mistaken in that Action and being in the wrong was barred but that will be no Bar where a right Action is brought as if I deliver a Bond to another for advice who refusing to redeliver it I bring an Action of Trespass and am barred either by Verdict or Demurrer yet I may bring Detinue Trespass and Detinue are not the same Actions Pro Def. and therefore a Iudgment in one shall be no bar to the other but where two Actions are brought for one thing to be recovered in such case a Recovery in one shall be a bar to the other There is no substantial difference between Trespass and Trover for the disposing of the Goods in the one case is the same with the Conversion in the other the taking vi armis and likewise the Conversion are both tortious and therefore either Action may be well brought But for the Reasons given by the Plaintiffs Council he had Iudgment by the Opinion of the Chief Iustice and the other two Iudges Jones and Raymond of which Iustice Dolben did very much doubt Dominus Rex versus Sir Robert Atkins Knight of the Bath al' AN Indictment was found at the Quarter Sessions held for the County of the City of Bristol 4 Octob. 33 Car. 2. The County of the City of Bristolâ— against Sir Robert Atkins Knight of the Bath and Recorder and Senior Alderman of the said City Sir John Knight Alderman John Lawford Alderman and Joseph Creswick Alderman setting forth 1. That King Henry the VII th by his Charter dated 17 Decemb 15 Regni sui granted to the Mayor and Commonalty of the Town of Bristol the now City of Bristol being then a Town and to their Successors That if any shall procure abett or maintain any Debate and Discord upon the Election of the Mayor or other Minister he shall be punished instantly by the Mayor and two Aldermen to be chosen and named by the Mayor after the quantity and quality of his offence according to the Laws and Custom of the Realm 2. That according to the Priviledges granted by Queen Elizabeth to the Mayor and Commonalty of the said City and their Successors by Charter dated 28 June 23d of her Reign After which time as the Indictment sets forth the said Town was made a City there have been or ought to have been from the time of the making the said Charter twelve Aldermen whereof the Recorder was to be and now is one 3. That according to the Priviledges so as aforesaid granted by all the time aforesaid which is from the time of the Charter after the death of every Alderman the Mayor and the rest of the surviving Aldermen eorum major pars ad summonitionem of the said Mayor being called together have accustomed to choose another person of the circumspect Citizens to be an Alderman in the place of him so deceased and the Mayor and Aldermen by the same Privileges so granted have been and ought to be Iustices of the Peace for the said City 4. That continually after the time of the said Charter of Queen Elizabeth the Recorder and the rest of the Aldermen were and ought to be of the Privy Council de privato Concilio of the Mayor in particular Cases concerning the Government of the City whensoever the Mayor shall call them together And such Privy Council by all the time aforesaid which still is from the said Charter of Queen Elizabeth have not accustomed nor ought not to be called together to transact any Business belonging to that Council unless by the Summons and in the presence of the Mayor That after the death of one Sir John Lloyd being at his death an Alderman of the said City the said Sir Robert Atkins then being Recorder Sir John Knight John Lawford Esquire and Joseph Creswick being all Aldermen then of the City and free Burgesses of the City to make debate and discord upon the Election of an Alderman in the place of the Alderman so dead 8 March 33 Car. 2. in the Parish and Ward of St. Andrew within the said City did conspire to hold a Privy Council of the Aldermen of the said City and therein to choose an Alderman sine summonitione in absentia contra voluntatem Richardi Hart Militis then being Mayor of the City And in pursuance of their said wicked Conspiracy the day and year aforesaid entred by force and arms into the Tolzey and in the Chamber of the Council of the Mayor and Commonalty of the said City commonly called The Council House and there riotously c. did assemble and the same day and year they the said four Aldermen una cum aliis Aldermannis which must be two more Aldermen at the least which makes six and there were but five more in all then in being taking the Mayor in the said rest of the Aldermen not knowing their purposes held a Privy Council of Aldermen and then and there as much as in them lay chose Thomas Day for an Alderman in the place of Sir John Lloyd sine aliqua summonitione per praedictum Richardum Hart then Mayor to meet and in his absence and against his Will And they farther caused to be entred in the Common Council-Book the said Election as an Order of the Privy Council in which Book the Acts of the Mayor and Aldermen in their Privy Council are commonly written from whence great Discord hath risen c. Which Indictment was tryed at the Assises at Bristol by Nisi Prius and the Defendants found guilty and thereupon Sir Robert Atkins one of the Defendants having then lately before this Case been one of the Judges of the Common Pleas but then discharged of his Place after eight years sitting there secure came into the Court of Kings Bench and in Arrest of Iudgment argued his own Case not as Council nor at the Bar but in the Court in his Cloak having a Chair set for him by the Order of the Lord Chief Iustice and said as followeth 1. The Indictment in the first place mentions the Letters Patents of King H. 7. made to the Mayor and Commonalty of Bristol that the Mayor with two Aldermen such as he should choose should by their discretions according to Law punish such as should make debate and discord at the Elections of Officers They have not pursued this course against us but gone the ordinary way of Indictment and therefore I shall not need to speak to it 2. The Indictment in the next place proceeds to mention Letters Patents of Queen Elizabeth granted to the Mayor and Commonalty in the 23d year of her Reign which provides that there shall be twelve Aldermen and how upon the death or removal of an Alderman a new one should be chosen that is by the Mayor and the surviving Aldermen and the greater number of them being call'd together as the Indictment suggests by the Summons of the Mayor The whole Indictment and the Offence we are charged with being
the Court of Arches the Case was Prohibition not granted where a temporal loss may ensue The Plaintiff was presented by the Mayor and Aldermen of Bristol to the Parish Church of Christ-Church in the said City and the Defendant libelled against him because he was not 23 years of Age when made Deacon nor 24 when he entred into the Orders of a Priest 13 Eliz. c. 12. and the Statute requires that none shall be made a Minister or admitted to preach being under that Age. The reason now alledged for a Prohibition was because this Matter was triable at Law and not in the Spiritual Court because if true a Temporal Loss viz Deprivacion might follow But the Court denied the Prohibition and compared this Case to that of a Drunkard or ill Liver who are usually punished in the Ecclesiastical Courts though a temporal loss may ensue and if Prohibitions should be granted in all Cases where Deprivation is the consequence of the Crime it would very much lessen the Practice of those Courts David Burgh 's Case THE Parishioners of St. Leonard Foster Lane gave this Man who had a Wife and five Children 5 l. in Mony to remove into another Parish upon Condition that if he returned in 40 days that he should repay the Mony he removed accordingly and stayed away by the space of 40 days the Parish to which he removed obtained an Order upon an Appeal for his settlement in the last Parish where he was lawfully an Inhabitant which Order being removed into this Court and the Matter appearing thus upon Affidavits they declared their Opinion only upon the Order to remove