a Jury But the Court inclined to grant the Writ for it did not appear that it was parcel of his Tenure but rather imposed upon him by the Custom of the Mannor and if Attorneys shall be discharged of the Service of the Common-wealth à fortiori of any private Service Vid. postea The King versus Webb IN an Action brought against him for imbesiling of the Kings Goods which was laid in the Declaration to be in London it was moved for the King that the County might be changed And the Court held the King might choose his County and might wave that which he had seemed to have elected before as he may wave his Demurrer and joyn Issue contra Perries Case IN an Information of Forgery against him being an Attorney of the Common Pleas it was alledged That he had framed a certain Writing in the Form of a Release at Sherborn and that he published and gave it in Evidence at Dorchester and the Venue came out of Dorchester whereas it was said it ought to have come out of both places To which it was answered That the publishing and not the framing was the Crime But notwithstanding it was held to be a Mis-trial and being in an Information it was not aided by any Statute Postea Anonymus IN Trover and Conversion amongst other things the Plaintiff declared de sex bovibus instead of bobus Vpon Not guilty pleaded and found for the Plaintiff and entire Damages assessed It was moved in Arrest of Judgment That the Jury ought to have given no Damages for bovibus being a word insensible and entire Damages being given it was naught for all To which it was answered That if the word be insensible notwithstanding the Anglice the Jury shall not be intended to have regarded it in the giving of Damages and if it hath a signification then it is well enough And it was said bovibus was an old Latin word and is found in Plautus and 't is bobus only by contraction It was also said That the Plaintiff brought this Action as Executor and the Trover was laid in the Testators time which was not sufficient tho' the Conversion was alledged in his own But the Court held neither of these Exceptions sufficient to Arrest Judgment Rumsey versus Rawson IN Replevin The Defendant Avowed for Damage Feasant The Plaintiff replies That the Parson of such a Parish and all his Predecessors have had time out of mind Common in the place where c. belonging to his Glebe and that the Beasts of the Plaintiff were Levant and Couchant upon the Glebe and he put them into the Common by the Licence of the Parson The Defendant Traverses that they were Levant and Couchant and found for the Plaintiff And it was moved in Arrest of Judgment That the Plaintiff had not alledged matter sufficient to justifie his Beasts going in the Common for no other Beasts ought to be put in the Common but those of the Tenant of the Land to which it is appendant or those which he takes to Compester his Land Fitz. N. Br. 180. b. and that tho' the Common be claimed for a certain number And the Opinion of the Court was That the Defendant might have demurred in this case But after a Verdict the Court shall intend they were Beasts which the Parson procured to Compester his Land and the right of the case is tryed so aided by the Statute of Oxford But they gave further time to shew cause Postea Anonymus AN Action was brought for these words Thou hast received Stoln Goods and knew they were Stoln Alice S. Stole them and thou wert partner with her For the first words the Court held them not Actionable for they might admit for a justifiable construction as if the Goods were waived But the last were holden sufficient for Partner with her must intend Partner in the Felony Skinner versus Gunter al. THe case was moved again by Pomberton and alledged in maintenance of the Action that it was but in the nature of an Action upon the Case for at the Common Law no Writ of conspiracy lay but for indicting one of a capital Crime and that after an acquittal by Verdict But since the Statute of 33 Edw. 1. de Conspiratoribus Actions have been brought for conspiring to Indict one of Trespass or to Sue one maliciously without cause of Action as this case is and so is Br. tit Consp pl. 2. and by F.N.B. 116. Such an Action in the nature of Conspiracy lies against one And the Title of the Action in this Case is In placito transgr super casum and for these Reasons all the Court were of Opinion for the Plaintiff Vid. Ante. Braithwaites Case BRaithwaite brought a Mandamus to the Mayor Bailiffs and Burgesses of the Town of Northampton to be restored to his place of Alderman there They make a Return and in their Return set forth the Letters Patents of 16 Car. by which they were Incorporated and power is given them of holding a Common Council consisting of a Mayor 2 Bailiffs and 48 Burgesses and that the Mayor Bailiffs and such Burgesses as had been Mayors commonly called Aldermen should have power upon just Cause to amove any Common Council Man from his place there and then they set forth how Braithwaite was a Member of the Common Council and had committed divers Offences which they expressed in particular Whereupon the 18 of Dec. 17 Car. the Common Council assembled together summoniri procuraverunt the said Braithwaite and he not coming to answer was the same day amoved ab officio suo loco suo in Communi Concilio per Majorem Burgenses authoritate secundum Chartam praedictam It was also set forth That they had a command from the Kin and Council to amove him Vpon this Return there were four Exceptions taken First That it did not appear that he was summoned for it ought to have been qui quidem Braithwaite postea summonitus fuir and not summoniri procuraverunt Sed non allocatur for it was held clearly to be all one Otherwise if it had been quod procuraverunt J.S. eum summonire A Second Exception was That their proceedings were too quick for they amoved him the same day wherein he was summoned Sed non allocatur for it appearing he lived in the same Town and refused to come to make his defence they might immediately amove him A Third Exception was That they had exceeded their power which was only to amove him from his place in the Common Council and they had amoved him from his Office Sed non allocatur for 't is that wherein his Office consists and indeed it was so averred in the Return But the main Exception was For that they had not as was alledged pursued their Authority for the Mayor and such Burgesses who had been Mayors have power given them to amove And here the Amotion is said to be per Majorem Burgenses so that it might be by
remedied either by the words or intention of the Act. Vid. Ante. Nokes and Stokes versus .... THey two brought an Action of Debt upon a Bond. The Defendant pleads the Release of one of the Plaintiffs They pray Oyer of the Release which was of all Actions Suits c. that he had against the Defendant upon his own account and pleads that this Bond was not upon his own account and upon this Issue is taken and found for the Plaintiff Now it was moved in Arrest of Judgment That this Issue was frivolous And upon the whole matter it appears that the Plaintiffs have no cause of Action for the Release of one Obligée dischargeth the Bond and it must be upon his own account But the Court Seriatim delivered their Opinions for the Plaintiffs for he might take this Bond as a security of a Debt with which he was intrusted for another And the truth of the case upon the Evidence was That the Defendant being charged with the payment of divers Legacies to Strangers was requested by one of the Plaintiffs to enter into Bond to him and the other Plaintiff who afterwards made the Release that should be Conditioned for the payment of the Money Bequeathed to the Obligees to the use of the Strangers which not being done the Defendant was Arrested at the Suit of the Plaintiffs this being made known to the Plaintiff who was absent at the taking of the Bond and knowing nothing of the Suit was contented to Release all Actions he had against the Defendant upon his own account King versus Atkins DEbt upon a Bond of 2000 l The Defendant demands Oyer of the Condition which was That whereas the Plaintiff was bound with the Defendant to the King that the Defendant should give a true account of such Moneys as he should receive for the Excise and Chimney Money And that the Defendant should save him harmless from all Payments or Suits upon that Bond and pleads that no Suits Process or Execution was against the Plaintiff upon that Bond issint he saved him harmless The Plaintiff replies a Scire facias issued against him out of the Exchequer upon the Bond and that he was forced to retain an Attorney and that he paid 1 s for his Appearance To this the Defendant Demurrs Because he did not alledge that he gave him notice And this was said not to be like Broughtons Case 5 Co. For there the Defendant knew the Money was to be paid at the day and it was to save him harmless from the single thing but here from a great many so that it was requisite he should have notice Where the Mesne is bound to acquit the Tenant the Tenant shall not recover Damages unless he gives the Mesne notice that he is distrained so that he may Replevy the Beasts But it was said That no notice ought to be given where the thing is an Act of a third person as to pay Money when J. S. comes into England To which it was answered That did not lie in the Conusance of either Party but this was in the notice of the Obligée But that which séemed most against the Demurrer in this case was That the Defendant having pleaded no Process c. he takes upon him the knowledge of it Vid. 1 Cro. 54. And if in the Replication the Plaintiff had alledged notice and the Defendant had Traversed it it would have been a departure and the Court advised until the next Term. Postea Welsh versus Bell. TRespass quare clausum fregit and taking of two Horses out of his Cart The Defendant justifies the taking of them as a Distress for Rent due to him And to this the Plaintiff Demurrs First He could not sever the Horses but ought to have distreined Cart and all according to the Book of 20 Edw. 4. 3. Distress of a Cart loaden with Corn Rolls 270. 3 Cro. 783. and four Horses in it adjudged not excessive because he could not sever the Horses And in 3 Cro. 7. a Difference is taken between Distress for Rent and Damage Feasant to this purpose And the common ground is that a Distress must be taken so as it may be returned in the same plight 1 Inst 47. a. Secondly It appeared also in the Declaration That there was a Servant of the Plaintiffs in the Cart by reason of which it was alledged that the Cart and Horses were priviledged for a Horse cannot be distrained upon which a Man is Riding 3 Cro. 549 596. Ed Adjornatur Twisden cited a Case adjudged before Rolls Chief Justice in Trespass for taking of his Trunk The Case was the Defendant distrained it for Rent and being Informed that there were things of Value in it he caused it to be Corded to prevent damage And for that he was adjudged a Trespasser ab initio Anonymus AN Action on the Case was brought against the Defendant for taking and keeping of the Plaintiffs Wife from him And upon Issue joyned the Court was moved to defer the Trial the Case being that the Wife was Daughter of the Defendant and taken from him by the Plaintiff without his Consent and as the Plaintiff affirmed Married to him Now this Marriage was questioned in the Court Christian And the Court thought it reasonable that the Trial should be delayed until the Marriage was determined there But they were Informed on the other side that the Court were ready to give Sentence That the Marriage was good and the Defendant had Appealed Wherefore they thought fit that the Trial of the Cause should proceed The King versus Nelson AN Order for the keeping of a Bastard Child being removed by Certiorari it was moved to have it quashed because it was ad Sessionem pacis in Com' praed ' and doth not say Tent ' pro ' Com' praedict ' Sed non allocatur For such strictness is not required in an Order But Twisden said it ought to be so in an Indictment It was further alledged that it ought to appear That the Child was likely to be chargeable to the Parish which was agreed But that was sufficiently set forth in the Order for upon Reading of it it appeared that he was ordered to pay such Charges as the Parish had been at Wherefore the Court confirmed the Order and awarded that he should pay such Costs as the Parish had been at for Contesting of it as was done formerly in one Haslefoot's Case And besides the Court Committed Nelson Anonymus DEbt upon a Bond Conditioned to perform Covenants If the Defendant pleads performance without demanding Oyer of the Indenture it is a good cause of Demurrer Anonymus IN Covenant the Plaintiff declares That he let the Defendant a House and that he Covenanted to Repair it The Defendant pleads That it was sufficiently Repaired before the Action brought The Plaintiff Demurs because he doth not plead That he Repaired it for it may be the Plaintiff himself did it Keeling and Raynsford inclined against the Demurrer because
constant Practice Secondly There was no good Trial for there is an Award of a Venire facias but no Writ certified But this was also Over-ruled for it is the Course of the Assizes not to make out any Writ Thirdly Issue is joyned by the Clerk of Assize which the Court said ought to be for he is Attorney General there Parker versus Welby THe Plaintiff brought an Action upon the Case against the Defendant and Declared that he Sued out a Latitat against a third Person directed to the Defendant being Sheriff who thereupon Arrested him and after let him go at large And then he Returned a Cepi Corpus paratum habuit ubi revera he had not his Body at the Day To this Declaration the Defendant Demurred supposing that no Action would lye for this False Return for the Statute of 23 H. 6. obliges the Sheriff to let to Bail and if he hath not the Body at the Day he is to be amerced But the Court were of Opinion for the Plaintiff For it shall be intended that he let him go without Bail and if he did not he ought to have pleaded the Statute of 23 H. 6. which is a Private Law And at the Common Law a man could not be let at large in such case without a Homine Replegiando Or else he might have pleaded Not Guilty and given the Statute in Evidence And so it is Adjudged in Layton and Gardiner's Case 3 Cro. 460. So Moor placito 996. 2 Cro. 352. and 3 Cro. 624. Where the Defendant pleaded That he let to Bail according to the Statute and the Plaintiff was barred Twisden cited a Case in this Court Paschae 21 Car. 1. Rot. 616. between Franklyn and Andrews where the Plaintiff Declared as in this Case And the Defendant pleaded the Statute and that he let him at large upon Sureties and traversed absque hoc that he returned his Writ Aliter aut alio modo To which the Plaintiff Demurred It was Resolved First That the Sheriff could Return nothing but Cepi Corpus And he was then amerced because he offered to make a Special Return Secondly That where the Sheriff let the parties out to the Bail and he made such Return that it was no False Return and therefore he should not have traversed Absque hoc that he Returned Aliter vel alio modo As in Maintenance where the Defendant Iustifies for that the party could not speak English and therefore he went with him to instruct his Counsel He shall traverse Absque hoc that he maintained Aliter because that he maintained Would not do tho' it be justifiable So in that case the Court ordered it to be Entred upon the Roll that Judgment was given for the Plaintiff quia Traversia fuit mala So here they Ordered it to be Entred because the Defendant did not plead the Statute of 23 H. 6. Hocking versus Matthews AN Action upon the Case was brought for Maliciously Impleading and causing him to be Excommunicated in the Ecclesiastical Court whereby he was taken upon an Excom ' Cap ' and Imprisoned until he got himself absolved The Defendant pleaded Not Guilty and found against him And it was afterwards moved in Arrest of Judgment that the Declaration was not good for no Action will lye for suing a man in the Spiritual Court tho' without cause no more than in Suing in the Temporal Courts For Fitz. N. B. is That a man shall not be punished for bringing the Kings Writs So Hob. Waterer and Freeman's Case And it hath been lately held that no Action will lye for an Indictment of Trespass tho' falso but an Action of the Case will lye for suing in Court Christian for a Temporal Cause But the Court in this Cause gave Judgment for the Plaintiff For tho' in an Action between party and party in the Ecclesiastical Court where if the matter goes for the Defendant he shall have his Costs no Action will lye if the Court hath Iurisdiction Yet where there is a Citation ex Officio and that is prosecuted malicously without ground the Party shall have his Action for in such Suit he can have no Costs And so is Carlion and Mills's Case Adjudged 1 Cro. 291. And this shall be so intended after the Verdict or otherwise the Defendant should have shewed it to be otherwise and Iustified And Rainsford said without Cause shall be understood without any Libel or Legal Proceedings against him Anonymus IN Debt upon an Obligation to perform an Award which was to pay the Rent mentioned in such an Indenture He that pleads performance of this Award needs not set forth the Indenture but refer generally to it But if it be to be paid in such manner and at such times as is expressed in the Indenture then it must be set forth at large The like of an Award of payment of Money given by a Will Wilson versus Armorer THe Case was Argued again this Term by Coleman for the Plaintiff who Argued that the Exception takes the two Closes wholly out of the Grant and that no modification can be annexed to it 3 Cro. 657. and Moor Pl. 747. A Lease was made for certain Lands excepting a Close and Covenants were for quiet Enjoyment of the Premisses The Lessee disturbed the Plaintiffs possession in the Close excepted yet he could not bring a Writ of Co-venant for by the Exception it is as much as if it had been never mentioned and in this Case the Livery being secundum formam Chartae could not work upon these Closes The Case of Hodge and Crosse cited in Hob. 171. was this A man gave Lands to another Habendum to him and his Heirs after the death of the Feoffor and Livery secundum formam Chartae Resolved a void Feoffment and relyed upon the Case in 1 Anderson 129. as full in the Point A Lease of an House excepting a Chamber pro usu suo proprio occupatione It was held that he might assign Weston ê contra This Exception is altogether void for it cannot be for the Life of the Feoffor only Bro. tit Reservation 13. and it shall not except the whole Fee against the Intention of the Parties for then the Ill wording of his Exception should give him above twice as much as otherwise be should have had and it is but one entire Sentence and taking it altogether it must have an effect which the Law doth not admit and is therefore to be wholly rejected As where a man grants his Term after his death the Grant is void Otherwise where he grants his Term habendum after his death for there the last Sentence is rejected Hob. 171. The Case of the Exception of the Chamber is not alike for excepting it for his own use are apt words to give him power to dispose of it at his pleasure Keeling Rainsford and Moreton held the Exception good for the entire Fee Twisden That it was wholly void because one Sentence Plus Postea Sympson versus Quinley
principium inde One of the Lessees died before the Lease for Life determined whereupon the Lessor brings Covenant for the 3 l and sets forth this Matter in the Declaration To which the Defendant Demurred supposing that the 3 l was not to be paid unless the Death had hapned after the Term had commenced And the Court having heard it spoken to divers times by Counsel on both sides by the Opinion of Twisden Rainsford and Moreton Iudgment was given for the Defendant For all the other Reservations but this were expresly post principium termini and Clauses in Companies are to expound one another as it is said in the Earl of Clanrickard's Case in Hobart It is in the nature of a Rent and Reservation which it is not necessary that it should be Annual And in Randall and Scories Case 1 Cro. such a Duty was distrained for and it shall attend the Reversion Rolls 457. And he that hath but an interesse termini is not to pay the Rent reserved for there is no Term nor no Reversion until it commences If A. lets to B. for 10 years and B. redemises to A. for 6 years to commence in futuro in the mean time this works no suspension of either Rent or Condition The Intention of the Parties is to be taken That it should not be paid until then However Reservations are to be taken most strongly against the Reserver As Palmer and Prowses Case cited in Suffeild's Case 10 Co. is The Reversion of a Lease for years was granted for Life reserving certain Rent cum reversio acciderit a Distress was made for the Rent arrear ever since the Grant Resolved that it was good for no more than was incurred since it fell into possession Keeling Chief Justice held strongly to the contrary For he said the words were so express in this Case that they have left no place for Construction which other Clauses or the Intention of the Parties may direct when the Expression is doubtful He took it for a Sum in gross for Distrained for it could not be being reserved upon the Death of the Lessees or either of them which was also the limitation of their Lease And that Interpretations were not to be made against the plain sense of words He relied upon Edriches Case 5 Co. where the Judges said They would not make any Construction against the express Letter of the Statute yet there was much Equity in that Case to incline them to it And he said As well as a Fine is paid upon the taking of such Lease before it begins why may not something be paid also when their Interest determines And in some Countries they call such Payments A fair Leave Miller versus Ward TRespass for breaking of his Close on the 1st of August and putting in his Cattel The Defendant Iustifies for Common which he prescribes for in this manner viz. That two years together he used to have Common there after the Corn reaped and carried away until it was sown again and the Third year to have Common for the whole year and that that Year the Plaintiff declares for the Trespass was one of the years the Field was own quod post grana messa c. he put in his Cattle absque hoc that he put them in aliter vel alio modo The Plaintiff Demurs which it was Ruled he might for the Defendant doth not answer to the Time wherein the Trespass was alledged and the Traverse will not help it for aliter vel alio modo doth not refer to the time Anonymus AN Administrator brings Debt upon an Obligation The Defendant pleads payment to himself Vpon which it was found for the Defendant Coleman prayed that he might have Costs As where an Executor brings an Action sur Trover and Conversion in his own time and found against him it was Ruled in Atkyes Case 1 Cro. that he should pay Costs and hereof his own knowledge he had no cause of Action the Money being paid to himself But the Court Resolved That there ought to be no Costs in this Case for the Action of Trover in his own time might have been brought in his own Name so it was needless to name himself Executor or Administrator but the Action here is meerly in right of the Intestate Harvey versus James AFter Verdict at the Assizes the Clerk delivered the Postea to the Attorney by whose negligent keeping it came to be eaten with Rats But the Court Examining the Clerk of Assize it appeared that he had Entred the Jurors Names Verdict and Tales in his Book and according to that the Court suffered the Verdict to be entred on Record Anonymus IN an Action of Battery against Baron and Feme the Jury find the Feme only Guilty and not the Baron It was moved in Arrest of Judgment That this Verdict was against the Plaintiff for he ought in this Case to have joyned the Baron only for conformity and he declaring of a Battery by both the Baron being acquitted he hath failed of his Action and so is Yelverton 106. in Drury and Dennys Case But here the Court gave Iudgment for the Plaintiff and said that that in Yelvetron was a strange Opinion Anonymus A Certiorari was prayed to remove an Indictment of Manslaughter out of Wales which the Court at first doubted whether they might grant in regard it could not be tryed in an English Country But an Indictment might have béen found thereof in an English County and that might be tryed by 26 H. 8. cap. 6. vid. 1 Cro. Soutley and Prices Case and Chedleys Case But it was made appear to the Court That there was a great cause to suspect Partiality if the Tryal proceeded in Wales for the Party was Bailed already by the Justices of Peace there which Twisden said it was doubtful whether they had power to do for Manslaughter They awarded a Certiorari and took Order that the Prosecutor should be bound by Recognizance to prefer an Indictment in the next English Country Collect versus Padwell IN Debt upon a Bond to perform an Award which was That one should make a Lease to another before the 21 of October which was 2 or 3 Months after the Award and that the other upon the making of the Lease should pay him 50 l The Question was Whether notice in this Case ought to be given when he would make the Lease for otherwise it was said the other must have 50 l always about him or be in danger to break the Award And it was resolved by the Court That no notice was necessary Noell versus Nelson MIch 21. Car. 2. Rot. 745. Error to Reverse a Judgment given in the Common Pleas where the case was thus Nelson brings Debt against Noel as Executor of Sir Martyn Noel who pleads plene administravit The Plaintiff confesseth the Plea and prayeth Iudgment de bonis Testatoris quae in futoro ad manus Defendentis devenirint and upon a Suggestion of Assets afterwards he
Action for saying Go tell the black Knave Roberts That I will teach him or any Attorney in England to sue out a Writ against me and he had Judgment for it was as much as to call him Knave Attorney Hill 22 23 Car. 2. Rot. 1426. Methin and the Hundred of Thistleworth AN Action was brought upon the Statute of Winton The Defendants pleaded that they made Hue and Cry and that within 40 Days they took one Dudley which was one of them that did the Robbery and had him in custody The Plaintiff Replied That Dudley was not taken upon their fresh pursuit modo forma And upon this Issue the Jury find a Special Verdict to this effect That the Hundred made Hue and Cry and that Sir Joseph Ash finding Dudley in the presence of Sir Philip Howard a Justice of the Peace of Westminster at his House in Westminster the said Sir Joseph being an Inhabitant in the Hundred of Thistleworth charged Dudley with this Robbery before Sir Philip who promised he should appear at the Sessions at the Old Baily And whether this be such a Taking as is put in Issue they referred to the Iudgment of the Court. Jones for the Plaintiff Argued That in this Case there doth not appear to be any Taking at all but only a Discourse between Sir Joseph Ash and Sir Philip Howard As admitting the Issue were Whether a man were Arrested or no and it should appear upon Evidence that one should come to the Sheriff and declare That he had a Writ against such a man then present and upon this the Sheriff should say I will take his word for his Appearance this clearly could not be taken for an Arrest Again The Issue is Whether he were taken upon the fresh pursuit of the Hundred and it doth not appear by the Verdict that there was any Hue and Cry made this way and it might be ceased before this time But it seems rather that Sir Joseph Ash found him by accident But the Opinion of Hales Chief Justice Twisden Rainsford and Moreton was that Judgment ought to be given for the Defendant For the charging of Dudley with the Robbery in the presence of a Justice of the Peace was clearly a Taking within the Statute For being in the presence which the Law construes to be under the Power or Custody of the Magistrate it would have been vain and impertinent to have laid hold of him and it shall be intented that this was upon Fresh pursuit For when the Verdict refers one Special Point to the Iudgment of the Court all other matters shall be intended And the Chief Justice said That if the Hue and Cry was made towards one part of the County and an Inhabitant of the Hundred apprehended one of the Robbers within another yet this was a Taking within the Statute Hornsey Administrator of Jane Lane versus Dimocke THe Plaintiff as Administrator of Jane Lane brought an Assumpsit and declared that he had formerly deposited such a Sum in the Defendants hands for the use of the Intestate Jane Lane in Consideration whereof the Defendant promised to the Plaintiff that he would pay it her or if she died before 18 years of Age that he would pay it to her Executors And shews that she died before 18 and that he had not paid it to the Plaintiff her Administrator licet saepius requisitus Vpon non Assumpsit a Verdict was for the Plaintiff It was moved in Arrest of Judgment that the Plaintiff brought this Action as Administrator which ought to have been in his own right for the Promise was made to him Sed non allocatur For if a man names himself Executor or Administrator and it apears the Cause of Action is in his own right it shall be well enough and he calling himself Executor c. is but Surplusage But here it seemeth Jane Lane might have brought an Assumpsit because she was the party to whom the Money was to be paid So it is good either way It was further Objected That it was not averred that the Defendant did not pay the Money to Jane Lane during her Life Sed non allocatur For 't is aided by the Verdict As the Chief Justice said a Case was Adjudged where an Assumpsit was brought upon a Promise to pay Money to two or either of them and declared that the Money was not paid to the two and not said or either of them yet Resolved to be good after Verdict Matthewes versus Crosse IN Debt for Rent the Plaintiff Declared That by an Indenture made in the Parish of St. Mary Undershaft London he Let an House to the Defendant situate in parvo Turris monte reserving so much Rent c. The Defendant pleads That before the Rent incurred the Plaintiff entred into a certain Room of the said House apud parvum Turris montem praedict ' and so suspended his Rent upon which it was Demurred And it was shewn for Cause That no place was alledged where the Entry was but said to be at Little Tower-Hill which cannot be intended a Vill. And a Case was cited of an Indictment in this Court of a Fact laid to be done at White-Hall and quashed for want of Place And to this the Court inclined but the Matter was ended by Comprimise ' Anonymus A Prohibition was prayed to a Suit for a Pension in the Ecclesiastical Court surmising that the Lands out of which it was demanded were Monastery Lands which came to the King and that he granted the Lands c. under which Grant the Plaintiff claims and that he Covenanted to discharge the said Lands of all Pensions c. and this upon the Statute of 34 H. 8. cap. 19. which appoints the Suit to be for Pensions in such cases in the Court of Augmentations and not elsewhere But the Court would not grant it until the Letters Patents of Discharge were produced being a matter of Record But where the Surmise is of matter of Fact it is sufficient to suggest it And it was said by the Court That Pensions whether by Prescription or otherwise might be sued for in the Ecclesiastical Court but if by Prescription then there was also Remedy at the Common Law F.N.B. 50. 1 Cro. 675. Davis versus Wright al' HIll 22 23 Car. 2. Rot. 701. In an Assumpsit the Plaintiff declared That his Father gave him by his Will 3 l per annum during his Life and that he was about to Sue for it and that the Defendants being Executors to the Father in Consideration that the Plaintiff would forbear to commence a Suit against him for it promised to pay him The Defendants plead That the Testator was indebted in divers Sums and ultra to pay them he had no Assets To this the Plaintiff demurred for that by this Promise the Defendants have made it their proper Debt But it was said on the other side That if there were no Assets there was no cause for the Plaintiff to have commenced
King by general words of all Land c. Conditions c. 3 Co. 2. a. b. much less could it pass from the King if it could pass at all by general words but I rest upon this First That it is a Power or kind of Trust to revoke but no Condition Secondly At least not such a Condition as is given to the King Thirdly If it were it ought to have béen executed by the same means as it should have béen by S. M. In Englefields Case there was no pretence to have more than to execute the Condition it ought here to have béen executed in the Life of S. M. and so it appears to be done in Englefields Case and Harding and Warners Case for I caused the Cases to be searched This is like the Case of the Statutes of 15 R. 2. cap. 5. 1 R. 3. cap. 1. 19 H. 7. cap. 15. these Statutes give the same advantage to Lords c. where persons have Uses in Lands respectively as if they had the very Lands but the Lord's c. cannot thereby claim any greater Interest than the cestuy que Uses had respectively in the Uses Now in this Case The Body of the Act and the Proviso fetch back and save the Trusts for all but S.M. As to the Execution for the Kings Debts it differs for the Process for they ever did and do run de terris de quibus illi aut aliquis ad eorum usum c. 'T is true in Sir Charles Hattons Case it was resolved That the Kings Debr should be executed upon Land wherein he had a power of Revocation Vid. Chirtons Case 11 Co. 92. And so Iudgment was affirmed per toram Curiam Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Anonymus IN Debt upon a Bond. After Verdict for the Plaintiff the Judgment was entred quod recuperet the Sum pro misis custag ' instead of pro debito praed ' But this was ordered to be amended as the default of the Clerk tho' in another Term The Court having power over their own Entries and Judgments Anonymus IN an Account it was held by the Court that if a man delivers Money to his Bayliff or Factor to lay out for him in Commodities he cannot bring an Assumpsit but only his Action of Account For the Chief Justice said that he knew such an Action once brought and the Jury that were to try the Cause informed him That if they should Examine all the Accounts which were between the Plaintiff and Defendant it would take up three or four days time So that it hath been always holden that in such case he should be driven to his proper Remedy which is an Action of Account and it may be the Factor hath laid out more Mony that he received Eaton versus Barker IN an Action upon the Statute of 17 Car. nunc for residing in a place where he had formerly kept a Conventicle and demands the 40 l penalty After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Costs or Damages given For it was said that where a Statute gave a certain Penalty if this be not paid upon demand he that sues for it shall recover his Costs and Damages as North and Wingate's Case in the 3 Cro. 559. is But the Court held that they ought not to be given in Actions Popular whether the Forfeiture be certain or not but where a certain Penalty is given to the party grieved there he shall recover his Costs and Damages 10 Co. 116. Vide postea Polexphen versus Polexphen IN a Prohibition the Case was that Henry Polexphen died Intestate Andrew his Brother gets Letters of Administration in the Inferiour Diocess One who pretended to be the Wife of H. surmizing Bona notabilia procured Administration from the Prerogative Court Andrew appeals to the Delegates and dies Henry his Son and Heir comes in and gets the Administration committed in the Prerogative Court Repealed and hath Letters granted to himself Vpon this the Wife prayed a Prohibition supposing that the Delegates could not proceed after the death of Andrew but that their Commission was determined For their Authority is by that to proceed in a Case between such parties one of which is dead To which it was Answered That the Commission is to hear and determine the Cause And both in the Civil and Ecclesiastical Law the Suit shall continue after the death of either party for those which shall be concerned as appears by the Bishop of Carlisle's Case in 2 Cro. 483. and in the 1st Leonard 117 and 178. it is said That if one party dies ante litis conrestationem then it shall abate but if after it is otherwise And there are a number of Presidents of this nature both in the Arches and Admiralty Courts c. And in this very Case Henry Polexphen having obtained Administration de bonis non of his Vncle Andrew in the Country the now Plaintiff got it set aside by the Delegates because granted while an Appeal was depending and that upon full debate before them who would yet now suggest that the Appeal was determined by the death of Andrew The Court were of Opinion that no Prohibition was to be granted and that the Delegates Authority to proceed in that case continued notwithstanding the death of Andrew For the Commission is to proceed in causis Administration c. una cum suis incidentibus vel annexis qualitercunque c. Summariè juxta Juris exigentiam So that the Ecclesiastical Law is appointed to be their Rule by the course of which a Suit doth not abate by the death of the parties And Hale said The Appeal is to the King in Chancery and it is by reason of his Original Jurisdiction and thereupon he grants a Commission to hear it Now if he could hear it in Person none could object but that he might determine the Cause after the death of the parties and by the same Reason they may to whom he hath delegated his Authority But the Attorney General coming in and desiring to be heard in it for the Plaintiff the Court gave further time Eaton versus Barker THe Case was now moved again upon the Statute for coming to a place where he had formerly Preached in a Conventicle And Exception was taken to the Declaration For that it was not averred that the Defendant was in Holy Orders For the words of the Statute are That if any one that hath been Parson Vicar Lecturer c. or within Holy Orders and have taken upon them to Preach c. But to this it was Answered that there is another Clause in the Act That all such persons as shall take upon them to Preach c. which is general and extends to all men whether in Orders or no which have been Preachers And of that Opinion were the Court. It was also Objected That there was no Averment That the Defendant was not there upon Summons Sub
poena c. of if so then it is no Offence by the Act. To which it was Answered that if the Body of the Act were That all persons which should resort to such place which were not Summoned or Subpoena'd thither should forfeit c. then 't is true it must be averred But that matter comes in a Proviso of the Act viz. That it shall not extend of such Cases and therefore if there were any such thing the Defendant is to plead it Wherefore the Court ordered Judgment to be Entred for the Plaintiff Ante. Anonymus IN an Action of Trover and Conversion After Verdict for the Plaintiff it was moved in Arrest of Judgment that the Action was commenced in Hillary Term and the Conversion alledged to be the 3d of February in the same Term and the Bill filed relates to the first day of the Term so before the Cause of Action But it was Resolved by the Court that if the Bail were Entred after the 3d Day of February it is well enough for it is that which gives this Court Iurisdiction So an Ejectment may be brought upon a Lease made in the same Term So the Statute of Limitations may be pleaded to an Action if the time be elapsed before the Day wherein the Bail is filed though not before the 1st Day of the Term wherein the Action is brought For the Action shall not be said to be depending until the Bail is filed And upon Search it was found that the Bail was filed the last Day of the Term. Putt versus Nosworthy IN Debt the Plaintiff declared upon certain Articles whereby the Plaintiff Covenanted to convey certain Lands to the Defendant and in Consideration thereof the Defendant Covenanted to pay a certain Sum to the Plaintiff After a General Imparlance the Defendant prayed Oyer of the Deed whereby it appeared that the Defendant and one Vincent Covenanted that he or Vincent should pay the said Sum. And he avers that Vincent sealed and delivered the Deed and demands Judgment of the Bill si actionem poterit habere versus eum solummodo To this the Plaintiff Demurred which was Entred thus Et dicit quod ab actione praedicta praecludi non debet quia materia insufficiens c. And the Defendant joyns Quod materia praeallegat ' sufficiens c. praedict ' le Plaintiff ab actione praedict ' praecludere Jones moved for the Plaintiff that the Defendant's Plea being in Abatement could not be admitted after an Imparlance and that a peremptory Judgment ought to be here given because he had concluded in Bar as well as Abatement For he doth not only demand Judgment of the Bill but saith actionem habere non debet and the Demurrer is joyned as upon a Plea in Bar. And it was agreed that if a man concludes a Plea in Abatement as in Bar if it be against him that pleads it Judgment peremptory is to be given But here the Conclusion is not actionem habere non debet but 't is added versus eum cum solummodo So if a man begins a Plea in Abatement actio non c. Judgment peremptory ought to be thereupon given But then it was said That although it were too late to urge this Matter in Abatement yet it appeared upon the Deed shewn that the Plaintiffs Declaration was insufficient For it being If the Defendant or one Vincent should pay and the Plaintiff alledging that the Defendant had not paid is not enough to intitle him to his Action albeit that Vincent were no Covenantee or had ever Sealed and Delivered To which it was Answered and so Resolved by the Court that it appeared by the frame of the Deed that Vincent was as well party as the Defendant and it is too late now to averr that he did Seal and Deliver so it shall be taken that he did not and then it remains the sole Covenant of the Defendant And though the words are That the Defendant or Vincent shall pay that is no more than the Law would have implied if Vincent had Sealed And the Chief Justice cited one Cartwright's Case in Debt for Rent where the Indenture of Lease was a Demise from Cartwright and another Ioyntenant with him reserving a certain Rent to them both but the other never Sealed Cartwright brought Debt and declared of a Demise of the Moiety and Reservation of the Moiety of the Rent And upon Nil deber the Matter aforesaid was Specially found And it was moved First That the Lease being by Indenture whether the whole Rent were not well reserved to Cartwright as by Estoppel or whether it were not good to him as to a Stranger for one Moiety or whether it should not be good to him as an intire thing which was reserved to him as well as the other But the Court Resolved that it was good only for a Moiety as he had declared For there being an Expectation of the others Sealing which never was done the Deed as to one Moiety of the Land and the Rent reserved had no effect And where one Declares against one upon a Deed whereby it appears that another was bound with him it shall not be intended that the other Sealed unless averred on the Defendants Side Otherwise where the Declaration is upon Matter of Record And it was held by the Court That if the Declaration were defective in this yet it was but in Matter of Form For he saith that the Defendant did not pay sed adhuc injuste detinet which is an Averment tho' unformal that the Money is not yet paid neither by the one nor other And so it hath been held where in Debt against an Executor it is averred that the Executor did not pay it adhuc injuste detinet and not averred that the Testator had not in his life time that after a Verdict this is aided And they held that a Judgment ought to be given quod respondeat ouster for the joyning Demurrer as upon a Plea in Bar is not material besides the Fault begun on the Plaintiffs part Tailour versus Fitzgerald ERror upon a Judgment given in the King's Bench in Ireland in Ejectment where the Plaintiff declared that J. S. demised to him per quoddam Scriptum Obligatorium c. habend ' Ã die datus Indenturae praedict ' And upon Not guilty pleaded it was found for the Plaintiff and he had his Iudgment It was assigned for Error that there was no time when this Lease should commence for it was Habend ' after the Date of the aforesaid Indenture and there was none before it being Scriptum Obligatorium and not Indenturam But the Court Resolved that the Writing shall be intended an Indenture and tho' called Scriptum Obligatorium which is improper yet it may be said every Deed obligeth or if it shall not be intended Indented then the Lease shall commence presently as if it had been Habend ' from the 40th of September Crossing versus Scudamore IN Trespass Quare clausum fregit the
First A Sufficient Consideration Secondly A Deed as in Callard and Callard's Case in 3 Cro. and in Popham's Reports and hath been often Resoved since Thirdly A Seisin in the Covenantor of the Lands at the time of the Deed For a man cannot Covenant to stand seised to an Vse of Lands which he shall after purchase Fourthly A Clear and apparent Intent Fifthly Apt and proper Words And the two last things are wanting in our Case I agree the word Covenant is not necessary so there be other Words sufficient in Law and to declare the parties Intent for all Words will not serve A man Covenanted upon good Consideration that his Feoffees should stand seised It was Resolved that no Use should anise upon it 1 Cro. 856. So Sir Thomas Seymor's Case Where a Covenant was upon good Consideration to levy a Fine to certain Vses and no Fine was after levied It was Resolved that the Covenant did not raise any Vse Dyer 96. Therefore 't is usual to express in such Deeds of Covenant that if the Conveyances therein contained be not executed that then the party shall from henceforth stand seised And where it is said in Vivian's Case Dyer 302. One having given granted and released to his Brother and his Heirs certain Mannors and no Livery made that Plowden would have averred that the Deed was made pro Fraterno amore and so should raise an Use Vnder the Favour of the Court I deny that Opinion of Plowden to be Law And in Debb and Peplewell's Case it is said That the Land was enjoyed against the Release And in Moor pl. 267. One Covenanted in Consideration of Marriage to let his Land discend remain or come to his Daughter It was Resolved no Use did arise thereupon In this Conveyance there are not any Words that sound in Covenant the only word that looks towards an Use is the word Bargain and Sell. and in Ward and Lambert's Case in 3 Cro. 394. it is held That if one gives or bargains and sells Land to his Son it shall not amount to a Covenant to stand seised for want of apt words Now the other are all words of Common Law Give Crant Alien Enfeoff and Confirm There is also a clause of Special Warranty in the Deed and a Covenant to make further assurance by Fine Recovery c. as great a preparation at Common Law as could be And if the Parties intend the Land shall pass at the Common Law by Transmutation of Possession there shall no use arise Co. Lit. 49. Charter of Feoffment to the Son it shall raise no use if no Livery be made The word Dedi in this Deed imports a General Warranty which is not qualified by the Special Warranty after yet if the Land pass by way of use there can be only a Rebutter and so no use of the General Warranty The Authorities since have not béen concurrent with Debb and Poplewells Case but contrary to it And I rely upon the Cases of Pitfeild and Pierce and Forster and Forster in this Court which have been remembred on the other side but no answered And whereas it is said That the Habend is after the Death of them which conveyed the Land they are in that respect stronger than the Case at Bar for by that it appears they could not intend a Conveyance at the Common Law which doth not allow such kind of Limitations therefore it must be by way of use or no way Yet it was resolved they should not pass so It would introduce universal ignorance and carelesness in such as draw Conveyances if the Court should apply their Art to give them effect however they were penned and it is a Rule Politia legibus non leges Politiis adaptantur The Court after heaving the Case twice argued were all of Opinion That the Land should pass by way of Covenant to stand seized and Hale cited Hob. 277. who doth there commend the Judges who are curious and almost subtil to invent reasons and means to make Acts effectual according to the just intent of the parties They all held clearly That words proper for a Conveyance at Common Law would raise an Use as Demise and Grant have béen adjudged to amount to a Bargain and Sale without other words And they said Pitfields and Pierces Case was adjudged upon the absurd contrivance of the Conveyance and so Foster and Fosters Case in this Court and for that in that case the Deed was Articles of Agreement preparatory to what the party intended after and the case in Moor Pl. 267. where there was a Covenant in Consideration of Marriage to suffer the Land to remain descend or come to the Daughter no Use did arise there for the incertainty how it was intended the Daughter should take And they said That if they should not construe an Use to arise by such Conveyance as in the case at Bar it would overthrow all Conveyances by Lease and Release And for the Objection of the Warranty in the Deed it is well known there is so in most Conveyances to Uses Wherefore they gave Iudgment for the Plaintiff Note This Iudgment was afterwards affirmed upon Error brought in the Exchequer Chamber Anonymus AN Indictment was brought for using of a Trade to which he had not béen bound an Apprentice It was moved to quash it because it was not alledged that he did not use the Trade 5 Eliz. for if he did he is excepted out of the Statute But the Court did not much regard that exception Tho' they said it had béen often allowed but it cannot here be intended it being so long since the Statute was made Secondly It was for using the Trade Aromatarij without an Anglicè so it could not be known what Trade was meant and tho' that word is often used for a Grocer yet it must be so Englished or else it shall not be taken for that Trade more than another And for this Cause the Court quashed the Indictment Note If a Man be taken upon a Warrant de securitate pacis or any criminal cause he is not to be charged with Actions unless the Court gives leave which they will rarely do The Case of the Heirs of the Earl of Southampton KIng James by his Leters Petents Enrolled in this Court granted to the E. of Southampton all Deodands within the Mannor of Ditchfield An Inquisition was certified here that a Deodand was forfeited within the said Mannor and Process went out thereupon The Court were moved in behalf of the Daughters and Heirs of the Earl whether they should be driven to set forth their Title in pleading for if so the charges would far exceed the value of the Deodand and it would be very inconvenient that every new Heir should be forced to plead upon every Deodand that happens But the Court said in regard the Letters Patents are here Enrolled and that it appeared by the Inquisition that this Deodand was forfeited within the Mannor it should suffice without pleading
to Bernard to make his Wife a Joynture it shews that it was intended he should have but an Estate for Life which needed such a Power and not an Estate Tail for then he might have made a Joynture without it I Answer That Tenant in Tail cannot by virtue of such Estate make a Joynture without discontinuing or destroying his Estate Sed Judicium pro Quer ' There being Justice Twisden and Justice Rainsford against the Chief Justice Termino Sancti Hillarij Anno 24 25 Car. II. In Banco Regis Anonymus A Prohibition was prayed to the Ecclesiastical Court for that they Cited one out of the Diocess to Answer a Suit for a Legacy But it was denied because it was in the Court where the Probat of the Will was For tho' it were before Commissioners appointed for the Probat of Wills in the late Times yet now all their Proceedings in such cases are transmitted into the Prerogative Court And therefore Suits for the Legacies contained in such Wills ought to be in the Archbishop's Court for there the Executor must give account and be discharged c. Note When a man is in custodia Marescalli any man may Declare against him in a Personal Action and if he be bailed out he is still in custodia to this purpose viz. quoad Declarations brought in against him that Term For the Bail are as it were Delegated by the Court to have him in Prison Hob. Error is not well assigned That there was no Bail filed unless added That the Defendant was not in custodia Debt IN an Action of Debt upon a Sheriffs Bond the Case was this A man was Arrested upon a Latitat in placito Transgr ' ac etiam bille pro 40 l de debito And the Condition of the Bond given to the Sheriff was to appear at the Day of the Return of the Writ to answer to the Plaint in plito debito And it was urged that this made the Bond void by the Statute of 23 H. 6. for the Condition should have been to Appear at the Day to Answer in the Action upon which the Process went out and that was in this Case but an Action of Trespass and the adding the Ac etiam debiti c. is but to satisfie the late Act and for Direction to the Sheriff to what Value he shall require Bail And it was usual to Endorse the Cause of Action before the Statute upon the Latitats that the Sheriff might insist upon Bail accordingly So this is a material Variance from the Statute and not like some of these which are remembred in Beaufage's Case in the 10 Co. and Dyer 364. And to this the Court inclined And Hale Cited a Case between Button and Low adjudged Mich. 1649. An Attachment went out of Chancery to answer Coram nobis in Cancellaria ubicunque c. and the Sheriff took a Bond Conditioned to Appear Coram Rege in Cancellaria ubicunque c. apud Westmonasterium And for the addition of Westminster the Bond was held to be void Anonymus THe Court was moved for a Prohibition to the Archbishop's Court to stop their Proceedings in a Cause belonging to the Jurisdiction of Durham upon a Suggestion that the Dean and Chapter of Durham Sede vacante have Cognizance there as Guardians of the Spiritualties And the Court granted a Prohibition for the Right of Jurisdiction was tryed between the Archbishop and Dean and Chapter the last Term and found against the Archbishop and therefore he was concluded by the Verdict until the Record was reversed by Error or Attaint Thodie's Case THody and two others were Indicted for that Conspiratione inter eos habita they enticed J. S. to play and cheated him with False Dice Thody pleaded and was found Guilty the others not having pleaded It was moved that Judgment might not be Entred against him until the others came in for being laid by way of Conspiracy if the rest should chance to be acquitted no Judgment could be given against him And so is 14 H. 6. 25. Hale said If one be Acquitted in an Action of Conspiracy the other cannot be Guilty But where one is found Guilty and the other comes not in upon Process or if he dies hanging the Suit yet Judgment shall be upon the Verdict against the other And so is 18 E. 3. 1. and 24 E. 3. 34. Wild said The difference was where the Suit was upon Conspiracy wherein the Villanous Judgment was to be given and where the Conspiracy is laid only by way of Aggravation as in this Case Hale said It would be the same in an Action against two upon the Case for Conspiracy but not in such Actions where tho' there be a Charge of Conspiracy yet the Gift of the Action is upon another matter But the Court said They would give him two or three days for the bringing in of the other two and defer the Entry of the Judgment in the mean time Methyn versus the Hundred of Thistleworth THe Case was moved again by North Solicitor He urgrd for the Plaintiff That the Issue being Whether they took the Felon upon Fresh Suit It being not found that there was any actual Taking or that the Fresh Suit continued until Sir J. Ash found the Felon in the presence of Sir P. Warwick Also it was found that Sir J. Ash was a Justice of Peace and therefore it was his duty to Apprehend him To this it was Answered That the Statute of Winton upon which the Action is founded and not upon the 27 of Eliz. and therefore it is ill if it concludes contra formam Statutorum doth not say shall Take but shall Answer the Bodies of the Offenders which is Answer them to Justice And therefore if the Felon be taken upon another account and the Country finding him in Prison cause him to be Indicted this satisfies the Statute Goldsb 55. Again it was more decent for Sir John Ash being concerned as an Inhabitant of the Hundred to leave this Matter to the other Justice of the Peace for it has been known that Justices of the Peace have been Censured in the Star-Chamber for being too forward to interpose in their own business But if it were an omission of the Duty of his Office that could not be Objected to him as an Inhabitant having done enough to satisfie the Statute of Winton Wild said That the Defendant should have Demurred because the Issue is ill joyned viz. absque hoc that he took him super eadem recenti insecutione For if he were not immediately taken upon Fresh pursuit it were sufficient but the Verdict finding Fresh Suit was made it may be taken by Intendment which shall help out a Special Verdict that it was directed this way and continued until the finding of him in the presence of Sir P. Warwicke Et sic Judicium pro Def. Ante. Dacres versus Duncomb IN Trover after Imparlance the Defendant pleaded That the Plaintiff with two others brought Trover for the
Specie when the Estate is determined The Case of Captain C. A Captain of a Company in Colonel Russel's Regiment of Foot Gaurds and a Serjeant of his Company were brought into Court upon the Prosecution of the Sheriffs and other Citizens of London and the Offence alledged and moved against them was this That one Danbert a Butcher and Freeman of London who had Broke having Listed himself a Souldier in this Company and being afterwards Arrested in London for Debt and laid in the Counter and thereof he having given the Captain private Notice the following Design was resolved and executed for his Rescue viz. There being a Priviledge belonging to the Freeman of London that they may by a Customary Precept or Warrant called a Duci facias but by the Common People called a Horse remove themselves from any other Prison where they are in London to Ludgate where it seems they have better Accommodation there being Maintenance allowed to the Prisoners of that place Such an one Danbert got and gave Notice to the Captain at what time he should be carried from the Counter to Ludgate thereby Before this time the Captain commanded this Serjeant to take twenty or thirty Soldiers with him and Way-lay the Prisoner and Rescue him from the Bayliffs and Officers of the Counter as they were bringing him along Accordingly the Serjeant and Soldiers went and lay in or near an Alehouse about Popes-head Alley in Ambuscade till the Prisoner should be brought by And when they had Notice from one who they had placed as Centinel that he was coming they sallied out and drew their Swords for the Serjeant had given them order so to do and if any opposition were made they should kill the first Man And by this means they Rescued him and carried him away Hereupon Complaint being made to the Captain He Answered That his Soldiers had done well and he would Justifie it The Court asked him what he had to say in his Iustification He said That he did not know the Law but he ever thought that a Soldier could not be Arrested without leave of his Officer and that there was an Agreement to that purpose between the late Lord General and the former Lord Chief Justice and that he knew one that had done the like thing and nothing was said to him for it Hale Chief Justice to whom the rest agreed said The more wrong has been done It seems you are grown very Dead-strong but you ought to know that every Officer and Soldier is as liable to be Arrested as a Tradesman or any other person whatsoever and you ought to give full Obedience to the King's Commands signified by his Writs or Process Wild said That that may be served upon you when you are in the Head of your Company Hale said further You are the Kings Servants and intended for his Defence against his Enemies and to preserve the Peace of the Kingdom not to exempt your self from the Authority of the Laws And indeed it were a vain thing to talk of Courts and Laws if Military Men shall thus give the Law and controll Proceedings And for that Agreement you speak of I know nothing of it and if there were any such thing it could be nothing but a Civility Whatever you Military Men think you shall find that you are under the Civil Jurisdiction and you but gnaw a File you will break your Teeth e're you shall prevail against it This is an Outragious Offence and the Punishment has formerly gone high Men have heretofore lost their Heads for Matters of such nature and one of the Crimes of the late London Apprentices was the breaking of Prisons and delivering of Prisoners for which they had Iudgment of High Treason by the Advice of all the Judges The Captain and Serjeant were Committed to Newgate and being brought up at another time Hale asked Why an Information against these Persons was not Exhibited And told the City Counsel that if the Sheriffs did not prosecute this business they the Court would Prosecute them for this was a matter of great Example and ought not to be smothered And further said If that Men will take upon them to Rescue all Soldiers that are Committed it may be within the reach of High Treason because of the Vniversality of the Design against the King's Athority But this being but for one particular it cannot be Treason but 't is a rank Misdemeanour And be Ordered that as many of the rest of the Soldiers should be Prosecuted as their Names could be learned There must be one more to make a Riot tho' however 't is a Misdemeanour Wild said Tho' they cannot find out another Name yet if it be set forth and made out that there were others 't is enough to make a Riot Termino Sancti Hillarij Anno 25 26 Car. II. In Banco Regis NOte When a Prohibition is moved for that a Copy of the Libel is denied to be delivered The Court requires that Oath should be made of the Denial and the Prohibition is but quousque a Copy be delivered Anonymus AN Indebitat ' Assumpsit was brought for Money Lent The Defendant pleads a Tender which being offered at first before Action brought and acknowledged by the Plaintiff he can never recover any Costs The Plaintiff Replies That before the Tender he brought an Assumpsit in the Sheriffs Court upon a Plaint upon the same Cause of Action which was removed hither The Defendant Rejoyns that upon that Plaint he declared for a greater Sum. To which the Plaintiff Demurred For tho' there be a Variance in the Sum yet it might be averred to be the same Cause of Action And so the Court agreed And Hale put this Case A. in Consideration that B. would marry his Daughter promised to pay 100 l and in an Action brought the Plaintiff was barred and in another Action brought The Promise was laid to pay the 100 l at Request and held it could not be averred to be the same Anonymus Note Where Error is assigned in a Matter contrary to the Record in nullo est Erratum is a Demurrer So where Matter of Fact is insufficiently alledged But if a Matter of Law and Matter of Fact together well set forth be assigned which ought not to be there in nullo est Erratum will be a Confession of the Matter of Fact and not serve as a Demurrer for the Doubleness Wherefore in that case the Defendant must Demur Anonymus ONe having Rent payable Half yearly for a Term whereof about six years were to come was content to Release it upon a Bond Conditioned for the payment of the like Sum with the Rent and at the same times And in Debt upon the Bond after failure of Payment upon a Reference to the Secondary to state what was really due He asked the Opinion of the Court whether there should be any deduction for Taxes And the Court said it was Equitable they should be allowed in regard the Money in the
is very clear For tho' in M. Portington's Case in 10 Co. 't is said that the word Condition shall not in a Will be taken as a Limitation yet the Current of the Authorities since are otherwise But here the Court held the Condition void for a man cannot be restrained from an Attempt to Alien For non constat what shall be judged an Attempt and how can it be tryed And when the express words are so there shall not be made another sort of Condition than the Will imports And so the Judgment was affirmed Osborn versus Beversham DEbt for Rent incurred at two Half years As to one of them the Defendant pleaded non debet And as to the other Actio non because he says He was ready to pay it at the Day and Place and has been ever since profert in Cur ' the Rent ideo petit Judicium de damnis To which the Plaintiff Demurred For that he did not say quod obtulit for where the Time and Place of Payment is certain Semper paratus is no Plea without an Obtulit For the Defendant it was said That the Plaintiff ought to reply to a Demand 1 Inst 34. 'T is a good Plea for the Heir in Dower to save his Damages to say That he was always ready Rastal's Entries 159. Semper paratus is pleaded without an Obtulit So 1 Rolls 573. no mention made of a Tender But then another Fault was found that it was pleaded in Bar whereas it ought to have been only in Bar of Damages and not to the Action and this was agreed to be fatal But the Court held the Plea to be naught for the other Cause also Anonymus IN an Ejectment upon a Special Verdict the Case was A man Devised his Land to J. S. after the death of his Wife And after Argument the whole Court were of Opinion that J.S. not being Heir to the Devisor there should go no implied Estate to the Wife for an Heir shall not be defeated but by a necessary Implication Anonymus AN Action for Words for that the Defendant said of the Plaintiff He would have given Dean Money to have Robbed Golding's House and he did Rob the House After Verdict it was moved in Arrest of Judgment that the first part of the words import only an Inclination and not that he did give any Money And the words He did Rob the House shall be referred to Dean as the last antecedent and not the Plaintiff But the Court were of Opinion for the Plaintiff as was Adjudged where the words were He lay in wait to Rob. Vid. Cockain's Case in the 1 Cro. and in the 4 Co. And the Court said the Words might be construed That the Plaintiff offered Dean Money and he refusing it that the Plaintiff robbed the House himself Smith versus Tracy THe Case being moved again the Opinion of the whole Court was That the Half-Blood should come in for Distribution upon the new Act For as to the granting of Administration the being of Guardian c. the Half-Blood may be taken nearer of Kin than a more remote Kinsman of the Whole Blood Mo. 635 Ro. Rep. 114. Ante. J 's Case J. Brings his Habeas Corpus The Return was that he was Committed by J. S. J. N. T. K. to whom and others a Commission of Bankrupt was awarded for refusing to answer a Question put to him concerning the Bankrupt's Estate c. and so Commissus fuit in custodia by a Warrant to the Officer Virtute Commissionis praedictae haec est causa captionis seu detentionis c. The Counsel for the Prisoner took three Exceptions to the Return First For that there did not appear a sufficient Authority For the Commission is said to be granted to them and others and then they could not act without the rest for the Return does not express any Quorum c. in the Commission Secondly Instead of Commissus in custodia it ought to be Captus for that is the usual Form For this is as if the Commitment were by the Officer that makes the Return Thirdly Haec est causa captionis seu detentionis is uncertain for it ought to be detentionis And upon the first and last Exception the Prisoner was Discharged by the Court but at the same time was told by the Court That he must answer directly to such Questions as were put to him in order to the discovery of the Bankrupts Estate or else he was liable to be Committed Termino Sancti Hillarij Anno 29 30 Car. II. In Banco Regis Harrington's Case AN Information was preferred against him for that he maliciously and traiterously intending to stir up Sedition and to create a Disturbance between the King and his People upon Discourse of the late Rebellion and those Persons which were Executed at Charing-Cross for the Murder of the late King in praesentia audita quamplurium utteravit propalavit haec verba pernitiosa sequentia viz. Gubernatio nostra consistebat de tribus statibus si eveniret Rebellio in Regno nisi foret Rebellio contra omnes Status non est Rebellio Vpon Not Guilty pleaded he was found Guilty of speaking the precedent Words and Not guilty as to other Words contained in the Information It was moved in Arrest of Judment that Gubernatio signified the Exercise and Administration of the Government and not the State of it which Regimen doth Again That it was Consistebat and so might relate to the Britons or Saxons Time or to the late mutations of the Form of Government amongst us and that to put the words in Latin without an Anglicè was not to be allowed for the Translation might either aggravate or mitigate the Sense And that such a President might be prejudicial as well to the King as the Defendant But those Exceptions finding little weight with the Court his Counsel proceeded to justifie or at least to extenuate the Words alledging That the Relation was so great between the King and People that to raise a Rebellion against the King must also affect the other States and this whether the King be taken as some would have it as one of the Three Estates or as others that the Lords Spiritual and Temporal make two of the Estates and the Commons the third and the King as Chief and Head of all as is the Statute of 1 Eliz. cap. 3. where the Lords and Commons call themselves the Queens Obedient Subjects Representing the Three Estates of the Realm of England and so is the 4 Inst 1. But the Court supposing that the Words did tend to set on Foot that Position upon which the War Levied in 1641. by the Two Houses against the King was grounded were much displeased that the Counsel would pretend to defend them or put any tolerable Sense upon them It was also insisted upon by the King's Counsel and agreed by the Court that the Ancient Presidents and many latter also were to express the
