could not possibly secure them in his own House without subjecting himself to an Action and an Award that one Man shall take the Goods of another is void But if the Plea is not good yet if the Vmpirage be naught Iudgment is to be given for the Defendant for the advantage is saved to him upon the Demurrer And as to that the Vmpirage is but of one side for the Plaintiff is to do nothing nor is the Defendant to be acquitted of all Suits To which it was answered by the Plaintiff's Council That the Vmpirage was of both sides for there being Suits depending 't is awarded that each shall bear his own Charges which is a benefit to the Defendant for otherwise seing the right was in the Plaintiff the Defendant should have paid the Plaintiffs Costs as well as his own for which he cannot now sue without forfeiting his Bond Curia advisare vult Squibb versus Hole THE Plaintiff brought an Action of Escape Escape Action of Escape the Process was upon Bond not made within the Jurisdiction of an Inferiour Court and therefore no Escape and declares That he prosecuted one J. S. in the court of Ely upon a Bond made infra Jurisdictionem of that Court upon which he was taken and the Defendant suffered him to Escape Vpon Not Guilty pleaded the Iury found a special Verdict to this effect viz. That there was such a Bond upon which there was such a prosecution and such an Escape as in the Declaration but they find farther that this Bond was not made infra Jurisdictionem Curiae Maynard Serjeant who Argued for the Plaintiff said that this Action was commenced in an Inferiour Court upon a Bond which the Plaintiff sets forth to be infra Jurisdictionem Curiae and that the Defendant was Arrested and suffered to Escape and whether if in truth the Bond was not made infra Jurisdictionem an Action of Escape would lye or whether all the proceédings are coram non Judice was the doubt He took a difference where an Inferiour Court hath an Original Iurisdiction of the Cause and hath conusance of such a Suit as is brought there for in such Cases the proceedings are not extra-judicial but if an Action is brought where properly no Action doth lye all the proceedings there are coram non Judice At the Common Law one who had a particular Iurisdiction to hold Pleas within a Liberty could not hold any Plea of a thing which did arise out of the Liberty for though it was transitory in its nature yet being alledged not within his Iurisdiction it was ill 2 Inst 231. But when the cause of Action arises infra Jurisdictionem that gives them Authority to proceed and therefore it would be hard that the Iudge and Officer should be punished by a construction to make all extra judicial when they have no possible way of finding whether in truth the Cause did arise within the * Post Crowder and Goodwin Iurisdiction of the Court or not But the Officer is bound to obey the Process of the Court if it appear as in this Case that they had conusance of it the Iudge is likewise bound to grant the Process otherwise he is subject to the Plantiffs Action for his refusal In some Cases the Plaintiff himself may not know where the Bond was made as if he be Executor of the Obligee c. Besides in this Case 't is set forth That in the Action below the Defendant pleaded non est factum and so had admitted the Iurisdiction or at least had waived it and it would be an insufferable mischief if after all this labour and charge the Defendant might avoid all again North Chief Iustice said That if this Cause had been tryed before him he would have Non-suited the Plaintiff because he had not proved the truth of what he laid down in his Declaration viz. That the Bond was made infra Jurisdictionem Curiae But as to the Matter as it stood upon the special Verdict he inclined that as to the Plaintiff who knew where the Bond was made all the proceedings were coram non Judice but as to the Officer it was otherwise for the Pleint and Process would be a good Excuse for him in an Action of false Imprisonment Judgment And afterwards by the Opinion of three Iudges viz. the Chief Justice Wyndham and Atkyns Iustices Iudgment was given for the Defendant That this was no Escape and that though the Party had admitted the Iurisdiction by his Plea of non est factum below yet that could not give the Court any Iurisdiction which had not any originally in the Cause and the Case of * Roll. Abt. tit Escape 809 pl. 45. Richardson versus Bernard was cited as an Authority in point where the Plaintiff in an Action brought against an Officer declared in Hull upon a Bond made at Hallifax and had Iudgment and Execution and the Defendant escaped And in an Action brought for this Escape the Declaration was held ill because it did not alledge the Bond to be made infra Jurisdictionem Curiae Ellis Iustice of a contrary Opinion in omnibus Sams versus Dangerfield THE Plaintiff being Collector of the Hearth-Mony Departure brought an Action of Debt upon a Bond against his Sub-Collector conditioned to pay such Sums as he should receive within 14 days after receipt at such a place in the City of Worcester as the Plaintiff should appoint The Defendant pleads payment The Plaintiff assigns a breach in non-payment of such a Sum received at a place by him appointed The Defendant rejoyns that the Plaintiff appointed no place and the Plaintiff demurr'd And after Argument for the Plaintiff by Jones Serjeant this was adjudged a departure because the Defendant ought to have pleaded first that he had paid all but such a Sum for which as yet the Plaintiff had appointed no place of payment and Iudgment was given accordingly Smith versus Hall IN an Action brought against the Defendant for false Imprisonment he justified by virtue of a Latitat False Imprisonment doth not lye but an Action on the Case against the Sheriff for refusing sufficient Bail which the Plaintiff agreed in his Replication but farther set forth that after the Arrest and before the Return of the Writ he tendered sufficient Bail which the Defendant refused and Issue was joyned upon the tender which was found for the Plaintiff Newdigate Serjeant moved in Arrest of Iudgment 1. Though it was an Offence in the Defendant who was the Sheriff's Bayliff to refuse good Bail when tendred yet 't is not an Offence within the Statute 23 H. 6. cap. 10. because a Sheriffs Bayliff is not an Officer intended in that Statute neither will this Offence make him a Trespasser ab initio because the taking was by lawfull Process Cro. Car. 196. * Roll. Abr. 2 part 561. pl. 9. Salmon versus Percival The Defendant as Bayliff to the Sheriff is not the proper Officer to
an Estate Tail and therefore the pleading the Lease is not material for if it were a Lease expired yet the Plaintiff could not recover and therefore the praeter is wholly idle and insignificant of which the Plaintiff ought not to take notice because the Lands which come under the praeter are not chargeable The Plaintiff hath traversed as he ought what is material and is not bound to take notice of any thing more And of that Opinion was the whole Court and held the praeter idle and the general Replication good and Iudgment was given for the Plaintiff Prince versus Rowson Executor of Atkinson EXecutor de son tort cannot retain Executor de son tort cannot retain The Defendant in this Case pleaded that the Testator owed his Wife dum sola 800 l. and that he made his Will but doth not shew that he was thereby made Executor and therefore having no Title he became Executor de son tort for which cause his Plea was held ill and Iudgment was given for the Plaintiff Norris versus Palmer THE Plaintiff brought an Action on the Case against the Defendant for causing him falso malitiose to be indicted for a Common Trespass in taking away one hundred Bricks Case after an acquittal upon an Indictment for Trespas by which means he was compelled to spend great Sums of Mony and that upon the Trial the Iury had acquitted him The Defendant demurred to the Declaration and Barrel Serjeant said for him that the Action would not lie and for a President in the Case he cited a like Iudgment between Langley versus Clerk in the King's Bench Trin. 1658. 2 Sid. 100. In which Action the Plaintiff was indicted for a Battery with an intent to ravish a Woman and being acquitted brought this Action and the Court after a long Debate gave Iudgment for the Plaintiff but agréed that the Action would not lie for a Common Trespass as if it had beén for the Battery only but the Ravishing was a great scandal and for that reason the Plaintiff recoverd there but this is an ordinary Trespass and therefore this Action will not lie But Pemberton Serjeant held that the Action would lie because it was in the nature of a Conspiracy Sid. 463 464. 1 Cro. 291. and done falsly and malitiously knowing the contrary and thereby the Plaintiff was put to great Charges all which is confessed by the Demurrer And the Case cited on the other side is express in the Point for the Court in that Case could take notice of nothing else but the Battery for the intent to ravish was not traversable and therefore it was idle to put it into the Indictment It is now settled that an Action on the Case will lye for a malitious Arrest where there is no probable cause of Action and this Case is stronger than that because in the one the party is only put to Charges and in the other both to Charges and Disgrace for which he hath no remedy but by this Action The Court agreéd that the Action would lie after an acquittal upon an Indictment for a greater or lesser Trespass The like for citing another into the Spiritual Court without cause 3 Ass 13. 1 Rol. Abr. 112. pl. 9. Postea F. N. B. 116. D. 7 E. 4. 30. 10 H. 4. Fitz. Conspiracy 21. 13. 3 E. 3. 19. The Defendants Council consented to wave the Demurrer and plead and go to Tryal The King versus Turvil The King presented being intituled by a Simoniacal Contract his Presentee shall not be removed though the Symony is pardoned QUare Impedit The King was intituled to a Presentation by the Statute of 31 Eliz. cap. 6. because of a Simoniacal Contract made by the rightful Patron and he accordingly did present Then comes the Act of General Pardon 21 Jac. cap. 35. by which under general Words it was now admitted that Symony was pardoned In which Act there is a beneficial Clause of Restitution viz. The King giveth to his Subjects all Goods Chattels Debts Fines Issues Profits Amerciaments Forfeitures and Sums of Mony forfeited by reason of any Offence c. done And whether the Kings Presenteé or the Patron had the better Title was the Question This Case was only mentioned now but argued in Michaelmas Term following by Serjeant Jones that the Kings Presenteé is intituled he agreed that Symony was pardoned but not the consequences thereof for 't is not like the Case where a Stroak is given at one time and death happens at another if the Stroak which is the first offence is pardoned before the death of the party that is a Pardon likewise of the Felony for 't is true the Stroak being the cause of the death and that being pardoned all the natural Effects are pardoned with the Cause But legal Consequences are not thus pardoned as if a Man is outlawed in Trespass and the King pardons the Outlawry the Fine remains 6 E. 4. 9. 8 H. 4. 21. 2 Roll. Abr. 179. In this Act of Pardon there are words of Grant but the Presentation is not within the Clause of Restitution for 't is an Interest and not an Authority vested in the King and therefore a thing of another nature than what is intended to be restored because it is higher and shall not be comprehended amongst the general words of Goods and Chattels c. which are things of a lower nature and are all in the personality Cro. Car. 354. Conyers Serjeant argued for the Title of the Patron Ex parte Def. and said that there were three material Clauses in this Act. 1. A Pardon of the Offences therein mentioned in general and particular words 2. That all things not excepted shall be pardoned by general words as if particularly named 3. The Pardon to be taken most favourably for the Subject upon which Clauses it must necessarily follow that this Offence is pardoned and then all the consequences from thence deduced will be likewise pardoned and so the Patron restored to his Presentation for all Charters of Restitution are to be taken favourably Pl. Com. 252. The Presentation vests no legal Right in the Presentee for in the Case of the King 't is revocable after Institution and before Induction Co. Lit. 344. b. So likewise a second Presentation will repeal the first Rolls 353. And if the Kings Presentee dies before Induction that is also a Revocation if therefore the Party hath no legal Right by this Presentation and the King by the Simony had only an authority to present and no legal Interest vested then by this Act he hath revoked the Presentation and the right Patron is restored to his Title to present The Court were all of Opinion absente Ellis That the Kings Presentee had a good Title and by consequence the Patron had no right to Present this turn for here was an Interest vested in the King like the Case where the King is intituled to the Goods of a Felo
concluded that he had not paid it and therefore they would not admit him to wage his Law without bringing sufficient Compurgators to swear that they believed he swore Truth but such not appearing the Defendant defecit de Lege and Iudgment had been given against him but he offered to bring the Mony recovered and the Costs into the Court and to go to a new Tryal it being a very hard Case upon him at the former Trial where the Demand was of a Quit-Rent of 18 d. per annum the Defendant promised that if the Plaintiff would shew his Title and satisfie him that he had a Right to demand it he would pay him the Rent and at the Tryal express Oath was made of a Promise to pay upon which the Verdict was obtained whereas it was then urged that the Freehold would come in question upon that Promise and so the inferior Court could have no Iurisdiction And afterwards the Chief Iustice said that it hath béen adjudged in the Kings Bench that an inferior Court cannot hold Plea on a quantum meruit for Work done out of the Iurisdiction though the Promise be made within and that he knew where a Person of Quality intending a Marriage with a Lady presented her with a Iewel and the Marriage not taking effect he brought an Action of Detinue against her and she taking it to be a Gift offered to wage her Law but the Court was of Opinion that the property was not changed by this Gift being to a specifical intent and therefore would not admit her to do it Quod nota Styleman versus Patrick AN Action on the Case was brought by the Plaintiff against the Defendant for eating of his Grass with his Sheep Costs allowed so that he could not in tam amplo modo enjoy his Common there was a Verdict for the Plaintiff and it was now moved that he should have no more Costs than Damages because this was a Trespass in its own nature and the Iudge of Assise had not certified that the Title of any Land was in question Bur the Court were all of Opinion Curia that this Case was not within the Statute For it was not a frivolous Action because a little damage done to one Commoner and so to twenty may in the whole make it a great Wrong if the Cause were frivolous the Iudge of Assize may mark it to be such by vertue of the Statute of 43 Eliz. cap. 6. and then there shall be no more Costs than Damages and though in this Case the Plaintiff hath in his Declaration set out a Title to his Common yet the Title of the Land cannot possibly come in question and therefore not to be certified as in Cases of Trespas neither is there any need of a Certificate if it appears by the Pleading that the Title of the Land is in question The Court being against the Defendant as to the Costs his Council then moved in Arrest of Iudgment because the Plaintiff sets forth his Right to the Common only by way of Recital with a cumque etiam Postea c. that he had a Right to Common in such a place sed non allocatur for 't is affirmative enough and afterwards he is charged with doing the Plaintiff damage and so the Case is not like to an Action