viz. That the Man had gained a Settlement in the Parish to which he removed for he being an Inhabitant there for so long time as was required by Law to make a Settlement and not disturbed by the Officers they were remiss in their Duty and the Court would not help their negligence DE Term. Sanctae Trin. Anno 1 Jac. II. in Banco Regis 1685. Dominus Rex versus Dangerfield THE Defendant was convicted of publishing a Libel wherein he had accused the King when Duke of York that he had hired him to kill the late King Charles c. And on Fryday June 20. He was brought to the Barr where he received this Sentence viz. That he should pay the Fine of 500 l. That he should stand twice in the Pillory and go about the Hall with a Paper in his Har signifying his Crime That on Thursday next he should be whipped from Algate to Newgate and on Saturday following from Newgate to Tyburn which Sentence was executed accordingly and as he was returning in a Coach on Saturday from Tyburn one Mr. Robert Frances a Barrister of Greys-Inn asked him in a jeering manner whether he had run his Heat that day who replied again to him in scurrilous words whereupon Mr. Frances run him into the Eye with a small Cane which he had then in his Hand of which wound the said Mr. Dangerfield died on the Monday following Mr. Frances was indicted for this Murder and upon Not-guilty pleaded was tried at the Old-Bayly and found guilty and executed at Tyburn on Fryday July the 24th in the same year Mr. Baxter's Case HE was a Nonconformist Minister against whom an Information was exhibited for writing of a Book which he Entituled A Paraphrase upon the New Testament and the Crime alledged against him in the said Information was That he intending to bring the Protestant Religion into contempt and likewise the Bishops innuendo the Bishops of England did publish the Libel in which was contained such words c. setting forth the words He was convicted And Mr. Williams moved in arrest of Iudgment that the words in the Information and the Bishops therein mentioned were misapplied to the Protestant Religion and the Bishops of England by such Innuendoes which could not support this Charge against the Defendant That the Distringas and Habeas Corpora were inter nos Richardum Baxter which could not be because the Information was exhibited in the name of the Attorney General But the Court over-ruled these Exceptions and said that by the word Bishops in this Information no other could be reasonably intended but the English Bishops thereupon the Court fined him 500 l. and ordered him to give Security for his Good Behavior for seven years Procter versus Burdet AN Action of Covenant was brought by an Apprentice setting forth the Indenture by which the Defendant In Covenant the Breach was generally assigned and held good his Master had covenanted to find and allow the Plaintiff Meat Drink Lodging and all other things necessary during such a time and the Breach was as general as the Covenant viz. That he did not find hind him Meat Drink Lodging alia necessaria The Plaintiff had Iudgment by Nil dicit and upon a Writ of Enquity brought entire Damages were given against the Defendant And in a Writ of Error upon this Iudgment the Error assigned was that the Breach was too general and that entire Damages were given amongst other things for alia necessaria and doth not say for what 2 Cro. 436. Astel versus Mills and a Case was cited in the Point in Trinity-Term 16 Jacobi where the Iudgment was reversed for this very reason The Council contra argued that that which is required in an Action of Covenant is that there may be such a certainty as the Defendant may plead a former Recovery in Barr if he be sued again and therefore one need not be so particular in assigning of the Breach upon a Covenant as upon a Bond for in a Bond for performance of Covenants where there is a Covenant to repiar if it be put in suit 't is not sufficient to say That the House is out of repair but you must shew how but in a Covenant 't is enough to say That it was out of repair If in this Case the Plaintiff had shewed what necessaries were not provided for him Kelway 85. it would have made the Record too long and therefore 't is sufficient for him to say that the Defendant did not find alia necessaria That Case in 2 Cro. 2 Cro. 304 367. 1 Rol. Rep. 173. 3 Bulst 31. 2 Saund. 373. has since been adjudged not to be Law for many contrary Iudgments have weakened the Authority of it viz. That the Breach may be assigned as general as the Covenant as where a Man covenanted that he had a lawful Estate and Right to let c. the Breach assigned was that he had no lawful Estate and Right to let c. and doth not shew that the Lessor had not such Right or that he was evicted yet it was held good Curia In a Quantum meruit they formerly set out the Matter at length but now of late in that Action in general Words and also in Trover and Conversion pro diversis aliis bonis hath been held good which is as
grounded upon these Letters Patents I shall apply my self to speak to it for our Crime is in the undue electing of an Alderman namely not being summoned together for that purpose by the Mayor and doing it in his absence I must desire the Court to observe in what manner the mention of these Letters Patents is introduced The Matter and Question before us is concerning the Election of an Alderman for the City of Bristol which concerns the very being and succession and continuance of the Corporation Nothing can more nearly concern it The defects I observe in the frame of this Indictment are these 1. It does not so much as say or alledge that Bristol is antiqua Villa or antiqua Civitas or that there was or yet is any Corporation at all there nor what it does consist of if there be any nor by what name they are called whether there ought to be a Mayor or not whether their Corporation be by Charter or Prescription And this Court cannot judicially take notice that there is any Corporation there or what it is unless it had been shewn Now if there be no Corporation and no Mayor of right then our meeting to choose an Alderman without his Summons and in his absence is no undue nor irregular Proceeding It cannot appear to the Court whether the Mayors Summons and presence at the Election be necessary or not Now in all legal Proceedings that any way concern a Corporation it is constantly averr'd and alledged that there is a Corporation and what it is and how erected and the least that can be in any Case is to say that it is antiqua Villa or antiqua Civitas where the Corporation extends to a Town or City which make any Prescription or set forth any Custom Thus we find it in the Case of the City of York Dyer 279. plac ' 10. in the Case of a Custom of Foreign bought and Foreign sold They Prescribe in being a Corporation So in Latches Rep. 229. Harris's Case In James Bagg's Case 11 Co. f. 94. A Case of a Writ of Restitution to Restore a Capital Burgess to his Place and Office of a Capital Burgess in Plimouth the Writ was directed to the Mayor and Commonalty of Plimouth the very Words of the Writ suppose a Corporation and shew what their Name is The Return thereupon by the Mayor and Commonalty is That Queen Elizabeth granted to the Mayor and Commonalty that the Mayor and Recorder should be Iustices of the Peace and that James Baggs was a Capital Burgess and did misdemean himself towards the Mayor and thereupon he was disfranchised In the printed Margent of that Case which I suppose is my Lord Cokes own Opinion it is said That in their Return they first ought to prescribe That there hath been a Corporation of a Mayor and Commonalty time out of the Memory of Man and not to begin with the mention of a Grant made to a Coporation as the Indictment does in our Case and not shew the Original and Erection of it either by Prescription or Charter And Mr. Trotman a Learned Man in his abridging of James Bagg's Case bids his Reader observe this Marginal Note Yet in that Case the Return was but in answer to the Writ of Restitution which Writ it self admitted there was a