Court and the Sheriff let him go into the Country it is an escape And though he be not bound to bring him the direct way because he may be rescued yet he ought not to carry him round about a great way for the accommodation of the party if he doth it is an Escape but by this Evidence you let him go back threescore miles to which there can be no answer An Habeas Corpus retornable immediate is not fixt to an hour but to a convenient time They answered that he went back to carry back some Writings Counsel Here is an escape of one of the parties who dies before the Action brought whereby the whole charge is survived to the other before the Action brought and whether this shall purge the Escape is the question or how far it shall purge it Wild. Before you brought your Action the Debt is gone as to the Escape Hales We are made the Engines of doing all the mischief if this shall go unpunished being by colour of an Habeas Corpus So the Iury brought in a Verdict for the Plaintiff who declared in Debt for 6200 l. Greene versus Proude A Trial at Bar The question whether a Will or no Will The Plaintiff produced a Deed indented made between two parties the Man and his Son and the Father did agree to give the Son so much and the Son did agree to pay such and such Debts and Sums of money And there were some particular expressions resembling the form of a Will as that he was sick of body and did give all his Goods and Chattels c. but the Writing was both Sealed and delivered as a Deed And they gave evidence that he intended it for his last Will which the Court said was a good proof of his Will Then the Defendant setting up an Entail the Plaintiff exhibited an Exemplification of a Recovery in the Marquess of Winchesters Court in ancient demesne The other side objected that they did not prove it a true Copy But because it was ancient the Court said they should not be so strict upon the Evidence of it for the other side said the Court Rolls were burned in Baseing-house in the time of the Wars Hales I remember a case where one had gotten a presentation to the Parsonage of Gosnall in Lincoln-shire and brought a Quare Impedit and the Defendant pleaded an Appropriation there was no Licence of Appropriation produced but because it was ancient the Court would intend it Then they objected that they ought to prove seisin in the Tenant to the Praecipe Hales It being an ancient Recovery we will not put them to prove that He said the Mayor of Bristol had offered in evidence an Exemplification of a Recovery under the Town Seal of Houses in Bristol the Records being burned and that Exemplification was allowed for Evidence Hales If Tenant in Tail accept a Fine come ceo c. this doth not not alter his Estate If Tenant for life accept of a Fine Sur conusance c. he doth forfeit his Estate but it doth not alter the Estate for life Objection The Recovery is of Land in Kingscleare whereas the Land claimed is in a particular Ville called And the Vills are several and there are distinct Courts in every Ville Hales There are several Tythings of Dale Sale and Downe there is a Tythingman in every particular place but the Constable of Dale goes through all these may go for several Vills or one Vill There may be a Mannor that hath several little Mannors within it wherein are held several Courts for the ease of the Tenants but all but one Mannor And a Writ of Right close is Quod plenam rectam c. and runs to the Bayliff of the Mannor and may extend to the Precinct of the whole Mannor as the Mannor of Barton hath several little Mannors under it yet all within the Mannor Hales Where there is a Writ of Right close in ancient demesne it is not like a demand to a Sheriff here where he hath his direction for so many Acres Maynard But then he must demand it in the particular Ville where it is Hales If a Praecipe quod reddat be of Land in a Parish where it must be in a Ville there may be exception to the Writ but if he recovers it is good for now the time is past And so where it is infra manerium if he recovers it is good Browne versus AN Action brought in Canterbury Town The Defendant removes it by Habeas Corpus Then the Plaintiff declares here It was moved that it might be tried in some other County because the Iudges came there so seldom Court Let them shew cause why they should not consent and if they will plead Nil debet the Plaintiff will be willing to let them give any thing in Evidence And Simpson said it was the Opinion of all the Iudges that upon Nil debet pleaded Entry and Suspension may be given in Evidence which the Court did not deny So the Court ordered the other side to shew cause why they should not consent One Hillyard an Attorney sued for his Fees in this Court in the Court at Bristol But the Court said an Attorney ought not to wave this Court A motion was made by Sir William Jones for the Lord Mayor Starling See Bushel's case reported in Vaughan's Reports and the Recorder Howell One Bushell brought an Action against them for False Imprisonment And because the plea was long he prayed he might have time to plead Hales I speak my mind plainly that an Action will not lye for a Certiorari and an Habeas Corpus whereby the body and proceédings are removed hither are in the nature of a Writ of Error And in case of an erroneous Iudgmene given by a Iudge which is reverst by a Writ of Error shall the party have an Action of False Imprisonment against the Iudge No nor against the Officer neither The Habeas Corpus and Writ of Error though it doth make void the Iudgment it doth not make the awarding of the Process void to that purpose and the matter was done in a course of Iustice They will have but a cold business of it An Habeas Corpus and Certiorari is a Writ of right the highest Writ the party can bring So day was given to shew cause Lord Tenham versus Mullins A Trial at Bar about a fraudulent Deed. Hales There are thrée things to be considered Fraud Consideration and Bona fide Now the Bona fide is opposite to Fraud I remember a case in Twine's case If the Son be dissolute and the Father with advice of Friends doth settle things so that he shall not spend all though here be not a consideration of money yet it is no fraudulent Deed and a Deed may be voluntary and yet not fraudulent otherwise most of the Settlements in England would be avoided and so said Twisden Blackburne versus Graves TRover for 100 Loads of Wood Not-guilty
Man brings an Action of Debt against B. Sheriff of the County Palatine of Lancaster and sues him to an Outlawry upon mean Process and has a Capias directed to the Chancery of the County Palatine who makes a Precept to the Coroners of the County being six in all to take his body and have him before the Kings Iustices of the Court of Common-Pleas at Westminster such a day One of the Coroners being in sight of the Defendant and having a fair opportunity to Arrest him doth it not but they all return non est inventus though he were easie to be found and might have been taken every day Hereupon the Plaintiff brings an Action against the Coroners and lays his Action in Middlesex and has a Verdict for 100 l. Serj. Baldwin moved in Arrest of Iudgment that the Action ought to have been brought in Lancaster he agreed to the cases put in Bulwer's case 7 Rep. where the cause of Action arises equally in two Counties but here all that the Coroners do subsists and determines in the County Palatine of Lancaster for they make a Return to the Chancery of the County Palatine only and it is he that makes the Return to the Court He insisted upon Dyer 38 39 40. Husse Gibbs 2. He said this Action is grounded upon two wrongs one the not arresting him when he was in sight the other for returning non est inventus when he might easily have been taken now for the wrong of one all are charged and entire damages given He said two Sheriffs make but one Officer but the case of Coroners is different each of them is responsible for himself only and not for his Companion Serjeant Turner Pemberton contra They said the Action was well brought in Middlesex because the Plaintiffs damage arose here viz. by not having the body here at the day They cited Bulwer's case Dyer 159. b. the Chancery returns to the Court the same answer that the Coroners return to him so that their false Return is the cause of prejudice that accrues to the Plaintiff here The ground of this Action is the return of non est inventus which is the act of them all that one of them saw him and might have arrested him and that the Defendant was daily to be found c. are but mentioned as arguments to prove the false Return And they conceived an Action would not lie against one Coroner no more then against one Sheriff in London York Norwich c. But to the first exception taken by Baldwin they said admitting the Action laid in another County then where it ought yet after Verdict it is aided by the Statute of 16 17 Car. 2. if the Ven. come from any place of the County where the Action is laid it is not said in any place of the County where the cause of Action ariseth now this Action is laid in Middlesex and so the Trial by a Middlesex Iury good let the cause of Action arise where it will Cur̄ That Statute doth not help your case for it is to be intended when the Action is laid in the proper County where it ought to be laid which the word proper County implies But they inclined to give Iudgment for the Plaintiff upon the reasons given by Turner Pemberton Adjornatur Bird Kirke IT was resolved in this case by the whole Court 1. That if there be Tenant for life the Remainder for life of a Copy-hold and the Remainder-man for life enter upon the Tenant for life in possession and make a surrender that nothing at all passeth hereby for by his entry he is a Disseisor and has no customary Estate in him whereof to make a surrender 2. That when Tenant for life of a Copy-hold suffers a Recovery as Tenant in Fee that this is no forfeiture of his Estate for the Free-hold not being concern'd and it being in a Court-Baron where there is no Estoppell and the Lord that is to take advantage of it if it be a forfeiture being party to it it is not to be resembled to the forfeiture of a Free-Tenant that Customary Estates have not such accidental qualities as Estates at Common Law have unless by special Custom 3. That if it were a forfeiture of this and all other forfeitures committed by Copy-holders the Lord only and not any of those in Remainder ought to take advantage And they gave Iudgment accordingly North Chief Justice said that where it is said in King Lord's case in Cr. Car. that when Tenant for life of a Copy-hold surrenders c. that no use is left in him but whosoever is afterward admitted comes in under the Lord that that is to be understood of Copy-holds in such Mannors where the Custom warrants only Customary Estates for life and is not applicable to Copy-holds granted for life with a Remainder in Fee Anonymus A Writ of Annuity was brought upon a Prescription against the Rector of the Parish Church of St. Peter in c. the Defendant pleads that the Church is overflown with the Sea c. the Plaintiff demurs Serjeant Nudigate pro Querente The Declaration is good for a Writ of Annuity lies upon a prescription against a Parson but not against an heir F. N. B. 152. Rastall 32. the plea of the Church being drowned is not good at best it is no more then if he had said that part of the Glebe was drowned it is not the building of the Church nor the consecrated ground in respect whereof the Parson is charged but the profits of the Tythes and the Glebe Though the Church be down one may be presented to the Rectory 21 H. 7. 1. 10. H. 7. 13. 16 H. 7. 9. Luttrel's case 4 Rep. Wilmote contra The Parson is charged as Parson of the Church of St. Peter we plead in effect that there is no such Church and he confesseth it 21 Ed. 4. 83. Br. Annuity 39. 21 Ed. 4. 20. 11 H. 4. 49. we plead that the Church is submersa obruta c. which is as much a dissolution of the Rectory as the death of all the Monks is a dissolution of an Abbathie It may be objected that the Defendant has admitted himself Rector by pleading to it but I answer 1. An Estoppel is not taken notice of unless relyed on in pleading 2. The Plaintiff by his demurrer has confessed the Fact of our plea. By which mean the matter is set at large though we were estopped The Court was clearly of opinion for the Plaintiff The Church is the Cure of Souls and the right of Tythes If the material Fabrick of the Parish-Church be down another may be built and ought to be Judicium pro Quer ' nisi c. Term. Trin. 27 Car. II. in Communi Banco Vaughton versus Atwood alios TRespass for taking away some Flesh-meat from the Plaintiff being a Butcher The Defendant justifies by virtue of a Custom of the Mannor of c. that the Homage used
