were Six years Arrear of a certain Salary belonging to the said Office according to the Agreement aforesaid due and payable to the Plaintiff which he the Plaintiff had not received and the Defendant had not paid unto him licet saepius requisitus and so the Defendant had broke his Covenant The Defendant pleaded in Bar That he had from the time of the Agreement aforesaid to the time of the Writ brought permitted the Plaintiff to receive yearly the Profits of the said Office according to the said Agreement absque hoc that the Defendant had or received any part of the Profits of the said Office To this the Plaintiff Demurred and shewed for the Cause of Demurrer that the Defendant had traversed Matter not alledged And upon the first Argument Judgment was given for the Plaintiff by the whole Court that the Traverse was not good And the Court held that upon this Agreement the Defendant was not bound to pay the Money grown due for the Profits of the Office to the Plaintiff but was only restrained from intermedling with them and to leave them to be received by the Plaintiff Bush versus Buckingham Bedf. ss Debt upon a Bond. THOMAS Buckingam nuper de Shenly in Com' Bucks Yeoman alias dict' Thomam Buckingham de Houghton Reg ' in Com' Bedford ' Yeoman sum ' fuit ad respondend ' Mariae Bush Vid ' de placito qd ' reddat ei centum libras quas ei debet injuste detinet c. Et unde eadem Maria per Robertum Jenkin Attorn ' suum dic ' qd ' cum praedictus Tho' undecimo die Maii Anno Dom ' milliesimo sexcentesimo octogesimo sexto apud Luton ' per quoddam scriptum suum obligatorium concessisset se teneri praefat ' Mariae in praedictis centum libris solvend ' eidem Mariae cum inde requisit fuisset praedictus tamen Thomas licet sepius requisit ' praedictam centum libras eidem Mariae nondum reddidit Set ill ' ei hucufque reddere contradixit adhuc contradic ' unde dic ' qd ' deteriorat ' est dampnum habet ad valenc ' viginti librarum Et inde produc ' Sectam Profert in Curia scriptum c. Et profert hic in Cur ' scriptum praedictum qd ' debitum praedictum in forma praed ' testatur cujus dat' est die anno supradict c. Defendant craves Oyer of the Condition Et praedictus Thomas per Humfrid ' Taylor Attorn suum ven ' defend ' vim injur ' quando c. Et pet ' audit ' scripti praedicti ei legitur c. pet ' eciam audit ' conditionis ejusdem scripti ei legitur in hec verba The Condition of this Obligation is such that if the above bound Thomas Buckingham and William Holk or either of them they or either of their Heirs Executors Administrators or Assigns or any of them do or shall well and truly pay or cause to be paid unto the abovenamed Mary Bush her Executors Administrators or Assigns or any of them the full and just sum of fifty two pounds and ten shillings of good and lawful Many of England in or upon the twelfth day of November next ensuing the date hereof without fraud or further delay That then this present Obligation to be void and no effect or else to remain in full force and vertue And pleads the Statute of Usury Quibus lectis audit ' idem Thomas dic ' qd ' ipse de debito praedict virtute scripti praedicti onerari non debet quia dic ' qd ' per quendam Actum in Parliament ' Dom ' Caroli Secundi nuper Reg ' Angliae inchoat ' tent ' apud Westm ' in Com' Midd ' vicesimo quinto die Aprilis Anno Regni sui duodecimo edit ' provis inter alia inactitat ' fuit Authoritat ' ejusdem Parliament ' qd ' nulla persona sive personae quaecunque ab post vicesimum nonum diem Septembris Anno Dom ' millesimo sexcentesimo sexagesimo super aliquem contractum ab post praedictum vicesimum nonum diem Septembris caperet seu caperent direct ' vel indirect ' pro accommodatione Anglicè leave aliquorum denar ' mercimoniorum merchandizarum vel al commoditat ' quorumcunque ultra valor ' sex librarum pro differend ' Anglicè forbearance centum librarum pro Anno sic secundumistam ratam pro majori vel minori summa vel pro longiori seu breviori tempore Et qd ' omnes obligationes Anglicè Bonds contract ' assuranc ' quecunque post tempus praedict ' fact ' pro solutione alicujus principal ' summae pecun ' accommodand ' vel convent ' performari super vel pro aliqua usuria Anglicè Vsury super quas vel per quas reservat ' vel capt ' foret ultra ratam sex librarum in centum libris ut praefertur penitus vacuae forent prout per eundem Actum in t ' al' The Usurious Contract plenius liquet praedictus Thomas dic ' qd ' post praedict ' vicesimum nonum diem Septembris in Actu praed ' superius mentionat ' ante confection ' scripti obligat ' praedict ' scilicet praed ' undecimo die Maii An' Dom ' milesimo sexcentesimo octogesimo sexto supradict ' apud Luton praed ' in t ' praefat ' Mariam ipsum Tho' corrupt ' contra form ' Statut ' predict ' agreat ' concordat ' fuit qd ' praed ' Maria accommodaret eidem Thomae quinquagint ' libras eidem Mariae praedict ' duodecimo die Novembris in Conditione praed ' spec ' resolvend ' qd'que praedict ' Thomas pro lucro interesse differendo dando diem solutionis praedict ' quinquaginta librarum per tempus illud solveret praefat ' Mariae summam duarum librarum decem solidorum Qd'que pro securitat ' solutionis tam praedictarum quinquata librarum de principal ' debito praed ' quam praedict ' duarum librarum decem solidorum ipse idem Thomas per ' scriptum suum obligatorium debit ' legis forma conficiend ' deveniret tent ' obligat ' The Bond to be given thereupon praefat ' Mariae in centum libris cum conditione eidem subscript ' pro solutione quinquaginta duarum librarum decem solidorum super praedict ' duodecimum diem Novemb ' tunc prox ' sequen ' idem Thomas ulterius dic ' qd ' in performatione corrupt ' concordiae praedict ' in t ' ipsam Mariam praefat ' Thomam in forma praed ' habit ' fact ' praedict ' Mariae postea scilicet praedict ' undecimo die Maii Anno Dom ' The Mony lent millesimo sexcentesimo octogesimo sexto supradicto apud Luton ' praedict ' accommodavit eidem Thomae quinquaginta libras resolvend ' eidem Mariae praedicto
Action for saying Go tell the black Knave Roberts That I will teach him or any Attorney in England to sue out a Writ against me and he had Judgment for it was as much as to call him Knave Attorney Hill 22 23 Car. 2. Rot. 1426. Methin and the Hundred of Thistleworth AN Action was brought upon the Statute of Winton The Defendants pleaded that they made Hue and Cry and that within 40 Days they took one Dudley which was one of them that did the Robbery and had him in custody The Plaintiff Replied That Dudley was not taken upon their fresh pursuit modo forma And upon this Issue the Jury find a Special Verdict to this effect That the Hundred made Hue and Cry and that Sir Joseph Ash finding Dudley in the presence of Sir Philip Howard a Justice of the Peace of Westminster at his House in Westminster the said Sir Joseph being an Inhabitant in the Hundred of Thistleworth charged Dudley with this Robbery before Sir Philip who promised he should appear at the Sessions at the Old Baily And whether this be such a Taking as is put in Issue they referred to the Iudgment of the Court. Jones for the Plaintiff Argued That in this Case there doth not appear to be any Taking at all but only a Discourse between Sir Joseph Ash and Sir Philip Howard As admitting the Issue were Whether a man were Arrested or no and it should appear upon Evidence that one should come to the Sheriff and declare That he had a Writ against such a man then present and upon this the Sheriff should say I will take his word for his Appearance this clearly could not be taken for an Arrest Again The Issue is Whether he were taken upon the fresh pursuit of the Hundred and it doth not appear by the Verdict that there was any Hue and Cry made this way and it might be ceased before this time But it seems rather that Sir Joseph Ash found him by accident But the Opinion of Hales Chief Justice Twisden Rainsford and Moreton was that Judgment ought to be given for the Defendant For the charging of Dudley with the Robbery in the presence of a Justice of the Peace was clearly a Taking within the Statute For being in the presence which the Law construes to be under the Power or Custody of the Magistrate it would have been vain and impertinent to have laid hold of him and it shall be intented that this was upon Fresh pursuit For when the Verdict refers one Special Point to the Iudgment of the Court all other matters shall be intended And the Chief Justice said That if the Hue and Cry was made towards one part of the County and an Inhabitant of the Hundred apprehended one of the Robbers within another yet this was a Taking within the Statute Hornsey Administrator of Jane Lane versus Dimocke THe Plaintiff as Administrator of Jane Lane brought an Assumpsit and declared that he had formerly deposited such a Sum in the Defendants hands for the use of the Intestate Jane Lane in Consideration whereof the Defendant promised to the Plaintiff that he would pay it her or if she died before 18 years of Age that he would pay it to her Executors And shews that she died before 18 and that he had not paid it to the Plaintiff her Administrator licet saepius requisitus Vpon non Assumpsit a Verdict was for the Plaintiff It was moved in Arrest of Judgment that the Plaintiff brought this Action as Administrator which ought to have been in his own right for the Promise was made to him Sed non allocatur For if a man names himself Executor or Administrator and it apears the Cause of Action is in his own right it shall be well enough and he calling himself Executor c. is but Surplusage But here it seemeth Jane Lane might have brought an Assumpsit because she was the party to whom the Money was to be paid So it is good either way It was further Objected That it was not averred that the Defendant did not pay the Money to Jane Lane during her Life Sed non allocatur For 't is aided by the Verdict As the Chief Justice said a Case was Adjudged where an Assumpsit was brought upon a Promise to pay Money to two or either of them and declared that the Money was not paid to the two and not said or either of them yet Resolved to be good after Verdict Matthewes versus Crosse IN Debt for Rent the Plaintiff Declared That by an Indenture made in the Parish of St. Mary Undershaft London he Let an House to the Defendant situate in parvo Turris monte reserving so much Rent c. The Defendant pleads That before the Rent incurred the Plaintiff entred into a certain Room of the said House apud parvum Turris montem praedict ' and so suspended his Rent upon which it was Demurred And it was shewn for Cause That no place was alledged where the Entry was but said to be at Little Tower-Hill which cannot be intended a Vill. And a Case was cited of an Indictment in this Court of a Fact laid to be done at White-Hall and quashed for want of Place And to this the Court inclined but the Matter was ended by Comprimise ' Anonymus A Prohibition was prayed to a Suit for a Pension in the Ecclesiastical Court surmising that the Lands out of which it was demanded were Monastery Lands which came to the King and that he granted the Lands c. under which Grant the Plaintiff claims and that he Covenanted to discharge the said Lands of all Pensions c. and this upon the Statute of 34 H. 8. cap. 19. which appoints the Suit to be for Pensions in such cases in the Court of Augmentations and not elsewhere But the Court would not grant it until the Letters Patents of Discharge were produced being a matter of Record But where the Surmise is of matter of Fact it is sufficient to suggest it And it was said by the Court That Pensions whether by Prescription or otherwise might be sued for in the Ecclesiastical Court but if by Prescription then there was also Remedy at the Common Law F.N.B. 50. 1 Cro. 675. Davis versus Wright al' HIll 22 23 Car. 2. Rot. 701. In an Assumpsit the Plaintiff declared That his Father gave him by his Will 3 l per annum during his Life and that he was about to Sue for it and that the Defendants being Executors to the Father in Consideration that the Plaintiff would forbear to commence a Suit against him for it promised to pay him The Defendants plead That the Testator was indebted in divers Sums and ultra to pay them he had no Assets To this the Plaintiff demurred for that by this Promise the Defendants have made it their proper Debt But it was said on the other side That if there were no Assets there was no cause for the Plaintiff to have commenced