Corporation and directs the Writ to them by Name yet by the Opinion there it was a defect in the Return not to shew that they were by Prescription And if it be necessary upon a Return of a Writ of Restitution to set forth how they came to be incorporated to which Return there can be no Traverse taken nor no pleading to it as has been held by some how much more in such a Case as ours of an Indictment which must be traversed and pleaded to and therefore ought to be more exact That was in a Case of removing of a chief Member a Capital Burgess of a Corporation ours is in a Case of the choosing in of a chief Member an Alderman into a Corporation so that ours is much resembling that Case in that respect 2. Another thing wherein the Indictment is faulty is this viz. In the manner of introducing the mention of these Letters Patents of Queen Elizabeth upon which the Indictment is grounded and upon the Construction of which the Case depends The Indictment does not say positively and directly that Queen Elizabeth made or granted any Letters Patents to the Mayor and Commonalty of Bristol That there should be twelve Aldermen and for the appointing how they should be chosen upon which our Case arises nor does it so much as say continetur which would not have been enough neither but it introduces the mention of those Letters Patents no otherwise than by these Words viz. Secundum Privilegia concessa per Literas Patentes c. There were or ought to be twelve Aldermen Et secundum eadem Privilegia sic ut praefertur concessa per totum tempus praedictum after the death of an Alderman the Mayor and the surviving Aldermen eorum major pars ad summonitionem ejusdem Majoris convocati eligerunt eligere consueverunt c. Now this is no positive and direct shewing that there ought to be any Aldermen nor how they should be chosen but it is no more than the Opinion and Conceit of the Iury that found the Indictment upon their perusal of the Letters Patents which were produced in Evidence to them the Iury take it by way of Collection out of a Record of which they are no proper Iudges And this being in an Indictment which is the Kings Declaration and ought to be very exact and certain and which is in a criminal proceeding to which the Parties must plead and if convict are liable to Fine and Imprisonment the Law is more curious in this than where Parties do agree civiliter That all Criminal Proceedings must be very exact and certain is proved by this viz. None of the Statutes of Jeofails would ever help them but by express Words except and exclude them from the benefit of them It is said in Long 's Case 5 Co. 120 121. That If in Declarations between Party and Party for Lands or Goods there must be great certainty expres'd a fortiore says that Case must it be so in Indictments which are the Kings Counts or Declarations to which the Party shall answer they ought to be full and not taken by Intendment or to be by way of Argument so it is held in Leeches Case Cro. Jac. 167. and in Sir William Fitz-Williams's Case Cro. Jac. 19 20. Object If it be objected That the Indictment is but the finding of a Iury who are the Lay-gentz as we call them and they know not the forms of Law Answ The Fact indeed is found by the Iury but the constant course is to have the Iury consent to mend the Form and the Kings Council are addised-with in the drawing of it and after 't is found and sometimes the Iudges
peruse it The Indictment proceeds on and says That continually after that time which must refer to the date of the Letters Patents of Queen Elizabeth the Recorder and the rest of the Aldermen were and ought to be de privato Concilio I have been Recorder there above these one and twenty years and never knew my self to be a Privy Councellor till now But the Indictment unhappily says de privato Concilio Majoris there the Word Majoris as big as it is is but Terminus diminuens it makes us but Privy Councellors to the Mayor But this is a mistake too for the Recorder and Aldermen are not a Privy Council to the Mayor but the Mayor and they are a Council to the City The like to this too appears in the printed Margent of James Baggs's Case The Clerk who drew this Indictment or the Council who ever it was thought they could not exalt the Mayor of Bristol high enough unless they made him a Prince and furnished him with a Privy Council and to fill the Kingdom again with a great many Reguli or petty Kings as it was amongst the Britons before the coming of the Romans It is part of the Misdemeanour charged upon James Baggs that he did Ironically say to the Mayor of Plimouth You are some Prince are you not Now to say it to a Mayor in good earnest as this Indictment does I take to be much worse 3. The Indictment having made the Recorder and Aldermen to be of Mr. Mayors Privy Council it goes on and lays it down for Law or Vsage That by all the time aforesaid which is still from the date of the Patent of Queen Elizabeth such Privy Council have not accustomed nor ought not to be called together to transact any Business that belongs to the Council we must suppose the choosing an Alderman is such Business unless by the Summons and in the presence of the Mayor But upon what ground does the Indictment lay this down for a Rule Is it because the Letters Patents so direct If so I agree it is a clear Case for the Letters Patents that create a Corporation may mould and frame and form its own Creature as it pleases But then the Indictment ought to have alledg'd it positively that the Letters Patents do so provide which it does not but the Indictment speaks it by a kind of implication and uncertainty but not positively nor directly It says that continually after the time of the Charter they have not accustomed to meet without the Mayor's Summons and in his presence It may be they relye upon the Usage and Custom for it This can be no legal Custom nor Prescription for we know the Head and Original of it which is but from the 23th year of Queen Elizabeth so that 't is not like the River Nile If they say the Usage shall interpret the Charter I answer Vsage may expound very ancient Charters where the words are obsolete and obscure and may bear several senses but this Charter has not so much as ambiguous Words nor any thing that can hear such a Construction But at last we shall be told That the Common Law does operate with the Charter and requires the Mayor's Summons and Presence to the choice of an Alderman and also in all such like Cases This is now the only Point to be spoken to and I shall apply my self to it I think it will be granted That the Mayor has no Negative Voice in the Election of an Alderman as great a Prince and as absolute as the Indictment will make him he has but one single Voice and if the majority of the Votes be against his Vote the majority must carry it against the Mayor The Words of the Charter do no more require the Mayor's Summons and Presence than it does that of the senior Alderman The Mayor is named in the Grant out of necessity it being part of the name of the Corporation to whom the Grant must be made He is named out of Conformity too he many times being none of the Aldermen and therefore could not be included in the naming of Aldermen but must therefore be named by himself And besides I agree it is due to him out of Reverence They usually say He represents the King but that is but a Notion and a Complement to him he has no more power than an Alderman who is a Iustice and a Iudge of the Goal-Delivery as well as the Mayor If the Charter had intended That there can be no chusing of an Alderman but by the Summons of the Mayor and in his presence it would surely have made him of the Quorum in that Clause that provides for the Election of an Alderman but that it does not The only Quorum is not of the sort of Persons but of the majority of the Electors Major pars eorum having mentioned before the Mayor and Aldermen Nay there is something to be observ'd out of the Charter it self which proves that the Queen intended no such thing and that is there are other Clauses in the same Charter