of Trespas quare cum he did a Trespass for there the sense is imperfect DE Term. Sancti Hill Anno 28 29 Car. II. in Communi Banco James versus Johnson IN Trespass Que Estate where 't is pleadable Mod Rep. 231. the Defendant justified by a Prescription to have Toll and Issue being joyned thereupon the Iury found a special Verdict in which the Case upon the Pleadings was viz. Before the dissolution of Priories the Mannor now in the possession of the Defendant was parcel of the Priory of B. which came to the Crown by the said dissolution and the King made a Grant thereof to Sir Jervas Clifton in Fee together with the said Toll adeo plene as the Prior had it and the Defendant having brought down a Title by several mesne Assignments claims by vertue of a Lease from Sir Jervas for seven years then in being alledging that the said Sir Jervas and all those whose Estate he had might take Toll and whether this Pleading by a Que Estate to have Right of Toll was good in Law the Iury doubted Baldwin Serjeant for the Plaintiff Ex parte Quer. argued that the Iustification was not good because there are two sorts of Toll viz. Toll through and Toll traverse and is in the Kings High Way and the other in a Man 's own Soil and it doth not appear for which the Defendant hath justified If it be for the first then he ought to shew that he did make a Causeway or some other thing that might be an advantage to the Passengers to entitle himself to a Prescription but if it be for the other then he must also shew it was for passing upon his Soil which implies a Consideration 22 Assize Kelw. 148. Pl. Com. 236. Lord Berkley's Case 1 Cro. 710. Smith versus Sheppard by which Cases it appears that the justification ought to be certain Then as to the point in Question he said that Toll cannot be appurtenant to a Mannor and so the Pleading by a Que estate is not good but if that should be admitted yet the Mannor being vested in the Crown by the dissolution the Toll then became in gross and could never after be united to the Mannor or appurtenant thereunto But it was argued for the Defendant by Maynard Serjeant and the whole Court were clear of Opinion that the Issue was upon a particular point and the Title was admitted and that nothing remained in question but the Point in pleading And as to what had been objected That Toll cannot belong to a Mannor 't is quite otherwise for an Advowson a Rent a Toll or any Profit apprender may be appurtenant to it T is true a Man cannot prescribe by a Que Estate of a Rent Advowson Toll c. but he may of a Mannor to which these are appendant 't is likewise true that if the Defendant had said this was Toll for passing the Highway he must shew some cause to entitle himself to the taking of it as by doing something of publick advantage But this general way of pleading is the most usual and so are the Presidents and it ought to come on the other side and to be alledged that the Defendant prescribed for Toll in the High-way and in this Case though the Mannor came to the Crown the Toll remained appurtenant still and so it continued when it was granted out The difference is between a thing which was originally a Flower of the Crown and other things which are not as Catalla Felonum c. if such come again to the King they are merged in the Crown but 't is otherwise in cases of a Leet Park Warren
Party to Bail but 't is sub modo it must be upon good Bail and if the Sheriff be Iudge of the Security 't is an Argument that he is lyable for if he was not in danger he need not take Security But afterwards upon the second Argument the Chief Iustice and the whole Court were of Opinion that Iudgment should be given for the Defendant North Chief Iustice The Common Law was very rigorous as to the execution of Process the Capias was ita quod habeas the Body at the day of the Return and if the Sheriff had arrested one it had been an Escape to let him go Before the making of this Statute the Sheriff usually took Sureties for the appearance of the Prisoner and by this means used great Extortion and took great Sums of Mony to prevent which Mischiefs this Statute was made and so designed 1. For the ease of the Prisoner the Sheriff being now compellable to take Security which he was not obliged to do before 2. To prevent Extortion and therefore directs that a Bond shall be taken in such manner and with such conditions as is therein mentioned But the Plaintiff since the Statute is much in the same condition as before for he is to make the same Return of Cepi Corpus 'T is true he may now let him go upon Bail but as to the Creditor he is to have him in Court to answer his Suit as before and shall be amerced if he doth not appear at the Return of the Writ so that tho' this Statute be an ease to the Defendant yet 't is a burthen to the Sheriff who runs a greater hazard since the making of this Act than before because then he might keep him in prison till the Debt was satisfied but now he is obliged to let him at large upon Bail from whom he is directed to take a Bond which he may keep in his own hands to indempnifie himself The Court can only amerce him if the Defendant do not appear at the Return of the Process and 't is not material to the party whether the Sheriff take one or more Security that being in his discretion some he must take for otherwise 't is directly in opposition to the Statute neither is it material to the party whether they are such as are sufficient for if they are not and the Defendant is thereupon discharged this will not amount to an Escape because nothing is done but what is pursuant to the Statute and therefore he is no otherwise chargeable than by Amerciaments The Statute was made and intended for the benefit of the Debtor not of the Creditor and there might be some colour for the Action if the Sheriff might Return that he let him to Bail for then it might have been necessary to have alledged the sufficiency of them which might have been traversed but now he must pursue the substance of the Statute so far as to take Bail he is the proper Iudge of the sufficiency and when the Bail is taken he must return a Cepi Corpus so that he is only to be amerced till he bring in the Body but an Escape will not lie against him Long 's Case ONE Long was arrested in the Pallace-Yard Priviledge of an Attorny not far distant from the Hall Gate the Court being then sitting and being an Attorny of this Court he together with the Officer was brought into Court and the Officer was committed to the Fleet that he might learn to know his distance and because the Plaintiff was an Attorny of the Court of Kings-Bench who informed this Court that his cause of Action was for 200 l. therefore the Court ordered that another of the Sheriffs Bayliffs should take charge of the Prisoner and that Mr. Robinson the Chief Prothonotary should go along with him to the Court of Kings-Bench which was done and that Court being informed how the Case was discharged the Defendant upon filing of common Bail The Writ upon which this Long was arrested was an Attachment of Priviledge which the Court supposed to be made on purpose to oust him of his Priviledge for there was another Writ against him at the Sheriffs Office at the Suit of another person The Countess of Northumberland's Case Knights must be of the Jury where a Peer is concerned ADjudged that where a Péer is Party either Plaintiff or Defendant two or more Knights must be returned of the Iury and it was said that in Cumberland there was but one Free-holder who was a Knight besides Sir Richard Stote a Serjeant at Law and the Court were of Opinion that rather than there should be a failure of Iustice a Serjeant of Law ought to be returned a Iury-man for his Priviledge would not extend to a Case of necessity Bell versus Knight In Banco Regis Smiths Forges are chargeable with the Duty of Fire-hearth IN an Action of Trover Vpon Not Guilty pleaded the Iury found a special Verdict in which the Point was upon the Construction of the Statute of 14 Car. 2. c. 10. for the establishing of an additional Revenue upon the King his Heirs and Successors for the better support of his and their Crown and Dignity by which it is Enacted That for every Fire-Hearth and Stove in every House the yearly Sum of 2 s. shall be paid to the King other than such as in the said Act are exempted Then comes a Proviso which saith That this Act shall not extend to charge any Blowing House Stamp Furnace or Kilne c. And the Question now was whether a Smiths Forge shall be charged with this Duty Winnington Sollicitor General conceived that all Fire-Hearths are liable within the Body of the Act and there is nothing to exempt them but what is in the Exception and that a Smiths Forge cannot be called a Blowing House within the intent of the Act notwithstanding the Iury have found that Smiths use Bellows to blow their Forges For by Blowing Houses such Houses are meant as are in Staffordshire and Suffolk for the making of Iron these were the Blowing-Houses intended by the Parliament to be excepted and no other for if Smiths Forges had béen meant thereby those would have been inserted in the Proviso as well as the other things therein mentioned Words are to be taken in a common Vnderstanding for if a Traveller should enquire for a Blowing House no Body would send him to a Smiths Forge By the Opinion of the whole Court Curia it was adjudged upon the first Argument that Smiths Forges are liable to this Duty and so the Sollicitor said it had been lately adjudged in this Court by the Opinion of Twisden Wyld and Rainsford and that my Lord Chief Iustice Hale was of the same Opinion but Twisden said that neither the Chief Iustice or himself gave any Iudgment upon the Merits but upon a Point in Pleading Stroud versus the Bishop of Bath and Wells and Sir George Horner In Communi Banco IN a Quare Impedit
upon complaint made and Conviction he shall forfeit 500 l. so that as to himself whatever he doth in his Office is void but it was never the intent of the Act to work a Mischief or Wrong to Strangers for the Law favours what is done by one in reputed authority as if a Bishop be created who upon a Presentation made admits a Parson to a Benefice or collates by Lapse the former Bishop not being deprived or removed such acts are good and not to be avoided Cro. Eliz 699. Cro Car. 97. 2 Cro. 260. But admitting it to be an Error it cannot now be assigned for such because the Parties in Pleading have allowed the proceedings to be good upon Record and there is Iudgment against the Defendant but if he had been taken upon that Iudgment he might have brought an Action of false Imprisonment 2 Cro. 359. Cro. Eliz. 320. Wild Iustice You shall not assign that for Error which you might have pleaded especially having admitted it by pleading and one Musgrave's Case was cited which was that there is an Act of Parliament which lays a Tax upon all Law proceedings and makes them void if the Kings Duty be not paid and it was adjudged That if the Duty was not paid but admitted in pleading you shall not afterwards alledge what before was admitted viz. That the Duty was not paid Vpon a Writ of Error in Parliament it cannot be assigned for Error that the Chief Iustice of the Kings-Bench had not taken this Oath the same might be also of a Writ of Error in the Exchequer Chamber for an Error in Fact cannot be there assigned Sid. 253. but at the last the Iudgment was Reversed See the Reasons thereof by the Chief Iustice Jones in his Reports folio 81. Higginson versus Martin in C. B. IN an Action of Trespass and false Imprisonment If Cause of Action doth not arise within the Jurisdiction tho' Judgment is given below an Action will lie here the Defendant justifies by Process issuing out of the Court of Warwick upon a Iudgment obtained there and sets forth that there was a Plaint there entered in placito transgressionis to which the Defendant appeared super quo taliter processum fuit that Iudgment was given against him upon which he was taken and Imprisoned The Plaintiff replies That the Cause of Action did not arise within the Iurisdiction of that Court. The Defendant rejoyns that the Plaintiff is now estopped to say so for that the Declaration in the Inferiour Court against the now Plaintiff did alledge the cause of Action to be infra jurisdictionem of the Court to which he pleaded and Iudgment was given against him The Plaintiff demurrs And Newdigate Serjeant took Exceptions to the Plea 1. Ex parte Quer. 'T is said a Plaint was entered in placito transgressionis but 't is not said what kind of Trespass it was whether a clausum fregit or other Trespass 2. 'T is said that the Defendant appeared super quo taliter processum fuit that Iudgment was given for the Plaintiff Antea and no mention was made of any Declaration and the pleading taliter processum est in an Inferiour Court is not good 3. The Iustification is ill because the Inferiour Court had no Iurisdiction and so the Proceedings are coram non Judice for the Plaintiff in his Replication saith That the Trespass for which the Recovery was had in the Court of Warwick Moor 422. Latch 180. Cro. Jac. 184. was done at a place out of the Iurisdiction of the Court which the Defendant hath admitted by relying on his Plea by way of Estoppel 4. It did not appear by what Authority the Court at Warwick was held whether by Grant or Prescription These Exceptions were answered by Serjeant Hopkins Ex parte Def. and first he said That the Plaintiff there sets forth that levavit quandam querelam in placito transgressionis which was well enough Secondly taliter processium fuit is the shorter and better way of Pleading and therefore in a Scire Facias nothing is recited but the Iudgment 't is true in a Writ of Error the whole Record must be set out but that is not necessary here Thirdly 't is too late now to question the Iurisdiction of the Inferiour Court after the Party hath admitted it below he ought first to have pleaded to the Iurisdiction but now is Estopped by his own admittance there and since Iudgment is given upon it 't is not now to be questioned but however this being in the Case of an Officer if it was out of the Iurisdiction he is bound to execute the Process of the Court and so this is a good excuse for him Dyer 61. 10 Co. 77. But let the Pleadings be good or bad if the Declaration here be ill the Plaintiff cannot have Iudgment and that it was so he said that the Writ alledged an Imprisonment generally but the Count an Imprisonment donec he paid 5 l. 10 s. which is variant and the Prothonotaries said that the Writ used always to mention donec c. Curia But the Court were all of Opinion that the Count was well enough for there was no matter therein contained which was not in the Writ the Imprisonment was the Gist of the Action and the donec c. might have been given in Evidence because 't is only an aggravation and a consequence of the Imprisonment so that the Count is not larger but more particular than the Writ And as to the two first Exceptions the Court was also of Opinion that there was no difficulty in them or in the last Exception but thought the Plea was well enough as to those And they also agreed that the Officer in this Case was to be discharged for though the Process be erronious yet he is to obey and not to examine 2 Cro. 3. Weaver versus Clifford The great doubt in this Case was upon the third Exception as to the point of Iurisdiction Sid. 151. Latch 181. and whether the other Defendant who was the Plaintiff below should be likewise discharged was the Question And as to that the Chief Iustice and Wyndham Iustice were of Opinion That this was no good justification as to the Plaintiff below for if the cause of Action did arise without the Iurisdiction of which he is bound to take notice the proceedings quoad him are all coram non Judice and he cannot justifie the serving of any Process so that if the Trespass was done out of the Iurisdiction of the Court the Defendant below may bring an Action against the Plaintiff and is not concluded here by the proceedings there but may alledge the cause of Action to arise out of the Iurisdiction and as to his being Estopped by admitting of the Iurisdiction below that cannot be because an admittance cannot give the Court a Iurisdiction where it had none originally and so he said it was resolved in one Squib's Case in a
