' Francisco Wythens Mil ' Justiciariis Richardo Holloway Mil ' Justiciariis Thoma Walcot Mil ' Justiciariis MEmorandum That the First day of this Term Sir Thomas Jones Chief Justice of the Common-Pleas had his Quietus and Sir Henry Beddingfield one of the Justices of the same Court succeeded him in that Office Likewise the Honourable William Mountagu Esq Lord Chief Baron of the Exchequer had his Quietus and Sir Edward Atkyns one of the Barons of the same Court succeeded him Sir Job Charleton one of the Justices of the Common-Pleas had his Quietus but was made Chief Justice of Chester and Sir Edward Lutwich the King's Serjeant was made one of the Justices of the Common-Pleas and Serjeant Heath was made one of the Barons of the Exchequer Okel versus Hodgkinson THE Father and Son join in a Fine in order to make a Settlement upon the second Wife of the Father who was only Tenant by the Curtesie the Remainder in Tail to his said Son One of the Cognizors died after the Caption and before the Return of the Writ of Covenant and now a Writ of Error was brought to Reverse it and this was assigned for Error Curia If it had been in the Case of a Purchasor for a valuable Consideration the Court would have shewed him some favour but it being to do a wrong to a young Man they would leave it open to the Law THE first day of this Term being the 22th day of April there was a Call of Serjeants viz. Sir John Holt of Grays-Inn Recorder of London who was made Kings Serjeant Sir Ambrose Phillips made also Kings Serjeant Christopher Milton John Powell John Tate William Rawlinson George Hutchins William Killingworth Hugh Hodges and Thomas Geers They all appeared that day at the Chancery-Bar where having taken the Oaths the Lord Chancellor Jefferies made a short Speech to them after which they delivered a Ring to him praying him to deliver it to the King They went from the Inner-Temple-Hall to Westminster and Counted at the Common-Pleas and gave Rings the Motto whereof was DEUS REX LEX Dominus Rex versus Saloway SAloway drowned himself in a Pond and the Coroners Enquest found him Non Compos Mentis because 't is more generally supposed that a Man in his Senses will not be Felo de se The Kings Councel moved for a Melius Inquirendum and that the Inquisition might be quashed for that it sets forth Quod pred Defend circa horam octavam ante meridiem in quoddam stagnum se projecit per abundantiam aquae ibidem statim suffocat emergit ' erat which is insensible Pemberton Serjeant contra Here is no Exception taken to the substance of the Inquisition and the word suffocat had been sufficient if the word emergit ' had been left out The Court were of Opinion that there being another word in this Inquisition which carries the sense 't is therefore sufficient but if it had stood singly upon this word Emergit ' it had not been good And this Fact happening about the time of the general Pardon the Court was of Opinion that where an Interest is vested in the King a Pardon of all Forfeitures will not divest it but that nothing was vested here before Inquisition found 2. It was objected that this Inquisition ought to set forth that Saloway came by his death by this means Et nullo alio modo quocunque To which it was answered by Pemberton that in matters of Form only the Iudges have sent for the Coroner into Court and ordered him to amend it Rodney versus Strode AN Action on the Case was brought against three Defendants one of them suffered Iudgment to go by default In a joynt Action the Jury may sever the Damages and the other two pleaded Not Guilty The Cause was tryed the last Assises at Exeter and it was for imposing the Crime of Treason upon the Plaintiff and for assaulting and imprisoning of him there was a Verdict for the Plaintiff and 1000 l. damages against Mr. Strode and 50 l. against the other Defendant who pleaded The Plaintiff entred a nolle prosequi against him who let the Iudgment go by default and against the other Defendant for the 50 l. damages and took judgment only against Mr. Strode Serjeant Pemberton moved for a new Trial by reason of the excessive Damages which were not proportioned to the quality of the Plaintiff he being a Man of mean Fortune But it was opposed by the Plaintiff for that the Defendant pursued him as a Traytor and when he was apprehended for that Crime he caused him to be arrested for 1000 l. at the Suit of another person to whom he was not indebted so that upon consideration of the Circumstances of the Case the Court refused to grant a new Tryal Then Serjeant Pemberton for the Defendants moved in arrest of Iudgment and for cause shewed that the Iury have found both guilty and assessed several Damages which they cannot do because this is a joynt Action to which the Defendants have pleaded jointly and being found guilty modo forma the Iury cannot assess the damages severally for the damage is the same by the one as the other Cro. Eliz. 860. Austen vers Millard al' and therefore it hath been adjudged that where an Action of Battery was brought against three and one pleaded not guilty and the other two Son Assault demesne and several damages found against them it was held ill for that very reason because it was a joint offence 'T is true where there are divers Defendants and damages assessed severally the Plaintiff hath his election to take execution de melioribus damnis but this is when the Trials are at several times So 't is where they plead several Pleas Cro. Car. 239. Walsh versus Bishop as in an Action of Battery one pleads not guiity and the other justifies and both Issues are found for the Plaintiff in such case he may enter a non pros against one and take Iudgment against the other because their Pleas are several but where they plead jointly the Iury cannot sever the Damages But Mr. 1 Bulst 157. Sampson vers Cramfield al' Rast Entr. 677. b. Pollexfen for the Plaintiff insisted that even in this case damages may be assessed severally for where two Defendants are sued for the same Battery and they plead the same Plea yet damages may be assessed severally So was Trebarefoot and Greenway 's Case in this Court which was an Action for an Assault and Battery and false Imprisonment one of the Defendants pleaded not Guilty and the other justified Issue was joined and there was a Verdict for the Plaintiff and damages assessed severally the Plaintiff entred a nolle prosequi as to one and took judgment against the other and upon this a Writ of Error was brought in this Court and the Iudgment was affirmed So if an Action of Trespass be brought against two for taking of 100 l.
the one took 70 l. and the other 30 l. damages shall be assessed severally It was admitted that regularly the damages ought to be entire especially where the Action is joint but where the Facts are several damages may likewise be so assessed but in this Case the Iury hath done what the Court would do had it béen in a Criminal Cause Curia This is all but one Fact which the Iury is to try 'T is true when several Persons are found Guilty criminally then the damages may be severed in proportion to their Guilt but here all are equally guilty of the same offence and it seems to be a contradiction to say that the Plaintiff is injured by one to the value of 50 l. and by the other to the value of 1000 l. when both are equally Guilty Every Defendant ought to answer full as much as the Plaintiff is damnified now how is it possible he should be damnified so much by one and so little by the other But notwithstanding this Opinion Iudgment was afterwards given for the Plaintiff Peak versus Meker IN an Action on the Case for Words the Plaintiff declared that he was a Merchant and bred up in the Church of England and that when the present King came to the Crown the said Plaintiff made a Bonfire at his Door in the City of London and that the Defendant then spoke of him these words for which he now brought this Action viz. He innuendo the Plaintiff is a Rogue a Papist Dog and a pitiful Fellow and never a Rogue in Town has a Bonfire before his Door but he The Plaintiff had a Verdict and 500 l. Damages were given A Writ of Error was brought but it was adjudged without argument that the words were actionable Joyner versus Pritchard AN Action was brought upon the Statute of R. II. Admiralty for prosecuting of a Cause in the Admiralty Court which did arise upon the Land it was tried before the Chief Iustice in London and a Verdict for the Plaintiff Mr. Thompson moved in Arrest of Iudgment for that the Action was brought by Original in which it was set forth that the Defendant prosecut fuit adhuc prosequitur c. in Curia Admiralitat now the prosequitur is subsequent to the Original and so they have recovered Damages for that which was done after the Action brought Curia These words adhuc prosequitur must refer to the time of suing forth this Original like the Case of a Covenant for quiet Enjoyment and a breach assigned that the Defendant built a Shed whereby he hindred the Plaintiff that he could not enjoy it hucnsque which word must refer to the time of the Action brought and not afterwards Iudgment was given for the Plaintiff Dominus Rex versus ........ AN Information was brought against the Defendant for Forgery Forgery setting forth that the Defendant being a man of ill fame c. and contriving to cheat one A. did forge quoddam scriptum dated the 16th day of October in the year 1681. continens in se scriptum obligatorium per quod quidem scriptum obligatorium praed A. obligatus fuit praed Defend in quadraginta libris c. He was found Guilty and afterwards this Exception was taken in arrest of Iudgment Viz. That the Fact alledged in the Information was a contradiction of it self for how could A. be bound when the Bond was forged 2. It is not set forth what that scriptum obligatorium was whether it was scriptum sigillatum or not Curia The Defendant is found Guilty of the forging of a Writing in which was contained quoddam scriptum obligatorium and that may be a true Bond. Iudgment was arrested MEMORANDUM On Tuesday April the 27th Sir Thomas Powes of Lincolns-Inn was made Sollicitor General in the Place of Mr. Finch and was called within the Bar. Hanchet versus Thelwal IN Ejectment a special Verdict was found Devise What words in a Will make an Estate for Life and what in Tail in which the Case did arise upon the construction of the words in a Will Viz. The Testator being seised in Fee had Issue Two Sons and Four Daughters He made his Will and devised his Estate being in Houses by these words Viz. Irem I give and bequeath to my Son Nicholas Price my Houses in Westminster and if itplease God to take away my Son then I give my Estate to my four Daughters naming them share and share alike and if it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving And if all my Sons and Daughters dye without Issue then I give my said Houses to my Sister Anne Warner and her Heirs Nicholas Price entred and died without Issue then the four Sisters entred and Margaret the eldest married Thellwel and died leaving Issue a Son who was the Lessor of the Plaintiff who insisted upon his Title to a fourth part of the Houses The Question was what Estate the Daughters took by this Will whether joint Estates for Life or several Remainders in Tail If only joint Estates for Life then the Plaintiff as Heir to his Mother will not be entituled to a fourth part if several Remainders in Tail then the Father will have it during his Life as Tenant by the Curtesie This Case was argued this Term by Mr. Pollexfen for the Plaintiff And in Hillary Term following by Councel for the Defendant The Plaintiffs Council insisted that they took joint Estates for Life and this seemed to be the intent of the Testator by the words in his Will the first Clause whereof was Viz. I give and bequeath my Houses in W. to Nicholas Price Now by these words an Estate for Life only passed to him and not an Inheritance for there was nothing to be done or any thing to be paid out of it 2. The next Clause is Viz. If it please God to take away my Son then I give my Estate to my four Daughters share and share alike Now these words cannot give the Daughters a Fee-simple by any intendment whatsoever but if any word in this Clause seems to admit of such a Construction it must be the word Estate which sometimes signifies the Land it self and sometimes the Estate in the Land But here the word Estate cannot create a Fee-simple because the Testator gave his Daughters that Estate which he had given to his Son before and that was only for Lise Then follow the words share and share alike and that only makes them Tenants in Common 3. The next Clause is Viz. If it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving These words as they are penned can have no influence upon the Case 4. Then followeth the last Clause Viz. And if all my Sons and Daughters dye without Issue then I give c. These words create no Estate tail in the
Case Plea where it amounts to the general Issue wherein the Plaintiff declared that the Defendant exhibited a Peittion against him and Sir R. H. before the King in Council by reason whereof he was compelled to appear at his great Expence and that he was afterwards discharged of the matter alledged against him which was the erecting of Cottages in Kingswood Chase in the County of Gloucester This Action was first laid in Gloucestershire and the Defendant moved that it might be laid in Middlesex where the Petition was exhibited But it was insisted for the Plaintiff that where a cause of Action ariseth in two places he hath his Election to lay it in either The Court held that the exhibiting of the Petition was the ground of the Action and though it conteined matter done in another place yet it shall be tried in the County where the Petition was delivered for suppose the Petition had contained Matter done beyond Sea c. Now in this Case the Action being brought in Middlesex the Defendant pleaded that the Chase was injured by the erecting the said Cottages by the digging of Pits and by the making of a Warren by Sir John Newton and that the other person Sir R. H. being then a Iustice of the Peace for the County of Gloucester upon Complaint to him made did not impose Penalties upon the Offenders but did abet the said Plaintiff by reason whereof the Deer were decreased from 1000 head to 400. To this Plea the Plaintiff demurred Mr. Pollexfen argued against the Plea first that it charged Sir R. H. with no particular Crime but enlargeth the Matter upon the Plaintiff and amounts to no more than the general Issue for the Question is whether the Defendant hath fasly prosecuted the Plaintiff before the King in Council which is only matter of fact and which is charged upon the Defendant and therefore he ought to have pleaded Not-Guilty 'T is true where the Defence consists in matters of Law there the Defendant may plead specially but where 't is purely fact the general Issue must be pleaded E contra E contra It was insisted upon that what is alledged in this Plea might be given in Evidence upon the general Issue but the Defendant may likewise plead it specially and not trust the Matter to the Lay-gents As in Conspiracy for procuring of the Plaintiff to be falsly and maliciously indicted of a Robbery Cro. Eliz. 871 900. 21 E. 3.17 27 Ass 12. Kelway 81. Moor 600. Rast Ent. 123. Sed nota This Defence was matter of Law the Defendants plead that they were robbed and suspecting the Plaintiff to be guilty procured a Warrant in order to have the Plaintiff examined before a Iustice of the Peace of which he had notice and absented himself but was afterwards committed to the Gaol by a Iudge of this Court who advised them to preferr a Bill of Indictment c. quae est eadem conspiratio this was adjudged a good Plea though it amounted to no more than the general Issue and all this matter might have been given in Evidence at the Trial. The Court except Iustice Allybon advised the Plaintiff to waive his Demurrer and the Defendant to plead the general Issue But Iustice Allybon took an Exception to the Declaration for that the Plaintiff had not alledged any damnification but only that he was compelled to appear and doth not shew how either by the Petition of the Defendant or by Summons c. He ought to set forth that he was summoned to appear before the King in Order to his discharge but to say coactus fuit comparere is incertain for that might be in the vindication of his Honour or Reputation He complains of a Petition exhibited against him which the Defendant hath answered by shewing to the Court sufficient matter which might reasonably induce him so to to and for that reason he held the Plea to be good Sed adjornatur Rex versus Hockenhul AN Information was exhibited against him for a Riot Misprision of a Clerk amended of which he was found guilty and this Exception was taken in arrest of Iudgment Memorandum quod ad general ' quarterial ' Session ' Pacis tent ' c. die Sabbati prox ' post quindenam Sancti Martini praesentat ' existit quod the Defendant 27 die Januarii in such a year vi armis c. So the Fact is laid after the Indictment which was exhibited against the Defendant at the Michaelmas Sessions and the Fact is laid to be in January following in the same year But the Attorny General said this was only a Misprision of the Clerk in titling the Record viz. in the Memorandum 8 Co. 156. 4 H. 6.16 10 Ass 26. Cro. Car. 144. and there was no fault in the Body of the Information and that it was amendable at the Common Law He cited some Cases to prove where amendments have been in the Cases of Subjects of greater Mistakes than here a fortiori it ought to be amended in the King's Case 'T is not only amendable at the Common Law 4 H. 6. c. 3. 8 H. 6. c. 12. Jones 421. but by several Statutes which extend to all Misprisions of Clerks except Treason Felony and Outlawry wherefore this mistake of Quinden ' Martini was amended and made Quinden ' Hillarii Rex versus Sellars THE Defendant was indicted at the Sessions in London for not attending at the Wardmote Inquest being chosen of the Iury for such a year Indictment quashed To this Indictment he pleaded the King's Grant to the Company of Cooks of which he was a Member by which Grant that Company is exempted from being put or summoned upon a Iury or Inquest before the Mayor or Sheriffs or Coroner of London c. And upon a Demurrer the Question was whether the Cooks are discharged by this Grant from their Attendance at the said Wardmote Inquest And for the King it was argued that they are not discharged Before the Iudgment upon the Quo Warranto brought against the City of London these Courts there were like the Hundred Courts in the County for as these were derived out of the County 4 Inst 249. so those were derived from the Lord Mayor's Court which is a Court of Record and erected for the better Government of the City and the Aldermen of every Ward had right to hold Leets there 1. But now the words of this Grant do not extend to this Case for the Cooks are thereby discharged only from being of a Iury before the Mayor Sheriffs or Coroner c. but the Court of Wardmote is held before neither for 't is held before the Alderman of the Ward 2. Dyer 269. The words in this Grant ought to be taken strictly viz. that Cooks shall be exempted if there be other sufficient Men in the Ward to serve besides and if this doth not appear the Grant is void but this is not alledged E contra E
Trust as in the Case of Wardship formerly which always went to the Executor of the Grantee and which was of greater consideration in the Law than the feeding or clothing of an Ideot and of that Opinion was the Court that the King had a good Title to dispose of both the Ward and the Ideot one till he was of Age and the other during his Ideocy Iudgment for the Defendant DE Term. Sanctae Trin. Anno 36 Car. II. in Banco Regis 1684. Reeves versus Winnington THE Testator was a Citizen and a Freeman of London A Devise of all his Estate passed a Fee and being seised in Fee of a Mesuage c. and likewise possessed of a considerable personal Estate made his Will in which there was this Clause viz. I hear that John Reeves is enquiring after my Death but I am resolved to give him nothing but what his Father hath given him by Will I give all my Estate to my Wife c. The Question was Whether by these words the Devisee had an Estate for Life or in Fee in the Mesuage It was argued that she had only an Estate for life because the Words All my Estate cannot be construed to pass a Fee for it doth not appear what Estate was intended and Words in a Will which go to disinherit an Heir must be plain and apparent A Devise was in these Words viz. Sid. 191. Bowman versus Milbank I give all to my Mother all to my Mother and it was adjudged that a Fee did not pass which is as strong a Case as this for by the word All it must be intended All that was in his power to give which is as comprehensive as if he had said All my Estate 'T is true Kerman and Johnson Stiles 281. 1 Rol. Abr. 834. Cro. Car. 447. it hath been adjudged that where a Man devised his whole Estate to his Wife paying his Debts and Legacies that the word Estate there passed a Fee because it was for the benefit of the Creditors there being not personal Assets sufficient to pay all the Debts But that is not found in this Case therefore the Word Estate being doubtful and which will admit of a double construction shall not be intended to pass a Fee Mr. E contra Pollexfen contra The first part of this Sentence consists in negative words and those which are subsequent explain the intention of the Testator viz. That John Reeves should take nothing by the Will The Word Estate doth comprehend the whole in which the Owner hath either an Interest or Property like a Release of all Actions which is a good discharge as well of real as personal Actions In common understanding it carries an interest in the Land and then 't is the same as if he had devised all his Fee-simple Estate In the Case of Bowman and Milbank it was adjudged that a Fee-simple did not pass by the Particle All because it was a Relative Word and had no Substantive joined with it and therefore it might have been intended All his Cattle All his Goods or All his personal Estate for which incertainty it was held void yet Iustice Twisden in that Case said that it was adjudged that if a Man promise to give half his Estate to his Daughter in Marriage that the Lands as well as the Goods are included The Testator devised all his Tenant-right Estate held of such a Manor 3 Keb. 245. Mod. Rep. 100. and this being found specially the Question was Whether any more passed than an Estate for Life because he did not mention what Estate he intended but it was held that the Devisee had a Fee-simple because the Words were as comprehensive as if he had devised all his Inheritance and by these Words a Fee-simple would pass Curia It plainly appears that the Testator intended nothing for John Reeves therefore he can take nothing by this Will and that the Devisee hath an Estate in Fee-simple for the Words All my Estate are sufficient to pass the same Rex versus Sir Thomas Armstrong Saturday June 14th THE Defendant was outlawed for High-Treason and being taken at Leyden in Holland was brought into England and being now at the Bar he desired that he might have leave of the Court to reverse the Outlawry and he tried by virtue of the Stature of Ed. 6. which Enacts 5 6 E. 6. cap. 11. That if the Party within one year after the Outlawry or Judgment thereupon shall yield himself to the Chief Justice of England and offer to traverse the Indictment upon which he was outlawed he shall be admitted to such Traverse and being acquitted shall be discharged of the Outlawry He alledged that it was not a year since he was outlawed and therefore desired the benefit of this Law But it was denied because he had not rendered himself according to the Statute but was apprehended and brought before the Chief Iustice Whereupon a Rule was made for his Execution at Tyburn which was done accordingly DE Term. Sancti Mich. Anno 36 Car. II. in Banco Regis 1684. Hebblethwaite versus Palmes Mich. 36 Car. II. in B. R. Rot. 448. AN Action on the Case was brought in the Common-Pleas Possession is a sufficient cause to maintain an Action against a wrong doer for diverting of a Watercourse The Declaration was That the Defendant Primo Augusti c. injuste malitiose did break down an ancient Damm upon the River Darwent by which he did divert magnam partem aquae ab antiquo solitu cursu erga molendinum ipsius quer c. ad dampnum c. The Defendant pleaded that before the said Breach made he was seised in Fee of an ancient Mill and of six Acres of Land adjoyning upon which the said Damm was erected time out of mind to turn the Water to his said Mill which Damm was always repaired and maintained by the Defendant and the Tenants of the said Land that his Mill was casually burnt and he not intending to Re-build it suffered the Damm to be broken down and converted the Timber to his own use being upon his own Soil prout ei bene licuit c. The Plaintiff replied that by the breaking of the Damm the Water was diverted from his Mill c. The Defendant rejoyned and justified his Plea and Traversed that the Mill of the Plaintiff was an ancient Mill. And upon a Demurrer to this Rejoynder Iudgment was given for the Plaintiff and a Writ of Error now brought to reverse that Iudgment and for the Defendant in the Action it was argued 1. That the Declaration is not good because the Plaintiff had not set forth that his Mill was an ancient Mill. 2. Because he had not entituled himself to the Watercourse 3. That the Plea was good in Bar to this Action because the Defendant had sufficiently justified having a Right to the Land upon which the Damm was erected and always repaired it As to the first Point it
