The Third PART OF Modern Reports BEING A COLLECTION Of Several SPECIAL CASES IN THE COURT OF King's-Bench In the last Years of the Reign of King Charles II. In the Reign of King James II. And in the two first Years of his present MAJESTY TOGETHER WITH The Resolutions and Judgments thereupon None of these Cases ever Printed before Indignor quicquam reprehendi non quia crassè Compositum illepidéve putetur sed quia nuper Hor. Epist 2.1 Carefully Collected by a Learned Hand LONDON Printed by the Assigns of Rich. and Edw. Atkins Esqrs for Charles Harper at the Flower de Luce over-against St. Dunstan's Church in Fleetstreet 1700. Mr Ambrose Holbech of Mollington. in the County of Warwick 1702 TO THE PROFESSORS OF THE Common Law OF ENGLAND Gentlemen ALL Human Laws are either Natural or Civil The Law of Nature which is also the Moral Law is at all times and in all places the same and so will always continue By Civil Laws I mean such as are established by Human Policy which with us are either Customs or Statutes and these have also some resemblance to Natural Laws because they are for the most part introduced by the concurrent Reason of Men and Reason is the Law of Nature Customs are made by Time and Usage and do thereby obtain the force of Laws in particular places and Nations but no otherwise than upon supposition that they were reasonable at the beginning To these may be added such Laws which are usually called Responsa Prudentum which together with Customs make a great part of our Municipal Laws And because 't is impossible that future Evils should be foreseen by the Wisdom of Mankind so as to prevent them therefore 't is very reasonable that positive Laws should be instituted by the Legislative Power which we call Statutes and those are either Commands or Prohibitions always enacted upon some present Emergencies and may be altered or repealed according as the Manners of Men change or as the Conjuncture of Affairs require for the publick Good I do not find this Nation was governed by any settled Laws from the time of William called the Conqueror till 9 H. 3. but by the irregular Power of the Norman King and of those who immediately succeeded him 'T is true he swore to preserve approbatas antiquas Leges Angliae but 't is as true that the same Force which compelled our Forefathers to submit did likewise exact their Obedience to the Customs of Normandy some of which we retain to this very day It was then a term of Reproach to be called an Englishman as if that denomination imported to be a Slave This made the lesser Barons that is the Freeholders or those which had such Lordships which are now called Court-Barons take up Arms to regain their ancient Rights and by that means they obtained a Grant of their old Laws from some of those Kings which was called Magna Charta Libertatum but living in a tumultuous Age they did never quietly enjoy those Liberties for notwithstanding that Charter many Infringements were made upon them which they continued in Arms to defend insomuch that in the Seventeenth Year of King John they delivered to that King a Schedule of their ancient Customs in Writing desiring that he would establish them by another Grant which was done accordingly But this Charter was as little observed as the former for the Norman Customs did still interfere with St. Edward's Laws and the People were miserably divided by those Innovations till Anno 9 H. 3. the Great Charter was established by Authority of Parliament From that time those ancient Laws and Customs were had again in repute they were revived by that Grant which was only declaratory of them and because a more exact Obedience and Conformity might be given to them for the future therefore did his Successor the good King Edward I. encourage the Lawyers in his time to reduce them into Order and Writing which was done accordingly about the middle of his Reign by John Breton not the Bishop of Hereford but a Judge of the King's Bench for as Mr. Selden has observed the Bishop of that Name died Anno 3 E. 1. And in that Book which is now called Breton the Statute of W. 2. is cited which was made 13 E. 1. and therefore it could not be penned by the Bishop unless he could quote a Statute which was not made till above ten years after his Death This is one of the first Systems extant of our Laws 'T is true the Book called The Mirror of Justice was written before but many Additions were made to it in this King's Reign by Andrew Horn a learned Man in that Age. There was likewise a small Tract then written by Sir Ralph Hengham Lord Chief Justice of the Common Pleas which only treats of Essoins and Defaults in Writs of Right Writs of Assize and Dower and therefore cannot be called a Body of our Laws I must admit that two such Books were written by the Lord Chief Justice Glanvil and Justice Bracton the one in the Reign of Henry the Second and the other in the time of Henry the Third but not one more of that Nature almost in the space of two hundred Years for I do not think the Book which the Lord Chancellor Fortescue wrote in the Reign of King Henry the Sixth can be properly called a System of Law It was published by him for these purposes first to obviate the design of two great Favourites the Dukes of Exeter and Suffolk who had used some endeavours to introduce the Imperial Law and therefore he shewed the Excellency of the Common Law above that and in the next place it was intended to soften the warlike Temper of the young Prince Edward by inclining him to the Study of those Laws by which he was to govern his People and to instruct him in some Occurrences therein The Abridgment by Baron Statham and the year-Year-Books are for the most part made up with Cases