such power nay if he have Children they must be living at his death Further by these Provisoes if the Contingencies do happen he hath but a power to declare the Vses he hath no Interest in him at all Litt. Sect. 463. It is one thing to have a power or possibility of limiting an Interest another to have an Interest vested 7 Rep. 11. Moor's Reports 366. about the delivery of a Ring where they hold that if it had been to have been done with his own hand it had not been forfeited The case of Sir Edward Clere is different from ours for if a man make a feoffment to the use of his last Will or to the use of such persons as shall be appointed by his last Will in this case he remains a perfect owner of the Land But if a man makes a Conveyance with power to make Leases or to make an Estate to pay Debts he hath here no Interest but a naked power The Duke of Norfolk's case is full in the point A Conveyance to the use of himself for life the Remainder to his Son in Tail with power to revoke under Hand and Seal adjudged not forfeited and yet he had a power to declare his mind as in our case Pagett's case Moor 193 194. Keeling If this way be taken a man may commit Treason pretty cheaply Twisden Whoever hath a power of Revocation hath a power of Limitation The reason is because else the feoffées would be seized to their own Vse Sir William Shelly's case in Latch Twisden There is no difference betwixt the Duke of Norfolk's case and this only here it is under his hand writing and there under his proper hand writing Afterward Term. Pasch 23 Car. 2. 1671. the Court delivered their Opinions Hales being then Chief Iustice Morton I conceive the Iudgment in the Common-Pleas is well given As for the first point whether this Conveyance made by Sir Simon Mayn be fraudulent or not the Counsel themselves have declined it and therefore I shall say nothing to it For the second I conceive no larger Interest is forfeited then during the Life of the Father If it be objected that the Father had by this Proviso jus disponendi I answer it is true he had a power if he had been minded so to do but it was not his mind and Will Now animus hominis est ipse homo but he must not only be minded so to do but he must declare his pleasure Hobart saith if a man will create a power to himself and impose a Condition or Qualification for the Execution of it it must be observed Now here is a personal and individual power seated in the heart of a man And it seems to me a stronger case then that of the Duke of Norfolk put in Englefield's case where yet the Condition was not given to the King by the Statute of Hen. 8. There was a later case adjudged in Latch betwéen Warner and Hynde a case that walked through all the Courts in Westminster-hall there by reason of the ipso declarante it could not be forfeited Rainsford I hold it is not forfeited My reason is because the Proviso is at an end and determined for when he dyed and made no Will there 's an end of the Proviso The altering of the old Trust is to be done by Sir Simon Mayn and it is inseparable from his person nothing can be more inseparable then a mans Will Moor 193. Twisd I am of the same Opinion Hales was of the same Opinion that nothing was forfeited but during Sir Simon 's life The Proviso he said did not create a Trust but potestatem disponendi which is not a Trust He said he did not understand the difference betwéen the Duke of Norfolk's case and this Accordingly the Iudgment was affirm'd In a cause wherein one Aston was Attorney Keeling said That a man may discontinue his Action here before an Action brought in the Common-Pleas But if he do begin there and then they plead another Action depending here and then they discontinue I take it the Attorney ought to be committed for this practice Twisden When I was at the Bar Error was brought and Infancy assigned when the Man was thirty years old and the Attorney was threatned to be turned out of the Roll. Serjeant Newdigate moved for a Certiorari to remove an Indictment hither from Bedford against several Frenchmen for Robbery Keeling Will it remove the Recognisances there to appear Twisden I never knew such a motion made by any but the King's Attorney or Solicitor Rainsford There is no Indictment yet before a Iudge of Assise Keeling You may have a Certiorari but it must not be delivered till the Indictment be found and then the Iudge hath the Prosecutors there and may bind them over hither and so the Trial may be here Keel A Iury was never ordered to a view before their appearance unless in an Assise Twisd Neither shall you have it here but by consent Nosworthy versus Wyldeman THe Plaintiff declares in an Indeb Assumpsit that the Defendant was endebted to him in 50 l. for so much money received of the Plaintiff by one Thomas Buckner by the appointment and to the use of the Defendant After a Verdict for the Plaintiff it was moved in Arrest of Iudgment that the Plaintiff could not have an Action for money received by the Defendant to the use of the Defendant But because it might be money lent which the Defendant received to his own use though he was to make good the value to the Plaintiff the Court will presume after a Verdict that it appeared so to the Iury at the Trial. For where a Declaration will bear two constructions and one will make it good and the other bad the Court after a Verdict will take it in the better sense And accordingly the Plaintiff had Iudgment Willams versus Lee. AN Action of Account It was prayed that the Court would give further day for giving the Account the matter being referred to Auditors Twisden The Auditors themselves must give further day Keeling The Auditors are Iudges whether there be a voluntary delay or not If they find the parties remiss and negligent they must certifie to the Court that they will not account Roberts Mariott MOved to discontinue an Action of Debt upon a Bond. Keeling We will not favour Conditions Ruled that the other side should shew cause why they should not discontinue Buckly versus Turner ACtion upon the case upon a Promise The case was that Edward Turner Brother to the Defendant was endebted to the Plaintiff for a Quarters Rent and the Defendant in consideration that the Plaintiff mitteret prosequi praedictum Edwardum Turner so the words are in the Declaration promised to pay the money After a Verdict for the Plaintiff it was moved in Arrest of Iudgment that here is not any consideration for there is no loss to the Plaintiff in sending to prosecute c. nor any benefit but
tried at Common Law though the Subjectum circa quod be Spiritual 2 Rolls 285. placito 45. 2 Rolls 283. Wadworth Andrewes Shall a six-Clark prefer a Bill in Equity for his Fees But a Prohibition was granted quoad c. Glever versus Hynde alios GLever brought an Action of Trespass of Assault and Battery against Elizabeth Hynde and six others for that they at York-Castle in the County of York him the said Plaintiff with force and arms did Assault beat and evil entreat to his damage of 100 l. The Defendants plead to the Vi armis not-guilty to the Assault beating and evil entreating they say that at such a place in the County of Lancaster one _____ Jackson a Curate was performing the Rites and Funeral obsequies according to the usage of the Church of England over the body of _____ there lying dead and ready to be buried and that then and there the Plaintiff did maliciously disturb him that they the Defendants required him to desist and because he would not that they to remove him and for the preventing of further disturbance molliter ei manus imposuerunt c. quae est eadem transgressio absque hoc that they were guilty of any Assault c. within the County of York or any where else extra Comitatum Lancastriae The Plaintiff demurs Turner pro Querente The Defendants do not show that they had any Authority to lay hands on the Plaintiff as that they were Constables Church-wardens or any Officers nor do they justifie by the Authority of any that were If they had pleaded that they laid hands on him to carry him before a Iustice of Peace perhaps it might have alter'd the case The Plaintiff here if he be faulty is lyable to Ecclesiastical Censure and the Statute of Ph. Ma. ann 1. cap. 3. provides a remedy in such cases Jones contra If the Statute of Ph. Ma. did extend to this case yet it does not restrain other ways that the Law allows to punish the Plaintiff or keep him quiet Our Saviour himself has given us a President he whipt buyers and sellers out of the Temple which act of buying and selling was not so great an impiety as to disturb the worship of God in the very act and exercise of it Court The St. of 1 Ph. Ma. concerns Preachers only but there is another Act made 1 Eliz. that extends to all men in Orders that perform any part of publick Service But neither of these Statutes take away the Common Law And at the Common Law any person there present might have removed the Plaintiff for they were all concern'd in the Service of God that was then performing so that the Plaintiff in disturbing it was a Nusance to them all and might be removed by the same rule of Law that allows a man to abate a Nusance Whereupon Iudgment was given for the Defendant Nisi causa c. Anonymus ACtion sur le Case The Plaintiff declares that whereas the Testator of the Defendant was endebted to the Plaintiff at the time of his death in the sum of 12 l. 10 s. that the Defendant in consideration of forbearance promised to pay him 5 l. at such a time and 5 l. more at such a time after and the other 50 shillings when he should have received money then avers that he did forbear c. and saith that the Defendant paid the two five pounds but for the 50 shilllings residue that he hath received money but hath not paid it The Defendant pleaded non Assumpsit which was found against him Wilmot moved in arrest of Iudgment that the Plaintiff doth not set forth how much money the Defendant had received who perhaps had not received so much as 50 shillings he said though the promise was general yet the breach ought to be laid so as to be adequate to the consideration And secondly that the Plaintiff ought to have set forth of whom the Defendant received the money and when and where because the receit was traversable The Court agreed that there was good cause to demur to the Declaration but after a Verdict they would intend that the Defendant had received 50 shillings because else the Iury would not have given so much in damages and for the other exception they held that the Defendant having taken the general issue had waived the benefit thereof Alford Tatnell GRegory Melchisedec Alford were bound joyntly to Tatnell in a Bond of 700 l. the Obligee brought several Actions and obtained two several Iudgments in this Court against the Obligors and sued both to an Outlawry And in Mich. Term. 18 Car. 2. both were returned outlawed In Hill Term following Gregory Alford was taken upon a Cap. utlagatum by Browne Sheriff of Dorset-shire who voluntarily suffered him to escape Tatnell brought an Action of Debt upon this escape against Browne and recover'd and receiv'd satisfaction notwithstanding which he proceeded to take Melchisedec Alford who brought an Audita querela and set forth all this matter in his Declaration but upon a demurrer the Opinion of the Court was against the Plaintiff for a fault in the Declaration viz. because the satisfaction made to the Plaintiff by the Sheriff was not specially pleaded viz. time and place alledged where it was made for it is issuable and for ought appears by the Declaration it was made after the Writ of Audita querela purchased and before the Declaration The Court said if Tatnell had only brought an Action on the case against the Sheriff and recovered damages for the escape though he had had the damages paid that would not have béen sufficient ground for the Plaintiff here to bring an Audita querela but in this case he recovered his Original debt in an Action of debt grounded upon the escape which is a sufficient ground of Action if he had declared well They gave day to show cause why the Declaration should not be amended paying Costs Anonymus AN Action of False Imprisonment The Defendants justifie by vertue of a Warrant out of a Court within the County Palatine of Durham to which the Plaintiff demur'd The material part of the Plea was That there was antiqua Curia tent coram Vicecomite Comitatus c. vocat The County Court which was accustomed to be held de 15 diebus in 15 dies and that there was a Custom that upon a Writ of questus est nobis issuing out of the County Palatine of Durham and delivered to the Sheriff c. that upon the Plaintiffs affirming quandam querelam against such person or persons against whom the questus est nobis issued the Sheriff used to make out a Writ in the nature of a cap. ad satisfac against him or them c. that such a Writ of questus est nobis issued ex Cur ' Cancellarii Dunelm which was delivered to the Sheriff who thereupon made a precept to his Bayliffs to take the Plaintiff who thereupon was arrested which
Man brings an Action of Debt against B. Sheriff of the County Palatine of Lancaster and sues him to an Outlawry upon mean Process and has a Capias directed to the Chancery of the County Palatine who makes a Precept to the Coroners of the County being six in all to take his body and have him before the Kings Iustices of the Court of Common-Pleas at Westminster such a day One of the Coroners being in sight of the Defendant and having a fair opportunity to Arrest him doth it not but they all return non est inventus though he were easie to be found and might have been taken every day Hereupon the Plaintiff brings an Action against the Coroners and lays his Action in Middlesex and has a Verdict for 100 l. Serj. Baldwin moved in Arrest of Iudgment that the Action ought to have been brought in Lancaster he agreed to the cases put in Bulwer's case 7 Rep. where the cause of Action arises equally in two Counties but here all that the Coroners do subsists and determines in the County Palatine of Lancaster for they make a Return to the Chancery of the County Palatine only and it is he that makes the Return to the Court He insisted upon Dyer 38 39 40. Husse Gibbs 2. He said this Action is grounded upon two wrongs one the not arresting him when he was in sight the other for returning non est inventus when he might easily have been taken now for the wrong of one all are charged and entire damages given He said two Sheriffs make but one Officer but the case of Coroners is different each of them is responsible for himself only and not for his Companion Serjeant Turner Pemberton contra They said the Action was well brought in Middlesex because the Plaintiffs damage arose here viz. by not having the body here at the day They cited Bulwer's case Dyer 159. b. the Chancery returns to the Court the same answer that the Coroners return to him so that their false Return is the cause of prejudice that accrues to the Plaintiff here The ground of this Action is the return of non est inventus which is the act of them all that one of them saw him and might have arrested him and that the Defendant was daily to be found c. are but mentioned as arguments to prove the false Return And they conceived an Action would not lie against one Coroner no more then against one Sheriff in London York Norwich c. But to the first exception taken by Baldwin they said admitting the Action laid in another County then where it ought yet after Verdict it is aided by the Statute of 16 17 Car. 2. if the Ven. come from any place of the County where the Action is laid it is not said in any place of the County where the cause of Action ariseth now this Action is laid in Middlesex and so the Trial by a Middlesex Iury good let the cause of Action arise where it will Cur̄ That Statute doth not help your case for it is to be intended when the Action is laid in the proper County where it ought to be laid which the word proper County implies But they inclined to give Iudgment for the Plaintiff upon the reasons given by Turner Pemberton Adjornatur Bird Kirke IT was resolved in this case by the whole Court 1. That if there be Tenant for life the Remainder for life of a Copy-hold and the Remainder-man for life enter upon the Tenant for life in possession and make a surrender that nothing at all passeth hereby for by his entry he is a Disseisor and has no customary Estate in him whereof to make a surrender 2. That when Tenant for life of a Copy-hold suffers a Recovery as Tenant in Fee that this is no forfeiture of his Estate for the Free-hold not being concern'd and it being in a Court-Baron where there is no Estoppell and the Lord that is to take advantage of it if it be a forfeiture being party to it it is not to be resembled to the forfeiture of a Free-Tenant that Customary Estates have not such accidental qualities as Estates at Common Law have unless by special Custom 3. That if it were a forfeiture of this and all other forfeitures committed by Copy-holders the Lord only and not any of those in Remainder ought to take advantage And they gave Iudgment accordingly North Chief Justice said that where it is said in King Lord's case in Cr. Car. that when Tenant for life of a Copy-hold surrenders c. that no use is left in him but whosoever is afterward admitted comes in under the Lord that that is to be understood of Copy-holds in such Mannors where the Custom warrants only Customary Estates for life and is not applicable to Copy-holds granted for life with a Remainder in Fee Anonymus A Writ of Annuity was brought upon a Prescription against the Rector of the Parish Church of St. Peter in c. the Defendant pleads that the Church is overflown with the Sea c. the Plaintiff demurs Serjeant Nudigate pro Querente The Declaration is good for a Writ of Annuity lies upon a prescription against a Parson but not against an heir F. N. B. 152. Rastall 32. the plea of the Church being drowned is not good at best it is no more then if he had said that part of the Glebe was drowned it is not the building of the Church nor the consecrated ground in respect whereof the Parson is charged but the profits of the Tythes and the Glebe Though the Church be down one may be presented to the Rectory 21 H. 7. 1. 10. H. 7. 13. 16 H. 7. 9. Luttrel's case 4 Rep. Wilmote contra The Parson is charged as Parson of the Church of St. Peter we plead in effect that there is no such Church and he confesseth it 21 Ed. 4. 83. Br. Annuity 39. 21 Ed. 4. 20. 11 H. 4. 49. we plead that the Church is submersa obruta c. which is as much a dissolution of the Rectory as the death of all the Monks is a dissolution of an Abbathie It may be objected that the Defendant has admitted himself Rector by pleading to it but I answer 1. An Estoppel is not taken notice of unless relyed on in pleading 2. The Plaintiff by his demurrer has confessed the Fact of our plea. By which mean the matter is set at large though we were estopped The Court was clearly of opinion for the Plaintiff The Church is the Cure of Souls and the right of Tythes If the material Fabrick of the Parish-Church be down another may be built and ought to be Judicium pro Quer ' nisi c. Term. Trin. 27 Car. II. in Communi Banco Vaughton versus Atwood alios TRespass for taking away some Flesh-meat from the Plaintiff being a Butcher The Defendant justifies by virtue of a Custom of the Mannor of c. that the Homage used