to other purposes that do expressly appoint Quorums and the Mayor and Recorder are made to be of the Quorum which proves That where it is not so expressed the Mayor himself is not of the Quorum and this indeed led us to that Opinion and Construction that we proceeded to make our Election upon it A Charter in one Clause of it is best Expounded from other Clauses in the same Charter In the Clause that gives them power of Gaol-Delivery the Mayor and Recorder are both of the Quorum So in the Swearing of a New Alderman it is expresly provided that it shall be done before the Mayor and Recorder both In the Clause that gives them power to Try Felons and to keep a Sessions of the Peace it appears by the express Words That it may be done in the Mayor's absence and without him for there the Quorum for that purpose is The Mayor and Recorder or one of them So that a Sessions may be held without the Mayor yet I would never do it if I could prevail with the Mayor to joyn with us as we earnestly endeavour'd time after time to do in the Case before you for the chusing of an Alderman but he utterly refus'd us at four several times at some good distance of time Object If it be said That the power to elect an Alderman is given to the Mayor and Aldermen or the major part of them and so the Mayor by himself is particularly and expresly named by the Name of his Office and therefore is of the Quorum without any other express making of a Quorum Resp This I have already spoken to viz. upon what account he is so named and it could not be otherwise But that this does not so make him of the Quorum in it is manifest by this that those other Clauses where there are express Quorums of persons tho' the Mayor be there likewise mention'd in the beginning
of the Clauses yet he is repeated over again when they come to make him of the Quorum This shews the naming him before by his Office did not do it if it did the naming of him again in the Quorum will be a Tautology and a vain Repetition But perhaps it will be said It belongs to the Office of a Mayor at the Common Law to summon the Corporation and amongst the rest the Aldermen when he sees there is occasion and he must as Mayor be present among them or nothing can be done Let us examine the truth of this Those that advis'd the Indictment were not of this Opinion and I heard it was said at the Tryal that it was drawn with good advice for the Indictment it self challenges this Right to the Mayor upon another ground It would intimate as if the Words of the Charter gave it him as I have already observ'd which says that secundum privilegia concessa est therefore they thought it was not his due at the Common Law 1. For his Name of Mayor that imports no such thing He is Major that is the Greater the more Eminent this notes his pre-eminence in Respect and Reverence but gives him little more of power than what the rest of the Aldermen have The like Office among the old Romans was the Praetor which as Minsheu says comes from prae-itor a prae-eundo he does praeire or praecedere or praesidere He goes first and sits uppermost but it gives him no more power But the Mayor in our Case would neither lead nor drive But if there can be no Election of an Alderman without his Summons and Presence and if he be wilful as the Mayor in our Case was he is not only Major Maximus but Dominus fac totum as the vulgar Saying is or Dominus faciens totum The twelve Aldermen without him will be but so many Cyphers the Mayor will be the Great Figure and the Aldermen will signifie only in conjunction with him We may then say of every Alderman as the one Grecian Captain said of the other of Ulysses Nihil est Diomede remoto Mr. Mayor will be that which the Logicians call Causa sine qua non quae per se nihil facit sed tantum esse aliquid sine qua Reliquae causae non faciunt So much for his Name and Title Then for the Office it self That does not require his Summons nor Presence in all the meetings of the Aldermen for the Business of the Corporation it is not incident nor essential to his Office of Mayor by the Common Law The Common Law looks upon him as the Head or Chief of a Corporation but he is no Officer of the Common Law to whom the Common-Law limits or prescribes any Duty as it does to a Iudge a Sheriff a Conservator of the Peace a Coroner or a Constable These are all Officers at the Common Law and the Common-Law instructs them in their Power and Duty But the Mayor being the Head of a Corporation and a Corporation having its essence by Charter or Prescription which presupposes a Charter he has no power but what the Charter expresly gives him The Common Law takes no farther notice of him Let us examine the Ground and Nature of a Corporation and there we shall find the true Nature and Office of a Mayor or any other Head for 't is all one The true Ground and Original of Corporations in Cities and great Towns is this Those are generally the Staples of Trade and Merchandize and Trade as is said in the Case of the City of London 8 Co. 125. a. cannot be maintain'd without Order and Government And therefore the King for the Publick Good may exect Gildam Mercatoriam a Fraternity or Society or Incorporation of Merchants to the end that good Order and Rule shall be by them observ'd for the Encrease and Advancement of Trade and Merchandizing Suppose the King should by his Charter Encorporate a Town by the Name of Mayor and twelve Aldermen and should not set out their Duty and Office What power would the Law give them in that Case They would have no power as Conservators of the Peace or as Iustices of the Peace They could neither Fine or Imprison If they should take upon them to meddle in these matters without express power given them by the words of the Charter It would be Sutor ultra Crepidam Therefore Charters usually add these Powers by express Clauses to those purposes and make the Mayor a Iustice of Peace or a Iudge of Goal-Delivery but then he acts in those Powers not Quatenus Major nor eo nomine but because of the express power given him as it might have done to any other Man The uniting the Powers in one person does not confound the several and different Capacities of that person That the Charter gives the only Rule in these Cases and that a Corporation is a meer Creature of the Charters that does constitute it and gives it it's Being and therefore the Bounds and Limits of it's working appears by this Suppose that neither this nor any other Charter had given to this Corporation of Bristol any power to choose a new Mayor or new Aldermen upon the Death of the old they could then have made no new Election but when the Mayor and Aldermen had died the Corporation had been dissolv'd The Charter that gives them their Being must provide for their Continuance and Succession Thus it is held in the Case of the Corporation of Dungannon in Ireland in those Reports that go by the Name of the Lord Coke 's 12 Rep. 120 121. So that the Charter must provide for an Election in order to a Succession or otherwise the Law will not help them And though the Mayor is the more Eminent and Excellent and ought to have greater respect and reverence yet the subject matter that we are upon is to be consider'd in the nature of it viz. The Election of an Alderman It is not a matter of Interest or of Privilege or of Power for then the Mayor ought to be preferr'd in it But it is matter of Duty and Labour and Trust and Trouble It is Officium not Dominium to choose an Alderman It is rather a Burthen than a Power or Authority as is said in the Mayor of Oxford 's Case in Latches Rep. 231. But then it will be ask't that if it depend upon the Charter and not upon the Common Law Who shall appoint the time of Election if the Charter be silent in it as here it seems to be This will be a great defect and so there will be no meeting nor no Election and so the Corporation will expire To this I Answer That the Charter does provide for it for those whose Duty it is to make an Election it is their Duty to agree to meet for that purpose and to appoint the time or else they do not discharge their Duty They break their Oath and are punishable for their Omission and
