best Beast upon the Tenancy it must come on the other side to shew that it was not the Tenants Beast Keel The Cattel of a Stranger cannot be distrained unless they were levant couchant but it must come on the other side to show that they were not so So Judic pro Quer ' Wayman Smith AProhibition was prayed to the Court of Bristol upon this suggestion viz. That the cause of Action did not arise within the Iurisdiction of the Court Winnington There was a case here between Smith Bond Hill 17 Car. 2. Rot. 501. a Prohibition to Marleborough the suggestion grounded on Westm 1. cap. 34. granted And there needs not a Plea in the Spiritual Court to the Iurisdiction for that he cited F. N. B. 49. But he said he had an Affidavit that the cause of Action did arise out of their Iurisdiction Twisden I doubt you must plead to the Iurisdiction of the Court I remember a case here wherein it was held so and that if they will not allow it then you must have a Prohibition Winnington Fitzherbert is full Ruled that the other side shall shew cause why a Prohibition should not go and things to stay Humlock Blacklow DEbt upon a Bond for performance of Covenants in Articles of agreement The Plaintiff covenanted with the Defendant to assign over his Trade to him and that he should not endeavour to take away any of his Customers and in consideration of the performance of these Covenants the Defendant did Covenant to pay the Plaintiff 60 l. per annum during his life Saunders The words in consideratione performationis make it a Condition precedent which must be averred 3 Leon. 219. and those Covenants must be actually performed Twisden How long must he stay then till he can be entitled to his Annuity as long as he lives for this Covenant may be broken at any time That 's an Exposition that corrupts the Text. Judic nisi c. It was moved by one Hunt that the Venue might be changed in an Action of Indebitat Assumpsit brought by Mr. Wingfield Jones I conceive it ought not to be changed being in the case of a Counsellor at Law by reason of his attendance at this Court. Twisd In Mr. Bacon's case of Grays-Inn they refused to change the Venue in the like case So not granted An Indictment against one Morris in Denbigh-shire for Murther was removed into the Kings Bench by Certiorari to prevent the Prisoners being acquitted at the Grand-Sessions and the Court directed to have an Indictment found against him in the next English County viz. at Shrewsbury Vide infra Taylor Rouse Church-wardens of Downham versus their Predecessors THe Action was to make them Account for a Bell. They plead that they delivered it to a Bell-founder to mend and that it is yet in his hands The Plaintiff demurs the cause of his Demurrer was that this was no good Plea in Bar of the Account though it might be a good Plea before Auditors 1 Roll 121. Pemberton I conceive it is a good Plea for wherever the matter or cause of the Account is taken off the Plea is good in Bar. But he urged that the Action was brought for taking away bona Ecclesiae and not bona Parochianorum as it ought to have been Court The Property is not well laid So ordered to mend all and plead de novo Term. Mich. 22 Car. II. 1670. in B. R. AN Inquisition was returned upon the Statute against pulling down Inclosures They took Issue as to the damages only It was moved that before the Trial for the damages there might be Iudgment given to have them set up again having been long down Twisden When you have Iudgment for the damages then one Distringas will serve for setting up the Inclosures and the damages too As in an Action where part goes by default and the other part is traversed you shall not take out Execution till that part which is traversed be tried Vpon a motion by Mr. Dolbin for an Attachment Twisden said if a man has a Suit depending in this Court and be coming to Town to prosecute or defend it here he cannot be sued elsewhere But if a man come hither as a Witness he is protected eundo redeundo Wootton Heal. AN Action of Covenant was brought upon a Warranty in a Fine a term for years being Evicted Saunders I acknowledge that an Action of Covenant does well lye in this case but the Plaintiff assigns his breach in this viz. that one Stowell habens legale jus titulum did enter upon him and evict him which perhaps he did by virtue of a title derived from the Plaintiff himself 2 Cro. 315. Kirby Hansaker Jones contra To suppose that Stowell claimed under the Plaintiff is a foreign intendment and it might as well come on the Defendants side to show it And since that case in 2 Crook the Statute of 21 Jac. and the late Act have much strengthned Verdicts Twisden The Statutes do not help when the Court cannot tell how to give Iudgment The Plaintiff ought to entitle himself to his Action and it is not enough if the Iury entitle him Jones You have waived the title here and relyed upon the Entry of the Issue only which is non intravit c. Cur. advisare vult Lassells Catterton AN Action of Covenant for further assurance the Covenant being to make such Conveyance c. as Counsel should advise they alledge for breach that they tendred such a Conveyance as was advised by Counsel viz. a Lease and Release and set it forth with all the usual Covenants Levings moved in Arrest of Iudgment I conceive they have tendred no such Conveyance as we are bound to execute for we are not obliged to Seal any Conveyance with Covenants nor with a Warranty Besides that which they have tendred has a Warranty not only against the Covenantor but one Wilson 2 Cro. 571. 1 Rolls 424. Again our Covenant is to convey all our Lands in Bomer and the Conveyance tendred is of all our Lands in the Lordship of Bomer Twisden For the last exception I think we shall intend them to be both one And I know it hath been held that if a man be bound to make any such reasonable assurance as Counsel shall advise usual Covenants may be put in for the Covenant shall be so understood But there must not be a Warranty in it though some have held that there may be a Warranty against himself but I question whether that will hold But Weston on the other side said that the Objection as to the Warranty was fatal and he would not make any defence The King versus Morris Vid. sup MR. Attorney Finch shewed cause why a Certiorari should not be granted to remove an Indictment of Murder out of Denbighshire in Wales Twisden In 2 Car. 8 Car. it was held that a Certiorari did lye into Wales Morton By 34 H. 8. the Iustices
she ought not to starve If a woman be of so haughty a stomack that she will chuse to starve rather then submit and be reconciled to her husband let her take her own choise The Law is in no default which doth not provide for such a wife If a man be taken in execution and lye in Prison for Debt neither the Plaintiff at whose suit he is arrested nor the Sheriff who took him is bound to find him Meat Drink or Cloathes but he must live on his own or on the Charity of others and if no man will relieve him let him dye in the name of God says the Law Plow 68. Dive Manningham so say I if a woman who can have no Goods of her own to live on will depart from her husband against his will and will not submit her self unto him let her live on Charity or starve in the name of God for in such case the Law says her evil demeanour brought it upon her and her death ought to be imputed to her own wilfulness As to my Brother Tyrrells Objection it were strange if our Law which gives relief in all cases should send a woman unto another Law or Court to seek remedy to have maintenance I answer It s not sending the wife to another Law but leaving the case to its proper Iurisdiction the case being of Ecclesiastical Conusance Is it any strangeness or disparagement to the Common-Pleas to send a Cut-purse or other Felon taken in the Court to the Kings-Bench to be Indicted or to the Kings-Bench to send a woman to the Common-Pleas to recover her Dower Why is it more strange for the Common Law to send a Woman to the Ordinary to determine differences betwixt her and her husband touching matters of Matrimony then for our Courts at Common Law to write unto the Ordinary to certifie Loyalty of Marriage Bastardy or the like where Issue is joined on these points in the Kings Courts for although the proceeding and process in the Ecclesiastical Courts be in the names of the Bishops yet these Courts are the Kings Courts and the Law by which they proceed is the Kings Law 5 Rep. 39. Caudries case but the reason in both cases is quia hujusmodi causae cognitio ad forum spectat Ecclesiasticum 30 H. 6. b. Old book of Entries 288. according to that of Bracton lib. 3. fo 107. Stamf. 57. Sunt casus spirituales in quibus Judex secularis non habet cognitionem neque Executionem quia non habet coercionem In his enim casibus spectat cognitio ad Judices Ecclesiasticos qui regunt defendunt sacerdotium Hereunto agrees Cawdries case 5 Rep. 9. As in temporal causes the King by the mouth of his Iudges in his Courts of Iustice determines them by the temporal Law so in causes Ecclesiastical and Spiritual the Conusance whereof belongs not to the Common Law they are decided and determined by the Ecclesiastical Iudges according to the Kings Ecclesiastical Laws And that causes of Matrimony and the differences between husband and wife touching Alimony or maintenance for the wife which are dependant upon or incident unto Matrimony are all of Ecclesiastical and not of secular Conuzance is evident by the Books and Authorities of our Laws de causa Testamentari sicut nec de causa Matrimoniali Curia Regia se non intromittat sed in foro Ecclesiastico debet placitum terminari Bracton lib. 2. cap. 20. fo 7. All causes Testamentary and causes of Matrimony by the Laws and Customs of the Realm do belong to the spiritual Iurisdiction 24 H. 8. cap. 2. The words of the Writ of Prohibition granted in such cases are placita de Catallis debitis quae sunt de Testamento vel Matrimonio spectant ad forum Ecclesiasticum In a suit commenced by a woman against he husband before the Commissioners for Ecclesiastical causes for Alimony a Prohibition was prayed and granted because it is a suit properly to be brought and prosecuted before the Ordinary In which if the party find himself grieved he may have relief by Appeal unto the superiour Court and that he cannot have upon a sentence given in the high Commission Court 1 Cro. 220. Drakes case But 't is objected by my Brother Tyrrell and Twisden that the remedy in the Ecclesiastical Court is not sufficient for if the husband will not obey the Sentence of the Ordinary it is but Excommunication for his Contumacy and will neither feed nor cloath the wife Are the Censures of the holy Mother the Church grown of so little Accompt with us or the separation a communione fidelium become so contemptible as to be slighted with but Excommunication hath our Law provided any remedy so penal or can it give any Iudgment so fearful as this With us the rule is committitur Marescal ' or Prison ' de Fleet. There the Sentence is traditur Satanae which Iudgment is more penal Take him Gaoler till he pay the Debt or take him Devil till he obey the Church And yet their Iudgment is warranted by the rule of St. Paul whom I have delivered unto Satan 1 Cor. 5. 5. whereupon the Coment says Anathema ab ipso Christi corpore quod est Ecclesia recidit Causa 3 quest 4 Cam ' Egell trudam and also Nullus cum Excommunicatis in oratione aut cibo aut potis autesculo communicet nec ave eis dicat Causa 2 quest 3 Can. Excommunicat ' Bracton lib. 5. cap. 23. fo 42. As much is said by our Law and it is to the same effect Excommunicat ' interdicitur omnis actus legitimus Ita quod agere non potest nec aliquem convenire cum ipso nec orare nec loqui nec palam nec abscondite vesci licet The second ground of the Law of Excommunication is the Law of England and it is a ground in the Law of England That he which is accursed shall not maintain any Action Doctor Stu. 11. Where a man is excommunicated by the Law of the Church if he sue any Action real or personal the Tenant or Defendant may plead that he is Excommunicated and demand Iudgment if he shall be answered Lit. 201. the Sentence is set forth at large in the old Statute Book of Magna Charta and is intituled Sententia lata super chartas namely Authoritate Dei patris omnipotentis filii spiritus Sancti Excom̄unicamus Anathematizam a liminibus Sanctae matris Ecclesiae sequestram ' omnes illos c. 12 H. 3. fo 146. He which by the Renunciation is rightfully cut off from the Vnity of the Church and Excommunicate ought to be taken by the whole multitude as a Heathen and a Publican until he be openly reconciled by Penance Act 33. confirm ' per 13 Eliz. cap. and this is grounded on the rule of our blessed Saviour dic ' Ecclesiae And if he neglect to hear the Church let him be as an Heathen and Publican Matt. 18. 17. Shall a
cannot deprive us of the benefit of the Common Law and in the Vice-Chancellors Court they proceed by the Civil Law If you allow this demand there will be a failer of Justice for the Defendants being a Corporation cannot be arrested they can make no stipulation the Vice-Chancellors Court cannot issue Distringas's against there Lands nor can they be excommunicated Presidents we find of Corporations suing there as Plaintiffs in which case the afore-mentioned inconvenience does not ensue but none of Actions brought against Corporations Maynard contra Servants to Colledges and Officers of Corporations have been allowed the priviledge of the Vniversity which they could not have in their own right and if in their Masters right a fortiori their Masters shall enjoy it The word persona in the demand will include a Corporation well enough Vaughan Chief Justice Perhaps the words atque confirmat ' c. in the demand of Conisance are not material for the priviledges of the Vniversity are grounded on their Patents which are good in Law whether confirm'd by Parliament or not The word persona does include Corporations 2 Inst 536. per Coke upon the Statute of 31 Eliz. cap. 7. of Cottages and Inmates A demand of Conisance is not in derogation of the Common Law for the King may by Law grant tenere placita though it may fall out to be in derogation of Westminster-Hall Nor will there be a failer of Justice for when a Corporation is Defendant they make them give Bond and put in Stipulators that they will satisfie the Iudgment and if they do not perform the Condition of their Bond they commit their Bail They have enjoyed these priviledges some hundreds of years ago The rest of the Iudges agreed that the Vniversity ought to have Conisance But Atkyns objected against the form of the demand that the word persona privilegiata cannot comprehend a Corporation in a demand of Conisance howsoever the sense may carry it in an Act of Parliament Ellis Wyndham If neither Schollars nor priviledged persons had been mentioned but an express demand made of Conisance in this particular cause it had then been sufficient and then a fault if it be one in Surplusage and a matter that comes in by way of Preface shall not hurt Atkyns It is not a Preface they lay it as the foundation and ground of their claim The demand was allowed as to matter and form Rogers Danvers DEbt against S. Danvers and D. Danvers Executors of G. Danvers upon a Bond of 100 l. entred into by the Testator The Defendants pleaded that G. Danvers the Testator had acknowledged a Recognisance in the nature of a Statute Staple of 1200 l. to J. S. and that they have no assets ultra c. The Plaintiff replied that D. Danvers one of the Defendants was bound together with the Testator in that Statute to which the Defendants demur Baldwin pro Defendente If this plea were not good we might be doubly charged It is true one of us acknowledged the Statute likewise but in this Action we are sued as Executors And this Statute of 1200 l. was joynt and several so that the Conisee may at his Election either sue the surviving Conisor or the Executors of him that is dead so that the Testators Goods that are in our hands are lyable to this Statute It runs concesserunt se utrumque eorum if it were joynt the charge would survive and then it were against us It is common for Executors upon pleinment administer pleaded to give in Evidence payment of Bonds in which themselves were bound with the Testator and sometimes such persons are made Executors for their security The Opinion of the Court was against the Plaintiff whereupon he prayed leave to discontinue and had it Amie Andrews ASsumpsit The Plaintiff declares that whereas the Father of the Defendant was endebted to him in 20 l. for Malt sold and promised to pay it that the Defendant in consideration that the Plaintiff would bring two Witnesses before a Iustice of Peace who upon their Oaths should depose that the Defendants Father was so endebted to the Plaintiff and promised payment assumed and promised to pay the money then avers that he did bring two Witnesses c. who did swear c. The Defendant pleaded non Assumpsit which being found against him he moved by Sergeant Baldwin in Arrest of Iudgment that the consideration was not lawful because a Iustice of Peace not having power to administer an Oath in this case it is an extrajudicial Oath and consequently unlawful And Vaughan was of Opinion that every Oath not legally administred and taken is within the Statute against prophane swearing And he said it would be of dangerous consequence to countenance these extrajudicial Oaths for that it would tend to the overthrowing of Legal proofs Wyndham Atkins thought it was not a prophane Oath nor within the Statute of King James because it tended to the determining of a controversie And accordingly the Plaintiff had Iudgment Horton Wilson A Prohibition was prayed to stay a Suit in the Spiritual Court commenced by a Proctor for his Fees Vaughan Wyndham No Court can better judge of the Fees that have been due and usual there then themselves Most of their Fees are appointed by constitutions Provincial and they prove them by them A Proctor lately libell'd in the Spiritual Court for his Fees and amongst other things demanded a groat for every Instrument that had been read in the cause the Client pretended that he ought to have but 4 d. for all They gave Sentence for the Defendant the Plaintiff appealed and then a Prohibition was prayed in the Court of Kings Bench. The Opinion of the Court was that the Libell for his Fees was most proper for the Spiritual Court but that because the Plaintiff there demanded a customary Fee that it ought to be determin'd by Law whether such a Fee were customary or no and accordingly they granted a Prohibition in that case It is like the case of a modus for Tythes for whatever ariseth out of the custom of the Kingdom is properly determinable at Common Law But in this case they were of Opinion that the Spiritual Court ought not to be prohibited and therefore granted a Prohibition quoad some other particulars in the Libell which were of temporal cognisance but not as to the suit for Fees Wyndham said if there had been an actual Contract upon the Retainer the Plaintiff ought to have sued at Law Atkyns thought a Prohibition ought to go for the whole Fées he said had no relation to the Iurisdiction of the Spiritual Court nor to the cause in which the Proctor was retain'd No Suit ought to be suffered in the Spiritual Court when the Plaintiff has a remedy at Law as here he might in an Action upon the case for the Retainer is an implied Contract A difference about the grant of the Office of Register in a Bishops Court shall be
Limitation of Estates A man deviseth a term to one for life the remainder to another for life and if the remainder man for life die without issue of his body begotten then to a stranger whether is this a good Limitation or not 50 51 c. V. A term setled in trust with remainders to persons not in being 114 115 V. Covenant to stand seiz'd A man Covenants to stand seiz'd to the use of his eldest Son and the Heirs-males of his body remainder to the use of the Heirs-males of his own body remainder to his own right Heirs 226 237 238 Limitation of Actions What Actions between Merchants are within the Statute of Limitations and what not 70 71 268 269 The Statute of Limitations how to be pleaded 89 Action upon the Case against a Sheriff for that he levied such a sum of money at the Plaintiffs Suit and did not bring the money into Court at the day of the return of the Writ Whether is this Action within the Statute of Limitations or not 245 Livery A man chosen by a Company in London to be of the Livery and refusing to serve cannot be committed 10 Livery deins le view A woman makes a Feoffment and gives Livery within the View then she marries with the Feoffee before he enters whether has this entermarriage destroyed the operation of the Livery within the view 91 M. Mandamus A Writ of Mandamus to the Master and Fellows of a Colledge in Oxford to restore a Fellow whether it lies or not 82 83 c. Market Action upon the Case for keeping a Market in prejudice of the Plaintiffs Market does well lie although the Defendant does not keep his Market on the same day that the Plaintiff keep his 69 Melius inquirendum V. 82 Misericordia Whether ought a Misericordia or a Capiatur to be entred upon a relicta verificatione 73 Misnosmer V. Cap. Excommunic Monopoly Whether is the Patent of Incorporation to the Canary-Company a Monopoly or not 18 Monstrans de faits The Plaintiff in Quare Impedit declared upon a Grant of an Advowson to his Ancestor and says in his Declaration Hic in cur ' prolat but has it not to shew moved That forasmuch as the Defendant had gotten the Deed into his hands the Plaintiff might take advantage of a Copy thereof which appeared in an Inquisition found temp-Edw sexti and denied 266 N. Non-claim DOes not bar a Title to enter for a Condition broken 4 Non-conformists A Case upon the Oxford-Act against Non-conformist-Ministers V. 68 Non-tenure Non-tenure pleaded in abatement 281 Non-tenure when a Plea in Bar and when only in abatement 249 250 Notice When requisite and when not and whether Infancy be any excuse in such case or not 86 87 c. 300 301 302 303 c. Novel-assignment in Trespass V. 89. Nusance It is no Nusance to stop a Prospect so the light be not darkned 55 Whether is it a Nusance for a Rope-dancer to erect a Stage in a Town or City 76 V. 168 169 V. 202 O. Oath EXtra Judicial Oath V. Action upon the Case Obligation Whether or no may a second Bond be given is satisfaction of a former 221 225 Officer Investiture does not make an Officer when he is created by Patent 123 Orphan A man brought to the Bar by Habeas Corpus being committed by the Court of Aldermen for marrying a City-Orphan 77 79 80 Outlawry V. 90. Oyer Of Letters Patents V. 69 P. Pardon WHat is pardoned by a Pardon of all Offences 102 Parliament V. Habeas Corpus Partners in Trade One of them becomes Bankrupt the other shall not be charged with the whole otherwise if one of them die 45 Pasture Whether is a Custom to have a several Pasture excluding the Lord a good Custom or not 74 Pension A Parson has a Pension by Prescription How may he recover it 218 Perjury In a Court-Baron indictable 55 Physicians The calling of a Physician does not Priviledge a person that 's chosen Constable 22 Pleading An Executor pleads several Judgments in Bar but for the last he does not mention when it was enter'd nor when obtain'd and the Plea was held to be naught upon a general Demurrer 50 A Surrender into the hands of two Tenants of the Mannor out of Court secundum consuetudinem c. without saying that there was a Custom in the Mannor to warrant such a Surrender 61 62 V. A customary way of Pleading in Bristow to an Action of Debt upon a Bond. 96 Pleading to an Inditement for not repairing the High-ways 112 Pleading in an Action upon the Case upon a promise to pay money in consideration of forbearance 169 V. Tit. Prerog Possessio fratris V. 120 Praemunire An Action upon the Statute of Praemunire for impeaching in the Chancery a Judgment given in the Kings Bench whether it lies or not 59 60 Prerogative Whether may the King relinquish his own and traverse the Title shewn for the party or not and in what Cases 276 277 278 Prescription A Prescription for Toll 104 105 231 232 A. prescribes for a way over B's ground to Black-acre and drives his Beasts over B's ground to Black-acre and then to a place beyond Black-acre adjudged upon a Demurrer That he could not lawfully do so 190 191 Presentment Quasht because it does not express before whom the Sessions were held 24 Printing Whether are the Letters Patents good in Law whereby the sole-Printing of Almanacks is granted to the Company of Stationers 256 257 Priviledge An Arch-Deacon priviledged from the Office of Expenditor to the Commissioners of Sewers 282 V. Tit. Physician Prohibition To stay proceedings upon a Libel against one for teaching School denied 3 To stay a Suit for calling a woman Whore deny'd 21 22 Incumbent of a Donative cited into the Spiritual Court for marrying without Licence prays a Prohibition denied 22 Whether shall a Prohibition go to an Inferiour Court for holding Plea when the cause of Action ariseth out of their Jurisdiction till after such time as the Defendant has pleaded to the Jurisdiction and that his Plea be disallowed 63 64 81 A Prohibition prayed for that in the Spiritual Court they cited the Minister of a Donative to take a faculty to Preach from the Bishop 90 Moved for a Prohibition to the Spiritual Court because they proceeded to the Probate of a Will that contained devises of Lands as well as bequests of personal things 90 Prohibition to stay a Suit by a Proctor for his Fees denied 167 Promise How a Promise may be discharged 205 206 262 Q. Quare Impedit WHen in a Declaration in Quare Impedit the Plaintiff must alledge his Presentation tempore pacis and when he needs not 230 Process in Quare Impedit upon non-appearance of the Defendant by the Statute of Marlebridge cap. 12. 248 249 Two Judgments in a Quare Impedit 254 255 Que estate A thing that lies in grant may be claimed as appurtenant to a Mannor by a Que estate
