one hath to his Liberty Whoever excites the People to the disobedience of a Law commits the Highest Offence under High Treason I do not mean every Law as if one which should cause a Trespass to be done should be so guity but Laws which are of a publick Nature As to the Retorn I think it is the most insufficient I ever yet saw The certainty of the sum ought to have been expressed in which he and his Sureties should have been bound for otherwise the sum required might be so great that any Person might be constrained to remain in Prison There may may be lawful inciting to the breach of the Law as a Counsel or Attorney advising an Action which is not maintainable and sometimes it may be upon some particular design as in Dier 168. Bronker being made Sheriff one Hyde dissuaded him from taking the Sheriffs Oath because of the difficulty of the Articles B. was condemned in 100 l fine and 5 weeks imprisonment for refusing of the Oath and H. in 20 l and 5 weeks imprisonment for inciting him to it and the reason was because Hyde knew it to be an Offence and that makes it differ from the case of a Counsel or Attorney but the Offence was the less because the incitement was upon a particular reason and not against the Law quatenus a Law In the Retorn here they don't say that they found he was guilty but only that they found cause to suspect him Now what Remedy can be had in such a Case can an Issue be taken whether they had cause to suspect him or no Put the case one who had been fined 10 l for an Offence against this Act in which case the Statute allows of an Appeal had come to Mr. Rudyard to know what he should do and he had advised him to bring an Appeal at the Quarter Sessions this is no Offence and yet 't is an abetting to such as meet and perhaps might be a cause of suspition to a Iustice of Peace I do not see that the Retorn is good in any part of it and therefore he ought to be discharged but I think the Iustices should do well if they know him to be guilty to commit him by a better Warrant whereupon the Prisoner was discharged For it is the usage of this Court when the Iudges are of three Opinions as here my Lord Chief Justice and Tyrrell for discharging him Archer for putting him to Bail and Wyld for remanding him to give the Rule according to the Opinion of the Two which agree The Court said they had often directed that no Habeas Corpus should be moved for in this Court except it concerned a Civil Cause because when the Party was brought in and the Cause shewn this Court cannot proceed upon it therefore the proper place to move for them is the Kings Bench but they permitted it in this Case because the Party was an Attorney of the Court. The Court demanded of Rudyard upon his first bringing in whether he would submit to what they should propose and direct he said he would submit to the Rule of the Court but the Court told him that he must do but demanded whether he would yield to what they should do by way of Arbitration but he tho' advised otherwise by his own Counsel discovered his unwillingness to submit to any thing but the Rule of Law Termino Sancti Michaelis Anno 23 Car. II. In Communi Banco Methuselah Turner versus Sir Samuel Sterling Pas ' 23 Rot ' 363. IN an Action upon the Case brought by the Plaintiff against the Defendant the Plaintiff declares That London is an Ancient City and that there is an Ancient Bridge and that there use to be two Officers for it to look after it called Bridgmasters and that they have certain Fees and Profits belonging to them And that there is a Custom for the Citizens assembled in a Common Hall or Court yearly to choose or continue those Bridgemasters And another Custom that if one of these die within the Year that the Mayor shall assemble a Common Hall and they being Congregated shall proceed to the election of another Bridgemaster in his stead for the residue of the year And another Custom that upon their proceeding to Election if there be two Persons upon Election he that is chosen by the major number of Votes is duly Elected and that if one in such case require that the Polls should be numbred that the Mayor ought to allow the Poll and that the Assembly ought to be dismissed till that were done And another Custom that the Party so chosen ought to be sworn and used to receive the Profits to his own Use That 24 June 22 nunc Regis there was a Common Hall assembled the Defendant being then Mayor and that A. and B. were then and there chosen to this Office c. and being so A. died in October following and on the 18th of the same October there was another Common Hall for the Election of a Bridgemaster in his stead congregated by the Defendant and then and there the Plaintiff and one Allen stood as Competitors to be chosen for that Office and the Question grew which had the greatest number of Electors and the Plaintiff avers that he had the greatest Number and the other denied it and he requested that according to the Custom they might go to the Poll and the Defendant not minding the execution of his Office but violating the Law and Custom of the City did then and there malitiously refuse the numbring the of Polls and made Proclamation That the Congregation of Electors should depart and discharged the Court and the other man was sworn and so he lost the Profits of the Place c. Vpon Not Guilty pleaded and a Verdict for the Plaintiff after it had been several times spoken to in Arrest of Iudgment the Court delivered their Opinions seriatim Wyld I think the Action well lies for otherwise it will be in the power of every Head Officer to get whom he will have chosen or refused It is objected That non constat whether the Plaintiff should have been chosen Answer The Law gives an Action for but a possibility of Damage as an Action lies for calling an Heir Apparent Bastard It was objected also That at the Common Law there was no Action for a Parliament man against a Sheriff for not returning of him being Elected I Answer That is a place of Burthen this of Profit if I have an Horse or Beast-Market and a Toll for Sale and one hinder the Beasts from coming hither non constat whether they should be sold Yet for the possibility of that and of the loss of the Toll thereon an Action lies 41 E. 3. 24. Pl. 17. b. An Action of the Case was brought against a Sheriff for making of a Precept to one to make a Retorn in the Plaintiffs Case who indeed was not a Bailiff of a Franchise and thereupon the Retorn was quashed Br '
given pro Quer. Termino Paschae Anno 34 Car. II. In Banco Regis Clayton versus Gillam IN Trespass for breaking and entering of his Close and Feeding c. and laying thereon certain pieces of Timber c. Et continuando Transgressionem praed ' After Verdict for the Plaintiff it was moved in Arrest of Judgment that one of the Trespasses viz. The laying of Timber could not be with a Continuando But it was resolved by the Court that continuando transgressionem praed ' shall be referred only to the Trespasses which may properly be said with a continuando But if the continuando had been expresly laid for that Trespass all would have been naught as it was resolved in a Case in this Court between Letchford and Elliot 16 Car. 2. The Earl of Shaftsbury versus Cradock IN an Action of Scandalum Magnatum for saying That the Earl was a Traytor c. The Action being laid in London where the words were supposed to be spoken It was moved in behalf of the Defendant that the Venue might be changed into some other Country and Affidavits were read that the Plaintiff had a great interest in the City and an intimacy with the present Sheriffs so that the Defendant could not expect an indifferent Tryal there and thereupon the Court did think fit to take the Cause out of London and gave the Earl the Election of any other County but he refused to Trie it elsewhere and would rather let the Action fall Curtis versus Inman IN Debt for the Penalty forfeited by the Statute of 5 Eliz. for using the Trade of a Grocer having not been Bound an Apprentice It was moved that the Action lies not in this Court because 21 Jac. cap. 4. Enacts That Actions popular shall be brought before Justices of Assize of the Peace c. But a Case was cited which was adjudged in this Court Hill 20 21 Car. 2. between Barns and Hughes which see before that such Action would lie But the Court notwithstanding in this Case said they would hear Arguments The Earl of Shaftsbury versus Graham al. IN an Action upon the Case in the nature of a Conspiracy the Declaration was That the Defendants did conspire to indict the Plaintiff of High Treason and for that purpose did Sollicit one Wilkinson and endeavoured to Suborn him to give false Testimony against the said Earl and an Indictment was offered at the Sessions at the Old Baily in London by the Defendant in pursuance of the said Conspiracy which Indictment the Grand Jury there found Ignoramus c. It was moved in behalf of the Defendants that whereas the Conspiracy was in the Declaration alledged to be in London that the Court would change the Venue and an Affidavit of the Defendants was produced That the Conspiracy alledged in the Declaration if there were any such was in Surry and not in London Note Wilkinson at the time of the supposed Conspiracy was a Prisoner in the Kings Bench and Affidavits were produced likewise to shew that the Plaintiff had such Interest with the present Sheriffs of London that an indifferent Jury was not like to be returned and that several Persons named to be material Witnesses for the Defendant durst not come to the Tryal if it were in London for fear of their Lives in regard they had been so affronted and abused when they were produced to prove the before mentied Indictment at the Old Baily and several other matters were alledged But it was insisted upon by the Counsel for the Earl That First The Venue uses not to be changed in Case of a Peer who is one of the Comites Regis and shall not be forced to Travel into another County to trie his Case as a Common Person Secondly That the present Case was local viz The preferring the Indictment at the Old Baily and where the Cause of Action ariseth in two Counties the Plaintiff hath his Election to bring it in either 7 Co. Bulwers Case But the Court declared that they were satisfied that no indifferent Tryal could be had in London they remembered they were affronted themselves when they were at the Old Baily upon the before mentioned Indictment And they resolved that they had a power to alter the Venue in the case of a Peer as it had been done about six years since in a Scandalum Magnatum brought by the Earl of Salisbury in this Court. And also they said that the Cause of Action here was Transitory viz. The conspiring and that the preferring of the Indictment was but in aggravation of Damages and the Action would lie altho' none had been offered or if preferred by other Persons than the Conspirators 'T is true when the matter ariseth in several plates the Plaintiff has Election but if there be like to be no indifferent Tryal in the place where it is laid 't is usual with this Court to change the Venue But the Court said they would not confine the Plaintiff to Surry if he could shew them cause that that was not an indifferent County Vid. 42 Ed. 3. 14. Termino Sancti Michaelis Anno 34 Car. II. In Banco Regis Denison versus Ralphson IN an Action upon the Case the Plaintiff declared That the Defendant in consideration of a Sum of Money paid by the Plaintiff did promise to deliver to him ten Pots of good and Merchandizable Pot Ashes and that not regarding his Promise and to defraud him he delivered him ten Pots of Ashes not Merchandizable but mixed with Dirt c. And declared also that pro quadam pecuniae summa c. the Defendant vendidit to the Plaintiff ten other Pots of Ashes Warrantizando c. that they were good and Merchandizable and that he delivered them bad and not Merchandizable knowing them to be naught and to this Declaration the Defendant Demurred And it was argued by Sanders That here were Causes of Action of several Natures put into one Declaration and they required several Pleas viz. Non Assumpsit and Not guilty and therefore ought not to be joyned Thompson for the Plaintiff cited a Case between Matthews and Hoskin An Action against a Common Carrier and declared upon the Custom of the Realm and that he had not delivered the Goods and declared also in a Trover and Conversion upon the same matter and after Verdict upon motion in Arrest of Judgment the Action was adjudged well brought 16 and 17 Car. 2. Hill in this Court. So an Action against one for twenty shillings upon the Hire of an Horse and declared further that he abused him and held good Curia Those Cases were after Verdict Causes upon Contract which are in the Right and Causes upon a Tort cannot be joyned for they do not only require several Pleas but there is several Process the one Summons Attachment c. the other Attachment c. These upon the Contract lie for and against Executors the other not but these seem to be both upon the Contract viz. That
are few that she goes to but lye desperately ill or dye under her hands Action good 21 Thou art a thievish Rogue and didst steal Plate from Wadham Colledge in Oxford The Words spoke in London where to be tryed 22 263 He is a Forsworn Justice and not fit to be a Justice of Peace if I did see him I would tell him so to his Face Action good 50 You are a Pimp and a Bawd and fetch young Gentlewomen to young Gentlemen 53 Of an Attorney That he could not Read a Declaration 98 He hath broke 2 or 3 of his Fathers Ribs of which he shortly after dyed and I will complain to a Justice of him he may be hangd for the Murder tho it were done 20 years since Action good 117 Of a Woollen Draper You are a Cheating Fellow and keep a false Book Action lies 117 He hath Forged his Vncle Row's Will 149 He had pickt his Pocket against his will and was a Pick pocket Not Actionable 213 Of a Justice of Peace He is not worth a groat and is gone to the Dogs Not Actionable 258 He is a false cheating Knave and keeps a false Debt Book with which he cheats the Country Actionable 263 For charging the Plaintiff with Felony generally Good 264 Of an under Carrier of Post Letters He hath broken up Letters and taken out Bills of Exchange Not lies 275 The Defendant said to the Plaintiff I know my self and I know you I never buggerd a Mare The words Actionable 276 He would have given D. Money to have Robbed G's House and he did Rob it 323 Administration By the Civil Law Administration ought to be committed to the Residuary Legatee whether Assets or not Assets 218 To which the Court of K. B. strongly inclined 219 316 Admiralty May punish one that resists the Process of their Court and may Fine and Imprison for a Contempt in the face of their Court but not give the Party Damages 1 Where Sentence is obtained in a Foreign Admiralty one may Libel for Execution thereof here thô the matter were not originally determinable in our Admiralty yet if the Contract were made on Land beyond Seas Prohibition lies 32 Its Jurisdiction in seizing Ships 173 It hath Jurisdiction of Ships taken by Pirates but not if taken by Enemies 308 Hath Jurisdiction for Mariners Wages 343 Age. Bond Conditioned that the Son and the Daughter of J. S. shall at their full Age give Releases this must be taken at their respective Ages 58 Alien Of his Capacity and Incapacity 417 Amendment The Court having Power over their own Entries and Judgments can amend defaults of Clerks after Judgment thô in an other Term 132 Mistake of the name in a Judgment in Ireland amendable here 217 No Amendment of a Return after the Filing 336 Apprentice See Statutes Whether the Quarter Sessions can discharge an Indenture of Apprenticeship 174 Appurtenant See Reputation A thing Appurtenant may be by Grant but a thing Appendant must be by Prescription 407 Connisance of Pleas may be created by the King 's Grant as he pleases either in Gross or as Appurtenant ibid. Arbitrament Award What Pleas good in Arbitrament and what not 50 71 87 184 Arrest Where the Bayliff may break a House upon an Arrest 306 Assault and Battery In an Action for both the Defendant may be found Guilty of the Assault but not of the Battery and here no more Costs than Damages 256 Assets Bonds and Specialties no Assets till the Mony be paid 96 Assignment Assignment where the Assignor keeps Possession Fraudulent and such Fraud may be avered 329 331 The word Assignees includes Assignees in Law as well as Fact 340 Assumpsit See Pleading Whether a Stranger to the Consideration may bring the Action 6 7 318 332 Good cause of Demurrer in Assumpsit where the Consideration carries nothing of trouble or prejudice to the Plaintiff or benefit to the Defendant 9 A mistake in the time relating to a Promise good after a Verdict 14 see also 119 Whether multum gratissimum servitium and multa Beneficia be sufficient Considerations in an Assumpsit 27. So for opere labore Servitio 44 Infant may make a Consideration whereon to ground an Assumpsit 51 The Breach must be laid as the Promise is 64 Forbearance of Suit where a good Consideration whereon to ground an Assumpsit 120 152 154 159 Claim without proof where good to ground a Consideration in an Assumpsit 211 Of Reciprocal Promises 177 214 Assumpsits in Consideration of Marriage 262 268 One Excommunicated for not paying in a Church Rate a Promise to pay in Consideration of Absolution Good 297 In Consideration of delivering Goods to a third person Good 311 Attorney See Mandamus Attorneys at large have the same priviledge with Clerks of the Court 1 Whether an Attorney in the Courts at Westminster may practise in Inferiour Courts 11 Attorneys shall be discharged of the Service of the Common Wealth à fortiori of any private Service as Constable Collector of Rents c. 16 29 Committed for Suing out a Bill of Middlesex against a Countess 295 An Attorney or Clerk of Court shall not have Priviledge if Sued joyntly with others 299 Averment See Pleading Assignment Obligation Where necessary and where not 41 43 44 117 149 177 178 B. Bail THe Action shall not be said to be depending until the Bail is Filed and not from the first day of the Term 135 Condition of the Bail Bond ought to agree with the Writ or else be void 233 234 Whether the Principal and Bail may be both taken in Execution 315 Bankrupt A Tradesman given over Trading may be a Bankrupt in respect of Debts contracted before 5 What makes a Man a Trader so as to make him a Bankrupt 29 166 A Man has Judgment in Debt and then becomes Bankrupt who shall have Execution 193 Victuallers for the Fleet not Traders within the Statute of Bankrupts tho' they Victual Merchantmen with the Surplus 170 The Commissioners Authority as to Commitments 323 Where a Debt paid by a Bankrupt to his Creditors shall be refunded 370 371 Baron and Feme See Statutes In Trover that they ad usum proprium converterunt c. Not good 12 24 33 Indebitatus Assump lies against the Husband for Apparel sold to the Wife 42 How to be Bailed when Arrested 49 Baron and Feme taken in Execution the Husband Escapes the Escape of the Husband is the Escape of the Wife and she shall be discharged 51 Battery brought against both and found only against the Feme Good 93 In a Suit the Baron makes an Attorney for both except the Feme be under Age 185. For then she is to be admitted by Guardian ibid. Where the Husband cannot release without the Wife 209 Battery brought by B. and F. for beating them both how far good 328 Bishop See Pleadings Of Common Right the Dean and Chapter are Guardians of the Spiritualties during the Vacancy of a Bishoprick but the