also for that they sued the Plaintiff in another Court knowing that he was an Attorney of the Common-Pleas and priviledged there Per tot ' Cur ' there is no cause of Action For put the case as strong as you will suppose a man be retained as an Attorney to sue for a debt which he knows to be released and that himself were a witness to the Release yet the Court held that the Action would not lye for that what he does is only as Servant to another and in the way of his Calling and Profession And for suing an Attorney in an inferiour Court that they said was no cause of Action for who knows whether he will insist upon his priviledge or not and if he does he may plead it and have it allowed Fits al. versus Freestone IN an Action grounded upon a promise in Law payment before the Action brought is allowed to be given in Evidence upon non Assumpsit But where the Action is grounded upon a special promise there payment or any other legal discharge must be pleaded Bringloe versus Morrice IN Trespass for immoderately riding the Plaintiffs Mare the Defendant pleaded that the Plaintiff lent to him the said Mare licentiam dedit eidem aequitare upon the said Mare and that by virtue of this Licence the Defendant and his Servant alternatim had rid upon the Mare The Plaintiff demurs Serj. Skipwith pro Quer ' The Licence is personal and incommunicable as 12 H. 7. 25. 13 H. 7. 13. the Dutchess of Norfolk's case 18 Ed. 4. 14. Serj. Nudigate contra This Licence is given by the party and not created by Law wherefore no Trespass lyeth 8 Rep. 146 147. per Cur ' the Licence is annexed to the person and cannot be communicated to another for this riding is matter of pleasure North took a difference where a certain time is limited for the Loan of the Horse and where not In the first case the party to whom the Horse is lent hath an interest in the Horse during that time and in that case his Servant may ride but in the other case not A difference was taken betwixt hiring a Horse to go to York and borrowing a Horse in the first place the party may set his Servant up in the second not Term. Pasch 28 Car. II. in Communi Banco Anonymus A Man upon marriage Covenants with his Wives relations to let her make a Will of such and such Goods she made a Will accordingly by her husbands consent and dyed After her death her Will being brought to the Prerogative Court to be proved a Prohibition was prayed by the Husband upon this suggestion that the Testatrix was foemina viro cooperta and so disabled by the Law to make a Will Cur ' Let a Prohibition go Nisi causa c. North. When a question ariseth concerning the Iurisdiction of the Spiritual Court as whether they ought to have the Probate of such a Will whether such a disposition of a personal Estate be a Will or not whether such a Will ought to be proved before a peculiar or before the Ordinary whether by the Archbishop of one Province or another or both and what shall be bona notabilia in these and the like cases the Common Law retains the Iurisdiction of determining there is no question but that here is a good surmise for a Prohibition to wit that the woman was a person disabled by the Law to make a Will the Husband may by Covenant depart with his right and suffer his Wife to make a Will but whether he hath done so here or not shall be determined by the Law we will not leave it to their decision it is too great an invasion upon the right of the Husband In this case the Spiritual Court has no Iurisdiction at all they have the Probate of Wills but a Feme-covert cannot make a Will If she disposeth of any thing by her Husbands consent the property of what she so disposeth passeth from him to her Legatee and it is the gift of the husband If the Goods were given into anothers hands in trust for the wife still her Will is but a Declaration of the trust and not a Will properly so called But of things in Action and things that a Feme-Covert hath as Executrix she may make a Will by her Husbands consent and such a Will being properly a Will in Law ought to be proved in the Spiritual Court. In the case in question a Prohibition was granted against the Hambrough Company THe Plaintiff brought an Action of Debt in London against the Hambrough-Company who not appearing upon Summons and a Nihil being returned against them an Attachment was granted to attach Debts owing to the Company in the hands of 14 several persons by Certiorari the cause was removed into this Court and whether a Procedendo should be granted or not was the question Serjeant Goodfellow Baldwin and Barrell argued that a debt owing to a Corporation is not attachable Serjeant Maynard Scroggs contra Cur ' We are not Iudges of the Customs of London nor do we take upon us to determine whether a debt owing to a Corporation be within the Custom of forrein Attachment or not This we judge and agree in that it is not unreasonable that a Corporation's debts should be attached If we had judged the Custom unreasonable we could and would have retained the cause For we can over-rule a Custom though it be one of the Customs of London that are confirmed by Act of Parliament if it be against natural reason But because in this Custom we find no such thing we will return the cause Let them proceed according to the Custom at their peril If there be no such Custom they that are aggrieved may take their remedy at Law We do not dread the consequences of it It does but tend to the advancement of Iustice and accordingly a Procedendo was granted per North Chief Justice Wyndham Ellis Atkyns aberat Anonymus PEr Cur ' if a man is indicted upon the Statute of Recusancy Conformity is a good plea but not if an Action of Debt be brought Parten Baseden's Case PArten brought an Action of Debt in this Court against the Testator of Baseden the now Defendant aâ—d had Iudgment After whose death there was a devastavit returned against the Defendant Baseden his Executor he appeared to it and pleaded and a special Verdict was found to this effect viz. that the Defendant Baseden was made Executor by the Will and dwelt in the same house in which the Testator lived and died and that before Probate of the Will he possest himself of the Goods of the Testator prized them inventoried them and sold part of them and paid a Debt and converted the value of the residue to his own use that afterwards before the Ordinary he refused and that upon his refusal administration was committed to the Widow of the deceased And the question was whether or no the
it was said that the Act of Parliament only takes away a Writ of Error in such case but there is no day in Bank to plead It was order'd to stand in the paper Corporation of Darby THe Corporation of the Town of Darby prescribe to have Common sans number in grosse Sanders I conceive it may be by prescription what a man may grant may be prescribed for Co. Lit. 122. is express Keel In a Forest the King may grant Common for Sheep but you cannot prescribe for it And if you may prescribe for Common sans number in grosse then you may drive all the Cattel in a Fair to the Common Sanders But the prescription is for their own Cattel only Twisd If you prescribe for common sans number appurtenant to Land you can put in no more Cattel then what is proportionable to your Land for the Land stints you in that case to a reasonable number But if you prescribe for common sans number in grosse what is it that sets any bounds in such case There was a case in Glyn's time betwéen Masselden and Stoneby where Masselden prescribed for common sans number without saying levant couchant and that being after a Verdict was held good but if it had been upon a Demurrer it would have been otherwise Livesey said he was agent for him in the case Bucknall Swinnock INdebitat Assumpsit for money received to the Plaintiffs use the Defendant pleads specially that post assumptionem praedictam there was an agreement between the Plaintiff and Defendant that the Defendant should pay the money to J. S. and he did pay it accordingly The Plaintiff demurrs Jones This plea doth not only amount to the general issue but is repugnant in it self It was put off to be argued Hall versus Wombell THe question was whether an Action of Debt would lie upon a Iudgment given by the Commissioners of Excise upon an Information before them Adjornatur Vaughan Casewell A Writ of Error was brought to reverse a Iudgment given at the grand Sessions in Wales in a Writ of Quod ei deforciat Sanders The point in Law will be this whether a Tenants vouching a Vouchee out of the line be peremptory and final or that a Respondeas ouster shall be awarded Mr. Jones In an Assise the Tenant may vouch another named in the Writ 9 H. 5. 14. and so in the Com. fo 89. b. but a voucher cannot be of one not named in the Writ because it is festinum remedium In Wales they never allow foreign vouchers because they cannot bring them in If there be a Counterplea to a Voucher and that be adjudged in another Term it is always peremptory otherwise if it be determined the same Term. An Action of Trover and Conversion was brought against husband and wife and the wife arrested Twisd The wife must be discharged upon Common bail so it was done in the Lady Baltinglasse's case And where it is said in Crook that the Wife in such case shall be discharged it is to be understood that she shall be discharged upon Common bail So Livesey said the course was It was said to be the course of the Court That if an Attorney be sued time enough to give him two Rules to plead within the Term Iudgment may be given otherwise not Russell Collins AN Assumpsit was brought upon two several promises and entire damages were given Moved by Mr. Sympson in arrest of Iudgment that for one of the promises an Action will not lie It was a general indebitatus pro opere facto which was urged to be too general and uncertain But per Cur ' it is well enough as pro mercimoniis venditis pro servitio without mentioning the Goods or the Service in particular And the Plaintiff had Iudgment Dyer versus East AN Action upon the Case upon a promise for Wares that the wife took up for her wearing Apparel Polyxfen moved for a new Trial. Keel The husband must pay for the wives Apparel unless she does elope and he give notice not to trust her that is Scott Manby's case which was a hard Iudgment but we will not impeach it The Plaintiff had Iudgment Beckett Taylor DEbt upon a Bond to submit to an Award Exception was taken to the Award because the concurrence of a third person was awarded which makes it void They award that one of the parties shall discharge the other from his undertaking to pay a Debt to a third person and it was pretended that the third person being no party to the submission was not compellable to give a discharge But it was answered that he is compellable for in case the debt be paid him he is compellable in equity to give a Release to him that had undertaken to pay it Rolls 1 part 248. Giles Southwards case Mich. 1653. Judgment nisi Seventéen Serjeants being made the 4th of November a day or two after Serjeant Powis the Junior of them all coming to the Kings Bench bar the Lord Chief Iustice Keeling told him that he had something to say to him viz. That the Rings which he and the rest of the Serjeants had given weighed but 18 s. apiece whereas Fortescue in his book de laudibus legum Angliae says That the Rings given to the Chief Iustices and to the Chief Baron ought to weigh 20 s. apiece and that he spake this not expecting a recompence but that it might not be drawn into a president and that the young Gentlemen there might take notice of it Clerke versus Rowell Phillips A Trial at bar in Ejectment for Lands settled by Sir Pexall Brockhurst The Court said a Trial against others shall not be given in Evidence in this cause And Twisden said that an Entry to deliver a Declaration in Ejectment should not work to avoid a Fine but that it must be an express Entry Vpon which last matter the Plaintiff was non-suit Redmans Case IT was moved that one Redman an Attorney of the Court who was going into Ireland might put in special Bail Twisd A Clerk of the Court cannot put in bail You have filed a Bill against him and so waved his putting in bail Keel You may remember Woolly's case that we discharged him by reason of his priviledge and took Common bail Twisd You cannot declare against him in custodia But though we cannot take bail yet we may commit him and then deliver him out by mainpernancy Jones If he be in Court in propria persona you cannot procéed against his bail The Court agréed that the Attorney should not put in bail Grafton GRafton one of the Company of Drapers was brought by Habeas Corpus In the Return the cause of his Imprisonment was alledged to be for that being chosen of the Livery he refused to serve Per Cur ' they might have fined him and have brought an Action of Debt for the sum but they could nor imprison him Keel The Court of Aldermen may imprison a