sell them so that a Retorn could not be made to the Party distraining therefore it directs that the Sheriff shall take Pledges for returning the Beasts if a Return should be awarded which would be to little purpose if such Pledges were not liable upon the Retorn of Elongar Now as to the removing of the Pleint by Certiorari that makes the Case more strong in the Plaintiffs behalf because the Record it self una cum omnibus ea tangen is removed but by an Habeas Corpus the person is only removed and the Court hath thereby a Iurisdiction over his Cause which the inferior Court hath lost because it hath lost his Person 2. This Scire Facias is not brought too soon as hath been objected for 't is in vain to bring an Alias Pluries after the Sheriff had returned Elongat ' 't is like the common Case where a Scire Facias is brought against the Bail and Non est inventus is returned after which there never was an Alias or Pluries Capias And afterwards in Michaelmas-Term following Iudgment was given that the Pledges are liable Palmer versus Allicock BY the Statute of Distribution of Intestates Estates 't is provided 22 23 Car. 2. cap. 10. That in case there be no Wife then the Estate of the Husband dying intestate shall be distributed equally amongst the Children and if no Child then to the next of Kin of the Intestate in equal degree and to those who legally represent them A Man died intestate having no Wife at the time of his death and but one Child who was an Infant afterwards Administration was granted of the Fathers Estate durante minore aetate of the Child who died before the Age of seventeen Then Administration was granted by a peculiar to the next of Kin of the Infant and an Appeal was brought in the Arches by the next of Kin of the Father to revoke that Administration In a Prohibition the Question was Whether Administration de bonis non c. of the first Intestate shall be granted to the next of Kin of the Father or the Child Mr. Pollexfen argued this Term for the Plaintiff in the Prohibition viz. That the Statute gives a power to the Ordinary to take Bonds of such persons to whom Administration is committed the Forms of which Bonds are expressed in the Act and the Conditions are to make a true and perfect Inventory and to exhibit it into the Registry He hath also a power to distribute what remains after Debts Funeral Charges and Expences Thus the Law stands now Then as to the Case at the Barr three things are to be considered 1. If a Man dies intestate leaving two Sons and no Wife each hath a Moiety of his personal Estate immediately vested in him so that if one Brother should afterwards die intestate the other shall have the whole 2. If an Interest be vested in two then by this Statute the like Interest is vested in one so that if he die Intestate his Administrator shall have the Estate 3. If so then the consequence will be that in this case Administration de bonis non of the first Intestate shall go to the next of Kin of the Infant By Interest is meant a Right to sue for a share after Debts paid which Interest every person hath in a chose in action As if a Man doth covenant with two that they shall have such an Estate after Debts paid an Interest vests in them by this Covenant and if they die it goes to their Executors such also is the Interest of every Residuary Legatee Now if any of them die before the Residue can be distributed the Wife or Children of him so dying shall have it And to make this more clear it will be necessary to consider how the Law stood before the making of this Act. At the Common Law neither the Wife Child or next of Kin had any Right to a Share of the Intestates Estate but the Ordinary was to distribute it according to his Conscience to pious Vses and sometimes the Wife and Children might be amongst the number of those whom he appointed to receive it but the Law entrusted him with the sole disposition of it 2 Inst 399. Afterward by the Statute of Westm 13 E. 1. c. 19. 2. he was bound to pay the Intestate's Debts so far as he had Assets which at the Common Law he was not bound to do and an Action of Debt would then and not before Pl. Com. 277. Greisbrook versus Fox lie against him if he did alien the Goods and not pay the Debts Then the Statute of * 31 E. 1. c. 11. 31 E. 1. was made by which he was impowred to grant Admstration to the next of Kin and most lawful Friend of the Intestate 1 Inst 133. b. 2 Inst 397. 9 Co. Hensloes Case and by this Statute the person to whom Administration was committed might have an Action to recover the Intestate's Estate for at the Common Law he had no remedy But then afterwards the Statute of 21 H. 8. cap. 5. Enacts That the Ordinary shall grant Administration to the Widow or next of Kin of the person deceased or to both and this was the first Law which gave any Interest to the Wife to whom Administration being once granted the power of the Ordinary was determined Hob. 83. 1 Cro. 62 202. and he could not repeal it at his pleasure as he might at the Common Law But after the making of this Statute many mischiefs did still remain because the Administration being once committed the person to whom it was granted had the whole Estate and the rest of the Relations of the deceased were undone and therefore if his Children were under Age or beyond the Seas and a Stranger had got Administration it would have been a Bar to them And thus it continued many years the Ordinary still making distribution as he thought fit taking only a Bond from the person to whom he granted Administration for the purposes aforesaid and sometimes to dispose the Surplus after Debts and Legacies as he should direct and no Prohibition was granted to remedy these inconveniences till about the 12th year of King James the First Hob. 83. But now by this Act a good remedy is provided against these mischiefs and 't is such which takes away the Causes thereof which is that the Administrator shall not have the whole Estate but that a Distribution shall be made The Title of the Act shews the meaning thereof to be for the better Settlement of Intestates Estates and the Body of it shews how Distribution shall be made so that such Bonds which were usually given by the Administrator before this Law to make Distribution as the Ordinary should direct are now taken away and other Forms are prescribed and there can be no remedy taken upon such new Bonds till the Ordinary hath appointed the Distribution so that in effect this Act makes the Will
the Common Law for a false Oath made by any Witness and therefore an Action will not lye for a scandalous Affidavit Adjornatur Anonymus NOta An Action of Assault and Battery Release of one Def. shall not discharge the rest of a personal thing and false imprisonment was brought against four Defendants the Plaintiff had Iudgment and they brought a Writ of Error The Plaintiff in the Action pleaded the Release of one of them and to this Plea all four jointly demur The Opinion of the Court was that Iudgment might be given severally for they being compelled by Law to join in a Writ of Error the release of one shall not discharge the rest of a personal thing But where divers are to recover in the personalty 6 Co. Ruddock's Case the Release of one is a Bar to all but it is not so in point of discharge If two Coparceners make a Lease of a House and the Rent is in arrear and one of them brings the Action and recovers the Iudgment shall be arrested because one alone hath recovered in Debt for a moiety when both ought to join But it is agreed that if one Tenant in Common make a Lease rendring Rent which afterwards is in arrear Litt. Sect. 316. they must join in an Action of Debt because it savours of the Personalty But 't is otherwise in case of the Realty DE Term. Sanct. Trin. Anno 2 Jac. II. in Banco Regis 1686. Herbert Chief Justice Wythens Justices Holloway Justices Wright Justices Sawyer Attorny General Powis Sollicitor General Aldridge versus Duke ASsault Trespass continued many years and the Statute of Limitations pleaded the Jury gives Damages only for the last six years Battery Wounding and Imprisoning of him from the 10th of August 24 Car. 2. usque exhibitionem Billae The Defendant pleaded not Guilty infra sex infra Annos The Plaintiff replied that the Writ was sued out 2 Octobris 1 Jacobi 2. And that the Defendant was Guilty within six years next before the Writ brought Vpon this Issue was joyned and a Verdict was given for the Plaintiff and entire damages given Mr. Pollexfen moved two Exceptions in Arrest of Iudgment 1. That a Verdict cannot help what appears to be otherwise upon the face of the Record Now here the Plaintiff declared that he was imprisoned the 10th of August 24 Car. 2. which is 13 years since and being one entire Trespass the Issue is found as laid in the Declaration which cannot be for so many years between the cause of Action and bringing of the Writ for if a Trespass be continued several years the Plaintiff must sue only for the last six years for which he hath a compleat cause of Action but when those are expired he is barred by the Statute When the Plaintiff hath any cause of Action Sid. 25. then the Statute of Limitations begins as in an Action on the Case for words if they are actionable in themselves without alledging special damages the Plaintiff will recover Damages from the time of the speaking and not according to what loss may follow So in Trover and Conversion when there is a cause of Action vested and the Goods continue in the same possession for seven years afterwards in such case 't is the first conversion which entitles the Plaintiff to an Action So in the Case at Bar tho' this be a continued imprisonment yet so much as was before the Writ brought is barred by the Statute Thompson contra The Verdict is good for the Iury reject the beginning of the trespass and give Damages only for that which falls within the six years and this may be done because 't is laid usque exhibitionem Billae If the Defendant had pleaded not Guilty generally Cro. Car. 160 381 404. then Damages must be for the 13 years though the Plaintiff of his own shewing had brought his Action for a thing done beyond the time limited by the Statute but having pleaded not Guilty at any time within six years if the Verdict find him guilty within that time 't is against him As to the Objection that the Cause of Action ariseth beyond six years tho' it doth appear so in the Declaration yet that doth not exclude the Plaintiff for there might have been Process out before or he might be disabled by an Outlawry which may be now reversed or he might be in Prison and newly discharged from which time he hath six years to begin his Action for being under either of these circumstances the Statute doth not hurt him Curia If an Action of false Imprisonment be brought for seven years and the Jury find the Defendant guilty but for two days 't is a Trespass within the Declaration This Statute relates to a distinct and not to a continued Act for after six years it will be difficult to prove a Trespass many accidents may happen within that time as the death or removal of Witnesses c. Iudgment was given for the Plaintiff Dobson versus Thornistone THE Plaintiff was a Husbandman Words spoken of a Farmer actionable who brought an Action against the Defendant for these words He owes more mony than he is worth he is run away and is broke He had a Verdict and it was moved now in Arrest of Iudgment that the Words being spoken of a Farmer are not actionable To say that a Gentleman is a Cozener Hill 28 Eliz. B.R. Godb. 40. a Bankrupt and hath got an Occupation to deceive Men though he used to Buy and Sell yet being no Merchant 't was the better Opinion of the Court that the Words were not actionable So to say of a Farmer Stiles 420. that he is a Whoreson Bankrupt Rogue and it not appearing that he got his living by Buying and Selling or that the Words were spoken of him relating to his Occupation 't is not actionable For it must not only appear that the Plaintiff hath a Trade Sid. 299. Hutt 50. but that he gets his Living by it otherwise the Words spoken of him will not bear an Action But the Court held the Words to be actionable the like Iudgment was given in the Case of a Carpenter Mich. 3 Jac. for Words Viz. He is broke and run away Anonymus NOta Misentry of a Writ of Enquiry amendable without paying Costs Iudgment was given upon a Demurrer and a Writ of Enquiry was awarded and in the Entry thereof upon the Roll the Words per Sacramenum duodecim proborum legalium hominum were left out and now the Question was Whether it shall be amended It was said that a Capiatur for a Misericordia shall be amended upon the new Statute of Jeofails after a Verdict but whether upon a Demurrer it was doubted In a Quo Warranto Iudgment was entred by disclaimer Cro. Car. 184. by the consent of all Parties and the Words virtute praetextu literarum patentium geren dat 17 Jacobi were wrote in the Margin of the
Commitment and that for two reasons 1. Because the persons committing had not any Authority so to do for upon the Return it appears that they were committed by several Lords of the Council whereas it should have been by so many Lords in Council or by Order of Council 2. They ought not to be committed for this Fact which is only a Misdemeanour The Bishops are Peers and therefore the Process ought to be a Summons by way of Subpoena out of the Crown Office and not to commit them the first time If a Man comes in voluntarily he cannot be charged with an Information neither can a person who is found in Court by any Process be so charged if it be illegal as if a Peer be committed by Capias Iustice Allybon replyed that when a Commitment was made by the Lord Chief Iustice of this Court his Name is to the Warrant but not his Office 't is not said Committitur per Capitalem Justiciarium Angliae c. for he is known to be so and why should not a Commitment by such persons Dominos Concilij be as good as a Commitment by Sir Rob. Wright Capitalem Justiciarium That it was enough for the Officer to return his Warrant and when that is done the Court will presume that the Commitment was by the Power which the Lords in Council had and not by that Power which they had not To which it was answered by Mr. Finch that the Lord Chief Iustice always carries an Authority with him to commit where-ever he goes in England but the Lords of the Privy Council have not so large a Power for though they be Lords of the Council always yet they do not always act in Council Then the Statute of 17 Car. 1. cap. 10. was read in which there is mention made of a Commitment by the Lords of the Privy Concil c. But it was answered that that Statute was to relieve against illegal Commitments and those enumerated in that Act were such only and none else And it was strongly insisted that Peers of the Realm cannot be committed at the first instance for a Misdemeanour before Iudgment and that no President can be shewed where a Peer hath been brought in by Capias which is the first Process for a bare Misdemeanour The constant Proceedings in the Starr-Chamber upon such Informations were Crompt Jurisdiction 33. Dyer 315. 4 Inst 25. Regist 287. viz. First the Lord Chancellor sent a Letter to the person then if he did not appear an Attachment went forth The Kings Council answered Sir Baptist Hick's Case Hob. that a Peer may be committed for the Breach of the Peace for which Sureties are to be given and can there be any greater Breach of the Peace than a Libel against the King and Government 'T is certainly such a Breach of the Peace for which Sureties ought to be demanded for where there is any seditious Act there must be a Breach of the Peace and if Sureties are not given then the person must be committed The Objections were over-ruled by three Iudges Then the Information was read which in Substance was viz. That the King by vertue of his Prerogative did on the 4th day of April in the third year of his Reign publish his gracious Declaration for Liberty of Conscience which was set forth in haec verba That afterwards viz. 27 Aprilis in the fourth year of his Reign the King did publish another Declaration reciting the former in which he expressed his care that the Indulgence by him granted might be preserved c. that he caused this last Declaration to be printed and to manifest his favour more signally towards his Subjects on the 4th day of May 1688. it was Ordered in Council that his Declaration dated the 27th day of April last be read on two several days in all Churches and Chappels in the Kingdom and that the Bishops cause the same to be distributed through their several Diocesses c. That after the making of the said Order c. the Bishops naming them did consult and conspire amongst themselves to lessen the Authority and Prerogative of the King and to elude the said Order and in further prosecution of their said Conspiracy they with Force and Arms did on the 18th day of May c. unlawfully maliciously c. frame compose and write a Libel of the King subscribed by them which they caused to be published under the pretence of a Petition Then the Petition was set forth in haec verba In contemptum dicti Domini Regis c. The King's Council moved that the Defendants might plead instanter for so they said is the course of the Court when a Man is brought thither in Custody or appears upon Recognizance But the Council on the other side prayed an Imparlance and a Copy of the Information and argued that the Defendants ought not to plead instanter because their Plea ought to be put in Writing and that they ought to have time to consider what to plead that it was impossible to make any Defence when they did not know the Accusation and that the Practice of the Court anciently was with them 'T is true when a Subpoena is taken out and the Party doth not appear but is brought in by Capias he shall plead instanter and the reason is because he hath given delay to the Cause So 't is likewise in Cases of Felony or Treason but not to an Information for a Misdemeanour Then the Clerk of the Crown informed the Court that it was the Course to plead instanter in these following Cases viz. when the person appears upon a Recognizance or in propria persona or is a Prisoner in Custody upon any Information for a Misdemeanour where no Process issued out to call him in As to the Objection that the Defendants cannot make any Defence without a Copy of the Information the Vsage is otherwise even in Cases where a Man's Life is concerned and what greater difficulty can there be to defend an Accusation for a Misdemeanour than a Charge for High-Treason certainiy the Defendants all know whether they are innocent or not These Points being over-ruled by the Court the Archbishop offered a Plea in writing the Substance of which was that they naming all the Defendants were Peers of Parliament and ought not to be compelled to answer this Misdemeanour immediately but they ought to appear upon due Process of Law and upon their Appearance to have a Copy of the Information and afterwards to imparle and because they were not brought in by Process they pray the Iudgment of the Court. This Plea was offered to the end that what was denied before upon a Motion might be settled by the Opinion of the Court but it was over ruled Then they pleaded severally Not-Guilty and were tried at the Barr a Fortnight afterwards by a Middlesex Iury and acquitted Anonymus In the Common-Pleas AN Action of Debt was brought upon a Bond against the Defendant
Occupant and let the Land to the Plaintiff until c. Et hoc paratus est verificare The Defendant demurred to this Replication and had Iudgment The Matter now in Debate was upon Exceptions to the Barr. 1. For want of a Traverse that Sir Peter Werburton was seised in Fee at the time of the taking c. 2. For want of a sufficient Title alledged in the Plaintiff for that by the Statue of Frauds all Occupancy is now taken away It was argued that the Replication was good without a Traverse Co. Ent. 504. for where the Plaintiff hath confessed and avoided as he hath done here if he had traversed likewise that would have made his Replication double He confesseth that Sir P. W. was seised in Fee of the Mannor but afterwards the Seisin was expresly alledged to be in Sir George the Father and that the place where was parcel thereof which is a Confession and an Avoidance The Avowant should have traversed this Lease but the Traverse of the Plaintiff upon him had made it a worse Issue Agreeable to this Case in reason is that which was adjudged in this Court in Michaelmas-Term 10 Car. 1. It was in Trespass Cro. Car. 384. the Defendant pleaded that the locus in quo was the sole Freehold of John c. and justified by his Command The Plaintiff replyed that the Land was parcel of the Mannor of Abbots Anne and that W. was seised in Fee and levied a Fine to the use of himself and Wife for their Lives the Remainder to E. for 100 years if he lived so long who after the death of the Cognizors entred and made a Lease to the Plaintiff And upon a Demurrer to this Replication the same Exception was then taken as now viz. that the Plaintiff did not confess and avoid the Freehold of John but the Plaintiff had Iudgment for the Barr being at large and the Title in the Replication being likewise so too the Plaintiff may claim by a Lease for years without answering the Freehold The not concluding with a Traverse is but a form and the Court will proceed according to the Right of the Cause without such form 27 Eliz. c. 5. 't is a defect which after a Ioinder in Demurrer is expresly helped by the Statute of Ieofails which enables the Court to amend defects and want of Forms other than such for which the party hath demurred The Case of Edwards and Woodden is in point Cro. Car. 323. 6 Co. Heyley 's Case Dyer 171. b. 1 Leon. 77 78. contra it was in Replevin the Defendant made Cognizance as Bailiff to Cotton for that the place where c. was so many Acres parcel of a Mannor c. that Bing was seised thereof in Fee who granted a Rent Charge out of it to Sir Robert Heath in Fee who sold it to Cotton c. The Plaintiff in Barr to the Conusance replied and confessed that the Land was parcel of the Mannor c. and that Bing was seised in Fee prout c. and granted the Rent to Sir R. H. but that long before the Seisin of Bing c. one Leigh was seised thereof in Fee who devised it to Blunt for a Term of years which Term by several Assignments came to Claxton who gave the Plaintiff leave to put in his Cattel c. And upon a Demurrer to this Replication an Exception was taken to it for that the Plaintiff did not shew how the Seisin and Grant of Bing to Sir R. H. was avoided for having confessed a Seisin in Fee prout c. that shall be intended a Fee in possession and notwithstanding he had afterwards set forth a Lease for years in Leigh by whom it was devised to Blunt c. and so to Claxton it may be intended that the Grantor was only seised in Fee of the Reversion and therefore the Plaintiff ought to have traversed the Seisin aliter vel alio modo But three Iudges seemed to encline that the Replication was good and that the Plaintiff had well confessed and avoided that Seisin in Fee which was alledged by the Defendant for he had shewed a Lease for years precedent to the Defendants Title and which was not chargeable with the Rent and his pleading that the Grantor Bing was seised in Fee must be only of a Reversion expectant upon that Lease But if his Confession that Being was seised in Fee prout c. shall be intended a Seisin in Fee in possession yet the Replication is good in substance because the Charge against the Plaintiff is avoided by a former Estate and in such Case 't is not necessary to take a Traverse But after all it was held that if it be a defect 't is but want of a Form which is aided by the Statute and that is this very Case now in question The want of a Traverse seldom makes a Plea ill in substance but a naughty Traverse often makes it so because the adversary is tied up to that which is material in it self so that he cannot answer what is proper and material and therefore in Ejectment upon a Lease made by E. I. Yelv. 151. Bedel versus Lull the Defendant pleaded that before E. I. had any thing to do c. M. I. was seised in Fee after whose death the Land descended to his Heir and that E. entred and was seized by Abatement The Plaintiff replied and confessed the Seisin of M. but saith that he devised it in Fee to E. I. who entred absque hoc that E. I. was seized by Abatement and upon a Demurrer this was held to be an ill Traverse for the Plaintiff had confessed the Seisin of M. and avoided it by the Devise and therefore ought not to have traversed the Abatement for having derived a good Title by the Devise to his Lessor 't is an Argument that he entred lawfully and it was that alone which was issuable and not the Abatement therefore it was ill to traverse that because it must never be taken but where the thing traversed is issuable Then it was said that the Conusance was informal because the Avowant should have said that the Locus in quo c. contains so many Acres of Ground c. he only saith that it was parcel of a Mannor besides he neither prays Damages nor Retorn ' Habend ' 2. As to the 2d Point it was said that the Statute of Frauds doth not take away all Occupancy it only appoints who shall be a special Occupant Besides here is a Title within the Statute for a Lease for Lives is personal Assets so is a Term in the Hands of an Executor de son tort and in this Case the entring of one Brother after the death of the other made him an Executor de son tort More 126. Sid. 7. and it was never yet doubted but that there may be such an Executor of a Term. Whereupon it was concluded that the Barr was good both as to the Form
An Administrator pleaded a Judgment in Bar to an Action of Debt for 100 l. brought against him and that he had not Assets praeterquam bona non attingen to 5 l. but did not shew the certain value of the Goods and yet held good ibid. 3. A Judgment upon a simple Contract may be pleaded in Barr to an Action of Debt upon a Bond 115 4. A Possession where 't is only an Inducement to a Plea and not Substance the Defendant may justifie upon such a possession against a Wrong-doer 132 5. Where a special Justification is to an Action of Assault and false Imprisonment the cause of Commitment must be set forth in the Plea 160 6. Where the defence consists in matter of Law the Defendant may plead specially but when 't is Fact he must plead the geneal Issue 166 7. Where special matter which might be given in Evidence at the Trial and which amounts to no more than the general Issue may be pleaded ibid. 8. When a Man is brought into Court by Capias he ought to plead instanter because he hath given delay to the Court 215 9. So where he appears upon Recognizance or in propria persona or is in Custody for any Misdemeanour he ought to plead instanter ibid. 10. In Covenant to pay so much Mony to the Plaintiff or his Assigns as should be drawn upon the Defendant by Bill of Exchange he pleaded that the Plaintiff secundum legem mercatoriam did assign the Mony to be paid c. it ought to have been secundum consuetudinem mercatoriam 226 227 11. If an Action is brought against an Inn-keeper or Common Carrier the Declaration must be secundum legem consuetudinem Angliae 227 12. In Trespass the Plaintiff prescribed as to the Freehold and alledged a Custom in the Copyholders to have solam separalem pasturam c. whether he could make a joynt Title in the same Declaration by virtue of a prescription and Custom 250 13. If the Plea is double the Plaintiff ought to demurr 251 14. The Condition of a Bond was to acquit discharge and save harmless Non damnificatus generally is not a good Plea without shewing how acquitted and discharged 252 15. Mutuatus for 400 l. the Defendant pleaded an Attainder of Treason in Abatement the Plaintiff replied that after the Attainder and before the Action he was pardoned c. and concludes unde petit Judicium dampna sua for this cause Replication was held ill 281 Pledges See Replevin Replevin in an inferior Court by Pleint removed in B. R. the Plaintiff was nonsuited and a Sci. Fac. brought against his Pledges and held good 58 2. There are no Pledges of Returno Habend ' at the Common Law the Sheriff was not obliged to take Pledges in a Replevin by Plaint 75 Poor A Man had 5 l. to remove out of one Parish into another who gave Bond to repay it if he returned within forty days he stayed there so long and it was held a good Settlement 67 2. A Note in writing must now be left pursuant to the Statute to make a Settlement 247 Possession 'T is sufficient to maintain an Action against a Wrong-doer 48 Prerogative Whether a Lease was made pursuant to a Power in a Proviso to make Leases for three Lives or 21 years or for any Term upon three Lives the Lease made was for 99 years determinable upon three Lives 268 269 Power In granting of Letters Patents of the sole printing exclusive of all others 76 129 2. Where no individual person can claim a Right or Property it must be vested in the King by Law 76 3. Whether the King hath a Prerogative to restrain Trade to a particular number of Men in particular places 127 4. He may command his Subjects to return out of a Foreign Nation ibid. 5. He may regulate Trade by Letters Patents Prescription See Common 2. Pleading 12. For a way he may set forth his Estate without shewing how he came by it 52 2. Where it cannot be by a Que Estate to have Retorna Brevium 200 3. Where it may be to hold Pleas Leets and Hundreds without matter of Record 201 4. For all the Tenants of a Mannor to fowl in a Free Warren this Prescription is not too large it might not be good upon a Demurrer but 't is otherwise after a Verdict 246 5. For a Profit apprender in alieno solo the Tenants of a Mannor may prescribe by a Que estate exclusive of the Lord ibid. 6. There must be a certain and permanent Interest abiding in some person to maintain a Prescription and therefore it will not lie ratione commorantiae 290 7. To have Common sans numbre is good but ad libitum suum which is almost the same thing is void ibid. 8. It may be joyned with a Custom in the same Declaration 251 9. Where 't is laid in a discharge as to be exempted from Toll or for an easment as for a Way to a Church not only a particular person but the Inhabitants of a whole Vill may prescribe but where it relates to the Profit or Interest in the Land it self 't is not so 292 Presentment In a Court Leet which concerns the person and not the Freehold whether traversable 137 138 Privity of Contract See Local Action 4. Action against an Administratrix of a Term for Rent incurred after the Assignment of the Lease the Privity of Contract of the Intestate was not determined by his death but Administratrix shall be charged with his Contracts as long as she hath Assets 326 'T is not gone either by an Assignment of the Term or death of the Lessor neither is it transferred to the Assignee by the Statute of H. 8. for that Statute only annexeth such Covenants which concern the Land with the Reversion 337 338 Proof See Prohibition Prohibition Not to be granted because a Temporal Loss may ensue 67 2. Where some words are actionable at Law and some punishable in the Spiritual Court a Prohibition shall be granted for otherwise it would be a double vexation 74 3. Libel causa jactationis maritagii the Suggestion for a Prohibition was that he was indicted at the Old Bayly for marrying two Wives that he was convicted in a Court of that Offence which had a proper Jurisdiction c. and a Prohibition was granted 164 4. A person lived in one Diocess and occupied Lands in another where he was taxed towards the finding of Bells for that Church for which a Suit was commenced in the Bishop's Court where the Lands were and he suggested the Statute of H. 8. that no Man shall be cited out of his Diocess except for some Spiritual Cause neglected to be done there and a Prohibition was granted for this was not a Spiritual Cause neglected to be done because Church Ornaments are a personal Charge upon the Inhabitants and not upon the Land Owners who dwell else where but the repairing of the Church is a real Charge upon
