visitation of God by which he was disabled for a time to do any reasonable thing whatsoever and this may be as well done as to plead duress from Men which the Law allows to make compulsary Acts void My Lord Coke in Beverly's Case taking notice of the great reason of the Civil Law in Cases of this nature 4 Co. 123. which maketh all Acts done by Ideots void without their Curator's concurrence and that it was objected as a defect in the Common Law that Tutors were not assigned to such persons he answereth that our Law hath given the custody both of them and their Lands to the King which is directly contrary to his own Opinion in his 2d Institutes 2 Inst 14. where paraphrasing upon the fourth Chapter of Magna Charta which prohibits Wast in the Land of Wards from thence he inferrs that at that time the King had no Prerogative to entitle him to the Lands of Ideots for if he had that Act would have as well provided against Wast in their Lands as in those of Wards He farther adds that the Guardianship of Ideots did belong to the Lords according to the course of the Common Law Be it how it will 't is clear by all the Books that both by the Common and Civil Law their Acts are void and my Lord Coke esteemed it as a very unreasonable thing that they should not be avoided even during the life of the Party himself but it was never yet denied that they may be avoided after his death by his Heir or Executor and by parity of reason the Law will prevent Strangers from being prejudiced by such Acts. There is an Objection that some Acts done by Ideots are unavoidable as Fines levyed by them c. 'T is true such are not to be avoided not because they are good in themselves but the reason is because they are upon Record against which the Law will not suffer any Averment to be made presuming that the Courts and Iudges in Westminster-Hall would not admit an Ideot or Infant to levy a Fine This being therefore a void Surrender by a person Non compos the Estate is still in the Surrenderor and so the contingent Remainder upon his death is well attached in Charles Leach the Lessor of the Plaintiff But supposing 't is not void yet there will be scintilla juris left in Simon Leach to support the Contingency and to prove this the Case of Lloyd and Brookin was relied on which was this viz. Thomas Bradshaw was Tenant for Life 1 Mod. 92. 1 Vent 188. 2 Keb. 881. the Remainder in Tail to his first Son c. the Remainder to Paul for Life the Remainder to his first second and third Sons in Tail Thomas accepted a Fine from Paul who had then a Son born then he made a Feoffment and afterwards Paul had another Son born His eldest Son died without Issue and it was adjudged that the contingent Remainder to his second Son was not destroyed by this Feoffment because it was preserved by the right of Entry which his elder Brother had at the time it was made 2. If this Surrender is only voidable then whether Charles Leach claiming by a collateral Title can avoid it It was argued that he may for it would be absurd that he should have a Right to the Remainder and yet have no Remedy to recover it My Lord Coke in Beverly's Case tells us that there are four sorts of Privities 1. In Bloud as Heir 2. In Representation as Executor 3. In Estate as Donee in Tail the Reversion or Remainder in Fee 4. In Tenure as Lord by Escheat He affirms that the two first may shew the Disability of their Ancestor and Testator and avoid their Grants 'T is true in the third Article he is of Opinion that Privies in Estate shall not avoid the Acts of their Ancestors and he puts the Case of a Donee in Tail making a Feoffment in Fee within age and dying without Issue the Donor shall not enter because no Right did accrew to him by the death of the Donee there being only a Privity of Estate between them But this Opinion is denied to be Law by Iustice Dodderidge in his Argument of the Case between Jackson and Darcy Palm 254. who said that the Donor might enter because otherwise he would be without remedy for he could not maintain a Formedon because the Feoffment made by the Infant was no Discontinuance Besides 't is not possible there should be any Privity in Blood between the Donee in Tail and the Reversioner in Fee so that Article must be intended where they are Strangers in Blood and Privies in Estate which doth not at all concern the Case in question because William Leach is privy in Blood to his Father who made the Surrender and my Lord Coke tells us in the first Article of his distinction that such a Privy may avoid the Acts of his Ancestor It may be objected that this distinction was not then the Iudgment of the Court for it was