then depending in the several Courts at Westminster and with the Opinions and Resolutions of Judges which I rather call Responsa Prudentum than Systems of Law The next Attempt in that kind was made by Justice Littleton in the Seventh Year of Edward the Fourth who hath taught succeeding Ages with great Judgment and Learning in his Profession but 't is now two hundred and thirty Years since he wrote and many alterations have been made in the Law since his time I only mention these things to shew the necessity of new Books and that the old Volumes are not so useful now as formerly because many of the great Titles of which they were composed are now quite disused they are mentioned by my Lord Hales in his Preface to the Lord Chief Justice Roll's Abridgment which I shall not repeat and those very Titles make the greatest part of Justice Littleton's Tenures But amongst all the Old Tenures and Customs I admire that of Burrough English should still
for to such the Defendant Preached and to them he declared the power given unto him by God to heal them by Prayer Then he tells them that their King is wicked and having insinuated this Doctrine into their Minds he then bids them stand to their Principles in opposing and subduing wicked Kings 'T is objected that there ought to have been a precedent Discourse of the King but the Presidents are otherwise In 33 H. 8. Rot. 17. There was an Indictment against the Lord Grey for words spoken against the King without setting forth any precedent Discourse of him So was my Lord Cobham 's Case in 12 Jac. for that he proditorie dixit pro palavit haec verba viz. It will never be well for England until the King and his Cubbs are killed without an Avernient that the words were spoken de Rege And in William 's Case 2 Roll Rep. 88. Reported by my Lord Rolls who was Indicted for High Treason for writing two Books in which were many Traiterous Assertions but no Averment of any previous Discourse concerning the King all these Indictments were thus viz. Dixit such words de Domino Rege Therefore the Indictment is good in form if the words therein contained amount to Treason now they do import Treason or not if they do import it then 't is unnecessary to aver that they were spoken de Rege because it cannot be intended to be Treason against any other King If a Man should say that he would go to Whitehal and kill the King 't is not necessary to averr any precedent Discourse de Rege In Actions on the Case for Words there must be an Averment of the person because many men are of the same Name but in Indictments the form will govern the Case Several Traitors have suffered Death in such Cases as this at Bar and many learned Men in all Ages have attended this Court and this Objection was never made till now and therefore the Presidents being without this Averment de Rege where the overt Act is by words Iudgment was prayed against the Prisoner Curia Words may be an overt Act but then they must be so certain and positive as plainly to denote the intention of the speaker If a Man should tell another that he would drive the King out of England there needs no averment that such words were spoken de Rege because they tend immediately to depose the King but if he had said that he would go to Whitehal and destroy his Enemies that is not Treason without an Averment c. Iudgment was arrested DE Term. Sancti Hill Anno 36 Car. II. in Banco Regis 1684. Pool versus Trumbal THE Defendant was sued in the Spiritual Court for Dilapidations 25 Car. 2. cap. 5. and pleaded the general Pardon by which all Offences Contempts Penalties c. were pardoned and for this reason he prayed a Prohibition but it was denied because the Statute never intended to pardon any satisfaction for Damages but only to take away Temporal Punishments Dorrington versus Edwin Mich. 36 Car. II. Rot. 277. SCire Facias against Pledges in a Replevin brought by Pleint Sci. Fac. will lye against pledges in Replevin by pleint setting forth that John Temple did levy a Pleint in the Sheriffs Court of London for the taking of three Baggs of Mony in which Suit he found Pledges de prosequendo de retorno habendo if it should be awarded That this Pleint was transmitted out of that Court into the Hustings and by * If it had not been a Court of Record it might have been remov'd by Re falo Dalt 425. 9 Hob. 6.58 13 Ed. 1. cap. 2. F. N. B. 74. F. Dalt 273. Certiorari removed into the Kings-Bench where the Plaintiff declared as aforesaid c. Dorrington avowed the taking c. and Temple was Non-suited and thereupon a Retorn ' Habend ' was awarded to the Sheriff who returned elongat ' c. Then a Sci. Fa. was brought against the Pledges upon the Statute of Westm 2. which provides that where Lords upon Replevins cannot obtain Justice in Inferiour Courts against their Tenants when such Lords are attached at their Tenants Suits they may have a Recordari to remove the Plea before the Justices c. and the Sheriff shall not only take Pledges of the Plaintiff to prosecute his Suit but also to return the Cattle if a Return be awarded c. The Defendants appeared and prayed Oyer of the Certiorari which was returned by the Mayor and Sheriffs only without the Aldermen And upon a Demurrer the Question was Whether a Scire Facias will lie against them by virtue of this Statute they being only Pledges in Replevin brought by Pleint without Writ This Case was argued by Mr. Pollexfen for the Defendants And for the Defendants it was said that they could not be charged by this Scire Facias because the Pleint was removed by Certiorari and thereby the Plaintiff Dorrington had lost the benefit he had against the Pledges in the Sheriffs Court This Case was compared to other Actions in