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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A64839	The reports of Sir Peyton Ventris Kt., late one of the justices of the Common-pleas in two parts : the first part containing select cases adjudged in the Kings-Bench, in the reign of K. Charles II, with three learned arguments, one in the Kings-Bench, by Sir Francis North, when Attorney General, and two in the Exchequer by Sir Matthew Hale, when Lord Chief Baron : with two tables, one of the cases, and the other of the principal matters : the second part containing choice cases adjudged in the Common-pleas, in the reigns of K. Charles II and K. James II and in the three first years of the reign of His now Majesty K. William and the late Q. Mary, while he was a judge in the said court, with the pleadings to the same : also several cases and pleadings thereupon in the Exchequer-Chamber upon writs of error from the Kings-Bench : together with many remarkable and curious cases in the Court of Chancery : whereto are added three exact tables, one of the cases, the other of the principal matters, and the third of the pleadings : with the allowance and approbation of the Lord Keeper an all the judges.	Ventris, Peyton, Sir, 1645-1691.; Guilford, Francis North, Baron, 1637-1685.; Hale, Matthew, Sir, 1609-1676.; England and Wales. Court of King's Bench.; England and Wales. Court of Common Pleas.	1696 (1696)	Wing V235; ESTC R7440	737,128	910

if the Heirs satisfied the Office of their Title without pleading as where Conusans of Pleas have been once allowed it is sufficient in another Action to shew the former Roll where it was alallowed Note An Indictment for a Nusans in the High-way The Court will not quash this Indictment upon Motion unless certified that the Nusans is removed But they will Reverse it upon a Writ of Error if their be Error in it without any such Certificate Iles Case A Mandamus was prayed to the Churchwardens of the Parish of Kinsmere in Hampton to restore John Iles to the place of Sexton there and it was granted And so the Court said hath béen for a Parish Clark Churchwardens a Scavenger But it was denied to one who pretended to be Master of the Lord Mayors Waterhouse for that they said was not an Office but a Service Anonymus A Fine was levied of Lands in Blandford Forum Resolved That this should not pass Lands in a Hamlet of that Town there being Constables distinct in Blandford Forum from others that were in the Hamlet so that they were as two Vills But if a Fine be levied of Lands in a Parish it shall extend to all the Vills within the Parish The Lord Hawley's Case A Mandamus was granted to restore him to the Recordership of Bath The Corporation returned That they were Incorporated by Letters Patents of Queen Elizabeth which empowered them to chuse probum discretum hominem in legibus Angliae peritum to be their Recorder and to hold a Court twice every Week before the Mayor Alderman and Recorder or any two of them whereof the Mayor to be one That the 1st of August 15 of this King he was made Recorder by the Committee upon the Act of this King for regulating of Corporations and that he continued in the Office Secundum locationem illam until the 25 of December 21 of the King and that from the 1 of August 15 of the King to August 21 he absented himself by the space of five years without any reasonable Cause and that he is nullo modo peritus in lege and that at a Court August the 21 they summoned him to appear some days before and he not coming they amoved him from his Office the 30 day of the said August After this Return filed it was moved First That it was repugnant for they returned That the Lord Hawley continued in his Office until the 25 of December 21 of the King and after that they amoved him in August 21 of the King To which it was answered That in regard upon the whole return it appears that he was amoved though it be said he continued after that is not material but surplusage As where a Jury gives a general Verdict and yet discloses special matter disagreeing to it the Court judges according to the special matter or else they might mean that though he were turned out yet he did continue exercising it de facto And the Court were of Opinion that the contradiction in the Return was not material For Hale said If it shall be taken that he is yet in then there is no need of a Mandamus Again it was said That the matter of absence was not sufficiently returned for it appears by the Charter that the presence of the Recorder is not necessary to the holding of the Court for it is to be held before the Mayor Aldermen and Recorder or any two of them whereof the Mayor to be one then they have not returned that they held a Court in all that time neither have they returned that any mischief or inconvenience happned to them by his absence A Park-keeper shall not forfeit his Office for Non-attendance unless a Deer be killed or the like in his absence Also it is returned from the 1 of Aug. 15. Car. to the 1 of Aug. 21. he absented himself for five years and he might be out of Town five years in six years time and yet be there every Court day And for the other cause of removal that he was not peritus in lege It was said That the Corporation being Laymen could not return a thing whereof they were not Judges That the Return was too general nullo modus peritus but ought to have set forth some special Fact whereby it might appear to the Court. Also They could not remove him for a Cause which they could not examin he was put in by Commissioners authorised by Act of Parliament which it was said did capacitate implicitely him at least their Act supplied the Election of the Town which if it had been would have dispensed with his disability And the Case of Bernardiston Recorder of Colchester was much relied upon who in 1655 brought a Mandamus to be restored to his Office And it was returned That he was not learned in the Law and that one being indicted before him upon the Statute of 1 Jac. of having two Wives and convicted he denied him Clergy and also they returned That he absented himself for nine Months and notwithstanding by the Iudgment of the Court he was restored It was said by Sir William Jones on the other side That the absence as it was returned was sufficient Cause to remove him for it is returned That without any reasonable Cause seipsum elongavit by the space of five years which must be intended five years continued and not made up by Fractions and so held the Court in that Case and executionem officij sui totaliter neglexit Now tho' his Presence be not of absolute necessity to the holding of the Court yet it is highly convenient that he should be there seeing the Charter gives such large Iurisdictions to determine all Causes excepting such as concern Freehold according to Law The Court here also must judicially take notice That the Office of Recorder is concerned in other matters besides the Administration of Justice in the Court for he is as it were the Common Counsel of the Corporation And whereas it hath béen objected That it is not returned that they had held a Court during his absence or that any prejudice had ensued Also That it must be intended that there were Courts when they have returned the Charter which empower them to hold one twice every week and 't is returned That he absented himself in Regiminis Civitatis detrimentum c. and ' its apparent they must suffer prejudice by so long absence If a Park-keeper should desert his Office for five years it would make a Forfeiture without Special Damage The other matter returned also That he is nullo modo peritus in lege is good Cause for the Charter appoints them to Elect such an one so one that is not so qualified is not capable and the Act of this King authorises Commissioners but to do what the Corporation might have done It is apparent That the Office requires skill in the Law he hath no power to make a Deputy by the Statute of 21 Jac. Causes in many Cases are