given pro Quer. Termino Paschae Anno 34 Car. II. In Banco Regis Clayton versus Gillam IN Trespass for breaking and entering of his Close and Feeding c. and laying thereon certain pieces of Timber c. Et continuando Transgressionem praed ' After Verdict for the Plaintiff it was moved in Arrest of Judgment that one of the Trespasses viz. The laying of Timber could not be with a Continuando But it was resolved by the Court that continuando transgressionem praed ' shall be referred only to the Trespasses which may properly be said with a continuando But if the continuando had been expresly laid for that Trespass all would have been naught as it was resolved in a Case in this Court between Letchford and Elliot 16 Car. 2. The Earl of Shaftsbury versus Cradock IN an Action of Scandalum Magnatum for saying That the Earl was a Traytor c. The Action being laid in London where the words were supposed to be spoken It was moved in behalf of the Defendant that the Venue might be changed into some other Country and Affidavits were read that the Plaintiff had a great interest in the City and an intimacy with the present Sheriffs so that the Defendant could not expect an indifferent Tryal there and thereupon the Court did think fit to take the Cause out of London and gave the Earl the Election of any other County but he refused to Trie it elsewhere and would rather let the Action fall Curtis versus Inman IN Debt for the Penalty forfeited by the Statute of 5 Eliz. for using the Trade of a Grocer having not been Bound an Apprentice It was moved that the Action lies not in this Court because 21 Jac. cap. 4. Enacts That Actions popular shall be brought before Justices of Assize of the Peace c. But a Case was cited which was adjudged in this Court Hill 20 21 Car. 2. between Barns and Hughes which see before that such Action would lie But the Court notwithstanding in this Case said they would hear Arguments The Earl of Shaftsbury versus Graham al. IN an Action upon the Case in the nature of a Conspiracy the Declaration was That the Defendants did conspire to indict the Plaintiff of High Treason and for that purpose did Sollicit one Wilkinson and endeavoured to Suborn him to give false Testimony against the said Earl and an Indictment was offered at the Sessions at the Old Baily in London by the Defendant in pursuance of the said Conspiracy which Indictment the Grand Jury there found Ignoramus c. It was moved in behalf of the Defendants that whereas the Conspiracy was in the Declaration alledged to be in London that the Court would change the Venue and an Affidavit of the Defendants was produced That the Conspiracy alledged in the Declaration if there were any such was in Surry and not in London Note Wilkinson at the time of the supposed Conspiracy was a Prisoner in the Kings Bench and Affidavits were produced likewise to shew that the Plaintiff had such Interest with the present Sheriffs of London that an indifferent Jury was not like to be returned and that several Persons named to be material Witnesses for the Defendant durst not come to the Tryal if it were in London for fear of their Lives in regard they had been so affronted and abused when they were produced to prove the before mentied Indictment at the Old Baily and several other matters were alledged But it was insisted upon by the Counsel for the Earl That First The Venue uses not to be changed in Case of a Peer who is one of the Comites Regis and shall not be forced to Travel into another County to trie his Case as a Common Person Secondly That the present Case was local viz The preferring the Indictment at the Old Baily and where the Cause of Action ariseth in two Counties the Plaintiff hath his Election to bring it in either 7 Co. Bulwers Case But the Court declared that they were satisfied that no indifferent Tryal could be had in London they remembered they were affronted themselves when they were at the Old Baily upon the before mentioned Indictment And they resolved that they had a power to alter the Venue in the case of a Peer as it had been done about six years since in a Scandalum Magnatum brought by the Earl of Salisbury in this Court. And also they said that the Cause of Action here was Transitory viz. The conspiring and that the preferring of the Indictment was but in aggravation of Damages and the Action would lie altho' none had been offered or if preferred by other Persons than the Conspirators 'T is true when the matter ariseth in several plates the Plaintiff has Election but if there be like to be no indifferent Tryal in the place where it is laid 't is usual with this Court to change the Venue But the Court said they would not confine the Plaintiff to Surry if he could shew them cause that that was not an indifferent County Vid. 42 Ed. 3. 14. Termino Sancti Michaelis Anno 34 Car. II. In Banco Regis Denison versus Ralphson IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of a Sum of Money paid by the Plaintiff did promise to deliver to him ten Pots of good and Merchandizable Pot Ashes and that not regarding his Promise and to defraud him he delivered him ten Pots of Ashes not Merchandizable but mixed with Dirt c. And declared also that pro quadam pecuniae summa c. the Defendant vendidit to the Plaintiff ten other Pots of Ashes Warrantizando c. that they were good and Merchandizable and that he delivered them bad and not Merchandizable knowing them to be naught and to this Declaration the Defendant Demurred And it was argued by Sanders That here were Causes of Action of several Natures put into one Declaration and they required several Pleas viz. Non Assumpsit and Not guilty and therefore ought not to be joyned Thompson for the Plaintiff cited a Case between Matthews and Hoskin An Action against a Common Carrier and declared upon the Custom of the Realm and that he had not delivered the Goods and declared also in a Trover and Conversion upon the same matter and after Verdict upon motion in Arrest of Judgment the Action was adjudged well brought 16 and 17 Car. 2. Hill in this Court. So an Action against one for twenty shillings upon the Hire of an Horse and declared further that he abused him and held good Curia Those Cases were after Verdict Causes upon Contract which are in the Right and Causes upon a Tort cannot be joyned for they do not only require several Pleas but there is several Process the one Summons Attachment c. the other Attachment c. These upon the Contract lie for and against Executors the other not but these seem to be both upon the Contract viz. That
upon the Warranty as well as the other tho' the Declaration saith knowing them to be naught yet the knowledge need not to be proved in Evidence Debt upon a Bond and a mutuatus may be joyned in one Action yet there must be several Pleas for Nil debet which is proper to the one will not serve in the Action upon the Bond. Sed Adjornatur Termino Sancti Hillarij Anno 34 35 Car. II. In Banco Regis Anonymus A Quo Warranto was brought against divers persons of the City of Worcester why they claimed to be Aldermen c. of the said Corporation The Cause came to be tried at the Bar and a Challenge was made to the Jury in behalf of the Defendants for that the Jury men were not Freeholders The Court said that for Juries within Corporate Towns it hath hath been held that the Statutes that have been made requiring that Jurymen should have so much Freehold do not extend to such places for if so there might be a failer of Justice for want of such Jurymen so qualified but then to maintain the Challenge it was said by the Common Law Jurymen were to be Freeholders But the Court overruled the Challenge but at the importunity of the Counsel they allowed a Bill of Exceptions and so a Verdict passed against the Defendants and afterwards it was moved in Arrest of Judgment upon the Point But the Court would not admit the Matter to be Debated before them tho' divers Presidents of like nature were offered because they said they had declared their Opinions before and the Redress might be upon a Writ of Error Termino Sanctae Trinitatis Anno 35 Car. II. In Banco Regis Anonymus A Motion for a Prohibition to a Suit in the Ecclesiastical Court for a Churchwarden's Rate suggesting that they had pleaded That it was not made with the Consent of the Parishioners and that the Plea was refused The Court said That the Churchwardens if the Parish were Summoned and refused to meet or make a Rate might make one alone for the Repairs of the Church if needful because that if the Repairs were neglected the Churchwardens were to be Cited and not the Parishioners and a Day was given to shew Cause why there should not go to a Prohibition Termino Sancti Michaelis Anno 35 Car. II. In Banco Regis Gamage's Case ERror out of the Court of the Grand Sessions where in an Ejectment the Case was upon Special Verdict upon the Will of one Gamage who devised his Lands in A. to his Wife for Life Item his Lands in B. to his Wife for Life and also his Lands which he purchased of C. to his Wife for Life and after the decease of his Wife he gave the said Lands to one of his Sons and his Heirs And the Question was Whether the Son should have all the Lands devised to the Wife or only those last mentioned And it was Adjudged in the Grand Sessions that all should pass And upon Error brought it was Argued that they were Devises to the Wife in distinct and separate Sentences and therefore his said Lands should be referred only to the last On the other side it was said that the word Said should not be referred to the last Antecedent but to all If a man conveys Land to A. for Life Remainder to B. in Tail Remainder to C. in forma praedict ' the Gift to C. is void 1 Inst 20. b. It is agreed if he said All the said Lands to his Son and his heirs it would have extended to the whole This is the same because Indefinitum equipollet universali Et Adjornatur Herring versus Brown IN an Ejectment upon a Special Verdict the Case was Tenant for Life with several Remainders over with a Power of Revocation Levied a Fine and then by a Deed found to be Sealed ten Days after declared the Vses of the Fine which Deed had the Circumstances required by the Power The Question in the Case was Whether the Fine had extinguished the Power It was Argued that it had not because the Deed and Fine shall be but one Conveyance and the use of a Fine or Recovery may be declared by a subsequent Deed in the 9 Co. Downam's Case And a Case was Cited which was in this Court in my Lord Hale's time between Garrett and Wilson where Tenant for Life with Remainders over had a Power of Revocation and by a Deed under his Hand and Seal Covenanted to levy a Fine and declared it should be to certain Vses and afterwards the Fine was Levied accordingly This was held to be a good execution of the Power and limitation of the new Vses and the Deed and Fine taken as one On the other side it was Argued That the Deed was but an Evidence to what Vses the Fine was intended and the Power was absolutely revoked by the Fine Suppose he in Remainder had Entred for the Forfeiture before this Deed should the Defendant have defeated his Right Et Adjornatur Postea Hodson versus Cooke IN an Action upon the Case for commencing of an Action against him in an Inferiour Court where the Cause of Action did arise out of the Jurisdiction After a Verdict for the Plaintiff upon Not Guilty it was moved in Arrest of Judgment That it was not set forth that the Defendant did know that the Place where the Action arose was out of the Jurisdiction which it would be hard to put the Plaintiff to take notice of On the other side it was said that the party ought to have a Recompence for the Inconvenience he is put to by being put to Bail perhaps in a Case where Bail is not required above and such like Disadvantages which are not in a Suit brought here and the Plaintiff ought at his peril to take notice However to help by the Verdict And of that Opinion were Jeffreys Lord Chief Justice Holloway and Walcot but Withens contra The Court said that it could not be assigned for Error in Fact that the Cause arose out of the Jurisdiction because that is contrary to the Allegation of the Record neither is the Officer punishable that executes Process in such Action but an Action lies against the party And so it was said to be resolved in a Case between Cowper and Cowper Pasch 18 Car. 2. in Scac. when my Lord Chief Baron Hale sate there Anonymus AN Indictment of Perjury for Swearing before a Justice of the Peace that J. S. was present at a Conventicle or Meeting for Religious Worship c. It was moved to quash it because it did not appear to be a Conventicle viz. That there was above the number of Five and so the Justice of the Peace had no power to take an Oath concerning it and then it could be no Perjury To which the Lord Chief Justice said That Conventicles were unlawful by the Common Law and the Justices may punish Unlawful Assemblies And he seemed to be of Opinion that a man might be
and the Preferment of Her in Marriage and other good and valuable Considerations Give Grant Bargain and Sell Alien Enfeoff and Confirm unto the said Jane and her Heirs the said Lands And in the said Deed there was a Covenant that after due execution c. the said Jane should quietly enjoy and also a clause of warranty and the Iury found that there was no other Consideration than what was expressed in the Deed ut supra this Deed could not enure as a Bargain and Sale but it was adjudged that it should work as a Covenant to stand seised and Watts and Dix's Case was also cited Sty 188 204 where Rolls said if Lands are passed for Mony only the Deed ought to be enrolled but if for Mony and Natural Affection the Land will pass without Enrollment The Court here in the Principal Case inclined that this Grant would work as a Covenant to stand seised But Pollexfen Chief Justice was of Opinion that it ought to have been so pleaded and not to use the words concessit assign transposuit which is to plead it as a Grant at Common Law Powell and Ventris did conceive that it was pleaded sufficiently in regard it was said that by virtue of the Deed and Statute of Vses he became seised but leave was given by the Court to amend the Plea as the Defendant should see cause Bland versus Haselrig alios QUarto Jacobi Secundi the Case was an Assumpsit was brought against four who pleaded non Assumpsit infra sex annos and the Verdict was that one of the Defendants did assume infra sex annos and the other non assumpsit And it was moved that no Iudgment could be given against the Defendant upon whom the Verdict was found for this is an Indeb assump for Goods sold and 't is an intire contract and they must all be found to promise or else 't is against the Plaintiff Torts are in their nature several so one Defendant may be found guilty and the other not guilty but 't is not so in Actions grounded upon Contract Pollexfen Chief Justice Powel and Rokeby were of Opinion in this Case That the Plaintiff could not have Iudgment Ventris inclined to the contrary he admitted if an Indebitat ' assumpsit be brought against four and they plead non assumps and found that one of them assumed this is against the Plaintiff for he fails in his Action But in the case at Bar it may be taken that they did all promise at first and that one of them only renewed the promise within six years The plea of non assumpsit infra sex annos implies a promise at first and if one should renew his promise within six years 't is reason it should bind him and the Plaintiff must sue them all or else he will vary from the Original Contract But the Chief Justice seemed to be of an Opinion that if the promise were renewed within the six years yet if not upon a new Consideration it should not bind and if there were a new Consideration the Action will lie against him that promised alone Sed Quaere for the common Practice is upon a Plea of the Statute of Limitations to prove only a renewing the Promise without any further Consideration but a bare owning the Debt is not taken to be sufficient Quaere if the first Consideration upon repeating the Promise within six years be not enough to raise a new Cause of Action Iudgment was given for the Defendant Westby's Case WEstby brought an Action by Original and the Instructions to Cursitor for drawing of the Writ were Westby but the Writ was Westly and so all the Proceedings Afterwards the Court upon a motion ordered the Cursitor to attend who satisfied the Court that the Instructions were right and so they ordered the Original to be amended in Court and this without any application to the Chancery or Order from thence and they amended all the proceedings after Termino Paschae Anno 2 Willielmi Wariae In Communi Banco Ellis versus Yates IN an Action of Trespass the Writ was brought and so recited Quare clausum fregit herbam ibid ' crescent ' conculcavit consumpsit averia fugavit and the Declaration was Quare clausum herbam ibid ' crescent ' conculcavit consumpsit bidentes c. fugavit alia enormia c. Vpon Not guilty pleaded a Verdict was found for the Plaintiff It was moved in Arrest of Iudgment that fregit was omitted in the Declaration so one of the Trespasses contained in the Writ viz. the Clausum fregit was not mentioned in the Declaration and if the Writ contains more than is Declared for this is a Variance not aided by the Verdict 1 Cro. 329. Haselop and Chaplin where a Replevin was de averiis and declares only of an Horse and for that the Judgment was Reversed in a Writ of Error So where the Writ was Quare clausum fregit and the Declaration Quare clausum 1 Cro. 185. Edwards and Watkin Pollexfen Chief Justice and Rokeby were of that Opinion that Judgment should be arrested Ventris contra Powel being absent because the treading and consuming of the Grass necessarily implied a breach of the Close for there could not be an Entry without a Breach So the Declaration by necessary Intendment comprehended all that was in the Writ and to support the Verdict it was reasonable to intend no other breach of the Close than by a bare Entry But the other two said That there might be given in Evidence a breach of a Gate or Hedge and Damages might be given for that and then there was no ground for such Damage set forth in the Declaration And by the Opinion of the Chief Justice and Rokeby the Judgment was stayed Vid. Keilway 187. B. finding in a Verdict upon a Writ of Forcible Entry that the Defendant expulit disseisivit c. this implies it was Vi armis and yet that is the very point of the Action The Warden of the Fleet 's Case A Motion was made by the Warden of the Fleet for a Writ of Priviledge sitting the Parliament alledging that he was obliged to attend the House of Lords and therefore ought to be priviledged from Suits and divers Presidents were shewn where Writs of the like nature were granted to the Warden of the Fleet upon Motion one whereof was 2 Car. 1. and divers since that time some whereof appeared to be upon hearing of Counsel on both sides And the Court were at first inclined to grant him the like Writ but it being afterwards made appear to the Court that he was sued upon Escapes and the Court considering the great inconvenience that would ensue thereupon and being of Opinion that it was in their Discretion whether they would grant such Writ upon Motion or no. For they could not Iudicially take notice of this Priviledge of Parliament and therefore in case he had such Priviledge the Court said he might plead it
it could not appear upon the Record but that the Verdict was against the Plaintiff upon the mistake of the Action whereas here it appears upon the Matter at large set forth in the Special Verdict that Judgment was given against the Plaintiffs upon the Merits of of the Cause And the Court were of Opinion that the Plea in Bar was good in this Case but they took the Case of Putt and Royston to be a Case of the same nature For tho' the Issue were General yet in regard of the Averments which in every such Plea there must be it appears to the Court that the Matter was the same as well as here it doth upon the Special Verdict and if it were not the same so that the Plaintiff was barred to the former by mistaking the Nature of his Action the Averment might be traversed Therefore by reason of that Case Adjudged and the Importunity of the Plaintiffs Leave was given by the Court to speak further to the Case the next Term. The Earl of Mountague versus The Lord Preston IN an Action on the Case for the Profits of the Office of Master of the King's Wardrobe the Plaintiff Declared That King Charles the Second in the 23th year of his Reign granted him a Patent to hold the said Office for Life reciting a former Grant thereof to the Earl of Sandwich and the Surrender of that Grant And that the Defendant by colour of a Patent granted to him in the First year of the late King James had entred upon the Office and taken the Profits and had deprived the Plaintiff of the whole benefit and profit of the Office Vpon Not guilty pleaded it came to a Trial at the Bar this Term and it was insisted upon for the Defendant That the Plaintiffs Patent having recited a former Grant that they must prove that Grant to have been surrendred To which it was Answered That if they took advantage of the Recital they must admit all that was recited as well the Surrender as the Grant And of that Opinion was the Court. Then the Defendant produced the Earl of Sandwich's Patent and this the Court held would put the Plaintiff to prove a Surrender And a Surrender was shewn in Evidence accordingly Note It was said in an Action of this Nature that it is not necessary to shew every particular Sum received by the Defendant But it is a good Evidence for the Damage to shew the Profit of the Office communibus annis Anonymus AFter an Extent upon a Statute and a Liberate out of this Court the Writ was Habere fac ' terr' tenementa instead of Liberari facias and it was moved to amend the word Habere in the Writ and to make it Liberari And after divers Motions the Court Ordered the Amendment to be accordingly because it is a Judicial Writ 8 Co. 157. a. 1 Cro. 709. A Writ of Enquiry was awarded to the Sheriffs of London and it was quod Inquirat instead of Inquirant and it was amended Vid. the Case of Walker and Riches 3 Cro. 162. and the Case of Keer and Guyn Hob. 90. but in that Case the Roll was wrong in a very material thing for it was not said in the Elegit the Lands and Tenements of the Defendant Anonymus AN Action of Debt was brought in this Court for a Sum of Money recovered in the Hundred Court and the Defendant was admitted to wage his Law tho' at first the Court doubted Vid. Mo. 276. for a Wager of Law to an Action of Debt brought for an Amercement in a Court Baron Note When the Defendant hath his Hand upon the Book before he is sworn the Plaintiff is to be called and he may be Non-suited The Defendant is to bring his Compurgators but they may be less than Eleven and they are sworn de credulitate Anonymus AN Action was brought for speaking of these words of the Plaintiff He broke my House like a Thief And upon Not guilty pleaded a Verdict was found for the Plaintiff And the Court held the words not to be Actionable Anonymus IN an Action for Words spoken of the Plaintiff in saying He was a Clipper and Coiner After Verdict upon Not guilty pleaded it was moved in Arrest of Judgment that the Words did not charge him with Clipping and Coining of Money and Clipping and Coining might be apply'd to many other things But the Court held the Words to be Actionable in regard of the strong Intendment and such Words are understood by those that heard them to mean Clipping and Coining of Money Anonymus AN Attorney brought an Action for that the Defendant said of him He is a Cheating Knave and not fit to be an Attorney After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Communication of his Profession and the Words did not necessarily relate to his Practice But the Court held the Action would lye for saying That he was not fit to be an Attorney shewed plainly that Cheating Knave had reference to that Anonymus UPon a Motion for a New Trial it appeared that the Solicitor for the Plaintiff who also was an Attorney had wrote two Letters to two of the Jury before the Trial importuning them to Appear and setting forth the Hardships that his Client had suffered in the Cause and how he had Verdicts for his Title The Court set aside the Trial for this Cause and Committed the Solicitor to the Fleet for this Misdemeanor being Embracing of a Jury and before his Discharge made him pay Ten pounds to the party towards the Charges of the Trial. Pretious versus Robinson THe Cause being at Issue in Hillary Term last a Venire was awarded and a Jury Retorned upon it and in Easter Term after another Venire was awarded and a Trial was by a Jury Returned upon the two Venire's Vpon this the Court set aside the Verdict for there was no Authority for the two Venire's so all the Proceedings thereupon are void and not aided by the Statute of 16 Car. 2. Cooke versus Romney AN Action of Covenant was brought against two and it was quod teneat conventionem instead of teneant and after a Writ of Error brought it was moved that it might be amended and made teneant It was Objected That False Latin in an Original could not be amended as hos breve for hoc breve so in Waste destrictionem for destructionem Blackamore's Case 8 Co. But the Court granted the Motion and ordered the Amendment And it was said of late days it had been done in case of a word Mistaken in an Original as in Ejectment divisit for dimisit Vid. in Blackamore's Case the like 159. b. Imaginavit for imaginatus est was amended Anonymus IN Trover and Conversion for a Mare Vpon Not guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Mare was said ad valentiam and it should have been pretii Sed non
non habet nec per legem terrae tenetur aliquo modo respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' replicaconis in hac parte Idem Samuel ut prius pet ' Judicium Et quod praedict ' Juditha ab accone sua praed ' habend ' praecludatur c. Et praedict ' Juditha ex quo ipsa sufficien ' Joynder in Demurrer materiam in lege ad acconem suam praedict ' versus praefat ' Samuel ' habend ' manutenend ' superius replicando allegavit quam ipsa parat ' est verificare Quam quidem materiam idem Samuel non dedic ' nec ad eam aliqualit ' respond ' sed verificacon ' ill ' admittere omnino recusat ut prius pet ' Judicium debitum suum praedict ' unacum dampnis suis occone detenconis debiti ill ' sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedict ' hic usque à die Paschae in quindecim dies de audiendo inde Judicio eo quod iidem Justic ' hic inde nondum c. Judith Hanson versus Liversedge IN an Action of Debt upon a Bond the Condition was to perform the Award of two Arbitrators in Writing or by word of Mouth The Defendant pleaded Nullum fecerunt arbitrium The Plaintiff replies That at the time of the Bond and Award she had an Action against the Defendant for scandalous Words and that the Arbitrator did make declare and publish their Award in manner and form following viz. That the Defendant should pay to the Plaintiff 12 Guinea's and all such Moneys as she had expended circa prosecutionem placiti praedict ' and that the parties should give mutual Releases of all Matters to the Date of the said Bond and saith that she laid out in the said Suit 11 l 7 s and demanded the said Sums of Money of the Defendant and protestando that the Defendant had not paid her the 11 l 7 s dicit in facto that he had not paid the 12 Guinea's awarded as aforesaid hoc parat ' est verificare c. To this the Defendant Demurred And Pemberton for the Defendant said First This Award as set forth appears to be void for 't is to pay the Charges expended circa placit ' praed ' and the Award doth not mention any Suit before and tho' the Plaintiff in her Inducement saith That she had an Action for Words against the Defendant then depending that will not help it for that is no part of the Award but the Award in the Form as 't is set forth is unintelligible there being no Suit mentioned before to refer placit ' praedict ' unto Secondly 'T is not sufficient to Award payment of the Charges in such a Suit it being altogether uncertain what the Sum will amount to Thirdly It ought to have been shewn that the Plaintiff had a Cause of Action in the Action that is mentioned to have been brought against the Defendant for Slander and so is Spigurnell's Case in Siderfin 1st Part 12. Curia As to the first if the Award were in Writing in such form of Expression it could not be good but he which sets forth an Award by Parol is not tyed to the words for the precise words might be very difficult to prove but 't is sufficient to shew the effect and substance of what was awarded by Word of Mouth and 't is sufficiently shew that this Award was made concerning that Action of Slander For the Second the Court held that the Award was good for it may be easily reduced to a Certainty when 't is made appear what was laid out in that Suit as in 1 Roll. Abr. 251. Beale and Beale and in the 3 Cro. 383. to pay the Charges of such a Voyage held a good Award Thirdly The Plaintiff need not shew that there was Cause of Action for that is left to the Arbitrators and they have power to award Charges thereupon tho' in point of Law there were no Cause of Action for the Parties have made the Arbitrators their Judges And the Court were not satisfied with the Opinion Reported by Syderfin in Spigurnell's Case and said he was then a young Reporter Whereupon Judicium pro Quer ' Major probi homines de Guldeford versus Clarke Surr ' ss JOHANNES CLARKE nuper de Guldeford ' Debt upon a By Law made by a Corporation by Prescription in Com' praedict ' Dyer Sum ' fuit ad respondend ' Majori probis hominibus Villae de Guldeford ' in Com' Surr ' de placito quod reddat eis viginti libras legalis monet ' Angl ' quas eis debet injuste detinet c. Et unde inde iidem Major probi homines Villae de Guldeford ' praed ' per Henr ' Dyve Attorn ' suum dic ' quod cum praedict ' Villa de Guldeford ' in dicto Com' Surr ' est antiqua Villa quodque probi homines ejusdem Villae à tempore cujus contrarij memoria hominum non existit fuer ' Antiqua Villa adhuc existunt corpus Corporat ' Politicum in re facto nomine per nomen Majoris proborum homin ' Villae de Guldeford ' in Com' Surr ' A Corporation time out of Mind To implead and be impleaded per idem nomen usi fuer ' placitare implacitari respondere responderi Cumque etiam infra Vill ' ill ' habetur à toto tempore supradict ' cujus contrar ' memoria hom ' non existit habebatur talis consuetudo usitat ' approbat ' quod Major probi homines Villae praedict ' pro tempore existen ' vel major pars eorundem in Com' A Custom to make By-Laws Concil ' congregat ' assemblat ' usi fuer ' consuever ' facere constituere leges constitucones pro bono regimine gubernacone Villae praed ' inhabitan ' ejusdem poenas poenalitat ' For good Government of the Corporation And to impose Penalties Custom to elect a Bayliff Annually super personas contra leges constitucones ill ' delinquen ' imponere Cumque etiam infra Villam praedict ' fuit antiquus Officiarius annuatim quolibet anno super diem Lunae prox ' post Festum Sancti Michaelis Archi ' pro uno anno tunc sequen ' per Majorem probos homines praed ' elect ' vocat ' Balliv ' ejusdem Villae ad negotia ejusdem Villae peragend ' Cumque etiam praed ' Major probi homines Villae praed ' The By-Law set forth secundo die Octobris anno regni domini Caroli secundi nuper Regis Angl ' c. tricesimo quarto apud Vill ' de Guldeford praedict ' in Com' Consilio adtunc ibidem congregat ' assemblat '
the Defendant shew Cause why he should not accept of a Declaration upon payment of Costs Termino Paschae Anno 22 Car. II. In Banco Regis Anonymus IF there be several Contracts between A. and B. at several times for several sums Prohibition each sum under 40 s and they do all amount to a sum sufficient to Entitle the Superiour Court they shall be there put in Suit and not in a Court which is not of Record And so it was resolved in the Case of the Savoy Court and Stanford 24. C. 2. Also it was said That if a Man at divers times Steals things all which amount to above 12d 't is Felony Capital In an Account after a Quod computet the Court Assigns Auditors and they sit upon and return the Account when they will for day is not given them and they give the Parties in the interim what time they please but if the Defendant delays they return it to the Court and Process goes out against him Nota Memorandum On Tuesday April the 26th Steven Mosdel to whom Mr. Lenthal had granted the Office of Marshal of the Kings-Bench for life was sworn Marshal The Oath was this Viz. You shall swear that during the time of your being Marshal you shall well and truly use exercise and behave your self in the said Office you shall encrease no Fees and in all things shall do your Duty in the said Office c. It was resolved That the said Stephen Mosdel could not afterwards practise as an Attorney of this Court and that Mr. Lenthall Marshall in Reversion had no Priviledge Anonymus A Promise was made to give 1000 l to one for curing of his Eyes and an Assumpsit is brought Vpon this the Jury may give less than 1000 l Damages if they think fit Sir W. Mewes versus Mewes A Title of Land was tryed out of the proper County upon a feigned Wager Whether well conveyed or no this is the Course of Issues directed out of Chancery Note In this Case a Bill in Chancery was given in Evidence against the Complainant though held to be but of slight moment Smiths Case SMith and other Commissioners of Sewers which sate at White-Chappel were brought in upon an Attachment awarded against them for a Contempt of this Court. And the Case was thus A Certiorari was lately sent and delivered to them out of this Court upon Special direction and recommendation by the King and Council before whom the Business had been agitated to remove hither Certain Orders and Proceedings of theirs in order to a Tryal of the Right of the Matter in Question At first they did not allow the Certiorari but afterwards having allowed it they proceeded de novo upon the same Matter and made an Order again which certain persons being the same persons who procured the Certiorari refusing to obey the Commissioners fined them 10 l apiece Then a second Certiorari was taken out and delivered to them after which they imprisoned persons for not executing and obeying of a Warrant made upon their second Order and for speaking Contemptuous words of the Commissioners and fined them 5 l apiece Being now questioned by the Court concerning these Contempts and Misdemeanours They said they did this wholly by the advice of their Counsel Mr. Ofley who being in Court received a severe Reprimand therefore and the Commissioners were committed to Prison About the Fortnight afterwards having made and Filed their Return they were brought into Court to receive the Sentence of the Court. And then it was said by them and Coleman their Counsel that they would not urge any thing in justification of their not returning their Proceedings they only offered that what they did was by the advice of their Counsel and that the Clause in 13 Eliz. cap. 9. was so penned as to give a great occasion of doubt in this particular which Clause upon their desire was read And is this And be it further Enacted c. That from henceforth the said Commissioners of Sewers nor any of them shall not be compelled or compellable to make any Certificate or Return of the said Commissioners or any of them or of any of the Ordinances Laws or doings by the Authority of any of the said Commissions nor shall not have any Fine Pain or Amerciament set upon them or any of them or any ways to be molested in Body Lands or Goods for that Cause and after the reading thereof the Court delivered themselves seriatim as followeth Moreton This is a great Offence and Contempt The Commissioners of Sewers and their Proceedings are subject to the Jurisdiction of this Court Sir Henry Mildmayes Case 2 Cro. 336. and Sir H. Hungates in our Memory If Commissioners of Sewers or any other inferiour Jurisdiction excéed their Commission we may reform and restrain them and it nay we prohibit them in Cases where They have no Jurisdiction of the matter Many presidents are with us in the present Case And we cannot answer our Duty to the King without taking notice of and punishing this Offence Therefore my Opinion is That for their not obeying of the first Writ they be fined 40 Marks apiece and for their not obeying of the second Writ 20 Marks apiece Rainsford This is indisputably an Offence and Contempt and the greater for that it was seconded It is aggravated too in that the Commissioners proceeded after they had allowed the Certiorari and that they fell upon and shewed their Indignation against those persons who only pursued the Kings Authority and that this was in a Case which was recommended by the King and Council to which Recommendation the Commissioners were Privy they had contrary advice from other Counsel then there but they would hearken to that advice which pleased them best Obedience is that Ligament of the Government without which all will be turned into Anarchy and Confusion Without betraying the Trust reposed in us by the King and violating of our Oaths we cannot omit to punish this therefore I agree the Fines The Reason of the Fines is the disobeying of the Writs the Reason of their disproportion is to resemble the Measures the Commissioners observed towards those persons whom they unduly fined Twisden It was resolved in 23 Car. That this Statute hath no reference to this Court and that this Clause extends only to Certificates and Returns into Chancery the Statute speaks of Supersedeas c. which issue out of the Court of Chancery only for this Court does not nor ever did send out Supersedeas's but this Court sends out Certiorari's which are to bring the business before the King here and the words of them are quia coram nobis terminari volumus non alibi What should move that Gentleman to give such advice as he did I cannot imagin I suppose there is more in the matter than we know and 't is a strange thing that these Commissioners should ask Counsel whether they should obey the Kings Writ or no Especially when it
brought in all their Names and it was Resolved in the Kings-Bench that the Action was well brought and affirmed upon a Writ of Error in the Exchequer Chamber But if in the Case at Bar they ought to joyn they must appear by Guardian It having depended divers Terms It was now Resolved by Rainsford and Moreton that the Action was well brought and they relyed upon the Case in Yelverton and they said the Case of Hatton and Mascue was no Authority against it for there they were named and where some are of Age no Administration durante minori aetate is to be granted They held also that the appearance ought to be by Attorney because they joyn with others and so in auter droit and so is 3 Cro. 377. the Countess of Rutland's Case and 541. Resolved that an Infant Administrator shall sue by Attorney See 1 Roll. 288 and 2 Cro. 420 421. Cotton and Westcote's Case The difference is taken where an Infant Executor is Defendant and where Plaintiff and Judgment given for him in which last Case only the appearance by Attorney is said to be good Twisden contra An Infant cannot in any wise sue or defend by Attorney First Because he cannot make an Attorney Secondly If it should be allowed he might be amerced pro falso clamore and no way to avoid it but by bringing a Writ of Error Thirdly He might be injured by the Attorney's Plea and could not remedy himself as he may against his Guardian as if in Debt the Defendant should plead a Release and the Attorney confess it And he cited a Case in this Court Mich. 1649. between Colt and Sherwood Where an Administrator brought an Action and it appeared by the Record that he was above 17 yet it was Ruled he ought to sue by Guardian For tho' by the Civil Law he was of Age to undertake the Administration yet the manner of his Suing was to be determined by our Law and that could not be by Attorney until the age of 21. Another Case be cited between Peyton and Dorce adjudged in the Court upon a Writ of Error out of the Petit Bag where Peyton sued as Administrator and the Entry was Quod queritur and did not express whether per Attornat ' Guardianum or how and had Judgment and Error was brought in this Court and these Four Points were Resolved First That a Writ of Error did lye out of the Petit Bag into this Court upon an Error in Fact Secondly That the Entry being General it should be taken that the appearance was in propria persona Thirdly That the Plaintiff being an Infant tho' an Administrator could not sue or appear but by Guardian or Prochein amy Fourthly That the Statute of Jeofails did not aid this Case which expresses only the Defendant's appearing by Attorney As to the other Point He inclined that the Action brought by them all was well enough But he acknowledged that much might be urged against the Case of Hatton and Mascue for the naming of them could signifie nothing not being made parties to the Action But he was not so much swayed by that Authority because he held that the Cause did not come well into the Exchequer Chamber being a Scire facias upon which he said no Writ of Error lay thither tho' upon a Judgment no more than upon a Recognizance and said They did joyn here as it were for Conformity As if a Feme Infant be made Executrix and Marries the Administration durante minori aetate ceases tho' she be under 17 and she and her Husband shall Sue The Chief Justice was absent being Sick and so the Plaintiff had Judgment by the Opinion of Rainsford and Moreton Ward versus Rich. WArd brought an Action against Hatton Rich de uxore abducta and keeping of her from him usque such a day which was sometime after the exhibiting of the Bill and concluded contra formam Staturi After Verdict for the Plaintiff it was moved in Arrest of Judgment and the Declaration was held good notwithstanding the impertinent Conclusion of contra formam Statuti there being no Statute in the Case Secondly The Court Resolved that Judgment should be stayed for the Jury shall be intended to give Damages for the whole time mentioned in the Declaration As in Trespass with a Continuando to a day after the Writ brought the Plaintiff shall not have Judgment after Verdict which gives Damages by Intendment for the whole time declared for And Twisden said These two Cases were Resolved A Tradesman brought an Action in an Inferiour Court for slandering of him in his Trade by which he lost his Custom within the Iurisdiction of that Court alibi and it was held maintainable notwithstanding the alibi The other was an Action brought upon the Sale of several things for divers Sums of Money quae quidem pecuniarum summae attingunt ad 10 l whereas rightly computed they came but to 9 l The Jury gave Damages less than 9 l and it was held good But if the Verdict had been for 10 l it had been naught The King versus Ledgingham AN Information was brought against Ledgingham for that he being a man of an unquiet Spirit communis perturbator oppressor vicinorum tenentium had taken excessive Distresses of divers of his Tenants After Verdict for the King at the Assizes it was said That no Judgment could be given upon this Information which was said to be defective both in matter and form It hath been often Ruled that Communis oppressor or such like General words without particularizing Offences was insufficient in an Indictment or Information unless the word Communis Barrectator which is of known signification in Law and comprehends divers Crimes and Twisden said is as much as Common Knave 9 Ass 2. Communis latro not good Vid. Roll. 79. Moor 451. neither can an Information be exhibited for taking of excessive Distresses for that was not punishable until the Statute of Marlebridge cap. 4. which saith that he that so Distrains shall be amerced whereas upon an Information he must of necessity be fined 2 Inst 107. Again It ought to have been expressed upon what Tenants the Distresses were taken with their Names otherwise it is too incertain One was Indicted for that he serving upon such a Grand Enquest did reveal the Secrets of the King and himself It was Resolved to be ill because not expressed what Secrets Moor 451. and of this Opinion was the Court in omnibus Ante. Pierson versus Ridge IN Replevin the Defendant made Conusans as Bayliff to a Lord of a Mannor who had a Court Leet by Prescription and laid a Custom for such a Township to send one to be sworn Constable there which not being done a Fine was set and this Distress taken for it Vpon which it was Demurred because no Custom was alledged to warrant the Distress For tho' of common Right a Distress may be taken for a Fine in a Court Leet that
if the Heirs satisfied the Office of their Title without pleading as where Conusans of Pleas have been once allowed it is sufficient in another Action to shew the former Roll where it was alallowed Note An Indictment for a Nusans in the High-way The Court will not quash this Indictment upon Motion unless certified that the Nusans is removed But they will Reverse it upon a Writ of Error if their be Error in it without any such Certificate Iles Case A Mandamus was prayed to the Churchwardens of the Parish of Kinsmere in Hampton to restore John Iles to the place of Sexton there and it was granted And so the Court said hath béen for a Parish Clark Churchwardens a Scavenger But it was denied to one who pretended to be Master of the Lord Mayors Waterhouse for that they said was not an Office but a Service Anonymus A Fine was levied of Lands in Blandford Forum Resolved That this should not pass Lands in a Hamlet of that Town there being Constables distinct in Blandford Forum from others that were in the Hamlet so that they were as two Vills But if a Fine be levied of Lands in a Parish it shall extend to all the Vills within the Parish The Lord Hawley's Case A Mandamus was granted to restore him to the Recordership of Bath The Corporation returned That they were Incorporated by Letters Patents of Queen Elizabeth which empowered them to chuse probum discretum hominem in legibus Angliae peritum to be their Recorder and to hold a Court twice every Week before the Mayor Alderman and Recorder or any two of them whereof the Mayor to be one That the 1st of August 15 of this King he was made Recorder by the Committee upon the Act of this King for regulating of Corporations and that he continued in the Office Secundum locationem illam until the 25 of December 21 of the King and that from the 1 of August 15 of the King to August 21 he absented himself by the space of five years without any reasonable Cause and that he is nullo modo peritus in lege and that at a Court August the 21 they summoned him to appear some days before and he not coming they amoved him from his Office the 30 day of the said August After this Return filed it was moved First That it was repugnant for they returned That the Lord Hawley continued in his Office until the 25 of December 21 of the King and after that they amoved him in August 21 of the King To which it was answered That in regard upon the whole return it appears that he was amoved though it be said he continued after that is not material but surplusage As where a Jury gives a general Verdict and yet discloses special matter disagreeing to it the Court judges according to the special matter or else they might mean that though he were turned out yet he did continue exercising it de facto And the Court were of Opinion that the contradiction in the Return was not material For Hale said If it shall be taken that he is yet in then there is no need of a Mandamus Again it was said That the matter of absence was not sufficiently returned for it appears by the Charter that the presence of the Recorder is not necessary to the holding of the Court for it is to be held before the Mayor Aldermen and Recorder or any two of them whereof the Mayor to be one then they have not returned that they held a Court in all that time neither have they returned that any mischief or inconvenience happned to them by his absence A Park-keeper shall not forfeit his Office for Non-attendance unless a Deer be killed or the like in his absence Also it is returned from the 1 of Aug. 15. Car. to the 1 of Aug. 21. he absented himself for five years and he might be out of Town five years in six years time and yet be there every Court day And for the other cause of removal that he was not peritus in lege It was said That the Corporation being Laymen could not return a thing whereof they were not Judges That the Return was too general nullo modus peritus but ought to have set forth some special Fact whereby it might appear to the Court. Also They could not remove him for a Cause which they could not examin he was put in by Commissioners authorised by Act of Parliament which it was said did capacitate implicitely him at least their Act supplied the Election of the Town which if it had been would have dispensed with his disability And the Case of Bernardiston Recorder of Colchester was much relied upon who in 1655 brought a Mandamus to be restored to his Office And it was returned That he was not learned in the Law and that one being indicted before him upon the Statute of 1 Jac. of having two Wives and convicted he denied him Clergy and also they returned That he absented himself for nine Months and notwithstanding by the Iudgment of the Court he was restored It was said by Sir William Jones on the other side That the absence as it was returned was sufficient Cause to remove him for it is returned That without any reasonable Cause seipsum elongavit by the space of five years which must be intended five years continued and not made up by Fractions and so held the Court in that Case and executionem officij sui totaliter neglexit Now tho' his Presence be not of absolute necessity to the holding of the Court yet it is highly convenient that he should be there seeing the Charter gives such large Iurisdictions to determine all Causes excepting such as concern Freehold according to Law The Court here also must judicially take notice That the Office of Recorder is concerned in other matters besides the Administration of Justice in the Court for he is as it were the Common Counsel of the Corporation And whereas it hath béen objected That it is not returned that they had held a Court during his absence or that any prejudice had ensued Also That it must be intended that there were Courts when they have returned the Charter which empower them to hold one twice every week and 't is returned That he absented himself in Regiminis Civitatis detrimentum c. and ' its apparent they must suffer prejudice by so long absence If a Park-keeper should desert his Office for five years it would make a Forfeiture without Special Damage The other matter returned also That he is nullo modo peritus in lege is good Cause for the Charter appoints them to Elect such an one so one that is not so qualified is not capable and the Act of this King authorises Commissioners but to do what the Corporation might have done It is apparent That the Office requires skill in the Law he hath no power to make a Deputy by the Statute of 21 Jac. Causes in many Cases are
Note directed to the Defendant whereby he required the Defendant to pay him who upon view of the Note in Consideration that the Plaintiff would accept of his Promise and forbear him a Fortnight promised to pay him the Money There after Verdict for the Plaintiff Judgment was Arrested because that was held no Consideration Sed non allocatur For Hale said When Assumpsits grew first into practice they used to set out the Matter at large viz. in such a Case as this Quod mutuo aggreatum fuit inter eos c. and they should be discharged one against the other but since it hath been the way to declare more concisely And upon the whole Matter here it appears that the Defendant agreed to this Transferring of the Debt of J. S. to the Plaintiff and that it was agreed that he should be discharged against J. S. And he said that the Case of Davison and Haslip hoc Termino ante was to the same effect And for Clipsham's Case that was said to be good Law for there it did not appear that the Defendant was at all Indebted to him that sent the Note Sir William Hicks's Case DEbt was brought against him by the Name of Sir William Hicks Knight and Baronet He pleaded in Abatement that he was never Knighted The Plaintiff moved that he might Amend an that he had put in Bail by the Name of Knight and Baronet so that he was concluded to alledge this Matter which the Court agreed if it were so But it was found to be Entred for William Hicks Baronet only So they said they could not permit any Amendment but the Plaintiff must of necessity Arrest him over again Fisher versus Batten A Bill was Exhibited in the Dutchy Court to be relieved against the Forfeiture of a Mortgage of Lands lying within the County of Lancaster The Defendant prayed a Prohibition Surmizing that the Lands in question were not the Kings Lands or holden of him and therefore he ought not to Answer in the Dutchy Court And the Court appointed to hear Counsel on both Sides whether or no this Prohibition were to be granted And it was Argued by Sir William Jones for the Prohibition That a Court of Equity must begin by Prescription or Act of Parliament That there can be no Prescription in this Case for both the Dutchy and County Palatine of Lancaster began within time of Memory Henry Father of John of Gaunt was the first Duke of Lancaster and he was made so in Edward the Third's time and then Lancaster was made a County Palatine The Act of Parliament upon which this Case must depend is that of 1 Ed. 4. which takes notice that the Dutchy and County Palatine of Lancaster were forfeited to the Crown by the Attainder of H. 6. and Enacts That they shall be separate and distinguished from other Inheritances of the Crown and appoints a Chancellor for the County Palatine and a Chancellor for the Dutchy and that each should have his Seal so that the Chancellor of the Dutchy is not to intermeddle in the County Palatine which hath a Chancellor of its own for Matters there Counties Palatine had their Original from a Politick Reason and Lancaster Durham and Chester were made so probably because they were adjacent to Enemies Countries viz. the two first to Scotland and Chester to Wales so that the Inhabitants having Administration of Justice at home and not being obliged to attend other Courts those parts should not be disfurnished of Inhabitants that might secure the Country from Incursions 'T is true of a long time the Chancellorship both of County and Dutchy have been in one Person but 't is the same thing as if there were two for the several Capacities remain distinct in him The first Patent that made it a County Palatine Ordained that it should have Jura regalia ad Comitatum Palatinum pertinen ' adeo libere integre sicut Comes Cestriae Com. 215. infra eundem Comitat ' Cestriae dignoscitur obtinere c. So that by that the Jurisdiction ought to be exercised within the County They have shewn indeed a multitude of Presidents but I can hear but of One for the first Fifty years after 1 Edw. 4. most of the other are of Personal things and of the rest divers began in the County Palatine and were transmitted to the Dutchy Court As they may send Causes out of the Courts there to be Argued in the Kings Bench but doubtful whether the Court here can give Judgment They have very few Presidents of Causes which commenced Originally in the Dutchy Court which is but a Court of Revenue 4 Inst The Court of Requests had a multitude of Presidents but could not thereby gain it self any Jurisdiction 4 Inst 97. Holt's Case Hob. 77. A Bill was Exhibited to be relieved against the Penalty of a Bond which concerned an Extent of Lands within the County Palantine and a Prohibition was granted for the Dutchy Court is said there to have nothing to do but with the Kings Land and his Revenue Vid. Rolls accordingly Weston contra We cannot pretend to a Court of Equity by Prescription but we have Presidents of above Two hundred years last past as well of Bills retained which commenced Originally here as of those transmitted and that of Transmission is agreed on the other side which proves the Jurisdiction For if a Certiorari or Corpus cum causa should go out of the Kings-Bench Conusans of Pleas might be demanded and so to stop the Removing of the Cause out of the Inferiour Court We maintain our Jurisdiction upon the Statute of 1 Ed. 4. before which the County Palatine and Dutchy of Lancaster were distinct as they were 1 H. 4. by which Act they were both severed from the Possessions of the Crown But now 1 Ed. 4. makes one Body of these distinct Bodies and gives a superiority to the Dutchy over the County Palatine for that is annexed unto and made parcel of the Dutchy as the supream Name of Corporation The Words of the Act are That our Liege and Sovereign Lord King Edward the Fourth and his Heirs have as parcel of the Dutchy the County of Lancaster and County Palatine and there is a Chancellor and Seal appointed for the County Palatine and a Seal also for the Dutchy and a Chancellor there for the keeping thereof and Officers and Counsellors for the Guidance and Governance of the same Dutchy and of the particular Officers Ministers Tenants and Inhabitants thereof So that the Act having Constituted a Chancellor indefinitely over the Dutchy and not circumscribing his Power it is not reason to exempt any part of the Dutchy and that the County is by force of this Act. In the 4 Inst 119. it is said that seeing there hath been time out of mind a Chancellor of the Exchequer that there should be also in the Exchequer a Court of Equity So the Book of the 2d of H. 8. and Rolls Tit. Prohibition to the
de gard in what County soever the Orphan was taken so they may punish an unlicensed Marriage Wallers Case 22 Jac. was the same with this which was resolved for the City It appears by the Return that Harwood was present in Court and Hale said they could not award Process into a Foreign County 3. It doth not appear by the Return that the Mayor and Aldermen are to have the Fine and then it shall not be so intended But in Eastwick and Langhams Case which Langham was fined for refusing the Office of a Sheriff being a Freeman it was held they might set the Fine tho' they were to have it themselves 4. It was held the Fine was not excessive But in regard there was no disparagement by the Marriage it was propounded by the Court that upon the submission of Harwood to the Court of Orphans that they should do well to remit the Fine St. Aubin versus Cox A Prohibition was prayed to the Court of the Compter in Woodstreet London to an Action of Debt there commenced for that the Defendant had pleaded before any Imparlance taken that the Cause of Action did arise at a place out of their Jurisdiction and offered to have Sworn his Plea and they refused to accept this Plea Vpon this Matter a Prohibition was granted for Inferiour Courts have not Cognizance of Transitory things which arise in places out of their Jurisdiction as F. N. B. 45. is But then 't is not sufficient to surmize such Matter for a Prohibition but a Plea to that effect must be tendred in the Inferiour Court and that before any Imparlance taken whereby the Jurisdiction would be admitted and it must be upon Oath and then if refused a Prohibition shall be granted or upon such Refusal a Bill of Exceptions may be made and Error assigned Fitz. N.B. 21. N. The King versus Serjeant and Annis THey were Indicted of Perjury committed in their Evidence given upon an Indictment of Barretry against Nurse the Record of which was recited in this Indictment and therein it appeared that the Venire was made Returnable coram J. S. J. N. Justiciariis praedictis and at a day certain and Judgment given and Error brought and assigned that the Venire being Returnable coram Justiciariis praedictis none but the same Justices could proceed and not those who late the next Assizes by virtue of a New Commission And therefore the Proceedings before them were coram non Judice and so no Perjury could be committed Secondly The Venire should not have been Returnable at a Day certain but ad proximas Assisas because 't is uncertain when the Assizes begin and if they should fall out to begin upon the very Day yet it would not help the Error in the first award of the Venire Sed non allocatur For the Statute of 1 2 E. 6. enables New Commissioners of Oyer and Terminer to proceed where the former left before whom the Matter commenced And for the other Exception it makes the Proceedings only Erronious and while the Record stands unreversed the Perjury may be well assigned It was said at the same Assizes that the Judges may Adjourn to a Day certain but if there be a Continuance over to the next Assizes there must be no day expressed But Inferiour Courts cannot make a Continuance ad proximam Curiam but always to a Day certain Stanlack's Case UPon an Inquisition super visum Corporis before the Coroner it was found that he died of a Meagrim at Greenwich Sir Edward Thurland moved for a Melius Inquirendum producing several Affidavits That Stanlack was Riding in the High-way and a Coach with six Horses rushing by him cast him from his Horse and killed him and that divers offered to prove this before the Coroner and he would not hear them And if this Enquest should stand the King would lose his Deodand and alledged that there were several Presidents of this Nature as in one Michael Bartholomew's Case and Toom's Case who Hanged himself at Hackney about 15 years since The Court said in those Cases it was proved that there was Practice with the Coroner to suppress the King's Evidence and so the Inquisition was set aside upon a Malê se gessit If a Coroner omits to enquire this Court as Supream Coroner throughout England may Enquire or may make Commissioners to Enquire or Commissioners of Oyer and Terminer may Enquire but then it is not Super visum corporis and therefore may be Traversed But Hale said Where a Coroner hath Enquired no Melius Inquirendum can go as upon an Office found after the Death of the King's Tenant For unless they could take some Exception to the Inquisition to quash it the Coroner could not Enquire again but if the Misdemeanour of the Coroner were somewhat more clearly made out the Court said they would set the Inquisition aside and cause a New one to be made Maynard's Case HE being produced as a Witness in an Action of Trover against Reynell Corey and others for 12000 l which the Defendants were charged to have conveyed away which was the Money of Mr. Luttrell lately deceased and belonged to Mrs. Luttrell now Plaintiff as Executrix He Swore that the Defendants had the Money and carried it out of the House wherein Mr. Luttrell died and upon his Evidence principally the Jury found the Defendants Guilty Now the last Easter Term which was about a year and an half since the Trial Maynard made an Affidavit in the Kings-Bench that Mrs. Luttrell had Arrested him amongst the rest for the Taking away of this Money and he being unable to put in Bail and apprehensive of the Ruin that lying in Prison would bring upon him he applied himself to Mrs. Luttrell who promised him Favour so that he would accuse Reynell and the other Defendants with the taking of the Money and be a Witness against them and that he was Examined before a Justice of the Peace one A. who did much urge him to depose against Reynell in this Matter And that by their Threats and Promises he was brought to give False Evidence and that what he said in his Testimony relating to the Defendants taking away the Money was untrue After this Affidavit made he was Indicted of Perjury in what he Witnessed in the Action of Trover and confessed the Indictment Mrs. Luttrell thinking this matter might disparage her Verdict brought an Information against him of Perjury committed in his Affidavit to which he pleaded Not Guilty but before the Trial made an Escape so that at the Day the Enquest was taken by Default The Court were at first in doubt whether they should proceed upon the Information the King having taken his Confession upon the first it seemed contradictory and repugnant to prosecute him upon this But in regard the Affidavit charged Mrs. Luttrell and others with having suborned him to perâ—ure himself he might be tryed upon that as another distinct Perjury if so be they should be
