich. or Trin. 13 Regis Caroli Rot. 1339. A Devise to his two Daughters equally to be divided between them and to the Survivor of them and to the Heirs of the Body of the Survivor This was so expresly to the Surviror that it was resolved to be a Joynt Estate and not in Common The words here are after the decease of Bernard I give the same to the Issue of the Body c. implying that the Issue should take by Purchase as a Gift and not by Descent Again The power given to Bernard to make a Joynture shews that he could not do it by Virtue of his Estate and therefore needed a power to be annexed And tho' such powers are usually affixed to Estates Tail yet when the construction is doubtful what Estate shall pass the giving such a power is an argument that 't is such an Estate that cannot make a Joynture or the like by any other means The words go further and for want of such Issue then to J.M. 'T is true if Land be devised to a Man and if he dies without Issue then to remain over the Devisee shall have an Entail Owen 29. But it shall not be so in this Case because that Clause is crowded in with other Clauses directly to the contrary I rely mainly upon VVilds Case 6 Co. and the Case quoted out of Bendlowes in the end of that Case A Devise to Baron and Feme and to the Men Children of their Bodies begotten because it did not appear that there were any more Children at
Juratorum was returnable die Martis prox ' post mensem Paschae Nisi prius Richardus Rainsford Mil ' c. venerit die Lune in mensem Paschae instead of post mensem and so objected That there was no Authority to try the Cause there being no such day And the Court seemed to be of that Opinion and that there was no Record by which this could be amended but the Parties agreed to go to a new Tryal an so this Point did not come to be fully resolved Woodward versus Aston AN Indebitat ' Assumpsit was brought by the Plaintiff against the Defendant for 10l received of his Money Vpon Non Assumpsit pleaded and a Tryal at the Bar which the Court permitted because the Parties were Officers of the Court the Case appeared to be thus The Master of the King Bench Office or Chief Clerk had granted the Office of Clerk of the Papers and agreed on all hands that it was his to grant it to Woodward the Plaintiff and one Vidian and the longer liver of them Vidian being a Recusant and knowing himself disabled by the late Act of Parliament to continue in the Office Prays the Court that Aston might be admitted in his room which was done accordingly and within two or three years after Vidian died and Woodward commenced this Suit against Aston supposing that he had no right in the said Office The Plaintiff to Entitle himself shewed a Copy of the Enrolment in this Court of the Deed of Grant of the Office to him and Vidian And it was objected on the Defendants part that this was not Evidence but they ought to produce the Grant it self for tho' the Enrolment of a Bargain and Sale is Evidence because the Estate passes by the Enrolment without which the Deed would not be sufficient yet here the Deed passes the Office and the Enrolment is but as it were a Copy But the Court ruled that the Enrolment might be given in Evidence and of Grants of Offices in this Court it has been the course to Enrol Deeds Then the Deed it self was produced by the Defendant which was cancelled and urged by his Counsel that the Estate in the Office was thereby destroyed Curia contra Not as to the Plaintiff unless it appeared that he had a hand in the cancelling of it But then for the Plaintiff it was said that this was an entire Office tho' granted to two and one could not surrender or grant his Interest But then the Counsel for the Defendant shewed that when the Defendant was admitted into the Office the Court demanded of the Plaintiff whether he consented and he said salvo jure and seemed unwilling at first but afterwards the Chief Justice demanded of him whether he would execute it alone and told him he knew such things of him which would make appear it was not proper for him so to do and then he said he submitted and that afterwards Sir Robert Henly Chief Clerk made a new grant to the Plaintiff and Defendant of that Office which the Plaintiff knew of and yet joyned in the Execution with the Defendant which as was urged amounted to a surrender of his former Grant In 2 Cro. 197 258. it is said if an Officer for life accepts a new Grant 't is no Surrender of his former Estate The Court did not deny but that if it did appear that the Plaintiff had accepted this new Grant it would be a Surrender and that matter of fact was left to the Jury and they found for the Defendant The Court said in this case that a Rent or other Grant was not lost by the destruction of the Deed as a Bond or chose en Action was Quaere if the party himself Cancel it and if the Grantee of the Rent delivers up the Deed to the Grantor this is no Surrender but he may Sue for his Rent if he can recover the Deed again for a Chose en Grant must be Surrendred by Deed. Curtis al' versus Collingwood IN an Assumpsit the Plaintiffs declared That the Defendant was Excommunicated at their Prosecution for not paying of a Tax made for the Reparation of a Church of which they were Churchwardens and that in consideration that the Bishop would absolve the Defendant at the Defendants Special instance and request the Defendant promised to pay unto the Plaintiffs so much After Verdict it was moved in Arrest of Judgment that there was no consideration on the part of the Plaintiff yet the Plaintiff had Iudgment for it cannot be intended but that the Bishop absolved the Defendant at their instance and would not have done it but upon the account of the Promise of paying the Money to them Termino Sancti Michaelis Anno 28 Car. II. In Banco Regis Anonymus A Bill of Middlesex was issued out by an Attorney of this Court against the Countess of Huntington which was discharged by Supersedeas without pleading because it appeared by the Record that she was a Peere and the Attorney was committed for suing out of the Process The City of London against Goree AN Assumpsit for the Duty of Scavage and declared upon the Custom of London that every one which exposes Forreign goods to Sale which had been entred in the Custom-house shall pay so much for shewing of them After Verdict it was alledged in Arrest of Judgment that no Assumpsit lay for such a Duty for there ought to be a Contract express or implied to maintain an Assumpsit Again forasmuch as the Customs of the City are confirmed by Parliament this is a Duty by Record Sed non allocatur for there are multitudes of Presidents in such like Cases an Assumpsit lies upon a Bill of Exchange accepted an Assignee of Commissioners of Bankrupt may bring an Assumpsit and yet the Debt is assigned by Vertue of an Act of Parliament And the Court said in such case as this the Declaration might be upon an Indeb Assumpsit as it was in the Case at Bar. Molyn versus Cooke al' IN Trespass for Assault Battery and Imprisonment until the Plaintiff was forced to spend 20 l and deliver up a Bond of 100 l to be cancelled wherein one Lamplugh one of the Defendants stood bound to him Cooke pleads his Priviledge as Clerk to one of the Protonotarys of the Common Pleas. The Plaintiff replies that this Trespass c. was done by them joyntly and that he had taken out an Original against them all and that this Declaration against Cook was upon that Original and that he still prosecuted the rest viz. Lamplugh and Jeffries to which the Defendant demurred And Iudgment was given Twisden and Jones only present quod respondeat ouster for Cooke being joyned with others in the Action he shall have no priviledge As Powles Case Dier 377. he being Clerk of the Crown was sued with his Wife and not allowed his Priviledge because sued with his Wife Vid. Poph. Rep. 329. and Rolls Abr. 1 p. 493. Brown versus Wait. IN
Ejectment the Case upon a Special Verdict was to this effect Sir John Danvers being seized of the Lands c. in Tail with the Fee expectant Anno 1646 and in 1647 levied a Fine to the same uses as he was before seized save that a power was reserved to make Leases for any number of years and without reserving any Rent Sir John Danvers did after become Guilty of Treason in Murdring of King Charles the first in 1648 and died in 1655. In 13 Car. 2. cap. 15. the Statute commonly called the Statute of Pains and Penalties Enacts That sundry of the Offenders in that execrable Treason of which Sir J. D. was one should amongst other Penalties there inflicted forfeit all their Lands Tenements and Hereditaments Leases for years Chattels real and interest of what nature or quality soever See the Act of 14 of this King The Lands were by Patent granted to the Duke of York who let them to the Defendant And John Danvers Heir of Sir John Danvers entred and made the Lease to the Plaintiff It had been several times argued at the Bar and this Term Iudgment was given by the Court for the Defendant And Rainsford Chief Justice delivered the Opinion of the Court and the Reasons for himself Twisden Wild and Jones as followeth The question being Whether an Estate Tail were forfeited by the words of the Act of 13 Car. 2. It was observed that all Estates were Fee simple at the Common Law and forfeitable W. the 2. de donis was the first Statute that protected Estates Tail from Alienations and from all Forfeitures of all kinds and so continued until the 12 E. 4. Taltarums Case from which time common Recoveries have been held not to be restrained by the Statute de donis and by the way it must be considered that Perpetuities were never favoured Then came the Statute of 4. H. 7. of Fines which with the explanation of the 32 H. 8. have been always resolved to bar the Issues in Tail so as to Alienations Estates Tail were set free but were not forfeitable no not for Treason until the 26 H. 8. by which they became subjected to Forfeitures in case of Treason and so by 5 E. 6. But 't is true these Statutes extend only to Attainders and 33 H. 8. Vests the Lands c. in the Kings possession without Office Thus having considered the History and Progress of Estates Tail the reasons why such an Estate should be construed to be forfeited upon this Act of 13 Car. 2. are these First The Crime mentioned is of the same nature and with the same aggravations as in 12 Car. 2. by which the Offenders are attainted of Treason c. for they are called Perpetrators of that execrable Treason with many Expressions to the like effect which was looked upon as an offence of that hainous nature that the same Parliament Enacted An Anniversary Humiliation throughout the whole Kingdom to be perpetually observed upon the account of it as if not only they that acted it but the whole Kingdom and their Posterity like to another Original sin were involved in the Guilt of it Nati natorum qui nascuntur ab illis And therefore the Punishment shall not be mitigated in any other manner than is expresly provided by that Act. Secondly It is proved by the generally and comprehensions of the words which are made use of viz. Possessions Rights Hereditaments of what nature soever Interests which does as well signifie the Estate in the ting as that wherein the Estate is which can have no effect if not extended to Estates Tail We must observe also that at the making of this Act entailed Lands were not protected from Forfeitures and tho' 26 H. 8. extends only to Cases where the Offender is attainted yet 't is of good direction to the Judges in Cases of like nature and 't is plain that by this Act of 13 Car. 2. the Offenders were looked upon in pari gradu with these attainted for when the Proviso comes to save the Estates of Strangers c. in trust for whom the Offenders were seized It is said notwithstanding any of the Convictions or Attainders aforesaid Thirdly It is to be observed that the Act takes notice that divers of the Offenders included in this Act were dead now in regard most Lands are known to be entailed if the Act had not intended such Estates to be forfeited it would signifie nothing indeed if the Offenders had been alive it might have been somewhat satisfied with the Forfeiture during their Lives But as the case was it should be of no effect at all after making a great noise of Forfeitures and Confiscations