constant Practice Secondly There was no good Trial for there is an Award of a Venire facias but no Writ certified But this was also Over-ruled for it is the Course of the Assizes not to make out any Writ Thirdly Issue is joyned by the Clerk of Assize which the Court said ought to be for he is Attorney General there Parker versus Welby THe Plaintiff brought an Action upon the Case against the Defendant and Declared that he Sued out a Latitat against a third Person directed to the Defendant being Sheriff who thereupon Arrested him and after let him go at large And then he Returned a Cepi Corpus paratum habuit ubi revera he had not his Body at the Day To this Declaration the Defendant Demurred supposing that no Action would lye for this False Return for the Statute of 23 H. 6. obliges the Sheriff to let to Bail and if he hath not the Body at the Day he is to be amerced But the Court were of Opinion for the Plaintiff For it shall be intended that he let him go without Bail and if he did not he ought to have pleaded the Statute of 23 H. 6. which is a Private Law And at the Common Law a man could not be let at large in such case without a Homine Replegiando Or else he might have pleaded Not Guilty and given the Statute in Evidence And so it is Adjudged in Layton and Gardiner's Case 3 Cro. 460. So Moor placito 996. 2 Cro. 352. and 3 Cro. 624. Where the Defendant pleaded That he let to Bail according to the Statute and the Plaintiff was barred Twisden cited a Case in this Court Paschae 21 Car. 1. Rot. 616. between Franklyn and Andrews where the Plaintiff Declared as in this Case And the Defendant pleaded the Statute and that he let him at large upon Sureties and traversed absque hoc that he returned his Writ Aliter aut alio modo To which the Plaintiff Demurred It was Resolved First That the Sheriff could Return nothing but Cepi Corpus And he was then amerced because he offered to make a Special Return Secondly That where the Sheriff let the parties out to the Bail and he made such Return that it was no False Return and therefore he should not have traversed Absque hoc that he Returned Aliter vel alio modo As in Maintenance where the Defendant Iustifies for that the party could not speak English and therefore he went with him to instruct his Counsel He shall traverse Absque hoc that he maintained Aliter because that he maintained Would not do tho' it be justifiable So in that case the Court ordered it to be Entred upon the Roll that Judgment was given for the Plaintiff quia Traversia fuit mala So here they Ordered it to be Entred because the Defendant did not plead the Statute of 23 H. 6. Hocking versus Matthews AN Action upon the Case was brought for Maliciously Impleading and causing him to be Excommunicated in the Ecclesiastical Court whereby he was taken upon an Excom ' Cap ' and Imprisoned until he got himself absolved The Defendant pleaded Not Guilty and found against him And it was afterwards moved in Arrest of Judgment that the Declaration was not good for no Action will lye for suing a man in the Spiritual Court tho' without cause no more than in Suing in the Temporal Courts For Fitz. N. B. is That a man shall not be punished for bringing the Kings Writs So Hob. Waterer and Freeman's Case And it hath been lately held that no Action will lye for an Indictment of Trespass tho' falso but an Action of the Case will lye for suing in Court Christian for a Temporal Cause But the Court in this Cause gave Judgment for the Plaintiff For tho' in an Action between party and party in the Ecclesiastical Court where if the matter goes for the Defendant he shall have his Costs no Action will lye if the Court hath Iurisdiction Yet where there is a Citation ex Officio and that is prosecuted malicously without ground the Party shall have his Action for in such Suit he can have no Costs And so is Carlion and Mills's Case Adjudged 1 Cro. 291. And this shall be so intended after the Verdict or otherwise the Defendant should have shewed it to be otherwise and Iustified And Rainsford said without Cause shall be understood without any Libel or Legal Proceedings against him Anonymus IN Debt upon an Obligation to perform an Award which was to pay the Rent mentioned in such an Indenture He that pleads performance of this Award needs not set forth the Indenture but refer generally to it But if it be to be paid in such manner and at such times as is expressed in the Indenture then it must be set forth at large The like of an Award of payment of Money given by a Will Wilson versus Armorer THe Case was Argued again this Term by Coleman for the Plaintiff who Argued that the Exception takes the two Closes wholly out of the Grant and that no modification can be annexed to it 3 Cro. 657. and Moor Pl. 747. A Lease was made for certain Lands excepting a Close and Covenants were for quiet Enjoyment of the Premisses The Lessee disturbed the Plaintiffs possession in the Close excepted yet he could not bring a Writ of Co-venant for by the Exception it is as much as if it had been never mentioned and in this Case the Livery being secundum formam Chartae could not work upon these Closes The Case of Hodge and Crosse cited in Hob. 171. was this A man gave Lands to another Habendum to him and his Heirs after the death of the Feoffor and Livery secundum formam Chartae Resolved a void Feoffment and relyed upon the Case in 1 Anderson 129. as full in the Point A Lease of an House excepting a Chamber pro usu suo proprio occupatione It was held that he might assign Weston ê contra This Exception is altogether void for it cannot be for the Life of the Feoffor only Bro. tit Reservation 13. and it shall not except the whole Fee against the Intention of the Parties for then the Ill wording of his Exception should give him above twice as much as otherwise be should have had and it is but one entire Sentence and taking it altogether it must have an effect which the Law doth not admit and is therefore to be wholly rejected As where a man grants his Term after his death the Grant is void Otherwise where he grants his Term habendum after his death for there the last Sentence is rejected Hob. 171. The Case of the Exception of the Chamber is not alike for excepting it for his own use are apt words to give him power to dispose of it at his pleasure Keeling Rainsford and Moreton held the Exception good for the entire Fee Twisden That it was wholly void because one Sentence Plus Postea Sympson versus Quinley
principium inde One of the Lessees died before the Lease for Life determined whereupon the Lessor brings Covenant for the 3 l and sets forth this Matter in the Declaration To which the Defendant Demurred supposing that the 3 l was not to be paid unless the Death had hapned after the Term had commenced And the Court having heard it spoken to divers times by Counsel on both sides by the Opinion of Twisden Rainsford and Moreton Iudgment was given for the Defendant For all the other Reservations but this were expresly post principium termini and Clauses in Companies are to expound one another as it is said in the Earl of Clanrickard's Case in Hobart It is in the nature of a Rent and Reservation which it is not necessary that it should be Annual And in Randall and Scories Case 1 Cro. such a Duty was distrained for and it shall attend the Reversion Rolls 457. And he that hath but an interesse termini is not to pay the Rent reserved for there is no Term nor no Reversion until it commences If A. lets to B. for 10 years and B. redemises to A. for 6 years to commence in futuro in the mean time this works no suspension of either Rent or Condition The Intention of the Parties is to be taken That it should not be paid until then However Reservations are to be taken most strongly against the Reserver As Palmer and Prowses Case cited in Suffeild's Case 10 Co. is The Reversion of a Lease for years was granted for Life reserving certain Rent cum reversio acciderit a Distress was made for the Rent arrear ever since the Grant Resolved that it was good for no more than was incurred since it fell into possession Keeling Chief Justice held strongly to the contrary For he said the words were so express in this Case that they have left no place for Construction which other Clauses or the Intention of the Parties may direct when the Expression is doubtful He took it for a Sum in gross for Distrained for it could not be being reserved upon the Death of the Lessees or either of them which was also the limitation of their Lease And that Interpretations were not to be made against the plain sense of words He relied upon Edriches Case 5 Co. where the Judges said They would not make any Construction against the express Letter of the Statute yet there was much Equity in that Case to incline them to it And he said As well as a Fine is paid upon the taking of such Lease before it begins why may not something be paid also when their Interest determines And in some Countries they call such Payments A fair Leave Miller versus Ward TRespass for breaking of his Close on the 1st of August and putting in his Cattel The Defendant Iustifies for Common which he prescribes for in this manner viz. That two years together he used to have Common there after the Corn reaped and carried away until it was sown again and the Third year to have Common for the whole year and that that Year the Plaintiff declares for the Trespass was one of the years the Field was own quod post grana messa c. he put in his Cattle absque hoc that he put them in aliter vel alio modo The Plaintiff Demurs which it was Ruled he might for the Defendant doth not answer to the Time wherein the Trespass was alledged and the Traverse will not help it for aliter vel alio modo doth not refer to the time Anonymus AN Administrator brings Debt upon an Obligation The Defendant pleads payment to himself Vpon which it was found for the Defendant Coleman prayed that he might have Costs As where an Executor brings an Action sur Trover and Conversion in his own time and found against him it was Ruled in