clear of having practiced with him And upon the tryal of this Information it did appear that he had charged them falsly and so found Guilty Another Matter was moved That the Indictment alledged the Perjury to be committed in Middlesex whereas it appeared by the Affidavit produced that it was taken at Justice Twisden's Chamber in the Inner Temple wherefore it ought to have been tryed in London where the Oath was taken and tho' the Affidavit were Filed in Court that would not help it But the Court agreed if it had been in an Indictment it had been a good Objection for there the Offence is local but otherwise they said it had been held in an Information And Twisden said That if a Recognizance were taken at a Judges Chamber in London and after Filed in Court the Scire facias upon it shall go first into Middlesex However the Court offered to have this Matter found Specially but there being no Counsel for Maynard and this Matter stirred only per amicum Curiae it went off Austin's Case IN an Indictment for Erecting of Posts and Rails in an High-way it was held necessary to prove that the party Indicted did set them up for a Continuation of them for not suffering them to be removed would not serve Hale If there be no Special Matter to fix it upon others the Parish where the High-way is ought to Repair it of Common Right Sed Quaere Why not the County as in the Case of Common Bridges 2 Inst 701. Vide postea Butcher versus Cowper IN an Indebitat ' Assumpsit the Defendant pleads in Abatement that the Promise was for carrying the Goods of the Defendant to a certain place and if there were any such Contract it was made with the Plaintiff and a Stranger Vpon which it was Demurred because to plead If there were any such Contract is not good and more like an Affidavit to change a Venue than Pleading and he ought to have averred that the Stranger was alive Besides the Defendant had taken an Imparlance and therefore could not plead in Abatement Wherefore it was Adjudged for the Plaintiff Smith versus Butterfield IN Trespass Quare clausum fregit bona asportavit the Defendant pleaded Not guilty to the breaking of the Close and Iustifies the taking of the Goods at a time varying from that alledged in the Declaration and concludes Quae est eadem transgressio upon which it was Demurred because he did not traverse the Time before and after and it was Adjudged for the Plaintiff Toll versus Dawson IN Debt upon a Bond Conditioned to perform an Award The Defendant pleaded Nullum fecerunt arbitrium The Plaintiff Replies and sets forth the Award which did express the Bond of Submission to be Dated the 7th of February whereas it was dated the 10th of February and for that Misrecital the Defendant Demurred But the Court held clearly that it did not hurt the Award and so if the Submission had been of divers particular matters yet if they had medled only with the things submitted it had been well enough Proctor versus Newton IN Debt upon a Bond the Defendant demanded Oyer of the Condition which was to perform Covenants in an Indenture which recited that the Defendant had sold to the Plaintiff a certain House and there was a Covenant that the Plaintiff pacifice gauderet domum praedict ' absque legali interruptione disturbantia sive impedimento of the Defendant or any claiming from or under him Vpon this Covenant the Plaintiff assigned the Breach thus That J.S. habens jus titulum virtute concessionis from J. N. ante tempus confectionis of the Bargain and Sale to him did enter and expel him Vpon which it was Demurred because not shewn that J.S. had a lawful Title and therefore not well applied to the Condition which is so expresly penned 2 Cro. 315. Hale Habens jus implies it was a lawful Eviction Twisden doubted because it may be J. N. Dissessed the Defendant before the Bargain and Sale and made a Lease to J. S. Et Adjornatur Freeman versus Boddington ERror of a Judgment in an Assumpsit against Baron and Feme Hill 21 22. Rot. 126. in Com. Banco The Error assigned was That the Feme was an Infant and appeared by Attorney whereas the Court ought to have admitted her per Guardianum But if the Wife be of Age then the Baron makes an Attorney for her and himself and the Entry is per Attornatum of the Baron and Feme and not the Baron only And for this Cause the Judgment was Reversed And Hale said that the Baron could not disavow the Guardian made by the Court for his Feme Lewyn versus Forth THe Case was Magdalen Colledge in Oxford being seised of an House and a Mill demised it to Lewyn for 31 years Covenant Lewyn Let the Mill to J.S. for five years and after demised the House and Mill to Forth by Indenture for 31 years Forth Covenanted to Repair the Premisses durante termino praedict ' 31 annorum J. S. refused to attorn and whether Forth were bound to Repair the Mill was the Question because it was alledged that the Covenant was to Repair during the Term and nothing in the Mill passed during the five years for want of Attornment But it was Resolved that he was bound to Repair For Hale said Tho' the Lease did not commence in point of Interest yet it did in point of Computation and this Covenant was to Repair during the 31 years Zouch versus Clay TRin. ult Rot. 787. In Debt upon a Bond the Defendant pleaded Mo. 619. That at the time that he sealed and delivered the Bond there was a Space left wherein afterwards the Name of J.S. was put in who also sealed and delivered it supposing that the adding another Obligor bound joyntly and severally with him 1 Cro. 627. was an Alteration material to avoid the Bond Mo. 547. and relyed upon Pigot's Case in the 11 Co. But the Court held that the Bond remained the same as to him and he could not take advantage of this matter and 't is the common practice of Sheriffs to make their Bonds for Appearance in this manner Sands versus Rudd IN Debt upon a Bond Conditioned to give Security by a certain Day as the Chamberlain of London shall approve The Defendant pleaded that there was no Chamberlain of London at the Day Vpon which it was Demurred and Adjudged for the Defendant Parsons versus Perus HIll ult Rot. 1051. In an Ejectment upon a Special Verdict the Case appeared to be thus Two Women were Joynt-tenants in Fee one of them made a Charter of Feoffment to J. S. and Livery within the View and after before it was Executed married him And it was Objected that this was not a good Feoffment None will deny but that the Death of either party makes a Livery within View if not executed by Entry ineffectual And in Mo. 85. Dyer 5. If
there be not an Entry immediately a Livery within the View is not good and in this case by the Marriage he becomes seised in the Right of his Wife and cannot by his own Act divest himself of that Estate or work a prejudice to his Wife by putting the Estate out of her Which makes it differ from the Case of the 38 E. 3. 11. b. Where a man made Livery of the within View to a Woman and before she Entred married her and claimed the Estate in Right of his Wife there held to be a good Feoffment For in that case there is no Alteration of the Estate consequent upon the Intermarriage Neither is it like the Case of 2. R. 2. quoted in Forse and Hemling's Case in the 4 Co. Where a Woman grants a Reversion to a Man and they Intermarry before Attornment For there the Grant is to be perfected by the Act of a Stranger which in reason should be more available to a man than his own Act. But it was Resolved by all the Court that this Livery was well Executed after the Marriage For an Interest passeth by the Livery in View which cannot be countermanded The effectual part of it viz. Go Enter and take possession was before the Marriage tho' the Estate is not in the Feme while Entry She hath done all on her part to be done and hath put it meerly in the Foffor's power and when he Enters it hath a strong retrospect to the Livery and shall be pleaded as a Feoffment when she was sole If two Women Exchange Lands and one marries before Entry this shall not defeat the Exchange The Cases of 2 R. 2. and 38 Ed. 3. are as strong Emerson versus Emerson TRin. ult Rot. 1389. Error of a Judgment in the Common Pleas in an Action of Trespass by the Plaintiff as Executor upon the Statute of 4 E. 3. De bonis asportatis in vita Testatoris The Plaintiff declared that the Defendant blada crescentia upon the Freehold of the Testator messuit defalcavit cepit asportavit Vpon Not Guilty pleaded a Verdict and Judgment was for the Plaintiff and assigned for Error That no Action lay for Cutting of the Corn for that is a Trespass done to the Freehold of the Testator for which the Statute gives the Executor no Action and while the Corn stands 't is to many purposes parcel of the Freehold So that if a man cuts Corn and carries it away presently tho' with a Felonious intent 't is no Felony Otherwise if he let it lye after 't is Cut and at another time comes and steals it So that it appears for parcel of the Trespass no Action lyes then entire Damages being given as well for the Cutting as Carrying away the Corn the Judgment is Erroneous But all the Court were of another Opinion 9 Co. 78. for 't is but one entire Trespass the Declaration only describes the manner of Taking it away Indeed if it had been quare clausum fregit blada asportavit it had been naught or if he had Cut the Corn and let it lye no Action would have lain for the Executor So if the Grass of the Testator be Cut and carryed away at the same time because the Grass is part of the Freehold but Corn growing is a Chattel The Statute of 4 Ed. 3. hath been always Expounded largely Mr. Amhurst's Case of Grays-Inn SErjeant Maynard moved for a Mandatory Writ to the Mayor and Court of Aldermen of London upon the Statute of 13 Car. 2. c. 11. to give Judgment according to the late Act of 22 nunc Regis The Case was That the Act appoints a Market to be on certain Ground set out in Newgate-Market and in all such cases for the satisfaction of the Owners of the Ground if the City cannot agree with them for it it Impowers the Mayor and Aldermen to Empannel a Jury who shall Assess and Adjudge what satisfaction and recompence shall be given to the Owners and says That the Verdict of such Jury on that behalf to be taken and the Judgment of the said Mayor and Court of Aldermen thereupon and the Payment of the Money so awarded or adjudged c. shall be binding and conclusive to and against the Owners c. Now there was Fifteen thousand Foot of Amhurst's Ground taken away for this purpose and a Jury had been Empannelled and had assessed and awarded him Two shillings a Foot but the Mayor and Court of Aldermen refused to give Sentence or Judgment thereupon This says he is a Ministerial thing and this Court will interpose when any Officers will not do Iustice or will out-go their Authority For there is the same Reason to command to do Justice as to prohibit Injustice A Bishop of Exon had Fallen-out with a Town in Cornwal and denyed them Chrisme and a Mandamus went hence to command him to give it them Mr. Noy brought in a Copy of it Sir William Jones This somewhat resembles a Procedendo ad Judicium this is stronger than the Case of commanding a Bishop to grant Administration there this Court commands them to observe a Statute tho' it be in a Matter this Court has no Cognizance of We can't have an Action on the Case Hale If they don't make you Satisfaction your Interest is not bound Maynard But that is taken away by the same Act Pag. 143. 4. We are Lessee to â—he Dean and Chapter of St. Pauls Hale 'T is not Enacted That they shall give Judgment but that is implyed I never knew a Writ commanding to grant Administration tho' the Opinion has been so Sir William Jones That was done in Sir G. Sandy's Case after great Debate Then a Rule was made to shew Cause why a Writ should not go Afterwards the Court granted a Writ but willed them to consider well of the Form and to whom to direct it Loyd versus Brooking TRin. ult 1046. The Case was Tenant for Life Remainder to his first Son in Tail Remainder to J. S. for Life Remainder to his first Son in Tail c. Tenant for Life after the Birth of his first Son accepts a Fine from J. S. to certain uses and then makes a Feoffment after which the Son of J. S. is Born and whether his Contingent Remainder were destroyed or should vest in him was the Question And it was Resolved by the whole Court upon the first Opening that the Contingent Remainder was not destroyed the acceptance of the Fine displaced nothing the Feoffment divested all the Estates but the Right left in the first Son in Remainder supported the Contingent Remainders My Lord Coke's Case 2 Rolls 796 797 is stronger He Covenanted to stand seised to the use of himself for Life Remainder to his Wife for life Remainder to his Daughter for Life when born Remainder to her first Son in Tail And minding to disturb the arising of the Contingent Estates attempted it by these two Means First He grants the Reversion and in the
an one carries an Evidence of fraud yet is not upon that account only always to be reckoned fraudulent or to be avoided by a Purchaser upon a valuable Consideration Thirdly Whereas it was objected That the Trust of the Term which was but a Chattel could not be Entailed and therefore the Term was liable to the Rent notwithstanding the Assignment of it and limiting the Trust as before It was answered and resolved by the Court that if it had béen a Term in Gross in F. D. the Trust of it could have been no more Entailed than the Term it self but F. D. having the Term in Point of Interest and at the same the Trust of the Inheritance might Entail the Trust of the Term to wait upon the Inheritance and that the Chancery does every day allow which they should take notice of But then it was objected that he ought to have limited the Trust of the Inheritance and of the Term both together but F. D. by a distinct Clause in the Deed limits the Trust of the Term which divides it and makes it independent upon the Inheritance the Trust of which he limits by another Clause To that it was said by the Court that tho' the Limitations were by several Clauses yet all must be taken as one entire Conveyance And Hale said that in 1646 a Lease for years was assigned and the Trust of it Entailed and two days after the Trust of the Inheritance Entailed in the same manner and it was held by the best Counsel then in England that tho' this were done by several Deeds and at several times yet being in pursuance of one Agreement that all was to be taken as one entire Act according to the Case of 17 Jac. where a Fine was levied to Lessee for years with an intent that he should suffer a Recovery which was had the Term following and resolved that his Term was not drowned The Jury hearing the Opinion of the Court found for the Plaintiff for all save a 12th part for so much was drowned and surrendred by the Assignment of F. D. to Sir W. S. one of the six Joynt-tenants of the Reversion Wood versus Coat AN Action for words That the Defendant being indicted of a forcible Entry at the Sessions and the Plaintiff produced as a Witness for the King and Swore nothing but what was true the Defendant after habens colloquium of the said Oath said The Plaintiff took a false Oath against me at the Sessions innuendo the said Oath c. After Verdict for the Plaintiff it was moved That the Action did not lye for the Defendant might mean an Extrajudicial Oath In Pritchards Case 2 Rolls where one said of him He took a false Oath against me at the Assizes It was held that the Action did not lye Sed non allocatur for in that case there was no colloquium laid which is alledged in this case and shews to what the words spoken did relate Bradnox Case A Habeas Corpus was brought to remove the Body of Broadnox who was taken by Process upon a Plaint exhibited in the Court of the Sheriffs in London and it was returned That time out of mind the Mayor Aldermen and Common Council of the City have had the Government and Regulation of Trade within the City and power to make By laws concerning the same and that they had made a By-law that there should be but 420 Carrs allowed to work within the City all which should be Licensed by the President of Christs Church Hospital and that there should be paid for the License of every Carr 1 l Fine and 17 s per annum to the said President to be employed for the use of the Poor within the Hospital and that none should use a Carr without such License under a certain penalty to be recovered c. Provided That all persons may send their own Carrs to the Wharfs c. and carry Goods in their own Carrs from Wharfs except such as shall be Traders or Retailers in Fuel That B. without such License wrought with a Carr pro lucro suo proprio and for the penalty forfeited thereupon a Plaint was levied against him c. It was prayed that there might be no Procedendo in this Case for tho' the By law should be admitted to be good having a Custom to warrant it as was ajudged in this Court 19 Car. nunc between Player and Jenkins yet it appears that the Plaint is insufficient for in that no Custom is alledged and in 1 Rolls 364. such a By-law to limit the number of Carrs was held void for there no Custom is alledged to ground it upon and then a By-law cannot restrain Trade Again 't is unreasonable that such as Trade in Fuel should not be permitted to bring home the Wood which they buy in the Country in their own Carts or to carry it out to their Customers for tho' they might limit the number of Carmen which in too great a multitude would be a Nusans and infest the Streets yet they cannot restrain a Man from using his own Carrs to carry his own Commodities As to the First The Court were of Opinion that it was not necessary to mention the Custom in the Plaint for 't is Lex loci and they take notice of their own Customs in their own Courts As in Norwich the Custom is that in Debt upon a Specialty the Debtor fatetur Scriptum sed petit quod inquiratur de debito and no Custom is set forth in the Record to warrant that But here in the Habeas Corpus they have returned the Custom which shews they had good cause to proceed upon their Plaint for it hath béen often resolved that Custom may create a Monopoly as the case in the Register is a Custom was that none should exercise the Trade of a Dier in Rippon without the Archbishop of Yorks License As to the Second the Court doubted whether this By-law could be adjudged reasonable or good because it would restrain the Woodmongers from bringing their Wood c. home in their own Carrs so that tho' they brought it in the Country Carts as far as the Liberties of the City they must then unload and put it in City Carrs which would be extreamly inconvenient and so it would be if they should send City Carrs to fetch it and tho' it might be reasonable to prohibit them carrying their Commodities out in their own Carrs that they might not have so great an opportunity to cheat in their Measures yet there could be no Colour to restrain them from bringing them in Et Adjornatur Cuts versus Pickering UPon a Trial at Bar one Baker who had been Solicitor for Pickering was produced as a Witness concerning the Razure of a Clause in a Will supposed to be done by Pickering The Court were moved Whether he could be Examined touching this because having been retained his Solicitor he should by reason of that be obliged to keep his Secrets But it
five years pass Whether the Lessor should have five years after the Term expired was the question and after the hearing of Arguments the Court resolved that he should as well as when Lessee for Life levies a Fine which differs not in reason from this Case for there the Lessor may have his Writ de consimili casu presently as here he may bring his Assize And though in 9 Co. Podgers Case 'T is said that where Lessee for years is ousted by a Disseisor who levies a Fine if five years pass without claim the Lessor is barred that is not the same with this Case for the Disseissor comes in without the consent of the Lessee and of his own wrong and if he can defend his Possession five years he shall hold it but here all is done with the privity and by the means of the Lessee who is trusted with the Possession and it would be of most mischievous import to Mens Inheritances if they should not have five years after the Lease ended and it being put of a Disseisin in Podger's Case seems to imply the contrary in other Cases and tho' there were many notorious Circumstances of fraud in Fermours Case which Co. in his report of it lays much weight upon yet it does not thence follow that the Law is not the same where there are not such evidences of fraud In other Books where that case is reported the resolution does not seem to go so much upon the particularities of the Fraud 'T is Fraud apparent in the Lessee Wilston versus Pilkney IN Debt for Rent the Plaintiff declared that the Dean and Chapter of c. demised to the Defendant for Life by force of which he entred and demised the Land to the Plaintiff for years by virtue of which he was possessed and afterward granted to the Defendant reserving a Rent for which he brings his Action To this Declaration the Defendant Demurrs First Because he doth not say of the Deans Demise hic in Curia prolat ' which Demise must be by Deed. Secondly He says that the Defendant entred by force thereof which is impertinent to be alledged upon a Lease for Life because Livery implies it Thirdly As to the matter that the Reservation was void it being upon a surrender by Parol A Rent cannot be reserved upon a Feoffment by Parol so where Lessee for life or years assigns over his whole interest 12 H. 4. 14. 9 H. 6. 43. 12 H. 4. 17. also no Rent can be reserved upon a Conveyance that works an Extinguishment unless by Deed where it is good upon the contract Peto's Case 3 Cro. 101. is that a Surrender drowns the interest to all intents and purposes between the Parties Dier 251. The Tenant for Life agreed with him in Reversion that he should have his Land for the Annual Rent of 20 s 't is doubted there whether this amounts to a Surrender there being no Deed or Livery But in 2 Rolls 497. 't is said if it had been a Surrender the reservation had béen void Hale I do most doubt of the first exception because the Deed was not produced And for the second it were better pleading to have said by force of which he was seized but that 's not of necessity And as to the matter the Court resolved for the Plaintiff For 1. The Reservation was good by the contract tho' without Deed. And so it was adjudged in this Court in Manly's Case that Tenant for years might assign his whole Term by Parol rendring Rent so in the Case of Purcas and Owen 23 Car. But it was doubted whether an Action would lye until the last day were past 'T is all one where the Grant is made to him in Reversion which is not actually but consequentially a Surrender by operation of Law before which the contract is perfected upon which the Rent arises 7 E. 4. is that the Lessee may Surrender upon Condition and there is no reason why a Rent cannot be created upon it as well as a Condition If it were in the case of Tenant for Life a Deed were requisite as well for a Rent as a Condition in respect of the Freehold but that is not so in case of Tenant for years Vide Postea Cartwright and Pinkney Termino Sanctae Trinitatis Anno 25 Car. II. In Banco Regis Hanslap versus Cater IN Error upon a Judgment in the Court of Coventry where the Plaintiff Cater declared That the Defendant being indebted to him infra Jurisdictionem Curiae pro diversis Bonis Mercimoniis ante tunc venditis deliberatis did then and there assume c. Vpon Non Assumpsit pleaded and a Verdict and Judgment for the Plaintiff the Error assigned was That the Goods were not alledged to be sold within the Jurisdiction of the Court. Hale and Wild seemed to be of Opinion that it was well enough the being indebted and the promise being laid to be within the Jurisdiction Twisden Contra and said he had known many Judgments reversed for the same Cause It being moved again this Term Hale consented that it should be reversed according as the latter Presidents have been for he said it was his Rule Stare decisis Parsons and Muden Pasch 22. Car. 2. Rot. out of Barnstaple Court John Brown's Case HE was indicted upon the Statute of 3 H. 7. cap. 2. for the forcible taking away and marrying of one Lucy Ramsy of the Age of fourteen years having to her Portion 5000 l He was tried at the Bar and the fact appeared upon the Evidence to be thus She was inveigled into Hide Park by one Mrs. P. confederate with Brown who had prepared a Coach for that purpose to take the Air in an Evening about the latter end of May last and being in the Park the Coachman drove away from the rest of the company which gave opportunity to Brown who came to the Coach side in a Vizar-mask and addressing himself first to Mrs. P. soon perswaded her out of the Coach and then pulls out a Maid servant there attending Mrs. Ramsy and then gets himself into the Coach and there detains her until the Coachman carried them to his Lodgings in the Strand where the next Morning he prevails upon her having first threatned to carry her beyond Sea if she refused to Marry him but was the same day apprehended in the same House It was a first doubted whether the Evidence of Lucy Ramsy was to be admitted because she was his Wife de facto tho' not de jure But the Court seriatim delivered their Opinions that she was to be admitted a Witness First For that there was one continuing force upon her from the beginning till the Marriage wherefore whatsoever was done while she was under that violence was not to be respected Secondly As such Cases are generally contrived so hainous a Crime would go unpuished unless the Testimony of the Woman should be received Thirdly In Fulwoods Case reported in 1 Cro. which was read in the
Vpon which it was Demurred Jones Sollicitor for the Defendant said Tho' the Bail may plead payment because the Condition of the Recognizance is in the Disjunctive viz. for rendring the Body or paying the Money yet the Principal cannot Also it ought to have been pleaded to be paid before a Capias ad satisfaciendum taken out for as it is it may be after the Recognizance forfeited As if the Death of the Principal be pleaded it must be alledged to be before the Capias ad satisfaciendum taken out But the Court held it to be well enough For if that matter be material 't is to come on the other side and ex gratia Curiae the Bail has time to save himself before the Return of the second Scire facias Anonymus IN an Assumpsit the Plaintiff Declared that on the 28th of June Discoursing with the Defendant about the Marriage of his Daughter the Defendant promised him That if he would hasten the Marriage and should have a Son within Twelve Months then next following he would give him an Hundred Pound And sets forth That he did Marry soon after and had a Son within 12 Months after the Marriage Vpon non Assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff had not set forth That he had a Son within the time for then next following shall be referred to the Day of the Discourse and not to the Marriage But the Court were of another Opinion and gave Judgment for the Plaintiff Crawfoot versus Dale IN an Action for Words it was thus There being a Discourse of the Plaintiffs Trade the Defendant said He was a cheating Knave and kept a false Debt-Book with which he cheated the Country After Verdict for the Plaintiff it was moved in Arrest of Judgment that to say a Tradesman was a Cheating Knave tho' there were a Colloquium of his Trade was not Actionable for that might be said because he sold too Dear and so cheated in the Price but to say that He sold bad Commodities is Actionable and to say He kept a False Book will not bear an Action for that may be unwittingly But the Court Resolved that the Words laid together were Actionable for Tradesmens Books are of much regard and sometimes given in Evidence Jennings versus Hunking IN an Action for saying He was Perjured the Declaration was laid in Devonshire The Defendant Iustified for that the Plaintiff made a false Affidavit at Launceston in Cornwal and Issue was taken upon that and tryed at the Assizes in Devonshire and moved that this was a Mis trial But it was Answered That the Statute of 17 Car. 2. cap. 8. helps all Mis-trials so as the Trial be in the County where the Action is brought And a Case was cited in this Court between Crosse and Winton in the 21 Car. 2. where an Action was brought for saying He stole Plate from Wadham Colledge in Oxford The Defendant Iustified that he did Steal there Vpon which there was Issue joyned and tryed in London where the Action was brought and it was held good And this Term a Case was moved in the Common Bench in a Writ of Covenant against Wise The Defendant pleaded a Feoffment of Lands in Oxfordshire and he Issue was non feoffavit and afterwards tryed in London where the Action was laid and the Opinion of the Court there was that the late Statute would help it The Court said It was within the words of the Act but as they conceived not within the meaning for they intended only so the Trial was in the County where the Issue did arise But in regard of the Resolutions before they would not stay Judgment Anonymus IN an Action upon the Case the Plaintiff sets forth that the Defendant malitiose crimen Feloniae ei imposuit and not mentioned any Felony in particular and yet held to be well enough Anonymus Trespass with a Continuando which was alledged for some time after the Term wherein the Action was brought and Damages given to 10 l It was moved in Arrest of Judgment that for part of thâ— Trespass it appears by the Plaintiffs own shewing that the Action was brought before the Plaintiff had Cause of Action And it was said That if the Bill were Filed at the End of the Term and the Trespass reached to some time within the Term the Filing should not relate so as to make it Insufficient But here it was carried to the 3d of July which the Court must see is out of the Term because they take Cognizance of the beginning and end of every Term. Anonymus IF an Audita Querela he brought before the Execution of a Judgment quia timet and it goes for the Defendant he shall execute his Principal Judgment But if it he brought after the party is in Execution and he be bailed out then the Judgment being once Executed there can be no after resort to that but the Defendant shall proceed upon the Record of the Audita Querela Fawkener versus Annis THe Priviledge of the Chancery was pleaded by way of Prescription and upon Demurrer it was held naught First Because it was not Concluded hoc paratus est verificare And Secondly No place alledged for they are Matters of Fact and Triable Anonymus IN an Action upon the Case the Plaintiff Declared That the Defendant the Tenants and Occupiers of such a parcel of Land adjoyning to the Plaintiffs have time out of Mind maintained such a Fence and that from the 23th of April to the 25th of May postea the Fence lay open and that una Equa of the Plaintiffs went through the Gap and fell into a Ditch the 28th of May submersa fuit Vpon Not Guilty pleaded and found for the Plaintiff Holt moved in Arrest of Judgment First That the Prescription is laid in Occupiers and not shewn their Estate and that hath been adjudged naught in the 1 Cro. 445. and the 2 Cro. 665. Curia 'T is true there have been Opinions both ways but 't is good thus laid for the Plaintiff is a Stranger and presumed ignorant of the Estate But otherwise it is if the Defendant had prescribed Secondly It was Objected That the Cause of Action is laid after the 25th of May and for ought appears the Fence might be good at that time tho' 't is said to be open till the 25th of May postea Sed non allocatur For 1. 'T is after a Verdict 2. 'T is said expresly that the Beast was lost in defectu fensuratum and so cannot be intended but that it was down at the time Anonymus AN Indictment of Forcible Entry upon the 8 H. 6 being removed hither by Certiorari a Restitution was prayed But to stop that it was said that the Indictment was traversed and a Plea that the party had had three years quiet possession according to the 31st of Eliz. and tho' Dyer 122 is That 't is in the
Discretion tion of the Court to grant Restitution even after a Traverse put in yet now since the Statute of Eliz. where such Plea is tendred the Court cannot grant a Restitution tho' they would in this Case if by Law they might for the party that made this Entry had lost the Land just before by Verdict in an Ejectment and by this means the effect of it should be disappointed Note The Indictment wanted Vi armis for it was pacifice intravit sine Judicio disseisivit à possessione expulit amovit But on the other side it was said First That the Entry being pacifice it was not the course to lay it Vi armis Secondly That 37 H. 8. cap. 8. supplied the defect of Vi armis in an Indictment But as to the latter the Court were of Opinion that the Statute supplied only the lack of the words gladiis baculis cultellis as are mentioned in the Statute Vid. the Stat. Anonymus A Suit for a Pension may be in Ecclesiastical Court tho' by Prescription but if it be denied to be time out of mind then a Prohibition is to go so that the Prescription may be tried at Law as in a Modus decimandi mutatis mutandis It was said by the Court that two might joyn in a Prohibition tho' the Gravamen was several but they must sever in their Declarations upon the Attachment Termino Sancti Hillarij Anno 26 27 Car. II. In Banco Regis Anonymus IN Error the Writ was Teste the 30th of November last and Retornable in Parliament the 13th of April next the Day to which the Parliament was Prorogued The Defendants Counsel desired the Rule of the Court for the taking out of Execution supposing this Writ of Error was no Supersedeas and alledged that the late Rule made in the House of Lords did not extend to their Case for that was That all Causes there depending should not be discontinued by the intervening of a Prorogation but this Case will not be there depending before the Return of the Writ In 3 H. 7. 19. the Court of Kings-Bench would not allow a Writ of Error into the Parliament until some Error was shewn to them in the Record lest it should be brought on purpose to delay Execution In Bulstrode's Reports a Writ of Error Returnable the second Return of the Term was held to be no Supersedeas because it seemed an affected delay that it was not made Returnable the first Return Hale It has been taken that a Prorogation determined a Cause depending in Parliament by a Writ of Error but the Lords have lately Declared otherwise But that comes not to this Case the Writ not being Returned A Writ of Error Returnable ad proximum Parliamentum is not good but otherwise if they are summoned or prorogued to a Day certain If the Day of the Session had been a Year hence it would be hard a Writ of Error should stay Execution and the same Reason where the whole Term intervenes A Writ of Error did bear Teste 10 Nov. and was Returnable 1 Nov. proximè futur ' and the Record was sent into the Exchequer Chambet and a Mittimus Endorsed upon the Roll here And it was Resolved that Execution might be taken out because of the long Return Secondly That tho' there were Mittimus upon the Roll yet the Record remained here until the Return of the Writ to all purposes And the Opinion of the Court was that the Writ of Error was no Supersedeas But they would make no Rule in it because they said it was not Iudicially before them but the party might take out Execution if he thought fit And then if the other Side moved for a Supersedeas they should then Resolve the Point Note Hale said in an Assumpsit for Money upon the Sale of Goods upon non Assumpsit the Defendant might give in Evidence an Eviction of the Goods to mitigate the Damage and in all Assumpsits tho' upon certain Contracts the Jury may give less Damages than the Debt amounts unto as he said was done in a Case where a man promised to give a Straw for every Nail in every Horses Shoe doubling every time and they gave in Damage but the Value of the Horse tho' as the Bargain was made it would have come to above 100 l Lomax versus Armorer A Writ of Error was brought to Reverse a Judgment in Dower given in the Court of Newcastle The Error assigned was because the Proceeding was by Plaint and no Special Custom certified to maintain it As in London and Oxford they have Assizes of Fresh Force by Plaint The Court held it to be Erroneous for this Cause but would not determine whether it might not be good upon a Special Custom 1 Rolls 793. Pl. 11. Anonymus A Mandamus was granted to the Archdeacon of Norwich to Swear a Churchwarden upon surmize of a Custom That the Parishioners are to choose the Churchwardens and that the Archdeacon refused him notwithstanding that he was Elected according to the Custom The Archdeacon Return'd that non sibi constat that there is any such Custom which Form is not allowable for it ought to be positive whereupon an Action might be grounded and that by the Canon the Parson is to choose one c. The Court said that Custom would prevail against the Canon and a Churchwarden is a Lay Officer and his Power enlarged by sundry Acts of Parliament and that it has been Resolved that he may Execute his Office before he is Sworn tho' it is convenient he should be Sworn and if the Plaintiff here were Sworn by a Mandate from this Court they advised him to take heed of disturbing him Noy Rep. 139. Anonymus AN Assumpsit was brought against an Executor for that the Testator being Indebted to the Plaintiff he did ad requisitionem of the Defendant come to Account with him upon which there appeared to be so much due to the Plaintiff which he promised to pay After Verdict the Judgment was de bonis propriis and it was moved that it ought to have been de bonis testatoris For the Accounting with him is little more than telling him what is due and this might make an Executor afraid of Reckoning with any of his Testators Creditors The Court said that the Accounting upon the Defendants Request which was more than the Plaintiff was bound to have done was a Consideration and after a Verdict they must intend an express Promise But Hale said If upon the Evidence it had appeared that there was no Intention to alter the Nature of the Debt as in case an Executor should say stay a while until the Testators Estate was come in and I will pay you he should direct the Jury to find against the Plaintiff that would in such case charge an Executor in his own Right Termino Paschae Anno 27 Car. II. In Banco Regis NOte In an Indebitat ' Assumpsit a man Promises in Consideration that
Anonymus IN Trespass for Fishing in his several Piscary and for taking 20 Bushells of Oysters there such a day continuando piscationem praedictam from the said day to the time of the Action brought Vpon Not guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Fishing in the continuando was altogether incertain not expressing the quantity or quality of the Fishes as it ought according to Playters Case 5 Co. And of this Opinion were Wild and Jones But the Chief Justice inclined to think it well enough and said Playters Case had not been very well approved of of late years and that is that 't is necessary to express the kind of the Fishes which has béen held since needless and he knew not why it might not be as well as an indebitatus Assumpsit pro diversis mercinoniis But the other Judges said tho' it was reason it should be as the Chief Justice said yet they knew not how to depart from the Authorities in the Point and that Playters Case had remained mishaken Sed Adjornatur Anonymus IN Debt for Rent against an Assignee of a Lessee The Defendant pleaded That before the Action brought he assigned over to J. S. and thereof gave notice to the Plaintiff The Plaintiff replied That he still kept the Possession and had made the Assignment by fraud to disappoint him c. To which it was demurred for it was said that fraud was not averrable in this case neither by the Common Law nor any Statute But the Court inclined that it might for if such a practice should obtain the Lessor might be hindred perpetually of his Action of Debt by making Assignments to persons unknown An Executor confesses a Judgment which is lawful for him to do yet this may be avereed to be entred or kept on foot by fraud and that by the Comman Law which hates all frauds Sed Adjornatur Postea Anonymus A Prohibition was prayed to the Councel of the Marches for that they proceeded upon an English Bill there against the Defendant supposing that he had promised upon a Consideration to pay the Debt of a Stranger because 't is in the nature of an Action upon the Case and consists meerly in Damages And altho' many Presidents were shewn of their Proceeding in such of Actions and the Statute of 34 H. 8. cap. 26. that they should determin such Cases as were heretofore accustomed and used c. as should be assigned to them by the Kings Majesty and it was pretended that this was within their Instructions yet the Court granted the Prohibition For where Damages are uncertain they cannot be set in a Court of Equity but by a Jury In Debt because the demand is certain the Courts here have sometimes assessed Damages without a Writ of Enquiry but never in Trespass or Actions upon the Case which lie wholly in Damages Anonymus AN Habeas Corpus The Return was read and spoken to and the Prisoner ordered to be remanded Twisden said the Return should have been first Filed and the Prisoner committed to the Marshalsey for otherwise the Court have no power over him Vid. Mo. 839. and he cited 1 H. 7. Humphry Staffords Case who being brought to the Bar upon an Habeas Corpus by the Lieutenant of the Tower was committed to the Marshalsey and afterwards remanded to the Tower but the other Judges differed as to the Commitment and said it was not necessary to keep the Prisoner in the Marshalsey until the Matter was determined but he might be sent from time to time to the same Prison and brought up by Rule of Court until he is either Bailed Discharged or Remanded And so they said it was lately done in the Earl of Shaftsbury's Case Gilmore versus .... UPon a Special Verdict the Point was whether a Promise made upon such Consideration as by the Act of 29 Car. 2. to prevent Frauds and Perjury's is requisite to be in Writing signed by the Party to be charged therewith being made before the 24 of June last but the Action brought after be within the restraint of the Act which saith That from and after the 24 of June no Action shall be brought upon such Promise c. And it was resolved that the Case was not within the Act which did not extend to any Promise made before the 24 of June The King versus Sir Thomas Fanshaw SIr Thomas Fanshaw and others were indicted for not Repairing of a Bridge which it was alledged they were bound to Repair Ratione Tenurae of such Lands Sir Thomas Fanshaw pleaded That he was not bound to Repair Ratione Tenurae and found that he was In Arrest of Judgment it was said that the Verdict was not pursuant to the Indictment for therein 't is alledged that Sir Thomas Fanshaw and others were bound to Repair Ratione Tenurae and the Verdict is that Sir Thomas Fanshaw Ratione Tenurae c. Reparare debet Parietem praedict ' modo forma prout per Indictamentum praedict ' supponitur Sed non allocatur for each of them may be bound to Repair for their respective Lands and they must get Contribution by the Writ de onerand ' pro rata portione Secondly It was said that 't is Ratione Tenurae and not said Suae and this was said to be naught Noy's Rep. 93. Sed non allocatur for the Presidents are generally so Parkers Case A Mandamus to restore an Attorney to his liberty of practising in a Court within the County Palatine of Chester was Returned That the Court was holden before the Chamberlain Vice-Chamberlain Baron or the Deputy of the Baron and that at a Court before the Barons Deputy he spoke contemptuous words of him whereupon he suspended him from his Practice quod non aliter amotus fuit Vpon exceptions offered to the Return The Court held it a good cause of Suspension and ordered a Submission to him that received the affront in open Court before that he should be restored Anonymus THe Case upon the Averment of Fraud upon an Assignment by the Assignee of a Lessee was now moved again and by Twisden Wild and Jones against the Opinion of Scroggs Chief Justice Iudgment was given for the Plaintiff viz. That Fraud in such Case might be averred Ante. Anonymus IN Ejectment it was debated whether Confession of Lease Entry and Ouster would serve where there ought to have been an actual Entry upon the Title as the in case of a Condition broken or the like And the Opinion of the Court inclined that it would not tho' my Lord Hale was said to be of another Opinion Ante. Termino Sancti Michaelis Anno 30 Car. II. In Banco Regis Dutton versus Poole CUjus principium ante Michael ' 29 Car. 2. It was now moved again to stay the Iudgment by Sanders who argued that the Action could not be maintained by the Plaintiff for the Father whose the Wood was could only bring it for
it will be agreed he might have released it or by cutting of the Wood might have taken away all the right of Action Again it does not appear by the Record that the Defendant was here and so no benefit by the forbearing to cut the Wood. Rookwoods Case cited on the other side 1 Cro. 163. 1 Leonard 192. is that the Promise was made to the younger Brothers and the Consideration that they would consent but here the Plaintiff who was to have the Money had no share in the Consideration or Meritorious Act as where the Father promises J. S. if his Son will Marry his Daughter he will give him 1000 l the Son may bring the Action because the Consideration moves from him Hetlys Rep. 20. the Case was to this effect A Man promises a Woman whom he was to Marry upon a certain Consideration that if he had a Son by her he should have a Term whereof the Woman was then possessed and if it were a Daughter she should have the Moiety of the Goods c. they Intermarry and after the death of the Husband the Daughter born between them brings an Action against the Executor of the Husband and resolved that it would not lie tho' they did not think the Agreement made with the Wife to be discharged by the Intermarriage but only suspended which is a Quaere in my Lord Hobart Yet the Daughter being no Party to the Promise or to the Consideration could not bring an Action The Case of Norris and Pine before cited is stronger for there he that made the Promise had a benefit for it was in Consideration of Marriage On the other side it was said that tho' it doth not appear that the Defendant was Heir yet it may be intended after Verdict however 't is not nudum pactum for if the Defendant had no benefit yet there was a restraint upon the other and that is Consideration enough And for the objection of releasing that holds where J. S. promises J.N. if his Son will Marry his Daughter he will pay him 1000 l J.N. may Release but 't is doubtful whether he can after Marriage because then 't is vested in the Son as Scroggs Chief Justice said 1 Roll. 31. The Uncle of an Infant delivered J.S. 12 l who promised to pay the Infant when he came of Age and the Action was well brought by him after his Age. So Goods sold to A. to pay 10 l to B. B. may Sue Vid. 1. Roll. 32 Starkey and Mills The Court said it might be another Case if the Money had béen to have been paid to a Stranger but there is such a nearness of Relation between the Father and Child and 't is a kind of Debt to the Child to be provided for that the Plaintiff is plainly concerned And so by the Opinion of them all viz. Scroggs Wild Jones and Dolben Judicium pro Querente Ante. Anonymus A Prohibition was prayed to the Sheriffs Court of London for that an Action was there Commenced to which the Defendant pleaded That the cause of Action did not arise within the Jurisdiction and offered to swear his Plea but it was refused The Counsel for the Plaintiff objected against the Prohibition that the Plea came too late for it was after an Imparlance But it being proved by Affidavit that the Plea was tendred within two days after the Declaration was delivered and that immediately upon delivering the Declaration there is an Imparlance of course The Court granted the Prohibition and said that the other side might Demurr if they thought fit for the liberty of the Subject was infringed by bringing him within a private Jurisdiction when the Matter arises out of it and Attorney's in such places are sworn to advise no Plea to the Jurisdiction nor that none shall be put in by them And whereas 't was said that the Party had not prejudice for he might remove his Case by Habeas Corpus The that the Court answered coming by Habeas Corpus Bail must be put in above tho' the Cause otherwise did not require it Note It appeared here that there was no defence made in this to the Jurisdiction and Co. Inst was quoted that defence should be made tho' not full defence But the Court said it was not necessary and that Presidents were otherwise especially where the Court have no Jurisdiction of the matter otherwise where not of the person James versus Richardson IN Ejectment the Case upon a Special Verdict was thus A. devised the Lands to B. and his Heirs during the Life of J. S. and after to the Heirs of the Body of R. D. now living and to such other Heirs was should after be Born the Devisee for Life levied a Fine in the Life of him to whose Heirs the Remainder was limited but he had a Son at the time of the death of the Testator The question was Whether it was a Contingent Remainder the consequence whereof was to be destroyed by the Fine and that it was vested in the Son Scroggs Chief Justice Wild and Jones held it a Remainder vested by reason of the words now living which was a sufficient Designation of the person that was to take in a Will tho' improper to call him Heir But Dolben Contra for by this Construction the Heirs Born after are excluded and the Son would take but an Estate for Life tho' it were devised to the Heirs in the Plural Number Note Vpon a Writ of Error in the Exchequer Chamber this Iudgment was reversed Hillary 31 32. Car. 2. Termino Paschae Anno 31 Car. II. In Banco Regis A Mandamus was prayed to the Ecclesiastical Court to grant the Probat of a Will under Seal c. The Case was the Executor named in the Will had taken the usual Oath but after a Caveat entred and then Refused and another endeavoured to obtain Letters of Administration the Executor came after to desire the Will under Probat and contested the granting of Administration Which was Adjudged against him supposing that he was bound by his Refusal And after an Appeal to the Delegates this Mandamus was prayed and granted by the Court for having taken the Oath he could not be admitted to Refuse and the Ecclesiastical Court had no further Authority and the Caveat did not alter the Case Note The Oath was taken before a Surrogate yet it was all one Anonymus A Prohibition was prayed to a Suit for Tythes upon the Suggestion that the Lands out of which they were demanded say out of the Parish and the Bounds of Parishes are tryable at the Common Law But the Court denied the Prohibition because it did not appear that a Plea thereof had been offered in the Ecclesiastical Court Anonymus A Prohibition was prayed to stay a Suit against J. S. Lessee of a Rectory out of which a Pension was demanded It was suggested that the Lord Biron had three parts in four of this Rectory upon which the Pension was chargeable and that
meant by the name of Son As to Beckford's Case the Words are full to carry all and therefore it had been impertinent to have wrote over the Will again So where a man has two Sons named John it may be well averred that he meant the younger Son for nothing in the Will is inconsistent with such meaning The Court took time to deliver their Opinions And afterwards the Chief Justice delivered the Opinion of the Court That neither the Republication nor Parol Declaration could operate as a Devise to R. c. the Grandson Pepis's Case A Mandamus to restore him to his Place of Recorder of the Town of Cambridge The Return was That they were Incorporated by the Name of Mayor Aldermen c. with a Power to chuse a Recorder Habend ' pro termino vitae aut ad voluntat ' eligentium That Mr. Pepis was Chosen Recorder ad voluntat ' eligentium and that afterwards by the Votes of the greater number of the Electors he was removed and the Lord Allington constituted a Recorder under their Common Seal c. Vpon this Return it was moved for Mr. Pepis that altho' they had alledged a Power to Chuse a Recorder at Will yet they should have shewn Cause for his Removal being a Judicial Office which the Court takes notice of and that none had such a Power but the King to remove Judges ad libitum Again A Corporation aggregate cannot determine their Will but under their Common Seal and that is not shewn here Curia Where a Recorder is at Will they may remove him at pleasure as it is in Blagrave's Case and several other Cases As to the other Point it does not appear that he was Constituted under their Common Seal perhaps then they must have determined their Will under their Common Seal but now 't is well enough my Lord Allington is Constituted under their Common Seal which Act removes the other so it was adjudged against Mr. Pepis Termino Sancti Michaelis Anno 31 Car. II. In Banco Regis A Prohibition was prayed to the Court of Admiralty upon a Suggestion that the Suit was there upon a Contract made upon the Land The Case was thus A Bargain was made upon the Land with severl Seamen to bring up a Ship from a Port in England to London for a certain Sum to them to be paid And for the Prohibiton 't was alledged that this being upon the Land and a Contract with divers joyntly for a Sum in Gross it could not be within the ordinary Rule of Mariners Wages which is permitted to be Sued for in the Court of Admiralty in favour of the Mariners because they may all joyn in that Court and not be put to the inconvenience of Suing severally as they must at Law but as this Contract is they are to sue joyntly at Common Law But the Prohibition was denied for this must be taken as Mariners Wages And therefore tho' the Contract were upon the Land yet they have Jurisdiction Besides the Party comes after Sentence and therefore in the Courts discretion whether they will then grant a Prohibition Note A Rump Act was made to enable Mariners to Sue for Wages in the Admiralty but yet the Law was taken to be so before Vid. 3 Cro. Anonymus A Prohibition was prayed to the Ecclesiastical Court where the Libel was for these words You are a Whore and Ply in Moorfields And the Suggestion was that the words were spoken in London where an Action lies for such words and for that Cause a Prohibition was granted otherwise Suits might have been in the Court Christian for such words tho' not singly for the word Whore being a common word of brabling otherwise where joyned with words which shew the intent to Defame in that kind Anonymus AN Indebitat ' Assumpsit was brought for Goods sold and delivered The Action was laid in London and a Motion was made to change the Venue upon an Affidavit that the Sale was in Kent But on the other side it was said the delivery was in London and that were the Matter consists of two parts in several Counties the Plaintiff shall have his Election to which the Court agreed Anonymus A Man Covenants with his intended Wife to give her leave to dispose of so much by her Will and then they Intermarry the Husband having given Bond to a third person for the performance of these Covenants after the death of the Wife the Husband is Sued upon the Bond for not permitting her Will to be performed And upon Oyer of the Condition it was insisted on for the Defendant that these Covenants were discharged by the Marriage and so the Bond likewise loseth its force Vid. Hob. 216. Et Adjornatur Anonymus A Motion was made to quash an Inquisition of forcible Entry it was Inquisitio capta per Juratores super Sacramentum suum coram T. S. J. N. Justiciariis c. qui dicunt super Sacramentum praed ' And it was objected That qui dicunt c. referring to the last antecedent it was that the Justices say Sed non allocatur for super Sacramentum praedict ' makes it certain Note The Caption of an Indictment may be amended the same Term it comes into Court Anonymus AN Indictment for not taking upon him and executing the Office of a Constable to which he was chosen by the Leer The question was Whether a Tenant in antient Demesne were obliged to that Office And the Court held that he was Termino Sancti Hillarij Anno 31 32 Car. II. In Banco Regis Anonymus IN Ejectment upon a Special Verdict the case was thus A Lease was made A. and B. for their Lives Remainder to the first Son of A. c. Remainder to the Heirs of A. B. conveys his part to A. The question was Whether the Contingent Remainder to the first Son were destroyed Holt argued that it was For a Contingent Remainder must have some particular Estate of Freehold to support it and by the Release of B. his Estate was gone and there became an intire Fee in A. For by whotsoever means a Joynt tenant for Life conveys his Moiety to his Companion it does not enure by Grant of the Estate but by Release as Eustace and Scawens Case 2 Cro. 696. A. and B. Joynt tenants for Life A. Levy's a Fine to B. B. dies there shall be no Occupancy of the Moiety of A. during the Life of A. Jones 55. and the Case of Lewis Bowels 11 Co. is not to be objected where an Estate for Life was made to B. and F. the Remainder to their first Son that they should have in Tail Remainder to B. and F. in Tail here tho' an Estate in Tail is executed in B. and F. until a Son Born yet after upon the Birth of the Son the Contingent Remainder shall vest and split and divide the former Estate 2 Co. 60.61 but here the Fee becomes executed by several Conveyances but there the Estate
Tail was executed by the first Conveyance And in the Case at Bar until the Release of B. the Fee was not executed in B. for the preservation of the Joynture and so the Plight and Condition of the Estate altered by matter subsequent and by consequence the Contingent Remainder destroyed The Court doubted whether there were such alteration of the Estate as to destroy the Remainder for they said to some purposes the Fee was executed before the Release Vid. 1 Inst 184. a. for if the Joynt-tenants had joyned in a Lease for years an Action of Wast would he against the Lessee Et Adjornatur Anonymus A Person who was committed to the Tower for Conspiring the death of the King was brought up by Habeas Corpus and prayed to have Bail taken unless an Indictment were found against her this Term according to the new Act of 31 Car. 2. for Habeas Corpus's The Court said that they which would have the benefit of that Act must pray it before the first week of the Term expires but in regard it appeared that she had prayed it before by her Counsel and her Habeas Corpus was taken out in time the Court said the benefit of the Act should be saved to her for the prayer is not necessary to be made in person But Mr. C. G. was refused the advantage he having omitted to make the prayer during the first week either in Person or by Counsel Sir Robert Peytons's Case HE was brought up by Habeas Corpus from the Tower his Counsel pressed much to have the Return Filed supposing that he would be then a Prisoner to the Court and committed to the Marshalsey but the Court ordered the Return to be Filed and notwithstanding remanded him to the Tower as they said they might do The King versus Plume ANte Hill 29 30 Car. 2. The Case was spoken to again upon the Demurrer to the Indictment for using of the Trade of a Fruiterer contra 5 Eliz. not having been bound an Apprentice Scroggs Chief Justice and Dolben inclined to the Opinion that it was a Mystery within the Statute there being great Art in chusing the times to gather and preserve their Fruit. And that the Cause deserved the more Consideration for that the Fruiterers were an ancient Corporation in London viz. From the time of E. 4. also a Barber Upholster and lately a Coachmaker Ruled to be within the Act. Jones and Pemberton seemed to be of another Opinion for it would be very inconvenient to make every one that sells Fruit by the penny within the Act and majus minus would make no odds surely since the 5 of Eliz. there would have been some Prosecution by the Company of Fruiterers in this case if it would have lain Brewers and Bakers require Skill and yet not within the Act. But the Court took time to deliver their positive Opinions Et Adjornatur Reve versus Cropley AN Indebitat ' Assumpsit was brought for 20 l as Executor to William Burroughs for so much of the said Williams Money had and received by the Defendant in his Life time whereupon the Plaintiff had Iudgment by Nihil Dicit and upon a Writ of Inquiry the Plaintiff not being provided to prove the Debt supposing it to be confessed by the Judgment the Jury found but two pence Damages Ventris moved to set aside this Writ of Enquiry for that the Plaintiff was not obliged in this Action to prove the Debt at the executing of the Writ of Enquiry no more than if he had brought an Action of Debt 2 Cro. 220. In Trespass for taking of Goods the Property is not to be proved upon the Writ of Enquiry after Iudgment Sur Nihil Dicit for said the Court if he should fail thereof it would be in destruction of the first Judgment Vid. Yelv. 152 Curia This being in an Action upon the Case which lies in Damages the Debt ought to have been proved and so let it stand Note If a Verdict be for 30 l and the Iudgment is quod recuperet damna praedicta ad 32 l This surplus will do no hurt because 't is damna praedicta Jones 171. Cooke versus Fountain IN an Ejectment upon a Trial at the Bar the Title of the Lessor of the Plaintiff was upon the Grant of a Rent with power to enter for Non payment The Executor of the Grantor was produced as a Witness for the Defendant And it was objected against him that in the Grant of the Rent the Grantor covenanted for himself and his Heirs to pay it and that the Executor being obliged was no competent Witness Against which it was much insisted upon on the other side that this Covenant annexed to a real Estate would not bind the Executor but only the Heir But the whole Court were against it The Counsel for the Defendant mentioned a Bill of Exceptions and the Court doubted whether it would lie in the Kings Bench so they waved it and shewed that the Executor had fully Administred the Inventory But they gave a further charge on the Plaintiffs side and so that Witness was set aside Termino Sanctae Trinitatis Anno 32 Car. II. In Banco Regis Anonymus IN an Action upon the Case The Plaintiff declared that he kept a Stage-Coach and got his Livelyhood by carrying of Passengers And that the Defendant spoke such Scandalous words of his Wife that so reflected upon him and rendred him so ridiculous that no body would Ride in his Coach and he thereby lost his Customers After Verdict for the Plaintiff it was moved to stay Iudgment that here was no cause of Action But on the other side a Case was cited of one Bodingly 14 Car. 2. C. B. where the Plaintiff declared That he was an Innkeeper and that the Defendant had presented his Wife at a Leet for a Scold and that such and such Guests in particular had absented from his House upon it and after Verdict he had Judgment But the Court here said that the Cases differed for that quality of the Wives might make the House troublesome to the Guests but a Stage Coachman could receive no probable prejudice in his Trade by defaming of his Wife or at the least the Plaintiff should have declared what Customers he had lost in particular and therefore they ordered quod querens Nils capiat per Biliam Anger versus Brewer IN an Attachment upon a Prohibition the Plaintiff declared That he proceeded in the Court Christian after the Prohibition delivered After Judgment by Nihil dicit and 100 l Damages given to the Plaintiff it was moved to stay Judgment that there was no place laid in the Declaration where the Defendant prosecuted since the Prohibition delivered and so if Issue had been taken upon Non prosecut ' fuit post deliberat ' brevis whence should the Venue have come But it being made appear to the Court that in all the Presidents of these kind of Declarations there is no place found mentioned
Heir in England or to have one My third and last Reason is indeed more general tho' not so conclusive as the two former were upon the particular Reason of the Case tho' not altogether to be neglected viz. The Law of England which is the only ground and must be the only measure of the incapacity of an Alien and of those consequential results that arise from it hath been always very gentle in the construction of the disability and rather contracting than extending it so severely For Instance The Statute de natis ultra Mare 25 E. 3. declares that the Issue born beyond Sea of an English Man upon an English Woman shall be a Denizen yet the construction hath been tho' an English Merchant marries a Foreigner and hath Issue by her beyond the Sea that Issue is a natural born Subject In 16 Cro. Car. in the Dutchy Bacons Case per omnes Justic ' Angl ' And accordingly it hath been more than once Resolved in my Remembrance Pround's Case of Rent The Case of the Postnati commonly called Calvin's Case the Report is grounded upon this gentle Interpretation of the Law tho' there were very witty Reasons urged to the contrary and surely if ever there were reason for a gentle Construction even in the Case in question it concerns us to be guided by such an Interpretation since the Vnion of the two Kingdoms by which many perthance very Considerable and Noble Families of a Scottish Extract may be concerned in the consequence of this Question both in England and Ireland that enjoy their Inheritances in peace I spare to mention particulars So far therefore as the parallel Cases of Attainder warrant this extent of this Ability I shall not dispute but further than that I dare not extend Now as touching the Authorities that favour my Opinion I shall not mention them because they have been fully Repeated and the later Authorities in this very Case are not in my Iudgment to be neglected Touching the Case of Godfrey and Dixon it is true it doth differ from the Case in question and in that the Father was made a Denizen and then had Issue a younger Son who inherited the elder Son an Alien born but Naturalized after the death of his Father yet there is to be observed in that Case either the Naturalization of the elder Son relates to his Birth or relates only to the Time of his Naturalization whether it did relate or not depends upon the words of the Act of Naturalization which I have not seen If it did relate the Cause in effect will be no more but an Alien hath Issue a Natural born Son for so he is as I have Argued by his Naturalization and then is made a Denizen and hath Issue and dies the elder Son purchaseth Lands and dies without Issue the younger Son shall inherit the elder should not have inherited his Father by reason of the Incapacity of the Father But it doth not relate further than the Time of his Naturalization which was after the time of the Death of his Father and consequently he could not divest the Heirship of his younger Brother yet if he purchaseth and dies without Issue his younger Brother shall inherit him tho' there was never Inheritable Blood between the elder Son and his Father so much as in fiction or relation Vpon the whole Case I conclude First That there be two Brochers Natural born in England the Sons of an Alien the one shall inherit the other Secondly That the Naturalization puts them in the same Condition as if born here tho' it does not more Thirdly That John the Son of George stands in the same Condition of inheriting his Vncle the Earl as George should have done had he survived the Earl Fourthly But if the Disability of Robert the Father had disabled the Brothers to have inherited one the other the Naturalization of the Earl or George had not removed that Disability Fifthly But no such Disability of the Father doth disable the Brother George to inherit the Earl it neither doth Consequentially disable John the Son of George to inherit the Earl Consequently as to the Point referred to our Iudgment John the Son of George is Inheritable to the Land of John his Vncle. The End of the First Volume A TABLE OF THE Principal Points Argued and Resolved in the First PART OF THESE REPORTS A. Abatement See Pleadings IN the Ecclesiastical Court a Suit does not abate by the Death of either Party Pag. 134 A Baronet is Sued by the Addition of Knight and Baronet the Action shall abate 154 In all Actions where one Plaintiff of several Dyes the Writ shall abate save in an Action brought by an Executor 235 Acceptance Where Acceptance of Rent from the Assignee shall discharge the Lessee 99 Action See Bail Whether an Action of Debt qui tam upon the Stat. 5 El. c. 4. lies in B. R. 8 Action brought de uxore abducta and concludes contra forman Statuti where there is no Statute in the case yet good 104 Action for a Nusance in stopping of the Lights of his House p. 139 237 248 Action upon the Stat. 13 Car. 2. by one Bookseller against another for Printing his Coppy p. 253 Where the Matter consists of two parts in several Counties the Plaintiff may bring his Action in which he pleases p. 344 Where several Causes may be joyned in one Action and where not 365 366 Action upon the Case See Jurisdiction Way In the Nature of Conspiracy a-against three for Arresting without Cause and only one found Guilty 12 Such an Action lies against one p. 19 Lies for a Justice of Peace against one who Indicts him for Matters in the Execution of his Office p. 23 25 For taking his Wife from him brought against the Womans Father p. 37 Lies not against a Justice of Peace for causing one to be Indicted who was after accquitted 47 Where it lies for Suing one in the Ecclesiastical Court and where not 86 For erecting a Market 7 miles off 98 Upon the Custom of Merchants for a Bill of Exchange accepted 152 For not Grinding at his Mill 167 Where it lies against a Master of a Ship for Goods lost out of the same 138 190 191 Against the Mayor of L. for not Granting a Poll upon a doubtful Election 206 For not repairing a Fence 264 Against a Taylor for Spoiling his Coat in making 268 For Riding over the Plaintiff with an unruly Horse 295 Where Action lies for Defaming the Wife whereby the Husband loses his Customers 348 Action upon the Case For Slander You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds These last Words not Actionable 3 She was with Child by J. S. whereof she miscarried 4 Thou hast received stoln Goods and knew they were stolen J. S. Stole them and thou wert Partner with her 18 Of a Midwife She is an Ignorant Woman and of small Practice and very unfortunate in her Way there
