were Six years Arrear of a certain Salary belonging to the said Office according to the Agreement aforesaid due and payable to the Plaintiff which he the Plaintiff had not received and the Defendant had not paid unto him licet saepius requisitus and so the Defendant had broke his Covenant The Defendant pleaded in Bar That he had from the time of the Agreement aforesaid to the time of the Writ brought permitted the Plaintiff to receive yearly the Profits of the said Office according to the said Agreement absque hoc that the Defendant had or received any part of the Profits of the said Office To this the Plaintiff Demurred and shewed for the Cause of Demurrer that the Defendant had traversed Matter not alledged And upon the first Argument Judgment was given for the Plaintiff by the whole Court that the Traverse was not good And the Court held that upon this Agreement the Defendant was not bound to pay the Money grown due for the Profits of the Office to the Plaintiff but was only restrained from intermedling with them and to leave them to be received by the Plaintiff Bush versus Buckingham Bedf. ss Debt upon a Bond. THOMAS Buckingam nuper de Shenly in Com' Bucks Yeoman alias dict' Thomam Buckingham de Houghton Reg ' in Com' Bedford ' Yeoman sum ' fuit ad respondend ' Mariae Bush Vid ' de placito qd ' reddat ei centum libras quas ei debet injuste detinet c. Et unde eadem Maria per Robertum Jenkin Attorn ' suum dic ' qd ' cum praedictus Tho' undecimo die Maii Anno Dom ' milliesimo sexcentesimo octogesimo sexto apud Luton ' per quoddam scriptum suum obligatorium concessisset se teneri praefat ' Mariae in praedictis centum libris solvend ' eidem Mariae cum inde requisit fuisset praedictus tamen Thomas licet sepius requisit ' praedictam centum libras eidem Mariae nondum reddidit Set ill ' ei hucufque reddere contradixit adhuc contradic ' unde dic ' qd ' deteriorat ' est dampnum habet ad valenc ' viginti librarum Et inde produc ' Sectam Profert in Curia scriptum c. Et profert hic in Cur ' scriptum praedictum qd ' debitum praedictum in forma praed ' testatur cujus dat' est die anno supradict c. Defendant craves Oyer of the Condition Et praedictus Thomas per Humfrid ' Taylor Attorn suum ven ' defend ' vim injur ' quando c. Et pet ' audit ' scripti praedicti ei legitur c. pet ' eciam audit ' conditionis ejusdem scripti ei legitur in hec verba The Condition of this Obligation is such that if the above bound Thomas Buckingham and William Holk or either of them they or either of their Heirs Executors Administrators or Assigns or any of them do or shall well and truly pay or cause to be paid unto the abovenamed Mary Bush her Executors Administrators or Assigns or any of them the full and just sum of fifty two pounds and ten shillings of good and lawful Many of England in or upon the twelfth day of November next ensuing the date hereof without fraud or further delay That then this present Obligation to be void and no effect or else to remain in full force and vertue And pleads the Statute of Usury Quibus lectis audit ' idem Thomas dic ' qd ' ipse de debito praedict virtute scripti praedicti onerari non debet quia dic ' qd ' per quendam Actum in Parliament ' Dom ' Caroli Secundi nuper Reg ' Angliae inchoat ' tent ' apud Westm ' in Com' Midd ' vicesimo quinto die Aprilis Anno Regni sui duodecimo edit ' provis inter alia inactitat ' fuit Authoritat ' ejusdem Parliament ' qd ' nulla persona sive personae quaecunque ab post vicesimum nonum diem Septembris Anno Dom ' millesimo sexcentesimo sexagesimo super aliquem contractum ab post praedictum vicesimum nonum diem Septembris caperet seu caperent direct ' vel indirect ' pro accommodatione Anglicè leave aliquorum denar ' mercimoniorum merchandizarum vel al commoditat ' quorumcunque ultra valor ' sex librarum pro differend ' Anglicè forbearance centum librarum pro Anno sic secundumistam ratam pro majori vel minori summa vel pro longiori seu breviori tempore Et qd ' omnes obligationes Anglicè Bonds contract ' assuranc ' quecunque post tempus praedict ' fact ' pro solutione alicujus principal ' summae pecun ' accommodand ' vel convent ' performari super vel pro aliqua usuria Anglicè Vsury super quas vel per quas reservat ' vel capt ' foret ultra ratam sex librarum in centum libris ut praefertur penitus vacuae forent prout per eundem Actum in t ' al' The Usurious Contract plenius liquet praedictus Thomas dic ' qd ' post praedict ' vicesimum nonum diem Septembris in Actu praed ' superius mentionat ' ante confection ' scripti obligat ' praedict ' scilicet praed ' undecimo die Maii An' Dom ' milesimo sexcentesimo octogesimo sexto supradict ' apud Luton praed ' in t ' praefat ' Mariam ipsum Tho' corrupt ' contra form ' Statut ' predict ' agreat ' concordat ' fuit qd ' praed ' Maria accommodaret eidem Thomae quinquagint ' libras eidem Mariae praedict ' duodecimo die Novembris in Conditione praed ' spec ' resolvend ' qd'que praedict ' Thomas pro lucro interesse differendo dando diem solutionis praedict ' quinquaginta librarum per tempus illud solveret praefat ' Mariae summam duarum librarum decem solidorum Qd'que pro securitat ' solutionis tam praedictarum quinquata librarum de principal ' debito praed ' quam praedict ' duarum librarum decem solidorum ipse idem Thomas per ' scriptum suum obligatorium debit ' legis forma conficiend ' deveniret tent ' obligat ' The Bond to be given thereupon praefat ' Mariae in centum libris cum conditione eidem subscript ' pro solutione quinquaginta duarum librarum decem solidorum super praedict ' duodecimum diem Novemb ' tunc prox ' sequen ' idem Thomas ulterius dic ' qd ' in performatione corrupt ' concordiae praedict ' in t ' ipsam Mariam praefat ' Thomam in forma praed ' habit ' fact ' praedict ' Mariae postea scilicet praedict ' undecimo die Maii Anno Dom ' The Mony lent millesimo sexcentesimo octogesimo sexto supradicto apud Luton ' praedict ' accommodavit eidem Thomae quinquaginta libras resolvend ' eidem Mariae praedicto
the 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
the Defendant shew Cause why he should not accept of a Declaration upon payment of Costs Termino Paschae Anno 22 Car. II. In Banco Regis Anonymus IF there be several Contracts between A. and B. at several times for several sums Prohibition each sum under 40 s and they do all amount to a sum sufficient to Entitle the Superiour Court they shall be there put in Suit and not in a Court which is not of Record And so it was resolved in the Case of the Savoy Court and Stanford 24. C. 2. Also it was said That if a Man at divers times Steals things all which amount to above 12d 't is Felony Capital In an Account after a Quod computet the Court Assigns Auditors and they sit upon and return the Account when they will for day is not given them and they give the Parties in the interim what time they please but if the Defendant delays they return it to the Court and Process goes out against him Nota Memorandum On Tuesday April the 26th Steven Mosdel to whom Mr. Lenthal had granted the Office of Marshal of the Kings-Bench for life was sworn Marshal The Oath was this Viz. You shall swear that during the time of your being Marshal you shall well and truly use exercise and behave your self in the said Office you shall encrease no Fees and in all things shall do your Duty in the said Office c. It was resolved That the said Stephen Mosdel could not afterwards practise as an Attorney of this Court and that Mr. Lenthall Marshall in Reversion had no Priviledge Anonymus A Promise was made to give 1000 l to one for curing of his Eyes and an Assumpsit is brought Vpon this the Jury may give less than 1000 l Damages if they think fit Sir W. Mewes versus Mewes A Title of Land was tryed out of the proper County upon a feigned Wager Whether well conveyed or no this is the Course of Issues directed out of Chancery Note In this Case a Bill in Chancery was given in Evidence against the Complainant though held to be but of slight moment Smiths Case SMith and other Commissioners of Sewers which sate at White-Chappel were brought in upon an Attachment awarded against them for a Contempt of this Court. And the Case was thus A Certiorari was lately sent and delivered to them out of this Court upon Special direction and recommendation by the King and Council before whom the Business had been agitated to remove hither Certain Orders and Proceedings of theirs in order to a Tryal of the Right of the Matter in Question At first they did not allow the Certiorari but afterwards having allowed it they proceeded de novo upon the same Matter and made an Order again which certain persons being the same persons who procured the Certiorari refusing to obey the Commissioners fined them 10 l apiece Then a second Certiorari was taken out and delivered to them after which they imprisoned persons for not executing and obeying of a Warrant made upon their second Order and for speaking Contemptuous words of the Commissioners and fined them 5 l apiece Being now questioned by the Court concerning these Contempts and Misdemeanours They said they did this wholly by the advice of their Counsel Mr. Ofley who being in Court received a severe Reprimand therefore and the Commissioners were committed to Prison About the Fortnight afterwards having made and Filed their Return they were brought into Court to receive the Sentence of the Court. And then it was said by them and Coleman their Counsel that they would not urge any thing in justification of their not returning their Proceedings they only offered that what they did was by the advice of their Counsel and that the Clause in 13 Eliz. cap. 9. was so penned as to give a great occasion of doubt in this particular which Clause upon their desire was read And is this And be it further Enacted c. That from henceforth the said Commissioners of Sewers nor any of them shall not be compelled or compellable to make any Certificate or Return of the said Commissioners or any of them or of any of the Ordinances Laws or doings by the Authority of any of the said Commissions nor shall not have any Fine Pain or Amerciament set upon them or any of them or any ways to be molested in Body Lands or Goods for that Cause and after the reading thereof the Court delivered themselves seriatim as followeth Moreton This is a great Offence and Contempt The Commissioners of Sewers and their Proceedings are subject to the Jurisdiction of this Court Sir Henry Mildmayes Case 2 Cro. 336. and Sir H. Hungates in our Memory If Commissioners of Sewers or any other inferiour Jurisdiction excéed their Commission we may reform and restrain them and it nay we prohibit them in Cases where They have no Jurisdiction of the matter Many presidents are with us in the present Case And we cannot answer our Duty to the King without taking notice of and punishing this Offence Therefore my Opinion is That for their not obeying of the first Writ they be fined 40 Marks apiece and for their not obeying of the second Writ 20 Marks apiece Rainsford This is indisputably an Offence and Contempt and the greater for that it was seconded It is aggravated too in that the Commissioners proceeded after they had allowed the Certiorari and that they fell upon and shewed their Indignation against those persons who only pursued the Kings Authority and that this was in a Case which was recommended by the King and Council to which Recommendation the Commissioners were Privy they had contrary advice from other Counsel then there but they would hearken to that advice which pleased them best Obedience is that Ligament of the Government without which all will be turned into Anarchy and Confusion Without betraying the Trust reposed in us by the King and violating of our Oaths we cannot omit to punish this therefore I agree the Fines The Reason of the Fines is the disobeying of the Writs the Reason of their disproportion is to resemble the Measures the Commissioners observed towards those persons whom they unduly fined Twisden It was resolved in 23 Car. That this Statute hath no reference to this Court and that this Clause extends only to Certificates and Returns into Chancery the Statute speaks of Supersedeas c. which issue out of the Court of Chancery only for this Court does not nor ever did send out Supersedeas's but this Court sends out Certiorari's which are to bring the business before the King here and the words of them are quia coram nobis terminari volumus non alibi What should move that Gentleman to give such advice as he did I cannot imagin I suppose there is more in the matter than we know and 't is a strange thing that these Commissioners should ask Counsel whether they should obey the Kings Writ or no Especially when it
