given pro Quer. Termino Paschae Anno 34 Car. II. In Banco Regis Clayton versus Gillam IN Trespass for breaking and entering of his Close and Feeding c. and laying thereon certain pieces of Timber c. Et continuando Transgressionem praed ' After Verdict for the Plaintiff it was moved in Arrest of Judgment that one of the Trespasses viz. The laying of Timber could not be with a Continuando But it was resolved by the Court that continuando transgressionem praed ' shall be referred only to the Trespasses which may properly be said with a continuando But if the continuando had been expresly laid for that Trespass all would have been naught as it was resolved in a Case in this Court between Letchford and Elliot 16 Car. 2. The Earl of Shaftsbury versus Cradock IN an Action of Scandalum Magnatum for saying That the Earl was a Traytor c. The Action being laid in London where the words were supposed to be spoken It was moved in behalf of the Defendant that the Venue might be changed into some other Country and Affidavits were read that the Plaintiff had a great interest in the City and an intimacy with the present Sheriffs so that the Defendant could not expect an indifferent Tryal there and thereupon the Court did think fit to take the Cause out of London and gave the Earl the Election of any other County but he refused to Trie it elsewhere and would rather let the Action fall Curtis versus Inman IN Debt for the Penalty forfeited by the Statute of 5 Eliz. for using the Trade of a Grocer having not been Bound an Apprentice It was moved that the Action lies not in this Court because 21 Jac. cap. 4. Enacts That Actions popular shall be brought before Justices of Assize of the Peace c. But a Case was cited which was adjudged in this Court Hill 20 21 Car. 2. between Barns and Hughes which see before that such Action would lie But the Court notwithstanding in this Case said they would hear Arguments The Earl of Shaftsbury versus Graham al. IN an Action upon the Case in the nature of a Conspiracy the Declaration was That the Defendants did conspire to indict the Plaintiff of High Treason and for that purpose did Sollicit one Wilkinson and endeavoured to Suborn him to give false Testimony against the said Earl and an Indictment was offered at the Sessions at the Old Baily in London by the Defendant in pursuance of the said Conspiracy which Indictment the Grand Jury there found Ignoramus c. It was moved in behalf of the Defendants that whereas the Conspiracy was in the Declaration alledged to be in London that the Court would change the Venue and an Affidavit of the Defendants was produced That the Conspiracy alledged in the Declaration if there were any such was in Surry and not in London Note Wilkinson at the time of the supposed Conspiracy was a Prisoner in the Kings Bench and Affidavits were produced likewise to shew that the Plaintiff had such Interest with the present Sheriffs of London that an indifferent Jury was not like to be returned and that several Persons named to be material Witnesses for the Defendant durst not come to the Tryal if it were in London for fear of their Lives in regard they had been so affronted and abused when they were produced to prove the before mentied Indictment at the Old Baily and several other matters were alledged But it was insisted upon by the Counsel for the Earl That First The Venue uses not to be changed in Case of a Peer who is one of the Comites Regis and shall not be forced to Travel into another County to trie his Case as a Common Person Secondly That the present Case was local viz The preferring the Indictment at the Old Baily and where the Cause of Action ariseth in two Counties the Plaintiff hath his Election to bring it in either 7 Co. Bulwers Case But the Court declared that they were satisfied that no indifferent Tryal could be had in London they remembered they were affronted themselves when they were at the Old Baily upon the before mentioned Indictment And they resolved that they had a power to alter the Venue in the case of a Peer as it had been done about six years since in a Scandalum Magnatum brought by the Earl of Salisbury in this Court. And also they said that the Cause of Action here was Transitory viz. The conspiring and that the preferring of the Indictment was but in aggravation of Damages and the Action would lie altho' none had been offered or if preferred by other Persons than the Conspirators 'T is true when the matter ariseth in several plates the Plaintiff has Election but if there be like to be no indifferent Tryal in the place where it is laid 't is usual with this Court to change the Venue But the Court said they would not confine the Plaintiff to Surry if he could shew them cause that that was not an indifferent County Vid. 42 Ed. 3. 14. Termino Sancti Michaelis Anno 34 Car. II. In Banco Regis Denison versus Ralphson IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of a Sum of Money paid by the Plaintiff did promise to deliver to him ten Pots of good and Merchandizable Pot Ashes and that not regarding his Promise and to defraud him he delivered him ten Pots of Ashes not Merchandizable but mixed with Dirt c. And declared also that pro quadam pecuniae summa c. the Defendant vendidit to the Plaintiff ten other Pots of Ashes Warrantizando c. that they were good and Merchandizable and that he delivered them bad and not Merchandizable knowing them to be naught and to this Declaration the Defendant Demurred And it was argued by Sanders That here were Causes of Action of several Natures put into one Declaration and they required several Pleas viz. Non Assumpsit and Not guilty and therefore ought not to be joyned Thompson for the Plaintiff cited a Case between Matthews and Hoskin An Action against a Common Carrier and declared upon the Custom of the Realm and that he had not delivered the Goods and declared also in a Trover and Conversion upon the same matter and after Verdict upon motion in Arrest of Judgment the Action was adjudged well brought 16 and 17 Car. 2. Hill in this Court. So an Action against one for twenty shillings upon the Hire of an Horse and declared further that he abused him and held good Curia Those Cases were after Verdict Causes upon Contract which are in the Right and Causes upon a Tort cannot be joyned for they do not only require several Pleas but there is several Process the one Summons Attachment c. the other Attachment c. These upon the Contract lie for and against Executors the other not but these seem to be both upon the Contract viz. That
remedied either by the words or intention of the Act. Vid. Ante. Nokes and Stokes versus .... THey two brought an Action of Debt upon a Bond. The Defendant pleads the Release of one of the Plaintiffs They pray Oyer of the Release which was of all Actions Suits c. that he had against the Defendant upon his own account and pleads that this Bond was not upon his own account and upon this Issue is taken and found for the Plaintiff Now it was moved in Arrest of Judgment That this Issue was frivolous And upon the whole matter it appears that the Plaintiffs have no cause of Action for the Release of one Obligée dischargeth the Bond and it must be upon his own account But the Court Seriatim delivered their Opinions for the Plaintiffs for he might take this Bond as a security of a Debt with which he was intrusted for another And the truth of the case upon the Evidence was That the Defendant being charged with the payment of divers Legacies to Strangers was requested by one of the Plaintiffs to enter into Bond to him and the other Plaintiff who afterwards made the Release that should be Conditioned for the payment of the Money Bequeathed to the Obligees to the use of the Strangers which not being done the Defendant was Arrested at the Suit of the Plaintiffs this being made known to the Plaintiff who was absent at the taking of the Bond and knowing nothing of the Suit was contented to Release all Actions he had against the Defendant upon his own account King versus Atkins DEbt upon a Bond of 2000 l The Defendant demands Oyer of the Condition which was That whereas the Plaintiff was bound with the Defendant to the King that the Defendant should give a true account of such Moneys as he should receive for the Excise and Chimney Money And that the Defendant should save him harmless from all Payments or Suits upon that Bond and pleads that no Suits Process or Execution was against the Plaintiff upon that Bond issint he saved him harmless The Plaintiff replies a Scire facias issued against him out of the Exchequer upon the Bond and that he was forced to retain an Attorney and that he paid 1 s for his Appearance To this the Defendant Demurrs Because he did not alledge that he gave him notice And this was said not to be like Broughtons Case 5 Co. For there the Defendant knew the Money was to be paid at the day and it was to save him harmless from the single thing but here from a great many so that it was requisite he should have notice Where the Mesne is bound to acquit the Tenant the Tenant shall not recover Damages unless he gives the Mesne notice that he is distrained so that he may Replevy the Beasts But it was said That no notice ought to be given where the thing is an Act of a third person as to pay Money when J. S. comes into England To which it was answered That did not lie in the Conusance of either Party but this was in the notice of the Obligée But that which séemed most against the Demurrer in this case was That the Defendant having pleaded no Process c. he takes upon him the knowledge of it Vid. 1 Cro. 54. And if in the Replication the Plaintiff had alledged notice and the Defendant had Traversed it it would have been a departure and the Court advised until the next Term. Postea Welsh versus Bell. TRespass quare clausum fregit and taking of two Horses out of his Cart The Defendant justifies the taking of them as a Distress for Rent due to him And to this the Plaintiff Demurrs First He could not sever the Horses but ought to have distreined Cart and all according to the Book of 20 Edw. 4. 3. Distress of a Cart loaden with Corn Rolls 270. 3 Cro. 783. and four Horses in it adjudged not excessive because he could not sever the Horses And in 3 Cro. 7. a Difference is taken between Distress for Rent and Damage Feasant to this purpose And the common ground is that a Distress must be taken so as it may be returned in the same plight 1 Inst 47. a. Secondly It appeared also in the Declaration That there was a Servant of the Plaintiffs in the Cart by reason of which it was alledged that the Cart and Horses were priviledged for a Horse cannot be distrained upon which a Man is Riding 3 Cro. 549 596. Ed Adjornatur Twisden cited a Case adjudged before Rolls Chief Justice in Trespass for taking of his Trunk The Case was the Defendant distrained it for Rent and being Informed that there were things of Value in it he caused it to be Corded to prevent damage And for that he was adjudged a Trespasser ab initio Anonymus AN Action on the Case was brought against the Defendant for taking and keeping of the Plaintiffs Wife from him And upon Issue joyned the Court was moved to defer the Trial the Case being that the Wife was Daughter of the Defendant and taken from him by the Plaintiff without his Consent and as the Plaintiff affirmed Married to him Now this Marriage was questioned in the Court Christian And the Court thought it reasonable that the Trial should be delayed until the Marriage was determined there But they were Informed on the other side that the Court were ready to give Sentence That the Marriage was good and the Defendant had Appealed Wherefore they thought fit that the Trial of the Cause should proceed The King versus Nelson AN Order for the keeping of a Bastard Child being removed by Certiorari it was moved to have it quashed because it was ad Sessionem pacis in Com' praed ' and doth not say Tent ' pro ' Com' praedict ' Sed non allocatur For such strictness is not required in an Order But Twisden said it ought to be so in an Indictment It was further alledged that it ought to appear That the Child was likely to be chargeable to the Parish which was agreed But that was sufficiently set forth in the Order for upon Reading of it it appeared that he was ordered to pay such Charges as the Parish had been at Wherefore the Court confirmed the Order and awarded that he should pay such Costs as the Parish had been at for Contesting of it as was done formerly in one Haslefoot's Case And besides the Court Committed Nelson Anonymus DEbt upon a Bond Conditioned to perform Covenants If the Defendant pleads performance without demanding Oyer of the Indenture it is a good cause of Demurrer Anonymus IN Covenant the Plaintiff declares That he let the Defendant a House and that he Covenanted to Repair it The Defendant pleads That it was sufficiently Repaired before the Action brought The Plaintiff Demurs because he doth not plead That he Repaired it for it may be the Plaintiff himself did it Keeling and Raynsford inclined against the Demurrer because
are few that she goes to but lye desperately ill or dye under her hands Action good 21 Thou art a thievish Rogue and didst steal Plate from Wadham Colledge in Oxford The Words spoke in London where to be tryed 22 263 He is a Forsworn Justice and not fit to be a Justice of Peace if I did see him I would tell him so to his Face Action good 50 You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen 53 Of an Attorney That he could not Read a Declaration 98 He hath broke 2 or 3 of his Fathers Ribs of which he shortly after dyed and I will complain to a Justice of him he may be hangd for the Murder tho it were done 20 years since Action good 117 Of a Woollen Draper You are a Cheating Fellow and keep a false Book Action lies 117 He hath Forged his Vncle Row's Will 149 He had pickt his Pocket against his will and was a Pick pocket Not Actionable 213 Of a Justice of Peace He is not worth a groat and is gone to the Dogs Not Actionable 258 He is a false cheating Knave and keeps a false Debt Book with which he cheats the Country Actionable 263 For charging the Plaintiff with Felony generally Good 264 Of an under Carrier of Post Letters He hath broken up Letters and taken out Bills of Exchange Not lies 275 The Defendant said to the Plaintiff I know my self and I know you I never buggerd a Mare The words Actionable 276 He would have given D. Money to have Robbed G's House and he did Rob it 323 Administration By the Civil Law Administration ought to be committed to the Residuary Legatee whether Assets or not Assets 218 To which the Court of K. B. strongly inclined 219 316 Admiralty May punish one that resists the Process of their Court and may Fine and Imprison for a Contempt in the face of their Court but not give the Party Damages 1 Where Sentence is obtained in a Foreign Admiralty one may Libel for Execution thereof here thô the matter were not originally determinable in our Admiralty yet if the Contract were made on Land beyond Seas Prohibition lies 32 Its Jurisdiction in seizing Ships 173 It hath Jurisdiction of Ships taken by Pirates but not if taken by Enemies 308 Hath Jurisdiction for Mariners Wages 343 Age. Bond Conditioned that the Son and the Daughter of J. S. shall at their full Age give Releases this must be taken at their respective Ages 58 Alien Of his Capacity and Incapacity 417 Amendment The Court having Power over their own Entries and Judgments can amend defaults of Clerks after Judgment thô in an other Term 132 Mistake of the name in a Judgment in Ireland amendable here 217 No Amendment of a Return after the Filing 336 Apprentice See Statutes Whether the Quarter Sessions can discharge an Indenture of Apprenticeship 174 Appurtenant See Reputation A thing Appurtenant may be by Grant but a thing Appendant must be by Prescription 407 Connisance of Pleas may be created by the King 's Grant as he pleases either in Gross or as Appurtenant ibid. Arbitrament Award What Pleas good in Arbitrament and what not 50 71 87 184 Arrest Where the Bayliff may break a House upon an Arrest 306 Assault and Battery In an Action for both the Defendant may be found Guilty of the Assault but not of the Battery and here no more Costs than Damages 256 Assets Bonds and Specialties no Assets till the Mony be paid 96 Assignment Assignment where the Assignor keeps Possession Fraudulent and such Fraud may be avered 329 331 The word Assignees includes Assignees in Law as well as Fact 340 Assumpsit See Pleading Whether a Stranger to the Consideration may bring the Action 6 7 318 332 Good cause of Demurrer in Assumpsit where the Consideration carries nothing of trouble or prejudice to the Plaintiff or benefit to the Defendant 9 A mistake in the time relating to a Promise good after a Verdict 14 see also 119 Whether multum gratissimum servitium and multa Beneficia be sufficient Considerations in an Assumpsit 27. So for opere labore Servitio 44 Infant may make a Consideration whereon to ground an Assumpsit 51 The Breach must be laid as the Promise is 64 Forbearance of Suit where a good Consideration whereon to ground an Assumpsit 120 152 154 159 Claim without proof where good to ground a Consideration in an Assumpsit 211 Of Reciprocal Promises 177 214 Assumpsits in Consideration of Marriage 262 268 One Excommunicated for not paying in a Church Rate a Promise to pay in Consideration of Absolution Good 297 In Consideration of delivering Goods to a third person Good 311 Attorney See Mandamus Attorneys at large have the same priviledge with Clerks of the Court 1 Whether an Attorney in the Courts at Westminster may practise in Inferiour Courts 11 Attorneys shall be discharged of the Service of the Common Wealth à fortiori of any private Service as Constable Collector of Rents c. 16 29 Committed for Suing out a Bill of Middlesex against a Countess 295 An Attorney or Clerk of Court shall not have Priviledge if Sued joyntly with others 299 Averment See Pleading Assignment Obligation Where necessary and where not 41 43 44 117 149 177 178 B. Bail THe Action shall not be said to be depending until the Bail is Filed and not from the first day of the Term 135 Condition of the Bail Bond ought to agree with the Writ or else be void 233 234 Whether the Principal and Bail may be both taken in Execution 315 Bankrupt A Tradesman given over Trading may be a Bankrupt in respect of Debts contracted before 5 What makes a Man a Trader so as to make him a Bankrupt 29 166 A Man has Judgment in Debt and then becomes Bankrupt who shall have Execution 193 Victuallers for the Fleet not Traders within the Statute of Bankrupts tho' they Victual Merchantmen with the Surplus 170 The Commissioners Authority as to Commitments 323 Where a Debt paid by a Bankrupt to his Creditors shall be refunded 370 371 Baron and Feme See Statutes In Trover that they ad usum proprium converterunt c. Not good 12 24 33 Indebitatus Assump lies against the Husband for Apparel sold to the Wife 42 How to be Bailed when Arrested 49 Baron and Feme taken in Execution the Husband Escapes the Escape of the Husband is the Escape of the Wife and she shall be discharged 51 Battery brought against both and found only against the Feme Good 93 In a Suit the Baron makes an Attorney for both except the Feme be under Age 185. For then she is to be admitted by Guardian ibid. Where the Husband cannot release without the Wife 209 Battery brought by B. and F. for beating them both how far good 328 Bishop See Pleadings Of Common Right the Dean and Chapter are Guardians of the Spiritualties during the Vacancy of a Bishoprick but the
a Scotishman Antenate being Naturalized by Act of Parliament in Ireland can Inherit Lands in England 2 Ne exeat Regnum Granted in Chancery to stop one from going beyond Sea to avoid a Sentence in the Ecclesiastical Court 345 Nonsuit The Plaintiff Nonsuited in Ejectment after Evidence where two Defendants and one appears to confess Lease Entry c. and the other not the Plaintiff shall pay Costs but quaere how to be divided 195 Notice See Chancery Conveyance Mortgage If a Man pleads a Valuable Consideration in Chancery to save his Estate from a Judgment he must also set forth That he had no Notice of the Judgment 361 O Obligation A Penalty may be recovered in an Action of Debt upon a Bill Obligatory tho' it be not drawn properly as a Penal Bill 106 Occupant Occupancy favoured in Chancery 364 Office Where the Archdeacon forfeits his Right to grant the Office of his Register by the Stat. 5 E. 6 c. 16. against the Sale of Offices whether the King or Bishop shall take advantage of the Forfeiture 188 213 267 A Dissenter that hath not received the Sacrament of 12 Months before may plead the Stat. 13 Car. 2. Stat. 2. cap. 1. to excuse him from serving Offices in Corporations 247 248 Original See Writs What Original Filing within time shall be sufficient to prevent the pleading the Statute of Limitations 193 259 Whether in the Common Pleas an Original in a Clausum fregit be sufficient to warrant a Declaration in an Assumpsit 259 Outlawry A Man in Prison ought not to be Outlawed by him who Imprisoned him 46 Action on the Case will not lye for the Party who hath an Outlawry agaist a Sheriff who neglects to extend the Goods of the Outlaw upon the delivery of a Writ of Capias Vtlagatum for that it is the King's loss 90 Whether Outlawry may be pleaded in Bar to an Assumpsit upon a Quantum meruit 282 Oxford See By-Law The Priviledge of the University not allow'd to a Townsman so as to excuse him from Office who keeps a Shop and follows a Trade tho' he be Matriculated and Servant to a Doctor 106 Priviledge not allow'd to a Member of this University in a Suit in Chancery 362 P Pardon SUits by Successor against Executor for Dilapidations not pardon'd by the General Pardon otherwise of Suits ex Officio against the Dilapidator 216 Parliament No Action lies against the Chief Officer of a Corporation for a Double-Return of a Burgess the Common Pleas having no Jurisdiction of this Matter 37 Peace The King cannot discharge a Recognizance taken for Surety of the Peace but after it is broken he may 131 A Gentleman said to be a Member of the House of Commons bound to the Peace for Challenging one of the King's Witnesses to Fight 317 Plantation Tho' a Plantation be an Inheritance yet being in a Foreign Country 't is look'd upon as a Chattel to pay Debts and a Testamentary thing 358 Pleading See Baron and Feme Covenant Intent Scire facias Copyhold What shal be held a Double Plea and what not 68 198 Trespass for carrying away diversa onera equina of Gravel naught for incertainty 73 Want of the Word alio or aliis in a Declaration where several mention is made of things of the same nature yet good enough 78 For the Defendant to traverse Matter not alledged good Cause for the Plaintiff to demur 79 If a Judgment and Execution be pleaded in an Inferiour Court not of Record the Proceedings ought to be set forth at large and not sufficient to say taliter processum fuit also it ought to be set forth That the Cause of Action did arise within the Jurisdiction 100 In a Prescription for Priviledge tempore quo non exstat memoria good enough tho' the Course be to say à tempore cujus contrarium memoria hominum non existit 130 Tho' by Course of the Court if a Defendant lye in Prison two whole Terms without any Declaration put in he may get a Rule to be discharged yet if a Declaration be afterwards delivered and Judgment thereupon 't is a good Judgment and the Bail formerly given will be liable 143 Where Freehold Lands were pleaded to pass by Surrender according to Custom the Special Custom must be set forth 144 Where the Writ contains more than is Declared for this is a Variance not aided by the Verdict and Judgment arrested 153 Debt upon Bond Condition'd That the Husband shall permit the Wife to dispose of her Personal Estate c. it is not sufficient for the Defendant to plead quod Conditio nunquam infracta fuit and put the Plaintiff to assign a Breach but the Defendant must shew forth That he hath perform'd the Condition 156 Where an Action of Trespass brought for the same Matter in another Court may be pleaded in Bar to an Action of Trover 169 170 In Trespass quod duas acras terrae fod subvert asportavit Judgment stayed because the Declaration doth not express the quantity of Earth carried away for the two Acres relate only to the Ground digged 174 The Plaintiff Declares for Assault Battery Wounding and Imprisonment the Defendant in his Plea takes no notice of the Battery naught 193 Plea in Abatement That the Plaintiff was dead before the Action brought where good 196 Where preadict is necessary and where not 197 Where a Traverse that might have been omitted is Cause of Demurrer 212 Doubleness in a Declaration cured by Answering 222 Day of the Week where material ought to be set forth in Pleading for the Court are not obliged to consult the Almanack 248 Tempore dimissionum where it should be temporibus dimissionum naught 253 254 271 Super Acclivitatem de Hampsted which is a description of a Scituation whether it be a Vill or Lieu conus sufficient for a Jury 254 272 Diversas petias Maheremij cepit c. naught for the Incertainty 262 Where the Defendant pleads an Insufficient Plea the Plaintiff shall make no Advantage of that upon Demurrer if his own Declaration be naught but Judgment will be against the Plaintiff 262. As where an Executor sues for Rent and does not sufficiently Intitle his Testator to the Estate demised ibid. Plenam potestatem Jus Titulum ad Praemissa dimittend ' and does not set forth what Estate he had whether in Fee or other Estate not good upon a Demurrer 271 Houses are set forth in Pleading to lye in Parochia praedicta and two Parishes are named before naught for the Incertainty 278 Traverse impertinent where the Matter is confest and avoided 283 No General Rule That a Matter cannot be pleaded specially which may be given in Evidence upon a General Issue and in what Cases it may 295 Vid. infra Statut. 1 W. M. cap. 4. Presumption Presumptions of Law stand as strong till the contrary appears as an express Declaration of the Party 208 Priviledge Whether the Warden of the Fleet shall have a Writ