desirous to have the money paid before the day took another Bond for the same sum payable sooner and that this was in full satisfaction of the former Bond upon this plea the Plaintiff took issue and it was found against him And Serjeant Maynard moved that notwithstanding this Verdict Iudgment ought to be given for the Plaintiff for that the Defendant by his plea has confessed the Action and to say that another Bond was given in satisfaction is nothing to the purpose Hob. 68. so that upon the whole it appears that the Plaintiff has the right and he ought to have Iudgment 2 Cr. 139. 8 Co. 93. a. and day was given to shew cause why the Plaintiff should not have Iudgment Vide infra hoc eodem Termino Savill against the Hundred of THe Plaintiff in an Action upon the Stat. of Wint. had a Verdict and it was moved in arrest of Iudgment that the Felonious taking is not said to be in the High-way 2 Cro. 469 675. North. An Action lies upon the Stat. of Winton though the Robbery be not committed in the High-way to which the Court-agreed and the Prothonotaries said that the Entries were frequently so Per quod c. Calthrop Philippo ONe J. S. had recovered a Debt against Calthrop and procured a Writ of Execution to Philippo the then Sheriff of D. but before that Writ was executed Calthrop procured a Supersedeas to the same Philippo who when his year was out delivered over all the Writs to the new Sheriff save this Supersedeas which not being delivered J. S. procures a new Writ of Execution to the new Sheriff upon which the Goods of Calthrop being taken he brings his Action against Philippo for not delivering over the Supersedeas After a Verdict for the Plaintiff it was moved in arrest of Iudgment that the Action would not lie for that the Sheriff is not bound to deliver over a Supersedeas 1. Because it is not a Writ that has a return 2. Because it is only the Sheriffs Warrant for not obeying the Writ of Execution The Prothonotaries said that the course was to take out a new Writ to the new Sheriff Serjeant Strode argued that the Supersedeas ought to be delivered over because the Kings Writ to the old Sheriff is Quod Com' praedict ' cum pertinentiis uno cum rotulis brevibus memorandis omnibus officium illud tangentibus quae in custodia sua existunt liberet c. Reg. 295. 3 Co. 72. Westby's case Besides the Supersedeas is for the Defendants benefit and there is no reason why the Capias should be delivered over which is for the Plaintiffs benefit and not the Supersedeas which is for the Defendants And he said an Action will lie for not delilivering over some Writs to the new Sheriff though those Writs are not returnable as a Writ of Estrepement The Court inclined to his Opinion but it was adjourned to a further day on which day it was not moved Bascawin Herle versus Cooke THo Cook granted a Rent-charge of 200 l. per annum to Bascawin Herle for the life of Mary Cook habend ' to them their heirs and assigns ad opus usum of Mary and in the Indenture covenanted to pay the rent ad opus usum of Mary Bascawin Herle upon this bring an Action of Covenant and assign the breach in not paying the Rent to themselves ad opus usum of Mary The Defendant demurs 1. Because the words in which the breach is assign'd contain a negative pregnant Baldwin for the Plaintiff we assign the breach in the words of the Covenant Cur ' accord 2. Because the Plaintiff does not say that the money was not paid to Mary it would satisfie the Covenant 3. This Rent-charge is executed to Mary by the Stat. of Uses and she ought to have distrained for it for she having a remedy the Plaintiffs out of whom the Rent is transferred by the Statute cannot bring this Action Hereupon two questions were made 1. Whether this remedy by Action of Covenant be transferred to Mary by the Stat. of Uses or not And 2dly if not whether the Covenant were discharged or not North Wyndham When the Statute transfers an Estate it transfers together with it such remedies only as by Law are incident to that Estate and not collateral ones Atkyns accordant There is a clause in the Statute of 27 H. 8. c. 10. which gives the Cestuy que use of a Rent all such remedies as he would have had if the Rent had been actually and really granted to him but that has place only where one is seized of Lands in trust that another shall have a Rent out of them not where a Rent is granted to one to the use of another They agreed also that the Covenant was not discharged And gave Iudgment for the Plaintiff Nisi c. Higden versus VVhitechurch Executor of Dethicke A Udita Querela The Plaintiff declares that himself and one Prettyman became bound to the Testator for the payment of a certain sum that in an Action brought against him he was Outlawed that Dethick afterward brought another Action upon the same Bond against Prettyman and had Iudgment that Prettyman was taken by a Cap. ad satisfaciend ' and imprisoned and paid the Debt and was released by Dethick's consent upon this matter the Plaintiff here prays to be relieved against this Iudgment and Outlawry The Defendant protestando that the Debt was not satisfied pleads the Outlawry in disability The Plaintiff demurs Baldw. for the Plaintiff Non datur exceptio ejus rei cujus petitur dissolutio He resembled this to the cases of bringing a Writ of Error or Attaint in neither of which Outlawry is pleadable 3 Cr. 225. 7 H. 4. 39. 7 H. 6. 44. Seyse contra Outlawry is a good plea in Audita querela 2 Cr. 425. 8 Co. 141. this case is not within the maxime that has been cited a writ of Error and Attaint is within it for in both them the Iudgment it self is to be reversed But in an Audita querela you admit the Iudgment to be good only upon some equitable matter arising since you pray that no Execution may be upon it Vide 6 Ed. 4. 9. b. Jason Kite's case Mich. 12 Car. 2. Rot. 385. Adj. Pasch 13. Cur ' accord ' If the Iudgment had been erroneous and a writ of Error had been brought the Outlawry which was but a superstructure would fall by consequence but an Audita querela meddles not with the Iudgment the Plaintiff here has no remedy but to sue out his Charter of Pardon Blythe Hill supra 221. THe case being moved again appeared to be thus viz. The Plaintiff brought an Action of Debt upon a Bond against the Defendant as heir to the Obligor The Defendant pleaded that the Obligor his Ancestor dyed intestate and that one J. S. had taken out Letters of Administration and had given the Plaintiff
the Lady Ann Countess of Newport all that my House called Newport-house and all other my Lands c. in the County of Middlesex for her life And after her death I give and bequeath the premisses to my Grand-child Ann Knollis viz. the Plaintiff and to the heirs of her body Provided always and upon condition that she marry with the consent of my said Wife and the Earl of Warwick and the Earl of Manchester or of the major part of them And in case she marry without such consent or happen to dye without Issue Then I give and bequeath it to George Porter viz. the Defendant The Earl dyed Ann the Plaintiff married Charles the Plaintiff she being then about fourteen or fifteen years old without the consent of either of the Trustees And thereupon now a Bill was preferred to be relieved against this Condition and Forfeiture because she had no notice of this Condition and Limitation made to her c. To this the Defendant had demurred but that was over-ruled Afterwards there were several Depositions c. made and testified on each side the effect of which was this On the Plaintiffs part it was proved by several that it was always the Earls intention that the Plaintiff should have this Estate and that they never heard of this purpose to put any Condition upon her and believed that he did not intend to give away the Inheritance from her But that this Clause in the Will was only in terrorem and Cautionary to make her the more obsequious to her Grandmother The two Earls swore that they had no notice of this Clause in the Will but if they had they think it possible such reasons might have been offered as might have induced them to give their consents to the Marriage and that now they do consent to and approve of the same Some proof was made that the Countess of Newport had some design that the Plaintiff should not have this Estate but that the Defendant should have it But at last even she viz. the Countess was reconciled and did declare that she forgave the Plaintiffs Marriage and that she shewed great affection to a Child which the Plaintiff had and directed that when she was dead the Plaintiff and her Child should be let into the possession of the premisses and should enjoy them c. It was proved also that when there had been a Treaty concerning the Marriage betweén my Lord Morpeth and the Plaintiff and the Plaintiff would not marry him her Grandmother said she should marry where she would she would take no further care about her the Countess was dead at the time of this Suit It was proved that Mr. Fry was of a good Family and that the Defendant had 5000 l. appointed and provided for him by his Grandfather by the same Will On the Defendants part It was sworn by the said late Countess of Newport viz. In an answer made formerly to a Bill brought against her by the now Defendant for preferring of Testimony which was ordered to be read that the Marriage was private and without her consent and approbation and that she did not conceive it to be a fit and proportionable Marriage he being a younger Brother and having no Estate The like was sworn by the Earl of Portland the said Countesses then Husband and that it appeared she leapt over a Wall by means of a Wheel-Barrow set up against it to go to be married and that as soon as the Trusteés did know of the Marriage they did disavow and dislike it and so declared themselves several times and said That had they had any hint of it they would have prevented it Others swore that the Earl of Portland declared upon the day of her going away That he never consented thereto and that the Countess desired then that he would not do any thing like it and that the Earl of Warwick said He would have lost one of his Arms rather then have consented to the said Marriage On hearing of this Cause before the Master of the Rolls viz. Sir Harbottle Grimstone Baronet the Plaintiff obtained a decretal Order viz. That Anne the Plaintiff and her Heirs should hold the Premisses quietly against the Defendant and his Heirs and that there should be an Injunction perpetual against the Defendant and all claiming under him And now there was an Appeal thereupon and re-hearing before Sir Orlando Bridgman Knight then Lord-Keeper assisted by the two Lord Chief Justices and the Chief Baron before whom it was argued thus Serjeant Maynard The Plaintiff ought not to have relief in this Case The Plaintiffs Mother had a sufficient provision by the Earl of Newport's Care And therefore there is less reason that this Estate should be added to the Daughter The noble Lords the Trusteés when the thing was fresh did disapprove the Marriage however they may consent thereunto now The Devise was to the Plaintiff but in tail and afterwards to the Defendant We disparage not Mr. Fry in blood nor Family But people do not marry for that only but for Recompence and like Fortune There was a publique Fame or Report it is to be presumed of this Will in the house and were there not yet it was against her Duty and against Nature that she should decline asking her Grand-Mothers consent and Mr. Fry in Honour and Conscience ought to have asked it And therefore this practice ought not to receive the least encouragement in Equity 'T is true when there was a Demurrer it was over-ruled because the Bill prayed to be relieved against a Forfeiture for which there might be good cause in Equity But now it does not appear there is any in the Case The Estate is now in the Defendant and that not by any act of his own but by the Devisor and the Plaintiff this is a Limitation not a Condition For my Lord Newport had Sons It is somewhat of the same effect with a Condition though it is not so We have a Title by the Will of the dead and the act of the other party without fraud or other act of us and therefore it ought not to be defeated I take a difference betweén a devise of Land and money For Land is not originally devisable though Money is By the Civil Law and amongst civil Lawyers it has beén made a question Whether there shall be Relief against such a Limitation in a Devise But be that how it will Chattels are small things but a Freéhold setled ought not to be devested thus No man can make a Limitation in his Will better and stronger to disappoint his Devise conditionally than this is made If my Lord Newport had béen alive would he have liked such a practice upon his Grand-daughters as want of Notice In Organ's Case and Sir Julius Caesar's Case there was a Grant to an Infant on condition to pay 10 s. and no Notice given thereof before 't was payable yet because no body was bound to give notice it was adjudged