inferior Courts which if removed by Habeas Corpus the Bail below are discharged of course By the Common Law there were no Pledges of Retorn ' habend Dyer 246. for before this Statute the Sheriff could not make a Replevin without the King 's Writ Now he hath power to take Pledges but if he will make deliverance of the Goods ad querelam alicujus sine brevi the fault is still in him for he may * Dalt 434. compel the Party to bring a Writ and then the Pledges will be liable because it will appear who they are And therefore it hath been adjudged Cro. Car. 446. that where a Replevin is brought by Writ the Sheriff cannot make deliverance without taking Pledges because if the Plaintiff should recover he hath a remedy against them by Scire Facias but if he recover upon a Replevin brought by Pleint Cro. Car. 594. the Iudgment shall not be avoided by assigning the want of Pledges for Error because in such Case the Sheriff is not by Law obliged to take Pledges 2. This Scire Facias is brought too soon for there ought to go an Alias Pluries Retorn ' habend before the Return of Elongata and then and not before the Scire Facias is properly brought The Pledges are answerable E contra and the Scire Facias is well brought and this grounded upon the Statute of W. 2. which directs Pledges to be taken before the delivery of the Goods It takes notice that Replevins were sued in inferior Courts by the Tenants against their Lords who had distrained for Rents due for Services or Customs and that such Lords could not have Iustice done in those Courts and therefore to remedy this mischief the Statute gives the Writ Recordare c. to remove the Pleint before the Iustices and because such Tenants after they had replevied their Cattle did usually
it because the words were an entire Sentence and spoken altogether at the same time and therefore if a Prohibition should not go it would be a double vexation DE Termino Paschae Anno 1 Jac. II. in Banco Regis 1685. Earl of Yarmouth versus Darrel THE Plaintiff brought an Action on the Case Grant of the King of sole Printing not good setting forth Letters Patents of King Charles the II. by which the Sole Printing of Blank Writs Bonds and Indentures were granted to him excepting such Forms which belonged to the Custom-House and which were formerly granted to Sir Roger L'Estrange that this Grant was to continue for the space of 30 Years and that the Defendant had notice thereof and had printed 500 Blank Bonds which he laid to his damage of the sum of 40 l. Vpon Not Guilty pleaded the Iury found a special Verdict the substance of which was that the Defendant was a Stationer and that the Company of Stationers for the space of 40 years last past before the granting of these Letters Patents had constantly printed Blank Bonds and so made a general conclusion Mr. Trindar argued for the Plaintiff and the only Question was Whether this Patent did vest a sole Interest in the Plaintiff exclusive to all others In his Argument he insisted on these Points 1. That the King hath a Prerogative in Printing and may grant it Exclusive to others 2. That this Prerogative extends to the Case at the Bar. That he hath such a Prerogative 't is confirm'd by constant Vsage for such Grants have been made by the Kings of England ever since Printing was invented But to instance in a few Viz. The Patent for Printing of law-Law-Books was granted to one More on the 19th day of January in the 15th year of King James the I. And when that Patent was expired another was granted to Atkyns and others on the 15th day of November in the 12th year of King Charles the II. In 23. Eliz. a Patent was granted to the Company of Stationers for the sole Printing of psalm-Psalm-Books and Psalters for the space of 30 years And on the 8th of August 31 Eliz. the like Patent was granted to Christopher Barker for Life Another Patent to the Company of Stationers for printing of Corderius c. These and many more of the like nature shew what the constant usage hath been Now the Statute of Monopolies doth not reach to this Case because of the Proviso therein to exempt all such Grants of sole Printing and by the Statute of King Charles the II. for regulating of the Press 14 Car. 2. cap. 33. 't is Enacted That no person shall Print any Copy which any other hath or shall be granted to him by Letters Patents and whereof he hath the sole Right and Priviledge to Print And upon the breaches of these Statutes several Iudgments have been given Between Streater and Roper in this Court Mich. 24 Car. 2. Rot. 237. 't is true the Iudgment was against the Plaintiff but upon a Writ of Error brought in Parliament that Iudgment was reversed The same Term there was a Iudgment given upon a special Verdict in the Common-Pleas for the Plaintiffs Hill 35 Car. 2. B. R. Rot. 99. who were the Company of Stationers against Seymour for Printing of Almanacks And they obtained the like Iudgment against Wright for Printing of Psalters and Psalm-Books Now to apply this to the principal Case 't is to be considered that these Books for which the sole Printing was so claimed were of a publick nature and importance relating to the good and benefit of the Subjects and so likewise are Blank Bonds for there may be false and vitious Impressions to the ruin and destruction of many innocent people And as a farther Argument that the King hath this Prerogative 't is likewise to be considered that where no individual person can claim a Property in a thing there the King hath a Right vested in him by Law and it cannot be pretended that any particular person hath a Right to Print those Bonds therefore the finding that such were printed by the Company for above 40 years is immaterial because there being an inherent Prerogative in the King whenever he exerts it all other persons are bound up who were at liberty before To prove which the Iudgment in the Case of the East-India Company is express in point for before that Patent the subject had liberty to Trade to those places prohibited by that Grant but afterwards they were restrained by that Grant Neither is this in the nature of a Monopoly 11 Co. 84. 