remedied either by the words or intention of the Act. Vid. Ante. Nokes and Stokes versus .... THey two brought an Action of Debt upon a Bond. The Defendant pleads the Release of one of the Plaintiffs They pray Oyer of the Release which was of all Actions Suits c. that he had against the Defendant upon his own account and pleads that this Bond was not upon his own account and upon this Issue is taken and found for the Plaintiff Now it was moved in Arrest of Judgment That this Issue was frivolous And upon the whole matter it appears that the Plaintiffs have no cause of Action for the Release of one Obligée dischargeth the Bond and it must be upon his own account But the Court Seriatim delivered their Opinions for the Plaintiffs for he might take this Bond as a security of a Debt with which he was intrusted for another And the truth of the case upon the Evidence was That the Defendant being charged with the payment of divers Legacies to Strangers was requested by one of the Plaintiffs to enter into Bond to him and the other Plaintiff who afterwards made the Release that should be Conditioned for the payment of the Money Bequeathed to the Obligees to the use of the Strangers which not being done the Defendant was Arrested at the Suit of the Plaintiffs this being made known to the Plaintiff who was absent at the taking of the Bond and knowing nothing of the Suit was contented to Release all Actions he had against the Defendant upon his own account King versus Atkins DEbt upon a Bond of 2000 l The Defendant demands Oyer of the Condition which was That whereas the Plaintiff was bound with the Defendant to the King that the Defendant should give a true account of such Moneys as he should receive for the Excise and Chimney Money And that the Defendant should save him harmless from all Payments or Suits upon that Bond and pleads that no Suits Process or Execution was against the Plaintiff upon that Bond issint he saved him harmless The Plaintiff replies a Scire facias issued against him out of the Exchequer upon the Bond and that he was forced to retain an Attorney and that he paid 1 s for his Appearance To this the Defendant Demurrs Because he did not alledge that he gave him notice And this was said not to be like Broughtons Case 5 Co. For there the Defendant knew the Money was to be paid at the day and it was to save him harmless from the single thing but here from a great many so that it was requisite he should have notice Where the Mesne is bound to acquit the Tenant the Tenant shall not recover Damages unless he gives the Mesne notice that he is distrained so that he may Replevy the Beasts But it was said That no notice ought to be given where the thing is an Act of a third person as to pay Money when J. S. comes into England To which it was answered That did not lie in the Conusance of either Party but this was in the notice of the Obligée But that which séemed most against the Demurrer in this case was That the Defendant having pleaded no Process c. he takes upon him the knowledge of it Vid. 1 Cro. 54. And if in the Replication the Plaintiff had alledged notice and the Defendant had Traversed it it would have been a departure and the Court advised until the next Term. Postea Welsh versus Bell. TRespass quare clausum fregit and taking of two Horses out of his Cart The Defendant justifies the taking of them as a Distress for Rent due to him And to this the Plaintiff Demurrs First He could not sever the Horses but ought to have distreined Cart and all according to the Book of 20 Edw. 4. 3. Distress of a Cart loaden with Corn Rolls 270. 3 Cro. 783. and four Horses in it adjudged not excessive because he could not sever the Horses And in 3 Cro. 7. a Difference is taken between Distress for Rent and Damage Feasant to this purpose And the common ground is that a Distress must be taken so as it may be returned in the same plight 1 Inst 47. a. Secondly It appeared also in the Declaration That there was a Servant of the Plaintiffs in the Cart by reason of which it was alledged that the Cart and Horses were priviledged for a Horse cannot be distrained upon which a Man is Riding 3 Cro. 549 596. Ed Adjornatur Twisden cited a Case adjudged before Rolls Chief Justice in Trespass for taking of his Trunk The Case was the Defendant distrained it for Rent and being Informed that there were things of Value in it he caused it to be Corded to prevent damage And for that he was adjudged a Trespasser ab initio Anonymus AN Action on the Case was brought against the Defendant for taking and keeping of the Plaintiffs Wife from him And upon Issue joyned the Court was moved to defer the Trial the Case being that the Wife was Daughter of the Defendant and taken from him by the Plaintiff without his Consent and as the Plaintiff affirmed Married to him Now this Marriage was questioned in the Court Christian And the Court thought it reasonable that the Trial should be delayed until the Marriage was determined there But they were Informed on the other side that the Court were ready to give Sentence That the Marriage was good and the Defendant had Appealed Wherefore they thought fit that the Trial of the Cause should proceed The King versus Nelson AN Order for the keeping of a Bastard Child being removed by Certiorari it was moved to have it quashed because it was ad Sessionem pacis in Com' praed ' and doth not say Tent ' pro ' Com' praedict ' Sed non allocatur For such strictness is not required in an Order But Twisden said it ought to be so in an Indictment It was further alledged that it ought to appear That the Child was likely to be chargeable to the Parish which was agreed But that was sufficiently set forth in the Order for upon Reading of it it appeared that he was ordered to pay such Charges as the Parish had been at Wherefore the Court confirmed the Order and awarded that he should pay such Costs as the Parish had been at for Contesting of it as was done formerly in one Haslefoot's Case And besides the Court Committed Nelson Anonymus DEbt upon a Bond Conditioned to perform Covenants If the Defendant pleads performance without demanding Oyer of the Indenture it is a good cause of Demurrer Anonymus IN Covenant the Plaintiff declares That he let the Defendant a House and that he Covenanted to Repair it The Defendant pleads That it was sufficiently Repaired before the Action brought The Plaintiff Demurs because he doth not plead That he Repaired it for it may be the Plaintiff himself did it Keeling and Raynsford inclined against the Demurrer because
constant Practice Secondly There was no good Trial for there is an Award of a Venire facias but no Writ certified But this was also Over-ruled for it is the Course of the Assizes not to make out any Writ Thirdly Issue is joyned by the Clerk of Assize which the Court said ought to be for he is Attorney General there Parker versus Welby THe Plaintiff brought an Action upon the Case against the Defendant and Declared that he Sued out a Latitat against a third Person directed to the Defendant being Sheriff who thereupon Arrested him and after let him go at large And then he Returned a Cepi Corpus paratum habuit ubi revera he had not his Body at the Day To this Declaration the Defendant Demurred supposing that no Action would lye for this False Return for the Statute of 23 H. 6. obliges the Sheriff to let to Bail and if he hath not the Body at the Day he is to be amerced But the Court were of Opinion for the Plaintiff For it shall be intended that he let him go without Bail and if he did not he ought to have pleaded the Statute of 23 H. 6. which is a Private Law And at the Common Law a man could not be let at large in such case without a Homine Replegiando Or else he might have pleaded Not Guilty and given the Statute in Evidence And so it is Adjudged in Layton and Gardiner's Case 3 Cro. 460. So Moor placito 996. 2 Cro. 352. and 3 Cro. 624. Where the Defendant pleaded That he let to Bail according to the Statute and the Plaintiff was barred Twisden cited a Case in this Court Paschae 21 Car. 1. Rot. 616. between Franklyn and Andrews where the Plaintiff Declared as in this Case And the Defendant pleaded the Statute and that he let him at large upon Sureties and traversed absque hoc that he returned his Writ Aliter aut alio modo To which the Plaintiff Demurred It was Resolved First That the Sheriff could Return nothing but Cepi Corpus And he was then amerced because he offered to make a Special Return Secondly That where the Sheriff let the parties out to the Bail and he made such Return that it was no False Return and therefore he should not have traversed Absque hoc that he Returned Aliter vel alio modo As in Maintenance where the Defendant Iustifies for that the party could not speak English and therefore he went with him to instruct his Counsel He shall traverse Absque hoc that he maintained Aliter because that he maintained Would not do tho' it be justifiable So in that case the Court ordered it to be Entred upon the Roll that Judgment was given for the Plaintiff quia Traversia fuit mala So here they Ordered it to be Entred because the Defendant did not plead the Statute of 23 H. 6. Hocking versus Matthews AN Action upon the Case was brought for Maliciously Impleading and causing him to be Excommunicated in the Ecclesiastical Court whereby he was taken upon an Excom ' Cap ' and Imprisoned until he got himself absolved The Defendant pleaded Not Guilty and found against him And it was afterwards moved in Arrest of Judgment that the Declaration was not good for no Action will lye for suing a man in the Spiritual Court tho' without cause no more than in Suing in the Temporal Courts For Fitz. N. B. is That a man shall not be punished for bringing the Kings Writs So Hob. Waterer and Freeman's Case And it hath been lately held that no Action will lye for an Indictment of Trespass tho' falso but an Action of the Case will lye for suing in Court Christian for a Temporal Cause But the Court in this Cause gave Judgment for the Plaintiff For tho' in an Action between party and party in the Ecclesiastical Court where if the matter goes for the Defendant he shall have his Costs no Action will lye if the Court hath Iurisdiction Yet where there is a Citation ex Officio and that is prosecuted malicously without ground the Party shall have his Action for in such Suit he can have no Costs And so is Carlion and Mills's Case Adjudged 1 Cro. 291. And this shall be so intended after the Verdict or otherwise the Defendant should have shewed it to be otherwise and Iustified And Rainsford said without Cause shall be understood without any Libel or Legal Proceedings against him Anonymus IN Debt upon an Obligation to perform an Award which was to pay the Rent mentioned in such an Indenture He that pleads performance of this Award needs not set forth the Indenture but refer generally to it But if it be to be paid in such manner and at such times as is expressed in the Indenture then it must be set forth at large The like of an Award of payment of Money given by a Will Wilson versus Armorer THe Case was Argued again this Term by Coleman for the Plaintiff who Argued that the Exception takes the two Closes wholly out of the Grant and that no modification can be annexed to it 3 Cro. 657. and Moor Pl. 747. A Lease was made for certain Lands excepting a Close and Covenants were for quiet Enjoyment of the Premisses The Lessee disturbed the Plaintiffs possession in the Close excepted yet he could not bring a Writ of Co-venant for by the Exception it is as much as if it had been never mentioned and in this Case the Livery being secundum formam Chartae could not work upon these Closes The Case of Hodge and Crosse cited in Hob. 171. was this A man gave Lands to another Habendum to him and his Heirs after the death of the Feoffor and Livery secundum formam Chartae Resolved a void Feoffment and relyed upon the Case in 1 Anderson 129. as full in the Point A Lease of an House excepting a Chamber pro usu suo proprio occupatione It was held that he might assign Weston ê contra This Exception is altogether void for it cannot be for the Life of the Feoffor only Bro. tit Reservation 13. and it shall not except the whole Fee against the Intention of the Parties for then the Ill wording of his Exception should give him above twice as much as otherwise be should have had and it is but one entire Sentence and taking it altogether it must have an effect which the Law doth not admit and is therefore to be wholly rejected As where a man grants his Term after his death the Grant is void Otherwise where he grants his Term habendum after his death for there the last Sentence is rejected Hob. 171. The Case of the Exception of the Chamber is not alike for excepting it for his own use are apt words to give him power to dispose of it at his pleasure Keeling Rainsford and Moreton held the Exception good for the entire Fee Twisden That it was wholly void because one Sentence Plus Postea Sympson versus Quinley
TRin. 20 Car. 2. Rot. 719. A Custom that Lands should descend always to the Heirs Males viz To the Males in the Collateral Line excluding Females in the Lineal was held good Which it was said was allowed anciently in the Marches of Scotland in order to the Defence of the Realm which was there most to be looked to tho' it is said in Davis's Reports That the Custom of Gavelkind which was pretended in Ireland and Wales to divide only between Males was naught But the former Custom was adjudged good in this Court Hill 18 Car. 2. Rot. 718. Foot versus Berkly BErkly had Iudgment in an Ejectment in Communi Banco and Execution of his Damages and Costs Foot brings Error and the Judgment is affirmed Whereupon Berkly prays his Costs for his delay and charges but could not have them For no Costs were in such case at the Common Law and the Statute of 3 H. 7. cap. 10. gives them only where Error is brought in delay of Execution so 19 H. 7. cap. 20. And here tho' he had not Execution of the Term yet he had it of his Costs If one hath Iudgment in a Formedon in Remainder and before Execution the Tenant brings Error the Judgment is affirmed yet he shall pay no Costs because none were recoverable at first 1 Cro. Ante. Weyman versus Smith A Prohibition was prayed to the Mayor and Court of Bristol Suggesting that a Plaint was Entred there for 66 l and that the Cause of Action arose in London and not in Bristol and so out of their Iurisdiction Note An Affidavit was also made thereof and this is upon Westm cap. 35. and so is F.N.B. 45. Vnless the party pleading in Bar or Imparling admits the Iurisdiction of the Court 2 Inst Tarlour and Rous versus Parner AN Account brought by the Plaintiffs as Churchwardens against the Defendant the former Churchwarden for a Bell c. The Defendant pleads That it lacked mending and that by the Assent of the Parishioners it was delivered to a Bell Founder who kept it until he should be paid To which the Plaintiff Demurred For this Plea is no bar of the Account but a good Discharge before Auditors But it was said on the other side That the Matter pleaded shewed that the Defendant was never Accountable therefore it might be in Bar. The contrary whereof is Adjudged in the same Case in terminis 1 Rolls 121. between Methold and Wyn and so was the Opinion of the Court here But then it was alledged that the Declaration was not good for there were two Plaintiffs and yet it is quod reddat ei compotum and it is de bonis Ecclesiae whereas it should have been bonis Parochianorum For the first the Court said that it should be amended for it was the default of the Clerk But the other was doubtful For the Presidents were affirmed to be both ways but they rather inclined that the Declaration was not good for that cause Anonymus AN Indictment of Forcible Entry in unum Messuagium vel domum Mansional ' quaere if not uncertain and other Lands and Tenements tent ' ad voluntat ' Dom ' secundum consuetudinem Manerii and doth not express what Estate For which the Court held it ought to be quashed for the Statutes 8 H. 6. and R. 2. extend only to Freeholds and the Statute in King James's time to Leases for years and Copyholds And here tho' he saith at the Will of the Lord according to the Custom of the Mannor yet 't is not sufficient because he saith not by Copy of Court Roll. And it was Adjudged in 1653 in this Court that none of the Statutes extended to Tenants at Will Martyn versus Delboe IN an Assumpsit the Plaintiff Declared That he was a Merchant and the Defendant being also a Merchant was Indebted to him in 1300 l And a Communication being had between them of this Debt the Defenant promised him in Consideration thereof That he should have Share to the Value of his said Debt in a Ship of the Defendants which was then bound for the Barbadoes and that upon the Return of the Ship he would give him a true Account and pay him his proportion And sets forth That the Ship did go the said Voyage and returned to London and that after the Defendant with some other Owners had made an account of the Merchandize returned in the said Ship which amounted to 9000 l and that the Plaintiffs Share thereof came to 1700 l which he had demanded of the Defendant and he refused to pay it c. To this the Defendant pleads the Statue of Limitations and the Plaintiff Demurred Alledging that this Action was grounded upon Merchants Accounts which were excepted out of the Statute Tho' if an Action be brought for a Debt upon an Account stated between Merchants the Statute is pleadable as was Adjudged in this Court last Hillary Term between Webber and Perit yet here there being no Account ever stated between the Plaintiff and Defendant it is directly within the Statute And of that Opinion were Keeling and Rainsford But Twisden inclined otherwise because the Plaintiff declares upon an Account stated and tho' between Strangers yet he bringing his Action upon it admits it Et Adjornatur Nota Every Parish of Common Right ought to Repair the High-ways and no Agreement with any person whatever can take off this Charge which the Law lays upon them Crispe and Jackson versus The Mayor and Commonalty of Berwick IN Covenant after Verdict for the Plaintiff it was moved in Arrest of Judgment that there was a Mis-Trial the Venire being awarded to an adjoyning County Which the Court after Hearing of Arguments in it Ruled it to be well enough but one of the Plaintiffs died before the Court had delivered their Opinions It is prayed notwithstanding that Judgment might be Entred there be no default in the Plaintiffs but a delay which came by the act of the Court and that it was within the Statute of this King That the death of the Party between Verdict and Judgment should not abate the Action and that it was in the discretion of the Court whether they would take notice of the Death in this case for the Defendant hath no Day in Court to plead there being no Continuances entred after the Return of the Postea 1 Leon. 187. Isley's Case Latches Rep. 92. And the Court were of Opinion that Judgment ought to be Entred and there being no Continuances it may be as if immediately upon the Return of the Postea Ante. Lion versus Carew THe Case was A Lease was made to two for 99 years if three Lives should so long live and this to commence after the end of a Lease for Life Reddend ' a certain yearly Rent and two Work-days in Harvest post principium inde reddend ' inde 3 l nom ' Harriotte post mortem of the Lessees or either of them and reddend ' two Capons at Christmass post