neither Keeling If an Infant let you a House shall he not have an Action against you for the Rent Twisd I have known an Action upon the case brought by an Infant upon a promise to pay so much money in consideration that he would permit the Defendant to enjoy such a House it was long insisted upon that this was not a good consideration because not reciprocal for the Infant might avoid his promise if an Action were grounded upon it against him but it was adjudged to be a good consideration and that the Action was maintainable And in the principal case the Court gave Iudgment for the Plaintiff Nisi c. Bear versus Bennett TWisden When a man is arrested and has lain in Prison three Terms and is discharged upon Common bail whether shall the Plaintiff ever hold the Defendant to special Bail afterward for the same cause if he begins anew Keel If he may then may a man be kept in Prison for ever at that rate At last it was agreed that if he would pay the Defendant his Costs for lying so long in prison he should have special Bail Mr. Masters moved for a Prohibition to the Spiritual Court to stay a Suit there against a man for having married his Wives Sisters Daughter alledging the Marriage to be out of the Levitical degrees Cur. Take a Prohibition and demur to it for it is a case of moment Dominus Rex versus Turnith MOved to quash an Indictment upon 5 Eliz. cap. 2. for exercising a Trade in Chesthunt in Hertfordshire not having been an Apprentice to it for seven years because the Statute says they shall proceed at the Quarter-Sessions and the word Quarter is not in the Indictment Twisden That word ought to be in And I believe the using of a Trade in a Country Village as this is is not within the Statute Morton accorded Rainesford It will be very prejudicial to Corporations not to extend the Statute to Villages Twisden I have heard all the Iudges say that they will never extend that Statute further then they needs must Obj. further That there wanted these words sc Ad tunc ibidem onerati jurati for which all the three Iudges Keeling being absent conceived it ought to be quash'd A cause was removed out of London by Habeas Corpus wherein the Plaintiff had declared against the Defendant as a feme sole Merchant and Bartue moved for a Procedendo because he said they could not declare against her here as a feme sole for that she had a Husband Jones contra The Husband may then be joyned with her for he is not beyond Sea Twisd I think a Procedendo must be granted for the cause alledged It was resolved in Langlin Brewin's case in Cro. though not reported by him that if the Wife use the same Trade that her Husband does she is not within the Custom And they are to determine the matter there whether this case be within their Custom perhaps a Victualler as this Trade is is not such a Trade as their Custom will warrant and whether it will warrant it or not is in their Iudgment A Procedendo was granted Tomlin versus Fuller A Special Action on the Case was brought for keeping a passage stopt up so that the Plaintiff could not come to cleanse his Gutter After Verdict for the Plaintiff it was moved in Arrest of Iudgment that there ought to have been a request for the opening of it Answ It s true where the Nusance is not by the party himself there must be notice before the Action brought but in this case the wrong began in the Defendants own time Twisden I know this hath been ruled where a man made a Lease of a House with free liberty of ingress c. through part of the Lessors House the Lessor notwithstanding might shut up his doors and was not bound to leave them open for his coming in at one or two of the Clock at night but he must keep good hours And must the Defendant in this case keep his Gate always open expecting him wherefore it seems he ought to have laid a request Cur. It s aided by the Verdict Twisden It is not good at the Common Law and the Defendant might well have demurred for that cause Judgment pro Querente Butler Play UPon a motion for a new Trial in a cause where the matter was upon protesting a Bill of Exchange Serj-Maynard said the protest must be on the day that the money becomes due Twisden It hath been ruled That if a Bill be denied to be paid it must be protested in a reasonable time and that 's within a Fortnight but the Debt is not lost by not doing it on the day A new Trial was denied Hughes Underwood KEeling The very Sealing of the Writ of Error is a Supersedeas to the Execution Twisd There was once a Writ of Error to remove the Record of a Iudgment between such and such but some of the parties names were left out and by my Brother Wyld's advice that Writ not removing the Record they took out Execution But the Court was of Opinion that though the Record was not removed thereby of which yet they said he was not Iudge whether it was or not yet that it so bound up the cause that they could not take out Execution It is indeed good cause to quash the Writ of Error when it comes up but Execution cannot be taken out Term. Hill 21 22 Car. II. 1669. in B. R. Jefferson Dawson IN a Scire facias upon a Recognisance in Chancery entered into by one Garraway There was a demurrer to part and issue upon part And the question was whether this Court could give Iudgment upon the demurrer Jones The Iudgment upon the demurrer must be given in Chancery The Court of Chancery cannot try an Issue and therefore it is sent hither to be tryed but with the demurrer this Court has nothing to do Indeed the books differ in case of an Issue sent hither out of Chancery whether the Iudgment shall be here or there Keilway says it ought to be given here My Lord Coke in his 4 Inst says it must be given in Chancery But none ever made it a question whether Iudgment upon a demurrer were to be given here or there V. Co. Jurisdiction of Courts fol. 80. Saunders contra When there is a demurrer upon part and Issue upon part the Record being here this Court ought to give Iudgment because there can be but one Execution Keeling If the Record come hither entirely we cannot send it back again I cannot find one Authority that the Record shall be removed from hence He cited Keilway 941. 21 H. 7. Co. 2. 12. Co. Entries 678. 24 Ed. 3. fol. 65. there it is held that Iudgment shall be given here upon a demurrer Now if it must not be given here there must be two Executions for the same thing or else they must loose half for they can
best Beast upon the Tenancy it must come on the other side to shew that it was not the Tenants Beast Keel The Cattel of a Stranger cannot be distrained unless they were levant couchant but it must come on the other side to show that they were not so So Judic pro Quer ' Wayman Smith AProhibition was prayed to the Court of Bristol upon this suggestion viz. That the cause of Action did not arise within the Iurisdiction of the Court Winnington There was a case here between Smith Bond Hill 17 Car. 2. Rot. 501. a Prohibition to Marleborough the suggestion grounded on Westm 1. cap. 34. granted And there needs not a Plea in the Spiritual Court to the Iurisdiction for that he cited F. N. B. 49. But he said he had an Affidavit that the cause of Action did arise out of their Iurisdiction Twisden I doubt you must plead to the Iurisdiction of the Court I remember a case here wherein it was held so and that if they will not allow it then you must have a Prohibition Winnington Fitzherbert is full Ruled that the other side shall shew cause why a Prohibition should not go and things to stay Humlock Blacklow DEbt upon a Bond for performance of Covenants in Articles of agreement The Plaintiff covenanted with the Defendant to assign over his Trade to him and that he should not endeavour to take away any of his Customers and in consideration of the performance of these Covenants the Defendant did Covenant to pay the Plaintiff 60 l. per annum during his life Saunders The words in consideratione performationis make it a Condition precedent which must be averred 3 Leon. 219. and those Covenants must be actually performed Twisden How long must he stay then till he can be entitled to his Annuity as long as he lives for this Covenant may be broken at any time That 's an Exposition that corrupts the Text. Judic nisi c. It was moved by one Hunt that the Venue might be changed in an Action of Indebitat Assumpsit brought by Mr. Wingfield Jones I conceive it ought not to be changed being in the case of a Counsellor at Law by reason of his attendance at this Court. Twisd In Mr. Bacon's case of Grays-Inn they refused to change the Venue in the like case So not granted An Indictment against one Morris in Denbigh-shire for Murther was removed into the Kings Bench by Certiorari to prevent the Prisoners being acquitted at the Grand-Sessions and the Court directed to have an Indictment found against him in the next English County viz. at Shrewsbury Vide infra Taylor Rouse Church-wardens of Downham versus their Predecessors THe Action was to make them Account for a Bell. They plead that they delivered it to a Bell-founder to mend and that it is yet in his hands The Plaintiff demurs the cause of his Demurrer was that this was no good Plea in Bar of the Account though it might be a good Plea before Auditors 1 Roll 121. Pemberton I conceive it is a good Plea for wherever the matter or cause of the Account is taken off the Plea is good in Bar. But he urged that the Action was brought for taking away bona Ecclesiae and not bona Parochianorum as it ought to have been Court The Property is not well laid So ordered to mend all and plead de novo Term. Mich. 22 Car. II. 1670. in B. R. AN Inquisition was returned upon the Statute against pulling down Inclosures They took Issue as to the damages only It was moved that before the Trial for the damages there might be Iudgment given to have them set up again having been long down Twisden When you have Iudgment for the damages then one Distringas will serve for setting up the Inclosures and the damages too As in an Action where part goes by default and the other part is traversed you shall not take out Execution till that part which is traversed be tried Vpon a motion by Mr. Dolbin for an Attachment Twisden said if a man has a Suit depending in this Court and be coming to Town to prosecute or defend it here he cannot be sued elsewhere But if a man come hither as a Witness he is protected eundo redeundo Wootton Heal. AN Action of Covenant was brought upon a Warranty in a Fine a term for years being Evicted Saunders I acknowledge that an Action of Covenant does well lye in this case but the Plaintiff assigns his breach in this viz. that one Stowell habens legale jus titulum did enter upon him and evict him which perhaps he did by virtue of a title derived from the Plaintiff himself 2 Cro. 315. Kirby Hansaker Jones contra To suppose that Stowell claimed under the Plaintiff is a foreign intendment and it might as well come on the Defendants side to show it And since that case in 2 Crook the Statute of 21 Jac. and the late Act have much strengthned Verdicts Twisden The Statutes do not help when the Court cannot tell how to give Iudgment The Plaintiff ought to entitle himself to his Action and it is not enough if the Iury entitle him Jones You have waived the title here and relyed upon the Entry of the Issue only which is non intravit c. Cur. advisare vult Lassells Catterton AN Action of Covenant for further assurance the Covenant being to make such Conveyance c. as Counsel should advise they alledge for breach that they tendred such a Conveyance as was advised by Counsel viz. a Lease and Release and set it forth with all the usual Covenants Levings moved in Arrest of Iudgment I conceive they have tendred no such Conveyance as we are bound to execute for we are not obliged to Seal any Conveyance with Covenants nor with a Warranty Besides that which they have tendred has a Warranty not only against the Covenantor but one Wilson 2 Cro. 571. 1 Rolls 424. Again our Covenant is to convey all our Lands in Bomer and the Conveyance tendred is of all our Lands in the Lordship of Bomer Twisden For the last exception I think we shall intend them to be both one And I know it hath been held that if a man be bound to make any such reasonable assurance as Counsel shall advise usual Covenants may be put in for the Covenant shall be so understood But there must not be a Warranty in it though some have held that there may be a Warranty against himself but I question whether that will hold But Weston on the other side said that the Objection as to the Warranty was fatal and he would not make any defence The King versus Morris Vid. sup MR. Attorney Finch shewed cause why a Certiorari should not be granted to remove an Indictment of Murder out of Denbighshire in Wales Twisden In 2 Car. 8 Car. it was held that a Certiorari did lye into Wales Morton By 34 H. 8. the Iustices
of the great Sessions have power to try all Murthers as the Iudges here have and the Statute of 26 H. 8. for the Trial of Murthers in the next English County was made before that of the 34 H. 8. Twisden I never yet heard that the Statute of 34 H. 8. had repealed that of 26 Henr. 8. It is true the Iudges of the Grand Sessions have power but the Statute that gives it them does not exclude this Court. To be moved when the Chief Iustice should be in Court Franklyn's Case FRanklyn was brought into Court by Habeas Corpus and the Return being read it appeared that he was committed as a Preacher at Seditious Conventicles Coleman prayed he might be discharged he said this Commitment must be upon the Oxford Act for the last Act only orders a Conviction and the Act for Vniformity Commitment only after the Bishops Certificate And the Oxford Act provides that it shall be done by two Iustices of the Peace upon Oath made before them and in this Return but one Iustice of Peace is named for Sir William Palmer is mentioned as Deputy Lieutenant and you will not intend him to be a Iustice of Peace Nor does it appear that there was any Oath made before them Twisden Vpon the Statute of the 18th of the Queen that appoints that two Iustices shall make Orders for the keeping of Bastard-children whereof one to be of the Quorum I have got many of them quash'd because it was not exprest that one of them was of the Quorum Whereupon Franklyn was discharged Vpon a motion for time to plead in a great cause about Brandy Twisden said if it be in Bar you cannot demand Oyer of the Letters Patents the next Term but if it be in a Replication you may because you mention the precedent Term in the Bar but not in the Replication Yard Ford. MOved by Jones in Arrest of Iudgment an Action upon the Case was brought for keeping a Market without Warrant it being in prejudice of the Plaintiffs Market He moved that the Action would not lie because the Defendant did not keep his Market on the same day that the Plaintiff kept his which he said is implied in the case in 2 Rolls 140. Saunders contra Vpon a Writ of Ad quod dampnum they enquire of any Markets generally though not held the same day In this case though the Defendants Market be not held the same day that ours is yet it is a damage to us in forestalling our Market Twisden I have not observed that the day makes any difference If I have a Fair or Market and one will erect another to my prejudice an Action will lye and so of a Ferry It s true for one to set up a School by mine is damnum absque injuria Ordered to be moved again Pawlett moved in Trespass that the Defendant pleaded in Bar that he had paid 3 l. and made a promise to pay so much more in satisfaction and said it was a good plea and did amount to an accord with satisfaction an Action being but a Contract which this was Twisden An Accord executed is pleadable in Bar but Executory not Twisden There are two clauses in the Statute of Vsury if there be a corrupt agreement at the time of the lending of the money then the Bonds and all the Assurances are void but if the agreement be good and afterward he receives more than he ought then he forfeits the treble value Bonnefield HE was brought into Court upon a Cap. Excom and it was urged by Pawlett that he might be delivered for that his name was Bonnefield and the Cap. Excom was against one Bromfield Twisden You cannot plead that here to a Cap. Excom You have no day in Court and we cannot Bail upon this but you may bring your Action of False Imprisonment Caterall Marshall ACtion upon the Case wherein the Plaintiff declares that in consideration that he would give the Defennant a Bond of sufficient penalty to save him harmless he would c. and sets forth that he gave him a Bond with sufficient penalty but does not eppress what the penalty was This was moved in Arrest of Iudgment Jones After a Verdict it is good enough as in the case in Hob. 69. Twisd If it had been upon a Demurrer I should not have doubted but that it had been naught Rainsford Morton But the Iury have judged the penalty to be reasonable and have found the matter of fact Twisden The Iury are not Iudges what is reasonable and what unreasonable but this is after a Verdict And so the Iudgment was affirm'd the cause coming into the Kings Bench upon a Writ of Error Martin Delboe AN Action upon the Case setting forth that the Defendant was a Merchant and transmitted several Goods beyond Sea and promised the Plaintiff that if he would give him so much money he would pay him so much out of the proceed of such a parcel of Goods as he was to receive from beyond Sea The Defendant pleaded the Statute of Limitations and doth not say non assumpsit infra sex annos but that the cause of Action did not arise within six years The Plaintiff demurs because the cause is betwéen Merchants c. Sympson The plea is good Accounts within the Statute must be understood of those that remain in the nature of Accounts now this is a sum certain Jones accorded This is an Action upon the Case and an Action upon the Case betwéen Merchants is not within the exception And the Defendant has pleaded well in saying that the cause of Action did not arise within six years for the cause of Action ariseth from the time of the Ships coming into Port and the six years are to be reckoned from that time Twisden I never knew but that the word Accounts in the Statute was taken only for Actions of account An insimul computasset brought for a sum certain upon an Account stated though betweén Merchants is not within the Exception So Iudgment was given for the Defendant The King versus Leginham AN Information was exhibited against him for taking unreasonable Distresses of several of his Tenants Jones moved in arrest of Iudgment that an Information would not lye for such cause Marlebr cap. 4. saith that if the Lord take an unreasonable Distress he shall be amerced so that an Information will not lye And my Lord Coke upon Magna Carta says the party grieved may have his Action upon the Statute but admit an Information would lye yet it ought to have been more particular and to have named the Tenants it is not sufficient to say in general that he took unreasonable Distresses of several of his Tenants And the second part of the Information viz. that he is communis oppressor is not sufficient Rolls 79. Moor 451. Twisden It hath so been adjudged that to lay in an Information that a man is communis oppressor is not good And a Lord cannot be indicted
