a Jury But the Court inclined to grant the Writ for it did not appear that it was parcel of his Tenure but rather imposed upon him by the Custom of the Mannor and if Attorneys shall be discharged of the Service of the Common-wealth à fortiori of any private Service Vid. postea The King versus Webb IN an Action brought against him for imbesiling of the Kings Goods which was laid in the Declaration to be in London it was moved for the King that the County might be changed And the Court held the King might choose his County and might wave that which he had seemed to have elected before as he may wave his Demurrer and joyn Issue contra Perries Case IN an Information of Forgery against him being an Attorney of the Common Pleas it was alledged That he had framed a certain Writing in the Form of a Release at Sherborn and that he published and gave it in Evidence at Dorchester and the Venue came out of Dorchester whereas it was said it ought to have come out of both places To which it was answered That the publishing and not the framing was the Crime But notwithstanding it was held to be a Mis-trial and being in an Information it was not aided by any Statute Postea Anonymus IN Trover and Conversion amongst other things the Plaintiff declared de sex bovibus instead of bobus Vpon Not guilty pleaded and found for the Plaintiff and entire Damages assessed It was moved in Arrest of Judgment That the Jury ought to have given no Damages for bovibus being a word insensible and entire Damages being given it was naught for all To which it was answered That if the word be insensible notwithstanding the Anglice the Jury shall not be intended to have regarded it in the giving of Damages and if it hath a signification then it is well enough And it was said bovibus was an old Latin word and is found in Plautus and 't is bobus only by contraction It was also said That the Plaintiff brought this Action as Executor and the Trover was laid in the Testators time which was not sufficient tho' the Conversion was alledged in his own But the Court held neither of these Exceptions sufficient to Arrest Judgment Rumsey versus Rawson IN Replevin The Defendant Avowed for Damage Feasant The Plaintiff replies That the Parson of such a Parish and all his Predecessors have had time out of mind Common in the place where c. belonging to his Glebe and that the Beasts of the Plaintiff were Levant and Couchant upon the Glebe and he put them into the Common by the Licence of the Parson The Defendant Traverses that they were Levant and Couchant and found for the Plaintiff And it was moved in Arrest of Judgment That the Plaintiff had not alledged matter sufficient to justifie his Beasts going in the Common for no other Beasts ought to be put in the Common but those of the Tenant of the Land to which it is appendant or those which he takes to Compester his Land Fitz. N. Br. 180. b. and that tho' the Common be claimed for a certain number And the Opinion of the Court was That the Defendant might have demurred in this case But after a Verdict the Court shall intend they were Beasts which the Parson procured to Compester his Land and the right of the case is tryed so aided by the Statute of Oxford But they gave further time to shew cause Postea Anonymus AN Action was brought for these words Thou hast received Stoln Goods and knew they were Stoln Alice S. Stole them and thou wert partner with her For the first words the Court held them not Actionable for they might admit for a justifiable construction as if the Goods were waived But the last were holden sufficient for Partner with her must intend Partner in the Felony Skinner versus Gunter al. THe case was moved again by Pomberton and alledged in maintenance of the Action that it was but in the nature of an Action upon the Case for at the Common Law no Writ of conspiracy lay but for indicting one of a capital Crime and that after an acquittal by Verdict But since the Statute of 33 Edw. 1. de Conspiratoribus Actions have been brought for conspiring to Indict one of Trespass or to Sue one maliciously without cause of Action as this case is and so is Br. tit Consp pl. 2. and by F.N.B. 116. Such an Action in the nature of Conspiracy lies against one And the Title of the Action in this Case is In placito transgr super casum and for these Reasons all the Court were of Opinion for the Plaintiff Vid. Ante. Braithwaites Case BRaithwaite brought a Mandamus to the Mayor Bailiffs and Burgesses of the Town of Northampton to be restored to his place of Alderman there They make a Return and in their Return set forth the Letters Patents of 16 Car. by which they were Incorporated and power is given them of holding a Common Council consisting of a Mayor 2 Bailiffs and 48 Burgesses and that the Mayor Bailiffs and such Burgesses as had been Mayors commonly called Aldermen should have power upon just Cause to amove any Common Council Man from his place there and then they set forth how Braithwaite was a Member of the Common Council and had committed divers Offences which they expressed in particular Whereupon the 18 of Dec. 17 Car. the Common Council assembled together summoniri procuraverunt the said Braithwaite and he not coming to answer was the same day amoved ab officio suo loco suo in Communi Concilio per Majorem Burgenses authoritate secundum Chartam praedictam It was also set forth That they had a command from the Kin and Council to amove him Vpon this Return there were four Exceptions taken First That it did not appear that he was summoned for it ought to have been qui quidem Braithwaite postea summonitus fuir and not summoniri procuraverunt Sed non allocatur for it was held clearly to be all one Otherwise if it had been quod procuraverunt J.S. eum summonire A Second Exception was That their proceedings were too quick for they amoved him the same day wherein he was summoned Sed non allocatur for it appearing he lived in the same Town and refused to come to make his defence they might immediately amove him A Third Exception was That they had exceeded their power which was only to amove him from his place in the Common Council and they had amoved him from his Office Sed non allocatur for 't is that wherein his Office consists and indeed it was so averred in the Return But the main Exception was For that they had not as was alledged pursued their Authority for the Mayor and such Burgesses who had been Mayors have power given them to amove And here the Amotion is said to be per Majorem Burgenses so that it might be by
remedied either by the words or intention of the Act. Vid. Ante. Nokes and Stokes versus .... THey two brought an Action of Debt upon a Bond. The Defendant pleads the Release of one of the Plaintiffs They pray Oyer of the Release which was of all Actions Suits c. that he had against the Defendant upon his own account and pleads that this Bond was not upon his own account and upon this Issue is taken and found for the Plaintiff Now it was moved in Arrest of Judgment That this Issue was frivolous And upon the whole matter it appears that the Plaintiffs have no cause of Action for the Release of one Obligée dischargeth the Bond and it must be upon his own account But the Court Seriatim delivered their Opinions for the Plaintiffs for he might take this Bond as a security of a Debt with which he was intrusted for another And the truth of the case upon the Evidence was That the Defendant being charged with the payment of divers Legacies to Strangers was requested by one of the Plaintiffs to enter into Bond to him and the other Plaintiff who afterwards made the Release that should be Conditioned for the payment of the Money Bequeathed to the Obligees to the use of the Strangers which not being done the Defendant was Arrested at the Suit of the Plaintiffs this being made known to the Plaintiff who was absent at the taking of the Bond and knowing nothing of the Suit was contented to Release all Actions he had against the Defendant upon his own account King versus Atkins DEbt upon a Bond of 2000 l The Defendant demands Oyer of the Condition which was That whereas the Plaintiff was bound with the Defendant to the King that the Defendant should give a true account of such Moneys as he should receive for the Excise and Chimney Money And that the Defendant should save him harmless from all Payments or Suits upon that Bond and pleads that no Suits Process or Execution was against the Plaintiff upon that Bond issint he saved him harmless The Plaintiff replies a Scire facias issued against him out of the Exchequer upon the Bond and that he was forced to retain an Attorney and that he paid 1 s for his Appearance To this the Defendant Demurrs Because he did not alledge that he gave him notice And this was said not to be like Broughtons Case 5 Co. For there the Defendant knew the Money was to be paid at the day and it was to save him harmless from the single thing but here from a great many so that it was requisite he should have notice Where the Mesne is bound to acquit the Tenant the Tenant shall not recover Damages unless he gives the Mesne notice that he is distrained so that he may Replevy the Beasts But it was said That no notice ought to be given where the thing is an Act of a third person as to pay Money when J. S. comes into England To which it was answered That did not lie in the Conusance of either Party but this was in the notice of the Obligée But that which séemed most against the Demurrer in this case was That the Defendant having pleaded no Process c. he takes upon him the knowledge of it Vid. 1 Cro. 54. And if in the Replication the Plaintiff had alledged notice and the Defendant had Traversed it it would have been a departure and the Court advised until the next Term. Postea Welsh versus Bell. TRespass quare clausum fregit and taking of two Horses out of his Cart The Defendant justifies the taking of them as a Distress for Rent due to him And to this the Plaintiff Demurrs First He could not sever the Horses but ought to have distreined Cart and all according to the Book of 20 Edw. 4. 3. Distress of a Cart loaden with Corn Rolls 270. 3 Cro. 783. and four Horses in it adjudged not excessive because he could not sever the Horses And in 3 Cro. 7. a Difference is taken between Distress for Rent and Damage Feasant to this purpose And the common ground is that a Distress must be taken so as it may be returned in the same plight 1 Inst 47. a. Secondly It appeared also in the Declaration That there was a Servant of the Plaintiffs in the Cart by reason of which it was alledged that the Cart and Horses were priviledged for a Horse cannot be distrained upon which a Man is Riding 3 Cro. 549 596. Ed Adjornatur Twisden cited a Case adjudged before Rolls Chief Justice in Trespass for taking of his Trunk The Case was the Defendant distrained it for Rent and being Informed that there were things of Value in it he caused it to be Corded to prevent damage And for that he was adjudged a Trespasser ab initio Anonymus AN Action on the Case was brought against the Defendant for taking and keeping of the Plaintiffs Wife from him And upon Issue joyned the Court was moved to defer the Trial the Case being that the Wife was Daughter of the Defendant and taken from him by the Plaintiff without his Consent and as the Plaintiff affirmed Married to him Now this Marriage was questioned in the Court Christian And the Court thought it reasonable that the Trial should be delayed until the Marriage was determined there But they were Informed on the other side that the Court were ready to give Sentence That the Marriage was good and the Defendant had Appealed Wherefore they thought fit that the Trial of the Cause should proceed The King versus Nelson AN Order for the keeping of a Bastard Child being removed by Certiorari it was moved to have it quashed because it was ad Sessionem pacis in Com' praed ' and doth not say Tent ' pro ' Com' praedict ' Sed non allocatur For such strictness is not required in an Order But Twisden said it ought to be so in an Indictment It was further alledged that it ought to appear That the Child was likely to be chargeable to the Parish which was agreed But that was sufficiently set forth in the Order for upon Reading of it it appeared that he was ordered to pay such Charges as the Parish had been at Wherefore the Court confirmed the Order and awarded that he should pay such Costs as the Parish had been at for Contesting of it as was done formerly in one Haslefoot's Case And besides the Court Committed Nelson Anonymus DEbt upon a Bond Conditioned to perform Covenants If the Defendant pleads performance without demanding Oyer of the Indenture it is a good cause of Demurrer Anonymus IN Covenant the Plaintiff declares That he let the Defendant a House and that he Covenanted to Repair it The Defendant pleads That it was sufficiently Repaired before the Action brought The Plaintiff Demurs because he doth not plead That he Repaired it for it may be the Plaintiff himself did it Keeling and Raynsford inclined against the Demurrer because if it were Repaired be it by any Body the Plaintiff hath no Damage nor cause of
constant Practice Secondly There was no good Trial for there is an Award of a Venire facias but no Writ certified But this was also Over-ruled for it is the Course of the Assizes not to make out any Writ Thirdly Issue is joyned by the Clerk of Assize which the Court said ought to be for he is Attorney General there Parker versus Welby THe Plaintiff brought an Action upon the Case against the Defendant and Declared that he Sued out a Latitat against a third Person directed to the Defendant being Sheriff who thereupon Arrested him and after let him go at large And then he Returned a Cepi Corpus paratum habuit ubi revera he had not his Body at the Day To this Declaration the Defendant Demurred supposing that no Action would lye for this False Return for the Statute of 23 H. 6. obliges the Sheriff to let to Bail and if he hath not the Body at the Day he is to be amerced But the Court were of Opinion for the Plaintiff For it shall be intended that he let him go without Bail and if he did not he ought to have pleaded the Statute of 23 H. 6. which is a Private Law And at the Common Law a man could not be let at large in such case without a Homine Replegiando Or else he might have pleaded Not Guilty and given the Statute in Evidence And so it is Adjudged in Layton and Gardiner's Case 3 Cro. 460. So Moor placito 996. 2 Cro. 352. and 3 Cro. 624. Where the Defendant pleaded That he let to Bail according to the Statute and the Plaintiff was barred Twisden cited a Case in this Court Paschae 21 Car. 1. Rot. 616. between Franklyn and Andrews where the Plaintiff Declared as in this Case And the Defendant pleaded the Statute and that he let him at large upon Sureties and traversed absque hoc that he returned his Writ Aliter aut alio modo To which the Plaintiff Demurred It was Resolved First That the Sheriff could Return nothing but Cepi Corpus And he was then amerced because he offered to make a Special Return Secondly That where the Sheriff let the parties out to the Bail and he made such Return that it was no False Return and therefore he should not have traversed Absque hoc that he Returned Aliter vel alio modo As in Maintenance where the Defendant Iustifies for that the party could not speak English and therefore he went with him to instruct his Counsel He shall traverse Absque hoc that he maintained Aliter because that he maintained Would not do tho' it be justifiable So in that case the Court ordered it to be Entred upon the Roll that Judgment was given for the Plaintiff quia Traversia fuit mala So here they Ordered it to be Entred because the Defendant did not plead the Statute of 23 H. 6. Hocking versus Matthews AN Action upon the Case was brought for Maliciously Impleading and causing him to be Excommunicated in the Ecclesiastical Court whereby he was taken upon an Excom ' Cap ' and Imprisoned until he got himself absolved The Defendant pleaded Not Guilty and found against him And it was afterwards moved in Arrest of Judgment that the Declaration was not good for no Action will lye for suing a man in the Spiritual Court tho' without cause no more than in Suing in the Temporal Courts For Fitz. N. B. is That a man shall not be punished for bringing the Kings Writs So Hob. Waterer and Freeman's Case And it hath been lately held that no Action will lye for an Indictment of Trespass tho' falso but an Action of the Case will lye for suing in Court Christian for a Temporal Cause But the Court in this Cause gave Judgment for the Plaintiff For tho' in an Action between party and party in the Ecclesiastical Court where if the matter goes for the Defendant he shall have his Costs no Action will lye if the Court hath Iurisdiction Yet where there is a Citation ex Officio and that is prosecuted malicously without ground the Party shall have his Action for in such Suit he can have no Costs And so is Carlion and Mills's Case Adjudged 1 Cro. 291. And this shall be so intended after the Verdict or otherwise the Defendant should have shewed it to be otherwise and Iustified And Rainsford said without Cause shall be understood without any Libel or Legal Proceedings against him Anonymus IN Debt upon an Obligation to perform an Award which was to pay the Rent mentioned in such an Indenture He that pleads performance of this Award needs not set forth the Indenture but refer generally to it But if it be to be paid in such manner and at such times as is expressed in the Indenture then it must be set forth at large The like of an Award of payment of Money given by a Will Wilson versus Armorer THe Case was Argued again this Term by Coleman for the Plaintiff who Argued that the Exception takes the two Closes wholly out of the Grant and that no modification can be annexed to it 3 Cro. 657. and Moor Pl. 747. A Lease was made for certain Lands excepting a Close and Covenants were for quiet Enjoyment of the Premisses The Lessee disturbed the Plaintiffs possession in the Close excepted yet he could not bring a Writ of Co-venant for by the Exception it is as much as if it had been never mentioned and in this Case the Livery being secundum formam Chartae could not work upon these Closes The Case of Hodge and Crosse cited in Hob. 171. was this A man gave Lands to another Habendum to him and his Heirs after the death of the Feoffor and Livery secundum formam Chartae Resolved a void Feoffment and relyed upon the Case in 1 Anderson 129. as full in the Point A Lease of an House excepting a Chamber pro usu suo proprio occupatione It was held that he might assign Weston ê contra This Exception is altogether void for it cannot be for the Life of the Feoffor only Bro. tit Reservation 13. and it shall not except the whole Fee against the Intention of the Parties for then the Ill wording of his Exception should give him above twice as much as otherwise be should have had and it is but one entire Sentence and taking it altogether it must have an effect which the Law doth not admit and is therefore to be wholly rejected As where a man grants his Term after his death the Grant is void Otherwise where he grants his Term habendum after his death for there the last Sentence is rejected Hob. 171. The Case of the Exception of the Chamber is not alike for excepting it for his own use are apt words to give him power to dispose of it at his pleasure Keeling Rainsford and Moreton held the Exception good for the entire Fee Twisden That it was wholly void because one Sentence Plus Postea Sympson versus Quinley
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
Action for saying Go tell the black Knave Roberts That I will teach him or any Attorney in England to sue out a Writ against me and he had Judgment for it was as much as to call him Knave Attorney Hill 22 23 Car. 2. Rot. 1426. Methin and the Hundred of Thistleworth AN Action was brought upon the Statute of Winton The Defendants pleaded that they made Hue and Cry and that within 40 Days they took one Dudley which was one of them that did the Robbery and had him in custody The Plaintiff Replied That Dudley was not taken upon their fresh pursuit modo forma And upon this Issue the Jury find a Special Verdict to this effect That the Hundred made Hue and Cry and that Sir Joseph Ash finding Dudley in the presence of Sir Philip Howard a Justice of the Peace of Westminster at his House in Westminster the said Sir Joseph being an Inhabitant in the Hundred of Thistleworth charged Dudley with this Robbery before Sir Philip who promised he should appear at the Sessions at the Old Baily And whether this be such a Taking as is put in Issue they referred to the Iudgment of the Court. Jones for the Plaintiff Argued That in this Case there doth not appear to be any Taking at all but only a Discourse between Sir Joseph Ash and Sir Philip Howard As admitting the Issue were Whether a man were Arrested or no and it should appear upon Evidence that one should come to the Sheriff and declare That he had a Writ against such a man then present and upon this the Sheriff should say I will take his word for his Appearance this clearly could not be taken for an Arrest Again The Issue is Whether he were taken upon the fresh pursuit of the Hundred and it doth not appear by the Verdict that there was any Hue and Cry made this way and it might be ceased before this time But it seems rather that Sir Joseph Ash found him by accident But the Opinion of Hales Chief Justice Twisden Rainsford and Moreton was that Judgment ought to be given for the Defendant For the charging of Dudley with the Robbery in the presence of a Justice of the Peace was clearly a Taking within the Statute For being in the presence which the Law construes to be under the Power or Custody of the Magistrate it would have been vain and impertinent to have laid hold of him and it shall be intented that this was upon Fresh pursuit For when the Verdict refers one Special Point to the Iudgment of the Court all other matters shall be intended And the Chief Justice said That if the Hue and Cry was made towards one part of the County and an Inhabitant of the Hundred apprehended one of the Robbers within another yet this was a Taking within the Statute Hornsey Administrator of Jane Lane versus Dimocke THe Plaintiff as Administrator of Jane Lane brought an Assumpsit and declared that he had formerly deposited such a Sum in the Defendants hands for the use of the Intestate Jane Lane in Consideration whereof the Defendant promised to the Plaintiff that he would pay it her or if she died before 18 years of Age that he would pay it to her Executors And shews that she died before 18 and that he had not paid it to the Plaintiff her Administrator licet saepius requisitus Vpon non Assumpsit a Verdict was for the Plaintiff It was moved in Arrest of Judgment that the Plaintiff brought this Action as Administrator which ought to have been in his own right for the Promise was made to him Sed non allocatur For if a man names himself Executor or Administrator and it apears the Cause of Action is in his own right it shall be well enough and he calling himself Executor c. is but Surplusage But here it seemeth Jane Lane might have brought an Assumpsit because she was the party to whom the Money was to be paid So it is good either way It was further Objected That it was not averred that the Defendant did not pay the Money to Jane Lane during her Life Sed non allocatur For 't is aided by the Verdict As the Chief Justice said a Case was Adjudged where an Assumpsit was brought upon a Promise to pay Money to two or either of them and declared that the Money was not paid to the two and not said or either of them yet Resolved to be good after Verdict Matthewes versus Crosse IN Debt for Rent the Plaintiff Declared That by an Indenture made in the Parish of St. Mary Undershaft London he Let an House to the Defendant situate in parvo Turris monte reserving so much Rent c. The Defendant pleads That before the Rent incurred the Plaintiff entred into a certain Room of the said House apud parvum Turris montem praedict ' and so suspended his Rent upon which it was Demurred And it was shewn for Cause That no place was alledged where the Entry was but said to be at Little Tower-Hill which cannot be intended a Vill. And a Case was cited of an Indictment in this Court of a Fact laid to be done at White-Hall and quashed for want of Place And to this the Court inclined but the Matter was ended by Comprimise ' Anonymus A Prohibition was prayed to a Suit for a Pension in the Ecclesiastical Court surmising that the Lands out of which it was demanded were Monastery Lands which came to the King and that he granted the Lands c. under which Grant the Plaintiff claims and that he Covenanted to discharge the said Lands of all Pensions c. and this upon the Statute of 34 H. 8. cap. 19. which appoints the Suit to be for Pensions in such cases in the Court of Augmentations and not elsewhere But the Court would not grant it until the Letters Patents of Discharge were produced being a matter of Record But where the Surmise is of matter of Fact it is sufficient to suggest it And it was said by the Court That Pensions whether by Prescription or otherwise might be sued for in the Ecclesiastical Court but if by Prescription then there was also Remedy at the Common Law F.N.B. 50. 1 Cro. 675. Davis versus Wright al' HIll 22 23 Car. 2. Rot. 701. In an Assumpsit the Plaintiff declared That his Father gave him by his Will 3 l per annum during his Life and that he was about to Sue for it and that the Defendants being Executors to the Father in Consideration that the Plaintiff would forbear to commence a Suit against him for it promised to pay him The Defendants plead That the Testator was indebted in divers Sums and ultra to pay them he had no Assets To this the Plaintiff demurred for that by this Promise the Defendants have made it their proper Debt But it was said on the other side That if there were no Assets there was no cause for the Plaintiff to have commenced
King by general words of all Land c. Conditions c. 3 Co. 2. a. b. much less could it pass from the King if it could pass at all by general words but I rest upon this First That it is a Power or kind of Trust to revoke but no Condition Secondly At least not such a Condition as is given to the King Thirdly If it were it ought to have béen executed by the same means as it should have béen by S. M. In Englefields Case there was no pretence to have more than to execute the Condition it ought here to have béen executed in the Life of S. M. and so it appears to be done in Englefields Case and Harding and Warners Case for I caused the Cases to be searched This is like the Case of the Statutes of 15 R. 2. cap. 5. 1 R. 3. cap. 1. 19 H. 7. cap. 15. these Statutes give the same advantage to Lords c. where persons have Uses in Lands respectively as if they had the very Lands but the Lord's c. cannot thereby claim any greater Interest than the cestuy que Uses had respectively in the Uses Now in this Case The Body of the Act and the Proviso fetch back and save the Trusts for all but S.M. As to the Execution for the Kings Debts it differs for the Process for they ever did and do run de terris de quibus illi aut aliquis ad eorum usum c. 'T is true in Sir Charles Hattons Case it was resolved That the Kings Debr should be executed upon Land wherein he had a power of Revocation Vid. Chirtons Case 11 Co. 92. And so Iudgment was affirmed per toram Curiam Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Anonymus IN Debt upon a Bond. After Verdict for the Plaintiff the Judgment was entred quod recuperet the Sum pro misis custag ' instead of pro debito praed ' But this was ordered to be amended as the default of the Clerk tho' in another Term The Court having power over their own Entries and Judgments Anonymus IN an Account it was held by the Court that if a man delivers Money to his Bayliff or Factor to lay out for him in Commodities he cannot bring an Assumpsit but only his Action of Account For the Chief Justice said that he knew such an Action once brought and the Jury that were to try the Cause informed him That if they should Examine all the Accounts which were between the Plaintiff and Defendant it would take up three or four days time So that it hath been always holden that in such case he should be driven to his proper Remedy which is an Action of Account and it may be the Factor hath laid out more Mony that he received Eaton versus Barker IN an Action upon the Statute of 17 Car. nunc for residing in a place where he had formerly kept a Conventicle and demands the 40 l penalty After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Costs or Damages given For it was said that where a Statute gave a certain Penalty if this be not paid upon demand he that sues for it shall recover his Costs and Damages as North and Wingate's Case in the 3 Cro. 559. is But the Court held that they ought not to be given in Actions Popular whether the Forfeiture be certain or not but where a certain Penalty is given to the party grieved there he shall recover his Costs and Damages 10 Co. 116. Vide postea Polexphen versus Polexphen IN a Prohibition the Case was that Henry Polexphen died Intestate Andrew his Brother gets Letters of Administration in the Inferiour Diocess One who pretended to be the Wife of H. surmizing Bona notabilia procured Administration from the Prerogative Court Andrew appeals to the Delegates and dies Henry his Son and Heir comes in and gets the Administration committed in the Prerogative Court Repealed and hath Letters granted to himself Vpon this the Wife prayed a Prohibition supposing that the Delegates could not proceed after the death of Andrew but that their Commission was determined For their Authority is by that to proceed in a Case between such parties one of which is dead To which it was Answered That the Commission is to hear and determine the Cause And both in the Civil and Ecclesiastical Law the Suit shall continue after the death of either party for those which shall be concerned as appears by the Bishop of Carlisle's Case in 2 Cro. 483. and in the 1st Leonard 117 and 178. it is said That if one party dies ante litis conrestationem then it shall abate but if after it is otherwise And there are a number of Presidents of this nature both in the Arches and Admiralty Courts c. And in this very Case Henry Polexphen having obtained Administration de bonis non of his Vncle Andrew in the Country the now Plaintiff got it set aside by the Delegates because granted while an Appeal was depending and that upon full debate before them who would yet now suggest that the Appeal was determined by the death of Andrew The Court were of Opinion that no Prohibition was to be granted and that the Delegates Authority to proceed in that case continued notwithstanding the death of Andrew For the Commission is to proceed in causis Administration c. una cum suis incidentibus vel annexis qualitercunque c. Summariè juxta Juris exigentiam So that the Ecclesiastical Law is appointed to be their Rule by the course of which a Suit doth not abate by the death of the parties And Hale said The Appeal is to the King in Chancery and it is by reason of his Original Jurisdiction and thereupon he grants a Commission to hear it Now if he could hear it in Person none could object but that he might determine the Cause after the death of the parties and by the same Reason they may to whom he hath delegated his Authority But the Attorney General coming in and desiring to be heard in it for the Plaintiff the Court gave further time Eaton versus Barker THe Case was now moved again upon the Statute for coming to a place where he had formerly Preached in a Conventicle And Exception was taken to the Declaration For that it was not averred that the Defendant was in Holy Orders For the words of the Statute are That if any one that hath been Parson Vicar Lecturer c. or within Holy Orders and have taken upon them to Preach c. But to this it was Answered that there is another Clause in the Act That all such persons as shall take upon them to Preach c. which is general and extends to all men whether in Orders or no which have been Preachers And of that Opinion were the Court. It was also Objected That there was no Averment That the Defendant was not there upon Summons Sub
same Goods before which Action is still depending And demanded Iudgment of the Writ The Plaintiff Replied That the other two died before the Action was brought and so that Writ abated To which it was Demurred and Iudgment quod respondeat ouster For in all Actions where one Plaintiff dies the Writ abates save in an Action brought by two Executors And Hale said So it should in a Quare Impedit but that it is revivable by Journeys Accounts Wild said That the Pleading That the Two died before the Action brought was double Hale No for he must shew both were dead to enable him to bring this Action alone Twisden How comes this Plea in Abatement after an Imparlance Hale Tho' after an Imparlance the Defendant cannot plead a Misnosmer or the like or Ancient demesne because he admits he ought to answer the Writ yet such a Plea in Abatement as this he may But that comes not in question because the Plaintiff Replied to it and did not Demur Nota Debt for Rent in the Detinet against an Executor shall be brought where the Lease was made because 't is for the Arrears in the Testators time But where 't is in the debet and detinet viz. for Rent incurred in the Executors time it must be where the Land lies And so Agreed by the Court. Nota No Tythes to be paid for Pasture wherein the Plow-Horses are fed And Hale said So it is of Saddle-Horses Anonymus A Foreign Attachment in an Inferiour Court was pleaded in this manner That by Custom time out of mind whoever Leavied a Plaint pro aliquo debito against another upon Surmize That a Stranger was Indebted to the Defendant that Process issued forth to attach c. Against this Pemberton Objected That it was not said pro aliquo debito which did arise infra Jurisdictionem Curiae The Court said that they need not express that the Debt did arise infra Jurisdictionem for perhaps it did not And yet if an Action be brought in such case and the Debt be laid to be Contracted infra Jurisdictionem Curiae if the Defendant will plead to it he may but he shall never be admitted to assign for Error in Fact that the Debt did arise extra Jurisdictionem Curiae But if he had tendred such a Plea in the Inferiour Court upon Oath then if they had refused it it would have been Error Wherefore 't is enough in this case to say If a Plaint were Levied pro aliquo debito infra Jurisdictionem without averring that the Debt did arise within the Jurisdiction Also there cannot be a Custom for a Foreign Attachment before there be some Default in the Defendant Wherefore the Pleading was there held to be Ill. Mosdel the Marshal of the Court against Middleton IN Debt upon a Bond with Condition to be a true Prisoner and to pay him so much by the week for Chamber Rent To this was pleaded the Statute of 23 H. 6. And the Court resolved it was void by that Statute Hale said a Bond for true Imprisonment is good prima facie but the Defendant may aver that it was also for ease and favour And so it was adjudged in Sir John Lenthals time who brought Debt upon a Bond of 2000 l and the party pleaded That it was taken for ease and favour and upon the Tryal it appeared That after that Bond the Defendant was permitted sometimes to go into the Country with a Keeper whereas before he was kept strait Prisoner and upon this matter the Bond was ruled to be void Twisden cited my Lord Hob. That a Gaoler could not take a Bond of his Prisoner for a just Debt Hale That seems hard because he takes it in another capacity But he cannot take a Bond for his Fees because it would give him opportunity to extort Also here part being against the Statute it avoids all but the Condition of a Bond or Covenant may in part be against the Common Law and stand good in the other part Hob. Cox versus Matthews IN Action for a Nusans in stopping of the Lights of his House Exception was taken to the Declaration for that he did not say autiquum Messuagium and yet it was ruled to be good enough for perhaps the House was new Built And the truth of this Case was said to be that the Defendant had Built the House and Let it to the Plaintiff and would now go to stop up the Lights Hale said if a Man hath a Watercourse running thorough his Ground and erects a Mill upon it he may bring his Action for diverting the Stream and not say antiquum molendinum and upon the Evidence it will appear whether the Defendant hath Ground thorough which the Stream runs before the Plaintiffs and that he used to turn the Stream as he saw cause for otherwise he cannot justifie it tho' the Mill be newly erected Watson versus Snead IN Debt for 20 l the Plaintiff declared that the Defendant concessit se teneri per scriptum suum Obligatorium c. the words of the Deed were I do acknowledge to Edward Watson by me twenty pounds upon Demand for doing the work in my Garden Vpon a Demurrer to the Declaration it was adjudged a good Bond. Morse versus Slue THe Case was argued two several Terms at the Bar by Mr. Holt for the Plaintiff and Sir Francis Winnington for the Defendant and Mr. Molloy for the Plaintiff and Mr. Wallop for the Defendant and by the Opinion of the whole Court Iudgment was given this Term for the Plaintiff Hale delivered the Reasons as followeth First By the Admiral Civil Law the Master is not chargeable pro damno fatali as in case of Pirates Storm c. but where there is any negligence in him he is Secondly This Case is not to be measured by the Rules of the Admiral Law because the Ship was infra corpus Comitatus Then the First Reason wherefore the Master is liable is because he takes a Reward and the usage is that half VVages is paid him before he goes out of the Country Secondly If the Master would he might have made a Caution for himself 4 Co. Southcotes Case which he omitting and taking in the Goods generally he shall answer for what happens There was a Case not long since when one brought a Box to a Carrier in which there was a great Sum of Money and the Carrier demanded of the Owner what was in it who answered That it was filled with Silks and such like Goods of mean value upon which the Carrier took it and was robbed And resolved that he was liable But if the Carrier had told the Owner that it was a dangerous time and if there were Money in it he durst not take charge of it and the Owner had answered as before this matter would have excused the Carrier Thirdly He which would take off the Master in this Case from the Action must assign a difference between it and the Case of
Specie when the Estate is determined The Case of Captain C. A Captain of a Company in Colonel Russel's Regiment of Foot Gaurds and a Serjeant of his Company were brought into Court upon the Prosecution of the Sheriffs and other Citizens of London and the Offence alledged and moved against them was this That one Danbert a Butcher and Freeman of London who had Broke having Listed himself a Souldier in this Company and being afterwards Arrested in London for Debt and laid in the Counter and thereof he having given the Captain private Notice the following Design was resolved and executed for his Rescue viz. There being a Priviledge belonging to the Freeman of London that they may by a Customary Precept or Warrant called a Duci facias but by the Common People called a Horse remove themselves from any other Prison where they are in London to Ludgate where it seems they have better Accommodation there being Maintenance allowed to the Prisoners of that place Such an one Danbert got and gave Notice to the Captain at what time he should be carried from the Counter to Ludgate thereby Before this time the Captain commanded this Serjeant to take twenty or thirty Soldiers with him and Way-lay the Prisoner and Rescue him from the Bayliffs and Officers of the Counter as they were bringing him along Accordingly the Serjeant and Soldiers went and lay in or near an Alehouse about Popes-head Alley in Ambuscade till the Prisoner should be brought by And when they had Notice from one who they had placed as Centinel that he was coming they sallied out and drew their Swords for the Serjeant had given them order so to do and if any opposition were made they should kill the first Man And by this means they Rescued him and carried him away Hereupon Complaint being made to the Captain He Answered That his Soldiers had done well and he would Justifie it The Court asked him what he had to say in his Iustification He said That he did not know the Law but he ever thought that a Soldier could not be Arrested without leave of his Officer and that there was an Agreement to that purpose between the late Lord General and the former Lord Chief Justice and that he knew one that had done the like thing and nothing was said to him for it Hale Chief Justice to whom the rest agreed said The more wrong has been done It seems you are grown very Dead-strong but you ought to know that every Officer and Soldier is as liable to be Arrested as a Tradesman or any other person whatsoever and you ought to give full Obedience to the King's Commands signified by his Writs or Process Wild said That that may be served upon you when you are in the Head of your Company Hale said further You are the Kings Servants and intended for his Defence against his Enemies and to preserve the Peace of the Kingdom not to exempt your self from the Authority of the Laws And indeed it were a vain thing to talk of Courts and Laws if Military Men shall thus give the Law and controll Proceedings And for that Agreement you speak of I know nothing of it and if there were any such thing it could be nothing but a Civility Whatever you Military Men think you shall find that you are under the Civil Jurisdiction and you but gnaw a File you will break your Teeth e're you shall prevail against it This is an Outragious Offence and the Punishment has formerly gone high Men have heretofore lost their Heads for Matters of such nature and one of the Crimes of the late London Apprentices was the breaking of Prisons and delivering of Prisoners for which they had Iudgment of High Treason by the Advice of all the Judges The Captain and Serjeant were Committed to Newgate and being brought up at another time Hale asked Why an Information against these Persons was not Exhibited And told the City Counsel that if the Sheriffs did not prosecute this business they the Court would Prosecute them for this was a matter of great Example and ought not to be smothered And further said If that Men will take upon them to Rescue all Soldiers that are Committed it may be within the reach of High Treason because of the Vniversality of the Design against the King's Athority But this being but for one particular it cannot be Treason but 't is a rank Misdemeanour And be Ordered that as many of the rest of the Soldiers should be Prosecuted as their Names could be learned There must be one more to make a Riot tho' however 't is a Misdemeanour Wild said Tho' they cannot find out another Name yet if it be set forth and made out that there were others 't is enough to make a Riot Termino Sancti Hillarij Anno 25 26 Car. II. In Banco Regis NOte When a Prohibition is moved for that a Copy of the Libel is denied to be delivered The Court requires that Oath should be made of the Denial and the Prohibition is but quousque a Copy be delivered Anonymus AN Indebitat ' Assumpsit was brought for Money Lent The Defendant pleads a Tender which being offered at first before Action brought and acknowledged by the Plaintiff he can never recover any Costs The Plaintiff Replies That before the Tender he brought an Assumpsit in the Sheriffs Court upon a Plaint upon the same Cause of Action which was removed hither The Defendant Rejoyns that upon that Plaint he declared for a greater Sum. To which the Plaintiff Demurred For tho' there be a Variance in the Sum yet it might be averred to be the same Cause of Action And so the Court agreed And Hale put this Case A. in Consideration that B. would marry his Daughter promised to pay 100 l and in an Action brought the Plaintiff was barred and in another Action brought The Promise was laid to pay the 100 l at Request and held it could not be averred to be the same Anonymus Note Where Error is assigned in a Matter contrary to the Record in nullo est Erratum is a Demurrer So where Matter of Fact is insufficiently alledged But if a Matter of Law and Matter of Fact together well set forth be assigned which ought not to be there in nullo est Erratum will be a Confession of the Matter of Fact and not serve as a Demurrer for the Doubleness Wherefore in that case the Defendant must Demur Anonymus ONe having Rent payable Half yearly for a Term whereof about six years were to come was content to Release it upon a Bond Conditioned for the payment of the like Sum with the Rent and at the same times And in Debt upon the Bond after failure of Payment upon a Reference to the Secondary to state what was really due He asked the Opinion of the Court whether there should be any deduction for Taxes And the Court said it was Equitable they should be allowed in regard the Money in the