quo and 't is in nature of a Contract raised by Law By the Words of the Capias ad satisfaciend ' it doth appear that the design of the Writ is to enforce the Payment of the the debt by the Imprisonment of the Defendant The Sheriff thereupon returns that he hath taken the Body and that the Defendant hath paid the Mony to him for which reason he discharged him and for this Return he was amerced not because he discharged the Party but because he had not brought the Mony into the Court for the Law never intended that a Man should be kept in Prison after he had paid the debt In this Case the Defendant can have no remedy to recover it again of the Marshal because it was not a bare Payment to him but to pay it over again to the Plaintiff and likewise in consideration that he should be discharged from his Imprisonment If it should be objected by the Marshal that the Plaintiff hath an Action of Escape against him and likewise by the Plaintiff that he did not make the Gaoler his Steward or Bayliff to receive his Mony Answ The Gaoler is made his Bayliff to keep the Party in Execution and it would be very hard that when the Prisoner will lay down his Mony in discharge of the Debt that the Gaoler should not have full power to discharge him If he had come in Michaelmas-Term after the long Vacation and informed the Court that he had offered to pay the Execution Mony to the Marshal and that he would not take it and that the Plaintiff could not be found the Court would have made a Rule to help him Mr. Holt contra If the Payment had béen good to the Sheriff or Marshal yet 't is not pleadable to the second Execution because 't is matter in fact That which hath been objected that the Party shall plead to a second Execution that his Goods were taken by a former Fieri Facias cannot be for no such Plea can be good because by that Writ the Sheriff hath express Authority to levy the Mony and the Plea is not Payment to the Sheriff but that the Mony was levyed by him by virtue of the Writ which ought to be brought into the Court and an Audita Querela lies against the Plaintiff and then the Defendant is to be bailed 1 Leon. 141. Askew versus the Earl of Lincoln Jones and Rainsford were of Opinion that the Defendant might have remedy against the Marshal to recover his Mony again and that the Payment to him was no discharge to the Plaintiff at whose Suit he was in Execution But Iustice Wyld was of another Opinion Quaere The Lord Marquess of Dorchester's Case In Communi Banco IN a Scandalum Magnatum Visne not changed in a Scandalum Magnatum Serjeant Pemberton moved to have good Bail which the Court denied and said that in such Case Bail was not requirable but notwithstanding the Defendant consented to put in 50 l. Bail And then upon the usual Affidavit moved to change the Visne the Action being laid in London which was opposed by the Serjeant who desired that it might be tried where it was laid but he said in this Case that the Visne could not be changed 1. Because the King is a Party to the Suit for 't is tam pro Domino Rege quam pro seipso 2. The Plaintiff is a Lord of Parliament which is adjourned and will meet and therefore it would be inconvenient to try the Cause in the Country since the Service of the King and Kingdom both require his Attendance here and he said that upon the like Motion in B. R. between the Lord Stamford and Needham the Court would not change the Visne North Chief Iustice said that he always took it as a current Opinion that in a Scandalum Magnatum the Visne could not be changed for since it was in the nature of an Information it being tam quam 't was advisable whether it was not within the Statute of 21 Jac. which doth appoint Informations to be tried in their proper Counties But Iustice Atkins inclined that the Visne might be changed for though by the Wisdom of the Law a Iury of the Neighbourhood are to try the Cause yet in point of Iustice the Court may change the Visne to which it was objected that then there would be no difference between local and transitory Actions Actions of Debt and Accompt shall be brought in their proper Counties 6 R. 2. and it was agreed that an Attorney is sworn to bring Actions no where else But the Court not agréeing at last the Defendant was willing that the Cause should be tried in London if the Plaintiff would consent not to try it before the first Setting in the next Term. And as to that reason offered why the Visne should not be changed because the Plaintiff was a Lord of Parliament Iustice Atkins said that did not satisfie him it might be a good ground to move for a Trial at the Barr to which it was answered that in the Case of the Earl of Shaftsbury the Court would not grant a Tryal at the Barr without the Consent of the Defendant The Visne was not changed Beaver versus Lane COvenant made to Baron and Feme Covenant to Baron and Feme the Baron alone may bring the Action the Husband alone brings the Action quod teneat ei conventionem secundum formam effectum cujusdam Indenturae inter Querentem ex una parte Defendentem ex altera parte confect ' and this was for not repairing his House After Verdict for the Plaintiff it was moved in Arrest of Iudgment because of this variance But the Court Ordered that the Plaintiff should have his Iudgment for the Indenture being by Baron and Feme it was therefore true that it was by the Baron and the Action being brought upon a Covenant concerning his Houses and going with them though it be made to him and his Wife yet he may refuse quoad her and bring the Action alone And the Chief Iustice said that he remembred an Authority in an old Book that if a Bond be given to Baron and Feme the Husband shall bring the Action alone which shall be looked upon to be his refusal as to her Calthrop versus Phillips THE Question was Supersedeas must be delivered by the old Sheriff to the new one Mod. Rep. 222. in regard a Supersedeas is not returnable in the Court whether the old Sheriff is bound to deliver it over to the new one or no and it was urged that it ought not because the old Sheriff is to keép it for his indempnity and he may have occasion to plead it But on the other side it was insisted by Serjeant George Strode that it ought to be delivered to the new Sheriff and that there was a Writ in the Register which proved it fol. 295. and if it should be otherwise these inconveniences would follow 1. It would be
without any actual Entry 2 Cro. 604. and the Bargaineé thereby is capable of a Release though he cannot bring an Action of Trespass without Entry for when Mony is the Consideration of making the Bargain and Sale 't is executed by the Statute of Vses and so the Release upon it is good but if the Deed be not executed 't is otherwise But this being to support a Common Recovery Antea Addison and Otway was to be favoured and therefore the Court took time to consider till the next Term and then The Chief Iustice said That if a real Action be brought against A. who is not Tenant to the Praecipe and a Recovery be had against him the Sheriff can turn him out who is in possession but if he who is not in possession comes in by Voucher he is estopped to say afterwards that he was not party to the Writ so that he who is bound must be Tenant or Vouchee or claim under them Conveyances have been altered not so much by the Knowledge of the Learned as by the Ignorance of Vnskilful Men in their Profession The usual Conveyance at Common Law was by Feoffment to which Livery and Seisin were necessary the Possession being given thereby to the Feoffee Antea Lord Salisburies Case but if there was a Tenant in Possession and so Livery could not be made then the Reversion was granted and the particular Tenant always attorned and upon the same reason it was that afterwards a Lease and Release was held a good Conveyance to pass an Estate but at that time it was made no question but that the Lessee was to be in actual Possession before the Release Afterwards Vses came to be frequent and Settlements to Vses were very common by reason whereof many inconveniencies were introduced to prevent which the Statute of the 27th of H. 8. was made by which the Vse was united to the Possession for before that Statute Vses were to be executed according to the Rules of Equity but now they are reduced to the Common Law and are of more certainty and therefore are to be construed according to the Rules of Law At the Common Law when an Estate did not pass by Feffoment the Lessor or Vendor made a Lease for years and the Lessee actually entred and then the Lessor granted the Reversion to another and the Lessee attorned and this was good Afterwards when an Inheritance was to be granted then also was a Lease for years usually made and the Lessee entred as before and then the Lessor released to him and this was good But after the Statute of Vses it became an Opinion That if a Lease for years was made upon a valuable Consideration a Release might operate upon that without an actual Entry of the Lessee because the Statute did execute the Lease and raised an Vse presently to the Lessee Sir Francis Moor Serjeant at Law was the first who practised this way Nota. But because there were some Opinions that where Conveyances may enure two ways the Common Law shall be preferred unless it appear that the party intended it should pass by the Statute thereupon the usual course was to put the Words Bargain and Sale into the Lease for a Year to bring it within the Statute and to alledge that the Lease was made to the intent and purpose that by the Statute of Vses the Lessee might be capable of a Release but notwithstanding this Mr. Noy was of the Opinion That this Conveyance by Lease and Release could never be maintained without the actual Entry of the Lessee This Case goes farther than any that ever yet came into Iudgment for Mony is not mentioned here to be the Consideration or any thing which may amount to it unless the Pepper Corn which he held to be a good Consideration The Lease and Release are but in nature of one Deed and then the intent of the Parties is apparent that it should pass by the Satute and eo instanti that the Lease is executed the Reservation is in force The Case put by Littleton in Sect. 459. is put at the Common Law and not upon the Statute where he saith That if a Lease be made for years and the Lessor releaseth all his Right to the Lessee before Entry such Release is void because the Lessee had only a Right and not the Possession which my Lord Coke in his Comment upon it calls an interesse termini and that such Release shall not enure to enlarge the Estate without the Possession which is very true at the Common Law but not upon the Statute of Vses And therefore Iudgment was given by the whole Court Judgment that the Word Grant in the Lease will make the Land pass by way of Use that the Reservation of a Pepper Corn was a good consideration to raise an Vse to support a Common Recovery that this Lease being within the Statute of Vses there was no need of an actual Entry to make the Lessee capable of the Release for by vertue of the Statute he shall be adjudged to be in actual possession and so a good Tenant to the Praecipe and Iudgment was given accordingly in Michaelmas Term following Kendrick versus Bartland THE Plaintiff brought an Action on the Case for stopping the Water going to his Mill with a Continuando c. Continuando laid after a Nusance abated yet Damages shall be recovered for what was done before The Defendant pleads that the stopping was contra voluntatem and that tali die which was betwéen the first and the last day laid in the Continuando the Plaintiff himself had abated the Nusance and so he had no cause of Action To this Plea the Plaintiff demurred and Serjeant Baldwyn who argued to maintain the Plea did not relye upon that part of it where the Defendant saith that the stopping of the Water was involuntary because he doing the thing it could not be contra voluntatem but the Question would be whether the Plaintiff had any cause of Action to recover damages after the Abatement of the Nusance and he said that he had abated it before the Action brought and counted for damages after the Abatement for which he had no Cause of Action and this he had confessed by his Demurrer But the Court were of Opinion that it was not a good Plea and took this difference between a Quod permittat or an Assize for a Nusance and an Action on the Case for the same for the end of a Quod permittat or an Assise was to abate the Nusance 2 Cro. 207 618 but the end of an Action on the Case was to recover damages therefore though the Nusance was removed the Plaintiff is intituled to his damages that accrued before and 't is usual in Actions of this nature to lay the Sid. 319. Continuando for longer time than the Plaintiff can prove but he shall have damages for what he can prove and so here he shall recover the
gave him the Goods at London by force whereof he took them at London absque hoc that he took them at Coventry because by such Gift or Delivery he might justifie the taking any where as well as where the delivery was made 2. That the Declaration was ill for the Agreement was to deliver the Goods at London and the breach was that he left them at London and so but argumentative Aston pl. Red. 62. Herns Pleader 76. Brownl Pleadings 139. But the Court were of Opinion that the Declaration was good and the Plea was naught in substance but if it had been good the Traverse notwithstanding had been ill because the justification was not local 2 Cro. 45 372 though Iustice Scroggs was of a contrary Opinion And Iudgment was given for the Plaintiff Nota Visne altered Propter necessiatem The Plaintiff had leave given by the Court to alter the Visne from London to Middlesex because all the Sittings in London were on a Saturday and his Witness was a Jew and would not appear that day Mendyke versus Stint PRohibition was prayed to the Sheriffs Court of London Prohibition to the Sheriffs Court after Verdict and Judgment comes too late The Suggestion was That the Plaintiff was sued in that Court in an Action on the Case and sets forth the Proceedings at large that there was a Verdict against him there and averred that the Contract upon which he was sued there revera was made in Middlesex and so the cause of Action did not arise within their Iurisdiction and upon Demurrer to the Prohibition Serjeant Pemberton argued 2 Inst 229 243 601. West 1. c. 35. F. N. B. 45. b. Hob. 106. 