a Jury But the Court inclined to grant the Writ for it did not appear that it was parcel of his Tenure but rather imposed upon him by the Custom of the Mannor and if Attorneys shall be discharged of the Service of the Common-wealth à fortiori of any private Service Vid. postea The King versus Webb IN an Action brought against him for imbesiling of the Kings Goods which was laid in the Declaration to be in London it was moved for the King that the County might be changed And the Court held the King might choose his County and might wave that which he had seemed to have elected before as he may wave his Demurrer and joyn Issue contra Perries Case IN an Information of Forgery against him being an Attorney of the Common Pleas it was alledged That he had framed a certain Writing in the Form of a Release at Sherborn and that he published and gave it in Evidence at Dorchester and the Venue came out of Dorchester whereas it was said it ought to have come out of both places To which it was answered That the publishing and not the framing was the Crime But notwithstanding it was held to be a Mis-trial and being in an Information it was not aided by any Statute Postea Anonymus IN Trover and Conversion amongst other things the Plaintiff declared de sex bovibus instead of bobus Vpon Not guilty pleaded and found for the Plaintiff and entire Damages assessed It was moved in Arrest of Judgment That the Jury ought to have given no Damages for bovibus being a word insensible and entire Damages being given it was naught for all To which it was answered That if the word be insensible notwithstanding the Anglice the Jury shall not be intended to have regarded it in the giving of Damages and if it hath a signification then it is well enough And it was said bovibus was an old Latin word and is found in Plautus and 't is bobus only by contraction It was also said That the Plaintiff brought this Action as Executor and the Trover was laid in the Testators time which was not sufficient tho' the Conversion was alledged in his own But the Court held neither of these Exceptions sufficient to Arrest Judgment Rumsey versus Rawson IN Replevin The Defendant Avowed for Damage Feasant The Plaintiff replies That the Parson of such a Parish and all his Predecessors have had time out of mind Common in the place where c. belonging to his Glebe and that the Beasts of the Plaintiff were Levant and Couchant upon the Glebe and he put them into the Common by the Licence of the Parson The Defendant Traverses that they were Levant and Couchant and found for the Plaintiff And it was moved in Arrest of Judgment That the Plaintiff had not alledged matter sufficient to justifie his Beasts going in the Common for no other Beasts ought to be put in the Common but those of the Tenant of the Land to which it is appendant or those which he takes to Compester his Land Fitz. N. Br. 180. b. and that tho' the Common be claimed for a certain number And the Opinion of the Court was That the Defendant might have demurred in this case But after a Verdict the Court shall intend they were Beasts which the Parson procured to Compester his Land and the right of the case is tryed so aided by the Statute of Oxford But they gave further time to shew cause Postea Anonymus AN Action was brought for these words Thou hast received Stoln Goods and knew they were Stoln Alice S. Stole them and thou wert partner with her For the first words the Court held them not Actionable for they might admit for a justifiable construction as if the Goods were waived But the last were holden sufficient for Partner with her must intend Partner in the Felony Skinner versus Gunter al. THe case was moved again by Pomberton and alledged in maintenance of the Action that it was but in the nature of an Action upon the Case for at the Common Law no Writ of conspiracy lay but for indicting one of a capital Crime and that after an acquittal by Verdict But since the Statute of 33 Edw. 1. de Conspiratoribus Actions have been brought for conspiring to Indict one of Trespass or to Sue one maliciously without cause of Action as this case is and so is Br. tit Consp pl. 2. and by F.N.B. 116. Such an Action in the nature of Conspiracy lies against one And the Title of the Action in this Case is In placito transgr super casum and for these Reasons all the Court were of Opinion for the Plaintiff Vid. Ante. Braithwaites Case BRaithwaite brought a Mandamus to the Mayor Bailiffs and Burgesses of the Town of Northampton to be restored to his place of Alderman there They make a Return and in their Return set forth the Letters Patents of 16 Car. by which they were Incorporated and power is given them of holding a Common Council consisting of a Mayor 2 Bailiffs and 48 Burgesses and that the Mayor Bailiffs and such Burgesses as had been Mayors commonly called Aldermen should have power upon just Cause to amove any Common Council Man from his place there and then they set forth how Braithwaite was a Member of the Common Council and had committed divers Offences which they expressed in particular Whereupon the 18 of Dec. 17 Car. the Common Council assembled together summoniri procuraverunt the said Braithwaite and he not coming to answer was the same day amoved ab officio suo loco suo in Communi Concilio per Majorem Burgenses authoritate secundum Chartam praedictam It was also set forth That they had a command from the Kin and Council to amove him Vpon this Return there were four Exceptions taken First That it did not appear that he was summoned for it ought to have been qui quidem Braithwaite postea summonitus fuir and not summoniri procuraverunt Sed non allocatur for it was held clearly to be all one Otherwise if it had been quod procuraverunt J.S. eum summonire A Second Exception was That their proceedings were too quick for they amoved him the same day wherein he was summoned Sed non allocatur for it appearing he lived in the same Town and refused to come to make his defence they might immediately amove him A Third Exception was That they had exceeded their power which was only to amove him from his place in the Common Council and they had amoved him from his Office Sed non allocatur for 't is that wherein his Office consists and indeed it was so averred in the Return But the main Exception was For that they had not as was alledged pursued their Authority for the Mayor and such Burgesses who had been Mayors have power given them to amove And here the Amotion is said to be per Majorem Burgenses so that it might be by
went out upon such particular direction and recommendation 'T is some mitigation that they had such advice of Counsel otherwise I should not stick to fine them 100 l apiece We are bound to take care of the support of the Government I agree the Fines Keeling Chief Justice It is provided by 23 H. 8. cap. 5. that the Laws Acts c. to be made by the Commissioners of Sewers should stand good and effectual c. no longer than the Commission endured except they were Engrossed in Parchment and certified under their Seals into the Kings Court of Chancery and then the Kings Royal Assent to be had to the same c. But that was altered by this of 13 Eliz. whereby it is Enacted That their Laws c. should stand and continue in force without any such Certificate to be made thereof into the Chancery and then a little after in this Statute follows the Clause which hath been read and that refers wholly to Certificates or Returns to be made into the Chancery for the purpose aforementioned 'T is plain the Clause refers not to this Court for it speaks of returning their Comissions now their Commissions were never returnable into this Court this Court cannot be ousted of its Jurisdiction without special words here is the last Appeal the King himself sits here and that in person if the pleases and its Predecessors have so done and the King ought to have an account of what is done below in inferiour Jurisdictions 'T is for the avoiding of oppressions and other mischiefs To deny and oppose this and to set up uncontrolable Jurisdictions below tends manifestly to a Commonwealth and we ought and we shall take care that there be no such thing in ours days I know there is a great clamour so soon as an inferiour Jurisdiction is touched and t is thought we deal hardly with them But unless we will suffer this Court to be dissolved and the Prerogative of the King to be encroached upon we must oppose our selves to these Proceedings I have a great respect for these persons the Commissioners but 't is but usque ad aras When the Jurisdiction of the Crown the Justice of the Kingdom and the Duty of my place is concerned I ought not to spare my best Friends Some Presidents have been cited in this Case and many more might there are two memorable Records cited 1 Cro. concerning persons which contemned the Kings Writ and their Penalties I agree the Fines and hereby we do not go so high as our Predessours have gone Hundreds of years ago Nota This Proceeding and Sentence of the Court was upon Confession of the Commissioners the Court forthwith making an Entry and Record of their Confession In an Assize only where the Writ is Returnable into this Court it is apud Westmonaster ' but in all other cases where Writs are Returnable out of Chancery into this Court they are Returnable Ubicunque c. The King versus Jane D SHe was Indicted for Stealing of several things and pleading Not Guilty and a Jury sworn to try her the Witnesses not appearing were suspected to be tampered with by the Prisoner and the Jury were discharged and the Trial put off Vid. 1 Inst 227. b. Wise's Case AN Order of the Justices of the Peace for the maintenance of a Poor Woman was Confirmed tho' it appeared she was able of Body to work But the Justices of the Peace are Iudges of that Cousin's Case ERror to Reverse a Fine for Infancy Now 't was moved that the party being in Court she might be inspected and the Inspection Recorded and there was produced and read a Copy of the Register Book sworn to be a true one and several Affidavits of her Age. Curia Let the Inspection be now Recorded the Issue of her Infancy may be tryed at any time hereafter tho' she comes of Age. Nota A Prisoner in the Kings-Bench that lyes in the Common Side pays no Fees for his Lodging Anonymus IT was said by Twisden That if two submit to an Award this contains not a Reciprocal Promise to perform but there must be an Express Promise to ground an Action upon Nota A Fine which was set two or three Terms since was this Term set aside because of some surreptitious Practice and Misinformation to the Judge Auberie versus James ASsault Battery and Wounding The Defendant Iustified for that he being Master of a Ship commanded the Plaintiff to do some Service in the Ship which he refusing to do he moderate castigavit the Plaintiff prout ei bene licuit The Plaintiff maintains his Declaration absque hoc quod moderate castigavit and Issue was taken thereupon Negativum infinitum After Verdict for the Plaintiff it was moved in Arrest of Judgment that the Issue was not well joyned for non moderate castigavit doth not necessarily imply that he did Beat him at all and so no direct Traverse to the Defendants Iustification which immoderate castigavit would have been But De injuria sua propria absque aliqua tali causa would have been the most formal Replication But the Justices held that it would serve as it was after a Verdict tho' the Statute at Oxford 16 Car. 2. the last and most aiding Act of Jeofails be * Which was a mistake expired and that de injuria sua propria not adding absque aliqua tali causa hath been held good after a Verdict Green versus Cubit ERror to Reverse a Judgment given in the Court at Norwich in Debt upon a Bond where the Plaintiff declared that the Defendant per scriptum suum Obligatorium at a certain place there became bound c. The Defendant pleaded that he was in Prison scriptum praedictum was obtained by Duress which was found against the Defendant and Judgment given accordingly The Errors assigned were first Because he declares of a Writing Obligatory and both not say sigillo Defendentis sigillat ' 3 Cro. 571. Declaration in Covenant was held Insufficient for the same cause Secondly There is no place where the Defendant alledgeth himself to be in Prison and being in an Inferiour Court it shall not have any aid of Intendment But the Court Over-ruled the first because the Plea of the Defendant confesses the Deed and the second because the Imprisonment must of necessity refer to the place where the Plaintiff declares the Bond to be made For the Defendant pleaded that he was then in Prison wherefore they affirmed the Judgment 3 Cro. 55. 2 Cro. 420. 3 Cro. 737. 19 H. 6. 15. 19. Baldway and Ouston DEbt upon a Bond the Condition was That the Defendant should pay such Costs as should be stated by two Arbitrators by them chosen He pleaded that none were Stated The Plaintiff Replied That the Defendant did not bring in his Bill To which it was Demurred For tho' if the Defendant were the cause that no Award was made it was as much a forfeiture of his Bond as not to perform
constant Practice Secondly There was no good Trial for there is an Award of a Venire facias but no Writ certified But this was also Over-ruled for it is the Course of the Assizes not to make out any Writ Thirdly Issue is joyned by the Clerk of Assize which the Court said ought to be for he is Attorney General there Parker versus Welby THe Plaintiff brought an Action upon the Case against the Defendant and Declared that he Sued out a Latitat against a third Person directed to the Defendant being Sheriff who thereupon Arrested him and after let him go at large And then he Returned a Cepi Corpus paratum habuit ubi revera he had not his Body at the Day To this Declaration the Defendant Demurred supposing that no Action would lye for this False Return for the Statute of 23 H. 6. obliges the Sheriff to let to Bail and if he hath not the Body at the Day he is to be amerced But the Court were of Opinion for the Plaintiff For it shall be intended that he let him go without Bail and if he did not he ought to have pleaded the Statute of 23 H. 6. which is a Private Law And at the Common Law a man could not be let at large in such case without a Homine Replegiando Or else he might have pleaded Not Guilty and given the Statute in Evidence And so it is Adjudged in Layton and Gardiner's Case 3 Cro. 460. So Moor placito 996. 2 Cro. 352. and 3 Cro. 624. Where the Defendant pleaded That he let to Bail according to the Statute and the Plaintiff was barred Twisden cited a Case in this Court Paschae 21 Car. 1. Rot. 616. between Franklyn and Andrews where the Plaintiff Declared as in this Case And the Defendant pleaded the Statute and that he let him at large upon Sureties and traversed absque hoc that he returned his Writ Aliter aut alio modo To which the Plaintiff Demurred It was Resolved First That the Sheriff could Return nothing but Cepi Corpus And he was then amerced because he offered to make a Special Return Secondly That where the Sheriff let the parties out to the Bail and he made such Return that it was no False Return and therefore he should not have traversed Absque hoc that he Returned Aliter vel alio modo As in Maintenance where the Defendant Iustifies for that the party could not speak English and therefore he went with him to instruct his Counsel He shall traverse Absque hoc that he maintained Aliter because that he maintained Would not do tho' it be justifiable So in that case the Court ordered it to be Entred upon the Roll that Judgment was given for the Plaintiff quia Traversia fuit mala So here they Ordered it to be Entred because the Defendant did not plead the Statute of 23 H. 6. Hocking versus Matthews AN Action upon the Case was brought for Maliciously Impleading and causing him to be Excommunicated in the Ecclesiastical Court whereby he was taken upon an Excom ' Cap ' and Imprisoned until he got himself absolved The Defendant pleaded Not Guilty and found against him And it was afterwards moved in Arrest of Judgment that the Declaration was not good for no Action will lye for suing a man in the Spiritual Court tho' without cause no more than in Suing in the Temporal Courts For Fitz. N. B. is That a man shall not be punished for bringing the Kings Writs So Hob. Waterer and Freeman's Case And it hath been lately held that no Action will lye for an Indictment of Trespass tho' falso but an Action of the Case will lye for suing in Court Christian for a Temporal Cause But the Court in this Cause gave Judgment for the Plaintiff For tho' in an Action between party and party in the Ecclesiastical Court where if the matter goes for the Defendant he shall have his Costs no Action will lye if the Court hath Iurisdiction Yet where there is a Citation ex Officio and that is prosecuted malicously without ground the Party shall have his Action for in such Suit he can have no Costs And so is Carlion and Mills's Case Adjudged 1 Cro. 291. And this shall be so intended after the Verdict or otherwise the Defendant should have shewed it to be otherwise and Iustified And Rainsford said without Cause shall be understood without any Libel or Legal Proceedings against him Anonymus IN Debt upon an Obligation to perform an Award which was to pay the Rent mentioned in such an Indenture He that pleads performance of this Award needs not set forth the Indenture but refer generally to it But if it be to be paid in such manner and at such times as is expressed in the Indenture then it must be set forth at large The like of an Award of payment of Money given by a Will Wilson versus Armorer THe Case was Argued again this Term by Coleman for the Plaintiff who Argued that the Exception takes the two Closes wholly out of the Grant and that no modification can be annexed to it 3 Cro. 657. and Moor Pl. 747. A Lease was made for certain Lands excepting a Close and Covenants were for quiet Enjoyment of the Premisses The Lessee disturbed the Plaintiffs possession in the Close excepted yet he could not bring a Writ of Co-venant for by the Exception it is as much as if it had been never mentioned and in this Case the Livery being secundum formam Chartae could not work upon these Closes The Case of Hodge and Crosse cited in Hob. 171. was this A man gave Lands to another Habendum to him and his Heirs after the death of the Feoffor and Livery secundum formam Chartae Resolved a void Feoffment and relyed upon the Case in 1 Anderson 129. as full in the Point A Lease of an House excepting a Chamber pro usu suo proprio occupatione It was held that he might assign Weston ê contra This Exception is altogether void for it cannot be for the Life of the Feoffor only Bro. tit Reservation 13. and it shall not except the whole Fee against the Intention of the Parties for then the Ill wording of his Exception should give him above twice as much as otherwise be should have had and it is but one entire Sentence and taking it altogether it must have an effect which the Law doth not admit and is therefore to be wholly rejected As where a man grants his Term after his death the Grant is void Otherwise where he grants his Term habendum after his death for there the last Sentence is rejected Hob. 171. The Case of the Exception of the Chamber is not alike for excepting it for his own use are apt words to give him power to dispose of it at his pleasure Keeling Rainsford and Moreton held the Exception good for the entire Fee Twisden That it was wholly void because one Sentence Plus Postea Sympson versus Quinley
TRin. 20 Car. 2. Rot. 719. A Custom that Lands should descend always to the Heirs Males viz To the Males in the Collateral Line excluding Females in the Lineal was held good Which it was said was allowed anciently in the Marches of Scotland in order to the Defence of the Realm which was there most to be looked to tho' it is said in Davis's Reports That the Custom of Gavelkind which was pretended in Ireland and Wales to divide only between Males was naught But the former Custom was adjudged good in this Court Hill 18 Car. 2. Rot. 718. Foot versus Berkly BErkly had Iudgment in an Ejectment in Communi Banco and Execution of his Damages and Costs Foot brings Error and the Judgment is affirmed Whereupon Berkly prays his Costs for his delay and charges but could not have them For no Costs were in such case at the Common Law and the Statute of 3 H. 7. cap. 10. gives them only where Error is brought in delay of Execution so 19 H. 7. cap. 20. And here tho' he had not Execution of the Term yet he had it of his Costs If one hath Iudgment in a Formedon in Remainder and before Execution the Tenant brings Error the Judgment is affirmed yet he shall pay no Costs because none were recoverable at first 1 Cro. Ante. Weyman versus Smith A Prohibition was prayed to the Mayor and Court of Bristol Suggesting that a Plaint was Entred there for 66 l and that the Cause of Action arose in London and not in Bristol and so out of their Iurisdiction Note An Affidavit was also made thereof and this is upon Westm cap. 35. and so is F.N.B. 45. Vnless the party pleading in Bar or Imparling admits the Iurisdiction of the Court 2 Inst Tarlour and Rous versus Parner AN Account brought by the Plaintiffs as Churchwardens against the Defendant the former Churchwarden for a Bell c. The Defendant pleads That it lacked mending and that by the Assent of the Parishioners it was delivered to a Bell Founder who kept it until he should be paid To which the Plaintiff Demurred For this Plea is no bar of the Account but a good Discharge before Auditors But it was said on the other side That the Matter pleaded shewed that the Defendant was never Accountable therefore it might be in Bar. The contrary whereof is Adjudged in the same Case in terminis 1 Rolls 121. between Methold and Wyn and so was the Opinion of the Court here But then it was alledged that the Declaration was not good for there were two Plaintiffs and yet it is quod reddat ei compotum and it is de bonis Ecclesiae whereas it should have been bonis Parochianorum For the first the Court said that it should be amended for it was the default of the Clerk But the other was doubtful For the Presidents were affirmed to be both ways but they rather inclined that the Declaration was not good for that cause Anonymus AN Indictment of Forcible Entry in unum Messuagium vel domum Mansional ' quaere if not uncertain and other Lands and Tenements tent ' ad voluntat ' Dom ' secundum consuetudinem Manerii and doth not express what Estate For which the Court held it ought to be quashed for the Statutes 8 H. 6. and R. 2. extend only to Freeholds and the Statute in King James's time to Leases for years and Copyholds And here tho' he saith at the Will of the Lord according to the Custom of the Mannor yet 't is not sufficient because he saith not by Copy of Court Roll. And it was Adjudged in 1653 in this Court that none of the Statutes extended to Tenants at Will Martyn versus Delboe IN an Assumpsit the Plaintiff Declared That he was a Merchant and the Defendant being also a Merchant was Indebted to him in 1300 l And a Communication being had between them of this Debt the Defenant promised him in Consideration thereof That he should have Share to the Value of his said Debt in a Ship of the Defendants which was then bound for the Barbadoes and that upon the Return of the Ship he would give him a true Account and pay him his proportion And sets forth That the Ship did go the said Voyage and returned to London and that after the Defendant with some other Owners had made an account of the Merchandize returned in the said Ship which amounted to 9000 l and that the Plaintiffs Share thereof came to 1700 l which he had demanded of the Defendant and he refused to pay it c. To this the Defendant pleads the Statue of Limitations and the Plaintiff Demurred Alledging that this Action was grounded upon Merchants Accounts which were excepted out of the Statute Tho' if an Action be brought for a Debt upon an Account stated between Merchants the Statute is pleadable as was Adjudged in this Court last Hillary Term between Webber and Perit yet here there being no Account ever stated between the Plaintiff and Defendant it is directly within the Statute And of that Opinion were Keeling and Rainsford But Twisden inclined otherwise because the Plaintiff declares upon an Account stated and tho' between Strangers yet he bringing his Action upon it admits it Et Adjornatur Nota Every Parish of Common Right ought to Repair the High-ways and no Agreement with any person whatever can take off this Charge which the Law lays upon them Crispe and Jackson versus The Mayor and Commonalty of Berwick IN Covenant after Verdict for the Plaintiff it was moved in Arrest of Judgment that there was a Mis-Trial the Venire being awarded to an adjoyning County Which the Court after Hearing of Arguments in it Ruled it to be well enough but one of the Plaintiffs died before the Court had delivered their Opinions It is prayed notwithstanding that Judgment might be Entred there be no default in the Plaintiffs but a delay which came by the act of the Court and that it was within the Statute of this King That the death of the Party between Verdict and Judgment should not abate the Action and that it was in the discretion of the Court whether they would take notice of the Death in this case for the Defendant hath no Day in Court to plead there being no Continuances entred after the Return of the Postea 1 Leon. 187. Isley's Case Latches Rep. 92. And the Court were of Opinion that Judgment ought to be Entred and there being no Continuances it may be as if immediately upon the Return of the Postea Ante. Lion versus Carew THe Case was A Lease was made to two for 99 years if three Lives should so long live and this to commence after the end of a Lease for Life Reddend ' a certain yearly Rent and two Work-days in Harvest post principium inde reddend ' inde 3 l nom ' Harriotte post mortem of the Lessees or either of them and reddend ' two Capons at Christmass post