Pro praedicto anno which refers to the Year mentioned before which was next following the Lease and it might be said finito anno 18 for so it was ended then or at any time after And the Court said It would be clearly good after a Verdict But being upon a Demurrer they would Advise Anonymus AN Indictment for not performing an Order of the Justices of the Peace concerning a Bastard Child It was moved to quash it because it did not conclude contra pacem But it was held that ought not to be it being but for a Non feasans An Indictment of Forcible Entry was quashed because it alledged the party to be seized and possessed and so uncertain which Monnington versus William IN a Replevin the Defendant avowed for a Rent charge and set forth That the Plaintiff granted a Rent to J. S. in Fee who granted bargained and sold it una cum arreragiis to him and shewed the Indenture to be Inrolled within six Months virtute cujus and the Statute of Uses he was seized and for a years Rent since the Assignment avowed The Plaintiff replies and Traverses the Grant of J. S. prout and found for the Avowant and moved in Arrest of Judgment by Jones First That here is an impossible Issue which comprehends as well the Grant of the Arrears which cannot be as the Rent Secondly He Intities himself by Bargain and Sale and the Statute of Uses and doth not shew that it was in Consideration of Money and otherwise the Rent cannot pass without Atturnment 3 Cro. 166. But the Court gave Iudgment for the Avowant As to the first The pleading the Arrears to be granted is altogether void and does no harm in regard the Avowry is expresly for Rent Arrear after the Grant And for the second The Court held the pleading good after a Verdict and it shall be intended that Evidence was given of Money paid As a Grant of a Reversion pleaded without Attornment or a grant of a Rent and not expressed to be by Deed yet a Verdict will help those defects Huttons Rep. 54. Note Twisden said where a man in pleading sets forth his Title by a Conveyance in which are the words Give Grant Release Confirm Bargain Sell c. he must express to which of them he will use it Addams versus Guy ERror to Reverse a Judgment given in the Court at Bristol in Debt against the Defendant as Executor to J.S. who declared upon a Mutuasset of him so much because Debt lies not against an Executor upon a simple Contract Sed non allocatur He agreeing to the Action and suffering Iudgment to pass against him Secondly That he set forth that the Testator Mutuasset which properly signifies to lend and not to borrow and it ought to have been Mutuatus esset But the Court affirmed the Iudgment and held that either might be expounded to borrow Anonymus AN Administrator brought Trover and Conversion and declared That the Intestate at the time of his Death was possessed of divers Goods and that after his Death and before Administration committed they came to the Defendants hands who converted them Vpon Not guilty it was found for the Defendant and prayed that he might have Costs and the Court held that he ought to have them the Conversion being since the Death of the Intestate Sir Thomas Pettus Case IT was moved to quash an Indictment of Manslaughter against him for that it is said to be taken coram Coronatoribus Comitatus Civitatis Norwici at Bucthorp in the County of the City per Juramentum hominum de Civitate Norwici Whereas the Jury ought to have come from the County and City of Norwich for they shall not be intended to be coexistent especially in an Indictment As if the Caption of an Indictment be at Dale and the Jury come de Parochia de Dale it is good cause to quash it yet in an Action they should be intended the same So it is sufficient to put the County in the Margin of the Declaration in an Action but not so in an Indictment 1 Cro. Again By the Statute de Coronatoribus the Jury ought to come from the four next Vills Of the first Exception the Court doubted But to the second Twisden said it need not be returned upon the Indictment that the Jury came from the four next Vills But they would not quash the Indictment upon Motion for they said it was not their course to do so in Case of Manslaughter but ruled the Party to Plead to it tho' it was shewn he had been Tryed at the Assizes upon an Indictment of Murder for the same Killing and found Guilty of Manslaughter The King versus Clapham A Mandamus was prayed to the Lord President and Council of the Marches to admit Clapham to the Exercise of the Office of Deputy Secretary And it was returned quod tempore receptionis brevis non fuit constitutus Deputatus It was said That one which claimed to be Deputy his Authority being revocable could not pray a Mandamus But to that it was answered That the Mandamus was at the Suit of Mr. Win and it set forth how he had the Office of Secretary exercend ' per se vel sufficientem Deputatum suum and that they had refused this Clapham whom he had appointed his Deputy And it was resolved That the Mandamus was well awarded for he had no other remedy to have his Deputy admitted And whereas it was said being an Officer belonging to the Court they are to judge of his sufficiency and so have power to refuse him It was answered to and so resolved That then they ought to have returned that he was insufficient And it was also resolved by all the Court That the Return being that non fuit tempore receptionis brevis Deputatus constitutus was naught for if he were made his Deputy before the Return was true unless he made him his Deputy at the very instant of the Receipt of the Writ and Returns must be certain because there is nothing can be pleaded to them Anonymus AN Indictment for not performing an Order of the Justices for payment of a Poors Rate It was moved to quash it because it did not conclude Contra pacem Sed non allocatur because it was not for a Male Fesans but a Non Fesans Horsam versus Turget MIch 22 Car. 2. Rot. 687. Debt upon a Bond. The Defendant demands Oyer of the Condition which was to perform an Award and sets forth that there were divers Accounts c. betwéen J. S. Testator of the Plaintiff and the Defendant and they submitted all Controversies to the Award of such an one and that he awarded that the Plaintiff should deliver certain Goods of which the Testator died possessed to the Defendant and that the Defendant should pay unto the Plaintiff 320 l And then sets forth the custom of Foreign Attachments in London that if a Suit were commenced against the Executor of any person
if the Heirs satisfied the Office of their Title without pleading as where Conusans of Pleas have been once allowed it is sufficient in another Action to shew the former Roll where it was alallowed Note An Indictment for a Nusans in the High-way The Court will not quash this Indictment upon Motion unless certified that the Nusans is removed But they will Reverse it upon a Writ of Error if their be Error in it without any such Certificate Iles Case A Mandamus was prayed to the Churchwardens of the Parish of Kinsmere in Hampton to restore John Iles to the place of Sexton there and it was granted And so the Court said hath béen for a Parish Clark Churchwardens a Scavenger But it was denied to one who pretended to be Master of the Lord Mayors Waterhouse for that they said was not an Office but a Service Anonymus A Fine was levied of Lands in Blandford Forum Resolved That this should not pass Lands in a Hamlet of that Town there being Constables distinct in Blandford Forum from others that were in the Hamlet so that they were as two Vills But if a Fine be levied of Lands in a Parish it shall extend to all the Vills within the Parish The Lord Hawley's Case A Mandamus was granted to restore him to the Recordership of Bath The Corporation returned That they were Incorporated by Letters Patents of Queen Elizabeth which empowered them to chuse probum discretum hominem in legibus Angliae peritum to be their Recorder and to hold a Court twice every Week before the Mayor Alderman and Recorder or any two of them whereof the Mayor to be one That the 1st of August 15 of this King he was made Recorder by the Committee upon the Act of this King for regulating of Corporations and that he continued in the Office Secundum locationem illam until the 25 of December 21 of the King and that from the 1 of August 15 of the King to August 21 he absented himself by the space of five years without any reasonable Cause and that he is nullo modo peritus in lege and that at a Court August the 21 they summoned him to appear some days before and he not coming they amoved him from his Office the 30 day of the said August After this Return filed it was moved First That it was repugnant for they returned That the Lord Hawley continued in his Office until the 25 of December 21 of the King and after that they amoved him in August 21 of the King To which it was answered That in regard upon the whole return it appears that he was amoved though it be said he continued after that is not material but surplusage As where a Jury gives a general Verdict and yet discloses special matter disagreeing to it the Court judges according to the special matter or else they might mean that though he were turned out yet he did continue exercising it de facto And the Court were of Opinion that the contradiction in the Return was not material For Hale said If it shall be taken that he is yet in then there is no need of a Mandamus Again it was said That the matter of absence was not sufficiently returned for it appears by the Charter that the presence of the Recorder is not necessary to the holding of the Court for it is to be held before the Mayor Aldermen and Recorder or any two of them whereof the Mayor to be one then they have not returned that they held a Court in all that time neither have they returned that any mischief or inconvenience happned to them by his absence A Park-keeper shall not forfeit his Office for Non-attendance unless a Deer be killed or the like in his absence Also it is returned from the 1 of Aug. 15. Car. to the 1 of Aug. 21. he absented himself for five years and he might be out of Town five years in six years time and yet be there every Court day And for the other cause of removal that he was not peritus in lege It was said That the Corporation being Laymen could not return a thing whereof they were not Judges That the Return was too general nullo modus peritus but ought to have set forth some special Fact whereby it might appear to the Court. Also They could not remove him for a Cause which they could not examin he was put in by Commissioners authorised by Act of Parliament which it was said did capacitate implicitely him at least their Act supplied the Election of the Town which if it had been would have dispensed with his disability And the Case of Bernardiston Recorder of Colchester was much relied upon who in 1655 brought a Mandamus to be restored to his Office And it was returned That he was not learned in the Law and that one being indicted before him upon the Statute of 1 Jac. of having two Wives and convicted he denied him Clergy and also they returned That he absented himself for nine Months and notwithstanding by the Iudgment of the Court he was restored It was said by Sir William Jones on the other side That the absence as it was returned was sufficient Cause to remove him for it is returned That without any reasonable Cause seipsum elongavit by the space of five years which must be intended five years continued and not made up by Fractions and so held the Court in that Case and executionem officij sui totaliter neglexit Now tho' his Presence be not of absolute necessity to the holding of the Court yet it is highly convenient that he should be there seeing the Charter gives such large Iurisdictions to determine all Causes excepting such as concern Freehold according to Law The Court here also must judicially take notice That the Office of Recorder is concerned in other matters besides the Administration of Justice in the Court for he is as it were the Common Counsel of the Corporation And whereas it hath béen objected That it is not returned that they had held a Court during his absence or that any prejudice had ensued Also That it must be intended that there were Courts when they have returned the Charter which empower them to hold one twice every week and 't is returned That he absented himself in Regiminis Civitatis detrimentum c. and ' its apparent they must suffer prejudice by so long absence If a Park-keeper should desert his Office for five years it would make a Forfeiture without Special Damage The other matter returned also That he is nullo modo peritus in lege is good Cause for the Charter appoints them to Elect such an one so one that is not so qualified is not capable and the Act of this King authorises Commissioners but to do what the Corporation might have done It is apparent That the Office requires skill in the Law he hath no power to make a Deputy by the Statute of 21 Jac. Causes in many Cases are
against the rest which therefore was not affected by the Error The fourth was overruled for where the Party is present the Iudgment is always quod committitur as appeared by the Presidents Fifthly the Variances from the Statute were not held to be material for in Old writings 't is written Sea of Rome and declaring in Conscience and in my Conscience are the same The sixth Error was also disallowed for the words of the Statute are shall incur the danger and penalty of Praemunire mentioned in 16 R. 2. which doth not necessarily bind up to the Process Vid. 16 R. 2. 5. which makes this very clear but means that such Iudgment and Forfeiture shall be and it appearing that the Parties were present there was no need of any Process But as to the third Exception which was taken to the Venire they said they would be advised until the next Term and they told the Prisoners who were Quakers and had brought a Paper which they said contained their acknowledgment of the Kings Authority and Profession to submit to his Government and that they had no exception to the matter contained in the Oath but to the Circumstance only and that they durst not take an Oath in any Cause which they prayed might be read but it could not be permitted that their best course were to supplicate his Majesty in the mean time for his Gracious Pardon Radly and Delbow versus Eglesfield and Whital IN an Action sur 13 R. 2. cap. 5. 2. H. 4. cap. 11. for suing the Plaintiff in the Admiralty for a Ship called the Malmoise pretending she was taken piratice whereas the Plaintiff bought her infra corpus Com. It seems there was a Sentence of Adjudication of her to be lawful Prize in Scotland in April 1667. as having carried bellicos apparatus i.e. Contraband Goods in the late Dutch War and the Plaintiff bought her here under that Title The Libel was That the Ship belonged to the Defendants and about January 1665 was laden with Masts c. and had Letters of safe conduct from the Duke of York to protect her from Concussion c. and that certain Scottish Privateers did practise to take the said Ship and after the Defendants took her and being requested refused to deliver her and that ratione lucri cessantis damni emergentis they suffred so much loss c. The Defendants pleaded Not guilty to this Action and upon the Tryal would not examin any Witnesses but prayed the Opinion of the Court who said there was good Cause upon the Libel which now they must take to be true in the first instance for the Admiralty to proceed In 43 Eliz. it was resolved 1 Cro. 685. Yelv. 125. Sty 418. If Goods are taken by Pirates on the Sea tho' they are sold afterwards at Land yet the Admiralty had Conusans thereof for that which is incident to the original matter shall not take away the Iurisdiction and that is Law tho' there were another Resolution in Bingleys Case 1 Rolls 531 Hob. 78. 3 Jac. 7 Ed. 4. 14. and 22. Ed. 4. If Goods are taken by an Enemy and retaken by an Englishman the property is changed Otherwise if by Pirates And if in this Case the taking were not Piraticè it ought to have béen alledged on the other side Had the Sentence in Scotland béen pleaded in the Admiralty the Court would have given deference to it as if a Man had a Judgment in Communi Banco and should begin a Suit for the same in Banco Regis This might be made a good Plea to the Suit but not to the Iurisdiction for for ought appeared this might have been the first Prosecution and no Proceedings might have béen in Scotland This came to be tryed at the Nisi prius before Hales who was of the Opinion ut supra then But because it was a cause of weight he ordered it to be tryed at the Bar. And because 't was for his satisfaction and for a full Resolution the Jury was paid between the Parties Note A Proctour sworn a Witness said when this Cause was in the Admiralty there was a provisionate Decree as they call it or primum Decretum which is a Decree of the Possession of the Ship and upon that an Appeal to the Delegates but my Lord Keeper being informed that no Appeal to them lay upon it because it was but an interlocutory Decree upon hearing of Counsel he superseded the Commission When a Ship is so seized upon security given 't is the course of the Admiralty to suffer her to be hired out Watkins versus Edwards PAsch 22 Car. 2. Rot. 408. An Action of Covenant was brought by an Infant per Guardianum suum for that he being bound Apprentice to the Defendant by Indenture c. the Defendant did not keep 5 Eliz. c. 4. maintain educate and teach him to his Trade of a Draper as he ought but turned him away The Defendant pleads That he was a Citizen and Freeman of Bristol and that at the General Sessions of the Peace there there was an Order made that he should be discharged of the Plaintiff for his disorderly living and beating of his Master and Mistress and that this Order was Enrolled by the Clerk of the Peace as it ought to be c. To this the Plaintiff Demurrs The First question was Whether the Statute extends to all Apprentices or only such as are imposed upon their Master by the Justicies and compellable to serve And Hale and Moreton inclined That it did not extend to all Apprentices Twisden and Rainford contrary Secondly Whether they had power to discharge the Master of his Apprentice as they might è Converso Hale conceived they could not But cause the Servant to have due Correction in case the Master complained of him Twisden Rainsford and Moreton Contra. Hankworthy's Case For he may be so incorrigible that the Master cannot keep him without standing in continual fear and in Mich. 21 and Hill 2. 22 Regis nunc upon the removal of an Order of Sessions from York it was resolved That the Master might be eased of his Apprenetice by the Sessions upon just cause And Twisden said Shelton Clerk of the Peace for Middlesex informed him that such Orders are frequently made Thirdly The great question was whether the Defendant ought not to have applied himself to one Justice first as the Statute directs that he he might if he could have settled the business and if not then to go to the Sessions and not to go thither per saltum as upon the Statute of the 18 Eliz. cap. 3. The Sessions cannot make an Order for keeping of a Bastard but upon an Appeal from the two Justices which are first to make an Order Hale This case differs for the 18 Eliz. gives the first Men power to make an Order which shall bind the Parties until it is avoided by Appeal but this Statute of 5 Eliz. gives no Iurisdiction to
an one carries an Evidence of fraud yet is not upon that account only always to be reckoned fraudulent or to be avoided by a Purchaser upon a valuable Consideration Thirdly Whereas it was objected That the Trust of the Term which was but a Chattel could not be Entailed and therefore the Term was liable to the Rent notwithstanding the Assignment of it and limiting the Trust as before It was answered and resolved by the Court that if it had béen a Term in Gross in F. D. the Trust of it could have been no more Entailed than the Term it self but F. D. having the Term in Point of Interest and at the same the Trust of the Inheritance might Entail the Trust of the Term to wait upon the Inheritance and that the Chancery does every day allow which they should take notice of But then it was objected that he ought to have limited the Trust of the Inheritance and of the Term both together but F. D. by a distinct Clause in the Deed limits the Trust of the Term which divides it and makes it independent upon the Inheritance the Trust of which he limits by another Clause To that it was said by the Court that tho' the Limitations were by several Clauses yet all must be taken as one entire Conveyance And Hale said that in 1646 a Lease for years was assigned and the Trust of it Entailed and two days after the Trust of the Inheritance Entailed in the same manner and it was held by the best Counsel then in England that tho' this were done by several Deeds and at several times yet being in pursuance of one Agreement that all was to be taken as one entire Act according to the Case of 17 Jac. where a Fine was levied to Lessee for years with an intent that he should suffer a Recovery which was had the Term following and resolved that his Term was not drowned The Jury hearing the Opinion of the Court found for the Plaintiff for all save a 12th part for so much was drowned and surrendred by the Assignment of F. D. to Sir W. S. one of the six Joynt-tenants of the Reversion Wood versus Coat AN Action for words That the Defendant being indicted of a forcible Entry at the Sessions and the Plaintiff produced as a Witness for the King and Swore nothing but what was true the Defendant after habens colloquium of the said Oath said The Plaintiff took a false Oath against me at the Sessions innuendo the said Oath c. After Verdict for the Plaintiff it was moved That the Action did not lye for the Defendant might mean an Extrajudicial Oath In Pritchards Case 2 Rolls where one said of him He took a false Oath against me at the Assizes It was held that the Action did not lye Sed non allocatur for in that case there was no colloquium laid which is alledged in this case and shews to what the words spoken did relate Bradnox Case A Habeas Corpus was brought to remove the Body of Broadnox who was taken by Process upon a Plaint exhibited in the Court of the Sheriffs in London and it was returned That time out of mind the Mayor Aldermen and Common Council of the City have had the Government and Regulation of Trade within the City and power to make By laws concerning the same and that they had made a By-law that there should be but 420 Carrs allowed to work within the City all which should be Licensed by the President of Christs Church Hospital and that there should be paid for the License of every Carr 1 l Fine and 17 s per annum to the said President to be employed for the use of the Poor within the Hospital and that none should use a Carr without such License under a certain penalty to be recovered c. Provided That all persons may send their own Carrs to the Wharfs c. and carry Goods in their own Carrs from Wharfs except such as shall be Traders or Retailers in Fuel That B. without such License wrought with a Carr pro lucro suo proprio and for the penalty forfeited thereupon a Plaint was levied against him c. It was prayed that there might be no Procedendo in this Case for tho' the By law should be admitted to be good having a Custom to warrant it as was ajudged in this Court 19 Car. nunc between Player and Jenkins yet it appears that the Plaint is insufficient for in that no Custom is alledged and in 1 Rolls 364. such a By-law to limit the number of Carrs was held void for there no Custom is alledged to ground it upon and then a By-law cannot restrain Trade Again 't is unreasonable that such as Trade in Fuel should not be permitted to bring home the Wood which they buy in the Country in their own Carts or to carry it out to their Customers for tho' they might limit the number of Carmen which in too great a multitude would be a Nusans and infest the Streets yet they cannot restrain a Man from using his own Carrs to carry his own Commodities As to the First The Court were of Opinion that it was not necessary to mention the Custom in the Plaint for 't is Lex loci and they take notice of their own Customs in their own Courts As in Norwich the Custom is that in Debt upon a Specialty the Debtor fatetur Scriptum sed petit quod inquiratur de debito and no Custom is set forth in the Record to warrant that But here in the Habeas Corpus they have returned the Custom which shews they had good cause to proceed upon their Plaint for it hath béen often resolved that Custom may create a Monopoly as the case in the Register is a Custom was that none should exercise the Trade of a Dier in Rippon without the Archbishop of Yorks License As to the Second the Court doubted whether this By-law could be adjudged reasonable or good because it would restrain the Woodmongers from bringing their Wood c. home in their own Carrs so that tho' they brought it in the Country Carts as far as the Liberties of the City they must then unload and put it in City Carrs which would be extreamly inconvenient and so it would be if they should send City Carrs to fetch it and tho' it might be reasonable to prohibit them carrying their Commodities out in their own Carrs that they might not have so great an opportunity to cheat in their Measures yet there could be no Colour to restrain them from bringing them in Et Adjornatur Cuts versus Pickering UPon a Trial at Bar one Baker who had been Solicitor for Pickering was produced as a Witness concerning the Razure of a Clause in a Will supposed to be done by Pickering The Court were moved Whether he could be Examined touching this because having been retained his Solicitor he should by reason of that be obliged to keep his Secrets But it