1. That a Prohibition doth lie to any Court as well Temporal as Spiritual where such Courts exceed their Bounds for both those Iurisdictions are united to the Imperial Crown it may be granted to the Dutchy Court if they hold Plea of Lands not parcel of the Dutchy 2. Though the Iury have here found that the Defendant assumpsit modo forma yet such finding as to time and place is not material nor is it any Estoppel in a new Action laid in another County to aver that it was for the same thing 'T is true both time and place may be made material by pleading and so it had been in this Case if the Iury had found the place precisely for it would have been an Estoppel The Verdict therefore is nothing and all they have done is coram non Judice The Case of * Antea Squib and Holt. Squib and Hole he cited as an Authority in point where it was adjudged no Escape in the Officer to let a Man at Liberty who was in Execution upon a Bond sued in an Inferior Court the Bond not being made within the Iurisdiction thereof Ex parte Def. But Maynard Dolben Goodfellow and Sympson Serjeants contra They agreed that where it appears by the Plaintiffs Libel that the Court had no Iurisdiction there a Prohibition lies at any time but if what is in the Declaration is laid infra jurisdictionem there the Party must plead extra jurisdictionem and if they refuse to plead to the Plea a Prohibition will lie after Sentence But here is an Action on the Case brought of which the Sheriffs Court can hold Plea and which is laid to be infra jurisdictionem and not denied by the Plaintiff in his Plea and therefore now after Verdict and Iudgment he comes too late for a Prohibition and upon this difference Prohibitions have been usually either granted or denied to the Spiritual Courts Though the Court hath not cognisance of the Cause yet the Proceedings are not coram non Judice for if it be alledged to be within the Iurisdiction and the Defendant takes no exception to it and then Sentence is given against him he hath there by admitted the Iurisdiction So where a Man sued for a Legacy in the Prerogative Court where the Will was proved Stiles 45. by the Opinion of Rolls C. J. 2 Roll. Abr. 318. and Sentence given and an Appeal to the Delegates and Sentence affirmed and then a Prohibition granted but without notice upon the Statute of 23 H. 8. cap. 9. for that the Parties lived in another Diocess but the Plaintiff having allowed the Iurisdiction in all the former proceedings though the Prohibition was granted the Court would not compel the Party to appear and plead but granted a Consultation Cro. Car. 97. Smith versus the Executors of Pondrel In Hillary-Term 1675. in B.R. between Spring and Vernon and in Michaelmas-Term in 22 Car. 2. B. R. Buxton's Case and in Hillary Term the 22 23 Car. 2. in the same Court between Cox and St. Albon Prohibitions were denied after the Iurisdiction adadmitted by Pleading Mod. Rep. 81. The Chief Iustice Wyndham and Atkyns upon the first Argument enclined that a Prohibition ought to be granted because the admittance of the Party cannot give a Iurisdiction where originally there was none but afterwards they were all of Opinion That the Prohibition should not go but said that the Plaintiff in the Inferiour Court ought to have been Non-suited if it appeared upon the Evidence that the Cause of Action did arise extra jurisdictionem In this Case these things were agreed by the Court. 1. Sid. 151. That if any matter appears in the Declaration which sheweth that the Cause of Action did not arise infra jurisdictionem there a Prohibition may be granted at any time 2. If the subject matter in the Declaration be not proper for the Iudgment and determination of such Court there also a Prohibition may be granted at any time 3. If the Defendant who intended to plead to the Iurisdiction is prevented by any Artifice as by giving a short day or by the Attornies refusing to plead it c. or if his Plea be not accepted or is over-ruled in all these Cases a Prohibition likewise will lie at any time And the Chief Iustice and Wyndham Iustices were of Opinion that after the Defendant had admitted the Iurisdiction by pleading to the Action especially if Verdict and Iudgment pass the Court will not examine whether the Cause of Action did arise out of the Iurisdiction or not But Atkyns and Scroggs Iustices said nothing to this last point but that many times an advantage given by the Law was lost by coming too late and instanced that a Visne may be changed in time but not if the Party come too late so if the time of the promise be laid above six years from the time of the Action brought if the Statute of Limitations be not pleaded the Defendant cannot take afterwards advantage of it Whereupon a Prohibition was denied and Iudgment was given for the Defendant Birch versus Wilson Plea tho' it amount to a general Issue if it doth disclose matter of Law besides it shall not be demurred unto IN an Action on the Case the Plaintiff declared
Habens legale jus titulum need not shew what Title the disturber had after Verdict 213 In a Bond to pay 40 l. when an Accompt is stated by two Attornies to be chosen between the Parties 't is a Covenant and not a solvendum 266 Breach is assigned relating to three Covenants and concludes sic Conventionem fregit 't is good 311 Where an Agreement to pay will amount to a Covenant 269 Covenants reciprocal cannot be pleaded in bar to each other 34 75 76 309 Breach where assigned and not necessary to aver performance on the part of the Plaintiff 309 Court Inferiour the cause of Action must arise within the Jurisdiction 30 Judgment therein arrested because the Damages were laid to 30 l. 101 102 For not saying that the Jurors were electi ad triand ' 102 Taliter processum fuit and the proceedings not set forth at large well enough in a Plea but not in a Writ of Error 102 195 Vi armis contra pacem whether good or not 102 Cannot hold Plea for work done without the Jurisdiction though the Promise be made within 141 Cause of Action must appear to be within the Jurisdiction to oust the Courts above 197 Where it doth not appear that the Court was held either by Grant or Prescription good 197 198 If the cause of Action doth not appear to be within the Jurisdiction though there is a Judgment recovered below yet an Action of Trespass will lye and false Imprisonment upon the taking out of that Judgment 197 If upon Evidence it appear that the cause of Action did arise extra Jurisdictionem the Plaintiff must be non-suit 273 If Jurisdiction be admitted in pleading and Verdict and Judgment thereon t is too late for a Prohibition Ibid. Court Ecclesiastical In what Case a Bishop shall administer an Oath in Temporal Matters 118 Custom One cannot be pleaded in bar to another 105 In pleading it must be strictly alledged 41 Where 't is a reasonable Custom for the Lord to have derelict Lands 107 D. Day Vide Plea WHere 't is excluded being alledged in the Declaration it makes the Plea ill 146 'T is but punctum temporis and of no consideration in the Law 281 Release of all demands usque 26 April a Bond dated that day is not released 281 Debt Upon the Sheriffs Bond will be good though the Statute be not pleaded 36 Will lye upon the Contract where the whole Term is assigned 174 175 176 Whether it will lye for a Fine set by a Steward for 't is ex quasi contractu 230 It must be upon the Contract or ex quasi contractu 262 Deed. Where 't is lost the Party must make Oath of it to entitle himself to a Bill in Equity to have it performed in Specie 173 Demand Must be made where an Interest is to be determined 264 Devise To a Man and his Heirs if the Devisee die in the Life time of the Devisor his Heir takes nothing 313 Republication makes it a new Will ibid. To the Heir at Law makes a Limitation and not a Condition 7 To an Infant in ventre sa mere if there is a sufficient description of him 't is good 9 Where the word paying makes a Fee where not 26 To him till he be of Age then to him in Fee he dyed within Age yet a Free-hold vested in him presently 289 To him in Fee when of Age if he dye before then to the Heirs of the Body of R. and their Heirs he died living R. within Age his Sister and Heir shall take by way of Executory devise 289 Executory devise how it differs from a contingent Remainder at Common Law ibid. Construction of words therein 290 Departure From his Plea 31 Disability By a Statute where it ought to be removed by the Party to enable himself to execute an Office 299 Discharge By Parol good before the breach of promise but not afterwards 259 Discontinuance Where amendable 316 In pleading the Plaintiff declared of taking several things the Defenant justifies as to part and saith nothing of the residue 259 In the Adjournment of a Court where a day certain is not given 59 Distress Cannot be of Sheaves of Corn in Shocks for Rent 61 Distribution Shall be equally made amongst the Children of the whole and half Blood 204 205 206 Disturbance Coactus fuit to pay is a sufficient Disturbance 55 E. Escape THE Plaintiff declared upon Process in an Inferiour Court and the Bond was not made infra Jurisdictionem the Action would not lye 29 30 Debt thereon lies against the Warden of the Fleet as Superior where the Grantee for Life is insufficient 119 After an Escape the Plaintiff may have a Capias ad satisfaciendum or Scire facias at his Election 136 Whether it will lye against the Sheriff for taking insufficient Bail 181 Election In disjunctive Conditions where the Election is in the Obligor 201 304 'T is at the Plaintiffs Election to have a Ca. Sa. or Scire facias after an Escape 136 Enclosure Where a Custom is good to Enclose in a Common Field 105 Entry Not necessary to avoid an Estate in case of a Limitation 7 Error Where a Writ of Error will lye upon a Fine in the Old Bayly 219 Error in Fact cannot be assigned in the Exchequer-Chamber 194 If one be dead after the Judgment he must be named in a Writ of Error 285 Where a Judgment shall be avoided by a Plea without a Writ of Error 276 Estate Where the word Body makes an Estate for Life and no Tail 16 Estoppel Good by a Fine levied by a Remainder man in Tail 90 No Uses can be declared of a Fine by Estoppel 90 One who has no Estate levies a Fine 't is good by Estoppel 115 Evidence A Decree in Chancery or Sentence in in the Ecclesiastical Court read as Evidence of the fact 231 232 Excuse If one Man doth not perform his Covenant 't is no Excuse for the breach on the other side 75 76 What is a good Plea by way of Excuse and what not 27 28 29 Executor De son tort cannot retain 51 Where the Judgment shall be de bonis Testatoris 108 What is requisite to make an Executor 147 What must be done when he refuseth Ibid. De son tort where he may be of a Term but not of a Term in futuro because he cannot enter 175 Cannot plead non detinet where the Testator could not plead nil debet 266 Executor of an Executor de son tort where not liable at Law 293 294 Where he pleads a Judgment kept on Foot by fraud 36 Explain A Man grants Tenementa praedicta then follows totum quicquid habet whether these subsequent words shall explain or enlarge the Grant 112 113 c. Execution Payment of the Mony to the Marshal the Defendant may be taken again in Execution at the Suit of the Plaintiff 212 213 Executory Decree Is of no force in Equity 232 Existen
to such person or persons and to such use and uses intents and purposes as she should think fit and that the Plaintiff should assent thereunto and not impeach the same in Law or Equity The Marriage shortly afterwards took effect and Philippa by Will in Writing gave all her Estate away in Legacies and Charitable Vses and she devised to the Plaintiff 20 l. to buy him Mourning and gave to Sir William Turner the Defendant 100 l. and made him Executor and she devised to Mr. Hays and to Mr. Grace 20 l. apiece whom she made Overseers of her Will and died There was neither Date or Witnesses to this Will save only the Month and Year of our Lord therein mentioned and that this Will not being proved in the Spiritual Court the Plaintiff moved for a Prohibition and the Defendant took Issue upon the Suggestion In which Case these Points were resolved by the Court. Mod. Rep. 211. 1. If there be an Agreement before Marriage that the Wife may make a Will if she do so 't is a good Will unless the Husband disagreés and his Consent shall be implyed till the contrary appear And the Law is the same though he knew not when she made the Will which when made 't is in this Case as in others ambulatory till the death of the Wife and his dissent thereunto but if after her death he doth consent he can never afterwards dissent for then he might do it backwards and forwards in infinitum 2. If the Husband would not have such Will to stand he ought presently after the death of the Wife to shew his dissent 3. If the Husband consent that his Wife shall make a Will and accordingly she doth make such a Will and dieth and if after her death he comes to the Executor named in the Will and seems to approve her choice by saying He is glad that she had appointed so worthy a Person and seemed to be satisfied in the main with the Will and recommended a Coffin-maker to the Executor and a Goldsmith for making the Rings and a Herald Painter for making the Escutcheons this is a good assent and makes it a good Will though the Husband when he sees and reads the Will being thereat displeased opposes the Probate in the Spiritual Court by entring Caveats and the like and such disagreément after the former assent will not hurt the Will because such assent is good in Law though he know not the particular Bequests in the Will 4. When there is an express Agreement or Consent that a Woman may make a Will a little proof will be sufficient to make out the continuance of that Consent after her death and it will be needful on the other side to prove a Disagreement made in a solemn manner and those things which prove a dissatisfaction on the Husbands part may not prove a disagreement because the one is to be more formal than the other for if the Husband should say that he hoped to set aside the Will or by a Suit or otherwise to bring the Executor to terms this is not a dissent Sir Robert Howard versus the Queens Trustees and the Attorney General In the Dutchy UPON a Bill exhibited in the Dutchy Court Jones 126. The Question was whether the Stewardship of a Mannor was grantable in Reversion or not The Attorny General and the Queens Council Butler and Hanmore held that it was not But Serjeant Pemberton and Mr. Thursby would have argued to the contrary for they said it might be granted in Fée or for any less Estate and so in reversion for it may be executed by Deputy But this Question arising upon a Plea and Demurrer the Debate thereof was respited till the hearing of the Cause which was the usual Practice in Chancery as North Chief Iustice who assisted the Chancellor of the Dutchy informed the Court. And he said that in all Courts of Equity the usual course was when a Bill is exhibited to have Mony decreed due on a Bond upon a Suggestion that the Bond is lost there must be Oath made of it for otherwise the Cause is properly triable at the Common Law and such course is to be observed in all the like Cases where the Plaintiff by surmise of the loss of a Déed draws the Defendant into Equity but if the Case be proper in its own nature for a Court of Conscience and in case where the Déed is not lost the Remedy desired in Chancery could not be obtained upon a Trial at Law there though it be alledged that the Déed is lost Oath need not be made of it as if there be a Déed in which there is a Covenant for farther Assurance and the Party comes in Equity and prays the thing to be done in specie there is no need of an Oath of the loss of such Deed because if it 't is not lost the Party could not at Law have the thing for which he prayed Relief for he could only recover Damages Note also That he said in the Case of one Oldfeild that it was the constant practise where a Bill is exhibited in Equity to foreclose the right of Redemption if the Mortgagor be foreclosed he pays no Costs and though it was urged for him that he should pay no Costs in this Case because the Mortgagee was dead and the Heir within Age and the Mony could not safely be paid without a Decree yet it being necessary for him to come into Equity he must pay for that necessity Note also the difference between a Mortgage in Fee and for Years for if 't is in Fee the Mortgagor cannot have a Reconveyance upon payment of the Mony till the Heir comes of Age. It was agreed in this Case by the Court that if there be Tenant for Life Remainder in Fee and they joyn in a Deed purporting an absolute Sale if it be proved to be but a Mortgage he shall have his Estate for Life again paying pro rata and according to his Estate and so it shall be in the Case between Tenant in Dower and the Heir Loyd versus Langford Lessee for Years makes an Assignment of his Term where Debt lies upon the Contract and where not IN a special Verdict the Case was Viz. A. being Tenant in Fee of Lands demised the same to B. for seven years B. re-demises the same Lands to A. for the said Term of seven years reserving 20 l. Rent per Annum A. dyes his Wife enters as Guardian to the Heir of A. her Son and receives the Profits B. brings Debt against her as Executrix de son tort in the debet and detinet and whether this Action would lie or not was the Question Serjeant Baldwyn who argued for the Plaintiff held that it did lie for though the Rent in this Case reserved did not attend the Reversion because the Lessee had assigned over all his Term yet an Action of Debt will lie for that Rent upon the Contract Cro. Jac. 487.
