an Estate Tail and therefore the pleading the Lease is not material for if it were a Lease expired yet the Plaintiff could not recover and therefore the praeter is wholly idle and insignificant of which the Plaintiff ought not to take notice because the Lands which come under the praeter are not chargeable The Plaintiff hath traversed as he ought what is material and is not bound to take notice of any thing more And of that Opinion was the whole Court and held the praeter idle and the general Replication good and Iudgment was given for the Plaintiff Prince versus Rowson Executor of Atkinson EXecutor de son tort cannot retain Executor de son tort cannot retain The Defendant in this Case pleaded that the Testator owed his Wife dum sola 800 l. and that he made his Will but doth not shew that he was thereby made Executor and therefore having no Title he became Executor de son tort for which cause his Plea was held ill and Iudgment was given for the Plaintiff Norris versus Palmer THE Plaintiff brought an Action on the Case against the Defendant for causing him falso malitiose to be indicted for a Common Trespass in taking away one hundred Bricks Case after an acquittal upon an Indictment for Trespas by which means he was compelled to spend great Sums of Mony and that upon the Trial the Iury had acquitted him The Defendant demurred to the Declaration and Barrel Serjeant said for him that the Action would not lie and for a President in the Case he cited a like Iudgment between Langley versus Clerk in the King's Bench Trin. 1658. 2 Sid. 100. In which Action the Plaintiff was indicted for a Battery with an intent to ravish a Woman and being acquitted brought this Action and the Court after a long Debate gave Iudgment for the Plaintiff but agréed that the Action would not lie for a Common Trespass as if it had beén for the Battery only but the Ravishing was a great scandal and for that reason the Plaintiff recoverd there but this is an ordinary Trespass and therefore this Action will not lie But Pemberton Serjeant held that the Action would lie because it was in the nature of a Conspiracy Sid. 463 464. 1 Cro. 291. and done falsly and malitiously knowing the contrary and thereby the Plaintiff was put to great Charges all which is confessed by the Demurrer And the Case cited on the other side is express in the Point for the Court in that Case could take notice of nothing else but the Battery for the intent to ravish was not traversable and therefore it was idle to put it into the Indictment It is now settled that an Action on the Case will lye for a malitious Arrest where there is no probable cause of Action and this Case is stronger than that because in the one the party is only put to Charges and in the other both to Charges and Disgrace for which he hath no remedy but by this Action The Court agreéd that the Action would lie after an acquittal upon an Indictment for a greater or lesser Trespass The like for citing another into the Spiritual Court without cause 3 Ass 13. 1 Rol. Abr. 112. pl. 9. Postea F. N. B. 116. D. 7 E. 4. 30. 10 H. 4. Fitz. Conspiracy 21. 13. 3 E. 3. 19. The Defendants Council consented to wave the Demurrer and plead and go to Tryal The King versus Turvil The King presented being intituled by a Simoniacal Contract his Presentee shall not be removed though the Symony is pardoned QUare Impedit The King was intituled to a Presentation by the Statute of 31 Eliz. cap. 6. because of a Simoniacal Contract made by the rightful Patron and he accordingly did present Then comes the Act of General Pardon 21 Jac. cap. 35. by which under general Words it was now admitted that Symony was pardoned In which Act there is a beneficial Clause of Restitution viz. The King giveth to his Subjects all Goods Chattels Debts Fines Issues Profits Amerciaments Forfeitures and Sums of Mony forfeited by reason of any Offence c. done And whether the Kings Presenteé or the Patron had the better Title was the Question This Case was only mentioned now but argued in Michaelmas Term following by Serjeant Jones that the Kings Presenteé is intituled he agreed that Symony was pardoned but not the consequences thereof for 't is not like the Case where a Stroak is given at one time and death happens at another if the Stroak which is the first offence is pardoned before the death of the party that is a Pardon likewise of the Felony for 't is true the Stroak being the cause of the death and that being pardoned all the natural Effects are pardoned with the Cause But legal Consequences are not thus pardoned as if a Man is outlawed in Trespass and the King pardons the Outlawry the Fine remains 6 E. 4. 9. 8 H. 4. 21. 2 Roll. Abr. 179. In this Act of Pardon there are words of Grant but the Presentation is not within the Clause of Restitution for 't is an Interest and not an Authority vested in the King and therefore a thing of another nature than what is intended to be restored because it is higher and shall not be comprehended amongst the general words of Goods and Chattels c. which are things of a lower nature and are all in the personality Cro. Car. 354. Conyers Serjeant argued for the Title of the Patron Ex parte Def. and said that there were three material Clauses in this Act. 1. A Pardon of the Offences therein mentioned in general and particular words 2. That all things not excepted shall be pardoned by general words as if particularly named 3. The Pardon to be taken most favourably for the Subject upon which Clauses it must necessarily follow that this Offence is pardoned and then all the consequences from thence deduced will be likewise pardoned and so the Patron restored to his Presentation for all Charters of Restitution are to be taken favourably Pl. Com. 252. The Presentation vests no legal Right in the Presentee for in the Case of the King 't is revocable after Institution and before Induction Co. Lit. 344. b. So likewise a second Presentation will repeal the first Rolls 353. And if the Kings Presentee dies before Induction that is also a Revocation if therefore the Party hath no legal Right by this Presentation and the King by the Simony had only an authority to present and no legal Interest vested then by this Act he hath revoked the Presentation and the right Patron is restored to his Title to present The Court were all of Opinion absente Ellis That the Kings Presentee had a good Title and by consequence the Patron had no right to Present this turn for here was an Interest vested in the King like the Case where the King is intituled to the Goods of a Felo
and yet it was objected that there he was a Iudge Quaere Brook 204. March 117. for which Reasons he prayed Iudgment for the Plaintiff Curia But the whole Court were of Opinion that the bringing of this Action was a greater Offence that fining of the Plaintiff and committing of him for Non-payment and that it was a bold attempt both against the Government and Iustice in general The Court at the Old-Bayly had Iurisdiction of the Cause and might try it and had power to punish a Misdemeanour in the Iury they thought it to be a Misdemeanour in the Iury to acquit the Prisoners which in truth was not so and therefore it was an Error in their Iudgments for which no Action will lie How often are Iudgments given in this Court reversed in the Kings Bench And because the Iudges have been mistaken in such Iudgments must that needs be against Magna Charta the Petition of Right and the Liberties of the Subject These are mighty words in sound but nothing to the Matter There hath not béen one Case put which carries any resemblance with this those of Iustices of the Peace and Mayors of Corporations are weak instances neither hath any Authority been urged of an Action brought against a Iudge of Record for doing any thing quatenus a Iudge That Offences in Iury-men may be punished without Presentment is no new Doctrin as if they should either eat or drink before they give their Verdict or for any contempt whatsoever but 't is a new Doctrin to say that if a Fine be set on a Iury-man at the Old-Bayly he hath no remedy but to pay it for a Certiorari may be brought to remove the Order by which it was imposed and it may be discharged if the Court think fit As to what hath been Objected concerning the Liberty of the Subject that is abundantly secured by the Law already a Iudge cannot impose upon a Iury for giving their Verdict contrary to Evidence if he doth any thing unjustly or corruptly complaint may be made to the King in whose Name Iudgments are given and the Iudges are by him delegated to do Iustice but if there be Error in their Iudgments as here 't is void and therefore the Barons of the Exchequer might refuse to issue Process upon it and there needs no Writ of Error for the very Estreats will be vacated Though the Defendants here acted erroneously yet the contrary Opinion carried great colour with it because it might be supposed very inconvenient for the Iury to have such liberty as to give what Verdicts they please so that though they were mistaken yet they acted judicially and for that Reason no Action will lie against the Defendant and Iudgment was given accordingly The Case of the Warden of the Fleet. COmplaint was made by Serjeant Turner on the part of the Parishioners of St. Brides London against the Warden of the Fleet and his Prisoners for that he suffered several of them to be without the Walls of his Prison in Taverns and other Houses adjoyning to the Prison and fronting Fleet-Ditch where they committed Disorders and when the Constable came to keep the Peace and to execute a Warrant under the Hand and Seal of a Iustice of Peace they came in a tumultuous manner and hindered the execution of Iustice and rescued the Offenders and often beat the Officers the Warden often letting out 20 or 30 of his Prisoners upon any such occasion to inflame the Disorder It was prayed therefore That this Court to which the Prison of the Fleet doth immediately relate might give such Directions to the Warden that these Mischiefs for the future might be prevented and that the Court would declare those Houses out of the Prison to be subject to the Civil Magistrate The Court were all of Opinion but Iustice Atkins Curia who doubted that nothing can properly be called the Prison of the Fleet which is not within the Walls of the Prison and that the Warden cannot pretend an exemption from the Authority of the Civil Magistrate in such places as are out of the Prison Walls though Houses may be built upon the Land belonging to the Fleet for the preservation of the Kings Peace is more to be valued than such a Private Right But Iustice Atkyns said if such places were within the Liberties of the Fleet he would not give the civil Magistrate a Iurisdiction in prejudice of the Warden but thought it might be fit for the Court to consider upon what reason it was that the Warden of the Fleet applied such Houses to any other uses than for the benefit of the Prisoners whereupon the Court appointed the Prothonotaries to go thither and give them an account of the matter and they would take farther Order in it St. Mary Magdalen Bermondsey Church in Southwark In Scaccario Rate for Building a Church shall be set by the Parishioners Jones 89. Mod. Rep. 236. IN a Prohibition it was the Opinion of the whole Court That if a Church be so much out of Repair that 't is necessary to pull it down and that it cannot be otherwise repaired that in such case upon a general warning or notice given to the Parishioners much more if there be notice given from House to House the major part of the Parishioners then present and meeting according to such notice may make a Rate for pulling down of the Church to the Ground and Building of it upon the old Foundation and for making of Vaults where they are necessary as they were in this Church by reason of the springing Water and though the Rate be higher than the Mony paid for doing all this yet 't is good and the Churchwardens are chargeable for the Overplus they not being able to compute to a Shilling That if any of the Parishioners refuse to pay their Proportion according to the Rate they may be Libelled against in the Spiritual Court and if the Libel alledge the Rate to be pro reparatione Ecclesiae generally though in strictness Ecclesia contains both the Body and Chancel of the Church yet by the Opinion both of the Court of Common Pleas and of the Exchequer It shall be intended that the Rate was only for the Body of the Church but in this Case it was made appear clearly that the Rate was only for the Body and that the Minister was at the charge of the Chancel And both Courts agreed That when a Prohibition is moved and desired on purpose to stop so good a Work as the Building a Church the Court will not compel the Parties to take Issue upon the Suggestion when upon examination they find it to be false and therefore will not grant a Prohibition for if the Rate be unduly imposed the Party grieved hath a Remedy in the Spiritual Court or may Appeal if there be a Sentence against him The Bishop or his Chancellor cannot set a Rate upon a Parish but it must be done by the Parishioners themselves
concluded that he had not paid it and therefore they would not admit him to wage his Law without bringing sufficient Compurgators to swear that they believed he swore Truth but such not appearing the Defendant defecit de Lege and Iudgment had been given against him but he offered to bring the Mony recovered and the Costs into the Court and to go to a new Tryal it being a very hard Case upon him at the former Trial where the Demand was of a Quit-Rent of 18 d. per annum the Defendant promised that if the Plaintiff would shew his Title and satisfie him that he had a Right to demand it he would pay him the Rent and at the Tryal express Oath was made of a Promise to pay upon which the Verdict was obtained whereas it was then urged that the Freehold would come in question upon that Promise and so the inferior Court could have no Iurisdiction And afterwards the Chief Iustice said that it hath béen adjudged in the Kings Bench that an inferior Court cannot hold Plea on a quantum meruit for Work done out of the Iurisdiction though the Promise be made within and that he knew where a Person of Quality intending a Marriage with a Lady presented her with a Iewel and the Marriage not taking effect he brought an Action of Detinue against her and she taking it to be a Gift offered to wage her Law but the Court was of Opinion that the property was not changed by this Gift being to a specifical intent and therefore would not admit her to do it Quod nota Styleman versus Patrick AN Action on the Case was brought by the Plaintiff against the Defendant for eating of his Grass with his Sheep Costs allowed so that he could not in tam amplo modo enjoy his Common there was a Verdict for the Plaintiff and it was now moved that he should have no more Costs than Damages because this was a Trespass in its own nature and the Iudge of Assise had not certified that the Title of any Land was in question Bur the Court were all of Opinion Curia that this Case was not within the Statute For it was not a frivolous Action because a little damage done to one Commoner and so to twenty may in the whole make it a great Wrong if the Cause were frivolous the Iudge of Assize may mark it to be such by vertue of the Statute of 43 Eliz. cap. 6. and then there shall be no more Costs than Damages and though in this Case the Plaintiff hath in his Declaration set out a Title to his Common yet the Title of the Land cannot possibly come in question and therefore not to be certified as in Cases of Trespas neither is there any need of a Certificate if it appears by the Pleading that the Title of the Land is in question The Court being against the Defendant as to the Costs his Council then moved in Arrest of Iudgment because the Plaintiff sets forth his Right to the Common only by way of Recital with a cumque etiam Postea c. that he had a Right to Common in such a place sed non allocatur for 't is affirmative enough and afterwards he is charged with doing the Plaintiff damage and so the Case is not like to an Action of Trespas quare cum he did a Trespass for there the sense is imperfect DE Term. Sancti Hill Anno 28 29 Car. II. in Communi Banco James versus Johnson IN Trespass Que Estate where 't is pleadable Mod Rep. 231. the Defendant justified by a Prescription to have Toll and Issue being joyned thereupon the Iury found a special Verdict in which the Case upon the Pleadings was viz. Before the dissolution of Priories the Mannor now in the possession of the Defendant was parcel of the Priory of B. which came to the Crown by the said dissolution and the King made a Grant thereof to Sir Jervas Clifton in Fee together with the said Toll adeo plene as the Prior had it and the Defendant having brought down a Title by several mesne Assignments claims by vertue of a Lease from Sir Jervas for seven years then in being alledging that the said Sir Jervas and all those whose Estate he had might take Toll and whether this Pleading by a Que Estate to have Right of Toll was good in Law the Iury doubted Baldwin Serjeant for the Plaintiff Ex parte Quer. argued that the Iustification was not good because there are two sorts of Toll viz. Toll through and Toll traverse and is in the Kings High Way and the other in a Man 's own Soil and it doth not appear for which the Defendant hath justified If it be for the first then he ought to shew that he did make a Causeway or some other thing that might be an advantage to the Passengers to entitle himself to a Prescription but if it be for the other then he must also shew it was for passing upon his Soil which implies a Consideration 22 Assize Kelw. 148. Pl. Com. 236. Lord Berkley's Case 1 Cro. 710. Smith versus Sheppard by which Cases it appears that the justification ought to be certain Then as to the point in Question he said that Toll cannot be appurtenant to a Mannor and so the Pleading by a Que estate is not good but if that should be admitted yet the Mannor being vested in the Crown by the dissolution the Toll then became in gross and could never after be united to the Mannor or appurtenant thereunto But it was argued for the Defendant by Maynard Serjeant and the whole Court were clear of Opinion that the Issue was upon a particular point and the Title was admitted and that nothing remained in question but the Point in pleading And as to what had been objected That Toll cannot belong to a Mannor 't is quite otherwise for an Advowson a Rent a Toll or any Profit apprender may be appurtenant to it T is true a Man cannot prescribe by a Que Estate of a Rent Advowson Toll c. but he may of a Mannor to which these are appendant 't is likewise true that if the Defendant had said this was Toll for passing the Highway he must shew some cause to entitle himself to the taking of it as by doing something of publick advantage But this general way of pleading is the most usual and so are the Presidents and it ought to come on the other side and to be alledged that the Defendant prescribed for Toll in the High-way and in this Case though the Mannor came to the Crown the Toll remained appurtenant still and so it continued when it was granted out The difference is between a thing which was originally a Flower of the Crown and other things which are not as Catalla Felonum c. if such come again to the King they are merged in the Crown but 't is otherwise in cases of a Leet Park Warren
