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A64510 The third part of Modern reports being a collection of several special cases in the Court of Kings-Bench: in the last years of the reign of K. Charles II. In the reign of King James II. And in the two first years of his present Majesty. Together with the resolutions and judgments thereupon. None of these cases ever printed before. Carefully collected by a learned hand.; Reports. 1660-1726. Vol.3. England. Court of King's Bench. 1700 (1700) Wing T911; ESTC R222186 312,709 406

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Dorothy Margery survived and is since dead The Question was whether upon this Reservation the Beast of any person being upon the Land may be distreined for an Heriot Mr. Pollexfen argued that it could not because the words in the Reservation ought to be taken very strictly and not to be carryed farther than the plain expression Where words are doubtful they have been always expounded against the Lessor Cro. Eliz. 217. 2 Roll. Abr. 448. Latch 99. as if a Lease be made for years reserving a Rent durante termino to the Lessor his Executors or Assigns the Lessor dies his Heir shall not have the Rent because 't is reserved to the Executors But here is no room for any doubt upon these words for if a Lease for years be made in which there is a Covenant that the Lessee shall pay the Rent without any other words this determines upon the death of the Lessee So where a Lease was made for 99 years if A. B. C. 2 Rol. Abr. 451. Hetley 58. Cro. Car. 314. or any of them should so long live reserving Rent to him and his Executors and also at or upon the death of either his or their best Beast in the name of an Heriot provided that if B. or C. die living A. no Heriot shall be paid after their deaths A. assigns his Term and the Beast of the Assignee was taken for an Heriot but adjudged that it could not for the words his or their shall not be carried farther than to the persons named in the Limitation The Books that affirm that a Man may seize for an Heriot Service cannot be brought as Authorities in this Case because they are all upon Tenures between Lord and Tenant and not upon particular Reservations as this is The old Books say that if a Tenant by Fealty and Heriot-Service Broke tit Heriot 2. made his Executor and died that the Lord might seize the best Beast of his Tenant in the Hands of the Executor and if he could not find any Beast then he might distrain the Executor Plo. Com. 95. and the reason of this seizure was because immediately upon the death of the Tenant a Property was vested in the Lord but it was held always unreasonable to put him to distrain when he might seise And it is now held that for Heriot-Service the Lord may either distrain or seise but then if he makes a seisure Cro. Car. 260. Jones 300. it must be the very Beast of the Tenant but if he distrain he may take any persons Cattle upon the Land So that admitting this to be Law yet it proves nothing to this matter because such Services being by Tenure shall not be extended to those which are created within time of memory upon particular reservations for by those ancient Tenures the Lords had many Priviledges which cannot be upon Reservations Besides the seisures in those Cases were by the Lords who continued so to be at the very time of the seisure but in our Case the Lease is determined by the death of the last Life so the Priviledge is lost and then it must stand upon the particular words in the Deed. Sed adjornatur into the Exchequer Chamber the Iudges being divided in Opinion Vid. 2 Sand. 165. Shipley versus Chappel Pasch 3 Jac. Rot. 404. THE Plaintiff Shipley as Administrator of Hannah his Wife Condition of two parts in the disjunctive and one part becomes impossible to be done yet the other must be performed according to the subsequent matter brought an Action of Debt upon a Bond against Chappel an Attorny for 140 l. The Defendant craved Dyer of the Condition which was Viz. Whereas Hannah Goddard who was Wife to the Plaintiff and Thomas Chappel of Greys-Inn in the County of Middlesex are Coparceners according to the Common-Law of one House with the Appurtenances in Sheffeild in the possession of William White and whereas the said Hannah Goddard hath paid unto Thomas Chappel the Father for the use of his Son the Sum of 72 l. in consideration that the said Thomas Chappel the Son when he attains the Age of 21 years which will be about Midsomer next do by good Conveyance in the Law at the costs and charges of the said Hannah Goddard convey his said moiety of the said House with the Appurtenances unto her and her Heirs Now the Condition of this Obligation is such That if the said Thomas Chappel the Son shall at the Age of 21 years convey his said moiety of the said House or otherwise if the said Thomas Chappel the Father his Heirs Executors or Administrators shall pay or cause to be paid the sum of 72 l. with lawful Interest for the same unto the said Hannah Goddard her Executors Administrators or Assigns that then this Obligation to be void Then he pleaded that his Son Thomas Chappel was Coparcener with Hannah Goddard as Co-heires of Elizabeth Goddard that Thomas came of Age and that before that time Hannah died without Issue The Plaintiff replied that true it is that before Thomas Chappel the Son came of Age the said Hannah died without Issue of her Body that Elizabeth Goddard before the making of the said Bond died seised in Fee of the said Messuage but that she first married with one Malm Stacy by whom she had Issue Lydia that Malm her Husband died and Elizabeth married John Goddard by whom he had Issue Hannah their only Daughter and Heir that John Goddard died and that Lydia Stacy married the Defendant Thomas Chappel by whom he had Issue Thomas Chappel his Son that Lydia died in the life-time of Elizabeth that Thomas Chappel hath not paid the 72 l. to Hannah in her life time or to John Shipley after her death The Defendant demurred and the Plaintiff joyned in Demurrer The Question was since the word Heirs in the Condition being a word of Limitation and not of any designation of the person whether the death of Hannah Goddard before Chappel the Son came of Age and who was to make the Conveyance shall excuse the Defendant from the payment of the Mony Those who argued for the Defendant 5 Co. 21. b. chiefly relied upon Laughter's Case which was viz. Laughter and Rainsford were bound that if R. after marriage with G. together with the said G. shall sell a Messuage c. if then R. do or shall in his life-time purchase for the said G. and her Heirs and Assigns Lands of as good value as the Mony by him received by the said Sale or leave her as much Mony at his decease then c. G. died R. did not purchase Lands of an equal value with that he sold and upon Demurrer it was held that where a Condition consisteth of two parts in the disjunctive and both possible at the time of the Bond made and afterwards one is become impossible by the act of God there the Obligor is not bound to perform the other part because the Condition is made for
