Election And this Indictment is found before Mr. Mayor our Fellow Iustice and four more at the most so that five who are the lesser number exercise their Authority over those that were six in number when they acted which fix were as much Iustices of the Peace as they five It is observable that tho' we were six of us and all unanimous in our Election yet they have politickly Indicted but four of us and left two out because it would have been too gross and palpable if six Iustices of Peace should have been indicted before a lesser number of their Brother Iustices But had they Indicted all six it would then plainly have appear'd too that the choice had been made by the greater part which they wisely thought to conceal but yet it does appear in their very Indictment though darkly couch'd in it for it says that we four being Recorder and Aldermen Cum aliis Aldermannis did chuse the Alderman that word Aldermannis being in the Plural Number must be two more at least If it shall be adjudg'd that we cannot chuse an Alderman but by the Mayor's Summons and in his presence these Mischiefs will follow That he will wholly govern and dispose of Elections at his single will and pleasure for he that can order the time as he pleases and forbear to summon the Electors till he sees his own opportunity and advantage tho' often desired to go on upon it and refuses to do it time after time till such as will not comply with him be out of the way as the Recorder is very seldom there and tarries but a night or two and then is in a hurry of Business and most of the Aldermen are often at their Country Houses the Mayor will cast the choice upon whom he thinks fit as in this case he has done This Mayor and four Aldermen have rejected the choice made by six and of the person that was next in course and every way qualified And yet the Charter thought not fit to trust any fewer than the Mayor and the whole Bench of Aldermen in a matter of this importance to the City If it be said That in case the Mayor unreasonably defer it we may complain to this Court viz. the King's-Bench and have a Mandamus or apply our selves to the King and Councel to compel him to proceed to an Election Who will be at so great a charge and trouble And that course is not so speedy it may chance to be in a Vacation but let it be as speedy as can be the Mayor in the mean time has obtain'd his Ends and gain'd his Opportunity and done his Work as the Mayor in our Case did where the Mayor and four more but five in all being minor pars have controll'd the choice made by the major pars If it shall be said That if the major pars be present and join in Voting to an Election tho' they divide in the person yet the major pars so met shall make a good Election and in Law it shall be the choice of all present That I must deny for the words of the Charter are That the major pars superviventium shall make the choice that is as I understand it agree in their Votes or Voices in the Party chosen and so it was in the choice that we six made This agrees with the Rules of the Common Law in Elections and Leases to be made by Corporations Dyer 247. plac 74. and Sir John Davies Rep. 47. And this agrees with the Statute of 33 H. 8. cap. 27. But if this should not be Law as I take it is yet the subsequent Election of an Alderman made by the Mayor and four Aldermen more cannot be good for though the Mayor and seven Aldermen were present at it yet three of them did not join in going then to an Election for they had join'd with us before in our choice and therefore oppos'd any after Election to be made But they have gotten a conceit among them at Bristol that what is done in a Man's presence where his presence is requir'd by their Charter tho he dissent and oppose what is done is yet legally done As in the Case of the Swearing of an Alderman by the express words of the Charter it cannot be done but before the Mayor and Recorder both This Sir Richard Hart was duly chosen an Alderman long ago but not sworn until the last Gaol-Delivery when we were going to Try the Felons I being present they thought that sufficient to satisfie the Charter and in a Tumultuous manner with an hideous noise they cryed out to swear him and this was not the usual place neither for it I oppos'd the Swearing of him and I will justifie it that he was utterly unfit to be Sworn by something that happenn'd since his being Elected an Alderman they would not hear me but resolv'd to proceed to swear him because I was present with the Mayor Thereupon I withdrew and in my absence they went on to swear him and he now acts as an Alderman and as a Iustice of Peace under this colour If no Election of an Alderman can be made but in the Mayor's presence it will be in the power of one single person if he be obstinate and wilful to forfeit the Charter For if he find