Will because he hath not put it out of him there arises an Vse and a Trust for himself But in our case he hath put the Vses out of himself for there are several Vses declared But there is a further difference if Simon Mayne had declared the Vse to others absolutely and had reserved liberty to himself to have altered it by his Will that might have altered the case But here the Proviso is That if at the time of his death he shall have a Son c. so that it is reduced to him upon a Condition and Contingency As to the power of Revocation he cited the Duke of Norfolks case in Englefields case which Twisd said came strongly to this Adjourned V. infr An Information was exhibited against one for a Libel Coleman The party has confessed the matter in Court and therefore cannot plead not guilty Twisd You may plead not guilty with a relicta verificatione Horne Ivy. TResp for taking away a Ship The Defendant justifies under the Patent whereby the Canary-Company is incorporated and granted that none but such and such should Trade thither on pain of forfeiting their Ships and Goods c. and says that the Defendant did Trade thither c. the Plaintiff demurs Polynxfen He ought to have shown the Deed whereby he was authoriz'd by the Company to seize the Goods 26 H. 6. 8. 14 Ed. 4. 8. Bro. Corp. 59. though I agree that for ordinary Imployments and Services a Corporation may appoint a Servant without Deed as a Cook a Butler c. Plo. Com. 91. A Corporation cannot Licence a stranger to sell Trees without Deed 12 H. 4. 17. Nor can they make a Diuessor without Deed nor deliver a Letter of Attorney without Deed. 9 Ed. 4. 59. Bro. Corp. 24. 34. 14 H. 7. 1. 7 H. 7. 9. Rolls 514. tit Corporation Dr. Bonhams case Again the plea is double for the Defendant alledgeth two causes of a breach of their Charter viz. their taking in Wines at the Canaries and importing them here which is double Then there is a clause that gives the forfeiture of Goods and Imprisonment which cannot be by Patent 8 Rep. 125. Waggoners case Noy 123. in the case of Monopolies This Patent I take also to be contrary to some Acts of Parliament viz. 9 Ed. 3. c. 1. 2 Ed. 3. cap. 2. 2 Rich. 2. cap. 1. 11 Rich. 2. cap. 2. and these Statutes the King cannot dispence withall by a Non obstante Twisd For the first point I think they cannot seize without Deed no more then they can enter for a Condition broken without Deed. Keel We desire to be satisfied whether this be a Monopoly or not It was ordered to be argued Pryn versus Smith SCire Facias in this Court upon a Recognizance by way of Bail upon a Writ of Error in the Exchequer Chamber The Defendant pleaded that the Plaintiff did after Iudgment sue forth a Capias ad satisfaciend out of this Court to the Sheriff of Middlesex whereupon he was taken in Execution and suffered to escape by the Plaintiffs own consent Jones We have demurred because they do not lay a place where this Court was holden nor where the Plaintiff gave his consent Redman Pyne AN Action upon the Case was brought for speaking these words of the Plaintiff being a Watch-maker viz. He is a bungler and knows not how to make a good piece of work but there was no colloquium laid of his Trade Pemberton The Iury have supply'd that having found that he is a Watch-maker And it is true that words shall be taken in mitiori sensu but that is when they are doubtful Caudry's case 1 Cro. 196. Twisden I remember a Shoe-maker brought an Action against a man for saying that he was a Cobler And though a Cobler be a Trade of it self yet held that the Action lay in Glyn's time Saunders If he had said that he could not make a good Watch it would have béen known what he had meant but the words in our case are indifferent and perhaps had no relation to his Trade Ordered to stay Vere Reyner AN Action upou the Case upon a promise to carry duas carectatas c. Rotheram It s uncertain whether carectata signifies a Horse-load or a Cart-load Judgment nisi c. Twisd I have known if a Iudgment be given and there is an agréement betwéen the parties not to take out Execution till next Term and they do it before that the Court has set all aside One brought up by Habeas Corpus out of the Cinque-Ports upon an Information for breaking Prison where he was in upon an Execution for Debt Barrell moved against it Twisd Suppose a man be arrested in the Cinque-Ports for a matter arising there and then another hath cause to arrest him here is there not a way to bring him up by Habeas Corpus Barrell It was never done but there has béen a Habeas Corpus thither ad faciend recipiend Keel If a man be in Prison in the Fléet we bring him up by Habeas Corpus in case there be a Suit against him here Twisd Where shall such a man be sued upon a matter arising out of the Cinque-Ports Barrell If it be transitory he must be sued there if local elsewhere Twisd Then you grant if local that there must be a Habeas Corpus And so it was allowed in this case Two Iustices of Peace made an Order in Session-time against one Reignolds as reputed Father for the kéeping of a Bastard-child Reignolds appealed to the same Sessions where the Iustices made an Order that one Burrell should kéep it Jones moved to set aside this Order though an Order of Sessions upon an Appeal from two Iustices because he said the first Order being made in Session time that Sessions could not be said to be the next within the Stat. of 18 Eliz. and because the Iustices at the Sessions did not quash the Order made by two Iustices Keel They ought to have done that Twisd They may vacat the first Order and refer it back to two Iustices as res integra The Order being read one clause of it was that Burrell should pay 12 d. a wéek for kéeping the Child till it came to be twelve years of age which Twisden said was ill for it ought to be so long as it continues chargeable to the Parish The parties were bound over to appear at the next Assizes in Essex Darby-shire versus Cannon SYmpson moved that the Defendant having submitted to a Rule of Court for referring the matter and not performing the Award an Attachment might be granted against him Which was granted but when the party comes in upon the Attachment he may alledge that the Award is void and if it appear to be so he shall not be bound to perform it Owen Hannings IN a Trial at Bar upon a Scire facias to avoid a Patent of the Office of Searcher exception was taken to a Witness that he was to
for an excessive Distress for it is a private matter and the party ought to bring his Action To stay Haman Truant AN Action upon the Case brought upon a bargain for Corn and Grass c. The Defendant pleads another Action depending for the same thing The Plaintiff replies that the bargains were several absque hoc that the other Action was brought for the same cause The Defendant demurs specially for that he ought to have concluded to the Country Polyxfen When there is an affirmative they ought to make the next an Issue or otherwise they will plead in infinitum 3 Cro. 755. and accordingly Iudgment was given for the Defendant Fox alii Executors of Mr. Pinsent Vide supra 47. INdebitat Assumpsit The Defendant pleads that two of the Plaintiffs are Infants and yet they all Sue per Attornatum The question is if there be two Executors and one of them under age whether the Infant must sue per Guardianum and the other per Attornatum or whether it is not well enough if both sue per Attornat Offley spake to it and cited 2 Cro. 541. Pasch 11 Car. 288. Powell's case Styles 318. 2 Cro. 577. 1 Inst 157. Dyer 338. Morton I am of Opinion that he may Sue by Attorney as Executor though if he be Defendant he must appear by Guardian Rainsford I think it is well enough and I am led to think so by the multitude of Authorities in the point And I think the case stronger when Infants joyn in Actions with persons of full age He Sues here in auter droit and I have not heard of any Authority against it Twisden concurred with the rest and so Iudgment was given Moreclack Carleton UPon a Writ of Error out of the Court of Common Pleas one Error assigned was that upon a relicta verificatione a misericordia was entred whereas it ought to have been a capiatur Twisden The Common-Pleas ought to certifie us what the practice of their Court is Monday the Secondary said it was always a Capiatur It s true in 9 Edw. 4. it is said that he shall but be amerced because he hath spared the Iury their pains and 34 H. 8. is accordingly but say they in the Common Pleas a Capiatur must be entred because dedicit factum suum So they said they would discourse with the Iudges of the Common Pleas concerning it The King versus Holmes MOved to quash an Indictment of Forcible Entry into a Messuage passage or way for that a passage or way is no Land nor Tenement but an Easement and then it is not certain whether it were a passage over Land or Water Yelv. 169. the word passagium is taken for a passage over Water Twisd You need not labour about that of the passage we shall quash it as to that but what say you to the Messunge Jones It is naught in the whole for it is but by way of recital with a quod cum he was possessed c. Et sic possessionatus c. but that Twisden said was well enough Jones Then he saith that he was possessed de quodam Termino and doth not say annorum Twisden That 's naught And the Indictment was quash'd An Action was brought against the Hundred of Stoak upon the Statute of Hue and Cry and at the Trial some House-keepers appeared as Witnesses that lived within the Hundred who being examined said they were Poor and paid no Taxes nor Parish Duties and the question was whether they were good Witnesses or not Twisden Alms-people and Servants are good Witnesses but these are neither Then he went down from the Bench to the Iudges of the Common-Pleas to know their Opinions and at his return said That Iudge Wyld was confident that they ought not to be sworn and that Iudge Tyrrell doubted at first but afterwards was of the same Opinion their reason was because when the money recovered against the Hundred should come to be levied they might be worth something Hoskins versus Robins Hill 23 Car. 2. Rot. 233. IN this case these points were spoke to in Arrest of Iudgment viz. 1. Whether a Custom to have a several Pasture excluding the Lord were a good Custom or not It was said that a prescription to have Common so was void in Law and if so then a prescription to have sole Pasture which is to have the Grass by the mouth of the Cattle is no other then Common appendant Daniel's case 1 Cro. so that Common and Pasturage is one and the same thing They say that it is against the nature of Common for the very word Common supposeth that the Lord may feed I answer if that were the reason then a man could not by Law claim Common for half a year excluding the Lord which may be done by Law But the true reason is that if that were allowed then the whole profits of the Land might be claimed by prescription and so the whole Land be prescribed for The Lord may grant to his Tenants to have Common excluding himself but such a Common is not good by prescription The second point was whether or no the prescription here not being for Beasts levant couchant were good or not for that a difference was made betwixt Common in grosse and common appendant viz. That a man may prescribe for Common in grosse without those words but not for Common appendant 2 Cro. 256. 