So of Perjury and Nusance 370 Indictment before Justices of Peace for a Non feasance ought not to conclude contra pacem 108 111 For suffering an Escape 169 Quasht for Incertainty 305 306 No Copy of the Indictment allowed in capital Crimes yet the Mirror calls it abusion 354 For Perjury extrajudicial 370 Infant See Executor A Condition and Deed obliges Infants as much as others 200 205 Intent and Intendment See Uses Verdict Ioyntenant Two Joyntenants one Grants bargains and sells all his Estate and Interest the to other this amounts to a Release and must be so pleaded 78 A Devise to two equally to be divided between them and to the Survivors of them makes a Joyntenancy upon the import of the last Words 216 227 Issue A Lease is made to commence after the Death of J. S. without Issue J. S. hath Issue and dyes and then the Issue dyes without Issue the Lease commences For Issue being nomen collectivum when ever the Issue fails the Term commences 229 Iudgment Obtained by Forgery vacated 78 So if procured by Fraud and deceipt 49 Arrested where there appears no Cause of Action 310 Warrant to confess a Judgment the Party dyes before it be confest this is a Countermand 310 Irisdictition See Sewers Judgment in an Inferiour Court reverst for want of Jurisdiction 28 Every Subject has the Liberty of removing his Suit into a Superiour Court 46 If there be several Contracts at several times for several Sums each under 40 s and altogether amount to a Sum sufficient to entitle the Superiour Court they shall be there put in Suit and not in a Court that is not of Record 65 73 In Assumpsit brought in an Inferior Court the performance of the Promise must be as well within the Jurisdiction as the Promise it self 72 Inferiour Courts ought not to award a Capias but upon Summons first returned and tho' a fault in the Process is aided by appearance yet an Action of false Imprisonment lies 220 249 Where infra Jurisdictionem is necessary to be set forth and alledged 240 243 The Liberty of the Subject is infringed by bringing him within a private Jurisdiction when the matter arises out of it 333 Action on the Case for the same 369 Iury. Where a Juror may be withdrawn 28 In case of Life and Member if the Jury cannot agree before the Judges of Assizes depart they are to be carried after them in Carts 97 Twelve necessary on a Writ of Enquiry as well as in a Venire 113 Where the Iury's eating or drinking at the charge of either Party shall avoid their Verdict and what other Actions shall be sufficient Cause to avoid it 125 Whether the Statutes requiring Jurymen to have so much Freehold extend to Corporate Towns 366 K. King THE King in bringing an Action may choose his County or wave that which he had chosen before as he may wave his Demurrer and joyn Issue 17 King and Council may disfranchise any Member of a Corporation The Walls of N. were ordered to be pulled down by King and Council à fortiori an Alderman there may be displaced upon just Cause 20 The King may stay the Proceedings and the Attorney General Enter a noli prosequi after the Jury are returned 33 Lords Spiritual and Temporal and Commons the three Estates and the King Head of all 325 Knight See Abatement L. Lancaster OF the Dutchy Court of Lancaster and its Jurisdiction 155 infra Latitat A Man may take out a Latitat before the Money is due yet the Party must not be Arrested upon it before 28 Lease See Recovery No reason to favour Long Leases By the antient Law a Lease for about 40 years was void and they are never without suspicion of Fraud 58 A Lease made to begin from the End of a Lease misrecited shall commence presently 83 A Lease without any Date specified or an impossible Date as from the 40th of September shall commence presently 137 What Act determins a Lease at Will 247 Leet The Kings Court granted to Lords of Mannours as derived out of the Town 26 Presentments may be there for the King and the Lord of the Mannor ibid. Fines in Leets where they may bedistrained for and where not 105 Presentment at a Leet quasht where the Court appears to be held above a Month after Michaelmas 107 Difference between the Stewardship of a Leet and a Court Baron 153 Libel The having a Libel in ones Lodging and not delivering it to a Magistrate was only punishable in the Star-Chamber unless the Party Maliciously published it 31 Liberties Of Returna Brevium 405. Their Vexation and Inconveniency 412 Liberties belonging to Monasteries came to the King on their Dissolution and that without the Aid of the Statute 32 H. 8. chap. 20 407 Limitations Whether the Statute of Limitations extends to bar a Promise between Merchants relating to Trade 90 Livery Livery within view where good and where not 186 London By the Custom of London a Debtor may be Arrested before the Mony is due to make him find Sureties 29 What Debts shall be Attachable by Foreign Attachments according to the Custom of London 112 113 Custom to commit Offenders for obstinately and contemptuously refusing to obey the Order of the Court of Aldermen Good 115 Whether they may Imprison a Stranger for Marrying their Orphan without License 178 Their By-Law to restrain the number of Carts Good 21 196 Of their Duty of Scavage 298 Custom to Disfranchise and commit a Freeman for speaking opprobrious Words of an Alderman Not good 327 Of their Duty of Water Baylage 351 M. Mandamus TO restore an Alderman 19 Lies not to restore a Town Clark where the Corporation have power to Grant the Office Durante beneplacito 77 82. So of a Recorder 342 Lies to admit a Deputy into an Office where the Office may be executed by Deputy 111 To swear a Churchwarden 115 267 To restore a Sexton 143 153 Lies for an Office but not for a Service ibid. Lies to an Inferiour Court to cause them to give Judgment according to a Statute 188 To restore a Common Council Man in a Corporation 302 To restore an Attorney in an Inferiour Court 331 To the Ecclesiastical Court to prove a Will 335 Misnomer When and how amendable 13 Name mistaken in the Issue if right before in the Record amendable 25 Monasteries See Liberties Pensions out of Monastery Lands where to be sued for 120 N. Naturalization OF Naturalization and Denization their General Effects and Operation 418 419 Notice Whether necessary upon a Counter bond to save harmless 36 37 Upon an Award 93 In what Cases necessary and where not 200 201 Nusance See Action Whether the erecting of a Glass-house be a Nusance 26 A Rope-Dancers Booth in the Street a Nusance and a Writ to the Sheriff awarded to prostrate the Bulding 169 O. Oath OF the Marshal of the King's Bench 65 No exception to the Oath of Allegiance that the words of
one hath to his Liberty Whoever excites the People to the disobedience of a Law commits the Highest Offence under High Treason I do not mean every Law as if one which should cause a Trespass to be done should be so guity but Laws which are of a publick Nature As to the Retorn I think it is the most insufficient I ever yet saw The certainty of the sum ought to have been expressed in which he and his Sureties should have been bound for otherwise the sum required might be so great that any Person might be constrained to remain in Prison There may may be lawful inciting to the breach of the Law as a Counsel or Attorney advising an Action which is not maintainable and sometimes it may be upon some particular design as in Dier 168. Bronker being made Sheriff one Hyde dissuaded him from taking the Sheriffs Oath because of the difficulty of the Articles B. was condemned in 100 l fine and 5 weeks imprisonment for refusing of the Oath and H. in 20 l and 5 weeks imprisonment for inciting him to it and the reason was because Hyde knew it to be an Offence and that makes it differ from the case of a Counsel or Attorney but the Offence was the less because the incitement was upon a particular reason and not against the Law quatenus a Law In the Retorn here they don't say that they found he was guilty but only that they found cause to suspect him Now what Remedy can be had in such a Case can an Issue be taken whether they had cause to suspect him or no Put the case one who had been fined 10 l for an Offence against this Act in which case the Statute allows of an Appeal had come to Mr. Rudyard to know what he should do and he had advised him to bring an Appeal at the Quarter Sessions this is no Offence and yet 't is an abetting to such as meet and perhaps might be a cause of suspition to a Iustice of Peace I do not see that the Retorn is good in any part of it and therefore he ought to be discharged but I think the Iustices should do well if they know him to be guilty to commit him by a better Warrant whereupon the Prisoner was discharged For it is the usage of this Court when the Iudges are of three Opinions as here my Lord Chief Justice and Tyrrell for discharging him Archer for putting him to Bail and Wyld for remanding him to give the Rule according to the Opinion of the Two which agree The Court said they had often directed that no Habeas Corpus should be moved for in this Court except it concerned a Civil Cause because when the Party was brought in and the Cause shewn this Court cannot proceed upon it therefore the proper place to move for them is the Kings Bench but they permitted it in this Case because the Party was an Attorney of the Court. The Court demanded of Rudyard upon his first bringing in whether he would submit to what they should propose and direct he said he would submit to the Rule of the Court but the Court told him that he must do but demanded whether he would yield to what they should do by way of Arbitration but he tho' advised otherwise by his own Counsel discovered his unwillingness to submit to any thing but the Rule of Law Termino Sancti Michaelis Anno 23 Car. II. In Communi Banco Methuselah Turner versus Sir Samuel Sterling Pas ' 23 Rot ' 363. IN an Action upon the Case brought by the Plaintiff against the Defendant the Plaintiff declares That London is an Ancient City and that there is an Ancient Bridge and that there use to be two Officers for it to look after it called Bridgmasters and that they have certain Fees and Profits belonging to them And that there is a Custom for the Citizens assembled in a Common Hall or Court yearly to choose or continue those Bridgemasters And another Custom that if one of these die within the Year that the Mayor shall assemble a Common Hall and they being Congregated shall proceed to the election of another Bridgemaster in his stead for the residue of the year And another Custom that upon their proceeding to Election if there be two Persons upon Election he that is chosen by the major number of Votes is duly Elected and that if one in such case require that the Polls should be numbred that the Mayor ought to allow the Poll and that the Assembly ought to be dismissed till that were done And another Custom that the Party so chosen ought to be sworn and used to receive the Profits to his own Use That 24 June 22 nunc Regis there was a Common Hall assembled the Defendant being then Mayor and that A. and B. were then and there chosen to this Office c. and being so A. died in October following and on the 18th of the same October there was another Common Hall for the Election of a Bridgemaster in his stead congregated by the Defendant and then and there the Plaintiff and one Allen stood as Competitors to be chosen for that Office and the Question grew which had the greatest number of Electors and the Plaintiff avers that he had the greatest Number and the other denied it and he requested that according to the Custom they might go to the Poll and the Defendant not minding the execution of his Office but violating the Law and Custom of the City did then and there malitiously refuse the numbring the of Polls and made Proclamation That the Congregation of Electors should depart and discharged the Court and the other man was sworn and so he lost the Profits of the Place c. Vpon Not Guilty pleaded and a Verdict for the Plaintiff after it had been several times spoken to in Arrest of Iudgment the Court delivered their Opinions seriatim Wyld I think the Action well lies for otherwise it will be in the power of every Head Officer to get whom he will have chosen or refused It is objected That non constat whether the Plaintiff should have been chosen Answer The Law gives an Action for but a possibility of Damage as an Action lies for calling an Heir Apparent Bastard It was objected also That at the Common Law there was no Action for a Parliament man against a Sheriff for not returning of him being Elected I Answer That is a place of Burthen this of Profit if I have an Horse or Beast-Market and a Toll for Sale and one hinder the Beasts from coming hither non constat whether they should be sold Yet for the possibility of that and of the loss of the Toll thereon an Action lies 41 E. 3. 24. Pl. 17. b. An Action of the Case was brought against a Sheriff for making of a Precept to one to make a Retorn in the Plaintiffs Case who indeed was not a Bailiff of a Franchise and thereupon the Retorn was quashed Br '
sunt verificare unde petunt Judicium si praed ' Nicholaus Sabian ' accon ' suam praed ' versus eos habere seu manutenere debeant The Conclusion of the first Plea c. Et quoad resid ' Transgr ' convercon ' disposicon ' resid ' bon ' catall ' pecun ' in Narr ' praedict ' superius menconat ' iidem Alicia Thomas Benjaminus Georgius dicunt quod ipsi non sunt inde culpabil ' Et de hoc pon ' se super Patriam Et praedict ' Nicholaus Sabian ' similiter Not Guilty to the residue of the Goods c. Creswell Levinz Demurrer Et praedict ' Nicholaus Sabian ' dicunt quod ipsi per aliqua per praedict ' Aliciam Benjaminum Thomam Georgium modo forma superius placitand ' allegat ' ab accon ' sua praed ' inde versus eos habend ' praecludi non debent quia dicunt quod placitum praedict ' per ipsos Aliciam Benjaminum Thomam Georgium modo forma praed superius placitat ' materiaque in eodem content ' minus sufficien ' in lege exist ' ad ipsos Nich ' Sabian ' ab acc̄one sua p̄d ' inde versus ipsos Aliciam Benjaminum Thomam Georgium habend ' praecludend ' ad quod quidem placitum ipsorum Aliciae Benjamini Thomae Georgii iidem Nicholaus Sabian ' necesse non habent nec per legem terrae tenentur respondere Et hoc parat ' sunt verificare Unde pro defect ' sufficien ' respons ipsorum Aliciae Benjamini Thomae Georgii in hac parte iidem Nicholaus Sabian ' petunt Judicium dampnum sua occ̄one convercon ' disposicon ' bon ' catall ' ill ' sibi adjudicari c. Joynder in Demurrer Et praedict ' Alicia Benjaminus Thomas Georgius dicunt quod placitum praed ' ipsorum Aliciae Benjamini Thomae Georgii modo forma praed ' superius placitat ' materiaque in eodem content bon ' sufficien ' in lege exist ' ad ipsos Nicholaum Sabian ' ab accon ' sua praed ' versus ipsos Aliciam Benjaminum Thomam Georgium habend ' praecludend ' quod quidem placitum materiamque in eodem content ' ipsi iidem Alicia Benjaminus Thomas Georgius parat ' sunt verificare Et quia praedict ' Nicholaus Sabian ' ad placitum ill ' non respond ' nec ill ' hucusque aliqualit ' dedic ' sed verificacon ' ill ' admittere omnino recusant iidem Alicia Benjaminus Thomas Georgius ut prius petunt Judicium Et quod praedict ' Nicholaus Sabian ' ab accon ' sua praed ' inde versus eos habend ' praecludentur c. Et quia Justic ' hic se advisare volunt de super praemiss priusquam Judicium inde reddant dies inde dat' est tam praed ' Nicholao Sabian ' quam praed ' Aliciae Benjamino Thomae Georgio hic usque in Octab ' Sancti Hillar ' de audiend ' inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Lechmere versus Toplady IN an Action of Trover by Letchmere and Others against Alice Toplady Sir Benjamin Thorowgood and Others where the Plaintiffs Declared That they were possessed de ducent ' viginti quinque libris legalis monet ' Angl ' in pecuniis numerat ' and of ten pipes and fifty gallons of Canary and of divers other things in the Declaration mentioned which they lost and which came afterwards to the possession of the Defendants and they converted them to their own use The Defendants as to divers of the Goods in the Declaration mentioned which they particularly recite in their Plea plead in Bar That in Michaelmass Term in the second year of the late King James the Second the said Plaintiff commenced an Action against the now Defendants in the Kings Bench de plaeito Transgr ' super Casum where they Declared that the Defendants Vi armis took the said Goods and Chattels in the Declaration now mentioned and pleaded to apud London c. ceperunt asportaverunt To which the Defendants pleaded Not Guilty and went to Trial upon that Issue Vpon which the Jury found a Special Verdict which the Defendants set forth in their Plea verbatim together with the whole Record in the Kings-Bench and that upon that Special Verdict the Court gave Judgment that the Plaintiffs nil capiant per billam and that the Defendants irent inde sine die prout per Recordum Process inde in Cur ' dicti domini Regis dominae Reginae nunc coram ipsis Rege Regina apud Westm ' residen ' plen ' apparet quod quidem Recordum in plenis róbore vigore suis adhuc remanent minime reversat ' seu annihilat ' and avers that the Goods and Chattels in both Declarations ' were the same and the taking carrying away and disposing of the said Goods in the said Action of Trespass and the coming of the said Goods to the hands of the Defendants and the disposition and conversion thereof in this Declaration mentioned are the same and the Cause of Action the same c. and as to the residue of the Goods and Chattels in the now Declaration mentioned the Defendant pleads Not Guilty and Issue thereupon and to the Bar pleaded the Plaintiffs demurred It was Argued by Serjeant Tremayne against the Bar That the Actions were of a different nature and that in many Cases Trover would lye where Trespass Vi armis would not 1 Cro. 667. Ferrars and Arden where 't is said If one deliver Goods to another to keep and brings Trespass and is Barred he may after bring Detinue because he mistook his Action Vid. 6 Co. 7. And he relied upon the Case of Putt and Royston Pasch 34 Car. 2. B. R. Rot. 422. where in an Action of Trespass upon a Not guilty Verdict was for the Defendant and Judgment and there the Plaintiff brought an Action of Trover for the same matter and the former Judgment was pleaded in Bar and upon a Demurrer it was adjudged for the Plaintiff Serjeant Pemberton contra 'T is taken for a Rule in Sparrie's Case 5 Co. 61. Nemo bis vexari debet si constet Cur ' quod sit pro una eadem causa He agreed that Trover would lye in many cases where Trespass would not but here it appears to the Court by the Matter disclosed in the pleading the Special Verdict and whole Record being set forth that the Plaintiff was barred before not for having mistaken his Action but upon the Rights and Merits of the Cause and this he said differed this Case from that of Putt and Royston Note That Case was Adjudged when Sir Francis Pemberton was Chief Justice of the Kings-Bench for there the Verdict being upon the General Issue in Trespass
whom the King shall have it unless there be a particular person grieved 188 189 267 268 A Forfeiture shall not bind in Equity where a thing may be done afterwards or Composition made for it 352 G Gaming See Assumpsit DIce Play not unlawful in it self tho' prohibited by several Statutes to certain persons and in certain places 175 Grant A Deed having no Execution to make it work as a Grant shall operate as a Covenant to stand seized 261. and by the Statute of Vses 266 Where Land is granted by Deed-Pool in Consideration of Natural Affection without Enrolment or Attornment whether it shall operate as a Covenant to stand seized or be void 318 H Habeas Corpus NO Habeas Corpus to be moved for in the Common Pleas unless it concerns a Civil Cause yet the contrary permitted in the case of an Attorney of that Court 24 Half-Blood The Half-Blood shall have equal Share with the Whole-Blood in Distribution upon the Statute of 22 23 Car. 2. c. 10. 317 Heir See Mortgage Heirs is Nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number 313 Heir and not Executor shall have the Surplusage of Lands leased for payment of Debts 359 I Infant INfants not foreclosed in Chancery till they come of Age 351 Intent No Exception to Vnum Vasum Vini Hispanici that is not said what the Vessel was made of for it is intended to be made of Wood 67 The Name of a Grantor omitted in an Indenrure supplied by Intendment 142 Racks in a Stable shall be intended to be fixt and need not to be shewn to be so in Pleading 214 Every Agreement must have some reasonable Construction that may may be consistent with the Intent of the Parties and therefore if a man agrees with another that he shall make a Drain through his Ground he shall not make it through the parties Stables or Buildings in case there are other places proper 278 In a Special Verdict nothing shall be intended that is not found 330 Imprisonment See Pleading Impropriation Whether a Rectory Impropriate being made a Lay-Fee can be sequestred by the Court Christian for not Repairing the Chancel 35 Ireland See Naturalization Of its Conquest and the Introducing the Laws of England there 4 The Power of an Act of Parliament in Ireland 5 K King See Forfeiture ALlegiance due to the Natural and not the Politick Person of the King 3 In case of things which are Nullius in Bonis where no visible Right appears the Law gives them to the King as Derelict Lands Treasure Trove Extra-parochial Tythes c. So where the Right is equal between the King and the Subject the Kings Title hath the Preference 268 The King is the Fountain of Justice and that as well Ecclesiastical as Civil and may by the Ancient Law of the Realm visit reform and correct Abuses in the Jurisdiction Spiritual 268 In what Cases Forfeitures are vested in the King before Office found and where not 270 L Law A Thing for which there is neither Practical Custom Judicial Precedent or Act of Parliament to warrant may well be judged to be against Law 7 The clearest way how to understand any Law is to consider what was the Judgment of those People among whom and the Times in which it was practical 17 To excite the People to the disobedience of a Law of a Publick Nature is the highest Offence under High Treason 23 Lease What Lease capable of a Release to work a Bargain and Sale 35 For 99 years if two Persons shall so long live determines upon the death of either 74 Legacy See Executor Legatees are to have their Proportion where the Assets fall short 358 Legatees shall refund against Creditors and if the Ecclesiastical Court give Sentence for a Legacy a Prohibition lies unless they take Security to refund 358 360 Licence See Distress Limitation See Original Mortgage Suit to recover a Depositum in Trust for a Feme Covert not barr'd by the Statute of Limitations 345 London Of the Custom of London relating to Orphans Money 340 341 M Market WHere a Market is granted to the Damage of another the Patent may be repeal'd in a Scire facias notwithstanding a Writ of Ad quod Damnum had been executed for the Return of that Writ was not conclusive 344 Marriage Whether a Man may marry his Great Uncle's Widow 9. He may 18 20 The four Statutes relating to Marriage expounded 11 infr Tho' the Stat. 32 H. 8. c. 38. allows all persons to Marry that are without the Levitical Degrees yet persons Pre-contracted or under a perpetual Impotence are prohibited to Marry 15 To Marry his Brother's Wife prohibited by the Statute tho' not by the Levitical Law 17. So of his Wives Sister ibid. Marriages in the ascending and descending Line prohibited without limit not so between Collaterals and the Reasons 18 The Ecclesiastical Courts have Conizance to punish persons Marrying within the Levitical Degrees but not to determine what is within the Levitical Degrees and what not 22 Agreements to settle in Consideration of Marriage favoured in Chancery 353 354 357 Marriage restrictions how to be observed 365 Mine If a Man opens a Mine in his own Land he may dig and follow the Vein under another Man's Ground 342 But if the Owner did there also he may stop his further progress ibid. Mortgage Where Lands are Mortgaged thrice over the third Mortgagee may buy in the first Incumbrance to protect his own Mortgage and he hath both Law and Equity for him 338 He shall hold the Land against the second Mortgagee until be be satisfied both the Money he paid the first Mortgagee and also his own which he lent upon the last Mortgage ibid. But where only Part of the Lands are mortgaged to the first and the whole to the second and after to the third here if the third buys in the first Title it shall protect only that part that is in the first Mortgage 339 A Purchaser or Mortgagee coming in upon a Valuable Consideration without Notice and purchasing in a precedent Incumbrance it shall protect his Estate tho' he purchased in the Incumbrance after Notice of a second Mortgage ibid. Mortgages not relievable in Chancery after 20 years for the Stat. 21 Jac. 1. c. 16. limits the time of Entry to that number of years and 't is best to square the Rules of Equity as near the Rules of Reason and Law as may be 340 Upon a Mortgage in Fee the Redemption Money shall be paid to the Executor and not to the Heir 348 351 Where by a Devise of all his Lands Lands in Mortgage pass 351 Where a man 's own Covenant shall restrain him from his Equity of Redemption and where it shall not 365 Murder Husband kills a Man in the act of Adultery with his Wife Manslaughter and not Murder the Provocation being exceeding great Vide the First Part of these Reports 158 N Naturalization WHether
a Scotishman Antenate being Naturalized by Act of Parliament in Ireland can Inherit Lands in England 2 Ne exeat Regnum Granted in Chancery to stop one from going beyond Sea to avoid a Sentence in the Ecclesiastical Court 345 Nonsuit The Plaintiff Nonsuited in Ejectment after Evidence where two Defendants and one appears to confess Lease Entry c. and the other not the Plaintiff shall pay Costs but quaere how to be divided 195 Notice See Chancery Conveyance Mortgage If a Man pleads a Valuable Consideration in Chancery to save his Estate from a Judgment he must also set forth That he had no Notice of the Judgment 361 O Obligation A Penalty may be recovered in an Action of Debt upon a Bill Obligatory tho' it be not drawn properly as a Penal Bill 106 Occupant Occupancy favoured in Chancery 364 Office Where the Archdeacon forfeits his Right to grant the Office of his Register by the Stat. 5 E. 6 c. 16. against the Sale of Offices whether the King or Bishop shall take advantage of the Forfeiture 188 213 267 A Dissenter that hath not received the Sacrament of 12 Months before may plead the Stat. 13 Car. 2. Stat. 2. cap. 1. to excuse him from serving Offices in Corporations 247 248 Original See Writs What Original Filing within time shall be sufficient to prevent the pleading the Statute of Limitations 193 259 Whether in the Common Pleas an Original in a Clausum fregit be sufficient to warrant a Declaration in an Assumpsit 259 Outlawry A Man in Prison ought not to be Outlawed by him who Imprisoned him 46 Action on the Case will not lye for the Party who hath an Outlawry agaist a Sheriff who neglects to extend the Goods of the Outlaw upon the delivery of a Writ of Capias Vtlagatum for that it is the King's loss 90 Whether Outlawry may be pleaded in Bar to an Assumpsit upon a Quantum meruit 282 Oxford See By-Law The Priviledge of the University not allow'd to a Townsman so as to excuse him from Office who keeps a Shop and follows a Trade tho' he be Matriculated and Servant to a Doctor 106 Priviledge not allow'd to a Member of this University in a Suit in Chancery 362 P Pardon SUits by Successor against Executor for Dilapidations not pardon'd by the General Pardon otherwise of Suits ex Officio against the Dilapidator 216 Parliament No Action lies against the Chief Officer of a Corporation for a Double-Return of a Burgess the Common Pleas having no Jurisdiction of this Matter 37 Peace The King cannot discharge a Recognizance taken for Surety of the Peace but after it is broken he may 131 A Gentleman said to be a Member of the House of Commons bound to the Peace for Challenging one of the King's Witnesses to Fight 317 Plantation Tho' a Plantation be an Inheritance yet being in a Foreign Country 't is look'd upon as a Chattel to pay Debts and a Testamentary thing 358 Pleading See Baron and Feme Covenant Intent Scire facias Copyhold What shal be held a Double Plea and what not 68 198 Trespass for carrying away diversa onera equina of Gravel naught for incertainty 73 Want of the Word alio or aliis in a Declaration where several mention is made of things of the same nature yet good enough 78 For the Defendant to traverse Matter not alledged good Cause for the Plaintiff to demur 79 If a Judgment and Execution be pleaded in an Inferiour Court not of Record the Proceedings ought to be set forth at large and not sufficient to say taliter processum fuit also it ought to be set forth That the Cause of Action did arise within the Jurisdiction 100 In a Prescription for Priviledge tempore quo non exstat memoria good enough tho' the Course be to say à tempore cujus contrarium memoria hominum non existit 130 Tho' by Course of the Court if a Defendant lye in Prison two whole Terms without any Declaration put in he may get a Rule to be discharged yet if a Declaration be afterwards delivered and Judgment thereupon 't is a good Judgment and the Bail formerly given will be liable 143 Where Freehold Lands were pleaded to pass by Surrender according to Custom the Special Custom must be set forth 144 Where the Writ contains more than is Declared for this is a Variance not aided by the Verdict and Judgment arrested 153 Debt upon Bond Condition'd That the Husband shall permit the Wife to dispose of her Personal Estate c. it is not sufficient for the Defendant to plead quod Conditio nunquam infracta fuit and put the Plaintiff to assign a Breach but the Defendant must shew forth That he hath perform'd the Condition 156 Where an Action of Trespass brought for the same Matter in another Court may be pleaded in Bar to an Action of Trover 169 170 In Trespass quod duas acras terrae fod subvert asportavit Judgment stayed because the Declaration doth not express the quantity of Earth carried away for the two Acres relate only to the Ground digged 174 The Plaintiff Declares for Assault Battery Wounding and Imprisonment the Defendant in his Plea takes no notice of the Battery naught 193 Plea in Abatement That the Plaintiff was dead before the Action brought where good 196 Where preadict is necessary and where not 197 Where a Traverse that might have been omitted is Cause of Demurrer 212 Doubleness in a Declaration cured by Answering 222 Day of the Week where material ought to be set forth in Pleading for the Court are not obliged to consult the Almanack 248 Tempore dimissionum where it should be temporibus dimissionum naught 253 254 271 Super Acclivitatem de Hampsted which is a description of a Scituation whether it be a Vill or Lieu conus sufficient for a Jury 254 272 Diversas petias Maheremij cepit c. naught for the Incertainty 262 Where the Defendant pleads an Insufficient Plea the Plaintiff shall make no Advantage of that upon Demurrer if his own Declaration be naught but Judgment will be against the Plaintiff 262. As where an Executor sues for Rent and does not sufficiently Intitle his Testator to the Estate demised ibid. Plenam potestatem Jus Titulum ad Praemissa dimittend ' and does not set forth what Estate he had whether in Fee or other Estate not good upon a Demurrer 271 Houses are set forth in Pleading to lye in Parochia praedicta and two Parishes are named before naught for the Incertainty 278 Traverse impertinent where the Matter is confest and avoided 283 No General Rule That a Matter cannot be pleaded specially which may be given in Evidence upon a General Issue and in what Cases it may 295 Vid. infra Statut. 1 W. M. cap. 4. Presumption Presumptions of Law stand as strong till the contrary appears as an express Declaration of the Party 208 Priviledge Whether the Warden of the Fleet shall have a Writ
Wingate and Stanton the Bail of William Stanton 38 Wise 's Case 69 Wood v. Coat 195 Woodward v. Aston 296 Wortley the Lady v. Holt 31 Wright v. Johnson 64 Z ZOuch v. Clay 185 ADVERTISEMENT Note That the Author of these Reports has referr'd to Croke's Elizabeth as the first Part and Croke's Charles as the third Part of those Reports except in the first thirty Sheets of the First Volume in which thirty Sheets he referr'd to Croke's Charles of the first Edition as the first Part and Croke's Elizabeth as the third Part of those Reports TERMINO Sancti Michaelis Anno 20 Car. II. in Banco Regis Sparks c. versus Martyn JONES moved for a Prohibition to the Court of the Admiralty for that they Libelled against one for Rescuing of a Ship and taking away the Sails of it from one that was executing the Process of the Court against the said Ship and for that in the presence of the Iudge and face of the Court he Assaulted and Beat one and spake many opprobious Words against him Now seeing that these Matters were determinable at Law the Ship being infra corpus Comitatus and they could not adjudge Damages to the party or Fine or Imprison He prayed a Prohibition But the Court denied it absentibus Windham Moreton 1 Cro. 216. For they may punish one that resists the Process of their Court and may Fine and Imprison for a Contempt to their Court acteâ— in the face of it tho' they are no Court of Record but if they should proceed to give the party Damages they would grant a Prohibition quoad that And of that Opinion was Wyndham the Case being afterwards put to him by the Chief Justice But the parties afterwards put into their Suggestion That the original Cause upon which the Process was grounded was a Matter whereof the Court of Admiralty had no cognisance Wherefore a Prohibition was granted For then the Rescous could be no Contempt Sir John How versus Woolley an Attorney of the Court. IT was Moved That Woolley should put in special Bail being an Attorney at large and having dicontinued his Practice But the Court said Attorneys at Large have the same priviledge with the Clerks of the Court and are to appear de die in diem And they were not satisfied that he had discontinued his Practice Suffil's Case IT was Moved to quash the Return of a Rescous against Suffil and divers others who rescued a person taken upon Mesne Process because the Rescuers being particularly named 'tis said rescusserunt and not added quilibet corum rescussit And for that Case was cited in the 2 Cro. where the Sheriff returns an Exigent against divers quod non comperuerunt upon the Quinto exacti and doth not add nec aliquis corum comperuit and for that cause it was Reversed in a Writ of Error notwithstanding Twisden being only in Court held it to be well enough it being in the Affirmative Anonymus A Prohibition was prayed to the Ecclesiastical Court for that a Parson Libelled against one there for talking of him Knave and 't was granted it not appearing to relate to any thing concerning his Function And a Case was cited to be Adjudged 24 of the Queen the Suit being in the Ecclesiastical Court for these words viz. Sir Priest you are a Knave and a Prohibition was granted Note If a man be taken in Execution he cannot be bailed tho' he brings a Writ of Error Anonymous IN Debt upon a Lease for years the Defendant may plead Entry into part upon which follows Suspension and it doth not amount to the General Issue Heely versus Ward ERror to Reverse a Iudgment given in the Court at Hull where the Plaintiff in an Assumpsit did declare That at such a place infra Jurisdictionem Curiae the Defendant in consideration that the Plaintiff had assumed to pay him so much a yard promised to deliver him so many yards of Kersey and it was assigned for Error That the delivery is not laid to be at a place infra Jurisdictionem Curiae and indeed there is no place at all And of that Opinion was Twisden he being only in Court and cited a Case where in an Assumpsit in the Marshalsey upon a Promise to make a Lease of a House in Middle Row and after Iudgment it was held Erroneous because Middle Row was not laid to be infra Jurisdictionem Curiae The Bishop of Lincoln versus Smith THe Bishop of Lincoln sued in the Court holden before his Chancellor for a Pension to which he intituled himself by Prescription and a Prohibition was prayed for Smith the Defendant there for that being by Prescription that Court had no cognisance of it And for that my Lord Coke's Opinion was cited 2 Inst 491. especially he could not sue for it in his own Court But it was resolved by Keeling and Twisden the other Iustices being absent that Pensions tho' they were by Prescription might be sued for in that Court for having cognisance of the Principal that shall draw in the Accessory As if one Libel for a Modus decimandi if they allow it they may try it and Coke's Opinion they said was not warranted by the Books and Fitzh N.B. 524. is against it 2 Cro. 483. and the Court being held before the Chancellor and not the Bishop himself he might sue there Vide Hob. 87. Conusans of Pleas granted to be holden before the Steward of the Grantee licet the Grantee fuerit pars Anonymus AN Attachment was prayed against one who being arrested upon a Latitat gave a Warrant of Attorney to Confess a Judgment and presently after snatched it out of his hand to whom it was delivered and tore off the Seal And the Court seemed to incline in regard it was to Confess a Judgment in this Court that it was a Contempt upon which an Attachment might be granted Anonymus A Prohibition was prayed to stay a Suit in the Court Christian for Tythes upon the suggestion of a Modus which was alledged in this manner That the Proprietors and Occupiers of such a Mannor or any parcel thereof should pay a Groat to the Parson for Herbage Tythes The Court held his this could not be for if a man had but two or three Foot of Ground in the Mannor he should pay a Groat but it ought to have been laid That the Proprietors and Occupiers of such a Mannor for themselves and their Farmers had paid Four pence Twisleton versus Hobbs ACtion for these Words You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds The Iury found the Defendant Not Guilty as to the first Words and resolved the last Words were not Actionable if not being laid that he knew of the Forgery Sir Thomas Griesley's Case INformation against him for stopping the High-way the word was Obstupabat It was proved in Evidence that he plowed it up and Resolved it did well maintain the Information Anonymus IN Debt If
gives the Action of Covenant to the Assignee of the Reversion saith That they shall have such Actions in like manner as the Lessors should have had Now if it had been brought by the Lessor it had béen transitory and so in the Case of an Assignment by Commissioners of Bankrupt the Assignee of the Commissioners of Bankrupt shall bring Debt as the first Creditor should have done But it was said on the other Side That the Statute intended not to assign it as a bare Chose en Action but to knit it to the Reversion and where it saith The Assignee shall have Remedy in like manner that is the same Remedy in substance And in the case of the Bankrupt's Debt the Contract is only assigned And in the 42 Ed. 3. cap. 3. it is said That an Action of Covenant lay for the Assignee at the Common Law But because the Court was not full it was thought fit this Case should be Adjourned till the next Term. Note It was said in this Case the Word Reddendum makes a Covenant Day and Pitts A Prohibition was moved for to stay a Suit in the Spiritual Court upon a Suggestion that it was for calling one Old Thief and Old Whore and if there were any such Words spoken they were spoken at the same time Which Suggestion was not good for the Words ought to have been fully confest And it was said by the Court That this Matter ought to have been pleaded there and if they had not admitted the Plea then to move for a Prohibition and not before Gilman and Wright BUrgh moved against Wright Steward of Havering Court in Essex for refusing to admit Gilman an Attorney in this Court to Appear for a man in an Action sued against him there alledging That the Attorneys of the Courts of Westminster might Practise in any Inferiour Court neither had they a Prescription or Charter to have a certain Number of Attorneys of their own and to exclude others But because it was the general Vsage of those Inferiour Courts to admit none but their own Attorneys tho' the Court seemed to incline That they ought not by Law to refuse Others and it was said to be so Adjudged in the 15th of Car. 1. in one Darcie's Case yet they would be Advised until the next Term. Note One who is Subpoena'd for a Witness may have a Writ of Priviledge to protect him from Arrests in going and returning Anonymus A Prohibition was granted to the Court of the Marches of Wales for that Lands being discended to an Infant which were subject to a Trust they had not only enjoyned the possession of those Lands but of other Lands discended to him And it was said by the Court That they could not Sequester Lands at all for the performance of a Decree of their Court to pay Money For they can only agere in personam non in rem Termino Sanctae Paschae Anno 21 Car. II. In Banco Regis Anonymus THe Sheriff Returned Non est inventus to a Writ brought against his own Bayliff and delivered to him But the Court Amerced him Forty shillings and he was ordered to amend his Return Anonymus TRover and Conversion was brought against Baron and Feme for that they ad usum proprium converterunt disposuerunt and held not to be good because the Wife cannot Convert with her Husband Skinner and Gunter c. A Bill in the nature of Conspiracy was brought against Three for that they 2 Cro. 667. Hob. 205 266. Conspiratione inter eos habita caused the Plaintiff to be Arrested in London on purpose to vex him and have him Imprisoned knowing that he was not able to find Bail whereas they had no cause of Action The Defendants pleaded Not guilty and the Issue was found only against one of them It was moved in Arrest of Judgment That the Declaration was Insufficient because it was not declared that the first Action was determined as no Conspiracy lies upon an Indictment before Acquittal But the Court inclined to disallow this for here the ground of the Action is the caussess troubling of him to put in Bail But when a man is Indicted he lies under the scandal of the Crime until he is acquitted Another Exception was That this Bill being in the nature of a Writ of Conspiracy there being One only found Guilty the Action fails But it was said True it is so in case of Conspiracy to Indict One of Felony but here 't is rather in nature of an Action upon the Case and the Conspiracy alledged by way of aggravation Fitz. N.B. 116. Et Adjornatur Anonymus AN Indictment was removed hither the last Term out of Middlesex against Edward S. of Perjury and he was named Edward all along in the Indictment unto the Conclusion and then it was sic praedictus Johannes commisit perjurium The Court was moved that this might be amended and it was said Indidictments removed out of London have béen amended by the Original for they do not certifie that but only a Transcript and a Jury have been resummoned to amend an Indictment found in this Court and in this case if by Examination of the Clerk of the Peace it appeared the Indictment certified varied from the Original it might be amended sed Curia advisare vult Nota If a Venire Facias be returned and not filed a new one may be taken out Thomas Burgen's Case AN Indictment was brought against Thomas Burgen for selling Ale in Black Pots not marked and doth not conclude contra formam Statuti and held to be good enough for the Common-Law appoints just Measures and tho' the Statute adds this circumstance yet the Crime being at the Common-Law the conclusion is as it ought to be Where a Statute makes an offence more Penal as that which deprives one that Steals the value of Five shillings out of a dwelling house in the day time of his Clergy yet the conclusion of an Indictment in that case is not contra formam Statuti Nota Where one is sued by a name with an Alias the Addition must ever be expressed after the first name Clerke and Cheney IN Trespass for breaking of his Close the Defendant justifies by reason of a way from his House thorough the place where usque aâ—tam viam regiam in parochia de D. vocat London Road and Issue was joyned upon the way and found for the Plaintiff Vid. Hob. 189. it was moved in Arrest of Judgment that there was no Issue joyned for the incertainty of the terminus ad quem whether this way should lead and one that justifies for a way if he alledges the place from whence and to which and that it leads over the place where 't is sufficient tho' he mistake the other mean passages of it and tho' this be the Defendants own Plea yet he may take exceptions to it not being certain enough to make an Issue Sed non allocatur for in regard it is found
of Ground whereupon a Pump stood and grants that he shall have the free use of the Pump during the term and Covenants that he should enjoy dimissa praemissa and assigns a Breach in that he suffered Antliam praedictam esse fractam totaliter spoliatam And to this the Defendant Demurs And it was said in Maintenance of the Action That the Defendant having granted the free use of the Pump was bound to do all things necessary to make his Grant effectual to the Plaintiff or else he broke his Covenant of Enjoying and if the Plaintiff should come to Repair it he would be a Trespasser And of this Opinion was Keeling But Twisden conceived That an Action of Covenant would not lye there being no express Covenant to Repair it Otherwise if he had taken away the Pump and here he might bring an Action upon the Case because he lost the use of it and they Two being only in Court it was Adjourned Postea Anonymus A Presentment was made in a Leet for Erecting of a Glass-House which was said to be ad magnum nocumentum per juratores Jurat ' pro Dom ' Rege Dom ' Manerii tenentibus It was said A Man ought not to be punished for erecting of any thing necessary to the exercise of his lawful Trade but it was Answered that this ought to be in convenient places where it may not be a Nusance For Twisden said He had known an Information Adjudged against one for Erecting of a Brew-House near Serjeants-Inn But the other Justices doubted and agreed that it was unlawful only to Erect such things near the King's Palace But this Presentment was clearly Ill because it was not ad commune nocumentum And it was said further That the Leet was the King's Court and therefore it ought not to be Jur ' pro Dom ' Rege Dom ' Manerii tenentibus But the Court held it Surplusage for tenentibus and good for the King and the Lord of the Mannor For Leets are granted to the Lords as derived out of the Tourn 2 Cro. 382. for the ease of the Resiants within its Iurisdiction More versus Lewis IN an Assumpsit the Plaintiff declares upon Two Promises One was That in Consideration that he had done him multum gratissimum servitium the Defendant promised to pay him Ten Pounds a year The Consideration of the other was That he had done him multa beneficia Vpon Non Assumpsit pleaded and found for the Plaintiff as to both the Promises and entire Damages given it was moved in Arrest of Judgment that neither of these Considerations were sufficient especially the last for there ought to have been some Service particularly expressed To which it was Answered That this being after a Verdict the Court must intend that the Plaintiff gave in Evidence something that he did which was Consideration sufficient otherwise the Jury would have give no Damages And a Case was cited in Hutton's Rep. 84. where the Plaintiff in an Assumpsit declared That in Consideration that she had served the Defendant and his Wife and done them loyal Service that he would give her 13 s 4 d And a Verdict being found for her she had Iudgment Sed nota In the Book nothing was said to be moved in Arrest of Judgment but the Insufficiency of the Consideration in respect that it was executed and laid to be done at the Request of the Defendant But the Court held clearly that nothing being particularly expressed in the Consideration of the Second Promise in this case it was meerly void and entire Damages being given the Plaintiff could not have his Judgment And thereupon Iudgment was Entred Quod querens nihil capiat per Billam Gregory versus Eads ERror to Reverse a Judgment given in the Court at Warwick in an Assumpsit where the Plaintiff declared of Three Promises whereof one was found for the Plaintiff and as to the other two that the Defendant Non Assumpsit and Iudgment was given for the Plaintiff for that which was found for him but no Iudgment was given as to the other that the Plaintiff should be amerced pro falso clamore or quod Defendens eat inde fine die And it was assigned for Error that this Judgment was defective and ought to be Reversed To which it was answered That the Judgment ought to stand for so much as was good Vid. con 2 Cro. 424. and 2 Cro. 343. was cited where in an Action for Words spoken at divers times the Jury found the Defendant guilty as to all and gave several Damages whereupon there was Judgment and a Writ of Error brought and assigned in that the Words spoken at one of the times were not Actionable Which being agreed the Court Resolved that Judgment should be reversed only quoad them and should stand for the residue for utile per inutile non vitiatur And Slocomb's Case 1 Cro. 319. where a Writ of Error was brought to Reverse a Judgment given in an Action for Words and assigned in that it was Entred Concessum fuit quod querens nihil capiat c. whereas it should have been Consideratum Yet because the Words were Insufficient the Court tho' they held the manner of the Entry erroneous ordered Judgment to be given Quod querens nihil capiat per Billam Et Adjornatur Postea Note It was said by Serjeant Maynard That after all the Evidence given in an Information the Kings Council may without the parties Consent withdraw a Juror and try it over again And so he said it was done by Hobart Attorney General 5 H. 7. and in the Exchequer by Noy in King Charles the First 's time Barkly versus Paine IN an Assumpsit in an Inferiour Court the Consideration was That the Plaintiff should solicit a Cause in Chancery The Court Reverst the Judgment for want of Jurisdiction It had also another fault for it was Defendens in misericordia capiatur Anonymus IT was moved to quash a Return of Rescous for that it was Vi armis in Ballivum meum affraiam fecerunt è custodia mea adtunc ibid ' rescusserunt and not Vi armis rescusserunt Sed non allocatur for by reason of adtunc ididem vi armis mentioned at first shall be applied to all Hanway versus Merrey THe Case was The Defendant had Covenanted to pay the Plaintiff a Sum of Money the 24th of June next whereupon the Plaintiff takes out a Latitat Teste 3 Maii Returnable the last day of Trinity Term following and Arrested the Defendant upon it Which being made appear to the Court they discharged the Arrest For tho' 't is allowed a man may take out a Latitat before the Money is due Yet the party must not be Arrested upon it before And this differs from an Original which if it bears Teste before the Money be due it is abateable but the Latitat is only to bring him in custodia that
against Bates a Schoolmaster who as it was alledged taught School without the Bishops Licence and it was granted because they endeavoured to turn him out whereas they could only Censure him he coming in by the Presentation of the Founder In a Feoffment of Tythes and Lands where there is no Livery if they do adjudge the Tythes to pass notwithstanding there is no Livery a Prohibition will lye In Debt upon a Lease at Will there must be an Averment that the Lessee occupied the Lands But it is otherwise upon a Lease for Years Anonymus THe Court was moved to grant an Attachment against a Justice of the Peace who upon Complaint refused to come and view a Force But the Court denied it and directed the party to bring an Action of Debt for the 100 l Forfeiture given by the Statute in that case It was said by the Court That in an Execution upon a Statute Merchant there is no need of a Liberate as there is upon a Statute Staple And in the Case of a Statute Staple the Conusee can bring no Ejectment before the Liberate neither can the Sheriff upon the Liberate turn the Terre-Tenant out of possession as he is to do upon an Habere facias possessionem Dier versus East AN Action was brought against the Defendant upon an Indeb ' pro diversis Mercimoniis venditis deliberatis to the Wife to the use of her Husband it being for her wearing Apparel And after Verdict for the Plaintiff it was moved in Arrest of Judgment that this Declaration being laid That the Sale was to the Wife tho' it was to the use of the Husband it was not good as if it had been sold to the Servant of the Plaintiff Nevertheless the Court were of Opinion That it being for her Apparel and that suitable to her Degree the Husband was to pay for it as had been Resolved in this King's time in Scot and Manby's Case in the Exchequer Chamber and that the Declaration was well enough Anonymus THe Defendant in an Action of Debt upon a Bond sued out an Injunction in Chancery where after the Case had depended for two years the Court was moved that the Plaintiff might accept of his Principal Interest and Charges The Court said If the Defendant comes before Plea pleaded and makes such a proffer they are ex debito Justitiae to allow it But now he having delayed the Plaintiff in Chancery two years it was in their discretion And the other three against the Opinion of Keeling thought fit to deny it Clarke versus Phillips al' UPon the Trial in an Ejectment the Title of the Plaintiff's Lessor appeared to be by a Remainder limited to him for Life upon divers other Estates and that there was a Fine levied and Proclamations passed but he within the Five years after his Title accrued sent two persons to deliver Declarations upon the Land as the course is upon Ejectments brought The Court Resolved that this was no Entry or Claim to avoid the Fine he having given no express Authority to that purpose and the Confession of Lease Entry and Ouster by the Defendant should not prejudice him in this respect In this Case Keeling and Twisden were of different Opinions in this Point Viz. If he that hath power of Revocation over Lands c. makes a Lease for Life whether it suspends the Power only as a Lease for years would do or extinguisheth it as a Feoffment The King versus Monk al' IN an Information for a Riot it was concluded contra formam Statuti 13 H. 4. which appoints Justice of the Peace upon complaint of Riots to View and Record them And after Verdict it was moved in Arrest of Judgment that this Information was not good it being grounded upon this Statute which only mentions Riots and appoints them to be punished in the manner there expressed But the Chief Justice Keeling was of Opinion that it being a Crime at the Common Law and mentioned in this Statute the Information was well concluded But the other Justices inclined to the contrary Anonymus DEbt upon a Bond Conditioned to perform Covenants in an Indenture The Defendant pleaded That there were no Covenants contained in the Indenture on his part to be performed The Plaintiff demands Oyer of the Indenture which is Entred verbatim and then Demurs which he could not well do before the Entry of it whereby it becomes part of the Bar so the cause of the Demurrer appears Then it was alledged by Saunders whose Hand was to the Plea That the Plaintiff could not have Judgment because he had set forth no Breach But the Court was much offended with him For they held the Plea in Bar meerly for delay and advised against the Statute of Westm 1. Robinson versus Pulford IN an Assumpsit the Plaintiff declared That the Defendant in Consideration that the Plaintiff would deliver such silver Threads and other Wares into the Shop of J. S. that he should require that he would see him paid Now after an Assumpsit pleaded and Verdict for the Plaintiff it was moved in Arrest of Judgment That the Plaintiff had not averred in his Declaration that J. S. had not paid for the Goods For the promise to see him paid was no more than if he had said If J.S. doth not pay you I will in which Case such Averment must have been But the Court Resolved that a Promise to pay and to see him paid was all one and the Averment unnecessary Rushden versus Collins IN an Assumpsit the Plaintiff declared the Consideration to be pro opere preantea facto After Verdict for the Plaintiff it was moved in Arrest of Judgment that opere was too general and might intend so inconsiderable a matter as would not amount to a Consideration for the Plaintiff But they gave Judgment for they said labore or servitio had been adjudged sufficient Lee versus Edwards IN an Assumpsit the Plaintiff declared That in Consideration that he would employ his skill and pains and provide Medicaments for and Cure a certain person of a Pthysick that he would pay what he deserved and lays another Promise at the same time in Consideration as aforesaid and alledges the Promise somewhat varying from the first and concludes with an Averment That he had bestowed his pains and cured accordingly Vpon Non Assumpsit pleaded and a Verdict for the Plaintiff the Court was moved to stay Judgment because the Plaintiff had made no Averment of the Cure upon the first Promise and entire Damages were given so it was ill in all But the Court were of Opinion That in regard he had Averred it upon the second Promise so as it appeared upon Record that the Cure was done it aided the omission of it in the first especially being after a Verdict Nota There is an Inquisition upon every ones death that dies in the Kings-Bench by the Master of the Crown-Office and Coroner Pomfret versus Rycroft IN a Writ of
Covenant the Plaintiff declared That the Defendant demised to him a House with the use of a Pump and that he suffered it to be so out of Repair that it became Useless To this Declaration the Defendant demurs and Counsel being heard on either side divers times the Court delivered their Opinions severally Keeling Rainsford and Moreton held that the Action did lye the Use of the Pump being part of the things demised which Words make a Covenant as in 4 Co. Noke's Case and in 5 Co. Spencer's Case If a man let an House together with Estovers to be taken in the Wood of the Lessor and afterwards the Wood is stubbed up there Covenant lies for the Lessee And Rainsford put this Case If a mans Lets the Middle Rooms of his House to one and the Vpper to another and lets the Roof of the House decay he conceived Covenant would lie for the Lessee of the middle Rooms And if a Parson makes a Lease and then Resigns he is liable to Covenant as in 12 H. 4. And the Lessee would be at a mischief for he should be a Trespasser to Enter and Repair and if the Lessor ousts the Lessee of any of the things demised 't is clear the Covenant lies and this is as much an ouster as can be in this case where the Lessor is possessed himself And so Iudgment was given for the Plaintiff against the Opinion of Twisden who held strongly to the contrary for he said he might have an Action upon the Case and so remedy for his Damage Also he held clearly That he might Enter and Repair as if one Licence another to lay Pipes in his Ground to convey Water he may justifie an Entry to Repair the Pipes And he cited a Case adjudged in 9 Jac. where one by Licence erected a Cock of Hay in anothers Ground And it was held That the Owner of the Soil might put in his Beasts into that Ground but he that had the Licence might by vertue of that Licence also fence in his Hay Quando aliquid conceditur conceditur id sine quo res ipsa uti non potest and he said that he never met with a Case where Covenant would lie but upon an actual ouster either by a Stranger that hath eigne Title or the Lessor himself And this was a non feasans and in that he differenced it from the Case of Estovers being an actual Tort to stub the Wood up and in Covenant upon an ouster of a Term if it be not incurred Iudgment shall be to recover the Term it self as F. N. B. 145. which cannot be in this Case for the Sheriff cannot put him into possession of the use of the Pump neither is it fit that he should recover Damages for all the Term for it may be the Pump will be presently repaired And he conceived that if the Lessor Cuts down Trées growing upon the Land Demised no Covenant lies yet the Trees are Demised with the rest Ante. Anonymus A Draws a Bill upon B. to the use of C. and Vpon Non-payment C. Protests the Bill he cannot Sue A. unless he gives him notice that the Bill is Protested for A. may have the Effects of B. in his Hands by which he may satisfie himself Note It was said if an Action to recover Lands of which a Fine was Levied were brought and discontinued by the Demandant this would not amount to a Claim Glyn versus Smith A Scire facias upon a Record in the Kings Bench where the Action is brought by Original must alledge a place where the Court was holden because 't is Ambulatory and the Writs returnable there are coram nobis ubicunque tunc fuerimus in Angliâ But it is otherwise upon Records in the Common Pleas for that is confined to a certain place by Magna Charta Anonymus IT was moved to quash a Return of a Rescous because it was Mandavi Ballivis who took him virtute Warr ' praed ' And it was said Mandavi did not imply that it was in Writing But the Exception was disallowed by the Court. Anonymus IF the Party that brings an Audita Querela be out of Prison the Court will Bail him though grounded upon a surmise of a matter of Fact as payment c. But if he be in Prison not unless there be a Specialty Parries Case DIvers Deeds and Evidences were shewn to Counsel for his Opinion of the Title to certain Lands which were to be sold He delivers them to one Parry a Scrivener by the consent of the Parties Parry finding a Deed to concern the interest of a third person gives it to him and upon complaint to the Court they commanded him to produce the Deed that it might be delivered back again to the Parties they conceiving it an abuse in his practice which was under the Regulation of this Court Anonymus IN Replevin in the Court at Canterbury the Defendant avowed for Rent Afterward this was removed by the Plaintiff into the Kings-Bench and the Defendant prayed a Procedendo because Canterbury was a County of it self and no Assizes there and so the Cause could not be tried But the Court denied it saying it was their own fault that they had not the Assizes there and every Subject had the liberty of removing his Suit into a Superiour Court Twisden said He had formerly known it to be denied in an Ejectment Girlington versus Pitfield IN an Action upon the Case for malitiously prosecuting of an Indictment of Perjury against him of which he was acquitted upon Not guilty pleaded it appeared upon the Evidence that the Defendant was a Justice of the Peace and procured some as Witnesses to appear against him and his own name was endorsed upon the Indictment to give Evidence The Court agreed that this did not make him a Prosecutor for if a Iustice of the Peace knows any person that can give Evidence against one that is indicted he ought to cause him to do it But it was proved on the Defendant's side That this Indictment was drawn up by an Order of the Sessions Wherefore Keeling Chief Justice said That the Plaintiff deserved to be bound to his Good Behaviour for bringing of this Action Horne versus Ivie IN Trespass for taking of a Ship and Sails the Defendant justified by a command from the Governours and Society of the Trade into the Canaries who were Incorporated by that name and had the sole Trade granted to them with a Forfeiture of all such Goods as should be imported hither from thence by any person not of their Company and that the Ship of the Plaintiff brought Goods from thence To this the Plaintiff Demurred His Counsel did not much insist upon the validity of the Patent because it was a Monopoly though it was said to be also against divers Statutes to Prohibit Merchants frèe trading to forein parts as 9 E. 3. cap. 1. 25 Ed. 3. cap. 2. 11 R. 2. cap. 7 and that there could grow no Forfeiture of
Berwick is part of Scotland and bound by our Acts of Parliament because Conquered in Edward the Fourth's time But the course is to name it expresly because 't is out of the Realm and not like to Wales where the Trials in such Cases shall be out of the prochein County 19 Hen. 6.12 for that is a Member of England Vid. 7 Co. Calvin's Case But two Presidents being shewn where the Trials were as it is here and one of them affirmed in a Writ of Error also the Case in Rolls tit Trial 597. A Writ of Error was brought to Reverse a Judgment given in Ireland and an Error in Fact was assigned and tryed in a County next to Ireland The Court Ruled the Venire to be well awarded Twisden said The Reason why an Ejectment would not lye of Lands in Jamaica or any of the Kings foreign Territories was Because the Courts here could not command them to do Execution there for they have no Sheriffs This Case having remained two or three Terms since the Postea was Returned and no Continuances Entred one of the Plaintiffs died and it was doubted whether Judgment could be now Entred And the Secondary said That they did Enter up Judgments two Terms after the Day in Bank as at the Day in Bank without any Continuances And of this Matter the Court would be Advised Postea Anonymus IF one upon Complaint to two Justices 1 Cro. Prigeon's Case be Ordered to keep a Bastard Child and this upon an Appeal to the Sessions is revoked that Person is absolutely discharged and unless a Father can be found the Court said the Justices of Peace must keep it themselves The Earl of Peterborough versus Sir John Mordant IN an Action upon the Statute de Scandalis Magnatum for speaking these Words of the Plaintiff I do not know but my Lord of Peterborough sent Gybbs to take my Purse After Judgment by Default and a Writ of Enquiry of Damages returned it was moved in Arrest of Judgment that no Action would lye for these Words First He doth not positively charge him with it Again The Words do not import a Felonious taking Hob. 326. Mason's Case I charge him with Felony for taking Money out of the Pocket of H. Stacie adjudged not Actionable And in 1 Cro. 312. Thou didst set upon me and take my Purse go before a Justice and I will charge you with Felony It was held there that no Action would lye But the Court gave Iudgment for the Plaintiff As to the first it was held as much as a direct Affirmation for otherwise one might slander another and by such a slight Evasion escape an Action Twisden said He knew these Words adjudged Actionable He hides himself for Debt and for ought I know is a Bankrupt And for the Words the Court said Three was difference between an Action grounded upon the Statute de Scandalis Magnatum and a Common Action of Slander The Chief Justice said The Words in the one case shall be taken in mitiori sensu and in the other in the worst sense against the Speaker that the Honour of such Great Persons may be preserved More 55. The Earl of Leicester had Judgment for these words My Lord of Leicester is a Cruel Man an Oppressor and an Enemy to Reformation Leon. 33. The Lord Abergavenny sued for these words My Lord Abergavenny sent for us and put some of us into the Stocks some to the Coal-house and some to the Prison in his House called Little Ease And Recovered Vide Crompton's Jurisdiction of Courts 13. and Leonard 336. Anonymus AN Indictment was Compertum fuit per Sacramentum duodecim proborum legalium hominum c. and quashed because it was not jurat ' onerat ' And the Clerk of the Crown-Office Informed the Court that that was always the Course also it must be Adtunc ibidem jurat ' where the Caption is recited to be taken Williams versus Gwyn ERror to Reverse a Judgment given in Dower in the Grand Sessions in Wales It appeared by the Record that the Tenant appeared upon the Summons Returned and Day was given over adtunc venit per Attornatum nihil dicit in barram Whereupon Consideratum est quod tertia pars terr' tenemen ' capiatur in man ' Domini Regis and Day was given ad audiend ' Judicium at which Day Iudgment was given quod recuperet It was Assigned for Error that the Court here had awarded a Petit Cape and yet the Defendant appeared whereas they should have given Iudgment upon the Nient dedire for a Petit Cape is always upon default after appearance and only to answer the Default The Grand Cape is before appearance to answer the Default and the Demand Vet. N. B. 97. So it was said the Court had erred in Judgment and tho' it were in advantage of the Tenant by the delay yet not being by his Prier as an Essoign granted where none ought to be is not Error but the act of the Court as if they should Enter a Misericordia for a Capiatur it were Erroneous But the Court answered That the reason of that was Because it is parcel of the Judgment and the King should lose his Fine But this was only the awarding of Process more than should be and in advantage of the Tenant wherefore they resolved that they could not Reverse it for Error And Twisden said Admitting it were Erroneous they might then give Iudgment in this Court Anonymus A Prohibition was prayed to the Arches for Libelling against one there for calling Whore and Baud because they were but words of Heat also the Party lived in the Diocess of London so against 23 H. 8. to Cite him there But the Court would not grant it for though formerly there hath been divers Opinions touching these words yet Twisden said ever since 8 Car. the Law hath been taken that they may punish such words pro reformatione morum And for the other it appeared Sentence was given and that it was too late to pray a Prohibition when it appears they have Iurisdiction of the Cause as the Superiour Court and he that would have the benefit of the Statute against citing out of the Diocess must come before Sentence 1 Cro. Anonymus FInch Solicitor moved for a Prohibition to the Ecclesiastical Court to stay a Suit for Tythes of Hopps commenced there by the Vicar upon a Suggestion that they had paid for all Tythe Hopps so much an Acre to the Parson time out of mind But it was denied for there could be no such Composition time out of mind Hopps not being known in England until Queen Elizabeths time for then they were first brought out of Holland though Beer is mentioned in a Statute in Henry the Fourth's time But it was said by the Court That perhaps the Vicaridge was Endowed time out of mind of the small Tythes of which nature Hopps were Then the prescription of paying of Modus to