't is not like that of the sole Grant of making Cards which hath been adjudged void and with great reason because that Grant reached to prohibit a whole Trade and therefore differs from this Case for the Defendant may print other Instruments or Books and exercise his Trade in some other lawful and profitable Commodities and so might the Merchants in the Case of the East-India Company for they were restrained by the Patent as to particular places but might Trade to any other part of the World Neither will the Subjects in general receive any prejudice by this or such like Grants for if the Patentees make ill use of their Priviledges tho' it cannot be properly called an Office yet 't is a Trust and a Scire Facias will lie to repeal their Grants It was argued by the Councel for the Defendant E contra That the Verdict having found that the Company of Stationers had used to print those Bonds for above 40 years before the making of this Grant the Question will be Whether they are now divested of a Right so long enjoyed And as to that 't is not a new thing to object That notwithstanding such Grants yet other persons have insisted on a Right to Print and have printed accordingly Thus the sole Printing of Law-Books was granted to one Atkyns yet the Reports of Iustice Jones and my Lord Chief Iustice Vaughan were printed without the direction of the Patentees Printing as 't is a manual Occupation makes no alteration in this Case for the King hath as great a Prerogative in Writing any thing that is of a publick Nature as he hath in Printing of it Now considering Printing as an Art exclusive from the thing printed this Patent is not good For if a Man invent a new Art and another should learn it before the Inventor can obtain a Patent if afterwards granted 't is void Then consider it in relation to the thing printed 1 Roll. 4. 11 Co. 53. id which in this Case are Blank-Bonds 't is not a new Invention because the Company of Stationers have printed such above 40 years and for that reason this Patent is void for where the Invention is not New there Trade shall not be restrained No Man can receive any prejudice by the printing of such Bonds for they are of no Vse till filled up 't is only a bare Manufacture
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-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-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-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-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
upon the Estate which Affidavit was produced in Court but not suffered to be read but as a Note or Letter unless the Plaintiff would produce a Witness to swear that he was present when the Oath was taken before the Master And an Objection was made to the Settlement it self which recited That whereas a Marriage was intended to be had between the said Edmund Goodier and Elizabeth Mees now in consideration thereof and of a Portion he conveyed the said Mannor to the Feoffees to the use of himself for life and after his decease to the use of the said Elizabeth for life but doth not say from and after the Solemnization of the said Marriage so that if she had not married Mr. Goodier yet after his decease she would have enjoyed the Estate for life Vpon the whole matter the Iury found for the Defendant Dominus Rex versus Coney and Obrian THE Defendants were convicted for the Murder of Mr. Murder was pardoned by the name Felonica interfectio and held good 10 E. 3. c. 3. 13 R. 2. c. 1. Tyrrwhite and Mr. Forster in a Duel and now pleaded their Pardon in which there was a Clause Non obstante the Statute of Ed. 3. which appoints him that hath a Pardon of Felony to find Sureties for his Good Behaviour before it shall be allowed and another Non obstante to the Statute of R. 2. which enacts that if the Offence be not specified in the Pardon it shall not be allowed Now the Word Murdrum was not in this Pardon the Offence was expressed by these general Words Felonica interfectione and whether it did extend to pardon Murder was the Question Mr. Astry the Clerk of the Crown informed the Court that one Alexander Montgomery of Eglington pleaded the like Pardon for Murder but it was held insufficient and the Court gave him time to get his Pardon amended which was done likewise in this Case The Defendants came again on another day and Councel being allowed to plead for them insisted that the Pardon was good and that the Murder was sufficiently pardoned by these Words that it is in the power of the King to pardon by general Words and his intent did plainly appear to pardon the Defendants That the murther of a person is rightly expressed by felonious killing though not so properly as by the word Murdrum it self the omission of which word will not make the Pardon void And to prove this he cited the Sheriff of Norfolk's Case 2 R. 3. 7. a. who was indebted to the King during the time he was Sheriff and was pardoned by the Name of J. W. Esquire who was the same person de omnibus debitis computis c. Afterwards he was charged in the Exchequer for 100 l. where he pleaded this Pardon and it was held good though he was not named Sheriff and so not pardoned by the name of his Office yet the Kings intention appearing in his Charter and having pardoned him by his right Name that was sufficient and in that Case the King himself was concerned in point of interest The Books all agree More 752. Lucas's Case 8 Co. 18. 