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cause_n	king_n	lord_n	person_n	2,832	5	4.9191	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A80192	The Second part of Modern reports, being a collection of several special cases most of them adjudged in the Court of Common Pleas, in the 26, 27, 28, 29, & 30th years of the reign of King Charles II. when Sir. Fra. North was Chief Justice of the said court. : To which are added, several select cases in the Courts of Chancery, King's-Bench, and Exchequer in the said years. / Carefully collected by a learned hand.	Colquitt, Anthony.; Washington, Joseph, d. 1694.; Great Britain. Court of Exchequer.; England and Wales. Court of Common Pleas.; England and Wales. Court of Chancery.; England and Wales. Court of King's Bench.	1698 (1698)	Wing C5416; ESTC R171454	291,993	354

special Verdict He who sues in an Inferior Court is bound at his peril to take notice of the Bounds and Limits of that Iurisdiction and if the Party after a Verdict below prays a Prohibition and alledges that the Court had no Iurisdiction a Prohibition shall be granted and 't is no Estoppel that he did not take advantage of it before 1 Roll. Abr. 545. But Iustice Atkins and Scroggs were of another Opinion they agreed that if an Action be brought in an Inferior Court if it be not said to be infra Jurisdictionem Curiae they would never presume it to be so but rather to be without if not alledged to be within the Iurisdiction and here in the Plea 't is not shewn at all so that as the Case stands upon the Plea the Proceédings are coram non Judice and there is no legal Authority to warrant them and by consequence the Officer is no more to be excused than the Party because also 't is in the Case of a particular Iurisdiction And so it hath béen adjudged upon an Escape brought against an Officer of an Inferior Court wherein the Plaintiff declared that he had brought an Action upon a Bond against S. in the Court of Kingston and that he had Iudgment and Execution and the Defendant suffered him to escape this Declaration did not charge the Defendan because the Bond was not alledged to be made infra Jurisdictionem Curiae for though such an Action is transitory in its nature yet the Proceedings in an inferior Court upon it are coram non Judice if it doth not appear to be infra Jurisdictionem 1 Roll. Abr. 809. though in the Case of a general Iurisdiction it might be otherwise But here the Rejoynder doth help the Plea for the Plaintiff having replied that the Trespass was committed out of the Iurisdiction and the Defendant having rejoyned that he had alledged in his Declaration below that the Trespass was done within the Iurisdiction 't is now all one Plea and the Plaintiff hath confessed it by his Demurrer so that in regard it was alledged below and admitted there 't is a good Plea both for Officer and Party and the Plaintiff cannot now take advantage of it but is concluded by his former admittance and it shall not be enquired now whether true or false And as to the taliter processum fuit they all held it well enough and that there was no necessity of setting out all the Proceedings here as in a Writ of Error And as to the last Exception 't is said that the Burrough of Warwick is antiquus Burgus and that the Court is held there secundum consuetudinem which is well enough Jones's Case Common Pleas cannot grant Habeas Corpus in Criminal Cases IT was moved for a Habeas Corpus for one Jones who was committed to New Prison by Warrant from a Iustice of Peace for refusing to discover who intrusted him with the keeping of the Keys of a Conventicle and for that he had been instrumental to the Escape of the Preacher he was asked by the Iustice to give Security for his Good Behaviour which he also refused and thereupon was committed The Chief Iustice doubted that a Habeas Corpus could not be granted in this Case because it was in a criminal Cause of which the Court of Common Pleas hath no Iurisdiction and that seemed to be the Opinion of my Lord Coke Vaugh. 157. 2 Inst 53. 2 Inst 55. where he saith it lies for any Officer or priviledged Person of the Court. There are three sorts of Habeas Corpus in this Court one is ad respondendum Mod. Rep. 235. which is for the Plaintiff who is a Suitor here against any Man in Prison who is to be brought thereupon to the Barr and remanded if he cannot give Sureties There is another Habeas Corpus for the Defendant ad faciend ' recipiend ' as to this the same Iurisdiction is here as in the Court of Kings Bench if a person be near the Town by the course of the Court he may be brought hither to be charged and then the Habeas Corpus is returnable immediate but if he be remote it must then be returnable in the Court at a certain day these are the Habeas Corpus's which concern the Iurisdiction of this Court and are incident thereunto There is another which concerns Priviledge when the Party comes and subjects himself to the Court to be either bailed or discharged as the Crime