the Act would have been but a Gun charged only with Powder or as in the Fable Parturiunt Montes c. Fourthly It is manifest that the Parliament did not intend that the Children or Heirs of the Persons within the Penalties of the Act should have any benefit of their Estates for in the saving which is made for Purchasers upon valuable Considerations the Wives Children and Heirs of the Offenders are excepted then surely if they would bar them of the benefit of their Purchases à fortiori from inheriting to an Estate Tail especially of a voluntary Entail that seems to be made with a prospect of this Treason which was perpetrated a year after and such an Entail as scarce the like was ever seen before that a power should be reserved to make Leases for any number of years and without Reservation of any Rent By which it is manifest that Sir John Danvers that committed the Treason was fully Master of the Estate Again all Conveyances are avoided by the Act unless such as were upon valuable Consideration which this Fine was not The great case which has been insisted upon by way of objection is Trudgeons Case Co. Litt. 130. Estates Tail were not forfeited upon the Statute of Praemunire but during the Offenders Life For answer to that it must be observed that that Forfeiture is upon the Statute of 16 R. 2. at which times Estates Tail were under thè protection of the Statute de donis but since that time the Judges have not been so strict in expounding Statutes concerning Estates Tail as appears by Adams and Lamberts Case 4 Co. That an Estate Tail given for a superstitious use was within the Statute of 1 E. 6. cap. 4. where the words are generally and not so large as in our case nor so much to demonstrate the intent as is in our Act to extend to Estates Tail wherefore Iudgment was given for the Defendant Note They that argued for the Defendant endeavoured to maintain that if it should be admitted that Entails were not forfeited by the Act yet the Estate of Sir John Danvers in those Lands would be forfeited in regard he levied a Fine in 1647 and the Act of 13 Car. 2. extends to all Lands c. whereof the Persons therein mentioned were seized c. since 1646 and he being
Tenant in Tail and levying of a Fine there is an Instantaneous Fee in him out of which the new Estate Tail is supposed to be created and that cannot hold bring derived out of a Fee subject to the Forfeiture by Relation but this Point was not touched by the Judges for that they were fully agreed upon the other Point Beasly's Case HE was taken in Execution taken a Recognizance of Bail and he made it appear to the Court that he never acknowledged the Recognizance but was personated by another and thereupon it was moved that the Bail might be vacated and he discharged as was done in Cottons Case 2 Cro. 256. But the Court said since 21 Jac. cap. 26. by which this Offence is made Felony without Clergy it is not convenient to vacate it until the Offender is convicted and so it was done 22 Car. 2. in Spicers Case Wherefore it was ordered that Beasly should bring the Money into Court an be let at large to prosecute the Offender Twisden said it must be tried in Middlesex tho' the Bayl was taken at a Judges Chamber in London because filed here and the Entry is venit coram Domingo Rege c. So it differs from a Recognizance acknowledged before my Lord Hobart upon 23 H. 8. at his Chamber and Recorded in Middlesex there Scire facias may be either in London or Middlesex Hob. rep If a false Bayl be acknowledged it is not Felony unless it be Filed and so held in Timberly's Case The King versus Humphrey's al. AN Indictment upon the Statute of Maintenance and one only found Guilty and it was moved in Arrest of Judgment that seeing but one was found Guilty it did not maintain the Indictment 2 Rolls 81. several were indicted for using of a Trade and said uterque eor ' usus fuit and held not good Sed non allocatur for that in that case in Rolls the using of the Trade by one cannot be an using by the other But this is an Offence that two may joyn in or it may be several as in a Trespass But then it was alledged that the Maintenance was in quodam placito in Cur ' coram Domino Rege pendent ' and not said where the Kings Bench Sate and this was held fatal Termino Sancti Hillarij Anno 28 29 Car. II. In Banco Regis Jay's Case A Mandamus to restore to his place of a Common Council Man in the Corporation of Eye in Suffolk The Return was that he was amoved for speaking of approbious words of one of the Aldermen viz. That he was a Knave and deserved to be posted for a Knave all over England And it was moved that the Return was insufficient for words are not good cause to remove a Man from his place in the Corporation To which it was said that this not a difranchising of him but only removing him from the Common Council as a person not fit to sit there To which Twisden said that his place there could no more be forfeited than his Freedom for he was chosen thereunto by the Custom of the place And Magna Charta is that a Man shall not be disseised de liberis consuetudinibus But he held that words might be a cause to turn out a Freeman as if they were that the Mayor or the like did burn the Charters of the Town or other words that related to the Duty of his place But in the Case at Bar the words do not appear to have any reference to the Corporation wherefore it was ordered that he should be restored The Court said that my Lord Hale held That Returns of this nature should be sworn tho' of late days it has not been used and that it was so done in Medlecot's Case in Cro. Abram versus Cunningham UPon a Special Verdict the Case appeared to be to this effect A. possessed of a Term makes B. Executor who makes three Executors and dies two of them dies and the Will of B. the Executor not being discovered Administration is granted cum Testamento annexo to D. who grants over the Term. The surviving Execcutor never intermeddles but so soon as he had Notice of the Will Refused before the Ordinary and the Point was Whether the grant of the Term in the mean time was good Saunders to maintain it Argued That to the making of an Executor besides the Will there was requisite that the Executor should assent and if the Executor refuses 't is as much as if there never had been any There is no Book which proves the Acts of an Administrator void where there is a Will and the Executor renounces Greysbrook and Foxe's Case in Plowden's Com. is that after Administration granted the Executor proved the Will And so in 7 E. 4. 14. in Dormer and Clerke's Case it was held that where there was an Executor who after refused and Administration committed the Administrator should have all the Rent belonging to the Term in Reversion which accrued after the death of the Testator If an Executor be a Debtor and refuses the Administrator may Sue him Which was denied by Twisden because a Personal Action once suspended is ever so Dyer 372. If one makes an Executor who dies and never proves the Will Administration shall be granted as upon a dying Intestate suppose an Executor de son tort had Judgment against him Shall not there be Execution upon a Term as Assets in his hands Twisden It hath been Doubted whether there could be an Executor de son tort of a Term or whether he were not a Disseisor And by the same Reason it may be granted in the present Case for at least the Administrator here is an Executor de son tort before the Refusal Levins contra Anciently Bona Intestati capi solebant in manus Regis as appears in Hensloe's Case in the 9 Co. And since the Power of the Ordinary hath been introduced it was only to grant Administration upon a dying Intestate 4 H. 7. Pl. 10. If the Ordinary cites the Executor to prove the Will and he Renounces 't is said he may grant Administration which implies that it cannot be before So 21 H. 8. cap. 5. is to grant Administration c. upon a dying Intestate or refusal of the Executor the Interest of the Executor commences before the Probat In 36 H. 6. 8. an Executor commanded one to take the Goods and after the Executor refused before the Ordinary who committed Administration and the Administrator Sued the person that took the Goods who Iustified by the Executor's Command and it was held good And a Relation shall never make an Act good which was void for defect of Power And the Court seemed strongly of that Opinion But Serjeant Pemberton desiring to Argue it the Court permitted him to speak to it the next Term. Et sic Adjornatur And afterwards it was Argued again and Judgment was given for the Defendant per totam Curiam Dunwell versus Bullocke IN an Action of
Trover inter al' de uno Instrumento ferreo Anglicè an Iron Range After Verdict for the Plaintiff it was moved in Arrest of Judgment that Instrumentum ferreum was too uncertain and that a Range was the same with a Grate for which Crates was a proper Latin word Sed non allocatur For Crates is such a Grate as is before a Prison But a Fire Range was not in use in the Romans time and therefore Instrumentum ferreum is well enough with the Anglicè Twisden said Trover de septem libris has been held good without saying what they were Blackman's Case IT was assigned for Error that the Venire was to Summon probos legales homines instead of liberos and so a material Variance and alledged that many Judgments had been Reversed for it But the Court here being informed that the Presidents were generally probos instead of liberos would not allow the Exception The King versus Armstrong Harrison al' c. THey and others were Indicted for Conspiring to Charge one with the Keeping of a Bastard Child and thereby also to bring him to Disgrace After Verdict for the King it was moved in Arrest of Judgment that the bare Conspiring without Executing of it by some Overt act was not subject to Indictment according to the Poulterers Case in the 9 Co. And it doth not appear that he was actually Charged with the Keeping of a Child nay 't is alledged 't was but a pretended Child neither was he by Warrant brought before a Justice of Peace upon such an account but only that they went and affirmed it to the party himself intending to obtain Money from him that it might be no further disclosed Sed non allocatur For there was as much Overt act as the nature and design of this Conspiracy did admit in regard there was no Child really but only a Contrivance to Defame the Person and Cheat him of his Money which was a Crime of a very heinous nature Then it was alledged That this was tryed at the Old-Baily commonly called Justice-Hall in London and the Jury came de Warda de Faringdon extra London which appeared to be out of the Iurisdiction Sed non allocatur For the Name of the Ward is Faringdon extra to distinguish it from Faringdon infra but both are known to be in London Whereupon Judgment was Entred up against them and Armstrong which appeared to be the principal Offender was Fined 50 l and the other 30 l Burrough's Case HE and others were Indicted for that they being Church-wardens Overseers of the Poor and a Constable did contemptuously and voluntarily neglect to Execute diversa Praecepta Watranta directed to them by the Bayliffs of Ipswich being Justices of the Peace under their Hands and Seals c. It was moved to quash it for that the nature and tenour of the Warrants were not expressed in the Indictment For unless the parties know particularly what they are charged with they cannot tell how to make their Defence And for that Reason it was quashed by the Court. Note The Court never gives Costs for not Executing of a Writ of Enquiry of Damages tho' Notice be given Anonymus AN Indictment of Forcible Entry into certain Lands in the possession of J.S. was quashed for not shewing what Estate J.S. had and tho' the word Disseisivit were in the Court held that tho' that might be taken to imply a Freehold yet it was not sufficient Vid. Mo. 481. And another was quashed because it was said possessed pro termino But the Court held that if it had been pro termino annorum tho' not said for how many years it had been well Note A Bayliff caught one by the Hand whom he had a Warrant to Arrest as he held it out of a Window And the Court said that this was such a Taking of him that the Bayliff might justifie the breaking open of the House to Carry him away Kent versus Harpool