to the second Twisd The Iury have found the Rent to be due for both years and we will now intend that he was in possession all the time for which the Rent is found to be due A Prohibition was prayed to the Ecclesiastical Court at Chester to stay procéedings upon a Libel against one William Bayles for teaching School without Licence but it was denied Redman Edolfe TRespass and Ejectment by Original in this Court Sanders moved in Arrest of Iudgment upon a fault in the Original for a bad Original is not help'd by Verdict But upon Mr. Livesey's certifying that there was no Original at all the Plaintiff had Iudgment though in his Declaration he recited the Original In an Action of Assault and Battery and Wounding the Evidence to prove a Provocation was That the Plaintiff put his hand upon his Sword and said If it were not Assize time I would not take such Language from you The question was if that were an Assault The Court agreed that it was not for he declared that he would not Assault him the Iudges being in Town and the intention as well as the act makes an Assault Therefore if one strike another upon the hand or arm or breast in discourse it s no Assault there being no intention to Assault But if one intending to Assault strike at another and miss him this is an Assault so if he hold up his hand against another and say nothing it is an Assault In the principal case the Plaintiff had Iudgment Medlicott Joyner EJectione firmae The Plaintiff at the Trial offer'd in Evidence a Copy of a Déed that was burnt by the Fire the Copy was taken by one Mr. Gardner of the Temple who said he did not examine it by the Original but he writ it and it always lay by him as a true Copy and the Court agréed to have it read the original Déed being proved to be burnt Twisd Feoffée upon Condition is disseised and a Fine levied and five years pass then the Condition is broken the Feoffor may enter for the Disseisor held the Estate subject to the Condition and so did the Conizee for he cannot be in of a better Estate then the Conizor himself was Dawe Swayne AN Action upon the Case was brought against one for suing the Plaintiff in placito debiti for 600 l. and falsly and maliciously affirming to the Bailiff of Westminster that he did owe him 600 l. whereby the Bailiff insisted upon extraordinary Bail to his Damage c. The Defendant traverses absque hoc that he did falsly and maliciously affirm to the Bailiff of Westminster that he did owe him so much Winnington moved in Arrest of Iudgment that the Action would not lie But the Plaintiff had Iudgment Keel If there had béen no cause of Action an Action upon the Case would not lie because he has a recompence by Law but here was a cause of Action If one should arrest you in an Action of 2000 l. to the intent that you should not find Bail and keep you from practice all this Term and this is found to be falsly and maliciously shall not you have an Action for this this Twisden said he knew to have been Serjeant Rolls his Opinion Morton Foxley's case is That if a man be outlaw'd in another County where he is not known an Action upon the Case will lye so an Action lies against the Sheriff if reasonable Bail be offered and refused Twisd If three men bring an Action and the Defendant put in Bail at the Suit of four they cannot declare but if he had put in Bail at the suit of one that one might declare against him Iudgment was entred as of Trinity Term for the Queen Mother and a Writ of Enquity of damages was taken out returnable this Term and she died in the Vacation-time Resolved that the first was but an interlocutory Iudgment and that the Action was abated by her death Twisd Some have questioned how you shall come to make the death of the party appear between the Verdict and the day in Bank and I have known it offer'd by Affidavit and by suggestion upon the Roll and by motion Troy an Attorney AN Information of Extortion against Troy an Attorney It was moved in arrest of Iudgment That Attorneys are not within any of the Statutes against Extortion and therefore the Information concluded ill the conclusion being contra formam Statuti Twisd The Statute of 3 Jac. cap. 7. is express against Attornies Keel I think as thus advised that Attornies are within all the Statutes of Extortion It was afterwards moved in arrest of Iudgment because the Information was insufficient in the Law for Sir Tho. Fanshawe informed that Mr. Troy being an Attorney of the Court of Common Pleas did at Maidstone cause one Collop to be impleaded for 9 s. 4 d. debt at the suit of one Dudley Sellinger c. and this was ad grave damnum of Collop c. but it is not expressed in what Court he caused him to be impleaded and that which the Defendant is charged with is not an offence for he saith that he did cause him to be impleaded and received the money the same day and perhaps he received the money after he had caused him to be impleaded Then it is not sufficiently alledged that he did illicite receive so much and Extortion ought to be particularly alledged Nor is there any Statute that an Attorney shall receive no more than his just Fées The profession of an Attorney is at Common Law and allowed by the Statute of Westm 1. cap. 26. and the Statute of 3 Jac. does not extend to this matter Non constat in this case if what he received was for Fees or no besides the suit for an offence against that Statute must be brought by the party not by Sir Tho. Fanshawe Keel If the party grieved will not sue for the penalty of treble damages given by that Statute yet the King may prosecute to turn him out of the Roll. Twisd I doubt that nor is it clear whether an Information will lie at all upon that Statute or not for the Statute does not speak of an Information Keel Whenever a Statute makes a thing criminal an Information will lie upon the Statute though not given by express words Twisd It appears here that this money was not received of his Client for he was against Collop But he ought to shew in what Court the impleading was for otherwise it might be before Mr. Major in his Chamber To which the Court agreéd So the Information was quash'd Burnet Holden THere were these two points in the case 1. If the Defendant dye after the day of Nisi prius and before the day in Bank whether the Iudgment shall be said to be given in the life of the Defendant 2. Admit it shall yet whether the Executor shall have the advantage taken from him of retaining to satisfie his own debt To the first
it was said that the Act of Parliament only takes away a Writ of Error in such case but there is no day in Bank to plead It was order'd to stand in the paper Corporation of Darby THe Corporation of the Town of Darby prescribe to have Common sans number in grosse Sanders I conceive it may be by prescription what a man may grant may be prescribed for Co. Lit. 122. is express Keel In a Forest the King may grant Common for Sheep but you cannot prescribe for it And if you may prescribe for Common sans number in grosse then you may drive all the Cattel in a Fair to the Common Sanders But the prescription is for their own Cattel only Twisd If you prescribe for common sans number appurtenant to Land you can put in no more Cattel then what is proportionable to your Land for the Land stints you in that case to a reasonable number But if you prescribe for common sans number in grosse what is it that sets any bounds in such case There was a case in Glyn's time betwéen Masselden and Stoneby where Masselden prescribed for common sans number without saying levant couchant and that being after a Verdict was held good but if it had been upon a Demurrer it would have been otherwise Livesey said he was agent for him in the case Bucknall Swinnock INdebitat Assumpsit for money received to the Plaintiffs use the Defendant pleads specially that post assumptionem praedictam there was an agreement between the Plaintiff and Defendant that the Defendant should pay the money to J. S. and he did pay it accordingly The Plaintiff demurrs Jones This plea doth not only amount to the general issue but is repugnant in it self It was put off to be argued Hall versus Wombell THe question was whether an Action of Debt would lie upon a Iudgment given by the Commissioners of Excise upon an Information before them Adjornatur Vaughan Casewell A Writ of Error was brought to reverse a Iudgment given at the grand Sessions in Wales in a Writ of Quod ei deforciat Sanders The point in Law will be this whether a Tenants vouching a Vouchee out of the line be peremptory and final or that a Respondeas ouster shall be awarded Mr. Jones In an Assise the Tenant may vouch another named in the Writ 9 H. 5. 14. and so in the Com. fo 89. b. but a voucher cannot be of one not named in the Writ because it is festinum remedium In Wales they never allow foreign vouchers because they cannot bring them in If there be a Counterplea to a Voucher and that be adjudged in another Term it is always peremptory otherwise if it be determined the same Term. An Action of Trover and Conversion was brought against husband and wife and the wife arrested Twisd The wife must be discharged upon Common bail so it was done in the Lady Baltinglasse's case And where it is said in Crook that the Wife in such case shall be discharged it is to be understood that she shall be discharged upon Common bail So Livesey said the course was It was said to be the course of the Court That if an Attorney be sued time enough to give him two Rules to plead within the Term Iudgment may be given otherwise not Russell Collins AN Assumpsit was brought upon two several promises and entire damages were given Moved by Mr. Sympson in arrest of Iudgment that for one of the promises an Action will not lie It was a general indebitatus pro opere facto which was urged to be too general and uncertain But per Cur ' it is well enough as pro mercimoniis venditis pro servitio without mentioning the Goods or the Service in particular And the Plaintiff had Iudgment Dyer versus East AN Action upon the Case upon a promise for Wares that the wife took up for her wearing Apparel Polyxfen moved for a new Trial. Keel The husband must pay for the wives Apparel unless she does elope and he give notice not to trust her that is Scott Manby's case which was a hard Iudgment but we will not impeach it The Plaintiff had Iudgment Beckett Taylor DEbt upon a Bond to submit to an Award Exception was taken to the Award because the concurrence of a third person was awarded which makes it void They award that one of the parties shall discharge the other from his undertaking to pay a Debt to a third person and it was pretended that the third person being no party to the submission was not compellable to give a discharge But it was answered that he is compellable for in case the debt be paid him he is compellable in equity to give a Release to him that had undertaken to pay it Rolls 1 part 248. Giles Southwards case Mich. 1653. Judgment nisi Seventéen Serjeants being made the 4th of November a day or two after Serjeant Powis the Junior of them all coming to the Kings Bench bar the Lord Chief Iustice Keeling told him that he had something to say to him viz. That the Rings which he and the rest of the Serjeants had given weighed but 18 s. apiece whereas Fortescue in his book de laudibus legum Angliae says That the Rings given to the Chief Iustices and to the Chief Baron ought to weigh 20 s. apiece and that he spake this not expecting a recompence but that it might not be drawn into a president and that the young Gentlemen there might take notice of it Clerke versus Rowell Phillips A Trial at bar in Ejectment for Lands settled by Sir Pexall Brockhurst The Court said a Trial against others shall not be given in Evidence in this cause And Twisden said that an Entry to deliver a Declaration in Ejectment should not work to avoid a Fine but that it must be an express Entry Vpon which last matter the Plaintiff was non-suit Redmans Case IT was moved that one Redman an Attorney of the Court who was going into Ireland might put in special Bail Twisd A Clerk of the Court cannot put in bail You have filed a Bill against him and so waved his putting in bail Keel You may remember Woolly's case that we discharged him by reason of his priviledge and took Common bail Twisd You cannot declare against him in custodia But though we cannot take bail yet we may commit him and then deliver him out by mainpernancy Jones If he be in Court in propria persona you cannot procéed against his bail The Court agréed that the Attorney should not put in bail Grafton GRafton one of the Company of Drapers was brought by Habeas Corpus In the Return the cause of his Imprisonment was alledged to be for that being chosen of the Livery he refused to serve Per Cur ' they might have fined him and have brought an Action of Debt for the sum but they could nor imprison him Keel The Court of Aldermen may imprison a
neither Keeling If an Infant let you a House shall he not have an Action against you for the Rent Twisd I have known an Action upon the case brought by an Infant upon a promise to pay so much money in consideration that he would permit the Defendant to enjoy such a House it was long insisted upon that this was not a good consideration because not reciprocal for the Infant might avoid his promise if an Action were grounded upon it against him but it was adjudged to be a good consideration and that the Action was maintainable And in the principal case the Court gave Iudgment for the Plaintiff Nisi c. Bear versus Bennett TWisden When a man is arrested and has lain in Prison three Terms and is discharged upon Common bail whether shall the Plaintiff ever hold the Defendant to special Bail afterward for the same cause if he begins anew Keel If he may then may a man be kept in Prison for ever at that rate At last it was agreed that if he would pay the Defendant his Costs for lying so long in prison he should have special Bail Mr. Masters moved for a Prohibition to the Spiritual Court to stay a Suit there against a man for having married his Wives Sisters Daughter alledging the Marriage to be out of the Levitical degrees Cur. Take a Prohibition and demur to it for it is a case of moment Dominus Rex versus Turnith MOved to quash an Indictment upon 5 Eliz. cap. 2. for exercising a Trade in Chesthunt in Hertfordshire not having been an Apprentice to it for seven years because the Statute says they shall proceed at the Quarter-Sessions and the word Quarter is not in the Indictment Twisden That word ought to be in And I believe the using of a Trade in a Country Village as this is is not within the Statute Morton accorded Rainesford It will be very prejudicial to Corporations not to extend the Statute to Villages Twisden I have heard all the Iudges say that they will never extend that Statute further then they needs must Obj. further That there wanted these words sc Ad tunc ibidem onerati jurati for which all the three Iudges Keeling being absent conceived it ought to be quash'd A cause was removed out of London by Habeas Corpus wherein the Plaintiff had declared against the Defendant as a feme sole Merchant and Bartue moved for a Procedendo because he said they could not declare against her here as a feme sole for that she had a Husband Jones contra The Husband may then be joyned with her for he is not beyond Sea Twisd I think a Procedendo must be granted for the cause alledged It was resolved in Langlin Brewin's case in Cro. though not reported by him that if the Wife use the same Trade that her Husband does she is not within the Custom And they are to determine the matter there whether this case be within their Custom perhaps a Victualler as this Trade is is not such a Trade as their Custom will warrant and whether it will warrant it or not is in their Iudgment A Procedendo was granted Tomlin versus Fuller A Special Action on the Case was brought for keeping a passage stopt up so that the Plaintiff could not come to cleanse his Gutter After Verdict for the Plaintiff it was moved in Arrest of Iudgment that there ought to have been a request for the opening of it Answ It s true where the Nusance is not by the party himself there must be notice before the Action brought but in this case the wrong began in the Defendants own time Twisden I know this hath been ruled where a man made a Lease of a House with free liberty of ingress c. through part of the Lessors House the Lessor notwithstanding might shut up his doors and was not bound to leave them open for his coming in at one or two of the Clock at night but he must keep good hours And must the Defendant in this case keep his Gate always open expecting him wherefore it seems he ought to have laid a request Cur. It s aided by the Verdict Twisden It is not good at the Common Law and the Defendant might well have demurred for that cause Judgment pro Querente Butler Play UPon a motion for a new Trial in a cause where the matter was upon protesting a Bill of Exchange Serj-Maynard said the protest must be on the day that the money becomes due Twisden It hath been ruled That if a Bill be denied to be paid it must be protested in a reasonable time and that 's within a Fortnight but the Debt is not lost by not doing it on the day A new Trial was denied Hughes Underwood KEeling The very Sealing of the Writ of Error is a Supersedeas to the Execution Twisd There was once a Writ of Error to remove the Record of a Iudgment between such and such but some of the parties names were left out and by my Brother Wyld's advice that Writ not removing the Record they took out Execution But the Court was of Opinion that though the Record was not removed thereby of which yet they said he was not Iudge whether it was or not yet that it so bound up the cause that they could not take out Execution It is indeed good cause to quash the Writ of Error when it comes up but Execution cannot be taken out Term. Hill 21 22 Car. II. 1669. in B. R. Jefferson Dawson IN a Scire facias upon a Recognisance in Chancery entered into by one Garraway There was a demurrer to part and issue upon part And the question was whether this Court could give Iudgment upon the demurrer Jones The Iudgment upon the demurrer must be given in Chancery The Court of Chancery cannot try an Issue and therefore it is sent hither to be tryed but with the demurrer this Court has nothing to do Indeed the books differ in case of an Issue sent hither out of Chancery whether the Iudgment shall be here or there Keilway says it ought to be given here My Lord Coke in his 4 Inst says it must be given in Chancery But none ever made it a question whether Iudgment upon a demurrer were to be given here or there V. Co. Jurisdiction of Courts fol. 80. Saunders contra When there is a demurrer upon part and Issue upon part the Record being here this Court ought to give Iudgment because there can be but one Execution Keeling If the Record come hither entirely we cannot send it back again I cannot find one Authority that the Record shall be removed from hence He cited Keilway 941. 21 H. 7. Co. 2. 12. Co. Entries 678. 24 Ed. 3. fol. 65. there it is held that Iudgment shall be given here upon a demurrer Now if it must not be given here there must be two Executions for the same thing or else they must loose half for they can