is for which he stands charged and if he be priviledged this Court may examine the Case and do him right if a private man be committed for a criminal Cause we can examine the Matter and send him back again Before King James's Reign there was no Habeas Corpus but recited a Priviledge as in the Case of Priviledge for an Attorny so that if this Court cannot remedy what the Party complains 't is in vain for the Subject to be put to the trouble when he must be sent back again neither can there be any failure of Iustice because he may apply himself to a proper Court and of the same Opinion were Wyndham and Scroggs But Iustice Atkins was of another Opinion for he could see no Reason why there should not be a Right to come to this Court as well as to the Kings Bench. And that Vaughan Wild and Archer Iustices were of Opinion that this Court may grant a Habeas Corpus in other Cases besides those of Priviledge Afterwards the Prisoner was brought to the Court upon this Habeas Corpus but was remanded because this Court would not take Sureties for his Good Behavior The Chief Iustice said that when he was not on the Bench he would take Sureties as a Iustice of Peace And Monday late Secondary informed him that Iustice Wild when he sate in this Court did once take such Sureties as a Iustice of Peace Anonymus IT was the Opinion of the Chief Iustice North In Replevin both are Actors that in a Replevin both Parties are Actors for the one sues for Damages and the other to have the Cattle and there the place is material for if the Plaintiff alledges the taking at A. and they were taken at B. the Defendant may plead Non cepit modo forma but then he can have no Return for if he would have a Retorn ' Habend ' he must deny the taking where the Plaintiff hath laid it and alledge another place in his Avowry Sir Osborn Rands versus Tripp THE Plaintiff was a Tobacconist and lived near Guild-Hall London he married the Daughter of the Defendant New Trial granted who was an Alderman in Hull and had 400 l. Portion with her after the Marriage the Defendant spoke merrily before thrée Witnesses That if his Son-in-Law would procure himself to be Knighted so that his Daughter might be a Lady he would then give him 2000 l. more and would pay 1000 l. part thereof presently upon such Knighthood and the

quo and 't is in nature of a Contract raised by Law By the Words of the Capias ad satisfaciend ' it doth appear that the design of the Writ is to enforce the Payment of the the debt by the Imprisonment of the Defendant The Sheriff thereupon returns that he hath taken the Body and that the Defendant hath paid the Mony to him for which reason he discharged him and for this Return he was amerced not because he discharged the Party but because he had not brought the Mony into the Court for the Law never intended that a Man should be kept in Prison after he had paid the debt In this Case the Defendant can have no remedy to recover it again of the Marshal because it was not a bare Payment to him but to pay it over again to the Plaintiff and likewise in consideration that he should be discharged from his Imprisonment If it should be objected by the Marshal that the Plaintiff hath an Action of Escape against him and likewise by the Plaintiff that he did not make the Gaoler his Steward or Bayliff to receive his Mony Answ The Gaoler is made his Bayliff to keep the Party in Execution and it would be very hard that when the Prisoner will lay down his Mony in discharge of the Debt that the Gaoler should not have full power to discharge him If he had come in Michaelmas-Term after the long Vacation and informed the Court that he had offered to pay the Execution Mony to the Marshal and that he would not take it and that the Plaintiff could not be found the Court would have made a Rule to help him Mr. Holt contra If the Payment had béen good to the Sheriff or Marshal yet 't is not pleadable to the second Execution because 't is matter in fact That which hath been objected that the Party shall plead to a second Execution that his Goods were taken by a former Fieri Facias cannot be for no such Plea can be good because by that Writ the Sheriff hath express Authority to levy the Mony and the Plea is not Payment to the Sheriff but that the Mony was levyed by him by virtue of the Writ which ought to be brought into the Court and an Audita Querela lies against the Plaintiff and then the Defendant is to be bailed 1 Leon. 141. Askew versus the Earl of Lincoln Jones and Rainsford were of Opinion that the Defendant might have remedy against the Marshal to recover his Mony again and that the Payment to him was no discharge to the Plaintiff at whose Suit he was in Execution But Iustice Wyld was of another Opinion Quaere The Lord Marquess of Dorchester's Case In Communi Banco IN a Scandalum Magnatum Visne not changed in a Scandalum Magnatum Serjeant Pemberton moved to have good Bail which the Court denied and said that in such Case Bail was not requirable but notwithstanding