the Land 211 5. Not granted for Mariners Wages 244 6. Libel for a Tax upon the Parishioners for not repairing of their Church who suggest that they had a Chappel of Ease in the same Parish the Prohibition was denied for of common right they ought to repair the Mother Church 264 7. Proof of Matter of Fact by one Witness denied to be allowed in the Spiritual Court is a good cause for a Prohibition 284 8. Where the Release of a Legacy offered to be proved by one Witness was denied in the Spiritual Court ibid. 9. Proof of Payment or Subtraction of Tythes denied and a Prohibition granted ibid. 10. Whether a Prohibition ought to be allowed after Sentence an Appeal being then the more proper remedy 284 Property See Interest Q. Quorum MUst be one Justice of the Peace of the Quorum otherwise cannot be a Sessions 14 152 Quantum meruit Will lie for Rent reserved upon a real Contract where the Sum is not certain but if a Sum in gross is reserved then Debt must be brought 73 R. Record ERror shall not be assigned against the Essence of a Record 141 Recovery Common Reversed without a Scire Facias to the Tertenants but it seems not to be good 119 2. For there must be a Scire Facias against the Heir and Tertenants when a Writ of Error is brought to reverse it 274 Relation Where an Estate shall pass by Relation where not 299 300 Release Of a Legacy by one Executor and also of all Actions Suits and Demands whatsoever those general words which follow are tied up to the Legacy and release nothing else 277 2. Of a Demand will not discharge a growing Rent 278 3. A Receipt was given for 10 l. in which there was a Release of all Actions Debts Duties and Demands nothing is released but the 10 l. 277 4. Judgment against four Defendants who all joyned in a Writ of Error and the Plaintiff pleaded a Release of Errors by one it shall not discharge the rest of a personal thing but if there had been four Plaintiffs to recover the Release or death of one is a Barr to all 109 135 249 5. A Release of all Actions will discharge an Award of Execution upon a Scieri Facias 185 187 6. Of all Actions and Demands doth not discharge a Legacy it must be by particular words 279 7. One of the Defendants who made Conusance released the Plaintiff after the taking of the Cattle this was held void upon a Demurrer for he had no Demand or Suit against the Plaintiff having distrained in the right of another ibid. Remainder See Entry 3. Fines levied 4. Must take place eo instanti the particular Estate is determined or else it can never arise 309 2. By the Conveyance of the Reversion in Fee to him who had the Estate for Life before the Birth of a Son the particular Estate is merged and all contingent Remainders are thereby destroyed 311 Replevin Where 't is brought by Writ the Sheriff cannot make deliverance without the taking of Pledges de prosequendo retorn ' Habend ' 35 Replication Where the Plaintiff confesseth and avoideth he ought not to traverse for that would make his Replication double 318 Request When a thing is to be done upon Request the time when the person requires it to be done is the time of the performance 295 Reservation Of a Rent upon a Lease for three years payable at Michaelmas and Lady-Day Debt was brought for 2 years without shewing at which of the Feasts it was due 't is good after Verdict but ill upon a Demurrer 70 Resignation See Abeiance To the Ordinary and Patron presented 'ts void if the Ordinary did not accept the Resignation 297 Reversion See Bargain and Sale Surrender 2. Tenant in Tail who had likewise the Reversion in Fee if he acknowledge a Judgment the Reversion may be extended 256 2. But a Reversion in Fee expectant upon an Estate Tail is not Assets until it comes into possession 257 3. By what words a Reversion in Fee passeth in a Will 228 Revocation A Will shall not be revoked by doubtful words 206 2. It might be revoked by Word without Writing before the Statute of Frauds 207 3. Before that Statute a Will might be revoked by a subsequent Will which was void in it self yet good to revoke the former 207 218 4. A subsequent Will which doth not appear shall not be any Revocation of a written Will which doth appear 204 205 206 5. Whether a subsequent Will which is void in it self may revoke another since the Statute of Frauds 218 6. Such a Will must be good in all circumstances to revoke a former 260 261 Riot See Information Robbery The Hundred was sued and it did not appear that the Parish where the Fact was laid to be done was in the Hundred or that it was done upon the High way or in the day time this was helped after Verdict 258 2. A Servant delivered Mony to a Quaker to carry home for his Master they were both robbed viz. the Servant of 26 s. and the Quaker of 106 l. the Servant made Oath of the Robbery and the Quaker refused the Master brought the Action it doth not lie for him 287 288 S. Scire Facias See Bail 3 4. Baron and Feme 1 4 5. Iudgment 2. Pledges 1. Recovery MUst be to the Tertenants before the Common Recovery shall be reversed by Writ of Error 119 2. Scieri Facias quare Executionem non habet recites the first Judgment but prays no new thing only to have Execution upon that Judgment 187 3. 'T is not an original but a judicial Writ and depends upon the first Judgment 187 4. 'T is suspended by Writ of Error and if the original Judgment is reversed that is so also ibid. 5. Debt will lie upon a Judgment had on a Scire Facias 188 189 6. A Judgment upon a Scire Facias is a distinct Action from the original cause 189 7. Judgment in Dower and a Writ of Enquiry of Damages the Woman marries and dies before the Writ of Enquiry executed the Husband administred and brought a Scire Facias upon the Judgment whether it lieth or not 281 Serjeants at Law See Iudges Surplusage See Inquisition Steward See Court Supersedeas See Parliament Surrender See Assent 1 2. Where it may be pleaded without an acceptance 297 2. No man can take it but he who hath the immediate Reversion 299 3. If pleaded without an Acceptance 't is aided after Verdict which shews 'tis no Substance 301 4. By one Non compos mentis 't is void ab initio 303 T. Tail DEvise to D. for Life the Remainder to her first Son and the Heirs of the Body of such first Son endorsed thus viz. Memorandum that D. shall not alien from the Heirs Males of her Body she had a Son who had Issue a Daughter 't is not an Estate Tail Male for the Memorandum shall not alter the Limitation in the Will
computation of the price of Provisions and other Necessaries in 2 H. 5. and how they encreased in Value from that time till the Queen's Reign it may be reasonably affirmed that 40 s. per Annum about the time when that King lived would bear an equal proportion to 40 l. a year in her Reign and if so it may as reasonably be said that 4 l. per Annum in her days would almost bear the like proportion to 80 l. per annum now because of the vast encrease of Riches by Commerce and otherwise in this last Age and such an Estate doth now qualifie a Man to be of the Grand Jury The 40 s. per annum in King H's Reign was esteemed a sufficient Estate to supply all the common Necessities of Life Wheat being then sold for 12 d. per Quarter and good Gascoign Wine for 40 s. per Tun. It was an Age when 20 Marks per Annum was a very good Allowance to maintain a Student at the Inns of Court but too great a Charge for a Commoner to bear and therefore the Lord Chancellor Fortescue tells us that none but the Sons of Noblemen in Hospitiis illis Leges addiscebant The Jurors in those days were all Knights but are now mean and illiterate persons for 't is a very poor Estate which qualifies them for that Service How can Matters of Fact which often require great Examination be tryed by Men of such narrow Capacities which are generally found amongst Men of 10 l. per Annum for so it will be so long as the Degrees of Fortune make such a vast inequality amongst us Experience teacheth us that Men of such low Fortunes and whose Education is generally amongst the Beasts of the Plow have not the same sense of Honour and Vertue with Men of more elevated Qualities and Conversation there must be danger of Subornation and Perjury among such Jurors And what will the villanous Judgment in Attaint signifie I mean in respect to their Estates viz. That their Goods be confiscate their Lands and Possessions seised into the King's Hands their Houses demolished their Woods felled and their Meadows plowed This is a very dreadful Sentence to a Man of a good Estate which by the very Form of this old Judgment every Juror was supposed to have but 't is an empty sound to a Man of 10 l. per Annum who cannot have all those Possessions and but a very small proportion of either It may be therefore thought necessary that a farther Provision be made that none should be impanelled to try such Issues but Men of 40 l. per Annum or at least such as like the Jurors in Attaint qui multa majora habent Patrimonia than what will qualifie a Petty Juror at this day Gentlemen The following Collection is the Product of your Labours It was borrowed from you at the Bar and 't is but just to restore it I know Men have generally very faint Inclinations to approve any Writings beside their own and seldom declare in favour of a Book till they hear what success it has in the World and even then are biassed by the Multitude who very often condemn without reading or read without Understanding I have heard it often objected though I am still to learn upon what accompt that we have too many Printed Books of the Law already and that it was more certain and intelligible when fewer Volumes of it were published I must confess some of the late Reports are collected with very little Judgment But still there is a necessity of new Books tho' not of such for I would feign know how any Lawyer can now be able to advise his Client with the help and direction only of the Old Books 'T is true we have but few of them but 't is because in former Ages all Causes where the thing in demand did not exceed 40 s. were tried either in the County Court in the Hundred Court or in the Court Baron of the Mannor In those days the great Courts of Record at Westminster were not so full of Suitors as now When Bracton wrote the Justices in Eyre who had the same Power with our Justices of Assise went their Circuits but once in seven years and a long time afterwards even in the Reign of King Henry the Eighth the Judges would often rise from the Bench in Term-time without hearing a Motion or trying of a Cause and I think the Practice did not much encrease till this last Age for Anno 10 Eliz. there was but one Serjeant at the Common-Pleas Barr for a whole Term together and that was Serjeant Bendloes and I do not read that he had any Business there Nay at that time the Court of Chancery had no greater share of Practice than the Courts of the Common Law for in the two and twentieth Year of King Henry the Eighth Sir Thomas Moor being then Lord Chancellor did usually read all the Bills which were exhibited into that Court but Business is now so much encreased that all the Council can scarce find time enough to read the Briefs of such Bills which are filed every Term. But the Law hath now its Residence in Westminster-Hall most Causes of Value are there determined and the great Number of Country Attornies in our days who according to my Lord Coke's Opinion by dayly multiplying Suits have so wonderfully encreased the Business of those Courts that it seems very necessary that the judicial determinations there should by new Books be transmitted to future Ages And though some Cases in this Collection which were adjudged in the late Reign may not have the Authority of Presidents because they taste a little of the Times wherein the Administration of Justice was not so nicely regarded as the Dispensation of such things which were then thought Political Rights yet the Reader will find some good Arguments of Learned Men then at the Bar who endeavoured to support our sinking Laws I do acknowledge that if Men were just honest and impartial to themselves and others there would be no occasion for Books of this nature and because they are not so I will not make an Apology for the Publishing of this I think the Book being done with so much Care may be of good use to the Professors of the Law but submit it to your Judgments I confess I am led by my Profession to Affairs of this nature though my Circumstances disingage me from the suspicion of being an Author Vale. A TABLE OF THE CASES Contained in the THIRD PART OF Modern Reports A. ALdridge versus Duke 110 Ashcomb versus Inhabitants Hundred de Eltham 287 Ayres versus Huntington 251 B. BAxter's Case 68 Baldwyn versus Flower 120 Ball versus Cock 140 Barker Mil ' versus Damer 336 Barnes versus Eggard 39 Beak versus Tyrrwhite 194 Banson versus Offley 121 Bishops their Case 212 Bisse versus Harcoutt 281 Blaxton versus Stone 123 Boyle versus Boyle 164 Boson versus Sandford 321 Bowyer versus Lenthal 190
quam ad illud facere debet solet And it was the Opinion of a * Justice Doderidge in Surry and Piggots Case Pop. 171.27 Assise placito 8. Br. Prescription 49. Rast Entr. 441 Tit. Nusance learned Iudge that the words currere consuevit solebat did supply a Prescription or Custom Thus it was in an Assise of Nusance wherein the Plaintiff set forth that he had a Fountain of Water currentem usque ad rotam molendini c. and that the Defendant divertit cursum aquae and this was held good The Cases of stopping up of Lights and diverting of Water-courses are not parallel the Prescription to Lights must be ratione loci and therefore if a Man will erect a new House and a Stranger will stop the Lights 't is an injury done and the Action may be maintained upon the Possession Lutterel 's Case was grounded upon the Possession for upon the Plaintiff Cottell 's own shewing the Prescription was gone because he set forth that he had pulled down the old Mills and that the Defendant Lutterel diverted the Water from running to those Mills which the Plaintiff newly built All which prove that a Prescription goes to the Right but a possession is sufficient to support an Action against a Tort-fesor Lastly Slackman vers West Palmer 387. 2 Cro. 673. in the Case of a Common or a Rent which cannot pass without Deed if the Plaintiff shews a Que Estate he must produce the Deed by which it was granted but where he prescribes for a Way he may set forth his Estate without shewing how he came by it because 't is but a Conveyance to the Action which is grounded upon the disturbance done to the Possession Cur. The word solet implies Antiquity and will amount to a Prescription and solitus cursus aquae running to a Mill makes the Mill to be antient for if it be newly erected there cannot be solitus cursus aquae towards that Mill For which Reasons the Iudgment in the Original Action was affirmed in Hillary Term Primo Willielmi But the Chief Iustice was of Opinion that if the Cause had been tried upon such a Oeclaration that the Plaintiff ought to prove his Prescription or else he must be Nonsuit Anonymus ONE was Indicted for drinking of an Health to the Pious Memory of Stephen Colledge who was Executed at Oxford for High Treason He was Fined 1000 l. and had Sentence to stand in the Pillory and was ordered to find Sureties for his good Behaviour Rex versus Rosewel THE Defendant was a Non-conformist Minister and Indicted for High-Treason in Preaching of these words viz. Why do the People innuendo the People of England make a flocking to the King innuendo Carolum Secundum under pretence of curing the Kings Evil which the King cannot do but we are the Priests and Prophets to whom they ought to flock who by our Prayers can heal them We have had two Wicked Kings now together innuendo Carolum Primum Carolum Secundum who have suffered Popery to be introduced under their Noses whom I can liken to none but wicked Jeroboam and if they innuendo the People c. would stand to their Principles I make no doubt but to COnquer our Enemies innuendo the King and all his Loyal Subjects with Rams Horns broken Pitchers and a Stone in a Sling as in the time of old Vpon this Indictment he was arraigned and pleaded Not Guilty and was Tried at Bar and found Guilty of High Treason upon the Evidence of two Women And the Court having assigned Mr. Wallop Mr. Pollexfen and Mr. Bampfield to be his Council they moved in Arrest of Iudgment First That the Words discharged of the Innuendo's if taken seperate or altogether have no tendency to Treason The first Paragraph doth not import any Crime and to say that we have had two wicked Kings may be a Misdemeanor but 't is not Treason either by intendment of the Death of the King or by levying War against him The Crime seems to consist in the next Words which are if they would stand to their Principles c. This seems to stir up the People to Rebellion but as they are placed in the Indictment they will not admit of such a Construction neither as they have reference to the words precedent or as they stand by themselves The words which go before are viz. We have had two wicked Kings together 'T is not expressed what Kings or when they Reigned which is very uncertain Et si ipsi ad fundamentalia sua starent which word ipsi is relative and must refer ad proximum antecedens and then it must be ipsi Reges which is the proper and natural sense of the words But now if the Innuendo's must be incerted 4 Co. 17. it must be under some Authority of Law either to design the person or the thing which was not certain before that the intention of the Party speaking may be more easily collected and this is the most proper Office of an Innuendo It will not change the meaning of the words Hob. 45. 2 Cro. 126. for that is to make them still more incertain Now most of the Innuendo's in this Indictment are naught because they do not ascertain the subject matter First by the word People innuendo the People of England may be as well intended any other People because there was no previous Discourse of the People of England Then follow these words We have had two wicked Kings now together innuendo King Charles the First and Second which may be as well intended of King Ethelred and Alfred because the words denote a time past and therefore cannot possibly intend the King of whom there was no precedent Discourse And the Rule is De dubiis generalibus benignior Sententia recipienda est Besides those words are insensible and indeed impossible for we cannot have two wicked Kings together it ought to be successively Then to say we shall Conquer our Enemies cannot be intended the Enemies of the King because the word Enemies is of a large sense for Man by reason of his Sins and Infirmities hath many Enemies and possibly such might be intended If therefore it be doubtful what Enemies were meant if it shall not be in the power of a Clerk by an innuendo to make Words of another sense than what they will naturally bear nor to help where they are insensible as in this Case If there was no precedent Discourse either of Kings People or Enemies which must be proved by the Evidence then is this Indictment naught and therefore Iudgment ought to be arrested Mr. Attorney and Solliciter contra 'T is laid in this Indictment that the words were spoken to stir up Rebellion and to depose the King and 't is so found by the Verdict of twelve Men. That which aggravates the offence is That it was spoken in a publick Assembly to the People which must be intended the People of England
and Lodington cited in Mathew Manning's Case which was A Man being possessed of a Term for years devised it to his Wife for life and after her death to her Children unpreferred and made her Executrix and died she married again and had but one Daughter unpreferred and after the death of the Mother this Executory Devise was held good to the Daughter though it was by the Name of Children and she enjoyed the Term. 3. Object That this Act should be construed according to the Spiritual Law Answ That cannot be for all Statutes ought to be expounded according to the Rules of the Common Law and not according to their Law for they have no Law which gives power to sue nor to distribute to the Wife or next of Kin but the usual course was for the Ordinary to dispose of Intestates Goods to pious uses Then admitting this to be an Interest vested the consequence will be that it shall go to the Administrator and then Administration must be granted where the Estate legally ought to go The Administration of the Husband to the Goods of the Wife is grounded upon this reason 4 Co. 51. Ognel's Case 1 Cro. 106. because the Marriage is quasi a gift to him in Law It was not the only mischief before this Law that the Administrator run away with the whole Estate for if a Man died intestate leaving but one Son then beyond Sea and Administration was granted to a Stranger he who had right could not appeal after fourteen days which the Son could not do at that distance and so by this means a wrongful Administrator was entituled to the whole and he whose right it was had no remedy to recover at his return But now this inconvenience is likewise redressed by the Statute of Distributions for when the Son returns he may put the Bond in suit and for these reasons it was prayed that the Prohibition might stand Mr. E contra Williams argued for the Defendant in Easter-Term 2 Jacobi the substance of whose Argument was that though the Plaintiff had gotten Administration yet no Interest was thereby vested in him but that the Appeal was proper and for this he cited the Case of Beamond and Long Cro. Car. 208. which was Baron and Feme Administratrix of her former Husband recover in Debt the Feme died the surviving Husband brought a Scire Facias to have Execution and upon a Demurrer all the Court but Hide agreed that the Scire Facias would not lie for the Husband alone because it was a debt demanded by the Administratrix in auter droit This Statute hath not wholly altered the Common Law in this matter it only limits the Practice of Ecclesiastical Courts and makes provision for particular purposes viz. That Distribution shall be made to the Wife and Children and their Children which is so far introductory of a new Law but no farther so that the Right of Administration is as it was before and therefore must be granted to the next of Kin of the Father This Court hath no power to grant a Prohibition in such a Case and if it should 't is the first which ever was granted of this kind for it ought not to be determined here but in an Ecclesiastical Court which hath an original Iurisdiction of this Cause and the Appeal is in proprio loco To which Mr. Pollexfen answered that the contrary was very plain for here have been many Prohibitions granted even upon this very Act and the Question now before the Court is not concerning the manner of Distribution but the Right of Administration whether any Interest is vested in the Son or not 'T is true the Estate in Law goes to the Administrator but the Interest and Right to sue for and to recover the Estate goes to the Son so that if he should die before he is in actual possession his Administrator shall have it to pay Debts and to distribute c. In the Case of a Will if a Man should devise his Estate to his Wife and Children after Debts and Legacies paid an Interest vests in those Children which doth not differ from the Case at the Bar but that in the one Case the Testator makes the Will and in the other 't is made by an Act of Parliament Some Inconveniencies have been already mentioned if the Law should be otherwise taken but there be many more for if no Interest should vest in the Child till actual Distribution he could neither be trusted for his Education or Necessaries whilst living and no body would bury him if he should happen to die before the year and a day for the Funeral Charges would be lost It will likewise occasion delays in Administrators to make Distribution in hopes of gain neither will any honest man take an Administration upon himself because he can neither pay Mony safely or take a Release for if the Infant die before distribution it is void But notwithstanding these Reasons the Court gave Iudgment in Michaelmas-Term following That a Consultation should go the Chief Iustice being absent DE Termino Paschae Anno 1 Jac. II. in Banco Regis 1685. Coram Georgio Jefferies Mil ' Capital ' Justic ' Francisco Wythyns Mil ' Justiciariis Richardo Holloway Mil ' Justiciariis Thoma Walcot Mil ' Justiciariis Rex versus Marsh and others JAmes Marsh Information for a Forgery John W. and John L. were indicted upon the Coroners Inquest for the Murder of R. D. at H. in Kent and upon this Indictment they were arraigned and tried at the Barr this Term. The Fact upon the Evidence appeared to be that the Prisoners were Custom-House Officers who suspecting that some Wool would be transported went to the Sea-side in the Night time where there happened an Afray and the Prisoner Marsh was twice knocked down and recovering himself shot the deceased they were all acquitted of the Murder and then upon complaint made that Marsh was only found guilty upon the Coroners Enquest two of the said Iury were now sworn in Court who deposed that they upon the Coroners Enquest found the Indictment against Marsh alone which Indictment was in English but that one J.D. who was then Mayor of H. and who by virtue of that Office was also Coroner took the Indictment and told the Iury it must be turn'd into Latin which was done and he then inserted the Names of the two other Prisoners now at the Barr whereupon the said Mr. D. was now called and he appearing was bound in a Recognizance to answer this matter and the two Prisoners who were acquitted were likewise bound to prosecute him and the Iury Men were ordered to put their Affidavit in writing and swear it in Court An Information was afterwards exhibited against Mr. D. which was tried at the Barr in Trinity-Term following and he was found guilty but having spoke with the Prosecutor in the long Vacation he was only fined 20 Nobles in Michaelmas-Term Roberts versus Pain IN a Prohibition to