excused yet 't is merely void as to the Party Et Ad jornatur Norton versus Harvey THe Case was an Executor being possessed of a Term let part of it reserving a Rent and died And the Question was whether his Executor should have the Rent or the Administrator de bonis non It was argued for the Executor that this Rent is meerly due by the Contract and not incident to the Reversion and the Administrator is in Paramount it being now as if the Testator had died Intestate and therefore before the Statute of this King such Administrators could not have had a Scire facias upon a Judgment obtained by the Executor tho' in the Case of Cleve and Vere 3 Cro. 450 457. 't is held that he may have a Liberate where the Executor had proceeded in the Execution of a Statute so far as an Extent for there the thing is executed and not meerly Executory as a Judgment If a Man that hath a Term in the right of his Wife le ts part of it reserving a Rent the Wife surviving shall not not have the Rent On the other side it was said that this case differed from that because the Reservation here is by him that had the whole Right executed in him Another objection against the Action was that here in the Declaration being in Covenant for Non payment of Rent there is not any demand alledged But that was answered because the Covenant was to pay such a Sum for the Rent expresly but if the Condition of a Bond be for performance of Covenants expressed in such a Lease one of which is for payment of Rent in that case the Bond will not be forfeit without a demand and of that Opinion were the Court and that the Executor should have the Rent but when recovered Hale said it should be Assets in his Hands And accordingly Iudgment was given for the Plaintiff Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Silly versus Silly DOwer of 300 Acres of Land 200 Acres of Pasture 100 Acres Meadow The Tenant pleaded Non Tenure The Jury found him Tenant as to 320 Acres of Land and as to the rest that he was not Tenant And the Iudgment was that the Demandant should recover the 320 Acres Error was assigned in this Court that the Verdict and Judgment were for more Acres of Land than were demanded But on the other side it was said Land was a general word and might include Meadow and Pasture Curia In a Grant Land will extend to Meadow Pasture c. but in Pleading it signifies Arable only and here in regard they are distinguished in the Count the Verdict and Judgment must be reversed for the whole Tho' Hale said antiently such Iudgment would have been reversed but for the surplusage Vid Post Batmore Vxor versus Graves TRover for a 100 Loads of Wood upon a Special Verdict the Case was this Copyhold Land was surrendred to the use of J. S. for years Remainder to the Brother of the Plaintiff's Wife who died before the Term expired and so was not admitted any otherwise than by the admission of the Tenant for years And it was resolved First That the admittance of him that had the Estate for years was an admittance for him in the Remainder 4 Co. 23. a. 3 Cro. 504. Fine sur Grant and render to A. for Life Remainder to B. Execution sued by A. serves for B. So an Attornment to Tenant for Life serves for him in Remainder and this brings no prejuduce to the Lord for a Fine is not due until after admittance and the Lord may Assess one Fine for the particular Estate and another Fine for the Remainder But Wild said he need not pay it until his Estate comes in Possession after a Surrender the Estate remains in the Surrender before admittance of the Cestuy que use yet where Borough English Land was Surrendred to the use of J. S. and his Heirs and he died before admittance It was held that the younger Son should have it Secondly It was resolved that the Possession of the Tenant for years was so the Possession of him in Remainder as to make a Possessio Fratris But then it was moved that the Conversion was laid after the Marriage and so the Feme ought not to have joyned with her Husband in the Action But the Court held that in regard the Trover was laid to be before the Marriage which was the inception of the cause of Action the Wife might be joyned as if one has the Custody of a Womans Goods and afterward Marries her she may joyn in Detinue with her Husband for in case of Bailment the Proprietor is to some purposes in Possession and to some out of Possession Hale said in this case the Husband might bring the Action alone or joyntly with his Wife And so Iudgment was given for the Plaintiff Anonymus IN Debt upon a Bond the Condition was to save the Obligee harmless from another Bond. The Defendant pleaded Non damnificatus The Plaintiff replies that the Money was not paid at the day and he devenit onerabilis and could not attend his business for fear of an Arrest The Defendant rejoyns that he tendred the Money at the day absque hoc that the Plaintiff devenit onerabilis to which it was Demurred and the Iudgment was given for the Plaintiff for the Money not being paid at the day the Counter Bond is forfeited Vid. 1 Cro. 672. 5 Co. and the Traverse in this case is naught The Mayor and Commonalty of London versus Dupester IN Debt for a Duty accruing to the City for Timber imported called Scavage The Declaration was that they were and had been a Corporation time out of mind and their Customs were confirmed by Act of Parliament Temps R. 2. c. The Defendant tendred his Law and Co. Entries 118. was cited where in Debt for an Amerciament in a Court Baron tho' the imposing of it was grounded upon a Prescription yet Wager of Law was admitted But notwithstanding in this case the Court overruled the Wager of Law for here the Duty it self is by Prescription and that confirmed by Act of Parlimant Debt for a Duty growing by a By-Law if the By-Law be Authorised by Letters Patents no Wager of Law lies So in Debt for Toll granted by Letters Patents 20 H. 7. Termino Sancti Michaelis Anno 26 Car. II. In Banco Regis Silly versus Silly THe Case was moved again And the Court said that the Demandant might have taken Judgment for the 300 Acres only habito nullo respectu to the rest and released all the Damages But this was not proper for an Amendment the Mistake being in the Verdict but if it could have been amended in the Common Bench the Court might here have made such Amendment Ante. Burfoot versus Peal A Scire facias was brought against the Bail who pleaded that the Principal paid the Debt ante diem impetrationis Brevis
Vpon which it was Demurred Jones Sollicitor for the Defendant said Tho' the Bail may plead payment because the Condition of the Recognizance is in the Disjunctive viz. for rendring the Body or paying the Money yet the Principal cannot Also it ought to have been pleaded to be paid before a Capias ad satisfaciendum taken out for as it is it may be after the Recognizance forfeited As if the Death of the Principal be pleaded it must be alledged to be before the Capias ad satisfaciendum taken out But the Court held it to be well enough For if that matter be material 't is to come on the other side and ex gratia Curiae the Bail has time to save himself before the Return of the second Scire facias Anonymus IN an Assumpsit the Plaintiff Declared that on the 28th of June Discoursing with the Defendant about the Marriage of his Daughter the Defendant promised him That if he would hasten the Marriage and should have a Son within Twelve Months then next following he would give him an Hundred Pound And sets forth That he did Marry soon after and had a Son within 12 Months after the Marriage Vpon non Assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff had not set forth That he had a Son within the time for then next following shall be referred to the Day of the Discourse and not to the Marriage But the Court were of another Opinion and gave Judgment for the Plaintiff Crawfoot versus Dale IN an Action for Words it was thus There being a Discourse of the Plaintiffs Trade the Defendant said He was a cheating Knave and kept a false Debt-Book with which he cheated the Country After Verdict for the Plaintiff it was moved in Arrest of Judgment that to say a Tradesman was a Cheating Knave tho' there were a Colloquium of his Trade was not Actionable for that might be said because he sold too Dear and so cheated in the Price but to say that He sold bad Commodities is Actionable and to say He kept a False Book will not bear an Action for that may be unwittingly But the Court Resolved that the Words laid together were Actionable for Tradesmens Books are of much regard and sometimes given in Evidence Jennings versus Hunking IN an Action for saying He was Perjured the Declaration was laid in Devonshire The Defendant Iustified for that the Plaintiff made a false Affidavit at Launceston in Cornwal and Issue was taken upon that and tryed at the Assizes in Devonshire and moved that this was a Mis trial But it was Answered That the Statute of 17 Car. 2. cap. 8. helps all Mis-trials so as the Trial be in the County where the Action is brought And a Case was cited in this Court between Crosse and Winton in the 21 Car. 2. where an Action was brought for saying He stole Plate from Wadham Colledge in Oxford The Defendant Iustified that he did Steal there Vpon which there was Issue joyned and tryed in London where the Action was brought and it was held good And this Term a Case was moved in the Common Bench in a Writ of Covenant against Wise The Defendant pleaded a Feoffment of Lands in Oxfordshire and he Issue was non feoffavit and afterwards tryed in London where the Action was laid and the Opinion of the Court there was that the late Statute would help it The Court said It was within the words of the Act but as they conceived not within the meaning for they intended only so the Trial was in the County where the Issue did arise But in regard of the Resolutions before they would not stay Judgment Anonymus IN an Action upon the Case the Plaintiff sets forth that the Defendant malitiose crimen Feloniae ei imposuit and not mentioned any Felony in particular and yet held to be well enough Anonymus Trespass with a Continuando which was alledged for some time after the Term wherein the Action was brought and Damages given to 10 l It was moved in Arrest of Judgment that for part of thâ— Trespass it appears by the Plaintiffs own shewing that the Action was brought before the Plaintiff had Cause of Action And it was said That if the Bill were Filed at the End of the Term and the Trespass reached to some time within the Term the Filing should not relate so as to make it Insufficient But here it was carried to the 3d of July which the Court must see is out of the Term because they take Cognizance of the beginning and end of every Term. Anonymus IF an Audita Querela he brought before the Execution of a Judgment quia timet and it goes for the Defendant he shall execute his Principal Judgment But if it he brought after the party is in Execution and he be bailed out then the Judgment being once Executed there can be no after resort to that but the Defendant shall proceed upon the Record of the Audita Querela Fawkener versus Annis THe Priviledge of the Chancery was pleaded by way of Prescription and upon Demurrer it was held naught First Because it was not Concluded hoc paratus est verificare And Secondly No place alledged for they are Matters of Fact and Triable Anonymus IN an Action upon the Case the Plaintiff Declared That the Defendant the Tenants and Occupiers of such a parcel of Land adjoyning to the Plaintiffs have time out of Mind maintained such a Fence and that from the 23th of April to the 25th of May postea the Fence lay open and that una Equa of the Plaintiffs went through the Gap and fell into a Ditch the 28th of May submersa fuit Vpon Not Guilty pleaded and found for the Plaintiff Holt moved in Arrest of Judgment First That the Prescription is laid in Occupiers and not shewn their Estate and that hath been adjudged naught in the 1 Cro. 445. and the 2 Cro. 665. Curia 'T is true there have been Opinions both ways but 't is good thus laid for the Plaintiff is a Stranger and presumed ignorant of the Estate But otherwise it is if the Defendant had prescribed Secondly It was Objected That the Cause of Action is laid after the 25th of May and for ought appears the Fence might be good at that time tho' 't is said to be open till the 25th of May postea Sed non allocatur For 1. 'T is after a Verdict 2. 'T is said expresly that the Beast was lost in defectu fensuratum and so cannot be intended but that it was down at the time Anonymus AN Indictment of Forcible Entry upon the 8 H. 6 being removed hither by Certiorari a Restitution was prayed But to stop that it was said that the Indictment was traversed and a Plea that the party had had three years quiet possession according to the 31st of Eliz. and tho' Dyer 122 is That 't is in the
given pro Quer. Termino Paschae Anno 34 Car. II. In Banco Regis Clayton versus Gillam IN Trespass for breaking and entering of his Close and Feeding c. and laying thereon certain pieces of Timber c. Et continuando Transgressionem praed ' After Verdict for the Plaintiff it was moved in Arrest of Judgment that one of the Trespasses viz. The laying of Timber could not be with a Continuando But it was resolved by the Court that continuando transgressionem praed ' shall be referred only to the Trespasses which may properly be said with a continuando But if the continuando had been expresly laid for that Trespass all would have been naught as it was resolved in a Case in this Court between Letchford and Elliot 16 Car. 2. The Earl of Shaftsbury versus Cradock IN an Action of Scandalum Magnatum for saying That the Earl was a Traytor c. The Action being laid in London where the words were supposed to be spoken It was moved in behalf of the Defendant that the Venue might be changed into some other Country and Affidavits were read that the Plaintiff had a great interest in the City and an intimacy with the present Sheriffs so that the Defendant could not expect an indifferent Tryal there and thereupon the Court did think fit to take the Cause out of London and gave the Earl the Election of any other County but he refused to Trie it elsewhere and would rather let the Action fall Curtis versus Inman IN Debt for the Penalty forfeited by the Statute of 5 Eliz. for using the Trade of a Grocer having not been Bound an Apprentice It was moved that the Action lies not in this Court because 21 Jac. cap. 4. Enacts That Actions popular shall be brought before Justices of Assize of the Peace c. But a Case was cited which was adjudged in this Court Hill 20 21 Car. 2. between Barns and Hughes which see before that such Action would lie But the Court notwithstanding in this Case said they would hear Arguments The Earl of Shaftsbury versus Graham al. IN an Action upon the Case in the nature of a Conspiracy the Declaration was That the Defendants did conspire to indict the Plaintiff of High Treason and for that purpose did Sollicit one Wilkinson and endeavoured to Suborn him to give false Testimony against the said Earl and an Indictment was offered at the Sessions at the Old Baily in London by the Defendant in pursuance of the said Conspiracy which Indictment the Grand Jury there found Ignoramus c. It was moved in behalf of the Defendants that whereas the Conspiracy was in the Declaration alledged to be in London that the Court would change the Venue and an Affidavit of the Defendants was produced That the Conspiracy alledged in the Declaration if there were any such was in Surry and not in London Note Wilkinson at the time of the supposed Conspiracy was a Prisoner in the Kings Bench and Affidavits were produced likewise to shew that the Plaintiff had such Interest with the present Sheriffs of London that an indifferent Jury was not like to be returned and that several Persons named to be material Witnesses for the Defendant durst not come to the Tryal if it were in London for fear of their Lives in regard they had been so affronted and abused when they were produced to prove the before mentied Indictment at the Old Baily and several other matters were alledged But it was insisted upon by the Counsel for the Earl That First The Venue uses not to be changed in Case of a Peer who is one of the Comites Regis and shall not be forced to Travel into another County to trie his Case as a Common Person Secondly That the present Case was local viz The preferring the Indictment at the Old Baily and where the Cause of Action ariseth in two Counties the Plaintiff hath his Election to bring it in either 7 Co. Bulwers Case But the Court declared that they were satisfied that no indifferent Tryal could be had in London they remembered they were affronted themselves when they were at the Old Baily upon the before mentioned Indictment And they resolved that they had a power to alter the Venue in the case of a Peer as it had been done about six years since in a Scandalum Magnatum brought by the Earl of Salisbury in this Court. And also they said that the Cause of Action here was Transitory viz. The conspiring and that the preferring of the Indictment was but in aggravation of Damages and the Action would lie altho' none had been offered or if preferred by other Persons than the Conspirators 'T is true when the matter ariseth in several plates the Plaintiff has Election but if there be like to be no indifferent Tryal in the place where it is laid 't is usual with this Court to change the Venue But the Court said they would not confine the Plaintiff to Surry if he could shew them cause that that was not an indifferent County Vid. 42 Ed. 3. 14. Termino Sancti Michaelis Anno 34 Car. II. In Banco Regis Denison versus Ralphson IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of a Sum of Money paid by the Plaintiff did promise to deliver to him ten Pots of good and Merchandizable Pot Ashes and that not regarding his Promise and to defraud him he delivered him ten Pots of Ashes not Merchandizable but mixed with Dirt c. And declared also that pro quadam pecuniae summa c. the Defendant vendidit to the Plaintiff ten other Pots of Ashes Warrantizando c. that they were good and Merchandizable and that he delivered them bad and not Merchandizable knowing them to be naught and to this Declaration the Defendant Demurred And it was argued by Sanders That here were Causes of Action of several Natures put into one Declaration and they required several Pleas viz. Non Assumpsit and Not guilty and therefore ought not to be joyned Thompson for the Plaintiff cited a Case between Matthews and Hoskin An Action against a Common Carrier and declared upon the Custom of the Realm and that he had not delivered the Goods and declared also in a Trover and Conversion upon the same matter and after Verdict upon motion in Arrest of Judgment the Action was adjudged well brought 16 and 17 Car. 2. Hill in this Court. So an Action against one for twenty shillings upon the Hire of an Horse and declared further that he abused him and held good Curia Those Cases were after Verdict Causes upon Contract which are in the Right and Causes upon a Tort cannot be joyned for they do not only require several Pleas but there is several Process the one Summons Attachment c. the other Attachment c. These upon the Contract lie for and against Executors the other not but these seem to be both upon the Contract viz. That
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
are few that she goes to but lye desperately ill or dye under her hands Action good 21 Thou art a thievish Rogue and didst steal Plate from Wadham Colledge in Oxford The Words spoke in London where to be tryed 22 263 He is a Forsworn Justice and not fit to be a Justice of Peace if I did see him I would tell him so to his Face Action good 50 You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen 53 Of an Attorney That he could not Read a Declaration 98 He hath broke 2 or 3 of his Fathers Ribs of which he shortly after dyed and I will complain to a Justice of him he may be hangd for the Murder tho it were done 20 years since Action good 117 Of a Woollen Draper You are a Cheating Fellow and keep a false Book Action lies 117 He hath Forged his Vncle Row's Will 149 He had pickt his Pocket against his will and was a Pick pocket Not Actionable 213 Of a Justice of Peace He is not worth a groat and is gone to the Dogs Not Actionable 258 He is a false cheating Knave and keeps a false Debt Book with which he cheats the Country Actionable 263 For charging the Plaintiff with Felony generally Good 264 Of an under Carrier of Post Letters He hath broken up Letters and taken out Bills of Exchange Not lies 275 The Defendant said to the Plaintiff I know my self and I know you I never buggerd a Mare The words Actionable 276 He would have given D. Money to have Robbed G's House and he did Rob it 323 Administration By the Civil Law Administration ought to be committed to the Residuary Legatee whether Assets or not Assets 218 To which the Court of K. B. strongly inclined 219 316 Admiralty May punish one that resists the Process of their Court and may Fine and Imprison for a Contempt in the face of their Court but not give the Party Damages 1 Where Sentence is obtained in a Foreign Admiralty one may Libel for Execution thereof here thô the matter were not originally determinable in our Admiralty yet if the Contract were made on Land beyond Seas Prohibition lies 32 Its Jurisdiction in seizing Ships 173 It hath Jurisdiction of Ships taken by Pirates but not if taken by Enemies 308 Hath Jurisdiction for Mariners Wages 343 Age. Bond Conditioned that the Son and the Daughter of J. S. shall at their full Age give Releases this must be taken at their respective Ages 58 Alien Of his Capacity and Incapacity 417 Amendment The Court having Power over their own Entries and Judgments can amend defaults of Clerks after Judgment thô in an other Term 132 Mistake of the name in a Judgment in Ireland amendable here 217 No Amendment of a Return after the Filing 336 Apprentice See Statutes Whether the Quarter Sessions can discharge an Indenture of Apprenticeship 174 Appurtenant See Reputation A thing Appurtenant may be by Grant but a thing Appendant must be by Prescription 407 Connisance of Pleas may be created by the King 's Grant as he pleases either in Gross or as Appurtenant ibid. Arbitrament Award What Pleas good in Arbitrament and what not 50 71 87 184 Arrest Where the Bayliff may break a House upon an Arrest 306 Assault and Battery In an Action for both the Defendant may be found Guilty of the Assault but not of the Battery and here no more Costs than Damages 256 Assets Bonds and Specialties no Assets till the Mony be paid 96 Assignment Assignment where the Assignor keeps Possession Fraudulent and such Fraud may be avered 329 331 The word Assignees includes Assignees in Law as well as Fact 340 Assumpsit See Pleading Whether a Stranger to the Consideration may bring the Action 6 7 318 332 Good cause of Demurrer in Assumpsit where the Consideration carries nothing of trouble or prejudice to the Plaintiff or benefit to the Defendant 9 A mistake in the time relating to a Promise good after a Verdict 14 see also 119 Whether multum gratissimum servitium and multa Beneficia be sufficient Considerations in an Assumpsit 27. So for opere labore Servitio 44 Infant may make a Consideration whereon to ground an Assumpsit 51 The Breach must be laid as the Promise is 64 Forbearance of Suit where a good Consideration whereon to ground an Assumpsit 120 152 154 159 Claim without proof where good to ground a Consideration in an Assumpsit 211 Of Reciprocal Promises 177 214 Assumpsits in Consideration of Marriage 262 268 One Excommunicated for not paying in a Church Rate a Promise to pay in Consideration of Absolution Good 297 In Consideration of delivering Goods to a third person Good 311 Attorney See Mandamus Attorneys at large have the same priviledge with Clerks of the Court 1 Whether an Attorney in the Courts at Westminster may practise in Inferiour Courts 11 Attorneys shall be discharged of the Service of the Common Wealth à fortiori of any private Service as Constable Collector of Rents c. 16 29 Committed for Suing out a Bill of Middlesex against a Countess 295 An Attorney or Clerk of Court shall not have Priviledge if Sued joyntly with others 299 Averment See Pleading Assignment Obligation Where necessary and where not 41 43 44 117 149 177 178 B. Bail THe Action shall not be said to be depending until the Bail is Filed and not from the first day of the Term 135 Condition of the Bail Bond ought to agree with the Writ or else be void 233 234 Whether the Principal and Bail may be both taken in Execution 315 Bankrupt A Tradesman given over Trading may be a Bankrupt in respect of Debts contracted before 5 What makes a Man a Trader so as to make him a Bankrupt 29 166 A Man has Judgment in Debt and then becomes Bankrupt who shall have Execution 193 Victuallers for the Fleet not Traders within the Statute of Bankrupts tho' they Victual Merchantmen with the Surplus 170 The Commissioners Authority as to Commitments 323 Where a Debt paid by a Bankrupt to his Creditors shall be refunded 370 371 Baron and Feme See Statutes In Trover that they ad usum proprium converterunt c. Not good 12 24 33 Indebitatus Assump lies against the Husband for Apparel sold to the Wife 42 How to be Bailed when Arrested 49 Baron and Feme taken in Execution the Husband Escapes the Escape of the Husband is the Escape of the Wife and she shall be discharged 51 Battery brought against both and found only against the Feme Good 93 In a Suit the Baron makes an Attorney for both except the Feme be under Age 185. For then she is to be admitted by Guardian ibid. Where the Husband cannot release without the Wife 209 Battery brought by B. and F. for beating them both how far good 328 Bishop See Pleadings Of Common Right the Dean and Chapter are Guardians of the Spiritualties during the Vacancy of a Bishoprick but the
ann ' For 21 years extunc ê“x ' sequen ' plenar ' complend ' finiend ' Virtute cujus dimissionis praedictus Johan ' in TenÌ„ta praed ' cum pertinen ' Lessee enters intravit fuit inde possessionat ' Et sic inde possessionat ' existen ' idem Johannes postea scilicet decimo die Augusti Anno Domini millesimo sexcentesimo octogesimo secundo apud Grancester praedictam dimisit ad firmam tradidit eidem Roberto Dickman Tenementa praedicta cum pertinen ' habend ' occupand ' And Demised to the Plaintiff eidem Roberto Assign ' suis a Festo Sancti Michaelis ArcÌ„hi tunc ê“x ' sequen ' usque plenum finem terminum sex annorum extunc ê“px ' sequen ' plenar ' For six years complend ' finiend ' virtute cujus dimissionis idem Robertus in crastino dicti Festi Sancti Michaelis Arch ' Anno Domini milesimo sexcentesimo octogesimo secundo supradicto in Tenementa praedicta cum pertinen ' intravit fuit inde possessionat ' The Lessee Enters usque finem expirationem ejusdem termini praedictus tamen Abrahamus praemissorum non ignarus sed machinans fraudulenter intendens ipsum Robertum minus rite praegravare ac eum de faldagio praedicto ut praefertur habend ' impedire ac de prosicuo commoditate inde totaliter deprivare diu ante finem termini praedicti ult ' mentionat ' scilicet primo die Maii Anno Regni Domini Jacobi secundi nuper Regis Angliae tertio Oves videlicet ducent ' Oves ipsius Abrahami in Communes Campos de Grancester praed ' ibidem depasturand ' The Cause of Action posuit Oves ibidem eun ' depascend ' extunc usque decimum diem Septembris tunc ê“x ' sequen ' existen ' ante finem termini praedicti ult ' mentionat ' custodivit continuavit sed Oves ill ' in aut super praedictas centum sexaginta acras terrae arrabilis ipsius Roberti vel in aut super aliquam inde parcellam minime faldavit sicut ipse debuisset nec permisit ipsum Robertum habere beneficium faldagii earun-praedicto Abrahamo duran ' eodem termino non existen ' tenen ' For not Folding his Sheep according to Custom sive occupatore aliquorum messuag ' sive terrarum in Villa de Coton praed ' de quibus tenen ' sive occupator ' inde ê“ tempore existen ' a tempore cujus contrarii memoria hominum non existit usi fuer ' intercoicÌ„are Causa vicinagii in praedictis Communibus Campis de Grancester praedict ' cum Ovibus suis praedict ' ut praefertur per quod idem Robertus ê“ficuum advantagium faldagii Ovium praedictorum super praedictas centum sexaginta acras terrae arabil ' quibus ipse gaudere debuisset ê‘ tempus illud omnino ê‘didit amisit ad dampnum ipsius Roberti quadraginta librarum inde ê“duc ' Sectam c. Per quod the Plaintiff lost the benefit of Foldage Et praedictus Abrahamus per Richardum Pyke Attorn ' suum ven ' defend ' vim injur ' quando c. Not Guilty pleaded Et dic ' qd ' ipse in nullo est culpabilis de pÌ„missis praedictis suê‘ius ei imposit ' ê“ut praedictus Robertus su ê‘ius versus eum queritur Et de hic pon ' se suê‘ Patriam Et praedictus Robertus similiter Ideo praecept ' est Vic' qd ' venire fac ' hic a die Sanct ' Trin ' in tres septimanas duodecim c. ê‘ quos c. Et qui nec c. ad recogn ' c. quia tam c. Dickman versus Allen. IN an Action upon the Case the Defendant declared That the Provost and Scholars of Kings College in Cambridge were seised in Fee in jure Collegii of a Messuage in Grancester in Cambridge and 160 Acres of Arable Land lying in the Common Fields of Grancester aforesaid and the said Provost c. and all those whose Estate they have in the Tenements aforesaid have time whereof c. for themselves their Farmers and Tenants of the said Tenements libertatem Foldagii Anglicè Foldage omnium Ovium except c. euntium depascentium infra Communes Campos Territoria de Grancester praed ' super praed ' centum sexaginta Acras Terrae ê‘cipiend ' foldand ' tanquam ad praed ' Tenement ' ê‘ertinent ' and then sets forth a Lease made by the Provost and Scholars to Sir John Witwrong of the said Messuage and 160 Acres for 20 years which said Sir John let them to the Plaintiff for six years by virtue whereof the Plaintiff entred and was possessed and the said Defendant Praemissorum non ignarus did put 200 Sheep into the Common Fields of Grancester aforesaid and there kept and depastured them for a certain time sed Oves illas in aut super praed ' centum sexaginta Acras Terrae Arab ' ipsius Quer ' vel in aut super aliquam inde parcell ' minime foldavit sicut ipse debuisset nec permisit ipsum Querentem habere beneficium faldagii earundem and shews how the Defendant was not within exception by which the Plaintiff lost the profit of the Foldage c. and laid it to his damage of 40 l The Defendant pleaded not guilty and a Verdict was for the Plaintiff And it was moved in Arrest of Iudgment that the Plaintiff had not in his Declaration set forth a sufficient Cause of Action for he saith that the Defendant had not folded his Sheep upon the 160 Acres as he ought and it is not set forth that the Custom was for the Owner of the Sheep to bring his Sheep to fold them upon the said Lands But it was objected on the Plaintiffs part that the word Foldagium did imply as much and it was the usage in Norfolk and Suffolk for the Owner of the Sheep to put his Sheep into the Lords Land and fold them there for which the Lord provided Hurdles and prepared the Fold to receive them and of this Faldagium a Fine was levied of inter al' as is reported in 1 Ed. 3. fo 2. and the usage in Norfolk and Suffolk is there mentioned And it was said in a Possessory Action 't is enough to say sicut debuit without setting forth any particular Custom or Prescription And Dent and Olivers Case was cited 2 Cro. 122. where an Action was brought for disturbing of him in taking of Toll ad Feriam ipsius le Plaintiff spectan ' and it was moved after Verdict that he made no Title by Prescription or Custom to the Toll and it was held by the Court to be sufficient in a possessory Action to say ad Feriam suam spectant ' So also in an Action for stopping of a way belonging to his House without setting forth any Prescription between St. John and Moody a
a Scotishman Antenate being Naturalized by Act of Parliament in Ireland can Inherit Lands in England 2 Ne exeat Regnum Granted in Chancery to stop one from going beyond Sea to avoid a Sentence in the Ecclesiastical Court 345 Nonsuit The Plaintiff Nonsuited in Ejectment after Evidence where two Defendants and one appears to confess Lease Entry c. and the other not the Plaintiff shall pay Costs but quaere how to be divided 195 Notice See Chancery Conveyance Mortgage If a Man pleads a Valuable Consideration in Chancery to save his Estate from a Judgment he must also set forth That he had no Notice of the Judgment 361 O Obligation A Penalty may be recovered in an Action of Debt upon a Bill Obligatory tho' it be not drawn properly as a Penal Bill 106 Occupant Occupancy favoured in Chancery 364 Office Where the Archdeacon forfeits his Right to grant the Office of his Register by the Stat. 5 E. 6 c. 16. against the Sale of Offices whether the King or Bishop shall take advantage of the Forfeiture 188 213 267 A Dissenter that hath not received the Sacrament of 12 Months before may plead the Stat. 13 Car. 2. Stat. 2. cap. 1. to excuse him from serving Offices in Corporations 247 248 Original See Writs What Original Filing within time shall be sufficient to prevent the pleading the Statute of Limitations 193 259 Whether in the Common Pleas an Original in a Clausum fregit be sufficient to warrant a Declaration in an Assumpsit 259 Outlawry A Man in Prison ought not to be Outlawed by him who Imprisoned him 46 Action on the Case will not lye for the Party who hath an Outlawry agaist a Sheriff who neglects to extend the Goods of the Outlaw upon the delivery of a Writ of Capias Vtlagatum for that it is the King's loss 90 Whether Outlawry may be pleaded in Bar to an Assumpsit upon a Quantum meruit 282 Oxford See By-Law The Priviledge of the University not allow'd to a Townsman so as to excuse him from Office who keeps a Shop and follows a Trade tho' he be Matriculated and Servant to a Doctor 106 Priviledge not allow'd to a Member of this University in a Suit in Chancery 362 P Pardon SUits by Successor against Executor for Dilapidations not pardon'd by the General Pardon otherwise of Suits ex Officio against the Dilapidator 216 Parliament No Action lies against the Chief Officer of a Corporation for a Double-Return of a Burgess the Common Pleas having no Jurisdiction of this Matter 37 Peace The King cannot discharge a Recognizance taken for Surety of the Peace but after it is broken he may 131 A Gentleman said to be a Member of the House of Commons bound to the Peace for Challenging one of the King's Witnesses to Fight 317 Plantation Tho' a Plantation be an Inheritance yet being in a Foreign Country 't is look'd upon as a Chattel to pay Debts and a Testamentary thing 358 Pleading See Baron and Feme Covenant Intent Scire facias Copyhold What shal be held a Double Plea and what not 68 198 Trespass for carrying away diversa onera equina of Gravel naught for incertainty 73 Want of the Word alio or aliis in a Declaration where several mention is made of things of the same nature yet good enough 78 For the Defendant to traverse Matter not alledged good Cause for the Plaintiff to demur 79 If a Judgment and Execution be pleaded in an Inferiour Court not of Record the Proceedings ought to be set forth at large and not sufficient to say taliter processum fuit also it ought to be set forth That the Cause of Action did arise within the Jurisdiction 100 In a Prescription for Priviledge tempore quo non exstat memoria good enough tho' the Course be to say à tempore cujus contrarium memoria hominum non existit 130 Tho' by Course of the Court if a Defendant lye in Prison two whole Terms without any Declaration put in he may get a Rule to be discharged yet if a Declaration be afterwards delivered and Judgment thereupon 't is a good Judgment and the Bail formerly given will be liable 143 Where Freehold Lands were pleaded to pass by Surrender according to Custom the Special Custom must be set forth 144 Where the Writ contains more than is Declared for this is a Variance not aided by the Verdict and Judgment arrested 153 Debt upon Bond Condition'd That the Husband shall permit the Wife to dispose of her Personal Estate c. it is not sufficient for the Defendant to plead quod Conditio nunquam infracta fuit and put the Plaintiff to assign a Breach but the Defendant must shew forth That he hath perform'd the Condition 156 Where an Action of Trespass brought for the same Matter in another Court may be pleaded in Bar to an Action of Trover 169 170 In Trespass quod duas acras terrae fod subvert asportavit Judgment stayed because the Declaration doth not express the quantity of Earth carried away for the two Acres relate only to the Ground digged 174 The Plaintiff Declares for Assault Battery Wounding and Imprisonment the Defendant in his Plea takes no notice of the Battery naught 193 Plea in Abatement That the Plaintiff was dead before the Action brought where good 196 Where preadict is necessary and where not 197 Where a Traverse that might have been omitted is Cause of Demurrer 212 Doubleness in a Declaration cured by Answering 222 Day of the Week where material ought to be set forth in Pleading for the Court are not obliged to consult the Almanack 248 Tempore dimissionum where it should be temporibus dimissionum naught 253 254 271 Super Acclivitatem de Hampsted which is a description of a Scituation whether it be a Vill or Lieu conus sufficient for a Jury 254 272 Diversas petias Maheremij cepit c. naught for the Incertainty 262 Where the Defendant pleads an Insufficient Plea the Plaintiff shall make no Advantage of that upon Demurrer if his own Declaration be naught but Judgment will be against the Plaintiff 262. As where an Executor sues for Rent and does not sufficiently Intitle his Testator to the Estate demised ibid. Plenam potestatem Jus Titulum ad Praemissa dimittend ' and does not set forth what Estate he had whether in Fee or other Estate not good upon a Demurrer 271 Houses are set forth in Pleading to lye in Parochia praedicta and two Parishes are named before naught for the Incertainty 278 Traverse impertinent where the Matter is confest and avoided 283 No General Rule That a Matter cannot be pleaded specially which may be given in Evidence upon a General Issue and in what Cases it may 295 Vid. infra Statut. 1 W. M. cap. 4. Presumption Presumptions of Law stand as strong till the contrary appears as an express Declaration of the Party 208 Priviledge Whether the Warden of the Fleet shall have a Writ