special Verdict He who sues in an Inferior Court is bound at his peril to take notice of the Bounds and Limits of that Iurisdiction and if the Party after a Verdict below prays a Prohibition and alledges that the Court had no Iurisdiction a Prohibition shall be granted and 't is no Estoppel that he did not take advantage of it before 1 Roll. Abr. 545. But Iustice Atkins and Scroggs were of another Opinion they agreed that if an Action be brought in an Inferior Court if it be not said to be infra Jurisdictionem Curiae they would never presume it to be so but rather to be without if not alledged to be within the Iurisdiction and here in the Plea 't is not shewn at all so that as the Case stands upon the Plea the Proceédings are coram non Judice and there is no legal Authority to warrant them and by consequence the Officer is no more to be excused than the Party because also 't is in the Case of a particular Iurisdiction And so it hath béen adjudged upon an Escape brought against an Officer of an Inferior Court wherein the Plaintiff declared that he had brought an Action upon a Bond against S. in the Court of Kingston and that he had Iudgment and Execution and the Defendant suffered him to escape this Declaration did not charge the Defendan because the Bond was not alledged to be made infra Jurisdictionem Curiae for though such an Action is transitory in its nature yet the Proceedings in an inferior Court upon it are coram non Judice if it doth not appear to be infra Jurisdictionem 1 Roll. Abr. 809. though in the Case of a general Iurisdiction it might be otherwise But here the Rejoynder doth help the Plea for the Plaintiff having replied that the Trespass was committed out of the Iurisdiction and the Defendant having rejoyned that he had alledged in his Declaration below that the Trespass was done within the Iurisdiction 't is now all one Plea and the Plaintiff hath confessed it by his Demurrer so that in regard it was alledged below and admitted there 't is a good Plea both for Officer and Party and the Plaintiff cannot now take advantage of it but is concluded by his former admittance and it shall not be enquired now whether true or false And as to the taliter processum fuit they all held it well enough and that there was no necessity of setting out all the Proceedings here as in a Writ of Error And as to the last Exception 't is said that the Burrough of Warwick is antiquus Burgus and that the Court is held there secundum consuetudinem which is well enough Jones's Case Common Pleas cannot grant Habeas Corpus in Criminal Cases IT was moved for a Habeas Corpus for one Jones who was committed to New Prison by Warrant from a Iustice of Peace for refusing to discover who intrusted him with the keeping of the Keys of a Conventicle and for that he had been instrumental to the Escape of the Preacher he was asked by the Iustice to give Security for his Good Behaviour which he also refused and thereupon was committed The Chief Iustice doubted that a Habeas Corpus could not be granted in this Case because it was in a criminal Cause of which the Court of Common Pleas hath no Iurisdiction and that seemed to be the Opinion of my Lord Coke Vaugh. 157. 2 Inst 53. 2 Inst 55. where he saith it lies for any Officer or priviledged Person of the Court. There are three sorts of Habeas Corpus in this Court one is ad respondendum Mod. Rep. 235. which is for the Plaintiff who is a Suitor here against any Man in Prison who is to be brought thereupon to the Barr and remanded if he cannot give Sureties There is another Habeas Corpus for the Defendant ad faciend ' recipiend ' as to this the same Iurisdiction is here as in the Court of Kings Bench if a person be near the Town by the course of the Court he may be brought hither to be charged and then the Habeas Corpus is returnable immediate but if he be remote it must then be returnable in the Court at a certain day these are the Habeas Corpus's which concern the Iurisdiction of this Court and are incident thereunto There is another which concerns Priviledge when the Party comes and subjects himself to the Court to be either bailed or discharged as the Crime is for which he stands charged and if he be priviledged this Court may examine the Case and do him right if a private man be committed for a criminal Cause we can examine the Matter and send him back again Before King James's Reign there was no Habeas Corpus but recited a Priviledge as in the Case of Priviledge for an Attorny so that if this Court cannot remedy what the Party complains 't is in vain for the Subject to be put to the trouble when he must be sent back again neither can there be any failure of Iustice because he may apply himself to a proper Court and of the same Opinion were Wyndham and Scroggs But Iustice Atkins was of another Opinion for he could see no Reason why there should not be a Right to come to this Court as well as to the Kings Bench. And that Vaughan Wild and Archer Iustices were of Opinion that this Court may grant a Habeas Corpus in other Cases besides those of Priviledge Afterwards the Prisoner was brought to the Court upon this Habeas Corpus but was remanded because this Court would not take Sureties for his Good Behavior The Chief Iustice said that when he was not on the Bench he would take Sureties as a Iustice of Peace And Monday late Secondary informed him that Iustice Wild when he sate in this Court did once take such Sureties as a Iustice of Peace Anonymus IT was the Opinion of the Chief Iustice North In Replevin both are Actors that in a Replevin both Parties are Actors for the one sues for Damages and the other to have the Cattle and there the place is material for if the Plaintiff alledges the taking at A. and they were taken at B. the Defendant may plead Non cepit modo forma but then he can have no Return for if he would have a Retorn ' Habend ' he must deny the taking where the Plaintiff hath laid it and alledge another place in his Avowry Sir Osborn Rands versus Tripp THE Plaintiff was a Tobacconist and lived near Guild-Hall London he married the Daughter of the Defendant New Trial granted who was an Alderman in Hull and had 400 l. Portion with her after the Marriage the Defendant spoke merrily before thrée Witnesses That if his Son-in-Law would procure himself to be Knighted so that his Daughter might be a Lady he would then give him 2000 l. more and would pay 1000 l. part thereof presently upon such Knighthood and the
be in an Act of Parliament to restrain the power of the Courts at Westminster 128 Negative pregnant 138 Negative Plea that three did not such a thing it must be said nec eorum aliquis 284 285 Non Obstante Where it makes a Grant good 107 Where a general Non obstante will not dispense with a particular Statute 261 Notice Where the Agreement is that it shall be in writing it must be so pleaded 268 Where 't is made to the Testator alone it shall not be personal but is good if given to the Executor 268 269 O. Oath EX Officio lawful 118 Where it ought to be made of the loss of a Deed to entitle a Man to a Bill in Equity 173 Office and Officer Grant thereof to two and the Survivor one surrenders and another is admitted the benefit of Survivorship is gon 95 96 Of the Warden of the Fleet not to be granted for years 120 Where a person recomended proves insufficient the recommender shall be liable 121 In an Office of Trust there shall be no Survivorship 260 Officer excusable for executing an erroneous Process 196 Ordinary When his Power began 148 Outlary Pleaded in Disability to an Information and good 267 268 Where it needed not to be pleaded sub pede sigilli being in the same Court 267 P. Parish HOW it differs from a Vill 237 Pardon Where nothing vests but by Office found a Pardon restores the Party 53 Where the thing it self is pardoned and the consequence not 52 Parliament Where the time of the Session is misrecited and yet good 241 Where the Court ought to take notice of the commencement of a private or general Act 241 Difference between an Adjournment and a Prorogation 242 Partners The Action cannot be brought against one without setting forth the death of the other 280 If Judgment be against one the Goods of the other may be taken in Execution ibid. Paying In the Case of an Heir is not a Condition but a Limitation 286 Place Where it shall be intended not being laid in the pleadings 304 Pleas and Pleading What the Parties have admitted in pleading shall be good though the Jury find otherwise 5 Shall not afterwards be assigned for Error 193 194 Pleading of a Grant of a Reversion without hic in Curia prolat ' whether good or not 19 In Dower that the Demandant ought to have Judgment de tertia and doth not say parte and yet good 17 18 19 Award nullum fecerunt arbitrium de praemissis whether good without adding nec de aliqua parte 27 28 29 Plea to a Bond not good 33 A Judgment ultra quod no Assets where good 36 Estoppel you must relie upon it and not conclude with a Traverse 37 38 One promise in discharge of another where good or not 43 44 Of an accord in must be averred to be executed in all points 43 Replication where the Heir pleads a Settlement in Tail and a Lease for 99 years and that he had not Assets praeter the Reversion a general Replication of Assets is good because the praeter is idle 50 51 Justification in Trespass for taking corrupt Victuals held good 56 Justification by Arrest upon process out of an Inferiour Court 58 59 Justification by the Defendant where he must shew the Commencement of his Estate or not 70 71 Where 't is incertain 76 Touts temps prist not good after Imparlance 62 Profert hic in Curia where it must be pleaded formally 77 78 It must be pleaded when the Title is by Deed either as party or privy 64 De injuria propria sua where a Servant is Defendant 't is good without a Traverse 68 Plea where 't is naught with a Traverse ibid. Where the Defendant may plead any thing which amounts to a performance 139 Where the Defendant was charged with receiving 80 Pigs of Lead and he saith that he was not Receiver but omits aliquam partem inde the Plea was ill 146 Hoc paratus est verificare where good or not ibid. The Defednant was charged as Bayliff 1 Martii he saith he was not from the 1st of March and so excludes the day 146 In Covenant for not Repairing the Defendant pleads recuperavit generally and held good after Verdict 176 Affirmative Plea ought to be particular as if the Defendant pleads a Conveyance made he must shew what 239 Of another Action depending for the same Cause in another Court 246 Where good though it amounts to the general Issue 274 275 276 277 278 Argumentative Plea where good 276 Negative Plea viz. that three did not such a thing the Defendant must say nec eorum aliquis 284 Otherwise in an affirmative Plea ibid. Plea puis darrein Continuance must be certified as part of the Record of Nisi Prius 307 Non damnificatus generally no good Plea where the person and Lands are to be indempnified 305 Where a Judgment shall be avoided by a Plea without bringing of a Writ of Error the party being a Stranger to it 308 Prescription Not to be pleaded against another without a Traverse of the first 104 Must be alledged with a Seisin in Fee and not for Life 318 To a Modus where good 320 Presentation The King being entituled by the Symony of the Patron presents though the Symony be pardoned the Presentee shall not be removed 52 53 54 Between three by turns they are Tenants in Common of the Advowson and one may grant the next Avoidance the Church being full 97 How it must be pleaded tempore pacis 184 185 Possibility A Grant made thereof and good 106 107 By an Executor before Probate is but a Possibility and yet good 108 Priviledge Will not extend to a Case of necessity 182 Of a Serjeant at Law 296 Of an Attorny of the Kings Bench 181 Process Where an Action will not lie against the Defendant for doing a thing in Execution of the Process of Law 244 Prohibition To the Bishops Commission to set Rates upon the Parishioners to repair the Church 8 Prohibition printed in English and dispersed a Crime fit to be punished 119 Not granted for a Rate for building of a Church 222 223 Where it shall be granted at any time 273 Where a Sentence of Divorce was intended to adnul a Marriage 314 Upon a Suggestion of Excommunication because he refused to accuse himself 278 Power Where 't is coupled with an Interest 't is assignable 317 Promise Where they are mutual the performance need not be averred 33 34 Purchase Where the Heir takes by Purchase the Ancestor must depart with his whole Fee 208 Where the Heir shall take by Purchase and where by Descent 286 Q. Quare Impedit REal Mainpernors must be returned upon the Summons Pone and Grand Cape if the disturber do not appear and not John Doe and Richard Roe 264 265 Que Estate Where 't is pleadable 143 144 R. Rates FOR building of a Church shall be set by the Parishioners 222 Recital Where a Title is set
Termino Paschae Anno 27 Car. II. in Communi Banco Naylor versus Sharpless and other Coroners of Lancashire AN Action on the Case was brought for a False Return in which the Plaintiff sets forth Case for a false Return Mod. Rep. 198. that upon a Writ issuing out of this Court to the Chancellor of the Dutchy of Lancaster Process was directed to six Coroners being the Defendants which was delivered to one of them being then in the presence of the Party who was to be arrested but he did not execute it and afterwards at the Return of the Writ they all returned Non est inventus This Action was laid in Middlesex and upon Not-Guilty pleaded the Cause came to Tryal and there was a Verdict for the Plaintiff Baldwyn Serjeant moved in arrest of Iugdment 1. Except That the Action ought not to be laid in Middlesex but in Lancashire where the Tort was committed But as to that it was answered by Serjeant Turner when two Matters both of which are material and are laid in two Counties the Action may be brought in either as if two libel in the Admiralty for a Contract made at Land in Dorsetshire and for which the Plaintiff brings an Action in London against one of them it has been adjudged the Action lies in either County 2. Except The Action will not lie against the six Coroners for the Tort was done by one alone As to that it was said all the Coroners are but one Officer so if one Sheriff suffer an Escape both are liable but in this Case it had been ill to have brought the Action only against one because the ground of it is the false Return which was made by six Coroners And as to the first Exception there could be no doubt now since after Verdict 't is * Stat. 16 17 Car. 2. c. 8. helped though the Trial be in a wrong County But the Court said that Statute helps a Mistrial in the proper County but not where the County is mistaken and inclined likewise that this Action was well brought against the six for this Tort committed by one Coroner but if it had béen for not arresting the Party in such a Case it ought to have been brought against the Coroner who was present with the person to be arrested for that had béen a personal Tort which could not have been charged upon the rest Edwards versus Roberts That he did totally forbear and doth not say hucusque good THE Plaintiff declares that the Defendant promised to pay him so much Mony in consideration that he would forbear to sue him and then he avers that he did extunc totaliter abstinere c. Vpon Non Assumpsit pleaded a Verdict was found for the Plaintiff And it was now moved by Turner Serjeant in Arrest of Iudgment 1. Except The consideration intends a total forbearance and the averment is that from the making of the promise he did totally forbear but doth not say hucusque Sed non allocatur for that shall be intended And it was the Opinion of the whole Court that if the Consideration be as in this Case wholly to forbear the Plaintiff by an Averment that from the making the promise hucusque he did forbear is well entituled to an Action A like Case was this Term where the Consideration was as before and the Averment was that he forbore seven Months and being moved in Arrest of Iudgment by Serjeant Baldwyn because 't is not said hucusque which implies that after the seven Months he did not forbear it was notwithstanding held good it being a reasonable time and the rather because if the Action had been brought within the seven Months and the Plaintiff had averred that hucusque he forbore it had been good enough Quaere Reed versus Hatton IN a special Verdict in Ejectment the Question did arise upon the construction of the Words in a Will Devise paying 5 l. per annum 't is a Fee The Case being this John Thatcher was seised in Feé of the Houses in question and did devise them to his Son Robert in which Will there was this Clause viz. Which Houses I give to my Son Robert upon this Condition that he pay unto his two Sisters five pounds a year the first payment to begin at the first of the four most usual Feasts that shall next happen after the death of the Testator so as the said Feast be a Month after his death with a Clause of Entry for Non-payment The Testator dies the Houses are worth 16 l. per annum and whether Robert the Son shall have an Estate for Life only or in Fee was the Question This was argued by Jones Serjeant for the Plaintiff and by Seys Serjeant for the Defendant And for the Plaintiff it was said Ex parte Quer. that Robert had but an Estate for Life 'T is true in most Cases the Word paying makes a Fee where there is no express Fee limited but the difference is viz. where the Mony to be paid is a Sum in gross let it be equivalent or not to the value of the thing devised the Devisee shall have a Fee though the Estate be not devised to him and his Heirs but if it be an annual payment out of the thing devised as in this Case it will not create a Fee without apt words because the Devisée hath no loss and therefore it hath beén held that if a Devise be made to two Sons to the intent that they shall bear equal share towards the payment of 40 l. to his Wife for Life the Sons had only an Estate for Life because 't is quasi an annuel Rent out of the Profits and no Sum in gross * Jones 211. Cro. Car. 157. Broke Abr. tit Estate 78. And * 6 Co. 16. Colliers Case was much relied on where this very difference was taken and allowed that paying 25 l. in gross makes a Fee but paying 50 s. per annum creates only an Estate for Life All Devises are intended for the benefit of the Deviseé and therefore where a Sum in gross is devised to be paid which is done accordingly in such Case if the Deviseé should die soon after the Mony would be lost if he should have only an Estate for Life but in the Case at Bar the Testator by a nice calculation had appointed when the first payment should be made viz. not until a Month after his decease which hath prevented that damage which otherwise might have happened to the Devisee if no such provision had béen made Vide Hob. 65. Green's Case Ex parte Def. But on the other side it was said that Robert had a Fée for though here is a Sum to be paid annually 't is a Sum in gross and Collier's Case was also relied upon on this side It was agreed where payment is to be made by which the Devisee can sustain no loss the Word Paying there will not make a Fée but if there