such power nay if he have Children they must be living at his death Further by these Provisoes if the Contingencies do happen he hath but a power to declare the Vses he hath no Interest in him at all Litt. Sect. 463. It is one thing to have a power or possibility of limiting an Interest another to have an Interest vested 7 Rep. 11. Moor's Reports 366. about the delivery of a Ring where they hold that if it had been to have been done with his own hand it had not been forfeited The case of Sir Edward Clere is different from ours for if a man make a feoffment to the use of his last Will or to the use of such persons as shall be appointed by his last Will in this case he remains a perfect owner of the Land But if a man makes a Conveyance with power to make Leases or to make an Estate to pay Debts he hath here no Interest but a naked power The Duke of Norfolk's case is full in the point A Conveyance to the use of himself for life the Remainder to his Son in Tail with power to revoke under Hand and Seal adjudged not forfeited and yet he had a power to declare his mind as in our case Pagett's case Moor 193 194. Keeling If this way be taken a man may commit Treason pretty cheaply Twisden Whoever hath a power of Revocation hath a power of Limitation The reason is because else the feoffées would be seized to their own Vse Sir William Shelly's case in Latch Twisden There is no difference betwixt the Duke of Norfolk's case and this only here it is under his hand writing and there under his proper hand writing Afterward Term. Pasch 23 Car. 2. 1671. the Court delivered their Opinions Hales being then Chief Iustice Morton I conceive the Iudgment in the Common-Pleas is well given As for the first point whether this Conveyance made by Sir Simon Mayn be fraudulent or not the Counsel themselves have declined it and therefore I shall say nothing to it For the second I conceive no larger Interest is forfeited then during the Life of the Father If it be objected that the Father had by this Proviso jus disponendi I answer it is true he had a power if he had been minded so to do but it was not his mind and Will Now animus hominis est ipse homo but he must not only be minded so to do but he must declare his pleasure Hobart saith if a man will create a power to himself and impose a Condition or Qualification for the Execution of it it must be observed Now here is a personal and individual power seated in the heart of a man And it seems to me a stronger case then that of the Duke of Norfolk put in Englefield's case where yet the Condition was not given to the King by the Statute of Hen. 8. There was a later case adjudged in Latch betwéen Warner and Hynde a case that walked through all the Courts in Westminster-hall there by reason of the ipso declarante it could not be forfeited Rainsford I hold it is not forfeited My reason is because the Proviso is at an end and determined for when he dyed and made no Will there 's an end of the Proviso The altering of the old Trust is to be done by Sir Simon Mayn and it is inseparable from his person nothing can be more inseparable then a mans Will Moor 193. Twisd I am of the same Opinion Hales was of the same Opinion that nothing was forfeited but during Sir Simon 's life The Proviso he said did not create a Trust but potestatem disponendi which is not a Trust He said he did not understand the difference betwéen the Duke of Norfolk's case and this Accordingly the Iudgment was affirm'd In a cause wherein one Aston was Attorney Keeling said That a man may discontinue his Action here before an Action brought in the Common-Pleas But if he do begin there and then they plead another Action depending here and then they discontinue I take it the Attorney ought to be committed for this practice Twisden When I was at the Bar Error was brought and Infancy assigned when the Man was thirty years old and the Attorney was threatned to be turned out of the Roll. Serjeant Newdigate moved for a Certiorari to remove an Indictment hither from Bedford against several Frenchmen for Robbery Keeling Will it remove the Recognisances there to appear Twisden I never knew such a motion made by any but the King's Attorney or Solicitor Rainsford There is no Indictment yet before a Iudge of Assise Keeling You may have a Certiorari but it must not be delivered till the Indictment be found and then the Iudge hath the Prosecutors there and may bind them over hither and so the Trial may be here Keel A Iury was never ordered to a view before their appearance unless in an Assise Twisd Neither shall you have it here but by consent Nosworthy versus Wyldeman THe Plaintiff declares in an Indeb Assumpsit that the Defendant was endebted to him in 50 l. for so much money received of the Plaintiff by one Thomas Buckner by the appointment and to the use of the Defendant After a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Plaintiff could not have an Action for money received by the Defendant to the use of the Defendant But because it might be money lent which the Defendant received to his own use though he was to make good the value to the Plaintiff the Court will presume after a Verdict that it appeared so to the Iury at the Trial. For where a Declaration will bear two constructions and one will make it good and the other bad the Court after a Verdict will take it in the better sense And accordingly the Plaintiff had Iudgment Willams versus Lee. AN Action of Account It was prayed that the Court would give further day for giving the Account the matter being referred to Auditors Twisden The Auditors themselves must give further day Keeling The Auditors are Iudges whether there be a voluntary delay or not If they find the parties remiss and negligent they must certifie to the Court that they will not account Roberts Mariott MOved to discontinue an Action of Debt upon a Bond. Keeling We will not favour Conditions Ruled that the other side should shew cause why they should not discontinue Buckly versus Turner ACtion upon the case upon a Promise The case was that Edward Turner Brother to the Defendant was endebted to the Plaintiff for a Quarters Rent and the Defendant in consideration that the Plaintiff mitteret prosequi praedictum Edwardum Turner so the words are in the Declaration promised to pay the money After a Verdict for the Plaintiff it was moved in Arrest of Iudgment that here is not any consideration for there is no loss to the Plaintiff in sending to prosecute c. nor any benefit but
a disadvantage to the party that owed the money besides there is an uncertainty whither or to whom he should send Twisd Mittere prosequi is well enough for the Plaintiff must be at charge in it Keeling Certainly it ought to have been omitteret and if it be so in the Office-book we will mend it Twisden This being after a Verdict if you mend it they must have a new Trial for then it becomes another promise Jones moved for Iudgment and said he found the word mitto did signifie to send forbear cease or let alone as mitte me quaeso I pray let me alone in Terence And in the Latine and English Dictionary it hath the sense of forbearing Keeling I think the consideration not good unless the word mitto will admit of that sense If it have a propriety of sense to signifie forbear in reference to things as well as persons it will be well Whereupon the Dictionary being brought it was found to bear that sense And Twisden said if a word will bear divers senses the best ought to be taken after a Verdict Court Let the Plaintiff take his Iudgment Richards Hodges DEbt upon a Bond. The Condition was to save a Parish harmless from the charge of a Bastard-child The Defendant pleaded Non damnificatus The Plaintiff replies that the Parish laid out three shillings for keeping the Child The Defendant rejoyns that he tendred the money and the Plaintiff paid it de injuria sua propria Whereupon it was demurred the question being whether this re-joynder were a departure or no from the Bar Saunders It is a good Rejoynder for in our Bar we say that the Parish is not damnified that is not damnified within the intent of the Condition If I am to save a man harmless and he will voluntarily run himself into trouble the Condition of my Bond is not broken And so our Rejoynder is pursuant to our Bar and shows that there is no such damnification as can charge us Twisden The Rejoynder is a departure as in an Action of Covenant for payment of Rent if the Defendant pleads performance and the Plaintiff reply that the Rent is unpaid for the Defendant to rejoyn that it was never demanded is a departure You should have pleaded thus viz. that non fuit damnificat till such a time and that then you offered to take care of the Child and tendred c. Iudgment for the Plaintiff Nisi c. Smith Lluellyn al. Commission of Sewers THey were brought into Court by Attachment because they proceeded to Fine a person after a Certiorari delivered Twisd Sir Anthony Mildmay was a Commissioner of Sewers and for not obeying a Certiorari was Indicted of a Praemunire and was fain to get the Kings pardon And I have known that upon an unmannerly receit of a Prohibition they have been bound to the good Behaviour Keeling When there are Informations exhibited against you and you are fined a 1000 l. a man which is less then it was in King Edward the Third's time for then a 1000 l. was a great deal more then it is now you will find what it is to disobey the Kings Writ Afterwards they appeared again and Coleman said the first Writ was only to remove Presentments the second to remove Orders and we have made two Returns the one of Presentments the other of Orders A general Writ might have had a general Return Keeling Before you file the Return let a clause of the Statute of 13 Eliz. cap. 9. be read which being done he said that by the Statute of 23 Henr. 8. no Orders of the Commissioners of Sewers are binding without the Royal Assent now this Statute makes them binding without it and enacts that they shall not be Reverst but by other Commissioners Yet it never was doubted but that this Court might question the Legality of their Orders notwithstanding And you cannot oust the Iurisdiction of this Court without particular words in Acts of Parliament There is no Iurisdiction that is uncontroulable by this Court Sir Henry Hungate's case was a famous case and we know what was done in it Morton Since the making this Statute of Eliz. were those cases in my Lord Coke's Reports adjudged concerning Chester Mills If Commissioners exceed their Iurisdiction where are such matters to be reformed but in this Court If any Court in England of an inferiour Iurisdiction exceed their bounds we can grant a Prohibition Twisd I have known it ruled in 23 Car. 1. That the Statute of 13 Eliz. cap. 9. where it is said there shall be no Supersedeas c. hath no reference to this Court but only to the Chancery But this is a Certiorari whereby the King doth command the Cause to be removed voluit that it be determined here and no where else So the Court fined them for not obeying two Certioraries but fining them that brought them 5 l. a piece Jones moved That one who was Partner with his Brother a Bankrupt being Arrested might be ordered to put in Bail for the Bankrupt as well as for himself Twisden If there are two Partners and one breaks you shall not charge the other with the whole because it is ex maleficio but if there are two Partners and one of them dye the Survivor shall be charged for the whole In this case you have admitted him no Partner by Swearing him before the Commissioners of Bankrupts So not granted Rawlin's Case MOved by Sergeant Scroggs That Rawlins having personated one Spicer in acknowledging a Iudgment that therefore the Iudgment might be set aside Twisden The Statute that makes it Felony does not provide that the Iudgment shall be vacated One Tymberly escaped with his life very narrowly for he had personated another in giving Bail but the Bail was not filed Then he moved that the Defendant had paid the Fées of the Execution which the Plaintiff ought to have done So the Court granted an Attachment against the Bayliff Taylor Wells TRover Conversion decem parium tegularum valorum Anglice of ten pair of Curtains and Valons Obj. That it is not certain what is meant by a pair whether so many two's or so many Sets and that in Web Washburn's case 1652. four pair of Hangings held not good Twisden I remember that a pair of Hangings has been held naught Trover Convers pro decem Ovibus Agnis not expressing how many Ewes and how many Lambs ruled naught Another Action of Trover de velis not saying how many held to be naught It was urged that ten pair of Curtains and Valons is certain enough for by pair shall be understood two and so there are Twenty in all If it be objected that it does not appear how many of each I answer the words ten pair shall go to both Besides it is after a Verdict and therefore ought to be made good if by any reasonable construction it may If it had been ten Sets or ten Suits then without
suffered him to go at large whither he would and at the day of Return he returned that he had his body ready Jones They have demurred to the Declaration which I conceive to be a good Declaration For take the case that there went a Latitat to the Sheriff and the Sheriff took the person upon it and let him go at large no body will deny but that an Action of Escape will lye against him and when he makes such a false Return as here that he has the body ready why will not an Action lie for a false Return and this is no new case but hath béen adjudged Moor. plac 596. 3 Cro. 460. ibid. 624. it is at the Plaintiffs Election to follow the Sheriff with Amercements or to bring his Action for the false Return And when this Action has been brought formerly they were forced to plead the Statute none ever demurred generally Twisden I remember a case in 21 Car. 1. Rot. 616. betwéen Franklyn Andrews where an Action upon the Case was brought against a Sheriff for such a false Return he pleaded the Statute and they held in that case that the Sheriff could not Return any thing else but Cepi corpus And old Hodson that sate here remembred the case of Langton Gardiner reported in 3 Cro. and said the Court did amerce the Sheriff for a bad Return but the Iudgment was given in that case for the Plaintiff because there was a Traverse aliter vel alio modo which could not be unless a false Return had been confessed and the Court ordered Iudgment to be entred for the Plaintiff for that cause In the case of Franklyn the Court held that upon Issue Not-guilty the Statute might be given in Evidence but upon a Demurrer you ought to plead the Statute and the general Demurrer cannot be help'd in this case unless you will say that it is a general Law Whelpdale's case is that the Statute must be pleaded because it is a particular Law but it concerns Extortion in all Sheriffs and the Statute of 13 Eliz. that concerns all Parsons touching Non-residency is held to be a general Law and it is not to be stirr'd now but if the point were to be adjudged again perhaps we might be of another Opinion Keeling They have relyed here upon the false Return and the general Demurrer I take to be well enough Morton Rainsford accorded wherefore Iudgment was given against the Plaintiff Lake versus King THe Plaintiff brought an Action upon the Case for publishing a Libell in which he was defamed c. the publication was in delivering several Printed Papers wherein the Plaintiff was slandered to several Members of a Committée of the House of Commons Jones It is true if a man make a complaint in a Legal way no Action lyeth against him for taking that course if it be in a competent Court But that that we say is not lawful in this case is his causing the matter to be Printed and Published agreeable to this case are the common cases of Letters if a man will write a scandalous Letter and deliver it to the party himself this is no Slander But if he acquaints a third person with it an Action will lie So here since he will publish this matter by Printing it or if he had but written it it might have been Actionable for the Members ought not to be prepossessed King versus Standish AN Action upon the Statute of Praemunire for impeaching in the Chancery a Iudgment given in the Kings-Bench The Defendant demurred Bigland for the Defendant The question is whether the Court of Chancery be meant within the Statute of 27 Ed. 3. 3. This question has béen controverted formerly but has not béen stirr'd within these 40 years last past It concerns the Chancery as it is a Court of Equity Now the Statute cannot be applyed to the Chancery as such for it was not a Court of Equity at that time and if so then must the Statute be applyed to other Courts where the gravamen then was Mr. Lambert in his Iurisdiction of Courts says of this Court that the King did at first determine Causes in Equity in person and that about 20 Ed. 3 the King going beyond Sea delegated this power to the Chancellor And then he says several Statutes were made to enlarge the Iurisdiction of this Court as 17 Rich. 2. cap. 6. c. But the Chancellor took not upon him ex Officio to determine matters in Equity till Edward the Fourth's time For till then it was done by the King in person or he delegated whom he pleased So that the Gravamen of that Statute could not be in the Chancery 2. It is not possible that the King can be disinherited in his own Courts and therefore the Statute must be understood of Courts that stand in opposition to the Kings Courts and only forreign Courts But this Court is held by the Kings Seal and the Iudgments in it are according to the Kings Conscience Thirdly It is said in the Statute that the Offenders shall have a day given them to appear before the King and his Council or in his Chancery c. and it is strange that the Chancery should give the remedy if that were one of the Courts wherein the Offence were incurred My fourth reason is from the penalty the penalty is very rare and great for they must be put out of the Kings Protection their Lands forfeited and their bodies imprison'd at the Kings pleasure The penalty is fitted well for those that draw the Kings Subjects out of the Kings Iurisdiction but so great a penalty to be inflicted for suing in the Kings Courts is not so reasonable If a man sue in the Ecclesiastical Court for a matter Temporal shall he incur a Premunire An Action upon the Case may lye when a man is mistaken in the Court in which he ought to sue but to make it a Praemunire seems not so reasonable The Vsurpations of the Bishop of Rome were the cause of the making of this Statute and all other Statutes of Praemunire 28 Ed. 3. cap. 1. 16 H. 6. cap. 5. the complaint was all along of the Bishop of Rome's Vsurpations but not a word of the Chancery Sir John Davies in his case of Praemunire tells us that all the Statutes were made upon this occasion Of all the Attainders of Praemunire there never was one for suing in the Chancery The great Objection is from these words in the Statute or which do sue in any other Court now say they this last disjunctive must be applyed to this Court and not to the Court or Courts mentioned before But I answer there were other Ecclesisiastical Courts within this Realm besides that that was a standing Court and had a constant dependance upon the Pope here and they were aimed at by this disjunctive Those Courts derived their Iurisdiction from the Court of Rome and not from the King There is an Authority in the point in
5 Ed. 4. 6. Now for Authorities I confess there are great ones against me 2 Cro. fol. 335. Heath Ridley Moor. 838. Courtney versus Glanvill My Lord Coke in his Chapter of Praemunire 22 Ed. 4. fol. 37. But the greatest Authority against me is the case of Throgmorton Finch reported by my Lord Coke in his Treatise of Pleas of the Crown Chapter Praemunire But the practice has béen contrary not one person attainted of a Praemunire for that cause In King James his time the matter was referred to the Counsel who all agreed that the Chancery was not meant within the Statute which Opinions are inrolled in Chancery And the King upon the report of their Reasons ordered the Chancellor to proceed as he had done and from that time to this I do not find that this point ever came in question And so he prayed Iudgment for the Defendant Saunders As to that objection that at the time when this Statute was made there were no proceedings in Equity I answer that granting it to be true yet there is the same mischief The proceedings in one part of the Chancery are coram Domino Rege in Cancellaria but an English Bill is directed to the Lord Keeper and decreed so that there is a difference in the proceedings of the same Court But admit that Courts of Equity are the Kings Courts yet they are aliae Curiae if they hold plea of matters out of their Iurisdiction 16 Ri. 2. cap. 5. Rolls first part 381. There is a common objection that if there were no relief in Chancery a man might be ruined for the Common Law is rigorous and adheres strictly to its rules I cannot answer this Objection better then it is answered to my hand in Dr. Stud. lib. 1. cap. 18. he cited 13 Ri. 2. num 30. Sir Robert Cotton's Records It is to be considered what is understood by being impeached Now the words of another Act will explain that viz. 4 H. 4. cap. 23. by that Act it appears that it is to draw a Iudgment in question any other way then by Writ of Error or Attaint One would think this Statute so fully penned that there were no room for an evasion There was a temporary Statute which is at large in Rastall 31 H. 6. cap. 2. in which there is this clause viz. That no matter determinable at Common Law shall be heard elsewhere A fortiori no matter determined at Common Law shall be drawn in question elsewhere He cited 22 Ed. 4. 36. Sir Moyle Finch Throgmorton 2 Inst 335. and Glanvill Courtney's case He put them also in mind of the Article against Cardinal Woolsey in Coke's Jurisdiction of Courts tit Chancery So he prayed Iudgment for the Plaintiff Keeling It is fit that this cause be adjourned into the Exchequer-chamber for the Opinions of all the Iudges to be had in it We know what heats there were betwixt my Lord Coke Ellesmere which we ought to avoid Turner Benny A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Action upon the Case wherein the Plaintiff declared that it was agréeed betwéen himself and the Defendant that the Plaintiff should surrender to the use of the Defendant certain Copy-hold Lands and that the Defendant should pay for those Lands a certain sum of money and then he sets forth that he did surrender the said Lands into the hands of two Tenants of the Manor out of Court secundum consuetudinem c. Exception The promise is to surrender generally which must be understood of a surrender to the Lord or to his Steward and the Declaration sets forth a surrender to two Tenants which is an imperfect surrender 1 Cro. 299. Keeling But in that case there are not the words secundum consuetudinem as in this case Jones Hill 22 Car. 1. Rot. 1735. betwixt Treburn Purchas two points were adjudged 1. That when there is an agréement for a surrender generally then such a particular surrender is naught 2. That the alledging of a surrender secundum consuetudinem is not sufficient but it ought to be laid that there was such a Custom within the Manor and then that according to that Custom he surrendred into c. accordingly is 3 Cro. 385. Coleman contra We do say that we were to surrender generally and then we aver that actually we did surrender secundum consuetudinem and if we had said no more it had béen well enough Then the adding into the hands of two Tenants c. I take it that it shall not hurt Besides we need not to alledge a performance because it is a mutual promise and he cited Camphugh Brathwait's case Hob. Twisden I remember the case of Treborne he was my Clyent And the reason of the Iudgment is in Combe's case 9th Rep. because the Tenants are themselves but Attornies And they compared it to this case I am bound to levy a Fine it may be done either in Court or by Commission but I must go and know of the person to whom I am bound how he will have it and he must direct me In the principal case the Iudgment was affirm'd Nisi c. Turner Davies AUdita Querela The point was this viz. an Administrator recovers damages in an Action of Trover and Conversion for Goods of the Intestate taken out of the possession of the Administrator himself then his Administration is revoked and the question is whether he shall have Execution of the Iudgment notwithstanding the revocation of his Administration Saunders I conceive he cannot for the Administration being revoked his Authority is gone Doctor Druries case in the 8th Report is plain And there is a President in the new book of Entries 89. Barrell I conceive he may take our Execution for it is not in right of his Administration he lays the Conversion in his own time and he might in this case have declared in his own name and he cited and urged the reason of Pakman's case 6th Report 1 Cro. Keeling He might bring the Action in his own name but the Goods shall be Assets If Goods come to the possession of an Administrator and his Administration be repealed he shall be charged as Executor of his own wrong now in this case the Administration being repealed shall he sue Execution to subject himself to an Action when done Twisden I think it hath béen ruled that he cannot take out Execution because his Title is taken away Iudgment per Cur. versus Defendentem Jordan Martin EXception was taken to an Avowry for a Rent-charge that the Avowant having distrained the Beasts of a Stranger for his Rent does not say that they were levant couchant Coleman The Beasts of a Stranger are not liable to a Distress unless they be levant couchant Roll. Distress 668. 672. Reignold's case Twisd Where there is a Custom for the Lord to seize the best Beast for a Heriot and the Lord does seize the