principium inde One of the Lessees died before the Lease for Life determined whereupon the Lessor brings Covenant for the 3 l and sets forth this Matter in the Declaration To which the Defendant Demurred supposing that the 3 l was not to be paid unless the Death had hapned after the Term had commenced And the Court having heard it spoken to divers times by Counsel on both sides by the Opinion of Twisden Rainsford and Moreton Iudgment was given for the Defendant For all the other Reservations but this were expresly post principium termini and Clauses in Companies are to expound one another as it is said in the Earl of Clanrickard's Case in Hobart It is in the nature of a Rent and Reservation which it is not necessary that it should be Annual And in Randall and Scories Case 1 Cro. such a Duty was distrained for and it shall attend the Reversion Rolls 457. And he that hath but an interesse termini is not to pay the Rent reserved for there is no Term nor no Reversion until it commences If A. lets to B. for 10 years and B. redemises to A. for 6 years to commence in futuro in the mean time this works no suspension of either Rent or Condition The Intention of the Parties is to be taken That it should not be paid until then However Reservations are to be taken most strongly against the Reserver As Palmer and Prowses Case cited in Suffeild's Case 10 Co. is The Reversion of a Lease for years was granted for Life reserving certain Rent cum reversio acciderit a Distress was made for the Rent arrear ever since the Grant Resolved that it was good for no more than was incurred since it fell into possession Keeling Chief Justice held strongly to the contrary For he said the words were so express in this Case that they have left no place for Construction which other Clauses or the Intention of the Parties may direct when the Expression is doubtful He took it for a Sum in gross for Distrained for it could not be being reserved upon the Death of the Lessees or either of them which was also the limitation of their Lease And that Interpretations were not to be made against the plain sense of words He relied upon Edriches Case 5 Co. where the Judges said They would not make any Construction against the express Letter of the Statute yet there was much Equity in that Case to incline them to it And he said As well as a Fine is paid upon the taking of such Lease before it begins why may not something be paid also when their Interest determines And in some Countries they call such Payments A fair Leave Miller versus Ward TRespass for breaking of his Close on the 1st of August and putting in his Cattel The Defendant Iustifies for Common which he prescribes for in this manner viz. That two years together he used to have Common there after the Corn reaped and carried away until it was sown again and the Third year to have Common for the whole year and that that Year the Plaintiff declares for the Trespass was one of the years the Field was own quod post grana messa c. he put in his Cattle absque hoc that he put them in aliter vel alio modo The Plaintiff Demurs which it was Ruled he might for the Defendant doth not answer to the Time wherein the Trespass was alledged and the Traverse will not help it for aliter vel alio modo doth not refer to the time Anonymus AN Administrator brings Debt upon an Obligation The Defendant pleads payment to himself Vpon which it was found for the Defendant Coleman prayed that he might have Costs As where an Executor brings an Action sur Trover and Conversion in his own time and found against him it was Ruled in Atkyes Case 1 Cro. that he should pay Costs and hereof his own knowledge he had no cause of Action the Money being paid to himself But the Court Resolved That there ought to be no Costs in this Case for the Action of Trover in his own time might have been brought in his own Name so it was needless to name himself Executor or Administrator but the Action here is meerly in right of the Intestate Harvey versus James AFter Verdict at the Assizes the Clerk delivered the Postea to the Attorney by whose negligent keeping it came to be eaten with Rats But the Court Examining the Clerk of Assize it appeared that he had Entred the Jurors Names Verdict and Tales in his Book and according to that the Court suffered the Verdict to be entred on Record Anonymus IN an Action of Battery against Baron and Feme the Jury find the Feme only Guilty and not the Baron It was moved in Arrest of Judgment That this Verdict was against the Plaintiff for he ought in this Case to have joyned the Baron only for conformity and he declaring of a Battery by both the Baron being acquitted he hath failed of his Action and so is Yelverton 106. in Drury and Dennys Case But here the Court gave Iudgment for the Plaintiff and said that that in Yelvetron was a strange Opinion Anonymus A Certiorari was prayed to remove an Indictment of Manslaughter out of Wales which the Court at first doubted whether they might grant in regard it could not be tryed in an English Country But an Indictment might have béen found thereof in an English County and that might be tryed by 26 H. 8. cap. 6. vid. 1 Cro. Soutley and Prices Case and Chedleys Case But it was made appear to the Court That there was a great cause to suspect Partiality if the Tryal proceeded in Wales for the Party was Bailed already by the Justices of Peace there which Twisden said it was doubtful whether they had power to do for Manslaughter They awarded a Certiorari and took Order that the Prosecutor should be bound by Recognizance to prefer an Indictment in the next English Country Collect versus Padwell IN Debt upon a Bond to perform an Award which was That one should make a Lease to another before the 21 of October which was 2 or 3 Months after the Award and that the other upon the making of the Lease should pay him 50 l The Question was Whether notice in this Case ought to be given when he would make the Lease for otherwise it was said the other must have 50 l always about him or be in danger to break the Award And it was resolved by the Court That no notice was necessary Noell versus Nelson MIch 21. Car. 2. Rot. 745. Error to Reverse a Judgment given in the Common Pleas where the case was thus Nelson brings Debt against Noel as Executor of Sir Martyn Noel who pleads plene administravit The Plaintiff confesseth the Plea and prayeth Iudgment de bonis Testatoris quae in futoro ad manus Defendentis devenirint and upon a Suggestion of Assets afterwards he
distress upon a Copyholder for a reasonable Fine the value of the Land must be set forth and the certainty of the Fine that the Court may judge of it Austin and Gervases Case Hob. 69 77. In Consideration that he should give him Bond for 10 l the Defendant promised c. and pleads that he offered him Bond for the said sum c. and upon Issue Non Assumpsit it was found for the Plaintiff But he could not have Iudgment because the sum wherein he offered to become bound was not exprest so that it might appear to the Court to be sufficient Jones contra This differs from the Case in Hob. for there the sum being certain for which the Bond was to be given the Court may well judge what Penalty will secure it But it is not so in this Case for it doth not appear to what value the damnification may be so there is nothing as in the other Case whereunto to Proportion the Penalty of the Bond. The Court held that it would not have been good upon a Demurrer but being after a Verdict and the Statute of Jeofails made at Oxford which Twisden stiled an omnipotent Act they gave Iudgment for the Plaintiff Lord Birons Case THe Lord Biron was Plaintiff in an Action and upon a Non-Suit five pounds Costs were taxed against him and he brought another Action for the same matter which was said to be meerly for vexation and that he refused to pay the Costs neither could he be compelled being a Peer and in Parliament time Wherefore the Court gave day to shew Cause why this Action should not stay until he had paid the Costs in the former Anonymus IF a Writ of Error be brought in the Exchequer Chamber and that being discontinued another is brought in Parliament this second Writ is a Supersedeas But if a Writ of Error be brought in Parliament and that abates and the Plaintiff brings a second this is no Supersedeas because it is in the same Court Prior versus Shears IN a Writ of Error to Reverse a Judgment given in the Palace Court in an Assumpsit where the Plaintiff declared sur indebitatus pro Naulo and upon Non Assumpsit c. had Judgment It was assigned for Error That it was not ascertained how the Defendant was indebted and that Fraight was usually contracted for by Charter party and if so the general Indebitatus would not lie for a Debt by Specialty Notwithstanding the Judgment was affirmed for for ought appears there was not any Deed in the Case and it shall not be intended and it is no more than the Common Action pro mercimoniis habitis venditis Note It was further objected That this appears to be for Marriners Wages for Sailing to some Foreign parts which must needs be out of the Jurisdiction of the Marshalsea and though the Argréement were made within it yet the thing being to be done elsewhere they could not hold Plea As if a Carrier should agree within the Limits of the Court to carry Goods from thence to York no Action could be brought there upon it which was agréed But the Court said here It doth not appear they were to Sail to any place out of the Jurisdiction and they have laid all the Matter to be infra Jurisdictionem Curiae And therefore the Judgment was Affirmed Hayman versus Trewant TRin. 22 Car. 2. Rot. 710. In an Action upon the Case for that the Defendant bargained with him such a day and year for the Corn growing upon such Ground affirming it to be his own whereas he knew it to be the Corn of J. S. and postea adtunc ibid. fraudulenter vendidit Warrant ' c. The Defendant pleads That the Plaintiff had another such Action depending for the same Cause and demands Iudgment of the Writ The Plaintiff Replies that that Action was commenced for another Cause and not for the same absque hoc that it was for the same Cause To which the Defendant Demurs specially because the Plaintiff having denied what the Defendant affirmed ought not to have added a Traverse but to have concluded to the Country As the Case of Harris and Phillips 3 Cro. 755. was Adjudged Where in an Audita Querela to avoid the Execution of a Recognizance the Plaintiff sets forth that it was defeazanced upon payment of divers Sums of Money at certain days and that he was at the place appointed and tendred the Money and that the Defendant was not there to receive it The Defendant pleaded Protestando that the Plaintiff was not there to pay it and that he was there ready to receive it absque hoc that the Plaintiff was ready to pay it Which being specially Demurred to the Court held the Plea naught and that there being an express Affirmative and Negative there should have been no Traverse for so they may traverse one upon another in infinitum Notwithstanding the Traverse was here held good which was allowed for putting the Matter more singly in Issue And it appears that Phillips's Case was Adjudged upon another matter For that the Plea in Bar was not entred as the Defendant's Plea but was entred thus Pro placito Bush a Stranger dicit Yelv. 38. Then it was moved That as the Plaintiff hath declared here it appears that the Warranty was subsequent to the Bargain For it is said that he bargained for the Corn knowing it to be the Corn of J.S. postea adtunc ibidem vendidit which is repugnant Sed non allocatur for where it is said first That he bargained that shall intended a Communication only and the Consummation of it after when the Warranty was given which is also said to be adtunc ibidem So alledged well enough Foxwith versus Tremaine TRin. 21 Car. 2. Rot. 1512. Five Executors bring an Action sur Indebitat ' Assumps The Defendant pleads in Abatement That two of them are under the Age of 17. and that they appeared by Attorney And to this the Plaintiffs Demur They who Argued for the Defendant made two Questions 1. Whether they ought all to joyn in the Action And it was said they ought not for one under Age cannot prove the Will And in Smyth and Smyth's Case Yelv. 130. it is Resolved they must be all Named so that their Interest may be reserved unto them but are not to be made parties to the Action And for this the Case between Hatton and Mascue which was Adjudged in the Exchequer Chamber was cited Where in a Scire facias it was set forth That A. being the Executor of B. made his Will thus I Devise all my Personal Estate to my two Daughters and my Wife whom I make my Executrix And that they had Declared in the Ecclesiastical Court that this made them all three Executrixes and that the Will was proved and that the Wife brought this Scire facias to have Execution of a Judgment obtained by A. the Testator And the Defendant Demurred because not
brought in all their Names and it was Resolved in the Kings-Bench that the Action was well brought and affirmed upon a Writ of Error in the Exchequer Chamber But if in the Case at Bar they ought to joyn they must appear by Guardian It having depended divers Terms It was now Resolved by Rainsford and Moreton that the Action was well brought and they relyed upon the Case in Yelverton and they said the Case of Hatton and Mascue was no Authority against it for there they were named and where some are of Age no Administration durante minori aetate is to be granted They held also that the appearance ought to be by Attorney because they joyn with others and so in auter droit and so is 3 Cro. 377. the Countess of Rutland's Case and 541. Resolved that an Infant Administrator shall sue by Attorney See 1 Roll. 288 and 2 Cro. 420 421. Cotton and Westcote's Case The difference is taken where an Infant Executor is Defendant and where Plaintiff and Judgment given for him in which last Case only the appearance by Attorney is said to be good Twisden contra An Infant cannot in any wise sue or defend by Attorney First Because he cannot make an Attorney Secondly If it should be allowed he might be amerced pro falso clamore and no way to avoid it but by bringing a Writ of Error Thirdly He might be injured by the Attorney's Plea and could not remedy himself as he may against his Guardian as if in Debt the Defendant should plead a Release and the Attorney confess it And he cited a Case in this Court Mich. 1649. between Colt and Sherwood Where an Administrator brought an Action and it appeared by the Record that he was above 17 yet it was Ruled he ought to sue by Guardian For tho' by the Civil Law he was of Age to undertake the Administration yet the manner of his Suing was to be determined by our Law and that could not be by Attorney until the age of 21. Another Case be cited between Peyton and Dorce adjudged in the Court upon a Writ of Error out of the Petit Bag where Peyton sued as Administrator and the Entry was Quod queritur and did not express whether per Attornat ' Guardianum or how and had Judgment and Error was brought in this Court and these Four Points were Resolved First That a Writ of Error did lye out of the Petit Bag into this Court upon an Error in Fact Secondly That the Entry being General it should be taken that the appearance was in propria persona Thirdly That the Plaintiff being an Infant tho' an Administrator could not sue or appear but by Guardian or Prochein amy Fourthly That the Statute of Jeofails did not aid this Case which expresses only the Defendant's appearing by Attorney As to the other Point He inclined that the Action brought by them all was well enough But he acknowledged that much might be urged against the Case of Hatton and Mascue for the naming of them could signifie nothing not being made parties to the Action But he was not so much swayed by that Authority because he held that the Cause did not come well into the Exchequer Chamber being a Scire facias upon which he said no Writ of Error lay thither tho' upon a Judgment no more than upon a Recognizance and said They did joyn here as it were for Conformity As if a Feme Infant be made Executrix and Marries the Administration durante minori aetate ceases tho' she be under 17 and she and her Husband shall Sue The Chief Justice was absent being Sick and so the Plaintiff had Judgment by the Opinion of Rainsford and Moreton Ward versus Rich. WArd brought an Action against Hatton Rich de uxore abducta and keeping of her from him usque such a day which was sometime after the exhibiting of the Bill and concluded contra formam Staturi After Verdict for the Plaintiff it was moved in Arrest of Judgment and the Declaration was held good notwithstanding the impertinent Conclusion of contra formam Statuti there being no Statute in the Case Secondly The Court Resolved that Judgment should be stayed for the Jury shall be intended to give Damages for the whole time mentioned in the Declaration As in Trespass with a Continuando to a day after the Writ brought the Plaintiff shall not have Judgment after Verdict which gives Damages by Intendment for the whole time declared for And Twisden said These two Cases were Resolved A Tradesman brought an Action in an Inferiour Court for slandering of him in his Trade by which he lost his Custom within the Iurisdiction of that Court alibi and it was held maintainable notwithstanding the alibi The other was an Action brought upon the Sale of several things for divers Sums of Money quae quidem pecuniarum summae attingunt ad 10 l whereas rightly computed they came but to 9 l The Jury gave Damages less than 9 l and it was held good But if the Verdict had been for 10 l it had been naught The King versus Ledgingham AN Information was brought against Ledgingham for that he being a man of an unquiet Spirit communis perturbator oppressor vicinorum tenentium had taken excessive Distresses of divers of his Tenants After Verdict for the King at the Assizes it was said That no Judgment could be given upon this Information which was said to be defective both in matter and form It hath been often Ruled that Communis oppressor or such like General words without particularizing Offences was insufficient in an Indictment or Information unless the word Communis Barrectator which is of known signification in Law and comprehends divers Crimes and Twisden said is as much as Common Knave 9 Ass 2. Communis latro not good Vid. Roll. 79. Moor 451. neither can an Information be exhibited for taking of excessive Distresses for that was not punishable until the Statute of Marlebridge cap. 4. which saith that he that so Distrains shall be amerced whereas upon an Information he must of necessity be fined 2 Inst 107. Again It ought to have been expressed upon what Tenants the Distresses were taken with their Names otherwise it is too incertain One was Indicted for that he serving upon such a Grand Enquest did reveal the Secrets of the King and himself It was Resolved to be ill because not expressed what Secrets Moor 451. and of this Opinion was the Court in omnibus Ante. Pierson versus Ridge IN Replevin the Defendant made Conusans as Bayliff to a Lord of a Mannor who had a Court Leet by Prescription and laid a Custom for such a Township to send one to be sworn Constable there which not being done a Fine was set and this Distress taken for it Vpon which it was Demurred because no Custom was alledged to warrant the Distress For tho' of common Right a Distress may be taken for a Fine in a Court Leet that
any Debt which was due to the Testator tempore mortis suae might be attached and then sets forth according to the common form how this 320 l was attached c. and Avers that there were no other Controversies Differences or Matters between the Plaintiff and Defendant but what concerned the Testator of the Plaintiff and him as his Executor only The Plaintiff replies That the Defendant had not paid the 320 l according to the Award c. upon which the Defendant Demurred And whether this Money were Attachable as a Debt due to the Testator tempore mortis suae was the Question It was argued by Winnington That it was For it appears by the Averment that it was awarded to be paid meerly upon the Testators account and it is but as it were a reducing the Testators Debt to a certainty for an Award being no Record or Specialty will not alter the nature of the Debt and that clearly it should be Assets in the Executors Hands and the Custom of London was to have a liberal Construction Pemberton contra It doth not appear That there was any Debt due to the Testator There might be Covenants or other Matter between them which shall be rather intended than Debt as strongest against the Plaintiff if there were the nature of the Debt is altered for an Award may be pleaded in Bar to an Action brought upon the Original Debt Also this must have béen sued for in the Debet and Detinet and not in the Detinet only so it is not a reducing the Debt to a certainty as where an account is made upon Debts by simple contracts or where an Executor gives time for payment of a Bond due to the Testator this is still Attachable 1 Rolls 551. He denied it to be Assets If it were the Administrator de bonis non might sue for it after the Executors death which clearly he could not do and the Executor was chargeable only in proportion to the Debt extinguished and not according to the Sum Awarded or at least it could not be Assets before recovered if it were Assets it did not follow it should be Attachable for if an Executor Recovers in Trespass for taking away the Testators Goods the Damages shall be Assets yet they are not Attachable So Damages recovered upon Covenant made to the Testator He said it would be very inconvenient that this Money should be attached for the Executor was liable to a Devastavit upon this matter and yet should have no remedy for the Sum Awarded Again It would be Attachable in two respects both as the Executors Debt for so clearly it is and as the Testators Debt and the Bond for performance would be Attachable for the Executors Debt and the Sum Awarded for the Testators He said all Customs ought to be taken strictly and this was clearly out of the words as being no Debt due to the Testator tempore mortis suae And here it is pleaded That it was Commanded by the Court to the Officer to Attach the Defendant by a Debt due to the Testator at the time of his Death so no Authority to Attach this Debt and if it were by Law Attachable the Command ought to have béen Special The Court were all of Opinion That this was not Attachable as the Testators Debt for then the Administrator de bonis non might Sue for it And they held it to be like the Cases where the Executor takes Bond for a Debt due to his Testator or where he sells the Goods the Money for which they are sold cannot be Attached and here the Award is made of this Sum in Consideration of conveying to the Defendant the Goods of the Testator and releasing of his Debts which séems to be all one with the other Cases And so they gave Iudgment for the Plaintiff Termino Paschae Anno 23 Car. II. In Banco Regis Error A Judgment out of an inferiour Court was reversed because being by default the enquiry of Damages was only by two Jurors and Custom alledged to Warrant it And it was resolved by the Court That there cannot be less then twelve though the Writ of Enquiry saith only per Sacramentum proborum legalium hominum and not duodecim as in a Venire Note There were divers Recognizances take before the Lord Chief Justice Keeling who died before his Hand was set to them It was moved by Coleman that they might be Filed But the Court said a Certiorari must go to his Executors to certifie them and doubted whether they were compleat Records If a Warrant of Attorney be given after the continuance day to enter up a Judgment as of the Term preceding this may be well enough if it be dated within the Term but it cannot be so if such a Warrant be given to confess a Judgment generally and dated after the Term. Anonymus A Prohibition was prayed by one who being a Churchwarden was tendred an Oath by the Court Christian to present according to the Bishops Articles which he refusing to take was Excommunicated Now for that some of the Articles were to present Filthy Talkers Revilers and Common Sowers of Sedition amongst Neighbours which were general Terms and might be understood to comprehend things out of their Iurisdiction the Court conceived a Prohibition ought to go as to them But he should have first pleaded there quod non tenetur respondere as to those matters and upon their refusal to have prayed a Prohibition Elpicke versus Action AN Action of Trover was brought de diversis vestimentis And held not to be good because not expressed what kind of Garments But 7 Jac. Emery's Case where Trover was brought for a Library of Books and held to be good without expressing what they were because to set down the particular Books would make the Record too prolix Vid. 3 Cro. 164. and Pl. Com. where a man pleaded that he was chosen Knight of the Shire per majorem numerum and held to be good Barnard versus Michel IN an Action of Debt the Plaintiff declared upon a Deed comprehending divers Covenants for the performance of which the Defendant obliged himself in the penalty of 40 l and sets forth that the Defendant had broke the Covenants The Defendant pleaded non est factum and it was found for the Plaintiff And it was moved in Arrest of Judgment That though the Issue was found for the Plaintiff yet he having assigned no Breach no Cause of Action appeared upon the Record so he could have no Judgment For if the Declaration be insufficient let the Defendant plead what he will yet Iudgment shall not be given against him Indeed if the Action had béen brought upon a Bond Conditioned for the performance of Covenants and non est factum had béen pleaded no Breach needed to have been assigned for then the Declaration is only upon the Bond without mentioning any thing of the Condition But here the Breach of the Covenant is as it were a Condition precedent to