went out upon such particular direction and recommendation 'T is some mitigation that they had such advice of Counsel otherwise I should not stick to fine them 100 l apiece We are bound to take care of the support of the Government I agree the Fines Keeling Chief Justice It is provided by 23 H. 8. cap. 5. that the Laws Acts c. to be made by the Commissioners of Sewers should stand good and effectual c. no longer than the Commission endured except they were Engrossed in Parchment and certified under their Seals into the Kings Court of Chancery and then the Kings Royal Assent to be had to the same c. But that was altered by this of 13 Eliz. whereby it is Enacted That their Laws c. should stand and continue in force without any such Certificate to be made thereof into the Chancery and then a little after in this Statute follows the Clause which hath been read and that refers wholly to Certificates or Returns to be made into the Chancery for the purpose aforementioned 'T is plain the Clause refers not to this Court for it speaks of returning their Comissions now their Commissions were never returnable into this Court this Court cannot be ousted of its Jurisdiction without special words here is the last Appeal the King himself sits here and that in person if the pleases and its Predecessors have so done and the King ought to have an account of what is done below in inferiour Jurisdictions 'T is for the avoiding of oppressions and other mischiefs To deny and oppose this and to set up uncontrolable Jurisdictions below tends manifestly to a Commonwealth and we ought and we shall take care that there be no such thing in ours days I know there is a great clamour so soon as an inferiour Jurisdiction is touched and t is thought we deal hardly with them But unless we will suffer this Court to be dissolved and the Prerogative of the King to be encroached upon we must oppose our selves to these Proceedings I have a great respect for these persons the Commissioners but 't is but usque ad aras When the Jurisdiction of the Crown the Justice of the Kingdom and the Duty of my place is concerned I ought not to spare my best Friends Some Presidents have been cited in this Case and many more might there are two memorable Records cited 1 Cro. concerning persons which contemned the Kings Writ and their Penalties I agree the Fines and hereby we do not go so high as our Predessours have gone Hundreds of years ago Nota This Proceeding and Sentence of the Court was upon Confession of the Commissioners the Court forthwith making an Entry and Record of their Confession In an Assize only where the Writ is Returnable into this Court it is apud Westmonaster ' but in all other cases where Writs are Returnable out of Chancery into this Court they are Returnable Ubicunque c. The King versus Jane D SHe was Indicted for Stealing of several things and pleading Not Guilty and a Jury sworn to try her the Witnesses not appearing were suspected to be tampered with by the Prisoner and the Jury were discharged and the Trial put off Vid. 1 Inst 227. b. Wise's Case AN Order of the Justices of the Peace for the maintenance of a Poor Woman was Confirmed tho' it appeared she was able of Body to work But the Justices of the Peace are Iudges of that Cousin's Case ERror to Reverse a Fine for Infancy Now 't was moved that the party being in Court she might be inspected and the Inspection Recorded and there was produced and read a Copy of the Register Book sworn to be a true one and several Affidavits of her Age. Curia Let the Inspection be now Recorded the Issue of her Infancy may be tryed at any time hereafter tho' she comes of Age. Nota A Prisoner in the Kings-Bench that lyes in the Common Side pays no Fees for his Lodging Anonymus IT was said by Twisden That if two submit to an Award this contains not a Reciprocal Promise to perform but there must be an Express Promise to ground an Action upon Nota A Fine which was set two or three Terms since was this Term set aside because of some surreptitious Practice and Misinformation to the Judge Auberie versus James ASsault Battery and Wounding The Defendant Iustified for that he being Master of a Ship commanded the Plaintiff to do some Service in the Ship which he refusing to do he moderate castigavit the Plaintiff prout ei bene licuit The Plaintiff maintains his Declaration absque hoc quod moderate castigavit and Issue was taken thereupon Negativum infinitum After Verdict for the Plaintiff it was moved in Arrest of Judgment that the Issue was not well joyned for non moderate castigavit doth not necessarily imply that he did Beat him at all and so no direct Traverse to the Defendants Iustification which immoderate castigavit would have been But De injuria sua propria absque aliqua tali causa would have been the most formal Replication But the Justices held that it would serve as it was after a Verdict tho' the Statute at Oxford 16 Car. 2. the last and most aiding Act of Jeofails be * Which was a mistake expired and that de injuria sua propria not adding absque aliqua tali causa hath been held good after a Verdict Green versus Cubit ERror to Reverse a Judgment given in the Court at Norwich in Debt upon a Bond where the Plaintiff declared that the Defendant per scriptum suum Obligatorium at a certain place there became bound c. The Defendant pleaded that he was in Prison scriptum praedictum was obtained by Duress which was found against the Defendant and Judgment given accordingly The Errors assigned were first Because he declares of a Writing Obligatory and both not say sigillo Defendentis sigillat ' 3 Cro. 571. Declaration in Covenant was held Insufficient for the same cause Secondly There is no place where the Defendant alledgeth himself to be in Prison and being in an Inferiour Court it shall not have any aid of Intendment But the Court Over-ruled the first because the Plea of the Defendant confesses the Deed and the second because the Imprisonment must of necessity refer to the place where the Plaintiff declares the Bond to be made For the Defendant pleaded that he was then in Prison wherefore they affirmed the Judgment 3 Cro. 55. 2 Cro. 420. 3 Cro. 737. 19 H. 6. 15. 19. Baldway and Ouston DEbt upon a Bond the Condition was That the Defendant should pay such Costs as should be stated by two Arbitrators by them chosen He pleaded that none were Stated The Plaintiff Replied That the Defendant did not bring in his Bill To which it was Demurred For tho' if the Defendant were the cause that no Award was made it was as much a forfeiture of his Bond as not to perform
c. and in Replevin the Avowant is Actor and in Suffering of a Recovery the Tenant is the main Agent being to his use in no other be declared And it was an Error assigned in the Lord Newport and Mildmay's Case as appeareth by the Record yet it seems it was taken to be so plain as not fit to be insisted on Wherefore there is nothing of it in the Report of the Case 1 Cro. 224. yet there was all endeavour imaginable used to Reverse that Recovery and divers other Presidents there are of the same manner of Entry And if it can appear to the Court that there was a Guardian admitted the Form of the Entry shall not be so severely Examined as in the 4 Rep. 53. where there was no Entry of any Admission of the Guardian by the Court at all yet it appearing quod venit per Guardianum the Court would not Reverse the Judgment for Error And for the Book of the 2 Cro. 641. there were other Reasons which Reversed the Judgment and the Admission ad prosequendum was not mentioned until the Court upon the other Matters had Resolved the Reversal And the Books there cited do not at all prove it to be Error And ad sequend ' ur Guardianum is not at all amiss for Ut many times notes an Identity Seisitus ut de feodo makes Conusans ut Ballivus c. And for the Entry of the Appearance it may be taken that the Guardian came in proper Person and so it ought to be But if propria persona refers to the Infant he must have Reversed the Recovery during his Nonage And so Twisden saith it hath been resolved in this Court lately Vid. Roll's 1st Part 171 and 2d Part. 573. Anonymus SCroggs the King's Serjeant moved to have at Trial at Bar in an Indictment of Perjury and for some further Time urging that it was the King's Case The Chief Justice said The King was no otherwise concerned in it than in maintenance of the Common Justice of the Realm It was usually the Subjects Interest and His Prosecution and therefore must not deviate from the Course in Civil Causes and not to be resembled with Causes wherein the King is concerned in point of Interest Anonymus A Prohibition was prayed to stay a Suit for Tythes of Wood. The Plaintiff suggested That he had a House in the Parish and that the Wood was cut for Fuel burnt in his House But the Court said that this would not serve unless it were expressed that the House was for maintenance of Husbandry by reason of which the Parson had Uberiores Decimas Barrett versus Milward al. A Scire facias was awarded against the Defendants upon a Recognizance which they entred into as Bail for a Plaintiff in a Writ of Error that he should prosecute it with effect or pay the Money if the Judgment were affirmed They plead That he did prosecute it with effect and that the Judgment was not yet affirmed The Plaintiff Replied Protestando that they did not Prosecute with effect Pro placito that the Judgment was affirmed by the Justices of the Common Bench and Barons of the Coif Et hoc paratus est verificare per Recordum To which the Defendants Demurred generally Because it was not alledged That there were Six Justices and Barons present when the Judgment was affirmed For 27 Eliz. c. 8. which gives them Authority requires that there should be Six at the least Sed non allocatur For the Defendant should then have pleaded Nul tiel Record ' for if there were not Six their Proceedings were coram non Judice Nota If a Certiorari be not Returned so that an Alias be awarded the Return must be as upon the first Writ and the other must be Returned quod ante adventum istius brevis the Matter was certified Gybbons versus North. IN an Assumpsit the Plaintiff Declared That whereas at the Defendants Request he was bound with him in a Bond of 200 l he in Consideratione inde promised to save him harmless and obliged himself his Heirs and Executors in 200 l to the performance of it and the Money not being paid the Defendant did not save him harmless But per debitum legis processum he was forced to pay the Money The Defendant Demurred because he did not alledge That he did not pay him 200 l For obliging of himself in the penalty of 200 l to save him harmless He hath election either to save him harmless or pay 200 l But the Court gave Judgment for the Plaintiff for there is no Election in this case being no more than an ordinary Promise to Save harmless And this Action is brought upon the Plaintiffs Dampnification which is a Breach and he doth not demand the 200 l Also a Verbal Contract cannot create a Penalty to oblige the Heir Jordan versus Forett ERror to Reverse a Judgment given against an Executor in Debt in the Common Pleas where the Executor pleaded divers Judgments formerly obtained against him and the last he pleads thus That one Eliz. H. in eadem Curia implacitasset c. and Recovered in Trinity Term but expresses not in what Year and there upon a general Demurrer Iudgment was given for the Plaintiff and it was assigned for Error That this Incertainty in respect of Time was good at least upon a general Demurrer But the Court affirmed the Judgment For if such Pleading should be allowed it would be very inconvenient to the Plaintiff and very difficult to find out the Record and then how should he plead that it was kept on foot by Fraud or such like But if it had been ascertained when the Plea commenced tho' no time alledged when the Judgment was obtained yet that would have been good for the Continuances would have directed to the finding of it Twisden said That the Course in this Court was a in Scire facias upon a Judgment to say quod cum recuperasset without alledging any Time But in the Common Pleas they set forth the Term. Putt versus Vincent IN Debt for 3900 l the Plaintiff declared upon Articles of Agreement wherein Putt Covenanted to Convey certain Lands to one Nosworthy and there are also certain Covenants from Nosworthy to the Plaintiff and from the Defendant Vincent who after Imparlance pleads that Nosworthy sealed the Deed and is still alive To which the Plaintiff Demurred And it was alledged by Jones That this being after Imparlance could not be pleaded it being only in Abatement and that he Commences his Plea Actio non as if it were a Plea in Bar. And the Court inclined that it was insufficient for both Causes But then it was said It appears by the Deed to which Nosworthy was a party that the Plaintiff could not sue the Defendant alone and so of his own shewing he could not have Iudgment But it was answered That it did not appear that Nosworthy ever Sealed the Deed. Et Adjournatur Postra Gifford versus
is a continuing Body and no Member thereof can be displaced at the will of the rest but it is otherwise in Case of such an Office as this the Cases cited agree if it had béen a Common Council Man as was returned at first And here they said it were fit a Scire facias went out of Chancery to Repeal these Letters Patents as unreasonable If they had béen to chuse a Town Clerk generally it had béen for his life or if to chuse one provided they might turn him out at their Will and Pleasure yet they could not have done so without Cause as Twisden said But here the Authority is absolute to chuse him Durante bene placito which it was said was not so much to be admired at for the Offices of Judicature in the Courts at Westminster are so determinable Foot versus Berkley Pas 19 Car. 2. Rot. 1618. In a Writ of Error to Reverse a Judgment given in an Ejectione firmae in C. Banco The Case upon a Special Verdict was this The Prior of Bodmin was seized in Fee and 29 H. 8. demised to John Monday and others for 96 years at the Rent of 60 l per annum The Possessions of the Priory afterwards came to the Crown and descended to Queen Eliz. Who in the 42 year of her Reign granted to John Monday for 30 years Habendum after the end of the former Term under the same yearly Rent The Inheritance was afterwards conveyed to divers in Trust for the late Queen Mother who in 14 Car. 1. demised to Francis Godolphin in this manner reciting that Queen Eliz. in the 32 year of her Reign whereas it was the 42 demised to J.M. and did not recite for what Term to Commence after the Expiration of the Term for 96 years granted by the Priour reserving 60 l Rent did Demise to the said Francis for 21 years to Commence after the end of the Term granted by the said recited Letters Patents of Queen Eliz. They find no Lease made in the 32 year of the Queen c. Now whether Godolphins Lease should begin from the making which if it should it is for some year expired or to expect while the Lease made in 42 Eliz. should determin was the sole Question And by the Opinion of the Court of Common-Pleas Tyrrel only to the contrary It was adjudged That the Lease should Commence presently upon the making And a Writ of Error being brought after divers Arguments at Bar it was this Term argued by the Court And resolved that the Iudgment should be affirmed They held that every Lease for years must have a certain beginning and a certain end either expressed or referred to something which they make it so And here it is referred to a Lease whereas there is not any such Lease therefore it is to begin presently as if it had been to Commence from an impossible date Co. Litt. 46. B. A Lease made from the 30 of February shall Commence presently and it is the same thing when to begin from the end of a Lease misrecited for it is no more than to refer it to nothing Br. Leases 62. 1 Cro. 220. Miller and Johns Case Dier 116. 2 Roll 55. 4 Rep. 53. Palmers Case Bendlowes Rep. 35. 1 Anderson 3. Leonard Mounts Case And whereas it was objected in this Case That the Date is not material and that there was enough expressed to ascertain what Lease the Parties intended and the Case in Hob. 129. was cited Where one made a Lease Habendum à festo purificationis and then reciting by his Deed that he had made a Lease to Commence à festo Annuntiationis granted the said Reversion The Court held this there a good Grant It was answered That the Lease here was tied up by such precise words to begin upon the Determination of the Lease granted by the said recited Letters Patents that this cannot be referred to a Lease which varies in the Date though agreeing in other Circumstances yet the certainty of the Term is not recited neither And though a Lease is good without a Date yet when a Lease is recited to be of one Date a Lease which bears another Date cannot be said to be the said recited Lease And the Case in Hobart is very different from this Case for in the Grant of the Reversion the misrecital of the particular Estate is not material in the case of a common person so long as he hath a Reversion in him But here on Term is recited to give a certainty of Commencement to another and if here be none such it must begin presently so that however the Grant is good also here either to pass the Reversion with Attornment or being by Indenture to take effect upon the forfeiture c. of the former Term Pl. Com. 433. Twisden said Walter Chief Baron reported this Case to be adjudged where one made a Lease to begin from the Nativity of our Lord last past It was resolved it should begin presently and not from Christmas for that was the feast of the Nativity and to take it from the Nativity the time would have béen effluxed many times over and that in the Kings Case such a Lease would be void But here if the Case were thus that A. had made a Lease to B. for 30 years to Commence from the 1st of March and then A. reciting the former Lease to be made the 1st of May for 30 years had made another Lease to Commence from the end of B's Lease the Lease should have Commenced after the former ended But it cannot be so in the Case in Question Because tied up to the said recited Deed. Another Objection was Because this being by Indenture the Parties should be estopped to say that there was no such Lease and this was much insisted on by Serjeant Maynard in his Argument for the Plaintiff To which it was answered That this being by Recital could work no Estopel Again the Question is not now between the Parties to the Lease and though they and their Assignees might be bound in pleading yet being in a Special Verdict the Court shall judge according to the Truth And so is Isham and Morrice's Case 1 Cro. 77. And Rawlins Case 4 Rep. is between the Parties themselves So they all resolved that Iudgment should be affirmed The King versus Bates ERror to Reverse a Judgment given in an Information at the Assizes in Norwich because the Information was Exhibited before Justice Moreton and Justice Rainsford and the Trial and Judgment was at the next Assizes before two other Judges And it was Objected by Pemberton That their Commission of Oyer and Terminer doth not empower them to determine any thing which was not Commenced before them and so is Bro. tit Commission 24. And in the 4th Inst my Lord Coke saith that the Statute of Edward the 6th extends only to Justices of Gaol-delivery sed non allocatur For the Court said the Statute extends to hath and so hath been the
distress upon a Copyholder for a reasonable Fine the value of the Land must be set forth and the certainty of the Fine that the Court may judge of it Austin and Gervases Case Hob. 69 77. In Consideration that he should give him Bond for 10 l the Defendant promised c. and pleads that he offered him Bond for the said sum c. and upon Issue Non Assumpsit it was found for the Plaintiff But he could not have Iudgment because the sum wherein he offered to become bound was not exprest so that it might appear to the Court to be sufficient Jones contra This differs from the Case in Hob. for there the sum being certain for which the Bond was to be given the Court may well judge what Penalty will secure it But it is not so in this Case for it doth not appear to what value the damnification may be so there is nothing as in the other Case whereunto to Proportion the Penalty of the Bond. The Court held that it would not have been good upon a Demurrer but being after a Verdict and the Statute of Jeofails made at Oxford which Twisden stiled an omnipotent Act they gave Iudgment for the Plaintiff Lord Birons Case THe Lord Biron was Plaintiff in an Action and upon a Non-Suit five pounds Costs were taxed against him and he brought another Action for the same matter which was said to be meerly for vexation and that he refused to pay the Costs neither could he be compelled being a Peer and in Parliament time Wherefore the Court gave day to shew Cause why this Action should not stay until he had paid the Costs in the former Anonymus IF a Writ of Error be brought in the Exchequer Chamber and that being discontinued another is brought in Parliament this second Writ is a Supersedeas But if a Writ of Error be brought in Parliament and that abates and the Plaintiff brings a second this is no Supersedeas because it is in the same Court Prior versus Shears IN a Writ of Error to Reverse a Judgment given in the Palace Court in an Assumpsit where the Plaintiff declared sur indebitatus pro Naulo and upon Non Assumpsit c. had Judgment It was assigned for Error That it was not ascertained how the Defendant was indebted and that Fraight was usually contracted for by Charter party and if so the general Indebitatus would not lie for a Debt by Specialty Notwithstanding the Judgment was affirmed for for ought appears there was not any Deed in the Case and it shall not be intended and it is no more than the Common Action pro mercimoniis habitis venditis Note It was further objected That this appears to be for Marriners Wages for Sailing to some Foreign parts which must needs be out of the Jurisdiction of the Marshalsea and though the Argréement were made within it yet the thing being to be done elsewhere they could not hold Plea As if a Carrier should agree within the Limits of the Court to carry Goods from thence to York no Action could be brought there upon it which was agréed But the Court said here It doth not appear they were to Sail to any place out of the Jurisdiction and they have laid all the Matter to be infra Jurisdictionem Curiae And therefore the Judgment was Affirmed Hayman versus Trewant TRin. 22 Car. 2. Rot. 710. In an Action upon the Case for that the Defendant bargained with him such a day and year for the Corn growing upon such Ground affirming it to be his own whereas he knew it to be the Corn of J. S. and postea adtunc ibid. fraudulenter vendidit Warrant ' c. The Defendant pleads That the Plaintiff had another such Action depending for the same Cause and demands Iudgment of the Writ The Plaintiff Replies that that Action was commenced for another Cause and not for the same absque hoc that it was for the same Cause To which the Defendant Demurs specially because the Plaintiff having denied what the Defendant affirmed ought not to have added a Traverse but to have concluded to the Country As the Case of Harris and Phillips 3 Cro. 755. was Adjudged Where in an Audita Querela to avoid the Execution of a Recognizance the Plaintiff sets forth that it was defeazanced upon payment of divers Sums of Money at certain days and that he was at the place appointed and tendred the Money and that the Defendant was not there to receive it The Defendant pleaded Protestando that the Plaintiff was not there to pay it and that he was there ready to receive it absque hoc that the Plaintiff was ready to pay it Which being specially Demurred to the Court held the Plea naught and that there being an express Affirmative and Negative there should have been no Traverse for so they may traverse one upon another in infinitum Notwithstanding the Traverse was here held good which was allowed for putting the Matter more singly in Issue And it appears that Phillips's Case was Adjudged upon another matter For that the Plea in Bar was not entred as the Defendant's Plea but was entred thus Pro placito Bush a Stranger dicit Yelv. 38. Then it was moved That as the Plaintiff hath declared here it appears that the Warranty was subsequent to the Bargain For it is said that he bargained for the Corn knowing it to be the Corn of J.S. postea adtunc ibidem vendidit which is repugnant Sed non allocatur for where it is said first That he bargained that shall intended a Communication only and the Consummation of it after when the Warranty was given which is also said to be adtunc ibidem So alledged well enough Foxwith versus Tremaine TRin. 21 Car. 2. Rot. 1512. Five Executors bring an Action sur Indebitat ' Assumps The Defendant pleads in Abatement That two of them are under the Age of 17. and that they appeared by Attorney And to this the Plaintiffs Demur They who Argued for the Defendant made two Questions 1. Whether they ought all to joyn in the Action And it was said they ought not for one under Age cannot prove the Will And in Smyth and Smyth's Case Yelv. 130. it is Resolved they must be all Named so that their Interest may be reserved unto them but are not to be made parties to the Action And for this the Case between Hatton and Mascue which was Adjudged in the Exchequer Chamber was cited Where in a Scire facias it was set forth That A. being the Executor of B. made his Will thus I Devise all my Personal Estate to my two Daughters and my Wife whom I make my Executrix And that they had Declared in the Ecclesiastical Court that this made them all three Executrixes and that the Will was proved and that the Wife brought this Scire facias to have Execution of a Judgment obtained by A. the Testator And the Defendant Demurred because not
is where it is imposed for such things as are of common Right incident to its Jurisdiction as for Contempts or the like Yet where Custom only enables them to set a Fine it cannot be Distrained for without Custom also 11 Co. Godfrey's Case And to this Opinion did the Court incline Sed Adjornatur Anonymus TWo Actions of Account were removed into this Court by Habeas Corpus and Special Bail put in And it was moved that the Bail might be discharged and Common Bail filed because in an Account Special Bail is not to be put in But it was said the Plaintiff had declared in one in an Action upon the Case and so prayed that the Bail might stand quoad that But it was Ruled That the Bail should be discharged and if the Plaintiff would have Special Bail he must Arrest the Defendant again in an Action upon the Case Doctor Lee's Case DOctor Lee having Lands within the Level was made an Expenditor by the Commissioners of Sewers whereupon he prayed his Writ of Priviledge in this Court and it was granted For the Register is Vir militans Deo non implicetur saecularibus negotiis and the ancient Law is Quod Clerici non ponantur in Officia F.N.B. Clergy-men are not to serve in the Wars Jemey versus Norris ERror to Reverse a Judgment in an Assumpsit upon a Quantum meruit for divers things sold It was assigned for Error that the Declaration amongst the rest was for unum par Chirothecarum and did not express what sort of Gloves they were which are of much different prices according to the different Leather they are made of And Playter's Case 5 Co. was cited where Trespass for taking of his Fishes was held not good because not ascertainedb of what kind Sed non allocatur Another of the things declared for was una parcella fili which as it was said was utterly uncertain and that was held to be naught Tho' it was said an Action was brought for taking away unum cumulum Foeni Anglicè a Rick of Hay and not alledged how much it contained yet held good But in Webb and Washburn's Case an Action was brought for a pair of Hangings and it was Adjudged against the Plaintiff for the Incertainty Jones contra and cited a Case in this Court 24 Car. 1. Green and Green in Trover for six parcels of Lead and notwithstanding the Incertainty the Plaintiff had Judgment So in Trover for a Trunk de diversis Vestimentis and did not say what Garments and yet held good But admitting it should not be good in Trover yet it is well in this Action 'T is the Common course to declare sur Indebitatus pro mercimoniis and never express what they are And the Court were of Opinion that the Plaintiff was to have Judgment for it is an Action much of the same nature with an Indebitatus And Twisden said Where the Promise is to pay Quantum meruit he knew not why the Plaintiff might not declare upon an Indebitatus in a certain Sum and that he might prove the value upon the Evidence and if such a Case came to be tried before him he would have a Special Verdict found in it The Court said Such an uncertain Declaration would hardly be good in Trover or Replevin and held the Case of the six Parcels to be strange and for the Trunk that an Action lies for that the things contained in it were alledged but as matter of aggravation of Damages Vid. the Case of Taylour and Wells ante Trover de decem paribus velorum tegularum Anglicè Ten pair of Curtains and Vallance Wilson versus Armorer IN Debt against the Heir and Reins per discent pleaded the Case upon Special Verdict was thus The Ancestor made a Feoffment of a Mannor to divers uses excepting two Closes for the Life of the Feoffor only and whether those two Closes did discend was the Point referred to the Iudgment of the Court. And it was Adjudged That they did discend either for that the Exception was good tho' the latter part of the Sentence viz. for the Life of the Feoffor only was void and therefore to be rejected or if the whole Exception were void because one intire Sentence Yet they all agreed that there was no Vse limited of those two Closes which were intended to be excepted for the Vse was limited of the Mannor exceptis praeexceptis which excluded the two Acres For altho' there were not sufficient words to except them yet there was enough to declare the intention of the Feoffor to be so Anonymus AN Indictment for Erecting of a Cottage for Habitation contra Statut ' 31 Eliz. cap. 7. was quashed because it was not said that any had inhabited in it for 't is no Offence before per Rainsford Moreton caeteris absentibus Termino Sancti Hillarij Anno 22 23 Car. II. In Banco Regis Robson's Case A Prohibition was prayed to a Suit for Tythes by the Parson upon a Suggestion of a Modus paid to the Vicar and that the Vicaridge had time out of mind been Endowed Coleman moved for a Consultation because the Endowment of the Vicaridge was not proved by two Witnesses within six Months according to the Statute But it was denyed for that part of the Suggestion is not to be proved by Witnesses but only the payment of the Modus And it was said If the Suggestion consisted of two parts it was sufficient to produce one Witness to the one and another to the other Dacon's Case DAcon was presented in the Court Leet for refusing the Office of Constable and Fined It was moved to quash it because it expressed the Court to be held infra unum mensem Sancti Michael ' viz. 12 November and so the Day shewn above a Month after Michaelmas And it is necessary to set down the precise Day for it may else be upon a Sunday and yet within a Month after Michaelmas and for this cause the Court held that it must be quashed Error AN Outlawry was Reversed for that the Proclamations were Returned to be ad comitat ' meum tent ' apud such a place in Com' praedict ' and not said pro Comitatu For anciently one Sheriff had two or three Counties and might hold the Court in one County for another Calthorpe versus .... IN Debt for Rent the Plaintiff declared that he let the Defendant such Land anno 16 of the King quamdiu ambabus partibus placeret and that anno 16 the Defendant entred and occupied it pro uno anno tunc proximê sequent ' and because the Rent was behind pro praedict ' anno finit ' 18 he brought the Action Vpon which it was Demurred Because the Rent is demanded for the Year ending 18 and it is not shewn that the Defendant enjoyed the Land longer than anno 17. And in Debt for Rent upon a Lease at Will Occupation of the Tenant must be averred To which it was Answered That it is said
not to be removed out of Corporation Courts where they are held before an Utter Barrister so that 't is far better for the Corporation to have such an one their Recorder Twisden said The case of Bernardiston differed besides that he apprehended he had much of the favour of the times in it for he that was tried before him for having two Wives was arraigned before him not as Recorder of Colchester but as a Commissioner of the Gaol delivery neither was it returned That he was Summoned which was said not to be material because they could not have examined the matter It was returned also That he absented himself for nine Months but not set forth that any Court was held during that time or any occasion for it He said That Cholmley Recorder of Lincoln was turned out of his place for trying the Accessory before the Principal and altho' there be no Special Fact returned here yet it may be tried in an Action upon the Case The Court said They would look upon Bernardistons Case Et Adjornatur Anonymus A Prohibition shall not go to the Admiralty to stay a Suit there for Mariners Wages tho' the Contract were upon the Land For First It is more convenient for them to sue there because they may all joyn Again according to their Law if the Ship perish by the Mariners default they are to lose their Wages therefore in this special Case the Suit shall be suffred to proceed there Dier versus East WHere by the Statute of Ed. 6. It is ordained That striking in the Church-yard shall be Excommunication Ipso facto this tho' it takes away the necessity of any Sentence of Excommunication yet he that Strikes doth not stand Excommunicated until he be thereof convicted at Law and this transmitted to the Ordinary Theodore Morris's Case HE was indicted of Murther in Denbigh and obtained a Certiorari to remove it into this Court in order to have it tryed in an adjacent English County And it was moved whether by Law it might be The Statute of 26 H. 8. cap. 6. empowers the next English County to take Indictments of Treasons and Felonies committed in Wales and to try them but here the Indictment was taken in a Welsh County Herbets Case in Latch was cited who was indicted at Montgomery and tryed at Salop and Plowden Matters del corone avenants a Salop and Southley and Prices Case 3 Cro. is That the Statute doth not extend to a Tryal upon an Appeal In Chedleys Case a Certiorari was granted as here to remove an Indictment found in Anglesy which was afterwards tryed in the next English County 3 Cro. 331. And the Court held that so it might be here Large versus Cheshire HIll 22. and 23 Car. 2. Rot. 520. In Covenant the Plaintiff declared upon Articles of Agreement between him and the Defendant whereby the Defendant covenanted to pay him such a Sum the Plaintiff making to him a sufficient Estate in such Lands before the Feast of St. Thomas next ensuing the date of the Deed and then he saith that licet he the Plaintiff semper a tempore confectionis scripti paratus suit ad performand ' all the Agreements of his part usque ad diem Exhibitionis bille the Defendant had not paid the Money The Defendant pleaded quod ipse obtulit solvere the Money aforesaid apud Derby si le Plaintiff faceret ei bonum sufficient ' Statum de in Premissis c. The Plaintiff replied Protestando That the Defendant did not offer the Money pro placito that he the 21 of Decemb. apud Derby fecit sigillavit quandam Chartam Feoffamenti whereby he conveyed the Premisses to the Defendant and that he came to the Premisses an hour before Sun-set the same day paratus ad deliberand ' seisinam c. quod Desendens nec aliquis ex parte illius venit ad recipiend ' c. to which the Defendant demurred and adjudged for him It was held That these words ipso faciente bonum statum were a Condition precedent to the payment of the Money therefore the Plaintiff in his Declaration should have averred the performance of it particularly and not by such general words that he had done all on his part And it differs from the Case where in Assumpsit the Plaintiff declared That the Defendant in Consideration the Plaintiff should permit him to enjoy such Land for seven years that he would pay him pro quolibet anno 20 s and the Action was held well brought within the seven years for that it was Executory contract for every of the years according to the intention of the Parties It was resolved also That the Replication was insufficient for that the Plaintiff having Election to make what Conveyance he pleaded he ought to have given notice to the Defendant that he would execute this Charter of Feoffment by Livery for it might have béen by Enrollment But Hale said The time when in this Case was not necessary to be in the notice because the Charter was sealed and delivered upon the extream day limited by the Agreement so the Defendant knew it must be upon that day so for the place because it is a local thing and must be done upon the Land But because he had set forth no notice given to the Defendant that he would make Livery the Replication is insufficient as if a Man be bound to Levy a Fine he must shew whether he will do it in Court or by Dedimus and the Court said if the Defendant had refused to accept of Livery the Plaintiff might as well have brought the Action as if he had actually made it Sacheverel versus Frogate IN Covenant the Plaintiff declares That Jacinth Sacheverel was seized in Fee and demised to the Defendant certain Lands for 21 years rendring to him his Executors Administrators and Assigns 120 l Annually during the Term By force of which Lease the Defendant entred and that J. S. Devised the Reversion to the Plaintiff and died and for Non-payment of Rent accrued since his Death he brought the Action and to this Declaration the Defendant demurred And it was argued by Winnington That the Rent determined by the Death of the Lessor as where the Lessor reserves the Rent only to himself 1 E. 4. 18. 27 H. 8. 19. Dier 45. Com. 171. the Heir shall not have it for reservations are taken strongliest against the Lessor so where the reservation is to the Lessor his Executors and Assigns it continues but for his Life Co. Lit. 47. a. 'T is true Here is also added Durante Termino and in Mallories Case 5 Co. where the reservation was to the Abbot or his Successors during the Term it went to the Successor but that was because they expounded or as a Conjunctive for if Successor had béen left out I suppose it would have been resolved otherwise Richmond and Butchers Case 1 Cro. 217. is in point that the Heir shall not have it So 2 Rolls 451.
Chancery that where there is a Chancellor time out of mind a Court of Equity follows of consequence 4 Inst 212. It is said that the Chamberlain of Chester hath the Jurisdiction of a Chancellor within the County Palatine of Chester as the Chancellor of the Dutchy of Lancaster hath lawfully used and executed within the County Palatine of Lancaster Hale Chief Justice The County Palatine of Lancaster is by Act of Parliament and therefore Outlawry there is a good Plea in disability but an Outlawry in Chester is not pleadable here for that is a County Palatine by Prescription The Possessions of the Duke of Lancaster were not made a Ducatus until 2 H. 5. in the Parliament Roll for that year 't is entred Quod sigilla pro Ducatu Lancastriae allocentur and that it should be governed per Ministros Ducatus By the Parliament Roll 39 H. 6. amongst the Tower Records it appears that there was appointed a Chancellor of the Dutchy an Attorney Auditor a Steward and a General Receiver also a Chancellor and the like Officers for the County Palatine So that before the Statute of 1 Ed. 4. there was a Chancellor of the Dutchy I do not think the hare granting of a Chancellor will incidently give a Court of Equity nor is such a Court incident to a County Palatine tho' there is a general grant of Jura regalia but the main matter is upon the Statute of the 1 Ed. 4. which Enacts That the County of Lancaster be a County Palatine which perhaps would have otherwise determined by the Attainder and that it be parcel of the Dutchy and that there be Officers and Councellors for the guiding of the same Dutchy and of the particular Officers Ministers and Tenants and Inhabitants thereof in as great ample and large Form as Henry calling himself King Henry the 5 at any time herein had used and enjoyed lawfully and further That in the same Dutchy be used had and occupied all such Freedoms Liberties Franchises Priviledges Customs and Jurisdictions as were used therein lawfully These words would not of themselves give a Court of Equity but are relative to what was formerly and the Presidents that have been produced are an Evidence that there was such a Jurisdiction exercised before this Act which is confirmed and established by it We have no full account of its original but there are such Prints and Footsteps of it that we must presume it lawful or otherwise 't is not to be thought that the Act should refer to it Holts Case agrees that they have a Court of Equity and so as 't is reported in Rolls tho' there is a mistake in the Report where 't is said that the Dutchy have no Iurisdiction of such Lands as lye out of the County Palatine tho' holden of the King but possibly they may extend their Iurisdiction too far when they retain Bills concerning Lands lying out of the County Palatine within the precinct of the Dutchy but not holden But that matter is not now in question I think no Prohibition ought to go in this Case First Because the Statute of the 1 Ed. 4. makes the County Palatine parcel of the Dutchy Secondly For that the Statute refers to the Iurisdiction formerly exercised and appoints the Tenants and Inhabitants of the Dutchy to be under the same Regulation And for that there are such multitude of Presidents of Proceedings in this nature and allowing transmission of Causes yields them a Iurisdiction for the space of 200 years and so many Mens Estates depend upon their Decrees which have been made with the assistance of so many Learned Iudges which at all times have béen called to assist in this Court that it would be very unreasonable and inconvenient to unsettle them Vpon a Quo Warranto the matter might be more strictly examined than it is fit to do upon a Prohibition And Twisden and Rainsford concurred That no Prohibition ought to go It was then objected That this Bill was not well exhibited for it was directed Cancellario only whereas the Court is holden coram Cancellario Concilio Hale said That would not be material for in Ed. 1. time the Stile of the Kings Bench was coram Rege Concilio and the Writ de Ideota examinando commands the Ideor to be brought coram nobis Concilio nostro apud Westmon ' and anciently Bills were so directed in Chancery but since have been altered Maddys Case JOhn Maddy was indicted for that he ex malitia sua praecogitat ' felonice murdravit Franc ' Mavers upon which he was arraigned at the Assizes in Southwark and pleaded Not guilty and the Jury found a Special Verdict by the direction of Justice Twisden then Judge of Assize there which was to this effect That Maddy coming into his House found Mavers in the act of Adultery with his the said Maddys Wife and he immediately took up a Stool and struck Mavers on the Head so that he instantly died They found that Maddy had no precedent malice towards him and so left it to the Iudgment of the Court whether this were Murder or Manslaughter The Record was this Term removed into the Kings Bench by Certiorari and Maddy brought by Habeas Corpus And the Court were all of Opinion that it was but Manslaughter the provocation being exceeding great and found that there was no precedent Malice and it was taken to be a much stronger Case than Royley's Case 2 Cro. 296. Where the Son of Royley coming home with a Bloody Nose and telling his Father that such an one beat him in such a Field to which Field which was a mile off the Father immediately run and found him that had beat his Son there and killed him all which was found upon a Special Verdict and resolved to be but Manslaughter But Twisden said there was a Case found before Justice Jones which was the same with this only it was found that the Prisoner being informed of the Adulterers familiarity with his Wife said he would be revenged of him and after finding him in the Act killed him which was held by Jones to be Murder Which the Court said might be so by reason of the former declaration of his intent but no such thing is found in the present Case Barber versus Fox TRrin 22 Car. 2. Rot. 855. In an Assumpsit the Plaintiff declared That the Ancester of the Defendant became bounden to him in a certain Sum and afterwards died and that he demanded it of the Defendant being his Heir and the Defendant in consideration that the Plaintiff would forbear to Sue him for such a time promised he would pay him To this the Defendant pleaded Non Assumpsit and a Verdict was found for the Plaintiff It was moved in Arrest of Judgment for that at the time of the Promise there doth not appear that there was any cause of Suit agaist the Heir for 't is not set forth that the Ancester did bind his Heirs and the Consideration is not
here to forbear to Sue generally but to stay a Suit against the Defendant whom he could not Sue To which it was answered That after a Verdict it shall be intended there was cause of Suit as Hob. 216. Bidwell and Cattons Case And Attorney brought an Assumpsit upon a Promise made to him in Consideration that he would stay the Prosecution of an Attachment of Priviledge and there held that it need not appear that there was cause of Suit for the Promise argues it and it will be presumed And here 't is a strong intendment that the Bond was made in Common Form which binds the Heirs But Iudgment was given against the Plaintiff for the Court said it might be intended that there was cause of Action if the contrary did not appear which it doth in this Case for the Bond cannot be intended otherwise than the Plaintiff himself hath expressed it which shews only that the Ancestor was bound And whereas it was said by the Plaintiff's Counsel that this would attaint the Jury they finding Assumpsit upon a void Promise Hale said there was no colour for that conceit The Plaintiff having proved his Promise and Consideration as 't was laid in the Declaration which is the only thing within their charge upon Non Assumpsit modo forma Bulmer versus Charles Pawlet Lord Saint John IN an Ejectment upon a Tryal at Bar this question arose upon the Evidence Tenant for Life Remainder in Tail to J. S. joyn in a Fine J.S. dies without Issue whether the Conusee should hold the Land for the Life of the Tenant for Life Serjeant Ellis pressed to have it found Specialy tho' it is resolved in Bredons Case that the Estate of the Conusee shall have Continuance but he said it was a strange Estate that should be both a Determinable Fee and an Estate pur auter vie and he cited 3 Cro. 285. Major and Talbots Case where in Covenant the Plaintiff sets forth that a Feme Tenant for Life Remainder in Fee to her Husband made a Lease to the Defendant for years wherein the Defendant covenanted with the Lessors their Heirs and Assigns to repair and they conveyed the Reversion to the Plaintiff and for default of Reparations the Plaintiff brought his Action as Assignee to the Husband And resolved to be well brought because the Wives Estate passed as drowned in the Fee The Court said Bredons Case was full in the point but the Reason there given Hale said made against the Resolution for 't is said that the Remainder in Tail passes first which if it does the Freehold must go by way of Surrender and so down but they shall rather be construed to pass insimul uno flatu Hob. 277 In Englishes Case it was resolved it Tenant for Life Remainder in Tail to an Infant joyn in a Fine if the Infant after Reverse the Fine yet the Conusee shall hold it for the Life of the Conusor 1 Co. in Bredons Case and he resembled it to the Case in 1 Inst a Man seized in the right of his Wife and entituled to be Tenant by the curtesie joyns in a Feoffment with his Wife the Heir of his Wife shall not avoid this during the Husbands Life Nevertheless he told Ellis That he would never deny a Special Verdict at the request of a Learned Man but it appearing that he Plaintiff had a good Title after the Life should fall the Defendant bought it of him and the Jury were discharged Sacheverel versus Frogate PAs 23 Car. 2. Rot. 590. In Covenant the Plaintiff declared That Jacinth Sacheverel seized in Fee demised to the Defendant certain Land for years reserving 120 l Rent And therein was a Covenant that the Defendant should yearly and every year during the said Term pay unto the Lessor his Executors Administrators and Assigns the said Rent and sets forth how that the Lessor devised the Reversion to the Plaintiff an for 120 l Rent since his decease he brought the Action The Defendant demanded Oyer of the Indenture wherein the Reservation of the Rent was yearly during the Term to the Lessor his Executors Administrators and Assigns and after a Covenant prout the Plaintiff declared and to this the Defendant demurred It was twice argued at the Bar and was now set down for the Resolution of the Court which Hale delivered with the Reasons He said they were all of Opinion for the Plaintiff For what interest a Man hath he hath it in a double capacity either as a Chattel and so transmissible to the Executors and Administrators or as an Inheritance and so in capacity of transmitting it to his Heir Then if Tenant in Fee makes a Lease and reserves the Rent to him and his Executors the Rent cannot go to them for there is no Testamentary Estate On the other side if Lessee for a 100 years should make a Lease for 40 years reserving Rent to him and his Heirs that would be void to the Heir Now a Reservation is but a Return of somewhat back in Retribution of what passes and therefore must be carried over to the Party which should have succeeded in the Estate if no Lease had béen made and that has béen always held where the Reservation is general So tho' it doth not properly create a Fee yet 't is a descendible Estate because it comes in lieu of what would have descended therefore Constructions of Reservations have been ever according to the Reason and Equity of the thing If two Joynt-teants make a Lease and reserve the Rent to one of them this is a good to both unless the Lease be by Indenture because of the Estoppel which is not in our Case for the Executors are Strangers to the Deed. 'T is true if A. and B. joyn in a Lease of Land wherein A. hath nothing reserving the Rent to A. by Indenture this is good by Estoppel to A. But in the Earl of Clare's Case it was resolved That where he and his Wife made a Lease reserving a Rent to himself and his Wife and his Heirs that he might bring Debt for the Rent and declare as of a Lease made by himself alone and the Reservation to himself for being in the Case of a Feme Covert there could be no Estoppel altho' she signed and sealed the Lease There was an Indenture of Demise from two Joynt tenants reserving 20 l Rent to them both one only sealed and delivered the Deed and he brought Debt for the Rent and declared of a Demise of the Moiety and a Reservation of 10 l Rent to him And resolved that he might Between Bond and Cartwright which see before and in the Common Pleas Pas 40. Eliz. Tenant in Tail made a Lease reserving a Rent to him and his Heirs It was resolved a good Lease to bind the Entail for the Rent shall go to the Heir in Tail along with the Reversion tho' the Reservation were to the Heirs generally For the Law uses all industry imaginable to conform
against the rest which therefore was not affected by the Error The fourth was overruled for where the Party is present the Iudgment is always quod committitur as appeared by the Presidents Fifthly the Variances from the Statute were not held to be material for in Old writings 't is written Sea of Rome and declaring in Conscience and in my Conscience are the same The sixth Error was also disallowed for the words of the Statute are shall incur the danger and penalty of Praemunire mentioned in 16 R. 2. which doth not necessarily bind up to the Process Vid. 16 R. 2. 5. which makes this very clear but means that such Iudgment and Forfeiture shall be and it appearing that the Parties were present there was no need of any Process But as to the third Exception which was taken to the Venire they said they would be advised until the next Term and they told the Prisoners who were Quakers and had brought a Paper which they said contained their acknowledgment of the Kings Authority and Profession to submit to his Government and that they had no exception to the matter contained in the Oath but to the Circumstance only and that they durst not take an Oath in any Cause which they prayed might be read but it could not be permitted that their best course were to supplicate his Majesty in the mean time for his Gracious Pardon Radly and Delbow versus Eglesfield and Whital IN an Action sur 13 R. 2. cap. 5. 2. H. 4. cap. 11. for suing the Plaintiff in the Admiralty for a Ship called the Malmoise pretending she was taken piratice whereas the Plaintiff bought her infra corpus Com. It seems there was a Sentence of Adjudication of her to be lawful Prize in Scotland in April 1667. as having carried bellicos apparatus i.e. Contraband Goods in the late Dutch War and the Plaintiff bought her here under that Title The Libel was That the Ship belonged to the Defendants and about January 1665 was laden with Masts c. and had Letters of safe conduct from the Duke of York to protect her from Concussion c. and that certain Scottish Privateers did practise to take the said Ship and after the Defendants took her and being requested refused to deliver her and that ratione lucri cessantis damni emergentis they suffred so much loss c. The Defendants pleaded Not guilty to this Action and upon the Tryal would not examin any Witnesses but prayed the Opinion of the Court who said there was good Cause upon the Libel which now they must take to be true in the first instance for the Admiralty to proceed In 43 Eliz. it was resolved 1 Cro. 685. Yelv. 125. Sty 418. If Goods are taken by Pirates on the Sea tho' they are sold afterwards at Land yet the Admiralty had Conusans thereof for that which is incident to the original matter shall not take away the Iurisdiction and that is Law tho' there were another Resolution in Bingleys Case 1 Rolls 531 Hob. 78. 3 Jac. 7 Ed. 4. 14. and 22. Ed. 4. If Goods are taken by an Enemy and retaken by an Englishman the property is changed Otherwise if by Pirates And if in this Case the taking were not Piraticè it ought to have béen alledged on the other side Had the Sentence in Scotland béen pleaded in the Admiralty the Court would have given deference to it as if a Man had a Judgment in Communi Banco and should begin a Suit for the same in Banco Regis This might be made a good Plea to the Suit but not to the Iurisdiction for for ought appeared this might have been the first Prosecution and no Proceedings might have béen in Scotland This came to be tryed at the Nisi prius before Hales who was of the Opinion ut supra then But because it was a cause of weight he ordered it to be tryed at the Bar. And because 't was for his satisfaction and for a full Resolution the Jury was paid between the Parties Note A Proctour sworn a Witness said when this Cause was in the Admiralty there was a provisionate Decree as they call it or primum Decretum which is a Decree of the Possession of the Ship and upon that an Appeal to the Delegates but my Lord Keeper being informed that no Appeal to them lay upon it because it was but an interlocutory Decree upon hearing of Counsel he superseded the Commission When a Ship is so seized upon security given 't is the course of the Admiralty to suffer her to be hired out Watkins versus Edwards PAsch 22 Car. 2. Rot. 408. An Action of Covenant was brought by an Infant per Guardianum suum for that he being bound Apprentice to the Defendant by Indenture c. the Defendant did not keep 5 Eliz. c. 4. maintain educate and teach him to his Trade of a Draper as he ought but turned him away The Defendant pleads That he was a Citizen and Freeman of Bristol and that at the General Sessions of the Peace there there was an Order made that he should be discharged of the Plaintiff for his disorderly living and beating of his Master and Mistress and that this Order was Enrolled by the Clerk of the Peace as it ought to be c. To this the Plaintiff Demurrs The First question was Whether the Statute extends to all Apprentices or only such as are imposed upon their Master by the Justicies and compellable to serve And Hale and Moreton inclined That it did not extend to all Apprentices Twisden and Rainford contrary Secondly Whether they had power to discharge the Master of his Apprentice as they might è Converso Hale conceived they could not But cause the Servant to have due Correction in case the Master complained of him Twisden Rainsford and Moreton Contra. Hankworthy's Case For he may be so incorrigible that the Master cannot keep him without standing in continual fear and in Mich. 21 and Hill 2. 22 Regis nunc upon the removal of an Order of Sessions from York it was resolved That the Master might be eased of his Apprenetice by the Sessions upon just cause And Twisden said Shelton Clerk of the Peace for Middlesex informed him that such Orders are frequently made Thirdly The great question was whether the Defendant ought not to have applied himself to one Justice first as the Statute directs that he he might if he could have settled the business and if not then to go to the Sessions and not to go thither per saltum as upon the Statute of the 18 Eliz. cap. 3. The Sessions cannot make an Order for keeping of a Bastard but upon an Appeal from the two Justices which are first to make an Order Hale This case differs for the 18 Eliz. gives the first Men power to make an Order which shall bind the Parties until it is avoided by Appeal but this Statute of 5 Eliz. gives no Iurisdiction to
c. adjudged the paying the 10 l was a Condition precedent 5 or 15 H. 7. 10. is our Case in Point if the Plaintiff had alledged that he had offered to work and the Defendant had hindred him it had been good The want of the Averment is not helped by the Verdict for 32 H. 8. extends not to Declarations or Avowry's but only to Pleading if otherwise there had béen no need of 21 Jac. cap. 13. to cure the want of averring the Parties Life Twisden Contra. There is no need of the Averrment there being Reciprocal promises upon which the Parties have mutual remedies and relyed upon the case 1 Roll. 46. Rainsford agreed with Hale Et Ajornatur Termino Sancti Hillarij Anno 23 24 Car. II. In Banco Regis Harwoods Case HE was committed to Newgate by the Court of Orphans and upon an Habeas Corpus it was returned That the City of London is an ancient City and that time out of mind the Mayor and Aldermen have had the custody of Orphans within the City until the Age of 21 or Marriage and that there hath been time out of mind a Court of Record called the Court of Orphans holden before them having Conusance of all matters concerning Orphans and that they had power to give Licence to Marry a Woman which was their Orphan or to deny it upon reasonable cause and if any one did Marry such Orphan without Licence first had from the said Court that they might impose a reasonable Fine upon him and if he should refuse to pay it or to give Security to commit him to Prison It was also returned That Harwood did Marry such an Orphan without Licence first obtained whereupon he being present in Court they fined him 40 l and he refusing to pay it or give Security was committed To this return First it was objected That this Custom shall not bind Strangers in 1 Cro. 689. Deanes Case who was imprisoned for refusing to find Sureties for the Good Behaviour which was demanded of him because he called an Alderman Fool. It was returned That if a Freeman commit such an Offence c. So in Andrews Case in Hutton 30. one was Imprisoned for not giving Security for the payment of a Legacy devised by his Testator to an Orphan he is returned to be a Freeman Secondly This Custom as returned is unreasonable for it would oblige Strangers at what distance soever from London who cannot take notice who are Orphans of the City yet they should incur a penalty by Marrying them without leave from the City and they have not returned that Harwood Married the Orphan within the City and therefore it must be intended that he did not and in all other Points most advantagiously for him in regard he cannot shew the truth of his Case by pleading to the Return In an Action upon the Statute of Labourers the Plaintiff declared That he retained a Servant at London and that the Defendant retained him within the Term he had contracted with him for The Defendant pleaded that he found him vagrant in another County and there retained him and held that it was a good plea for he was not bound to take notice of a retenier by the Plaintiff when it was in another County 17 E. 4. 7. b. The difference is taken between Customs general such as Gavelkind and private particular Customs the one everyone shall take notice of but not the other 3 Cro. Launder and Brooks Case The Court of Orphans is a particular Iurisdiction and not to be extended all over England and it appears by the Books that they may have a Ravishment of Ward F.N. B. 142 B. Hob. 95. which therefore seems to be their proper remedy rather than the course they have now taken Thirdly The Custom is unreasonable that they should impose the Fine who are to have it and so to be Iudges and Parties Fourthly It was alledged That the Fine was unreasonable which is not to be proportioned to the Portion the Orphan is to have which was shewn in the Return to be 800 l but to the crime for it doth not appear that the City is to have the value of the Marriage or any benefit by it and in this Case there was no disparagement for his quality deserved such a Portion and he had the consent of her Friends But notwithstanding these Exceptions to the Return it was resolved by all the Court that he should be remanded As to the 1 that it is not returned Harwood is a Freeman the Court resolved that it is not material for in many Cases Strangers are bound by the Customs of London as that of Foreign bought and Foreign sold was resolved to be a good Custom 15 Car. 2. between Hutchins and Players in Communi Banco 2. Tho' it appears the Marriage was in a Foreign County and not shewn that he had Notice it is all one for if that might be an excuse the Government of Orphans by the City of London would be utterly insignificant for it would be only to seduce the Orphan out of the Liberties of the City and whatever practice there were to disparage her in a Marriage it would be dispunishable by them and Notice in this case is impossible to be given but most easie to be taken for what more proper than for a Man to inform himself of the Condition of her whom he intends to make his Wife and if Notice were requisite it must be given to all the Men in England capeable of Marriage and in what manner should that be by fixing it like a Proclamation to some notorious place in the County Yet it would be then hard to maintain that a Man was bound to take notice of such a thing the Statute of this King that takes away the Court of Wards saves and confirms the Iurisdiction of the Court of Orphans in London which being in a general Law is within every mans Notice for the Case of taking away a Mans Servant in a Foreign County to that he was retained in is not like to this for it he be detained after demand made he which first retained him may have an Action and so is at no loss but here there is no remedy by undoing the Marriage and therefore 't is fit the rashness of it should be punished This Custom concerning Orphans is not confined to the Walls of London in many particulars All the Children of a Freeman tho' he dies and they were born out of London shall yet be Orphans If a Legacy be bequeathed to a City Orphan in any Foreign County the Executor c. shall be compelled to give Security to the Court of Orphans for the payment of it Et vid. Luch's Case in Hob. 247. The interest of the City adheres to the person of the Orphan where ever he is as a Citizen of London shall have his personal Priviledges in all places as exemption from Toll Prisage Quaere the last per Hale And as well as they may have a Ravishment