As the Statute of Westm W. 2. c. 11. 2. which gives an Action of Debt against a Goaler for an Escape and that per breve yet by the Equity thereof it hath been adjudged that a Bill of Debt will lie For the Statute of R. 1 R. 2. c. 12. 2. gives the like Action against the Warden of the Fleet for the Escape of a Prisoner in Execution which by Construction hath been adjudged to extend to all Goalers and Sheriffs 1 Sand. 38. If this Statute should not be expounded according to Equity then if the Plaintiff himself should be beyond Sea six years after the cause of Action and die there his Executor or Administrator cannot sue for a Debt Curia This Case is out of the Equity of the Statute which provides a remedy when the Plaintiff is beyond Sea but not when the Defendant is there it was never intended to make any Provision for him since the Plaintiff might file an Original and sue him to the Outlawry But Iustice Dolben making some doubt Adjornarur DE Term. Sancti Mich. Anno 2 Gulielmi Mariae Regis Reginae in Banco Regis 1690. Hobbs qui tam c. versus Young AN Information was brought upon the Statute of the 5th of Eliz. for exercising the Trade of a Cloth-Worker Employing Workmen in a Man 's own House he being not Apprentice to the Trade is an exercising that Trade within the Statute 5 Eliz. 4. not being an Apprentice to the same and likewise for setting people to work at that Trade not having served an Apprentiship to it Vpon Not Guilty pleaded the Iury found a special Verdict to this purpose Viz. That the Defendant was a Merchant who Exported Cloath to Turkey and that for the space of a Month he had emploied Men in his House in the Trade of a Cloath-Worker which Men had been educated in the said Mystery for the space of 7 years that he provided Materials for them and paid them weekly Wages but that he himself was not an Apprentice to the said Trade That it was a Trade at the time of the making of the Statute c. The Question was Whether this should be accounted exercising of a Trade within the meaning of the Statute or no Those who argued for the Plaintiff said that true it is any Man might exercise what Trade he thought fit at the Common Law but this confusion had been remedied by several Statutes The first is the Statute of Edw. 3. 37 E. 3. c. 5. that Merchants shall not engross Goods to enhance the Prices nor use but one sort of Merchandise Afterwards in the 38th of Edw. 3. 38 E. 3. c. 2. the former Statute was repealed and liberty given to Merchants only to use what Merchandise they would Then comes the Statute of Queen Elizabeth and the Remedies intended by that and the former Acts were Viz. 1. The restraining of ignorant pretenders to Trade 2. To make a distinction of Trades and to fit them to different ranks of Men. 3. To encourage those who had undergone an Apprentiship by prohibiting others to exercise their Trades The words of this latter Statute are That no person other than such who do now lawfully use or exercise any Art or Mystery or Manual Occupation shall exercise any Craft Mystery or Manual Occupation now used within this Realm except he shall be brought up therein seven years at the least as an Apprentice nor set any person on work in such Mystery c. being not a Workman at the time of making the Statute except he shall have been an Apprentice as aforesaid or else having served as an Apprentice shall become a Journy-Man or hired by the Year under the pain of 40 s. per Month. 'T is plain by this Law that he who cannot use a Mystery himself is prohibited to employ other Men in that Trade for if this should be allowed then the care which hath been taken to keep up Mysteries by erecting Guilds and Fraternities would signifie little In the Case of Morstyn and Nightingale 3 Jac. 2. upon this Statute it was proved that the Defendant emploied none but Pinmakers in that Trade yet not having served an Apprentiship himself the Plaintiff had a Verdict It was insisted on the Defendants behalf that as this Offence is laid in the Information E contra it was not within the first branch of that Clause in the Statute for no Man will say that when the Defendant sets other persons to work such employing them was an exercising the Trade within the first branch of that Paragraph Neither is it within the second Branch the meaning whereof is that no person shall be employed but such as have served an Apprenticeship c. Now the person who sets such People to work is not punishable by this Law but the Men themselves who do work not being qualified and those are not punishable in this Case because the Verdict hath found that they were Apprentices and had served seven years to the Trade 'T is not material to say that the Men thus employed by the Defendant in this Trade are his Servants and that by their working the Company of Clothworkers may be damnified for the Act is not restrained to particular Companies but taketh care in general that the work should be well done No Man will say that a Merchant is within this Statute for the Preamble it self shews 'tis for the Reformation of Trades and Manual Occupations so that as a Merchant is not within the Letter neither is he within the meaning of the Law because he is of a superiour Order and Degree of Men. The chief design therefore of this Law being that unskilful Men should not employ themselves in Trades and the Defendant having set none to work but such who were of that Trade and Artists in it the meaning of the Act is fully pursued and no injury is done to any person Besides it doth not appear by this Verdict that any thing was done by the Defendant but in his own Family and probably it might be for their use and then 't is no offence But if it is a Crime in the Defendant then all the Petty-Chapmen in England are within this Statute for they use several goods belonging to particular Trades and few of them have been Apprentices to any Trade It was said by some of the Council who now argued this Case that they had formerly attended my Lord Hales upon the like matter whose Opinion was that such Petty Chapmen were not within the Statute but that they were warranted by the Custom of those places where they lived Afterwards in Trinity-Term 3 Gulielmi Mariae Iudgment was given for the Plaintiff by the Opinion of three Iudges The Questions are two 1. Whether this is a setting up of a Trade within the express words of the Statute 2. Whether the working of these Cloths in the Defendant's House will be using a Trade c. It cannot be denied but
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