principium inde One of the Lessees died before the Lease for Life determined whereupon the Lessor brings Covenant for the 3 l and sets forth this Matter in the Declaration To which the Defendant Demurred supposing that the 3 l was not to be paid unless the Death had hapned after the Term had commenced And the Court having heard it spoken to divers times by Counsel on both sides by the Opinion of Twisden Rainsford and Moreton Iudgment was given for the Defendant For all the other Reservations but this were expresly post principium termini and Clauses in Companies are to expound one another as it is said in the Earl of Clanrickard's Case in Hobart It is in the nature of a Rent and Reservation which it is not necessary that it should be Annual And in Randall and Scories Case 1 Cro. such a Duty was distrained for and it shall attend the Reversion Rolls 457. And he that hath but an interesse termini is not to pay the Rent reserved for there is no Term nor no Reversion until it commences If A. lets to B. for 10 years and B. redemises to A. for 6 years to commence in futuro in the mean time this works no suspension of either Rent or Condition The Intention of the Parties is to be taken That it should not be paid until then However Reservations are to be taken most strongly against the Reserver As Palmer and Prowses Case cited in Suffeild's Case 10 Co. is The Reversion of a Lease for years was granted for Life reserving certain Rent cum reversio acciderit a Distress was made for the Rent arrear ever since the Grant Resolved that it was good for no more than was incurred since it fell into possession Keeling Chief Justice held strongly to the contrary For he said the words were so express in this Case that they have left no place for Construction which other Clauses or the Intention of the Parties may direct when the Expression is doubtful He took it for a Sum in gross for Distrained for it could not be being reserved upon the Death of the Lessees or either of them which was also the limitation of their Lease And that Interpretations were not to be made against the plain sense of words He relied upon Edriches Case 5 Co. where the Judges said They would not make any Construction against the express Letter of the Statute yet there was much Equity in that Case to incline them to it And he said As well as a Fine is paid upon the taking of such Lease before it begins why may not something be paid also when their Interest determines And in some Countries they call such Payments A fair Leave Miller versus Ward TRespass for breaking of his Close on the 1st of August and putting in his Cattel The Defendant Iustifies for Common which he prescribes for in this manner viz. That two years together he used to have Common there after the Corn reaped and carried away until it was sown again and the Third year to have Common for the whole year and that that Year the Plaintiff declares for the Trespass was one of the years the Field was own quod post grana messa c. he put in his Cattle absque hoc that he put them in aliter vel alio modo The Plaintiff Demurs which it was Ruled he might for the Defendant doth not answer to the Time wherein the Trespass was alledged and the Traverse will not help it for aliter vel alio modo doth not refer to the time Anonymus AN Administrator brings Debt upon an Obligation The Defendant pleads payment to himself Vpon which it was found for the Defendant Coleman prayed that he might have Costs As where an Executor brings an Action sur Trover and Conversion in his own time and found against him it was Ruled in Atkyes Case 1 Cro. that he should pay Costs and hereof his own knowledge he had no cause of Action the Money being paid to himself But the Court Resolved That there ought to be no Costs in this Case for the Action of Trover in his own time might have been brought in his own Name so it was needless to name himself Executor or Administrator but the Action here is meerly in right of the Intestate Harvey versus James AFter Verdict at the Assizes the Clerk delivered the Postea to the Attorney by whose negligent keeping it came to be eaten with Rats But the Court Examining the Clerk of Assize it appeared that he had Entred the Jurors Names Verdict and Tales in his Book and according to that the Court suffered the Verdict to be entred on Record Anonymus IN an Action of Battery against Baron and Feme the Jury find the Feme only Guilty and not the Baron It was moved in Arrest of Judgment That this Verdict was against the Plaintiff for he ought in this Case to have joyned the Baron only for conformity and he declaring of a Battery by both the Baron being acquitted he hath failed of his Action and so is Yelverton 106. in Drury and Dennys Case But here the Court gave Iudgment for the Plaintiff and said that that in Yelvetron was a strange Opinion Anonymus A Certiorari was prayed to remove an Indictment of Manslaughter out of Wales which the Court at first doubted whether they might grant in regard it could not be tryed in an English Country But an Indictment might have béen found thereof in an English County and that might be tryed by 26 H. 8. cap. 6. vid. 1 Cro. Soutley and Prices Case and Chedleys Case But it was made appear to the Court That there was a great cause to suspect Partiality if the Tryal proceeded in Wales for the Party was Bailed already by the Justices of Peace there which Twisden said it was doubtful whether they had power to do for Manslaughter They awarded a Certiorari and took Order that the Prosecutor should be bound by Recognizance to prefer an Indictment in the next English Country Collect versus Padwell IN Debt upon a Bond to perform an Award which was That one should make a Lease to another before the 21 of October which was 2 or 3 Months after the Award and that the other upon the making of the Lease should pay him 50 l The Question was Whether notice in this Case ought to be given when he would make the Lease for otherwise it was said the other must have 50 l always about him or be in danger to break the Award And it was resolved by the Court That no notice was necessary Noell versus Nelson MIch 21. Car. 2. Rot. 745. Error to Reverse a Judgment given in the Common Pleas where the case was thus Nelson brings Debt against Noel as Executor of Sir Martyn Noel who pleads plene administravit The Plaintiff confesseth the Plea and prayeth Iudgment de bonis Testatoris quae in futoro ad manus Defendentis devenirint and upon a Suggestion of Assets afterwards he
brought in all their Names and it was Resolved in the Kings-Bench that the Action was well brought and affirmed upon a Writ of Error in the Exchequer Chamber But if in the Case at Bar they ought to joyn they must appear by Guardian It having depended divers Terms It was now Resolved by Rainsford and Moreton that the Action was well brought and they relyed upon the Case in Yelverton and they said the Case of Hatton and Mascue was no Authority against it for there they were named and where some are of Age no Administration durante minori aetate is to be granted They held also that the appearance ought to be by Attorney because they joyn with others and so in auter droit and so is 3 Cro. 377. the Countess of Rutland's Case and 541. Resolved that an Infant Administrator shall sue by Attorney See 1 Roll. 288 and 2 Cro. 420 421. Cotton and Westcote's Case The difference is taken where an Infant Executor is Defendant and where Plaintiff and Judgment given for him in which last Case only the appearance by Attorney is said to be good Twisden contra An Infant cannot in any wise sue or defend by Attorney First Because he cannot make an Attorney Secondly If it should be allowed he might be amerced pro falso clamore and no way to avoid it but by bringing a Writ of Error Thirdly He might be injured by the Attorney's Plea and could not remedy himself as he may against his Guardian as if in Debt the Defendant should plead a Release and the Attorney confess it And he cited a Case in this Court Mich. 1649. between Colt and Sherwood Where an Administrator brought an Action and it appeared by the Record that he was above 17 yet it was Ruled he ought to sue by Guardian For tho' by the Civil Law he was of Age to undertake the Administration yet the manner of his Suing was to be determined by our Law and that could not be by Attorney until the age of 21. Another Case be cited between Peyton and Dorce adjudged in the Court upon a Writ of Error out of the Petit Bag where Peyton sued as Administrator and the Entry was Quod queritur and did not express whether per Attornat ' Guardianum or how and had Judgment and Error was brought in this Court and these Four Points were Resolved First That a Writ of Error did lye out of the Petit Bag into this Court upon an Error in Fact Secondly That the Entry being General it should be taken that the appearance was in propria persona Thirdly That the Plaintiff being an Infant tho' an Administrator could not sue or appear but by Guardian or Prochein amy Fourthly That the Statute of Jeofails did not aid this Case which expresses only the Defendant's appearing by Attorney As to the other Point He inclined that the Action brought by them all was well enough But he acknowledged that much might be urged against the Case of Hatton and Mascue for the naming of them could signifie nothing not being made parties to the Action But he was not so much swayed by that Authority because he held that the Cause did not come well into the Exchequer Chamber being a Scire facias upon which he said no Writ of Error lay thither tho' upon a Judgment no more than upon a Recognizance and said They did joyn here as it were for Conformity As if a Feme Infant be made Executrix and Marries the Administration durante minori aetate ceases tho' she be under 17 and she and her Husband shall Sue The Chief Justice was absent being Sick and so the Plaintiff had Judgment by the Opinion of Rainsford and Moreton Ward versus Rich. WArd brought an Action against Hatton Rich de uxore abducta and keeping of her from him usque such a day which was sometime after the exhibiting of the Bill and concluded contra formam Staturi After Verdict for the Plaintiff it was moved in Arrest of Judgment and the Declaration was held good notwithstanding the impertinent Conclusion of contra formam Statuti there being no Statute in the Case Secondly The Court Resolved that Judgment should be stayed for the Jury shall be intended to give Damages for the whole time mentioned in the Declaration As in Trespass with a Continuando to a day after the Writ brought the Plaintiff shall not have Judgment after Verdict which gives Damages by Intendment for the whole time declared for And Twisden said These two Cases were Resolved A Tradesman brought an Action in an Inferiour Court for slandering of him in his Trade by which he lost his Custom within the Iurisdiction of that Court alibi and it was held maintainable notwithstanding the alibi The other was an Action brought upon the Sale of several things for divers Sums of Money quae quidem pecuniarum summae attingunt ad 10 l whereas rightly computed they came but to 9 l The Jury gave Damages less than 9 l and it was held good But if the Verdict had been for 10 l it had been naught The King versus Ledgingham AN Information was brought against Ledgingham for that he being a man of an unquiet Spirit communis perturbator oppressor vicinorum tenentium had taken excessive Distresses of divers of his Tenants After Verdict for the King at the Assizes it was said That no Judgment could be given upon this Information which was said to be defective both in matter and form It hath been often Ruled that Communis oppressor or such like General words without particularizing Offences was insufficient in an Indictment or Information unless the word Communis Barrectator which is of known signification in Law and comprehends divers Crimes and Twisden said is as much as Common Knave 9 Ass 2. Communis latro not good Vid. Roll. 79. Moor 451. neither can an Information be exhibited for taking of excessive Distresses for that was not punishable until the Statute of Marlebridge cap. 4. which saith that he that so Distrains shall be amerced whereas upon an Information he must of necessity be fined 2 Inst 107. Again It ought to have been expressed upon what Tenants the Distresses were taken with their Names otherwise it is too incertain One was Indicted for that he serving upon such a Grand Enquest did reveal the Secrets of the King and himself It was Resolved to be ill because not expressed what Secrets Moor 451. and of this Opinion was the Court in omnibus Ante. Pierson versus Ridge IN Replevin the Defendant made Conusans as Bayliff to a Lord of a Mannor who had a Court Leet by Prescription and laid a Custom for such a Township to send one to be sworn Constable there which not being done a Fine was set and this Distress taken for it Vpon which it was Demurred because no Custom was alledged to warrant the Distress For tho' of common Right a Distress may be taken for a Fine in a Court Leet that
should be informed what their course is and has been and therefore let us hear the Civilians as to this point Post The King and Marlow THe Defendant being a Printer was indicted for his second Offence for Printing of a Seditious Book contrary to the Act of 14 Car. 2. cap. 33. and being found Guilty at the Sessions of the Old Baily the Iudgment was given That he should be for ever disabled to exercise the Art or Mistery of Printing and pay 20 l Fine and to stand in the Pillory And a Writ of Error was brought and Errors were assigned in the Judgment as varying from the words of the Act. For First The Act is That he should be disabled to exercise the Art and Mistery of Printing or Founding of Letters And the Judgment is only to disable him from Printing Secondly The Act is That he shall receive such further punishment by Fine Imprisonment or other Corporal Punishment And the Judgment is both for a Fine and Corporal Punishment when it ought not to be for both Curia The first is as it should be for Printing and Founding of Letters are two distinct Trades and the words are to be taken respectively to such Trade as the Defendant is of Again 't is a Rule that a Man shall not Assign an Error in that which is for his advantage But the second was held an Error for that the Act did not intend a Fine and Corporal Punishment both and therefore the Judgment was reversed Termino Sancti Michaelis Anno 29 Car. II. In Banco Regis Davis versus Price IN Error upon a Judgment in the Common Bench in an Action of Trover where Iudgment was given by default The Error was assigned in the Declaration which was de decem Juvencis Anglice Bullocks and Heifers and not said how many of one and of the other But it was answered that the Latin word being proper and of known signification the Anglice was void according to Osborns Case 10 Co. But the Court reversed the Judgment and cited the Case before in this Court Trover de viginti ovibus matricibus agnis And it was resolved to be naught for not ascertaining the number of each But Twisden said there was a Trover brought de Viginti averiis ivz. Bobus agnis c. and Viginti was applied to each Species and held well It was offered in this case to distinguish it from the case de Ovibus matricibus agnis that there the Latin was of two sorts Sed non allocatur for the words here being Equivocal it was all one Dutton versus Pool AN Assumpsit the Plaintiff declared That his Wives Father being seized of certain Lands now descended to the Defendant and about to cut a Thousand pounds worth of Timber off from the said Lands to raise a Portion for his said Daughter the Defendant promised to the Father in Consideration that he would forbear to fell the Timber that he would pay the said Daughter 1000 l After Verdict upon Non Assumpsit for the Plaintiff it was moved in Arrest of Judgment that the Father ought to have brought this Action and not the Husband and Wife and there was a case shewn to be adjudged in the Common Bench Hillary 23 and 24 Car. 2. Rot. 1538. between Pine and Norris where the Son promised the Father that in Consideration that he would Surrender a Copyhold to him that he would pay a certain Sum to his Sister for which she brought the Action and then held that it would lie for none but the Father for where the Party to whom the Promise is to be performed is not concerned in the meritorious cause of it he cannot bring the Action But if a Promise were to a Man that if his Daughter should Marry his Son he would give her 1000 l there because the Daughter does the Act which is the Consideration she may bring the Action On the contrary the Case was cited 1 Rolls 32. Starkey and Miln where in Consideration of certain Goods sold the Promise was to pay part of the Money to another there that other might bring the Action And it differs from the case where Money is delivered to A. to pay over to B. B. may bring Debt Yelv. 24. If the Father had in the Case at Bar cut the Trees And the Son had said Let me have the Trees and I will pay the Daughter so much that had been the same with the Case before cited 1 Roll. and it doth not seem to differ as it is 1 Cro. 163. Rookwook Case where the Father being about to charge the Land with a Rent of 4 l per Annum to his Younger Sons the Eldest promised that if he would forbear to charge the Land he would pay the 4 l per Annum and the Sons upon this brought the Assumpsit and recovered Sed vide librum that Promise is said expresly to be made to the Sons who were present Vid. 1 Cro. 619.652 Levett and Haws Case where the Promise was made to a Man in Consideration that he had agreed that his Son should Mary his Daughter and to settle such a Joynture upon her that he would give the Son 200 l with her and for this the Father brought the Action and held well brought tho' the Court seemed to incline that the Son might also have brought it And the Court here inclined for the Plaintiffs Sed Adjornatur Post Saunders versus Williams IN an Action upon the Case the Plaintiff Declared that he was seised in Fee of one Acre and possessed for a certain number of years in another Acre and had a Common in Black-acre for Beasts levant and couchant thereupon and that the Defendant put his Beasts in the place and disturbed him The Defendant pleaded a Title of Common to himself also there Vpon which Issue was joyned and found for the Plaintiff and it was now moved in Arrest of Judgment that the Plaintiff had made no Title to the Common by Prescription or otherwise Sed non allocatur The Defendant being a Wrong-doer And the same Matter was Adjudged in the Court between St. John and Moody St. Mich. 27 Car. 2. quod vide ante and in the 2 Cro. 43.122 3 Cro. 500. Robinson versus Woolly THe Case was this Term Argued again And Holt Argued That the Induction tho' executed by the Archdeacon after the New Bishop was Consecrated was sufficient The Bishop is only to Admit and Institute and to send a Mandate to the Archdeacon to Induct who is to do it de communi Jure and therefore if the Bishop hath Admitted and Instituted and made a Mandate for Induction 't is a sufficient Excuse for him in a Quare impedit 11 H. 4. 9. for the Bishop is meerly a Spiritual Officer A Prebendary is to be Inducted by the Dean and Chapter Pl. Com. 529. But 't is Objected That the Archdeacon does not Induct ex Officio â—ut a Mandate from the Bishop is requisite scilicet First The
it will be agreed he might have released it or by cutting of the Wood might have taken away all the right of Action Again it does not appear by the Record that the Defendant was here and so no benefit by the forbearing to cut the Wood. Rookwoods Case cited on the other side 1 Cro. 163. 1 Leonard 192. is that the Promise was made to the younger Brothers and the Consideration that they would consent but here the Plaintiff who was to have the Money had no share in the Consideration or Meritorious Act as where the Father promises J. S. if his Son will Marry his Daughter he will give him 1000 l the Son may bring the Action because the Consideration moves from him Hetlys Rep. 20. the Case was to this effect A Man promises a Woman whom he was to Marry upon a certain Consideration that if he had a Son by her he should have a Term whereof the Woman was then possessed and if it were a Daughter she should have the Moiety of the Goods c. they Intermarry and after the death of the Husband the Daughter born between them brings an Action against the Executor of the Husband and resolved that it would not lie tho' they did not think the Agreement made with the Wife to be discharged by the Intermarriage but only suspended which is a Quaere in my Lord Hobart Yet the Daughter being no Party to the Promise or to the Consideration could not bring an Action The Case of Norris and Pine before cited is stronger for there he that made the Promise had a benefit for it was in Consideration of Marriage On the other side it was said that tho' it doth not appear that the Defendant was Heir yet it may be intended after Verdict however 't is not nudum pactum for if the Defendant had no benefit yet there was a restraint upon the other and that is Consideration enough And for the objection of releasing that holds where J. S. promises J.N. if his Son will Marry his Daughter he will pay him 1000 l J.N. may Release but 't is doubtful whether he can after Marriage because then 't is vested in the Son as Scroggs Chief Justice said 1 Roll. 31. The Uncle of an Infant delivered J.S. 12 l who promised to pay the Infant when he came of Age and the Action was well brought by him after his Age. So Goods sold to A. to pay 10 l to B. B. may Sue Vid. 1. Roll. 32 Starkey and Mills The Court said it might be another Case if the Money had béen to have been paid to a Stranger but there is such a nearness of Relation between the Father and Child and 't is a kind of Debt to the Child to be provided for that the Plaintiff is plainly concerned And so by the Opinion of them all viz. Scroggs Wild Jones and Dolben Judicium pro Querente Ante. Anonymus A Prohibition was prayed to the Sheriffs Court of London for that an Action was there Commenced to which the Defendant pleaded That the cause of Action did not arise within the Jurisdiction and offered to swear his Plea but it was refused The Counsel for the Plaintiff objected against the Prohibition that the Plea came too late for it was after an Imparlance But it being proved by Affidavit that the Plea was tendred within two days after the Declaration was delivered and that immediately upon delivering the Declaration there is an Imparlance of course The Court granted the Prohibition and said that the other side might Demurr if they thought fit for the liberty of the Subject was infringed by bringing him within a private Jurisdiction when the Matter arises out of it and Attorney's in such places are sworn to advise no Plea to the Jurisdiction nor that none shall be put in by them And whereas 't was said that the Party had not prejudice for he might remove his Case by Habeas Corpus The that the Court answered coming by Habeas Corpus Bail must be put in above tho' the Cause otherwise did not require it Note It appeared here that there was no defence made in this to the Jurisdiction and Co. Inst was quoted that defence should be made tho' not full defence But the Court said it was not necessary and that Presidents were otherwise especially where the Court have no Jurisdiction of the matter otherwise where not of the person James versus Richardson IN Ejectment the Case upon a Special Verdict was thus A. devised the Lands to B. and his Heirs during the Life of J. S. and after to the Heirs of the Body of R. D. now living and to such other Heirs was should after be Born the Devisee for Life levied a Fine in the Life of him to whose Heirs the Remainder was limited but he had a Son at the time of the death of the Testator The question was Whether it was a Contingent Remainder the consequence whereof was to be destroyed by the Fine and that it was vested in the Son Scroggs Chief Justice Wild and Jones held it a Remainder vested by reason of the words now living which was a sufficient Designation of the person that was to take in a Will tho' improper to call him Heir But Dolben Contra for by this Construction the Heirs Born after are excluded and the Son would take but an Estate for Life tho' it were devised to the Heirs in the Plural Number Note Vpon a Writ of Error in the Exchequer Chamber this Iudgment was reversed Hillary 31 32. Car. 2. Termino Paschae Anno 31 Car. II. In Banco Regis A Mandamus was prayed to the Ecclesiastical Court to grant the Probat of a Will under Seal c. The Case was the Executor named in the Will had taken the usual Oath but after a Caveat entred and then Refused and another endeavoured to obtain Letters of Administration the Executor came after to desire the Will under Probat and contested the granting of Administration Which was Adjudged against him supposing that he was bound by his Refusal And after an Appeal to the Delegates this Mandamus was prayed and granted by the Court for having taken the Oath he could not be admitted to Refuse and the Ecclesiastical Court had no further Authority and the Caveat did not alter the Case Note The Oath was taken before a Surrogate yet it was all one Anonymus A Prohibition was prayed to a Suit for Tythes upon the Suggestion that the Lands out of which they were demanded say out of the Parish and the Bounds of Parishes are tryable at the Common Law But the Court denied the Prohibition because it did not appear that a Plea thereof had been offered in the Ecclesiastical Court Anonymus A Prohibition was prayed to stay a Suit against J. S. Lessee of a Rectory out of which a Pension was demanded It was suggested that the Lord Biron had three parts in four of this Rectory upon which the Pension was chargeable and that
upon the Warranty as well as the other tho' the Declaration saith knowing them to be naught yet the knowledge need not to be proved in Evidence Debt upon a Bond and a mutuatus may be joyned in one Action yet there must be several Pleas for Nil debet which is proper to the one will not serve in the Action upon the Bond. Sed Adjornatur Termino Sancti Hillarij Anno 34 35 Car. II. In Banco Regis Anonymus A Quo Warranto was brought against divers persons of the City of Worcester why they claimed to be Aldermen c. of the said Corporation The Cause came to be tried at the Bar and a Challenge was made to the Jury in behalf of the Defendants for that the Jury men were not Freeholders The Court said that for Juries within Corporate Towns it hath hath been held that the Statutes that have been made requiring that Jurymen should have so much Freehold do not extend to such places for if so there might be a failer of Justice for want of such Jurymen so qualified but then to maintain the Challenge it was said by the Common Law Jurymen were to be Freeholders But the Court overruled the Challenge but at the importunity of the Counsel they allowed a Bill of Exceptions and so a Verdict passed against the Defendants and afterwards it was moved in Arrest of Judgment upon the Point But the Court would not admit the Matter to be Debated before them tho' divers Presidents of like nature were offered because they said they had declared their Opinions before and the Redress might be upon a Writ of Error Termino Sanctae Trinitatis Anno 35 Car. II. In Banco Regis Anonymus A Motion for a Prohibition to a Suit in the Ecclesiastical Court for a Churchwarden's Rate suggesting that they had pleaded That it was not made with the Consent of the Parishioners and that the Plea was refused The Court said That the Churchwardens if the Parish were Summoned and refused to meet or make a Rate might make one alone for the Repairs of the Church if needful because that if the Repairs were neglected the Churchwardens were to be Cited and not the Parishioners and a Day was given to shew Cause why there should not go to a Prohibition Termino Sancti Michaelis Anno 35 Car. II. In Banco Regis Gamage's Case ERror out of the Court of the Grand Sessions where in an Ejectment the Case was upon Special Verdict upon the Will of one Gamage who devised his Lands in A. to his Wife for Life Item his Lands in B. to his Wife for Life and also his Lands which he purchased of C. to his Wife for Life and after the decease of his Wife he gave the said Lands to one of his Sons and his Heirs And the Question was Whether the Son should have all the Lands devised to the Wife or only those last mentioned And it was Adjudged in the Grand Sessions that all should pass And upon Error brought it was Argued that they were Devises to the Wife in distinct and separate Sentences and therefore his said Lands should be referred only to the last On the other side it was said that the word Said should not be referred to the last Antecedent but to all If a man conveys Land to A. for Life Remainder to B. in Tail Remainder to C. in forma praedict ' the Gift to C. is void 1 Inst 20. b. It is agreed if he said All the said Lands to his Son and his heirs it would have extended to the whole This is the same because Indefinitum equipollet universali Et Adjornatur Herring versus Brown IN an Ejectment upon a Special Verdict the Case was Tenant for Life with several Remainders over with a Power of Revocation Levied a Fine and then by a Deed found to be Sealed ten Days after declared the Vses of the Fine which Deed had the Circumstances required by the Power The Question in the Case was Whether the Fine had extinguished the Power It was Argued that it had not because the Deed and Fine shall be but one Conveyance and the use of a Fine or Recovery may be declared by a subsequent Deed in the 9 Co. Downam's Case And a Case was Cited which was in this Court in my Lord Hale's time between Garrett and Wilson where Tenant for Life with Remainders over had a Power of Revocation and by a Deed under his Hand and Seal Covenanted to levy a Fine and declared it should be to certain Vses and afterwards the Fine was Levied accordingly This was held to be a good execution of the Power and limitation of the new Vses and the Deed and Fine taken as one On the other side it was Argued That the Deed was but an Evidence to what Vses the Fine was intended and the Power was absolutely revoked by the Fine Suppose he in Remainder had Entred for the Forfeiture before this Deed should the Defendant have defeated his Right Et Adjornatur Postea Hodson versus Cooke IN an Action upon the Case for commencing of an Action against him in an Inferiour Court where the Cause of Action did arise out of the Jurisdiction After a Verdict for the Plaintiff upon Not Guilty it was moved in Arrest of Judgment That it was not set forth that the Defendant did know that the Place where the Action arose was out of the Jurisdiction which it would be hard to put the Plaintiff to take notice of On the other side it was said that the party ought to have a Recompence for the Inconvenience he is put to by being put to Bail perhaps in a Case where Bail is not required above and such like Disadvantages which are not in a Suit brought here and the Plaintiff ought at his peril to take notice However to help by the Verdict And of that Opinion were Jeffreys Lord Chief Justice Holloway and Walcot but Withens contra The Court said that it could not be assigned for Error in Fact that the Cause arose out of the Jurisdiction because that is contrary to the Allegation of the Record neither is the Officer punishable that executes Process in such Action but an Action lies against the party And so it was said to be resolved in a Case between Cowper and Cowper Pasch 18 Car. 2. in Scac. when my Lord Chief Baron Hale sate there Anonymus AN Indictment of Perjury for Swearing before a Justice of the Peace that J. S. was present at a Conventicle or Meeting for Religious Worship c. It was moved to quash it because it did not appear to be a Conventicle viz. That there was above the number of Five and so the Justice of the Peace had no power to take an Oath concerning it and then it could be no Perjury To which the Lord Chief Justice said That Conventicles were unlawful by the Common Law and the Justices may punish Unlawful Assemblies And he seemed to be of Opinion that a man might be
1 W. M. After which Judgment for the Defendants 166 That the said Defendants shall go sine die and have their Costs 167 Averment that the said Judgment remains in full force That the Goods in the said Action of Trespass and this of Trover are the same That the Conversion in this Action and the Taking in the other is the same That the Cause of Action was the same in both And that the Plaintiffs and Defendants are the same Et hoc parati sunt verificare unde petunt Judicium si praedicti the Plaintiffs Actionem suam versus eos habere debeant c. Not guilty to the residue of the Goods The Plaintiffs demur The Defendants joyn 168 Vsury Pleaded Vid. Debt 7. Way Action for stopping it Vid. Action on the Case 5. WE all knowing the Great Learning and Judgment of the Author do for the Benefit of the Public approve of and allow the Printing and Publishing of this Book Intituled The Reports of Sir Peyton Ventris Kt. Late One of the Justices of the Court of Common-Pleas J. Som̄ers C.S. J. Holt Geo Treby Ed Nevill Joh. Powell W. Gregory N. Lechmere Tho. Rokeby G Eyre Jo Turton John Powell Sam. Eyre April the 20 th 1965. The Second Volume TERMINO SANCTI HILLARII Anno Vicesimo primo secundo Caroli Secundi IN COMMUNI BANCO Craw versus Ramsey IN an Ejectment of Lands and the Rectory of Kingston upon Thames in Surrey Vpon Not Guilty pleaded the Jury found a Special Verdict to this effect viz. That Robert Ramsey Born in Scotland before the Accession thereof to the Crown of England had Issue four Sons Robert Nicholas John and George Antenati Robert died they do not find when leaving Issue three Daughters Margaret Isabel and Jane who were also Aliens and alive 1 Octob. 14 Car. 1. Nicholas had Issue Patrick born in England 1 May 1618. They also find that at the Parliament holden 10 Car. 1. in Ireland it was Enacted That all Persons of the Scottish Nation should be reputed the Kings Natural Subjects to all intents constructions and purposes of that his Realm of Ireland as if Born there And they find the Act of Parliament at large Nicholas Ramsey was alive at the making of that Act. John the third Son afterwards Earl of Holderness was Naturalized by Act of Parliament in England 1 Jacobi and purchased the Lands and Rectory in question and being seised 22 Jac by Indenture Tripartite between him of the First part Sir William Cocke and Martha his Daughter of the Second part and Charles Lord Effingham of the Third part In Consideration of a Marriage to be had between him and Martha did Covenant to levy a Fine to the use of himself for Life and afterwards to Martha for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs And 29 Septemb. 22 Jac. the Marriage was had and the Michaelmas Term after a Fine was Levied accordingly The 24 of Jan. 1 Car. 1. the Earl died without Issue Martha Entred and was seised for her Life and died 17 Car. Et eodem anno it was found by Office that the Earl of Holderness died seised of the Rectory as before and without an Heir and that King Charles anno decimo granted this Rectory to one Murray George the fourth Son of Robert was Naturalized by the Parliament here 7 Jac. He had Issue John the Defendant Nicholas died Patrick his Heir in 1651. bargained and sold to the Earl of Elgin and one Sydenham virtute cujus vigore Statuti c. they were seised prout Lex postulat and in 1662. bargained and sold for years to Amabel Countess of Kent and Jane Hart and afterwards Released to them and their Heirs in 1665. They being seised bargained and sold by Lease and Release also to Pullen and Neale who Entred and bargained and sold to Sir Lionel Talmash and West the Lessors of the Plaintiff upon whom John the Defendant Entred Vpon which the Action is brought and the great Question in the Case was Whether Patrick the Son of Nicholas might claim these Lands as Heir to the Earl of Holderness by virtue of the Act of Parliament in Ireland 10 Car. or that they should descend to the Defendant the Son of George Naturalized the 7 of Jac. in England Wyld and Archer who Argued first were of Opinion That however the Point was adjudged the Plaintiff could not have Judgment upon this Verdict for they do not find that Patrick entred or was seised but that he in 1651. did bargain and sell c. Virtute cujus the Bargainees were seised prout Lex postulat and then bargained and sold in 1662 and do not so much as find their Bargainees seised prout Lex postulat But they find the Defendant Entred and so the primer Possession is in him which is a good Title against the Plaintiff for whom none is found it not being found that Patrick Entred Again If the Naturalization in Ireland will serve in England the Title appears for the Daughters the Heirs of Robert the eldest Son for 't is found that he died but not when so it might be after the Act of 10 Car. But Tyrrell and Vaughan Chief Justice differed in these two Points As to the First They said it would be intended Patrick entred for a Verdict that leaves all the Matter at large to the Iudgment of the Court will be taken sometimes by Intendment as well as where the Jury Conclude upon a Special Point 2 Cro. 64. find an Incumbent Resigned the Resignation shall be intended accepted So in 4 Co. Fullwood's Case it was found that one came before the Recorder of London and Mayor of the Staple recognovit se debere c. and did not say per scriptum suum Obligatorium nec per formam Statuti yet intended so Vid. Hob. 262. And where they find the Bargainees seised prout lex postulat that doth not leave it doubtful whether seised or no but whether by right or wrong for Seisin must be taken as found expresly Neither do they find any other in possession nor that the Defendant made any Claim in Twelve years after which enforces the Intendment as before And it is found expresly that Pullen and Neale Entred in 1665. so that the Defendant had not the primer Possession however or if he had he should not have Judgment if no other Title were found for him as is Resolved in 1 Cro. 42. Hern and Allen's Case As to the Second It shall be intended Robert died before 10 Car. For he is found an Alien and shall be presumed to have continued so during his Life unless found to the contrary then the Discent to the Daughters is obstructed by the Incapacity of their Father And tho' when the Title is found for the King the Court shall adjudge for him because the Kings Courts are intrusted with his Rights 't is not so of any other person but they shall take no
sunt verificare unde petunt Judicium si praed ' Nicholaus Sabian ' accon ' suam praed ' versus eos habere seu manutenere debeant The Conclusion of the first Plea c. Et quoad resid ' Transgr ' convercon ' disposicon ' resid ' bon ' catall ' pecun ' in Narr ' praedict ' superius menconat ' iidem Alicia Thomas Benjaminus Georgius dicunt quod ipsi non sunt inde culpabil ' Et de hoc pon ' se super Patriam Et praedict ' Nicholaus Sabian ' similiter Not Guilty to the residue of the Goods c. Creswell Levinz Demurrer Et praedict ' Nicholaus Sabian ' dicunt quod ipsi per aliqua per praedict ' Aliciam Benjaminum Thomam Georgium modo forma superius placitand ' allegat ' ab accon ' sua praed ' inde versus eos habend ' praecludi non debent quia dicunt quod placitum praedict ' per ipsos Aliciam Benjaminum Thomam Georgium modo forma praed superius placitat ' materiaque in eodem content ' minus sufficien ' in lege exist ' ad ipsos Nich ' Sabian ' ab acc̄one sua p̄d ' inde versus ipsos Aliciam Benjaminum Thomam Georgium habend ' praecludend ' ad quod quidem placitum ipsorum Aliciae Benjamini Thomae Georgii iidem Nicholaus Sabian ' necesse non habent nec per legem terrae tenentur respondere Et hoc parat ' sunt verificare Unde pro defect ' sufficien ' respons ipsorum Aliciae Benjamini Thomae Georgii in hac parte iidem Nicholaus Sabian ' petunt Judicium dampnum sua occ̄one convercon ' disposicon ' bon ' catall ' ill ' sibi adjudicari c. Joynder in Demurrer Et praedict ' Alicia Benjaminus Thomas Georgius dicunt quod placitum praed ' ipsorum Aliciae Benjamini Thomae Georgii modo forma praed ' superius placitat ' materiaque in eodem content bon ' sufficien ' in lege exist ' ad ipsos Nicholaum Sabian ' ab accon ' sua praed ' versus ipsos Aliciam Benjaminum Thomam Georgium habend ' praecludend ' quod quidem placitum materiamque in eodem content ' ipsi iidem Alicia Benjaminus Thomas Georgius parat ' sunt verificare Et quia praedict ' Nicholaus Sabian ' ad placitum ill ' non respond ' nec ill ' hucusque aliqualit ' dedic ' sed verificacon ' ill ' admittere omnino recusant iidem Alicia Benjaminus Thomas Georgius ut prius petunt Judicium Et quod praedict ' Nicholaus Sabian ' ab accon ' sua praed ' inde versus eos habend ' praecludentur c. Et quia Justic ' hic se advisare volunt de super praemiss priusquam Judicium inde reddant dies inde dat' est tam praed ' Nicholao Sabian ' quam praed ' Aliciae Benjamino Thomae Georgio hic usque in Octab ' Sancti Hillar ' de audiend ' inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Lechmere versus Toplady IN an Action of Trover by Letchmere and Others against Alice Toplady Sir Benjamin Thorowgood and Others where the Plaintiffs Declared That they were possessed de ducent ' viginti quinque libris legalis monet ' Angl ' in pecuniis numerat ' and of ten pipes and fifty gallons of Canary and of divers other things in the Declaration mentioned which they lost and which came afterwards to the possession of the Defendants and they converted them to their own use The Defendants as to divers of the Goods in the Declaration mentioned which they particularly recite in their Plea plead in Bar That in Michaelmass Term in the second year of the late King James the Second the said Plaintiff commenced an Action against the now Defendants in the Kings Bench de plaeito Transgr ' super Casum where they Declared that the Defendants Vi armis took the said Goods and Chattels in the Declaration now mentioned and pleaded to apud London c. ceperunt asportaverunt To which the Defendants pleaded Not Guilty and went to Trial upon that Issue Vpon which the Jury found a Special Verdict which the Defendants set forth in their Plea verbatim together with the whole Record in the Kings-Bench and that upon that Special Verdict the Court gave Judgment that the Plaintiffs nil capiant per billam and that the Defendants irent inde sine die prout per Recordum Process inde in Cur ' dicti domini Regis dominae Reginae nunc coram ipsis Rege Regina apud Westm ' residen ' plen ' apparet quod quidem Recordum in plenis róbore vigore suis adhuc remanent minime reversat ' seu annihilat ' and avers that the Goods and Chattels in both Declarations ' were the same and the taking carrying away and disposing of the said Goods in the said Action of Trespass and the coming of the said Goods to the hands of the Defendants and the disposition and conversion thereof in this Declaration mentioned are the same and the Cause of Action the same c. and as to the residue of the Goods and Chattels in the now Declaration mentioned the Defendant pleads Not Guilty and Issue thereupon and to the Bar pleaded the Plaintiffs demurred It was Argued by Serjeant Tremayne against the Bar That the Actions were of a different nature and that in many Cases Trover would lye where Trespass Vi armis would not 1 Cro. 667. Ferrars and Arden where 't is said If one deliver Goods to another to keep and brings Trespass and is Barred he may after bring Detinue because he mistook his Action Vid. 6 Co. 7. And he relied upon the Case of Putt and Royston Pasch 34 Car. 2. B. R. Rot. 422. where in an Action of Trespass upon a Not guilty Verdict was for the Defendant and Judgment and there the Plaintiff brought an Action of Trover for the same matter and the former Judgment was pleaded in Bar and upon a Demurrer it was adjudged for the Plaintiff Serjeant Pemberton contra 'T is taken for a Rule in Sparrie's Case 5 Co. 61. Nemo bis vexari debet si constet Cur ' quod sit pro una eadem causa He agreed that Trover would lye in many cases where Trespass would not but here it appears to the Court by the Matter disclosed in the pleading the Special Verdict and whole Record being set forth that the Plaintiff was barred before not for having mistaken his Action but upon the Rights and Merits of the Cause and this he said differed this Case from that of Putt and Royston Note That Case was Adjudged when Sir Francis Pemberton was Chief Justice of the Kings-Bench for there the Verdict being upon the General Issue in Trespass