Vpon which it was Demurred Jones Sollicitor for the Defendant said Tho' the Bail may plead payment because the Condition of the Recognizance is in the Disjunctive viz. for rendring the Body or paying the Money yet the Principal cannot Also it ought to have been pleaded to be paid before a Capias ad satisfaciendum taken out for as it is it may be after the Recognizance forfeited As if the Death of the Principal be pleaded it must be alledged to be before the Capias ad satisfaciendum taken out But the Court held it to be well enough For if that matter be material 't is to come on the other side and ex gratia Curiae the Bail has time to save himself before the Return of the second Scire facias Anonymus IN an Assumpsit the Plaintiff Declared that on the 28th of June Discoursing with the Defendant about the Marriage of his Daughter the Defendant promised him That if he would hasten the Marriage and should have a Son within Twelve Months then next following he would give him an Hundred Pound And sets forth That he did Marry soon after and had a Son within 12 Months after the Marriage Vpon non Assumpsit pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Plaintiff had not set forth That he had a Son within the time for then next following shall be referred to the Day of the Discourse and not to the Marriage But the Court were of another Opinion and gave Judgment for the Plaintiff Crawfoot versus Dale IN an Action for Words it was thus There being a Discourse of the Plaintiffs Trade the Defendant said He was a cheating Knave and kept a false Debt-Book with which he cheated the Country After Verdict for the Plaintiff it was moved in Arrest of Judgment that to say a Tradesman was a Cheating Knave tho' there were a Colloquium of his Trade was not Actionable for that might be said because he sold too Dear and so cheated in the Price but to say that He sold bad Commodities is Actionable and to say He kept a False Book will not bear an Action for that may be unwittingly But the Court Resolved that the Words laid together were Actionable for Tradesmens Books are of much regard and sometimes given in Evidence Jennings versus Hunking IN an Action for saying He was Perjured the Declaration was laid in Devonshire The Defendant Iustified for that the Plaintiff made a false Affidavit at Launceston in Cornwal and Issue was taken upon that and tryed at the Assizes in Devonshire and moved that this was a Mis trial But it was Answered That the Statute of 17 Car. 2. cap. 8. helps all Mis-trials so as the Trial be in the County where the Action is brought And a Case was cited in this Court between Crosse and Winton in the 21 Car. 2. where an Action was brought for saying He stole Plate from Wadham Colledge in Oxford The Defendant Iustified that he did Steal there Vpon which there was Issue joyned and tryed in London where the Action was brought and it was held good And this Term a Case was moved in the Common Bench in a Writ of Covenant against Wise The Defendant pleaded a Feoffment of Lands in Oxfordshire and he Issue was non feoffavit and afterwards tryed in London where the Action was laid and the Opinion of the Court there was that the late Statute would help it The Court said It was within the words of the Act but as they conceived not within the meaning for they intended only so the Trial was in the County where the Issue did arise But in regard of the Resolutions before they would not stay Judgment Anonymus IN an Action upon the Case the Plaintiff sets forth that the Defendant malitiose crimen Feloniae ei imposuit and not mentioned any Felony in particular and yet held to be well enough Anonymus Trespass with a Continuando which was alledged for some time after the Term wherein the Action was brought and Damages given to 10 l It was moved in Arrest of Judgment that for part of thâ— Trespass it appears by the Plaintiffs own shewing that the Action was brought before the Plaintiff had Cause of Action And it was said That if the Bill were Filed at the End of the Term and the Trespass reached to some time within the Term the Filing should not relate so as to make it Insufficient But here it was carried to the 3d of July which the Court must see is out of the Term because they take Cognizance of the beginning and end of every Term. Anonymus IF an Audita Querela he brought before the Execution of a Judgment quia timet and it goes for the Defendant he shall execute his Principal Judgment But if it he brought after the party is in Execution and he be bailed out then the Judgment being once Executed there can be no after resort to that but the Defendant shall proceed upon the Record of the Audita Querela Fawkener versus Annis THe Priviledge of the Chancery was pleaded by way of Prescription and upon Demurrer it was held naught First Because it was not Concluded hoc paratus est verificare And Secondly No place alledged for they are Matters of Fact and Triable Anonymus IN an Action upon the Case the Plaintiff Declared That the Defendant the Tenants and Occupiers of such a parcel of Land adjoyning to the Plaintiffs have time out of Mind maintained such a Fence and that from the 23th of April to the 25th of May postea the Fence lay open and that una Equa of the Plaintiffs went through the Gap and fell into a Ditch the 28th of May submersa fuit Vpon Not Guilty pleaded and found for the Plaintiff Holt moved in Arrest of Judgment First That the Prescription is laid in Occupiers and not shewn their Estate and that hath been adjudged naught in the 1 Cro. 445. and the 2 Cro. 665. Curia 'T is true there have been Opinions both ways but 't is good thus laid for the Plaintiff is a Stranger and presumed ignorant of the Estate But otherwise it is if the Defendant had prescribed Secondly It was Objected That the Cause of Action is laid after the 25th of May and for ought appears the Fence might be good at that time tho' 't is said to be open till the 25th of May postea Sed non allocatur For 1. 'T is after a Verdict 2. 'T is said expresly that the Beast was lost in defectu fensuratum and so cannot be intended but that it was down at the time Anonymus AN Indictment of Forcible Entry upon the 8 H. 6 being removed hither by Certiorari a Restitution was prayed But to stop that it was said that the Indictment was traversed and a Plea that the party had had three years quiet possession according to the 31st of Eliz. and tho' Dyer 122 is That 't is in the
have admitted Wager of Law and therefore lies not against the Executor It was difficultly brought in that Debt should lye against the Executor upon a Surmize of a Devastavit by himself But that Point is now setled but no Reason to extend it further And he cited a Case where Debt was brought against A. Executor of B. Executor of C. who pleaded that he had not of the Goods of C. in his hands To which the Plaintiff Replied That B. had Wasted the Goods of C. to the value of the Debt demanded Vpon which Issue was joyned and found for the Plaintiff and he had Judgment to recover de bonis B. in the hands of A. But that Judgment was Reversed Anonymus IF A. Engages that B. shall pay for certain Goods that B. buys of C. this is good to charge him upon a Collateral Promise but not upon an Indebitat ' Assumpsit for it doth not create a Debt Anonymus IN an Information for a Riot it was doubted by the Court whether it were Local being a Criminal Cause And it was observed that divers Statutes in Queen Elizabeth and King James's time provided that Prosecutions upon Penal Laws should be in their proper Counties Which was an Argument that at the Common Law they might have been elsewhere Taylor 's Case AN Information Exhibited against him in the Crown Office for uttering of divers Blasphemous Expressions horrible to hear viz. That Jesus Christ was a Bastard a Whoremaster Religion was a Cheat and that he neither feared God the Devil or Man Being upon this Trial he acknowledged the speaking of the Words except the word Bastard and for the rest he pretended to mean them in another Sense than they ordinarily hear viz. Whoremaster i. e. That Christ was Master of the Whore of Babylon and such kind of Evasions for the rest But all the Words being proved by several Witnesses he was found Guilty And Hale said That such kind of wicked Blasphemous words were not only an Offence to God and Religion but a Crime against the Laws State and Government and therefore punishable able in this Court. For to say Religion is a Cheat is to dissolve all those Obligations whereby Civil Societies are preserved and that Christianity is parcel of the Laws of England and therefore to reproach the Christian Religion is to speak in Subversion of the Law Wherefore they gave Judgment upon him viz. To stand in the Pillory in Three several places and to pay One thousand Marks Fine and to find Sureties for his Good Behaviour during Life Walker versus Wakeman THe Case was An Estate which consisted of Land a Rectory c. was conveyed to the use of one for Life c. with a Power to Lett the Premisses or any part of them so as 50 l Rent was reserved for every Acre of Land The Tenant for Life Demised the Rectory reserving a Rent which Rectory consisted of Tythes only and whether this was within the Power was the Question Serjeant Pemberton Argued That this Lease is not warranted by the Power for a Construction is to be made upon the whole Clause and the latter Words that appoint the Reservation of the Rent shall explain the former and restrain the general Word Premisses to Land only for if it shall be extended further the Settlement which was in Consideration of a Marriage Portion is of no effect for the Rectory As in case it should de Demised reserving no Rent which it might be if not restrained to the latter words and they applied only to the Land But it was Resolved by the Court that the Lease of the Rectory was good for the last Clause being Affirmative shall not restrain the Generality of the former And this Resolution was chiefly grounded upon Cumberford's Case in the 2 Rolls 263. where a Conveyance was made to Vses of divers Mannors and Lands with a Power to the Cestuy que use for Life to make Leases of the Premisses or any part of them so that such Rent or more were reserved upon every Lease which was reserved before within the space of Two years and a Lease was made of part of the Lands which had not been Demised within Two years before And Resolved it was a good Lease and that thereupon any Rent might be reserved because the Power was General To Lease all and the restrictive Clause should only be applied to such Lands as had been demised within Two years before Termino Sanctae Trinitatis Anno 28 Car. II. In Banco Regis MEmorandum The last Term Sir Richard Rainsford was made Chief Justice Hale Chief Justice quitting it for infirmity of Body and Sir Thomas Jones was made one of the Justices of the Court of Kings Bench. Anonymus IN an Action upon the Case brought against the Defendant for that he did Ride an Horse into a place called Lincolns in Fields a place much frequented by the Kings Subjects and unapt for such purposes for the breaking and taming of him and that the Horse was so unruly that he broke from the Defendant and ran over the Plaintiff and grievously hurt him to his damage c. Vpon Not guilty pleaded and a Verdict for the Plaintiff It was moved by Sympson in Arrest of Judgment that here is no cause of Action for it appears by the Declaration that the mischief which happened was against the Defendants Will and so Damnum absque injuria and then not shewn what right the Kings Subjects had to walk there and if a man diggs a Pit in a Common into which one that has no right to come there falls in no Action lies in such Case Curia contra It was the Defendants fault to bring a Wild Horse into such a place where mischief might probably be done by reason of the Concourse of People Lately in this Court an Action was brought against a Butcher who had made an Ox run from his Stall and gored the Plaintiff and this was alledged in the Declaration to be in default of penning of him Wild said if a Man hath an unruly Horse in his Stable and leaves open the Stable Door whereby the Horse goes forth and does mischief an Action lies against the Master Twisden If one hath kept a tame Fox which getts loose and grows wild he that kept him before shall not answer for the damage the Fox doth after he hath lost him and he hath resumed his wild nature Vid. Hobarts Reports 134. The Case of Weaver and Ward Anonymus IN Trespass in an inferiour Court if the Defendant plead son frank Tenement to oust the Court of Jurisdiction It was said by Wild that they may enforce the Defendant to swear his Plea as in case of Foreign Plea negat Twisden and as in this Court where a Local justification in Trespass c. is pleaded the Defendant must swear it But the Court held no Indictment will lie for Perjury in such Oath no more than upon a Wager of Law Anonymus IN Trover the Hab. corpora
Tenant in Tail and levying of a Fine there is an Instantaneous Fee in him out of which the new Estate Tail is supposed to be created and that cannot hold bring derived out of a Fee subject to the Forfeiture by Relation but this Point was not touched by the Judges for that they were fully agreed upon the other Point Beasly's Case HE was taken in Execution taken a Recognizance of Bail and he made it appear to the Court that he never acknowledged the Recognizance but was personated by another and thereupon it was moved that the Bail might be vacated and he discharged as was done in Cottons Case 2 Cro. 256. But the Court said since 21 Jac. cap. 26. by which this Offence is made Felony without Clergy it is not convenient to vacate it until the Offender is convicted and so it was done 22 Car. 2. in Spicers Case Wherefore it was ordered that Beasly should bring the Money into Court an be let at large to prosecute the Offender Twisden said it must be tried in Middlesex tho' the Bayl was taken at a Judges Chamber in London because filed here and the Entry is venit coram Domingo Rege c. So it differs from a Recognizance acknowledged before my Lord Hobart upon 23 H. 8. at his Chamber and Recorded in Middlesex there Scire facias may be either in London or Middlesex Hob. rep If a false Bayl be acknowledged it is not Felony unless it be Filed and so held in Timberly's Case The King versus Humphrey's al. AN Indictment upon the Statute of Maintenance and one only found Guilty and it was moved in Arrest of Judgment that seeing but one was found Guilty it did not maintain the Indictment 2 Rolls 81. several were indicted for using of a Trade and said uterque eor ' usus fuit and held not good Sed non allocatur for that in that case in Rolls the using of the Trade by one cannot be an using by the other But this is an Offence that two may joyn in or it may be several as in a Trespass But then it was alledged that the Maintenance was in quodam placito in Cur ' coram Domino Rege pendent ' and not said where the Kings Bench Sate and this was held fatal Termino Sancti Hillarij Anno 28 29 Car. II. In Banco Regis Jay's Case A Mandamus to restore to his place of a Common Council Man in the Corporation of Eye in Suffolk The Return was that he was amoved for speaking of approbious words of one of the Aldermen viz. That he was a Knave and deserved to be posted for a Knave all over England And it was moved that the Return was insufficient for words are not good cause to remove a Man from his place in the Corporation To which it was said that this not a difranchising of him but only removing him from the Common Council as a person not fit to sit there To which Twisden said that his place there could no more be forfeited than his Freedom for he was chosen thereunto by the Custom of the place And Magna Charta is that a Man shall not be disseised de liberis consuetudinibus But he held that words might be a cause to turn out a Freeman as if they were that the Mayor or the like did burn the Charters of the Town or other words that related to the Duty of his place But in the Case at Bar the words do not appear to have any reference to the Corporation wherefore it was ordered that he should be restored The Court said that my Lord Hale held That Returns of this nature should be sworn tho' of late days it has not been used and that it was so done in Medlecot's Case in Cro. Abram versus Cunningham UPon a Special Verdict the Case appeared to be to this effect A. possessed of a Term makes B. Executor who makes three Executors and dies two of them dies and the Will of B. the Executor not being discovered Administration is granted cum Testamento annexo to D. who grants over the Term. The surviving Execcutor never intermeddles but so soon as he had Notice of the Will Refused before the Ordinary and the Point was Whether the grant of the Term in the mean time was good Saunders to maintain it Argued That to the making of an Executor besides the Will there was requisite that the Executor should assent and if the Executor refuses 't is as much as if there never had been any There is no Book which proves the Acts of an Administrator void where there is a Will and the Executor renounces Greysbrook and Foxe's Case in Plowden's Com. is that after Administration granted the Executor proved the Will And so in 7 E. 4. 14. in Dormer and Clerke's Case it was held that where there was an Executor who after refused and Administration committed the Administrator should have all the Rent belonging to the Term in Reversion which accrued after the death of the Testator If an Executor be a Debtor and refuses the Administrator may Sue him Which was denied by Twisden because a Personal Action once suspended is ever so Dyer 372. If one makes an Executor who dies and never proves the Will Administration shall be granted as upon a dying Intestate suppose an Executor de son tort had Judgment against him Shall not there be Execution upon a Term as Assets in his hands Twisden It hath been Doubted whether there could be an Executor de son tort of a Term or whether he were not a Disseisor And by the same Reason it may be granted in the present Case for at least the Administrator here is an Executor de son tort before the Refusal Levins contra Anciently Bona Intestati capi solebant in manus Regis as appears in Hensloe's Case in the 9 Co. And since the Power of the Ordinary hath been introduced it was only to grant Administration upon a dying Intestate 4 H. 7. Pl. 10. If the Ordinary cites the Executor to prove the Will and he Renounces 't is said he may grant Administration which implies that it cannot be before So 21 H. 8. cap. 5. is to grant Administration c. upon a dying Intestate or refusal of the Executor the Interest of the Executor commences before the Probat In 36 H. 6. 8. an Executor commanded one to take the Goods and after the Executor refused before the Ordinary who committed Administration and the Administrator Sued the person that took the Goods who Iustified by the Executor's Command and it was held good And a Relation shall never make an Act good which was void for defect of Power And the Court seemed strongly of that Opinion But Serjeant Pemberton desiring to Argue it the Court permitted him to speak to it the next Term. Et sic Adjornatur And afterwards it was Argued again and Judgment was given for the Defendant per totam Curiam Dunwell versus Bullocke IN an Action of