AN Ejectment The Case came hither by a Writ of Error out of the Kings-Bench in Ireland and divers Points were in it which concerned the Act for Settlement of Lands in Ireland But the Case was as to the great Point at Common Law to this effect Father Tenant for Life Remainder to the Son for Life Remainder to first Son of that Son who was not born Remainder to the Heirs of the Body of the Father the Father died before the first Son was born and Whether the Descent of the Entail to the Son did prevent the Contingent Remainder was the Question It was Argued that it did not because the Inheritance came to the Son by Act in Law And the Opinion in Cordal's Case in the 1 Cro. 315. was cited the great Reason in Chudley's Case and other Cases wherein Contingent Remainders have been held to be destroyed was for the preventing of Perpetuities which would have been let in if Contingent Remainders had been preserved whatever Act had been done by those which had the Actual Estate But there is no such necessity of making the life Construction upon Acts in Law If Lessee for years makes the Lessor Executor the Term is not drowned But if the Executor that hath a Lease purchases the Inheritance the Term is gone because it is his own act but in the other Case the Law shall not work that which must be construed a Devastavit In Lewis Bowles's Case in the 11 Co. and Co. Litt. where there is an Estate for Life Remainder to the first Son Remainder in Fee to the Tenant for Life the Estates at first close and open again upon the Birth of the first Son which should take the Remainder And so it may be here But the Court seemed to be of Opinion that the Contingent Remainder was destroyed by the Descent of the Estate Tail And Rainsford Chief Justice relyed upon Wood and Ingersol's Case in the 2 Cro. 260. where a Devise was to the first Son for Life Remainder to the Son which should survive and there three Judges against one held that the descent of the Fee upon the first Son prevented the Contingent Remainder to the Survivor Et Adjornatur Note In Lewis Bowle's Case the Estates were united at the first upon making of the Conveyance Smith versus Tracy IN a Prohibition the Case was One died Intestate and whether his Brother of the Half-blood should come in for Distribution upon the new Statute of 22 23 Car. 2. cap. 10. was the Question It was Argued that the Half blood should have no share for the Words are The next of Kindred to the Dead person in equal Degree which the Half-blood is not The Words likewise are Those which legally represent their Stocks and that must be intended in an Act of Parliament such as the Common Law makes to be Representatives and not the Civil Law For then it would be that the Bastard eigne should come in for Distribution For their Rule is that subsequens matrimonium facit
should be informed what their course is and has been and therefore let us hear the Civilians as to this point Post The King and Marlow THe Defendant being a Printer was indicted for his second Offence for Printing of a Seditious Book contrary to the Act of 14 Car. 2. cap. 33. and being found Guilty at the Sessions of the Old Baily the Iudgment was given That he should be for ever disabled to exercise the Art or Mistery of Printing and pay 20 l Fine and to stand in the Pillory And a Writ of Error was brought and Errors were assigned in the Judgment as varying from the words of the Act. For First The Act is That he should be disabled to exercise the Art and Mistery of Printing or Founding of Letters And the Judgment is only to disable him from Printing Secondly The Act is That he shall receive such further punishment by Fine Imprisonment or other Corporal Punishment And the Judgment is both for a Fine and Corporal Punishment when it ought not to be for both Curia The first is as it should be for Printing and Founding of Letters are two distinct Trades and the words are to be taken respectively to such Trade as the Defendant is of Again 't is a Rule that a Man shall not Assign an Error in that which is for his advantage But the second was held an Error for that the Act did not intend a Fine and Corporal Punishment both and therefore the Judgment was reversed Termino Sancti Michaelis Anno 29 Car. II. In Banco Regis Davis versus Price IN Error upon a Judgment in the Common Bench in an Action of Trover where Iudgment was given by default The Error was assigned in the Declaration which was de decem Juvencis Anglice Bullocks and Heifers and not said how many of one and of the other But it was answered that the Latin word being proper and of known signification the Anglice was void according to Osborns Case 10 Co. But the Court reversed the Judgment and cited the Case before in this Court Trover de viginti ovibus matricibus agnis And it was resolved to be naught for not ascertaining the number of each But Twisden said there was a Trover brought de Viginti averiis ivz. Bobus agnis c. and Viginti was applied to each Species and held well It was offered in this case to distinguish it from the case de Ovibus matricibus agnis that there the Latin was of two sorts Sed non allocatur for the words here being Equivocal it was all one Dutton versus Pool AN Assumpsit the Plaintiff declared That his Wives Father being seized of certain Lands now descended to the Defendant and about to cut a Thousand pounds worth of Timber off from the said Lands to raise a Portion for his said Daughter the Defendant promised to the Father in Consideration that he would forbear to fell the Timber that he would pay the said Daughter 1000 l After Verdict upon Non Assumpsit for the Plaintiff it was moved in Arrest of Judgment that the Father ought to have brought this Action and not the Husband and Wife and there was a case shewn to be adjudged in the Common Bench Hillary 23 and 24 Car. 2. Rot. 1538. between Pine and Norris where the Son promised the Father that in Consideration that he would Surrender a Copyhold to him that he would pay a certain Sum to his Sister for which she brought the Action and then held that it would lie for none but the Father for where the Party to whom the Promise is to be performed is not concerned in the meritorious cause of it he cannot bring the Action But if a Promise were to a Man that if his Daughter should Marry his Son he would give her 1000 l there because the Daughter does the Act which is the Consideration she may bring the Action On the contrary the Case was cited 1 Rolls 32. Starkey and Miln where in Consideration of certain Goods sold the Promise was to pay part of the Money to another there that other might bring the Action And it differs from the case where Money is delivered to A. to pay over to B. B. may bring Debt Yelv. 24. If the Father had in the Case at Bar cut the Trees And the Son had said Let me have the Trees and I will pay the Daughter so much that had been the same with the Case before cited 1 Roll. and it doth not seem to differ as it is 1 Cro. 163. Rookwook Case where the Father being about to charge the Land with a Rent of 4 l per Annum to his Younger Sons the Eldest promised that if he would forbear to charge the Land he would pay the 4 l per Annum and the Sons upon this brought the Assumpsit and recovered Sed vide librum that Promise is said expresly to be made to the Sons who were present Vid. 1 Cro. 619.652 Levett and Haws Case where the Promise was made to a Man in Consideration that he had agreed that his Son should Mary his Daughter and to settle such a Joynture upon her that he would give the Son 200 l with her and for this the Father brought the Action and held well brought tho' the Court seemed to incline that the Son might also have brought it And the Court here inclined for the Plaintiffs Sed Adjornatur Post Saunders versus Williams IN an Action upon the Case the Plaintiff Declared that he was seised in Fee of one Acre and possessed for a certain number of years in another Acre and had a Common in Black-acre for Beasts levant and couchant thereupon and that the Defendant put his Beasts in the place and disturbed him The Defendant pleaded a Title of Common to himself also there Vpon which Issue was joyned and found for the Plaintiff and it was now moved in Arrest of Judgment that the Plaintiff had made no Title to the Common by Prescription or otherwise Sed non allocatur The Defendant being a Wrong-doer And the same Matter was Adjudged in the Court between St. John and Moody St. Mich. 27 Car. 2. quod vide ante and in the 2 Cro. 43.122 3 Cro. 500. Robinson versus Woolly THe Case was this Term Argued again And Holt Argued That the Induction tho' executed by the Archdeacon after the New Bishop was Consecrated was sufficient The Bishop is only to Admit and Institute and to send a Mandate to the Archdeacon to Induct who is to do it de communi Jure and therefore if the Bishop hath Admitted and Instituted and made a Mandate for Induction 't is a sufficient Excuse for him in a Quare impedit 11 H. 4. 9. for the Bishop is meerly a Spiritual Officer A Prebendary is to be Inducted by the Dean and Chapter Pl. Com. 529. But 't is Objected That the Archdeacon does not Induct ex Officio â—ut a Mandate from the Bishop is requisite scilicet First The
Tail was executed by the first Conveyance And in the Case at Bar until the Release of B. the Fee was not executed in B. for the preservation of the Joynture and so the Plight and Condition of the Estate altered by matter subsequent and by consequence the Contingent Remainder destroyed The Court doubted whether there were such alteration of the Estate as to destroy the Remainder for they said to some purposes the Fee was executed before the Release Vid. 1 Inst 184. a. for if the Joynt-tenants had joyned in a Lease for years an Action of Wast would he against the Lessee Et Adjornatur Anonymus A Person who was committed to the Tower for Conspiring the death of the King was brought up by Habeas Corpus and prayed to have Bail taken unless an Indictment were found against her this Term according to the new Act of 31 Car. 2. for Habeas Corpus's The Court said that they which would have the benefit of that Act must pray it before the first week of the Term expires but in regard it appeared that she had prayed it before by her Counsel and her Habeas Corpus was taken out in time the Court said the benefit of the Act should be saved to her for the prayer is not necessary to be made in person But Mr. C. G. was refused the advantage he having omitted to make the prayer during the first week either in Person or by Counsel Sir Robert Peytons's Case HE was brought up by Habeas Corpus from the Tower his Counsel pressed much to have the Return Filed supposing that he would be then a Prisoner to the Court and committed to the Marshalsey but the Court ordered the Return to be Filed and notwithstanding remanded him to the Tower as they said they might do The King versus Plume ANte Hill 29 30 Car. 2. The Case was spoken to again upon the Demurrer to the Indictment for using of the Trade of a Fruiterer contra 5 Eliz. not having been bound an Apprentice Scroggs Chief Justice and Dolben inclined to the Opinion that it was a Mystery within the Statute there being great Art in chusing the times to gather and preserve their Fruit. And that the Cause deserved the more Consideration for that the Fruiterers were an ancient Corporation in London viz. From the time of E. 4. also a Barber Upholster and lately a Coachmaker Ruled to be within the Act. Jones and Pemberton seemed to be of another Opinion for it would be very inconvenient to make every one that sells Fruit by the penny within the Act and majus minus would make no odds surely since the 5 of Eliz. there would have been some Prosecution by the Company of Fruiterers in this case if it would have lain Brewers and Bakers require Skill and yet not within the Act. But the Court took time to deliver their positive Opinions Et Adjornatur Reve versus Cropley AN Indebitat ' Assumpsit was brought for 20 l as Executor to William Burroughs for so much of the said Williams Money had and received by the Defendant in his Life time whereupon the Plaintiff had Iudgment by Nihil Dicit and upon a Writ of Inquiry the Plaintiff not being provided to prove the Debt supposing it to be confessed by the Judgment the Jury found but two pence