Election And this Indictment is found before Mr. Mayor our Fellow Iustice and four more at the most so that five who are the lesser number exercise their Authority over those that were six in number when they acted which fix were as much Iustices of the Peace as they five It is observable that tho' we were six of us and all unanimous in our Election yet they have politickly Indicted but four of us and left two out because it would have been too gross and palpable if six Iustices of Peace should have been indicted before a lesser number of their Brother Iustices But had they Indicted all six it would then plainly have appear'd too that the choice had been made by the greater part which they wisely thought to conceal but yet it does appear in their very Indictment though darkly couch'd in it for it says that we four being Recorder and Aldermen Cum aliis Aldermannis did chuse the Alderman that word Aldermannis being in the Plural Number must be two more at least If it shall be adjudg'd that we cannot chuse an Alderman but by the Mayor's Summons and in his presence these Mischiefs will follow That he will wholly govern and dispose of Elections at his single will and pleasure for he that can order the time as he pleases and forbear to summon the Electors till he sees his own opportunity and advantage tho' often desired to go on upon it and refuses to do it time after time till such as will not comply with him be out of the way as the Recorder is very seldom there and tarries but a night or two and then is in a hurry of Business and most of the Aldermen are often at their Country Houses the Mayor will cast the choice upon whom he thinks fit as in this case he has done This Mayor and four Aldermen have rejected the choice made by six and of the person that was next in course and every way qualified And yet the Charter thought not fit to trust any fewer than the Mayor and the whole Bench of Aldermen in a matter of this importance to the City If it be said That in case the Mayor unreasonably defer it we may complain to this Court viz. the King's-Bench and have a Mandamus or apply our selves to the King and Councel to compel him to proceed to an Election Who will be at so great a charge and trouble And that course is not so speedy it may chance to be in a Vacation but let it be as speedy as can be the Mayor in the mean time has obtain'd his Ends and gain'd his Opportunity and done his Work as the Mayor in our Case did where the Mayor and four more but five in all being minor pars have controll'd the choice made by the major pars If it shall be said That if the major pars be present and join in Voting to an Election tho' they divide in the person yet the major pars so met shall make a good Election and in Law it shall be the choice of all present That I must deny for the words of the Charter are That the major pars superviventium shall make the choice that is as I understand it agree in their Votes or Voices in the Party chosen and so it was in the choice that we six made This agrees with the Rules of the Common Law in Elections and Leases to be made by Corporations Dyer 247. plac 74. and Sir John Davies Rep. 47. And this agrees with the Statute of 33 H. 8. cap. 27. But if this should not be Law as I take it is yet the subsequent Election of an Alderman made by the Mayor and four Aldermen more cannot be good for though the Mayor and seven Aldermen were present at it yet three of them did not join in going then to an Election for they had join'd with us before in our choice and therefore oppos'd any after Election to be made But they have gotten a conceit among them at Bristol that what is done in a Man's presence where his presence is requir'd by their Charter tho he dissent and oppose what is done is yet legally done As in the Case of the Swearing of an Alderman by the express words of the Charter it cannot be done but before the Mayor and Recorder both This Sir Richard Hart was duly chosen an Alderman long ago but not sworn until the last Gaol-Delivery when we were going to Try the Felons I being present they thought that sufficient to satisfie the Charter and in a Tumultuous manner with an hideous noise they cryed out to swear him and this was not the usual place neither for it I oppos'd the Swearing of him and I will justifie it that he was utterly unfit to be Sworn by something that happenn'd since his being Elected an Alderman they would not hear me but resolv'd to proceed to swear him because I was present with the Mayor Thereupon I withdrew and in my absence they went on to swear him and he now acts as an Alderman and as a Iustice of Peace under this colour If no Election of an Alderman can be made but in the Mayor's presence it will be in the power of one single person if he be obstinate and wilful to forfeit the Charter For if he find the Aldermen like to chuse contrary to his mind he need but with draw and all the rest are insignificant persons and so there shall be no Election in any reasonable time and thereby the Liberties forfeited If this absolute power allow'd to Mayors may serve a politick Turn for once it may do as much Mischief another time for he may be of a contrary and cross humour to what may be desir'd And he is not a person nominated by any superiour power to that place or impos'd upon the Corporation but chosen from amongst themselves and chosen by themselves But tho' they chuse him yet it is not safe to trust all the Liberties of the City in the Breast of one Man for one man may easily change and be wrought upon where many cannot It is better to trust twelve than one The Right of Election is a very tender thing and it is a Maxim at the Common Law and strengthned by several Acts of Parliament That Elections should be free By the Stat. of Westm the 1st in the time of that Wise and Excellent King Edward the I. It is Enacted That Elections be free And it forbids under a grievous Penalty those are the words that nul haut home no great Man such as every Mayor is in his sphere shall disturb to make free Election Sir Edward Coke in his 2 Inst f. 169. in his Exposition of that Statute says it extends to all sorts of Elections and agreés with the Maxim of the Common Law Now if the Mayor shall at three several times refuse the advice and desire of the Aldermen and knowing that they can make no choice without him refuse to join with them till he
Sir Edward Herbert who was removed into the Common Pleas and made Chief Justice there and Sir Francis Wythens had his Quietus the Night before The same 21st day of April after this Removal the Souldier was brought again to the Barr and upon the Motion of Mr. Attorny was ordered by the new Chief Iustice to be executed at Plymouth which was done accordingly Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Monday May 2d NOTA. A Writ of Error was brought upon a Iudgment given in this Court returnable in Parliament which was Prorogued from the 28th day of April to the 22d day of November following Sir George Treby moved that it might be discharged for it could not be a Supersedeas to this Execution because there was a whole Term which intervened between the Teste and Return of the Writ of Error viz. Trinity-Term On the other side it was said that the Proclamation was no Record it only shews the present Intention of the King which he may recal at any time But the Court made no Rule DE Term. Sanct. Trin. Anno 2 Jac. II. in Banco Regis 1686. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Sawyer Attorny General Powis Sollicitor General The Company of Merchant Adventurers versus Rebow IN a special Action on the Case Whether the King hath a Prerogative to restrain Trade to a particular number of Men. the Plaintiffs declared that in the Reign of H. 4. there was a Society of Merchants Adventurers in England and that afterwards Queen Elizabeth did by her Letters Patents incorporate them by the Name of the Governour and Company of the Merchants Adventurers c. and gave them Priviledge to trade into Holland Zealand Flanders Brabant the Country belonging to the Duke of Lunenburgh and Hamburgh prohibiting all others not free of that Company by virtue whereof they did trade into those parts and had thereby great Priviledges and Advantages that the Defendant not being free of the said Company did trade into those Parts without their authority and imported Goods from thence into this Kingdom ad damnum c. The Defendant pleaded as to Hamburgh Not-guilty 15 E. 3. c. 3. and as to the other places he pleaded the Statute of Ed. 3. That the Seas shall be open to all Merchants to pass with their Merchandize whither they please The Plaintiff demurred and the Defendant joined in Demurrer This Case was now argued by Councel on both sides The Councel for the Plaintiff in their Arguments made these Points 1. What Power the King had by his Prerogative to restrain his Subjects from trading to particular places 2. Admitting he had such a Prerogative whether an Action on the Case will lie As to the first Point it was said Magna Charta cap. 30. 2 Inst 57. that all Trades must be under some Regulation and that the Subject hath not an absolute power to trade without the leave of the King for it is said in our Books Omnes Mercatores nisi publice prohibiti fuerint habeant salvum securum conductum which is meant of Merchant Strangers in Amity with us and nisi publice prohibiti must be by the King Now if Merchants Strangers may be prohibited from coming into England by the same reason the Kings Subjects may be restrained to go out of the Kingdom and for that purpose the Writ of Ne exeat Regnum was framed F. N. B. 85. 3 Inst 179. which is grounded upon the Common Law and not given by any particular Statute The Kings Prerogative in this and such like Cases is so much favoured by Law 1 Leon. 9. More 172. that he may by his Privy Seal command any of his Subjects to return out of a Foreign Nation or seize their Lands The first Statute which regulates Trade is 27 E. 3. cap. 1. that which confined the Staple to certain places that persons might not go about in Companies to trade without the King's Licence and from thence came Markets and if such were kept without the King 's Grant a Quo Warranto would lie against them who continued it and the People who frequented those Markets were punishable by Fine The Law is plain F. N. B. 125. 2 Roll. Abr. 140. that the King is sole Iudge of the place where Markets shall be kept for if he grant one to be kept in such a place which may not be convenient for the Country yet the Subjects can go to no other and if they do the Owner of the Soil where they meet is liable to an Action at the Suit of the Grantee of the Market A Custom to restrain a Man from the exercising of his Trade in a particular place hath been adjudged good Sir G. Farmer 's Case cired in 8 Co. 127. as to have a Bake-house in such a Mannor and that no other should use that Trade there And as a Man may be restrained by Custom so he may restrain himself from using of a Trade in a certain place 2 Cro. Brown versus Joliffe as if he promise upon a valuable consideration not to use the Trade of a Mercer in such a place And 't is very necessary that Trade should in some measure be restrained so as to be managed only by Freemen because 't is of more advantage to the King that it should be carried on by a Company especially in London who may manage it with Order and Government that is by some power to restrain particular persons from that Liberty which otherwise they would use and therefore such Companies have always power to make By Laws to regulate Trade which is the cheif End of their Incorporation And if such Corporations have power to judge and determine who are fit persons to exercise Trades within their Iurisdiction the King hath certainly a greater Prerogative to determine which of his Subjects are fit to trade to particular places exclusive from the Rest That the Governors of Corporations have taken upon them such Authority appears in Townsend's Case Sid. 107. who served an Apprentiship to a Taylor in Oxford and was refused by the Mayor to be made a Freeman of that City which shews that if a person be not qualified he may be excluded This is a very ancient Company for Cloth was first brought into this Realm in the Reign of Ed. 3. and was always under some Government My Lord Rolls quoting the Parliament Roll of H. 1 H. 5. no. 41. 2 Abr. Roll. 174. placit 39. 5. wherein the Commons pray that all Merchants might import or export their Goods to any place except such as were of the Staple paying the Customs takes notice that this Prayer was made against the Companies which prohibited such Trading This shews that even in those days Trade was under a Regulation King Ed. 34 E. 3. c. 18. 38 E. 3. c. 11. 3. gave Licence to all Merchants Denizens who were not Artificers to go into Gascoigne for Wines
Case Plea where it amounts to the general Issue wherein the Plaintiff declared that the Defendant exhibited a Peittion against him and Sir R. H. before the King in Council by reason whereof he was compelled to appear at his great Expence and that he was afterwards discharged of the matter alledged against him which was the erecting of Cottages in Kingswood Chase in the County of Gloucester This Action was first laid in Gloucestershire and the Defendant moved that it might be laid in Middlesex where the Petition was exhibited But it was insisted for the Plaintiff that where a cause of Action ariseth in two places he hath his Election to lay it in either The Court held that the exhibiting of the Petition was the ground of the Action and though it conteined matter done in another place yet it shall be tried in the County where the Petition was delivered for suppose the Petition had contained Matter done beyond Sea c. Now in this Case the Action being brought in Middlesex the Defendant pleaded that the Chase was injured by the erecting the said Cottages by the digging of Pits and by the making of a Warren by Sir John Newton and that the other person Sir R. H. being then a Iustice of the Peace for the County of Gloucester upon Complaint to him made did not impose Penalties upon the Offenders but did abet the said Plaintiff by reason whereof the Deer were decreased from 1000 head to 400. To this Plea the Plaintiff demurred Mr. Pollexfen argued against the Plea first that it charged Sir R. H. with no particular Crime but enlargeth the Matter upon the Plaintiff and amounts to no more than the general Issue for the Question is whether the Defendant hath fasly prosecuted the Plaintiff before the King in Council which is only matter of fact and which is charged upon the Defendant and therefore he ought to have pleaded Not-Guilty 'T is true where the Defence consists in matters of Law there the Defendant may plead specially but where 't is purely fact the general Issue must be pleaded E contra E contra It was insisted upon that what is alledged in this Plea might be given in Evidence upon the general Issue but the Defendant may likewise plead it specially and not trust the Matter to the Lay-gents As in Conspiracy for procuring of the Plaintiff to be falsly and maliciously indicted of a Robbery Cro. Eliz. 871 900. 