the Aldermen like to chuse contrary to his mind he need but with draw and all the rest are insignificant persons and so there shall be no Election in any reasonable time and thereby the Liberties forfeited If this absolute power allow'd to Mayors may serve a politick Turn for once it may do as much Mischief another time for he may be of a contrary and cross humour to what may be desir'd And he is not a person nominated by any superiour power to that place or impos'd upon the Corporation but chosen from amongst themselves and chosen by themselves But tho' they chuse him yet it is not safe to trust all the Liberties of the City in the Breast of one Man for one man may easily change and be wrought upon where many cannot It is better to trust twelve than one The Right of Election is a very tender thing and it is a Maxim at the Common Law and strengthned by several Acts of Parliament That Elections should be free By the Stat. of Westm the 1st in the time of that Wise and Excellent King Edward the I. It is Enacted That Elections be free And it forbids under a grievous Penalty those are the words that nul haut home no great Man such as every Mayor is in his sphere shall disturb to make free Election Sir Edward Coke in his 2 Inst f. 169. in his Exposition of that Statute says it extends to all sorts of Elections and agreés with the Maxim of the Common Law Now if the Mayor shall at three several times refuse the advice and desire of the Aldermen and knowing that they can make no choice without him refuse to join with them till he
Sir Thomas claimed a Property whereupon he was ordered to amend his Return and then the Court of Common-Pleas bailed him Banson versus Offley AN Appeal of Murder was tried in Cambridgshire against three persons An Appeal of a Murder was tried not where the Stroak was given but where the Party died and the Count was that Offley did assault the Husband of the Appellant and wounded him in Huntingtonshire of which Wound he did languish and dye in Cambridgeshire and that Lippon and Martin were assisting The Iury found a special Verdict in which the Fact appeared to be that Lippon gave the Wound and that Martin and Offley were assisting The first Exception to this Verdict was that the Count and the Matter therein alledged must be certain and so likewise must the Verdict otherwise no Iudgment can be given but here the Verdict finding that another person gave the Stroak and not that person against whom the Appellant had declared 't is directly against her own shewing 2. This Fact was tried by a Iury of Cambridgshire when it ought to have been tried by a Iury of both Counties The Court answered to the first Exception that it was of no force and that the same Objection may be made to an Indictment where in an Indictment if one gives the Stroak and another is abetting they are both principally and equally guilty and an Indictment ought to be as certain as a Count in an Appeal As to the second Exception 't is a good Trial by a Iury of Cambridgshire alone and this upon the Statute of 2 3 Ed. 6. 2 3 Ed. 6. cap. 24. the Words of which Statute are viz. Where any person c. shall hereafter be feloniously striken in one County and dye of the same Stroak in another County that then an Indictment thereof found by the Jurors of the County where the death shall happen whether it be found before the Coroner upon the sight of the Body or before the Justices of the Peace or other Justices or Commissioners who shall have Authority to enquire of such Offences shall be as good and effectual in the Law as if the Stroak had been in the same County where the Party shall dye or where such Indictment shall be found 'T is true 4 Inst 49 that at the Common Law if a Man had received a mortal Wound in one County and died in another the Wife or next Heir had their Election to bring an Appeal in either County but the Trial must be by a Iury of both Counties But now that mischief is remedied by this Statute which doth not only provide that an Appeal shall be brought in the County where the Party dyed but that it shall be prosecuted which must be to the end of the Suit Adjornatur Dominus Rex versus Hinton and Brown AN Indictment was brought against the Defendants setting forth Subornation of Perjury that a Conventicle was held at a certain place and that they movebant persuadebant subornaverunt a certain person to swear that several Men were then present who really were at that time at another place They were found guilty and a Writ of Error was brought to reverse the Iudgment the Error assigned was that the Indictment doth not set forth that any Oath was made so it could not be Subornation There is a difference between the persuading of a man to swear falsly and Subornation it self for an Indictment for Subornation always concludes contra formam Statuti Curia 