Atkyes Case 1 Cro. that he should pay Costs and hereof his own knowledge he had no cause of Action the Money being paid to himself But the Court Resolved That there ought to be no Costs in this Case for the Action of Trover in his own time might have been brought in his own Name so it was needless to name himself Executor or Administrator but the Action here is meerly in right of the Intestate Harvey versus James AFter Verdict at the Assizes the Clerk delivered the Postea to the Attorney by whose negligent keeping it came to be eaten with Rats But the Court Examining the Clerk of Assize it appeared that he had Entred the Jurors Names Verdict and Tales in his Book and according to that the Court suffered the Verdict to be entred on Record Anonymus IN an Action of Battery against Baron and Feme the Jury find the Feme only Guilty and not the Baron It was moved in Arrest of Judgment That this Verdict was against the Plaintiff for he ought in this Case to have joyned the Baron only for conformity and he declaring of a Battery by both the Baron being acquitted he hath failed of his Action and so is Yelverton 106. in Drury and Dennys Case But here the Court gave Iudgment for the Plaintiff and said that that in Yelvetron was a strange Opinion Anonymus A Certiorari was prayed to remove an Indictment of Manslaughter out of Wales which the Court at first doubted whether they might grant in regard it could not be tryed in an English Country But an Indictment might have béen found thereof in an English County and that might be tryed by 26 H. 8. cap. 6. vid. 1 Cro. Soutley and Prices Case and Chedleys Case But it was made appear to the Court That there was a great cause to suspect Partiality if the Tryal proceeded in Wales for the Party was Bailed already by the Justices of Peace there which Twisden said it was doubtful whether they had power to do for Manslaughter They awarded a Certiorari and took Order that the Prosecutor should be bound by Recognizance to prefer an Indictment in the next English Country Collect versus Padwell IN Debt upon a Bond to perform an Award which was That one should make a Lease to another before the 21 of October which was 2 or 3 Months after the Award and that the other upon the making of the Lease should pay him 50 l The Question was Whether notice in this Case ought to be given when he would make the Lease for otherwise it was said the other must have 50 l always about him or be in danger to break the Award And it was resolved by the Court That no notice was necessary Noell versus Nelson MIch 21. Car. 2. Rot. 745. Error to Reverse a Judgment given in the Common Pleas where the case was thus Nelson brings Debt against Noel as Executor of Sir Martyn Noel who pleads plene administravit The Plaintiff confesseth the Plea and prayeth Iudgment de bonis Testatoris quae in futoro ad manus Defendentis devenirint and upon a Suggestion of Assets afterwards he
distress upon a Copyholder for a reasonable Fine the value of the Land must be set forth and the certainty of the Fine that the Court may judge of it Austin and Gervases Case Hob. 69 77. In Consideration that he should give him Bond for 10 l the Defendant promised c. and pleads that he offered him Bond for the said sum c. and upon Issue Non Assumpsit it was found for the Plaintiff But he could not have Iudgment because the sum wherein he offered to become bound was not exprest so that it might appear to the Court to be sufficient Jones contra This differs from the Case in Hob. for there the sum being certain for which the Bond was to be given the Court may well judge what Penalty will secure it But it is not so in this Case for it doth not appear to what value the damnification may be so there is nothing as in the other Case whereunto to Proportion the Penalty of the Bond. The Court held that it would not have been good upon a Demurrer but being after a Verdict and the Statute of Jeofails made at Oxford which Twisden stiled an omnipotent Act they gave Iudgment for the Plaintiff Lord Birons Case THe Lord Biron was Plaintiff in an Action and upon a Non-Suit five pounds Costs were taxed against him and he brought another Action for the same matter which was said to be meerly for vexation and that he refused to pay the Costs neither could he be compelled being a Peer and in Parliament time Wherefore the Court gave day to shew Cause why this Action should not stay until he had paid the Costs in the former Anonymus IF a Writ of Error be brought in the Exchequer Chamber and that being discontinued another is brought in Parliament this second Writ is a Supersedeas But if a Writ of Error be brought in Parliament and that abates and the Plaintiff brings a second this is no Supersedeas because it is in the same Court Prior versus Shears IN a Writ of Error to Reverse a Judgment given in the Palace Court in an Assumpsit where the Plaintiff declared sur indebitatus pro Naulo and upon Non Assumpsit c. had Judgment It was assigned for Error That it was not ascertained how the Defendant was indebted and that Fraight was usually contracted for by Charter party and if so the general Indebitatus would not lie for a Debt by Specialty Notwithstanding the Judgment was affirmed for for ought appears there was not any Deed in the Case and it shall not be intended and it is no more than the Common Action pro mercimoniis habitis venditis Note It was further objected That this appears to be for Marriners Wages for Sailing to some Foreign parts which must needs be out of the Jurisdiction of the Marshalsea and though the Argréement were made within it yet the thing being to be done elsewhere they could not hold Plea As if a Carrier should agree within the Limits of the Court to carry Goods from thence to York no Action could be brought there upon it which was agréed But the Court said here It doth not appear they were to Sail to any place out of the Jurisdiction and they have laid all the Matter to be infra Jurisdictionem Curiae And therefore the Judgment was Affirmed Hayman versus Trewant TRin. 22 Car. 2. Rot. 710. In an Action upon the Case for that the Defendant bargained with him such a day and year for the Corn growing upon such Ground affirming it to be his own whereas he knew it to be the Corn of J. S. and postea adtunc ibid. fraudulenter vendidit Warrant ' c. The Defendant pleads That the Plaintiff had another such Action depending for the same Cause and demands Iudgment of the Writ The Plaintiff Replies that that Action was commenced for another Cause and not for the same absque hoc that it was for the same Cause To which the Defendant Demurs specially because the Plaintiff having denied what the Defendant affirmed ought not to have added a Traverse but to have concluded to the Country As the Case of Harris and Phillips 3 Cro. 755. was Adjudged Where in an Audita Querela to avoid the Execution of a Recognizance the Plaintiff sets forth that it was defeazanced upon payment of divers Sums of Money at certain days and that he was at the place appointed and tendred the Money and that the Defendant was not there to receive it The Defendant pleaded Protestando that the Plaintiff was not there to pay it and that he was there ready to receive it absque hoc that the Plaintiff was ready to pay it Which being specially Demurred to the Court held the Plea naught and that there being an express Affirmative and Negative there should have been no Traverse for so they may traverse one upon another in infinitum Notwithstanding the Traverse was here held good which was allowed for putting the Matter more singly in Issue And it appears that Phillips's Case was Adjudged upon another matter For that the Plea in Bar was not entred as the Defendant's Plea but was entred thus Pro placito Bush a Stranger dicit Yelv. 38. Then it was moved That as the Plaintiff hath declared here it appears that the Warranty was subsequent to the Bargain For it is said that he bargained for the Corn knowing it to be the Corn of J.S. postea adtunc ibidem vendidit which is repugnant Sed non allocatur for where it is said first That he bargained that shall intended a Communication only and the Consummation of it after when the Warranty was given which is also said to be adtunc ibidem So alledged well enough Foxwith versus Tremaine TRin. 21 Car. 2. Rot. 1512. Five Executors bring an Action sur Indebitat ' Assumps The Defendant pleads in Abatement That two of them are under the Age of 17. and that they appeared by Attorney And to this the Plaintiffs Demur They who Argued for the Defendant made two Questions 1. Whether they ought all to joyn in the Action And it was said they ought not for one under Age cannot prove the Will And in Smyth and Smyth's Case Yelv. 130. it is Resolved they must be all Named so that their Interest may be reserved unto them but are not to be made parties to the Action And for this the Case between Hatton and Mascue which was Adjudged in the Exchequer Chamber was cited Where in a Scire facias it was set forth That A. being the Executor of B. made his Will thus I Devise all my Personal Estate to my two Daughters and my Wife whom I make my Executrix And that they had Declared in the Ecclesiastical Court that this made them all three Executrixes and that the Will was proved and that the Wife brought this Scire facias to have Execution of a Judgment obtained by A. the Testator And the Defendant Demurred because not
against the rest which therefore was not affected by the Error The fourth was overruled for where the Party is present the Iudgment is always quod committitur as appeared by the Presidents Fifthly the Variances from the Statute were not held to be material for in Old writings 't is written Sea of Rome and declaring in Conscience and in my Conscience are the same The sixth Error was also disallowed for the words of the Statute are shall incur the danger and penalty of Praemunire mentioned in 16 R. 2. which doth not necessarily bind up to the Process Vid. 16 R. 2. 5. which makes this very clear but means that such Iudgment and Forfeiture shall be and it appearing that the Parties were present there was no need of any Process But as to the third Exception which was taken to the Venire they said they would be advised until the next Term and they told the Prisoners who were Quakers and had brought a Paper which they said contained their acknowledgment of the Kings Authority and Profession to submit to his Government and that they had no exception to the matter contained in the Oath but to the Circumstance only and that they durst not take an Oath in any Cause which they prayed might be read but it could not be permitted that their best course were to supplicate his Majesty in the mean time for his Gracious Pardon Radly and Delbow versus Eglesfield and Whital IN an Action sur 13 R. 2. cap. 5. 