likewise addressed to my Lord as before making several Protestations of his Innocency But having once in a Passion said that he scorned to submit My Lord for that Reason would not remit the Damages it was therefore moved for a new Tryal upon these Reasons 1. Because the Witnesses who proved the Words were not Persons of Credit and that at the time when they were alledged to be spoken many Clergy-men were in Company with the Defendant and heard no such Words spoken 2. It was sworn that one of the Iury confessed that they gave such great damages to the Plaintiff not that he was damnified so much but that he might have the greater opportunity to shew himself noble in the remitting of them 3. And which was the principal Reason because the Damages were excessive Curia The Court delivered their Opinions seriatim and first The Chief Iustice North said In Cases of Fines for criminal Matters a Man is to be fined by Magna Charta with a salvo contenemento suo and no Fine is to be imposed greater than he is able to pay but in Civil Actions the Plaintiff is to recover by way of compensation for the damages he hath sustained and the Iury are the proper Iudges thereof This is a Civil Action brought by the Plaintiff for Words spoken of him which if they are in their own nature actionable the Iury ought to consider the damage which the Party may sustain but if a particular Averment of special damages makes them actionable then the Iury are only to consider such damages as are already sustained and not such as may happen in futuro because for such the Plaintiff may have a new Action He said that as a Iudge he could not tell what value to set upon the Honour of the Plaintiff the Iury have given 4000 l. and therefore he could neither lessen the Sum or grant a new Trial especially since by the Law the Iury are Iudges of the damages and it would be very inconvenient to examine upon what account they gave their Verdict they having found the Defendant guilty did believe the Witnesses and he could not now make a doubt of their Credibility Wyndham Iustice accorded in omnibus Atkins Iustice contra That a new Trial should be granted for 't is every days practice and he remembred the Case of Gouldston and Wood in the Kings Bench where the Plaintiff in an Action on the Case for Words for calling of him Bankrupt recovered 1500 l. and that Court granted a new Tryal because the damages were excessive The Iury in this Case ought to have respect only to the damage which the Plaintiff sustained and not to do an unaccountable thing that he might have an opportunity to shew himself generous and as the Court ought with one Eye to look upon the Verdict so with the other they ought to take notice what is contained in the Declaration and then to consider whether the Words and Damages bear any proportion if not then the Court ought to lay their hands upon the Verdict 'T is true they cannot lessen the damages but if they are too great the Court may grant a new Tryal Scroggs Iustice accorded with North and Wyndham that no new Tryal can be granted in this Cause He said that he was of Council with the Plaintiff before he was called to the Bench and might therefore be supposed to give Iudgment in favour of his former Client being prepossess'd in the Cause or else to shew himself more signally just might without considering the matter give Iudgment against him but that now he had forgot all former relation thereunto and therefore delivered his Opinion that if he had been of the Iury he should not have given such a Verdict and if he had been Plaintiff he would not take advantage of it but would overcome with Forgiveness such Follies and Indiscretions of which the Defendant had been guilty but that he did not sit there to give Advice but to do Iustice to the People He did agrèe that where an unequal Tryal was as such must be where there is any Practice with the Iury in such Case 't is good reason to grant a new Tryal but no such thing appearing to him in this Case a new Tryal could not be granted Suppose the Iury had given a scandalous Verdict for the Plaintiff as a Penny Damages he could not have obtained a new Trial in hopes to increase them neither shall the Defendant in hopes to lessen them and therefore by the Opinion of these three Iustices a new Tryal was not granted Afterwards in this Term Serjeant Maynard moved in Arrest of Iudgment and said that this Action was grounded upon the Statute of R. 2. Which consists of a Preamble reciting the Mischief and of the Enacting part in giving of a Remedy and that the Defendants Case was neither within the Mischief or the Remedy This Statute doth not create any Action by way of particular design and if the matter was now Res integra much might be said that an Action for Damages will not lye upon this Statute for the Statute of Westm 2. appoints that the Offender shall suffer imprisonment until he produces the Author of a false Report Ca. 33. and the Statute of 2 R. 2. which recites that of Westm 2. gives the same punishment and the Action is brought qui tam c. and yet the Plaintiff only recovers for himself It was usual to punish Offenders in this kind in the Star Chamber as in the * Earl of Northampton's Case where one Goodrick said of him That he wrote a Book against Garnet and a Letter to Bellarmine 12 Co. 132. intimating that what he wrote in the Book was not his Opinion but only ad captandum populum which was a great disgrace to him in those days being as much as to say he was a Papist Cro. Eliz. But the Serjeant would not insist upon that now since it hath been ruled that where a Statute prohibits the doing of a thing which if done might be prejudicial to another in such case he may have an Action upon that very Statute for his Damages But the ground on which he argued was that these words as spoken are not within the meaning of the Act for they are not actionable 1. Because they are no scandal and words which are actionable must import a great Scandal which no circumstance or occasion of speaking can excuse and if they are scandalous and capable of any mitigation by the precedent discourse the pleading of that matter will make them not actionable and for this the Lord * 4 Co. Cromwel's Case is a plain Authority the Words spoken of him were You like those that maintain Sedition against the King's Person the occasion of speaking of which was to give an account of his favouring the Puritan Preachers which was all that was intended by the former discourse for that Lord had approved a Sermon which was preached by a Parson
special Verdict He who sues in an Inferior Court is bound at his peril to take notice of the Bounds and Limits of that Iurisdiction and if the Party after a Verdict below prays a Prohibition and alledges that the Court had no Iurisdiction a Prohibition shall be granted and 't is no Estoppel that he did not take advantage of it before 1 Roll. Abr. 545. But Iustice Atkins and Scroggs were of another Opinion they agreed that if an Action be brought in an Inferior Court if it be not said to be infra Jurisdictionem Curiae they would never presume it to be so but rather to be without if not alledged to be within the Iurisdiction and here in the Plea 't is not shewn at all so that as the Case stands upon the Plea the Proceédings are coram non Judice and there is no legal Authority to warrant them and by consequence the Officer is no more to be excused than the Party because also 't is in the Case of a particular Iurisdiction And so it hath béen adjudged upon an Escape brought against an Officer of an Inferior Court wherein the Plaintiff declared that he had brought an Action upon a Bond against S. in the Court of Kingston and that he had Iudgment and Execution and the Defendant suffered him to escape this Declaration did not charge the Defendan because the Bond was not alledged to be made infra Jurisdictionem Curiae for though such an Action is transitory in its nature yet the Proceedings in an inferior Court upon it are coram non Judice if it doth not appear to be infra Jurisdictionem 1 Roll. Abr. 809. though in the Case of a general Iurisdiction it might be otherwise But here the Rejoynder doth help the Plea for the Plaintiff having replied that the Trespass was committed out of the Iurisdiction and the Defendant having rejoyned that he had alledged in his Declaration below that the Trespass was done within the Iurisdiction 't is now all one Plea and the Plaintiff hath confessed it by his Demurrer so that in regard it was alledged below and admitted there 't is a good Plea both for Officer and Party and the Plaintiff cannot now take advantage of it but is concluded by his former admittance and it shall not be enquired now whether true or false And as to the taliter processum fuit they all held it well enough and that there was no necessity of setting out all the Proceedings here as in a Writ of Error And as to the last Exception 't is said that the Burrough of Warwick is antiquus Burgus and that the Court is held there secundum consuetudinem which is well enough Jones's Case Common Pleas cannot grant Habeas Corpus in Criminal Cases IT was moved for a Habeas Corpus for one Jones who was committed to New Prison by Warrant from a Iustice of Peace for refusing to discover who intrusted him with the keeping of the Keys of a Conventicle and for that he had been instrumental to the Escape of the Preacher he was asked by the Iustice to give Security for his Good Behaviour which he also refused and thereupon was committed The Chief Iustice doubted that a Habeas Corpus could not be granted in this Case because it was in a criminal Cause of which the Court of Common Pleas hath no Iurisdiction and that seemed to be the Opinion of my Lord Coke Vaugh. 157. 2 Inst 53. 2 Inst 55. where he saith it lies for any Officer or priviledged Person of the Court. There are three sorts of Habeas Corpus in this Court one is ad respondendum Mod. Rep. 235. which is for the Plaintiff who is a Suitor here against any Man in Prison who is to be brought thereupon to the Barr and remanded if he cannot give Sureties There is another Habeas Corpus for the Defendant ad faciend ' recipiend ' as to this the same Iurisdiction is here as in the Court of Kings Bench if a person be near the Town by the course of the Court he may be brought hither to be charged and then the Habeas Corpus is returnable immediate but if he be remote it must then be returnable in the Court at a certain day these are the Habeas Corpus's which concern the Iurisdiction of this Court and are incident thereunto There is another which concerns Priviledge when the Party comes and subjects himself to the Court to be either bailed or discharged as the Crime is for which he stands charged and if he be priviledged this Court may examine the Case and do him right if a private man be committed for a criminal Cause we can examine the Matter and send him back again Before King James's Reign there was no Habeas Corpus but recited a Priviledge as in the Case of Priviledge for an Attorny so that if this Court cannot remedy what the Party complains 't is in vain for the Subject to be put to the trouble when he must be sent back again neither can there be any failure of Iustice because he may apply himself to a proper Court and of the same Opinion were Wyndham and Scroggs But Iustice Atkins was of another Opinion for he could see no Reason why there should not be a Right to come to this Court as well as to the Kings Bench. And that Vaughan Wild and Archer Iustices were of Opinion that this Court may grant a Habeas Corpus in other Cases besides those of Priviledge Afterwards the Prisoner was brought to the Court upon this Habeas Corpus but was remanded because this Court would not take Sureties for his Good Behavior The Chief Iustice said that when he was not on the Bench he would take Sureties as a Iustice of Peace And Monday late Secondary informed him that Iustice Wild when he sate in this Court did once take such Sureties as a Iustice of Peace Anonymus IT was the Opinion of the Chief Iustice North In Replevin both are Actors that in a Replevin both Parties are Actors for the one sues for Damages and the other to have the Cattle and there the place is material for if the Plaintiff alledges the taking at A. and they were taken at B. the Defendant may plead Non cepit modo forma but then he can have no Return for if he would have a Retorn ' Habend ' he must deny the taking where the Plaintiff hath laid it and alledge another place in his Avowry Sir Osborn Rands versus Tripp THE Plaintiff was a Tobacconist and lived near Guild-Hall London he married the Daughter of the Defendant New Trial granted who was an Alderman in Hull and had 400 l. Portion with her after the Marriage the Defendant spoke merrily before thrée Witnesses That if his Son-in-Law would procure himself to be Knighted so that his Daughter might be a Lady he would then give him 2000 l. more and would pay 1000 l. part thereof presently upon such Knighthood and the
quo and 't is in nature of a Contract raised by Law By the Words of the Capias ad satisfaciend ' it doth appear that the design of the Writ is to enforce the Payment of the the debt by the Imprisonment of the Defendant The Sheriff thereupon returns that he hath taken the Body and that the Defendant hath paid the Mony to him for which reason he discharged him and for this Return he was amerced not because he discharged the Party but because he had not brought the Mony into the Court for the Law never intended that a Man should be kept in Prison after he had paid the debt In this Case the Defendant can have no remedy to recover it again of the Marshal because it was not a bare Payment to him but to pay it over again to the Plaintiff and likewise in consideration that he should be discharged from his Imprisonment If it should be objected by the Marshal that the Plaintiff hath an Action of Escape against him and likewise by the Plaintiff that he did not make the Gaoler his Steward or Bayliff to receive his Mony Answ The Gaoler is made his Bayliff to keep the Party in Execution and it would be very hard that when the Prisoner will lay down his Mony in discharge of the Debt that the Gaoler should not have full power to discharge him If he had come in Michaelmas-Term after the long Vacation and informed the Court that he had offered to pay the Execution Mony to the Marshal and that he would not take it and that the Plaintiff could not be found the Court would have made a Rule to help him Mr. Holt contra If the Payment had béen good to the Sheriff or Marshal yet 't is not pleadable to the second Execution because 't is matter in fact That which hath been objected that the Party shall plead to a second Execution that his Goods were taken by a former Fieri Facias cannot be for no such Plea can be good because by that Writ the Sheriff hath express Authority to levy the Mony and the Plea is not Payment to the Sheriff but that the Mony was levyed by him by virtue of the Writ which ought to be brought into the Court and an Audita Querela lies against the Plaintiff and then the Defendant is to be bailed 1 Leon. 141. Askew versus the Earl of Lincoln Jones and Rainsford were of Opinion that the Defendant might have remedy against the Marshal to recover his Mony again and that the Payment to him was no discharge to the Plaintiff at whose Suit he was in Execution But Iustice Wyld was of another Opinion Quaere The Lord Marquess of Dorchester's Case In Communi Banco IN a Scandalum Magnatum Visne not changed in a Scandalum Magnatum Serjeant Pemberton moved to have good Bail which the Court denied and said that in such Case Bail was not requirable but notwithstanding the Defendant consented to put in 50 l. Bail And then upon the usual Affidavit moved to change the Visne the Action being laid in London which was opposed by the Serjeant who desired that it might be tried where it was laid but he said in this Case that the Visne could not be changed 1. Because the King is a Party to the Suit for 't is tam pro Domino Rege quam pro seipso 2. The Plaintiff is a Lord of Parliament which is adjourned and will meet and therefore it would be inconvenient to try the Cause in the Country since the Service of the King and Kingdom both require his Attendance here and he said that upon the like Motion in B. R. between the Lord Stamford and Needham the Court would not change the Visne North Chief Iustice said that he always took it as a current Opinion that in a Scandalum Magnatum the Visne could not be changed for since it was in the nature of an Information it being tam quam 't was advisable whether it was not within the Statute of 21 Jac. which doth appoint Informations to be tried in their proper Counties But Iustice Atkins inclined that the Visne might be changed for though by the Wisdom of the Law a Iury of the Neighbourhood are to try the Cause yet in point of Iustice the Court may change the Visne to which it was objected that then there would be no difference between local and transitory Actions Actions of Debt and Accompt shall be brought in their proper Counties 6 R. 2. and it was agreed that an Attorney is sworn to bring Actions no where else But the Court not agréeing at last the Defendant was willing that the Cause should be tried in London if the Plaintiff would consent not to try it before the first Setting in the next Term. And as to that reason offered why the Visne should not be changed because the Plaintiff was a Lord of Parliament Iustice Atkins said that did not satisfie him it might be a good ground to move for a Trial at the Barr to which it was answered that in the Case of the Earl of Shaftsbury the Court would not grant a Tryal at the Barr without the Consent of the Defendant The Visne was not changed Beaver versus Lane COvenant made to Baron and Feme Covenant to Baron and Feme the Baron alone may bring the Action the Husband alone brings the Action quod teneat ei conventionem secundum formam effectum cujusdam Indenturae inter Querentem ex una parte Defendentem ex altera parte confect ' and this was for not repairing his House After Verdict for the Plaintiff it was moved in Arrest of Iudgment because of this variance But the Court Ordered that the Plaintiff should have his Iudgment for the Indenture being by Baron and Feme it was therefore true that it was by the Baron and the Action being brought upon a Covenant concerning his Houses and going with them though it be made to him and his Wife yet he may refuse quoad her and bring the Action alone And the Chief Iustice said that he remembred an Authority in an old Book that if a Bond be given to Baron and Feme the Husband shall bring the Action alone which shall be looked upon to be his refusal as to her Calthrop versus Phillips THE Question was Supersedeas must be delivered by the old Sheriff to the new one Mod. Rep. 222. in regard a Supersedeas is not returnable in the Court whether the old Sheriff is bound to deliver it over to the new one or no and it was urged that it ought not because the old Sheriff is to keép it for his indempnity and he may have occasion to plead it But on the other side it was insisted by Serjeant George Strode that it ought to be delivered to the new Sheriff and that there was a Writ in the Register which proved it fol. 295. and if it should be otherwise these inconveniences would follow 1. It would be
could not possibly secure them in his own House without subjecting himself to an Action and an Award that one Man shall take the Goods of another is void But if the Plea is not good yet if the Vmpirage be naught Iudgment is to be given for the Defendant for the advantage is saved to him upon the Demurrer And as to that the Vmpirage is but of one side for the Plaintiff is to do nothing nor is the Defendant to be acquitted of all Suits To which it was answered by the Plaintiff's Council That the Vmpirage was of both sides for there being Suits depending 't is awarded that each shall bear his own Charges which is a benefit to the Defendant for otherwise seing the right was in the Plaintiff the Defendant should have paid the Plaintiffs Costs as well as his own for which he cannot now sue without forfeiting his Bond Curia advisare vult Squibb versus Hole THE Plaintiff brought an Action of Escape Escape Action of Escape the Process was upon Bond not made within the Jurisdiction of an Inferiour Court and therefore no Escape and declares That he prosecuted one J. S. in the court of Ely upon a Bond made infra Jurisdictionem of that Court upon which he was taken and the Defendant suffered him to Escape Vpon Not Guilty pleaded the Iury found a special Verdict to this effect viz. That there was such a Bond upon which there was such a prosecution and such an Escape as in the Declaration but they find farther that this Bond was not made infra Jurisdictionem Curiae Maynard Serjeant who Argued for the Plaintiff said that this Action was commenced in an Inferiour Court upon a Bond which the Plaintiff sets forth to be infra Jurisdictionem Curiae and that the Defendant was Arrested and suffered to Escape and whether if in truth the Bond was not made infra Jurisdictionem an Action of Escape would lye or whether all the proceédings are coram non Judice was the doubt He took a difference where an Inferiour Court hath an Original Iurisdiction of the Cause and hath conusance of such a Suit as is brought there for in such Cases the proceedings are not extra-judicial but if an Action is brought where properly no Action doth lye all the proceedings there are coram non Judice At the Common Law one who had a particular Iurisdiction to hold Pleas within a Liberty could not hold any Plea of a thing which did arise out of the Liberty for though it was transitory in its nature yet being alledged not within his Iurisdiction it was ill 2 Inst 231. But when the cause of Action arises infra Jurisdictionem that gives them Authority to proceed and therefore it would be hard that the Iudge and Officer should be punished by a construction to make all extra judicial when they have no possible way of finding whether in truth the Cause did arise within the * Post Crowder and Goodwin Iurisdiction of the Court or not But the Officer is bound to obey the Process of the Court if it appear as in this Case that they had conusance of it the Iudge is likewise bound to grant the Process otherwise he is subject to the Plantiffs Action for his refusal In some Cases the Plaintiff himself may not know where the Bond was made as if he be Executor of the Obligee c. Besides in this Case 't is set forth That in the Action below the Defendant pleaded non est factum and so had admitted the Iurisdiction or at least had waived it and it would be an insufferable mischief if after all this labour and charge the Defendant might avoid all again North Chief Iustice said That if this Cause had been tryed before him he would have Non-suited the Plaintiff because he had not proved the truth of what he laid down in his Declaration viz. That the Bond was made infra Jurisdictionem Curiae But as to the Matter as it stood upon the special Verdict he inclined that as to the Plaintiff who knew where the Bond was made all the proceedings were coram non Judice but as to the Officer it was otherwise for the Pleint and Process would be a good Excuse for him in an Action of false Imprisonment Judgment And afterwards by the Opinion of three Iudges viz. the Chief Justice Wyndham and Atkyns Iustices Iudgment was given for the Defendant That this was no Escape and that though the Party had admitted the Iurisdiction by his Plea of non est factum below yet that could not give the Court any Iurisdiction which had not any originally in the Cause and the Case of * Roll. Abt. tit Escape 809 pl. 45. Richardson versus Bernard was cited as an Authority in point where the Plaintiff in an Action brought against an Officer declared in Hull upon a Bond made at Hallifax and had Iudgment and Execution and the Defendant escaped And in an Action brought for this Escape the Declaration was held ill because it did not alledge the Bond to be made infra Jurisdictionem Curiae Ellis Iustice of a contrary Opinion in omnibus Sams versus Dangerfield THE Plaintiff being Collector of the Hearth-Mony Departure brought an Action of Debt upon a Bond against his Sub-Collector conditioned to pay such Sums as he should receive within 14 days after receipt at such a place in the City of Worcester as the Plaintiff should appoint The Defendant pleads payment The Plaintiff assigns a breach in non-payment of such a Sum received at a place by him appointed The Defendant rejoyns that the Plaintiff appointed no place and the Plaintiff demurr'd And after Argument for the Plaintiff by Jones Serjeant this was adjudged a departure because the Defendant ought to have pleaded first that he had paid all but such a Sum for which as yet the Plaintiff had appointed no place of payment and Iudgment was given accordingly Smith versus Hall IN an Action brought against the Defendant for false Imprisonment he justified by virtue of a Latitat False Imprisonment doth not lye but an Action on the Case against the Sheriff for refusing sufficient Bail which the Plaintiff agreed in his Replication but farther set forth that after the Arrest and before the Return of the Writ he tendered sufficient Bail which the Defendant refused and Issue was joyned upon the tender which was found for the Plaintiff Newdigate Serjeant moved in Arrest of Iudgment 1. Though it was an Offence in the Defendant who was the Sheriff's Bayliff to refuse good Bail when tendred yet 't is not an Offence within the Statute 23 H. 6. cap. 10. because a Sheriffs Bayliff is not an Officer intended in that Statute neither will this Offence make him a Trespasser ab initio because the taking was by lawfull Process Cro. Car. 196. * Roll. Abr. 2 part 561. pl. 9. Salmon versus Percival The Defendant as Bayliff to the Sheriff is not the proper Officer to