same Goods before which Action is still depending And demanded Iudgment of the Writ The Plaintiff Replied That the other two died before the Action was brought and so that Writ abated To which it was Demurred and Iudgment quod respondeat ouster For in all Actions where one Plaintiff dies the Writ abates save in an Action brought by two Executors And Hale said So it should in a Quare Impedit but that it is revivable by Journeys Accounts Wild said That the Pleading That the Two died before the Action brought was double Hale No for he must shew both were dead to enable him to bring this Action alone Twisden How comes this Plea in Abatement after an Imparlance Hale Tho' after an Imparlance the Defendant cannot plead a Misnosmer or the like or Ancient demesne because he admits he ought to answer the Writ yet such a Plea in Abatement as this he may But that comes not in question because the Plaintiff Replied to it and did not Demur Nota Debt for Rent in the Detinet against an Executor shall be brought where the Lease was made because 't is for the Arrears in the Testators time But where 't is in the debet and detinet viz. for Rent incurred in the Executors time it must be where the Land lies And so Agreed by the Court. Nota No Tythes to be paid for Pasture wherein the Plow-Horses are fed And Hale said So it is of Saddle-Horses Anonymus A Foreign Attachment in an Inferiour Court was pleaded in this manner That by Custom time out of mind whoever Leavied a Plaint pro aliquo debito against another upon Surmize That a Stranger was Indebted to the Defendant that Process issued forth to attach c. Against this Pemberton Objected That it was not said pro aliquo debito which did arise infra Jurisdictionem Curiae The Court said that they need not express that the Debt did arise infra Jurisdictionem for perhaps it did not And yet if an Action be brought in such case and the Debt be laid to be Contracted infra Jurisdictionem Curiae if the Defendant will plead to it he may but he shall never be admitted to assign for Error in Fact that the Debt did arise extra Jurisdictionem Curiae But if he had tendred such a Plea in the Inferiour Court upon Oath then if they had refused it it would have been Error Wherefore 't is enough in this case to say If a Plaint were Levied pro aliquo debito infra Jurisdictionem without averring that the Debt did arise within the Jurisdiction Also there cannot be a Custom for a Foreign Attachment before there be some Default in the Defendant Wherefore the Pleading was there held to be Ill. Mosdel the Marshal of the Court against Middleton IN Debt upon a Bond with Condition to be a true Prisoner and to pay him so much by the week for Chamber Rent To this was pleaded the Statute of 23 H. 6. And the Court resolved it was void by that Statute Hale said a Bond for true Imprisonment is good prima facie but the Defendant may aver that it was also for ease and favour And so it was adjudged in Sir John Lenthals time who brought Debt upon a Bond of 2000 l and the party pleaded That it was taken for ease and favour and upon the Tryal it appeared That after that Bond the Defendant was permitted sometimes to go into the Country with a Keeper whereas before he was kept strait Prisoner and upon this matter the Bond was ruled to be void Twisden cited my Lord Hob. That a Gaoler could not take a Bond of his Prisoner for a just Debt Hale That seems hard because he takes it in another capacity But he cannot take a Bond for his Fees because it would give him opportunity to extort Also here part being against the Statute it avoids all but the Condition of a Bond or Covenant may in part be against the Common Law and stand good in the other part Hob. Cox versus Matthews IN Action for a Nusans in stopping of the Lights of his House Exception was taken to the Declaration for that he did not say autiquum Messuagium and yet it was ruled to be good enough for perhaps the House was new Built And the truth of this Case was said to be that the Defendant had Built the House and Let it to the Plaintiff and would now go to stop up the Lights Hale said if a Man hath a Watercourse running thorough his Ground and erects a Mill upon it he may bring his Action for diverting the Stream and not say antiquum molendinum and upon the Evidence it will appear whether the Defendant hath Ground thorough which the Stream runs before the Plaintiffs and that he used to turn the Stream as he saw cause for otherwise he cannot justifie it tho' the Mill be newly erected Watson versus Snead IN Debt for 20 l the Plaintiff declared that the Defendant concessit se teneri per scriptum suum Obligatorium c. the words of the Deed were I do acknowledge to Edward Watson by me twenty pounds upon Demand for doing the work in my Garden Vpon a Demurrer to the Declaration it was adjudged a good Bond. Morse versus Slue THe Case was argued two several Terms at the Bar by Mr. Holt for the Plaintiff and Sir Francis Winnington for the Defendant and Mr. Molloy for the Plaintiff and Mr. Wallop for the Defendant and by the Opinion of the whole Court Iudgment was given this Term for the Plaintiff Hale delivered the Reasons as followeth First By the Admiral Civil Law the Master is not chargeable pro damno fatali as in case of Pirates Storm c. but where there is any negligence in him he is Secondly This Case is not to be measured by the Rules of the Admiral Law because the Ship was infra corpus Comitatus Then the First Reason wherefore the Master is liable is because he takes a Reward and the usage is that half VVages is paid him before he goes out of the Country Secondly If the Master would he might have made a Caution for himself 4 Co. Southcotes Case which he omitting and taking in the Goods generally he shall answer for what happens There was a Case not long since when one brought a Box to a Carrier in which there was a great Sum of Money and the Carrier demanded of the Owner what was in it who answered That it was filled with Silks and such like Goods of mean value upon which the Carrier took it and was robbed And resolved that he was liable But if the Carrier had told the Owner that it was a dangerous time and if there were Money in it he durst not take charge of it and the Owner had answered as before this matter would have excused the Carrier Thirdly He which would take off the Master in this Case from the Action must assign a difference between it and the Case of
a Hoyman Common Carrier or Inholder 'T is objected That the Master is but a Servant to the Owners Answer The Law takes notice of him as no more than a Servant 'T is known that he may impawn the Ship if occasion be and sell bona peritura 2 Cro. 330. Hob. 11. He is rather an Officer than a Servant In an Escape the Gaoler may be charged tho' the Sheriff is also liable for respondeat superior But the Turnkey cannot be sued for he is but a meer Servant By the Civil Law the Master or Owner is chargeable at the Election of the Merchant 'T is further objected That he receives Wages from the Owners Answer In effect the Merchant pays him for he pays the Owners fraight so that 't is but handed over by them to the Master if the Fraight be lost the Wages are lost too for the rule is Fraight is the mother of Wages Therefore tho' the Declaration is that the Master received Wages of the Merchant and the verdict is That the Owners pay it 't is no material variance Objection 'T is found that there were the usual number of Men to guard the Ship Answer True for the Ship but not with reference to the Goods for the number ought to be more or less as the Port is dangerous and the Goods of value 33 H. 6. 1. If Rebels break a Gaol so that the Prisoners escape the Gaoler is liable but it is otherwise of Enemies so the Master is not chargable where the Ship is spoiled by Pirates And if a Carrier be robbed by an Hundred men he is never the more excused Ante. Cox versus Mathews THe Case was moved again And Hale said that if a Man Builds a House upon his own ground he that hath the Contiguous ground may Build upon it also tho' he doth thereby stop the Lights of the other House for cujus est solum ejus est usque ad coelum Poph. 170. and this holds unless there be Custom to the contrary as in London But in an Action for stopping of his Light a Man need not declare of an antient House for if a Man should Build an House up-his own ground and then grant the House to A. and grants certain Lands adjoyning to B.B. could not Build to the stopping of A's Lights in that Case 1 Cro. Sands and Trefuses 415. But the Case at Bar is without question for he declares That the Defendant fixed Boards to the Windows of the Plaintiff's House Anonymus UPon a motion to set aside an Inquisition taken before the Coroner super visum corporis certified into this Court that J.S. killed himself and was Non compos mentis Hale said such an Inquisition that finds a Man Felo de se is Traversable but no Traverse can be taken to make a Man Felo de se but fugam fecit is never Traversable Clue versus Baily IN Replevin the Defendant made Conusans as Bailiff to J. S. who demised the place where under certain Rent c. The Plaintiff Traverses the Demise and concluded hoc paratus est verificare To which the Defendant demurred generally And the Court were in doubt whether this ill conclusion of the Plea were not helped upon a general Demurrer Hale It were well the Causes of Demurrer were always assigned Specially and not to say only incertum dubium caret forma c. The old way was when Pleadings were drawn at the Bar to make the exception immediately and the other Party might mend if he pleased or might Demurr if he durst venture it And tho' now they are put in Paper yet such a Course should be observed for Demurrers were not designed to catch Men This not concluding to the Country seems to be but matter of Form and the Demurrer should have been quia non bene concludit Here the Defendant pleads that J. S. demised the Land for Life and without expressing the place of the Demise because of necessity it must be upon the Land Blake versus .... ERror of a Judgment in Replevin in the Mannor Court of Hexam in Northumberland where the Defendant avowed for Damage fesant The Plaintiff replied that J. S. was seized of the Mannor of Tallowfield in D. and that time out of mind he had Common c. in the place where and shewed himself to be Tenant and justified the putting in of his Beasts for Common and the Prescription being traversed it was found for the Avowant The Errors assigned were First In the Venire which was quia nec the Plaintiff nec Defendant aliqua affinitate attingunt instead of qui nec Hale said it was aided by the Statute of 8 H. 6. that helps Error in Process But Twisden said that Statute did not extend to inferiour Courts Another Error insisted on was that the Avowant did not shew that the Mannor of Tallowfield was infra Jurisdictionem Curiae But the Venire was extra vill ' Manerium de Tallowfield infra Jurisdictionem Curiae But the Court held that that was not sufficient to intimate that it was within the Jurisdiction but must have been shewn in pleading And Hale said seeing the Plaintiff had omitted to do it the Avowant might in his Rejoynder have alledged Tallowfield to have béen within the Jurisdiction as where one pleads a Plea without a place the other is not bound to Demurr but for his expedition may shew the place in his Replication Then VVild said this seems to be aided by the Statute of 21 Jac. which Enacteth That if the Jury comes out of any one of the places it sufficeth and here the Jury came as well out of the Vill where the Beasts were taken shewn to be within the Jurisdiction as the Mannor of Tallowfield Hale That will not serve in this Case for the Court could not Award a Venire to a place out of the Jurisdiction nor Jurors could not be returned out of such a place to try a Cause there Another Error assigned was that the Award of the Venire was praeceptum est per seneschallum and not said in eadem Curia To which it was answered That being on the same day upon which the Court was said to be held it must be intended so VVild held the Judgment ought to be reversed for the last Cause Twisden Principally for the first for he held that the Statute of the 8 H. 6. Aided not Process in inferiour Courts therefore where in the Award of the Venire it has been per quos rei veritas melius Scire poterit instead of Sciri the Judgment has been reversed Hale said that it ought to be Sciri for so it is in the Register and in the Statute of Eliz. that sets the Estate of Jurors at 4 l per ann But for the second Error he held that the Judgment ought to be reversed Whaley versus Tancred TRin. 23 Car. 2. Rot. 1513. In an Ejectment the Case was this Lessee for years makes a Feoffment and levies a Fine
excused yet 't is merely void as to the Party Et Ad jornatur Norton versus Harvey THe Case was an Executor being possessed of a Term let part of it reserving a Rent and died And the Question was whether his Executor should have the Rent or the Administrator de bonis non It was argued for the Executor that this Rent is meerly due by the Contract and not incident to the Reversion and the Administrator is in Paramount it being now as if the Testator had died Intestate and therefore before the Statute of this King such Administrators could not have had a Scire facias upon a Judgment obtained by the Executor tho' in the Case of Cleve and Vere 3 Cro. 450 457. 't is held that he may have a Liberate where the Executor had proceeded in the Execution of a Statute so far as an Extent for there the thing is executed and not meerly Executory as a Judgment If a Man that hath a Term in the right of his Wife le ts part of it reserving a Rent the Wife surviving shall not not have the Rent On the other side it was said that this case differed from that because the Reservation here is by him that had the whole Right executed in him Another objection against the Action was that here in the Declaration being in Covenant for Non payment of Rent there is not any demand alledged But that was answered because the Covenant was to pay such a Sum for the Rent expresly but if the Condition of a Bond be for performance of Covenants expressed in such a Lease one of which is for payment of Rent in that case the Bond will not be forfeit without a demand and of that Opinion were the Court and that the Executor should have the Rent but when recovered Hale said it should be Assets in his Hands And accordingly Iudgment was given for the Plaintiff Termino Sanctae Trinitatis Anno 26 Car. II. In Banco Regis Silly versus Silly DOwer of 300 Acres of Land 200 Acres of Pasture 100 Acres Meadow The Tenant pleaded Non Tenure The Jury found him Tenant as to 320 Acres of Land and as to the rest that he was not Tenant And the Iudgment was that the Demandant should recover the 320 Acres Error was assigned in this Court that the Verdict and Judgment were for more Acres of Land than were demanded But on the other side it was said Land was a general word and might include Meadow and Pasture Curia In a Grant Land will extend to Meadow Pasture c. but in Pleading it signifies Arable only and here in regard they are distinguished in the Count the Verdict and Judgment must be reversed for the whole Tho' Hale said antiently such Iudgment would have been reversed but for the surplusage Vid Post Batmore Vxor versus Graves TRover for a 100 Loads of Wood upon a Special Verdict the Case was this Copyhold Land was surrendred to the use of J. S. for years Remainder to the Brother of the Plaintiff's Wife who died before the Term expired and so was not admitted any otherwise than by the admission of the Tenant for years And it was resolved First That the admittance of him that had the Estate for years was an admittance for him in the Remainder 4 Co. 23. a. 3 Cro. 504. Fine sur Grant and render to A. for Life Remainder to B. Execution sued by A. serves for B. So an Attornment to Tenant for Life serves for him in Remainder and this brings no prejuduce to the Lord for a Fine is not due until after admittance and the Lord may Assess one Fine for the particular Estate and another Fine for the Remainder But Wild said he need not pay it until his Estate comes in Possession after a Surrender the Estate remains in the Surrender before admittance of the Cestuy que use yet where Borough English Land was Surrendred to the use of J. S. and his Heirs and he died before admittance It was held that the younger Son should have it Secondly It was resolved that the Possession of the Tenant for years was so the Possession of him in Remainder as to make a Possessio Fratris But then it was moved that the Conversion was laid after the Marriage and so the Feme ought not to have joyned with her Husband in the Action But the Court held that in regard the Trover was laid to be before the Marriage which was the inception of the cause of Action the Wife might be joyned as if one has the Custody of a Womans Goods and afterward Marries her she may joyn in Detinue with her Husband for in case of Bailment the Proprietor is to some purposes in Possession and to some out of Possession Hale said in this case the Husband might bring the Action alone or joyntly with his Wife And so Iudgment was given for the Plaintiff Anonymus IN Debt upon a Bond the Condition was to save the Obligee harmless from another Bond. The Defendant pleaded Non damnificatus The Plaintiff replies that the Money was not paid at the day and he devenit onerabilis and could not attend his business for fear of an Arrest The Defendant rejoyns that he tendred the Money at the day absque hoc that the Plaintiff devenit onerabilis to which it was Demurred and the Iudgment was given for the Plaintiff for the Money not being paid at the day the Counter Bond is forfeited Vid. 1 Cro. 672. 5 Co. and the Traverse in this case is naught The Mayor and Commonalty of London versus Dupester IN Debt for a Duty accruing to the City for Timber imported called Scavage The Declaration was that they were and had been a Corporation time out of mind and their Customs were confirmed by Act of Parliament Temps R. 2. c. The Defendant tendred his Law and Co. Entries 118. was cited where in Debt for an Amerciament in a Court Baron tho' the imposing of it was grounded upon a Prescription yet Wager of Law was admitted But notwithstanding in this case the Court overruled the Wager of Law for here the Duty it self is by Prescription and that confirmed by Act of Parlimant Debt for a Duty growing by a By-Law if the By-Law be Authorised by Letters Patents no Wager of Law lies So in Debt for Toll granted by Letters Patents 20 H. 7. Termino Sancti Michaelis Anno 26 Car. II. In Banco Regis Silly versus Silly THe Case was moved again And the Court said that the Demandant might have taken Judgment for the 300 Acres only habito nullo respectu to the rest and released all the Damages But this was not proper for an Amendment the Mistake being in the Verdict but if it could have been amended in the Common Bench the Court might here have made such Amendment Ante. Burfoot versus Peal A Scire facias was brought against the Bail who pleaded that the Principal paid the Debt ante diem impetrationis Brevis
Juratorum was returnable die Martis prox ' post mensem Paschae Nisi prius Richardus Rainsford Mil ' c. venerit die Lune in mensem Paschae instead of post mensem and so objected That there was no Authority to try the Cause there being no such day And the Court seemed to be of that Opinion and that there was no Record by which this could be amended but the Parties agreed to go to a new Tryal an so this Point did not come to be fully resolved Woodward versus Aston AN Indebitat ' Assumpsit was brought by the Plaintiff against the Defendant for 10l received of his Money Vpon Non Assumpsit pleaded and a Tryal at the Bar which the Court permitted because the Parties were Officers of the Court the Case appeared to be thus The Master of the King Bench Office or Chief Clerk had granted the Office of Clerk of the Papers and agreed on all hands that it was his to grant it to Woodward the Plaintiff and one Vidian and the longer liver of them Vidian being a Recusant and knowing himself disabled by the late Act of Parliament to continue in the Office Prays the Court that Aston might be admitted in his room which was done accordingly and within two or three years after Vidian died and Woodward commenced this Suit against Aston supposing that he had no right in the said Office The Plaintiff to Entitle himself shewed a Copy of the Enrolment in this Court of the Deed of Grant of the Office to him and Vidian And it was objected on the Defendants part that this was not Evidence but they ought to produce the Grant it self for tho' the Enrolment of a Bargain and Sale is Evidence because the Estate passes by the Enrolment without which the Deed would not be sufficient yet here the Deed passes the Office and the Enrolment is but as it were a Copy But the Court ruled that the Enrolment might be given in Evidence and of Grants of Offices in this Court it has been the course to Enrol Deeds Then the Deed it self was produced by the Defendant which was cancelled and urged by his Counsel that the Estate in the Office was thereby destroyed Curia contra Not as to the Plaintiff unless it appeared that he had a hand in the cancelling of it But then for the Plaintiff it was said that this was an entire Office tho' granted to two and one could not surrender or grant his Interest But then the Counsel for the Defendant shewed that when the Defendant was admitted into the Office the Court demanded of the Plaintiff whether he consented and he said salvo jure and seemed unwilling at first but afterwards the Chief Justice demanded of him whether he would execute it alone and told him he knew such things of him which would make appear it was not proper for him so to do and then he said he submitted and that afterwards Sir Robert Henly Chief Clerk made a new grant to the Plaintiff and Defendant of that Office which the Plaintiff knew of and yet joyned in the Execution with the Defendant which as was urged amounted to a surrender of his former Grant In 2 Cro. 197 258. it is said if an Officer for life accepts a new Grant 't is no Surrender of his former Estate The Court did not deny but that if it did appear that the Plaintiff had accepted this new Grant it would be a Surrender and that matter of fact was left to the Jury and they found for the Defendant The Court said in this case that a Rent or other Grant was not lost by the destruction of the Deed as a Bond or chose en Action was Quaere if the party himself Cancel it and if the Grantee of the Rent delivers up the Deed to the Grantor this is no Surrender but he may Sue for his Rent if he can recover the Deed again for a Chose en Grant must be Surrendred by Deed. Curtis al' versus Collingwood IN an Assumpsit the Plaintiffs declared That the Defendant was Excommunicated at their Prosecution for not paying of a Tax made for the Reparation of a Church of which they were Churchwardens and that in consideration that the Bishop would absolve the Defendant at the Defendants Special instance and request the Defendant promised to pay unto the Plaintiffs so much After Verdict it was moved in Arrest of Judgment that there was no consideration on the part of the Plaintiff yet the Plaintiff had Iudgment for it cannot be intended but that the Bishop absolved the Defendant at their instance and would not have done it but upon the account of the Promise of paying the Money to them Termino Sancti Michaelis Anno 28 Car. II. In Banco Regis Anonymus A Bill of Middlesex was issued out by an Attorney of this Court against the Countess of Huntington which was discharged by Supersedeas without pleading because it appeared by the Record that she was a Peere and the Attorney was committed for suing out of the Process The City of London against Goree AN Assumpsit for the Duty of Scavage and declared upon the Custom of London that every one which exposes Forreign goods to Sale which had been entred in the Custom-house shall pay so much for shewing of them After Verdict it was alledged in Arrest of Judgment that no Assumpsit lay for such a Duty for there ought to be a Contract express or implied to maintain an Assumpsit Again forasmuch as the Customs of the City are confirmed by Parliament this is a Duty by Record Sed non allocatur for there are multitudes of Presidents in such like Cases an Assumpsit lies upon a Bill of Exchange accepted an Assignee of Commissioners of Bankrupt may bring an Assumpsit and yet the Debt is assigned by Vertue of an Act of Parliament And the Court said in such case as this the Declaration might be upon an Indeb Assumpsit as it was in the Case at Bar. Molyn versus Cooke al' IN Trespass for Assault Battery and Imprisonment until the Plaintiff was forced to spend 20 l and deliver up a Bond of 100 l to be cancelled wherein one Lamplugh one of the Defendants stood bound to him Cooke pleads his Priviledge as Clerk to one of the Protonotarys of the Common Pleas. The Plaintiff replies that this Trespass c. was done by them joyntly and that he had taken out an Original against them all and that this Declaration against Cook was upon that Original and that he still prosecuted the rest viz. Lamplugh and Jeffries to which the Defendant demurred And Iudgment was given Twisden and Jones only present quod respondeat ouster for Cooke being joyned with others in the Action he shall have no priviledge As Powles Case Dier 377. he being Clerk of the Crown was sued with his Wife and not allowed his Priviledge because sued with his Wife Vid. Poph. Rep. 329. and Rolls Abr. 1 p. 493. Brown versus Wait. IN
legitimum Granting of Administrations was originally Temporal an came to the Churchmen by the Indulgence of Princes and therefore must in some sort be governed by the Temporal Laws In Administrations the Whole Blood ought to be preferred before the Half Blood for Next of Kin shall be taken to be meant by the Statute such as our Laws judge to be so Rolls tit Prohibition 303. and so it was held in one Brown's Case before the Delegates in 8 Car. This being a New Case the Court gave no Opinion but Adjourned it to the next Term. Postea Termino Paschae Anno 29 Car. II. In Banco Regis NOte Where Justices of the Peace find a Force and make a Record of it upon their View they are to Commit the Offenders but cannot restore the Possession Anonymus A Prohibition was prayed to a Suit in the Spiritual Court for Money taxed for the Reparation of the Church upon a Surmize that the Tax was imposed upon one part of the Parish omitting the rest And for this was cited Rolls tit Prohibition 291. in the Point But the Court doubted in regard it was not alledged That they had offered that Plea in the Ecclesiastical Court because Reparation of Churches is proper for their Cognizance But the Prohibition was granted and the other might Demur if they thought fit But afterwards in this Term it was Countermanded Anonymus A Prohibition was prayed to the Admiralty where there was a Libel for a Ship taken by Pirates and carried to Tunis and there Sold for that it did not appertain to the Court to try the Property of the Ship being sold upon Land Curia In regard it was taken by Pirates it is originally within the Admiral Jurisdiction and so continues notwithstanding the Sale afterwards upon the Land Otherwise where a Ship is taken by Enemies for that alters the Property And this was the Opinion of the Court in Eglesfield's Case in my Lord Hales's time contrary to my Lord Hobart in the Spanish Ambassador's Case 78. in the 1. Cro. 685. they have Cognizance of the Case of the Pirate because incident to the Principal Matter But afterwards it was observed upon the Libel that there was no mention made That the Ship was taken super altum Mare And tho' there was contained therein very much to imply it yet the Court held that to be absolutely necessary to support their Jurisdiction Note One taken upon an Excom ' Cap ' was Discharged because the Writ de Excom ' Cap ' was not delivered into this Court and Enrolled as is required by the Statute Robinson versus Woolly IN an Ejectment upon a Special Verdict the Case appeared to be thus A Clerk was Admitted and Instituted to a Benefice within the Diocess of Gloucester whilst the Bishoprick was Vacant and a Mandate from the Archbishop for Induction but before it was Executed by the Archdeacon a new Bishop of Gloucester was Consecrated and whether the Induction coming after was sufficient was the Question That it was It was Argued that after the Mandate made it was Executed so far as the Bishop had to intermeddle in the matter For if no Induction does follow the Remedy lies not against the Bishop F.N.B. 47. h. But an Action upon the Case against the Archdeacon for the Induction is said to be a Temporal Act 1 Rolls 125 195. Neither can such Mandate be Revoked by the Bishop or be Inhibited by the King 1 Rolls 294. Again the Archbishop hath a concurrent Jurisdiction with the Bishops throughout his Province and may Admit and Institute until the Inferiour Bishoprick is full And the Statute of 23 H. 8. cap. 9. takes away the Jurisdiction of the Metropolitan only as to Proceedings in that Court In case the Inferiour Ordinary refuses to Admit the Archbishop may do it as appears Hob. 15. Hutton's Case and Mo. 879. It was said on the other side That this was but an Authority derived from the Bishop and therefore ceasing before it was Executed is determined The Bishop may direct his Mandate to another as well as the Archdeacon It was compared to a Letter of Attorney to make Livery which cannot be done after the Death of him that gave it Et Adjornatur Postea Anonymus IN an Information of Forgery the Defendant Challenged one of the Jury for that the Prosecutor had been late Entertained at his House This was admitted to the Favour tho' against the King Vid. for that in the 1 Cro. 663. And then the Counsel for the King challenged another and being pressed to alledge the Cause for 33 Ed. 1. does take away the General Challenge quia non sunt boni pro Rege But all the Court save Wild who seemed to be of another Opinion ordered the Panel to be first gone through and if there were enough the King is not to shew any Cause Vertue versus Bird. IN an Action upon the Case the Plaintiff declared that it was agreed between him and the Defendant That he should carry the Defendants Timber from a certain place to the Defendants House then and there to deliver at such place as the Defendant should appoint and that such a Day and Year he did carry with certain of his Carts to the place aforesaid the said Timber there ready to be delivered but that the Defendant delayed by the space of six Hours the Appointment of the place insomuch that his Horses being so Hot with Carrying of the Timber aforesaid and standing in aperto Acre they died soon after After Not Guilty pleaded and a Verdict for the Plaintiff Ventris moved in Arrest of Judgment that here did not appear any Cause of Action for it was the Plaintiffs Folly to let the Horses stand Neither was the Defendant under the Penalty of an Action bound to receive the Timber or appoint a place but in case of Refusal the other might recover what he Contracted for the Carriage having done all on his part but not to bring an Action for not appointing a Place And by the Opinion of all the Court the Judgment was stayed Vid. 2 Cro. 386. Roll. Rep. 275. Baily and Merritt Anonymus IT was moved for the setting aside of an Order of Sessions for the Setling a Poor person in a Town which had been sent thither by a Warrant of two Justices and it was Confirmed upon an Appeal to the Sessions But the Court would hear nothing of the Merits of the Cause the Order of the Sessions being in such case Final unless there were an Error in the Form Note A man gives a Warrant of Attorney to Confess a Judgment and dies before the Judgment is Confessed This is a Countermand Anonymus JUstices of the Peace at the Sessions Ordered the Father of him which had the Bastard Child to provide for it under the pretence of the reputed Grandfather for the Statute doth enable them to Tax the Grandfather of a Legitimate Child But in this Case the Court held there was no Colour and therefore quashed the
should be informed what their course is and has been and therefore let us hear the Civilians as to this point Post The King and Marlow THe Defendant being a Printer was indicted for his second Offence for Printing of a Seditious Book contrary to the Act of 14 Car. 2. cap. 33. and being found Guilty at the Sessions of the Old Baily the Iudgment was given That he should be for ever disabled to exercise the Art or Mistery of Printing and pay 20 l Fine and to stand in the Pillory And a Writ of Error was brought and Errors were assigned in the Judgment as varying from the words of the Act. For First The Act is That he should be disabled to exercise the Art and Mistery of Printing or Founding of Letters And the Judgment is only to disable him from Printing Secondly The Act is That he shall receive such further punishment by Fine Imprisonment or other Corporal Punishment And the Judgment is both for a Fine and Corporal Punishment when it ought not to be for both Curia The first is as it should be for Printing and Founding of Letters are two distinct Trades and the words are to be taken respectively to such Trade as the Defendant is of Again 't is a Rule that a Man shall not Assign an Error in that which is for his advantage But the second was held an Error for that the Act did not intend a Fine and Corporal Punishment both and therefore the Judgment was reversed Termino Sancti Michaelis Anno 29 Car. II. In Banco Regis Davis versus Price IN Error upon a Judgment in the Common Bench in an Action of Trover where Iudgment was given by default The Error was assigned in the Declaration which was de decem Juvencis Anglice Bullocks and Heifers and not said how many of one and of the other But it was answered that the Latin word being proper and of known signification the Anglice was void according to Osborns Case 10 Co. But the Court reversed the Judgment and cited the Case before in this Court Trover de viginti ovibus matricibus agnis And it was resolved to be naught for not ascertaining the number of each But Twisden said there was a Trover brought de Viginti averiis ivz. Bobus agnis c. and Viginti was applied to each Species and held well It was offered in this case to distinguish it from the case de Ovibus matricibus agnis that there the Latin was of two sorts Sed non allocatur for the words here being Equivocal it was all one Dutton versus Pool AN Assumpsit the Plaintiff declared That his Wives Father being seized of certain Lands now descended to the Defendant and about to cut a Thousand pounds worth of Timber off from the said Lands to raise a Portion for his said Daughter the Defendant promised to the Father in Consideration that he would forbear to fell the Timber that he would pay the said Daughter 1000 l After Verdict upon Non Assumpsit for the Plaintiff it was moved in Arrest of Judgment that the Father ought to have brought this Action and not the Husband and Wife and there was a case shewn to be adjudged in the Common Bench Hillary 23 and 24 Car. 2. Rot. 1538. between Pine and Norris where the Son promised the Father that in Consideration that he would Surrender a Copyhold to him that he would pay a certain Sum to his Sister for which she brought the Action and then held that it would lie for none but the Father for where the Party to whom the Promise is to be performed is not concerned in the meritorious cause of it he cannot bring the Action But if a Promise were to a Man that if his Daughter should Marry his Son he would give her 1000 l there because the Daughter does the Act which is the Consideration she may bring the Action On the contrary the Case was cited 1 Rolls 32. Starkey and Miln where in Consideration of certain Goods sold the Promise was to pay part of the Money to another there that other might bring the Action And it differs from the case where Money is delivered to A. to pay over to B. B. may bring Debt Yelv. 24. If the Father had in the Case at Bar cut the Trees And the Son had said Let me have the Trees and I will pay the Daughter so much that had been the same with the Case before cited 1 Roll. and it doth not seem to differ as it is 1 Cro. 163. Rookwook Case where the Father being about to charge the Land with a Rent of 4 l per Annum to his Younger Sons the Eldest promised that if he would forbear to charge the Land he would pay the 4 l per Annum and the Sons upon this brought the Assumpsit and recovered Sed vide librum that Promise is said expresly to be made to the Sons who were present Vid. 1 Cro. 619.652 Levett and Haws Case where the Promise was made to a Man in Consideration that he had agreed that his Son should Mary his Daughter and to settle such a Joynture upon her that he would give the Son 200 l with her and for this the Father brought the Action and held well brought tho' the Court seemed to incline that the Son might also have brought it And the Court here inclined for the Plaintiffs Sed Adjornatur Post Saunders versus Williams IN an Action upon the Case the Plaintiff Declared that he was seised in Fee of one Acre and possessed for a certain number of years in another Acre and had a Common in Black-acre for Beasts levant and couchant thereupon and that the Defendant put his Beasts in the place and disturbed him The Defendant pleaded a Title of Common to himself also there Vpon which Issue was joyned and found for the Plaintiff and it was now moved in Arrest of Judgment that the Plaintiff had made no Title to the Common by Prescription or otherwise Sed non allocatur The Defendant being a Wrong-doer And the same Matter was Adjudged in the Court between St. John and Moody St. Mich. 27 Car. 2. quod vide ante and in the 2 Cro. 43.122 3 Cro. 500. Robinson versus Woolly THe Case was this Term Argued again And Holt Argued That the Induction tho' executed by the Archdeacon after the New Bishop was Consecrated was sufficient The Bishop is only to Admit and Institute and to send a Mandate to the Archdeacon to Induct who is to do it de communi Jure and therefore if the Bishop hath Admitted and Instituted and made a Mandate for Induction 't is a sufficient Excuse for him in a Quare impedit 11 H. 4. 9. for the Bishop is meerly a Spiritual Officer A Prebendary is to be Inducted by the Dean and Chapter Pl. Com. 529. But 't is Objected That the Archdeacon does not Induct ex Officio â—ut a Mandate from the Bishop is requisite scilicet First The
of the Proceeding after delivery of the Writ but the place only expressed where the Writ was delivered they thereupon overruled this Specious Exception Post Anonymus ONe A. B. was indicted of High Treason in Conspiring the death of the King and was brought to his Tryal at the Bar this Term and one D. being produced a Witness against him the said A. B. excepted against him for that the said D. had been Outlawed of Felony and Burned in the Hand and produced the Record The Witness to clear himself thereof produced the Kings Pardon whereby he was pardoned of the said Crimes Outlawry c. The Prisoner still objected that the Pardon did not restore him to his Credit and that notwithstanding he was no legal and competent Witness and prayed that he might have Counsel assigned him to argue the Point which was granted And the Court having heard his Counsel and conceived some doubt in the Matter they desired Mr. Justice Raymond to consult with the Judges of the Common Pleas to which Court Raymond immediately went and at his return reported to this Court the Opinion of the said Judges to be that he might be Sworn But if a Man convicted of Perjury were afterwards pardoned yet that would not enable him to be a Witness because it seemed to be an injury to the People to make them subject to the Testimony of such an one Vid. Hob. 81. a Pardon takes away poenam reatum so D. was Sworn Colepeppers's Case HE was indicted of High Treason for Raising Rebellion in Carolina one of the Kings Foreign Plantations in America whereupon he was this Term Tried at the Bar and acquitted Note By 35 H. 8. cap. 2. Foreign Treasons may be either tried by Special Commission or in the Kings Bench by a Jury of the County where that Court Sits Vid. Co. 1 Inst 261. b. Anonymus UPon a Tryal at Nisi prius at Guildhal before my Lord Chief Justice North in Trover and Conversion against an Executor de son tort ' The question came to be Whether the Goods having been taken in Execution upon a Judgment obtained against the Defendant by a Creditor of the Deceased should discharge him against the Plaintiff who brought this Action as Administrator And the Opinion of the Chief Justice was that this Execution was a good Discharge against another Creditor that should Sue him to whom he might plead Riens inter ses mains but it was no Discharge against an Administrator for Men must not be encouraged to meddle with a personsal Estate without Right but to prevent this mischief where the Party dies Intestate and there is contest about the Administration a Man may procure of the Ordinary Letters ad Colligendum Termino Sancti Michaelis Anno 32 Car. II. In Banco Regis Anonymus THe Statute of 43 Eliz. cap. 2. that enables Justices of Peace where a Parish is unable to provide for their Poor to Tax the neighbouring Parish the words being any other of any other Parish It was resolved that the Justices might impose the charge upon any of the Inhabitants of the neighbouring Parish and were not obliged to put a general Tax upon the whole Parish Anger versus Brower A Prohibition the Plaintiff declared upon an Attachment that at such a day and place he delivered the Writ to the Defendant and that he had prosecuted the Suit in the Court Christian since and upon Judgment by Nihil dicit and upon a Writ of Enquiry 100 l Damages were found and Judgment given and a Writ of Error brought The Error assigned was that the Plaintiff had laid no Venue where the Suing was since the Writ delivered which was the cause of Damage and not the delivery of the Writ so that place would not serve On the other side it was said that the Presidents were generally this way But to that the Court said that where those Presidents were there was no further Proceeding after Judgment as there seldom was when there was Judgment by Nihil dicit but here they reversed it for this Error Ante. The Case of the City of London concerning the Duty of Water Bailage THe Mayor and Commonalty of London brought an Indebitat ' Assumpsit against A. B. for 5 l for so much due to them for divers Tons of Wine brought from beyond the Seas to the Port of London at Four pence per Ton. Vpon Non Assumpsit pleaded and Trial at Bar divers Freemen of London were offered as Witnesses for the Plaintiff But the Counsel of the other side excepted to them for that they were Parties the Commonalty of London comprehending all the Freemen and likewise Interested On the other Side it was said that their Interest was in no sort to be considered it being so very small and remote a small Legatee hath been sworn to prove a Will In an Indictment against the County for not Repairing of a Bridge one of the County may be a Witness and this Justice Dolben said he had known in the Case of Peterburgh Bridge In a Robbery sur Statute de Winton the Plaintiff shall be Sworn a Witness and that for Necessity But it was Replied that there was no Necessity for they might have other Witnesses besides Freemen tho' perhaps with difficulty In an Action against the Hundred upon the Statute of Winton an Hundred or cannot be a Witness Scroggs Chief Justice Dolben and Raymond were of Opinion that they were Witnesses Jones contra And a Bill of Exceptions was tendred by the Counsel for the Defendant which the Court profered to Seal and to allow three or four days time to Draw it up But afterwards the Plaintiffs Counsel offered other Witnesses and set by their Citizens but the Verdict went for the Defendant Note It was said that the Lord Mayor could not Release the Action but under the Common Seal and that for a Duty or Charge upon a Corporation every particular Member thereof is not liable but Process ought to go in their Publick Capacity Note A Sheriff was ordered to attend the Court for demanding an excessive Fee for the execution of an Hab ' fac ' possess the Court saying there was none due Anonymus A Prohibition was granted to the Consistory Court of the Bishop of London for Citing one for calling of her Whore because such words by the Custom of London are punishable in the Courts of Law there Anonymus IF the Plaintiff dies after the Term began tho' before Judgment Entred yet Judgment may be Entred because every Judgment relates to the first Day of the Term. Anonymus A Motion was made to quash an Inquisition taken before the Coroners super visum corporis of one that killed himself which found that he was Felo de se But the Court were Informed that the party was Non compos mentis and that there had been an undue Practice by the Coroner of both which great Proof was made and upon that it was quashed Note The Court said that if the Body
feeds to their damage it will be a Surcharge and an Action upon the Case will lie against him The Lord cannot improve but he must leave them sufficent and there can be no reason why the Owner should not have the Surplusage if any be I know they will cite an Authority against me in the Case between Webb and Littleburgh which was in C. B. 1654. There I confess the Declaration was grounded upon a Prescription much like to this and the Plaintiff had a Verdict and the Court would not arrest Iudgment upon it The Answer that I must give to that Case is grounded upon the difference between a Demurrer and a Verdict The Court may intend that after a Verdict which may help it for I allow an exclusion of the Lord upon a Special Case disclosed in pleading and that Special Matter may be supplied by the Verdict Besides I must observe that it was a Case of small consequence that concerned the Lord only for his Costs for he hath enjoyed his feeding against that Verdict ever since I can say it upon my own knowledge for I know the Parties and know the Place it was at Elinswell near Bury St. Edmonds in Suffolk The Iudges listen to Exceptions after a Verdict but will give Judgment if there be any possibility to maintain it I may add that this was a Popular Times when all things tended to the licentiousness of the Common People I shall Conclude praying Judgment against this Prescription for these Reasons It is a new and unheard of way of Pleading and against the Rule of Law joyning Freehold Tenants in the generalty which have no relation one to another and annexing an entire Interest to several Estates and mixing Prescription and Custom which are of contrary Natures and are great Absurdities It is against Reason to oust the Owner of all the feeding which for ought appears is all the Profits without any Special Matter or Recompence appearing in Pleading There is great inconvenience in admitting of such a Prescription new Inventions bringing unknown Consequences No inconvenience in ousting Tenants of this Prescription seeing that they claim the same Usage the ordinary way and the Lord can do them no wrong either by feeding or improvement In this Case the Court of Common-Pleas had been divided in Opinion upon the Matter in Law as appears by Vaughans Reports and therefore Sir Henry North thought not fit to wave the Matter of Law in the Kings-Bench altho' he had so good a Case upon the Fact that if it had been no prejudice he would joyn Issue and try the truth of this Prescription at the Bar whereupon the Demurrer was by consent waved and the Cause tried at the Bar and the Verdict passed for Sir Henry North with the approbation of the whole Court Afterwards another Action was brought to trial in the Exchequer at the Bar and it appearing to the Court that there had been Proposals towards an Agreement a Juror was withdrawn and my Lord Chief Baron Hale gave the Tenants advice to comply with this saying Redime te captum quam queas minimo So that the Matter of Law was never adjudged against Sir Henry North but the Matter of Fact tried for him and the main Question upon the Act of Level never came in Question which may extend to this great Waste altho' both the other Points were against Sir Henry North. Afterwards there was another Action brought to trial in the Exchequer and after a full evidence of about 4 or 5 hours the Plaintiff not daring to stand the Verdict was nonsuited THE CASE OF Sir Robert Atkyns AGAINST HOLFORD CLARE Under-sheriff of the County of Gloucester TERMINO Sancti Hillarij Anno 22 23 Car. II. In Scaccario AN Action upon the Case was brought by the Plaintiff Vid. Co. Entr. 439. a Quo Warranto brought for these Hundreds setting forth That he was seised of the Seven Hundreds of Crochon Bright Reppesgate Bradley c. in the County of Gloucester and had Return and Execution of Writs there That the Defendant knowing of it did Execute several Writs there to the Plaintiffs damage c. Vpon Not Guilty pleaded Issue is taken and this Special Verdict is found viz. They find the Patent of 11 May 5 Johannis whereby the King restores to the Abbot and Convent of Canons Regular in Cirencester certain Lands granted to them by his Brother Richard the First and also grants That no Sheriff of Gloucester or his Bayliff do intromit in aliquo within the Seven Hundreds except for Pleas of the Crown and Summons which the Abbot c. should receive from the hands of the Sheriffs and execute They find the Patent of 20 Decembris 17 E. 3. wherein the King reciting that Richard the First by Patent granted to this Abbot and Convent the Mannor of Cirencester and the Seven Hundreds and the Return of Writs in them that thereby they had used and enjoyed Retorna Brevium tanquam pertinentia ad Septem Hundred ' praedict ' Reciting also that by a Presentment made it was seised into the Chancery and that He Edward the Third for a Fine of 300 l grants that they should hold the Mannor Hundreds Vills c. quod haberent in Villis Hundredis praedictis c. absque impedimento retorna Brevium Infangthief c. tanquam pertinent ' Hundredis praedictis c. of the King and his Successors c. and confirms the Patent of King John They find that the Abbot c. were seised prout Lex postulat till 4 Febr. 27 H. 8. when the Monastery was dissolved and all came to the Crown They find the Statute for vesting of these Lands c. belonging to the Monastery in the King and the Statute of 32 H. 8. cap. 20. whereby it is Enacted That all Liberties c. which the late Owners of Monasteries had used c. shall be revived and be really and actually in the King his Heirs c. and shall be in the Rule Order Survey and Governance of the Court of Augmentations and that the same Liberties c. shall be used and exercised by such Stewards Bayliffs c. as the King his Heirs c. shall name and appoint c. and that the said Stewards Bayliffs c. shall be attendant and obedient to all the King's Courts for all Returns of Writs c. as the Officers of the late Owners should have been c. and that no Sheriff Under-Sheriff c. should intromit meddle in with or upon the Premisses otherwise or for other cause than they lawfully might have done before the same Premisses came to the possession of the King They find that Edward the Sixth being seised by descent from Henry the Eight Anno primo of his Reign per Lit ' Patent ' ex gratia advisamento Concilii sui dedit concessit cuidam Tho. Seymour Mil ' Dom ' Seymour de Sudley omnia illa Hundreda de Crochen c. nuper Monasterio
are few that she goes to but lye desperately ill or dye under her hands Action good 21 Thou art a thievish Rogue and didst steal Plate from Wadham Colledge in Oxford The Words spoke in London where to be tryed 22 263 He is a Forsworn Justice and not fit to be a Justice of Peace if I did see him I would tell him so to his Face Action good 50 You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen 53 Of an Attorney That he could not Read a Declaration 98 He hath broke 2 or 3 of his Fathers Ribs of which he shortly after dyed and I will complain to a Justice of him he may be hangd for the Murder tho it were done 20 years since Action good 117 Of a Woollen Draper You are a Cheating Fellow and keep a false Book Action lies 117 He hath Forged his Vncle Row's Will 149 He had pickt his Pocket against his will and was a Pick pocket Not Actionable 213 Of a Justice of Peace He is not worth a groat and is gone to the Dogs Not Actionable 258 He is a false cheating Knave and keeps a false Debt Book with which he cheats the Country Actionable 263 For charging the Plaintiff with Felony generally Good 264 Of an under Carrier of Post Letters He hath broken up Letters and taken out Bills of Exchange Not lies 275 The Defendant said to the Plaintiff I know my self and I know you I never buggerd a Mare The words Actionable 276 He would have given D. Money to have Robbed G's House and he did Rob it 323 Administration By the Civil Law Administration ought to be committed to the Residuary Legatee whether Assets or not Assets 218 To which the Court of K. B. strongly inclined 219 316 Admiralty May punish one that resists the Process of their Court and may Fine and Imprison for a Contempt in the face of their Court but not give the Party Damages 1 Where Sentence is obtained in a Foreign Admiralty one may Libel for Execution thereof here thô the matter were not originally determinable in our Admiralty yet if the Contract were made on Land beyond Seas Prohibition lies 32 Its Jurisdiction in seizing Ships 173 It hath Jurisdiction of Ships taken by Pirates but not if taken by Enemies 308 Hath Jurisdiction for Mariners Wages 343 Age. Bond Conditioned that the Son and the Daughter of J. S. shall at their full Age give Releases this must be taken at their respective Ages 58 Alien Of his Capacity and Incapacity 417 Amendment The Court having Power over their own Entries and Judgments can amend defaults of Clerks after Judgment thô in an other Term 132 Mistake of the name in a Judgment in Ireland amendable here 217 No Amendment of a Return after the Filing 336 Apprentice See Statutes Whether the Quarter Sessions can discharge an Indenture of Apprenticeship 174 Appurtenant See Reputation A thing Appurtenant may be by Grant but a thing Appendant must be by Prescription 407 Connisance of Pleas may be created by the King 's Grant as he pleases either in Gross or as Appurtenant ibid. Arbitrament Award What Pleas good in Arbitrament and what not 50 71 87 184 Arrest Where the Bayliff may break a House upon an Arrest 306 Assault and Battery In an Action for both the Defendant may be found Guilty of the Assault but not of the Battery and here no more Costs than Damages 256 Assets Bonds and Specialties no Assets till the Mony be paid 96 Assignment Assignment where the Assignor keeps Possession Fraudulent and such Fraud may be avered 329 331 The word Assignees includes Assignees in Law as well as Fact 340 Assumpsit See Pleading Whether a Stranger to the Consideration may bring the Action 6 7 318 332 Good cause of Demurrer in Assumpsit where the Consideration carries nothing of trouble or prejudice to the Plaintiff or benefit to the Defendant 9 A mistake in the time relating to a Promise good after a Verdict 14 see also 119 Whether multum gratissimum servitium and multa Beneficia be sufficient Considerations in an Assumpsit 27. So for opere labore Servitio 44 Infant may make a Consideration whereon to ground an Assumpsit 51 The Breach must be laid as the Promise is 64 Forbearance of Suit where a good Consideration whereon to ground an Assumpsit 120 152 154 159 Claim without proof where good to ground a Consideration in an Assumpsit 211 Of Reciprocal Promises 177 214 Assumpsits in Consideration of Marriage 262 268 One Excommunicated for not paying in a Church Rate a Promise to pay in Consideration of Absolution Good 297 In Consideration of delivering Goods to a third person Good 311 Attorney See Mandamus Attorneys at large have the same priviledge with Clerks of the Court 1 Whether an Attorney in the Courts at Westminster may practise in Inferiour Courts 11 Attorneys shall be discharged of the Service of the Common Wealth à fortiori of any private Service as Constable Collector of Rents c. 16 29 Committed for Suing out a Bill of Middlesex against a Countess 295 An Attorney or Clerk of Court shall not have Priviledge if Sued joyntly with others 299 Averment See Pleading Assignment Obligation Where necessary and where not 41 43 44 117 149 177 178 B. Bail THe Action shall not be said to be depending until the Bail is Filed and not from the first day of the Term 135 Condition of the Bail Bond ought to agree with the Writ or else be void 233 234 Whether the Principal and Bail may be both taken in Execution 315 Bankrupt A Tradesman given over Trading may be a Bankrupt in respect of Debts contracted before 5 What makes a Man a Trader so as to make him a Bankrupt 29 166 A Man has Judgment in Debt and then becomes Bankrupt who shall have Execution 193 Victuallers for the Fleet not Traders within the Statute of Bankrupts tho' they Victual Merchantmen with the Surplus 170 The Commissioners Authority as to Commitments 323 Where a Debt paid by a Bankrupt to his Creditors shall be refunded 370 371 Baron and Feme See Statutes In Trover that they ad usum proprium converterunt c. Not good 12 24 33 Indebitatus Assump lies against the Husband for Apparel sold to the Wife 42 How to be Bailed when Arrested 49 Baron and Feme taken in Execution the Husband Escapes the Escape of the Husband is the Escape of the Wife and she shall be discharged 51 Battery brought against both and found only against the Feme Good 93 In a Suit the Baron makes an Attorney for both except the Feme be under Age 185. For then she is to be admitted by Guardian ibid. Where the Husband cannot release without the Wife 209 Battery brought by B. and F. for beating them both how far good 328 Bishop See Pleadings Of Common Right the Dean and Chapter are Guardians of the Spiritualties during the Vacancy of a Bishoprick but the
Usage in England is that the Archbishop is Guardian of the Spiritualties in the Suffragan Diocess 225 234 Blasphemy Blasphemous Words not only an Offence to God and Religion but a Crime against the Laws State and Government and Christianity is parcel of the Laws of England 293 Bond. See Obligation What Bond a Gaoler may not take of his Prisoner 237 The Condition of a Bond or Covenant may in part be against the Common Law and stand good in the other part ibid. C. Certiorari PRisoners cannot be removed by Certiorari from a Country Gaol till the Indictment be found below 63 Lies to remove an Indictment of Manslaughter out of Wales to be Tryed in the next English County 93 So of Murder 146 Challenge What is good Cause and where Cause shall be shewn 309 Where the Kings Council shall shew Cause ibid Chancery Tryals directed out of Chancery the Course 66 Answer in a Court of Equity Evidence at Law against the Defendant 212 Churchwardens Bring Account against their Predecessor for a Bell whether it shall be said to be de bonis Ecclesiae or de bonis Parochianorum 89 Whether they may refuse to take the Oath to present and how to proceed 114. 127 General VVords to present Offenders do not extend to the Church-warden himself but relate only to the rest of the Parish 127 May make Rates themselves if the Parishioners are Summoned and refuse to meet 367 Common See Pasture Where Common is claimed for Beasts Levant and Couchant on certain Land no other Beasts ought to be put on the Common but those of the Tenant of the Land to which it is appendant or those which he takes to compester his Land 18 A Man cannot prescribe for Common by a Prescripeion that is unreasonable 21 Common apurtenent for Beasts Levant and Couchant how pleaded 54 Common in another Mans Soyl how to be claimed 383 A Commoner cannot prescribe to exclude his Lord 394 The Comencement of Commons 395 In a Title of Common for Beasts Levant and Couchant the Levancy and Couchancy is not Traversable 385. Nor material among Commoners 397 Condition What Words make a Condition what a Limitation and what Conditional Limitation 202 203 Conspiracy If one be acquitted in an Action of Conspiracy the other cannot be guilty but where one is found guilty and the other comes not in upon Process or Dyes yet Judgment shall be against the other 238 Indictment lies for Conspiring to charge with a Bastard Child and thereby also to bring him to disgrace 305 Constable See Attorney Tenant in Antient Demesne not excused from serving Constable 344 Contingency See Grant Remainder Conveyance Contingent Estates what and how destroyed 215 334 Whether a Descent in Tayl prevents a Contingent Remainder 306 Contract A Verbal Contract cannot create a Penalty to oblige the Heir 76 Conveyance The Modern VVays of Conveyancing to prevent the disappointing Contingent Estates 189 VVhere a Conveyance is good before Inrolment and where not 360 Difference between a Conveyance at Common Law and a Conveyance to Uses 373 378 Copyhold See Pasture Admittance of Tenant for years is an Admittance of him in the Remainder 260 VVether Copyholder for Life in Reversion after an Estate for Life in being can Surrender to a Lord Disseizor 359 Coroner VVhere a Melius Inquirendum shall be granted after a Coroners Inquisition super visum Corporis 182 A Coroners Inquisition that finds a person Felo de se non Compos may be Traversed 278. And quasht 352 Corporation VVhat they can do without a Deed and what not 47 48 Costs See Assault and Battery Treble Costs in an Action on the Stat. 8 H. 6. of Forcible Entry 22 Costs where payable in a VVrit of Error 88 VVhere payable by an Executor 92. and Administrator 110 116 If an Executor be sued and the Plaintiff Non-suit he shall have Costs but an Executor Plaintiff shall pay no Costs upon a Non-suit 94 Costs and Damages not to be given in an Action Popular 133 Costs de Incremento 337 362 Covenant VVhat Collateral matters shall be implied upon a Covenant 26 44 45 Thô a Covenant be made only to a Man his Heirs and Assigns yet if a Breach be in his Life time his Executors may bring the Action for Damages 176 VVhere a Covenant shall bind notwithstanding a subsequent Act of Parliament 175 176 Covenant with an Intended VVife whether discharged by subsequent Marriage 344 Courts See Jurisdiction Inferiour Courts cannot make a Continuance ad Proximam Curiam but always to a Day certain 181 Customs See Prescription To maintain a Common Key for the unlading of Goods and therefore every Vessel passing by the said Key to pay a certain Sum a void Custom as to those Vessels which did not unlade at the said Key 71 A Custom that Lands shall descend always to the Heirs Males tho' of the Collateral Line Good 88 D. Damages See Costs NOne but the Courts at Westminster can increase Damages upon View 353 Date See Lease Demurrer The old way of Demurring at the the Bar 240 Devastavit See Executor Return Devise Whether a Termor may Devise in Remainder and limit a Possibility upon a Possibility 79 To Dr. V. during his Exile from his Country what Estate passes 325 Divers parcels of Lands being devised whether these words the said Lands pass all the parcels or only the last mentioned 368 A Devise of Lands to two equally to be divided makes them Tenents in Common 376 Discents The various Kinds of Discents or Hereditary Successions and the Rules whereby they are to be governed 414 The Discent from a Brother to a Brother thô it be a Collateral Discent yet it is an immediate Discent 423. And therefore two Brothers Born in England shall Inherit one the other tho' the Father be an Alien 429. Secus in Cases of Attainder 416 417 If the Son purchase and have no Kindred on his Fathers side but an Alien his Estate shall discend to the Heir on the part of his Mother 426 Distress Whether in Distress for Rent Horses may be severed from a Cart 36 An Information lies not against a Landlord for taking excessive Distress of his Tenents 104 Hindring the Carrying off a Distress a provocation to make killing no more than Homicide 216 Dower The regular proceedings therein 60 Whether a Suit for Dower may be commenced by Plaint in an Inferiour Court without special Custom 267 E. Ecclesiastical Persons PRivilidges from Offices 105 Death of a Parson c. doth not make such a Non-residence as shall avoid a Lease 245 What Leases they may make and what not 245 246 Clergy Men are liable to all publick charges imposed by Act of Parliament in particular for reparation of the Highways 273 Of the Induction of Clerks by whom to be made 309 319 Election Where a thing depends upon Election what course is to be observed 271 Entry Where in Ejectment actual Entry is necessary 332 Error See Executors To reverse a Judgment
in an Inferiour Court for want of infra Jurisdictionem Curiae 2 For variance between the Count and Plaint 6 But it lies not for some Omissions 5 A Writ of Error is a Supersedeas to an Execution 30. Yet the Judgment remains a Record 34 Exception 353 355 A Writ of Error returnable ad proximum Parliamentum not good Secus if to the day of Prorogation 31 266 No Writ of Error lies upon a Conviction before a Justice of Peace 33 In a Writ of Error if the Defendant dies the Writ is not abated Secus if the Plaintiff dies 34 Lies not to reverse a Judgment in a Qui tam nor upon the Statute de Scandalis Magnatis 49 What Records to be returned upon a Writ of Error 96 97 Where it lies upon a Judgment in a Scire facias and where not 168 Error in fact not assignable in the Exchequer Chamber 207 A Writ of Error that bears Teste before the Judgment good to remove the Record if Judgment be given before the Return 255 Escape See Baron and Feme VVhere a Prisoner Escapes by permission of the Sheriff he may be taken again by the Party Plaintiff 4 Debt against the Sheriff for a Voluntary Escape the Sheriff pleads that he took him again upon fresh Suit Good 211 217 Against the VVarden of the Fleet 269 The Lessor of the Custody of a Prison answerable for an Escape where his Lessee is insufficient 314 Escrow See Pleading Evidence See Statutes The party suffering admitted to give Evidence for the King to detect a Fraud 49 Exception See Feoffment Excommunication In Excommunication ipso facto no necessity of any Sentence of Excommunication 146 Excommunication pleaded to an Action per Literas testamentarias Good 222 How discharged where the Capias is not inroled according to the Statute 338 Execution Upon an Elegit the Sheriff ought to deliver Possession by Metes and Bounds or otherwise it may be quasht 259 Executor See Abatement Costs Return Of Infant Executors where to Sue by Guardian 40 54. VVhere by Attorney 40 102 103 If a Man names himself in an Action Executor or Administrator and it appears the Cause of Action was in his own right it shall be well enough and the calling himself Executor is but surplusage 119 VVhere the Executors promise in relation to the Testators Debt shall make the Debt his own 120 268 VVhere Interest is due for a Debt partly in the Testators life time and partly since and one Action brought and Judgment given for the whole this is manifestly Erroneous 199 VVhere chargeable in the Debet detinet and where in the detinet only 271 321 355 Cannot assume the Executorship for part and refuse for part 271 Debt doth not lie against the Executor of an Executor upon a Surmise of a Devastavit of the first Executor 292 Of the Executors renouncing 303 cannot refuse after Oath 335 Of Executor de son tort 349 VVhat Acts an Executor may do before Probat 370 Exposition of Words Obstrupabat 4 Or 62 148 Pair of Curtains and Vallence 71 106 Ad sequendum 74 Vt 73 74 Aliter vel alio modo 92 Mutuasset and mutuatus esset 109 Aromatarij 142 Centena 211 Issue 229 Land 260 Crates 304 Gubernatio Regimen 324 Exilium 326 Vestura terrae 393 Extinguishment Where two Closes are in the same Possession the Duty of Fencing is Extinguished and shall not Revive thô the Closes come after into several hands 97 F. False Latine DE sex bovibus instead of bobus no sufficient Cause to Arrest Judgment 17 Feoffment A Man makes a Feoffment of a Mannor excepting two Closes for the Life of the Feoffor only The two Closes descend to the Heir 106 Fine The Delivery of a Declaration in Ejectment upon the Lands is no Entry or Claim to avoid a Fine 42. So where an Action is brought and discontinued 45 A Fine cannot bar any Interest which was divested at the time of the Fine 56 Whether a Fine and Non-Claim bars the Interest of a Lessee in Trust 80 No Bar to a Mortgage 82 A Parish may contain many Vills and if a Fine may be levied of Lands in the Parish it carries whatsoever is in any of those Vills 170 Lessee for years makes a Feoffment and levies a Fine the Lessor shall have five years to Claim after the Term expired 241 Forcible Entry In an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with force because upon the finding a Restitution is to be awarded 23 Foreign Attachment See London Of Foreign Attachments by Custom how to be pleaded 236 G. Gaming See Statutes Guardian See Baron and Feme Executor Grant See Hundred GRant without Consideration hinders not the arising of a Contingent use 189 In Prescriptions or Usage time beyond Memory the Law presumes a Grant at first and the Grant lost 387. And therefore nothing can be prescribed for that cannot at this day be raised by Grant ibid. Of the Kings Grant 408 409 A Grant to a Town to be a County and no Grant of having a Sheriff void 407 H. Habeas Corpus See Statutes THo' the Return be Filed yet the Court may remand the Prisoner to the same Prison and not to the Marshalsey 330 346 Whether it lies to remove a Prisoner in Ireland 357 Half Blood The Sister of the Half Blood shall come in for distribution upon the Stat. 22 23 Car. 2. chap. 10. 316 317 323 Half Blood no Impediment to Administration 424 Harriot Where a Lease is made to commence on the Determination of another if the new Lessee dyes before his Term Commences whether a Harriot shall be due 91 Heir An implied Estate of Land shall not pass in a Will for an Heir shall not be defeated but upon a necessary Implication 323 376 A Man cannot by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser 372 379 Yet Heirs of the Body of his second Wife having a Son by the first is a good name of Purchase 381 Hospital Mastership of a Hospital not grantable in Reversion 151 Hundred A Hundred what it is and the Bayliff of a Hundred 403 The Grant of a Hundred good notwithstanding the Statutes 2 E. 3. 12. 14 E. 3. 9. 410 412. I. Imprisonment Where an Offence is Fineable if the Fine be tenderd there ought to be no Imprisonment 116 Indictment Where a Statute makes an Offence at Common Law more penal yet the Conclusion of the Indictment is not contra formam Statuti 13 A Man cannot be Indicted for saying of a Justice of Peace he understands not the Statutes of Excise but may be bound to Good Behoviour 10 16 Indictment of Forgery upon the Stat. 5 El. 4. where good and where not 23 24 Strictness of words not required in in an Order of Sessions thô it ought in an Indictment 37 For Manslaughter not quasht upon Motion 110.