not material to the Point in Issue which was no more than thus viz. Snow gave Bond to Beverley and exhibited his Bill in the Court of Requests to be relieved against it because at the time of the sealing and delivery thereof he was Non compos mentis But the like distinction was made in Whittingham 's Case many years afterwards 8 Co. 42. which was thus viz. Whittingham being seised of Lands held of the Queen in Soccage devised the same to Prudence his Bastard Child and her Heirs she during her Infancy made a Feoffment thereof to another and died in her Nonage without Issue the Question then was whether that Feoffment should prevent the Queen of the Escheat And adjudged it should not In which Case it was held that Privies in Blood inheritable shall take advantage of the disabilities of their Ancestors as if an Infant who is seised in Fee maketh a Feoffment and afterwards dieth his Heir may enter and avoid it The Law is the same in the Case of one Non compos mentis as in that of an Infant as to the avoiding of the Acts of their Ancestors so that Mr. Leach being privy in Blood according to my Lord Coke's Opinion in those Cases shall avoid the Acts of his Father he being Non compos at the executing of this Surrender If it should be objected that this part of the distinction ought to be taken restrictively and must be tied up to such an Heir at Law who takes an immediate possession by descent from his Ancestor the Answer is that if this Surrender is avoided Mr. Leach will take by immediate descent from his Father for though nothing but a Reversion in Fee descended to him yet he is a compleat Heir But after all this distinction made by my Lord Coke is founded upon no manner of Authority 't is only his extrajudicial Opinion for there is no reason to be given why Privies in Estate should
they are not properly sua 278 Exposition of Words and Sentences See Number Subsequent words may explain a former Sentence in a Deed but in Wills the first words guide all which follow 82 2. Action was brought by Original for that the Defendant prosecut ' fuit adhuc prosequitur in the Admiralty those words adhuc prosequitur shall not be construed to make it subsequent to the Original but must refer to the time of suing it forth 103 157 3. Doubtful Words must be Expounded always against the Lessor 230 4. To make an Assurance to the Obligee and his Heirs the Conjuction and shall be taken in the disjunctive 235 F. Fair See Trade IF the place where it should be kept is not limited by the Grant it may be kept where the Grantee will 108 False Imprisonment It will not lye against a Sheriff for taking the Body by vertue of a Casa upon an Erronious Judgment for the Execution is good till avoided by Writ of Error 325 Fees Of the Clerks of the Crown-Office the Court will not regulate upon a Motion but if oppressive they must be indicted for Extortion 297 Fines levied See Tenant at Will 6. One of the Cognisors died before the return of the Writ of Covenant 't is Error but not in the case of a Purchaser for a valuable consideratino for the Court will interpose 99 2. If the Cognisor doth dye after the Entry of the Kings-Silver the Fine is good 140 3. Writ of Covenant Teste 15th of January returnable in Crastino Purificationis taken by Dedimus 18th of Januarii The Cognizor died in Easter-Week following but four days before her Death the Kings-Silver was entred as of Hillary-Term precedent this was held a good Fine 141 4. Where a person is in possession by vertue of a particular Estate for Life and accepteth a greater Estate it shall not divest the Estate of those in Remainder for Life so as the same may be barred by Fine and Non-claim 195 5. Lease for one hundred years in Trust to attend the Inheritance cestuy que Trust being in possession Demises to another for fifty years and levied a Fine and the five years passed the Term for a hundred years is divested by this Fine and turned to a right and so barred 196 6. In what Cases a Fine is a Bar and what not 198 Fines upon Admittance See Admittance Copihold Debt 2. Infant 9. The Judges are to determine whether it be reasonable or not 134 2. Lord cannot enter for non-payment of an unreasonable Fine 134 Forfeiture If Tenant for years make a Feoffment 't is a Forfeiture but if he make a Lease and Release ' tho 't is of the same Operation yet 't is no forfeiture 151 Fraud See Evidence G. Grants Grantor and Grantee WHere an Interest is coupled with a Trust in a Grant it shall go to the Executor of the Grantee 43 2. Grants must be certain otherwise they are void 134 Grants of the King Not good for the sole Printing of Blank Bonds exclusive of all other