certain or 't is not good 134 4. Must be taken strictly when it goes to the destruction of an Estate 224 5. A Custom that every Copyholder who leases his Land shall forfeit it doth not bind an Infant 229 6. Amongst Merchants where it must be particularly set forth 226 7. It must be certain and therefore where it was laid for an Infant to sell his Land when he can measure an Ell of Cloth 't is void for the incertainty 290 8. To have solam separalem pasturam hath been held good 291 9. Prescription must have a lawful commencement but 't is sufficient for a Custom to be certain and reasonable 292 10. Whether a Custom likewise ought to have a lawful commencement 293 D. Damages See Ejectment 3. Ioint Action 2. Trespass 2. Baron and Feme brought an Action for words spoken of the Wife and concluded ad damnum ipsorum 't is good for if she survive the Damages will go to her 120 Det See Admittance 5. Assignment 1. Iudgment 1. Quantum meruit Where 't is brought upon a Specialty for less than the whole Sum it must be shewed how the other was discharged 41 2. Whether it lies for a Fine upon an admission to a Copyhold Estate for it doth not arise upon any Contract 240 3. There must be a personal Contract or a Contract implyed by Law to maintain an Action of Debt ibid. Deceit See Action on the Case Deputy See Office 6 7 9. Devise See Tail Where it shall not be extended by implication 82 2. Where the word Estate passeth a Fee where not 45 105. 3. I give All to my Mother passeth only an Estate for Life for the Particle All is a Relative without a Substantive 32 4. To A. and the Testator's Name is omitted in the Will yet 't is good by averring his Name and proving his Intention to devise it 217 5. The Testator after several Specifick Legacies and Devises of Lands gave all the rest and remaining part of his Estate c. by those Words the Reversion in Fee passed 228 6. By the Devise of an Hereditament the Reversion in Fee passeth 229 Disseisin See Election 1. Interest 2. The Son Purchased in Fee and was disseised by his Father who made a Feoffment with Warranty the Son is bound for ever 91 2. Lessor made a Lease for Life and died his Son suffered a Common Recovery this is a Disseisin ibid. 3. Where an Estate for Life or years cannot be gained by a Disseisin ibid. 4. A wrongful Entry is never satisfied with any particular Estate nor can gain any thing but a Fee-simple 92 Distribution Before the Statute if there was but one Child he had a right of Administration but it was only personal so that if he died before Administration his Executor could not have it 62 E. Ejectment THE Demise was laid to be the 12th of Junii habendum a praed duodecimo die Junii which must be the 13th day by vertue whereof he entred and that the Defendant Postea eod 12 die Junii did Eject him which must be before the Plaintiff had any Title for his Lease commenced on the 13th day not good 199 2. De uno Messuagio sive Tenemento not good because the word Tenementum is of an incertain signification but with this addition vocat ' the Black Swan 't is good 238 3. If the Term should expire pending the Suit the Plaintiff may proceed for his Damages for though the Action is expired quoad the possession yet it continues for the Damages 249 Election Where the Cause of Action ariseth in two places the Plaintiff may choose to try it where he pleases 165 2. Tenant at Will made a Lease for years the Lessee entreth this is no disseisin but at the Election of him who had the Interest in it 197 Entry In Feoffments Partitions and Exchanges which are Conveyances at the Common Law no Estate is changed until actual Entry 297 2. Lease for years not good without Entry 297 3. Tenant for Life Remainder in Tail Male levied a Fine and made a Feoffment having but one Son then born and afterwards had another Son the eldest died without Issue the Contingent Remainder to the second was not destroy'd by this Feoffment for it was preserved by the right of Entry which his elder Brother had at the time of the Feoffment made 305 Escape Debt upon an Escape would not lie at the Common Law against the Goaler it was given by the Statute of W. 2. 145 2. The superior Officer is liable to the voluntary Escapes suffered by his Deputy unless the Deputation is for life 146 3. If an Escape is by negligence it must be particularly found 151 4. A person was in Execution upon an erroneous Judgment and escaped and Judgment and Execution was had against the Gaoler and then the first Judgment was reversed yet that against the Gaoler shall stand 325 Evidence See Witness An Affidavit made in Chancery shall not be read as Evidence but only as a Letter unless Oath is made by a Witness that he was present when it was taken before the Master 36 2. What shall be Evidence of a fraudulent Settlement ibid. 3. An Answer of a Guardian in Chancery shall not be read as Evidence to conclude an Infant 259 4. Whether the return of the Commissioners in a Chancery Cause that the person made Oath before them is sufficient Evidence to convict of Perjury 116 5. Whether a true Copy of an Affidavit made before the Chief Justice is sufficient to convict the person for the like Offence 117 6. A Verdict may be given in Evidence between the same Parties but not where there are different persons unless they are all united in the same interest 142 7. Conviction for having two Wives shall not be given in Evidence to prove the unlawfulness of a Marriage but the Writ must go to the Bishop because at Law one Jury may find it no Marriage and another otherwise 164 Exchange Ought to be executed by each Party in their Life time otherwise 't is void 135 Excommunication Stat. 5 Eliz. For not coming to the Parish Church the Penalties shall not incurr if the person hears Divine Service in any other Church 42 2. The Causes are enumerated in the Statute which must be contained in the Significavit otherwise the Penalties are not to incurr 89 Executor See Grants Notice 5. Whether an Executor de son tort can have any interest in a Term for years 91 93 2. An Executor may sell the Goods before Probate 92 3. May pay Debt upon a simple Contract before a Bond of which he had no notice 115 4. Whether an Action of Debt will lie against an Executor upon a Mutuatus 5. By what words he hath an Authority only without an Interest in the thing devised 209 210 6. He had both Goods of his Testator and of his own and granted omnia bona sua that which he hath as Executor will not pass for
Trust as in the Case of Wardship formerly which always went to the Executor of the Grantee and which was of greater consideration in the Law than the feeding or clothing of an Ideot and of that Opinion was the Court that the King had a good Title to dispose of both the Ward and the Ideot one till he was of Age and the other during his Ideocy Iudgment for the Defendant DE Term. Sanctae Trin. Anno 36 Car. II. in Banco Regis 1684. Reeves versus Winnington THE Testator was a Citizen and a Freeman of London A Devise of all his Estate passed a Fee and being seised in Fee of a Mesuage c. and likewise possessed of a considerable personal Estate made his Will in which there was this Clause viz. I hear that John Reeves is enquiring after my Death but I am resolved to give him nothing but what his Father hath given him by Will I give all my Estate to my Wife c. The Question was Whether by these words the Devisee had an Estate for Life or in Fee in the Mesuage It was argued that she had only an Estate for life because the Words All my Estate cannot be construed to pass a Fee for it doth not appear what Estate was intended and Words in a Will which go to disinherit an Heir must be plain and apparent A Devise was in these Words viz. Sid. 191. Bowman versus Milbank I give all to my Mother all to my Mother and it was adjudged that a Fee did not pass which is as strong a Case as this for by the word All it must be intended All that was in his power to give which is as comprehensive as if he had said All my Estate 'T is true Kerman and Johnson Stiles 281. 1 Rol. Abr. 834. Cro. Car. 447. it hath been adjudged that where a Man devised his whole Estate to his Wife paying his Debts and Legacies that the word Estate there passed a Fee because it was for the benefit of the Creditors there being not personal Assets sufficient to pay all the Debts But that is not found in this Case therefore the Word Estate being doubtful and which will admit of a double construction shall not be intended to pass a Fee Mr. E contra Pollexfen contra The first part of this Sentence consists in negative words and those which are subsequent explain the intention of the Testator viz. That John Reeves should take nothing by the Will The Word Estate doth comprehend the whole in which the Owner hath either an Interest or Property like a Release of all Actions which is a good discharge as well of real as personal Actions In common understanding it carries an interest in the Land and then 't is the same as if he had devised all his Fee-simple Estate In the Case of Bowman and Milbank it was adjudged that a Fee-simple did not pass by the Particle All because it was a Relative Word and had no Substantive joined with it and therefore it might have been intended All his Cattle All his Goods or All his personal Estate for which incertainty it was held void yet Iustice Twisden in that Case said that it was adjudged that if a Man promise to give half his Estate to his Daughter in Marriage that the Lands as well as the Goods are included The Testator devised all his Tenant-right Estate held of such a Manor 3 Keb. 245. Mod. Rep. 100. and this being found specially the Question was Whether any more passed than an Estate for Life because he did not mention what Estate he intended but it was held that the Devisee had a Fee-simple because the Words were as comprehensive as if he had devised all his Inheritance and by these Words a Fee-simple would pass Curia It plainly appears that the Testator intended nothing for John Reeves therefore he can take nothing by this Will and that the Devisee hath an Estate in Fee-simple for the Words All my Estate are sufficient to pass the same Rex versus Sir Thomas Armstrong Saturday June 14th THE Defendant was outlawed for High-Treason and being taken at Leyden in Holland was brought into England and being now at the Bar he desired that he might have leave of the Court to reverse the Outlawry and he tried by virtue of the Stature of Ed. 6. which Enacts 5 6 E. 6. cap. 11. That if the Party within one year after the Outlawry or Judgment thereupon shall yield himself to the Chief Justice of England and offer to traverse the Indictment upon which he was outlawed he shall be admitted to such Traverse and being acquitted shall be discharged of the Outlawry He alledged that it was not a year since he was outlawed and therefore desired the benefit of this Law But it was denied because he had not rendered himself according to the Statute but was apprehended and brought before the Chief Iustice Whereupon a Rule was made for his Execution at Tyburn which was done accordingly DE Term. Sancti Mich. Anno 36 Car. II. in Banco Regis 1684. Hebblethwaite versus Palmes Mich. 36 Car. II. in B. R. Rot. 448. AN Action on the Case was brought in the Common-Pleas Possession is a sufficient cause to maintain an Action against a wrong doer for diverting of a Watercourse The Declaration was That the Defendant Primo Augusti c. injuste malitiose did break down an ancient Damm upon the River Darwent by which he did divert magnam partem aquae ab antiquo solitu cursu erga molendinum ipsius quer c. ad dampnum c. The Defendant pleaded that before the said Breach made he was seised in Fee of an ancient Mill and of six Acres of Land adjoyning upon which the said Damm was erected time out of mind to turn the Water to his said Mill which Damm was always repaired and maintained by the Defendant and the Tenants of the said Land that his Mill was casually burnt and he not intending to Re-build it suffered the Damm to be broken down and converted the Timber to his own use being upon his own Soil prout ei bene licuit c. The Plaintiff replied that by the breaking of the Damm the Water was diverted from his Mill c. The Defendant rejoyned and justified his Plea and Traversed that the Mill of the Plaintiff was an ancient Mill. And upon a Demurrer to this Rejoynder Iudgment was given for the Plaintiff and a Writ of Error now brought to reverse that Iudgment and for the Defendant in the Action it was argued 1. That the Declaration is not good because the Plaintiff had not set forth that his Mill was an ancient Mill. 2. Because he had not entituled himself to the Watercourse 3. That the Plea was good in Bar to this Action because the Defendant had sufficiently justified having a Right to the Land upon which the Damm was erected and always repaired it As to the first Point it
quam ad illud facere debet solet And it was the Opinion of a * Justice Doderidge in Surry and Piggots Case Pop. 171.27 Assise placito 8. Br. Prescription 49. Rast Entr. 441 Tit. Nusance learned Iudge that the words currere consuevit solebat did supply a Prescription or Custom Thus it was in an Assise of Nusance wherein the Plaintiff set forth that he had a Fountain of Water currentem usque ad rotam molendini c. and that the Defendant divertit cursum aquae and this was held good The Cases of stopping up of Lights and diverting of Water-courses are not parallel the Prescription to Lights must be ratione loci and therefore if a Man will erect a new House and a Stranger will stop the Lights 't is an injury done and the Action may be maintained upon the Possession Lutterel 's Case was grounded upon the Possession for upon the Plaintiff Cottell 's own shewing the Prescription was gone because he set forth that he had pulled down the old Mills and that the Defendant Lutterel diverted the Water from running to those Mills which the Plaintiff newly built All which prove that a Prescription goes to the Right but a possession is sufficient to support an Action against a Tort-fesor Lastly Slackman vers West Palmer 387. 2 Cro. 673. in the Case of a Common or a Rent which cannot pass without Deed if the Plaintiff shews a Que Estate he must produce the Deed by which it was granted but where he prescribes for a Way he may set forth his Estate without shewing how he came by it because 't is but a Conveyance to the Action which is grounded upon the disturbance done to the Possession Cur. The word solet implies Antiquity and will amount to a Prescription and solitus cursus aquae running to a Mill makes the Mill to be antient for if it be newly erected there cannot be solitus cursus aquae towards that Mill For which Reasons the Iudgment in the Original Action was affirmed in Hillary Term Primo Willielmi But the Chief Iustice was of Opinion that if the Cause had been tried upon such a Oeclaration that the Plaintiff ought to prove his Prescription or else he must be Nonsuit Anonymus ONE was Indicted for drinking of an Health to the Pious Memory of Stephen Colledge who was Executed at Oxford for High Treason He was Fined 1000 l. and had Sentence to stand in the Pillory and was ordered to find Sureties for his good Behaviour Rex versus Rosewel THE Defendant was a Non-conformist Minister and Indicted for High-Treason in Preaching of these words viz. Why do the People innuendo the People of England make a flocking to the King innuendo Carolum Secundum under pretence of curing the Kings Evil which the King cannot do but we are the Priests and Prophets to whom they ought to flock who by our Prayers can heal them We have had two Wicked Kings now together innuendo Carolum Primum Carolum Secundum who have suffered Popery to be introduced under their Noses whom I can liken to none but wicked Jeroboam and if they innuendo the People c. would stand to their Principles I make no doubt but to COnquer our Enemies innuendo the King and all his Loyal Subjects with Rams Horns broken Pitchers and a Stone in a Sling as in the time of old Vpon this Indictment he was arraigned and pleaded Not Guilty and was Tried at Bar and found Guilty of High Treason upon the Evidence of two Women And the Court having assigned Mr. Wallop Mr. Pollexfen and Mr. Bampfield to be his Council they moved in Arrest of Iudgment First That the Words discharged of the Innuendo's if taken seperate or altogether have no tendency to Treason The first Paragraph doth not import any Crime and to say that we have had two wicked Kings may be a Misdemeanor but 't is not Treason either by intendment of the Death of the King or by levying War against him The Crime seems to consist in the next Words which are if they would stand to their Principles c. This seems to stir up the People to Rebellion but as they are placed in the Indictment they will not admit of such a Construction neither as they have reference to the words precedent or as they stand by themselves The words which go before are viz. We have had two wicked Kings together 'T is not expressed what Kings or when they Reigned which is very uncertain Et si ipsi ad fundamentalia sua starent which word ipsi is relative and must refer ad proximum antecedens and then it must be ipsi Reges which is the proper and natural sense of the words But now if the Innuendo's must be incerted 4 Co. 17. it must be under some Authority of Law either to design the person or the thing which was not certain before that the intention of the Party speaking may be more easily collected and this is the most proper Office of an Innuendo It will not change the meaning of the words Hob. 45. 