Anonymus IN Trespass for Fishing in his several Piscary and for taking 20 Bushells of Oysters there such a day continuando piscationem praedictam from the said day to the time of the Action brought Vpon Not guilty pleaded and a Verdict for the Plaintiff it was moved in Arrest of Judgment that the Fishing in the continuando was altogether incertain not expressing the quantity or quality of the Fishes as it ought according to Playters Case 5 Co. And of this Opinion were Wild and Jones But the Chief Justice inclined to think it well enough and said Playters Case had not been very well approved of of late years and that is that 't is necessary to express the kind of the Fishes which has béen held since needless and he knew not why it might not be as well as an indebitatus Assumpsit pro diversis mercinoniis But the other Judges said tho' it was reason it should be as the Chief Justice said yet they knew not how to depart from the Authorities in the Point and that Playters Case had remained mishaken Sed Adjornatur Anonymus IN Debt for Rent against an Assignee of a Lessee The Defendant pleaded That before the Action brought he assigned over to J. S. and thereof gave notice to the Plaintiff The Plaintiff replied That he still kept the Possession and had made the Assignment by fraud to disappoint him c. To which it was demurred for it was said that fraud was not averrable in this case neither by the Common Law nor any Statute But the Court inclined that it might for if such a practice should obtain the Lessor might be hindred perpetually of his Action of Debt by making Assignments to persons unknown An Executor confesses a Judgment which is lawful for him to do yet this may be avereed to be entred or kept on foot by fraud and that by the Comman Law which hates all frauds Sed Adjornatur Postea Anonymus A Prohibition was prayed to the Councel of the Marches for that they proceeded upon an English Bill there against the Defendant supposing that he had promised upon a Consideration to pay the Debt of a Stranger because 't is in the nature of an Action upon the Case and consists meerly in Damages And altho' many Presidents were shewn of their Proceeding in such of Actions and the Statute of 34 H. 8. cap. 26. that they should determin such Cases as were heretofore accustomed and used c. as should be assigned to them by the Kings Majesty and it was pretended that this was within their Instructions yet the Court granted the Prohibition For where Damages are uncertain they cannot be set in a Court of Equity but by a Jury In Debt because the demand is certain the Courts here have sometimes assessed Damages without a Writ of Enquiry but never in Trespass or Actions upon the Case which lie wholly in Damages Anonymus AN Habeas Corpus The Return was read and spoken to and the Prisoner ordered to be remanded Twisden said the Return should have been first Filed and the Prisoner committed to the Marshalsey for otherwise the Court have no power over him Vid. Mo. 839. and he cited 1 H. 7. Humphry Staffords Case who being brought to the Bar upon an Habeas Corpus by the Lieutenant of the Tower was committed to the Marshalsey and afterwards remanded to the Tower but the other Judges differed as to the Commitment and said it was not necessary to keep the Prisoner in the Marshalsey until the Matter was determined but he might be sent from time to time to the same Prison and brought up by Rule of Court until he is either Bailed Discharged or Remanded And so they said it was lately done in the Earl of Shaftsbury's Case Gilmore versus .... UPon a Special Verdict the Point was whether a Promise made upon such Consideration as by the Act of 29 Car. 2. to prevent Frauds and Perjury's is requisite to be in Writing signed by the Party to be charged therewith being made before the 24 of June last but the Action brought after be within the restraint of the Act which saith That from and after the 24 of June no Action shall be brought upon such Promise c. And it was resolved that the Case was not within the Act which did not extend to any Promise made before the 24 of June The King versus Sir Thomas Fanshaw SIr Thomas Fanshaw and others were indicted for not Repairing of a Bridge which it was alledged they were bound to Repair Ratione Tenurae of such Lands Sir Thomas Fanshaw pleaded That he was not bound to Repair Ratione Tenurae and found that he was In Arrest of Judgment it was said that the Verdict was not pursuant to the Indictment for therein 't is alledged that Sir Thomas Fanshaw and others were bound to Repair Ratione Tenurae and the Verdict is that Sir Thomas Fanshaw Ratione Tenurae c. Reparare debet Parietem praedict ' modo forma prout per Indictamentum praedict ' supponitur Sed non allocatur for each of them may be bound to Repair for their respective Lands and they must get Contribution by the Writ de onerand ' pro rata portione Secondly It was said that 't is Ratione Tenurae and not said Suae and this was said to be naught Noy's Rep. 93. Sed non allocatur for the Presidents are generally so Parkers Case A Mandamus to restore an Attorney to his liberty of practising in a Court within the County Palatine of Chester was Returned That the Court was holden before the Chamberlain Vice-Chamberlain Baron or the Deputy of the Baron and that at a Court before the Barons Deputy he spoke contemptuous words of him whereupon he suspended him from his Practice quod non aliter amotus fuit Vpon exceptions offered to the Return The Court held it a good cause of Suspension and ordered a Submission to him that received the affront in open Court before that he should be restored Anonymus THe Case upon the Averment of Fraud upon an Assignment by the Assignee of a Lessee was now moved again and by Twisden Wild and Jones against the Opinion of Scroggs Chief Justice Iudgment was given for the Plaintiff viz. That Fraud in such Case might be averred Ante. Anonymus IN Ejectment it was debated whether Confession of Lease Entry and Ouster would serve where there ought to have been an actual Entry upon the Title as the in case of a Condition broken or the like And the Opinion of the Court inclined that it would not tho' my Lord Hale was said to be of another Opinion Ante. Termino Sancti Michaelis Anno 30 Car. II. In Banco Regis Dutton versus Poole CUjus principium ante Michael ' 29 Car. 2. It was now moved again to stay the Iudgment by Sanders who argued that the Action could not be maintained by the Plaintiff for the Father whose the Wood was could only bring it for
feeds to their damage it will be a Surcharge and an Action upon the Case will lie against him The Lord cannot improve but he must leave them sufficent and there can be no reason why the Owner should not have the Surplusage if any be I know they will cite an Authority against me in the Case between Webb and Littleburgh which was in C. B. 1654. There I confess the Declaration was grounded upon a Prescription much like to this and the Plaintiff had a Verdict and the Court would not arrest Iudgment upon it The Answer that I must give to that Case is grounded upon the difference between a Demurrer and a Verdict The Court may intend that after a Verdict which may help it for I allow an exclusion of the Lord upon a Special Case disclosed in pleading and that Special Matter may be supplied by the Verdict Besides I must observe that it was a Case of small consequence that concerned the Lord only for his Costs for he hath enjoyed his feeding against that Verdict ever since I can say it upon my own knowledge for I know the Parties and know the Place it was at Elinswell near Bury St. Edmonds in Suffolk The Iudges listen to Exceptions after a Verdict but will give Judgment if there be any possibility to maintain it I may add that this was a Popular Times when all things tended to the licentiousness of the Common People I shall Conclude praying Judgment against this Prescription for these Reasons It is a new and unheard of way of Pleading and against the Rule of Law joyning Freehold Tenants in the generalty which have no relation one to another and annexing an entire Interest to several Estates and mixing Prescription and Custom which are of contrary Natures and are great Absurdities It is against Reason to oust the Owner of all the feeding which for ought appears is all the Profits without any Special Matter or Recompence appearing in Pleading There is great inconvenience in admitting of such a Prescription new Inventions bringing unknown Consequences No inconvenience in ousting Tenants of this Prescription seeing that they claim the same Usage the ordinary way and the Lord can do them no wrong either by feeding or improvement In this Case the Court of Common-Pleas had been divided in Opinion upon the Matter in Law as appears by Vaughans Reports and therefore Sir Henry North thought not fit to wave the Matter of Law in the Kings-Bench altho' he had so good a Case upon the Fact that if it had been no prejudice he would joyn Issue and try the truth of this Prescription at the Bar whereupon the Demurrer was by consent waved and the Cause tried at the Bar and the Verdict passed for Sir Henry North with the approbation of the whole Court Afterwards another Action was brought to trial in the Exchequer at the Bar and it appearing to the Court that there had been Proposals towards an Agreement a Juror was withdrawn and my Lord Chief Baron Hale gave the Tenants advice to comply with this saying Redime te captum quam queas minimo So that the Matter of Law was never adjudged against Sir Henry North but the Matter of Fact tried for him and the main Question upon the Act of Level never came in Question which may extend to this great Waste altho' both the other Points were against Sir Henry North. Afterwards there was another Action brought to trial in the Exchequer and after a full evidence of about 4 or 5 hours the Plaintiff not daring to stand the Verdict was nonsuited THE CASE OF Sir Robert Atkyns AGAINST HOLFORD CLARE Under-sheriff of the County of Gloucester TERMINO Sancti Hillarij Anno 22 23 Car. II. In Scaccario AN Action upon the Case was brought by the Plaintiff Vid. Co. Entr. 439. a Quo Warranto brought for these Hundreds setting forth That he was seised of the Seven Hundreds of Crochon Bright Reppesgate Bradley c. in the County of Gloucester and had Return and Execution of Writs there That the Defendant knowing of it did Execute several Writs there to the Plaintiffs damage c. Vpon Not Guilty pleaded Issue is taken and this Special Verdict is found viz. They find the Patent of 11 May 5 Johannis whereby the King restores to the Abbot and Convent of Canons Regular in Cirencester certain Lands granted to them by his Brother Richard the First and also grants That no Sheriff of Gloucester or his Bayliff do intromit in aliquo within the Seven Hundreds except for Pleas of the Crown and Summons which the Abbot c. should receive from the hands of the Sheriffs and execute They find the Patent of 20 Decembris 17 E. 3. wherein the King reciting that Richard the First by Patent granted to this Abbot and Convent the Mannor of Cirencester and the Seven Hundreds and the Return of Writs in them that thereby they had used and enjoyed Retorna Brevium tanquam pertinentia ad Septem Hundred ' praedict ' Reciting also that by a Presentment made it was seised into the Chancery and that He Edward the Third for a Fine of 300 l grants that they should hold the Mannor Hundreds Vills c. quod haberent in Villis Hundredis praedictis c. absque impedimento retorna Brevium Infangthief c. tanquam pertinent ' Hundredis praedictis c. of the King and his Successors c. and confirms the Patent of King John They find that the Abbot c. were seised prout Lex postulat till 4 Febr. 27 H. 8. when the Monastery was dissolved and all came to the Crown They find the Statute for vesting of these Lands c. belonging to the Monastery in the King and the Statute of 32 H. 8. cap. 20. whereby it is Enacted That all Liberties c. which the late Owners of Monasteries had used c. shall be revived and be really and actually in the King his Heirs c. and shall be in the Rule Order Survey and Governance of the Court of Augmentations and that the same Liberties c. shall be used and exercised by such Stewards Bayliffs c. as the King his Heirs c. shall name and appoint c. and that the said Stewards Bayliffs c. shall be attendant and obedient to all the King's Courts for all Returns of Writs c. as the Officers of the late Owners should have been c. and that no Sheriff Under-Sheriff c. should intromit meddle in with or upon the Premisses otherwise or for other cause than they lawfully might have done before the same Premisses came to the possession of the King They find that Edward the Sixth being seised by descent from Henry the Eight Anno primo of his Reign per Lit ' Patent ' ex gratia advisamento Concilii sui dedit concessit cuidam Tho. Seymour Mil ' Dom ' Seymour de Sudley omnia illa Hundreda de Crochen c. nuper Monasterio
Heir in England or to have one My third and last Reason is indeed more general tho' not so conclusive as the two former were upon the particular Reason of the Case tho' not altogether to be neglected viz. The Law of England which is the only ground and must be the only measure of the incapacity of an Alien and of those consequential results that arise from it hath been always very gentle in the construction of the disability and rather contracting than extending it so severely For Instance The Statute de natis ultra Mare 25 E. 3. declares that the Issue born beyond Sea of an English Man upon an English Woman shall be a Denizen yet the construction hath been tho' an English Merchant marries a Foreigner and hath Issue by her beyond the Sea that Issue is a natural born Subject In 16 Cro. Car. in the Dutchy Bacons Case per omnes Justic ' Angl ' And accordingly it hath been more than once Resolved in my Remembrance Pround's Case of Rent The Case of the Postnati commonly called Calvin's Case the Report is grounded upon this gentle Interpretation of the Law tho' there were very witty Reasons urged to the contrary and surely if ever there were reason for a gentle Construction even in the Case in question it concerns us to be guided by such an Interpretation since the Vnion of the two Kingdoms by which many perthance very Considerable and Noble Families of a Scottish Extract may be concerned in the consequence of this Question both in England and Ireland that enjoy their Inheritances in peace I spare to mention particulars So far therefore as the parallel Cases of Attainder warrant this extent of this Ability I shall not dispute but further than that I dare not extend Now as touching the Authorities that favour my Opinion I shall not mention them because they have been fully Repeated and the later Authorities in this very Case are not in my Iudgment to be neglected Touching the Case of Godfrey and Dixon it is true it doth differ from the Case in question and in that the Father was made a Denizen and then had Issue a younger Son who inherited the elder Son an Alien born but Naturalized after the death of his Father yet there is to be observed in that Case either the Naturalization of the elder Son relates to his Birth or relates only to the Time of his Naturalization whether it did relate or not depends upon the words of the Act of Naturalization which I have not seen If it did relate the Cause in effect will be no more but an Alien hath Issue a Natural born Son for so he is as I have Argued by his Naturalization and then is made a Denizen and hath Issue and dies the elder Son purchaseth Lands and dies without Issue the younger Son shall inherit the elder should not have inherited his Father by reason of the Incapacity of the Father But it doth not relate further than the Time of his Naturalization which was after the time of the Death of his Father and consequently he could not divest the Heirship of his younger Brother yet if he purchaseth and dies without Issue his younger Brother shall inherit him tho' there was never Inheritable Blood between the elder Son and his Father so much as in fiction or relation Vpon the whole Case I conclude First That there be two Brochers Natural born in England the Sons of an Alien the one shall inherit the other Secondly That the Naturalization puts them in the same Condition as if born here tho' it does not more Thirdly That John the Son of George stands in the same Condition of inheriting his Vncle the Earl as George should have done had he survived the Earl Fourthly But if the Disability of Robert the Father had disabled the Brothers to have inherited one the other the Naturalization of the Earl or George had not removed that Disability Fifthly But no such Disability of the Father doth disable the Brother George to inherit the Earl it neither doth Consequentially disable John the Son of George to inherit the Earl Consequently as to the Point referred to our Iudgment John the Son of George is Inheritable to the Land of John his Vncle. The End of the First Volume A TABLE OF THE Principal Points Argued and Resolved in the First PART OF THESE REPORTS A. Abatement See Pleadings IN the Ecclesiastical Court a Suit does not abate by the Death of either Party Pag. 134 A Baronet is Sued by the Addition of Knight and Baronet the Action shall abate 154 In all Actions where one Plaintiff of several Dyes the Writ shall abate save in an Action brought by an Executor 235 Acceptance Where Acceptance of Rent from the Assignee shall discharge the Lessee 99 Action See Bail Whether an Action of Debt qui tam upon the Stat. 5 El. c. 4. lies in B. R. 8 Action brought de uxore abducta and concludes contra forman Statuti where there is no Statute in the case yet good 104 Action for a Nusance in stopping of the Lights of his House p. 139 237 248 Action upon the Stat. 13 Car. 2. by one Bookseller against another for Printing his Coppy p. 253 Where the Matter consists of two parts in several Counties the Plaintiff may bring his Action in which he pleases p. 344 Where several Causes may be joyned in one Action and where not 365 366 Action upon the Case See Jurisdiction Way In the Nature of Conspiracy a-against three for Arresting without Cause and only one found Guilty 12 Such an Action lies against one p. 19 Lies for a Justice of Peace against one who Indicts him for Matters in the Execution of his Office p. 23 25 For taking his Wife from him brought against the Womans Father p. 37 Lies not against a Justice of Peace for causing one to be Indicted who was after accquitted 47 Where it lies for Suing one in the Ecclesiastical Court and where not 86 For erecting a Market 7 miles off 98 Upon the Custom of Merchants for a Bill of Exchange accepted 152 For not Grinding at his Mill 167 Where it lies against a Master of a Ship for Goods lost out of the same 138 190 191 Against the Mayor of L. for not Granting a Poll upon a doubtful Election 206 For not repairing a Fence 264 Against a Taylor for Spoiling his Coat in making 268 For Riding over the Plaintiff with an unruly Horse 295 Where Action lies for Defaming the Wife whereby the Husband loses his Customers 348 Action upon the Case For Slander You are a Forger of Bonds a Publisher of Forgery and Sue upon forged Bonds These last Words not Actionable 3 She was with Child by J. S. whereof she miscarried 4 Thou hast received stoln Goods and knew they were stolen J. S. Stole them and thou wert Partner with her 18 Of a Midwife She is an Ignorant Woman and of small Practice and very unfortunate in her Way there