Printers 75 2. A Grant to restrain trading to particular places is good 77 3. But of sole making Cards not good because it restrains a whole Trade ibid. 4. A Grant cannot divest the Subject of a Right enjoyed long before it was made ibid. 5. Cannot discharge a person of a Duty to which he is made lyable by a subsequent Act of Parliament 96 6. Difference between his Grants and Prohibitions 7. Where his Grants ought to be taken very strictly 168 8. In a Quo Warranto the Defendant pleaded that the King was seised in Fee of a Franchise who granted it to another Habendum the Hundred whether good or not 199 Gun See Iustice of Peace 3. Conviction before a Justice of Peace upon the Statute of H. 8. for keeping a Gun not having 100 l. per Annum quashed because it was said non habuisset instead of nunquam Habuit 100 l. per Annum 280 H. Habendum WHere it shall be said to explain the general Words preceding 81 2. Nothing passes in the Habendum but what was mentioned in the Premisses 199 Heir Error by the Plaintiff ut Consanguineus Haeres viz. Filius c. 't is sufficient without shewing the descent from more Ancestors 152 2. Where he shall take by Descent and where by Purchase 205 3. In a Bond where the word Heir is a word of Limitation and not a designation of the person 233 4. Reversion in Fee descended to an Heir after the Estate Tail spent and an Action was brought against him upon a Bond of his Ancestor 't is not necessary that the Plaintiff name all the intermediate Remainders but him who was last actually seized of the Fee 255 Heriot Lease for 99 years if A. B. C. so long live paying an Heriot upon the death of either A. assigns the term no Heriot shall be taken of the Assignee 231 2 May seize or distrain for Heriot Service if distrain it may be the Beast of any man upon the Land but if he seise it must be the very Beast of the Tenant ibid. 3. Where an Heriot is reserved upon a Demise it differs from those which are due by Tenure 231 4. Lease for 99 years if M. and D. so long live reserving an Heriot after death of either provided if D. survive no Heriot to be paid but M. survived the Court was divided whether a Heriot should be paid 230 Highways A Man cannot be exempted from repairing by the Grant of the King if made before the Statute of Ph. Mar. which charges him to repair 96 Homine Replegiando Brought for a Monster and upon the Return of the Sheriff that he had replevyed the Body he was bailed 121 2. Brought for a young Woman taken out of her Parents Custody and married against her Consent 169 Hue and Cry See Robbery Hundred Court This Court was first derived from the County Court 200 2 Hundreds were usually granted to Abbots and their Possessions coming to the Crown by dissolution of their Abbies are merged and cannot be regranted 200 I. Ideot HOW it differs from a Lunatick 43 2. The King hath power to grant his Estate to any person without Accompt to be given ibid. 3. Grant of an Ideot by the King the Grantee dieth his Executor hath an Interest in him ibid. Ieoffails See Indictment 8. Travers 4. Variance 2. None of the Statutes help an insufficient Indictment 79 2. Variance between original and declaration not aided by the Statute of Ieofails 136 3. Want of concluding without a Travers is but matter of form and aided 319 Indictment For using of Alias Preces than enjoined by the Book of Common Prayer it may be upon an extraordinary occasion and so no Offence 79 2. For scandalous words whether it lieth as it doth for Libels the one being a private the other a publick Offence 139 3. For Baretry in soliciting of a Suit against another who was not indebted to the person 97
computation of the price of Provisions and other Necessaries in 2 H. 5. and how they encreased in Value from that time till the Queen's Reign it may be reasonably affirmed that 40 s. per Annum about the time when that King lived would bear an equal proportion to 40 l. a year in her Reign and if so it may as reasonably be said that 4 l. per Annum in her days would almost bear the like proportion to 80 l. per annum now because of the vast encrease of Riches by Commerce and otherwise in this last Age and such an Estate doth now qualifie a Man to be of the Grand Jury The 40 s. per annum in King H's Reign was esteemed a sufficient Estate to supply all the common Necessities of Life Wheat being then sold for 12 d. per Quarter and good Gascoign Wine for 40 s. per Tun. It was an Age when 20 Marks per Annum was a very good Allowance to maintain a Student at the Inns of Court but too great a Charge for a Commoner to bear and therefore the Lord Chancellor Fortescue tells us that none but the Sons