2 Cro. 126. for that is to make them still more incertain Now most of the Innuendo's in this Indictment are naught because they do not ascertain the subject matter First by the word People innuendo the People of England may be as well intended any other People because there was no previous Discourse of the People of England Then follow these words We have had two wicked Kings now together innuendo King Charles the First and Second which may be as well intended of King Ethelred and Alfred because the words denote a time past and therefore cannot possibly intend the King of whom there was no precedent Discourse And the Rule is De dubiis generalibus benignior Sententia recipienda est Besides those words are insensible and indeed impossible for we cannot have two wicked Kings together it ought to be successively Then to say we shall Conquer our Enemies cannot be intended the Enemies of the King because the word Enemies is of a large sense for Man by reason of his Sins and Infirmities hath many Enemies and possibly such might be intended If therefore it be doubtful what Enemies were meant if it shall not be in the power of a Clerk by an innuendo to make Words of another sense than what they will naturally bear nor to help where they are insensible as in this Case If there was no precedent Discourse either of Kings People or Enemies which must be proved by the Evidence then is this Indictment naught and therefore Iudgment ought to be arrested Mr. Attorney and Solliciter contra 'T is laid in this Indictment that the words were spoken to stir up Rebellion and to depose the King and 't is so found by the Verdict of twelve Men. That which aggravates the offence is That it was spoken in a publick Assembly to the People which must be intended the People of England
that is to make them Iudges whether this Duty is payable or not and so the Courts of Westminster who are the proper Iudges of the Revenue of the King who by this means will be without an Appeal will be excluded Curia This Court may take Cognizance of this Matter as well as in Cases of Bastardy 't is frequent to remove those Orders into this Court though the Act says That the two next Justices may take order as well for the punishment of the Mother as also for the relief of the Parish where it was born except he give Security to appear the next Quarter Sessions The Statute doth not mention any Certiorari which shews that the intention of the Law-makers was that a Certiorari might he brought otherwise they would have enacted as they have done by several other Statutes that no Certiorari shall lie Therefore the meaning of the Act must be that the determination of the Iustices of the Peace shall be final in Matters of Fact only as if a Collector should affirm that a person hath four Chimnies when he hath but two or when the Goods distrained are sold under the value and the Overplus not returned but the Right of the Duty arising by virtue of this Act was never intended to be determined by them Then the Order was filed and Mr. Pollexfen moved that it might be quashed for that by the Statute of 14 Car. 2. 14 Car. 2. c. 10. the Occupier was only chargeable and the Land-Lord exempted Now by the Proviso in that Act such a Cottage as is expressed in this Order is likewise exempted because 't is not of greater value than 20 s. by the year and 't is not expressed that the person inhabiting the same hath any Lands of his own of the value of 20 s. per annum nor any Lands or Goods to the value of 10 l. Now there having been several abuses made of this Law to deceive the King of this Duty occasioned the making of this subsequent Act. The abuses were these viz. The taking a great House and dividing it into several Tenements and then letting them to Tenants who by reason of their poverty might pretend to be exempted from this Duty The dividing Lands from Houses so that the King was by these Practices deceived and therefore in such Cases the charge was laid upon the Land-Lord but nothing of this appearing upon the Order it was therefore quashed Brett versus Whitchot IN Replevin Lands not exempted from repairing of the High-ways by grant of the King The Defendant avowed the taking of a Cup as a Fine for a Distress towards the repairing of the High-way The Plaintiff replyed and set forth a Grant from the King by which the Lands which were chargeable to send Men for the repairing c. were exempted from that Duty And upon a Demurrer the Question was Whether the Kings Letters Patents are sufficient to exempt Lands from the Charge of the repairing of the High-ways 2 3 Ph. Mar. c. 8. which by the Statute of Philip and Mary and other subsequent Statutes are chargeable to send Men for that purpose And it was argued that such Letters Patents were not sufficient because they were granted in this Case before the making of the Statute and so by consequence before any cause of Action and to prove this a Case was cited to this purpose In 2 E. 2 Inst 569. 3. an Action was brought against an Hundred for a Robbery upon the Statute of 13 E. 1. The Bishop of Litchfield pleaded a Charter of R. 1. by which that Hundred which was held in Right of his Church was exempted c. But it was held that this Charter could not discharge the Action because no such Action was given when the Letters Patents were made but long afterwards Iudgment was given for the Avowant Upton versus Dawkin TRespass quare vi armis liberam piscariam he did break and enter and one hundred Trouts ipsius Quer. Trespass for taking Fish ipsius querentis in libera piscaria not good in the Fishery aforesaid did take and carry away Vpon Not guilty pleaded there was a Verdict for the Plaintiff and this Exception was taken in arrest of Iudgment viz. For that the Plaintiff declared in Trespass for taking so many Fish ipsius Quer. in libera piscaria which cannot be because he hath not such a property in libera piscaria to call the Fish his own Pollexfen contra If there had not been a Verdict such a Construction might have been made of this Declaration upon a Demurrer but now 't is helped and the rather because a Man may call them pisces ipsius in a free Fishery for they may be in a Trunk so a Man may have a property though not in himself as in the Case of Iointenants where 't is not in one but in both yet if one declare against the other unless he plead the Iointenancy in Abatement the Plaintiff shall recover But notwithstanding the Iudgment was reversed Dominus Rex versus ...... THE Defendant was indicted for Barretry Barretry the Evidence against him was that one G. was arrested at the Suit of C. in an Action of 4000 l. and was brought before a Iudge to give Bail to the Action and that the Defendant who was a Barrister at Law was then present and did sollicite this Suit when in truth at the same time C. was indebted to G. in 200 l. and that he did not owe the said C. one farthing The Chief Iustice was first of Opinion that this might be Maintenance but that it was not Barretry unless it appeared that the Defendant did know that C. had no cause of Action after it was brought If a Man should be arrested for a trifling Cause or for no Cause this is no Barretry though 't is a sign of a very ill Christian it being against the express Word of God But a Man may arrest another thinking he hath a just cause so to do when as in truth he hath none for he may be mistaken especially where there hath been great dealings between the Parties But if the design was not to recover his own Right but only to ruine and oppress his Neighbour that is Barretry A Man may lay out mony in behalf of another in Suits at Law to recover a just Right and this may be done in respect of the Poverty of the Party but if he lend mony to promote and stirr up Suits then he is a Barretor Now it appearing upon the Evidence that the Defendant did entertain C. in his House and brought several Actions in his Name where nothing was due that he was therefore guilty of that Crime But if an Action be first brought and then profecuted by another he is no Barretor though there is no cause of Action The Defendant was found guilty DE Termino Paschae Anno 2 Jac. II. in Banco Regis 1686. Coram Edwardo Herbert Mil ' Capital ' Justic
' Francisco Wythens Mil ' Justiciariis Richardo Holloway Mil ' Justiciariis Thoma Walcot Mil ' Justiciariis MEmorandum That the First day of this Term Sir Thomas Jones Chief Justice of the Common-Pleas had his Quietus and Sir Henry Beddingfield one of the Justices of the same Court succeeded him in that Office Likewise the Honourable William Mountagu Esq Lord Chief Baron of the Exchequer had his Quietus and Sir Edward Atkyns one of the Barons of the same Court succeeded him Sir Job Charleton one of the Justices of the Common-Pleas had his Quietus but was made Chief Justice of Chester and Sir Edward Lutwich the King's Serjeant was made one of the Justices of the Common-Pleas and Serjeant Heath was made one of the Barons of the Exchequer Okel versus Hodgkinson THE Father and Son join in a Fine in order to make a Settlement upon the second Wife of the Father who was only Tenant by the Curtesie the Remainder in Tail to his said Son One of the Cognizors died after the Caption and before the Return of the Writ of Covenant and now a Writ of Error was brought to Reverse it and this was assigned for Error Curia If it had been in the Case of a Purchasor for a valuable Consideration the Court would have shewed him some favour but it being to do a wrong to a young Man they would leave it open to the Law THE first day of this Term being the 22th day of April there was a Call of Serjeants viz. Sir John Holt of Grays-Inn Recorder of London who was made Kings Serjeant Sir Ambrose Phillips made also Kings Serjeant Christopher Milton John Powell John Tate William Rawlinson George Hutchins William Killingworth Hugh Hodges and Thomas Geers They all appeared that day at the Chancery-Bar where having taken the Oaths the Lord Chancellor Jefferies made a short Speech to them after which they delivered a Ring to him praying him to deliver it to the King They went from the Inner-Temple-Hall to Westminster and Counted at the Common-Pleas and gave Rings the Motto whereof was DEUS REX LEX Dominus Rex versus Saloway SAloway drowned himself in a Pond and the Coroners Enquest found him Non Compos Mentis because 't is more generally supposed that a Man in his Senses will not be Felo de se The Kings Councel moved for a Melius Inquirendum and that the Inquisition might be quashed for that it sets forth Quod pred Defend circa horam octavam ante meridiem in quoddam stagnum se projecit per abundantiam aquae ibidem statim suffocat emergit ' erat which is insensible Pemberton Serjeant contra Here is no Exception taken to the substance of the Inquisition and the word suffocat had been sufficient if the word emergit ' had been left out The Court were of Opinion that there being another word in this Inquisition which carries the sense 't is therefore sufficient but if it had stood singly upon this word Emergit ' it had not been good And this Fact happening about the time of the general Pardon the Court was of Opinion that where an Interest is vested in the King a Pardon of all Forfeitures will not divest it but that nothing was vested here before Inquisition found 2. It was objected that this Inquisition ought to set forth that Saloway came by his death by this means Et nullo alio modo quocunque To which it was answered by Pemberton that in matters of Form only the Iudges have sent for the Coroner into Court and ordered him to amend it Rodney versus Strode AN Action on the Case was brought against three Defendants one of them suffered Iudgment to go by default In a joynt Action the Jury may sever the Damages and the other two pleaded Not Guilty The Cause was tryed the last Assises at Exeter and it was for imposing the Crime of Treason upon the Plaintiff and for assaulting and imprisoning of him there was a Verdict for the Plaintiff and 1000 l. damages against Mr. Strode and 50 l. against the other Defendant who pleaded The Plaintiff entred a nolle prosequi against him who let the Iudgment go by default and against the other Defendant for the 50 l. damages and took judgment only against Mr. Strode Serjeant Pemberton moved for a new Trial by reason of the excessive Damages which were not proportioned to the quality of the Plaintiff he being a Man of mean Fortune But it was opposed by the Plaintiff for that the Defendant pursued him as a Traytor and when he was apprehended for that Crime he caused him to be arrested for 1000 l. at the Suit of another person to whom he was not indebted so that upon consideration of the Circumstances of the Case the Court refused to grant a new Tryal Then Serjeant Pemberton for the Defendants moved in arrest of Iudgment and for cause shewed that the Iury have found both guilty and assessed several Damages which they cannot do because this is a joynt Action to which the Defendants have pleaded jointly and being found guilty modo forma the Iury cannot assess the damages severally for the damage is the same by the one as the other Cro. Eliz. 860. Austen vers Millard al' and therefore it hath been adjudged that where an Action of Battery was brought against three and one pleaded not guilty and the other two Son Assault demesne and several damages found against them it was held ill for that very reason because it was a joint offence 'T is true where there are divers Defendants and damages assessed severally the Plaintiff hath his election to take execution de melioribus damnis but this is when the Trials are at several times So 't is where they plead several Pleas Cro. Car. 239. Walsh versus Bishop as in an Action of Battery one pleads not guiity and the other justifies and both Issues are found for the Plaintiff in such case he may enter a non pros against one and take Iudgment against the other because their Pleas are several but where they plead jointly the Iury cannot sever the Damages But Mr. 1 Bulst 157. Sampson vers Cramfield al' Rast Entr. 677. b. Pollexfen for the Plaintiff insisted that even in this case damages may be assessed severally for where two Defendants are sued for the same Battery and they plead the same Plea yet damages may be assessed severally So was Trebarefoot and Greenway 's Case in this Court which was an Action for an Assault and Battery and false Imprisonment one of the Defendants pleaded not Guilty and the other justified Issue was joined and there was a Verdict for the Plaintiff and damages assessed severally the Plaintiff entred a nolle prosequi as to one and took judgment against the other and upon this a Writ of Error was brought in this Court and the Iudgment was affirmed So if an Action of Trespass be brought against two for taking of 100 l.