1 Brownl 35. Noy 145. 15 Edw. 4. fol. 28. 32. Rolls tit Common 388. Fitz. tit Prescription 51. a third point was whether or no these things are not help'd by a Verdict As to that it was alledged that they are defects in the Title appearing on Record and that a Verdict doth not help them Saunders contra In case of a Common such a prescription is not good because it is a contradiction but here we claim solam Pasturam Now what may be good at this day by grant may be claimed by prescription As to the Exception that we ought to have prescribed for Cattle levant couchant its true if one doth claim Common for Cattle levant couchant is the measure for the Common unless it be for so many Cattle in number but here we claim the whole Herbage which perhaps the Cattle levant couchant will not eat up Hales Notwithstanding this prescription for the sole Pasture yet the Soil is the Lords and he has Mynes Trees Bushes c. and he may dig for Turfes And such a grant viz. of the sole Pasturage would be good at this day 18 Edw. 3. though a grant by the Lord that he will not improve would be a void grant at this day Twisden My Lord Coke is express in the point A man cannot prescribe for sole Common but may prescribe for sole Pasture And there is no Authority against him And for levant couchant it was adjudged in Stoneby Muckleby's case that after a Verdict it was help'd And Iudgment was given accordingly Anonymus AN Action of
and therefore it is but just that the Law for this Offence should put her in the same plight in the petit Common-wealth of the Houshould that it puts the Subject for the like Offence in the great Common-wealth of the Realm and this according to the Civil Law namely Si Uxor propria fine Culpa mariti sit extra consortium viri nec tenet maritus extunc ei extra consortium suum existenti aliqualit ' subministrare videt ' enim virum alendi obligatione fore exempt ' quoniam Culpa sua extra viri Consortium est For Nuptiae sunt Conjunctio maris Foeminae Consortium ejus divini humani Juris Communicatio digest ' de ritu Nuptiarum Fleta speaking of Appeals hath this expression Foemina de morte viri sui inter brachia sua interfecti non alit ' potuit appellare l. 1. Ca. 33. Bracton is much to the same purpose li. 3. Chap. 24. fo 148. non nisi in duobos casibus femina appellum habeat sc non nisi de violentia corpori suo illata sicut de raptu de morte viri sui interfecti inter brachia sua and the words of the Writ of Appeal are suitable thereunto sc venit idem A. B. nequiter in felonia c. occidit ipsum virum suum inter brachia sua c. By the words inter brachia sua in those ancient Authors is understood the wife which the dead person lawfully had in possession at the time of his death for she ought to be his wife of right and also in possession Com' S. Ma. Char. fo 68. The words of the Writ are observable sc occidit virum suum inter brachia sua and prove that the woman ought to be inter brachia viri sui or otherwise she hath not the priviledge of a wife By an argument a pari as the wife shall not have remedy against the Murtherer of her husband after his death if he were not inter brachia sua at the time of his death pari ratione she shall not have support or maintenance from her husband in his life when she puts her self extra brachia sua against his will But 't is objected by my Brother Tyrrell It appears not in whose default this departure was whether in his or her default Thereto I answer that the Law doth not allow a wife to depart from her husband in any case or for any cause whatsoever of her own head An express command is laid upon her by the Law of God to the contrary Cor. 7. 10. To the married I command yet not I but the Lord let not the wife depart from her husband The provision which our Law hath made for the safeguard of the person of a woman in case of cruelty by her husband and for her maintenance in case the husband refuses to allow it proves that it is not lawful for the wife to depart from her husbad of her own head upon any pretence whatsoever If the wife be in fear or in doubt of her husband that he will beat or kill her she shall have a Supplicavit out of the Chancery against her husband and cause him to find Sureties that he will not beat nor intreat her otherwise then in civil manner and for to order and rule her c. F. N. Br. fo 179. The words of the Writ are Quod ipsum B. coram te corporaliter venire fac ' ipsum B. ad sufficien ' manucaption ' inveniend ' c. quod ipse praefat ' B. bene Honeste tractabit Gubernabit ac dampnum malum aliquod eidem A. de corpore suo alit ' quam ad virum suum ex causa regiminis castigationis uxoris suae licite rationabilit ' pertinet non faciat nec fieri procurabit And if the husband refuse to give or allow necessary and fitting maintenance unto his wife the Law hath provided a remedy for her by complaint to the Ordinary in the Ecclesiastical Court Next it is alledged by my Brother Tyrrell that the wife in our case did return and desire to cohabit with her husband again which he refused and so she is remitted to her former condition Admit that be true yet her return hath not put her in a better condition then she was in before her departure in which case she could not be her own Carver and have charged her husband according to her pleasure with Apparel but was to be clothed in such sort as her husband thought fit Besides in our case the wife departed from her husband and lived from him divers years after before the Wares sold or the Action brought then she desired to cohabit with him which he refused to admit and from that time she lived from him This is all that appears in our case and is this offence so easily purg'd with a bare desire to cohabit without any other submission and satisfaction given of the better carriage in futuro The Law of God says Wives be in subjection to your husbands as unto the Lord for the husband is the head of the wife as Christ is head of the Church 1 Pet 3 4. Ephes 5. 22. The Church declares that one of the principal ends for which Marriages was ordained is for the mutual society help and comfort which the one ought to have of the other in prosperity and adversity It is also there said the woman of her self in contracting of Marriage makes a solemn Vow in facie Ecclesiae to live together with her husband in the holy State of Matrimony to obey him and serve him to love him and keep him in sickness and in health till death them do part The wife in our case by departing from her husband against his will breaks all those commands and her own Vow she makes a voluntary separation and temporary Divorce between her self and her husband she deprives him of that mutual society help and comfort which she owes to him for divers years and are all these Offences washed away with a bare desire without submission or contrition No certainly Confession and promise of future Obedience ought to precede her remitter or restitution to the priviledges of a wife The Prodigal Son in the Gospel said I will arise and go to my Father and say I have sinned before the Indulgent Father did receive or Cloath him And this is according to the rule in the Civil Law Si Uxor quae Culpa sua recesserat poenitentia ducta ad virum rediens nolit admitti eam extunc Culpa purgatur in virum transfundit ' tenebitur quae ipsi seorsum habitanti alimenta praestare So that the wife ought to be a Penitentiary before the husband is bound to receive her or give her any maintenance And no such thing appears or is found in the Verdict in our case It s said by my Brother Twisden Although the wife departs from her husband yet she continues his wife and
receive the bodies of James Earl of Salisbury Anthony Earl of Shaftsbury and Philip Lord Wharton Members of this House and keep them in safe custody within the said Tower during his Majesties pleasure and the pleasure of this House for their high Contempt committed against this House And this shall be a sufficient Warrant on that behalf To the Constable c. John Browne Cler ' Parl ' The Earl of Shaftsbury's Counsel prayed that the Retorn might be Filed and it was so And Friday following appointed for the debating of the sufficiency of the Retorn and in the mean time directions were given to his Counsel to attend the Iudges and the Attorny-General with their Exceptions to the Retorn and my Lord was remanded till that day And it was said that though the Retorn was Field the Court could remand or commit him to the Marshal at their Election And on Friday the Earl was brought into Court again and his Counsel argued the insufficiency of the Retorn Williams said That this cause was of great consequence in regard the King was touched in his Prerogative The Subject in his Liberty and this Court in its Iurisdiction The cause of his Commitment which is retorned is not sufficient for the general allegation of high Contempts is too uncertain for the Court cannot judge of the Contempt if it doth not appear in what act it is Secondly It is not shewed where the Contempt was committed and in favour of Liverty it shall be intended they were committed out of the House of Peers Thirdly The time is uncertain so that peradventure it was before the last Act of general Pardon 1 Roll 192 193. and 219. Russells case Fourthly It doth not appear whether this Commitment were on a Conviction or an Accusation only It cannot be denied but that the Retorn of such Commitment by any other Court would be too general and uncertain Moore 839. Astwick was bailed on a Retorn Quod commissus fuit per mandatum Ni. Bacon Mil. Domini Custodis magni Sigilli Angliae virtute cujusdam Contempt ' in Curia Cancellariae fact ' and in that book it appears that divers other persons were bailed on such general Retorns and the cases have been lately affirmed in Bushells case repeated by the Lord Chief Iustice Vaughan where it is expresly said that on such Commitment and Retorns being too general and uncertain the Court cannot believe in an implicite manner that in truth the Commitment was for causes particular and sufficient Vaughans Rep. 14. accord 2 Inst 52 53 55. and 1 Roll 218. And the Commitment of the Iurors was for acquitting Pen and Mead contra plenam manifestam Evidentiam and it was resolved to be too general for the Evidence ought to appear as certain to the Iudge of the Retorn as it appeared before the Iudge authorized to Commit Russells case 137. Now this Commitment being by the House of Peers will make no difference for in all cases where a matter comes in Iudgment before this Court let the question be of what nature it will the Court is obliged to declare the Law and that without distinction whether the question began in Parliament or no. In the case of Sir George Binion in C. B. there was a long debate whether an Original might be Filed against a Member of Parliament during the time of priviledge and it was urged that it being during the Sessions of Parliament the determination of the question did belong to the Parliament But it was resolved an Original might be Filed and Bridgman then being Chief Iustice said That the Court was obliged to declare the Law in all cases that come in Iudgment before them Hill 24 E. 4. Rot. 4. 7. 