the Statute are to King James and in administring the Oath King Charles is named 171 172 The Ecclesiastical Court may make Defendants answer upon Oath as the Chancery doth 339 Obligation If two be bound joyntly and one be sued he cannot demur unless he aver the other is living And if there be two Obligees one cannot sue unless he avers the other is dead 34 A Release of one Joint Obligee of all Actions c. upon his own account does not discharge the Obligation 35 I do acknowledge to E. H. by me 20 l upon demand for doing the Work in my Garden Adjudged upon Demurrer to be a good Bond 238 Office and Officer Whether acceptance of a second Grant of an Office be a surrender of the first 297 An Act begun by one Officer and left imperfect what remains for his Successor 319 320. Outlawry Reverst for want of the Words pro Comitatu and why 108 P. Pardon See Witness WHere good without mentioning the Indictment 207 Parliament See Error The Three Estates See King Pasture Custom for Copyholders to have sole Feeding in a Certain Waste it is not needful to alledge that the Beasts were Levant and Couchant Here also a Copyholder may license others without Deed to put on their Beasts 165 Peace See Indictments Ac. Case Formality of Words where necessary in the Proceedings of Justices of Peace 39 Justices of Peace their Proceedings in relation to Bastard Children 48 59 210 310 336 Upon a Forcible Entry 308 Order of Sessions final in relation to a settlement of the Poor 310 King's Bench may judge of Fines imposed at Sessions and mitigate them 336 Perjury See Indictment One gave Evidence at a Trial and afterwards made Affidavit that he was perjured and suborn'd for which Affidavit an Information of Perjury was exhibited against him and he found guilty of Perjury in swearing he was perjured 182 Pleading See Escape Trespass In Debt upon Obligation the Defendant pleads that he delivered it as an Escrow plea nought 9 Where the Defendant pleads in Abatement and the Plaintiff Demurs if it be adjudged against the Defendant it shall be quod respondeat ulterius But if any thing be alledged in Abatement where upon Issue joyned it goes for the Plaintiff there he shall have Judgment to recover his Debt 22 In Actions laid by way of Reciprocal Promise there needs no Averment of Performance 41 178 Double Plea what 48 272 Trespass quare Arbores succidit Declaration insufficient because not exprest what kind of Trees 53 The like of Fishes 272 329 In Battery absque hoc quod moderate castigavit no direct Traverse to the Defendants Justification 70. Yet good after a Verdict ibid. A Plea in Abatement shall not be admitted after Imparlance 76 136 184. Exception 236 A Traverse designed to bring a Colateral matter in question not allowed 77 Executor pleads plene Administravit the Plaintiff confesseth the Plea and prays Judgment de bonis Testatoris quae in futuro ad manus defendentis devenerint 94 Where the Plaintiff denies what the Defendant affirms whether he ought to traverse or conclude to the Country 101 In Trespass where the Defendant claims a Way what Justification is sufficient what not 13 Incertainty in the Declaration or Plea where naught 106 114 120 278. What shall be said a Departure in Pleading what not 121 Where one Declares against one upon a Deed and it appears that another was bound with him it shall not be intended that the other sealed unless averr'd on the Defendants side 136 137 Deed delivered as an Escrow how to be pleaded 210 An apt Issue is not formed without an Affirmative and a Negative 213 To declare that a Bishop was seized in fee and not say in Jure Episcopatus not binds Successor 223 In Debt for Rent semper paratus is no good plea without saying quod obtulit 322 The effect of an Innuendo 337 The Statute for discharge of poor Prisoners how to be pleaded 356 Several Freeholders cannot joyn or be joyned in a Prescription to claim an Intire Interest in another mans Soyl 384. Nor can Freeholders and Copyholders joyn 390 Powers See Rocovery Of Power to Lease where well persued 294 340 Of Power of Revocation See Revocation Whether the Power of Revocation is extinguished by a Fine 368 371 Prescription See Appurtenant Common Grant The Nature and Rules of Prescription 386 Diversity between Prescription and Custom 389 The Owner of the Soyl can by no Prescription or Custom be excluded out of his own Soyl at all times of the year 390. But he may be excluded for a certain time and as to some kind of Profits 391 Prohibition Where it lies to the Admiralty 1 146 To the Ecclesiastical Court where a Parson sues for calling him Knave 2 Whether it lies where a Bishop sues for a Pension in his own Court 3 Whether it lies upon Suggestion that the Proprietors and Occupiers of such a Mannor or any parcel thereof pay a Groat to the Parson for Herbage-Tythes ibid. Lies for citing a man to answer in the Ecclesiastical Court and not delivering a Coppy of the Articles 5. And if the Party be excommunicate a Prohibition with a Mandamus to absolve him ibid. 252 Not lies to the Ecclesiastical Court for calling Impudent Whore 7. Or Whore and Bawd 61 220. Denied to the Ecclesiastical Court for calling Old Theif and Old Whore 10. Secus in London 343 352 In Prohibition on a Suit for Tythes what Suggestion is to be proved within six months 107 To the Ecclesiastical Court to stay a Suit there for Apparators Fees Suggesting there were no such Fees due by Custom 165 To Woodstreet Compter London for refusing to admit a Plea to their Jurisdiction before Imparlance 180 The Defendant in the Ecclesiastical Court pleads that the Tythes belong to another which Plea is refused Prohibition lies 248 335 Granted to the Ecclesiastical Court where Custom and Prescription comes in question tho the Principal Cause belongs properly to that Court as Church-Wardens Rates Tythes Mortuaries 274 Whether it lies to the Ecclesiastical Court for refusing to admit a Proof by one Witness 291 No Precedent for a Prohibition quia timet 313 To the Council of the Marches 330 Proof See Record Where Proof is to be made upon a Writ of Enquiry and where not 347 Q. Queen A Reservation to the Queen of England does not exclude a Queen Dowager 151 One who hath been a Queen not properly called nuper Regina in her Life time 152 Qui tam. See Error Action Judgment arrested because Issue was joyned only on behalf of the Informer and not also for the King 122 Quo Warranto Against certain Persons of the City of Worcester claiming to be Aldermen 366 R. Record If a Record be lost it may be proved to Jury by Testimony 257 Recorder See Mandamus What Causes may be sufficient to remove a Recorder 144 145 Recovery Where a Fine is Levyed to Lessee for years with an Intent
Place assigned from whence the Venue should have come 348 350 No likelyhood of an Indifferent Tryal cause to change the Venue 365 Verdict See Assumpsit What Errors and Omissions are ayded after Verdict 34 100 108 109 114 126 Where a Special Verdict refers one Special Point to the Judgment of the Court all other matters shall be intended 118 After Verdict the Court shall admit any Intendment to make the Case good 123 Want of an averment of Levancy and Couchancy aided by a Verdict 165 Vse See Trust What Words and Considerations shall raise a Use 138 140 141 The use of a Fine or Recovery may be declared by a subsequent Deed 368 In Cases of Uses the Intention of the Parties ought to be pursued 373 374 378 Vsury The Statute against Usury expounded strictly in regard of Broakers 38 No Action of Debt lies for the Interest of Mony but it is to be recovered by Assumpsit in Damages 198 W. Wager of Law WHere admitted and where not 261 Indictment of Perjury will not lie upon an Oath in waging Law 296 Way High way and Private-way the Diversity and who shall repair 189 256 Whether an Indictment lies for stopping a Common Foot-way to a Church 208 Action on the Case for obstructing his way to his Wood 274 Wills A man cannot release a Debt by Will 39 Wills concerning the Guardianship of a Child and not to be proved in the Ecclesiastical Court but they may there prove a Will of Lands 207 Where Suits for Legacies given by Wills ought to be 233 The Effect of a Republication and Paroll Declaration 341 342 Witness See Evidence Statutes A Council Attorney or Sollicitor ought not to be examined against his Clyent because obliged to keep his Secrets 197 A Pardon of Felony though after burning in the Hand restores a man to be a Witness not so of Perjury 349 Whether a Freeman of a City may be a VVitness for that City 351 Writs A Fault in a Mean Process is aided by Appearance but if an Original should bear date on a Sunday the Appearance of the Party would not help it 7 Sr Peyton Ventris Kn t. Late one of the Justices of the Court of Com̄on Pleas. I Royly pinx H White sculp THE SECOND PART OF THE REPORTS OF Sir Peyton Ventris Kt. LATE One of the Iustices OF THE COMMON-PLEAS CONTAINING Select CASES Adjudged in the COURT of Common-Pleas in the Reigns of K. CHARLES II. and K. JAMES II. and in the Three first years of the Reign of His now Majesty K. WILLIAM and the late Q. MARY while he was a JUDGE in the said COURT With the Special PLEADINGS to the same ALSO Several CASES and PLEADINGS thereupon in the Exchequer-Chamber upon Writs of ERROR from the Kings-Bench Together with many remarkable and curious Cases in the Court of Chancery Whereto are added Three exact TABLES One of the Cases the other of the Principal Matters and the third of the Pleadings With the Allowance and Approbation of the LORD KEEPER and all the JUDGES LONDON Printed by the Assigns of Richard and Edward Atkyns Esquires for Charles Harper at the Flower-de-Luce and Iacob Tonson at the Judges-Head both over against St. Dunstan's Church in Fleetstreet MDCXCVI MVNIFICENTIA REGIA 1715 GEORGIVS D. G. MAG BR FR. ET HIB REX F. D. I. P. Sc. THE NAMES OF THE CASES IN THE SECOND PART A ADAMS v. Cross 181 Alleson v. Marsh ibid. Anonymus's 35 39 45 46 47 48 58 73 117 154 171 172 173 174 180 194 195 196 214 215 216 218 262 346 347 349 351 353 358 359 361 362 363 365 B BAiles v. Wenman 74 Barney v. Tyson 359 Bathurst 's Case 40 Baynton v. Bobbet 67 Bealy v. Sampson 90 93 Beaumont v. Weldon 155 Beversham 's Sir William Case 345 Biddulph v. Dashwood 261 Bird v. Blosse 361 Blake v. Clattie 73 Bland v. Haselrig al' 151 Blisse v. Frost 63 67 Blois Charles al' v. Dame Jane Blois and Jane Blois Infants 347 Bockenham v. Thacker 69 71 74 Bond v. Moyle 106 Bonham v. Newcomb 364 Bowyer v. Milner 57 Bracton v. Lister 84 Bright v. Addy 195 Broadhurst v. Richardson al' 349 Brown v. Rands 156 Buckler v. Millerd 107 Burchet v. Durdant 311 Bush v. Buckingham 80 83 Butler 's Sir Oliver Case 344 C CAge v. Russel 352 Carr v. Donne 189 193 Chamberlain v. Cooke 75 78 Chapman v. Flexman 286 291 Chase v. Sir James Etheridge 130 Clarke v. Peppin 97 99 Clarke v. Tucket 182 Clobberie 's Case 342 Coghill v. Freelove 209 Collet v. Collet 355 Colley v. Helyar 135 Cornwallis 's the Lord Case 38 Cooke v. Romney 173 Cramlington v. Evans and Percival 296 307 Craw v. Ramsey 1 D DAwney v. Vesey 249 Dawson v. The Sheriffs of London 84 89 Dennis v. Mazey 210 212 Dickman v. Allen 136 138 Dighton Christopher v. Bernard Greenvil 321 Dod v. Dawson 143 Dodwell the Case of and The University of Oxford 33 Dowse v. Cale 117 126 Draper Sir Thomas v. Dr. Crowther 362 E ELlis v. Yates 153 Every v. Carter 254 259 F FAgg v. Roberts al' 195 Fleet 's The Warden of the Case 154 Fowkes v. Joyce 50 G GAwden v. Draper 217 George v. Butcher 140 Godfrey v. Ward 185 Gower 's Sir Thomas Case 90 Goylmer v. Paddiston 353 Grove v. Dr. Elliot Chancellor of Sarum 41 Guldeford Major probi homines de v. Clarke 243 247 H HAnson Judith v. Liversedge 239 242 Harding 's Patrick Case 315 Harris v. Parker 249 253 270 Harrison Tho. Ux ' v. Dr. Barwell 9 Haslewood v. Mansfield 196 Haymer Vid. v. Haymer 343 Highway v. Derby 174 Hocket Ux ' v. Stegold ux ' 29 Hodges v. Waddington 360 Holland v. Lancaster 131 134 Hollis 's my Lord Case 345 Humphreys v. Bethily 198 222 K KEmp v. Cory al' 224 227 283 Killigrew v. Sawyer 79 King of Grays-Inn v. Sir Edw. Lake 28 L LAde v. Baker and Marsh 145 149 Lade v. Barker 260 266 Lawson v. Haddock 234 237 Lechmere al' v. Toplady al' 156 169 Leigh v. Ward 72 Lexington the Lord v. Clarke and his Wife 223 Littleton 's Sir Thomas Case 351 Lundy 's Colonel Case 314 M. MArks v. Nottingham 196 Marsh v. Lee 337 Mason v. Watkins 109 Massingham v. Durrant 49 Morgan v. Hunt 213 Morley v. Polhill al' 51 56 Mountague the Earl of v. The Lord Preston 170 N NEwport v. Godfrey 184 Noell v. Robinson 358 Norwood v. Woodly 193 O ONslowe 's Case 37 Otwaie 's Sir John Case 31 Oxford 's the City of Case 106 P PAge v. Kirke 36 Pawlet 's the Lord Case 366 Perrot 's Herbert Case 30 Pheasant Peter v. Anne Pheasant The Lord Mayor of London and Sir Thomas Player Chamberlain of London c. 340 Pinager v. Gale 100 Pretious v. Robinson 173 Prynne v. Sloughter 101 104 Pyne v. Woolland 176 179 R RAgget William Vx ' v. William Clarke 364 Rashly v. Williams 59 61 Reeve 's Sir Robert Case 363
1 W. M. After which Judgment for the Defendants 166 That the said Defendants shall go sine die and have their Costs 167 Averment that the said Judgment remains in full force That the Goods in the said Action of Trespass and this of Trover are the same That the Conversion in this Action and the Taking in the other is the same That the Cause of Action was the same in both And that the Plaintiffs and Defendants are the same Et hoc parati sunt verificare unde petunt Judicium si praedicti the Plaintiffs Actionem suam versus eos habere debeant c. Not guilty to the residue of the Goods The Plaintiffs demur The Defendants joyn 168 Vsury Pleaded Vid. Debt 7. Way Action for stopping it Vid. Action on the Case 5. WE all knowing the Great Learning and Judgment of the Author do for the Benefit of the Public approve of and allow the Printing and Publishing of this Book Intituled The Reports of Sir Peyton Ventris Kt. Late One of the Justices of the Court of Common-Pleas J. Som̄ers C.S. J. Holt Geo Treby Ed Nevill Joh. Powell W. Gregory N. Lechmere Tho. Rokeby G Eyre Jo Turton John Powell Sam. Eyre April the 20 th 1965. The Second Volume TERMINO SANCTI HILLARII Anno Vicesimo primo secundo Caroli Secundi IN COMMUNI BANCO Craw versus Ramsey IN an Ejectment of Lands and the Rectory of Kingston upon Thames in Surrey Vpon Not Guilty pleaded the Jury found a Special Verdict to this effect viz. That Robert Ramsey Born in Scotland before the Accession thereof to the Crown of England had Issue four Sons Robert Nicholas John and George Antenati Robert died they do not find when leaving Issue three Daughters Margaret Isabel and Jane who were also Aliens and alive 1 Octob. 14 Car. 1. Nicholas had Issue Patrick born in England 1 May 1618. They also find that at the Parliament holden 10 Car. 1. in Ireland it was Enacted That all Persons of the Scottish Nation should be reputed the Kings Natural Subjects to all intents constructions and purposes of that his Realm of Ireland as if Born there And they find the Act of Parliament at large Nicholas Ramsey was alive at the making of that Act. John the third Son afterwards Earl of Holderness was Naturalized by Act of Parliament in England 1 Jacobi and purchased the Lands and Rectory in question and being seised 22 Jac by Indenture Tripartite between him of the First part Sir William Cocke and Martha his Daughter of the Second part and Charles Lord Effingham of the Third part In Consideration of a Marriage to be had between him and Martha did Covenant to levy a Fine to the use of himself for Life and afterwards to Martha for Life the Remainder to the Heirs Males of his Body the Remainder to his own right Heirs And 29 Septemb. 22 Jac. the Marriage was had and the Michaelmas Term after a Fine was Levied accordingly The 24 of Jan. 1 Car. 1. the Earl died without Issue Martha Entred and was seised for her Life and died 17 Car. Et eodem anno it was found by Office that the Earl of Holderness died seised of the Rectory as before and without an Heir and that King Charles anno decimo granted this Rectory to one Murray George the fourth Son of Robert was Naturalized by the Parliament here 7 Jac. He had Issue John the Defendant Nicholas died Patrick his Heir in 1651. bargained and sold to the Earl of Elgin and one Sydenham virtute cujus vigore Statuti c. they were seised prout Lex postulat and in 1662. bargained and sold for years to Amabel Countess of Kent and Jane Hart and afterwards Released to them and their Heirs in 1665. They being seised bargained and sold by Lease and Release also to Pullen and Neale who Entred and bargained and sold to Sir Lionel Talmash and West the Lessors of the Plaintiff upon whom John the Defendant Entred Vpon which the Action is brought and the great Question in the Case was Whether Patrick the Son of Nicholas might claim these Lands as Heir to the Earl of Holderness by virtue of the Act of Parliament in Ireland 10 Car. or that they should descend to the Defendant the Son of George Naturalized the 7 of Jac. in England Wyld and Archer who Argued first were of Opinion That however the Point was adjudged the Plaintiff could not have Judgment upon this Verdict for they do not find that Patrick entred or was seised but that he in 1651. did bargain and sell c. Virtute cujus the Bargainees were seised prout Lex postulat and then bargained and sold in 1662 and do not so much as find their Bargainees seised prout Lex postulat But they find the Defendant Entred and so the primer Possession is in him which is a good Title against the Plaintiff for whom none is found it not being found that Patrick Entred Again If the Naturalization in Ireland will serve in England the Title appears for the Daughters the Heirs of Robert the eldest Son for 't is found that he died but not when so it might be after the Act of 10 Car. But Tyrrell and Vaughan Chief Justice differed in these two Points As to the First They said it would be intended Patrick entred for a Verdict that leaves all the Matter at large to the Iudgment of the Court will be taken sometimes by Intendment as well as where the Jury Conclude upon a Special Point 2 Cro. 64. find an Incumbent Resigned the Resignation shall be intended accepted So in 4 Co. Fullwood's Case it was found that one came before the Recorder of London and Mayor of the Staple recognovit se debere c. and did not say per scriptum suum Obligatorium nec per formam Statuti yet intended so Vid. Hob. 262. And where they find the Bargainees seised prout lex postulat that doth not leave it doubtful whether seised or no but whether by right or wrong for Seisin must be taken as found expresly Neither do they find any other in possession nor that the Defendant made any Claim in Twelve years after which enforces the Intendment as before And it is found expresly that Pullen and Neale Entred in 1665. so that the Defendant had not the primer Possession however or if he had he should not have Judgment if no other Title were found for him as is Resolved in 1 Cro. 42. Hern and Allen's Case As to the Second It shall be intended Robert died before 10 Car. For he is found an Alien and shall be presumed to have continued so during his Life unless found to the contrary then the Discent to the Daughters is obstructed by the Incapacity of their Father And tho' when the Title is found for the King the Court shall adjudge for him because the Kings Courts are intrusted with his Rights 't is not so of any other person but they shall take no
this Law by which this matter is to be decided Answ This Objection hath some speciousness in it but no weight First The Law viz. the Levitical Law is generally understood to be that which is publickly received as the Translation all Laws that are made concerning any such thing are to be understood of that kind of the thing which is vulgarly and generally known and received Secondly And 't is not long since the Clergy came to be so learned they were content heretofore with the Vulgar Translation and 't is not necessary for a Dean for that purpose or other Dignitary or Clergyman quasi such that he should understand the Languages But Thirdly We have no Cognizance of this Matter there was a time when they had no cognizance of Wills and Testaments but now they have they must study them and determine concerning them Since we have a Cognizance we may as well prohibit in this Case of Land Freehold c. For since this is made of the same nature we must go the same way If an Act were made that in matter of Theft c. we should judge after the Law of Moses we must study it and judge by it 'T is no new thing that Laws be thus transferred from one Nation to another thus was the Law of the Twelve Tables from Athens to Rome thus the Law of Rhodes to other parts of the World and so our Law was made the Law of Ireland and this is the Answer I give to the two Statutes that since we have Cognizance we must take notice of Gods Law If Churchmen in this case encroach Iurisdiction they must be prohibited because they have no Cognizance and we have tho' their accidental Learning may be more than ours Object 'T is hard that this should be a Prohibiting Law any more than those two other Statutes which 't is agreed were directive only to the Spiritual Courts and gave the Temporal Courts no Jurisdiction Answ There is a full and flat answer to this this Statute makes it not at all cognisable by them for where any Court has Cognizance the party must have Process c. But now here in the close of this Statute 't is enacted That no Person c. shall be admitted to any of the Spiritual Courts c. to any Process Plea or Allegation contrary to this foresaid Act And therefore all Cognizance of that nature is taken away from them They have Cognizance of all Marriages within the Levitical Degrees we allow and agree to disturb and punish the Parties but they have no Cognizance nor Power to determine what is within the Levitical Degrees and what not I conclude It is the Opinion of this Court and of all the Iudges that the Prohibition do stand and no Consultation be granted In this Case Dr. Stern the Archbishop of York was very zealous and industrious to set aside the Prohibition He made several and distinct applications to the Iudges about it he earnestly and particularly debated the matter with them and gave them Papers of his Arguments and Reasons to prove this Marriage incestuous and unlawful Thomas Rudyards Case THomas Rudyard an Attorney of this Court came into this Court upon the retorn of an Habeas Corpus directed to the Keeper of Newgate who retorned that he was taken and detained by virtue of a Warrant to him directed from Sir Samuel Sterling Lord Mayor and Sir J. Robinson two of the Kings Iustices of the Peace the tenour of which Warrant follows in these words Whereas T. R. Gent. hath been brought before Us and examined touching several Misdemeanours by him committed within the City of London since the Month of April and before the 4th of this instant June and to Us complained of and more particularly for inciting and stirring up of His Majesties Subjects then and there to the disobedience of his Laws and for abetting and encouraging of such as do meet in unlawful and seditious Conventicles contrary to the form of the late Statute made in the 22th Year of our Sovereign Lord the King that now is upon whose Examination we find just cause to suspect him to be guilty of the said Misdemeanours and thereupon did require him to find Sureties to be of the good Behaviour which he refused These are therefore to require you to take into your Custody the Body of the said T. R. and him safely to keep till he be from thence delivered by due Course of Law Given under our Hands and Seals this 11th day of June 1670. The Retorn being filed and spoken to by the Counsel upon two several days the Court delivered their Opinion Seriatim Wyld held that he ought to be remanded for if the Warrant had been that he appeared to be guilty or that they had found him guilty then the Commitment had been good as hath been agreed on all Hands and here the words in a favourable construction amount to as much The proceedings of the Magistrates against such Seditious Persons are to be encouraged especially in such a time as this when 't is known they are grown to such a head Archer contra For 't is altogether uncertain 't is said he was complained of c. but not that he did any thing and that they find just cause to suspect but shew not the Cause in particular If it had been said sundry Misdemeanours and not expressed what all would agree it insufficient as Chambers Case 1 Cro. and Wolnoths Case ibid. Mr. Selden 3 Car. was required to find Sureties for the good Behaviour for which the Iudges were severely reprehended in full Parliament because no sufficient Cause appeared Tho' the Iustices here had sufficient Cause to induce their suspicion they ought upon the Retorn to have signified it to the Court for their satisfaction also it should have been expressed also in what sum they required him to find Sureties that it might have appeared to be reasonable so that we cannot remand him but I think 't is fit to oblige him to Bail to appear the first day of the next Term that he may answer such things as shall be objected against him Tyrrell It is the Statute of 34 E. 3. c. 1. that enables Iustices of the Peace to require Sureties for the good Behaviour and that upon Suspition and seems to refer it to their Discretion but that must be exercised according to Law and whether it be or no the Iudges in this Hall must judge and therefore the matters ought to be certainly certified to them The present Retorn is altogether uncertain wherefore I think it ought to be discharged but I would advise him to consider the Statute of 35 Eliz. c. 1. against impugners of the Kings Authority in Ecclesiastical Causes Vaughan Chief Iustice This Case is one of the nicest that ever I met with on the one side is the consideration of discouraging Sectaries and preserving of the Publick Peace and Quiet of the Government On the other side the Legal Right which every
they have been favourably Construed A Mannor in Reputation hath passed by the name of a Mannor in a Recovery Sir M. Finch's Case in Co. and in 5 Co. Dormer's Case Common Recoveries have been admitted of an Advowson All here is to be taken as one Conveyance A Deed expressing the intent may abridge the Recovery in the number of Acres 2 Co. 76. 'T is true in case of the King as that in Mo. 710. there shall be no larger Construction than the express Words import So where the Intent appears as that in Dyer 261. B. North Chief Justice Wyndham and Atkyns Scroggs absent but said by the Chief Justice to be agreed were of the same Opinion and that Common Recoveries were not to be overthrown by nice Constructions and that the Inconvenience objected against the Intent being explained by a Pocket Conveyance was the same where a man had several Lands in the same Vill that of late they have directed the Cursitors to make out Writs of Lands in Parochia They said that there was no Case express against this and that it was the stronger because found in the Verdict that he which suffered the Recovery had no Lands in the Vill and therefore must be void if not extended to the Parish Termino Paschae Anno 32 Car. II. In Communi Banco The Case of Dodwell and the University of Oxford A Prohibition was prayed to the Chancellors Court of the University of Oxford in the behalf of Dodwell who being a Townsman of Oxford was Libelled against in the said Court upon a Statute or By Law of the University made in King James's time that whoever Privilegiatus sive non privilegiatus should be taken Walking in the Streets at Nine of the Clock at Night or after having no reasonable Excuse to be allowed by the Proctor c. should forfeit 40 s c. whereof one Moiety was to go to the University and the other to the Proctor c. that should take him And that Dodwell was taken walking abroad at that Hour and being demanded a Reason thereof he refused to give any Account causa contemptus ad morum reformationem this Libel was Exhibited The Prohibition was moved for the last Term but in regard the Court observed it touched the Jurisdiction of the University on the one hand and concerned the Liberties and Rights of the Townsmen on the other hand they deferred the granting of it until they should hear Counsel on both Sides which was appointed this Term. And now sundry ancient Charters were shewn by which was granted to the University a Iurisdiction tam in Laicos quam in alios and a By-Law made above 200 years since against Night-walking with the penalty of 40 s upon the Offender and Presidents of Proceeding thereupon in the Chancellors Court and that they were as well Guardians of the Peace by Prescription as by Charter And an Act of Parliament of 13 Eliz. was shewn whereby their Jurisdictions and Priviledges and Statutes were Confirmed And altho' the Mayor hath also a Commission of the Peace yet 't is subordinate and he swears Fealty to the Chancellor Curia This Libel is grounded upon a By-Law of 7 Jac. and being subsequent to that Statute of 13 Reginae it is questionable whether warranted by it or no This By-Law and Proceeding cannot be grounded nor derive Authority from their being Guardians of the Peace by Prescription as it seems they are by 9 H 6. 44. For without Act of Parliament or express Prescription a Corporation cannot make a By Law to bind those which are not of the Body Justices of the Peace cannot ordain a Penalty for a Crime without their Jurisdiction and the Proceeding in the Chancellors Court which is according to the Civil Lawâ— cannot be warranted by the Kings Charter For no Court other than such as proceed according to Law can be unless by Prescription or Act of Parliament wherefore in regard if the University should Intitle themselves to this Jurisdiction by Prescription it were properly triable by a Jury And if upon the Act of 13 Eliz. Matter of Law might arise how for the Act might extend North Chief Justice Atkyns and Scroggs thought it was not fit they should determine those Questions upon a Motion but inclined to grant the Prohibition and propounded to the parties to agree that the Libel should be amended wherein it was grounded upon the By-Law made 7 Jacobi which being subsequent to the Act of 13 Eliz. the Merits of the Cause would not be brought before themselves to determine the Grand Points which was agreed And then the Court said that they would grant a Prohibition and let the other Plead c. For North said that they did often deny a Prohibition tho' it were a Writ ex debito Justitae where they saw no Colour for it But if any material Questions were like to arise it was proper to grant it and not to determine them upon Motion but upon pleading to the Prohibition and therein it differed from a Habeas Corpus which was to be inst aly granted because the party is in Prison but there is no such speed requisite in a Prohibition But Wyndham was against the Prohibition in the Case at Bar for he took it that the By-Law 7 Jac. was but in Confirmation of that made before and as a Renewing of it which he took to be confirmed by the Act of 13 Eliz. Nota Scroggs said that Nine of the Clock could not be held such an Hour as it should be a Crime for a Townsman to walk at no more than Three in the Afternoon Tho' for Scholars it might be reasonable to restrain them but no Reason that Townsmen should be subjected to such Rules as were proper for Scholars And upon this he much grounded his Opinion for the Prohibition Anonymus IN an Action of Trespass the Defendant pleaded That the Plaintiff was Impropriator of such a Rectory and that he was sued in the Ecclesiastical Court and by Sentence there the Profits were sequestred for the Repair of the Chancel To which the Plaintiff demurred supposing that by 31 H. 8. the Profits of Rectories Impropriate were made Lay Fee and so not subject to be sequestred by the Court Christian and therefore it was supposed that the Lay Impropriator could not sue for Tythes in the Spiritual Court. For which Cause 32 H. 3. was made to empower Lay-men to recover them and 35 H. 8. gives the Ordinary Remedy for Procurations and Synodals which was conceived had been lost by making the Rectories Lay Fee 2 Cro. 518. in Parry and Banks's Case it is Resolved that when the Rectory is in the hands of a Lay Impropriator the Ordinary cannot dissolve the Vicaridge nor in such case cannot augment the Vicaridge 2 Roll. 339. The Form of Pleading was also Objected unto As First 'T is not positively alledged that the Chancel was out of Repair but that he was Libelled against which Libel did mention only it to be
IN an Assumpsit in Consideration that he paid him so much Money he promised to pay a like Sum into the Court and appear Object That there is no benefit as if it were in Consideration that he deposited so much Corn he promised to deliver it over 3 Cro. Cur ' This is not like for here he was benefit by the use of the Money but in the other case he is to deliver the Corn in specie Anonymus IT was moved that where the Defendant was a Constable and a Verdict for him being in the Execution of his Office and no Memorandum appeared as was usual upon the Postea to give him Double Costs according to the Statute of 7 Jac. that it must be now supplied But per Curiam We cannot do it because the Statute says the Judge before whom the Cause was tryed should allow double Costs and the Court cannot do it unless the Judge of Assize had ordered the Postea to be marked Anonymus IT was pleaded in Abatement that the Declaration varied from the Original in the Name of the Defendant and his Addition 'T was said that in such case the Cursitor or Clerk that made out the Writ may be ordered to attend and if his Instructions were right to amend the Writ by the Instructions Anonymus WHere a man was Outlawed after the Plaintiff had him in Prison a Reversal was Ordered at the Charge of him that prosecuted the Outlary it appearing to be an Abuse Anonymus COvenant that he shall Have and Enjoy and a Breach was assigned that such an one brought Trespass and Recovered And after Verdict it was moved in Arrest of Judgment that it does not appear that he which recovered in Trespass had a Title Serjeant Levins Here is an express Covenant that he should quietly hold the Possession and he is disturbed in his Possession tho' upon no Title And so is Dyer 328. a. Vaughan 120. Vide Hob. 35. Et Adjornatur Termino Sanctae Trinitatis Anno 1 W. M. In Communi Banco Anonymus A Motion was made to change a Venue where an Attorney was Plaintiff Object He has priviledge to lay it in Middlesex because of his Attendance Answ But here he has laid it within London Curia Then let the Venue be changed for then he is to be considered as a person at Large Anonymus A Motion was made for a Prohibition to a Suit for Tythe Lamb upon a Suggestion of a Modus to pay 2 d falling in the Plaintiffs Farm in the Parish Object A Prohibition was granted before to stop this Suit upon a Suggestion which was tryed and found for the Plaintiff and a Consultation granted Answ That Suggestion was for 2 d to be paid for every Lamb which fell in the Parish and this only to a particular Farm and so not within the Statute of 50 Ed. 3. that a second Prohibition shall not be granted after a Consultation awarded in the same Suit Vid. 1 Cro. 151. Stroud and Hoskins 1 Roll. Rep. 378. Note here If this Matter had been found by the Verdict no Consultation had been granted Hob. 192. But here the Court inclined against a Prohibition by reason of the said Statute of 50 Ed. 3. Anonymus A Fine was acknowledged before Herbert Chief Justice by a Man and his Wife 7 Decemb. 1689. and by reason that the late King James had deserted the Kingdom and taken away the Great Seal there followed a step of Proceedings at Law and the Woman died thy 20th of February following and upon the 22th of February the Kings Silver was paid as upon a Writ of Covenant in King James's time tho' no Writ was then sued out But afterwards a Writ of Covenant was taken out Returnable in Michaelmass Term last which was sealed with the Seal of King William and Queen Mary and the Fine was Engrossed and made as a Fine in Michaelmass Term. And this present Term it was moved that the Fine might be vacated and the Book of 1 H. 7. fo 9. was cited where the Cognizance of the Fine was in the time of R. 3. and afterwards a Writ of Covenant was sued in the time of Henry the Seventh which being shewn to the Court they stopped the Fine tho' 't is said in that Case that 't is the common course to take the Acknoweldgment of Fines and then to sue out a Writ of Covenant But they said they would not permit a President That an Acknowledgment of a Fine should be in the Predecessor King and the Writ of Covenant in the time of the Successor But the Court after the Cause had been twice moved and full Consideration of it gave their Opinions seriatim that the Fine should stand For the Entring of the Kings Silver after the parties death could not be now Examined in regard the Fine was engrossed and compleated as a Fine of Michaelmass Term. And so was Farmer 's Case Hob. 330. and Carill's Case Dyer 220. b. The Court would not stop a Fine taken of a Feme Covert when she was dead 1 Roll. Rep. 114. Note Several Presidents were shewn where Fines were set aside for undue Practice in the Passing of them viz. in case of Personating Fines taken by Commissioners of Infants c. Anonymus IN an Action of Trespass Quare clausum fregit and putting Stakes upon his Ground it was held that this was within the late Statute which Enacts That the Plaintiff shall recover no more Costs than Damages but if any thing had been taken away of how little value soever it had not been within the Statute Anonymus A Prohibition was granted to a Suit for Tythes upon a Suggestion that the Tythes were set out and it was moved for a Consultation that he did not alledge Notice given to the Parson And the Bishop of Catlisle's Case Hob. 107. was cited where a Custom was laid to set out Tythe Wool absque aliquibus visu tactu Roll. Abr. 2. pl. 19. of the Nine parts by the Parson c. But the Court were all of Opinion that Case having been twice moved that no Notice need be given to the Parson And so it is said to be Adjudged in Noy 19. tho' the Ecclesiastical Law is otherwise So is the Case of Chase and Ware Rolls tit Tythes 643. Style 342. where 't is held that if an Action be brought against the Parson for not taking away his Tythe after set out Notice must be given before such Action For the Bishop of Carlisle's Case in Hobart does not make against this for there a Custom was laid to exclude the Parson from seeing the Tythe which is to be set out which Custom is not to be omitted Vid. Rolls Abridg. tit Dismes 647. And the 2 of E. 6. cap. 13. Enacts That it shall be lawful for every person to whom Tythe ought to be paid to view his Tythe set forth and severed from the Nine parts Massingburn versus Durrant IN an Action of Trespass for breaking of his Close and cutting of
his Corn The Plaintiff declared of several Trespasses some whereof were in the time of King Charles the Second and other in the time of King James the Second and Judgment was by Default And after a Writ of Enquiry of Damages Returned Error was brought in the Kings-Bench and assigned that there was no Original and upon that a Writ was awarded to the Custos Brevium who certified an Original between the parties taken out in the time of the late King James which concluded contra pacem nostram And this could not be taken to be an Original in this Cause because then it should have Concluded contra pacem nostram necnon contra pacem Caroli Secundi nuper Regis and for that a Rule was in the Kings-Bench to Reverse the Judgment nisi It was thereupon moved in this Court that the Original might be amended for that it was said that the Instructions to the Cursitor were right and a Form given him to draw the Conclusion of the Writ contra pacem nostram contra pacem nuper Regis And it was admitted on the other Side that the Instructions were so given to the Cursitor But then it was Objected That this was part of the Legal Form of the Writ and in that an Original was not amendable And so Parker's Case in Hutton 56. where Indicari was put in a Writ upon the Statute of Hue and Cry instead of Indictari and it could not be amended tho' that word was right in the Instructions to the Cursitor And for Blackamore's Case in 8 Co. there in the principal Case the Instructions were in a Matter of Fact as in the addition of the party Knight instead of Gentleman but in that Case held That the Writ could not be amended in the Legal Form To this it was Answered That this was in Matter of Fact for a Writ of Trespass does not distinguish Trespasses in one Kings Reign or another that is only distinguished by the Conclusion contra pacem nostram nuper Regis and for that the Instructions were particularly given and that is the manner of giving the Instructions when there are Trespasses to be declared upon in the Reigns of several Kings And of that Opinion was all the Court and Ordered the Amendment accordingly But that the Plaintiff in the Writ of Error should have his Costs because the Error was brought and assigned by reason of this Fault in the Writ Note The Cursitor was not required to attend with his Instructions because they were agreed to be as the Plaintiffs Counsel in the Action alledged and so no Examination of the Cursitor requisite Note in Blackmore's Case in the 8 Co. it is said that the Writ shall be Amended by the Cursitor Quaere Fowkes versus Joyce IN a Replevin the Defendant avowed the Taking as a Distress for Rent in Barr of the Avowry The Plaintiff Replied That the Avowant had Lett the place where with an Inn and that he was driving his Cattle to London ad proficuum inde faciend ' and that he asked leave of the Avowant to put his Cattle in the Ground for a Night and that he gave him leave with the Consent of the Lessee Virtute cujus he put in his Cattle prout ei bene licuit Vpon which it was Demurred and to maintain the Barr to the Avowry it was urged That being put in the Ground belonging to the Inn they were priviledged and that being driving to London to a Market and put in for Pasture by the way they could not be Distrained To this it was Answered That there was nothing appeared in the Pleading of a Common Inn and so the Matter did not come in question neither was it set forth that the Cattle were driving to Market but only to London ad proficuum inde faciend ' And besides in the Barr to the Avowry the License is the only Matter relyed upon which doth not Conclude the Lessor from taking the Distress And of that Opinion was the Court. And the Court held That Cattle driving to a Market and put into Pasture by the way were not priviledged from being Distrained For 't is by the Statute of Marlbridge That Beasts cannot be Distrained in the High-way and not by the Common Law Morley versus Polhill al' Sussex ' ss EDWARDUS Polhill nuper de Burwash in ComÌ„praedicto Armig ' Covenant by the Executors of a Bishop against the Executors of an Assignee Executor of the Lessee Walterus Roberts JunÌ„ nuper de Saleherst in Com' praedict ' Armig ' Executores Testamenti Roberti Fowle Armig ' Assign ' Thomae Carey Armig ' Executoris Testamenti Samuelis Gott Armig ' nuper dicti Samuelis Gott of Grays Inn in the County of Middlesex Esquire Summon ' fuer ' ad respondend ' Francisco Morley Armig ' Executori Testamenti Georgii nuper Domini Episcopi Winton ' ê“x ' Successori Brian ' nuper Domini Episcopi Winton ' defunct ' de plito quod teneat ei convencÌ„onem inter praefat Brian ' nuper Dom ' Episcopum Winton ' in vita sua praefat ' Samuelem Gott in vita sua factam secundum vim formam effectum quarundam Indenturarum inde inter eos confectarum c. The Count. Et unde idem Franciscus Morley per Joseph ' Newington Attorn ' suum dicit quod cum per quandam Indentur ' factam apud Westfield in Com' praedict ' vicesimo quarto die Decembr ' The Indenture set forth Anno Regni Domini Caroli Secundi nuper Regis Angl ' c. Decimo tertio inter praefat ' Brian ' nuper Dom ' Episc ' Winton ' in vita sua per nomen Reverend ' Patris in Deo Brian ' per Divinam providentiam Dom ' Episc ' Winton ' ex una parte praefat ' Samuelem Gott in vita sua per nomen Samuelis Gott de Grays Inn in Com' Midd ' Armig ' ex altera parte cujus quidem Indenturae alteram partem sigillo praedict ' Samuelis Gott in vita sua signat ' idem Franciscus hic in CurÌ„ ê“fert ' cujus dat' est eisdem die anno Testat ' sit quod praefat ' Brian ' tunc Dominus Episcopus Winton ' Profert in Curia pro in consideratione sursumreddicÌ„on ' prioris Indenturae Anglicè The Considetion Lease quae suit determinare Anglicè to expire in mense Augusti qui tunc forer in Anno nostri Domini Dei Millesimo sexcentesimo sexagesimo tertio dimisisser concessisset ad firmam tradidisset Et praedictus Brianus tunc Dominus Episcopus Winton ' The Demise of Rectories and Parsonages per Indentur ' praedictam pro seipso successoribus suis dimisit concessit ad firmam tradidit eidem Samueli Omnes illas Rectorias Anglicè Parsonages de Rye Westfield quaslibet earundem cum suis pertin ' in Comitat ' Sussex ' omnia aedificia structura horrea stabula
usque diem martis prox ' post tres septiman ' Sanct ' Michael de audiend ' inde Judicio suo quod iidem Justic ' hic inde nondum c. Bockenham versus Thacker IN an Action upon the Case the Plaintiff declared that J. S. was indebted in a sum of Mony to the Plaintiff not exceeding 12 l and that the Defendant as he the Defendant said was indebted to J. S. in 12 l or there about That the Defendant in consideration that the Plaintiff at his request would procure an Order from J. S. in writing to the Defendant for payment of the Mony which the Defendant owed J. S. or any part thereof to the Plaintiff he promised to pay the Mony according to such Order The Plaintiff avers that he procured such Order from J. S for the Defendant to pay him 5 l which he shewed to the Defendant and the Defendant refused to pay c. The Defendant demurs generally to the Declaration Levinz for the Defendant argued that it was no sufficiently set forth that the Defendant was indebted to J. S. and if not there was no consideration Cur ' contra for it must be intended that he was indebted for 't is set forth that the Defendant said so but if not the procuring the Note at the Defendants request by the Plaintiff was a sufficient consideration It was Objected further that the Plaintiff had not alledged that he procured the Note at the request of the Defendant as the agreement was and for that 3 Leon. 91. was cited in consideration that he should repair such part of the House at his request it was held naught for not laying the repairing to be done at request Sed non allocatur for it shall be intended to have been done at request and so is Bretton and Boltons Case 3 Cro. 246. 2 Cro. 404. Berisfords Case and Poynters Case 1 Cro. Sed Nota All those Cases are after Verdict and so is the above cited Case See more of this Case afterwards Termino Sancti Michaelis Anno 1 W. M. In Communi Banco SErjeant Trinder moved the Court to set aside a Verdict recovered in an Action for the mesn Profits after a recovery in an Ejectment shewing that the Defendant in the Ejectment had brought another Ejectment since and recovered so that the first recovery was disaffirmed and therefore there ought to have been no recovery for the mesn Profits but the motion was denied by the whole Court Leigh versus Ward DEbt upon a Bond the Condition was to perform an Award and the Defendant pleaded that the Arbitrator made no Award The Plaintiff replied that after the Bond entred into and before the time set in the Condition for making of the Award scilicet tertio die Novembris anno c. per quoddam Scriptum suum arbitr ' adtunc ibidem fact ' c. and so sets forth the Award upon which the Defendant demurred because no place was mentioned where the Award was made Tremain for the Plaintiff said that the adtunc ibidem should refer to the place mentioned in the Declaration where the Bond was made Cur ' contra The adtunc ibidem cannot be referred to the place in the Declaration and there is no place mentioned in the Replication Whereupon Iudgment was given for the Defendant Memorandum Mr. Justice Eyres came to this Court at the desire of the Court of Kings Bench who were trying of a Cause at the Bar to know the Opinion of the Court of Common Pleas upon this Question An Infant who was a party to the Ejectment that was upon trial had answered a Bill in Chancery by his Gardian whether that Answer could be read in Evidence against the Infant And the Opinion of the whole Court was that it could not be read for it is not reason that what the Gardian swears in his Answer should affect the Infant Blake versus Clattie TRespass Quare clausum fregir diversa onera equina of Gravel had carried away per quod viam suam amifit After Verdict it was moved in Arrest of Judgment that the diversa onera equina was incertain and then mentioned the loss of his Way and had set forth no Title to the Way nor set forth any certainty of it It was said on the other side that the Incertainty was aided by the Verdict and the other Matter about the Way was only laid in aggravation of Damages But the Court held the Exceptions material and thought it would be very inconvenient to permit such a Form of putting in of a Way to a Declaration in Trespass Anonymus IN an Action of Debt for Rent the Plaintiff declared in Michaelmass Term last and laid the Demise to be Anno primo Jacobi Secundi Regis The Defendant pleaded Nil hab ' in Tenementis and the Plaintiffs Attorney delivered a Copy of the Issue where the Demise was laid Anno primo Regis nunc and so the Nisi prius Roll was at first but it was observed that the Plaintiffs Attorney had amended it but gave no Notice thereof to the Defendants Attorney nor delivered him a new Copy of the Issue and so went to Trial which proceeded the Nisi prius Roll being right and a Verdict was found for the Plaintiff And it was moved by Serjeant Rotheram that there should be a New Trial granted for the Defendant was surprized to find the Record right when they had a wrong Copy of the Issue But it appearing to the Court that the Defendant notwithstanding proceeded in his Defence and the Verdict was after a long Evidence that the Court would not set it aside but ordered the Plaintiffs Attorney to attend for the undue Practice in making of an Amendment in such manner Bailes versus Wenman IN an Ejectment upon a Special Verdict the Case appeared to be thus That Articles of Marriage were made between the eldest Son and Heir apparent of the Defendant and Martha one of the Daughters of one William Nailor whereby the Defendant was to settle the Lands in question upon the Lessor for his Life and after his decease upon Martha for her Ioynture with a Proviso that the Lessor should make a Lease of the Premisses to the Defendant for 99 years if the Defendant and Susan his Wife should so long live and that Susan died before the Lease made to the Plaintiff So the only Question was Whether the Lease for 99 years determined by the Death of said Susan The Court upon the first opening without Argument were all of Opinion that it did determine and Ordered Judgment to be Entred for the Plaintiff 5 Co. 9. in Brudnell's Case Daniel and Waddington 2 Cro. 378. Vide Dyer 67. and 1 Inst 225. a. Trupenny's Case Vide Anderson 151. A Lease made to two for their Lives absque impetitione vasti durant ' vitis of the Lessees and held that this Priviledge would hold to the Survivor for 't is reasonable to give the Priviledge as large a Construction as
were Six years Arrear of a certain Salary belonging to the said Office according to the Agreement aforesaid due and payable to the Plaintiff which he the Plaintiff had not received and the Defendant had not paid unto him licet saepius requisitus and so the Defendant had broke his Covenant The Defendant pleaded in Bar That he had from the time of the Agreement aforesaid to the time of the Writ brought permitted the Plaintiff to receive yearly the Profits of the said Office according to the said Agreement absque hoc that the Defendant had or received any part of the Profits of the said Office To this the Plaintiff Demurred and shewed for the Cause of Demurrer that the Defendant had traversed Matter not alledged And upon the first Argument Judgment was given for the Plaintiff by the whole Court that the Traverse was not good And the Court held that upon this Agreement the Defendant was not bound to pay the Money grown due for the Profits of the Office to the Plaintiff but was only restrained from intermedling with them and to leave them to be received by the Plaintiff Bush versus Buckingham Bedf. ss Debt upon a Bond. THOMAS Buckingam nuper de Shenly in Com' Bucks Yeoman alias dict' Thomam Buckingham de Houghton Reg ' in Com' Bedford ' Yeoman sum ' fuit ad respondend ' Mariae Bush Vid ' de placito qd ' reddat ei centum libras quas ei debet injuste detinet c. Et unde eadem Maria per Robertum Jenkin Attorn ' suum dic ' qd ' cum praedictus Tho' undecimo die Maii Anno Dom ' milliesimo sexcentesimo octogesimo sexto apud Luton ' per quoddam scriptum suum obligatorium concessisset se teneri praefat ' Mariae in praedictis centum libris solvend ' eidem Mariae cum inde requisit fuisset praedictus tamen Thomas licet sepius requisit ' praedictam centum libras eidem Mariae nondum reddidit Set ill ' ei hucufque reddere contradixit adhuc contradic ' unde dic ' qd ' deteriorat ' est dampnum habet ad valenc ' viginti librarum Et inde produc ' Sectam Profert in Curia scriptum c. Et profert hic in Cur ' scriptum praedictum qd ' debitum praedictum in forma praed ' testatur cujus dat' est die anno supradict c. Defendant craves Oyer of the Condition Et praedictus Thomas per Humfrid ' Taylor Attorn suum ven ' defend ' vim injur ' quando c. Et pet ' audit ' scripti praedicti ei legitur c. pet ' eciam audit ' conditionis ejusdem scripti ei legitur in hec verba The Condition of this Obligation is such that if the above bound Thomas Buckingham and William Holk or either of them they or either of their Heirs Executors Administrators or Assigns or any of them do or shall well and truly pay or cause to be paid unto the abovenamed Mary Bush her Executors Administrators or Assigns or any of them the full and just sum of fifty two pounds and ten shillings of good and lawful Many of England in or upon the twelfth day of November next ensuing the date hereof without fraud or further delay That then this present Obligation to be void and no effect or else to remain in full force and vertue And pleads the Statute of Usury Quibus lectis audit ' idem Thomas dic ' qd ' ipse de debito praedict virtute scripti praedicti onerari non debet quia dic ' qd ' per quendam Actum in Parliament ' Dom ' Caroli Secundi nuper Reg ' Angliae inchoat ' tent ' apud Westm ' in Com' Midd ' vicesimo quinto die Aprilis Anno Regni sui duodecimo edit ' provis inter alia inactitat ' fuit Authoritat ' ejusdem Parliament ' qd ' nulla persona sive personae quaecunque ab post vicesimum nonum diem Septembris Anno Dom ' millesimo sexcentesimo sexagesimo super aliquem contractum ab post praedictum vicesimum nonum diem Septembris caperet seu caperent direct ' vel indirect ' pro accommodatione Anglicè leave aliquorum denar ' mercimoniorum merchandizarum vel al commoditat ' quorumcunque ultra valor ' sex librarum pro differend ' Anglicè forbearance centum librarum pro Anno sic secundumistam ratam pro majori vel minori summa vel pro longiori seu breviori tempore Et qd ' omnes obligationes Anglicè Bonds contract ' assuranc ' quecunque post tempus praedict ' fact ' pro solutione alicujus principal ' summae pecun ' accommodand ' vel convent ' performari super vel pro aliqua usuria Anglicè Vsury super quas vel per quas reservat ' vel capt ' foret ultra ratam sex librarum in centum libris ut praefertur penitus vacuae forent prout per eundem Actum in t ' al' The Usurious Contract plenius liquet praedictus Thomas dic ' qd ' post praedict ' vicesimum nonum diem Septembris in Actu praed ' superius mentionat ' ante confection ' scripti obligat ' praedict ' scilicet praed ' undecimo die Maii An' Dom ' milesimo sexcentesimo octogesimo sexto supradict ' apud Luton praed ' in t ' praefat ' Mariam ipsum Tho' corrupt ' contra form ' Statut ' predict ' agreat ' concordat ' fuit qd ' praed ' Maria accommodaret eidem Thomae quinquagint ' libras eidem Mariae praedict ' duodecimo die Novembris in Conditione praed ' spec ' resolvend ' qd'que praedict ' Thomas pro lucro interesse differendo dando diem solutionis praedict ' quinquaginta librarum per tempus illud solveret praefat ' Mariae summam duarum librarum decem solidorum Qd'que pro securitat ' solutionis tam praedictarum quinquata librarum de principal ' debito praed ' quam praedict ' duarum librarum decem solidorum ipse idem Thomas per ' scriptum suum obligatorium debit ' legis forma conficiend ' deveniret tent ' obligat ' The Bond to be given thereupon praefat ' Mariae in centum libris cum conditione eidem subscript ' pro solutione quinquaginta duarum librarum decem solidorum super praedict ' duodecimum diem Novemb ' tunc prox ' sequen ' idem Thomas ulterius dic ' qd ' in performatione corrupt ' concordiae praedict ' in t ' ipsam Mariam praefat ' Thomam in forma praed ' habit ' fact ' praedict ' Mariae postea scilicet praedict ' undecimo die Maii Anno Dom ' The Mony lent millesimo sexcentesimo octogesimo sexto supradicto apud Luton ' praedict ' accommodavit eidem Thomae quinquaginta libras resolvend ' eidem Mariae praedicto