of the next Avoidance was not good because it was made by those who were not Head of the Corporation and it must be void immediately or not at all and Iudgment was given accordingly Threadneedle versus Lynam THere being two Mannors usually let for 67 l. 1 s. 5 d. by the year Lease by a Bishop and more than the old Rent reserved good Mod. Rep. 203. a Bishop lets one of them for 21 years reserving the whole Rent and whether this was a good Lease within the Statute of 1 Eliz. cap. 19. was the Question which depended upon the construction of the Words therein viz. All Leases to be void upon which the old accustomed Rent is not reserved and here is more than the old Rent reserved and this being a private Act is to be taken literally North Chief Iustice agreed that private Acts which go to one particular thing are to be interpreted literally but this Statute extends to all Bishops and so may be taken according to Equity and therefore he and Wyndham and Atkins Iustices held the Lease to be good But this Case was argued when Vaughan was Chief Iustice and he and Iustice Ellis were of another Opinion DE Term. Sancti Mich. Anno 27 Car. II. in Communi Banco Thorp versus Fowle No more Costs than Damages NOTA. In this Case the Court said that since the Statute which gives no more Costs than Damage 't is usual to turn Trespass into Case Cooper versus Hawkeswel Words IN an Action upon the Case for these Words I dealt not so unkindly with you when you stole a Stack of my Corn Per Curiam the Action lies Escourt versus Cole Words IN an Action on the Case for Words laid two ways the last Count was Cumque etiam which is but a recital and dubitatur whether good Sharp versus Hubbard Six Months for proving of a Suggestion THE six Months in which the Suggestion is to be proved must be reckoned according to the Calendar Months and 't is so computed in the Ecclesiastical Court Crowder versus Goodwin Justification by Process out of inferiour Court IN Assault and Battery and false Imprisonment as to the Assault c. the Defendant pleads Not-Guilty and as to the Imprisonment he justifies by a Process out an inferiour Court and upon Demurrer these Exceptions were taken to his Plea 1. The Defendant hath set forth a Precept directed Servienti ad Claven and 't is not said Ministro Curiae 2. 1 Rol. 484. Cro. Car. 254. Dyer 262. b. It was to take the Plaintiff and have him ad proximam Curiam which is not good for it should have beén on a day certain like Adams and Flythe's Case * Cro. Jac. 571. Mod. Rep. 81. where a Writ of Error was brought upon a Iudgment in Debt by Nil dicit in an inferiour Court and the Error assigned was That after Imparlance a day was given to the Parties till the next Court and this was held to be a Discontinuance not being a day certain 3. 'T is not said ad respondend ' alicui 4. Nor that the Action arose infra Burgum 5. The Precept is not alledged to be returned by the Officer To all which it was answered That a Pleint is but a Remembrance and must be short Rast 321. and when 't is entred the Officer is excused for he cannot tell whether 't is infra * Squibb versus Hole antea 29. Jurisdictionem or not And as to the first Exception a Precept may be directed to a private person and therefore Servienti ad Clavem is well enough Then as to the next Exception 't is likewise well set forth to have the Plaintiff ad proximam Curiam for how can it be on a day certain when the Iudge may adjourn the Court de die in diem Then ad respondendum though 't is not said alicui 'tis good though not so formal and 't is no Tort in the Officer but t is to be intended that he is to answer the Plaintiff in the Plaint As to the fourth Exception the Defendant sets forth that he did enter his Plaint secundum consuetudinem Curiae Burgi and when the Plaintiff declared there he shewed that the Cause did arise infra Jurisdictionem And as to the last The Officer is not punishable though he do not return the Writ The end of the Law is that the Defendant should be present at the day and if the Cause should be agreed or the Plaintiff give a Release when the Defendant is in custody no Action lies against the Officer if he be detained afterwards But the Chief Iustice doubted that for the second Exception the Plea was ill for it ought to be on a day certain and likewise it ought to be alledged infra Jurisdictionem But the other threé Iustices held the Plea to be good in omnibus and said that the inferior Court had a Iurisdiction to issue out a Writ and the Officer is excusable though the cause of Action did not arise within the Iurisdiction which ought to be shewn on the other side And so Iudgment was given for the Defendant Snow and others versus Wiseman Traverse necessary where omitted is substance TRespass for taking of his Horse The Defendant pleads that he was seised of such Lands and intitles himself to an Herriot The Plaintiff replies that another person was jointly seised with the Defendant Et hoc paratus est verificare The Defendant demurs generally because the Plaintiff should have traversed the sole Seisin But it was said for him that the sole Seisin néed not be traversed Sid. 300. because the matter alledged by him avoids the Barr without a Traverse In a Suggestion upon a Prohibition for Tythes the Plaintiff entituled himself by Prescription under an Abbot and shews the Vnity of Possession by the Statute of 31 H. 8. by which the Lands were discharged of Tythes Yelv. 231. Pl. Com. 230. 231. The Defendant pleads that the Abbey was founded within time of Memory and confesseth the Vnity afterwards and the Plea was held good for he néed not traverse the Prescription because he had set forth the Foundation of the Abbey to be within time of Memory which was a sufficient avoiding the Plaintiffs Title Yelv. 31. The Plaintiff therefore having said enough in this Case to avoid the Barr if he had traversed it also it would have made his Replication naught Cro. Jac. 221. like the Case of * Bedel and Lull where in an Ejectment upon a Lease made by Elizabeth the Defendant pleads that before Elizabeth had any thing in the Lands James was seised thereof in Fee and that it descended to his Son and so derives a Title under him and that Elizabeth was seised by Abatement The Plaintiff confesses the Seisin of James but that he devised it to Elizabeth in Fee and makes a Title under her absque hoc that she was seised by Abatement and upon a Demurrer the
after the Partition 2. The Rejoynder is a departure from the Plea which is that the Plaintiff never had any thing but joyntly with others and the Rejoynder is that at the time of the conversion he was joyntly possessed which is a manifest difference in point of time and such as will make a Departure 33 H. 14. Bro. Departure 28. 13. Ex parte Def. It was argued by Serjeant Hopkins for the Defendant that the Replication was not good for the Plaintiff therein had alledged a Partition by Deed and doth not say hic in Curia prolat̄ And in all Cases where a Man pleads a Deed by which he makes himself either party or privy he must produce it in Court As where the Defendant justifies in Trespass that before the Plaintiff had any thing One Purfrey was seised in Fee of the place where c. And by Indenture c. demised it to Corbet excepting the Wood c. Habendum for the Life of Ann and covenanted quod licitum foret for the said Corbet to take House-boot c. That he assigned his Interest to Ann and that the Defendant as her Servant took the Trees and upon Demurrer the Plea was held naught because though a Servant having justified by force of a Covenant he did not shew the Indenture 2 Cro. 291. Purfrey versus Grimes 6 Rep. Bellamy's Case 1 Leon. 309. Rol. Rep. 20. If a thing will pass without a Deed yet if the Party pleads a Deed and makes a Title thereby he must come with a * profert hic in Curia As to the Objection That there was a Departure he argued to the contrary For the Defendant in his Rejoynder insists only on that which was most material and the Plaintiff in his Replication had given him occasion thus to Rejoyn and though he had left out some of the time mentioned in the Bar yet the would hurt the Pleadings because a fair Issue was tendred for if at the time of the conversion he was joyntly seised he could not be entituled to the Action alone Judgment And afterwards in Trinity-Term following the Chief Iustice delivered the Opinion of the Court That the Plea was good in Barr though pleaded in Abatement and the Defendant hath election to plead either in Barr or Abatement the nature of a Plea in Abatement is to intitle the Plaintiff to a better Writ but here the Defendant shews that the Plaintiff hath no cause of Action and so it shall be taken to be in Barr And it hath been expressly resolved That where the Plea is in Abatement if it be of necessity that the Defendant must disclose matter of barr he shall have his election to take it either by way of Barr or Abatement 2 Roll. Rep. 64. Salkil versus Shilton So where Waste was brought in the tenet the Tenant pleads a Surrender to the Lessor and demands Iudgment if he should be charged in the tenet because it should have been in the tenuit and this was held a good Plea 10 H. 7.11 Whereupon Iudgment was given for the Defendant the Chief Iustice at first doubting about the Departure and advised the Plaintiff to wave his Demurrer and to take issue upon payment of Costs Daws versus Harrison THE Plaintiff intitles himself as Administrator to Daws Administration pleaded and not loci istius ordinarius good and shews that Administration was granted to him by the Official of the Bishop of Carlisle but did not alledge him to be loci istius Ordinarius And Jones Serjeant demurred to the Declaration because it did not appear that the Official had any Iurisdiction Pl. Com. 277. a. 31. H. 6. 13. Fitz. Judg. 35. 22 H. 6. 52. 36 H. 6. 32 33. Sed non allocatur For the whole Court were of Opinion That the Declaration was good and that he shall be intended to have Iurisdiction but if it had been in the Case of a Peculiar Cro Jac. 556. Palm 97. Sid. 322. it cannot be intended that they have any authority unless set forth And so Iudgment was given for the Plaintiff Mason versus Caesar IN Trespass for pulling down of Hedges Commoner may abate Hedges made upon his Common the Defendant pleads that he had right of Common in the place where c. and the Hedges were made upon his Common so that he could not in ea parte enjoy his Common in tam amplo modo c. and so justifies the pulling them down And they were at issue whether the Defendant could enjoy the Common in tam amplo modo c. and there was a Verdict for the Defendant and Iudgment being staied 'till moved on the other side Scroggs Serjeant moved in Arrest of Iudgment because the Plea was ill and the Issue frivolous for 't is impossible that he should have Common where the Hedges are 5 Rep. 100. 9 Rep. 55. And therefore the Defendant ought to have brought an Action upon the Case or a quod permittat He cannot abate the Hedges though he might have pulled down so much as might have opened a Way to his Common 2 Cro. 195 229. The Lord hath an Interest in the Soil and a Commoner hath no authority to do any thing but to enter and put in his Beasts and not to throw down Quick-Set Hedges for that is a shelter to his Beasts But the Court were of Opinion That the Defendant might abate the Hedges for thereby he did not meddle with the Soil but only pulled down the erection and the Book of 29 E. 3. 6. was express in this point Vide 17 H. 7. 10. 16 H. 7. 8. 33 H. 6. 31. 2 Ass 12. And nothing was said concerning the Plea and so the Defendant had Iudgment Hocket and his Wife versus Stiddolph and his Wife Verdict cured a bad Declaration IN an Action of Assault and Battery brought by the Plaintiff and his Wife against the Defendant and his Wife the Iury found quoad the beating of the Plaintiffs Wife only that the Defendants are Guilty and quoad resid ' they find for the Defendants And it was moved in arrest of Iudgment by Scroggs Serjeant That the Declaration is not good because the Husband * Yelv. 106. Drury versus Dennis Sid. 376. joyns with the Wife which he ought not to do upon his own shewing for as to the Battery made upon him he ought to have brought his Action alone and the finding of the Iury will not help the Declaration which is ill in substance and thereupon Iudgment was staied but being moved again the next Term the Court were all of Opinion That the Declaration was cured by the Verdict and so Iudgment was given for the Plaintiff Goodwin qui tam c. versus Butcher AN Information was brought upon the Statute of 32 H. 8. Buying a pretended Title cap. 9. made against buying pretended Titles which gives a Forfeiture of the value of the Land purchased unless the Seller was in possession within a
Toll c. which were first created by the King 9 Co. Abbot de Strata Marcella's Case So that this Toll is not become in gross by the dissolution whereupon Iudgment was given for the Defendant Sir William Turner's Case Amendment not after issue joyned DEbt qui tam c. for 100 l. against Sir William Turner being a Iustice of Peace in London for denying his Warrant to suppress a seditious Conventicle of one Mr. Turner in New-street This Cause was to be tried by Nisi prius this Term before the Chief Iustice And now the Plaintiff moved to amend one Word in the Declaration wherein he was mistaken for he had laid the Meeting to be at Turner's Mansion House and upon Enquiry he understood the place of Meeting was not at his Mansion House but at a little distance from it and so prayed the word Mansion might be struck out But the Chief Iustice said that after Issue joyned Curia and the Cause set down to be tried and this being a penal Statute no President could be shewn of an Amendment in such case and therefore would not make this the first and so Leave was given to the Plaintiff to discontinue upon payment of Costs Brown versus Johnson IN Accompt The Plaintiff declares against the Defendant Time where 't is made parcel of the issue not good for that upon the first of March 22 Car. 2. abinde to the first of May 27 Car. 2. he was his Bayliff and Receiver of 80 Piggs of Lead The Defendant pleads that from the said first day of March 22 Car. 2. to the first day of May 27 Car. 2. he was not the Plaintiffs Bayliff or Receiver of the said 80 Piggs of Lead hoc paratus est verificare To this the Plaintiff demurred and assigned specially for cause that the times from the first of March to the first of May are made parcel of the Issue which ought not to be because the Plaintiff in his Declaration must alledge a time for Form sake but the Defendant ought not to tye him up to such time alledged for he might have said he was not Bayliff modo forma And for this the Case of Lane and Alexander was cited where the Defendant by Ejectment makes a Title by Copy of Court Roll granted to him 44 Eliz. and the Plaintiff replies his Title by the like Grant 1 Junii 43 Eliz. The Defendant maintains his Barr and traverseth that the Queen 1 Junii 43 year of her Reign granted the said Land by Copy and upon Demurrer it was adjudged that the traversing of the day is matter of substance which being made part of the Issue is naught But on the other side it was objected that time is material and that in Actions of Accompt 't is proper to make it parcel of the Issue for a Man may be Bayliff for two but not for three years and a Release may be pleaded from such a time to such a time Fitz. Accompt 30. Rast Entry f. 8. 19 pl. 1. f. 20. pl. 6. f. 22. pl. 2. 1. Then Exceptions were taken to the Plea first for that the Plaintiff having charged the Defendant as Receiver of 80 Piggs of Lead the Defendant pleads and that he was not Receiver thereof but doth not say of any part thereof for which reason the Court held the Plea ill because he might retain 79 and yet not 80 Piggs but to plead generally ne unques Receptor is well enough though it was urged that if it had been found against him upon such an Issue that he had received any parcel of the Lead he should have accompted 24 H. 4. 21. 2 Roll. 3. 14. 32 H. 6. 33. Fitz. Accompt 16. Cro. Eliz. 850. Fitz. Accompt 14. Rast Entry 18 19 20. 2. The Defendant concludes hoc paratus est verificare whereas it should be de hoc ponit se super patriam but the Court doubted of this because it was not specially assigned Postea 3. The Plaintiff charged the Defendant as his Bayliff upon the first of March and the Defendant pleads that he was not his Bayliff from the first of March so he excludes that day and this the Court held to be incurable and likewise that the time ought not to be made parcel of the Issue 2 Sand. 317 318. and so Iudgment was given quod computer Abraham versus Cunningham Administrator sells a Term afterwards an Executor appears and renounces yet the Sale was adjudged void Jones 72. 1 Vent 303. IN a special Verdict in Ejectment the Case upon the Pleadings was Viz. Sir David Cunningham being possessed of a Term for years made his Will and therein appointed his Son Sir David Cunningham to be his Executor and dyed Sir David the Executor in the year 1663. made his Will also and therein appointed David Cunningham his Son and two others to be his Executors and dyed those two Executors dye and B. a Stranger takes out Administration cum Testamento annexo and continues this Administration from the year 1665. to the year 1671. in which time he made an Assignment of this Term to the Lessor of the Plaintiff for which he had received a thousand Pounds And in the year 1671. the surviving Executor of Sir David the Executor made Oath in the Archbishops Court that he never heard of his Testators Will 'till then nor ever saw it before and that he had not medled with the Estate nor renounced the Executorship 6 Co. Packmans Case Then a Citation goes to shew cause why the Administration should not be repealed and Sentence was given that it should be revoked upon which the Executor enters and the Lessor of the Plaintiff entred upon him This Case was argued by Saunders for the Plaintiff Ex parte Quer. and Levints for the Defendant And first it was said in behalf of the Plaintiff that the Authorities in the Books were strong on his side that the first Administration was well granted 'T is true if a Man make a Will and Administration is granted and that Will is afterwards proved such Administration is void as in Greysbrook and Foxes Case Pl. Com. But in this Case after the death of Sir David Cunningham the Executor his Testator is dead Intestate for to make an Executor there must be first the naming of him then there must be some concurring act of his own to declare his assent that he will take onus executionis upon him for no man can make another Executor against his will so that if after the death of the first Executor those other Executors appointed by him had made such a Declaration as this surviving Executor hath since done their Testator had dyed Intestate 7 E. 4. 12 13. The Executor is made by the Testator and the Ordinary is empowered by the Statute to make the Administrator where the person dies Intestate so that 't is plain there cannot be an Executor and Administrator both together If he who is