'T is not enough to say a Man suborned another to commit a Perjury but he must shew what Perjury it is which cannot be without an Oath for an Indictment cannot be framed for such an Offence unless it appear that the thing was false which he was perswaded to swear The Question therefore is If the person had sworn what the Defendants had persuaded him to do whether that had been Perjury There is a difference when a Man swears a thing which is true in Fact and yet he doth not know it to be so and to swear a thing to be true which is really false the first is Perjury before God and the other is an Offence of which the Law takes notice But the Indictment was quashed because the Words Per Sacramentum duodecim proborum legalium hominum were left out They held that if the Return had been right upon the File the Record should be amended by it Blaxton versus Stone THE Case was this viz. A Man seised in Fee c. What words make an Estate Tail in a Will had Issue two Sons he devised all his Land to his eldest Son and if he die without Heirs Males then to his other Son in like manner The Question was Whether this was an Estate Tail in the eldest Son Curia 'T is plain the Word Body which properly creates an Estate Tail is left out but the intent of the Testator may be collected out of his Will that he designed an Estate Tail for without this Devise it would have gone to his second Son if the first had died without Issue 'T is therefore an Estate Tail DE Termino Paschae Anno 3 Jac. II. in Banco Regis 1687. Herbert Chief Justice Wythens Justices Holloway Justices Powel Justices Dominus Rex versus William Beal MEmorandum A Souldier executed not in the County where he wes condemned That on Saturday April 15. Mr. Attorny moved that this Court would award Execution upon the Defendant who was a Souldier for deserting of his Colours and was condemned for the same at the Affizes at Reading in Berks and reprieved and that he might be executed at Plymouth where the Garrison then was The Chief Iustice in some heat said that the Motion was irregular for the Prisoner was never before the Court. Mr. Attorny then moved for a Habeas Corpus and on Tuesday April the 18th the Souldier was brought to the Barr and Mr. Attorny moved it again But it was affirmed by the Chief Iustice and Iustice Wythens that it could not be done by Law for the Prisoner being condemned in Berks and reprieved by the Iudge to know the Kings Pleasure and now brought hither cannot be sent into another County to be executed it may be done in Middlesex by the Prerogative of this Court which sits in that County but no where else but in the proper County where the Trial and Conviction was so the Prisoner was committed to the Kings Bench and the Record of his Conviction was not filed But it was the King's Will that this Man should be executed at Plymouth where the Garrison was that by this Example other Souldiers might be deterred from running from their Colours SIR Robert Wright who was made Chief Justice of the Common Pleas in the room of Sir Henry Beddingfield who died the last Term as he was receiving of the Sacrament was on Friday following being the 21st of April made Chief Justice of this Court in the place of
of the Alderman to supply whose place there needed the Election He was not in the Town that was to chuse whereof he was Mayor when the Election was made The Aldermen were under an apprehension that they should be guilty of a great omission and neglect of their Duty and perhaps had some thought of their being under an Oath too and that they might be liable to punishment if they did not chuse within the eight days prescrib'd by their Charter nay 't is likely they thought they could make no choice at all if they did it not within the eight days Tho' all this was but their mistake of the Law yet it was very pardonable in them The Iudges in their Resolution upon that Case rectifie that Mistake and a new Election is thereupon order'd by this Court The Mayor there was not wilfully absent for he was at London when the Alderman died he was at a very great distance from his Town too viz. Launceston about 200 miles as I take it so that he could hardly hear of the death of the Alderman in the eight days time and go down thither before the end of the eight days there was no great necessity of an Election so soon And the Aldermen had done what they did out of a zeal for the Publick though it were a zeal without knowledge But I do not find that the void Election and the Aldermens meeting about it was held a Ryot or an unlawful Assembly No they were not so much as blam'd for what they did nay sure they were rather to be commended for their just intentions But our Case was quite another thing And all our Circumstances and the very plain words of our Charter that appoints the manner of our Election we had