Court for the proceedings are diverso respectu We proceed against Conventicles as being against the Peace and as being against the Laws of the Church and to prevent the broaching of Heterodor Opinions as in one Court we do agere civiliter by Action criminaliter by Information for the same matter Secondly The proceeding in this Case is according to the constant course of proceeding in their Court for when a Presentment is made they form Articles thereupon tibi articulamur objicimus c. but they never recite or mention the Presentment in the Articles and therefore it does not nor need it appear in them in this Case So that it cannot from hence he concluded to be a prosecution ex Officio mero Moreover 25 H. 8. when it was in force concerned Heresie only As to the Presentment made in this Case by the Curate 1. Those Canons are not to be questioned they have been always allowed having been confirmed by the King 2. The Rectors absence shall be intended 3. The Churchwardens themselves whose ancient and unquestioned Office it is to make Presentments don't take a particular Oath upon all the Presentments they make but they do it by vertue of their general Oath of Churchwardens and Ministers do the same as the Bishop of Sarum present in Court had asserted just before in verbo Sacerdotis or rather by vertue of their general Oath of Canonical Obedience 4. They are not bound to specifie the Presentment in their Articles and this is not so liable to the Objection of Mischief and Vnreasonableness as the Informations daily brought in the Kings-Bench in the Name of the Clerk of the Crown which Informations are approved and preserved by the very Statute of 18 Eliz. c. 5. And if there be no due Presentment 't is an Error which consists in not proceeding according to their Rules i. e. the Canon Law and the proper remedy for that is by Appeal and our Courts will not take notice whether they observe their own Laws Prohibitions are only to be granted when the Common Law is invaded and interfered with Thirdly As to the examining of the Party upon Oath here is no cause to mention it and indeed it is not their course for they only ask him ore tenus whether he will confess or deny the Articles if he deny them then there is litis contestatio and they proceed to examine Witnesses to prove it and if it be not proved the Informer is condemned in Costs Justice Wyld I am of Opinion that there should go no Prohibition We must Iudge only upon the Suggestion Here 't is suggested that the Defendant proceeded against the Plaintiff ex Officio but that may be understood two ways either that he proceeded officiose on his own head or that he proceeded out of Duty according to his Duty and nothing appears to the contrary of this last and then he did as he ought If the Plaintiff had suggested that by the Law of the Land there ought to be a Presentment by such persons in such manner c. he might have brought that into question Archer of the same Opinion We must give faith and credit to their proceedings and presume that they are according to their Law 4 Co. 29 The King with the Convocation may make Orders and Constitutions for the Government of the Church Tyrrell of the same Opinion But if the Suggestion were that no Presentment by a Curate were sufficient nor unless it were upon Oath c. I should have been Opinion for a Prohibition I hold that the King and Convocation without the Parliament can't make any Canons which shall bind the Laity though they may the Clergy Vid. 35 H. 8. c. 19. Vaughan of the same Opinion If the Articles were exhibited meerly ex Officio i.e. out of the mind of the Chancellor himself they were not warrantable But there is no colour for this Suggestion for they appear to be the Information of a Publick Notary As to the Presentment which is thought requisite by the preamble of 25 H. 8. c. 14. declaratory of the Common Law or not it is sufficient Answer to say that the Act is repealed and therein the Preamble And for ought any man knows the Preamble was the Cause of the Repeal this has been the only specious Objection As to the Canons 3 Jacobi certainly they are of force tho' never confirmed by Act of Parliament Indeed no Canons of England stand confirmed by Act of Parliament yet they are the Laws which bind and govern in Ecclesiastick Affairs The Convocation with the License and assent of the King under the Great Seal may make Canons for regulation of the Church and that as well concerning Laicks as Ecclesiasticks and so is Linwood Indeed they cannot alter or infringe the Common Law Statute Law or Kings Prerogative but they may make alterations viz. in Eccleastical Matters or else they could make no new Canons All that is required of them in making of new Canons is that they confine themselves to Church Matters As no Human Law can be made which is contrary to the Divine Law and it is binding only in those things which are permissa by the Divine Law So no Canon Law can be made which is repugnant to the Law of the Land The Subject Matter is in the Case The permissa the things of Ecclesiastical Nature which are left indifferent by the Law of the Land in this Case we must presume there was a Presentment according to their Law if not the Remedy is by Appeal We ought not to assume the Iurisdiction of Iudging upon their Law but give way to their course of Proceedings Serjeant Ellis I only intended that Canons cannot be made to alter the Law without Parliament Curia We all agree as to the First Exception that the Spiritual Court may proceed against Conventicles as a Spiritual Offence tho' not as a Civil As to the Second That they have Conusans of all False Worshippers As to the Third That there is nocolour or occasion to make it Note The Course of the Spiritual Court is not to make a Significavit until forty days after the Excommunication General Citation is a cause of Prohibition for it ought to be expressed for what Cause But this is cured by Appearance or Appeal Termino Paschae Anno 1 Willielmi Mariae In Communi Banco Anonymus UPon a Suggestion of Devastavit of a Feme Executrix it was That the Baron and Feme devastaver ' converter ' ad usum ipsorum And upon the Issue it was found accordingly It was moved in Arrest of Judgment That they could not Convert to their own use And so in Trover and Conversion Quod converter ' ad usum ipsorum is not good Sed non allocatur For here the material part of the Issue was the Wasting which the Baron and Feme might do joyntly and the Conversion is nothing to the purpose Vid. 2. Sand. Issue upon a Devastavit Anonymus

they have been favourably Construed A Mannor in Reputation hath passed by the name of a Mannor in a Recovery Sir M. Finch's Case in Co. and in 5 Co. Dormer's Case Common Recoveries have been admitted of an Advowson All here is to be taken as one Conveyance A Deed expressing the intent may abridge the Recovery in the number of Acres 2 Co. 76. 'T is true in case of the King as that in Mo. 710. there shall be no larger Construction than the express Words import So where the Intent appears as that in Dyer 261. B. North Chief Justice Wyndham and Atkyns Scroggs absent but said by the Chief Justice to be agreed were of the same Opinion and that Common Recoveries were not to be overthrown by nice Constructions and that the Inconvenience objected against the Intent being explained by a Pocket Conveyance was the same where a man had several Lands in the same Vill that of late they have directed the Cursitors to make out Writs of Lands in Parochia They said that there was no Case express against this and that it was the stronger because found in the Verdict that he which suffered the Recovery had no Lands in the Vill and therefore must be void if not extended to the Parish Termino Paschae Anno 32 Car. II. In Communi Banco The Case of Dodwell and the University of Oxford A Prohibition was prayed to the Chancellors Court of the University of Oxford in the behalf of Dodwell who being a Townsman of Oxford was Libelled against in the said Court upon a Statute or By Law of the University made in King James's time that whoever Privilegiatus sive non privilegiatus should be taken Walking in the Streets at Nine of the Clock at Night or after having no reasonable Excuse to be allowed by the Proctor c. should forfeit 40 s c. whereof one Moiety was to go to the University and the other to the Proctor c. that should take him And that Dodwell was taken walking abroad at that Hour and being demanded a Reason thereof he refused to give any Account causa contemptus ad morum reformationem this Libel was Exhibited The Prohibition was moved for the last Term but in regard the Court observed it touched the Jurisdiction of the University on the one hand and concerned the Liberties and Rights of the Townsmen on the other hand they deferred the granting of it until they should hear Counsel on both Sides which was appointed this Term. And now sundry ancient Charters were shewn by which was granted to the University a Iurisdiction tam in Laicos quam in alios and a By-Law made above 200 years since against Night-walking with the penalty of 40 s upon the Offender and Presidents of Proceeding thereupon in the Chancellors Court and that they were as well Guardians of the Peace by Prescription as by Charter And an Act of Parliament of 13 Eliz. was shewn whereby their Jurisdictions and Priviledges and Statutes were Confirmed And altho' the Mayor hath also a Commission of the Peace yet 't is subordinate and he swears Fealty to the Chancellor Curia This Libel is grounded upon a By-Law of 7 Jac. and being subsequent to that Statute of 13 Reginae it is questionable whether warranted by it or no This By-Law and Proceeding cannot be grounded nor derive Authority from their being Guardians of the Peace by Prescription as it seems they are by 9 H 6. 