be unreasonable it ought to be locally circumscribed and confined to the City 17 Ed. 4. 7. there was an Action brought upon the Statute of Labourers for retaining one that was the Plaintiffs retained Servant the Defendant pleaded in abatement that there was no place laid where the Plaintiffs retainer was and this was held a good Plea for that if it were in another County then where the Defendant retained him it was impossible for the Defendant to take notice of a Retainer in another County No more can we take notice who is a City Orphan in the County of Kent Then they have returned a Custom to imprison generally but it should have beén that without reasonable cause shewn they might imprison and the party have liberty to shew cause to the contrary Then I conceive they have returned the Fact as defective as the Custom they say that he marryed her without their consent they ought to have said that he took her out of their custody and your Lordships will not intend that she was in their custody when she was out of the City Offley of the same side and cited 21 Ed. 3. Fitz. Guard 31. and Hob. in Moor Hussey's case 95. 3 Cro. 803. 3 Cro. 689. 1 Cro. 561. In all the cases its returned that they were Free-men of the City Mr. Solicitor North on the same side cited Day Savage's case Mr. Attorney General on the other side said that because it was impossible to give notice to all therefore ex necessitate rei they must take notice at their peril Hales The City has an Interest in the Orphan wherever the Orphan be And for notice he may enquire there is no impossibility of his coming to the knowledge whether she be an Orphan or no therefore if he takes her he takes her at his peril Twisden And for the Fine such a Fine was set in Langham's Case and adjudged good Let a Citizen of London live where he will his Children shall be Orphans Hales Some things are local in themselves some things adherent to the person and follow the person now this is an Interest which follows the person and is transmitted to his Children and the party must take notice of it at his peril Cox St. Albanes A Prohibition was prayed for to the City of London because the Defendant had offered a Plea to the Iurisdiction sworn and it had been refused Hales In transitory Actions if they will plead a matter that ariseth out of the Iurisdiction and swear it before Imparlance and it be refused a Prohibition shall go There was a case in which it was adjudged 1. That upon a bare surmise that the matter ariseth out of the Iurisdiction the Court will not grant a Prohibition 2. It must be pleaded and the Plea sworn and it must come in before Imparlance If all this were done we would grant a Prohibition here It was also agréed in that case that the party should never be received to assign for Error that it was out of the Iurisdiction but it must be pleaded Twisd So in this Court when there is a Plea to the Iurisdiction as that it is within a County Palatine they plead it before Imparlance and swear their Plea Twisden There was a Venire facias returnable coram nobis apud Westm whereas it should have béen ubicunque fuerimus c. yet because the Court was held here it was held to be good Hales I remember it Hales When in an inferiour Court the Venire facias is ad prox Cur ' it is naught because it is uncertain when the Court will be kept But if it be at such a day ad prox Cur. it is good Anonymus A Writ of Error of a Iudgment in White-chappel After the Record was read Hales said the acts of a Court ought to be in the present Tense as praeceptum est not praeceptum fuit But the acts of the party may be in the Preterperfect Tense as venit protulit hic in Cur ' quandam querelam suam And the Continuances are in the Preterperfect Tense as venerunt not veniunt But upon another Exception the Court gave time to move it again Moved for a melius inquirendum to be granted to the Coroner of Kent who had returned an Inquisition concerning the death of one that was killed within the Manor of Greenwich he had returned that he dyed of a Meagrim in his head when he was really killed with a Coach Hales A melius inquirendum is generally upon an Office post mortem and is directed to the Sheriff Twisden But this cannot be to the Sheriff In 22 Ed. 4. the Coroner must enquire only super visum corporis And if you will have a new inquiry you must quash this Indéed a new inquiry was granted in Miles Bartly's case Thurland prayed that the Court being the supreme Coroner would examine the misdemeanor of the Coroner Hales Make some Oath of his misdemeanor because he is a sworn Officer Without Oath we will not quash this Inquisition Newdigate said that in the case of Miles Bartly the inquiry was not Filed and that that was the reason why a new one was granted Hales Let the Coroner attend he must take the Evidence in writing and he should bring his Examination into Court. Daniel Appleford's Case A Writ of Mandamus was directed to the Master and Fellows of New-Colledge in Oxford to restore one Daniel Appleford a Fellow They return that the Bishop of Winchester did erect the Colledge and among other Laws by which the Colledge was to be governed they return this to be one viz. That if a Scholar or other Member of the said Colledge should commit any crime whereby scandal might arise to the Colledge and that it appeared by his own confession or full Evidence of the Fact that then he should be removed without any remedy and that Daniel Appleford a Fellow was guilty of enormous Crimes and was convicted and thereupon removed and they pray Iudgment whether this Court will proceed Jones By this conclusion they rely chiefly upon the Iurisdiction of the Court I will lay this for a ground that this Court hath Iurisdiction in Extrajudicial causes as well as Iudicial 11 Rep. Bagg's case And Appleford hath no remedy but this I will not say that he may not have an Action upon the Case but by that he will not recover the thing but damages And for an Assize if a man be a Corporation sole or head of a Corporation aggregate and be turn'd out wrongfully he may have an Assize but for a man that is but an inferiour Member of a Corporation no Assize lyeth for him because he is but a part of the body politick and doth not stand by himself but must joyn with others and as he cannot have an Assize so he cannot have an Appeal Dyer 209. 11 Rep. in Bagg's case 24 H. 8. 22. 25 H. 8. cap. 19. 4 Inst 340. by these Authorities it appears that we are without
remedy by way of Appeal It may be objected that there can be no Appeal hither because it is a spiritual Corporation Now I say this is not a spiritual Corporation as appears by the foundation and I am of Opinion that if a Corporation be all of spirituall persons yet unless there be a spiritual end it is no spiritual Corporation but a Lay-one But if it be a spiritual Corporation yet Deprivation is a temporal act Dyer 209. Another Objection may be That the Founder hath provided that there shall be no Appeal I answer the Founder cannot by his foundation exclude Legal remedies against wrong A Custom which is the strongest Foundation doth not bind a man up from his Legal remedy Litt. Sect. 212. If a man should dispose of his Estate by Will and provide therein that if any difference should arise concerning the Execution of the same that it shall be determined by such and such and no Suit commenced upon it at the Common Law this would be a vain appointment he must not erect a Iurisdiction of his own to oust the Kings Courts of theirs Coleman I conceive this is such a Colledge as no Mandamus shall go to it in any case whatsoever for it is but a private Society and hath no influence upon the publick In Ryly's Records we find that Mandamus's were only Letters to Colledges c. and there were no Iudicial Mandamus's till Bagg's case and I never knew them go but when the party had not only a Freé-hold but one that was of publick concern Now a Fellowship of a Colledge is for a private design only to study and if you grant a Mandamus in this case whither will it go at last Then the Foundation was to a spiritual intent and what is committed to the Ecclesiastical Power and Iurisdiction this Court doth preserve Ecclesiastical men hold in Eleemosynam Litt. Sect. 136. Linwood de Religiosis domibus When Colledges are founded under rule and order it doth give the Bishop Iurisdiction so that this Court will not enquire into this matter no more than it will enquire into causes of Deprivation and matters relating to the Institution of Clergy-men It has béen denied that a Fellow of a Colledge can bring an Assize But as a Prebend hath two capacities sole and aggregate so a Fellow is a Member of a Corporation aggregate and hath a sole capacity in respect of his Fellowship For a Church-Warden who is admitted according to the course of the Ecclesiastical Law a Mandamus will not lie Vide 6 H. 7. 10. Twisden In one Patrick's case we all held that a Colledge was a Temporal Corporation Hales There is a reason given in Dyer why a Mandamus will not lye in the case there viz. because it was prayed to be awarded to a Temporal Corporation Coleman It doth appear by the Return that the Founder hath appointed a Visitor now to him there may be an Appeal and we have returned the Sentence of the Visitor and need not return the cause of the Sentence And for Books I do oppose Rolls tit Prerogative Huntly's case 209. to Specott's case and Ken's case in the Reports In our case the party has a remedy elsewhere and therefore he shall not come hither If a Mandamus shall lie for a Mastership Fellowship or Schollarship it will in time come to lie for turning out of Commons and what a combustion will this raise then The Niceties of Husband and Wife were said by the Iudges in Scott's case to be proper for the Spiritual Court and not fit to be brought before the Iudges Hales That a Mandamus lies I will not positively deny but whether is it fit for us to proceed after this Return It must be taken for granted that it is not a spiritual Corporation if it were you ought to Appeal to the Visitor and then to the Delegates It is a private Society as an Inns of Court and I confess that Mandamus's do generally respect matters of publick concern I never heard of a Mandamus for a Monk If there be a Iurisdiction in the Visitor and he hath determined the matter how will you get over that Sentence The Chancellor is Visitor of all the Kings Frée-Chappels and the 2 H. 5. doth make him so of all Colledges of the Kings Foundation Suppose a Temporal Court over which we have Iurisdiction do give Iudgment in Assize to recover an Office so long as that Iudgment stands in force do you think that we will grant a Mandamus to restore him against whom the Iudgment is given Twisden In all Eleemosinary things there are Visitors appointed either by Law or by Creation of the party Hales The Frée-Chappels of Windsor and Wolverhampton are not of Spiritual Iurisdiction Hales At this rate we should examine all Deprivations Suspensions Elections c. and by the 13 of the Qu. the Laws of the Vniversity are confirmed Hales We ought not to grant a Mandamus where there is a Visitor but in this case the Visitor hath given Sentence Mors Sluce A Trial at Bar. An Action upon the case was brought against a Master of a Ship who had taken in Goods to Transport them beyond Sea for that he so negligently kept them that they were stolen away whilst the Ship lay in the River of Thames Maynard insisted upon it that the Master was not chargeable say they he is chargeable whilest he is here but when he is gone out of the Realm he is not chargeable though the Goods be taken from him Which distinction he said had no foundation in Law Hales It will lye upon you that are for the Defendants to shew a difference betwixt a Carrier and a Master of a Ship And it will lye upon you that are for the Plaintiff to shew why the Master of a Ship should be charged for a Robbery committed within the Realm and not for a Pyracy committed at Sea It was urged for the Plaintiff that a Hoy-man and Ferry-man are bound to answer and why not the Master of a Ship The Defendant proved that there was no carelesness nor negligent default in him Maynard He is not chargeable if there be no negligence in him because he is but a Servant the owner takes the Freight Hales He is Exercitor navis If we should let loose the Master the Merchant would not be secure And if we should be too quick upon him it might discourage all Masters so that the consequence of this case is great But the Iury gave a Verdict for the Defendant the Court for the reasons aforesaid inclining that way Porter Fry EJectione firmae A special Verdict The case was A man deviseth to A. for life the Remainder to one and the Heirs of his body upon condition That if he marry without consent of such and such or dye without Heirs of the body of his Mother that then the Estate shall go to another and his Heirs He marries without their consent and he in the Remainder
take notice that he is a Bankrupt any Execution may be stopped at that rate by alledging that there is a Commission of Bankrupts out against the Plaintiff If he be a Bankrupt you must take out a special Scire facias and try the matter whether he be a Bankrupt or not Which Jones said they would do and the Court granted Twisden If a Mariner or Ship-Carpenter run away he loses his wages due which Hales granted Henry L. Peterborough vers John L. Mordant A Trial at Bar upon an Issue out of the Chancery whether Henry Lord Peterborough had only an Estate for Life or was seized in Fee-tail The Lord Peterborough's Counsel alledged that there was a settlement made by his Father 9 Car. 1. whereby he had an Estate in Tail which he never understood till within these three years but he had claimed hitherto under a Settlement made 16 Car. 1. And to prove a Settlement made 9 Car. 1. he produced a Witness who said that he being to purchase an Estate from my Lord the Father one Mr. Nicholls who was then of Counsel to my Lord gave him a Copy of such a Deed to shew what title my Lord had But being asked whether he did see the very Deed and compare it with that Copy he answered in the negative whereupon the Court would not allow his Testimony to be a sufficient Evidence of the Deed and so the Verdict was for my Lord Mordant Cole Forth A Trial at Bar directed out of Chancery upon this Issue whether Wast or no Wast Hales By protestation I try this cause remembring the Statute of 4 Henr. 4. And the Statute was read whereby it is Enacted That no Iudgment given in any of the Kings Courts should be called in question till it were reverst by Writ of Error or Attaint He said this cause had been tried in London and in a Writ of Error in Parliament the Iudgment affirmed Now they go into the Chancery and we must try the cause over again and the same point A Lease was made by Hilliard to Green in the year 1651. afterwards he deviseth the Reversion to Cole and Forth gets an under-Lease from Green of the premisses being a Brew-house Forth pulls it down and builds the ground into Tenements Hales The question is whether this be Wast or no and if it be Wast at Law it is so in Equity To pull down a House is Wast but if the Tenant build it up again before an Action brought he may plead that specially Twisden I think the Books are pro and con whether the building of a new House be Wast or not Hales If you pull down a Malt-mill and build a Corn-mill that is Wast Then the Counsel urged that it could not be repaired without pulling it down Twisden That should have been pleaded specially Hales I hope the Chancery will not Repeal an Act of Parliament Wast in the House is Wast in the Curtelage and Wast in the Hall is Wast in the whole House So the Iury gave a Verdict for the Plaintiff and gave him 120 l. damages Term. Mich. 25 Car. II. 1673. in B. R. AN Action of Debt was brought upon a Bond in an inferiour Court the Defendant cognovit actionem petit quod inquiratur per patriam de debito This pleading came in question in the Kings Bench upon a Writ of Error but was maintain'd by the Custom of the place where c. Hales said it was a good Custom for perhaps the Defendant has paid all the Debt but 10 l. and this course prevents a Suit in Chancery And it were well if it were established by Act of Parliament at the Common Law Wild. That Custom is at Bristow Randall versus Jenkins 24 Car. 2. Rot. 311. REplevin The Defendant made Conusance as Bayliff to William Jenkins for a Rent-charge granted out of Gavel-kind Lands to a man and his Heirs The question was whether this Rent should go to the Heir at Common Law or should be partible amongst all the Sons Hardres It shall go to the eldest Son as Heir at Law for I conceive it is by reason of a Custom time out of mind used that Lands in Kent are partible amongst the Males Lamb. Perambulat of Kent 543. Now this being a thing newly created it wants length of time to make it descendible by Custom 9 H. 7. 24. A feoffment in Fee is made of Gavel-kind Lands upon Condition the Condition shall go to the Heirs at Common Law and not according to the descent of the Land Co. Litt. 376. If a warranty be annex'd to such Lands it shall descend only upon the eldest Son Now this Rent-charge being a thing contrary to common right and de novo created is not apportionable Litt. Sect. 222. 224. it is not a part of the Land for if a man levy a Fine of the Land it will not extinguish his Rent unless by agreément betwixt the parties 4 Edw. 3. 32. Bro. tit Customs 58. if there be a Custom in a particular place concerning Dower it will not extend to a Rent-charge Fitz. Dower 58. Co. Litt. 12. Fitz. Avowry 207. 5 Edw. 4. 7. there is no occasion in this case to make the Rent descendible to all for the Land remains partible amongst the Males according to the Custom And why a Rent should go so to the prejudice of the Heir I know not 14 H. 88. it is said that a Rent is a different and distinct thing from the Land Then the language of the Law speaks for general Heirs who shall not be disinherited by construction The grand Objection is whether the Rent shall not follow the nature of the Land 27 H. 8. 4. Fitzherb said he knew four Authorities that it should Fitz. Avowry 150. As for his first case I say that Rent amongst Parceners is of another nature than this for that is distreynable of Common right As for the second I say the rule of it holds only in cases of Proceedings and Trials which is not applicable to his Custom His third case is that if two Coparceners make a feoffment rendring Rent and one dies the Rent shall not survive To this I find no answer given Litt. Sect. 585. is further objected where it is said that if Land be deviseable by Custom a Rent out of such Lands may be devised by the same Custom but Authorities clash in this point He cited farther these books viz. Lamb. Peramb of Kent and 14 H. 8. 7 8. 21 H. 6. 11. Noy Randall Roberts case 51. Den. cont I conceive this Rent shall descend to all the Brothers for it is of the quality of the Land and part of the Land it is contained in the bowels of the Land and is of the same nature with it 22 Ass 78. which I take to be a direct Authority as well as an instance Co. Lit. 132. ibid 111. In some Boroughs a man might have devised his Land by Custom and in those places he might have devised a Rent
Court and the Sheriff let him go into the Country it is an escape And though he be not bound to bring him the direct way because he may be rescued yet he ought not to carry him round about a great way for the accommodation of the party if he doth it is an Escape but by this Evidence you let him go back threescore miles to which there can be no answer An Habeas Corpus retornable immediate is not fixt to an hour but to a convenient time They answered that he went back to carry back some Writings Counsel Here is an escape of one of the parties who dies before the Action brought whereby the whole charge is survived to the other before the Action brought and whether this shall purge the Escape is the question or how far it shall purge it Wild. Before you brought your Action the Debt is gone as to the Escape Hales We are made the Engines of doing all the mischief if this shall go unpunished being by colour of an Habeas Corpus So the Iury brought in a Verdict for the Plaintiff who declared in Debt for 6200 l. Greene versus Proude A Trial at Bar The question whether a Will or no Will The Plaintiff produced a Deed indented made between two parties the Man and his Son and the Father did agree to give the Son so much and the Son did agree to pay such and such Debts and Sums of money And there were some particular expressions resembling the form of a Will as that he was sick of body and did give all his Goods and Chattels c. but the Writing was both Sealed and delivered as a Deed And they gave evidence that he intended it for his last Will which the Court said was a good proof of his Will Then the Defendant setting up an Entail the Plaintiff exhibited an Exemplification of a Recovery in the Marquess of Winchesters Court in ancient demesne The other side objected that they did not prove it a true Copy But because it was ancient the Court said they should not be so strict upon the Evidence of it for the other side said the Court Rolls were burned in Baseing-house in the time of the Wars Hales I remember a case where one had gotten a presentation to the Parsonage of Gosnall in Lincoln-shire and brought a Quare Impedit and the Defendant pleaded an Appropriation there was no Licence of Appropriation produced but because it was ancient the Court would intend it Then they objected that they ought to prove seisin in the Tenant to the Praecipe Hales It being an ancient Recovery we will not put them to prove that He said the Mayor of Bristol had offered in evidence an Exemplification of a Recovery under the Town Seal of Houses in Bristol the Records being burned and that Exemplification was allowed for Evidence Hales If Tenant in Tail accept a Fine come ceo c. this doth not not alter his Estate If Tenant for life accept of a Fine Sur conusance c. he doth forfeit his Estate but it doth not alter the Estate for life Objection The Recovery is of Land in Kingscleare whereas the Land claimed is in a particular Ville called And the Vills are several and there are distinct Courts in every Ville Hales There are several Tythings of Dale Sale and Downe there is a Tythingman in every particular place but the Constable of Dale goes through all these may go for several Vills or one Vill There may be a Mannor that hath several little Mannors within it wherein are held several Courts for the ease of the Tenants but all but one Mannor And a Writ of Right close is Quod plenam rectam c. and runs to the Bayliff of the Mannor and may extend to the Precinct of the whole Mannor as the Mannor of Barton hath several little Mannors under it yet all within the Mannor Hales Where there is a Writ of Right close in ancient demesne it is not like a demand to a Sheriff here where he hath his direction for so many Acres Maynard But then he must demand it in the particular Ville where it is Hales If a Praecipe quod reddat be of Land in a Parish where it must be in a Ville there may be exception to the Writ but if he recovers it is good for now the time is past And so where it is infra manerium if he recovers it is good Browne versus AN Action brought in Canterbury Town The Defendant removes it by Habeas Corpus Then the Plaintiff declares here It was moved that it might be tried in some other County because the Iudges came there so seldom Court Let them shew cause why they should not consent and if they will plead Nil debet the Plaintiff will be willing to let them give any thing in Evidence And Simpson said it was the Opinion of all the Iudges that upon Nil debet pleaded Entry and Suspension may be given in Evidence which the Court did not deny So the Court ordered the other side to shew cause why they should not consent One Hillyard an Attorney sued for his Fees in this Court in the Court at Bristol But the Court said an Attorney ought not to wave this Court A motion was made by Sir William Jones for the Lord Mayor Starling See Bushel's case reported in Vaughan's Reports and the Recorder Howell One Bushell brought an Action against them for False Imprisonment And because the plea was long he prayed he might have time to plead Hales I speak my mind plainly that an Action will not lye for a Certiorari and an Habeas Corpus whereby the body and proceédings are removed hither are in the nature of a Writ of Error And in case of an erroneous Iudgmene given by a Iudge which is reverst by a Writ of Error shall the party have an Action of False Imprisonment against the Iudge No nor against the Officer neither The Habeas Corpus and Writ of Error though it doth make void the Iudgment it doth not make the awarding of the Process void to that purpose and the matter was done in a course of Iustice They will have but a cold business of it An Habeas Corpus and Certiorari is a Writ of right the highest Writ the party can bring So day was given to shew cause Lord Tenham versus Mullins A Trial at Bar about a fraudulent Deed. Hales There are thrée things to be considered Fraud Consideration and Bona fide Now the Bona fide is opposite to Fraud I remember a case in Twine's case If the Son be dissolute and the Father with advice of Friends doth settle things so that he shall not spend all though here be not a consideration of money yet it is no fraudulent Deed and a Deed may be voluntary and yet not fraudulent otherwise most of the Settlements in England would be avoided and so said Twisden Blackburne versus Graves TRover for 100 Loads of Wood Not-guilty