against the Common Prayer Book and the Defendant having forbid such Preaching the Lord told him that he did not like him upon which he spoke those Words so that the subject matter explained the sense for which reason it was adjudged that the Action would not lie 2. The scandal for which an Action may be brought within this Statute must be false for that word goes quite through the whole Act viz. false News false Lyes c. and the words here are so general that it cannot appear whether they are true or false for there can be no Iustification here as in case where a Man is charged with a particular Crime my Lord Townsend is not charged with any particular Act of Injustice as a Subject nor with any Misdemeanour as a Peer nor with any Offence in an Office If therefore in all Actions brought upon this Statute the Defendant may justifie and put the matter in Issue to try whether it be true or false and in this Case the Defendant can neither justifie nor traverse for this reason the Action will not lie That the Words are general and of a doubtful signification it cannot be denied for to say He is an unworthy Man imports no particular Crime Unworthy is a term of Relation as he is unworthy of my Friendship Acquaintance or Kindred and so may be applicable to any thing and a Lord may in many things be unworthy of a particular Mans Friendship as if he promises to pay a Sum of Mony at a day certain and faileth in the payment as 't is often seén such is an unworthy Man but that will not bear an Action He is an unworthy Man who invites another to Dinner to affront him but it will not bear an Action to say That a Lord invited me to a Dinner to abuse me neither will it be actionable to say He is an unworthy Man because such instances may be given of his Vnworthiness which will not bear an Action If my Lord had beén compared to any base and unworthy thing these Words might have béen actionable and that was the Case of the Lord Marquess of Dorchester it being said of him That there was no more value in him than in a Dog Then to say A Man acts against Law this is no Scandal because every Man who breaks a Penal Law and suffers the Penalty is not guilty of any Crime The Statute commands the burying in Woollen the Party buries one of his Family in Linnen in this he acts against the Law but if the Penalty is satisfied the Law is so likewise A Man who acts against Law acts against Reason because Lex est summa ratio but no instance is here given wherein he did thus act 'T is not said that he did act against Law wilfully or that he used to do any thing against Law and so cannot be like the Case of the Duke of Buckingham who brought an Action for these Words viz. You are used to do things against Law and put Cattle into a Castle where they cannot be replevied for there was not only an Vsage charged upon him but a particular instance of Oppression This Action lies for Words spoken of a Iudge of either Bench and of a Bishop as well as of a Peer Now if a Man should say A Judge acted against Law will an Action lie Because a Iudge may do a thing against Law and yet very justly and honestly unless all the Iudges were infallible and could not be subject to any mistakes which none will deny So if a Bishop return the Cause of his Refusal to admit a Clerk quia criminosus this is a Return against Law because 't is too general but if J. S. should say A Bishop acted against Law and shew that for Cause an Action would not lye If the the Lord Townsend had commanded his Bayliff to make a Distress without Cause that had been acting against Law and Reason He agreed the Words to be uncivil but not actionable for if such Construction should be made a Man must talk in Print or otherwise not speak any thing of a Peer for fear of an Action There are many Authorities where a Péer shall not have an Action for every trivial and slight Expression spoken of him As to say of a Péer He keeps none but Rogues and Rascals about him like himself by the Opinion of two Iustices Yelverton and Flemming the Action would not lie because they are Words of Scolding and this was the Case of the Earl of Lincoln Cro. Jac. 196. But the Court was divided the Defendant died and so the Writ abated Actions for Words have béen of late too much extended formerly there were not above two or three brought in many years and if this Statute should be much inlarged the Lords themselves will be prejudiced thereby by maintaining Actions one against another Vpon this Statute of 2 R. 2 c. 5 there was no Action brought till 13 H. 7. which was above an hundred years after the making of that Law and the occasion of making the Law was because the Duke of Lancaster who was then the first Prince of the Blood took notice that divers were so hardy as to speak of him several lying Words 1 R. 2. num 56. and therefore this Statute was made to punish those who devised false News and horrible and false Lies of any Peer c. whereby Discords might arise between the Lords and Commons and great Peril and Mischief to the Realm and quick Subversion thereof Now from the natural intent and construction of these Words in the Act can it be supposed that if one should say Such a Peer is an unworthy Man that the Kingdom would be presently in a flame and turned into a state of confusion and Civil War and to say That he acts against Law that the Government would thereby be in danger to be lost and quick Subversion would follow This cannot be the common and ordinary understanding of these Words If therefore the Plaintiff by speaking these Words was in no hazard nor any wise damnified if he was not touched in his Loyalty as a Péer nor in danger of his Life as a Subject if he was not thereby subjected to any Corporal or Pecuniary Punishment nor charged with any Breach of Oath nor with a particular Miscarriage in any Office if the Words are so general that they import no Scandal and are neither capable of any Iustification and lastly if they are not such horrible Lies as are intended to be punished by the Statute for these Reasons he concluded the Action would not lie and therefore prayed that the Iudgment might be arrested Serjeant Baldwin and Serjeant Barrel argued on the same side for the Defendant but nothing was mentioned by them which is not fully insisted on in the Argument of Serjeant Maynard for which Reason I have not reported their Arguments But Pemberton Serjeant who argued for the Plaintiff said Ex parte Quer. that it would conduce much to
many Settlements would be shaken in which nothing was more usual now than to Covenant to stand seised to the Vse of himself and the Heirs Males of his Body c. They all agreed also That the Estate being well limited William should take per formam Doni as special Heir for Voluntas Donatoris in charta manifeste expressa observetur and 't is apparent Thomas intended that William should have it or else the Limitation to his Heirs Males had been needless So that taking it for granted that the Estate Tail once vested is not spent by his dying without Issue but it comes to William by descent and not as a Purchasor for so he could not take it because he is not Heir and till Thomas be dead without Issue the Tail cannot be spent so there was no difficulty in that Point And they held the Opinions of Dyer and Saunders in Creswold's Case to be good Law who were divided from the other Iustices but they doubted of Pybus and Mitford 's Case whether it was Law or not they doubted also whether by any Construction Thomas could be said to have an Estate for Life by implication they doubted also of the springing Vse but they held that this Limitation was good in its creation and Iudgment was given accordingly Cockram Executor versus Welby Statute of Limitations not pleadable by a Sheriff who levied mony by fi fa. and nine years pass Mod. Rep. 245. IN Debt the Plaintiff declared that his Testator recovered a Iudgment in this Court upon which he sued out a Fieri facias which he delivered to the Defendant being Sheriff of Lincoln and thereupon the said Sheriff returned Fieri feci but that he hath not paid the Mony to the Plaintiff per quod actio accrevit c. The Defendant pleaded the Statute of Limitations to which the Plaintiff demurred And the question was whether this Action was barely grounded on the Contract or whether it had a Foundation upon matter of Record If on the Contract only then the Statute of 21 Jacobi cap. 16. is a good Plea to barr the Plaintiff of his Action which Enacts That all Actions of Debt grounded upon any Lending or Contract without Specialty shall be brought within six years next after the Cause of Action doth accrew and in this Case nine years had passed But if it be grounded upon matter of Record that is a Specialty and then the Statute is no barr Serjeant Barrel held this to be a Debt upon a Contract without specialty for when the Sheriff had levied the Mony the Action ceases against the Party and then the Law creates a Contract and makes him Debtor as it is in the Case of a Tally delivered to a Customer It lies against an Executor where the Action arises quasi ex contractu which it would not do if it did not arise ex maleficio as in the Case of a Devastavit 'T is true The Iudgment recovered by the Testator is now set forth by the Plaintiff Executor but that is not the ground but only an inducement to the Action for the Plaintiff could not have pleaded nul tiel Record so that 't is the meer receiving the Mony which charges the Defendant and not virtute Officii upon a false return for upon the receipt of the Mony he is become Debtor whether the Writ be returned or not and the Law immediately creates a Contract and Contracts in Law are as much within the Statute as Actual Contracts made between the Parties All which was admitted on the other side but it was said that this Contract in Law was chiefly grounded upon the Record and compared it to the Case of Attornies Fees which hath been adjudged not to be within the Statute though it be quasi ex contractu because it depends upon Matter of Record Rolls Abridg. tit Debt 598. pl. 17. And afterwards in Michaelmas-Term following by the Opinions of the Chief Justice Wyndham and Atkins Iustices it was held that this Case was not within the Statute because the Action was brought against the Defendant as an Officer who acted by vertue of an Execution in which Case the Law did create no Contract and that here was a Wrong done for which the Plaintiff had taken a proper remedy and therefore should not be barred by this Statute Iustice Scroggs was of a contrary Opinion for he said if another received Mony to his use due upon Bond the Receipt makes the Party subject to the Action and so is within the Statute But by the Opinions of the other Iustices Iugdment was given for the Plaintiff Major versus Grigg In Banco Regis THE Plaintiff brought an Action Covenant to save harmless and the Plaintiff sets forth no Title in the disturber good after Verdict Cro. Eliz. 914. Cro. Jac. 315 425. Vaugh. 120 121. 2 Sand. 178. Mod. Rep. 66. for that the Defendant Non indempnem conservavit ipsum de concernente occupation̄ quorundam clausorum c. secundum formam agreamenti and sets forth a disturbance by one who commenced a Suit against him in such a Term concernente occupation̄ clausorum praed ' but doth not set forth that the person suing had any Title which it was said ought to have been shewn as if a Man makes a Lease for years and covenants for quiet enjoyment in an Action brought by the Lessee upon that Covenant it must be shewn that there was a lawful Title in the person who disturbed or else the Action will not lie But this being after a Verdict and the Plaintiff setting forth in his Declaration that the disturber recovered per Judicium Curiae the Court now were all of Opinion that Iudgment should be given for the Plaintiff Taylor versus Baker In Banco Regis Payment to the Marshal no discharge to the Plaintiff at whose Suit the Defendant was in Execution Jones 97. THE Case was viz. a Man being in Execution doth actually pay the Mony to the Marshal for which he was imprisoned and thereupon was discharged and whether he should pay it again to the Plaintiff upon a second Execution was the Question Sanders argued that he should not pay it again he said this Case was never adjudged and therefore could produce no Authority in Point to warrant his Opinion but parallel Cases there were many As if the Sheriff take Goods in Execution by vertue of a Fieri Facias whether he sells them or not yet being taken from the party against whom the Execution was sued he shall plead that taking in discharge of himself and shall not be liable to a second Execution though the Sheriff hath not returned the Writ and the reason is because the Defendant cannot avoid the Execution and he would therefore be in a very bad condition if he was to be charged the second time And if the Sheriff should die after the Goods are taken in Execution his Executors are liable to the Plaintiff to satisfie the debt for they have paid pro
inconvenient that the Capias against the Defendant should be delivered to the new Sheriff and not the Supersedeas which was to admit the Charge and not the Discharge Westby's Case 3 Co. 73. And it was the constant practice not only to deliver the Supersedeas but the very Book in which 't is allowed and this he said appeared by the Certificates of many Vnder-Sheriffs which he had in his hand 2. If the Sheriff hath an Exigent against B. who appears and brings a Supersedeas to the old Sheriff and then a new Sheriff is made if he hath not the Supersedeas he may return him outlawed by vertue of the Exigent so in the Case of a Iudgment set aside for Fraud or Practice and a Supersedeas granted and the like in the case of an Estrepment which is never returned and it would be an endless work upon the coming in of every Sheriff to renew this Writ As to the Objection that the old Sheriff may have occasion to plead it As often as such occasion happens he may have recourse to it in the Office of the new Sheriff and he can have no Title to it by the direction of the Writ for that is Vicecomiti Berks and not to him by express Christian and Sirname and of that Opinion was all the Court and Iudgment was given accordingly nisi causa c. Hamond versus Howel Recorder of London An Action will not lie against a Judge for what he doth judicially tho' erroniously Mod. Rep. 184. FAlse Imprisonment The Defendant pleads specially the Substance of which was that there was a Commission of Oyer and Terminer directed to him amongst others c. and that before him and the other Commissioners Mr. Penn and Mr. Mead two Preachers were indicted for being at a Conventicle to which Indictment they pleaded Not-Guilty and this was to be tried by a Iury whereof the Plaintiff was one and that after the Witnesses were sworn and examined in the Cause he and his Fellows found the Prisoners Penn and Mead Not-Guilty whereby they were acquitted quia the Plaintiff male se gesserit in acquitting them both against the direction of the Court in Matter of Law and against plain Evidence the Defendant and the other Commissioners then on the Bench fined the Iury 40 Marks a-piece and for Non-payment committed them to New-gate c. The Plaintiff replies de injuria sua propria absque hoc that he and his Fellows acquitted Penn and Mead against Evidence and to this the Defendant demurred Serjeant Goodfellow who would have argued for the Defendant said that he would not offer to speak to that Point whether a Iudge can fine a Iury for giving a Verdict contrary to Evidence since the Case was so lately and solemnly resolved by all the Iudges of England in * Vaugh. 146. Bushel's Case that he could not fine a Iury for so doing But admit a Iudge cannot fine a Iury yet if he doth no Action will lie against him for so doing because 't is done as a Iudge 12 H. 4. 3. 27 Ass pl. 12. 1 Roll. Abr. 92. Liter Q. pl. 1. But the Court told him that he neéd not to labour that Point but desired to hear the Argument on the other side what could be said for the Plaintiff Serjeant Newdigate argued that this Action would lie 1. It must be admitted that the Imprisonment of the Iury was unlawful and then the consequence will be that all that was done at that time by the Commissioners or Iudges was both against Magna Charta and other Acts of Parliament the Petition of Right c. and therefore their Proceedings were void or at least very irregular to imprison a Iury-man without Presentment or due Process in Law and consequently the party injured shall have an Action for his false Imprisonment In 10 H. 6. f. 17. In an Action brought for false Imprisonment the Defendant justifies the Commitment to be for Suspicion of Felony but because he did not shew the ground of such Suspicion the Iustification was not good The Trial of Penn and Mead and all incidents thereunto as swearing the Iury examining of the Witnesses taking of the Verdict and acquitting the Prisoner were all within the Commission but the fining of the Iury and the imprisoning of them for Non-payment thereof was not justifiable by their Commission and therefore what was done therein was not as Commissioners or Iudges If this Action will not lie then the Party has a Wrong done for which he can have no remedy for the order for paying of the Fine was made at the Old-Bayly upon which no Writ of Error will lie and though the Objection that no Action will lie against a Iudge of Record for what he doth quatenus a Iudge be great the Reason of which is because the King himself is de jure to do Iustice to his Subjects and because he cannot distribute it himself to all persons he doth therefore delegate his Power to his Iudges and if they misbehave themselves the King himself shall call them to account and no other person 12 Co. 24 25. But that concerns not this Case because what was done here was not warranted by the Commission and therefore the Defendant did not act as a Iudge and this difference hath beén taken and allowed that in the Case of an Officer if the Court hath Iurisdiction of the Cause no Action will lie against him for doing what is contrary to his Duty but if all the Proceédings are coram non Judice and so void an Action doth lie 10 Co. 77. So in the Case of a Iustice of the Peace or Constable where he excéeds his particular Iurisdiction so if a Iudge of Nisi Prius doth any thing not warranted by his Commission 't is void And that the Commissioners here had no power to impose this Fine he argued from the very nature of the pretended Offence which was neither a Crime or in any wise punishable because what the Plaintiff did was upon his Oath and for that reason it hath béen adjudged in the Case * Bridgman 131. Agard and Wild that an Action would not lie against one of the Grand Iury after an acquittal for procuring one to be indicted for Barretry because he is upon his Oath and it cannot be presumed that what he did was in Malice The Habeas Corpus gives the Party Liberty but no Recompence for his Imprisonment that must be by an Action of False Imprisonment if otherwise there would be a failure of Iustice and it might encourage the Iudges to act ad libitum especially in inferior Courts where Mayors and Bayliffs might punish Iuries at their pleasures which would not only be a grievance to the Subject but a prejudice to the King himself because no Iuries would appear where they are subject to such arbitrary Procéedings An Action on the Case lies against a Iustice of the Peace for refusing to take an Oath of a Robbery committed 1 Leon. 323.