44. For without Act of Parliament or express Prescription a Corporation cannot make a By Law to bind those which are not of the Body Justices of the Peace cannot ordain a Penalty for a Crime without their Jurisdiction and the Proceeding in the Chancellors Court which is according to the Civil Law● cannot be warranted by the Kings Charter For no Court other than such as proceed according to Law can be unless by Prescription or Act of Parliament wherefore in regard if the University should Intitle themselves to this Jurisdiction by Prescription it were properly triable by a Jury And if upon the Act of 13 Eliz. Matter of Law might arise how for the Act might extend North Chief Justice Atkyns and Scroggs thought it was not fit they should determine those Questions upon a Motion but inclined to grant the Prohibition and propounded to the parties to agree that the Libel should be amended wherein it was grounded upon the by-By-Law made 7 Jacobi which being subsequent to the Act of 13 Eliz. the Merits of the Cause would not be brought before themselves to determine the Grand Points which was agreed And then the Court said that they would grant a Prohibition and let the other Plead c. For North said that they did often deny a Prohibition tho' it were a Writ ex debito Justitae where they saw no Colour for it But if any material Questions were like to arise it was proper to grant it and not to determine them upon Motion but upon pleading to the Prohibition and therein it differed from a Habeas Corpus which was to be inst aly granted because the party is in Prison but there is no such speed requisite in a Prohibition But Wyndham was against the Prohibition in the Case at Bar for he took it that the By-Law 7 Jac. was but in Confirmation of that made before and as a Renewing of it which he took to be confirmed by the Act of 13 Eliz. Nota Scroggs said that Nine of the Clock could not be held such an Hour as it should be a Crime for a Townsman to walk at no more than Three in the Afternoon Tho' for Scholars it might be reasonable to restrain them but no Reason that Townsmen should be subjected to such Rules as were proper for Scholars And upon this he much grounded his Opinion for the Prohibition Anonymus IN an Action of Trespass the Defendant pleaded That the Plaintiff was Impropriator of such a Rectory and that he was sued in the Ecclesiastical Court and by Sentence there the Profits were sequestred for the Repair of the Chancel To which the Plaintiff demurred supposing that by 31 H. 8. the Profits of Rectories Impropriate were made Lay Fee and so not subject to be sequestred by the Court Christian and therefore it was supposed that the Lay Impropriator could not sue for Tythes in the Spiritual Court. For which Cause 32 H. 3. was made to empower Lay-men to recover them and 35 H. 8. gives the Ordinary Remedy for Procurations and Synodals which was conceived had been lost by making the Rectories Lay Fee 2 Cro. 518. in Parry and Banks's Case it is Resolved that when the Rectory is in the hands of a Lay Impropriator the Ordinary cannot dissolve the Vicaridge nor in such case cannot augment the Vicaridge 2 Roll. 339. The Form of Pleading was also Objected unto As First 'T is not positively alledged that the Chancel was out of Repair but that he was Libelled against which Libel did mention only it to be

distress upon a Copyholder for a reasonable Fine the value of the Land must be set forth and the certainty of the Fine that the Court may judge of it Austin and Gervases Case Hob. 69 77. In Consideration that he should give him Bond for 10 l the Defendant promised c. and pleads that he offered him Bond for the said sum c. and upon Issue Non Assumpsit it was found for the Plaintiff But he could not have Iudgment because the sum wherein he offered to become bound was not exprest so that it might appear to the Court to be sufficient Jones contra This differs from the Case in Hob. for there the sum being certain for which the Bond was to be given the Court may well judge what Penalty will secure it But it is not so in this Case for it doth not appear to what value the damnification may be so there is nothing as in the other Case whereunto to Proportion the Penalty of the Bond. The Court held that it would not have been good upon a Demurrer but being after a Verdict and the Statute of Jeofails made at Oxford which Twisden stiled an omnipotent Act they gave Iudgment for the Plaintiff Lord Birons Case THe Lord Biron was Plaintiff in an Action and upon a Non-Suit five pounds Costs were taxed against him and he brought another Action for the same matter which was said to be meerly for vexation and that he refused to pay the Costs neither could he be compelled being a Peer and in Parliament time Wherefore the Court gave day to shew Cause why this Action should not stay until he had paid the Costs in the former Anonymus IF a Writ of Error be brought in the Exchequer Chamber and that being discontinued another is brought in Parliament this second Writ is a Supersedeas But if a Writ of Error be brought in Parliament and that abates and the Plaintiff brings a second this is no Supersedeas because it is in the same Court Prior versus Shears IN a Writ of Error to Reverse a Judgment given in the Palace Court in an Assumpsit where the Plaintiff declared sur indebitatus pro Naulo and upon Non Assumpsit c. had Judgment It was assigned for Error That it was not ascertained how the Defendant was indebted and that Fraight was usually contracted for by Charter party and if so the general Indebitatus would not lie for a Debt by Specialty Notwithstanding the Judgment was affirmed for for ought appears there was not any Deed in the Case and it shall not be intended and it is no more than the Common Action pro mercimoniis habitis venditis Note It was further objected That this appears to be for Marriners Wages for Sailing to some Foreign parts which must needs be out of the Jurisdiction of the Marshalsea and though the Argréement were made within it yet the thing being to be done elsewhere they could not hold Plea As if a Carrier should agree within the Limits of the Court to carry Goods from thence to York no Action could be brought there upon it which was agréed But the Court said here It doth not appear they were to Sail to any place out of the Jurisdiction and they have laid all the Matter to be infra Jurisdictionem Curiae And therefore the Judgment was Affirmed Hayman versus Trewant TRin. 22 Car. 2. Rot. 710. In an Action upon the Case for that the Defendant bargained with him such a day and year for the Corn growing upon such Ground affirming it to be his own whereas he knew it to be the Corn of J. S. and postea adtunc ibid. fraudulenter vendidit Warrant ' c. The Defendant pleads That the Plaintiff had another such Action depending for the same Cause and demands Iudgment of the Writ The Plaintiff Replies that that Action was commenced for another Cause and not for the same absque hoc that it was for the same Cause To which the Defendant Demurs specially because the Plaintiff having denied what the Defendant affirmed ought not to have added a Traverse but to have concluded to the Country As the