Damages Ventris moved to set aside this Writ of Enquiry for that the Plaintiff was not obliged in this Action to prove the Debt at the executing of the Writ of Enquiry no more than if he had brought an Action of Debt 2 Cro. 220. In Trespass for taking of Goods the Property is not to be proved upon the Writ of Enquiry after Iudgment Sur Nihil Dicit for said the Court if he should fail thereof it would be in destruction of the first Judgment Vid. Yelv. 152 Curia This being in an Action upon the Case which lies in Damages the Debt ought to have been proved and so let it stand Note If a Verdict be for 30 l and the Iudgment is quod recuperet damna praedicta ad 32 l This surplus will do no hurt because 't is damna praedicta Jones 171. Cooke versus Fountain IN an Ejectment upon a Trial at the Bar the Title of the Lessor of the Plaintiff was upon the Grant of a Rent with power to enter for Non payment The Executor of the Grantor was produced as a Witness for the Defendant And it was objected against him that in the Grant of the Rent the Grantor covenanted for himself and his Heirs to pay it and that the Executor being obliged was no competent Witness Against which it was much insisted upon on the other side that this Covenant annexed to a real Estate would not bind the Executor but only the Heir But the whole Court were against it The Counsel for the Defendant mentioned a Bill of Exceptions and the Court doubted whether it would lie in the Kings Bench so they waved it and shewed that the Executor had fully Administred the Inventory But they gave a further charge on the Plaintiffs side and so that Witness was set aside Termino Sanctae Trinitatis Anno 32 Car. II. In Banco Regis Anonymus IN an Action upon the Case The Plaintiff declared that he kept a Stage-Coach and got his Livelyhood by carrying of Passengers And that the Defendant spoke such Scandalous words of his Wife that so reflected upon him and rendred him so ridiculous that no body would Ride in his Coach and he thereby lost his Customers After Verdict for the Plaintiff it was moved to stay Iudgment that here was no cause of Action But on the other side a Case was cited of one Bodingly 14 Car. 2. C. B. where the Plaintiff declared That he was an Innkeeper and that the Defendant had presented his Wife at a Leet for a Scold and that such and such Guests in particular had absented from his House upon it and after Verdict he had Judgment But the Court here said that the Cases differed for that quality of the Wives might make the House troublesome to the Guests but a Stage Coachman could receive no probable prejudice in his Trade by defaming of his Wife or at the least the Plaintiff should have declared what Customers he had lost in particular and therefore they ordered quod querens Nils capiat per Biliam Anger versus Brewer IN an Attachment upon a Prohibition the Plaintiff declared That he proceeded in the Court Christian after the Prohibition delivered After Judgment by Nihil dicit and 100 l Damages given to the Plaintiff it was moved to stay Judgment that there was no place laid in the Declaration where the Defendant prosecuted since the Prohibition delivered and so if Issue had been taken upon Non prosecut ' fuit post deliberat ' brevis whence should the Venue have come But it being made appear to the Court that in all the Presidents of these kind of Declarations there is no place found mentioned
makes a Lease for the Life of the Lessee not warranted by the Statute and dies leaving B. in Remainder his Heir B. let ts for 99 years to commence after the death of the Tenant for Life reserving Rent and then the Tenant for Life surrenders to B. upon Condition and dies B. suffers a Recovery with single Voucher and dies the Lessee for years enters the Heir of B. distrains for the Rent and the Lessee brings a Replevin and upon an Avowry and Pleadings thereupon this Case was disclosed to the Court of Common Bench and Judgment given there for the Avowant and Error thereupon brought in this Court For the Plaintiff in the Error it was Argued That the Lease being derived out of a Reversion in Fee which was Created in A. upon the Discontinuance for Life and the New Fee vanishing by the Surrender of the Tenant for Life for it was urged he was in his Remitter altho' the taking of the Surrender was his own Act that the Lease for years by consequence was become void Again It was Objected against the Common Recovery that the Tenant in Tail and a Stranger which had nothing in the Estate were made Tenants to the Praecipe and therefore no good Recovery Again In case B. were not remitted after acceptance of the Surrender then he was Seised by force of the Tail and so no good Recovery being with single Voucher On the other side it was Argued to be no Remitter because the acceptance of the Surrender was his own Act and the Entry was taken away But admitting it were a Remitter because by the Surrender the Estate for Life which was the Discontinuance was gone and it was no more than a Discontinuance for Life For if Tenant in Tail letts for Life and after grants the Reversion in Fee if the Lessee for Life dies after the Death of the Tenant in Tail so that the Estate was not executed in the Grantee during the Life of the Tenant in Tail the Heir shall immediately Enter upon the Grantee of the Reversion Co. Litt. It seems also to be stronger against the Remitter in this case because 't is not Absolute but only Conditional However the Lease may be good by Estoppel for it appears to have been by Indenture and if the Lessor cannot avoid the Lease the Lessee shall without question be subject to the Rent But it was Objected against the Estoppel that here an Interest passes and the Lease was good for a time As if the Lessee for Ten years makes a Lease for Twenty years and afterwards purchaseth the Reversion it shall bind him for no more than Ten. To which Pemberton Chief Justice said The difference is where the party that makes the Estate has a legal Estate and where a Defeasible Estate only for in the latter a Lease may work by Estoppel tho' an Interest passed so long as the Estate out of which the Lease was derived remained undefeated As to the Recovery it was held clearly good altho' a Stranger that had nothing in the Land was made Tenant to the Praecipe with the Tenant in Tail for the Recompence in Value shall go to him that lost the Estate and being a Common Assurance 't is to be favourably Expounded Et Adjornatur Termino Sancti Hillarij Anno 33 34 Car. II. In Banco Regis Anonymus IN Error upon a Judgment in Ejectione Firmae in the Common Pleas where the Case was That the Bishop of London was seized injure Episcopatus of a Mannor of which the Lands in question were held and time out of mind were demised and demisable by Copy of Court Roll for Life in Possession and Reversion and J.S. being Copyholder for Life in Reversion after an Estate for Life in Ann Pitt and J.N. being seized of the Mannor by Disseisin J.S. at a Court holden for the Mannor in the name of J. N. surrendred into the Hands of the said J.N. the Disseisor Lord to the used of the said Lord. Afterwards the Bishop of London entred and avoided the Disseisin Ann Pitt died and an Ejectment was brought by J. S. And it was adjudged in the Common Bench that he had a good Title and now upon a Writ of Error in this Court the Matter in Law was insisted upon by Pollexfen for the Plaintiff in the Writ of Error That this Surrender to the Disseisor Lord to the Lords own use was good for all the Books agree a Copyholder may Surrender to a Disseisor of the Mannor to the use of a Stranger and why not to the Lords own use As if Lessee for years be ousted and he in Reversion disseised and the Lessee Releases to the Disseisor this extinguishes his Term. Here is a compleat Disseisin of the Mannor by Attornment of the Freeholders without which the Services cannot be gained and the Copyholders comeing to the Disseisors Court and by making Surrenders c. owning him for their Lords tantamounts Serjeant Maynard contra And he insisted that this Surrender was not good for the Disseisor had no Estate in this Land capable of a Surrender for the Copyholder for Life continuing in Possession and never having been ousted there could be no Disssesin of that And he endeavoured to distinguish it from a Surrender to a Disseisor Lord to the use of another for in such Surrenders the Lord is only an Instrument and does but as it were assent and until admittance the Estate is in the Surrenderer And he resembled it to the Attornment of a Tenant when è converso a Seigniory is granted and he put Cases upon Surrenders of Leases that they must be to one that hath the immediate Reversion as an under Lessee for part of the Term cannot Surrender to the first Lessor and he cited a Case of Lessee for years Remainder for Life Remainder in Fee to a Stranger he that had the Fee enfeoffed the Tenant for years by Deed and made Livery and the Conveyance held void for it could not work by Livery to the Tenant for years who was in Possession before and a Surrender it could not be because of the intermediate Estate for Life and it could not work as a Grant for want of Attornment He said it had been commonly received that a Common Recovery cannot be suffered where the Tail is expectant upon an Estate for Life not made Tenant to the Praecipe which he said was true in a Writ of Entry in the Post which are commonly used And the true reason is because such Writ supposes a Disseisin which cannot be when there is a Tenant for Life in Possession But as he said a Common Recovery in such case in a Writ of Right would be good Pemberton Chief Justice said his reason of Desseisin would overthrow Surrenders to the use of a Stranger for if the Possession of the Copyholder would preserve it from a Disseisin then was it pro tempore lopped off or severed from the Mannor and then no Surrender could be at all Et Adjornatur Berry
an Ancestor that is Medius Ancestor between the persons from whom and to whom will not impede the Discent The Grandfather and Grandmother both Aliens or Attaint of Treason have Issue the Father a Denizen who hath Issue the Son a Denizen the Son shall be Heir to the Father notwithstanding the Disability of the Grandfather For they are not Medii antecessores between the Father and the Son but Paramount and yet all the Blood the Father hath he derived from his disabled Parents And this Observation states in effect the Case For if the Discent between Brothers be an Immediate discent and that the Father be not Medius antecessor between them then the Disability in Robert will not impede the Discent of George his Brother or to John his Brother's Son But if it be a Mediate discent and the Father be a Medius antecessor between them then the Disability in Robert the Father may impeach the Discent The Second Term to be explained is that disabling Term of an Alien and to consider what Disability ariseth from it The Law that is the Rule of Discents in England is also the measure of this Nonability and is the only Rule that must determine how far it extends Therefore I consider what Disability the Law doth induce in case of an Alien It doth not hinder but that an Alien is of the same Degree and Relation of Consanguinity as in the like cases of a Denizen born The Son Father and Brother tho' Aliens are yet Son Father and Brother as Natural born Subjects and so taken notice of in our Law In Cro. Car. Carroon's Case he shall be preferred in Administration as next of Kin. Secondly What the Law doth do as to Disabilities of an Alien And this is of two kinds First the Disability that is Personal or Original to the Alien himself in reference to Inheritance Tho' he may take by Purchase by his own Contract that which he cannot retain against the King yet the Law will not enable him by Act of his own to transfer by Hereditary discent the Alien dying having since a Denizen born the Land will not descend Or to take by an Act in Law for the Law quae nihil frustra will not give an Inheritance or Freehold by Act in Law for he cannot keep it And therefore the Law will not give him 1. Discent 2. Courtesy 3. Dower 4. Guardianship And in respect of this Incapacity he doth resemble a person Attaint yet with this difference the Law looks upon a person Attaint as one that it takes