to such person or persons and to such use and uses intents and purposes as she should think fit and that the Plaintiff should assent thereunto and not impeach the same in Law or Equity The Marriage shortly afterwards took effect and Philippa by Will in Writing gave all her Estate away in Legacies and Charitable Vses and she devised to the Plaintiff 20 l. to buy him Mourning and gave to Sir William Turner the Defendant 100 l. and made him Executor and she devised to Mr. Hays and to Mr. Grace 20 l. apiece whom she made Overseers of her Will and died There was neither Date or Witnesses to this Will save only the Month and Year of our Lord therein mentioned and that this Will not being proved in the Spiritual Court the Plaintiff moved for a Prohibition and the Defendant took Issue upon the Suggestion In which Case these Points were resolved by the Court. Mod. Rep. 211. 1. If there be an Agreement before Marriage that the Wife may make a Will if she do so 't is a good Will unless the Husband disagreés and his Consent shall be implyed till the contrary appear And the Law is the same though he knew not when she made the Will which when made 't is in this Case as in others ambulatory till the death of the Wife and his dissent thereunto but if after her death he doth consent he can never afterwards dissent for then he might do it backwards and forwards in infinitum 2. If the Husband would not have such Will to stand he ought presently after the death of the Wife to shew his dissent 3. If the Husband consent that his Wife shall make a Will and accordingly she doth make such a Will and dieth and if after her death he comes to the Executor named in the Will and seems to approve her choice by saying He is glad that she had appointed so worthy a Person and seemed to be satisfied in the main with the Will and recommended a Coffin-maker to the Executor and a Goldsmith for making the Rings and a Herald Painter for making the Escutcheons this is a good assent and makes it a good Will though the Husband when he sees and reads the Will being thereat displeased opposes the Probate in the Spiritual Court by entring Caveats and the like and such disagreément after the former assent will not hurt the Will because such assent is good in Law though he know not the particular Bequests in the Will 4. When there is an express Agreement or Consent that a Woman may make a Will a little proof will be sufficient to make out the continuance of that Consent after her death and it will be needful on the other side to prove a Disagreement made in a solemn manner and those things which prove a dissatisfaction on the Husbands part may not prove a disagreement because the one is to be more formal than the other for if the Husband should say that he hoped to set aside the Will or by a Suit or otherwise to bring the Executor to terms this is not a dissent Sir Robert Howard versus the Queens Trustees and the Attorney General In the Dutchy UPON a Bill exhibited in the Dutchy Court Jones 126. The Question was whether the Stewardship of a Mannor was grantable in Reversion or not The Attorny General and the Queens Council Butler and Hanmore held that it was not But Serjeant Pemberton and Mr. Thursby would have argued to the contrary for they said it might be granted in Fée or for any less Estate and so in reversion for it may be executed by Deputy But this Question arising upon a Plea and Demurrer the Debate thereof was respited till the hearing of the Cause which was the usual Practice in Chancery as North Chief Iustice who assisted the Chancellor of the Dutchy informed the Court. And he said that in all Courts of Equity the usual course was when a Bill is exhibited to have Mony decreed due on a Bond upon a Suggestion that the Bond is lost there must be Oath made of it for otherwise the Cause is properly triable at the Common Law and such course is to be observed in all the like Cases where the Plaintiff by surmise of the loss of a Déed draws the Defendant into Equity but if the Case be proper in its own nature for a Court of Conscience and in case where the Déed is not lost the Remedy desired in Chancery could not be obtained upon a Trial at Law there though it be alledged that the Déed is lost Oath need not be made of it as if there be a Déed in which there is a Covenant for farther Assurance and the Party comes in Equity and prays the thing to be done in specie there is no need of an Oath of the loss of such Deed because if it 't is not lost the Party could not at Law have the thing for which he prayed Relief for he could only recover Damages Note also That he said in the Case of one Oldfeild that it was the constant practise where a Bill is exhibited in Equity to foreclose the right of Redemption if the Mortgagor be foreclosed he pays no Costs and though it was urged for him that he should pay no Costs in this Case because the Mortgagee was dead and the Heir within Age and the Mony could not safely be paid without a Decree yet it being necessary for him to come into Equity he must pay for that necessity Note also the difference between a Mortgage in Fee and for Years for if 't is in Fee the Mortgagor cannot have a Reconveyance upon payment of the Mony till the Heir comes of Age. It was agreed in this Case by the Court that if there be Tenant for Life Remainder in Fee and they joyn in a Deed purporting an absolute Sale if it be proved to be but a Mortgage he shall have his Estate for Life again paying pro rata and according to his Estate and so it shall be in the Case between Tenant in Dower and the Heir Loyd versus Langford Lessee for Years makes an Assignment of his Term where Debt lies upon the Contract and where not IN a special Verdict the Case was Viz. A. being Tenant in Fee of Lands demised the same to B. for seven years B. re-demises the same Lands to A. for the said Term of seven years reserving 20 l. Rent per Annum A. dyes his Wife enters as Guardian to the Heir of A. her Son and receives the Profits B. brings Debt against her as Executrix de son tort in the debet and detinet and whether this Action would lie or not was the Question Serjeant Baldwyn who argued for the Plaintiff held that it did lie for though the Rent in this Case reserved did not attend the Reversion because the Lessee had assigned over all his Term yet an Action of Debt will lie for that Rent upon the Contract Cro. Jac. 487.
Party to Bail but 't is sub modo it must be upon good Bail and if the Sheriff be Iudge of the Security 't is an Argument that he is lyable for if he was not in danger he need not take Security But afterwards upon the second Argument the Chief Iustice and the whole Court were of Opinion that Iudgment should be given for the Defendant North Chief Iustice The Common Law was very rigorous as to the execution of Process the Capias was ita quod habeas the Body at the day of the Return and if the Sheriff had arrested one it had been an Escape to let him go Before the making of this Statute the Sheriff usually took Sureties for the appearance of the Prisoner and by this means used great Extortion and took great Sums of Mony to prevent which Mischiefs this Statute was made and so designed 1. For the ease of the Prisoner the Sheriff being now compellable to take Security which he was not obliged to do before 2. To prevent Extortion and therefore directs that a Bond shall be taken in such manner and with such conditions as is therein mentioned But the Plaintiff since the Statute is much in the same condition as before for he is to make the same Return of Cepi Corpus 'T is true he may now let him go upon Bail but as to the Creditor he is to have him in Court to answer his Suit as before and shall be amerced if he doth not appear at the Return of the Writ so that tho' this Statute be an ease to the Defendant yet 't is a burthen to the Sheriff who runs a greater hazard since the making of this Act than before because then he might keep him in prison till the Debt was satisfied but now he is obliged to let him at large upon Bail from whom he is directed to take a Bond which he may keep in his own hands to indempnifie himself The Court can only amerce him if the Defendant do not appear at the Return of the Process and 't is not material to the party whether the Sheriff take one or more Security that being in his discretion some he must take for otherwise 't is directly in opposition to the Statute neither is it material to the party whether they are such as are sufficient for if they are not and the Defendant is thereupon discharged this will not amount to an Escape because nothing is done but what is pursuant to the Statute and therefore he is no otherwise chargeable than by Amerciaments The Statute was made and intended for the benefit of the Debtor not of the Creditor and there might be some colour for the Action if the Sheriff might Return that he let him to Bail for then it might have been necessary to have alledged the sufficiency of them which might have been traversed but now he must pursue the substance of the Statute so far as to take Bail he is the proper Iudge of the sufficiency and when the Bail is taken he must return a Cepi Corpus so that he is only to be amerced till he bring in the Body but an Escape will not lie against him Long 's Case ONE Long was arrested in the Pallace-Yard Priviledge of an Attorny not far distant from the Hall Gate the Court being then sitting and being an Attorny of this Court he together with the Officer was brought into Court and the Officer was committed to the Fleet that he might learn to know his distance and because the Plaintiff was an Attorny of the Court of Kings-Bench who informed this Court that his cause of Action was for 200 l. therefore the Court ordered that another of the Sheriffs Bayliffs should take charge of the Prisoner and that Mr. Robinson the Chief Prothonotary should go along with him to the Court of Kings-Bench which was done and that Court being informed how the Case was discharged the Defendant upon filing of common Bail The Writ upon which this Long was arrested was an Attachment of Priviledge which the Court supposed to be made on purpose to oust him of his Priviledge for there was another Writ against him at the Sheriffs Office at the Suit of another person The Countess of Northumberland's Case Knights must be of the Jury where a Peer is concerned ADjudged that where a Péer is Party either Plaintiff or Defendant two or more Knights must be returned of the Iury and it was said that in Cumberland there was but one Free-holder who was a Knight besides Sir Richard Stote a Serjeant at Law and the Court were of Opinion that rather than there should be a failure of Iustice a Serjeant of Law ought to be returned a Iury-man for his Priviledge would not extend to a Case of necessity Bell versus Knight In Banco Regis Smiths Forges are chargeable with the Duty of Fire-hearth IN an Action of Trover Vpon Not Guilty pleaded the Iury found a special Verdict in which the Point was upon the Construction of the Statute of 14 Car. 2. c. 10. for the establishing of an additional Revenue upon the King his Heirs and Successors for the better support of his and their Crown and Dignity by which it is Enacted That for every Fire-Hearth and Stove in every House the yearly Sum of 2 s. shall be paid to the King other than such as in the said Act are exempted Then comes a Proviso which saith That this Act shall not extend to charge any Blowing House Stamp Furnace or Kilne c. And the Question now was whether a Smiths Forge shall be charged with this Duty Winnington Sollicitor General conceived that all Fire-Hearths are liable within the Body of the Act and there is nothing to exempt them but what is in the Exception and that a Smiths Forge cannot be called a Blowing House within the intent of the Act notwithstanding the Iury have found that Smiths use Bellows to blow their Forges For by Blowing Houses such Houses are meant as are in Staffordshire and Suffolk for the making of Iron these were the Blowing-Houses intended by the Parliament to be excepted and no other for if Smiths Forges had béen meant thereby those would have been inserted in the Proviso as well as the other things therein mentioned Words are to be taken in a common Vnderstanding for if a Traveller should enquire for a Blowing House no Body would send him to a Smiths Forge By the Opinion of the whole Court Curia it was adjudged upon the first Argument that Smiths Forges are liable to this Duty and so the Sollicitor said it had been lately adjudged in this Court by the Opinion of Twisden Wyld and Rainsford and that my Lord Chief Iustice Hale was of the same Opinion but Twisden said that neither the Chief Iustice or himself gave any Iudgment upon the Merits but upon a Point in Pleading Stroud versus the Bishop of Bath and Wells and Sir George Horner In Communi Banco IN a Quare Impedit
upon complaint made and Conviction he shall forfeit 500 l. so that as to himself whatever he doth in his Office is void but it was never the intent of the Act to work a Mischief or Wrong to Strangers for the Law favours what is done by one in reputed authority as if a Bishop be created who upon a Presentation made admits a Parson to a Benefice or collates by Lapse the former Bishop not being deprived or removed such acts are good and not to be avoided Cro. Eliz 699. Cro Car. 97. 2 Cro. 260. But admitting it to be an Error it cannot now be assigned for such because the Parties in Pleading have allowed the proceedings to be good upon Record and there is Iudgment against the Defendant but if he had been taken upon that Iudgment he might have brought an Action of false Imprisonment 2 Cro. 359. Cro. Eliz. 320. Wild Iustice You shall not assign that for Error which you might have pleaded especially having admitted it by pleading and one Musgrave's Case was cited which was that there is an Act of Parliament which lays a Tax upon all Law proceedings and makes them void if the Kings Duty be not paid and it was adjudged That if the Duty was not paid but admitted in pleading you shall not afterwards alledge what before was admitted viz. That the Duty was not paid Vpon a Writ of Error in Parliament it cannot be assigned for Error that the Chief Iustice of the Kings-Bench had not taken this Oath the same might be also of a Writ of Error in the Exchequer Chamber for an Error in Fact cannot be there assigned Sid. 253. but at the last the Iudgment was Reversed See the Reasons thereof by the Chief Iustice Jones in his Reports folio 81. Higginson versus Martin in C. B. IN an Action of Trespass and false Imprisonment If Cause of Action doth not arise within the Jurisdiction tho' Judgment is given below an Action will lie here the Defendant justifies by Process issuing out of the Court of Warwick upon a Iudgment obtained there and sets forth that there was a Plaint there entered in placito transgressionis to which the Defendant appeared super quo taliter processum fuit that Iudgment was given against him upon which he was taken and Imprisoned The Plaintiff replies That the Cause of Action did not arise within the Iurisdiction of that Court. The Defendant rejoyns that the Plaintiff is now estopped to say so for that the Declaration in the Inferiour Court against the now Plaintiff did alledge the cause of Action to be infra jurisdictionem of the Court to which he pleaded and Iudgment was given against him The Plaintiff demurrs And Newdigate Serjeant took Exceptions to the Plea 1. Ex parte Quer. 'T is said a Plaint was entered in placito transgressionis but 't is not said what kind of Trespass it was whether a clausum fregit or other Trespass 2. 'T is said that the Defendant appeared super quo taliter processum fuit that Iudgment was given for the Plaintiff Antea and no mention was made of any Declaration and the pleading taliter processum est in an Inferiour Court is not good 3. The Iustification is ill because the Inferiour Court had no Iurisdiction and so the Proceedings are coram non Judice for the Plaintiff in his Replication saith That the Trespass for which the Recovery was had in the Court of Warwick Moor 422. Latch 180. Cro. Jac. 184. was done at a place out of the Iurisdiction of the Court which the Defendant hath admitted by relying on his Plea by way of Estoppel 4. It did not appear by what Authority the Court at Warwick was held whether by Grant or Prescription These Exceptions were answered by Serjeant Hopkins Ex parte Def. and first he said That the Plaintiff there sets forth that levavit quandam querelam in placito transgressionis which was well enough Secondly taliter processium fuit is the shorter and better way of Pleading and therefore in a Scire Facias nothing is recited but the Iudgment 't is true in a Writ of Error the whole Record must be set out but that is not necessary here Thirdly 't is too late now to question the Iurisdiction of the Inferiour Court after the Party hath admitted it below he ought first to have pleaded to the Iurisdiction but now is Estopped by his own admittance there and since Iudgment is given upon it 't is not now to be questioned but however this being in the Case of an Officer if it was out of the Iurisdiction he is bound to execute the Process of the Court and so this is a good excuse for him Dyer 61. 10 Co. 77. But let the Pleadings be good or bad if the Declaration here be ill the Plaintiff cannot have Iudgment and that it was so he said that the Writ alledged an Imprisonment generally but the Count an Imprisonment donec he paid 5 l. 10 s. which is variant and the Prothonotaries said that the Writ used always to mention donec c. Curia But the Court were all of Opinion that the Count was well enough for there was no matter therein contained which was not in the Writ the Imprisonment was the Gist of the Action and the donec c. might have been given in Evidence because 't is only an aggravation and a consequence of the Imprisonment so that the Count is not larger but more particular than the Writ And as to the two first Exceptions the Court was also of Opinion that there was no difficulty in them or in the last Exception but thought the Plea was well enough as to those And they also agreed that the Officer in this Case was to be discharged for though the Process be erronious yet he is to obey and not to examine 2 Cro. 3. Weaver versus Clifford The great doubt in this Case was upon the third Exception as to the point of Iurisdiction Sid. 151. Latch 181. and whether the other Defendant who was the Plaintiff below should be likewise discharged was the Question And as to that the Chief Iustice and Wyndham Iustice were of Opinion That this was no good justification as to the Plaintiff below for if the cause of Action did arise without the Iurisdiction of which he is bound to take notice the proceedings quoad him are all coram non Judice and he cannot justifie the serving of any Process so that if the Trespass was done out of the Iurisdiction of the Court the Defendant below may bring an Action against the Plaintiff and is not concluded here by the proceedings there but may alledge the cause of Action to arise out of the Iurisdiction and as to his being Estopped by admitting of the Iurisdiction below that cannot be because an admittance cannot give the Court a Iurisdiction where it had none originally and so he said it was resolved in one Squib's Case in a