which it was answered That they were not tyed to the Time but the Place it was ibidem facere Ordinationes and not adtunc ibidem But the Court gave Judgment upon the first Matter Newport versus Godfrey THe Plaintiff brought an Action of Debt in the Detinet against Godfrey Executor of Stephen Turner for 70 l arrear of Rent and declared upon several Demises upon the 28th of September 1685. to the said Turner reserving several Rents of which there became arrear to the Plaintiff in the Life time of the said Turner 70 l and it appeared by the Declaration that the Leases ended in the Life of the said Turner In Bar of which the Defendant pleaded several Bonds entred into by the Testator to divers persons for the payment of Money which he avers to be all for true and just Debts and that he had administred all besides Goods to the value of 40 l which he retained towards satisfaction of the said Bonds c. To which the Plaintiff demurred and it was Argued last Term for the Defendant that a Debt upon a Specialty was to be preferred before Debt for Rent upon a Lease parol Styl Rep. 61. Rolls said that a Specialty was of an higher nature than Rent reserved upon a Lease by Deed. Indeed it is made a Quaere in Roll. Abr. 1. part 927. but if Rent should be preferred where the Lease was continuing after the Death of the Testator in regard the Testator's Goods are liable to be distrained for it which the Executor cannot withstand Yet there is not the like Reason when the Lease expires in the Life of the Testator and the Case was adjourned to this Term for the Iudgment of the Court. And the whole Court were of Opinion that Judgment should be for the Plaintiff For tho' the Lease be determined yet the Debt still savours of the Realty and is maintained in regard of the Profits of the Land received insomuch that no Wager of Law lies in Debt for Rent tho' brought after the Lease determined A Bond given for Rent will not drown it 11 H. 4. 75. b. an Action lies against the Executors of an Assignee of a Lease for Rent in the Testator's time and yet the Assignee is chargable only in respect of the Lease Vid. 13 H. 4. 1. a. Office of Executors 209 210 211 c. Godfrey versus Ward IN an Action of Debt for Rent The Defendant pleaded the Statute of Limitations and that Causa Actionis praedicte c. accrevit above six years before the Writ brought To this the Defendant demurred and the Cause of the Demurrer was upon the late Statute for reviving of Process anno primo Willielmi Mariae by which it is provided in regard there was an Interruption of the Government and proceedings of Law from the 11th of September 1688. to the 13th of February following that the time within those Days should not be accounted as any part of the six years to barr an Action by the Statute of Limitations or of the six Months for bringing a Quare Impedit c. so as it was urged that the Defendant should have shewn that six Years and so many Days were elapsed as are between the 11th of December and the 13th of February For tho' six years may be passed yet the Plaintiff may be within time by reason of the said Statute But the Court were of Opinion that the Defendants Plea was well and this should be shewn of the Plaintiffs part for the Statute does not alter the Form of Pleading but that shall be as it was before and the Plaintiff if the Matter will bear it is to help himself upon the said Statute The old way upon the Statute of Limitations was for the Defendant to plead the Statute at large but of late years the General Pleading of Non assumpsit infra sex annos has been allowed Warren versus Sainthill Devon ' ss SAMUEL SAINTHILL nuper de Bradmuch in Com' praedict ' Armig ' Johannes Savery nuper de Bradmuch in Com' praedict ' Husbandnian attach ' fuer ' ad respondend ' Thomae Warren gen ' de placito Transgr ' super Casum c. Case for stopping up of a Foot way The Plaintiff says That was possest he and Inhab of in an ancient Messuage And that habuit habere debuit a Foot-way for himself and his Servants Et unde idem Thomas per Johannem Prowse Attorn ' suum Queritur quod cum praedict ' Thomas vicesimo nono die Septembris anno regni domini Regis dominae Reginae nunc primo continue postea usque primum diem Januarii tunc ê“x ' fequen ' fuit possessionat ' inhabitans de in quodam antiquo Mesuagio scituat ' jacen ' in villa de Watterstaffe infra paroch ' de Bradmuch praedict ' ac ê“ totum tempus ill ' quandam viam pedestrem ducen ' à Villa de Watterstaffe praedict ' in per trans quaedam Clausa voc ' Crollands Smiths Down and Tulver Park infra paroch ' de Bradmuch praedict ' usque ad villam de Bradmuch in Bradmuch praedict ' pro se servientibus suis ad eundem redeund ' omnibus temporibus ad libitum ejus tanquam ad Mesuag ' As belonging to his Messuage praedict ' spectan ' pertinen ' habuit de jure habere debuit praedicti Samuel ' Johannes machinan ' intenden ' ipsum Thomam minus rite perturbare ipsum de via praed ' impedire deprivare praedict vicesimo nono die Sept ' Anno primo supradicto apud paroch ' de Bradmuch quaedam Fossa Trencheas ex transverso viae praedict ' The Defendant to disturb him in the Way dug Ditches and Trenches cross the Way And erected Hedges and Fences cross it Whereby he was hindred of his Way in t ' Villas de Watterstaffe Bradmuch praedict ' fodier ' fecer ' ac etiam viam ill ' ibedem cum quibusdam sepibus fensuris ex transverso viae praedict ' eject ' obstruxer ' praecluser ' per quod idem Thomas à via praedict ' in forma praedict ' habend ' à praedict ' vicesimo nono die Septembris usque praed ' primum diem Januarii Anno primo supradicto penitus impedet ' deprivat ' fuit ad dampnum ipsius Thomae quadragint ' librar ' Et inde ê“ducit sectam c. To this the Defendant pleaded a frivolous Plea and the Plaintiff demurrs and the Defendant joyned in the Demurrer and Judgment was given for the Plaintiff Warren versus Sainthill IN an Action upon the Case for Stopping of a Way the Plaintiff declared that he was possessed and an Inhabitant of and in a certain ancient Messuage the 29th of Sept. in the first year of the now King and Queen and so continued to the first day of January then next following and for all that time had a Foot-way over the Defendant's
may be sold Noell versus Robinson THe Plaintiffs Father being seised in Fee of a Foreign Plantation devised it to the Plaintiff and made the Defendant Executor The Executor let it for years reserving Rent in Trust for the Plaintiff who now Exhibited his Bill to have his Rent The Defendant Confessed the Devise of the Testator and the Lease made by himself but said That great Losses had fallen upon the Testator's Estate and that he paid and secured which is payment in Law for the Debts of the Testator to â— great value and that he hoped he should be permitted to reimburse himself by the receipt of this Rent notwithstanding the mentioning of the Trust as aforesaid The Cause came to Hearing and the Court Decreed for the Plaintiff For altho' a Legatee shall refund against Creditors if there be not Assets and against Legatees all which are to have these proportion where the Assets fall short yet the Executor himself after his Assent shall never bring the Legacy back But if he had been sued and paid it by the Decree of this Court the Legatee must have refunded as if a Debtor to a Bankrupt pays him voluntarily he must pay him over again Otherwise of payment by Compulsion of Law Note My Lord Chancellor said That if they give Sentence for a Legacy in the Ecclesiastical Court a Prohibition lies unless they take Security to Refund Note also in this Case that tho' it be an Inheritance yet being in a Foreign Country 't is looked upon as a Chattel to pay Debts and a Testamentary thing It was Objected That this could not be taken for an Assent for if so how could the Executor let it But the Court said that it did tantamount to an Assent and being a lawful Act a little matter will be taken for an Assent Anonymus A Bill was Exhibited by the Assignees of Commissioners of Bankrupts to have an Account against the Defendant of the Bankrupts Estate The Defendant pleaded that he was but Servant to the Bankrupt and had given an account of all to his Master and likewise had been Examined before the Commissioners upon the whole Matter Vpon Hearing his Plea my Lord Chancellor Over-ruled it and Ordered that he should Answer Anonymus IF a man makes a Lease or devise an Estate for Years he being seised of an Estate of an Inheritance for payment of Debts if the Profits of the Lands surmount the Debt all that remains shall go to the Heir tho' not so exprest and albeit it be in the case of an Executor Barney versus Tyson THe Case was thus The Plaintiff in the Life of his Father being about 26 years of Age and having occasion for Money prevails with the Defendant to let him have in Wares to the value of 400 l and gives him Bond for 800 l to be paid if he survived his Father at which time an Estate would befall him of 5000 l per Annum and he having survived his Father he preferred his Bill against the Defendant to compel him to take his Principal Money and Interest And it was proved in the Case that the Defendant was Informed at the time of this bargain that the Father was ill and not like to live and he did live but a year and half after and that one Stisted a man very Infamous was employed in the transaction of this Bargain And the Plaintiff obtained a Decree in the time of the Lord Chancellor Fynch And now upon a Petition to the Lord Keeper North the Defendant obtained a Re-hearing And in maintenance of the Decree it was alledged that the hazard which was run was very little and such Bargains with Heirs were much to be discountenanced The Lord Keeper affirmed the Decree but said that he would not have it used as a President for this Court to set aside mens Bargains But this Case having received a Determination and the Defendant having accepted his Principal Money and Interest thereupon and there being only a slight Omission in the Enrolment of the Decree which if it had been done had prevented a Re-hearing and the Defendant having delayed his Application to him by Petition he would not now set the Decree aside Termino Paschae Anno 35 Car. II. In Cancellaria Hodges versus Waddington THe Case was thus An Executor wasted the Testator's Estate and made his Will wherein he devised divers of his own Goods and made his Son Executor Afterwards a Suit was commenced against the Son to bring him to an Account for the Estate of the first Testator which was wasted and pending that Suit the Son after the Bill brought against him by the Legatee of his own Goods delivered them to the Legatee and assented to the Legacy After which upon the Account against the Son it appeared that the first Executor had wasted the Goods of the first Testator to such a value And then the party at whose Suit the said Account was and who was to have the benefit thereof together with the Son and Executor of the first Executor preferred a Bill against the Legatee of the Goods to make him Refund and obtained no Relief especially for that he had made the Executor Plaintiff who should not be admitted to undo his own Assent But liberty being given to bring a New Bill against the Legatee and the said Executor the Cause came to Hearing and it was Decreed That the Legatee should Refund So that one Legatee that is paid shall not only Refund against another but a Legatee shall Refund against a Creditor of the Testator that can charge an Executor only in Equity viz. Upon a wasting by the first Executor But if an Executor pays a Debt upon a Simple Contract there shall be no Refunding to a Creditor of an higher Nature Note also The Principal Case went upon the Insolvency of the Executor Anonymus A Bill was brought setting forth a Deed of Settlement of Lands in Trust and to compel the Defendant who was a Trustee therein nominated to Execute an Estate The Defendant by Answer says That he believed that there was such a Deed as in the said Bill is set forth c. And upon the Hearing they would have read a Deed for the Plaintiff tho' not proved but upon a Commission taken out only against another Defendant to the Bill supposing it to be Confessed by the Answer But the Court would not permit the Reading of it for the Confessing goes no further than what is set forth in the Bill and will not warrant the Reading of a Deed produced altho' it hath such Clauses in it Anonymus A Bill was preferred against one to discover his Title that A.B. might be let in to have Execution of a Judgment The Defendant pleaded That he was a purchaser for a valuable Consideration but did not set forth That he had no Notice of the Judgment And it was Over-ruled for 't is a fatal Fault in the Plea Bird versus Blosse THe Case was thus One wrote a Letter signifying
Action But Twisden doubted and afterwards the parties waived their Demurrer and went to Issue Anonymus AN Information was brought upon the Statute of Usury for taking the 30th of May in the 20th year of the King 42 s pro deferendo 25 l for three Quarters of a year viz. from the 30th of August Anno 19. Vpon Not Guilty pleaded it was found for the King and moved in Arrest of Judgment that this was not within the Statute which extends only where there is an Usurious Contract in the beginning and there it makes the Security void Or if there be an Agreement after the Money lent for Forbearance upon Consideration of paying more than the Statute allows for Interest which is punishable in an Indictment or Information but the Money is not lost But in this case the time of Forbearance was past and the party might give what he pleased in recompence for it there being no precedent Agreement to enforce him to it Sed non allocatur For the Court said They would expound the Statute strictly and if liberty were allowed in this case the Brokers might oppress the People exceedingly by detaining the Pawn unless the party would give them what they would please to demand for the time after failure of payment Wingate and Stanton the Bail of William Stanton IT was Resolved That where a Scire facias goes against the Bail in this Court an two Nichils are Returned and Judgment is had thereupon no Writ of Error can be brought in the Exchequer Chamber but in the Parliament only Also after such a Return it cannot be Assigned for Error that there was no Capias awarded against the Principal But in that case the Bail is relievable only by Audita querela But if the Sheriff Returns a Scire feci they may plead it Fitz. N.B. 104. I. Nota A man cannot Release a Debt by his Will The King versus Saunders SAunders was Convicted before two Justices upon the Statute of 32 H. 8. cap. 6. for carrying of a Gun Which being removed by Certiorari was quashed because it was coram nobis Justiciariis Domini Regis ad pacem suam conservand ' wanting the word assignatis Anonymus AN Indictment was quashed because it was Justiciarii ad pacem conservand ' assign ' and not ad pacem Domini Regis neither would ad pacem publicam serve And for another Reason because it was ad Sessionem in Com' tent ' and not pro Com' But if it were ad Sessionem in a Borough Incorporated it were good tho' it were not pro Burgo Maleverer and Redshaw DEbt upon a Sheriffs Bond The Defendant pleads that there was an Attachment issued out of Chancery against him Returnable Octab ' Sanctae Trin ' and the Condition of this Bond was that he should appear Crast Sanctae Trin. and so he pleads the Statute of 23 H. 6. against it for that it was taken for Easiamento favore The Plaintiff Replies That the Writ was Returnable Crastino Sanctae Trin. And Traverses That the Bond was taken for ease and favour To which the Defendant demurs Vid. 11 Co. 10. a. supposing that he should have Traversed that the Writ was Returnable Octab. Sanctae Trin. which is the Matter of the Defendants Bar and the other is but the consequence or Conclusion Et Adjornatur Gregory versus Eades ERror to Reverse a Judgment given in an Inferiour Court where an Assumpsit was brought and the Plaintiff declared upon three several Promises and the Jury found two for him and the other non Assumpsit And Judgment was given for the two that he should recover but no Judgment for the third that he should be amerced pro falso clamore or that the Defendant eat inde sine die And for this Cause Error was assigned But Powys Argued for the Defendant in the Writ of Error that the Judgment should be affirmed as to the Two Promises for which it was perfect and cited Miles and Jacob's Case in Hob. 6. and 2 Cro. 343. where an Action was brought for Words declared to be spoken at several times and several Damages given and Judgment and a Writ of Error brought and assigned for Error that the Words spoken at one of the times were not Actionable which tho' they were not yet the Judgment was Reversed quoad them only But the Court said That it was not like this Case for here the Judgment was altogether Imperfect and so were inclined to Reverse it but gave further time Ante. Anonymus IN Replevin the Defendant avows for Rent Arrear Vpon non concessit pleaded the Jury find for the Avowant The New Statute says That the Defendant may pray that the Jury should enquire what Rent is arrear and that he shall have Judgment for so much as they find Now the Court was moved that this might be supplied by a Writ of Enquiry as if they omit to enquire of the Four Points in a Quare Impedit it may be so supplied 10 Co. Cheney's Case But the Court held this could not be so for the Defendant loseth the advantage of it by not praying of it As where a Tales is granted if it be not Entred ad requisitionem Querentis or Defendentis it is not good wherefore he was bid to take his Judgment quod returnum habeat averiorum at the Common Law Anonymus FOur Executors two of them are under Age quaere Whether they shall all sue by Attorney Note An Infant may bring an Action against his Guardian which pleads any thing to his prejudice Not so of an Attorney Wells versus Wells IN an Assumpsit the Plaintiff declares as Administratix to her Husband who in his Life-time agreed with the Defendant That they should be Partners in making of Bricks for J. S. and after his Death the Defendant promised the Plaintiff in Consideration That she had promised him to relinquish her Interest in the Partnership that he would pay her so much Money as her Husband had been out about the Brick And upon non Assumpsit pleaded it was found for the Plaintiff It was moved in Arrest of Judgment that here was no Consideration for the Plaintiff had no interest in the Partnership which being joynt must survive to the Defendant and she ought to have shewn how she relinquished her Interest But the Court held it a good Consideration for it may be there were Covenants that there should be no Survivorship and the Court will intend after a Verdict that there were which tho' they do not sever the joynt Interest in Law yet they give Remedy in Equity which to debar her self of is a good Consideration and being laid by way of Reciprocal Promise there needs no averment of performance Termino Sancti Michaelis Anno 21 Car. II. In Banco Regis William Bate's Case A Prohibition was prayed to the Commissary of the Archdeacon of Richmond to stay a Suit
against Bates a Schoolmaster who as it was alledged taught School without the Bishops Licence and it was granted because they endeavoured to turn him out whereas they could only Censure him he coming in by the Presentation of the Founder In a Feoffment of Tythes and Lands where there is no Livery if they do adjudge the Tythes to pass notwithstanding there is no Livery a Prohibition will lye In Debt upon a Lease at Will there must be an Averment that the Lessee occupied the Lands But it is otherwise upon a Lease for Years Anonymus THe Court was moved to grant an Attachment against a Justice of the Peace who upon Complaint refused to come and view a Force But the Court denied it and directed the party to bring an Action of Debt for the 100 l Forfeiture given by the Statute in that case It was said by the Court That in an Execution upon a Statute Merchant there is no need of a Liberate as there is upon a Statute Staple And in the Case of a Statute Staple the Conusee can bring no Ejectment before the Liberate neither can the Sheriff upon the Liberate turn the Terre-Tenant out of possession as he is to do upon an Habere facias possessionem Dier versus East AN Action was brought against the Defendant upon an Indeb ' pro diversis Mercimoniis venditis deliberatis to the Wife to the use of her Husband it being for her wearing Apparel And after Verdict for the Plaintiff it was moved in Arrest of Judgment that this Declaration being laid That the Sale was to the Wife tho' it was to the use of the Husband it was not good as if it had been sold to the Servant of the Plaintiff Nevertheless the Court were of Opinion That it being for her Apparel and that suitable to her Degree the Husband was to pay for it as had been Resolved in this King's time in Scot and Manby's Case in the Exchequer Chamber and that the Declaration was well enough Anonymus THe Defendant in an Action of Debt upon a Bond sued out an Injunction in Chancery where after the Case had depended for two years the Court was moved that the Plaintiff might accept of his Principal Interest and Charges The Court said If the Defendant comes before Plea pleaded and makes such a proffer they are ex debito Justitiae to allow it But now he having delayed the Plaintiff in Chancery two years it was in their discretion And the other three against the Opinion of Keeling thought fit to deny it Clarke versus Phillips al' UPon the Trial in an Ejectment the Title of the Plaintiff's Lessor appeared to be by a Remainder limited to him for Life upon divers other Estates and that there was a Fine levied and Proclamations passed but he within the Five years after his Title accrued sent two persons to deliver Declarations upon the Land as the course is upon Ejectments brought The Court Resolved that this was no Entry or Claim to avoid the Fine he having given no express Authority to that purpose and the Confession of Lease Entry and Ouster by the Defendant should not prejudice him in this respect In this Case Keeling and Twisden were of different Opinions in this Point Viz. If he that hath power of Revocation over Lands c. makes a Lease for Life whether it suspends the Power only as a Lease for years would do or extinguisheth it as a Feoffment The King versus Monk al' IN an Information for a Riot it was concluded contra formam Statuti 13 H. 4. which appoints Justice of the Peace upon complaint of Riots to View and Record them And after Verdict it was moved in Arrest of Judgment that this Information was not good it being grounded upon this Statute which only mentions Riots and appoints them to be punished in the manner there expressed But the Chief Justice Keeling was of Opinion that it being a Crime at the Common Law and mentioned in this Statute the Information was well concluded But the other Justices inclined to the contrary Anonymus DEbt upon a Bond Conditioned to perform Covenants in an Indenture The Defendant pleaded That there were no Covenants contained in the Indenture on his part to be performed The Plaintiff demands Oyer of the Indenture which is Entred verbatim and then Demurs which he could not well do before the Entry of it whereby it becomes part of the Bar so the cause of the Demurrer appears Then it was alledged by Saunders whose Hand was to the Plea That the Plaintiff could not have Judgment because he had set forth no Breach But the Court was much offended with him For they held the Plea in Bar meerly for delay and advised against the Statute of Westm 1. Robinson versus Pulford IN an Assumpsit the Plaintiff declared That the Defendant in Consideration that the Plaintiff would deliver such silver Threads and other Wares into the Shop of J. S. that he should require that he would see him paid Now after an Assumpsit pleaded and Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff had not averred in his Declaration that J. S. had not paid for the Goods For the promise to see him paid was no more than if he had said If J.S. doth not pay you I will in which Case such Averment must have been But the Court Resolved that a Promise to pay and to see him paid was all one and the Averment unnecessary Rushden versus Collins IN an Assumpsit the Plaintiff declared the Consideration to be pro opere preantea facto After Verdict for the Plaintiff it was moved in Arrest of Judgment that opere was too general and might intend so inconsiderable a matter as would not amount to a Consideration for the Plaintiff But they gave Judgment for they said labore or servitio had been adjudged sufficient Lee versus Edwards IN an Assumpsit the Plaintiff declared That in Consideration that he would employ his skill and pains and provide Medicaments for and Cure a certain person of a Pthysick that he would pay what he deserved and lays another Promise at the same time in Consideration as aforesaid and alledges the Promise somewhat varying from the first and concludes with an Averment That he had bestowed his pains and cured accordingly Vpon Non Assumpsit pleaded and a Verdict for the Plaintiff the Court was moved to stay Judgment because the Plaintiff had made no Averment of the Cure upon the first Promise and entire Damages were given so it was ill in all But the Court were of Opinion That in regard he had Averred it upon the second Promise so as it appeared upon Record that the Cure was done it aided the omission of it in the first especially being after a Verdict Nota There is an Inquisition upon every ones death that dies in the Kings-Bench by the Master of the Crown-Office and Coroner Pomfret versus Rycroft IN a Writ of
c. and in Replevin the Avowant is Actor and in Suffering of a Recovery the Tenant is the main Agent being to his use in no other be declared And it was an Error assigned in the Lord Newport and Mildmay's Case as appeareth by the Record yet it seems it was taken to be so plain as not fit to be insisted on Wherefore there is nothing of it in the Report of the Case 1 Cro. 224. yet there was all endeavour imaginable used to Reverse that Recovery and divers other Presidents there are of the same manner of Entry And if it can appear to the Court that there was a Guardian admitted the Form of the Entry shall not be so severely Examined as in the 4 Rep. 53. where there was no Entry of any Admission of the Guardian by the Court at all yet it appearing quod venit per Guardianum the Court would not Reverse the Judgment for Error And for the Book of the 2 Cro. 641. there were other Reasons which Reversed the Judgment and the Admission ad prosequendum was not mentioned until the Court upon the other Matters had Resolved the Reversal And the Books there cited do not at all prove it to be Error And ad sequend ' ur Guardianum is not at all amiss for Ut many times notes an Identity Seisitus ut de feodo makes Conusans ut Ballivus c. And for the Entry of the Appearance it may be taken that the Guardian came in proper Person and so it ought to be But if propria persona refers to the Infant he must have Reversed the Recovery during his Nonage And so Twisden saith it hath been resolved in this Court lately Vid. Roll's 1st Part 171 and 2d Part. 573. Anonymus SCroggs the King's Serjeant moved to have at Trial at Bar in an Indictment of Perjury and for some further Time urging that it was the King's Case The Chief Justice said The King was no otherwise concerned in it than in maintenance of the Common Justice of the Realm It was usually the Subjects Interest and His Prosecution and therefore must not deviate from the Course in Civil Causes and not to be resembled with Causes wherein the King is concerned in point of Interest Anonymus A Prohibition was prayed to stay a Suit for Tythes of Wood. The Plaintiff suggested That he had a House in the Parish and that the Wood was cut for Fuel burnt in his House But the Court said that this would not serve unless it were expressed that the House was for maintenance of Husbandry by reason of which the Parson had Uberiores Decimas Barrett versus Milward al. A Scire facias was awarded against the Defendants upon a Recognizance which they entred into as Bail for a Plaintiff in a Writ of Error that he should prosecute it with effect or pay the Money if the Judgment were affirmed They plead That he did prosecute it with effect and that the Judgment was not yet affirmed The Plaintiff Replied Protestando that they did not Prosecute with effect Pro placito that the Judgment was affirmed by the Justices of the Common Bench and Barons of the Coif Et hoc paratus est verificare per Recordum To which the Defendants Demurred generally Because it was not alledged That there were Six Justices and Barons present when the Judgment was affirmed For 27 Eliz. c. 8. which gives them Authority requires that there should be Six at the least Sed non allocatur For the Defendant should then have pleaded Nul tiel Record ' for if there were not Six their Proceedings were coram non Judice Nota If a Certiorari be not Returned so that an Alias be awarded the Return must be as upon the first Writ and the other must be Returned quod ante adventum istius brevis the Matter was certified Gybbons versus North. IN an Assumpsit the Plaintiff Declared That whereas at the Defendants Request he was bound with him in a Bond of 200 l he in Consideratione inde promised to save him harmless and obliged himself his Heirs and Executors in 200 l to the performance of it and the Money not being paid the Defendant did not save him harmless But per debitum legis processum he was forced to pay the Money The Defendant Demurred because he did not alledge That he did not pay him 200 l For obliging of himself in the penalty of 200 l to save him harmless He hath election either to save him harmless or pay 200 l But the Court gave Judgment for the Plaintiff for there is no Election in this case being no more than an ordinary Promise to Save harmless And this Action is brought upon the Plaintiffs Dampnification which is a Breach and he doth not demand the 200 l Also a Verbal Contract cannot create a Penalty to oblige the Heir Jordan versus Forett ERror to Reverse a Judgment given against an Executor in Debt in the Common Pleas where the Executor pleaded divers Judgments formerly obtained against him and the last he pleads thus That one Eliz. H. in eadem Curia implacitasset c. and Recovered in Trinity Term but expresses not in what Year and there upon a general Demurrer Iudgment was given for the Plaintiff and it was assigned for Error That this Incertainty in respect of Time was good at least upon a general Demurrer But the Court affirmed the Judgment For if such Pleading should be allowed it would be very inconvenient to the Plaintiff and very difficult to find out the Record and then how should he plead that it was kept on foot by Fraud or such like But if it had been ascertained when the Plea commenced tho' no time alledged when the Judgment was obtained yet that would have been good for the Continuances would have directed to the finding of it Twisden said That the Course in this Court was a in Scire facias upon a Judgment to say quod cum recuperasset without alledging any Time But in the Common Pleas they set forth the Term. Putt versus Vincent IN Debt for 3900 l the Plaintiff declared upon Articles of Agreement wherein Putt Covenanted to Convey certain Lands to one Nosworthy and there are also certain Covenants from Nosworthy to the Plaintiff and from the Defendant Vincent who after Imparlance pleads that Nosworthy sealed the Deed and is still alive To which the Plaintiff Demurred And it was alledged by Jones That this being after Imparlance could not be pleaded it being only in Abatement and that he Commences his Plea Actio non as if it were a Plea in Bar. And the Court inclined that it was insufficient for both Causes But then it was said It appears by the Deed to which Nosworthy was a party that the Plaintiff could not sue the Defendant alone and so of his own shewing he could not have Iudgment But it was answered That it did not appear that Nosworthy ever Sealed the Deed. Et Adjournatur Postra Gifford versus
Perkins IN Debt upon a Bond entred into Eliz. Perkins who was the Plaintiffs Wife and he as her Administrator brings this Action The Defendant pleads That he delivered the Bond to one Eliz. Perkins his Sister quae obiit sola innupta absque hoe that he delivered it to Elizabeth Perkins the Plaintiffs Wife And to that the Plaintiff Demurres Specially For if it be taken that there are two of the name the Defendant should have pleaded non est factum for it amounts to no more Or at least he ought to have induced his Plea that there were two Elizabeth Perkins But this Traverse is designed to bring the Marriage in question which is not to be tried now Wherefore the Court gave Iudgment for the Plaintiff Twisden said If the Issue be Whether the Wife of such a Man or no This is to be tried per Pais For if she be a Wife de facto it serves upon the Issue But Loyalty of Matrimony is to be tried by the Certificate of the Bishop only 2 Cro. 102. Dightons Case A Mandamus was prayed to the Corporation of Stratford super Avon to restore Dighton the Town Clerk They returned their Letters Patents of Incorporation whereby they had Authority to Grant the Office of Town Clerk Durante bene placito and that he was amoved from his Office by the Mayor and Burgesses It was said that here appeared no Cause of amoval upon the Return which was manifestly needless having Authority to turn them out at their Pleasure But Twisden said It hath béen held that where any such like Power is to chuse one into a Iudicial Office as an Alderman whose place concerns Judicature that they cannot amove him without Cause But this was in a Misterial Office It was further moved That it did not appear that they had discharged him by any matter in Writing under Seal and it could not be by Parol Sed non allocatur for it is returned to be done by the Mayor and Burgesses and a Corporation cannot do any thing by Parol Post An Executor obtained Judgment in Debt in this Court and was afterwards upon an Information here convicted of Forging the Will It was also made void by Sentence in the Ecclesiastical Court Whereupon the Court was moved to vacate the Judgment which they ordered accordingly and the Cause of Vacuteing thereof to be entred upon the Record Vide Ante in Paris's Case King versus Atkins IN Debt upon a Bond the Condition recited That whereas the Plaintiff was bound with the Defendant being an Excise-Man that he should render a true Account in the Exchequer that the Defendant should save him harmless at all times c. The Defendant pleaded non fuit damnificatus The Plaintiff replied That a Scire facias issued out against him c. To which the Defendant demurred because he did not alledge that he gave notice This being spoken to divers times the Court thought notice not requisite in this Case no more than upon a Promise to pay so much at the others Marriage or return into England vid. Hob. 112 113. 1 Bulst 12 and 13. Where it is held upon a Promise notice is not necessary otherwise upon a Bond because of the penalty Ante Chester versus Wilson TRin. 21 Car. 2. Rot. 498. The Case was two Ioyn-tenants the one Grants Bargains and Sells all his Estate and Interest to the other It was held clearly by all the Court That this amounted to a Release but it must be pleaded quod relaxavit for one Ioyn-tenant cannot grant to another Wilson versus Armorer IN Debt against the Heir upon the Bond of his Ancestor who pleaded riens per discent the Jury find a Special Verdict to this effect That the Father was seised of a Mannor in Fee and made a Feoffment of it excepting two Closes for the life of the Feoffor only and refered it to the Iudgment of the Court whether these Closes descended to the Defendant or not So that the Question was Whether the Closes were well excepted or passed by the Feoffment And it was argued by Levins for the Plaintiff That by these words the two Closes were Totally excepted and that the Law should reject the latter words because they cannot take effect according to the Parties intention to reserve to the Feoffor a particular Estate If one surrendred a Copyhold to the use of J. S. and his Heirs which Estate to begin after his death adjudged in 2 Rolls 261. a present Fee simple passed 3 Cro. 344. A Man said to his Son being upon his Land Stand forth Eustace my Son reserving and Estate for mine and my Wifes Life I do give you this Land to you and your Heirs Resolved there that this is a good Feofment Moor 950. Popham 49. A Man possessed of a Term in an House in the right of his Wife granted it excepting the Cellar pro usu suo proprio and held that by these words it was altogether excepted out of the grant 1 Anderson 129. Serjeant Turner è contra For that it is but one Sentence and cited 38 H. 6. 38. An Addowson was granted saving the Presentation to the Grantor during his life and held void and Pl. Com. 156. where it is said if a Termour granted his Term after his Death it is void But if in two Sentences as to grant his Term Habendum after his Death there the Habendum is only void Er Adjurnatur Postea Love versus Wyndham AN Action upon the Case upon an Issue directed out of Chancery upon a Special Verdict the Case was George Searl being seised of the Mannor of N. Demised the same to Nich. Love for 99 years if 3 Lives should so long live N. Love devised it to Dulcibell his Wife the remainder to Nich. his Son for life and if he the said N. the Son should dye without Issue then to Barnaby Love the Plaintiff The Executor assented and whether the Devise to Barnaby were good was the Question Jones for the Plaintiff this is a good possibility I shall make two points First If a Termor Devise first to one and then to another whether he may Devise it over Secondly Whether the Limitation here after the Death without Issue be a good Limitation over First He may make a third Limitation which is a Possibility upon a Possibility at least he may make 2 or 3 such Limitations over I can't certainly say where it will end It can't be denied but that a Termour may Devise first to one for life and after to another 8 Co. 95. But I say he may go further and that will appear by Reason and Authority First By Reason The Reason given why the Executory Devise in the first case is good is because 't is in Construction of Law as much as if he had Devised it to the last first if the first Man should dye within the Term and then had Devised that the first should hold during life and without such a transposition it cannot
Again He alledges a Custom of Dimising Copyholds and doth not say for what Estate neither doth he name any Copyholders Also he should have averred that the Beasts were levant and couchant One prescribed to have omnes Spinas yet laid them to be spent in a certain House And the Verdict shall not help the Defect as this Case is but if the Copyholder had pleaded so himself it should For after a Verdict it is intended they were levant and couchant but that cannot be in case of a Stranger Iustifying by Licence He took another Exception also That a Licence was pleaded here and not shewn to be by Deed as it appears it ought to be 2 Cro. 575. As to the first it was Answered That this Prescription did not take all the Profit from the Owner of the Soyl for there might be Trees and Bushes growing and if any one should Dig the Soyl and discover Mines the Lord should recover Damage in respect of the Mines Such an Interest as this might commence by Grant and therefore lies in Prescription The same Objection might be made against the sole Feeding for some part of the Year for the property of the Soyl remains in the Lord at that time also when the Profit is divided from him and it may be as well allowed for a longer as a shorter time this is no more than the Herbage or Vesture of the Land And Prescription to dig Turves cuts as deep into the Profits and yet that may be in one and the Soyl in another As to the second It is not needful to shew for what Estates the Copyholds have been demised for it is not laid by way of Prescription in them for then it would be material to shew that they had such Estates as might supports a Prescription but as a Custom in the Mannor and to have named them would have made a Repugnancy viz. that such particular Copyholders had the sole Feeding time out of mind 3 Cro. 311. Yelv. 187. Neither is it needful to alledge that the Beasts were levant and couchant in regard that he claims the sole Feeding which may therefore be with what Beasts he pleaseth And it is not needful that the Licence should in this case be by Deed for it passeth no Interest and serves but for an Excuse of Trespass and 't is for no certain time but only pro hac vice The Opinion of the Court inclined for the Plaintiff Sed Adjornatur Vide postea The Duke of Richmond versus Wise IN an Ejectment the parties had a Trial at Bar and a Verdict for the Plaintiff The Court were moved to set aside this Verdict upon an Affidavit made of these Misdemeanors in the Jury viz. That they had Bottles of Wine brought them before they had given their Verdict which were put in a Bill together with Wine and other things which were eat and drank by the Servants of the Jury and the Tipstaves that attended them at the Tavern where they were consulting their Verdict That this Bill after the Verdict given was paid by the Plaintiffs Solicitor and that after they had given up their Privy Verdict they were Treated at the Tavern by the Plaintiffs Solicitor before their affirmance of it in Court Counsel being heard on both Sides as to these matters the Court delivered their Opinions seriatim that the Verdict should stand They said they were not upon a discretionary setting aside of the Verdict as when the Jury goes against Evidence but whether these miscarriages shall avoid it in point of Law They all agreed That if the Jury eat or drank at the charge of the party for whom they find the Verdict it disannuls their Verdict but here it doth not appear that the Wine they drank was had by the order of the Plaintiff or any Agent for him 'T is true in regard his Sollicitor paid for it afterwards it doth induce a presumption that he bespoke it but that again is extenuated by its being put into a Bill with other things that were allowable and if the Verdict should be quashed for this Cause it must be entred upon the Roll 1 Cro. 616. that it was for drinking at the Plaintiffs charge and it is not proved that this Wine was provided by him And as to the other matter That they received a Treat from the Plaintiff after their Privy Verdict given and before it was given up in Court that shall not avoid their Verdict But if the Defendant had treated them and they had changed their Verdict as they might have done in Court it should then have been void Co. Lit. 227. b. It after the Jury be agréed on their Verdict which the Chief Justice said must be intended such an Agréement as hath the signature of the Court put upon it viz. A Privy Verdict They eat and drink at the charge of him for whom they do pass it It shall not avoid the Verdict and if it should The Court said most Verdicts given at the Assizes would be void for there 't is usual for the Jury to receive a Collation after their Privy Verdict given from him for whom they find But such practice ought not to be and if any of the Parties their Attorneys or Sollicitors speak any thing to the Jury before they are agreed relating to the Cause viz. That it is a clear Cause or I hope you will find for such an one or the like and they find accordingly it shall avoid the Verdict but if words of Salutation or the like pass between them as was endeavoured to be proved in this Case they shall not Also if after they depart from the Bar any matter of Evidence be given them as Depositions or the like tho' the Jury swear they never looked on them yet that shall quash their Verdict But they all held in this Case that tho' there was great matter of Suspition yet there was not matter of clear proof as there ought to be sufficient to disannul this Verdict but they said it was a great Misdemeanour in the Jury for which they ought to be fined and that the Plaintiffs Sollicitor had carried himself with much blame and indiscretion and the two Tipstaves which attended the Jury for that they were not more careful but connived at these matters were fined the one 40 shillings who appeared to be most in fault and the other 20 shillings Barnard versus Michell HIll 22. 23 Car. 2. Rot. 865. The Case was moved again and by the Opinion of all the Court Iudgment was given for the Plaintiff being after a Verdict For though the pleading that he brake all the Covenants would not have béen good upon a Demurrer as they said for two Reasons First For that it would have been double in regard that the breach of any one of them would have intituled the Plaintiff to the penalty Secondly For that some of the Covenants were such as he ought to have assigned a special breach upon that it might have been in