10. in Scacc ' in Debt by Rivers versus Cousin The Defendant pleads he was a Servant to a Member of Parliament and ideo capi seu arrest ' non debet and the Plaintiff prays Iudgment and quia videtur Baronibus quod tale habetur privilegium quod magnates c. et eorum familiares capi seu arrestari non debent Sed nullum habetur privilegium quod non debent implacitari Ideo respondeat oustr ' So in Treymiards case a question of priviledge was determined in this Court Dyer 60. In the 14 E. 3. in the case of Sir John and Sir Geoffrey Staunton which was cited in the case of the Earl of Clarendon and is entred in the Lords Iournal an Action of Waste depended between them in the Common-Pleas and the Court was divided and the Record was certified into the House of Parliament and they gave direction that the Iudgment should be entred for the Plaintiff Afterwards in a Writ of Error brought in this Court that Iudgment was reversed notwithstanding the Objection That it was given by Order of the House of Lords for the Court was obliged to proceed according to the Law in a matter which was before them in point of Iudgment The construction of all Acts of Parliament is given to the Courts at Westminster And accordingly they have adjudged of the Validity of Acts of Parliament They have searched the Rolls of Parliament Hob. 109. Lord Hudsons case They have determined whether the Iournals be a Record Hob. 110. When a point comes before them in Iudgment they are not foreclosed by any Act of the Lords If it appears that an Act of Parliament was made by the King and Lords without the Commons that is Felo de se and the Courts of Westminster do adjudge it void 4 H. 7. 18. Hob. 111. and accordingly they ought to do If this Retorn contains in it that which is fatal to it self it must stand or fall thereby It hath been a question often resolved in this Court when a Writ of Error in Parliament shall be a Supersedeas And this Court hath determined what shall be said to be a Session of Parliament 1 Roll 29. and if the Law were otherwise there would be a failour of Iustice If the Parliament were Dissolved there can be no question but the Prisoner should be discharged on a Habeas Corpas and yet then the Court must examine the cause of his Commitment and by consequence a matter Parliamentary And the Court may now have cognisance of the matter as clearly as when the Parliament is Dissolved The party would be without remedy for his Liberty if he could not find it here for it is not sufficient for him to procure the Lords to determine their pleasure for his Imprisonment for before his enlargement he must obtain the pleasure of the King to be determined and that ought to be in this Court and therefore the Prisoner ought first to resort hither Let us suppose for it doth not appear on the Retorn and the Court ought not to enquire of any matter out of it that a supposed contempt was a thing done out of the House it would be hard for this Court to remand him Suppose he were committed to a Forreign prison during the
tried at Common Law though the Subjectum circa quod be Spiritual 2 Rolls 285. placito 45. 2 Rolls 283. Wadworth Andrewes Shall a six-Clark prefer a Bill in Equity for his Fees But a Prohibition was granted quoad c. Glever versus Hynde alios GLever brought an Action of Trespass of Assault and Battery against Elizabeth Hynde and six others for that they at York-Castle in the County of York him the said Plaintiff with force and arms did Assault beat and evil entreat to his damage of 100 l. The Defendants plead to the Vi armis not-guilty to the Assault beating and evil entreating they say that at such a place in the County of Lancaster one _____ Jackson a Curate was performing the Rites and Funeral obsequies according to the usage of the Church of England over the body of _____ there lying dead and ready to be buried and that then and there the Plaintiff did maliciously disturb him that they the Defendants required him to desist and because he would not that they to remove him and for the preventing of further disturbance molliter ei manus imposuerunt c. quae est eadem transgressio absque hoc that they were guilty of any Assault c. within the County of York or any where else extra Comitatum Lancastriae The Plaintiff demurs Turner pro Querente The Defendants do not show that they had any Authority to lay hands on the Plaintiff as that they were Constables Church-wardens or any Officers nor do they justifie by the Authority of any that were If they had pleaded that they laid hands on him to carry him before a Iustice of Peace perhaps it might have alter'd the case The Plaintiff here if he be faulty is lyable to Ecclesiastical Censure and the Statute of Ph. Ma. ann 1. cap. 3. provides a remedy in such cases Jones contra If the Statute of Ph. Ma. did extend to this case yet it does not restrain other ways that the Law allows to punish the Plaintiff or keep him quiet Our Saviour himself has given us a President he whipt buyers and sellers out of the Temple which act of buying and selling was not so great an impiety as to disturb the worship of God in the very act and exercise of it Court The St. of 1 Ph. Ma. concerns Preachers only but there is another Act made 1 Eliz. that extends to all men in Orders that perform any part of publick Service But neither of these Statutes take away the Common Law And at the Common Law any person there present might have removed the Plaintiff for they were all concern'd in the Service of God that was then performing so that the Plaintiff in disturbing it was a Nusance to them all and might be removed by the same rule of Law that allows a man to abate a Nusance Whereupon Iudgment was given for the Defendant Nisi causa c. Anonymus ACtion sur le Case The Plaintiff declares that whereas the Testator of the Defendant was endebted to the Plaintiff at the time of his death in the sum of 12 l. 10 s. that the Defendant in consideration of forbearance promised to pay him 5 l. at such a time and 5 l. more at such a time after and the other 50 shillings when he should have received money then avers that he did forbear c. and saith that the Defendant paid the two five pounds but for the 50 shilllings residue that he hath received money but hath not paid it The Defendant pleaded non Assumpsit which was found against him Wilmot moved in arrest of Iudgment that the Plaintiff doth not set forth how much money the Defendant had received who perhaps had not received so much as 50 shillings he said though the promise was general yet the breach ought to be laid so as to be adequate to the consideration And secondly that the Plaintiff ought to have set forth of whom the Defendant received the money and when and where because the receit was traversable The Court agreed that there was good cause to demur to the Declaration but after a Verdict they would intend that the Defendant had received 50 shillings because else the Iury would not have given so much in damages and for the other exception they held that the Defendant having taken the general issue had waived the benefit thereof Alford Tatnell GRegory Melchisedec Alford were bound joyntly to Tatnell in a Bond of 700 l. the Obligee brought several Actions and obtained two several Iudgments in this Court against the Obligors and sued both to an Outlawry And in Mich. Term. 18 Car. 2. both were returned outlawed In Hill Term following Gregory Alford was taken upon a Cap. utlagatum by Browne Sheriff of Dorset-shire who voluntarily suffered him to escape Tatnell brought an Action of Debt upon this escape against Browne and recover'd and receiv'd satisfaction notwithstanding which he proceeded to take Melchisedec Alford who brought an Audita querela and set forth all this matter in his Declaration but upon a demurrer the Opinion of the Court was against the Plaintiff for a fault in the Declaration viz. because the satisfaction made to the Plaintiff by the Sheriff was not specially pleaded viz. time and place alledged where it was made for it is issuable and for ought appears by the Declaration it was made after the Writ of Audita querela purchased and before the Declaration The Court said if Tatnell had only brought an Action on the case against the Sheriff and recovered damages for the escape though he had had the damages paid that would not have béen sufficient ground for the Plaintiff here to bring an Audita querela but in this case he recovered his Original debt in an Action of debt grounded upon the escape which is a sufficient ground of Action if he had declared well They gave day to show cause why the Declaration should not be amended paying Costs Anonymus AN Action of False Imprisonment The Defendants justifie by vertue of a Warrant out of a Court within the County Palatine of Durham to which the Plaintiff demur'd The material part of the Plea was That there was antiqua Curia tent coram Vicecomite Comitatus c. vocat The County Court which was accustomed to be held de 15 diebus in 15 dies and that there was a Custom that upon a Writ of questus est nobis issuing out of the County Palatine of Durham and delivered to the Sheriff c. that upon the Plaintiffs affirming quandam querelam against such person or persons against whom the questus est nobis issued the Sheriff used to make out a Writ in the nature of a cap. ad satisfac against him or them c. that such a Writ of questus est nobis issued ex Cur ' Cancellarii Dunelm which was delivered to the Sheriff who thereupon made a precept to his Bayliffs to take the Plaintiff who thereupon was arrested which
persons who were all capable that there was no difference betwixt that case and this Ellis said that in Floyd Gregories case reported in Jones it was made a point and that Jones in his argument denied the case of Hunt Singleton he said that himself and Sir Rowland Wainscott reported it and that nothing was said of that point but that my Lord Coke followed the Report of Serjeant Bridgeman who was three or four years their puisne and that he mistook the case Milword Ingram THe Plaintiff declares in an Action of the case upon a quantum meruit for 40 shillings and upon an Indebitat Assumpsit for 40 shillings likewise The Defendant acknowledged the promises but further says that the Plaintiff and he accounted together for divers sums of money and that upon the foot of the Account the Defendant was found to be endebted to the Plaintiff in 3 shillings and that the Plaintiff in consideration that the Defendant promised to pay him those 3 shillings discharged him of all demands The Plaintiff demurred The Court gave Iudgment against the demurrer 1. They held that if two men being mutually endebted to each other do account together and the one is found in arrear so much and there be an express agréement to pay the sum found to be in arrear and each to stand discharged of all other demands that this is a good discharge in Law and the parties cannot resort to the original Contracts But North Ch. Just said if there were but one Debt betwixt them entring into an account for that would not determine the Contract 2. They held also that any promise might well be discharged by paroll but not after it is broken for then it is a Debt Jones Wait. SHrewsbury Cotton are Towns adjoining Sir Samuel Jones is Tenant in Tail of Lands in both Towns Shrewsbury Cotton are both within the Liberties of the Town of Shrewsbury Sir Samuel Jones suffers a Common Recovery of all his Lands in both Vills but the Praecipe was of two Messuages and Closes thereunto belonging these were in Shrewsbury and of c. mentioning those in Cotton lying and being in the Ville of Shrewsbury in the Liberties thereof And whether by this Recovery the Lands lying in Cotton which is a distinct Ville of it self not named in the Recovery pass or not was the question Serjeant Jones argued against the Recovery He cited Cr. Jac. 575. in Monk Butler's case Cr. Car. 269 270. 