went out upon such particular direction and recommendation 'T is some mitigation that they had such advice of Counsel otherwise I should not stick to fine them 100 l apiece We are bound to take care of the support of the Government I agree the Fines Keeling Chief Justice It is provided by 23 H. 8. cap. 5. that the Laws Acts c. to be made by the Commissioners of Sewers should stand good and effectual c. no longer than the Commission endured except they were Engrossed in Parchment and certified under their Seals into the Kings Court of Chancery and then the Kings Royal Assent to be had to the same c. But that was altered by this of 13 Eliz. whereby it is Enacted That their Laws c. should stand and continue in force without any such Certificate to be made thereof into the Chancery and then a little after in this Statute follows the Clause which hath been read and that refers wholly to Certificates or Returns to be made into the Chancery for the purpose aforementioned 'T is plain the Clause refers not to this Court for it speaks of returning their Comissions now their Commissions were never returnable into this Court this Court cannot be ousted of its Jurisdiction without special words here is the last Appeal the King himself sits here and that in person if the pleases and its Predecessors have so done and the King ought to have an account of what is done below in inferiour Jurisdictions 'T is for the avoiding of oppressions and other mischiefs To deny and oppose this and to set up uncontrolable Jurisdictions below tends manifestly to a Commonwealth and we ought and we shall take care that there be no such thing in ours days I know there is a great clamour so soon as an inferiour Jurisdiction is touched and t is thought we deal hardly with them But unless we will suffer this Court to be dissolved and the Prerogative of the King to be encroached upon we must oppose our selves to these Proceedings I have a great respect for these persons the Commissioners but 't is but usque ad aras When the Jurisdiction of the Crown the Justice of the Kingdom and the Duty of my place is concerned I ought not to spare my best Friends Some Presidents have been cited in this Case and many more might there are two memorable Records cited 1 Cro. concerning persons which contemned the Kings Writ and their Penalties I agree the Fines and hereby we do not go so high as our Predessours have gone Hundreds of years ago Nota This Proceeding and Sentence of the Court was upon Confession of the Commissioners the Court forthwith making an Entry and Record of their Confession In an Assize only where the Writ is Returnable into this Court it is apud Westmonaster ' but in all other cases where Writs are Returnable out of Chancery into this Court they are Returnable Ubicunque c. The King versus Jane D SHe was Indicted for Stealing of several things and pleading Not Guilty and a Jury sworn to try her the Witnesses not appearing were suspected to be tampered with by the Prisoner and the Jury were discharged and the Trial put off Vid. 1 Inst 227. b. Wise's Case AN Order of the Justices of the Peace for the maintenance of a Poor Woman was Confirmed tho' it appeared she was able of Body to work But the Justices of the Peace are Iudges of that Cousin's Case ERror to Reverse a Fine for Infancy Now 't was moved that the party being in Court she might be inspected and the Inspection Recorded and there was produced and read a Copy of the Register Book sworn to be a true one and several Affidavits of her Age. Curia Let the Inspection be now Recorded the Issue of her Infancy may be tryed at any time hereafter tho' she comes of Age. Nota A Prisoner in the Kings-Bench that lyes in the Common Side pays no Fees for his Lodging Anonymus IT was said by Twisden That if two submit to an Award this contains not a Reciprocal Promise to perform but there must be an Express Promise to ground an Action upon Nota A Fine which was set two or three Terms since was this Term set aside because of some surreptitious Practice and Misinformation to the Judge Auberie versus James ASsault Battery and Wounding The Defendant Iustified for that he being Master of a Ship commanded the Plaintiff to do some Service in the Ship which he refusing to do he moderate castigavit the Plaintiff prout ei bene licuit The Plaintiff maintains his Declaration absque hoc quod moderate castigavit and Issue was taken thereupon Negativum infinitum After Verdict for the Plaintiff it was moved in Arrest of Judgment that the Issue was not well joyned for non moderate castigavit doth not necessarily imply that he did Beat him at all and so no direct Traverse to the Defendants Iustification which immoderate castigavit would have been But De injuria sua propria absque aliqua tali causa would have been the most formal Replication But the Justices held that it would serve as it was after a Verdict tho' the Statute at Oxford 16 Car. 2. the last and most aiding Act of Jeofails be * Which was a mistake expired and that de injuria sua propria not adding absque aliqua tali causa hath been held good after a Verdict Green versus Cubit ERror to Reverse a Judgment given in the Court at Norwich in Debt upon a Bond where the Plaintiff declared that the Defendant per scriptum suum Obligatorium at a certain place there became bound c. The Defendant pleaded that he was in Prison scriptum praedictum was obtained by Duress which was found against the Defendant and Judgment given accordingly The Errors assigned were first Because he declares of a Writing Obligatory and both not say sigillo Defendentis sigillat ' 3 Cro. 571. Declaration in Covenant was held Insufficient for the same cause Secondly There is no place where the Defendant alledgeth himself to be in Prison and being in an Inferiour Court it shall not have any aid of Intendment But the Court Over-ruled the first because the Plea of the Defendant confesses the Deed and the second because the Imprisonment must of necessity refer to the place where the Plaintiff declares the Bond to be made For the Defendant pleaded that he was then in Prison wherefore they affirmed the Judgment 3 Cro. 55. 2 Cro. 420. 3 Cro. 737. 19 H. 6. 15. 19. Baldway and Ouston DEbt upon a Bond the Condition was That the Defendant should pay such Costs as should be stated by two Arbitrators by them chosen He pleaded that none were Stated The Plaintiff Replied That the Defendant did not bring in his Bill To which it was Demurred For tho' if the Defendant were the cause that no Award was made it was as much a forfeiture of his Bond as not to perform
any Debt which was due to the Testator tempore mortis suae might be attached and then sets forth according to the common form how this 320 l was attached c. and Avers that there were no other Controversies Differences or Matters between the Plaintiff and Defendant but what concerned the Testator of the Plaintiff and him as his Executor only The Plaintiff replies That the Defendant had not paid the 320 l according to the Award c. upon which the Defendant Demurred And whether this Money were Attachable as a Debt due to the Testator tempore mortis suae was the Question It was argued by Winnington That it was For it appears by the Averment that it was awarded to be paid meerly upon the Testators account and it is but as it were a reducing the Testators Debt to a certainty for an Award being no Record or Specialty will not alter the nature of the Debt and that clearly it should be Assets in the Executors Hands and the Custom of London was to have a liberal Construction Pemberton contra It doth not appear That there was any Debt due to the Testator There might be Covenants or other Matter between them which shall be rather intended than Debt as strongest against the Plaintiff if there were the nature of the Debt is altered for an Award may be pleaded in Bar to an Action brought upon the Original Debt Also this must have béen sued for in the Debet and Detinet and not in the Detinet only so it is not a reducing the Debt to a certainty as where an account is made upon Debts by simple contracts or where an Executor gives time for payment of a Bond due to the Testator this is still Attachable 1 Rolls 551. He denied it to be Assets If it were the Administrator de bonis non might sue for it after the Executors death which clearly he could not do and the Executor was chargeable only in proportion to the Debt extinguished and not according to the Sum Awarded or at least it could not be Assets before recovered if it were Assets it did not follow it should be Attachable for if an Executor Recovers in Trespass for taking away the Testators Goods the Damages shall be Assets yet they are not Attachable So Damages recovered upon Covenant made to the Testator He said it would be very inconvenient that this Money should be attached for the Executor was liable to a Devastavit upon this matter and yet should have no remedy for the Sum Awarded Again It would be Attachable in two respects both as the Executors Debt for so clearly it is and as the Testators Debt and the Bond for performance would be Attachable for the Executors Debt and the Sum Awarded for the Testators He said all Customs ought to be taken strictly and this was clearly out of the words as being no Debt due to the Testator tempore mortis suae And here it is pleaded That it was Commanded by the Court to the Officer to Attach the Defendant by a Debt due to the Testator at the time of his Death so no Authority to Attach this Debt and if it were by Law Attachable the Command ought to have béen Special The Court were all of Opinion That this was not Attachable as the Testators Debt for then the Administrator de bonis non might Sue for it And they held it to be like the Cases where the Executor takes Bond for a Debt due to his Testator or where he sells the Goods the Money for which they are sold cannot be Attached and here the Award is made of this Sum in Consideration of conveying to the Defendant the