Case of Harris and Phillips 3 Cro. 755. was Adjudged Where in an Audita Querela to avoid the Execution of a Recognizance the Plaintiff sets forth that it was defeazanced upon payment of divers Sums of Money at certain days and that he was at the place appointed and tendred the Money and that the Defendant was not there to receive it The Defendant pleaded Protestando that the Plaintiff was not there to pay it and that he was there ready to receive it absque hoc that the Plaintiff was ready to pay it Which being specially Demurred to the Court held the Plea naught and that there being an express Affirmative and Negative there should have been no Traverse for so they may traverse one upon another in infinitum Notwithstanding the Traverse was here held good which was allowed for putting the Matter more singly in Issue And it appears that Phillips's Case was Adjudged upon another matter For that the Plea in Bar was not entred as the Defendant's Plea but was entred thus Pro placito Bush a Stranger dicit Yelv. 38. Then it was moved That as the Plaintiff hath declared here it appears that the Warranty was subsequent to the Bargain For it is said that he bargained for the Corn knowing it to be the Corn of J.S. postea adtunc ibidem vendidit which is repugnant Sed non allocatur for where it is said first That he bargained that shall intended a Communication only and the Consummation of it after when the Warranty was given which is also said to be adtunc ibidem So alledged well enough Foxwith versus Tremaine TRin. 21 Car. 2. Rot. 1512. Five Executors bring an Action sur Indebitat ' Assumps The Defendant pleads in Abatement That two of them are under the Age of 17. and that they appeared by Attorney And to this the Plaintiffs Demur They who Argued for the Defendant made two Questions 1. Whether they ought all to joyn in the Action And it was said they ought not for one under Age cannot prove the Will And in Smyth and Smyth's Case Yelv. 130. it is Resolved they must be all Named so that their Interest may be reserved unto them but are not to be made parties to the Action And for this the Case between Hatton and Mascue which was Adjudged in the Exchequer Chamber was cited Where in a Scire facias it was set forth That A. being the Executor of B. made his Will thus I Devise all my Personal Estate to my two Daughters and my Wife whom I make my Executrix And that they had Declared in the Ecclesiastical Court that this made them all three Executrixes and that the Will was proved and that the Wife brought this Scire facias to have Execution of a Judgment obtained by A. the Testator And the Defendant Demurred because not

to Bernard to make his Wife a Joynture it shews that it was intended he should have but an Estate for Life which needed such a Power and not an Estate Tail for then he might have made a Joynture without it I Answer That Tenant in Tail cannot by virtue of such Estate make a Joynture without discontinuing or destroying his Estate Sed Judicium pro Quer ' There being Justice Twisden and Justice Rainsford against the Chief Justice Termino Sancti Hillarij Anno 24 25 Car. II. In Banco Regis Anonymus A Prohibition was prayed to the Ecclesiastical Court for that they Cited one out of the Diocess to Answer a Suit for a Legacy But it was denied because it was in the Court where the Probat of the Will was For tho' it were before Commissioners appointed for the Probat of Wills in the late Times yet now all their Proceedings in such cases are transmitted into the Prerogative Court And therefore Suits for the Legacies contained in such Wills ought to be in the Archbishop's Court for there the Executor must give account and be discharged c. Note When a man is in custodia Marescalli any man may Declare against him in a Personal Action and if he be bailed out he is still in custodia to this purpose viz. quoad Declarations brought in against him that Term For the Bail are as it were Delegated by the Court to have him in Prison Hob. Error is not well assigned That there was no Bail filed unless added That the Defendant was not in custodia Debt IN an Action of Debt upon a Sheriffs Bond the Case was this A man was Arrested upon a Latitat in placito Transgr ' ac etiam bille pro 40 l de debito And the Condition of the Bond given to the Sheriff was to appear at the Day of the Return of the Writ to answer to the Plaint in plito debito And it was urged that this made the Bond void by the Statute of 23 H. 6. for the Condition should have been to Appear at the Day to Answer in the Action upon which the Process went out and that was in this Case but an Action of Trespass and the adding the Ac etiam debiti c. is but to satisfie the late Act and for Direction to the Sheriff to what Value he shall require Bail And it was usual to Endorse the Cause of Action before the Statute upon the Latitats that the Sheriff might insist upon Bail accordingly So this is a material Variance from the Statute and not like some of these which are remembred in Beaufage's Case in the 10 Co. and Dyer 364. And to this the Court inclined And Hale Cited a Case between Button and Low adjudged Mich. 1649. An Attachment went out of Chancery to answer Coram nobis in Cancellaria ubicunque c. and the Sheriff took a Bond Conditioned to Appear Coram Rege in Cancellaria ubicunque c. apud Westmonasterium And for the addition of Westminster the Bond was held to be void Anonymus THe Court was moved for a Prohibition to the Archbishop's Court to stop their Proceedings in a Cause belonging to the Jurisdiction of Durham upon a Suggestion that the Dean and Chapter of Durham Sede vacante have Cognizance there as Guardians of the Spiritualties And the Court granted a Prohibition for the Right of Jurisdiction was tryed between the Archbishop and Dean and Chapter the last Term and found against the Archbishop and therefore he was concluded by the Verdict until the Record was reversed by Error or Attaint Thodie's Case THody and two others were Indicted for that Conspiratione inter eos habita they enticed J. S. to play and cheated him with False Dice Thody pleaded and was found Guilty the others not having pleaded It was moved that Judgment might not be Entred against him until the others came in for being laid by way of Conspiracy if the rest should chance to be acquitted no Judgment could be given against him And so is 14 H. 6. 25. Hale said If one be Acquitted in an Action of Conspiracy the other cannot be Guilty But where one is found Guilty and the other comes not in upon Process or if he dies hanging the Suit yet Judgment shall be upon the Verdict against the other And so is 18 E. 3. 1. and 24 E. 3. 34. Wild said The difference was where the Suit was upon Conspiracy wherein the Villanous Judgment was to be given and where the Conspiracy is laid only by way of Aggravation as in this Case Hale said It would be the same in an Action against two upon the Case for Conspiracy but not in such Actions where tho' there be a Charge of Conspiracy yet the Gift of the Action is upon another matter But the Court said They would give him two or three days for the bringing in of the other two and defer the Entry of the Judgment in the mean time Methyn versus the Hundred of Thistleworth THe Case was moved again by North Solicitor He urgrd for the Plaintiff That the Issue being Whether they took the Felon upon Fresh Suit It being not found that there was any actual Taking or that the Fresh Suit continued until Sir J. Ash found the Felon in the presence of Sir P. Warwick Also it was found that Sir J. Ash was a Justice of Peace and therefore it was his duty to Apprehend him To this it was Answered That the Statute of Winton upon which the Action is founded and not upon the 27 of Eliz. and therefore it is ill if it concludes contra formam Statutorum doth not say shall Take but shall Answer the Bodies of the Offenders which is Answer them to Justice And therefore if the Felon be taken upon another account and the Country finding him in Prison cause him to be Indicted this satisfies the Statute Goldsb 55. Again it was more decent for Sir John Ash being concerned as an Inhabitant of the Hundred to leave this Matter to the other Justice of the Peace for it has been known that Justices of the Peace have been Censured in the Star-Chamber for being too forward to interpose in their own business But if it were an omission of the Duty of his Office that could not be Objected to him as an Inhabitant having done enough to satisfie the Statute of Winton Wild said That the Defendant should have Demurred because the Issue is ill joyned viz. absque hoc that he took him super eadem recenti insecutione For if he were not immediately taken upon Fresh pursuit it were sufficient but the Verdict finding Fresh Suit was made it may be taken by Intendment which shall help out a Special Verdict that it was directed this way and continued until the finding of him in the presence of Sir P. Warwicke Et sic Judicium pro Def. Ante. Dacres versus Duncomb IN Trover after Imparlance the Defendant pleaded That the Plaintiff with two others brought Trover for the