of Noblemen in Hospitiis illis Leges addiscebant The Jurors in those days were all Knights but are now mean and illiterate persons for 't is a very poor Estate which qualifies them for that Service How can Matters of Fact which often require great Examination be tryed by Men of such narrow Capacities which are generally found amongst Men of 10 l. per Annum for so it will be so long as the Degrees of Fortune make such a vast inequality amongst us Experience teacheth us that Men of such low Fortunes and whose Education is generally amongst the Beasts of the Plow have not the same sense of Honour and Vertue with Men of more elevated Qualities and Conversation there must be danger of Subornation and Perjury among such Jurors And what will the villanous Judgment in Attaint signifie I mean in respect to their Estates viz. That their Goods be confiscate their Lands and Possessions seised into the King's Hands their Houses demolished their Woods felled and their Meadows plowed This is a very dreadful Sentence to a Man of a good Estate which by the very Form of this old Judgment every Juror was supposed to have but 't is an empty sound to a Man of 10 l. per Annum who cannot have all those Possessions and but a very small proportion of either It may be therefore thought necessary that a farther Provision be made that none should be impanelled to try such Issues but Men of 40 l. per Annum or at least such as like the Jurors in Attaint qui multa majora habent Patrimonia than what will qualifie a Petty Juror at this day Gentlemen The following Collection is the Product of your Labours It was borrowed from you at the Bar and 't is but just to restore it I know Men have generally very faint Inclinations to approve any Writings beside their own and seldom declare in favour of a Book till they hear what success it has in the World and even then are biassed by the Multitude who very often condemn without reading or read without Understanding I have heard it often objected though I am still to learn upon what accompt that we have too many Printed Books of the Law already and that it was more certain and intelligible when fewer Volumes of it were published I must confess some of the late Reports are collected with very little Judgment But still there is a necessity of new Books tho' not of such for I would feign know how any Lawyer can now be able to advise his Client with the help and direction only of the Old Books 'T is true we have but few of them but 't is because in former Ages all Causes where the thing in demand did not exceed 40 s. were tried either in the County Court in the Hundred Court or in the Court Baron of the Mannor In those days the great Courts of Record at Westminster were not so full of Suitors as now When Bracton wrote the Justices in Eyre who had the same Power with our Justices of Assise went their Circuits but once in seven years and a long time afterwards even in the Reign of King Henry the Eighth the Judges would often rise from the Bench in Term-time without hearing a Motion or trying of a Cause and I think the Practice did not much encrease till this last Age for Anno 10 Eliz. there was but one Serjeant at the Common-Pleas Barr for a whole Term together and that was Serjeant Bendloes and I do not read that he had any Business there Nay at that time the Court of Chancery had no greater share of Practice than the Courts of the Common Law for in the two and twentieth Year of King Henry the Eighth Sir Thomas Moor being then Lord Chancellor did usually read all the Bills which were exhibited into that Court but Business is now so much encreased that all the Council can scarce find time enough to read the Briefs of such Bills which are filed every Term. But the Law hath now its Residence in Westminster-Hall most Causes of Value are there determined and the great Number of Country Attornies in our days who according to my Lord Coke's Opinion by dayly multiplying Suits have so wonderfully encreased the Business of those Courts that it seems very necessary that the judicial determinations there should by new Books be transmitted to future Ages And though some Cases in this Collection which were adjudged in the late Reign may not have the Authority of Presidents because they taste a little of the Times wherein the Administration of Justice was not so nicely regarded as the Dispensation of such things which were then thought Political Rights yet the Reader will find some good Arguments of Learned Men then at the Bar who endeavoured to support our sinking Laws I do acknowledge that if Men were just honest and impartial to themselves and others there