Action for saying Go tell the black Knave Roberts That I will teach him or any Attorney in England to sue out a Writ against me and he had Judgment for it was as much as to call him Knave Attorney Hill 22 23 Car. 2. Rot. 1426. Methin and the Hundred of Thistleworth AN Action was brought upon the Statute of Winton The Defendants pleaded that they made Hue and Cry and that within 40 Days they took one Dudley which was one of them that did the Robbery and had him in custody The Plaintiff Replied That Dudley was not taken upon their fresh pursuit modo forma And upon this Issue the Jury find a Special Verdict to this effect That the Hundred made Hue and Cry and that Sir Joseph Ash finding Dudley in the presence of Sir Philip Howard a Justice of the Peace of Westminster at his House in Westminster the said Sir Joseph being an Inhabitant in the Hundred of Thistleworth charged Dudley with this Robbery before Sir Philip who promised he should appear at the Sessions at the Old Baily And whether this be such a Taking as is put in Issue they referred to the Iudgment of the Court. Jones for the Plaintiff Argued That in this Case there doth not appear to be any Taking at all but only a Discourse between Sir Joseph Ash and Sir Philip Howard As admitting the Issue were Whether a man were Arrested or no and it should appear upon Evidence that one should come to the Sheriff and declare That he had a Writ against such a man then present and upon this the Sheriff should say I will take his word for his Appearance this clearly could not be taken for an Arrest Again The Issue is Whether he were taken upon the fresh pursuit of the Hundred and it doth not appear by the Verdict that there was any Hue and Cry made this way and it might be ceased before this time But it seems rather that Sir Joseph Ash found him by accident But the Opinion of Hales Chief Justice Twisden Rainsford and Moreton was that Judgment ought to be given for the Defendant For the charging of Dudley with the Robbery in the presence of a Justice of the Peace was clearly a Taking within the Statute For being in the presence which the Law construes to be under the Power or Custody of the Magistrate it would have been vain and impertinent to have laid hold of him and it shall be intented that this was upon Fresh pursuit For when the Verdict refers one Special Point to the Iudgment of the Court all other matters shall be intended And the Chief Justice said That if the Hue and Cry was made towards one part of the County and an Inhabitant of the Hundred apprehended one of the Robbers within another yet this was a Taking within the Statute Hornsey Administrator of Jane Lane versus Dimocke THe Plaintiff as Administrator of Jane Lane brought an Assumpsit and declared that he had formerly deposited such a Sum in the Defendants hands for the use of the Intestate Jane Lane in Consideration whereof the Defendant promised to the Plaintiff that he would pay it her or if she died before 18 years of Age that he would pay it to her Executors And shews that she died before 18 and that he had not paid it to the Plaintiff her Administrator licet saepius requisitus Vpon non Assumpsit a Verdict was for the Plaintiff It was moved in Arrest of Judgment that the Plaintiff brought this Action as Administrator which ought to have been in his own right for the Promise was made to him Sed non allocatur For if a man names himself Executor or Administrator and it apears the Cause of Action is in his own right it shall be well enough and he calling himself Executor c. is but Surplusage But here it seemeth Jane Lane might have brought an Assumpsit because she was the party to whom the Money was to be paid So it is good either way It was further Objected That it was not averred that the Defendant did not pay the Money to Jane Lane during her Life Sed non allocatur For 't is aided by the Verdict As the Chief Justice said a Case was Adjudged where an Assumpsit was brought upon a Promise to pay Money to two or either of them and declared that the Money was not paid to the two and not said or either of them yet Resolved to be good after Verdict Matthewes versus Crosse IN Debt for Rent the Plaintiff Declared That by an Indenture made in the Parish of St. Mary Undershaft London he Let an House to the Defendant situate in parvo Turris monte reserving so much Rent c. The Defendant pleads That before the Rent incurred the Plaintiff entred into a certain Room of the said House apud parvum Turris montem praedict ' and so suspended his Rent upon which it was Demurred And it was shewn for Cause That no place was alledged where the Entry was but said to be at Little Tower-Hill which cannot be intended a Vill. And a Case was cited of an Indictment in this Court of a Fact laid to be done at White-Hall and quashed for want of Place And to this the Court inclined but the Matter was ended by Comprimise ' Anonymus A Prohibition was prayed to a Suit for a Pension in the Ecclesiastical Court surmising that the Lands out of which it was demanded were Monastery Lands which came to the King and that he granted the Lands c. under which Grant the Plaintiff claims and that he Covenanted to discharge the said Lands of all Pensions c. and this upon the Statute of 34 H. 8. cap. 19. which appoints the Suit to be for Pensions in such cases in the Court of Augmentations and not elsewhere But the Court would not grant it until the Letters Patents of Discharge were produced being a matter of Record But where the Surmise is of matter of Fact it is sufficient to suggest it And it was said by the Court That Pensions whether by Prescription or otherwise might be sued for in the Ecclesiastical Court but if by Prescription then there was also Remedy at the Common Law F.N.B. 50. 1 Cro. 675. Davis versus Wright al' HIll 22 23 Car. 2. Rot. 701. In an Assumpsit the Plaintiff declared That his Father gave him by his Will 3 l per annum during his Life and that he was about to Sue for it and that the Defendants being Executors to the Father in Consideration that the Plaintiff would forbear to commence a Suit against him for it promised to pay him The Defendants plead That the Testator was indebted in divers Sums and ultra to pay them he had no Assets To this the Plaintiff demurred for that by this Promise the Defendants have made it their proper Debt But it was said on the other side That if there were no Assets there was no cause for the Plaintiff to have commenced
King by general words of all Land c. Conditions c. 3 Co. 2. a. b. much less could it pass from the King if it could pass at all by general words but I rest upon this First That it is a Power or kind of Trust to revoke but no Condition Secondly At least not such a Condition as is given to the King Thirdly If it were it ought to have béen executed by the same means as it should have béen by S. M. In Englefields Case there was no pretence to have more than to execute the Condition it ought here to have béen executed in the Life of S. M. and so it appears to be done in Englefields Case and Harding and Warners Case for I caused the Cases to be searched This is like the Case of the Statutes of 15 R. 2. cap. 5. 1 R. 3. cap. 1. 19 H. 7. cap. 15. these Statutes give the same advantage to Lords c. where persons have Uses in Lands respectively as if they had the very Lands but the Lord's c. cannot thereby claim any greater Interest than the cestuy que Uses had respectively in the Uses Now in this Case The Body of the Act and the Proviso fetch back and save the Trusts for all but S.M. As to the Execution for the Kings Debts it differs for the Process for they ever did and do run de terris de quibus illi aut aliquis ad eorum usum c. 'T is true in Sir Charles Hattons Case it was resolved That the Kings Debr should be executed upon Land wherein he had a power of Revocation Vid. Chirtons Case 11 Co. 92. And so Iudgment was affirmed per toram Curiam Termino Sanctae Trinitatis Anno 22 Car. II. In Banco Regis Anonymus IN Debt upon a Bond. After Verdict for the Plaintiff the Judgment was entred quod recuperet the Sum pro misis custag ' instead of pro debito praed ' But this was ordered to be amended as the default of the Clerk tho' in another Term The Court having power over their own Entries and Judgments Anonymus IN an Account it was held by the Court that if a man delivers Money to his Bayliff or Factor to lay out for him in Commodities he cannot bring an Assumpsit but only his Action of Account For the Chief Justice said that he knew such an Action once brought and the Jury that were to try the Cause informed him That if they should Examine all the Accounts which were between the Plaintiff and Defendant it would take up three or four days time So that it hath been always holden that in such case he should be driven to his proper Remedy which is an Action of Account and it may be the Factor hath laid out more Mony that he received Eaton versus Barker IN an Action upon the Statute of 17 Car. nunc for residing in a place where he had formerly kept a Conventicle and demands the 40 l penalty After Verdict for the Plaintiff it was moved in Arrest of Judgment that there was no Costs or Damages given For it was said that where a Statute gave a certain Penalty if this be not paid upon demand he that sues for it shall recover his Costs and Damages as North and Wingate's Case in the 3 Cro. 559. is But the Court held that they ought not to be given in Actions Popular whether the Forfeiture be certain or not but where a certain Penalty is given to the party grieved there he shall recover his Costs and Damages 10 Co. 116. Vide postea Polexphen versus Polexphen IN a Prohibition the Case was that Henry Polexphen died Intestate Andrew his Brother gets Letters of Administration in the Inferiour Diocess One who pretended to be the Wife of H. surmizing Bona notabilia procured Administration from the Prerogative Court Andrew appeals to the Delegates and dies Henry his Son and Heir comes in and gets the Administration committed in the Prerogative Court Repealed and hath Letters granted to himself Vpon this the Wife prayed a Prohibition supposing that the Delegates could not proceed after the death of Andrew but that their Commission was determined For their Authority is by that to proceed in a Case between such parties one of which is dead To which it was Answered That the Commission is to hear and determine the Cause And both in the Civil and Ecclesiastical Law the Suit shall continue after the death of either party for those which shall be concerned as appears by the Bishop of Carlisle's Case in 2 Cro. 483. and in the 1st Leonard 117 and 178. it is said That if one party dies ante litis conrestationem then it shall abate but if after it is otherwise And there are a number of Presidents of this nature both in the Arches and Admiralty Courts c. And in this very Case Henry Polexphen having obtained Administration de bonis non of his Vncle Andrew in the Country the now Plaintiff got it set aside by the Delegates because granted while an Appeal was depending and that upon full debate before them who would yet now suggest that the Appeal was determined by the death of Andrew The Court were of Opinion that no Prohibition was to be granted and that the Delegates Authority to proceed in that case continued notwithstanding the death of Andrew For the Commission is to proceed in causis Administration c. una cum suis incidentibus vel annexis qualitercunque c. Summariè juxta Juris exigentiam So that the Ecclesiastical Law is appointed to be their Rule by the course of which a Suit doth not abate by the death of the parties And Hale said The Appeal is to the King in Chancery and it is by reason of his Original Jurisdiction and thereupon he grants a Commission to hear it Now if he could hear it in Person none could object but that he might determine the Cause after the death of the parties and by the same Reason they may to whom he hath delegated his Authority But the Attorney General coming in and desiring to be heard in it for the Plaintiff the Court gave further time Eaton versus Barker THe Case was now moved again upon the Statute for coming to a place where he had formerly Preached in a Conventicle And Exception was taken to the Declaration For that it was not averred that the Defendant was in Holy Orders For the words of the Statute are That if any one that hath been Parson Vicar Lecturer c. or within Holy Orders and have taken upon them to Preach c. But to this it was Answered that there is another Clause in the Act That all such persons as shall take upon them to Preach c. which is general and extends to all men whether in Orders or no which have been Preachers And of that Opinion were the Court. It was also Objected That there was no Averment That the Defendant was not there upon Summons Sub
here to forbear to Sue generally but to stay a Suit against the Defendant whom he could not Sue To which it was answered That after a Verdict it shall be intended there was cause of Suit as Hob. 216. Bidwell and Cattons Case And Attorney brought an Assumpsit upon a Promise made to him in Consideration that he would stay the Prosecution of an Attachment of Priviledge and there held that it need not appear that there was cause of Suit for the Promise argues it and it will be presumed And here 't is a strong intendment that the Bond was made in Common Form which binds the Heirs But Iudgment was given against the Plaintiff for the Court said it might be intended that there was cause of Action if the contrary did not appear which it doth in this Case for the Bond cannot be intended otherwise than the Plaintiff himself hath expressed it which shews only that the Ancestor was bound And whereas it was said by the Plaintiff's Counsel that this would attaint the Jury they finding Assumpsit upon a void Promise Hale said there was no colour for that conceit The Plaintiff having proved his Promise and Consideration as 't was laid in the Declaration which is the only thing within their charge upon Non Assumpsit modo forma Bulmer versus Charles Pawlet Lord Saint John IN an Ejectment upon a Tryal at Bar this question arose upon the Evidence Tenant for Life Remainder in Tail to J. S. joyn in a Fine J.S. dies without Issue whether the Conusee should hold the Land for the Life of the Tenant for Life Serjeant Ellis pressed to have it found Specialy tho' it is resolved in Bredons Case that the Estate of the Conusee shall have Continuance but he said it was a strange Estate that should be both a Determinable Fee and an Estate pur auter vie and he cited 3 Cro. 285. Major and Talbots Case where in Covenant the Plaintiff sets forth that a Feme Tenant for Life Remainder in Fee to her Husband made a Lease to the Defendant for years wherein the Defendant covenanted with the Lessors their Heirs and Assigns to repair and they conveyed the Reversion to the Plaintiff and for default of Reparations the Plaintiff brought his Action as Assignee to the Husband And resolved to be well brought because the Wives Estate passed as drowned in the Fee The Court said Bredons Case was full in the point but the Reason there given Hale said made against the Resolution for 't is said that the Remainder in Tail passes first which if it does the Freehold must go by way of Surrender and so down but they shall rather be construed to pass insimul uno flatu Hob. 277 In Englishes Case it was resolved it Tenant for Life Remainder in Tail to an Infant joyn in a Fine if the Infant after Reverse the Fine yet the Conusee shall hold it for the Life of the Conusor 1 Co. in Bredons Case and he resembled it to the Case in 1 Inst a Man seized in the right of his Wife and entituled to be Tenant by the curtesie joyns in a Feoffment with his Wife the Heir of his Wife shall not avoid this during the Husbands Life Nevertheless he told Ellis That he would never deny a Special Verdict at the request of a Learned Man but it appearing that he Plaintiff had a good Title after the Life should fall the Defendant bought it of him and the Jury were discharged Sacheverel versus Frogate PAs 23 Car. 2. Rot. 590. In Covenant the Plaintiff declared That Jacinth Sacheverel seized in Fee demised to the Defendant certain Land for years reserving 120 l Rent And therein was a Covenant that the Defendant should yearly and every year during the said Term pay unto the Lessor his Executors Administrators and Assigns the said Rent and sets forth how that the Lessor devised the Reversion to the Plaintiff an for 120 l Rent since his decease he brought the Action The Defendant demanded Oyer of the Indenture wherein the Reservation of the Rent was yearly during the Term to the Lessor his Executors Administrators and Assigns and after a Covenant prout the Plaintiff declared and to this the Defendant demurred It was twice argued at the Bar and was now set down for the Resolution of the Court which Hale delivered with the Reasons He said they were all of Opinion for the Plaintiff For what interest a Man hath he hath it in a double capacity either as a Chattel and so transmissible to the Executors and Administrators or as an Inheritance and so in capacity of transmitting it to his Heir Then if Tenant in Fee makes a Lease and reserves the Rent to him and his Executors the Rent cannot go to them for there is no Testamentary Estate On the other side if Lessee for a 100 years should make a Lease for 40 years reserving Rent to him and his Heirs that would be void to the Heir Now a Reservation is but a Return of somewhat back in Retribution of what passes and therefore must be carried over to the Party which should have succeeded in the Estate if no Lease had béen made and that has béen always held where the Reservation is general So tho' it doth not properly create a Fee yet 't is a descendible Estate because it comes in lieu of what would have descended therefore Constructions of Reservations have been ever according to the Reason and Equity of the thing If two Joynt-teants make a Lease and reserve the Rent to one of them this is a good to both unless the Lease be by Indenture because of the Estoppel which is not in our Case for the Executors are Strangers to the Deed. 'T is true if A. and B. joyn in a Lease of Land wherein A. hath nothing reserving the Rent to A. by Indenture this is good by Estoppel to A. But in the Earl of Clare's Case it was resolved That where he and his Wife made a Lease reserving a Rent to himself and his Wife and his Heirs that he might bring Debt for the Rent and declare as of a Lease made by himself alone and the Reservation to himself for being in the Case of a Feme Covert there could be no Estoppel altho' she signed and sealed the Lease There was an Indenture of Demise from two Joynt tenants reserving 20 l Rent to them both one only sealed and delivered the Deed and he brought Debt for the Rent and declared of a Demise of the Moiety and a Reservation of 10 l Rent to him And resolved that he might Between Bond and Cartwright which see before and in the Common Pleas Pas 40. Eliz. Tenant in Tail made a Lease reserving a Rent to him and his Heirs It was resolved a good Lease to bind the Entail for the Rent shall go to the Heir in Tail along with the Reversion tho' the Reservation were to the Heirs generally For the Law uses all industry imaginable to conform
against the rest which therefore was not affected by the Error The fourth was overruled for where the Party is present the Iudgment is always quod committitur as appeared by the Presidents Fifthly the Variances from the Statute were not held to be material for in Old writings 't is written Sea of Rome and declaring in Conscience and in my Conscience are the same The sixth Error was also disallowed for the words of the Statute are shall incur the danger and penalty of Praemunire mentioned in 16 R. 2. which doth not necessarily bind up to the Process Vid. 16 R. 2. 5. which makes this very clear but means that such Iudgment and Forfeiture shall be and it appearing that the Parties were present there was no need of any Process But as to the third Exception which was taken to the Venire they said they would be advised until the next Term and they told the Prisoners who were Quakers and had brought a Paper which they said contained their acknowledgment of the Kings Authority and Profession to submit to his Government and that they had no exception to the matter contained in the Oath but to the Circumstance only and that they durst not take an Oath in any Cause which they prayed might be read but it could not be permitted that their best course were to supplicate his Majesty in the mean time for his Gracious Pardon Radly and Delbow versus Eglesfield and Whital IN an Action sur 13 R. 2. cap. 5. 2. H. 4. cap. 11. for suing the Plaintiff in the Admiralty for a Ship called the Malmoise pretending she was taken piratice whereas the Plaintiff bought her infra corpus Com. It seems there was a Sentence of Adjudication of her to be lawful Prize in Scotland in April 1667. as having carried bellicos apparatus i.e. Contraband Goods in the late Dutch War and the Plaintiff bought her here under that Title The Libel was That the Ship belonged to the Defendants and about January 1665 was laden with Masts c. and had Letters of safe conduct from the Duke of York to protect her from Concussion c. and that certain Scottish Privateers did practise to take the said Ship and after the Defendants took her and being requested refused to deliver her and that ratione lucri cessantis damni emergentis they suffred so much loss c. The Defendants pleaded Not guilty to this Action and upon the Tryal would not examin any Witnesses but prayed the Opinion of the Court who said there was good Cause upon the Libel which now they must take to be true in the first instance for the Admiralty to proceed In 43 Eliz. it was resolved 1 Cro. 685. Yelv. 125. Sty 418. If Goods are taken by Pirates on the Sea tho' they are sold afterwards at Land yet the Admiralty had Conusans thereof for that which is incident to the original matter shall not take away the Iurisdiction and that is Law tho' there were another Resolution in Bingleys Case 1 Rolls 531 Hob. 78. 3 Jac. 7 Ed. 4. 14. and 22. Ed. 4. If Goods are taken by an Enemy and retaken by an Englishman the property is changed Otherwise if by Pirates And if in this Case the taking were not Piraticè it ought to have béen alledged on the other side Had the Sentence in Scotland béen pleaded in the Admiralty the Court would have given deference to it as if a Man had a Judgment in Communi Banco and should begin a Suit for the same in Banco Regis This might be made a good Plea to the Suit but not to the Iurisdiction for for ought appeared this might have been the first Prosecution and no Proceedings might have béen in Scotland This came to be tryed at the Nisi prius before Hales who was of the Opinion ut supra then But because it was a cause of weight he ordered it to be tryed at the Bar. And because 't was for his satisfaction and for a full Resolution the Jury was paid between the Parties Note A Proctour sworn a Witness said when this Cause was in the Admiralty there was a provisionate Decree as they call it or primum Decretum which is a Decree of the Possession of the Ship and upon that an Appeal to the Delegates but my Lord Keeper being informed that no Appeal to them lay upon it because it was but an interlocutory Decree upon hearing of Counsel he superseded the Commission When a Ship is so seized upon security given 't is the course of the Admiralty to suffer her to be hired out Watkins versus Edwards PAsch 22 Car. 2. Rot. 408. An Action of Covenant was brought by an Infant per Guardianum suum for that he being bound Apprentice to the Defendant by Indenture c. the Defendant did not keep 5 Eliz. c. 4. maintain educate and teach him to his Trade of a Draper as he ought but turned him away The Defendant pleads That he was a Citizen and Freeman of Bristol and that at the General Sessions of the Peace there there was an Order made that he should be discharged of the Plaintiff for his disorderly living and beating of his Master and Mistress and that this Order was Enrolled by the Clerk of the Peace as it ought to be c. To this the Plaintiff Demurrs The First question was Whether the Statute extends to all Apprentices or only such as are imposed upon their Master by the Justicies and compellable to serve And Hale and Moreton inclined That it did not extend to all Apprentices Twisden and Rainford contrary Secondly Whether they had power to discharge the Master of his Apprentice as they might è Converso Hale conceived they could not But cause the Servant to have due Correction in case the Master complained of him Twisden Rainsford and Moreton Contra. Hankworthy's Case For he may be so incorrigible that the Master cannot keep him without standing in continual fear and in Mich. 21 and Hill 2. 22 Regis nunc upon the removal of an Order of Sessions from York it was resolved That the Master might be eased of his Apprenetice by the Sessions upon just cause And Twisden said Shelton Clerk of the Peace for Middlesex informed him that such Orders are frequently made Thirdly The great question was whether the Defendant ought not to have applied himself to one Justice first as the Statute directs that he he might if he could have settled the business and if not then to go to the Sessions and not to go thither per saltum as upon the Statute of the 18 Eliz. cap. 3. The Sessions cannot make an Order for keeping of a Bastard but upon an Appeal from the two Justices which are first to make an Order Hale This case differs for the 18 Eliz. gives the first Men power to make an Order which shall bind the Parties until it is avoided by Appeal but this Statute of 5 Eliz. gives no Iurisdiction to