poena c. of if so then it is no Offence by the Act. To which it was Answered that if the Body of the Act were That all persons which should resort to such place which were not Summoned or Subpoena'd thither should forfeit c. then 't is true it must be averred But that matter comes in a Proviso of the Act viz. That it shall not extend of such Cases and therefore if there were any such thing the Defendant is to plead it Wherefore the Court ordered Judgment to be Entred for the Plaintiff Ante. Anonymus IN an Action of Trover and Conversion After Verdict for the Plaintiff it was moved in Arrest of Judgment that the Action was commenced in Hillary Term and the Conversion alledged to be the 3d of February in the same Term and the Bill filed relates to the first day of the Term so before the Cause of Action But it was Resolved by the Court that if the Bail were Entred after the 3d Day of February it is well enough for it is that which gives this Court Iurisdiction So an Ejectment may be brought upon a Lease made in the same Term So the Statute of Limitations may be pleaded to an Action if the time be elapsed before the Day wherein the Bail is filed though not before the 1st Day of the Term wherein the Action is brought For the Action shall not be said to be depending until the Bail is filed And upon Search it was found that the Bail was filed the last Day of the Term. Putt versus Nosworthy IN Debt the Plaintiff declared upon certain Articles whereby the Plaintiff Covenanted to convey certain Lands to the Defendant and in Consideration thereof the Defendant Covenanted to pay a certain Sum to the Plaintiff After a General Imparlance the Defendant prayed Oyer of the Deed whereby it appeared that the Defendant and one Vincent Covenanted that he or Vincent should pay the said Sum. And he avers that Vincent sealed and delivered the Deed and demands Judgment of the Bill si actionem poterit habere versus eum solummodo To this the Plaintiff Demurred which was Entred thus Et dicit quod ab actione praedicta praecludi non debet quia materia insufficiens c. And the Defendant joyns Quod materia praeallegat ' sufficiens c. praedict ' le Plaintiff ab actione praedict ' praecludere Jones moved for the Plaintiff that the Defendant's Plea being in Abatement could not be admitted after an Imparlance and that a peremptory Judgment ought to be here given because he had concluded in Bar as well as Abatement For he doth not only demand Judgment of the Bill but saith actionem habere non debet and the Demurrer is joyned as upon a Plea in Bar. And it was agreed that if a man concludes a Plea in Abatement as in Bar if it be against him that pleads it Judgment peremptory is to be given But here the Conclusion is not actionem habere non debet but 't is added versus eum cum solummodo So if a man begins a Plea in Abatement actio non c. Judgment peremptory ought to be thereupon given But then it was said That although it were too late to urge this Matter in Abatement yet it appeared upon the Deed shewn that the Plaintiffs Declaration was insufficient For it being If the Defendant or one Vincent should pay and the Plaintiff alledging that the Defendant had not paid is not enough to intitle him to his Action albeit that Vincent were no Covenantee or had ever Sealed and Delivered To which it was Answered and so Resolved by the Court that it appeared by the frame of the Deed that Vincent was as well party as the Defendant and it is too late now to averr that he did Seal and Deliver so it shall be taken that he did not and then it remains the sole Covenant of the Defendant And though the words are That the Defendant or Vincent shall pay that is no more than the Law would have implied if Vincent had Sealed And the Chief Justice cited one Cartwright's Case in Debt for Rent where the Indenture of Lease was a Demise from Cartwright and another Ioyntenant with him reserving a certain Rent to them both but the other never Sealed Cartwright brought Debt and declared of a Demise of the Moiety and Reservation of the Moiety of the Rent And upon Nil deber the Matter aforesaid was Specially found And it was moved First That the Lease being by Indenture whether the whole Rent were not well reserved to Cartwright as by Estoppel or whether it were not good to him as to a Stranger for one Moiety or whether it should not be good to him as an intire thing which was reserved to him as well as the other But the Court Resolved that it was good only for a Moiety as he had declared For there being an Expectation of the others Sealing which never was done the Deed as to one Moiety of the Land and the Rent reserved had no effect And where one Declares against one upon a Deed whereby it appears that another was bound with him it shall not be intended that the other Sealed unless averred on the Defendants Side Otherwise where the Declaration is upon Matter of Record And it was held by the Court That if the Declaration were defective in this yet it was but in Matter of Form For he saith that the Defendant did not pay sed adhuc injuste detinet which is an Averment tho' unformal that the Money is not yet paid neither by the one nor other And so it hath been held where in Debt against an Executor it is averred that the Executor did not pay it adhuc injuste detinet and not averred that the Testator had not in his life time that after a Verdict this is aided And they held that a Judgment ought to be given quod respondeat ouster for the joyning Demurrer as upon a Plea in Bar is not material besides the Fault begun on the Plaintiffs part Tailour versus Fitzgerald ERror upon a Judgment given in the King's Bench in Ireland in Ejectment where the Plaintiff declared that J. S. demised to him per quoddam Scriptum Obligatorium c. habend ' Ã die datus Indenturae praedict ' And upon Not guilty pleaded it was found for the Plaintiff and he had his Iudgment It was assigned for Error that there was no time when this Lease should commence for it was Habend ' after the Date of the aforesaid Indenture and there was none before it being Scriptum Obligatorium and not Indenturam But the Court Resolved that the Writing shall be intended an Indenture and tho' called Scriptum Obligatorium which is improper yet it may be said every Deed obligeth or if it shall not be intended Indented then the Lease shall commence presently as if it had been Habend ' from the 40th of September Crossing versus Scudamore IN Trespass Quare clausum fregit the
here to forbear to Sue generally but to stay a Suit against the Defendant whom he could not Sue To which it was answered That after a Verdict it shall be intended there was cause of Suit as Hob. 216. Bidwell and Cattons Case And Attorney brought an Assumpsit upon a Promise made to him in Consideration that he would stay the Prosecution of an Attachment of Priviledge and there held that it need not appear that there was cause of Suit for the Promise argues it and it will be presumed And here 't is a strong intendment that the Bond was made in Common Form which binds the Heirs But Iudgment was given against the Plaintiff for the Court said it might be intended that there was cause of Action if the contrary did not appear which it doth in this Case for the Bond cannot be intended otherwise than the Plaintiff himself hath expressed it which shews only that the Ancestor was bound And whereas it was said by the Plaintiff's Counsel that this would attaint the Jury they finding Assumpsit upon a void Promise Hale said there was no colour for that conceit The Plaintiff having proved his Promise and Consideration as 't was laid in the Declaration which is the only thing within their charge upon Non Assumpsit modo forma Bulmer versus Charles Pawlet Lord Saint John IN an Ejectment upon a Tryal at Bar this question arose upon the Evidence Tenant for Life Remainder in Tail to J. S. joyn in a Fine J.S. dies without Issue whether the Conusee should hold the Land for the Life of the Tenant for Life Serjeant Ellis pressed to have it found Specialy tho' it is resolved in Bredons Case that the Estate of the Conusee shall have Continuance but he said it was a strange Estate that should be both a Determinable Fee and an Estate pur auter vie and he cited 3 Cro. 285. Major and Talbots Case where in Covenant the Plaintiff sets forth that a Feme Tenant for Life Remainder in Fee to her Husband made a Lease to the Defendant for years wherein the Defendant covenanted with the Lessors their Heirs and Assigns to repair and they conveyed the Reversion to the Plaintiff and for default of Reparations the Plaintiff brought his Action as Assignee to the Husband And resolved to be well brought because the Wives Estate passed as drowned in the Fee The Court said Bredons Case was full in the point but the Reason there given Hale said made against the Resolution for 't is said that the Remainder in Tail passes first which if it does the Freehold must go by way of Surrender and so down but they shall rather be construed to pass insimul uno flatu Hob. 277 In Englishes Case it was resolved it Tenant for Life Remainder in Tail to an Infant joyn in a Fine if the Infant after Reverse the Fine yet the Conusee shall hold it for the Life of the Conusor 1 Co. in Bredons Case and he resembled it to the Case in 1 Inst a Man seized in the right of his Wife and entituled to be Tenant by the curtesie joyns in a Feoffment with his Wife the Heir of his Wife shall not avoid this during the Husbands Life Nevertheless he told Ellis That he would never deny a Special Verdict at the request of a Learned Man but it appearing that he Plaintiff had a good Title after the Life should fall the Defendant bought it of him and the Jury were discharged Sacheverel versus Frogate PAs 23 Car. 2. Rot. 590. In Covenant the Plaintiff declared That Jacinth Sacheverel seized in Fee demised to the Defendant certain Land for years reserving 120 l Rent And therein was a Covenant that the Defendant should yearly and every year during the said Term pay unto the Lessor his Executors Administrators and Assigns the said Rent and sets forth how that the Lessor devised the Reversion to the Plaintiff an for 120 l Rent since his decease he brought the Action The Defendant demanded Oyer of the Indenture wherein the Reservation of the Rent was yearly during the Term to the Lessor his Executors Administrators and Assigns and after a Covenant prout the Plaintiff declared and to this the Defendant demurred It was twice argued at the Bar and was now set down for the Resolution of the Court which Hale delivered with the Reasons He said they were all of Opinion for the Plaintiff For what interest a Man hath he hath it in a double capacity either as a Chattel and so transmissible to the Executors and Administrators or as an Inheritance and so in capacity of transmitting it to his Heir Then if Tenant in Fee makes a Lease and reserves the Rent to him and his Executors the Rent cannot go to them for there is no Testamentary Estate On the other side if Lessee for a 100 years should make a Lease for 40 years reserving Rent to him and his Heirs that would be void to the Heir Now a Reservation is but a Return of somewhat back in Retribution of what passes and therefore must be carried over to the Party which should have succeeded in the Estate if no Lease had béen made and that has béen always held where the Reservation is general So tho' it doth not properly create a Fee yet 't is a descendible Estate because it comes in lieu of what would have descended therefore Constructions of Reservations have been ever according to the Reason and Equity of the thing If two Joynt-teants make a Lease and reserve the Rent to one of them this is a good to both unless the Lease be by Indenture because of the Estoppel which is not in our Case for the Executors are Strangers to the Deed. 'T is true if A. and B. joyn in a Lease of Land wherein A. hath nothing reserving the Rent to A. by Indenture this is good by Estoppel to A. But in the Earl of Clare's Case it was resolved That where he and his Wife made a Lease reserving a Rent to himself and his Wife and his Heirs that he might bring Debt for the Rent and declare as of a Lease made by himself alone and the Reservation to himself for being in the Case of a Feme Covert there could be no Estoppel altho' she signed and sealed the Lease There was an Indenture of Demise from two Joynt tenants reserving 20 l Rent to them both one only sealed and delivered the Deed and he brought Debt for the Rent and declared of a Demise of the Moiety and a Reservation of 10 l Rent to him And resolved that he might Between Bond and Cartwright which see before and in the Common Pleas Pas 40. Eliz. Tenant in Tail made a Lease reserving a Rent to him and his Heirs It was resolved a good Lease to bind the Entail for the Rent shall go to the Heir in Tail along with the Reversion tho' the Reservation were to the Heirs generally For the Law uses all industry imaginable to conform
against the rest which therefore was not affected by the Error The fourth was overruled for where the Party is present the Iudgment is always quod committitur as appeared by the Presidents Fifthly the Variances from the Statute were not held to be material for in Old writings 't is written Sea of Rome and declaring in Conscience and in my Conscience are the same The sixth Error was also disallowed for the words of the Statute are shall incur the danger and penalty of Praemunire mentioned in 16 R. 2. which doth not necessarily bind up to the Process Vid. 16 R. 2. 5. which makes this very clear but means that such Iudgment and Forfeiture shall be and it appearing that the Parties were present there was no need of any Process But as to the third Exception which was taken to the Venire they said they would be advised until the next Term and they told the Prisoners who were Quakers and had brought a Paper which they said contained their acknowledgment of the Kings Authority and Profession to submit to his Government and that they had no exception to the matter contained in the Oath but to the Circumstance only and that they durst not take an Oath in any Cause which they prayed might be read but it could not be permitted that their best course were to supplicate his Majesty in the mean time for his Gracious Pardon Radly and Delbow versus Eglesfield and Whital IN an Action sur 13 R. 2. cap. 5. 2. H. 4. cap. 11. for suing the Plaintiff in the Admiralty for a Ship called the Malmoise pretending she was taken piratice whereas the Plaintiff bought her infra corpus Com. It seems there was a Sentence of Adjudication of her to be lawful Prize in Scotland in April 1667. as having carried bellicos apparatus i.e. Contraband Goods in the late Dutch War and the Plaintiff bought her here under that Title The Libel was That the Ship belonged to the Defendants and about January 1665 was laden with Masts c. and had Letters of safe conduct from the Duke of York to protect her from Concussion c. and that certain Scottish Privateers did practise to take the said Ship and after the Defendants took her and being requested refused to deliver her and that ratione lucri cessantis damni emergentis they suffred so much loss c. The Defendants pleaded Not guilty to this Action and upon the Tryal would not examin any Witnesses but prayed the Opinion of the Court who said there was good Cause upon the Libel which now they must take to be true in the first instance for the Admiralty to proceed In 43 Eliz. it was resolved 1 Cro. 685. Yelv. 125. Sty 418. If Goods are taken by Pirates on the Sea tho' they are sold afterwards at Land yet the Admiralty had Conusans thereof for that which is incident to the original matter shall not take away the Iurisdiction and that is Law tho' there were another Resolution in Bingleys Case 1 Rolls 531 Hob. 78. 3 Jac. 7 Ed. 4. 14. and 22. Ed. 4. If Goods are taken by an Enemy and retaken by an Englishman the property is changed Otherwise if by Pirates And if in this Case the taking were not Piraticè it ought to have béen alledged on the other side Had the Sentence in Scotland béen pleaded in the Admiralty the Court would have given deference to it as if a Man had a Judgment in Communi Banco and should begin a Suit for the same in Banco Regis This might be made a good Plea to the Suit but not to the Iurisdiction for for ought appeared this might have been the first Prosecution and no Proceedings might have béen in Scotland This came to be tryed at the Nisi prius before Hales who was of the Opinion ut supra then But because it was a cause of weight he ordered it to be tryed at the Bar. And because 't was for his satisfaction and for a full Resolution the Jury was paid between the Parties Note A Proctour sworn a Witness said when this Cause was in the Admiralty there was a provisionate Decree as they call it or primum Decretum which is a Decree of the Possession of the Ship and upon that an Appeal to the Delegates but my Lord Keeper being informed that no Appeal to them lay upon it because it was but an interlocutory Decree upon hearing of Counsel he superseded the Commission When a Ship is so seized upon security given 't is the course of the Admiralty to suffer her to be hired out Watkins versus Edwards PAsch 22 Car. 2. Rot. 408. An Action of Covenant was brought by an Infant per Guardianum suum for that he being bound Apprentice to the Defendant by Indenture c. the Defendant did not keep 5 Eliz. c. 4. maintain educate and teach him to his Trade of a Draper as he ought but turned him away The Defendant pleads That he was a Citizen and Freeman of Bristol and that at the General Sessions of the Peace there there was an Order made that he should be discharged of the Plaintiff for his disorderly living and beating of his Master and Mistress and that this Order was Enrolled by the Clerk of the Peace as it ought to be c. To this the Plaintiff Demurrs The First question was Whether the Statute extends to all Apprentices or only such as are imposed upon their Master by the Justicies and compellable to serve And Hale and Moreton inclined That it did not extend to all Apprentices Twisden and Rainford contrary Secondly Whether they had power to discharge the Master of his Apprentice as they might è Converso Hale conceived they could not But cause the Servant to have due Correction in case the Master complained of him Twisden Rainsford and Moreton Contra. Hankworthy's Case For he may be so incorrigible that the Master cannot keep him without standing in continual fear and in Mich. 21 and Hill 2. 22 Regis nunc upon the removal of an Order of Sessions from York it was resolved That the Master might be eased of his Apprenetice by the Sessions upon just cause And Twisden said Shelton Clerk of the Peace for Middlesex informed him that such Orders are frequently made Thirdly The great question was whether the Defendant ought not to have applied himself to one Justice first as the Statute directs that he he might if he could have settled the business and if not then to go to the Sessions and not to go thither per saltum as upon the Statute of the 18 Eliz. cap. 3. The Sessions cannot make an Order for keeping of a Bastard but upon an Appeal from the two Justices which are first to make an Order Hale This case differs for the 18 Eliz. gives the first Men power to make an Order which shall bind the Parties until it is avoided by Appeal but this Statute of 5 Eliz. gives no Iurisdiction to
de gard in what County soever the Orphan was taken so they may punish an unlicensed Marriage Wallers Case 22 Jac. was the same with this which was resolved for the City It appears by the Return that Harwood was present in Court and Hale said they could not award Process into a Foreign County 3. It doth not appear by the Return that the Mayor and Aldermen are to have the Fine and then it shall not be so intended But in Eastwick and Langhams Case which Langham was fined for refusing the Office of a Sheriff being a Freeman it was held they might set the Fine tho' they were to have it themselves 4. It was held the Fine was not excessive But in regard there was no disparagement by the Marriage it was propounded by the Court that upon the submission of Harwood to the Court of Orphans that they should do well to remit the Fine St. Aubin versus Cox A Prohibition was prayed to the Court of the Compter in Woodstreet London to an Action of Debt there commenced for that the Defendant had pleaded before any Imparlance taken that the Cause of Action did arise at a place out of their Jurisdiction and offered to have Sworn his Plea and they refused to accept this Plea Vpon this Matter a Prohibition was granted for Inferiour Courts have not Cognizance of Transitory things which arise in places out of their Jurisdiction as F. N. B. 45. is But then 't is not sufficient to surmize such Matter for a Prohibition but a Plea to that effect must be tendred in the Inferiour Court and that before any Imparlance taken whereby the Jurisdiction would be admitted and it must be upon Oath and then if refused a Prohibition shall be granted or upon such Refusal a Bill of Exceptions may be made and Error assigned Fitz. N.B. 21. N. The King versus Serjeant and Annis THey were Indicted of Perjury committed in their Evidence given upon an Indictment of Barretry against Nurse the Record of which was recited in this Indictment and therein it appeared that the Venire was made Returnable coram J. S. J. N. Justiciariis praedictis and at a day certain and Judgment given and Error brought and assigned that the Venire being Returnable coram Justiciariis praedictis none but the same Justices could proceed and not those who late the next Assizes by virtue of a New Commission And therefore the Proceedings before them were coram non Judice and so no Perjury could be committed Secondly The Venire should not have been Returnable at a Day certain but ad proximas Assisas because 't is uncertain when the Assizes begin and if they should fall out to begin upon the very Day yet it would not help the Error in the first award of the Venire Sed non allocatur For the Statute of 1 2 E. 6. enables New Commissioners of Oyer and Terminer to proceed where the former left before whom the Matter commenced And for the other Exception it makes the Proceedings only Erronious and while the Record stands unreversed the Perjury may be well assigned It was said at the same Assizes that the Judges may Adjourn to a Day certain but if there be a Continuance over to the next Assizes there must be no day expressed But Inferiour Courts cannot make a Continuance ad proximam Curiam but always to a Day certain Stanlack's Case UPon an Inquisition super visum Corporis before the Coroner it was found that he died of a Meagrim at Greenwich Sir Edward Thurland moved for a Melius Inquirendum producing several Affidavits That Stanlack was Riding in the High-way and a Coach with six Horses rushing by him cast him from his Horse and killed him and that divers offered to prove this before the Coroner and he would not hear them And if this Enquest should stand the King would lose his Deodand and alledged that there were several Presidents of this Nature as in one Michael Bartholomew's Case and Toom's Case who Hanged himself at Hackney about 15 years since The Court said in those Cases it was proved that there was Practice with the Coroner to suppress the King's Evidence and so the Inquisition was set aside upon a Malê se gessit If a Coroner omits to enquire this Court as Supream Coroner throughout England may Enquire or may make Commissioners to Enquire or Commissioners of Oyer and Terminer may Enquire but then it is not Super visum corporis and therefore may be Traversed But Hale said Where a Coroner hath Enquired no Melius Inquirendum can go as upon an Office found after the Death of the King's Tenant For unless they could take some Exception to the Inquisition to quash it the Coroner could not Enquire again but if the Misdemeanour of the Coroner were somewhat more clearly made out the Court said they would set the Inquisition aside and cause a New one to be made Maynard's Case HE being produced as a Witness in an Action of Trover against Reynell Corey and others for 12000 l which the Defendants were charged to have conveyed away which was the Money of Mr. Luttrell lately deceased and belonged to Mrs. Luttrell now Plaintiff as Executrix He Swore that the Defendants had the Money and carried it out of the House wherein Mr. Luttrell died and upon his Evidence principally the Jury found the Defendants Guilty Now the last Easter Term which was about a year and an half since the Trial Maynard made an Affidavit in the Kings-Bench that Mrs. Luttrell had Arrested him amongst the rest for the Taking away of this Money and he being unable to put in Bail and apprehensive of the Ruin that lying in Prison would bring upon him he applied himself to Mrs. Luttrell who promised him Favour so that he would accuse Reynell and the other Defendants with the taking of the Money and be a Witness against them and that he was Examined before a Justice of the Peace one A. who did much urge him to depose against Reynell in this Matter And that by their Threats and Promises he was brought to give False Evidence and that what he said in his Testimony relating to the Defendants taking away the Money was untrue After this Affidavit made he was Indicted of Perjury in what he Witnessed in the Action of Trover and confessed the Indictment Mrs. Luttrell thinking this matter might disparage her Verdict brought an Information against him of Perjury committed in his Affidavit to which he pleaded Not Guilty but before the Trial made an Escape so that at the Day the Enquest was taken by Default The Court were at first in doubt whether they should proceed upon the Information the King having taken his Confession upon the first it seemed contradictory and repugnant to prosecute him upon this But in regard the Affidavit charged Mrs. Luttrell and others with having suborned him to perâ—ure himself he might be tryed upon that as another distinct Perjury if so be they should be
business to enquire of the Condition of her whom he will make his Wife Then the next thing to be considered is the Infancy of the Defendant and that is nothing in this Case Porter who was the probablest person to give notice is found to be an Infant too Conditions in Fact bind Infants Again the Condition here relates to an Act which she is capable of doing The Statute of Merton which Enacts Non currant usurae c. whereby Infants are exempted from Penalties yet in another Chapter gives the Forfeiture of the said double value to the Lord where his Ward Marries without his consent 'T is a restraint laid upon her in a matter proper for her Condition and with respect to her Condition that being and Infant she might advise with her Friends about her Marriage The Cases which have been objected do not come to this Case as the Opinion in Sanders and Carwells Case which might be good Law if it could be known what that case was for the words might either explicitly or implicitly require notice as if they were if he refused to pay c. or it may be no time might be set for payment for in Molineux Case there Rents were granted and after a Devise for the payment of them which naturally lie in demand Secondly There it concerned the younger Children to give notice for the Rents were not only to be paid to them but upon failer of payment the Land was Devised to them So that was a Concurrence of concern in them as to the performance of the Condition and the Estate they should acquire by the Breach Whereas the Plaintiff in this Case is not concerned in the performance of the Condition Thirdly The penning of the Condition were quite differs for 't is upon default of payment which implies notice must be first had In Frances Case there would have been no need of notice if the Devise had not béen to the Heir which is the only thing wherein it differs materially from this Case In Alfords Case the debate was occasioned by the special penning for it was thus that if thorough Obliviousness the Trusts should not happen to be performed Now there could be no Oblivion of that they never knew therefore there is some Opinion there that the Mayor and Citizens of L. ought to have had a precedent notice yet the Judgment is contrary for they could not have been barred by the Fine and Non-claim if notice had been necessary to the Commencement of their Title and 't is not found whether those to whom the Estate was devised before had notice so that this cause proves rather that there needs no notice in this case than otherwise Wherefore the Plaintiff must have his Judgment When my Lord Chief Justice had concluded Rainsford said he had spoken with Justice Moreton who declared to him that he was of the same Opinion Fitzgerald versus Marshall ERror of a Judgment given in the Kings Bench in Ireland in affirmance of a Judgment removed thither by Error out of the Common Pleas in Ireland By the Record it appeared that the Writ of Error to the Common Bench was directed Rob. Booth Militi Socijs suis quia in Recordo processu ac in redditione Judicij loquelae quae suit coram vobis Socijs vestris And the Judgment certified appeared to be in an Action commenced in the time of Sir R. Smith who died and Sir R. Booth made Chief Justice in his place before Judgment given And the Court here were of Opinion that the Record was not well removed into the Kings Bench there by that Writ which commanded them to remove Recordum loquelae coram R. Booth whereas the loquela commenced before R. Smith and the Titling of the Record is in such case placita coram R. Smith c. tho' some of the Continuances might be entred coram R. Booth and the Judgment given in his time and for this Cause the Judgment given in affirmance in the Kings Bench there was reversed Sir Samuel Sterling versus Turner ERror of a Judgment in the Common Bench in an Action upon the Case where the Plaintiff declared upon the Custom of London of Electing of two Men in the Office of Bridge-masters every year by the Citizens assembled in a Common Hall and a Custom that if two be Competitors he that is chosen by the greatest number of Votes is duely Elected and that if one in such case desire the Polls to be numbred the Mayor ought to grant the Poll. And shews that there was a Common Hall assembled the 18 of October 22. Regis nunc Sterling being Mayor and that then the Plaintiff and one Allet stood as Competitors to be chosen to that Office and avers that he had the greatest number of Voices and that he affirmed then and there that he had the greatest number which the other denying he requested the Mayor that according to the Custom they might go to the Poll and the Defendant not minding the Execution of his Office but violating the Law and Custom of the City then and there did maliciously refuse the numbering of the Polls but immediately made Proclamation and dismissed the Court by which he lost the Fees and Profits of the Place which he averred belonged unto it Vpon Not guilty pleaded and Verdict for the Plaintiff after it had béen several times argued in Arrest of Judgment that this Action did not lie it was adjudged for the Plaintiff by Tyrrel Archer and Wyld Vaughan dissenting And now Error was brought and assigned in the matter of Law and argued for that it was incertain whether the Plaintiff should have been Elected and that he could not bring an Action for a possibility of damage and this was no more not being decided who had the greatest number of Voices But the Court were clear of Opinion that the Judgment should be affirmed for the Defendant deprived the Plaintiff of the means whereby it should appear whether he had the greatest number of Electors or no. And Hale said it was a very good President and so it was adjudged by both Courts One D. of Bedfordshire Esquire was indicted of High Treason for coyning a great number of counterfeit pieces of Guinnies of Gold 23 Regis nunc and being Arraigned at the Bar he pleaded the Kings Pardon which was of all Treasons and of this in particluar but did not mention that he stood indicted Twisden said that my Lord Keeling was of Opinion that such a Pardon was not good But Hale said it might be well enough in this case but in case of Murther it is necessary to recite it because of the Statute of 27 E. 3. 2. vid. 10 E. 3. 2. 14 E. 3. 15. and so it was allowed The Lady Chesters Case A Prohibition was prayed to the Prerogative Court of Canterbury Sir Henry Wood having devised the Guardianship of his Daughter by his Will in VVriting according to the Act of this King to the Lady Chester his
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
legitimum Granting of Administrations was originally Temporal an came to the Churchmen by the Indulgence of Princes and therefore must in some sort be governed by the Temporal Laws In Administrations the Whole Blood ought to be preferred before the Half Blood for Next of Kin shall be taken to be meant by the Statute such as our Laws judge to be so Rolls tit Prohibition 303. and so it was held in one Brown's Case before the Delegates in 8 Car. This being a New Case the Court gave no Opinion but Adjourned it to the next Term. Postea Termino Paschae Anno 29 Car. II. In Banco Regis NOte Where Justices of the Peace find a Force and make a Record of it upon their View they are to Commit the Offenders but cannot restore the Possession Anonymus A Prohibition was prayed to a Suit in the Spiritual Court for Money taxed for the Reparation of the Church upon a Surmize that the Tax was imposed upon one part of the Parish omitting the rest And for this was cited Rolls tit Prohibition 291. in the Point But the Court doubted in regard it was not alledged That they had offered that Plea in the Ecclesiastical Court because Reparation of Churches is proper for their Cognizance But the Prohibition was granted and the other might Demur if they thought fit But afterwards in this Term it was Countermanded Anonymus A Prohibition was prayed to the Admiralty where there was a Libel for a Ship taken by Pirates and carried to Tunis and there Sold for that it did not appertain to the Court to try the Property of the Ship being sold upon Land Curia In regard it was taken by Pirates it is originally within the Admiral Jurisdiction and so continues notwithstanding the Sale afterwards upon the Land Otherwise where a Ship is taken by Enemies for that alters the Property And this was the Opinion of the Court in Eglesfield's Case in my Lord Hales's time contrary to my Lord Hobart in the Spanish Ambassador's Case 78. in the 1. Cro. 685. they have Cognizance of the Case of the Pirate because incident to the Principal Matter But afterwards it was observed upon the Libel that there was no mention made That the Ship was taken super altum Mare And tho' there was contained therein very much to imply it yet the Court held that to be absolutely necessary to support their Jurisdiction Note One taken upon an Excom ' Cap ' was Discharged because the Writ de Excom ' Cap ' was not delivered into this Court and Enrolled as is required by the Statute Robinson versus Woolly IN an Ejectment upon a Special Verdict the Case appeared to be thus A Clerk was Admitted and Instituted to a Benefice within the Diocess of Gloucester whilst the Bishoprick was Vacant and a Mandate from the Archbishop for Induction but before it was Executed by the Archdeacon a new Bishop of Gloucester was Consecrated and whether the Induction coming after was sufficient was the Question That it was It was Argued that after the Mandate made it was Executed so far as the Bishop had to intermeddle in the matter For if no Induction does follow the Remedy lies not against the Bishop F.N.B. 47. h. But an Action upon the Case against the Archdeacon for the Induction is said to be a Temporal Act 1 Rolls 125 195. Neither can such Mandate be Revoked by the Bishop or be Inhibited by the King 1 Rolls 294. Again the Archbishop hath a concurrent Jurisdiction with the Bishops throughout his Province and may Admit and Institute until the Inferiour Bishoprick is full And the Statute of 23 H. 8. cap. 9. takes away the Jurisdiction of the Metropolitan only as to Proceedings in that Court In case the Inferiour Ordinary refuses to Admit the Archbishop may do it as appears Hob. 15. Hutton's Case and Mo. 879. It was said on the other side That this was but an Authority derived from the Bishop and therefore ceasing before it was Executed is determined The Bishop may direct his Mandate to another as well as the Archdeacon It was compared to a Letter of Attorney to make Livery which cannot be done after the Death of him that gave it Et Adjornatur Postea Anonymus IN an Information of Forgery the Defendant Challenged one of the Jury for that the Prosecutor had been late Entertained at his House This was admitted to the Favour tho' against the King Vid. for that in the 1 Cro. 663. And then the Counsel for the King challenged another and being pressed to alledge the Cause for 33 Ed. 1. does take away the General Challenge quia non sunt boni pro Rege But all the Court save Wild who seemed to be of another Opinion ordered the Panel to be first gone through and if there were enough the King is not to shew any Cause Vertue versus Bird. IN an Action upon the Case the Plaintiff declared that it was agreed between him and the Defendant That he should carry the Defendants Timber from a certain place to the Defendants House then and there to deliver at such place as the Defendant should appoint and that such a Day and Year he did carry with certain of his Carts to the place aforesaid the said Timber there ready to be delivered but that the Defendant delayed by the space of six Hours the Appointment of the place insomuch that his Horses being so Hot with Carrying of the Timber aforesaid and standing in aperto Acre they died soon after After Not Guilty pleaded and a Verdict for the Plaintiff Ventris moved in Arrest of Judgment that here did not appear any Cause of Action for it was the Plaintiffs Folly to let the Horses stand Neither was the Defendant under the Penalty of an Action bound to receive the Timber or appoint a place but in case of Refusal the other might recover what he Contracted for the Carriage having done all on his part but not to bring an Action for not appointing a Place And by the Opinion of all the Court the Judgment was stayed Vid. 2 Cro. 386. Roll. Rep. 275. Baily and Merritt Anonymus IT was moved for the setting aside of an Order of Sessions for the Setling a Poor person in a Town which had been sent thither by a Warrant of two Justices and it was Confirmed upon an Appeal to the Sessions But the Court would hear nothing of the Merits of the Cause the Order of the Sessions being in such case Final unless there were an Error in the Form Note A man gives a Warrant of Attorney to Confess a Judgment and dies before the Judgment is Confessed This is a Countermand Anonymus JUstices of the Peace at the Sessions Ordered the Father of him which had the Bastard Child to provide for it under the pretence of the reputed Grandfather for the Statute doth enable them to Tax the Grandfather of a Legitimate Child But in this Case the Court held there was no Colour and therefore quashed the
is very clear For tho' in M. Portington's Case in 10 Co. 't is said that the word Condition shall not in a Will be taken as a Limitation yet the Current of the Authorities since are otherwise But here the Court held the Condition void for a man cannot be restrained from an Attempt to Alien For non constat what shall be judged an Attempt and how can it be tryed And when the express words are so there shall not be made another sort of Condition than the Will imports And so the Judgment was affirmed Osborn versus Beversham DEbt for Rent incurred at two Half years As to one of them the Defendant pleaded non debet And as to the other Actio non because he says He was ready to pay it at the Day and Place and has been ever since profert in Cur ' the Rent ideo petit Judicium de damnis To which the Plaintiff Demurred For that he did not say quod obtulit for where the Time and Place of Payment is certain Semper paratus is no Plea without an Obtulit For the Defendant it was said That the Plaintiff ought to reply to a Demand 1 Inst 34. 'T is a good Plea for the Heir in Dower to save his Damages to say That he was always ready Rastal's Entries 159. Semper paratus is pleaded without an Obtulit So 1 Rolls 573. no mention made of a Tender But then another Fault was found that it was pleaded in Bar whereas it ought to have been only in Bar of Damages and not to the Action and this was agreed to be fatal But the Court held the Plea to be naught for the other Cause also Anonymus IN an Ejectment upon a Special Verdict the Case was A man Devised his Land to J. S. after the death of his Wife And after Argument the whole Court were of Opinion that J.S. not being Heir to the Devisor there should go no implied Estate to the Wife for an Heir shall not be defeated but by a necessary Implication Anonymus AN Action for Words for that the Defendant said of the Plaintiff He would have given Dean Money to have Robbed Golding's House and he did Rob the House After Verdict it was moved in Arrest of Judgment that the first part of the words import only an Inclination and not that he did give any Money And the words He did Rob the House shall be referred to Dean as the last antecedent and not the Plaintiff But the Court were of Opinion for the Plaintiff as was Adjudged where the words were He lay in wait to Rob. Vid. Cockain's Case in the 1 Cro. and in the 4 Co. And the Court said the Words might be construed That the Plaintiff offered Dean Money and he refusing it that the Plaintiff robbed the House himself Smith versus Tracy THe Case being moved again the Opinion of the whole Court was That the Half-Blood should come in for Distribution upon the new Act For as to the granting of Administration the being of Guardian c. the Half-Blood may be taken nearer of Kin than a more remote Kinsman of the Whole Blood Mo. 635 Ro. Rep. 114. Ante. J 's Case J. Brings his Habeas Corpus The Return was that he was Committed by J. S. J. N. T. K. to whom and others a Commission of Bankrupt was awarded for refusing to answer a Question put to him concerning the Bankrupt's Estate c. and so Commissus fuit in custodia by a Warrant to the Officer Virtute Commissionis praedictae haec est causa captionis seu detentionis c. The Counsel for the Prisoner took three Exceptions to the Return First For that there did not appear a sufficient Authority For the Commission is said to be granted to them and others and then they could not act without the rest for the Return does not express any Quorum c. in the Commission Secondly Instead of Commissus in custodia it ought to be Captus for that is the usual Form For this is as if the Commitment were by the Officer that makes the Return Thirdly Haec est causa captionis seu detentionis is uncertain for it ought to be detentionis And upon the first and last Exception the Prisoner was Discharged by the Court but at the same time was told by the Court That he must answer directly to such Questions as were put to him in order to the discovery of the Bankrupts Estate or else he was liable to be Committed Termino Sancti Hillarij Anno 29 30 Car. II. In Banco Regis Harrington's Case AN Information was preferred against him for that he maliciously and traiterously intending to stir up Sedition and to create a Disturbance between the King and his People upon Discourse of the late Rebellion and those Persons which were Executed at Charing-Cross for the Murder of the late King in praesentia audita quamplurium utteravit propalavit haec verba pernitiosa sequentia viz. Gubernatio nostra consistebat de tribus statibus si eveniret Rebellio in Regno nisi foret Rebellio contra omnes Status non est Rebellio Vpon Not Guilty pleaded he was found Guilty of speaking the precedent Words and Not guilty as to other Words contained in the Information It was moved in Arrest of Judment that Gubernatio signified the Exercise and Administration of the Government and not the State of it which Regimen doth Again That it was Consistebat and so might relate to the Britons or Saxons Time or to the late mutations of the Form of Government amongst us and that to put the words in Latin without an Anglicè was not to be allowed for the Translation might either aggravate or mitigate the Sense And that such a President might be prejudicial as well to the King as the Defendant But those Exceptions finding little weight with the Court his Counsel proceeded to justifie or at least to extenuate the Words alledging That the Relation was so great between the King and People that to raise a Rebellion against the King must also affect the other States and this whether the King be taken as some would have it as one of the Three Estates or as others that the Lords Spiritual and Temporal make two of the Estates and the Commons the third and the King as Chief and Head of all as is the Statute of 1 Eliz. cap. 3. where the Lords and Commons call themselves the Queens Obedient Subjects Representing the Three Estates of the Realm of England and so is the 4 Inst 1. But the Court supposing that the Words did tend to set on Foot that Position upon which the War Levied in 1641. by the Two Houses against the King was grounded were much displeased that the Counsel would pretend to defend them or put any tolerable Sense upon them It was also insisted upon by the King's Counsel and agreed by the Court that the Ancient Presidents and many latter also were to express the