the one took 70 l. and the other 30 l. damages shall be assessed severally It was admitted that regularly the damages ought to be entire especially where the Action is joint but where the Facts are several damages may likewise be so assessed but in this Case the Iury hath done what the Court would do had it béen in a Criminal Cause Curia This is all but one Fact which the Iury is to try 'T is true when several Persons are found Guilty criminally then the damages may be severed in proportion to their Guilt but here all are equally guilty of the same offence and it seems to be a contradiction to say that the Plaintiff is injured by one to the value of 50 l. and by the other to the value of 1000 l. when both are equally Guilty Every Defendant ought to answer full as much as the Plaintiff is damnified now how is it possible he should be damnified so much by one and so little by the other But notwithstanding this Opinion Iudgment was afterwards given for the Plaintiff Peak versus Meker IN an Action on the Case for Words the Plaintiff declared that he was a Merchant and bred up in the Church of England and that when the present King came to the Crown the said Plaintiff made a Bonfire at his Door in the City of London and that the Defendant then spoke of him these words for which he now brought this Action viz. He innuendo the Plaintiff is a Rogue a Papist Dog and a pitiful Fellow and never a Rogue in Town has a Bonfire before his Door but he The Plaintiff had a Verdict and 500 l. Damages were given A Writ of Error was brought but it was adjudged without argument that the words were actionable Joyner versus Pritchard AN Action was brought upon the Statute of R. II. Admiralty for prosecuting of a Cause in the Admiralty Court which did arise upon the Land it was tried before the Chief Iustice in London and a Verdict for the Plaintiff Mr. Thompson moved in Arrest of Iudgment for that the Action was brought by Original in which it was set forth that the Defendant prosecut fuit adhuc prosequitur c. in Curia Admiralitat now the prosequitur is subsequent to the Original and so they have recovered Damages for that which was done after the Action brought Curia These words adhuc prosequitur must refer to the time of suing forth this Original like the Case of a Covenant for quiet Enjoyment and a breach assigned that the Defendant built a Shed whereby he hindred the Plaintiff that he could not enjoy it hucnsque which word must refer to the time of the Action brought and not afterwards Iudgment was given for the Plaintiff Dominus Rex versus ........ AN Information was brought against the Defendant for Forgery Forgery setting forth that the Defendant being a man of ill fame c. and contriving to cheat one A. did forge quoddam scriptum dated the 16th day of October in the year 1681. continens in se scriptum obligatorium per quod quidem scriptum obligatorium praed A. obligatus fuit praed Defend in quadraginta libris c. He was found Guilty and afterwards this Exception was taken in arrest of Iudgment Viz. That the Fact alledged in the Information was a contradiction of it self for how could A. be bound when the Bond was forged 2. It is not set forth what that scriptum obligatorium was whether it was scriptum sigillatum or not Curia The Defendant is found Guilty of the forging of a Writing in which was contained quoddam scriptum obligatorium and that may be a true Bond. Iudgment was arrested MEMORANDUM On Tuesday April the 27th Sir Thomas Powes of Lincolns-Inn was made Sollicitor General in the Place of Mr. Finch and was called within the Bar. Hanchet versus Thelwal IN Ejectment a special Verdict was found Devise What words in a Will make an Estate for Life and what in Tail in which the Case did arise upon the construction of the words in a Will Viz. The Testator being seised in Fee had Issue Two Sons and Four Daughters He made his Will and devised his Estate being in Houses by these words Viz. Irem I give and bequeath to my Son Nicholas Price my Houses in Westminster and if itplease God to take away my Son then I give my Estate to my four Daughters naming them share and share alike and if it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving And if all my Sons and Daughters dye without Issue then I give my said Houses to my Sister Anne Warner and her Heirs Nicholas Price entred and died without Issue then the four Sisters entred and Margaret the eldest married Thellwel and died leaving Issue a Son who was the Lessor of the Plaintiff who insisted upon his Title to a fourth part of the Houses The Question was what Estate the Daughters took by this Will whether joint Estates for Life or several Remainders in Tail If only joint Estates for Life then the Plaintiff as Heir to his Mother will not be entituled to a fourth part if several Remainders in Tail then the Father will have it during his Life as Tenant by the Curtesie This Case was argued this Term by Mr. Pollexfen for the Plaintiff And in Hillary Term following by Councel for the Defendant The Plaintiffs Council insisted that they took joint Estates for Life and this seemed to be the intent of the Testator by the words in his Will the first Clause whereof was Viz. I give and bequeath my Houses in W. to Nicholas Price Now by these words an Estate for Life only passed to him and not an Inheritance for there was nothing to be done or any thing to be paid out of it 2. The next Clause is Viz. If it please God to take away my Son then I give my Estate to my four Daughters share and share alike Now these words cannot give the Daughters a Fee-simple by any intendment whatsoever but if any word in this Clause seems to admit of such a Construction it must be the word Estate which sometimes signifies the Land it self and sometimes the Estate in the Land But here the word Estate cannot create a Fee-simple because the Testator gave his Daughters that Estate which he had given to his Son before and that was only for Lise Then follow the words share and share alike and that only makes them Tenants in Common 3. The next Clause is Viz. If it please God to take away any of my said Daughters before Marriage then I give her or their part to the rest surviving These words as they are penned can have no influence upon the Case 4. Then followeth the last Clause Viz. And if all my Sons and Daughters dye without Issue then I give c. These words create no Estate tail in the
the Common Law for a false Oath made by any Witness and therefore an Action will not lye for a scandalous Affidavit Adjornatur Anonymus NOta An Action of Assault and Battery Release of one Def. shall not discharge the rest of a personal thing and false imprisonment was brought against four Defendants the Plaintiff had Iudgment and they brought a Writ of Error The Plaintiff in the Action pleaded the Release of one of them and to this Plea all four jointly demur The Opinion of the Court was that Iudgment might be given severally for they being compelled by Law to join in a Writ of Error the release of one shall not discharge the rest of a personal thing But where divers are to recover in the personalty 6 Co. Ruddock's Case the Release of one is a Bar to all but it is not so in point of discharge If two Coparceners make a Lease of a House and the Rent is in arrear and one of them brings the Action and recovers the Iudgment shall be arrested because one alone hath recovered in Debt for a moiety when both ought to join But it is agreed that if one Tenant in Common make a Lease rendring Rent which afterwards is in arrear Litt. Sect. 316. they must join in an Action of Debt because it savours of the Personalty But 't is otherwise in case of the Realty DE Term. Sanct. Trin. Anno 2 Jac. II. in Banco Regis 1686. Herbert Chief Justice Wythens Justices Holloway Justices Wright Justices Sawyer Attorny General Powis Sollicitor General Aldridge versus Duke ASsault Trespass continued many years and the Statute of Limitations pleaded the Jury gives Damages only for the last six years Battery Wounding and Imprisoning of him from the 10th of August 24 Car. 2. usque exhibitionem Billae The Defendant pleaded not Guilty infra sex infra Annos The Plaintiff replied that the Writ was sued out 2 Octobris 1 Jacobi 2. And that the Defendant was Guilty within six years next before the Writ brought Vpon this Issue was joyned and a Verdict was given for the Plaintiff and entire damages given Mr. Pollexfen moved two Exceptions in Arrest of Iudgment 1. That a Verdict cannot help what appears to be otherwise upon the face of the Record Now here the Plaintiff declared that he was imprisoned the 10th of August 24 Car. 2. which is 13 years since and being one entire Trespass the Issue is found as laid in the Declaration which cannot be for so many years between the cause of Action and bringing of the Writ for if a Trespass be continued several years the Plaintiff must sue only for the last six years for which he hath a compleat cause of Action but when those are expired he is barred by the Statute When the Plaintiff hath any cause of Action Sid. 25. then the Statute of Limitations begins as in an Action on the Case for words if they are actionable in themselves without alledging special damages the Plaintiff will recover Damages from the time of the speaking and not according to what loss may follow So in Trover and Conversion when there is a cause of Action vested and the Goods continue in the same possession for seven years afterwards in such case 't is the first conversion which entitles the Plaintiff to an Action So in the Case at Bar tho' this be a continued imprisonment yet so much as was before the Writ brought is barred by the Statute Thompson contra The Verdict is good for the Iury reject the beginning of the trespass and give Damages only for that which falls within the six years and this may be done because 't is laid usque exhibitionem Billae If the Defendant had pleaded not Guilty generally Cro. Car. 160 381 404. then Damages must be for the 13 years though the Plaintiff of his own shewing had brought his Action for a thing done beyond the time limited by the Statute but having pleaded not Guilty at any time within six years if the Verdict find him guilty within that time 't is against him As to the Objection that the Cause of Action ariseth beyond six years tho' it doth appear so in the Declaration yet that doth not exclude the Plaintiff for there might have been Process out before or he might be disabled by an Outlawry which may be now reversed or he might be in Prison and newly discharged from which time he hath six years to begin his Action for being under either of these circumstances the Statute doth not hurt him Curia If an Action of false Imprisonment be brought for seven years and the Jury find the Defendant guilty but for two days 't is a Trespass within the Declaration This Statute relates to a distinct and not to a continued Act for after six years it will be difficult to prove a Trespass many accidents may happen within that time as the death or removal of Witnesses c. Iudgment was given for the Plaintiff Dobson versus Thornistone THE Plaintiff was a Husbandman Words spoken of a Farmer actionable who brought an Action against the Defendant for these words He owes more mony than he is worth he is run away and is broke He had a Verdict and it was moved now in Arrest of Iudgment that the Words being spoken of a Farmer are not actionable To say that a Gentleman is a Cozener Hill 28 Eliz. B.R. Godb. 40. a Bankrupt and hath got an Occupation to deceive Men though he used to Buy and Sell yet being no Merchant 't was the better Opinion of the Court that the Words were not actionable So to say of a Farmer Stiles 420. that he is a Whoreson Bankrupt Rogue and it not appearing that he got his living by Buying and Selling or that the Words were spoken of him relating to his Occupation 't is not actionable For it must not only appear that the Plaintiff hath a Trade Sid. 299. Hutt 50. but that he gets his Living by it otherwise the Words spoken of him will not bear an Action But the Court held the Words to be actionable the like Iudgment was given in the Case of a Carpenter Mich. 3 Jac. for Words Viz. He is broke and run away Anonymus NOta Misentry of a Writ of Enquiry amendable without paying Costs Iudgment was given upon a Demurrer and a Writ of Enquiry was awarded and in the Entry thereof upon the Roll the Words per Sacramenum duodecim proborum legalium hominum were left out and now the Question was Whether it shall be amended It was said that a Capiatur for a Misericordia shall be amended upon the new Statute of Jeofails after a Verdict but whether upon a Demurrer it was doubted In a Quo Warranto Iudgment was entred by disclaimer Cro. Car. 184. by the consent of all Parties and the Words virtute praetextu literarum patentium geren dat 17 Jacobi were wrote in the Margin of the
day afterwards viz. the 10th day of August a Trust of the said Office was declared by another Deed viz. to himself for Life with Remainders over and that by virtue thereof and the consent of the Trustees he took upon him the execution of the said Office and was thereof possessed either by himself or his Deputy until the time of the Inquisition taken then he traversed that the Escapes were voluntary but did not answer the concealing of the Grant and concludes viz. per quod petit that the King Hands may be amoved c. The Attorny General demurred to the Plea of the Trustees he likewise demurred to the Plea of Mr. Lenthal and took issue that the Escapes were voluntary It was argued this Term and Trinity following by Council on both sides and as to the matter of Law they made these Points 1. That this Office cannot be granted in Trust 2. The Escapes found in the Inquisition and not answered by the Trustees are sufficient causes of Forfeiture of this Offce 3. Another Point was raised whether the assignment of this Office to Trustees admitting it could be so granted and their declaration of the Trust did create an Estate at will in Mr. Lenthal If it was a Tenancy at will 1. Then whether Mr. Lenthal had done any thing to determine his will 2. Whether he can by Law make a Deputy 3. Whether the assigning of this Trust without giving notice thereof to this Court be a Forfeiture 1. This Office cannot be granted in Trust Jones 128. because 't is a personal Inheritance and will not pass by such Conveyances as are used to convey Lands so is my Lord of Oxford 's Case in which it was held that a Covenant to stand seised of an Office is void neither can Mr. Lenthal take upon him the execution of this Office by the consent of the Trustees for that cannot be without Deed. If the Law should be otherwise this inconvenience would follow viz. Mr. Lenthal might grant the Office to another without leave of the Court and the Grantee might suffer voluntary Escapes having no valuable Interest to answer the parties injured who must then sue Mr. Lenthal and he hath no Estate in him for he hath conveyed the Inheritance to the Trustees and if they should be likewise sued no recovery could be against them because they are only nominal 'T is almost like the Grant of an Office of chief Prothonotary of the Court of Common-Pleas to two persons for Life 18 Ed. 4. f. 7. which cannot be good because the Rolls of the Court cannot be in the keeping of two persons at one time It hath been adjudged that this very Office cannot be granted for years Cro. Car. 587. Jones 437. because 't is an Office of Trust and daily Attendance and such a termor for years may dye intestate and then it would be in suspence 'till Administration is committed which is the act of another Court 2. Point That the Escapes found in the Inquisition and the non-attendance of the Trustees are sufficient cause of Forfeiture 'T is true at the Common-Law Debt upon an Escape will not lie against the Goaler that Action was afterwards given by the Statute of W. 2. For before that Act the only remedy against the Goaler was to bring an Action on the Case against him founded upon a wrong done Dyer 273. But now Debt will lie and if the party is not sufficient at the time of the Escape 2 Inst 382. respondeat superior The Marshal who executes this Office be it by right or wrong is answerable to the King and his People for Escapes If they are voluntary 't is a Forfeiture of his Office nay if a Deputy suffer such Escapes 't is a Forfeiture by the Principal unless such Deputation be made for Life and then the Grantee for Life only forfeits the Office As to the non-attendance of the Trustees if Mr. 39 H. 6.32 Lenthal be Tenant at will and hath granted this Office to another for Life this is a determination of the Tenancy at will and a Forfeiture as to him Now this Grantee for Life cannot be said to be a Deputy for such a Grantee himself cannot make a Deputy and therefore a fortiori a Tenant at will cannot do it But admitting he should be Deputy yet a Forfeiture by him is a Forfeiture by his Superior and therefore Mr. Lenthal 's tenancy at will being gone the Trustees ought to attend and their non-attendance ought to be a Forfeiture The non-attendance of an Officer Cro. Car. 491. who was only a Searcher in a Port Town was adjudged a Forfeiture much greater is the Fault of that Officer who hath the administration of Iustice if he do not give his attendance Besides 39 H. 6.34 a. 9 Co. 46. Dyer 198. Sid. 81. Dyer 150 151. if they do not attend by consequence they cannot act in the Office and non-feazance is as sufficient a cause of Forfeiture as any other mis-behaviour whatsoever But if the Trustees had given attendance they are persons inexperient and therefore incapable to execute this Office for which they may be lawfully refused by this Court Mr. Pollexfen chiefly insisted upon the point of Pleading that the matter found by the Inquisition was not answered by the Plea First he excepted that the Defendant had not by his Plea entituled himself to any Estate in this Office 1 Leon. 202. 