Goods of the Testator and releasing of his Debts which séems to be all one with the other Cases And so they gave Iudgment for the Plaintiff Termino Paschae Anno 23 Car. II. In Banco Regis Error A Judgment out of an inferiour Court was reversed because being by default the enquiry of Damages was only by two Jurors and Custom alledged to Warrant it And it was resolved by the Court That there cannot be less then twelve though the Writ of Enquiry saith only per Sacramentum proborum legalium hominum and not duodecim as in a Venire Note There were divers Recognizances take before the Lord Chief Justice Keeling who died before his Hand was set to them It was moved by Coleman that they might be Filed But the Court said a Certiorari must go to his Executors to certifie them and doubted whether they were compleat Records If a Warrant of Attorney be given after the continuance day to enter up a Judgment as of the Term preceding this may be well enough if it be dated within the Term but it cannot be so if such a Warrant be given to confess a Judgment generally and dated after the Term. Anonymus A Prohibition was prayed by one who being a Churchwarden was tendred an Oath by the Court Christian to present according to the Bishops Articles which he refusing to take was Excommunicated Now for that some of the Articles were to present Filthy Talkers Revilers and Common Sowers of Sedition amongst Neighbours which were general Terms and might be understood to comprehend things out of their Iurisdiction the Court conceived a Prohibition ought to go as to them But he should have first pleaded there quod non tenetur respondere as to those matters and upon their refusal to have prayed a Prohibition Elpicke versus Action AN Action of Trover was brought de diversis vestimentis And held not to be good because not expressed what kind of Garments But 7 Jac. Emery's Case where Trover was brought for a Library of Books and held to be good without expressing what they were because to set down the particular Books would make the Record too prolix Vid. 3 Cro. 164. and Pl. Com. where a man pleaded that he was chosen Knight of the Shire per majorem numerum and held to be good Barnard versus Michel IN an Action of Debt the Plaintiff declared upon a Deed comprehending divers Covenants for the performance of which the Defendant obliged himself in the penalty of 40 l and sets forth that the Defendant had broke the Covenants The Defendant pleaded non est factum and it was found for the Plaintiff And it was moved in Arrest of Judgment That though the Issue was found for the Plaintiff yet he having assigned no Breach no Cause of Action appeared upon the Record so he could have no Judgment For if the Declaration be insufficient let the Defendant plead what he will yet Iudgment shall not be given against him Indeed if the Action had béen brought upon a Bond Conditioned for the performance of Covenants and non est factum had béen pleaded no Breach needed to have been assigned for then the Declaration is only upon the Bond without mentioning any thing of the Condition But here the Breach of the Covenant is as it were a Condition precedent to
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
Discretion tion of the Court to grant Restitution even after a Traverse put in yet now since the Statute of Eliz. where such Plea is tendred the Court cannot grant a Restitution tho' they would in this Case if by Law they might for the party that made this Entry had lost the Land just before by Verdict in an Ejectment and by this means the effect of it should be disappointed Note The Indictment wanted Vi armis for it was pacifice intravit sine Judicio disseisivit à possessione expulit amovit But on the other side it was said First That the Entry being pacifice it was not the course to lay it Vi armis Secondly That 37 H. 8. cap. 8. supplied the defect of Vi armis in an Indictment But as to the latter the Court were of Opinion that the Statute supplied only the lack of the words gladiis baculis cultellis as are mentioned in the Statute Vid. the Stat. Anonymus A Suit for a Pension may be in Ecclesiastical Court tho' by Prescription but if it be denied to be time out of mind then a Prohibition is to go so that the Prescription may be tried at Law as in a Modus decimandi mutatis mutandis It was said by the Court that two might joyn in a Prohibition tho' the Gravamen was several but they must sever in their Declarations upon the Attachment Termino Sancti Hillarij Anno 26 27 Car. II. In Banco Regis Anonymus IN Error the Writ was Teste the 30th of November last and Retornable in Parliament the 13th of April next the Day to which the Parliament was Prorogued The Defendants Counsel desired the Rule of the Court for the taking out of Execution supposing this Writ of Error was no Supersedeas and alledged that the late Rule made in the House of Lords did not extend to their Case for that was That all Causes there depending should not be discontinued by the intervening of a Prorogation but this Case will not be there depending before the Return of the Writ In 3 H. 7. 19. the Court of Kings-Bench would not allow a Writ of Error into the Parliament until some Error was shewn to them in the Record lest it should be brought on purpose to delay Execution In Bulstrode's Reports a Writ of Error Returnable the second Return of the Term was held to be no Supersedeas because it seemed an affected delay that it was not made Returnable the first Return Hale It has been taken that a Prorogation determined a Cause depending in Parliament by a Writ of Error but the Lords have lately Declared otherwise But that comes not to this Case the Writ not being Returned A Writ of Error Returnable ad proximum Parliamentum is not good but otherwise if they are summoned or prorogued to a Day certain If the Day of the Session had been a Year hence it would be hard a Writ of Error should stay Execution and the same Reason where the whole Term intervenes A Writ of Error did bear Teste 10 Nov. and was Returnable 1 Nov. proximè futur ' and the Record was sent into the Exchequer Chambet and a Mittimus Endorsed upon the Roll here And it was Resolved that Execution might be taken out because of the long Return Secondly That tho' there were Mittimus upon the Roll yet the Record remained here until the Return of the Writ to all purposes And the Opinion of the Court was that the Writ of Error was no Supersedeas But they would make no Rule in it because they said it was not Iudicially before them but the party might take out Execution if he thought fit And then if the other Side moved for a Supersedeas they should then Resolve the Point Note Hale said in an Assumpsit for Money upon the Sale of Goods upon non Assumpsit the Defendant might give in Evidence an Eviction of the Goods to mitigate the Damage and in all Assumpsits tho' upon certain Contracts the Jury may give less Damages than the Debt amounts unto as he said was done in a Case where a man promised to give a Straw for every Nail in every Horses Shoe doubling every time and they gave in Damage but the Value of the Horse tho' as the Bargain was made it would have come to above 100 l Lomax versus Armorer A Writ of Error was brought to Reverse a Judgment in Dower given in the Court of Newcastle The Error assigned was because the Proceeding was by Plaint and no Special Custom certified to maintain it As in London and Oxford they have Assizes of Fresh Force by Plaint The Court held it to be Erroneous for this Cause but would not determine whether it might not be good upon a Special Custom 1 Rolls 793. Pl. 11. Anonymus A Mandamus was granted to the Archdeacon of Norwich to Swear a Churchwarden upon surmize of a Custom That the Parishioners are to choose the Churchwardens and that the Archdeacon refused him notwithstanding that he was Elected according to the Custom The Archdeacon Return'd that non sibi constat that there is any such Custom which Form is not allowable for it ought to be positive whereupon an Action might be grounded and that by the Canon the Parson is to choose one c. The Court said that Custom would prevail against the Canon and a Churchwarden is a Lay Officer and his Power enlarged by sundry Acts of Parliament and that it has been Resolved that he may Execute his Office before he is Sworn tho' it is convenient he should be Sworn and if the Plaintiff here were Sworn by a Mandate from this Court they advised him to take heed of disturbing him Noy Rep. 139. Anonymus AN Assumpsit was brought against an Executor for that the Testator being Indebted to the Plaintiff he did ad requisitionem of the Defendant come to Account with him upon which there appeared to be so much due to the Plaintiff which he promised to pay After Verdict the Judgment was de bonis propriis and it was moved that it ought to have been de bonis testatoris For the Accounting with him is little more than telling him what is due and this might make an Executor afraid of Reckoning with any of his Testators Creditors The Court said that the Accounting upon the Defendants Request which was more than the Plaintiff was bound to have done was a Consideration and after a Verdict they must intend an express Promise But Hale said If upon the Evidence it had appeared that there was no Intention to alter the Nature of the Debt as in case an Executor should say stay a while until the Testators Estate was come in and I will pay you he should direct the Jury to find against the Plaintiff that would in such case charge an Executor in his own Right Termino Paschae Anno 27 Car. II. In Banco Regis NOte In an Indebitat ' Assumpsit a man Promises in Consideration that