the Defendant consented to put in 50 l. Bail And then upon the usual Affidavit moved to change the Visne the Action being laid in London which was opposed by the Serjeant who desired that it might be tried where it was laid but he said in this Case that the Visne could not be changed 1. Because the King is a Party to the Suit for 't is tam pro Domino Rege quam pro seipso 2. The Plaintiff is a Lord of Parliament which is adjourned and will meet and therefore it would be inconvenient to try the Cause in the Country since the Service of the King and Kingdom both require his Attendance here and he said that upon the like Motion in B. R. between the Lord Stamford and Needham the Court would not change the Visne North Chief Iustice said that he always took it as a current Opinion that in a Scandalum Magnatum the Visne could not be changed for since it was in the nature of an Information it being tam quam 't was advisable whether it was not within the Statute of 21 Jac. which doth appoint Informations to be tried in their proper Counties But Iustice Atkins inclined that the Visne might be changed for though by the Wisdom of the Law a Iury of the Neighbourhood are to try the Cause yet in point of Iustice the Court may change the Visne to which it was objected that then there would be no difference between local and transitory Actions Actions of Debt and Accompt shall be brought in their proper Counties 6 R. 2. and it was agreed that an Attorney is sworn to bring Actions no where else But the Court not agréeing at last the Defendant was willing that the Cause should be tried in London if the Plaintiff would consent not to try it before the first Setting in the next Term. And as to that reason offered why the Visne should not be changed because the Plaintiff was a Lord of Parliament Iustice Atkins said that did not satisfie him it might be a good ground to move for a Trial at the Barr to which it was answered that in the Case of the Earl of Shaftsbury the Court would not grant a Tryal at the Barr without the Consent of the Defendant The Visne was not changed Beaver versus Lane COvenant made to Baron and Feme Covenant to Baron and Feme the Baron alone may bring the Action the Husband alone brings the Action quod teneat ei conventionem secundum formam effectum cujusdam Indenturae inter Querentem ex una parte Defendentem ex altera parte confect ' and this was for not repairing his House After Verdict for the Plaintiff it was moved in Arrest of Iudgment because of this variance But the Court Ordered that the Plaintiff should have his Iudgment for the Indenture being by Baron and Feme it was therefore true that it was by the Baron and the Action being brought upon a Covenant concerning his Houses and going with them though it be made to him and his Wife yet he may refuse quoad her and bring the Action alone And the Chief Iustice said that he remembred an Authority in an old Book that if a Bond be given to Baron and Feme the Husband shall bring the Action alone which shall be looked upon to be his refusal as to her Calthrop versus Phillips THE Question was Supersedeas must be delivered by the old Sheriff to the new one Mod. Rep. 222. in regard a Supersedeas is not returnable in the Court whether the old Sheriff is bound to deliver it over to the new one or no and it was urged that it ought not because the old Sheriff is to keép it for his indempnity and he may have occasion to plead it But on the other side it was insisted by Serjeant George Strode that it ought to be delivered to the new Sheriff and that there was a Writ in the Register which proved it fol. 295. and if it should be otherwise these inconveniences would follow 1. It would be

The Second PART OF Modern Reports BEING A COLLECTION Of Several SPECIAL CASES Most of them ADJUDGED in the COURT OF Common Pleas In the 26 27 28 29 30th Years of the Reign OF King Charles II. When Sir Fra. North was Chief Justice of the said Court. To which are added Several select CASES in the Courts of Chancery Kings-Bench and Exchequer in the said Years Carefully Collected by a Learned Hand LONDON Printed by the Assigns of Rich. and Edw. Atkins Esquires for Charles Harper at the Flower de Luce over against St. Dunstans Church in Fleetstreet 1698. TO THE Right Honourable JOHN Lord SOMERS Baron of Evesham Lord High Chancellor OF ENGLAND My Lord WHEN both the Favour and Severity of the Laws were by partial and unusual Methods applyed to the Persons and not to the Cases of the accused when the Life and Honour of an unfortunate Man depended on the Arbitrary Dictates of some Men in Authority and when the Sentence pronounced was more Criminal than the Offence of which the Party was too easily convicted then was your Lordship as far from any Advancement to a judicial Office as your Judgment and Inclinations were from the Approbation of such Proceedings But no sooner were places of Honour and Profit in the Law made the unsought Rewards of good and learned Men but your Lordships Merits