notice of And therefore the eldest Son Attaint over-living his Father tho' he shall not take by Discent in respect of his Disability yet he shall hinder the Discent of the younger Son But if the Eldest Son be an Alien the Law takes no notice of him and therefore as he shall not take by Discent so he shall not impede the Discent to his younger Brother 32 E. 3. Cousenage 5. A consequential Consecutive Disability that reflects to an Alien from one that must derive by or through him tho' he perchance be a Natural born Subject As in our Case tho' Patrick the Son of Nicholas be a Natural born Subject yet because Nicholas his Father was an Alien there is a Consecutive Impediment derived upon Patrick whereby he is Consequentially disabled to Inherit John his Vncle and this Consecutive Disability is parallel to that which we call Corruption of Blood which is a Consequent of Attainder If the Father be Attainted the Blood of the Grandfather is not Corrupted no nor the Blood of his Son tho' he could not inherit him but only the Blood of the Father But that Corruption of Blood in the Father draws a Consequential Impediment upon the Son to inherit the Grandfather because the Fathers Corruption of Blood obstructs the transmission of the Hereditary discent between the Grandfather and the Son And here we must take notice of a great diversity between a Disability in the Blood and a Bar. Cro. Car. 16. Edwards and Rogers's Case William Rogers was seised of a Reversion in Fee Andrew his Vncle levies a Fine with Proclamations and dies having Issue John who dies leaving Issue William then William Rogers dies without Issue Ruled that William the Grandson of Andrew shall inherit notwithstanding the Fine of his Grandfather and the Reason is because William Rogers dying after Andrew the Estate never passed through Andrew and consequently William the Grandson claiming from William is in effect a Stranger to the Fine of Andrew and may aver that Partes c. But in that Case had Andrew been an Alien or Attaint then had William his Grandson been disabled to have inherited William by the Consecutive Disability Now in the Case at Bar there is first no doubt but that John the Earl and George were Brothers tho' they continued Aliens neither is there any question that they could not have inherited one the other had they continued Aliens neither is there any question whether that Personal Disability be removed by the Naturalization But the Question is Whether any Consequential or Consecutive Disabilities do result upon them from their Father Roberts being an Alien which may disable the one Brother to Inherit tho' there Personal disability be removed I come now to the Explication of the Third Term viz. the Restoring or Enabling Term Naturalization The Means of removing Disabilities of this kind are two A temporary partial and imperfect amotion thereof Letters Patents of Denization which tho' it puts the Person Denized as to some purposes in the Condition of a Subject and enables a Transmission Hereditary to his Children born after the Denization yet it doth not wholly remove the Disease or Nonability as to the point of Discents or Hereditary Transmission and resembles a Pardon in case of an Attainder And therefore in Lineal Discents if there be Grandfather a Natural born Subject Father Alien Son Natural the Father is made Denizen he shall not inherit the Grandfather and if the Father dies in the life of the Grandfather the Grandchild tho' born after the Denization doth not remove either the Personal or the Consequential Impediment or Incapacity of the Father In Collateral Discents the Father a Natural born Subject hath Issue two Sons Aliens who are both made Denizens and one dies without Issue the other shall not inherit him This was agreed in Godfrey and Dixon's Case hereafter cited The Second is more deep viz. Naturalization According to the Laws of Normandy they may Naturalize but such Naturalization shall not divest a Discent already vested Terrien lib. 2. cap. 12. But according to our Law it can only be by Parliament and not otherwise And this cures the Defect and makes them as if they had been Born in England and no man shall be received against an Act of Parliament to say the contrary and therefore if the Father an Alien hath Issue a Son born here and then the Father is Naturalized the Son shall
Demurrer to the Replication Joynder in Demurrer 241 7. Debt upon a By-Law made by a Corporation by Prescription 243 The Declaration sets forth That the Town of G. is Antiqua Villa a Corporation time out of mind Power to implead and be impleaded A Custom to make By-Laws for good Government of the Corporation and to impose Penalties Custom to elect a Bayliff annually 243 The By Law sets forth Forfeiture for the Breach The Defendant elected Bayliff for the year then next following who refused to execute the Office per quod Actio accrevit The Defendant pleads the Act of 13 Car. 2. 244 The Act set forth 245 And alledges that he is and at the time aforesaid was a Protestant Dissenter and had not received the Sacrament according to the Rites of the Church of England with a year before his Election and that the said Election by virtue of the said Act was void The Plaintiff demurs The Defendant joyns 246 8. Debt for Rent upon two several Demises by Lease Parol 249 The first Demise Exception Habendum Reddendum Entry Rent arrear Actio accrevit 250 The second Demise Exception Habendum Reddendum Rent arrear Actio accrevit 251 The Defendant pleads That the Plaintiff Nihil habuit in tenementis tempore dimissionis it should have been temporibus demissionis ibid. The Plaintiff replies That before the several Demises one J. S. demised to him for 41 years the said J. S. having then full Power Right and Title to make such Demise by virtue of which he entred and was possest and demised to the Defendant 252 The Defendan demurs The Plaintiff joyns in demurrer 253 Distress and Avowry Vide Replevin E Error 1. ERror in the Exchequer Chamber The Style of the Court 286 The Writ of Error 287 The Return of the Writ The Memorandum and Declaration in a special Action of the Case for not grinding at an Ancient Mill. Seisin of the Mannor and Mill. The Plaintiff Farmer of the Mill habuit habere debuit the Toll 288 The Defendant Occupier of an Ancient Messuage which ought to grind at his Mill. That the Defendant erected a Hand-Mill and ground therewith ratione cujus the Plaintiff lost his Toll The Defendant imparles and pleads Not guilty 289 Postea Tales Verdict for the Plaintiff The Judgment The Placita in the Exchequer Chamber 190 The General Errors assigned A Scire facias ad audiendum Errores prayed and awarded The Defendant in the Writ of Error appears and pleads in nullo est Erratum 291 2. The Placita in the Exchequer Chamber The Writ of Error 296 The Return of the Writ The Placita 297 The Memorandum and Declaration upon an Inland Bill of Exchange The Custom set forth That any Merchant or other person vel Ordini suo super visum acceptavit sic per Indorsamentum appunctuaret pro valore recept ' c. Upon Refusal to pay the Merchant or other person to become chargable 298 Avers That the Defendant being a Merchant at N. drew a Bill upon one J. S. in London payable to one P. or Order for Value received The Bill presented to J. S. and accepted by him P. orders payment to the Plaintiff J. S. had Notice and the Money demanded of him but refused payment of which the Defendant had Notice 299 And became chargable and thereupon promised payment but tho' after requested non solvit 300 The Defendant Protestando that there is no such Custom for Plea says That one C. an Excise-man paid the Defendant the Money in question being the Kings Money to the intent that it should be paid to the King and the Defendant at C's request drew the Bill That C. was then indebted to the King prout per Record ' Scaccarij 301 That an Extent issued out thereupon ad inquirendum The Writ delivered to the Sheriffs of London An Inquisition taken by them 302 The Money and Bill of Exchange seised and returned into the Exchequer The King became Entituled An Extent issued out to the Sheriff of N. for the levying the Money and the Money paid thereupon Averment of una eadem persona 304 Et una eadem Billa Et una eadem Summa The Plaintiff demurs to the Plea especially Causes of demurrer The Defendant joyns in demurrer 304 Eleven Continuances 304 305 306 The Loquela and Proceedings revived by Act of Parliament 1 W. M. Judgment for the Plaintiff upon the demurrer A Writ of Enquiry awarded 306 The Inquisition return'd Damages found Judgment for the Plaintiff 307 Mill and Toll Vid. Error 1. Outlawry pleaded Vid. Action on the Case 8. Prerogative Process Vid. Action on the Case 3. Error 2. Trover 2. Quantum meruit Vid. Action on the Case 8. R Rent Vid. Debt 3. 8. Replevin 1. THe Plaintiff Declares for taking and detaining 8 Cows c. The Defendant acknowledges the taking as Bayliff to the Dean and Chapter of Canterbury 131 Sets forth that they are Lords of the Mannor of M. That J. S. was seized of the Locus in quo parcel of the said Mannor and held it of the Dean and Chapter by Fealty Rent and Suit of Court Sets forth a Custom for the Lord to have a year and an halfs Rent upon every Alienation and power to distrain for it Shews the Alienation and the Purchasers Entry and that there was so much due for a Fine by Custom and because the same was unpaid the Defendant distrained infra feodum c. 132 133 The Plaintiff demurs to the Conizance The Defendant joyns in demurrer 134 2. Against two Defendants One of which avows the other acknowledges the taking as Baily to the former 145 They set forth that long before the taking R.L. and L.L. were seized in Fee of the Locus in quo and by Deed granted an Annuity to the Ancestor of the Avowant and his Heirs issuing out of certain Lands of which the Locus in quo was parcel with power of Distress Conditionally to be void upon payment of 100 l on a certain day then to come which was not paid c. 146 147 And for six years Rent Arrear the Distress was made which the one Defendant bene advocat and the other bene cognoscit as in the Lands charged with the Distress The Plaintiff demurs to the Avowry and Conizance The Defendants joyn 148 3. The Plaintiff declares for taking his Colt c. 210 The Defendant avows for Damage fesant and sets forth that E. M. being seized in Fee demised the Locus in quo to the Avowant to hold at Will That he entred and was possest and took the Cold Damage fesant prays Judgment and a Return and Costs and Damages according to the Statute The Plaintiff pleads in Bar to the Avowry That E. M. demised the Locus in quo to him before the pretended Demise to the Defendant to hold for 6 years That he entred and was possest and that the Defendant took his Colt there absque hoc that E. M. demised to