taken strictly and here upon the first Fine the Earl of Leicester had no Estate left in him Mich. 6 Car. 1. in Communi Banco the Case of Ingram and Parker which tho' it may not be a clear Authority for me yet I am sure it does not make against me The Case was Catesby levied a Fine to the use of himself in Tail with Remainders over reserving a Power to himself and his Son to Revoke by Deed c. as in our Case and his Son after his decease by Deed intended to be Enrolled conveyed to one and his Heirs and after levied a Fine and it was held no Revocation First Because he having an Estate Tail in him the Deed might operate upon his Interest Secondly Because it was but an inchoation of a Conveyance and not perfected and they held it no Revocation and that the Fine levied after tho' intended to be to the Vses of the Deed yet should extinguish the Power Hale Chief Justice Vpon the close and nice putting of the Case this may seem to be no Revocation for 't is clear that neither the Deed nor Fine by it self can revoke but quae non valent singula juncta prosunt The Case of Kibbett and Lee in Hob. 312. treads close upon this Case where the Power was to Revoke by Writing under his Hand and Seal and delivered in the presence of three Witnesses and that then and from thenceforth the Uses should cease It was there Resolved that a Devise of the Lands by Will with all the Circumstances limited in the Power should Revoke yet the Delivery was one of the Circumstances and the Uses were to cease then and from thenceforth Whereas a Will which could have not effect while his Death did strongly import that the meaning was to do it by Deed and yet there the Will alone could be no Revocation for clearly he might have made another Will after and so required other Matter viz. his Death to compleat it And in that Case there is another put That if a Deed of Revocation had been made and the party had declared it should not take place until 100 l paid there the operation of it would have been in suspence until the 100 l paid and then it would have been sufficient yet there it had been done by several Acts and of several Natures the Intention in things of this nature mainly governs the Construction In Terries Case it was Ruled That if A. makes a Lease for years to B. and then Levies a Fine to him to the end that he might be Tenant to the Praecipe for the suffering of a Recovery that after the Recovery suffered his Lease should revive 'T is true in the Case at Bar if the Fine had been levied first and then the Deed of Uses made afterwards the Power had been extinguished by the Fine and so no Revocation of that which had no being could have been by the Deed. Twisden What if before the Fine levied the Intent had been declared to that purpose Hale I doubt whether that would have helped it I cannot submit to the Opinion in Parker and Ingrams Case cited viz. That the Deed not being Enrolled should make no Revocation For in case of a Power to make Leases for life it has been always held by the best Advice that the better way is to do it by Deed without Livery tho' Livery by the Common Law is incident to a Lease for life and so Adjudged in Rogers's Case for Lands in Blandford forum in Moor's Rep. where Tenant for life hath power to make Leases for life and makes a Lease by Livery 't is there held a Forfeiture tho' I conceived not because by the Deed the Lease takes effect and so the Livery comes too late Therefore the omission of Enrolling the Deed in that case does not seem to be material but if that Opinion be to be maintained it is because the party had such an Interest upon which the Deed might enure without Execution of his Power and so rather construed to work upon his Interest But that Reason does not satisfie because such an Estate as was intended to be conveyed could not be derived out of his Interest therefore it should take effect by his Power according to Clere's Case in the 6 Co. So by the whole Court here the Deed and Fine taken together were Resolved to be a good Execution of the Power and Judgment given accordingly Richardson versus Disborow A Prohibition was prayed to the Ecclesiastical Court where the Suit was for a Legacy and the Defendant pleaded That there was nothing remaining in his hands to pay it and that he had fully Administred And producing but one Witness to prove it Sentence was given against him and after he Appealed and because their Court gave no regard to a single Testimony he prays a Prohibition But it was urged on the other Side That it being a Matter within their Cognizance they might follow the Course of their own Law And tho' there are diversities of Opinions in the Books about this Matter yet since 8 Car. 1. Prohibitions have been been denied upon such a Surmize Hale Where the Matter to be proved which falls in incidently in a Cause before them is Temporal they ought not to deny such Proof as our Law allows and it would be a great Mischief to Executors if they should be forced to take two Witnesses for the payment of every petit Sum And if they should after their Death there would be the same Inconvenience In Yelv. 92. a Prohibition was granted upon the not admitting of One Witness to prove the Revocation of a Will Which is a stronger Case because that entirely is of Ecclesiastical Cognizance Wherefore let there go a Prohibition and let the party if he please Demur upon the Declaration upon the Attachment Hob. 188. 1 Cro. 88. Popham 59. Latch 117. Pigot versus Bridge IN Debt upon a Bond Conditioned for performance of Covenants and the Breach assigned was in the not quietly enjoying the Land demised unto him The Defendant pleads that the Lease was made to hold from Michaelmas 1661 to Michaelmas 1668 and that paying so much Rent Half yearly he was to Enjoy quietly and shews that he did not pay the last half years Rent ending at Michaelmas 1668. To which the Plaintiff Demurred supposing that the words being to Michaelmas 1668. there was not an entire Half year the Day being to be excluded and that it was so held in the Case of Umble and Fisher in the 1 Cro. 702. Cur ' contra 'T is true in pleading usque tale Festum will exclude that Day but in case of a Reservation the Construction is to be governed by the Intent Anonymus NOte per Hale Debt doth not lye against the Executor of an Executor upon a Surmize of a Devastavit by the first Executor For First 'T is a Personal Tort for which his Executor cannot be charged Secondly 'T is such an Action of Debt as would
of the Proceeding after delivery of the Writ but the place only expressed where the Writ was delivered they thereupon overruled this Specious Exception Post Anonymus ONe A. B. was indicted of High Treason in Conspiring the death of the King and was brought to his Tryal at the Bar this Term and one D. being produced a Witness against him the said A. B. excepted against him for that the said D. had been Outlawed of Felony and Burned in the Hand and produced the Record The Witness to clear himself thereof produced the Kings Pardon whereby he was pardoned of the said Crimes Outlawry c. The Prisoner still objected that the Pardon did not restore him to his Credit and that notwithstanding he was no legal and competent Witness and prayed that he might have Counsel assigned him to argue the Point which was granted And the Court having heard his Counsel and conceived some doubt in the Matter they desired Mr. Justice Raymond to consult with the Judges of the Common Pleas to which Court Raymond immediately went and at his return reported to this Court the Opinion of the said Judges to be that he might be Sworn But if a Man convicted of Perjury were afterwards pardoned yet that would not enable him to be a Witness because it seemed to be an injury to the People to make them subject to the Testimony of such an one Vid. Hob. 81. a Pardon takes away poenam reatum so D. was Sworn Colepeppers's Case HE was indicted of High Treason for Raising Rebellion in Carolina one of the Kings Foreign Plantations in America whereupon he was this Term Tried at the Bar and acquitted Note By 35 H. 8. cap. 2. Foreign Treasons may be either tried by Special Commission or in the Kings Bench by a Jury of the County where that Court Sits Vid. Co. 1 Inst 261. b. Anonymus UPon a Tryal at Nisi prius at Guildhal before my Lord Chief Justice North in Trover and Conversion against an Executor de son tort ' The question came to be Whether the Goods having been taken in Execution upon a Judgment obtained against the Defendant by a Creditor of the Deceased should discharge him against the Plaintiff who brought this Action as Administrator And the Opinion of the Chief Justice was that this Execution was a good Discharge against another Creditor that should Sue him to whom he might plead Riens inter ses mains but it was no Discharge against an Administrator for Men must not be encouraged to meddle with a personsal Estate without Right but to prevent this mischief where the Party dies Intestate and there is contest about the Administration a Man may procure of the Ordinary Letters ad Colligendum Termino Sancti Michaelis Anno 32 Car. II. In Banco Regis Anonymus THe Statute of 43 Eliz. cap. 2. that enables Justices of Peace where a Parish is unable to provide for their Poor to Tax the neighbouring Parish the words being any other of any other Parish It was resolved that the Justices might impose the charge upon any of the Inhabitants of the neighbouring Parish and were not obliged to put a general Tax upon the whole Parish Anger versus Brower A Prohibition the Plaintiff declared upon an Attachment that at such a day and place he delivered the Writ to the Defendant and that he had prosecuted the Suit in the Court Christian since and upon Judgment by Nihil dicit and upon a Writ of Enquiry 100 l Damages were found and Judgment given and a Writ of Error brought The Error assigned was that the Plaintiff had laid no Venue where the Suing was since the Writ delivered which was the cause of Damage and not the delivery of the Writ so that place would not serve On the other side it was said that the Presidents were generally this way But to that the Court said that where those Presidents were there was no further Proceeding after Judgment as there seldom was when there was Judgment by Nihil dicit but here they reversed it for this Error Ante. The Case of the City of London concerning the Duty of Water Bailage THe Mayor and Commonalty of London brought an Indebitat ' Assumpsit against A. B. for 5 l for so much due to them for divers Tons of Wine brought from beyond the Seas to the Port of London at Four pence per Ton. Vpon Non Assumpsit pleaded and Trial at Bar divers Freemen of London were offered as Witnesses for the Plaintiff But the Counsel of the other side excepted to them for that they were Parties the Commonalty of London comprehending all the Freemen and likewise Interested On the other Side it was said that their Interest was in no sort to be considered it being so very small and remote a small Legatee hath been sworn to prove a Will In an Indictment against the County for not Repairing of a Bridge one of the County may be a Witness and this Justice Dolben said he had known in the Case of Peterburgh Bridge In a Robbery sur Statute de Winton the Plaintiff shall be Sworn a Witness and that for Necessity But it was Replied that there was no Necessity for they might have other Witnesses besides Freemen tho' perhaps with difficulty In an Action against the Hundred upon the Statute of Winton an Hundred or cannot be a Witness Scroggs Chief Justice Dolben and Raymond were of Opinion that they were Witnesses Jones contra And a Bill of Exceptions was tendred by the Counsel for the Defendant which the Court profered to Seal and to allow three or four days time to Draw it up But afterwards the Plaintiffs Counsel offered other Witnesses and set by their Citizens but the Verdict went for the Defendant Note It was said that the Lord Mayor could not Release the Action but under the Common Seal and that for a Duty or Charge upon a Corporation every particular Member thereof is not liable but Process ought to go in their Publick Capacity Note A Sheriff was ordered to attend the Court for demanding an excessive Fee for the execution of an Hab ' fac ' possess the Court saying there was none due Anonymus A Prohibition was granted to the Consistory Court of the Bishop of London for Citing one for calling of her Whore because such words by the Custom of London are punishable in the Courts of Law there Anonymus IF the Plaintiff dies after the Term began tho' before Judgment Entred yet Judgment may be Entred because every Judgment relates to the first Day of the Term. Anonymus A Motion was made to quash an Inquisition taken before the Coroners super visum corporis of one that killed himself which found that he was Felo de se But the Court were Informed that the party was Non compos mentis and that there had been an undue Practice by the Coroner of both which great Proof was made and upon that it was quashed Note The Court said that if the Body