Court and the Sheriff let him go into the Country it is an escape And though he be not bound to bring him the direct way because he may be rescued yet he ought not to carry him round about a great way for the accommodation of the party if he doth it is an Escape but by this Evidence you let him go back threescore miles to which there can be no answer An Habeas Corpus retornable immediate is not fixt to an hour but to a convenient time They answered that he went back to carry back some Writings Counsel Here is an escape of one of the parties who dies before the Action brought whereby the whole charge is survived to the other before the Action brought and whether this shall purge the Escape is the question or how far it shall purge it Wild. Before you brought your Action the Debt is gone as to the Escape Hales We are made the Engines of doing all the mischief if this shall go unpunished being by colour of an Habeas Corpus So the Iury brought in a Verdict for the Plaintiff who declared in Debt for 6200 l. Greene versus Proude A Trial at Bar The question whether a Will or no Will The Plaintiff produced a Deed indented made between two parties the Man and his Son and the Father did agree to give the Son so much and the Son did agree to pay such and such Debts and Sums of money And there were some particular expressions resembling the form of a Will as that he was sick of body and did give all his Goods and Chattels c. but the Writing was both Sealed and delivered as a Deed And they gave evidence that he intended it for his last Will which the Court said was a good proof of his Will Then the Defendant setting up an Entail the Plaintiff exhibited an Exemplification of a Recovery in the Marquess of Winchesters Court in ancient demesne The other side objected that they did not prove it a true Copy But because it was ancient the Court said they should not be so strict upon the Evidence of it for the other side said the Court Rolls were burned in Baseing-house in the time of the Wars Hales I remember a case where one had gotten a presentation to the Parsonage of Gosnall in Lincoln-shire and brought a Quare Impedit and the Defendant pleaded an Appropriation there was no Licence of Appropriation produced but because it was ancient the Court would intend it Then they objected that they ought to prove seisin in the Tenant to the Praecipe Hales It being an ancient Recovery we will not put them to prove that He said the Mayor of Bristol had offered in evidence an Exemplification of a Recovery under the Town Seal of Houses in Bristol the Records being burned and that Exemplification was allowed for Evidence Hales If Tenant in Tail accept a Fine come ceo c. this doth not not alter his Estate If Tenant for life accept of a Fine Sur conusance c. he doth forfeit his Estate but it doth not alter the Estate for life Objection The Recovery is of Land in Kingscleare whereas the Land claimed is in a particular Ville called And the Vills are several and there are distinct Courts in every Ville Hales There are several Tythings of Dale Sale and Downe there is a Tythingman in every particular place but the Constable of Dale goes through all these may go for several Vills or one Vill There may be a Mannor that hath several little Mannors within it wherein are held several Courts for the ease of the Tenants but all but one Mannor And a Writ of Right close is Quod plenam rectam c. and runs to the Bayliff of the Mannor and may extend to the Precinct of the whole Mannor as the Mannor of Barton hath several little Mannors under it yet all within the Mannor Hales Where there is a Writ of Right close in ancient demesne it is not like a demand to a Sheriff here where he hath his direction for so many Acres Maynard But then he must demand it in the particular Ville where it is Hales If a Praecipe quod reddat be of Land in a Parish where it must be in a Ville there may be exception to the Writ but if he recovers it is good for now the time is past And so where it is infra manerium if he recovers it is good Browne versus AN Action brought in Canterbury Town The Defendant removes it by Habeas Corpus Then the Plaintiff declares here It was moved that it might be tried in some other County because the Iudges came there so seldom Court Let them shew cause why they should not consent and if they will plead Nil debet the Plaintiff will be willing to let them give any thing in Evidence And Simpson said it was the Opinion of all the Iudges that upon Nil debet pleaded Entry and Suspension may be given in Evidence which the Court did not deny So the Court ordered the other side to shew cause why they should not consent One Hillyard an Attorney sued for his Fees in this Court in the Court at Bristol But the Court said an Attorney ought not to wave this Court A motion was made by Sir William Jones for the Lord Mayor Starling See Bushel's case reported in Vaughan's Reports and the Recorder Howell One Bushell brought an Action against them for False Imprisonment And because the plea was long he prayed he might have time to plead Hales I speak my mind plainly that an Action will not lye for a Certiorari and an Habeas Corpus whereby the body and proceédings are removed hither are in the nature of a Writ of Error And in case of an erroneous Iudgmene given by a Iudge which is reverst by a Writ of Error shall the party have an Action of False Imprisonment against the Iudge No nor against the Officer neither The Habeas Corpus and Writ of Error though it doth make void the Iudgment it doth not make the awarding of the Process void to that purpose and the matter was done in a course of Iustice They will have but a cold business of it An Habeas Corpus and Certiorari is a Writ of right the highest Writ the party can bring So day was given to shew cause Lord Tenham versus Mullins A Trial at Bar about a fraudulent Deed. Hales There are thrée things to be considered Fraud Consideration and Bona fide Now the Bona fide is opposite to Fraud I remember a case in Twine's case If the Son be dissolute and the Father with advice of Friends doth settle things so that he shall not spend all though here be not a consideration of money yet it is no fraudulent Deed and a Deed may be voluntary and yet not fraudulent otherwise most of the Settlements in England would be avoided and so said Twisden Blackburne versus Graves TRover for 100 Loads of Wood Not-guilty
cannot deprive us of the benefit of the Common Law and in the Vice-Chancellors Court they proceed by the Civil Law If you allow this demand there will be a failer of Justice for the Defendants being a Corporation cannot be arrested they can make no stipulation the Vice-Chancellors Court cannot issue Distringas's against there Lands nor can they be excommunicated Presidents we find of Corporations suing there as Plaintiffs in which case the afore-mentioned inconvenience does not ensue but none of Actions brought against Corporations Maynard contra Servants to Colledges and Officers of Corporations have been allowed the priviledge of the Vniversity which they could not have in their own right and if in their Masters right a fortiori their Masters shall enjoy it The word persona in the demand will include a Corporation well enough Vaughan Chief Justice Perhaps the words atque confirmat ' c. in the demand of Conisance are not material for the priviledges of the Vniversity are grounded on their Patents which are good in Law whether confirm'd by Parliament or not The word persona does include Corporations 2 Inst 536. per Coke upon the Statute of 31 Eliz. cap. 7. of Cottages and Inmates A demand of Conisance is not in derogation of the Common Law for the King may by Law grant tenere placita though it may fall out to be in derogation of Westminster-Hall Nor will there be a failer of Justice for when a Corporation is Defendant they make them give Bond and put in Stipulators that they will satisfie the Iudgment and if they do not perform the Condition of their Bond they commit their Bail They have enjoyed these priviledges some hundreds of years ago The rest of the Iudges agreed that the Vniversity ought to have Conisance But Atkyns objected against the form of the demand that the word persona privilegiata cannot comprehend a Corporation in a demand of Conisance howsoever the sense may carry it in an Act of Parliament Ellis Wyndham If neither Schollars nor priviledged persons had been mentioned but an express demand made of Conisance in this particular cause it had then been sufficient and then a fault if it be one in Surplusage and a matter that comes in by way of Preface shall not hurt Atkyns It is not a Preface they lay it as the foundation and ground of their claim The demand was allowed as to matter and form Rogers Danvers DEbt against S. Danvers and D. Danvers Executors of G. Danvers upon a Bond of 100 l. entred into by the Testator The Defendants pleaded that G. Danvers the Testator had acknowledged a Recognisance in the nature of a Statute Staple of 1200 l. to J. S. and that they have no assets ultra c. The Plaintiff replied that D. Danvers one of the Defendants was bound together with the Testator in that Statute to which the Defendants demur Baldwin pro Defendente If this plea were not good we might be doubly charged It is true one of us acknowledged the Statute likewise but in this Action we are sued as Executors And this Statute of 1200 l. was joynt and several so that the Conisee may at his Election either sue the surviving Conisor or the Executors of him that is dead so that the Testators Goods that are in our hands are lyable to this Statute It runs concesserunt se utrumque eorum if it were joynt the charge would survive and then it were against us It is common for Executors upon pleinment administer pleaded to give in Evidence payment of Bonds in which themselves were bound with the Testator and sometimes such persons are made Executors for their security The Opinion of the Court was against the Plaintiff whereupon he prayed leave to discontinue and had it Amie Andrews ASsumpsit The Plaintiff declares that whereas the Father of the Defendant was endebted to him in 20 l. for Malt sold and promised to pay it that the Defendant in consideration that the Plaintiff would bring two Witnesses before a Iustice of Peace who upon their Oaths should depose that the Defendants Father was so endebted to the Plaintiff and promised payment assumed and promised to pay the money then avers that he did bring two Witnesses c. who did swear c. The Defendant pleaded non Assumpsit which being found against him he moved by Sergeant Baldwin in Arrest of Iudgment that the consideration was not lawful because a Iustice of Peace not having power to administer an Oath in this case it is an extrajudicial Oath and consequently unlawful And Vaughan was of Opinion that every Oath not legally administred and taken is within the Statute against prophane swearing And he said it would be of dangerous consequence to countenance these extrajudicial Oaths for that it would tend to the overthrowing of Legal proofs Wyndham Atkins thought it was not a prophane Oath nor within the Statute of King James because it tended to the determining of a controversie And accordingly the Plaintiff had Iudgment Horton Wilson A Prohibition was prayed to stay a Suit in the Spiritual Court commenced by a Proctor for his Fees Vaughan Wyndham No Court can better judge of the Fees that have been due and usual there then themselves Most of their Fees are appointed by constitutions Provincial and they prove them by them A Proctor lately libell'd in the Spiritual Court for his Fees and amongst other things demanded a groat for every Instrument that had been read in the cause the Client pretended that he ought to have but 4 d. for all They gave Sentence for the Defendant the Plaintiff appealed and then a Prohibition was prayed in the Court of Kings Bench. The Opinion of the Court was that the Libell for his Fees was most proper for the Spiritual Court but that because the Plaintiff there demanded a customary Fee that it ought to be determin'd by Law whether such a Fee were customary or no and accordingly they granted a Prohibition in that case It is like the case of a modus for Tythes for whatever ariseth out of the custom of the Kingdom is properly determinable at Common Law But in this case they were of Opinion that the Spiritual Court ought not to be prohibited and therefore granted a Prohibition quoad some other particulars in the Libell which were of temporal cognisance but not as to the suit for Fees Wyndham said if there had been an actual Contract upon the Retainer the Plaintiff ought to have sued at Law Atkyns thought a Prohibition ought to go for the whole Fées he said had no relation to the Iurisdiction of the Spiritual Court nor to the cause in which the Proctor was retain'd No Suit ought to be suffered in the Spiritual Court when the Plaintiff has a remedy at Law as here he might in an Action upon the case for the Retainer is an implied Contract A difference about the grant of the Office of Register in a Bishops Court shall be
a distinction Our Saviour is called the Son of David though there were 28 Generations betwixt David and him And a republication may impose another sense upon words different from what they had when they were first written as if a man devise all his Lands in Dale and have but two Acres in Dale the words now extend to no more then those two Acres and if he purchase more and dye without any new publication the new purchased Lands will not pass But if there were a new publication after the purchase they would then pass well enough If a man has issue two Sons called Thomas and he makes a devise to his Son Thomas this may be ascertained by an averment Now suppose that Thomas the deviseé dye living the Father and afterward the Father publisheth his Will anew and says that he did intend that his Son Thomas now dead should have had his Land but now his Will and intent is that Thomas his younger Son now living shall take his Land by the same Will In this case to be sure the second Son Thomas shall take by the devise Here the import of the words is clearly altered by the republication Atkyns The words of this Will would not of themselves be sufficient to carry the Land to the Grand-child nor would the intention of the Devisor do it without them but both together do the business Quae non prosunt singula juncta juvant Wyndham Scroggs differed in Opinion and the cause was adjourned to be argued the next Term. North. A man admitted in forma pauperis is not to have a new Trial granted him for he has had the benefit of the Kings Iustice once and must acquiesce in it We do not suffer them to remove causes out of inferiour Courts They must satisfie themselves with the Iurisdiction within which their Action properly lieth Farrington Lee. ASsumpsit The Plaintiff declares upon 2 indebitatus Assumpsits and a third Assumpsit upon an insimul computasset The Defendant pleaded non Assumpsit infra sex annos the Plaintiff replied that himself is a Merchant and the Defendant his Factor and recites a clause in the Statute in which Actions of Account between Merchants and Merchants and Merchants and their Factors concerning their Trade and Merchandize are excepted and avers that this money became due to the Plaintiff upon an account betwixt him and the Defendant concerning Merchandise c. the Defendant makes an impertinent rejoynder to which the Plaintiff demurs Nudigate pro Querente This Statute is in the nature of a penal Law because it restrains the liberty which the Plaintiff has by the Common Law to bring his Action when he will and must therefore be construed beneficialy for the Plaintiff Pl. 54. Cr. Car. 294. Finche Lambe's case to this purpose Also this exception of Accounts between Merchants and their Factors must be liberally expounded for their benefit because the Law-makers in making such an exception had an eye to the incouragement of Trade and Commerce The words of the exception are other then such Accounts as concern the Trade of Merchandise c. now this Action of ours is not indeed an Action of Account but it is an Action grounded upon an Account And the Plaintiff being at liberty to bring either the one or the other upon the same cause of Action and one of the Actions being excepted expresly out of the limitation of the Statute the other by Equity is excepted also He cited Hill 17 Car. 1. in Marshe's Reports 151. Jones 401. Sandys Blodwell Mich. 13 Car. 1. and prayed Iudgment for the Plaintiff Serjeant