the Scrivener and that the Agreement of the parties was for no more than just Interest and this was held a good Averment to save the Bond from being void by the Statute of Usury And a Case between Lewknor and Mountague was cited where the Condition of a Bond was If William Mountague shall do c. whereas there was William Mountague the Father and William Mountague the Son and by the Averment of the meaning of the parties this was expounded of the Son But the whole Court were here of Opinion that the Averment in the Case at Bar was not to be admitted for it would carry the Condition to another sense then the words import As to the Case upon the Statute of Usury there it depends upon the Agreement and the party may shew any to make appear there was no Corrupt Agreement Vid ante hoc Termino the Case of Bush and Buckingham And as to Lewknor's Case the Averment was but to ascertain which William Mountague was meant and stands well with the words of the Condition But whether as the Condition is penned for the payment to be during the Life of Peter Becket and the Minority of Mary that the payment should determine upon the death of Peter the Court did not deliver their Opinion according to the Opinion in Brudnell's Case in 5 Co. 9. it would seem that it should But the Case of Cross and Tooker in Latch 162. seems strong to the contrary Vid. that Case in Popham 201. and in 1 Anderson 151. absque impetitione vasti during their Lives held that the Priviledge shall continue to the Survivor But the whole Court held the pleading of the tender insufficient because it is not said that Peter Becket refused otherwise if a place of payment had been in the condition and it had been shewn in pleading that the party which was to receive the Mony was not there 1 Cro. 888. Plea of tender without setting forth a refusal not good Lea and Exellies Case And the acceptance after the day signifies nothing and upon that point the Court were of Opinion for the Plaintiff but Iudgment was not given because the parties shewed an inclination to compose the business Mason versus Watkins AN Action of Debt upon a Bond of 20 l The Defendant demanded Oyer of the Condition which was that the Obligor should not himself bring any Evidence at the Assizes to prove the two Cows now in question between one Owen Mason the younger and the said Watkins to be the Cows of the said Watkins or of Robert Gillo and that the said Gillo shall set in a Bill of Ignoramus that then the Bond should be void The Defendant pleaded quod ipse de deb ' praedict ' virtute Scripti Obligat ' praedict ' onerari non debet because that one of the said Cows was the Cow of the said Watkins and the other of the said Gillo and that before the Bond Owen Mason jun. in the said Condition mentioned being the Plaintiffs Son stole the said two Cows and was imprisoned thereupon and the Defendant Watkins was bound by Recognizance to prosecute him at the Assizes for the said Felony and there the said Mason jun. was indicted and convicted and the Defendant did give Evidence that one of the Cows was his prout bene licuit and that the Defendant did not give any Evidence by himself or any one else to prove the two Cows to be the Cows of the Defendant or the Cows of the said Gillo hoc paratus est verificare c. unde petit judicium c. To this the Plaintiff demurred and upon the first opening Iudgment was given for the Defendant for the Condition is against Law viz. to shift off evidence of Felony and that makes the Bond void vide Jone's Case 1 Leon. 203. and the Court recommended it to Serjeant Pawlet who was a Iudge in Wales where the Plaintiff lived to see to have him prosecuted for taking such a Bond. Termino Sancti Hillarii Anno 1 2 W. M. In Communi Banco Trippet versus Eyres Lond ' ss Debt upon a Bond to perform an Award JOHANNES Eyre nuper de Sheffeild Mannor in Com' Eborum Gen ' al' dict' Johannem Eyre de Sheffeild Mannor ' in Com' Eborum Gen ' summonitus fuit ad respondend ' Burrowes Trippet Gen ' de placito qd ' reddat ei trecentas libras quas ei debet injuste detinet c. Et unde idem Burrowes ê‘ Rich. Milward Attorn ' suum dic ' qd ' cum praedict ' Johannes nono die Marcii Anno Regni Domini Regis nunc tercio apud London ' in Paroch ' beatae Mariae de Arcubus in Warda de Cheap ê‘ quoddam Scriptum suum Obligatorium concessisst se teneri eidem Burrowes in praedict ' trecentis libris solvend ' eidem Burrowes cum inde requisit ' fuisset praedict ' tamen Johannes licet saepius requisit ' praedict ' trecentas libras eidem Burrowes nondum reddidit set ill ' ei hucusque reddere contradixit adhuc contradic ' unde dic ' qd ' deteriorat ' est dampnum habet ad valentiam centum librarum Et inde ê“duc ' Sectam c. Et ê“fert hic in Cur ' Scriptum praedict ' Quod debitum praedict ' in forma praedict ' testatur cujus dat' est die anno supradictis c. The Defendant craves Oyer of the Condition Et praedict ' Johannes ê‘ Johannem Gatacre Attorn ' suum ven ' defend ' vim injur ' quando c. Et pet ' audit ' Scripti praedicti ei legitur Pet ' eciam audit ' conditionis ejusdem Scripti ei legitur in haec Verba ss The Condition of this Obligation is such That if the above-bounden John Eyre his Heirs Executors and Administrators for his and their parts and behalfs do in all things well and truly stand to obey abide perform fulfill and keep the Award Order Arbitrament final End and Determination of Francis Barlow of Sheffeild in the said County Gent. and Robert Soresby of Sheffeild aforesaid Gent. Arbitrators indifferently named elected and chosen as well on the part and behalf of the above-bounden John Eyre as of the above-named Burrowes Trippet to Arbitrate Award Order Iudge and Determine of and concerning all and all manner of Action and Actions Cause and Causes of Actions Suits Bills Bonds Specialties Iudgments Executions Extents Quarrels Controversies Trespasses Damages and Demands whatsoever at any time or times heretofore had made moved brought commenced sued prosecuted done suffered committed or depending by or between the said Parties or either of them so as the said Award be made and put in Writing or by word of Mouth on or before the ninth day of April now next ensuing but if the said Arbitrators do not make such their Award of and concerning the Premisses by the time aforesaid that then if the said John Eyre his Heirs Executors and Administrators
ann ' For 21 years extunc ê“x ' sequen ' plenar ' complend ' finiend ' Virtute cujus dimissionis praedictus Johan ' in TenÌ„ta praed ' cum pertinen ' Lessee enters intravit fuit inde possessionat ' Et sic inde possessionat ' existen ' idem Johannes postea scilicet decimo die Augusti Anno Domini millesimo sexcentesimo octogesimo secundo apud Grancester praedictam dimisit ad firmam tradidit eidem Roberto Dickman Tenementa praedicta cum pertinen ' habend ' occupand ' And Demised to the Plaintiff eidem Roberto Assign ' suis a Festo Sancti Michaelis ArcÌ„hi tunc ê“x ' sequen ' usque plenum finem terminum sex annorum extunc ê“px ' sequen ' plenar ' For six years complend ' finiend ' virtute cujus dimissionis idem Robertus in crastino dicti Festi Sancti Michaelis Arch ' Anno Domini milesimo sexcentesimo octogesimo secundo supradicto in Tenementa praedicta cum pertinen ' intravit fuit inde possessionat ' The Lessee Enters usque finem expirationem ejusdem termini praedictus tamen Abrahamus praemissorum non ignarus sed machinans fraudulenter intendens ipsum Robertum minus rite praegravare ac eum de faldagio praedicto ut praefertur habend ' impedire ac de prosicuo commoditate inde totaliter deprivare diu ante finem termini praedicti ult ' mentionat ' scilicet primo die Maii Anno Regni Domini Jacobi secundi nuper Regis Angliae tertio Oves videlicet ducent ' Oves ipsius Abrahami in Communes Campos de Grancester praed ' ibidem depasturand ' The Cause of Action posuit Oves ibidem eun ' depascend ' extunc usque decimum diem Septembris tunc ê“x ' sequen ' existen ' ante finem termini praedicti ult ' mentionat ' custodivit continuavit sed Oves ill ' in aut super praedictas centum sexaginta acras terrae arrabilis ipsius Roberti vel in aut super aliquam inde parcellam minime faldavit sicut ipse debuisset nec permisit ipsum Robertum habere beneficium faldagii earun-praedicto Abrahamo duran ' eodem termino non existen ' tenen ' For not Folding his Sheep according to Custom sive occupatore aliquorum messuag ' sive terrarum in Villa de Coton praed ' de quibus tenen ' sive occupator ' inde ê“ tempore existen ' a tempore cujus contrarii memoria hominum non existit usi fuer ' intercoicÌ„are Causa vicinagii in praedictis Communibus Campis de Grancester praedict ' cum Ovibus suis praedict ' ut praefertur per quod idem Robertus ê“ficuum advantagium faldagii Ovium praedictorum super praedictas centum sexaginta acras terrae arabil ' quibus ipse gaudere debuisset ê‘ tempus illud omnino ê‘didit amisit ad dampnum ipsius Roberti quadraginta librarum inde ê“duc ' Sectam c. Per quod the Plaintiff lost the benefit of Foldage Et praedictus Abrahamus per Richardum Pyke Attorn ' suum ven ' defend ' vim injur ' quando c. Not Guilty pleaded Et dic ' qd ' ipse in nullo est culpabilis de pÌ„missis praedictis suê‘ius ei imposit ' ê“ut praedictus Robertus su ê‘ius versus eum queritur Et de hic pon ' se suê‘ Patriam Et praedictus Robertus similiter Ideo praecept ' est Vic' qd ' venire fac ' hic a die Sanct ' Trin ' in tres septimanas duodecim c. ê‘ quos c. Et qui nec c. ad recogn ' c. quia tam c. Dickman versus Allen. IN an Action upon the Case the Defendant declared That the Provost and Scholars of Kings College in Cambridge were seised in Fee in jure Collegii of a Messuage in Grancester in Cambridge and 160 Acres of Arable Land lying in the Common Fields of Grancester aforesaid and the said Provost c. and all those whose Estate they have in the Tenements aforesaid have time whereof c. for themselves their Farmers and Tenants of the said Tenements libertatem Foldagii Anglicè Foldage omnium Ovium except c. euntium depascentium infra Communes Campos Territoria de Grancester praed ' super praed ' centum sexaginta Acras Terrae ê‘cipiend ' foldand ' tanquam ad praed ' Tenement ' ê‘ertinent ' and then sets forth a Lease made by the Provost and Scholars to Sir John Witwrong of the said Messuage and 160 Acres for 20 years which said Sir John let them to the Plaintiff for six years by virtue whereof the Plaintiff entred and was possessed and the said Defendant Praemissorum non ignarus did put 200 Sheep into the Common Fields of Grancester aforesaid and there kept and depastured them for a certain time sed Oves illas in aut super praed ' centum sexaginta Acras Terrae Arab ' ipsius Quer ' vel in aut super aliquam inde parcell ' minime foldavit sicut ipse debuisset nec permisit ipsum Querentem habere beneficium faldagii earundem and shews how the Defendant was not within exception by which the Plaintiff lost the profit of the Foldage c. and laid it to his damage of 40 l The Defendant pleaded not guilty and a Verdict was for the Plaintiff And it was moved in Arrest of Iudgment that the Plaintiff had not in his Declaration set forth a sufficient Cause of Action for he saith that the Defendant had not folded his Sheep upon the 160 Acres as he ought and it is not set forth that the Custom was for the Owner of the Sheep to bring his Sheep to fold them upon the said Lands But it was objected on the Plaintiffs part that the word Foldagium did imply as much and it was the usage in Norfolk and Suffolk for the Owner of the Sheep to put his Sheep into the Lords Land and fold them there for which the Lord provided Hurdles and prepared the Fold to receive them and of this Faldagium a Fine was levied of inter al' as is reported in 1 Ed. 3. fo 2. and the usage in Norfolk and Suffolk is there mentioned And it was said in a Possessory Action 't is enough to say sicut debuit without setting forth any particular Custom or Prescription And Dent and Olivers Case was cited 2 Cro. 122. where an Action was brought for disturbing of him in taking of Toll ad Feriam ipsius le Plaintiff spectan ' and it was moved after Verdict that he made no Title by Prescription or Custom to the Toll and it was held by the Court to be sufficient in a possessory Action to say ad Feriam suam spectant ' So also in an Action for stopping of a way belonging to his House without setting forth any Prescription between St. John and Moody a
allocatur After Verdict 2 Cro. 307. Styl 174 182. 2. the Plaintiff declares that he was possessed de quadam equa ut de catallis suis propriis and that catalla praedict ' casualiter perdidit and that coming to the Defendants hands he converted catalla praedict ' to his own use so that there is no express Conversion of the Mare The Court said That the Declaration was Inartificial but good after a Verdict for catalla praedict ' must refer to the Mare for nothing else is mentioned before Tunstall versus Brend IN an Ejectment upon Not guilty a Special Verdict was found upon which there arose several Points of Law but it was moved for the Defendant that the Declartion was of Michaelmass Term 2 Jac. 2. and the Demise is laid to be 30 Octob. 2. Jac. and so after that Term began Note The Declaration recited an Original and an Original was produced Teste 2 Novembris which was after the Demise And the Prothonotary informed the Court that this was frequently allowed and that no Memorandum of the Originals bearing Teste within the Term was used to be made upon the Record Highway versus Derby IN an Action of Trespass Quare clausum fregit solum fundum viz. duas acras terr' fod ' subvert ' asportavit Vpon Not guilty pleaded and Verdict for the Plaintiff it was moved in Arrest of Judgment that the Declaration was insufficient as to the digging and carrying away of the Soyl for duas acras terr' doth not express the quantity of Earth but the measure and extent of the Ground where the digging was And for this Cause the Judgment was stayed by the Opinion of the whole Court Note If the Sheriff Return a Rescous it is not traversable but an Attachment goes against the Rescousers and a Fine usually set Tho' it appears by Dyer such Return was allowed to be traversed in C.B. but not practised of late Termino Sanctae Trinitatis Anno 2 W. M. In Communi Banco Sherborn versus Colebach IN an Indebitat ' assumpsit for 20 l lost by the Defendant to the Plaintiff at a certain Play called Hazard Vpon Non assumpsit after Verdict for the Plaintiff it was moved in Arrest of Judgment that to Play at Dice is an unlawful Game and so the Consideration is insufficient But to that the Court said that they could not intend that this was Play at Dice tho' there is a Play called Hazard at Dice known amongst Gamesters neither is Play at Dice in it self unlawful tho' prohibited by several Statutes to certain persons and to be used in certain places Then it was moved that the Declaration was too General for tho' there have been divers Actions maintained for Money won at Play yet they use to declare that in Consideration the Plaintiff promised That if the Game went on the Defendants side he would pay so much to the Defendant the Defendant promised That if it went on the Plaintiffs side to pay so much to him But the Court said that of late it had been the usage to declare Generally and it might be as well as an Indebitatus pro opere labore And Judgment was given for the Plaintiff Note Justice Powell cited in the Case supra the Lord North's Case 2 Leon. 179. where Queen Elizabeth had granted the Fines to him and his Heirs pro licentia concordandi within a certain place and he brought an Indebitat ' assumpsit for such Fine and it was held that it would lye And also a Case adjudged in the Kings Bench the last Term that an Indebitat ' assumpsit would lye for a Dropping Fine in one Shuttleworth's Case Pyne versus Woolland Civit ' Exon ' Debt for Rent against an Executor upon a Lease parol THomasina Woolland nuper de Civitat ' Exon ' in Com' Civ8788 itat ' Exon ' Vid ' Executrix testament ' Isaaci Woolland sum ' fuit ad respondend ' Mariae Pyne Vid ' de placito quod reddat ei octoginta sex libras duos solid ' un ' denar ' un ' obulum quos ei injuste detinet c. Et unde eadem Maria ê‘ Nathanielem Salter Attorn ' Demise to the Testator suum dic ' quod cum praedicta Maria decimo die Maij Anno Domini Millesimo sexcentesimo octogesimo tertio apud Civitat ' Exon ' praedict ' in Com' ejusdem Civitat ' dimisisset praefat ' Quarta pars molendini c. Isaaco in vita sua quartam partem duorum molendinorum granaticorum unius molendini brasiatorij sub uno tecto Anglicê Roof vocat ' sive cognit ' per nomen de Cuckingstool-Mists scituat ' jacen ' existen ' in Exland in Paroch ' sancti Edmundi in Com' Civit ' Exon ' praedict ' ac quartam partem domus molendin ' sive tenementi cum pertin ' adinde prox ' jacen ' ex boreali latere eorundem necnon quartam partem medietatis pasturae unius parcell ' terrae pone dicta molendina not ' sive cognit ' per nomen de Bonhay eisdem molendinis pertin ' Habend sive pertinen ' habend ' occupand ' eidem Isaaco à primo die ejusdem mensis Maij usque finem terminum unius anni integri extunc prox ' sequen ' plenar ' complend ' finiend ' Pro uno anno Et sic de anno in annum sic de anno in annum quamdiu ambabus partibus placeret reddend ' solvend ' proinde eidem Mariae ad finem cujuslibet mensis secundum computacon ' viginti octo dierum pro quolibet mense quo idem Isaacus eadem dimissa praemissa teneret reddit ' The Rent payable Monthly sexaginta solidor ' quatuor denar ' unius obuli legalis monet ' Angl ' Virtute cujus dimissionis idem Isaacus in quartas partes praedictas intravit fuit inde possessionat ' ac easdem quartas partes usque nonum diem Septembr ' Anno Domini millesimo sexcentesimo octogesimo nono habuit occupavit ac quinquaginta septem libr ' septem solid ' un denar ' un ' obul de praedictis octoginta sex libris duobus solid ' un ' denar ' un ' obul ' parcell ' super eodem nono die Septembris Anno Domini millesimo sexcentesimo octogesimo nono supradicto ê“ reddit ' dimissorum praemissorum pro novem decim mensibus secuncum computacon ' praedict ' adtunc finit ' eidem Mariae aretro fuer ' non solut ' Rent unpaid Actio accrevit per quod accoÌ„ accrevit eidem Mariae ad exigend ' habend ' de praefat ' Isaaco in vita sua de praedict ' Thomasina post ipsius Isaaci mortem praedictos quinquaginta septem libras septem solid ' un ' denar ' un ' obul ' de praedictis octoginta sex libris duobus solidis un ' Another
which it was answered That they were not tyed to the Time but the Place it was ibidem facere Ordinationes and not adtunc ibidem But the Court gave Judgment upon the first Matter Newport versus Godfrey THe Plaintiff brought an Action of Debt in the Detinet against Godfrey Executor of Stephen Turner for 70 l arrear of Rent and declared upon several Demises upon the 28th of September 1685. to the said Turner reserving several Rents of which there became arrear to the Plaintiff in the Life time of the said Turner 70 l and it appeared by the Declaration that the Leases ended in the Life of the said Turner In Bar of which the Defendant pleaded several Bonds entred into by the Testator to divers persons for the payment of Money which he avers to be all for true and just Debts and that he had administred all besides Goods to the value of 40 l which he retained towards satisfaction of the said Bonds c. To which the Plaintiff demurred and it was Argued last Term for the Defendant that a Debt upon a Specialty was to be preferred before Debt for Rent upon a Lease parol Styl Rep. 61. Rolls said that a Specialty was of an higher nature than Rent reserved upon a Lease by Deed. Indeed it is made a Quaere in Roll. Abr. 1. part 927. but if Rent should be preferred where the Lease was continuing after the Death of the Testator in regard the Testator's Goods are liable to be distrained for it which the Executor cannot withstand Yet there is not the like Reason when the Lease expires in the Life of the Testator and the Case was adjourned to this Term for the Iudgment of the Court. And the whole Court were of Opinion that Judgment should be for the Plaintiff For tho' the Lease be determined yet the Debt still savours of the Realty and is maintained in regard of the Profits of the Land received insomuch that no Wager of Law lies in Debt for Rent tho' brought after the Lease determined A Bond given for Rent will not drown it 11 H. 4. 75. b. an Action lies against the Executors of an Assignee of a Lease for Rent in the Testator's time and yet the Assignee is chargable only in respect of the Lease Vid. 13 H. 4. 1. a. Office of Executors 209 210 211 c. Godfrey versus Ward IN an Action of Debt for Rent The Defendant pleaded the Statute of Limitations and that Causa Actionis praedicte c. accrevit above six years before the Writ brought To this the Defendant demurred and the Cause of the Demurrer was upon the late Statute for reviving of Process anno primo Willielmi Mariae by which it is provided in regard there was an Interruption of the Government and proceedings of Law from the 11th of September 1688. to the 13th of February following that the time within those Days should not be accounted as any part of the six years to barr an Action by the Statute of Limitations or of the six Months for bringing a Quare Impedit c. so as it was urged that the Defendant should have shewn that six Years and so many Days were elapsed as are between the 11th of December and the 13th of February For tho' six years may be passed yet the Plaintiff may be within time by reason of the said Statute But the Court were of Opinion that the Defendants Plea was well and this should be shewn of the Plaintiffs part for the Statute does not alter the Form of Pleading but that shall be as it was before and the Plaintiff if the Matter will bear it is to help himself upon the said Statute The old way upon the Statute of Limitations was for the Defendant to plead the Statute at large but of late years the General Pleading of Non assumpsit infra sex annos has been allowed Warren versus Sainthill Devon ' ss SAMUEL SAINTHILL nuper de Bradmuch in Com' praedict ' Armig ' Johannes Savery nuper de Bradmuch in Com' praedict ' Husbandnian attach ' fuer ' ad respondend ' Thomae Warren gen ' de placito Transgr ' super Casum c. Case for stopping up of a Foot way The Plaintiff says That was possest he and Inhab of in an ancient Messuage And that habuit habere debuit a Foot-way for himself and his Servants Et unde idem Thomas per Johannem Prowse Attorn ' suum Queritur quod cum praedict ' Thomas vicesimo nono die Septembris anno regni domini Regis dominae Reginae nunc primo continue postea usque primum diem Januarii tunc ê“x ' fequen ' fuit possessionat ' inhabitans de in quodam antiquo Mesuagio scituat ' jacen ' in villa de Watterstaffe infra paroch ' de Bradmuch praedict ' ac ê“ totum tempus ill ' quandam viam pedestrem ducen ' à Villa de Watterstaffe praedict ' in per trans quaedam Clausa voc ' Crollands Smiths Down and Tulver Park infra paroch ' de Bradmuch praedict ' usque ad villam de Bradmuch in Bradmuch praedict ' pro se servientibus suis ad eundem redeund ' omnibus temporibus ad libitum ejus tanquam ad Mesuag ' As belonging to his Messuage praedict ' spectan ' pertinen ' habuit de jure habere debuit praedicti Samuel ' Johannes machinan ' intenden ' ipsum Thomam minus rite perturbare ipsum de via praed ' impedire deprivare praedict vicesimo nono die Sept ' Anno primo supradicto apud paroch ' de Bradmuch quaedam Fossa Trencheas ex transverso viae praedict ' The Defendant to disturb him in the Way dug Ditches and Trenches cross the Way And erected Hedges and Fences cross it Whereby he was hindred of his Way in t ' Villas de Watterstaffe Bradmuch praedict ' fodier ' fecer ' ac etiam viam ill ' ibedem cum quibusdam sepibus fensuris ex transverso viae praedict ' eject ' obstruxer ' praecluser ' per quod idem Thomas à via praedict ' in forma praedict ' habend ' à praedict ' vicesimo nono die Septembris usque praed ' primum diem Januarii Anno primo supradicto penitus impedet ' deprivat ' fuit ad dampnum ipsius Thomae quadragint ' librar ' Et inde ê“ducit sectam c. To this the Defendant pleaded a frivolous Plea and the Plaintiff demurrs and the Defendant joyned in the Demurrer and Judgment was given for the Plaintiff Warren versus Sainthill IN an Action upon the Case for Stopping of a Way the Plaintiff declared that he was possessed and an Inhabitant of and in a certain ancient Messuage the 29th of Sept. in the first year of the now King and Queen and so continued to the first day of January then next following and for all that time had a Foot-way over the Defendant's
Delivery thereof covenant and agree with the Defendant That so long as the Defendant and the said Sarah should Cohabit he should be saved harmless from the said 300 l Annual payment and that it should be lawful for him during such Cohabitation to detain the same ut per dictam Indenturam plenius apparet and averreth That ever since the last mentioned Indenture they did Cohabit and demands Judgment of the Action The Plaintiff Replies That they did not Cohabit modo forma prout the Defendant placitando allegavit hoc petit quod inquirat ' c. And to that the Defendant Demurred Birch Serjeant Argued for the Defendant That this latter Indenture which sets forth a mutual Agreement to Cohabit and that they did Cohabit which is alledged in the Bar and confessed by the Demurrer had dispensed with those Circumstances viz. A Writing mutually Subscribed arrested by two Witnesses giving Notice of each parties Intention so to Cohabit and this Covenant That it should be lawful for the Defendant to detain the same so long as such Cohabitation should continue as is therein mentioned might well be pleaded in Bar to the Action brought upon the first Indenture But by the Opinion of the whole Court Iudgment was given for the Plaintiff for they held that unless the Cohabitation had been according to the first Indenture it was no Bar for the last Deed had not taken away the effect of the former a latter Covenant cannot be pleaded in Bar of a former But the Defendant must bring his Action upon the last Indenture if he would help himself Anonymus A Fieri facias was taken out which was executed after the party was Dead upon the Goods in the hands of the Executor but the Teste was before his death But it appeared that the Delivery to the Sheriffs and Endorsment thereupon according to the New Statute of 29 Car. 2. was after his Death The Court held that at the Common Law the Execution had been clearly good But the Statute is that the property of the Goods shall be bound but from the delivery of the Writ to the Sheriff And the Court rather inclined that the Execution was good and that the Statute was made for the benefit of Strangers who might have a Title to the Goods between the Teste of the Writ of Execution and the time of the delivery thereof to the Sheriff But as to the party himself the Goods were bound from the Teste ever since the Statute of Vicesimo nono Car. 2. But it was Ordered to be further spoken to Watmough versus Holgate Eborum ss WILLIELMUS HOLGATE nuper de Sawley in Com. praedict ' Yeoman alias dictul Williel ' Debt upon a Bond. Holgate de Sawley in Com' Eborum Yeoman sum̄ fuit ad respondend ' Roberto Watmough Radulpho Duxbury Willelmo Swire de placito quod reddat eis quadraginta libras quas eis debet injuste detinet c. Et unde ijdem Robertus Radulphus Willielmus Swire per Robertum Scater Attorn ' suum dic ' quod cum praedict ' Willielmus Holgate secundo die Augusti anno regni domini Regis Jacobi secundi Angl ' c. quarto apud Gisborne per quoddam scriptum suum obligatorium concessisset se teneri praefat ' Roberto Radulpho Willielmo Swire in praedictis quadraginta libris solvend ' eisdem Roberto Radulpho Willelmo Swire cum inde requisit ' fuisset praed ' ramen Willielmus Holgate licet saepius requisit ' praedict ' quadraginta libras eisdem Roberto Radulpho Willielmo Swire nondum reddidit set ill ' ei hucusque reddere contradixit adhuc contradict unde dic ' quod deteriorat ' sunt dampn ' habent ad valenciam viginti librar ' Et inde produc ' sectam c. Et proferunt hic in Cur ' scriptum praedict ' quod debitum praedict ' in forma praedicta testatur cujus dat' est die anno supradicto c. Et praedictus Willielmus Holgate per Johannem Mitchel Attorn ' The Defendant craves Oyer of the Condition suum ven ' defend ' vim injur ' quando c. Et pet ' auditum scripti praedicti ei legitur c. petit etiam auditum Condiconis ejusdem scripti ei legitur in haec verba ss The Condition of this Obligation is such That if the above-bounden William Holgate Which is for the performance of an Award his Heirs Executors and Administrators for his and their parts and behalves shall and do in all things well and truly stand to obey abide perform fulfil and keep the Award Order Arbitrament final End and Determination of Ambrose Pudsey of Colton Esquire and Thomas Parker of Crouseholme Esquire Arbitrators indifferently elected and named as well on the part and behalf of the above-bounden William Holgate as of the above-named Robert Ralph and William Swire to arbitrate award order judge and determine of and concerning all and all manner of Action and Actions Cause and Causes of Actions Suits Bills Bonds Specialties Iudgments Executions Extents Quarrels Controversies Trespasses Damages and Demands whatsoever at any time heretofore had made moved brought commenced sued prosecuted done suffered committed or depending by or between the said parties so as the said Award be made and put into writing and ready to be delivered to the parties in difference or such of them as shall desire the same on or before the Eleventh day of November next then this Obligation to be void or else to stand in force The Defendant pleads That the Arbitraters made no Award Quibus lectis auditis idem Willielmus Holgate dic ' quod praedict ' Robertus Radulphus Willielmus Swire acconem suam praed ' inde versus eum habere non debent quia dic ' quod praedict ' Ambrosius Pudsey Thomas Parker Arbitratores praedict ' post confecconem scripti praedicti ad vel ante praedict ' undecim ' diem Novembr ' in Condicone scripti praedicti menconat ' nullum fecer ' arbitrium in t ' partes praedict ' in Condicone praedict ' superius menconat ' de in praemissis in Condicone praedict ' superius spec ' Et hoc parat ' est verificare unde pet ' Judic ' si praedict ' Robertus Radulphus Willielmus Swire acconem suam praedict ' inde versus eum habere debeant c. The Plaintiff Replies and sets forth the Award Et praedict ' Robertus Radulphus Willielm ' Swire dic ' quod ipsi per aliqua per praefat ' Willielm ' Holgate superius placitando allegat ' ab accone sua praedicta versus eum habend ' praecludi non debent Quia dic ' quod praedicti Ambrosius Pudsey Thomas Parker Arbitratores in Condicone praedict ' superius nominat ' accepetis super se onera arbitrandi in t ' partes praedict ' de super praemissis in Condicone praedicta superius
saepius requisit ' praedict ' Centum libr ' eidem Judithae nondum reddidit set ill ' ei hucusque reddere contradixit adhuc contradic ' Unde dic ' quod deteriorat ' est dampn ' habet ad valenc ' decem libr ' Et inde produc ' sectam c. Et profert hic in Cur ' scriptum praedict ' quod debitum praedict ' in forma praed testatur cujus dat' est die anno supradictis c. Et praedict ' The Defendant craves Oyer of the Condition Samuel per Johannem Empson Attornatum suum venit defendit vim injuriam quando c. Et petit auditum Scripti praed ' ei legitur c. pet ' etiam auditum Condiconis ejusdem scripti Et ei legitur in haec verba The Condition is for the performance of an Award The Condition of this Obligation is such That if the above-bounden Samuel Liversedge his Heirs Executors and Administrators for their parts and behalves shall and do in all things well and truly stand to obey abide perform fulfil and keep the Award Order Arbitrament final End and Determination of Edward Deane of Batley in the County of York Clerk and Robert Radcliffe of Adwalton in the said County Gent. Arbitrators indiffâ—rently elected and named as well on the part and behalf of the above-named Samuel Liversedge as of the above-named Judith Hanson to arbitrate award order judge and determine of and concerning all and all manner of Action and Actions Cause and Causes of Actions Suits Bills Bonds Specialties Iudgments Executions Extents Quarrels Controversies Trespasses Damages and Demands whatsoever at any time heretofore had made moved brought commenced sued prosecuted done suffered committed or depending by or between the said parties or either of them so as the said Award be made and in Writing or by Words of Mouth and ready to be delivered to the parties in difference or such of them as shall desire the same on or before Seven of the Clock in the Afternoon of this present Day then this Obligation to be void or else to remain in full force and virtue The Defendant pleads That the Arbitrators made no Award Quibus lectis audit ' â—idem Samuel dic ' quod praed ' Juditha accon ' suam praed ' vers cum habere non debet Quia dic ' quod Arbitrator ' praedict ' post confeccon ' Scripti praedict ' ante praed ' Septimam horam post Meridiem praed ' vicesimi quinti diei Julij Anno Domini Millesimo sexcentesimo octogesimo nono supradicto nullum fecer ' Arbitrium in t ' ipmÌ„ Samuel ' praefat ' Judith ' de super praemissis in Condicone praedict ' superius specificat ' Et hoc parat ' est verificare Unde pet ' Judicium si praedict ' Juditha accon ' suam praedict ' versus eum habere debeat c. The Plaintiff sets forth an Award made Ore tenus Et praedict ' Juditha dic ' quod ipsa per aliqua praeallegat ' ab accone sua praedict ' habend ' praecludi non debet quia dic ' quod ipsa eadem Juditha diu ante confeccon ' scripti praed scilicet Termino Sanctae Trin ' The Plaintiff impleaded the Defendant in the Common Bench. anno regni domini Regis dominae Reginae nunc primo in Cur ' ipsorum Rigis Reginae de Banco hic scilicet apud Westm ' in Com' Midd ' implacitasset ipsum Samuel ' in quodam placito Transgr ' super Casum pro eo quod idem Samuel ' dixiss de praefat ' Juditha diversa scandalosa Anglicana verba Quod quidem placitum tempore confecconis ejusdem scripti fuit penden ' indeterminat ' quodque Arbitrator ' praedict accept ' super se onere Arbitrij praedict ' immediate post confeccon ' scripti illius scilicet praedict ' Vicesimo quinto die Julij Anno Domini Millesimo sexcentesimo octogesimo nono supradicto ante Septimam horam post Meridiem ejusdem diei apud Wakefield praedict ' The Award made Ore tenus Arbitrium suum ore tenus de super praemissis in Condicone praed ' superius menconat ' fecer ' publicaver ' ac partibus praedict ' ibidem ante horam illam declaraver ' modo forma sequen ' videlicet quod pÌ„d ' Samuel solveret eidem Judithae duodecim pecias Aurij cuneat ' vocat ' Guinea's ac omnes tal ' denar ' summ ' qual ' eadem Juditha erogasset seu expendisset in circa prosecucon ' plac ' praed ' quodque immediate post hujusmodi solucon ' alt ' tam praedicta Juditha quam praedict ' Samuel ' daret alteri eorum per scriptum general ' relaxacon ' omnium Accon ' causar ' Accon ' demand ' quorumcunque usque praedict ' tempus confecconis Scripti praedict ' inter eos moven ' Et eadem Juditha ulterius dic ' quod tempore confecconis scripti Obligatorij praed ' Arbitrij praedicti quaelibet pecia hujusmodi Auri vocat ' Guine'as se attingebat in valore ad viginti un ' solid ' sex denar ' quodque adtunc ac praed ' tempore confeccon ' Arbitrij praed ' praedicta Juditha erogavit expendidit in circa prosecucon ' placiti praed ' summam undecim libr ' septem solid ' septem denar ' videlicet apud Wakefield praed ' Unde praed ' Samuel ' postea scilicet primo die Augusti anno regni Regis Reginae hunc primo apud Wakefield praed ' Notice of the Award habuit noticiam posteaque scilicet vicesimo die ejusdem Augusti apud Wakefield praedict ' eadem Juditha requisivit eundem Samuel ' ad solvend ' eidem Judithae tam praedict ' And requested the performance of it duodecim pecias Auri vel valor ' inde quam praedict ' undecim libr ' seprem solid ' septem denar ' protestando autem quod praedict ' Samuel non solvit eidem Judithae praedict ' summam undecim libr ' septem solid ' septem denar ' In facto eadem Juditha dic ' quod praedict ' Samuel non solvit eidem Judithae praedict ' duodecim pecias Auri cunat ' vocat ' Guinea's seu valor ' inde juxta forma effectum Arbitrij illius Et hoc parat ' est verificare Unde pet ' Judicium debitum suum praed ' unacum dampnis suis occone detenconis debiti illius sibi adjudicari c. Et praedict ' Samuel dic ' quod praedict placitum praedict ' Demurrer to the Replication Judithae superius replicando placitat ' ac materia in eodem content ' minus sufficien ' in lege existunt ad praedict ' Judith ' ad accon suam praedict ' versus ipmÌ„ Samuel ' habend ' menutenend ' quodque ipse ad placitum illud modo forma praed ' replicat ' necesse
may be sold Noell versus Robinson THe Plaintiffs Father being seised in Fee of a Foreign Plantation devised it to the Plaintiff and made the Defendant Executor The Executor let it for years reserving Rent in Trust for the Plaintiff who now Exhibited his Bill to have his Rent The Defendant Confessed the Devise of the Testator and the Lease made by himself but said That great Losses had fallen upon the Testator's Estate and that he paid and secured which is payment in Law for the Debts of the Testator to â— great value and that he hoped he should be permitted to reimburse himself by the receipt of this Rent notwithstanding the mentioning of the Trust as aforesaid The Cause came to Hearing and the Court Decreed for the Plaintiff For altho' a Legatee shall refund against Creditors if there be not Assets and against Legatees all which are to have these proportion where the Assets fall short yet the Executor himself after his Assent shall never bring the Legacy back But if he had been sued and paid it by the Decree of this Court the Legatee must have refunded as if a Debtor to a Bankrupt pays him voluntarily he must pay him over again Otherwise of payment by Compulsion of Law Note My Lord Chancellor said That if they give Sentence for a Legacy in the Ecclesiastical Court a Prohibition lies unless they take Security to Refund Note also in this Case that tho' it be an Inheritance yet being in a Foreign Country 't is looked upon as a Chattel to pay Debts and a Testamentary thing It was Objected That this could not be taken for an Assent for if so how could the Executor let it But the Court said that it did tantamount to an Assent and being a lawful Act a little matter will be taken for an Assent Anonymus A Bill was Exhibited by the Assignees of Commissioners of Bankrupts to have an Account against the Defendant of the Bankrupts Estate The Defendant pleaded that he was but Servant to the Bankrupt and had given an account of all to his Master and likewise had been Examined before the Commissioners upon the whole Matter Vpon Hearing his Plea my Lord Chancellor Over-ruled it and Ordered that he should Answer Anonymus IF a man makes a Lease or devise an Estate for Years he being seised of an Estate of an Inheritance for payment of Debts if the Profits of the Lands surmount the Debt all that remains shall go to the Heir tho' not so exprest and albeit it be in the case of an Executor Barney versus Tyson THe Case was thus The Plaintiff in the Life of his Father being about 26 years of Age and having occasion for Money prevails with the Defendant to let him have in Wares to the value of 400 l and gives him Bond for 800 l to be paid if he survived his Father at which time an Estate would befall him of 5000 l per Annum and he having survived his Father he preferred his Bill against the Defendant to compel him to take his Principal Money and Interest And it was proved in the Case that the Defendant was Informed at the time of this bargain that the Father was ill and not like to live and he did live but a year and half after and that one Stisted a man very Infamous was employed in the transaction of this Bargain And the Plaintiff obtained a Decree in the time of the Lord Chancellor Fynch And now upon a Petition to the Lord Keeper North the Defendant obtained a Re-hearing And in maintenance of the Decree it was alledged that the hazard which was run was very little and such Bargains with Heirs were much to be discountenanced The Lord Keeper affirmed the Decree but said that he would not have it used as a President for this Court to set aside mens Bargains But this Case having received a Determination and the Defendant having accepted his Principal Money and Interest thereupon and there being only a slight Omission in the Enrolment of the Decree which if it had been done had prevented a Re-hearing and the Defendant having delayed his Application to him by Petition he would not now set the Decree aside Termino Paschae Anno 35 Car. II. In Cancellaria Hodges versus Waddington THe Case was thus An Executor wasted the Testator's Estate and made his Will wherein he devised divers of his own Goods and made his Son Executor Afterwards a Suit was commenced against the Son to bring him to an Account for the Estate of the first Testator which was wasted and pending that Suit the Son after the Bill brought against him by the Legatee of his own Goods delivered them to the Legatee and assented to the Legacy After which upon the Account against the Son it appeared that the first Executor had wasted the Goods of the first Testator to such a value And then the party at whose Suit the said Account was and who was to have the benefit thereof together with the Son and Executor of the first Executor preferred a Bill against the Legatee of the Goods to make him Refund and obtained no Relief especially for that he had made the Executor Plaintiff who should not be admitted to undo his own Assent But liberty being given to bring a New Bill against the Legatee and the said Executor the Cause came to Hearing and it was Decreed That the Legatee should Refund So that one Legatee that is paid shall not only Refund against another but a Legatee shall Refund against a Creditor of the Testator that can charge an Executor only in Equity viz. Upon a wasting by the first Executor But if an Executor pays a Debt upon a Simple Contract there shall be no Refunding to a Creditor of an higher Nature Note also The Principal Case went upon the Insolvency of the Executor Anonymus A Bill was brought setting forth a Deed of Settlement of Lands in Trust and to compel the Defendant who was a Trustee therein nominated to Execute an Estate The Defendant by Answer says That he believed that there was such a Deed as in the said Bill is set forth c. And upon the Hearing they would have read a Deed for the Plaintiff tho' not proved but upon a Commission taken out only against another Defendant to the Bill supposing it to be Confessed by the Answer But the Court would not permit the Reading of it for the Confessing goes no further than what is set forth in the Bill and will not warrant the Reading of a Deed produced altho' it hath such Clauses in it Anonymus A Bill was preferred against one to discover his Title that A.B. might be let in to have Execution of a Judgment The Defendant pleaded That he was a purchaser for a valuable Consideration but did not set forth That he had no Notice of the Judgment And it was Over-ruled for 't is a fatal Fault in the Plea Bird versus Blosse THe Case was thus One wrote a Letter signifying
if it were Repaired be it by any Body the Plaintiff hath no Damage nor cause of Action But Twisden doubted and afterwards the parties waived their Demurrer and went to Issue Anonymus AN Information was brought upon the Statute of Usury for taking the 30th of May in the 20th year of the King 42 s pro deferendo 25 l for three Quarters of a year viz. from the 30th of August Anno 19. Vpon Not Guilty pleaded it was found for the King and moved in Arrest of Judgment that this was not within the Statute which extends only where there is an Usurious Contract in the beginning and there it makes the Security void Or if there be an Agreement after the Money lent for Forbearance upon Consideration of paying more than the Statute allows for Interest which is punishable in an Indictment or Information but the Money is not lost But in this case the time of Forbearance was past and the party might give what he pleased in recompence for it there being no precedent Agreement to enforce him to it Sed non allocatur For the Court said They would expound the Statute strictly and if liberty were allowed in this case the Brokers might oppress the People exceedingly by detaining the Pawn unless the party would give them what they would please to demand for the time after failure of payment Wingate and Stanton the Bail of William Stanton IT was Resolved That where a Scire facias goes against the Bail in this Court an two Nichils are Returned and Judgment is had thereupon no Writ of Error can be brought in the Exchequer Chamber but in the Parliament only Also after such a Return it cannot be Assigned for Error that there was no Capias awarded against the Principal But in that case the Bail is relievable only by Audita querela But if the Sheriff Returns a Scire feci they may plead it Fitz. N.B. 104. I. Nota A man cannot Release a Debt by his Will The King versus Saunders SAunders was Convicted before two Justices upon the Statute of 32 H. 8. cap. 6. for carrying of a Gun Which being removed by Certiorari was quashed because it was coram nobis Justiciariis Domini Regis ad pacem suam conservand ' wanting the word assignatis Anonymus AN Indictment was quashed because it was Justiciarii ad pacem conservand ' assign ' and not ad pacem Domini Regis neither would ad pacem publicam serve And for another Reason because it was ad Sessionem in Com' tent ' and not pro Com' But if it were ad Sessionem in a Borough Incorporated it were good tho' it were not pro Burgo Maleverer and Redshaw DEbt upon a Sheriffs Bond The Defendant pleads that there was an Attachment issued out of Chancery against him Returnable Octab ' Sanctae Trin ' and the Condition of this Bond was that he should appear Crast Sanctae Trin. and so he pleads the Statute of 23 H. 6. against it for that it was taken for Easiamento favore The Plaintiff Replies That the Writ was Returnable Crastino Sanctae Trin. And Traverses That the Bond was taken for ease and favour To which the Defendant demurs Vid. 11 Co. 10. a. supposing that he should have Traversed that the Writ was Returnable Octab. Sanctae Trin. which is the Matter of the Defendants Bar and the other is but the consequence or Conclusion Et Adjornatur Gregory versus Eades ERror to Reverse a Judgment given in an Inferiour Court where an Assumpsit was brought and the Plaintiff declared upon three several Promises and the Jury found two for him and the other non Assumpsit And Judgment was given for the two that he should recover but no Judgment for the third that he should be amerced pro falso clamore or that the Defendant eat inde sine die And for this Cause Error was assigned But Powys Argued for the Defendant in the Writ of Error that the Judgment should be affirmed as to the Two Promises for which it was perfect and cited Miles and Jacob's Case in Hob. 6. and 2 Cro. 343. where an Action was brought for Words declared to be spoken at several times and several Damages given and Judgment and a Writ of Error brought and assigned for Error that the Words spoken at one of the times were not Actionable which tho' they were not yet the Judgment was Reversed quoad them only But the Court said That it was not like this Case for here the Judgment was altogether Imperfect and so were inclined to Reverse it but gave further time Ante. Anonymus IN Replevin the Defendant avows for Rent Arrear Vpon non concessit pleaded the Jury find for the Avowant The New Statute says That the Defendant may pray that the Jury should enquire what Rent is arrear and that he shall have Judgment for so much as they find Now the Court was moved that this might be supplied by a Writ of Enquiry as if they omit to enquire of the Four Points in a Quare Impedit it may be so supplied 10 Co. Cheney's Case But the Court held this could not be so for the Defendant loseth the advantage of it by not praying of it As where a Tales is granted if it be not Entred ad requisitionem Querentis or Defendentis it is not good wherefore he was bid to take his Judgment quod returnum habeat averiorum at the Common Law Anonymus FOur Executors two of them are under Age quaere Whether they shall all sue by Attorney Note An Infant may bring an Action against his Guardian which pleads any thing to his prejudice Not so of an Attorney Wells versus Wells IN an Assumpsit the Plaintiff declares as Administratix to her Husband who in his Life-time agreed with the Defendant That they should be Partners in making of Bricks for J. S. and after his Death the Defendant promised the Plaintiff in Consideration That she had promised him to relinquish her Interest in the Partnership that he would pay her so much Money as her Husband had been out about the Brick And upon non Assumpsit pleaded it was found for the Plaintiff It was moved in Arrest of Judgment that here was no Consideration for the Plaintiff had no interest in the Partnership which being joynt must survive to the Defendant and she ought to have shewn how she relinquished her Interest But the Court held it a good Consideration for it may be there were Covenants that there should be no Survivorship and the Court will intend after a Verdict that there were which tho' they do not sever the joynt Interest in Law yet they give Remedy in Equity which to debar her self of is a good Consideration and being laid by way of Reciprocal Promise there needs no averment of performance Termino Sancti Michaelis Anno 21 Car. II. In Banco Regis William Bate's Case A Prohibition was prayed to the Commissary of the Archdeacon of Richmond to stay a Suit
at the end of the said term and so the said Defendants broke the Covenants ad damnum of the Plaintiff 300 l The Defendant pleaded that the said Richard Cale in his life-time did demolish the three Houses demised and upon the ground whereon they stood did erect three new Houses according to the agreement which during the term were kept well repaired and at the end of the term left in good repair and so yielded up according to the Covenant aforesaid de hoc ponit c. And as to the not repairing the Pavements traverseth that also and the like as to repairing of Tiles and Walls The Plaintiff as to the not repairing of one House in the Declaration mentioned and delivering it up well repaired demurs to the Defendants Plea which Demurrer came to be argued this Term and the sole question was upon this Covenant whether the Defendant being obliged only to build three Houses and having built one more whether the Covenant did not bind him to repair and deliver up that House well repaired as well as those which were agreed to be built And the Court were of Opinion that the Covenant did extend to the other House as well as to the three which were agreed to be built For in the last Covenant which is to deliver up well repaired 't is dicta premissa ac Domos Edificia superinde fore erect which is general and 't is the rather so to be taken because in the first Covenant for keeping in repair during the term 't is the Houses agreed to be built which words agreed to be built are left out in the last Covenant which the Court took to be a distinct Covenant Rokeby doubted it seeming to him to be all as one Covenant and so all the subsequent matter concerning leaving the Houses well repaired should be restrained and understood of those agreed to be built But Iudgment was given for the Plaintiff upon the reasons aforesaid It was also objected on the part of the Defendant that Dowse the Plaintiff was not an Assignee in this Case to bring Covenant for that the term in the reversion was devised to him for Life only and if he died within the Term then to his first Son c. To this it was answered that the Devise of the term to him passed the whole Estate and the remainder to the Son was but a possibility and an executory Devise Welbie versus Phillips IN Debt for Rent the Plaintiff declared upon a Demise made the 25th of March Anno nuper Regis Jac. 4. of one Messuage to hold from thenceforth quamdiu ambabus partibus placeret yielding 10 l Rent quarterly and avers that the Defendant entered by virtue of the said Demise and continued possessed of the Premisses till Christmas then next following and for 50 s a quarters Rent ending at the said Christmas Day he brings his Action and so lays two several other Demises of two other Houses to begin at the same time under the same Rent and demands a quarters Rent upon each at Christmas aforesaid in all 7 l 10 s which the Defendant did not pay which he lays ad damnum 5 l The Defendant demurred to this Declaration for that he sues for a quarters Rent upon each Demise ending at Christmas whereas there were two quarters incurred before which he doth not shew were paid and so sues for less than upon his own shewing appeareth to be due and the Case of Baily and Offord 3 Cro. was cited where upon a Demise rendring 31 s per annum at our Lady Day and Michaelmas the Plaintiff declared for 15 s and 6 d due for a years rent ending at our Lady Day and held naught because he demands but 15 s and 6 d and doth not shew that the rest of the years Rent was satisfied and the Case of Clothworthy in 3 Cro. where in a Writ of annuity the Plaintiff demanded the Arrears incurred at Michaelmas 3 Car. 1. and brought his Writ the 16th of April 4 Car. 1. and said in that Case by Maynard that a man cannot bring an Action for part of a Debt without he shews the rest satisfied Vide 2 Cro. 499. But the Court gave Iudgement for the Plaintiff and said this was not like the Cases cited for in the first Case of Baily the whole years Rent is said to be due and yet demands but half a year And for the Case of Clothworthy there the Iudgment as appears by 3 Cro. and Ro. Abr. 1 part 229. was that he should recover the Arrears before the Writ and pending the Writ whereas he demanded the Arrears but to Michaelmas before the Writ brought and so the Iudgment was for more than was demanded but in this Case every quarters Rent is a several Debt and distinct Actions may be brought for each quarters Rent and so not like Debt brought for part of the Mony upon a Bond or Contract Vide for this 7 H. 6. 26. a. Allen 57. Noy's Rep. 45. Chase versus Sir James Etheridge THe Plaintiff in an Action for Words had taken out an Original and delivered a Declaration which the Defendant upon searching for the Instructions given by the Plaintiff to the Cursitor found differed in divers material things from the Original and thereupon the Defendant pleaded the Statute of Limitations that the words were not spoken within two years The Plaintiff suspecting some miscarriage had been upon which the Defendant as he conceived did rely for the Plaintiff knew the Fact would not serve the Defendant to plead the Statute he found that he had mistaken his Original and upon that petitions the Master of the Rolls for another Original that should warrant the Declaration delivered and had it granted and filed in Court whereupon the Defendant moved the Commissioners of the Great Seal and shewed the whole matter upon which they set aside the Order of the Master of the Rolls and ordered an Original to be taken out according to the first Instructions given to the Cursitor And now the Court was moved here that the last Original might be filed and so it was ordered by the Court for that taken out by the Order of the Master of the Rolls was unduly taken out Whitaker versus Thoroughgood BEnjaminus Thoroughgood Mil. attach fuit per breve Domini Regis Dominae Reginae de privilegio è Cur. hic emanen ad respond Edwardo Whitaker Gen. un Attorn Cur. Domini Dominae Regis Reginae de Banco juxta libertat privileg ejusdem Cur. pro hujusmodi Attorn aliis Ministris de eodem Banco a tempore quo non extat memoria usitat approbat in eadem Cur. de placito transgressionis super casum c. and so declares in propria persona in an Action for that the Defendant being a Justice of Peace in the time of the late King James made a Warrant directed to the Constable charging the Plaintiff with being outlawed of High-Treason ubi re vera c.
The Defendant demurred and shewed for Cause that in the prescription for the Priviledge it was tempore quo non extat memoria which was said to be insensible and the course in pleading was to say a tempore cujus contrarium memoria hominum non existit Sed non allocatur for the Court took the words to be sufficiently expressing time out of mind and divers Presidents are in this manner Rastalls Entries 475 476 and 143. Shipley versus Craister IN an Action of Debt upon a Bond of 80 l the Plaintiff declared that the Defendant entred into a Bond to him who was then the Sheriff of Northumberland by the name of his Office of 80 l The Defendant demanded Oyer of the Condition which was that one Jenkin Wood should appear coram Dom. Rege apud Westm die Lunae proxime post Octab Pur. c. and then he pleaded a Release of all Demands under the Plaintiffs Hand and Seal made to him bearing date the 9th day of March in the third year of the raign of the late King James profert hic in Cur. the Release And to this the Plaintiff demurred Serjeant Jefferson offered to argue that this Bond being taken by the Sheriff according to the duty of his Office and for the benefit of the Plaintiff who brought the Action that his Release to the Obligor would not bar this Action but the Court said there was no colour but it should be a good bar But upon perusing of the Record it appeared that the Defendant had pleaded that the Plaintiff had released by his Deed of Release bearing date the 9th day of March whereas the Release produced in Court bore dath the 19th of the same March and this the Court held a material variance Note The King cannot discharge a Recognizance taken for Security of the Peace but after 't is broken he may 11 H. 7. 12. Holland versus Lancaster ss JOHANNES LANCASTER sumÌ„ fuit ad respondend ' Count in Replevin Thomae Holland de placito quare cepit averia ipsius Thomae ea injuste detinuit contra Vad ' Pleg ' c. Et unde idem Thomas ê‘ Robertum Bird Attorn ' suum queritur qd ' praed ' Johannes vicesimo secundo die Octobris Anno Regni Domini Jacobi secundi nuê‘ Regis Angl c. tercio apud Mounckton in Insula de Thanett in quodam loco ibidem vocat ' le Barnyard cepit averia videlicet octo Vaccas ipsius Thomae ea injuste detinuit contra vad ' pleg ' quousque c. Unde dic ' qd ' deteriorat ' est dampnum habet ad valenc ' decem librarum Et inde ê“ducit sectam c. Conuzance as Bailiff to the Dean and Chapter of Canterbury for a Distress for a Fine upon an Alienation Dean and Chapter seised of a Mannor in Fee in jure Ecclesiae Et praed ' Johannes Lancaster per Brian ' Courthop Attorn ' suum ven ' defend ' vim injur ' quando c. Et ut Ballivus Decani Capitalis Ecclesiae Cathedral ' Metropolitan ' Cantuar ' bene cognoscit captionem averiorum praedictorum in praedict ' Clauso in quo c. juste c Quia dic ' qd ' diu ante praedict ' tempus captionis averiorum praed ' ac eodem tempore quo c. praed ' Decanus Capital ' fuer ' seisit ' de Manerio de Mounckton cum pertin ' in Com' Kanc ' praed ' in dominico suo ut de feodo in jure Ecclesiae suae praedict ' Qd'que quidam Johannes Sabine Barronettus diu ante praed ' tempus quo J. S. seized in Fee of the locus in quo c. suit seisit ' de tribus Mesuagiis quatuor Horreis centum quadraginta Acris terrae octogint ' acris marisci cum pertin ' in Parochiis de Mounckton sancti Nicholai Atwade in Insula Thanett in Com' Kanc ' praed ' unde praed ' Clausum in quo c. est praed ' tempore quo And held it of the Dean and Chapter By fealty and Rent and Suit of Court c. necnon a tempore cujus contrar ' memoria hom ' non existit suit parcel ' in dominico suo ut de feodo illa tenuit de eisdem Decano Capitalo ut de Manerio suo praed ' per fidelitat ' reddit ' sex librar ' duorum solidorum sex denar ' un ' oboli singulis annis ad Festum Sancti Michaelis ArcÌ„hi solvend ' per servicium faciend ' sectae ad Cur ' ipsorum Decani Capituli Manerii sui praedict ' de tribus septimanis in tres septimanas apud Manerium ill ' The Dean and Chapter seized of the Services tenend ' de quibus quidem serviciis iidem Decanus Capitalus fuer ' seisit ' per manus praefat ' Johannis Sabine ut per manus veri tenentis sui videlicet de fidelitate secta Cur ' praedict ' ut de feodo jure ac de reddit ' praed ' in dominico suo ut de feodo Et praedict ' Johannes Lancaster ulterius dic ' A Custom for the Lord to have a year and halfs Rent upon every Alienation qd ' infra Manerium praed ' talis habetur consuetudo a tempore quo non extat memoria hom ' habebatur scilicet qd ' post quamlibet alienationem in feodo vel de statu liberi tenementi alicujus parcel ' terrae vel tenÌ„torum tent ' de Manerio praed ' Dom ' Manerii praed ' pro tempore existen ' cum talis alienatio acciderit habuit habere consuevit reddit ' un ' anni medietat ' reddit ' unius anni per quem tal ' terrae vel tenementa sic alienaÌ„t ' tent ' fuer ' de Manerio praedict ' nomine finis pro alienatione Et sic dictus finis pro alienatione sic ut praefertur per consuetudinem Manerii praedict ' solubil ' aut aliqua pars in aretro fuit insolut ' qd ' tunc Dom ' And power to distrain for it if in arrear Manerii praedict ' pro tempore existen ' de tempore in tempus ad omnia tempora duran ' toto tempore praed ' quando quoties necesse requisivit distrinxit usus fuit consuevit distringere in super terras tenementa praed ' de Dom ' Manerii praed ' ut de eodem Manerio tent ' sic ut praefertur alienat ' quousque dictus finis pro alienatione sic ut praefertur solubil ' Quousque it be paid solut ' soret Et praedict ' Johannes Lancaster ulterius dic ' qd ' praedict ' Decano Capitulo de Manerio praedict ' cum pertin ' ac praed ' Johanne Sabine de Mesuagiis Horreis Terris praed ' cum perrin ' Unde c.