276. he said the Writ of Covenant upon which a Fine is levied is a personal Action but a Common Recovery is a real Action and the Land it self demanded in the Praecipe There is no President he said of such a Recovery He cited a case Hill 22 23 Car. 2. Rot. 223. Hutton 106. Marche's Reports one Johnson Baker's case which he said was the case in point and resolved for him But the Court were all of Opinion that the Lands in Cotton passed And gave Iudgment accordingly Ellis said if the Recovery were erroneous at least they ought to allo 〈…〉 t till it were reversed Lepping Kedgewin AN Action in the nature of a Conspiracy was brought by the Plaintiff against the Defendant in which the Declaration was insufficient The Defendant pleaded an ill plea but Iudgment was given against the Plaintiff upon the insufficiency of the Declaration Which ought to have been entred Quod Defendens eat inde sine die but by mistake or out of design it was entred Quia placitum praedictum in forma praedicta superius placitat ' materiaque in eodem contenta bonum sufficiens in lege existit c. ideo consideratum est per Cur ' quod Quer ' nil capiat per billam The Plaintiff brings a new Action and declares aright The Defendant pleads the Iudgment in the former Action and recites the Record verbatim as it was To which the Plaintiff demurred And Iudgment was given for the Plaintiff nisi causa c. North Chief Justice There is no question but that if a man mistakes his Declaration and the Defendant demurs the Plaintiff may set it right in a second Action But here it is objected that the Iudgment is given upon the Defendants plea. Suppose a Declaration be faulty and the Defendant take no advantage of it but pleads a plea in bar and the Plaintiff takes issue and the right of the matter is found for the Defendant I hold that in this case the Plaintiff shall never bring his Action about again for he is estopped by the Verdict Or suppose such a Plaintiff demur to the plea in bar there by his demurrer he confesseth the fact if well pleaded and this estops him as much as a Verdict would But if the plea were not good then there is no Estoppel And we must take notice of the Defendants plea for upon the matter as that falls out to be good or otherwise the second Action will be maintainable or not The other Iudges agreed with him in omnibus Atkinson Rawson THe Plaintiff declares against the Defendant as Executor The Defendant pleads that the Testator made his Will and that he the Defendant suscepto super se onere Testamenti praedict c. did pay divers sums of money due upon specialties and that there was a Debt owing by the Testator to the Defendants Wife and that he retained so much of the Testators Goods as to satisfie that Debt and that he had no other Assets The Plaintiff demurred because for ought appears the Defendant is an Executor de son tort and then he cannot retain for his own debt The Plaintiffs naming him in his Declaration Executor of the Testament of c. will not make for him for that he does of necessity he cannot declare against him any other way and of that Opinion was all the Court viz. that he ought to entitle himself to the Executorship that it may appear to the Court that he is such a person as may retain And accordingly Iudgment was given for the Plaintiff Term. Hill 27 28 Car. II. in Com. Banco Smith's Case A Man dies leaving Issue by two several Venters viz. by the first three Sons and by the second two Daughters One of the Sons dies intestate the elder of the two surviving Brothers takes out Administration and Sir Lionel Jenkins Iudge of the Prerogative Court would compell the Administrator to make distribution to the Sisters of the half-blood He prayed a Prohibition but it was denied upon advice by all the Iudges for that the Sisters of the half-blood being a kin to the Intestate and not in remotiori gradu then the Brother of the whole blood must be accounted in equal degree Anonymus AN Action was brought against four men viz. two Attornies and two Solicitors for being Attornies and Solicitors in a cause against the Plaintiff in an inferiour Court falso malitiose knowing that there was no cause of Action against him and
Defendant should be charged to the value of the whole personal Estate or only for as much as he converted Serjeant Barrell argued That he ought to be charged for the whole because 1. He is made Executor by the Will and he is thereby compleat Executor before Probate to all intents but bringing of Actions 2. He has possession of the Goods and is chargeable in respect of that 3. He caused some to be sold and paid a Debt which is a sufficient administration There is found to discharge him 1. His refusal before the Ordinary But that being after he had so far intermeddled avails nothing Hensloe's case 9 Co. 37. An Executor de son tort he confessed should not be charged for more then he converted and shall discharge himself by delivering over the rest to the rightful Executor But the case is different of a rightful Executor that has taken upon him the burden of the Will The second thing found to discharge him is the granting of Administration to another but that is void because here is a rightful Executor that has administred in which case the Ordinary has no power to grant Administration Hob. 46. Keble Osbaston's case The third thing found to discharge him is the delivery of the Goods over to the Administrator but that will not avail him for himself became responsible by his having possession and he cannot discharge himself by delivering the Goods over to a stranger that has nothing to do with them If it be objected that by this means two persons will be chargeable in respect of the same Goods I answer that payment by either discharges both Cr. Car. Whitmore Porter's case The Court was of Opinion that the committing of Administration in this case is a mere void act A great inconvenience would ensue if men were allowed to Administer as far as they would themselves and then to set up a beggarly Administrator they would pay themselves their own Debts and deliver the residue of the Estate to one that 's worth nothing and cheat the rest of the Creditors If an Administrator bring an Action it is a good plea to say that the Executor made by the Will has administred Accordingly Iudgment was given for the Plaintiff Major Stubbing versus Birde Harrison REsolved that a plea may be a good plea in abatement though it contain matter that goes in bar they relyed upon the case in 10 H. 7. fol. 11. which they said was a case in point and Salkell Skelton's case 2 Rolls Reports and Iudgment was given accordingly Term. Trin. 28 Car. II. in Communi Banco PEr North Chief Iustice if there are Accounts betwéen two Merchants and one of them becomes Bankrupt the course is not to make the other who perhaps upon stating the Accounts is found endebted to the Bankrupt to pay the whole that originally was entrusted to him and to put him for the recovery of what the Bankrupt owes him into the same condition with the rest of the Creditors but to make him pay that only which appears due to Bankrupt on the foot of the Account otherwise it will be for Accounts betwixt them after the time of the others becoming Bankrupt if any such were Wing Jackson TRespass Quare vi armis the Defendant insultum fecit upon the Plaintiff was brought in the County Court and Iudgment there given for the Plaintiff But it was reversed here upon a Writ of false Iudgment because the County Court not being a Court of Record cannot fine the Defendant as he ought to be if the cause go against him because of the vi armis in the Declaration but an Action of Trespass without those words will lie in the County Court well enough Anonymus A Vicar libell'd in the Spiritual Court for Tythes of of young Cattle and surmised that the Defendant was seised of Lands in Middlesex of which Parish he was Vicar and that the Defendant had Common in a great Waste called Sedgemore-Common as belonging to his Land in Middlesex and put his Cattle into the said Common The Defendant prayed a Prohibition for that the Land where the Cattle went was not within the Parish of Middlesex The same Plaintiff libelled against the same Defendant for Tythes of Willow-Faggots who suggests to have a Prohibition the payment of 2 d. a year to the Rector for all Tythes of Willow The same Plaintiff libelled also for Tythes of Sheep The Defendant to have a Prohibition suggests that he took them in to feed after the Corn was reaped pro melioratione agriculturae infra terras arabiles non aliter As for the first of these no Prohibition was granted because of that clause in 2 Edw. 6. whereby it is enacted that Tythes of Cattle feeding in a Waste or Common where the Parish is not certainly known shall be paid to the Parson c. of the Parish where the owner of the Cattle lives For the second they held that a modus to the Rector is a good discharge against the Vicar For the third they held that the Parson ought not to have Tythe of the Corn and Sheep too which make the ground more profitable and to yield more Per quod c. Ingram versus Tothill Ren. REplevin Trevill leased to Ingram for 99 years if Joan Ingram his wife Anthony John Ingram his Sons should so long live rendring an Heriot or 40 shillings to the Lessor and his Assigns at the election of the Lessor his heirs and Assigns after their several deaths successive as they are named in the Indenture Trevill deviseth the Reversion John dyes and then Joan dies and the question was whether or no a Heriot were due to the Devisee upon the death of Joan. The Court agreed that the Avowry was faulty because it does not appear thereby whether Anthony Ingram was alive or not at the time of the distress taken for if he were dead the Lease would be determined North. Though Anthony were alive the Devisee of Trevill could not distrain for the Heriot for that the reservation is to him and his Assigns and although the Election to have the Heriot or 40 shillings given to the Lessor his heirs or Assigns yet that will not help the fault in the reservation Ellis There is another fault in the pleading for it is pleaded that Trevill made his Will in writing but it is not said that he dyed so seized for if the Estate of the Devisor were turned to a right at the time of his death the Will could not operate upon it Also it is said that the Avowant made his Election and that the Plaintiff habuit notitiam of his Election but it is not said by whom notice was given for these causes Iudgment was given for the Plaintiff It was urged likewise against the Avowant that no Heriot could be due in this case because Joan did not die first but the course of succession is interrupted and that a Heriot not being due of