to our great charge and upon good advice drawn up in a special Plea for the Question truly arises upon the words of the Charter and the construction of them How it happen'd I cannot tell but a Iudge ruled us to plead not Guilty our chargeable special Plea came in a little too late It was a matter of Record and of Law and fitter to be determin'd by the Iudges than by a Iury. But these in truth were our Circumstances as I shall briefly relate them and I am ready to make out the truth of them An Alderman of Bristol tho' chosen yet cannot officiate till he be sworn he cannot be sworn by the express words of the Charter but before the Mayor and Recorder both I being the Recorder of Bristol happenn'd to be there some time before the day of chusing Members to the Oxford Parliament not long after Sir John Lloid's death I was indeed invited thither Sir Richard Hart the then Mayor and all of us I think not one Alderman absent were then met in the Council Chamber the usual place for that purpose we had nothing else to do It was mov'd that we might then make choice of a new Alderman while not only Mr. Mayor was present but while the Recorder was there too So that the Party chosen might instantly have been sworn and enter'd upon his charge for they have their distinct Wards And the Recorder many times comes not thither in a year or two for I live forty Miles from them and I seldom tarry above two nights at a Gaol-Delivery but then as it fell out I was there upon another occasion None oppos'd it but Mr. Mayor and he did it upon a Ceremony and Complement as he pretended because Sir John Lloid as he said was not yet buried Out of respect to Mr. Mayor we did forbear Some good time after and after Sir John Lloid had been buried I happen'd unexpectedly to be there again and Mr. Mayor was earnestly press'd again then to go to an Election upon the former reason that the new Alderman might presently be sworn Mr. Mayor still refus'd I do not remember but all the rest were very willing to have gone to an Election We did the second time forbear tho' I think we were all there I am sure a great number I tarried then four or five days it was at the Election to Parliament the Poll lasted six days but I left them at the Poll I was not fond of being chosen The Evening as I take it before I went away we were again upon the place and the Mayor with us and he was again press'd to it but wilfully went away and we still forbore But that night some of us sign'd a Writing desiring Mr. Mayor to joyn with us and we declar'd in it if he did not joyn we would proceed without him being the major pars This shews we had no design to chuse in his absence nay it plainly appear'd that the design was on the Mayor's part for he knew I could not stay and he was desirous to chuse in the absence of some of us that he might carry the Election against the person next in course to be chosen and every way qualified viz. Alderman Day I consulted the Charter and found it as I have now observ'd upon it and was clearly of Opinion for the Reasons I have offer'd that in such Circumstances the major part might chuse We gave notice to the Mayor and all the Aldermen then in Town and tho' the Government is most miserably divided yet in this Business there was nothing of Faction and the different Parties were not engag'd only the Mayor had his Design For we were six Aldermen at the Choice Sir Robert Cann an intimate Friend of the Mayor's being lame of the Gout sent us an Excuse but would approve of our Choice Another of our number one of our six is a zealous Man of Mr. Mayor's way yet not taking that to be now concern'd joyned with us and voted the same way We were six and this appears by the Indictment and we were unanimous in the person we chose No other person was so much as nam'd nor I believe thought on by any Body unless by Mr. Mayor there were but four Aldermen more in being for Mr. Mayor was none And the person chosen was not only next in course but every way qualifi'd has a great Estate worth three or four of some of the Aldermen no Tang of a Fanatick a constant Churchman he had but one great Fault he gave his Vote at the Election to Parliament for my self and Sir John Knight against Mr. Mayor and Sir Tho. Earl The person is not sworn to this day nor does desire the Office but rather declines it being fit for it He should have been Mayor this Year in course but is put by it and he is contented There has been another since chosen in his place by the Votes of five only Sir Richard Hart the Mayor being one I am sure they are not major pars And for this choice by six who are Iustices of the Peace as well as Mr. Mayor and the other four we who are four of six are all Indicted for a Ryot upon the account of this