Baldwin contra He said it did not appear in the Declaration that this Action was betwixt a Merchant and his Factor so that then the plea in bar is prima facie good And when he comes and sets it forth in his Replication he is too late in it and the replication is not pursuant to his Declaration But all the Court was against him in this Then he said the Statute excepted Actions of Account only and not Actions upon an indeb Assumpsit Cur ' Whereas it has been said by Serjeant Nudigate that the Plaintiff here has an Election to bring an Action of account or an Indebitat Assumpsit that is false for till the Account be stated betwixt them an Action of Account lies and not an Action upon the Case When the Account is once stated then an Action upon the case lies and not an Action of Account Et per North if upon an Indebitat Assumpsit matters are offered in evidence that lie in account I do not allow them to be given in evidence North Wyndham Scroggs the exception of the Statute goes only to Actions of Account and not to other Actions And we take a diversity betwixt an account current and an account stated After the account stated the certainty of the Debt appears and all the intricacy of account is out of doors and the Action must be brought within six years after the account stated But by North if after an account stated upon the ballance of it a sum appear due to either of the parties which sum is not paid but is afterward thrown into a new account between the same parties it is now slip't out of the Statute again Scroggs The Statute makes a difference betwixt Actions upon Account and Actions upon the case The words would else have been All Actions of Account and upon the Case other then such Actions as concern the Trade of Merchandise But it is otherwise penned other then such Accounts as concern c. and as this case is there is no account betwixt the parties the account is determined and the Plaintiff put to his Action upon an insimul computasset which is not within the benefit of the exception Atkyns I think the makers of this Statute had a greater regard to the persons of Merchants then the causes of Action between them And the reason was because they are often out of the Realm and cannot always prosecute their Actions in due time The Statute makes no difference betwixt an account current and an account stated I think also that no other sort of Tradesmen but Merchants are within the benefit of this exception and that it does not extend to Shop-kéepers they not being within the same mischief Adjurnatur Horn versus Chandler COvenant upon an Indenture of an Apprentice wherein the Defendant bound himself to serve the Plaintiff for seven years The Plaintiff sets forth the custom of London That any person above 14 and under 21 unmarried may bind himself Apprentice c. according to the custom and that the Master thereupon shall have tale remedium against him as if he were 21 and alledges that the Defendant did go away from his Service per quod he lost his Service for the said term which term is not yet expired The Defendant pleads a frivolous plea. To which the Plaintiff demurs Heley Though such a Covenant shall
it was said that the Act of Parliament only takes away a Writ of Error in such case but there is no day in Bank to plead It was order'd to stand in the paper Corporation of Darby THe Corporation of the Town of Darby prescribe to have Common sans number in grosse Sanders I conceive it may be by prescription what a man may grant may be prescribed for Co. Lit. 122. is express Keel In a Forest the King may grant Common for Sheep but you cannot prescribe for it And if you may prescribe for Common sans number in grosse then you may drive all the Cattel in a Fair to the Common Sanders But the prescription is for their own Cattel only Twisd If you prescribe for common sans number appurtenant to Land you can put in no more Cattel then what is proportionable to your Land for the Land stints you in that case to a reasonable number But if you prescribe for common sans number in grosse what is it that sets any bounds in such case There was a case in Glyn's time betwéen Masselden and Stoneby where Masselden prescribed for common sans number without saying levant couchant and that being after a Verdict was held good but if it had been upon a Demurrer it would have been otherwise Livesey said he was agent for him in the case Bucknall Swinnock INdebitat Assumpsit for money received to the Plaintiffs use the Defendant pleads specially that post assumptionem praedictam there was an agreement between the Plaintiff and Defendant that the Defendant should pay the money to J. S. and he did pay it accordingly The Plaintiff demurrs Jones This plea doth not only amount to the general issue but is repugnant in it self It was put off to be argued Hall versus Wombell THe question was whether an Action of Debt would lie upon a Iudgment given by the Commissioners of Excise upon an Information before them Adjornatur Vaughan Casewell A Writ of Error was brought to reverse a Iudgment given at the grand Sessions in Wales in a Writ of Quod ei deforciat Sanders The point in Law will be this whether a Tenants vouching a Vouchee out of the line be peremptory and final or that a Respondeas ouster shall be awarded Mr. Jones In an Assise the Tenant may vouch another named in the Writ 9 H. 5. 14. and so in the Com. fo 89. b. but a voucher cannot be of one not named in the Writ because it is festinum remedium In Wales they never allow foreign vouchers because they cannot bring them in If there be a Counterplea to a Voucher and that be adjudged in another Term it is always peremptory otherwise if it be determined the same Term. An Action of Trover and Conversion was brought against husband and wife and the wife arrested Twisd The wife must be discharged upon Common bail so it was done in the Lady Baltinglasse's case And where it is said in Crook that the Wife in such case shall be discharged it is to be understood that she shall be discharged upon Common bail So Livesey said the course was It was said to be the course of the Court That if an Attorney be sued time enough to give him two Rules to plead within the Term Iudgment may be given otherwise not Russell Collins AN Assumpsit was brought upon two several promises and entire damages were given Moved by Mr. Sympson in arrest of Iudgment that for one of the promises an Action will not lie It was a general indebitatus pro opere facto which was urged to be too general and uncertain But per Cur ' it is well enough as pro mercimoniis venditis pro servitio without mentioning the Goods or the Service in particular And the Plaintiff had Iudgment Dyer versus East AN Action upon the Case upon a promise for Wares that the wife took up for her wearing Apparel Polyxfen moved for a new Trial. Keel The husband must pay for the wives Apparel unless she does elope and he give notice not to trust her that is Scott Manby's case which was a hard Iudgment but we will not impeach it The Plaintiff had Iudgment Beckett Taylor DEbt upon a Bond to submit to an Award Exception was taken to the Award because the concurrence of a third person was awarded which makes it void They award that one of the parties shall discharge the other from his undertaking to pay a Debt to a third person and it was pretended that the third person being no party to the submission was not compellable to give a discharge But it was answered that he is compellable for in case the debt be paid him he is compellable in equity to give a Release to him that had undertaken to pay it Rolls 1 part 248. Giles Southwards case Mich. 1653. Judgment nisi Seventéen Serjeants being made the 4th of November a day or two after Serjeant Powis the Junior of them all coming to the Kings Bench bar the Lord Chief Iustice Keeling told him that he had something to say to him viz. That the Rings which he and the rest of the Serjeants had given weighed but 18 s. apiece whereas Fortescue in his book de laudibus legum Angliae says That the Rings given to the Chief Iustices and to the Chief Baron ought to weigh 20 s. apiece and that he spake this not expecting a recompence but that it might not be drawn into a president and that the young Gentlemen there might take notice of it Clerke versus Rowell Phillips A Trial at bar in Ejectment for Lands settled by Sir Pexall Brockhurst The Court said a Trial against others shall not be given in Evidence in this cause And Twisden said that an Entry to deliver a Declaration in Ejectment should not work to avoid a Fine but that it must be an express Entry Vpon which last matter the Plaintiff was non-suit Redmans Case IT was moved that one Redman an Attorney of the Court who was going into Ireland might put in special Bail Twisd A Clerk of the Court cannot put in bail You have filed a Bill against him and so waved his putting in bail Keel You may remember Woolly's case that we discharged him by reason of his priviledge and took Common bail Twisd You cannot declare against him in custodia But though we cannot take bail yet we may commit him and then deliver him out by mainpernancy Jones If he be in Court in propria persona you cannot procéed against his bail The Court agréed that the Attorney should not put in bail Grafton GRafton one of the Company of Drapers was brought by Habeas Corpus In the Return the cause of his Imprisonment was alledged to be for that being chosen of the Livery he refused to serve Per Cur ' they might have fined him and have brought an Action of Debt for the sum but they could nor imprison him Keel The Court of Aldermen may imprison a
_____ shall bring in Alice and John Coats when they shall come to their Ages of Twenty one years to give such a Release to the Executors of Francis Gibbs as they shall require then c. one of the Legatees comes of age and during the minority of the other the Bond is put in Suit and this whole matter is disclosed in the Pleading And the question was whether the Defendant was obliged to bring him in to give a Release that was of Age before the Action brought or might stay till both were of Age before he procured a Release from either The Court was of Opinion that it must be taken respectively and because it appears that the Legacies were several that several Releases ought to be given upon the reason of Iustice Wyndham's case 5th Report And Twisden said if there were no more in it then this sc when they shall come to their Ages of c. it were enough to have the Condition understood respectively for they cannot come to their Ages at one and the same time And Iudgment was given accordingly Twisden If an Executor plead several Iudgments you may reply to every one of them obtent per fraudem or you may plead separalia Judicia c. obtent per fraudem but in pleading separalia Judicia obtent per fraudem if one be found to be a true debt you are gone Keeling Twisden Notwithstanding the Stat. of 23 H. 6. which obliges the Sheriff to take Bail yet he can make no other Return of a Capias then either cepi corpus or non est inventus for at the Common Law he could return nothing else and the Statute though it compels him to take Bail does not alter the Return and so in a case betwéen Franklin Andrews it has been adjudged here Crofton OFfley moved for a Certiorari to the Iustices of Peace for Middlesex to remove an Indictment against one Crofton upon the late Statute made against Non-conformist Ministers coming within five miles of a Corporation the Indictment was traversed He urged that by the Statute no Indictment will lie for such Offence For where an Act of Parliament enacts that the Penalty shall be recovered by Bill Plaint or Information as the Statute upon which this Indictment is grounded does there an Indictment will not lie 2 Cro. 643. Twisd If the Statute appoint that the penalty shall be recovered by Bill Plaint c. and not otherwise there I confess an Indictment will not lie but without negative words I conceive it will though the Statute be Introductive of a new Law and create an Offence which was none at the Common Law For whenever a thing is prohibited by a Statute if it be a publick concern an Indictment lies upon it and the giving other remedies as by Bill Plaint c. in affirmative words shall not take away the general way of proceeding which the Law appoints for all Offences Keeling differed in Opinion and thought that where a Statute created a new Offence and appointed other remedies there could be no proceeding by way of Indictment Afterward Offley moved it again and cited 2 Cro. 643. 3 Cro. 544. Mag. Chart. 201. 228. Vpon the second motion Keeling came over to Twisden's Opinion But it was objected That upon an Indictment the Poor of the Parish would lose their part of the penalty to which Twisden said that he knew it to have been adjudged otherwise at Serjeants-Inn and that where a Statute appoints the Penalty to be divided into thrée parts one to the Informer another to the King and the third to the Poor that in such case where there is no Informer as upon an Indictment there the King shall have two parts and the Poor a third The King versus Baker AN Indictment in Hull for saying these words viz. That whenever a Burgess of Hull comes to put on his Gown Sathan enters into him Levings moved that these words would not bear an Indictment Keeling The words are a Scandal to Government Levings The Indictment concludes in malum exemplum inhabitantium whereas it should be quamplurimorum subditorum Domini Regis in tali casu delinquentium And for this adjudged naught Twisden If the Defendant in an Action of Debt for Rent plead nil debet he may give in Evidence a suspension of the Rent A Parson Libels in the Spiritual Court against several of his Parishioners for Tythe-Turfe They pray a Prohibition Keeling Turfe Gravel and Chalke are part of the Fréehold and not Tythable They granted one Prohibition to all the Libels but ordered the Plaintiffs to declare severally Maleverer versus Redshaw DEbt upon a Bond of 40 l. the Condition was for appearing at a certain day and concluded if the party appeared then the Condition to be void The Defendant pleaded the Statute of 23 H. 6. Coleman The Bond is void by the express words of the Statute being taken in other form then the Statute prescribes Keeling If the Condition of a Bond be That if the Obligor pay so much money then the Condition to be void in that case the Bond is absolute Twisden I have heard my Lord Hobart say upon this occasion that because the Statute would make sure work and not leave it to Exposition what Bonds should be taken therefore it was added that Bonds taken in any other form should be void For said he the Statute is like a Tyrant where he comes he makes all void but the Common Law is like a Nursing Father makes void only that part where the fault is and preserves the rest Keeling If the Condition had béen that the party should appear and had gone no further it would then have been well enough Twisd Then why may not that which follows be rejected as idle and surplusage Cur. Advisare vult Jones versus Tresilian AN Action of Trespass of Assault and Battery Defendant pleads de son assault demesne The Plaintiff replies That the Defendant would have forced his Horse from him whereby he did molliter insultum facere upon the Defendant in defence of his possession To this the Defendant demurred Morton Molliter insultum facere is a contradiction Suppose you had said that molliter you struck him down Twisden You cannot justifie the beating of a man in defence of your possession but you may say that you did molliter manus imponere c. Keeling You ought to have replyed that you did molliter manus imponere quae est eadem transgressio Cur. Quer ' nil capiat per billam unless better cause be shown this Term. Rich Morris IN an Action of Debt for not performing an Award The Plaintiff declares that inter alia Arbitratum fuit c. Twisd That is naught Crisp versus the Mayor of Berwick AN Action of Covenant is brought against the Mayor Burgesses and Corporation of Berwick upon an Indenture of Demise wherein the Plaintiffs declare that the Defendants did demise to them a House in Berwick with a Covenant
receive the bodies of James Earl of Salisbury Anthony Earl of Shaftsbury and Philip Lord Wharton Members of this House and keep them in safe custody within the said Tower during his Majesties pleasure and the pleasure of this House for their high Contempt committed against this House And this shall be a sufficient Warrant on that behalf To the Constable c. John Browne Cler ' Parl ' The Earl of Shaftsbury's Counsel prayed that the Retorn might be Filed and it was so And Friday following appointed for the debating of the sufficiency of the Retorn and in the mean time directions were given to his Counsel to attend the Iudges and the Attorny-General with their Exceptions to the Retorn and my Lord was remanded till that day And it was said that though the Retorn was Field the Court could remand or commit him to the Marshal at their Election And on Friday the Earl was brought into Court again and his Counsel