Usage in England is that the Archbishop is Guardian of the Spiritualties in the Suffragan Diocess 225 234 Blasphemy Blasphemous Words not only an Offence to God and Religion but a Crime against the Laws State and Government and Christianity is parcel of the Laws of England 293 Bond. See Obligation What Bond a Gaoler may not take of his Prisoner 237 The Condition of a Bond or Covenant may in part be against the Common Law and stand good in the other part ibid. C. Certiorari PRisoners cannot be removed by Certiorari from a Country Gaol till the Indictment be found below 63 Lies to remove an Indictment of Manslaughter out of Wales to be Tryed in the next English County 93 So of Murder 146 Challenge What is good Cause and where Cause shall be shewn 309 Where the Kings Council shall shew Cause ibid Chancery Tryals directed out of Chancery the Course 66 Answer in a Court of Equity Evidence at Law against the Defendant 212 Churchwardens Bring Account against their Predecessor for a Bell whether it shall be said to be de bonis Ecclesiae or de bonis Parochianorum 89 Whether they may refuse to take the Oath to present and how to proceed 114. 127 General VVords to present Offenders do not extend to the Church-warden himself but relate only to the rest of the Parish 127 May make Rates themselves if the Parishioners are Summoned and refuse to meet 367 Common See Pasture Where Common is claimed for Beasts Levant and Couchant on certain Land no other Beasts ought to be put on the Common but those of the Tenant of the Land to which it is appendant or those which he takes to compester his Land 18 A Man cannot prescribe for Common by a Prescripeion that is unreasonable 21 Common apurtenent for Beasts Levant and Couchant how pleaded 54 Common in another Mans Soyl how to be claimed 383 A Commoner cannot prescribe to exclude his Lord 394 The Comencement of Commons 395 In a Title of Common for Beasts Levant and Couchant the Levancy and Couchancy is not Traversable 385. Nor material among Commoners 397 Condition What Words make a Condition what a Limitation and what Conditional Limitation 202 203 Conspiracy If one be acquitted in an Action of Conspiracy the other cannot be guilty but where one is found guilty and the other comes not in upon Process or Dyes yet Judgment shall be against the other 238 Indictment lies for Conspiring to charge with a Bastard Child and thereby also to bring him to disgrace 305 Constable See Attorney Tenant in Antient Demesne not excused from serving Constable 344 Contingency See Grant Remainder Conveyance Contingent Estates what and how destroyed 215 334 Whether a Descent in Tayl prevents a Contingent Remainder 306 Contract A Verbal Contract cannot create a Penalty to oblige the Heir 76 Conveyance The Modern VVays of Conveyancing to prevent the disappointing Contingent Estates 189 VVhere a Conveyance is good before Inrolment and where not 360 Difference between a Conveyance at Common Law and a Conveyance to Uses 373 378 Copyhold See Pasture Admittance of Tenant for years is an Admittance of him in the Remainder 260 VVether Copyholder for Life in Reversion after an Estate for Life in being can Surrender to a Lord Disseizor 359 Coroner VVhere a Melius Inquirendum shall be granted after a Coroners Inquisition super visum Corporis 182 A Coroners Inquisition that finds a person Felo de se non Compos may be Traversed 278. And quasht 352 Corporation VVhat they can do without a Deed and what not 47 48 Costs See Assault and Battery Treble Costs in an Action on the Stat. 8 H. 6. of Forcible Entry 22 Costs where payable in a VVrit of Error 88 VVhere payable by an Executor 92. and Administrator 110 116 If an Executor be sued and the Plaintiff Non-suit he shall have Costs but an Executor Plaintiff shall pay no Costs upon a Non-suit 94 Costs and Damages not to be given in an Action Popular 133 Costs de Incremento 337 362 Covenant VVhat Collateral matters shall be implied upon a Covenant 26 44 45 Thô a Covenant be made only to a Man his Heirs and Assigns yet if a Breach be in his Life time his Executors may bring the Action for Damages 176 VVhere a Covenant shall bind notwithstanding a subsequent Act of Parliament 175 176 Covenant with an Intended VVife whether discharged by subsequent Marriage 344 Courts See Jurisdiction Inferiour Courts cannot make a Continuance ad Proximam Curiam but always to a Day certain 181 Customs See Prescription To maintain a Common Key for the unlading of Goods and therefore every Vessel passing by the said Key to pay a certain Sum a void Custom as to those Vessels which did not unlade at the said Key 71 A Custom that Lands shall descend always to the Heirs Males tho' of the Collateral Line Good 88 D. Damages See Costs NOne but the Courts at Westminster can increase Damages upon View 353 Date See Lease Demurrer The old way of Demurring at the the Bar 240 Devastavit See Executor Return Devise Whether a Termor may Devise in Remainder and limit a Possibility upon a Possibility 79 To Dr. V. during his Exile from his Country what Estate passes 325 Divers parcels of Lands being devised whether these words the said Lands pass all the parcels or only the last mentioned 368 A Devise of Lands to two equally to be divided makes them Tenents in Common 376 Discents The various Kinds of Discents or Hereditary Successions and the Rules whereby they are to be governed 414 The Discent from a Brother to a Brother thô it be a Collateral Discent yet it is an immediate Discent 423. And therefore two Brothers Born in England shall Inherit one the other tho' the Father be an Alien 429. Secus in Cases of Attainder 416 417 If the Son purchase and have no Kindred on his Fathers side but an Alien his Estate shall discend to the Heir on the part of his Mother 426 Distress Whether in Distress for Rent Horses may be severed from a Cart 36 An Information lies not against a Landlord for taking excessive Distress of his Tenents 104 Hindring the Carrying off a Distress a provocation to make killing no more than Homicide 216 Dower The regular proceedings therein 60 Whether a Suit for Dower may be commenced by Plaint in an Inferiour Court without special Custom 267 E. Ecclesiastical Persons PRivilidges from Offices 105 Death of a Parson c. doth not make such a Non-residence as shall avoid a Lease 245 What Leases they may make and what not 245 246 Clergy Men are liable to all publick charges imposed by Act of Parliament in particular for reparation of the Highways 273 Of the Induction of Clerks by whom to be made 309 319 Election Where a thing depends upon Election what course is to be observed 271 Entry Where in Ejectment actual Entry is necessary 332 Error See Executors To reverse a Judgment
So of Perjury and Nusance 370 Indictment before Justices of Peace for a Non feasance ought not to conclude contra pacem 108 111 For suffering an Escape 169 Quasht for Incertainty 305 306 No Copy of the Indictment allowed in capital Crimes yet the Mirror calls it abusion 354 For Perjury extrajudicial 370 Infant See Executor A Condition and Deed obliges Infants as much as others 200 205 Intent and Intendment See Uses Verdict Ioyntenant Two Joyntenants one Grants bargains and sells all his Estate and Interest the to other this amounts to a Release and must be so pleaded 78 A Devise to two equally to be divided between them and to the Survivors of them makes a Joyntenancy upon the import of the last Words 216 227 Issue A Lease is made to commence after the Death of J. S. without Issue J. S. hath Issue and dyes and then the Issue dyes without Issue the Lease commences For Issue being nomen collectivum when ever the Issue fails the Term commences 229 Iudgment Obtained by Forgery vacated 78 So if procured by Fraud and deceipt 49 Arrested where there appears no Cause of Action 310 Warrant to confess a Judgment the Party dyes before it be confest this is a Countermand 310 Irisdictition See Sewers Judgment in an Inferiour Court reverst for want of Jurisdiction 28 Every Subject has the Liberty of removing his Suit into a Superiour Court 46 If there be several Contracts at several times for several Sums each under 40 s and altogether amount to a Sum sufficient to entitle the Superiour Court they shall be there put in Suit and not in a Court that is not of Record 65 73 In Assumpsit brought in an Inferior Court the performance of the Promise must be as well within the Jurisdiction as the Promise it self 72 Inferiour Courts ought not to award a Capias but upon Summons first returned and tho' a fault in the Process is aided by appearance yet an Action of false Imprisonment lies 220 249 Where infra Jurisdictionem is necessary to be set forth and alledged 240 243 The Liberty of the Subject is infringed by bringing him within a private Jurisdiction when the matter arises out of it 333 Action on the Case for the same 369 Iury. Where a Juror may be withdrawn 28 In case of Life and Member if the Jury cannot agree before the Judges of Assizes depart they are to be carried after them in Carts 97 Twelve necessary on a Writ of Enquiry as well as in a Venire 113 Where the Iury's eating or drinking at the charge of either Party shall avoid their Verdict and what other Actions shall be sufficient Cause to avoid it 125 Whether the Statutes requiring Jurymen to have so much Freehold extend to Corporate Towns 366 K. King THE King in bringing an Action may choose his County or wave that which he had chosen before as he may wave his Demurrer and joyn Issue 17 King and Council may disfranchise any Member of a Corporation The Walls of N. were ordered to be pulled down by King and Council à fortiori an Alderman there may be displaced upon just Cause 20 The King may stay the Proceedings and the Attorney General Enter a noli prosequi after the Jury are returned 33 Lords Spiritual and Temporal and Commons the three Estates and the King Head of all 325 Knight See Abatement L. Lancaster OF the Dutchy Court of Lancaster and its Jurisdiction 155 infra Latitat A Man may take out a Latitat before the Money is due yet the Party must not be Arrested upon it before 28 Lease See Recovery No reason to favour Long Leases By the antient Law a Lease for about 40 years was void and they are never without suspicion of Fraud 58 A Lease made to begin from the End of a Lease misrecited shall commence presently 83 A Lease without any Date specified or an impossible Date as from the 40th of September shall commence presently 137 What Act determins a Lease at Will 247 Leet The Kings Court granted to Lords of Mannours as derived out of the Town 26 Presentments may be there for the King and the Lord of the Mannor ibid. Fines in Leets where they may bedistrained for and where not 105 Presentment at a Leet quasht where the Court appears to be held above a Month after Michaelmas 107 Difference between the Stewardship of a Leet and a Court Baron 153 Libel The having a Libel in ones Lodging and not delivering it to a Magistrate was only punishable in the Star-Chamber unless the Party Maliciously published it 31 Liberties Of Returna Brevium 405. Their Vexation and Inconveniency 412 Liberties belonging to Monasteries came to the King on their Dissolution and that without the Aid of the Statute 32 H. 8. chap. 20 407 Limitations Whether the Statute of Limitations extends to bar a Promise between Merchants relating to Trade 90 Livery Livery within view where good and where not 186 London By the Custom of London a Debtor may be Arrested before the Mony is due to make him find Sureties 29 What Debts shall be Attachable by Foreign Attachments according to the Custom of London 112 113 Custom to commit Offenders for obstinately and contemptuously refusing to obey the Order of the Court of Aldermen Good 115 Whether they may Imprison a Stranger for Marrying their Orphan without License 178 Their By-Law to restrain the number of Carts Good 21 196 Of their Duty of Scavage 298 Custom to Disfranchise and commit a Freeman for speaking opprobrious Words of an Alderman Not good 327 Of their Duty of Water Baylage 351 M. Mandamus TO restore an Alderman 19 Lies not to restore a Town Clark where the Corporation have power to Grant the Office Durante beneplacito 77 82. So of a Recorder 342 Lies to admit a Deputy into an Office where the Office may be executed by Deputy 111 To swear a Churchwarden 115 267 To restore a Sexton 143 153 Lies for an Office but not for a Service ibid. Lies to an Inferiour Court to cause them to give Judgment according to a Statute 188 To restore a Common Council Man in a Corporation 302 To restore an Attorney in an Inferiour Court 331 To the Ecclesiastical Court to prove a Will 335 Misnomer When and how amendable 13 Name mistaken in the Issue if right before in the Record amendable 25 Monasteries See Liberties Pensions out of Monastery Lands where to be sued for 120 N. Naturalization OF Naturalization and Denization their General Effects and Operation 418 419 Notice Whether necessary upon a Counter bond to save harmless 36 37 Upon an Award 93 In what Cases necessary and where not 200 201 Nusance See Action Whether the erecting of a Glass-house be a Nusance 26 A Rope-Dancers Booth in the Street a Nusance and a Writ to the Sheriff awarded to prostrate the Bulding 169 O. Oath OF the Marshal of the King's Bench 65 No exception to the Oath of Allegiance that the words of
the Statute are to King James and in administring the Oath King Charles is named 171 172 The Ecclesiastical Court may make Defendants answer upon Oath as the Chancery doth 339 Obligation If two be bound joyntly and one be sued he cannot demur unless he aver the other is living And if there be two Obligees one cannot sue unless he avers the other is dead 34 A Release of one Joint Obligee of all Actions c. upon his own account does not discharge the Obligation 35 I do acknowledge to E. H. by me 20 l upon demand for doing the Work in my Garden Adjudged upon Demurrer to be a good Bond 238 Office and Officer Whether acceptance of a second Grant of an Office be a surrender of the first 297 An Act begun by one Officer and left imperfect what remains for his Successor 319 320. Outlawry Reverst for want of the Words pro Comitatu and why 108 P. Pardon See Witness WHere good without mentioning the Indictment 207 Parliament See Error The Three Estates See King Pasture Custom for Copyholders to have sole Feeding in a Certain Waste it is not needful to alledge that the Beasts were Levant and Couchant Here also a Copyholder may license others without Deed to put on their Beasts 165 Peace See Indictments Ac. Case Formality of Words where necessary in the Proceedings of Justices of Peace 39 Justices of Peace their Proceedings in relation to Bastard Children 48 59 210 310 336 Upon a Forcible Entry 308 Order of Sessions final in relation to a settlement of the Poor 310 King's Bench may judge of Fines imposed at Sessions and mitigate them 336 Perjury See Indictment One gave Evidence at a Trial and afterwards made Affidavit that he was perjured and suborn'd for which Affidavit an Information of Perjury was exhibited against him and he found guilty of Perjury in swearing he was perjured 182 Pleading See Escape Trespass In Debt upon Obligation the Defendant pleads that he delivered it as an Escrow plea nought 9 Where the Defendant pleads in Abatement and the Plaintiff Demurs if it be adjudged against the Defendant it shall be quod respondeat ulterius But if any thing be alledged in Abatement where upon Issue joyned it goes for the Plaintiff there he shall have Judgment to recover his Debt 22 In Actions laid by way of Reciprocal Promise there needs no Averment of Performance 41 178 Double Plea what 48 272 Trespass quare Arbores succidit Declaration insufficient because not exprest what kind of Trees 53 The like of Fishes 272 329 In Battery absque hoc quod moderate castigavit no direct Traverse to the Defendants Justification 70. Yet good after a Verdict ibid. A Plea in Abatement shall not be admitted after Imparlance 76 136 184. Exception 236 A Traverse designed to bring a Colateral matter in question not allowed 77 Executor pleads plene Administravit the Plaintiff confesseth the Plea and prays Judgment de bonis Testatoris quae in futuro ad manus defendentis devenerint 94 Where the Plaintiff denies what the Defendant affirms whether he ought to traverse or conclude to the Country 101 In Trespass where the Defendant claims a Way what Justification is sufficient what not 13 Incertainty in the Declaration or Plea where naught 106 114 120 278. What shall be said a Departure in Pleading what not 121 Where one Declares against one upon a Deed and it appears that another was bound with him it shall not be intended that the other sealed unless averr'd on the Defendants side 136 137 Deed delivered as an Escrow how to be pleaded 210 An apt Issue is not formed without an Affirmative and a Negative 213 To declare that a Bishop was seized in fee and not say in Jure Episcopatus not binds Successor 223 In Debt for Rent semper paratus is no good plea without saying quod obtulit 322 The effect of an Innuendo 337 The Statute for discharge of poor Prisoners how to be pleaded 356 Several Freeholders cannot joyn or be joyned in a Prescription to claim an Intire Interest in another mans Soyl 384. Nor can Freeholders and Copyholders joyn 390 Powers See Rocovery Of Power to Lease where well persued 294 340 Of Power of Revocation See Revocation Whether the Power of Revocation is extinguished by a Fine 368 371 Prescription See Appurtenant Common Grant The Nature and Rules of Prescription 386 Diversity between Prescription and Custom 389 The Owner of the Soyl can by no Prescription or Custom be excluded out of his own Soyl at all times of the year 390. But he may be excluded for a certain time and as to some kind of Profits 391 Prohibition Where it lies to the Admiralty 1 146 To the Ecclesiastical Court where a Parson sues for calling him Knave 2 Whether it lies where a Bishop sues for a Pension in his own Court 3 Whether it lies upon Suggestion that the Proprietors and Occupiers of such a Mannor or any parcel thereof pay a Groat to the Parson for Herbage-Tythes ibid. Lies for citing a man to answer in the Ecclesiastical Court and not delivering a Coppy of the Articles 5. And if the Party be excommunicate a Prohibition with a Mandamus to absolve him ibid. 252 Not lies to the Ecclesiastical Court for calling Impudent Whore 7. Or Whore and Bawd 61 220. Denied to the Ecclesiastical Court for calling Old Theif and Old Whore 10. Secus in London 343 352 In Prohibition on a Suit for Tythes what Suggestion is to be proved within six months 107 To the Ecclesiastical Court to stay a Suit there for Apparators Fees Suggesting there were no such Fees due by Custom 165 To Woodstreet Compter London for refusing to admit a Plea to their Jurisdiction before Imparlance 180 The Defendant in the Ecclesiastical Court pleads that the Tythes belong to another which Plea is refused Prohibition lies 248 335 Granted to the Ecclesiastical Court where Custom and Prescription comes in question tho the Principal Cause belongs properly to that Court as Church-Wardens Rates Tythes Mortuaries 274 Whether it lies to the Ecclesiastical Court for refusing to admit a Proof by one Witness 291 No Precedent for a Prohibition quia timet 313 To the Council of the Marches 330 Proof See Record Where Proof is to be made upon a Writ of Enquiry and where not 347 Q. Queen A Reservation to the Queen of England does not exclude a Queen Dowager 151 One who hath been a Queen not properly called nuper Regina in her Life time 152 Qui tam. See Error Action Judgment arrested because Issue was joyned only on behalf of the Informer and not also for the King 122 Quo Warranto Against certain Persons of the City of Worcester claiming to be Aldermen 366 R. Record If a Record be lost it may be proved to Jury by Testimony 257 Recorder See Mandamus What Causes may be sufficient to remove a Recorder 144 145 Recovery Where a Fine is Levyed to Lessee for years with an Intent