given pro Quer. Termino Paschae Anno 34 Car. II. In Banco Regis Clayton versus Gillam IN Trespass for breaking and entering of his Close and Feeding c. and laying thereon certain pieces of Timber c. Et continuando Transgressionem praed ' After Verdict for the Plaintiff it was moved in Arrest of Judgment that one of the Trespasses viz. The laying of Timber could not be with a Continuando But it was resolved by the Court that continuando transgressionem praed ' shall be referred only to the Trespasses which may properly be said with a continuando But if the continuando had been expresly laid for that Trespass all would have been naught as it was resolved in a Case in this Court between Letchford and Elliot 16 Car. 2. The Earl of Shaftsbury versus Cradock IN an Action of Scandalum Magnatum for saying That the Earl was a Traytor c. The Action being laid in London where the words were supposed to be spoken It was moved in behalf of the Defendant that the Venue might be changed into some other Country and Affidavits were read that the Plaintiff had a great interest in the City and an intimacy with the present Sheriffs so that the Defendant could not expect an indifferent Tryal there and thereupon the Court did think fit to take the Cause out of London and gave the Earl the Election of any other County but he refused to Trie it elsewhere and would rather let the Action fall Curtis versus Inman IN Debt for the Penalty forfeited by the Statute of 5 Eliz. for using the Trade of a Grocer having not been Bound an Apprentice It was moved that the Action lies not in this Court because 21 Jac. cap. 4. Enacts That Actions popular shall be brought before Justices of Assize of the Peace c. But a Case was cited which was adjudged in this Court Hill 20 21 Car. 2. between Barns and Hughes which see before that such Action would lie But the Court notwithstanding in this Case said they would hear Arguments The Earl of Shaftsbury versus Graham al. IN an Action upon the Case in the nature of a Conspiracy the Declaration was That the Defendants did conspire to indict the Plaintiff of High Treason and for that purpose did Sollicit one Wilkinson and endeavoured to Suborn him to give false Testimony against the said Earl and an Indictment was offered at the Sessions at the Old Baily in London by the Defendant in pursuance of the said Conspiracy which Indictment the Grand Jury there found Ignoramus c. It was moved in behalf of the Defendants that whereas the Conspiracy was in the Declaration alledged to be in London that the Court would change the Venue and an Affidavit of the Defendants was produced That the Conspiracy alledged in the Declaration if there were any such was in Surry and not in London Note Wilkinson at the time of the supposed Conspiracy was a Prisoner in the Kings Bench and Affidavits were produced likewise to shew that the Plaintiff had such Interest with the present Sheriffs of London that an indifferent Jury was not like to be returned and that several Persons named to be material Witnesses for the Defendant durst not come to the Tryal if it were in London for fear of their Lives in regard they had been so affronted and abused when they were produced to prove the before mentied Indictment at the Old Baily and several other matters were alledged But it was insisted upon by the Counsel for the Earl That First The Venue uses not to be changed in Case of a Peer who is one of the Comites Regis and shall not be forced to Travel into another County to trie his Case as a Common Person Secondly That the present Case was local viz The preferring the Indictment at the Old Baily and where the Cause of Action ariseth in two Counties the Plaintiff hath his Election to bring it in either 7 Co. Bulwers Case But the Court declared that they were satisfied that no indifferent Tryal could be had in London they remembered they were affronted themselves when they were at the Old Baily upon the before mentioned Indictment And they resolved that they had a power to alter the Venue in the case of a Peer as it had been done about six years since in a Scandalum Magnatum brought by the Earl of Salisbury in this Court. And also they said that the Cause of Action here was Transitory viz. The conspiring and that the preferring of the Indictment was but in aggravation of Damages and the Action would lie altho' none had been offered or if preferred by other Persons than the Conspirators 'T is true when the matter ariseth in several plates the Plaintiff has Election but if there be like to be no indifferent Tryal in the place where it is laid 't is usual with this Court to change the Venue But the Court said they would not confine the Plaintiff to Surry if he could shew them cause that that was not an indifferent County Vid. 42 Ed. 3. 14. Termino Sancti Michaelis Anno 34 Car. II. In Banco Regis Denison versus Ralphson IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of a Sum of Money paid by the Plaintiff did promise to deliver to him ten Pots of good and Merchandizable Pot Ashes and that not regarding his Promise and to defraud him he delivered him ten Pots of Ashes not Merchandizable but mixed with Dirt c. And declared also that pro quadam pecuniae summa c. the Defendant vendidit to the Plaintiff ten other Pots of Ashes Warrantizando c. that they were good and Merchandizable and that he delivered them bad and not Merchandizable knowing them to be naught and to this Declaration the Defendant Demurred And it was argued by Sanders That here were Causes of Action of several Natures put into one Declaration and they required several Pleas viz. Non Assumpsit and Not guilty and therefore ought not to be joyned Thompson for the Plaintiff cited a Case between Matthews and Hoskin An Action against a Common Carrier and declared upon the Custom of the Realm and that he had not delivered the Goods and declared also in a Trover and Conversion upon the same matter and after Verdict upon motion in Arrest of Judgment the Action was adjudged well brought 16 and 17 Car. 2. Hill in this Court. So an Action against one for twenty shillings upon the Hire of an Horse and declared further that he abused him and held good Curia Those Cases were after Verdict Causes upon Contract which are in the Right and Causes upon a Tort cannot be joyned for they do not only require several Pleas but there is several Process the one Summons Attachment c. the other Attachment c. These upon the Contract lie for and against Executors the other not but these seem to be both upon the Contract viz. That
upon the Warranty as well as the other tho' the Declaration saith knowing them to be naught yet the knowledge need not to be proved in Evidence Debt upon a Bond and a mutuatus may be joyned in one Action yet there must be several Pleas for Nil debet which is proper to the one will not serve in the Action upon the Bond. Sed Adjornatur Termino Sancti Hillarij Anno 34 35 Car. II. In Banco Regis Anonymus A Quo Warranto was brought against divers persons of the City of Worcester why they claimed to be Aldermen c. of the said Corporation The Cause came to be tried at the Bar and a Challenge was made to the Jury in behalf of the Defendants for that the Jury men were not Freeholders The Court said that for Juries within Corporate Towns it hath hath been held that the Statutes that have been made requiring that Jurymen should have so much Freehold do not extend to such places for if so there might be a failer of Justice for want of such Jurymen so qualified but then to maintain the Challenge it was said by the Common Law Jurymen were to be Freeholders But the Court overruled the Challenge but at the importunity of the Counsel they allowed a Bill of Exceptions and so a Verdict passed against the Defendants and afterwards it was moved in Arrest of Judgment upon the Point But the Court would not admit the Matter to be Debated before them tho' divers Presidents of like nature were offered because they said they had declared their Opinions before and the Redress might be upon a Writ of Error Termino Sanctae Trinitatis Anno 35 Car. II. In Banco Regis Anonymus A Motion for a Prohibition to a Suit in the Ecclesiastical Court for a Churchwarden's Rate suggesting that they had pleaded That it was not made with the Consent of the Parishioners and that the Plea was refused The Court said That the Churchwardens if the Parish were Summoned and refused to meet or make a Rate might make one alone for the Repairs of the Church if needful because that if the Repairs were neglected the Churchwardens were to be Cited and not the Parishioners and a Day was given to shew Cause why there should not go to a Prohibition Termino Sancti Michaelis Anno 35 Car. II. In Banco Regis Gamage's Case ERror out of the Court of the Grand Sessions where in an Ejectment the Case was upon Special Verdict upon the Will of one Gamage who devised his Lands in A. to his Wife for Life Item his Lands in B. to his Wife for Life and also his Lands which he purchased of C. to his Wife for Life and after the decease of his Wife he gave the said Lands to one of his Sons and his Heirs And the Question was Whether the Son should have all the Lands devised to the Wife or only those last mentioned And it was Adjudged in the Grand Sessions that all should pass And upon Error brought it was Argued that they were Devises to the Wife in distinct and separate Sentences and therefore his said Lands should be referred only to the last On the other side it was said that the word Said should not be referred to the last Antecedent but to all If a man conveys Land to A. for Life Remainder to B. in Tail Remainder to C. in forma praedict ' the Gift to C. is void 1 Inst 20. b. It is agreed if he said All the said Lands to his Son and his heirs it would have extended to the whole This is the same because Indefinitum equipollet universali Et Adjornatur Herring versus Brown IN an Ejectment upon a Special Verdict the Case was Tenant for Life with several Remainders over with a Power of Revocation Levied a Fine and then by a Deed found to be Sealed ten Days after declared the Vses of the Fine which Deed had the Circumstances required by the Power The Question in the Case was Whether the Fine had extinguished the Power It was Argued that it had not because the Deed and Fine shall be but one Conveyance and the use of a Fine or Recovery may be declared by a subsequent Deed in the 9 Co. Downam's Case And a Case was Cited which was in this Court in my Lord Hale's time between Garrett and Wilson where Tenant for Life with Remainders over had a Power of Revocation and by a Deed under his Hand and Seal Covenanted to levy a Fine and declared it should be to certain Vses and afterwards the Fine was Levied accordingly This was held to be a good execution of the Power and limitation of the new Vses and the Deed and Fine taken as one On the other side it was Argued That the Deed was but an Evidence to what Vses the Fine was intended and the Power was absolutely revoked by the Fine Suppose he in Remainder had Entred for the Forfeiture before this Deed should the Defendant have defeated his Right Et Adjornatur Postea Hodson versus Cooke IN an Action upon the Case for commencing of an Action against him in an Inferiour Court where the Cause of Action did arise out of the Jurisdiction After a Verdict for the Plaintiff upon Not Guilty it was moved in Arrest of Judgment That it was not set forth that the Defendant did know that the Place where the Action arose was out of the Jurisdiction which it would be hard to put the Plaintiff to take notice of On the other side it was said that the party ought to have a Recompence for the Inconvenience he is put to by being put to Bail perhaps in a Case where Bail is not required above and such like Disadvantages which are not in a Suit brought here and the Plaintiff ought at his peril to take notice However to help by the Verdict And of that Opinion were Jeffreys Lord Chief Justice Holloway and Walcot but Withens contra The Court said that it could not be assigned for Error in Fact that the Cause arose out of the Jurisdiction because that is contrary to the Allegation of the Record neither is the Officer punishable that executes Process in such Action but an Action lies against the party And so it was said to be resolved in a Case between Cowper and Cowper Pasch 18 Car. 2. in Scac. when my Lord Chief Baron Hale sate there Anonymus AN Indictment of Perjury for Swearing before a Justice of the Peace that J. S. was present at a Conventicle or Meeting for Religious Worship c. It was moved to quash it because it did not appear to be a Conventicle viz. That there was above the number of Five and so the Justice of the Peace had no power to take an Oath concerning it and then it could be no Perjury To which the Lord Chief Justice said That Conventicles were unlawful by the Common Law and the Justices may punish Unlawful Assemblies And he seemed to be of Opinion that a man might be