Discretion tion of the Court to grant Restitution even after a Traverse put in yet now since the Statute of Eliz. where such Plea is tendred the Court cannot grant a Restitution tho' they would in this Case if by Law they might for the party that made this Entry had lost the Land just before by Verdict in an Ejectment and by this means the effect of it should be disappointed Note The Indictment wanted Vi armis for it was pacifice intravit sine Judicio disseisivit à possessione expulit amovit But on the other side it was said First That the Entry being pacifice it was not the course to lay it Vi armis Secondly That 37 H. 8. cap. 8. supplied the defect of Vi armis in an Indictment But as to the latter the Court were of Opinion that the Statute supplied only the lack of the words gladiis baculis cultellis as are mentioned in the Statute Vid. the Stat. Anonymus A Suit for a Pension may be in Ecclesiastical Court tho' by Prescription but if it be denied to be time out of mind then a Prohibition is to go so that the Prescription may be tried at Law as in a Modus decimandi mutatis mutandis It was said by the Court that two might joyn in a Prohibition tho' the Gravamen was several but they must sever in their Declarations upon the Attachment Termino Sancti Hillarij Anno 26 27 Car. II. In Banco Regis Anonymus IN Error the Writ was Teste the 30th of November last and Retornable in Parliament the 13th of April next the Day to which the Parliament was Prorogued The Defendants Counsel desired the Rule of the Court for the taking out of Execution supposing this Writ of Error was no Supersedeas and alledged that the late Rule made in the House of Lords did not extend to their Case for that was That all Causes there depending should not be discontinued by the intervening of a Prorogation but this Case will not be there depending before the Return of the Writ In 3 H. 7. 19. the Court of Kings-Bench would not allow a Writ of Error into the Parliament until some Error was shewn to them in the Record lest it should be brought on purpose to delay Execution In Bulstrode's Reports a Writ of Error Returnable the second Return of the Term was held to be no Supersedeas because it seemed an affected delay that it was not made Returnable the first Return Hale It has been taken that a Prorogation determined a Cause depending in Parliament by a Writ of Error but the Lords have lately Declared otherwise But that comes not to this Case the Writ not being Returned A Writ of Error Returnable ad proximum Parliamentum is not good but otherwise if they are summoned or prorogued to a Day certain If the Day of the Session had been a Year hence it would be hard a Writ of Error should stay Execution and the same Reason where the whole Term intervenes A Writ of Error did bear Teste 10 Nov. and was Returnable 1 Nov. proximè futur ' and the Record was sent into the Exchequer Chambet and a Mittimus Endorsed upon the Roll here And it was Resolved that Execution might be taken out because of the long Return Secondly That tho' there were Mittimus upon the Roll yet the Record remained here until the Return of the Writ to all purposes And the Opinion of the Court was that the Writ of Error was no Supersedeas But they would make no Rule in it because they said it was not Iudicially before them but the party might take out Execution if he thought fit And then if the other Side moved for a Supersedeas they should then Resolve the Point Note Hale said in an Assumpsit for Money upon the Sale of Goods upon non Assumpsit the Defendant might give in Evidence an Eviction of the Goods to mitigate the Damage and in all Assumpsits tho' upon certain Contracts the Jury may give less Damages than the Debt amounts unto as he said was done in a Case where a man promised to give a Straw for every Nail in every Horses Shoe doubling every time and they gave in Damage but the Value of the Horse tho' as the Bargain was made it would have come to above 100 l Lomax versus Armorer A Writ of Error was brought to Reverse a Judgment in Dower given in the Court of Newcastle The Error assigned was because the Proceeding was by Plaint and no Special Custom certified to maintain it As in London and Oxford they have Assizes of Fresh Force by Plaint The Court held it to be Erroneous for this Cause but would not determine whether it might not be good upon a Special Custom 1 Rolls 793. Pl. 11. Anonymus A Mandamus was granted to the Archdeacon of Norwich to Swear a Churchwarden upon surmize of a Custom That the Parishioners are to choose the Churchwardens and that the Archdeacon refused him notwithstanding that he was Elected according to the Custom The Archdeacon Return'd that non sibi constat that there is any such Custom which Form is not allowable for it ought to be positive whereupon an Action might be grounded and that by the Canon the Parson is to choose one c. The Court said that Custom would prevail against the Canon and a Churchwarden is a Lay Officer and his Power enlarged by sundry Acts of Parliament and that it has been Resolved that he may Execute his Office before he is Sworn tho' it is convenient he should be Sworn and if the Plaintiff here were Sworn by a Mandate from this Court they advised him to take heed of disturbing him Noy Rep. 139. Anonymus AN Assumpsit was brought against an Executor for that the Testator being Indebted to the Plaintiff he did ad requisitionem of the Defendant come to Account with him upon which there appeared to be so much due to the Plaintiff which he promised to pay After Verdict the Judgment was de bonis propriis and it was moved that it ought to have been de bonis testatoris For the Accounting with him is little more than telling him what is due and this might make an Executor afraid of Reckoning with any of his Testators Creditors The Court said that the Accounting upon the Defendants Request which was more than the Plaintiff was bound to have done was a Consideration and after a Verdict they must intend an express Promise But Hale said If upon the Evidence it had appeared that there was no Intention to alter the Nature of the Debt as in case an Executor should say stay a while until the Testators Estate was come in and I will pay you he should direct the Jury to find against the Plaintiff that would in such case charge an Executor in his own Right Termino Paschae Anno 27 Car. II. In Banco Regis NOte In an Indebitat ' Assumpsit a man Promises in Consideration that