Place assigned from whence the Venue should have come 348 350 No likelyhood of an Indifferent Tryal cause to change the Venue 365 Verdict See Assumpsit What Errors and Omissions are ayded after Verdict 34 100 108 109 114 126 Where a Special Verdict refers one Special Point to the Judgment of the Court all other matters shall be intended 118 After Verdict the Court shall admit any Intendment to make the Case good 123 Want of an averment of Levancy and Couchancy aided by a Verdict 165 Vse See Trust What Words and Considerations shall raise a Use 138 140 141 The use of a Fine or Recovery may be declared by a subsequent Deed 368 In Cases of Uses the Intention of the Parties ought to be pursued 373 374 378 Vsury The Statute against Usury expounded strictly in regard of Broakers 38 No Action of Debt lies for the Interest of Mony but it is to be recovered by Assumpsit in Damages 198 W. Wager of Law WHere admitted and where not 261 Indictment of Perjury will not lie upon an Oath in waging Law 296 Way High way and Private-way the Diversity and who shall repair 189 256 Whether an Indictment lies for stopping a Common Foot-way to a Church 208 Action on the Case for obstructing his way to his Wood 274 Wills A man cannot release a Debt by Will 39 Wills concerning the Guardianship of a Child and not to be proved in the Ecclesiastical Court but they may there prove a Will of Lands 207 Where Suits for Legacies given by Wills ought to be 233 The Effect of a Republication and Paroll Declaration 341 342 Witness See Evidence Statutes A Council Attorney or Sollicitor ought not to be examined against his Clyent because obliged to keep his Secrets 197 A Pardon of Felony though after burning in the Hand restores a man to be a Witness not so of Perjury 349 Whether a Freeman of a City may be a VVitness for that City 351 Writs A Fault in a Mean Process is aided by Appearance but if an Original should bear date on a Sunday the Appearance of the Party would not help it 7 Sr Peyton Ventris Kn t. Late one of the Justices of the Court of Com̄on Pleas. I Royly pinx H White sculp THE SECOND PART OF THE REPORTS OF Sir Peyton Ventris Kt. LATE One of the Iustices OF THE COMMON-PLEAS CONTAINING Select CASES Adjudged in the COURT of Common-Pleas in the Reigns of K. CHARLES II. and K. JAMES II. and in the Three first years of the Reign of His now Majesty K. WILLIAM and the late Q. MARY while he was a JUDGE in the said COURT With the Special PLEADINGS to the same ALSO Several CASES and PLEADINGS thereupon in the Exchequer-Chamber upon Writs of ERROR from the Kings-Bench Together with many remarkable and curious Cases in the Court of Chancery Whereto are added Three exact TABLES One of the Cases the other of the Principal Matters and the third of the Pleadings With the Allowance and Approbation of the LORD KEEPER and all the JUDGES LONDON Printed by the Assigns of Richard and Edward Atkyns Esquires for Charles Harper at the Flower-de-Luce and Iacob Tonson at the Judges-Head both over against St. Dunstan's Church in Fleetstreet MDCXCVI MVNIFICENTIA REGIA 1715 GEORGIVS D. G. MAG BR FR. ET HIB REX F. D. I. P. Sc. THE NAMES OF THE CASES IN THE SECOND PART A ADAMS v. Cross 181 Alleson v. Marsh ibid. Anonymus's 35 39 45 46 47 48 58 73 117 154 171 172 173 174 180 194 195 196 214 215 216 218 262 346 347 349 351 353 358 359 361 362 363 365 B BAiles v. Wenman 74 Barney v. Tyson 359 Bathurst 's Case 40 Baynton v. Bobbet 67 Bealy v. Sampson 90 93 Beaumont v. Weldon 155 Beversham 's Sir William Case 345 Biddulph v. Dashwood 261 Bird v. Blosse 361 Blake v. Clattie 73 Bland v. Haselrig al' 151 Blisse v. Frost 63 67 Blois Charles al' v. Dame Jane Blois and Jane Blois Infants 347 Bockenham v. Thacker 69 71 74 Bond v. Moyle 106 Bonham v. Newcomb 364 Bowyer v. Milner 57 Bracton v. Lister 84 Bright v. Addy 195 Broadhurst v. Richardson al' 349 Brown v. Rands 156 Buckler v. Millerd 107 Burchet v. Durdant 311 Bush v. Buckingham 80 83 Butler 's Sir Oliver Case 344 C CAge v. Russel 352 Carr v. Donne 189 193 Chamberlain v. Cooke 75 78 Chapman v. Flexman 286 291 Chase v. Sir James Etheridge 130 Clarke v. Peppin 97 99 Clarke v. Tucket 182 Clobberie 's Case 342 Coghill v. Freelove 209 Collet v. Collet 355 Colley v. Helyar 135 Cornwallis 's the Lord Case 38 Cooke v. Romney 173 Cramlington v. Evans and Percival 296 307 Craw v. Ramsey 1 D DAwney v. Vesey 249 Dawson v. The Sheriffs of London 84 89 Dennis v. Mazey 210 212 Dickman v. Allen 136 138 Dighton Christopher v. Bernard Greenvil 321 Dod v. Dawson 143 Dodwell the Case of and The University of Oxford 33 Dowse v. Cale 117 126 Draper Sir Thomas v. Dr. Crowther 362 E ELlis v. Yates 153 Every v. Carter 254 259 F FAgg v. Roberts al' 195 Fleet 's The Warden of the Case 154 Fowkes v. Joyce 50 G GAwden v. Draper 217 George v. Butcher 140 Godfrey v. Ward 185 Gower 's Sir Thomas Case 90 Goylmer v. Paddiston 353 Grove v. Dr. Elliot Chancellor of Sarum 41 Guldeford Major probi homines de v. Clarke 243 247 H HAnson Judith v. Liversedge 239 242 Harding 's Patrick Case 315 Harris v. Parker 249 253 270 Harrison Tho. Ux ' v. Dr. Barwell 9 Haslewood v. Mansfield 196 Haymer Vid. v. Haymer 343 Highway v. Derby 174 Hocket Ux ' v. Stegold ux ' 29 Hodges v. Waddington 360 Holland v. Lancaster 131 134 Hollis 's my Lord Case 345 Humphreys v. Bethily 198 222 K KEmp v. Cory al' 224 227 283 Killigrew v. Sawyer 79 King of Grays-Inn v. Sir Edw. Lake 28 L LAde v. Baker and Marsh 145 149 Lade v. Barker 260 266 Lawson v. Haddock 234 237 Lechmere al' v. Toplady al' 156 169 Leigh v. Ward 72 Lexington the Lord v. Clarke and his Wife 223 Littleton 's Sir Thomas Case 351 Lundy 's Colonel Case 314 M. MArks v. Nottingham 196 Marsh v. Lee 337 Mason v. Watkins 109 Massingham v. Durrant 49 Morgan v. Hunt 213 Morley v. Polhill al' 51 56 Mountague the Earl of v. The Lord Preston 170 N NEwport v. Godfrey 184 Noell v. Robinson 358 Norwood v. Woodly 193 O ONslowe 's Case 37 Otwaie 's Sir John Case 31 Oxford 's the City of Case 106 P PAge v. Kirke 36 Pawlet 's the Lord Case 366 Perrot 's Herbert Case 30 Pheasant Peter v. Anne Pheasant The Lord Mayor of London and Sir Thomas Player Chamberlain of London c. 340 Pinager v. Gale 100 Pretious v. Robinson 173 Prynne v. Sloughter 101 104 Pyne v. Woolland 176 179 R RAgget William Vx ' v. William Clarke 364 Rashly v. Williams 59 61 Reeve 's Sir Robert Case 363
this Law by which this matter is to be decided Answ This Objection hath some speciousness in it but no weight First The Law viz. the Levitical Law is generally understood to be that which is publickly received as the Translation all Laws that are made concerning any such thing are to be understood of that kind of the thing which is vulgarly and generally known and received Secondly And 't is not long since the Clergy came to be so learned they were content heretofore with the Vulgar Translation and 't is not necessary for a Dean for that purpose or other Dignitary or Clergyman quasi such that he should understand the Languages But Thirdly We have no Cognizance of this Matter there was a time when they had no cognizance of Wills and Testaments but now they have they must study them and determine concerning them Since we have a Cognizance we may as well prohibit in this Case of Land Freehold c. For since this is made of the same nature we must go the same way If an Act were made that in matter of Theft c. we should judge after the Law of Moses we must study it and judge by it 'T is no new thing that Laws be thus transferred from one Nation to another thus was the Law of the Twelve Tables from Athens to Rome thus the Law of Rhodes to other parts of the World and so our Law was made the Law of Ireland and this is the Answer I give to the two Statutes that since we have Cognizance we must take notice of Gods Law If Churchmen in this case encroach Iurisdiction they must be prohibited because they have no Cognizance and we have tho' their accidental Learning may be more than ours Object 'T is hard that this should be a Prohibiting Law any more than those two other Statutes which 't is agreed were directive only to the Spiritual Courts and gave the Temporal Courts no Jurisdiction Answ There is a full and flat answer to this this Statute makes it not at all cognisable by them for where any Court has Cognizance the party must have Process c. But now here in the close of this Statute 't is enacted That no Person c. shall be admitted to any of the Spiritual Courts c. to any Process Plea or Allegation contrary to this foresaid Act And therefore all Cognizance of that nature is taken away from them They have Cognizance of all Marriages within the Levitical Degrees we allow and agree to disturb and punish the Parties but they have no Cognizance nor Power to determine what is within the Levitical Degrees and what not I conclude It is the Opinion of this Court and of all the Iudges that the Prohibition do stand and no Consultation be granted In this Case Dr. Stern the Archbishop of York was very zealous and industrious to set aside the Prohibition He made several and distinct applications to the Iudges about it he earnestly and particularly debated the matter with them and gave them Papers of his Arguments and Reasons to prove this Marriage incestuous and unlawful Thomas Rudyards Case THomas Rudyard an Attorney of this Court came into this Court upon the retorn of an Habeas Corpus directed to the Keeper of Newgate who retorned that he was taken and detained by virtue of a Warrant to him directed from Sir Samuel Sterling Lord Mayor and Sir J. Robinson two of the Kings Iustices of the Peace the tenour of which Warrant follows in these words Whereas T. R. Gent. hath been brought before Us and examined touching several Misdemeanours by him committed within the City of London since the Month of April and before the 4th of this instant June and to Us complained of and more particularly for inciting and stirring up of His Majesties Subjects then and there to the disobedience of his Laws and for abetting and encouraging of such as do meet in unlawful and seditious Conventicles contrary to the form of the late Statute made in the 22th Year of our Sovereign Lord the King that now is upon whose Examination we find just cause to suspect him to be guilty of the said Misdemeanours and thereupon did require him to find Sureties to be of the good Behaviour which he refused These are therefore to require you to take into your Custody the Body of the said T. R. and him safely to keep till he be from thence delivered by due Course of Law Given under our Hands and Seals this 11th day of June 1670. The Retorn being filed and spoken to by the Counsel upon two several days the Court delivered their Opinion Seriatim Wyld held that he ought to be remanded for if the Warrant had been that he appeared to be guilty or that they had found him guilty then the Commitment had been good as hath been agreed on all Hands and here the words in a favourable construction amount to as much The proceedings of the Magistrates against such Seditious Persons are to be encouraged especially in such a time as this when 't is known they are grown to such a head Archer contra For 't is altogether uncertain 't is said he was complained of c. but not that he did any thing and that they find just cause to suspect but shew not the Cause in particular If it had been said sundry Misdemeanours and not expressed what all would agree it insufficient as Chambers Case 1 Cro. and Wolnoths Case ibid. Mr. Selden 3 Car. was required to find Sureties for the good Behaviour for which the Iudges were severely reprehended in full Parliament because no sufficient Cause appeared Tho' the Iustices here had sufficient Cause to induce their suspicion they ought upon the Retorn to have signified it to the Court for their satisfaction also it should have been expressed also in what sum they required him to find Sureties that it might have appeared to be reasonable so that we cannot remand him but I think 't is fit to oblige him to Bail to appear the first day of the next Term that he may answer such things as shall be objected against him Tyrrell It is the Statute of 34 E. 3. c. 1. that enables Iustices of the Peace to require Sureties for the good Behaviour and that upon Suspition and seems to refer it to their Discretion but that must be exercised according to Law and whether it be or no the Iudges in this Hall must judge and therefore the matters ought to be certainly certified to them The present Retorn is altogether uncertain wherefore I think it ought to be discharged but I would advise him to consider the Statute of 35 Eliz. c. 1. against impugners of the Kings Authority in Ecclesiastical Causes Vaughan Chief Iustice This Case is one of the nicest that ever I met with on the one side is the consideration of discouraging Sectaries and preserving of the Publick Peace and Quiet of the Government On the other side the Legal Right which every
loco in quo c. pro eisdem quadraginta octo libr ' de reddit ' praed ' sic aretro existen ' juste c. ut in terris distriction ' praedict ' Nich. As in Lands charged with the Distress Marsh modo defend ' in forma praedict ' onerat ' obligat ' c. Demurrer Et praedictus Philippus Lade dic ' qd ' per aliqua per praed ' Thomam Baker Nicholaum Marsh superius in advocatione praed ' alleg ' iidem Thomas Baker Nicholaus Marsh captionem averiorum praedictorum in praedicto loco in quo c. justam cognoscere non debent quia dicit qd ' placitum praed ' per eosdem Thomam Baker Nicholaum Marsh modo forma praed ' superius placitat ' materiaque in eodem content ' minus sufficien ' in lege exist ' ad captionem averiorum praedictorum in praedicto loco in quo c. justam cognoscend ' ad quod idem Philippus Lade necesse non habet nec per Legem Terrae tenetur aliquo modo respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' placit ' in hac parte idem Philippus Lade pet ' judic ' dampna sua praed ' occatione captionis injuste detentionis averiorum praedictorum sibi adjudicari c. Joynder Et praedict Thomas Nicholaus ex quo ipsi sufficien ' materiam in Lege ad ipsum Nicholaum captionem averiorum praedictorum in praedicto loco in quo c. justam advocand ' Et ad ipsum Thomam ut Ballivum ipsius Nicholai eandem captionem in eodem loco justam cognoscend ' in advocare cognitione suis praedictis superius allegaver ' quam ipsi parat ' sunt verificare quam quidem materiam praedictus Philippus non dedic ' nec ad eam aliqualit ' respond ' pet ' judicium retorn ' averiorum praedictorum unacum dampnis c. sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedictis hic usque à die Sancti Michaelis in tres septimanas de audiend ' inde Judicio suo eo qd ' iidem Justic ' hic inde nondum c. Lade versus Baker Marsh REplevin for taking his Cattle at Barrham in Kent in a place there called the Fourteen Acrees The Defendant Baker made Conusans and Bailiff of Nicholas Marsh and saith that diu ante praed ' tempus quo c. one Robert Lade was seised in fee of the said 14 Acres and by his Deed indented dated 1 Octob. 24 Car. 1. between him of the one part and Nicholas Marsh Grandfather of the said Nicholas Marsh of the other part and produceth the said Deed in Court in consideration of 100 l paid to him by the said Nicholas Marsh the Grandfather did grant to the said Nicholas Marsh and his Heirs an annual Rent of 8 l to be issuing out of all that Capital Messuage with the appurtenances in Barham aforesaid and out of all Lands and Hereditaments in Barham aforesaid to the said Messuage belonging and then in the occupation of the said Robert Lade unde praedict ' locus in quo est praed ' tempore quo c. fuit parcell ' to be paid at our Lady Day and Michaelmas by equal portions with power to distrain if the said Rent or any part thereof were behind And the Defendant further saith that by virtue of the said Grant the said Nicholas Marsh the Grandfather became seised in Fee of the said Rent and being so seised by his Will in Writing dated the 28th of November 1654 devised the said Rent to Richard Marsh and his Heirs and died by virtue whereof the said Richard Marsh became seised in Fee of the said Rent and being so seised diu ante praedict ' Tempus quo c. viz. 10 Aug. 32 Car. 2. nuper Regis by his Deed indented between him of the one part and the said Nicholas Marsh the Defendant Son of the said Richard of the other part cujus Scripti alteram partem Sigillo praedict ' Richard Marsh omitting sigillat ' idem Thomas Baker the Defendant hic in Cur ' profert for and in consideration of Natural Love and affection which he bore to the said Nicholas now Defendant his Son and the sum of 5 l yearly by him the said Nicholas to the said Richard Marsh during the Life of the said Richard secured to be paid and for divers other good causes and considerations concessit assignavit transposuit to the said Defendant Nich. Marsh and his Heirs the said Annuity or yearly Rent of 8 l to the use of the said Nicholas Marsh the Defendant and his Heirs prout per idem Scriptum Indentat plenius apparet Virtute cujus quidem concessionis assignationis ulterius mentionat vigore Statuti Anno Regni Hen. 8. nuper Regis Angliae vicesimo septimo de usibus in possessionem transferend praedict Nich. Defend ' fuit adhuc est seisit de praedict annual reddit c. and for 48 l for six years arrear at Michaelmas next-before the taking of the Cattle to the said Nicholas the Defendant bene cognoscit ut Ballivus ipsius Nicholai c. To this the Defendant demurs First It is not sufficiently shewn that the Place where c. was charged with the Rent for the Rent is granted out of a Messuage with the appurtenances in Barham and out of all the Lands in Barham aforesaid to the said Massuage belonging and then in the occupation of the said Robert Lade unde praedict locus in quo est tempore quo c. fuit parcell and tho' it were parcel at the time of the Distress taking it might not be belonging to the said House or in the tenure of Lade at the time of the Rent granted which should have been shewn and of that Opinion were the Court. Secondly In the Deed by which the Defendant Nicholas Marsh claims it is said sigillo praedict Rich. Marsh omitting sigillat Sed non allocatur for it is said before that per Scriptum indentat factum inter c. he granted and that is enough Thirdly Here is a grant of the Rent from Richard Marsh pleaded without any Attornment or Enrollment To which it was answered by the Counsel for the Defendant that it appeareth that the Grant was made in Consideration of Natural Affection as well as Mony and so it shall enure as a Covenant to stand seised and for this the Case of Crossing and Scudamore was cited Pas 23 Car. 2. Rot. 871. where in Ejectment it was found by Special Verdict that Nicholas Hele was seised of Lands in Fee and that he made a Deed to Jane Hele enrolled within six Months by which he did for and in consideration of Natural Love Augmentation of her Portion
non habet nec per legem terrae tenetur aliquo modo respondere Et hoc parat ' est verificare Unde pro defectu sufficien ' replicaconis in hac parte Idem Samuel ut prius pet ' Judicium Et quod praedict ' Juditha ab accone sua praed ' habend ' praecludatur c. Et praedict ' Juditha ex quo ipsa sufficien ' Joynder in Demurrer materiam in lege ad acconem suam praedict ' versus praefat ' Samuel ' habend ' manutenend ' superius replicando allegavit quam ipsa parat ' est verificare Quam quidem materiam idem Samuel non dedic ' nec ad eam aliqualit ' respond ' sed verificacon ' ill ' admittere omnino recusat ut prius pet ' Judicium debitum suum praedict ' unacum dampnis suis occone detenconis debiti ill ' sibi adjudicari c. Et quia Justic ' hic se advisare volunt de super praemissis priusquam Judicium inde reddant dies dat' est partibus praedict ' hic usque à die Paschae in quindecim dies de audiendo inde Judicio eo quod iidem Justic ' hic inde nondum c. Judith Hanson versus Liversedge IN an Action of Debt upon a Bond the Condition was to perform the Award of two Arbitrators in Writing or by word of Mouth The Defendant pleaded Nullum fecerunt arbitrium The Plaintiff replies That at the time of the Bond and Award she had an Action against the Defendant for scandalous Words and that the Arbitrator did make declare and publish their Award in manner and form following viz. That the Defendant should pay to the Plaintiff 12 Guinea's and all such Moneys as she had expended circa prosecutionem placiti praedict ' and that the parties should give mutual Releases of all Matters to the Date of the said Bond and saith that she laid out in the said Suit 11 l 7 s and demanded the said Sums of Money of the Defendant and protestando that the Defendant had not paid her the 11 l 7 s dicit in facto that he had not paid the 12 Guinea's awarded as aforesaid hoc parat ' est verificare c. To this the Defendant Demurred And Pemberton for the Defendant said First This Award as set forth appears to be void for 't is to pay the Charges expended circa placit ' praed ' and the Award doth not mention any Suit before and tho' the Plaintiff in her Inducement saith That she had an Action for Words against the Defendant then depending that will not help it for that is no part of the Award but the Award in the Form as 't is set forth is unintelligible there being no Suit mentioned before to refer placit ' praedict ' unto Secondly 'T is not sufficient to Award payment of the Charges in such a Suit it being altogether uncertain what the Sum will amount to Thirdly It ought to have been shewn that the Plaintiff had a Cause of Action in the Action that is mentioned to have been brought against the Defendant for Slander and so is Spigurnell's Case in Siderfin 1st Part 12. Curia As to the first if the Award were in Writing in such form of Expression it could not be good but he which sets forth an Award by Parol is not tyed to the words for the precise words might be very difficult to prove but 't is sufficient to shew the effect and substance of what was awarded by Word of Mouth and 't is sufficiently shew that this Award was made concerning that Action of Slander For the Second the Court held that the Award was good for it may be easily reduced to a Certainty when 't is made appear what was laid out in that Suit as in 1 Roll. Abr. 251. Beale and Beale and in the 3 Cro. 383. to pay the Charges of such a Voyage held a good Award Thirdly The Plaintiff need not shew that there was Cause of Action for that is left to the Arbitrators and they have power to award Charges thereupon tho' in point of Law there were no Cause of Action for the Parties have made the Arbitrators their Judges And the Court were not satisfied with the Opinion Reported by Syderfin in Spigurnell's Case and said he was then a young Reporter Whereupon Judicium pro Quer ' Major probi homines de Guldeford versus Clarke Surr ' ss JOHANNES CLARKE nuper de Guldeford ' Debt upon a By Law made by a Corporation by Prescription in Com' praedict ' Dyer Sum ' fuit ad respondend ' Majori probis hominibus Villae de Guldeford ' in Com' Surr ' de placito quod reddat eis viginti libras legalis monet ' Angl ' quas eis debet injuste detinet c. Et unde inde iidem Major probi homines Villae de Guldeford ' praed ' per Henr ' Dyve Attorn ' suum dic ' quod cum praedict ' Villa de Guldeford ' in dicto Com' Surr ' est antiqua Villa quodque probi homines ejusdem Villae à tempore cujus contrarij memoria hominum non existit fuer ' Antiqua Villa adhuc existunt corpus Corporat ' Politicum in re facto nomine per nomen Majoris proborum homin ' Villae de Guldeford ' in Com' Surr ' A Corporation time out of Mind To implead and be impleaded per idem nomen usi fuer ' placitare implacitari respondere responderi Cumque etiam infra Vill ' ill ' habetur à toto tempore supradict ' cujus contrar ' memoria hom ' non existit habebatur talis consuetudo usitat ' approbat ' quod Major probi homines Villae praedict ' pro tempore existen ' vel major pars eorundem in Com' A Custom to make By-Laws Concil ' congregat ' assemblat ' usi fuer ' consuever ' facere constituere leges constitucones pro bono regimine gubernacone Villae praed ' inhabitan ' ejusdem poenas poenalitat ' For good Government of the Corporation And to impose Penalties Custom to elect a Bayliff Annually super personas contra leges constitucones ill ' delinquen ' imponere Cumque etiam infra Villam praedict ' fuit antiquus Officiarius annuatim quolibet anno super diem Lunae prox ' post Festum Sancti Michaelis Archi ' pro uno anno tunc sequen ' per Majorem probos homines praed ' elect ' vocat ' Balliv ' ejusdem Villae ad negotia ejusdem Villae peragend ' Cumque etiam praed ' Major probi homines Villae praed ' The By-Law set forth secundo die Octobris anno regni domini Caroli secundi nuper Regis Angl ' c. tricesimo quarto apud Vill ' de Guldeford praedict ' in Com' Consilio adtunc ibidem congregat ' assemblat '