argued the insufficiency of the Retorn Williams said That this cause was of great consequence in regard the King was touched in his Prerogative The Subject in his Liberty and this Court in its Iurisdiction The cause of his Commitment which is retorned is not sufficient for the general allegation of high Contempts is too uncertain for the Court cannot judge of the Contempt if it doth not appear in what act it is Secondly It is not shewed where the Contempt was committed and in favour of Liverty it shall be intended they were committed out of the House of Peers Thirdly The time is uncertain so that peradventure it was before the last Act of general Pardon 1 Roll 192 193. and 219. Russells case Fourthly It doth not appear whether this Commitment were on a Conviction or an Accusation only It cannot be denied but that the Retorn of such Commitment by any other Court would be too general and uncertain Moore 839. Astwick was bailed on a Retorn Quod commissus fuit per mandatum Ni. Bacon Mil. Domini Custodis magni Sigilli Angliae virtute cujusdam Contempt ' in Curia Cancellariae fact ' and in that book it appears that divers other persons were bailed on such general Retorns and the cases have been lately affirmed in Bushells case repeated by the Lord Chief Iustice Vaughan where it is expresly said that on such Commitment and Retorns being too general and uncertain the Court cannot believe in an implicite manner that in truth the Commitment was for causes particular and sufficient Vaughans Rep. 14. accord 2 Inst 52 53 55. and 1 Roll 218. And the Commitment of the Iurors was for acquitting Pen and Mead contra plenam manifestam Evidentiam and it was resolved to be too general for the Evidence ought to appear as certain to the Iudge of the Retorn as it appeared before the Iudge authorized to Commit Russells case 137. Now this Commitment being by the House of Peers will make no difference for in all cases where a matter comes in Iudgment before this Court let the question be of what nature it will the Court is obliged to declare the Law and that without distinction whether the question began in Parliament or no. In the case of Sir George Binion in C. B. there was a long debate whether an Original might be Filed against a Member of Parliament during the time of priviledge and it was urged that it being during the Sessions of Parliament the determination of the question did belong to the Parliament But it was resolved an Original might be Filed and Bridgman then being Chief Iustice said That the Court was obliged to declare the Law in all cases that come in Iudgment before them Hill 24 E. 4. Rot. 4. 7. 10. in Scacc ' in Debt by Rivers versus Cousin The Defendant pleads he was a Servant to a Member of Parliament and ideo capi seu arrest ' non debet and the Plaintiff prays Iudgment and quia videtur Baronibus quod tale habetur privilegium quod magnates c. et eorum familiares capi seu arrestari non debent Sed nullum habetur privilegium quod non debent implacitari Ideo respondeat oustr ' So in Treymiards case a question of priviledge was determined in this Court Dyer 60. In the 14 E. 3. in the case of Sir John and Sir Geoffrey Staunton which was cited in the case of the Earl of Clarendon and is entred in the Lords Iournal an Action of Waste depended between them in the Common-Pleas and the Court was divided and the Record was certified into the House of Parliament and they gave direction that the Iudgment should be entred for the Plaintiff Afterwards in a Writ of Error brought in this Court that Iudgment was reversed notwithstanding the Objection That it was given by Order of the House of Lords for the Court was obliged to proceed according to the Law in a matter which was before them in point of Iudgment The construction of all Acts of Parliament is given to the Courts at Westminster And accordingly they have adjudged of the Validity of Acts of Parliament They have searched the Rolls of Parliament Hob. 109. Lord Hudsons case They have determined whether the Iournals be a Record Hob. 110. When a point comes before them in Iudgment they are not foreclosed by any Act of the Lords If it appears that an Act of Parliament was made by the King and Lords without the Commons that is Felo de se and the Courts of Westminster do adjudge it void 4 H. 7. 18. Hob. 111. and accordingly they ought to do If this Retorn contains in it that which is fatal to it self it must stand or fall thereby It hath been a question often resolved in this Court when a Writ of Error in Parliament shall be a Supersedeas And this Court hath determined what shall be said to be a Session of Parliament 1 Roll 29. and if the Law were otherwise there would be a failour of Iustice If the Parliament were Dissolved there can be no question but the Prisoner should be discharged on a Habeas Corpas and yet then the Court must examine the cause of his Commitment and by consequence a matter Parliamentary And the Court may now have cognisance of the matter as clearly as when the Parliament is Dissolved The party would be without remedy for his Liberty if he could not find it here for it is not sufficient for him to procure the Lords to determine their pleasure for his Imprisonment for before his enlargement he must obtain the pleasure of the King to be determined and that ought to be in this Court and therefore the Prisoner ought first to resort hither Let us suppose for it doth not appear on the Retorn and the Court ought not to enquire of any matter out of it that a supposed contempt was a thing done out of the House it would be hard for this Court to remand him Suppose he were committed to a Forreign prison during the
persons who were all capable that there was no difference betwixt that case and this Ellis said that in Floyd Gregories case reported in Jones it was made a point and that Jones in his argument denied the case of Hunt Singleton he said that himself and Sir Rowland Wainscott reported it and that nothing was said of that point but that my Lord Coke followed the Report of Serjeant Bridgeman who was three or four years their puisne and that he mistook the case Milword Ingram THe Plaintiff declares in an Action of the case upon a quantum meruit for 40 shillings and upon an Indebitat Assumpsit for 40 shillings likewise The Defendant acknowledged the promises but further says that the Plaintiff and he accounted together for divers sums of money and that upon the foot of the Account the Defendant was found to be endebted to the Plaintiff in 3 shillings and that the Plaintiff in consideration that the Defendant promised to pay him those 3 shillings discharged him of all demands The Plaintiff demurred The Court gave Iudgment against the demurrer 1. They held that if two men being mutually endebted to each other do account together and the one is found in arrear so much and there be an express agréement to pay the sum found to be in arrear and each to stand discharged of all other demands that this is a good discharge in Law and the parties cannot resort to the original Contracts But North Ch. Just said if there were but one Debt betwixt them entring into an account for that would not determine the Contract 2. They held also that any promise might well be discharged by paroll but not after it is broken for then it is a Debt Jones Wait. SHrewsbury Cotton are Towns adjoining Sir Samuel Jones is Tenant in Tail of Lands in both Towns Shrewsbury Cotton are both within the Liberties of the Town of Shrewsbury Sir Samuel Jones suffers a Common Recovery of all his Lands in both Vills but the Praecipe was of two Messuages and Closes thereunto belonging these were in Shrewsbury and of c. mentioning those in Cotton lying and being in the Ville of Shrewsbury in the Liberties thereof And whether by this Recovery the Lands lying in Cotton which is a distinct Ville of it self not named in the Recovery pass or not was the question Serjeant Jones argued against the Recovery He cited Cr. Jac. 575. in Monk Butler's case Cr. Car. 269 270. 276. he said the Writ of Covenant upon which a Fine is levied is a personal Action but a Common Recovery is a real Action and the Land it self demanded in the Praecipe There is no President he said of such a Recovery He cited a case Hill 22 23 Car. 2. Rot. 223. Hutton 106. Marche's Reports one Johnson Baker's case which he said was the case in point and resolved for him But the Court were all of Opinion that the Lands in Cotton passed And gave Iudgment accordingly Ellis said if the Recovery were erroneous at least they ought to allo 〈…〉 t till it were reversed Lepping Kedgewin AN Action in the nature of a Conspiracy was brought by the Plaintiff against the Defendant in which the Declaration was insufficient The Defendant pleaded an ill plea but Iudgment was given against the Plaintiff upon the insufficiency of the Declaration Which ought to have been entred Quod Defendens eat inde sine die but by mistake or out of design it was entred Quia placitum praedictum in forma praedicta superius placitat ' materiaque in eodem contenta bonum sufficiens in lege existit c. ideo consideratum est per Cur ' quod Quer ' nil capiat per billam The Plaintiff brings a new Action and declares aright The Defendant pleads the Iudgment in the former Action and recites the Record verbatim as it was To which the Plaintiff demurred And Iudgment was given for the Plaintiff nisi causa c. North Chief Justice There is no question but that if a man mistakes his Declaration and the Defendant demurs the Plaintiff may set it right in a second Action But here it is objected that the Iudgment is given upon the Defendants plea. Suppose a Declaration be faulty and the Defendant take no advantage of it but pleads a plea in bar and the Plaintiff takes issue and the right of the matter is found for the Defendant I hold that in this case the Plaintiff shall never bring his Action about again for he is estopped by the Verdict Or suppose such a Plaintiff demur to the plea in bar there by his demurrer he confesseth the fact if well pleaded and this estops him as much as a Verdict would But if the plea were not good then there is no Estoppel And we must take notice of the Defendants plea for upon the matter as that falls out to be good or otherwise the second Action will be maintainable or not The other Iudges agreed with him in omnibus Atkinson Rawson THe Plaintiff declares against the Defendant as Executor The Defendant pleads that the Testator made his Will and that he the Defendant suscepto super se onere Testamenti praedict c. did pay divers sums of money due upon specialties and that there was a Debt owing by the Testator to the Defendants Wife and that he retained so much of the Testators Goods as to satisfie that Debt and that he had no other Assets The Plaintiff demurred because for ought appears the Defendant is an Executor de son tort and then he cannot retain for his own debt The Plaintiffs naming him in his Declaration Executor of the Testament of c. will not make for him for that he does of necessity he cannot declare against him any other way and of that Opinion was all the Court viz. that he ought to entitle himself to the Executorship that it may appear to the Court that he is such a person as may retain And accordingly Iudgment was given for the Plaintiff Term. Hill 27 28 Car. II. in Com. Banco Smith's Case A Man dies leaving Issue by two several Venters viz. by the first three Sons and by the second two Daughters One of the Sons dies intestate the elder of the two surviving Brothers takes out Administration and Sir Lionel Jenkins Iudge of the Prerogative Court would compell the Administrator to make distribution to the Sisters of the half-blood He prayed a Prohibition but it was denied upon advice by all the Iudges for that the Sisters of the half-blood being a kin to the Intestate and not in remotiori gradu then the Brother of the whole blood must be accounted in equal degree Anonymus AN Action was brought against four men viz. two Attornies and two Solicitors for being Attornies and Solicitors in a cause against the Plaintiff in an inferiour Court falso malitiose knowing that there was no cause of Action against him and
Defendant should be charged to the value of the whole personal Estate or only for as much as he converted Serjeant Barrell argued That he ought to be charged for the whole because 1. He is made Executor by the Will and he is thereby compleat Executor before Probate to all intents but bringing of Actions 2. He has possession of the Goods and is chargeable in respect of that 3. He caused some to be sold and paid a Debt which is a sufficient administration There is found to discharge him 1. His refusal before the Ordinary But that being after he had so far intermeddled avails nothing Hensloe's case 9 Co. 37. An Executor de son tort he confessed should not be charged for more then he converted and shall discharge himself by delivering over the rest to the rightful Executor But the case is different of a rightful Executor that has taken upon him the burden of the Will The second thing found to discharge him is the granting of Administration to another but that is void because here is a rightful Executor that has administred in which case the Ordinary has no power to grant Administration Hob. 46. Keble Osbaston's case The third thing found to discharge him is the delivery of the Goods over to the Administrator but that will not avail him for himself became responsible by his having possession and he cannot discharge himself by delivering the Goods over to a stranger that has nothing to do with them If it be objected that by this means two persons will be chargeable in respect of the same Goods I answer that payment by either discharges both Cr. Car. Whitmore Porter's case The Court was of Opinion that the committing of Administration in this case is a mere void act A great inconvenience would ensue if men were allowed to Administer as far as they would themselves and then to set up a beggarly Administrator they would pay themselves their own Debts and deliver the residue of the Estate to one that 's worth nothing and cheat the rest of the Creditors If an Administrator bring an Action it is a good plea to say that the Executor made by the Will has administred Accordingly Iudgment was given for the Plaintiff Major Stubbing versus Birde Harrison REsolved that a plea may be a good plea in abatement though it contain matter that goes in bar they relyed upon the case in 10 H. 7. fol. 11. which they said was a case in point and Salkell Skelton's case 2 Rolls Reports and Iudgment was given accordingly Term. Trin. 28 Car. II. in Communi Banco PEr North Chief Iustice if there are Accounts betwéen two Merchants and one of them becomes Bankrupt the course is not to make the other who perhaps upon stating the Accounts is found endebted to the Bankrupt to pay the whole that originally was entrusted to him and to put him for the recovery of what the Bankrupt owes him into the same condition with the rest of the Creditors but to make him pay that only which appears due to Bankrupt on the foot of the Account otherwise it will be for Accounts betwixt them after the time of the others becoming Bankrupt if any such were Wing Jackson TRespass Quare vi armis the Defendant insultum fecit upon the Plaintiff was brought in the County Court and Iudgment there given for the Plaintiff But it was reversed here upon a Writ of false Iudgment because the County Court not being a Court of Record cannot fine the Defendant as he ought to be if the cause go against him because of the vi armis in the Declaration but an Action of Trespass without those words will lie in the County Court well enough Anonymus A Vicar libell'd in the Spiritual Court for Tythes of of young Cattle and surmised that the Defendant was seised of Lands in Middlesex of which Parish he was Vicar and that the Defendant had Common in a great Waste called Sedgemore-Common as belonging to his Land in Middlesex and put his Cattle into the said Common The Defendant prayed a Prohibition for that the Land where the Cattle went was not within the Parish of Middlesex The same Plaintiff libelled against the same Defendant for Tythes of Willow-Faggots who suggests to have a Prohibition the payment of 2 d. a year to the Rector for all Tythes of Willow The same Plaintiff libelled also for Tythes of Sheep The Defendant to have a Prohibition suggests that he took them in to feed after the Corn was reaped pro melioratione agriculturae infra terras arabiles non aliter As for the first of these no Prohibition was granted because of that clause in 2 Edw. 6. whereby it is enacted that Tythes of Cattle feeding in a Waste or Common where the Parish is not certainly known shall be paid to the Parson c. of the Parish where the owner of the Cattle lives For the second they held that a modus to the Rector is a good discharge against the Vicar For the third they held that the Parson ought not to have Tythe of the Corn and Sheep too which make the ground more profitable and to yield more Per quod c. Ingram versus Tothill Ren. REplevin Trevill leased to Ingram for 99 years if Joan Ingram his wife Anthony John Ingram his Sons should so long live rendring an Heriot or 40 shillings to the Lessor and his Assigns at the election of the Lessor his heirs and Assigns after their several deaths successive as they are named in the Indenture Trevill deviseth the Reversion John dyes and then Joan dies and the question was whether or no a Heriot were due to the Devisee upon the death of Joan. The Court agreed that the Avowry was faulty because it does not appear thereby whether Anthony Ingram was alive or not at the time of the distress taken for if he were dead the Lease would be determined North. Though Anthony were alive the Devisee of Trevill could not distrain for the Heriot for that the reservation is to him and his Assigns and although the Election to have the Heriot or 40 shillings given to the Lessor his heirs or Assigns yet that will not help the fault in the reservation Ellis There is another fault in the pleading for it is pleaded that Trevill made his Will in writing but it is not said that he dyed so seized for if the Estate of the Devisor were turned to a right at the time of his death the Will could not operate upon it Also it is said that the Avowant made his Election and that the Plaintiff habuit notitiam of his Election but it is not said by whom notice was given for these causes Iudgment was given for the Plaintiff It was urged likewise against the Avowant that no Heriot could be due in this case because Joan did not die first but the course of succession is interrupted and that a Heriot not being due of