of Wood he hath the effect of his Grant But Trees differ in value exceedingly from each other Bolton versus Cannon IN Debt against an Executor for Rent Arrere in his own time in the debet detinet The Defendant pleads that the Rent is more worth than the Land and that he tendred a Surrender before the time for which the Rent is demanded and that the Plaintiff refused to accept the Surrender and that he had fully administred and so demands Iudgment of the Action The Plaintiff replies that there was Rent Arrear to him and that therefore he was not bound to accept of the Surrender and to this the Defendant Demurrs The Court said First That an Executor that does intermeddle cannot wave a Lease or any other part of the Testators Estate for he cannot assume the Executorship for part and refuse for part Secondly That in case the Land be not more worth than the Rent it is a good Plea to an Action of Debt in the debet and detinet for he is to be charged in the detinet only tho' where the Rent is of less value he may be charged in the debet detinet for that which is accrued in his own time according to Hargraves Case 5 Co. Thirdly The doubt here is that the Defendant having waved the material part of his Plea viz. That the Rent exceeded the value of the Land and relied upon his tender of a Surrender which is nothing to the purpose whether Judgment can be here for him and that otherwise his Plea is double but because the Plaintiff hath not demurred to that but answered only to one part of it the Defendant might well Demurr upon the Replication because it does not answer all contained in the Plea for unless the party Demurrs for doubleness he is bound to answer all the matters alledged Et Adjornatur But being this Term moved again Iudgment was given for the Plaintiff because the Defendant relinquished the material part of his Bar and offered matter meerly frivolous Cartwright versus Pinkney TEnant for years Surrenders to the Lessor reserving a Rent the question was Whether it was a good Reservation And held that it was upon the Contract and that Debt lay after the first day was incurred wherein it was reserved to be paid for it was in the nature of a Rent and not of a Sum in Gross Ante Wilson and Pinckney Anonymus IN Trespass for Fishing in his several Fishery pisces cepit After a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff ought to have alledged what kind of Fishes and the number of them as in Playters Case 5 Co. is But for that it was said on the other side that at that time they were more strict in the certainty of pleading than since for now and indebitat ' Assumpsit for Work done or Goods sold is allowed without further certainty And that however the Oxford Act 15 Car. 2. here helped it for tho' this be none of the defects there enumerated yet the words of the Act being That Judgment shall not be arrested for any other exception that doth not alter the nature of the Action or Tryal of the Issue shall extend to this Case But the Court were of Opinion that none of the Acts had aided this Case in regard that there was not so much as the number of the Fishes expressed as if a Man should bring Trespass for taking of his Beasts and not say what But Hale said Trover for a Ship cum velis had been allowed because all made but one aggregate Body both the Ship and Sails But Trover pro velis would not be good Vid. 2 Cro. 435. Trespass quare clausum fregit Spinas cepit and 3 Cro. 553. Child and Greenhills Case Dr. Webb versus Batchelour al' IN Trespass for taking so many Cowes upon Not guilty a Special Verdict was found That an Act of this King for repairing of the High-ways appoints that such persons as keep Carts and Horses c. should send them at certain times to assist in the repairing of the Ways not having a reasonable excuse and that warning was given to the Parishioners of the Parish whereof the Plaintiff was Parson to send in their Carts and that the Plaintiff omitting to do it a Justice of Peace made a Warrant to the Defendant to distrain him according to the Authority given by the Act c. It was alledged for the Plaintiff First That Clergymen were not obliged by this Act for Ecclesiastical Persons have always had immunities from such charges as Pontage Murage c. and shall not be comprehended in the general words Parishioners Secondly That in regard the Act allows an excuse the Justice of the Peace ought to have caused the Plaintiff to have appeared before him to have seen whether he had an excuse before he could have made his Warrant and tho' the Officer that executes the Process of a Court of Record be indemnified where the proceeding is Erroneous yet 't is not so where the proceeding is not of Record as the 10 Co. in the case of the Marshalsey 3 Cro. 394. Nicholls versus Walker and Carter Where a Warrant was made by a Justice of the Peace to distrain for a Poors Rate Trespass was maintained against the Officer that executed the VVarrant because the Plaintiff was not chargeable as an Inhabitant of the Parish for whose Poor the Rate was made Curia contra 1. The Clergy are liable to all publick charges imposed by Act of Parliament and that hath been resolved as Hale said upon debate before all the Judges 2. The Officer that executes the VVarrant though unduely made for the cause alledged is not answerable for he is not to judge but to execute the matter it being within the Jurisdiction of the Justice of the Peace and 't is not like the Case in the 3 Cro. for there the Churchwardens And Overseers of one Parish distrained in another Parish which was out of the limits of their Authority but in 14 H. 8. 16. where a Justice of the Peace made a VVarrant to Arrest a Man for Felony which in those times was held beyond his power tho' otherwise since unless there had been some Indictment of Record yet 't is there held the Officer that executes such VVarrant is not punishable Wherefore Judgment was given here for the Defendants Termino Sanctae Michaelis Anno 27 Car. II. In Banco Regis Anonymus A Judgment was removed by Error into this Court and affirmed the Capias that is Awarded thereupon must mention it and not be general as upon a Judgment originally in this Court and if such a Writ issues out the Court will upon motion grant a Supersedeas and there needs no Writ of Error in Adjudicatione Executionis tho' it was taken out in a former Term. Anonymus LIbel was by the Churchwardens of c. in the Ecclesiastical Court for 1 l 6 s 8 d upon a Custom

Order And Wild said It was well Westminster-Hall Doors were open Kent versus Derby INdebitatus Assumpsit The Plaintiff declared that the Defendant being indebted to him in a certain sum pro diversis mercionis ante tunc venditis deliberatis ad requisitionem of the Defendant to a Stranger did promise to pay c. After Verdict for the Plaintiff it was moved in Arrest of Judgment that this was but a Collateral Promise and that no Indebitatus Assumpsit would lie for the Debt was from the person to whom the Goods were sold Wild and Jones held the Action well brought and cited an Action sur indebitatus Assumpsit lately in this Court against one for Money promised in Marriage with his Sister Vid. R. 120 122. Sed Rainsford Chief Justice contra But the Plaintiff had Judgment Termino Sanctae Trinitatis Anno 29 Car. II. In Banco Regis Howlet versus Carpenter THe case upon a Special Verdict in Ejectment was this a Copiholder of a Dean and Chapter levied a Fine with Proclamation and five years passed without any Seizure or Claim by him that was Dean at the time of the Fine levied and whether the succeeding Dean was barred was the question And the Court at the first opening held clearly that he was not for if so the Statutes 1 13 Eliz. which restrain the Alienation of the Church Revenue would be of small effect 11 Co. Magd. Colledge's Case The Company of Ironmongers versus Nailer IN Trespass upon Not guilty a Special Verdict was to this effect that Nailer being one of the Officers for Collecting of the Duty of Hearth Money distrained for a certain Sum accruing for the Chimneys of a new built House which had never been inhabited neither did it appear that there had been any account of the Chimney's thereof returned into the Exchequer There were made three questions First Whether any thing shall be paid for Chimneys in such new built Houses Secondly Whether the Distress can be for that Duty in other places than at such Houses Thirdly Whether there can be any Distress taken before such time as the account of the Chimneys be returned into the Exchequer As to the first the whole Court were clear of Opinion that such new Houses which were never inhabited were chargeable for the words of the first Act are express viz. That every Dwelling and other House and Edifice other than such as are after excepted shall pay And there is no exception that extends to such House altho' it were objected that the Proviso in the Act of 14 is that the Duty shall be chargeable only on the Occupier and every Clause in the Act runs upon Occupiers and the Act of 15 recites the Kings Revenue to have been much obstructed for want of just Accounts of Chimneys under the hands of the Occupiers and the Act of 16 charges the next Occupiers with the half years payment where the former Occup●er removed before it grew due which implies if an House stood empty for longer time it should not be paid Again it is appointed to be demanded at the House and in case of