entituled you to both whose Moderation and Temper will make your Administration just and easie in that honourable Court to which Fortune had no share in your Promotion and whose natural Abilities are so improved by a continued and inflexible Study that your Knowledge is not alone confined to the municipal Laws of this Nation but is generally extensive to all humane Learning What Services may not a Prince expect from the Wisdom and Vigilancy of such a Counsellor And what Benefit may not a divided People find by your equal Dispensation of Justice who if they can be united in any thing it must be in the general Satisfaction which all have in your Promotion because they know those Causes which come before your Lordship will receive a due Hearing and Attention without Passion or Prejudice to Persons such Emotions being as much beneath the Greatness of your Lordships Mind as they are beyond the Duty of Justice and fit only for such who will neither be guided by the Rules of Equity or Reason so true is that Saying Utitur animi motu qui uti ratione non potest The Respect which is due to the Office of Magistrates challengeth an universal Obedience but that particular Affection and Esteem which we have for their Persons is due only to their Vertues and Merits And such is that which I have and all Men especially those of my Profession ought to have for your Lordship and the present Judges in Westminster-Hall whose Learning and Integrity in judicial Determinations may bring the Laws nearer to Perfection and whose Examples are the just Commendation of the present and I hope will be the Imitation of succeeding Ages I could never understand the right meaning of that Sentence Boni Judicis est ampliare Jurisdictionem for if that be true then to what purpose were those Arguments at the Bar of the House of Peers against some late Judges for retaining Bills in Equity the subject Matter whereof was only tryable at the Common Law Such Complaints are now no more because your Lordship will not only support the Honour and Dignity of that Court wherein you preside in the Beauty of Order but will not enjoyn any other from exercising its proper Jurisdiction Thus will the Credit of the Laws of England be revived and Men will acquiesce under the legal Determinations of each Court very few Writs of Error will be brought for Error in Law because of the Justice and Stability of the Judgment in that Court wherein it was given and very few Appeals because your Lordship knows so well how to temper Equity with Justice that he must be a very angry Man who goes away dissatisfied with your Lordships Decree But since the Actions of Men in great Places are subject to the various Censures of Mankind if any prejudiced Person should revive those Disputes or quarrel at your Lordships Administration such Complaints would leave no other Impression upon the Minds of impartial Men than to convince them of the Wrong done to your Lordship and the Folly of such Misapprehensions My Lord I have prefixed your Lordships Name to this mean Performance taking this occasion to shew that great Honour and Respect which I have for your Lordship not that I am so vain to think any thing herein to be worthy of your Lordships Leisure neither do I think it Manners to beg your Lordships Patronage because a good Book will protect it self at all times and a bad one deserves no Protection I know few Books are either praised or perused but what are warranted by the common Repute and Esteem of the Writer which must be imputed to the Prejudice and Partiality of Men and which argues a Diffidence of our natural Parts as if we did not dare to make a right use of our own Judgments For this Reason I have concealed my Name that a Judgment may not be made of the Book by the Repute of the Writer But I hope your Lordship will not condemn my Ambition when I say I am not altogether unknown to your Lordship who am Your Lordships Most humble Servant J. W. Middle-Temple June 22. 1693. A TABLE OF THE NAMES OF THE CASES A. ABbot versus Rugely 307 Abraham versus Cunningham 146 Adams versus Adams 169 Addison versus Otway Mil 233 Alford versus Tatnel 49 Arris and Arris versus Stukley 260 After versus Mazeen 311 Astry versus Ballard 193 312 Atkins versus Bayles 267 Attorny General versus Read Mil 299 ........ versus Turner Mil 106 ....... versus Alston 247 Anonymus 7 17 62 94 100 100 167 199 206 279 293 306 314 316 317 B. BAilies Joan Case 315 Ballard versus Oddey 307 Barker versus Keat 249 Barker versus Warren 270 Barker versus Basket 200 Basset versus Salter 136 Beaver versus Lane 217 Bell versus Knight 182 Benson versus Idle 37 Beaumont versus ...... 140 Bill versus Nichol 246 Birch versus Wilson 274 Birch versus Lingen 316 Blackbourn versus Conset 304 Bridges versus Beddingfield 27 Brittam versus Charnock 286 Brook versus Turner Mil ' 170 Brown versus Johnson 145 Brown versus Waite 130 C. CAlthrop versus Phillips 217 Calthrop versus Heyton 54 Chapter of Southwel versus the Bishop of Lincoln 56 Cockram versus Welby 212 Columbel versus Columbel 77 Cook and others versus Herle 138 Cooper versus Hawkeswel 58 Crosier versus Tomlinson Executor 71 Crossman versus Churchil Mil ' 97 Crowder versus Goodwin 58 Curtio versus Bourn 61 Curtis versus Davenant 8 D. DAshwood versus Cooper 283 Dawes versus Sir Paul Pindar 45 Daws versus Harrison 65 Dorchester's Marquess of Case 215 Dunning