would be no occasion for Books of this nature and because they are not so I will not make an Apology for the Publishing of this I think the Book being done with so much Care may be of good use to the Professors of the Law but submit it to your Judgments I confess I am led by my Profession to Affairs of this nature though my Circumstances disingage me from the suspicion of being an Author Vale. A TABLE OF THE CASES Contained in the THIRD PART OF Modern Reports A. ALdridge versus Duke 110 Ashcomb versus Inhabitants Hundred de Eltham 287 Ayres versus Huntington 251 B. BAxter's Case 68 Baldwyn versus Flower 120 Ball versus Cock 140 Barker Mil ' versus Damer 336 Barnes versus Eggard 39 Beak versus Tyrrwhite 194 Banson versus Offley 121 Bishops their Case 212 Bisse versus Harcoutt 281 Blaxton versus Stone 123 Boyle versus Boyle 164 Boson versus Sandford 321 Bowyer versus Lenthal 190
of setting of so many Letters together but filling up the Blanks makes them of another nature Grants of things of less moment have been adjudged Monopolies 2 Rol. Abr. 215. pl. 5. as a Patent for the sole making of all Bills Pleas and Briefs in the Council of York for by the same reason a like Patent might be granted to make all Declarations in the Courts of Westminster Hall Curia The King hath a Prerogative to Grant the sole Printing to a particular person all the Cases cited for the Plaintiff do not reach the reason of this Case for there is a difference between things of a publick Vse and those which are publick in their Nature even Almanacks have been used to ill purposes as to foretel future Events yet they are of publick Vse to shew the Feasts and Fasts of the Church The Court enclined that the Patent was not good Jackson versus Warren A Motion was made in arrest of Iudgment Amendment for that the day when the Assises were to be held and the place where were left out of the Distringas and so a mis-tryal But the Court were of another Opinion 1 Roll. Abr. 201. for if there had been no Distringas the Tryal had been good because they Jurata is the Warrant to try the Cause which was right and therefore the Distringas was ordered to be amended by the Roll. Dominus Rex versus Sparks 'T IS Enacted by the Statute of 1 Eliz. Where a Punishment is directed by a Statute the Judgment must be pursuant 1 Eliz. cap. 2.13 14 Car. 2. cap. 4. That every Minister shall use the Church-Service in such Form as is mentioned in the Book of common-Common-Prayer and if he shall be convicted to use any other Form he shall forfeit one whole Years profit of all his Spiritual Promotions and suffer six Months Imprisonment And by the Statute of King Charles the II. All Ministers are to use the publick Prayers in such Order and Form as is mentioned in the Common-Prayer-Book with such Alterations as have been made therein by the Convocation then sitting The Defendant was indicted at the Quarter-Sessions in Devonshire for using alias Preces in the Church alio modo than mentioned in the said Book and concludes contra formam Statuti He was found Guilty and fined 100 Marks and upon a Writ of Error brought Mr. Polexfen and Mr. Shower argued for the Plaintiff in Error that this Indictment was not warranted by any Law and the Verdict shall not help in the case of an Indictment for all the Statutes of Jeofails have left them as they were before Now the Fact as 't is said in this Indictment may be no offence because to use Prayers alio modo than enjoyn'd by the Book of common-Common-Prayer may be upon an extraordinary occasion and so no Crime But if this should not be allowed the Iustices of Peace have not power in their Sessions to enquire into this matter or if they had power they could not give such a Iudgment because the punishment is directed by the Statute and of this Opinion was the whole Court The Chief Iustice said that the Statute of the 23 Eliz. 23 Eliz. cap. 1. could have no influence upon this Case because another Form is now enjoyned by later Statutes but admitted that Offences against that Statute were enquitable by the Iustices The Indictment ought to have alledged that the Defendant used other Forms and Prayers instead of those enjoyned which were neglected by him for otherwise every Parson may be indicted that useth prayers before his Sermon other than such which are required by the Book of common-Common-Prayer Clerk versus Hoskins DEbt upon a Bond for the performance of Covenants in certain Articles of Agreement in which it was recited That whereas the now Defendant had found out a Mystery in colouring Stuffs and had entred into a Partnership with the Plaintiff for the term of seven Years he did