receive the bodies of James Earl of Salisbury Anthony Earl of Shaftsbury and Philip Lord Wharton Members of this House and keep them in safe custody within the said Tower during his Majesties pleasure and the pleasure of this House for their high Contempt committed against this House And this shall be a sufficient Warrant on that behalf To the Constable c. John Browne Cler ' Parl ' The Earl of Shaftsbury's Counsel prayed that the Retorn might be Filed and it was so And Friday following appointed for the debating of the sufficiency of the Retorn and in the mean time directions were given to his Counsel to attend the Iudges and the Attorny-General with their Exceptions to the Retorn and my Lord was remanded till that day And it was said that though the Retorn was Field the Court could remand or commit him to the Marshal at their Election And on Friday the Earl was brought into Court again and his Counsel argued the insufficiency of the Retorn Williams said That this cause was of great consequence in regard the King was touched in his Prerogative The Subject in his Liberty and this Court in its Iurisdiction The cause of his Commitment which is retorned is not sufficient for the general allegation of high Contempts is too uncertain for the Court cannot judge of the Contempt if it doth not appear in what act it is Secondly It is not shewed where the Contempt was committed and in favour of Liverty it shall be intended they were committed out of the House of Peers Thirdly The time is uncertain so that peradventure it was before the last Act of general Pardon 1 Roll 192 193. and 219. Russells case Fourthly It doth not appear whether this Commitment were on a Conviction or an Accusation only It cannot be denied but that the Retorn of such Commitment by any other Court would be too general and uncertain Moore 839. Astwick was bailed on a Retorn Quod commissus fuit per mandatum Ni. Bacon Mil. Domini Custodis magni Sigilli Angliae virtute cujusdam Contempt ' in Curia Cancellariae fact ' and in that book it appears that divers other persons were bailed on such general Retorns and the cases have been lately affirmed in Bushells case repeated by the Lord Chief Iustice Vaughan where it is expresly said that on such Commitment and Retorns being too general and uncertain the Court cannot believe in an implicite manner that in truth the Commitment was for causes particular and sufficient Vaughans Rep. 14. accord 2 Inst 52 53 55. and 1 Roll 218. And the Commitment of the Iurors was for acquitting Pen and Mead contra plenam manifestam Evidentiam and it was resolved to be too general for the Evidence ought to appear as certain to the Iudge of the Retorn as it appeared before the Iudge authorized to Commit Russells case 137. Now this Commitment being by the House of Peers will make no difference for in all cases where a matter comes in Iudgment before this Court let the question be of what nature it will the Court is obliged to declare the Law and that without distinction whether the question began in Parliament or no. In the case of Sir George Binion in C. B. there was a long debate whether an Original might be Filed against a Member of Parliament during the time of priviledge and it was urged that it being during the Sessions of Parliament the determination of the question did belong to the Parliament But it was resolved an Original might be Filed and Bridgman then being Chief Iustice said That the Court was obliged to declare the Law in all cases that come in Iudgment before them Hill 24 E. 4. Rot. 4. 7. 10. in Scacc ' in Debt by Rivers versus Cousin The Defendant pleads he was a Servant to a Member of Parliament and ideo capi seu arrest ' non debet and the Plaintiff prays Iudgment and quia videtur Baronibus quod tale habetur privilegium quod magnates c. et eorum familiares capi seu arrestari non debent Sed nullum habetur privilegium quod non debent implacitari Ideo respondeat oustr ' So in Treymiards case a question of priviledge was determined in this Court Dyer 60. In the 14 E. 3. in the case of Sir John and Sir Geoffrey Staunton which was cited in the case of the Earl of Clarendon and is entred in the Lords Iournal an Action of Waste depended between them in the Common-Pleas and the Court was divided and the Record was certified into the House of Parliament and they gave direction that the Iudgment should be entred for the Plaintiff Afterwards in a Writ of Error brought in this Court that Iudgment was reversed notwithstanding the Objection That it was given by Order of the House of Lords for the Court was obliged to proceed according to the Law in a matter which was before them in point of Iudgment The construction of all Acts of Parliament is given to the Courts at Westminster And accordingly they have adjudged of the Validity of Acts of Parliament They have searched the Rolls of Parliament Hob. 109. Lord Hudsons case They have determined whether the Iournals be a Record Hob. 110. When a point comes before them in Iudgment they are not foreclosed by any Act of the Lords If it appears that an Act of Parliament was made by the King and Lords without the Commons that is Felo de se and the Courts of Westminster do adjudge it void 4 H. 7. 18. Hob. 111. and accordingly they ought to do If this Retorn contains in it that which is fatal to it self it must stand or fall thereby It hath been a question often resolved in this Court when a Writ of Error in Parliament shall be a Supersedeas And this Court hath determined what shall be said to be a Session of Parliament 1 Roll 29. and if the Law were otherwise there would be a failour of Iustice If the Parliament were Dissolved there can be no question but the Prisoner should be discharged on a Habeas Corpas and yet then the Court must examine the cause of his Commitment and by consequence a matter Parliamentary And the Court may now have cognisance of the matter as clearly as when the Parliament is Dissolved The party would be without remedy for his Liberty if he could not find it here for it is not sufficient for him to procure the Lords to determine their pleasure for his Imprisonment for before his enlargement he must obtain the pleasure of the King to be determined and that ought to be in this Court and therefore the Prisoner ought first to resort hither Let us suppose for it doth not appear on the Retorn and the Court ought not to enquire of any matter out of it that a supposed contempt was a thing done out of the House it would be hard for this Court to remand him Suppose he were committed to a Forreign prison during the
pleasure of the Lords no doubt that would have been an illegal Commitment against Magna Charta and the Petition of Right There the Commitment had been expresly illegal and it may be this Commitment is no less For if it had been expresly shewn and he be remanded he is committed by this Court who are to answer for his Imprisonment But secondly The duration of the Imprisonment during the pleasure of the King and of the House is illegal and uncertain for since it ought to determine in two Courts it can have no certain period A Commitment until he shall be discharged by the Courts of Kings-Bench and Common-Pleas is illegal for the Prisoner cannot apply himself in such manner as to obtain a discharge If a man be committed till further Order he is bailable presently for that imports till he shall be delivered by due course of Law and if this Commitment have not that sense it is illegal for the pleasure of the King is that which shall be determined according to Law in his Courts as where the Statute of Westm ' 1. cap. 15. declares that he is not replevisable who is taken by command of the King it ought to extend to an extrajudicial command not in his Courts of Iustice to which all matters of Iudicature are delegated and distributed 2 Inst 186 187. Wallop to the same purpose he cited Bushells case Vaughan's Rep. 137. that the general Retorn for high Contempts was not sufficient and the Court that made the Commitment in this case makes no difference for otherwise one may be imprisoned by the House of Peers unjustly for a matter relievable here and yet shall be out of all relief by such a Retorn for upon a supposition that this Court ought not to meddle where the person is committed by the Peers then any person at any time and for any cause is to be subject to perpetual Imprisonment at the pleasure of the Lords But the Law is otherwise for the House of Lords is the supream Court yet their Iurisdiction is limited by the Common and Statute Law and their excesses are examinable in this Court for there is great difference betwéen the errors and excesses of a Court betwéen an erroneous proceéding and a proceeding without Iurisdiction which is void and a meer nullity 4 H. 7. 18. In the Parliament the King would have one Attaint of Treason and lose his Lands and the Lords assented but nothing was said of the Commons wherefore all the Iustices held that it was no Act and he was restored to his Land and without doubt in the same case if the party had been imprisoned the Iustices must have made the like resolution that he ought to have been discharged It is a Sollecism that a man shall be imprisoned by a limited Iurisdiction and it shall not be examinable whether the cause were within their Iurisdiction or no. If the Lords without the Commons should grant a Tax and one that refused to pay it should be imprisoned the Tax is void but by a general Commitment the party shall be remediless So if the Lords shall award a Capias for Treason or Felony By these instances it appears that their Iurisdiction was restrained by the Common Law and it is likewise restrained by divers Acts of Parliament 1 H. 4. cap. 14. No Appeals shall be made or any way pursued in Parliament And when a Statute is made a power is implicitely given to this Court by the fundamental constitution which makes the Iudges Expositors of Acts of Parliament And peradventure if all this case appeared upon the Retorn this might be a case in which they were restrained by the Statute 4 H. 8. cap. 8. That all Suits Accusements Condemnations Punishments Corrections c. at any time from henceforth to be put or had upon any Member for any Bill speaking or reasoning of any matters concerning the Parliament to be communed or treated of shall be utterly void and of none effect Now it doth not appear but this is a correction or punishment imposed upon the Earl contrary to the Statute There is no question made now of the power of the Lords but it is only urged that it is necessary for them to declare by virtue of what power they proceed otherwise the Liberty of every Englishman shall be subject to the Lords whereof they may deprive any of them against an Act of Parliament but no usage can justifie such a proceeding Ellismeres case of the Post-nati 19. The Duke of Suffolk was impeached by the Commons of High Treason and Misdemeanors the Lords were in doubt whether they would proceed on such general Impeachment to imprison the Duke And the advice of the Iudges being demanded and their resolutions given in the negative the Lords were satisfied This case is mentioned with design to shew the respect given to the Iudges and that the Iudges have determined the highest matters in Parliament At a conference between the Lords and Commons 3 Aprilis Car. 1. concerning the Rights and Priviledges of the Subject It was declared and agreed that no Freeman ought to be restrained or committed by command of the King or Privy-Council or any other in which the House of Lords are included unless some cause of the Commitment Restraint or Deteynor be set forth for which by Law he ought to be committed c. Now if the King who is the Head of the Parliament or his Privy Council which is the Court of State ought therefore to proceed in a legal manner this solemn resolution ought to end all Debates of this matter It is true 1 Roll 129. in Russells case Coke is of Opinion that the Privy-Council may commit without shewing cause but in his more mature age he was of another Opinion And accordingly the Law is declared in the Petition of Right and no inconvenience will ensue to the Lords by making their Warrants more certain Smith argued to the same purpose and said That a Iudge cannot make a Iudgment unless the Fact appears to him on a Habeas Corpus the Iudge can only take notice of the Fact retorned It is lawful for any Subject that finds himself agrieved by any Sentence or Iudgment to Petition the King in an humble manner for Redress And where the Subject is restrained of his liberty the proper place for him to apply himself to is this Court which hath the supreme power as to this purpose over all other Courts and an Habeas Corpus issuing here the King ought to have an accompt of his Subjects Roll tit Habeas Corp. 69. Wetherlies case And also the Commitment was by the Lords yet if it be illegal this Court is obliged to discharge the Prisoner as well as if he had been illegally imprisoned by any other Court The House of Peers is an high Court but the Kings-Bench hath ever been entrusted with the Liberty of the Subject and if it were otherwise in case of Imprisonment by the Peers the power of the King were
this whole Court in the case of Barnadiston and Soames that the Action for the double Retorn could not be brought in this Court before the Parliament had determined the right of the Election lest there should be a difference between the Iudgments of the two Courts When a Iudgment of the Lords comes into this Court though it be of the reversal of a Iudgment of this Court this Court is obliged to execute it but the Iudgment was never examined or corrected here In the case of my Lord Hollis it was resolved that this Court hath no Iurisdiction of a misdemeanour commited in the Parliament when the Parliament is determined the Iudges are Expositors of the Acts and are intrusted with the lives liberties and fortunes of the Subjects And if the Sessions were determined the Earl might apply himself to this Court for the Subject shall not be without place where he may resort for the recovery of his liberty but this Session is not determined For the most part the Royal Assent is given the last day of Parliament as saith Plow Partridges case Yet the giving of the Royal Assent doth not make it the last day of the Parliament without a subsequent Dissolution or Prorogation And the Court Iudicially takes notice of Prorogations or Adjournments of Parliament Cro. Jac. 111. Ford versus Hunter And by consequence by the last Adjournment no Order is discontinued but remains as if the Parliament were actually assembled Cro. Jac. 342. Sir Charles Heydon's case so that the Earl ought to apply himself to the Lords who are his proper Iudges It ought to be observed that these Attempts are primae Impressionis and though Imprisonments for Contempts have been frequent by the one and the other House till now no person ever sought enlargement here The Court was obliged in Iustice to grant the Habeas Corpus but when the whole matter being disclosed it appears upon the Return that the case belongs ad aliud examen they ought to remand the party As to the limitation of the Imprisonment the King may determine his pleasure by Pardon under the Great Seal or Warrant for his discharge under the Privy Seal as in the case of Reniger Fogassa Plow 20. As to the Exception that no Commitment is returned the Constable can only shew what concerns himself which is the Warrant to him directed and the Writ doth not require him to return any thing else As to the Exception that he is otherwise named in the Commitment then in the Writ the Writ requires the body of Anthony Earl of Shaftesbury quocunque nomine Censeatur in the Commitment The Court delivered their Opinion and first Sir Thomas Jones Justice said such a Retorn made by an ordinary Court of Iustice would have been ill and uncertain but the case is different when it comes from this high Court to which so great respect hath been paid by our Predecessors that they deferred the determination of doubts conceived in an Act of Parliament until they had received the advice of the Lords in Parliament But now instead thereof it is demanded of us to comptroll the Iudgment of all the Peers given on a Member of their own House and during the continuance of the Session The cases where the Courts of Westminster have taken cognizance of Priviledge differ from this case for in those it was only an incident to a case before them which was of their cognizance but the direct point of the matter now is the Iudgment of the Lords The course of all Courts ought to be considered for that is the Law of the Court Lane's case 2 Rep. And it hath not been affirmed that the usage of the House of Lords hath been to express the matter more punctually on Commitments for Contempts And therefore I shall take it to be according to the course of Parliament 4 Inst 50. it is said that the Iudges are Assistants to the Lords to inform them of the Common Law but they ought not to judge of any Law Custom or usage of Parliament The objection as to the continuance of the Imprisonment hath received a plain answer for it shall be determined by the pleasure of the King or of the Lords and if it were otherwise yet the King could pardon the Contempt under the Great Seal or discharge the Imprisonment under the Privy Seal I shall not say what would be the consequence as to this Imprisonment if the Session were determined for that is not the present case but as the case is this Court can neither Bail nor discharge the Earl Wyld Justice The Retorn no doubt is illegal but the question is on a point of Iurisdiction whether it may be examined here this Court cannot intermeddle with the transactions of the high Court of Peers in Parliament during the Session which is not determined and therefore the certainty or uncertainty of the Retorn is not material for it is not examinable here but if the Session had béen determined I should be of Opinion that he ought to be discharged Rainsford Chief Justice This Court hath no Iurisdiction of the cause and therefore the form of the Retorn is not considerable we ought not to extend our Iurisdiction beyond its due limits and the Actions of our Predecessors will not warrant us in such Attempts The consequence would be very mischievous if this Court should deliver the Members of the Houses of Peers and Commons who are committed for thereby the business of the Parliament may be retarded for perhaps the Commitment was for evil behaviour or undecent Reflections on the Members to the disturbance of the affairs of Parliament The Commitment in this case is not for safe custody but he is in Execution on the Iudgment given by the Lords for the Contempt and therefore if he be bailed he will be delivered out of Execution because for a Contempt in facie Curiae there is no other Iudgment or Execution This Court hath no Iurisdiction of the matter and therefore he ought to be remanded And I deliver no Opinion if it would be otherwise in case of Prorogation Twisden Justice was absent but he desired Justice Jones to declare that his Opinion was that the party ought to be remanded And so he was remanded by the Court. Term. Trin. 26 Car. II. 1674. in B. R. Pybus versus Mitford ante 121. THis case having been several times argued at the Bar received Iudgment this Term. The case was Michael Mitford was seised of the Lands in question in Fee and had Issue by his second wife Ralph Mitford and 23. Jan ' 21 Jac. by Indenture made betwéen the said Michael of the one part and Sir Ralph Dalivell and others of the other part he covenanted to stand immediately seised after the date of the said Indenture amongst others of the Lands in question by these words viz. To the use of the Heirs Males of the said Michael Mitford begotten or to be begotten on the body of Jane his wife the