Commitment and that for two reasons 1. Because the persons committing had not any Authority so to do for upon the Return it appears that they were committed by several Lords of the Council whereas it should have been by so many Lords in Council or by Order of Council 2. They ought not to be committed for this Fact which is only a Misdemeanour The Bishops are Peers and therefore the Process ought to be a Summons by way of Subpoena out of the Crown Office and not to commit them the first time If a Man comes in voluntarily he cannot be charged with an Information neither can a person who is found in Court by any Process be so charged if it be illegal as if a Peer be committed by Capias Iustice Allybon replyed that when a Commitment was made by the Lord Chief Iustice of this Court his Name is to the Warrant but not his Office 't is not said Committitur per Capitalem Justiciarium Angliae c. for he is known to be so and why should not a Commitment by such persons Dominos Concilij be as good as a Commitment by Sir Rob. Wright Capitalem Justiciarium That it was enough for the Officer to return his Warrant and when that is done the Court will presume that the Commitment was by the Power which the Lords in Council had and not by that Power which they had not To which it was answered by Mr. Finch that the Lord Chief Iustice always carries an Authority with him to commit where-ever he goes in England but the Lords of the Privy Council have not so large a Power for though they be Lords of the Council always yet they do not always act in Council Then the Statute of 17 Car. 1. cap. 10. was read in which there is mention made of a Commitment by the Lords of the Privy Concil c. But it was answered that that Statute was to relieve against illegal Commitments and those enumerated in that Act were such only and none else And it was strongly insisted that Peers of the Realm cannot be committed at the first instance for a Misdemeanour before Iudgment and that no President can be shewed where a Peer hath been brought in by Capias which is the first Process for a bare Misdemeanour The constant Proceedings in the Starr-Chamber upon such Informations were Crompt Jurisdiction 33. Dyer 315. 4 Inst 25. Regist 287. viz. First the Lord Chancellor sent a Letter to the person then if he did not appear an Attachment went forth The Kings Council answered Sir Baptist Hick's Case Hob. that a Peer may be committed for the Breach of the Peace for which Sureties are to be given and can there be any greater Breach of the Peace than a Libel against the King and Government 'T is certainly such a Breach of the Peace for which Sureties ought to be demanded for where there is any seditious Act there must be a Breach of the Peace and if Sureties are not given then the person must be committed The Objections were over-ruled by three Iudges Then the Information was read which in Substance was viz. That the King by vertue of his Prerogative did on the 4th day of April in the third year of his Reign publish his gracious Declaration for Liberty of Conscience which was set forth in haec verba That afterwards viz. 27 Aprilis in the fourth year of his Reign the King did publish another Declaration reciting the former in which he expressed his care that the Indulgence by him granted might be preserved c. that he caused this last Declaration to be printed and to manifest his favour more signally towards his Subjects on the 4th day of May 1688. it was Ordered in Council that his Declaration dated the 27th day of April last be read on two several days in all Churches and Chappels in the Kingdom and that the Bishops cause the same to be distributed through their several Diocesses c. That after the making of the said Order c. the Bishops naming them did consult and conspire amongst themselves to lessen the Authority and Prerogative of the King and to elude the said Order and in further prosecution of their said Conspiracy they with Force and Arms did on the 18th day of May c. unlawfully maliciously c. frame compose and write a Libel of the King subscribed by them which they caused to be published under the pretence of a Petition Then the Petition was set forth in haec verba In contemptum dicti Domini Regis c. The King's Council moved that the Defendants might plead instanter for so they said is the course of the Court when a Man is brought thither in Custody or appears upon Recognizance But the Council on the other side prayed an Imparlance and a Copy of the Information and argued that the Defendants ought not to plead instanter because their Plea ought to be put in Writing and that they ought to have time to consider what to plead that it was impossible to make any Defence when they did not know the Accusation and that the Practice of the Court anciently was with them 'T is true when a Subpoena is taken out and the Party doth not appear but is brought in by Capias he shall plead