2 Inst 695. Stamf. 62 64. 2 Leon. 123. and therefore he could not traverse the Title of the King without making a Title to himself for why should he desire that the Kings Hands may be amoved and he restored to his Office if he hath not shewen a Title to it His pleading of this Deed of Trust by which he is permitted to receive the Profits c. during Life cannot create such an Estate in him as will be executed by the Statute of Vses therefore he can have no Estate for Life for if a Man is seised in Fee of an Estate and makes a Declaration thereof in Trust for J. S. this is no colour to make an Estate for Life in J. S. The Defendant hath therefore no more than a Trust in this Office which is nothing in the Eye of the Law and for which there is no remedy but by Subpoena in Chancery so that being only a Cestui que trust he hath neither jus in re nor ad rem He cannot be Tenant at will for he is not made so by the Deed of Trust There is a great deal of difference between Evidence and Pleading for this very Deed may be an Evidence of an Estate at will but 't is not so in pleading therefore he ought to have pleaded that coram praetextu he was possessed of the Office and took the Profits c. but he having otherwise pleaded and not entituled himself to any Estate therein he ought to be laid aside as an incompetent person The Plea of Sir Edward Norris
Case Plea where it amounts to the general Issue wherein the Plaintiff declared that the Defendant exhibited a Peittion against him and Sir R. H. before the King in Council by reason whereof he was compelled to appear at his great Expence and that he was afterwards discharged of the matter alledged against him which was the erecting of Cottages in Kingswood Chase in the County of Gloucester This Action was first laid in Gloucestershire and the Defendant moved that it might be laid in Middlesex where the Petition was exhibited But it was insisted for the Plaintiff that where a cause of Action ariseth in two places he hath his Election to lay it in either The Court held that the exhibiting of the Petition was the ground of the Action and though it conteined matter done in another place yet it shall be tried in the County where the Petition was delivered for suppose the Petition had contained Matter done beyond Sea c. Now in this Case the Action being brought in Middlesex the Defendant pleaded that the Chase was injured by the erecting the said Cottages by the digging of Pits and by the making of a Warren by Sir John Newton and that the other person Sir R. H. being then a Iustice of the Peace for the County of Gloucester upon Complaint to him made did not impose Penalties upon the Offenders but did abet the said Plaintiff by reason whereof the Deer were decreased from 1000 head to 400. To this Plea the Plaintiff demurred Mr. Pollexfen argued against the Plea first that it charged Sir R. H. with no particular Crime but enlargeth the Matter upon the Plaintiff and amounts to no more than the general Issue for the Question is whether the Defendant hath fasly prosecuted the Plaintiff before the King in Council which is only matter of fact and which is charged upon the Defendant and therefore he ought to have pleaded Not-Guilty 'T is true where the Defence consists in matters of Law there the Defendant may plead specially but where 't is purely fact the general Issue must be pleaded E contra E contra It was insisted upon that what is alledged in this Plea might be given in Evidence upon the general Issue but the Defendant may likewise plead it specially and not trust the Matter to the Lay-gents As in Conspiracy for procuring of the Plaintiff to be falsly and maliciously indicted of a Robbery Cro. Eliz. 871 900. 21 E. 3.17 27 Ass 12. Kelway 81. Moor 600. Rast Ent. 123. Sed nota This Defence was matter of Law the Defendants plead that they were robbed and suspecting the Plaintiff to be guilty procured a Warrant in order to have the Plaintiff examined before a Iustice of the Peace of which he had notice and absented himself but was afterwards committed to the Gaol by a Iudge of this Court who advised them to preferr a Bill of Indictment c. quae est eadem conspiratio this was adjudged a good Plea though it amounted to no more than the general Issue and all this matter might have been given in Evidence at the Trial. The Court except Iustice Allybon advised the Plaintiff to waive his Demurrer and the Defendant to plead the general Issue But Iustice Allybon took an Exception to the Declaration for that the Plaintiff had not alledged any damnification but only that he was compelled to appear and doth not shew how either by the Petition of the Defendant or by Summons c. He ought to set forth that he was summoned to appear before the King in Order to his discharge but to say coactus fuit comparere is incertain for that might be in the vindication of his Honour or Reputation He complains of a Petition exhibited against him which the Defendant hath answered by shewing to the Court sufficient matter which might reasonably induce him so to to and for that reason he held the Plea to be good Sed adjornatur Rex versus Hockenhul AN Information was exhibited against him for a Riot Misprision of a Clerk amended of which he was found guilty and this Exception was taken in arrest of Iudgment Memorandum quod ad general ' quarterial ' Session ' Pacis tent ' c. die Sabbati prox ' post quindenam Sancti Martini praesentat ' existit quod the Defendant 27 die Januarii in such a year vi armis c. So the Fact is laid after the Indictment which was exhibited against the Defendant at the Michaelmas Sessions and the Fact is laid to be in January following in the same year But the Attorny General said this was only a Misprision of the Clerk in titling the Record viz. in the Memorandum 8 Co. 156. 4 H. 6.16 10 Ass 26. Cro. Car. 144. and there was no fault in the Body of the Information and that it was amendable at the Common Law He cited some Cases to prove where amendments have been in the Cases of Subjects of greater Mistakes than here a fortiori it ought to be amended in the King's Case 'T is not only amendable at the Common Law 4 H. 6. c. 3. 8 H. 6. c. 12. Jones 421. but by several Statutes which extend to all Misprisions of Clerks except Treason Felony and Outlawry wherefore this mistake of Quinden ' Martini was amended and made Quinden ' Hillarii Rex versus Sellars THE Defendant was indicted at the Sessions in London for not attending at the Wardmote Inquest being chosen of the Iury for such a year Indictment quashed To this Indictment he pleaded the King's Grant to the Company of Cooks of which he was a Member by which Grant that Company is exempted from being put or summoned upon a Iury or Inquest before the Mayor or Sheriffs or Coroner of London c. And upon a Demurrer the Question was whether the Cooks are discharged by this Grant from their Attendance at the said Wardmote Inquest And for the King it was argued that they are not discharged Before the Iudgment upon the Quo Warranto brought against the City of London these Courts there were like the Hundred Courts in the County for as these were derived out of the County 4 Inst 249. so those were derived from the Lord Mayor's Court which is a Court of Record and erected for the better Government of the City and the Aldermen of every Ward had right to hold Leets there 1. But now the words of this Grant do not extend to this Case for the Cooks are thereby discharged only from being of a Iury before the Mayor Sheriffs or Coroner c. but the Court of Wardmote is held before neither for 't is held before the Alderman of the Ward 2. Dyer 269. The words in this Grant ought to be taken strictly viz. that Cooks shall be exempted if there be other sufficient Men in the Ward to serve besides and if this doth not appear the Grant is void but this is not alledged E contra E
' ac qd ' Record ' ill ' in nullo vitiosum aut defectivum existit Ideo considerat ' est qd ' Judicium praed ' adjudication ' executionis superinde in omnibus affirmetur ac in omni suo robore stet effectu dict' causis materiis superius pro Error ' assign ' in aliquo non obstante Et ulterius per Cur. Judgment affirmed Domini Regis Dominae Reginae nunc hic cons est qd ' praedict ' Abel Ram recuperet versus praefatum Donatum Obrian octodecim libras eidem Abel per Curiam Domini Regis Dominae Reginae nunc hic secundum formam Statuti in hujusmodi casu edit ' provis adjudicat ' pro mis custag ' dampn ' suis quae sustin ' occasione dilationis executionis Judicij praedict ' praetextu prosecutionis praedict ' Brevis de Errore Et qd ' praedictus Abel habeat inde executionem c. Obrian versus Ram. ERror to reverse a Iudgment given in Ireland Whether a Sci. fa. will lie against the Husband alone after the death of the Wife upon a Judgment had against her dum sola upon a Scire Fac. brought against the Plaintiff in the Errors setting forth that Debt was brought upon a Bond against Elizabeth Grey and a Iudgment was thereupon obtained for 800 l. dum sola That the said Elizabeth afterwards intermarried with Mr. Obrian That a Scire Facias was brought upon that Iudgment against Husband and Wife to shew cause why the Plaintiff should not have execution That upon this Scire Facias there were two Nichils returned and thereupon Iudgment was had against Husband and Wife It rested for a year and a day and then the Wife died and the Plaintiff brought a new Scire Fac. against the Husband alone to shew cause why he should not have Execution upon the first Iudgmont The Defendant pleaded that there was another Scire Fac. brought against him and his Wife for the same Cause c. And upon a Demurrer to this Plea Iudgment was given in Ireland against him The Question now was whether this Scire Fa. will lye against the Husband alone after the death of his Wife This Case was argued by Mr. Finch and Mr. Pollexfen that the Husband was not chargable It was admitted on all sides that if a Feme sole is indebted and marries that an Action will lye against the Husband and Wife and he is lyable to the payment of her Debts It was agreed also that if a Iudgment be had against a Feme sole and she marries and afterwards dies that the Husband is not chargable because her Debts before Coverture shall not charge him unless recovered in her Life-time In like manner no Debts which are due to her dum sola shall go to the Husband by virtue of the inter-marriage if she dye before those are recovered but her Administrator will be entituled to them which may be the Husband but then he hath a Right only as Administrator 1 Roll Abr. 351. and the reason is because such Debts before they are recoverd are only choses in Action And from hence the Council did inferr that the Iudgment in this Case against the Wife dum sola did not charge the Husband Then the Question will be if the Husband is not chargeable by the Original Iudgment whether the Iudgment on the Scire Fac. had not made an alteration and charged him after the death of his Wife And as to that it was said that this Iudgment upon the Scire Fac. made no new charge for 't is only quod habeat executionem c. and carries the first Iudgment no farther than it was before for 't is introduced by the Sci. Fac. At the Common Law no Execution could be had upon a Iudgment after a year and a day and there was then no remedy but to bring an Action of Debt upon that Iudgment This Inconvenience was remedied by the Statute of Westm W. 2. cap. 45. the 2. which gives a Scire Fac. upon the Iudgment to shew cause why Execution should not be had which can be no more than a liberty to take Execution upon the Original Iudgment which cannot charge the Husband in this case because 't is only a consequence of that Iudgment and creates no new charge for a Release of all Actions will discharge this award of Execution But the Reasons why the original Iudgment shall not be carried farther by the Iudgment in the Scire Fac. are as follow 1. By considering the nature of a Scire Fac. which lay not at the Common Law but is given by the Statute in all persosonal Actions the words whereof are these Viz. 2 Inst 469. Sid. 351. Observandum est de caetero quod ea quae inveniuntur irrotulat c. Vpon which words it is evident that the execution of the first Iudgment on Record is all which is given by this Act after the year and day and it takes off that bar which was incurred by the lapse of time and gives a speedy Execution of the Iudgment recorded 2. The Proceedings upon a Scire Facias shew the same thing for the Writ recites the first Iudgment and then demands the Defendant to shew cause why the Plaintiff should not have Execution thereon juxta vim formam effectum recuperationis praed but prays no new thing 3. A Scire Facias is not an Original but a Iudicial Writ which depends purely upon the first Iudgment 1 Roll. Abr. 777. pl. 6. 8 Co. 143 Dr. Drurie's Case and a Writ of Error suspends the execution of both so likewise if the Original Iudgment be reversed even a Iudgment obtained upon a Scire Facias will be reversed in like manner 4. The Law doth not charge a Man without an Appearance but here is none and the Statute can never operate upon this Case because that extends only to such Iudgments upon which there has been a Recovery and here is nothing recovered upon this Scire Facias for 't is only to have Execution upon the first Iudgment If the Law should be otherwise this absurdity would follow Viz. There would be a Recovery without a Record for the purport of the Scire Facias is only to have Execution according to the form and effect of the Record and the very Record it self doth not charge the Husband Besides the first Iudgment did charge the Lands of the Wife which are still liable to satisfie the Debt why therefore must the Lands of the Husband be charged Cannot the Administrator of the Wife bring a Writ of Error to reverse this Iudgment and if it should be reversed shall the Husband pay the Debt and the Administrator of the Wife be restored The Objections made by the Council on the other side against this Opinion were viz. That if an Action of Debt will lie upon a Iudgment in a Scire Facias the Original Iudgment is by this means carried farther for without