thereupon Covenant with him that he would not procure any person to obtain Letters Patents within that Term to exercise that Mystery alone The Defendant pleaded that he did not procure any person to obtain Letters Patents c. The Plaintiff replied and assigned for breach that the Defendant did within that term procure Letters Patents for another person to use this Mystery alone for a certain time Et hoc petit quod inquiratur per patriam And upon a Demurrer to the Replication these Exceptions were taken 1. That the Plaintiff hath not set forth what Term is contained in the Letters Patents 2. That he had pleaded both Record and Fact together for the procuring is the Fact and the Letters Patents are the Record and then he ought not to have concluded to the Country Prout patet per Recordum To which it was answered That the Plaintiff was a Stranger to the Term contained in the Letters Patents and therefore could not possibly shew it but if he hath assigned a full breach 't is well enough Then as to the other Exception viz. the pleading of the Letters Patents here is not matter of Record here is a plain negative and affirmative upon which the Issue is joyned and therefore ought to conclude hoc petit c. Curia There is a Covenant that the Defendant shall not procure Letters Patents to hinder the Plaintiff within the seven Years of the Partnership Now this must be the matter upon which the breach ariseth and not the Letters Patents so that it had been very improper to conclude prout patet per Recordum Iudgment for the Plaintiff Rex versus Hethersal THE Defendant was Felo de se Melius inquireddum not granted but for misdemeanor of the Jury and the Coroners Inquest found him a Lunatick and now Mr. Jones moved for a Melius inquirendum but it was denied because there was no defect in the Inquisition but the Court told him that if he could produce an Affidavit that the Iury did not go according to their Evidence or of any indirect Proceedings of the Coroner then they would grant it But it was afterwards quashed because they had omitted the year of the King Friend versus Bouchier Trin. 34 Car. 2. Rot. 920. EJectment upon the Demise of Henry Jones What words in a Will make a general Tail of certain Lands in Hampshire The Iury found this Special Verdict following Viz. That William Holms was seised in Fee of the Lands in question who by his last Will dated in the year 1633. devised it to Dorothy Hopkins for Life Remainder to her first Son and to the Heirs of the Body of such first Son c. and for default of such Issue to his Cousin W. with several Remainders over And in default of such Issue to Anne Jones and to her Heirs who was the Lessor of the Plaintiff That before the sealing and publishing of this Will he made this Memorandum Viz. Memorandum that my Will and Meaning is That Dorothy Hopkins
place as the Parish of St. James Westminster only And upon a Demurrer it was argued that this Plea was not good for it being in Abatement the Appellee ought to have pleaded over to the Murder Cro. Eliz. 694. so it was adjudged in the Case of Watts and Brain the Pleadings of which Case are at large in my Lord Coke's Entries 2. He ought to have pleaded in person and not by Attorney the Statute of Gloucester is plain in this Point Curia If the Plea is in Abatement and the Party doth not answer over to the Murder yet that doth not oust him of his Plea but the Appellant ought to have prayed Iudgment 'T is a Question whether he ought to plead over to the Felony or not for the Presidents are both ways there is no Iudgment entred Proud versus Piper THere was a Libel brought in the Spiritual Court for a Mortuary Mortuary due only by Custom 21 H. 8. c. 6. The Defendant suggests that by the Statute of H. 8. no Mortuary ought to be paid but in such places where it had been usually paid before the making of that Statute and that there was no Custom in this place to pay a Mortuary and it was thereupon moved for a Prohibition Cro. Eliz. 151. for Mortuaries are not due by Law but by particular Custom of places 'T is true 2 Inst 491. 