Place assigned from whence the Venue should have come 348 350 No likelyhood of an Indifferent Tryal cause to change the Venue 365 Verdict See Assumpsit What Errors and Omissions are ayded after Verdict 34 100 108 109 114 126 Where a Special Verdict refers one Special Point to the Judgment of the Court all other matters shall be intended 118 After Verdict the Court shall admit any Intendment to make the Case good 123 Want of an averment of Levancy and Couchancy aided by a Verdict 165 Vse See Trust What Words and Considerations shall raise a Use 138 140 141 The use of a Fine or Recovery may be declared by a subsequent Deed 368 In Cases of Uses the Intention of the Parties ought to be pursued 373 374 378 Vsury The Statute against Usury expounded strictly in regard of Broakers 38 No Action of Debt lies for the Interest of Mony but it is to be recovered by Assumpsit in Damages 198 W. Wager of Law WHere admitted and where not 261 Indictment of Perjury will not lie upon an Oath in waging Law 296 Way High way and Private-way the Diversity and who shall repair 189 256 Whether an Indictment lies for stopping a Common Foot-way to a Church 208 Action on the Case for obstructing his way to his Wood 274 Wills A man cannot release a Debt by Will 39 Wills concerning the Guardianship of a Child and not to be proved in the Ecclesiastical Court but they may there prove a Will of Lands 207 Where Suits for Legacies given by Wills ought to be 233 The Effect of a Republication and Paroll Declaration 341 342 Witness See Evidence Statutes A Council Attorney or Sollicitor ought not to be examined against his Clyent because obliged to keep his Secrets 197 A Pardon of Felony though after burning in the Hand restores a man to be a Witness not so of Perjury 349 Whether a Freeman of a City may be a VVitness for that City 351 Writs A Fault in a Mean Process is aided by Appearance but if an Original should bear date on a Sunday the Appearance of the Party would not help it 7 Sr Peyton Ventris Kn t. Late one of the Justices of the Court of Com̄on Pleas. I Royly pinx H White sculp THE SECOND PART OF THE REPORTS OF Sir Peyton Ventris Kt. LATE One of the Iustices OF THE COMMON-PLEAS CONTAINING Select CASES Adjudged in the COURT of Common-Pleas in the Reigns of K. CHARLES II. and K. JAMES II. and in the Three first years of the Reign of His now Majesty K. WILLIAM and the late Q. MARY while he was a JUDGE in the said COURT With the Special PLEADINGS to the same ALSO Several CASES and PLEADINGS thereupon in the Exchequer-Chamber upon Writs of ERROR from the Kings-Bench Together with many remarkable and curious Cases in the Court of Chancery Whereto are added Three exact TABLES One of the Cases the other of the Principal Matters and the third of the Pleadings With the Allowance and Approbation of the LORD KEEPER and all the JUDGES LONDON Printed by the Assigns of Richard and Edward Atkyns Esquires for Charles Harper at the Flower-de-Luce and Iacob Tonson at the Judges-Head both over against St. Dunstan's Church in Fleetstreet MDCXCVI MVNIFICENTIA REGIA 1715 GEORGIVS D. G. MAG BR FR. ET HIB REX F. D. I. P. Sc. THE NAMES OF THE CASES IN THE SECOND PART A ADAMS v. Cross 181 Alleson v. Marsh ibid. Anonymus's 35 39 45 46 47 48 58 73 117 154 171 172 173 174 180 194 195 196 214 215 216 218 262 346 347 349 351 353 358 359 361 362 363 365 B BAiles v. Wenman 74 Barney v. Tyson 359 Bathurst 's Case 40 Baynton v. Bobbet 67 Bealy v. Sampson 90 93 Beaumont v. Weldon 155 Beversham 's Sir William Case 345 Biddulph v. Dashwood 261 Bird v. Blosse 361 Blake v. Clattie 73 Bland v. Haselrig al' 151 Blisse v. Frost 63 67 Blois Charles al' v. Dame Jane Blois and Jane Blois Infants 347 Bockenham v. Thacker 69 71 74 Bond v. Moyle 106 Bonham v. Newcomb 364 Bowyer v. Milner 57 Bracton v. Lister 84 Bright v. Addy 195 Broadhurst v. Richardson al' 349 Brown v. Rands 156 Buckler v. Millerd 107 Burchet v. Durdant 311 Bush v. Buckingham 80 83 Butler 's Sir Oliver Case 344 C CAge v. Russel 352 Carr v. Donne 189 193 Chamberlain v. Cooke 75 78 Chapman v. Flexman 286 291 Chase v. Sir James Etheridge 130 Clarke v. Peppin 97 99 Clarke v. Tucket 182 Clobberie 's Case 342 Coghill v. Freelove 209 Collet v. Collet 355 Colley v. Helyar 135 Cornwallis 's the Lord Case 38 Cooke v. Romney 173 Cramlington v. Evans and Percival 296 307 Craw v. Ramsey 1 D DAwney v. Vesey 249 Dawson v. The Sheriffs of London 84 89 Dennis v. Mazey 210 212 Dickman v. Allen 136 138 Dighton Christopher v. Bernard Greenvil 321 Dod v. Dawson 143 Dodwell the Case of and The University of Oxford 33 Dowse v. Cale 117 126 Draper Sir Thomas v. Dr. Crowther 362 E ELlis v. Yates 153 Every v. Carter 254 259 F FAgg v. Roberts al' 195 Fleet 's The Warden of the Case 154 Fowkes v. Joyce 50 G GAwden v. Draper 217 George v. Butcher 140 Godfrey v. Ward 185 Gower 's Sir Thomas Case 90 Goylmer v. Paddiston 353 Grove v. Dr. Elliot Chancellor of Sarum 41 Guldeford Major probi homines de v. Clarke 243 247 H HAnson Judith v. Liversedge 239 242 Harding 's Patrick Case 315 Harris v. Parker 249 253 270 Harrison Tho. Ux ' v. Dr. Barwell 9 Haslewood v. Mansfield 196 Haymer Vid. v. Haymer 343 Highway v. Derby 174 Hocket Ux ' v. Stegold ux ' 29 Hodges v. Waddington 360 Holland v. Lancaster 131 134 Hollis 's my Lord Case 345 Humphreys v. Bethily 198 222 K KEmp v. Cory al' 224 227 283 Killigrew v. Sawyer 79 King of Grays-Inn v. Sir Edw. Lake 28 L LAde v. Baker and Marsh 145 149 Lade v. Barker 260 266 Lawson v. Haddock 234 237 Lechmere al' v. Toplady al' 156 169 Leigh v. Ward 72 Lexington the Lord v. Clarke and his Wife 223 Littleton 's Sir Thomas Case 351 Lundy 's Colonel Case 314 M. MArks v. Nottingham 196 Marsh v. Lee 337 Mason v. Watkins 109 Massingham v. Durrant 49 Morgan v. Hunt 213 Morley v. Polhill al' 51 56 Mountague the Earl of v. The Lord Preston 170 N NEwport v. Godfrey 184 Noell v. Robinson 358 Norwood v. Woodly 193 O ONslowe 's Case 37 Otwaie 's Sir John Case 31 Oxford 's the City of Case 106 P PAge v. Kirke 36 Pawlet 's the Lord Case 366 Perrot 's Herbert Case 30 Pheasant Peter v. Anne Pheasant The Lord Mayor of London and Sir Thomas Player Chamberlain of London c. 340 Pinager v. Gale 100 Pretious v. Robinson 173 Prynne v. Sloughter 101 104 Pyne v. Woolland 176 179 R RAgget William Vx ' v. William Clarke 364 Rashly v. Williams 59 61 Reeve 's Sir Robert Case 363
Plaintiffs and assign a Breach on the Defendants part Defendant pleads quod Testator nihil habuit in Tenementis The Plaintiffs demur to the Plea 98 4. By an Assignee of an Assignee against an Executor 117 The Declaration sets forth the Demise and that the Defendants Testator Covenanted to pull down three old Houses and build three new ones in their room and to keep the same in good repair and so deliver them up at the end of his Term 119 Sets forth the Plaintiffs Title to the Reversion by Assignment from the Lessor 119 120 And that the Tenant for years Attorned 121 That the Tenant in possession died and left the Defendant his Executor c. The the Plaintiff hath performed all and singular the Covenants on the part of the Lessor and his Assigns Protestando that the Defendant hath not performed those on the part of his Testator 122 He assigns a Breach in facto for permitting once of the new erected Houses to fall down before the end of the Term and other defaults in not Repairing Et sic the Defendant Convenconem non tenuit 123 The Defendant pleads performance specially to each Breach assigned and says that his Testator pull'd down the three Houses and built other three Houses in their room which he kept in Repairs and so delivered at the end of his Term 124 The Plaintiff demurs to the Plea as not being sufficient as to the leaving one House totally prostrate and ruined as the Plaintiff declared The Defendant joyned in Demurrer 125 5. Against the Assignee of an Executrix 228 The Declaration sets forth That the Plaintiff was possest of a Term for years yet in being by Indenture demised to the Testator for 21 years at the yearly Rent of c. 229 With a Clause of Re-entry and Covenants 230 That the Lessee entred made his Will made the Assignor his Exetrix and died That she proved the Will entred and assigned to the Defendant who entred and is still possest The Breach assigned was in the Non payment of Rent 231 The Defendant pleads That he assigned over before any Rent due 232 Demurrer to part of the Plea Joynder in Demurrer Judgment for the other part 233 Cesset executio Brevis de Inquirendo de dampnis quousque the Demurrer be determined 234 6. In Covenant the Plaintiff declares upon an Indenture of Demise from the Defendant 272 Profert in Curia The Demise Habendum Reddendum The Covenants on the Plaintiffs part 273 Covenants on the Defendants part for himself and Assigns to permit to make a Drain The Plaintiff entred and was possest and avers performance of all Covenants on his part The Breach assigned Eo quod the Defendant being possest of certain Tenements adjoyning for a Term of years did demise part of the Term to J. S. who entred 274 And died possest And Administration granted to his Widow who entred and was possest and took Husband The Husband and Wife entred and were possest and refuse to suffer the Defendant to make the Drain Et sic inde producit sectam 275 The Defendant pleads That he permitted the Plaintiff to make a Drain according to Covenant but the Plaintiff refused it The Plaintiff demurs The Defendant joyns in Demurrer 276 D Debt 1. IN Debt upon a Bond the Defendant craves Oyer of the Condition and pleads the Statute of Vsury 80 He sets forth the Usurious Contract the Money lent and the Bond in question given for it and that the Money for Forbearance exceeds the