3 Inst 234. that before the Statute of R. 2. the King might pardon Murder by the word Felony now this Prerogative being incident to the Crown and inseparable from the person of the King was not designed to be wholly restrained by that Act for the Parliament only intended that by specifying the Offence in the Pardon the King should be rightly informed of the nature of it and when he understands it to be Murder he would not grant a Pardon But admitting his power to be restrained by that Statute Stamf. 101. yet a Non obstante is a dispensation of it and therefore this Pardon ought to be allowed The Pardon was held good by the whole Court And Jefferies the Chief Justice said that he had proposed this Case to all the Judges of England Sid. 366. and they were all of the same Opinion and that he remembred Dudley's Case where a Pardon in general words was allowed DE Term. Sancti Hill Anno 35 Car. II. in Banco Regis 1683 4. Brason versus Dean A Covenant upon a Charter Party for the Freight of a Ship A thing lawful to be done when the party did covenant to do it and afterwards prohibited the Covenant is binding The Defendant pleaded that the Ship was loaded with French Goods prohibited by Law to be imported and upon Demurrer Judgment was given for the Plaintiff for the Court were all of Opinion That if the thing to be done was lawful at the time when the Defendant did enter into the Covenant though it was afterwards prohibited by Act of Parliament yet the Covenant is binding Barnes versus Edgard TRespass for breaking his Close and impounding of his Cattle Where Damages are under 40 s. the Plaintiff must have ordinary Costs Vpon Not Guilty pleaded the Plaintiff had a Verdict but Damages under 40 s. Whereupon Mr. Livesay the Secondary refused to tar full Costs alledging it to be within the Statute of 22 23 Car. 2. by which 't is Enacted 22 23 Car. 2. cap. 9. That in all Actions of Trespass Assault and Battery and other personal Actions wherein the Judge shall not certifie upon the back of the Record that a Battery was proved or the Freehold or Title of the Land chiefly in question if the Jury find the Damages under 40 s. the Plaintiff shall recover no more Costs than Damages Mr. Pollexfen moved for Costs alledging that this Act doth not extend to all trespasses but only to such where the Freehold of the Land is in question If the Action had been for a Trespass in breaking his Close and Damages given under 40 s. there might not have been full Costs but here is another Count for impounding the Cattle of which the Defendant is found guilty and therefore must have his Costs The like Case was adjudged in this Court in Hillary Term last Smith versus Batterton Raym. 487. Jones 232. which was Trespass for breaking and flinging down Stalls in the Market place The Plaintiff had a Verdict and 2 d. damages and upon a debate whether he should have full Costs the Court were of Opinion that it was not within that Statute because the Title could not come in question upon the destruction of a Chattle In the principal Case the Plaintiff had ordinary Costs DE Termino Paschae Anno 36 Car. II. in Banco Regis 1684. Marsh versus Cutler THE Plaintiff obtained a Iudgment in an Hundred Court for 58 s. and 4 d. If Debt be brought upon a Specialty for part of the Sum the Plaintiff must shew how the other is discharged 2 Cro. 498 499 529 530. and brought an Action of Debt upon that Iudgment in this Court for 58 s. only and did not shew that the 4 d. was discharged and upon Nultiel Record pleaded and a Demurrer to that Plea the
Sir Edward Herbert who was removed into the Common Pleas and made Chief Justice there and Sir Francis Wythens had his Quietus the Night before The same 21st day of April after this Removal the Souldier was brought again to the Barr and upon the Motion of Mr. Attorny was ordered by the new Chief Iustice to be executed at Plymouth which was done accordingly Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Monday May 2d NOTA. A Writ of Error was brought upon a Iudgment given in this Court returnable in Parliament which was Prorogued from the 28th day of April to the 22d day of November following Sir George Treby moved that it might be discharged for it could not be a Supersedeas to this Execution because there was a whole Term which intervened between the Teste and Return of the Writ of Error viz. Trinity-Term On the other side it was said that the Proclamation was no Record it only shews the present Intention of the King which he may recal at any time But the Court made no Rule DE Term. Sanct. Trin. Anno 2 Jac. II. in Banco Regis 1686. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Sawyer Attorny General Powis Sollicitor General The Company of Merchant Adventurers versus Rebow IN a special Action on the Case Whether the King hath a Prerogative to restrain Trade to a particular number of Men. the Plaintiffs declared that in the Reign of H. 4. there was a Society of Merchants Adventurers in England and that afterwards Queen Elizabeth did by her Letters Patents incorporate them by the Name of the Governour and Company of the Merchants Adventurers c. and gave them Priviledge to trade into Holland Zealand Flanders Brabant the Country belonging to the Duke of Lunenburgh and Hamburgh prohibiting all others not free of that Company by virtue whereof they did trade into those parts and had thereby great Priviledges and Advantages that the Defendant not being free of the said Company did trade into those Parts without their authority and imported Goods from thence into this Kingdom ad damnum c. The Defendant pleaded as to Hamburgh Not-guilty 15 E. 3. c. 3. and as to the other places he pleaded the Statute of Ed. 3. That the Seas shall be open to all Merchants to pass with their Merchandize whither they please The Plaintiff demurred and the Defendant joined in Demurrer This Case was now argued by Councel on both sides The Councel for the Plaintiff in their Arguments made these Points 1. What Power the King had by his Prerogative to restrain his Subjects from trading to particular places 2. Admitting he had such a Prerogative whether an Action on the Case will lie As to the first Point it was said Magna Charta cap. 30. 