the King may be seized in Fee of an Hundred and that he may grant Retorna Brevium the Statutes are plain in it 14 E. 3. c. 9. for otherwise how came any Lords to have Hundreds in Fee but by the Kings Grants And 't is as plain that Hundreds may be divided from the County 2 E. 3. c. 12. for else to what purpose was the Statute of Lincoln made which adjoins Hundreds and Wapentakes to the Counties and provides that they shall never be separated again this shews that they were divided at that time The Objections which have been made are viz. That the Defendant cannot have a Title to this Office by Grant and he hath not made any Prescription to it The Reasons given why he could not have it by Grant were because ancient Hundreds which were united to the Counties by the Statute of Ed. 3. could never afterwards be divided from them by any Grant of the King and those which were excepted in that Statute as being granted in Fee by the King or his Ancestors when they come again to the Crown cannot be regranted because they are merged in it In answer to which it was said that such ancient Liberties which were created by the Crown and did subsist by the King 's Grant before the Statute of Ed. 3. when afterwards they came to the King were not merged but remained a distinct Interest in him The Hundred of Gartree in the County of Leicester was such a Liberty it was an ancient Hundred and granted by Ed. 2. Cole versus Ireland Raym. 360. to John Sedington not in Fee but durante bene placito Regis this Grant was long before the making of the Statute of Ed. 3. and yet afterwards this very Hundred was granted to several other persons by the suceeding Kings of England which shews it was merged in the Crown when it came to the King The other Objection was that Retorna Brevium doth not lie in Prescription Now as to that though it be true that no Title by Prescription can be made to such Franchises and Liberties which cannot be seized as forfeited before the cause of Forfeiture appears on Record because Prescription being an Vsage in pais doth not extend to such things which cannot be had without matter of Record 1 Inst 114. b. Yet my Lord Coke is clear that a good Title may be made to hold Pleas Leets Hundreds c. by Prescripteon only without Matter of Record But notwithstanding what was said to maintain this Plea Iudgment was given against the Defendant Rex versus Griffith THE Defendant was convicted of Manslaughter at the Old-Bayly Indictment for Murder the Party was found guilty of Manslaughter and pleaded his Pardon and afterwards the Indictment was quashed to save the Forfeiture of his Goods and the Record being removed into this Court by Certiorari he pleaded his Pardon and had Iudgment Quod eat inde sine die But being once convicted the Dean and Chapter of Westminster did seize his Goods as forfeited by that Conviction who thereupon although he was out of the Court by that Iudgment yet he moved by his Council to quash the Indictment The Exceptions taken were viz. That the Indictment was Per Sacramentum duodecim proborum legalium hominum jurat ' onerat ' praesentat ' existit modo forma sequen ' Midd. ss Juratores pro Domino Rege praesentant c. That there was no President to warrant such an Indictment for this may be the Presentment of another Iury it being very incoherent to say that it was presented by the Oaths of twelve Men that the Iury do present It ought to be praesentat ' existit quod c. and so is the form of this Court as the Clerk of the Crown inform'd them 2. They present that Griffith and two others did make an Assault on the Body of the deceased and that quidam Johannes in nubibus did wound him with a Gun so that 't is uncertain who did shoot and what Gun was discharged which ought to be certainly laid in the Indictment Vaux 's Indictment for Poisoning Ridley was 4 Co. 44. b. that the said Ridley not knowing the Beer to be poyson'd but being perswaded by Vaux recepit bibit but did not say venenum praedictum and so it not appearing what thing he did drink which ought to have been expresly alledged the Indictment was held insufficient And the reason is plain for an Indictment for Felony being a Declaration for the King against the Life of a Subject ought to set forth a sufficient certainty of the Fact which shall not be supplied either by Argument or any intendment whatsoever And therefore in Long 's Case the Defendant was indicted for discharging a Gun upon Long 5 Co. 122. b. Dans eidem Henrico Long mortale vulnus and doth not say percufsit for which reason that Indictment was also held insufficient because in all Indictments for Murder they ought expresly to alledge a stroke given For these Reasons the Indictment was quashed and a new Roll was made on which this Indictment and Certiorari were both entred and Iudgment quod exoneretur and this was done to avoid the seizure And afterwards in Michaelmas Term primo Will. Mar. it was said by the Chief Iustice that it must be intended these were two persons for no Court would justifie such a Iudgment Anonymus IN Assault and Battery After a Traverse you must not conclude to the Country the Defendant pleaded a Release of all Actions c. The Plaintiff replied that the Release was gotten by duress c. The Defendant rejoyned and shewed cause why it was not gotten by duress but that he sued forth a Capias and did Arrest him c. and that the Release was voluntary c. The Plaintiff surrejoyns and saith that it was gotten by duress absque hoc that it was voluntary Et hoc petit quod inquiratur per patriam Vpon this Issue the Cause was tryed Dyer 353. a. 1 Inst 126. a. Cro. Car. 316. Sid. 341. 2 Cro. 588. 2 Rol. Rep. 186. and the Plaintiff had a Verdict and now it was moved in Arrest of Iudgment that he ought not to conclude to the Country after a Traverse because a Traverse it self is Negative and therefore the Defendant ought to have joyned issue in the Affirmative 't is true if issue had been joyned before the Traverse it might have been helped by the Statute of Ieofails but it was not so in this Case and therefore the Iudgment was Arrested Hitchins versus Basset Mil ' IN Ejectment upon the Demise of Mr. Nosworthy The Iury found a special Verdict A subsequent Will which doth not appear shall not be a Revocation of the former the substance of which was Viz. That Sir Henry Killigrew was seised in Fee of the Lands in question in the County of Cornwal and being so seised did in the year 1644. devise the
Indebitatus Ass will lye for a Fine upon an Admission c. That a Fine was due to him for an admission That upon the death of the said Lord the Manor descended to W. as his Son and Heir who died and the Plaintiff as Executor to the Heir brought an Indebitatus Assumpsit for this Fine He declared also that the Defendant was indebted to him in 25 l. for a reasonable Fine c. The Plaintiff had a Verdict and entire Damages and it was now moved in arrest of Iudgment that an Indebitatus will not lie for a Customary Fine because it doth not arise upon any Contract of the Parties but upon the Tenure of the Land for upon the death of the Lord there is a Relief paid for there must be some personal Contract to maintain an Action of Debt or an Indebitatus Assumpsit 2 Cro. 599. Jones 339. and therefore it was held that where the Plaintiff locasset a Ware-house to the Defendant he promised to pay 8 s. per Week An Assumpsit was brought for this Rent and a Verdict for the Plaintiff And a Motion was made in Arrest of Iudgment that this was a Lease at Will and the weekly payment was in the nature of a Rent and it was agreed that an Assumpsit would not lie for a Rent reserved because it sounds in the Realty but because it was only a Promise in consideration of the occupying of the Warehouse the Action was held to be well brought 2. Where the Cause of an Action is not grounded upon a Contract but upon some special Matter there an Indebitatus Assumpsit will not lie and therefore it will not lie upon a Bill of Exchange or upon an Award or for Rent though there is a Privity both of Contract and Estate without a special Assumpsit E contra E contra It was argued that the Action lies for though a Fine savours of the Realty yet 't is a certain Duty In all Cases where Debt will lie upon a simple Contract there an Assumpsit will lie likewise 't is true this doth concern the Inheritance but yet 't is a Contract that the Tenant shall be admitted paying the Fine It hath been also maintained for Mony had and received out of the Office of Register for the Plaintiffs use and for Scavage Mony due to the Mayor and Commonalty of London 3 Keb. 677. which is also an Inheritance 'T is a Contract implyed by Law and therefore the Action is well brought Afterwards in Michaelmas Term 1 Willielmi Mariae by the Opinion of Iustice Dolben 2 Leon. 79. Eyre and Gregory Iudgment was given for the Plaintiff But the Chief Iustice was of another Opinion for he held that if the Defendant had died indebted to another by Bond and had not Assets besides what would fatisfie this Fine if the Executor had paid it to the Plaintiff it would have been a Devastavit in him Suppose the Defendant promiseth that in consideration that the Plaintiff would demise to him certain Lands that then he would pay the Rent If the Defendant pleads Non Assumpsit Cro. Car. Acton versus Symonds the Plaintiff must prove an express Promise or be Non suit Also here is no Tenure or Custom set out Yet by the Opinion of the other three Iustices the Plaintiff had his Iudgment Rex versus Johnson INformation upon the Statute of 29 30 Car. 2. cap. 1. Pardon after a Verdict for the King excuseth the Forfeiture prohibiting the Importation of several French Commodities and amongst the rest Lace under the Penalty of 100 l. to be paid by the Importer and 50 l. by the Vendor and the Goods to be forfeited The Information sets forth that a Packet containing so many yards of Lace was imported by the Defendant from France and that he did conceal it to hinder the Seisure and that he did privately sell it contra formam Statuti Vpon Not-Guilty pleaded the King had a Verdict and on the 2d of October there came forth a general Pardon in which were these Words viz. That the Subjects shall not be sued or vexed c. in their Bodies Goods or Chattels Lands or Tenements for any Matter Cause or Contempt Misdemeanour Forfeiture Offence or any other thing heretofore done committed or omitted against us Except all Concealments Frauds Corruptions Misdemanours and Offences whereby we or our late Brother have been deceived in the Collection payment or answering of our Revenues or any part thereof or any other Mony due or to be due to us or received for us or him and all Forfeitures Penalties and Nomine Poena's thereupon arising and all Indictments and Informations or other Process and Proceedings now depending or to be depending thereupon The Question now was whether this Forfeiture was excused by this Pardon The Attorney General argued that it was not because an Interest is vested in the King by the Iudgment and that no particular or general Pardon shall divest it without words of Restitution So was Tooms's Case who had Iudgment against another 1 Sand. 361. and then became Felo de se his Administrator brought a Scire Facias quare Executionem non haberet The Debtor pleaded that after the Iudgment the Intestate hanged himself which was found by the Coroners Enquest returned into this Court. The Plaintiff replied the Act of Pardon But it was adjudged for the Defendant for when the Inquisition was returned then the Debt was vested in the King which could not be divested without particular words of Restitution and which were wanting in that Act of Pardon The most proper word in the Body of this Pardon which seems to excuse the Defendant is the word Offence but the same word is likewise in the Exception viz. Except all Offences c. in collecting or paying of Mony due to us and all Forfeitures c. Now the concealing of forfeited Goods from Seisure is an Offence excepted for 't is a remedy for the King's Duty of which he was hindred by the Concealment 'T is true the first part of the Pardon excuseth all Misdemeanours comitted against the King in his standing Revenue but this Exception takes in all Concealments and Frauds in answering of the Revenue and this Information is principally grounded upon Fraud 5 Co. 56. so that the Exception ought to be taken as largely for the King as the Pardon it self to discharge the Subject No Fraud tending to the diminution of the Revenue is pardoned for it excepts not only all Concealments in collecting the Revenue but other Mony due or to be due to the King If therefore when the King is entituled by Inquisition Office or Record there must be express and not general words to pardon it and since this Fact was committed before the Pardon came out and so found by the Iury whose Verdict is of more value than an Enquest of Office so that the King by this means is entituled to the Goods by Record
the first words the Legacy is released then the subsequent words viz. all Actions Suits and demands whatsoever which he had against the Defendant as Executor of Lawford must mean something 'T is true where general words are at the beginning of a Release and particular words follow if the general words agree with those which are particular the Deed shall be construed according to the special words But where there are such words at first and the conclusion is with general words as 't is in this Case both shall stand for the Rule is Generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa 8 Co. 154. b. These words do also Release not only such Actions which he had in his own Right but also as Executor to Mr. Lawford If a Man hath a Lease in right of his Wife as Executrix to her former Husband and he grants all his Right and Title therein by this Grant the Right which he had by his Wife doth pass for the word His doth imply a propriety in possession But per totam Curiam Curia Iudgment was given for the Plaintiff If an Executor hath Goods of the Testators and also other Goods in his own Right and then grants omnia bona sua in strictness the Goods which he hath as Executor do not pass because they are not bona sua but so called because of the Possession which he hath and therefore it must be a great strein to make general words which are properly applicable to things which a Man hath in his own Right to extend to things which he hath as Executor It was never the intent of the Party to release more than what he had in his own Right and that appears by the Recital of the Legacy of 5 l. and therefore the words which follow must have a construction according to the intent of Donning at the time of the making the Release and shall be tied up to the foregoing words and then nothing will be discharged but the Legacy As if a Lease for years be made Dyer 255. and the Lessor enters into a Bond that he will suffer the Lessee quietly to enjoy during the Term without trouble of the Lessor or any other person if an Entry should be made upon the Lessee without the procurement or knowledge of the Lessor the Condition is not broken for the last words are tied up to the word suffer If the Legacy had not been released by particular words it would not have been discharged by a Release of all Actions and Demands whatsoever and therefore there would be a great inconvenience if these general words should be construed to Release any thing besides this Legacy for suppose there are two Executors and one refuseth to Administer but meeting with a Debtor of the Testator gives him a Release of all Actions will this amount to an acceptance of the Administration Certainly it will not The words in this Case are not of that extent as to Release Actions as an Execuror for 't is a Release which goeth to the right 'T is like the Case where one of the Avowants released the Plaintiff after the taking of the Cattel 1 Roll. Rep. 246. which was adjudged void upon a Demurrer because he had not then any Suit or Demand against the Plaintiff but had distreined the Beasts as Bayliff and in right of another Iustice Dolben cited a Case adjudged in B. R. in the year 1669. it was between Stokes and Stokes The Plaintiff released all which he had in his own Right there was a Bond in which his Name was used in Trust for another and afterwards he brought an Action of Debt upon that Bond to which the Release was pleaded The Plaintiff replied that the Release was only of all such Actions which he had in his own right and not such which he had in the right of another upon this they were at Issue and the Plaintiff had a Verdict and Mr. Sympson moved in Arrest of Iudgment that this Bond must be in his own Right But the Court affirmed the Iudgment Anonymus AN Action on the Case was brought for these words Words where actionable without a Colloquium viz. He stole the Colonel's Cupboard-Cloth It was made a Question whether these words were actionable there being no precedent discourse laid in the Declaration either of the Colonel or his Cupboard-Cloath But the Court held the words actionable for 't is a charge of Felony and if such words as now laid in this Declaration are not actionable any person may be scandalized for 't is and must be actionable to say of a Man that he stole my Lord's Horses or the Parson's Sheep tho' it doth not appear to what Lord or Parson they did belong Rex versus Silcot THE Defendant was convicted before a Iustice of the Peace Conviction for keeping a Gun not having a 100 l. per Annum and doth not say when 33 H. 8. c. 6. upon the Statute of H. 8. for keeping of a Gun and upon proof it did appear that he had not 100 l. per Annum The Record of the Conviction was removed into B. R. and this Exception was taken to it viz. non habuisset 100 l. per Annum but doth not say when for it may be that he had one hundred pound per Annum at the time when he kept a Gun but not when he was Convicted It was answered that the words non habuisset shall relate to all times past and is as much as to say nunquam habuit and the conclusion being contra formam Statuti must explain such words which seem to be doubtful This was compared to the Case where Debt was brought upon the Statute of R. 1 R. 3. c. 3. 