2. H. 4. cap. 11. for suing the Plaintiff in the Admiralty for a Ship called the Malmoise pretending she was taken piratice whereas the Plaintiff bought her infra corpus Com. It seems there was a Sentence of Adjudication of her to be lawful Prize in Scotland in April 1667. as having carried bellicos apparatus i.e. Contraband Goods in the late Dutch War and the Plaintiff bought her here under that Title The Libel was That the Ship belonged to the Defendants and about January 1665 was laden with Masts c. and had Letters of safe conduct from the Duke of York to protect her from Concussion c. and that certain Scottish Privateers did practise to take the said Ship and after the Defendants took her and being requested refused to deliver her and that ratione lucri cessantis damni emergentis they suffred so much loss c. The Defendants pleaded Not guilty to this Action and upon the Tryal would not examin any Witnesses but prayed the Opinion of the Court who said there was good Cause upon the Libel which now they must take to be true in the first instance for the Admiralty to proceed In 43 Eliz. it was resolved 1 Cro. 685. Yelv. 125. Sty 418. If Goods are taken by Pirates on the Sea tho' they are sold afterwards at Land yet the Admiralty had Conusans thereof for that which is incident to the original matter shall not take away the Iurisdiction and that is Law tho' there were another Resolution in Bingleys Case 1 Rolls 531 Hob. 78. 3 Jac. 7 Ed. 4. 14. and 22. Ed. 4. If Goods are taken by an Enemy and retaken by an Englishman the property is changed Otherwise if by Pirates And if in this Case the taking were not Piraticè it ought to have béen alledged on the other side Had the Sentence in Scotland béen pleaded in the Admiralty the Court would have given deference to it as if a Man had a Judgment in Communi Banco and should begin a Suit for the same in Banco Regis This might be made a good Plea to the Suit but not to the Iurisdiction for for ought appeared this might have been the first Prosecution and no Proceedings might have béen in Scotland This came to be tryed at the Nisi prius before Hales who was of the Opinion ut supra then But because it was a cause of weight he ordered it to be tryed at the Bar. And because 't was for his satisfaction and for a full Resolution the Jury was paid between the Parties Note A Proctour sworn a Witness said when this Cause was in the Admiralty there was a provisionate Decree as they call it or primum Decretum which is a Decree of the Possession of the Ship and upon that an Appeal to the Delegates but my Lord Keeper being informed that no Appeal to them lay upon it because it was but an interlocutory Decree upon hearing of Counsel he superseded the Commission When a Ship is so seized upon security given 't is the course of the Admiralty to suffer her to be hired out Watkins versus Edwards PAsch 22 Car. 2. Rot. 408. An Action of Covenant was brought by an Infant per Guardianum suum for that he being bound Apprentice to the Defendant by Indenture c. the Defendant did not keep 5 Eliz. c. 4. maintain educate and teach him to his Trade of a Draper as he ought but turned him away The Defendant pleads That he was a Citizen and Freeman of Bristol and that at the General Sessions of the Peace there there was an Order made that he should be discharged of the Plaintiff for his disorderly living and beating of his Master and Mistress and that this Order was Enrolled by the Clerk of the Peace as it ought to be c. To this the Plaintiff Demurrs The First question was Whether the Statute extends to all Apprentices or only such as are imposed upon their Master by the Justicies and compellable to serve And Hale and Moreton inclined That it did not extend to all Apprentices Twisden and Rainford contrary Secondly Whether they had power to discharge the Master of his Apprentice as they might è Converso Hale conceived they could not But cause the Servant to have due Correction in case the Master complained of him Twisden Rainsford and Moreton Contra. Hankworthy's Case For he may be so incorrigible that the Master cannot keep him without standing in continual fear and in Mich. 21 and Hill 2. 22 Regis nunc upon the removal of an Order of Sessions from York it was resolved That the Master might be eased of his Apprenetice by the Sessions upon just cause And Twisden said Shelton Clerk of the Peace for Middlesex informed him that such Orders are frequently made Thirdly The great question was whether the Defendant ought not to have applied himself to one Justice first as the Statute directs that he he might if he could have settled the business and if not then to go to the Sessions and not to go thither per saltum as upon the Statute of the 18 Eliz. cap. 3. The Sessions cannot make an Order for keeping of a Bastard but upon an Appeal from the two Justices which are first to make an Order Hale This case differs for the 18 Eliz. gives the first Men power to make an Order which shall bind the Parties until it is avoided by Appeal but this Statute of 5 Eliz. gives no Iurisdiction to
c. adjudged the paying the 10 l was a Condition precedent 5 or 15 H. 7. 10. is our Case in Point if the Plaintiff had alledged that he had offered to work and the Defendant had hindred him it had been good The want of the Averment is not helped by the Verdict for 32 H. 8. extends not to Declarations or Avowry's but only to Pleading if otherwise there had béen no need of 21 Jac. cap. 13. to cure the want of averring the Parties Life Twisden Contra. There is no need of the Averrment there being Reciprocal promises upon which the Parties have mutual remedies and relyed upon the case 1 Roll. 46. Rainsford agreed with Hale Et Ajornatur Termino Sancti Hillarij Anno 23 24 Car. II. In Banco Regis Harwoods Case HE was committed to Newgate by the Court of Orphans and upon an Habeas Corpus it was returned That the City of London is an ancient City and that time out of mind the Mayor and Aldermen have had the custody of Orphans within the City until the Age of 21 or Marriage and that there hath been time out of mind a Court of Record called the Court of Orphans holden before them having Conusance of all matters concerning Orphans and that they had power to give Licence to Marry a Woman which was their Orphan or to deny it upon reasonable cause and if any one did Marry such Orphan without Licence first had from the said Court that they might impose a reasonable Fine upon him and if he should refuse to pay it or to give Security to commit him to Prison It was also returned That Harwood did Marry such an Orphan without Licence first obtained whereupon he being present in Court they fined him 40 l and he refusing to pay it or give Security was committed To this return First it was objected That this Custom shall not bind Strangers in 1 Cro. 689. Deanes Case who was imprisoned for refusing to find Sureties for the Good Behaviour which was demanded of him because he called an Alderman Fool. It was returned That if a Freeman commit such an Offence c. So in Andrews Case in Hutton 30. one was Imprisoned for not giving Security for the payment of a Legacy devised by his Testator to an Orphan he is returned to be a Freeman Secondly This Custom as returned is unreasonable for it would oblige Strangers at what distance soever from London who cannot take notice who are Orphans of the City yet they should incur a penalty by Marrying them without leave from the City and they have not returned that Harwood Married the Orphan within the City and therefore it must be intended that he did not and in all other Points most advantagiously for him in regard he cannot shew the truth of his Case by pleading to the Return In an Action upon the Statute of Labourers the Plaintiff declared That he retained a Servant at London and that the Defendant retained him within the Term he had contracted with him for The Defendant pleaded that he found him vagrant in another County and there retained him and held that it was a good plea for he was not bound to take notice of a retenier by the Plaintiff when it was in another County 17 E. 4. 7. b. The difference is taken between Customs general such as Gavelkind and private particular Customs the one everyone shall take notice of but not the other 3 Cro. Launder and Brooks Case The Court of Orphans is a particular Iurisdiction and not to be extended all over England and it appears by the Books that they may have a Ravishment of Ward F.N. B. 142 B. Hob. 95. which therefore seems to be their proper remedy rather than the course they have now taken Thirdly The Custom is unreasonable that they should impose the Fine who are to have it and so to be Iudges and Parties Fourthly It was alledged That the Fine was unreasonable which is not to be proportioned to the Portion the Orphan is to have which was shewn in the Return to be 800 l but to the crime for it doth not appear that the City is to have the value of the Marriage or any benefit by it and in this Case there was no disparagement for his quality deserved such a Portion and he had the consent of her Friends But notwithstanding these Exceptions to the Return it was resolved by all the Court that he should be remanded As to the 1 that it is not returned Harwood is a Freeman the Court resolved that it is not material for in many Cases Strangers are bound by the Customs of London as that of Foreign bought and Foreign sold was resolved to be a good Custom 15 Car. 2. between Hutchins and Players in Communi Banco 2. Tho' it appears the Marriage was in a Foreign County and not shewn that he had Notice it is all one for if that might be an excuse the Government of Orphans by the City of London would be utterly insignificant for it would be only to seduce the Orphan out of the Liberties of the City and whatever practice there were to disparage her in a Marriage it would be dispunishable by them and Notice in this case is impossible to be given but most easie to be taken for what more proper than for a Man to inform himself of the Condition of her whom he intends to make his Wife and if Notice were requisite it must be given to all the Men in England capeable of Marriage and in what manner should that be by fixing it like a Proclamation to some notorious place in the County Yet it would be then hard to maintain that a Man was bound to take notice of such a thing the Statute of this King that takes away the Court of Wards saves and confirms the Iurisdiction of the Court of Orphans in London which being in a general Law is within every mans Notice for the Case of taking away a Mans Servant in a Foreign County to that he was retained in is not like to this for it he be detained after demand made he which first retained him may have an Action and so is at no loss but here there is no remedy by undoing the Marriage and therefore 't is fit the rashness of it should be punished This Custom concerning Orphans is not confined to the Walls of London in many particulars All the Children of a Freeman tho' he dies and they were born out of London shall yet be Orphans If a Legacy be bequeathed to a City Orphan in any Foreign County the Executor c. shall be compelled to give Security to the Court of Orphans for the payment of it Et vid. Luch's Case in Hob. 247. The interest of the City adheres to the person of the Orphan where ever he is as a Citizen of London shall have his personal Priviledges in all places as exemption from Toll Prisage Quaere the last per Hale And as well as they may have a Ravishment