whom the King shall have it unless there be a particular person grieved 188 189 267 268 A Forfeiture shall not bind in Equity where a thing may be done afterwards or Composition made for it 352 G Gaming See Assumpsit DIce Play not unlawful in it self tho' prohibited by several Statutes to certain persons and in certain places 175 Grant A Deed having no Execution to make it work as a Grant shall operate as a Covenant to stand seized 261. and by the Statute of Vses 266 Where Land is granted by Deed-Pool in Consideration of Natural Affection without Enrolment or Attornment whether it shall operate as a Covenant to stand seized or be void 318 H Habeas Corpus NO Habeas Corpus to be moved for in the Common Pleas unless it concerns a Civil Cause yet the contrary permitted in the case of an Attorney of that Court 24 Half-Blood The Half-Blood shall have equal Share with the Whole-Blood in Distribution upon the Statute of 22 23 Car. 2. c. 10. 317 Heir See Mortgage Heirs is Nomen collectivum and is sometimes so taken when 't is only Heir in the Singular Number 313 Heir and not Executor shall have the Surplusage of Lands leased for payment of Debts 359 I Infant INfants not foreclosed in Chancery till they come of Age 351 Intent No Exception to Vnum Vasum Vini Hispanici that is not said what the Vessel was made of for it is intended to be made of Wood 67 The Name of a Grantor omitted in an Indenrure supplied by Intendment 142 Racks in a Stable shall be intended to be fixt and need not to be shewn to be so in Pleading 214 Every Agreement must have some reasonable Construction that may may be consistent with the Intent of the Parties and therefore if a man agrees with another that he shall make a Drain through his Ground he shall not make it through the parties Stables or Buildings in case there are other places proper 278 In a Special Verdict nothing shall be intended that is not found 330 Imprisonment See Pleading Impropriation Whether a Rectory Impropriate being made a Lay-Fee can be sequestred by the Court Christian for not Repairing the Chancel 35 Ireland See Naturalization Of its Conquest and the Introducing the Laws of England there 4 The Power of an Act of Parliament in Ireland 5 K King See Forfeiture ALlegiance due to the Natural and not the Politick Person of the King 3 In case of things which are Nullius in Bonis where no visible Right appears the Law gives them to the King as Derelict Lands Treasure Trove Extra-parochial Tythes c. So where the Right is equal between the King and the Subject the Kings Title hath the Preference 268 The King is the Fountain of Justice and that as well Ecclesiastical as Civil and may by the Ancient Law of the Realm visit reform and correct Abuses in the Jurisdiction Spiritual 268 In what Cases Forfeitures are vested in the King before Office found and where not 270 L Law A Thing for which there is neither Practical Custom Judicial Precedent or Act of Parliament to warrant may well be judged to be against Law 7 The clearest way how to understand any Law is to consider what was the Judgment of those People among whom and the Times in which it was practical 17 To excite the People to the disobedience of a Law of a Publick Nature is the highest Offence under High Treason 23 Lease What Lease capable of a Release to work a Bargain and Sale 35 For 99 years if two Persons shall so long live determines upon the death of either 74 Legacy See Executor Legatees are to have their Proportion where the Assets fall short 358 Legatees shall refund against Creditors and if the Ecclesiastical Court give Sentence for a Legacy a Prohibition lies unless they take Security to refund 358 360 Licence See Distress Limitation See Original Mortgage Suit to recover a Depositum in Trust for a Feme Covert not barr'd by the Statute of Limitations 345 London Of the Custom of London relating to Orphans Money 340 341 M Market WHere a Market is granted to the Damage of another the Patent may be repeal'd in a Scire facias notwithstanding a Writ of Ad quod Damnum had been executed for the Return of that Writ was not conclusive 344 Marriage Whether a Man may marry his Great Uncle's Widow 9. He may 18 20 The four Statutes relating to Marriage expounded 11 infr Tho' the Stat. 32 H. 8. c. 38. allows all persons to Marry that are without the Levitical Degrees yet persons Pre-contracted or under a perpetual Impotence are prohibited to Marry 15 To Marry his Brother's Wife prohibited by the Statute tho' not by the Levitical Law 17. So of his Wives Sister ibid. Marriages in the ascending and descending Line prohibited without limit not so between Collaterals and the Reasons 18 The Ecclesiastical Courts have Conizance to punish persons Marrying within the Levitical Degrees but not to determine what is within the Levitical Degrees and what not 22 Agreements to settle in Consideration of Marriage favoured in Chancery 353 354 357 Marriage restrictions how to be observed 365 Mine If a Man opens a Mine in his own Land he may dig and follow the Vein under another Man's Ground 342 But if the Owner did there also he may stop his further progress ibid. Mortgage Where Lands are Mortgaged thrice over the third Mortgagee may buy in the first Incumbrance to protect his own Mortgage and he hath both Law and Equity for him 338 He shall hold the Land against the second Mortgagee until be be satisfied both the Money he paid the first Mortgagee and also his own which he lent upon the last Mortgage ibid. But where only Part of the Lands are mortgaged to the first and the whole to the second and after to the third here if the third buys in the first Title it shall protect only that part that is in the first Mortgage 339 A Purchaser or Mortgagee coming in upon a Valuable Consideration without Notice and purchasing in a precedent Incumbrance it shall protect his Estate tho' he purchased in the Incumbrance after Notice of a second Mortgage ibid. Mortgages not relievable in Chancery after 20 years for the Stat. 21 Jac. 1. c. 16. limits the time of Entry to that number of years and 't is best to square the Rules of Equity as near the Rules of Reason and Law as may be 340 Upon a Mortgage in Fee the Redemption Money shall be paid to the Executor and not to the Heir 348 351 Where by a Devise of all his Lands Lands in Mortgage pass 351 Where a man 's own Covenant shall restrain him from his Equity of Redemption and where it shall not 365 Murder Husband kills a Man in the act of Adultery with his Wife Manslaughter and not Murder the Provocation being exceeding great Vide the First Part of these Reports 158 N Naturalization WHether
a Scotishman Antenate being Naturalized by Act of Parliament in Ireland can Inherit Lands in England 2 Ne exeat Regnum Granted in Chancery to stop one from going beyond Sea to avoid a Sentence in the Ecclesiastical Court 345 Nonsuit The Plaintiff Nonsuited in Ejectment after Evidence where two Defendants and one appears to confess Lease Entry c. and the other not the Plaintiff shall pay Costs but quaere how to be divided 195 Notice See Chancery Conveyance Mortgage If a Man pleads a Valuable Consideration in Chancery to save his Estate from a Judgment he must also set forth That he had no Notice of the Judgment 361 O Obligation A Penalty may be recovered in an Action of Debt upon a Bill Obligatory tho' it be not drawn properly as a Penal Bill 106 Occupant Occupancy favoured in Chancery 364 Office Where the Archdeacon forfeits his Right to grant the Office of his Register by the Stat. 5 E. 6 c. 16. against the Sale of Offices whether the King or Bishop shall take advantage of the Forfeiture 188 213 267 A Dissenter that hath not received the Sacrament of 12 Months before may plead the Stat. 13 Car. 2. Stat. 2. cap. 1. to excuse him from serving Offices in Corporations 247 248 Original See Writs What Original Filing within time shall be sufficient to prevent the pleading the Statute of Limitations 193 259 Whether in the Common Pleas an Original in a Clausum fregit be sufficient to warrant a Declaration in an Assumpsit 259 Outlawry A Man in Prison ought not to be Outlawed by him who Imprisoned him 46 Action on the Case will not lye for the Party who hath an Outlawry agaist a Sheriff who neglects to extend the Goods of the Outlaw upon the delivery of a Writ of Capias Vtlagatum for that it is the King's loss 90 Whether Outlawry may be pleaded in Bar to an Assumpsit upon a Quantum meruit 282 Oxford See By-Law The Priviledge of the University not allow'd to a Townsman so as to excuse him from Office who keeps a Shop and follows a Trade tho' he be Matriculated and Servant to a Doctor 106 Priviledge not allow'd to a Member of this University in a Suit in Chancery 362 P Pardon SUits by Successor against Executor for Dilapidations not pardon'd by the General Pardon otherwise of Suits ex Officio against the Dilapidator 216 Parliament No Action lies against the Chief Officer of a Corporation for a Double-Return of a Burgess the Common Pleas having no Jurisdiction of this Matter 37 Peace The King cannot discharge a Recognizance taken for Surety of the Peace but after it is broken he may 131 A Gentleman said to be a Member of the House of Commons bound to the Peace for Challenging one of the King's Witnesses to Fight 317 Plantation Tho' a Plantation be an Inheritance yet being in a Foreign Country 't is look'd upon as a Chattel to pay Debts and a Testamentary thing 358 Pleading See Baron and Feme Covenant Intent Scire facias Copyhold What shal be held a Double Plea and what not 68 198 Trespass for carrying away diversa onera equina of Gravel naught for incertainty 73 Want of the Word alio or aliis in a Declaration where several mention is made of things of the same nature yet good enough 78 For the Defendant to traverse Matter not alledged good Cause for the Plaintiff to demur 79 If a Judgment and Execution be pleaded in an Inferiour Court not of Record the Proceedings ought to be set forth at large and not sufficient to say taliter processum fuit also it ought to be set forth That the Cause of Action did arise within the Jurisdiction 100 In a Prescription for Priviledge tempore quo non exstat memoria good enough tho' the Course be to say à tempore cujus contrarium memoria hominum non existit 130 Tho' by Course of the Court if a Defendant lye in Prison two whole Terms without any Declaration put in he may get a Rule to be discharged yet if a Declaration be afterwards delivered and Judgment thereupon 't is a good Judgment and the Bail formerly given will be liable 143 Where Freehold Lands were pleaded to pass by Surrender according to Custom the Special Custom must be set forth 144 Where the Writ contains more than is Declared for this is a Variance not aided by the Verdict and Judgment arrested 153 Debt upon Bond Condition'd That the Husband shall permit the Wife to dispose of her Personal Estate c. it is not sufficient for the Defendant to plead quod Conditio nunquam infracta fuit and put the Plaintiff to assign a Breach but the Defendant must shew forth That he hath perform'd the Condition 156 Where an Action of Trespass brought for the same Matter in another Court may be pleaded in Bar to an Action of Trover 169 170 In Trespass quod duas acras terrae fod subvert asportavit Judgment stayed because the Declaration doth not express the quantity of Earth carried away for the two Acres relate only to the Ground digged 174 The Plaintiff Declares for Assault Battery Wounding and Imprisonment the Defendant in his Plea takes no notice of the Battery naught 193 Plea in Abatement That the Plaintiff was dead before the Action brought where good 196 Where preadict is necessary and where not 197 Where a Traverse that might have been omitted is Cause of Demurrer 212 Doubleness in a Declaration cured by Answering 222 Day of the Week where material ought to be set forth in Pleading for the Court are not obliged to consult the Almanack 248 Tempore dimissionum where it should be temporibus dimissionum naught 253 254 271 Super Acclivitatem de Hampsted which is a description of a Scituation whether it be a Vill or Lieu conus sufficient for a Jury 254 272 Diversas petias Maheremij cepit c. naught for the Incertainty 262 Where the Defendant pleads an Insufficient Plea the Plaintiff shall make no Advantage of that upon Demurrer if his own Declaration be naught but Judgment will be against the Plaintiff 262. As where an Executor sues for Rent and does not sufficiently Intitle his Testator to the Estate demised ibid. Plenam potestatem Jus Titulum ad Praemissa dimittend ' and does not set forth what Estate he had whether in Fee or other Estate not good upon a Demurrer 271 Houses are set forth in Pleading to lye in Parochia praedicta and two Parishes are named before naught for the Incertainty 278 Traverse impertinent where the Matter is confest and avoided 283 No General Rule That a Matter cannot be pleaded specially which may be given in Evidence upon a General Issue and in what Cases it may 295 Vid. infra Statut. 1 W. M. cap. 4. Presumption Presumptions of Law stand as strong till the contrary appears as an express Declaration of the Party 208 Priviledge Whether the Warden of the Fleet shall have a Writ
of Priviledge fitting the Parliament 154 Prohibition A second Prohibition not grantable after a Consultation 47 Q Quantum meruit See Outlawry Que Estate See Corporation R Recovery A Deed Fine and Recovery do all make but one Assurance but each hath its several effect 31 Common Recoveries are Common Assurances and are not to be overthrown by nice Constructions 32 A Common Recovery stopt what shall be good Cause to stop it 90 Relation Of Relation its force and where it shall Operate 200 Remainder What shall be accounted a Contingent Remainder and what a Remainder vested 313 Rent Rent due if the thing let hath been really enjoy'd 68 A Rent cannot be reserved out of a thing Incorporeal 69 Every Quarters Rent is a several Debt and distinct Actions may be brought for each Quarters Rent Not so for part of the Money due upon Bond or Contract unless the Plaintiff shews that the rest is satisfied 129 A Debt for Rent payable by an Executor before Bonds because it savours of the Realty and is maintain'd in regard of the Profits of the Land received 184 Request Request where necessary to be set forth and where not 75 Rescous See Return Return If a Sheriff Return a Rescous it is not now Traversable tho' formerly it was 175 Reversion A Reversion is a present Interest tho' to take effect in possession after another Estate determined 328 Revocation What shall be a good Revocation in Equity 350 S Scire facias WHere one Ter-tenant is Return'd summon'd he may plead That there are other Ter-tenants tho' in another County 104. But he must not plead this by way of Abatement but demand Judgment si ipse ad breve praed in forma praed retorn ' respondere compelli debeat 105 The Record of a Scire facias naught in the Titleing not permitted to be amended 105 Scire facias in Chancery to Repeal a Patent 344 Settlement See Conveyance Marriage Mortgage A Voluntary Settlement avoided by a following Settlement in Joynture 363 Sheriff If a Sheriff of a City be in Contempt the Attachment shall go to the Coroners and not to the Mayor but if he be out of Office then it shall go to the succeeding Sheriff 216 Simony To sell an Advowson ea intentione that J.S. shall be presented Simony 39 In case of Simony the Presentation vests in the King without Office Quaere in other Cases 213 Statutes 13 E. 1. Stat. of Winton In an Action upon this Statute not necessary to set forth more in the Declaration than is pertinent to the Action 215 4. H. 7. cap. 24. Of Fines Of Claims after the coming in of Future Interests in the second Saving in this Act 333 21 Jac. 1. cap. 16. See Limitations 22 23 Car. 2. cap. 9. No more Costs than Damage explain'd 36 What Trespass within this Statute What not 48 29 Car. 2. cap. 3. A Promise by Letter a sufficient Promise in Writing within this Statute 361. This Statute does not extend to Trusts raised by Operation of Law 361 31 Car. 2. cap. 2. Where a Man commits a Capital Crime in Ireland he may be sent thither to be Tried thereupon notwithstanding that by this Act No Subject of this Realm shall be sent Prisoner to any Foreign parts 314 1 W. M. cap. 4. That Statute which saves time of Limitation does not alter the Form of Pleading but that shall be as it was before 185 197 Statute Recognizance See Fine What shall be esteemed a regular Extending of a Statute Merchant 326 Where the Interest of a former Statute shall drown'd in that of a latter being both Extended and assigned to the same person 326 327 328 The Extent of a Statute what it is and the Effect thereof 326 338 An Extent upon a Puisne Statute where Extended after a Prior Statute is in the nature of a Reversional Interest 328 When a former Statute is determin'd whether it be by release of the Debt by purchase of part of the Lands by being barr'd by Non-Claim upon a Fine Satisfaction acknowledged or any other means this lets in the Puisne Statute 332 An Extent begins by Record but it may end without Record for a Release by the Conizee after Extent determines it and he that hath a Puisne Statute may Enter 336 Cannot be assigned before Extent in Law 362 Surrender No Surrender of an Estate without Acceptance by the Surrenderee 199 Yet quaere for the Judgment was reverst in Parliament 208 That a Surrender divesteth the Estate immediately before express Assent of the Surrenderee 203 infr T Tail A Devise to one for Life Remainder to the Heir Males of his Body for ever this is an Estate-Tail in the Devisee 313 A Sum of Money cannot be Entailed 349 Tender Plea of a Tender without setting forth a Refusal not good otherwise if a place of Payment was appointed and the Party to Receive was not there 109 Tythes Whether Notice be necessary to be given to the Parson upon setting forth of Tythes 48 Traverse See Pleading Treason Whether Listing of Men to send beyond Seas to joyn the King's Enemies be Treason within the Clause of Levying War in the Stat. 25 Ed. 3. 316 Whether the indictment should not express in particular who those Enemies are or whether the General Words be not sufficient ibid. To List c. and an Intent to Depose the King is Treason within the Clause of Compassing the Death of the King 317 Trespass See Assent Whether a Suit in an Action of Trespass be a Breach of Covenant to hold and enjoy quietly 46 61 62 Where an Action of Trover will lye for Goods tho' an Action of Trespass would not for taking them 169 170 Trust See Chancery Limitation The force of the Word Trust in the Limitation of a Use 312 Where a Man buys Land in anothers Name and pays Money it will be a Trust for him who pays the Money tho' there be no Deed declaring the Trust 361 Trust executed in Chancery according to the Parties meaning 363 364 Tryal A New Tryal directed by the Lord Chancellor where the former Verdict has been complain'd of in a Bill before him the Complainant paying the Costs of the first Tryal 351 352 V Variance See Pleading Verdict See Baron and Feme A Mistake in an Indebitatus Assumpsit where good after Verdict 36 A Declaration tho' Inartificial is notwithstanding good after Verdict 174 Vill. Vill and Parish the Diversity and where Lands in One shall pass in the Other of the same Name 31 Vmpire Arbitrators and Umpire cannot lawfully have concurrent Authorities at the same time 115 Vse Where Money is paid to A. for the Use of B. in whom the Right and Interest vests 310 Lands may be Devised to the Use of another but if no Use be limited they will lodge in the Devisee for a Devise implies a Consideration 312 Vsury No Unlawful Usury if the Agreement be not Corrupt tho' the Wording of the Condition may be otherwise by Mistake