day of Appearance he is to see that he appear at the day either by keeping of him in Custody or letting of him to Bail the end of the Arrest is to have his Body here If he had not been bailed then he had still remained in Custody and the Plaintiff would have his proper remedy but being once let to Bail and not appearing in Court according to the Condition of the Bond that seems to be the fault of the Defendant who had his Body before the day of Appearance Iudgment for the Defendant DE Term. Sancti Hill Anno 1 Jac. II. in Banco Regis 1685. Serjeant Hampson's Case BY the Statute of Queen Elizabeth 't is Enacted 5 Eliz. c. 23. That if the person excommunicated have not a sufficient Addition or if 't is not contained in the Significavit that the Excommunication proceeds for some cause or contempt or of some original Matter of Heresie refusing to have his Child baptized to receive the Sacrament to come to Divine Service or Errors in Matters of Religion or Doctrine Incontinency Usury Simony Perjury in the Ecclesiastical Court or Idolatry he shall not incurr the Penalties in the Act. Serjeant Hampson was excommunicated for Alimony and now Mr. Girdler moved that he might be discharged because none of the aforesaid Causes were contained in the Significavit Curia He may be discharged of the Forfeiture for that reason but not of the Excommunication Anonymus ONE who was outlawed for the Murder of Sir Edmund Bury Godfrey now brought a Writ of Error in his Hand to the Bar praying that it might be read and allowed It was read by Mr. Astry Clerk of the Crown The Errors assigned were viz. That it did not appear upon the Return of the Exigent in the first Exact ' that the Court was held pro Comitatu That the Outlawry being against him and two other persons 't is said in the last Exact ' that Non comperuit but doth not say nec eorum aliquis comperuit For these Reasons the Outlawry was reversed and he held up his Hand at the Barr and pleaded Not-guilty to his Indictment and was admitted to Bail and afterwards he was brought to his Trial and no Witness in behalf of the King appearing against him he was acquitted The Mayor and Commonalty of Norwich versus Johnson A Writ of Error was brought to reverse a Iudgment given for the Plaintiff in the Common-Pleas in an Action of Waste Waste lies against an Executor de son tort of a Term. The Declaration was that the Plaintiff demised a Barn to one Took for a certain Term by vertue whereof he was possessed and being so possessed died that the Defendant was his Executor who entred and made Waste by pulling down of the said Barn The Defendant pleaded that Took died intestate and that he did not administer The Plaintiff replyed that he entred as Executor of his own Wrong and to this Plea the Defendant demurred and the Plaintiff joined in the Demurrer This Case was argued by Mr. Appleton of Lincolns-Inn for the Plaintiff who said That an Action of Waste would not lie against the Defendant because the Mayor and Commonalty c. had a remedy by an Assise to recover the Land upon which the Barn stood and a Trover to recover the Goods or Materials and that such an Action would not lie against him at the Common Law because he neither was Tenant by the Curtesie nor in Dower against whom Waste only lay So that if the Plaintiff is entituled to this Action it must be by vertue of the Statute of Gloucester 6 Ed. 1. c. 5. but it will not lie against the Defendant even by that Statute because the Action is thereby given against the Tenant by the Curtesie in Dower for Life or Years and treble Damages c. But the Defendant is neither of those and this being a penal Law which not only gives treble damages but likewise the Recovery of the place wasted ought therefore not to be taken strictly but according to Equity Tenants at sufferance or at Will by Elegit or Tenants by Statute Staple 11 H. 6. c. 5. and also Pernors of Profits were never construed to be within this Statute and therefore a particular Act was made to give him in Reversion an Action of Waste where Tenant for life or years had granted over their Estates and yet took the Profits and committed Waste Then the Question will be Co. Lit. 371. what Estate this Executor de sontort hath gained by his Entry And as to that he argued that he had got a Fee-simple by Disseisin and that for this reason the Plaintiff was barred from this Action for if the Son purchase Lands in Fee and is disseised by his Father who maketh a Feoffment in Fee to another with Warranty and dieth the Son is for ever barred for though the Disseisin was not done with any intention to make such a Feoffment 1 Roll. Abr. 662. yet he is bound by this Alienation So where a man made a Lease for life and died and then his Heir suffered a Recovery of the same Land without making an actual Entry this is an absolute Disseisin because the Lessee had an Estate for life but if he had been Tenant at Will it might be otherwise But admitting that the Defendant is not a Disseisor then the Plaintiffs must bring their Case to be within the Statute of Gloucester as that he is either Tenant for life or years If he is Tenant for Life he must be so either by right or by wrong He cannot be so by right because he had no lawful Conveyance made to him of this Estate besides 't is quite contrary to the Pleading which is that he entred wrongfully Neither can he be so by wrong for such particular Estates 6 Co. 25. as for life or years cannot be gained by Disseisin and so is Heliar's Case in 6 Co. Then if this should be construed an Estate for years it must be gained either by the Act of the Party or by the Act of the Law but such an Estate cannot be gained by either of those means First it cannot be gained by the Act of the Party Moor 126. Kendrick versus Burges because an Executor de son tort cannot have any interest in a Term and for this there is an express Authority in this Court which was thus viz. A Lease in Reversion for years was granted to a man who died intestate his Wife before she had administred sold this Term to the Defendant and afterwards she obtained Letters of Administration and made a Conveiance of the same Term to the Plaintiff and Iudgment was given for the last Vendee because it was in the case of a Reversion of a Term for years upon which no Entry could be made and of which there could be no Executor de son tort though it was admitted by the Court that such an Executor might make a good sale of
that is to make them Iudges whether this Duty is payable or not and so the Courts of Westminster who are the proper Iudges of the Revenue of the King who by this means will be without an Appeal will be excluded Curia This Court may take Cognizance of this Matter as well as in Cases of Bastardy 't is frequent to remove those Orders into this Court though the Act says That the two next Justices may take order as well for the punishment of the Mother as also for the relief of the Parish where it was born except he give Security to appear the next Quarter Sessions The Statute doth not mention any Certiorari which shews that the intention of the Law-makers was that a Certiorari might he brought otherwise they would have enacted as they have done by several other Statutes that no Certiorari shall lie Therefore the meaning of the Act must be that the determination of the Iustices of the Peace shall be final in Matters of Fact only as if a Collector should affirm that a person hath four Chimnies when he hath but two or when the Goods distrained are sold under the value and the Overplus not returned but the Right of the Duty arising by virtue of this Act was never intended to be determined by them Then the Order was filed and Mr. Pollexfen moved that it might be quashed for that by the Statute of 14 Car. 2. 14 Car. 2. c. 10. the Occupier was only chargeable and the Land-Lord exempted Now by the Proviso in that Act such a Cottage as is expressed in this Order is likewise exempted because 't is not of greater value than 20 s. by the year and 't is not expressed that the person inhabiting the same hath any Lands of his own of the value of 20 s. per annum nor any Lands or Goods to the value of 10 l. Now there having been several abuses made of this Law to deceive the King of this Duty occasioned the making of this subsequent Act. The abuses were these viz. The taking a great House and dividing it into several Tenements and then letting them to Tenants who by reason of their poverty might pretend to be exempted from this Duty The dividing Lands from Houses so that the King was by these Practices deceived and therefore in such Cases the charge was laid upon the Land-Lord but nothing of this appearing upon the Order it was therefore quashed Brett versus Whitchot IN Replevin Lands not exempted from repairing of the High-ways by grant of the King The Defendant avowed the taking of a Cup as a Fine for a Distress towards the repairing of the High-way The Plaintiff replyed and set forth a Grant from the King by which the Lands which were chargeable to send Men for the repairing c. were exempted from that Duty And upon a Demurrer the Question was Whether the Kings Letters Patents are sufficient to exempt Lands from the Charge of the repairing of the High-ways 2 3 Ph. Mar. c. 8. which by the Statute of Philip and Mary and other subsequent Statutes are chargeable to send Men for that purpose And it was argued that such Letters Patents were not sufficient because they were granted in this Case before the making of the Statute and so by consequence before any cause of Action and to prove this a Case was cited to this purpose In 2 E. 2 Inst 569. 3. an Action was brought against an Hundred for a Robbery upon the Statute of 13 E. 1. The Bishop of Litchfield pleaded a Charter of R. 1. by which that Hundred which was held in Right of his Church was exempted c. But it was held that this Charter could not discharge the Action because no such Action was given when the Letters Patents were made but long afterwards Iudgment was given for the Avowant Upton versus Dawkin TRespass quare vi armis liberam piscariam he did break and enter and one hundred Trouts ipsius Quer. Trespass for taking Fish ipsius querentis in libera piscaria not good in the Fishery aforesaid did take and carry away Vpon Not guilty pleaded there was a Verdict for the Plaintiff and this Exception was taken in arrest of Iudgment viz. For that the Plaintiff declared in Trespass for taking so many Fish ipsius Quer. in libera piscaria which cannot be because he hath not such a property in libera piscaria to call the Fish his own Pollexfen contra If there had not been a Verdict such a Construction might have been made of this Declaration upon a Demurrer but now 't is helped and the rather because a Man may call them pisces ipsius in a free Fishery for they may be in a Trunk so a Man may have a property though not in himself as in the Case of Iointenants where 't is not in one but in both yet if one declare against the other unless he plead the Iointenancy in Abatement the Plaintiff shall recover But notwithstanding the Iudgment was reversed Dominus Rex versus ...... THE Defendant was indicted for Barretry Barretry the Evidence against him was that one G. was arrested at the Suit of C. in an Action of 4000 l. and was brought before a Iudge to give Bail to the Action and that the Defendant who was a Barrister at Law was then present and did sollicite this Suit when in truth at the same time C. was indebted to G. in 200 l. and that he did not owe the said C. one farthing The Chief Iustice was first of Opinion that this might be Maintenance but that it was not Barretry unless it appeared that the Defendant did know that C. had no cause of Action after it was brought If a Man should be arrested for a trifling Cause or for no Cause this is no Barretry though 't is a sign of a very ill Christian it being against the express Word of God But a Man may arrest another thinking he hath a just cause so to do when as in truth he hath none for he may be mistaken especially where there hath been great dealings between the Parties But if the design was not to recover his own Right but only to ruine and oppress his Neighbour that is Barretry A Man may lay out mony in behalf of another in Suits at Law to recover a just Right and this may be done in respect of the Poverty of the Party but if he lend mony to promote and stirr up Suits then he is a Barretor Now it appearing upon the Evidence that the Defendant did entertain C. in his House and brought several Actions in his Name where nothing was due that he was therefore guilty of that Crime But if an Action be first brought and then profecuted by another he is no Barretor though there is no cause of Action The Defendant was found guilty DE Termino Paschae Anno 2 Jac. II. in Banco Regis 1686. Coram Edwardo Herbert Mil ' Capital ' Justic
Paper Book by the then Attorny General but by reason of a stroak cross them the Clerk omitted them in engrossing the Iudgment But upon a Motion the Court held this amendable at the Common Law Curia The Error is only a Misentry of the Writ of Enquiry and amendable without paying of Costs Mr. Aston the Secondary said that Costs were never paid in this Court upon such Amendments nor in the Common Pleas until my Lord Chief Iustice Vaughan's time but he altered the Practice and made that Rule that if you amend after a Writ of Error brought you must pay Costs Holcomb versus Petit. A Devastavit was brought against an Administrator of a rightful Executor who pleaded an insufficient Plea Administrator of a rightful ful Executor is liable to a Devastavit 30 Car. 2. c. 7. and upon a Demurrer the Question was upon the Statute of 30 Car. 2. The Title whereof is An Act to enable Creditors to recover Debts of Executors and Administrators of Executors in their own wrong which is introductory of a new Law and charges those who were not chargeable before at the Common Law but it enacts That when Executors of persons who are Executors de son tort or Administrators shall convert the Goods of any person deceased that they shall be liable as their Testator or Intestate would have been Gold held that he shall not be charged for where an Act of Parliament charges an Executor in such case an Administrator shall be likewise charged but if an Administrator be charged that shall never extend to an Executor The Rule is A majori ad minus valet Argumentum sed non e contra therefore the rightful Executor shall not be charged by this Act which only makes Executors of Executors de son tort lyable Pollexfen contra There can be no reason given why the Act should make an Administrator of an Administrator lyable to a Devastavit and not an Administrator of an Executor de son tort for the mischief will be the same and therefore a rightful Executor who wasts the Testator's Goods ought to be charged The Recital of this Act is large enough the Preamble is general and the enacting Clause expresseth Executors and Administrators of Executors de son tort but then it also mentions Administrators but not such who are their Administrators de son tort Now the Word Administrator is in it self a general Word and extends to any one who meddles with the personal Estate so that the Preamble being general and the Act remedial 't is within the same mischief Curia The Word Administrator is very comprehensive for when an Executor pleadeth he saith Plene administravit If a rightful Executor waste the Goods he is a kind of an Administrator de son tort for abusing of the Trust There is no Superiority between an Executor or an Administrator for by this Act they are both equal in power as to the Goods of the deceased Iudgment was given that the Administrator of the rightful Executor shall be liable Jenings versus Hankeys 'T IS enacted by the Statute of 13 Car. Where an Informer shall be a Witness though he hath part of the Penalty 13 Car. 2. c. 10. 2. That they who kill course hunt or take away Red or Fallow Deer in any Ground where Deer are kept c. or are aiding therein if such are convicted by Confession or Oath of one Witness before one Justice of the Peace within six Months after the Offence done shall forfeit 20 l. one Moiety to the Informer the other to the Owner of the Deer to be levied by Distress by Warrant under the Justice's Hand The Defendant was convicted by the Oath of the Informer and Mr. Shower moved that it might be quashed because the Informer is not to be admitted as a Witness he being to have a Moiety of the Forfeiture The Party to an usurious Contract shall not be admitted as an Evidence to prove the Vsury 12 Co. 68. 2 Rol. Abr. 685 because he is Testis in propria causa and by their Oath may avoid their own Bonds Mr. Pollexfen contra The Statute gives power to convict by the Oath of a credible Witness and such is the Informer 'T is not a material Objection to say That the Informer shall not be a Witness because he hath a Moiety of the Forfeiture for in Cases of the like nature the Informer is always a good Witness As upon the Statute for suppressing of Conventicles the Informer is a good Witness and yet he hath part of the Penalty for otherwise that Act would be of little force for if who sees the People met together be not a good Witness no Body else can Curia In the Statute of Robberies a Man swears for himself because there can be no other Witness he is a good Witness Harman versus Harman DEBT upon a Bond against an Administrator Notice of a Debt must be given to an Administrator who pleaded Fully administred and that he had not notice of this Bond before such a day In this Case a special Verdict was found upon which the Question was Whether Notice was necessary to be given of Debts of an inferior nature The Court gave no Opinion but they agreed that a Iudgment upon a simple Contract may be pleaded in Barr to an Action of Debt upon a Bond and that 't is no Devastavit in an Executor to pay a Debt upon such a Contract before a Bond Debt Vaughan 94. of which he had no Notice So where an Obligor did afterwards enter into a Recognizance in the nature of a Statute 2 Anders 159. 1 Mod. 157. and Iudgment was against him upon the Bond and then he dyed his Executrix paid the Creditor upon the Statute and the Obligee brought a Scire Facias upon the Judgment on the Bond Debt and she pleaded payment of the Recognizance this was held a good Plea for she is not bound to take Notice of the Iudgments against the Testator without being acquainted therewith by his Creditors for she is in no wise privy to his Acts. DE Term. Sancti Mich. Anno 2 Jac. II. in Banco Regis 1686. Anonymus AN Information was exhibited against the Defendant for Perjury Perjury in a Deposition taken before Commissioners in Chancery setting forth that a Bill in Chancery was exhibited by one A. B. and the Proceedings thereon The Perjury was assigned in a Deposition made by the Defendant 30 Julii 1683. and taken in that Cause before Commissioners in the Country It was tried this day at the Barr and the Question was Whether the Return of the Commissioners that the Defendant made Oath before them shall be a sufficient Evidence to convict him of Perjury without their being present in Court to prove him the very same person Serjeant Pemberton for the Defendant admitted an Information will lie in this Case against him but the Commissioners must be here or some other person to prove that he was
day afterwards viz. the 10th day of August a Trust of the said Office was declared by another Deed viz. to himself for Life with Remainders over and that by virtue thereof and the consent of the Trustees he took upon him the execution of the said Office and was thereof possessed either by himself or his Deputy until the time of the Inquisition taken then he traversed that the Escapes were voluntary but did not answer the concealing of the Grant and concludes viz. per quod petit that the King Hands may be amoved c. The Attorny General demurred to the Plea of the Trustees he likewise demurred to the Plea of Mr. Lenthal and took issue that the Escapes were voluntary It was argued this Term and Trinity following by Council on both sides and as to the matter of Law they made these Points 1. That this Office cannot be granted in Trust 2. The Escapes found in the Inquisition and not answered by the Trustees are sufficient causes of Forfeiture of this Offce 3. Another Point was raised whether the assignment of this Office to Trustees admitting it could be so granted and their declaration of the Trust did create an Estate at will in Mr. Lenthal If it was a Tenancy at will 1. Then whether Mr. Lenthal had done any thing to determine his will 2. Whether he can by Law make a Deputy 3. Whether the assigning of this Trust without giving notice thereof to this Court be a Forfeiture 1. This Office cannot be granted in Trust Jones 128. because 't is a personal Inheritance and will not pass by such Conveyances as are used to convey Lands so is my Lord of Oxford 's Case in which it was held that a Covenant to stand seised of an Office is void neither can Mr. Lenthal take upon him the execution of this Office by the consent of the Trustees for that cannot be without Deed. If the Law should be otherwise this inconvenience would follow viz. Mr. Lenthal might grant the Office to another without leave of the Court and the Grantee might suffer voluntary Escapes having no valuable Interest to answer the parties injured who must then sue Mr. Lenthal and he hath no Estate in him for he hath conveyed the Inheritance to the Trustees and if they should be likewise sued no recovery could be against them because they are only nominal 'T is almost like the Grant of an Office of chief Prothonotary of the Court of Common-Pleas to two persons for Life 18 Ed. 4. f. 7. which cannot be good because the Rolls of the Court cannot be in the keeping of two persons at one time It hath been adjudged that this very Office cannot be granted for years Cro. Car. 587. Jones 437. because 't is an Office of Trust and daily Attendance and such a termor for years may dye intestate and then it would be in suspence 'till Administration is committed which is the act of another Court 2. Point That the Escapes found in the Inquisition and the non-attendance of the Trustees are sufficient cause of Forfeiture 'T is true at the Common-Law Debt upon an Escape will not lie against the Goaler that Action was afterwards given by the Statute of W. 2. For before that Act the only remedy against the Goaler was to bring an Action on the Case against him founded upon a wrong done Dyer 273. But now Debt will lie and if the party is not sufficient at the time of the Escape 2 Inst 382. respondeat superior The Marshal who executes this Office be it by right or wrong is answerable to the King and his People for Escapes If they are voluntary 't is a Forfeiture of his Office nay if a Deputy suffer such Escapes 't is a Forfeiture by the Principal unless such Deputation be made for Life and then the Grantee for Life only forfeits the Office As to the non-attendance of the Trustees if Mr. 39 H. 6.32 Lenthal be Tenant at will and hath granted this Office to another for Life this is a determination of the Tenancy at will and a Forfeiture as to him Now this Grantee for Life cannot be said to be a Deputy for such a Grantee himself cannot make a Deputy and therefore a fortiori a Tenant at will cannot do it But admitting he should be Deputy yet a Forfeiture by him is a Forfeiture by his Superior and therefore Mr. Lenthal 's tenancy at will being gone the Trustees ought to attend and their non-attendance ought to be a Forfeiture The non-attendance of an Officer Cro. Car. 491. who was only a Searcher in a Port Town was adjudged a Forfeiture much greater is the Fault of that Officer who hath the administration of Iustice if he do not give his attendance Besides 39 H. 6.34 a. 9 Co. 46. Dyer 198. Sid. 81. Dyer 150 151. if they do not attend by consequence they cannot act in the Office and non-feazance is as sufficient a cause of Forfeiture as any other mis-behaviour whatsoever But if the Trustees had given attendance they are persons inexperient and therefore incapable to execute this Office for which they may be lawfully refused by this Court Mr. Pollexfen chiefly insisted upon the point of Pleading that the matter found by the Inquisition was not answered by the Plea First he excepted that the Defendant had not by his Plea entituled himself to any Estate in this Office 1 Leon. 202. 2 Inst 695. Stamf. 62 64. 2 Leon. 123. and therefore he could not traverse the Title of the King without making a Title to himself for why should he desire that the Kings Hands may be amoved and he restored to his Office if he hath not shewen a Title to it His pleading of this Deed of Trust by which he is permitted to receive the Profits c. during Life cannot create such an Estate in him as will be executed by the Statute of Vses therefore he can have no Estate for Life for if a Man is seised in Fee of an Estate and makes a Declaration thereof in Trust for J. S. this is no colour to make an Estate for Life in J. S. The Defendant hath therefore no more than a Trust in this Office which is nothing in the Eye of the Law and for which there is no remedy but by Subpoena in Chancery so that being only a Cestui que trust he hath neither jus in re nor ad rem He cannot be Tenant at will for he is not made so by the Deed of Trust There is a great deal of difference between Evidence and Pleading for this very Deed may be an Evidence of an Estate at will but 't is not so in pleading therefore he ought to have pleaded that coram praetextu he was possessed of the Office and took the Profits c. but he having otherwise pleaded and not entituled himself to any Estate therein he ought to be laid aside as an incompetent person The Plea of Sir Edward Norris
the said Master c. for the use of the Company and that no Member of the Company should buy rough Horn within four and twenty miles of London but of those two Men so appointed under a Penalty to be imposed by the said Master Warden c. That the Defendant did buy a quantity of rough Horn contrary to the said Law c. There was Iudgment in this Case by default And for the Defendant it was argued that this was not a good By-Law 1. Because it doth restrain Trade 11 Co. 54. Hob. 210. for the Company are to use no Horns but such as those two Men shall buy and if they should have occasion for more than those Men should buy then 't is plain that Trade is thereby restrained 2. The Master c. hath reserved a power which they may use to oppress the Poor because they may make what Agreements they will amongst themselves and set unreasonable prices upon those Commodities and let the younger sort of Tradesmen have what quantity and at what rates they please To which it was answered by Serjeant Thompson First This By-Law is for the encouragement of Trade because the Horns are equally to be distributed when brought to the Hall for the benefit of the whole Company But the material Objection was that this being a Company incorporated within the City of London they have not Iurisdiction elsewhere but are restrained to the City and by consequence cannot make a By-Law which shall bind at the distance of four and twenty miles for if they could make a Law so extensive they might by the same reason enlarge it all over England and so make it as binding as an Act of Parliament and for this reason it was adjudged no good By-Law Sir John Wytham versus Sir Richard Dutton ASsault and False Imprisonment 14 Octob. 36 Car. 2. c. The Defendant as to the Assault before the 6th day of November pleads Not-Guilty and as to the False Imprisonment on the said 6th day of November in the same year he made a special Iustification viz. That 28 Octob. 32 Car. 2. c. the King by his Letters Patents did appoint the Defendant to be Captain general and Chief Governour of Barbadoes and so sets forth the Grant at large by which he appoints twelve Men to be of the King's Council during pleasure of which the Plaintiff Wytham was one that the Defendant had also power by the advice of that Council to appoint and establish Courts Iudges and Iustices and that the Copies of such Establishments must be sent hither for the King's Assent with power also to establish a Deputy-Governour that by vertue of these Letters Patents the Defendant had appointed Sir John Wytham to be Deputy-Governour of the said Island in his absence and that he being so constituted did male arbitrarie execute the said Office That when the Defendant returned to Barbadoes viz. 6 Novemb 35 Car. 2. he called a Council before whom the Plaintiff was charged with male Administration in the absence of the Defendant viz. That he did not take the usual Oath for observing of Trade and Navigation that he assumed the Title of Lieutenant Governour and that Decrees made in Court were altered by him in his Chamber Vpon which it was then ordered that he should be committed to the Provost Marshal until discharged by Law which was done accordingly in whose Custody he remained from the 6th day of November to the 20th of December following which is the same Imprisonment c. To this Plea the Plaintiff demurred and the Defendant joyned in Demurrer Mr. Pollexfen argued for the Plaintiff and Serjeant Thompson for the Defendant 1. It was said for the Plaintiff that the Causes of his Commitment if any yet were such which they ought not meddle withal because they relate to his Mis-behaviour in his Government for which he is answerable to the King alone But supposing they might have some cause for the committing of him this ought to be set forth in the Plea that the Plaintiff might answer it for to say he did not take the Oath of Deputy Governour in what concerned Trade and Navigation is no cause of Commitment because there was no Body to administer that Oath to him for he was Governour himself Then to alledge that he did alter in his Chamber some Decrees made in the Court of Chancery that can be no cause of Commitment for the Governour is Chancellor there Besides the Defendant doth not shew that any Body was injured by such alterations neither doth he mention any particular Order but only in general so 't is impossible to give an Answer to it 2. He doth not alledge that the Plaintiff had made or done any of these things but that he was charged to have done it and non constat whether upon Oath or not The Governour hath a large power given by these Letters Patents to make Laws such as he by consent of a general Council shall enact Ex parte Def. The Fact is set forth in the Plea the Plaintiff was committed by vertue of an Order of Council until he was brought to a general Court of Oyer and Terminer by which Court he was again committed That the Court had power to commit him is not denied for the King is not restrained by the Laws of England to govern that Island by any particular Law whatsoever and therefore not by the Common Law but by what Law he pleaseth For those Islands were gotten by Conquest or by some of his Subjects going in search of some prize and planting themselves there Calvin 's Case The Plaintiff being then committed by an Order of Council till he should be discharged by due course of Law this Court will presume that his Commitment was legal The Court were all of Opinion that the Plea was not good so Iudgment was given for the Plaintiff but afterwards 5 Willielmi Mariae this Iudgment was reversed by the House of Peers Sir Robert Jefferies versus Watkins THIS was an Action brought for a Duty to be paid for weighing of Goods at the Common Beam of London Verdict cures a defective Declaration setting forth that the Lord Mayor c. time out of mind kept a common Beam and Weights and Servants to attend the weighing of Goods That the Defendant bought Goods c. but did not bring them to the Beam to be weighed per quod proficuum amisit Vpon Not-Guilty pleaded there was a Verdict for the Plaintiff and it was moved in arrest of Iudgment that the Plaintiff had not brought himself within the Prescription for he doth not say that the Defendant sold the Goods by Weight and this is a fault which is not helped by a Verdict This had been certainly naught upon a Demurrer and being substance is not aided by this Verdict This is Substance for the Duty appears to be wholly in respect of the Weights which are kept now Weighing being the Principal and it