Since many inconveniences have faln c. by reason of Marriages within the Degrees of Marriages prohibited by Gods Laws that is to say the Son to marry the Mother or the Stepmother carnally known by his Father the Brother the Sister the Father his Sons Daughter or his Daughters Daughter or the Son to marry the Daughter of his Father procreate and born by his Stepmother or the Son to marry his Aunt being his Fathers or Mothers Sister or to marry his Uncles Wife carnally known by his Uncle or the Father to marry the Sons Wife carnally known by his Son or the Brother to marry the Brothers Wife carnally known by his Brother or any Man married and carnally knowing his Wife to marry his Wives Daughter or his Wives Sons Daughter or his Wives Daughters Daughter or his Wives Sister So these Marriages are declared to be plainly prohibited and detested by the Laws of God and not to be dispensable with by any man and therefore 't is enacted that no person shall thenceforth marry within these Degrees what pretence soever shall be made to the contrary thereof And in case any person have married within these Degrees and by any the Archbishops or Ministers of the Church of England be separate from the Bond of such Vnlawful Marriage that every such separation shall be good c. And in case there be any person thus married and be not yet separate that every such person shall be separate by the definitive Sentence and Iudgment of the Archbishops Bishops and other Ministers of the Church of England c. and by no other Power or Authority and that all Sentences and Iudgments given and to be given by any Archbishop Bishop or other Minister of the Church of England c. shall be definitively firm good and effectual to all intents and observed and obeyed without suing any Provocations Appeals Prohibitions or other Process from or to the Court of Rome to the Derogation thereof or contrary to the 24 H. 6. c. 12. 'T is very observable and perhaps it has not been observed before that the words of the Statute do not run so as commonly it seems for if the words had been by reason of marrying within or against the Prohibition of Marriage by Gods Laws there had been little question that there had been any other marriage against Gods Law in the intention of this Parliament but those reckoned up but the words are marrying within the Degrees of Marriage prohibited c. Every man apprehends that for the Son to marry the Mother is forbidden and that for the Father to marry the Daughter is within the same Degree tho' not expressed so for a Grandson to marry his Grandmother is within the same Degree of what is there forbidden So whereas the Text Leviticus 18. v. 14. forbids a man to marry his Fathers Brothers Wife for so the Text is tho' the Statute expresses it his Uncles Wife to marry the Mothers Brothers Wife is within the same Degree tho' not mentioned in Leviticus c. The Iudges did observe this only but did give no Opinion concerning Marriages within the Degrees viz. which are within the Degrees paritate rationis only and are not expressed such as Parsons and Manns and Remingtons Case in all which the Case was a man married his first Wives Neice which by Equity and Parity of Reason was perhaps within the Prohibition ver 12 13. that a man should not marry his Aunt or rather the Prohibition ver 14. that a man should not marry his Fathers Brothers Wife c. but only in one particular viz. that in the ascending and descending Parental-Line the Marriages are prohibited in infinitum but for the rest which are in pari gradu to the Degrees there mentioned they have not given any resolution at this time Now as to this Case in the second Statute there is observed this difference that the words carnally known are added where the Prohibition is in respect of a former Marriage of one of the Parties as the Son to marry the Stepmother carnally known by his Father or to marry his Uncles Wife carnally known by his Uncle c. this indeed is not particularly expressed and applied to every individual Prohibition to which 't is applicable in the first Statute but methinks 't is intended and as fully provided for tho' in general in the last Clause of the said first Statute which is this provided always That the Article in this Act contained concerning Prohibition of Marriages within the Degree aforementioned in this Act shall always be taken interpreted and expounded of such Marriages i. e. I suppose former Marriages where Marriages was solemnized and carnal knowledge was had In neither of these two Acts is there any Power given to the Temporal Courts to make any alteration as to the Canon Law or God's Law but it was referred to the Canon Law and the power of Dispensing de facto left in the same state as before And Dispensations were granted in these very particulars which the Statute says ought not to be done The Third Law which concerns this Case is the 28 H. 8. cap. 16. against Dispensations c. from Rome by which all Marriages which stood upon these Dispensations became absolutely unlawful for the Dispensations are made thereby clearly void c. and therefore there is a provisional Clause in it That yet notwithstanding at the most humble Petitions of the Lords and Commons c. all Marriages had and solemnized before the 30th of November Anno 26 of the Kings Reign c. whereof there is no Divorce or Separation had by the Ecclesiastical Laws of this Realm and which Marriages be not prohibited by God's Laws limitted and declared in the Act made in this present Parliament for the establishing the King's Succession viz. 28 H. 8. cap. 7. aforementioned or otherwise by Holy Scripture shall be c. good c. and reputed taken and adjudged c. as good c. if no impediment of Matrimony had ever been between them that have contracted and solemnized such Marriages If the Act had gone no further than these words For the Establishment of the King's Succession it had clearly brought the Cognizance of these Marriages to the Temporal Courts But 't is Objected That this Law made no such alteration because of the words which are added Or otherwise by Holy Scripture for this 't is said makes it directly of the Cognizance of the Ecclesiastical Courts so that it leaves it to them who know what is lawful or unlawful by Holy Scripture I shall forbear to Answer this until I come to the other Act where indeed the very same Exception is for the words Gods Law except in that is tantamount to these words and then I will answer both The Fourth and last Law is 32 H. 8. cap. 38. on which the Question is This is Cardo Questionis the mischief before the Statute was that the Bishop of Rome had entangled and troubled the
out of Repair Secondly The whole is Sequestred whereas it ought to have been but in proportion to the Charge of Repairing and should be certainly expressed what it required Thirdly The Sequestration is to remain by the Sentence until the Judge should take further Order Whereas it ought to have been but until the Repairs had been done These Exceptions the Court held fatal and therefore gave no Opinion as to the Matter in Law but did incline that there could be no Sequestration for being made Lay Fee the Impropriation was out of their Jurisdiction and it was now only against the Person as against a Layman for not Repairing the Church And they said in case of Dilapidations the whole ought not to be Sequestred but to leave a proportion to the Parson for his Livelyhood Anonymus IN an Ejectment upon a Special Verdict the sole Point was Whether a Lease for a year upon no other Consideration than reserving a Pepper Corn if it be demanded shall work as a Bargain and Sale and so to make the Lessee capable of a Release And it was Resolved that it should and that the Reservation made a sufficient Consideration to raise an Use as by Bargain and Sale Vid. 10 Co. in Sutton's Hospitals Case Rozer versus Rozer AN Indebitatus Assumpsit pro parcell ' Corii ad specialem instantiam requisitionem of the Defendant sold and delivered to J.S. Et sic inde Indebitat ' existens the Defendant promised to pay Vpon Non assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that there is no Promise laid and no Reason to presume a Promise when 't is the very ground of the Action tho' after a Verdict And admitting there were a Promise yet it being Collateral it did not make a Debt but should have been brought as an Action upon the Case Mo. 702. and Dyer 230. And hereupon Judgment was stayed Tho' as I hear in the King Bench about two years since between Danbey and Kent they held such a Case well enough after a Verdict Quaere Termino Sanctae Trinitatis Anno 33 Car. II. In Communi Banco Page versus Kirke IN an Action of Trespass upon Not Guilty at the Assizes in Suffolk a Verdict was found for the Plaintiff and 10 s Damages and 40 s Costs and Judgment entred accordingly And an Action of Debt was brought upon the Judgment and the Defendant pleaded Specially the Statute 22 23 of Car. II. ca. 9. against Recovering more Costs than Damages where the Damages are under 40 s in Trespass unless certified by the Judge that the Title was chiefly in question the Words of the Statute being If any more Costs in such Action shall be awarded the Judgment shall be void To which the Plaintiff Demurred and the Plea was held Insufficient because the Verdict was for 40 s Costs and not Costs increased by an Award of the Court. 2. If the Judgment were Erroneous yet it was hard to make it avoidable by Plea notwithstanding that the Words of the Statute are Shall be void Termino Sanctae Michaelis Anno 33 Car. II. In Communi Banco Onslowes Case HE brought an Action against a Bayliff being the chief Magistrate of a Corporation for that although he were chosen one of the Burgesses to serve in Parliament for the Corporation by the greater Number c. yet the Bayliff to disappoint him of sitting and to bring trouble c. upon him did return another Person in the Indentures together with him to his Damage c. Vpon Not Guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Action would not lie And of that Opinion were the whole Court viz. North Chief Iustice Wyndham Charlton and Levins for they said they had no Iurisdiction of this Matter the principal part thereof being a Retorn in Parliament No Action before the Statute H. 6. c. did lie against a Sheriff or chief Officer of a Corporation for a False-retorn and the Courts at Westminster must not enlarge their Iurisdiction in these matters further than those Acts give them That there were no Presidents of any Actions at the Common Law save Nevils Case in the late times and Sir Samuel Bernardistons Case both which miscarried In the Long Parliament there were a great many double Retorns but no Actions had been brought which is a great Argument that no such Action lies as Littleton argues upon the Statute of Merton of disparaging an Heir Termino Paschae Anno 35 Car. II. In Communi Banco The Lord Conwallis's Case THE Case was Isaac Pennington a Copyholder of the Mannor whereof my Lord Conwallis is now feised committed Treason in the matter of the Murder of King Charles the First and then about Anno 1655. surrendred into the hands of the Lord of the Mannor his Copyhold Lands to the use of some of his Children who were admitted In 1659. the Mannor was aliened to the Lord Conwallis then came the Act of Attainder 12 Car. 2. whereby Tychburn with other Regicides were attainted and thereby it was Enacted That all their Mannors Messuages Lands Tenements Rents Reversions Remainders Possessions Rights Conditions Interests Offices Annuities and all other Hereditaments Leases for Years Chattels Real and other things of that nature whatsoever they be shall stand forfeited to the King c. Provided that no Conveyance Assurance Grant Bargain Sale Charge Lease Assignment of Lease Grants and Surrenders by Copy of Court Roll c. made to any Person or Persons other than the Wife or Wives Child or Children Heir or Heirs of such Person or Persons c. After which Attainder c. the Lord of the Mannor caused the Lands to be seised and brought an Ejectment The First Point Was whether in Case of Treason or Felony the Lord can seise before Conviction or Attainder And the Court seemed to be of Opinion that no Seisure could be till Attainder without Special Custom but they agreed the presentment of the Homage was not necessary to precede a Seisure or to entitle the Lord to take the advantage of a Forfeiture but in case of a Capital Crime it would be unreasonable and inconvenient to permit the same to be tried or controverted in a Civil Action before the Conviction appeared upon Record Secondly Whether this were such a Forfeiture as the Lord was bound to take notice thereof for if no notice then the acceptance of the Surrender c. would not preclude him from taking advantage of the Forfeiture And the Court inclined that the Lord should be presumed to take notice in this Case as he shall in the Case of Failer of Suit of Court Non-paiment of Rent c. Vide 2 Cro. Matthews and Whetton 233. Thirdly Whether the Mannor being conveyed away before the Attainder shall purge the Forfeiture Iustice Levins said That although no advantage of this Forfeiture can be taken till Attainder yet after Attainder it has relation and