3. for taking away of Goods before the Plaintiff was convicted of the Felony laid to his charge contra formam Statuti he being only committed upon suspicion now though he did not alledge that the Goods were taken Cro. Eliz. 749. for this cause it shall be intended they were so taken when no other cause is shewed Curia This is a conviction before a Iustice of the Peace and therefore the time when the Offence was committed should be certainly alledged viz. that the Defendant praedict Anno die had not 100 l. per Annum for which reason it was quashed Bisse versus Harcourt Hill 1 Gulielmi Rot. 217. THE Plaintiff brought an Action for 400l Replication not well concluded for so much Mony had and received of him by the Defendant The Defendant pleaded an Attainder of High Treason in Abatement and therefore ought not to answer the Declaration The Plaintiff replied that after he was Attainted and before this Action brought he was pardoned and concludes thus Unde petit Judicium dampna sua The Defendant demurs and for cause shewed Rast Ent. 663. b. 681. Co. Ent. 160. that the Replication is not well concluded for dampna sua
long a Man may live in one of these ancient Houses Such a Custom might be good in point of Tenure for it might have a reasonable commencement between Lord and Tenant but this cannot be good as laid in this Declaration for several Reasons 1. Because 't is not alledged that the Defendants of right ought to keep a Boat there or that it was necessary for them to be always attending for possibly it might require the use of skilful Men and therefore in all Actions brought for not repairing of Ways 't is alledged that the Defendant reparare debuit 2. Because it brings a Charge without any recompence 8 E. 4.18 Br. Tit. Customs pl. 46. and this must be very unreasonable 'T is true that a Custom for Fishermen to dry their Nets upon another Man's Ground is good which may seem to be a Charge upon the Land without any Reward but the reason is because the catching of Fish is for the publick benefit and every man may have advantage by it A Custom to have solam separalem pasturam hath been formerly doubted whether good or not but 't is now held to be good because the Lord of the Soil might have some other Recompence for it 3. Because 't is unlimited for the Tenants may pass and repass ad libitum according to this Custom but it ought to be laid for their necessary occasions for otherwise the Defendants may be deprived of their Freehold because the Tenants may always keep the Boat in use The 2d Point was not much insisted on which was as to the matter of the Plea only it was said that it was not so well to take away the whole Prescription that the Plea might have been good if it had been quousque the Bridge fall or decayed then the Prescription doth revive again The 3d. Point Then supposing the Declaration to be sufficient yet as this is upon the Record the Plaintiff could not have this Action because he had set forth this to be a publick and common Ferry for all People to pass and that he was hindred but doth not shew any particular damage and therefore can have no cause of Action 'T is like the Case of a common High-way which is out of repair 27 H. 8. 27. a. 1 Inst 56. Moor 108. Cro. Eliz. 664. 5 Co. 104. for which no man can bring an Action unless he hath a particular damage or loss more than the rest of the People passing that way but the Party ought to be indicted and this is to prevent multiplicity of Suits for if one man may have an Action every person traveling that way may have the like Another Exception was taken to the Declaration viz. that all the Custom is laid to be for the Inhabitants of an ancient Vill to pass Toll-Free from Ferry-Lane to Adventurers-Bank and they do not alledge that Bank to be within the Vill. Those who argued for the Plaintiff held this to be a good Custom E contra as set forth by him and as such 't is not confined to the same Rules with a Prescription which must have a lawful commencement but it is otherwise in a Custom for 't is sufficient if it be certain and reasonable The Cases cited on the other side are not to this purpose because they concern only such Customs which relate to some Interest or profit in the Land of another person but this Custom is only in a matter of exemption and easment This was the very difference taken by the Iudges in Gatewood 's Case 6 Co. where it was held to be a good Custom for every Inhabitant of a particular Town to have a Way over such Lands to go to Church or Market because this was matter of easement and no profit Now a Passage over a River is no more than a way and may be tied up to one or more persons according to their comorancy Since therefore no Interest is claimed by the Plaintiff but only an easment this Prescription need not be laid in the Owners but in the Inhabitants of the Vill of Littleport It may be compared to a Case where a Custom was laid for the Inhabitants of a Town to pay a Modus in discharge of Tythes Hob. 118. Yelv. 163. this was held good because it was by way of discharge in the persons Lands without claiming any profit in that of another 'T is also like the common Case of a Market when a Man has pitched his Stall there no person can remove it for he hath a right ratione comorantiae Then as to the first Objection upon the first Point That a Custom to pass and repass ad libitum cannot be good it was answered this passage was in the nature of a High way over which a Man may pass as often as he will and therefore 't is well enough as laid in the Declaration 2. As to the Objection that it ought to be laid in some person and not in the Inhabitants it was said this was an easment to the Plaintiff and no such thing can be to one man but it makes another a Crespasser and 't is no Interest in the Plaintiff to be discharged of a Charge A Custom to grind at the Lords Mill discharged of Toll rules this Case for is it not as much charge for a Lord of a Mannor to keep a Mill as for the Defendant to keep a Boat If the Plaintiff had prescribed then this had come within the the Rules of Gatewood 's Case But he hath alledged a Custom and when such Allegations are made they ought not to be too narrowly searched for No reason can be given why an Infant at 15 years of Age shall be capable to make a Feoffment in one Town and not in another 18 Ed. 4.3 3. Then as to the third point that this being laid to be a Common Ferry the Plaintiff ought to shew some special damage to maintain an Action To which it was answered that the right was on the Plaintiff's side and that was sufficient to maintain the Action 'T is not like the Case of a Common-High-way as mentioned on the other side because this Action is confined to Littleport alone and no Man is intituled to it but such who inhabit that Vill so that every Man cannot bring an Action As to the Exception to the form of the Declaration that Adventurers-Bank is not laid to be in the Vill it was said that the Plaintiff only claimed a right of passage over the River which is laid to be in the Vill of Littleport 2 Cro. 555 557. the Bank is only the terminus ad quem 't is like the Case where the Defendant covenanted to repair a Mill and the Water-courses in a Parish and also the Banks belonging to the Mill in which Case the Plaintiff had Iudgment tho' he did not shew in what Vill the Banks were because it shall be intended to be in the same Vill where the Mill was Afterwards in Trinity Term
the Neglect in this Case was in the Servant the Action may be brought against all the Owners for it is grounded quasi ex contractu though there was no actual Agreement between the Plaintiff and them And as to this purpose 2 Sand. 345. Hob. 206. Hutt 121. 1 Mod. 198. 't is like the Case where a Sheriff levies Goods upon an Execution which are rescued out of the hands of his Bailiffs this appearing upon the Retorn an Action of Debt will lie against him though there was no actual Contract between the Plaintiff and him for he having taken the Goods in Execution there is quasi a Contract in Law to answer them to the Plaintiff 2. As to the second Point it was ruled that Not-Guilty was a good Plea to any Mis-feazance whatsoever and that a Plea in Abatement viz. that the rest of the Owners super se susceperunt simul cum Defendente absque hoc quod Defendens super se suscepit tantum had been no more than the general Issue 3 Cro. 554. Vering versus More but he hath not pleaded thus Iustice Dolben agreed that the Action ought to be brought against all the Proprietors it being upon a Promise created by Law but he was Opinion that this Matter might have been pleaded in Abatement Gold versus Strode AN Action was brought in Somersetshire and the Plaintiff recovered and had Iudgment and died Intestate Gold the now Plaintiff took out Letters of Administration to the said Intestate in the Court of the Bishop of Bath and Wells and afterwards brought a Scire Facias upon that Iudgment against the Defendant to shew Cause quare Executionem habere non debeat He had Iudgment upon this Scire Facias and the Defendant was taken in Execution and escaped An Action of Debt was brought by the said Gold against this Defendant Strode who was then Sheriff for the Escape and the Plaintiff had a Verdict It was moved in arrest of Iudgment and for Cause shewen that if the Administration was void then all the dependencies upon it are void also and so the Plaintiff can have no Title to this Action Now the Administration is void because the entring upon Record of the first Iudgment recovered by the Intestate in the County of Middlesex where the Records are kept made him have bona notabilia in several Counties and then by the Law Administration ought not to be committed to the Plaintiff in an inferior Diocess but in the Prerogative Court Curia The Sheriff shall not take advantage of this since the Iudgment was given upon the Scire Fac. and the Capias ad satisfaciendum issuing out against the then Defendant directed to the Sheriff made him an Officer of this Court and the Iudgment shall not be questioned by him for admitting it to be a Recovery without a Title yet he shall take no advantage of it till the Iudgment is reversed 'T is not a void but an erronious Iudgment and when a person is in execution upon such a Iudgment and Escapes and then an Action is brought against the Goaler or Sheriff 8 Co. 141. and Iudgment and Execution thereon though the first Iudgment upon which the party was in execution should be afterwards reversed yet the Iudgment against the Goaler being upon a collateral thing executed shall still remain in force The Ca. Sa. 21 E. 4. 23. b. Cro. El. 164. Moor 274. 2 Cro. 3. 1 Rol. Abr. 809 God b. 403. 2 Leon. 84. was a sufficient authority to the Sheriff to take the Body though grounded upon an erronious Iudgment and that Execution shall be good till avoided by Error and no false Imprisonment will lie against the Goaler or Sheriff upon such an Arrest Coghil versus Freelove In the Common-Pleas DEBT for Rent was brought against the Defendant as Administratrix of Thomas Freelove her late Husband deceased Debt for Rent incurred after an assignment by an Administrator for the privity of Contract is not determined by the death of the intestate 2 Vent 209. in which Action the Plaintiff declared That on the 1st of May 21 Car. 2. he did by Indenture demise to the said Thomas Freelove one Messuage and certain Lands in Bushey in Hertfordshire Habendum from Lady day then last past for and during the term of 21 years under a yearly Rent that by virtue thereof he entred and was possessed That on the 7th of March 1685. the said Thomas Freelove died Intestate and that the next day Administration of his Goods and Chattels was granted to the Defendant and that 78 l. was in arrear for Rent due at such a time for which this Action was now brought in the Detinet The Defendant confessed the Lease prout c. and the death of the Intestate and that the Administration was granted to her but saith that before the Rent was due she by Articles made between her of the one part and Samuel Freelove of the other part did assign the said Indenture and all her right title and interest thereunto and which she had in the Premisses unto the said Samuel Freelove who entred and was possessed that the Plaintiff had notice of this Assignment before he brought this Action but nothing was said of his acceptance To this Plea the Plaintiff demurred and the Defendant joined in Demurrer And Iudgment was given by the Opinion of the whole Court for the Plaintiff against the Authorities following Viz. Cro. Eliz. 555. 'T is true in Overton and Sydal 's Case it was resolved that if an Executor of Lessee for years assign his Interest Debt for Rent will not lye against him after such Assignment the reason there given was because the personal privity of the Contract is determined by the death of the Lessee as to the Debt it self and for the same reason the Executor shall not be lyable to the Rent after the death of the Lessee if such Lessee doth make an assignment of his Term in his life-time My Lord Coke mentioning this Case 3 Co. 24. a. in his third Report affirms that it was resolved by Popham Chief Iustice and the whole Court that if an Executor of a Lessee for years assign his Interest Debt will not lye against him for Rent due after such an Assignment Pop. 120. but my Lord Popham himself in Reporting that very Case tells us he was of another Opinion which was that so long as the Covenant in the Lease hath the nature and essence of a Contract it shall bind the Executor of the Lessee who as well to that as to many other purposes represents the person of the Testator and is privy to his Contracts T is true my Lord Popham held in that Case that the Action did not lye but because it was brought by the Successor of a Prebendary upon a Lease made by him in his life-time who being a single Corporation the personal Contract was determined by his death But the same Case reported by others Moor 251.