being no where alledged that the Goods were weighed elsewhere or that they were such which are usually sold by Weight then there is no need of bringing of them to the Beam If one prescribes to a Common and doth not say for Cattle Levant and Couchant the Prescription is not good This being the consideration of the Duty it ought to be precisely alledged as in an Assumpsit where the Plaintiff declared that in consideration that the Defendant owed him 40 l. he promised to pay it ante inceptionem proximi itineris to London Yelv. 175. 2 Cro. 245. and alledged that such a day incepit iter suum ad London ' but for omitting the Word proxime Iudgment was arrested after Verdict because the Duty did arise upon the commencement of his next Iourney The true reason why any thing is helped by Verdict is for that the thing shall be presumed to be given in Evidence at the Trial. Mr. E contra Pollexfen contra Here is enough set forth in the Plea to shew that the Goods were not weighed and it must be given in Evidence at the Trial that they were sold contrary to the Custom which is the only Offence to be proved The want of Averment that the Goods sold by the Defendant were not weighed shall not vitiate this Declaration after a Verdict To prove this some Authorities were cited Cro. Eliz. 458. 2 Cro. 44. Siderfin 218. Palmer 360. Cro. Car. 497. as where in Trespass the Defendant justified for Common by Prescription for Beasts Levant and Couchant and that he put in his Beasts utendo Communia Issue was taken upon the Prescription and found for the Defendant now though he did not averr that the Cattle were Levant and Couchant yet it was held that it was cured by a Verdict And of this Opinion were three Iudges now but Iustice Allybon differed for says he if this Declaration should be good after a Verdict then a Verdict will cure any fault in Pleading Iudgment for the Plaintiff Prowse versus Wilcox AN Action on the Case for scandalous Words Words spoken of a Justice of the Peace where actionable The Plaintiff declared that he was a Justice of the Peace for the County of Somerset that there was a Rebellion in the West by the Duke of Monmouth and others that search was made for the Defendant being suspected to be concerned in that Rebellion and that the Defendant thereupon spoke these words of the Plaintiff viz. John Prowse is a Knave and a busie Knave for searching after me and other honest Men of my sort and I will make him give me satisfaction for plundering me There was a Verdict for the Plaintiff and the Iudgment being stayed till the Return of the Postea Mr. Pollexfen moved that the Plaintiff might have his Iudgment because the Words are actionable 1 Roll. Abr. 59. pl. 3. for they touched him in his Office of a Iustice of a Peace It was objected to stay the Iudgment that the Words were improper and therefore could not be actionable But admitting them so to be yet if they in any wise reflect upon a Man in a publick Office they will bear an Action Shore contra The Plaintiff doth not lay any Colloquium of him as a Justice of the Peace or that the words were spoken of him relating to his Office or the Execution thereof and therefore an Action will not lie though an * Vid. antea Rex versus Darby 2 Cro. 315. Information might have been proper against him If a Man should call another Lewd Fellow and that he set upon him in the High-way and took his Purse from him an Action will not lie because he doth not directly charge him with Felony or Robbery The Court were divided in Opinion two against two so the Plaintiff had his Iudgment Boyle versus Boyle A Libel was in the Spiritual Court against a Woman causa jactitationis Maritagii Prohibition granted The Woman suggests that this person was indicted at the Sessions in the Old-Bayly for marrying of her he then having a Wife living contra formam Statuti Godb. Rep. Can. 507. Hales 121. 1 Jac. cap. 11. Sid. 171. that he was thereupon convicted and had Iudgment to be burned in the Hand so that being tried by a Iury and a Court which had a Iurisdiction of the cause and the Marriage found a Prohibition was prayed Serjeant Levinz moved for a Consultation because no Court but the Ecclesiastical Court can examine a Marriage for in the Dower Writ is always directed to the Bishop to certifie the lawfulness of the Marriage and if this Woman should bury this Husband and bring a Writ of Dower and the Heir plead Ne unques accouple c. this Verdict and Conviction shall not be given in Evidence to prove the illegality of the Marriage but the Writ must go to the Bishop This is proved by the Case of Emerton and Hide in this Court The Man was married in fact and his Wife being detained from him she being in the Custody of Sir Robert Viner brought an Habeas Corpus she came into the Court but my Lord Hales would not deliver the Body but directed an Ejectment upon the Demise of John Emerton and Bridget his Wife that the Marriage might come in question It was found a Marriage and afterwards at an Hearing before the Delegates this Verdict was not allowed to be given in Evidence because in this Court one Iury may find a Marriage and another otherwise so that it cannot be tried whether they are legally married by a Temporal Court 'T is true this Court may controle the Ecclesiastical Courts but it must be eodem genere E contra E contra It was said that if a Prohibition should not go then the Authority of those two Courts would interfere which might be a thing of ill consequence If the lawfulness of this Marriage had been first tried in the Court Christian the other Court at the Old-Bayly would have given Credit to their Sentence But that Court hath been prohibited in a Case of the like nature 2 Cro. 535. for a Suit was there commenced for saying That he had a Bastard The Defendant alledged that the Plaintiff was adjudged the reputed Father of a Bastard by two Iustices of the Peace according to the Statute and so justified the speaking of the words and this being refused there a Prohibition was granted and so it was in this Case by the Opinion of three Iudges Dr. Hedges a Civilian being present in the Court said that Marriage or no Marriage never came in question in their Court upon a Libel for Jactitation unless the Party replies a lawful Marriage and that the Spiritual Court ought not to be silenced by a Proof of a Marriage de facto in a Temporal Court for all Marriages ought to be de jure of which their Courts had the proper Iurisdiction Sir John Newton versus Francis Creswick IN an Action on the
' ac qd ' Record ' ill ' in nullo vitiosum aut defectivum existit Ideo considerat ' est qd ' Judicium praed ' adjudication ' executionis superinde in omnibus affirmetur ac in omni suo robore stet effectu dict' causis materiis superius pro Error ' assign ' in aliquo non obstante Et ulterius per Cur. Judgment affirmed Domini Regis Dominae Reginae nunc hic cons est qd ' praedict ' Abel Ram recuperet versus praefatum Donatum Obrian octodecim libras eidem Abel per Curiam Domini Regis Dominae Reginae nunc hic secundum formam Statuti in hujusmodi casu edit ' provis adjudicat ' pro mis custag ' dampn ' suis quae sustin ' occasione dilationis executionis Judicij praedict ' praetextu prosecutionis praedict ' Brevis de Errore Et qd ' praedictus Abel habeat inde executionem c. Obrian versus Ram. ERror to reverse a Iudgment given in Ireland Whether a Sci. fa. will lie against the Husband alone after the death of the Wife upon a Judgment had against her dum sola upon a Scire Fac. brought against the Plaintiff in the Errors setting forth that Debt was brought upon a Bond against Elizabeth Grey and a Iudgment was thereupon obtained for 800 l. dum sola That the said Elizabeth afterwards intermarried with Mr. Obrian That a Scire Facias was brought upon that Iudgment against Husband and Wife to shew cause why the Plaintiff should not have execution That upon this Scire Facias there were two Nichils returned and thereupon Iudgment was had against Husband and Wife It rested for a year and a day and then the Wife died and the Plaintiff brought a new Scire Fac. against the Husband alone to shew cause why he should not have Execution upon the first Iudgmont The Defendant pleaded that there was another Scire Fac. brought against him and his Wife for the same Cause c. And upon a Demurrer to this Plea Iudgment was given in Ireland against him The Question now was whether this Scire Fa. will lye against the Husband alone after the death of his Wife This Case was argued by Mr. Finch and Mr. Pollexfen that the Husband was not chargable It was admitted on all sides that if a Feme sole is indebted and marries that an Action will lye against the Husband and Wife and he is lyable to the payment of her Debts It was agreed also that if a Iudgment be had against a Feme sole and she marries and afterwards dies that the Husband is not chargable because her Debts before Coverture shall not charge him unless recovered in her Life-time In like manner no Debts which are due to her dum sola shall go to the Husband by virtue of the inter-marriage if she dye before those are recovered but her Administrator will be entituled to them which may be the Husband but then he hath a Right only as Administrator 1 Roll Abr. 351. and the reason is because such Debts before they are recoverd are only choses in Action And from hence the Council did inferr that the Iudgment in this Case against the Wife dum sola did not charge the Husband Then the Question will be if the Husband is not chargeable by the Original Iudgment whether the Iudgment on the Scire Fac. had not made an alteration and charged him after the death of his Wife And as to that it was said that this Iudgment upon the Scire Fac. made no new charge for 't is only quod habeat executionem c. and carries the first Iudgment no farther than it was before for 't is introduced by the Sci. Fac. At the Common Law no Execution could be had upon a Iudgment after a year and a day and there was then no remedy but to bring an Action of Debt upon that Iudgment This Inconvenience was remedied by the Statute of Westm W. 2. cap. 45. the 2. which gives a Scire Fac. upon the Iudgment to shew cause why Execution should not be had which can be no more than a liberty to take Execution upon the Original Iudgment which cannot charge the Husband in this case because 't is only a consequence of that Iudgment and creates no new charge for a Release of all Actions will discharge this award of Execution But the Reasons why the original Iudgment shall not be carried farther by the Iudgment in the Scire Fac. are as follow 1. By considering the nature of a Scire Fac. which lay not at the Common Law but is given by the Statute in all persosonal Actions the words whereof are these Viz. 2 Inst 469. Sid. 351. Observandum est de caetero quod ea quae inveniuntur irrotulat c. Vpon which words it is evident that the execution of the first Iudgment on Record is all which is given by this Act after the year and day and it takes off that bar which was incurred by the lapse of time and gives a speedy Execution of the Iudgment recorded 2. The Proceedings upon a Scire Facias shew the same thing for the Writ recites the first Iudgment and then demands the Defendant to shew cause why the Plaintiff should not have Execution thereon juxta vim formam effectum recuperationis praed but prays no new thing 3. A Scire Facias is not an Original but a Iudicial Writ which depends purely upon the first Iudgment 1 Roll. Abr. 777. pl. 6. 8 Co. 143 Dr. Drurie's Case and a Writ of Error suspends the execution of both so likewise if the Original Iudgment be reversed even a Iudgment obtained upon a Scire Facias will be reversed in like manner 4. The Law doth not charge a Man without an Appearance but here is none and the Statute can never operate upon this Case because that extends only to such Iudgments upon which there has been a Recovery and here is nothing recovered upon this Scire Facias for 't is only to have Execution upon the first Iudgment If the Law should be otherwise this absurdity would follow Viz. There would be a Recovery without a Record for the purport of the Scire Facias is only to have Execution according to the form and effect of the Record and the very Record it self doth not charge the Husband Besides the first Iudgment did charge the Lands of the Wife which are still liable to satisfie the Debt why therefore must the Lands of the Husband be charged Cannot the Administrator of the Wife bring a Writ of Error to reverse this Iudgment and if it should be reversed shall the Husband pay the Debt and the Administrator of the Wife be restored The Objections made by the Council on the other side against this Opinion were viz. That if an Action of Debt will lie upon a Iudgment in a Scire Facias the Original Iudgment is by this means carried farther for without
Release or Confirmation and then his Council should advise what sort of Conveyance is proper But here it is to make an Assignment and such as the Parties had agreed on If a Man should be bound to give another such a Release as the Iudge of the Prerogative Court shall think fit 5 Co. 23. Lambs Case 1 Rol. Abr. 424. pl. 8. the person who is so bound must procure the Iudge to direct what Release shall be given because the Condition is for his benefit and he hath taken upon him to perform it at his Peril 'T is usual for Men to have Council on both sides to put their Agreements into method but in this Case it being left generally as Council shall direct what reason can be given why the Defendants Council shall not be intended especially when it seems by the penning of the Covenant he shall For an Assignment is to be made as Council shall direct and here being a Verdict for the Plaintiff it must now be presumed that the Defendants Council was first to give the advice and then he was to make the Assignment E contra E contra It was argued that first as to the Verdict 't is not materially objected in this Case because the Plea is non est factum so that nothing of the special matter could come in Evidence Now admitting this Covenant to be general yet one of the Parties must make his choice of Council before he can entitle himself to an Action All Deeds are taken according to the general intendment and therefore by this Covenant his Council is to advise to whom the Assignment is to be made 3 Bulstr 168. for if the Council of the Defendant should advise an insufficient Deed that would not have saved his Covenant Befides the Plaintiff hath not averred that Council did not advise and therefore the Defendant could not plead any thing but non est factum Adjornatur Anonymus A Pleint was removed out of the Lord Mayors Court by Habeas Corpus the Return whereof was Exceptions to a By-Law that the City of London was an ancient City Incorporate and that time out of mind there was a Custom that the Portage and unlading of all Coals and Grain coming thither should belong to the Mayor and Aldermen c. That there was a Custom for them to regulate any Custom within the City c. Then they set forth an Act of Common-Council by which the Porters of Billingsgate were made a Fellowship and that the Meeters of Corn should from time to time give notice to the Porters to unlade such Corn as should arrive there and that no Bargeman not being Free of the said Fellowship shall unlade any Corn upon the Forfeiture of 20 s. to be recovered in an Action brought in the Name of the Chamberlain and that the Party offending shall have no Essoign or Wager of Law Then they set forth the Iudgment in the Quo Warranto and the re-grant and that the Defendant not being of the said Fellowship did unlade one hundred Quarters of Malt c. Serjeant Thompson took many Exceptions to this By Law but the most material were 1. It appears upon the Return that the City of London hath assumed an Authority to create a Fellowship by Act of Common Council which they cannot for 't is a Prerogative of the Crown so to do and they have not averred or shewed any special Custom to warrant such an Authority 2. They have made this By-Law too general for if a Man should carry and unlade his own Goods there he is lyable to the Forfeiture in which Case he ought to be excepted 3. This Act of Common Council prohibits Bargemen not being Free of the Fellowship of Porters to unlade any Coals or Grain arriving there and they have not averred that the Malt unladed did arrive c. so they have not pursued the words of the By-Law 4. They say in this Law Godb. 107. that the person offending shall have no Essoign or Wager of Law which is a Parliamentary Power and such as an inferiour Iurisdiction ought not to assume Adjornatur Beak versus Thyrwhit THere was a Sentence in the Court of Admiralty Whether Trover will lie for a Ship after Sentence in Admiralty for the same Ship concerning the Taking of a Ship and afterwards an Executrix brought an Action of Trover and Conversion for the same The Defendant after an Imparlance pleads that at the time of the Conversion he was a Servant to King Charles the Second and a Captain of a Man of War called the Phoenix and that he did seize the said Ship for the Governour of the East-India Company she going in a trading Voiage to the Indies contrary to the King's Prohibition c. And upon a Demurrer these Exceptions were taken to this Plea 1. The Defendant sets forth that he was a Servant to the King but hath not shewed his Commission to be a Captain of a Man of War 2. That he seized the Ship going to the Indies contrary to the King's Prohibition and hath not set forth the Prohibition it self It was Argued by the Council contra That it may be a Question whether this was the Conversion for which this Action is brought for it was upon the Sea and the Defendant might plead to the Iuisdiction of this Court the Matter being then under the Cognizance of the Admiralty But as to the Substance of this Plea 't is not material for the Defendant either to set forth his Commission or the King's Prohibition he hath shewed enough to entitle the Court of Admiralty to a Iurisdiction of this Cause and therefore this Court cannot meddle with it for he expresly affirmeth that he was a Captain of a Man of War and did seize this Ship c. which must be intended upon the Sea so that the Conversion might afterwards be upon the Land Cro. Eliz. 685. yet the original cause arising upon the Sea shall and must be tried in the Admiralty and it having already received a determination there shall not again be controverted in an Action of Trover The Case of Mr. 3 Keb. 785. Hutchinson was cited to this purpose who killed Mr. Colson in Portugal and was acquitted there of the Murder the Exemplification of which Acquittal he woduced under the great Seal of that Kingdom being brought from Newgate by an Habeas Corpus to this Court notwithstanding the King was very willing to have him tried here for that Fact the consideration whereof he referred to the Iudges who all agreed that he being already acquitted by their Law could not be tryed again here Adjornatur Smith versus Pierce A Special Verdict was found in Ejectment A Term for years was devised for payment of Debts the Remainder over in Tail he in Remainder enters and levies a Fine and settles the Land upon his Wife for life and dies the Wife surviving and the Debts not paid whether this Term is barred by
Defendant Elizabeth The Question in which Case was whether by the Entry of the Son who was Tenant at Will and his making of this Lease the Father was disseised of the Freehold And it was held not for it was found in that Verdict that he occupying at Will and entring by his Fathers Assent the Lease was also intended to be made by his Assent But on the other side it was said that this Fine was a Barr by the express Words of the Statute of H. 7. E contra which excludes in all Cases but where there is Fraud or the person is incapable 4 H. 7. c. 24. or where the Right to be barred is not divested In this Case John Basket had an Interest and present Right and though it be closed with a Trust yet that will not make any difference 1. Cro. Car. 550. 10 Co. 56. Here is no Fraud for the Fine was levyed by Tenant in Tail in possession but if there had been Fraud it ought to be found otherwise it shall not be presumed This is not like Blunden's Case for there the Son was Tenant at Will but 't is not found by this Verdict that John occupied at Will There is no difference between this Term and a Trust of a Term to attend the Inheritance whose Interest shall be barred by such a Fine and Nonclaim because the Trust is included in the Fine and therefore the Trustees not making of their Claim within the five years are for ever excluded It cannot be denied but a Term for years is such an Interest which may be barred by Fine 5 Co. 123. 't is Saffin's Case expresly which was a Lease for years to commence in futuro after a Lease then in being should be determined the first Lease ended the second Lessee did not enter but the Reversioner did and made a Feoffment and levyed a Fine and five years passed without Entry or Claim by the second Lessee it was adjudged that this Fine was a Barr to him for when his future Interest commenced then and not before he had such a present Interest in the Land which might be divested and turned to a Right To which it was answered that this differs from Saffin's Case which was an interesse Termini and the Case of Alport which was an Executory Devise If John Basket had still continued in Possession it might have altred the Case but he died and his Wife entred and then the five years passed without any Claim Adjournatur Evans versus Crocker A Special Verdict in Ejectment was found in Ireland In Ejectment where the Entry seems to be before the Title yet the Declaration is good and Iudgment given there for the Plaintiff and now a Writ of Errour was brought in this Court and the Common Error assigned The Objection was to the Declaration which was That the Plaintiff declared upon a Demise made 12 Junii c. Habendum a praedicto duodecimo die Junij which must be the 13th day of the same Month usque c. virtute cujus quidem dimissionis he entred c. and that the Defendant postea scilicet eodem duodecimo die Junij did eject him c. So that it appears upon the Face of the Declaration that the Defendant entred before the Plaintiff had a Title for the Lease commenced on the 23th of June and the Entry was on the 12th of that Month. And it was said that this agrees with a former Resolution in this Court where the Lease was made the 24th of June for five years Habendum a die datus Siderfin 8. 2 Cro. 96. which must be the 25th by vertue whereof the Plaintiff entred and that the Defendant postea scilicet 24th Junij did eject him which must be before the commencement of the Lease Curia The Plaintiff entred as a Disseisor by his own shewing and thereupon Iudgment was reversed Rex versus Kingsmill QUO Warranto against the Defendant to shew cause why he executed the Office of a Bayliff of the Hundred of Barnstaple Grant of an Hundred where good c. The Defendant pleaded that the said Hundred was an ancient Hundred and that the Office of Bayliff was an ancient Office and that the Hundred Court was an ancient Court held from three Weeks to three Weeks before the Steward thereof that the Return of Writs was an ancient Liberty and Franchise which did belong to the said Bayliff that King Charles I. was seized of the said Franchise jure Coronae in Fee who by Letters Patents dated c. did grant the same to one North Habendum the said Hundred to him and his Heirs and that by several mesne Assignments it came to and was vested in the Defendant and so he justified to have Retorna Brevium To this Plea the Plaintiff demurred And for the King it was argued that this Claim was not good First as to the manner of the Grant as 't is here pleaded viz. that the King was seized in Fee c. and that he granted the Franchise Habendum the said Hundred That such a Grant can never include the Hundred for nothing can pass in the Habendum but what was mentioned in the Premisses 2. The Defendant hath derived a Title from the Crown to this Office of a Bayliff which must be either by Grant or Prescription It cannot be by Grant for 't is a Question whether the Hundred Court can now be separated from the County Court it hath been derivative from it in former times when the Sheriffs did let those Hundreds to farm to several persons who put in Bayliffs errant to the great oppression of the People which was the occasion of the making of the Statute of Ed. 14 E. 3. c. 9. 3. by which such Hundreds were united and rejoyned to the Counties as to the Bailiwicks thereof 4 Inst 267. except such as were then granted in Fee by the King or his Ancestors Now these Hundreds were usually granted to Abbots and other religious persons 31 H. 8. c. 13. and their Possessions coming afterwards to the King by the dissolution of their Abbies and Monasteries are now merged in the Crown and cannot be regranted after the making of that Statute And as the Defendnat cannot have a Title by Grant so he hath not prescribed to have this Office 't is true the Plea sets forth that 't is an ancient Office but that is not a Prescription but a bare Averment of its Antiquity But admitting he had alledged it by way of Prescription 14 H. 4.89 he could not do it by a Que Estate to have Retorna Brevium A man cannot preserive to have Cognizance of Pleas in an Hundred Court he may in a County Palatine because 't is of a mixed Iurisdiction Neither can he prescribe to have Return of the King's Writs Abbot de Strata Marcella because they are matter of Record Here is a good Title pleaded E contra It was never yet denied but that