same Goods before which Action is still depending And demanded Iudgment of the Writ The Plaintiff Replied That the other two died before the Action was brought and so that Writ abated To which it was Demurred and Iudgment quod respondeat ouster For in all Actions where one Plaintiff dies the Writ abates save in an Action brought by two Executors And Hale said So it should in a Quare Impedit but that it is revivable by Journeys Accounts Wild said That the Pleading That the Two died before the Action brought was double Hale No for he must shew both were dead to enable him to bring this Action alone Twisden How comes this Plea in Abatement after an Imparlance Hale Tho' after an Imparlance the Defendant cannot plead a Misnosmer or the like or Ancient demesne because he admits he ought to answer the Writ yet such a Plea in Abatement as this he may But that comes not in question because the Plaintiff Replied to it and did not Demur Nota Debt for Rent in the Detinet against an Executor shall be brought where the Lease was made because 't is for the Arrears in the Testators time But where 't is in the debet and detinet viz. for Rent incurred in the Executors time it must be where the Land lies And so Agreed by the Court. Nota No Tythes to be paid for Pasture wherein the Plow-Horses are fed And Hale said So it is of Saddle-Horses Anonymus A Foreign Attachment in an Inferiour Court was pleaded in this manner That by Custom time out of mind whoever Leavied a Plaint pro aliquo debito against another upon Surmize That a Stranger was Indebted to the Defendant that Process issued forth to attach c. Against this Pemberton Objected That it was not said pro aliquo debito which did arise infra Jurisdictionem Curiae The Court said that they need not express that the Debt did arise infra Jurisdictionem for perhaps it did not And yet if an Action be brought in such case and the Debt be laid to be Contracted infra Jurisdictionem Curiae if the Defendant will plead to it he may but he shall never be admitted to assign for Error in Fact that the Debt did arise extra Jurisdictionem Curiae But if he had tendred such a Plea in the Inferiour Court upon Oath then if they had refused it it would have been Error Wherefore 't is enough in this case to say If a Plaint were Levied pro aliquo debito infra Jurisdictionem without averring that the Debt did arise within the Jurisdiction Also there cannot be a Custom for a Foreign Attachment before there be some Default in the Defendant Wherefore the Pleading was there held to be Ill. Mosdel the Marshal of the Court against Middleton IN Debt upon a Bond with Condition to be a true Prisoner and to pay him so much by the week for Chamber Rent To this was pleaded the Statute of 23 H. 6. And the Court resolved it was void by that Statute Hale said a Bond for true Imprisonment is good prima facie but the Defendant may aver that it was also for ease and favour And so it was adjudged in Sir John Lenthals time who brought Debt upon a Bond of 2000 l and the party pleaded That it was taken for ease and favour and upon the Tryal it appeared That after that Bond the Defendant was permitted sometimes to go into the Country with a Keeper whereas before he was kept strait Prisoner and upon this matter the Bond was ruled to be void Twisden cited my Lord Hob. That a Gaoler could not take a Bond of his Prisoner for a just Debt Hale That seems hard because he takes it in another capacity But he cannot take a Bond for his Fees because it would give him opportunity to extort Also here part being against the Statute it avoids all but the Condition of a Bond or Covenant may in part be against the Common Law and stand good in the other part Hob. Cox versus Matthews IN Action for a Nusans in stopping of the Lights of his House Exception was taken to the Declaration for that he did not say autiquum Messuagium and yet it was ruled to be good enough for perhaps the House was new Built And the truth of this Case was said to be that the Defendant had Built the House and Let it to the Plaintiff and would now go to stop up the Lights Hale said if a Man hath a Watercourse running thorough his Ground and erects a Mill upon it he may bring his Action for diverting the Stream and not say antiquum molendinum and upon the Evidence it will appear whether the Defendant hath Ground thorough which the Stream runs before the Plaintiffs and that he used to turn the Stream as he saw cause for otherwise he cannot justifie it tho' the Mill be newly erected Watson versus Snead IN Debt for 20 l the Plaintiff declared that the Defendant concessit se teneri per scriptum suum Obligatorium c. the words of the Deed were I do acknowledge to Edward Watson by me twenty pounds upon Demand for doing the work in my Garden Vpon a Demurrer to the Declaration it was adjudged a good Bond. Morse versus Slue THe Case was argued two several Terms at the Bar by Mr. Holt for the Plaintiff and Sir Francis Winnington for the Defendant and Mr. Molloy for the Plaintiff and Mr. Wallop for the Defendant and by the Opinion of the whole Court Iudgment was given this Term for the Plaintiff Hale delivered the Reasons as followeth First By the Admiral Civil Law the Master is not chargeable pro damno fatali as in case of Pirates Storm c. but where there is any negligence in him he is Secondly This Case is not to be measured by the Rules of the Admiral Law because the Ship was infra corpus Comitatus Then the First Reason wherefore the Master is liable is because he takes a Reward and the usage is that half VVages is paid him before he goes out of the Country Secondly If the Master would he might have made a Caution for himself 4 Co. Southcotes Case which he omitting and taking in the Goods generally he shall answer for what happens There was a Case not long since when one brought a Box to a Carrier in which there was a great Sum of Money and the Carrier demanded of the Owner what was in it who answered That it was filled with Silks and such like Goods of mean value upon which the Carrier took it and was robbed And resolved that he was liable But if the Carrier had told the Owner that it was a dangerous time and if there were Money in it he durst not take charge of it and the Owner had answered as before this matter would have excused the Carrier Thirdly He which would take off the Master in this Case from the Action must assign a difference between it and the Case of
Specie when the Estate is determined The Case of Captain C. A Captain of a Company in Colonel Russel's Regiment of Foot Gaurds and a Serjeant of his Company were brought into Court upon the Prosecution of the Sheriffs and other Citizens of London and the Offence alledged and moved against them was this That one Danbert a Butcher and Freeman of London who had Broke having Listed himself a Souldier in this Company and being afterwards Arrested in London for Debt and laid in the Counter and thereof he having given the Captain private Notice the following Design was resolved and executed for his Rescue viz. There being a Priviledge belonging to the Freeman of London that they may by a Customary Precept or Warrant called a Duci facias but by the Common People called a Horse remove themselves from any other Prison where they are in London to Ludgate where it seems they have better Accommodation there being Maintenance allowed to the Prisoners of that place Such an one Danbert got and gave Notice to the Captain at what time he should be carried from the Counter to Ludgate thereby Before this time the Captain commanded this Serjeant to take twenty or thirty Soldiers with him and Way-lay the Prisoner and Rescue him from the Bayliffs and Officers of the Counter as they were bringing him along Accordingly the Serjeant and Soldiers went and lay in or near an Alehouse about Popes-head Alley in Ambuscade till the Prisoner should be brought by And when they had Notice from one who they had placed as Centinel that he was coming they sallied out and drew their Swords for the Serjeant had given them order so to do and if any opposition were made they should kill the first Man And by this means they Rescued him and carried him away Hereupon Complaint being made to the Captain He Answered That his Soldiers had done well and he would Justifie it The Court asked him what he had to say in his Iustification He said That he did not know the Law but he ever thought that a Soldier could not be Arrested without leave of his Officer and that there was an Agreement to that purpose between the late Lord General and the former Lord Chief Justice and that he knew one that had done the like thing and nothing was said to him for it Hale Chief Justice to whom the rest agreed said The more wrong has been done It seems you are grown very Dead-strong but you ought to know that every Officer and Soldier is as liable to be Arrested as a Tradesman or any other person whatsoever and you ought to give full Obedience to the King's Commands signified by his Writs or Process Wild said That that may be served upon you when you are in the Head of your Company Hale said further You are the Kings Servants and intended for his Defence against his Enemies and to preserve the Peace of the Kingdom not to exempt your self from the Authority of the Laws And indeed it were a vain thing to talk of Courts and Laws if Military Men shall thus give the Law and controll Proceedings And for that Agreement you speak of I know nothing of it and if there were any such thing it could be nothing but a Civility Whatever you Military Men think you shall find that you are under the Civil Jurisdiction and you but gnaw a File you will break your Teeth e're you shall prevail against it This is an Outragious Offence and the Punishment has formerly gone high Men have heretofore lost their Heads for Matters of such nature and one of the Crimes of the late London Apprentices was the breaking of Prisons and delivering of Prisoners for which they had Iudgment of High Treason by the Advice of all the Judges The Captain and Serjeant were Committed to Newgate and being brought up at another time Hale asked Why an Information against these Persons was not Exhibited And told the City Counsel that if the Sheriffs did not prosecute this business they the Court would Prosecute them for this was a matter of great Example and ought not to be smothered And further said If that Men will take upon them to Rescue all Soldiers that are Committed it may be within the reach of High Treason because of the Vniversality of the Design against the King's Athority But this being but for one particular it cannot be Treason but 't is a rank Misdemeanour And be Ordered that as many of the rest of the Soldiers should be Prosecuted as their Names could be learned There must be one more to make a Riot tho' however 't is a Misdemeanour Wild said Tho' they cannot find out another Name yet if it be set forth and made out that there were others 't is enough to make a Riot Termino Sancti Hillarij Anno 25 26 Car. II. In Banco Regis NOte When a Prohibition is moved for that a Copy of the Libel is denied to be delivered The Court requires that Oath should be made of the Denial and the Prohibition is but quousque a Copy be delivered Anonymus AN Indebitat ' Assumpsit was brought for Money Lent The Defendant pleads a Tender which being offered at first before Action brought and acknowledged by the Plaintiff he can never recover any Costs The Plaintiff Replies That before the Tender he brought an Assumpsit in the Sheriffs Court upon a Plaint upon the same Cause of Action which was removed hither The Defendant Rejoyns that upon that Plaint he declared for a greater Sum. To which the Plaintiff Demurred For tho' there be a Variance in the Sum yet it might be averred to be the same Cause of Action And so the Court agreed And Hale put this Case A. in Consideration that B. would marry his Daughter promised to pay 100 l and in an Action brought the Plaintiff was barred and in another Action brought The Promise was laid to pay the 100 l at Request and held it could not be averred to be the same Anonymus Note Where Error is assigned in a Matter contrary to the Record in nullo est Erratum is a Demurrer So where Matter of Fact is insufficiently alledged But if a Matter of Law and Matter of Fact together well set forth be assigned which ought not to be there in nullo est Erratum will be a Confession of the Matter of Fact and not serve as a Demurrer for the Doubleness Wherefore in that case the Defendant must Demur Anonymus ONe having Rent payable Half yearly for a Term whereof about six years were to come was content to Release it upon a Bond Conditioned for the payment of the like Sum with the Rent and at the same times And in Debt upon the Bond after failure of Payment upon a Reference to the Secondary to state what was really due He asked the Opinion of the Court whether there should be any deduction for Taxes And the Court said it was Equitable they should be allowed in regard the Money in the
Vpon which it was Demurred Jones Sollicitor for the Defendant said Tho' the Bail may plead payment because the Condition of the Recognizance is in the Disjunctive viz. for rendring the Body or paying the Money yet the Principal cannot Also it ought to have been pleaded to be paid before a Capias ad satisfaciendum taken out for as it is it may be after the Recognizance forfeited As if the Death of the Principal be pleaded it must be alledged to be before the Capias ad satisfaciendum taken out But the Court held it to be well enough For if that matter be material 't is to come on the other side and ex gratia Curiae the Bail has time to save himself before the Return of the second Scire facias Anonymus IN an Assumpsit the Plaintiff Declared that on the 28th of June Discoursing with the Defendant about the Marriage of his Daughter the Defendant promised him That if he would hasten the Marriage and should have a Son within Twelve Months then next following he would give him an Hundred Pound And sets forth That he did Marry soon after and had a Son within 12 Months after the Marriage Vpon non Assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff had not set forth That he had a Son within the time for then next following shall be referred to the Day of the Discourse and not to the Marriage But the Court were of another Opinion and gave Judgment for the Plaintiff Crawfoot versus Dale IN an Action for Words it was thus There being a Discourse of the Plaintiffs Trade the Defendant said He was a cheating Knave and kept a false Debt-Book with which he cheated the Country After Verdict for the Plaintiff it was moved in Arrest of Judgment that to say a Tradesman was a Cheating Knave tho' there were a Colloquium of his Trade was not Actionable for that might be said because he sold too Dear and so cheated in the Price but to say that He sold bad Commodities is Actionable and to say He kept a False Book will not bear an Action for that may be unwittingly But the Court Resolved that the Words laid together were Actionable for Tradesmens Books are of much regard and sometimes given in Evidence Jennings versus Hunking IN an Action for saying He was Perjured the Declaration was laid in Devonshire The Defendant Iustified for that the Plaintiff made a false Affidavit at Launceston in Cornwal and Issue was taken upon that and tryed at the Assizes in Devonshire and moved that this was a Mis trial But it was Answered That the Statute of 17 Car. 2. cap. 8. helps all Mis-trials so as the Trial be in the County where the Action is brought And a Case was cited in this Court between Crosse and Winton in the 21 Car. 2. where an Action was brought for saying He stole Plate from Wadham Colledge in Oxford The Defendant Iustified that he did Steal there Vpon which there was Issue joyned and tryed in London where the Action was brought and it was held good And this Term a Case was moved in the Common Bench in a Writ of Covenant against Wise The Defendant pleaded a Feoffment of Lands in Oxfordshire and he Issue was non feoffavit and afterwards tryed in London where the Action was laid and the Opinion of the Court there was that the late Statute would help it The Court said It was within the words of the Act but as they conceived not within the meaning for they intended only so the Trial was in the County where the Issue did arise But in regard of the Resolutions before they would not stay Judgment Anonymus IN an Action upon the Case the Plaintiff sets forth that the Defendant malitiose crimen Feloniae ei imposuit and not mentioned any Felony in particular and yet held to be well enough Anonymus Trespass with a Continuando which was alledged for some time after the Term wherein the Action was brought and Damages given to 10 l It was moved in Arrest of Judgment that for part of thâ— Trespass it appears by the Plaintiffs own shewing that the Action was brought before the Plaintiff had Cause of Action And it was said That if the Bill were Filed at the End of the Term and the Trespass reached to some time within the Term the Filing should not relate so as to make it Insufficient But here it was carried to the 3d of July which the Court must see is out of the Term because they take Cognizance of the beginning and end of every Term. Anonymus IF an Audita Querela he brought before the Execution of a Judgment quia timet and it goes for the Defendant he shall execute his Principal Judgment But if it he brought after the party is in Execution and he be bailed out then the Judgment being once Executed there can be no after resort to that but the Defendant shall proceed upon the Record of the Audita Querela Fawkener versus Annis THe Priviledge of the Chancery was pleaded by way of Prescription and upon Demurrer it was held naught First Because it was not Concluded hoc paratus est verificare And Secondly No place alledged for they are Matters of Fact and Triable Anonymus IN an Action upon the Case the Plaintiff Declared That the Defendant the Tenants and Occupiers of such a parcel of Land adjoyning to the Plaintiffs have time out of Mind maintained such a Fence and that from the 23th of April to the 25th of May postea the Fence lay open and that una Equa of the Plaintiffs went through the Gap and fell into a Ditch the 28th of May submersa fuit Vpon Not Guilty pleaded and found for the Plaintiff Holt moved in Arrest of Judgment First That the Prescription is laid in Occupiers and not shewn their Estate and that hath been adjudged naught in the 1 Cro. 445. and the 2 Cro. 665. Curia 'T is true there have been Opinions both ways but 't is good thus laid for the Plaintiff is a Stranger and presumed ignorant of the Estate But otherwise it is if the Defendant had prescribed Secondly It was Objected That the Cause of Action is laid after the 25th of May and for ought appears the Fence might be good at that time tho' 't is said to be open till the 25th of May postea Sed non allocatur For 1. 'T is after a Verdict 2. 'T is said expresly that the Beast was lost in defectu fensuratum and so cannot be intended but that it was down at the time Anonymus AN Indictment of Forcible Entry upon the 8 H. 6 being removed hither by Certiorari a Restitution was prayed But to stop that it was said that the Indictment was traversed and a Plea that the party had had three years quiet possession according to the 31st of Eliz. and tho' Dyer 122 is That 't is in the
Discretion tion of the Court to grant Restitution even after a Traverse put in yet now since the Statute of Eliz. where such Plea is tendred the Court cannot grant a Restitution tho' they would in this Case if by Law they might for the party that made this Entry had lost the Land just before by Verdict in an Ejectment and by this means the effect of it should be disappointed Note The Indictment wanted Vi armis for it was pacifice intravit sine Judicio disseisivit à possessione expulit amovit But on the other side it was said First That the Entry being pacifice it was not the course to lay it Vi armis Secondly That 37 H. 8. cap. 8. supplied the defect of Vi armis in an Indictment But as to the latter the Court were of Opinion that the Statute supplied only the lack of the words gladiis baculis cultellis as are mentioned in the Statute Vid. the Stat. Anonymus A Suit for a Pension may be in Ecclesiastical Court tho' by Prescription but if it be denied to be time out of mind then a Prohibition is to go so that the Prescription may be tried at Law as in a Modus decimandi mutatis mutandis It was said by the Court that two might joyn in a Prohibition tho' the Gravamen was several but they must sever in their Declarations upon the Attachment Termino Sancti Hillarij Anno 26 27 Car. II. In Banco Regis Anonymus IN Error the Writ was Teste the 30th of November last and Retornable in Parliament the 13th of April next the Day to which the Parliament was Prorogued The Defendants Counsel desired the Rule of the Court for the taking out of Execution supposing this Writ of Error was no Supersedeas and alledged that the late Rule made in the House of Lords did not extend to their Case for that was That all Causes there depending should not be discontinued by the intervening of a Prorogation but this Case will not be there depending before the Return of the Writ In 3 H. 7. 19. the Court of Kings-Bench would not allow a Writ of Error into the Parliament until some Error was shewn to them in the Record lest it should be brought on purpose to delay Execution In Bulstrode's Reports a Writ of Error Returnable the second Return of the Term was held to be no Supersedeas because it seemed an affected delay that it was not made Returnable the first Return Hale It has been taken that a Prorogation determined a Cause depending in Parliament by a Writ of Error but the Lords have lately Declared otherwise But that comes not to this Case the Writ not being Returned A Writ of Error Returnable ad proximum Parliamentum is not good but otherwise if they are summoned or prorogued to a Day certain If the Day of the Session had been a Year hence it would be hard a Writ of Error should stay Execution and the same Reason where the whole Term intervenes A Writ of Error did bear Teste 10 Nov. and was Returnable 1 Nov. proximè futur ' and the Record was sent into the Exchequer Chambet and a Mittimus Endorsed upon the Roll here And it was Resolved that Execution might be taken out because of the long Return Secondly That tho' there were Mittimus upon the Roll yet the Record remained here until the Return of the Writ to all purposes And the Opinion of the Court was that the Writ of Error was no Supersedeas But they would make no Rule in it because they said it was not Iudicially before them but the party might take out Execution if he thought fit And then if the other Side moved for a Supersedeas they should then Resolve the Point Note Hale said in an Assumpsit for Money upon the Sale of Goods upon non Assumpsit the Defendant might give in Evidence an Eviction of the Goods to mitigate the Damage and in all Assumpsits tho' upon certain Contracts the Jury may give less Damages than the Debt amounts unto as he said was done in a Case where a man promised to give a Straw for every Nail in every Horses Shoe doubling every time and they gave in Damage but the Value of the Horse tho' as the Bargain was made it would have come to above 100 l Lomax versus Armorer A Writ of Error was brought to Reverse a Judgment in Dower given in the Court of Newcastle The Error assigned was because the Proceeding was by Plaint and no Special Custom certified to maintain it As in London and Oxford they have Assizes of Fresh Force by Plaint The Court held it to be Erroneous for this Cause but would not determine whether it might not be good upon a Special Custom 1 Rolls 793. Pl. 11. Anonymus A Mandamus was granted to the Archdeacon of Norwich to Swear a Churchwarden upon surmize of a Custom That the Parishioners are to choose the Churchwardens and that the Archdeacon refused him notwithstanding that he was Elected according to the Custom The Archdeacon Return'd that non sibi constat that there is any such Custom which Form is not allowable for it ought to be positive whereupon an Action might be grounded and that by the Canon the Parson is to choose one c. The Court said that Custom would prevail against the Canon and a Churchwarden is a Lay Officer and his Power enlarged by sundry Acts of Parliament and that it has been Resolved that he may Execute his Office before he is Sworn tho' it is convenient he should be Sworn and if the Plaintiff here were Sworn by a Mandate from this Court they advised him to take heed of disturbing him Noy Rep. 139. Anonymus AN Assumpsit was brought against an Executor for that the Testator being Indebted to the Plaintiff he did ad requisitionem of the Defendant come to Account with him upon which there appeared to be so much due to the Plaintiff which he promised to pay After Verdict the Judgment was de bonis propriis and it was moved that it ought to have been de bonis testatoris For the Accounting with him is little more than telling him what is due and this might make an Executor afraid of Reckoning with any of his Testators Creditors The Court said that the Accounting upon the Defendants Request which was more than the Plaintiff was bound to have done was a Consideration and after a Verdict they must intend an express Promise But Hale said If upon the Evidence it had appeared that there was no Intention to alter the Nature of the Debt as in case an Executor should say stay a while until the Testators Estate was come in and I will pay you he should direct the Jury to find against the Plaintiff that would in such case charge an Executor in his own Right Termino Paschae Anno 27 Car. II. In Banco Regis NOte In an Indebitat ' Assumpsit a man Promises in Consideration that