rate of 6 l per Cent. 81 The Plaintiff Replies That the Bond was made by a Scrivener in his absence who mistook the Condition and Traverses the Corrupt Agreement The Defendant demurs to the Replication The Plaintiff joyns 82 2. Debt upon a Bond to perform an Award 110 The Defendant craves Oyer of the Condition and pleads that the Arbitrators made no Award but that they named an Umpire who made no Award by Writing or Word of Mouth 111 The Plaintiff replies That true it is that the Arbitrators nor the Umpire by them first Chosen made any Award but refused whereupon the Arbitrators chose another Umpire who mad an Award within the time limitted 112 The Defendant demurs specially and assigns for Cause That it does not appear by the Replication that the Defendant had Notice that the Arbitrators had named the second Umpire or that he had any Authority to make any Umpirage The Plaintiff joyns in Demurrer 113 3. For Rent against an Executrix upon a Lease parol 176 The Declaration sets forth the Demise to the Defendants Testator of the 4th part of two Corn Mills and of one Mault-Mill under the same Roof to hold for one year sic de Anno in annum as long as both parties shall please paying Monthly for the same the Sum of 60 s 4 d ob so long as the said Testator should hold the Premisses and shews that he entred and held it for so long and that the Rent is due and unpaid for so many Months per quod actio accrevit 176 He also sets forth another Demise from year to year so long as both parties shall please at the yearly Rent of 20 l to be paid Quarterly by equal Portions the Tenants Entry the Rent arrear per quod actio accrevit Another Demise at Will laid Entry Rent arrear Actio accrevit 177 Another Demise at Will laid of the 4th part of another Mill Entry Rent arrear Actio accrevit the The Testator in his Life time nor the Executrix post mortem have not paid 178 The Defendant pleads in Abatement That the Tenant died Intestate and that Administration was granted to her and therefore ought to be sued as Administratrix and not as Executrix 178 The Plaintiff replies That the Defendant administred as Executrix before the granting the Administration to her The Defendant demurs to the Replication The Plaintiff joyns 179 4. Debt upon Bond. The Defendant craves Oyer of the Condition which is to perform an Award 219 Pleads That the Arbitrators made no Award The Plaintiff replies and sets forth the Award made in Writing and assigns a Breach in not paying a certain Sum of Money awarded 220 The Defendant demurs The Plaintiff joyns 221 5. Debt upon a Sheriffs Bond 234 The Defendant prays Oyer of the Condition which was to appear in Chancery to answer a Contempt Pleads the Statute of 23 H. 6. That an Attachment issued out of Chancery delivered to the Plaintiff being Sheriff who caused the Defendant to be arrested and after took the said Bond for his Appearance 236 Contra formam Statuti praedicti sic scriptum Obligatorium illud c. vacuum in lege existit The Plaintiff demurs to the Plea The Defendant joyns 237 6. Debt upon Bond Condition'd to perform an Award 239 The Defendant pleads that the Arbitrators made no award The Plaintiff replies and sets forth an Award made ore tenus 240 Notice of the Award and request for the Performance of it
so a man cannot be Child and Husband c. because there is a repugnancy in the Offices A Parent cannot obey a Child and therefore 't is unnatural a Parent should be Wife to a Child A Parent as a Parent may Command and Correct a Child and there there a Child as Husband should Command and Correct the same Parent is utterly repugnant Vnder the Law the Son that Cursed his Father or Mother Levit. 20. ver 9. and also he that was Disobedient to either of them Deut. 21. ver 18 19 20 21. was to be put to death And as there is a Reverence and Obedience due to the Immediate Parents so there is to Grand Parents if the Immediate Parent have an absolute or qualified Power over the Son the Grand Parent has the like over the Son too because the Grand Parent hath it over the Immediate Parent Now I will cite a Case in our Law somewhat to the purpose I have been speaking 't is in Platt's Case Pl. Com. 37. a. If a Woman be Warden of the Fleet and one that is in Prison there marry her he is thereby out of Prison and the Law does adjudge him to be Enlarged because 't is repugnant that he as Husband should have the Custody of her and she as Gaoler the Custody of him And the like Reason at least in some degree is against Parents marrying their Daughters c. And now as to all this I will cite one of the greatest Human Authorities It is the Opinion of Hugo Grotius the Learnedest man of his time De jure Belli ac Pacis lib. 2. cap. 5 12. Ab hac generalitate says he eximo matrimonia parentum cujuscunque gradus cum liberis quae quo minus licita sunt rati ni fallor satis apparet nam nec maritus qui superior est lege matrimonii eam reverentiam potest praestari matri quam natura exigit nec patri filia quia quanquam inferior est in matrimonio ipsum tamen matrimonium talem inducit societatem quae illius necessitudinis reverentiam excludit The Reverence on each side is inconsistent But this Reason holds not against the marriage of a man's Uncles Wife and the same very Great Person gives his Opinion to this purpose a little before De conjugiis eorum qui sanguine aut affinitate junguntut satis gravis est quaestio non rato magnis motibus agitata nam causas certas ac naturales cur talia conjugia ita ut legibus aut moribus vetantur illicita sint assignate qui voluerit experiendo discet quam id sit difficile imo praestari non possit Thirdly Another Reason of the Vnlawfulness or Prohibition of Marriages of the first kind which holds not in this Case is the inconsistence absurdity and monstrousness of the Relations to be begotten by them the Son would be his Fathers Brother his Mothers Grandson his own Uncle c. Object In the Civil Law Uncles are Loco Parentum Answ They were so estimated there but thence it doth not follow that they are so But I will give the true Reason why they were so called viz. They the agnati are legitimi Tutores of the Brothers Children and this appears by Justinian But how absurd is it to apply this to the Matter Why by the same Reason the Guardian in our Law can't marry his Ward let the Degree be what it will Object The Canon Law does prohibit the same also because they are Loco Parentum Answ The Reason is borowed from the Civil Law and must have the same Answer There is another thing very remarkable as to this distinction viz. that our Law puts a great difference between Parents and Uncles the Father can't inherit the Son but the Uncle may So that the measure to be taken by and from the Laws of one Kingdom to another is quite different In the Synod held by the Province of Canterbury Anno 1603. there were certain Canons made The Synod was called by the Kings Writ and the Canons ratified as they ought to be In the 99th Canon of those it is Ordained That no person shall marry within any Degrees expressed in the Table there mentioned This Table was first set up after this Canon but it had been published by Proclamation c. in the Queens time This Canon is so penned that it must be understood that all the Degrees are expressed there within which Marriage was intended to be prohibited but now there is no such Degree as this in the present Case there I do not take the Pleading in this Case to be good because here it is not said she was Carnally known as before I observed it ought to be to bring him within the Statute then there is a Fault in the Plaintiffs for tho' they have set down the Case so that we can see what it is yet they ought to have averred that it was not within the Levitical Degrees because that then they might have given opportunity to the Defendant to assign some other Cause Bene verum est c. but she had married a former Husband before c. Now I come to the other sort of Objections which I promised to give some Reasons in answer of for the satisfaction of of People abroad I did say That it were very difficult without this Statute to make it out that we were bound to observe this part of the Iudaical Law And we are not bound to observe any part of the Iudaical Law except those particulars where there is a Natural Reason too Acts Apost 15. There is the account of a Council held concerning the keeping of the Mosaical Law and the result is That it seems good to the Holy Ghost and the Apostles to lay upon their Brethren which were of the Gentiles in Antioch c. no greater burthen than these necessary things That the abstained from Meats offered to Idols Blood things strangled and Fornication A man can't say that all these were Mosaical neither but it is plain these were all they would lay upon them and the Corinthians 'T is clear they were not given as Precepts but Counsels that the Communion between the two Churches which were then coming together might not be interrupted Cor. 10. ver 17 c. Whatsoever is set before you eat asking no Question for Conscience sake But if any man say unto you This is offered in sacrifice unto Idols eat not for his sake that shew'd it and for Conscience sake c. Conscience I say not thine own but the others c. Give none offence neither to the Jews c. Rom. 2. ver 14. does clearly affirm that the Law of Moses was not given to the Gentiles And Rom. 3. v. 2. shews that this Law called there the Oracle of God was committed to the Jews only Object And this is the great Objection against our Prohibitions This Law depends upon the Original Tongues and Tradition and History and Laymen cannot know the Secret of
this Law by which this matter is to be decided Answ This Objection hath some speciousness in it but no weight First The Law viz. the Levitical Law is generally understood to be that which is publickly received as the Translation all Laws that are made concerning any such thing are to be understood of that kind of the thing which is vulgarly and generally known and received Secondly And 't is not long since the Clergy came to be so learned they were content heretofore with the Vulgar Translation and 't is not necessary for a Dean for that purpose or other Dignitary or Clergyman quasi such that he should understand the Languages But Thirdly We have no Cognizance of this Matter there was a time when they had no cognizance of Wills and Testaments but now they have they must study them and determine concerning them Since we have a Cognizance we may as well prohibit in this Case of Land Freehold c. For since this is made of the same nature we must go the same way If an Act were made that in matter of Theft c. we should judge after the Law of Moses we must study it and judge by it 'T is no new thing that Laws be thus transferred from one Nation to another thus was the Law of the Twelve Tables from Athens to Rome thus the Law of Rhodes to other parts of the World and so our Law was made the Law of Ireland and this is the Answer I give to the two Statutes that since we have Cognizance we must take notice of Gods Law If Churchmen in this case encroach Iurisdiction they must be prohibited because they have no Cognizance and we have tho' their accidental Learning may be more than ours Object 'T is hard that this should be a Prohibiting Law any more than those two other Statutes which 't is agreed were directive only to the Spiritual