meant by the name of Son As to Beckford's Case the Words are full to carry all and therefore it had been impertinent to have wrote over the Will again So where a man has two Sons named John it may be well averred that he meant the younger Son for nothing in the Will is inconsistent with such meaning The Court took time to deliver their Opinions And afterwards the Chief Justice delivered the Opinion of the Court That neither the Republication nor Parol Declaration could operate as a Devise to R. c. the Grandson Pepis's Case A Mandamus to restore him to his Place of Recorder of the Town of Cambridge The Return was That they were Incorporated by the Name of Mayor Aldermen c. with a Power to chuse a Recorder Habend ' pro termino vitae aut ad voluntat ' eligentium That Mr. Pepis was Chosen Recorder ad voluntat ' eligentium and that afterwards by the Votes of the greater number of the Electors he was removed and the Lord Allington constituted a Recorder under their Common Seal c. Vpon this Return it was moved for Mr. Pepis that altho' they had alledged a Power to Chuse a Recorder at Will yet they should have shewn Cause for his Removal being a Judicial Office which the Court takes notice of and that none had such a Power but the King to remove Judges ad libitum Again A Corporation aggregate cannot determine their Will but under their Common Seal and that is not shewn here Curia Where a Recorder is at Will they may remove him at pleasure as it is in Blagrave's Case and several other Cases As to the other Point it does not appear that he was Constituted under their Common Seal perhaps then they must have determined their Will under their Common Seal but now 't is well enough my Lord Allington is Constituted under their Common Seal which Act removes the other so it was adjudged against Mr. Pepis Termino Sancti Michaelis Anno 31 Car. II. In Banco Regis A Prohibition was prayed to the Court of Admiralty upon a Suggestion that the Suit was there upon a Contract made upon the Land The Case was thus A Bargain was made upon the Land with severl Seamen to bring up a Ship from a Port in England to London for a certain Sum to them to be paid And for the Prohibiton 't was alledged that this being upon the Land and a Contract with divers joyntly for a Sum in Gross it could not be within the ordinary Rule of Mariners Wages which is permitted to be Sued for in the Court of Admiralty in favour of the Mariners because they may all joyn in that Court and not be put to the inconvenience of Suing severally as they must at Law but as this Contract is they are to sue joyntly at Common Law But the Prohibition was denied for this must be taken as Mariners Wages And therefore tho' the Contract were upon the Land yet they have Jurisdiction Besides the Party comes after Sentence and therefore in the Courts discretion whether they will then grant a Prohibition Note A Rump Act was made to enable Mariners to Sue for Wages in the Admiralty but yet the Law was taken to be so before Vid. 3 Cro. Anonymus A Prohibition was prayed to the Ecclesiastical Court where the Libel was for these words You are a Whore and Ply in Moorfields And the Suggestion was that the words were spoken in London where an Action lies for such words and for that Cause a Prohibition was granted otherwise Suits might have been in the Court Christian for such words tho' not singly for the word Whore being a common word of brabling otherwise where joyned with words which shew the intent to Defame in that kind Anonymus AN Indebitat ' Assumpsit was brought for Goods sold and delivered The Action was laid in London and a Motion was made to change the Venue upon an Affidavit that the Sale was in Kent But on the other side it was said the delivery was in London and that were the Matter consists of two parts in several Counties the Plaintiff shall have his Election to which the Court agreed Anonymus A Man Covenants with his intended Wife to give her leave to dispose of so much by her Will and then they Intermarry the Husband having given Bond to a third person for the performance of these Covenants after the death of the Wife the Husband is Sued upon the Bond for not permitting her Will to be performed And upon Oyer of the Condition it was insisted on for the Defendant that these Covenants were discharged by the Marriage and so the Bond likewise loseth its force Vid. Hob. 216. Et Adjornatur Anonymus A Motion was made to quash an Inquisition of forcible Entry it was Inquisitio capta per Juratores super Sacramentum suum coram T. S. J. N. Justiciariis c. qui dicunt super Sacramentum praed ' And it was objected That qui dicunt c. referring to the last antecedent it was that the Justices say Sed non allocatur for super Sacramentum praedict ' makes it certain Note The Caption of an Indictment may be amended the same Term it comes into Court Anonymus AN Indictment for not taking upon him and executing the Office of a Constable to which he was chosen by the Leer The question was Whether a Tenant in antient Demesne were obliged to that Office And the Court held that he was Termino Sancti Hillarij Anno 31 32 Car. II. In Banco Regis Anonymus IN Ejectment upon a Special Verdict the case was thus A Lease was made A. and B. for their Lives Remainder to the first Son of A. c. Remainder to the Heirs of A. B. conveys his part to A. The question was Whether the Contingent Remainder to the first Son were destroyed Holt argued that it was For a Contingent Remainder must have some particular Estate of Freehold to support it and by the Release of B. his Estate was gone and there became an intire Fee in A. For by whotsoever means a Joynt tenant for Life conveys his Moiety to his Companion it does not enure by Grant of the Estate but by Release as Eustace and Scawens Case 2 Cro. 696. A. and B. Joynt tenants for Life A. Levy's a Fine to B. B. dies there shall be no Occupancy of the Moiety of A. during the Life of A. Jones 55. and the Case of Lewis Bowels 11 Co. is not to be objected where an Estate for Life was made to B. and F. the Remainder to their first Son that they should have in Tail Remainder to B. and F. in Tail here tho' an Estate in Tail is executed in B. and F. until a Son Born yet after upon the Birth of the Son the Contingent Remainder shall vest and split and divide the former Estate 2 Co. 60.61 but here the Fee becomes executed by several Conveyances but there the Estate
Tail was executed by the first Conveyance And in the Case at Bar until the Release of B. the Fee was not executed in B. for the preservation of the Joynture and so the Plight and Condition of the Estate altered by matter subsequent and by consequence the Contingent Remainder destroyed The Court doubted whether there were such alteration of the Estate as to destroy the Remainder for they said to some purposes the Fee was executed before the Release Vid. 1 Inst 184. a. for if the Joynt-tenants had joyned in a Lease for years an Action of Wast would he against the Lessee Et Adjornatur Anonymus A Person who was committed to the Tower for Conspiring the death of the King was brought up by Habeas Corpus and prayed to have Bail taken unless an Indictment were found against her this Term according to the new Act of 31 Car. 2. for Habeas Corpus's The Court said that they which would have the benefit of that Act must pray it before the first week of the Term expires but in regard it appeared that she had prayed it before by her Counsel and her Habeas Corpus was taken out in time the Court said the benefit of the Act should be saved to her for the prayer is not necessary to be made in person But Mr. C. G. was refused the advantage he having omitted to make the prayer during the first week either in Person or by Counsel Sir Robert Peytons's Case HE was brought up by Habeas Corpus from the Tower his Counsel pressed much to have the Return Filed supposing that he would be then a Prisoner to the Court and committed to the Marshalsey but the Court ordered the Return to be Filed and notwithstanding remanded him to the Tower as they said they might do The King versus Plume ANte Hill 29 30 Car. 2. The Case was spoken to again upon the Demurrer to the Indictment for using of the Trade of a Fruiterer contra 5 Eliz. not having been bound an Apprentice Scroggs Chief Justice and Dolben inclined to the Opinion that it was a Mystery within the Statute there being great Art in chusing the times to gather and preserve their Fruit. And that the Cause deserved the more Consideration for that the Fruiterers were an ancient Corporation in London viz. From the time of E. 4. also a Barber Upholster and lately a Coachmaker Ruled to be within the Act. Jones and Pemberton seemed to be of another Opinion for it would be very inconvenient to make every one that sells Fruit by the penny within the Act and majus minus would make no odds surely since the 5 of Eliz. there would have been some Prosecution by the Company of Fruiterers in this case if it would have lain Brewers and Bakers require Skill and yet not within the Act. But the Court took time to deliver their positive Opinions Et Adjornatur Reve versus Cropley AN Indebitat ' Assumpsit was brought for 20 l as Executor to William Burroughs for so much of the said Williams Money had and received by the Defendant in his Life time whereupon the Plaintiff had Iudgment by Nihil Dicit and upon a Writ of Inquiry the Plaintiff not being provided to prove the Debt supposing it to be confessed by the Judgment the Jury found but two pence Damages Ventris moved to set aside this Writ of Enquiry for that the Plaintiff was not obliged in this Action to prove the Debt at the executing of the Writ of Enquiry no more than if he had brought an Action of Debt 2 Cro. 220. In Trespass for taking of Goods the Property is not to be proved upon the Writ of Enquiry after Iudgment Sur Nihil Dicit for said the Court if he should fail thereof it would be in destruction of the first Judgment Vid. Yelv. 152 Curia This being in an Action upon the Case which lies in Damages the Debt ought to have been proved and so let it stand Note If a Verdict be for 30 l and the Iudgment is quod recuperet damna praedicta ad 32 l This surplus will do no hurt because 't is damna praedicta Jones 171. Cooke versus Fountain IN an Ejectment upon a Trial at the Bar the Title of the Lessor of the Plaintiff was upon the Grant of a Rent with power to enter for Non payment The Executor of the Grantor was produced as a Witness for the Defendant And it was objected against him that in the Grant of the Rent the Grantor covenanted for himself and his Heirs to pay it and that the Executor being obliged was no competent Witness Against which it was much insisted upon on the other side that this Covenant annexed to a real Estate would not bind the Executor but only the Heir But the whole Court were against it The Counsel for the Defendant mentioned a Bill of Exceptions and the Court doubted whether it would lie in the Kings Bench so they waved it and shewed that the Executor had fully Administred the Inventory But they gave a further charge on the Plaintiffs side and so that Witness was set aside Termino Sanctae Trinitatis Anno 32 Car. II. In Banco Regis Anonymus IN an Action upon the Case The Plaintiff declared that he kept a Stage-Coach and got his Livelyhood by carrying of Passengers And that the Defendant spoke such Scandalous words of his Wife that so reflected upon him and rendred him so ridiculous that no body would Ride in his Coach and he thereby lost his Customers After Verdict for the Plaintiff it was moved to stay Iudgment that here was no cause of Action But on the other side a Case was cited of one Bodingly 14 Car. 2. C. B. where the Plaintiff declared That he was an Innkeeper and that the Defendant had presented his Wife at a Leet for a Scold and that such and such Guests in particular had absented from his House upon it and after Verdict he had Judgment But the Court here said that the Cases differed for that quality of the Wives might make the House troublesome to the Guests but a Stage Coachman could receive no probable prejudice in his Trade by defaming of his Wife or at the least the Plaintiff should have declared what Customers he had lost in particular and therefore they ordered quod querens Nils capiat per Biliam Anger versus Brewer IN an Attachment upon a Prohibition the Plaintiff declared That he proceeded in the Court Christian after the Prohibition delivered After Judgment by Nihil dicit and 100 l Damages given to the Plaintiff it was moved to stay Judgment that there was no place laid in the Declaration where the Defendant prosecuted since the Prohibition delivered and so if Issue had been taken upon Non prosecut ' fuit post deliberat ' brevis whence should the Venue have come But it being made appear to the Court that in all the Presidents of these kind of Declarations there is no place found mentioned
in an Inferiour Court for want of infra Jurisdictionem Curiae 2 For variance between the Count and Plaint 6 But it lies not for some Omissions 5 A Writ of Error is a Supersedeas to an Execution 30. Yet the Judgment remains a Record 34 Exception 353 355 A Writ of Error returnable ad proximum Parliamentum not good Secus if to the day of Prorogation 31 266 No Writ of Error lies upon a Conviction before a Justice of Peace 33 In a Writ of Error if the Defendant dies the Writ is not abated Secus if the Plaintiff dies 34 Lies not to reverse a Judgment in a Qui tam nor upon the Statute de Scandalis Magnatis 49 What Records to be returned upon a Writ of Error 96 97 Where it lies upon a Judgment in a Scire facias and where not 168 Error in fact not assignable in the Exchequer Chamber 207 A Writ of Error that bears Teste before the Judgment good to remove the Record if Judgment be given before the Return 255 Escape See Baron and Feme VVhere a Prisoner Escapes by permission of the Sheriff he may be taken again by the Party Plaintiff 4 Debt against the Sheriff for a Voluntary Escape the Sheriff pleads that he took him again upon fresh Suit Good 211 217 Against the VVarden of the Fleet 269 The Lessor of the Custody of a Prison answerable for an Escape where his Lessee is insufficient 314 Escrow See Pleading Evidence See Statutes The party suffering admitted to give Evidence for the King to detect a Fraud 49 Exception See Feoffment Excommunication In Excommunication ipso facto no necessity of any Sentence of Excommunication 146 Excommunication pleaded to an Action per Literas testamentarias Good 222 How discharged where the Capias is not inroled according to the Statute 338 Execution Upon an Elegit the Sheriff ought to deliver Possession by Metes and Bounds or otherwise it may be quasht 259 Executor See Abatement Costs Return Of Infant Executors where to Sue by Guardian 40 54. VVhere by Attorney 40 102 103 If a Man names himself in an Action Executor or Administrator and it appears the Cause of Action was in his own right it shall be well enough and the calling himself Executor is but surplusage 119 VVhere the Executors promise in relation to the Testators Debt shall make the Debt his own 120 268 VVhere Interest is due for a Debt partly in the Testators life time and partly since and one Action brought and Judgment given for the whole this is manifestly Erroneous 199 VVhere chargeable in the Debet detinet and where in the detinet only 271 321 355 Cannot assume the Executorship for part and refuse for part 271 Debt doth not lie against the Executor of an Executor upon a Surmise of a Devastavit of the first Executor 292 Of the Executors renouncing 303 cannot refuse after Oath 335 Of Executor de son tort 349 VVhat Acts an Executor may do before Probat 370 Exposition of Words Obstrupabat 4 Or 62 148 Pair of Curtains and Vallence 71 106 Ad sequendum 74 Vt 73 74 Aliter vel alio modo 92 Mutuasset and mutuatus esset 109 Aromatarij 142 Centena 211 Issue 229 Land 260 Crates 304 Gubernatio Regimen 324 Exilium 326 Vestura terrae 393 Extinguishment Where two Closes are in the same Possession the Duty of Fencing is Extinguished and shall not Revive thô the Closes come after into several hands 97 F. False Latine DE sex bovibus instead of bobus no sufficient Cause to Arrest Judgment 17 Feoffment A Man makes a Feoffment of a Mannor excepting two Closes for the Life of the Feoffor only The two Closes descend to the Heir 106 Fine The Delivery of a Declaration in Ejectment upon the Lands is no Entry or Claim to avoid a Fine 42. So where an Action is brought and discontinued 45 A Fine cannot bar any Interest which was divested at the time of the Fine 56 Whether a Fine and Non-Claim bars the Interest of a Lessee in Trust 80 No Bar to a Mortgage 82 A Parish may contain many Vills and if a Fine may be levied of Lands in the Parish it carries whatsoever is in any of those Vills 170 Lessee for years makes a Feoffment and levies a Fine the Lessor shall have five years to Claim after the Term expired 241 Forcible Entry In an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with force because upon the finding a Restitution is to be awarded 23 Foreign Attachment See London Of Foreign Attachments by Custom how to be pleaded 236 G. Gaming See Statutes Guardian See Baron and Feme Executor Grant See Hundred GRant without Consideration hinders not the arising of a Contingent use 189 In Prescriptions or Usage time beyond Memory the Law presumes a Grant at first and the Grant lost 387. And therefore nothing can be prescribed for that cannot at this day be raised by Grant ibid. Of the Kings Grant 408 409 A Grant to a Town to be a County and no Grant of having a Sheriff void 407 H. Habeas Corpus See Statutes THo' the Return be Filed yet the Court may remand the Prisoner to the same Prison and not to the Marshalsey 330 346 Whether it lies to remove a Prisoner in Ireland 357 Half Blood The Sister of the Half Blood shall come in for distribution upon the Stat. 22 23 Car. 2. chap. 10. 316 317 323 Half Blood no Impediment to Administration 424 Harriot Where a Lease is made to commence on the Determination of another if the new Lessee dyes before his Term Commences whether a Harriot shall be due 91 Heir An implied Estate of Land shall not pass in a Will for an Heir shall not be defeated but upon a necessary Implication 323 376 A Man cannot by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser 372 379 Yet Heirs of the Body of his second Wife having a Son by the first is a good name of Purchase 381 Hospital Mastership of a Hospital not grantable in Reversion 151 Hundred A Hundred what it is and the Bayliff of a Hundred 403 The Grant of a Hundred good notwithstanding the Statutes 2 E. 3. 12. 14 E. 3. 9. 410 412. I. Imprisonment Where an Offence is Fineable if the Fine be tenderd there ought to be no Imprisonment 116 Indictment Where a Statute makes an Offence at Common Law more penal yet the Conclusion of the Indictment is not contra formam Statuti 13 A Man cannot be Indicted for saying of a Justice of Peace he understands not the Statutes of Excise but may be bound to Good Behoviour 10 16 Indictment of Forgery upon the Stat. 5 El. 4. where good and where not 23 24 Strictness of words not required in in an Order of Sessions thô it ought in an Indictment 37 For Manslaughter not quasht upon Motion 110.
So of Perjury and Nusance 370 Indictment before Justices of Peace for a Non feasance ought not to conclude contra pacem 108 111 For suffering an Escape 169 Quasht for Incertainty 305 306 No Copy of the Indictment allowed in capital Crimes yet the Mirror calls it abusion 354 For Perjury extrajudicial 370 Infant See Executor A Condition and Deed obliges Infants as much as others 200 205 Intent and Intendment See Uses Verdict Ioyntenant Two Joyntenants one Grants bargains and sells all his Estate and Interest the to other this amounts to a Release and must be so pleaded 78 A Devise to two equally to be divided between them and to the Survivors of them makes a Joyntenancy upon the import of the last Words 216 227 Issue A Lease is made to commence after the Death of J. S. without Issue J. S. hath Issue and dyes and then the Issue dyes without Issue the Lease commences For Issue being nomen collectivum when ever the Issue fails the Term commences 229 Iudgment Obtained by Forgery vacated 78 So if procured by Fraud and deceipt 49 Arrested where there appears no Cause of Action 310 Warrant to confess a Judgment the Party dyes before it be confest this is a Countermand 310 Irisdictition See Sewers Judgment in an Inferiour Court reverst for want of Jurisdiction 28 Every Subject has the Liberty of removing his Suit into a Superiour Court 46 If there be several Contracts at several times for several Sums each under 40 s and altogether amount to a Sum sufficient to entitle the Superiour Court they shall be there put in Suit and not in a Court that is not of Record 65 73 In Assumpsit brought in an Inferior Court the performance of the Promise must be as well within the Jurisdiction as the Promise it self 72 Inferiour Courts ought not to award a Capias but upon Summons first returned and tho' a fault in the Process is aided by appearance yet an Action of false Imprisonment lies 220 249 Where infra Jurisdictionem is necessary to be set forth and alledged 240 243 The Liberty of the Subject is infringed by bringing him within a private Jurisdiction when the matter arises out of it 333 Action on the Case for the same 369 Iury. Where a Juror may be withdrawn 28 In case of Life and Member if the Jury cannot agree before the Judges of Assizes depart they are to be carried after them in Carts 97 Twelve necessary on a Writ of Enquiry as well as in a Venire 113 Where the Iury's eating or drinking at the charge of either Party shall avoid their Verdict and what other Actions shall be sufficient Cause to avoid it 125 Whether the Statutes requiring Jurymen to have so much Freehold extend to Corporate Towns 366 K. King THE King in bringing an Action may choose his County or wave that which he had chosen before as he may wave his Demurrer and joyn Issue 17 King and Council may disfranchise any Member of a Corporation The Walls of N. were ordered to be pulled down by King and Council à fortiori an Alderman there may be displaced upon just Cause 20 The King may stay the Proceedings and the Attorney General Enter a noli prosequi after the Jury are returned 33 Lords Spiritual and Temporal and Commons the three Estates and the King Head of all 325 Knight See Abatement L. Lancaster OF the Dutchy Court of Lancaster and its Jurisdiction 155 infra Latitat A Man may take out a Latitat before the Money is due yet the Party must not be Arrested upon it before 28 Lease See Recovery No reason to favour Long Leases By the antient Law a Lease for about 40 years was void and they are never without suspicion of Fraud 58 A Lease made to begin from the End of a Lease misrecited shall commence presently 83 A Lease without any Date specified or an impossible Date as from the 40th of September shall commence presently 137 What Act determins a Lease at Will 247 Leet The Kings Court granted to Lords of Mannours as derived out of the Town 26 Presentments may be there for the King and the Lord of the Mannor ibid. Fines in Leets where they may bedistrained for and where not 105 Presentment at a Leet quasht where the Court appears to be held above a Month after Michaelmas 107 Difference between the Stewardship of a Leet and a Court Baron 153 Libel The having a Libel in ones Lodging and not delivering it to a Magistrate was only punishable in the Star-Chamber unless the Party Maliciously published it 31 Liberties Of Returna Brevium 405. Their Vexation and Inconveniency 412 Liberties belonging to Monasteries came to the King on their Dissolution and that without the Aid of the Statute 32 H. 8. chap. 20 407 Limitations Whether the Statute of Limitations extends to bar a Promise between Merchants relating to Trade 90 Livery Livery within view where good and where not 186 London By the Custom of London a Debtor may be Arrested before the Mony is due to make him find Sureties 29 What Debts shall be Attachable by Foreign Attachments according to the Custom of London 112 113 Custom to commit Offenders for obstinately and contemptuously refusing to obey the Order of the Court of Aldermen Good 115 Whether they may Imprison a Stranger for Marrying their Orphan without License 178 Their By-Law to restrain the number of Carts Good 21 196 Of their Duty of Scavage 298 Custom to Disfranchise and commit a Freeman for speaking opprobrious Words of an Alderman Not good 327 Of their Duty of Water Baylage 351 M. Mandamus TO restore an Alderman 19 Lies not to restore a Town Clark where the Corporation have power to Grant the Office Durante beneplacito 77 82. So of a Recorder 342 Lies to admit a Deputy into an Office where the Office may be executed by Deputy 111 To swear a Churchwarden 115 267 To restore a Sexton 143 153 Lies for an Office but not for a Service ibid. Lies to an Inferiour Court to cause them to give Judgment according to a Statute 188 To restore a Common Council Man in a Corporation 302 To restore an Attorney in an Inferiour Court 331 To the Ecclesiastical Court to prove a Will 335 Misnomer When and how amendable 13 Name mistaken in the Issue if right before in the Record amendable 25 Monasteries See Liberties Pensions out of Monastery Lands where to be sued for 120 N. Naturalization OF Naturalization and Denization their General Effects and Operation 418 419 Notice Whether necessary upon a Counter bond to save harmless 36 37 Upon an Award 93 In what Cases necessary and where not 200 201 Nusance See Action Whether the erecting of a Glass-house be a Nusance 26 A Rope-Dancers Booth in the Street a Nusance and a Writ to the Sheriff awarded to prostrate the Bulding 169 O. Oath OF the Marshal of the King's Bench 65 No exception to the Oath of Allegiance that the words of
Rogers v. Bradly 143 Rozer v. Rozer 36 Rudyard 's Thomas Case 22 S SAlisbury 's the Lord Case 365 Samon v. Jones 318 Sarsfield v. Witherly 292 Sayle v. Freeland al' Infants 350 Sherborn v. Colebach 175 Shipley v. Craister 131 Smithson 's Sir Jerom Case 345 Snode v. Ward 197 T TArget v. Loyd 272 277 Thompson v. Leach 198 Tovey v. Pitcher 228 234 Tregonwell Jane Vid. Executrix of John Tregonwell v. Sherwin 262 Trethewy v. Ellesdon 141 Trippet v. Eyres 110 113 Tonstal v. Brend 174 Turner Methuselah v. Sir Samuel Sterling 25 Turner 's Case 348 W WAlden Sir Lionel v. Mitchel 263 265 Warren v. Sainthil 185 186 Watmough v. Holgate al' 219 221 Web Prescilla v. Moore 279 282 Welbie v. Phillips 129 West v. The Lord Delaware 357 Westby 's Case 152 Whitaker v. Thoroughgood 130 White v. Ewer 340 Whitmore Frances Vid. v. Weld al' 367 Williams v. Bond 238 Willows v. Lydcot 285 Woodward al' v. Fox 187 213 267 Wright v. Wyvell 56 A TABLE OF THE PLEADINGS IN THE SECOND PART A Actions upon the Case 1. IN a Special Indebitatus Assumpsit against an Attorney The Plaintiff declares That whereas T. S. was Indebted to the Plaintiff in a certain Sum of Money exceeding 12 l and the Defendant was indebted to the said T. S. in 12 l aut eo circiter The Defendant promised That if the Plaintiff would procure an Order under the Hand of the said T. S. for payment of the Money which he owed the said T. S. or any part thereof that then he would pay the same and avers that he procured such Order and shewed it to the Defendant and requested payment which he refused p. 69 After Imparlance the Defendant demurs to the Declaration 70 The Plaintiff joyns in the Demurrer 71 2 Against a Common Carryer for losing Goods delivered him to Carry 75 The Plaintiff declares that the Defendant is a Common Carryer and sets forth the Custom of England and the particulars of the Goods delivered to him to be Carried from B. to London and that he paid him for the Carriage and the Defendant lost them 75 76 Issue thereupon 77 3. Against a Sheriff for Returning Nulla Bona upon a Special Outlawry when the Party had Goods 84 The Declaration sets forth the Special Matter 85 86 Defendant pleads That a Prerogative Writ came out of the Exchequer whereupon the Defendant seized the Gâ—ods Nulla alia â—ona 87 The Plaâ—â—tiff demurs 88 4. For not Folding his Sheep upon the Plaintiffs Land according to Custom 136 The Declaration sets forth the special Custom and Cause of Action Issue thereupon 137 5. For Stopping up a Foot-way 185 The Plaintiff Declares That he was possest of and did inhabit in an ancient Messâ—age and that he had and ought to have a Foot-way for himself and his Servants over such a Close c. as belonging to his said Messuage and that the Defendant to disturb him in his way dug Ditches and Trenches cross the Way and erected Hedges and Fences cross it whereby he was hindred and deprived of his Way 186 6. Indebitatus Assumpsit upon several Promises For Moneys had and received for the Plaintiffs use For Money laid out for the Defendant For Money borrowed of the Plaintiff 254 For Money due to the Plaintiff for the Arrearages of an Account The Defendant hath not paid the said several Sums tho' requested c. As to the first and second Promises the Defendant pleads Non assumpsit infra sex annos as to the third and fourth Promises he pleads Non assumpsit 255 As to the first and second Promises the Plaintiff Replies and sets forth an Original sâ—ed forth iâ— a Clausum â—â—egit within the six years ea â—ntâ—ntione to â—eclare against him and that he promised within six years next before the Suing out of that Original The Defendant craves Oyer of the Original and hath it and says that the Writ will not warrant the Declaration 256 And prays Judgment whether the Plaintiff shall be admitted to set forth that Writ ad Warrantizandum Narracon ' suam The Plaintiff demurs to the â—ejoynder The Defendant joyns in Demurrer 258 7. For Words viz. Papist and Pensioner 263 The Plaintiff declares that he is a Protestant and never profest the Romish Religion that he hath been a Member of Parliâ—â—ent and did his Duty therein sets forth the Colloquium of the Plaintiff and of his being a Member of Parliament the first Words ex ulteriori malitia other Words 264 The Defendant pleads Not guilty 265 8. In Assumpsit the Plaintiff declares for a Runlet of Wine Another Indebitatus as well for Meat Drink Brandy and Tobacco as for Horse-Meat A Quantum meruit for Meat Drink Wine Brandy and Horse-Meat found and provided by the Plaintiff as an Innkeeper 279 Another Indebitatus for Goods sold An Insimul computasset the Plaintiff says that the Defendant hath not paid the several Sums inde producit sectam 280 The Defendant pleads an Outlawry in Bar and shews that J. S. impleaded the Plaintiff in the Common Pleas in an Action of Trespass and for not appearing she was waived and that the Outlawry is yet in force hoc paratus est verificare per Recordum Demurrer to the Plea Joynder in Demurrer 281 Assault Battery and Wounding Vide Trespass 2. Assignees Action by and against them Vid. Covenant 4. 5. Assumpsit Vid. Actions on the Case 1. 6. 8. Award vid. Debt 2. 4. 6. B Bankrupcy vid. Trover 1. 2. Bill of Exchange vid. Error 2. By Law vid. Debt 7. C Carryer Action against him Vid. Action on the Case 2. Clausum fregit Vid. Action on the Case 6. Covenant 1. BRought by the Executor of a Bishop against the Executors of an Assignee of the Executor of the Lessee 51 The Declaration sets forth the Indenture of Demise of a Rectory c. with the Consideration and Particulars demised The Covenants to repair and yield up The Lessees Entry c. 51 52 53 And assigns the Breach in permitting the Chancel c. to be out of Repair Profert in Cur ' the Lease 51 And Letters Testamentary of the Bishop 55 Defendants Demur generally 55 2. Against an Attorney upon Articles of Agreement for quiet enjoyment of Lands 59 The Declaration sets forth That the Defendant Covenanted pro ex parte of another Recites the Articles avers performance of all Covenants on the Plaintiffs part and assigns the Breach That the Plaintiff and his Servants were sued in an Action of Trespass in the Common Pleas and Damages recovered against him which he was compelled to pay sic idem the Plaintiff non quiete pacifice tenuit 60 The Defendant pleads non infregit Conventionem and Issue thereupon 61 3. By Executors upon certain special Covenants with their Testator for a Demise of Land which they set forth 97 They aver performance by the Testator in his life time and since his death by the
Plaintiffs and assign a Breach on the Defendants part Defendant pleads quod Testator nihil habuit in Tenementis The Plaintiffs demur to the Plea 98 4. By an Assignee of an Assignee against an Executor 117 The Declaration sets forth the Demise and that the Defendants Testator Covenanted to pull down three old Houses and build three new ones in their room and to keep the same in good repair and so deliver them up at the end of his Term 119 Sets forth the Plaintiffs Title to the Reversion by Assignment from the Lessor 119 120 And that the Tenant for years Attorned 121 That the Tenant in possession died and left the Defendant his Executor c. The the Plaintiff hath performed all and singular the Covenants on the part of the Lessor and his Assigns Protestando that the Defendant hath not performed those on the part of his Testator 122 He assigns a Breach in facto for permitting once of the new erected Houses to fall down before the end of the Term and other defaults in not Repairing Et sic the Defendant Convenconem non tenuit 123 The Defendant pleads performance specially to each Breach assigned and says that his Testator pull'd down the three Houses and built other three Houses in their room which he kept in Repairs and so delivered at the end of his Term 124 The Plaintiff demurs to the Plea as not being sufficient as to the leaving one House totally prostrate and ruined as the Plaintiff declared The Defendant joyned in Demurrer 125 5. Against the Assignee of an Executrix 228 The Declaration sets forth That the Plaintiff was possest of a Term for years yet in being by Indenture demised to the Testator for 21 years at the yearly Rent of c. 229 With a Clause of Re-entry and Covenants 230 That the Lessee entred made his Will made the Assignor his Exetrix and died That she proved the Will entred and assigned to the Defendant who entred and is still possest The Breach assigned was in the Non payment of Rent 231 The Defendant pleads That he assigned over before any Rent due 232 Demurrer to part of the Plea Joynder in Demurrer Judgment for the other part 233 Cesset executio Brevis de Inquirendo de dampnis quousque the Demurrer be determined 234 6. In Covenant the Plaintiff declares upon an Indenture of Demise from the Defendant 272 Profert in Curia The Demise Habendum Reddendum The Covenants on the Plaintiffs part 273 Covenants on the Defendants part for himself and Assigns to permit to make a Drain The Plaintiff entred and was possest and avers performance of all Covenants on his part The Breach assigned Eo quod the Defendant being possest of certain Tenements adjoyning for a Term of years did demise part of the Term to J. S. who entred 274 And died possest And Administration granted to his Widow who entred and was possest and took Husband The Husband and Wife entred and were possest and refuse to suffer the Defendant to make the Drain Et sic inde producit sectam 275 The Defendant pleads That he permitted the Plaintiff to make a Drain according to Covenant but the Plaintiff refused it The Plaintiff demurs The Defendant joyns in Demurrer 276 D Debt 1. IN Debt upon a Bond the Defendant craves Oyer of the Condition and pleads the Statute of Vsury 80 He sets forth the Usurious Contract the Money lent and the Bond in question given for it and that the Money for Forbearance exceeds the rate of 6 l per Cent. 81 The Plaintiff Replies That the Bond was made by a Scrivener in his absence who mistook the Condition and Traverses the Corrupt Agreement The Defendant demurs to the Replication The Plaintiff joyns 82 2. Debt upon a Bond to perform an Award 110 The Defendant craves Oyer of the Condition and pleads that the Arbitrators made no Award but that they named an Umpire who made no Award by Writing or Word of Mouth 111 The Plaintiff replies That true it is that the Arbitrators nor the Umpire by them first Chosen made any Award but refused whereupon the Arbitrators chose another Umpire who mad an Award within the time limitted 112 The Defendant demurs specially and assigns for Cause That it does not appear by the Replication that the Defendant had Notice that the Arbitrators had named the second Umpire or that he had any Authority to make any Umpirage The Plaintiff joyns in Demurrer 113 3. For Rent against an Executrix upon a Lease parol 176 The Declaration sets forth the Demise to the Defendants Testator of the 4th part of two Corn Mills and of one Mault-Mill under the same Roof to hold for one year sic de Anno in annum as long as both parties shall please paying Monthly for the same the Sum of 60 s 4 d ob so long as the said Testator should hold the Premisses and shews that he entred and held it for so long and that the Rent is due and unpaid for so many Months per quod actio accrevit 176 He also sets forth another Demise from year to year so long as both parties shall please at the yearly Rent of 20 l to be paid Quarterly by equal Portions the Tenants Entry the Rent arrear per quod actio accrevit Another Demise at Will laid Entry Rent arrear Actio accrevit 177 Another Demise at Will laid of the 4th part of another Mill Entry Rent arrear Actio accrevit the The Testator in his Life time nor the Executrix post mortem have not paid 178 The Defendant pleads in Abatement That the Tenant died Intestate and that Administration was granted to her and therefore ought to be sued as Administratrix and not as Executrix 178 The Plaintiff replies That the Defendant administred as Executrix before the granting the Administration to her The Defendant demurs to the Replication The Plaintiff joyns 179 4. Debt upon Bond. The Defendant craves Oyer of the Condition which is to perform an Award 219 Pleads That the Arbitrators made no Award The Plaintiff replies and sets forth the Award made in Writing and assigns a Breach in not paying a certain Sum of Money awarded 220 The Defendant demurs The Plaintiff joyns 221 5. Debt upon a Sheriffs Bond 234 The Defendant prays Oyer of the Condition which was to appear in Chancery to answer a Contempt Pleads the Statute of 23 H. 6. That an Attachment issued out of Chancery delivered to the Plaintiff being Sheriff who caused the Defendant to be arrested and after took the said Bond for his Appearance 236 Contra formam Statuti praedicti sic scriptum Obligatorium illud c. vacuum in lege existit The Plaintiff demurs to the Plea The Defendant joyns 237 6. Debt upon Bond Condition'd to perform an Award 239 The Defendant pleads that the Arbitrators made no award The Plaintiff replies and sets forth an Award made ore tenus 240 Notice of the Award and request for the Performance of it
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