But the Law in many cases takes notice of Parishes in civil affairs and Custom having by degrees introduced it we may allow of it in a Recovery as well as in a Fine Scroggs accordant If an Infant levy a Fine when he becomes of full age he shall be bound by the Deed that leads the Vses of the Fine as well as by the Fine it self because the Law looks upon both as one assurance So the Court was of Opinion that the Lands did pass It was then suggested that Iudgment ought not to be given notwithstanding for that the Plaintiff was dead But they said they would not stay Iudgment for that as this case was For between the Lessor of the Plaintiff and the Defendant there was another cause depending and tryed at the same Assizes when this issue was tryed and by agreément between the parties the Verdict in that cause was not drawn up but agreed that it should ensue the determination of this Verdict and the title to go accordingly Now the submission to this Rule was an implicite agreement not to take advantage of such occurrences as the death of the Plaintiff in an Ejectione firmae whom we know to be no wise concerned in point of interest and many times but an imaginary person It was said also to have Iudgment that there lived in the County where the Lands in question are a man of the same name with him that was made Plaintiff This the Court said was sufficient and that were there any of that name in rerum natura they would intend that he was the Plaintiff Cur̄ We take notice judicially that the Lessor of the Plaintiff is the person interested and therefore we punish the Plaintiff if he release the Action or release the damages Accordingly Iudgment was given Anonymus DEbt upon an Obligation was brought against the Heir of the Obligor hanging which Action another Action was brought against the same Heir upon another Obligation of his Ancestor Iudgment is given for the Plaintiffs in both Actions but the Plaintiff in the second Action obtains Iudgment first And which should be first satisfied was the question Barrel He shall be first satisfied that brought the first Action North. It is very clear That he for whom the first Iudgment was given shall be first satisfied For the Land is not bound till Iudgment be given But if the Heir after the first Action brought had aliened the Land which he had by descent and the Plaintiff in the second Action commenced after such alienation had obtained Iudgment and afterward the Plaintiff in the first Action had Iudgment likewise in that case the Plaintiff in the first Action should be satisfied and he in the second Action not at all What if the Sheriff return in such a case that the Defendant has Lands by descent which indeed are of his own purchase North. If the Sheriffs return cannot be traversed at least the party shall be relieved in an Ejectione firmae Dominus Rex versus Thorneborough Studly THe King brought a Quare Impedit against the Bishop of _____ and Thorneborough and Studly and declares That Queen Elizabeth was seised in see of the Advowson of Redriff in the County of Surrey and presented J. S. that the Quéen died and the Advowson descended to King James who died seized c. and so brings down the Advowson by descent to the King that now is Thorneborough the Patron pleads a Plea in Bar upon which the King demurs Studly the Incumbent pleads confessing Queen Elizabeths seisin in feé in right of her Crown but says that she in the second year of her Reign granted the Advowson to one Bosbill who granted to Ludwell who granted to Danson who granted to Hurlestone who granted to Thorneborough who presented the Defendant Studly and traverseth absque hoc that Queen Elizabeth died seized The Defendants Council produced the Letters Patents of secundo Reginae to Bosbill and his Heirs The King's Council give in evidence a Presentation made by Queen Elizabeth by usurpation anno 34 Regni sui of one Rider by which Presentation the Advowson was vested again in the Crown The Presentation was read in Court wherein the Queen recited that the Church was void and that it appertained to her to present North Chief Justice Is not the Queen deceived in this Presentation for she recites that it belongs to her to present which is not true If the Queen had intended to make an usurpation and her Clerk had been instituted she had gained the Fee-simple but here she recites that she had right Maynard When the King recites a particular Title and has no such Title his Presentation is void but not when his recital is general as it is here And this difference was agreed to in the Kings Bench in the Case of one Erasmus Dryden The Defendants Council shewed a Iudgment in a Quare Impedit against the same Rider at the suit of one Wingate in Queen Elizabeths time whereupon the Plaintiff had a writ to the Bishop and Rider was ousted Wingate claimed under the Letters Patents of the Second of the Queen viz. by a Grant of one Adie to himself to which Adie one Ludwell granted it anno 33 Eliz. Baldwin It appears by the Record of this Iudgment that a writ to the Bishop was awarded but no final Iudgment is given which ought to be after the three points of the writ enquired North. What is it that you call the final Iudgment there are two Iudgments in a Quare Impedit one that the Plaintiff shall have a writ to the Bishop and that is the final Iudgment that goes to the right betwixt the parties And the Iudgment at the Common Law There in another Iudgment to be given for Damages since the Stat. of West 2. cap. 5. after the points of the writ are enquired of Which Iudgment is not to be given but at the instance of the party Pemberton This Wingate that recovered was a stranger and had no title to have a Quare Impedit Now I take this difference where the King has a good Title no recovery against his Clerk shall affect the King's Title he shall not be prejudiced by a Recovery to which he is no party If the King have a defeasible Title as in our case by Vsurpation there if the rightful Patron recover against the King's Incumbent the King's Title shall be bound though he be not a party for his Title having no other Foundation than a Presentation when that is once avoided the Kings Title falls together with it But though the Kings Title be only by Vsurpation yet a Recovery against his Clerk by a stranger that has nothing to do with it shall not predudice the King covin may be betwixt them and the King be tried Now Wingate had no Right for he claimed by Grant from one Adie to whom Ludwell granted ann 33 Eliz. But we can prove this Grant by Ludwell to have been void for in the 29th of the
naught for the cause of their justification is that what they did was in executing a Sequestration whereby they were authorized to take into their hands the profits of the Rectory for the reparation of the Chancel Now they ought to avert that they did not take into their hands more than was sufficient for the reparation thereof North. If the Law come to be taken as my Brothers are of Opinion it will make a great step to the giving Ordinaries power to encrease Vicarages For the Parishioners have a right to a Maintenance for one to preach to them Adjornatur Edwards Weeks ACtion upon the case The Plaintiff declares that the Defendant in consideration that the Plaintiff would deliver unto him such a Horse promised to deliver to the Plaintiff in lieu thereof another Horse or five pounds upon request and avers that the Plaintiff had delivered to the Defendant the said Horse and had requested him c. The Defendant pleads that the Plaintiff before the Action brought discharged him of that promise but says not how To which the Plaintiff demurred Strode If he had pleaded a discharge before the request made the plea had been good without shewing how he discharged him but after the request once made a verbal request is not sufficient Cr. Car. Langden Stokes 384. 22 Ed. 4. 40. b. Cur̄ acc ' Et judicium pro querente Nisi causa c. Barker Keate EJectione firmae of Land in Castle-acre in Com̄ Norff. The Defendant pleaded not guilty and the issue was found as to part and for the residue there was a special Verdict viz. That Edm Hudson was seized to him and the heirs males of his body the remainder to William Hudson his Brother and the heirs males of his body That Edm. Hudson by Indenture betwixt himself and Thom. Peeps demised to Thom. Peeps from the Feast of St. Michael then last past for six months rendring a Pepper-corn Rent and that afterwards by another Indenture between himself on the one part and Thom. Peeps Edw. Bromley on the other part reciting the said Lease he bargained and sold the Reversion to Tho. Peeps his heirs and assigns to the intent to make him Tenant to the Praecipe in order to the suffering of a Common Recovery in which Edm̄ Bromley was to be the Recoveror and himself the said Edw. Hudson the Vouchee and that this Recovery was to be to the use of Edm̄ Hudson and his heirs c. and the Iury made a special conclusion viz. That if the Court should adjudge that in this Recovery there were a good Tenant to the Praecipe then they found for the Plaintiff if otherwise for the Defendant Serjeant Waller argued that there was no good Tenant to the Praecipe for that Tho. Peeps never was in possession by vertue of the Lease for six months No Entry is found nor no consideration to raise an use All the consideration mentioned is the reservation of a Pepper-corn which is not sufficient for it is to be paid out of the profits of the Land He compared it to Colyer's case 6 Rep. where a sum in gross appointed to be paid by the Devisee gave him an Estate in Fee-simple but a sum to be paid out of the profits of the Land not He cited the Lord Pagett's case Moor. 343. Dyer 10. placito 31. Besides the consideration in our case is a thing of no value being but a single Pepper-corn If an Infant make a Lease for years rendring Rent the Lease is but voidable but if an Infant make a Lease for years rendring a Rose or a Pepper-corn or any such like trifle the Lease is void He cited Fitzherb tit Entry congeable 26. North. When a Tenant for life or years assigns his Estate there needs no consideration in such case the tenure and attendance and the being subject to the ancient forfeiture and the payment of Rent if there were any is sufficient to vest the use in the Assignee but otherwise in case of a Fee-simple When a man is seised in Fee and makes a Lease for years unless he give possession and that the Lessee enter he must raise an Vse But in our case the reservation seems not sufficient to raise an Vse for an Vse must be raised and the Land united to it before a Rent can result out of it Wyndham It being in the case of a common Recovery we must support it if it be possible In Sutton's Hospital's case 10 Rep. 34. a. it is said that the reservation of 12 d. Rent was a sufficient consideration to vest an Vse in the Hospital and a Rent of 12 d. is as inconsiderable a matter in consideration of a great Estate as a Pepper-corn in our case The case in Dyer that has been cited is made a Quaere in the book I think the reservation of a Rent would have changed an Vse at the Common Law and will raise an Vse at this day If a Feoffee to an Vse had made a Feoffment in Fee rendring Rent the feoffment I conceive would have been to the use of the second feoffée and the first Vse destroyed The other two Iustices delivered no Opinion At another day the cause being moved again North said he had looked upon the President quoted out of Sutton's Hospitals case and that there the reservation of a Rent was mentioned in the Deed as a consideration to raise an Vse which he said would perchance make a difference betwixt that case and this But the Court would advise further Bassett Bassett AN Action of Debt upon an Obligation of 600 l. penalty the Condition was That if the above-bounden John Bassett his Heirs or Assigns shall within six months after the death of Mary Bassett his Mother settle upon and assure unto Hopton Bassett as the Council of the said Hopton Bassett learned in the Law shall advise at the Costs and charges of the said Hopton Bassett an Annuity or Rent-charge of twenty pounds per annum payable half-yearly by equal portions from the death of the said Mary during Hopton Bassett's life if he the said Hopton Bassett require the same at the dwelling house of the said John Bassett or if he shall not grant the same if then the said John Bassett shall pay unto Hopton Bassett within the time aforementioned 300 l. then the Obligation to be void The Defendant pleaded that the Plaintiff to wit the said Hopton Bassett had not tendred any Grant of an Annuity within the time of six months after the death of his Mother according to c. the Plaintiff replyed and the Defendant rejoyned But the Council of both sides and the Court agreed that the whole question arose upon the plea in bar Strode for the Defendant The Plaintiff ought to have tendred us a grant of Annuity to be sealed within six months c. and having neglected that he has dispensed with the whole Condition For 1. This is not a dis-junctive Condition but the payment of