Specie when the Estate is determined The Case of Captain C. A Captain of a Company in Colonel Russel's Regiment of Foot Gaurds and a Serjeant of his Company were brought into Court upon the Prosecution of the Sheriffs and other Citizens of London and the Offence alledged and moved against them was this That one Danbert a Butcher and Freeman of London who had Broke having Listed himself a Souldier in this Company and being afterwards Arrested in London for Debt and laid in the Counter and thereof he having given the Captain private Notice the following Design was resolved and executed for his Rescue viz. There being a Priviledge belonging to the Freeman of London that they may by a Customary Precept or Warrant called a Duci facias but by the Common People called a Horse remove themselves from any other Prison where they are in London to Ludgate where it seems they have better Accommodation there being Maintenance allowed to the Prisoners of that place Such an one Danbert got and gave Notice to the Captain at what time he should be carried from the Counter to Ludgate thereby Before this time the Captain commanded this Serjeant to take twenty or thirty Soldiers with him and Way-lay the Prisoner and Rescue him from the Bayliffs and Officers of the Counter as they were bringing him along Accordingly the Serjeant and Soldiers went and lay in or near an Alehouse about Popes-head Alley in Ambuscade till the Prisoner should be brought by And when they had Notice from one who they had placed as Centinel that he was coming they sallied out and drew their Swords for the Serjeant had given them order so to do and if any opposition were made they should kill the first Man And by this means they Rescued him and carried him away Hereupon Complaint being made to the Captain He Answered That his Soldiers had done well and he would Justifie it The Court asked him what he had to say in his Iustification He said That he did not know the Law but he ever thought that a Soldier could not be Arrested without leave of his Officer and that there was an Agreement to that purpose between the late Lord General and the former Lord Chief Justice and that he knew one that had done the like thing and nothing was said to him for it Hale Chief Justice to whom the rest agreed said The more wrong has been done It seems you are grown very Dead-strong but you ought to know that every Officer and Soldier is as liable to be Arrested as a Tradesman or any other person whatsoever and you ought to give full Obedience to the King's Commands signified by his Writs or Process Wild said That that may be served upon you when you are in the Head of your Company Hale said further You are the Kings Servants and intended for his Defence against his Enemies and to preserve the Peace of the Kingdom not to exempt your self from the Authority of the Laws And indeed it were a vain thing to talk of Courts and Laws if Military Men shall thus give the Law and controll Proceedings And for that Agreement you speak of I know nothing of it and if there were any such thing it could be nothing but a Civility Whatever you Military Men think you shall find that you are under the Civil Jurisdiction and you but gnaw a File you will break your Teeth e're you shall prevail against it This is an Outragious Offence and the Punishment has formerly gone high Men have heretofore lost their Heads for Matters of such nature and one of the Crimes of the late London Apprentices was the breaking of Prisons and delivering of Prisoners for which they had Iudgment of High Treason by the Advice of all the Judges The Captain and Serjeant were Committed to Newgate and being brought up at another time Hale asked Why an Information against these Persons was not Exhibited And told the City Counsel that if the Sheriffs did not prosecute this business they the Court would Prosecute them for this was a matter of great Example and ought not to be smothered And further said If that Men will take upon them to Rescue all Soldiers that are Committed it may be within the reach of High Treason because of the Vniversality of the Design against the King's Athority But this being but for one particular it cannot be Treason but 't is a rank Misdemeanour And be Ordered that as many of the rest of the Soldiers should be Prosecuted as their Names could be learned There must be one more to make a Riot tho' however 't is a Misdemeanour Wild said Tho' they cannot find out another Name yet if it be set forth and made out that there were others 't is enough to make a Riot Termino Sancti Hillarij Anno 25 26 Car. II. In Banco Regis NOte When a Prohibition is moved for that a Copy of the Libel is denied to be delivered The Court requires that Oath should be made of the Denial and the Prohibition is but quousque a Copy be delivered Anonymus AN Indebitat ' Assumpsit was brought for Money Lent The Defendant pleads a Tender which being offered at first before Action brought and acknowledged by the Plaintiff he can never recover any Costs The Plaintiff Replies That before the Tender he brought an Assumpsit in the Sheriffs Court upon a Plaint upon the same Cause of Action which was removed hither The Defendant Rejoyns that upon that Plaint he declared for a greater Sum. To which the Plaintiff Demurred For tho' there be a Variance in the Sum yet it might be averred to be the same Cause of Action And so the Court agreed And Hale put this Case A. in Consideration that B. would marry his Daughter promised to pay 100 l and in an Action brought the Plaintiff was barred and in another Action brought The Promise was laid to pay the 100 l at Request and held it could not be averred to be the same Anonymus Note Where Error is assigned in a Matter contrary to the Record in nullo est Erratum is a Demurrer So where Matter of Fact is insufficiently alledged But if a Matter of Law and Matter of Fact together well set forth be assigned which ought not to be there in nullo est Erratum will be a Confession of the Matter of Fact and not serve as a Demurrer for the Doubleness Wherefore in that case the Defendant must Demur Anonymus ONe having Rent payable Half yearly for a Term whereof about six years were to come was content to Release it upon a Bond Conditioned for the payment of the like Sum with the Rent and at the same times And in Debt upon the Bond after failure of Payment upon a Reference to the Secondary to state what was really due He asked the Opinion of the Court whether there should be any deduction for Taxes And the Court said it was Equitable they should be allowed in regard the Money in the
Order And Wild said It was well Westminster-Hall Doors were open Kent versus Derby INdebitatus Assumpsit The Plaintiff declared that the Defendant being indebted to him in a certain sum pro diversis mercionis ante tunc venditis deliberatis ad requisitionem of the Defendant to a Stranger did promise to pay c. After Verdict for the Plaintiff it was moved in Arrest of Judgment that this was but a Collateral Promise and that no Indebitatus Assumpsit would lie for the Debt was from the person to whom the Goods were sold Wild and Jones held the Action well brought and cited an Action sur indebitatus Assumpsit lately in this Court against one for Money promised in Marriage with his Sister Vid. R. 120 122. Sed Rainsford Chief Justice contra But the Plaintiff had Judgment Termino Sanctae Trinitatis Anno 29 Car. II. In Banco Regis Howlet versus Carpenter THe case upon a Special Verdict in Ejectment was this a Copiholder of a Dean and Chapter levied a Fine with Proclamation and five years passed without any Seizure or Claim by him that was Dean at the time of the Fine levied and whether the succeeding Dean was barred was the question And the Court at the first opening held clearly that he was not for if so the Statutes 1 13 Eliz. which restrain the Alienation of the Church Revenue would be of small effect 11 Co. Magd. Colledge's Case The Company of Ironmongers versus Nailer IN Trespass upon Not guilty a Special Verdict was to this effect that Nailer being one of the Officers for Collecting of the Duty of Hearth Money distrained for a certain Sum accruing for the Chimneys of a new built House which had never been inhabited neither did it appear that there had been any account of the Chimney's thereof returned into the Exchequer There were made three questions First Whether any thing shall be paid for Chimneys in such new built Houses Secondly Whether the Distress can be for that Duty in other places than at such Houses Thirdly Whether there can be any Distress taken before such time as the account of the Chimneys be returned into the Exchequer As to the first the whole Court were clear of Opinion that such new Houses which were never inhabited were chargeable for the words of the first Act are express viz. That every Dwelling and other House and Edifice other than such as are after excepted shall pay And there is no exception that extends to such House altho' it were objected that the Proviso in the Act of 14 is that the Duty shall be chargeable only on the Occupier and every Clause in the Act runs upon Occupiers and the Act of 15 recites the Kings Revenue to have been much obstructed for want of just Accounts of Chimneys under the hands of the Occupiers and the Act of 16 charges the next Occupiers with the half years payment where the former Occupâ—er removed before it grew due which implies if an House stood empty for longer time it should not be paid Again it is appointed to be demanded at the House and in case of refusal to distrain which shews an intention that it should be inhabited But it was answered That the words before mentioned were so full as not to be avoided and that there were sundry Clauses also in the Act which did import an intention that empty Houses should pay and so hath been the practice ever since the Act and that there were no manner of difference between these Houses which were new built and other Houses that in case there was no Tenant the Owner was understood to be Occupier as if the Owner grants an House in his Occupation it would be well tho' he did not inhabit it himself if it were inhabited by no other The Act of the 13 and 14 appoints notice to be fixed upon the Door for an account to be given in case there be no Inhabitant and six days after such notice to enter and take account which shews they meant empty Houses should be chargeable and why not as well as for Chimneys whereof no use is made As to the second Point the Distress it well taken tho' it doth not appear to be after an account made into the Exchequer for the duty accrues before and that is provided only that the King might be apprized of the number of Chimneys and so there might be a check upon the Collectors when they make their Accounts neither is any Process appointed to go out upon such Return of the number of Chimneys The Statute of 21 Jac. appoints Informers to be Sworn but if an Informer be not Sworn 't is but a neglect in the Officer The Proceedings are notwithstanding sufficient Mo. 447. where 21 H. 8. appoints the Enrolments of Dispensations in Chancery yet if not done it does not invalidate the Dispensation Thirdly The Distress was resolved to be well taken being in the Kings Case for an Act of Parliament shall be expounded according to the reason of the Law in such Cases Note Livesay the Secondary craved the Opinion of the