Courts and gave the Temporal Courts no Jurisdiction Answ There is a full and flat answer to this this Statute makes it not at all cognisable by them for where any Court has Cognizance the party must have Process c. But now here in the close of this Statute 't is enacted That no Person c. shall be admitted to any of the Spiritual Courts c. to any Process Plea or Allegation contrary to this foresaid Act And therefore all Cognizance of that nature is taken away from them They have Cognizance of all Marriages within the Levitical Degrees we allow and agree to disturb and punish the Parties but they have no Cognizance nor Power to determine what is within the Levitical Degrees and what not I conclude It is the Opinion of this Court and of all the Iudges that the Prohibition do stand and no Consultation be granted In this Case Dr. Stern the Archbishop of York was very zealous and industrious to set aside the Prohibition He made several and distinct applications to the Iudges about it he earnestly and particularly debated the matter with them and gave them Papers of his Arguments and Reasons to prove this Marriage incestuous and unlawful Thomas Rudyards Case THomas Rudyard an Attorney of this Court came into this Court upon the retorn of an Habeas Corpus directed to the Keeper of Newgate who retorned that he was taken and detained by virtue of a Warrant to him directed from Sir Samuel Sterling Lord Mayor and Sir J. Robinson two of the Kings Iustices of the Peace the tenour of which Warrant follows in these words Whereas T. R. Gent. hath been brought before Us and examined touching several Misdemeanours by him committed within the City of London since the Month of April and before the 4th of this instant June and to Us complained of and more particularly for inciting and stirring up of His Majesties Subjects then and there to the disobedience of his Laws and for abetting and encouraging of such as do meet in unlawful and seditious Conventicles contrary to the form of the late Statute made in the 22th Year of our Sovereign Lord the King that now is upon whose Examination we find just cause to suspect him to be guilty of the said Misdemeanours and thereupon did require him to find Sureties to be of the good Behaviour which he refused These are therefore to require you to take into your Custody the Body of the said T. R. and him safely to keep till he be from thence delivered by due Course of Law Given under our Hands and Seals this 11th day of June 1670. The Retorn being filed and spoken to by the Counsel upon two several days the Court delivered their Opinion Seriatim Wyld held that he ought to be remanded for if the Warrant had been that he appeared to be guilty or that they had found him guilty then the Commitment had been good as hath been agreed on all Hands and here the words in a favourable construction amount to as much The proceedings of the Magistrates against such Seditious Persons are to be encouraged especially in such a time as this when 't is known they are grown to such a head Archer contra For 't is altogether uncertain 't is said he was complained of c. but not that he did any thing and that they find just cause to suspect but shew not the Cause in particular If it had been said sundry Misdemeanours and not expressed what all would agree it insufficient as Chambers Case 1 Cro. and Wolnoths Case ibid. Mr. Selden 3 Car. was required to find Sureties for the good Behaviour for which the Iudges were severely reprehended in full Parliament because no sufficient Cause appeared Tho' the Iustices here had sufficient Cause to induce their suspicion they ought upon the Retorn to have signified it to the Court for their satisfaction also it should have been expressed also in what sum they required him to find Sureties that it might have appeared to be reasonable so that we cannot remand him but I think 't is fit to oblige him to Bail to appear the first day of the next Term that he may answer such things as shall be objected against him Tyrrell It is the Statute of 34 E. 3. c. 1. that enables Iustices of the Peace to require Sureties for the good Behaviour and that upon Suspition and seems to refer it to their Discretion but that must be exercised according to Law and whether it be or no the Iudges in this Hall must judge and therefore the matters ought to be certainly certified to them The present Retorn is altogether uncertain wherefore I think it ought to be discharged but I would advise him to consider the Statute of 35 Eliz. c. 1. against impugners of the Kings Authority in Ecclesiastical Causes Vaughan Chief Iustice This Case is one of the nicest that ever I met with on the one side is the consideration of discouraging Sectaries and preserving of the Publick Peace and Quiet of the Government On the other side the Legal Right which every
that he should suffer a Recovery his Term is not drowned 195 Tenant for Life with power to make a Jointure suffers a Recovery the Power is extinguished 226 227 Good tho' a Stranger that hath nothing in the Land be made Tenant to the Praecipe for a Recovery being a Common Assurance is to be favourably expounded 358 Whether a Recovery can be suffered where the Tail is expectant upon an Estate for Life the Tenant for Life not being made Tenant to the Praecipe 360 Release See Obligation Of all Demands its effect 314 Remainder Contingent Remainder by what Act destroyed 188 306 334 345 No Cross Remanders upon Construction in a Deed tho' sometimes in a Will 224 Rent Difference between a Rent and a Sum in Gross 99 Lease by Tenant in Fee and Rent reserved to the Lessor Executors Administrators and Assigns the words Executors and Administrators void 162 A Rent may be reserved by Contract without Deed 242 Where Rent shall be suspended and where apportioned by the Lessors Entry 276 277 Reputation Lands repurted parcel of a Mannor shall pass in a Recovery under the Word Appurtenances 52 Retorn Sheriff amerced for retorning Non est inventus on the Writ brought against his Bayliff 12 24 Sheriff retorns that Goods came to the Executors hands elongavit vendidit disposuit ad proprium usum suum convertit this tantamounts to quod devastavit 20 221 Sheriff retorns upon a Fi. fa. that he had taken Goods and that they were rescued from him not good 21 Action against Sheriff for a false Retorn of Cepi Corpus 85 Revocation What shall be a good Revocation upon a Power reserved 278 infra S. Scandal See Action upon the Case for Slander Scandalum Magnatum I do not know but my Lord of P. sent G. to take my Purse Action lies 59 Difference between an Action on the Statute of Scandalum Magnatum and a Common Action of Slander the Words in one Case shall be taken in mitiori sensu and in the other in the worst sense against the Speaker that the Honour of Great Persons may be preserved 60 Sewers Commissioners of Sewers and their Proceedings subject to the Jurisdiction of the King's Bench notwithstanding the Clause in Statute 13 Eliz. cap. 9. 67 Sheriff Sheriff may bring Trover for Goods taken in Execution and after taken away by the Defendant in the first Action 52 Soldiers Every Officer and Soldier as liable to be arrested as a Tradesman or any other person whatsoever 251 A Captain and Serjeant committed to Newgate for a great Misdemeaner in rescuing a Soldier ibid. Statutes When a Statute makes an Offence the King may punish it by Indictment but an Information will not lie when a Statute doth barely prohibit a thing 63 31 Ed. 1. Statute of Winton in an Action upon this Statute what taking shall be sufficient to discharge the Hundred 118 235 4 Ed. 3. cap. 7. Action lies for Executors upon this Statute for cutting and carrying way Corn 187. This Statute hath been always expounded largely ibid. 3 H. 7. cap. 2. A Wife forcibly married contrary to this Statute shall be admitted to give Evidence against her Husband 244 5 Eliz. cap. 4. For using a Trade not being Apprentice thereto 8 51 142 326 346 364. This Statute in relation to Apprentices expounded 174 31 Eliz. cap. 7. Of Cottages no Offence against this Statute to erect a Cottage if no body inhabits therein 107 43 Eliz. cap. 2. Poor By this Statute that enables Justices of Peace to tax a Neighbouring Parish the Justices may tax any of the Inhabitants and not the whole Parish 350 21 Jac. cap. 26. Of Felony to Personate 301 12 Car. 2. Of Ministers A good Act being made by King Lords and Commons and any defects in the Circumstances of calling them together ought not to be pried into 15 This Act extends only to Benefices with Cure ibid. 14 Car. 2. cap. 10. 16 Car. 2. cap. 3. Harth-mony Smiths Forges shall pay 191 192. So empty Houses 312 14 Car. 2. cap. 33. Of Printing Seditious Books 316. 16 Car. 2. cap. 7. Of Gaming Articles for above 100 l at a Horse Race within this Statute 253 254 17 Car. 2 cap. 2. Of Non Con-Ministers explained 328 29 Car. 2. Of Frauds and Perjuries No Promise made before the 24th of June within this Act 330. What Contracts within ths Act 361 31 Car. 2. Habeas Corpus Prayer must be made by Council wiihin the first Week after the beginning of the Term 346 T. Tail THO' a Term in gross cannot be entail'd yet where man hath a Term in point of Interest and at the same time the Trust of the Inheritance here he may entail the Trust of the Term to wait upon the Inheritance 194 What Words create an Estate Tail and what in Remainder contingent or vested 215 230 231 Estates Tail how forfeitable for Treason 299 infra A Devise to a Man and the Heirs Males of his Body with a proviso if he attempts to alien the Estate to cease the Condition void 321 322 A Limitation in Tail how it operates 378 Tender Tender and refusal is as much as payment 167 Tender where not good 252 261 Teste Where the Teste of a Writ before it was taken out is notwithstanding good 362 Tythes May be paid of a Warren by Custom 5. So of Doves and Fish ibid. Whether an Executor may bring Debt upon the Statute 2 E. 6. for Tythes due to the Testator 30 31 Where and what Modus shall bar the Recovery of Tythes in specie 32 A Prescription cannot be suggested time out of mind to pay a Modus for Tythe Hops since they were not known in England till Queen Elizabeth's time 61 Tythes of VVood tho' not Fewel payable unless exprest to be burnt in a House for the maintenance of Husbandry 75 Treason In Coyning and Clipping the Judgment 254 For raising a Rebellion in Carolina 349 Trespass See Pleading Quare Clausum fregit and threw down his Fences what Plea in Justification good 221 Continuando in Trespass where good and where not 363 Trust See Tayl. A Use in former time the same with what a Trust is now 130 Where a Trust for Life Remainder over with Power of Revocation is forfeitable and where not 128 infra Whether a Trustee is compellable to produce Writings or the Key of the Box wherein they are against the Interest of the Party for whom he is Trustee 197 Tryal See Venue What shall be Cause for new Tryal what not 30 Justices of Assize may try Informations tho' commenced before the Justices of a former Assizes 85 181 V. Venue WHere a Deed is forged at S. and given in Evidence at D. from whence the Venue ought to come in an Information thereupon 17 A Breach of Covenant assigned in Barwick the Venue shall arise from the next place in Northumberland 58 Judgment by Nihil dicit reverst after a Writ of Enquiry executed because no