lay in the River whether it lies or not 85 Action upon the Case upon a Promise on consideration to bring two men to make Oath before two men not authoriz'd by Law to administer an Oath 166 Action against the Coronors of a County Palatine for a false Return the Action laid in Middlesex 198 199 V. Attorney Action upon the Case lies not for suing an Attorney in an inferior Court 209 Action upon the Case for that the Defendant had taken away his Goods and hidden them in such secret places that the Plaintiff could not come at them to take them in Execution adjudged that it does not lie 286 Administrators An Administrator recovers Damages in an Action of Trover and Conversion for Goods of the Intestate taken out of his own possession then his Administration is revoked whether can he now have Execution 62 63 Administrators plead fully administred to an Action of Debt for Rent incurr'd in their own time Which was held to be an ill plea. 185 186 The Action lies against them in the debet detinet for Rent incur'd in their own time ibid. They cannot waive a term for years ibid. Debt upon an Obligation against an Administrator The Defendant pleads a Statute acknowledged by the Intestate to the Plaintiff which Statute is yet in force the Plaintiff replies That it is burnt The Defendant demurs 186 187 A Stranger takes out Administration to a Feme Covert and puts a Bond in Suit the Defendant pleads That the Husband is de jure Administrator to the Wife and is yet alive 231 V. Distribution Annuity An Action lies for an Annuity against the Rector of a Church though the Church be drown'd 200 201 Appearance In an Action brought by Executors some of whom are under age all the Plaintiffs appear by Attorney whether well or no 47 72 276 277 c. Apprentices Vide p. 2. Enditement for exercising a Trade in a Village not having served seven years as an Apprentice 26 An Action of Covenant lies against an Infant Apprentice upon his Indenture of Apprenticeship c. by the custom of London 271 Concerning the Power of the Justices in discharging Masters of their Apprentices Vide 286 287 Whether may a Difference between a Master and an Apprentice be brought originally before the Sessions or not V. 287 Arbitrement and Arbitrators An Award that one of the Parties shall discharge the other from his undertaking to pay a Debt to a third person a good Award 9 The Power of the Arbitrators and of the Umpire cannot concur 15 274 275 The staying of a Cause is implied in referring it to Arbitrators 24 Inter alia arbitratum fuit naught 36 Arrest Attachment for arresting a man upon a Sunday or as he is going to Church 56 Assault and Battery What makes an Assault 3 Justification in an Action of Assault and Battery 168 169 For striking a Horse whereon the Plaintiff rode whereby that Horse ran away with him so that he was thrown down and another Horse ran over him 24 Pleading in an Action of Assault and Battery 36 Assets Assets in equity V. 115. Attachment Against a man for not performing an Award submitted to by Rule of Court 21 V. Arrest Attorney Whether are Attorneys within the Statute against Extortion or not 5 6 If an Attorney be sued time enough to give him two Rules to plead within the Term Judgment may be given 8 Not compellable to put in special Bail 10 Whether can an Attorney of the Kings Bench be debar'd from appearing for his Client in the Court at Stepney 23 24 Ill practices of Attorneys 41 An Attorney ought not to waive his Court 118 An Action lies not against an Attorney for suing in a Cause as Attorney knowing that the Plaintiff has no Cause of Action 209 Audita Querela Can be brought before Judgment enter'd 111 V. 170 Outlawry pleaded in disability 224 Avowry Whether needs he that distrains Cattel for a Rent-Charge set forth in his Avowry that they were Levant and Couchant 63 Exceptions to an Avowry for a Heriot 216 217 The Husband alone may avow for a Rent due to him in right of his Wife 273 B. Bail THree men bring an Action and the Defendant puts in bail at the Suit of four 5 V. Baron and Feme The course of the Court in taking bail 16 The reason of the Law in requiring bail 236 Special bail denied in Battery 2 V. Attorney V. p. 25. Bankrupt A Plaintiff has Judgment and before Execution becomes Bankrupt moved that the money may be brought into Court 93 Accounts between two Merchants and one of them becomes Bankrupt how far shall the other be a Debtor or Creditor 215 Baron and Feme Baron and Feme are sued in Trover and Conversion and the Wife arrested she shall be discharg'd upon common Bail 8 The Husband must pay for the Wives Apparrel unless she elope and he give not order to trust her 9 Whether or no and in what cases the Husband is bound by the Contract of the Wife and in what cases not 124 c. Husband and Wife recover in Action of Debt and have Judgment the Wife dies the Hushand shall have Execution 179 180 V. Tit. Avowry Bar. Judgment in a former Action pleaded in Bar of a second 207 Bastard-Children Orders of Sessions made upon the 18th of Eliz. for the keeping of them by the reputed Fathers 20 Bill of Exchange Needs not be protested on the very day that it becomes due 27 V. Tit. Indebitat assumpsit Borough-English Copyhold Land of the tenure of Borough-English surrendred to the use of another person and his heirs who dies before admittance the Right shall descend to the youngest Son 102 C. Cap. Excommunicatum MIsnosmer cannot be pleaded to a Cap. Excomm for the party has no day in Court 70 Certiorari To remove an Enditement of Robbery whether it removes the Recognizances to appear 41 To remove an Enditement of Murder out of Wales 64 68 Cinque-Ports Hab. Corp. to remove one out of the Cinque-Ports 20 Citation Citation ex officio not according to Law 185 Common Whether may a Corporation prescribe for a common sans number in gross 6 7 Condition That if the Obligor bring in Alice and John Coats when they come to their ages of 21 years c. to give Releases c. these words must be taken respectively 33 The Condition of a Bond for the parties appearance at a certain day and concludes If the party appear then the Condition to be void 35 36 Condition precedent or not 64 An Estate is given by Will upon Condition that if the Devisee marry without the consent of c. then a stranger to enter c. whether is this a Condition or a Limitation 86 c. 300 c. Condition of a Bond is to seal and execute a Release is the Obligor bound to do it without a tender 104 A Bond is dated in March the Condition is to pay money super 28 diem
Martij prox sequentem the money is payable the same month 112 V. Tit. Survivor The Condition of a Bond runs thus viz. That if the Obligee shall within six months after his Mothers death settle upon the Obligor an Annuity of 20 l. per annum during life if he require the same or if he shall not grant the same if then he shall pay to the Obligor 300 l. within the time aforementioned then the Obligation to be void is this a disjunctive Condition or not 264 265 c. Words allowed to be part of the Condition of a Bond though following these words then the Obligation to be void 274 275 Consideration V. Action upon the Case V. Etiam 284 Constable Moved to quash an Order made by the Justices of Peace for one to serve as Constable 13 Contingent remainder Supported by a Right of Entry 92 Conventicles To meet in a Conventicle whether a breach of the Peace or no 13 Conusance V. Tit. Vniversity Copy Copy of a Deed given in Evidence because the Original was burnt 4 Copies allow'd in evidence 266 Copyhold Tenant for life of a Copyhold He in the remainder entreth upon the Tenant for life and makes a Surrender nothing passeth 199 Tenant for life of a Copyhold suffers a Recovery as Tenant in Fee-simple this is no forfeiture 199 200 Of all Forfeitures committed by Copyholders the Lord only is to take advantage 200 Coroner V. Enquest Corporation What things can a Corporation do without Deed and what not 18 Costs An Executor is not within the Statute to pay Costs occasione dilationis executionis c. 77 Cottage An Enditement for erecting a Cottage contra formam Statuti quasht because it is not said That it was inhabited 295 Covenant Action of Covenant upon the Warranty in a Fine the Plaintiff assigns his Breach that a stranger habens legale jus titulum did enter c. but does not not say that it was by vertue of an Eigne Title 66 67 101 292 293 Covenant to make such an Assurance as Council shall advise 67 Covenant for quiet Enjoyment 101 A man does assignare transponere all the money that shall be allowed by any Order of a Foreign State does an Action of Covenant lie upon these words or not 113 An Action of Covenant lies against a Woman upon a Covenant in a Fine levied by her when she was a Feme Covert 230 231 V. Ibidem exceptions to the pleading in such Action Covenant to stand seized A man Covenants to stand seiz'd to the use of the Heirs of his own body 98 121 159 V. Limitation d' Estates V. Vses County-Courts V. 171 172 215 249. County-Palatine V. 2. Counterplea of Voucher V. 8. Court of Kings Bench. It s Jurisdiction is not ousted without particular words in an Act of Parliament 45 V. Habeas Corpus Cure of Souls What Ecclesiastical Persons have Cure of Souls and what not 11 12 Cur ' advisare vult During a Cur ' adv vult one of the parties dies how must Judgment be entred 37 Custom Custom of a Mannor for the Homage to chuse every year two Surveyors to destroy corrupt Victuals exposed to sale a good Custom 202 A Custom to be discharged of Tythes of Sheep all the year after in consideration of the payment of full Tythes of all the Sheep they have on candlemas-Candlemas-day 229 D. Damages EXcessive Damages no good Cause for a new Writ of Enquiry 2 Demand Requisite or not requisite 89 Departure in Pleading V. 43 44 227 289. Depositions V. Tit. Evidence Debt For Rent upon a Lease for years 3 Debt upon a Bond against two Executors they pleaded a Statute acknowledged by the Testator of 1200 li. and no assets ultra c. the Plaintiff replies That one of the Executors was bound together with the Plaintiff in that Statute 165 Devise Of a term for years V. Limitation of Estates By a Devise of all a man's Estate what passeth 100 I give Rees-Farm to my Wife during her natural life and by her to be disposed of to such of my Children as she shall think fit What Estate passeth hereby 189 A man has a Son called Robert Robert has likewise a Son call'd Robert The Grand-Father deviseth Land to his Son call'd Robert and his heirs Robert the Devisee dies living the Father The Devisor makes a new publication of the same Will and declares it to be his intention that Robert the Grand-Child should take the Land per eandem voluntat Does the Grand-Child take or no 267 268 A man deviseth a Rent-Charge to his Wife for her life but that if she marry that then his Executor shall pay her 100 l. and the rent shall cease and return to the Executor she does marry and the Executor does not pay the 100 l. The question is Whether the Rent shall cease before the 100 l. be paid or not 272 273 Distribution Administrators must make Distribution to those of the half-blood as well as to those of the whole 209 Donative V. 11 12 22 90. Double Plea V. 18 227. E. Ecclesiastical persons A Chapter of which there is no Dean is restrain'd by the Statute of 13 Eliz. 204 A Grant of next avoidance restrain'd ibid. Such Grant void ab initio ibid. Ejectione firmae De quatuor molendinis good Of so many Acres jampnor ' bruere without saying how many of each good 90 The Plaintiff in Ejectment dies before Judgment 252 Entry to deliver a Declaration in Ejectione firmae shall not work to avoid a Fine 10 Error A Writ of Error will lie in the Exchequer-Chamber upon a Judgment in a Scire facias grounded upon a Judgment in one of the Actions mentioned in 27 Eliz. 79 It shall not be assign'd for Error of Judgment in an inferior Court that the matter arose out the Jurisdiction but it must be pleaded 81 Escape V. 116. A Trial at Bar upon an Escape In an Action for an Escape the Defendant pleads That he let the Prisoner to bail according to the Stat. of 23 H. 6. cap. 10. and that he had taken reasonable Sureties of persons having sufficicient c. The Plaintiff replies and traverseth the sufficiency of the Sureties 227 Estoppel By the condition of a Bond. 113 Exchange of Lands Two women seized one of one Acre and another of another and they make an exchange then one of them marries before entry shall that defeat the exchange 91 Excise The Statute for Excise prohibits the bringing of a Certiorari but not Habeas Corpus 103 Executors V. Costs V. Appearance In what order Executors are to pay Debts c. 174 175 Executor dur ' minor ' aetate 174 175 An Executor must entitle himself to the Executorship to enable him to retain for his own debt 208 An Executors refusal before the Ordinary after Administration is a void act 213 Action of Debt against an Executor the Defendant pleads That the Testator made a Will but did not make him Executor therein that he
also for that they sued the Plaintiff in another Court knowing that he was an Attorney of the Common-Pleas and priviledged there Per tot ' Cur ' there is no cause of Action For put the case as strong as you will suppose a man be retained as an Attorney to sue for a debt which he knows to be released and that himself were a witness to the Release yet the Court held that the Action would not lye for that what he does is only as Servant to another and in the way of his Calling and Profession And for suing an Attorney in an inferiour Court that they said was no cause of Action for who knows whether he will insist upon his priviledge or not and if he does he may plead it and have it allowed Fits al. versus Freestone IN an Action grounded upon a promise in Law payment before the Action brought is allowed to be given in Evidence upon non Assumpsit But where the Action is grounded upon a special promise there payment or any other legal discharge must be pleaded Bringloe versus Morrice IN Trespass for immoderately riding the Plaintiffs Mare the Defendant pleaded that the Plaintiff lent to him the said Mare licentiam dedit eidem aequitare upon the said Mare and that by virtue of this Licence the Defendant and his Servant alternatim had rid upon the Mare The Plaintiff demurs Serj. Skipwith pro Quer ' The Licence is personal and incommunicable as 12 H. 7. 25. 13 H. 7. 13. the Dutchess of Norfolk's case 18 Ed. 4. 14. Serj. Nudigate contra This Licence is given by the party and not created by Law wherefore no Trespass lyeth 8 Rep. 146 147. per Cur ' the Licence is annexed to the person and cannot be communicated to another for this riding is matter of pleasure North took a difference where a certain time is limited for the Loan of the Horse and where not In the first case the party to whom the Horse is lent hath an interest in the Horse during that time and in that case his Servant may ride but in the other case not A difference was taken betwixt hiring a Horse to go to York and borrowing a Horse in the first place the party may set his Servant up in the second not Term. Pasch 28 Car. II. in Communi Banco Anonymus A Man upon marriage Covenants with his Wives relations to let her make a Will of such and such Goods she made a Will accordingly by her husbands consent and dyed After her death her Will being brought to the Prerogative Court to be proved a Prohibition was prayed by the Husband upon this suggestion that the Testatrix was foemina viro cooperta and so disabled by the Law to make a Will Cur ' Let a Prohibition go Nisi causa c. North. When a question ariseth concerning the Iurisdiction of the Spiritual Court as whether they ought to have the Probate of such a Will whether such a disposition of a personal Estate be a Will or not whether such a Will ought to be proved before a peculiar or before the Ordinary whether by the Archbishop of one Province or another or both and what shall be bona notabilia in these and the like cases the Common Law retains the Iurisdiction of determining there is no question but that here is a good surmise for a Prohibition to wit that the woman was a person disabled by the Law to make a Will the Husband may by Covenant depart with his right and suffer his Wife to make a Will but whether he hath done so here or not shall be determined by the Law we will not leave it to their decision it is too great an invasion upon the right of the Husband In this case the Spiritual Court has no Iurisdiction at all they have the Probate of Wills but a Feme-covert cannot make a Will If she disposeth of any thing by her Husbands consent the property of what she so disposeth passeth from him to her Legatee and it is the gift of the husband If the Goods were given into anothers hands in trust for the wife still her Will is but a Declaration of the trust and not a Will properly so called But of things in Action and things that a Feme-Covert hath as Executrix she may make a Will by her Husbands consent and such a Will being properly a Will in Law ought to be proved in the Spiritual Court. In the case in question a Prohibition was granted against the Hambrough Company THe Plaintiff brought an Action of Debt in London against the Hambrough-Company who not appearing upon Summons and a Nihil being returned against them an Attachment was granted to attach Debts owing to the Company in the hands of 14 several persons by Certiorari the cause was removed into this Court and whether a Procedendo should be granted or not was the question Serjeant Goodfellow Baldwin and Barrell argued that a debt owing to a Corporation is not attachable Serjeant Maynard Scroggs contra Cur ' We are not Iudges of the Customs of London nor do we take upon us to determine whether a debt owing to a Corporation be within the Custom of forrein Attachment or not This we judge and agree in that it is not unreasonable that a Corporation's debts should be attached If we had judged the Custom unreasonable we could and would have retained the cause For we can over-rule a Custom though it be one of the Customs of London that are confirmed by Act of Parliament if it be against natural reason But because in this Custom we find no such thing we will return the cause Let them proceed according to the Custom at their peril If there be no such Custom they that are aggrieved may take their remedy at Law We do not dread the consequences of it It does but tend to the advancement of Iustice and accordingly a Procedendo was granted per North Chief Justice Wyndham Ellis Atkyns aberat Anonymus PEr Cur ' if a man is indicted upon the Statute of Recusancy Conformity is a good plea but not if an Action of Debt be brought Parten Baseden's Case PArten brought an Action of Debt in this Court against the Testator of Baseden the now Defendant aâ—d had Iudgment After whose death there was a devastavit returned against the Defendant Baseden his Executor he appeared to it and pleaded and a special Verdict was found to this effect viz. that the Defendant Baseden was made Executor by the Will and dwelt in the same house in which the Testator lived and died and that before Probate of the Will he possest himself of the Goods of the Testator prized them inventoried them and sold part of them and paid a Debt and converted the value of the residue to his own use that afterwards before the Ordinary he refused and that upon his refusal administration was committed to the Widow of the deceased And the question was whether or no the