Court whether he should tax treble Costs in this Case for the Act of 14 gives treble Costs where any person is prosecuted for what he should do in execution of that Act c. Now that Act appointed the Constables c. to Collect and Execute the Act. But now by vertue of the subsequent Acts for the Chimney Money the Collection c. is by other persons and the doubt is Whether they can have treble Costs by the Act of 13 and 14. But the Attorney General who was of Counsel with the Defendant said he would not insist upon treble Costs at this time because this Cause was brought on by consent for the determination of the doubt about new empty Houses paying but desired that it might be without prejudice Baker versus Bakers A Prohibition to the Delegates The case was that Administration had been granted to the Wife upon which an Appeal was brought by the Mother of the Intestate upon this Allegation in t ' al' That the Wife had Covenanted that she would not intermeddle in the Administration in regard she had been otherwise sufficiently provided for for it was said that the Ecclesiastical Judges had not to do with such matter But it was objected on the other side that it fell incidently into the principal matter whereof they had Conuzance but they might be prohibited if they judged the effect of it contrary to our Law neither did it appear that the Delegates would admit of this Allegation and there were no presidents for a Prohibition quia timer But on the other side it was said that there would go a Commission out to examin this matter of course before the Judges Delegates should sit to hear the merits of the case and that would take up so much time that many of the Goods being bona peritura would be lost but note the Ecclesiastical Judges may provide for the
in an Inferiour Court for want of infra Jurisdictionem Curiae 2 For variance between the Count and Plaint 6 But it lies not for some Omissions 5 A Writ of Error is a Supersedeas to an Execution 30. Yet the Judgment remains a Record 34 Exception 353 355 A Writ of Error returnable ad proximum Parliamentum not good Secus if to the day of Prorogation 31 266 No Writ of Error lies upon a Conviction before a Justice of Peace 33 In a Writ of Error if the Defendant dies the Writ is not abated Secus if the Plaintiff dies 34 Lies not to reverse a Judgment in a Qui tam nor upon the Statute de Scandalis Magnatis 49 What Records to be returned upon a Writ of Error 96 97 Where it lies upon a Judgment in a Scire facias and where not 168 Error in fact not assignable in the Exchequer Chamber 207 A Writ of Error that bears Teste before the Judgment good to remove the Record if Judgment be given before the Return 255 Escape See Baron and Feme VVhere a Prisoner Escapes by permission of the Sheriff he may be taken again by the Party Plaintiff 4 Debt against the Sheriff for a Voluntary Escape the Sheriff pleads that he took him again upon fresh Suit Good 211 217 Against the VVarden of the Fleet 269 The Lessor of the Custody of a Prison answerable for an Escape where his Lessee is insufficient 314 Escrow See Pleading Evidence See Statutes The party suffering admitted to give Evidence for the King to detect a Fraud 49 Exception See Feoffment Excommunication In Excommunication ipso facto no necessity of any Sentence of Excommunication 146 Excommunication pleaded to an Action per Literas testamentarias Good 222 How discharged where the Capias is not inroled according to the Statute 338 Execution Upon an Elegit the Sheriff ought to deliver Possession by Metes and Bounds or otherwise it may be quasht 259 Executor See Abatement Costs Return Of Infant Executors where to Sue by Guardian 40 54. VVhere by Attorney 40 102 103 If a Man names himself in an Action Executor or Administrator and it appears the Cause of Action was in his own right it shall be well enough and the calling himself Executor is but surplusage 119 VVhere the Executors promise in relation to the Testators Debt shall make the Debt his own 120 268 VVhere Interest is due for a Debt partly in the Testators life time and partly since and one Action brought and Judgment given for the whole this is manifestly Erroneous 199 VVhere chargeable in the Debet detinet and where in the detinet only 271 321 355 Cannot assume the Executorship for part and refuse for part 271 Debt doth not lie against the Executor of an Executor upon a Surmise of a Devastavit of the first Executor 292 Of the Executors renouncing 303 cannot refuse after Oath 335 Of Executor de son tort 349 VVhat Acts an Executor may do before Probat 370 Exposition of Words Obstrupabat 4 Or 62 148 Pair of Curtains and Vallence 71 106 Ad sequendum 74 Vt 73 74 Aliter vel alio modo 92 Mutuasset and mutuatus esset 109 Aromatarij 142 Centena 211 Issue 229 Land 260 Crates 304 Gubernatio Regimen 324 Exilium 326 Vestura terrae 393 Extinguishment Where two Closes are in the same Possession the Duty of Fencing is Extinguished and shall not Revive thô the Closes come after into several hands 97 F. False Latine DE sex bovibus instead of bobus no sufficient Cause to Arrest Judgment 17 Feoffment A Man makes a Feoffment of a Mannor excepting two Closes for the Life of the Feoffor only The two Closes descend to the Heir 106 Fine The Delivery of a Declaration in Ejectment upon the Lands is no Entry or Claim to avoid a Fine 42. So where an Action is brought and discontinued 45 A Fine cannot bar any Interest which was divested at the time of the Fine 56 Whether a Fine and Non-Claim bars the Interest of a Lessee in Trust 80 No Bar to a Mortgage 82 A Parish may contain many Vills and if a Fine may be levied of Lands in the Parish it carries whatsoever is in any of those Vills 170 Lessee for years makes a Feoffment and levies a Fine the Lessor shall have five years to Claim after the Term expired 241 Forcible Entry In an Indictment of Forcible Entry it must appear that the place was the Freehold of the party at the time of the Entry with force because upon the finding a Restitution is to be awarded 23 Foreign Attachment See London Of Foreign Attachments by Custom how to be pleaded 236 G. Gaming See Statutes Guardian See Baron and Feme Executor Grant See Hundred GRant without Consideration hinders not the arising of a Contingent use 189 In Prescriptions or Usage time beyond Memory the Law presumes a Grant at first and the Grant lost 387. And therefore nothing can be prescribed for that cannot at this day be raised by Grant ibid. Of the Kings Grant 408 409 A Grant to a Town to be a County and no Grant of having a Sheriff void 407 H. Habeas Corpus See Statutes THo' the Return be Filed yet the Court may remand the Prisoner to the same Prison and not to the Marshalsey 330 346 Whether it lies to remove a Prisoner in Ireland 357 Half Blood The Sister of the Half Blood shall come in for distribution upon the Stat. 22 23 Car. 2. chap. 10. 316 317 323 Half Blood no Impediment to Administration 424 Harriot Where a Lease is made to commence on the Determination of another if the new Lessee dyes before his Term Commences whether a Harriot shall be due 91 Heir An implied Estate of Land shall not pass in a Will for an Heir shall not be defeated but upon a necessary Implication 323 376 A Man cannot by Conveyance at Common Law by Limitation of Uses or Devise make his right Heir a Purchaser 372 379 Yet Heirs of the Body of his second Wife having a Son by the first is a good name of Purchase 381 Hospital Mastership of a Hospital not grantable in Reversion 151 Hundred A Hundred what it is and the Bayliff of a Hundred 403 The Grant of a Hundred good notwithstanding the Statutes 2 E. 3. 12. 14 E. 3. 9. 410 412. I. Imprisonment Where an Offence is Fineable if the Fine be tenderd there ought to be no Imprisonment 116 Indictment Where a Statute makes an Offence at Common Law more penal yet the Conclusion of the Indictment is not contra formam Statuti 13 A Man cannot be Indicted for saying of a Justice of Peace he understands not the Statutes of Excise but may be bound to Good Behoviour 10 16 Indictment of Forgery upon the Stat. 5 El. 4. where good and where not 23 24 Strictness of words not required in in an Order of Sessions thô it ought in an Indictment 37 For Manslaughter not quasht upon Motion 110.
the Avowant mode forma as he hath set forth 211 The Avowant demurs generally The Plaintiff joyns 212 4. The Plaintiffs declare against three Defendants for taking and detaining their Cattel 224 One of the Defendants avows the other two make Conizance as his Bayliffs The Avowant says That the Father being seized in Fee of the third part of a certain Messuage c. of which the Locus in quo was parcel demised the same for 99 years if A. B. and C. or either of them should so long live reserving Rent That the Lessee entred That the Father being seized of the Reversion died seized and a discent to the Avowant as Heir at Law who distrained for Rent arrear 225 Super praedictam tertiam partem c. And avers That C. is still living In Bar to the Avowry the Plaintiffs Confess the seisin of the Father of one third and that J. S. was seized of the other two parts who licensed the Plaintiffs to put in their Cattel upon the Locus in quo which they did 226 The Defendants demur to the Bar. The Plaintiffs joyn in Demurrer 227 S. Scire facias 1. AGainst a Ter-tenant 101 The Judgment recited in the Writ to the Sheriffs of London The Plaintiff obtulit se at the Return The Sheriffs Return That there were no Tenants of any of the Defendants Lands at the time of the Judgment or at any time since quibus Scire fac ' possunt 101 A Testatum Scire fac ' to the Sheriff of Norfolk The Plaintiff and a Ter-tenant appear at the Return The Sheriff Returns That he had summon'd P. S. who was then Tenant of Lands which were the Defendants at the time of the Judgment and that there are no other Tenants to whom c. The Ter-tenant salvis sibi omnibus exceptionibus c. Imparls The Plaint revived continued and adjourn'd by Act of Parliament 3 Febr. 1. W. M. A further Imparlance The Plaintiff prays Execution 102 The Ter-tenant pleads in Abatement of the Writ and alledges that there are other Tenants of other Lands in Surrey belonging to the Defendant at the time of the Judgment and prays Judgment and that the Writ may be quasht The Plaintiff demurs to the Plea The Ter tenant joyns in demurrer 103 Sheriff Action against him Vid. Actions on the Case 3. Plea to his Bail Bond. Vid. Debt 5. Slander Vide Action on the Case 7. Special Verdict Vid. Trover 2. T Trespass 1. TRespass against the Defendant simûl-cum G. F. for taking Vi armis and Impounding his Cattel quousque finem fecit of 11 l c. contra pacem c. 90 The Defendant as to the Vi armis and contra pacem pleads Not guilty And as to the residue of the Trespass he pleads a Seizure by virtue of a Fieri facias out of the Common Pleas and the Sheriffs Warrant thereupon and that the Cattel were appraised at 11 l being the true Value and detain'd until the said Sum was paid to the Sheriffs Baily for the use of the said Sheriff pro deliberatione averiorum prout bene licuit which was the residue of the said Trespass absque hoc that he is guilty before or after the said taking 91 92 The Plaintiff demurs and assigns for Cause that the Traverse is ill as to Time