2 Inst 57. that all Trades must be under some Regulation and that the Subject hath not an absolute power to trade without the leave of the King for it is said in our Books Omnes Mercatores nisi publice prohibiti fuerint habeant salvum securum conductum which is meant of Merchant Strangers in Amity with us and nisi publice prohibiti must be by the King Now if Merchants Strangers may be prohibited from coming into England by the same reason the Kings Subjects may be restrained to go out of the Kingdom and for that purpose the Writ of Ne exeat Regnum was framed F. N. B. 85. 3 Inst 179. which is grounded upon the Common Law and not given by any particular Statute The Kings Prerogative in this and such like Cases is so much favoured by Law 1 Leon. 9. More 172. that he may by his Privy Seal command any of his Subjects to return out of a Foreign Nation or seize their Lands The first Statute which regulates Trade is 27 E. 3. cap. 1. that which confined the Staple to certain places that persons might not go about in Companies to trade without the King's Licence and from thence came Markets and if such were kept without the King 's Grant a Quo Warranto would lie against them who continued it and the People who frequented those Markets were punishable by Fine The Law is plain F. N. B. 125. 2 Roll. Abr. 140. that the King is sole Iudge of the place where Markets shall be kept for if he grant one to be kept in such a place which may not be convenient for the Country yet the Subjects can go to no other and if they do the Owner of the Soil where they meet is liable to an Action at the Suit of the Grantee of the Market A Custom to restrain a Man from the exercising of his Trade in a particular place hath been adjudged good Sir G. Farmer 's Case cired in 8 Co. 127. as to have a Bake-house in such a Mannor and that no other should use that Trade there And as a Man may be restrained by Custom so he may restrain himself from using of a Trade in a certain place 2 Cro. Brown versus Joliffe as if he promise upon a valuable consideration not to use the Trade of a Mercer in such a place And 't is very necessary that Trade should in some measure be restrained so as to be managed only by Freemen because 't is of more advantage to the King that it should be carried on by a Company especially in London who may manage it with Order and Government that is by some power to restrain particular persons from that Liberty which otherwise they would use and therefore such Companies have always power to make By Laws to regulate Trade which is the cheif End of their Incorporation And if such Corporations have power to judge and determine who are fit persons to exercise Trades within their Iurisdiction the King hath certainly a greater Prerogative to determine which of his Subjects are fit to trade to particular places exclusive from the Rest That the Governors of Corporations have taken upon them such Authority appears in Townsend's Case Sid. 107. who served an Apprentiship to a Taylor in Oxford and was refused by the Mayor to be made a Freeman of that City which shews that if a person be not qualified he may be excluded This is a very ancient Company for Cloth was first brought into this Realm in the Reign of Ed. 3. and was always under some Government My Lord Rolls quoting the Parliament Roll of H. 1 H. 5. no. 41. 2 Abr. Roll. 174. placit 39. 5. wherein the Commons pray that all Merchants might import or export their Goods to any place except such as were of the Staple paying the Customs takes notice that this Prayer was made against the Companies which prohibited such Trading This shews that even in those days Trade was under a Regulation King Ed. 34 E. 3. c. 18. 38 E. 3. c. 11. 3. gave Licence to all Merchants Denizens who were not Artificers to go into Gascoigne for Wines
the Fine and Non-claim the Substance of which was That Robert Basket was seized in Fee of the Lands in Question who by Will devised it to Philip Basket and others for 99 years with power to grant Estates for the payment hf the Debts and Legacies of the Testator the Remainder in Tail to John Basket his Brother but that if he gave Security to pay the said Debts and Legacies or should pay the same within a time limited that then the Trustees should assign the Term to him c. John Basket entred after the death of his Brother with the assent of the said Trustees and received the Profits and paid all the Legacies and all the Debts but 18 l. The Iury find that John had Issue a Daughter only by his first Wife after whose death he married another Woman and levied a Fine and made a Settlement in consideration of that Marriage upon himself for Life and upon his Wife for Life with divers Remainders over that he died without Issue by his second Wife who entred and five years were past without any claim c. And now the Heir at Law in the name of the Trustees brought this Action The Questions were 1. Whether the Term for 99 years thus devised to the Trustees was bound by this Fine and Nonclaim or not 2. Whether it was divested and turned to a