de se by Inquisition and then comes an Act of Indempnity that shall not divest the King of his Right But where nothing Vests before the Office found a Pardon before the Inquisition extinguishes all Forfeitures as it was resolved in Tomb's Case So if the Pardon in this Case had come before the Presentation the Party had been restored Statu quo c. The King can do no more the Bishop is to do the rest neither is the Presentation revoked by this Act it might have been revoked by implication in some Cases as where there is a second Presentation but such a general revocation will not do it and Iudgment was given for the Plaintiff and a Writ of Error brought but the Cause was ended by Agreement Hill versus Pheasant Gaming at several meetings whether within the Statute AN Action of Debt was brought upon the Statute of 16 Car. 2. cap. 7. made against deceitful and disorderly Gaming which Enacts That if any person shall play at any Game other than for ready Mony and shall lose any Sum or other thing played for above the Sum of 100 l. at any one time or meeting upon Tick and shall not then pay the same that all Contracts and Securities made for the payment thereof shall be void and the person winning shall pay treble the Mony lost It happened that the Defendant won 80 l. at one meeting for whcih the Plaintiff gave Security and another meeting was appointed and the Defendant won 70 l. more of the Plaintiff being in all above 100 l. And if this was within the Statute was the Question The like Case was in the Kings-Bench Trin. 25 Car. 2. Rot. 1230. between Edgberry and Roseberry and in Michaelmas Term following this Case was argued and the Court was divided which the Plaintiff perceiving Anonymus Postea desired to discontinue his Action but the better Opinion was that it was not within the Statute though if it had been pleaded That the several meetings were purposely appointed to elude the Statute Sid. 394. in might be otherwise Calthorp versus Heyton Traverse not good viz. Absque hoc quod legitimo modo oneratus IN Replevin The Defendant avowed for that the King being seised in Fee of a Mannor and of a Grange which was parcel of the Mannor granted the Inheritance to a Bishop reserving 33 l. Rent to be yearly issuing out of the whole and alledges a Grant of the Grange from Sir W. W. who claimed under the Bishop to his Ancestors in Fee in which Grant there was this Clause Viz. If the Grantee or his Heirs shall be legally charged by Distress or with any Rent due to the King or his Successors upon account of the said Grange that then it should be lawful for them to enter into Blackacre and distrein till he or they be satisfied And afterwards the Grantee and his Heirs were upon a Bill Exhibited against them in the Exchequer decreed to pay the King 4 l. per Annum as their proportion out of the Grange for which he distreined and so justified the taking The Plaintiff pleads in barr to the Avowry and traverseth that the Defendant was lawfully charged with the said Rent and the Defendant demurred Baldwyn Serjeant maintained the Avowry to be good Ex parte Def. having alledged a legal charge and that the Barr was not good for the Plaintiff traverseth quod Defendens est ligitimo modo oneratus which being part matter of Law and part likewise matter of Fact is not good and therefore if the Decree be not a legal charge the Plaintiff should have demurred But on the other side it was argued by Seys Serjeant Ex parte Quer. That the Avowry is not good because the Defendant hath not set forth a legal charge according to the Grant which must be by Distress or some other lawful way and that must be intended by some execution at Common Law for the coactus fuit to pay is not enough a Suit in Equity is no legal disturbance Moor 559. The same Case is Reported in 1 Brownl 23. Selby versus Chute Besides the Defendant doth not shew any Process taken out or who were Parties to the Decree and a Que estate in the Case of a Bishop is not good for he must pass it by Deed. North and the whole Court A Rent in the Kings Case lies in Render and not in Demand and after the Rent day is past he is oneratus and the Decree is not material in this Case for the charge is not made thereby but by the Reservation for payment whereof the whole Grange is chargeable The King may distrain in any part of the Land he is not bound by the Decree to a particular place that is in favour only to the Purchasor that he should pay no more than his proportion As to the Que estate the Defendant hath admitted that by saying bene verum est that Sir W. W. was seised The Traverse is ill and Iudgment was given for the Avowant Vaughan versus Wood. Trespass justified for taking corrupt Victualls Mod. Rep. 202. TRespass for taking Beef The Defendant pleads a Custom to choose Supervisors of Victuals at a Court Leet That he was there chosen and having viewed the Plaintiffs Goods found the Beef to be corrupt which he took and burned The Plaintiff demurrs for that the Custom is unreasonable and when Meat is corrupt and sold there are proper remedies at Law by Action on the Case or presentment at a Leet 9 H. 6. 