and that the 11 l ought not to have been paid to the use of the Sheriff by the Law of the Land The Defendant joyns in Demurrer 93 2. Trespass for Assault Battery Wounding and Imprisonment 189 As to the Vi armis vulnerationem the Defendant pleads Not guilty and Issue thereupon At to the residue of the Trespass he pleads that he obtained Judgment against the Plaintiff in the Common Pleas in an Action of Indebitatus Assumpsit which Judgment was afterwards set aside and vacated but before it was vacated a Ca. sa was sued out thereupon directed to the Sheriff who made his Warrant to the Bayliff of the Liberty 190 The Bayliff takes the now Plaintiff thereupon and had him in Custody until he paid the Money quae sunt idem Resid ' Transgr ' Insult ' Imprisonat ' and Traverses that he is not guilty of any other Trespass c. The Plaintiff replies That the now Defendant then Plaintiff in the Judgment was an Attorney whose Duty is to enter Judgments fairly and honestly and that he in deceit of the Court entred the Judgment when he ought not to have done it 191 And that afterwards on the Examination and Consideration of the said Entry the said Judgment was by the said Court adjudged void ab initio 192 The now Defendant Plaintiff in the Judgment confesseth the Matter and saith that he appointed the Judgment to be duly Entred but by default of the Clerk it was entred irregularly Absque hoc that it was Entred by the said now Defendant falso fraudulenter in deceptionem Curiae ibid. The Plaintiff demurs The Defendant joyns 193 Trover 1. TRover brought by an Assignee of Commissioners of Bankrupts 63 The Declaration sets forth the Bankrupt to be possest of such and such Goods which came to the hands of the Defendant 63 That the Bankrupt exercised the Trade of a Vintner and became Indebted to several Persons That he departed from his Dwelling-House and became a Bankrupt That the Creditors Petition'd the Lord Chancellor The Commission sued out 64 The Commissioners find him a Bankrupt and make Assignment to the Plaintiff 65 A Conversion of the said Goods by the Defendant 66 The Defendant demurs to the Declaration The Plaintiff joyns in Demurrer 66 2. Against the Sheriffs of London and others for 225 l in Money numbred and divers Goods 156 The Defendants as to part of the Goods which they set forth in particular plead That the Plaintiffs formerly brought an Action of Trespass upon the Case in the Kings-Bench against the now Defendants for taking and carrying away the Goods now sued for 159 That upon Not guilty pleaded the Issue came to a Trial and the Jury found a Special Verdict 160 Which they recite at large That the Owner of the Goods became a Bankrupt That a Judgment was recovered against him for 1000 l and a Fieri facias issued out which being delivered to the Sheriffs of London they seized the Goods in Execution That after Seizure and before Sale a Prerogatie Process issued out against the Goods which is recited in haec verba 161 The Return of the said Process 163 The Goods taken by Inquisition inventoried appraised and sold and the Money delivered to the King's Debtor 164 A Commission of Bankrupts sued out The Commissioners assign to the Plaintiffs The Assignees possest And then they Conclude Si utrum super tota Materia the Defendants are guilty the Jurors know not if the Court shall adjudge them guilty they find for the Plaintiffs if not for the Defendants 165 After several Continuances the Loquela remaining sine die was revived and continued by Act of Parliament
it could not appear upon the Record but that the Verdict was against the Plaintiff upon the mistake of the Action whereas here it appears upon the Matter at large set forth in the Special Verdict that Judgment was given against the Plaintiffs upon the Merits of of the Cause And the Court were of Opinion that the Plea in Bar was good in this Case but they took the Case of Putt and Royston to be a Case of the same nature For tho' the Issue were General yet in regard of the Averments which in every such Plea there must be it appears to the Court that the Matter was the same as well as here it doth upon the Special Verdict and if it were not the same so that the Plaintiff was barred to the former by mistaking the Nature of his Action the Averment might be traversed Therefore by reason of that Case Adjudged and the Importunity of the Plaintiffs Leave was given by the Court to speak further to the Case the next Term. The Earl of Mountague versus The Lord Preston IN an Action on the Case for the Profits of the Office of Master of the King's Wardrobe the Plaintiff Declared That King Charles the Second in the 23th year of his Reign granted him a Patent to hold the said Office for Life reciting a former Grant thereof to the Earl of Sandwich and the Surrender of that Grant And that the Defendant by colour of a Patent granted to him in the First year of the late King James had entred upon the Office and taken the Profits and had deprived the Plaintiff of the whole benefit and profit of the Office Vpon Not guilty pleaded it came to a Trial at the Bar this Term and it was insisted upon for the Defendant That the Plaintiffs Patent having recited a former Grant that they must prove that Grant to have been surrendred To which it was Answered That if they took advantage of the Recital they must admit all that was recited as well the Surrender as the Grant And of that Opinion was the Court. Then the Defendant produced the Earl of Sandwich's Patent and this the Court held would put the Plaintiff to prove a Surrender And a Surrender was shewn in Evidence accordingly Note It was said in an Action of this Nature that it is not necessary to shew every particular Sum received by the Defendant But it is a good Evidence for the Damage to shew the Profit of the Office communibus annis Anonymus AFter an Extent upon a Statute and a Liberate out of this Court the Writ was Habere fac ' terr' tenementa instead of Liberari facias and it was moved to amend the word Habere in the Writ and to make it Liberari And after divers Motions the Court Ordered the Amendment to be accordingly because it is a Judicial Writ 8 Co. 157. a. 1 Cro. 709. A Writ of Enquiry was awarded to the Sheriffs of London and it was quod Inquirat instead of Inquirant and it was amended Vid. the Case of Walker and Riches 3 Cro. 162. and the Case of Keer and Guyn Hob. 90. but in that Case the Roll was wrong in a very material thing for it was not said in the Elegit the Lands and Tenements of the Defendant Anonymus AN Action of Debt was brought in this Court for a Sum of Money recovered in the Hundred Court and the Defendant was admitted to wage his Law tho' at first the Court doubted Vid. Mo. 276. for a Wager of Law to an Action of Debt brought for an Amercement in a Court Baron Note When the Defendant hath his Hand upon the Book before he is sworn the Plaintiff is to be called and he may be Non-suited The Defendant is to bring his Compurgators but they may be less than Eleven and they are sworn de credulitate Anonymus AN Action was brought for speaking of these words of the Plaintiff He broke my House like a Thief And upon Not guilty pleaded a Verdict was found for the Plaintiff And the Court held the words not to be Actionable Anonymus IN an Action for Words spoken of the Plaintiff in saying He was a Clipper and Coiner After Verdict upon Not guilty pleaded it was moved in Arrest of Judgment that the Words did not charge him with Clipping and Coining of Money and Clipping and Coining might be apply'd to many other things But the Court held the Words to be Actionable in regard of the strong Intendment and such Words are understood by those that heard them to mean Clipping and Coining of Money Anonymus AN Attorney brought an Action for that the Defendant said of him He is a Cheating Knave and not fit to be an Attorney After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Communication of his Profession and the Words did not necessarily relate to his Practice But the Court held the Action would lye for saying That he was not fit to be an Attorney shewed plainly that Cheating Knave had reference to that Anonymus UPon a Motion for a New Trial it appeared that the Solicitor for the Plaintiff who also was an Attorney had wrote two Letters to two of the Jury before the Trial importuning them to Appear and setting forth the Hardships that his Client had suffered in the Cause and how he had Verdicts for his Title The Court set aside the Trial for this Cause and Committed the Solicitor to the Fleet for this Misdemeanor being Embracing of a Jury and before his Discharge made him pay Ten pounds to the party towards the Charges of the Trial. Pretious versus Robinson THe Cause being at Issue in Hillary Term last a Venire was awarded and a Jury Retorned upon it and in Easter Term after another Venire was awarded and a Trial was by a Jury Returned upon the two Venire's Vpon this the Court set aside the Verdict for there was no Authority for the two Venire's so all the Proceedings thereupon are void and not aided by the Statute of 16 Car. 2. Cooke versus Romney AN Action of Covenant was brought against two and it was quod teneat conventionem instead of teneant and after a Writ of Error brought it was moved that it might be amended and made teneant It was Objected That False Latin in an Original could not be amended as hos breve for hoc breve so in Waste destrictionem for destructionem Blackamore's Case 8 Co. But the Court granted the Motion and ordered the Amendment And it was said of late days it had been done in case of a word Mistaken in an Original as in Ejectment divisit for dimisit Vid. in Blackamore's Case the like 159. b. Imaginavit for imaginatus est was amended Anonymus IN Trover and Conversion for a Mare Vpon Not guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Mare was said ad valentiam and it should have been pretii Sed non