Windham and Scroggs contr for that the Iury are the sole Iudges of the damages At another day it was moved in arrest of Iudgment That the words are not actionable And of that Opinion was Atkyns But North Windham Scroggs contr And so the Plaintiff had Iudgment Atkyns The occasion of the making of the Stat. of 5 Rich. 2. appears in Sir Robert Cotton's Abr. of the Records of the Tower fol. 173. num 9. 10. he says there That upon the opening of that Parliament the Bishop of St. Davids in a Speech to both Houses declared the Causes of its being summoned and that amongst the rest one of them was to have some restraint laid upon Slanderers and Sowers of Discord which sort of men were then taken notice of to be very frequent Ex malis moribus bonae Leges The Preamble of the Act mentions false News and horrible Lyes c. of things which by the said Prelates c. were never said done nor thought So that it seems designed against telling stories by way of News concerning them The Stat. does not make or declare any new Offence Nor does it inflict any new Punishment All that seems to be new is this 1. The Offence receives an aggravation because it is now an Offence against a positive Law and consequently deserves a greater Punishment as it is held in our Books That if the King prohibit by his Proclamation a thing prohibited by Law that the Offence receives an aggravation by being against the King's Proclamation 2. Though there be no express Action given to the party grieved yet by operation of Law the Action accrews For when ever a Statute prohibits any thing he that finds himself grieved may have an Action upon the Statute 10 Rep. 75. 12 Rep. 100. there this very Case upon this Statute was agreed on by the Iudges So that that is the second new thing viz. a further remedy An Action upon the Stat. 3. Since the Stat. the party may have an Action in the tam quam Which he could not have before Now every lye or falsity is not within the Stat. It must be horrible as well as false We find upon another occasion such a like distinction It was held in the 12 Rep. 83. That the High-Commission Court could not punish Adultery because they had Iurisdiction to punish enormous Offendors only So that great and horrible are words of distinction Again it extends not to small matters because of the ill consequences mentioned Debates and Discord betwixt the said Lords c. great peril to the Realm and quick subversion and destruction of the same Every word imports an aggravation The Stat. does not extend to words that do not agree with this Description and that cannot by any reasonable probability have such dire effects The Cases upon this Statute are but few and late in respect of the antiquity of the Act. It was made Anno 1379. for a long time after we hear no tydings of an Action grounded upon it And by reading it one would imagine that the makers of it never intended that any should be But the Action arises by operation of Law not from the words of the Act nor their intention that made it The first Case that we find of an Action brought upon it is in 13 H. 7. which is 120 years after the Law was made so that we have no contemporanea expositio which we often affect That Case is in Keil 26. the next in 4 H. 8. where the Duke of Buckingham recovered 40 l. against one Lucas for saying that the Duke had no more conscience than a Dog and so he got money he cared not how he came by it He cited other Cases and said he observed That where the words were general the Iudges did not ordinarily admit them to be actionable otherwise when they charged a Peer with any particular miscarriage Serjeant Maynard observed well That the Nobility and great men are equally coucerned on the Defendants part for Actions upon this Statute lie against them as well as against the meanest Subject Acts of Parliament have been tender of racking the King's Subjects for words And the Scripture discountenances mens being made Transgressors for a word I observe that there is not one case to be met with in which upon a motion in arrest of Iudgment in such an Action as this the Defendant has prevailed The Court hath sometimes been divided the matter compounded the Action has abated by death c. but a positive Rule that Iudgment should be arrested we find not So that it is time to make a President and fix some Rules according to which men may demean themselves in converse with great persons Misera est servitus ubi jus est vagum Since we have obtained no Rules from our Predecessors in Actions upon this Statute we had best go by the same Rules that they did in other Actions for words In them when they grew frequent some bonnds and limits were set by which they endeavoured to make these Law certain The Actions now encrease The stream seems to be running that way I think it is our part to obviate the mischief So he was of Opinion That the Iudgment ought to be arrested but the Court gave Iudgment for the Plaintiff North. There are three sorts of Hab. Corp. in this Court 1. Hab. Corp. ad respondendum and that is when a man hath a cause of suit against one that is in prison he may bring him up hither by Hab. Corp. and charge him with a Declaration at his own suit 2. There is a Hab. Corp. ad faciendum recipiendum and that Defendants may have that are sued in Courts below to remove their Causes before us Both these Hab. Corp. are with relation to the suits properly belonging to the Court of Common Pleas. So if an inferiour Court will proceed against the Law in a thing of which we have Conisance and commit a man we may discharge him upon a Hab. Corp. this is still with relation to Common Pleas. A third sort of Hab. Corp. is for priviledged Persons But a Hab. Corp. ad subjiciendum is not warranted by any Presidents that I have seen Term. Pasch 29 Car. II. in Communi Banco Hall Booth NOrth In Actions of Debt c. the first Process is a Summons if the Defendant appears not upon that a Cap. goes and then we hold him to Bail The reason of Bail is upon a supposition of Law that the Defendant flies the Iudgment of the Law And this supposition is grounded upon his not appearing at the first For if he appear upon the Summons no Bail is required And this is the reason why it is held against the Law for any inferiour Court to issue out a Capias for the first Process For the liberty of a man is highly valued in the Law and no man ought to be abridged of it without some default in him A Church is in decay the Bishops Court must
a distinction Our Saviour is called the Son of David though there were 28 Generations betwixt David and him And a republication may impose another sense upon words different from what they had when they were first written as if a man devise all his Lands in Dale and have but two Acres in Dale the words now extend to no more then those two Acres and if he purchase more and dye without any new publication the new purchased Lands will not pass But if there were a new publication after the purchase they would then pass well enough If a man has issue two Sons called Thomas and he makes a devise to his Son Thomas this may be ascertained by an averment Now suppose that Thomas the deviseé dye living the Father and afterward the Father publisheth his Will anew and says that he did intend that his Son Thomas now dead should have had his Land but now his Will and intent is that Thomas his younger Son now living shall take his Land by the same Will In this case to be sure the second Son Thomas shall take by the devise Here the import of the words is clearly altered by the republication Atkyns The words of this Will would not of themselves be sufficient to carry the Land to the Grand-child nor would the intention of the Devisor do it without them but both together do the business Quae non prosunt singula juncta juvant Wyndham Scroggs differed in Opinion and the cause was adjourned to be argued the next Term. North. A man admitted in forma pauperis is not to have a new Trial granted him for he has had the benefit of the Kings Iustice once and must acquiesce in it We do not suffer them to remove causes out of inferiour Courts They must satisfie themselves with the Iurisdiction within which their Action properly lieth Farrington Lee. ASsumpsit The Plaintiff declares upon 2 indebitatus Assumpsits and a third Assumpsit upon an insimul computasset The Defendant pleaded non Assumpsit infra sex annos the Plaintiff replied that himself is a Merchant and the Defendant his Factor and recites a clause in the Statute in which Actions of Account between Merchants and Merchants and Merchants and their Factors concerning their Trade and Merchandize are excepted and avers that this money became due to the Plaintiff upon an account betwixt him and the Defendant concerning Merchandise c. the Defendant makes an impertinent rejoynder to which the Plaintiff demurs Nudigate pro Querente This Statute is in the nature of a penal Law because it restrains the liberty which the Plaintiff has by the Common Law to bring his Action when he will and must therefore be construed beneficialy for the Plaintiff Pl. 54. Cr. Car. 294. Finche Lambe's case to this purpose Also this exception of Accounts between Merchants and their Factors must be liberally expounded for their benefit because the Law-makers in making such an exception had an eye to the incouragement of Trade and Commerce The words of the exception are other then such Accounts as concern the Trade of Merchandise c. now this Action of ours is not indeed an Action of Account but it is an Action grounded upon an Account And the Plaintiff being at liberty to bring either the one or the other upon the same cause of Action and one of the Actions being excepted expresly out of the limitation of the Statute the other by Equity is excepted also He cited Hill 17 Car. 1. in Marshe's Reports 151. Jones 401. Sandys Blodwell Mich. 13 Car. 1. and prayed Iudgment for the Plaintiff Serjeant Baldwin contra He said it did not appear in the Declaration that this Action was betwixt a Merchant and his Factor so that then the plea in bar is prima facie good And when he comes and sets it forth in his Replication he is too late in it and the replication is not pursuant to his Declaration But all the Court was against him in this Then he said the Statute excepted Actions of Account only and not Actions upon an indeb Assumpsit Cur ' Whereas it has been said by Serjeant Nudigate that the Plaintiff here has an Election to bring an Action of account or an Indebitat Assumpsit that is false for till the Account be stated betwixt them an Action of Account lies and not an Action upon the Case When the Account is once stated then an Action upon the case lies and not an Action of Account Et per North if upon an Indebitat Assumpsit matters are offered in evidence that lie in account I do not allow them to be given in evidence North Wyndham Scroggs the exception of the Statute goes only to Actions of Account and not to other Actions And we take a diversity betwixt an account current and an account stated After the account stated the certainty of the Debt appears and all the intricacy of account is out of doors and the Action must be brought within six years after the account stated But by North if after an account stated upon the ballance of it a sum appear due to either of the parties which sum is not paid but is afterward thrown into a new account between the same parties it is now slip't out of the Statute again Scroggs The Statute makes a difference betwixt Actions upon Account and Actions upon the case The words would else have been All Actions of Account and upon the Case other then such Actions as concern the Trade of Merchandise But it is otherwise penned other then such Accounts as concern c. and as this case is there is no account betwixt the parties the account is determined and the Plaintiff put to his Action upon an insimul computasset which is not within the benefit of the exception Atkyns I think the makers of this Statute had a greater regard to the persons of Merchants then the causes of Action between them And the reason was because they are often out of the Realm and cannot always prosecute their Actions in due time The Statute makes no difference betwixt an account current and an account stated I think also that no other sort of Tradesmen but Merchants are within the benefit of this exception and that it does not extend to Shop-kéepers they not being within the same mischief Adjurnatur Horn versus Chandler COvenant upon an Indenture of an Apprentice wherein the Defendant bound himself to serve the Plaintiff for seven years The Plaintiff sets forth the custom of London That any person above 14 and under 21 unmarried may bind himself Apprentice c. according to the custom and that the Master thereupon shall have tale remedium against him as if he were 21 and alledges that the Defendant did go away from his Service per quod he lost his Service for the said term which term is not yet expired The Defendant pleads a frivolous plea. To which the Plaintiff demurs Heley Though such a Covenant shall