the committing of Treason is the Forfeiture There is a difference between an Heir taking advantage of a Forfeiture in the time of the Ancestor and an Alienee in the time of the former Lord Vid. Owen 63. But then Iustice Charleton declared his Opinion that the Copyhold was given to the King by the of Statute of 12 Car. For the generality of the words other things of that Nature whatsoever and that enforced by the Proviso where mesn Conveyances Surrenders by Copy were mentioned But the other Iustices seemed to be of another Opinion for that Copyholds were never included in a Statute where any prejudice would thereby accrue to the Lord unless expresly named and for the Proviso it might be satisfied by the Copyholds which the Traitors might hold of the Kings Mannors or where they had a Mannor held of the King and had made voluntary Grants of Copyholds and Surrenders made subsequent And so 't was said to be the Opinion of my Lord Hales 16 Car. 2. when he was Chief Baron of the Exchequer But however they were ordered to attend the Kings Attorney General to know whether he desired to be heard to that point Et adjornatur Anonymus UPon a Trial at Bar upon a Quare Impedit the Case was Parceners had made partition to present by turn and an Vsurpation is in the turn of one of them whether this put all the rest out of possession or the Sister which had the next turn should present when the Church became void The Court inclined to an Opinion that it should put all out of possession and would not permit a Special Verdict upon the motion of Serjeant Maynard but a case was made of it for the consideration of the Iudges Vid. Kielway and F. N. B. 35. Anonymus IN na Ejectment Vpon a Special Verdict an Vsurpation had been made to a Church and a Quare impedit brought to remove the Incumbent and pending the Quare impedit the perpetual Advowson was sold by the Plaintiff and it was found ea intentione that J. S. Clerk should be presented after the Vsurper Incumbent removed and accordingly after such removal J. S. was Presented Admitted Instituted and Inducted And after Argument the Court gave Iudgment for the Plaintiff whose Lessor supposing the Presentation c. void by the Statute against Simony had procured a Presentation from the King and Admission Institution and Induction thereupon and the Court held it to be plain Simony Termino Sancti Michaelis Anno 2 Jac. II. In Communi Banco Bathursts Case AN Action was brought against him as Executor of an Executor of an Executor against whom the Plaintiff had recovered a Iudgment in Debt and it was suggested that he had wasted the Estate of the first Testator and so by the Statute 30 Car. 2. his Executor was liable in such Manner as his Testator would have been if he had been living Vpon Plene Administravit pleaded the matter was found specially and that the Executor which wasted was indebted to the Defendant whom he made Executor upon a simple Contract And the Question was whether the Defendant might retain for his Debt against the Debt grounded upon the Devastavit And the Court held that he might for it shall not be adjudged a Debt superior to a simple Contract Termino Paschae Anno 22 Car. II. In Communi Banco Grove and Dr. Elliot Chancellor of Sarum A Motion had been made for a Prohibition upon a Suggestion that per legem terrae no man ought to be Iudge in his own Cause c. nor ought any man to be compelled to answer Articles prosecuted against him ex mero Officio c. And that contrary hereto the Defendant had articled against the Plaintiff that he did out of his own private Will and Spirit and contrary to the Laws keep Conventicles and did allow and permit one South and others pretended Ministers and not allowed by the Church to Expound and Preach to himself and many others c. and this was ex promotione A. B. Notarij Publici c. It was not alledged in this Libel or Articles that there was any Presentment of this Matter but the Register of the Court swore that there was a Presentment made by the Curate of the Parish where c. and that a certain Copy which he delivered here into Court was a true Copy thereof Ellis Serjeant for the Plaintiff First Conventicles are properly punishable at the Common Law and not by the Ecclesiastical Law they are inquirable upon every Commission of Oyer and Terminer 4 Inst 162. and the late Act against Conventicles was in force at this time Secondly No man ought to be proceeded against in the Spiritual Court without a due presentment 25 H. 8. c. 14. declares that 't is not reasonable that any Ordinary by any suspition conceived of his own fancy without due accusation or presentment should put any Subject of this Realm into the infamy or slander of Heresie And the reason of this extends to other things as well as Heresie Indeed this Statute is repealed but as my Lord Coke 12 Rep. 26. observes it was herein declaratory of the Common Law and 't is great reason that there should be a presentment and accusation by some proper Person for otherwise an innocent Person in case of false accusation would not known where to have his remedy Object Here is a Presentment by the Curate and by the 113 of the Canons made 3 Jacobi a Curate in the absence of the Rector may present Answ First These Canons were never confirmed by Act of Parliament and without that there cannot be any Canons made to alter the Law 12 Co. 72 73. at least they can bind none but the Clergy Vid. Mo. 755. and one reason thereof is because the Laity have no Representatives in the Convocation Secondly This Canon says only that a Curate may present in the absence of the Rector it doth not appear here that the Rector was absent Thirdly All such Presentments ought to be upon Oath and this is not proved so to be The Courts in this Hall cannot proceed upon any such thing without Oath Fourthly It is not alledged in the Libel or Articles that there was any Presentment at all only the Register comes in and saith he finds such a Presentment among the Acts of the Court so that Issue cannot be taken whether any or no So it must be taken his proceeding was ex Officio mero without Presentment and 't is as great a mischief as was by reason of common Informers before the 18 Eliz. c. 5. appointed their names to be endorsed upon all Process sued out by them Thirdly In this Case they will examine upon Oath Now no Layman ought to answer upon Oath except in Cases matrimonial and Testamentary 12 Co. 26 27. 3 Cro. 262. Baldwyn contra First That Conventicles are punishable at the Common Law or were by the late Statute does not disprove or take away the Iurisdiction of the Spiritual
ad eam aliqualit ' respond sed verificationem ill admittere omnino recusat pet judicium dampna sua occasione praemisso sibi adjudicari c. Et quia Justic hic se advisare volunt de super praemissis praedictis priusquam Judicium inde reddant dies dat est partibus praedictis hicusque in crastino Sanctae Trinitatis de audiend inde judicio suo eo qd iidem Justic hic inde nondum c. Blesse versus Frost IN a Trover and Conversion brought by the Plaintiff as Assignee of Commissioners of Bankrupts amongst other things he declared that he was possessed de uno Vase Anglicè Vessel Vini Hispanici and it was objected upon a Demurrer to the Declaration that it was not said what the Vessel was made of and so no measure for the Damages sed non allocatur for it is intended to be made of Wood and is used for Casks of Wine Bynton versus Bobbett IN an Action of Covenant brought in this manner viz. by Henry Baynton and the Lady Anne his Wife the Lady Elizabeth Wilmot and the Lady Mallet Wilmot against Robert Bobbet The Plaintiffs declared that whilst the Lady Anne was sole by a certain Writing bearing Date the 20th day of March in the year of our Lord 1684. sealed by the said Robert and produced in Court it was agreed with the said Robert for and on the behalf of the said Ann Elizabeth and Mallett Daughters and Coheirs of the Right Honourable John late Earl of Rochester for the passages of all Boats and other advantages of Navigation upon the River made navigable by John Mallett Esq deceased Grandfather of the Right Honourable Elizabeth late Countess of Rochester from the Bridge of Bridgwater to a certain place upon the River aforesaid called Ham Mills the benefit of which River aforesaid was granted to the said Ann Elizabeth and Mallett by the Leters Patents of the Late King bearing date by the last year of his Reign with power to chain up a Bridge made by the said John Mallett near the place in the said River called Knapps Bridge or any other place of the River aforesaid granted to the said Ladies as foresaid with power also to sue or implead in the name of the said Ladys any Person passing with Boats upon the said River without the licence of the said Robert first had and obtained he taking for every Boat that should pass below the said Knapp Bridge one shilling To have and to hold the benefit of the Passage aforesaid to him his Executors and Assigns from the 25th of March next after the date of the said Writing for three years yielding and paying for the same yearly during the Term to the said Ann Elizabeth and Mallett Wilmot the Rent of 45 l at Michaelmas and our Lady Day by equal portions The Plaintiffs further say That altho' he the said Robert had occupied and enjoyed the Passage and Premisses aforesaid the said Robert did not pay to the said Ann Elizabeth and Mallett whilest the said Ann was sole nor to the said Henry Ann Elizabeth and Mallett after the Marriage of the said Ann or to any of them the said Rent of 45 l or any part thereof and so the said Robert did not perform his Covenant but broke the same ad dampnum c. The Defendant pleaded protestando That there was no such Grant made by the King and protestando that the said River was not made Navigable by the said John Mallett Pro placito That the said River from the said place called Bridgewater-Bridge to the said place called Ham Mills supposed and pretended to have been made Navigable as aforesaid is and for time out of mind hath been an ancient and Navigable River free and common for all the Kings Subjects to pass with Boats And further saith That the aforesaid Ann Elizabeth and Mallett Wilmott at the time of the making of the said Writing or at any other time had nothing of passage of Toll in the River aforesaid whereof they could make any Demise or Grant to the said Robert per quod the said Robert could not have take or receive the advantage and profit aforesaid according to the purport of the said Writing but was wholly deprived thereof during all the time aforesaid hoc paratus est verficare and so demands Iudgment Si Actio To this the Plaintiffs demurred for that the Plea was double and that no Traverse was to the enjoyment which were the Causes specially assigned for Demurrer Pollexfen Chief Justice Powell and Rokeby held the Plea to be double Ventris contra For it is all but one matter for if the River were free for all the Kings Subjects to pass then the Plaintiffs could have no Toll or make any obstruction thereupon so that one matter depended upon the other and in such case a Plea shall not be said to be double Calf and Nevill Poph. 186. In a Scire facias against the Bail the Defendant pleaded That the Principal tendred himself to Prison before the Scire facias and died in Prison either of these matters would have served and yet the Plea not held double But all the Court resolved that the Plea was insufficient to bar the Plaintiffs First Because it was set forth in the Declaration that the Defendant had enjoyed the Passage and Profit granted and then the Rent must be paid so long if an eviction be pleaded in bar to Rent it must be Rent grown due after the eviction 20 H. 6. 22. if a Disseissor lets rendring Rent and the Disseisee enters after the Rent-day yet an Action of Debt lies for the Rent accrued before therefore the Defendant should have traversed the enjoyment Again This is not a Rent for 't is reserved out of a thing Incorporeal and an express Covenant to pay it The Mayor and Commonalty of London against Hatton Sty 357. upon a Lease of the Garblers Office and Covenant was brought for the Rent and pleaded that it could not be let but it does not appear by the Book that Iudgment was given Vid. Newton Weeks Allens Rep. 79. One reciting that he was seised of such Land granted a Rent out of it and covenanted to pay the Rent he could not plead to his Covenant that he had nothing in the Land Iudgment pro Quer ' Bockenham versus Thacker ALIAS prout patet Termino Paschae ult ' praeterit ' A Special Indebitatus Assumpsit against an Attorney Rotulo Sexcentesimo octagesimo continetur sic Memorandum quod Vicesimo octavo die Maij isto eod ' Termino venit hic in Cur ' Hugo Bockenham per Robert ' Snell Attorn ' suum exhibuit Justic ' Domini Regis hic quandam billam suam versus Pet ' Thacker sen ' un ' Attorn ' Cur ' Domini Regis de Banco hic praefentem hic in Cur ' in propria persona sua de placito Transgr ' super Casum cujus quidem Billae tenor sequitur in haec
were Six years Arrear of a certain Salary belonging to the said Office according to the Agreement aforesaid due and payable to the Plaintiff which he the Plaintiff had not received and the Defendant had not paid unto him licet saepius requisitus and so the Defendant had broke his Covenant The Defendant pleaded in Bar That he had from the time of the Agreement aforesaid to the time of the Writ brought permitted the Plaintiff to receive yearly the Profits of the said Office according to the said Agreement absque hoc that the Defendant had or received any part of the Profits of the said Office To this the Plaintiff Demurred and shewed for the Cause of Demurrer that the Defendant had traversed Matter not alledged And upon the first Argument Judgment was given for the Plaintiff by the whole Court that the Traverse was not good And the Court held that upon this Agreement the Defendant was not bound to pay the Money grown due for the Profits of the Office to the Plaintiff but was only restrained from intermedling with them and to leave them to be received by the Plaintiff Bush versus Buckingham Bedf. ss Debt upon a Bond. THOMAS Buckingam nuper de Shenly in Com' Bucks Yeoman alias dict' Thomam Buckingham de Houghton Reg ' in Com' Bedford ' Yeoman sum ' fuit ad respondend ' Mariae Bush Vid ' de placito qd ' reddat ei centum libras quas ei debet injuste detinet c. Et unde eadem Maria per Robertum Jenkin Attorn ' suum dic ' qd ' cum praedictus Tho' undecimo die Maii Anno Dom ' milliesimo sexcentesimo octogesimo sexto apud Luton ' per quoddam scriptum suum obligatorium concessisset se teneri praefat ' Mariae in praedictis centum libris solvend ' eidem Mariae cum inde requisit fuisset praedictus tamen Thomas licet sepius requisit ' praedictam centum libras eidem Mariae nondum reddidit Set ill ' ei hucufque reddere contradixit adhuc contradic ' unde dic ' qd ' deteriorat ' est dampnum habet ad valenc ' viginti librarum Et inde produc ' Sectam Profert in Curia scriptum c. Et profert hic in Cur ' scriptum praedictum qd ' debitum praedictum in forma praed ' testatur cujus dat' est die anno supradict c. Defendant craves Oyer of the Condition Et praedictus Thomas per Humfrid ' Taylor Attorn suum ven ' defend ' vim injur ' quando c. Et pet ' audit ' scripti praedicti ei legitur c. pet ' eciam audit ' conditionis ejusdem scripti ei legitur in hec verba The Condition of this Obligation is such that if the above bound Thomas Buckingham and William Holk or either of them they or either of their Heirs Executors Administrators or Assigns or any of them do or shall well and truly pay or cause to be paid unto the abovenamed Mary Bush her Executors Administrators or Assigns or any of them the full and just sum of fifty two pounds and ten shillings of good and lawful Many of England in or upon the twelfth day of November next ensuing the date hereof without fraud or further delay That then this present Obligation to be void and no effect or else to remain in full force and vertue And pleads the Statute of Usury Quibus lectis audit ' idem Thomas dic ' qd ' ipse de debito praedict virtute scripti praedicti onerari non debet quia dic ' qd ' per quendam Actum in Parliament ' Dom ' Caroli Secundi nuper Reg ' Angliae inchoat ' tent ' apud Westm ' in Com' Midd ' vicesimo quinto die Aprilis Anno Regni sui duodecimo edit ' provis inter alia inactitat ' fuit Authoritat ' ejusdem Parliament ' qd ' nulla persona sive personae quaecunque ab post vicesimum nonum diem Septembris Anno Dom ' millesimo sexcentesimo sexagesimo super aliquem contractum ab post praedictum vicesimum nonum diem Septembris caperet seu caperent direct ' vel indirect ' pro accommodatione Anglicè leave aliquorum denar ' mercimoniorum merchandizarum vel al commoditat ' quorumcunque ultra valor ' sex librarum pro differend ' Anglicè forbearance centum librarum pro Anno sic secundumistam ratam pro majori vel minori summa vel pro longiori seu breviori tempore Et qd ' omnes obligationes Anglicè Bonds contract ' assuranc ' quecunque post tempus praedict ' fact ' pro solutione alicujus principal ' summae pecun ' accommodand ' vel convent ' performari super vel pro aliqua usuria Anglicè Vsury super quas vel per quas reservat ' vel capt ' foret ultra ratam sex librarum in centum libris ut praefertur penitus vacuae forent prout per eundem Actum in t ' al' The Usurious Contract plenius liquet praedictus Thomas dic ' qd ' post praedict ' vicesimum nonum diem Septembris in Actu praed ' superius mentionat ' ante confection ' scripti obligat ' praedict ' scilicet praed ' undecimo die Maii An' Dom ' milesimo sexcentesimo octogesimo sexto supradict ' apud Luton praed ' in t ' praefat ' Mariam ipsum Tho' corrupt ' contra form ' Statut ' predict ' agreat ' concordat ' fuit qd ' praed ' Maria accommodaret eidem Thomae quinquagint ' libras eidem Mariae praedict ' duodecimo die Novembris in Conditione praed ' spec ' resolvend ' qd'que praedict ' Thomas pro lucro interesse differendo dando diem solutionis praedict ' quinquaginta librarum per tempus illud solveret praefat ' Mariae summam duarum librarum decem solidorum Qd'que pro securitat ' solutionis tam praedictarum quinquata librarum de principal ' debito praed ' quam praedict ' duarum librarum decem solidorum ipse idem Thomas per ' scriptum suum obligatorium debit ' legis forma conficiend ' deveniret tent ' obligat ' The Bond to be given thereupon praefat ' Mariae in centum libris cum conditione eidem subscript ' pro solutione quinquaginta duarum librarum decem solidorum super praedict ' duodecimum diem Novemb ' tunc prox ' sequen ' idem Thomas ulterius dic ' qd ' in performatione corrupt ' concordiae praedict ' in t ' ipsam Mariam praefat ' Thomam in forma praed ' habit ' fact ' praedict ' Mariae postea scilicet praedict ' undecimo die Maii Anno Dom ' The Mony lent millesimo sexcentesimo octogesimo sexto supradicto apud Luton ' praedict ' accommodavit eidem Thomae quinquaginta libras resolvend ' eidem Mariae praedicto
the Scrivener and that the Agreement of the parties was for no more than just Interest and this was held a good Averment to save the Bond from being void by the Statute of Usury And a Case between Lewknor and Mountague was cited where the Condition of a Bond was If William Mountague shall do c. whereas there was William Mountague the Father and William Mountague the Son and by the Averment of the meaning of the parties this was expounded of the Son But the whole Court were here of Opinion that the Averment in the Case at Bar was not to be admitted for it would carry the Condition to another sense then the words import As to the Case upon the Statute of Usury there it depends upon the Agreement and the party may shew any to make appear there was no Corrupt Agreement Vid ante hoc Termino the Case of Bush and Buckingham And as to Lewknor's Case the Averment was but to ascertain which William Mountague was meant and stands well with the words of the Condition But whether as the Condition is penned for the payment to be during the Life of Peter Becket and the Minority of Mary that the payment should determine upon the death of Peter the Court did not deliver their Opinion according to the Opinion in Brudnell's Case in 5 Co. 9. it would seem that it should But the Case of Cross and Tooker in Latch 162. seems strong to the contrary Vid. that Case in Popham 201. and in 1 Anderson 151. absque impetitione vasti during their Lives held that the Priviledge shall continue to the Survivor But the whole Court held the pleading of the tender insufficient because it is not said that Peter Becket refused otherwise if a place of payment had been in the condition and it had been shewn in pleading that the party which was to receive the Mony was not there 1 Cro. 888. Plea of tender without setting forth a refusal not good Lea and Exellies Case And the acceptance after the day signifies nothing and upon that point the Court were of Opinion for the Plaintiff but Iudgment was not given because the parties shewed an inclination to compose the business Mason versus Watkins AN Action of Debt upon a Bond of 20 l The Defendant demanded Oyer of the Condition which was that the Obligor should not himself bring any Evidence at the Assizes to prove the two Cows now in question between one Owen Mason the younger and the said Watkins to be the Cows of the said Watkins or of Robert Gillo and that the said Gillo shall set in a Bill of Ignoramus that then the Bond should be void The Defendant pleaded quod ipse de deb ' praedict ' virtute Scripti Obligat ' praedict ' onerari non debet because that one of the said Cows was the Cow of the said Watkins and the other of the said Gillo and that before the Bond Owen Mason jun. in the said Condition mentioned being the Plaintiffs Son stole the said two Cows and was imprisoned thereupon and the Defendant Watkins was bound by Recognizance to prosecute him at the Assizes for the said Felony and there the said Mason jun. was indicted and convicted and the Defendant did give Evidence that one of the Cows was his prout bene licuit and that the Defendant did not give any Evidence by himself or any one else to prove the two Cows to be the Cows of the Defendant or the Cows of the said Gillo hoc paratus est verificare c. unde petit judicium c. To this the Plaintiff demurred and upon the first opening Iudgment was given for the Defendant for the Condition is against Law viz. to shift off evidence of Felony and that makes the Bond void vide Jone's Case 1 Leon. 203. and the Court recommended it to Serjeant Pawlet who was a Iudge in Wales where the Plaintiff lived to see to have him prosecuted for taking such a Bond. Termino Sancti Hillarii Anno 1 2 W. M. In Communi Banco Trippet versus Eyres Lond ' ss Debt upon a Bond to perform an Award JOHANNES Eyre nuper de Sheffeild Mannor in Com' Eborum Gen ' al' dict' Johannem Eyre de Sheffeild Mannor ' in Com' Eborum Gen ' summonitus fuit ad respondend ' Burrowes Trippet Gen ' de placito qd ' reddat ei trecentas libras quas ei debet injuste detinet c. Et unde idem Burrowes ê‘ Rich. Milward Attorn ' suum dic ' qd ' cum praedict ' Johannes nono die Marcii Anno Regni Domini Regis nunc tercio apud London ' in Paroch ' beatae Mariae de Arcubus in Warda de Cheap ê‘ quoddam Scriptum suum Obligatorium concessisst se teneri eidem Burrowes in praedict ' trecentis libris solvend ' eidem Burrowes cum inde requisit ' fuisset praedict ' tamen Johannes licet saepius requisit ' praedict ' trecentas libras eidem Burrowes nondum reddidit set ill ' ei hucusque reddere contradixit adhuc contradic ' unde dic ' qd ' deteriorat ' est dampnum habet ad valentiam centum librarum Et inde ê“duc ' Sectam c. Et ê“fert hic in Cur ' Scriptum praedict ' Quod debitum praedict ' in forma praedict ' testatur cujus dat' est die anno supradictis c. The Defendant craves Oyer of the Condition Et praedict ' Johannes ê‘ Johannem Gatacre Attorn ' suum ven ' defend ' vim injur ' quando c. Et pet ' audit ' Scripti praedicti ei legitur Pet ' eciam audit ' conditionis ejusdem Scripti ei legitur in haec Verba ss The Condition of this Obligation is such That if the above-bounden John Eyre his Heirs Executors and Administrators for his and their parts and behalfs do in all things well and truly stand to obey abide perform fulfill and keep the Award Order Arbitrament final End and Determination of Francis Barlow of Sheffeild in the said County Gent. and Robert Soresby of Sheffeild aforesaid Gent. Arbitrators indifferently named elected and chosen as well on the part and behalf of the above-bounden John Eyre as of the above-named Burrowes Trippet to Arbitrate Award Order Iudge and Determine of and concerning all and all manner of Action and Actions Cause and Causes of Actions Suits Bills Bonds Specialties Iudgments Executions Extents Quarrels Controversies Trespasses Damages and Demands whatsoever at any time or times heretofore had made moved brought commenced sued prosecuted done suffered committed or depending by or between the said Parties or either of them so as the said Award be made and put in Writing or by word of Mouth on or before the ninth day of April now next ensuing but if the said Arbitrators do not make such their Award of and concerning the Premisses by the time aforesaid that then if the said John Eyre his Heirs Executors and Administrators
it could not appear upon the Record but that the Verdict was against the Plaintiff upon the mistake of the Action whereas here it appears upon the Matter at large set forth in the Special Verdict that Judgment was given against the Plaintiffs upon the Merits of of the Cause And the Court were of Opinion that the Plea in Bar was good in this Case but they took the Case of Putt and Royston to be a Case of the same nature For tho' the Issue were General yet in regard of the Averments which in every such Plea there must be it appears to the Court that the Matter was the same as well as here it doth upon the Special Verdict and if it were not the same so that the Plaintiff was barred to the former by mistaking the Nature of his Action the Averment might be traversed Therefore by reason of that Case Adjudged and the Importunity of the Plaintiffs Leave was given by the Court to speak further to the Case the next Term. The Earl of Mountague versus The Lord Preston IN an Action on the Case for the Profits of the Office of Master of the King's Wardrobe the Plaintiff Declared That King Charles the Second in the 23th year of his Reign granted him a Patent to hold the said Office for Life reciting a former Grant thereof to the Earl of Sandwich and the Surrender of that Grant And that the Defendant by colour of a Patent granted to him in the First year of the late King James had entred upon the Office and taken the Profits and had deprived the Plaintiff of the whole benefit and profit of the Office Vpon Not guilty pleaded it came to a Trial at the Bar this Term and it was insisted upon for the Defendant That the Plaintiffs Patent having recited a former Grant that they must prove that Grant to have been surrendred To which it was Answered That if they took advantage of the Recital they must admit all that was recited as well the Surrender as the Grant And of that Opinion was the Court. Then the Defendant produced the Earl of Sandwich's Patent and this the Court held would put the Plaintiff to prove a Surrender And a Surrender was shewn in Evidence accordingly Note It was said in an Action of this Nature that it is not necessary to shew every particular Sum received by the Defendant But it is a good Evidence for the Damage to shew the Profit of the Office communibus annis Anonymus AFter an Extent upon a Statute and a Liberate out of this Court the Writ was Habere fac ' terr' tenementa instead of Liberari facias and it was moved to amend the word Habere in the Writ and to make it Liberari And after divers Motions the Court Ordered the Amendment to be accordingly because it is a Judicial Writ 8 Co. 157. a. 1 Cro. 709. A Writ of Enquiry was awarded to the Sheriffs of London and it was quod Inquirat instead of Inquirant and it was amended Vid. the Case of Walker and Riches 3 Cro. 162. and the Case of Keer and Guyn Hob. 90. but in that Case the Roll was wrong in a very material thing for it was not said in the Elegit the Lands and Tenements of the Defendant Anonymus AN Action of Debt was brought in this Court for a Sum of Money recovered in the Hundred Court and the Defendant was admitted to wage his Law tho' at first the Court doubted Vid. Mo. 276. for a Wager of Law to an Action of Debt brought for an Amercement in a Court Baron Note When the Defendant hath his Hand upon the Book before he is sworn the Plaintiff is to be called and he may be Non-suited The Defendant is to bring his Compurgators but they may be less than Eleven and they are sworn de credulitate Anonymus AN Action was brought for speaking of these words of the Plaintiff He broke my House like a Thief And upon Not guilty pleaded a Verdict was found for the Plaintiff And the Court held the words not to be Actionable Anonymus IN an Action for Words spoken of the Plaintiff in saying He was a Clipper and Coiner After Verdict upon Not guilty pleaded it was moved in Arrest of Judgment that the Words did not charge him with Clipping and Coining of Money and Clipping and Coining might be apply'd to many other things But the Court held the Words to be Actionable in regard of the strong Intendment and such Words are understood by those that heard them to mean Clipping and Coining of Money Anonymus AN Attorney brought an Action for that the Defendant said of him He is a Cheating Knave and not fit to be an Attorney After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Communication of his Profession and the Words did not necessarily relate to his Practice But the Court held the Action would lye for saying That he was not fit to be an Attorney shewed plainly that Cheating Knave had reference to that Anonymus UPon a Motion for a New Trial it appeared that the Solicitor for the Plaintiff who also was an Attorney had wrote two Letters to two of the Jury before the Trial importuning them to Appear and setting forth the Hardships that his Client had suffered in the Cause and how he had Verdicts for his Title The Court set aside the Trial for this Cause and Committed the Solicitor to the Fleet for this Misdemeanor being Embracing of a Jury and before his Discharge made him pay Ten pounds to the party towards the Charges of the Trial. Pretious versus Robinson THe Cause being at Issue in Hillary Term last a Venire was awarded and a Jury Retorned upon it and in Easter Term after another Venire was awarded and a Trial was by a Jury Returned upon the two Venire's Vpon this the Court set aside the Verdict for there was no Authority for the two Venire's so all the Proceedings thereupon are void and not aided by the Statute of 16 Car. 2. Cooke versus Romney AN Action of Covenant was brought against two and it was quod teneat conventionem instead of teneant and after a Writ of Error brought it was moved that it might be amended and made teneant It was Objected That False Latin in an Original could not be amended as hos breve for hoc breve so in Waste destrictionem for destructionem Blackamore's Case 8 Co. But the Court granted the Motion and ordered the Amendment And it was said of late days it had been done in case of a word Mistaken in an Original as in Ejectment divisit for dimisit Vid. in Blackamore's Case the like 159. b. Imaginavit for imaginatus est was amended Anonymus IN Trover and Conversion for a Mare Vpon Not guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Mare was said ad valentiam and it should have been pretii Sed non
Delivery thereof covenant and agree with the Defendant That so long as the Defendant and the said Sarah should Cohabit he should be saved harmless from the said 300 l Annual payment and that it should be lawful for him during such Cohabitation to detain the same ut per dictam Indenturam plenius apparet and averreth That ever since the last mentioned Indenture they did Cohabit and demands Judgment of the Action The Plaintiff Replies That they did not Cohabit modo forma prout the Defendant placitando allegavit hoc petit quod inquirat ' c. And to that the Defendant Demurred Birch Serjeant Argued for the Defendant That this latter Indenture which sets forth a mutual Agreement to Cohabit and that they did Cohabit which is alledged in the Bar and confessed by the Demurrer had dispensed with those Circumstances viz. A Writing mutually Subscribed arrested by two Witnesses giving Notice of each parties Intention so to Cohabit and this Covenant That it should be lawful for the Defendant to detain the same so long as such Cohabitation should continue as is therein mentioned might well be pleaded in Bar to the Action brought upon the first Indenture But by the Opinion of the whole Court Iudgment was given for the Plaintiff for they held that unless the Cohabitation had been according to the first Indenture it was no Bar for the last Deed had not taken away the effect of the former a latter Covenant cannot be pleaded in Bar of a former But the Defendant must bring his Action upon the last Indenture if he would help himself Anonymus A Fieri facias was taken out which was executed after the party was Dead upon the Goods in the hands of the Executor but the Teste was before his death But it appeared that the Delivery to the Sheriffs and Endorsment thereupon according to the New Statute of 29 Car. 2. was after his Death The Court held that at the Common Law the Execution had been clearly good But the Statute is that the property of the Goods shall be bound but from the delivery of the Writ to the Sheriff And the Court rather inclined that the Execution was good and that the Statute was made for the benefit of Strangers who might have a Title to the Goods between the Teste of the Writ of Execution and the time of the delivery thereof to the Sheriff But as to the party himself the Goods were bound from the Teste ever since the Statute of Vicesimo nono Car. 2. But it was Ordered to be further spoken to Watmough versus Holgate Eborum ss WILLIELMUS HOLGATE nuper de Sawley in Com. praedict ' Yeoman alias dictul Williel ' Debt upon a Bond. Holgate de Sawley in Com' Eborum Yeoman sum̄ fuit ad respondend ' Roberto Watmough Radulpho Duxbury Willelmo Swire de placito quod reddat eis quadraginta libras quas eis debet injuste detinet c. Et unde ijdem Robertus Radulphus Willielmus Swire per Robertum Scater Attorn ' suum dic ' quod cum praedict ' Willielmus Holgate secundo die Augusti anno regni domini Regis Jacobi secundi Angl ' c. quarto apud Gisborne per quoddam scriptum suum obligatorium concessisset se teneri praefat ' Roberto Radulpho Willielmo Swire in praedictis quadraginta libris solvend ' eisdem Roberto Radulpho Willelmo Swire cum inde requisit ' fuisset praed ' ramen Willielmus Holgate licet saepius requisit ' praedict ' quadraginta libras eisdem Roberto Radulpho Willielmo Swire nondum reddidit set ill ' ei hucusque reddere contradixit adhuc contradict unde dic ' quod deteriorat ' sunt dampn ' habent ad valenciam viginti librar ' Et inde produc ' sectam c. Et proferunt hic in Cur ' scriptum praedict ' quod debitum praedict ' in forma praedicta testatur cujus dat' est die anno supradicto c. Et praedictus Willielmus Holgate per Johannem Mitchel Attorn ' The Defendant craves Oyer of the Condition suum ven ' defend ' vim injur ' quando c. Et pet ' auditum scripti praedicti ei legitur c. petit etiam auditum Condiconis ejusdem scripti ei legitur in haec verba ss The Condition of this Obligation is such That if the above-bounden William Holgate Which is for the performance of an Award his Heirs Executors and Administrators for his and their parts and behalves shall and do in all things well and truly stand to obey abide perform fulfil and keep the Award Order Arbitrament final End and Determination of Ambrose Pudsey of Colton Esquire and Thomas Parker of Crouseholme Esquire Arbitrators indifferently elected and named as well on the part and behalf of the above-bounden William Holgate as of the above-named Robert Ralph and William Swire to arbitrate award order judge and determine of and concerning all and all manner of Action and Actions Cause and Causes of Actions Suits Bills Bonds Specialties Iudgments Executions Extents Quarrels Controversies Trespasses Damages and Demands whatsoever at any time heretofore had made moved brought commenced sued prosecuted done suffered committed or depending by or between the said parties so as the said Award be made and put into writing and ready to be delivered to the parties in difference or such of them as shall desire the same on or before the Eleventh day of November next then this Obligation to be void or else to stand in force The Defendant pleads That the Arbitraters made no Award Quibus lectis auditis idem Willielmus Holgate dic ' quod praedict ' Robertus Radulphus Willielmus Swire acconem suam praed ' inde versus eum habere non debent quia dic ' quod praedict ' Ambrosius Pudsey Thomas Parker Arbitratores praedict ' post confecconem scripti praedicti ad vel ante praedict ' undecim ' diem Novembr ' in Condicone scripti praedicti menconat ' nullum fecer ' arbitrium in t ' partes praedict ' in Condicone praedict ' superius menconat ' de in praemissis in Condicone praedict ' superius spec ' Et hoc parat ' est verificare unde pet ' Judic ' si praedict ' Robertus Radulphus Willielmus Swire acconem suam praedict ' inde versus eum habere debeant c. The Plaintiff Replies and sets forth the Award Et praedict ' Robertus Radulphus Willielm ' Swire dic ' quod ipsi per aliqua per praefat ' Willielm ' Holgate superius placitando allegat ' ab accone sua praedicta versus eum habend ' praecludi non debent Quia dic ' quod praedicti Ambrosius Pudsey Thomas Parker Arbitratores in Condicone praedict ' superius nominat ' accepetis super se onera arbitrandi in t ' partes praedict ' de super praemissis in Condicone praedicta superius
menconat ' post confecconem scripti praedicti ante praedict ' undecimum diem Novembr ' in Condicone praedicta superius spec ' scilicet decimo die Novembr ' anno regni domini Jacobi secundi nuper Regis Angl ' The Award made in Writing quarto apud Gisborne praedict ' fecer ' quoddam arbitrium suum in scriptis sub manibus sigillis suis de super praemissis praedictis adtunc ibidem partibus praed ' parat ' fore deliberand ' per quod quidem arbitrium iidem Arbitratores arbitraver ' ordinaver ' de super praemissis in Condicone praedicta superius spec ' modo forma sequen ' videlicet quod praedict ' Willielmus Holgate bene veracit ' solveret seu solvi causaret eisdem Roberto Watmough Radulpho Duxbury Willielmo Swire vel eorum alicui summam quindecim librar ' legalis monet Angl ' ad vel ante prim ' diem Decembr ' tunc prox ' sequen ' qui Arbitratores praedict ' judicaver ' praedict ' Robertum Radulphum Willielmum Swire sustinuisse in custag ' dampnis ratione cujusdam sectae sine causa per dict' Willielmum Holgate versus ipsos Robertum Radulphum Willielm ' Swire prosecut ' Et ulterius Arbitratores praedict ' ordinaver ' quod omnes sectae differenciae inter dict' Willielm ' Holgate ex una parte ipsos dictos Robertum Radulphum Willielmum Swire ex altera parte quae mot ' That all Suits should cease habit ' sive depend ' fuer ' ante diem dat' scripti Obligatorij praedicti absolut ' cessarent vacuae forent determinarentur prout per idem arbitrium inter alia plenius liquet apparet Et praedict ' Robertus Radulphus Willielmus Swire protestando quod praedict ' Willielmus Holgate non observavit performavit perimplevit seu custodivit aliquod in arbitrio praedicto superius spec ' ex parte ipsius Willielmi Holgate observand ' performand ' perimplend ' seu custodiend ' A breach of Non-payment assigned in the Award In facto iidem Robertus Radulphus Willielmus Swire dicunt quod praedict ' Willielmus Holgate non solvit praedict ' Roberto Radulpho Willielmo Swire vel eorum alicui summam quindecim librarum super praedict ' primum diem Decembr ' tunc prox ' sequen ' dat' arbitrij praed ' quas eis vel eorum alicui super eundem diem solvisse debuit secundum formam effectum arbitrij praedict ' Et hoc parat ' sunt verificare unde pet ' Judic ' debitum suum praed ' unacum dampnis suis occone detenconis debiti illius sibi adjudicari c. Et praedict ' Willielmus Holgate dic ' quod placitum praed ' praedict ' The Defendant Demurs Roberti Radulphi Willelmi Swire modo forma superius replicand ' placitat ' minus sufficien ' in lege existit ad praedict ' Robertum Radulphum Williemum Swire ad acconem suam praed ' versus ipm̄ Willielmum Holgate habend ' manutenend quodque ipse ad replicaconem illlam modo forma praed ' placitat ' necesse non habet nec per legem terrae tenetur respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' replicaconis in hac parte Idem Willielmi Holgate pet ' Judic ' quod praed ' Robertus Radulphus Willielm ' Swire ab accone sua praedicta versus eum habend ' praecludantur c. Et praed ' Robertus Radulphus Willielm ' The Plaintiff joyns in Demurrer Swire ex quo ipsi sufficien ' materiam in lege ad acconem suam praed ' versus praefat ' Willielmum Holgate habend ' manutenend ' superius replicando allegaver ' quam ipsi parat ' sunt verificare Quam quidem materiam praedict ' Willielm ' Holgate non dedic ' nec ad eam aliqualit ' respondet sed verificaconem illam admittere omnino recusavit iidem Robertus Radulphus Willielm ' Swire ut prius pet ' Judic ' debitum suum praed ' unacum dampnis suis occone detenconis debiti illius eis adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judic ' suum inde reddant dies dat' est partibus praedict ' hic usque à die Sancti Michaelis in un ' mensem de audiendo inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Watmough versus Holgate al' AN Action of Debt upon a Bond of 40 l The Condition was to perform an Award to be made of all Matters between them The Defendant pleaded no Award made The Plaintiff Replied and set forth an Award to have been made de praemissis viz. That the Defendant should pay to the Plaintiff 15 l at or before the first day of December then next ensuing which the Arbitrator did judge the Plaintiff to have sustained in Costs and Damages by reason of a Suit without Cause commenced by the Defendant against the now Plaintiff And further the Award was That all Suits and Differences between the said parties which were depending before the Date of the Bond should cease and determine and in facto dicit that the Defendant had not paid the said 15 l upon the 1st day of December in the said Award mentioned And to this the Defendant Demurred It was Argued First That this Award was all of one side for it doth not appear that there was any Difference between the parties save the Suit upon which the Costs are awarded viz. 15 l and that was the Suit of the now Defendant and what benefit hath he by staying his own Suit and paying 15 l for Costs Secondly He assigns the Breach that the 15 l was not paid upon the 1st day of December so it might be paid before and the Award is to pay it ad vel ante primum diem Decembris It was Answered to the first That there might be well intended other Differences tho' not set forth Again For ought appears the Plaintiff in the Action mentioned in the Award might be subject to have Costs taxed at the prosecution of the then Defendant whereas this Award stops the Defendant from applying to the Court for Costs As to the second If Issue be taken upon solvit ad diem payment before the Day maintains the Issue The Court inclined that the Award was good Sed Adjornatur Humphreys versus Bethily Quod vide ante ultimo Termino THe Court now delivered their Opinions That the Doubleness in the Declaration was cured by Answering and no Exception can be taken to it upon the General Demurrer And the Case in the 1 Roll. Rep. 112. Sanders and Crowly is the same with this Judicium pro Quer. The Lord Lexington versus Clarke and his Wife Trin. 1 Willielmi Mariae Rot. 1539. IN an