Right at the time of the Fine levied For if it was not then the Fine could not operate upon it It was agreed that as a Disseisin is to a Freehold so is a divesting to a Term and that a Fine and Non-claim is no Barr but where the Party at the time of the levying thereof had a Will to enter and when the Estate of which 't is levyed is turned to a Right That in the Case at the Barr the Entry of John Basket was tortious because the legal Estate was still in the Trustees But if he had gained any Right by his Entry 't is only a Tenancy at Will to them for they took notice of the Devise and he entred by their consent and such a Right is not assignable and then a Fine levyed is no Barr. To prove this 9 Co. 106. Margaret Prodger's Case was cited where the the Lord granted a Copyhold to John Elizabeth and Mary for their Lives and afterwards by Deed enrolled sold the Land to John in Fee and levyed a Fine to him and his Heirs c. and five years passed without any Claim John dyed his Son entred and levyed another Fine to Trustees to the use of himself and Margaret his Wife for Life the Remainder to his own right Heirs the Son died and his Wife survived who having a Freehold for Life distrained and the Husband of Elizabeth brought a Replevin It was adjudged that this Fine and Nonclaim did not barr those in Remainder becase the Bargain and Sale to John did not divest their Estate and turn it to a Right for the Lord did what he might do and John accepted what he might lawfully take who being in possession by virtue of a particular Estate for Life could not by this acceptance divest the Estate of her who had the Freehold and the Fine and Nonclaim could not do it for to what purpose should he make any Claim when he was in actual possession of the thing to be demanded And he who is so in possession need not make any Claim either to avoid a Fine or a collateral Warranty Now though at the Common Law there must be Livery and Seisin to create an Estate of Freehold 3 Co. Fermer 's Case yet any thing is sufficient to make an Estate at Will in which neither the Inheritance or the Title of the Land is concerned and therefore a Fine levyed by such a Tenant is no Barr. 'T is true Sid. 458. Freeman versus Barns if a Lease be made for an hundred years in Trust to attend the Inheritance and Cestuy que Trust continues in possession and devises to another for fifty years and levies a Fine and the five years pass without Claim he being still in possession after the first Lease made is thereby become Tenant at Will and by making the second Lease the other is divested and turned to a Right though he was not a Disseisor and so 't is barred by the Fine because the Cestuy que Trust of the term of one hundred years was also Owner of the Inheritance But in the Case at the Barr John shall not be a Disseisor but at the Election of the Trustees of the Term of 99 years to prove which there are many Authorities in the Books As if Tenant at Will make a Lease for years and the Lessee enters Latch 53. 1 Leon. 121. Lit. Sect. 588. 't is not a Disseisin but at the Election of him who hath the Freehold and even in such Case if the Tenant of the Freehold should make a Grant of the Land 't is good though not made upon the Land it self for he shall not be taken to be out of possession but at his own Election 'T is like the common Case of a Mortgagee for years where the Mortgagor continues in possession twenty years afterwards and pays the Interest and in that time hath made Leases and levyed a Fine this shall not barr the Mortgagee for the Mortgagor is but Tenant at Will to him The Trustees need not make any claim in this Case because there was no transmutation of the possession so they could take no notice of the Fine 'T is true John Basket entred by their consent but still as Tenant at Will to them and the Acts done by him after his Entry will not didest this Term for though he made a Bargain and Sale of the Lands yet nothing will pass thereby but what of right ought to pass He likewise demised the Lands to Vndertenants for years but 't is not found that they entred but admitting they did enter yet that could not displace this Term for these Tenants claimed no more than for one or two years and made no pretence to the whole Term. But if by either of these Acts the Term should be divested yet still it must be at the election of those who have the Interest in it Dyer 61 62 173. The Case of * Cro. Car. 302. 1 Rol. Abr. 661. Blunden and Baugh which is grounded upon Littleton's Text Sect. 588. is an Authority to this purpose which was The Father was Tenant in Tail and his Son was Tenant at Will who made a Lease for years then both Father and Son join in a Fine to the use of the Son for Life and to Elizabeth his Wife for Life the Remainder to the Heirs Males of the Body of the Son who died without Issue Male the Lessee being in possession made a Conveyance of the Estate by Bargain and Sale to Charles Lord Effingham who was Son and Heir of the Tenant in Tail who made a Lease to the Plaintiff who was ousted by the