21 E. 3.17 27 Ass 12. Kelway 81. Moor 600. Rast Ent. 123. Sed nota This Defence was matter of Law the Defendants plead that they were robbed and suspecting the Plaintiff to be guilty procured a Warrant in order to have the Plaintiff examined before a Iustice of the Peace of which he had notice and absented himself but was afterwards committed to the Gaol by a Iudge of this Court who advised them to preferr a Bill of Indictment c. quae est eadem conspiratio this was adjudged a good Plea though it amounted to no more than the general Issue and all this matter might have been given in Evidence at the Trial. The Court except Iustice Allybon advised the Plaintiff to waive his Demurrer and the Defendant to plead the general Issue But Iustice Allybon took an Exception to the Declaration for that the Plaintiff had not alledged any damnification but only that he was compelled to appear and doth not shew how either by the Petition of the Defendant or by Summons c. He ought to set forth that he was summoned to appear before the King in Order to his discharge but to say coactus fuit comparere is incertain for that might be in the vindication of his Honour or Reputation He complains of a Petition exhibited against him which the Defendant hath answered by shewing to the Court sufficient matter which might reasonably induce him so to to and for that reason he held the Plea to be good Sed adjornatur Rex versus Hockenhul AN Information was exhibited against him for a Riot Misprision of a Clerk amended of which he was found guilty and this Exception was taken in arrest of Iudgment Memorandum quod ad general ' quarterial ' Session ' Pacis tent ' c. die Sabbati prox ' post quindenam Sancti Martini praesentat ' existit quod the Defendant 27 die Januarii in such a year vi armis c. So the Fact is laid after the Indictment which was exhibited against the Defendant at the Michaelmas Sessions and the Fact is laid to be in January following in the same year But the Attorny General said this was only a Misprision of the Clerk in titling the Record viz. in the Memorandum 8 Co. 156. 4 H. 6.16 10 Ass 26. Cro. Car. 144. and there was no fault in the Body of the Information and that it was amendable at the Common Law He cited some Cases to prove where amendments have been in the Cases of Subjects of greater Mistakes than here a fortiori it ought to be amended in the King's Case 'T is not only amendable at the Common Law 4 H. 6. c. 3. 8 H. 6. c. 12. Jones 421. but by several Statutes which extend to all Misprisions of Clerks except Treason Felony and Outlawry wherefore this mistake of Quinden ' Martini was amended and made Quinden ' Hillarii Rex versus Sellars THE Defendant was indicted at the Sessions in London for not attending at the Wardmote Inquest being chosen of the Iury for such a year Indictment quashed To this Indictment he pleaded the King's Grant to the Company of Cooks of which he was a Member by which Grant that Company is exempted from being put or summoned upon a Iury or Inquest before the Mayor or Sheriffs or Coroner of London c. And upon a Demurrer the Question was whether the Cooks are discharged by this Grant from their Attendance at the said Wardmote Inquest And for the King it was argued that they are not discharged Before the Iudgment upon the Quo Warranto brought against the City of London these Courts there were like the Hundred Courts in the County for as these were derived out of the County 4 Inst 249. so those were derived from the Lord Mayor's Court which is a Court of Record and erected for the better Government of the City and the Aldermen of every Ward had right to hold Leets there 1. But now the words of this Grant do not extend to this Case for the Cooks are thereby discharged only from being of a Iury before the Mayor Sheriffs or Coroner c. but the Court of Wardmote is held before neither for 't is held before the Alderman of the Ward 2. Dyer 269. The words in this Grant ought to be taken strictly viz. that Cooks shall be exempted if there be other sufficient Men in the Ward to serve besides and if this doth not appear the Grant is void but this is not alledged E contra E
Release or Confirmation and then his Council should advise what sort of Conveyance is proper But here it is to make an Assignment and such as the Parties had agreed on If a Man should be bound to give another such a Release as the Iudge of the Prerogative Court shall think fit 5 Co. 23. Lambs Case 1 Rol. Abr. 424. pl. 8. the person who is so bound must procure the Iudge to direct what Release shall be given because the Condition is for his benefit and he hath taken upon him to perform it at his Peril 'T is usual for Men to have Council on both sides to put their Agreements into method but in this Case it being left generally as Council shall direct what reason can be given why the Defendants Council shall not be intended especially when it seems by the penning of the Covenant he shall For an Assignment is to be made as Council shall direct and here being a Verdict for the Plaintiff it must now be presumed that the Defendants Council was first to give the advice and then he was to make the Assignment E contra E contra It was argued that first as to the Verdict 't is not materially objected in this Case because the Plea is non est factum so that nothing of the special matter could come in Evidence Now admitting this Covenant to be general yet one of the Parties must make his choice of Council before he can entitle himself to an Action All Deeds are taken according to the general intendment and therefore by this Covenant his Council is to advise to whom the Assignment is to be made 3 Bulstr 168. for if the Council of the Defendant should advise an insufficient Deed that would not have saved his Covenant Befides the Plaintiff hath not averred that Council did not advise and therefore the Defendant could not plead any thing but non est factum Adjornatur Anonymus A Pleint was removed out of the Lord Mayors Court by Habeas Corpus the Return whereof was Exceptions to a By-Law that the City of London was an ancient City Incorporate and that time out of mind there was a Custom that the Portage and unlading of all Coals and Grain coming thither should belong to the Mayor and Aldermen c. That there was a Custom for them to regulate any Custom within the City c. Then they set forth an Act of Common-Council by which the Porters of Billingsgate were made a Fellowship and that the Meeters of Corn should from time to time give notice to the Porters to unlade such Corn as should arrive there and that no Bargeman not being Free of the said Fellowship shall unlade any Corn upon the Forfeiture of 20 s. to be recovered in an Action brought in the Name of the Chamberlain and that the Party offending shall have no Essoign or Wager of Law Then they set forth the Iudgment in the Quo Warranto and the re-grant and that the Defendant not being of the said Fellowship did unlade one hundred Quarters of Malt c. Serjeant Thompson took many Exceptions to this By Law but the most material were 1. It appears upon the Return that the City of London hath assumed an Authority to create a Fellowship by Act of Common Council which they cannot for 't is a Prerogative of the Crown so to do and they have not averred or shewed any special Custom to warrant such an Authority 2. They have made this By-Law too general for if a Man should carry and unlade his own Goods there he is lyable to the Forfeiture in which Case he ought to be excepted 3. This Act of Common Council prohibits Bargemen not being Free of the Fellowship of Porters to unlade any Coals or Grain arriving there and they have not averred that the Malt unladed did arrive c. so they have not pursued the words of the By-Law 4. They say in this Law Godb. 107. that the person offending shall have no Essoign or Wager of Law which is a Parliamentary Power and such as an inferiour Iurisdiction ought not to assume Adjornatur Beak versus Thyrwhit THere was a Sentence in the Court of Admiralty Whether Trover will lie for a Ship after Sentence in Admiralty for the same Ship concerning the Taking of a Ship and afterwards an Executrix brought an Action of Trover and Conversion for the same The Defendant after an Imparlance pleads that at the time of the Conversion he was a Servant to King Charles the Second and a Captain of a Man of War called the Phoenix and that he did seize the said Ship for the Governour of the East-India Company she going in a trading Voiage to the Indies contrary to the King's Prohibition c. And upon a Demurrer these Exceptions were taken to this Plea 1. The Defendant sets forth that he was a Servant to the King but hath not shewed his Commission to be a Captain of a Man of War 2. That he seized the Ship going to the Indies contrary to the King's Prohibition and hath not set forth the Prohibition it self It was Argued by the Council contra That it may be a Question