saepius requisit ' praedict ' Centum libr ' eidem Judithae nondum reddidit set ill ' ei hucusque reddere contradixit adhuc contradic ' Unde dic ' quod deteriorat ' est dampn ' habet ad valenc ' decem libr ' Et inde produc ' sectam c. Et profert hic in Cur ' scriptum praedict ' quod debitum praedict ' in forma praed testatur cujus dat' est die anno supradictis c. Et praedict ' The Defendant craves Oyer of the Condition Samuel per Johannem Empson Attornatum suum venit defendit vim injuriam quando c. Et petit auditum Scripti praed ' ei legitur c. pet ' etiam auditum Condiconis ejusdem scripti Et ei legitur in haec verba The Condition is for the performance of an Award The Condition of this Obligation is such That if the above-bounden Samuel Liversedge his Heirs Executors and Administrators for their parts and behalves shall and do in all things well and truly stand to obey abide perform fulfil and keep the Award Order Arbitrament final End and Determination of Edward Deane of Batley in the County of York Clerk and Robert Radcliffe of Adwalton in the said County Gent. Arbitrators indiffâ—rently elected and named as well on the part and behalf of the above-named Samuel Liversedge as of the above-named Judith Hanson to arbitrate award order judge and determine of and concerning all and all manner of Action and Actions Cause and Causes of Actions Suits Bills Bonds Specialties Iudgments Executions Extents Quarrels Controversies Trespasses Damages and Demands whatsoever at any time heretofore had made moved brought commenced sued prosecuted done suffered committed or depending by or between the said parties or either of them so as the said Award be made and in Writing or by Words of Mouth and ready to be delivered to the parties in difference or such of them as shall desire the same on or before Seven of the Clock in the Afternoon of this present Day then this Obligation to be void or else to remain in full force and virtue The Defendant pleads That the Arbitrators made no Award Quibus lectis audit ' â—idem Samuel dic ' quod praed ' Juditha accon ' suam praed ' vers cum habere non debet Quia dic ' quod Arbitrator ' praedict ' post confeccon ' Scripti praedict ' ante praed ' Septimam horam post Meridiem praed ' vicesimi quinti diei Julij Anno Domini Millesimo sexcentesimo octogesimo nono supradicto nullum fecer ' Arbitrium in t ' ipmÌ„ Samuel ' praefat ' Judith ' de super praemissis in Condicone praedict ' superius specificat ' Et hoc parat ' est verificare Unde pet ' Judicium si praedict ' Juditha accon ' suam praedict ' versus eum habere debeat c. The Plaintiff sets forth an Award made Ore tenus Et praedict ' Juditha dic ' quod ipsa per aliqua praeallegat ' ab accone sua praedict ' habend ' praecludi non debet quia dic ' quod ipsa eadem Juditha diu ante confeccon ' scripti praed scilicet Termino Sanctae Trin ' The Plaintiff impleaded the Defendant in the Common Bench. anno regni domini Regis dominae Reginae nunc primo in Cur ' ipsorum Rigis Reginae de Banco hic scilicet apud Westm ' in Com' Midd ' implacitasset ipsum Samuel ' in quodam placito Transgr ' super Casum pro eo quod idem Samuel ' dixiss de praefat ' Juditha diversa scandalosa Anglicana verba Quod quidem placitum tempore confecconis ejusdem scripti fuit penden ' indeterminat ' quodque Arbitrator ' praedict accept ' super se onere Arbitrij praedict ' immediate post confeccon ' scripti illius scilicet praedict ' Vicesimo quinto die Julij Anno Domini Millesimo sexcentesimo octogesimo nono supradicto ante Septimam horam post Meridiem ejusdem diei apud Wakefield praedict ' The Award made Ore tenus Arbitrium suum ore tenus de super praemissis in Condicone praed ' superius menconat ' fecer ' publicaver ' ac partibus praedict ' ibidem ante horam illam declaraver ' modo forma sequen ' videlicet quod pÌ„d ' Samuel solveret eidem Judithae duodecim pecias Aurij cuneat ' vocat ' Guinea's ac omnes tal ' denar ' summ ' qual ' eadem Juditha erogasset seu expendisset in circa prosecucon ' plac ' praed ' quodque immediate post hujusmodi solucon ' alt ' tam praedicta Juditha quam praedict ' Samuel ' daret alteri eorum per scriptum general ' relaxacon ' omnium Accon ' causar ' Accon ' demand ' quorumcunque usque praedict ' tempus confecconis Scripti praedict ' inter eos moven ' Et eadem Juditha ulterius dic ' quod tempore confecconis scripti Obligatorij praed ' Arbitrij praedicti quaelibet pecia hujusmodi Auri vocat ' Guine'as se attingebat in valore ad viginti un ' solid ' sex denar ' quodque adtunc ac praed ' tempore confeccon ' Arbitrij praed ' praedicta Juditha erogavit expendidit in circa prosecucon ' placiti praed ' summam undecim libr ' septem solid ' septem denar ' videlicet apud Wakefield praed ' Unde praed ' Samuel ' postea scilicet primo die Augusti anno regni Regis Reginae hunc primo apud Wakefield praed ' Notice of the Award habuit noticiam posteaque scilicet vicesimo die ejusdem Augusti apud Wakefield praedict ' eadem Juditha requisivit eundem Samuel ' ad solvend ' eidem Judithae tam praedict ' And requested the performance of it duodecim pecias Auri vel valor ' inde quam praedict ' undecim libr ' seprem solid ' septem denar ' protestando autem quod praedict ' Samuel non solvit eidem Judithae praedict ' summam undecim libr ' septem solid ' septem denar ' In facto eadem Juditha dic ' quod praedict ' Samuel non solvit eidem Judithae praedict ' duodecim pecias Auri cunat ' vocat ' Guinea's seu valor ' inde juxta forma effectum Arbitrij illius Et hoc parat ' est verificare Unde pet ' Judicium debitum suum praed ' unacum dampnis suis occone detenconis debiti illius sibi adjudicari c. Et praedict ' Samuel dic ' quod praedict placitum praedict ' Demurrer to the Replication Judithae superius replicando placitat ' ac materia in eodem content ' minus sufficien ' in lege existunt ad praedict ' Judith ' ad accon suam praedict ' versus ipmÌ„ Samuel ' habend ' menutenend ' quodque ipse ad placitum illud modo forma praed ' replicat ' necesse
non habet nec per legem terrae tenetur aliquo modo respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' replicaconis in hac parte Idem Samuel ut prius pet ' Judicium Et quod praedict ' Juditha ab accone sua praed ' habend ' praecludatur c. Et praedict ' Juditha ex quo ipsa sufficien ' Joynder in Demurrer materiam in lege ad acconem suam praedict ' versus praefat ' Samuel ' habend ' manutenend ' superius replicando allegavit quam ipsa parat ' est verificare Quam quidem materiam idem Samuel non dedic ' nec ad eam aliqualit ' respond ' sed verificacon ' ill ' admittere omnino recusat ut prius pet ' Judicium debitum suum praedict ' unacum dampnis suis occone detenconis debiti ill ' sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedict ' hic usque à die Paschae in quindecim dies de audiendo inde Judicio eo quod iidem Justic ' hic inde nondum c. Judith Hanson versus Liversedge IN an Action of Debt upon a Bond the Condition was to perform the Award of two Arbitrators in Writing or by word of Mouth The Defendant pleaded Nullum fecerunt arbitrium The Plaintiff replies That at the time of the Bond and Award she had an Action against the Defendant for scandalous Words and that the Arbitrator did make declare and publish their Award in manner and form following viz. That the Defendant should pay to the Plaintiff 12 Guinea's and all such Moneys as she had expended circa prosecutionem placiti praedict ' and that the parties should give mutual Releases of all Matters to the Date of the said Bond and saith that she laid out in the said Suit 11 l 7 s and demanded the said Sums of Money of the Defendant and protestando that the Defendant had not paid her the 11 l 7 s dicit in facto that he had not paid the 12 Guinea's awarded as aforesaid hoc parat ' est verificare c. To this the Defendant Demurred And Pemberton for the Defendant said First This Award as set forth appears to be void for 't is to pay the Charges expended circa placit ' praed ' and the Award doth not mention any Suit before and tho' the Plaintiff in her Inducement saith That she had an Action for Words against the Defendant then depending that will not help it for that is no part of the Award but the Award in the Form as 't is set forth is unintelligible there being no Suit mentioned before to refer placit ' praedict ' unto Secondly 'T is not sufficient to Award payment of the Charges in such a Suit it being altogether uncertain what the Sum will amount to Thirdly It ought to have been shewn that the Plaintiff had a Cause of Action in the Action that is mentioned to have been brought against the Defendant for Slander and so is Spigurnell's Case in Siderfin 1st Part 12. Curia As to the first if the Award were in Writing in such form of Expression it could not be good but he which sets forth an Award by Parol is not tyed to the words for the precise words might be very difficult to prove but 't is sufficient to shew the effect and substance of what was awarded by Word of Mouth and 't is sufficiently shew that this Award was made concerning that Action of Slander For the Second the Court held that the Award was good for it may be easily reduced to a Certainty when 't is made appear what was laid out in that Suit as in 1 Roll. Abr. 251. Beale and Beale and in the 3 Cro. 383. to pay the Charges of such a Voyage held a good Award Thirdly The Plaintiff need not shew that there was Cause of Action for that is left to the Arbitrators and they have power to award Charges thereupon tho' in point of Law there were no Cause of Action for the Parties have made the Arbitrators their Judges And the Court were not satisfied with the Opinion Reported by Syderfin in Spigurnell's Case and said he was then a young Reporter Whereupon Judicium pro Quer ' Major probi homines de Guldeford versus Clarke Surr ' ss JOHANNES CLARKE nuper de Guldeford ' Debt upon a By Law made by a Corporation by Prescription in Com' praedict ' Dyer Sum ' fuit ad respondend ' Majori probis hominibus Villae de Guldeford ' in Com' Surr ' de placito quod reddat eis viginti libras legalis monet ' Angl ' quas eis debet injuste detinet c. Et unde inde iidem Major probi homines Villae de Guldeford ' praed ' per Henr ' Dyve Attorn ' suum dic ' quod cum praedict ' Villa de Guldeford ' in dicto Com' Surr ' est antiqua Villa quodque probi homines ejusdem Villae à tempore cujus contrarij memoria hominum non existit fuer ' Antiqua Villa adhuc existunt corpus Corporat ' Politicum in re facto nomine per nomen Majoris proborum homin ' Villae de Guldeford ' in Com' Surr ' A Corporation time out of Mind To implead and be impleaded per idem nomen usi fuer ' placitare implacitari respondere responderi Cumque etiam infra Vill ' ill ' habetur à toto tempore supradict ' cujus contrar ' memoria hom ' non existit habebatur talis consuetudo usitat ' approbat ' quod Major probi homines Villae praedict ' pro tempore existen ' vel major pars eorundem in Com' A Custom to make By-Laws Concil ' congregat ' assemblat ' usi fuer ' consuever ' facere constituere leges constitucones pro bono regimine gubernacone Villae praed ' inhabitan ' ejusdem poenas poenalitat ' For good Government of the Corporation And to impose Penalties Custom to elect a Bayliff Annually super personas contra leges constitucones ill ' delinquen ' imponere Cumque etiam infra Villam praedict ' fuit antiquus Officiarius annuatim quolibet anno super diem Lunae prox ' post Festum Sancti Michaelis Archi ' pro uno anno tunc sequen ' per Majorem probos homines praed ' elect ' vocat ' Balliv ' ejusdem Villae ad negotia ejusdem Villae peragend ' Cumque etiam praed ' Major probi homines Villae praed ' The By-Law set forth secundo die Octobris anno regni domini Caroli secundi nuper Regis Angl ' c. tricesimo quarto apud Vill ' de Guldeford praedict ' in Com' Consilio adtunc ibidem congregat ' assemblat '
his Bill to have the Land Conveyed according to the Agreement above But for the Defendants it was much insisted upon that this being to settle the Lands in case Thomas should dye without Issue it should not be regarded in this Court for the Execution of a Trust of a Remainder or Reversion in Fee upon an Estate Tail shall not be compelled because it is subject to be destroyed by the Tenant in Tail as here Thomas might have done in case he had made a Settlement according to the import of that Writing who therefore could not have been compelled himself to have executed this Agreement But the Lord Chancellor Fynch Decreed the Land for the Plaintiff because it was proved that the Marriage with the Plaintiffs Wife was in expectation of the performance of this Agreement and he was obliged to have left the Land to the Plaintiff if he had had no Issue Termino Sanctae Trinitatis Anno 34 Car. II. In Cancellaria Collet versus Collet WIlliam Fox having three Daughters Mary Elizabeth and Martha the two latter being Married and the first a Widow by his Will devised in these Words Viz. I give unto Martha my Daughter the Sum of 400 l to be paid unto her by my Executors within one year next after my decease But I will and my desire is that Cornelius Collet the Husband of Martha upon the payment of the said 400 l shall give such Security as my Executors shall approve of that the said 400 l shall be laid out within 18 Months next after my decease and purchase an Estate of that value to be setled and assured upon her the said Martha and the Heirs of her Body lawfully begotten And in the Close of his Will were these words following Viz. I Will That after my Debts which I shall owe at the time of my Decease and my Funeral Expences and the Probat of this my Will be discharged then I do give all the rest of my Personal Estate Unbequeathed to purchase an Estate near of as good value as the same Personal Estate shall amount unto within one year next after my my decease Which said Estate so to be purchased I Will shall be setled and assured unto and upon my said three Daughters Mary Elizabeth and Martha and the Heirs of their respective Bodies lawfully begotten for ever or otherwise my said Daughter Mary and the Husbands of my said two other Daughters Elizabeth and Martha shall for such Moneys as they shall receive of my said Executors for the Overplus of my Personal Estate enter into one or more Bonds in the double Sum of Money as each part shall amount unto the same being to be divided into three parts unto my said Executors within 18 Months next after my decease to settle and assure such part or Sum of Money as each of them shall receive and have by this my Will for the Overplus of my Personal Estate unto and upon the Child and Children of my said Daughters Mary Elizabeth and Martha part and part alike Martha the Wife of Cornelius Collet died within six Months after the Testator leaving Issue only a Daughter who died within four Months after the Mother the other two Sisters surviving Cornelius Collet took out Letters of Administration both to Martha his Wife and likewise to his Daughter the Four hundred Pounds and likewise the Overplus of the Personal Estate being unpaid or disposed of Cornelius Collet preferred his Bill against the Executors and the surviving Sisters and thereby demanded the 400 l and likewise a third part of the Overplus which amounted unto 700 l And the Cause came to be heard before the Lord Chancellor upon Bill and Answer who Decreed the 400 l to the Plaintiff but as to the Surplus of the Estate the Bill was dismissed altho ' it was much insisted upon for the Plaintiff that he might have given Bond to secure the Surplus for his Child and so from the Child it would have come to him as Administrator But seeing that no Interest could vest in the Child till the Election were determined it not being material as to this Point whether the Executors or the Husband aâ— the Election the Father could not claim it as Administrator to the Child And then if the Money had been laid out in Land and the Settlement according to the direction of the Will the Husband would have had no benefit for there would have been a Ioynt Estate for Life in the Daughters with several Inheritances and no severance of the Ioynture by the Marriage and having Issue Co. Inst and so no Tenant by the Courtesie Therefore as to the Surplusage the Bill was Decreed to be dismissed Note As to the 400 l the Order of my Lord Chancellor was That Interest should be paid for it from the time of bringing the Bill Termino Sancti Michaelis Anno 34 Car. II. In Cancellaria West versus The Lord Delaware WEST Heir apparent of the Lord Delaware Exhibited his Bill against the said Lord setting forth That upon a Marriage agreed to be had between him and the Daughter of one Mr. Huddleston with whom he was to have 10000 l Portion The Lord his Father Articled to settle Lands of such yearly value for the Wives Ioynture for their maintenance and the Heirs of their Bodies c. That the Wife being now dead and without Issue and no Settlement made the Bill prayed an Execution of the Articles and a discovery of what Incumbrances there were upon the Lands to be setled To this the Lord Delaware Answered That he never intended to settle Lands but for the Wives Ioynture only and that the Plaintiff her Husband was not named in the Articles and so was Advised He need make no Settlement and upon that Reason the Plaintiff could not require him to discover Incumbrances An Exception being taken to the Answer for that it did not discover any thing touching Incumbrances it was Argued before my Lord and for the Defendant it was alledged That by the Course of the Court the time of the Discovery should be when the other Point was determined for if that be for the Defendant then no Discovery can be required but if otherwise that then the Defendant shall be put to answer Interrogatories as is usual in Cases of like nature And it cannot be Objected That the Estate may be charged with Incumbrances since the Bill because they will be of no avail On the other side it was said That this would create great delay for upon the discovery of Incumbrances other parties must be made to the Bill and therefore this Case differed from the Case of Account which concerns the Defendant himself only but the Question now is only for the making proper Parties The Court Ordered That a further Answer should be made Nota If a man deviseth that such a Sum of Money shall be paid out of the Profits of his Lands and the Profits will not amount to the Sum in such case the Land
went out upon such particular direction and recommendation 'T is some mitigation that they had such advice of Counsel otherwise I should not stick to fine them 100 l apiece We are bound to take care of the support of the Government I agree the Fines Keeling Chief Justice It is provided by 23 H. 8. cap. 5. that the Laws Acts c. to be made by the Commissioners of Sewers should stand good and effectual c. no longer than the Commission endured except they were Engrossed in Parchment and certified under their Seals into the Kings Court of Chancery and then the Kings Royal Assent to be had to the same c. But that was altered by this of 13 Eliz. whereby it is Enacted That their Laws c. should stand and continue in force without any such Certificate to be made thereof into the Chancery and then a little after in this Statute follows the Clause which hath been read and that refers wholly to Certificates or Returns to be made into the Chancery for the purpose aforementioned 'T is plain the Clause refers not to this Court for it speaks of returning their Comissions now their Commissions were never returnable into this Court this Court cannot be ousted of its Jurisdiction without special words here is the last Appeal the King himself sits here and that in person if the pleases and its Predecessors have so done and the King ought to have an account of what is done below in inferiour Jurisdictions 'T is for the avoiding of oppressions and other mischiefs To deny and oppose this and to set up uncontrolable Jurisdictions below tends manifestly to a Commonwealth and we ought and we shall take care that there be no such thing in ours days I know there is a great clamour so soon as an inferiour Jurisdiction is touched and t is thought we deal hardly with them But unless we will suffer this Court to be dissolved and the Prerogative of the King to be encroached upon we must oppose our selves to these Proceedings I have a great respect for these persons the Commissioners but 't is but usque ad aras When the Jurisdiction of the Crown the Justice of the Kingdom and the Duty of my place is concerned I ought not to spare my best Friends Some Presidents have been cited in this Case and many more might there are two memorable Records cited 1 Cro. concerning persons which contemned the Kings Writ and their Penalties I agree the Fines and hereby we do not go so high as our Predessours have gone Hundreds of years ago Nota This Proceeding and Sentence of the Court was upon Confession of the Commissioners the Court forthwith making an Entry and Record of their Confession In an Assize only where the Writ is Returnable into this Court it is apud Westmonaster ' but in all other cases where Writs are Returnable out of Chancery into this Court they are Returnable Ubicunque c. The King versus Jane D SHe was Indicted for Stealing of several things and pleading Not Guilty and a Jury sworn to try her the Witnesses not appearing were suspected to be tampered with by the Prisoner and the Jury were discharged and the Trial put off Vid. 1 Inst 227. b. Wise's Case AN Order of the Justices of the Peace for the maintenance of a Poor Woman was Confirmed tho' it appeared she was able of Body to work But the Justices of the Peace are Iudges of that Cousin's Case ERror to Reverse a Fine for Infancy Now 't was moved that the party being in Court she might be inspected and the Inspection Recorded and there was produced and read a Copy of the Register Book sworn to be a true one and several Affidavits of her Age. Curia Let the Inspection be now Recorded the Issue of her Infancy may be tryed at any time hereafter tho' she comes of Age. Nota A Prisoner in the Kings-Bench that lyes in the Common Side pays no Fees for his Lodging Anonymus IT was said by Twisden That if two submit to an Award this contains not a Reciprocal Promise to perform but there must be an Express Promise to ground an Action upon Nota A Fine which was set two or three Terms since was this Term set aside because of some surreptitious Practice and Misinformation to the Judge Auberie versus James ASsault Battery and Wounding The Defendant Iustified for that he being Master of a Ship commanded the Plaintiff to do some Service in the Ship which he refusing to do he moderate castigavit the Plaintiff prout ei bene licuit The Plaintiff maintains his Declaration absque hoc quod moderate castigavit and Issue was taken thereupon Negativum infinitum After Verdict for the Plaintiff it was moved in Arrest of Judgment that the Issue was not well joyned for non moderate castigavit doth not necessarily imply that he did Beat him at all and so no direct Traverse to the Defendants Iustification which immoderate castigavit would have been But De injuria sua propria absque aliqua tali causa would have been the most formal Replication But the Justices held that it would serve as it was after a Verdict tho' the Statute at Oxford 16 Car. 2. the last and most aiding Act of Jeofails be * Which was a mistake expired and that de injuria sua propria not adding absque aliqua tali causa hath been held good after a Verdict Green versus Cubit ERror to Reverse a Judgment given in the Court at Norwich in Debt upon a Bond where the Plaintiff declared that the Defendant per scriptum suum Obligatorium at a certain place there became bound c. The Defendant pleaded that he was in Prison scriptum praedictum was obtained by Duress which was found against the Defendant and Judgment given accordingly The Errors assigned were first Because he declares of a Writing Obligatory and both not say sigillo Defendentis sigillat ' 3 Cro. 571. Declaration in Covenant was held Insufficient for the same cause Secondly There is no place where the Defendant alledgeth himself to be in Prison and being in an Inferiour Court it shall not have any aid of Intendment But the Court Over-ruled the first because the Plea of the Defendant confesses the Deed and the second because the Imprisonment must of necessity refer to the place where the Plaintiff declares the Bond to be made For the Defendant pleaded that he was then in Prison wherefore they affirmed the Judgment 3 Cro. 55. 2 Cro. 420. 3 Cro. 737. 19 H. 6. 15. 19. Baldway and Ouston DEbt upon a Bond the Condition was That the Defendant should pay such Costs as should be stated by two Arbitrators by them chosen He pleaded that none were Stated The Plaintiff Replied That the Defendant did not bring in his Bill To which it was Demurred For tho' if the Defendant were the cause that no Award was made it was as much a forfeiture of his Bond as not to perform
it would be yet here there was a precedent act of the Plaintiffs necessary viz. To choose an Arbitrator which he ought to have shewn before any Fault could be assigned in the Defendant in not bringing in of his Bill And to this the Court did not incline Sed Adjornatur Nota It was said Tho' every Innkeeper may detain an Horse until he is paid for his Meat yet he cannot sell him for that was good only by the Custom of London Anonymus A Custom was alledged in the City of Norwich That in regard they maintained a Common Key for the Unlading of such Goods as were brought up the River in Vessels to the said City that every Vessel passing through the same River by the said Key should pay a certain Sum. It was held a void Custom as to those Vessels which did not unlade at the said Key nor any other place in the City there being no benefit redounding to them from the Maintenance of the Key they only passing by and were bound for another place and therefore could have no Imposition upon them But if they had Received their Fraight at the said Key it might extend to them And Coleman said The last Session of Parliament there was Complaint made against the Governour of Gravesend who would have prescribed to have Two shillings and Six pence of every Boat that passed by the Fort there And it was held to be Vnreasonable Anonymus TRover and Conversion for a pair of Curtains and Vallence was held Insufficient for the uncertainty of what was meant by a Pair in this case Bernard versus Bernard ERror to Reverse a Judgment in the Court of Hull upon an Assumpsit where the Plaintiff declared upon two Promises the first was upon an Indebitatus infra Jurisdictionem Curiae for Money lent The Error assigned was That the Loan did not appear to be within the Jurisdiction but upon view of the Record it was adtunc ibidem The other Promise was That there being Communication between the Plaintiff and Defendant concerning a House which was said to be at Hull-Bridge which the Plaintiff sold him the Money being unpaid and the Defendant unable in Consideration that the Plaintiff would release to him the said Debt he Promised to deliver him up the Possession of the House by a certain Day Then he Avers That tho' he Released him yet the Defendant had not delivered him up the Possession licet saepius requisitus It was assigned for Error That the House was not expressed to be within the Jurisdiction for the performance of the Promise must be as well within the Jurisdiction as the Promise it self But it is not material tho' there be other foreign Circumstances in the Case as Assumpsit upon a Promise to Re-deliver an Horse at Hull which the Plaintiff lent the Defendant at Hull to Ride to Beverly This that Court had Conusans of tho' Beverly was out of the Jurisdiction And tho' the House were alledged to be at Hull-bridge that shall be intended a Vill by it self and no part of Hull And of that Opinion was Twisden but Keeling otherwise Another Error was assigned That there was no Request laid which ought to have been being a Collateral thing viz To deliver up Possession of an House Sed non allocatur For being to be done at a time certain there was no need of Request but if no time had been set he would have had time during his Life unless hastned by Request Another Error assigned was That the Style of Court was Placita coram Majore c. virture Literarum Patentium H. 6. yet the issuing out Process and filing Bail was Entred secund ' consuetud ' Cur ' And for this 1 Cro. 143. Long and Nethercote's Case was cited where the same Matter was held to be Error for the Court being Erected within time of Memory could have no Custom to warrant their proceedings Sed non allocatur For it is according to Law and the just Course of their Court. But Twisden said If it had been secund ' consuerud ' Cur ' de temps d'ont memorie ne court it had been Ist Girling versus Alders IN a Prohibition to the Court of the Honour of Eye the Case was One Contracted with another for divers parcels of Malt the Money to be paid for each parcel being under Forty Shillings and he levied divers Plaints thereupon in the said Court Wherefore the Court here granted a Prohibition because tho' they be several Contracts yet forasmuch as the Plaintiff might have joyned them all in one Action he ought so to have done and Sued here and not put the Defendant to an unnecessary Vexation no more than he can split an entire Debt into divers to give the Inferious Court Jurisdiction in fraudem Legis Heskett versus Lee. PAsch 21 Car. 2. Rot. 408. Error to Reverse a Common Recovery had in the County Palatine of Lancaster against an Infant The first Error was assigned in a Variance between the Writ and the Count the Writ was of Lands in Bikerstaffe and the Count was Bickerstaffe 5 Rep. 46. Isfeild for Iffeild but there the Court suffered it to be amended being the default of the Clerk Sed non allocatur quia idem sonant Another Error was assigned in the Entry of the Admission of the Guardian Which was thus Concess ' est per Cur ' quod Johannes Molineaux Armig ' sequarur pro Thoma Heskett Armig ' ut Guardian ' praedict ' Thomae in plito terrae versus Lee Whereas it was said it should have been ad comparendum defendendum and this is ad sequendum which is a Form proper only for the Demandant and so is the 2d Cor. 641. And the Reason why Infants are bound by Recoveries when Guardians are assigned them is Because if they suffer any Wrong they have an Action against the Guardian in whose default it was Whereas if the Infant should bring an Action in this Case and declare against Molineux That he was admitted as Guardian to defend for him if Issue were taken upon it by this Record the Tryal would be against him Again It is sequatur pro Thoma ut Guardians and ut is but similitudinary Another Error was assigned in the Entry of the Appearance which was praedict ' Thomas Heskett per praed ' Johannem Molineux qui specialiter admissus est per Cur ' ad sequend ' pro praedict ' Tho' venit in propria persona defendit jus suum Where it was said It must be taken that the Tenant appeared in Person and not the Guardian and a Recovery suffered by an Infant where he appears by Attorney or in proper Person is Erroneous Rolls 731. But notwithstanding these Errors the Court affirmed the Recovery For the Admission of the Guardian ad sequend ' is proper enough for it signifies no more than to follow the Cause And in many Cases the Tenant or Defendant doth Prosecute as in Voucher praying Tales carrying down Trials by Proviso
at the end of the said term and so the said Defendants broke the Covenants ad damnum of the Plaintiff 300 l The Defendant pleaded that the said Richard Cale in his life-time did demolish the three Houses demised and upon the ground whereon they stood did erect three new Houses according to the agreement which during the term were kept well repaired and at the end of the term left in good repair and so yielded up according to the Covenant aforesaid de hoc ponit c. And as to the not repairing the Pavements traverseth that also and the like as to repairing of Tiles and Walls The Plaintiff as to the not repairing of one House in the Declaration mentioned and delivering it up well repaired demurs to the Defendants Plea which Demurrer came to be argued this Term and the sole question was upon this Covenant whether the Defendant being obliged only to build three Houses and having built one more whether the Covenant did not bind him to repair and deliver up that House well repaired as well as those which were agreed to be built And the Court were of Opinion that the Covenant did extend to the other House as well as to the three which were agreed to be built For in the last Covenant which is to deliver up well repaired 't is dicta premissa ac Domos Edificia superinde fore erect which is general and 't is the rather so to be taken because in the first Covenant for keeping in repair during the term 't is the Houses agreed to be built which words agreed to be built are left out in the last Covenant which the Court took to be a distinct Covenant Rokeby doubted it seeming to him to be all as one Covenant and so all the subsequent matter concerning leaving the Houses well repaired should be restrained and understood of those agreed to be built But Iudgment was given for the Plaintiff upon the reasons aforesaid It was also objected on the part of the Defendant that Dowse the Plaintiff was not an Assignee in this Case to bring Covenant for that the term in the reversion was devised to him for Life only and if he died within the Term then to his first Son c. To this it was answered that the Devise of the term to him passed the whole Estate and the remainder to the Son was but a possibility and an executory Devise Welbie versus Phillips IN Debt for Rent the Plaintiff declared upon a Demise made the 25th of March Anno nuper Regis Jac. 4. of one Messuage to hold from thenceforth quamdiu ambabus partibus placeret yielding 10 l Rent quarterly and avers that the Defendant entered by virtue of the said Demise and continued possessed of the Premisses till Christmas then next following and for 50 s a quarters Rent ending at the said Christmas Day he brings his Action and so lays two several other Demises of two other Houses to begin at the same time under the same Rent and demands a quarters Rent upon each at Christmas aforesaid in all 7 l 10 s which the Defendant did not pay which he lays ad damnum 5 l The Defendant demurred to this Declaration for that he sues for a quarters Rent upon each Demise ending at Christmas whereas there were two quarters incurred before which he doth not shew were paid and so sues for less than upon his own shewing appeareth to be due and the Case of Baily and Offord 3 Cro. was cited where upon a Demise rendring 31 s per annum at our Lady Day and Michaelmas the Plaintiff declared for 15 s and 6 d due for a years rent ending at our Lady Day and held naught because he demands but 15 s and 6 d and doth not shew that the rest of the years Rent was satisfied and the Case of Clothworthy in 3 Cro. where in a Writ of annuity the Plaintiff demanded the Arrears incurred at Michaelmas 3 Car. 1. and brought his Writ the 16th of April 4 Car. 1. and said in that Case by Maynard that a man cannot bring an Action for part of a Debt without he shews the rest satisfied Vide 2 Cro. 499. But the Court gave Iudgement for the Plaintiff and said this was not like the Cases cited for in the first Case of Baily the whole years Rent is said to be due and yet demands but half a year And for the Case of Clothworthy there the Iudgment as appears by 3 Cro. and Ro. Abr. 1 part 229. was that he should recover the Arrears before the Writ and pending the Writ whereas he demanded the Arrears but to Michaelmas before the Writ brought and so the Iudgment was for more than was demanded but in this Case every quarters Rent is a several Debt and distinct Actions may be brought for each quarters Rent and so not like Debt brought for part of the Mony upon a Bond or Contract Vide for this 7 H. 6. 26. a. Allen 57. Noy's Rep. 45. Chase versus Sir James Etheridge THe Plaintiff in an Action for Words had taken out an Original and delivered a Declaration which the Defendant upon searching for the Instructions given by the Plaintiff to the Cursitor found differed in divers material things from the Original and thereupon the Defendant pleaded the Statute of Limitations that the words were not spoken within two years The Plaintiff suspecting some miscarriage had been upon which the Defendant as he conceived did rely for the Plaintiff knew the Fact would not serve the Defendant to plead the Statute he found that he had mistaken his Original and upon that petitions the Master of the Rolls for another Original that should warrant the Declaration delivered and had it granted and filed in Court whereupon the Defendant moved the Commissioners of the Great Seal and shewed the whole matter upon which they set aside the Order of the Master of the Rolls and ordered an Original to be taken out according to the first Instructions given to the Cursitor And now the Court was moved here that the last Original might be filed and so it was ordered by the Court for that taken out by the Order of the Master of the Rolls was unduly taken out Whitaker versus Thoroughgood BEnjaminus Thoroughgood Mil. attach fuit per breve Domini Regis Dominae Reginae de privilegio è Cur. hic emanen ad respond Edwardo Whitaker Gen. un Attorn Cur. Domini Dominae Regis Reginae de Banco juxta libertat privileg ejusdem Cur. pro hujusmodi Attorn aliis Ministris de eodem Banco a tempore quo non extat memoria usitat approbat in eadem Cur. de placito transgressionis super casum c. and so declares in propria persona in an Action for that the Defendant being a Justice of Peace in the time of the late King James made a Warrant directed to the Constable charging the Plaintiff with being outlawed of High-Treason ubi re vera c.
The Defendant demurred and shewed for Cause that in the prescription for the Priviledge it was tempore quo non extat memoria which was said to be insensible and the course in pleading was to say a tempore cujus contrarium memoria hominum non existit Sed non allocatur for the Court took the words to be sufficiently expressing time out of mind and divers Presidents are in this manner Rastalls Entries 475 476 and 143. Shipley versus Craister IN an Action of Debt upon a Bond of 80 l the Plaintiff declared that the Defendant entred into a Bond to him who was then the Sheriff of Northumberland by the name of his Office of 80 l The Defendant demanded Oyer of the Condition which was that one Jenkin Wood should appear coram Dom. Rege apud Westm die Lunae proxime post Octab Pur. c. and then he pleaded a Release of all Demands under the Plaintiffs Hand and Seal made to him bearing date the 9th day of March in the third year of the raign of the late King James profert hic in Cur. the Release And to this the Plaintiff demurred Serjeant Jefferson offered to argue that this Bond being taken by the Sheriff according to the duty of his Office and for the benefit of the Plaintiff who brought the Action that his Release to the Obligor would not bar this Action but the Court said there was no colour but it should be a good bar But upon perusing of the Record it appeared that the Defendant had pleaded that the Plaintiff had released by his Deed of Release bearing date the 9th day of March whereas the Release produced in Court bore dath the 19th of the same March and this the Court held a material variance Note The King cannot discharge a Recognizance taken for Security of the Peace but after 't is broken he may 11 H. 7. 12. Holland versus Lancaster ss JOHANNES LANCASTER sumÌ„ fuit ad respondend ' Count in Replevin Thomae Holland de placito quare cepit averia ipsius Thomae ea injuste detinuit contra Vad ' Pleg ' c. Et unde idem Thomas ê‘ Robertum Bird Attorn ' suum queritur qd ' praed ' Johannes vicesimo secundo die Octobris Anno Regni Domini Jacobi secundi nuê‘ Regis Angl c. tercio apud Mounckton in Insula de Thanett in quodam loco ibidem vocat ' le Barnyard cepit averia videlicet octo Vaccas ipsius Thomae ea injuste detinuit contra vad ' pleg ' quousque c. Unde dic ' qd ' deteriorat ' est dampnum habet ad valenc ' decem librarum Et inde ê“ducit sectam c. Conuzance as Bailiff to the Dean and Chapter of Canterbury for a Distress for a Fine upon an Alienation Dean and Chapter seised of a Mannor in Fee in jure Ecclesiae Et praed ' Johannes Lancaster per Brian ' Courthop Attorn ' suum ven ' defend ' vim injur ' quando c. Et ut Ballivus Decani Capitalis Ecclesiae Cathedral ' Metropolitan ' Cantuar ' bene cognoscit captionem averiorum praedictorum in praedict ' Clauso in quo c. juste c Quia dic ' qd ' diu ante praedict ' tempus captionis averiorum praed ' ac eodem tempore quo c. praed ' Decanus Capital ' fuer ' seisit ' de Manerio de Mounckton cum pertin ' in Com' Kanc ' praed ' in dominico suo ut de feodo in jure Ecclesiae suae praedict ' Qd'que quidam Johannes Sabine Barronettus diu ante praed ' tempus quo J. S. seized in Fee of the locus in quo c. suit seisit ' de tribus Mesuagiis quatuor Horreis centum quadraginta Acris terrae octogint ' acris marisci cum pertin ' in Parochiis de Mounckton sancti Nicholai Atwade in Insula Thanett in Com' Kanc ' praed ' unde praed ' Clausum in quo c. est praed ' tempore quo And held it of the Dean and Chapter By fealty and Rent and Suit of Court c. necnon a tempore cujus contrar ' memoria hom ' non existit suit parcel ' in dominico suo ut de feodo illa tenuit de eisdem Decano Capitalo ut de Manerio suo praed ' per fidelitat ' reddit ' sex librar ' duorum solidorum sex denar ' un ' oboli singulis annis ad Festum Sancti Michaelis ArcÌ„hi solvend ' per servicium faciend ' sectae ad Cur ' ipsorum Decani Capituli Manerii sui praedict ' de tribus septimanis in tres septimanas apud Manerium ill ' The Dean and Chapter seized of the Services tenend ' de quibus quidem serviciis iidem Decanus Capitalus fuer ' seisit ' per manus praefat ' Johannis Sabine ut per manus veri tenentis sui videlicet de fidelitate secta Cur ' praedict ' ut de feodo jure ac de reddit ' praed ' in dominico suo ut de feodo Et praedict ' Johannes Lancaster ulterius dic ' A Custom for the Lord to have a year and halfs Rent upon every Alienation qd ' infra Manerium praed ' talis habetur consuetudo a tempore quo non extat memoria hom ' habebatur scilicet qd ' post quamlibet alienationem in feodo vel de statu liberi tenementi alicujus parcel ' terrae vel tenÌ„torum tent ' de Manerio praed ' Dom ' Manerii praed ' pro tempore existen ' cum talis alienatio acciderit habuit habere consuevit reddit ' un ' anni medietat ' reddit ' unius anni per quem tal ' terrae vel tenementa sic alienaÌ„t ' tent ' fuer ' de Manerio praedict ' nomine finis pro alienatione Et sic dictus finis pro alienatione sic ut praefertur per consuetudinem Manerii praedict ' solubil ' aut aliqua pars in aretro fuit insolut ' qd ' tunc Dom ' And power to distrain for it if in arrear Manerii praedict ' pro tempore existen ' de tempore in tempus ad omnia tempora duran ' toto tempore praed ' quando quoties necesse requisivit distrinxit usus fuit consuevit distringere in super terras tenementa praed ' de Dom ' Manerii praed ' ut de eodem Manerio tent ' sic ut praefertur alienat ' quousque dictus finis pro alienatione sic ut praefertur solubil ' Quousque it be paid solut ' soret Et praedict ' Johannes Lancaster ulterius dic ' qd ' praedict ' Decano Capitulo de Manerio praedict ' cum pertin ' ac praed ' Johanne Sabine de Mesuagiis Horreis Terris praed ' cum perrin ' Unde c.