the King may be seized in Fee of an Hundred and that he may grant Retorna Brevium the Statutes are plain in it 14 E. 3. c. 9. for otherwise how came any Lords to have Hundreds in Fee but by the Kings Grants And 't is as plain that Hundreds may be divided from the County 2 E. 3. c. 12. for else to what purpose was the Statute of Lincoln made which adjoins Hundreds and Wapentakes to the Counties and provides that they shall never be separated again this shews that they were divided at that time The Objections which have been made are viz. That the Defendant cannot have a Title to this Office by Grant and he hath not made any Prescription to it The Reasons given why he could not have it by Grant were because ancient Hundreds which were united to the Counties by the Statute of Ed. 3. could never afterwards be divided from them by any Grant of the King and those which were excepted in that Statute as being granted in Fee by the King or his Ancestors when they come again to the Crown cannot be regranted because they are merged in it In answer to which it was said that such ancient Liberties which were created by the Crown and did subsist by the King 's Grant before the Statute of Ed. 3. when afterwards they came to the King were not merged but remained a distinct Interest in him The Hundred of Gartree in the County of Leicester was such a Liberty it was an ancient Hundred and granted by Ed. 2. Cole versus Ireland Raym. 360. to John Sedington not in Fee but durante bene placito Regis this Grant was long before the making of the Statute of Ed. 3. and yet afterwards this very Hundred was granted to several other persons by the suceeding Kings of England which shews it was merged in the Crown when it came to the King The other Objection was that Retorna Brevium doth not lie in Prescription Now as to that though it be true that no Title by Prescription can be made to such Franchises and Liberties which cannot be seized as forfeited before the cause of Forfeiture appears on Record because Prescription being an Vsage in pais doth not extend to such things which cannot be had without matter of Record 1 Inst 114. b. Yet my Lord Coke is clear that a good Title may be made to hold Pleas Leets Hundreds c. by Prescripteon only without Matter of Record But notwithstanding what was said to maintain this Plea Iudgment was given against the Defendant Rex versus Griffith THE Defendant was convicted of Manslaughter at the Old-Bayly Indictment for Murder the Party was found guilty of Manslaughter and pleaded his Pardon and afterwards the Indictment was quashed to save the Forfeiture of his Goods and the Record being removed into this Court by Certiorari he pleaded his Pardon and had Iudgment Quod eat inde sine die But being once convicted the Dean and Chapter of Westminster did seize his Goods as forfeited by that Conviction who thereupon although he was out of the Court by that Iudgment yet he moved by his Council to quash the Indictment The Exceptions taken were viz. That the Indictment was Per Sacramentum duodecim proborum legalium hominum jurat ' onerat ' praesentat ' existit modo forma sequen ' Midd. ss Juratores pro Domino Rege praesentant c. That there was no President to warrant such an Indictment for this may be the Presentment of another Iury it being very incoherent to say that it was presented by the Oaths of twelve Men that the Iury do present It ought to be praesentat ' existit quod c. and so is the form of this Court as the Clerk of the Crown inform'd them 2. They present that Griffith and two others did make an Assault on the Body of the deceased and that quidam Johannes in nubibus did wound him with a Gun so that 't is uncertain who did shoot and what Gun was discharged which ought to be certainly laid in the Indictment Vaux 's Indictment for Poisoning Ridley was 4 Co. 44. b. that the said Ridley not knowing the Beer to be poyson'd but being perswaded by Vaux recepit bibit but did not say venenum praedictum and so it not appearing what thing he did drink which ought to have been expresly alledged the Indictment was held insufficient And the reason is plain for an Indictment for Felony being a Declaration for the King against the Life of a Subject ought to set forth a sufficient certainty of the Fact which shall not be supplied either by Argument or any intendment whatsoever And therefore in Long 's Case the Defendant was indicted for discharging a Gun upon Long 5 Co. 122. b. Dans eidem Henrico Long mortale vulnus and doth not say percufsit for which reason that Indictment was also held insufficient because in all Indictments for Murder they ought expresly to alledge a stroke given For these Reasons the Indictment was quashed and a new Roll was made on which this Indictment and Certiorari were both entred and Iudgment quod exoneretur and this was done to avoid the seizure And afterwards in Michaelmas Term primo Will. Mar. it was said by the Chief Iustice that it must be intended these were two persons for no Court would justifie such a Iudgment Anonymus IN Assault and Battery After a Traverse you must not conclude to the Country the Defendant pleaded a Release of all Actions c. The Plaintiff replied that the Release was gotten by duress c. The Defendant rejoyned and shewed cause why it was not gotten by duress but that he sued forth a Capias and did Arrest him c. and that the Release was voluntary c. The Plaintiff surrejoyns and saith that it was gotten by duress absque hoc that it was voluntary Et hoc petit quod inquiratur per patriam Vpon this Issue the Cause was tryed Dyer 353. a. 1 Inst 126. a. Cro. Car. 316. Sid. 341. 2 Cro. 588. 2 Rol. Rep. 186. and the Plaintiff had a Verdict and now it was moved in Arrest of Iudgment that he ought not to conclude to the Country after a Traverse because a Traverse it self is Negative and therefore the Defendant ought to have joyned issue in the Affirmative 't is true if issue had been joyned before the Traverse it might have been helped by the Statute of Ieofails but it was not so in this Case and therefore the Iudgment was Arrested Hitchins versus Basset Mil ' IN Ejectment upon the Demise of Mr. Nosworthy The Iury found a special Verdict A subsequent Will which doth not appear shall not be a Revocation of the former the substance of which was Viz. That Sir Henry Killigrew was seised in Fee of the Lands in question in the County of Cornwal and being so seised did in the year 1644. devise the
an Inn-keeper or common Carrier 't is usual to declare secundum legem consuetudinem Angliae for 't is not a Custom confined to a particular place but 't is such which is extensive to all the King's People The word Consuetudo might have been added 1 Inst 182. but it imports no more than Lex for Custom it self is Law If the Custom of Merchants had been left out the Defendant had then pursued his Covenant for if a Man agrees to pay Mony to such a person or his Assigns and he appoints the payment to another a tender to that person is a good performance of the Covenant But the Court were of Opinion that this was not a good Plea Panton versus the Earl of Bath A Scire Facias to have Execution of a Iudgment obtained in the Court of Oliver late Protector of England and the Dominions and Territories thereunto belonging Where the Pleading is good in substance tho' there is a small variation it will not hurt and in reciting the Iudgment 't is said that it was obtained before Oliver Protector of England and the Dominions thereunto belonging leaving out the word Territories And upon a Demurrer Mr. Pollexfen held this to be a variance Yelv. 212. Orde versus Moreton and like the Case where a Writ of Error was brought to remove a Record in Ejectment directed to the Bishop of Durham setting forth that the Action was between such Parties and brought before the said Bishop and seven other persons naming them and the Record removed was an Ejectment before the Bishop and eight others so that it could not be the same Record which was intended to be removed by the Writ E contra E contra It was said suppose the word Scotland should be left out of the King's Title would that be a variance The Iudicature in this Case is still the same and the Pleading is good in Substance and of that Opinion was the whole Court Hyley versus Hyley HYley had Issue W. Where the Reversion in Fee shall pass in a Will by the words viz. Remaining part of my Estate his eldest Son who had Issue Peter Charles John He by Will devised 1000 l. to his eldest Son and several parcels of Land to other Legatees Then he gave to Peter Lands in Tail Male To John a Mansion House now in question in Tail Male He devised another House to his Grandson Charles in like manner And all the rest and remaining part of his Estate he devised to his three Grandsons equally to be divided amongst them that only excepted which he had given to Peter Charles and John and to the Heirs of their Bodies whom he made Executors Then by another Clause he devised viz. That if either of his Executors die without Issue then the part or parts of him so dying shall go to the Survivor or Survivors equally to be divided John the youngest Grandson dyed without Issue and the question was whether the Reversion of his House shall be divided between his surviving Brothers or descend to his Heir And it was adjudged that the Exception in the Will did comprehend the Reversion in Fee and that it did not pass but without such an Exception it had passed * Allen 28. as where a Man devised his Mannor to another for years and part of other Lands to B. and his Heirs and all the rest of his Lands to his Brother in Tail it was held that by these words the Reversion of the Mannor did pass Anonymus NOTA. An Infant having entred into a Statute brought an Audita Querela to avoid it he was brought into the Court and two Witnesses were sworn to prove his Age and then his Appearance and Inspection were recorded he was bound in this Case with two other persons for 1600 l. and had no more than 200 l. for his share Lydcott versus Willows IN Ejectment A special Verdict was found viz. Devise of an Hereditament carries the Reversion in Fee that the Testator being seized in Fee of certain Houses in Bedfor-Bury and in Parker's Lane did by Will devise his Houses in Parker's Lane to charitable Vses then he gave several specifick Legacies to several persons named in the said Will and then he devised his Houses in Bedford-Bury to Edward Harris and Mary his Wife for their Lives then follow these words viz. The better to enable my Wife to pay my Legacies I give and bequeath to her and her Heirs all my Mesuages Lands Tenements and Hereditaments in the Kingdom of England not before disposed of c. The Question was whether this Devise would carry the Reversion of the Houses in Bedford-Bury to his Wife Adjudged that it did not but that it ought to go to the Heir of the Testator who was Plaintiff in this Case It being found that Harris and his Wife were dead and that the Wife who was Executrix had sufficient Assets to pay the Legacies without the Reversion But Iustice Powel was of another Opinion for that the word Hereditament imports an Inheritance and if it had devised thus viz. the Inheritance not before disposed of the Reversion had passed Afterwards a Writ of Error was brought in the Exchequer-Chamber upon this Iudgment 2 Vent 285. and according to the Opinion of Iustice Powel the Iudgment was reversed Nota. A Rule of Court was made that no Certiorari should go to the Sessions of Ely without Motion in Court or signing of it by a Iudge in his Chamber But Mr. Pollexfen insisted that the Sessions there did not differ from other Courts and Franchises for the inferior Courts in London are of as large a Iurisdiction as any and yet a Certiorari goes to them and so it ought to go to Ely for 't is the Right of the Subject to remove his Cause hither Their course in the Royal Franchise of Ely is to hold the Sessions there twice a year viz. in March and September in which two Months the Iudges are seldom in Town and if this Court should deny a Certiorari the Court of Common Pleas would grant it Attorney General contra This Franchise of Ely is of greater Priviledge and Authority than any inferior Court for it hath many Regalia though 't is not a County Palatine A Certiorari will not lie to the Grand Sessions nor to a County Palatine to remove Civil Causes 't is true it lyeth to remove Indictments for Riots and this Franchise being truly called Royal hath equal priviledge with a County Palatine and therefore a Certiorari will not lie But no Rule was made Osborn versus Steward TRespass Distress for an Heriot where it may be taken The Case upon the Pleadings was this viz. A Lease was made of Land for 99 years if Margery and Dorothy Upton should so long live reserving a yearly Rent and an Heriot or 40 s. in lieu thereof after the death of either of them Provided that no Heriot shall be paid after the death of Margery living
Indebitatus Ass will lye for a Fine upon an Admission c. That a Fine was due to him for an admission That upon the death of the said Lord the Manor descended to W. as his Son and Heir who died and the Plaintiff as Executor to the Heir brought an Indebitatus Assumpsit for this Fine He declared also that the Defendant was indebted to him in 25 l. for a reasonable Fine c. The Plaintiff had a Verdict and entire Damages and it was now moved in arrest of Iudgment that an Indebitatus will not lie for a Customary Fine because it doth not arise upon any Contract of the Parties but upon the Tenure of the Land for upon the death of the Lord there is a Relief paid for there must be some personal Contract to maintain an Action of Debt or an Indebitatus Assumpsit 2 Cro. 599. Jones 339. and therefore it was held that where the Plaintiff locasset a Ware-house to the Defendant he promised to pay 8 s. per Week An Assumpsit was brought for this Rent and a Verdict for the Plaintiff And a Motion was made in Arrest of Iudgment that this was a Lease at Will and the weekly payment was in the nature of a Rent and it was agreed that an Assumpsit would not lie for a Rent reserved because it sounds in the Realty but because it was only a Promise in consideration of the occupying of the Warehouse the Action was held to be well brought 2. Where the Cause of an Action is not grounded upon a Contract but upon some special Matter there an Indebitatus Assumpsit will not lie and therefore it will not lie upon a Bill of Exchange or upon an Award or for Rent though there is a Privity both of Contract and Estate without a special Assumpsit E contra E contra It was argued that the Action lies for though a Fine savours of the Realty yet 't is a certain Duty In all Cases where Debt will lie upon a simple Contract there an Assumpsit will lie likewise 't is true this doth concern the Inheritance but yet 't is a Contract that the Tenant shall be admitted paying the Fine It hath been also maintained for Mony had and received out of the Office of Register for the Plaintiffs use and for Scavage Mony due to the Mayor and Commonalty of London 3 Keb. 677. which is also an Inheritance 'T is a Contract implyed by Law and therefore the Action is well brought Afterwards in Michaelmas Term 1 Willielmi Mariae by the Opinion of Iustice Dolben 2 Leon. 79. Eyre and Gregory Iudgment was given for the Plaintiff But the Chief Iustice was of another Opinion for he held that if the Defendant had died indebted to another by Bond and had not Assets besides what would fatisfie this Fine if the Executor had paid it to the Plaintiff it would have been a Devastavit in him Suppose the Defendant promiseth that in consideration that the Plaintiff would demise to him certain Lands that then he would pay the Rent If the Defendant pleads Non Assumpsit Cro. Car. Acton versus Symonds the Plaintiff must prove an express Promise or be Non suit Also here is no Tenure or Custom set out Yet by the Opinion of the other three Iustices the Plaintiff had his Iudgment Rex versus Johnson INformation upon the Statute of 29 30 Car. 2. cap. 1. Pardon after a Verdict for the King excuseth the Forfeiture prohibiting the Importation of several French Commodities and amongst the rest Lace under the Penalty of 100 l. to be paid by the Importer and 50 l. by the Vendor and the Goods to be forfeited The Information sets forth that a Packet containing so many yards of Lace was imported by the Defendant from France and that he did conceal it to hinder the Seisure and that he did privately sell it contra formam Statuti Vpon Not-Guilty pleaded the King had a Verdict and on the 2d of October there came forth a general Pardon in which were these Words viz. That the Subjects shall not be sued or vexed c. in their Bodies Goods or Chattels Lands or Tenements for any Matter Cause or Contempt Misdemeanour Forfeiture Offence or any other thing heretofore done committed or omitted against us Except all Concealments Frauds Corruptions Misdemanours and Offences whereby we or our late Brother have been deceived in the Collection payment or answering of our Revenues or any part thereof or any other Mony due or to be due to us or received for us or him and all Forfeitures Penalties and Nomine Poena's thereupon arising and all Indictments and Informations or other Process and Proceedings now depending or to be depending thereupon The Question now was whether this Forfeiture was excused by this Pardon The Attorney General argued that it was not because an Interest is vested in the King by the Iudgment and that no particular or general Pardon shall divest it without words of Restitution So was Tooms's Case who had Iudgment against another 1 Sand. 361. and then became Felo de se his Administrator brought a Scire Facias quare Executionem non haberet The Debtor pleaded that after the Iudgment the Intestate hanged himself which was found by the Coroners Enquest returned into this Court. The Plaintiff replied the Act of Pardon But it was adjudged for the Defendant for when the Inquisition was returned then the Debt was vested in the King which could not be divested without particular words of Restitution and which were wanting in that Act of Pardon The most proper word in the Body of this Pardon which seems to excuse the Defendant is the word Offence but the same word is likewise in the Exception viz. Except all Offences c. in collecting or paying of Mony due to us and all Forfeitures c. Now the concealing of forfeited Goods from Seisure is an Offence excepted for 't is a remedy for the King's Duty of which he was hindred by the Concealment 'T is true the first part of the Pardon excuseth all Misdemeanours comitted against the King in his standing Revenue but this Exception takes in all Concealments and Frauds in answering of the Revenue and this Information is principally grounded upon Fraud 5 Co. 56. so that the Exception ought to be taken as largely for the King as the Pardon it self to discharge the Subject No Fraud tending to the diminution of the Revenue is pardoned for it excepts not only all Concealments in collecting the Revenue but other Mony due or to be due to the King If therefore when the King is entituled by Inquisition Office or Record there must be express and not general words to pardon it and since this Fact was committed before the Pardon came out and so found by the Iury whose Verdict is of more value than an Enquest of Office so that the King by this means is entituled to the Goods by Record
quarter for by such means Diseases may be brought into a Family and a Man hath no security either for his Goods or Mony This was the Opinion of Iustice Twisden in Coutrell's Case Sid. 29. and it seems to be very natural and therefore the chief reason why power was given by the Statute to the Overseers to raise mony was that they might place poor Children to such who were willing to take them for Mony for otherwise they might compel a Man to receive his Enemy into his Service He relied on the Case of the King and Price Hillary 29 and 30th of Car. II. which was an Order of the like nature moved to be quashed And Iustice Twisden said in that Case that all the Iudges of England were of Opinion that the Iustices had not such a Power and therefore that Order was quashed 'T is plain that by the Statute of the 43 Eliz. E contra the Iustices may place out poor Children where they see it convenient and so the constant practice hath been so is the Resolution of the Iudges in Dalton which was brought in by the Lord Chief Iustice Hyde but denied so to be by Iustice Twisden for no other reason but because Iustice Jones did not concur with them In Price 's Case this matter was stirred again but there hath been nothing done pursuant to that Opinion Since then the Iustices have a power to place out poor Children 'T is no Objection to say that there may be an inconvenience in the exercise of that power by placing out Children to improper persons for if such things are done the Party hath a proper remedy by way of Appeal to the Sessions Three Iustices were of Opinion that the Iustices of Peace had such a Power and therefore they were for confirming the Order and Iustice Dolbin said it was so resolved in the Case of the King and Gilliflower in the Reign of King James the first Foster being then Chief Iustice tho' the Iudges in Price 's Case were of another Opinion The Chief Iustice was now likewise of a different Opinion for the Statute means something when it says that a Stock shall be raised by the Taxation of every Inhabitant c. for putting out of Children Apprentice There are no compulsory words in the Statute for that purpose nor any which oblige a Master to take an Apprentice and if not the Iustices have not power to compel a Man to take a poor Boy for possibly such may be a Thief or Spy in the Family But this Order was quashed for an apparent fault which was that the Statute has entrusted the Churchwardens and Overseers of the Poor by and with the Approbation of two Iustices to bind Apprentices c. And the Churchwardens are not mentioned in this Order DE Term. Sancti Hill Anno 1 Gulielmi Mariae Regis Reginae in Banco Regis 1689. Thirsby versus Helbot DEBT upon a Bond for performance of an Award Award void where a person who is a Stranger to the Submission is ordered to be a Surety Vpon Nullum Arbitrium pleaded the Plaintiff replyed and shewed an Award made which amongst other things was that the Defendant should be bound with Sureties such as the Plaintiff should approve in the Sum of 150 l. to be paid to him at such a time and that they should seal mutual Releases and assigned a Breach in not giving of this Bond. There was a Verdict for the Plaintiff and now Serjeant Pemberton moved in arrest of Iudgment that this was a void Award because 't is that the Defendant shall be bound with Sureties c. and then Releases to be given now the Sureties are Strangers to the Submission and therefore the Defendant is not bound to procure them He relied upon the Case of Barns and Fairchild 1 Roll. Abr. 259. which was an Award that all Controversies c. should cease and that one of the Parties should pay to the other 8 l. and that thereupon he should procure his Wife and Son to make such an Assurance c. this was held to be void because it was to bind such persons who were not Parties to the Submission Tremain Serjeant contra E contra That Cause doth not come up to this at the Barr because by this Award the Party was to sign a general Release whether the Defendant paid the Mony or not But the Court was of Opinion that the Award was void because it appointed the Party to enter into a Bond with such Sureties as the Plaintiff shall like and Releases then to be mutually given Now if the Plaintiff doth not like the Security given then he is not to seal a Release and so 't is but an Award of one side Savier versus Lenthal ASsisa ven ' recogn ' si Willielmus Lenthal Armiger Henricus Glover Armiger Johannes Philpot Generosus Thomas Cook Generosus Samuel Ellis Generosus injuste c. Assize disseisiverunt Thomam Savier de libero tenemento suo in Westm infra triginta annos c. Et unde idem Thomas Savier per Jacobum Holton Attornatum suum queritur quod disseisiverunt eum de officio Marr ' Maresc ' Domini Regis Dominae Reginae coram ipso Rege Regina cum pertin ' c. The Cryer made Proclamation and then called the Recognitors between Thomas Savier Demandant and William Lenthal Tenant who were all at the Bar and severally answered as they were called Then Mr. Goodwin of Greys-Inn arraigned the Assize in French but the Count being not in Parchment upon Record the Recognitors were for this time discharged and ordered to appear again the next day But the Council for the Tenant relied on the authority in Calvert's Case that the Title ought to be set forth in the Count Plo. Com. 403. 4 E. 4.6 which was not done now and therefore the Demandant ought to be nonsuited But the Writ being returnable that day was ex gratia Curiae adjourned to the Morrow afterward and if the Demandant did not then make a Title he must be nonsuited The next day the Iury appeared Then the Cryer called Thomas Savier the Demandant and then the Tenants and afterwards the Recognitors and the Assize being arraigned again the Demandant set forth his Title Then Sir Francis Winnington of Council for Mr. Lenthal one of the Tenants appeared after this manner Vouz avez icy le dit Williem Lenthal jeo prye oyer del Brief del Count. Then the other Tenants were called again three times and they not appearing Process was prayed against them Doe versus Dawson BAil was put in to an Action brought by the Plaintiff Bail liable if the Principal had two Terms after an Injunction dissolved and before he declared the Defendant obtained an Injunction to stay Proceedings at Law which was not dissolved for several Terms afterwards Then the Injunction was dissolved and the Plaintiff delivered his Declaration and had Iudgment by default
and now he brought a Scire Fac. against the Bail who pleaded that no Declaration was delivered or filed against the Principal within two Terms after the Action commenced and the Bail entred and upon a Demurrer the Plaintiff had Iudgment against them for the Bail are liable so as the Principal in the Action declare soon after the Injunction dissolved and it s no fault in the Plaintiff that he did not declare sooner for if he had he would have been in contempt of the Court of Chancery for a Breach of the Injunction Anonymus A Writ of Error was brought to reverse a Recovery suffered in the grand Sessions of Wales Error to reverse a Recovery there must be a Scire Fac. against the Heir and Tertenants Dyer 321. The Question now was whether there ought to be a Scire Fac. against the Tertenants and the Heir It was said that t is discretionary in the Court and that the first Case of this nature was in my Lord Dyer where a Writ of Error was brought in B. R. to reverse a Fine levyed in the County Palatine of Chester and a Scire Facias was brought against the Heir but not against the Tertenants But the Heir in this Case is an Infant so that if he be admitted to be a Defendant he ought not to appear during his Minority and there is no remedy till his full Age. Curia 'T is not necessary in point of Law but it seems to be the course of the Court and that must be followed and 't is reasonable it should be so because the Errors upon a Recovery should not be examined before all the Parties are in Court therefore there should be a Scire Facias against the Heir and the Tertenants Sid. 213. Lambert versus Thurston TRespass Quare vi armis clausum fregit c. Trespass Quare vi Armis lies for small Damages which the Plaintiff had laid to his Damage of 20 s. The Defendant demurred to the Declaration and for cause shewed that B. R. hath not cognizance either by the Common Law or by the Statute of Gloucester to hold Plea in such an Action where the Damages are laid to be under 40 s. But the Court were of another Opinion That an Action of Trespass Quare vi armis will lie here let the Damage be what it will So the Plaintiff had Iugment DE Termino Paschae Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Whitehal versus Squire TRover for a Horse What shall be a Conversion what not the Defendant pleaded Not Guilty and a special Verdict was found viz. That John Mathers was possessed of this Horse who on the 4th day of December in the first year of King James the II. put him to Grass to the Defendant who kept him till the first day of May following That John Mathers died Intestate and before Administration was granted the Plaintiff desired the Defendant to Bury the said Mathers and that he would see him satisfied for his Expences and accordingly the Defendant did Bury him Then the Plaintiff gave this Horse to the Defendant in part of satisfaction for the Charges of the Funeral and a Note under his Hand to pay him 23 l. more The Plaintiff afterwards took out Administration and brought his Action against the Defendant for this Horse and whether this was a conversion or not was the Question Iustice Dolben and Eyre held that it was not but the Chief Iustice was of another Opinion Cole versus Knight Hill 1 2. Rot. 810. SCire Fac. upon a Iudgment of 6000 l. Release by one Executor of a Legacy is not a good bar to a Sci. Fa. upon a Judgment brought by the Plaintiffs Knight and Donning as surviving Executors of John Knight against the Defendant Cole and his Wife as Executrix of John Lawford setting forth That Sir John Knight Mr. Eyre and John Knight had recover'd a Iudgment of 6000 l. against John Lawford That John Knight survived who made his Will and appointed John Kent Thomas Knight and William Donning to be his Executors that he died the Debt and Damages not being satisfied that they the said Knight and Donning proved the Will that John Kent died and that John Lawford made his Will and appointed his Daughter Mary now the Wife of Thomas Cole to be sole Executrix and soon after departed this Life that Cole proved Lawford's Will and that the Debt was not yet paid The Defendant Cole and his Wife pleaded a Release from Donning one of the Plaintiffs by which he acknowledged to have received of the said Cole and his Wife as Exetutrix of the last Will and Testament of John Lawford the Sum of 5 l. being a Legacy given to him by Lawford and then in general words he released the said Cole and his Wife of the Legacy and of all Actions Suits and Demands whatsoever which he had or might have against the Defendants Cole and his Wife as Executrix of John Lawford or may or can have for any matter or thing whatsoever To this Plea the Plaintiff demurred and the Question was whether the Release is a good Bar or not It was argued to be no Bar for it being given upon the receipt of the Legacy is tied up to that only and shall not be taken to release any other thing If a Man should receive 10 l. and give a Receipt for it and doth thereby acquit and release the person of all Actions Debts 2 Roll. Abr. 409. Duties and Demands nothing is released but the 10 l. because the last words must be limited to those foregoing 'T is no new thing in the Law for general words to be restrained by those which follow as for instance if a Release be of all Errors Actions Suits and Writs of Error whatsoever Het 15. it hath been held that an Action of Debt upon a Bond was not released but only Writs of Error And this seems to be the intent of the Parties here that nothing but the Legacies should be released and therefore those general words which follow must be confined to the true meaning and intention of him who gave the Release So 't is if a Man promise to pay 40 s. Yelv. 156. to another during Life a Release of all Quarrels Controversies and Demands which he had or may have will not discharge this Annuity because the Execution of the Promise was not to be 'till the Rent should be due So likewise a Release of all Demands will not discharge a growing Rent 1 Sid. 141. 2. If this should be a good Release it discharges only such Actions which he hath in his own Right for by the words all Actions which he had are released Cro. Eliz. 6. 1 Leon. 263. now if an Executor grant omnia bona sua the Goods which he hath as Executor do not pass E contra E contra It was argued that this is a good Bar for by