tried at Common Law though the Subjectum circa quod be Spiritual 2 Rolls 285. placito 45. 2 Rolls 283. Wadworth Andrewes Shall a six-Clark prefer a Bill in Equity for his Fees But a Prohibition was granted quoad c. Glever versus Hynde alios GLever brought an Action of Trespass of Assault and Battery against Elizabeth Hynde and six others for that they at York-Castle in the County of York him the said Plaintiff with force and arms did Assault beat and evil entreat to his damage of 100 l. The Defendants plead to the Vi armis not-guilty to the Assault beating and evil entreating they say that at such a place in the County of Lancaster one _____ Jackson a Curate was performing the Rites and Funeral obsequies according to the usage of the Church of England over the body of _____ there lying dead and ready to be buried and that then and there the Plaintiff did maliciously disturb him that they the Defendants required him to desist and because he would not that they to remove him and for the preventing of further disturbance molliter ei manus imposuerunt c. quae est eadem transgressio absque hoc that they were guilty of any Assault c. within the County of York or any where else extra Comitatum Lancastriae The Plaintiff demurs Turner pro Querente The Defendants do not show that they had any Authority to lay hands on the Plaintiff as that they were Constables Church-wardens or any Officers nor do they justifie by the Authority of any that were If they had pleaded that they laid hands on him to carry him before a Iustice of Peace perhaps it might have alter'd the case The Plaintiff here if he be faulty is lyable to Ecclesiastical Censure and the Statute of Ph. Ma. ann 1. cap. 3. provides a remedy in such cases Jones contra If the Statute of Ph. Ma. did extend to this case yet it does not restrain other ways that the Law allows to punish the Plaintiff or keep him quiet Our Saviour himself has given us a President he whipt buyers and sellers out of the Temple which act of buying and selling was not so great an impiety as to disturb the worship of God in the very act and exercise of it Court The St. of 1 Ph. Ma. concerns Preachers only but there is another Act made 1 Eliz. that extends to all men in Orders that perform any part of publick Service But neither of these Statutes take away the Common Law And at the Common Law any person there present might have removed the Plaintiff for they were all concern'd in the Service of God that was then performing so that the Plaintiff in disturbing it was a Nusance to them all and might be removed by the same rule of Law that allows a man to abate a Nusance Whereupon Iudgment was given for the Defendant Nisi causa c. Anonymus ACtion sur le Case The Plaintiff declares that whereas the Testator of the Defendant was endebted to the Plaintiff at the time of his death in the sum of 12 l. 10 s. that the Defendant in consideration of forbearance promised to pay him 5 l. at such a time and 5 l. more at such a time after and the other 50 shillings when he should have received money then avers that he did forbear c. and saith that the Defendant paid the two five pounds but for the 50 shilllings residue that he hath received money but hath not paid it The Defendant pleaded non Assumpsit which was found against him Wilmot moved in arrest of Iudgment that the Plaintiff doth not set forth how much money the Defendant had received who perhaps had not received so much as 50 shillings he said though the promise was general yet the breach ought to be laid so as to be adequate to the consideration And secondly that the Plaintiff ought to have set forth of whom the Defendant received the money and when and where because the receit was traversable The Court agreed that there was good cause to demur to the Declaration but after a Verdict they would intend that the Defendant had received 50 shillings because else the Iury would not have given so much in damages and for the other exception they held that the Defendant having taken the general issue had waived the benefit thereof Alford Tatnell GRegory Melchisedec Alford were bound joyntly to Tatnell in a Bond of 700 l. the Obligee brought several Actions and obtained two several Iudgments in this Court against the Obligors and sued both to an Outlawry And in Mich. Term. 18 Car. 2. both were returned outlawed In Hill Term following Gregory Alford was taken upon a Cap. utlagatum by Browne Sheriff of Dorset-shire who voluntarily suffered him to escape Tatnell brought an Action of Debt upon this escape against Browne and recover'd and receiv'd satisfaction notwithstanding which he proceeded to take Melchisedec Alford who brought an Audita querela and set forth all this matter in his Declaration but upon a demurrer the Opinion of the Court was against the Plaintiff for a fault in the Declaration viz. because the satisfaction made to the Plaintiff by the Sheriff was not specially pleaded viz. time and place alledged where it was made for it is issuable and for ought appears by the Declaration it was made after the Writ of Audita querela purchased and before the Declaration The Court said if Tatnell had only brought an Action on the case against the Sheriff and recovered damages for the escape though he had had the damages paid that would not have béen sufficient ground for the Plaintiff here to bring an Audita querela but in this case he recovered his Original debt in an Action of debt grounded upon the escape which is a sufficient ground of Action if he had declared well They gave day to show cause why the Declaration should not be amended paying Costs Anonymus AN Action of False Imprisonment The Defendants justifie by vertue of a Warrant out of a Court within the County Palatine of Durham to which the Plaintiff demur'd The material part of the Plea was That there was antiqua Curia tent coram Vicecomite Comitatus c. vocat The County Court which was accustomed to be held de 15 diebus in 15 dies and that there was a Custom that upon a Writ of questus est nobis issuing out of the County Palatine of Durham and delivered to the Sheriff c. that upon the Plaintiffs affirming quandam querelam against such person or persons against whom the questus est nobis issued the Sheriff used to make out a Writ in the nature of a cap. ad satisfac against him or them c. that such a Writ of questus est nobis issued ex Cur ' Cancellarii Dunelm which was delivered to the Sheriff who thereupon made a precept to his Bayliffs to take the Plaintiff who thereupon was arrested which
Man brings an Action of Debt against B. Sheriff of the County Palatine of Lancaster and sues him to an Outlawry upon mean Process and has a Capias directed to the Chancery of the County Palatine who makes a Precept to the Coroners of the County being six in all to take his body and have him before the Kings Iustices of the Court of Common-Pleas at Westminster such a day One of the Coroners being in sight of the Defendant and having a fair opportunity to Arrest him doth it not but they all return non est inventus though he were easie to be found and might have been taken every day Hereupon the Plaintiff brings an Action against the Coroners and lays his Action in Middlesex and has a Verdict for 100 l. Serj. Baldwin moved in Arrest of Iudgment that the Action ought to have been brought in Lancaster he agreed to the cases put in Bulwer's case 7 Rep. where the cause of Action arises equally in two Counties but here all that the Coroners do subsists and determines in the County Palatine of Lancaster for they make a Return to the Chancery of the County Palatine only and it is he that makes the Return to the Court He insisted upon Dyer 38 39 40. Husse Gibbs 2. He said this Action is grounded upon two wrongs one the not arresting him when he was in sight the other for returning non est inventus when he might easily have been taken now for the wrong of one all are charged and entire damages given He said two Sheriffs make but one Officer but the case of Coroners is different each of them is responsible for himself only and not for his Companion Serjeant Turner Pemberton contra They said the Action was well brought in Middlesex because the Plaintiffs damage arose here viz. by not having the body here at the day They cited Bulwer's case Dyer 159. b. the Chancery returns to the Court the same answer that the Coroners return to him so that their false Return is the cause of prejudice that accrues to the Plaintiff here The ground of this Action is the return of non est inventus which is the act of them all that one of them saw him and might have arrested him and that the Defendant was daily to be found c. are but mentioned as arguments to prove the false Return And they conceived an Action would not lie against one Coroner no more then against one Sheriff in London York Norwich c. But to the first exception taken by Baldwin they said admitting the Action laid in another County then where it ought yet after Verdict it is aided by the Statute of 16 17 Car. 2. if the Ven. come from any place of the County where the Action is laid it is not said in any place of the County where the cause of Action ariseth now this Action is laid in Middlesex and so the Trial by a Middlesex Iury good let the cause of Action arise where it will Cur̄ That Statute doth not help your case for it is to be intended when the Action is laid in the proper County where it ought to be laid which the word proper County implies But they inclined to give Iudgment for the Plaintiff upon the reasons given by Turner Pemberton Adjornatur Bird Kirke IT was resolved in this case by the whole Court 1. That if there be Tenant for life the Remainder for life of a Copy-hold and the Remainder-man for life enter upon the Tenant for life in possession and make a surrender that nothing at all passeth hereby for by his entry he is a Disseisor and has no customary Estate in him whereof to make a surrender 2. That when Tenant for life of a Copy-hold suffers a Recovery as Tenant in Fee that this is no forfeiture of his Estate for the Free-hold not being concern'd and it being in a Court-Baron where there is no Estoppell and the Lord that is to take advantage of it if it be a forfeiture being party to it it is not to be resembled to the forfeiture of a Free-Tenant that Customary Estates have not such accidental qualities as Estates at Common Law have unless by special Custom 3. That if it were a forfeiture of this and all other forfeitures committed by Copy-holders the Lord only and not any of those in Remainder ought to take advantage And they gave Iudgment accordingly North Chief Justice said that where it is said in King Lord's case in Cr. Car. that when Tenant for life of a Copy-hold surrenders c. that no use is left in him but whosoever is afterward admitted comes in under the Lord that that is to be understood of Copy-holds in such Mannors where the Custom warrants only Customary Estates for life and is not applicable to Copy-holds granted for life with a Remainder in Fee Anonymus A Writ of Annuity was brought upon a Prescription against the Rector of the Parish Church of St. Peter in c. the Defendant pleads that the Church is overflown with the Sea c. the Plaintiff demurs Serjeant Nudigate pro Querente The Declaration is good for a Writ of Annuity lies upon a prescription against a Parson but not against an heir F. N. B. 152. Rastall 32. the plea of the Church being drowned is not good at best it is no more then if he had said that part of the Glebe was drowned it is not the building of the Church nor the consecrated ground in respect whereof the Parson is charged but the profits of the Tythes and the Glebe Though the Church be down one may be presented to the Rectory 21 H. 7. 1. 10. H. 7. 13. 16 H. 7. 9. Luttrel's case 4 Rep. Wilmote contra The Parson is charged as Parson of the Church of St. Peter we plead in effect that there is no such Church and he confesseth it 21 Ed. 4. 83. Br. Annuity 39. 21 Ed. 4. 20. 11 H. 4. 49. we plead that the Church is submersa obruta c. which is as much a dissolution of the Rectory as the death of all the Monks is a dissolution of an Abbathie It may be objected that the Defendant has admitted himself Rector by pleading to it but I answer 1. An Estoppel is not taken notice of unless relyed on in pleading 2. The Plaintiff by his demurrer has confessed the Fact of our plea. By which mean the matter is set at large though we were estopped The Court was clearly of opinion for the Plaintiff The Church is the Cure of Souls and the right of Tythes If the material Fabrick of the Parish-Church be down another may be built and ought to be Judicium pro Quer ' nisi c. Term. Trin. 27 Car. II. in Communi Banco Vaughton versus Atwood alios TRespass for taking away some Flesh-meat from the Plaintiff being a Butcher The Defendant justifies by virtue of a Custom of the Mannor of c. that the Homage used
persons who were all capable that there was no difference betwixt that case and this Ellis said that in Floyd Gregories case reported in Jones it was made a point and that Jones in his argument denied the case of Hunt Singleton he said that himself and Sir Rowland Wainscott reported it and that nothing was said of that point but that my Lord Coke followed the Report of Serjeant Bridgeman who was three or four years their puisne and that he mistook the case Milword Ingram THe Plaintiff declares in an Action of the case upon a quantum meruit for 40 shillings and upon an Indebitat Assumpsit for 40 shillings likewise The Defendant acknowledged the promises but further says that the Plaintiff and he accounted together for divers sums of money and that upon the foot of the Account the Defendant was found to be endebted to the Plaintiff in 3 shillings and that the Plaintiff in consideration that the Defendant promised to pay him those 3 shillings discharged him of all demands The Plaintiff demurred The Court gave Iudgment against the demurrer 1. They held that if two men being mutually endebted to each other do account together and the one is found in arrear so much and there be an express agréement to pay the sum found to be in arrear and each to stand discharged of all other demands that this is a good discharge in Law and the parties cannot resort to the original Contracts But North Ch. Just said if there were but one Debt betwixt them entring into an account for that would not determine the Contract 2. They held also that any promise might well be discharged by paroll but not after it is broken for then it is a Debt Jones Wait. SHrewsbury Cotton are Towns adjoining Sir Samuel Jones is Tenant in Tail of Lands in both Towns Shrewsbury Cotton are both within the Liberties of the Town of Shrewsbury Sir Samuel Jones suffers a Common Recovery of all his Lands in both Vills but the Praecipe was of two Messuages and Closes thereunto belonging these were in Shrewsbury and of c. mentioning those in Cotton lying and being in the Ville of Shrewsbury in the Liberties thereof And whether by this Recovery the Lands lying in Cotton which is a distinct Ville of it self not named in the Recovery pass or not was the question Serjeant Jones argued against the Recovery He cited Cr. Jac. 575. in Monk Butler's case Cr. Car. 269 270. 276. he said the Writ of Covenant upon which a Fine is levied is a personal Action but a Common Recovery is a real Action and the Land it self demanded in the Praecipe There is no President he said of such a Recovery He cited a case Hill 22 23 Car. 2. Rot. 223. Hutton 106. Marche's Reports one Johnson Baker's case which he said was the case in point and resolved for him But the Court were all of Opinion that the Lands in Cotton passed And gave Iudgment accordingly Ellis said if the Recovery were erroneous at least they ought to allo 〈…〉 t till it were reversed Lepping Kedgewin AN Action in the nature of a Conspiracy was brought by the Plaintiff against the Defendant in which the Declaration was insufficient The Defendant pleaded an ill plea but Iudgment was given against the Plaintiff upon the insufficiency of the Declaration Which ought to have been entred Quod Defendens eat inde sine die but by mistake or out of design it was entred Quia placitum praedictum in forma praedicta superius placitat ' materiaque in eodem contenta bonum sufficiens in lege existit c. ideo consideratum est per Cur ' quod Quer ' nil capiat per billam The Plaintiff brings a new Action and declares aright The Defendant pleads the Iudgment in the former Action and recites the Record verbatim as it was To which the Plaintiff demurred And Iudgment was given for the Plaintiff nisi causa c. North Chief Justice There is no question but that if a man mistakes his Declaration and the Defendant demurs the Plaintiff may set it right in a second Action But here it is objected that the Iudgment is given upon the Defendants plea. Suppose a Declaration be faulty and the Defendant take no advantage of it but pleads a plea in bar and the Plaintiff takes issue and the right of the matter is found for the Defendant I hold that in this case the Plaintiff shall never bring his Action about again for he is estopped by the Verdict Or suppose such a Plaintiff demur to the plea in bar there by his demurrer he confesseth the fact if well pleaded and this estops him as much as a Verdict would But if the plea were not good then there is no Estoppel And we must take notice of the Defendants plea for upon the matter as that falls out to be good or otherwise the second Action will be maintainable or not The other Iudges agreed with him in omnibus Atkinson Rawson THe Plaintiff declares against the Defendant as Executor The Defendant pleads that the Testator made his Will and that he the Defendant suscepto super se onere Testamenti praedict c. did pay divers sums of money due upon specialties and that there was a Debt owing by the Testator to the Defendants Wife and that he retained so much of the Testators Goods as to satisfie that Debt and that he had no other Assets The Plaintiff demurred because for ought appears the Defendant is an Executor de son tort and then he cannot retain for his own debt The Plaintiffs naming him in his Declaration Executor of the Testament of c. will not make for him for that he does of necessity he cannot declare against him any other way and of that Opinion was all the Court viz. that he ought to entitle himself to the Executorship that it may appear to the Court that he is such a person as may retain And accordingly Iudgment was given for the Plaintiff Term. Hill 27 28 Car. II. in Com. Banco Smith's Case A Man dies leaving Issue by two several Venters viz. by the first three Sons and by the second two Daughters One of the Sons dies intestate the elder of the two surviving Brothers takes out Administration and Sir Lionel Jenkins Iudge of the Prerogative Court would compell the Administrator to make distribution to the Sisters of the half-blood He prayed a Prohibition but it was denied upon advice by all the Iudges for that the Sisters of the half-blood being a kin to the Intestate and not in remotiori gradu then the Brother of the whole blood must be accounted in equal degree Anonymus AN Action was brought against four men viz. two Attornies and two Solicitors for being Attornies and Solicitors in a cause against the Plaintiff in an inferiour Court falso malitiose knowing that there was no cause of Action against him and
also for that they sued the Plaintiff in another Court knowing that he was an Attorney of the Common-Pleas and priviledged there Per tot ' Cur ' there is no cause of Action For put the case as strong as you will suppose a man be retained as an Attorney to sue for a debt which he knows to be released and that himself were a witness to the Release yet the Court held that the Action would not lye for that what he does is only as Servant to another and in the way of his Calling and Profession And for suing an Attorney in an inferiour Court that they said was no cause of Action for who knows whether he will insist upon his priviledge or not and if he does he may plead it and have it allowed Fits al. versus Freestone IN an Action grounded upon a promise in Law payment before the Action brought is allowed to be given in Evidence upon non Assumpsit But where the Action is grounded upon a special promise there payment or any other legal discharge must be pleaded Bringloe versus Morrice IN Trespass for immoderately riding the Plaintiffs Mare the Defendant pleaded that the Plaintiff lent to him the said Mare licentiam dedit eidem aequitare upon the said Mare and that by virtue of this Licence the Defendant and his Servant alternatim had rid upon the Mare The Plaintiff demurs Serj. Skipwith pro Quer ' The Licence is personal and incommunicable as 12 H. 7. 25. 13 H. 7. 13. the Dutchess of Norfolk's case 18 Ed. 4. 14. Serj. Nudigate contra This Licence is given by the party and not created by Law wherefore no Trespass lyeth 8 Rep. 146 147. per Cur ' the Licence is annexed to the person and cannot be communicated to another for this riding is matter of pleasure North took a difference where a certain time is limited for the Loan of the Horse and where not In the first case the party to whom the Horse is lent hath an interest in the Horse during that time and in that case his Servant may ride but in the other case not A difference was taken betwixt hiring a Horse to go to York and borrowing a Horse in the first place the party may set his Servant up in the second not Term. Pasch 28 Car. II. in Communi Banco Anonymus A Man upon marriage Covenants with his Wives relations to let her make a Will of such and such Goods she made a Will accordingly by her husbands consent and dyed After her death her Will being brought to the Prerogative Court to be proved a Prohibition was prayed by the Husband upon this suggestion that the Testatrix was foemina viro cooperta and so disabled by the Law to make a Will Cur ' Let a Prohibition go Nisi causa c. North. When a question ariseth concerning the Iurisdiction of the Spiritual Court as whether they ought to have the Probate of such a Will whether such a disposition of a personal Estate be a Will or not whether such a Will ought to be proved before a peculiar or before the Ordinary whether by the Archbishop of one Province or another or both and what shall be bona notabilia in these and the like cases the Common Law retains the Iurisdiction of determining there is no question but that here is a good surmise for a Prohibition to wit that the woman was a person disabled by the Law to make a Will the Husband may by Covenant depart with his right and suffer his Wife to make a Will but whether he hath done so here or not shall be determined by the Law we will not leave it to their decision it is too great an invasion upon the right of the Husband In this case the Spiritual Court has no Iurisdiction at all they have the Probate of Wills but a Feme-covert cannot make a Will If she disposeth of any thing by her Husbands consent the property of what she so disposeth passeth from him to her Legatee and it is the gift of the husband If the Goods were given into anothers hands in trust for the wife still her Will is but a Declaration of the trust and not a Will properly so called But of things in Action and things that a Feme-Covert hath as Executrix she may make a Will by her Husbands consent and such a Will being properly a Will in Law ought to be proved in the Spiritual Court. In the case in question a Prohibition was granted against the Hambrough Company THe Plaintiff brought an Action of Debt in London against the Hambrough-Company who not appearing upon Summons and a Nihil being returned against them an Attachment was granted to attach Debts owing to the Company in the hands of 14 several persons by Certiorari the cause was removed into this Court and whether a Procedendo should be granted or not was the question Serjeant Goodfellow Baldwin and Barrell argued that a debt owing to a Corporation is not attachable Serjeant Maynard Scroggs contra Cur ' We are not Iudges of the Customs of London nor do we take upon us to determine whether a debt owing to a Corporation be within the Custom of forrein Attachment or not This we judge and agree in that it is not unreasonable that a Corporation's debts should be attached If we had judged the Custom unreasonable we could and would have retained the cause For we can over-rule a Custom though it be one of the Customs of London that are confirmed by Act of Parliament if it be against natural reason But because in this Custom we find no such thing we will return the cause Let them proceed according to the Custom at their peril If there be no such Custom they that are aggrieved may take their remedy at Law We do not dread the consequences of it It does but tend to the advancement of Iustice and accordingly a Procedendo was granted per North Chief Justice Wyndham Ellis Atkyns aberat Anonymus PEr Cur ' if a man is indicted upon the Statute of Recusancy Conformity is a good plea but not if an Action of Debt be brought Parten Baseden's Case PArten brought an Action of Debt in this Court against the Testator of Baseden the now Defendant aâ—d had Iudgment After whose death there was a devastavit returned against the Defendant Baseden his Executor he appeared to it and pleaded and a special Verdict was found to this effect viz. that the Defendant Baseden was made Executor by the Will and dwelt in the same house in which the Testator lived and died and that before Probate of the Will he possest himself of the Goods of the Testator prized them inventoried them and sold part of them and paid a Debt and converted the value of the residue to his own use that afterwards before the Ordinary he refused and that upon his refusal administration was committed to the Widow of the deceased And the question was whether or no the