menconat ' post confecconem scripti praedicti ante praedict ' undecimum diem Novembr ' in Condicone praedicta superius spec ' scilicet decimo die Novembr ' anno regni domini Jacobi secundi nuper Regis Angl ' The Award made in Writing quarto apud Gisborne praedict ' fecer ' quoddam arbitrium suum in scriptis sub manibus sigillis suis de super praemissis praedictis adtunc ibidem partibus praed ' parat ' fore deliberand ' per quod quidem arbitrium iidem Arbitratores arbitraver ' ordinaver ' de super praemissis in Condicone praedicta superius spec ' modo forma sequen ' videlicet quod praedict ' Willielmus Holgate bene veracit ' solveret seu solvi causaret eisdem Roberto Watmough Radulpho Duxbury Willielmo Swire vel eorum alicui summam quindecim librar ' legalis monet Angl ' ad vel ante prim ' diem Decembr ' tunc prox ' sequen ' qui Arbitratores praedict ' judicaver ' praedict ' Robertum Radulphum Willielmum Swire sustinuisse in custag ' dampnis ratione cujusdam sectae sine causa per dict' Willielmum Holgate versus ipsos Robertum Radulphum Willielm ' Swire prosecut ' Et ulterius Arbitratores praedict ' ordinaver ' quod omnes sectae differenciae inter dict' Willielm ' Holgate ex una parte ipsos dictos Robertum Radulphum Willielmum Swire ex altera parte quae mot ' That all Suits should cease habit ' sive depend ' fuer ' ante diem dat' scripti Obligatorij praedicti absolut ' cessarent vacuae forent determinarentur prout per idem arbitrium inter alia plenius liquet apparet Et praedict ' Robertus Radulphus Willielmus Swire protestando quod praedict ' Willielmus Holgate non observavit performavit perimplevit seu custodivit aliquod in arbitrio praedicto superius spec ' ex parte ipsius Willielmi Holgate observand ' performand ' perimplend ' seu custodiend ' A breach of Non-payment assigned in the Award In facto iidem Robertus Radulphus Willielmus Swire dicunt quod praedict ' Willielmus Holgate non solvit praedict ' Roberto Radulpho Willielmo Swire vel eorum alicui summam quindecim librarum super praedict ' primum diem Decembr ' tunc prox ' sequen ' dat' arbitrij praed ' quas eis vel eorum alicui super eundem diem solvisse debuit secundum formam effectum arbitrij praedict ' Et hoc parat ' sunt verificare unde pet ' Judic ' debitum suum praed ' unacum dampnis suis occone detenconis debiti illius sibi adjudicari c. Et praedict ' Willielmus Holgate dic ' quod placitum praed ' praedict ' The Defendant Demurs Roberti Radulphi Willelmi Swire modo forma superius replicand ' placitat ' minus sufficien ' in lege existit ad praedict ' Robertum Radulphum Williemum Swire ad acconem suam praed ' versus ipm̄ Willielmum Holgate habend ' manutenend quodque ipse ad replicaconem illlam modo forma praed ' placitat ' necesse non habet nec per legem terrae tenetur respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' replicaconis in hac parte Idem Willielmi Holgate pet ' Judic ' quod praed ' Robertus Radulphus Willielm ' Swire ab accone sua praedicta versus eum habend ' praecludantur c. Et praed ' Robertus Radulphus Willielm ' The Plaintiff joyns in Demurrer Swire ex quo ipsi sufficien ' materiam in lege ad acconem suam praed ' versus praefat ' Willielmum Holgate habend ' manutenend ' superius replicando allegaver ' quam ipsi parat ' sunt verificare Quam quidem materiam praedict ' Willielm ' Holgate non dedic ' nec ad eam aliqualit ' respondet sed verificaconem illam admittere omnino recusavit iidem Robertus Radulphus Willielm ' Swire ut prius pet ' Judic ' debitum suum praed ' unacum dampnis suis occone detenconis debiti illius eis adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judic ' suum inde reddant dies dat' est partibus praedict ' hic usque à die Sancti Michaelis in un ' mensem de audiendo inde Judicio suo eo quod iidem Justic ' hic inde nondum c. Watmough versus Holgate al' AN Action of Debt upon a Bond of 40 l The Condition was to perform an Award to be made of all Matters between them The Defendant pleaded no Award made The Plaintiff Replied and set forth an Award to have been made de praemissis viz. That the Defendant should pay to the Plaintiff 15 l at or before the first day of December then next ensuing which the Arbitrator did judge the Plaintiff to have sustained in Costs and Damages by reason of a Suit without Cause commenced by the Defendant against the now Plaintiff And further the Award was That all Suits and Differences between the said parties which were depending before the Date of the Bond should cease and determine and in facto dicit that the Defendant had not paid the said 15 l upon the 1st day of December in the said Award mentioned And to this the Defendant Demurred It was Argued First That this Award was all of one side for it doth not appear that there was any Difference between the parties save the Suit upon which the Costs are awarded viz. 15 l and that was the Suit of the now Defendant and what benefit hath he by staying his own Suit and paying 15 l for Costs Secondly He assigns the Breach that the 15 l was not paid upon the 1st day of December so it might be paid before and the Award is to pay it ad vel ante primum diem Decembris It was Answered to the first That there might be well intended other Differences tho' not set forth Again For ought appears the Plaintiff in the Action mentioned in the Award might be subject to have Costs taxed at the prosecution of the then Defendant whereas this Award stops the Defendant from applying to the Court for Costs As to the second If Issue be taken upon solvit ad diem payment before the Day maintains the Issue The Court inclined that the Award was good Sed Adjornatur Humphreys versus Bethily Quod vide ante ultimo Termino THe Court now delivered their Opinions That the Doubleness in the Declaration was cured by Answering and no Exception can be taken to it upon the General Demurrer And the Case in the 1 Roll. Rep. 112. Sanders and Crowly is the same with this Judicium pro Quer. The Lord Lexington versus Clarke and his Wife Trin. 1 Willielmi Mariae Rot. 1539. IN an
may be sold Noell versus Robinson THe Plaintiffs Father being seised in Fee of a Foreign Plantation devised it to the Plaintiff and made the Defendant Executor The Executor let it for years reserving Rent in Trust for the Plaintiff who now Exhibited his Bill to have his Rent The Defendant Confessed the Devise of the Testator and the Lease made by himself but said That great Losses had fallen upon the Testator's Estate and that he paid and secured which is payment in Law for the Debts of the Testator to â— great value and that he hoped he should be permitted to reimburse himself by the receipt of this Rent notwithstanding the mentioning of the Trust as aforesaid The Cause came to Hearing and the Court Decreed for the Plaintiff For altho' a Legatee shall refund against Creditors if there be not Assets and against Legatees all which are to have these proportion where the Assets fall short yet the Executor himself after his Assent shall never bring the Legacy back But if he had been sued and paid it by the Decree of this Court the Legatee must have refunded as if a Debtor to a Bankrupt pays him voluntarily he must pay him over again Otherwise of payment by Compulsion of Law Note My Lord Chancellor said That if they give Sentence for a Legacy in the Ecclesiastical Court a Prohibition lies unless they take Security to Refund Note also in this Case that tho' it be an Inheritance yet being in a Foreign Country 't is looked upon as a Chattel to pay Debts and a Testamentary thing It was Objected That this could not be taken for an Assent for if so how could the Executor let it But the Court said that it did tantamount to an Assent and being a lawful Act a little matter will be taken for an Assent Anonymus A Bill was Exhibited by the Assignees of Commissioners of Bankrupts to have an Account against the Defendant of the Bankrupts Estate The Defendant pleaded that he was but Servant to the Bankrupt and had given an account of all to his Master and likewise had been Examined before the Commissioners upon the whole Matter Vpon Hearing his Plea my Lord Chancellor Over-ruled it and Ordered that he should Answer Anonymus IF a man makes a Lease or devise an Estate for Years he being seised of an Estate of an Inheritance for payment of Debts if the Profits of the Lands surmount the Debt all that remains shall go to the Heir tho' not so exprest and albeit it be in the case of an Executor Barney versus Tyson THe Case was thus The Plaintiff in the Life of his Father being about 26 years of Age and having occasion for Money prevails with the Defendant to let him have in Wares to the value of 400 l and gives him Bond for 800 l to be paid if he survived his Father at which time an Estate would befall him of 5000 l per Annum and he having survived his Father he preferred his Bill against the Defendant to compel him to take his Principal Money and Interest And it was proved in the Case that the Defendant was Informed at the time of this bargain that the Father was ill and not like to live and he did live but a year and half after and that one Stisted a man very Infamous was employed in the transaction of this Bargain And the Plaintiff obtained a Decree in the time of the Lord Chancellor Fynch And now upon a Petition to the Lord Keeper North the Defendant obtained a Re-hearing And in maintenance of the Decree it was alledged that the hazard which was run was very little and such Bargains with Heirs were much to be discountenanced The Lord Keeper affirmed the Decree but said that he would not have it used as a President for this Court to set aside mens Bargains But this Case having received a Determination and the Defendant having accepted his Principal Money and Interest thereupon and there being only a slight Omission in the Enrolment of the Decree which if it had been done had prevented a Re-hearing and the Defendant having delayed his Application to him by Petition he would not now set the Decree aside Termino Paschae Anno 35 Car. II. In Cancellaria Hodges versus Waddington THe Case was thus An Executor wasted the Testator's Estate and made his Will wherein he devised divers of his own Goods and made his Son Executor Afterwards a Suit was commenced against the Son to bring him to an Account for the Estate of the first Testator which was wasted and pending that Suit the Son after the Bill brought against him by the Legatee of his own Goods delivered them to the Legatee and assented to the Legacy After which upon the Account against the Son it appeared that the first Executor had wasted the Goods of the first Testator to such a value And then the party at whose Suit the said Account was and who was to have the benefit thereof together with the Son and Executor of the first Executor preferred a Bill against the Legatee of the Goods to make him Refund and obtained no Relief especially for that he had made the Executor Plaintiff who should not be admitted to undo his own Assent But liberty being given to bring a New Bill against the Legatee and the said Executor the Cause came to Hearing and it was Decreed That the Legatee should Refund So that one Legatee that is paid shall not only Refund against another but a Legatee shall Refund against a Creditor of the Testator that can charge an Executor only in Equity viz. Upon a wasting by the first Executor But if an Executor pays a Debt upon a Simple Contract there shall be no Refunding to a Creditor of an higher Nature Note also The Principal Case went upon the Insolvency of the Executor Anonymus A Bill was brought setting forth a Deed of Settlement of Lands in Trust and to compel the Defendant who was a Trustee therein nominated to Execute an Estate The Defendant by Answer says That he believed that there was such a Deed as in the said Bill is set forth c. And upon the Hearing they would have read a Deed for the Plaintiff tho' not proved but upon a Commission taken out only against another Defendant to the Bill supposing it to be Confessed by the Answer But the Court would not permit the Reading of it for the Confessing goes no further than what is set forth in the Bill and will not warrant the Reading of a Deed produced altho' it hath such Clauses in it Anonymus A Bill was preferred against one to discover his Title that A.B. might be let in to have Execution of a Judgment The Defendant pleaded That he was a purchaser for a valuable Consideration but did not set forth That he had no Notice of the Judgment And it was Over-ruled for 't is a fatal Fault in the Plea Bird versus Blosse THe Case was thus One wrote a Letter signifying