is 24 Ed. 3. 30. Pl. 27. which is our very case The King brings a Quare Impedit for a Church appendant to a Mannor as a Guardian the Defendant makes a Title and traverseth the Title alledged by the King in his Count viz. the appendancy the King replies and Traverses the Defendants Title For this cause the Defendant demurs and Iudgment was for the King In this case it doth not appear in the pleading that the King was in by matter of Record and so it is our very case For the King may be in by possession by virtue of a Wardship without matter of Record by Entry c. Stamf. Prerog 54. I rely upon these two Cases But 7 H. 8. Keil 175. is somewhat to the purpose Per Fitz. In a Ravishment of Ward by the King if the Defendant make a Title and traverse the Kings Title the Kings Attorney may maintain the Kings Title and Traverse the Defendants Title I think there is no difference betwéen the Kings being in possession by matter of Record and by matter of Fact Again If matter of Record be necessary here is enough viz. The Queens Presentation under the Great Seal of England And here is a descent which is and must be Jure Coronae It is unreasonable that a Subject should turn the King out of possession by him that hath no Title This is a Prerog Case As to the Statutes objected by my Brother Archer they concern not this case The first enables the Patron to counterplead But here the Patron pleads The rest concern the Kings Presenting En auter droit But here it is in his own Right I think the King in our case may fly upon the Defendants Title and there is no inconvenience in it For the Kings Title is not a bare suggestion For it is confessed by the Defendant that the Quéen did Present But he alledges it was by Lapse For another reason I think Iudgment ought to be for the King viz. because the Defendant has committed the first fault For his Bar is naught in that he has traversed the Queens Seisin in Grosse whereas he ought to have traversed the Queens Presentment modo forma For where the Title is by a Seisin in Grosse it is repugnant to admit the Presentment and deny the Seisin in Grosse because the Presentment makes it a Seisin in Grosse 10 H. 7. 27. Pl. 7. in point and so is my Lord Buckhurst's Case in 1 Leonard 154. The traverse here is a matter of substance But if it be but Form it is all one For the King is not within the Statute 27 El. cap. 5. So he concluded that Iudgment ought to be given for the King Doctor Lee's Case A Motion was made by Raymond for a Writ of Priviledge to be discharged from the Office of Expenditour to which he was elected and appointed by the Commissioners of Sewers in some part of Kent in respect of some Lands he had within the Levell He insisted that the Doctor was an Ecclesiastical person Archdeacon of Rochester where his constant attendance is required Adding that the Office to which he was appointed was but a mean Office being in the nature of that of a Bayliff to receive and pay some small sums of money and that the Lands in respect whereof he is elected were let to a Tenant V. 1. Cr. 585. Abdy's case It was objected against this that this Archdeacons Predecessors did execute this Office and the Court ordered that notice should be given and cause shewn why the Doctor should not do the like Afterward Rainesford Morton only being in Court it was ruled he should be priviledged Because he is a Clergy-man F. B. 175. r. But I think for another reason viz. because the Land is in Lease and the Tenant if any ought to do the Office Take the Writ Lucy Lutterell vid. versus George Reynell Esq George Turbervile Esq John Cory Ann Cory THe Plaintiff as Administratrix to Jane Lutterell durante minori aetate of Alexander Lutterell the Plaintiffs second Son declared against the Defendants in an Action of Trespass for that they simul cum John Chappell c. did take away 4000 l. of the moneys numbred of the said Jane upon the 20th day of October 1680. and so for seven days following the like sums ad damnum of 32000 l. Upon a full hearing of Witnesses on both sides the Iury found two of the Defendants guilty and gave 6000 l. damages and the others not guilty A new Trial was afterwards moved for and denied At the Trial Mr. Attorney General excepted against the Evidence that if it were true it destroyed the Plaintiffs Action inasmuch as it amounted to prove the Defendants guilty of Felony and that the Law will not suffer a man to smooth a Felony and bring Trespass for that which is a king of Robbery Indeed said he if they had been acquitted or found guilty of the Felony the Action would lye and therefore it may be maintained against Mrs. Cory who was as likewise was William Maynard acquitted upon an Indictment of Felony for this matter but not against the rest But my Lord Chief Baron declared and it was agreed that it should not lye in the mouth of the party to say that himself was a Thief and therefore not guilty of the Trespass But perhaps if it had appeared upon the Declaration the Defendant ought to have been discharged of the Trespass Quaere what the Law would be if it appeared upon the pleading or were found by special Verdict My Lord Ch. Baron did also declare and it was agréed that whereas W. Maynard one of the Witnesses for the Plaintiff was guilty as appeared by his own Evidence together with the Defendants but was left out of the Declaration that he might be a Witness for the Plaintiff that he was a good and legal Witness but his credit was lessened by it for that he swore in his own discharge For that when these Defendants should be convicted and have satisfied the Condemnation he might plead the same in Bar of an Action brought against himself But those in the simul cum were no Witnesses Several witnesses were received and allowed to prove that William Maynard did at several times discourse and declare the same things and to the like purpose that he testified now And my Lord Chief Baron said though a hear-say was not to be allowed as a direct Evidence yet it might be made use of to this purpose viz. to prove that William Maynard was constant to himself whereby his Testimony was Corroborated One Thorne formerly Mr. Reynell's Servant being Subpoened by the Plaintiff to give Evidence at this trial did not appear But it being sworn by the Exeter Waggoner that Thorne came so far on his Iourney hitherward as Blandford and there fell so sick that he was not able to travel any further his Depositions in Chancery in a Suit there between these parties about this matter were admitted to be read
Maskew which I confess is a full authority for this that they need not joyn The Case was thus The Testator recovers a Iudgment and dies making his Will thus Also I devise the residue of my Estate to my two Daughters and my Wife whom I make my Executrix I confess I cannot tell why but the Spiritual Court did judge them all both the two Daughters as well as the Wife to be Executrices and therefore we the Iudges must take them to be so The Wife alone proves the Will with a reservata potestate to the Daughters when they should come in But this makes nothing at all in this Case I think this is according to their usual form The Wife alone sues a Scire facias upon this Iudgment and therein sets forth this whole matter viz. that there were two other Executrices which were under seventeen c. It was adjudged for the Plaintiff and affirmed in a Writ of Errour in Cam. Scacc̄ that the Scire facias was well brought by her alone But first I cannot see how a Writ of Errour should lie in that Case in Cam. Scacc̄ For it is not a Cause within 27 Eliz. 2. What reason is there for Iudgment a reason may be given that before an Executor comes to seventeen he is no Executor But I say he is quoad esse though not quoad Excecutionem A Wife Administratrix under seventeen shall joyn with her Husband in an Action and why shall not the Infants as well in our Case Yelv. 130. is express that the Infant must joyn and be named It is clear that no Administration durante minore aetate can be committed in this Case For all the Executors make but one person and therefore why may not all joyn 2. Admitting they may joyn whether the Infants may sue by Attorney I hold that in no Case an Infant shall sue or be sued either in his own or auter droit by Attorney There are but four ways by which any man can sue In propria persona per Attornatum per Guardianum and per Prochein amy 1 Ro. 747. aut 340. 400. post 747. An Infant cannot sue in propria persona That was adjudged in Dawkes versus Peyton It was an excellent Case and there were many notable Points in it First It was Resolved That a Writ of Errour might be brought in this Court upon an Errour in Fact in the Petty Bagg 2. That the Entry being general venit such a one it shall he intended to be in propia persona 3. That it was Error for the Infant in that Case to appear otherwise than by a Guardian 4. That the Errour was not helped by the Statute of Jeoffails In a Case between Colt Sherwood Mich. 1649. an Infant Administrator sued and appeared per Guardianum and it appeared upon the Record that he was above seventeen years of age I was of Council in it and we insisted it was Errour but it was adjudged That he appeared as he ought to appear and that he ought not to appear by Attorney And the Reasons given were First Because an Infant cannot make an Attorney by reason of his inability Secondly Because by this means an Infant might be amerced pro falso Clamore For when he appears by Attorney non constat unless it happen to be specially set forth that he is an Infant and so he is amerced at all adventures and to relieve himself against this he has no remedy but by a Writ of Errour For Errour in Fact cannot be assignd ore tenus And it were well worth the Cost to bring a Writ of Errour to take off an amercement But it is said That the Infants may appear by Attorney in this Case because they are coupled and joyned in company with those of full age I think that makes no difference for that reason would make such appearance good in case that they were all Defendants But it is agreed That if an Infant be Defendant with others who are of full age he cannot appear by Attorney The reason is the same in both Cases If an Infant and two men of full age joyn in a Feoffment and make a Letter of Attorney c. this is not good nor can in any sort take away the imbecility which the Law makes in an Infant I conclude I think the Plaintiffs ought to joyn but the Infants ought to appear by Guardian But since my two Brothers are of another mind as to the last Point there must be Iudgment that the Defendant respondeat ouster Nota Coleman argued for the Defendant his Argument which ought to have been inserted above was to this effect First These five cannot joyn had there been but one Executor and he under seventeen years the Administrator durant̄ minor̄ c. ought to have brought the Action 5 Co. 29. a. But since there are several Executors and some of them of full age there can be no Administration durant ' minor̄ Those of full age must Administer for themselves and the Infants to But the course is that Executors of full age prove the Will and the other that is under age shall not come in till his age of seventeen years But now the question is How this Action should have beén brought I say according to the President of Hatton versus Maskew which was in Cam. Scacc̄ Mich. 15 Car. 2. Rot. 703. wherein the Executor who was of full age brougt the Scire fac̄ but set forth that there were other two Executors who were under age and therefore they which were of full age pray Iudgment It was resolved the Scire fac̄ was well brought and they agreed That the Cases in Yelverton 130. was good Law because in that Case it was not set forth specially in the Declaration that there was another Executor under age So that they Resolved That the Executor of full age could not bring the Action without naming the others 2. However the Infants ought to sue by Guardian and where Rolls and other Books say that where some are of age and some under they may all sue by Artorney It is to be understood of such as are indeed under 21 but above 17. Respondeas ouster After this the Suit was Compounded Term. Pasch 22 Car. II. Regis The great Case in Cancellaria between Charles Fry and Ann his Wife against George Porter Resolved That there is no Relief in Equity against the Forfeiture of Land limited over by Devise in Marrying without consent c. Many particulars concerning Equity THe Case was Montjoy Earl of Newport was seized of an house called Newport-house c. in the County of Middlesex and had three Sons who were then living and two Daughters Isabel married to the Earl of Banbury with her Fathers consent who had issue A. the Plaintiff and Ann married to Mr. Porter without her Fathers Consent who had issue D. both these Daughters dyed The Earl of Newport made his Will in this manner I give and bequeath to my dear wife