instanter and the reason is because he hath given delay to the Cause So 't is likewise in Cases of Felony or Treason but not to an Information for a Misdemeanour Then the Clerk of the Crown informed the Court that it was the Course to plead instanter in these following Cases viz. when the person appears upon a Recognizance or in propria persona or is a Prisoner in Custody upon any Information for a Misdemeanour where no Process issued out to call him in As to the Objection that the Defendants cannot make any Defence without a Copy of the Information the Vsage is otherwise even in Cases where a Man's Life is concerned and what greater difficulty can there be to defend an Accusation for a Misdemeanour than a Charge for High-Treason certainiy the Defendants all know whether they are innocent or not These Points being over-ruled by the Court the Archbishop offered a Plea in writing the Substance of which was that they naming all the Defendants were Peers of Parliament and ought not to be compelled to answer this Misdemeanour immediately but they ought to appear upon due Process of Law and upon their Appearance to have a Copy of the Information and afterwards to imparle and because they were not brought in by Process they pray the Iudgment of the Court. This Plea was offered to the end that what was denied before upon a Motion might be settled by the Opinion of the Court but it was over ruled Then they pleaded severally Not-Guilty and were tried at the Barr a Fortnight afterwards by a Middlesex Iury and acquitted Anonymus In the Common-Pleas AN Action of Debt was brought upon a Bond against the Defendant
who makes a Lease of his Land shall forfeit it but this doth not conclude an Infant 4. There is not any necessity to construe an Infant to be within this Custom for 't is not found that the Lord was to have a Fine upon admittance and 't is no consequence to say that the Lord shall have a Fine because usually Fines are taken upon admittances 1 Leon. 100. 3 Leon. 221. for an Infant may be admitted to a Copyhold but not be bound to tender his Fine at any time during his Non-age Justice Gregory was of the same Opinion which he chiefly grounded upon Sir Richard Letchford's Case between which and the Case at the Barr he said there was no material difference only in that Case the Heir was beyond Sea and in this at the Barr 2 Cro. 226. Latch 199. Godb. 364. Jones 391. Dyer 104. he was an Infant 'T is very true that the Books mention a Seisure quousque 't is so said by Iustice Williams in Croke but he gives no reason for it 't is only an Opinion obiter but it is clear by many Authorities that Infants may be bound by Acts of necessity and so they may by a Custom Iustice Dolben of the same Opinion which he said was agreeable to the reason of the Law in parallel Cases An Infant is priviledged in a Fine for he is excepted by the Statute because he knows not how to make his Claim He said this was likewise agreeable to the Custom of 26 Mannors of which he was formerly Steward for in such Cases he always marked the Court Roll Nulla Proclamatio quia Infans It cannot be a Forfeiture quousque because an Infant is wholly exempted by the Custom and therefore 't is no Forfeiture at all 'T is an Objection of no moment to say that the Lord by this means will lose his Fine and that he hath no remedy to make the Infant when of Age to be admitted for no Fine is due to him before admittance But this Objection will be of less weight if the loss of the Infant be compared to that of the Lord who looseth only the Interest of a Fine before Admittance and shall this Infant who is now but three years of Age loose the Profits of his Estate for 18 years But there may be a way found out that neither may loose for if it should be that when the Infant comes of Age his Estate should be then forfeited if he doth not tender himself to be admitted after three Proclamations Now upon his admittance the Lord may set a reasonable Fine having respect to the length of time in which it was deteined from him Stowel's Case was no more but this viz. Pl. Com. 356. A Disseisor levied a Fine with Proclamations and lived three years his Heir being under Age and the five years incurred after the said Heir came of Age and then he entred within a year and his Entry was adjudged unlawful But that will not concern this Case because it was a Iudgment upon the Statute of H. 7. 