refusal to distrain which shews an intention that it should be inhabited But it was answered That the words before mentioned were so full as not to be avoided and that there were sundry Clauses also in the Act which did import an intention that empty Houses should pay and so hath been the practice ever since the Act and that there were no manner of difference between these Houses which were new built and other Houses that in case there was no Tenant the Owner was understood to be Occupier as if the Owner grants an House in his Occupation it would be well tho' he did not inhabit it himself if it were inhabited by no other The Act of the 13 and 14 appoints notice to be fixed upon the Door for an account to be given in case there be no Inhabitant and six days after such notice to enter and take account which shews they meant empty Houses should be chargeable and why not as well as for Chimneys whereof no use is made As to the second Point the Distress it well taken tho' it doth not appear to be after an account made into the Exchequer for the duty accrues before and that is provided only that the King might be apprized of the number of Chimneys and so there might be a check upon the Collectors when they make their Accounts neither is any Process appointed to go out upon such Return of the number of Chimneys The Statute of 21 Jac. appoints Informers to be Sworn but if an Informer be not Sworn 't is but a neglect in the Officer The Proceedings are notwithstanding sufficient Mo. 447. where 21 H. 8. appoints the Enrolments of Dispensations in Chancery yet if not done it does not invalidate the Dispensation Thirdly The Distress was resolved to be well taken being in the Kings Case for an Act of Parliament shall be expounded according to the reason of the Law in such Cases Note Livesay the Secondary craved the Opinion of the Court whether he should tax treble Costs in this Case for the Act of 14 gives treble Costs where any person is prosecuted for what he should do in execution of that Act c. Now that Act appointed the Constables c. to Collect and Execute the Act. But now by vertue of the subsequent Acts for the Chimney Money the Collection c. is by other persons and the doubt is Whether they can have treble Costs by the Act of 13 and 14. But the Attorney General who was of Counsel with the Defendant said he would not insist upon treble Costs at this time because this Cause was brought on by consent for the determination of the doubt about new empty Houses paying but desired that it might be without prejudice Baker versus Bakers A Prohibition to the Delegates The case was that Administration had been granted to the Wife upon which an Appeal was brought by the Mother of the Intestate upon this Allegation in t ' al' That the Wife had Covenanted that she would not intermeddle in the Administration in regard she had been otherwise sufficiently provided for for it was said that the Ecclesiastical Judges had not to do with such matter But it was objected on the other side that it fell incidently into the principal matter whereof they had Conuzance but they might be prohibited if they judged the effect of it contrary to our Law neither did it appear that the Delegates would admit of this Allegation and there were no presidents for a Prohibition quia timer But on the other side it was said that there would go a Commission out to examin this matter of course before the Judges Delegates should sit to hear the merits of the case and that would take up so much time that many of the Goods being bona peritura would be lost but note the Ecclesiastical Judges may provide for the

Heir in England or to have one My third and last Reason is indeed more general tho' not so conclusive as the two former were upon the particular Reason of the Case tho' not altogether to be neglected viz. The Law of England which is the only ground and must be the only measure of the incapacity of an Alien and of those consequential results that arise from it hath been always very gentle in the construction of the disability and rather contracting than extending it so severely For Instance The Statute de natis ultra Mare 25 E. 3. declares that the Issue born beyond Sea of an English Man upon an English Woman shall be a Denizen yet the construction hath been tho' an English Merchant marries a Foreigner and hath Issue by her beyond the Sea that Issue is a natural born Subject In 16 Cro. Car. in the Dutchy Bacons Case per omnes Justic ' Angl ' And accordingly it hath been more than once Resolved in my Remembrance Pround's Case of Rent The Case of the Postnati commonly called Calvin's Case the Report is grounded upon this gentle Interpretation of the Law tho' there were very witty Reasons urged to the contrary and surely if ever there were reason for a gentle Construction even in the Case in question it concerns us to be guided by such an Interpretation since the Vnion of the two Kingdoms by which many perthance very Considerable and Noble Families of a Scottish Extract may be concerned in the consequence of this Question both in England and Ireland that enjoy their Inheritances in peace I spare to mention particulars So far therefore as the parallel Cases of Attainder warrant this extent of this Ability I shall not dispute but further than that I dare not extend Now as touching the Authorities that favour my Opinion I shall not mention them because they have been fully Repeated and the later Authorities in this very Case are not in my Iudgment to be neglected Touching the Case of Godfrey and Dixon it is true it doth differ from the Case in question and in that the Father was made a Denizen and then had Issue a younger Son who inherited the elder Son an Alien born but Naturalized after the death of his Father yet there is to be observed in that Case either the Naturalization of the elder Son relates to his Birth or relates only to the Time of his Naturalization whether it did relate or not depends upon the words of the Act of Naturalization which I have not seen If it did relate the Cause in effect will be no more but an Alien hath Issue a Natural born Son for so he is as I have Argued by his Naturalization and then is made a Denizen and hath Issue and dies the elder Son purchaseth Lands and dies without Issue the younger Son shall inherit the elder should not have inherited his Father by reason of the Incapacity of the Father But it doth not relate further than the Time of his Naturalization which was after the time of the Death of his Father and consequently he could not divest the Heirship of his younger Brother yet if he purchaseth and dies without Issue his younger Brother shall inherit him tho' there was never Inheritable Blood between the elder Son and his Father so much as in fiction or relation Vpon the whole Case I conclude First That there be two Brochers Natural born in England the Sons of an Alien the one shall inherit the other Secondly That the Naturalization puts them in the same Condition as if born here tho' it does not more Thirdly That John the Son of George stands in the same Condition of inheriting his Vncle the Earl as George should have done had he survived the Earl Fourthly But if the Disability of Robert the Father had disabled the Brothers to have inherited one the other the Naturalization of the Earl or George had not removed that Disability Fifthly But no such Disability of the Father doth disable the Brother George to inherit the Earl it neither doth Consequentially disable John the Son of George to inherit the Earl Consequently as to the Point referred to our Iudgment John the Son of George is Inheritable to the Land of John his Vncle. The End of the First Volume A TABLE OF THE Principal Points Argued and Resolved in the First PART OF THESE REPORTS A. Abatement See Pleadings IN the Ecclesiastical Court a Suit does not abate by the Death of either Party Pag. 134 A Baronet is Sued by the Addition of Knight and Baronet the Action shall abate 154 In all Actions where one Plaintiff of several Dyes the Writ shall abate save in an Action brought by an Executor 235 Acceptance Where Acceptance of Rent from the Assignee shall discharge the Lessee 99 Action See Bail Whether an Action of Debt qui tam upon the Stat. 5 El. c. 4. lies in B. R. 8 Action brought de uxore abducta and concludes contra forman