53. 11 Ed. 3. 4. 6. Vide Stat. 18 Eliz. cap. 3. But the Court held it a good Custom and Iudgment was given for the Defendant the Chief Iustice being not clear in it Chapter of Southwel versus Bishop of Lincoln Grant of next Avoidance not bind the Successor Mod. Rep. 204. IN a Quare Impedit the Question upon pleading was Whether the Grant of the next Avoidance by the Chapter was good or not to bind the Successor The doubt did arise upon the Statute of 13 Eliz. cap. 10. which was objected not to be a publick * Yelv. 106. Act because it extends only to those who are Ecclesiastical persons or if it should be adjudged a publick Law yet this is not a good Grant to bind the Successor for though the Grant of an Avoidance is not a thing of which any profit can be made yet it is an * Cro. Eliz. 441. Hereditament within the meaning of that Statute by which among other things 't is Enacted That all Grants c. made by Dean and Chapter c. of any Lands Tythes Tenements or Hereditaments being parcel of the Possessions of the Chapter other than for the Term of 21 Years or 3 Lives from the time of the making the said Grant shall be void But it was agreed by the Court to be a general Law like the Statute of Non Residency which hath been so ruled and that this Presentment or Grant

should take revenge themselves for which reasons he held the Action will lye Atkyns Iustice contra This is not a common Action upon the Case but an Action founded upon the Statute of the 2 of R. 2. upon the Construction whereof the Resolution of this Case will depend whether the Action will lie or not And as to that he considered 1. The Occasion 2. The Scope 3. The parts of the Statute 1. The occasion of it is mentioned in Cotton's Abridgment of the Records of the Tower f. 173. nu 9 and 10. At the summoning of this Parliament the Bishop of St. Davids declared the Causes of their meeting and told both the Houses of the Mischiefs that had hapned by divers slanderous Persons and sowers of Discord which he said were Dogs that eat raw Flesh the meaning of which was that they devoured and eat one another to prevent which the Bishop desired a Remedy and his Request seemed to be the Occasion of making this Law for ex malis moribus bonae nascuntur Leges 2. The Scope of the Act was to restrain unruly Tongues from raising false Reports and telling Stories and Lyes of the Peers and Great Officers of the Kingdom so that the design of the Act was to prevent those imminent dangers which might arise and be occasioned by such false Slanders 3. Then the parts of the Act are three viz. reciting the Offence and the Mischief then mentioning the ill Effects and appointing of a Penalty From whence he Observed 1. That here was no new Offence made or declared for nothing was prohibited by this Statute but what was so at the Common Law before The Offences to be punished by this Act are mala in se and those are Offences against the Moral Law they must be such in their nature as bearing of false Witness and these are Offences against a common Person which he admitted to be aggravated by the eminency of the person against whom they were spoke but every uncivil Word or rude Expression spoken even of a Great Man will not bear an Action and therefore an Action will not lie upon this Statute for every false Lye but it must be horrible as well as false and such as were punishable in the High Commission Court which were enormous Crimes 12 Co. 43. By this description of the Offences and the consequences and effects thereof he said he could better judge whether the Words were actionable or not and he was of Opinion that the Statute did not extend to Words of a small and trivial nature nor to all Words which were actionable but only to such which were of a greater magnitude such by which Discord might arise between the Lords and Commons to the great peril of the Realm and such which were great Slanders and horrible Lies which are words purposely put into this Statute for the aggravation and distinction of the Crime and therefore such Words which are actionable at the Common Law may not be so within this Statute because not horrible great Scandals He did not deny but that these were undecent and uncivil words and very ill applied to that honourable person of whom they were spoken but no body could think that they were horrible great slanders or that any debate might arise between the Lords and Commons by reason such words were spoken of this Peer or that it should tend to the great peril of the Kingdom and the quick destruction thereof such as these were not likely to be the effects and consequences of these Words and therefore could not be within the meaning of the Act because they do not agree with the discription given in it 2. Here is no new punishment inflicted on the Offender for at the Common Law any person for such Offences as herein are described might have been Fined and Imprisoned either upon Indictment or Information brought against him and no other punishment is given here but Imprisonment Even at the Common Law scandal of a Peer might be punished by Pillory and loss of Ears 5 Co. 125. De Libellis Famosis 12 Co. 37. 