legitimum Granting of Administrations was originally Temporal an came to the Churchmen by the Indulgence of Princes and therefore must in some sort be governed by the Temporal Laws In Administrations the Whole Blood ought to be preferred before the Half Blood for Next of Kin shall be taken to be meant by the Statute such as our Laws judge to be so Rolls tit Prohibition 303. and so it was held in one Brown's Case before the Delegates in 8 Car. This being a New Case the Court gave no Opinion but Adjourned it to the next Term. Postea Termino Paschae Anno 29 Car. II. In Banco Regis NOte Where Justices of the Peace find a Force and make a Record of it upon their View they are to Commit the Offenders but cannot restore the Possession Anonymus A Prohibition was prayed to a Suit in the Spiritual Court for Money taxed for the Reparation of the Church upon a Surmize that the Tax was imposed upon one part of the Parish omitting the rest And for this was cited Rolls tit Prohibition 291. in the Point But the Court doubted in regard it was not alledged That they had offered that Plea in the Ecclesiastical Court because Reparation of Churches is proper for their Cognizance But the Prohibition was granted and the other might Demur if they thought fit But afterwards in this Term it was Countermanded Anonymus A Prohibition was prayed to the Admiralty where there was a Libel for a Ship taken by Pirates and carried to Tunis and there Sold for that it did not appertain to the Court to try the Property of the Ship being sold upon Land Curia In regard it was taken by Pirates it is originally within the Admiral Jurisdiction and so continues notwithstanding the Sale afterwards upon the Land Otherwise where a Ship is taken by Enemies for that alters the Property And this was the Opinion of the Court in Eglesfield's Case in my Lord Hales's time contrary to my Lord Hobart in the Spanish Ambassador's Case 78. in the 1. Cro. 685. they have Cognizance of the Case of the Pirate because incident to the Principal Matter But afterwards it was observed upon the Libel that there was no mention made That the Ship was taken super altum Mare And tho' there was contained therein very much to imply it yet the Court held that to be absolutely necessary to support their Jurisdiction Note One taken upon an Excom ' Cap ' was Discharged because the Writ de Excom ' Cap ' was not delivered into this Court and Enrolled as is required by the Statute Robinson versus Woolly IN an Ejectment upon a Special Verdict the Case appeared to be thus A Clerk was Admitted and Instituted to a Benefice within the Diocess of Gloucester whilst the Bishoprick was Vacant and a Mandate from the Archbishop for Induction but before it was Executed by the Archdeacon a new Bishop of Gloucester was Consecrated and whether the Induction coming after was sufficient was the Question That it was It was Argued that after the Mandate made it was Executed so far as the Bishop had to intermeddle in the matter For if no Induction does follow the Remedy lies not against the Bishop F.N.B. 47. h. But an Action upon the Case against the Archdeacon for the Induction is said to be a Temporal Act 1 Rolls 125 195. Neither can such Mandate be Revoked by the Bishop or be Inhibited by the King 1 Rolls 294. Again the Archbishop hath a concurrent Jurisdiction with the Bishops throughout his Province and may Admit and Institute until the Inferiour Bishoprick is full And the Statute of 23 H. 8. cap. 9. takes away the Jurisdiction of the Metropolitan only as to Proceedings in that Court In case the Inferiour Ordinary refuses to Admit the Archbishop may do it as appears Hob. 15. Hutton's Case and Mo. 879. It was said on the other side That this was but an Authority derived from the Bishop and therefore ceasing before it was Executed is determined The Bishop may direct his Mandate to another as well as the Archdeacon It was compared to a Letter of Attorney to make Livery which cannot be done after the Death of him that gave it Et Adjornatur Postea Anonymus IN an Information of Forgery the Defendant Challenged one of the Jury for that the Prosecutor had been late Entertained at his House This was admitted to the Favour tho' against the King Vid. for that in the 1 Cro. 663. And then the Counsel for the King challenged another and being pressed to alledge the Cause for 33 Ed. 1. does take away the General Challenge quia non sunt boni pro Rege But all the Court save Wild who seemed to be of another Opinion ordered the Panel to be first gone through and if there were enough the King is not to shew any Cause Vertue versus Bird. IN an Action upon the Case the Plaintiff declared that it was agreed between him and the Defendant That he should carry the Defendants Timber from a certain place to the Defendants House then and there to deliver at such place as the Defendant should appoint and that such a Day and Year he did carry with certain of his Carts to the place aforesaid the said Timber there ready to be delivered but that the Defendant delayed by the space of six Hours the Appointment of the place insomuch that his Horses being so Hot with Carrying of the Timber aforesaid and standing in aperto Acre they died soon after After Not Guilty pleaded and a Verdict for the Plaintiff Ventris moved in Arrest of Judgment that here did not appear any Cause of Action for it was the Plaintiffs Folly to let the Horses stand Neither was the Defendant under the Penalty of an Action bound to receive the Timber or appoint a place but in case of Refusal the other might recover what he Contracted for the Carriage having done all on his part but not to bring an Action for not appointing a Place And by the Opinion of all the Court the Judgment was stayed Vid. 2 Cro. 386. Roll. Rep. 275. Baily and Merritt Anonymus IT was moved for the setting aside of an Order of Sessions for the Setling a Poor person in a Town which had been sent thither by a Warrant of two Justices and it was Confirmed upon an Appeal to the Sessions But the Court would hear nothing of the Merits of the Cause the Order of the Sessions being in such case Final unless there were an Error in the Form Note A man gives a Warrant of Attorney to Confess a Judgment and dies before the Judgment is Confessed This is a Countermand Anonymus JUstices of the Peace at the Sessions Ordered the Father of him which had the Bastard Child to provide for it under the pretence of the reputed Grandfather for the Statute doth enable them to Tax the Grandfather of a Legitimate Child But in this Case the Court held there was no Colour and therefore quashed the
should be informed what their course is and has been and therefore let us hear the Civilians as to this point Post The King and Marlow THe Defendant being a Printer was indicted for his second Offence for Printing of a Seditious Book contrary to the Act of 14 Car. 2. cap. 33. and being found Guilty at the Sessions of the Old Baily the Iudgment was given That he should be for ever disabled to exercise the Art or Mistery of Printing and pay 20 l Fine and to stand in the Pillory And a Writ of Error was brought and Errors were assigned in the Judgment as varying from the words of the Act. For First The Act is That he should be disabled to exercise the Art and Mistery of Printing or Founding of Letters And the Judgment is only to disable him from Printing Secondly The Act is That he shall receive such further punishment by Fine Imprisonment or other Corporal Punishment And the Judgment is both for a Fine and Corporal Punishment when it ought not to be for both Curia The first is as it should be for Printing and Founding of Letters are two distinct Trades and the words are to be taken respectively to such Trade as the Defendant is of Again 't is a Rule that a Man shall not Assign an Error in that which is for his advantage But the second was held an Error for that the Act did not intend a Fine and Corporal Punishment both and therefore the Judgment was reversed Termino Sancti Michaelis Anno 29 Car. II. In Banco Regis Davis versus Price IN Error upon a Judgment in the Common Bench in an Action of Trover where Iudgment was given by default The Error was assigned in the Declaration which was de decem Juvencis Anglice Bullocks and Heifers and not said how many of one and of the other But it was answered that the Latin word being proper and of known signification the Anglice was void according to Osborns Case 10 Co. But the Court reversed the Judgment and cited the Case before in this Court Trover de viginti ovibus matricibus agnis And it was resolved to be naught for not ascertaining the number of each But Twisden said there was a Trover brought de Viginti averiis ivz. Bobus agnis c. and Viginti was applied to each Species and held well It was offered in this case to distinguish it from the case de Ovibus matricibus agnis that there the Latin was of two sorts Sed non allocatur for the words here being Equivocal it was all one Dutton versus Pool AN Assumpsit the Plaintiff declared That his Wives Father being seized of certain Lands now descended to the Defendant and about to cut a Thousand pounds worth of Timber off from the said Lands to raise a Portion for his said Daughter the Defendant promised to the Father in Consideration that he would forbear to fell the Timber that he would pay the said Daughter 1000 l After Verdict upon Non Assumpsit for the Plaintiff it was moved in Arrest of Judgment that the Father ought to have brought this Action and not the Husband and Wife and there was a case shewn to be adjudged in the Common Bench Hillary 23 and 24 Car. 2. Rot. 1538. between Pine and Norris where the Son promised the Father that in Consideration that he would Surrender a Copyhold to him that he would pay a certain Sum to his Sister for which she brought the Action and then held that it would lie for none but the Father for where the Party to whom the Promise is to be performed is not concerned in the meritorious cause of it he cannot bring the Action But if a Promise were to a Man that if his Daughter should Marry his Son he would give her 1000 l there because the Daughter does the Act which is the Consideration she may bring the Action On the contrary the Case was cited 1 Rolls 32. Starkey and Miln where in Consideration of certain Goods sold the Promise was to pay part of the Money to another there that other might bring the Action And it differs from the case where Money is delivered to A. to pay over to B. B. may bring Debt Yelv. 24. If the Father had in the Case at Bar cut the Trees And the Son had said Let me have the Trees and I will pay the Daughter so much that had been the same with the Case before cited 1 Roll. and it doth not seem to differ as it is 1 Cro. 163. Rookwook Case where the Father being about to charge the Land with a Rent of 4 l per Annum to his Younger Sons the Eldest promised that if he would forbear to charge the Land he would pay the 4 l per Annum and the Sons upon this brought the Assumpsit and recovered Sed vide librum that Promise is said expresly to be made to the Sons who were present Vid. 1 Cro. 619.652 Levett and Haws Case where the Promise was made to a Man in Consideration that he had agreed that his Son should Mary his Daughter and to settle such a Joynture upon her that he would give the Son 200 l with her and for this the Father brought the Action and held well brought tho' the Court seemed to incline that the Son might also have brought it And the Court here inclined for the Plaintiffs Sed Adjornatur Post Saunders versus Williams IN an Action upon the Case the Plaintiff Declared that he was seised in Fee of one Acre and possessed for a certain number of years in another Acre and had a Common in Black-acre for Beasts levant and couchant thereupon and that the Defendant put his Beasts in the place and disturbed him The Defendant pleaded a Title of Common to himself also there Vpon which Issue was joyned and found for the Plaintiff and it was now moved in Arrest of Judgment that the Plaintiff had made no Title to the Common by Prescription or otherwise Sed non allocatur The Defendant being a Wrong-doer And the same Matter was Adjudged in the Court between St. John and Moody St. Mich. 27 Car. 2. quod vide ante and in the 2 Cro. 43.122 3 Cro. 500. Robinson versus Woolly THe Case was this Term Argued again And Holt Argued That the Induction tho' executed by the Archdeacon after the New Bishop was Consecrated was sufficient The Bishop is only to Admit and Institute and to send a Mandate to the Archdeacon to Induct who is to do it de communi Jure and therefore if the Bishop hath Admitted and Instituted and made a Mandate for Induction 't is a sufficient Excuse for him in a Quare impedit 11 H. 4. 9. for the Bishop is meerly a Spiritual Officer A Prebendary is to be Inducted by the Dean and Chapter Pl. Com. 529. But 't is Objected That the Archdeacon does not Induct ex Officio â—ut a Mandate from the Bishop is requisite scilicet First The
of the Proceeding after delivery of the Writ but the place only expressed where the Writ was delivered they thereupon overruled this Specious Exception Post Anonymus ONe A. B. was indicted of High Treason in Conspiring the death of the King and was brought to his Tryal at the Bar this Term and one D. being produced a Witness against him the said A. B. excepted against him for that the said D. had been Outlawed of Felony and Burned in the Hand and produced the Record The Witness to clear himself thereof produced the Kings Pardon whereby he was pardoned of the said Crimes Outlawry c. The Prisoner still objected that the Pardon did not restore him to his Credit and that notwithstanding he was no legal and competent Witness and prayed that he might have Counsel assigned him to argue the Point which was granted And the Court having heard his Counsel and conceived some doubt in the Matter they desired Mr. Justice Raymond to consult with the Judges of the Common Pleas to which Court Raymond immediately went and at his return reported to this Court the Opinion of the said Judges to be that he might be Sworn But if a Man convicted of Perjury were afterwards pardoned yet that would not enable him to be a Witness because it seemed to be an injury to the People to make them subject to the Testimony of such an one Vid. Hob. 81. a Pardon takes away poenam reatum so D. was Sworn Colepeppers's Case HE was indicted of High Treason for Raising Rebellion in Carolina one of the Kings Foreign Plantations in America whereupon he was this Term Tried at the Bar and acquitted Note By 35 H. 8. cap. 2. Foreign Treasons may be either tried by Special Commission or in the Kings Bench by a Jury of the County where that Court Sits Vid. Co. 1 Inst 261. b. Anonymus UPon a Tryal at Nisi prius at Guildhal before my Lord Chief Justice North in Trover and Conversion against an Executor de son tort ' The question came to be Whether the Goods having been taken in Execution upon a Judgment obtained against the Defendant by a Creditor of the Deceased should discharge him against the Plaintiff who brought this Action as Administrator And the Opinion of the Chief Justice was that this Execution was a good Discharge against another Creditor that should Sue him to whom he might plead Riens inter ses mains but it was no Discharge against an Administrator for Men must not be encouraged to meddle with a personsal Estate without Right but to prevent this mischief where the Party dies Intestate and there is contest about the Administration a Man may procure of the Ordinary Letters ad Colligendum Termino Sancti Michaelis Anno 32 Car. II. In Banco Regis Anonymus THe Statute of 43 Eliz. cap. 2. that enables Justices of Peace where a Parish is unable to provide for their Poor to Tax the neighbouring Parish the words being any other of any other Parish It was resolved that the Justices might impose the charge upon any of the Inhabitants of the neighbouring Parish and were not obliged to put a general Tax upon the whole Parish Anger versus Brower A Prohibition the Plaintiff declared upon an Attachment that at such a day and place he delivered the Writ to the Defendant and that he had prosecuted the Suit in the Court Christian since and upon Judgment by Nihil dicit and upon a Writ of Enquiry 100 l Damages were found and Judgment given and a Writ of Error brought The Error assigned was that the Plaintiff had laid no Venue where the Suing was since the Writ delivered which was the cause of Damage and not the delivery of the Writ so that place would not serve On the other side it was said that the Presidents were generally this way But to that the Court said that where those Presidents were there was no further Proceeding after Judgment as there seldom was when there was Judgment by Nihil dicit but here they reversed it for this Error Ante. The Case of the City of London concerning the Duty of Water Bailage THe Mayor and Commonalty of London brought an Indebitat ' Assumpsit against A. B. for 5 l for so much due to them for divers Tons of Wine brought from beyond the Seas to the Port of London at Four pence per Ton. Vpon Non Assumpsit pleaded and Trial at Bar divers Freemen of London were offered as Witnesses for the Plaintiff But the Counsel of the other side excepted to them for that they were Parties the Commonalty of London comprehending all the Freemen and likewise Interested On the other Side it was said that their Interest was in no sort to be considered it being so very small and remote a small Legatee hath been sworn to prove a Will In an Indictment against the County for not Repairing of a Bridge one of the County may be a Witness and this Justice Dolben said he had known in the Case of Peterburgh Bridge In a Robbery sur Statute de Winton the Plaintiff shall be Sworn a Witness and that for Necessity But it was Replied that there was no Necessity for they might have other Witnesses besides Freemen tho' perhaps with difficulty In an Action against the Hundred upon the Statute of Winton an Hundred or cannot be a Witness Scroggs Chief Justice Dolben and Raymond were of Opinion that they were Witnesses Jones contra And a Bill of Exceptions was tendred by the Counsel for the Defendant which the Court profered to Seal and to allow three or four days time to Draw it up But afterwards the Plaintiffs Counsel offered other Witnesses and set by their Citizens but the Verdict went for the Defendant Note It was said that the Lord Mayor could not Release the Action but under the Common Seal and that for a Duty or Charge upon a Corporation every particular Member thereof is not liable but Process ought to go in their Publick Capacity Note A Sheriff was ordered to attend the Court for demanding an excessive Fee for the execution of an Hab ' fac ' possess the Court saying there was none due Anonymus A Prohibition was granted to the Consistory Court of the Bishop of London for Citing one for calling of her Whore because such words by the Custom of London are punishable in the Courts of Law there Anonymus IF the Plaintiff dies after the Term began tho' before Judgment Entred yet Judgment may be Entred because every Judgment relates to the first Day of the Term. Anonymus A Motion was made to quash an Inquisition taken before the Coroners super visum corporis of one that killed himself which found that he was Felo de se But the Court were Informed that the party was Non compos mentis and that there had been an undue Practice by the Coroner of both which great Proof was made and upon that it was quashed Note The Court said that if the Body
upon the Warranty as well as the other tho' the Declaration saith knowing them to be naught yet the knowledge need not to be proved in Evidence Debt upon a Bond and a mutuatus may be joyned in one Action yet there must be several Pleas for Nil debet which is proper to the one will not serve in the Action upon the Bond. Sed Adjornatur Termino Sancti Hillarij Anno 34 35 Car. II. In Banco Regis Anonymus A Quo Warranto was brought against divers persons of the City of Worcester why they claimed to be Aldermen c. of the said Corporation The Cause came to be tried at the Bar and a Challenge was made to the Jury in behalf of the Defendants for that the Jury men were not Freeholders The Court said that for Juries within Corporate Towns it hath hath been held that the Statutes that have been made requiring that Jurymen should have so much Freehold do not extend to such places for if so there might be a failer of Justice for want of such Jurymen so qualified but then to maintain the Challenge it was said by the Common Law Jurymen were to be Freeholders But the Court overruled the Challenge but at the importunity of the Counsel they allowed a Bill of Exceptions and so a Verdict passed against the Defendants and afterwards it was moved in Arrest of Judgment upon the Point But the Court would not admit the Matter to be Debated before them tho' divers Presidents of like nature were offered because they said they had declared their Opinions before and the Redress might be upon a Writ of Error Termino Sanctae Trinitatis Anno 35 Car. II. In Banco Regis Anonymus A Motion for a Prohibition to a Suit in the Ecclesiastical Court for a Churchwarden's Rate suggesting that they had pleaded That it was not made with the Consent of the Parishioners and that the Plea was refused The Court said That the Churchwardens if the Parish were Summoned and refused to meet or make a Rate might make one alone for the Repairs of the Church if needful because that if the Repairs were neglected the Churchwardens were to be Cited and not the Parishioners and a Day was given to shew Cause why there should not go to a Prohibition Termino Sancti Michaelis Anno 35 Car. II. In Banco Regis Gamage's Case ERror out of the Court of the Grand Sessions where in an Ejectment the Case was upon Special Verdict upon the Will of one Gamage who devised his Lands in A. to his Wife for Life Item his Lands in B. to his Wife for Life and also his Lands which he purchased of C. to his Wife for Life and after the decease of his Wife he gave the said Lands to one of his Sons and his Heirs And the Question was Whether the Son should have all the Lands devised to the Wife or only those last mentioned And it was Adjudged in the Grand Sessions that all should pass And upon Error brought it was Argued that they were Devises to the Wife in distinct and separate Sentences and therefore his said Lands should be referred only to the last On the other side it was said that the word Said should not be referred to the last Antecedent but to all If a man conveys Land to A. for Life Remainder to B. in Tail Remainder to C. in forma praedict ' the Gift to C. is void 1 Inst 20. b. It is agreed if he said All the said Lands to his Son and his heirs it would have extended to the whole This is the same because Indefinitum equipollet universali Et Adjornatur Herring versus Brown IN an Ejectment upon a Special Verdict the Case was Tenant for Life with several Remainders over with a Power of Revocation Levied a Fine and then by a Deed found to be Sealed ten Days after declared the Vses of the Fine which Deed had the Circumstances required by the Power The Question in the Case was Whether the Fine had extinguished the Power It was Argued that it had not because the Deed and Fine shall be but one Conveyance and the use of a Fine or Recovery may be declared by a subsequent Deed in the 9 Co. Downam's Case And a Case was Cited which was in this Court in my Lord Hale's time between Garrett and Wilson where Tenant for Life with Remainders over had a Power of Revocation and by a Deed under his Hand and Seal Covenanted to levy a Fine and declared it should be to certain Vses and afterwards the Fine was Levied accordingly This was held to be a good execution of the Power and limitation of the new Vses and the Deed and Fine taken as one On the other side it was Argued That the Deed was but an Evidence to what Vses the Fine was intended and the Power was absolutely revoked by the Fine Suppose he in Remainder had Entred for the Forfeiture before this Deed should the Defendant have defeated his Right Et Adjornatur Postea Hodson versus Cooke IN an Action upon the Case for commencing of an Action against him in an Inferiour Court where the Cause of Action did arise out of the Jurisdiction After a Verdict for the Plaintiff upon Not Guilty it was moved in Arrest of Judgment That it was not set forth that the Defendant did know that the Place where the Action arose was out of the Jurisdiction which it would be hard to put the Plaintiff to take notice of On the other side it was said that the party ought to have a Recompence for the Inconvenience he is put to by being put to Bail perhaps in a Case where Bail is not required above and such like Disadvantages which are not in a Suit brought here and the Plaintiff ought at his peril to take notice However to help by the Verdict And of that Opinion were Jeffreys Lord Chief Justice Holloway and Walcot but Withens contra The Court said that it could not be assigned for Error in Fact that the Cause arose out of the Jurisdiction because that is contrary to the Allegation of the Record neither is the Officer punishable that executes Process in such Action but an Action lies against the party And so it was said to be resolved in a Case between Cowper and Cowper Pasch 18 Car. 2. in Scac. when my Lord Chief Baron Hale sate there Anonymus AN Indictment of Perjury for Swearing before a Justice of the Peace that J. S. was present at a Conventicle or Meeting for Religious Worship c. It was moved to quash it because it did not appear to be a Conventicle viz. That there was above the number of Five and so the Justice of the Peace had no power to take an Oath concerning it and then it could be no Perjury To which the Lord Chief Justice said That Conventicles were unlawful by the Common Law and the Justices may punish Unlawful Assemblies And he seemed to be of Opinion that a man might be