Defendant should be charged to the value of the whole personal Estate or only for as much as he converted Serjeant Barrell argued That he ought to be charged for the whole because 1. He is made Executor by the Will and he is thereby compleat Executor before Probate to all intents but bringing of Actions 2. He has possession of the Goods and is chargeable in respect of that 3. He caused some to be sold and paid a Debt which is a sufficient administration There is found to discharge him 1. His refusal before the Ordinary But that being after he had so far intermeddled avails nothing Hensloe's case 9 Co. 37. An Executor de son tort he confessed should not be charged for more then he converted and shall discharge himself by delivering over the rest to the rightful Executor But the case is different of a rightful Executor that has taken upon him the burden of the Will The second thing found to discharge him is the granting of Administration to another but that is void because here is a rightful Executor that has administred in which case the Ordinary has no power to grant Administration Hob. 46. Keble Osbaston's case The third thing found to discharge him is the delivery of the Goods over to the Administrator but that will not avail him for himself became responsible by his having possession and he cannot discharge himself by delivering the Goods over to a stranger that has nothing to do with them If it be objected that by this means two persons will be chargeable in respect of the same Goods I answer that payment by either discharges both Cr. Car. Whitmore Porter's case The Court was of Opinion that the committing of Administration in this case is a mere void act A great inconvenience would ensue if men were allowed to Administer as far as they would themselves and then to set up a beggarly Administrator they would pay themselves their own Debts and deliver the residue of the Estate to one that 's worth nothing and cheat the rest of the Creditors If an Administrator bring an Action it is a good plea to say that the Executor made by the Will has administred Accordingly Iudgment was given for the Plaintiff Major Stubbing versus Birde Harrison REsolved that a plea may be a good plea in abatement though it contain matter that goes in bar they relyed upon the case in 10 H. 7. fol. 11. which they said was a case in point and Salkell Skelton's case 2 Rolls Reports and Iudgment was given accordingly Term. Trin. 28 Car. II. in Communi Banco PEr North Chief Iustice if there are Accounts betwéen two Merchants and one of them becomes Bankrupt the course is not to make the other who perhaps upon stating the Accounts is found endebted to the Bankrupt to pay the whole that originally was entrusted to him and to put him for the recovery of what the Bankrupt owes him into the same condition with the rest of the Creditors but to make him pay that only which appears due to Bankrupt on the foot of the Account otherwise it will be for Accounts betwixt them after the time of the others becoming Bankrupt if any such were Wing Jackson TRespass Quare vi armis the Defendant insultum fecit upon the Plaintiff was brought in the County Court and Iudgment there given for the Plaintiff But it was reversed here upon a Writ of false Iudgment because the County Court not being a Court of Record cannot fine the Defendant as he ought to be if the cause go against him because of the vi armis in the Declaration but an Action of Trespass without those words will lie in the County Court well enough Anonymus A Vicar libell'd in the Spiritual Court for Tythes of of young Cattle and surmised that the Defendant was seised of Lands in Middlesex of which Parish he was Vicar and that the Defendant had Common in a great Waste called Sedgemore-Common as belonging to his Land in Middlesex and put his Cattle into the said Common The Defendant prayed a Prohibition for that the Land where the Cattle went was not within the Parish of Middlesex The same Plaintiff libelled against the same Defendant for Tythes of Willow-Faggots who suggests to have a Prohibition the payment of 2 d. a year to the Rector for all Tythes of Willow The same Plaintiff libelled also for Tythes of Sheep The Defendant to have a Prohibition suggests that he took them in to feed after the Corn was reaped pro melioratione agriculturae infra terras arabiles non aliter As for the first of these no Prohibition was granted because of that clause in 2 Edw. 6. whereby it is enacted that Tythes of Cattle feeding in a Waste or Common where the Parish is not certainly known shall be paid to the Parson c. of the Parish where the owner of the Cattle lives For the second they held that a modus to the Rector is a good discharge against the Vicar For the third they held that the Parson ought not to have Tythe of the Corn and Sheep too which make the ground more profitable and to yield more Per quod c. Ingram versus Tothill Ren. REplevin Trevill leased to Ingram for 99 years if Joan Ingram his wife Anthony John Ingram his Sons should so long live rendring an Heriot or 40 shillings to the Lessor and his Assigns at the election of the Lessor his heirs and Assigns after their several deaths successive as they are named in the Indenture Trevill deviseth the Reversion John dyes and then Joan dies and the question was whether or no a Heriot were due to the Devisee upon the death of Joan. The Court agreed that the Avowry was faulty because it does not appear thereby whether Anthony Ingram was alive or not at the time of the distress taken for if he were dead the Lease would be determined North. Though Anthony were alive the Devisee of Trevill could not distrain for the Heriot for that the reservation is to him and his Assigns and although the Election to have the Heriot or 40 shillings given to the Lessor his heirs or Assigns yet that will not help the fault in the reservation Ellis There is another fault in the pleading for it is pleaded that Trevill made his Will in writing but it is not said that he dyed so seized for if the Estate of the Devisor were turned to a right at the time of his death the Will could not operate upon it Also it is said that the Avowant made his Election and that the Plaintiff habuit notitiam of his Election but it is not said by whom notice was given for these causes Iudgment was given for the Plaintiff It was urged likewise against the Avowant that no Heriot could be due in this case because Joan did not die first but the course of succession is interrupted and that a Heriot not being due of
Windham and Scroggs contr for that the Iury are the sole Iudges of the damages At another day it was moved in arrest of Iudgment That the words are not actionable And of that Opinion was Atkyns But North Windham Scroggs contr And so the Plaintiff had Iudgment Atkyns The occasion of the making of the Stat. of 5 Rich. 2. appears in Sir Robert Cotton's Abr. of the Records of the Tower fol. 173. num 9. 10. he says there That upon the opening of that Parliament the Bishop of St. Davids in a Speech to both Houses declared the Causes of its being summoned and that amongst the rest one of them was to have some restraint laid upon Slanderers and Sowers of Discord which sort of men were then taken notice of to be very frequent Ex malis moribus bonae Leges The Preamble of the Act mentions false News and horrible Lyes c. of things which by the said Prelates c. were never said done nor thought So that it seems designed against telling stories by way of News concerning them The Stat. does not make or declare any new Offence Nor does it inflict any new Punishment All that seems to be new is this 1. The Offence receives an aggravation because it is now an Offence against a positive Law and consequently deserves a greater Punishment as it is held in our Books That if the King prohibit by his Proclamation a thing prohibited by Law that the Offence receives an aggravation by being against the King's Proclamation 2. Though there be no express Action given to the party grieved yet by operation of Law the Action accrews For when ever a Statute prohibits any thing he that finds himself grieved may have an Action upon the Statute 10 Rep. 75. 12 Rep. 100. there this very Case upon this Statute was agreed on by the Iudges So that that is the second new thing viz. a further remedy An Action upon the Stat. 3. Since the Stat. the party may have an Action in the tam quam Which he could not have before Now every lye or falsity is not within the Stat. It must be horrible as well as false We find upon another occasion such a like distinction It was held in the 12 Rep. 83. That the High-Commission Court could not punish Adultery because they had Iurisdiction to punish enormous Offendors only So that great and horrible are words of distinction Again it extends not to small matters because of the ill consequences mentioned Debates and Discord betwixt the said Lords c. great peril to the Realm and quick subversion and destruction of the same Every word imports an aggravation The Stat. does not extend to words that do not agree with this Description and that cannot by any reasonable probability have such dire effects The Cases upon this Statute are but few and late in respect of the antiquity of the Act. It was made Anno 1379. for a long time after we hear no tydings of an Action grounded upon it And by reading it one would imagine that the makers of it never intended that any should be But the Action arises by operation of Law not from the words of the Act nor their intention that made it The first Case that we find of an Action brought upon it is in 13 H. 7. which is 120 years after the Law was made so that we have no contemporanea expositio which we often affect That Case is in Keil 26. the next in 4 H. 8. where the Duke of Buckingham recovered 40 l. against one Lucas for saying that the Duke had no more conscience than a Dog and so he got money he cared not how he came by it He cited other Cases and said he observed That where the words were general the Iudges did not ordinarily admit them to be actionable otherwise when they charged a Peer with any particular miscarriage Serjeant Maynard observed well That the Nobility and great men are equally coucerned on the Defendants part for Actions upon this Statute lie against them as well as against the meanest Subject Acts of Parliament have been tender of racking the King's Subjects for words And the Scripture discountenances mens being made Transgressors for a word I observe that there is not one case to be met with in which upon a motion in arrest of Iudgment in such an Action as this the Defendant has prevailed The Court hath sometimes been divided the matter compounded the Action has abated by death c. but a positive Rule that Iudgment should be arrested we find not So that it is time to make a President and fix some Rules according to which men may demean themselves in converse with great persons Misera est servitus ubi jus est vagum Since we have obtained no Rules from our Predecessors in Actions upon this Statute we had best go by the same Rules that they did in other Actions for words In them when they grew frequent some bonnds and limits were set by which they endeavoured to make these Law certain The Actions now encrease The stream seems to be running that way I think it is our part to obviate the mischief So he was of Opinion That the Iudgment ought to be arrested but the Court gave Iudgment for the Plaintiff North. There are three sorts of Hab. Corp. in this Court 1. Hab. Corp. ad respondendum and that is when a man hath a cause of suit against one that is in prison he may bring him up hither by Hab. Corp. and charge him with a Declaration at his own suit 2. There is a Hab. Corp. ad faciendum recipiendum and that Defendants may have that are sued in Courts below to remove their Causes before us Both these Hab. Corp. are with relation to the suits properly belonging to the Court of Common Pleas. So if an inferiour Court will proceed against the Law in a thing of which we have Conisance and commit a man we may discharge him upon a Hab. Corp. this is still with relation to Common Pleas. A third sort of Hab. Corp. is for priviledged Persons But a Hab. Corp. ad subjiciendum is not warranted by any Presidents that I have seen Term. Pasch 29 Car. II. in Communi Banco Hall Booth NOrth In Actions of Debt c. the first Process is a Summons if the Defendant appears not upon that a Cap. goes and then we hold him to Bail The reason of Bail is upon a supposition of Law that the Defendant flies the Iudgment of the Law And this supposition is grounded upon his not appearing at the first For if he appear upon the Summons no Bail is required And this is the reason why it is held against the Law for any inferiour Court to issue out a Capias for the first Process For the liberty of a man is highly valued in the Law and no man ought to be abridged of it without some default in him A Church is in decay the Bishops Court must
is 24 Ed. 3. 30. Pl. 27. which is our very case The King brings a Quare Impedit for a Church appendant to a Mannor as a Guardian the Defendant makes a Title and traverseth the Title alledged by the King in his Count viz. the appendancy the King replies and Traverses the Defendants Title For this cause the Defendant demurs and Iudgment was for the King In this case it doth not appear in the pleading that the King was in by matter of Record and so it is our very case For the King may be in by possession by virtue of a Wardship without matter of Record by Entry c. Stamf. Prerog 54. I rely upon these two Cases But 7 H. 8. Keil 175. is somewhat to the purpose Per Fitz. In a Ravishment of Ward by the King if the Defendant make a Title and traverse the Kings Title the Kings Attorney may maintain the Kings Title and Traverse the Defendants Title I think there is no difference betwéen the Kings being in possession by matter of Record and by matter of Fact Again If matter of Record be necessary here is enough viz. The Queens Presentation under the Great Seal of England And here is a descent which is and must be Jure Coronae It is unreasonable that a Subject should turn the King out of possession by him that hath no Title This is a Prerog Case As to the Statutes objected by my Brother Archer they concern not this case The first enables the Patron to counterplead But here the Patron pleads The rest concern the Kings Presenting En auter droit But here it is in his own Right I think the King in our case may fly upon the Defendants Title and there is no inconvenience in it For the Kings Title is not a bare suggestion For it is confessed by the Defendant that the Quéen did Present But he alledges it was by Lapse For another reason I think Iudgment ought to be for the King viz. because the Defendant has committed the first fault For his Bar is naught in that he has traversed the Queens Seisin in Grosse whereas he ought to have traversed the Queens Presentment modo forma For where the Title is by a Seisin in Grosse it is repugnant to admit the Presentment and deny the Seisin in Grosse because the Presentment makes it a Seisin in Grosse 10 H. 7. 27. Pl. 7. in point and so is my Lord Buckhurst's Case in 1 Leonard 154. The traverse here is a matter of substance But if it be but Form it is all one For the King is not within the Statute 27 El. cap. 5. So he concluded that Iudgment ought to be given for the King Doctor Lee's Case A Motion was made by Raymond for a Writ of Priviledge to be discharged from the Office of Expenditour to which he was elected and appointed by the Commissioners of Sewers in some part of Kent in respect of some Lands he had within the Levell He insisted that the Doctor was an Ecclesiastical person Archdeacon of Rochester where his constant attendance is required Adding that the Office to which he was appointed was but a mean Office being in the nature of that of a Bayliff to receive and pay some small sums of money and that the Lands in respect whereof he is elected were let to a Tenant V. 1. Cr. 585. Abdy's case It was objected against this that this Archdeacons Predecessors did execute this Office and the Court ordered that notice should be given and cause shewn why the Doctor should not do the like Afterward Rainesford Morton only being in Court it was ruled he should be priviledged Because he is a Clergy-man F. B. 175. r. But I think for another reason viz. because the Land is in Lease and the Tenant if any ought to do the Office Take the Writ Lucy Lutterell vid. versus George Reynell Esq George Turbervile Esq John Cory Ann Cory THe Plaintiff as Administratrix to Jane Lutterell durante minori aetate of Alexander Lutterell the Plaintiffs second Son declared against the Defendants in an Action of Trespass for that they simul cum John Chappell c. did take away 4000 l. of the moneys numbred of the said Jane upon the 20th day of October 1680. and so for seven days following the like sums ad damnum of 32000 l. Upon a full hearing of Witnesses on both sides the Iury found two of the Defendants guilty and gave 6000 l. damages and the others not guilty A new Trial was afterwards moved for and denied At the Trial Mr. Attorney General excepted against the Evidence that if it were true it destroyed the Plaintiffs Action inasmuch as it amounted to prove the Defendants guilty of Felony and that the Law will not suffer a man to smooth a Felony and bring Trespass for that which is a king of Robbery Indeed said he if they had been acquitted or found guilty of the Felony the Action would lye and therefore it may be maintained against Mrs. Cory who was as likewise was William Maynard acquitted upon an Indictment of Felony for this matter but not against the rest But my Lord Chief Baron declared and it was agreed that it should not lye in the mouth of the party to say that himself was a Thief and therefore not guilty of the Trespass But perhaps if it had appeared upon the Declaration the Defendant ought to have been discharged of the Trespass Quaere what the Law would be if it appeared upon the pleading or were found by special Verdict My Lord Ch. Baron did also declare and it was agréed that whereas W. Maynard one of the Witnesses for the Plaintiff was guilty as appeared by his own Evidence together with the Defendants but was left out of the Declaration that he might be a Witness for the Plaintiff that he was a good and legal Witness but his credit was lessened by it for that he swore in his own discharge For that when these Defendants should be convicted and have satisfied the Condemnation he might plead the same in Bar of an Action brought against himself But those in the simul cum were no Witnesses Several witnesses were received and allowed to prove that William Maynard did at several times discourse and declare the same things and to the like purpose that he testified now And my Lord Chief Baron said though a hear-say was not to be allowed as a direct Evidence yet it might be made use of to this purpose viz. to prove that William Maynard was constant to himself whereby his Testimony was Corroborated One Thorne formerly Mr. Reynell's Servant being Subpoened by the Plaintiff to give Evidence at this trial did not appear But it being sworn by the Exeter Waggoner that Thorne came so far on his Iourney hitherward as Blandford and there fell so sick that he was not able to travel any further his Depositions in Chancery in a Suit there between these parties about this matter were admitted to be read