By the Statute of 21 H. 8. cap. 5. the Ordinary is to grant Administration to the Widow of the Intestate or to the next of his Kin or to both as by his discretion he shall think good and in Case where divers persons claim the Administration as next of Kin which be in equal degree the Ordinary may commit Administration to which he pleaseth and his power was not abridged but rather revived by this late Act by which 't is Enacted 22 23 Car. 2. That just and equal distribution shall be made amongst Wife and Children or next of Kin in equal degree or legally representing their Stocks pro suo cuique jure and the Children of the half Blood do in the Civil Law legally represent the Father and to some purposes are esteemed before the Vncles of the whole Blood 'T is no Objection to say that because the Law rejects the half Blood as to Inheritances therefore it will do the same as to personal Estates because such Estates are not to be determined by the Common but by the Canon or Civil Law and if so the half Blood shall come in for distribution for this Act of Parliament confirms that Law Winnington Sollicitor General contra He agreed that before this Act the half Blood was to have equal share of the Intestates Estate but that now the Ordinary was compelled to make such distribution and to such persons as by the Act is directed for he had not an original power to grant Administration in any case that did belong to the Temporal Courts Sid. 370 371. but it was given to him by the Indulgence of Princes not quatenus a Spiritual Person Hensloes Case 9 Co. Bendl. 133. And if he had not power in any Case he could not grant to whom he pleased But admitting he could his power is now abridged by this Statute and he cannot grant but to the Wife and Children or next of Kin in equal degrée or legally representing their Stocks Now such legal representation must be according to the Rules of the Common and not of the Civil Law for if there be two lawful Brothers and a Bastard eigne and a Question should arise concerning the distribution of an Intestates Estate the subsequent Marriage according to the Law in the Spiritual Court would make the latter legitimate and if so a legal Representative amongst them but this Court will never allow him so to be But the Court were all of Opinion that in respect of the Father the half Blood is as near as those of the whole and therefore they are all alike and shall have an equal distribution and that such Construction should be made of the Statute as would be most agreeable to the Will of the dead person if he had devised his Estate by Will and it was not to be imagined if such Will had been made but something would have been given to the Children of the half Blood And thereupon a Consultaion was granted Anonymus In C. B. FAux Judgment viz. Serjeant Turner took this Exception that the Plaintiff in the Court below had declared ad damnum 20 l. whereas it not being a Court of Record and being sine Brevi the Court could not hold Plea of any Sum above 40 s. and for this Cause the Iudgment was reversed DE Termino Paschae Anno 29 Car. II. in Communi Banco Southcot versus Stowel Intrat ' Hill 25 26 Car. 2. Regis Rot. 1303. IN a Special Verdict in Ejectment The Case was Covenant to stand seised how it differs from a Conveyance at the Common Law Mod. Rep. 226. Thomas Southcot having Issue two Sons Sir Popham and William and being seised in Fée of a Farm called Indyo the Lands now in question did upon the Marriage of his eldest Son Sir Popham covenant to stand seised of the said Farm to the use of the said Sir Popham Southcot and the Heirs Males of his Body on Margaret his Wife to be begotten and for want of such Issue to the Heirs Males of the Covenantor and for want of such Issue to his own right Heirs for ever Sir Popham had Issue begotten on his Wife Margaret Edward his Son and five Daughters and dies Thomas the Covenantor dies Edward dies without Issue And whether the five Daughters as Heirs general of Thomas or William their Vncle as special Heir Male of Thomas per formam doni shall inherit this Land was the Question Two Objections were made against the Title of William the Vncle. 1. Vaugh. 49. Because here is no express Estate to Thomas the Covenantor for 't is limited to his Heirs Males the Remainder to his own right Heirs so that he having no Estate for Life the Estate Tail could not be executed in him and for that reason William cannot take by descent 2. He cannot take by Purchase for he is to be Heir of Thomas and Heir Male the Limitation is so but he cannot be Heir for his five Nieces are Heirs In answer to which these Assertions were laid down 1. That in this Case Thomas the Covenantor hath an Estate for Life by implication and so the Estate Tail being executed in him comes to William by descent and not by purchase for though the Covenantor had departed with his whole Estate and limited no Vse to himself yet he hath a Reversion because he can have no right Heir while he is living and therefore the Statute of 27 H. 8. Hob. 30. creates an Vse in him till the future use cometh in esse and by consequence the right Heirs cannot take by purchase for wherever the Heir takes by purchase the Ancestor must depart with his whole Fee for which reason a Fee cannot be raised by way of purchase to a Mans right Heirs by the name of Heirs either by Conveyance of Land or by Vse or Devise but it works by descent 1 Inst 22. b. And that Vses may arise by Implication by Covenants to stand seized the Authorities are very plentiful Moor 284. 1 Co. 154. Lord Paget's Case cited in the Rector of Cheddington's Case Cro. Eliz. 321. 1 Roll. Rep. 239 240 317 438. Lane vers Pannel Cor. Car. And in the Case of Hodgkinson and Wood in a Devise there was the same limitation as this the Case was Thomas being seised in Fee had Issue Francis and William by several Venters and devised Land to Francis his eldest Son for Life then to the Heirs Males of his Body and for default of such Issue to the Heirs Males of William and the Heirs Males of their Bodies for ever and for default of such Issue to the use of the right Heirs of the Devisor then he made a Lease to William for 30 years to commence after his death and dies William Enters and Surenders this Lease to Francis who Enters and makes a Lease to the Defendant and dyes without Issue and William Enters and makes a Lease to the Plaintiff it was adjudged for William because he being
inconvenient that the Capias against the Defendant should be delivered to the new Sheriff and not the Supersedeas which was to admit the Charge and not the Discharge Westby's Case 3 Co. 73. And it was the constant practice not only to deliver the Supersedeas but the very Book in which 't is allowed and this he said appeared by the Certificates of many Vnder-Sheriffs which he had in his hand 2. If the Sheriff hath an Exigent against B. who appears and brings a Supersedeas to the old Sheriff and then a new Sheriff is made if he hath not the Supersedeas he may return him outlawed by vertue of the Exigent so in the Case of a Iudgment set aside for Fraud or Practice and a Supersedeas granted and the like in the case of an Estrepment which is never returned and it would be an endless work upon the coming in of every Sheriff to renew this Writ As to the Objection that the old Sheriff may have occasion to plead it As often as such occasion happens he may have recourse to it in the Office of the new Sheriff and he can have no Title to it by the direction of the Writ for that is Vicecomiti Berks and not to him by express Christian and Sirname and of that Opinion was all the Court and Iudgment was given accordingly nisi causa c. Hamond versus Howel Recorder of London An Action will not lie against a Judge for what he doth judicially tho' erroniously Mod. Rep. 184. FAlse Imprisonment The Defendant pleads specially the Substance of which was that there was a Commission of Oyer and Terminer directed to him amongst others c. and that before him and the other Commissioners Mr. Penn and Mr. Mead two Preachers were indicted for being at a Conventicle to which Indictment they pleaded Not-Guilty and this was to be tried by a Iury whereof the Plaintiff was one and that after the Witnesses were sworn and examined in the Cause he and his Fellows found the Prisoners Penn and Mead Not-Guilty whereby they were acquitted quia the Plaintiff male se gesserit in acquitting them both against the direction of the Court in Matter of Law and against plain Evidence the Defendant and the other Commissioners then on the Bench fined the Iury 40 Marks a-piece and for Non-payment committed them to New-gate c. The Plaintiff replies de injuria sua propria absque hoc that he and his Fellows acquitted Penn and Mead against Evidence and to this the Defendant demurred Serjeant Goodfellow who would have argued for the Defendant said that he would not offer to speak to that Point whether a Iudge can fine a Iury for giving a Verdict contrary to Evidence since the Case was so lately and solemnly resolved by all the Iudges of England in * Vaugh. 146. Bushel's Case that he could not fine a Iury for so doing But admit a Iudge cannot fine a Iury yet if he doth no Action will lie against him for so doing because 't is done as a Iudge 12 H. 4. 3. 27 Ass pl. 12. 1 Roll. Abr. 92. Liter Q. pl. 1. But the Court told him that he neéd not to labour that Point but desired to hear the Argument on the other side what could be said for the Plaintiff Serjeant Newdigate argued that this Action would lie 1. It must be admitted that the Imprisonment of the Iury was unlawful and then the consequence will be that all that was done at that time by the Commissioners or Iudges was both against Magna Charta and other Acts of Parliament the Petition of Right c. and therefore their Proceedings were void or at least very irregular to imprison a Iury-man without Presentment or due Process in Law and consequently the party injured shall have an Action for his false Imprisonment In 10 H. 6. f. 17. In an Action brought for false Imprisonment the Defendant justifies the Commitment to be for Suspicion of Felony but because he did not shew the ground of such Suspicion the Iustification was not good The Trial of Penn and Mead and all incidents thereunto as swearing the Iury examining of the Witnesses taking of the Verdict and acquitting the Prisoner were all within the Commission but the fining of the Iury and the imprisoning of them for Non-payment thereof was not justifiable by their Commission and therefore what was done therein was not as Commissioners or Iudges If this Action will not lie then the Party has a Wrong done for which he can have no remedy for the order for paying of the Fine was made at the Old-Bayly upon which no Writ of Error will lie and though the Objection that no Action will lie against a Iudge of Record for what he doth quatenus a Iudge be great the Reason of which is because the King himself is de jure to do Iustice to his Subjects and because he cannot distribute it himself to all persons he doth therefore delegate his Power to his Iudges and if they misbehave themselves the King himself shall call them to account and no other person 12 Co. 24 25. But that concerns not this Case because what was done here was not warranted by the Commission and therefore the Defendant did not act as a Iudge and this difference hath beén taken and allowed that in the Case of an Officer if the Court hath Iurisdiction of the Cause no Action will lie against him for doing what is contrary to his Duty but if all the Proceédings are coram non Judice and so void an Action doth lie 10 Co. 77. So in the Case of a Iustice of the Peace or Constable where he excéeds his particular Iurisdiction so if a Iudge of Nisi Prius doth any thing not warranted by his Commission 't is void And that the Commissioners here had no power to impose this Fine he argued from the very nature of the pretended Offence which was neither a Crime or in any wise punishable because what the Plaintiff did was upon his Oath and for that reason it hath béen adjudged in the Case * Bridgman 131. Agard and Wild that an Action would not lie against one of the Grand Iury after an acquittal for procuring one to be indicted for Barretry because he is upon his Oath and it cannot be presumed that what he did was in Malice The Habeas Corpus gives the Party Liberty but no Recompence for his Imprisonment that must be by an Action of False Imprisonment if otherwise there would be a failure of Iustice and it might encourage the Iudges to act ad libitum especially in inferior Courts where Mayors and Bayliffs might punish Iuries at their pleasures which would not only be a grievance to the Subject but a prejudice to the King himself because no Iuries would appear where they are subject to such arbitrary Procéedings An Action on the Case lies against a Iustice of the Peace for refusing to take an Oath of a Robbery committed 1 Leon. 323.
Profits of a Parsonage as in the Case of a Sequestration upon a Iudgment obtained against a Spiritual Person where a Fi. Fa. is directed to the Sheriff upon that Iudgment and he returns Clericus beneficiatus non habens Laicum feodum for which reason he cannot meddle with the Profits of the Glebe but the Bishop doth it by a Sequestration to him directed He may likewise retain for the supply of the Cure and pay only the residue which hath been omitted on the other side As the Ordinary might dissolve a Vicaridge endowed where the Parsonage was in the Hands of a Dean so he may sequester an Appropriation in any Spiritual Person and there is no Statute which exempts an Impropriation from such a Sequestration because 't is onus reale at the Common Law and as the Lay Impropriator may sue for Tythes and receive them as before the making this Statute 't is as reasonable since he hath the same advantage that he should have the same Charge and the rather because the saving in the Statute of 31 H. 8. cap. 13. doth still continue the same Authority the Bishop had before though the possession was thereby given to the King The Words of which are viz. Saving to all and every person c. such Right which they might have had as if the Act had not been made which must be the Right of the Ordinary and of no other person An Impropriator pays Synodals and Procurations as well as an Appropriation in the Hands of Ecclesiastical Persons and it would be very inconvenient if a Sequestration should not lie which would quicken them more than an Excommunication and it was said that in England there were above 1000 Appropriations belonging to Corporations aggregate as Deans and Chapters which could not be excommunicated and if the Bishop could not sequester then there was no remedy to repair the Chancel For which Reasons Iudgment was prayed for the Defendant But the whole Court besides Iustice Atkins held that the Lay Impropriation was not to be sequestred for the Repairs of the Chancel And the Chief Iustice said that the Repair of the Chancel was an Ecclesiastical Cause but that the Rectory and Impropriator were Lay and not to be sequestred as the possessions in the Hands of Ecclesiastical Corporations may which he did agree could not be excommunicated but the persons who made up such Corporation might And as to the Sequestration upon a Iudgment it made nothing for the Matter to entitle the Ordinary to a Sequestration in this Case because what he doth in that is in the nature of a temporal Officer for the Sequestration is like the Fieri Facias and being directed to the Bishop he is in that Case if he may be so called an Ecclesiastical Sheriff and by virtue thereof may do as the Sheriff doth in other Cases that is he may seise Ecclesiastical things and sell them as the Sheriff doth Temporal things upon a Fieri Facias but 't is to be observed that he must return Fieri feci and not Sequestrari feci upon this Writ And as to the Saving in the Statute that doth not alter the Case for if any Right be thereby saved 't is that of the Parson for the Parishioners have no right to sit there indeed the Vicar may because he comes in under the Parson So that this Case is not to be put as at the Common Law but upon the Statute of Dissolutions by vertue whereof the Rectory being in the Hands of a Lay Person is become a Lay Fee and so cannot be subject to a Sequestration if it should the next step would be that the Bishop would increase Vicaridges as well in the Case of an Impropriation as Appropriation which would lessen the possessions of such as have purchased under the Act. But Iustice Atkins was of a contrary Opinion he said that it was agreed by all that an Impropriator is chargeable with the Repairs of the Chancel but the Charge was not personal but in regard of the profits of the Impropriation which are originally the Debtor according to the first Donation That the primary Rights of Rectories are the performance of Divine Service and the Repairs of the Chancel and that the Profits which are over and above must then go to the Imprpriator and are to be esteemed then a Lay Fée but that those Duties are the first Rights and therefore must be first discharged That this Right this duty of Repairing was certain and therefore shall not be taken away by Implication but by express Words in the Act which if wanting shall remain still and the Parties shall be compelled to repair under the same Penalties as before But admitting it should be taken away yet the saving in the Act extends to the Right of the Parishioners which is not to sit in the Chancel but to go thither when the Sacraments are administred of which they are deprived when 't is out of Repair nor can they have the use of the Church which properly belongs to them because when the Chancel is out of Repair it not only defaces the Church but makes it in a short time become ruinous He denied that a Sequestration in Chancery cannot be pleaded to barr a Trespass at the Common Law for if it be said that the Chancery have issued such Sequestrations it will be as binding as any other Process issuing according to the Rules of the Common Law And he also denied the Case put by the Chief Iustice that the Lands of the Parishioners might as well be sequestred for the repair of the Church as those of the Impropriator for repair of the Chancel because the Profits of the Rectory might originally be sequestred but the Lands of the Parishioner could not and so the Cases are quite different Judgment But in Easter Term following Iudgment was given against the Defendant upon the point of Pleading which the Court all agreed to be ill 1. The Defendants should have averred that the Chancel was out of repair 2. That no more was taken than what was sufficient for the repair thereof 3. For that the Plaintiff had declared for the taking of several sorts of Grain and the Defendant justifies the taking but of part and saith nothing of the residue and so 't is a Discontinuance and the general Words quoad residuum transgressionis will not help because he goes to particulars afterwards and doth not ennumerate all and thereupon Iudgment was given accordingly Edwards versus Weeks ASsumpsit Parol discharge good before breach of Promise but not afterwards Mod. Rep. 262. The Plaintiff declared that the Defendant in consideration that the Plaintiff at his Request had exchanged Horses with him promised to pay him 5 l. and he alledged a breach in the Non-performance The Defendant pleads that the Plaintiff before any Action brought discharged him of his Promise And upon a Demurrer the Question was whether after a breach of a Promise a parol discharge could be good The
gave him the Goods at London by force whereof he took them at London absque hoc that he took them at Coventry because by such Gift or Delivery he might justifie the taking any where as well as where the delivery was made 2. That the Declaration was ill for the Agreement was to deliver the Goods at London and the breach was that he left them at London and so but argumentative Aston pl. Red. 62. Herns Pleader 76. Brownl Pleadings 139. But the Court were of Opinion that the Declaration was good and the Plea was naught in substance but if it had been good the Traverse notwithstanding had been ill because the justification was not local 2 Cro. 45 372 though Iustice Scroggs was of a contrary Opinion And Iudgment was given for the Plaintiff Nota Visne altered Propter necessiatem The Plaintiff had leave given by the Court to alter the Visne from London to Middlesex because all the Sittings in London were on a Saturday and his Witness was a Jew and would not appear that day Mendyke versus Stint PRohibition was prayed to the Sheriffs Court of London Prohibition to the Sheriffs Court after Verdict and Judgment comes too late The Suggestion was That the Plaintiff was sued in that Court in an Action on the Case and sets forth the Proceedings at large that there was a Verdict against him there and averred that the Contract upon which he was sued there revera was made in Middlesex and so the cause of Action did not arise within their Iurisdiction and upon Demurrer to the Prohibition Serjeant Pemberton argued 2 Inst 229 243 601. West 1. c. 35. F. N. B. 45. b. Hob. 106. 1. That a Prohibition doth lie to any Court as well Temporal as Spiritual where such Courts exceed their Bounds for both those Iurisdictions are united to the Imperial Crown it may be granted to the Dutchy Court if they hold Plea of Lands not parcel of the Dutchy 2. Though the Iury have here found that the Defendant assumpsit modo forma yet such finding as to time and place is not material nor is it any Estoppel in a new Action laid in another County to aver that it was for the same thing 'T is true both time and place may be made material by pleading and so it had been in this Case if the Iury had found the place precisely for it would have been an Estoppel The Verdict therefore is nothing and all they have done is coram non Judice The Case of * Antea Squib and Holt. Squib and Hole he cited as an Authority in point where it was adjudged no Escape in the Officer to let a Man at Liberty who was in Execution upon a Bond sued in an Inferior Court the Bond not being made within the Iurisdiction thereof Ex parte Def. But Maynard Dolben Goodfellow and Sympson Serjeants contra They agreed that where it appears by the Plaintiffs Libel that the Court had no Iurisdiction there a Prohibition lies at any time but if what is in the Declaration is laid infra jurisdictionem there the Party must plead extra jurisdictionem and if they refuse to plead to the Plea a Prohibition will lie after Sentence But here is an Action on the Case brought of which the Sheriffs Court can hold Plea and which is laid to be infra jurisdictionem and not denied by the Plaintiff in his Plea and therefore now after Verdict and Iudgment he comes too late for a Prohibition and upon this difference Prohibitions have been usually either granted or denied to the Spiritual Courts Though the Court hath not cognisance of the Cause yet the Proceedings are not coram non Judice for if it be alledged to be within the Iurisdiction and the Defendant takes no exception to it and then Sentence is given against him he hath there by admitted the Iurisdiction So where a Man sued for a Legacy in the Prerogative Court where the Will was proved Stiles 45. by the Opinion of Rolls C. J. 2 Roll. Abr. 318. and Sentence given and an Appeal to the Delegates and Sentence affirmed and then a Prohibition granted but without notice upon the Statute of 23 H. 8. cap. 9. for that the Parties lived in another Diocess but the Plaintiff having allowed the Iurisdiction in all the former proceedings though the Prohibition was granted the Court would not compel the Party to appear and plead but granted a Consultation Cro. Car. 97. Smith versus the Executors of Pondrel In Hillary-Term 1675. in B.R. between Spring and Vernon and in Michaelmas-Term in 22 Car. 2. B. R. Buxton's Case and in Hillary Term the 22 23 Car. 2. in the same Court between Cox and St. Albon Prohibitions were denied after the Iurisdiction adadmitted by Pleading Mod. Rep. 81. The Chief Iustice Wyndham and Atkyns upon the first Argument enclined that a Prohibition ought to be granted because the admittance of the Party cannot give a Iurisdiction where originally there was none but afterwards they were all of Opinion That the Prohibition should not go but said that the Plaintiff in the Inferiour Court ought to have been Non-suited if it appeared upon the Evidence that the Cause of Action did arise extra jurisdictionem In this Case these things were agreed by the Court. 1. Sid. 151. That if any matter appears in the Declaration which sheweth that the Cause of Action did not arise infra jurisdictionem there a Prohibition may be granted at any time 2. If the subject matter in the Declaration be not proper for the Iudgment and determination of such Court there also a Prohibition may be granted at any time 3. If the Defendant who intended to plead to the Iurisdiction is prevented by any Artifice as by giving a short day or by the Attornies refusing to plead it c. or if his Plea be not accepted or is over-ruled in all these Cases a Prohibition likewise will lie at any time And the Chief Iustice and Wyndham Iustices were of Opinion that after the Defendant had admitted the Iurisdiction by pleading to the Action especially if Verdict and Iudgment pass the Court will not examine whether the Cause of Action did arise out of the Iurisdiction or not But Atkyns and Scroggs Iustices said nothing to this last point but that many times an advantage given by the Law was lost by coming too late and instanced that a Visne may be changed in time but not if the Party come too late so if the time of the promise be laid above six years from the time of the Action brought if the Statute of Limitations be not pleaded the Defendant cannot take afterwards advantage of it Whereupon a Prohibition was denied and Iudgment was given for the Defendant Birch versus Wilson Plea tho' it amount to a general Issue if it doth disclose matter of Law besides it shall not be demurred unto IN an Action on the Case the Plaintiff declared