Record to come too late and for that Cause it was disallowed by the Court. Note This Plea was recited by Serjeant Trenchard in French and then a Challenge was offered to the Array for that it was Returned by J. S. as Sheriff of Buckinghamshire who was made Sheriff in Michaelmass Term 1687. and had continued in the Office for more than three Months and not taken the Oaths and subscribed the Declaration required by the Act of 25 Car. 2. made for preventing of dangers by Popish Recusants and so his Office by that Act was void to all intents and purposes before he made this Return of the Jury But this Challenge was disallowed by the Court for he must be taken here as a Sheriff de facto and if such a Challenge should be allowed no Trial could be had but should be put off unless the party were ready to shew that the Sheriff had taken the Test In 1 Cro. 369. Hore versus Brome a Challenge was made that the Sheriff which Returned the Jury had a Writ of Discharge before he made the Return and it was disallowed by the Court as contrary to the Record Rashly versus Williams Trin. 4 Jac. Rot. 730. PLACITA apud Westm ' coram Edwardo Herbert Mil ' Covenant against an Attorney upon Articles of Agreement for quiet enjoyment of Lands Sociis suis Justic ' Domini Regis de Banco De Termino Sanctae Trinitatis anno regni Domini nostri Jacobi Secundi Dei gratia Angliae Scotiae Franciae Hiberniae Regis Fidei defensor ' Quarto Rot. 730. Alias prout patet Termino Paschae ult ' praeterit ' Rot. DCXLVIII continetur sic Memorandum quod secundo die Maij isto eodem Termino ven ' hic in Cur ' Jonathan ' Rashleigh Armig ' per Carolum Dymock Attorn ' suum exhibuit Justic ' Domini Regis hic quandam Billam suam versus Humfridum Williams Gen ' un ' Attorn ' Cur ' DnÌ„i Regis de Banco hic praesent ' hic in Cur ' in propria persona sua de Placito conventionis fract ' cujusquidem Billae tenor sequitur in haec verba Justic ' Dom ' Regis de Banco Cornub. ss Jonathan ' Rashleigh Ar ' per Carolum Dymocke Attorn ' suum queritur de Humfrido Williams Gen ' un ' Attorn ' Cur ' Domini Regis de Banco hic praesent ' hic in Cur ' in propria persona sua de Placito quod cum per quosdam Articulos Agreeament ' fact ' sexto die Aprilis anno Domini Millesimo sexcentesimo octogesimo quinto apud Lanceston ' in Com' praedict ' inter praedict ' Humfridum Williams per nomen Humfrid ' Williams de Burgo de Bodmyn ' in Com' Cornub ' Gen ' Ex parte of another pro ex parte cujusdam Thomae Manning de London ' Gen ' ex una parte eundem Jonathanum per nomen Jonathani Rashleigh de Menabilly in Com' praedict ' Armig ' ex altera parte fact ' quor ' quidem Articul ' unam partem sigillo praedict ' Humfr ' signat ' idem Jonathan ' hic in Cur ' profert cujus dat' eisdem die anno testat ' existit Profert in Curia Imprimis concludat ' agreat ' fuit inter partes praedict ' Quod idem Jonathan ' Rashleigh pro Considerat ' in Articulis praedict ' postea express quiete pacifice haberet teneret occuparet The Articles set forth possideret gauderet Tenementum vocat ' le Saltmarsh Marsh Parke cum pertin ' scituat ' jacen ' existen ' in paroch ' de Tywardreth in Com' praedict ' pro Termino unius anni integri à Vicesimo quinto die Martij tunc ult ' praeterit ' plenar ' complend ' finiend ' except ' è dimissione praedict ' cuidam Edwardo Knollis nuper tenen ' praemissorum unum parvum clausum parcell ' praemissorum tunc arat ' Anglicè Tilled usque post tempus messionis asportationis grani abinde per praedict ' Edward ' Knollys Item concludat ' agreat ' fuit inter partes praedict ' quod praedict ' Jonathan ' Rashleigh solveret seu solvi causaret pro tenemento praedict ' summam viginti librarum legalis Anglicanae monetae per quarterial ' solutiones maximè usual ' in anno Item concludat ' agreat ' fuit inter partes praedict ' quod praedict ' Jonathanus Rashleigh ad finem termini praedict ' sursum redderet tenementum praedict ' bene reparat ' in tam bona conditione quam idem Jonathan ' tunc inveniebat tenementum praedict ' Entry of the Plaintiff prout per Articulos praedict ' plenius apparet Virtute quorum quidem Articulorum idem Jonathan ' postea scilicet nono die Aprilis anno Domini Millesimo sexcentesimo octogesimo quinto supradicto in tenementum praedict ' cum pertin ' except ' praeexcept ' intravit fuit inde possessionat ' Et idem Jonathan ' dicit quod licet ipse à tempore confectionis Articulorum praedict ' The Plaintiff avers performance of all the Covenants usque finem termini predict ' omnia singula conventiones agreamenta in Articulis praedict ' superius specificat ' ex parte ipsius Jonathan ' performand ' perimplend ' bene fideliter performavit perimplevit secundum vim formam effectum Articulorum praedict ' in facto idem Jonathan ' dic ' quod praedict ' Jonathan ' post confectionem Articulorum The Breach assigned scilicet decimo quinto die Aprilis anno Domini Millesimo sexcentesimo octogesimo quinto supradicto intravit in tenementum praedict ' except ' praeexcept ' per se servos suos videlicet Arthurum Harris Johannem Williams Petrum Kittoe posuit averia sua videlicet equos equas boves vaccas oves porcos bidentes suos in tenementum praedict ' except ' praeexcept ' herbam ibidem crescent ' cum averiis ipsius Jonathan ' praedict ' depast ' fuer ' conculcaver ' consumpser ' Ac superinde praedict ' Edwardus Knollys pro intratione depasturatione praedict ' postea ante finem praedict ' termini unius anni scilicet Termino Sanctae Trinitatis The Defendant and his Servants sued in an Action of Trespass in the Common Pleas. anno regni Domini Regis nunc primo in Cur ' ipsius Domini Regis de Banco eadem Cur ' apud Westm ' in Com' Midd existen ' implacitavit prosecut ' fuit ipsum Jonathanum praedict ' Arthurum Harris Johannem Williams Petrum Kittoe servos suos in placito Transgr ' pro praedict ' intratione positione averiorum suorum praedict ' in tenementum praedict ' except ' praeexcept ' herbam praedict ' ibidem crescent ' cum averiis praedict ' depascent ' Taliterque in eadem Cur ' postea super placito illo ê“cess suit quod per eandem Cur
the case of Proxies Davis Rep. 4. It is said the King has power and that by the Antient Law of the Realm to Visit Reform and correct all Abuses and Enormities in the Iurisdiction Spiritual so that an Offence of this nature is a Violation of the Kings Justice and a Transgression of the Rules of his Administration This is indeed the case of all Crimes of a publick nature the King is most evidently injured by them the Indictments run contra coronam dignitatem c. Now who should have the Forfeiture but he that hath the greatest share in the Injury Again by giving of this Forfeiture to the King the end and design of the Statute is like to be best answered By the Preamble the Statute appeareth to be made that worthy persons might be advanced to places where Iustice was to be administred and who is best to be entrusted with this but the King The Court having given these Reasons they came to consider what had been insisted on at the Bar in the behalf of the Bishop It was said that all the Jurisdiction Ecclesiastical in the Diocess was originally placed in the Bishop and the case of Gastrill and Jones 2 Ro. Rep. 646 647. was cited where it is said That the Iudicial power of the Archdeacon was derived from the Bishop he is called Vicarius Episcopi and Oculus Episcopi T is true there are some Archdeacons that have Iurisdictions peculiar and exempt but that is by Prescription or Custom these are taken notice of by Godolphin But there is nothing found of that in the Verdict and so must be taken to be the common case of an Archdeacon and that was agreed It was said this offence was reckoned Simony in the Canon Law And the Bishop had the correction of it as in Smithes Case Owens Rep. 87. This was compared to the Cases of inferiour and subordinate Officers which when they are forfeited the superiour takes advantage as in the Earl of Pembrooks Case and Sir H. Bickly Popham 119. The Keeper of a Walke in a Forest forfeited this went to him that had the custody of the Forest so in Bridgman's Rep. 27. He that hath Liberty of a Park in a Forest when forfeited it goeth to the Lord of the Forest 39 H. 6. 32. The Keeper of the Marshalsey of the Kings Bench forfeited his Office the Duke of Norfolk Great Marshal of England took advantage of it To these Cases it was said by the Court That they differed much from the Case at the Bar. First In the Cases cited the Inferior Officer is put in by the Superior and in some Cases to answer for his miscarriage ubi respondeat Superior they are Offices incident as the County Clark to the Sheriff Mittons Case 4 Co. and Scroggs Case of the Exigenter to the Chief Justice of the Common Pleas Dyer 175. But here the Bishop doth not put in the Register of the Archdeacons Court He may make one to supply that place if it falls void when the Archdeaconry is vacant but then the next Archdeacon removeth him and puts in another Secondly The Forfeitures in the Cases cited were upon Breaches of Conditions in Law annexed to the Offices and t is a Rule in Law that the Grantor is to take advantage of the Breach of all Conditions but we are in case of a Forfeiture for offending against an Act of Parliament And the Court said tho' it might be supposed originally the Jurisdiction within the Diocess was lodged in the Bishop yet the Archdeacons Court hath time out of mind been settled as a distinct Court 4 Inst 339. and the Statute of 24 H. 8. cap. 12. takes notice of the Consistory Court which is the Bishops Court and the Archdeacons Court from which there lies an Appeal to the Bishops Court in 2 Ro. Rep. 150. Chivertons Case The Archdeacon is said to have a Court of himself and that the Courts of Westminster take notice thereof Thâ—s may be resembled to the Case of the Torn and Leet in the County the Leet is supposed to have been derived out of the Torn and yet upon the Forfeiture of a Leet it shall not go to the Sheriff As to the second Point it was resolved by the Court That the King might in this Case make a Register before Office found It was agreed That where an Estate of Freehold was forfeited to the King by Act of Parliament that an Office would be requisite to vest it in the King and that by the Statute of 5 Edw. 6. against the sale of Offices all the Estate and Interest c. of the Offender is forfeited But Pollexfen Chief Justice conceived this was not an Estate in the Archdeacon but only a Power to appoint a Register and in the nature of a chose en Action like the case of Offices in the King where the King may grant or nominate to the Office but hath not the Office in him to use or execute But he conceived and with that the rest of the Court agreed that however as to the present vacancy the right to supply that was a Chattel separate from the Inheritance and the King might supply the present avoidance before any Office found tho' it be admitted that the right of nomination in point of Estate should not vest in the King before Office found Where the Kings Tenant dies seised of an Advowson or in case of an Outlawry tho' the Estate is not in the King before Office yet if the Church becomes void the King shall present before Office 20 Edw. 4. 11. The case so put of an Advowson appendant Stamf. Prerog 54. B. T is a Transitory Chattel the present avoidance Lanes Rep. 43 64. 1 Ro. Rep. 326. and Jones Rep. 425. So the Body of the Ward is in the King before Office In Case of Simony the King shall present without Office Sed nota 31 Eliz. giveth the Presentation pro hac vice only And the Court said that the Verdict found that the Plaintiffs had a Grant from the Archdeacon also so that if nothing be in the King till Office it must remain in the Archdeacon so his Grant will be good till Office found There are no disabling words in the Statute but only shall Lose and Forfeite so quacunque via data the Plaintiffs ought to have Iudgment Harris versus Parker Ante ult ' Term. IN an Action of Debt for 99 l Rent the Plaintiff Declared upon two Demises which he laid at the Parish of St. Martin in the Fields in Middlesex of a Messuage and divers Lands quae praemissa sunt struat ' jacent ' existent in super acclivitatem de Hampstead Anglicè the rise of Hampstead Hill to hold for seven years reserving upon each Demise eighteen pounds yearly Rent The Defendant pleaded Actio non quia dicit quod praed ' Johannes Harris tempore dimiss ' praed ' nihil habuit in Tenementis praedict ' unde c. The Plaintiff Replied That long before the