lay in the River whether it lies or not 85 Action upon the Case upon a Promise on consideration to bring two men to make Oath before two men not authoriz'd by Law to administer an Oath 166 Action against the Coronors of a County Palatine for a false Return the Action laid in Middlesex 198 199 V. Attorney Action upon the Case lies not for suing an Attorney in an inferior Court 209 Action upon the Case for that the Defendant had taken away his Goods and hidden them in such secret places that the Plaintiff could not come at them to take them in Execution adjudged that it does not lie 286 Administrators An Administrator recovers Damages in an Action of Trover and Conversion for Goods of the Intestate taken out of his own possession then his Administration is revoked whether can he now have Execution 62 63 Administrators plead fully administred to an Action of Debt for Rent incurr'd in their own time Which was held to be an ill plea. 185 186 The Action lies against them in the debet detinet for Rent incur'd in their own time ibid. They cannot waive a term for years ibid. Debt upon an Obligation against an Administrator The Defendant pleads a Statute acknowledged by the Intestate to the Plaintiff which Statute is yet in force the Plaintiff replies That it is burnt The Defendant demurs 186 187 A Stranger takes out Administration to a Feme Covert and puts a Bond in Suit the Defendant pleads That the Husband is de jure Administrator to the Wife and is yet alive 231 V. Distribution Annuity An Action lies for an Annuity against the Rector of a Church though the Church be drown'd 200 201 Appearance In an Action brought by Executors some of whom are under age all the Plaintiffs appear by Attorney whether well or no 47 72 276 277 c. Apprentices Vide p. 2. Enditement for exercising a Trade in a Village not having served seven years as an Apprentice 26 An Action of Covenant lies against an Infant Apprentice upon his Indenture of Apprenticeship c. by the custom of London 271 Concerning the Power of the Justices in discharging Masters of their Apprentices Vide 286 287 Whether may a Difference between a Master and an Apprentice be brought originally before the Sessions or not V. 287 Arbitrement and Arbitrators An Award that one of the Parties shall discharge the other from his undertaking to pay a Debt to a third person a good Award 9 The Power of the Arbitrators and of the Umpire cannot concur 15 274 275 The staying of a Cause is implied in referring it to Arbitrators 24 Inter alia arbitratum fuit naught 36 Arrest Attachment for arresting a man upon a Sunday or as he is going to Church 56 Assault and Battery What makes an Assault 3 Justification in an Action of Assault and Battery 168 169 For striking a Horse whereon the Plaintiff rode whereby that Horse ran away with him so that he was thrown down and another Horse ran over him 24 Pleading in an Action of Assault and Battery 36 Assets Assets in equity V. 115. Attachment Against a man for not performing an Award submitted to by Rule of Court 21 V. Arrest Attorney Whether are Attorneys within the Statute against Extortion or not 5 6 If an Attorney be sued time enough to give him two Rules to plead within the Term Judgment may be given 8 Not compellable to put in special Bail 10 Whether can an Attorney of the Kings Bench be debar'd from appearing for his Client in the Court at Stepney 23 24 Ill practices of Attorneys 41 An Attorney ought not to waive his Court 118 An Action lies not against an Attorney for suing in a Cause as Attorney knowing that the Plaintiff has no Cause of Action 209 Audita Querela Can be brought before Judgment enter'd 111 V. 170 Outlawry pleaded in disability 224 Avowry Whether needs he that distrains Cattel for a Rent-Charge set forth in his Avowry that they were Levant and Couchant 63 Exceptions to an Avowry for a Heriot 216 217 The Husband alone may avow for a Rent due to him in right of his Wife 273 B. Bail THree men bring an Action and the Defendant puts in bail at the Suit of four 5 V. Baron and Feme The course of the Court in taking bail 16 The reason of the Law in requiring bail 236 Special bail denied in Battery 2 V. Attorney V. p. 25. Bankrupt A Plaintiff has Judgment and before Execution becomes Bankrupt moved that the money may be brought into Court 93 Accounts between two Merchants and one of them becomes Bankrupt how far shall the other be a Debtor or Creditor 215 Baron and Feme Baron and Feme are sued in Trover and Conversion and the Wife arrested she shall be discharg'd upon common Bail 8 The Husband must pay for the Wives Apparrel unless she elope and he give not order to trust her 9 Whether or no and in what cases the Husband is bound by the Contract of the Wife and in what cases not 124 c. Husband and Wife recover in Action of Debt and have Judgment the Wife dies the Hushand shall have Execution 179 180 V. Tit. Avowry Bar. Judgment in a former Action pleaded in Bar of a second 207 Bastard-Children Orders of Sessions made upon the 18th of Eliz. for the keeping of them by the reputed Fathers 20 Bill of Exchange Needs not be protested on the very day that it becomes due 27 V. Tit. Indebitat assumpsit Borough-English Copyhold Land of the tenure of Borough-English surrendred to the use of another person and his heirs who dies before admittance the Right shall descend to the youngest Son 102 C. Cap. Excommunicatum MIsnosmer cannot be pleaded to a Cap. Excomm for the party has no day in Court 70 Certiorari To remove an Enditement of Robbery whether it removes the Recognizances to appear 41 To remove an Enditement of Murder out of Wales 64 68 Cinque-Ports Hab. Corp. to remove one out of the Cinque-Ports 20 Citation Citation ex officio not according to Law 185 Common Whether may a Corporation prescribe for a common sans number in gross 6 7 Condition That if the Obligor bring in Alice and John Coats when they come to their ages of 21 years c. to give Releases c. these words must be taken respectively 33 The Condition of a Bond for the parties appearance at a certain day and concludes If the party appear then the Condition to be void 35 36 Condition precedent or not 64 An Estate is given by Will upon Condition that if the Devisee marry without the consent of c. then a stranger to enter c. whether is this a Condition or a Limitation 86 c. 300 c. Condition of a Bond is to seal and execute a Release is the Obligor bound to do it without a tender 104 A Bond is dated in March the Condition is to pay money super 28 diem
had bona notab in divers Diocesses and the Archbishop of Canterbury committed Administration to the Defendant and concludes in Bar. V. Divers exceptions taken to the Plea 239 V. Administrators Evidence V. Copy A suspension of a rent may be given in Evidence upon nil debet pleaded 35 118 Evidence of a Deed. 94 An Action of Debt brought upon an Escape May a fresh Suit be given in Evidence upon nil debet pleaded 116 Copies and Exemplifications allowed to be given in Evidence when the Originals are burnt 117 Pleinment administer pleaded Payment of some Debts c. and delivering over the residue of the personal Estate to the Infant Executor when he comes of age may be given in Evidence 174 In an Action of Assumpsit grounded upon a Promise in Law payment may be given in Evidence not where the Action is grounded upon an express Promise 210 Hear-says how far allowable in Evidence 283 Depositions in Chancery allow'd to be read 283 284 F. False Imprisonment IN an Action of false Imprisonment the Defendant Justifies by vertue of a Warrant out of a Court within the County Palatine of Durham V. 170 171 172. several exceptions to the pleading The Defendant in false Imprisonment justifies by vertue of an Order of the Court of Chancery nought 272 Felony To cut down Corn and carry it away at the same time is no Felony But to cut it down and lay it by and carry it away afterwards is Felony 89 Feme sole Merchant V. 26. Fieri facias The Sheriff may execute a Writ of Fieri facias upon the Goods of the Defendant in the hands of his Administrator he dying after the Teste of the Writ and before Execution 188 Fine V. Ejectione firmae An interest for years in what Cases bar'd by a Fine and in what not 217 Fishing Common and several Pischary and fishing in publick and in private Rivers 105 106 Forcible Entry Enditement of forcible Entry 73 Forfeiture A man settles a term in trust for himself during his life and afterwards in trust for several of his Friends provided that if he have any issue of his body at the time of his death the trust shall cease and the assignment be to the use of such issue provided also that if he be minded to change the Uses that he may have power so to do by writing in the presence of two or more Witnesses or by his last Will. Then he commits Treason and is attainted by Act of Parliament and dies having issue Male at the time of his death but without making any revocation of the Uses of this settlement no more of this term is forfeited than during his own life only 16 17 38 39 40 Forma Pauperis A man that is admitted in Forma pauperis is not to have a new Trial nor is suffer'd to remove an Action out of an inferior Court 268 Formedon in Descender Exceptions to the Count. 219 220 Foreign Attachment Whether or no is a Debt due to a Corporation within the Custom of Foreign Attachment 212 Fraudulent Conveyance A Deed may be voluntary and yet not fraudulent V. 119 G. Gager de Ley. A Man cannot wage his Law in an Action brought upon a Prescription for a duty 121 Gardian Infant Tenant in a Common Recovery is admitted by Gardian ad sequendum whether that be Error or not 48 49 Gavelkind A Rent de novo granted out of Gavelkind-land shall descend according to the descent of the Land 96 97 c. Grant le Roy. V. 195 196 c. H. Habeas Corpus WHat time to plead has the party that comes in upon a Habeas Corpus 1 Habeas Corpus to remove one out of the Cinque-Ports 20 V. Excise Though the Return be filed the Court of Kings Bench may remand or commit the Prisoner to the Marshalsey at their Election 144 A Member of the House of Lords committed by the House for a Contempt cannot be set at liberty the Court of Kings Bench upon a Habeas Corpus be the Cause of his Commitment what it will 144 145 146 c. Habeas Corpus though returnable two days after the end of the Term yet ties up the inferior Court 195 Whether does a Habeas corpus ad subjiciendum lie in Court of Common Pleas 235 Heir Two Actions of Debt against an Heir upon two several Obligations of his Ancestor The Plaintiff in the second Action obtains Judgment first and whether shall be first satisfied 253 I. Jeoffails WAnt of an averment helpt after Verdict 14 V. 199 Inclosures Inquisition upon the Statute against pulling down Inclosures 66 Indebitatus assumpsit Indebitat assumpsit pro opere facto lies well enough 8 For money received of the Plaintiff by one Thomas Buckner by the appointment and to the use of the Defendant Good after a Verdict 42 Lies not against the Executors of a Treasurer of Sub-Treasurer of a Church or the like 163 An Action is brought upon an indebitat assumpsit and quantum meruit the Defendant pleads That the Plaintiff and himself accounted together and that the Plaintiff in consideration that the Defendant promised to pay him what was found due to him upon the foot of the Account discharged him of all former Contracts 205 206. and held to be a good Plea Indebitat assumpsit will not lie upon a Bill of Exchange accepted 285 286 Indebit assumpsit for Wares sold and no Evidence given of an agreement for the price 295 Indictment An Act of Parliament creates a new Offence and appoints other ways of proceeding than by Endictment yet if there are no negative words an Indictment lies 34 Indictment for these words viz. When ever a Burgess of Hull puts on his Gown Satan enters into him 35 Moved to quash an Inditement because the year of our Lord in the caption was in figures 78 Infant A man declares That the Defendant in consideration that the Plaintiff would let him take so much of his Grass promised c. held to be good Consideration though the Plaintiff were an Infant 25 V. tit Appearance V. tit Apprentice V. tit Recovery V. tit Notice Information An Information does not lie against a Lord for taking unreasonable Distresses of several of his Tenants 71 288 V. tit Recusants Intendments V. 67. Issue V. 72. Judge No Action upon the Case lies against a Judge upon a wrongful commitment 184 185 Juries If a Knight be but return'd on a Jury when a Peer is concern'd it 's not material whether he appear and give his Verdict or no 226 L. Labourers AN Enditement for retaining a Servant without a Testimonial from his last Master quasht for imperfection 78 Lease A Licence to enjoy till such a time whether it be a Lease or no and how to be pleaded 14 15 Uncertain limitations and impossible limitations of commencements of Leases 180 A Bishops Lease good upon which the whole rent is reserved upon part of what was accustomably demised 203 204 Libel V. 58. Limitation V. Condition
the Sheriff because he is compellable to let him to bail but this is an Action at the Common Law for a false Return which if it should not be maintainable the design of the Statute would be defrauded for the Plaintiff cannot controll the Sheriff in his taking bail but he may take what persons and what bail he pleaseth and if he should not be chargeable in an Action for not having the body ready the Plaintiff could never have the effect of his Suit and although the Sheriff be chargeable he will be at no prejudice for he may repair his loss by the bail-bond and it is his own fault if he takes not security sufficient to answer the Debt The last clause in the Statute is That if any Sheriff return a Cepi corpus or reddidit se he shall be chargeable to have the body at the day of the Return as he was before c. that if implies a Liberty in the Sheriff not to return a Cepi corpus or reddidit se But notwithstanding by the opinion of North Chief Justice Wyndham Atkyns Justice the Plaintiff was barred Bowles Lassel's case they said was a strong case to govern the point and the return of paratum habeo is in effect no more then if he had the body ready to bring into Court when the Court should command him and it is the common practice only to amerce the Sheriff till he does bring in the body and therefore no Action lies against him for it is not reasonable that he should be twice punished for one Offence and that against the Court only Scroggs delivered no Opinion but Iudgment was given ut sup Cockram Welby ACtion upon the Case against a Sheriff for that he levied such a sum of money upon a Fieri facias at the Suit of the Plaintiff and did not bring the money into Court at the day of the return of the Writ Per quod deterioratus est dampnum habet c. the Defendant pleads the Statute of 21 Jac. of Limitations To which the Plaintiff demurs Serjeant Barrell This Action is within the Statute It ariseth ex quasi contractu Hob. 206. Speak Richard's case It is not grounded on a Record for then nullum tale Recordum would be a good plea which it is not it lies against the Executors of a Sheriff which it would not do if it arose ex maleficio Pemberton This Action is not brought upon the Contract if we had brought an Indebitatus Assumpsit which perhaps would lie then indeed we had grounded our selves upon the Contract and there had been more colour to bring us within the Statute but we have brought an Action upon the case for not having our money here at the day Per quod c. North. An Indebitatus Assumpsit would lie in this case against the Sheriff or his Executor and then the Statute would be pleadable I have known it resolved that the Statute of Limitations is not a good plea against an Attorny that brings an Action for his Fees because they depend upon a Record here and are certain Next Trinity Term the matter being moved again the Court gave Iudgment for the Plaintiff Nisi causa c. if the Fieri facias had been returned then the Action would have beén grounded upon the Record and it is the Sheriffs fault that the Writ is not returned but however the Iudgment in this Court is the foundation of the Action Debt upon the Stat. of 2 Edw. 6. for not setting out Tythes is not within the Stat. for oritur ex maleficio so the ground of this Action is maleficium and the Iudgment here given In both which respects it is not within the Statute of Limitations Barrow Parrot PArrot had married one Judith Barrow an Heiress Sir Herbert Parrot his Father and an ignorant Carpenter by vertue of a dedimus potestatem to them directed took the conusance of a Fine of the said Judith being under age and by Indenture the use was limited to Mr. Parrot and his wife for their two lives the remainder to the Heirs of the Survivor about two years after the wife died without issue and Barrow as heir to her prayed the relief of the Court. Vpon examination it appear'd that Sir Herbert did examine the woman whether she were willing to levy the fine and asked the husband and her whether she were of age or not both answered that she was She afterwards being privately examin'd touching her consent answered as before and that she had no constraint upon her by her husband but she was not there question'd concerning her age Sir Herbert Parrot was not examined in Court upon Oath because he was accused and North said this Court could no more administer an Oath ex Officio then the Spiritual Court could North Wyndham There is a great trust reposed in the Commissioners and they are to inform themselves of the parties age and a voluntary ignorance will not excuse them But Atkyns opposed his being fined he cited Hungates case Mich. 12 Jac. Cam. Stell 12. Cook 122 123. where a Fine by Dedimus was taken of an Infant and because it was not apparent to the Commissioners that the Infant was within age they were in that Court acquitted But North Wyndham Scroggs agreed that the Son should be fined for that he could not possibly be presumed to be ignorant of his Wifes age Atkyns contra But they all agreed that there was no way to set the Fine aside Term. Trin. 29 Car. II. in Communi Banco Searle Long. QUare Impedit against two one of the Defendants appears the other casts an essoyn wherefore he that appear'd had idem dies then he that was essoyn'd appears and the other casts an essoyne Afterward an issued for their not Attachment appearing at the day and so Process continued to the great distress which being return'd and no appearance Iudgment final was ordered to be entred according to the Statute of Marlebr cap. 12. It was moved to have this rule discharged because the party was not summoned neither upon the Attachment nor the great distress and the Sureties returned upon the Process were John Doo Richard Roo an Affidavit was produced of Non-summons and that the Defendant had not put in any Sureties nor knew any such person as John Doo Richard Roo It was objected on the other side that they had notice of the suit for they appeared to the Summons and it appeared that they were guilty of a voluntary delay in that they forched in essoyne and the Stat. of Marlebr is peremptory wherefore they prayed Iudgment Serjeant Maynard for the Defendants If Iudgment be entred against us we have no remedy but by a Writ of Deceit Now in a Writ of Deceit the Sumners and veyors are to be examin'd in Court and this is the Trial in that Action but feigned persons cannot be examined It is a great abuse in the Officers to return such
feigned names The first cause thereof was the ignorance of Sheriffs who being to make a return looked into some Book of Presidents for a form and finding the names of John Doo and Rich. Roo put down for examples made their return accordingly and took no care for true Sumners and true Manucaptors For Non-appearance at the return of the great Distress in a plea of Quare Impedit final Iudgment is to be given and our right bound for ever which ought not to be suffered unless after Process legally served according to the intention of the Statute In a case Mich. 23. of the present King Iudgment was entred in this Court in a plea of Quare impedit upon non-appearance to the great Distress but there the party was summoned and true Summoners returned upon non-appearance an Attachment issued and real Sumners return'd upon that but upon the Distress it was return'd that the Defendants districti fuerunt per bona catalla manucapti per Joh. Doo Rich. Roo and for that cause the Iudgment was vacated Cur ' The design of the Statute of Marlebridge was to have Process duly executed which if it were executed as the Law requires the Tenant could not possibly but have notice of it For if he do not appear upon the Summons an Attachment goes out that is a command to the Sheriff to seize his body and make him give Sureties for his appearance if yet he will not appear then the great distress is awarded that is the Sheriff is commanded to seize the thing in question if he come not in for all this then Iudgment final is to be given Now the issue of this Process being so fatal that the right of the party is concluded by it we ought not to suffer this Process to be changed into a thing of course It is true the Defendant here had notice of the Suit but he had not such notice as the Law does allow him And for his fourching in essoyn the Law allows it him Accordingly the Iudgment was set aside Anonymus FAlse Judgment out of a County Court the Record was vitious throughout and the Iudgment reversed and ordered that the Suitors should be amerced a Mark but the Record was so imperfectly drawn up that it did not appear before whom the Court was held and the County Clark was fined Five pounds for it Cessavit per biennium the Defendant pleads Non-tenure He commenceth his plea quod petenti reddere non debet but concludes in abatement Serjeant Barrell He cannot plead this plea for he has imparled Cur̄ Non-tenure is a plea in bar the conclusion indeed is not good but he shall amend it Barrell Non-tenure is a plea in abatement The difference is betwixt Non-tenure that goes to the tenure as when the Tenant denies that he holds of the demandant but says that he holds of some other person which is a plea in bar and Non-tenure that goes to the Tenancy of the Land as here he pleads that he is not Tenant of the Land and that goes in abatement only The Defendant was ordered to amend his plea. Addison versus Sir John Otway TEnant in tail of Lands in the Parishes of Rippon Kirby-Marleston in the Towns of A. B. C. Tenant in Tail makes a Deed of bargain and sale to J. S. to the intent to make J. S. Tenant to the Praecipe in order to the suffering of a common Recovery of so many Acres in the Parishes of Rippon Kirby-Marlestone Now in those Parishes there are two Towns called Rippon Kirby-Marlestone and the Recovery is suffered of Lands in Rippon Kirby-Marlestone generally all this was found by special Verdict and further that the intention of the parties was that the Lands in question should pass by the said recovery and that the Lands in question are in the Parishes of Rippon Kirby-Marlestone but not within the Townships and that the bargainor had no Lands at all within the said Townships The question was whether the Lands in question should pass by this Recovery or not Shaftoe They will pass The Law makes many strained constructions to support common Recoveries and abates of the exactness that is required in adversary Suits 2 Rolls 67. 5 Rep. Dormer's case Eare Snow Plo. Com. Sir Moyle Finche's case 6 Rep. Cr. Jac. 643. Ferrers Curson In Stork Foxe's case Cr. Jac. 120 121. where two Villes Walton Street were in the Parish of Street and a man having Lands in both levied a Fine of his Lands in Street his Lands in Walton would not pass but there the Conusor had Lands in the Town of Street to satisfie the grant but in our case it is otherwise He cited also Rolls Abridgm Grants 54. Hutton 105. Baker Johnson The Deed of bargain and sale and the Recovery make up in our case but one assurance and construction is to be made of both together as in Cromwells case 2 Report The intention of the parties Rules Fines and Recoveries and the intention of the parties in our case appears in the Deed and is found by the Verdict Rolls Abridgm 19. 2 part Winch. 122. per Hob. Cr. Car. 308. Sir George Symond's case betwixt which last case and ours all the diffreence is that that case is of a Fine and ours of a Common Recovery betwixt which Conveyances as to our purpose there is no difference at all He cited Jones Wait's case Trin 27 Car. 2. in this Court and a case 16 Reg. nunc in B. R. when Hide was Chief Iustice betwixt Thynne Thynne North. The Law has always stuck at new niceties that have been started in cases of Fines and Common Recoveries and has gotten over almost all of them I have not yet seen a case that warrants the case at Bar in all points Nor do I remember an Authority expresly against it and it seems to be within the reason of many former resolutions But we must be cautious how we make a further step Wyndham I think the Lands in question will pass well enough and that the Deed of bargain and sale which leads the uses of the Recovery does sufficiently explain the meaning of the words Rippon Kirby Marlestone in the recovery I do not so much regard the Iuries having found what the parties intention was as I do the Deéd it self in which he expresses his own intention himself and upon that I ground my Opinion Atkyns agreed with Wyndham Indeed when a place is named in legal proceedings we do prima facie intend it of a Ville if nothing appears to the contrary stabitur praesumptio donec probetur in contrarium In this case the Evidence of the thing it self is to the contrary The reason why prima facie we intend it of a Ville is because as to civil purposes the Kingdom is divided into Villes He do not intend it of a Parish because the division of the Kingdom into Parishes is an Ecclesiastical distribution to Spiritual purposes