and yet it was objected that there he was a Iudge Quaere Brook 204. March 117. for which Reasons he prayed Iudgment for the Plaintiff Curia But the whole Court were of Opinion that the bringing of this Action was a greater Offence that fining of the Plaintiff and committing of him for Non-payment and that it was a bold attempt both against the Government and Iustice in general The Court at the Old-Bayly had Iurisdiction of the Cause and might try it and had power to punish a Misdemeanour in the Iury they thought it to be a Misdemeanour in the Iury to acquit the Prisoners which in truth was not so and therefore it was an Error in their Iudgments for which no Action will lie How often are Iudgments given in this Court reversed in the Kings Bench And because the Iudges have been mistaken in such Iudgments must that needs be against Magna Charta the Petition of Right and the Liberties of the Subject These are mighty words in sound but nothing to the Matter There hath not béen one Case put which carries any resemblance with this those of Iustices of the Peace and Mayors of Corporations are weak instances neither hath any Authority been urged of an Action brought against a Iudge of Record for doing any thing quatenus a Iudge That Offences in Iury-men may be punished without Presentment is no new Doctrin as if they should either eat or drink before they give their Verdict or for any contempt whatsoever but 't is a new Doctrin to say that if a Fine be set on a Iury-man at the Old-Bayly he hath no remedy but to pay it for a Certiorari may be brought to remove the Order by which it was imposed and it may be discharged if the Court think fit As to what hath been Objected concerning the Liberty of the Subject that is abundantly secured by the Law already a Iudge cannot impose upon a Iury for giving their Verdict contrary to Evidence if he doth any thing unjustly or corruptly complaint may be made to the King in whose Name Iudgments are given and the Iudges are by him delegated to do Iustice but if there be Error in their Iudgments as here 't is void and therefore the Barons of the Exchequer might refuse to issue Process upon it and there needs no Writ of Error for the very Estreats will be vacated Though the Defendants here acted erroneously yet the contrary Opinion carried great colour with it because it might be supposed very inconvenient for the Iury to have such liberty as to give what Verdicts they please so that though they were mistaken yet they acted judicially and for that Reason no Action will lie against the Defendant and Iudgment was given accordingly The Case of the Warden of the Fleet. COmplaint was made by Serjeant Turner on the part of the Parishioners of St. Brides London against the Warden of the Fleet and his Prisoners for that he suffered several of them to be without the Walls of his Prison in Taverns and other Houses adjoyning to the Prison and fronting Fleet-Ditch where they committed Disorders and when the Constable came to keep the Peace and to execute a Warrant under the Hand and Seal of a Iustice of Peace they came in a tumultuous manner and hindered the execution of Iustice and rescued the Offenders and often beat the Officers the Warden often letting out 20 or 30 of his Prisoners upon any such occasion to inflame the Disorder It was prayed therefore That this Court to which the Prison of the Fleet doth immediately relate might give such Directions to the Warden that these Mischiefs for the future might be prevented and that the Court would declare those Houses out of the Prison to be subject to the Civil Magistrate The Court were all of Opinion but Iustice Atkins Curia who doubted that nothing can properly be called the Prison of the Fleet which is not within the Walls of the Prison and that the Warden cannot pretend an exemption from the Authority of the Civil Magistrate in such places as are out of the Prison Walls though Houses may be built upon the Land belonging to the Fleet for the preservation of the Kings Peace is more to be valued than such a Private Right But Iustice Atkyns said if such places were within the Liberties of the Fleet he would not give the civil Magistrate a Iurisdiction in prejudice of the Warden but thought it might be fit for the Court to consider upon what reason it was that the Warden of the Fleet applied such Houses to any other uses than for the benefit of the Prisoners whereupon the Court appointed the Prothonotaries to go thither and give them an account of the matter and they would take farther Order in it St. Mary Magdalen Bermondsey Church in Southwark In Scaccario Rate for Building a Church shall be set by the Parishioners Jones 89. Mod. Rep. 236. IN a Prohibition it was the Opinion of the whole Court That if a Church be so much out of Repair that 't is necessary to pull it down and that it cannot be otherwise repaired that in such case upon a general warning or notice given to the Parishioners much more if there be notice given from House to House the major part of the Parishioners then present and meeting according to such notice may make a Rate for pulling down of the Church to the Ground and Building of it upon the old Foundation and for making of Vaults where they are necessary as they were in this Church by reason of the springing Water and though the Rate be higher than the Mony paid for doing all this yet 't is good and the Churchwardens are chargeable for the Overplus they not being able to compute to a Shilling That if any of the Parishioners refuse to pay their Proportion according to the Rate they may be Libelled against in the Spiritual Court and if the Libel alledge the Rate to be pro reparatione Ecclesiae generally though in strictness Ecclesia contains both the Body and Chancel of the Church yet by the Opinion both of the Court of Common Pleas and of the Exchequer It shall be intended that the Rate was only for the Body of the Church but in this Case it was made appear clearly that the Rate was only for the Body and that the Minister was at the charge of the Chancel And both Courts agreed That when a Prohibition is moved and desired on purpose to stop so good a Work as the Building a Church the Court will not compel the Parties to take Issue upon the Suggestion when upon examination they find it to be false and therefore will not grant a Prohibition for if the Rate be unduly imposed the Party grieved hath a Remedy in the Spiritual Court or may Appeal if there be a Sentence against him The Bishop or his Chancellor cannot set a Rate upon a Parish but it must be done by the Parishioners themselves
Trotter versus Blake In Scaccario THIS was the Case of my Lord Hollis upon a Tryal at the Barr in the Exchequer in an Ejectione firmae Ejectment will not lie for a Forfeiture where the Tenant refused to pay a Fine being doubtful wherein the Case was this viz. The Lord Hollis was seised of the Mannor of Aldenham in the County of Hartford in Fee and the Lands in question were held of the said Lord by Copy of Court Roll and are parcel of the aforesaid Mannor That the Defendant was admitted Tenant and a Fine of 8 l. imposed upon him for such admittance payable at three distinct payments that the 8 l. was personally demanded of him by the Lord's Steward and he refused payment whereupon the Lord enters and seises the Estate for a Forfeiture which he would not have insisted on but that the obstinacy of the Defendant made it necessary for him to assert his Title and Right Mr. Walker the Lord Hollis his Steward being sworn gave Evidence that a Fine of 8 l. was set upon the Defendant when he was admitted and that the Lands to which he was admitted were usually lett for 7 l. per annum so that the Fine was but a little more than a years value That he himself demanded the 8 l. of the Defendant being a Seafaring-man who refused to pay it That he knew the Defendant to be the same person who was admitted to this Copyhold That the Demand was made at the Stewards Chamber in Staple Inn and because it was payable at three several days he then demanded of him only 2 l. 13 s. 4 d. as a third part of the 8 l. and that he did enter upon the 25th day of November last for Non-payment of the said 2 l. 13 s. 4 d. The Council for the Defendant insisted that the Steward ought to produce an Authority in Writing given to him by the Lord to make this Demand and Entry upon refusal Ex parte Def. for the Lords owning it afterwards will not make a Forfeiture But the Court held clearly that there was no need of an express Authority in Writing Curia and that it was not necessary for the Steward to make a Precept for the seizure but that it was necessary that the Demand should be personal The Reason why the Defendant refused to pay this Fine was because he said that by a Decree and Survey made of this Mannor in the Reign of Queen Elizabeth the Fine to be paid for this Copyhold was setled and it was but 3 l. and no more And Sir Francis Winnington Solicitor General said for the Defendant that the Case was very penal on his side but that he would make it clear that there was no colour for the bringing of this Action either as to the Matter or the Form He said that the Mannor of Aldenham had not been long in this noble Lord he came in as Purchaser or a Mortgagee under the Family of the Harvies whose Inheritance it was anciently and there has been some doubt whilst it was in their possession what Fines were customary to be paid upon Descents and Alienations but that is now settled and the Defendant was in the Case of a descent for which the Fine is not to be arbitrary at the Will of the Lord but is reduced to a certainty in Queen Elizabeth's Reign by Consent and Agreement between the Lord and Tenants and that a Survey was then made by vertue of a Commission directed to some Men of Credit and Worth in those days who were impowred to set forth the quantity of Land and the value thereof which was done accordingly and it was then agreed that a year and an halfs value in case of a Descent and two years value in case of an Alienation should be paid as a Fine to the Lord and the proportion of the value was then computed by the Commissioners and decreed by the Court of Chancery to be binding to the Lords and Tenants for ever The Question now is how this years value shall be computed the Lord would have it according to the improved value the Tenant will pay according as it was rated in Queen Elizabeth's time by those Commissioners Now if this Land had decayed in value the Tenant had still been obliged to pay a Fine according to the valuation of that time and if so it would be very unreasonable to make him pay for his Industry and Improvement of the Land now it is raised in value because that was done by his Labour and at his expence so that the doubt being what Fine shall be paid an Ejectione firmae will not lie because the Matter is doubtful and the Law gives the Tenant Liberty to contest it with the Lord and will never let him be under the peril of a Forfeiture because he will not comply with the Lord to give up his Right without Law But the Lord hath another and a more proper remedy for he may bring an Action of Debt for the Fine thus imposed which will try the Right and is not so penal to the Copyholder which Point was lately resolved And that if a Copyholder had a probable cause to induce him to believe that he ought not to pay the Fine demanded let the Right be as it would yet no Ejectment will lie for it must be only in a plain Case that the Lord can enter for a Forfeiture For no Man forfeits his Estate but by a wilful default in himself such a Forfeiture as is done and presumed to be committed upon his own knowledge but want of understanding cannot be made a wilful neglect 'T is true the Decree in Chancery made here cannot vary the Law but it may be Evidence of the Fact for prima facie it shall be intended that such values have been paid time out of mind because the Court have so decreed but then when the Fine was declared to be certain a doubt did arise how the years value shall be reckoned which has been setled also by another Decree and from that time all the respective Lords of this Mannour have taken Fines according to that value which is mentioned in the Survey and this Lord himself hath taken Fines in pursuance of the same so that 't is clear the Fine cannot be Arbitrary but be it so or not 't is not material to this purpose because the Tenant hath a good and colourable ground to insist upon the Decree and Survey and consequently there is no wilful Forfeiture The Lord Chief Baron agreed That if it be a doubt and the Tenant gives a probable Reason to make it appear that no more is due than what he is ready to pay 't is no Forfeiture but the Law in general presumes that the Fine is incertain if the contrary is not shewed now if the Tenants doubt did arise upon the equitableness of the Fine in such case if he refuse to pay 't is a Forfeiture but here it was whether it shall be paid
as much as is required by Law 'T is true a Subject is bound to serve the King in such capacity as he is in at the time of the Service commanded but he is not obliged to qualifie himself to serve in every capacity Neither doth it appear in this Case that the Defendant was able to remove this Incapacity and that should have been shewn on the other side and all Iudges are to judge upon the Record The intent of the Statute is That if persons will not qualifie themselves they shall not execute any Office and it was made to keep Roman Catholicks out of Places but not to force them to accept of Offices of Trust in the Government and it designs no punishment for quitting but for executing of a place contrary to the Law but if this be an Offence this Information will not lie and for that 2. It was argued That if a thing be either commanded or forbidden by a Statute the transgression in either Case is an Offence punishable by Information 25 H 6. pl. 9. b. 7 H. 4. 5. but when an Act doth not generally command a thing but only sub modo the party offending is punishable no otherwise than designed by that Law as where the Statute of 18 H. 6. cap. 11. prohibits any Man from being a Iustice of the Peace unless he have 40 l. ê‘ AnÌ„ and the Statute of 5 6 E. 6. cap. 16. which makes such Bargains as are therein mentioned about buying of Offices void if such Office be forfeitable then an Information will lie but when 't is ipso facto void as in both the former Cases then 't is otherwise because the punishment is executed by the Statute it self and therefore where the avoidance is made by the Act there is no need of an Information And the Objection of impotentia voluntatis is not material to this purpose because Symony buying of Offices not subscribing the 39 Articles according to the Statute of the Queen these are all voluntary Acts yet no Information lies against such Offenders because the Statutes execute the punishment The intent of the Parliament is here declared the disability of the person makes the Office void void to all intents for the Right of Infants or Men in Prison is not saved so that admitting it to be an Offence if the Duty be not performed yet if such a qualification be requisit to make a Man to act in such an Office or perform such a Duty if that qualification be wanting the Party is only punishable by the loss of the Office The Act doth not distinguish between Offices of Trust and Profit And as to the other Objection viz. That 't is in the power of the Defendant to qualifie himself the same might as well be objected against all the Popish Recusants upon the Statute of 3 Jac. and if a Statute doth disable persons or abridge the King of their Services there is no injury done because the King himself is party to the Act but if mischiefs were never so great since they are introduced by a Law they cannot be avoided till that Law is changed 3. But admitting the Information to be good and that this is an Offence for which it will lie yet the Excommunication is a sufficient excuse it appears by the Verdict that the Defendant was absolutely disabled to be Sheriff for if he is to take the Oath and receive the Sacrament in order to it if he cannot be admitted to the Sacrament as being under the Sentence of Excommunication that is an excuse The Defendant is only argued into a Guilt for the Iury have not found any they do not say that it was in his power to yield Obedience or that he might have enabled himself they only find his incapacity and though it was a voluntary Act which was the cause of his disability yet in such Cases the Law doth not look to Causes so remote If a Man be in Prison for Debt it is his own Act for contracting it and not paying but yet an Outlary against him whilst in Prison shall be reversed because the immediate Cause viz. the Imprisonment and the Iudgment was in invitum and the Law looks no farther and so Iudgment was prayed for the Defendant But the Court were all of Opinion that this Information would lye and that the Defendant was punishable for not removing the disability it being in his power to get himself absolved from the Excommunication And so Iudgment was given against him and a Writ of Error brought c. Godfrey versus Godfrey In Communi Banco Intrat ' Hill ult Rot. 321. DEBT upon a Bond for performance of an Award Award of a lesser Sum in satisfaction of a greater and good in which the Arbitrators had taken notice of 72 l. in controversie and had awarded 50 l. in satisfaction The Defendant pleads Nullum fecerunt Arbitrium the Plaintiff replies an Award and sets it forth and assigns a Breach to which the Defendant demurred because it appeared by the Award that 72 l. was in controversie for Rent due and that 50 l. was awarded in full satisfaction of 72 l. and general Releases to be given but it did not appear that any other Matter was in Controversie between the Parties though the Submission was general and Arbitrators may reduce incertain things to a certainty but they cannot make a Debt certain to be less except there were other differences for which likewise this Release was to be given 10 H. 7. 