4 H. 7. c. 24. for the five years being once attached and begun in the life of his Ancestor shall incurr and go on and bind the Infant if he do not pursue his Claim within that time after he comes of Age but 't is to be observed that my Lord Dyer in the Argument of that Case said nothing of a Seisure quousque The Chief Iustice was of a contrary Opinion from the other three Iustices and that the Iudgment ought to be reversed Because until the Infant is admitted the Estate remains in the Surrenderor and without an Admittance he cannot enter but by a special Custom to warrant it and for this reason 't is that the Surrenderor shall have an Action of Trespass against any person who enters because he shall be intended still in possession till the Admittance of another If so 2 Cro. 368. Yelv. 16. then Infancy cannot protect an Estate to which the Infant hath no Title till Admittance for till then he hath neither Jus in re nor Jus ad rem This is a Condition annexed to the Estate to be performed by the Infant by which he is bound notwithstanding his Non-age otherwise his Estate is forfeited The Custom which obligeth him to be admitted is to entitle the Lord of the Mannor to a Fine to which he hath a right Now Infancy was never yet extended to endanger that remedy which Men have to recover their Rights it has been often so far extended as to delay such a remedy but never to destroy it for if the Infant should die the Lord looseth the Fine and then another person is to be admitted but he cannot encrease the Fine upon him who is a Stranger for the neglect of the Infant 'T is true Bridg. 83. Yelv. 144. Poph. 127. where an Infant hath a Right it shall be preserved though a Fine be levied and the five years pass but in this Case he hath no Right before Admittance If a Feme Covert be an Heir to a Copyhold Estate where the like Custom is and she marrieth and the Husband after three Proclamations will not come and be admitted 't is a Forfeiture during the Coverture Now the reason in the Cases of Coverture and Infancy is the same for if there shall be a Seisure during the time the woman is Covert why not during the Infancy As to Sir Richard Letchford's Case the Heir was beyond Sea but when he came into England he desired to be admitted but this Infant never yet desired to be admitted he stands upon his Priviledge of Infancy But upon the Opinion of the other three Iustices the Iudgment was affirmed that the Custom doth not bind the Infant Carter versus Dowrich A Covenant to pay so much Mony to the Plaintiff or his Assigns as should be drawn upon the now Defendant by a Bill of Exchange Custom of Merchants where it must be particularly set forth c. The Breach was assigned in Non-payment The Defendant pleaded that the Plaintiff secundum legem Mercatorum did assign the Mony to be paid to A. who assigned it to B. to whom he paid 100 l. and tendred the rest drawn upon by Bill of Exchange c. And upon a Demurrer Mr. Pollexfen insisted that this was not a good Plea because the Defendant had not set forth the Custom of Merchants without which all these Assignments are void of which Custom the Court cannot take any judicial notice but it must be pleaded and 't is not sufficient to say that the Assignment was made secundum legem Mercatoriam but it must be secundum consuetudinem Mercatoriam otherwise 't is not good E contra E contra Litt. 182. It was argued that the Custom of Merchants is not a particular Custom and local but 't is of an universal extent and is a general Law of the Land The pleading it as 't is here is good for if an Action is brought against
an Inn-keeper or common Carrier 't is usual to declare secundum legem consuetudinem Angliae for 't is not a Custom confined to a particular place but 't is such which is extensive to all the King's People The word Consuetudo might have been added 1 Inst 182. but it imports no more than Lex for Custom it self is Law If the Custom of Merchants had been left out the Defendant had then pursued his Covenant for if a Man agrees to pay Mony to such a person or his Assigns and he appoints the payment to another a tender to that person is a good performance of the Covenant But the Court were of Opinion that this was not a good Plea Panton versus the Earl of Bath A Scire Facias to have Execution of a Iudgment obtained in the Court of Oliver late Protector of England and the Dominions and Territories thereunto belonging Where the Pleading is good in substance tho' there is a small variation it will not hurt and in reciting the Iudgment 't is said that it was obtained before Oliver Protector of England and the Dominions thereunto belonging leaving out the word Territories And upon a Demurrer Mr. Pollexfen held this to be a variance Yelv. 212. Orde versus Moreton and like the Case where a Writ of Error was brought to remove a Record in Ejectment directed to the Bishop of Durham setting forth that the Action was between such Parties and brought before the said Bishop and seven other persons naming them and the Record removed was an Ejectment before the Bishop and eight others so that it could not be the same Record which was intended to be removed by the Writ E contra E contra It was said suppose the word Scotland should be left out of the King's Title