that he was seised of a Mesuage and several Lands in the Parish of Dale and that he and all those whose Estate he hath have used to have right of Common for all Commonable Cattle Levant and Couchant upon the Premisses in a certain Meadow there called Darpmore Meadow and in a certain place called Cannock Wood. That the Defendant praemissorum non ignarus had enclosed the said places in which the Plaintiff had right of Common and likewise put in his Cattle as Horses Cows Hoggs Geese c. so that he could not in tam amplo beneficiali modo enjoy the same The Defendant as to the Inclosure and putting in of his Hoggs and Geese pleaded Not Guilty And as to the residue That the Lord Paget was seised of a Mesuage 300 Acres of Land 40 Acres of Meadow and 100 Acres of Pasture and likewise of Darpmore Meadow and Cannock Wood and being so seised did by Deed of Bargain and Sale enrolled in consideration of 2000 l. convey the said Mesuage 300 Acres of Land 40 Acres of Meadow and 100 Acres of Pasture to the Defendant and his Heirs and by the same Deed did Grant unto him all Waies Commons and Emoluments whatsoever to the said Mesuage and Premisses belonging or therewithal used occupied or enjoyed or taken as part parcel or member thereof virtute cujus the Defendant became seised of the Premisses and that the same were leased and demised for years by the said Lord Paget and all those whose Estate he had a tempore cujus contrarii memoria hominum non existit and that the Tenants or Occupiers thereof a tempore cujus c. used to have Common in Darpmore Meadow and Cannock Wood for all commonable Cattle Levant and Couchant upon the Premisses and used to put in their Cattle into the said places in which c. virtute cujus the Defendant having Right did put in his said Cattle into the said Places to take Common there and averred That there was Common sufficient both for the Plaintiff and himself To this Plea the Plaintiff Demurred This Case was argued by Serjeant Pemberton for the Plaintiff and by Serjeant Weston for the Defendant Ex parte Quer. and for the Plaintiff it was said That it was no good Plea but rather a design to introduce a new way of Common The Reasons offered why the Plea was not good were 1. Cro. Car. 419. That the Defendant could not prescribe because of the Vnity of Possession for the Lord Paget had the Premisses in and to which c. and therefore he hath prescribed by a collateral matter Viz. by alledging that the Land was usually let to Tenants for years but doth not say whether they were Tenants by Copy of Court Roll or not neither doth he make out any Title in them In some Cases where a Man is not privy to the Title he may say generally that the Owners and Occupiers used to do such a thing c. and this way of Pleading may be good but here the Defendant claiming under them ought to set forth their Title or else he can have no Right to the Common 2. By this Plea he intended that the Lord Paget had made a New Grant of this Common for he sets forth That he granted the Premisses and all Commons used with the same and so would intitle himself to a Right of Common in those two places as if Common had been expressly granted to him there which if it should 't is but argumentative and no direct affirmance of a Grant upon which the Plaintiff might have replied non concessit for no Issue can be joyned upon it 3. He ought to have set forth That the Tenants lawfully enjoyed the Common there but he lays only an usage to have Common which may be tortious 4. He doth not say That there is sufficient Common for all the Commoners but only for the Plaintiff and himself 'T is true the Owner of the Soil may feed with his Tenant who hath a Right of Common but he cannot derogate from the first by streightning the Common by a second Grant and so leave not sufficint for the Tenant 5. This Plea amounts to the General Issue Cro. Car. 157. and the Plaintiff hath specially assigned that for a Cause of Demurrer for he saith That the Defendant without any Title put in his Cattle by which the Plaintiff had not sufficient Common and the Defendant pleads he put in his Cattle rightfully and the Plaintiff had Common enough which if it signifie any thing must amount to Not Guilty Ex parte Def. But on the other side the last Objection was endeavoured to be answered first because if that hold yet if the Plea be never so good in Substance the Plaintiff would have Iudgment It was agreed that this Plea doth amount to a General Issue and no more but that every Plea that doth so is not therefore bad for if it otherwise contain reasonable matter of Law which is put upon the Court for their Iudgment rather than referred to the Iury there is is no cause of Demurrer for it is the same thing to have the doubt or question in Law before the Iudges in Pleading as to have it before them upon a Special Verdict In 2 R. 2. 18. A Retainer was pleaded specially by an Administrator which is no more than Plene Administravit yet no Demurrer but the Book saith that the Court ought to be moved 2. The Plea is good as to the matter of it for the Defendant claims the same Common by his Grant which had been used time immemorial and alledges it to be of all Common used with the Premisses and this was a Common so used In Trespass the Defendant justified that Godfrey was seised in Fee of a House and of 20 Acres of Land and that he and all those c. had Common in the place where c. to the said Messuage belonging and that he made a Feoffment to Bradshaw of the same who made a Lease thereof to the Defendant with all Profits and Commodities thereunto belonging vel occupat vel usitat cum praedicto Mesuagio It was adjudged that though the Common was gone and extinct in the Hands of the Feoffor by the unity of the Possession yet those Words were a good Grant of a New Common for the time granted in the Lease and that it was quasi a Common in the Hands of Godfrey the Feoffor Cro. Eliz. 570. Godfrey versus Eyre And though it hath been objected That this Plea is not formally pleaded because it ought to have been direct in alledging a Grant whereas it was only argumentative and brought in by a side Wind he said That as bad as it was 't was drawn by that Serjeant who argued against him and who did very well know that the Averment of sufficiency of Common was needless Curia The Court were all of Opinion That though the Plea did amount to the general Issue yet for that
cap. 2. That all and every person or persons who shall have any Office Civil or Military shall take the Oaths of Supremacy and Allegiance and receive the Sacrament within the time limited by the said Act or otherwise shall be adjudged ipso facto incapable and disabled by Law or if he execute any Office after his neglect or refusal to qualifie himself within the time therein appointed viz. three Months then he shall be disabled to sue in any Court and shall forfeit the Sum of 500 l. Sir John Read was made High Sheriff of Hartfordshire 12 Novemb 25 Car. 2. and being still under the Sentence of Excommunication he took upon him the Office and executed it for 3 Months viz. to the 12th day of February afterwards and then refused to serve any longer the Iudges came soon after to keep the Assises for that County but there was no Sheriff there to attend them and the reason was because if he had executed the Office without taking the Oaths the time being now expired wherein he ought to have taken the same then he had subjected himself to the forfeiture of 500 l. and he could not receive the Sacrament because he was Excommunicated and therefore supposed that after the 3 Months he was ipso facto discharged by the aforesaid Statute and whether upon all this matter the Defendant be guilty was the Question Ward and Sir William Jones the Attorny General argued that the Defendant was Guilty 1. The Oath and Sacrament are necessary qualifications for all Sheriffs because the Act appoints these things to be done and the Penalty therein extends to those who execute any Office after the three Months without doing the same but not to such who neglect to qualifie themselves And though it may be objected that the Act gives no Penalty for not taking of the Oath it only enjoyns it to be done and subjects the person to the forfeiture of 500 l. for executing an Office after three Months that being not done so that this is not to be punished by Information it being no Offence at the Common Law yet if an Act appoints a thing to be done the transgressing of the Law is an Offence at the Common Law and ought thus to be punished and so it was adjudged in Castle 's Case 2 Cro. 643. 1 Roll. Abr. â—51 455. Suppose the Defendant had given Bond to perform a thing a discharge by the Act of God or by the Obligee had been good but the Obligor should never disable himself and if it be so in private Contracts much more in the Case of the King because our Duty to him is of the highest nature 2. Therefore the Excommunication can be no excuse to the Defendant for though he might have been excused if he had been under a legal disability which he could in no wise prevent yet here he was able and had time enough and it was in his power to have discharged himself from this Excommunication and being bound by his Duty and Allegiance to the King to perform the Office he ought to qualifie himself for the performance and either to remove the disability or shew he had not power to do it 'T is his obstinacy that disables him and 't is absurd to think that this Excommunication which was designed as a punishment should now be an ease to him to excuse him from executing this Office Moor 121. Lacie's Case 3. That the Defendant is punishable for this neglect otherwise the King would lose the effect of his Subjects Service if it should be in their power to discharge themselves at pleasure an Act of Parliament cannot and much less the Defendant himself by his own act take away his Duty and Service which he oweth to the King And therefore though 't is Enacted That a Sheriff shall be only for one year yet it has been adjudged that the King by a Non obstante may dispense with that Statute Antea because otherwise he would be deprived of the Service of his Subjects If a Sheriff when he is first admitted into his Office refuses to take the Oath of his Office he is finable and so he ought here if any alteration be made by the King of that Oath his disobedience afterwards is punishable Cro. Car. 26. though a form of the Oath is prescribed by the Act of Parliament and there is no other way to punish the Defendant in this Case but by Information for after the three Months in case he execute the Office not being qualified the Act gives the Penalty to the Informer and if he should not execute it the inconvenience would be great because 't is and Office which concerneth the Administration of Iustice and necessary for the management and collection of the Kings Revenue The Statute extends to Offices of Trust as well as of Profit and enjoyns the thing to be done the transgression whereof is an Offence as well at the Common Law as against the Statute and so punishable by Information and therefore they prayed Iudgment against the Defendant Sawyer and Levins contra Viz. They agreed if the Subject be qualified he ought to accept the Office Ex parte Def. but the Defendant was not so qualified and therefore to be excused But before they entred upon the debate whether this was an Offence or not they took an Exception to the form of the Information Viz. That it was not good because it did not conclude contra formam Statuti for if the Offence be at the Common Law and a new Penalty is given by the Statute the Proceedings ought to be either at the Common Law by way of Fine or upon the Statute for the Penalty but if the Offence be by the Statute then it must be laid to be contra formam Statuti Now if this was any Offence in the Defendant it was because he did not receive the Sacrament and take the Oath which is an Offence against the Statute and therefore ought to conclude contra formam Statuti which is essential Then as to the Substance 1. The Information is insufficient for there is no Offence at all of which the Common Law doth take notice and though the Consequences of the thing done may be bad yet no Man shall be punished for that because those only aggravate the Offence if any neither is this Information true for it saith he refused absque rationabili causa but here was a reasonable cause And though it may be objected that it was only impotentia voluntatis and that every Subject being disabled is to remove that disability to serve the King this was denied for a Man who is a Prisoner for Debt is not bound or compellable to be Sheriff neither is a Man bound to purchase Lands to qualifie himself to be either a Coroner or Iustice of the Peace By the Statute of 3 Jac. every Recusant is disabled he may conform but he is not bound to it for if he submits to the Pemalty 't is
Plaintiff Blackbourn versus Conset Place where it shall be intended tho' not laid in the Pleading IN Replevin the Avowant pleads an Execution taken out and that a Term for years was extended and an Assignment thereof made by the Sheriff but alledges no place where the Assignment was made But upon Demurrer it was held good for it shall be intended to be assigned where the Land doth lie Hall versus Carter Bond to render himself a Prisoner good IN an Action of Debt upon a Bond the Defendant craves Oyer of the Condition which was That if another person who was arrested at the Suit of the Plaintiff and for whom the Defendant was now bound should give such Security as the Plaintiff should approve of for the payment of 90 l. to him Sid. 132. pl. 4. or should render his Body to Prison at the return of the Writ then the Obligation to be void The Defendant pleads the Statute of 23. H. 6. cap. 10. That this Bond was given pro easimento favore And this Case coming to be argued upon a Demurrer the question was whether such Bond be within the Statute or not And the Court were of Opinion that it was not If the Sheriff takes Bond in another Man's name to elude the Statute such Bond is void but the Plaintiff may give directions to the Officer to take such Bond as this to himself 't is only an expedient to prevent a new Arrest and the Agreement of the Plaintiff makes it good If a Capias be taken out against the Defendant and a third person gives the Plaintiff a Bond that the Defendant shall pay the Mony or render himself at the Return of the Writ 't is a good Bond and not within the Statute because 't is not by the direction of the Officer but by the agreement of the Plaintiff and there is no Law that makes the Agreement of the Parties void and if the Bond was not taken by such Agreement it might have been traversed But Iustice Atkyns doubted because a Bond to render himself a Prisoner is void Bewfages's Case 10 Co. But if it had been to pay the Mony or appear at the Return of the Writ it had been good But notwithstanding Iudgment was given for the Plaintiff Shaxton versus Shaxton THE Condition of a Bond was Non damnificatus not a good Plea where the person and Lands are to be indempnified Antea That the Defendant should save harmless Thomas Shaxton and the Mortgaged Premisses and should pay the Interest for the prinicipal Sum. The Defendant pleads that Thomas Shaxton non fuit damnificatus for that the Defendant had paid the 120 l. principal mony with all the arrears of Interest due at such a day And upon a Demurrer this was held no good Plea because the first matter non damnificatus goes to the Person and not to the Premisses And so Iudgment was given for the Plaintiff Anonymus After acquittal for a Common Trespass an Action on the Case will not lie Sid. 465 466. Antea THE Defendant was Indicted for a Common Trespass and Acquitted and now was Plaintiff in an Action on the Case against the Prosecutor And by the Opinion of the Chief Iustice the Action will lie for the Charges and Expences in defending the prosecution which the acquittal proves to be false and the Indicting him proves to be malicious for if he had intended any thing for his own benefit or recompence he might have brought a civil Action and then if he had been found Not Guilty he would have had his Costs allowed Though the prosecution be for a Trespass for which there is a probable cause yet after Acquittal it shall be accounted malicious the Difference only is where the Indictment is for a Criminal matter but where 't is for such a thing for which a Civil Action will lie the Party can have no reason to prosecute an Indictment it is only to put the Defendant to charges and make to him pay Fees to the Clerk of the Assises Penrice and Wynn's Case Habeas Corpus may be granted in Civil matters SErjeant Maynard moved for a Habeas Corpus for them being committed to the Poultry Compter by the Commissioners of Bankrupts for refusing to be examined and sworn touching their Knowledge of the Bankrups Estate The Process against them in this Court was an Attachment of Priviledge which was a Civil Plea and of which the Court had Iurisdiction and therefore the Habeas Corpus must be granted And the Chief Iustice said that it might be without motion because all the Habeas Corpus's in that Court were ad faciendum recipiend and they issue of course Antea but in the Kings-Bench they are ad subjiciendum which are in Criminal Causes and not to be granted without motion Then the Serjeant moved that the Sheriff might Return his Writ which was done and being filed he took Exceptions to the Return by which the ground of the Commitment appeared to be by virtue of a Warrant under the Hands and Seals of the Commissioners c. which he said was ill for want of an Averment of their refusal to come and be sworn for it did not appear that they did refuse and they ought not to be committed without refusing so that should have been positively averred viz. That they did refuse and still do for if they are willing at any time they ought to be discharged and so they were but were ordered to put in Bail upon the Attachment Abbot versus Rugeley THE Plaintiff declared in an Action of Assault and Battery to which the Defendant pleaded non cul Plea puis darrein continuance must be certified as part of the Record of Nisi prius and at the Assises a Plea was put in puis darrein continuance and a Demurrer thereunto The Court were clear of Opinion That if the Plea had been issuable it could not have been then tried neither could the Demurrer be there argued but must be certified up hither by the Iudge of Assise as part of the Record of Nisi prius Yelv. 180. Hawkins versus Moor. Ballard versus Oddey It was ruled in this Case The Contract it self must be Usurious to make it void 1 Sand. 295. Mod. Rep. 69. That to avoid a Security by reason of Vsury the Contract it self must be usurious for if the Party takes afterwards more than is allowed that will not make it so so that if the Agreement of the Parties be honest but made otherwise by the mistake of a Scrivener yet 't is not Vsury As if a Mortgage be for 100 l. with a Proviso to be void on payment of 106 l. at the end of one year and no Covenant for the Mortgagor to take the Profits till default be made in paiment so that in strictness the Mortgagee is intituled both to the Interest and the Profits yet if this was not express'd the Agreement is not Vsury DE Term. Sanctae Trin.