Heir in England or to have one My third and last Reason is indeed more general tho' not so conclusive as the two former were upon the particular Reason of the Case tho' not altogether to be neglected viz. The Law of England which is the only ground and must be the only measure of the incapacity of an Alien and of those consequential results that arise from it hath been always very gentle in the construction of the disability and rather contracting than extending it so severely For Instance The Statute de natis ultra Mare 25 E. 3. declares that the Issue born beyond Sea of an English Man upon an English Woman shall be a Denizen yet the construction hath been tho' an English Merchant marries a Foreigner and hath Issue by her beyond the Sea that Issue is a natural born Subject In 16 Cro. Car. in the Dutchy Bacons Case per omnes Justic ' Angl ' And accordingly it hath been more than once Resolved in my Remembrance Pround's Case of Rent The Case of the Postnati commonly called Calvin's Case the Report is grounded upon this gentle Interpretation of the Law tho' there were very witty Reasons urged to the contrary and surely if ever there were reason for a gentle Construction even in the Case in question it concerns us to be guided by such an Interpretation since the Vnion of the two Kingdoms by which many perthance very Considerable and Noble Families of a Scottish Extract may be concerned in the consequence of this Question both in England and Ireland that enjoy their Inheritances in peace I spare to mention particulars So far therefore as the parallel Cases of Attainder warrant this extent of this Ability I shall not dispute but further than that I dare not extend Now as touching the Authorities that favour my Opinion I shall not mention them because they have been fully Repeated and the later Authorities in this very Case are not in my Iudgment to be neglected Touching the Case of Godfrey and Dixon it is true it doth differ from the Case in question and in that the Father was made a Denizen and then had Issue a younger Son who inherited the elder Son an Alien born but Naturalized after the death of his Father yet there is to be observed in that Case either the Naturalization of the elder Son relates to his Birth or relates only to the Time of his Naturalization whether it did relate or not depends upon the words of the Act of Naturalization which I have not seen If it did relate the Cause in effect will be no more but an Alien hath Issue a Natural born Son for so he is as I have Argued by his Naturalization and then is made a Denizen and hath Issue and dies the elder Son purchaseth Lands and dies without Issue the younger Son shall inherit the elder should not have inherited his Father by reason of the Incapacity of the Father But it doth not relate further than the Time of his Naturalization which was after the time of the Death of his Father and consequently he could not divest the Heirship of his younger Brother yet if he purchaseth and dies without Issue his younger Brother shall inherit him tho' there was never Inheritable Blood between the elder Son and his Father so much as in fiction or relation Vpon the whole Case I conclude First That there be two Brochers Natural born in England the Sons of an Alien the one shall inherit the other Secondly That the Naturalization puts them in the same Condition as if born here tho' it does not more Thirdly That John the Son of George stands in the same Condition of inheriting his Vncle the Earl as George should have done had he survived the Earl Fourthly But if the Disability of Robert the Father had disabled the Brothers to have inherited one the other the Naturalization of the Earl or George had not removed that Disability Fifthly But no such Disability of the Father doth disable the Brother George to inherit the Earl it neither doth Consequentially disable John the Son of George to inherit the Earl Consequently as to the Point referred to our Iudgment John the Son of George is Inheritable to the Land of John his Vncle. The End of the First Volume A TABLE OF THE Principal Points Argued and Resolved in the First PART OF THESE REPORTS A. Abatement See Pleadings IN the Ecclesiastical Court a Suit does not abate by the Death of either Party Pag. 134 A Baronet is Sued by the Addition of Knight and Baronet the Action shall abate 154 In all Actions where one Plaintiff of several Dyes the Writ shall abate save in an Action brought by an Executor 235 Acceptance Where Acceptance of Rent from the Assignee shall discharge the Lessee 99 Action See Bail Whether an Action of Debt qui tam upon the Stat. 5 El. c. 4. lies in B. R. 8 Action brought de uxore abducta and concludes contra forman Statuti where there is no Statute in the case yet good 104 Action for a Nusance in stopping of the Lights of his House p. 139 237 248 Action upon the Stat. 13 Car. 2. by one Bookseller against another for Printing his Coppy p. 253 Where the Matter consists of two parts in several Counties the Plaintiff may bring his Action in which he pleases p. 344 Where several Causes may be joyned in one Action and where not 365 366 Action upon the Case See Jurisdiction Way In the Nature of Conspiracy a-against three for Arresting without Cause and only one found Guilty 12 Such an Action lies against one p. 19 Lies for a Justice of Peace against one who Indicts him for Matters in the Execution of his Office p. 23 25 For taking his Wife from him brought against the Womans Father p. 37 Lies not against a Justice of Peace for causing one to be Indicted who was after accquitted 47 Where it lies for Suing one in the Ecclesiastical Court and where not 86 For erecting a Market 7 miles off 98 Upon the Custom of Merchants for a Bill of Exchange accepted 152 For not Grinding at his Mill 167 Where it lies against a Master of a Ship for Goods lost out of the same 138 190 191 Against the Mayor of L. for not Granting a Poll upon a doubtful Election 206 For not repairing a Fence 264 Against a Taylor for Spoiling his Coat in making 268 For Riding over the Plaintiff with an unruly Horse 295 Where Action lies for Defaming the Wife whereby the Husband loses his Customers 348 Action upon the Case For Slander You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds These last Words not Actionable 3 She was with Child by J. S. whereof she miscarried 4 Thou hast received stoln Goods and knew they were stolen J. S. Stole them and thou wert Partner with her 18 Of a Midwife She is an Ignorant Woman and of small Practice and very unfortunate in her Way there
one hath to his Liberty Whoever excites the People to the disobedience of a Law commits the Highest Offence under High Treason I do not mean every Law as if one which should cause a Trespass to be done should be so guity but Laws which are of a publick Nature As to the Retorn I think it is the most insufficient I ever yet saw The certainty of the sum ought to have been expressed in which he and his Sureties should have been bound for otherwise the sum required might be so great that any Person might be constrained to remain in Prison There may may be lawful inciting to the breach of the Law as a Counsel or Attorney advising an Action which is not maintainable and sometimes it may be upon some particular design as in Dier 168. Bronker being made Sheriff one Hyde dissuaded him from taking the Sheriffs Oath because of the difficulty of the Articles B. was condemned in 100 l fine and 5 weeks imprisonment for refusing of the Oath and H. in 20 l and 5 weeks imprisonment for inciting him to it and the reason was because Hyde knew it to be an Offence and that makes it differ from the case of a Counsel or Attorney but the Offence was the less because the incitement was upon a particular reason and not against the Law quatenus a Law In the Retorn here they don't say that they found he was guilty but only that they found cause to suspect him Now what Remedy can be had in such a Case can an Issue be taken whether they had cause to suspect him or no Put the case one who had been fined 10 l for an Offence against this Act in which case the Statute allows of an Appeal had come to Mr. Rudyard to know what he should do and he had advised him to bring an Appeal at the Quarter Sessions this is no Offence and yet 't is an abetting to such as meet and perhaps might be a cause of suspition to a Iustice of Peace I do not see that the Retorn is good in any part of it and therefore he ought to be discharged but I think the Iustices should do well if they know him to be guilty to commit him by a better Warrant whereupon the Prisoner was discharged For it is the usage of this Court when the Iudges are of three Opinions as here my Lord Chief Justice and Tyrrell for discharging him Archer for putting him to Bail and Wyld for remanding him to give the Rule according to the Opinion of the Two which agree The Court said they had often directed that no Habeas Corpus should be moved for in this Court except it concerned a Civil Cause because when the Party was brought in and the Cause shewn this Court cannot proceed upon it therefore the proper place to move for them is the Kings Bench but they permitted it in this Case because the Party was an Attorney of the Court. The Court demanded of Rudyard upon his first bringing in whether he would submit to what they should propose and direct he said he would submit to the Rule of the Court but the Court told him that he must do but demanded whether he would yield to what they should do by way of Arbitration but he tho' advised otherwise by his own Counsel discovered his unwillingness to submit to any thing but the Rule of Law Termino Sancti Michaelis Anno 23 Car. II. In Communi Banco Methuselah Turner versus Sir Samuel Sterling Pas ' 23 Rot ' 363. IN an Action upon the Case brought by the Plaintiff against the Defendant the Plaintiff declares That London is an Ancient City and that there is an Ancient Bridge and that there use to be two Officers for it to look after it called Bridgmasters and that they have certain Fees and Profits belonging to them And that there is a Custom for the Citizens assembled in a Common Hall or Court yearly to choose or continue those Bridgemasters And another Custom that if one of these die within the Year that the Mayor shall assemble a Common Hall and they being Congregated shall proceed to the election of another Bridgemaster in his stead for the residue of the year And another Custom that upon their proceeding to Election if there be two Persons upon Election he that is chosen by the major number of Votes is duly Elected and that if one in such case require that the Polls should be numbred that the Mayor ought to allow the Poll and that the Assembly ought to be dismissed till that were done And another Custom that the Party so chosen ought to be sworn and used to receive the Profits to his own Use That 24 June 22 nunc Regis there was a Common Hall assembled the Defendant being then Mayor and that A. and B. were then and there chosen to this Office c. and being so A. died in October following and on the 18th of the same October there was another Common Hall for the Election of a Bridgemaster in his stead congregated by the Defendant and then and there the Plaintiff and one Allen stood as Competitors to be chosen for that Office and the Question grew which had the greatest number of Electors and the Plaintiff avers that he had the greatest Number and the other denied it and he requested that according to the Custom they might go to the Poll and the Defendant not minding the execution of his Office but violating the Law and Custom of the City did then and there malitiously refuse the numbring the of Polls and made Proclamation That the Congregation of Electors should depart and discharged the Court and the other man was sworn and so he lost the Profits of the Place c. Vpon Not Guilty pleaded and a Verdict for the Plaintiff after it had been several times spoken to in Arrest of Iudgment the Court delivered their Opinions seriatim Wyld I think the Action well lies for otherwise it will be in the power of every Head Officer to get whom he will have chosen or refused It is objected That non constat whether the Plaintiff should have been chosen Answer The Law gives an Action for but a possibility of Damage as an Action lies for calling an Heir Apparent Bastard It was objected also That at the Common Law there was no Action for a Parliament man against a Sheriff for not returning of him being Elected I Answer That is a place of Burthen this of Profit if I have an Horse or Beast-Market and a Toll for Sale and one hinder the Beasts from coming hither non constat whether they should be sold Yet for the possibility of that and of the loss of the Toll thereon an Action lies 41 E. 3. 24. Pl. 17. b. An Action of the Case was brought against a Sheriff for making of a Precept to one to make a Retorn in the Plaintiffs Case who indeed was not a Bailiff of a Franchise and thereupon the Retorn was quashed Br '
they have been favourably Construed A Mannor in Reputation hath passed by the name of a Mannor in a Recovery Sir M. Finch's Case in Co. and in 5 Co. Dormer's Case Common Recoveries have been admitted of an Advowson All here is to be taken as one Conveyance A Deed expressing the intent may abridge the Recovery in the number of Acres 2 Co. 76. 'T is true in case of the King as that in Mo. 710. there shall be no larger Construction than the express Words import So where the Intent appears as that in Dyer 261. B. North Chief Justice Wyndham and Atkyns Scroggs absent but said by the Chief Justice to be agreed were of the same Opinion and that Common Recoveries were not to be overthrown by nice Constructions and that the Inconvenience objected against the Intent being explained by a Pocket Conveyance was the same where a man had several Lands in the same Vill that of late they have directed the Cursitors to make out Writs of Lands in Parochia They said that there was no Case express against this and that it was the stronger because found in the Verdict that he which suffered the Recovery had no Lands in the Vill and therefore must be void if not extended to the Parish Termino Paschae Anno 32 Car. II. In Communi Banco The Case of Dodwell and the University of Oxford A Prohibition was prayed to the Chancellors Court of the University of Oxford in the behalf of Dodwell who being a Townsman of Oxford was Libelled against in the said Court upon a Statute or By Law of the University made in King James's time that whoever Privilegiatus sive non privilegiatus should be taken Walking in the Streets at Nine of the Clock at Night or after having no reasonable Excuse to be allowed by the Proctor c. should forfeit 40 s c. whereof one Moiety was to go to the University and the other to the Proctor c. that should take him And that Dodwell was taken walking abroad at that Hour and being demanded a Reason thereof he refused to give any Account causa contemptus ad morum reformationem this Libel was Exhibited The Prohibition was moved for the last Term but in regard the Court observed it touched the Jurisdiction of the University on the one hand and concerned the Liberties and Rights of the Townsmen on the other hand they deferred the granting of it until they should hear Counsel on both Sides which was appointed this Term. And now sundry ancient Charters were shewn by which was granted to the University a Iurisdiction tam in Laicos quam in alios and a By-Law made above 200 years since against Night-walking with the penalty of 40 s upon the Offender and Presidents of Proceeding thereupon in the Chancellors Court and that they were as well Guardians of the Peace by Prescription as by Charter And an Act of Parliament of 13 Eliz. was shewn whereby their Jurisdictions and Priviledges and Statutes were Confirmed And altho' the Mayor hath also a Commission of the Peace yet 't is subordinate and he swears Fealty to the Chancellor Curia This Libel is grounded upon a By-Law of 7 Jac. and being subsequent to that Statute of 13 Reginae it is questionable whether warranted by it or no This By-Law and Proceeding cannot be grounded nor derive Authority from their being Guardians of the Peace by Prescription as it seems they are by 9 H 6. 44. For without Act of Parliament or express Prescription a Corporation cannot make a By Law to bind those which are not of the Body Justices of the Peace cannot ordain a Penalty for a Crime without their Jurisdiction and the Proceeding in the Chancellors Court which is according to the Civil Lawâ— cannot be warranted by the Kings Charter For no Court other than such as proceed according to Law can be unless by Prescription or Act of Parliament wherefore in regard if the University should Intitle themselves to this Jurisdiction by Prescription it were properly triable by a Jury And if upon the Act of 13 Eliz. Matter of Law might arise how for the Act might extend North Chief Justice Atkyns and Scroggs thought it was not fit they should determine those Questions upon a Motion but inclined to grant the Prohibition and propounded to the parties to agree that the Libel should be amended wherein it was grounded upon the By-Law made 7 Jacobi which being subsequent to the Act of 13 Eliz. the Merits of the Cause would not be brought before themselves to determine the Grand Points which was agreed And then the Court said that they would grant a Prohibition and let the other Plead c. For North said that they did often deny a Prohibition tho' it were a Writ ex debito Justitae where they saw no Colour for it But if any material Questions were like to arise it was proper to grant it and not to determine them upon Motion but upon pleading to the Prohibition and therein it differed from a Habeas Corpus which was to be inst aly granted because the party is in Prison but there is no such speed requisite in a Prohibition But Wyndham was against the Prohibition in the Case at Bar for he took it that the By-Law 7 Jac. was but in Confirmation of that made before and as a Renewing of it which he took to be confirmed by the Act of 13 Eliz. Nota Scroggs said that Nine of the Clock could not be held such an Hour as it should be a Crime for a Townsman to walk at no more than Three in the Afternoon Tho' for Scholars it might be reasonable to restrain them but no Reason that Townsmen should be subjected to such Rules as were proper for Scholars And upon this he much grounded his Opinion for the Prohibition Anonymus IN an Action of Trespass the Defendant pleaded That the Plaintiff was Impropriator of such a Rectory and that he was sued in the Ecclesiastical Court and by Sentence there the Profits were sequestred for the Repair of the Chancel To which the Plaintiff demurred supposing that by 31 H. 8. the Profits of Rectories Impropriate were made Lay Fee and so not subject to be sequestred by the Court Christian and therefore it was supposed that the Lay Impropriator could not sue for Tythes in the Spiritual Court. For which Cause 32 H. 3. was made to empower Lay-men to recover them and 35 H. 8. gives the Ordinary Remedy for Procurations and Synodals which was conceived had been lost by making the Rectories Lay Fee 2 Cro. 518. in Parry and Banks's Case it is Resolved that when the Rectory is in the hands of a Lay Impropriator the Ordinary cannot dissolve the Vicaridge nor in such case cannot augment the Vicaridge 2 Roll. 339. The Form of Pleading was also Objected unto As First 'T is not positively alledged that the Chancel was out of Repair but that he was Libelled against which Libel did mention only it to be
were Six years Arrear of a certain Salary belonging to the said Office according to the Agreement aforesaid due and payable to the Plaintiff which he the Plaintiff had not received and the Defendant had not paid unto him licet saepius requisitus and so the Defendant had broke his Covenant The Defendant pleaded in Bar That he had from the time of the Agreement aforesaid to the time of the Writ brought permitted the Plaintiff to receive yearly the Profits of the said Office according to the said Agreement absque hoc that the Defendant had or received any part of the Profits of the said Office To this the Plaintiff Demurred and shewed for the Cause of Demurrer that the Defendant had traversed Matter not alledged And upon the first Argument Judgment was given for the Plaintiff by the whole Court that the Traverse was not good And the Court held that upon this Agreement the Defendant was not bound to pay the Money grown due for the Profits of the Office to the Plaintiff but was only restrained from intermedling with them and to leave them to be received by the Plaintiff Bush versus Buckingham Bedf. ss Debt upon a Bond. THOMAS Buckingam nuper de Shenly in Com' Bucks Yeoman alias dict' Thomam Buckingham de Houghton Reg ' in Com' Bedford ' Yeoman sum ' fuit ad respondend ' Mariae Bush Vid ' de placito qd ' reddat ei centum libras quas ei debet injuste detinet c. Et unde eadem Maria per Robertum Jenkin Attorn ' suum dic ' qd ' cum praedictus Tho' undecimo die Maii Anno Dom ' milliesimo sexcentesimo octogesimo sexto apud Luton ' per quoddam scriptum suum obligatorium concessisset se teneri praefat ' Mariae in praedictis centum libris solvend ' eidem Mariae cum inde requisit fuisset praedictus tamen Thomas licet sepius requisit ' praedictam centum libras eidem Mariae nondum reddidit Set ill ' ei hucufque reddere contradixit adhuc contradic ' unde dic ' qd ' deteriorat ' est dampnum habet ad valenc ' viginti librarum Et inde produc ' Sectam Profert in Curia scriptum c. Et profert hic in Cur ' scriptum praedictum qd ' debitum praedictum in forma praed ' testatur cujus dat' est die anno supradict c. Defendant craves Oyer of the Condition Et praedictus Thomas per Humfrid ' Taylor Attorn suum ven ' defend ' vim injur ' quando c. Et pet ' audit ' scripti praedicti ei legitur c. pet ' eciam audit ' conditionis ejusdem scripti ei legitur in hec verba The Condition of this Obligation is such that if the above bound Thomas Buckingham and William Holk or either of them they or either of their Heirs Executors Administrators or Assigns or any of them do or shall well and truly pay or cause to be paid unto the abovenamed Mary Bush her Executors Administrators or Assigns or any of them the full and just sum of fifty two pounds and ten shillings of good and lawful Many of England in or upon the twelfth day of November next ensuing the date hereof without fraud or further delay That then this present Obligation to be void and no effect or else to remain in full force and vertue And pleads the Statute of Usury Quibus lectis audit ' idem Thomas dic ' qd ' ipse de debito praedict virtute scripti praedicti onerari non debet quia dic ' qd ' per quendam Actum in Parliament ' Dom ' Caroli Secundi nuper Reg ' Angliae inchoat ' tent ' apud Westm ' in Com' Midd ' vicesimo quinto die Aprilis Anno Regni sui duodecimo edit ' provis inter alia inactitat ' fuit Authoritat ' ejusdem Parliament ' qd ' nulla persona sive personae quaecunque ab post vicesimum nonum diem Septembris Anno Dom ' millesimo sexcentesimo sexagesimo super aliquem contractum ab post praedictum vicesimum nonum diem Septembris caperet seu caperent direct ' vel indirect ' pro accommodatione Anglicè leave aliquorum denar ' mercimoniorum merchandizarum vel al commoditat ' quorumcunque ultra valor ' sex librarum pro differend ' Anglicè forbearance centum librarum pro Anno sic secundumistam ratam pro majori vel minori summa vel pro longiori seu breviori tempore Et qd ' omnes obligationes Anglicè Bonds contract ' assuranc ' quecunque post tempus praedict ' fact ' pro solutione alicujus principal ' summae pecun ' accommodand ' vel convent ' performari super vel pro aliqua usuria Anglicè Vsury super quas vel per quas reservat ' vel capt ' foret ultra ratam sex librarum in centum libris ut praefertur penitus vacuae forent prout per eundem Actum in t ' al' The Usurious Contract plenius liquet praedictus Thomas dic ' qd ' post praedict ' vicesimum nonum diem Septembris in Actu praed ' superius mentionat ' ante confection ' scripti obligat ' praedict ' scilicet praed ' undecimo die Maii An' Dom ' milesimo sexcentesimo octogesimo sexto supradict ' apud Luton praed ' in t ' praefat ' Mariam ipsum Tho' corrupt ' contra form ' Statut ' predict ' agreat ' concordat ' fuit qd ' praed ' Maria accommodaret eidem Thomae quinquagint ' libras eidem Mariae praedict ' duodecimo die Novembris in Conditione praed ' spec ' resolvend ' qd'que praedict ' Thomas pro lucro interesse differendo dando diem solutionis praedict ' quinquaginta librarum per tempus illud solveret praefat ' Mariae summam duarum librarum decem solidorum Qd'que pro securitat ' solutionis tam praedictarum quinquata librarum de principal ' debito praed ' quam praedict ' duarum librarum decem solidorum ipse idem Thomas per ' scriptum suum obligatorium debit ' legis forma conficiend ' deveniret tent ' obligat ' The Bond to be given thereupon praefat ' Mariae in centum libris cum conditione eidem subscript ' pro solutione quinquaginta duarum librarum decem solidorum super praedict ' duodecimum diem Novemb ' tunc prox ' sequen ' idem Thomas ulterius dic ' qd ' in performatione corrupt ' concordiae praedict ' in t ' ipsam Mariam praefat ' Thomam in forma praed ' habit ' fact ' praedict ' Mariae postea scilicet praedict ' undecimo die Maii Anno Dom ' The Mony lent millesimo sexcentesimo octogesimo sexto supradicto apud Luton ' praedict ' accommodavit eidem Thomae quinquaginta libras resolvend ' eidem Mariae praedicto