1 Cro. 237. Seld. of Tithes 287. a Prohibition was denied in the Case of * Sid. 263. Mark and Gilbert but it was because 't was admitted that there a Mortuary was due by Custom but they differed in the person to whom it ought to be paid Curia Prohibitions have been granted and denied upon such Suggestions therefore the Defendant was ordered to take a Declaration in a Prohibition as to the Mortuary and to try the Custom at Law Lutwich versus Piggot IN Ejectment for Lands in Northumberland Lease whether made pursuant to the power in the Reservation tried at the Bar the Case was thus viz. Peter Venables was seised in Fee of the Manor of Long Witton in the said County and being so seised made a Settlement thereof by Lease and Release to the use of himself for Life without impeachment of Waste then to the Trustees for seven years to raise Portions for Daughters then to William Venables and the Heirs Male of his Body and if he dye without Issue then to Ann his Daughter for Life with Remainders over In which Settlement there was this Proviso viz. Provided that it shall be lawful for William Venables by Will or Deed to dispose of any part of the said Manor to his Wife for Life And another Proviso to this purpose viz. Provided that it shall and may be lawful to and for the said William Venables by any Deed in Writing under his Hand and Seal to Demise for 3 Lives or 21 years or under or for any time or term of years upon one two or three Lives or as Tenant in Tail in Possession may do all or any part of the said Manor Lands c. which were in Lease for the space of forty years last past The Defendants Title was a Lease for 99 years made by the said William Venables to one Mary Venables if three Lives should so long live And the Question was whether that Lease was pursuant to the power in the last Proviso It was objected that it was not for it ought to be a Lease for 21 and not 99 years determinable for three Lives But the Plaintiff was Non-Suit Rex versus Fairfax al. AN Order made at the Quarter-Sessions of Gloucester Who shall be bound to take an Apprentice in Husbandry was removed hither confirming another made by the Iustices there for placing of a poor Boy to be an Apprentice in Husbandry and it was moved that it might be quashed Mr. Pollexfen argued that the Iustices had no power given them by the Law to compel a Man to take such an Apprentice and this will depend upon the construction of such Statutes which relate to this matter The first is that of Queen Elizabeth which enacts 5 Eliz. cap. 4. Paragraph 25. that for the better advancing of Husbandry and Tillage and to the intent such who are fit to be made Apprentices to Husbandry may be bound thereunto that every person being an Housholder and having or using half a Plough Land at the least in Till age may take any to be an Apprentice above ten and under eighteen years to serve in Husbandry until the Party be of the Age of twenty one or twenty four years the said Reteiner and taking of an Apprentice to be by Indenture Now before the making of this Statute the practice of putting out poor Children was only in Cities and great Towns to particular Trades and Employments The next Statute is 43 Eliz. by which power is given to the Church-Wardens or Overseers of the Poor 48 Eliz. cap. 2. to raise weekly or otherwise by Taxation of every Inhabitant such competent Sum or Sums of Mony as they shall think fit for relief of the Poor and putting out of Children to Apprentice And then in the fifth Paragraph power is given to them by the Assent of two Iustices of Peace to bind poor Children where they shall see convenient c. which words were the foundation for the making of this Order But the construction thereof can be no otherwise than viz. Whereas before the making of this Act poor Children were bound Apprentices to Tillage now the Church-wardens may raise Mony to bind them out to Trades for if they could compel Men to take them what need was there of raising Mony to place them out This must be the natural construction of that Law 1 Jac. cap. 25. Paragraph 23. which appears yet more plain by the words of a subsequent Statute which continues that of the 43th of Eliz. with this addition that all persons to whom the Overseers of the Poor shall according to that Act bind any Children to Apprentice may take receive and keep them as Apprentices 'T is true the general practice of putting out poor Children seems to warrant this Order but this hath been occasioned upon a Mistake in Mr. Dalton 's Book Dalt 114. who Reported the Resolution of the Iudges in 1633. to be That every Man who by his calling profession or manner of living and who entertaineth and must use Servants of the like quality such must also take Apprentices By this Resolution the Iustices of Peace have been governed ever since But Iustice Twisden would often say that those were not the Resolutions of the Iudges as Reported by Mr. Dalton and therefore the Book was mistaken 2. The Order it self doth not mention that the party to whom this poor Boy was bound Apprentice did occupy any Land in Tillage for so it ought to be otherwise the Overseers of the Poor may bind him to a Merchant or to an Attorny which he called a Free