Mony for putting them out which must be to such who are willing to to take them for Mony 270 Arbitrament To pay 5 l. presently and give Bond to pay 10 l. more on a day following and now to sign general Releases it shall only discharge such matters which were then depending at the time of the submission and not the Bond 264 2. A person who was a Stranger to the Submission was awarded to be a Surety 't is void 272 3. Submission was so as the Award be made c. ready to be delivered to the Parties or to such of them who shall desire it the Defendant must desire the Award and plead the matter specially and the Plaintiff need not aver that it was ready to be delivered 330 Assent See Agreement Assets Reversion in Fee Expectant upon an Estate Tail is not Assets but when it comes into possession then and not before 't is Assets 257 Assignment See Privity of Contract 2. Executor of a Lessee for years shall be liable to an Action of Debt for Rent incurr'd after an assignment of the Term for the privity of Contract of the Testator is not determined by his Death but his Executor shall be charged with his Contracts so long as he hath Assets 326 Assizes The Method of arraigning an Assize the Title must be set forth in it 273 Attornment See Bargain and Sale Ejectment of a Manor parcel in Rents and parcel in Services the Attornment of the Tenants must be proved 36 Averment See Devise 4 The consideration of a Duty ought to be precisely alledged as in an Action on the Case for a Duty to be paid for weighing Goods it must be averred that the Goods were such which are usually sold by weight 162 2. The nature of an Averment is to reduce a thing to a certainty which was incertain before 216 3. Where it may be made against the express words of a Condition 217 4. Not allowed to be made against a Record 305 B. Bail IT was demised in a Scandalum Magnatum 4 2. Writ of Error pending in the Exchequer-Chamber the principal in the Action rendred himself the Bail are discharged 87 3. Scire Facias against Bail upon a Writ of Error who plead that the Principal rendred himself before Judgment 't is not good for the Bail are liable not only to render the Body but to pay the Debt ibid. 4. Proceedings were staied by Injunction above two Terms after the Bail was put in and before the Declaration delivered which was pleaded to a Scire Facias brought against them but held not good 274 Bankrupts An Inn-keeper is not within the Statutes of Bankrupcy 327 2. 'T is not actionable to call a Man Bankrupt unless it be laid that he was a Trader at the time of the words spoken 329 3. Inn-keeper buys and sells under a Restraint of Justices and Stewards of Leets which though for a Livelihood yet cannot be a Bankrupt 329 4. Whether a Farmer or Master of a Boarding-School be within the Statutes 330 Baretry Difference between Baretry and Maintenance 97 2. 'T is not Baretry to arrest a Man without a cause ibid. 4. If one design to oppress and to recover his own right 't is Baretry 98 5. Mony may be laid out to recover the just right of a poor man and no Baretry ibid. 6. But mony may not be expended to promote and stir up Suits ibid. Barbadoes It was gotten by Conquest and therefore to be governed by what Law the King willeth 161 Bargain and Sale What words by construction of Law shall amount to a Bargain and Sale to make the Reversion pass with the Rent without Attornment 237 Baron and Feme See Slander 7 Administrator 9 11 Sci. Fa. 7 1. Whether Sci. Fa. will lie against the Husband alone after the death of the Wife upon a Judgment had against her Dum sola 186 2. If a Judgment is recovered against her while sole then she marries and dies the Husband is not chargeable unless had likewise against him during the Coverture ibid. 3. A Debt is due to her whilst sole she marries and dies before 't is recovered it shall not go to the Husband by virtue of the marriage but he may have it as Administrator to his Wife ibid. 4. Judgment is obtained against her whilst sole she marries and a Sci. Fa. is brought against Husband and Wife and Judgment quod habeat executionem the Wife dies a Scire Fa. may be brought against the Husband alone 189 5. The Recovery upon a Sci. fa. is against both and is therefore joynt against both 188 6. Husband may have Execution of a Judgment recovered by him and his Wife after the Death of his Wife without a Sci. fa. 189 7. Devastavit against both the Wife being an Executrix and Judgment that the Plaintiff have Execution de bonis propriis the Wife dies the Goods of the Husband are liable ibid. 8. A Woman who had a Term for years married the Rent is arrear she died the Husband shall be liable because by the Marriage he is entituled to the Profits of the Land ibid. 9. Feme Covert Copy-holder her Husband made a Lease for years without Licence of the Lord 't is a Forfeiture during the Coverture 222 9. Feme Covert Heir to a Copyhold Estate her Husband after three Proclamations will not be admitted 't is a Forfeiture during Coverture 226 10. The Husband hath a Lease in Right of his Wife who was an Executrix and he grnats all his Right and title therein the Right which he had by his Wife passeth 278 12. A. Feme Sole had a Lease and Married then Husband and Wife Surrender in consideration of a new Lease to be granted to the Wife and to her Sons the Estate vests immediately in her without the assent of her Husband for the Law intends it her Estate till he dissassent 300 13. Feme Covert and another joint-Tenant for Life she and the Husband Lease their Moiety reserving a Rent during Life and the Life of her Partner the Wife died 't is a good Lease against the Surviving joint-Tenant till disagreement 300 14. The Husband made a Feoffment in Fee to the use of himself and Wife and to the Heirs of the Survivor he afterwards made another Feoffment of the same Lands and died the Wife entred but the Fee was not vested in her by the first Conveyance because the contingent right was destroyed by the last 310 Barr. Recovery in a personal Action is a Barr to an Action of the like nature where the same Evidence supporteth both Actions 2 Judgment in Trespass is no Barr to an Action of Detinue 2 Bill of Exchange The Drawer and Endorsers are all liable to payment but if Recovery be against one 't is a good Bar to an Action which may be brought against the rest 86 By-Law See Corporation 12. Trade 8. Where 't is too general and where not 193 C. Carrier See Pleading 11. Certainty See Custom Grants Certiorari
An Administrator pleaded a Judgment in Bar to an Action of Debt for 100 l. brought against him and that he had not Assets praeterquam bona non attingen to 5 l. but did not shew the certain value of the Goods and yet held good ibid. 3. A Judgment upon a simple Contract may be pleaded in Barr to an Action of Debt upon a Bond 115 4. A Possession where 't is only an Inducement to a Plea and not Substance the Defendant may justifie upon such a possession against a Wrong-doer 132 5. Where a special Justification is to an Action of Assault and false Imprisonment the cause of Commitment must be set forth in the Plea 160 6. Where the defence consists in matter of Law the Defendant may plead specially but when 't is Fact he must plead the geneal Issue 166 7. Where special matter which might be given in Evidence at the Trial and which amounts to no more than the general Issue may be pleaded ibid. 8. When a Man is brought into Court by Capias he ought to plead instanter because he hath given delay to the Court 215 9. So where he appears upon Recognizance or in propria persona or is in Custody for any Misdemeanour he ought to plead instanter ibid. 10. In Covenant to pay so much Mony to the Plaintiff or his Assigns as should be drawn upon the Defendant by Bill of Exchange he pleaded that the Plaintiff secundum legem mercatoriam did assign the Mony to be paid c. it ought to have been secundum consuetudinem mercatoriam 226 227 11. If an Action is brought against an Inn-keeper or Common Carrier the Declaration must be secundum legem consuetudinem Angliae 227 12. In Trespass the Plaintiff prescribed as to the Freehold and alledged a Custom in the Copyholders to have solam separalem pasturam c. whether he could make a joynt Title in the same Declaration by virtue of a prescription and Custom 250 13. If the Plea is double the Plaintiff ought to demurr 251 14. The Condition of a Bond was to acquit discharge and save harmless Non damnificatus generally is not a good Plea without shewing how acquitted and discharged 252 15. Mutuatus for 400 l. the Defendant pleaded an Attainder of Treason in Abatement the Plaintiff replied that after the Attainder and before the Action he was pardoned c. and concludes unde petit Judicium dampna sua for this cause Replication was held ill 281 Pledges See Replevin Replevin in an inferior Court by Pleint removed in B. R. the Plaintiff was nonsuited and a Sci. Fac. brought against his Pledges and held good 58 2. There are no Pledges of Returno Habend ' at the Common Law the Sheriff was not obliged to take Pledges in a Replevin by Plaint 75 Poor A Man had 5 l. to remove out of one Parish into another who gave Bond to repay it if he returned within forty days he stayed there so long and it was held a good Settlement 67 2. A Note in writing must now be left pursuant to the Statute to make a Settlement 247 Possession 'T is sufficient to maintain an Action against a Wrong-doer 48 Prerogative Whether a Lease was made pursuant to a Power in a Proviso to make Leases for three Lives or 21 years or for any Term upon three Lives the Lease made was for 99 years determinable upon three Lives 268 269 Power In granting of Letters Patents of the sole printing exclusive of all others 76 129 2. Where no individual person can claim a Right or Property it must be vested in the King by Law 76 3. Whether the King hath a Prerogative to restrain Trade to a particular number of Men in particular places 127 4. He may command his Subjects to return out of a Foreign Nation ibid. 5. He may regulate Trade by Letters Patents Prescription See Common 2. Pleading 12. For a way he may set forth his Estate without shewing how he came by it 52 2. Where it cannot be by a Que Estate to have Retorna Brevium 200 3. Where it may be to hold Pleas Leets and Hundreds without matter of Record 201 4. For all the Tenants of a Mannor to fowl in a Free Warren this Prescription is not too large it might not be good upon a Demurrer but 't is otherwise after a Verdict 246 5. For a Profit apprender in alieno solo the Tenants of a Mannor may prescribe by a Que estate exclusive of the Lord ibid. 6. There must be a certain and permanent Interest abiding in some person to maintain a Prescription and therefore it will not lie ratione commorantiae 290 7. To have Common sans numbre is good but ad libitum suum which is almost the same thing is void ibid. 8. It may be joyned with a Custom in the same Declaration 251 9. Where 't is laid in a discharge as to be exempted from Toll or for an easment as for a Way to a Church not only a particular person but the Inhabitants of a whole Vill may prescribe but where it relates to the Profit or Interest in the Land it self 't is not so 292 Presentment In a Court Leet which concerns the person and not the Freehold whether traversable 137 138 Privity of Contract See Local Action 4. Action against an Administratrix of a Term for Rent incurred after the Assignment of the Lease the Privity of Contract of the Intestate was not determined by his death but Administratrix shall be charged with his Contracts as long as she hath Assets 326 'T is not gone either by an Assignment of the Term or death of the Lessor neither is it transferred to the Assignee by the Statute of H. 8. for that Statute only annexeth such Covenants which concern the Land with the Reversion 337 338 Proof See Prohibition Prohibition Not to be granted because a Temporal Loss may ensue 67 2. Where some words are actionable at Law and some punishable in the Spiritual Court a Prohibition shall be granted for otherwise it would be a double vexation 74 3. Libel causa jactationis maritagii the Suggestion for a Prohibition was that he was indicted at the Old Bayly for marrying two Wives that he was convicted in a Court of that Offence which had a proper Jurisdiction c. and a Prohibition was granted 164 4. A person lived in one Diocess and occupied Lands in another where he was taxed towards the finding of Bells for that Church for which a Suit was commenced in the Bishop's Court where the Lands were and he suggested the Statute of H. 8. that no Man shall be cited out of his Diocess except for some Spiritual Cause neglected to be done there and a Prohibition was granted for this was not a Spiritual Cause neglected to be done because Church Ornaments are a personal Charge upon the Inhabitants and not upon the Land Owners who dwell else where but the repairing of the Church is a real Charge upon