new Will and the Grandson should take by the Name of Son And Iustice Atkins relied on the Case of Brett and Rigden in the Commentaries where new purchased Lands passed by a Republication but a Writ of Error being brought upon this Iudgment in the Kings Bench it was reversed Anonymus In Banco Regis MR. Sanders moved for a Prohibition to the Spiritual Court in the Case of the Children of one Collet and Mary his Wife to stay Proceedings there upon a Libel against them that the said Collet had married Anne the Sister of the said Mary They both appear and confess the Matter upon which a Sentence of Divorce was to pass whereas in truth Collet was never married to Ann but it was a contrivance between him and his Wife to get themselves divorced and the Marriage declared void ab initio to defeat their Children of an Estate settled upon them in Marriage with Remainders over by bastardizing them after they had been married and lived together 16 years The Reason why a Prohibition was prayed was because Marriage or no Marriage was to be tried in pais for that the Inheritance and Freehold of Land were concerned in this Case The Court directed that they should suggest this Matter Curia and that it was a Contrivance to obtain a Sentence of Divorce to defeat them of their Estate entailed on them and then to move for a Prohibition Smallwood versus Brickhouse THE Suggestion was Spiritual Courts are proper to determine where a person is capable of making a Will Godolph 276. that B. being under the Age of sixteen years had made a Will and that the Prerogative Court proceeded to the proof of it whereas by the Common Law a person is not capable till 17 years and therefore a Prohibition was prayed And that the Common Law hath determined the time my Lord Coke's Comment upon Littleton was cited 1 Inst 89. b. where 't is said That at 18 years of Age he may make his Testament and constitute Executors and the Age of a person is triable also in pais But the Court said Curia that the Proof of Wills and the Validity of them doth belong to the Ecclesiastical Court and if they adjudge a person capable the Court will not intermeddle for 't is within their Iurisdiction to adjudge when a person is of Age to make a Will and sometimes they allow Wills made by persons of 14 years of Age and the Common Law hath appointed no time it depends wholly on the Spiritual Law and therefore a Prohibition was denied Joan Bailies Case NOTA. One Joan Bayly being in Execution Administration was committed to the Debtor in Execution the Plaintiff dyed intestate and the Right of Administration came to her and a Motion was made for a Habeas Corpus to bring her from the Compter into this Court for that having administred to her Creditor she might be discharged but it was denyed for she could not be thus discharged because non constat de persona neither can she give a Warrant of Attorny to acknowledge satisfaction therefore let her renounce the Administration and get it granted to another and then she may be discharged by a Letter of Attorny from such Administrator Anonymus Mandamus MAndamus to swear one who was elected to be one of the Eight Men of Ashburn Court it was denyed because it is incertain for it ought specially to be inserted what the Office is and what is the place of one of the Eight Men of Ashburn Court that it may appear to the Court to be such a place for which a Mandamus doth lye and though such a Writ hath been granted for one of the approved Men of Guilford yet it was specially set forth what his Office was Birch versus Lingen Trin. 34 Car. 2. in B. R. Discontinuance where amendable JVdgment was obtained upon a Bond 25 years since and in one of the Continuances from one Term to another there was a blank The Executors of the Defendant now brought a Writ of Error and the Plaintiff in the Action got a Rule to amend and insert the Continuance suggesting to the Court that it was a Iudgment of a few Terms and so aided by the Statute of 16 17 Car. 2. cap. 8. Hughes Abr. tit Costs 480. 2 Sand. 289. Moor 710. Cro. Eliz. 320 489 553 619. Cro. Jac. 211 353 528. Vpon this Rule the Plaintiff fills up the Blank and the Record was certified so filled up into the Exchequer-Chamber And Mr. Pollexfen moved for the Defendant that the Record might stand as it did at first and that the Rule was got by a trick and on a false Suggestion it being a Iudgment before the Restoration of this King and a Discontinuance not amendable for 't is the Act of the Court and for an Authority in the Point the Case of Friend and Baker was cited where after a Record certified Stiles 339. a Motion was made to amend it because day was given over to the Parties from Easter to Michaelmas-Term and so Trinity-Term left out where by the Opinion of Roll Chief Iustice that the giving of a day more than is necessary is no Discontinuance but where a day is wanting 't is otherwise But Sanders for the Plaintiff said that this was only a Misprision of the Clerk and no Discontinuance but amendable The Clerks commonly leave Blanks in the Venires and if they neglect to fill them up 't is only a Misprision and amendable by the Court and the Record being now filled up by the Rule of the Court ought not to be razed to make an Error The Chief Iustice was of Opinion That this was not a discontinuance but an insufficient continuance and an omission of the Clerk only who if he had filled up this Blank himself without Rule it could not afterwards be set aside But Iustice Jones was of another Opinion That it was such a misprision of the Clerk as was not amendable by the Statute of H. 6. since it was not the same Term and all the Proceedings being in the Breast of the Court only during the Term it ought not to be altered but left in Blank as it was for where Iudgment is entred for the Plaintiff the Court may upon just cause alter it the same Term for the Defendant but not of another Term the whole Term being but one day in Law And though the Writ of Error be returned into the Exchequer that will make no alteration for the Record it self remains still here and 't is only a Transcript that is removed thither Sed Adjornatur Anonymus TRespass for breaking of his Close The Defendants plead Power where 't is coupled with an Interest is assignable That the place where were c. the Lands of one Martin who made a Lease thereof to the Plaintiff and did thereby except the Trees growing on the same In which Lease the Plaintiff did Covenant with the said Martin his
Issue joyned 144 Arrest In the Palace Yard sitting the Court the Officer was committed and the Party discharged upon Common Bail 181 Assignee Of a Devisee is not an Assignee to take where Rent is reserved to a Man and his Assigns 93 Audita Querela Upon the Act of Indempnity and Judgment for the Plaintiff 37 Where it lyeth 49 Assumpsit Where there are mutual Promises and where not 33 34 Where one Promise may be pleaded in discharge of another 44 Promise before a Breach may be discharged by Parol ibid. Assurance Condition to pay Mony upon making such assurance Payment is pleaded but doth not say when assurance made not good 33 Avowry For taking of a Herriot tempore quo being left out and yet good 4 5 Averment Vide Consideration Where it need not be of a sufficiency of a Common in the Plea 276 Avoidance Grant thereof by a Chapter doth not bind the Successor 56 Where there is an Agreement between three for a Presentation by turns a Grant of the next Avoidance by one though the Church be full is good 97 Authority Where to be pursued 79 How it differs from an Interest ibid. Where 't is coupled with an Interest 't is assignable 318 Acts done by one in reputed Authority are favoured by Law 194 Award Pleaded under Hand and not under Seal not good 77 78 An Umpire was chosen after the day in the Submission who made an Award and good 169 170 That all Suits shall cease it amounts to a Release 227 228 One may submit for another and good 228 Of a lesser Sum in satisfaction of a greater good 303 304 A thing awarded not in the Submismission 't is void and the Award good 309 Submission of a particular difference and a general Release awarded if no other Controversie 't is good 309 Of all differences till such a day and a Release awarded to be given of all ten days after if no more Controversies do appear within that time 't is good ibid. B. Bail Vide fol. 28. ARE liable though the Principal is in Execution 312 Action on the Case lieth against the Sheriff for refusing of Bail 31 32 It is not to be allowed in a Scandalum Magnatum 215 Barr. Where the Plaintiff misconceived his Action it shall be no barr to a new one 294 319 Baron and Feme Where they shall joyn in an Action of Assault 66 How she may make a Will with her Husbands assent 170 Where the Agreement of her Husband is good before Marriage 172 How he must shew his disassent after her death ibid. If he once assent he cannot afterwards disagree ibid. What Acts amount to testifie his Consent and what his Disagreement 172 173 Where he shall bring the Action alone upon a Covenant made to both 217 When the Action if not discharged shall survive to her they must both join 269 270 Whether he shall make distribution of the Estate of his Wife dying intestate 20 21 22 He makes a Will and his Wife Executrix she dies before Probate Administration shall be to the next of the Kin of the Husband 101 Bond. Where one may be given in discharge of another 136 137 With an insensible Condition the Bond is good and the Condition void 285 To render himself a Prisoner or pay the Mony in behalf of a third person good 304 305 Breach Where 't is assigned according to the words of the Covenant and good 139 Cannot be assigned upon a Proviso but upon an express Covenant 37 C. Carrier JUstification for that he was robbed the Plea is ill in Substance 270 271 Church Prescription to have an Isle therein no good Cause for a Prohibition 283 Bishop cannot appoint Commissioners to rate a Parish for repair of a Church 8 How a Rate shall be made for the the building thereof 222 Common and Commoner Where a Licence from the Lord is pleaded to a Surcharge you must alledge that there is sufficient Common besides 6 7 May abate Hedges made upon his Commom 65 66 Where it must be for Cattle Levant and Couchant 185 Where he justified by a Plea amounting to the general Issue and held good 274 275 Tenants in Common Need not join in an Action of Waste 61 Must join in the personalty 62 Common Pleas Court Cannot grant a Habeas Corpus in criminal Causes 198 Cannot take Sureties for the good Behaviour ibid. Condition Precedent what words will amount to it 33 34 Paying and performing make not a Condition 34 35 Where the Acceptance of a collateral thing by the Obligee shall be a good performance of the Condition 137 Disjunctive Condition the power of election is in the Obligee 200 303 Where 't is with a Penalty the power of election is in the Obligor 200 All Conditions with a Penalty are made in favour of the Obligor ibid. Where 't is dispensed withal by the Act of God and of the Party 201 Where the Obligee had dispensed with one part of the Condition the other is discharged 202 To make such a Conveyance as the Council of the Obligee shall direct if he refuse the Obligor may procure the Conveyance to be made 203 204 Of a Bond where 't is not performed by the return of a Ship 267 To do a thing to a Stranger where it ought to be performed 309 What words make a Condition and not a Covenant and e contra 35 75 76 Continuando A Trespass longer than he can prove Damages shall be recovered for what he can prove before 253 Consideration In a Grant not repugnant to a former may be averred 250 Conveyance At Common Law there must be an actual Entry to make it good otherwise upon the Statute of Uses 251 Where several things make but one Conveyance 233 Construction Shall not be made to work a wrong 116 Copyhold A Covenant that he shall enjoy it for one year sic de anno in annum amounts to a Lease to make a Forfeiture 81 If he refuse to pay the Fine having probable cause so to do the Lord cannot bring his Ejectment for a Forfeiture 229 Costs Allowed for disturbing the Plaintiff in his Common though it be in the nature of a Trespass 141 142 Covenant Where it lies in the personalty tho' the Grant be executed by the Statute of Uses which makes a distress the proper Remedy 138 139 The words paying and performing make a Covenant and not a Condition 35 91 92 Where a Breach shall be assigned upon it but not on a Proviso 36 37 Where they are mutual and where not 74 75 76 The words povisum agreatum est make a Covenant 77 Where the word Covenant shall amount to an Agreement and where to a Lease 80 It is intended to levy a Fine whether this is a Covenant or not 89 90 What Agreement under Hand and Seal will amount to a Covenant 89 Assignee Covenant lies against him after assignment 139 Covenant to stand seised how it differs from a Feoffment to Uses 208 209
Habens legale jus titulum need not shew what Title the disturber had after Verdict 213 In a Bond to pay 40 l. when an Accompt is stated by two Attornies to be chosen between the Parties 't is a Covenant and not a solvendum 266 Breach is assigned relating to three Covenants and concludes sic Conventionem fregit 't is good 311 Where an Agreement to pay will amount to a Covenant 269 Covenants reciprocal cannot be pleaded in bar to each other 34 75 76 309 Breach where assigned and not necessary to aver performance on the part of the Plaintiff 309 Court Inferiour the cause of Action must arise within the Jurisdiction 30 Judgment therein arrested because the Damages were laid to 30 l. 101 102 For not saying that the Jurors were electi ad triand ' 102 Taliter processum fuit and the proceedings not set forth at large well enough in a Plea but not in a Writ of Error 102 195 Vi armis contra pacem whether good or not 102 Cannot hold Plea for work done without the Jurisdiction though the Promise be made within 141 Cause of Action must appear to be within the Jurisdiction to oust the Courts above 197 Where it doth not appear that the Court was held either by Grant or Prescription good 197 198 If the cause of Action doth not appear to be within the Jurisdiction though there is a Judgment recovered below yet an Action of Trespass will lye and false Imprisonment upon the taking out of that Judgment 197 If upon Evidence it appear that the cause of Action did arise extra Jurisdictionem the Plaintiff must be non-suit 273 If Jurisdiction be admitted in pleading and Verdict and Judgment thereon t is too late for a Prohibition Ibid. Court Ecclesiastical In what Case a Bishop shall administer an Oath in Temporal Matters 118 Custom One cannot be pleaded in bar to another 105 In pleading it must be strictly alledged 41 Where 't is a reasonable Custom for the Lord to have derelict Lands 107 D. Day Vide Plea WHere 't is excluded being alledged in the Declaration it makes the Plea ill 146 'T is but punctum temporis and of no consideration in the Law 281 Release of all demands usque 26 April a Bond dated that day is not released 281 Debt Upon the Sheriffs Bond will be good though the Statute be not pleaded 36 Will lye upon the Contract where the whole Term is assigned 174 175 176 Whether it will lye for a Fine set by a Steward for 't is ex quasi contractu 230 It must be upon the Contract or ex quasi contractu 262 Deed. Where 't is lost the Party must make Oath of it to entitle himself to a Bill in Equity to have it performed in Specie 173 Demand Must be made where an Interest is to be determined 264 Devise To a Man and his Heirs if the Devisee die in the Life time of the Devisor his Heir takes nothing 313 Republication makes it a new Will ibid. To the Heir at Law makes a Limitation and not a Condition 7 To an Infant in ventre sa mere if there is a sufficient description of him 't is good 9 Where the word paying makes a Fee where not 26 To him till he be of Age then to him in Fee he dyed within Age yet a Free-hold vested in him presently 289 To him in Fee when of Age if he dye before then to the Heirs of the Body of R. and their Heirs he died living R. within Age his Sister and Heir shall take by way of Executory devise 289 Executory devise how it differs from a contingent Remainder at Common Law ibid. Construction of words therein 290 Departure From his Plea 31 Disability By a Statute where it ought to be removed by the Party to enable himself to execute an Office 299 Discharge By Parol good before the breach of promise but not afterwards 259 Discontinuance Where amendable 316 In pleading the Plaintiff declared of taking several things the Defenant justifies as to part and saith nothing of the residue 259 In the Adjournment of a Court where a day certain is not given 59 Distress Cannot be of Sheaves of Corn in Shocks for Rent 61 Distribution Shall be equally made amongst the Children of the whole and half Blood 204 205 206 Disturbance Coactus fuit to pay is a sufficient Disturbance 55 E. Escape THE Plaintiff declared upon Process in an Inferiour Court and the Bond was not made infra Jurisdictionem the Action would not lye 29 30 Debt thereon lies against the Warden of the Fleet as Superior where the Grantee for Life is insufficient 119 After an Escape the Plaintiff may have a Capias ad satisfaciendum or Scire facias at his Election 136 Whether it will lye against the Sheriff for taking insufficient Bail 181 Election In disjunctive Conditions where the Election is in the Obligor 201 304 'T is at the Plaintiffs Election to have a Ca. Sa. or Scire facias after an Escape 136 Enclosure Where a Custom is good to Enclose in a Common Field 105 Entry Not necessary to avoid an Estate in case of a Limitation 7 Error Where a Writ of Error will lye upon a Fine in the Old Bayly 219 Error in Fact cannot be assigned in the Exchequer-Chamber 194 If one be dead after the Judgment he must be named in a Writ of Error 285 Where a Judgment shall be avoided by a Plea without a Writ of Error 276 Estate Where the word Body makes an Estate for Life and no Tail 16 Estoppel Good by a Fine levied by a Remainder man in Tail 90 No Uses can be declared of a Fine by Estoppel 90 One who has no Estate levies a Fine 't is good by Estoppel 115 Evidence A Decree in Chancery or Sentence in in the Ecclesiastical Court read as Evidence of the fact 231 232 Excuse If one Man doth not perform his Covenant 't is no Excuse for the breach on the other side 75 76 What is a good Plea by way of Excuse and what not 27 28 29 Executor De son tort cannot retain 51 Where the Judgment shall be de bonis Testatoris 108 What is requisite to make an Executor 147 What must be done when he refuseth Ibid. De son tort where he may be of a Term but not of a Term in futuro because he cannot enter 175 Cannot plead non detinet where the Testator could not plead nil debet 266 Executor of an Executor de son tort where not liable at Law 293 294 Where he pleads a Judgment kept on Foot by fraud 36 Explain A Man grants Tenementa praedicta then follows totum quicquid habet whether these subsequent words shall explain or enlarge the Grant 112 113 c. Execution Payment of the Mony to the Marshal the Defendant may be taken again in Execution at the Suit of the Plaintiff 212 213 Executory Decree Is of no force in Equity 232 Existen