9 Co. 59. Lamb's Case So that it appears this was an Offence at the Common Law but aggravated now because against an Act of Parliament which is a positive Law much like a Proclamation which is set forth to enforce the execution of a Law by which the Offence is afterwards greater He did agree that an Action would lie upon this Statute though there were no express Words to give it to a Peer because where there is a Prohibition and a Wrong and Damage arises to the Party by doing the thing prohibited in such Case the Common Law doth intitle the Party to an Action 10 Co. 75. 12 Co. 100 103. And such was the Resolution in the Earl of Northampton's Case upon construction of the Law as incident to the Statute and as the Offence is greater because of the Act and as the Action will lie upon the Statute so the Party injured may sue in a qui tam which he could not have done before the making this Law 3. But that such words as these were not actionable at the Common Law much less by the Statute for the Defendant spoke only his Iudgment and Opinion and doth not directly charge the Plaintiff with any thing and might well be resembled to such Cases as are in Rolls Abridgm 1 part 57. pl 30. which is a little more solemn because adjudged upon a special Verdict the Words were spoken of a Iustice of Peace Thou art a Blood-Sucker and not fit to live in a Commonwealth These were not held actionable because they neither relate to his Office or fix any Crime upon him Fol. 43. in the same Book Thou deservest to be hanged not actionable because it was only his Opinion So where the Words are general without any particular Circumstances they make no impression and gain no credit and therefore in Cro. Car. 111. 1 Roll. Abridgm 107. pl. 43. You are no true Subject to the King the Action would not lie In this Case 't is said the Plaintiff acts against Law which doth not imply a Habit in him so to do and when Words may as well be taken in a mild as in a severe Sense the Rule is quod in mitiori sensu accipienda sunt Now these Words are capable of such a favourable construction for no more was said of the Plaintiff than what in some sense may be said of every person whatsoever for who can boast of his Innocency who keeps close in all his actions to Law and Reason and to say A Man acts against both may imply that he departed from those Rules in some particular Cases where it was the Error of his Iudgment only In the Duke of Buckingham's Case Sheppard's Abridgment 1 part f. 28. Viz. You are used to do things against Law and mentions a particular fact there indeed because of Usage of the ill practice it was held that an Action lies but if he had been

Profits of a Parsonage as in the Case of a Sequestration upon a Iudgment obtained against a Spiritual Person where a Fi. Fa. is directed to the Sheriff upon that Iudgment and he returns Clericus beneficiatus non habens Laicum feodum for which reason he cannot meddle with the Profits of the Glebe but the Bishop doth it by a Sequestration to him directed He may likewise retain for the supply of the Cure and pay only the residue which hath been omitted on the other side As the Ordinary might dissolve a Vicaridge endowed where the Parsonage was in the Hands of a Dean so he may sequester an Appropriation in any Spiritual Person and there is no Statute which exempts an Impropriation from such a Sequestration because 't is onus reale at the Common Law and as the Lay Impropriator may sue for Tythes and receive them as before the making this Statute 't is as reasonable since he hath the same advantage that he should have the same Charge and the rather because the saving in the Statute of 31 H. 8. cap. 13. doth still continue the same Authority the Bishop had before though the possession was thereby given to the King The Words of which are viz. Saving to all and every person c. such Right which they might have had as if the Act had not been made which must be the Right of the Ordinary and of no other person An Impropriator pays Synodals and Procurations as well as an Appropriation in the Hands of Ecclesiastical Persons and it would be very inconvenient if a Sequestration should not lie which would quicken them more than an Excommunication and it was said that in England there were above 1000 Appropriations belonging to Corporations aggregate as