the first words the Legacy is released then the subsequent words viz. all Actions Suits and demands whatsoever which he had against the Defendant as Executor of Lawford must mean something 'T is true where general words are at the beginning of a Release and particular words follow if the general words agree with those which are particular the Deed shall be construed according to the special words But where there are such words at first and the conclusion is with general words as 't is in this Case both shall stand for the Rule is Generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa 8 Co. 154. b. These words do also Release not only such Actions which he had in his own Right but also as Executor to Mr. Lawford If a Man hath a Lease in right of his Wife as Executrix to her former Husband and he grants all his Right and Title therein by this Grant the Right which he had by his Wife doth pass for the word His doth imply a propriety in possession But per totam Curiam Curia Iudgment was given for the Plaintiff If an Executor hath Goods of the Testators and also other Goods in his own Right and then grants omnia bona sua in strictness the Goods which he hath as Executor do not pass because they are not bona sua but so called because of the Possession which he hath and therefore it must be a great strein to make general words which are properly applicable to things which a Man hath in his own Right to extend to things which he hath as Executor It was never the intent of the Party to release more than what he had in his own Right and that appears by the Recital of the Legacy of 5 l. and therefore the words which follow must have a construction according to the intent of Donning at the time of the making the Release and shall be tied up to the foregoing words and then nothing will be discharged but the Legacy As if a Lease for years be made Dyer 255. and the Lessor enters into a Bond that he will suffer the Lessee quietly to enjoy during the Term without trouble of the Lessor or any other person if an Entry should be made upon the Lessee without the procurement or knowledge of the Lessor the Condition is not broken for the last words are tied up to the word suffer If the Legacy had not been released by particular words it would not have been discharged by a Release of all Actions and Demands whatsoever and therefore there would be a great inconvenience if these general words should be construed to Release any thing besides this Legacy for suppose there are two Executors and one refuseth to Administer but meeting with a Debtor of the Testator gives him a Release of all Actions will this amount to an acceptance of the Administration Certainly it will not The words in this Case are not of that extent as to Release Actions as an Execuror for 't is a Release which goeth to the right 'T is like the Case where one of the Avowants released the Plaintiff after the taking of the Cattel 1 Roll. Rep. 246. which was adjudged void upon a Demurrer because he had not then any Suit or Demand against the Plaintiff but had distreined the Beasts as Bayliff and in right of another Iustice Dolben cited a Case adjudged in B. R. in the year 1669. it was between Stokes and Stokes The Plaintiff released all which he had in his own Right there was a Bond in which his Name was used in Trust for another and afterwards he brought an Action of Debt upon that Bond to which the Release was pleaded The Plaintiff replied that the Release was only of all such Actions which he had in his own right and not such which he had in the right of another upon this they were at Issue and the Plaintiff had a Verdict and Mr. Sympson moved in Arrest of Iudgment that this Bond must be in his own Right But the Court affirmed the Iudgment Anonymus AN Action on the Case was brought for these words Words where actionable without a Colloquium viz. He stole the Colonel's Cupboard-Cloth It was made a Question whether these words were actionable there being no precedent discourse laid in the Declaration either of the Colonel or his Cupboard-Cloath But the Court held the words actionable for 't is a charge of Felony and if such words as now laid in this Declaration are not actionable any person may be scandalized for 't is and must be actionable to say of a Man that he stole my Lord's Horses or the Parson's Sheep tho' it doth not appear to what Lord or Parson they did belong Rex versus Silcot THE Defendant was convicted before a Iustice of the Peace Conviction for keeping a Gun not having a 100 l. per Annum and doth not say when 33 H. 8. c. 6. upon the Statute of H. 8. for keeping of a Gun and upon proof it did appear that he had not 100 l. per Annum The Record of the Conviction was removed into B. R. and this Exception was taken to it viz. non habuisset 100 l. per Annum but doth not say when for it may be that he had one hundred pound per Annum at the time when he kept a Gun but not when he was Convicted It was answered that the words non habuisset shall relate to all times past and is as much as to say nunquam habuit and the conclusion being contra formam Statuti must explain such words which seem to be doubtful This was compared to the Case where Debt was brought upon the Statute of R. 1 R. 3. c. 3. 3. for taking away of Goods before the Plaintiff was convicted of the Felony laid to his charge contra formam Statuti he being only committed upon suspicion now though he did not alledge that the Goods were taken Cro. Eliz. 749. for this cause it shall be intended they were so taken when no other cause is shewed Curia This is a conviction before a Iustice of the Peace and therefore the time when the Offence was committed should be certainly alledged viz. that the Defendant praedict Anno die had not 100 l. per Annum for which reason it was quashed Bisse versus Harcourt Hill 1 Gulielmi Rot. 217. THE Plaintiff brought an Action for 400l Replication not well concluded for so much Mony had and received of him by the Defendant The Defendant pleaded an Attainder of High Treason in Abatement and therefore ought not to answer the Declaration The Plaintiff replied that after he was Attainted and before this Action brought he was pardoned and concludes thus Unde petit Judicium dampna sua The Defendant demurs and for cause shewed Rast Ent. 663. b. 681. Co. Ent. 160. that the Replication is not well concluded for dampna sua
long a Man may live in one of these ancient Houses Such a Custom might be good in point of Tenure for it might have a reasonable commencement between Lord and Tenant but this cannot be good as laid in this Declaration for several Reasons 1. Because 't is not alledged that the Defendants of right ought to keep a Boat there or that it was necessary for them to be always attending for possibly it might require the use of skilful Men and therefore in all Actions brought for not repairing of Ways 't is alledged that the Defendant reparare debuit 2. Because it brings a Charge without any recompence 8 E. 4.18 Br. Tit. Customs pl. 46. and this must be very unreasonable 'T is true that a Custom for Fishermen to dry their Nets upon another Man's Ground is good which may seem to be a Charge upon the Land without any Reward but the reason is because the catching of Fish is for the publick benefit and every man may have advantage by it A Custom to have solam separalem pasturam hath been formerly doubted whether good or not but 't is now held to be good because the Lord of the Soil might have some other Recompence for it 3. Because 't is unlimited for the Tenants may pass and repass ad libitum according to this Custom but it ought to be laid for their necessary occasions for otherwise the Defendants may be deprived of their Freehold because the Tenants may always keep the Boat in use The 2d Point was not much insisted on which was as to the matter of the Plea only it was said that it was not so well to take away the whole Prescription that the Plea might have been good if it had been quousque the Bridge fall or decayed then the Prescription doth revive again The 3d. Point Then supposing the Declaration to be sufficient yet as this is upon the Record the Plaintiff could not have this Action because he had set forth this to be a publick and common Ferry for all People to pass and that he was hindred but doth not shew any particular damage and therefore can have no cause of Action 'T is like the Case of a common High-way which is out of repair 27 H. 8. 27. a. 1 Inst 56. Moor 108. Cro. Eliz. 664. 5 Co. 104. for which no man can bring an Action unless he hath a particular damage or loss more than the rest of the People passing that way but the Party ought to be indicted and this is to prevent multiplicity of Suits for if one man may have an Action every person traveling that way may have the like Another Exception was taken to the Declaration viz. that all the Custom is laid to be for the Inhabitants of an ancient Vill to pass Toll-Free from Ferry-Lane to Adventurers-Bank and they do not alledge that Bank to be within the Vill. Those who argued for the Plaintiff held this to be a good Custom E contra as set forth by him and as such 't is not confined to the same Rules with a Prescription which must have a lawful commencement but it is otherwise in a Custom for 't is sufficient if it be certain and reasonable The Cases cited on the other side are not to this purpose because they concern only such Customs which relate to some Interest or profit in the Land of another person but this Custom is only in a matter of exemption and easment This was the very difference taken by the Iudges in Gatewood 's Case 6 Co. where it was held to be a good Custom for every Inhabitant of a particular Town to have a Way over such Lands to go to Church or Market because this was matter of easement and no profit Now a Passage over a River is no more than a way and may be tied up to one or more persons according to their comorancy Since therefore no Interest is claimed by the Plaintiff but only an easment this Prescription need not be laid in the Owners but in the Inhabitants of the Vill of Littleport It may be compared to a Case where a Custom was laid for the Inhabitants of a Town to pay a Modus in discharge of Tythes Hob. 118. Yelv. 163. this was held good because it was by way of discharge in the persons Lands without claiming any profit in that of another 'T is also like the common Case of a Market when a Man has pitched his Stall there no person can remove it for he hath a right ratione comorantiae Then as to the first Objection upon the first Point That a Custom to pass and repass ad libitum cannot be good it was answered this passage was in the nature of a High way over which a Man may pass as often as he will and therefore 't is well enough as laid in the Declaration 2. As to the Objection that it ought to be laid in some person and not in the Inhabitants it was said this was an easment to the Plaintiff and no such thing can be to one man but it makes another a Crespasser and 't is no Interest in the Plaintiff to be discharged of a Charge A Custom to grind at the Lords Mill discharged of Toll rules this Case for is it not as much charge for a Lord of a Mannor to keep a Mill as for the Defendant to keep a Boat If the Plaintiff had prescribed then this had come within the the Rules of Gatewood 's Case But he hath alledged a Custom and when such Allegations are made they ought not to be too narrowly searched for No reason can be given why an Infant at 15 years of Age shall be capable to make a Feoffment in one Town and not in another 18 Ed. 4.3 3. Then as to the third point that this being laid to be a Common Ferry the Plaintiff ought to shew some special damage to maintain an Action To which it was answered that the right was on the Plaintiff's side and that was sufficient to maintain the Action 'T is not like the Case of a Common-High-way as mentioned on the other side because this Action is confined to Littleport alone and no Man is intituled to it but such who inhabit that Vill so that every Man cannot bring an Action As to the Exception to the form of the Declaration that Adventurers-Bank is not laid to be in the Vill it was said that the Plaintiff only claimed a right of passage over the River which is laid to be in the Vill of Littleport 2 Cro. 555 557. the Bank is only the terminus ad quem 't is like the Case where the Defendant covenanted to repair a Mill and the Water-courses in a Parish and also the Banks belonging to the Mill in which Case the Plaintiff had Iudgment tho' he did not shew in what Vill the Banks were because it shall be intended to be in the same Vill where the Mill was Afterwards in Trinity Term
the Neglect in this Case was in the Servant the Action may be brought against all the Owners for it is grounded quasi ex contractu though there was no actual Agreement between the Plaintiff and them And as to this purpose 2 Sand. 345. Hob. 206. Hutt 121. 1 Mod. 198. 't is like the Case where a Sheriff levies Goods upon an Execution which are rescued out of the hands of his Bailiffs this appearing upon the Retorn an Action of Debt will lie against him though there was no actual Contract between the Plaintiff and him for he having taken the Goods in Execution there is quasi a Contract in Law to answer them to the Plaintiff 2. As to the second Point it was ruled that Not-Guilty was a good Plea to any Mis-feazance whatsoever and that a Plea in Abatement viz. that the rest of the Owners super se susceperunt simul cum Defendente absque hoc quod Defendens super se suscepit tantum had been no more than the general Issue 3 Cro. 554. Vering versus More but he hath not pleaded thus Iustice Dolben agreed that the Action ought to be brought against all the Proprietors it being upon a Promise created by Law but he was Opinion that this Matter might have been pleaded in Abatement Gold versus Strode AN Action was brought in Somersetshire and the Plaintiff recovered and had Iudgment and died Intestate Gold the now Plaintiff took out Letters of Administration to the said Intestate in the Court of the Bishop of Bath and Wells and afterwards brought a Scire Facias upon that Iudgment against the Defendant to shew Cause quare Executionem habere non debeat He had Iudgment upon this Scire Facias and the Defendant was taken in Execution and escaped An Action of Debt was brought by the said Gold against this Defendant Strode who was then Sheriff for the Escape and the Plaintiff had a Verdict It was moved in arrest of Iudgment and for Cause shewen that if the Administration was void then all the dependencies upon it are void also and so the Plaintiff can have no Title to this Action Now the Administration is void because the entring upon Record of the first Iudgment recovered by the Intestate in the County of Middlesex where the Records are kept made him have bona notabilia in several Counties and then by the Law Administration ought not to be committed to the Plaintiff in an inferior Diocess but in the Prerogative Court Curia The Sheriff shall not take advantage of this since the Iudgment was given upon the Scire Fac. and the Capias ad satisfaciendum issuing out against the then Defendant directed to the Sheriff made him an Officer of this Court and the Iudgment shall not be questioned by him for admitting it to be a Recovery without a Title yet he shall take no advantage of it till the Iudgment is reversed 'T is not a void but an erronious Iudgment and when a person is in execution upon such a Iudgment and Escapes and then an Action is brought against the Goaler or Sheriff 8 Co. 141. and Iudgment and Execution thereon though the first Iudgment upon which the party was in execution should be afterwards reversed yet the Iudgment against the Goaler being upon a collateral thing executed shall still remain in force The Ca. Sa. 21 E. 4. 23. b. Cro. El. 164. Moor 274. 2 Cro. 3. 1 Rol. Abr. 809 God b. 403. 2 Leon. 84. was a sufficient authority to the Sheriff to take the Body though grounded upon an erronious Iudgment and that Execution shall be good till avoided by Error and no false Imprisonment will lie against the Goaler or Sheriff upon such an Arrest Coghil versus Freelove In the Common-Pleas DEBT for Rent was brought against the Defendant as Administratrix of Thomas Freelove her late Husband deceased Debt for Rent incurred after an assignment by an Administrator for the privity of Contract is not determined by the death of the intestate 2 Vent 209. in which Action the Plaintiff declared That on the 1st of May 21 Car. 2. he did by Indenture demise to the said Thomas Freelove one Messuage and certain Lands in Bushey in Hertfordshire Habendum from Lady day then last past for and during the term of 21 years under a yearly Rent that by virtue thereof he entred and was possessed That on the 7th of March 1685. the said Thomas Freelove died Intestate and that the next day Administration of his Goods and Chattels was granted to the Defendant and that 78 l. was in arrear for Rent due at such a time for which this Action was now brought in the Detinet The Defendant confessed the Lease prout c. and the death of the Intestate and that the Administration was granted to her but saith that before the Rent was due she by Articles made between her of the one part and Samuel Freelove of the other part did assign the said Indenture and all her right title and interest thereunto and which she had in the Premisses unto the said Samuel Freelove who entred and was possessed that the Plaintiff had notice of this Assignment before he brought this Action but nothing was said of his acceptance To this Plea the Plaintiff demurred and the Defendant joined in Demurrer And Iudgment was given by the Opinion of the whole Court for the Plaintiff against the Authorities following Viz. Cro. Eliz. 555. 'T is true in Overton and Sydal 's Case it was resolved that if an Executor of Lessee for years assign his Interest Debt for Rent will not lye against him after such Assignment the reason there given was because the personal privity of the Contract is determined by the death of the Lessee as to the Debt it self and for the same reason the Executor shall not be lyable to the Rent after the death of the Lessee if such Lessee doth make an assignment of his Term in his life-time My Lord Coke mentioning this Case 3 Co. 24. a. in his third Report affirms that it was resolved by Popham Chief Iustice and the whole Court that if an Executor of a Lessee for years assign his Interest Debt will not lye against him for Rent due after such an Assignment Pop. 120. but my Lord Popham himself in Reporting that very Case tells us he was of another Opinion which was that so long as the Covenant in the Lease hath the nature and essence of a Contract it shall bind the Executor of the Lessee who as well to that as to many other purposes represents the person of the Testator and is privy to his Contracts T is true my Lord Popham held in that Case that the Action did not lye but because it was brought by the Successor of a Prebendary upon a Lease made by him in his life-time who being a single Corporation the personal Contract was determined by his death But the same Case reported by others Moor 251.
an Inn-Keeper and that he bought Necessaries and uttered them in his House but this will not make him a Baukrupt Because Inns are of necessity and under the inspection of the publick and he cannot refuse to lodge travelling persons 2 Roll. Rep. 345. Hutt 100. 2 Roll. Abr. 64. Dalton 28. and 't is chiefly upon this account that he hath several Priviledges which other Traders have not as to detein a Horse till he is paid for keeping of it c. They are under the power of the Iustices of the Peace in the places where they are scituated for if an Inn be erected in an inconvenient place 't is a Nusance and may be suppressed by Indictment 't is the same with an Ale-house 1 Jac. c. 9. 21 Sac. c. 7. 1 Car. c. 14. and therefore several Statutes which are made to prevent Tipling and which appoint at what price Ale shall be sold have been adjudged to extend to Inn-Keepers Where a Man Buys and Sells under a Restraint and particular Limitation tho 't is for his Livelyhood yet he is not within the Statutes Inn-Keepers do not deal upon Contracts as other Traders do for a Iudge of Assize may set a price upon his Goods and if they should set a price themselves if 't is unreasonable they may be indicted for extortion what they buy is to a particular intent for 't is to spend in their Houses and tho' they get their Living by it 't is not ad plurimum for the greatest part of their Gains ariseth by Lodgings Attendance dressing of Meats and other Necessaries for their Guests Ever since the Statute of the 13th of Eliz. all the subsequent Acts relating to Bankrupts have been penn'd alike except the 21st of Jac. I. which is a little larger and takes in a Scrivener and it may still be worth the care of a Parliament to enlarge it to an Inn-Keeper but no Law now in being extends to him He is not taken notice of as a Trader within any of the Statutes of Bankrupcy he is only communis hospitator a person or Trador who buys and sells for hospitality 8 Co. Caly's Case by receiving Travellers he becomes chargable to the Publick to protect them and their Goods A Shoe-maker 1 Cro. 31. Hutt 46 47. Tanner and Baker are Trades within the Statutes but the difference between those Trades and an Inn-Keeper is plain because they use the Manufacture and thereby encrease the value as Leather is made more useful and of more value by making of it into Shoes A Farmer is not within the Statute and yet they all buy and sell for 't is necessary to their Occupation This Point was setled in Crisp and Prat 's Case but the occasion of the doubt afterwards was by the publishing of Iustice Jones 's Reports who doubted upon the particular finding of the Iury and so the Court came to be divided There is no material difference between an Inn-Keeper and the Master of a Boarding-School who buys and dresses Provisions for young Scholars and obtains Credit by his way of Living but it was never yet thought that he was within any of those Statutes Rowsby versus Manning Mich. 4 Jac. Rot. 15. DEBt upon a Bond for performance of an Award Conditional submission to an Award so as it be made by such a day and ready to be delivered to the Parties or to such of them as desire it The Defendant pleaded nullum fecerunt arbitrium c. The Plaintiff replied that after the submission and before the day appointed in the Condition the Arbitrators did make their Award by which they ordered the Defendant to pay so much Mony to the Plaintiff and so assigned the breach for non-payment c. And upon a Demurrer to this Replication Serjeant Tremaine said it was a conditional submission viz. to perform an Award so as it be made by such a day and ready to be delivered to the Parties and the Plaintiff hath not shewed that it was ready to be delivered to the Defendant which he ought to have averred If the Condition be to perform an Award between the Parties 5 Co. 103. More 642. Ita quod arbitrium praed fiat deliberetur utrique partium praed before such a day it must be delivered to all the Parties and not to one for each of them are in the danger and penalty of the Bond. E contra E contra Serjeant Thompson agreed it to be a conditional Submmission but not such as goeth to the substance of the Award it self for the conditional Words are not to the Award but to the Form of the delivering of it and therefore it should come on the Defendants side to shew that it was not ready to be delivered Curia If an Award is actually made 'tis then ready to be delivered but in this Case it must be ready to be delivered to the Parties or to such of them who desire it so it must be desired and if then denied the Party may plead the matter specially The Summission was viz. 2 Cro. 577. 2 Roll. Rep. 193. so that the Award be made ad vel antea 5 Decemb. ready to be delivered at a certain Shop in London The Plaintiff shewed an Award made at York ready to be delivered at the Shop in London this was adjudged to be a void publication and delivery because a place was appointed where it should be delivered and published viz. at the Shop in London where the Parties were to expect it and not elsewhere So it would have been if a day had been appointed on which it ought to be delivered and the day had been mistaken 2 Sand. 73. But here is neither day or place appointed for the delivery so that the Defendant ought to have desired the Award and if it had not been ready to be delivered he ought to have pleaded the Matter specially DE Term. Sancti Hill Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Mr. Leigh's Case HE brought a Mandamus to be restored to the Office of a Proctor of Doctors Commons Mandamus will not lie for the Office of a Proctor of Doctors Commons The Return was that the Court was the supreme Court of the Archbishop of Canterbury who had the Government thereof that he appointed a Iudge of the said Court who had power to alter and displace Officers that the Defendant was admitted and sworn a Proctor of the Court and took an Oath to obey the Orders thereof that part of the said Oath was That no Proctor should do any thing in that Court without the Advice of an Advocate that he had done Business without such advice in a certain Cause there depending and that he refused to pay a Tax of 10 s. imposed upon him by Order of the Court towards the Charges of the House The Questions upon this Return were viz. 1. Whether a Mandamus will lie to restore a person to the Office of a