first Son of the Body of the said Simon Leach my Brother lawfully to be begotten and to the Heirs Males of the Body of such first Son lawfully to be begotten with like Remainder in Tail Male to the second third fourth c. Sons and for default of such Issue to Sir Simon Leach my Kinsman being Son and Heir of Simon Leach of Cadley in the County of Devon ' Esquire deceased and to the Heirs Males of his Body lawfully to be begotten and for default of such Issue to the right Heirs of me the said Nicholas Leach for ever They find that Nicholas Leach died without Issue that Simon Leach his Brother and Heir with Remainder over in Contingency as aforesaid entered and afterwards married Anne the Daughter of Unton Croke and that after the said Marriage viz. 20 August 25 Car. 2. he executed a Deed purporting a * Two months before a Son was born Surrender of the said Lands and Tenements to Sir Simon Leach in manner following viz. To all Christian People c. I Simon Leach of Elsefield in the County of Oxon Esquire send greeting Know ye that I the said Simon Leach for divers good Causes and valuable Considerations me hereunto moving have granted surrendred remised released and for ever quit claimed and confirmed and by these Presents do grant surrender remise release and for ever quit claim and confirm unto Sir Simon Leach of Cadley in the County of Devon Knight of the Bath and his Heirs and Assigns for ever all and every the Mannors c. To have and to hold the same to the said Sir Simon Leach for ever They find that Simon Leach Brother of the Testator was not compos mentis at the time of the sealing and delivery of the said Surrender That on the 10th day of November 25 Car. 2. which was two Months after this Surrender made the said Simon Leach had Issue of his Body Charles Leach who is his Son and Heir that he after the death of his Father entred and made a Lease to Tompson by vertue whereof he was possessed until the Defendant Sir Simon Leach entred upon him c. Two Questions were made upon this Special Verdict 1. Whether this Surrender by a person Non compos mentis was void ab initio and so could pass no Estate to the Surrendree for if so then though the Ideot himself is estopped by his own Act yet that can be no Barr to him in the Remainder because the Act being void the Estate in Law still remains in him 2. If it is not void in its self then whether it is voidable after the death of the Party by Charles Leach he claiming by virtue of a collateral Remainder and not as Heir at Law to the Devisor As to the first Point it was argued that the Cases of Lunaticks and Infants go hand in hand and that the same Reasons govern both that the Law is clear that a Surrender made by an Infant is void therefore a Surrender made by a person Non compos mentis is also void Fleta lib. 1. c. 11. num 10. the reason is because they know not how to govern themselves And as Fleta saith Semper judicabuntur infra aetatem F.N.B. 202. a. Regist 238. b. if he makes any Conveyance of his Land the Law hath provided a remedial Writ even for himself to avoid his own Alienation His Feoffments are void 39 H. 6.42 Bract. fol. 12. no. 5. fol. 100 120. Brit. cap. 34. fol. 88. Perk. 5. pl. 21. and if Warranties are annexed those they are also void if he granteth a Rent-Charge out of his Land that is likewise void and if the Grantee should distrain for this Rent after the death of the Grantor his Heir shall have an Action of Trespas against him and therefore by parity of Reason this Surrender must be void In Fitzherbert Tit. Grantee pl. 80. there is a Case to this purpose viz. An Assize was brought against the Tenant supposing that he had no right of Entry unless under a Disseisor by whom the Brother of the Demandant was disseised The Tenant pleaded that the supposed Disseisor was the Father of the Demandant whose Heir he then was and that his said Father made a Feoffment of the Land to the Tenant with Warranty and demanded Iudgment c. The Demandant replied that his Father at that time was Non compos mentis and the Tenant was compelled to rejoin and take Issue upon the Insanity which shews that if he was Non compos he could not have made such a Feoffment So if he maketh a Feoffment in Fee and afterwards taketh back an Estate for Life Fitz. Remitter pl. 23. the Non compos shall be remitted to his ancient Title which shews likewise that such Feoffment was void for the Remitter supposeth a former Right 'T is incongruous to say that Acts done by persons of no discretion shall be good and valid in the Law such are Infants and Lunaticks and it stands with great reason that what they do should be void especially when it goes to the destruction of their Estates Therefore 't is held that if a person Non compos releaseth his right that shall not barr the King in his Life time but he shall seize the Land and if he die his Heir may bring the Writ Dum non fuit compos mentis and may enter 'T is for this reason that a Release made by an Infant Executor is no barr because it works in destruction of his Interest 5 Co. 27. Russel 's Case 34 Ass pl. 10. the reason is the same where a person Non compos maketh a Feoffment for that likewise destroys his Estate So likewise an Infant can neither surrender a future Interest by his acceptance of a new Lease Cro. Car. 502. nor make an absolute Surrender of a Term of which he is possessed for such a Surrender by Deed is void 'T is agreed that if a Man Non compos maketh a Feoffment by Letter of Attorny 't is meerly void because 't is not delivered to the Feoffee by the hands of the Feoffor but 't is said that if it be delivered by him in person then 't is only voidable at any time by Action or Entry Finch 's Law 102. And of this Opinion was Sir Henry Finch in his Discourse of the Law who in the Margen of his Book quotes several Authorities in the Year Books to justifie this Opinion and amongst the rest he cites Sir Anthony Fitzherberts Natura Brevium 35 Ass pl. 10. who taking notice of the old Authorities seems to reject their Reasons who affirm a person Non compos shall not avoid his own Act when he recovers his memory because he cannot then tell what he did when he was in his former Condition But certainly when he recovers his Iudgment he is then of Ability to consider what was done during his Insanity and to avoid such Acts by shewing how his indisposition came by the