4. But the whole Court were of Opinion that the Award was good Curia for that the Arbitrators might consider other Matters between the Parties neither did it appear by the Award that the 72 l. was due but in demand only and 't is unreasonable for him to find fault with his own case for he alledges that he ought to pay 72 l. and complains because the other Party is contented with 50 l. and demands no more Iudgment for the Plaintiff Wright versus Bull. Condition where 't is disjunctive 't is in the Election of the Party to have either DEBT upon a Bond for payment of 40 l. The Condition whereof was That if the Defendant should work out the said 40 l. at the usual Prices in packing when the Plaintiff should have occasion for himself or his Friends to imploy him therein or otherwise shall pay the 40 l. then the Bond to be void The Defendant pleads that he was always ready to have wrought out the 40 l. but that the Plaintiff did never imploy him and upon Demurrer the Plea was held ill because the Defendant did not averr that the Plaintiff had any occasion to make use of him and for that it was at his Election either to have Work or Mony Basket and Basket Antea and not having imployed him but brought his Action that is a request in Law and so he hath determined his Election to have the Mony and Iudgment was accordingly given for the
Plaintiff Blackbourn versus Conset Place where it shall be intended tho' not laid in the Pleading IN Replevin the Avowant pleads an Execution taken out and that a Term for years was extended and an Assignment thereof made by the Sheriff but alledges no place where the Assignment was made But upon Demurrer it was held good for it shall be intended to be assigned where the Land doth lie Hall versus Carter Bond to render himself a Prisoner good IN an Action of Debt upon a Bond the Defendant craves Oyer of the Condition which was That if another person who was arrested at the Suit of the Plaintiff and for whom the Defendant was now bound should give such Security as the Plaintiff should approve of for the payment of 90 l. to him Sid. 132. pl. 4. or should render his Body to Prison at the return of the Writ then the Obligation to be void The Defendant pleads the Statute of 23. H. 6. cap. 10. That this Bond was given pro easimento favore And this Case coming to be argued upon a Demurrer the question was whether such Bond be within the Statute or not And the Court were of Opinion that it was not If the Sheriff takes Bond in another Man's name to elude the Statute such Bond is void but the Plaintiff may give directions to the Officer to take such Bond as this to himself 't is only an expedient to prevent a new Arrest and the Agreement of the Plaintiff makes it good If a Capias be taken out against the Defendant and a third person gives the Plaintiff a Bond that the Defendant shall pay the Mony or render himself at the Return of the Writ 't is a good Bond and not within the Statute because 't is not by the direction of the Officer but by the agreement of the Plaintiff and there is no Law that makes the Agreement of the Parties void and if the Bond was not taken by such Agreement it might have been traversed But Iustice Atkyns doubted because a Bond to render himself a Prisoner is void Bewfages's Case 10 Co. But if it had been to pay the Mony or appear at the Return of the Writ it had been good But notwithstanding Iudgment was given for the Plaintiff Shaxton versus Shaxton THE Condition of a Bond was Non damnificatus not a good Plea where the person and Lands are to be indempnified Antea That the Defendant should save harmless Thomas Shaxton and the Mortgaged Premisses and should pay the Interest for the prinicipal Sum. The Defendant pleads that Thomas Shaxton non fuit damnificatus for that the Defendant had paid the 120 l. principal mony with all the arrears of Interest due at such a day And upon a Demurrer this was held no good Plea because the first matter non damnificatus goes to the Person and not to the Premisses And so Iudgment was given for the Plaintiff Anonymus After acquittal for a Common Trespass an Action on the Case will not lie Sid. 465 466. Antea THE Defendant was Indicted for a Common Trespass and Acquitted and now was Plaintiff in an Action on the Case against the Prosecutor And by the Opinion of the Chief Iustice the Action will lie for the Charges and Expences in defending the prosecution which the acquittal proves to be false and the Indicting him proves to be malicious for if he had intended any thing for his own benefit or recompence he might have brought a civil Action and then if he had been found Not Guilty he would have had his Costs allowed Though the prosecution be for a Trespass for which there is a probable cause yet after Acquittal it shall be accounted malicious the Difference only is where the Indictment is for a Criminal matter but where 't is for such a thing for which a Civil Action will lie the Party can have no reason to prosecute an Indictment it is only to put the Defendant to charges and make to him pay Fees to the Clerk of the Assises Penrice and Wynn's Case Habeas Corpus may be granted in Civil matters SErjeant Maynard moved for a Habeas Corpus for them being committed to the Poultry Compter by the Commissioners of Bankrupts for refusing to be examined and sworn touching their Knowledge of the Bankrups Estate The Process against them in this Court was an Attachment of Priviledge which was a Civil Plea and of which the Court had Iurisdiction and therefore the Habeas Corpus must be granted And the Chief Iustice said that it might be without motion because all the Habeas Corpus's in that Court were ad faciendum recipiend and they issue of course Antea but in the Kings-Bench they are ad subjiciendum which are in Criminal Causes and not to be granted without motion Then the Serjeant moved that the Sheriff might Return his Writ which was done and being filed he took Exceptions to the Return by which the ground of the Commitment appeared to be by virtue of a Warrant under the Hands and Seals of the Commissioners c. which he said was ill for want of an Averment of their refusal to come and be sworn for it did not appear that they did refuse and they ought not to be committed without refusing so that should have been positively averred viz. That they did refuse and still do for if they are willing at any time they ought to be discharged and so they were but were ordered to put in Bail upon the Attachment Abbot versus Rugeley THE Plaintiff declared in an Action of Assault and Battery to which the Defendant pleaded non cul Plea puis darrein continuance must be certified as part of the Record of Nisi prius and at the Assises a Plea was put in puis darrein continuance and a Demurrer thereunto The Court were clear of Opinion That if the Plea had been issuable it could not have been then tried neither could the Demurrer be there argued but must be certified up hither by the Iudge of Assise as part of the Record of Nisi prius Yelv. 180. Hawkins versus Moor. Ballard versus Oddey It was ruled in this Case The Contract it self must be Usurious to make it void 1 Sand. 295. Mod. Rep. 69. That to avoid a Security by reason of Vsury the Contract it self must be usurious for if the Party takes afterwards more than is allowed that will not make it so so that if the Agreement of the Parties be honest but made otherwise by the mistake of a Scrivener yet 't is not Vsury As if a Mortgage be for 100 l. with a Proviso to be void on payment of 106 l. at the end of one year and no Covenant for the Mortgagor to take the Profits till default be made in paiment so that in strictness the Mortgagee is intituled both to the Interest and the Profits yet if this was not express'd the Agreement is not Vsury DE Term. Sanctae Trin.
Issue joyned 144 Arrest In the Palace Yard sitting the Court the Officer was committed and the Party discharged upon Common Bail 181 Assignee Of a Devisee is not an Assignee to take where Rent is reserved to a Man and his Assigns 93 Audita Querela Upon the Act of Indempnity and Judgment for the Plaintiff 37 Where it lyeth 49 Assumpsit Where there are mutual Promises and where not 33 34 Where one Promise may be pleaded in discharge of another 44 Promise before a Breach may be discharged by Parol ibid. Assurance Condition to pay Mony upon making such assurance Payment is pleaded but doth not say when assurance made not good 33 Avowry For taking of a Herriot tempore quo being left out and yet good 4 5 Averment Vide Consideration Where it need not be of a sufficiency of a Common in the Plea 276 Avoidance Grant thereof by a Chapter doth not bind the Successor 56 Where there is an Agreement between three for a Presentation by turns a Grant of the next Avoidance by one though the Church be full is good 97 Authority Where to be pursued 79 How it differs from an Interest ibid. Where 't is coupled with an Interest 't is assignable 318 Acts done by one in reputed Authority are favoured by Law 194 Award Pleaded under Hand and not under Seal not good 77 78 An Umpire was chosen after the day in the Submission who made an Award and good 169 170 That all Suits shall cease it amounts to a Release 227 228 One may submit for another and good 228 Of a lesser Sum in satisfaction of a greater good 303 304 A thing awarded not in the Submismission 't is void and the Award good 309 Submission of a particular difference and a general Release awarded if no other Controversie 't is good 309 Of all differences till such a day and a Release awarded to be given of all ten days after if no more Controversies do appear within that time 't is good ibid. B. Bail Vide fol. 28. ARE liable though the Principal is in Execution 312 Action on the Case lieth against the Sheriff for refusing of Bail 31 32 It is not to be allowed in a Scandalum Magnatum 215 Barr. Where the Plaintiff misconceived his Action it shall be no barr to a new one 294 319 Baron and Feme Where they shall joyn in an Action of Assault 66 How she may make a Will with her Husbands assent 170 Where the Agreement of her Husband is good before Marriage 172 How he must shew his disassent after her death ibid. If he once assent he cannot afterwards disagree ibid. What Acts amount to testifie his Consent and what his Disagreement 172 173 Where he shall bring the Action alone upon a Covenant made to both 217 When the Action if not discharged shall survive to her they must both join 269 270 Whether he shall make distribution of the Estate of his Wife dying intestate 20 21 22 He makes a Will and his Wife Executrix she dies before Probate Administration shall be to the next of the Kin of the Husband 101 Bond. Where one may be given in discharge of another 136 137 With an insensible Condition the Bond is good and the Condition void 285 To render himself a Prisoner or pay the Mony in behalf of a third person good 304 305 Breach Where 't is assigned according to the words of the Covenant and good 139 Cannot be assigned upon a Proviso but upon an express Covenant 37 C. Carrier JUstification for that he was robbed the Plea is ill in Substance 270 271 Church Prescription to have an Isle therein no good Cause for a Prohibition 283 Bishop cannot appoint Commissioners to rate a Parish for repair of a Church 8 How a Rate shall be made for the the building thereof 222 Common and Commoner Where a Licence from the Lord is pleaded to a Surcharge you must alledge that there is sufficient Common besides 6 7 May abate Hedges made upon his Commom 65 66 Where it must be for Cattle Levant and Couchant 185 Where he justified by a Plea amounting to the general Issue and held good 274 275 Tenants in Common Need not join in an Action of Waste 61 Must join in the personalty 62 Common Pleas Court Cannot grant a Habeas Corpus in criminal Causes 198 Cannot take Sureties for the good Behaviour ibid. Condition Precedent what words will amount to it 33 34 Paying and performing make not a Condition 34 35 Where the Acceptance of a collateral thing by the Obligee shall be a good performance of the Condition 137 Disjunctive Condition the power of election is in the Obligee 200 303 Where 't is with a Penalty the power of election is in the Obligor 200 All Conditions with a Penalty are made in favour of the Obligor ibid. Where 't is dispensed withal by the Act of God and of the Party 201 Where the Obligee had dispensed with one part of the Condition the other is discharged 202 To make such a Conveyance as the Council of the Obligee shall direct if he refuse the Obligor may procure the Conveyance to be made 203 204 Of a Bond where 't is not performed by the return of a Ship 267 To do a thing to a Stranger where it ought to be performed 309 What words make a Condition and not a Covenant and e contra 35 75 76 Continuando A Trespass longer than he can prove Damages shall be recovered for what he can prove before 253 Consideration In a Grant not repugnant to a former may be averred 250 Conveyance At Common Law there must be an actual Entry to make it good otherwise upon the Statute of Uses 251 Where several things make but one Conveyance 233 Construction Shall not be made to work a wrong 116 Copyhold A Covenant that he shall enjoy it for one year sic de anno in annum amounts to a Lease to make a Forfeiture 81 If he refuse to pay the Fine having probable cause so to do the Lord cannot bring his Ejectment for a Forfeiture 229 Costs Allowed for disturbing the Plaintiff in his Common though it be in the nature of a Trespass 141 142 Covenant Where it lies in the personalty tho' the Grant be executed by the Statute of Uses which makes a distress the proper Remedy 138 139 The words paying and performing make a Covenant and not a Condition 35 91 92 Where a Breach shall be assigned upon it but not on a Proviso 36 37 Where they are mutual and where not 74 75 76 The words povisum agreatum est make a Covenant 77 Where the word Covenant shall amount to an Agreement and where to a Lease 80 It is intended to levy a Fine whether this is a Covenant or not 89 90 What Agreement under Hand and Seal will amount to a Covenant 89 Assignee Covenant lies against him after assignment 139 Covenant to stand seised how it differs from a Feoffment to Uses 208 209