would that be a variance The Iudicature in this Case is still the same and the Pleading is good in Substance and of that Opinion was the whole Court Hyley versus Hyley HYley had Issue W. Where the Reversion in Fee shall pass in a Will by the words viz. Remaining part of my Estate his eldest Son who had Issue Peter Charles John He by Will devised 1000 l. to his eldest Son and several parcels of Land to other Legatees Then he gave to Peter Lands in Tail Male To John a Mansion House now in question in Tail Male He devised another House to his Grandson Charles in like manner And all the rest and remaining part of his Estate he devised to his three Grandsons equally to be divided amongst them that only excepted which he had given to Peter Charles and John and to the Heirs of their Bodies whom he made Executors Then by another Clause he devised viz. That if either of his Executors die without Issue then the part or parts of him so dying shall go to the Survivor or Survivors equally to be divided John the youngest Grandson dyed without Issue and the question was whether the Reversion of his House shall be divided between his surviving Brothers or descend to his Heir And it was adjudged that the Exception in the Will did comprehend the Reversion in Fee and that it did not pass but without such an Exception it had passed * Allen 28. as where a Man devised his Mannor to another for years and part of other Lands to B. and his Heirs and all the rest of his Lands to his Brother in Tail it was held that by these words the Reversion of the Mannor did pass Anonymus NOTA. An Infant having entred into a Statute brought an Audita Querela to avoid it he was brought into the Court and two Witnesses were sworn to prove his Age and then his Appearance and Inspection were recorded he was bound in this Case with two other persons for 1600 l. and had no more than 200 l. for his share Lydcott versus Willows IN Ejectment A special Verdict was found viz. Devise of an Hereditament carries the Reversion in Fee that the Testator being seized in Fee of certain Houses in Bedfor-Bury and in Parker's Lane did by Will devise his Houses in Parker's Lane to charitable Vses then he gave several specifick Legacies to several persons named in the said Will and then he devised his Houses in Bedford-Bury to Edward Harris and Mary his Wife for their Lives then follow these words viz. The better to enable my Wife to pay my Legacies I give and bequeath to her and her Heirs all my Mesuages Lands Tenements and Hereditaments in the Kingdom of England not before disposed of c. The Question was whether this Devise would carry the Reversion of the Houses in Bedford-Bury to his Wife Adjudged that it did not but that it ought to go to the Heir of the Testator who was Plaintiff in this Case It being found that Harris and his Wife were dead and that the Wife who was Executrix had sufficient Assets to pay the Legacies without the Reversion But Iustice Powel was of another Opinion for that the word Hereditament imports an Inheritance and if it had devised thus viz. the Inheritance not before disposed of the Reversion had passed Afterwards a Writ of Error was brought in the Exchequer-Chamber upon this Iudgment 2 Vent 285. and according to the Opinion of Iustice Powel the Iudgment was reversed Nota. A Rule of Court was made that no Certiorari should go to the Sessions of Ely without Motion in Court or signing of it by a Iudge in his Chamber But Mr. Pollexfen insisted that the Sessions there did not differ from other Courts and Franchises for the inferior Courts in London are of as large a Iurisdiction as any and yet a Certiorari goes to them and so it ought to go to Ely for 't is the Right of the Subject to remove his Cause hither Their course in the Royal Franchise of Ely is to hold the Sessions there twice a year viz. in March and September in which two Months the Iudges are seldom in Town and if this Court should deny a Certiorari the Court of Common Pleas would grant it Attorney General contra This Franchise of Ely is of greater Priviledge and Authority than any inferior Court for it hath many Regalia though 't is not a County Palatine A Certiorari will not lie to the Grand Sessions nor to a County Palatine to remove Civil Causes 't is true it lyeth to remove Indictments for Riots and this Franchise being truly called Royal hath equal priviledge with a County Palatine and therefore a Certiorari will not lie But no Rule was made Osborn versus Steward TRespass Distress for an Heriot where it may be taken The Case upon the Pleadings was this viz. A Lease was made of Land for 99 years if Margery and Dorothy Upton should so long live reserving a yearly Rent and an Heriot or 40 s. in lieu thereof after the death of either of them Provided that no Heriot shall be paid after the death of Margery living