IT lies to remove Causes and Orders from an inferior Jurisdiction where 't is not prohibited in express words by any Statute 95 2. Will not lie to the Grand Sessions nor to a County Palatine to remove Civil Causes quaere whether it lies to the Royal Franchise of Ely 230 Charter Usage shall expound ancient Charters 9 2 The Common Law doth operate with it ibid. 3. One Clause of a Charter may expound another 10 4. A Charter which establishes a Corporation must provide for a new Election in order to a Succession otherwise the Common Law will not help 13 Church See Prohibition Commitment By the Lord Chancellor and several others Dominos Concilii for a Misdemeanour whether it should not be Dominos in Concilio 213 2. Of a Peer for a Misdemeanour which amounts to a Breach of the Peace for which Sureties are to be given 214 3. When a person is brought in by a Capias for any offence he ought to plead instanter 215 Common and Commoner See Ioytenancy 4 Ioynt Action 7 Prescription 7 A Common cannot pass without Deed and if the Plaintiff sheweth a Que Estate he must produce the Deed 52 2. If a Prescription is made for a Common and doth not say for Cattle Levant and Couchant 't is not good 162 246 3. But this fault is cured by a Verdict 162 Confederacy See Indictment Condition See Infant 2. Notice 2 4. A bare denial without doing any more is no Breach of the Condition 31 2. How it differs from a Limitation 32 3. To restrain Marriage to the consent of particular persons is void ibid. 4. Where 't is of two parts in the disjunctive and both possible at the time of the Bond given and one becomes impossible afterwards by the Act of God the Obligor is not bound to perform the other part for the Condition being made for his benefit shall be taken very beneficially for him who had election to perform either part 233 5. When the Condition is but of one part 't is otherwise as if A. promise B. that if C. do not appear such a day at Westminster he will pay 20 s. C. died before the day the Mony must be paid 234 6. Condition was to pay Rent at Michaelmas or Lady-day during the Life of a Woman or within thirty days after she died after the Feast but within the thirty days the payment which was due at the Feast was discharged thereby ibid. 7. To save harmless Non damnificatus generally is a good Plea but if it be to save harmless acquit and discharge then 't is not good without shewing how acquitted and discharged 252 Confederacy See Agreement Consideration See Action on the Case Construction Where it shall be made of an Act of Parliament according to the intent of the Law-makers 33 2. Where it shall be made of an entire Sentence so as the intent of the Law may appear 220 3. Where particular words are in the first part of a Sentence and general words follow both shall stand 278 279 Contract Where an Agreement is entire to do or perform a thing for a certain Sum it shall not be apportioned pro rata for the performance of part 153 2. There must be a recompence of each side to make the Contract good 237 Copyhold and Copyholders See Baron and Feme 8 9. Lord may seize the Land of a Copyholder till a Fine is paid 222 2. A Man by Custom may assign a person to take the Profits of a Copyhold Estate during the Minority of an Infant without rendring an accompt when he comes of Age ibid. Corporation See Charter 4. In all proceedings which concern a Corporation it must be alledged that there is one and how erected whether by Grant or Prescription 6 2. Mayor hath no more Power than an Alderman in the Coporation where he is Mayor 9 3. Is not of the Quorum for electing of an Alderman 10 4. The Mayor is named in the Grant as part of the Name of the Corporation and is not of the Quorum without naming him to be so 9 10 5. He is a Mayor in respect of Reverence but not of Power 11 6. At the Common Law neither his Name or Office require his presence at the choosing of an Alderman 11 14 7. He cannot act eo nomine but by the express Power given in the Charter 12 8. Elections of Officers of a Corporation must be free 21 9. Mayor of a Corporation is no Officer at the Common Law 12 10. Original of Corporation was preservation of Trade ibid. 11. Corporation by Charter without setting forth their Duty or Office hath no Power ibid. 12. A Company in London made a By-Law that none of them should buy such a Commodity within 24 Miles of London but two Men 't is too large to bind at such a distance out of their Jurisdiction 159 Costs See Amendment 3. Trespass for breaking of a Close and impounding of Cattel and Damages given under 40 s. the Plaintiff shall have his Costs 39 2. Amendment after a Writ of Error brought Costs must be paid 113 Covenant See Local Action Where a thing is lawful at the time of the Covenant made and afterterwards prohibited by Law yet the Covenant is binding 39 2. To find Meat Drink and other Necessaries the Breach was assigned in not finding Meat Drink alia necessaria and entire Damages though this Breach was too general yet 't is good for it may be as general as the Covenant 69 3. There must be such certainty in it that if the Defendant should be sued again he may plead the former Recovery in Bar ibid. 4. Need not so much certainty in assigning a Breach upon a Covenant as upon a Bond for performance of Covenants ibid. 5. For quiet enjoyment the Breach was that a Stranger habens jus titulum and doth not say what Title for it may be under the Plaintiff himself therefore not well assigned 135 6. To make an Assignment according to an Agreement between the Partis as Council should direct whether the Council of the Plaintiff or Defendant should advise 192 7. Give grant and confirm are words at the Common Law where they shall be taken to amount to a Covenant to stand seized 237 Court Cause not to be removed out of an inferiour Court unless the Habeas Corpus is delivered to the Steward before Issue or Demurrer joyned so as 't is joyned within six Weeks after Arrest or Appearance 85 2. If the Cause is tried in an inferior Court the Steward not being an Utter Barister an Attachment shall go ibid. 3. Amerciament in a Court Leet is a Duty vested in the Lord for which he may distrain 138 4. Presentment in a Court Leet is the proper remedy when a Man is disturbed in a common Passage or Way 294 Custom See Admittance Infant 10. Prescription 8. Pleading 12. Must have nothing to support it but Usuage 133 2. 'T is made of repeated Acts ibid. 3. Must be very
certain or 't is not good 134 4. Must be taken strictly when it goes to the destruction of an Estate 224 5. A Custom that every Copyholder who leases his Land shall forfeit it doth not bind an Infant 229 6. Amongst Merchants where it must be particularly set forth 226 7. It must be certain and therefore where it was laid for an Infant to sell his Land when he can measure an Ell of Cloth 't is void for the incertainty 290 8. To have solam separalem pasturam hath been held good 291 9. Prescription must have a lawful commencement but 't is sufficient for a Custom to be certain and reasonable 292 10. Whether a Custom likewise ought to have a lawful commencement 293 D. Damages See Ejectment 3. Ioint Action 2. Trespass 2. Baron and Feme brought an Action for words spoken of the Wife and concluded ad damnum ipsorum 't is good for if she survive the Damages will go to her 120 Det See Admittance 5. Assignment 1. Iudgment 1. Quantum meruit Where 't is brought upon a Specialty for less than the whole Sum it must be shewed how the other was discharged 41 2. Whether it lies for a Fine upon an admission to a Copyhold Estate for it doth not arise upon any Contract 240 3. There must be a personal Contract or a Contract implyed by Law to maintain an Action of Debt ibid. Deceit See Action on the Case Deputy See Office 6 7 9. Devise See Tail Where it shall not be extended by implication 82 2. Where the word Estate passeth a Fee where not 45 105. 3. I give All to my Mother passeth only an Estate for Life for the Particle All is a Relative without a Substantive 32 4. To A. and the Testator's Name is omitted in the Will yet 't is good by averring his Name and proving his Intention to devise it 217 5. The Testator after several Specifick Legacies and Devises of Lands gave all the rest and remaining part of his Estate c. by those Words the Reversion in Fee passed 228 6. By the Devise of an Hereditament the Reversion in Fee passeth 229 Disseisin See Election 1. Interest 2. The Son Purchased in Fee and was disseised by his Father who made a Feoffment with Warranty the Son is bound for ever 91 2. Lessor made a Lease for Life and died his Son suffered a Common Recovery this is a Disseisin ibid. 3. Where an Estate for Life or years cannot be gained by a Disseisin ibid. 4. A wrongful Entry is never satisfied with any particular Estate nor can gain any thing but a Fee-simple 92 Distribution Before the Statute if there was but one Child he had a right of Administration but it was only personal so that if he died before Administration his Executor could not have it 62 E. Ejectment THE Demise was laid to be the 12th of Junii habendum a praed duodecimo die Junii which must be the 13th day by vertue whereof he entred and that the Defendant Postea eod 12 die Junii did Eject him which must be before the Plaintiff had any Title for his Lease commenced on the 13th day not good 199 2. De uno Messuagio sive Tenemento not good because the word Tenementum is of an incertain signification but with this addition vocat ' the Black Swan 't is good 238 3. If the Term should expire pending the Suit the Plaintiff may proceed for his Damages for though the Action is expired quoad the possession yet it continues for the Damages 249 Election Where the Cause of Action ariseth in two places the Plaintiff may choose to try it where he pleases 165 2. Tenant at Will made a Lease for years the Lessee entreth this is no disseisin but at the Election of him who had the Interest in it 197 Entry In Feoffments Partitions and Exchanges which are Conveyances at the Common Law no Estate is changed until actual Entry 297 2. Lease for years not good without Entry 297 3. Tenant for Life Remainder in Tail Male levied a Fine and made a Feoffment having but one Son then born and afterwards had another Son the eldest died without Issue the Contingent Remainder to the second was not destroy'd by this Feoffment for it was preserved by the right of Entry which his elder Brother had at the time of the Feoffment made 305 Escape Debt upon an Escape would not lie at the Common Law against the Goaler it was given by the Statute of W. 2. 145 2. The superior Officer is liable to the voluntary Escapes suffered by his Deputy unless the Deputation is for life 146 3. If an Escape is by negligence it must be particularly found 151 4. A person was in Execution upon an erroneous Judgment and escaped and Judgment and Execution was had against the Gaoler and then the first Judgment was reversed yet that against the Gaoler shall stand 325 Evidence See Witness An Affidavit made in Chancery shall not be read as Evidence but only as a Letter unless Oath is made by a Witness that he was present when it was taken before the Master 36 2. What shall be Evidence of a fraudulent Settlement ibid. 3. An Answer of a Guardian in Chancery shall not be read as Evidence to conclude an Infant 259 4. Whether the return of the Commissioners in a Chancery Cause that the person made Oath before them is sufficient Evidence to convict of Perjury 116 5. Whether a true Copy of an Affidavit made before the Chief Justice is sufficient to convict the person for the like Offence 117 6. A Verdict may be given in Evidence between the same Parties but not where there are different persons unless they are all united in the same interest 142 7. Conviction for having two Wives shall not be given in Evidence to prove the unlawfulness of a Marriage but the Writ must go to the Bishop because at Law one Jury may find it no Marriage and another otherwise 164 Exchange Ought to be executed by each Party in their Life time otherwise 't is void 135 Excommunication Stat. 5 Eliz. For not coming to the Parish Church the Penalties shall not incurr if the person hears Divine Service in any other Church 42 2. The Causes are enumerated in the Statute which must be contained in the Significavit otherwise the Penalties are not to incurr 89 Executor See Grants Notice 5. Whether an Executor de son tort can have any interest in a Term for years 91 93 2. An Executor may sell the Goods before Probate 92 3. May pay Debt upon a simple Contract before a Bond of which he had no notice 115 4. Whether an Action of Debt will lie against an Executor upon a Mutuatus 5. By what words he hath an Authority only without an Interest in the thing devised 209 210 6. He had both Goods of his Testator and of his own and granted omnia bona sua that which he hath as Executor will not pass for
4. It will lie for such words for which an Action will not 139 5. For a Riot in unduly electing of an Alderman of Bristol not being summoned by the Mayor 5 6. Exception to it viz. doth not say that 't is antiqua Villa or whether it was a Corporation by Charter or Prescription of which the Court cannot judicially take notice if not shewn 5 7. Doth not say that any Charter was granted to the City of Bristol where the Riot was supposed to be committed 7 8. Must be very exact and certain for 't is not aided by any Statute of Ieofails ibid. 9. For treasonable words preached in a Sermon viz. We have had two wicked Kings together c. whether good without some preceding discourse of the King 53 54 69 10. For Subornation of Perjury in perswading another to swear and doth not set forth that the Oath was made that it might appear that the thing sworn was false 122 11. Quashed because the words per Sacramentum duodecim proborum legalium hominum were left out ibid. 12. For using a Trade not being an Apprentice upon 5 Eliz. and doth not averr that it was a Trade used before the making of the Act 152 13. For not serving upon a Wardmote Enquest quashed for incertainty 168 14. For Perjury by the Name of A. B. de Parochia de Algate and did not shew in what County it was for which reason it was held not good 139 15. In Indictments there must be an addition to the person and place viz. To the person of what Estate and Degree he is To the place viz in what Hamlet Town Place and County he liveth 139 16. Caption was coram Justiciariis ad pacem dicti Domini Regis conservand ' and did not say nunc whether good ibid. 17. For Burglary the very day need not be set down for if it be either before or after the Offence the Jury ought to find according to the truth 141 18. 'T is sufficient to lay the Fact to be committed in Parochia c. without laying a Vill though Parish is an Ecclesiastical division 158 19. Per Sacramentum 12 praesentat ' existit modo forma sequen ' Midd. viz. Juratores pro Domino Rege praesentant it should have been praesentat ' existit quod c. and not modo forma quashed 201 20. The certainty of the Fact ought to be particularly alledged if for Murder it must be alledged that a Stroak was given 202 21. Pardon was pleaded and Judgment quod Defendens eat sine die but being convicted of Manslaughter his Goods were forfeited and though he was out of the Court by this Pardon and Judgment yet the Indictment was quashed upon a Motion for a fault in it and this was to prevent the Seisure 202 22. Two were indicted for a Confederacy one of them was acquitted and the other found guilty the acquittal of one is the discharge of the other 220 Inducement In Trover the Contract is but Inducement the Cause of Action is upon the Conversion 322 Inferior Court See Court Infant See Copyhold 2. Custom 5 7. Evidence 3. After three Proclamations in a Court Baron of a Mannor he did not come to be admitted to a Copy-hold Estate and held no Forfeiture 223 2. Had an Estate upon Condition to be performed by him and 't is broken during his Minority the Estate is gon for ever 222 224 226 3. The Law will not allow the Priviledge of Infancy to work a wrong to any body 222 226 4. Shall not be prejudiced by the Latches of another but shall be answerable for himself 222 223 5. Custom to be admitted after three Proclamations will not barr him if beyond Sea 222 6. He is not obliged to be admitted during his Infancy 223 7. His Feoffment is no Forfeiture at the Common Law ibid. 8. If he doth not present to a Church within six Months it shall lapse ibid. 9 He may be admitted to a Copy-hold but not obliged to pay the Fine during his Nonage 224 10 May be bound by acts of Necessity and by some Customs ibid. 11 Where he hath a right it shall be preserved after a Fine and Non-claim but he hath no right before admittance to a Copyhold 226 12. Cases of Coverture and Infancy are guided by the same reason of Law so are Cases of Infants and Lunaticks ibid. 13. Where he brought an Audita Querela to avoid a Statute entred into by him in his minority 229 14. A Surrender made by an Infant is void 303 15. Where Acts done by him are void in themselves where voidable 307 16. When he is made Defendant he must appear by Guardian and not by Attorny for he hath not capacity to choose one the appearance by Guardian is the Act of the Court when he is Plaintiff he may sue per Prochein Amy 236 17. Whether in Replevin one of them who made Cognizance being an Infant may do it per Attornatum it may be pleaded in Abatement 248 18. If he is Administrator he may bring an Action of Debt per Attornatum because he sueth in the right of another 248 19. Where he recovers as Plaintiff the Defendant shall not assign infancy for Error ibid. 20. Answer of his Guardian in Chancery shall not be read as Evidence at Law to conclude him 259 21. He is not capable to take a Surrender because he cannot give his assent which is an essential requisite to a Surrender 298 22. Release by an Infant Executor is no bar for it worketh the destruction of his Estate 303 23. Cannot surrender a future Interest by his acceptance of a new Lease or make an absolute Surrender of a Term by Deed 304 Information For a Forgery brought against a Coroner who inserted the Names of two persons in an Indictment upon his Enquest for a Murder whom the Jury had not found Guilty 66 2. For a Riot in breaking a Bank and diverting a Watercourse the Jury found quoad fractionem Ripae guilty and quoad Riotam not guilty for which reason the Judgment was arrested 73 3. For going Armed to terrifie the People 't is an Offence at Common Law 118 4. For forging quoddam scriptum per quod A. was bound which cannot be if the Bond was forged 104 5. For Perjury in a Deposition taken before Commissioners in Chancery whether they ought to be present to testifie that the Defendant is the same person 116 6. An Information of Perjury will not lye against a Person for Swearing to the value of Lands if not true 134 7. Upon the 5th of Eliz. against a Turkey-Merchant for imploying Men in his House to dress Cloath it was held to be exercising the Trade of a Cloath-Worker 315 Inn-Keeper See Pleading 11. Inquisition See Melius Inquirendum Found to be an Ideot per spatium octo Annorum those words are surplusage for he must be so a nativitate 44 2. Quashed because the year of the King was omitted 80 3. Taken
ought to be left out and of that Opinion was the Court and therefore a Rule was made that he might discontinue this Action without Costs Mordant versus Thorold Hill 1 2 Gulielmi Rotulo 340. THE Plaintiff brought a Scire Fac. upon a Iudgment The Case was thus Viz. Ann Thorold recovered in Dower against Sir John Thorold in which Action Damages are given by the Statute of Merton 20 H. 3. c. 1. Sir John Thorold brought a Writ of Error in B. R. and the Iudgment was affirmed Then the Plaintiff in Dower brought a Writ of Enquiry for the Damages and married Mr. Mordant and died before that Writ was executed Mr. Mordant takes out Letters of Administration to his Wife and brought a Sci. Fa. upon the Iudgment and the question was whether it would lie This depended upon the construction of the Statute of King Charles the II. which enacts That in all personal Actions 17 Car. 2. c. 8. and real and mixt the death of either party between the Verdict and the Iudgment shall not hereafter be alledged for Error so as such Iudgment be entred within two Terms after such Verdict Serjeant Pemberton insisted that this was a judicial Writ and that the Administrator had a right to it though the Wife died before the Profits were ascertained by the Writ of Enquiry 't is no more than a plain Sci. Fa. upon a Iudgment which an Executor may have and which was never yet denied though this seems to be a Case of the first Impression The Council on the other side argued that 't is true an Executor may have a Scire Facias upon a Iudgment recovered in the life of the Testator by reason only of such Recovery but this Scire Facias is brought for what never was recovered because the Wife died before any thing was vested in her for the Iudgment will stand so as to effect the Lands but not for the Damages Curia When a Statute which gives a remedy for mean Profits is expounded it ought to be according to the Common Law Now where entire Damages are to be recovered and the Demandant dies before a Writ of Enquiry executed the Executor cannot have any remedy by a Scire Facias upon that Iudgment because Damages are no duty till they are assessed Sed adjornatur DE Term. Sanctae Trin. Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Shotter versus Friend Vxor ' Hill 2 Willielmi Rot. 39. THE Plaintiff and his Wife declared upon a Prohibition setting forth Proof by one Witness good in the Spiritual Court that John Friend on the 13th of October 22 Car. 2. made his Will by which he bequeathed to Mary Friend 10 l. to be paid to her within two years after his decease and that he made Jane the Wife of the Plaintiff Shotter Executrix and dyed that the said Executrix whilst sole and unmarried paid the said Legacy to Mary Friend who is since dead that Thomas Friend the Husband of the said Mary did after her death demand this Legacy in the Consistory Court of the Bishop of Winton that the Plaintiff pleaded payment and offered to prove it by one single Witness which Proof that Court refused though the Witness was a person without Exception and thereupon Sentence was given there against the Plaintiff which Sentence was now pleaded and upon Demurrer to the Plea The Question was whether upon the whole matter the Defendant should have a Consultation or whether a Prohibition should be granted because the proof by one Witness was denied by that Court. It was argued that the Defendant should not have a Consultation because Matters Testamentary ought to have no more favour than things relating to Tythes in which Cases the Proof by one Witness hath been always held good So 't is in a Release to discharge a Debt which is well proved by a single Testimony and it would be very inconvenient if it should be otherwise for Feoffments and Leases may come in question which must not be rejected because proved by one Witness A Modus decimandi comes up to this Case upon the Suggestion whereof Prohibitions are never denied and the chief reason is because the Spiritual Court will not allow a Modus to be any discharge of Tythes of Kind The Courts of Equity in Westminster-Hall give Relief upon a Proof by one Witness so likewise do the Courts of the Common Law if the Witness is a good and credible person 'T is true a Prohibition shall not go upon a Suggestion that the Ecclesiastical Court will not receive the Testimony of a single Witness If the Question is upon Proof of a Legacy devised or Marriage or not or any other thing which originally doth lie in the Cognizance of that Court but payment or not payment is a matter of Fact triable at the Law and not determinable there if therefore they deny to take the Evidence of a single Witness a Prohibition ought to go 2 Inst 608. 2. The Sentence is no obstacle in this Case because the Plaintiff had no Right to a Prohibition until the Testimony of his Witness was denied and Sentence thereupon given and this is agreeable to what hath been often done in cases of like nature As for instance Cro. Eliz. 88. Moor 907. Prohibitions have been granted where the Proof of a Release of a Legacy by one Witness was denyed So where the Proof of payment of Cythes for Pidgeons was denied upon the like Testimony Cro. Eliz. 666. Moor 413. 2 Rol. Rep. 439. 2 Rol Abr. 300. pl. 9. 299 pl. 14 17. Yelv. 92. Latch 117. 3 Bulst 242. Hutt 22. So where a Suit was for Subtraction of Cythes and the Defendant pleaded that he set them out and offered to prove it by by one Witness but was denied a Prohibition was granted And generally the Books are that if the Spiritual Court refuse such Proof which is allowed at the Common Law they shall be prohibited There is one Case against this Opinion which is that of Roberts in 12 Co. 12 Co. 65. Rep. but it was only a bare Surmise and of little Authority Those who argued on the other side held that a Consultation shall go E contra and that for two Reasons 1. Because a Prohibition is prayed after Sentence 2. Because the Ecclesiastical Court have an original Iurisdiction over all Testamentary things As to the first Point 'T is plain that if that Court proceed contrary to those Rules which are used and practised at the Common Law yet no Prohibition ought to go after Sentence but the proper remedy is an Appeal 2. It cannot be denied but that that Court had Cognizance of the principal matter in this Case which was a Legacy and Payment or not is a thing collateral Now wherever they have a proper Iurisdiction of a Cause both that and all its dependences shall be tried according to their Law which rejects the Proof by a single Witness
Mony for putting them out which must be to such who are willing to to take them for Mony 270 Arbitrament To pay 5 l. presently and give Bond to pay 10 l. more on a day following and now to sign general Releases it shall only discharge such matters which were then depending at the time of the submission and not the Bond 264 2. A person who was a Stranger to the Submission was awarded to be a Surety 't is void 272 3. Submission was so as the Award be made c. ready to be delivered to the Parties or to such of them who shall desire it the Defendant must desire the Award and plead the matter specially and the Plaintiff need not aver that it was ready to be delivered 330 Assent See Agreement Assets Reversion in Fee Expectant upon an Estate Tail is not Assets but when it comes into possession then and not before 't is Assets 257 Assignment See Privity of Contract 2. Executor of a Lessee for years shall be liable to an Action of Debt for Rent incurr'd after an assignment of the Term for the privity of Contract of the Testator is not determined by his Death but his Executor shall be charged with his Contracts so long as he hath Assets 326 Assizes The Method of arraigning an Assize the Title must be set forth in it 273 Attornment See Bargain and Sale Ejectment of a Manor parcel in Rents and parcel in Services the Attornment of the Tenants must be proved 36 Averment See Devise 4 The consideration of a Duty ought to be precisely alledged as in an Action on the Case for a Duty to be paid for weighing Goods it must be averred that the Goods were such which are usually sold by weight 162 2. The nature of an Averment is to reduce a thing to a certainty which was incertain before 216 3. Where it may be made against the express words of a Condition 217 4. Not allowed to be made against a Record 305 B. Bail IT was demised in a Scandalum Magnatum 4 2. Writ of Error pending in the Exchequer-Chamber the principal in the Action rendred himself the Bail are discharged 87 3. Scire Facias against Bail upon a Writ of Error who plead that the Principal rendred himself before Judgment 't is not good for the Bail are liable not only to render the Body but to pay the Debt ibid. 4. Proceedings were staied by Injunction above two Terms after the Bail was put in and before the Declaration delivered which was pleaded to a Scire Facias brought against them but held not good 274 Bankrupts An Inn-keeper is not within the Statutes of Bankrupcy 327 2. 'T is not actionable to call a Man Bankrupt unless it be laid that he was a Trader at the time of the words spoken 329 3. Inn-keeper buys and sells under a Restraint of Justices and Stewards of Leets which though for a Livelihood yet cannot be a Bankrupt 329 4. Whether a Farmer or Master of a Boarding-School be within the Statutes 330 Baretry Difference between Baretry and Maintenance 97 2. 'T is not Baretry to arrest a Man without a cause ibid. 4. If one design to oppress and to recover his own right 't is Baretry 98 5. Mony may be laid out to recover the just right of a poor man and no Baretry ibid. 6. But mony may not be expended to promote and stir up Suits ibid. Barbadoes It was gotten by Conquest and therefore to be governed by what Law the King willeth 161 Bargain and Sale What words by construction of Law shall amount to a Bargain and Sale to make the Reversion pass with the Rent without Attornment 237 Baron and Feme See Slander 7 Administrator 9 11 Sci. Fa. 7 1. Whether Sci. Fa. will lie against the Husband alone after the death of the Wife upon a Judgment had against her Dum sola 186 2. If a Judgment is recovered against her while sole then she marries and dies the Husband is not chargeable unless had likewise against him during the Coverture ibid. 3. A Debt is due to her whilst sole she marries and dies before 't is recovered it shall not go to the Husband by virtue of the marriage but he may have it as Administrator to his Wife ibid. 4. Judgment is obtained against her whilst sole she marries and a Sci. Fa. is brought against Husband and Wife and Judgment quod habeat executionem the Wife dies a Scire Fa. may be brought against the Husband alone 189 5. The Recovery upon a Sci. fa. is against both and is therefore joynt against both 188 6. Husband may have Execution of a Judgment recovered by him and his Wife after the Death of his Wife without a Sci. fa. 189 7. Devastavit against both the Wife being an Executrix and Judgment that the Plaintiff have Execution de bonis propriis the Wife dies the Goods of the Husband are liable ibid. 8. A Woman who had a Term for years married the Rent is arrear she died the Husband shall be liable because by the Marriage he is entituled to the Profits of the Land ibid. 9. Feme Covert Copy-holder her Husband made a Lease for years without Licence of the Lord 't is a Forfeiture during the Coverture 222 9. Feme Covert Heir to a Copyhold Estate her Husband after three Proclamations will not be admitted 't is a Forfeiture during Coverture 226 10. The Husband hath a Lease in Right of his Wife who was an Executrix and he grnats all his Right and title therein the Right which he had by his Wife passeth 278 12. A. Feme Sole had a Lease and Married then Husband and Wife Surrender in consideration of a new Lease to be granted to the Wife and to her Sons the Estate vests immediately in her without the assent of her Husband for the Law intends it her Estate till he dissassent 300 13. Feme Covert and another joint-Tenant for Life she and the Husband Lease their Moiety reserving a Rent during Life and the Life of her Partner the Wife died 't is a good Lease against the Surviving joint-Tenant till disagreement 300 14. The Husband made a Feoffment in Fee to the use of himself and Wife and to the Heirs of the Survivor he afterwards made another Feoffment of the same Lands and died the Wife entred but the Fee was not vested in her by the first Conveyance because the contingent right was destroyed by the last 310 Barr. Recovery in a personal Action is a Barr to an Action of the like nature where the same Evidence supporteth both Actions 2 Judgment in Trespass is no Barr to an Action of Detinue 2 Bill of Exchange The Drawer and Endorsers are all liable to payment but if Recovery be against one 't is a good Bar to an Action which may be brought against the rest 86 By-Law See Corporation 12. Trade 8. Where 't is too general and where not 193 C. Carrier See Pleading 11. Certainty See Custom Grants Certiorari