then it has a Proviso That if any Subject of this Realm has committed any Capital Crime in Scotland or other Foreign parts of the King's Dominions he may be sent from hence to be Tryed in such Foreign place Vpon Consideration of which Proviso the Judges unanimously gave their Opinion That there was nothing in the Habeas Corpus Act supposing he had committed a Capital Crime by Law Martial in Ireland to hinder his being sent thither to be tryed thereupon and subscribed their Names to the said Opinion and certified the same to the Privy Council Note That it was said while my Lord Hale was Chief Justice of the King-Bench that one who had committed Murther in the Barbadoes and taken here was sent over to be Tryed there But was before the Habeas Corpus Act. Patrick Harding's Case HE was Indicted at the Sessions in the Old Baily Anno primo Willielmi Mariae for High Treason The Indictment sets forth that the said Patrick Harding machinans proditorie intendens pacem communem tranquillitatem hujus regni Angl ' destruere Gubernationem dictorum domini Regis dominae Reginae infra hoc regnum Angl ' subvertere ac caedes destructiones desolationes infra hoc regnum procurare 23 Novembr ' anno regni domini nostri Willielmi Mariae c. primo apud paroch ' sanctai Martini in Campis in Com' Middlesex ' praedict ' malitiose proditorie compassavit imaginat ' fuit intendebat dict' dom ' Regem dom ' Reginam adtunc supremos veros indub ' dom ' suos non solum à statu titulo potestate imperio regimine regni sui Angl ' penitus deponere deprivare verum etiam eosdem dom ' Regem dom ' Reginam interficere ad mortem finalem destructionem ponere adducere stragem miserabilem inter subditos per totum hoc regnum alia Dominia sua causare quodque ipse praedict ' Patrick Harding ad nequissimas proditiones proditiosas intentiones suas praedict ' perimplend ' eodem vicesimo tertio die Novembr ' apud paroch ' praedict ' proditorie vi armis c. bellum rebellionem contra dictos dom ' Regem dom ' Reginam nunc ordinavit levavit gerebat ac diversos milites viros armatos armaturos ad mil ' ac bellum contra dictos Regem Reginam nunc gerend ' congregavit levavit procuravit ac viros milites sic ut praefertur levat ' extra hoc regnum Angl ' misit iter suum suscipere procuravit ad sese jungen ' aliis hostibus inimicis rebellionibus dictorum Regis Reginae bellum contra eosdem gerend ' ulterius quod ipse Patricius Harding ad nequissimas suas proditiones perimplend ' perficiend ' eodem 23 Novembr ' apud paroch ' praedict ' ut falsissimus proditor dictor ' Regis Regin ' cum quodam Johanne Taaf adtunc subdito dictor ' Regis Reginae existen ' proditorie se assembl ' consultavit ac easdem proditiones suas praed ' adtunc ibid ' eidem Johanni Taaff malitiose proditorie advisat ' loquend in auditu divers subditor ' dictor ' Regis Reginae publicavit declaravit ad suadend ' eundem Johannem Taaff adjutan ' assisten ' esse in iisdem proditionibus magnum praemium stipend ' eidem Johanni Taaff adtunc ibidem obtulit Si ipse praed ' Johannes Taaff adjutans assistens in iisdem esse vellet contra ligeantiae suae debitum contra pacem dictor ' dom ' Regis dom ' Regin ' nunc coron ' dignitat ' suas necnon contra formam Statut ' in hujusmodi casu edit ' provis ' c. Vpon Not guilty pleaded the Jury found a Special Verdict Viz. That Patrick Harding to the intent to Depose the King and Queen and deprive them of their Royal Dignity and restore the late King James to the Government of this Kingdom did for Money by the said Patrick paid list hire raise and procure Sixteen men Subjects of this Kingdom at the time and place in the Indictment mentioned to fight and wage war against the King and Queen and those Sixteen men so listed hired raised and procured did send out of this Kingdom into the Kingdom of France to assist and aid the French King then and yet an Enemy to the King and Queen and in open war with Their Majesties and to joyn themselves with the Enemies and Rebels of and against the King and Queen in waging war against the King and Queen And if upon this matter the said Patrick Harding be guilty of Treason prout the Indictment then we find him Guilty prout c. and if Not guilty c then not Guilty c. Vpon this Special Verdict found the Lord Chief Justice Justice Gregory and Justice Ventris who were then present at the Sessions conceived some Doubt for they were of Opinion that it did not come within the Clause of the Statute of 25 Ed. 3. of Levying War For that Clause is That if a man levy War against our Sovereign Lord the King in his Realm and by the Matter found in the Special Verdict it appears that these Men were listed and sent beyond Sea to aid the French King It was also Doubted whether it were a good Indictment within the Clause of the Statute of adhering to the King's Enemies the Fact found in the Verdict comes fully within that Clause viz. the sending Men to aid the French King then an Enemy to the King and Queen in open War against them But the Indictment is short as to this matter for 't is quod milites sic ut praefertur levatos extra hoc regnum Angl ' misit ad sese jungend ' aliis hostibus inimicis rebellat ' dict' Regis Regin ' whereas it should set have forth who the Enemies were that the Court might take notice whether they were Enemies as the Law intends 33 H. 6. 1. b. If the Indictment had been That he sent them to the French King then in open War c. it had been well And upon these Doubts the Case was Adjourned for further Consideration In Michaelmass Vacation the greater part of the Judges were assembled at the Lord Chief Justices Chamber and having debated the Matter amongst themselves they all except Justice Dolben agreed that the said Patrick Harding was guilty of High Treason within the Clause of the Statute for Compassing the Death of the King it being found by the Verdict That the said Patrick Harding to the intent to depose the King and Queen and deprive them of their Dignity c. did for Money hire list c. and an intent to Depose the King proved by an Overt act hath been always taken to be within the Clause of Compassing the Death of the King So is Hales's Pleas
whom the King shall have it unless there be a particular person grieved 188 189 267 268 A Forfeiture shall not bind in Equity where a thing may be done afterwards or Composition made for it 352 G Gaming See Assumpsit DIce Play not unlawful in it self tho' prohibited by several Statutes to certain persons and in certain places 175 Grant A Deed having no Execution to make it work as a Grant shall operate as a Covenant to stand seized 261. and by the Statute of Vses 266 Where Land is granted by Deed-Pool in Consideration of Natural Affection without Enrolment or Attornment whether it shall operate as a Covenant to stand seized or be void 318 H Habeas Corpus NO Habeas Corpus to be moved for in the Common Pleas unless it concerns a Civil Cause yet the contrary permitted in the case of an Attorney of that Court 24 Half-Blood The Half-Blood shall have equal Share with the Whole-Blood in Distribution upon the Statute of 22 23 Car. 2. c. 10. 317 Heir See Mortgage Heirs is Nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number 313 Heir and not Executor shall have the Surplusage of Lands leased for payment of Debts 359 I Infant INfants not foreclosed in Chancery till they come of Age 351 Intent No Exception to Vnum Vasum Vini Hispanici that is not said what the Vessel was made of for it is intended to be made of Wood 67 The Name of a Grantor omitted in an Indenrure supplied by Intendment 142 Racks in a Stable shall be intended to be fixt and need not to be shewn to be so in Pleading 214 Every Agreement must have some reasonable Construction that may may be consistent with the Intent of the Parties and therefore if a man agrees with another that he shall make a Drain through his Ground he shall not make it through the parties Stables or Buildings in case there are other places proper 278 In a Special Verdict nothing shall be intended that is not found 330 Imprisonment See Pleading Impropriation Whether a Rectory Impropriate being made a Lay-Fee can be sequestred by the Court Christian for not Repairing the Chancel 35 Ireland See Naturalization Of its Conquest and the Introducing the Laws of England there 4 The Power of an Act of Parliament in Ireland 5 K King See Forfeiture ALlegiance due to the Natural and not the Politick Person of the King 3 In case of things which are Nullius in Bonis where no visible Right appears the Law gives them to the King as Derelict Lands Treasure Trove Extra-parochial Tythes c. So where the Right is equal between the King and the Subject the Kings Title hath the Preference 268 The King is the Fountain of Justice and that as well Ecclesiastical as Civil and may by the Ancient Law of the Realm visit reform and correct Abuses in the Jurisdiction Spiritual 268 In what Cases Forfeitures are vested in the King before Office found and where not 270 L Law A Thing for which there is neither Practical Custom Judicial Precedent or Act of Parliament to warrant may well be judged to be against Law 7 The clearest way how to understand any Law is to consider what was the Judgment of those People among whom and the Times in which it was practical 17 To excite the People to the disobedience of a Law of a Publick Nature is the highest Offence under High Treason 23 Lease What Lease capable of a Release to work a Bargain and Sale 35 For 99 years if two Persons shall so long live determines upon the death of either 74 Legacy See Executor Legatees are to have their Proportion where the Assets fall short 358 Legatees shall refund against Creditors and if the Ecclesiastical Court give Sentence for a Legacy a Prohibition lies unless they take Security to refund 358 360 Licence See Distress Limitation See Original Mortgage Suit to recover a Depositum in Trust for a Feme Covert not barr'd by the Statute of Limitations 345 London Of the Custom of London relating to Orphans Money 340 341 M Market WHere a Market is granted to the Damage of another the Patent may be repeal'd in a Scire facias notwithstanding a Writ of Ad quod Damnum had been executed for the Return of that Writ was not conclusive 344 Marriage Whether a Man may marry his Great Uncle's Widow 9. He may 18 20 The four Statutes relating to Marriage expounded 11 infr Tho' the Stat. 32 H. 8. c. 38. allows all persons to Marry that are without the Levitical Degrees yet persons Pre-contracted or under a perpetual Impotence are prohibited to Marry 15 To Marry his Brother's Wife prohibited by the Statute tho' not by the Levitical Law 17. So of his Wives Sister ibid. Marriages in the ascending and descending Line prohibited without limit not so between Collaterals and the Reasons 18 The Ecclesiastical Courts have Conizance to punish persons Marrying within the Levitical Degrees but not to determine what is within the Levitical Degrees and what not 22 Agreements to settle in Consideration of Marriage favoured in Chancery 353 354 357 Marriage restrictions how to be observed 365 Mine If a Man opens a Mine in his own Land he may dig and follow the Vein under another Man's Ground 342 But if the Owner did there also he may stop his further progress ibid. Mortgage Where Lands are Mortgaged thrice over the third Mortgagee may buy in the first Incumbrance to protect his own Mortgage and he hath both Law and Equity for him 338 He shall hold the Land against the second Mortgagee until be be satisfied both the Money he paid the first Mortgagee and also his own which he lent upon the last Mortgage ibid. But where only Part of the Lands are mortgaged to the first and the whole to the second and after to the third here if the third buys in the first Title it shall protect only that part that is in the first Mortgage 339 A Purchaser or Mortgagee coming in upon a Valuable Consideration without Notice and purchasing in a precedent Incumbrance it shall protect his Estate tho' he purchased in the Incumbrance after Notice of a second Mortgage ibid. Mortgages not relievable in Chancery after 20 years for the Stat. 21 Jac. 1. c. 16. limits the time of Entry to that number of years and 't is best to square the Rules of Equity as near the Rules of Reason and Law as may be 340 Upon a Mortgage in Fee the Redemption Money shall be paid to the Executor and not to the Heir 348 351 Where by a Devise of all his Lands Lands in Mortgage pass 351 Where a man 's own Covenant shall restrain him from his Equity of Redemption and where it shall not 365 Murder Husband kills a Man in the act of Adultery with his Wife Manslaughter and not Murder the Provocation being exceeding great Vide the First Part of these Reports 158 N Naturalization WHether