whether this was the Conversion for which this Action is brought for it was upon the Sea and the Defendant might plead to the Iuisdiction of this Court the Matter being then under the Cognizance of the Admiralty But as to the Substance of this Plea 't is not material for the Defendant either to set forth his Commission or the King's Prohibition he hath shewed enough to entitle the Court of Admiralty to a Iurisdiction of this Cause and therefore this Court cannot meddle with it for he expresly affirmeth that he was a Captain of a Man of War and did seize this Ship c. which must be intended upon the Sea so that the Conversion might afterwards be upon the Land Cro. Eliz. 685. yet the original cause arising upon the Sea shall and must be tried in the Admiralty and it having already received a determination there shall not again be controverted in an Action of Trover The Case of Mr. 3 Keb. 785. Hutchinson was cited to this purpose who killed Mr. Colson in Portugal and was acquitted there of the Murder the Exemplification of which Acquittal he woduced under the great Seal of that Kingdom being brought from Newgate by an Habeas Corpus to this Court notwithstanding the King was very willing to have him tried here for that Fact the consideration whereof he referred to the Iudges who all agreed that he being already acquitted by their Law could not be tryed again here Adjornatur Smith versus Pierce A Special Verdict was found in Ejectment A Term for years was devised for payment of Debts the Remainder over in Tail he in Remainder enters and levies a Fine and settles the Land upon his Wife for life and dies the Wife surviving and the Debts not paid whether this Term is barred by
4. It will lie for such words for which an Action will not 139 5. For a Riot in unduly electing of an Alderman of Bristol not being summoned by the Mayor 5 6. Exception to it viz. doth not say that 't is antiqua Villa or whether it was a Corporation by Charter or Prescription of which the Court cannot judicially take notice if not shewn 5 7. Doth not say that any Charter was granted to the City of Bristol where the Riot was supposed to be committed 7 8. Must be very exact and certain for 't is not aided by any Statute of Ieofails ibid. 9. For treasonable words preached in a Sermon viz. We have had two wicked Kings together c. whether good without some preceding discourse of the King 53 54 69 10. For Subornation of Perjury in perswading another to swear and doth not set forth that the Oath was made that it might appear that the thing sworn was false 122 11. Quashed because the words per Sacramentum duodecim proborum legalium hominum were left out ibid. 12. For using a Trade not being an Apprentice upon 5 Eliz. and doth not averr that it was a Trade used before the making of the Act 152 13. For not serving upon a Wardmote Enquest quashed for incertainty 168 14. For Perjury by the Name of A. B. de Parochia de Algate and did not shew in what County it was for which reason it was held not good 139 15. In Indictments there must be an addition to the person and place viz. To the person of what Estate and Degree he is To the place viz in what Hamlet Town Place and County he liveth 139 16. Caption was coram Justiciariis ad pacem dicti Domini Regis conservand ' and did not say nunc whether good ibid. 17. For Burglary the very day need not be set down for if it be either before or after the Offence the Jury ought to find according to the truth 141 18. 'T is sufficient to lay the Fact to be committed in Parochia c. without laying a Vill though Parish is an Ecclesiastical division 158 19. Per Sacramentum 12 praesentat ' existit modo forma sequen ' Midd. viz. Juratores pro Domino Rege praesentant it should have been praesentat ' existit quod c. and not modo forma quashed 201 20. The certainty of the Fact ought to be particularly alledged if for Murder it must be alledged that a Stroak was given 202 21. Pardon was pleaded and Judgment quod Defendens eat sine die but being convicted of Manslaughter his Goods were forfeited and though he was out of the Court by this Pardon and Judgment yet the Indictment was quashed upon a Motion for a fault in it and this was to prevent the Seisure 202 22. Two were indicted for a Confederacy one of them was acquitted and the other found guilty the acquittal of one is the discharge of the other 220 Inducement In Trover the Contract is but Inducement the Cause of Action is upon the Conversion 322 Inferior Court See Court Infant See Copyhold 2. Custom 5 7. Evidence 3. After three Proclamations in a Court Baron of a Mannor he did not come to be admitted to a Copy-hold Estate and held no Forfeiture 223 2. Had an Estate upon Condition to be performed by him and 't is broken during his Minority the Estate is gon for ever 222 224 226 3. The Law will not allow the Priviledge of Infancy to work a wrong to any body 222 226 4. Shall not be prejudiced by the Latches of another but shall be answerable for himself 222 223 5. Custom to be admitted after three Proclamations will not barr him if beyond Sea 222 6. He is not obliged to be admitted during his Infancy 223 7. His Feoffment is no Forfeiture at the Common Law ibid. 8. If he doth not present to a Church within six Months it shall lapse ibid. 9 He may be admitted to a Copy-hold but not obliged to pay the Fine during his Nonage 224 10 May be bound by acts of Necessity and by some Customs ibid. 11 Where he hath a right it shall be preserved after a Fine and Non-claim but he hath no right before admittance to a Copyhold 226 12. Cases of Coverture and Infancy are guided by the same reason of Law so are Cases of Infants and Lunaticks ibid. 13. Where he brought an Audita Querela to avoid a Statute entred into by him in his minority 229 14. A Surrender made by an Infant is void 303 15. Where Acts done by him are void in themselves where voidable 307 16. When he is made Defendant he must appear by Guardian and not by Attorny for he hath not capacity to choose one the appearance by Guardian is the Act of the Court when he is Plaintiff he may sue per Prochein Amy 236 17. Whether in Replevin one of them who made Cognizance being an Infant may do it per Attornatum it may be pleaded in Abatement 248 18. If he is Administrator he may bring an Action of Debt per Attornatum because he sueth in the right of another 248 19. Where he recovers as Plaintiff the Defendant shall not assign infancy for Error ibid. 20. Answer of his Guardian in Chancery shall not be read as Evidence at Law to conclude him 259 21. He is not capable to take a Surrender because he cannot give his assent which is an essential requisite to a Surrender 298 22. Release by an Infant Executor is no bar for it worketh the destruction of his Estate 303 23. Cannot surrender a future Interest by his acceptance of a new Lease or make an absolute Surrender of a Term by Deed 304 Information For a Forgery brought against a Coroner who inserted the Names of two persons in an Indictment upon his Enquest for a Murder whom the Jury had not found Guilty 66 2. For a Riot in breaking a Bank and diverting a Watercourse the Jury found quoad fractionem Ripae guilty and quoad Riotam not guilty for which reason the Judgment was arrested 73 3. For going Armed to terrifie the People 't is an Offence at Common Law 118 4. For forging quoddam scriptum per quod A. was bound which cannot be if the Bond was forged 104 5. For Perjury in a Deposition taken before Commissioners in Chancery whether they ought to be present to testifie that the Defendant is the same person 116 6. An Information of Perjury will not lye against a Person for Swearing to the value of Lands if not true 134 7. Upon the 5th of Eliz. against a Turkey-Merchant for imploying Men in his House to dress Cloath it was held to be exercising the Trade of a Cloath-Worker 315 Inn-Keeper See Pleading 11. Inquisition See Melius Inquirendum Found to be an Ideot per spatium octo Annorum those words are surplusage for he must be so a nativitate 44 2. Quashed because the year of the King was omitted 80 3. Taken