Deans and Chapters which could not be excommunicated and if the Bishop could not sequester then there was no remedy to repair the Chancel For which Reasons Iudgment was prayed for the Defendant But the whole Court besides Iustice Atkins held that the Lay Impropriation was not to be sequestred for the Repairs of the Chancel And the Chief Iustice said that the Repair of the Chancel was an Ecclesiastical Cause but that the Rectory and Impropriator were Lay and not to be sequestred as the possessions in the Hands of Ecclesiastical Corporations may which he did agree could not be excommunicated but the persons who made up such Corporation might And as to the Sequestration upon a Iudgment it made nothing for the Matter to entitle the Ordinary to a Sequestration in this Case because what he doth in that is in the nature of a temporal Officer for the Sequestration is like the Fieri Facias and being directed to the Bishop he is in that Case if he may be so called an Ecclesiastical Sheriff and by virtue thereof may do as the Sheriff doth in other Cases that is he may seise Ecclesiastical things and sell them as the Sheriff doth Temporal things upon a Fieri Facias but 't is to be observed that he must return Fieri feci and not Sequestrari feci upon this Writ And as to the Saving in the Statute that doth not alter the Case for if any Right be thereby saved 't is that of the Parson for the Parishioners have no right to sit there indeed the Vicar may because he comes in under the Parson So that this Case is not to be put as at the Common Law but upon the Statute of Dissolutions by vertue whereof the Rectory being in the Hands of a Lay Person is become a Lay Fee and so cannot be subject to a Sequestration if it should the next step would be that the Bishop would increase Vicaridges as well in the Case of an Impropriation as Appropriation which would lessen the possessions of such as have purchased under the Act. But Iustice Atkins was of a contrary Opinion he said that it was agreed by all that an Impropriator is chargeable with the Repairs of the Chancel but the Charge was not personal but in regard of the profits of the Impropriation which are originally the Debtor according to the first Donation That the primary Rights of Rectories are the performance of Divine Service and the Repairs of the Chancel and that the Profits which are over and above must then go to the Imprpriator and are to be esteemed then a Lay Fée but that those Duties are the first Rights and therefore must be first discharged That this Right this duty of Repairing was certain and therefore shall not be taken away by Implication but by express Words in the Act which if wanting shall remain still and the Parties shall be compelled to repair under the same Penalties as before But admitting it should be taken away yet the saving in the Act extends to the Right of the Parishioners which is not to sit in the Chancel but to go thither when the Sacraments are administred of which they are deprived when 't is out of Repair nor can they have the use of the Church which properly belongs to them because when the Chancel is out of Repair it not only defaces the Church but makes it in a short time become ruinous He denied that a Sequestration in Chancery cannot be pleaded to barr a Trespass at the Common Law for if it be said that the Chancery have issued such Sequestrations it will be as binding as any other Process issuing according to the Rules of the Common Law And he also denied the Case put by the Chief Iustice that the Lands of the Parishioners might as well be sequestred for the repair of the Church as those of the Impropriator for repair of the Chancel because the Profits of the Rectory might originally be sequestred but the Lands of the Parishioner could not and so the Cases are quite different Judgment But in Easter Term following Iudgment was given against the Defendant upon the point of Pleading which the Court all agreed to be ill 1. The Defendants should have averred that the Chancel was out of repair 2. That no more was taken than what was sufficient for the repair thereof 3. For that the Plaintiff had declared for the taking of several sorts of Grain and the Defendant justifies the taking but of part and saith nothing of the residue and so 't is a Discontinuance and the general Words quoad residuum transgressionis will not help because he goes to particulars afterwards and doth not ennumerate all and thereupon Iudgment was given accordingly Edwards versus Weeks ASsumpsit Parol discharge good before breach of Promise but not afterwards Mod. Rep. 262. The Plaintiff declared that the Defendant in consideration that the Plaintiff at his Request had exchanged Horses with him promised to pay him 5 l. and he alledged a breach in the Non-performance The Defendant pleads that the Plaintiff before any Action brought discharged him of his Promise And upon a Demurrer the Question was whether after a breach of a Promise a parol discharge could be good The