which it was answered That they were not tyed to the Time but the Place it was ibidem facere Ordinationes and not adtunc ibidem But the Court gave Judgment upon the first Matter Newport versus Godfrey THe Plaintiff brought an Action of Debt in the Detinet against Godfrey Executor of Stephen Turner for 70 l arrear of Rent and declared upon several Demises upon the 28th of September 1685. to the said Turner reserving several Rents of which there became arrear to the Plaintiff in the Life time of the said Turner 70 l and it appeared by the Declaration that the Leases ended in the Life of the said Turner In Bar of which the Defendant pleaded several Bonds entred into by the Testator to divers persons for the payment of Money which he avers to be all for true and just Debts and that he had administred all besides Goods to the value of 40 l which he retained towards satisfaction of the said Bonds c. To which the Plaintiff demurred and it was Argued last Term for the Defendant that a Debt upon a Specialty was to be preferred before Debt for Rent upon a Lease parol Styl Rep. 61. Rolls said that a Specialty was of an higher nature than Rent reserved upon a Lease by Deed. Indeed it is made a Quaere in Roll. Abr. 1. part 927. but if Rent should be preferred where the Lease was continuing after the Death of the Testator in regard the Testator's Goods are liable to be distrained for it which the Executor cannot withstand Yet there is not the like Reason when the Lease expires in the Life of the Testator and the Case was adjourned to this Term for the Iudgment of the Court. And the whole Court were of Opinion that Judgment should be for the Plaintiff For tho' the Lease be determined yet the Debt still savours of the Realty and is maintained in regard of the Profits of the Land received insomuch that no Wager of Law lies in Debt for Rent tho' brought after the Lease determined A Bond given for Rent will not drown it 11 H. 4. 75. b. an Action lies against the Executors of an Assignee of a Lease for Rent in the Testator's time and yet the Assignee is chargable only in respect of the Lease Vid. 13 H. 4. 1. a. Office of Executors 209 210 211 c. Godfrey versus Ward IN an Action of Debt for Rent The Defendant pleaded the Statute of Limitations and that Causa Actionis praedicte c. accrevit above six years before the Writ brought To this the Defendant demurred and the Cause of the Demurrer was upon the late Statute for reviving of Process anno primo Willielmi Mariae by which it is provided in regard there was an Interruption of the Government and proceedings of Law from the 11th of September 1688. to the 13th of February following that the time within those Days should not be accounted as any part of the six years to barr an Action by the Statute of Limitations or of the six Months for bringing a Quare Impedit c. so as it was urged that the Defendant should have shewn that six Years and so many Days were elapsed as are between the 11th of December and the 13th of February For tho' six years may be passed yet the Plaintiff may be within time by reason of the said Statute But the Court were of Opinion that the Defendants Plea was well and this should be shewn of the Plaintiffs part for the Statute does not alter the Form of Pleading but that shall be as it was before and the Plaintiff if the Matter will bear it is to help himself upon the said Statute The old way upon the Statute of Limitations was for the Defendant to plead the Statute at large but of late years the General Pleading of Non assumpsit infra sex annos has been allowed Warren versus Sainthill Devon ' ss SAMUEL SAINTHILL nuper de Bradmuch in Com' praedict ' Armig ' Johannes Savery nuper de Bradmuch in Com' praedict ' Husbandnian attach ' fuer ' ad respondend ' Thomae Warren gen ' de placito Transgr ' super Casum c. Case for stopping up of a Foot way The Plaintiff says That was possest he and Inhab of in an ancient Messuage And that habuit habere debuit a Foot-way for himself and his Servants Et unde idem Thomas per Johannem Prowse Attorn ' suum Queritur quod cum praedict ' Thomas vicesimo nono die Septembris anno regni domini Regis dominae Reginae nunc primo continue postea usque primum diem Januarii tunc ê“x ' fequen ' fuit possessionat ' inhabitans de in quodam antiquo Mesuagio scituat ' jacen ' in villa de Watterstaffe infra paroch ' de Bradmuch praedict ' ac ê“ totum tempus ill ' quandam viam pedestrem ducen ' à Villa de Watterstaffe praedict ' in per trans quaedam Clausa voc ' Crollands Smiths Down and Tulver Park infra paroch ' de Bradmuch praedict ' usque ad villam de Bradmuch in Bradmuch praedict ' pro se servientibus suis ad eundem redeund ' omnibus temporibus ad libitum ejus tanquam ad Mesuag ' As belonging to his Messuage praedict ' spectan ' pertinen ' habuit de jure habere debuit praedicti Samuel ' Johannes machinan ' intenden ' ipsum Thomam minus rite perturbare ipsum de via praed ' impedire deprivare praedict vicesimo nono die Sept ' Anno primo supradicto apud paroch ' de Bradmuch quaedam Fossa Trencheas ex transverso viae praedict ' The Defendant to disturb him in the Way dug Ditches and Trenches cross the Way And erected Hedges and Fences cross it Whereby he was hindred of his Way in t ' Villas de Watterstaffe Bradmuch praedict ' fodier ' fecer ' ac etiam viam ill ' ibedem cum quibusdam sepibus fensuris ex transverso viae praedict ' eject ' obstruxer ' praecluser ' per quod idem Thomas à via praedict ' in forma praedict ' habend ' à praedict ' vicesimo nono die Septembris usque praed ' primum diem Januarii Anno primo supradicto penitus impedet ' deprivat ' fuit ad dampnum ipsius Thomae quadragint ' librar ' Et inde ê“ducit sectam c. To this the Defendant pleaded a frivolous Plea and the Plaintiff demurrs and the Defendant joyned in the Demurrer and Judgment was given for the Plaintiff Warren versus Sainthill IN an Action upon the Case for Stopping of a Way the Plaintiff declared that he was possessed and an Inhabitant of and in a certain ancient Messuage the 29th of Sept. in the first year of the now King and Queen and so continued to the first day of January then next following and for all that time had a Foot-way over the Defendant's
may be sold Noell versus Robinson THe Plaintiffs Father being seised in Fee of a Foreign Plantation devised it to the Plaintiff and made the Defendant Executor The Executor let it for years reserving Rent in Trust for the Plaintiff who now Exhibited his Bill to have his Rent The Defendant Confessed the Devise of the Testator and the Lease made by himself but said That great Losses had fallen upon the Testator's Estate and that he paid and secured which is payment in Law for the Debts of the Testator to â— great value and that he hoped he should be permitted to reimburse himself by the receipt of this Rent notwithstanding the mentioning of the Trust as aforesaid The Cause came to Hearing and the Court Decreed for the Plaintiff For altho' a Legatee shall refund against Creditors if there be not Assets and against Legatees all which are to have these proportion where the Assets fall short yet the Executor himself after his Assent shall never bring the Legacy back But if he had been sued and paid it by the Decree of this Court the Legatee must have refunded as if a Debtor to a Bankrupt pays him voluntarily he must pay him over again Otherwise of payment by Compulsion of Law Note My Lord Chancellor said That if they give Sentence for a Legacy in the Ecclesiastical Court a Prohibition lies unless they take Security to Refund Note also in this Case that tho' it be an Inheritance yet being in a Foreign Country 't is looked upon as a Chattel to pay Debts and a Testamentary thing It was Objected That this could not be taken for an Assent for if so how could the Executor let it But the Court said that it did tantamount to an Assent and being a lawful Act a little matter will be taken for an Assent Anonymus A Bill was Exhibited by the Assignees of Commissioners of Bankrupts to have an Account against the Defendant of the Bankrupts Estate The Defendant pleaded that he was but Servant to the Bankrupt and had given an account of all to his Master and likewise had been Examined before the Commissioners upon the whole Matter Vpon Hearing his Plea my Lord Chancellor Over-ruled it and Ordered that he should Answer Anonymus IF a man makes a Lease or devise an Estate for Years he being seised of an Estate of an Inheritance for payment of Debts if the Profits of the Lands surmount the Debt all that remains shall go to the Heir tho' not so exprest and albeit it be in the case of an Executor Barney versus Tyson THe Case was thus The Plaintiff in the Life of his Father being about 26 years of Age and having occasion for Money prevails with the Defendant to let him have in Wares to the value of 400 l and gives him Bond for 800 l to be paid if he survived his Father at which time an Estate would befall him of 5000 l per Annum and he having survived his Father he preferred his Bill against the Defendant to compel him to take his Principal Money and Interest And it was proved in the Case that the Defendant was Informed at the time of this bargain that the Father was ill and not like to live and he did live but a year and half after and that one Stisted a man very Infamous was employed in the transaction of this Bargain And the Plaintiff obtained a Decree in the time of the Lord Chancellor Fynch And now upon a Petition to the Lord Keeper North the Defendant obtained a Re-hearing And in maintenance of the Decree it was alledged that the hazard which was run was very little and such Bargains with Heirs were much to be discountenanced The Lord Keeper affirmed the Decree but said that he would not have it used as a President for this Court to set aside mens Bargains But this Case having received a Determination and the Defendant having accepted his Principal Money and Interest thereupon and there being only a slight Omission in the Enrolment of the Decree which if it had been done had prevented a Re-hearing and the Defendant having delayed his Application to him by Petition he would not now set the Decree aside Termino Paschae Anno 35 Car. II. In Cancellaria Hodges versus Waddington THe Case was thus An Executor wasted the Testator's Estate and made his Will wherein he devised divers of his own Goods and made his Son Executor Afterwards a Suit was commenced against the Son to bring him to an Account for the Estate of the first Testator which was wasted and pending that Suit the Son after the Bill brought against him by the Legatee of his own Goods delivered them to the Legatee and assented to the Legacy After which upon the Account against the Son it appeared that the first Executor had wasted the Goods of the first Testator to such a value And then the party at whose Suit the said Account was and who was to have the benefit thereof together with the Son and Executor of the first Executor preferred a Bill against the Legatee of the Goods to make him Refund and obtained no Relief especially for that he had made the Executor Plaintiff who should not be admitted to undo his own Assent But liberty being given to bring a New Bill against the Legatee and the said Executor the Cause came to Hearing and it was Decreed That the Legatee should Refund So that one Legatee that is paid shall not only Refund against another but a Legatee shall Refund against a Creditor of the Testator that can charge an Executor only in Equity viz. Upon a wasting by the first Executor But if an Executor pays a Debt upon a Simple Contract there shall be no Refunding to a Creditor of an higher Nature Note also The Principal Case went upon the Insolvency of the Executor Anonymus A Bill was brought setting forth a Deed of Settlement of Lands in Trust and to compel the Defendant who was a Trustee therein nominated to Execute an Estate The Defendant by Answer says That he believed that there was such a Deed as in the said Bill is set forth c. And upon the Hearing they would have read a Deed for the Plaintiff tho' not proved but upon a Commission taken out only against another Defendant to the Bill supposing it to be Confessed by the Answer But the Court would not permit the Reading of it for the Confessing goes no further than what is set forth in the Bill and will not warrant the Reading of a Deed produced altho' it hath such Clauses in it Anonymus A Bill was preferred against one to discover his Title that A.B. might be let in to have Execution of a Judgment The Defendant pleaded That he was a purchaser for a valuable Consideration but did not set forth That he had no Notice of the Judgment And it was Over-ruled for 't is a fatal Fault in the Plea Bird versus Blosse THe Case was thus One wrote a Letter signifying
of Priviledge fitting the Parliament 154 Prohibition A second Prohibition not grantable after a Consultation 47 Q Quantum meruit See Outlawry Que Estate See Corporation R Recovery A Deed Fine and Recovery do all make but one Assurance but each hath its several effect 31 Common Recoveries are Common Assurances and are not to be overthrown by nice Constructions 32 A Common Recovery stopt what shall be good Cause to stop it 90 Relation Of Relation its force and where it shall Operate 200 Remainder What shall be accounted a Contingent Remainder and what a Remainder vested 313 Rent Rent due if the thing let hath been really enjoy'd 68 A Rent cannot be reserved out of a thing Incorporeal 69 Every Quarters Rent is a several Debt and distinct Actions may be brought for each Quarters Rent Not so for part of the Money due upon Bond or Contract unless the Plaintiff shews that the rest is satisfied 129 A Debt for Rent payable by an Executor before Bonds because it savours of the Realty and is maintain'd in regard of the Profits of the Land received 184 Request Request where necessary to be set forth and where not 75 Rescous See Return Return If a Sheriff Return a Rescous it is not now Traversable tho' formerly it was 175 Reversion A Reversion is a present Interest tho' to take effect in possession after another Estate determined 328 Revocation What shall be a good Revocation in Equity 350 S Scire facias WHere one Ter-tenant is Return'd summon'd he may plead That there are other Ter-tenants tho' in another County 104. But he must not plead this by way of Abatement but demand Judgment si ipse ad breve praed in forma praed retorn ' respondere compelli debeat 105 The Record of a Scire facias naught in the Titleing not permitted to be amended 105 Scire facias in Chancery to Repeal a Patent 344 Settlement See Conveyance Marriage Mortgage A Voluntary Settlement avoided by a following Settlement in Joynture 363 Sheriff If a Sheriff of a City be in Contempt the Attachment shall go to the Coroners and not to the Mayor but if he be out of Office then it shall go to the succeeding Sheriff 216 Simony To sell an Advowson ea intentione that J.S. shall be presented Simony 39 In case of Simony the Presentation vests in the King without Office Quaere in other Cases 213 Statutes 13 E. 1. Stat. of Winton In an Action upon this Statute not necessary to set forth more in the Declaration than is pertinent to the Action 215 4. H. 7. cap. 24. Of Fines Of Claims after the coming in of Future Interests in the second Saving in this Act 333 21 Jac. 1. cap. 16. See Limitations 22 23 Car. 2. cap. 9. No more Costs than Damage explain'd 36 What Trespass within this Statute What not 48 29 Car. 2. cap. 3. A Promise by Letter a sufficient Promise in Writing within this Statute 361. This Statute does not extend to Trusts raised by Operation of Law 361 31 Car. 2. cap. 2. Where a Man commits a Capital Crime in Ireland he may be sent thither to be Tried thereupon notwithstanding that by this Act No Subject of this Realm shall be sent Prisoner to any Foreign parts 314 1 W. M. cap. 4. That Statute which saves time of Limitation does not alter the Form of Pleading but that shall be as it was before 185 197 Statute Recognizance See Fine What shall be esteemed a regular Extending of a Statute Merchant 326 Where the Interest of a former Statute shall drown'd in that of a latter being both Extended and assigned to the same person 326 327 328 The Extent of a Statute what it is and the Effect thereof 326 338 An Extent upon a Puisne Statute where Extended after a Prior Statute is in the nature of a Reversional Interest 328 When a former Statute is determin'd whether it be by release of the Debt by purchase of part of the Lands by being barr'd by Non-Claim upon a Fine Satisfaction acknowledged or any other means this lets in the Puisne Statute 332 An Extent begins by Record but it may end without Record for a Release by the Conizee after Extent determines it and he that hath a Puisne Statute may Enter 336 Cannot be assigned before Extent in Law 362 Surrender No Surrender of an Estate without Acceptance by the Surrenderee 199 Yet quaere for the Judgment was reverst in Parliament 208 That a Surrender divesteth the Estate immediately before express Assent of the Surrenderee 203 infr T Tail A Devise to one for Life Remainder to the Heir Males of his Body for ever this is an Estate-Tail in the Devisee 313 A Sum of Money cannot be Entailed 349 Tender Plea of a Tender without setting forth a Refusal not good otherwise if a place of Payment was appointed and the Party to Receive was not there 109 Tythes Whether Notice be necessary to be given to the Parson upon setting forth of Tythes 48 Traverse See Pleading Treason Whether Listing of Men to send beyond Seas to joyn the King's Enemies be Treason within the Clause of Levying War in the Stat. 25 Ed. 3. 316 Whether the indictment should not express in particular who those Enemies are or whether the General Words be not sufficient ibid. To List c. and an Intent to Depose the King is Treason within the Clause of Compassing the Death of the King 317 Trespass See Assent Whether a Suit in an Action of Trespass be a Breach of Covenant to hold and enjoy quietly 46 61 62 Where an Action of Trover will lye for Goods tho' an Action of Trespass would not for taking them 169 170 Trust See Chancery Limitation The force of the Word Trust in the Limitation of a Use 312 Where a Man buys Land in anothers Name and pays Money it will be a Trust for him who pays the Money tho' there be no Deed declaring the Trust 361 Trust executed in Chancery according to the Parties meaning 363 364 Tryal A New Tryal directed by the Lord Chancellor where the former Verdict has been complain'd of in a Bill before him the Complainant paying the Costs of the first Tryal 351 352 V Variance See Pleading Verdict See Baron and Feme A Mistake in an Indebitatus Assumpsit where good after Verdict 36 A Declaration tho' Inartificial is notwithstanding good after Verdict 174 Vill. Vill and Parish the Diversity and where Lands in One shall pass in the Other of the same Name 31 Vmpire Arbitrators and Umpire cannot lawfully have concurrent Authorities at the same time 115 Vse Where Money is paid to A. for the Use of B. in whom the Right and Interest vests 310 Lands may be Devised to the Use of another but if no Use be limited they will lodge in the Devisee for a Devise implies a Consideration 312 Vsury No Unlawful Usury if the Agreement be not Corrupt tho' the Wording of the Condition may be otherwise by Mistake
if it were Repaired be it by any Body the Plaintiff hath no Damage nor cause of Action But Twisden doubted and afterwards the parties waived their Demurrer and went to Issue Anonymus AN Information was brought upon the Statute of Usury for taking the 30th of May in the 20th year of the King 42 s pro deferendo 25 l for three Quarters of a year viz. from the 30th of August Anno 19. Vpon Not Guilty pleaded it was found for the King and moved in Arrest of Judgment that this was not within the Statute which extends only where there is an Usurious Contract in the beginning and there it makes the Security void Or if there be an Agreement after the Money lent for Forbearance upon Consideration of paying more than the Statute allows for Interest which is punishable in an Indictment or Information but the Money is not lost But in this case the time of Forbearance was past and the party might give what he pleased in recompence for it there being no precedent Agreement to enforce him to it Sed non allocatur For the Court said They would expound the Statute strictly and if liberty were allowed in this case the Brokers might oppress the People exceedingly by detaining the Pawn unless the party would give them what they would please to demand for the time after failure of payment Wingate and Stanton the Bail of William Stanton IT was Resolved That where a Scire facias goes against the Bail in this Court an two Nichils are Returned and Judgment is had thereupon no Writ of Error can be brought in the Exchequer Chamber but in the Parliament only Also after such a Return it cannot be Assigned for Error that there was no Capias awarded against the Principal But in that case the Bail is relievable only by Audita querela But if the Sheriff Returns a Scire feci they may plead it Fitz. N.B. 104. I. Nota A man cannot Release a Debt by his Will The King versus Saunders SAunders was Convicted before two Justices upon the Statute of 32 H. 8. cap. 6. for carrying of a Gun Which being removed by Certiorari was quashed because it was coram nobis Justiciariis Domini Regis ad pacem suam conservand ' wanting the word assignatis Anonymus AN Indictment was quashed because it was Justiciarii ad pacem conservand ' assign ' and not ad pacem Domini Regis neither would ad pacem publicam serve And for another Reason because it was ad Sessionem in Com' tent ' and not pro Com' But if it were ad Sessionem in a Borough Incorporated it were good tho' it were not pro Burgo Maleverer and Redshaw DEbt upon a Sheriffs Bond The Defendant pleads that there was an Attachment issued out of Chancery against him Returnable Octab ' Sanctae Trin ' and the Condition of this Bond was that he should appear Crast Sanctae Trin. and so he pleads the Statute of 23 H. 6. against it for that it was taken for Easiamento favore The Plaintiff Replies That the Writ was Returnable Crastino Sanctae Trin. And Traverses That the Bond was taken for ease and favour To which the Defendant demurs Vid. 11 Co. 10. a. supposing that he should have Traversed that the Writ was Returnable Octab. Sanctae Trin. which is the Matter of the Defendants Bar and the other is but the consequence or Conclusion Et Adjornatur Gregory versus Eades ERror to Reverse a Judgment given in an Inferiour Court where an Assumpsit was brought and the Plaintiff declared upon three several Promises and the Jury found two for him and the other non Assumpsit And Judgment was given for the two that he should recover but no Judgment for the third that he should be amerced pro falso clamore or that the Defendant eat inde sine die And for this Cause Error was assigned But Powys Argued for the Defendant in the Writ of Error that the Judgment should be affirmed as to the Two Promises for which it was perfect and cited Miles and Jacob's Case in Hob. 6. and 2 Cro. 343. where an Action was brought for Words declared to be spoken at several times and several Damages given and Judgment and a Writ of Error brought and assigned for Error that the Words spoken at one of the times were not Actionable which tho' they were not yet the Judgment was Reversed quoad them only But the Court said That it was not like this Case for here the Judgment was altogether Imperfect and so were inclined to Reverse it but gave further time Ante. Anonymus IN Replevin the Defendant avows for Rent Arrear Vpon non concessit pleaded the Jury find for the Avowant The New Statute says That the Defendant may pray that the Jury should enquire what Rent is arrear and that he shall have Judgment for so much as they find Now the Court was moved that this might be supplied by a Writ of Enquiry as if they omit to enquire of the Four Points in a Quare Impedit it may be so supplied 10 Co. Cheney's Case But the Court held this could not be so for the Defendant loseth the advantage of it by not praying of it As where a Tales is granted if it be not Entred ad requisitionem Querentis or Defendentis it is not good wherefore he was bid to take his Judgment quod returnum habeat averiorum at the Common Law Anonymus FOur Executors two of them are under Age quaere Whether they shall all sue by Attorney Note An Infant may bring an Action against his Guardian which pleads any thing to his prejudice Not so of an Attorney Wells versus Wells IN an Assumpsit the Plaintiff declares as Administratix to her Husband who in his Life-time agreed with the Defendant That they should be Partners in making of Bricks for J. S. and after his Death the Defendant promised the Plaintiff in Consideration That she had promised him to relinquish her Interest in the Partnership that he would pay her so much Money as her Husband had been out about the Brick And upon non Assumpsit pleaded it was found for the Plaintiff It was moved in Arrest of Judgment that here was no Consideration for the Plaintiff had no interest in the Partnership which being joynt must survive to the Defendant and she ought to have shewn how she relinquished her Interest But the Court held it a good Consideration for it may be there were Covenants that there should be no Survivorship and the Court will intend after a Verdict that there were which tho' they do not sever the joynt Interest in Law yet they give Remedy in Equity which to debar her self of is a good Consideration and being laid by way of Reciprocal Promise there needs no averment of performance Termino Sancti Michaelis Anno 21 Car. II. In Banco Regis William Bate's Case A Prohibition was prayed to the Commissary of the Archdeacon of Richmond to stay a Suit