any other thing which lies in Grant and the Deed is lost or cancelled the Office or the thing granted falls to the ground for the Deed is the foundation and a Case was cited in the Lord Dyer If there be two Iointenants and one cancels the Deed it hath destroyed the Right of the other Quaere of these things But it was agreed that if two Men who have one Office for their Lives and the survivor of them if one surrenders to the other and then a new Grant is made to this other and a Stranger he hath debarred himself of the Survivorship and he and the Stranger are jointly seised Crossman versus Sir John Churchil IN a Quare Impedit the Plaintiffs Title was set forth in his Declaration which was also found in a Special Verdict Where an Agreement for a Presentation by turns is good that Sir George Rodney was seised of the Advowson in Fée and died seised leaving two Sisters who were his Coheirs that Sir John Rodney being also one of the same Family and pretending a Right to the Estate for preventing Suits that might happen they all enter into an Agréement by Indentures mutually executed by which it was agreed that Sir John Rodney shall hold some Lands in severalty and the Co-heirs shall hold other Lands in the like manner and as for this Advowson a temporary provision was made thereof that each of them should Present by turns and this was to continue till partition could be made then comes an Act of Parliament and confirms the Indenture and Enacts That every Agreement therein contained shall stand and that all the rest of the Lands not particularly named and otherwise disposed by the said Indenture should be held by these three in common one of the three who by Agréement was next to Present grants the next Avoidance the Church being then full to the Plaintiff and the Question was whether these threé persons were not Tenants in Common of the Advowson and if so then the Grant of the next Avoidance cannot be good by one alone because he hath not the whole Advowson but only a Right to the third part It was said that if Tenants in Common had made such an Agreément it would not have beén any division of their interest for there must be a partition to sever the Inheritance The Court were all of Opinion Curia that Iudgment should be given for the Plaintiff for there was an Agréement that there shall be a Presentation by turns and therefore for one turn each hath a Right to the whole Advowson by reason of the Act of Parliament by which that Agreement is confirmed and thereby an Interest is setled in each of them till Partition made but this Agreement would have vested no Interest in either of them without an Act of Parliament to corroborate it therefore there had been no remedy upon it but by an Action of Covenant This Case was argued four times and not one Authority cited The Earl of Shaftsbury versus Lord Digby In Banco Regis For Words upon the Statute of 2 R. 2. c. 5. Jones 49. SCandalum Magnatum The Plaintiff declares upon the Statute of 2 R. 2. cap. 5. for these Words viz. You are not for the King but for Sedition and for a Common-wealth and by God we will have your Head the next Sessions of Parliament After Verdict for the Plaintiff and 1000 l. damages given it was moved in Arrest of Iudgment and several Exceptions taken 1. As to the Recital of the Statute the Words of which are That no Man shall devise any Lies c. and the Plaintiff for the Word devise had used the Latin Word contrafacio in his Declaration which was very improper that being to counterfeit and not to devise for it should have béen machino or fingo those are more expressive Words of Devise 2. 'T is alledged that the Defendant dixit mendacia of the Plaintiff viz. haec Anglicana verba sequen̄ and doth not alledge that he spoke the Words 3. The most material Objection was a mistake in the Recital of the Statute the Words of which are That none shall speak any scandalous Words of any Dukes Earls c. the Justices of either Bench nor of any other great Officer of the Kingdom but the Plaintiff in his Declaration recites it thus viz. None shall speak any scandalous Words of any Dukes Earls c. Justices of either Bench great Officers of the Kingdom and leaves out the Words neque al so that it must be construed thus None to speak of any Dukes Earls c. being great Officers of the Kingdom and then 't is not enough that the Plaintiff is Comes but he also ought to be a great Officer of the Kingdom which is not set out in this Case But upon great Debate and Deliberation these Exceptions were overruled and the whole Court gave Iudgment for the Plaintiff As to the first Exception they said contrafacio is a legal Word and apt enough in this sense and so are all the Presidents and thus it was pleaded in the Lord Cromwel's Case As to the second Exception it was said the Mendacia which were told were the English Words which were spoken and the viz. haec Anglicana verba sequen̄ being in the Accusative Case are governed by the same Verb which governs the Words precedent viz. horribilia mendacia Besides for the supporting of an Action the viz. may be transposed and then it will be well enough viz. the Defendant spoke haec Anglicana verba viz. Lies of the Plaintiff As to the third Exception it was answered that the Plaintiff neéd not recite the Statute it being a * Sid. 348. general Law and admitting there was no necessity yet if he will undertake to recite it and mistake in a material Point 't is incurable but if he recites so much as will serve to maintain his own Action truly and mistakes the rest this will not vitiate his Declaration and so he hath done here by reciting so much of the Statute which Enacts That no Man shall speak any scandalous Words of an Earl which is enough he being an Earl to entitle him to an Action and he concludes prout per eundem Actum plenius liquet and the Court grounded themselves principally upon a Iudgment given in this Court which was thus viz. There was a Robbery committed and the Party brought an Action upon the Statute of Huy and Cry in which he recited incendia domorum 13 E. 1. cap. 1. the said Statute beginning Forasmuch as from day to day Robberies Murders burning of Houses c. and the Presidents are all so But the Parliament Roll is Incendia generally without domorum and it was strongly urged that it was a misrecital which was fatal But the Court were all of Opinion that the Plaintiffs Case being only concerning a Robbery for which the Statute was well recited and not about burning which was mistaken it was for that reason good
enough and Iudgment was given accordingly When this Cause was tried at the Barr which was in Easter-Term last the Lord Mohun offered to give his Testimony for the Plaintiff but refused to be sworn offering to speak upon his Honour but Iustice Wyld told him in Causes between Party and Party he must be upon his Oath The Lord Mohun asked him whether he would answer it The Iudge replyed that he delivered it as his Opinion and because he knew not whether it might cause him to be questioned in another place he desired the rest of the Iudges to deliver their Opinions which they all did and said he ought to be sworn and so he was but with a salvo jure for he said there was an Order in the House of Peers That 't is against the Priviledge of the House for any Lord to be sworn Anonymus DEBT upon the Statute for not coming to Church and concludes Per quod Actio accrevit eidem Domino Regi quer̄ ad exigend ' habend ' The Exception after Iudgment was taken that it ought to have been only Actio accrevit eidem the Plaintiff qui tam c. and not exigend ' habend ' for the King and himself Sed non allocatur For upon search of Presidents the Court were all of Opinion that it was good either way Anonymus Factor where he cannot sell but for ready Mony IN Accompt Iudgment was given quod computet and the Defendant pleads before the Auditors that the Goods whereof he was to give a reasonable accompt were bona peritura and though he was carefull in the keeping of them yet they were much the worse that they remained in his hands for want of Buyers and were in danger of being worse and therefore he sold them upon Credit to a Man beyond Sea The Plaintiff demurred and after Argument by Barrel Serjeant for the Plaintiff and Baldwin Serjeant for the Defendant the whole Court were of Opinion that the Plea was not good Curia For if a Merchant deliver Goods to his Factor ad merchandizand ' he cannot sell them upon Credit but for ready Mony unless he hath a particular Commission from his Master so to do for if he can find no Buyers he is not answerable and if they are bona peritura and cannot be sold for Mony upon the delivery the Merchant must give him authority to sell upon Trust If they are burned or he is robbed without his own default he is not lyable and in this Case it was not pleaded that he could not sell the Goods for ready Mony and the Sale it self was made beyond Sea where the Buyer is not to be found like the Case of * 1 Bulst 103. Yelv. 202. Sadock and Burton where in Accompt against a Factor he pleads that he sold the Iewel to the King of Barbary for the Plaintiffs use and upon a Demurrer the Plea was held naught for when a Factor hath a bare Authorty to sell in such Case he hath no power to give a day of payment but must receive the Mony immediately upon the Sale Therefore in the Case at Barr if the Master is not bound by the Contract of the Servant without his Consent or at least the Goods coming to his use neither shall the Servant have Authority to sell without ready Mony unless he hath a particular Order for that purpose There was another thing moved in this Case for the Plaintiff that the Plea ought to be put in upon Oath for having pleaded that he could not sell without loss he ought to swear it Fitzh Accompt 47. But no Opinion was delivered herein only the Chief Iustice said that the Plaintiff ought to have required the Plea upon Oath for otherwise it was not necessary But for the substance of the Plea it was held ill and Iudgment was given for the Plaintiff Harris's Case SErjeant Hopkins moved for a Prohibition The Case was Husband dies his Wife Executrix she dies before Probate Administration must be to the next of kin of the Husband 22 23 Car. 2. cap. 10. A Man makes a Will and appoints his Wife to be Executrix and devises a Shilling to his Daughter for a Legacy and dies the Executrix before Probate of the Will dies also intestate and whether the Goods shall be distributed by the Act for settling Intestates Estates amongst the next of kin to the Executrix or to the next of kin to the Testator her Husband was the Question Since she dying before Probate her Husband in Iudgment of Law died also intestate This Case seems to be out of the Statute the Husband having made a Will and the Act intermeddles only where no Will is made The Court delivered no Iudgment in it but seemed to incline that the Statute did extend to this very Case and that Administration must be committed to the next of kin of the Husband but if there should be no distribution it must then be according to the Will of the Testator Reder versus Bradley IT was moved to reverse a Iudgment given in an Honour Court upon a Writ of false Iudgment brought here Judgment reversed in an inferior Court where the damage was laid to 30 l. The Plaintiff declared in the Action below that there was a Communication between him and the Defendant concerning the Service of his Son and it was agreéd between them that in consideration the Plaintiff would permit his Son to serve him the Defendant promised to pay the Plaintiff 30 s. The Plaintiff avers that he did permit his Son to serve him and that the Defendant hath not paid him the 30 s. There was a Verdict for the Plaintiff and the Exceptions now taken were 1. 'T is not said that the Iurors were electi ad triand ' c. 2. He lays his damage to 30 l. of which a Court Baron cannot hold Plea for the difference taken by my Lord Coke is where Damages are laid under 40 s. Costs may make it amount to more but where 't is laid above in such Case all is coram non Judice for which reason Iudgment was reversed but in this Court the Iudge doth not pronounce the Reversal as 't is done in the Kings Bench. Lane versus Robinson Inferior Court TRespass for taking of his Cattel the Defendant justifies by vertue of an Execution in an Action of Trespass brought in a Hundred Court and the Plaintiff demurred Serjeant Pemberton took two Exceptions to the Plea 2 Cro. 443 526. Hob. 180. Sid. 348. 1. Because the inferior Court not being of Record cannot hold Plea of a Trespass quare vi armis contra pacem but it was not allowed for Trespasses are frequently brought there and the Plaintiff may declare either vi armis or contra pacem Postea 2. The Defendant reciting the Proceedings below saith taliter processum fuit whereas he ought particularly to set forth all that was done because not being in a Court
reason alone the Plaintiff had no cause of Demurrer for the Defendant may well disclose the matter of Law in Pleading which is a much cheaper way than to have a Special Verdict and that this is on the same reason of giving of colour but if the matter by which the Defendant justifies be all matter of Fact and proper for the Tryal of a Iury then the Dfendant ought to plead the General Issue And as to the Matter of the Plea the Chief Iustice and Wyndham Iustice held it to be good for the Common which was pleaded was a Common by Grant and not argumentatively pleaded for if the Defendant had pleaded an express Grant of Common in those two places and the Plaintiff had demanded Oyer of the Deed it would have appeared that there was no such Deed and this had been a good cause of Demurrer If this Plea should not be good it would be very mischievous to the Defendant for there being a perpetual Vnity as to the Freehold there can be no Prescription to the Common but there being a constant enjoyment thereof by the Tenants and so a perpetual Vsage and a Grant made referring to that Vsage 't is well enough And since whilst the Lands were in possession of the Lord the Commoners could not complain of a Surcharge why should they if he grant the Premisses the Granteé being in loco c. In the Case of the King a Grant of tot talia Libertates Privilegia quot qualia the Abbot lately had 9 Co. 23. Abbot de Strata Marcella was held good by such general Words Here the Lord Paget granted to the Defendant that which the Lessées had before viz. that Common which the Tenants had time out of mind and it cannot be conceived but that the Tenants had a Right for as a Tort cannot be presumed to be from time immemorial so neither shall it be intended that the Lord gave only a Licence and permitted his Tenants to enjoy this Common But Iustice Atkins was of Opinion that the Plea was not good he said he knew not by what Name to call this Common for it was no more than a Permission from the Lord that the Tenants might put their Cattle into his Freehold or a Connivance at them for so doing and if it be taken as a new Grant then nothing can pass but the Surplus for the Lord cannot derogate from his former Grant and the new Grantee shall not put in an equal proportion with him who hath the Prescription for if he may then such Prescription would be quite destroyed by such puisne Grant for as the Lord might grant to one so he might to twenty and then there would not be sufficient Common left for him who prescribes to the Right So that he conceived that the Defendant had no Right of Common or if he had any it would not be till after the Right of the Plaintiff was served and he said that Vsage shall not intend a Right but it may be an Evidence of it upon a Tryal But if there had been an Vsage 't is now lost by the Vnity of the Possession and shall not be revived by the new Grant like the Case of Massam and Hunter Yelv. 189. there was a Copyholder of a Messuage and two Acres in Feé which the Lord afterwards granted and confirmed to him in Fee cum pertinentiis it was adjudged that though the Tenant by Vsage had a Right to have Common in the Lord's Wast yet by this new Grant and Confirmation that Right was gone the Copyhold being thereby extinguished for the Common being by Vsage and now lost these Words cum pertinentiis in the new Grant will not revive it But notwithstanding Iudgment by the Opinion of the other three Iustices was given for the Defendant Week's Case A Prohibition was prayed to the Ecclesiastical Court at Bristol the Suggestion was that he was excommunicated for refusing to answer upon Oath to a Matter by which he might accuse himself viz. to be a Witness against another that he himself was present such a day and saw the other at a Conventicle which if he confessed they would have recorded his Confession of being present at a Meeting and so have proceeded against him The Court granted a Prohibition but ordered him to appear in the Ecclesiastical Court to be examined as to the other persons being there Anonymus A Man wins 100 l. of another at play Gaming not within the Statute where the Security is given to a third person the Winner owed Sharp 100 l. who demanded his Debt the Winner brought him to the other of whom he won the Mony at Play who aknowledged the Debt and gave Sharp a Bond for the payment of the 100 l. who not being privy to the Matter or knowing that it was won at Play accepted the said Bond and for default of payment puts it in Suit the Obligor pleads the Statute of Gaming The Plaintiff in his Replication discloseth the Matter aforesaid and saith that he had a just Debt due and owing to him form the Winner and that he was not privy to the Monies being won at Play c. and that he accepted of the said Bond as a Security for his Debt and the Defendant demurred And the Court were all of Opinion Hill and Phesant Antea that this Case was not within the Statute the Plaintiff not knowing of the Play and though it be pleaded that the Bond was taken pro Securitate and not for satisfaction of a just Debt it was held well enough like the Case of Warns and Ellis Yelv. 47. Warns owed Alder 100 l. upon an usurious Contract and Alder owed the Plaintiff Ellis 100 l. for which they were both bound and in an Action of Debt brought upon this Bond Warns pleads the Statute of Vsury between him and Alder and Ellis replyed as the Plaintiff here and upon a Demurrer it was adjudged for the Plaintiff by thrée Iudges because the Plaintiff had a real Debt owing him and was not privy to the Vsury And upon this Case the Court relyed and said the Reason of it governed this Case at the Barr whereupon Iudgment was given for the Plaintiff Tissard versus Warcup INdebitatus Assumpsit for 750 l. laid out by the Plaintiff for the use of the Defendant Vpon Non assumpsit pleaded there was a Tryal at the Barr and the Evidence was that the Defendant and another now deceased farmed the Excise that the Mony was laid out by the Plaintiff on the behalf of the Defendant and his Partner and that the Defendant promised to repay the Mony out of the first Profits he received Curia And by the Opinion of the whole Court this Action would not lie 1. Two Partners being concerned the Action cannot be brought against one alone he ought in this Case to have set out the death of the other But if Iudgment be had against one the Goods in Partnership may be