Statuti where there is no Statute in the case yet good 104 Action for a Nusance in stopping of the Lights of his House p. 139 237 248 Action upon the Stat. 13 Car. 2. by one Bookseller against another for Printing his Coppy p. 253 Where the Matter consists of two parts in several Counties the Plaintiff may bring his Action in which he pleases p. 344 Where several Causes may be joyned in one Action and where not 365 366 Action upon the Case See Jurisdiction Way In the Nature of Conspiracy a-against three for Arresting without Cause and only one found Guilty 12 Such an Action lies against one p. 19 Lies for a Justice of Peace against one who Indicts him for Matters in the Execution of his Office p. 23 25 For taking his Wife from him brought against the Womans Father p. 37 Lies not against a Justice of Peace for causing one to be Indicted who was after accquitted 47 Where it lies for Suing one in the Ecclesiastical Court and where not 86 For erecting a Market 7 miles off 98 Upon the Custom of Merchants for a Bill of Exchange accepted 152 For not Grinding at his Mill 167 Where it lies against a Master of a Ship for Goods lost out of the same 138 190 191 Against the Mayor of L. for not Granting a Poll upon a doubtful Election 206 For not repairing a Fence 264 Against a Taylor for Spoiling his Coat in making 268 For Riding over the Plaintiff with an unruly Horse 295 Where Action lies for Defaming the Wife whereby the Husband loses his Customers 348 Action upon the Case For Slander You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds These last Words not Actionable 3 She was with Child by J. S. whereof she miscarried 4 Thou hast received stoln Goods and knew they were stolen J. S. Stole them and thou wert Partner with her 18 Of a Midwife She is an Ignorant Woman and of small Practice and very unfortunate in her Way there

Demurrer to the Replication Joynder in Demurrer 241 7. Debt upon a By-Law made by a Corporation by Prescription 243 The Declaration sets forth That the Town of G. is Antiqua Villa a Corporation time out of mind Power to implead and be impleaded A Custom to make By-Laws for good Government of the Corporation and to impose Penalties Custom to elect a Bayliff annually 243 The By Law sets forth Forfeiture for the Breach The Defendant elected Bayliff for the year then next following who refused to execute the Office per quod Actio accrevit The Defendant pleads the Act of 13 Car. 2. 244 The Act set forth 245 And alledges that he is and at the time aforesaid was a Protestant Dissenter and had not received the Sacrament according to the Rites of the Church of England with a year before his Election and that the said Election by virtue of the said Act was void The Plaintiff demurs The Defendant joyns 246 8. Debt for Rent upon two several Demises by Lease Parol 249 The first Demise Exception Habendum Reddendum Entry Rent arrear Actio accrevit 250 The second Demise Exception Habendum Reddendum Rent arrear Actio accrevit 251 The Defendant pleads That the Plaintiff Nihil habuit in tenementis tempore dimissionis it should have been temporibus demissionis ibid. The Plaintiff replies That before the several Demises one J. S. demised to him for 41 years the said J. S. having then full Power Right and Title to make such Demise by virtue of which he entred and was possest and demised to the Defendant 252 The Defendan demurs The Plaintiff joyns in demurrer 253 Distress and Avowry Vide Replevin E Error 1. ERror in the Exchequer Chamber The Style of the Court 286 The Writ of Error 287 The Return of the Writ The Memorandum and Declaration in a special Action of the Case for not grinding at an Ancient Mill. Seisin of the Mannor and Mill. The Plaintiff Farmer of the Mill habuit habere debuit the Toll 288 The Defendant Occupier of an Ancient Messuage which ought to grind at his Mill. That the Defendant erected a Hand-Mill and ground therewith ratione cujus the Plaintiff lost his Toll The Defendant imparles and pleads Not guilty 289 Postea Tales Verdict for the Plaintiff The Judgment The Placita in the Exchequer Chamber 190 The General Errors assigned A Scire facias ad audiendum Errores prayed and awarded The Defendant in the Writ of Error appears and pleads in nullo est Erratum 291 2. The Placita in the Exchequer Chamber The Writ of Error 296 The Return of the Writ The Placita 297 The Memorandum and Declaration upon an Inland Bill of Exchange The Custom set forth That any Merchant or other person vel Ordini suo super visum acceptavit sic per Indorsamentum appunctuaret pro valore recept ' c. Upon Refusal to pay the Merchant or other person to become chargable 298 Avers That the Defendant being a Merchant at N. drew a Bill upon one J. S. in London payable to one P. or Order for Value received The Bill presented to J. S. and accepted by him P. orders payment to the Plaintiff J. S. had Notice and the Money demanded of him but refused payment of which the Defendant had Notice 299 And became chargable and thereupon promised payment but tho' after requested non solvit 300 The Defendant Protestando that there is no such Custom for Plea says That one C. an Excise-man paid the Defendant the Money in question being the Kings Money to the intent that it should be paid to the King and the Defendant at C's request drew the Bill That C. was then indebted to the King prout per Record ' Scaccarij 301 That an Extent issued out thereupon ad inquirendum The Writ delivered to the Sheriffs of London An Inquisition taken by them 302 The Money and Bill of Exchange seised and returned into the Exchequer The King became Entituled An Extent issued out to the Sheriff of N. for the levying the Money and the Money paid thereupon Averment of una eadem persona 304 Et una eadem Billa Et una eadem Summa The Plaintiff demurs to the Plea especially Causes of demurrer The Defendant joyns in demurrer 304 Eleven Continuances 304 305 306 The Loquela and Proceedings revived by Act of Parliament 1 W. M. Judgment for the Plaintiff upon the demurrer A Writ of Enquiry awarded 306 The Inquisition return'd Damages found Judgment for the Plaintiff 307 Mill and Toll Vid. Error 1. Outlawry pleaded Vid. Action on the Case 8. Prerogative Process Vid. Action on the Case 3. Error 2. Trover 2. Quantum meruit Vid. Action on the Case 8. R Rent Vid. Debt 3. 8. Replevin 1. THe Plaintiff Declares for taking and detaining 8 Cows c. The Defendant acknowledges the taking as Bayliff to the Dean and Chapter of Canterbury 131 Sets forth that they are Lords of the Mannor of M. That J. S. was seized of the Locus in quo parcel of the said Mannor and held it of the Dean and Chapter by Fealty Rent and Suit of Court Sets forth a Custom for the Lord to have a year and an halfs Rent upon every Alienation and power to distrain for it Shews the Alienation and the Purchasers Entry and that there was so much due for a Fine by Custom and because the same was unpaid the Defendant distrained infra feodum c. 132 133 The Plaintiff demurs to the Conizance The Defendant joyns in demurrer 134 2. Against two Defendants One of which avows the other acknowledges the taking as Baily to the former 145 They set forth that long before the taking R.L. and L.L. were seized in Fee of the Locus in quo and by Deed granted an Annuity to the Ancestor of the Avowant and his Heirs issuing out of certain Lands of which the Locus in quo was parcel with power of Distress Conditionally to be void upon payment of 100 l on a certain day then to come which was not paid c. 146 147 And for six years Rent Arrear the Distress was made which the one Defendant bene advocat and the other bene cognoscit as in the Lands charged with the Distress The Plaintiff demurs to the Avowry and Conizance The Defendants joyn 148 3. The Plaintiff declares for taking his Colt c. 210 The Defendant avows for Damage fesant and sets forth that E. M. being seized in Fee demised the Locus in quo to the Avowant to hold at Will That he entred and was possest and took the Cold Damage fesant prays Judgment and a Return and Costs and Damages according to the Statute The Plaintiff pleads in Bar to the Avowry That E. M. demised the Locus in quo to him before the pretended Demise to the Defendant to hold for 6 years That he entred and was possest and that the Defendant took his Colt there absque hoc that E. M. demised to