the Land 211 5. Not granted for Mariners Wages 244 6. Libel for a Tax upon the Parishioners for not repairing of their Church who suggest that they had a Chappel of Ease in the same Parish the Prohibition was denied for of common right they ought to repair the Mother Church 264 7. Proof of Matter of Fact by one Witness denied to be allowed in the Spiritual Court is a good cause for a Prohibition 284 8. Where the Release of a Legacy offered to be proved by one Witness was denied in the Spiritual Court ibid. 9. Proof of Payment or Subtraction of Tythes denied and a Prohibition granted ibid. 10. Whether a Prohibition ought to be allowed after Sentence an Appeal being then the more proper remedy 284 Property See Interest Q. Quorum MUst be one Justice of the Peace of the Quorum otherwise cannot be a Sessions 14 152 Quantum meruit Will lie for Rent reserved upon a real Contract where the Sum is not certain but if a Sum in gross is reserved then Debt must be brought 73 R. Record ERror shall not be assigned against the Essence of a Record 141 Recovery Common Reversed without a Scire Facias to the Tertenants but it seems not to be good 119 2. For there must be a Scire Facias against the Heir and Tertenants when a Writ of Error is brought to reverse it 274 Relation Where an Estate shall pass by Relation where not 299 300 Release Of a Legacy by one Executor and also of all Actions Suits and Demands whatsoever those general words which follow are tied up to the Legacy and release nothing else 277 2. Of a Demand will not discharge a growing Rent 278 3. A Receipt was given for 10 l. in which there was a Release of all Actions Debts Duties and Demands nothing is released but the 10 l. 277 4. Judgment against four Defendants who all joyned in a Writ of Error and the Plaintiff pleaded a Release of Errors by one it shall not discharge the rest of a personal thing but if there had been four Plaintiffs to recover the Release or death of one is a Barr to all 109 135 249 5. A Release of all Actions will discharge an Award of Execution upon a Scieri Facias 185 187 6. Of all Actions and Demands doth not discharge a Legacy it must be by particular words 279 7. One of the Defendants who made Conusance released the Plaintiff after the taking of the Cattle this was held void upon a Demurrer for he had no Demand or Suit against the Plaintiff having distrained in the right of another ibid. Remainder See Entry 3. Fines levied 4. Must take place eo instanti the particular Estate is determined or else it can never arise 309 2. By the Conveyance of the Reversion in Fee to him who had the Estate for Life before the Birth of a Son the particular Estate is merged and all contingent Remainders are thereby destroyed 311 Replevin Where 't is brought by Writ the Sheriff cannot make deliverance without the taking of Pledges de prosequendo retorn ' Habend ' 35 Replication Where the Plaintiff confesseth and avoideth he ought not to traverse for that would make his Replication double 318 Request When a thing is to be done upon Request the time when the person requires it to be done is the time of the performance 295 Reservation Of a Rent upon a Lease for three years payable at Michaelmas and Lady-Day Debt was brought for 2 years without shewing at which of the Feasts it was due 't is good after Verdict but ill upon a Demurrer 70 Resignation See Abeiance To the Ordinary and Patron presented 'ts void if the Ordinary did not accept the Resignation 297 Reversion See Bargain and Sale Surrender 2. Tenant in Tail who had likewise the Reversion in Fee if he acknowledge a Judgment the Reversion may be extended 256 2. But a Reversion in Fee expectant upon an Estate Tail is not Assets until it comes into possession 257 3. By what words a Reversion in Fee passeth in a Will 228 Revocation A Will shall not be revoked by doubtful words 206 2. It might be revoked by Word without Writing before the Statute of Frauds 207 3. Before that Statute a Will might be revoked by a subsequent Will which was void in it self yet good to revoke the former 207 218 4. A subsequent Will which doth not appear shall not be any Revocation of a written Will which doth appear 204 205 206 5. Whether a subsequent Will which is void in it self may revoke another since the Statute of Frauds 218 6. Such a Will must be good in all circumstances to revoke a former 260 261 Riot See Information Robbery The Hundred was sued and it did not appear that the Parish where the Fact was laid to be done was in the Hundred or that it was done upon the High way or in the day time this was helped after Verdict 258 2. A Servant delivered Mony to a Quaker to carry home for his Master they were both robbed viz. the Servant of 26 s. and the Quaker of 106 l. the Servant made Oath of the Robbery and the Quaker refused the Master brought the Action it doth not lie for him 287 288 S. Scire Facias See Bail 3 4. Baron and Feme 1 4 5. Iudgment 2. Pledges 1. Recovery MUst be to the Tertenants before the Common Recovery shall be reversed by Writ of Error 119 2. Scieri Facias quare Executionem non habet recites the first Judgment but prays no new thing only to have Execution upon that Judgment 187 3. 'T is not an original but a judicial Writ and depends upon the first Judgment 187 4. 'T is suspended by Writ of Error and if the original Judgment is reversed that is so also ibid. 5. Debt will lie upon a Judgment had on a Scire Facias 188 189 6. A Judgment upon a Scire Facias is a distinct Action from the original cause 189 7. Judgment in Dower and a Writ of Enquiry of Damages the Woman marries and dies before the Writ of Enquiry executed the Husband administred and brought a Scire Facias upon the Judgment whether it lieth or not 281 Serjeants at Law See Iudges Surplusage See Inquisition Steward See Court Supersedeas See Parliament Surrender See Assent 1 2. Where it may be pleaded without an acceptance 297 2. No man can take it but he who hath the immediate Reversion 299 3. If pleaded without an Acceptance 't is aided after Verdict which shews 'tis no Substance 301 4. By one Non compos mentis 't is void ab initio 303 T. Tail DEvise to D. for Life the Remainder to her first Son and the Heirs of the Body of such first Son endorsed thus viz. Memorandum that D. shall not alien from the Heirs Males of her Body she had a Son who had Issue a Daughter 't is not an Estate Tail Male for the Memorandum shall not alter the Limitation in the Will
IT lies to remove Causes and Orders from an inferior Jurisdiction where 't is not prohibited in express words by any Statute 95 2. Will not lie to the Grand Sessions nor to a County Palatine to remove Civil Causes quaere whether it lies to the Royal Franchise of Ely 230 Charter Usage shall expound ancient Charters 9 2 The Common Law doth operate with it ibid. 3. One Clause of a Charter may expound another 10 4. A Charter which establishes a Corporation must provide for a new Election in order to a Succession otherwise the Common Law will not help 13 Church See Prohibition Commitment By the Lord Chancellor and several others Dominos Concilii for a Misdemeanour whether it should not be Dominos in Concilio 213 2. Of a Peer for a Misdemeanour which amounts to a Breach of the Peace for which Sureties are to be given 214 3. When a person is brought in by a Capias for any offence he ought to plead instanter 215 Common and Commoner See Ioytenancy 4 Ioynt Action 7 Prescription 7 A Common cannot pass without Deed and if the Plaintiff sheweth a Que Estate he must produce the Deed 52 2. If a Prescription is made for a Common and doth not say for Cattle Levant and Couchant 't is not good 162 246 3. But this fault is cured by a Verdict 162 Confederacy See Indictment Condition See Infant 2. Notice 2 4. A bare denial without doing any more is no Breach of the Condition 31 2. How it differs from a Limitation 32 3. To restrain Marriage to the consent of particular persons is void ibid. 4. Where 't is of two parts in the disjunctive and both possible at the time of the Bond given and one becomes impossible afterwards by the Act of God the Obligor is not bound to perform the other part for the Condition being made for his benefit shall be taken very beneficially for him who had election to perform either part 233 5. When the Condition is but of one part 't is otherwise as if A. promise B. that if C. do not appear such a day at Westminster he will pay 20 s. C. died before the day the Mony must be paid 234 6. Condition was to pay Rent at Michaelmas or Lady-day during the Life of a Woman or within thirty days after she died after the Feast but within the thirty days the payment which was due at the Feast was discharged thereby ibid. 7. To save harmless Non damnificatus generally is a good Plea but if it be to save harmless acquit and discharge then 't is not good without shewing how acquitted and discharged 252 Confederacy See Agreement Consideration See Action on the Case Construction Where it shall be made of an Act of Parliament according to the intent of the Law-makers 33 2. Where it shall be made of an entire Sentence so as the intent of the Law may appear 220 3. Where particular words are in the first part of a Sentence and general words follow both shall stand 278 279 Contract Where an Agreement is entire to do or perform a thing for a certain Sum it shall not be apportioned pro rata for the performance of part 153 2. There must be a recompence of each side to make the Contract good 237 Copyhold and Copyholders See Baron and Feme 8 9. Lord may seize the Land of a Copyholder till a Fine is paid 222 2. A Man by Custom may assign a person to take the Profits of a Copyhold Estate during the Minority of an Infant without rendring an accompt when he comes of Age ibid. Corporation See Charter 4. In all proceedings which concern a Corporation it must be alledged that there is one and how erected whether by Grant or Prescription 6 2. Mayor hath no more Power than an Alderman in the Coporation where he is Mayor 9 3. Is not of the Quorum for electing of an Alderman 10 4. The Mayor is named in the Grant as part of the Name of the Corporation and is not of the Quorum without naming him to be so 9 10 5. He is a Mayor in respect of Reverence but not of Power 11 6. At the Common Law neither his Name or Office require his presence at the choosing of an Alderman 11 14 7. He cannot act eo nomine but by the express Power given in the Charter 12 8. Elections of Officers of a Corporation must be free 21 9. Mayor of a Corporation is no Officer at the Common Law 12 10. Original of Corporation was preservation of Trade ibid. 11. Corporation by Charter without setting forth their Duty or Office hath no Power ibid. 12. A Company in London made a By-Law that none of them should buy such a Commodity within 24 Miles of London but two Men 't is too large to bind at such a distance out of their Jurisdiction 159 Costs See Amendment 3. Trespass for breaking of a Close and impounding of Cattel and Damages given under 40 s. the Plaintiff shall have his Costs 39 2. Amendment after a Writ of Error brought Costs must be paid 113 Covenant See Local Action Where a thing is lawful at the time of the Covenant made and afterterwards prohibited by Law yet the Covenant is binding 39 2. To find Meat Drink and other Necessaries the Breach was assigned in not finding Meat Drink alia necessaria and entire Damages though this Breach was too general yet 't is good for it may be as general as the Covenant 69 3. There must be such certainty in it that if the Defendant should be sued again he may plead the former Recovery in Bar ibid. 4. Need not so much certainty in assigning a Breach upon a Covenant as upon a Bond for performance of Covenants ibid. 5. For quiet enjoyment the Breach was that a Stranger habens jus titulum and doth not say what Title for it may be under the Plaintiff himself therefore not well assigned 135 6. To make an Assignment according to an Agreement between the Partis as Council should direct whether the Council of the Plaintiff or Defendant should advise 192 7. Give grant and confirm are words at the Common Law where they shall be taken to amount to a Covenant to stand seized 237 Court Cause not to be removed out of an inferiour Court unless the Habeas Corpus is delivered to the Steward before Issue or Demurrer joyned so as 't is joyned within six Weeks after Arrest or Appearance 85 2. If the Cause is tried in an inferior Court the Steward not being an Utter Barister an Attachment shall go ibid. 3. Amerciament in a Court Leet is a Duty vested in the Lord for which he may distrain 138 4. Presentment in a Court Leet is the proper remedy when a Man is disturbed in a common Passage or Way 294 Custom See Admittance Infant 10. Prescription 8. Pleading 12. Must have nothing to support it but Usuage 133 2. 'T is made of repeated Acts ibid. 3. Must be very